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IN THE HIGH COURT OF JUDICATURE AT PATNA
Ashwani Kumar Singh, Arvind Srivastava, JJ.
The State Of Bihar & Ors. - Appellant
Versus
Balwant Singh & Ors. - Respondent
Death Reference No. 4 of 2019 With Criminal Appeal (DD) No. 1181 of 2019 With Criminal Appeal (DD) No. 1184 of 2019
Decided On : 23-07-2021
Protection of Children from Sexual Offences Act, 2012 – Section 4 – Indian Penal Code, 1860 – Sections 366-A/34, 376-D/34 and 302/34 – Kidnapping, gang rape and murder of girl child – Death sentence – Delay caused in institution of FIR has not been properly explained – There is also no explanation as to why confessional statement of accused was recorded in police station if police had confessional statement available with them from before – Trial Court erroneously relied upon confession made by accused for arriving at a conclusion of guilt against appellants – Since no fact was actually discovered in consequence of information given by accused while he was in police custody after being taken on police remand from court, partial lifting of ban against confession and statement made to police as provided under Section 27 of Evidence Act was not at all available – In view of inordinate and unexplained delay in lodging FIR, casual manner in which investigation was carried out, investigating officer did not inspect place of occurrence where victim was allegedly gang raped and killed, inadmissibility of confessional statement of appellant, glaring inconsistencies in evidence of witnesses examined during trial and contradictions taken from investigating officer, prosecution has not been able to prove charge under Section 302 of IPC against appellants beyond shadow of reasonable doubt – Conviction and sentence set aside and Death Reference rejected. (Paras 45, 46, 55, 56, 60, 67, 77 to 81)
Criminal Law – FIR – It is essential that delay in lodging of FIR should be satisfactorily explained – There is no hard and fast rule that delay in lodging FIR would automatically render prosecution case doubtful – However, delay has effect of putting court on its guard to search if any explanation has been offered for delay, and if offered, whether it is satisfactory or not – FIR is an important document even though it is not a substantive piece of evidence – A prompt FIR prevents possibility of coloured version being put by informant – Mere delay in lodging FIR is not fatal to case of prosecution – Fact that report has been lodged belatedly is a relevant fact, which has to be kept in mind while appreciating evidence. (Paras 41 to 45 and 47)
Indian Evidence Act, 1872 – Sections 25 and 26 – Confessional statement – Evidentiary value – When an accused makes a confession to a police officer or an accused makes confession while he is in custody, such a confession cannot be proved in evidence against him unless it is made in immediate presence of a Magistrate. (Para 58)
Indian Evidence Act, 1872 – Section 27 – Disclosure statement – Court has to be cautious that no effort is made by prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract provisions of Section 27 of Evidence Act – Only so much information as relates distinctly to the fact thereby discovered is admissible – Rest of information has to be excluded. (Paras 53 to 66)
AIR 1973 SC 501; (2004) 1 SCC 421; (1998) 8 SCC 130; AIR 1947 PC 67; (2004) 10 SCC 657; (2007) 9 SCC 315 – Relied.
JUDGMENT
Ashwani Kumar Singh, J. - The appellants in these appeals have challenged the judgment of conviction dated 28.08.2019 and the order of sentence dated 06.09.2019 passed by the learned 1st Additional District & Sessions Judge-cum-Special Judge, POCSO Act, Bhojpur at Ara in POCSO Case No. 26 of 2018 arising out of Barahara P.S. Case No. 43 of 2018. By the aforesaid judgment, the appellants have been convicted for the offences punishable under Sections 366-A/34, 376-D/34, 302/34 of the Indian Penal Code (for short 'IPC') and Section 4 of the Protection of Children from Sexual Offences Act (for short 'POCSO Act'). Consequently, by the aforesaid order, the appellants have been sentenced to death for the offence punishable under Section 302/34 of the IPC, Rigorous Imprisonment for ten years with a fine of Rs.25,000/- for the offence punishable under Section 366-A of the IPC and in default of payment of fine to undergo further imprisonment for six months. The appellants have further been sentenced to undergo Rigorous Imprisonment for life and a fine of Rs. 50,000/- for the offence punishable under Section 376-D/34 of the IPC and in default of payment of fine to undergo further imprisonment for one year. So far as the offence punishable under Section 4 of the POCSO Act is concerned, the Trial Court has not passed any separate sentence. It has directed that all the sentences shall run concurrently.
2. After passing the impugned judgment and order, the Trial Court made a reference under Section 366 of the Code of Criminal Procedure (for short 'Cr.P.C') for confirmation of death sentence awarded to the appellants Balwant Singh and Anant Pandey, which has been registered as Death Reference No. 4 of 2019.
3. The appeals preferred by the appellants and the reference made by the Trial Court have been heard together and are being disposed of by a common order.
4. The sessions trial in which the impugned judgment and order were passed relates to the First Information Report (for short 'FIR') that had been registered at 8:30 AM on 05.02.2018 in Barahara Police Station under Section 154 of the Cr.P.C in respect of an incident that had occurred at village Semra, PS.- Barahara, District- Bhojpur situated at a distance of 8 kilometer east from the Police Station at 8:00 PM on 31.01.2018.
5. The FIR giving rise to the sessions trial was registered on the basis of the written report of one Sheo Raj Rai(P.W.4) submitted to the Officer-in-Charge of Barahara Police Station on 05.02.2018 at 8:30 AM. In his written report, the informant has stated that on 31.01.2018, at about 8:00 PM, his minor daughter, aged about 16 years, had gone to ease herself towards south of his house. Soon after, she went out of her house, she raised alarm and cried for help as three boys were trying to forcibly abduct her. Hearing his daughter's cry, he along with his nephew went there and saw that Chhotu Kumar Singh son of Rajendra Singh, Balwant Singh son of Bitan Singh, both residents of village- Old Bindgawan and one unknown boy dragged his daughter, forced her to sit on bike and tried to kidnap her. He further stated that the accused Chhotu Kumar Singh was riding the bike and the accused Balwant Singh was the pillion rider. They had sandwiched his daughter in the middle on the bike. The unknown boy rode on another bike. However, he himself and his nephew caught hold of the bike being rode by the kidnappers from behind as a result of which the rider and the pillion riders fell down. He himself also sustained injuries on his hand and legs. Taking advantage of the situation, Chhotu Kumar Singh and Balwant Singh along with his daughter rode on the bike being driven by the unknown miscreants and sped away. Thereafter, he went to the house of the accused Chhotu Kumar Singh andBalwant Singh and apprised their family members that they had kidnapped his daughter, but they said that they do not know anything about kidnapping of his daughter.
6. In his written report, the informant
(1) Delay in transmission of FIR to court, may not, per se, be fatal, without anything more – Where ocular evidence is found to be unreliable and unacceptable, long delay has to be taken note of by C....
It is well settled that a prosecutrix complaining of having been a victim of offence of rape is not an accomplice after crime.
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