Patna High Court
The State Of Bihar vs Diwakar Mehta And Sintu Kumar Singh @ ... on 19 March, 2008
Bench: Shiva Kirti Singh, Shailesh Kumar Sinha
JUDGMENT
Shiva Kirti Singh and Shailesh Kumar Sinha, JJ.
1. Shiva Kirti Singh & Shailesh Kumar Sinha, JJ. The Death Reference and the analogous four criminal appeals under consideration arise out of judgment and order dated 10.5.2006 passed by learned Additional Sessions Judge-1, Katihar in Sessions Trial No. 104/2003 whereby the learned trial court has convicted appellants, Sintu Kumar Singh @ Pankaj and Diwakar Mehta for the offence under Section 302 of the Indian Penal Code (for brevity, IPC) and awarded death sentence. They have further been convicted for the offence under Section 364(A), 201, 302 read with Section 120(B) and 364(A) read with Section 120(B) of the IPC. But no separate sentence has been awarded for the other offences. Appellants, Vikash Kumar Singh @ Bikash Kumar Singh and Pankaj Kumar Singh have been convicted for the offence under Section 364(A) and 364(A) read with Section 120(B) of the IPC. Both of them have been awarded life imprisonment for the offence under Section 364(A) of the IPC and no separate sentence has been awarded for the other offence. Three other accused persons tried together with the appellants, namely, Shashi Kumar Singh, Banti Kumar Sinha @ Sujit Kr. Singh and Vijay Yadav have been acquitted.
2. The prosecution case at the initial stage was simply about the disappearance of Mohit Kataruka, a 15 years old son of informant, Badri Prasad Kataruka, PW-11 on 7.10.2002 when he could not return from the school till noon hours, the expected time. The FIR was lodged by informant on 7.10.2002 at 20.40 hours with Katihar Town Police Station disclosing that the victim boy had gone to attend classes at 5:30 A.M. by his own bicycle but did not return home till 1:30 P.M. The school hour ended at 11:00 O'clock therefore his parents became anxious. At about 1:45 P.M. a telephonic message was received at informant's house by a person who gave out a fictitious name of Rakesh Chaudhary and further informed that Mohit Kataruka was at his home situated at Laliahi near a Mahaveer temple and he would return after a Puja in about two hours time. Mohit also talked on the same telephone and told her mother that he would come back after two hours. When the victim did not return till 4:00 P.M. then the informant went to Laliahi and found out that no person of the given name resides in the locality.
3. He also went to the school and learnt that Mohit had left the school after closing hours. Since the son of the informant had not returned, the informant suspected that his son had been kidnapped. Hence he lodged the FIR and gave a passport size photograph of his son along with written information (Exhibit-4).
4. The further case of the prosecution is that in course of the investigation the Investigating Officer, Nand Kishore Rajak (PW-14) received some clues regarding involvement of accused, Ranvir Yadav @ Sheru, son of accused Vijay Yadav and when he raided the house of that accused, he arrested accused Diwakar Mehta, Sintu Kumar @ Pankaj and Pankaj Kumar Singh from there. The three arrested accused made confessional statements before the police which were recorded at 1:00 P.M., 1:15 P.M. and 1:25 P.M. respectively. The police seized a motorcycle and a bicycle from the Darwaza of Vijay Yadav vide Exhibit-8 dated 8.10.2002 prepared at 1:15 P.M. The chain guard of the cycle bore the name of Pankaj Kumar. Thereafter police claims to have recovered dead body of Mohit Kataruka from a field near Chetariapeer, Sisiabahiar at about 2:30 P.M. with some injuries on the dead body. The I.O. prepared the inquest report (Exhibit-2) and sent the dead body for postmortem examination which was conducted on the same date i.e. 8.10.2002 at 10:00 P.M. The postmortem report has been proved by PW-12, Dr. Rajnikant Jha as Exhibit-5 and it shows the cause of death as asphyxia due to strangulation done by soft ligature. The time elapsed since death was within 36 hours. The police also seized a bicycle in front of showroom at Mirchabari, Katihar on 8.10.2002 at 1:15 P.M. vide Exhibit-8/2, and an ambassador car bearing No. BRY 1155 from possession of an accused, Shashi Kumar as its driver vide Exhibit-8/1 prepared on 8.10.2002 at 1:40 P.M. Another bicycle of green colour of Hero Royal make having mudguard of Avon Company was seized from the same place and at the same time as given in Exhibit-1. Some articles such as Gamchcha (soft towel) and the school bag containing books of the victim boy were seized from Sisiabahiar close to Adarsh Nala of Irrigation Department where the death body was found. For that seizure list contained in Exhibits 8/3 and 8/4 were prepared on 8.10.2002 at 15 hours and 1510 hours respectively. Both the said seizure list contain signatures of appellants, Sintu Kumar Singh and Diwakar Mehta.
