Patna High Court
Rajan Tiwary vs State Of Bihar Thru.C.B.I on 17 May, 2013
Author: V.N. Sinha
Bench: V.N. Sinha, Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.418 of 2008
(Against the judgment of conviction and order of sentence dated 14.02.2008
passed by Additional Sessions Judge XI, Patna in Sessions Trial No. 976 of
1999)
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Rajesh Ranjan @ Pappu Yadav, son of Sri Chandra Narayan Prasad, resident of
Court Station Road, P.S. K. Hat Purnea, district Purnea, Bihar, presently lodged at
Jail No.3, Central Jail, Tihar, New Delhi
.... .... Appellant/s
Versus
The State of Bihar through the C.B.I.
.... .... Respondent/s
With
Criminal Appeal (DB) No. 240 of 2008
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Anil Kumar Yadav, son of Hari Yadav, resident of mohalla Moranga, police station
Moranga (K. Hat), district Purnea
.... .... Appellant/s
Versus
The State of Bihar through the C.B.I
.... .... Respondent/s
With
Criminal Appeal (DB) No. 361 of 2008
===========================================================
Rajan Tiwary, son of Vishwa Jeevan Tripathy, resident of village Sahgaura, P.S.
Gagaha in the town and district of Gorakhpur (Uttar Pradesh)
.... .... Appellant/s
Versus
The State of Bihar through the C.B.I
.... .... Respondent/s
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Appearance :
(In CR. APP (DB) No. 418 of 2008)
For the Appellant/s : M/s. Shrikant V. Bhat, Rakesh Kumar Singh, Ravi
Sharma, Rajesh Ranjan, J. John, Ajit Kumar Ojha,
Nutan Mishra, Pandey Sanjay Sahay, Advocates.
(In CR. APP (DB) No. 240 of 2008)
For the Appellant/s : M/s. Ramakant Sharma, Sr. Advocate, Ajeet Ojha,
Nutan Mishra, Advocate.
(In CR. APP (DB) No. 361 of 2008)
For the Appellant/s : M/s. Surendra Singh, Sr. Advocate, Dr. Abhishek
Priyadarshi, Advocate
(For C.B.I. in all appeals) : M/s. Rakesh Kumar Khanna, Sr. Advocate (Additional
Solicitor General of India for C.B.I), Harsh Prabhakar,
Anando Mukherjee, Bipin Kumar Sinha (Standing
Counsel for C.B.I.), Prabhu Narayan Sharma, Sunil
Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 2
Kumar Ravi, Shashi Shekhar Kumar Prasad, Advocates.
(For P.W. 9 in all appeals) : M/s. Jitendra Singh, Sr. Advocate, Soni Shrivastava,
Amit Prakash, Ravi Bhardwaj, Amit Pawan,
Advocates.
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CORAM: HONOURABLE MR. JUSTICE V.N. SINHA
And
HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE V.N. SINHA)
Date: 17-05-2013
V.N. Sinha, J. These three appeals are filed against the judgment and order
dated 14.02.2008 passed by Additional Sessions Judge-XI, Patna in
Sessions Trial No. 976 of 1999 whereby the three appellants, namely,
Rajesh Ranjan @ Pappu Yadav, Anil Kumar Yadav and Rajan Tiwari
have been convicted under Section 302 read with Section 120(B),
302/34, 302/34 and 307/34 of the Indian Penal Code and Section 27 of
the Arms Act respectively and sentenced to undergo rigorous
imprisonment for life as also to pay fine of Rs.10,000/- each, in default
of payment of fine to further undergo rigorous imprisonment for one
year. Appellant Rajan Tiwary has been further directed to undergo
rigorous imprisonment for seven years each for the offence under
Sections 307/34 I.P.C. and 27 of the Arms Act. The sentences, however,
has been directed to run concurrently.
2. Prosecution case as set out in the fardbeyan, Ext. 27 of
Kalyan Chandra Sarkar, P.W. 8 recorded by Sri A.K. Jha, P.W. 56
Circle Inspector, Sadar Purnia at the residence of late Ajit Sarkar on
Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 3
14.6.1998at 17.45 hours is that informant came to the house of his brother Ajit Sarkar in the morning between 7-8 hours, was taking stroll outside the house of his brother at about 4.30 P.M.(16.30 hours) two comrades of his brother Masudan Rishi, P.W. 9 resident of Kaliganj and Lal Bahadur Rishi, P.W. 10 resident of Khakibari also joined him. While talking to the two comrades informant came ahead of Kali flour mill near the school he saw a motorcycle parked on the road. Near the motorcycle two persons (1) Jawahar Yadav, resident of Purnia and (2) Abdul Sattar, resident of Kaliganj were seen. Abdul Sattar signalled the car of his brother Ajit Sarkar coming from opposite direction to stop. The car stopped, by then (3) Diwakar Chaudhary 4) Pappu Dev came on motorcycle from the front, (5) Bipin Singh and 6-7 others variously armed also came in a car and resorted to indiscriminate firing. The two persons who signalled the car to stop also fired from rifle. Having seen the occurrence informant asked Masudan Rishi as to what is happening and raising alarm came back towards the village. The assailants escaped towards the N.H., the direction from which they had come. Meanwhile, many others also came and saw the assailants running away. Informant along with others went near the car and saw his brother Ajit Sarkar (2) Asfaq Alam of Mahmadia Estate (3) Hirendra Sharma, resident of Sausa Adampur dead, Bodyguard Ramesh Oraon seriously injured, who was taken to the hospital by the villagers. In the penultimate paragraph of Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 4 the fardbeyan informant claimed that accused named in the fardbeyan conspired to kill his brother and others as also to grievously hurt the Bodyguard. In the last paragraph of the fardbeyan informant further stated that statement given by him has been read over, read and understood by him and having found the same to be correct put his signature over the fardbeyan in Hindi. Besides the informant fardbeyan has also been signed by Lal Bahadur Oraon, P.W. 10 and Bilin Chandra Sarkar (not examined) as witness of the fact that fardbeyan has been scribed by Inspector A.K. Jha, P.W. 56 on the statement of the informant. Sri A.K. Jha, P.W. 56 having recorded the fardbeyan forwarded the fardbeyan to Officer in Charge, Khajanchi Hat P.S. to institute a case under Sections 302/34, 120(B) of the Indian Penal Code and Section 27 of the Arms Act and took up the investigation. In the light of the fardbeyan Officer in charge, K. Hat P.S. registered K. Hat P.S. Case No.230/98 dated 14.6.1998 at 10 P.M. under Sections 302/34, 120(B) I.P.C. and Sections 27 of the Arms Act, Ext.31 stating that Inspector A.K. Jha has already taken up investigation of the case under order from S.P., Purnia. A.K. Jha having recorded the fardbeyan inspected the place of occurrence and found three empty cartridges of A.K.-47, which were seized by him vide seizure list Ext. 26. The inquest of the three dead body was also made by the I.O. A.K. Jha vide Exts. Y, Y/1 and Y/2. Injured having been shifted to the hospital was Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 5 examined by Dr. R.D. Raman, P.W. 15 vide injury report, Ext. 24. In the night between 14-15.6.1998 further statement of the informant and statement of the two eye witnesses Madhusudan Rishi and Lal Bahadur Oraon was recorded reiterating the contents of the fardbeyan. The house of the accused named in fardbeyan was also raided in the same night but none was found at their residence. There was a public outcry after the incident and only upon the visit of Sri Lalu Prasad Yadav body of Ajit Sarkar was allowed to be taken for post mortem. Post mortem over the dead body of the three deceased was conducted on 15.6.1998 by Dr. B.K. Sinha, P.W. 32 vide Exts. 13, 13/1, 13/2. F.I.R. of K. Hat P.S. Case No. 230/98 was received in the court of C.J.M., Purnea on 16.6.1998 but no particular time of its dispatch by the Investigating Officer, P.W. 56 and receipt by Judicial Magistrate is recorded over the same. On 16.6.1998 the Government of Bihar issued notification no.492/H.S. dated 16.6.1998 expressing its resolve to appoint a Commission of enquiry in terms of Section 3 of the Commission of Enquiry Act, 1952 to be headed by a retired High Court judge to be nominated by Hon'ble the Chief Justice of the Patna High Court. Kalyan Chandra Sarkar, P.W. 8 furnished on 22.6.1998 the alias name of accused no.5 of K.Hat P.S. Case No.230/98 to the I.O. of the said case along with his address, whereafter Bipin Singh was arrested and remanded to judicial custody on 23.6.1998. Smt. Madhvi Bose (Sarkar) Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 6 wife of deceased Ajit Sarkar made a written request to Hon'ble the Chief Minister, Bihar on 1.7.1998 to transfer the investigation of K.Hat P.S. Case No.230/98 to Central Bureau of Investigation (hereinafter referred to as the C.B.I.) During investigation of K. Hat P.S. Case No. 230/98 Smt. Madhvi Sarkar, wife of the deceased Ajit Sarkar filed application under Section 452 Cr.P.C. before C.J.M., Purnea on 19.7.1998 for release of Ambassador Car bearing Registration No. BHK-1426 which was allowed under order dated 25.7.1998 and the car was handed over to Smt. Madhvi Sarkar. While the investigation of K. Hat P.S. Case No.230/98 continued State Government issued notification dated 11.8.1998 under Section 6 of the Delhi Special Police Establishment Act 1946, Ext. 3 granting its consent for investigation of K. Hat P.S. Case No.230/98 by the C.B.I. While Government of India considered the request made by the State Government under notification dated 11.8.1998, Purnia district police recorded the statement of one Sanjay Rai under Section 164 Cr.P.C. on 12.08.19998 and submitted charge sheet dated 20.9.1998 on 21.9.1998 in the court of Chief Judicial Magistrate, Purnia finding the accusation true against Bipin Singh @ Bipin Chaudhary the arrested accused and four others named in the fardbeyan showing them absconders. From perusal of charge sheet, it appears that Purnia police continued the investigation against the suspects named by Sanjay Rai in his statement recorded under Section Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 7 164 Cr.P.C. on 12.8.1998 including these three appellants. C.J.M., Purnia having perused the charge sheet took cognizance of the offences found true by Purnia police in charge sheet dated 20.9.1998 under order dated 23.9.1998 summoned the accused sent up for trial i.e. Bipin Singh, the four absconders and kept pending the supplementary investigation against 11 persons, namely, (1) Pappu Yadav (2) Harish Chaudhary (3) Amar Yadav (4) Prabhat Yadav (5) Pawan Yadav (6) Pankaj Yadav (7) Santosh Yadav (8)) Raju Yadav (9) Rajan Tiwary (10) Manoj Yadav and (11) Anil Yadav.
3. Government of India under notification dated 28.9.1998, Ext. 42 entrusted investigation of K.Hat P.S. Case No.230/98 to the C.B.I. C.B.I. having taken the investigation of K.Hat P.S. Case No.230/98 registered on 12.10.1998 First Information No. RC 12(S)/98- SIC-IV/New Delhi, Ext. 37/1 under the signature of Sri Harbansh Singh, S.P., C.B.I. (not examined) incorporating the contents of fardbeyan of K.Hat P.S. Case No.230/98. After registration of RC 12(S)/98-SIC-IV/New Delhi, Ext. 37/1 investigation of the said case was entrusted to Sri N.H. Kharayat, Dy. S.P., C.B.I., P.W. 61 and Inspector M.L. Meena, P.W. 57. The investigating team reached Purnia on 21/22.10.1998 for conducting further investigation and met D.M., S.P., Purnea and P.W. 56 who was Investigating Officer of K. Hat P.S. Case No. 230/98 and asked P.W. 56 to hand over the case record, which Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 8 was handed over to P.W. 61 on 23.10.1998. P.W. 61 recorded the statement of Ravindra Nath Singh, Kalyan Chandra Sarkar, Madhusudan Rishi and Lal Bahadur Oraon, P.Ws. 7, 8, 9 and 10 on 25.10.1998, 24.10.1998, 29.10.1998 and 28.10.1998 respectively. While making statement to the I.O. of C.B.I., P.W. 61 P.W. 8 disowned his statement recorded on 14.6.1998 at 5.45 P.M. on the basis of which fardbeyan, Ext. 27 was recorded by Inspector A.K. Jha, P.W. 56. He also disowned his re-statement made before A.K. Jha during the night between 14-15.6.1998 under Section 161 Cr.P.C. In the statement made before the I.O., C.B.I. P.W. 8 claimed that while he reached ahead of Kali Flour Mill near culvert along with P.Ws. 9, 10 he saw Ajit Sarkar coming in his white Ambassador car bearing No.BHK-1426 from a distance of 100-150 yards. He further claimed that a red bullet motorcycle having two occupants intercepted the car followed by another black Yamaha motorcycle also occupied by two persons stopped on the right side of the car. The pillion rider on the red bullet motorcycle shot at the driver of the car. The driver of bullet motorcycle kept the motorcycle in start position. The pillion rider of black Yamaha motorcycle resorted to indiscriminate firing on the person of Ajit Sarkar with a weapon which appeared like A.K. 47. The accused driving Yamaha motorcycle was firing from a small weapon. According to P.W. 8 accused persons riding the motorcycle killed the driver of the car Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 9 Hirendra Sharma, Ajit Sarkar and Asfaq Alam sitting on the rear seat of the car and injured Ramesh Oraon, Bodyguard sitting in the front next to the driver. According to P.W. 8 after the occurrence many people gathered at the place of occurrence. The dead bodies and the injured were taken to hospital in Ambulance. The dead body of Ajit Sarkar was brought to his residence in the night of 14.6.1998. He further claimed before the I.O., C.B.I. that local police arrived next day on 15.6.1998 between 10-11 A.M. to enquire from him about the incident. P.W. 8 declined to make any statement before the local police but gave the local police blank paper with his signature as per the direction of the police officer who had come to take his statement mentioning 14.6.1998 as the date beneath his signature. P.W. 8 identified his signature over the fardbeyan, Ext. 27 which was marked as Ext. 1/4.
4. P.Ws. 9, 10 stated before the I.O., C.B.I. that they had come to the residence of Ajit Sarkar on 14.6.1998 at about 4 P.M. as Sri Sarkar had called them for providing hand pump but they could not meet Sri Sarkar. P.W. 8 informed them (the witnesses) that Sri Sarkar had gone to village Tharhara for panchayati. P.Ws. 9, 10 along with P.W. 8 then decided to return to their village Rani Patra. While returning P.Ws. 8 to 10 having come ahead of Kali flour mill near culvert saw a white Ambassador car bearing No.BHK-1426 followed by red bullet motorcycle driven by accused Anil Yadav and Harish Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 10 Chaudhary sitting as pillion rider. They also saw a black Yamaha motorcycle driven by Amar Yadav over which Rajan Tiwary was the pillion rider stopping on the right side of the car. Anil Yadav kept the red bullet motorcycle in start position. The other three i.e. the driver of the black motorcycle and the pillion riders of red bullet, black motorcycle resorted to indiscriminate firing killing the driver of the car Harendra Sharma, Ajit Sarkar and Asfaq Alam sitting on the rear seat of the car as also inflicted grievous injury on the person of Ramesh Oraon, P.W. 25 Bodyguard sitting in the front next to the driver. It would appear from the statement of P.Ws. 8 to 10 made before the C.B.I. investigator that they gave a consistent description of an unknown assailant, who was later identified as Rajan Tiwary upon arrest and consequent disclosure made by him in Delhi. Having recorded the statement of P.Ws. 8, 10 the C.B.I. informed C.J.M., Purnia on 28.10.1998 about registration of RC 12(S)/98-SIC-IV/New Delhi, Ext. 37/1 incorporating the contents of the F.I.R. of K.Hat P.S. Case No.230/98 and the fact that C.B.I. is investigating the said case. Sri Abhijit Day, P.W. 28 Senior Scientific Officer-II, CFSL, C.B.I., New Delhi submitted report no.690 dated 23.12.1998, Ext. 9 with regard to three fired cartridges recovered at the spot stating that shots were fired from single 7.62 M.M. assault rifle. S.P., C.B.I. (SIC-IV), New Delhi vide his letter dated 5.1.1999 signed on 6.1.1999, Ext. 5/6 wrote to Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 11 General Manager (Vigilance), MTNL, New Delhi asking for the name of the subscriber of telephone nos. 3730767 and 3736358 including the print out of the calls made from those numbers during the period between 14.4.1998-31.12.1998. Sri K.K. Nayar, P.W. 12 S.D. Vigilance (MTNL) on 15.1.1999 submitted call records of telephone no. 0113730767 Ext. 3/4 and 0113736358 Ext. 3/5 which were installed at Delhi residence of Rajesh Ranjan.
5. Delhi police arrested Rajan Tiwary on 12.2.1999 in connection with R.K. Puram P.S. Case No.122/99 registered for the offences under Section 25 of the Arms Act. After arrest Rajan Tiwary was interrogated on 12.2.1999 by the Crime Branch in Delhi (R.K. Puram) P.S. Case No.122/99, he made disclosure pertaining to K. Hat P.S. Case No.230/98. Rajan Tiwary was produced on 13.2.1999 in the court of Sri K.S. Mohi, Metropolitan Magistrate, Patiala House in connection with R.K. Puram P.S. Case No.122/99 vide remand application dated 13.2.1999, Ext. F/4. Perusal of remand application dated 13.2.1999 filed by S.I. Palbindar Singh of Special Team, Crime Branch indicate that Rajan Tiwary was arrested from house no.14-D Firoz Sah, Road, New Delhi and after his arrest he made disclosure involving himself in murder of Ajit Sarkar, M.L.A., C.P.I. in Purnia, Bihar. He also disclosed that he has kept one pistol in House No.558-A, Sector-3, R.K. Puram, Delhi. Acting upon disclosure made by Rajan Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 12 Tiwary one 7.63 pistol make LLAMA, 15 live cartridges and other articles were seized. It also appears from Ext. F/4 that investigation of R.K. Puram P.S. Case No.122/99 is pending and Rajan Tiwary be remanded to 14 days' judicial custody. In the light of the prayer made in the remand application dated 13.2.1999, Ext. F/4 Rajan Tiwary was remanded to judicial custody until 26.2.1999.
6. According to learned counsel for appellant Rajan Tiwary P.W. 61 obtained illegal custody of Rajan Tiwary on 13.2.1999 from S.I. Palbindar Singh, as would appear from the following endorsement ―received accused in muffled condition with warrant‖ made by P.W. 61 in the margin of petition dated 13.2.1999, Ext. F filed by S.I. Palbindar Singh on the basis of which the Metropolitan Magistrate remanded accused Rajan Tiwary to judicial custody till 26.2.1999. It is submitted that bare perusal of Exts. F/4, F would indicate that S.I. Palbindar Singh had filed petition dated 13.2.1999 before Sri K.S. Mohi, Metropolitan Magistrate, Patiala House for obtaining judicial remand of Rajan Tiwary for 14 days i.e. until 26.2.1999 but P.W. 61 having interpolated the name of the Metropolitan Magistrate from K.S. Mohi to Duty Magistrate obtained illegal custody of Rajan Tiwary until 23.2.1999 during which period subjected him (Rajan Tiwary) to sustained interrogation by moving him from Delhi to Purnia and back. During the period of sustained interrogation search warrant was also obtained on Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 13 17.2.1999 to search the house of the appellants. From Delhi house of accused Rajesh Ranjan @ Pappu Yadav one photograph, material Ext. VII was seized vide seizure memo Ext. 39 in which appellant Rajesh Ranjan @ Pappu Yadav, his wife and child are seen with appellant Rajan Tiwary. Appellant Anil Yadav was called to C.B.I. camp office at Purnia on 17.2.1999, arrested and produced before the C.J.M., Purnea on 18.2.1999 who remanded him to C.B.I. custody for 10 days under order dated 18.2.1999 passed in K. Hat P.S. Case No.230/98. Anil Yadav made disclosures on the basis of which red bullet motorcycle was recovered from his house. He was again produced before the C.J.M., Purnea on 28.2.1999 in K. Hat P.S. Case No. 230/98 as suspect. Call details of Katihar P.C.O. booth no.34679 was obtained under Memo No.18.2.1999, Ext. 3 which was issued under the signature of Ramashray Rajak, P.W. 6 S.D. Telephone, Katihar. Appellant Rajan Tiwary also made disclosures on 18/17.2.1999 leading to recoveries vide Exts. 1/8, 1/9, 1/10. Appellant Rajan Tiwary was produced before the Chief Metropolitan Magistrate, Delhi on 22.2.1999 and a petition, Ext. 41 was filed to examine Rajan Tiwary under Section 164 Cr.P.C. Chief Metropolitan Magistrate, Delhi endorsed the said petition to Sri G.S. Saini, Metropolitan Magistrate, P.W. 59. Appellant Rajan Tiwary with muffled face was thereafter produced by I.O., P.W. 61 before Sri G.S. Saini at 12.30 P.M. who sent all the police personnel out of court Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 14 and made Rajan Tiwary to sit in his chamber. Sri Saini explained Rajan Tiwary that he is not bound to make his statement. Sri Saini also informed Rajan Tiwary that if he makes the statement the same shall be used against him as evidence. Rajan Tiwary, however, insisted to make the statement. Sri Saini thereafter gave Rajan Tiwary one hour time to think over the matter again. Sri Saini again asked Rajan Tiwary in his chamber at 1.15 P.M. whether he wants to give confessional statement. Rajan Tiwary stated that he wants to bring real culprit to book and he is making statement voluntarily. Sri Saini again warned Rajan Tiwary that he is not bound to make confessional statement and his statement shall be used as evidence against him but Rajan Tiwary persisted again for making statement. Sri Saini thereafter put following questions to Rajan Tiwary. (1) Why do you want to make confessional statement? Answer :- I want to make statement as I want to improve myself and to disclose the identity of the real culprit. (2) Whether you have been pressurized by police or C.B.I. to make statement. Answer :- I have not been pressurized by any one to record statement, which has been recorded as per my own volition. Having put the aforesaid two questions Sri Saini recorded the statement of Rajan Tiwary after writing that he is making confessional statement voluntarily without any force from any quarter in order to make clean breast. After recording the satisfaction Sri Saini recorded the disclosure statement of Rajan Tiwary, which is as follows Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 15 :- ― He is resident of Gorakhpur. M/s. Sri Prakash Shukla and Anand Pandey were the students of different colleges but they new him (Rajan Tiwary). I (Rajan Tiwary) passed intermediate and took admission in D.A.V. College, Gorakhpur. Sri Prakash Shukla and Anand Pandey were then involved in crime and had connections with him (Rajan Tiwary) as every college student desire that he has acquaintance with those who are brash, lout, bully(Dabang). M/s. Sri Prakash Shukla and Anand Pandey were Railway contractors and were in touch with Surajbhan Singh of Bihar. In 1996 M/s. Sri Prakash Shukla, Anand Pandey, Surajbhan Singh, Lalan Pandey committed murder in connection with Railway contract in which he (Rajan Tiwary) was also implicated as he had connections with them. In the last month of the year 1996 Sri Prakash Shukla, Anand Pandey, Surajbhan Singh, Lalan Pandey shot at Ex-M.L.A., Birendra Kumar Sahi, who escaped the assault. His driver, however, was killed. On 31.3.1997 aforesaid persons killed Birendra Kumar Sahi. In both the aforesaid incidents his (Rajan Tiwary) name was also involved, although he was at his village after the death of his grand-mother. In 1998 Sri Prakash Shukla, Anand Pandey, Satwant Rai and one Tiwary(Sudhari) resorted to firing in Dahleez Hotel, Lucknow from A.K.-47 in which Vivek Shukla was killed and Bhanu Mishra leader of Shiv Sena party injured. He (Rajan Tiwary) was also implicated in the said incident as he was absconder. Later Anand Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 16 Pandey, Bablu Tiwary, Hriday Chand Jaiswal snatched Esteem Car in Banaras and resorted to firing in which also, he (Rajan Tiwary) was implicated. On account of fear from the police he (Rajan Tiwary) began to reside at his maternal house in Bihar. In the meantime, Sri Prakash Shukla abducted one Rastogi from Lucknow and in the said case also he (Rajan Tiwary) was implicated. In December, 1997 Devendra Nath, M.L.A., Bihar introduced him (Rajan Tiwary) to Pappu Yadav and to assume air of importance introduced him(Rajan Tiwary) as a veteran criminal. Pappu Yadav lost the election. He (Pappu Yadav) had animosity with Ajit Sarkar as both were Mafia. In the month of May, 1998 Pappu Yadav sent him (Rajan Tiwary) along with M/s. Raju Yadav, Rajendra Yadav and Gopal Yadav to eliminate Ajit Sarkar but he(Rajan Tiwary) came back from the way and informed Pappu Yadav that he(Ajit Sarkar) did not come. On 13.6.1998 Brij Bihari Prasad was killed by Sri Prakash Shukla, Anuj Pratap Singh, Sudhir Tiwary, Lalan Singh in which case also his name (Rajan Tiwary) was involved. To avoid police action he (Rajan Tiwary) went to Purnia along with Pappu Yadav. Pappu Yadav along with his men Harish Chaudhary, Anil Yadav, Amar Yadav had already chalked out a plan for elimination of Ajit Sarkar. He (Rajan Tiwary) reached the residence of Pappu Yadav the same day. He further states that even if he had not gone on the said date Pappu Yadav had to get Ajit Sarkar eliminated on that date. Rajan Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 17 Tiwary having reached Arjun Bhawan of Pappu Yadav took bath. On that date Pappu Yadav was in Delhi. Harish Chaudhary made Rajan Tiwary speak to Pappu Yadav on telephone. Pappu Yadav asked Rajan Tiwary to eliminate Ajit Sarkar and to accompany Harish Chaudhary wherever he goes as per programme which is known to Harish Chaudhary. Four persons, namely, Rajan Tiwary, Harish Chaudhary, Anil Yadav, Amar Yadav moved in Purnia district on Bullet, Yamaha motorcycle following Ambassador car of Ajit Sarkar. When the car reached the brick soling and slowed down firing was made from A.K.- 47, .455, .48 revolver. After killing Ajeet Sarkar and others he (Rajan Tiwary) and others came to the house of Pappu Yadav. Harish Chaudhary kept the arms in a bag. After the occurrence Rajan Tiwary, Amar Yadav came to Katihar. Rajan Tiwary telephoned Pappu Yadav at Delhi from P.C.O. of Naiyar by which time Pappu Yadav was already aware of the killing and asked Rajan Tiwary to go to such place where he is asked to go by his men. Later he (Rajan Tiwary) went to Siliguri and from there to Delhi and resided in the flat of Pappu Yadav. Before coming to Delhi he (Rajan Tiwary) went to Siliguri, Darjeeling and other places. At Delhi Rajan Tiwary resided in the bungalow of Pappu Yadav at 9, Harish Chandra Mathur Lane and thereafter went to Vaishno Devi, Sri Nagar along with Pappu Yadav and his wife and thereafter resided in the flat of Pappu Yadav. Pappu Yadav had Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 18 provided Rajan Tiwary with a cell phone. Later he (Rajan Tiwary) learnt that Pappu Yadav wanted to get him eliminated in encounter in collusion with the officials of the Special Task Force of U.P. Government so that entire evidence is wiped out. Having recorded the statement Rajan Tiwary stated that he wants enquiry to be made and if he is found guilty then be punished.
