Patna High Court
Lallu @ Sahjad @ Md. Sajjad vs The State Of Bihar on 23 October, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.295 of 2017
Arising Out of PS. Case No.-128 Year-2014 Thana- PHULWARISHARIF District- Patna
======================================================
Md. Kamal @ Tenny @ Tenia S/o Md. Jamal, R/o- Naya Tola Phulwari
Sharif, District- Patna.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 129 of 2017
Arising Out of PS. Case No.-128 Year-2014 Thana- PHULWARISHARIF District- Patna
======================================================
1. Perwez Ahmad @ Mister @ Perwez Alam, son of Md. Kayum, Resident of
Naya Tola, Masjid Gali, P.S. Phulwarisharif, District- Patna.
2. Guddu @ Tuttu, son of Late Md. Izhar, Resident of Karbala, Phulwarisharif,
P.S. Phulwarisharif, District- Patna.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 176 of 2017
Arising Out of PS. Case No.-128 Year-2014 Thana- PHULWARISHARIF District- Patna
======================================================
Lallu @ Sahjad @ Md. Sajjad son of Md. Motizan @ Md. Hussain resident of
Hazi Harmain Colony, behind Islamia School, Naya Tola, P.S. Phulwarisharif,
Distt. Patna.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 295 of 2017)
For the Appellant/s : Mr. Mohammad Minnatullah, Advocate
Ms. Jyoti Kumari, Advocate
For the Respondent/s : Ms. S.B. Verma, Addl.P.P.
(In CRIMINAL APPEAL (DB) No. 129 of 2017)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Md. Imteyaz Ahmad, Advocate
Ms. Kiran Kumari, Advocate
Mr. Ritwik Thakur, Advocate
Ms. Vaishnavi Singh, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, Addl.P.P.
(In CRIMINAL APPEAL (DB) No. 176 of 2017)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Patna High Court CR. APP (DB) No.295 of 2017 dt.23-10-2024
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Mr. Md. Imteyaz Ahmad, Advocate
Ms. Kiran Kumari, Advocate
Mr. Ritwik Thakur, Advocate
Ms. Vaishnavi Singh, Advocate
For the Respondent/s : Mr. Ajay Mishra, Addl.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 23-10-2024
Heard Mr. Ajay Kumar Thakur, learned counsel for the
appellants in Cr. Appeal (DB) No. 129 of 2017 and Cr. Appeal
(DB) No. 176 of 2017, Mr. Mohammad Minnatullah, learned
counsel for the appellant in Cr. Appeal (DB) No. 295 of 2017 as
also Ms. Shashi Bala Verma and Mr. Ajay Mishra, learned
Additional Public Prosecutors for the State.
2. We had issued notice to the victim and the said notice
was received by her mother. Even though she has entered
appearance through Advocate but no one has appeared either
yesterday or today in course of hearing of the appeal.
3. These three appeals are arising out of the judgment of
conviction dated 13.12.2016 (hereinafter referred to as the
'impugned judgment') and the order of sentence dated 21.12.2016
(hereinafter referred to as the 'impugned order') passed by learned
1st Additional Sessions Judge, Patna (hereinafter referred to as the
'learned trial court') in Special (POCSO) Case No. 14 of 2014.
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By the impugned judgment, the appellant, namely, Md.
Kamal @ Tenny @ Tenia has been found guilty of the charges
under Sections 363/34, 302/34, 201, 376A, 376D of the Indian
Penal Code (in short 'IPC') and Section 4 of the Protection of
Children from Sexual Offences Act (in short 'POCSO Act') and
the appellants, namely, Perwez Ahmad @ Mister, Guddu @ Tuttu
and Lallu @ Sahjad @ Md. Sajjad have been found guilty of the
charges under Sections 302/34, 201, 376A, 376D IPC and Section
4 of the POCSO Act. Learned trial court, however, acquitted two
accused persons, namely, Scientist @ Mintu and Pappu who were
also charged along with these appellants.
By the impugned order, the appellant, namely, Md. Kamal @
Tenny @ Tenia has been ordered to undergo rigorous
imprisonment for seven years and fine of Rs.5000/- u/s 363/34 IPC
and in default of payment of fine, he has to undergo further
imprisonment for three months. He has also been ordered to
undergo life imprisonment with a fine of Rs.20,000/- u/s 302/34
IPC and in default of payment of fine, he has to undergo further
imprisonment for six months. For the offence u/s 201 IPC, he has
to undergo rigorous imprisonment for three years with a fine of
Rs.5000/- and in default of payment of fine, he has to undergo
further imprisonment for three months. For the offence u/s 376A
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IPC, he has been ordered to undergo rigorous imprisonment for 20
years with a fine of Rs.20,000/-. For the offence u/s 376D IPC, he
has been ordered to undergo rigorous imprisonment for 20 years
with a fine of Rs.20,000/- and in default of payment of fine, he has
to further undergo imprisonment of six months. For the offence
u/s 4 of POCSO Act, he has been ordered to undergo imprisonment
for life with a fine of Rs.20,000/- and in default of payment of
fine, he has to further undergo imprisonment for six months. The
appellants, namely, Perwez Ahmad @ Mister, Lallu @ Sahjad and
Guddu @ Tuttu have been ordered to undergo life imprisonment
with a fine of Rs.20,000/- u/s 302/34 IPC and in default of
payment of fine, they have to undergo imprisonment for six
months. For the offence u/s 201 IPC, they have been ordered to
undergo rigorous imprisonment for three years with a fine of
Rs.5000/- and in default of payment of fine, they have to further
undergo imprisonment for three months. For the offence u/s 376A
IPC, rigorous imprisonment for 20 years. For the offence under
Section 376D IPC, rigorous imprisonment for 20 years with a fine
of Rs.20,000/- and in default of payment of fine, they have to
further undergo imprisonment for six months. Further, for the
offence u/s 4 of the POCSO Act, they have been ordered to
undergo life imprisonment with a fine of Rs.20,000/- and in default
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of payment of fine, they have to further undergo imprisonment for
six months. All the sentences are to run concurrently.
Prosecution Case
4. The prosecution case is based on the fardbeyan
(Exhibit '2/2') of the mother of the victim who has been examined
as PW-5 in the present case. In her fardbeyan, recorded by Fahim
Ajad Khan, S.I. of Phulwarisharif Police Station on 09.03.2014 at
9:00 AM, the informant has stated that she is a housewife and her
husband has a business of making leather and resin ladies bag at
home with the help of Md. Arman and Md. Parwej. But, Md.
Parwej was on leave since last 2-3 days. The informant's husband
had undergone Hydrocele surgery, so on 08.03.2014 at about
07:30-08:00 PM in the night, she applied oil on his legs and hands
and then went to sleep. The two daughters of the informant were
playing on the road outside the house who were asked to go in the
house by Md. Arman. They came to the house one by one. In the
meantime, one of the daughters of the informant told the informant
that the victim 'X' is talking to one person outside the house.
