New Delhi (ILNS): The Patna High Court has set aside the order of a trial court, acquitting a man who was sentenced to death for alleged gang rape and murder. The high court, in its judgment, stated that the approach adopted by the trial court judge was casual and perfunctory in nature, unmindful of the consequences of the decision.
A two-judge bench of the Chief Justice Sanjay Karol and Justice S. Kumar in a 60-page judgment has given a set of reasons, why the judgment of trial court in convicting and sentence of awarding death penalty to the accused lack of established principles of law.
According to the prosecution’s case accused Ajit Kumar and Vishal Kumar enticed and kidnapped the prosecutrix, a minor girl, from the guardianship of her parents residing in village Pipra (Bihar) and took her first to Patna and then to Vadodara (Gujarat) where she was subjected to gang rape and burnt to death.
In crux, the case of the prosecution, concerning which accused Ajit Kumar stands convicted for committing an offence punishable under sections 363, 366A, 120B, 302, 376(D) of the Indian Penal Code and section 6(g) of the Protection of Children from Sexual Offences Act, 2012. Concerning an offence under section 302 IPC, the accused stands sentenced to be hanged by the neck till his death.
The High Court has observed that for convicting the accused the trial court has relied heavily on the testimonies of relatives of deceased and testimony of doctor and police officers beyond a shadow of reasonable doubt and there being nothing on record “to disbelieve the prosecution version”.
The High Court noted that the whole of the judgment given by the trial court runs into nine pages. The trial Judge has in a perfunctory manner referred to the evidence and not furnished any cogent, much less legally sustainable reasons in arriving at conclusion, holding the accused guilty of each one of the charged offences.
The Court emphasized on the law to be considered while proving the charged offence based on circumstantial evidence.
To prove the commission of offense beyond reasonable doubt based on circumstantial evidence, an unbroken chain of circumstances pointing to the guilt of the accused alone has to be established. It is settled position of law that where there is no direct or ocular evidence of the crime, the guilt of the accused can be proved by circumstantial evidence, but then, circumstances from which conclusion of guilt must be drawn must be fully proved and be conclusive in nature to fully connect the accused with the crime. All links in the chain of circumstances must be proved beyond reasonable doubt, the proved circumstances must be consistent only with the hypothesis of guilt of the accused alone and non-else, as also inconsistent with his innocence.
Proof Beyond Reasonable Doubt
It is trite law that in criminal cases, the burden of proof on the prosecution is one of proof beyond reasonable doubt as opposed to a preponderance of possibilities.
The Court has observed that even though in the signed complaint, reference was only of two accused persons namely Ajit Kumar and Vishal Kumar but in the charge-sheet, we find there is a reference of a third person i.e. Govind Prasad @ Govinda. We may not be misunderstood to have expressed any opinion on their complicity, for investigation against them is pending, but on record, there is no documentary evidence establishing their complicity in the alleged crime.
The Court further discussed the oral evidence and said according to the testimony of doctor and also the documents he has proved establishing conduct of postmortem of the deceased on 20th April 2017 and that she died due to “shock following burns”. “Significantly, other than this material, there is no documentary or other tangible evidence, indicating the burn injuries to have been caused by pouring kerosene oil. It only belies the prosecution version of burn injuries caused as a result of inflammable material such as kerosene,” said the Court.
Evidentiary value of Hearsay Evidence
Hearsay evidence refers to a statement of fact averred by person who was not privy to the transaction himself/herself, but received the same from a third person. The rule on admissibility of hearsay evidence is not res integra. It is well settled that hearsay evidence is not admissible as proof of a fact, except for in certain accepted exceptions.
The Court said, “The inadmissibility of hearsay evidence comes from the idea that a person having no personal knowledge of a fact must not be allowed to give evidence of the same.”
In light of the above, the Court has questioned the testimony of the investigating officer in the present case and said, before the trial court he states that on 19th April 2017 he got information of “a burnt dead body of a lady” in Yashoda colony. He went and took the same into his custody. In the room where the dead body was lying, he found an Aadhar Card from which he could ascertain the particulars of the deceased, hailing to be from district Gopalganj (Bihar). As such, he informed the police at Police Station Manjhagarh (having jurisdiction of the address indicated in the Aadhar Card) and after registering the case, prepared the Inquest Report (Exhibit-3). But his testimony is not corroborated by any document. No entry of information of dead body; his visit to the spot; finding the Aadhar Card or taking it into possession or contacting the Police in Bihar is recorded anywhere. No document of proof substantiating any such fact is on record. Is he really telling the truth? Further, he admits that during the investigation, he found none else to be present in the room and found smell of kerosene emanating from the dead body. But there is no supportive, much less corroborative, material on record to such effect.