7. Having recorded the confessional statement of Rajan Tiwary on 22.2.1999 his custody was given to I.O., P.W. 61 who again produced Rajan Tiwary before Chief Metropolitan Magistrate, Delhi on 23.2.1999 when he was remanded to judicial custody in Tihar Jail. Black Yamaha motorcycle bearing registration No. WB72-7109 was seized on 25.2.1999 from Jogbani P.S. vide Ext. 33/2 which was recovered in abandoned condition by Jogbani P.S. on 4.7.1998. Two steel core portions of A.K. 47 bullets were recovered under memo dated 3.3.1999, Ext. 10 from Ambassador Car bearing registration No. BHK 1426 parked at Nitu da's garage, Purnea. After being lodged in Tihar Jail on 23.2.1999 Rajan Tiwary filed undated application addressed to C.M.M., Delhi informing the C.M.M. that he has been implicated in a false case by the Crime Branch of Delhi Police. Perusal of the undated application indicate that while Rajan Tiwary was in police custody he was subjected to extensive beating, torture and other third degree methods as also forced to sign various blank paper, written document Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 19 and false statements. He was also not allowed to meet anyone including press person(s). Having come to jail custody he has learnt from others about his statement which the police got published in newspaper, which is wholly false. He further informed the C.M.M., Delhi that at the instance of Sri D.P. Yadav he has not committed any crime and he has no connection with the murder of Pritam Singh and that he has not taken any money from D.P. Yadav. He is being implicated in the said case at the instance of political leaders in connivance with the police. Having informed the C.M.M., Delhi about the torture in police custody and the design to implicate him in the murder of Pritam Singh Rajan Tiwary requested the C.M.M. to ensure that he is not remanded in the said case, otherwise he is likely to be eliminated in police encounter and requested the C.M.M. to take action against those who have fabricated his statement. Aforesaid application of Rajan Tiwary was forwarded to C.M.M., Delhi by the Deputy Superintendent, Central Jail No. 5, Tihar, New Delhi under letter no. 181 dated 1.3.1999. Rajan Tiwary was produced from judicial custody before Chief Metropolitan Magistrate, Delhi on 9.3.1999 when he was represented by Sri S.A. Hashmi, Advocate and according to counsel for C.B.I. a prominent criminal lawyer of Delhi, C.M.M., Delhi, however, ordered that Superintendent, Central Jail, Tihar may arrange for transfer of Rajan Tiwary to the concerned jail for his appearance before Special Judicial Magistrate, Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 20 C.B.I., Patna on or before 23.3.1999. Rajan Tiwary was transferred to Adarsh Central Jail, Beur, Patna and produced before Special Judicial Magistrate, C.B.I. Patna on 22.3.1999 and remanded to judicial custody. Report no. 141 dated 22.3.1999, Ext. 9/1 was received under signature of Sri Rup Singh, P.W. 33 to the effect that two steel core portions recovered from the car of the deceased on 3.3.1999 were fired from 7.62 M.M. assault rifle. Call records of telephone nos. 23150, 23929 and 23446 installed at Purnea residence of Rajesh Ranjan @ Pappu Yadav were received on 26.3.1999 by the C.B.I. under the signature of S.Z. Hassan, P.W. 11. Report no. 171 dated 1.4.1999, Ext. 9/2 also issued under the signature of Rup Singh, P.W. 33 was received to the effect that multiple holes found in the Ambassador Car of the deceased was caused by passage of 7.62 M.M. bullet. Having come to Patna Rajan Tiwary again filed retraction application dated 31.3.1999 and 21.4.1999 before the Special Magistrate, C.B.I., Patna. Rajan Tiwary was subjected to Test Identification Parade in Adarsh Central Jail, Beur, Patna on 1.5.1999 conducted by Sri Dharmsheel Srivastava, Judicial Magistrate, Ist Class, P.W. 17. P.W. 8 identified the suspect in 5th attempt as would appear from the memorandum dated 3.5.1999, Ext. 7 prepared by the T.I. Magistrate, P.W. 17. C.B.I. submitted charge sheet no. 01 on 10.5.1999 before the Special Magistrate, C.B.I., Patna finding the accusation made against the appellant Anil Yadav and Rajan Tiwary Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 21 to be true. Another T.I.P. was arranged on 12.5.1999 which was conducted by Sri Ravindra Patwari, Judicial Magistrate, Ist Class, P.W. 13 vide T.I. chart, Ext. 6 in which P.Ws. 9 and 10 identified Rajan Tiwary vide T.I. chart Ext. 6. Appellant Rajesh Ranjan @ Pappu Yadav was arrested on 23.5.1999. C.B.I. Magistrate took cognizance of the offence under order dated 16.7.1999 in the light of the charge sheet dated 10.5.1999 and summoned the accused to face trial. C.B.I. filed supplementary charge sheet no. 04 on 19.8.1999 finding the accusation true against appellant Rajesh Ranjan @ Pappu Yadav. I.O. C.B.I., P.W. 61 also filed separate application dated 15.9.1999 for discharge of accused sent up for trial by the Bihar police under charge sheet dated 20/21.9.1998. Special Magistrate, C.B.I., Patna under order dated 15.9.1999 discharged the accused sent up for trial by the Bihar police under charge sheet dated 20-21.9.1998. Additional Sessions Judge-XI cum C.B.I. Court, Patna under order dated 19.08.2000 framed common charges separately against the three appellants. Against Rajesh Ranjan @ Pappu Yadav charge was framed for the offences under Sections 302/34, 307/34, 120-B read with Sections 302, 307 I.P.C. and Section 27 of the Arms Act. Against Anil Yadav charge was framed under Sections 302/34, 307/34, 120-B read with 302, 307 I.P.C. and Section 27 of the Arms Act. Against Rajan Tiwary charge was framed under Sections 302/34, 307/34, 120-B read with 302, 307 I.P.C. and Section Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 22 27 of the Arms Act. The other two accused i.e. Harish Chaudhary and Amar Yadav remained absconding and their trial was segregated. Additional Sessions Judge-XI cum C.B.I. Court, Patna received on 7.1.2002 the entire case records of K. Hat P.S. Case No.230/98 from the court of C.J.M., Purnea in compliance of the order of the High Court dated 11.12.2001 passed in Cr. Rev. No.883 of 2001.
8. In support of the prosecution case following 61 witnesses have been examined. Pratap Yadav P.W. 1, Rasik Hembram P.W. 2, Priyank Mittal P.W. 3, Birendra Prasad Sharma P.W. 4, Bhuneshwar Lal Das P.W. 5, Ramashray Rajak P.W. 6, Ravindra Nath Singh, P.W. 7, Kalyan Chandra Sarkar P.W. 8, Madhusudan Rishi P.W. 9, Lal Bahadur Oraon P.W. 10, S.Z. Hassan P.W. 11, K.K. Naiyar P.W. 12, Ravindra Patwari P.W. 13, Sunil Kumar Singh P.W. 14, Domai Thakur P.W. 15, Shambhoo Prasad Mehta P.W. 16, Dharmsheel Shrivastava P.W. 17, Shailendra Kumar Jha P.W. 18, Ranu Kumar Singh P.W. 19, Subodh Yadava P.W. 20, Rajendra Prasad Goswami P.W. 21, Noor Mohammad P.W. 22, Upendra Shukla P.W. 23, R.K.P. Verma P.W. 24, Ramesh Oraon P.W. 25, Manoj Chaudhary P.W. 26, Mahesh Kumar Malkani P.W. 27, Abhijit Day P.W. 28, B.K. Bhardwaj P.W. 29, A.D.K. Dhand P.W. 30, Dr. Manindra Kumar Singh P.W. 31, Dr. Basant Kumar Sinha P.W. 32, Rup Singh P.W. 33, Rajiva Acharya P.W. 34, Arunmay Samddar P.W. 35, Dinesh Yadava P.W. 36, Uttam Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 23 Sinha P.W. 37, Swapan Kumar Chandra P.W. 38, Gurnam Singh alias Name Singh P.W. 39, Sanjay Kumar alias Sanjay Upadhya P.W. 40, Kunda Singh P.W. 41, Raju Parihar P.W. 42, Manotosh Maitro, P.W. 43, Babul Datta P.W. 44, Shivanath Ghosh P.W. 45, Dilip Kumar Singh P.W. 46, Divya Prakash P.W. 47, Pankaj Kumar Yadav P.W. 48, Chandradeep Sharma P.W. 49, Dr. R.D. Raman P.W. 50, Dr. Durga Nand Mehta P.W. 51, Om Prakash Ramnani P.W. 52, Sukhvindra Singh P.W. 53, Hansraj Pamnani P.W. 54, Pradeep Sarkar alias Fatka P.W. 55, Arvind Kumar Jha P.W. 56, M.L. Meena P.W. 57, Rajiv Chandrola P.W. 58, Gurdeep Singh Saini Saini P.W. 59, Shiva Charan P.W. 60 and Narendra Singh Kharayat P.W. 61. Sub-Inspector Palvinder Singh Chahal of Delhi Police has been examined as court witness no.1. P.Ws. 1, 2, 21, 22, 23, 24, 26, 27, 34, 35, 36, 37, 39, 40, 41, 42, 43, 45, 46, 48, 54 and 55 have been declared hostile. Priyank Mittal, P.W. 3 is the author of letter, Ext. 1/2 wherefrom it appears that Rajesh Ranjan @ Pappu Yadav was allotted quarter during the period between 17.01.1997-21.09.1998 in Harish Chandra Mathur Lane. Birendra Prasad Sharma, P.W. 4 is the brother of deceased Hirendra Sharma and has been tendered for cross-examinaton as he stated about the C.B.I. attrocity, influence and highhandedness for supporting the prosecution case. Bhuneshwar Lal Das, P.W. 5 is the author of letter dated 23.10.1998, Ext. 2 indicating election details of appellant Rajesh Ranjan Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 24 in response to the information sought by the C.B.I. Ramashray Rajak, P.W. 6 at the relevant time served as Sub-Divisional Engineer (Telephone), Katihar who has furnished print out of Katihar telephone booth No. 34679 and telephone no. 33611, Exts. 3, 4. Ravindra Nath Singh, P.W. 7 stated that Rajesh Ranjan @ Pappu Yadav and Ajit Sarkar have political rivalry. The witness further stated that he learnt from P.W. 20 through a chit dated 8.6.1998 that Rajesh Ranjan @ Pappu Yadav hired Rajan Tiwary to kill Ajit Sarkar. Kalyan Chandra Sarkar, Madhusudan Rishi, Lal Bahadur Oraon, P.Ws. 8, 9, 10 are the eye witnesses of the occurrence. They have, however, disowned their statement given to the Inspector, A.K. Jha of Bihar (Purnea) police, P.W. 56 the scriber of fardbeyan of K. Hat P.S. Case No. 230/98 on the statement of informant, P.W. 8 and also further statement of the informant and statement of eye witnesses P.Ws. 9, 10 recorded in the night between 14-15.6.1998. S.Z. Hassan, P.W. 11 is the Divisional Engineer, Purnea who has issued print out of telephone nos. 23150, 23929 and 23446, Exts. 3/1, 3/2 and 3/3. K.K. Naiyar, P.W. 12 has issued telephone print out of Delhi telephone nos. 3730767 and 3736358, Exts. 3/4, 3/5 in response to letter from C.B.I. dated 5.1.1999. Ravindra Patwari, P.W. 13 is the then Judicial Magistrate, Patna who conducted Test Identification Parade on 12.5.1999 and submitted report dated 12.5.1999, Ext. 6 wherefrom it appears that Rajan Tiwary was Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 25 identified by P.Ws. 9, 10. Sunil Kumar Singh, P.W. 14 is the District Secretary of C.P.M. party who was present at the house of Ajit Sarkar on 14.6.1998 at 5.10 P.M. and has stated that it was Subhash Singh who came to the residence of Ajit Sarkar at about 5.10 P.M. and gave information about his killing. He is also witness to the dead body challan of Ajit Sarkar, material Ext. VI. Domai Thakur, Shambhoo Prasad Mehta, P.Ws. 15, 16 had come to Harda for marketing on 14.6.1998 and while sitting in the Tea shop had seen red bullet and black motorcycle taking rounds in the market. Later they also saw the two motorcycles following the white Ambassador car of Ajit Sarkar. Dharmsheel Shrivastava, P.W. 17 is another Judicial Magistrate who conducted second Test Identification Parade on 1.5.1999 and submitted report dated 3.5.1999, Ext. 7. Shailendra Kumar Jha, P.W. 18 is the Crime Reader in the office of Superintendent of Police, Purnea who has proved criminal case history of Rajesh Ranjan @ Pappu Yadav dated 31.10.1998 issued under the signature of the then S.P., Purnea Sri R.S. Bhatti, Exts. 5/1, 5/2 and 5/3. Ranu Kumar Singh, P.W. 19 has his house 10-12 steps away from the place of occurrence. Having heard the sound of firing he came to the place of occurrence and is also witness to the inquest report of Ajit Sarkar. He has further stated that Kalyan Chandra Sarkar arrived 45 minutes after the occurrence and asked the persons present at the place of occurrence as to who is the assailant of his Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 26 brother and others. Subodh Yadava, P.W. 20 also heard that assailant has been hired to kill Ajit Sarkar and Dilip Yadav. Ramesh Oraon, P.W. 25 is the injured Bodyguard of Ajit Sarkar. Abhijit Day, P.W. 28 is the Head of C.F.S.L., New Delhi who submitted report Ext. 9 dated 3.3.1999 about the three fired/empty cartridges recovered from the place of occurrence. B.K. Bhardwaz, P.W. 29 has put his signature over material exhibit VII, photograph of Rajesh Ranjan @ Pappu Yadav, his wife, child and Rajan Tiwary which has been marked as Ext. 1/19, 1/20. A.D.K. Anand, P.W. 30 is the witness of seizure of the photograph, material Ext. VII. Dr. Manindra Kumar Singh, P.W. 31 is the surgeon who has put his signature over the bed head ticket of injured Ramesh Oraon, P.W. 25. Dr. Basant Kumar Sinha, P.W. 32 is the doctor who conducted post mortem on the dead body of the deceased. Rup Singh, P.W. 33 is the Principal Scientific Officer who inspected the car of the deceased on 3.3.1999 and recovered two steel core portions which is disintegrated bullet part from assault rifle of 7.62 M.M. Swapan Kumar Chandra, P.W. 38 is the S.I. of West Bengal police posted at Silliguri who recorded his statement under Section 164 Cr.P.C. to disprove the alibi of Harish Chaudhary. Babul Datta, P.W. 44 the Assistant Manager, Hotel Shardhanjali has been examined to prove the guest register of Hotel Shardhanjali, column nos. 1 and 11, which is in his writing, Exts. 22, 22/1 and hotel bill book, Ext. 23. Divya Prakash, P.W. 47 is the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 27 owner of a press and social worker. Chandradeep Sharma, P.W. 49 is the record keeper of Sadar Hospital, Purnea who has proved documents to suggest that Ramesh Oraon, P.W. 25 was treated in O.P.D. of the hospital, Ext. 24. Dr. R.D. Raman, P.W. 50 is the doctor who examined injured Ramesh Oraon. Dr. Durga Nand Mehta, P.W. 51 also attended on injured Ramesh Oraon, P.W. 25. Om Prakash Ramnani, P.W. 52 is the husband of the owner of Katihar P.C.O. No.34679. Sukhvindra Singh, P.W. 53 at the releant time was serving as Inspector in Delhi Police in whose presence R.K. Puram P.S. Case No.122/99 was registered on 12.2.1999 on the basis of the disclosure statement made by Rajan Tiwary which was recorded by Sub-Inspector Palvinder Singh in his presence. Arbind Kumar Jha, P.W. 56 is the Investigating Officer of K.Hat P.S. Case No.230/98 who recorded the fardbeyan of P.W. 8 on the basis of which K.Hat P.S. Case No.230/98 has been registered and submitted charge sheet dated 20-21.9.1998 in the court of C.J.M., Purnia. M.L. Meena, P.W. 57 is the Inspector of C.B.I. who assisted I.O. of the case, P.W. 61. Rajiv Chandrola, P.W. 58 is the Inspector of C.B.I. who also assisted the I.O. P.W. 61. Gurdeep Singh Saini Saini, P.W. 59 is the Metropolitan Magistrate, Delhi who recorded the confessional statement of Rajan Tiwary. Shiva Charan, P.W. 60 is the Metropolitan Magistrate, Delhi who proved the signature of Sri Guaba, C.M.M., Delhi, Ext. 36/2. Narendra Singh Khairayat, P.W. 61 is the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 28 Investigating Officer of the case.
9. Besides the aforesaid oral evidence prosecution has produced the following documentary evidence. Ext. 1 series are signatures on various documents. Exts. 2 series, 5, 29 series are different letters. Ext. 3 series are telephone print out indicating that call of long duration made in the morning of 14.6.1998 from Delhi residence of appellant Rajesh Ranjan @ Pappu Yadav to his Purnia residence. It was further pointed out with reference to Ext. 3 series that on the date of occurrence at 18 hour 16 minute 48 second call of 42 second duration and at 18 hour 18 minute and 16 second call of 32 second duration was made from Katihar P.C.O. telephone no.34679 to Delhi residence of appellant Rajesh Ranjan on telephone nos. 3730767 subscribed in the name of appellant Rajesh Ranjan and on telephone no.3736358 subscribed in the name of his wife. On the same day at 20 hour 08 minute 41 second call from same P.C.O. of one minute 26 second was made to the Gorakhpur residence of appellant Rajan Tiwary on telephone no.0551322035. Ext. 4 is telephone bill. Ext. 6 is T.I. Chart of appellant Rajan Tiwary. Ext. 7 is T.I. report. Ext. 8, 42 are the notification dated 11.8.1998, 28.9.1998 issued by the Government of Bihar and Union of India granting consent and taking over investigation of K. Hat P.S. Case No.230/98. Ext. 9 series are reports. Ext. 10 is memo. Ext. 11 is bed head ticket of injured Ramesh Oraon, P.W. 25. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 29 Ext. 12/1 is endorsement on letter. Ext. 13 series are post mortem reports of the three deceased. Ext. 14 is writing and signature on the back of photograph. Exts. 15 and 15/1 are writing and signature. Ext. 16 is memo of arrest. Exts. 17, 18 are bond and bail bond. Ext. 19 is prosecution report. Ext. 20 is order sheet. Ext. 21 is statement under Section 164 Cr.P.C. Ext. 22 series are entry in register. Ext. 23 is hotel bill. Ext. 24 is out patient department (emergency register) indicating injuries on the person of Ramesh Oraon, P.W. 25. Ext. 25 is admission register. Ext. 26 is seizure list. Ext. 27 is fardbeyan. Ext. 28 is application. Exts. 30, 30/1 are writing and signature on supplementary case diary. Ext. 31 is formal F.I.R. Ext. 32, 33 series are seizure memo. Exts. 34 and 34/1 are signature of accused Rajan Tiwary on his confessional statement. Ext. 35 is confessional statement of accused Rajan Tiwary. Ext. 36 series are endorsement of Chief Metropolitan Magistrate and Metropolitan Magistrate, Delhi on the application filed by I.O. for recording the confessional statement of Rajan Tiwary. Exts. 37, 37/1 are signatures on F.I.R., Ext. 38 series are inquest reports. Ext. 39 is search list. Ext. 40 is recovery and seizure memo. Ext. 41 is application. Exts. 43, 43/1 are disclosure statements of appellants Anil Kumar Yadav and Rajan Tiwary.
10. Besides the aforesaid documentary evidence the prosecution has also produced the following material exhibits. Ext. I, I/2 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 30 are cartridges. Ext. II is box. Ext. II/1 is sealed cloth. Exts. III to III/3 are envelopes. Exts. IV, IV/1 are sealed covers. Ext. V is hotel register. Exts. VI, VI/2 are dead body challan. Ext. VII is photograph.
11. The defence of the appellants is complete denial but they have examined 27 witnesses, namely, Prabhat Prasad Yadav D.W. 1, Amod Kumar Chaudhary D.W. 2, Jagat Jaiswal D.W. 3 Sanjay Kumar Yadava D.W. 4, Ajay Kumar D.W. 5, Shankar Yadava D.W. 6, Pawan Kumar D.W. 7, Raj Kumar Jaiswal D.W. 8, Ziaul Haq D.W. 9, Md. Nazmul Hoda D.W. 10, Arvind Prasad Yadava D.W. 11, Mani Bhushan Prasad D.W. 12, Prabhash Chandra Yadava D.W. 13, Ram Charitra Yadava D.W. 14, Md. Afaq Alam D.W. 15, Ramdeo Prasad D.W. 16, Shyamanand Yadava D.W. 17, Santosh Kumar D.W. 18, Lal Bahadur Singh D.W. 19, Kripanath Das D.W. 20, Madhumita Devi D.W. 21, Naresh Bishwas D.W. 22, Sanjay Kumar Yadava D.W. 23, Kashinath Gupta D.W. 24, Jaikant Paswan D.W. 25, Rajiv Kumar Chaudhary D.W.26 and Bhai Shamsuddin, D.W. 27.
12. Besides examining defence witnesses they have also produced the following documents. Ext. A is prescription. Ext. B is signature of Bilin Chand Sarkar on fardbeyan of K. Hat P.S. Case No.230/98. Exts. C to C/5 are information slip. Ext. D is endorsement of C.M.M. Ext. E is certified copy of F.I.R. of K. Nagar P.S. Case No.260/92. Ext. E/1 is certified copy of F.I.R. of K. Nagar P.S. Case Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 31 No. 46/93. Ext. F is certified copy of petition for judicial remand of Rajan Tiwari. Exts. F/1, F/2, F/3 and F/4 are certified copies of petitions for judicial remand of Rajan Tiwari. Ext. G is survey map of village Maranga. Ext. H is certified copy of order sheet of R.K. Puram P.S. Case No.122/99.
Submission on behalf of appellant Rajan Tiwary
13. Learned counsel for appellant Rajan Tiwary submitted that the three eye witnesses, namely, P.W. 8, 9, 10 cannot be relied upon as they are the residents of village Rani Patra, which is 7 kilometers away from the place of occurrence reached the place of occurrence 45 minutes after the occurrence, which would appear from the evidence of Ranu Kumar Singh, P.W. 19 paragraph 8 and injured Ramesh Oraon, P.W. 25 paragraphs 8, 9 and 10 that he remained at the place of occurrence for about half an hour after the occurrence and the eye witnesses were not seen by him. P.W. 25 has further stated in paragraph 2 that Subhash Singh was first to arrive at the place of occurrence and that Subhash Singh rescued him from the car. Aforesaid statement of the injured P.W. 25 contradicts the eye witnesses that they were the first to reach the place of occurrence. Sunil Kumar Singh, P.W. 14 has also corroborated Ramesh Oraon, P.W. 25 about the presence of Subhash Singh and has stated that it was Subhash Singh who gave information at the house of Ajit Sarkar about the murder at 5 P.M. According to Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 32 learned counsel for appellant Rajan Tiwary the evidence of P.Ws. 19, 25, 14 have not been challenged by the prosecution, their evidence is binding on the prosecution. Reliance in this connection was placed on the judgment of the Supreme Court in the case of Javed Masood and Another Vs. State of Rajasthan, AIR 2010 Supreme Court 979, paragraphs 9, 10, 13 to 16.
14. Learned counsel for the appellant Rajan Tiwary further submitted that from paragraph 8 of the evidence of Ranu Kumar Singh, P.W. 19, it would appear that when Kalyan Chandra Sarkar, P.W. 8 came to the place of occurrence after 45 minutes of the occurrence he asked as to who killed his brother and others. It is submitted with reference to the observation of the Supreme Court in the case of Govind Narain and Another Vs. State of Rajasthan, AIR 1993 Supreme Court 2457, paragraph 6 that as P.W. 8 reached the place of occurrence after 45 minutes of the occurrence and he was making enquiry as to who killed his brother, his evidence is fit to be discarded in view of the testimony of independent witness Ranu Kumar Singh, P.W. 19 paragraph 8.
15. It is further pointed out by learned counsel for appellant Rajan Tiwary that Ranu Kumar Singh, P.W. 19 and Ramesh Oraon, P.W. 25 have stated in their evidence that Ramesh Oraon P.W. 25 was sent to hospital in a tempo but as per the testimony of the three eye Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 33 witnesses, namely, P.Ws. 8, 9, 10 P.W. 25 was sent to the hospital in Ambulance along with the three dead bodies which is indicative of the fact that eye witnesses were not present when Ramesh Oraon P.W. 25 was sent to the hospital. In this connection, reliance is also placed on the evidence of Madhumita Devi, D.W. 21 daughter of Kalyan Chandra Sarkar, P.W. 8 as she has stated in her evidence that the three eye witnesses were present at Rani Patra when news of murder of her uncle reached the village. It is also submitted that no reason has been attributed to her by the prosecution for giving false evidence.