Victim 'X' used to go with some known person in lure of some
eatables or on call. On 08.03.2014 at about 09:00 PM, when the
informant was going to sleep, victim 'X' was playing in the
verandah situated at the upper floor of the house. In the meantime,
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Rizwan Sajid @ Rusi came to her house searching Md. Parwej. He
asked about Parwej from Aman and went away. After he departed,
the informant and Karishma came down to find victim 'X' but she
was not present there. Then the informant called her employee and
elder bhaisur Aftab Alam to search victim 'X'. When the
informant in the company of Arman, her elder bhaisur and
neighbours reached Ishanagar field in course of searching her
daughter, she saw that a candle was burning there and accused
Mintu @ Scientist, Kamal @ Tenny, Mister, Lallu, Pappu and
Tuttu @ Guddu were present there and when they saw the
informant, they started fleeing away. The informant and others
kept on searching her daughter till 03:30 AM in the morning but
she could not be traced. On 09.03.2014 at about 08:00 AM in the
morning, Md. Aftab Alam came to know from his younger brother
Rizwan Alam that the dead body of girl was lying in the latrine
tank situated on the southern side of Ishanagar Pipeline in an under
construction house of Md. Hussain. When the informant got this
information, she went at the place of occurrence, the dead body
had been taken out of the latrine tank by the mohalla people and
she identified the dead body as that of her daughter. The dead body
of her daughter was having maroon colour dotted jumper. There
was mark of teeth bite and cut injury on her left cheek and also
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mark of injury on her left ear and other parts of the body. One Md.
Moiz Ahmad living in the southern side of the house of Md.
Hussain had heard some sound at about 10:30-11:00 PM and
raised alarm and on his alarm, some people collected near the
backside of the house of Md. Hussain and recognized the accused
Scientist and Kamal and caught them, however, they were set at
free and in the next morning, the dead body of her daughter has
been found in the latrine tank. The informant has alleged that the
accused persons, namely, Mintu @ Scientist, Kamal, Mister, Lallu,
Md. Pappu and Tutu @ Guddu raped her daughter, killed her by
strangulating and threw the dead body in the latrine tank to hide
the dead body.
5. On the basis of the said fardbeyan, Phulwarisharif P.S.
Case No.128 of 2014 was registered on 09.03.2014 at 10.30 AM.
Upon investigation of the case, police submitted a charge-sheet
against six named accused persons. The learned Special Judge,
POCSO Act took cognizance of the offences and the charge-
sheeted accused were exaplained the charges which they denied
and claimed to be tried.
6. In course of trial, the prosecution examined as many
as 12 witnesses and exhibited documentary evidences. The defence
did not adduce any oral or documentary evidence. The details of
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the prosecution witnesses and the documentary evidences
exhibited on behalf of the prosecution are being mentioned
hereunder for a ready reference:-
List of Prosecution Witnesses
PW-1 Md. Zahiruddin
PW-2 Md. Perwez Alam
PW-3 Md. Jishan Alam
PW-4 Md. Aftab Alam
PW-5 Rabia Sultana
PW-6 Md. Irshad
PW-7 Md. Kamaruddin
PW-8 Md. Farooq
PW-9 Md. Ali Ashraf
PW-10 Mukesh Chandra Kumar
PW-11 Dr. Arun Kumar Singh
PW-12 Moiz Ahmad
List of Court Witnesses
CW-1 Md. Shabad Alam
CW-2 Md. Zeeshan Alam
CW-3 Md. Javed Ali
CW-4 Md. Irshad
CW-5 Md. Perwez
CW-6 Md. Zahiruddin
CW-7 Md. Abdul Haneef
CW-8 Md. Ali Ashraf
CW-9 Md. Firoz
List of Exhibits produced on behalf of the Prosecution
Ext 1 /kkjk 164 ds C;ku ij lk{kh ijost vkye
dk mnwZ esa gLrk{kj
Ext 1/1 /kkjk 164 ds C;ku ij lk{kh eks0 th"ku
vkye dk gLrk{kj
Patna High Court CR. APP (DB) No.295 of 2017 dt.23-10-2024
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Ext 2 QnZC;ku ij lk{kh jft;k lqYrku dk
gLrk{kj
Ext 2/1 QnZC;ku ij vQrkc vkye dk gLrk{kj
Ext 1/2 /kkjk 164 ds C;ku ij lk{kh eks0 bj"kkn dk
gLrk{kj
Ext 3 e`R;q leh{kk fjiksVZ ij lk{kh eks0 "e:nhu
dk gLrk{kj
Ext 4 tIrh lwph ij lk{kh eks0 fQjkst dk
gLrk{kj
Ext-1/3 /kkjk 164 ds C;ku ij lk{kh eks0 vyh
v"kjQ dk gLrk{kj
Ext 2/2 QnZC;ku
Ext 2/3 QnZC;ku ij i`'Bkadu
Ext 3/1 e`R;q leh{kk fjiksVZ dh dkcZu izfr
Ext 5 vfHk;qDr eks0 deky mQZ Vsfu;k dk
LohdkjksfDr C;ku
Ext 4/1 tfIr lwfp
Ext 5/1 vfHk;qDr ltkn mQZ yYyw dk LohdkjksfDr
C;ku
Ext 6 esfMdy fjiksVZ
7. The learned trial court examined the evidences
available on the record and found that none of the prosecution
witnesses had seen the occurrence. All of them have stated that the
deceased girl was missing from outside her house, her body was
found on the next day in semi-nacked condition in the latrine tank.
The learned trial court noticed that no witness has stated about any
person in the company of the deceased girl, therefore, no one has
seen the girl in the company of any accused, therefore, this case
would not come in the category of 'last seen theory'. The trial
court held that the case is entirely dependent upon circumstantial
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evidence and the court has just to see whether from the evidence of
the witnesses a chain of circumstances is made so complete to
point out towards the guilt of the accused persons.
8. Having said so, the learned trial court held that the
prosecution witnesses have stated in their evidence that in course
of search of the deceased girl they reached at the field where the
accused persons were present and they were gambliing in a candle
light. They have stated that the accused persons started fleeing
away, however, two of them were caught, they told that they were
fleeing away thinking that police has come. On the next day, the
dead body of the girl had been recovered from a place near that
field and that has been taken by the learned trial court as a
circumstance to prove that the accused persons had committed the
occurrence. In the opinion of the learned trial court, there was no
possibility of any other person present, raping and killing the girl
and throwing her dead body in the latrine tank. The learned trial
court has referred the confessional statement of Md. Kamal @
Tenny and Md. Sajjad @ Md. Lallu recorded by police. The
learned trial court has, in fact, recorded in detail the confessional
statement of both the accused in paragraphs '31' and '32' of it's
judgment. Thereafter, the learned trial court has concluded in
paragraph '33' that from the confessional statement of both the
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accused persons, it is clear that they have given a clear picutre of
the occurrence and the confessional statement of both the accused
persons corroborate each other regarding their raping the deceased
along with two other accused persons. The learned trial court has
heavily relied upon the confessional statement of both the accused
persons. The learned trial court has held the accused persons guilty
and sentenced them as stated hereinabove.
Submissions on behalf of the appellants
9. Learned counsel for the appellants in all the three
appeals have vehemently submitted before this Court that the
judgement of the learned trial court is perversed inasmuch as the
learned trial court seems to have admitted the confessional
statement of the two accused recorded in police custody and has
heavily relied upon the same to prove the guilt of the accused
persons. Referring to the judgement of the Hon'ble Supreme Court
in the case of Venkatesh @ Chandra & Another Vs. State of
Karnataka reported in (2022) 16 SCC 797 (para-19 and 20),
learned counsel submits that in the said case, the Hon'ble Supreme
Court has noted that there are some features of the case which are
quite disturbing and that must be noted and deliberated upon. In
paragraph '22' of the judgment, the Hon'ble Supreme Court has
observed that the court has repeatedly found a tendency on the part
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of the prosecuting agency in getting the entire statement recorded
rather than only that part of the statement which leads to the
discovery of facts. It has been held that a confession of an accused
which is otherwise hit by the principles of the Evidence Act finds
its place on the record and such kind of statements may have a
direct tendency to influence and prejudice the mind of the court.
