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2023 Supreme(Pat) 1018
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and ALOK KUMAR PANDEY, JJ.
Death Reference No.9 of 2021 with Cr. App. (DB) No. 728 of 2021
(18.12.2023)
State of Bihar (in 9)
Amar Kumar (in 728) ... Appellants
vs.
Amar Kumar (in 9)
State of Bihar (in 728) ... Respondents
For the Petitioner: Mr. Krishna Chandra (in 9); Krishna Chandra (in 728).
For the Respondent: Mr. Abhimanyu Sharma, APP (in 9); Abhimanyu Sharma, APP (in 728).
Headnote:
Protection of Children from Sexual Offences Act, 2012 – Section 4 – Indian Penal Code, 1860 – Sections 302/34, 201/34 and 376DB/34 – Indian Evidence Act, 1872 – Section 45 – Gang rape and murder of girl child – Common intention – Death sentence – No poison could be detected in contents of viscera sent to Laboratory – Materials on which Trial Court has based his judgment, appear to be factually incorrect – In post-mortem report, Doctor has specifically stated that no definite opinion could be given regarding cause of death – No injury was found on entire body of deceased – Complete absence of any evidence of molestation or rape sends doubting whether it was same body which was treated as corpus delicti of case – Story of confession also does not appear to be true for reason that appellant was arrested from his house and his confession was recorded before a B.D.O. – Judicial dispensation can ill-afford such heavy reliance on expertise of a sniffer dog about whose skill, nothing is known; nor is there any evidence of it having been trained appropriately – Claim of prosecution that deceased was locked inside a room, could not be proved – Trial Court has only given a lip service to Panchsheel principle of circumstantial evidence – Appellant acquitted of charges levelled against him. (Paras 23, 25, 26, 30, 35, 37, 62 and 67)
Criminal Law – Canine Tracking evidence – Animal science tells us that dogs can be very proficient if they are trained properly – Advantage with them as compared to humans is of their possessing a very sharp olfactory sense which could help trace offender – But this cannot be an evidence, much less strong evidence unless Court examines reliability of dog skills, its past patterns of performance or its handler's capabilities – It cannot ever be taken as a reliable pointer towards the commission of an offence at hands of an offender – Dog cannot take an oath and submit itself for cross-examination; however, its handler can go to witness-stand and give his evidence which would but only be a hearsay evidence – Even if it could be starting point for police to begin its investigation, it cannot be received as an evidence so strong as for Trial Court not to need any corroborative evidence. (Paras 39, 40 and 41)
Criminal Procedure Code, 1973 – Section 313 – Examination of accused – In every inquiry or trial, for the purposes of enabling accused personally to explain away circumstance appearing in evidence against him, Trial Court could, at any stage, without previously warning accused, put such questions to him as it would consider necessary and shall after witnesses for prosecution have been examined and before accused is called on for his defence, question him generally on the case – Trial Court cannot ignore or avoid putting all incriminating circumstances to accused for knowing his response. (Paras 52 and 53)
Criminal Procedure Code, 1973 – Section 313 – Examination of accused – In every inquiry or trial, for the purposes of enabling accused personally to explain away circumstance appearing in evidence against him, Trial Court could, at any stage, without previously warning accused, put such questions to him as it would consider necessary and shall after witnesses for prosecution have been examined and before accused is called on for his defence, question him generally on the case – Trial Court cannot ignore or avoid putting all incriminating circumstances to accused for knowing his response. (Paras 52 and 53)
Criminal Law – Appreciation of evidence – Reaction differs from humans to humans – A person may loose his equilibrium and balance of mind but another may remain a silent spectator till he is able to reconcile himself and then react in his own way – Even if appellant were found inside room, it would be absolutely naive to give any hard and fast rule having any universal application, with regard to reaction of a person in a given circumstance. (Para 61)
Criminal Procedure Code, 1973 – Section 53A – Medical examination of accused – Though, obedience to mandate to Section 53A may not be mandatory, if reasonable grounds exist, then a medical examination as postulated by Section 53A (2) of Cr.P.C. must be conducted and that includes examination of accused and description of materials taken from person of accused for DNA profiling – There must be reasonable grounds for believing that examination of a person will afford evidence as to commission of an offence of rape or an attempt to commit rape before taking any decision of not examining accused of crime medically. (Para 58)
Ashutosh Kumar, J. – The Death Reference No. 9 of 2021 and Criminal Appeal (DB) No. 728 of 2021 have been heard together and are being disposed off by this common judgment.
