Md. Rehan vs The State Of Bihar
2023 Latest Caselaw 2647 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.1058 of 2016
      Arising Out of PS. Case No.-15 Year-2014 Thana- DAGARUA District- Purnia
======================================================

Md. Rehan S/o Md. Nazir resident of Village- Sakrail, P.S.- Dagarua, Dist- Purnea.

... ... Appellant Versus The State Of Bihar ... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 482 of 2016 Arising Out of PS. Case No.-15 Year-2014 Thana- DAGARUA District- Purnia ====================================================== Md. Azaz @ Babo S/o Abbas Resident of village- Sakrail, P.S.- Dagarua, District- Purnea.

... ... Appellant Versus The State Of Bihar ... ... Respondent

Appearance :

(In CRIMINAL APPEAL (DB) No. 1058 of 2016)
For the Appellant       :        Mr. B.D. Singh, Advocate
                                 Mr. Kumar Parveen, Advocate
For the Respondent      :        Mr. Abhimanyu Sharma, APP


(In CRIMINAL APPEAL (DB) No. 482 of 2016)
For the Appellant       :        Mr. B.D. Singh, Advocate
                                 Mr. Kumar Parveen, Advocate
For the Respondent      :        Mr. Abhimanyu Sharma, APP


CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
                  and

HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 22-06-2023

Both the criminal appeals arise out of common judgment

of conviction dated 31.03.2016 and order of sentence dated Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

04.04.2016, hence after being heard together, they are being

disposed of by a common judgment.

2. By the judgment of conviction dated 31.03.2016 and

order of sentence dated 04.04.2016 passed by Sri Satyendra

Rajak, 1st Addl. Sessions Judge-cum-Special Judge, Purnea in

Session Trial No. 03 of 2014, CIS No. 08/2014 arising out of

Dagarua P.S. case No. 15/2014, the appellants namely Md.

Rehan (appellant in Cr. Appeal (DB) No. 1058 of 2016) and Md.

Azaz @ Babo (appellant in Cr. Appeal (DB) No. 482 of 2016)

have been convicted for offence punishable under sections

376D, 302, 201 of Indian Penal Code (hereinafter referred to as

'I.P.C.') and Sections 4 and 6 of POCSO Act, 2012 and have

been sentenced to undergo rigorous imprisonment for life under

Sections 376D, 302 and 201 of I.P.C. and a fine of Rs. one lakh,

one lakh and Rs. 10,000/- each respectively. The appellants have

further been sentenced to undergo rigorous imprisonment for life

under sections 4 and 6 of the POCSO Act and a fine of Rs.

10,000/- and 30,000/- each respectively with further direction

that all the sentences awarded to both the appellants have been

directed to run concurrently.

3. The prosecution case, as per the fardbeyan of informant

Md. Wasik recorded by S.I. Rakesh Prasad of Dagarua Police Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

Station on 27.01.2014 at 09.45 a.m. at his house is that on

26.01.2014 at 06.00 p.m., when the informant did not find his

daughter namely Sufiyana @ Sofa Pravin at his house then he

and his family members started searching her in the nearby areas

and also inquired about her from the relatives, but he has not

been able to find her and as such, they returned home. In the

morning of 27.01.2014 (wrongly written in F.I.R. as 27.01.2013),

when the informant and family members again went in search of

the victim, a fisherman namely Sahdeo Mahaldar came near the

Sakrail Primary School and told informant's mother that the

dead body of a girl is lying in Purpuria ditch of Manen river.

Upon reaching at the spot, the informant's mother saw that the

dead body of informant's daughter Sufiyana Pravin @ Sofa was

lying and blood was found in her pajama. Thereafter, the dead

body of the informant's daughter was brought to the house by

the mother with the help of informant's uncle and nephew. The

informant also joined them on the way. It has further been stated

that upon reaching home, mother of the informant saw that blood

was coming from private part of the deceased girl in which a

piece of lungi measuring 6 inch was tied. Thereafter, information

was given to the police and the police reached there. The

informant suspected that some unknown persons murdered her Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

daughter after committing rape and threw the dead body near the

Purpuria ditch. On the basis of fardbeyan of the informant,

Dagarua P.S. case No. 15/2014 dated 27.01.2014 was registered

under Sections 376, 302, 201/34 of the I.P.C. and Section 4 of the

POCSO Act.

