Patna High Court
The State Of Bihar vs Umesh Yadav, Ashok Yadav And Sant Raj ... on 20 February, 2008
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh, Dharnidhar Jha
JUDGMENT Shiva Kirti Singh, J.
Page 1736
1. Death Reference in respect of all the three appellants has been heard together with their appeal directed against judgment and order dated 5.4.2006/ 10.4.2006 passed by District and Sessions Judge, Gopalganj in Sessions Trial No. 55/06 whereby all the three appellants have been convicted for the offence under Sections 364, 302 and 201 of the IPC. They have been awarded death sentence for the offence under Section 302 IPC and no separate sentence has been passed for the remaining offences.
2. The prosecution case at the initial stage, as mentioned in the Fardbeyan of Hari Narayan Singh (PW 8) recorded by Sub Inspector of Police, Indrajeet Baitha (PW 7) on 2.1.2006 at 5.45 pm was a simple apprehension of the informant that his son Rahul Kumar, aged 14 years went to attend the call of nature in the field situated west of Bathan, on 1.1.2006 at 7 pm but did not return in the night and even on search, he had not been traced at expected places hence he may have been kidnapped by unknown persons in the last evening itself. One Devendra Singh (PW 10) also signed below the Fardbeyan as a witness.
3. The police went to the village of occurrence and on getting certain clues, the IO first arrested co-accused Vijay Mai Ram, one of the four suspects reported by the villagers to have gone behind the deceased or seen last near him. His confessional statement (Exhibit 4) was recorded by the SI of Police, PW 7, on 3.1.2006 at 1500 hours, at the door of his house in the village of occurrence itself. He gave out details of the alleged crime which according to him, had been committed by him and the three appellants. He disclosed that after abducting Rahul when he was going to ease himself, they took him near a Rahar field situated in Sareh towards south of the village. They committed his murder by tying a muffler and then buried the dead body in one side of a wheat filed. The said spot was then irrigated with water. The IO arrested appellant Umesh Yadav as well as appellant Ashok Yadav on the same day in the village. The confessional statement of Umesh Yadav was recorded at 1700 hours and the confessional statement of Ashok Yadav was recorded at 1815 hours. Besides giving various details relating to their own life and place of working, they also gave similar confessional statements (Exhibits 4/1 and 4/2) regarding abduction and killing of Rahul and burial of his dead body. They also disclosed that after burying the dead body, the upper level of earth was watered by water available for irrigation so that the place of burial may not be visible. Accused Sant Raj Bind could not be apprehended on that date. The IO sent a requisition by telephonic message to the Sub Divisional Officer, Hathuwa to depute a Magistrate so that the dead body may be searched and exhumed. The Block Development Officer of Uchaka Gaon, Sri Banke Bihari Choudhary (PW 12) was deputed for the purpose and he arrived at about 7.30 pm. By that time, several higher police officers had also arrived. All the three accused persons had been detained and on their disclosure and identification of the spot where the dead body had been allegedly buried, the earth was removed and the dead body of the Rahul was exhumed from the wheat field of one Ansari Mian. The IO completed the preparation of inquest report and seized one muffler from near the place where the dead body was discovered. The said muffler (Material Exhibit 1) was identified by witnesses as that of accused Sant Raj Bind. After completing investigation, chargesheet was submitted on the Page 1737 next day i.e. 4.1.2006 against the three persons in custody leading to cognizance against them. Their cases were committed to the court of sessions. Thereafter, appellant No. 3, Sant Raj Bind, surrendered on 30.1.2006. A supplementary chargesheet was submitted on the next date and after cognizance, his case was also committed to the court of sessions. Trial proceeded against all the four accused. They pleaded not guilty to the charges and after trial, the appellants have been convicted and sentenced to death. The trial of co-accused Vijay Mai Ram was separated after he was found to be a juvenile. The defence is simple denial of the prosecution case.
4. There is no eye witness of the alleged occurrence. Prosecution examined altogether 14 witnesses to prove various circumstances and relevant facts to prove the charges against the appellants. The defence also examined four witnesses for attempting to prove that police arrested appellant Ashok and Umesh at about 9-9.30 in the night after recovery of the dead body at 7 pm on 3.1.2006. A plea of alibi was attempted to be raised on behalf of the appellant No. 3, Sant Raj Bind on the basis of DW 4.
