Issue for consideration: Whether the High Court erred in confi rmingthe conviction and death sentence passed by trial court against appellantaccusedfor off ences punishable u/ss.302, 376, IPC and s.4, POCSO Act,2012, despite serious lapses in the entire investigation.Penal Code, 1860 – ss.302, 376 – Protection of Children from SexualOff ences Act, 2012 – s.4 – Serious lapses in investigation, confi rmationof conviction and death sentence – Propriety:Held: s.162, CrPC does not prevent a Judge from looking into therecord of the police investigation – Being a case of rape and murder of a 10year old girl and as the evidence was not free from doubt, the Trial Judgeought to have acquainted himself with the important material and also withwhat the only important witnesses of the prosecution had said during thepolice investigation – There is nothing in s.162, CrPC which prevents a TrialJudge from looking into the papers of the chargesheet suo motu and himselfusing the statement of a person examined by the police recorded therein forthe purpose of contradicting such person when he gives evidence in favour ofthe State as a prosecution witness – The Judge may do this or he may makeover the recorded statement to the lawyer for the accused so that he may useit for this purpose – Case of the witnesses before the police was that it wasco-accused who had come to the house of the victim on the fateful day andhad taken her to his house to watch TV – All the statements further revealthat it was co-accused who was found locking the door when the witnessesenquired with him about the whereabouts of the victim– However, neither the defence counsel nor the public prosecutor nor the presiding offi cer of theTrial Court and even the High Court thought fi t to look into the aforesaidaspect of the matter and try to reach to the truth – The presiding offi cer ofthe Trial Court remained a mute spectator – It was the duty of the presidingoffi cer to put relevant questions to these witnesses in exercise of his powersu/s.165, Evidence Act – Impugned judgment set aside – Matter remittedback to the High Court for deciding the reference u/s.366, CrPC keepingin mind the serious lapses on the part of the defence in not proving majorcontradictions in the form of material omissions surfacing from the oralevidence of the prosecution witnesses – Code of Criminal Procedure, 1973– ss.162, 366 – Evidence Act, 1872 – s.165. [Paras 39, 40, 43, 47 and 73]Code of Criminal Procedure, 1973 – s.162 – Proviso – ‘Purpose’mentioned therein:Held: s.162 says that no statement made by any person to a policeoffi cer in the course of an investigation, whether it be recorded or not, shallbe used for the purpose save as provided in the fi rst proviso to the Section– The fi rst proviso says that when any witness, whose statement has beenreduced into writing by the police in accordance with the provisions ofthe CrPC, is called for the prosecution in inquiry or trial the accused withthe permission of the court may contradict the witnesses in the mannerprovided by s.145, Evidence Act – The purpose mentioned in the provisois the purpose of contradicting the evidence given in favour of the State bya prosecution witness in Court by the use of the previous statement madeby such witness to the police offi cer – Purpose is to discredit the evidencegiven in favour of the prosecution by a witness for the State – The Sectionprohibits the use of the statement for any other purpose than this – It doesnot say that the statement can only be used at the request of the accused– The limitation or restriction imposed in the fi rst part of s.162 relates tothis purpose for which the statement may be used; it does not relate to theprocedure which may be adopted to eff ect this purpose – The proviso whichsets out the limited purpose also mentions the way in which an accusedperson may contradict the witness with his previous statement made to thePolice, but it does not in any other way aff ect the power that lies in the Courtto look into documents or put questions to witnesses suo motu – EvidenceAct, 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 theCourt appears and particularly when a junior advocate not having muchexperience of the procedure of the Court, has been appointed to conductthe defence of an accused person, it is the duty of the Presiding Judge todraw his attention to the statutory provisions of s.145, Evidence Act – NoCourt should allow a witness to be contradicted by reference to the previousstatement in writing or reduced to writing unless the procedure set out ins.145, Evidence Act has been followed – It is possible that if the attention ofthe witness is drawn to these portions with reference to which it is proposedto contradict him, he may be able to give a perfectly satisfactory explanationand in that event the portion in the previous statement which would otherwisebe contradictory would no longer go to contradict or challenge the testimonyof the witness – In a case like the present one, where the evidence given inCourt 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 intothe police papers in order to ascertain whether the persons implicated bywitnesses, at the trial had been implicated by them during the investigation.