Deepak Kumar @ Deepak Baitha vs The State Of Bihar
2023 Latest Caselaw 4153 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (DB) No.420 of 2021
  Arising Out of PS. Case No.-151 Year-2016 Thana- RUNISAIDPUR District- Sitamarhi
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Deepak Kumar @ Deepak Baitha Son of Godaila Baitha @ Ram Sudhisth Baitha Resident of Village - Tikauli, P.S. - Runnisaidpur, District - Sitamarhi.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s     :      Mr. Ansul, Adv.
                               Mr. Amit Kumar Jha, Adv.
For the Respondent/s    :      Mr. Ajay Kumar Mishra, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 30-08-2023

We have heard Mr. Ansul, the learned advocate

for the appellant and Mr. Ajay Mishra for the State.

2. The appellant stands convicted under

Sections 302, 376, 366(A) and 201 of the I.P.C. and

Section 4 of the POCSO Act, 2012 vide judgment dated

22.01.2021 passed by the learned 1 st Additional

Sessions Judge cum Children Court, Sitamarhi in Trial

No.11/2018, (Reg. No. 766/2018) and by order dated

28.01.2021, he has been sentenced to undergo Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

imprisonment for life, to pay a fine of Rs.5,000/- and in

default of payment of fine, to further suffer

imprisonment for six months each for the offences under

Sections 302 and 376 of the I.P.C. and Section 4 of the

POCSO Act, 2012. For the offence under Section

366(A), the appellant has been sentenced to undergo

R.I. for ten years, to pay a fine of Rs.2,000/- and in

default of payment of fine, to suffer imprisonment for

three months. For the offence under Section 201 of the

I.P.C., the appellant has been sentenced to undergo R.I.

for three years, to pay a fine of Rs.1,000/- and in

default of payment of fine, to suffer further

imprisonment for one month. The sentences however,

have been ordered to run concurrently.

3. The minor daughter of the Informant

(P.W.8) is alleged to have been raped, killed and thrown

in the graveyard of the village of the Informant.

4. The FIR was lodged by P.W.8 (mother of Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

the deceased) at about 11.00 A.M. in the graveyard

which was recorded by the S.I. of Police, Sunil Kumar

Srivastava (P.W.10). P.W.8 has alleged that in the night

of 23.04.2016, she slept along with her daughter

(deceased) at about 10.00 P.M.. When she awoke at

about 3.00 O'clock in the morning, she did not find her

daughter. She looked for her everywhere but could not

find her. The main door of the house was found to be

open. She immediately contacted her relatives staying in

the same house and also went out in search of her

daughter along with those relatives. At about 8.30 in the

morning on 24.04.2016, some villagers told her that the

dead body of a girl is lying in the " Budhia Gachhi"

graveyard. On such information, she and her brothers-

in-law viz. Nathuni Sah (P.W.1) and Ram Narayan Sah

(P.W.2) went to the graveyard and came back with the

information that the dead body is that of the daughter of

(P.W.8). Thereafter, Therefore, the entire family went to

the graveyard. Looking at the dead body from close Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

quarters, it was found by her that the deceased had bled

through her nose and there were marks of violence on

her jaws. There was swelling at the back of the neck of

the deceased. In the same breath, P.W.8 has further

stated that her villager viz. the appellant had been

harassing the deceased for last one year and had been

coaxing her to marry him or else she would be killed.

This had become very frequent in the last one month but

her daughter was not ready for any matrimonial alliance

with the appellant. She therefore suspected that the

appellant along with his associates has kidnapped the

victim and strangulated her to death and threw her dead

body in the graveyard.

5. On the basis of the aforenoted fardbeyan

statement, Runnisaidpur P.S. Case No.151/2016 dated

24.04.2016 was registered for investigation under

Sections 302, 201 and 34 of the I.P.C.

6. The Informant has disclosed the age of Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

her daughter to be 18 years in the F.I.R. Precisely, for

this reason, no case under the POCSO Act, 2012 was

initially registered.

