2020 Supreme(Pat) 465

IN THE HIGH COURT OF JUDICATURE AT PATNA
SANJAY KAROL, S. KUMAR, JJ.
The State of Bihar - Petitioner
Versus
Ajit Kumar, S/o. Gautam Prasad - Respondent
Death Reference No. 3 of 2018 with Criminal Appeal (DB) No. 888 of 2018
Decided On : 20-10-2020

Headnote:

Protection of Children from Sexual Offences Act, 2012 – Section 6(g) – Indian Penal Code, 1860 – Sections 363, 366A, 120B, 302 and 376(D) – Gang rape and murder of minor girl – Death sentence – Trial judge has in a perfunctory manner referred to evidence and not furnished any cogent, much less legally sustainable reasons in arriving at conclusions, holding accused guilty of each one of charged offences – In criminal cases, burden of proof on prosecution is one of proof beyond reasonable doubt as opposed to a preponderance of possibilities – There is no documentary or other tangible evidence, indicating burn injuries to have been caused by pouring kerosene oil – It only belies prosecution version of burn injuries caused as a result of inflammable material such as kerosene – Contradictions are glaring, shocking foundation and genesis of the prosecution case – Testimony of all three members, on the issue of kidnapping, sexual assault and murder, based on hearsay, is wholly uninspiring in evidence, apart from being self-contradictory – None of these witnesses alleges intimidation, threat or apprehension of any nature from accused – No medical examination was conducted – Neither accused was confronted nor any such fact, confessional statement, put to any one of witnesses – Veracity of such statement, more so in absence of any independent person is extremely doubtful, if not a concoction to support prosecution case – Trial court has committed a grave error in not putting entire set of circumstances to accused in statement under Section 313 Cr.P.C. – Prosecution has not been able to establish any one of charges against accused – Judgment of conviction and order of sentence set aside. (Paras 12, 35, 39, 58, 67, 101, 102 and 124)

Criminal Law – Circumstantial Evidence – Where there is no direct or ocular evidence of crime, guilt of accused can be proved by circumstantial evidence but circumstances from which conclusion of guilt must be drawn must be fully proved and be conclusive in nature to fully connect accused with crime – All links in chain of circumstances must be proved beyond reasonable doubt, proved circumstances must be consistent only with hypothesis of guilt of accused alone and non-else, as also inconsistent with his innocence – While appreciating circumstantial evidence, Court must adopt a very cautious approach and great caution must be taken to evaluate circumstantial evidence. (Paras 31 and 34)

Indian Evidence Act, 1872 – Section 60 – Direct evidence rule – Hearsay evidence is not admissible as proof of a fact, except for in certain accepted exceptions – Oral evidence is generally admissible if person giving evidence has personal knowledge of fact deposed by him – Person giving evidence on a fact must be one who has seen/heard/perceived the fact – Unless author of statement is examined and is subjected to cross examination, statement would remain in realm of hearsay and not be admissible. (Paras 44, 45 and 47)

Criminal Procedure Code, 1973 – Sections 173(8) and 386(b)(i) – Further investigation and retrial – Where quality of investigation and trial trivialized cause of justice, Courts could take further remedial intervention by way of further investigation, reinvestigation, additional evidence, retrial etc., for furtherance of statutory objectives justice dispensing as contemplated under law – A de novo trial or retrial of the accused must only be ordered by appellate court in exceptional and rare cases and only when such course becomes indispensable to avert failure of justice. (Para 77)

Indian Evidence Act, 1872 – Sections 25, 26 and 27 – Constitution of India – Article 20(3) – No accused of an offence shall be compelled into being a witness against himself – Confession made by any person to a police officer is inadmissible as evidence, except for singular cases where such statement results in a consequent discovery of fact – Confessional statements made to police by accused cannot be a basis to prove guilt of accused – Section 27 only becomes applicable when confession statement leads to discovery of a new fact. (Paras 90, 91 and 96)

Indian Evidence Act, 1872 – Sections 110-114 – Presumption of certain facts by Courts in absence of direct evidence of an offence has been an accepted practice – However certain principles guide such exercise of such presumption – Presumption must be an inference of fact drawn from another proved fact that is likely to flow as a common course of natural events, human conduct and public/private business vis-à-vis facts – Courts in drawing such presumption must look at facts from an angle of common sense and common experience of man. (Para 98)

Criminal Procedure Code, 1973 – Section 313 – Accused in not per se entitled for acquittal on ground of non-compliance with mandatory provision of Section 313 – Accused must show that some was cause or likely to be caused to him from error or omission in compliance with provisions of Code – Non-compliance with Section 313 would vitiate trial if material prejudice were caused to accused – Where important incriminating circumstances were not put to accused during examination under Section 313, prosecution cannot not place reliance on the piece of evidence. (Para 110)