‘Judge mute spectator, serious lapses in probe’ — SC order sending death row case back to Patna HC

SC was hearing appeal filed by man sentenced to death by a trial court for rape and murder of a 10-yr-old. Defence counsel argued that witness statements had contradictions.

Supreme Court of India | ANI file photo

New Delhi: No forensic report, no medical examination, a trial court judge who remained a ‘mute spectator’, lapses on the part of the high court, and contradictory witness statements — The Supreme Court cited all of this to come down heavily on every cog of the criminal justice machinery while setting aside a 2018 judgement of the Patna High Court confirming a death penalty and asking it to rehear the case.

The bench comprising Justices B.R. Gavai, J.B. Pardiwala and Prashant Kumar Mishra said that it had “no other alternative but to set aside the impugned judgement of the High Court and remit the matter back to the High Court”.

In the judgement passed last week, the top court condemned the “passive role” played by the judges who heard the case. “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,” it said.

The SC bench was hearing an appeal filed by Munna Pandey, who was sentenced to death by a trial court in February 2017, for the rape and murder of a 10-year-old girl in 2015.

The prosecution had alleged that on the day the victim went missing, Pandeytook her along to his house to watch TV at 9am. Her body was found the next day in a room said to be owned by Pandey, under the bed. Pandey’s co-accused was found with the body. The co-accused was found to be a juvenile and was sentenced to three years of jail.

However, once the Supreme Court analysed the documents related to the case, it found major contradictions in what the witnesses told the police, as compared to what they said in the trial court. This included the fact that some of the witnesses told the police that the juvenile co-accused had taken the girl to watch TV and so she was last seen with him, while they told the court later that it was Pandey who had taken her.

The apex court has now ordered better legal representation for him before the high court, observing, “He may not be in a position to engage a lawyer of his choice. Probably, he may not be in a position to even understand what is said in this judgement. In such circumstances, the High Court may request a seasoned criminal side lawyer to appear on behalf of the appellant and assist the Court.”

The Supreme Court also asserted that Pandey was in jail for more than nine years now, and that “his family might be in dire straits”. It, therefore, directed that his appeal should be taken up for hearing by the high court expeditiously.

The top court also requested the judges who would be hearing the matter to give priority to the appeal and decide it at the earliest.

‘Very serious lapses’

Before the Supreme Court, Pandey’s lawyer had, among other things, submitted that the case was based purely on circumstantial evidence, and that his medical examination was not conducted after his arrest for collecting DNA samples.

He further asserted that the prosecution did not place exculpatory evidence (i.e. evidence favourable to the defendant) against Pandey on record. For instance, the lawyer pointed out that the pathological report of the vaginal swab of the victim said ‘spermatozoa not found’, but this report was not produced before the trial court as evidence, because it would have raised doubts on the allegations of rape.

Accepting such arguments, the top court observed that it had noticed a “few, very serious lapses in the entire investigation”.

It especially felt that the oral evidence of the investigating officer “disturbed us a lot”. It noted that the officer had sought permission to send the articles seized from Pandey to the Forensic Science Laboratory (FSL), Patna for examination. However, in her cross-examination before the trial court, she admitted that she did not procure the FSL report “following the instructions of her senior officers,” the court noted.

Calling this just the “tip of the iceberg”, and a “a very serious flaw on the part of the investigating officer”, it then asserted, “Who are these senior officers of PW (prosecution witness) 5 and why they instructed the PW 5 not to procure the FSL report should have been a subject matter of inquiry by both, the State as well as the trial court.”

Another serious flaw pointed out by the court was the failure to subject Pandey to a medical examination. “No explanation, much less any reasonable explanation, has been offered for such a serious flaw on the part of the investigating officer.”

The law specifically makes provision for examination of a rape accused by a medical practitioner. While the provision is not mandatory, the Supreme Court has held in the past that the failure of the prosecution to produce DNA evidence, especially in cases where the victim is dead, can give rise to a serious doubt on the prosecution case.

Who took her to watch TV?

Looking at how the trial court examined the accused, the apex court said it was “shocked” to see that only four questions were put to Pandey to enable him to explain the incriminating circumstances against him. However, there were several circumstances against him that the trial court looked into, without allowing Pandey to offer a proper explanation.

The apex court then asserted that since this case was related to the rape and murder of a 10-year-old girl, it “looked into the entire record very closely”. The judges even called for the FIR, the charge sheet, and the statements given by witnesses to the police. “Our mind got clouded with suspicion. Ultimately, we noticed something very shocking,” the SC bench said.

When the court called for the charge sheet, the FIR, and statements of a few witnesses, it realised that while all the witnesses told the police that the juvenile co-accused came to the victim’s house and taken her along to his house to watch TV, they changed their statement in court saying that the victim was last seen with Pandey instead.

“Neither the defence counsel, nor the public prosecutor, nor the presiding officer of the Trial Court and unfortunately, even the High Court thought fit to look into the aforesaid aspect of the matter and try to reach to the truth,” the court asserted.

The judges said that it was the duty of the defence counsel to confront the witnesses with their police statements so as to prove the contradictions.

While the SC bench said that the defence counsel “had no idea how to contradict a witness with his or her police statements”, the lapse of the public prosecutor to not have confronted them with the contradiction, was also “something very unfortunate”.

‘A mute spectator’

The trial court judge, the apex court said, “also remained a mute spectator”. It observed, “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.”

It said that had the judge done so, he could have caught the discrepancies between the statements made by these witnesses to the investigating officer and the evidence at the trial.

The apex court also felt that the high court had “completely overlooked” such aspects, and that if it “would have taken little pains to look into the record”, it would have taken recourse to Section 367 of the CrPC. This provision allows the high court to direct further enquiry or ask for additional evidence in cases.

‘Judge cannot act like a robot’

In the second paragraph of the 68-page judgement, the Supreme Court pointed out that the high court was not just hearing the accused person’s appeal, but was also hearing a reference by the sessions court for confirmation of the death sentence under Section 366 of the CrPC.

Whenever a trial court passes a death sentence, it cannot be executed unless it is confirmed by the relevant high court, to which the proceedings have to be referred under Section 366 of the CrPC.

It then reiterated that the Supreme Court has time and again highlighted that in such cases, the high court is under an obligation to “not only see whether the order passed by the Sessions Court is correct but it is under an obligation to examine the entire evidence for itself, apart from and independently of the Sessions Court’s appraisal and assessment of that evidence”.

In a separate section titled “concept of fair trial”, the top court spoke about a judge’s role in such a trial. It observed that while a judge needs to ensure that he does not give the slightest hint of bias, “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.”

“The fair trial is possible only when the court takes active interest and elicits all relevant information and material necessary so as to find out the truth for achieving the ultimate goal of dispensing justice with all fairness and impartiality to both the parties.”

The SC then sent back the appeal to the high court, for deciding the death reference “in the manner it ought to have been decided, more particularly keeping in mind the serious lapses on the part of the defence in not proving major contradictions in the form of material omissions surfacing from the oral evidence of the prosecution witnesses”.

In a scathing comment on the high court judgement, the apex court said that if anybody asks it what the “ratio” (rationale or principles on which a court reaches its decision), the answer would be a quote by American lawyer Clarence Darrow: “Justice has nothing to do with what goes on in the courtroom; Justice is what comes out of a courtroom.”

(Edited by Tony Rai)