5. After investigation charge sheet was submitted against eight persons but the trial of accused Ranvir Yadav @ Sheru was separated after he was found to be a juvenile. After cognizance and commitment to the court of sessions charges were framed against seven accused persons to which they pleaded not guilty and faced trial. The defence of the accused persons appears to be total denial of the occurrence as alleged by the prosecution. A special plea of alibi was also taken by acquitted accused, Vijay Yadav for which he examined himself as DW-2 and two others as DW-1 and DW-3.
6. The prosecution in order to prove its case has examined altogether 16 witnesses. Out of them PW-1, Shankar Gupta, PW-2, Adarsh Kumar, PW-3, Sanjana Subham, PW-4, Balram Mandal, PW-5, Arbind Kumar, PW-6, Sripati Singh, PW-7, Shashank Sekhar, PW-15, Ramesh Kumar Yadav and PW-16, Nagendra Yadav did not support the prosecution case and have been treated as hostile.
7. PW-8, Sujeet Kumar Chaudhary is a formal witness who has proved the formal FIR as Exhibit-3 and the signature of the Officer Incharge on the same as Exhibit 3/1. PW-9, Kumkum Devi is the mother of the victim. PW-10, Raja Ram Kataruka is an uncle of the victim and PW-11, Badri Prasad Kataruka is father of the victim boy, Mohit Kataruka. Out of these three family members of the victim, PW-10 has claimed to have heard from PW-11 regarding disappearance of Mohit. On the basis of address given on telephone, he had also gone with Badri Prasad Kataruka to Laliahi Mohalla and they failed to locate any person by the name of Rakesh Chaudhary. He had also accompanied Badri Prasad to the school of the victim for making enquiries. He has not deposed anything against the accused persons. Same is the effect of deposition of PW-9 and PW-11. They being mother and father respectively of the victim boy have supported the facts given in the FIR relating to disappearance of the victim boy, Mohit and failure to locate the house of Rakesh Chaudhary at the address given on telephone. As a result FIR was lodged suspecting that the victim might have been kidnapped. From the evidence of these two witnesses it appears that they were not at all involved with the investigation of the case and had not witnessed the arrest or alleged confessions giving out disclosure information by the accused persons nor had they accompanied the police for recovery of the dead body and its identification. PW-9 was not asked to identify any of the accused in the dock. PW-10 and PW-11 have stated that they did not recognize any of the accused persons present in the dock.
8. PW-12, Dr. Rajnikant Jha as notice earlier has proved the postmortem report prepared by him as Exhibit-5. He noticed injuries on the dead body and found the cause of death to be asphyxia due to strangulation done by soft ligature. The time elapsed since death was found to be within 36 hours. The postmortem examination was conducted on 8.10.2002 at 10:00 P.M. PW-13, Dr. Murlidhar Singh claims to have assisted PW-12 in the postmortem examination. He has identified his own signature on the postmortem report as Exhibit-6.
9. PW-14, Nand Kishore Rajak is the Investigating Officer of this case. At the relevant time he was posted as Officer Incharge of Katihar Town P.S. After receiving the written information from the informant, Badri Prasad Kataruka, he registered Katihar Town P.S. Case No. 349 of 2002 dated 7.10.2002 under Section 364A against unknown persons and took up investigation. He claims to have recorded statement of PWs. 2, 3, 7 and of Nilesh Kumar and Rakesh Ranjan (both not examined) and then to have made a raid at village, Barmasia against suspect Ranvir @ Sheru son of accused, Vijay Yadav. According to him he arrested appellants, Diwakar Mehta, Sintu Kumar Singh @ Pankaj and Pankaj Kumar Singh at the Darwaza of Vijay Yadav and recorded their confessional statements vide Exhibit-7, 7/1 and 7/2 respectively on the same dated i.e. 8.10.2002 at 1:00 PM, 1:15 PM and 1:25 PM respectively. On the basis of such confessional statements he claims to have seized different articles such as motorcycle, a bicycle, a white ambassador car in the possession of its driver, Shashi Kumar. He also arrested the driver of car, accused Shashi Kumar (since acquitted). Thereafter on the basis of statement of accused Pankaj Kumar Singh and accused Sintu Singh he recovered another bicycle from the flank of a road in front of showroom of Rajdoot Motorcycle at Mirchabari, Katihar. This bicycle was said to be of the victim and has been marked as material Exhibit-1.
