'Glaring Inconsistencies': Patna High Court Acquits Man On Death Row For Failure Of IO To Inspect Crime Scene, Delayed Filing Of FIR

The Patna High Court on Friday acquitted a person who was sentenced to death for allegedly raping and killing a 16 year old girl in Bhojpur district, Bihar. The Court also set aside the conviction of two others who had been awarded life imprisonment by the Sessions Court in the same case.

The division Bench of Justice Ashwani Kumar Singh and Justice Arvind Srivastava observed glaring inconsistencies in the evidence of the prosecution witnesses and also noted that the investigating authorities had not bothered to visit the scene of the crime. The police authorities had submitted that the body of the deceased victim had been recovered consequent to the confessional statement of the accused person Balwant Singh although it was later found that the body of the deceased had been recovered much before the accused was even arrested.

"In view of the inordinate and unexplained delay in lodging the FIR, the casual manner in which the investigation was carried out, the investigating officer did not inspect the place of occurrence where the victim was allegedly gang raped and killed, the inadmissibility of confessional statement of the appellant Balwant Singh, the glaring inconsistencies in the evidence of witnesses examined during trial and the contradictions taken from the investigating officer, I am of the opinion that the prosecution has not been able to prove the charge under Section 302 of the IPC against the appellants beyond shadow of reasonable doubt" , the Court opined.

In the instant case, the deceased victim had been allegedly kidnapped by the appellants on January 31, 2018 at 8:00 PM and thereafter raped and strangulated to death. Her body had been recovered by the police authorities from a mustard filed at Jugal Mahto. The father of the victim had subsequently lodged an FIR with the police wherein he had stated that he had witnessed the appellants abducting his minor daughter by forcibly taking her away on their motorbikes.

Observations:

Pursuant a perusal of the rival submissions, the Court noted that although the two eye-witnesses Kamlesh Rai and Sheo Raj Rai had allegedly witnessed the kidnapping on January 31, 2018, they did not bother to inform the police for more than 5 days. The police authorities were approached by the eye-witnesses only on February 2, 2018.

Further, the Court opined that although an FIR is not a substantive piece of evidence, it must be lodged at the earliest to prevent fabrication of evidence. Reliance was placed on the Supreme Court judgement in Thulia Kali v. State of Tamil Nadu wherein the Apex Court had observed that the FIR in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced during the trial.

Accordingly, the Court observed,

"It is true that there is no hard and fast rule that the delay in lodging the FIR would automatically render the prosecution case doubtful. However, the delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. Thus, the fact that the FIR has been lodged belatedly has to be considered in the light of other facts and circumstances of the case."

The Court proceeded to examine whether the delay in lodging the FIR in the instant case was justified. It was noted that there had been a delay in lodging the FIR because the father of the deceased minor had undertaken measures to find the victim himself since the matter involved the prestige of his family. Further, the evidence of the eye witness Sheo Raj Rai was full of contradictions and had not been corroborated by other prosecution witnesses during trial.

"In view of the inherent contradictions in the evidence of the informant and the investigating officer, I am of the opinion that the delay caused in institution of the FIR has not been properly explained", the Court opined.

Further, the Court observed that there also existed ambiguity regarding the persons who had accompanied the father of the victim to the police station in order to lodge an FIR. Thus, whether the police had recorded the statement of the informant or a pre-prepared written report had been handed over to the police was not known.

Opining on the contradictions in the testimony of the informant i.e. the father of the victim, the Court observed that in the FIR he had specified that on the first bike accused persons Balwant Singh, Chhotu Kumar Singh and the deceased were sitting and one unknown person was sitting on the second bike. However, during trial he had changed his narrative regarding the manner of occurrence of the alleged kidnapping.

Furthermore, the accused person Balwant Singh had specified in his confessional statement that the kidnapping and subsequent rape and murder of the victim had taken place in the marriage hall of Semra. However, the Court noted that the scene of the crime had not been investigated and thus observed with anguish,

"After going through the entire evidence of the two investigating officers, it would be crystal clear that neither the first investigating officer nor the second investigating officer thought it proper to inspect the said marriage hall. There has been no investigation on this point."

Enumerating further on the abject discrepancies, the Court observed that the police had recorded the confessional statement of the accused Balwant Singh on February 18, 2018 although the body of the deceased had been recovered nearly 13 days earlier i.e. on February 5, 2018.

"There is no explanation as to why the confessional statement made by Balwant Singh was not recorded in the night of 05.02.2018 or prior to the recovery of the body of the deceased. There is also no explanation as to why the confessional statement of the accused Balwant Singh was recorded on 18.02.2018 in the police station if the police had the confessional statement available with them from before", the order read.

Placing reliance on Sections 25 and 26 of the Indian Evidence Act the Court further opined that the confession of an accused while in police custody cannot be proved in evidence against him unless it is made in the immediate presence of a Magistrate. Thus, the trial Court had erroneously relied upon the confession made by the accused Balwant Singh for arriving at a conclusion of guilt against the appellants, the Court stated.

"Hence, it is not a case of confession leading to recovery and possibly that is the reason that the police never bothered to inspect the marriage hall at Semra, which was the place where the occurrence of murder and gang rape allegedly took place", the Court opined.

Moreover, the report of the vaginal swab of the deceased victim which is necessary to ascertain as to whether the deceased was subjected to rape had not been brought on record. The post mortem report of the deceased also did not suggest anything to corroborate the fact that the prior to her death, the victim had been subjected to rape.

Accordingly, the Court concluded that on consideration of the entire evidence the prosecution has miserably failed to prove its case beyond reasonable doubt against the appellants. The impugned judgement of conviction and order of sentence including the death sentence imposed by the Sessions Court was set aside.

"The appellants, namely, Balwant Singh and Anant Pandey are acquitted of the charges levelled against them. They shall be released from the jail forthwith unless they are required in any other case", the order concluded.

Case Title: Balwant Singh and Ors. v. State of Bihar 

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