Patna High Court
The State Of Bihar vs Amar Kumar on 18 December, 2023
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
DEATH REFERENCE No.9 of 2021
Arising Out of PS. Case No.-758 Year-2019 Thana- FORBESGANJ District- Araria
======================================================
The State of Bihar.
... ... Petitioner/s
Versus
Amar Kumar, S/O Kishan Lal Das, Resident of Mirjapur Dhattatola, P.S. -
Forbesganj(Simraha), Dist. - Araria, Bihar.
... ... Respondent/s
======================================================
With
CRIMINAL APPEAL (DB) No. 728 of 2021
Arising Out Of Ps. Case No.-758 Year-2019 Thana- Forbesganj District- Araria
======================================================
Amar Kumar, Son of Kishan Lal Das @ Kisundayal Tatma, Resident of
Mirjapur Dhatta Tola, P.S.- Forbesganj (Simraha), District- Araria, Bihar.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In DEATH REFERENCE No. 9 of 2021)
For the Petitioner/s : Mr. Krishna Chandra, Advocate.
For the Respondent/s : Mr. Abhimanyu Sharma, APP.
(In CRIMINAL APPEAL (DB) No. 728 of 2021)
For the Appellant/s : Mr. Krishna Chandra, Advocate.
For the Respondent/s : Mr. Abhimanyu Sharma, APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
2/28
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 18-12-2023
1. The Death Reference No. 9 of 2021
and Criminal Appeal (DB) No. 728 of 2021 have been
heard together and are being disposed off by this
common judgment.
2. We have heard Mr. Krishna Chandra,
learned Advocate for the appellant and Mr. Abhimanyu
Sharma, learned APP for the State.
3. The sole appellant has been convicted
under Sections 302/34, 201/34 and 376DB/34 of the
Indian Penal Code and Section 4 of the Protection of
Children from Sexual Offences Act, 2012, vide
judgment dated 08.10.2021, passed by the learned
Special Judge (POCSO)-cum- Additional District &
Sessions Judge-VI, Araria, in Spl. POCSO Act Case No.
46 of 2019, arising out of Forbeisganj (Simraha) P.S.
Case No. 758 of 2019. On the same day, he has been
sentenced to be hanged by neck till he died. Some
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
3/28
other directions have been issued by the Special
Court/Trial Court, viz., destruction of seized articles, if
any, in due course of law and referring the matter to
D.L.S.A. for granting compensation of Rs.10,00,000/-
to the family of the victim etc.
4. A 12 year old girl is said to have been
gang-raped and then killed and thrown on a road near
a temple, where she along with her grand-mother
(P.W. 1) had gone to witness a fair organized on the
occasion of Nagpanchami festival.
5. The occurrence took place on
05.08.2019
, but the FIR was registered after the dead
body was recovered on 06.08.2019. The dead body
was sent for postmortem examination on the same day.
6. The FIR lodged by P.W. 1, the grand-
mother of the victim/deceased, was registered against
unknown. In the fardbeyan, which was recorded by
Sub-Inspector, D.C. Mishra (not examined), she has
alleged that her grand-daughter, who was residing with
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
her, had accompanied her to the fair but she
disappeared from the fair. A frantic search was made
but to no avail. On 06.08.2019, the grandson of the
brother of P.W. 1 informed her that the dead body of
the victim was lying on the road near the temple. The
dead body was buck naked. She accompanied by her
husband (P.W. 2) went to the place where the dead
body was lying and identified it to be of her grand-
daughter.
7. It appeared to her that some unknown
persons had molested and killed her. There were blood
drops below her waist. The local mukhiya informed
about the occurrence to the local administration when
the police party arrived and started the investigation.
The dead body was seized and was sent for post-
mortem examination.
8. On the basis of the afore-noted
fardbeyan statement of P.W. 1, Forbeisganj (Simraha)
P.S. Case No. 758 of 2019, dated 06.08.2019 was
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
instituted for the offences under Sections 302, 201,
354A, 34 of the IPC and Section 8 of the POCSO Act,
2012 against unknown.
9. The police after investigation submitted
charge-sheet against the appellant, who was charged
for the offences under Sections 302, 376D, 201/34 of
the IPC and Section 4 of the POCSO Act, 2012 and
was tried by the Special POCSO Court.
10. The Trial Court, after having examined
13 witnesses on behalf of the prosecution and none on
behalf of the defence, convicted and sentenced the
appellant as aforesaid.