10. The Investigating Officer has further claimed that he proceeded with accused, Sintu Singh and Diwakar Mehta, on the basis of their confessional statements to Sisiabahiar within the jurisdiction of Korha P.S. and at the instance of these two accused he recovered the dead body of Mohit which was lying covered with grass, in the presence of independent witnesses, PWs-4 & 6. He also claims to have recovered school bag and articles kept therein belonging to the victim boy lying near the dead body. He also prepared a seizure list of Gamchha (soft towel) lying on the dead body which was said to be of the accused persons. He noted the details of the place where the dead body was found. It was Adarsh Channel (Canal) of Irrigation Department situated at village, Sisiabahiar at a distance of about 1/2 kilometer to east of Chetariapeer, Parmanandpur Mor of NH-31 within Korha P.S. The spot was 150 Yards to the north of a brick-soling road leading to Parmanandpur. There were big grasses in huge quantity at the place of occurrence with which the dead body was covered after being covered with a sky and white colour stripe Gamchha (soft towel). He noticed cut injuries below the lip and at the lip of the dead body and also noticed that the throat and testicles had been pinned with some pointed object. The dead body was found in the school dress of Scottish Public School, Katihar. On the basis of information received from the witnesses and the accused persons the I.O. deposed as to how the victim, Mohit Kataruka was taken to Barmasia first by bicycle then to Marchabari Library by Horo Honda motorcycle, from there to Gerabari through Purnea by an ambassador car and from Gerabari to the place of occurrence on foot. After preparing inquest report the I.O. sent the dead body for postmortem examination. He also arrested the accused, Banti Kumar Sinha (since acquitted) and recorded his confession in Paragraph-63 of the case diary marked as Exhibit-7/3. A separate recording of same confessional statement on separate sheet has also been proved and marked as Exhibit-7/4. In paragraph-14, the I.O. has stated that he came to know about how the victim-deceased was brought to the place of occurrence from various places on different vehicles from the confessional statement of accused persons. He also claims to have subsequently taken accused, Ranvir Yadav @ Sheru on remand and recorded his confessional statement. A bicycle said to be belonging to this juvenile accused has been marked as material Exhibit-2. The articles such as school bag, books etc. mentioned in Exhibit-8/3 together with the school bag have been marked as material Exhibit-3. The Gamchha found kept on the dead body has been marked as material Exhibit-4. According to the I.O., PWs-1, 2, 3, 4, 5, 6 and 7 had supported the prosecution case in their statements before him. According to him PWs-1, 2, and 3 had claimed that they had seen the victim, Mohit going on a motorcycle with juvenile accused, Ranvir on a Hero Honda motorcycle after the school had closed on 7.10.2002. He has further claimed that PW-7, Shashank Sekhar had stated that he had seen Mohit in school dress with 2-3 students on NH-31 at Gerabari.
11. In cross-examination of the I.O. it has been elicited that he took only 15 minutes in recording confessional statement of Diwakar Mehta which is in 12 pages. He has replied that he recorded the confessional statement while sitting in the jeep at the place where the accused were arrested. The confessional statement of accused Sintu is in 9 pages and the statement of accused Pankaj is in 4 pages. He has admitted that he produced these arrested accused persons before Chief Judicial Magistrate, Katihar on 11.10.2002 at 1600 hours for remand. He has given the time of arrest as 8.10.2002 at 12.50 hours and tried to explain that he could not get these accused produced before Magistrate on account of remaining busy with the investigation work. He has denied the suggestion that he has prepared concocted confessional statements of all the three accused persons while sitting at some other place in order to prove the case true against them. He has admitted that he submitted an application to the Chief Judicial Magistrate for adding Section 302, 201 and 120B of the IPC on 9.10.2002 but has explained that it was sent from an outside camp and he returned to the Police Station only on 10.10.2002. He has also admitted that the confessional statements of accused persons were not sent with his requisition and the statements of all the three accused persons were sent separately on different dates.