The Hon'ble Supreme Court observed that this practice must
immediately be stopped. It is submitted that what had happened in
the case of Venkatesh (supra) in which the Hon'ble Supreme
Court had recorded those observations has happened in the present
case. In the present case also, the learned trial court has not only
extracted the entire confessional statement of the two accused but
have also relied upon them.
10. A recent order of the Hon'ble Supreme Court in
Petition for Special Leave to Appeal (Crl.) No. 10536 of 2023
arising out of the judgment and order dated 01.03.2023 in
A482 No. 40808 of 2022 passed by the Hon'ble High Court of
Judicature at Allahabad has been placed before this Court to
submit that in its order dated 12.07.2024, the Hon'ble Supreme
Court has once again observed that the confessional statement
recorded by police officers cannot remain part of the charge-sheet
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and the same must be ignored. The Hon'ble Supreme Court has
directed the learned trial court to take note of it.
11. Learned counsel submits that, it would appear from
the materials on the record that in this case the first information
with regard to the missing of the victim girl 'X' was made
available to police by Md. Aftab Alam (PW-4) on 08.03.2014
itself. In paragraph '4' of his deposition, he has stated that he had
given the written information to police on 08.03.2014. The
informant (PW-5) has also stated in her deposition that her bhaisur
had given the written information to police but she was not aware
that what was written by him. It is submitted that this first
information submitted by PW-4 has been suppressed by the
prosecution.
12. Learned counsel submits that the dead body of the
victim girl was taken out from the latrine tank but who had taken
out the dead body from the latrine tank reamined a mystery. The
informant has stated that the people from the mohalla had taken
out the dead body from the latrine tank and on 09.03.2014 at about
8.00 AM it was Aftab Alam who was informed by his younger
brother Rizwan Alam that in the under-constructed house of Md.
Hussain situated south to the Ishanagar Pipeline in the latrine tank
a girl is lying dead. On this information, the informant had gone
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there with the other people of the mohalla but by that time the
dead body had already been taken out. The persons from the
mohalla have not been examined in this case and there is no
independent witness from the mohalla.
13. It is submitted that the informant has stated in her
examination-in-chief that when she along with her Bhaisur and
mohalla people reached in the field of Ishanagar, they saw Mister,
Lallu, Tenny, Tuttu, Scientist and Pappu were present there who on
seeing them started fleeing away. They had remained in search of
the victim girl in the night till 12.00-1.00 AM but the victim girl
could not be found. In the morning, the victim girl was found in
half-naked condition and injured lying in the latrine tank and it
appeared that the rape was committed with her. She was told by
Moiz Ahmad that Scientist and Tenny had concealed themselves
behind the bushes near the house of Hussain Sahab. It is her
statement that on the said information of Moiz Ahmad, in the
morning mohalla people had caught hold of Tenny and brutally
assaulted him. At this stage, learned counsel points out that Moiz
Ahmad has not been examined by the I.O., he was not a charge-
sheet witness in this case but deposed as PW-12. In his deposition,
he has stated that his statement was not recorded by the I.O. He
has also stated that he did not identify the accused persons.
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14. It is submitted that the I.O. got recorded the
statement of some of the prosecution witnesses under Section 164
Cr.P.C. on 20.03.2014. Some of the witnesses such as Md. Abdul
Haneef and Md. Ali Ashraf, who have not been examined in
course of trial, have stated in their statement (exhibit-1/3) that in
the morning they had reached the house of the accused and first of
all Tenny was caught whereafter four others were also caught.
Crowd had assembled, police came there and took them away. It is
submitted that even the informant has admitted about the brutal
assault upon Tenny. It is evident from the evidence of the
prosecution witnesses that Tenny was taken into police custody on
09.03.2014
itself in between 9.00-10.00 AM, however, police did
not show his arrest for about three days. All the four accused
persons who were in police custody since 09.03.2014 were
produced in court only on 14.03.2014.
15. It is submitted that in the formal FIR police has
recorded the time of receipt of information of the occurrence as
08.03.2014 at 23.00 hours, therefore, it is evident that police had
come to know about the occurrence on 08.03.2014 at 11.00 PM
that the victim girl was missing. A written information was
submitted before police but no FIR was lodged. Tenny and other
four accused were taken into custody on 09.03.2014 in between
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9.00-10.00 AM and, thereafter, the FIR was registered on
09.03.2014 at 10.30 AM, therefore, on the basis of the suspicion
raised by Md. Moiz who has denied to have identified the accused
in course of trial, Tenny was caught hold of and was brutally
assaulted and thereafter the whole prosecution case was built up
thereon.
16. Learned counsel submits that in paragraph ’17’ of
the evidence of PW-2, it has come that police had got published
the names and photographs of six persons. PW-2 is an employee of
the husband of the informant. He has stated in paragraph ‘7’ that
he works for wages for him. On perusal of his deposition, it would
appear that in paragraph ’15’ thereof, he has stated that he had not
met the I.O. of this case and had not given any application to
Darogaji for recording of his statement. In paragraph ’16’, he has
stated that after 10-12 days of the occurrence, he had gone to the
court for recording of his statement. In paragraph ’17’, he has
stated that after one or two days of the occurrence, photographs of
six persons were got published by police in the newspaper. This
witness was, therefore, suggested that he had taken name of the
accused persons in the court on the basis of the information
published in the newspaper which the witness denied. Learned
counsel has pointed out that in this case the I.O. has been
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examined as PW-10. He has, in fact, created false entry in the case
diary by showing that he had raided the house of Tenny on
13.03.2014 at 4.00 PM and had arrested him from his house
whereafter his confessional statement was recorded by him. The
prosecution witnesses are rather consistent that Tenny was caught
hold of by mohalla people on 09.03.2014 itself at about 9.00 AM
and after giving him brutal assault, he was handed over to police.
PW-10 has proved the confessional statement of Tenny (exhibit-5)
and the confessional statement of Md. Sajjad (exhibit-5/1). He has
stated that he did not verify Rizwan who had gone to the house of
the informant on the date of occurrence at 9.00 PM to know the
whereabout of Parvez, an another employee of the husband of the
informant. The I.O. had not recorded the statement of Arman under
Section 161 Cr.P.C. who was another worker with the husband of
the informant and on the date of occurrence, he was very much
present in the house and it was he from whom Rizwan had verified
about the whereabout of Parwez.
17. It is submitted that in the case of V.C. Shukla versus
State Delhi (Administration) reported in AIR 1980 SC 1382 in
which the Hon’ble Supreme Court has observed that a witness who
deliberately gives false statement is unreliable. Since one of the
submissions of the appellants in this case is that the I.O. (PW-10)
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had made false entries in the case diary and has wrongly shown the
date of arrest of the accused persons and recorded the confessional
statement of the accused despite the direction of the Hon’ble
Supreme Court not to do so.
18. It is submitted that the Hon’ble Supreme Court in the
case of State of Gujarat versus Kishanbhai and Others reported
in (2014) 5 SCC 108 has held that where the conduct of the I.O. is
blameworthy, the matter be referred to the Home Department of
the Government and every State Government will incorporate in
its existing training programmes for prosecution officials course-
content drawn and such responsibility be vested in the committee
of senior officers.
19. It is submitted that PW-10 has admitted that he had
not recorded the statement of Zahiruddin (PW-1) and in paragraph
’19’ of his deposition, he has stated that he had not inspected the
field in which the accused persons were playing gamble. He had
also not investigated as to who had taken out the dead body from
the latrine tank. No one from Madina Gali was examined by him.
