Ravi Kumar Singh vs The State Of Bihar
2022 Latest Caselaw 1369 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                    CRIMINAL APPEAL (DB) No.198 of 2014
Arising Out of PS. Case No.-132 Year-2012 Thana- MUNGER MUFFASIL District- Munger
======================================================

Ravi Kumar Singh Son of Bulbul Singh Resident of Village- Sheetalpur, Police Station- Mufassil, District- Munger.

... ... Appellant.

Versus The State of Bihar

... ... Respondent.

====================================================== Appearance :

For the Appellant : Mr. Bipin Kumar, Advocate.

For the State : Ms. S.B.Verma, A.P.P.

====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE A. M. BADAR)

Date : 24-02-2022

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.

Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

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. Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

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. Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

(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

condition, sweating profusely:

(i). P.W.1 Tripurari Singh.

(ii). P.W.2 Soni Devi.

(iii). P.W.3 Anjani Singh.

(iv). P.W.4 Wakil Singh.

(v). P.W.5 Chandrashekhar Singh.

Rest of the witnesses are official witnesses. P.W.6

Bhai Bharat Kumar is the first informant. P.W.7 Vinay Shanker Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

Prasad is the Investigating Officer. P.W.8 Dr. Madhumita

Mandal who had examined the dead body and P.W.9 Dr. Rakesh

Kumar Sinha are Autopsy Surgeons of the Sadar Hospital.

Some documents are also exhibited during the course of

investigation. Those documents are seizure list, the First

Information Report as well as the printed F.I.R., inquest report

and few signatures.

4. The defence of the appellant/accused was that of

total denial.

5. After hearing the parties, the learned trial court was

pleased to hold that the circumstantial evidence establishes that

the appellant/accused had committed rape on unknown woman

and then committed her murder in the room of Sitakund

Secondary School with the co-accused. Accordingly, the

appellant/accused is convicted and sentenced as indicated in the

opening paragraph of this Judgment.

6. We heard the learned counsel appearing for the

appellant/accused. He submitted that the evidence on record is

not justifying the conviction recorded against the

appellant/accused. Per contra, the learned A.P.P. supported the

impugned Judgment and order of the learned trial court. We

have also perused the records and the proceedings. Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

7. Undoubtedly, case of the prosecution is based on

the circumstantial evidence as nobody had witnessed

commission of rape and murder of the unknown lady staying in

the premises of Sitakund Secondary School. By catena of

decisions, it is well settled that in order to record the conviction

in a case based on circumstantial evidence, the following

conditions must be strictly fulfilled:

(I). The circumstances from which the conclusion of the guilt is to be drawn should be fully established.

(II). The facts so established should be consistent not only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(III). The circumstances should be of conclusive nature and tendency.

(IV). They should exclude every possible hypothesis except the one to be proved.

(V). There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.

8. Now, let us examine whether the prosecution has Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

proved that the unknown woman, the dead body of whom was

lying in the room of the Sitakund Secondary School on

04.07.2012 by P.W.6 Bhai Bharat Kumar died homicidal death.

9. Evidence on record shows that the dead body was

dispatched for autopsy to the Sadar Hospital where the post-

mortem examination was conducted by a team of doctors

including P.W.9 Dr. Rakesh Kumar Sinha. Evidence of this

Medical Officer shows that the said unknown woman lady died

due to hemorrhagic shock and injuries to her vital organs such

as left lung and heart. His evidence further shows that during

autopsy he has noticed that there was fracture of left ribs and

sernum of the dead body and those injuries were antimortem in

nature. External injuries such as laceration and bruises were

also found on the dead body. There is nothing in cross-

examination of P.W.9 Dr. Rakesh Kumar Sinha to disbelieve his

evidence regarding homicidal death of the unknown woman.

10. Apart from the injuries on the dead body, P.W.9

Dr. Rakesh Kumar Sinha has also noticed a wooden stick

inserted in the vagina of the dead body. P.W.8 Dr. Madhumita

Mandal is Gynecologist. She examined the dead body and also

found a stick inserted in the vagina of the dead body. During

post-mortem examination, it was found that the stick was 5" Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

long and 1/2" in diameter.

11. Thus, finding of laceration as well as bruises over

the dead body apart from insertion of a wooden stick in the

vagina of that female victim unerringly indicates that she was

subjected to rape prior to her homicidal death. In this view of

the matter, it needs to be concluded that the deceased was

subjected to rape prior to her murder.

12. Now, let us examine whether it is proved by the

evidence on record that the appellant/accused is a person who

had participated in rape as well as murder of unknown female

whose dead body was found in the Sitakund Secondary School.

13. Prior to adverting evidence of the prosecution on

this aspect, it will have to be put on record that all witnesses

examined by the prosecution in order to establish the

circumstances leading to the death of the female victim namely,

P.W.1 Tripurari Singh, P.W.2 Soni Devi, P.W.3 Anjani Singh,

P.W.4 Wakil Singh and P.W.5 Chandrashekhar Singh have

turned hostile to the prosecution. There is nothing in their

evidence to incriminate the appellant/accused in the subject

crime. Another witness who is examined by the prosecution is,

Investigator i.e. P.W.7 Vinay Shanker Prasad. Apart from other

witnesses, this Investigator had examined witnesses namely Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

Akhilesh Kumar and Abhijeet Kumar during the course of

investigation, but they were not examined before the learned

trial court by the prosecution for the reasons best known to it.

