Brief Facts
- On 31.05.2015, the victim was missing and as per the last seen witness, she was seen going to the house of Munna Pandey (Appellant) for watching television. While the Complainant went to the house of Appellant in search of the victim, it was found that the house of the Appellant was locked. When the lock of the room of the Appellant was opened, dead body of the victim was found beneath the bed.
- The Complainant claimed that Pritam Tiwary and the Appellant both after committing rape with the 11 years old victim by way of throttling had killed her and the dead body was concealed in his room. The defence contended that neither the medical examination was done under section 53 Cr.P.C nor the recovered articles were sent for forensic examination and there were some inconsistencies in the testimonies of the prosecution witnesses. All the incriminating circumstances were not put to the accused under section 313 of the Cr.P.C.
- However, the trial court found the Appellant guilty and awarded death penalty against which the Appellant filed an appeal and also reference was made to the High Court under section 366 of the CrPC wherein the High Court upheld the order of the Trial Court. Hence the present appeal.
Issues
- Whether Section 162 of the Cr.P.C prevents the Judge from asking suo moto questions to the witness and to point out the contradictions from the statement of the witness recorded by the police officers during the investigation?
- What is the concept of fair trial and what should be the role of a judge while deciding the case?
- Duties of the High Court while considering the Reference Petition against the award of the death penalty under section 366 of the Cr.P.C.
Held
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The Apex Court allowed the Appeal and remit the matter back to the High Court for deciding the reference under Section 366 of the CrPC in the manner it ought to have been decided. The Supreme Court recorded the following reasons for acquitting the Appellant:
a) High Court failed to consider that co-accused Pritam Tiwari was also inside the room.
b) Despite taking the permission from the Court, the SHO has not sent the recovered article for FSL and during his examination he stated that he was instructed by his seniors not to procure the FSL report.
c) Medical Examination of accused was not conducted.
d) Manner in which statement under section 313 of the CrPC was conduct as the factors considered by the Trial Court to hold the guilt of the Appellant were never put to him during his examination under section 313 of the CrPC.
e) In the original FIR and statements of witnesses under section 161 CrPC it was deposed that accused “Pritam Tiwari” was hiding inside the room. However, during the course of Trial the witnesses named the Appellant instead of “Pritam Tiwari”. However, this material improvement in the version of the witnesses was not pointed out by defence, prosecution and even by the Trial Court.
Interpretation of section 162 CrPC and section 165 of the Evidence Act. -
It was the duty of the presiding officer to put relevant questions to these witnesses in exercise of his powers under Section 165 of the Evidence Act. Section 162 of the CrPC does not prevent a Judge from looking into the record of the police investigation. Being a case of rape and murder and as the evidence was not free from doubt, the Trial Judge ought to have acquainted himself, in the interest of justice, with the important material and also with what the only important witnesses of the prosecution had said during the police investigation.
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Had he done so, he could without any impropriety have caught the discrepancies between the statements made by these witnesses to the investigating officer and their evidence at the trial, to be brought on the record by himself putting questions to the witnesses under Section 165 of the Evidence Act. There is, in our opinion, nothing in Section 162 CrPC to prevent a Trial Judge, as distinct from the prosecution or the defence, from putting to prosecution witnesses the questions otherwise permissible, if the justice obviously demands such a course. In the present case, we are strongly of the opinion that is what, in the interests of justice, the Trial Judge should have done but he did not look at the record of the police investigation until after the investigating officer had been examined and discharged as a witness. Even at this stage, the Trial Judge could have recalled the officer and other witnesses and questioned them in the manner provided by Section 165 of the Evidence Act. It is regrettable that he did not do so.
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The first part of Section 162 says that the statement made by a person to a police officer during investigation cannot be used for any purpose other than that mentioned in the proviso. We lay stress on the word “purpose”. 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. The 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.
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The limitation or restriction imposed in the first part of Section 162 CrPC 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 way purport to take away the power that lies in the Court to look into any document, that it considers necessary to look into for the ends of justice and to put such questions to a witness as it may consider necessary to elicit the truth. We realise that the proviso would prevent the Court from using statements made by a person to a police officer in the course of investigation for any other purpose than that mentioned in the proviso 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.
Free and fair Trial -
Free and fair trial is sine-qua-non of Article 21 of the Constitution of India. 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.
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The role of a judge in dispensation of justice after ascertaining the true facts no doubt is very difficult one. In the pious process of unravelling the truth so as to achieve the ultimate goal of dispensing justice between the parties the judge cannot keep himself unconcerned and oblivious to the various happenings taking place during the progress of trial of any case. No doubt he has to remain very vigilant, cautious, fair and impartial, and not to give even a slightest of impression that he is biased or prejudiced either due to his own personal convictions or views in favour of one or the other party. This, however, would not mean that the Judge will simply shut his own eyes and be a mute spectator, acting like a robot or a recording machine to just deliver what stands feeded by the parties.
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This Court has condemned the passive role played by the Judges and emphasized the importance and legal duty of a Judge to take an active role in the proceedings in order to find the truth to administer justice and to prevent the truth from becoming a casualty.
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If the Courts are to impart justice in a free, fair and effective manner, then the presiding judge cannot afford to remain a mute spectator totally oblivious to the various happenings taking place around him, more particularly, concerning a particular case being tried by him.
Duty of High Court while deciding reference
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Ordinarily, in a criminal appeal against conviction, the appellate court, under Section 384 of the CrPC, can dismiss the appeal, if the Court is of the opinion that there is no sufficient ground for interference, after examining all the grounds urged before it for challenging the correctness of the decision given by the Trial Court. It is not necessary for the appellate court to examine the entire record for the purpose of arriving at an independent decision of its own whether the conviction of the appellant is fully justified. The position is, however, different where the appeal is by an accused who is sentenced to death, so that the High Court dealing with the appeal has before it, simultaneously with the appeal, a reference for confirmation of the capital sentence under Section 366 of the CrPC. On a reference for confirmation of sentence of death, the High Court is required to proceed in accordance with Sections 367 and 368 respectively of the CrPC and the provisions of these Sections 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 the Court considers it desirable in order to ascertain the guilt or the innocence of the convicted person.
Relevant Para No.
- 43, 46, 65, 66, 67, 68, 70 and 71