11. We must, at the outset, express our
dissatisfaction with the manner in which the Special
Court has handled the case and has convicted and
sentenced the appellant to death without caring for the
basic principles of the law.
12. It would be necessary first to refer to
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
the circumstance under which the appellant was
arrested and then subjected to trial. At the place where
the dead body was found, a tracker sniffer dog was
brought, who first smelt the dead body and then moved
into a villager's house. Since, nothing incriminating was
found there, the tracking dog next entered the house of
the appellant. The appellant was arrested in his house.
13. Though the Trial Court has listed the
evidence of the appellant having closed himself inside a
room, which was locked from outside as one of the
circumstances against him, but there is no evidence
whatsoever of the door having been broken open for
arresting the appellant. Thus, for all practical purposes,
the only girdle on which the prosecution has rested its
case is the sniffer dogs tracking trajectory.
14. Be it noted that there is nothing on
record to get any idea about the skills of the dog used
for tracking or of the handler who had trained the
canine. This is what is troubling us that without
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
assessing the probative value of the materials, death
sentence has been awarded by the Trial Court.
15. To cut the long story short, four pairs
of slippers were located at the place where the dead
body was recovered. A purse and a chain also was
found at that place. The investigating agency jumped
to the conclusion that one of the slippers was of the
appellant. From the house of the appellant, a pair of
soiled jeans of cream color is also said to have been
recovered, which surprisingly was never sent for any
forensic examination.
16. We also do not find any record of the
appellant having been put to medical test under Section
53A of the Code of Criminal Procedure. May be for
these reasons, the appellant was granted bail during
the investigation by the High Court.
17. The circumstances which have been
listed by the Trial Court for establishing the connecting
link to the offence and forging the chain, which in the
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
opinion of the Court was complete in itself, are that :
(a) the victim had gone to see the fair with her grand-
mother, where the accused also was present and whose
presence has been confirmed by P.W. 1, which was
never rebutted; (b) the pair of slippers of the appellant
was found near the dead body (material Exhibit- 1 to
1/4); (c) blood was spotted by P.W. 1 and few of the
other witnesses on the lower part of the body of the
victim; (d) from the house of the appellant, soiled
clothes were recovered, which pair of jeans he had
been wearing at the time of the occurrence and lastly;
(e) that the appellant was found locked inside his house
and the door had to be forced open for arresting him.
18. All this began when the sniffer dog
entered the house of the appellant.
19. The circumstances listed by the Trial
Court are either no circumstance in the eyes of law or
are factually incorrect.
20. That the victim had gone to see the fair
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
with her grand-mother (P.W. 1) is no circumstance
which could be treated as incriminating against the
appellant by any standard of judgment. There is
nothing on record to prove that the slipper found near
the dead body (four pairs of slippers were found)
belonged to the appellant or that the appellant had
worn them on the day of the occurrence.
21. With respect to blood on the body of
the deceased, the medical evidence does not support
such contention. Only P.W. 1 at the time of giving her
fardbeyan had disclosed that she could spot droplets of
blood on the lower part of the body of the victim. There
is no reference of any blood spots on the body in the
inquest report prepared at the place where the dead
body was found.
22. With respect to recovery of the soiled
pair of jeans, the Trial Court perhaps forgot that it was
not identified or confirmed by anybody that it was the
same dress which the appellant had worn to the fair
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
and the seized pair of jeans were never sent for any
forensic examination. In fact, one of the witnesses to
the seizure list has specifically stated that only the
appellant was arrested from his house after the sniffer
dog had entered, but nothing else was recovered from
that place. The witnesses to the seizure have, in
unison, stated that they had signed on a plain piece of
paper.
23. How and under what circumstances
then the Trial Court has listed the afore-noted
circumstances as forging links in coming to the finding
of the guilt of the appellant completely eludes us. The
materials on which the Trial Court has based his
judgment, appear to be factually incorrect.
24. We deem it appropriate in this context
to first examine the post-mortem report and the
deposition of Dr. Pravin Kumar (P.W. 11), who had
conducted post-mortem examination. The post-mortem
examination began at 10:17 P.M. on 06.08.2019. The
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
Doctor has found the entire body to be swollen. The
foreskin of the left hand was found to be completely
scaled-off because of decomposition. There were no
internal abnormalities detected; rather every organ was
intact/in-situ. The viscera was preserved as no reason
could be detected for the death of the deceased.