5. PW 1, Sarli Devi is a sister of the informant who has claimed to have seen appellants Ashok and Umesh near the Bathan of deceased in the afternoon hours of 1.1.2006. PW 2, Surendra Prasad is a co-villager who has claimed that while he was returning from his Bathan to his house at the sunset time, he saw Rahul going with a Mug of water to attend the call of nature and at that time, the three appellants and Vijay Mal Ram were going behind him at a distance of 25-30 steps. He has also deposed that when the search for Rahul began, he had also gone with family members of Rahul to houses of four accused persons but they were not present there. The house of this witness is situated in front of house of the deceased. The other two witnesses on point of seeing the accused persons going behind the deceased are PW 5, Paltu Singh and PW 6, Paras Nath Prasad. PW 5 had admitted that he had heard from villagers that Rahul had gone to attend call of nature at the time of sunset and he was followed by the four accused persons including the appellants. He has further claimed that he along with other co-villagers went to the houses of the accused persons in the next morning of the occurrence and the family members of the accused persons disclosed that the accused were not present in their houses. Although PW 5 is a hearsay witness on the point of accused persons going behind the deceased but he has corroborated the prosecution case that names of the appellants had transpired soon after the occurrence as the persons who had gone behind the deceased and they were not found at their houses soon after the occurrence. PW 6 is a co-villager whose house is situated west of Bathan of Rahul, the deceased. He has also claimed to have gone to the house of the four accused persons in the morning of next day of the occurrence and the accused persons were not present there. He has further claimed that on 3rd January he had gone to house of Devendra i.e. PW 10 where Bachcha Choudhary, father of appellant Ashok, came and told that Rahul would be returned on payment of money. The common criticism against the aforesaid witnesses is that these witnesses had not stated before the IO that they had seen the accused persons following the deceased.
6. PW 3 is Pappu Kumar. He has deposed mainly on the point of some differences or enmity which might have worked as the motive for the occurrence. He has deposed that few days prior to the occurrence a person from village Mishra Batraha had come to their village with an allegation that appellant Sant Raj Bind had brought a Page 1738 CD (villagers use this term to mean Video Player). On this Sant Raj Bind was called and asked to return the CD otherwise the whole villagers will be disgraced. Sant Raj Bind replied that he had given the CD to Bachcha Choudhary, Sarpanch and the villagers were free to do whatever they like. The same stand was taken by the three other accused persons and Bachcha Choudhary and they refused to return the CD. He has admitted that in his statement to the police on 2.1.2006 he had not stated such facts to the I.O.
7. PW 4, Paras Nath Pal, is a formal witness who has admitted his signature on the inquest report as well as on the seizure list showing seizure of muffler from the place where the dead body was dug out. This witness is from another village at a distance of 1/2 km from the PO village. He has further deposed that police had arrested some accused persons and had recorded their statements but that was not done in his presence. On the basis of statement police came to the Sukh Nahar Sareh and the dead body was dug out from a field. The Block Development Officer was also present there. He has stated that SI of Police prepared the inquest report in his presence. He has deposed that a muffler was also recovered which he identified as muffler belonging to appellant Sant Raj Bind. He has explained in his cross-examination that he owns land at Sukh Nahar Sareh and he has seen that Sant Raj Bind does the work of a labour and he always saw the muffler around the neck of Sant Raj Bind. He has also proved and identified the muffler as Material Exhibit 1.