4. After registration of F.I.R., investigation was

conducted by the police and upon completion of investigation,

charge-sheet was submitted against both the appellants under

Sections 376, 302, 201/34 of I.P.C. and Section 4 of POCSO

Act. The cognizance of the offence was taken by the learned

jurisdictional Magistrate and thereafter the case was committed

to the Court of Sessions. Charges were framed against the

accused persons who pleaded not guilty and claimed to be tried.

5. During the trial, in order to substantiate the charges

against the accused persons, the prosecution examined as many

as eighteen witnesses, namely, P.W.-1 Md. Zakir, P.W.2

Noorjahan (grandmother of the victim), P.W.3 Md. Wasik, P.W. 4

Md. Younus, P.W. 5 Ansari Khatoon (mother of the victim), P.W.

6 Sheikh Manglu @ Akimuddin, P.W. 7 Ashok Sharma, P.W. 8

Chand Ali @ Chano, P.W. 9 Anil Sah @ Chunna P.W. 10 Dr.

Vinay Mohan (doctor who conducted post mortem), P.W. 11Md.

Rakib, P.W. 12 Md. Rizwan Alam, P.W. 13 Md. Wasik, P.W. 14 Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

Dr. Sudhanshu Kumar, P.W. 15 Dr. Sushila Das, P.W. 16 Zubair

Ahmad Khan(I.O.), P.W. 17. Md. Tahir, P.W. 18 Zakir @

Zakiruddin. The prosecution has also produced exhibits namely

Ext. 1 Post Mortem report, Ext. 1/1 signature of Dr. Sushila Das

on post mortem report by Dr. Binay Mohan., Ext. ½ signature of

Dr. Sudhanshu Kumar on post mortem report by Dr. Binay

Mohan, Ext. 2 signature of witness Md. Rakib on the seizure

list dated 27.1.2014, Ext. 2/1 and 2/2 signatures of witnesses

Tahir Hussain and Jahiruddin on the seizure list dated 31.1.2014,

Ext. 3 signature of informant Md. Wasik on the fardbeyan, Ext. 4

seizure of piece of blood stained lungi on 31.1.2014 from the

house of Md. Rehan, Ext. 4/1 seizure of blood stained pajama of

the deceased and piece of lungi which was covered on the private

part of the deceased on 31.1.2014, Ext. 5 and 5/1 Memo of arrest,

Ext. 6 Charge-sheet of Dagarua P.S. case No. 15/2014, Ext. 7

formal F.I.R. of Dagarua P.S. case No. 15/2014, Ext. 8

fardbeyan of informant Md. Wasik in the writing of S.I. Rakesh

Kumar. Ext. 9 pagination on fardbeyan, Ext. 10 inquest report of

victim-cum-deceased Sofa Pravin, Ext. 11 F.S.L. report of

Forensic Science Laboratory, Patna. The defence has not

produced any witness in support of its defence. However, the

defence has produced exhibits such as Ext. A document of Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

original sale deed dated 9.3.1977, Ext. A/1 certified copy of sale

deed dated 26.2.2013 and Ext. B death certificate of Jahiruddin.

Thereafter, the statements of the appellants were recorded under

section 313 of the Code of Criminal Procedure, 1973 (hereinafter

referred to as 'Cr.P.C') and after conclusion of the trial, the

learned trial Court convicted the appellants.

6. Learned counsel for the appellants has submitted that

the judgment of conviction suffers from several infirmities that

have been overlooked by the learned trial Court and therefore,

the impugned judgment is not sustainable in the eyes of law. It

has been contended that there is sharp inconsistency in the

testimony of the prosecution witnesses as regards the time from

when the victim had been missing. In order to buttress this

contention, the attention of this Court has been drawn towards

the deposition of P.W. 2 and P.W. 5. It has further been contended

that the time gap since the victim went missing and the recovery

of her dead body is too long to apply the 'last seen theory'. It has

been pointed out that the P.W. 12 has specifically deposed during

the course of trial that that he along with the appellants and

others were playing cricket till 05:00 pm and thereafter, they

played carom for around one hour. The learned counsel for the

appellants has further contended that the description of articles Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

mentioned in the seizure list do not tally with the description of

articles contained in the FSL report (Ext. 11) and hence, the FSL

report becomes doubtful and it cannot be relied upon. It has also

been pointed out that the seizure witnesses have denied any

search or seizure being made in their presence and they have still

not been declared hostile. Furthermore, no independent witness

has supported the case of the prosecution. Also, there is severe

doubt as to the place of occurrence and even the Investigating

Officer has not recorded the statement of one Sahdeo Mahaldar ,

i.e. the person who first saw the dead body of the victim lying

near the ditch. The said Sahdeo Mahaldar would have been the

most competent witness to testify regarding the circumstances in

which the victim's dead body was found. It has been asserted that

the P.W. 13 (informant) had made no such statement in the F.I.R.

that the victim along with P.W. 2 and P.W. 5 visited the house of

the appellants. Rather the appellants have been implicated in this

case at a subsequent stage after deliberations and planning.