25. In the post-mortem report, the Doctor
has specifically stated that no definite opinion could be
given regarding the cause of death. The time elapsed
since death and the post-mortem examination was
assessed to be within 72 hours. Perhaps, the Doctor
(P.W. 11) gave a big window for the prosecution to
adjust its facts and timings. But then, the very fact
that there is no mention of any examination of genitalia
of the victim leads to an inference that perhaps it was
not the dead body of the victim of this case which was
subjected to post-mortem examination. We say so for
the reasons that normally in a case of suspected rape/
rape, the first and foremost effort of the Doctor is to
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
examine the genitals. No injury was found on the entire
body of the deceased. The occurrence, if the reporting
of P.W. 1 is accepted to be correct, would have taken
place sometimes between the time that the deceased
disappeared and the time when the dead body was
recovered and subjected to the post-mortem
examination. Not even thirty hours would have passed
by. Despite this, the Doctor has found that
decomposition had started. He had surprisingly not
found any blood or any injury over any part of the
body.
26. To place it in the context, we have also
examined the forensic report of the viscera of the
deceased. No metallic, alkaloidal, glycosidal, pesticidal
or volatile poison could be detected in the contents of
the sample sent to the laboratory.
27. What then was the cause of death?
28. There is no evidence of any rape.
29. True it is that medical evidence of rape
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
is not all that necessary, provided there are other
evidence. Admittedly, nobody had seen the occurrence
nor had anybody seen the appellant taking away the
victim. The victim had disappeared before the eyes of
P.W. 1. She has alleged that while she was trying to lay
a mattress on the floor of the temple, the victim had
disappeared. She was not to be found in the vicinity.
30. Under such circumstances, complete
absence of any evidence of molestation or rape sends us
doubting whether it was the same body which was
treated as corpus delicti of the case. There is another
reason for us to think on these terms.
31. A deeper scrutiny of the deposition of
P.W. 11 would disclose that he had not received any
requisition for conducting post-mortem examination. The
dead body was produced before him in a sealed cover
but with no identification with respect to the deceased.
Later, P.W. 11 corrected himself and said that the body
was not sealed but was brought in open. There were no
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
injuries over the external body of the deceased nor was
there any sign of rape which he could notice. He found
rigor-mortis which would have been 24 hours old. He, as
noted above, did not find the exact reason of death.
32. Who had then identified the dead body
before the Doctor for it to be subjected to post-mortem
examination?
33. That P.W. 1 and others saw the dead
body and identified it to be of the deceased, is the
assertion of the police for closing the investigation by
relying solely on the evidence of the sniffer dog.
34. The Trial Court appears to have gone
along side and believed the story to be true.
35. The appellant is said to have confessed
his guilt. This story of confession also does not appear to
be true for the reason that the appellant was arrested
from his house and his confession was recorded before a
B.D.O., whose name though has been disclosed in the
investigation, but there is no any emblem of the
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
authority of the B.D.O. is present on the record.
36. Who would believe such story of the
prosecution that he had confessed his guilt? Perhaps the
Trial Court did and also relied upon the materials which
were narrated in the so-called confession.
37. We again remind ourselves, while
dealing with a judgment of this kind, that dead body had
already been recovered and the services of the sniffer
dog was employed thereafter. Perhaps the Trial Court
completely lost sight of the fact that an investigating
agency could undertake the service of a sniffer tracker
dog and rely upon the canine faculties for the dog having
forayed into the house of the appellant. But this exercise
cannot be the anchorage point for judicial dispensation.
The judicial dispensation can ill-afford such heavy
reliance on the expertise of a sniffer dog, about whose
skill, nothing is known; nor is there any evidence of it
having been trained appropriately.
38. Did the Trial Court take it as an expert
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
evidence even in the absence of the handler of such dog
having been brought to the witness-stand for his
statement to qualify under Section 45 of the Indian
Evidence Act, 1872?
39. We fail to understand as to how the
Trial Court proceeded in the same manner as the
investigation had proceeded, on the presumption that
the dog would never have faulted in entering the house
of the appellant. There is evidence of the dog having
entered another person's house also. We, for the
present, do not say that help of a sniffer dog cannot be
taken by the police. Animal science tells us that the dogs
can be very proficient if they are trained properly. The
advantage with them as compared to the humans is of
their possessing a very sharp olfactory sense which could
help trace the offender. But this cannot be an evidence,
much less strong evidence unless the Court examines
the reliability of the dog skills, its past patterns of
performance or its handler's capabilities. It cannot ever
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
be taken as a reliable pointer towards the commission of
an offence at the hands of an offender.