16. Learned counsel for appellant Rajan Tiwary further submitted that Kalyan Chandra Sarkar P.W. 8 has falsely denied that he lodged the fardbeyan, Ext. 27 and made case diary statements. Lodging of the fardbeyan Ext. 27 and further statements made by him has been established by Sri A.K.Jha, P.W. 56 in examination in chief. The evidence of P.W. 56 has not been challenged by the prosecution nor has any suggestion been made to him that he fabricated the fardbeyan. Moreover, Kalyan Chandra Sarkar having admitted his signature on the fardbeyan the evidence of Sri A.K. Jha is required to be accepted as earlier to making his statement before the I.O., C.B.I. on 24.10.1998 disowning his statement made before Inspector A.K. Jha, P.W. 56 on 14.6.1998 that A.K. Jha took his signature on blank paper on 15.6.1998, he never made complaint before any authority that his signature was Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 34 taken by Inspector A.K. Jha, P.W. 56 on blank paper on 15.6.1998 with date 14.6.1998 beneath his signature. The contents of the fardbeyan are detailed and it is not possible to believe that the Investigating Officer imagined those details and prepared Ext. 27. Reliance in this connection, is placed on the judgment of the Supreme Court in the case of Sarwan Singh and Others Vs. State of Punjab, (1976) 4 SCC 369, paragraph 8 at page 375, Kanti Kumari Roy Vs. Suresh Kumar Roy and others, AIR 1990 Supreme Court 1631, paragraph 6 and Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh, (1991) 3 SCC 627, paragraph 6.
17. Learned counsel for appellant Rajan Tiwary further submitted that K.C. Sarkar, P.W. 8 has been extensively contradicted by his own statement on the basis of which fardbeyan, Ext. 27 and further statement under Section 161 Cr.P.C. was recorded by Inspector A.K. Jha, P.W. 56. In the fardbeyan and further statement P.W. 8 has stated that assailants on the motorcycle were Jawahar Yadav, Abdul Sattar, Diwakar Choudhary and Pappu Dev. Bipin Singh and 6-7 others came in a car. In court he has excluded the assailant named in the fardbeyan and substituted them by Anil Yadav, Harish Choudhary, Amar Yadav and Rajan Tiwary. Change in the name of the accused persons in the court cannot be permitted where witness makes two inconsistent statements in their evidence either at one stage or at two stages. The Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 35 testimony of such witness becomes unreliable and unworthy of credence. In absence of special circumstances no conviction can be based on the evidence of witness who has given inconsistent evidence. Reliance in this connection, is placed on the judgment of the Supreme Court in the case of Hallu and Others Vs. State of Madhya Pradesh, (1974) 4 SCC 300, paragraphs 6, 7, State of Haryana Vs. Gurdial Singh and Another, (1974) 4 SCC 494, paragraph 21, Suraj Mal Vs. The State (Delhi Administration), AIR 1979 Supreme Court 1408 and Ahmed Bin Salam Vs. State of Andhra Pradesh, AIR 1999 Supreme Court 1617, paragraph 5.
18. From the deposition of P.W. 8, it further appears that he has falsely denied that Purnia police did not come to the place of occurrence on 14.6.1998. He is also not to be believed because he did not inform the local police that he is an eye witness but disclosed such fact to the C.B.I. vide paragraph 7 of his evidence when C.B.I. came to investigate the case four months later. P.W. 8 is further not to be believed as he did not disclose about the incident either to the widow of Ajit Sarkar or his son, as would appear from paragraph 15 of his evidence. P.W. 8 is also not to be believed because he never lodged any complaint prior to his deposition that police has wrongly recorded his fardbeyan and case diary statements vide paragraph 7 of his deposition. P.W. 8 also did not make any complaint that Bipin Singh has wrongly Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 36 been arrested vide paragraph 2 of his evidence. It is submitted with reference to aforesaid infirmities in the evidence of P.W. 8 that P.W. 8 being the brother of the deceased, although had no motive to implicate the appellants but was persuaded to give evidence in support of the case implicating the appellants but such evidence cannot be accepted on account of infirmities noted above. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Rambilas and others Vs. State of Madhya Pradesh, AIR 1997 Supreme Court 3954.
19. Madhusudan Rishi, P.W. 9 is also not fit to be relied as he being member of C.P.M. District Committee is highly interested in success of the prosecution. He is also not to be relied as he knew Anil Yadav, Harish Chaudhary, Amar Yadav by face and name prior to the occurrence but his failure to disclose their names to P.W. 8 renders the prosecution story false. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Hari Nath and another Vs. State of U.P., AIR 1988 Supreme Court 345. P.W. 9 is also not to be relied as he did not disclose the local police that he is an eye witness but disclosed such fact after four months to the C.B.I. He also stands extensively contradicted in the light of his case diary statements recorded by A.K. Jha, P.W. 56. Even though P.W. 9 stated that he informed his party workers regarding identity of the assailants but not a Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 37 single party worker has been examined to corroborate him. On the contrary I.O., C.B.I., P.W. 61 stated that he could not locate any party worker to whom P.W. 9 had disclosed the name of the assailants. Aforesaid false evidence given by P.W. 9 shakes the foundation of prosecution case. Reliance in this connection has been placed on the judgment of the Supreme Court in the case of Sohan and another Vs. State of Haryana and another, AIR 2001 Supreme Court 1380, paragraph 28. P.W. 9 is also not to be relied as he stands contradicted by injured P.W. 25 as according to P.W. 9 injured was sent to hospital in Ambulance, which is incorrect in view of the evidence of the injured that he went to hospital in Tempo. Lastly it is submitted that P.W. 9 having not disclosed the local police soon after the incident that he is an eye witness no reliance can be placed on his evidence. Reliance in this connection, has been placed on the judgment of the Supreme Court in the case of State of Orissa Vs. Mr. Brahmananda Nanda, AIR 1976 Supreme Court 2488, Bachhu Narain Singh Vs. Naresh Yadav and others, AIR 2004 Supreme Court 3055 and Ramreddy Rajeshkhanna Reddy and Anr. Vs. State of Andhra Pradesh, AIR 2006 Supreme Court 1656, paragraphs 4, 5 and 6.
20. Learned counsel for Rajan Tiwary also submitted that evidence of Lal Bahadur Oraon, P.W. 10 is also not fit to be relied as he is resident of village Rani Patra and knew the deceased Ajit Sarkar since Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 38 the childhood, which is evident from paragraph 2 of his evidence, as such, highly interested in success of the prosecution. P.W. 10 is further not to be relied as having counter-signed the fardbeyan, Ext. 27 on 14.6.1998 falsely denied such fact. P.W. 10 also new Anil Yadav, Amar Yadav and Harish Chaudhary from before but did not disclose their names to P.W. 8 vide paragraph 10 of the evidence of P.W. 8. He also did not disclose the names of the assailants to the wife of the deceased vide paragraph 10 of the evidence of P.W. 10. He also did not inform local police that he is an eye witness vide paragraph 6 and 7 of his evidence. He disclosed the fact that he is an eye witness to the occurrence one month after the incident vide paragraph 2 of his evidence. In paragraph 6 of his evidence he has stated that about 100- 150 shots were fired and that each deceased sustained about 50-60 bullet injuries, which stands contradicted by the evidence of the doctor conducting autopsy on the person of the three deceased, Dr. Basant Kumar Singh, P.W. 32 found Ajit Sarkar sustained two gun shot injuries. Asfaq Alam and Harendra Sharma sustained one gun shot injury each. It is submitted that P.W. 10 is also fit to be rejected for the reasons which have been indicated above while dealing with the evidence of P.W. 9.
21. Learned counsel for the appellant Rajan Tiwary further challenged the confessional statement made by Rajan Tiwary, Ext. 35 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 39 and submitted that I.O., P.W. 61 illegally took accused Rajan Tiwary in his custody on 13.2.1999 and kept him in wrongful confinement till 22.2.1999. During the aforesaid period Rajan Tiwary was kept incommunicado and subjected to sustained interrogation by a team of four officers, vide paragraph 57 of the evidence of I.O., P.W. 61. According to learned counsel there is no judicial order from any court directing police remand of Rajan Tiwary to P.W. 61. Realizing this illegality P.W. 61 subsequently committed forgery with judicial record, Ext. F/4 and made interpolation thereupon by writing ―received accused in muffled condition with warrant‖ and thereby committed interpolation in the judicial record, Ext. F by interpolating Ext. F/4. Reference in this connection, is made to the observations of the trial court in paragraph 41 of the impugned judgment. It is further submitted that Exts. F, F/4 were marked as defence exhibit without objection from the prosecution.
22. Learned counsel for appellant Rajan Tiwary further submitted that Rajan Tiwary remained in police custody for 9 days from 13.2.1999 till 21.2.1999 and produced in the court of Sri Saini on 22.2.1999 at 12.30 P.M. whereafter Sri Saini allowed Rajan Tiwary 45 minutes to reflect if he wishes to make confession. According to learned counsel grant of 45 minutes time to reflect is contrary to the dictum laid down by the Constitution Bench of the Apex Court. It is further submitted that confession recorded by Rajan Tiwary is further bad for Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 40 the reason that Sri Saini failed to inform Rajan Tiwary that he is a Magistrate. The confession of Rajan Tiwary is also bad for the reason that Sri Saini did not inform Rajan Tiwary that he would not be handed over to the C.B.I. if he did not make the confession. In fact, Rajan Tiwary was handed over to the C.B.I. after the confession vide evidence of I.O., P.W. 61 paragraph 176 and paragraph 25 of the evidence of P.W. 59 Magistrate recording the confession.
23. According to learned counsel for appellant Rajan Tiwary the confession is further bad for the reason that Sri Saini, P.W. 59 neither enquired from Rajan Tiwary whether he has been subjected to third degree by the police nor checked his body. The medical examination certificate of Rajan Tiwary dated 21, 22.2.1999 was not produced vide paragraph 172, 171 of the evidence of I.O., P.W. 61.
24. Learned counsel further submitted that from perusal of the order passed by Sri Saini, P.W. 59 on 22.2.1999 at 12.30 P.M. and 1.15 P.M. when Rajan Tiwary was produced before him for recording his statement, it would appear that P.W. 59 recorded his statement as Rajan Tiwary was insisting on making the confession, which is sure proof that he was coerced.
25. It is further submitted that three important pages of the confession i.e. page nos. 3, 4 and 5 has not been signed by Rajan Tiwary, as such, confession is not in accordance with law and fit to be Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 41 ignored.
26. Learned counsel also submitted that confession of Rajan Tiwary is not voluntary as before recording his confession Rajan Tiwary was identified by I.O., P.W. 61 who was standing outside the court room while Rajan Tiwary was recording his confession and after the confession was recorded Rajan Tiwary was handed over to I.O., which is evident from the evidence of P.W. 59, paragraphs 17, 29, 32. In view of the submissions noted in paragraphs 22 above, it is submitted that Rajan Tiwary having not been allowed at least 24 hours time for reflection the confession recorded by him on 22.2.1999 at his insistence is wholly involuntary and fit to be rejected in view of the judgment of the Supreme Court in the case of Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569, paragraph 390 at page 727 and Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 Supreme Court 637, paragraph 10.
27. It is further submitted that prolonged police (C.B.I.) custody is conclusive proof of coercion. Reference in this connection is made to the judgment of the Supreme Court in the case of Nathu Vs. State of Uttar Pradesh, AIR 1956 Supreme Court 56, paragraph 6.
28. Counsel for appellant Rajan Tiwary further submitted that confession recorded by Rajan Tiwary cannot be relied upon as his confession was recorded without observing the safeguard provided in Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 42 Sub-sections (2), (3) of Section 164 Cr.P.C. and Rule 7 of the Delhi High Court Rules. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, AIR 2011 Supreme Court 1436, paragraphs 23 to 33, Dhanajaya Reddy Vs. State of Karnataka, (2001) 4 SCC 9, paragraphs 17 to 24. With reference to the judgment of the Supreme Court in the case of Dhanajaya Reddy(supra) and Rabindra Kumar Pal (supra) learned counsel for Rajan Tiwary submitted that the first precaution which the Judicial Magistrate recording 164 Cr.P.C. statement of the accused is required to take is to prevent forcible extraction of confession by the prosecuting agency by ensuring that the safeguards provided under Sub-Clauses (2), (3) and (4) of Section 164 Cr.P.C. are observed not only in form but in substance. Before proceeding to record the confessional statement a searching enquiry must be made by the Magistrate from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody to ensure that there is no scope for doubt of any sort of extraneous influence, proceeding from a source interested in the prosecution still lurking in the mind of an accused. The Magistrate in particular should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial, even if he contrives subsequently to retract the confession. The accused willing Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 43 to record confession should be granted sufficient time for reflection. During the time of reflection the accused should be completely out of police influence. The Judicial Officer who is entrusted with the duty of recording confession must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him. He should also be assured of protection from any sort of apprehended torture or pressure from the police, in case, he declines to make a confessional statement and be given the assurance that even if he declined to make the confession he shall not be remanded to police custody. Judicial confession should be recorded in question and answer form, which is the manner indicated in the criminal court rules. At the time of recording of the statement of the accused no policeman or officer shall remain present in the court/chamber where the statement is recorded. Having recorded the confession signature of the officer and the accused be obtained on the confession as per the requirement of Sub-Section-(5) of Section 281 referred to in Sub-Clause-(4) of Section 164 Cr.P.C. It is also submitted that the failure of the Magistrate to put searching questions from which he could ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same. It is submitted that in the instant case, Sri Saini, P.W. 59 before recording the confession of Rajan Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 44 Tiwary did not ascertain from him the custody from which he has been produced and the treatment which he has been receiving in such custody. He also did not inform Rajan Tiwary that in case he does not wish to make the confession he shall not be remanded to the custody of C.B.I. from which he has been produced. It is also submitted that after recording of the confession of Rajan Tiwary his signature was not obtained on pages 3 to 5 of the confession as is required under Sub- Section (5) of Section 281 Cr.P.C. referred to in Sub-Section (4) of Section 164 Cr.P.C. thereby the contents of pages 3 to 5 of the confession, Ext. 35 cannot be relied upon by the prosecution in support of the charges levelled against him. Having recorded the confession Rajan Tiwary was again remanded to police (C.B.I.) custody, which is clear violation of Rule 7 of the Delhi High Court Rules and for such violation also confession is fit to be rejected.
29. Learned counsel for appellant Rajan Tiwary has further submitted that the confession recorded by Rajan Tiwary, Ext. 35 is not a confession at all. In case, this Court concludes that confession of Rajan Tiwary is a confession the same having been retracted under undated petition addressed to Chief Metropolitan Magistrate, Delhi and forwarded by the office of the Superintendent, Central Jail No.5, Tihar, New Delhi to ADJ cum Chief Metropolitan Magistrate, Tis Hazari Court, Delhi under Memo No. 181 dated 1.3.1999, petition dated Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 45 30.3.1999, another petition addressed to Special Magistrate, C.B.I., Patna and forwarded by Superintendent, Beur Jail, Patna under Memo No. 1016 dated 30.3.1999, petition dated 21.4.1999 filed through lawyer giving reference of retraction dated 30.3.1999, the contents of the confession, Ext. 35 is required to be corroborated with reference to the evidence led by the prosecution.
30. Learned counsel for appellant Rajan Tiwary has further submitted that telephone print outs, Ext. 3 series cannot be relied upon as evidence in support of the prosecution case. Information given under the print out has not been signed by a person occupying a responsible official position in relation to the operation of the telephone exchange or the management of the telephone company, as is required under Section 65-B of the Evidence Act. It is further submitted that the telephone print out having been issued under the signature of Ramashray Rajak, Sub- Divisional Officer, Phones, Katihar, P.W. 6 and K.K. Naiyar, Sub- Divisional Officer, Vigilance, MTNL, P.W. 12 the same cannot be relied upon as P.Ws. 6, 12 are neither the Incharge of telephone exchange from which the print outs have been issued nor they have any control over the management of the telephone company.
31. Learned counsel for appellant Rajan Tiwary has finally submitted that C.B.I. investigation in the present case is wholly without jurisdiction as after submission of the charge sheet dated 20/21.9.1998 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 46 by Purnia police in K. Hat P.S. Case No. 230/98 registered for the offence of murder of Ajit Sarkar and others, C.J.M., Purnia had taken cognizance under order dated 23.9.1998 for the offences referred to in the charge sheet and summoned the accused sent up for trial, matter being subjudice de novo investigation by the C.B.I. could not have been made without the permission of C.J.M., Purnia. In support of the aforesaid plea learned counsel for appellant Rajan Tiwary relied on the judgment of the Supreme Court in the case of T.T. Antony Vs. State of Kerala and others, AIR 2001 SC 2637, Rama Chaudhary Vs. State of Bihar, AIR 2009 SC 2308 and Vinay Teyagi Vs. Irshad Ali @ Deepak and others., 2013 CRI.L.J. 754.
Submission on behalf of appellant Anil Kr. Yadav
32. Learned counsel for appellant Anil Kumar Yadav has adopted the submissions made on behalf of appellant Rajan Tiwary. He has further submitted that Anil Yadav is not named as accused in the fardbeyan/ F.I.R. of K. Hat P.S. Case No.230/98 Exts. 27, 31 which has been recorded/ registered on the basis of the statement of P.W. 8. It is further stated that Anil Yadav is also not named in F.I.R. of R.C. Case No.12(S)/98 dated 12.10.1998. Counsel for Anil Yadav further submitted that the informant, P.W. 8 did name Anil Yadav in his statement recorded by I.O. of C.B.I., P.W. 61 as also in court that the appellant Anil Yadav and others including the two appellants came to Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 47 the place of occurrence and kept the red bullet motorcycle in start position to facilitate the escape of the assailants. Learned counsel has further submitted that appellant Anil Yadav has neither motive nor mens rea to kill Ajit Sarkar and others, as such, the evidence recorded by P.W. 8 in court is fit to be rejected as such evidence was never recorded by him before the I.O. of State police and statement to the contrary made after four months of the occurrence cannot be relied upon. With reference to the evidence of Ranu Kumar Singh, P.W. 19 learned counsel submitted that P.W. 19 has stated in paragraph 2 of his cross- examination that Kalyan Chand Sarkar, P.W. 8 came to the place of occurrence after 45 minutes of his arrival and was loudly asking as to who killed his brother. Witness in the same paragraph states that injured Ramesh Oraon, P.W. 25 was sent to the hospital in Tempo contrary to the claim of P.W. 8.
33. Learned counsel for appellant Anil Yadav further submitted that Madhusudan Rishi P.W. 9 claimed that he saw the occurrence from 100-150 yards and identified the appellant Anil Yadav as the one who was driving red bullet motorcycle over which Harish Chaudhary was pillion rider. He identified Anil Yadav as he was local person and was always seen with Pappu Yadav during electioneering. P.W. 9 also claimed to have identified Harish Chaudhary as he was regular companion of Rajesh Ranjan @ Pappu Yadav though he is not Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 48 presently present in court. P.W. 9 also identified Rajan Tiwary who had come to the place of occurrence on black motorcycle as he had seen him several times during 1998 election. Anil Yadav had kept the motorcycle in start position. Harish Chaudhary, Amar Yadav and Rajan Tiwary resorted to firing. Rajan Tiwary confirmed the death of M.L.A. Sahab by touching his body and thereafter Rajan Tiwary kick start the motorcycle and took Amar Yadav as his pillion rider and went away. Harish Choudhary became the pillion rider of Anil Yadav. Both the motorcycles went towards Congress Office.
34. Learned counsel for Anil Yadav challenged the evidence of Madhusudan Rishi, P.W. 9 on the ground that he for the first time in court after five years of the occurrence stated that he being a local person recognized appellant Anil Yadav as he had seen him along with Rajesh Ranjan @ Pappu Yadav during eletion campaign. Aforesaid deposition according to learned counsel is fit to be rejected in view of the evidence of P.Ws. 56, 61 vide paragraphs 171, 201 of P.W. 56 and paragraph 106 of P.W. 61 that P.W. 9 never stated such fact before either P.W. 56 or P.W. 61.
35. Learned counsel for appellant Anil Yadav further submitted that Lal Bahadur Oraon, P.W. 10 also identified Anil Yadav as the one who came to the place of occurrence driving red bullet motorcycle with Harish Choudhary sitting as pillion rider. He also Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 49 claimed that black motorcycle was driven by Amar Yadav and a tall man with arm was his pillion rider. He also stated that he could identify Anil Yadav as he had seen him along with Rajesh Ranjan @ Pappu Yadav during election campaign. P.W. 10 further stated that local police arrived at the place of occurrence after 15-20 minutes of the occurrence but he is not aware as to how long the police remained at the place of occurrence. P.W. 10 further confirmed that he did not infirm the local police about the name of the assailants including the fact that he new the assailants from the time of election. He further stated that he never gave any application to the local police that he is an eye witness of the occurrence. Learned counsel further pointed out towards the evidence of P.W. 10 in paragraph 7 that he signed his statement given to the local police in connection with post mortem of the deceased on 15.6.1998 without reading the same. He further pointed out towards the evidence of P.W. 10 in the same paragraph that the witness had not informed the superior officers of the Bihar Police in writing that local police had obtained his signature on blank paper.
36. Learned counsel for appellant Anil Yadav challenged the evidence of Lal Bahadur Oraon, P.W. 10 that he identified Anil Yadav from before as he had seen him earlier during election campaign of Rajesh Ranjan @ Pappu Yadav as has been claimed by P.W. 10 in paragraph 1 of the examination in chief but such statement was not Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 50 made by the witness while recording his statement before the I.O. of local police, P.W. 56, which is evident from paragraphs 173, 202 of the evidence of P.W. 56 as P.W. 56 claimed in those paragraph that P.W. 10 neither named Anil Yadav in his statement nor claimed that he identified him from before as he had seen him during election campaign of Rajesh Ranjan @ Pappu Yadav. In this regard learned counsel for appellant Anil Yadav also referred to the evidence of P.W. 61, paragraph 107 where P.W. 61 accepted that P.W. 10 had not stated before him that he had seen Anil Yadav and Amar Yadav moving along with Rajesh Ranjan @ Pappu Yadav during his election campaign.
36(a). Learned counsel with reference to the evidence of Ramesh Oraon, P.W. 25 paragraph 3 submitted that he remained at the place of occurrence for about 20-25 minutes after the occurrence but until he was taken from the place of occurrence in tempo P.Ws. 8, 9 and 10 did not come to the place of occurrence.
37. Learned counsel for Anil Yadav further submitted that in the light of the evidence of independent witnesses P.Ws. 19, 25, 48 and 56 P.Ws. 8, 9 and 10 cannot be taken as reliable eye witnesses of the occurrence. Learned counsel also submitted that from the evidence of P.W. 56 paragraphs 200, 201 and 202 it would appear that the three eye witnesses P.Ws. 8, 9 and 10 did not name Anil Yadav as the one who on the date and time of occurrence had come to the place of Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 51 occurrence for executing the conspiracy and assisted the assailants in making good their escape from the place of occurrence on motorcycle by keeping the red bullet motorcycle in start position.
38. Learned counsel with reference to the evidence of Domai Thakur and Shambhoo Prasad Mehta, P.Ws. 15 and 16 submitted that both the witnesses had seen Anil Yadav, Harish Chaudhary, Amar Yadav and one unknown in Harda market over read bullet and black motorcycle taking rounds of the market in the afternoon prior to the occurrence. They also saw the two motorcycles following the white Ambassador car of the deceased Ajit Sarkar from Harda market.
39. Learned counsel for Anil Yadav also challenged the evidence of Domai Thakur and Shambhoo Prasad Mehta, P.Ws. 15, 16 on the ground that they falsely stated in their examination in chief that on the date of occurrence they had seen Anil Yadav taking rounds on red bullet motorcycle with pillion Harish Chaudhary in Harda market and thereafter followed the car of the deceased as they recognized both Anil Yadav and Harish Chaudhary from before i.e. time of election campaign of Rajesh Ranjan @ Pappu Yadav. According to learned counsel aforesaid deposition of P.Ws. 15, 16 has been made for the first time in court after more than five years of the occurrence, which is evident from paragraphs 109, 289 of P.W. 61 who has categorically Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 52 stated that such statement was never made before him while he recorded the statement of P.Ws. 15, 16 during investigation.
40. Learned counsel with reference to paragraph 173 of the evidence of A.K. Jha, P.W. 56, I.O. of K. Hat P.S. Case No.230/98 submitted that witness Lal Bahadur Oraon, P.W. 10 has not stated before him (P.W. 56) that Rajesh Ranjan @ Pappu Yadav calls Harish Chaudhary as Mama. P.W. 10 further did not state before P.W. 56 that during election he had seen Anil Yadav along with Rajesh Ranjan @ Pappu Yadav. P.W. 10 has also not stated before P.W. 56 that he had seen Amar Yadav together with Rajesh Ranjan @ Pappu Yadav during election campaign. P.W. 10 had also not stated before P.W. 56 that Rajesh Ranjan @ Pappu Yadav during election speech had stated that in the event he wins the election he shall assault Ajit Sarkar by entering his house and in case, he loses the election he will assault Ajit Sarkar on the road. With reference to paragraph 174 of the evidence of P.W. 56 learned counsel submitted that during election campaign while delivering street corner speech Jawahar Yadav and Abdul Sattar had stated in village Rani Patra that in case Rajesh Ranjan @ Pappu Yadav will win the election the M.L.A. shall be assaulted in his house and in case, he loses the election then on road. With reference to the evidence of P.W. 56 in paragraph 200, 201, 202 learned counsel for appellant Anil Yadav submitted that neither P.W. 8 nor P.W. 9 nor P.W. 10 had named Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 53 Anil Yadav in their statement given to P.W. 56 as the one who was involved in the murder of Ajit Sarkar and two others.
