2020 Supreme(Pat) 380

IN THE HIGH COURT OF JUDICATURE AT PATNA
Sanjay Karol, S. Kumar, JJ.
State Of Bihar - Appellant
Versus
Niranjan @ Alakh Deo Kumar, Son Of Shiv Narayan Pd Sah - Respondent
Death Reference No. 1 of 2018; Criminal Appeal No. 491 of 2018
Decided On : 11-11-2020

Headnote:

Indian Penal Code, 1860 – Section 302 – Murder of woman and her two children – Death sentence – Delay in registration of FIR – There is neither any witness to incident nor is there any scientific evidence, even remotely linking, much less establishing, involvement of accused in crime – Version of witnesses on motive not inspiring confidence – No independent witness from locality or society has been examined to corroborate the factum – Theory of motive appears to be an afterthought – It is nobody's case that accused are an influential person or had threatened or won over, or intimidated witnesses, or none came forward to cooperate, or were siding with accused, or refused to depose – Name of person who gave information to Police at first instance was never brought on record – ASP who received information and accompanied him to place of occurrence and assisted with investigation on the spot neither gave a statement nor was he examined as a witness, creating a lacuna of evidence of a crucial spot witness – Glaring lapse in procedure by Investigating Officer was non-filing of FIR at the time of obtaining information of cognizable offence and carrying out investigation in interim and only registering FIR based on information given 12 hours after crime and investigation into crime had taken place – No evidence was taken by FSL team that could provide any conclusive evidence as to identity of accused – Although a confessional statement made to police is inadmissible as evidence, it may still be noteworthy to observe that even this statement does not make out any role of accused in committing murder – Trial Judge totally failed to correctly appreciate factual matrix and testimonies of witnesses; also appreciate and correctly apply the law – He misconstrued and misapplied them – Trial Court has applied principle of presumption as per Section 114 of Evidence Act, to fill in gaps in story laid forth by prosecution that a woman would not allow a stranger to enter her house – Death Reference answered in negative and appellant acquitted. (Paras 27, 56, 57, 82, 84, 87, 124, 128, 139, 140, 165, 198 and 199)

Criminal Law – Appreciation of evidence – Credibility of a witness ought to be assessed by Court by reading statement as a whole, scrutinizing it against discrepancies and inconsistencies that go against general tenor of evidence given by witness – Trivial and minor contradictions in witness statements are bound to happen and would generally not affect credibility of a witness – Generally, veracity of testimony of a witness is tested on credibility of witness and truthfulness of their statement – Truthfulness of statement can be determined in cross-examination by putting to witness, their own previous statements or testimonies of other witnesses – Standard rule of appreciation of and weight to be given to witness testimonies is that the statements of witness must inspire confidence of Court – Contradictions having a material dimension that go to root of the matter would discredit evidence/testimony. (Paras 31, 32 and 36)

Indian Evidence Act, 1872 – Section 50 – Opinion with respect to human relationship – Opinion of Court can be based on express conduct or on the basis of any person who as a member of family or otherwise has special knowledge on subject – Court can rely on statement of witnesses who are in a special position to know of factum of relationship to form an opinion on relation between two parties – Even on this count testimonies of witnesses are uninspiring in confidence since there is nothing else on record to corroborate this factum. (Paras 152 and 153)

Code of Criminal Procedure, 1973 – Section 354(3) – Death sentence – Rarest of rare cases – Court must take into account where there is a possibility of rehabilitation of offender and not determine punishment on the ground of proportionality alone – Court must not be an oracle of public opinion and recognize limits to judicial power – Judicial approach on death penalty ought to be cautious, circumspect and careful more so because decision is permanent and irreversible – Only in gravest of cases of extreme culpability, sentence of death must be awarded, life imprisonment being rule and death penalty exception – As listing all possible aggravating and mitigating circumstances is not possible, judicial discretion on a case-to-case basis depending on an analysis of facts and circumstances of each case is the best safeguard – Doctrine of proportionality of gravity of offence and punishment becomes relevant – Weightage must be given to motive, manner and anti-social or abhorrent nature, magnitude of crime, personality of victim, Court must examine manner in which crime is committed, offender's mental condition at relevant time, motive of offence, brutality with which crime was committed and whom it was committed on. (Paras 192, 195 and 197)

(1963) 3 SCR 239; AIR 1960 SC 29; (1976) 1 SCC 621; (1984) 4 SCC 116; AIR 1952 SC 343; (1973) 2 SCC 793; (2019) 9 SCC 738; 1959 SCR 195; 1959 Supp (2) SCR 875; (1994) 3 SCC 569; (1985) 1 SCC 505; (1999) 9 SCC 525; (2010) 12 SCC 324; (2015) 3 SCC 138; (2016) 10 SCC 537; 1993 Supp (3) SCC 91; (2017) 4 SCC 140; (2016) 1 SCC 550; (1976) 1 SCC 389; (2010) 6 SCC 1; (2014) 2 SCC 455; (2020) 4 SCC 451; (1976) 1 SCC 727; (1991) 3 SCC 627; (2006) 2 SCC 450; (2013) 13 SCC 1; (2016) 3 SCC 108; (2015) 9 SCC 588; (2014) 2 SCC 1; (1999) 6 SCC 172; (2016) 8 SCC 509; (2018) 17 SCC 627; (2009) 6 SCC 767; (2019) 15 SCC 470; 1992 Supp (1) SCC 222; (2010) 12 SCC 254; (2018) 7 SCC 582; (2019) 15 SCC 470; AIR 1965 SC 328; (1992) 3 SCC 700; (2000) 8 SCC 740; (2003) 2 SCC 401; (2004) 7 SCC 502; (2013) 5 SCC 722; (2015) 1 SCC 496; (2020) SCC OnLine SC 779; 2020 SCC Online SC605; (2003) 12 SCC 528; (2010) 10 SCC 439; (2017) 11 SCC 195; (1981) 3 SCC 191; (1957) 2 All ER 155; (1997) 6 SCC 1621; (2013) 15 SCC 578; (2019) 13 SCC 653; (2014) 5 SCC 509; (1961) 1 SCR 933; (2019) 10 SCC 623; (2006) 12 SCC 254; (2013) 8 SCC 60; (2019) 10 SCC 437; (2000) 8 SCC 382; (2012) 10 SCC 373; (2008) 5 SCC 697; (2019) 10 SCC 211; (2005) 4 SCC 370; (2017) 6 SCC 263; (1979) 2 SCC 143; (2008) 16 SCC 417; (2011) 11 SCC 653; (2012) 7 SCC 171; (1980) 3 SCC 110; (2013) 4 SCC 422; (2019) 8 SCC 50; (2018) 11 SCC 129; (2020) 3 SCC 321; (1983) 3 SCC 470 – Relied.

(2017) 3 PLJR (SC) 248; (2017) 11 SCC 195 – Referred.