Munna Pandey vs State of Bihar

Held: s.162 says that no statement made by any person to a police officer in the course of an investigation, whether it be recorded or not, shall be used for the purpose save as provided in the first proviso to the Section – The first proviso says that when any witness, whose statement has been reduced into writing by the police in accordance with the provisions of the CrPC, is called for the prosecution in inquiry or trial the accused with the permission of the court may contradict the witnesses in the manner provided by s.145, Evidence Act – The purpose mentioned in the proviso is the purpose of contradicting the evidence given in favour of the State by a prosecution witness in Court by the use of the previous statement made by such witness to the police officer – Purpose is to discredit the evidence given in favour of the prosecution by a witness for the State – The Section prohibits the use of the statement for any other purpose than this – It does not say that the statement can only be used at the request of the accused – The limitation or restriction imposed in the first part of s.162 relates to this purpose for which the statement may be used; it does not relate to the procedure which may be adopted to effect this purpose – The proviso which sets out the limited purpose also mentions the way in which an accused person may contradict the witness with his previous statement made to the Police, but it does not in any other way affect the power that lies in the Court to look into documents or put questions to witnesses suo motu – Evidence Act, 1872 – s.165. [Para 46]

Practice and Procedure – Criminal Law – Duty of Presiding Judge – Evidence Act, 1872 – s.165:

Held: In many sessions cases when an advocate appointed by the Court appears and particularly when a junior advocate not having much experience of the procedure of the Court, has been appointed to conduct the defence of an accused person, it is the duty of the Presiding Judge to draw his attention to the statutory provisions of s.145, Evidence Act – No Court should allow a witness to be contradicted by reference to the previous statement in writing or reduced to writing unless the procedure set out in s.145, Evidence Act has been followed – It is possible that if the attention of the witness is drawn to these portions with reference to which it is proposed to contradict him, he may be able to give a perfectly satisfactory explanation and in that event the portion in the previous statement which would otherwise be contradictory would no longer go to contradict or challenge the testimony of the witness – In a case like the present one, where the evidence given in Court implicates persons who not mentioned in the FIR or police statements, it is always advisable and far more important for the Trial Judge to look into the police papers in order to ascertain whether the persons implicated by witnesses, at the trial had been implicated by them during the investigation. [Paras 47 and 48]

Code of Criminal Procedure, 1973 – s.53(1), 53A – Medical examination – Importance – Circumstantial evidence – Rape victim dead:

Held: s.53(1) enables a police officer not below the rank of subinspector to request a registered medical practitioner, to make such an examination of the person arrested, as is reasonably necessary to ascertain the facts which may afford such evidence, whenever a person is arrested on a charge of committing an offence of such a nature that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence – By Amendment Act 25 of 2005, a new Explanation was substituted u/s.53, in the place of the original Explanation – Simultaneously with the substitution of a new Explanation u/s.53, Act

25 of 2005 also inserted a new provision i.e. s.53A – Medical examination of an accused assumes great importance in cases where the victim of rape is dead and the offence is sought to be established only by circumstantial evidence – Penal Code, 1860 – ss.302, 376 – Code of Criminal Procedure (Amendment) Act, 2005. [Paras 25-27 and 29]

Code of Criminal Procedure, 1973 – s.313 – Additional circumstances relied upon, not put to the appellant – Impropriety: Held: The further statement of the appellant-convict was recorded u/s. 313 – It was shocking to see the manner in which the Trial Court recorded the same – In all, four questions were put to the appellant to enable him to explain the incriminating circumstances pointing towards his complicity in the alleged crime – However, for holding the appellant guilty of the alleged crime, the Trial Court looked into the additional circumstances none of which were put to the appellant so that he could offer a proper explanation to the same. [Para 32]

Evidence Act, 1872 – ss.145, 161 – Duty of defence counsel, public prosecutor:

Held: It was the duty of the defence counsel to confront the witnesses with their police statements so as to prove the contradictions in the form of material omissions and bring them on record – The defence counsel had no idea how to contradict a witness with his or her police statements in accordance w/s.145, Evidence Act – Lapse on the part of public prosecutor is also very unfortunate – The public prosecutor knew that the witnesses were deposing something contrary to what they had stated before the police in their statements recorded u/s.161 – It was his duty to bring to the notice of the witnesses and confront them with the same even without declaring them as hostile – If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the Court cannot suo motu make use of statements to police not proved in compliance w/s.145, Evidence Act – Therefore, it is of utmost importance to prove all major contradictions in the form of material omissions in accordance with the procedure as established u/s.145, Evidence Act and bring them on record – It is the duty of the defence counsel to do so . [Paras 41 and 50] Code of Criminal Procedure, 1973 – Chapter XXVIII- ss.366371; Chapter XXIX- ss.372-394 – Role and duty of High Court in confirmation cases:

