Death Sentences Set Aside In Minor's Rape-Murder Case: P&H High Court Remands Matter After Finding Defects In Trial
In a significant ruling arising from the brutal rape and murder of a 12-year-old girl, the Punjab and Haryana High Court has set aside the death sentences awarded by the trial Court to both convicts and remanded the matter for retrial from summons stage.The Court found that the Investigating Officer had failed to forward the FSL report to the post-mortem doctors for their final opinion on...
In a significant ruling arising from the brutal rape and murder of a 12-year-old girl, the Punjab and Haryana High Court has set aside the death sentences awarded by the trial Court to both convicts and remanded the matter for retrial from summons stage.
The Court found that the Investigating Officer had failed to forward the FSL report to the post-mortem doctors for their final opinion on sexual assault, and that the trial Court had inadequately complied with the mandatory provisions of Section 313 CrPC by failing to put material incriminating circumstances to both the accused.
The Division bench said, "It was grossly negligent on the part of the Investigating Officer and the Supervisory Officers not to seek the opinion of the Doctor(s) by forwarding the FSL Report to the doctor(s). We cannot blame the doctors for this negligence; it lies squarely at the hands of the Investigator, SHO, and Supervisory Officers, including the then head of the district police, all of whom were irresponsible. This lapse has resulted in irregularity, and not any illegality, and this irregularity is curable. This negligence was exacerbated as during the trial, neither the Public Prosecutor nor the trial Judge cared to notice the omission, and they concluded the trial hurriedly."
While expressing its concern at the dual failure of the investigating agency and the trial, the bench held that the lapses, both by the Investigating Officer in not obtaining a supplementary medical opinion and by the trial Court in conducting a defective Section 313 examination were irregularities curable by remand, and that acquitting the accused on these grounds would cause far greater injustice to the victim and her family.
"A plain and simple reading of the statute refers to “circumstances appearing in evidence” and not the entire statement. Thus, the questions containing the most material facts could not have been read against them. However, if we give benefit of a curable irregularity to the accused by acquitting them, then it would cause more serious prejudice to the victim, without her being at any fault at all. Although it is legally permissible for any Appellate Court to put the remaining incriminating evidence to the accused, or to direct the trial Court to do so, that decision must not be taken in a mechanical manner but after analyzing the remaining incriminating evidence put to the accused and the likely prejudice which might be caused to the accused," the bench said.
It further added that, "Since the accused has a right to examine defence witnesses, and the evidence that comes in defence, if any, would also need to be analyzed and appreciated on appeal, the only option available to this Court to do justice to the accused and the victim and her family is to remit the case back to the trial Court to rectify the procedural mistakes for which neither the accused nor the victim were responsible."
In 2018, the victim, a girl aged approximately 12 years, residing with her maternal uncle, went missing after leaving home to dispose of garbage. Her de-clothed dead body was found the next morning behind the Balmiki Chaupal of the village. The post-mortem report indicated the cause of death as asphyxia due to strangulation, ante-mortem in nature.
The accused, aged 35, and co-accused aged 25, were neighbours of the victim's family. Prosecution witness Surender (PW-1), a home guard who was also a neighbour of both accused and a distant relative of the victim, deposed that the accused had approached him on January 14, 2018, confessed to the crime through extra-judicial confession, and requested him to produce them before the police.
The prosecution's case relied on extra-judicial confession, disclosure statements leading to recovery of articles including a tasla (iron pan) identified by the victim's maternal uncle and the victim's slippers, forensic evidence from the crime scene including a condom wrapper and a bloodstained mattress at the house of accused Pardeep, and the FSL report detecting human semen on vaginal swabs and vaginal slides.
The Sessions Court convicted both accused under Sections 302 read with 34, 376A, 363 r/w 34, 366 r/w 34, 376D, 201 r/w 34 IPC and Section 6 of the POCSO Act, and imposed death sentences on both under Sections 302 r/w 34 IPC, 376A IPC, and Section 6 of the POCSO Act, in addition to various terms of rigorous imprisonment under the other counts.
The State filed a Murder Reference for confirmation of the death sentences. Both convicts filed separate criminal appeals challenging their conviction and sentence.
Gross Negligence by Investigating Officer: FSL Report Never Forwarded to Doctors
The Court identified a critical lacuna in the investigation and the trial arising from the post-mortem report itself. The Board of Doctors had explicitly stated in the post-mortem report that their final opinion on any other associated cause of death and on the possibility of sexual assault would be given only after receipt of the FSL report.
The FSL report ultimately established the presence of human semen on the vaginal swabs and vaginal slides. However, the Court found no indication on record that the FSL report was ever forwarded to the doctors to obtain their supplementary and final opinion.
The Court observed:
"It was grossly negligent on the part of the Investigating Officer and the Supervisory Officers not to seek the opinion of the Doctor(s) by forwarding the FSL Report to the doctor(s). We cannot blame the doctors for this negligence; it lies squarely at the hands of the Investigator, SHO, and Supervisory Officers, including the then head of the district police, all of whom were irresponsible."