In paragraph ’20’ of his deposition, PW-10 has stated that in her
re-statement the informant (PW-5) had not stated about Moiz
Ahamd (PW-12). Learned counsel submits that paragraph ’23’ and
’24’ of the deposition of PW-10 would be important to take note
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of. He was suggested by defence that accused Kamal @ Tenny was
handed over to police after assaulting him on 09.03.2014 itself
which this witness denied. It is submitted that apparently PW-10
has made false statement and even the prosecution witnesses have
stated that Tenny was handed over to police on 09.03.2014 itself.
PW-10 was suggested that the arrest of Tenny was wrongly shown
on 13.03.2014.
20. Learned counsel submits that PW-10 had taken
blood samples of the accused persons but the blood samples
reports have been suppressed by the prosecution. Referring to the
order dated 24.03.2014, 01.04.2014 and 04.04.2014 of the learned
trial court, learned counsel submits that the accused persons had
voluntarily given their blood and twice blood samples were taken
but the reoprt has not been brought before the court which
amounts to suppression of material fact and this would lead to
drawing an adverse inference against the prosecution.
21. Learned counsel submits that PW-10 has stated in
paragraph ’23’ of his deposition that he had not taken blood
samples of the mother of the victim girl and no DNA test was
conducted. He had not been examined as to whether there was any
blood on the pyajama or not. He had not given any application in
the court to get recorded the confessional statement of accused
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Tenny under Section 164 CrPC. He has claimed that he sent the
blood samples for DNA test to Forensic Science Laboratory but
had not received the report.
22. Learned counsel submits that the I.O. has stated that
he had not found any blood or semen on the gendra (a kind of bed
sheet). He had not seized the same although he had shown seizure
of liquor bottles and pyajama of the victim girl in the seizure list
dated 13.03.2014 but no test was conducted of the liquor bottles
and the pyajama was not produced for identification by the family
members.
23. Learned counsel submits that in these circumstances,
learned trial court has grossly erred in appreciating the evidences
available on the record and has convicted the accused persons on
mere suspicion. Reliance has been placed upon the judgment of
the Hon’ble Supreme Court in the case of Surajdeo Mahto and
Another vs. State of Bihar reported in AIR 2021 SC 3643
(paragraph ’45’) to submit that mere suspicion cannot be accepted
as impeccable evidence to prove the guilt.
Submissions of the State
24. Ms. Shashi Bala Verma and Mr. Ajay Mishra,
learned Additional Public Prosecutors for the State have though
made all efforts to defend the impugned judgment of the learned
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trial court but towards the end of their submissions, learned
Additional Public Prosecutors find it difficult to establish the chain
of criminological events from the circumstances which are
available on the record. They have agreed at the bar and rightly so
that the learned trial court had grossly erred in exhibiting the
whole confessional statement of the two accused persons and then
drawing strength on that basis to prove the guilt of the accused
persons.
25. Learned APPs do not controvert the submissions of
the learned counsel for the appellants that in this case, the only
circumstance which is appearing from the prosecution evidence is
that in the night when some of the prosecution witnesses had gone
in search of the victim girl in the field of Ishanagar, they had seen
the accused persons playing gamble in the candle light and they
had tried to flee away apprehending that the police had arrived. It
is not controverted that nobody had seen either of the accused
persons taking away the victim girl from her house or on way from
her house to the place where the dead body was found even as
several houses exist in the vicinity.
Consideration
26. Having heard learned counsel for the appellants and
learned Additional Public Prosecutors for the State as also on
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perusal of the trial court records, this Court finds that the whole
prosecution case is based on circumstantial evidences. The learned
trial court has come to a conclusion that nobody had seen the
victim girl in the company of any of the accused, therefore, this
case is not based on last seen theory.
27. In a case of circumstantial evidence, we have to keep
in mind the principles of panchsheel as laid down by the Hon’ble
Supreme Court which has been discussed on various occasions in
catena of judgments of the courts. We will refer those judgments at
an appropriate stage hereinafter.
28. On perusal of the evidences on the record, it would
appear that admittedly PW-4, who is bhaisur of the informant, had
given a written information to police on 08.03.2014. The I.O. (PW-
10) has not produced the sanha. The fact as to submission of the
application on 08.03.2014 has not been mentioned in the case
diary. PW-10 has stated that he cannot say what were stated in the
sanha. He was suggested that because no name was mentioned in
the sanha, therefore, it has been knowingly not attached to the case
diary. PW-10, though, denied the suggestion but his conduct in not
making sanha as part of the case diary and not producing the same
in course of trial would lead to conclude that the prosecution has
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suppressed the initial version of PW-4 which could have reflected
the circumstances under which the victim girl had gone missing.
29. This Court finds that in her fardbeyan, the informant
(PW-5) has stated that on 08.03.2014 at about 7:30-8:00 PM, she
had applied oil on the hands and legs of her husband and went to
sleep. She has stated that at this time her two daughters including
the victim girl were playing on the road, they were told by Md.
Arman to go to their house on which both came. This Court finds
it unnatural on the part of the informant that she went to a sleep at
7:30-8:00 PM and at that time her two daughters were playing on
the road. She claims that on the asking of Arman her both
daughters came one after another. If this statement is correct then it
is to be believed that the victim daughter of the informant had also
come inside the house but at this stage, the informant has stated in
her fardbeyan that one of her daughters told her that the victim girl
was talking to a person outside the house. The informant says that
the victim girl was in habit of going with any known person if he
offers any food item to her. She has stated that when she was
sleeping at about 9:00 PM then the victim girl was playing on the
floor of the verandah, during this period Rizwan Sajid @ Rusi had
come to her house to enquire about one of the karigars Parwez and
had gone back after asking about Parwez from Arman. After his
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departure, when the informant and one of her daughters came
down in the house, they did not find the victim girl. Here this
Court finds that according to the informant one of her daughters
had seen the victim girl talking to a person. Who was that person
could not be identified. The said daughter of the informant has not
been examined. The accused persons were not subjected to Test
Identification Parade (TIP) and this part of the information
available in the fardbeyan has not at all been investigated.
30. This Court further finds that immediately before the
victim girl went missing, one Rizwan Sajid @ Rusi had come to
the house of the informant to enquire about Parwez who was on
leave for 3-4 days. This Rizwan Sajid @ Rusi is a resident of the
same mohalla but why he came in unusual time at 9:00 PM in
search of Perwez who was one of the karigars employed by the
husband of the informant, is not known. It has come in evidence
that neither the informant nor any other prosecution witness had
gone to the house of Rizwan Sajid @ Rusi in search of the victim
girl. The I.O. has stated in paragraph ’16’ of his deposition that he
had not done any verification of Rizwan Sajid @ Rusi and he had
not done any investigation on the point that on the said date at
about 9:00 PM he was at the place of occurrence. He had not
investigated as to for what Rizwan Sajid @ Rusi had gone to the
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house of the informant at 9:00 PM. The I.O. has also stated that he
had not investigated that after 8:30 PM where was Arman and
what work he did. Md. Arman has not been examined in this case.
It, therefore, appears that the prosecution case suffers from basic
infirmities inasmuch as the two most important persons, namely,
Rizwan Sajid @ Rusi and Md. Arman who were there in the house
of the informant at 9:00 PM on 08.03.2014 have not been verified
and investigated. The informant (PW-5) has not supported her own
fardbeyan on the point that Rizwan Sajid @ Rusi had come to her
house on the date of occurrence. She has stated in paragraph ’15’
of her deposition that Rizwan Sajid @ Rusi is from her mohalla
but he is not related to her. She has further stated that Rizwan Sajid
@ Rusi had not come to her house on the date of occurrence. She
again said that even if he had come, she was not aware of it. This
Court, therefore, clearly finds that the informant having sensed the
weakness of the prosecution case made it further complicated by
deviating from her statement in the fardbeyan.
