Tuesday, in the matter of Ajit Kumar v. State of Bihar, the bench of Chief Justice Sanjay Karol and S. Kumar while acquitted the accused from kidnapping, rape and murder charges, stated that the offence can be proved by circumstantial evidence in a case where there is no direct evidence is not a crime.
“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.”
In the matter, the trial court convicted the appellant, Ajit Kumar under various sections of the IPC and the Protection of Children from Sexual Offences (POCSO) Act, 2012. The appellant was charged with the kidnapping, rape and murder of a minor.
The bench also noted that, the complainant has improvised their version, earlier it was stated that deceased had “set herself on fire”, later improvised that “the accused set her on fire”.
“she was subjected to torture and accused Ajit Kumar subjected her to sexual assault prompting her to set herself on fire…which version stands improvised by the complainant that the accused set her on fire”
The bench observed that the trial court “relied upon the sole testimony of the relatives of the deceased” for the conviction of kidnapping and abduction. For the murder charge, the trial court relied upon the testimony of the doctor and the Investigating Officers. For conviction in rape charge, the trial court “took benefit from the admission made by accused Ajit Kumar in his confessional statement” that “he had sustained burn injuries on his body”.
The bench shown dissatisfaction from the trial court judgement and stated that the trial court convicted the appellant with “much less legally sustainable reasons”.
“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 conclusions, holding the accused guilty of each one of the charged offences.“
The bench also observed “non-examination of material witnesses including the lady of the house from where the body of the deceased was recovered”.
The bench further stated that the trial judge have not “carefully considered the statutory provisions”.
“Also, whether the prosecution witnesses inspired confidence and this testimony fully established the prosecution case beyond a reasonable doubt was not discussed. The trial judge appears to have not carefully considered the statutory provisions making the confessional statement admissible.“
The bench also noted the accused statement that, he had solemnised his marriage with the deceased and in April 2017 on a particular issue, she set herself on fire after poring pouring kerosene oil on her body. In a perplexed state, he left spot on advice of his known.
“we find nowhere to be recorded that it was the accused who had either poured the kerosene oil on the deceased or set her on fire. Also, he had not subjected her to rape or kidnapped her with the intent of making her have sex with someone else.”, in the order.
The bench raised question that “how they traced the accused”, also observed that the accused “was not got medically examined for establishing any injury sustained by him”.
Further the bench also observed that the deceased was not minor which was revealed in the postmortem report.
“We find 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.“, in the order.
On the issue of sexual assault, the bench observed no evidence.
“None found any telltale signs of rape on the spot or the body of the deceased. There is neither medical nor any scientific evidence indicating such fact.“
The bench stated that the prosecution has failed to prove any one of the charges.
“we are of the view that the prosecution has not been able to establish any one of the charges against accused Ajit Kumar. Not only the investigation is incomplete and defective, but also material evidence is missing.“
The bench observed that the chain to establish the case by “circumstantial evidence” is not linked. The bench also observed contradictions in the witnesses statements.
“The witnesses also cannot be said to have deposed full facts. Also, the statements each one of them stands contradicted on material aspects.“
The bench further stated that, “the prosecution has failed to reach to the real assailant”.
“Yes, homicidal death has taken place. But then the prosecution has failed to reach to the real assailant and acquittal of the present accused, certainly would not lead to failure or travesty of justice. Presumption of specific facts, based on the selfinculpatory statement alone, which in any event, in our considered view, is inadmissible in evidence cannot be relied upon for establishing any one of the charges.“
The bench stated that the trail judge should be more careful specifically when dealing with heinous crime which is to be established on circumstantial evidence.
“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.”
“the Trial Judge got swayed with the gravity of crime which undoubtedly is heinous in nature. But this is where the Judge’s role comes in, to decide judiciously in removing the husk from the chaff. The Trial Judge presumed and assumed without discussing, the veracity of fruitfulness of the testimonies of the witnesses“, in the order.
The bench further stated that the trial judge forget the principle of “onus to prove the charge”.
“Perhaps, the principle weighed with the Judge was to apply the preponderance of probabilities, and not beyond a reasonable doubt. In a criminal trial, the onus to prove criminal charge is on the prosecution and not the accused. It is this principle which the Trial Judge forgot in holding that ‘there is nothing available on the case record to disbelieve the version’ having considered the plea taken by the defence. The defence set up by the accused is of mere denial“.
The bench also stated that, the trial judge not discussed the basis of “rarest of rare cases” while granted the “capital punishment”.
“..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.” in the order.
The bench set aside the death penalty and directed to release the accused.