41. Learned counsel for Anil Yadav with reference to the evidence of P.W. 61 paragraphs 227, 254 to 268, 271 to 275, 280 to 290 submitted that the prosecution case put forth by P.Ws. 8 to 10, 15 and 16 is fit to be rejected as the version put forward by those witnesses implicating Anil Yadav was not stated by those witnesses before the I.O., P.W.61. P.Ws. 9, 10 named Anil Yadav for the first time before P.W. 61 vide paragraphs 256, 258. Aforesaid version has been put forward by the witnesses for the first time in court and to deliberately conceal the innocence of appellant Anil Yadav his statement recorded under Section 164 Cr.P.C. has not been brought on record. It is further submitted on behalf of Anil Yadav that red bullet motorcycle was not seized from his house as he never owned/possessed any motorcycle. According to learned counsel the oral evidence of the prosecution that Anil Yadav possessed red bullet motorcycle is hit by Section 59 of the Evidence Act in absence of any documentary proof showing his ownership of the red bullet motorcycle, which was never put on T.I. Parade for identification. Reference in this connection is also made to the evidence of D.Ws. 5 and 11. Learned counsel for Anil Yadav submitted that story of recovery of red bullet motorcycle is not true as the said motorcycle was neither produced before the C.J.M., Purnea nor Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 54 before the trial court and recovery memo, Exts. 40, 43 was admitted in evidence with objection which is a weak evidence and hit by Sections 24, 25, 26 of the Evidence Act.
42. Learned counsel with reference to paragraphs 227, 228 of the evidence of N.H. Kharaiyat, P.W. 61 (I.O.) submitted that P.W. 9 had not stated before him that Anil Yadav kept the motorcycle in start position and Amar Yadav, Harish Chaudhary, Rajan Tiwary resorted to firing. He also did not state before him that Rajan Tiwary having confirmed the death of Ajit Sarkar by touching his body kick start the motorcycle over which Amar Yadav sat as pillion rider, Harish Chaudhary became the pillion rider of Anil Yadav and the two motorcycle escaped through Krishna Ashram road over which Congress office is also situated.
43. Learned counsel for appellant Anil Yadav further submitted with reference to paragraphs 27, 283 of the evidence of P.W. 61 that confessional statement of Anil Yadav was also recorded on 26.2.1999 under Section 164 Cr.P.C. by Mrs. Santosh Sneh Mann, Metropolitan Magistrate, Delhi but the said statement has not been cited as evidence in the charge sheet.
44. Learned counsel further submitted that red bullet motorcycle said to have been used in the crime and recovered from the verandah of the house of Anil Yadav on 18.2.1999 vide two disclosure Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 55 memo, both dated 18.2.1999, Exts. 43, 43/1 and pointing out cum recovery and seizure memo dated 18.2.1999, Ext. 40 admitted in evidence with objection. The motorcycle having not been produced in court and the two independent witnesses of the disclosure memo, namely, Upendra Shukla and P.K. Verma officer of the State Bank of India, P.Ws. 23, 24 having stated in their evidence that it is incorrect to say that disclosure memo was prepared in their presence and they signed the same on 18.2.1999 the memo cannot be relied upon. The pointing out cum recovery and seizure memo Ext. 40 admitted in evidence with objection can also not be relied upon as the two independent witnesses to the said pointing out cum recovery and seizure memo, namely, Umesh Mishra and Shiv Shankar Prasad, Telecom Technical Assistant and Junior Telecom Officer in the office of S.D.O. Phones and Telecom District Manager, Katihar having not been examined there is no authenticity of the contents of the said pointing out memo. In this connection, reliance is also placed on the evidence of P.W. 61 in paragraph 261 onwards wherefrom it will appear that Anil Yadav was arrested on 17.2.1999 after he was called from his village home through one Prabhakar Yadav his distant relative at circuit house by Inspector A.K. Gupta, though prior to his arrest his house was searched but nothing incriminating was found. In support of the aforesaid contention learned counsel for appellant Anil Yadav relied on the judgment of this Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 56 Court in the case of State of Bihar Vs. Surendra Manjhi and Anr., 2010 CRI. L. J. 292, Vijay Singh Vs. State of M.P., 2005 CRI. L. J.
299. Submission on behalf of appellant Rajesh Ranjan
45. Learned counsel for appellant Rajesh Ranjan @ Pappu Yadav besides adopting the submission made on behalf of Rajan Tiwary submitted that C.B.I. ought to have filed its further report in K.Hat P.S. Case No.230/98 in the court of C.J.M., Purnea as per sub-section (1) of Section 4, 26 and sub-seciton (8) of Section 173 of Cr.P.C. but in any case after receipt of the records of K. Hat P.S. Case No. 230/98 in the C.B.I. Court on 7.1.2002 the C.B.I. Court ought to have tried the accused sent up for trial by Purnea police under charge sheet dated 20/21.9.1998 together with the accused sent up for trial by the C.B.I. under charge sheet no. 01, supplementary charge sheet no. 04 dated 10.5.1999/ 19.8.1999 in accordance with law. The C.B.I. did favour the accused persons charge-sheeted by Purnea police as it recommended for their discharge in the charge sheet dated 10.5.1999 as also filed separate application dated 15.9.1999 for their discharge in the court of Special Judicial Magistrate, C.B.I., Patna on the basis of which Special Judicial Magistrate, C.B.I., Patna passed order dated 15.9.1999 discharging the accused sent up for trail by Purnea police in connection with K. Hat P.S. Case No.230/98, which is wholly illegal and contrary to the provisions Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 57 contained in Section 186 Cr.P.C. According to learned counsel the Additional Sessions Judge XI cum C.B.I. Court, Patna ought to have conducted the trial of the accused persons sent up for trial by Purnea police under charge sheet dated 20.9.1998 together with the accused sent up for trial by the C.B.I. under charge sheet/ supplementary charge sheet dated 10.5.1999/ 19.8.1999 after receipt of the records of K. Hat P.S. Case No. 230/98 by the C.B.I. Court on 7.1.2002 in the light of Section 186 Cr.P.C. Additional Sessions Judge XI cum C.B.I. Court, Patna having not tried the accused sent up for trial by Purnea police in K. Hat P.S. Case No.230/98 under charge sheet dated 20/21.9.1998 together with the accused sent up for trial by the C.B.I. under charge sheet/ supplementary charge sheet dated 10.5.1999/ 19.8.1999 the trial conducted by the Additional Sessions Judge XI cum C.B.I. Court, Patna of the accused sent up for trial under charge sheet/ supplementary charge sheet submitted by the C.B.I. is nothing but abuse of the process of the court at the hands of C.B.I. and serious failure of justice has been caused by the prosecution to the appellants. The trial of the appellants is neither free nor fair. It is submitted that no man shall be prejudiced by the act of court or prosecution, which is well settled principle of law. According to learned counsel in the instant case C.B.I. and its prosecutor willfully favoured the accused persons sent up for trial by Purnea police by withholding the statement of prosecution witnesses recorded by P.W. 56 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 58 and thereby caused serious prejudice to the case of the appellants.
46. Reliance in this connection has been placed over the judgment of the Suprerme Court in the case of Association for Protection of Public Rights and Interest through its Secretary Vs. State of Bihar and others, 1990 CRI. L.J. 1928, paragraphs 35, 36, Balbir Vs. State of Haryana and Another, (2000) 1 SCC 285, T.T. Anthony Vs. State of Kerala and others, AIR 2001 SC 2637, Vinay Tiyagi Vs. Irshad Ali @ Deepak and others, 2013 CRI. L.J. 754.
47. Learned counsel for Rajesh Ranjan @ Pappu Yadav further submitted that accused in a criminal case has fundamental and legal right to receive an honest, impartial and untainted investigation and also free and fair trial as per the settled, just, fair and reasonable procedure in law in the light of the principles of natural justice as enshrined under Articles 14, 20, 21 and 22 of the Constitution as also by reading the principles enshrined in those articles in the applicable statutory laws i.e. Cr.P.C. and the Evidence Act. It is submitted that in the instant case appellant Rajesh Ranjan @ Pappu Yadav neither received honest, impartial untainted and fair investigation nor received free and fair trial as per the established, fair, just and reasonable procedure in accordance with judicially settled principles of law. According to learned counsel provisions of Sections 4(1), 91, 149, 151, 154, 161, 162, 164, 169, 172, 173, 173(2), 173(8), 223, 281, 299, 310 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 59 and 317 of the Cr.P.C. were not correctly applied while conducting the investigation and subjecting the appellants to trial. He also referred to the provisions of Sections 3, 4, 8, 10, 17, 22, 24, 25, 26, 27, 28, 30, 31, 54, 59, 60, 61, 62, 63, 64, 65, 65-A, 65-B, 66, 101 to 104, 106, 114, 115, 136, 137, 145, 146, 154, 155, 156 and 157 of the Evidence Act and submitted that in the instant trial inadmissible and tainted evidence was received and considered by the trial court violating the aforesaid provisions.
48. To buttress the aforesaid submission learned counsel for Rajesh Ranjan @ Pappu Yadav submitted that prosecution placed reliance on the confessional statement of Rajan Tiwary, Ext. 35 to convict him of the offence of hatching conspiracy with Rajan Tiwary and to kill Ajit Sarkar is violative of the constitutional protection allowed to him in part III of the Constitution vide Sub-Article (3) of Articles 20, 21 and 22 of the Constitution. He further submitted that confessional statement recorded under Section 164 Cr.P.C. can only be used against the person who has recorded his confessional statement. In this connection, learned counsel placing reliance on the 69 th report of the Law Commission of India submitted that the confession should not be relied upon against such other person(s) named in the confession as the other person(s) named in the confession had no opportunity to cross- examine the person who made the confession. In this connection, Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 60 learned counsel referred to following paragraph from the Government of the United States by Munro(Edn. 5) Page 53 quoted by the Supreme Court in the case of A. K. Gopalan Vs. State of Madras, AIR 1950 Supreme Court 27.
"The architects of 1787 built only the basement. Their descendents have kept adding walls and windows, wings and gables, pillars and porches to make a rambling structure which is not yet finished. Or, to change the metaphor, it has a fabric which, to use the words of James Russell Lowell, is still being ‗woven on the roaring loom of time.' That is what the framers of the original Constitution intended it to be. Never was it in their mind to work out a final scheme for the government of the country and stereotype it for all time. They sought merely to provide a starting point.‖
49. Learned counsel further referred to the following observation of the Supreme Court in the case of Rustum Cavasjee Cooper Vs Union of India, AIR 1970 Supreme Court 564 quoted with approval by the Supreme Court in the case of Maneka Gandhi Vs. Union of India, AIR 1978 Supreme Court 597.
―---------- it is not the object of the authority making the law impairing the right of a citizen nor the form of action Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 61 that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual's rights.‖ ―We are of the view that the theory that the object and form of the State acton determine the extent of protection which the aggrieved party may claim is not consistent with the constitutional scheme .......‖ and submitted that in the case of Maneka Gandhi(supra) Supreme Court has given expanded meaning to the expression deprivation of life, procedure established by law to mean that the procedure established by law for deprivation of life and liberty must not only be established by law but the procedure meant for deprivation of life and liberty must be just, fair and reasonable. It is not enough that there is in force a law which is formally enacted by a competent Legislature, which authorizes deprivation of life and liberty. The law Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 62 must be such that it is in conformity with justice, fairness and reasonableness. Confession of Rajan Tiwary if used against appellant Rajesh Ranjan @ Pappu Yadav with reference to Section 30 of the Evidence Act may amount to deprive the appellant of his life and liberty by resorting to law and procedure which is neither just nor fair nor reasonable as the contents of the confession is being used against the appellant without giving him opportunity to cross-examine Rajan Tiwary. In this connection, learned counsel pointed out that cross- examination is the most powerful engine for the discovery of truth says Loyd Paul Stryker in his book ―The Effect of Law‖. Learned counsel with reference to the memorandum recorded at the foot of the confessional statement in the light of Sub-Section (4) of Section 164 Cr. P.C. submitted that while recording the confessional statement the Magistrate forewarned the maker of the confessional statement (in the instant case Rajan Tiwary) that the statement given by him may be used as evidence against him, as such, it will be wholly unfair to use such statement against any other person including the appellant Rajesh Ranjan @ Pappu Yadav. In support of the aforesaid submission learned counsel also placed reliance on the judgment of the Supreme Court in the case of Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others (1993) 1 SCC 645, paragraphs 19, 142, 156, 158, 159, 161, 165, State of West Bengal and others Vs. Committee for Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 63 Protection of Democratic Rights, West Bengal and Others, (2010) 3 Supreme Court Cases 571, paragraphs 47 to 50, 67 and 68, Zahira Habibulla H. Sheikh and another Vs. State of Gujarat and others, (2004) 4 Supreme Court Cases 158, paragraphs 30 to 56, 61 to 64 and Rafiq Ahmad @ Rafi Vs. State of Uttar Pradesh, (2011) 8 Supreme Court Cases 300, paragraphs 35 to 38.
50. Confession of Rajan Tiwary is further bad for the failure of the prosecution to provide him the legal aid before recording his confession. According to learned counsel aforesaid view has been taken by the Division Bench of the Guahati High Court in the case of Gendra Brahma and others Vs. The State of Assam, 1981 CRI. L. J 430 and Kuthu Goala Vs. The State of Assam, 1981 CRI. L. J. 424. In this connection he further submitted with referene to paragraphs 6, 7 fo the judgment of the Supreme Court in the case of Shivappa Vs. State of Karnataka (1995) 2 SCC 76 that Magistrate recording 164 Cr.P.C. statement is required to ascertain the voluntary nature of confession. The enquiry about the voluntary nature of the confession is the most significant and important part of the duty of the Magistrate. According to learned counsel in the instant case there is no enquiry to ascertain the voluntary nature of confession. Merely recording that Rajan Tiwary wants to confess is not enquiry. Learned Magistrate recording the statement has not even asked Rajan Tiwary if C.B.I. treated him well or Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 64 under what circumstances he was arrested. No lawyer was assigned to him nor was he asked if he wanted to meet any relation or friend. According to learned counsel in order to make the confession admissible as made under Section 164 Cr.P.C. by an accused against a co-accused for applying the test of voluntariness for the purpose of Section 30 of the Evidence Act, this Court needs to test at the altar of Articles 14, 20, 21 and 22 of the Constitution of India and before testing the same it must read and satisfy the requirements as a rule of law than a rule of prudence under Section 164(2) Cr.P.C. to be explained to the accused by the Magistrate before recording the confession.
i. The maker of the confession should be specifically warned before hand by the recording Magistrate the effect of making the confession that by making such a confession, both the maker and co-accused may be held guilty / liable to get applicable punishments i.e. in the nature of death, life imprisonment or lesser period with fine.
ii. The maker should also be specifically warned that at later stage his retraction in any manner may or may not be believed and he may be held to be bound by it.
iii.The maker be also specifically warned that the co- accused shall have no opportunity to cross examine him and the co-accused can be equally punished on the basis of his Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 65 confession and he will have no other chance to meet his confession at the stage of trial before the trial court. iv.The certified fair copy of the confession be provided to the maker of the confession immediately after recording the confession U / s 164 Cr. P.C. v.The fair certified copy of confession of the maker be also provided to the co-accused at the earliest.
vi.Since the confession is hit by Section 163 Cr. P.C. and S- 24 of the Evidence Act, the detailed / maximum search enquiry be pointed out to accused and every effect of involuntary and Police Impact be taken care of.
vii.After administering the aforesaid warning the Magistrate must give at least 24 hours time or more by ensuring free from police custody and only then proceed to record the confession and then the same may be allowed to be tested in the trial court and not otherwise.
51. Learned counsel further submitted without prejudiced to his aforesaid submission that it would be evidently seen that there is no sufficient and acceptable corroboration to the confession of Rajan Tiwary. He further submits that Section 164 precedes Section 30 of the Evidence Act which came into force in 1872 but Section 164 Cr.P.C. makes no reference to or envisages a confession of co-accused involving Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 66 other co-accused, as such according to learned counsel Section 164 Cr.P.C. statement should not be applicable to Section 30 of the Evidence Act nor Section 10 of the Evidence Act can be so applied readily disregarding the constitutional protection of fair procedure under Articles 14, 20, 21 and 22 of the Constitution. Learned counsel also submitted that the Supreme Court in the case of S. Arul Raja Vs. State of Tamilnadu, (2010) 8 SCC 233, paragraph 56 acquitted the accused charged with offence of conspiracy after holding that the confession of A-1 is insufficient to implicate the appellant of the conspiracy as the same is hit by Section 10 of the Evidence Act. Section 10 refers to the statement of a fellow conspirator that pertains common intention behind the act and such a statement can be used against the other conspirators. In the present case, prosecution has failed to substantiate the allegation of conspiracy against Rajesh Ranjan @ Pappu Yadav and therefore he could not be under any circumstances be called a conspirator so as to attract the provisions of Section 10 of the Evidence Act. The post arrest statement of Rajan Tiwary made on 22.2.1999 after more than six months from the date of incident is hit by Section 10 of the Evidence Act as laid down by the Supreme Court in the case of S. Arul Raja(supra).
52. It is further submitted that C.B.I. prosecution has failed to produce any cogent, trustworthy, conclusive and convincing evidence on Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 67 the point of knowledge of object of conspiracy, unlawful agreement at the behest of the three appellants in trial in the light of the law laid down by the Supreme Court in the case of State through Superintendent of Police, CBI/SIT Vs. Nalini and others, (1999) 5 SCC 253, paragraphs 581 to 583 with regard to the provisions of Section 10 and 30 of the Evidence Act. With reference to the said judgment it is pointed out that a charge of conspiracy may prejudice the accused because it has forced the accused persons into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. It is unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 68 Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time but may be reached by successive actions evidencing their joining of the conspiracy. It is said that a criminal conspiracy is a partnership in crime and that there is in each conspiracy a joint or mutual agency for the prosecution by a common plan. Thus if two or more persons entered into a conspiracy any act done by any of them pursuant to the agreement is in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by each of them. This joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co- conspirator after termination of the conspiracy. The joinder of a conspiracy by anew member does not create a new conspiracy nor does Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 69 it change the status of the other conspirators, and the mere fact that conspirators individually or in group perform different tasks to a common end does not split up a conspiracy into several different conspiracies. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. One who tacitly consents to the object of a conspiracy and goes along with other conspirators actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime. In view of the law laid down in the case of Nalini(supra) learned counsel submitted that the poor qualitity of evidence as adduced during trial do not prove charge of conspiracy conclusively beyond reasonable doubt against the appellant as the evidence on the point of unlawful agreement required under Section 120A I.P.C. is not available and Rajesh Ranjan @ Pappu Yadav is entitled to acquittal by granting him benefit of doubt. It is further submitted that perusal of Ext. 35 and evidence of P.W. 59 in paragraph 22 would indicate that page nos. 3, 4, 5 and 6 of Ext. 35 is in continuation which is statement of Rajan Tiwary recorded by P.W. 59. On page nos. 3, 4 and 5 witness states that he had taken the signature of Rajan Tiwary but perusal of the original of Ext. 35 does not indicate any signature of Rajan Tiwary on page nos. 3, 4 and 5 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 70 as stated by P.W. 59. P.W. 59 further deposed in court vide paragraph 95 that C.B.I. officials never approached him for making fair copy of statement of Rajan Tiwary for the purpose of supply to the accused persons. In this connection, learned counsel next submitted that Ext. 35 was produced in the trial court on 17.11.2005 through C.B.I. prosecutor but there is no explanation by the prosecution when, where and how prosecution received the so called confession Ext. 35 from the Magistrate and as there is no evidence of receipt of Ext. 35 it creates a serious doubt about the prosecution story. It is submitted that such objection was made during trial but was ignored by the trial court.
53. Learned counsel further submitted that both the Investigating Officer, P.Ws. 56 and 61 averred in their evidence that they prepared site plan or map of the so called place of occurrence but both the copies were not exhibited by the prosecution for the reasons best known to them. It is submitted that in the absence of the site plan as per the relevant law adverse inference has to be drawn against the prosecution and the benefit of doubt has to be given to the accused. Reliance in this connection is placed on the judgment of the Madhya Pradesh High in the case of Vijay Singh Vs. State of M. P., 2005 CRI. L. J. 299, paragraph 21.
54. Learned counsel for Rajesh Ranjan @ Pappu Yadav further submitted that evidence of prosecution witnesses are not free from Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 71 reasonable doubt, retracted confession by Rajan Tiwary is found to be tainted and not supported by independent corroboration appellant Rajesh Ranjan @ Pappu Yadav is entitled for acquittal by granting him benefit of doubt. Learned counsel also placed reliance on the judgment of the Supreme Court in the case of Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 Supreme Court 637.
55. Learned counsel for Rajesh Ranjan @ Pappu Yadav further challenged the evidence of criminal antecedent of Rajesh Ranjan @ Pappu Yadav with reference to the contents of Memo No.4204 dated 31.10.1998 on the ground that the author of the said letter i.e. the then Superintendent of Police, Purnea Sri R.S. Bhatti did not examine himself to support the contents of the letter dated 31.10.1998. In this connection, he referred to the evidence of P.W. 18 who having taken dictation from Sri Bhatti had typed the letter but stated in paragraph 4 of his evidence that he had no personal knowledge about the contents of the letter. Reliance in this connection is placed over the judgment in the case of Kamal Kanto Das Vs. State, AIR 1959 Calcutta 342(DB) and Babulal Bajpai Vs. The State AIR 1959 CRI. L. J. 693.
56. Learned counsel further submitted that the evidence of P.W. 18 is in the nature of hearsay which cannot be taken into account to decide the accusation made against Rajesh Ranjan @ Pappu Yadav. According to learned counsel the so called criminal antecedent of Rajesh Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 72 Ranjan @ Pappu Yadav has vitiated the trial because the trial court has allowed itself to be prejudiced by the so called criminal antecedent of Rajesh Ranjan @ Pappu Yadav. Reliance in this connection is placed over the judgment of the Supreme Court in the case of Kalyan Kumar Gogoi Vs. Ashutosh Agnihotri and another, (2011) 2 SCC 532, paragraphs 31, 33, 34, 35, 37 and 38. In this connection, learned counsel also pointed out that the so called criminal antecedent is irrelevant and inadmissible in view of Section 54 of the Evidence Act.
57. Learned counsel further challenged the evidence of P.Ws. 7, 20 on the ground that P.W. 7 in paragraph 1 of his evidence stated that on 8.6.1998 he had gone to Purnea Bar Library to meet a friend Advocate and there he learnt from an old acquaintance Subodh Yadav, P.W. 20 who gave him a written chit in which it was written that Rajesh Ranjan @ Pappu Yadav had called a man named Rajan Tiwary in Purnea who is about to kill M.L.A. Dilip Yadav and C.P.M. M.L.A. Ajit Sarkar. Similar statement was also given by P.W. 20 in paragraph 1 of his evidence. It is submitted that if the two statements are true P.Ws. 7, 20 were required under law to lodge F.I.R. under Section 154 Cr.P.C. against Rajesh Ranjan @ Pappu Yadav and Rajan Tiwary. Having not done so strong inference of falsehood of the said statement and chit dated 8.6.1998 has to be drawn and consequential benefit be given to the accused and suitable stricture passed as per law against P.W. 7 and also Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 73 action if any as per law be ordered against P.W. 7. According to learned counsel the chit is a document within the meaning of Section 3 of the Evidence Act. The said chit therefore, could have been proved to be admissible in evidence only in accordance with Sections 61 to 65. The evidence of said chit cannot be received/given by oral evidence under Section 59 and 60 of the Evidence Act as has been done by P.Ws. 7, 20 which is hit by Rule of hearsay evidence and is liable to be inadmissible in evidence. Reference and reliance in this connection is placed over the judgment of the Supreme Court in the case of Kalyan Kumar Gogoi Vs. Ashutosh Agnihotri (2011) 2 SCC 532 as also to the earlier judgment of the Supreme Court in the case of Ram Das Vs. State of Maharashtra, AIR 1977 SC 1164, paragraph 7, which is quoted hereunder for ready reference :-
―When a prosecution witness deposes that he had received a letter containing the alleged threat of murder given to the deceased and that letter is in possession of the Police but the prosecution did not produce the letter in Court in spite of the direction of the Court to produce it the only reasonable inference that can be drawn would be that the letter did not contain such a threat and the letter if produced would have falsified the witness to that extent.‖
58. Learned counsel for Rajesh Ranjan @ Pappu Yadav further challenged the evidence of P.Ws. 7, 20 in paragraph 1 where they have Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 74 deposed that about 6-7 days prior to the murder they heard that Ajit Sarkar and one more person would be killed. P.Ws. 7, 20 do not mentioned the name of the person who gave this information, thus evidence of P.Ws. 7, 20 is hearsay and cannot be relied upon. The statement of P.W. 7 that he informed S.P., Purnea about the murder is also hearsay evidence as S.P., Purnea has not been examined. If evidene of P.W. 7 had any elementary truth, C.B.I. would have definitely examined the then S.P. Learned counsel submitted that non-examinaton of the then S.P., Purnea even after reference through P.W. 7 either by the C.B.I. or by the court under Section 311 Cr.P.C. makes the evidence of P.W. 7, 20 concocted, false and malicious, which is liable to be excluded and adverse inference be drawn against the prosecution.
59. Learned counsel with reference to paragraph 57 of the evidence of N.S. Kharayat, P.W. 61 submitted that Rajan Tiwary was interrogated during the period between 13.2.1999 till 22.2.1999 by four officers including P.W. 61 with reference to separate questions put by the four officers to Rajan Tiwary separately which was not filed in the court but disclosure statement made by him was filed in the court. In disclosure statement Rajan Tiwary has stated about commission of crime. In the said paragraph P.W. 61 further stated that disclosure statement is as good as confessional statement. According to learned counsel the aforesaid deposition of P.W. 61 is wholly contrary to law Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 75 and violative of Section 26 of the Evidence Act and cannot be relied upon to convict appellant Rajesh Ranjan @ Pappu Yadav.