31. This Court, further, finds from the evidences on the
record that only circumstance which has impressed the learned
trial court is the event that when the informant along with her
bhaisur and mohalla people reached in the field of Isha Nagar,
they had seen the six named accused persons present there, some
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of them were sitting and a candle was burning there. On seeing
them those persons had started fleeing away. It has come in
evidence of Md. Aftab Alam (PW-4) that in course of search of the
victim girl they reached to a field which was surrounded by houses
from all the four sides. He found that some persons were sitting
there. They had burnt a candle, some were standing and on seeing
the witness and other persons they started fleeing away. They were
chased and reached at the Petrol Pipe Road. PW-4 identified
Guddu, Teniya, Mister, Lallu, Md. Pappu, Mintu @ Scientist. This
witness has stated that the accused persons fled towards the auto
garage, out of them one was Guddu and the other was Teniya. The
informant (PW-5) has stated that she along with PW-4 and Md.
Zahiruddin (PW-1) and people of the mohalla had gone to the field
of Isha Nagar. She had seen the accused persons who started
fleeing away on seeing the witness and others.
32. Md. Zahiruddin (PW-1) has stated in his
examination-in-chief that in course of search of the victim girl, in
the field he found Tenny and Lallu who had started fleeing away
on seeing them. This witness has stated that when he and other
persons asked them as to why they were fleeing, they said that
they were apprehensive that police had reached. This witness is the
brother-in-law of the informant. He has stated that he had not
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given any application to the police requesting to conduct TIP and
had not given any application saying that he identified the accused
persons. He had stated that prior to recording of his statement
under Section 164 CrPC, Lallu and Tenny had come in the court
and their photographs were also published in the newspaper. He,
however, denied the suggestion that Tenny and Lallu were got
identified in the court and seeing their photographs he had taken
their names. This Court finds that the only circumstance which has
been brought for consideration by the prosecution is the fact that
the informant, bhaisur and brother-in-law, who had gone in search
of the victim girl in the night, had seen the accused persons. While
PW-4 and PW-5 have taken name of six accused persons whom he
identified in the night while fleeing away, PW-1 has taken name of
only two persons. This Court also finds that these witnesses have
not stated that there was any source of light in the field and how
they were able to identify the accused persons when they were
fleeing away. PW-2 and PW-4 both stated that they saw some
persons in the field and there was a candle light but they did not
claim that they identified them in the candle light. At this stage,
one of the witnesses, Md. Jishan Alam who is the nephew of the
informant and has been examined as PW-3 has stated that he had
seen some boys indulged in gambling in candle light whereafter he
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lighted his torch and on this the accused persons started fleeing
away. Some of them had opened their pant and some had opened
their shirt, they chased them and caught Mister, Guddu, Lallu and
Tenny and asked them as to why they were fleeing away then
Mister told them that they were fleeing away being afraid of
police. This Court finds that PW-3 has not been named by PW-4
and PW-5 as one of the family members who had been
accompanying them in course of search of the victim girl. PW-3
has been planted at a belated stage and his evidence is materially
different from the evidence of PW-4 and PW-5. This Court is,
therefore, of the opinion that PW-3 is a wholly unreliable witness.
33. This Court further finds that the prosecution
witnesses have stated that Tenny and other four accused were
taken into custody on 09.03.2014 in between 9-10:00 AM. The
informant (PW-5) and other witnesses who have made their
statements under Section 164 CrPC are consistent that Tenny was
caught hold of by the mohalla people, he was brutally assaulted in
between 9-10:00 AM on 09.03.2014, then police came and took
him away with them. Thereafter other accused persons were also
arrested. The informant (PW-5) came out with a statement that
after the recovery of the dead body of her daughter from the tank
she was told by one Moiz Ahmed that Scientist and Tenny had
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concealed themselves behind the bushes near the house of Hussain
Sahab during night. On the said information of Moiz Ahmed, in
the morning mohalla people had caught hold of Tenny and brutally
assaulted him. PW-7 who is one of the witnesses of the seizure list
has deposed that after recovery of dead body, the accused were
immediately arrested and police had kept them under their control.
34. It is found that on the one hand Moiz Ahmed
informed the mohalla people that Scientist and Tenny concealed
themselves behind the bushes near the house of Hussain Sahab, the
informant (PW-5), her bhaisur (PW-4) and her brother-in-law
(PW-1) all have stated that they had seen Scientist and Tenny both
with other accused persons in the field. Moiz Ahmed, on whose
information mohalla people had caught hold of Tenny, was not
made a charge-sheet witness in this case but he has deposed as
PW-12. He has stated that his statement was not recorded by the
I.O. Most important is that he has not identified the accused
persons in court.
35. This Court, therefore, finds that the accused Tenny
was brutally assaulted and handed over to police on 09.03.2014 in
between 9-10:00 AM and thereafter the FIR was registered on the
same day at 10:30 AM. It has come in evidence that the dead body
had already been recovered by 5:00 AM, therefore, for about 5-6
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hours after recovery of the dead body no FIR was registered. This
Court is of the opinion that even the arrest of Tenny was
suppressed by the I.O. (PW-10) and only after four days he was
shown arrested and produced in court on 14.03.2014. The
fardbeyan of the informant which was recorded on 09.03.2014 at
9:00 hours has been seen by learned ACJM on 11.03.2014. Thus,
there is not only a delay in recording of the fardbeyan, there is also
a delay of two days in sending the FIR to the court of learned
jurisdictional Magistrate. This, in the opinion of the Court further
creates a dent in the prosecution story, authenticity of the
prosecution case would become doubtful and it will prove fatal to
the prosecution.
36. This Court finds that on 13.03.2014, the I.O. (PW-
10) has extracted confessional statements of Md. Kamal @ Tenny
and Md. Sajjad @ Lallu. Their whole confessional statements have
been placed on the record and made part of the charge-sheet in
violation of the directions of the Hon’ble Supreme Court in the
case of Venkatesh @ Chandra & Another (supra). The
confessional statements were recorded by police after illegally
keeping the accused persons in confinement. Even the learned trial
court remained oblivious of this fact and committed gross error in
exhibiting the whole confessional statement of the two accused as
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Exhibit ‘5’ and Exhibit ‘5/1’ respectively. Not only this, the
learned trial court has gone to the extent of recording that both the
accused had confessed that they were thrashing the victim and
slapping her. This Court finds that this confessional statement was
not admissible in evidence, it could not have been made part of the
charge-sheet and exhibiting of these documents has resulted in
miscarriage in the administration of justice.
37. This Court further finds that even though the
accused persons were arrested by police, they were not subjected
to medical examination which would have provided some
information with regard to their complicity in the alleged
occurrence. The accused persons had voluntarily given their blood
samples which would be evident from the order dated 24.03.2014,
01.04.2014 and 14.04.2014 of the learned trial court but the report
of the test of blood samples has not been brought before the court.
The I.O. (PW-10) has stated that he had not taken blood samples of
the mother of the victim girl and had not got her DNA test
conducted. He had not got examined as to whether there was any
blood on the pyjama of the victim or not. The I.O. (PW-10)
claimed that he had sent the blood samples of accused for DNA
test to Forensic Science Laboratory (in short ‘FSL’) but had not
received the report. The I.O. (PW-10) has not placed on record the
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forwarding letter sent to the FSL and the acknowledgment receipt
of the FSL showing receipt of those articles for examination. This
is the failure of the prosecution and one of the vital circumstances
which could have been proved in connection with this case has not
been established.
