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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, ARVIND SRIVASTAVA, JJ.
The State of Bihar Ors - Petitioner
Versus
Prashant Kumar Mehta and Ors – Respondents
Death Reference No.2 of 2018 & Criminal Appeal (DB) No. 301, 493, 501 of 2018
Decided On : 05-04-2021
Indian Penal Code, 1860 – Sections 302/34, 376(2)(g) and 120-B – Indian Evidence Act, 1872 – Sections 25 and 26 – Murder, gang rape and conspiracy – Common intention – Death sentence – Circumstantial evidence – Circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of accused and such evidence should not only be consistent with guilt of accused but should be inconsistent with his innocence – Uncle of deceased is not a witness to actual killing or movement of accused persons either with deceased or in and around place of occurrence – FIR was lodged against unknown – There is no eyewitness to actual commission of offence – In a case of circumstantial evidence, motive plays an important role – In instant case, motive attributed for occurrence against accused would appear from confessional statements of accused persons and statement made by one PW under Sections 164 of Cr.P.C. – Such statements were inadmissible having regard to provisions of Sections 25 and 26 of Indian Evidence Act, 1872 – Even if a blood stained knife was recovered pursuant to disclosure statement, it would have made fact of recovery of knife only, as admissible under Section 27 of Indian Evidence Act – It will not make entire so-called disclosure statements of accused-appellants admissible – There is no evidence that fingerprint was taken from murder weapon or compared to fingerprint of accused appellants – There is no conclusive material to suggest that knife recovered was weapon used in murder or that accused-appellants were perpetrators of crime – Non-collection of blood of deceased and non-grouping of blood from samples has grossly damaged prosecution case and impeaches credibility of forensic evidence – Forensic evidence is scientific evidence and can provide proof to establish a person’s guilt or innocence – Entire bucket of evidence is either inadmissible or unbelievable and untrustworthy – Prosecution has miserably failed to prove each of links in chain of circumstances beyond reasonable doubt against accused-appellants – Impugned judgment of conviction and consequent order of sentence set aside. (Paras 28, 63, 68, 70, 71, 72, 74, 81, 84, 93, 94, 96, 97, 100 and 101)
Indian Evidence Act, 1872 – Section 27 – Disclosure statement – So much of such information which is received from a person accused of any offence, in custody of a police officer which has led to discovery of any fact, may be used against accused – Such information as given must relate distinctly to fact discovered. (Paras 80 and 82)
Criminal Procedure Code, 1973 – Section 164 – Statement of a witness made under Section 164 Cr.P.C. cannot be used as a substantive piece of evidence – Section 164 Cr.P.C. enables recording of statement of witnesses by Magistrate and confession from accused – Statement given by a witness under Section 164 Cr.P.C. is like a previous statement given during investigation under Section 161(3) of Cr.P.C. – It is not a substantive evidence because it is recorded from a witness during investigation and maker is not subjected to cross-examination – If the witness sticks to statement given by him to Magistrate under Section 164 Cr.P.C., no problem would arise but if the witness resiles from statement given by him under Section 164 Cr.P.C. in trial court, witness can be cross-examined by person who calls him and trial court may permit for putting any question on his earlier statement, which might be put in cross-examination by adverse party in terms of Section 154 of Indian Evidence Act – Nothing shall disentitle the person so permitted to rely on any part of evidence of such witness. (Paras 85 and 87)
JUDGMENT :
ASHWANI KUMAR SINGH, J.
1. These appellants have been held guilty in the Sessions Trial No. 965 of 2012 arising out of Barhara P.S. Case No. 99 of 2012 by the learned 1st Addl. Sessions Judge-cum- Special Judge, Purnea for the offences punishable under Sections 302 read with 34, 376(2)(g) and 120-B of the Indian Penal Code vide judgment dated 7.02.2018. The trial court, thus, by its order passed on 15.02.2018 awarded death sentence to the appellants for the offence under Section 302 read with 34 of the Indian Penal Code and rigorous imprisonment for life under two counts i.e. Sections 376(2)(g) and 120-B of the Indian Penal Code. Further, the trial court awarded sentence of a fine of Rs. 1 lac upon the appellants without specifying the particular offence for which it was imposed. The death sentence was subject to confirmation by the High Court.
2. The reference made by the trial court under Section 366 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’) has been registered as Death Reference No. 2 of 2018. The appellants have separately challenged their conviction and sentence imposed by the trial court by filing these criminal appeals before this Court. The appeals as well as the reference have been heard together.
3. The prosecution in the instant case was launched by registering Barhara P.S. Case No. 99 of 2012 dated 12.05.2012 under Sections 302 and 201 read with 34 of the Indian Penal Code against unknown accused persons. Though, the information of the incident was received by the police at 11:00 p.m. on 11.05.2012 but the first information report (F.I.R.) was registered at 10:00 a.m. on 12.05.2012. The FIR reveals that initially a station diary entry was made by the police bearing no. 341. The informant was Jagdish Mandal, who has deposed as PW-11 and Rameshwar Mandal (PW-2) has signed as a witness to the fardbeyan of the informant, which was written by one Deep Narayan Yadav, S.I. of Barhara P.S.
4. From the FIR, it would appear that the oral statement of the informant was recorded on 12.05.2012 at 5:10 a.m. at village Ahrighat Maldiha Kamat. The informant stated that his daughter aged about 13 years was a student of Class-V in the Middle School Lakshmipur Bhitta. She used to go to her school at 06:00 a.m. and return from the school at 11:30 a.m. whereater she used to attend the coaching classes near her house. After returning from coaching classes at about 2:00 p.m., she used to come to Maldiha Kamat of village Ahrighat and cook food. She used to return to her house at 6:00 p.m. The informant further stated that on 11.05.2012 at 06:00 a.m., she had gone to her school. He himself was at Maldiha Kamat on Ahrighat till 02:00 p.m. and after taking lunch, he had gone to Maldiha Bahiyar to graze his cattle. By that time, his daughter had not come to the Kamat. After grazing the cattle, he returned at 06:30 p.m. at his Kamat. At 08:00 p.m., his younger brother Rameshwar Mandal (PW-2) inquired from him about his daughter and also told that she had not reached her home. Thereafter, his brother Rameshwar Mandal told him that in the evening at 04:00 p.m., one Rukmani Devi (PW-4), wife of late Parmeshwar Mandal had told him that a person was sleeping in maize field of Satyanarayan Mandal. His brother sent his wife and two labourers to the field of Satyanarayan Mandal. The labourers and the wife of his brother came back and told that a dead body of a girl was lying in the maize field and they were unable to identify the girl. On receipt of such information, the informant, his two brothers and a nephew went to the maize field of Satyanarayan Mandal. He further stated that he identified that the dead body was of his daughter. Thereafter, all of them returned to the village and informed the Mukhiya, who in turn Mukhiya informed the police. All of them returned to the place of occurrence where police had already arrived. The informant expressed apprehension that some unknown persons had tried to ravish his daughter and ei
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