60. Learned counsel for Rajesh Ranjan @ Pappu Yadav further submitted that on 19.8.2006 during trial Rajesh Ranjan @ Pappu Yadav made objection against Ext. 39, so called photograph, material Ext. VII and Ext. 40 but due to failure of video conference facility the trial court could not pass any order on the objecton as made by Rajesh Ranjan @ Pappu Yadav which caused serious incurable prejudice to him even then the trial court refused to permit Rajesh Ranjan @ Pappu Yadav to peruse the deposition of the witnesses before recording his statement under Setion 313 Cr.P.C. The trial court has failed to testify the genuiness of the so called photograph, material Ext. VII which was not even put to the appellant during his 313 Cr.P.C. statement when so recorded by the trial court on 16.11.2006. The prosecution filed supplementary charge sheet against Rajesh Ranjan @ Pappu Yadav and in the said charge sheet no.4/99 he had only been provided with so called black and white Xerox copy of the photo (later material Ext. VII) and other documents. The alleged photo may also have been filed in the 10.5.1999 charge sheet submitted by P.W. 61 but the appellant had no opportunity on any occasion to see the so called photograph. The objection made only on the basis of dim, black and white Xerox copy of photograph so provided to the appellant under Section 207 Cr.P.C. This exhibit in absence of its Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 76 original Ext. M/VII is like the chit dated 8.6.1998 as referred by P.W. 7 and is inadmissible in law as it is neither a primary nor a secondary evidence in law. Reliance in this connection on the judgment of the Supreme Court in the case of R.V.F. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple, JT 2005(11) SC 574 and The Roman Catholic Mission Vs. The State of Madras and Anr., AIR 1966 SC 1457.
61. Learned counsel for Rajesh Ranjan @ Pappu Yadav with reference to the judgment of the Supreme Court in the case of Arun Balakrishnan Iyer and another Vs. M/s. Soni Hospital and others, AIR 2003 Madras 389 submitted that the documents being Photostat copies could not be admitted in evidence without producing the original.
The trial court has not even actually put the so called photo to the appellant during 313 statement, hence the material object, Ext. M/VII is liable to be excluded from the evidence.
62. Learned counsel for the appellant Rajesh Ranjan @ Pappu Yadav challenged the seizure of two steel core portions recovered from the car of the deceased bearing Registration No.BHK 1426 on 3.3.1999 vide seizure memo, Ext. 10 and certified to be steel core portions of bullets fired from assault rifle under report dated 1.4.1999, Ext. 9/2 on the ground that Madhvi Sarkar wife of deceased Ajit Sarkar filed petition dated 19.7.1998 before C.J.M., Purnea for return of the Car Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 77 which was considered by learned C.J.M., Purnea on 25.7.1998 and after due verification the said car was handed over to Madhvi Sarkar and at her instance the car was removed from the spot to Nitu da's garage for repairs where its seat, mat were removed and kept in a cornor of the garage. No bullet, bullet pieces could be found in the car seats. It was for the prosecution to have examined Madhvi Sarkar to explain the recovery of the two steel core portions from the seat of the car made on 3.3.1999. It is wholly improper for the prosecution to connect the appellants with the alleged recovery made from the seat of the car on 3.3.1999 when admittedly car was in the garage for repairs and there is neither any known effort nor any explanation from the prosecution as to why the weapon was not recovered from any of the accused persons.
63. Learned counsel for Rajesh Ranjan @ Pappu Yadav further submitted that while recording his statement under Section 313 Cr.P.C. there has been non-compliance of the provision as Rajesh Ranjan @ Pappu Yadav was not asked to explain the circumstances appearing against him in the prosecution evidence. He was also not questioned generally on the case which was put up against him by the prosecution witnesses. In this connection, it is pointed out that the photograph of Rajan Tiwary and Rajesh Ranjan @ Pappu Yadav, material Ext. VII and confession of Rajan Tiwary made before Delhi Court, Ext. 35 ought to have been physically shown to Rajesh Ranjan @ Pappu Yadav during Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 78 his examination. In this connection, it is submitted that the records of 313 Cr.P.C. examination do not show that Ext. 35 and the so called photograph, material Ext. VII was ever shown physically to Rajesh Ranjan @ Pappu Yadav and his explanation taken, the wording of questions put by the court on this point and sequence shows beyond doubt that confession, Ext. 35 or photograph were not physically shown to Rajesh Ranjan @ Pappu Yadav and others which fact is also confirmed by the lawyer who appeared on behalf of appellant in the trial court. In absence of physical showing and explanation taken the photograph and confession cannot be used against any of the appellant. In case of Ext. 35 it was particularly necessary for the prosecutor to have shown the appellant Rajan Tiwary his alleged signature and asked whether the signature was his. Additionally Rajan Tiwary shoud have been asked to explain whether he accepts or not the evidence of Metropolitan Magistrate Sri Saini, P.W. 59 that Sri Saini recorded his statement Ext. 35 in his own handwriting. The handwriting of Sri Saini, P.W. 59 as well as Rajan Tiwary ought to have been shown to Rajan Tiwary. The examination has to proceed separately and topic wise about each material circumstance in terms of paragraph 8 in the case of Ajmer Singh Vs The State of Punjab (AIR 1953 SC 76), paragraph 14 of Lallu Manjhi and another Vs. State of Jharkhand (AIR 2003 SC
854) as also paragraph 1 in Machander Vs. State of Hyderabad Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 79 (AIR 1955 SC 792). In this connection, learned counsel further submitted that any violation of fair procedure is per se violative of Article 21 of the Constitution which goes to the root and vitiates the trial and cannot be redeemed by invoking Section 463, 465 Cr.P.C.
64. Learned counsel with reference to the judgment in the case of Machander(supra) submitted that Supreme Court acquitted the accused for non-compliance of Section 313 Cr.P.C. observing each material point must be put to the accused. Learned counsel for Rajesh Ranjan @ Pappu Yadav submitted that Rajesh Ranjan @ Pappu Yadav had objected the so called material Ext. VII during the trial on 5.11.2003, the trial court had then observed that the objection with regard to material Ext. VII will be decided at the end of the trial but the trial court neither rendered any finding on the genuineness of material Ext. VII nor did the trial court questioned Rajesh Ranjan @ Pappu Yadav about material Ext. VII in his examination under Section 313 Cr.P.C. on 16.11.2006. It is further submitted that during trial on 8.11.2006 Rajesh Ranjan @ Pappu Yadav requested the trial court to allow him to peruse the statement of the witnesses for one week but he trial court not only denied such opportunity to Rajesh Ranjan @ Pappu Yadav but also deprived him of the opportunity to consult his lawyer on the questionnaire which was put to him for examination under Section 313 Cr.P.C. as copy of the questionnaire was not given to him Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 80 sufficiently in advance to consult his lawyer contrary to the dictim laid down by Supreme Court in Basavaraj R. Patil and others Vs. State of Karnataka and others, 2001 SCC (Crl.) 87, paragraph 33.
65. Learned counsel for appellant Rajesh Ranjan @ Pappu Yadav with reference to the judgment in State of Assam Vs. Nand Kumar Singh, 1973 Cr. L.J. 521, paragraph 29 submitted that the three appellants were not put any specific question either on the confession dated 22.2.1999 or on the retraction made by Rajan Tiwary dated 1.3.1999, 30.3.1999 and 1.5.1999 which is contrary to the provision contained in Section 313 Cr.P.C. and placing reliance on the judgment of the Supreme Court in Tara Singh Vs. The State, AIR 1951 SC 441, paragraph 24, Director of Customs, Akhnoor, Jammu and Kashmir Vs. Yaspal and another, (2009) 4 SCC 769, Bharat Swain Vs. The State, 1967 CRI. L. J. 1427, paragraph 9, Shaikh Maqsood Vs. State of Maharashtra, (2009) 6 SCC 583, paragraph 9, Ashok Kumar Sharma Vs. State of Rajasthan, (2013) 2 SCC 67 and Kalpnath Rai Vs. State (through C.B.I. (1997) 8 SCC 732 submitted that for failure to follow the mandatory provision the appellants deserve acquittal.
66. Learned counsel for appellant Rajesh Ranjan @ Pappu Yadav placing reliance on the judgment of the Supreme Court in the case of John Pandian Vs. State represented by Inspector of Police, Tamilnadu, (2010) 14 SCC 129, paragraphs 89 to 91 and 94 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 81 submitted that neither the print outs nor the evidence of Ramashray Rajak and Om Prakash Ramnani, P.Ws. 6, 52 identified either the caller or the called or the contents of conversation, as such, according to learned counsel the same cannot be a evidence to establish conspiracy between Rajesh Ranjan @ Pappu Yadav and others.
67. Learned counsel for Rajesh Ranjan @ Pappu Yadav with reference to the evidence of P.W. 61 paragraph 108 submitted that Ravindra Nath Singh, P.W. 7 had not made statement before P.W. 61 during his examination under Section 161 Cr.P.C. that Rajesh Ranjan @ Pappu Yadav during election speech gave threat to the deceased Ajit Sarkar as has been claimed by P.W. 7 in paragraph 1 of his evidence. The threat does not even remotely indicate that P.W. 7 heard the threat himself. P.W. 7 having not made such statement before the I.O. his evidence about the threat made in the court cannot be relied upon. Similarly evidene of Lal Bahadur Oraon, P.W. 10 about the threat extended by Rajesh Ranjan @ Pappu Yadav to deceased Ajit Sarkar in his election speech is also not to be relied upon as the said witness had not stated such fact before the I.O., P.W. 61 vide paragraph 107.
68. Learned counsel for Rajesh Ranjan @ Pappu Yadav with reference to the evidence of P.W. 7 pages 33, 34 of the paper book, P.W. 8 paragraph 4 page 42 submitted that landlords were angry about 1992 directives of C.P.I.(M) party whereunder Ajit Sarkar snatched 25000 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 82 acres of land from 20-25 big landlords and distributed the same to landless which caused anger amongst the big landlords who were dispossessed from their land resulting in law and order problem. In this connection reliance has also been placed on the evidence of Ramdeo Prasad and Shyamanand Yadav, D.Ws. 16, 17. According to counsel for appellant the landlords whose lands were grabbed even on the day of occurrence had immediate provocation and strongest motive to kill Ajit Sarkar. According to learned counsel it can never be the case of the prosecution nor is it the case of the prosecution that only Rajesh Ranjan @ Pappu Yadav had motive to kill Ajit Sarkar. In this connetion, learned counsel placed reliance on the observations of Harold Laski in Grammer of Politics ―A man may forgive the murder of his parents.....but he will never forgive the confiscation of his property‖. It is submitted that in the light of the aforesaid evidence of P.Ws. 7, 8 P.Ws. 56, 61 both were required to investigate the rift beween landlord and deceased Ajit Sarkar but such aspect was never investigated which would be evident from paragraphs 216, 235, 237, 238, 242, 243 and 245 of the evidence of P.W. 61.
69. Learned counsel for Rajesh Ranjan @ Pappu Yadav with reference to the evidence of Dr. R.D. Raman, P.W. 50 paragraph 9 submitted that Dr. Raman is totally independent of both Rajesh Ranjan @ Pappu Yadav and Ajit Sarkar as he is full time medical practitioner Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 83 who has stated in the aforesaid paragraph that in his capacity as a resident of Purnea he says that there was no ill-relation between Rajesh Ranjan @ Pappu Yadav and Ajit Sarkar. Similar is the evidence of Pankaj Kumar Yadav, P.W. 48 in paragraphs 67, 68, 69, 70. Learned counsel with reference to evidence of Ramesh Oraon, P.W. 25 submitted that P.W. 25 is the Bodygurad of Ajit Sarkar whose loyalty to Ajit Sarkar was never challenged, even P.W. 25 says that relation between Ajit Sarkar and Rajesh Ranjan @ Pappu Yadav was cordial. This prosecution witness has not been declared hostile by C.B.I., as such, his testimony about the cordial relation between Rajesh Ranjan @ Pappu Yadav and Ajit Sarkar is required to be accepted.
70. Learned counsel for Rajesh Ranjan @ Pappu Yadav submitted that defence has made application to the trial court for site inspection which was opposed by the C.B.I. According to learned counsel it was necessary for the trial court to visit the place of occurrence. The trial court's rejection of defence plea for inspection of place of occurrence vide its order dated 24.7.2007 has also prejudiced the case of the defence which the prosecution ought to have conceded. This was so because the court ought to have seen whether the witnesses could see the murder from distance narrated by P.Ws. 8 to 10. The court could have appreciated how close P.W. 19 Ranu Kumar Singh was to the place of occurrence. Scene of offence is an objective fact. Not going Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 84 to the scene of offence has deprived the court of an objective assessment of P.Ws. 8 to 10 and 19 which has caused failure of justice. There is no question of the court either believing or disbelieving the scene of occurrence. In this connection reference is also made to the Memoirs of M. Hidyatullah in ―My Own Bosswell‖ (2002 reprint) to emphasise the importance of site inspection. Site inspection referred to in the Memoirs was done by the Division Bench of the Nagpur High Court comprising Mr. Justice Hemeon and Mr. Justice M. Hidyatullah. The description of the site inspection as narrated in the memoirs is quoted hereinbelow for ready reference :-
―There were a few sensational cases. Only one needs mention. An Advocate was charged with murder. A dead body was found in his house buried in a temporary and hastily constructed grave. This was the body of his friend whom he had invited by letter, as he explained, to borrow some money. The letter was a fact. The case of the Advocate was that he had suddenly to leave Nagpur and did not meet him. His friend had duly come and was met by one of his relations. They had taken drugs and the friend died of heart failure. To avoid scandal, the body was concealed till the lawyer returned but by then it was too late as discovery had taken place. The cause of death was not established even in an elaborate autopsy and there was no suggestion of foul play. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 85 The conviction was based on the evidence of a servant who claimed to have seen the victim done to death, through a hole in the wall. Hemeon and I went to the place and looked through the hole and mapped the area visible. We agreed as to that and we got the lawyers also to verify our map. The hole was so small and so located that almost nothing of the floor area could be seen. We saw the walls and no murder was committed against the wall. The boy had deposed that the victim was strangled on the floor. The Trial Judge had believed this child witness without visiting the room. We disbelieved him and there was no other evidnce of murder except the suspicious fact of secret burial, for which also there was some explanation. This gave force to the alibi, which was strong.‖
71. Learned counsel for Rajesh Ranjan @ Pappu Yadav further submitted that C.B.I. procured witnesses and established the same with reference to the evidence of P.W. 10 paragraph 5 where P.W. 10 stated that his address was given to the C.B.I. by the C.P.M. party leader whose name he does not know. He was brought before C.B.I. authorities by the party worker Narendra Singh. In the light of the aforesaid evidence it is submitted that witnesses did not come to the C.B.I. camp office for recording their statement on their own and in the process C.B.I. omitted to examine natural witness like Subhash Singh who had not only reached Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 86 the place of occurrence but was the first who informed the wife of the deceased about the occurrence and thereafter took steps to shift the injured Bodyguard Ramesh Oraon, P.W. 25 to the hospital in Tempo. Learned counsel also submitted that there has been inordinate delay in recording the 161 Cr.P.C. statement by C.B.I. as the statement of eye witnesses i.e. P.Ws. 8 to 10 was recorded on 24.10.1998, 29.10.1998 and 28.10.1998 respectively i.e. beyond four months of the occurrence without there being any explanation from P.W. 8 as to why he did not complain before the C.J.M., Purnea about the factum of his signature having been taken by P.W. 56 on blank paper as also failure of P.W. 56 to record the statement of eye witnesses i.e. 8, 9 and 10. In this connection, learned counsel submitted that Smt. Madhvi Sarkar having filed petition dated 19.7.1998 before the C.J.M. for release of the car of the deceased on which C.J.M., Purnea passed order dated 25.7.1998 after due verification, there is no plausible reason for P.Ws. 8 to 10 not to inform C.J.M., Purnea about the conduct of P.W. 56 that he had obtained signature of P.Ws. 8 and 10 on blank paper at the time of cremation of Ajit Sarkar but is neither examining the eye witnesses nor taking action against the accused persons.
72. Learned counsel for Rajesh Ranjan @ Pappu Yadav submitted that in the given facts and evidence of the present case there is suspicion against Rajesh Ranjan @ Pappu Yadav but suspicion cannot Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 87 be a substitute for unimpeachable evidence and unless unimpeachable evidence is available conviction cannot be maintained. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Sarwan Singh Rattan Singh (supra), relevant paragraphs whereof is quoted hereinbelow for ready reference :-
―It is no doubt a matter of regret that a foul cold-blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that, considered as a whole, the prosecution story may be true; but between ‗may be true' and ‗must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence.‖
73. In this connection, learned counsel also placed reliance on the judgment of the Supreme Court in the case of Narendra Singh Vs. State of M.P., (2004) 10 SCC 699 and Dilip and another Vs. State of M.P., (2007) 1 SCC 450.
74. Learned counsel for Rajesh Ranjan @ Pappu Yadav further submitted that in the instant trial waters of admissible and of inadmissible evidence have mixed which can neither be separated nor filtered, hence liable to be rejected in its entirety. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 88
75. Leaned counsel further submitted that even if P.Ws. 8 to 10 are believed for sake of argument there is hardly sufficient, acceptable and admissible evidence of unlawful agreement under Section 120A of the Penal Code between Rajesh Ranjan @ Pappu Yadav and the other accused persons for murder of Ajit Sarkar and others to uphold the conviction of Rajesh Ranjan @ Pappu Yadav under Section 120B of the Penal Code.
76. Learned counsel for Rajesh Ranjan @ Pappu Yadav next submitted that the circumstances as relied upon by the prosecution for corroboration are not such which should persuade this Court to infer guilt of Rajesh Ranjan @ Pappu Yadav on cogent and firmly established true fact. The circumstances, are neither unerringly pointing towards the guilt of Rajesh Ranjan @ Pappu Yadav nor are such forming chain so complete that there is not escape from the conclusion that within all human probability the conspiracy to kill Ajit Sarkar was hatched by Rajesh Ranjan @ Pappu Yadav and none else. The corroborative circumstance in order to sustain conviction is neither complete nor capable of explanation of any other hypothesis than the guilt of Rajesh Ranjan @ Pappu Yadav. The corroborative evidence is neither consistent with his guilt nor inconsistent with his innocence, hence, there is hardly any cogent and reliable corroboration of the confession dated 22.2.1999 which could lend support to the contents of the confession. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 89 According to learned counsel Rajesh Ranjan @ Pappu Yadav in his statement under Section 313 Cr.P.C. has explained his defence which is consistent, natural and probable and is worth credence and belief. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Hanumant Govind Nargunkar Vs. State of M.P., AIR 1952 SC 343, paragraph 10, Gambhir Vs. State of Maharashtra, AIR 1982 SC 1157, Vidya Sagar Vs. State of U.P., AIR 1977 SC 1116, paragraph 11, State of Goa Vs. Sanjay Thakran, (2007) 3 SCC 755 and Munna Kumar Upadhyay @ Munna Upadhyaya Vs. State of Andhra Pradesh , (2012) 6 SCC 174.
77. It is further submitted on behalf of Rajesh Ranjan @ Pappu Yadav that the trial court has held the appellant Rajesh Ranjan @ Pappu Yadav as sole conspirator under Section 120B of the Penal Code. There is no appeal filed against the said finding of the judgment and order by the State of Bihar through C.B.I. In such circumstances, this Court may accept the said finding as final and binding upon the respondent State of Bihar through C.B.I. There cannot be any alteration of the said finding by this Court at this stage in absence of any appeal made by the State through C.B.I. challenging the said finding.
78. Learned counsel for Rajesh Ranjan @ Pappu Yadav further submitted that there is no evidence to connect Rajesh Ranjan @ Pappu Yadav with the conspiracy hatched to terminate Ajit Sarkar. In this Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 90 connection it is pointed out that once inadmissible evidence like Ext. 35, material Ext. VII, criminal antecedent etc. is excluded there is nothing in law to connect Rajesh Ranjan @ Pappu Yadav with the offence of conspiracy. Learned counsel further pointed out that the prejudice in the mind of the trial court is inconsistent with the concept of fair trial of the accused. According to learned counsel learned trial court with no justification allowed itself to be influenced by utterly inadmissible evidence like disclosure statement, Ext. 35, photograph material Ext. VII criminal antecedent etc. The effect of such blatant illegality is that the entire trial is in violation of Article 21 of the Constitution and the learned trial court has certainly violated the mandate of just, fair and reasonable trial enshrined in Articles 14, 21, 22 of the Constitution. In this connection, reliance is placed on the judgment of the Supreme Court in the case of Ashok Kumar Sharma Vs. State of Rajasthan, 2013(2) SCC 67 where the Supreme Court dealing with the right of the accused under Section 50 of the N.D.P.S. Act of being searched in presence of Gazetted Officer/Magistrate observed that non-compliane of Section 50 of the N.D.P.S. Act would vitiate the entire trial. It is submitted that in the instant case failure of P.W. 59 to observe the safeguards under Sub- sections (2)(3) of Section 164 Cr.P.C. as also Rule 7 of the Delhi High Court Rules before recording the statement of Rajan Tiwary has vitiated the entire trial proceeding taken thereafter.
Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 91
79. Learned counsel for Rajesh Ranjan @ Pappu Yadav further assailed the evidence of P.W. 8 in the light of his deposition in paragraph 2, pages 39, 40(top) where he categorically stated that the evidence which he recorded in court was not recorded by him before the I.O. of the local police under Section 161 Cr.P.C. He further assailed his evidence in the light of the contents of paragraph 7 at page 44 of the paper book where P.W. 8 stated that he had not given any statement before the local police on 14.6.1998 that he is an eye witness of the occurrence. He had also not given such statement on 15.6.1998 but had put signature over blank paper. Learned counsel assailed the evidence of P.W. 8 with reference to the contents of paragraph 7 of his evidence at page 45 where the witness categorically denied the suggestion that he had made any statement before Sri A.K. Jha Circle Inspector, Purnea on 14.6.1998 at 17.45 hours that he had come to the house of his brother in the morning between 7-8 A.M. and he was taking walk at about 4.30 P.M. when Madhusudan Rishi resident of Kaliganj and Lal Bahadur Rishi of Khakibari came. Witness also denied other suggestion made in this regard.
80. Learned counsel for Rajesh Ranjan @ Pappu Yadav further challenged the evidence of P.W. 8 with reference to his deposition in paragraph 11 at page 49(bottom) where witness admitted that he had not shown the place from where he had seen the occurrence to any one. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 92 Learned counsel further impeached the evidence of P.W. 8 with referene to his evidence at page 57(top), 61, 62 and 68 that the witnesses himself has admitted in paragraph 58(bottom) that he did not inform the wife and son of the deceased about the occurrence.
81. Learned counsel for Rajesh Ranjan @ Pappu Yadav challenged the evidence of P.W. 9 with reference to his evidence in paragraph 5 at page 76 that he reached the place of occurrence soon after the assailants made their escape and then he touched the deceased to confirm his death.
82. Learned counsel also assailed the evidence of P.W. 10 with reference to his deposition in paragraph 6(bottom) that he and others had not disclosed about the occurrence to the local police including superior authorities, though they had come to the place of occurrence within 15- 20 minutes of the occurrence as also along with the Hon'ble Chief Minister. Learned counsel further assailed the evidence of P.W. 10 with reference to the contents of paragraph 10 at page 106, 107 where the witness has admitted that he, Kalyan Chandra Sarkar and Madhusudan Rishi were the first person who arrived at the place of occurrence and after they raised alarm others came, yet the witness and his friends did not choose to disclose the identify of the accused persons to any one on the date of occurrence. Learned counsel submitted that if the witnesses had not chosen to disclose about the occurrence to the local police Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 93 within reasonable time of the occurrence and had made their statement for the first time after four months of the occurrence before the C.B.I., such statement cannot be relied upon.
83. Learned counsel for Rajesh Ranjan @ Pappu Yadav finally submitted that many prosecution witnesses have turned hostile as the witnesses have not supported the genesis of prosecution case and as per settled law by the Supreme Court in Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi), AIR 2005 SC 2804, paragraphs 34, 35 and 42 the appellant may be permitted to rely on the evidence of such hostile witnesses for grant of benefit of doubt.
Submission on behalf of C.B.I.
84. Learned Additional Solicitor General of India appearing for the C.B.I. submitted that the Government of India issued notification dated 28.9.1998, Ext. 42 entrusting the investigation of K.Hat P.S. Case No.230/98 to the C.B.I. In the light of the notification dated 28.9.1998, for administrative reasons, Superintendent of Police, C.B.I. on 12.10.1998 registered RC 12(S)/98/SIC-IV/New Delhi, Ext. 31/1 incorporating the contents of the fardbeyan of K.Hat P.S. Case No.230/98. Having registered RC 12(S)/98/SIC-IV/New Delhi the same was forwarded to the competent court and was received in the court of Special Magistrate, C.B.I., Patna on 29.10.1998, meanwhile investigating team of C.B.I. having reached Purnia on 22.10.1998 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 94 informed the C.J.M., Purnia about the registration of RC 12(S)/98/SIC- IV/New Delhi and thereafter recorded the statement of M/s. Kalyan Chandra Sarkar, Madhusudan Rishi, Lal Bahudar Oraon, P.Ws. 8, 9 and 10 on 24.10.1998, 29.10.1998 and 28.10.1998 respectively. Delhi police arrested Rajan Tiwary on 12.2.1999 and produced him before Sri K.S. Mohi, Metropolitan Magistrate, Tis Hazari on 13.2.1999. Sri Mohi remanded Rajan Tiwary to judicial custody for 14 days i.e. until 26.2.1999 in connection with R.K. Puram P.S. Case No. 122/99, which is evident from application dated 13.2.1999 filed by S.I. Palvinder Singh, Special Team Crime Branch, Ext. F/4. Counsel for C.B.I., however, submitted that before Rajan Tiwary could be lodged in judicial custody in Tihar Jail pursuant to order dated 13.2.1999 passed by Sri Mohi another order was passed on the same day i.e. 13.2.1999 (Second Saturday) by Duty Magistrate on the basis of disclosure made by Rajan Tiwary to Delhi Police authorizing his custody to the C.B.I. for 10 days i.e. until 23.2.1999. In the light of the subsequent order of the Duty Magistrate I.O. of the present case, P.W. 61 received Rajan Tiwary in muffled condition with warrant and made such endorsement on the petition dated 13.2.1999 filed by S.I. Palvinder Singh, which is evident from Ext. F.
