2021 Supreme(Pat) 699

IN THE HIGH COURT OF JUDICATURE AT PATNA
Ashwani Kumar Singh, Arvind Srivastava, JJ.
The State Of Bihar & Ors. - Appellant
Versus
Durgawati Devi & Ors. - Respondent
Death Reference No. 1 of 2020 With Criminal Appeal (DD) No. 136 of 2021
Decided On : 10-09-2021

Headnote:

Indian Penal Code, 1860 – Sections 302, 201 and 120B – Murder of child, disappearance of evidence and conspiracy – Death sentence – Circumstantial evidence – There is no eye witness to actual murder of four years old victim at hands of appellants – Fardbeyan given by father of victim incorporates allegation of murder being committed in pursuance of a conspiracy hatched by two appellants and also that their house was later washed with water, but same does not contain any whisper of motive – FIR is not expected to be an encyclopedia of fact, but what is worthy is that theory of sacrificial killing was developed later by prosecution witnesses in court – SHO, who prepared inquest report of deceased, has not been examined by prosecution – Prosecution has not explained his non-examination – It is a mystery as per whose information police reached at place of occurrence – In inquest report, neither name of accused nor name of informant nor name of any other prosecution witness examined during trial nor details about occurrence has been mentioned – When SHO and Investigating Officer had reached place of occurrence at the same time on information received at police station, there is no reason as to why fardbeyan was recorded more than two hours after preparation of inquest report especially, when evidence on record suggests that a large number of villagers had assembled at place of occurrence – Non-examination of witnesses has certainly caused prejudice to defence – Conduct of prosecution in withholding important witnesses from court would lead to an adverse inference that if produced, evidence would operate against them – Fardbeyan on which FIR was registered is not the first version of occurrence – First version of occurrence has been intentionally suppressed – Present FIR has been manufactured and has been made after due deliberation and consultation, after second and third seizure lists were prepared – Investigating Officer admitted in cross-examination that he did not send seizure lists to court during investigation – Investigating Officer conducted alleged seizure of materials from house of appellants in contravention of Clause (6) of Section 100 of Cr.P.C. – Informant's testimony in court concerning motive is an improvement over his statement made under Section 161(3) of Cr.P.C. – Evidence of Investigating Officer is indicative of a belated development and attribution of motive by prosecution witnesses to appellants for first time in court probably to strengthen prosecution case in an attempt to supply a link in chain of circumstantial evidence – Prosecution has failed to establish motive ascribed to appellants – Discovery of blood on walls of appellant's house has not been corroborated by Investigating Officer – FSL report was not supplied to appellants at any stage – No reliance can be placed on FSL report, which was taken into evidence by Trial Court without being tendered by any witness and, that too, at a belated stage after closure of prosecution case – Evidence adduced by prosecution to prove guilt of appellants is beset with contradictions, embellishments and insufficiencies to form a complete link of damaging circumstances, which could unequivocally be demonstrative of guilt of appellants – Appellants acquitted of charges levelled against them. (Paras 46, 48, 51, 52, 55, 57, 58, 71, 72, 73, 81, 82, 99, 101, 102, 103, 104 and 105)

Code of Criminal Procedure, 1973 – Section 174 – Inquest report – Preparation of inquest is a part of investigation within meaning of Cr.P.C. – Inquest report cannot be termed to be a piece of substantive evidence – Object of inquest report is merely to ascertain whether a person has died under unnatural circumstances or an unnatural death and, if so, what is cause of death – Any discrepancy occurring therein, cannot be termed to be fatal – It can be used to contradict witness to inquest examined during trial. (Para 49 and 51)

Criminal Law – Circumstantial evidence – To sustain conviction on circumstantial evidence, factual circumstances should be so established that only inference to 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 – 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. (Paras 59 and 60)

Code of Criminal Procedure, 1973 – Section 293 – Expert evidence – Evidentiary value – Generally, opinion of an expert though relevant, requires expert to be examined as a witness in court otherwise his report cannot be admitted in evidence – FSL report and its contents would be admissible in evidence even without examining author and calling for its formal proof – However, report falling under ambit of Section 293 of Cr.P.C. need to be tendered in evidence by some witness so that same is exhibited and connected with case in hand – If it is not tendered in evidence by any witness, same cannot be used in evidence – In appropriate cases, there may be an occasion to allow tendering report of an expert at a belated stage, if when tendering of report of expert or examining report under Section 293 Cr.P.C., at any stage, after closure of prosecution of evidence is allowed, duty is cast upon court to ensure that no prejudice is caused to accused – While allowing expert report to be taken into evidence, it must be ensured that a copy of report is supplied to accused well in advance and he is allowed to cross-examine relevant witness. (Paras 87, 97 and 99)

277 (2021) BLT 333; (1984) 4 SCC 116; AIR 1952 SC 343; AIR 1954 SC 621; 1989 Supp (2) SCC 706 – Relied. (2011) 525 DRL 417 – Assented.