7. The police, after investigation, submitted

charge-sheet against the appellant but, as it appears

from the records of this case, the investigation with

respect to other suspected accused persons remained

pending. The appellant was tried for the offences under

Sections 302, 201, 366(A) of the I.P.C. and Section 4

of the POCSO Act, 2012.

8. It may also be stated here that the case of

the appellant was placed before the J.J.B., Sitamarhi

where the appellant was declared to be a child in conflict

with law but, since he was more than 16 years of the

age at the time of occurrence and was alleged to have

committed heinous offence as defined under Section

2(33) of the J.J.B. Care and Protection of Children Act,

2015, his case was transferred to the Children Court. Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

9. There is nothing on record to indicate

whether any assessment of the appellant was done

under Section 15 of the J.J. Act, 2015. Nonetheless,

cognizance of the offence was taken and charges were

framed against the appellant under the aforenoted

Sections. The statement of the appellant was also

recorded under Section 313 of the Cr.P.C. where he

expressed his innocence. The Children Court convicted

the appellant and sentenced him as aforesaid after

having examined ten witnesses on behalf of the

prosecution, which included the Doctor and the I.O., who

have been examined as P.W.6 and P.W.10 respectively.

10. Mr. Ansul learned advocate has assailed

the judgment on several counts and has submitted that

the Trial court did not at all weigh the evidence and

merely because a girl had lost her life and there was

some suspicion against the appellant, jumped to the

conclusion that the appellant along with his associates

had committed the murder after raping the deceased and Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

threw the dead body in the graveyard.

11. In support of the aforenoted contention,

he has submitted that P.W.8 has, in the first instance,

stated about the age of the deceased to be 18 years but,

during trial, she, for some reason of the other, declared

the age of the deceased to be 15 years. It has been

urged before us that this was a deliberate attempt of

P.W.8 to bring the case within the mischief of the

POCSO Act, 2012 by showing the deceased to be a

minor.

12. He has further submitted that the Trial

court relied upon a School Leaving Certificate which was

never proved but was only annexed with the case diary

that the deceased was only a minor at the time of the

occurrence. He laments that the procedure adopted by

the Trial court was absolutely unknown and the

reasoning given in the judgment is also perverse. The

Trial court has erroneously relied upon the provisions Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

contained in Section 172 (2) of the Cr.P.C. which

permits any criminal court to send for the police diaries

of a case under enquiry or trial in such court and such

diaries may be used but not as an evidence of the case,

but only to aid it in such enquiry or trial.

13. This provision is only for facilitating the

courts to satisfy themselves that the line on which the

trial has proceeded is the correct trajectory to be

followed. Section 172 (2) does not dispense with the

requirement of law under the J.J. Act, 2015 as also the

POCSO Act, 2012 for the determination of the age of

either victim or the malefactor.

14. The other grounds urged on behalf of the

appellant is that during the Trial, P.W.8 claims to have

learnt about the dead body of the deceased lying in the

graveyard from Pramod Sah (P.W.3), Samina Khatoon

(P.W.4) and Ravindra Kumar (P.W.7). At the trial,

Pramod Sah and Samina Khatoon have not supported Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

the prosecution case and have been declared hostile.

They do not claim to have met P.W.8 ever or of having

told her about the dead body of the deceased lying in

the graveyard.

15. Ravindra Kumar (P.W.7) has only stated

that he informed the P.W.8 in the morning of

24.04.2016 at about 8.00 O'clock that in the night

intervening between 23rd and 24th April, 2016, he had

seen the appellant talking to the deceased on road and

he identified them in the torch-light. The reason for his

coming out of his house was to attend to the call of

nature. Apart from this, no other statement is stated to

have been made by P.W.7 to P.W.8, specially with

respect respect to the appellant along with his forcibly

taking away the deceased with him. He did not even

know as to that when did the deceased come out of her

house to meet the appellant.

16. The other limb of argument on behalf of Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

the appellant is that even the postmortem report is not

in consonance with the accusation levelled against him.