“Thus, to our mind, the testimony of all the three members, on the issue of kidnapping, sexual assault and murder, based on hearsay, is wholly uninspiring in evidence, apart from being self-contradictory. None of these witnesses alleges intimidation, threat or apprehension of any nature from the accused. Or any pressure from anyone. None of them contended that the deceased was forcibly taken away by the accused. None of them asserts that in Bihar, where the deceased was staying with the accused, she was subjected to sexual assault,” said the Court.
The Court also finds that the trial court has committed a grave error in not putting the entire set of circumstances to the accused in the statement under Section 313 Cr.P.C. Notably; the circumstance of the confessional statement has not even been put to the accused. Equally, the case leading to the guilt of the accused in relation to conviction under Sections 363, 366A, 120B, 376(D) and 302 of the Indian Penal Code cannot be said to have been put to the accused.
Significance of Examination of the Accused under Section 313 of the Code
Section 313 of the Code gives the trial Court a power of examination of the accused before the Court. Under this section, the accused is given an opportunity to explain any circumstance appearing in evidence against him.
“Undoubtedly, the Trial Judge ought to have been more careful in putting out each one of the material circumstances, enabling the accused to answer the same, understand evidence to be led in rebuttal. Absence of which, according to us has caused material prejudice to the accused. After all, we are dealing with a heinous crime sought to be established, based on circumstantial evidence,” held by the High Court.
The Court noted that the reading of the sentencing part of the judgment, one finds the Trial Judge, to have only concluded, without assigning any reason that the nature of the offence and the manner in which it was committed to fall within the category of ‘rarest of rare cases’.
The Court reiterates Principles of Capital Punishment Sentencing
1. Rarest of rare cases: The normal rule of punishment for murder is sentence for life and exception is death penalty. Death penalty must only be given in rarest of the rare cases. To depart from the normal rule and give death sentence.
2. Judicial discretion on sentencing must be accompanied by application of judicial mind, and governed by rule of law.
3. The judgment must be supported by special reasons.
4. Balancing of aggravating and mitigating circumstances: As listing all possible aggravating and mitigating circumstances is not possible, judicial discretion on a case- to-case basis depending on an analysis of facts and circumstances of each case is the best safeguard. Doctrine of proportionality of gravity of offence and punishment becomes relevant.
5. Weightage to every relevant circumstance relating to the crime and the criminal: Weightage must be given to the motive, manner and anti-social or abhorrent nature, magnitude of the crime, personality of the victim i.e. the court must examine the manner in which the crime is committed, offender’s mental condition at the relevant time, motive of offence, brutality with which crime was committed and who it was committed on.
6. Residual doubt becomes a mitigating circumstance, more so, for cases based on circumstantial evidence.
7. Judicial approach must be cautious, circumspect and careful. Court must exercise prudence, and each court – from Sessions court to the Supreme Court – must peruse and analyze facts of the case at hand and reach independent conclusion.
8. Sessions court, in particular, must rigorously apply the rarest of rare case principle, they cannot do lip service to application of judicious mind, and their discretion is liable to be corrected by superior courts as a safeguard.
9. Principle of retribution: Capital punishment is based on the principle of denunciation of wrongdoing. It is a reflection of revulsion felt by society against crimes so outrageous that the wrongdoer gets ‘punishment they deserve’ – where life imprisonment is an inadequate punishment for the crime.
10. Doctrine of rehabilitation: The court must take into account where there is a possibility of rehabilitation of the offender and not determine the punishment on the ground of proportionality alone.
11. The court must not be an oracle of the public opinion and recognize limits to judicial power. They must ensure that individual rights guaranteed by the constitution are at a higher pedestal than public opinion.
“What is the basis of his conclusion of the case being the rarest of rare cases is not discussed. What are the special reasons for grant of capital punishment; whether there were any mitigating circumstances; what was the mental state, motive, or the brutality of the crime were never thought of much less considered by the learned trial judge. The approach adopted is casual and perfunctory in nature, unmindful of the consequences of the decision which when implemented becomes irrevocable and irreversible. We are unable to persuade ourselves to agree with the Trial Judge, either on the sentence of awarding death penalty or applying the principles of sentencing. The sentence for each one of the offences was required to be pronounced which, perhaps Trial Judge forgot to do so,” held by the High Court.
Read the judgment here;78c5ed55-4a72-419f-8238-a8ce5d62ba7d