8. PW 7 is the IO whose evidence shall be considered later. PW 8, Hari Narayan Singh, is the informant and father of deceased, Rahul. He has deposed that the occurrence took place on 1.1.2006. At the time of sunset, he was sitting at his Bathan where he also has a small shop of tobacco etc. His son, Rahul Kumar, aged 13-14 years was also present there. The four accused persons came to his shop, after some time Ashok and Umesh went away. Vijay Mal Ram purchased a "Galpatti" (appears to be an adhesive bandage) from his shop. His son went to attend the call of nature after taking a water pot. Vijay Mal Ram and Sant Raj Bind went after him. When his son did not return then a search was made at various places but he could not be traced in the night. On the next day, Paras (PW 6), Surendra (PW 2) and his cousin sister, Sarli (PW 1) told the informant that while Rahul was proceeding ahead the four accused persons were seen following him. Then he went to the houses of all the four accused persons but they were traceless since the night. He went to the police station and gave his Fardbeyan (Exhibit 2). He claims to have stated all the facts to the SI of Police who started searching his son. He claims to have disclosed to the IO that the four accused persons were seen following his son and on this the IO first arrested Vijay Mal Ram and thereafter Umesh Yadav and Ashok Yadav. Sant Raj Bind fled away. He did not accompany the police party which dug out the dead body of his son on the basis of disclosure by the arrested accused. He has identified all the four accused persons in the dock. He also disclosed that on 3rd January, Bachcha, Sarpanch, father of appellant Ashok Yadav, told him that his son would be returned if he was paid some money. On being asked how much money he wanted, he replied that he had already told this to Devendra (PW 10).
9. In reply to court question, the informant disclosed that his three brothers work in Arab and the accused persons wanted 3-4 lakhs or 5 lakhs from him. He believed that the murder had been committed for extorting money. He has claimed that he is an illiterate person he can put his signature only. He has admitted that the Page 1739 police did not bring the accused persons to his house after arresting them and he had heard that all the three accused persons were apprehended at their homes. Nothing important has been elicited in the cross-examination of this witness except suggestion that some of the facts such as the accused persons coming to his shop and following the deceased were not disclosed by him to the IO.
10. PW 9, Satyendra Singh, is an important witness. After stating about deceased Rahul having gone to attend the call of nature at the sunset hour on 1.1.2006 and his non-return and consequent search, he has stated that when on the second day also the body could not be found, a case was lodged in the evening. He has stated that police arrested Vijay Mai Ram, Umesh and Ashok on 3.1.2006 and all the three gave their confessional statements which were recorded by the IO in his presence. He has given the details that the statements were read over and the accused persons and Vijay Mal Ram had affixed his thumb impression to his statement whereas accused Umesh Yadav and Ashok Yadav had put their signatures on their confessional statements over which he had also signed as a witness. He has further deposed that at the instance of the three accused persons the dead body was recovered near the side of the canal situated towards south of the village but he had not gone there. He identified accused persons in the dock.
11. P W 9 has further deposed that prior to six months of the occurrence, the cousin brother of Sant Raj Bind, namely, Jag Bandhu Bind was driving a motorcycle of Bachcha Choudhary, father of Ashok Choudhary, which dashed his mother. This had led to a quarrel. He has also stated that as an agnate the informant is related to him as an uncle. He has replied in cross-examination that at the time of interrogation of Vijay Mal Ram many persons of the village were present besides him, PW 10 and PW 4. He has claimed to be with the police when police apprehended the accused persons. After being apprehended, Vijay Mal was taken to Darwaza of accused Umesh. The police apprehended Vijay Mal at 3.00 pm, Umesh was apprehended at about 5.00 pm and Ashok was apprehended at 6-7 pm. He accompanied the police till 6.30 pm then he went to his house. He has denied that the police obtained signature of accused persons on their statements by intimidating them.