The hymen of the deceased was found to be ruptured

but it was an old rupture, which is not suggestive of the

deceased having being subjected to sexual intercourse

recently. There was no injury on the private parts but

blood clots were found in the vaginal track.

17. The pathological report, which is not part

of the record but referred to by Dr. Prem Pushp Lohia

(P.W.6), who had conducted the postmortem

examination, no spermatozoa was found. In fact, the

pathological report did not talk of any presence of

epithelial cells in the vaginal swab. Despite this finding

in the postmortem report, P.W.6 (Doctor) has opined

that there could be a possibility of sexual attack before

the death. Interestingly, the cause of death has been

opined to be asphyxia because of strangulation.

18. The deceased had her clothes on her body. Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

This, Mr. Ansul asserts, is a definite indicator of the fact

that the deceased was not raped. There can be no

gainsaying that the death of the deceased is homicidal

but there is no evidence whatsoever linking this death to

the appellant. There is no evidence on record of the

appellant either having called the deceased to which she

responded by coming out of her house or of having

taken her to some unknown destination in the company

of his associates, where she was raped or that she was

killed by smothering.

19. The last of the evidence used by the

prosecution to prop up its case is the CDR of the mobile

telephone number belonging to the appellant. Though,

the I.O. has told the Trial court that he had seized the

telephone of the appellant during the course of the

investigation but, no seizure memo has been exhibited

nor was it put in the police papers. Even assuming that

the telephone of the appellant was seized in the absence

of any seizure of the telephone of the deceased or of her Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

mother, it could not have been ascertained whether

there was any call by the appellant or any other source

of communication between him and the deceased.

20. When did the deceased come out of the

house and why and that also in the dead of the night

remains unknown. Thus, he sums up his argument by

suggesting that only because, in the past, there was

some inkling of a love-relationship between the appellant

and the deceased, that a suspicion has been raised that

it was the appellant who must have raped and killed the

deceased.

21. As opposed of the aforesaid contention,

Mr. Ajay Mishra, learned advocate for the State, has

submitted that the circumstances speak for itself. The

deceased was being stalked by the appellant for a long

time. The evidence suggests that within last one month

of her death, the pressure on her had been mounted by

the appellant to marry him, to which she was not Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

agreeable. This was the motive and reason strong

enough to commit the offence. The deceased came out

of the house in the night sometimes after 10.00 P.M.

when her mother had gone to sleep. When did she come

out of the house may not be relevant but, since the

appellant and the deceased knew each other and the

deceased had not been responding favourably to the

pressures exerted by the appellant upon her for

marrying him, the deceased was killed. There are though

some missing links, Mr. Mishra admits, but only for that,

the prosecution case cannot be jettisoned altogether.

22. He further submits that it is a serious case

of rape and murder of a minor girl and in the absence of

any enmity or any clue about any other persons having

killed the deceased, it was the appellant only who had

been harassing her for the last one year, was held to be

responsible.

23. In this context, it has been urged by the Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

State that no interference is required with the findings of

the Trial court and the ultimate conviction and

sentencing of the appellant.

24. The mother of the deceased (P.W.8) has

in the Fardebeyan narrated a story which is difficult to

believe. She has spoken about the age of the deceased

to be 18 years. During trial, she has stated that she

handed over an already prepared statement to the I.O.

of the case. By 8.30 in the morning, she had learnt that

a dead body was spotted in the graveyard of the village

was of none else but of her daughter. After this

information, she along with her family members went to

the graveyard to find the dead body of her daughter.

25. These sequence of events presuppose that

if the deceased was identified by the witnesses, who are

the residents of the village, some of whom had even

suggested that it was the appellant who had taken away

the deceased along with his associates and had killed Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

her, those witnesses would have told the P.W.8 about

the complicity of the appellant. In the F.I.R., which may

not be the most comprehensive of all documents, she

has only jumped to the conclusion on the basis of

suspicion on the appellant and not on the basis of any

information provided to her by the villagers.