40. Precisely for this reason, the Supreme
Court in Abdul Rajak Murtaja Dafedar vs. State Of
Maharashtra AIR 1970 SC 283 has laid two objections
against the reception of dog tracking evidence. The first
is that the dog cannot take an oath and submit itself for
cross-examination; however, its handler can go to the
witness-stand and give his evidence which would but
only be a hearsay evidence. Secondly, if it is received as
an evidence in Courts of Law, then there would be a
feeling that the liberty of a human being is being held
ransom to the inferences made by a canine because of
its olfactory sharpness.
41. Thus, even if it could be the starting
point for the police to begin its investigation, it cannot be
received as an evidence so strong as for the Trial Court
not to need any corroborative evidence.
42. Let us then test the evidence adduced
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
at the Trial.
43. The grand-mother of the victim (P.W.
1) somehow or the other tried to improve upon her
version by stating before the Trial Court that four boys
were in the vicinity of the deceased in the temple
premises where the fair was held. She had gone to the
extent of alleging, without there being any investigation
on this aspect of the matter, that it was the appellant
who had organized the fair. However, in her exuberance,
she forgot what she had stated in her fardbeyan. In her
fardbeyan, she had claimed to have seen the dead body
as also the blood spots on the lower portion of the body.
But at the Trial, she has claimed that no sooner was she
informed about the dead body lying on the road, she ran
back home and informed the guardian of the house.
However, she admitted that against the appellant, there
was no case from before.
44. Her husband (P.W. 2) though does not
claim to have ever visited the fair but has identified one
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
pair of sandles to be belonging to the appellant. He was
questioned and rightly so whether there could be only
one such pair of slippers, to which he answered in the
negative. He had disclosed before the Trial Court that
the sniffer dog did not go to any other place and that the
purse, slippers and the chain were not recovered in his
presence.
45. One of the maternal uncles of the
deceased (P.W. 4) has also confirmed that except for
arresting the appellant from his house, nothing else was
recovered. He was made to sign on a blank piece of
paper and what was inscribed on it was not known to
him.
46. Dayanand @ Dayanand Sharma (P.W.
5) did not support the prosecution version with respect
to recovery.
47. Rajesh Kumar Mehta (P.W. 6) had seen
the sniffer dog entering the house of one Nago Das,
where nothing incriminating was found. It was only
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
thereafter that the dog entered the appellant's house
where the appellant was found to be locked inside a
room. Despite protest by the mother of the appellant,
the lock was broken. However, no paper was prepared
with respect to breaking of the locks.
48. Kanhiya Kumar Das (P.W. 9), one of
the witnesses to the seizure list, has grieved that he was
made to sign on a blank piece of paper on the asking of
the police. He is one of the members of the committee
which had organized the fair.
49. The Investigator of this case has been
examined as P.W. 10. He has admitted of not having
recorded the fardbeyan or having prepared the inquest
report. It was in his presence but that the fardbeyan was
recorded. He had recorded the confession of the
appellant in presence of the B.D.O. of Forbesganj, who
though had signed the confession but has not put his
official emblem in token of his having signed. No
description was given by him in the charge-sheet of the
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
seized articles.
50. The seizure list was prepared by one
D.C. Mishra, who has not been examined. The other
seizure list was prepared by one M.A. Haidri of Simraha
Police Station but the Investigator had no idea as to the
context, as also the case in which that seizure list was
prepared. Even the original copy of the post-mortem was
not available in the Court. He had not stated about the
dog having gone in the house of the appellant.
51. We have already examined the
deposition of the Doctor who conducted the post-mortem
examination.
52. This takes us to the statement of the
appellant recorded under Section 313 of the Cr.P.C. It
need not again be reiterated that in every inquiry or
trial, for the purposes of enabling the accused personally
to explain away the circumstance appearing in evidence
against him, the Trial Court could, at any stage, without
previously warning the accused, put such questions to
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
him as it would consider necessary; and shall after the
witnesses for the prosecution have been examined and
before the accused is called on for his defence, question
him generally on the case.
(emphasis provided)
53. It is now well settled and apodictic that
a Trial Court cannot ignore or avoid putting all the
incriminating circumstances to an accused for knowing
his response.