12. PW 10, Devendra Singh, is a nephew of the informant and a member of the same joint family. After stating about disappearance of Rahul on 1.1.2006 when he had gone to attend call of nature, he has stated that on 2.1.2006 in the morning, PW 1, PW 2 and PW 6 told him that when Rahul had gone to attend the call of nature, the four accused persons were following him. On this he and others made a search for all the four accused in their houses but they were not present there. Their family members stated that they were traceless since the previous night. The witness made a search for Rahul at various places and when he was not found then he became apprehensive that Rahul might have been kidnapped. Then he went with the informant and information was lodged with the police by his uncle. He also put his signature on that statement as a witness. He has deposed that since 2-3 days prior to occurrence, the four accused persons had been taking a round around his house and Bathan. He has stated that police came in the night of 2nd January and began inquiry. It arrested Vijay Mal Ram in the afternoon of 3.1.2006 in his presence. He confessed his guilt in presence of all that he had committed murder of the deceased in association with other accused persons and buried the dead body. Thereafter Umesh Yadav and Ashok Yadav were arrested Page 1740 from their respective houses. Both confessed their guilt in presence of all the persons. Police went to arrest Sant Raj Bind also but he could not be arrested. Police went to Sukh Nahar Sareh along with the three apprehended accused persons and he also accompanied them. PW 4 had also gone there. The dead body of deceased was taken out after digging earth as indicated by the three accused persons. By that time, the BDO of Uchaka Gaon was present there besides many senior police officers. A muffler of dust colour was found near the dead body and earth was sticking to it. He identified Material Exhibit 1 as the same muffler and claimed that it belonged to Sant Raj Bind who used to move in the village with the said muffler. He has stated that murder was claimed to have been committed by strangulating with the same muffler. He has also admitted his signature on the seizure list. According to him, the muffler was also identified by PW 4 and one Ramakant Prasad. He has also admitted his signature on the inquest report. He has supported PW 9 in respect of incident relating to motorcycle of Bachcha Choudhary six months earlier. He has also supported PW 3 in respect of occurrence relating to CD (Video Player). He has further deposed that on 3.1.2006 in the morning, Bachcha Choudhary told him to pay Rs. 3 lakhs and then his brother would be returned to him but the witness refused to pay money. He has identified the accused persons in dock. In cross-examination of this witness, it has come that the place where the dead body was discovered is towards south-east corner of the village at a distance of about 1 km and the place is scarcely visited by the villagers. Nothing material has been elicited in cross-examination of this witness to discredit his trustworthiness.
13. PW 11, Dr. Raisul Azam, conducted autopsy on the dead body of Rahul Kumar on 4.1.2006 at 10.30 am. He found the following two ante mortem injury:
I. Faint ligature mark around the neck. Width was variable.
II. Neck mildly swollen.
The injuries in the opinion of the doctor were possible by strangulation by means of muffler. On dissection, the doctor found hemorrhage and injuries below the ligature mark on the neck as well as rupture of tracheal ring. The intestine contained stool and gases. In the opinion of doctor, the time elapsed since death was within 48 hours and death was due to shock caused by asphyxia as a result of strangulation. He proved the postmortem report as Exhibit 8. The medical evidence noted above supports the prosecution case. No doubt, according to doctor, the death had taken place within 48 hours but such opinion is only an estimate and cannot be accepted as a certainty. Since the body was buried under wet soil immediately after the murder, the rate of decomposition would be different.
14. At this stage, it will be relevant to refer to and examine the evidence of PW 7, Indrajeet Baitha who is the investigating officer of this case. He has proved the formal FIR as Exhibit 3. He has stated that in his statement the informant expressed his doubt over Sant Raj Bind, Vijay Mal Ram and Dwarika Ram. After recording the same, he reached the place of occurrence on 2.1.2006 at 1900 hours. He inspected the Bathan of the informant as the place of occurrence known till then, recorded the statement of all witnesses on 2.1.2006 itself. He has deposed that he reached the house of Sant Raj Bind, who was not there. He also raided the house of Vijay Mal Ram and arrested him. He confessed his guilt and gave his confessional statement which was recorded by him in presence of Sayendra Singh, PW 9, who had also put his signature over the same. That confessional statement Page 1741 has been proved as Exhibit 4. He has also claimed to have arrested Umesh Yadav and Ashok Yadav and recorded their statements in similar fashion which have been proved as Exhibits 4/1 and 4/2. These statements had been signed by the concerned accused persons as well as by PW 9. After recording confessional statements, he contacted the Sub Divisional Officer, Hathuwa on telephone and requested for deputation of Magistrate. PW 12, the BDO, Uchaka Gaon was deputed for that purpose. He went to Sukh Nahar Sareh along with the three apprehended accused, the BDO and the raiding party and at the indication of the three accused, he reached the wheat field which was irrigated and the soil was wet. The accused persons indicated the place which was dug. It was filled with soil recently. The soil was removed in presence of the Magistrate leading to recovery of the dead body which was buried 2-3 feet below the surface. A muffler of dust colour was also found in the wheat field which was identified as of Sant Raj Bind which was said to be the weapon by which the deceased was strangulated. He has proved the said muffler as Material Exhibit 1. He prepared a seizure list for the same which he proved as Exhibit 5. The inquest report was signed by the BDO and the same has been marked as Exhibit 6. He inspected the place of occurrence where the dead body was found. He sent the dead body for postmortem examination, received postmortem report and submitted chargesheet against the three arrested accused. Accused Sant Raj Bind surrendered in court on 30.1.2006 and he submitted another chargesheet against him also. Nothing material has been elicited in cross-examination of this witness.