26. We have noticed that three of the persons,

who were named by P.W.8 as having informed her about

the occurrence, did not support the prosecution case in

its entirety. Two of them have turned hostile and P.W.7

is only said to have seen the deceased in the company of

the appellant in the night. This statement of P.W.7 and

his identifying the appellant in the company of the

deceased appears to be highly doubtful. As a villager, he

may not be interested in the safety of the daughter of

another house but for sure would have questioned the

appellant and the deceased the reason for their roaming

on the road in the dead of the night.

Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

27. Some of the witnesses have stated before

the Trial court that there was a pre-marriage function in

the house of the appellant. Whether the deceased visited

the house of the appellant of her own or on the asking

of the appellant remains unknown. Whether she went go

on the asking of the appellant in her own capacity or in

the capacity of the daughter of the house representing

her family also remains unknown.

28. There would have been some reasons of

planning for the deceased to come out of her house in

the night. That she had come out of her house is certain.

The P.W.8 had found the main door of the house open

and kept ajar early in the morning. This was the time

when she entertained doubts about some mishap in the

family. Did the deceased walk out of the house as part

of any pre-hatched plan with the appellant or the

appellant had come to her house, called her from outside

to which he responded favourably is not known. In either

of the circumstances, some persons residing in the Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

family would have got a hint of a member of the family

coming out of the house in the night. Evidence suggests

that P.W.8 was residing with her brother-in-law's family

and the younger brother-in-law was residing next doors.

If at all, the deceased had walked out of the house of

her own as part of any plan engineered by the appellant

or by the appellant and deceased together, then how and

when the murder took place remains unknown. All these

conjectures therefore entitle the appellant to argue that

he was not at all concerned with the deceased having

walked out of her house in the night.

29. In this context, the statement of P.W.8

that the deceased did not have any strong liaison with

any person in the village assumes importance. Even if it

is assumed that the appellant had some love relationship

with the deceased, the deceased was never spotted by

her mother in the company of the appellant.

30. In order to test the case from another Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

angle, we have examined the deposition of the I.O.

(P.W.10) of this case. He claims to have arrested the

appellant after six days of the recording of the F.I.R. on

30.04.2016. After his arrest, the appellant is said to

have told the I.O. that beneath the pillow in his house,

the mobile telephone is kept with which he used to call

the deceased in the past. The aforenoted mobile

telephone was seized by the I.O.

31. As noted above, there is no seizure memo

on record.

32. Whose telephone was that which was

seized? Whether any telephone was seized or not is also

not certain.

33. There is nothing on record and there is no

statement of the P.W.10 that the CDR, which was

obtained by him, was of the telephone number which

was registered in the name of the appellant. All that the

I.O. could learn from the telephony company that the Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

mobile set had a sim card of Voda-phone. This

information is not complete in any way. Assuming for

the moment that the telephone of the appellant had

been seized, for proving that such telephone was used

by him for calling the deceased in the night, it was

necessary to have proved the CDR and the CAF which

could only have been proved as a secondary piece of

evidence with necessary certification under Section 65B

of the Indian Evidence Act. Since the seizure memo also

is not on record, it would not be necessary for us to

even go into the question of admissibility of the CDR

when it is not known that the CDR obtained by P.W.10

was of a telephone which belonged to the appellant.

34. Apart from this, we have also found from

the records that on the disclosure of the appellant of the

telephone number belonging to the deceased, some

attempt was made by the I.O. to find out the ownership

of that telephone. The telephone number was found to

be registered in the name of the late father of the Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

deceased. However, when P.W.8 was asked to hand over

the telephone for any further investigation in the matter,

she expressed her complete ignorance about the

existence or ownership of any telephone with any

number whatsoever.

35. This leads to two inferences. The P.W.8

was not truthful in her disclosure and that the

information about the telephone numbers, on the

analysis of which the I.O. has concluded in his

investigation report that it was the appellant who had

called the deceased out of her house and had killed her,

is based on no evidence whatsoever.