2. We have heard Mr. Krishna Chandra, learned Advocate for the appellant and Mr. Abhimanyu Sharma, learned APP for the State.
3. The sole appellant has been convicted under Sections 302/34, 201/34 and 376DB/34 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012, vide judgment dated 08.10.2021, passed by the learned Special Judge (POCSO)-cum-Additional District & Sessions Judge-VI, Araria, in Spl. POCSO Act Case No. 46 of 2019, arising out of Forbeisganj (Simraha) P.S. Case No. 758 of 2019. On the same day, he has been sentenced to be hanged by neck till he died. Some other directions have been issued by the Special Court/Trial Court, viz., destruction of seized articles, if any, in due course of law and referring the matter to D.L.S.A. for granting compensation of Rs.10,00,000/- to the family of the victim etc.
4. A 12 year old girl is said to have been gang-raped and then killed and thrown on a road near a temple, where she along with her grand-mother (P.W. 1) had gone to witness a fair organized on the occasion of Nagpanchami festival.
5. The occurrence took place on 05.08.2019, but the FIR was registered after the dead body was recovered on 06.08.2019. The dead body was sent for postmortem examination on the same day.
6. The FIR lodged by P.W. 1, the grandmother of the victim/deceased, was registered against unknown. In the fardbeyan, which was recorded by Sub-Inspector, D.C. Mishra (not examined), she has alleged that her grand-daughter, who was residing with her, had accompanied her to the fair but she disappeared from the fair. A frantic search was made but to no avail. On 06.08.2019, the grandson of the brother of P.W. 1 informed her that the dead body of the victim was lying on the road near the temple. The dead body was buck naked. She accompanied by her husband (P.W. 2) went to the place where the dead body was lying and identified it to be of her grand-daughter.
7. It appeared to her that some unknown persons had molested and killed her. There were blood drops below her waist. The local mukhiya informed about the occurrence to the local administration when the police party arrived and started the investigation. The dead body was seized and was sent for postmortem examination.
8. On the basis of the afore-noted fardbeyan statement of P.W. 1, Forbeisganj (Simraha) P.S. Case No. 758 of 2019, dated 06.08.2019 was instituted for the offences under Sections 302, 201, 354A, 34 of the IPC and Section 8 of the POCSO Act, 2012 against unknown.
9. The police after investigation submitted charge-sheet against the appellant, who was charged for the offences under Sections 302, 376D, 201/34 of the IPC and Section 4 of the POCSO Act, 2012 and was tried by the Special POCSO Court.
10. The Trial Court, after having examined 13 witnesses on behalf of the prosecution and none on behalf of the defence, convicted and sentenced the appellant as aforesaid.
11. We must, at the outset, express our dissatisfaction with the manner in which the Special Court has handled the case and has convicted and sentenced the appellant to death without caring for the basic principles of the law.
12. It would be necessary first to refer to the circumstance under which the appellant was arrested and then subjected to trial. At the place where the dead body was found, a tracker sniffer dog was brought, who first smelt the dead body and then moved into a villager’s house. Since, nothing incriminating was found there, the tracking dog next entered the house of the appellant. The appellant was arrested in his house.
13. Though the Trial Court has listed the evidence of the appellant having closed himself inside a room, which was locked from outside as one of the circumstances against him, but there is no evidence whatsoever of the door having been broken o