15. PW 12, Banke Bihari Choudhary is the Block Development Officer who received orders of Sub Divisional Officer, Hathuwa to go to the PO village and to get the buried dead body dug out in his presence. On such orders, he reached the village at 7.30 pm. By that time the Superintendent of Police, Dy. Superintendent of Police, Officer Incharge of the concerned PS and many other officers were present there. The three accused persons had also been detained there. He and others went to Sukh Nahar Sareh on their clue and as per statements of the accused persons, the Chaukidar dug the north-east corner of the wheat field belonging to Mian. The field was watered. He claims to have prepared the inquest report of the dead body and has proved the same as Exhibit 6. He has further deposed that PW 10, Devendra Singh and PW 4, Paras Nath Pal, identified the dead body. A muffler of dust colour was recovered at a distance of 8-10 yards from the place of occurrence. A seizure list in respect of muffler was prepared. The muffler was identified by the persons present there, namely, PW 4, Paras Nath Pal, PW 10, Devendra Singh and one Ramakant Prasad in presence of the witnesses and he prepared its identification report. He has clarified that a literate constable of the police station prepared the identification report in his presence and he as well as three identifying witnesses put their signatures over the same. He has proved his signature on the identification report as Exhibit 1/3. He also identified the three accused persons in dock as the accused persons at whose instance the dead body was dug out. There is nothing in the cross-examination of this witness to discredit his testimony.
16. PW 13, Bachan Ram, is a co-villager of the informant who has claimed that on the date of occurrence i.e. 1.1.2006 in the noon hours he had gone to a place Dewan Parsa More and there he saw accused Sant Raj Bind and Ashok Yadav talking to each other at a little distance from the triangular road junction. Both these accused, according to this witness, are friends and live together. He has also deposed Page 1742 that a dispute had occurred between the informant and Sant Raj Bind on the issue of CD (Video Player). He has identified all the three accused in court. He has admitted that he could not hear the subject matter of talk between Sant Raj Bind and Ashok Yadav.
17. PW 14, Constable Harikishore Singh is a formal witness who has proved the report of identification of muffler which was seized in this case as Exhibit 9.
18. As noticed earlier, DW 1, Jagbandhu Prasad, DW 2 Shyamdei Devi and DW 3, Badri Choudhary have been examined on behalf of the defence for disputing the fact that the three accused were arrested prior to recovery of the dead body on 3.1.2006 at 7.00 pm. These witnesses have claimed that police arrested Ashok and Umesh at around 9 or 9.30 pm on 3.1.2006. DW 1 is cousin brother of appellant Sant Raj, DW 2 is sister of grandfather of Umesh Yadav and DW 3 has also admitted relationship with accused Umesh and Ashok. Their evidence does not inspire confidence and credibility in view of the fact that these witnesses are interested from the side of defence and the evidence of prosecution witnesses, particularly the official witnesses is much superior in quality. DW 4, Abhay Mishra, is a stranger from another village. He has claimed that on 1.1.2006, he was present at the clinic of one Dr. Vijay Singh. According to him, Ramakant Bind of Songarhwa was also admitted there for Hydrosil operation and his son, accused Sant Raj Bind was present there to attend him. He claimed that he was in the clinic from 1st to 6th January. He has also claimed that accused Sant Raj Bind was seen in trouser, shirt and gamcha but not with a muffler. In cross-examination he has admitted that Sant Raj Bind is not his friend nor he has any association with him; he cannot say what type of dress Sant Raj wears; the doctor does not possess MBBS degree; he was attending to his sick Mausi and that he had come to adduce evidence at the asking of Ramakant Bind, father of appellant Sant Raj Bind. Even this witness does not inspire confidence and he is of no use for establishing alibi of Sant Raj Bind who has himself not claimed the defence of alibi either in his statement under Section 313 of the CrPC or through suggestion to the witnesses. Moreover, DW 4 has not deposed that Sant Raj Bind was present throughout the day and confined in the clinic of the concerned doctor and could not have gone to village Songarhwa. This witness or any material on behalf of defence does not show the distance of village Songarhwa from the clinic of Dr. Vijay Singh at Mishra Batraha and it is also not established that there was no other person in the family of Sant Raj Bind to take care of Ramakant Bind and so Sant Raj Bind could not have been free from clinic to come to the village. According to PW 3, Mishra Batraha is at a distance of only 3 kilometers. Further, operation of Hydrosil is not a very serious operation so as to require attendant's presence at all times. Hence, no significance can be attached to the deposition of the DW 4 for the purposes of defence.
