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2021 Supreme(Pat) 705
IN THE HIGH COURT OF JUDICATURE AT PATNA
Ashwani Kumar Singh, Anil Kumar Sinha, JJ.
Soni Devi - Appellant
Versus
The State Of Bihar - Respondent
Criminal Appeal (DD) No. 1478 of 2018
Decided On : 15-09-2021
Mr. Anirudh Kumar Sinha, Advocate, Mr. Santosh Kumar, Advocate, for the Appellant; Mr. Ajay Mishra, APP, for the Respondent.
Headnote:
Criminal Law – Circumstantial evidence – Absence of any eye witness to homicide cannot come in way of conviction of accused where crime has to be inferred from surrounding and relevant circumstances – However, to sustain conviction on circumstantial evidence, factual circumstances should be so established that only inference to said circumstances 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 18 and 19)
Indian Penal Code, 1860 – Sections 302 and 201 – Indian Evidence Act, 1872 – Section 24 – Murder and disappearance of evidence – Life sentence – Circumstantial evidence – There is no witness to actual murder of child at hands of appellant – Save and except recovery of gendra, disclosure made by son of appellant and evidence of sniffer dog, there is no other material to connect appellant with killing of son of informant – Gendra was never produced before Trial Court – Gendra was never put for identification before Magistrate – That apart, gendra is a common item which is found in every house – There is no cogent evidence to suggest that gendra in which body of deceased was rolled belonged to appellant – Statement made by an accused before police which amounts to confession is barred under Section 25 of Indian Evidence Act – An extra-judicial confession by itself is a very weak type of evidence – It is a rule of caution that Court would generally look for an independent reliable corroboration before placing reliance upon an extra-judicial confession – Confession is hit by Section 24 of Indian Evidence Act – Exculpatory confession is not admissible in evidence – Police may have used services of a sniffer dog for investigation, but merely because dog entered house of appellant in her absence, same cannot be treated to be evidence sufficient enough to establish guilt of appellant – Appellant cannot be convicted only on the basis of evidence gathered by police sniffer dog – Moreover, circumstance that sniffer dog entered house of appellant after smelling place where body of deceased was thrown was not brought to notice of appellant while examining her by Trial Court under Section 313 of Cr.P.C. – Said circumstance could not have been taken into consideration by Trial Court for concluding guilt of appellant – Prosecution has miserably failed to prove each of links in chain of circumstances beyond reasonable doubts against appellant – Appellant acquitted of charges levelled against her. (Paras 34, 35, 44, 45, 49, 50 and 51)
Criminal Procedure Code, 1973 – Section 313 – Examination of accused – Object of Section 313 of Cr.P.C. is to enable accused to explain circumstances against him/her in evidence personally except where statute provides otherwise – Section 313 of Cr.P.C. provides accused a fair chance to explain his/her stand about circumstances in evidence which have been collected against him/her and has come on record during a trial – If questions on incriminating circumstances have been ignored by Trial Court, then it is an illegality and amounts to abuse of process of Court – Questioning of accused under Section 313 of Cr.P.C. should not be treated as empty formality as it is an important facet of trial. (Paras 46 to 48)
JUDGMENT
Ashwani Kumar Singh, J. - Heard Mr. Anirudh Kumar Sinha, learned counsel for the appellant and Mr. Ajay Mishra, learned Additional Public Prosecutor for the State.
2. This appeal is directed against the judgment of conviction dated 1st December, 2018 and the consequent order of sentence dated 5th December, 2018 passed by the learned Presiding Officer, Fast Track Court-I, Nalanda at Bihar Sharif in Sessions Trial Case No. 291 of 2012/ C.N.R. No. 0070 of 2012 arising out of Sohsarai PS. Case No. 134 of 2011 whereby and whereunder the sole appellant has been convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code (for short 'IPC') and sentenced to undergo rigorous imprisonment for life besides a fine of Rs.25,000/- for the offence under Section 302 of the IPC and in default of payment of fine to further undergo rigorous imprisonment for three years and rigorous imprisonment for five years and a fine of Rs.5,000/- for the offence under Section 201 of the IPC and in default of payment of fine to further under rigorous imprisonment for six months. However, both the sentences were directed to run concurrently.
3. The First Information Report (for short 'FIR') of Sohsarai PS. Case No. 134 of 2011 is based on the fardbeyan of one Ram Pravesh Kumar (P.W.3), which was recorded by one Shree Kant Sharma (P.W.9), a Sub-Inspector of Police of Sohsarai Police Station on 13th December, 2011 at 6:55 PM in the Mohalla- Habibpura.
4. In his fardbey an, the informant stated that on 13th December, 2011 at about 2:45 PM, while he was going to his field, his two years old son, namely, Prashant Kumar started coming behind him. When he reached the Trimuhani of his lane and saw his son Prashant Kumar following him, he persuaded him to return to his home and went to his field. His wife came to the field about fifteen minutes after he had reached his field. She inquired about Prashant Kumar and said that he had not returned to his home. On hearing this, he stopped working in his field and began to inquire about his son's whereabouts near his house and in an adjacent locality. He also arranged for an announcement on the loudspeaker about his missing son in the locality. At about 6:30 PM, when he reached near Mogalkuwan Masjid, he came to know that a dead body of a child is thrown at Habibpura Mohalla besides the shop of one Laddu Sao. On coming to know about the recovery of a dead body of a child, he immediately reached that place and found that a large number of people had assembled there. He also found that the police party had already arrived there. When he moved ahead, he saw that a child rolled in a gendra (a locally made mattress of textile in Bihar) and a plastic bag beside him was lying there. On seeing the boy, he identified it to be his son. When he went closer, he found that his son was dead. He started crying. He claimed that some unknown miscreant had killed his son and thrown his body to conceal the evidence.
5. Based on the said fardbeyan, Sohsarai PS. Case No. 134 of 2011 dated 13th December, 2011 was registered under Sections 302 and 201/34 of the IPC against an unknown accused person by the aforesaid Shree Kant Sharma and he took up the investigation of the case himself. He inspected the place of occurrence, recorded the statements of witnesses under Section 161(3) of the Code of Criminal Procedure (for short 'CrPC'), prepared the inquest report and sent the body of the deceased Prashant Kumar to the hospital for postmortem examination.
6. On completion of the investigation, the police submitted its report under Section 173(2) of the CrPC before the court of Chief Judicial Magistrate, Nalanda on 2nd March, 2012.
7. After going through the police report and the materials collected during the investigation, the learned Chief Judicial Magistrate, Nalanda took cognizance of the offences on 2nd March, 2012 itself and summoned the appellant to face trial.
8. The learned Chief Judicial Magistrate, Nalanda, afte