With this it is apposite to quote the relevant provisions of

Sections 161 and 162 of the Code of Criminal Procedure as well

as that of Sections 27 and 145 of the Indian Evidence Act. Those

read thus:

"Sections 161 and 162 of the Code of Criminal

Procedure:

161. Examination of witnesses by police.-(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer trully all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

records.

162. Statements to police not to be signed: Use of statements in evidence.-(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act."

Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

Sections 27 and 145 of the Indian Evidence Act,

1872 (1 of 1872):

27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."

14. By now, by catena of Judgments, it is settled that

statement under Section 161 of the Code of Criminal Procedure

of a witness recorded by the police is not and cannot be an

evidence before the court. Use of such police statement is very

limited, as seen from the provisions of Section 161 of the Code

of Criminal Procedure and Section 145 of the Indian Evidence Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

Act. 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 the contradiction from

the former statement of the witness is proved through the

Investigating Officer, that duly proved contradiction does not

translate such contradiction into substantive evidence before the

court. Such duly proved contradiction at the most can be used

for impeaching the credit of witnesses examined by the police

by throwing doubt on his veracity. Thus, even the duly proved

contradiction surfacing on record can at the most make

substantive evidence of such witness doubtful. Even in the

recent Judgment of the Hon'ble Supreme Court in Criminal

Appeal No.374 of 2020 Parvat Singh and others Vs. The

State of Madhya Pradesh decided on 2 nd March, 2020, this

position is reiterated by holding that as per settled proposition of

law, a statement recorded under Section 161 of the Code of

Criminal Procedure is inadmissible in evidence and cannot be

relied upon or used to convict the accused. It is further held that

as per the settled proposition of law, the statement recorded

under Section 161 of the Code of Criminal Procedure can be

used only to prove the contradictions and/or omissions.

15. With this legal position, let us now revert back Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

to the evidence adduced by the prosecution. As indicated in the

foregoing paragraphs, there is not a single witness other than the

official witnesses to establish the circumstances which according

to the prosecution established the guilt of the appellant/accused

in the subject crime. As indicated in the foregoing paragraphs,

the private witnesses viz. P.W.1 to P.W.5 have not supported the

prosecution case and there is nothing in their evidence to

incriminate the accused. Then only four official witnesses

remain. Let us deal their evidence one by one.

16. P.W.6 Bhai Bharat Kumar, Police Station Officer,

has only proved the F.I.R. lodged by him and had stated about

the situation prevalent on the scene of the occurrence when he

visited the Sitakund Secondary School at about 07.15 P.M. on

04.07.2012. His evidence shows that dead body of a unknown

woman in naked condition was lying in one of the rooms of that

school. Nearby the dead body, a petticoat and white colour bag

was lying and there were signs of dragging that dead body.

Blood was also found spilled near the head of that dead body.

This indicates homicidal death and we have already held, on the

basis of the medical evidence that the victim died homicidal

death. Except this, evidence of P.W.6 Bhai Bharat Kumar is of

no assistance to the prosecution.

Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

17. Then comes the evidence of Investigating Officer

P.W.7 Vinay Shanker Prasad. Evidence of this witness came to

be recorded in a very strange manner. From his mouth, the

prosecution has elicited police statement recorded under Section

161 of the Code of Criminal Procedure of independent

witnesses examined by him during the course of investigation.

This Investigating Officer has deposed about what witnesses

such as Akhilesh Kumar, Abhijeet Kumar (not examined before

the court), P.W.4 Wakil Singh (hostile witness) and other hostile

witnesses such as Soni Devi, Anjani Singh and Tripurari Singh

had disclosed to him during the course of investigation. P.W.7

Vinay Shanker Prasad-the Investigating Officer disclosed before

the court the contents of statement of these witnesses by stating

that these witnesses disclosed him that the appellant/accused

along with co-accused Mukesh, Bhaskar and Shishu Prasad

went to the shop of Abhijeet Kumar ( a witness not examined

before the court), purchased snacks from him. Abhijeet Kumar

disclosed him that they are going for drinking liquor and went

towards the Sitakund Secondary School. The Investigating

Officer further stated that he came to know from this witness

that about 03.30 P.M. he saw all accused persons near the school

sweating profusely. This Investigating Officer further stated Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

that witness Akhilesh Kumar (not examined before the court)

had stated him that about 03.30 P.M. he saw the

appellant/accused along with other accused persons coming out

of the school in freightened condition and at that time, pant and

banyan of co-accused Mukesh was smeared with blood. The

Investigating Officer proceeded to disclose before the court that

from investigation of P.W.4 Wakil Singh (a witness who turned

hostile), he came to know that at about 11.30 A.M., the

appellant/accused along with the co-accused were eating snacks

and drinking liquor in the play ground of that school and then

went towards that school.