54. It appears very clear to us that all the
circumstances which were relied upon by the Trial Court
for holding the appellant guilty, were not put to him and
the answers given by him to some of the circumstances,
have not at all been taken into consideration.
55. None of the circumstances so put to the
appellant have been proved at the Trial.
56. We have already noted that there are
doubts about the recovery of the wearing apparel of the
appellant and even if it were, it was never sent for any
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
forensic examination.
57. The mandate of Section 53A of the
Cr.P.C. has been completely flouted.
58. Though, obedience to the mandate to
Section 53A may not be mandatory (Rajendra
Prahladrao Wasnik vs. The State Of Maharashtra
(2019) 12 SCC 460) but in the same decision, the
Supreme Court has held that there must be reasonable
grounds for believing that the examination of a person
will afford evidence as to the commission of an offence
of rape or an attempt to commit rape before taking any
decision of not examining the accused of the crime
medically. If reasonable grounds exist, then a medical
examination as postulated by Section 53A (2) of the
Cr.P.C. must be conducted and that includes
examination of the accused and the description of
materials taken from the person of the accused for DNA
profiling.
59. Is it that the charge of rape was not in
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
existence when the appellant was arrested? What could,
then, be the reason for the Doctor not examining the
genitals of the deceased who was only a 12 year old girl
and was alleged to have been gang-raped by many
persons.
60. We, thus, hold that the Trial Court
completely ignored the observations of the Supreme
Court in Gade Lakshmi Mangraju @ Ramesh vs
State Of Andhra Pradesh (2001) 6 SCC 205 that
there are inherent frailties in the evidence based on
sniffer or tracker dogs. The possibility of an error on the
part of the dog or its master is the first amongst them.
The possibility of a mis-representation or a wrong
inference from the behaviour of the dog also cannot be
ruled out. From a scientific point of view, there is little
knowledge and much uncertainty as to the precise
faculties which enable the police dogs to track and
identify criminals.
61. So far as the response of the appellant,
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
which has been cited as an instance of "guilty mind" by
the Trial Court is concerned, we have already noted that
the claim of the prosecution that the deceased was
locked inside a room, could not be proved. Even if the
appellant were found inside the room, it would be
absolutely naive to give any hard and fast rule having
any universal application, with regard to reaction of a
person in a given circumstance. The reaction differs from
humans to humans. A person may loose his equilibrium
and balance of mind but another may remain a silent
spectator till he is able to reconcile himself and then
react in his own way.
62. We have, thus, found that the Trial
Court has only given a lip service to the panchsheel
principle of circumstantial evidence as enunciated in
Sharad Birdhi Chand Sarda vs. State Of Maharashtra
(1984) 4 SCC 116 where it has been conclusively held
that for arriving at a finding with respect to the guilt of
the accused, it must be established that:
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
(I) the circumstances from which the
conclusion of guilt is to be drawn is fully established;
(II) the facts so established should be
consistent only with the hypothesis of the guilt of the
accused and should not be explainable on any other
hypothesis except that the accused is guilty;
(III) the circumstances should be of a
conclusive nature;
(IV) 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
on preponderance of probability.
63. The Trial Court, as we have observed,
somehow or the other has used disputed issues of fact,
completely unproved, as beacon light for him to come to
the finding of the guilt of the appellant.
64. We say no further.
65. With this evidence, we find the
conviction of the appellant under any one of the Sections
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
of the IPC or of the POCSO Act, 2012 to be highly
unjustified in law.
66. For this reason, we have not delved into
the aggravating and mitigating circumstances noted
down by the Trial Court, for affording the appellant,
death sentence.
67. For the reasons afore-noted, we set
aside the judgment and order of conviction and sentence
of the appellants and acquit the appellant of the charges
levelled against him.
68. The reference is dismissed.
69. The appeal stands allowed.
70. It is informed by the learned Advocate
that the appellant is in jail. He is directed to be released
forthwith from jail, if not detained or wanted in any
other case.
71. Let a copy of this judgment be
dispatched to the Superintendent of the concerned Jail
forthwith for compliance and record.
Patna High Court D. REF. No.9 of 2021 dt.18-12-2023
72. The records of this case be returned to
the Trial Court forthwith.
73. Interlocutory application/s, if any, also
stand disposed off accordingly.
(Ashutosh Kumar, J)
(Alok Kumar Pandey, J)
Sauravkrsinha/
manoj-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 20.12.2023
Transmission Date 20.12.2023