19. As noticed earlier, in this case there is no direct eye witness regarding kidnapping and murder of the deceased boy. But as would appear from the deposition of prosecution witnesses noticed earlier, the following material facts and circumstances have been brought on record by the prosecution:
1. In the evening of 1.1.2006, deceased Rahul had proceeded from his Bathan to attend call of nature in the fields towards west of the Bathan.
2. PW 1 had seen some of the accused persons near the Bathan and PWs 2 and 6 had seen all the accused going behind the deceased towards west. According to PW 2, all of them turned their faces when he passed by them.
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3. During search in the village, the accused persons were found absent from their houses even till the next morning after the occurrence.
4. Police made some interrogations in the night on 2.1.2006 after recording of Fardbeyan against unknown in which informant had expressed his apprehension that the deceased might have been kidnapped for ransom.
5. In the afternoon of 3.1.2006, police arrested the accused Vijay Mal Ram and his confessional statement (Exhibit 4) was recorded at 3.00 pm. Police also arrested Umesh Yadav and Ashok Yadav soon thereafter and their confessional statements were recorded at 5 pm and 6.15 pm (Exhibits 4/1 and 4/2).
6. On the basis of disclosure made by the three apprehended accused the dead body was discovered by the police in presence of several witnesses including PW 12, the BDO, after digging of a place pointed out by the three apprehended accused persons.
7. From near the place of recovery of the dead body, a muffler was also recovered by the police which was identified to be of appellant Sant Raj Bind.
8. The doctor has found cause of death to be asphyxia due to strangulation and the injury on the neck of the deceased was, in the opinion of the doctor, by muffler.
9. There was some altercation about six months earlier to the occurrence between some of the accused and some persons on the prosecution side over a CD (Video Player) and later some dispute had arisen due to dashing of motorcycle driven by Jagbandhu Prasad, cousin brother of Sant Raj Bind against mother of PW 9, Satyendra Singh.
10. Initially in the Fardbeyan and even in court, the father of the deceased, PW 8, the informant, suspected that his son had been kidnapped for ransom and that a demand of money was made by Bachcha Choudhary, father of appellant Ashok Choudhary.
20. Out of the aforesaid facts and circumstances proved by the prosecution witnesses, learned Counsel for the appellants has seriously challenged the claim of the prosecution that the dead body and the muffler were recovered on the disclosure made by all the three arrested accused persons as per their confessional statements (Exhibits 4 to 4/2). On behalf of the appellants Umesh Yadav and Ashok Yadav it has been contended that on facts as well as in law it must be held that recovery of the dead body and the muffler was only on the basis of disclosure made by the juvenile accused Vijay Mal Ram because his confession was admittedly earliest in time at 3 pm and, therefore, by that time police knew where the dead body was buried and the alleged disclosure by appellants Umesh Yadav and Ashok Yadav should not be believed and in any case cannot be used against them by taking help of Section 27 of the Evidence Act. In support of this submission learned Counsel for the appellants has placed reliance upon a judgment of the Supreme Court in the case of Raja Khima v. State of Saurashtra which has been recently followed by a Division Bench of this Court in the case of Arun Mandal v. State of Bihar 2008 (1) PLJR 296.