85. For better appreciation of the aforesaid submission this Court directed the learned counsel for C.B.I. to refer to the subsequent Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 95 order dated 13.2.1999 passed by the Duty Magistrate authorizing C.B.I. custody of Rajan Tiwary until 23.2.1999 from the records. Counsel then submitted that the subsequent order passed by the Duty Magistrate on 13.2.1999 may be available in the records of R.K. Puram P.S. Case No.122/99. To verify the aforesaid submission of the learned counsel this Court under order dated 12.2.2013 called for the records of R.K. Puram P.S. Case No.122/99, which was received in this Court on 18.2/2013. With the assistance of the counsel for the parties the records of R.K. Puram P.S. Case No.122/99 was examined but neither the original nor the copy of subsequent order dated 13.2.1999 passed by the Duty Magistrate authorizing the C.B.I. custody of Rajan Tiwary until 23.2.1999 was found. Learned counsel then submitted that copy of subsequent order dated 13.2.1999 may not be available in the records of R.K. Puram P.S. Case No.122/99 but copy thereof having been filed by Rajan Tiwary himself as Annexure-8 series to the supplementary affidavit filed in Cr. Misc. No.10646/2003(Rajan Tiwary Vs. State) there should not be any dispute about the existence of the said order.
86. Learned counsel for C.B.I. further submitted that C.B.I. having obtained possession of Rajan Tiwary on 13.2.1999 interrogated Rajan Tiwary who made disclosure statement vide memo dated 17.2.1999, Ext. 43/1 pointing out the manner, place of occurrence and the P.C.O. from which he informed Rajesh Ranjan @ Pappu Yadav Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 96 about the killing of Ajit Sarkar. On the same day Sri N.H. Kharaiyat, P.W. 61 searched Premise No.173, North Avenue, New Delhi in occupation of Sri Rajesh Ranjan @ Pappu Yadav in presence of independent witnesses Sri A.K. Dhand, Assistant M/O Industry, Department of Industrial Policy and Promotion, Udyog Bhawan, New Delhi and Sri B.K. Bhardwaz, U.D.C., M/O Entry, Department of Industrial Policy and Promotion, Udyog Bhawan, New Delhi and recovered letter head pad of Sri Rajesh Ranjan @ Pappu Yadav, Member of Parliament, four sheets blank and one coloured photograph of Mr. and Mrs. Rajesh Ranjan @ Pappu Yadav, son Sarthak and one more person vide search list, Ext. 1/18, material Ext. VIII. To confirm the call referred to in the disclosure statement of Rajan Tiwary call details, Ext. 3 series were obtained.
87. Appellant Anil Kumar Yadav was arrested by the C.B.I. on 17.2.1999 and taken on police remand for 10 days, made disclosure statement vide memo dated 18.2.1999, Ext. 43 on the basis of which red bullet motorcycle used in the crime was also recovered on the same day i.e. 18.2.1999 vide pointing out cum recovery and seizure memo dated 18.2.1999, Ext. 40. In the light of the disclosure statement made by Rajan Tiwary before the C.B.I. on 17.2.1999 I.O. of C.B.I. filed petition dated 22.2.1999 Ext. 41 before the Chief Metropolitan Magistrate, Delhi so as to enable Rajan Tiwary to record his statement under Section 164 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 97 Cr.P.C. Perusal of petition dated 22.2.1999 Ext. 41 indicates that C.B.I. arrested accused Rajan Tiwary who played main role in the crime and unearthed the actual criminal conspiracy attributing the role of other accused persons. Statement of Rajan Tiwary was recorded by the C.B.I. whereunder he supported the case of C.B.I. and made statement against other accused divulging their conspiracy and involvement of other important suspect who are having good social status in the society. In the light of the request made in petition dated 22.2.1999, C.M.M., Delhi made over the petition to Sri Gurdeep Singh Saini, Metropolitan Magistrate under his endorsement dated 22.2.1999 itself, Ext. 36. Having received petition dated 22.2.1999 Sri Gurdeep Singh Saini Metropolitan Magistrate considered the petition and directed that the accused Rajan Tiwary be again produced before him on the same day at 12.30 P.M. In the light of the aforesaid order of the Metropolitan Magistrate Rajan Tiwary was again produced before Sri Gurdeep Singh Saini Metropolitan Magistrate at 12.30 P.M. when learned Magistrate made further endorsement on the petition, which is marked as Ext. 36/1 and proceeded to record following order :-
22.02.99 ―An application for recording of statement of 12.30 accused Rajan Tiwari s/o Vishwa Jeevan Ram Tiwari PM was moved before Ld. CMM and the same was assigned to me. The accused Rajan Tiwari was produced in muffled face before me. I have sent all the police Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 98 persons out of the Court and the accused is made to sit in my chamber. I have explained to the accused that he is not bound to make his statement. He is also told that if he makes the statement it can be used against him as evidence. He insisted on making the statement. I have given him time of one hour to think over it again.‖ Sd/-
MM 22.02.1999
88. In the light of the order passed by the Metropolitan Magistrate at 12.30 P.M. he again interacted with Rajan Tiwary at 1.15 P.M. and recorded the following order as also his satisfaction about the voluntary nature of the statement which Rajan Tiwary was proposing to make before him.
1.15 PM ― Present accused Rajan Tiwari in my chamber. I have again asked the accused that whether he wants to give confessional statement. He stated that he want to bring real culprit to book and I am making statement voluntarily. I have again warned him that he is not bound to make confessional statement and his statement can be used as evidence against him, but he persisted in making the statement. I have questioned him as follows.
Ques :- Why do you want to make confessional statement? Ans :- eSa viuk c;ku blfy, nsuk pkgrk gwa fd eSa vc lq/kjuk pkgrk gwa vkSj vlyh vknfe;ksa dks lkeus ykuk pkgrk gwaA Ques :- Whether you have been pressurized by Police or CBI to make statement?
Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 99
Ans :- eq>s fdlh us Hkh ncko ugha MkykA
eSa viuh ethZ ls c;ku nsuk pkgrk gwaA
RO & AC Sd/-
Sd/- MM Delhi.
Rajan Tiwari 22.02.99
I am satisfied that the accused Rajan Tiwari is
making confessional statement voluntarily without any force from any quarter in order to make clean breast. Let his statement u/s 164 Cr.P.C. be recorded.
Disclosure of Sh. Rajan Tiwary s/o Sh. Vishwa Jeevan Tiwari age-26 years R/o village Saharsa, P.O. Saharsa, PS Gagha, Distt. Gorakhpur, UP.
Without oath.
89. The signature of Rajan Tiwary over the order sheet of the learned Metropolitan Magistrate and the last page of the confessional statement has been marked as Exts. 34 and 34/1. Confessional statement of Rajan Tiwary has been marked as Ext. 35. Perusal of confessional statement of Rajan Tiwary Ext. 35 indicates that the same has been recorded in four pages but Rajan Tiwary put his signature only on the 4th page, which has been marked as Ext. 34/1.
90. Rajan Tiwary was put on T.I. Parade on 1.5.1999 in Beur Jail, Patna and was identified by K.C. Sarkar, P.W. 8 but before proceedings could be completed disturbance was created and the Magistrate submitted report dated 3.5.1999, Ext. 7. Another T.I. Parade Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 100 was arranged on 12.5.1999 when Rajan Tiwary was identified by P.Ws. 9 and 10 vide T.I. Chart, Ext. 6. C.B.I. having completed investigation in RC 12(S)/98 submitted charge sheet no.01 dated 10.5.1999 indicating Rajan Tiwary and Anil Kumar Yadav as the accused in judicial custody and sent up for trial. The other three i.e. Rajesh Ranjan @ Pappu Yadav, Harish Chaudhary and Amar Yadav were shown as absconder. Rajesh Ranjan @ Pappu Yadav was arrested on 23.5.1999 and supplementary charge sheet no.04 dated 19.8.1999 was submitted naming Rajesh Ranjan @ Pappu Yadav in column no.1 of the supplementary charge sheet, Harish Chaudhary and Amar Yadav were again shown as absconder.
91. After issue of notification of the Government of India dated 28.9.1998 and registration of RC12(S)/98/SIC-IV/New Delhi by the C.B.I. on 12.10.1998 but before submission of charge sheet dated 10.5.1999, supplementary charge sheet dated 19.8.1999 appellant Rajesh Ranjan @ Pappu Yadav filed Cr. Writ Petition No.258 of 1999 before Delhi High Court on 26.3.1999 praying inter alia to quash the notification of the Government of India dated 28.9.1998 entrusting investigation of Case No.230/98 P.S. K. Hat, Purnia to C.B.I. including investigation conducted by C.B.I. after registration of RC 12(S)/98/SIC- IV/New Delhi on the ground that after submission of charge sheet in F.I.R. No.230/98, P.S. K. Hat, Purnia, Bihar cognizance of the offence Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 101 found true during investigation by the Purnia police having already been taken by the competent court i.e. C.J.M., Purnia, C.B.I. had no jurisdiction to investigate de novo. It is submitted by the counsel for the C.B.I. that from perusal of writ petition, paragraph 4 and the counter affidavit filed on behalf of the respondents it would appear that appellant Rajesh Ranjan @ Pappu Yadav was aware of the disclosure statement, confession recorded under Section 164 Cr.P.C. by Rajan Tiwary and Anil Yadav.
92. In response to the prayer made in the writ petition C.B.I. filed counter affidavit stating that the appellant Rajesh Ranjan @ Pappu Yadav is a dreaded criminal who is also involved in the murder of Kalyan Chandra Sarkar. His involvement in the said murder has come to light during investigation of the said case by the C.B.I. pursuant to the notification of the Government of India dated 28.9.1998 and registration of RC 12(S)/98/SIC-IV New Delhi on 12.10.1998. In the light of the material collected during investigation non-bailable warrant has been issued for his arrest on 6.3.1999 but he is absconding and evading arrest. Delhi High Court having considered the contents of writ petition, counter affidavit and having noticed the suppression made by appellant Rajesh Ranjan @ Pappu Yadav dismissed the writ petition imposing cost of Rs. 25,000/- under order dated 5.5.1999. Perusal of the said order would indicate that while dismissing the writ petition Delhi High Court Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 102 held that the writ petition was filed by Rajesh Ranjan @ Pappu Yadav to thwart further investigation by the C.B.I. in the murder of Ajit Sarkar. Delhi High Court in the said order also noticed the suppression made by Rajesh Ranjan @ Pappu Yadav that he had earlier filed an application for anticipatory bail which was subsequently withdrawn by him but such information was withheld from the Delhi High Court. Having noticed the said suppression, Delhi High Court directed its Registrar General to file a complain before an appropriate Court against the appellant for making false statement in Paragraph-10 of the petition that there was no question of his absconding from prosecution when it is clear that on the date of the petition i.e. 26.3.1999 appellant Rajesh Ranjan @ Pappu Yadav was already an absconder evading arrest in response to warrant issued by the Special Magistrate, C.B.I., Patna on 6.3.1999.
93. Counsel for the C.B.I. next submitted that appellant Rajan Tiwari also challenged charge-sheet submitted by the C.B.I in R.C 12 (S)/98/ SIC-IV New Delhi dated 10.5.1999 before this Court by filing Cr. Misc. No. 24843/2000 on 30.8.2000 on the ground that though the provisions of Section 173(8) of Cr.P.C. provides for further investigation but that does not mean a fresh investigation which appears to have been done by the C.B.I. in the present case as in its investigation C.B.I. has propounded a new theory about the murder which is not at all in conformity with the findings of the local Purnea Police which submitted Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 103 charge-sheet dated 19.9.1998 and cognizance of the offence was also taken by the C.J.M., Purnea under order dated 23.9.1998. Aforesaid submission was repelled by the Court in Paragraph 6 of its order dated 20.3.2002, reported in 2002(4) PLJR 327 with reference to the notification of the State Government dated 11.8.1998, Ext. 8 in terms whereof State Government recommended to the Government of India under Section 6 of Delhi Police Establishment Act to entrust the investigation of K. Hat P.S. Case No. 230/98 dated 14.6.1998 to the C.B.I. and held that as the State Government had the power to take away the investigation from the local police and to entrust it to the C.B.I. which entrustment was made before the State Police submitted charge- sheet, submission of charge-sheet by the C.B.I. was not a case of further investigation into a case and the C.B.I. was authorized to investigate the case in the manner as it deemed fit and to reach its own conclusion. This Court in the bottom of Paragraph 6 clearly held that grant of consent by the State Government would tantamount to taking over the investigation from the State police and to transfer it to the C.B.I. Having held as above, the petition questioning the submission of charge-sheet by the C.B.I. was dismissed.
94. Rajesh Ranjan @ Pappu Yadav filed Cr. Misc. No.27412 of 2000 before the Patna High Court on 19.9.2000 seeking transfer of case records of K. Hat P.S. Case No.230/98 from C.J.M., Purnea to the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 104 court of Additional Sessions Judge-XI cum C.B.I. Court, Patna so as to enable the Additional Sessions Judge-XI cum C.B.I. Court, Patna to try both the sets of accused persons sent up for trial by the Purnea police under charge sheet dated 20/21.09.1998 and by the C.B.I. under charge sheet/ supplementary charge sheet dated 10.5.1999/ 19.8.1999 filed in RC No. 12(S)/98 but the application was dismissed under order dated 19.04.2001.
95. Supreme Court under order dated 25.7.2001 reported in (2004) 7 SCC 539 set aside the order dated 6.9.2000 granting bail to appellant Rajesh Ranjan @ Pappu Yadav.
96. On 9.4.2003 Madhusudan Rishi, P.W. 9 expressed his apprehension with regard to threat to his life before the trial court and the trial court under order dated 9.4.2003 appreciating the gravity of the threat directed S.P., Purnea to make necessary arrangement.
97. Supreme Court under order dated 12.3.2004 reported in (2004) 7 SCC 528 set aside the order granting bail to Rajesh Ranjan @ Pappu Yadav. Perusal of said order indicates that Supreme Court took note of the fact that large number of witnesses examined after release of the appellant on bail turned hostile and there were complaints made to the court about the threat administered by the said accused or his conspirators to witnesses in the case.
98. In the light of the complaint dated 9.3.2004 made by R.N. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 105 Singh, P.W. 7 the trial court under order dated 7.5.2004 directed Director General of Police, Bihar and S.P., Purnea to make necessary arrangement for the security of P.W. 7.
99. Supreme Court under order dated 20.7.2004 reported in (2005) 3 SCC 307 directed that Rajesh Ranjan @ Pappu Yadav be kept in prison cell like any other prisoner and should not be kept in hospital on his request which was not genuine. Furthermore contempt notice was issued to Medical Superintendent, Medical College and Hospital, Patna for furnishing false information to court. Supreme Court also observed that Rajesh Ranjan @ Pappu Yadav had surreptitiously managed to obtain his production warrant from Fast Track Court in connivance with the Peskar and used this opportunity to address election meeting at his constituency in Madhepura. The Court took suo motu cognizance of newspaper report under order dated 3.2.2005 reported in (2005) 3 SCC 310, 311.
100. Supreme Court under order dated 18.1.2005 reported in (2005) 2 SCC 42 cancelled the bail granted by the High Court to Rajesh Ranjan @ Pappu Yadav observing that the approach of the High Court was irresponsible, contrary to record and tantamounts to overruling the finding of the Supreme Court by substituting its own subjective satisfaction.
101. Supreme Court under order dated 14.2.2005 reported in Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 106 (2005) 3 SCC 284 transferred Rajesh Ranjan @ Pappu Yadav from Beur Jail, Patna to Tihar Jail, Delhi for causing and being involved in serious blatant and unabashed violation of the Bihar Jail Manual and for utter disregard to the rule of law coupled with complete inability or unwillingness of the jail authorities to prevent such violation by him.
102. During the pendency of this appeal Rajesh Ranjan @ Pappu Yadav was admitted to the privilege of bail by the High Court under order dated 18.2.2009 which was set aside under order dated 3.5.2010 reported in (2010) 6 SCC 417 with reference to the observations made by the Supreme Court in its earlier order reported in (2007) 1 SCC 70, paragraph 24 that in the facts and circumstances of the case Supreme Court found no merit in the appeal filed by Rajesh Ranjan @ Pappu Yadav which was dismissed observing that no further application for bail will be considered on his behalf in this case by any court as already a large number of bail applications have been rejected earlier both by the High Court and the Supreme Court.
Further investigation/reinvestigation and Discharge of previous set of accused by the Special Judicial Magistrate
103. Learned counsel for the C.B.I. with reference to the judgment of the Supreme Court in the case of Central Bureau of Investigation Vs. Rajesh Gandhi, (1996) 11 SCC 253, paragraphs 8, Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 107 9 submitted that decision to investigate or the decision on the Agency which should investigate does not attract principles of natural justice. The accused cannot have a say in the matter of Agency which should investigate the offences he is charged with. There is no provision in law under which while granting consent or extending the powers and jurisdiction of the Delhi special Police Establishment to the specified State and to any specified case reasons are required to be recorded on the face of the notification. In this connection, he also referred to the judgment of the Supreme Court in the case of Vipul Shital Prasad Agarwal Vs. State of Gujarat and Another, (2013) 1 Supreme Court Cases 197, paragraphs 4, 13, 18 and the judgment of the Supreme Court in the case of T.T. Antony Vs. State of Kerala and others, AIR 2001 Supreme Court 2637, paragraphs 9, 11, 15, 18, 27, 28, 35 and Union of India Vs. Prakash P. Hinduja and another, (2003) 6 SCC 195, paragraphs 10, 16, 17, 20, 21 and defended the decision of the State Government to grant consent for investigation of K.Hat P.S. Case No. 230/98 by the C.B.I. under notification dated 11.8.1998, Ext. 8 and the decision of the Government of India to entrust such investigation to the C.B.I. under notification dated 28.9.1998, Ext. 42.
104. Learned counsel for the C.B.I. further submitted that having registered RC 12(S)/98/SIC-IV/New Delhi on 12.10.1998 for administrative convenience it was the duty of the C.B.I. to further Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 108 investigate the offences committed in connection with incident in question i.e. murder of Ajit Sarkar and two others by examining the prosecution witnesses including others and to reach its own conclusion about the set of accused i.e. appellants and others involved in the crime and to file charge sheet dated 10.5.1999 and the supplementary charge sheet dated 19.8.1999. He further submitted that it was the Special Judicial Magistrate, C.B.I., Patna who passed order dated 15.9.1999 in consideration of the charge sheet dated 10.5.1999 and supplementary charge sheet dated 19.8.1999 submitted by the C.B.I. recommending these appellants and two others to face trial in connection with murder of Ajit Sarkar and while considering the said charge sheet C.B.I. Magistrate discharged the accused sent up for trial under charge sheet dated 20.9.1998 and only committed the case of the appellant charge-sheeted by the C.B.I. for trial. The failure of the Magistrate not to commit the case of the accused persons sent up for trial by the Purnea Police, the investigation of the offence made by the C.B.I. and the trial of the appellants cannot be questioned.
105. According to learned counsel for C.B.I. mere fact that during further investigation of the offence it emerged that persons other than the accused arrayed by Bihar Police were involved does not mean that reinvestigation was conducted by the CBI. It is respectfully submitted that the Investigation Agency has the right and sacrosanct Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 109 duty to investigate the matter independently and impartially and place all the relevant material for the consideration of the Court. It would be relevant to note that during course of further investigation by CBI, Kalyan Chandra Sarkar, Lal Bahadur Uraon stated before CBI that the Fard Bayan alleged to have been recorded by Bihar Police was merely signed by them without reading the contents thereof. Other than the alleged Fard Bayan recorded by Bihar Police, there existed no evidence against the set of persons stated to be the assailants in the said Fard Bayan. Rather it was the categoric and consistent assertion of the witnesses that the said persons were not involved and in fact certain other persons were the assailants. During the course of further investigation the version of the witnesses was found to be reliable as it found confirmation from the judicial confession of the unknown assailant who turned out to be Rajan Tiwari and the said confession was found to be truthful as it found corroboration in material particulars from various circumstances that are proved from cogent documentary evidence. Therefore, in light of these attending circumstances the CBI filed the first supplementary charge sheet in the case on 10.05.1999 against Rajan Tiwari and Anil Kumar Yadav. Other co accused persons namely Rajesh Ranjan @ Pappu Yadav, Harish Chaudhary and Amar Yadav were arrested subsequently and therefore further supplementary charge sheets were filed. Reliance is placed on the observations of the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 110 Hon'ble Supreme Court in TT Antony v. State of Kerala reported as (2001) 6 SCC 181 wherein illustration in Para 18 is pressed into service. It assumes significance that all the material collected by Bihar Police was duly placed in all fairness before the CBI court by the CBI and even the investigating officer of the Bihar Police was arrayed as prosecution witness as the CBI had conducted only further investigation in the matter and not reinvestigation in which case the material collected earlier may not have been produced before the court. It is respectfully submitted that the supplementary charge sheet was filed by the CBI before the Court of Learned Special Judicial Magistrate-CBI, Patna as only he is competent to receive charge sheets submitted by CBI to the exclusion of all other magistrates and he is notified with such powers by the State Government in consultation with the Hon'ble High Court. Reliance is placed upon the decision reported as (2008) 2 SCC 383 titled State of Andhra Pradesh v. A. .S Peter that is squarely applicable to the facts of the present case and buttresses the said proposition. Therefore it is evident that further proceedings in the said case could be carried out before the said Magistrate only and Chief Judicial Magistrate, Purnea stood divested from any powers in regard to the case upon transfer of investigation from the State Police to the CBI. In view of the above, it is humbly submitted that the Learned Chief Judicial Magistrate- Purnea was not competent to keep the matter Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 111 pending before him and should have on its own transferred the records to the Court of Learned Special Judicial Magistrate CBI, Patna.
106. The second limb of the submission of the appellants that even for conducting further investigation in terms of section 173(8) of Cr.P.C. formal permission of the Magistrate must necessarily be sought by the investigation agency in view of the recent judgment dated 13.12.2012 of the Hon'ble Supreme Court in Vinay Tyagi v. Irshad Ali Criminal Appeal no. 2040-2041 of 2012 is of no avail as the Learned Chief Judicial Magistrate vide order dated 23.09.1998 permitted the Bihar Police to carry on further investigation with respect to the appellants herein and others. The CBI has stepped into the shoes of the state Police and therefore was entitled to carry on further investigation in the offence. There is no quarrel with the proposition lamented in the aforesaid judgment of the Supreme Court and in the facts of the present case formal permission had been sought from the Learned Magistrate before carrying on further investigation. Reliance is placed upon 3 judge bench decision of Apex Court in State of Bihar and another v. J.A.C. Saldanha and others reported as (1980) 1 SCC 554 wherein it was held that even Superior Officer has the untrammeled power to undertake the exercise of further investigation. Reliance is placed on the judgment of the Hon'ble Supreme Court in Union of India v. Prakash P. Hinduja and another reported as (2003) Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 112 6 SCC 195 wherein it was held that even if there is an illegality in investigation the same does not vitiate the cognizance and trial subsequent thereto. Recently the Hon'ble Supreme Court in its judgment titled Vipul Shital Prasad Agarwal v. State of Gujarat and another reported as (2013) 1 SCC 197 has held in para22 that it is the administrative practice of the CBI to reproduce the FIR of the local police inform of RC and the same cannot be construed to mean that a fresh FIR has been registered by the CBI.
107. Learned counsel submitted that there was no evidence against accused Bipin Singh @ Bipin Chaudhary, Diwakar Chaudhary, Jawahar Yadav @ Nirmal Yadav, Abdul Sattar and Pappu Dev @ Sanjay Dev, a request was made by CBI for their discharge. The contention on behalf of the appellant before this Hon'ble Court that the learned Special Judicial Magistrate, CBI was not competent to discharge the said accused and discharge, if any, could have been made by the Additional Sessions Judge can have no force as all the grievances of the appellants against the factum of their being charge sheeted were agitated before the Higher Courts and the same were rejected. The order of the learned Special Judicial Magistrate dated 15.09.1999 discharging the previous accused was not assailed by the appellants as evidently no prejudice was felt by them. The factum of the said accused persons not being committed, therefore not charged and consequently not put to trial Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 113 cannot effect the trial of the appellants in any manner. Even assuming that there was some procedural irregularity or failure on part of the Learned Magistrate in discharging the accused, such alleged impropriety at the pre-trial stage would not vitiate the trial of the appellants as no prejudice has been demonstrated at their instance which resulted in failure of justice. It is a settled proposition that the object of criminal justice machinery is to punish the guilty if the evidence led at trial proves the culpability beyond reasonable doubt and the entire exercise cannot be rendered non-est on account of an alleged irregularity which admittedly has caused no prejudice to the accused much less, resulted in any failure of justice. Furthermore, if at any time evidence against the persons arrayed as accused by Bihar police emerged before the Learned Sessions Court recourse to the provision of section 319 Cr.P.C. could have been taken at any stage. Even otherwise in ultimate analysis the function of the Learned Trial Court and this Hon'ble Court exercising its appellate jurisdiction in terms of section 374 Cr.P.C. is required to assess the credibility of evidence qua the appellants herein and if the evidence inspires confidence the court may act upon it to tender a finding of guilt, as has been done in the instant case by the Learned Trial Court. The scope of the present appeal is confined to the conclusions arrived at by the Learned Trial Court based upon the evidence led before it against the accused persons who were charged i.e. the appellants- Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 114 herein. It has been consistently held by the Supreme Court that any defect, irregularity and absence of charge cannot ipso facto result in vitiating trial. Reliance is placed upon constitution bench decision in AIR 1956 SC 116- Willie (William) Slaney v. State of Madhya Pradesh. Significantly, the Hon'ble Supreme Court in decision reported as (2012) 2 SCC 188 titled Nupur Talwar v. CBI, Dehi has held that the Magistrate even in cases where final report is filed by the Investigating Agency, is competent under the code to refuse to take cognizance and is not bound by the opinion of the Investigating Officer.