38. This Court has also seen the seizure list dated
13.03.2014 showing seizure of liquor bottles and burnt pyjama of
victim girl on the basis of the information furnished by one of the
accused persons in his confessional statement. From naked eyes, it
appears that on the seizure list in the middle, signature of the
accused was taken and this Court takes a view that the signature of
the accused was obtained on a blank sheet of paper. No
identification of pyjama has been done by family members of the
deceased and the same was not got examined. The janghiya and
phulpant of the accused have been shown seized on 13.03.2014
but none of these seized clothes were sent to ‘FSL’. The I.O. (PW-
10) has stated that he had not found any blood or semen on the
gendra (a kind of bed sheet) which was seized from the house of
accused Md. Kamal @ Tenny.
39. This Court would not lose sight of the evidence on
the record that the victim girl was subjected to rape and she was
murdered but this is an unfortunate case in which this Court finds
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that the whole investigation of the case has been done on mere
suspicion. On several aspects of the matter, the I.O. has not
verified the facts, the persons and the circumstances. From the
discussions made hereinabove, this Court has no hesitation in
recording that the conduct of the I.O. (PW-10) is blameworthy and
this would result in failure of the prosecution case.
40. In the case of Jaharlal Das Vs. State of Orissa
reported in (1991) 3 SCC 27, the Hon’ble Supreme Court has held
that an accused cannot be convicted on mere suspicion how so
strong it may be. Reference in this connection may be made to the
judgment of the Hon’ble Supreme Court in the case of Jahar Lal
(supra). Paragraph ‘4’ is being reproduced hereunder for a ready
reference.
“4. No doubt the offence is a shocking one but the gravity
of the offence cannot by itself overweigh as far as legal
proof is concerned. Invariably in such cases a person last
seen with the victim, unless otherwise there are
circumstances prima facie exonerating him, would be the
prime suspect but in the ultimate judicial adjudication
suspicion, howsoever strong, cannot be allowed to take the
place of proof.”
41. In the case of V.C. Sukhla (supra), the Hon’ble
Supreme Court has observed that a witness who deliberately gives
false statement is unreliable. In this case, the I.O. (PW-10) has made
false statements and created wrong entries in the case diary with
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regard to the date of arrest of the accused persons, thus his deposition
would not inspire much confidence.
42. In a case based on circumstantial evidence, the
judgment of the Hon’ble Supreme Court in the case of Sharad
Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4
SCC 116 must be taken note of. Paragraph ‘152’ of the judgment is
being reproduced hereunder for a ready reference.
“152. Before discussing the cases relied upon by the High
Court we would like to cite a few decisions on the nature,
character and essential proof required in a criminal case
which rests on circumstantial evidence alone. The most
fundamental and basic decision of this Court is Hanumant
v. State of Madhya Pradesh1.
“This case has been uniformly followed and applied by
this Court in a large number of later decisions up-to-
date, for instance, the cases of Tufail (Alias) Simmi v.
State of Uttar Pradesh17 and Ramgopal v. State of
Maharashtra18. It may be useful to extract what
Mahajan, J. has laid down in Hanumant case1:”It is
well to remember that in cases where the evidence is of
a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should in the
first instance be fully established, and all the facts so
established should be consistent only with the
hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far
complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused
and it must be such as to show that within all human
probability the act must have been done by the
accused.”
1. 1952 SCR 1091 : AIR 1952 SC 343 : 1953 Cri LJ 129
17. (1969) 3 SCC 198 : 1970 SCC (Cri) 55
18. AIR 1972 SC 656 : (1972) 4 SCC 625
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43. In the case of Dilavar Hussain and Others versus
the State of Gujarat and Another reported in (1991) 1 SCC 253
again the Hon’ble Supreme Court has observed in paragraphs ‘3’
and ‘4’ as under:-
“3. All this generated a little emotion during
submissions. But sentiments or emotions,
howsoever strong, are neither relevant nor have
any place in a court of law. Acquittal or
conviction depends on proof or otherwise of the
criminological chain which invariably comprises
of why, where, when, how and who. Each knot of
the chain has to be proved, beyond shadow of
doubt to bring home the guilt. Any crack or
loosening in it weakens the prosecution. Each
link, must be so consistent that the only
conclusion which must follow is that the accused
is guilty. Although guilty should not escape (sic).
But on reliable evidence, truthful witnesses and
honest and fair investigation. No free man should
be amerced by framing or to assuage feelings as
it is fatal to human dignity and destructive of
social, ethical and legal norm. Heinousness of
crime or cruelty in its execution however
abhorrent and hateful cannot reflect in deciding
the guilt.
4. Misgiving, also, prevailed about appreciation
of evidence. Without adverting to submissions
suffice it to mention that credibility of witnesses
has to be measured with same yardstick, whether,
it is ordinary crime or a crime emanating due to
communal frenzy. Law does not make any
distinction either in leading of evidence or in its
assessment. Rule is one and only one namely,
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the witnesses, who claim to have seen the
incident in this case, withstand this test is the
issue? But before that some legal and general
questions touching upon veracity of prosecution
version may be disposed of.”
44. In the light of the aforementioned judgments of the
Hon’ble Supreme Court, this Court finds that in the present case,
the only circumstance is the suspicion against the accused because
some of the witnesses have claimed that they had seen the accused
persons in the field. Even as the field is surrounded by several
houses from all the four sides, there is no independent witness
from the mohalla who has seen these persons in the field. There is
no witness who claimed to have seen the victim girl going with
any of the accused persons. This Court further finds that the
conviction of the accused persons being based on confessional
statements cannot sustain and is liable to be set aside.
45. Accordingly, these appeals are allowed. The
impugned judgment and order of the learned trial court as regards
the appellants are set aside and the appellants are acquitted of the
charges giving them benefit of doubt.
46. The appellants in Criminal Appeal (DB) No. 129 of
2017 and Criminal Appeal (DB) No.176 of 2017 are on bail,
hence, they and their sureties are discharged from the liability of
bail bonds.
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47. The appellant Md. Kamal @ Tenny @ Tenia in
Criminal Appeal (DB) No. 295 of 2017 is in custody. He shall be
released forthwith if not wanted in any other case.
48. At this stage, we cannot remain oblivious of the fact
that it is a case in which a child has been subjected to rape and
murder. In the discussions recorded herein above, we have noticed
how the I.O. of this case has dealt with this matter. The lapses on
the part of the I.O. have been found at various stages of
investigation. At first instance, when written application was
submitted by PW-4 with the police station on 08.03.2014 in the
night hour, no action has been taken by the Officer-in-Charge of
the police station to register a sanha at first instance and then take
steps towards tracing out the victim girl. The written application
submitted by PW-4 does not form part of the case diary and has
not been produced in course of trial. In course of investigation, the
I.O. did not take up the verification work of Md. Rizwan Sajid and
Md. Arman who were the two important persons who were lastly
present in the house of the informant just before the victim girl
went on missing. The prosecution witnesses have stated that Md.
Kamal @ Tenny was caught hold of by the mohalla people in the
morning between 09-10:00 AM on 09.03.2014, he was brutally
assaulted, police came and took him away. All other accused were
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also arrested immediately. This Court has found that police did not
show their arrest for about four days. Their arrest has been shown
on 13.03.2014, the confessional statements of the accused were
obtained in the police station and then they were produced in court
on 14.03.2014. Even as it was a case of rape and the accused were
arrested soon after the recovery of the dead body, they were not
subjected to medical examination as required under Section 53
CrPC. The accused persons voluntarily gave their blood samples
for test but it is not known as to why the blood test reports were
not obtained and made part of the investigation. The I.O. has not
recorded statement of independent witnesses of the locality. He has
not verified the place of occurrence and the people whose houses
are there in surrounding. He had not obtained blood samples of the
mother of the victim girl and did not get the DNA test conducted.
