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IN THE HIGH COURT OF JUDICATURE AT PATNA
A.M. BADAR, SUNIL KUMAR PANWAR, JJ.
Ravi Kumar Singh S/o. Bulbul Singh - Appellant
Versus
The State of Bihar - Respondent
Criminal Appeal (DB) No. 198 of 2014
Decided On : 24-02-2022
Indian Penal Code, 1860 – Sections 376 and 302 – Rape and murder – Life sentence – Circumstantial evidence – There is nothing in evidence of hostile witnesses to incriminate appellant/accused in subject crime – There is not a single witness other than official witnesses to establish circumstances which according to prosecution established guilt of appellant/accused in subject crime – Though police witnesses were not examined before court, trial court has virtually translated their police statement recorded under Section 161 of Code of Criminal Procedure as substantive evidence before court and recorded conviction and resultantly sentenced appellant for grave offences of murder and rape – Totally illegal approach was adopted by trial court in doing so – Recovery of such clothes of routine use in no way, can constitute an incriminating evidence against appellant/accused – There is no forensic report on record which can suggest that these articles were found to be used in commission of subject crime – Prosecution has not explained as to why forensic evidence is not forthcoming – No legal evidence on record to convict appellant/accused in subject crime – Impugned Judgment and order quashed and set aside. (Paras 7, 13, 15, 18 to 22)
Code of Criminal Procedure, 1973 – Sections 161 and 162 – Indian Evidence Act, 1872 – Sections 27 and 145 – Statement under Section 161 of Code of Criminal Procedure of a witness recorded by Police is not and cannot be an evidence before court – Use of such police statement is very limited – Such police statement can be used for the purpose of contradicting the witness who has made it and it cannot be used for the purpose of corroboration – Even if contradiction from former statement of witness is proved through Investigating Officer, that duly proved contradiction does not translate such contradiction into substantive evidence before court – Such duly proved contradiction at the most can be used for impeaching credit of witnesses examined by police by throwing doubt on his veracity – Even duly proved contradiction surfacing on record can at the most make substantive evidence of such witness doubtful – Statement recorded under Section 161 of Code of Criminal Procedure is inadmissible in evidence and cannot be relied upon or used to convict accused – Statement recorded under Section 161 of Code of Criminal Procedure can be used only to prove contradictions and/or omissions. (Para 14)
Criminal Appeal No.374 of 2020 Parvat Singh and others Vs. State of Madhya Pradesh decided on 2nd March, 2020; 2002 AIR (SC) 733 – Relied.
JUDGMENT :
A.M. Badar, J.
The appellant who happens to be one of the accused, separately charge-sheeted in Crime No.132 of 2012 of Muffasil Police Station, Munger in Sub-Division Sadar is challenging the Judgment and Order dated 19.11.2013 and 20.11.2013 passed by the learned Additional Sessions Judge-I, Munger, in Sessions Case No.720 of 2012 thereby convicting him of the offences punishable under Sections 376 and 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life on both counts with imposition of fine of Rs.5000/-on each count. For the sake of convenience, the appellant shall be referred to in his original capacity- the accused.
2. Facts leading to the prosecution of the instant appeal can be summarized thus:
(a). The spot of the incident is stated to be a room located in Sitakund Secondary School situated at the Sheetalpur Square. P.W.6 Bhai Bharat Kumar, Police Station Officer of Muffasil Police Station, Munger, had received information regarding death of a woman at the said School on 04.07.2012. At about 07.15 P.M. of 04.07.2012, P.W.6 Bhai Bharat Kumar reached the spot of the incident and noticed that dead body of a woman in naked condition was lying in the room of that school. Blood was found spilled near head of the dead body. At some distance, one petticoat was lying. A white colour bag containing clothes was also lying nearby the dead body. On the spot of the incident, there were signs of dragging the dead body. By concluding that the said unknown woman was subjected to rape prior to her murder, P.W.6 Bhai Bharat Kumar, Station House Officer, lodged the F.I.R. with the Muffasil Police Station, Munger on 04.07.2012 itself which has resulted in the registration of Crime No.132 of 2012 for the offences punishable under Sections 302 and 376 of the Indian Penal Code against the unknown accused persons. The dead body was then dispatched for the autopsy to the Sadar Hospital. P.W.8 Dr. Madhumita Mandal and P.W.9 Dr. Rakesh Kumar Sinha conducted the post-mortem examination on dead body, the report of which was collected during the course of investigation.
(b). Investigation of the subject crime was entrusted to P.W.7 Vinay Shanker Prasad. During the course of investigation, he recorded the statements of several witnesses. In the investigation, it was transpired that the unknown lady who came to be murdered was staying in the said Sitakund Secondary School since last few days. She was provided with the food by the cook of the school and she was sleeping in the school itself. According to the prosecution case, appellant/ accused Ravi Kumar Singh and other accused persons namely Mukesh, Bhaskar and Shishu Prasad after committing rape on her committed her murder on 04.07.2012.
(c). Though there is not a single witness to the incident, the Investigator has recorded the statements of the witnesses such as Akhilesh Kumar, Abhijeet Kumar, Wakil Singh (P.W.4) and others from which it was transpired that the appellant/accused along with other accused persons were having snacks and drinking liquor in the play ground of the said school from the afternoon and then they had committed rape on the said unknown lady and subsequently murdered her.
(d). After arrest of the appellant/accused, on the basis of his confessional statement, full pant of co-accused Mukesh, his own T-shirt and shawl of the deceased came to be recovered. Then the seized articles including the petticoat of the deceased came to be dispatched for forensic examination.
(e). On completion of investigation, the charge-sheet came to be submitted against the present appellant/accused separately.
3. In support of case of the prosecution, the prosecution has examined the following witnesses to establish the circumstances that soon before and after the incident, the appellant/accused along with the co-accused were found in the vicinity of that school eating snacks as well as drinking liquor. Soon after the incident, they were found to be in frightened conditio
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