The Court further noted that neither the Public Prosecutor nor the trial Judge noticed this omission, and that the trial was hurriedly concluded without remedying it. It held that this Court is not a mere spectator in a heinous and brutal crime and that the defect is curable by directing the trial Court to summon the concerned doctors as Court witnesses and obtain their final opinion under Section 168 BSA, 2023 (corresponding to Section 165 IEA, 1872) read with Section 348 BNSS, 2023 (corresponding to Section 311 CrPC).
Fatally Defective Section 313 Examination
The Court separately identified two significant failures in the Section 313 CrPC examination of both accused.
Error in the Extra-Judicial Confession Question, as put to both accused, referred to an extra-judicial confession allegedly made before "Suresh Kumar", whereas the prosecution evidence (PW-1 Surender Kumar) names the witness as Surender Kumar. The Court noted that the question was wrongly framed.
Failure to Separately Put Key Recoveries to the Accused
The Court found that two critical incriminating circumstances, both central to the prosecution case were not put to the accused in a manner that afforded them a genuine opportunity to explain.
The recovery of the tasla at the instance of both accused, subsequently identified in Court by the victim's maternal uncle as the very tasla in which the victim had carried garbage on the evening she went missing, was not put to the accused in its full evidentiary significance. Only the disclosure statement and recovery were put, without the essential circumstance that PW-5 had identified MO-2 in Court as belonging to the victim.
Similarly, the victim's slippers, recovered pursuant to the disclosure statements of both accused from bushes near the pond, were identified by PW-5 as the victim's footwear, and this circumstance was not put in the requisite terms.
The Court held that unless both accused are given an opportunity to explain these circumstances, the evidence brought on record through these circumstances cannot be used against them. However, since the defects are irregularities and not illegalities, they are curable by remand.
Extensive Analysis of Section 313/351 BNSS
The Court conducted a detailed analysis of Section 313 CrPC (now Section 351 BNSS, 2023), tracing the evolution of the provision from its earlier avatar as Section 342 CrPC, 1898. The Court extracted and summarised the principles from a long line of Supreme Court decisions spanning over seven decades from Tara Singh v. The State, (1951) to Chandan Pasi v. State of Bihar, (2025).
As per the established jurisprudence, each material circumstance appearing in the evidence against the accused must be put to him specifically, distinctly and separately. It is not sufficient to put omnibus or general questions.
The questions must be fair and framed in a form that an ignorant or illiterate person can appreciate. The purpose is to establish a direct dialogue between the Court and the accused.
Circumstances not put to the accused in his Section 313 examination cannot be used against him and must be excluded from consideration.
Failure to put material circumstances is a serious irregularity. It vitiates the trial if it is shown to have caused prejudice to the accused.
Where the defect is curable and no irreversible prejudice is caused, the appellate Court has the power to either put the remaining circumstances to the accused itself, or remit the matter to the trial Court for a fresh Section 313 examination from that stage.
Whether to remand or decide on merits depends on the facts and circumstances of each case, including the passage of time, the period of incarceration already undergone, and the nature of the prejudice caused.
The Court also noted the Supreme Court's recent observations in Aejaz Ahmad Sheikh v. State of Uttar Pradesh, (2025), lamenting that criminal appeals frequently arrive before the Supreme Court with vital prosecution evidence never having been put to the accused under Section 313, by which time the defect can no longer be cured.
In the light of the above, the Court held that on an overall analysis, no prejudice shall be caused to the accused if the incriminating questions are put to them after a lapse of four to five years. Crucially, the Court balanced the accused's right to a fair trial against the victim's entitlement to justice, "If we give benefit of a curable irregularity to the accused by acquitting them, then it would cause more serious prejudice to the victim, without her being at any fault at all."
Accordingly, the Court set aside the judgment of conviction and the order of sentence awarded by the trial Court, and remanded the matter to the trial Court.
"The trial Court shall separately put all the incriminating evidence to both the accused by making small questions as per the facts and evidence under §351 BNSS [§313 CrPC, 1973], and after that, afford them an opportunity to lead defence evidence, if they want to do so, provided the same is done within a reasonable time. Thereafter, on hearing the parties, pass a judgment in accordance with the law without being influenced by the previous judgment as well as this one," it added.
The Murder Reference was held to have been rendered infructuous in view of the above directions and was disposed of accordingly.
For the State of Haryana: Mr. Yuvraj Shandilya, A.A.G.; Mr. Rahul Mohan, Addl. A.G.; Mr. Karan Sharma, D.A.G.; Mr. Shiva Khurmi, D.A.G.
For the Appellant-Convict Pardeep (CRA-D-173-2022): Mr. Rahul Rathore, Advocate
For the Appellant-Convict Sagar alias Kallu (CRA-D-469-2022): Ms. Meena Bansal, Advocate
Title: State of Haryana v. Pradeep and another