12. On the basis of nature of the prosecution evidence as noticed earlier, it has rightly been submitted on behalf of the appellants that there is no direct evidence in this case because none has come forward to depose in Court of having seen any of the appellants kidnapping or abducting the victim boy or going with him or participating in causing his death. It has further been submitted that the evidence adduced on behalf of the prosecution does not make out even circumstantial evidence of any significance against the appellants. It was pointed out that the family members of the deceased have not alleged any motive nor have they claimed to identify any of the appellants as friends or acquaintance of the victim boy and the story introduced in the confessional statement that Sintu was earlier a servant in the household of the victim does not stand corroborated from the evidence of PWs-9, 10 and 11. It was also pointed out that according to I.O. some of the hostile witnesses had only seen the juvenile accused, Sheru with the victim on a motorcycle after the school hours. Thus, even the statements of the hostile witnesses before the police make out a case of last seen with the deceased only against juvenile accused, Ranvir @ Sheru and not against any of these appellants.
13. Learned Counsel for the State has also fairly accepted the situation that there is no evidence against the appellants except the evidence of the I.O., PW-14, who has claimed to have recorded the disclosure statements of three of the appellants and pursuant to which he has recovered some bicycles, motorcycle and a car and the dead body along with school bag and books of the victim boy. According to learned Counsel for the State Section 27 of the Evidence Act permits use of such disclosure statement and makes them admissible for being used against the accused who gave out such disclosure statements as an accused, while in police custody, leading to discovery of material facts. According to learned Counsel for the State, since the disclosure statements of Sintu and Diwakar led to discovery of the dead body covered with a soft towel and the doctor found the cause of death to be strangulation by a soft ligature, the trial court rightly held Sintu and Diwakar guilty of the offence under Section 302 of the IPC because they failed to give any explanation as to how they got the special knowledge of the dead body being hidden under grass at a lonely place.
14. So far as appellants Vikash and Pankaj Kumar Singh are concerned it was submitted that Pankaj Kumar Singh also disclosed certain materials in his confession, (Exhibit-7/2) and on that basis the cycle of the victim boy was recovered and hence he has been held guilty for the offence under Section 364A of the IPC. In respect of appellant, Vikash Kumar Singh @ Bikash Kumar Singh admittedly there is no disclosure statement nor anything incriminating is alleged to have been found from his possession. His name has been implicated on the basis of alleged confessional statements.
15. So far as the offence under Section 364A of the IPC is concerned, on going through the evidence available on record it is found that neither the family members of the victim nor any other person has come forward to allege that the victim had been taken by known or unknown persons against his wishes or that he was kidnapped for ransom. In fact, story of telephonic message given out in the FIR shows to the contrary that the victim himself talked to his mother that he will come after two hours and he was with his friends. Hence there is no difficulty in holding that there is no iota of evidence available on record to make out any offence of kidnapping or kidnapping for ransom. In that view of the matter it must be held that charges for which appellants, Vikash Kumar Singh @ Bikash Kumar Singh and Pankaj Kumar Singh have been convicted by the trial court have not been established by the prosecution by any cogent, admissible and reliable evidence. Hence the conviction of these two appellants cannot be sustained.
16. So far as appellants, Sintu Kumar Singh @ Pankaj and Diwakar Mehta are concerned, they have been convicted only on account of disclosure statements attributed to them by the Investigating Officer which allegedly led to discovery of the dead body from a place which was allegedly shown by these two to the Investigating Officer. The issue is whether the confessional statements or disclosure statements attributed to these two appellants can be accepted to have been given out by these two appellants to the Investigating Officer, as claimed by him, at the time and place shown in Exhibit-7, 7/1 and whether the evidence admissible under Section 27 of the Evidence Act by itself is sufficient to sustain the conviction of the appellants.