Furthermore, there is non-compliance of Section 53A of the

Cr.P.C. As such, it has been contended that there are severe

lacuna in case of the prosecution and the chain of circumstances

do not unerringly point towards the guilt of the appellants.

Therefore, it is argued that the findings of the learned trial Court Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

are bad in law, wrong on facts, bereft of legal reasoning, devoid

of merit and the judgment of conviction is fit to be set aside.

7. Learned APP for the State, on the other hand, has

submitted that the judgment of conviction and order of sentence

under challenge require no interference as the prosecution has

proved the case beyond all reasonable doubts. It has been

asserted that minor inconsistencies in the testimony of the

witnesses cannot be a ground to reject their evidence as a whole.

It has been further pointed out that the blood stains found on the

piece of lungi wrapped around the private part of the victim

match with the blood stains found on the lungi seized from the

house of the appellants. Furthermore, it were the appellants who

were last seen together with the appellants and as such, the

circumstances unerringly point towards the guilt of the

appellants. There does not remain any hiatus in the chain of

circumstances and the guilt of the appellants has been

satisfactorily proved by the evidences adduced during the course

of trial and hence, there is no infirmity in the judgment of

conviction of the learned trial Court.

8. After hearing the arguments advanced by the learned

counsels appearing for the parties and upon thorough Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

examination of the entire material available on the record, the

following issues arise for consideration in the present appeal:

(I) Whether the prosecution has been able to establish

the 'last seen theory' so as to sustain conviction of the

appellants?

(II) Whether the description of articles seized from the

house of the appellants tally with the description of

articles given in the F.S.L. report so as to establish the

missing causative link?

(III) Whether the additional facts and subsequent

statements made during the course of trial by the

informant (P.W.13), the victim's grandmother (P.W. 2)

and victim's mother (P.W. 5) can be relied upon in light

of the statement made in the First Information Report?

(IV) Whether non-compliance of Section 53A of Cr.P.C.

is fatal for the case of the prosecution?

9. With reference to issue no. I, upon perusal of the entire material

available on the record, it is found that there are severe

inconsistencies and contradictions in the testimony of the

prosecution witnesses regarding the time from which the victim is

alleged to have been missing. It is found that P.W. 5 had specifically

deposed that she, along with the victim and her mother-in-law (P.W. Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

2), had gone to the house of the appellants on 26.01.2014 at around

04:00 pm in order to meet the appellants' grandfather, who was not

keeping well with his health. There, the P.W. 5 saw the appellants

giving chocolates and biscuits to the victim at the verandah of the

said house. However, when the P.W. 2 and P.W. 5 came outside the

house, they found the victim and the appellants missing from the

verandah. In sharp contradiction to such testimony of P.W. 5, it has

been deposed by P.W. 2 that the victim has been missing since

26.01.2014 from 6 o'clock in the morning. Thus, it is found that

there is severe inconsistency in the testimony of the P.W. 2 and P.W.

5 as to the timings from when the victim girl was missing.

Furthermore, it has been found that the dead body of the victim was

discovered from a public place on 27.01.2014 in the morning near

Pudpudiya ditch alongside the river by one Sahdeo Mahaldar. As

such, even considering the testimony of P.W. 5 to be true on its face

value, the shortest time gap since the victim went missing (since

26.01.2014 at about 04:00 pm) and the consequent recovery of her

dead body from a public place (in the morning of 27.01.2014) is too

wide to apply the last seen theory in the present case. Moreover, the

prosecution's contention of the last seen theory gets further

hammered in light of the testimony of P.W. 12, who deposed in para

no. 2 that the appellants were playing cricket along with him and Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

others till 05:00 p.m. on 26.01.2014 and thereafter, they went to play

carom for about one hour. As such, the prosecution's contention

about the victim being last seen together with the appellants on

26.01.2014 at 04:00 p.m. becomes doubtful and does not inspire

confidence of this Court. It is well settled legal position that in order

to bring home the charges on ground of 'last seen theory', the

prosecution has the onus to prove that the time gap since the victim

was last seen together with the accused and the subsequent recovery

of her dead body is so less that there is no possibility of intervention

by any third person. Though no straight jacket formula can be

devised in such cases to determine as to what will be considered a

reasonable time, but it should be established in light of the facts and

circumstances of the case that the chain of circumstances is so

proximately connected that the possibility of intervention by any

other individual within the time frame is ruled out in entirety. In this

regard, it would be relevant to refer to the decision of Bodhraj vs.