21. No doubt, in the case of Raja Khima (supra) it was held that discovery of incriminating articles alleged to have been recovered on the basis of disclosure by an accused is inadmissible in evidence if the police already knew where they were Page 1744 hidden. In the case of Arun Mandal that principle was invoked to confine the discovery of dead body on the basis of disclosure made by another co-accused 26 hours prior to arrest of appellant Arun Mandal. In that case, the fact that recovery was delayed for 26 hours was accepted to be a basis for a reasonable doubt about the prosecution case that Arun Mandal had also made a disclosure. In that case it was also held that the place of concealment was already known to the police and hence, the use of Section 27 of the Evidence Act in respect of alleged disclosure of Arun Mandal was not found safe. There is no quarrel with the aforesaid proposition of law but the facts of the present case are quite different in as much as in the present case there is nothing to doubt that after arrest of accused Vijay Mal Ram and recording of his confession (Exhibit 4) at 3 pm, appellants Umesh Yadav and Ashok Yadav were also arrested within a short time and their confessions were recorded at 5 pm and 6.15 pm (Exhibits 4/1 and 4/2) on the same date. The IO did not proceed to recover the dead body by himself and instead he made a request for deputation of a Magistrate and only on arrival of the Block Development Officer, PW 12, the dead body was recovered in presence of the BDO and higher police officials. The inquest report (Exhibit 6) shows that the inquest was done at 7.30 pm on 3.1.2006 by the Magistrate PW 12. Clearly, in the facts of the case, there was no time lag in arrest of the three accused persons on 3.1.2006 and in recording of their confessional statements which are almost contemporaneous. There is reliable evidence to show that all were taken together on that date itself to the place indicated by them where the dead body was found buried inside earth. The incriminating articles, the dead body and a muffler were recovered, pursuant to the disclosures made by them, in presence of reliable witnesses including PW 12, the Block Development Officer. In such circumstances, there is nothing in law to prevent application of the principle embodied in Section 27 of the Evidence Act to the disclosure made by appellants Umesh Yadav and Ashok Yadav while they were in police custody. In the facts of the case, there is no scope to entertain a doubt that before discovery of the dead body from inside the earth on the basis of disclosure made by the appellants Umesh Yadav and Ashok Yadav, the police already knew where the dead body was concealed. It would be unsafe and impracticable to extend the principle of prior knowledge on the part of the police of the place where incriminating article is concealed to cover a mere information or disclosure by more than one accused prior to the actual knowledge and discovery of the incriminating articles. In appropriate cases where there is unreasonable time lag between disclosure made by different accused persons there may be scope to entertain a reasonable doubt that the police may have actual knowledge but in all cases, as a principle of law it cannot be said that simply because disclosure or information given by different accused persons is recorded by the police one after another within a reasonable short time, only the disclosure made by the person arrested or interrogated first is covered by Section 27 of the Evidence Act. This will lead to an unnecessary and undesirable burden on the part of the police to arrest all the accused persons together and to subject them to a common interrogation or else the wholesome principle of Section 27 of the Evidence Act will not be available against persons being arrested or interrogated later in time. In the facts of the case I find no merit in the aforenoted submissions on behalf of the defence.