17. Arguments were advanced regarding scope and ambit of Section 27 of the Evidence Act and some judgments were also cited to submit that joint statements of several co-accused leading to discovery is not covered by Section 27 of the Evidence Act. The law relating to Section 27 of the Evidence Act has been well explained in several judicial pronouncements and there is no need to discuss the various judgments which are consistent in holding that the provisions of Section 27 of the Evidence Act are exception to the general rules as appear in Section 25 and 26 of the Evidence Act that confession to police officer shall not be proved against a person accused of any offence and further confession by an accused while in custody of police shall also not be proved against such person, unless it be made in the immediate presence of a Magistrate. As an exception, Section 27 makes admissible only so much of information given by an accused in police custody as relates distinctly to the facts thereby discovered.
18. In the present case, the primary issue is to find out whether the claim of the Investigating Officer, PW-14 that he recorded the disclosure statements of three of the appellants within half an hour while sitting in the jeep near the place of their arrest is reliable when no other witness has been examined to support such claim. From the discussion of prosecution witnesses made earlier it is clear that none of the PWs have claimed to be present at the time of arrest of the three accused persons or to have witnessed the recording of their alleged confessions by PW-14. As noticed earlier, the I.O. has claimed to have recorded confessional statements of Diwakar Mehta which is in 12 pages in only 15 minutes. The second confessional statement is of accused, Sintu which is in 9 pages and the third statement is of accused, Pankaj running in four pages. According to PW-15 it took him 25 minutes to complete the recording of the first two statements which together covered 21 pages. On going through those statements which are exhibits, it is found that the writing is quite legible, neat and compact without leaving much space. The pages are also full-scape and a reasonable doubt arises whether the I.O. could have recorded 21 pages of confessional statements within 25 minutes. The other fact raising a suspicion regarding claim of the I.O. as to the time of arrest of all the three accused persons is his own admission which is supported by the records that the three arrested accused persons were produced before the learned Chief Judicial Magistrate, Katihar on 11.10.2002 at 1600 hours whereas they were shown to have been arrested on 8.10.2002 at 1250 hours. The I.O. has tried to explain such delay which is impermissible in law, by stating that he was busy with the investigation work. But he has admitted that he submitted an application to the Chief Judicial Magistrate for adding Section 302, 201 and 120B of the IPC on 9.10.2002. He has tried to explain that it was sent from an outside camp and not from the police station. The explanations fail to rule out a reasonable doubt regarding claim of the I.O. regarding date and time of the arrest of the three accused persons and the recording of their alleged confessions. He has also admitted that the confessional statements of accused persons were not sent with requisition but were sent to the court separately on different dates. This itself is a strong circumstance to create doubt regarding veracity of claims made by the Investigating Officer, Pw-14.
19. In view of the aforesaid discussions, this Court finds difficulty in relying upon claim of PW-14 that appellants, Sintu Kumar Singh @ Pankaj and Diwakar Mehta had given their confessional statements or disclosure statements at the time and place shows in Exhibit-7 and 7/1. Once we have reached this conclusion, it must be held that the prosecution case that incriminating articles including the dead body were discovered pursuant to disclosures made by these two appellants becomes doubtful in absence of any reliable and corroborative evidence to support the claim of the Investigating Officer, PW-14.
20. No doubt, dead body of the deceased was found by the I.O. for which he prepared an inquest report and at that time appellants, Sintu Kumar Singh @ Pankaj Kumar Singh and Diwakar Mehta were present and signed on the seizure list. But this fact alone is not sufficient to lead to an inference that the dead body was discovered pursuant to disclosures made by them. It can only be a circumstance to create some suspicion against them but as held by the Hon'ble Supreme Court in the case of Bakhshish Singh v. The State of Punjab such evidence cannot be conclusive. In that case there was evidence against the accused of pointing out the place where dead body was thrown. The Apex court held that this stand alone could not be conclusive to fasten the guilt of murder against the accused. In the present case, we find no further evidence direct or circumstantial against appellants, Sintu Kumar Singh @ Pankaj and Diwakar Mehta to incriminate them in the offences for which they have been charged. Hence in respect of these two appellants also it must be held that the prosecution has failed to prove the charges beyond reasonable doubts.
21. On the basis of discussions made above and findings recorded, it is found that all the four appellants are entitled to acquittal and hence they are acquitted of all the charges. The Death Reference is accordingly answered in negative and the appeals of all the appellants are allowed. It appears that all the appellants are in jail. They are directed to be released from custody forthwith if not required in connection with any other case.