State of J&K reported in (2002) 8 SCC 45 wherein in paragraph 31,

it was held as under:

"31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.

Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."

In light of the factual matrix of the case and considering the

legal position as indicated above, we are of the considered opinion

that there is absence of sufficient material to apply the 'last seen

theory' in the present case.

Accordingly, the issue no. I is decided in the negative.

10. With reference to issue no. II, the attention of this Court

has been drawn towards the mismatch between the FSL report (Ext.

11) and the seizure lists (Ext. 4/1 & Ext. 4). It is found upon perusal

of the Ext. 11 that the F.S.L. report contains findings about two

different pieces of lungis, one being a piece of blue checked lungi

and the other being a piece of green checked lungi. The blood stains

found on both the lungis are of the same blood group. However, in

sharp contrast, it is found upon perusal of the Ext.- 4/1 & Ext. 4 that

the police had made seizure of only 'blue lungis'. As such, it is

evident that the description of articles seized by the Investigating

Officer during the course of trial do not tally with the description of Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

articles mentioned in the F.S.L. report. Rather, the F.S.L. report

contains findings with regard to articles which were neither seized

nor sent for examination in this case. We have also taken into

consideration that the P.W. 17 and P.W. 18, who are the seizure

witnesses in the case have denied any search or seizure being made

in their presence and have contended that their signatures were

taken on plain papers. Nonetheless, these prosecution witnesses

have not been declared hostile.

In light of the facts and circumstances of the case as

discussed above, we are of the firm view that the mismatch between

the F.S.L. report and the seizure lists causes a major dent on the

story of the prosecution. Placing reliance on such document to

uphold conviction of the appellants would amount constructing an

edifice resting on pillars supporting other structures.

Accordingly, the issue no. II is decided in the negative.

11. With reference to issue no. III, it is found that the F.I.R. in

the present case has been lodged by P.W. 13 (father of the victim),

who on 26.01.2014 itself was well aware about his daughter being

missing. It is also found that the P.W. 13 has specifically deposed in

para no. 4 that P.W. 2 and P.W. 5 had informed him that they along

with the victim went to house of the appellant Rehan to visit his

ailing grandfather and over there, the appellants offered chocolates Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

and biscuits to the victim and played with the victim. However, the

informant has not made any statement about such course of events

in the F.I.R. It is found that neither did the informant raised any iota

of doubt against the appellants in the F.I.R. nor did he make any

whisper against them even in any far-fetched manner. In light of the

prevailing circumstances, we find that there was no reason for the

informant to remain silent regarding such material particulars at the

time of lodging of F.I.R., which is the very basis of the entire case.

As such, in light of the facts hereinbefore indicated, the subsequent

statements made by the informant (P.W. 13), P.W. 2 and P.W. 5

tantamount to material improvements and vital contradictions. At

this juncture, it would be pertinent to take note of the decision of the

Hon'ble Supreme Court passed in the case of Sunil Kumar

Sambhudayal Gupta and Ors. versus State of Maharashtra

reported in (2010) 13 SCC 657, wherein para nos. 31 and 37, it has

been observed that:

"Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the Court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence ... ... The omissions which amount to contradictions in material particulars i.e. go the Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

roots of the case/materially affect the trial or core of the prosecution case, render the testimony of the witness liable to be discredited."

In light of the facts and circumstances of the case and

considering the legal position as discussed above, the issue no. III is

decided in the negative.

12. With reference to issue no. IV, it is found upon thorough

examination of the entire material available on the record that there

is failure on part of the prosecution to subject the appellants to

medical examination, as provided under section 53A of Cr.P.C. It is

also found that the Investigating Officer of the case (P.W. 16) has

categorically stated in para no. 31 of his deposition that he did not

subject the appellants to medical examination. At this juncture, it

would be relevant to take note of the case of Rajendra Pralhadreo

Wasnik versus State of Maharashtra reported in (2019) 12 SC 460,

wherein it has been observed by the Hon'ble Apex Court that the

prosecution would be well advised to take advantage of section 53A

of Cr.P.C. where reasonable grounds exist to believe that medical

examination will afford sufficient evidence. It has also been

observed in the case of Krishna Kumar Mallick versus State of

Haryana reported in (2011) 7 SCC 130 that after the incorporation

of section 53A of Cr.P.C, it becomes necessary for the prosecution to Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