He claimed that blood samples of accused were sent for DNA test
to FSL but he had not received the report. He has not even proved
the forwarding letter showing that he had sent the blood samples
for DNA test to the FSL. The I.O. has gone to the extent of making
false entries in the case diary showing the date of arrest of the
accused as 13.03.2014. Evidence has also come that the I.O.
published the photographs of the accused persons in the newspaper
and no step was taken by him to get conducted TIP of the accused
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even as the informant claimed that one of his daughters had seen
the victim girl talking to a person at the relevant time. Above all,
despite the directions of Hon’ble Supreme Court in case of
Venkatesh @ Chandra (supra), I.O. has recorded confessional
statements of the accused and made them part of the charge-sheet.
This Court would reproduce paragraphs ’22’ and ’23’ of
Venkatesh @ Chandra (supra):-
“22. We must observe that we have repeatedly found a
tendency on the part of the prosecuting agency in getting
the entire statement recorded rather than only that part of
the statement which leads to the discovery of facts. In the
process, a confession of an accused which is otherwise hit
by the principles of the Evidence Act finds its place on
record. Such kind of statements may have a direct tendency
to influence and prejudice the mind of the court. This
practice must immediately be stopped. In the present case,
the trial court not only extracted the entire statements but
also relied upon them.
23. The other disturbing feature that we have noticed is that
voluntary statements of the appellants were recorded on a
DVD which was played in court and formed the basis of
the judgment of the trial court as is noticeable from paras
34 and 35 of its judgment. Such a statement is again in the
nature of a confession to a police officer and is completely
hit by the principles of the Evidence Act. If at all the
accused were desirous of making confessions, the
investigating machinery could have facilitated recording of
confession by producing them before a Magistrate for
appropriate action in terms of Section 164 of the Code.
Any departure from that course is not acceptable and
cannot be recognised and taken on record as evidence. The
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40/48trial court erred in exhibiting those DVD statements Exts.
P-25 to 28. As a matter of fact, it went further in relying
upon them while concluding the matter on the issue of
conviction.”
49. Recently in case of Sanuj Bansal Vs. The State of
Uttar Pradesh and Anr. in Petition for Special Leave to Appeal
(Crl.) No. 10536 of 2023 which arose out of a judgment of the
Hon’ble High Court of Judicature at Allahabad, the Hon’ble
Supreme Court has observed as under:-
“We have perused the affidavit of Shri Prashant Kumar,
Director General of Police, Uttar Pradesh. He has stated
that in the State of Uttar Pradesh, confessional statements
are not being recorded by the Investigating officers and the
present case is an exception where charge-sheet contains
alleged confessional statement of the accused recorded by
the police. He has assured that appropriate action will be
taken against the concerned Investigation Officer.
It is obvious that confessional statements recorded by the
Police officers which are part of the charge-sheet cannot
remain a part thereof and the same must be ignored. The
Trial Court to take note of this”.
50. We are reminded of the judgment of the Hon’ble
Supreme Court in case of State of Gujarat v. Kishanbhai
reported in (2014) 5 SCC 108. Paragraph ’19’, ’22’ and ’23’ of the
judgment reads as under:-
“19. Every time there is an acquittal, the consequences are
just the same, as have been noticed hereinabove. The
purpose of justice has not been achieved. There is also
another side to be taken into consideration. We have
declared the respondent-accused innocent, by upholding
Patna High Court CR. APP (DB) No.295 of 2017 dt.23-10-2024
41/48the order of the High Court, giving him the benefit of
doubt. He may be truly innocent, or he may have
succeeded because of the lapses committed by the
investigating/prosecuting teams. If he has escaped, despite
being guilty, the investigating and the prosecution agencies
must be deemed to have seriously messed it all up. And if
the accused was wrongfully prosecuted, his suffering is
unfathomable. Here also, the investigating and prosecuting
agencies are blameworthy. It is therefore necessary, not to
overlook even the hardship suffered by the accused, first
during the trial of the case, and then at the appellate stages.
An innocent person does not deserve to suffer the turmoil
of a long-drawn litigation, spanning over a decade or more.
The expenses incurred by an accused in his defence can
dry up all his financial resources — ancestral or personal.
Criminal litigation could also ordinarily involve financial
borrowings. An accused can be expected to be under a
financial debt, by the time his ordeal is over.
22. Every acquittal should be understood as a failure of the
justice delivery system, in serving the cause of justice.
Likewise, every acquittal should ordinarily lead to the
inference, that an innocent person was wrongfully
prosecuted. It is therefore essential that every State should
put in place a procedural mechanism which would ensure
that the cause of justice is served, which would
simultaneously ensure the safeguard of interest of those
who are innocent. In furtherance of the above purpose, it is
considered essential to direct the Home Department of
every State to examine all orders of acquittal and to record
reasons for the failure of each prosecution case. A Standing
Committee of senior officers of the police and prosecution
departments should be vested with the aforesaid
responsibility. The consideration at the hands of the above
Committee, should be utilised for crystallising mistakes
committed during investigation, and/or prosecution, or
Patna High Court CR. APP (DB) No.295 of 2017 dt.23-10-2024
42/48both. The Home Department of every State Government
will incorporate in its existing training programmes for
junior investigation/prosecution officials course-content
drawn from the above consideration. The same should also
constitute course-content of refresher training programmes
for senior investigating/prosecuting officials. The above
responsibility for preparing training programmes for
officials should be vested in the same Committee of senior
officers referred to above. Judgments like the one in hand
(depicting more than ten glaring lapses in the
investigation/prosecution of the case), and similar other
judgments, may also be added to the training programmes.
The course-content will be reviewed by the above
Committee annually, on the basis of fresh inputs, including
emerging scientific tools of investigation, judgments of
courts, and on the basis of experiences gained by the
Standing Committee while examining failures, in
unsuccessful prosecution of cases. We further direct, that
the above training programme be put in place within 6
months. This would ensure that those persons who handle
sensitive matters concerning investigation/prosecution are
fully trained to handle the same. Thereupon, if any lapses
are committed by them, they would not be able to feign
innocence when they are made liable to suffer departmental
action for their lapses.
23. On the culmination of a criminal case in acquittal, the
investigating/prosecuting official(s) concerned responsible
for such acquittal must necessarily be identified. A finding
needs to be recorded in each case, whether the lapse was
innocent or blameworthy. Each erring officer must suffer
the consequences of his lapse, by appropriate departmental
action, whenever called for. Taking into consideration the
seriousness of the matter, the official concerned may be
withdrawn from investigative responsibilities, permanently
or temporarily, depending purely on his culpability. We
Patna High Court CR. APP (DB) No.295 of 2017 dt.23-10-2024
43/48also feel compelled to require the adoption of some
indispensable measures, which may reduce the malady
suffered by parties on both sides of criminal litigation.
Accordingly, we direct the Home Department of every
State Government to formulate a procedure for taking
action against all erring investigating/prosecuting
officials/officers. All such erring officials/officers
identified, as responsible for failure of a prosecution case,
on account of sheer negligence or because of culpable
lapses, must suffer departmental action. The above
mechanism formulated would infuse seriousness in the
performance of investigating and prosecuting duties, and
would ensure that investigation and prosecution are
purposeful and decisive. The instant direction shall also be
given effect to within 6 months.”
