2023 Supreme(Pat) 334

IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH and RAJESH KUMAR VERMA, JJ.
Criminal Appeal (DB) No.338 of 2021
(26.6.2023)
Jai Kishor Sah (in 338) ... Appellant
State of Bihar (in 4) ... Petitioner
vs.
State of Bihar (in 338)
Jai Kishor Sah (in 4) ... Respondents

Headnote:

Protection of Children from Sexual Offences Act, 2012 – Sections 5/6 and 9/10 read with Section 29 – Indian Penal Code, 1860 – Sections 376-AB and 302 read with Sections 201/34 – Rape and murder of girl child – Disappearance of evidence – Common intention – Death sentence – Based on confessional statement of appellant dead body of victim was recovered from appellant's house – Prosecution case fully supported by medical evidence – No evidence adduced on behalf of defence – Appellant did not explain circumstance in which dead body of victim was recovered from his house – Prosecution's witnesses are consistent in their deposition that victim used to go to appellant's house everyday for babysitting – Recovery of victim's dead body from house of appellant, based on revelation made by appellant, is a strong circumstance pointing towards guilt of appellant – Prosecution was able to make out a case of penetrative sexual assault and murder of victim at the time of framing of charge with aid of post-mortem report – Section 29 of POCSO Act comes into operation with full force – Prosecution was able to make out of case of commission of offence punishable under section 6 of POCSO Act – Circumstances proved at trial by way of evidence point towards one and only hypothesis that victim was killed by appellant after having sexually assaulted her – No reason to interfere with conviction recorded by trial court in its impugned judgment. (Paras 7, 9, 10, 11, 19, 24, 27, 28 and 29)

Protection of Children from Sexual Offences Act, 2012 – Sections 5/6 and 9/10 read with Section 29 – Indian Penal Code, 1860 – Sections 376-AB and 302 read with Sections 201/34 – Criminal Procedure Code, 1973 – Section 354(3) – Rape and murder of girl child – Disappearance of evidence – Common intention – Death sentence – "Rarest of the rare case" – Only when Court finds that offence is of an exceptionally depraved and heinous character and constitutes, on account of its execution and manner of its execution of great danger to society at large, Court may impose death sentence – Even in the case where conviction is based on circumstantial evidence, capital punishment could indeed be awarded but there is higher standard of proof over and above beyond reasonable doubt – Aggravating circumstances (Crime test) and Mitigating circumstances (Criminal test) must be taken into consideration – Appellant, on the date of filing of appeal in 2021, was 24 years – He has a family with his wife and two infants – There is nothing on record to demonstrate that he has any criminal antecedent – There is nothing against him as regards his jail conduct – Present case cannot be said to be falling in category of "rarest of rare" case – Death sentence awarded to appellant for offence punishable under Section 302 of IPC, commuted into that of imprisonment for life with stipulation that appellant shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 25 years – Total fine of Rs, I,00,000/- imposed – Half of fine imposed by way of sentence shall be payable to father of victim. (Paras 31, 35, 40, 41, 42 and 43)

Criminal Law – Circumstantial evidence – In a case of circumstantial evidence, inferences are drawn by Courts from proved facts as circumstances from which inference can be deduced – An inference is to be drawn by Court in case of circumstantial evidence keeping in mind as to whether chain of circumstances is complete or not – Only when circumstances, if collectively considered, lead to only irresistible conclusion that accused is perpetrator of crime, he can be held guilty of offence based on circumstantial evidence. (Para 25)