conduct medical examination as it would facilitate the prosecution

to prove its case against the accused. Furthermore, three judges

Bench of the Hon'ble Supreme Court in the case of Chotkau versus

State of Uttar Pradesh reported in 2022 SCC OnLine SC 1313 in

para no. 80 has observed that failure of the prosecution to subject

the appellant to medical examination under Section 53A of Cr.P.C is

certainly fatal for the prosecution's case especially when the ocular

evidence is found to be not trustworthy. We have also taken note of

the recent judgment of the Hon'ble Supreme Court passed in the

case of Prakash Nishad @ Kewat Zinak Nishad versus State of

Maharashtra passed in Criminal Appeal no. 1636-1637 of 2023

vide judgment dated 19.05.2023 wherein it was observed that

medical examination of the appellant under Section 53A of Cr.P.C

would enable the Court to ascertain the involvement of appellants

and where there is failure to subject the appellants to medical

examination, it would create a gap in the chain of circumstances.

Accordingly, the issue no. IV is decided in the affirmative.

13. Every trial is a voyage of discovery in which truth is the

ultimate quest. In the present case, on the basis of the discussions

made above, we are of the considered opinion that there are severe

discrepancies and material contradictions in the testimony of the

prosecution witnesses and their testimony cannot be relied upon to Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

form the sole basis of conviction. Moreover, the time gap since the

victim went missing and recovery of her dead body from a public

place is too long and hence, the last seen together theory is not

applicable in this case. It has also been found that there is a

mismatch between the articles seized by the Investigating Officer

and the articles sent for examination by the Forensic Science

Laboratory. Additionally, the seizure witnesses denying any search

and seizure having been made in their presence gives another blow

to the case of the prosecution. We have also taken note that the

Investigating Officer has not stated as to whether he found any

footprints or any blood mark at the spot from where the dead body

was recovered and as such, the place of occurrence is also doubtful.

The prosecution has also failed in complying with the mandate of

Section 53A of Cr.P.C. We find it pertinent to emphasize at this

juncture that the procedural requirements of Cr.P.C. cannot be taken

to be mere procedural formalities. Rather, they are the procedural

safeguards provided in the justice delivery mechanism in order to

prevent excesses by the State machinery. Non-compliance of such

procedural requirements per se amounts to failure of justice. As

such, there is complete absence of any material to establish the

missing causative link to hold the appellants guilty. There are

yawning gaps in the chain of circumstances and the prosecution has Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

failed to elevate the case from the realm of 'may be true' to 'must be

true' as is the requirement set out by the Hon'ble Supreme Court in

the case of Santosh @ Bhure versus State (G.N.C.T) of Delhi,

reported in Criminal Appeal No. 575 of 2011. The prosecution has

miserably failed to adduce sufficient evidences to prove the

connecting chain of circumstances as to unerringly point towards the

guilt of the appellants. Conviction on the basis of conjectures and

surmises is unreasonable, unwanted, undesirable, not sought for,

arbitrary, whimsical and alien to the concept of our criminal

jurisprudence. Holding the appellants hostage to the uncorroborated

allegations and latches on part of the prosecution is against justice,

fairness and reasonableness. As such, we are of the firm view that

the dark clouds of suspicion looming large on the story of the

prosecution have poured down heavily to wash away the entire dust

ridden allegations. Hence, the conviction of the appellants in the

present case is not sustainable in the eyes of law.

14. In the result, both the appeals stand allowed and the

judgment of conviction dated 31.03.2016 and order of sentence

dated 04.04.2016 passed by Sri Satyendra Rajak, 1st Addl. Sessions

Judge-cum-Special Judge, Purnea in Session Trial No. 03 of 2014,

CIS No. 08/2014 arising out of Dagarua P.S. case No. 15/2014, are

set aside. Since the appellants, namely, Md. Rehan (appellant in Cr.

Patna High Court CR. APP (DB) No.1058 of 2016 dt.22-06-2023

Appeal (DB) No. 1058 of 2016) and Mr. Azaz @ Babo (appellant in

Cr. Appeal (DB) No. 482 of 2016) are in jail custody, they are

directed to be released from custody forthwith, if not wanted in any

other case.

(Sudhir Singh, J)

( Chandra Prakash Singh, J)

Pankaj/-

AFR/NAFR                AFR
CAV DATE                19.05.2023
Uploading Date          22.06.2023
Transmission Date       22.06.2023