36. We have also tried to find out whether the

deceased was a minor in order to attract the mischief of

the provisions contained in Section 29 and 30 of the

POCSO Act, 2012.

37. As rightly argued by the appellant, the

Trial court committed an error by relying upon an Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

unsubstantiated School Leaving Certification which was

part of the case diary in holding that the deceased was a

minor. If the deceased was a minor, there was no reason

for the mother/Informant/P.W.8 to have told the age of

the deceased to be 18 years right in the beginning when

the F.I.R. was lodged. The Doctor conducting the

postmortem has also assessed the age of the deceased

to be 17-18 years.

38. There is no circumstance which could be

the starting point for doubting that the appellant may

have had his hand in killing the deceased. The only

circumstance which appears to have weighed with the

Trial court is that the appellant had been pressurizing

the deceased to marry him and that the deceased was

not to be found in his house after the lodging of the

case. Both the circumstances are not strong enough to

presume the culpability of the appellant.

39. The law regarding the nature and Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

character of proof of circumstantial evidence has been

settled by several authorities of the Supreme Court as

also by this Court. The locus classicus of all the decisions

is Hanumant Vs. The State of Madhya Pradesh, AIR 1952

SC 343 wherein the Supreme Court has clearly

expounded the various concomitants of the proof of a

case based purely on circumstantial evidence.

40. 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 that it must be such as to show that within all

human probability, the act must have been done by the

accused only. This line of reasoning has been followed

continuously till date in Sharad Birdhi Chand Sarda Vs.

State of Maharashtra, AIR 1984 SC 1622; in which the

"Panchsheel" principle has been codified by the

Supreme Court. It says that (i) the primary principle is

that the accused "must be" and not merely "may be"

guilty before a court can convict and the mental distance Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

between "may be" and "must be" is long and divides

vague conjectures from sure conclussions; (ii) the facts

so established should be consistent only with the

hypothesis of the guilt of the accused, i.e. 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 and (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 accused

and must show that in all human probability, the act

must have been done by the accused.

41. We have already discussed and analyzed

that there is no link evidence from the time when the

deceased had gone to sleep in her house along with her

mother till the time that her dead body was recovered

from the graveyard.

Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

42. The questions viz. why did the deceased

come out of the house; on whose asking; whether under

a plan; whether on the asking of the appellant; whether

other persons also accompanied the appellant when the

deceased was in his company; when was she killed;

whether any person saw the act of murder or of the

deceased being thrown in the graveyard, remain

unanswered till date.

43. The attempt of the prosecution to chip in

the story of one of the witnesses seeing the appellant in

the company of the deceased in the night of the

occurrence, does not inspire confidence. Even if it is

taken as a link evidence, the pre and post evidence is

completely missing.

44. The hypothesis of the prosecution is

knocked out from the bottom by the postmortem report

and the deposition of the Doctor, who did not find any

injury on the private parts of the deceased. Even the Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

evidence with respect to throttling is very superficial.

Was she killed in the graveyard or somewhere else and

thrown in the graveyard also remains unknown. With

such deficient evidence, we are in total disagreement

with the opinion rendered by the Trial court in convicting

and sentencing the appellant.

45. We have also not been able to find out any

evidence with respect to the charge under Section

366(A) of the IPC.

46. Per force, we set aside the judgment and

order of conviction of the appellant. The appellant is

acquitted of all the charges.

47. The appeal is allowed.

48. The appellant is in custody. He is directed

to be released from jail forthwith, if he is not required or

detained in any other case.

49. The copy of this judgment shall be Patna High Court CR. APP (DB) No.420 of 2021 dt.30-08-2023

transmitted to the Superintendent of the jail for record

as also for compliance.

50. The Trial court record shall be dispatched

to the court below also.

51. Interlocutory application/s, if any, also

stand disposed off accordingly.

(Ashutosh Kumar, J)

( Alok Kumar Pandey, J) rishi/-

AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          04.09.2023
Transmission Date       04.09.2023