22. On behalf of the appellants it was seriously contended that the claim of some of the witnesses such as PWs 1, 2 and 6 that they had seen the accused persons following the deceased should not be given any credence in view of deposition of Page 1745 the IO, PW 7 that no witness had told him that he had seen the accused persons following the deceased or that the accused persons were not present in their houses when the witnesses went to look for them during search. It is a fact that the names of the accused persons even as a suspect does not find mention in the Fardbeyan lodged in the evening hours of 2.1.2006 and the materials which led to the arrest of the accused persons by the IO on 3.2.2006 are also not recorded by the IO in the statement of witnesses. Ordinarily, adverse inference may have been drawn and such claim of witnesses made in court could have been doubted. But there are few good reasons and circumstances in this case for not drawing any adverse inference in respect of the aforesaid matter. From the Fardbeyan as well as from the deposition of the informant in court it is clear that the name of the suspects was not disclosed initially because the informant was of the expressed view that his son has been kidnapped by unknown persons. Before recording of the confession of the accused persons and discovery of the dead body, the witnesses or the informant cold only have doubts in respect of the accused persons but in a case of kidnapping the close relations avoid causing risk to the life of the victim by naming the suspects only on suspicion unless recovery is certain or imminent. Further, the implication of some facts like dispute over CD which had taken six months earlier or a dispute over accident by motorcycle which had also happened much earlier may not be within the grasp of witnesses and family members of the victim of kidnapping. Even observation by some persons that the accused were going in the same direction behind the deceased, may not appear of much significance till it is certain that the deceased has actually vanished or met with some untoward incident. These facts become significant and material in hindsight at a later period of time but they may not appear material at the initial stage when a boy of 14 years age has disappeared from the village which may be for many reasons. Hence, such omissions by the witnesses in their statements recorded soon after the disappearance of the victim cannot always be treated as omission of material facts so as to constitute contradictions vis-a-vis their statements in court after lapse of some time as by then the significance of such minor incident is likely to be realized by any man of general prudence. In the present case, after recovery of the dead body pursuant to arrest and confession of three accused persons on 3.1.2006, the chargesheet against the arrested accused persons was submitted on the next day i.e. 4.1.2006. Thus, leaving no time for the witnesses, particularly close relations of the victim to express doubt against the suspects on the basis of materials which may appear to be of trivial nature till the fate of the victim is known. For the aforesaid reasons, the omission on the part of witnesses to mention the fact to the IO that some of them had seen the accused persons going behind the deceased or that the accused persons were not present in their houses when they went to enquire from them, are not found material. Such omissions, in the facts of the case, do not amount to contradiction for the purpose of Section 162 of the Code of Criminal Procedure. In any event, they are not material, as explained above.
23. Lastly, it was contended that the prosecution in this case has failed to allege and prove a reasonable motive. It is a fact that the informant, who is father of the victim has not alleged any motive except an apprehension that the victim might have been kidnapped. In court, he has deposed and has been supported by PWs 6 and 10 that suggestion for payment of money was made by Bachcha Choudhary father of appellant Ashok Yadav. Some witnesses have deposed regarding an occurrence Page 1746 involving non-return of CD (Video Player) and regarding a motorcycle dashing against mother of PW 9 with a view to suggest that these incidents leading to altercation in the past between the parties might have prompted the accused persons to commit the crime. Whether such incidents constitute sufficient motive or not is difficult to be found but this much is evident from the facts brought on record by the prosecution that relation between the accused persons on the one side including father of appellant Ashok Yadav and the informant and his family members on the other was strained from before and apparently the crime may have been committed by way of a message to the prosecution party and to satisfy revenge for trivial incidents. There is every possibility of such a crime being committed even for demand of ransom in future on account of disappearance of a young boy.
24. Be that as it may, in view of incriminating materials recovered pursuant to disclosure made by appellants 1 and 2 which included not only the dead body of the boy buried inside earth in a wheat field at lonely place but also a muffler belonging to appellant Sant Raj Bind and their failure to give any explanation as to how they got knowledge of such incriminating material as the dead body buried and concealed as well as other circumstances proved by the prosecution witnesses, it is found that the charges against the three appellants have been proved by the prosecution beyond reasonable doubt. There is no good reason to take a different view in the matter than that taken by the trial court.
25. So far as award of death sentence to the appellants is concerned, on going through the facts of the case and in view of lack of any direct evidence, it is not possible to treat this case as rarest of rare and to award death sentence which is to be awarded only in exceptional cases after recording reasons for the same. Hence, considering the aforesaid facts, the young age of the appellants, who were between 20-25 years of age at the time of occurrence and the chance of their possible rehabilitation, the death sentence awarded to the appellants is commuted to life imprisonment.
26. The Reference is thus answered in negative. With the aforesaid modification in sentence, the appeal of three appellants is dismissed.