[Paras 47 and 48]Code of Criminal Procedure, 1973 – s.53(1), 53A – Medicalexamination – Importance – Circumstantial evidence – Rape victimdead:Held: s.53(1) enables a police offi cer not below the rank of subinspectorto request a registered medical practitioner, to make such anexamination of the person arrested, as is reasonably necessary to ascertainthe facts which may aff ord such evidence, whenever a person is arrested ona charge of committing an off ence of such a nature that there are reasonablegrounds for believing that an examination of his person will aff ord evidenceas to the commission of an off ence – By Amendment Act 25 of 2005, a newExplanation was substituted u/s.53, in the place of the original Explanation– Simultaneously with the substitution of a new Explanation u/s.53, Act25 of 2005 also inserted a new provision i.e. s.53A – Medical examinationof an accused assumes great importance in cases where the victim of rapeis dead and the off ence is sought to be established only by circumstantialevidence – 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 – Additionalcircumstances relied upon, not put to the appellant – Impropriety:Held: The further statement of the appellant-convict was recordedu/s. 313 – It was shocking to see the manner in which the Trial Court recordedthe same – In all, four questions were put to the appellant to enable him toexplain the incriminating circumstances pointing towards his complicity inthe alleged crime – However, for holding the appellant guilty of the allegedcrime, the Trial Court looked into the additional circumstances none ofwhich were put to the appellant so that he could off er a proper explanationto the same. [Para 32]Evidence Act, 1872 – ss.145, 161 – Duty of defence counsel, publicprosecutor:Held: It was the duty of the defence counsel to confront the witnesseswith their police statements so as to prove the contradictions in the formof material omissions and bring them on record – The defence counsel hadno idea how to contradict a witness with his or her police statements inaccordance w/s.145, Evidence Act – Lapse on the part of public prosecutoris also very unfortunate – The public prosecutor knew that the witnesseswere deposing something contrary to what they had stated before the policein their statements recorded u/s.161 – It was his duty to bring to the noticeof the witnesses and confront them with the same even without declaringthem as hostile – If the witness was not confronted with that part of thestatement with which the defence wanted to contradict him, then the Courtcannot suo motu make use of statements to police not proved in compliancew/s.145, Evidence Act – Therefore, it is of utmost importance to proveall major contradictions in the form of material omissions in accordancewith the procedure as established u/s.145, Evidence Act and bring them onrecord – It is the duty of the defence counsel to do so . [Paras 41 and 50]Code of Criminal Procedure, 1973 – Chapter XXVIII- ss.366-371; Chapter XXIX- ss.372-394 – Role and duty of High Court inconfi rmation cases:Held: Power to acquit the person can be exercised by the High Courteven without there being any substantive appeal on the part of the accusedchallenging his conviction – To that extent, the proceedings under ChapterXXVIII which deal with “submission of death sentences for confirmation” is a proceeding in continuation of the trial – ss.367, 368 entitle the HighCourt to direct further enquiry or to take additional evidence and the HighCourt may, in a given case, even acquit the accused person – Scope ofthe chapter is wider – Chapter XXIX deals with “Appeals” – s.391 alsoentitles the appellate court to take further evidence or direct such furtherevidence to be taken – s.386 then enumerates powers of the appellate courtwhich inter alia includes the power to “reverse the fi nding and sentenceand acquit or discharge the accused, or order him to be re-tried by a courtof competent jurisdiction subordinate to such appellate court or committedfor trial” – Powers of the appellate court are equally wide – The High Courtin the present case was exercising powers both u/Chapters XXVIII andXXIX, CrPC – ss.367, 368 make it clear that the duty of the High Court, indealing with the reference, is not only to see whether the order passed bythe Sessions Judge is correct, but to examine the case for itself and evendirect a further enquiry or the taking of additional evidence if considereddesirable in order to ascertain the guilt or the innocence of the convictedperson. [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 confi rmation is to bemade until the period allowed for preferring the appeal has expired, or, ifan appeal is presented within such period, until such appeal is disposedof, so that, if an appeal is fi led by a condemned prisoner, that appeal hasto be disposed of before any order is made in the reference confi rming thesentence of death – In disposing of such an appeal, however, it is necessarythat the High Court should keep in view its duty u/s.367 – It must examinethe appeal record for itself, arrive at a view whether a further enquiryor taking of additional evidence is desirable or not, and then come to itsown conclusion on the entire material on record whether conviction ofthe condemned prisoner is justifi ed and the sentence of death should beconfi rmed. [Para 59]Criminal Law – Criminal justice system – Accusatorial/adversarialsystem:Held: For the dispensation of criminal justice, India follows theaccusatorial or adversarial system of common law – In the accusatorial or adversarial system, the accused is presumed to be innocent; prosecution anddefence each put their case; judge acts as an impartial umpire and whileacting as a neutral umpire sees whether the prosecution has been able toprove 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 criminaltrial is not free and fair, then the confi dence of the public in the judicialfairness of a judge and the justice delivery system would be shaken – Denialto 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 judgeconducting the trial, an honest, able and fair defence counsel and equallyhonest, able and fair public prosecutor – A fair trial necessarily includes fairand proper opportunity to the prosecutor to prove the guilt of the accusedand opportunity to the accused to prove his innocence. [Para 67]Criminal Law – Criminal justice system – Role of a judge indispensation of justice – Discussed. [Para 53, 54, 68 and 70]Committees – Malimath Committee on Judicial Reforms – Duty ofCourts to search for truth – Observations of the Committee – Discussed.[Para 69]