18. It is very unfortunate to note that though police

witnesses such as Akhilesh Kumar and Abhijeet Kumar were

not examined before the court, the learned trial court has

virtually translated their police statement recorded under

Section 161 of the Code of Criminal Procedure coming on

record from the mouth of the Investigating Officer P.W.7 Vinay

Shankar Prasad, as substantive evidence before the court and

recorded conviction and resultantly sentenced the appellant for

grave offences of murder and rape. Totally illegal approach

was adopted by the learned trial court in doing so in the light of

the legal position which we have put on record in the foregoing Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

paragraphs.

19. As noted in the foregoing paragraphs, P.W.1

Tripurari Singh, P.W.2 Soni Devi, P.W.3 Anjani Singh, P.W.4

Wakil Singh and P.W.5 Chandrashekhar Singh have turned

hostile to the prosecution and have not spoken anything

incriminating against the appellant/accused, still the contents of

their police statements were brought on record through the

mouth of Investigating Officer P.W.7 Vinay Shanker Prasad and

those were used for recording conviction and resultant sentence,

without understanding the legal position that those police

statements recorded under Section 161 of the Code of Criminal

Procedure cannot take place of the substantive evidence before

the court. The approach of the learned trial court as such is

patently illegal and cannot be endorsed.

20. Another piece of evidence relied by the learned

trial court for convicting the appellant/accused of the serious

offence of rape and murder is confessional statement of the

appellant/accused allegedly recorded under Section 27 of the

Evidence Act which has resulted in recovery of the pant, T-shirt

and the shawl. We have already put on record provisions of

Section 27 of the Indian Evidence Act. In the matter of

Pandurang Kalu Patil V/s. State of Maharashtra reported in Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

2002 AIR (SC) 733, the legal position in that regard is

sufficiently described by the Hon'ble Apex Court. The

relevant portion of that Judgment reads thus:

"5. EVEN the recent decision in State of Maharashtra V/s. Damu this Court followed Pulukuri Kottaya with approval. The fallacy committed by the Division Bench as pe the impugned judgment is possibly on account of truncating the word "fact" in Section 27 of the Evidence Act from the adjoining word "discovered". The essence of Section 27 is that it was enacted as a proviso to the two preceding sections (see Sections 25 and 26) which imposed a complete ban on the admissibility of any confession made by an accused either to the police or to anyone while the accused is in police custody. The object of making a provision in Section 27 was to permit a certain portion of the statement made by an accused to a police officer admissible in evidence whether or not such statement is confessional or non-confessional. Nonetheless, the ban against admissibility would stand lifted if the statement distinctly related to a discovery of fact.

A fact can be discovered by the police (investigating officer) pursuant to an information elicited from the accused if such disclosure was followed by one or more of a variety of causes. Recovery of an object is only one such cause.

Recovery, or even production of object by itself Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

need not necessarily result in discovery of a fact. That is why Sir John Beaumont said in Pulukuri Kottaya that, "it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced". The following sentence of the learned Law Lord in the said decision, though terse, is eloquent in conveying the message highlighting the pith of the ratio:

"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."

We are not unmindful of the legal position that it is

absolutely not necessary that a statement of the accused which

leads to recovery of any article should always be recorded in

presence of the Panch witnesses or that the Panch witnesses

should support that recovery by adducing evidence before the

court. If evidence of the Investigating Officer who has deposed

to the fact of recovery is found to be trustworthy then such

evidence can be accepted. However, what is material is that the

fact which is deposed to as discovered in consequence of the Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

information received from the accused must be a relevant fact,

incriminating accused in the subject crime. In the case in hand,

there is no evidence to suggest that the shawl which was

recovered on the basis of the confessional statement of the

appellant/accused was belonging to the deceased. There is no

evidence on record to show that the pant or T-shirt which is

recovered at the instance of the appellant/accused were the

clothes which were found to be used during commission of the

subject crime. Thus recovery of such clothes of routine use in

no way, can constitute an incriminating evidence against the

appellant/accused. However, this recovery of clothes is also

used by the learned trial court to convict the appellant/accused

in such serious offence. There is no forensic report on record

which can suggest that these articles were found to be used in

the commission of the subject crime. The prosecution has not

explained as to why the forensic evidence is not forthcoming.

21. In this view of the matter, we see no legal evidence

on record to convict the appellant/accused in the subject crime

regarding the offences punishable under Sections 376 and 302

of the Indian Penal Code.

22. In the result, we proceed to pass the following

orders:

Patna High Court CR. APP (DB) No.198 of 2014 dt.24-02-2022

(I). The appeal is allowed.

(II). The impugned 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 is

quashed and set aside.

(III). The appellant/convicted accused is acquitted of

the offences punishable under Sections 376 and 302 of the

Indian Penal Code. He be set at liberty forthwith if not required

in any other case. Fine if any paid by him be refunded to him.

(A. M. Badar, J)

( Sunil Kumar Panwar, J)

P.S./-

AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          28.02.2022.
Transmission Date       28.02.2022.