51. We are of the opinion that in this case the lapses in
investigation has seriously affected the outcome of this case and it
would fall in the category of a blameworthy lapse on the part of
the investigating authorities. We, therefore, direct the Home
Department, Government of Bihar to take appropriate action,
identify the erring official(s) for the failure of the prosecution and
find out whether it is a case of sheer negligence or the lapse on the
part of the investigating authorities or is in the nature of culpable
lapses as envisaged by the Hon’ble Supreme Court in the case of
Kishanbhai (supra). If it is found that it is a case of culpable
lapse, the consequences in terms of the judgment of the Hon’ble
Supreme Court shall follow. The decision of the Department in
compliance of this direction be placed before this Court for perusal
Patna High Court CR. APP (DB) No.295 of 2017 dt.23-10-2024
44/48
within four months from the date of receipt/communication of a
copy of this judgment.
52. This Court has been noticing in course of hearing of
the criminal appeals that in large number of cases, entire confessional
statements of the accused are being made part of the charge-sheet and
in substantial number of cases even the trial judges are exhibiting the
entire confessional statements. They are not only exhibiting the
confessional statements, they are heavily relying upon them as has
happened in the present case. The decision of the trial courts are
getting influenced by the confessional statements which are on the
records and marked exhibits. In the case of Venkatesh @ Chandra
(supra), the Hon’ble Supreme Court has very elucidately discussed
the law as to which part of the statement recorded by police would be
admissible and why the entirety of the statements would not be
admissible in evidence. A good deal of discussions may be found in
this regard in paragraph ’20’ and ’21’ of the judgment which we
quote hereunder:-
“20. The trial court in paras 27 to 30 of its judgment extracted
voluntary statements of the appellants. First and foremost,
going by the parameters of Section 27 of the Evidence Act
(“the Evidence Act, 1872”) only so much of information
which relates distinctly to the facts thereby discovered can be
stated to have been proved. The extent and ambit of the said
provision as well as applicability thereof were considered by
the Privy Council in Pulukuri Kotayya v. King Emperor2 as
under : (SCC OnLine PC)
2. 1946 SCC OnLine PC 47 : AIR 1947 PC 67
Patna High Court CR. APP (DB) No.295 of 2017 dt.23-10-2024
45/48“10. Section 27, which is not artistically worded,
provides an exception to the prohibition imposed by
the preceding section, and enables certain statements
made by a person in police custody to be proved. The
condition necessary to bring the section into operation
is that the discovery of a fact in consequence of
information received from a person accused of any
offence in the custody of a police officer must be
deposed to, and thereupon so much of the information
as relates distinctly to the fact thereby discovered may
be proved. The section seems to be based on the view
that if a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby
that the information was true, and accordingly can be
safely allowed to be given in evidence; but clearly the
extent of the information admissible must depend on
the exact nature of the fact discovered to which such
information is required to relate. Normally the section
is brought into operation when a person in police
custody produces from some place of concealment
some object, such as a dead body, a weapon, or
ornaments, said to be connected with the crime of
which the informant is accused. Mr Megaw, for the
Crown, has argued that in such a case the “fact
discovered” is the physical object produced, and that
any information which relates distinctly to that object
can be proved. Upon this view information given by a
person that the body produced is that of a person
murdered by him, that the weapon produced is the one
used by him in the commission of a murder, or that the
ornaments produced were stolen in a dacoity would all
be admissible. If this be the effect of Section 27, little
substance would remain in the ban imposed by the
two preceding sections on confessions made to the
police, or by persons in police custody. That ban was
presumably inspired by the fear of the legislature that
a person under police influence might be induced to
confess by the exercise of undue pressure. But if all
that is required to lift the ban be the inclusion in the
confession of information relating to an object
subsequently produced, it seems reasonable to
suppose that the persuasive powers of the police will
prove equal to the occasion, and that in practice the
ban will lose its effect. On normal principles of
construction their Lordships think that the proviso to
Section 26, added by Section 27, should not be held to
nullify the substance of the section. In their Lordships’
Patna High Court CR. APP (DB) No.295 of 2017 dt.23-10-2024
46/48view it is fallacious to treat the “fact discovered”
within the section as equivalent to the object
produced; the fact discovered embraces the place
from which the object is produced and the knowledge
of the accused as to this, and the information given
must relate distinctly to this fact. Information as to
past user, or the past history, of the object produced is
not related to its discovery in the setting in which it is
discovered. Information supplied by a person in
custody that ‘I will produce a knife concealed in the
roof of my house’ does not lead to the discovery of a
knife; knives were discovered many years ago. It
leads to the discovery of the fact that a knife is
concealed in the house of the informant to his
knowledge, and if the knife is proved to have been
used in the commission of the offence, the fact
discovered is very relevant. But if to the statement the
words be added “with which I stabbed A” these words
are inadmissible since they do not relate to the
discovery of the knife in the house of the informant.”
(emphasis supplied
21. As was observed by the Privy Council in Pulukuri
Kotayya case2 the words — “with which I stabbed A” were
inadmissible since they did not relate to the discovery of knife
in the house of the informant. Applying this logic, only that
part of the statement which leads to the discovery of certain
facts alone could be marked in evidence and not the entirety
of the statement. Coming to the instant case and going by the
principle and the illustration highlighted by the Privy Council,
out of the statement of Accused 1, only the following portion
except the words printed in “italics” would be admissible and
can be marked in evidence:
“… If I am taken there, I will show the spot where we
committed murder, and we will show the place where
we have thrown the knife and the rod. And we will
show the shop in which we sold the jewelleries.”
The expression “where we committed murder” must not come
on record. Similarly, all the earlier facts narrated in the
statement about past history which are in the nature of self-
implication, would be inadmissible as amounting to a
confession made to a police officer. All the statements,
namely, Exts. P-21 to P-24 must be read accordingly.”
Patna High Court CR. APP (DB) No.295 of 2017 dt.23-10-2024
47/48
53. We are of the view that merely setting aside the
impugned judgment and order of the learned trial court would not
be sufficient in this case. The issues with regard to recording of the
confessional statements in police custody, making them part of the
charge-sheet and then getting them exhibited in the trial court are
required to be addressed by the stakeholders, i.e. the police as well
as the Judiciary. The Hon’ble Supreme Court has in fact observed in
its order dated 12.07.2024 in case of Sanuj Bansal (supra) that the
confessional statements recorded by the police officers which are
part of the charge-sheet cannot remain a part thereof and the same
must be ignored. The trial court is to take note of this.
54. In the light of these discussions in order to sensitise
the Police as well as the Presiding Officers of the trial court, we
direct that a copy of this judgment be sent to the Director General
of Police, Bihar to look into the matter and issue appropriate
instructions to the police officers dealing with investigation of the
case(s) in the matter of recording of confessional statements of
accused in police custody.
55. The judgment be also placed before Hon’ble the
Chief Justice-cum-Patron-in-Chief and the Hon’ble Administrative
Judge-cum-Executive Director of the Bihar Judicial Academy,
Patna to consider issuing appropriate direction to the Director of
the Academy to conduct a training session for the trial judges to
Patna High Court CR. APP (DB) No.295 of 2017 dt.23-10-2024
48/48
make them understand the judgment of the Hon’ble Supreme
Court in the matter of recording and admissibility of a confessional
statement of the accused extracted in police custody.
56. In result, the appeals are allowed.
(Rajeev Ranjan Prasad, J)
(Ashok Kumar Pandey, J)
SUSHMA2/Rishi
AFR/NAFR AFR
CAV DATE
Uploading Date 30.10.2024
Transmission Date 30.10.2024