2021 Supreme(Pat) 728

IN THE HIGH COURT OF JUDICATURE AT PATNA
Ashwani Kumar Singh, Arvind Srivastava, JJ.
The State Of Bihar & Ors. - Appellant
Versus
Taslim (name Changed) & Ors. - Respondent
Death Reference No. 2 of 2019 With Criminal Appeal (DD) No. 753 of 2019
Decided On : 05-10-2021

Headnote:

Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 9, 21 and 94 – Protection of Children from Sexual Offences Act, 2012 – Sections 4, 6 and 10 – Indian Penal Code, 1860 – Sections 363, 376AB, 302 and 201 – Rape and murder of minor girl – Death sentence – At any stage of proceeding, if plea is taken that person who has committed an offence was a child on the date of commission of such offence, it is obligatory on part of Court to hold an inquiry in order to determine age after providing an opportunity to parties – Age determination is of paramount importance for ascertaining whether or not an accused comes within purview of Act of 2015 – It is a crucial aspect since benefits enshrined under Act of 2015 are available only to a person who has not completed age of 18 years – Act of 2015 provides for giving preference to documentary evidence from school and birth certificate given by a Corporation or a Municipal Authority or a Panchayat in age determination over medical examination – In absence of documentary evidence, Act of 2015 specifically provides that age shall be determined by bone Ossification Test or any other latest medical age determination test on orders of Board or Committee – On the basis of chemical, radiological and dental examination, age of appellant would be below 18 years on date of commission of offence – Reference made by Trial Court under Section 366 of Cr.P.C. for confirmation of death sentence awarded to him under Section 376 AB of IPC cannot be allowed in view of embargo created under Section 21 of Act of 2015 – Reference made by Trial Court for confirmation of death sentence awarded to appellant, rejected. (Paras 16, 17, 18, 22, 23, 24, 29, 36 and 37)

Protection of Children from Sexual Offences Act, 2012 – Sections 4, 6 and 10 – Indian Penal Code, 1860 – Sections 363, 376AB, 302 and 201 – Rape and murder of girl child – Death sentence – Circumstantial evidence – Major part of investigation was already done even before institution of FIR – Inspection of place of occurrence, recovery of dead body of victim, preparation of seizure list at place of occurrence, sending corpse of victim to hospital for post-mortem examination and post-mortem examination were done prior to institution of FIR – FIR is an important document – Prompt FIR prevents possibility of coloured version being put by informant – Explanation given by IO for not registering FIR as mob was agitated does not seem to be plausible – There is utter confusion as to whether appellant was seen fleeing away from place of occurrence or he was present at place of occurrence and assisting search operation – Two seizure list witnesses examined during trial did not utter a word regarding seizures made in their presence – FSL reports are also of no use from point of view of providing any objective support to prosecution case – There is no evidence that semen found on half pant of appellant was matched with semen found on clothes of victim or on any part of her body – Circumstances emanating from oral and documentary evidences adduced during trial do not find unerringly towards guilt of appellant – Prosecution has failed to prove its case beyond reasonable doubt – Impugned judgment of conviction and consequent order of sentence set aside. (Paras 70, 71, 76, 85, 86, 87, 90, 91 and 92)

Criminal Law – Circumstantial evidence – Absence of any eye witness to homicide cannot come in way of conviction of accused persons and even a sentence of death may be passed in such cases where crime has to be inferred from surroundings and relevant circumstances – To sustain a conviction on circumstantial evidence, factual circumstances should be so established that only inference the said circumstances allow must be that of guilt of accused, incompatible with any other hypothesis – Circumstances on record should form a complete and consistent chain of events, which rule out every other hypothesis except guilt of accused. (Paras 78 and 80)

Criminal Procedure Code, 1973 – Sections 357 and 357-A – Bihar Victim Compensation Scheme, 2014 – Compensation to victim of crime – Compensation to victim can be awarded only when substantive sentence is imposed of which fine forms part and not in case of acquittal – There is also no limit to amount that may be awarded and is left entirely to discretion of Court to decide in each case depending on its facts and circumstances – Compensation can be awarded to victim only if accused is identified, prosecuted and convicted – Compensation to victim would not be available under this provision if prosecution case is not proved beyond reasonable doubt or if case is found true during investigation but police failed to get any clue of perpetrators of crime – In such circumstances, Court cannot apply Section 357 of Cr.P.C. to order compensation to victim – However, responsibility has been imposed on States to create and maintain a fund for the purpose of compensating victims of crime in case where compensation made by accused is inadequate or no such compensation is payable on account of acquittal or discharge of accused or offender not being traced or identified – Such payments are to be made by State or District Legal Services Authority, as the case may be, on specific recommendation of Court in cases falling under Section 357-A (2) and (3) – However, recommendation of Court is not required under Section 357-A (4), (5) or (6) of Cr.P.C. – District Legal Services Authority directed to pay Rs.10,00,000/- to guardian of deceased victim by way of compensation from fund under 2014 Scheme and its Amendments within 30 days from date of receipt of order. (Paras 97, 103, 116 and 117)

Protection of Children from Sexual Offences Act, 2012 – Sections 33(8) and 45 – Protection of Children from Sexual Offences Rules, 2020 – Rule 9 – Compensation to victim – Acquittal of accused of rape and murder of girl child – Plight of victim cannot be overlooked – Guardian of deceased victim has right to get justice to remedy harm suffered as a result of crime – In given facts and circumstances of case, awarding compensation is also necessary to reassure guardian of deceased victim that she is not forgotten in criminal justice system. (Para 115)