Held: Power to acquit the person can be exercised by the High Court even without there being any substantive appeal on the part of the accused challenging his conviction – To that extent, the proceedings under Chapter XXVIII which deal with “submission of death sentences for confirmation” is a proceeding in continuation of the trial – ss.367, 368 entitle the High Court to direct further enquiry or to take additional evidence and the High Court may, in a given case, even acquit the accused person – Scope of the chapter is wider – Chapter XXIX deals with “Appeals” – s.391 also entitles the appellate court to take further evidence or direct such further evidence to be taken – s.386 then enumerates powers of the appellate court which inter alia includes the power to “reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate court or committed for trial” – Powers of the appellate court are equally wide – The High Court in the present case was exercising powers both u/Chapters XXVIII and XXIX, CrPC – ss.367, 368 make it clear that the duty of the High Court, in dealing with the reference, is not only to see whether the order passed by the Sessions Judge is correct, but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if considered desirable in order to ascertain the guilt or the innocence of the convicted person. [Paras 58 and 59]

Code of Criminal Procedure, 1973 – ss.367, 368 and proviso thereto – Duty of High Court u/s.367:

Held: Under the proviso to s.368, no order of confirmation is to be made until the period allowed for preferring the appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of, so that, if an appeal is filed by a condemned prisoner, that appeal has to be disposed of before any order is made in the reference confirming the sentence of death – In disposing of such an appeal, however, it is necessary that the High Court should keep in view its duty u/s.367 – It must examine the appeal record for itself, arrive at a view whether a further enquiry or taking of additional evidence is desirable or not, and then come to its own conclusion on the entire material on record whether conviction of the condemned prisoner is justified and the sentence of death should be confirmed. [Para 59]

Criminal Law – Criminal justice system – Accusatorial/adversarial system:

Held: For the dispensation of criminal justice, India follows the accusatorial or adversarial system of common law – In the accusatorial or adversarial system, the accused is presumed to be innocent; prosecution and defence each put their case; judge acts as an impartial umpire and while acting as a neutral umpire sees whether the prosecution has been able to prove its case beyond reasonable doubt or not. [Para 66] Constitution of India – Article 21 – Free and fair trial, a sine-quanon: Held: Free and fair trial is sine-qua-non of Article 21 – If the criminal trial is not free and fair, then the confidence of the public in the judicial fairness of a judge and the justice delivery system would be shaken – Denial to fair trial is as much injustice to the accused as to the victim and the society – No trial can be treated as a fair trial unless there is an impartial judge conducting the trial, an honest, able and fair defence counsel and equally honest, able and fair public prosecutor – A fair trial necessarily includes fair and proper opportunity to the prosecutor to prove the guilt of the accused and opportunity to the accused to prove his innocence. [Para 67] Criminal Law – Criminal justice system – Role of a judge in dispensation of justice – Discussed. [Para 53, 54, 68 and 70] Committees – Malimath Committee on Judicial Reforms – Duty of Courts to search for truth – Observations of the Committee – Discussed. [Para 69]

LIST OF CITATIONS AND OTHER REFERENCES

Jumman v. State of Punjab AIR 1957 SC 469: Rama Shankar Singh @ Ram Shankar Roy v. State of West Bengal AIR1962 SC 1239: [1962] Suppl. SCR 49; Bhupendra Singh v. State of Punjab AIR 1968 SC 1438: [1968] SCR 404; Chotkau v. State of Uttar Pradesh (2023) 6 SCC 742; Tara Singh v. State AIR 1951 SC 441: [1951] SCR 729; V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588: [2015] 8 SCR 1; Raghunandan v. State of U.P. (1974) 4 SCC 186: [1974] 3 SCR 92, Dandu Lakshmi Reddy v. State of A.P. (1999) 7 SCC 69: [1999] 1 Suppl. SCR 535; State of Rajasthan v. Ani @ Hanif and Ors. (1997) 6 SCC 162: [1997] 1 SCR 199; Ram Chander v. State of Haryana (1981) 3 SCC 191: [1981] 3 SCR 12; Masalti v. State of U.P. (1964) 8 SCR 133; Kunal Majumdar v. State of Rajasthan (2012) 9 SCC 320: [2012] 8 SCR 706 – relied on.

Sessions Judge, Nellore v. Intha Ramana Reddy 1972 Cri.L.J. 1485 – referred to.

Jones v. National Coal Board 1957 (2) All ER 155 (CA) – referred to. Sarkar (1999, 15th pp. 2319 etc.); Phipson (Evidence, 1999, 15th Ed, para 1.21) – referred to.

OTHER CASE DETAILS INCLUDING IMPUGNED

ORDER AND APPEARANCES