108. Learned counsel for the C.B.I. next submitted that the challenge on behalf of the appellant Rajesh Ranjan @ Pappu Yadav to the validity of Section 30 of the Evidence Act whereunder judicial confession recorded by an accused is not only admissible against him but also against co-accused without giving opportunity to the co-accused to cross-examine the accused recording confession implicating him has to be upheld in view of the safeguards provided under Sub-Sections (2), (3), (4) of Section 164 Cr.P.C. He further submitted that vires of even more draconian provision contained in Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 as amended by TADA (Amendment) Act, 1993 providing for confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 115 mechanical device like cassettes, tapes or sound track shall be admissible in trial of such person or co-accused abettor or conspirator has already been upheld in the light of the statutory warning contained in Sub-Section (2) of Section 15 of TADA Act required to be given by the police officer to the person making the statement before recording his statement vide judgment of the Supreme Court in the case of Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569, paragraphs 192 to 197, 205, 210 to 212, 214 to 223, 255.
109. Learned counsel for the C.B.I. next submitted that in the instant case Sri G.S. Saini, P.W. 59 the then Metropolitan Magistrate granted sufficient time for reflection to Rajan Tiwary and on his insistence to record statement as he wanted to improve himself proceeded to record the statement of Rajan Tiwary after administering statutory warning in terms of Sub-Section (2) of Section 164 Cr.P.C. that the statement which he is proposing to record will be used against him in evidence, which is evident from endorsement made by Sri Saini over petition filed by I.O., P.W. 61 for recording the statement of Rajan Tiwary under Section 164 Cr.P.C. as also from the order sheet maintained by Sri Saini on that date and the certificate recorded by him, as is required under Sub-Section (4) of Section 164 beneath the statement.
110. Learned counsel for the C.B.I. further submitted that Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 116 submission made on behalf of the appellant Rajan Tiwary that he having not been allowed at least 24 hours time for reflection the confession recorded by him on 22.2.1999 is wholly involuntary and fit to be rejected in view of the judgment of the Supreme Court in the case of Kartar Singh(supra), paragraph 390 is misconceived as paragraph 390 is the minority opinion of K. Ramaswamy J. where his lordship observed with reference to the judgment of the Supreme Court in the case of Sarwan Singh(supra), paragraph 10 that sufficient time should be given to the accused for reflection, but no hard and fast rule could be laid as to the proper time for reflection.
111. Learned counsel for the C.B.I. further submitted that confession under Section 164 Cr.P.C. is to be recorded as per the manner provided in Section 281 Cr.P.C. Learned counsel distinguished the case of Sarwan Singh (supra) and submitted that confession recorded by Sarwan Singh was rejected as visible mark of injury was noticed by the Magistrate before recording the confession, yet he was not granted 24 hours time for reflection. In the case of Rajan Tiwary no visible mark having been seen on the person of Rajan Tiwary and Rajan Tiwary was insisting to record his confession so as to improve himself Metropolitan Magistrate, P.W. 59 allowed him 45 minutes time for reflection. Counsel for the C.B.I. relied upon the judgment of the Supreme Court in the case of Shankaria Vs. State of Rajasthan, 1978(4) SCC 453, paragraphs Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 117 9, 10, 16, 17, 18 to 23, 27 and submitted that on June 12, 1974 Shankaria under the orders of the Magistrate was lodged in judicial lock up. On June 13, 1974 application was filed to the Judicial Magistrate Ist Class requesting him to record the confessional statement of Shankaria. The Magistrate thereupon passed order that Shankaria be produced from judicial lock up on June 14, 1974 at 7 A.M. for the purpose. Shankaria was accordingly, produced before the Magistrate for recording his confession on June 14, 1974 at 7 A.M. The Magistrate put some questions to Shankaria by way of preliminary examination to ensure that he wanted to make statement voluntarily. The Magistrate gave Shankaria sometime for reflection and proceeded to record his confession from 8.45 A.M. onwards, yet the confession of Shankaria recorded by the Magistrate. He submitted that following the law laid down by the Supreme Court in the case of Shankaria (supra) this Court should also accept the confession recorded by Rajan Tiwary, Ext. 35.
112. Learned counsel for the C.B.I. also submitted that safeguard provided under Sub-Section (3) of Section 164 Cr.P.C. is not required to be read into Sub-Section (2) of Section 164 Cr.P.C. and submitted that as P.W. 59 had taken the precaution required under Sub- Section (2) of Section 164 Cr.P.C. before proceeding to record the confession, confession of Rajan Tiwary Ext. 35 is fit to be relied upon by this Court. Reliance in this connection was placed by the learned Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 118 counsel for the C.B.I. on the judgment of the Supreme Court in the case of Ravindra Kumar Pal (supra), paragraph 22.
113. Learned counsel for the C.B.I. with reference to the judgment of the Calcutta High Court in the case of Subodh Kumar Dhar Ray and others Vs. State on First Information Report of Rajendra Lal Das, 1966 Cri.L.J. 323, paragraphs 13, 16, 38 submitted that Calcutta High Court in the case of Subodh Kumar Dhar Ray (supra) distinguished the judgment of the Supreme Court in the case of Sarwan Singh (supra) as Sarwan Singh before recording his confessional statement was in police custody for more than 5 days but was just given half an hour time to reflect whether he would make a confession. Having distinguished the judgment in the case of Sarwan Singh (supra) Calcutta High Court accepted the confession made by the accused who was not granted 24 hours time to reflect as the accused remained in police custody for a short time before recording confession and there was no evidence to show that any threat, coercion or inducement was offered by the police to the accused persons before they made confession.
114. Learned counsel for the C.B.I. also relied on the judgment of the Supreme Court in the case of Sidhartha and others Vs. State of Bihar, (2005) 12 SCC 545, paragraphs 10, 14, 15, 16, 18, 19, 20 and submitted that the confession made by the accused under Section Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 119 164 Cr.P.C. is to be relied upon for corroborating the prosecution case.
115. Learned counsel for the C.B.I. reiterated the submissions made above by filing written submission and explaining the legal position with regard to judicial confession. It was foremost contended that reflection time of 24 hours was not provided to the accused and the confession was recorded merely after 45 minutes which is in teeth with the observation of Hon'ble Supreme Court in Sarwan Singh v. State of Punjab reported as AIR 1957 SC 637. The said observations in the case of Sarwan Singh (Supra) have been affirmed by a Single Judge (Hon'ble Mr. Justice Ramaswamy) in his dissenting view in the judgment of the Supreme Court in Kartar Singh v. State of Punjab reported as (1994) 3 SCC 569 in the context of recording confessions under TADA. Relevant would it be to note at the outset the said view of Justice Rama Swamy was not endorsed by the majority Judges. It is respectfully submitted that no inexorable proposition was laid down in the Sarwan Singh (Supra) judgment. In the very same judgment it was observed that it would naturally be difficult to lay down any hard and fast rule as to the time which should not be allowed to an accused person in any given case. In this context speaking generally, requirement of 24 hour reflection time to accused was laid down. Regard may also be had to the judgments of the Hon'ble Supreme Court in the case of Shankaria v. State of Rajasthan reported as (1978) 4 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 120 SCC 453 and Sidharth v. State of Bihar reported as (2005) 12 SCC 545 wherein while taking into consideration the judgment in Sarwan Singh (supra), the Apex Court acted upon the Judicial Confession which was recorded in less than 24 hours reflection time. Reliance is also placed on the observations of the Division Bench of the Calcutta High Court in the Judgment of Subodh Kumar Dhar Ray and Others v. State on first Information report of Rajendra Lal Das reported as 1966 Cri.L.J 323. The said cases unequivocally evince that the judicial confession may be held to be voluntary and safely acted upon by the court even if less than 24 hours reflection time is provided to the accused.
116. The learned Magistrate had the invaluable opportunity of observing the demeanour of the accused and he meticulously satisfied himself of the voluntariness of the accused in making the confession. He made the accused sit in his chamber, insulated from any potential duress or influence of the officials of the CBI. The Learned Magistrate put various questions to Rajan Tiwari and administered the statutory warnings contemplated under section 164 Cr.P.C. before undertaking the solemn act of recording the judicial confession. Furthermore, it would be pertinent to highlight at this stage that it is the consistent defence of Rajan Tiwari as evidenced from his retraction statement dated 30.03.1999, cross examination of Learned Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 121 Magistrate- Gurdeep Saini (PW 59) and the section 313 statement of Rajan Tiwari that the judicial confession has been fabricated by the Learned Magistrate in connivance with the CBI. It is not the case of the accused Rajan Tiwari that he did not have sufficient time to make a considered decision whether or not he must make an admission of guilt before the Magistrate and therefore the confession should be excluded from consideration as involuntary. In view of the categoric defence of the accused that the confession was fabricated by the Judicial Officer in connivance with CBI, the alleged paucity of time for reflection is of no consequence as evidently no prejudice is suffered by the accused by the alleged paucity of reflection time. Reliance is placed upon the judgment of the Hon'ble Supreme Court in its decision reported as (1999) 5 SCC 253 titled State V. Nalini .
117. It is respectfully submitted that due weight must be attached to the satisfaction of the Learned Magistrate and the integrity of the proceedings conducted by him. Section 114 (e) of The Indian Evidence Act 1872 enjoins a presumption that may be drawn by the court that all judicial and official acts are performed regularly. It is ex facie implausible that a Judicial Officer of a different State who has no axe to grind would oblige the CBI to foist a confession upon accused Rajan Tiwari. It is humbly submitted that a serious note must be taken of such flagrantly false assertions that are made at the instance of the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 122 accused persons lightly with a view to escape the consequences of such judicial confession in law. Reliance is placed upon the decision of the Hon'ble Supreme Court reported as (2002) 5 SCC 234.
118. The appellants have laid challenge to the confession on the premise that the appellant Rajan Tiwari was not remanded to judicial custody after recording of confession and the right of the accused to be remanded to judicial custody in case he refuses to make confession was not informed to him by the Learned Magistrate recording the confession. Reliance was placed upon the decision of the Apex Court in Rabindra Kumar Pal @ Dara Singh v. Republic of India reported as AIR 2011 SC 1436. It is respectfully submitted that in the present case the Learned Magistrate after duly satisfying himself as to the voluntariness of the confession and upon the insistence of the accused recorded the confession. Since the accused voluntarily proceeded to make the confession, the question of remanding him to judicial custody did not arise in view of the express and unambiguous mandate of section 164(3) of Cr.P.C. No requirement is envisaged under section 164(3) to inform the accused at the outset that if he chooses not to make the confession he would be sent to judicial custody. The accused must beforehand only be warned in terms of section 164(2) that he is not bound to make a confession and that, if he does so, it may be used as evidence against him. It is therefore respectfully submitted that Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 123 no fault can be attributed to the approach adopted by the Learned Magistrate while recording the confession. It is respectfully submitted that the judgment of the Apex Court in- Dara Singh (supra) in para 29 lays down guidelines on the aspect of recording judicial confessions and it would be pertinent to note that the Hon'ble Judges in their wisdom have consciously not laid down any requirement therein that the accused must be explained beforehand that he would be remanded to judicial custody if he chooses not to make the confession and neither any requirement of obtaining signatures of the accused on each page of the confessional statement has been adumbrated. A careful analysis of the said judgment reveals that for host of reasons cumulatively the Hon'ble High Court had refused to act upon the judicial confession made by accused persons and the Hon'ble Supreme Court affirmed the view taken by the High Court in ultimate analysis rather than endorsing each reason individually and tendering a finding thereon. It would also be noteworthy that in the said case the fundamental requirement of administering the warning that the confession may be used in evidence against the accused was not even complied by the court which goes at the root of the matter and coupled with other circumstances the High Court discarded the confession.
119. It was further contended on behalf of the appellants that the confession of accused Rajan Tiwari was not noted by the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 124 Learned Magistrate in question answer form but in a mere narrative which falls foul of the requirement of law. It is respectfully submitted that a conjoint reading of section 164 Cr.P.C. and section 281 of Cr.P.C. unequivocally evinces that questions are required to be reproduced in the record only if asked to the accused. The sublime philosophy being that answers tendered by the accused would be better appreciated in light of the question asked by the court. In the present case, record palpably reveals that series of questions were asked by the Learned Metropolitan Magistrate to Rajan Tiwari before recording the confession and in order to ascertain and satisfy himself if the confession was being made voluntarily. The said questions are duly recorded and the entire proceedings were penned down by the Learned Magistrate in his own handwriting. Merely because the accused Rajan Tiwari chose to clearly and unambiguously narrate vividly the entire factual conspectus, and no requirement was felt to ask any questions during the narration by the accused, no fault can be found with the approach adopted by the Learned Magistrate. Reliance is placed upon the judgments reported as (1887) ILR 14 Cal. 539-Fekoo Mahto v. the Empress and MANU/WB/0405/1977-Asoke Kumar Chakraborty v. State wherein it has been held that confessions recorded in narrated form do not become admissible and the accused must demonstrate prejudice.
120. It is respectfully submitted that even if the Hon'ble Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 125 court is of the view that for any reason the Learned Magistrate did not comply with any requirements envisaged under section 164 Cr.P.C. or section 281 Cr.P.C., the confession would not automatically be excluded from consideration in view of mandate of section 463 Cr.P.C. As highlighted earlier since the defence of the accused Rajan Tiwari is that of fabrication of confession by the judicial officer in connivance with the CBI, no prejudice/injury to the defence on the merits is caused by any instance of non-compliance alleged by the accused in the present case. It would be relevant to note that the Hon'ble Supreme Court in its judgment reported as (1999)5 SCC 253- Nalini's case (supra) has taken into account the mandate of section 463 Cr.P.C. to uphold the judicial confession recorded in the matter. Reliance is also placed upon the Nalini's case (Supra) to repel the contention advanced on behalf of appellant that signatures of Rajan Tiwari were not taken on 3 pages of the confession. In this regard it would be pertinent to reproduce the relevant paragraphs of the aforesaid judgment in Nalini's case (Supra) for the perusal of this Hon'ble Court which in no uncertain terms brings forth the legal position as aforementioned.
"402. It is unnecessary to refer to the provisions of Section 281 of the Code as it is not disputed that otherwise the confessions of the accused have been properly recorded. Contention in the case of Nalini (A-1) is that the mandatory provisions of Rule Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 126 15(3) have been violated as it is not signed by Nalini (A-1) whose signatures are required at the end of the confession. It was thus submitted that since the confession does not bear the signatures of Nalini (A-1) it could not be said to be a valid confession. It is important that the accused signs the confession at the end. In that way he comprehends that he has made confession. Confession of Nalini (A-1), it was submitted, has to be rejected in its entirety. Confession is said to be in 18 pages out of which only pp. 1 to 16 bear her signatures while pp. 17 and 18, which are crucial to the confession, do not bear her signatures...
.... The High Court said that this omission cannot be cured by examining the Magistrate under Section 463 of the Code. Section 463 of the Code is as under:
"463. Non-compliance with provisions of Section 164 or Section 281.-(1) If any court before which a confession or other statement of an accused person recorded, or purporting to be recorded under Section 164 or Section 281, is tendered, or has been received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in Section 91 of the Indian Evidence Act, Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 127 1872 (1 of 1872), take evidence in regard to such non- compliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement. (2) The provisions of this section apply to Courts of Appeal, reference and revision."...
404.....There could certainly be a human error but that would not mean that Section 463 of the Code becomes inapplicable. Mr Natarajan is correct in his submission that when the requirement of law is that confession should be signed by the person making it, it would mean his signatures at the end of the confession. What Section 463 requires is that evidence could be led of police officer recording the confession as to why provisions of Rule 15(3) could not be complied with while recording the confession. It has not been suggested or brought on record as to how not getting signatures of Nalini (A-1) on the last pages of the confession has injured her in her defence on the merits of the case. The confession has been corroborated in material particulars by means of an independent evidence even if the confessions of the co-accused are set apart. Confession of Nalini (A-1) was recorded on 7-8- 1991 and was sent to the Court of the Chief Judicial Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 128 Magistrate on the following day and on 9-8-1991 it was sent to the Designated Court. We find that the confession was duly made, which was recorded by V. Thiagarajan (PW 52). We are, therefore, inclined to admit the confession of Nalini (A-1) overruling the objection that Rule 15(3) of the TADA Rules has been violated." (emphasis supplied by learned counsel for the CBI)
121. It is respectfully submitted that even otherwise on first principle the contention of the appellants is misplaced as there is no requirement under section 164 Cr.P.C. to get signatures of the accused on each page of the statement. In the present case the Learned Magistrate took the signatures of the accused after recording his satisfaction as to the voluntariness of the confession that was arrived at after preliminary questioning of the accused and at the foot of the confession. In this light it would also be instructive to place reliance upon the Delhi High Court Rules which deal with recording confessional statement of accused persons. Perusal of the same also indicates that signature of accused on each page is not required.
5. Form prescribed for recording confessions- the annexed form for recording confessions taken under Section 164 has been prescribed and should invariably be used.
xxxxxxxxxxxxx Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 129 Record of a Confession made by an Accused Person (Section 164 of the Code of Criminal Procedure) ..............................Division In the Court of ..........................................
The State Versus The confession..................of...............taken by me.
............a *Magistrate of the ..
.............District, this ..........day of .......19.......... Memorandum of Enquiry (The Magistrate shall first, as required by Section 164(3), Code of Criminal Procedure, explain to the accused person that he is not bound to make a confession, and that if he does so, it may be used as evidence against him and shall then put and record answers to the following questions. If the answers are of such a character as to require him to do so, he should put such further questions as may be necessary to enable him to judge whether the accused person is acting voluntarily. In arriving at his conclusion on this point the Magistrate should consider inter alia the period during which the accused person has been in Police custody and make sure that the confession is not the result of any undue influence of ill treatment. Special care should be taken when women or children are produced by the Police for their confessions Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 130 being recorded).
Q.- Do you understand that you are not bound to make a confession?
A-
Q.- Do you understand that your statement is being recorded by a Magistrate, and that if you make a confession, it may be used as evidence against you?
A-
Q.- Understanding these two facts, are you making a statement before me voluntarily?
A-
Statement of accused (Make of signature of accused).
*Magistrate.
I have explained to ............ that he is not bound to make a confession, and that if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it, and admitted by him to be correct, and it contains a full and true account of the statement made by him.
*Magistrate.
Dated.........
Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 131 xxxxxxxxxx The contention advanced on behalf of the appellant that the judicial confession was produced by the CBI before the court and therefore the possibility of tampering cannot be ruled out, especially in absence of signatures of accused on each page, is liable to be rejected as the Learned Magistrate has recorded the confession in his own handwriting and has supported the document in witness-box. If the CBI would have tampered the confession, the Learned Magistrate would have highlighted the same in his deposition and not proved the document.
122. It is submitted on behalf of the appellants that no judicial record/order with regard to police custody of accused Rajan Tiwari being entrusted to the CBI is available on the record and therefore the custody of CBI was illegal and the judicial confession recorded during the said period of custody is liable to be excluded. It is respectfully submitted that appellant Rajan Tiwari himself annexed in Criminal Miscellaneous No. 10646/2003 before the Hon'ble Patna High Court, photocopy of the remand petition dated 13.02.1999 and photocopy of order passed thereon by the Learned Duty Metropolitan Magistrate-New Delhi. He also filed the aforesaid remand petition in Criminal Miscellaneous No. 27008/2000 before Patna High Court. Furthermore, Rajesh Ranjan @ Pappu Yadav himself annexed the true Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 132 copy of the remand petition as ANNEXURE P3 before Hon'ble Supreme Court of India in SLP (Crl.) No. 4018/1999. Therefore, it is evident that the said order was into existence and available on Judicial record. The appellants have raised this mischievous submission wittingly concealing from this Hon'ble Court the material fact that they themselves had annexed the said judicial orders as well as the application moved by CBI on 13.02.1999 in support of their petition and are attempting to play fraud upon the court. It is respectfully submitted that even if the original record of the said orders is not traceable, the same cannot be construed to mean that the order of remand of Rajan Tiwari in favour of CBI never existed. This Hon'ble Court is entitled to draw the necessary inference in terms of Section 114 Indian Evidence Act as to who would be the beneficiary in case of disappearance of the said judicial record and therefore who would have orchestrated the disappearance of the same. Furthermore, if the appellant Rajan Tiwari would have been in illegal custody of CBI a habeas corpus would have been filed or any complaint in this regard would have been contemporaneously lodged. In fact, even on 23-02- 1999 father of appellant Rajan Tiwari who was a lawyer himself moved a mischievous application which was withdrawn that his son Manish Tiwari was arrested and that he was not Rajan Tiwari as claimed by CBI. However, it was never contended that police custody was not Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 133 taken in furtherance of a valid remand order by the CBI. Significantly, the applicant raised objection to further/extension of remand to Police Custody and has expressly acknowledged in para 3 therein that the Police Remand was taken from the Duty Magistrate on holiday. Reliance is placed upon the decision of the Hon'ble Supreme Court in its judgment reported as (2011) 10 SCC 445-Pragyna Singh Thakur v. State of Maharashtra wherein it was held that when the objection of illegality of custody was not taken at the earliest opportunity, the same would not be believed.
123. Learned counsel for the C.B.I. next submitted that retraction made by Rajan Tiwary under first undated application forwarded to the C.M.M., Delhi by Deputy Superintendent, Central Jail No. 5, Tihar, New Delhi under letter no.181 dated 1.3.1999, subsequent retraction made on 30.3.1999 and the third retraction petition dated 21.4.1999 is required to be rejected as this court is required to look for the reasons for making of the confession as well as for its retraction and after weighing the two to determine whether the retraction affects the voluntary nature of the confession. In the instant case, Rajan Tiwary having not furnished reasons for retraction his confession earlier made is reliable; the retraction made by him is fit to be rejected. Privy Council once observed, in India it is a rule to record the confession and to find it retracted later. Reliance in this connection was placed on the judgment Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 134 of the Supreme Court in the case of Bharat Vs. State of U.P., (1971) 3 SCC 950, paragraph 7 and State of T.N. Vs. Kutti alias Lakshmi Narasimhan, (2001) 6 SCC 550, paragraph 13.
124. Learned counsel for the C.B.I. placing reliance on the judgment of the Supreme Court in the case of Devender Pal Singh Vs. State of NCT of Delhi and Another, (2002) 5 SCC 234, paragraph 37 submitted that Rajan Tiwary recorded his confessional statement after P.W. 59 was satisfied that Rajan Tiwary wanted to record his confessional statement on his own without there being any pressure from the C.B.I. or any other quarter and it was his voluntary desire to make confessional statement as he wanted to improve himself. There is statutory presumption under Section 114(e) of the Evidence Act that when an official act is proved to have been done it will be presumed to have been regularly done and that being the legal position the retraction made without giving any cogent reason is required to be rejected. In this connection, learned counsel for the C.B.I. also referred to the answers given by Rajan Tiwary to question nos. 6, 7, 8 posed to him during his examination under Section 313 Cr.P.C. and submitted that Rajan Tiwary having not himself referred to the retraction while giving answer to question nos. 7, 8, the same cannot be relied upon. In this connection, he also pointed out that Rajan Tiwary got recorded his confession on 22.2.1999 when he did not make any complaint about torture in the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 135 C.B.I. custody. He also did not make such complaint on 23.2.1999 when he was produced by the C.B.I. for being remanded to judicial custody and then again on 9.3.1999 when he came from judicial custody and again remanded in the same custody, as such, retraction on the ground of torture in police custody under first undated application which was forwarded to the C.M.M., Delhi under letter no.181 dated 1.3.1999 is fit to be rejected.
125. With reference to the judgment of the Supreme Court in the case of Pragyna Singh Thakur, (2011) 10 SCC 445, paragraphs 25, 27 learned counsel for the C.B.I. submitted that complain about the police torture is required to be made by the accused before the Magistrate at the first instance and not belatedly. He further submitted with reference to the first undated retraction application of Rajan Tiwary that from close perusal of said retraction application it would appear that Rajan Tiwary was apprehending his remand in Kabi Nagar(Gaziabad) P.S. Case No.626/98 registered for the offence under Section 302 I.P.C. and to ensure that he is not remanded in the said case and subjected to police torture and encounter he filed undated retraction application which does not affect the merit and genuineness of the confession made by him before P.W. 59 on 22.2.1999.
Belated retraction of judicial confession.
126. Submission made in paragraphs 78 to 80 was further Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 136 reiterated by filing written submission stating that the judicial confession made by accused accused Rajan Tiwari was retracted belatedly after a period of more than one month from Beur jail in Bihar. The confession was recorded before the Learned Magistrate on 22-02- 1999. Thereafter, accused Rajan Tiwari was produced before the Learned Chief Metropolitan Magistrate, New Delhi on 23-02-1999 when he was remanded to judicial custody. On 09-03-1999 the accused Rajan Tiwari was produced from judicial custody before the Court of Learned Chief Metropolitan Magistrate- R.K. Gauba with his advocate- Shri S.A. Hashmi, yet no retraction was made. It was only on 30-03- 1999 that accused Rajan Tiwari made retraction by means of a letter sent from jail. It is respectfully submitted that as highlighted in the preceding section that the version of the accused Rajan Tiwari that the judicial officer connived with CBI to fabricate the confession is ex facie unworthy of credit. The retraction which is belated in time and the inherently implausible version contained therein is not worth the piece of paper on which it is scribed, is not only liable to be ignored but is also a tell-tale mark of voluntariness of the confession which was later sought to be retracted, perhaps under the pressure of the co-accused Rajesh Ranjan @ Pappu Yadav; who demonstrably exercised lot of influence even inside jail in Bihar as is evident from various orders of the Hon'ble Supreme Court leading to his transfer to Tihar Jail- New Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 137 Delhi. The Hon'ble Supreme Court in its judgment reported as (1971) 3 SCC 950 and (2001) 6 SCC 550 has extensively laid down the law with regard to retraction. With regard to the reliance placed by the Learned Counsel for the Appellant Rajesh Ranjan @ Pappu Yadav upon the letter dated 01-03-1999 sent by accused Rajan Tiwari as his earliest statement of retraction, suffice would it be to state that bare perusal of the said letter unequivocally evinces that allegations comprised therein are confined to alleged torture by Delhi Police to extract disclosure in case F.I.R. No. 122/99 P.S R.K. Puram alleging torture by Delhi Police and not against officials of C.B.I to procure any confession under section 164 before Judicial Magistrate with regard to Ajit Sarkar case murder case. Therefore it assumes significance that appellant Rajan Tiwari in his retraction statement dated 30-03-1999 did not make any cross-reference to any previous retraction on 01-03-1999 as the same was obviously not in relation to Ajit Sarkar murder case. It would also be pertinent to note that the memorandum of appeal filed on behalf of Appellant Rajan Tiwari also does not refer to any retraction dated 01-03-1999 which also fortifies the contention advanced on behalf of C.B.I that the first retraction was made on 30-03-1999 with regard to Ajit Sarkar murder case and the retraction dated 01-03-1999 was with regard to disclosure statement to the Delhi Police in case F.IR No. 122/99 P.S. R.K. Puram.
Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 138 Availability of corroboration to the judicial confession in material aspects leading to assurance of its truthfulness.
127. Counsel for the C.B.I. also relied on the judgment of the Supreme Court in the case of Lokeman Shah Vs. State of West Bengal, (2001) 5 SCC 235, paragraph 13 to impress upon this Court the degree of corroboration which is required to prove the material particulars of confessional statement and submitted that the ocular evidence of P.Ws. 8, 9, 10 and the call details, Ext. 3 series together with photograph, material Ext. VII is quite sufficient to prove not only the association of Rajesh Ranjan @ Pappu Yadav with Rajan Tiwary but also hatching of conspiracy by Rajesh Ranjan @ Pappu Yadav and co- accused but also its execution by them.
128. Learned counsel submitted that in the preceding paragraphs of the written submissions it has been demonstrated that the judicial confession of appellant Rajan Tiwari was voluntary in nature. The other vital pre-requisite before acting upon a judicial confession is that of his truthfulness and the same can be adjudged in the present case by the ample corroboration available on record in form of eyewitness account of PW 8, PW 9 and PW 10(whose version is also corroborated by testimony of PW - 15 & PW- 16), scientific evidence of ballistic experts (PW-28 & P.W.-33) to the effect that AK-47 was used in the commission of offence, pointing out of various relevant spots by Rajan Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 139 Tiwari, call detail records, recovery of photograph (material Exhibit 7) of appellant Rajan Tiwari from the house of appellant Rajesh Ranjan @ Pappu Yadav, motive of appellant Rajesh Ranjan @ Pappu Yadav to do away with Ajit Sarkar as evinced from his proclamations at public gathering and recovery of the two motor cycles used in commission of offence. It is respectfully submitted that the Hon'ble Supreme Court has since time immemorial consistently held that corroboration is only a mere rule of prudence which has not crystallized into rule of law of universal acceptance, therefore, the court may act upon the judicial confession even without corroboration, if the same is found to be voluntary and truthful. However, when the said confession is retracted, which inevitably happens in every criminal case, the court may seek some corroboration only as a matter of caution before acting upon it against the maker. The Hon'ble Supreme Court has pertinently lodged a caveat that the corroboration need not be on every aspect but corroboration on material aspects would suffice. In the present case, as highlighted above there is ample corroboration available on record and therefore the court can safely act upon it. It has been contended on behalf of the appellants that the weapons used in the commission of offence were not recovered by the investigation agency and the same seriously impinges the credibility of the case projected by the prosecution. In this regard it would be profitable to press into service the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 140 observations of the Hon'ble Supreme Court in its decision reported as Umar Mohammad Vs. State of Rajasthan, (2007) 14 SCC 711 wherein it has been held that where direct evidence in form of testimony of eye witnesses is believable non-recovery of weapons used in commission of offence would pale into insignificance.
129. It has also been contended on behalf of the appellants that the motor cycles used in commission of offence though claimed to have been recovered by CBI have not been produced before the Learned Trial Court and therefore, the said circumstance cannot be proved in accordance with law. It is respectfully submitted that the seizure memos of the recovery of the said motor cycles has been duly proved by the Investigating Officer and relevant witnesses have proved the factum of its recovery in their depositions. Even the accused persons put the circumstance of recovery of motor cycles in their examination under section 313 Cr.P.C. and therefore, it is not the case that the accused persons were not aware of the factum of such recovery. With regard to the contention that it was not produced before the Learned Trial Court, it would be beneficial to recount the observations of the Hon'ble High Court of Punjab & Haryana in its judgment titled Balraj Singh v. State of Punjab reported as 1982 Cri.L.J. 1374. It was observed that-
"...Whether the non-production of a part or the whole of the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 141 case property in a criminal trial, would by itself, vitiate the conviction of the accused thereafter is the somewhat meaningful issue which has necessitated this reference to the Division Bench....
....When the aforesaid section 451 of the code itself positively visualizes and sanctifies the non-production of case property in the trial can it then reason-ably be said that a mere inadvertence or omission in producing the same and not exhibiting it in court would per se be fatal to the prosecution case. I do not think so. No principle could be cited before us which would show that the mere exhibition of the case property was so pivotal a thing that the failure to do so would take the very bottom out of a criminal prosecution.... But in the ultimate analysis the issue is one of the prejudice caused to the accused and any failure of justice resulting there from. In this context the question whether such an objection could be, but has not been raised at the earliest stage of trial is of considerable relevance. In a case of innocent or inadvertent non-production of the case property material prejudice is to be shown by the accused in order to claim the vitiation of the conviction. No abstract or absolute rule that "no case property, no conviction," can possibly be Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 142 raised to the pedestal of a rule of law, because this by itself is likely to occasion a failure of justice. As has been said earlier the substantial issues in a criminal trial like the proof and punishment of crime should not be converted into a plaything of technicalities. If the prosecution has innocently or inadvertently failed to exhibit the case property, yet the accused even though fully represented by counsel makes no objection or grievance thereof at the time of the trial, it would hardly lie in his mouth at the revisional stage to say that all the proceedings stand vitiated even though connived at or wholly condoned by his own conduct."
It is respectfully submitted that as per instructions dated 18.02.1999, the said motorcycles are still presently lying at P.S. K Hat, Purnea in running condition. The position of law with regard to use of a confession of a co-accused against another accused is materially different and is governed by section 30 of the Indian Evidence Act. It has been held by the Hon'ble Supreme Court that the court must not start with the confession of co-accused and rather the correct approach would be to marshal other evidence independent of the confession and if the court is not prepare to act upon it for any reason then the confession of the co-accused may be taken into account as a circumstance/material (not as evidence in the technical sense) in light Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 143 of which the other evidence can be appreciated and after taking such confession of co-accused into account, the court may feel impelled to act upon the other evidence and render a finding of guilt.
The above principles of law with regard to use of a confession against its maker and its limited use against the co-accused can be gathered from a conjoint reading of the following judgments of the Apex Court- (2001) 5 SCC 235 & (2003) 10 SCC 586.
Challenge to constitutional validity of section 30 Indian Evidence Act, 1872.
130. During the course of hearing, it has been contended by counsel on behalf of appellant-Rajesh Ranjan @ Pappu Yadav, that section 30 of the Indian Evidence Act is unconstitutional and is liable to be read down. The Learned Counsel placed reliance on the observations of the 69th report of the Law Commission of India on the Indian Evidence Act, 1872 at page 225 under the chairmanship of Hon'ble Mr. Justice P.B. Gajendra Gadkar wherein it was recommended that present section 30 of the Indian Evidence Act should be repealed.
At the outset it is respectfully submitted that challenge to the vires of a statue must be made by preferring appropriate proceeding i.e. writ petition under Article 226 of Constitution of India and not in a criminal appeal wherein this Hon'ble Court exercises power in terms of section 374 of Cr.P.C. It would also be relevant to note that no such Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 144 ground has been taken in the memorandum of appeal and leave of the court was not taken to amend the said memorandum of appeal for raising additional grounds.
With regard to the merits of the submission, it is respectfully submitted that the Hon'ble Supreme Court in Kartar Singh's Case (Supra) upheld the constitutional validity of Section 15 of TADA which makes confession of co-accused recorded before a police officer not lower in rank of Superintendent of Police, admissible against the accused. It would also be relevant to highlight that in Paragraphs 210, 211 and 215 of the said judgment the Hon'ble Supreme Court held the existing statutory provisions of Cr.P.C. and the Indian Evidence Act, including section 30 thereof, to be in consonance with spirit of the Constitution. It is humbly submitted that there is a strong presumption of constitutionality of a statue and the burden is cast upon the party who makes the challenge. It is a trite proposition of law that ordinarily the Courts would attach due weight to the collective wisdom of the legislature which is manifested in form of the statue. Reliance is placed upon the recent judgment of the Apex Court in State of M.P. v. Rakesh Kohli reported as (2012) 6 SCC 312.
It is submitted with deepest respect that the observations of the Law Commission of India are only recommendatory in nature and exclusively premised upon the same the constitutional validity of a Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 145 provision cannot be successfully assailed, especially when the Constitution Bench in Kartar Singh case (supra) has found the said provision to be in consonance with the spirit of the Constitution. The Legislature has till recent years introduced vast amendments in the framework of Criminal Law but has evidently chosen not to accept the said recommendation of the 69th Report of the Law Commission in its collective wisdom.
In view of the above it is clear that the contention challenging the vires of the section 30 of the Indian Evidence Act or alternatively reading it down is liable to be rejected.
131. Learned counsel for the C.B.I. next referred to the photograph, material Ext. VII and submitted that the photograph is also a link to corroborate the confession made by Rajan Tiwary as from the photograph it is quite evident that after executing conspiracy hatched by Rajesh Ranjan @ Pappu Yadav Rajan Tiwary came to Delhi and resided in the flat of Rajesh Ranjan @ Pappu Yadav and then moved along with Rajesh Ranjan @ Pappu Yadav, his wife and child to Vaishno Devi, Srinagar and other places, which is quite evident from the photograph as therein he has been seen with Rajesh Ranjan @ Pappu Yadav, his wife and child at a tourist hilly place. In this connection, learned counsel for the C.B.I. also referred to Section 313 Cr.P.C. examination of appellant Rajesh Ranjan @ Pappu Yadav and submitted that from the answers Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 146 rendered by appellant Rajesh Ranjan @ Pappu Yadav it would be quite evident that he is feigning ignorance of his association with Rajan Tiwary and the confession recorded by him, which would be evident from answers given by Rajesh Ranjan @ Pappu Yadav to question nos. 6, 8, 10, 11 and 19.
132. Learned counsel submitted that reliance placed by the counsel for the appellant Rajesh Ranjan @ Pappu Yadav over paragraph 1 of the judgment of the Supreme Court in the case of Machhandar(supra) is misconceived as in the said judgment of the Supreme Court the accused was not given opportunity to explain the contents of the confessional statement, which would be evident from paragraph 17 of the said judgment. In the instant case, appellant Rajesh Ranjan @ Pappu Yadav was given opportunity to explain the materials appearing against him i.e. confessional statement (Ext. 35), call details Ext. 3 series and photograph material Ext. VII, which is evident from question nos. 6, 8, 9, 10, 11 and 19 put to him. Learned counsel stated that when Rajesh Ranjan @ Pappu Yadav was put question no. 19 he was shown photograph, material Ext. VII but from the answer given by Rajesh Ranjan @ Pappu Yadav to the said question, it would appear that he has not only evaded the question but has given false answer to question no.19. He further submitted that question nos. 16, 17 have been put to appellant Rajesh Ranjan @ Pappu Yadav so as to give him Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 147 opportunity to explain the call details, Ext. 3 series. Reliance in this connection is placed over the judgment of the Supreme Court in the case of Joseph S/O Koobeli Poulo Vs. State of Kerala, (2000) 5 SCC 197, paragraphs 10, 12, 14.
133. Learned counsel for the C.B.I. further reinforced his submission by submitting that objection with regard to the defective recording of the statement under Section 313 Cr.P.C. is required to be taken at the trial stage itself and not in appeal. Appellant Rajesh Ranjan @ Pappu Yadav having not raised the question of defective recording of statement under Section 313 Cr.P.C. at the trial stage he is required to indicate the prejudice caused to him while recording his statement under Section 313 Cr.P.C. To buttress the aforesaid submission learned counsel referred to the judgment of the Supreme Court in the case of Satyavir Singh Rathi, ACP and others Vs. State through Central Bureau of Investigation, (2011) 6 SCC 1, paragraphs 76, 77, 78 and submitted that counsel for the appellant having not pointed out any prejudice caused to the appellant Rajesh Ranjan @ Pappu Yadav while recording his 313 Cr.P.C. statement, the submission that error was committed while recording 313 Cr.P.C. statement is required to be ignored.
Effect of not showing material objects/Exhibits to the accused while recording statement under section 313 Cr.P.C. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 148
134. Learned counsel for C.B.I. reiterated his submission made in above paragraphs and contended on behalf of appellant- Rajesh Ranjan @ Pappu Yadav that the photograph (Material Exhibit
7) alleged to have been recovered by the CBI from his premises on 17.02.99 was not shown to him during questioning under Section 313 Cr.P.C, which is required under law. To buttress the said submission reliance was placed upon the judgment of the Hon'ble Supreme Court in Machander v. The State of Hyderabad reported as AIR 1955 SC
792. It is respectfully further submitted that there is no requirement in law that the object/case property must mandatorily be shown to the accused during questioning under Section 313 Cr.P.C. Bare perusal of the said provision unequivocally evinces that the Court is required to question the accused generally on the case with a view to enable the accused to explain circumstances appearing in evidence against him. As palpably evident there is no hard and fast rule envisaged under the provision that the attention of the accused must specifically be drawn by producing each case property before him during questioning. It would also be relevant to note that copy of all the material relied by the prosecution along with the final report in terms of Section 173 Cr.P.C. is served in advance to the accused person under Section 207 Cr.P.C before committal before Court of Sessions. Furthermore, each document/object is specifically produced before the Court in presence Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 149 of the accused at the time of deposition of the relevant witness for the purpose of being marked in evidence, as in the present case when the said photograph was exhibited in evidence by PW-61, Dy. S.P. N. S. Kharayat on 19.08.2006 in presence of accused Rajesh Ranjan @ Pappu Yadav who was connected through video conferencing from Tihar Jail in Delhi. Therefore, it is clear that the appellant Rajesh Ranjan @ Pappu Yadav was well aware of the subject matter of questioning i.e. the photograph of himself and his family with Rajan Tiwari and therefore, there is no prejudice which has occasioned. In this regard it would also be significant that the accused Rajesh Ranjan @ Pappu Yadav was represented by a battery of competent lawyers and if the accused would not have been sure of the photograph referred by the Court while questioning him, objection to this effect would have been moved before the Learned Trial Court sooner or later. The said allegation has been coined for the first time before the appellate Court and in view of the authoritative pronouncement of the Hon'ble Supreme Court in Satyavir Singh Rathi V. State through CBI reported in (2011) 6 SCC 1 as the said argument deserves to be rejected as such. Interestingly, the Hon'ble Supreme Court in the case of Machander (supra) has nowhere laid down any requirement for producing material objects during questioning in terms of Section 313 Cr.P.C, rather it was a case of omission on part of the Court to Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 150 question the accused with regard to the judicial confession alleged to have been made by him. The Hon'ble Supreme Court affirmed the finding of the Hon'ble High Court that the said confession was required to be jettisoned from consideration as the accused was not questioned with regard to the same and the Hon'ble High Court was of the opinion that prejudice had occasioned to the accused. As highlighted earlier the present case is not a case of omission to question with regard to a circumstance appearing in evidence against the accused and therefore, the reliance on judgment in Machander's case (supra) is misconceived.
Absence of certificate under section 65 - B Indian Evidence Act, 1872 not fatal to prosecution.
135. Counsel for the C.B.I. next submitted that from the call details, Ext. 3 series it would appear that on 14.6.1998 at 9.58 A.M. Harish Chaudhary made Rajan Tiwary speak to Rajesh Ranjan @ Pappu Yadav from telephone no. 23929 installed at the Purnea residence of Rajesh Ranjan @ Pappu Yadav to his Delhi telephone no.3730767 subscribed in his name. It would further appear from the call details that two calls were made from Katihar P.C.O. No.34679 of 42, 32 seconds duration at 18 hours 16 minutes 48 seconds and 18 hours 18 minutes 16 seconds at Delhi residence of appellant Rajesh Ranjan @ Pappu Yadav on telephone no.3730767 and 3736358 subscribed in the name of his Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 151 wife. From same telephone booth another call of 1 minute 26 second duration was made at 20 hours 8 minute 41 second on telephone no.0551322035 which is the telephone installed at Gorakhpur residence of appellant Rajan Tiwary. The call details have been obtained under the signature of Ramashray Rajak, Sub-Divisional Engineer, Telecom, P.W. 6 and is admissible in evidence in view of his deposition and the deposition of Om Prakash Ramnani, P.W. 52 the husband of telephone booth owner as no suggestion was put to these two witnesses touching the authenticity of the call records or the possible tampering with the entries. In this connection, he also referred to Sub-Section (2) of Section 63 and Sub-Clause-(4) of Section 65B of the Evidence Act and submitted with reference to the judgment of the Supreme Court in the case of State (N.C.T. of Delhi) Vs. Navjot Sandhu, AIR 2005 Supreme Court 3820, paragraph 15 that print outs taken from the computers/servers by making process and certified by a responsible officer of the service providing company can be led into evidence. Call details will show that the appellant Rajan Tiwary was in touch with Rajesh Ranjan @ Pappu Yadav before and after the occurrence which is a very significant piece of evidence to corroborate the judicial confession of Rajan Tiwary. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), (2010) 6 SCC 1, paragraph Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 152 225, 226 and it is submitted that call details so that Rajan Tiwary was in touch with appellant Rajesh Ranjan @ Pappu Yadav soon after the occurrence.
136. Learned counsel further reiterated the aforesaid submission in his written submissions by stating that prosecution has not produced certificate under Section 65-B Indian Evidence Act, 1872 in support of the call records which are electronically generated documents and therefore, they must be stamped as inadmissible and excluded from consideration. It was further submitted that officials (PW 6, PW 11 & PW 12) who proved the said documents before Court were not technical experts and this infirmity warranted exclusion of such evidence. The answer to the above contentions can be safely found in the judgment of the Hon'ble Supreme Court in State (NCT of Delhi) v. Navjot Sandhu reported in AIR 2005 SC 3820 in Paragraph 15 @ page 3880 wherein the Apex Court has held that mere non-production of certificate in terms of Section 65-B does not preclude other means of proving the electronic records such as examination of an official from the authority. Thus the Hon'ble Court went on to observe that there was no obligation upon the prosecution to call upon a technical expert for examination in the first instance and such an officer could be summoned if in facts and circumstances of the case it was felt necessary by the accused. It would be relevant to note that in the present case the appellants have not Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 153 disputed the factum of exchange of calls between the said telephone numbers and have not challenged the genuineness of the records. Rather, it is the case of Rajesh Ranjan @ Pappu Yadav that he spoke to some persons other than Rajan Tiwari. Therefore, in light of the said premises the argument of non-examination of technical expert loses its sting and is liable to be rejected.
Credibility of eye witness account.
137. Learned counsel for the C.B.I. then relied on the judgment of the Supreme Court in the case of Akbar and another Vs. State, 2009 Cr.L.J. 4199, paragraph 49 and submitted the manner in which ocular evidence has to be considered and appreciated by the court in a murder case. While placing reliance on the evidence of Ranu Kumar Singh, P.W. 19 paragraph 2 learned counsel for the C.B.I. with reference to the judgment of the Supreme Court in the case of State of U.P. Vs. Nahar Singh, 1998(3) SCC 561, paragraph 14 submitted that the witness himself came to the place of occurrence after the crowd had already collected, as such, it is possible that P.W. 19 could have seen K.C. Sarkar after 45 minutes of his arrival. From the evidence of P.W. 19 it does not appear that P.Ws. 8, 9 and 10 have not come to the place of occurrence soon after the occurrence.
138. Learned counsel for the C.B.I. further submitted that D.W. 21 Madhumita Devi being the wife of Raj Kumar Yadav who Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 154 accompanied Rajan Tiwary on the first occasion when he had gone to assassinate Ajit Sarkar as per confessional statement of Rajan Tiwary being wholly interested witness should not be relied upon by this Court.
139. Learned counsel for the C.B.I. also submitted that for the failure of P.Ws. 8, 9 and 10 to approach the local police within reasonable time of the occurrence adverse inference is required to be drawn against the appellants as to why the eye witness did not approach the police for supporting the case or recording their version. Reliance in this connection has been placed on the judgment of the Supreme Court in the case of Gosu Jayarami Reddy and another Vs. State of Andhra Pradesh, (2011) 11 SCC 766, paragraph 37.
140. The law with regard to appreciation of ocular evidence of eye witnesses has been eruditely concatenated by Division Bench of Hon'ble High Court of Delhi in the matter titled Akbar v. State reported in 2009 CriLJ 4199.
I While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 155 tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. IV Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 156 V Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. VII Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. X In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 157 one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
The said principles have been derived from the judgment of Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 158 the Hon'ble Supreme Court in Leela Ram (Dead) through Duli Chand v. State of Haryana & Anr. reported as (1999) 9 SCC 525, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat reported as (1983) 3 SCC 217 and Tahsildar Singh and Anr. V. The State of Uttar Pradesh reported as AIR 1959 SC 1012.
141. A peculiar feature of the instant case which is palpably evident writ lage on the face of the record and even evidenced from the orders of the Hon'ble Supreme Court is that Rajesh Ranjan @ Pappu Yadav exercised tremendous influence in the region, in as much as even the jail authorities and staff in the Learned Trial Court were successfully influenced by the satanic web of his power. Twenty two (22) witnesses in the case turned hostile and complaints were frequently made before the court about the threats received by them. As highlighted earlier, Kalyan Chandra Sarkar and other witnesses were attacked in prison at the time of Test Identification Parade and a separate case in that regard was also registered. The present case illustratively depicts the deepest abyss of anarchy and collapse in governance and it is in this light that the evidence of the instant case is to be appreciated.
142. The Hon'ble Supreme Court has since time immemorial consistently held that realistic standards must be adopted while evaluating evidence led by the prosecution. Exaggerated devotion Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 159 to the rule of benefit of doubt must not nature fanciful doubts or lingering suspicion and thereby destroy the social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punishing innocent. Letting guilty escape is not doing justice according to law. The Apex Court has cautioned that doubts must be reasonable and not imaginary, trivial or mainly possible doubt but a fair doubt based upon reason and common sense to result in acquittal. The prosecution is not expected to answer every fanciful hypothesis put forward by the accused (Gangadhar Behera & Ors. V. State of Orissa reported as (2002) 8 SCC 381). A criminal trial is not like a fairy tale wherein one is free to give fight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the accused, the courts should not at the same time reject evidence which is ex-facie trustworthy on grounds which are fanciful or in the nature of Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 160 conjectures. It has also been held that defective investigation cannot be made as basis for acquitting the accused if despite such defects and failures of the investigation, a case is made out against the accused (State of U.P. v. Hari Mohan & Ors. Reported as (2000) 8 SCC 598. Even in criminal cases prosecution need not prove its case with absolute certainty and such utopian notion has been expressly rejected (State of Maharashtra v. Mohd. Yakub & Ors. reported as (1980) 3 SCC 57). A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the judge has to perform (State of U.P. v. Anil Singh reported as AIR 1988 SC 1998). While appreciating cases of circumstantial evidence the Hon'ble Supreme Court has pertinently observed that individual circumstances considered in isolation and divorced from the context of the overall picture emerging from a consideration of the diverse circumstances and their conjoint effect may be themselves appear innocuous. It is only when the various circumstances are considered conjointly that it becomes possible to understand and appreciate their true effect (Shaikh Sattar v. State of Maharashtra reported as (2010) 8 SCC 430). It would be instructive to refer to the profound observations of Hon'ble Mr. Justice Krishna Iyer in Inder Singh & Anr. Vs. the State (Delhi Administration) Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 161 reported as (1978) 4 SCC 161. It was observed-
".....credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, It is argued that it is artificial; if a case has some flaws, inevitable because human being are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many, guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot away with it because truth suffers some infirmity when projected through human process. Judicial quest for perfect proof accounts for police presentation of foolproof concoction. Why fake up? Because the court asks for manufacture to make truth look true? No, we must be realistic."
143. With regard to the criticism leveled by Learned Counsel appearing on behalf of the appellants that the witnesses were partisan as they belonged to different political factions i.e. CPI(M) and that their testimony suffered from inherent infirmity, it is respectfully submitted that the Hon'ble Supreme Court has consistently held in a Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 162 catena of judgment that merely because eye witnesses belonged to rival political party does not stamp their evidence ipso facto as untrustworthy. In the present case, the sordid incident was witnessed by Kalyan Chandra Sarkar, (PW-8) who was brother of deceased Ajit Sarkar and admittedly he is not a member of CPI(M). There is no suggestion to the witness that he had political ambitions against Rajesh Ranjan @ Pappu Yadav and therefore he deposed falsely. The Hon'ble Supreme Court has observed that near relations of the deceased would not falsely implicate innocent persons at the cost of letting the real culprits escape punishment. Reliance is placed upon the decisions of the Apex Court in Dalip Singh & Ors. v. The State of Punjab reported as AIR 1953 SC 364; Bhupendra Singh v. State of Punjab reported as AIR 1968 SC 1438. Evidence reveals that Kalyan Chandra Sarkar (PW8) was retired from service and leading simple life of an agriculturist who had no interest whatsoever in the political activities in the region and no such suggestion has also been given to the said witness. Reliance is placed upon the decisions of the Hon'ble Supreme Court in Gosu Jayarami Reddy and Anr. v. State of Andhra Pradesh reported as (2011) 11 SCC 766; Gunnana Pentayya @ Pentadu & Ors. V. State of Andhra Pradesh reported as (2009) 16 SCC 59; Kilakkatha Parambath Sasi & Ors. v. State of Kerala reported as (2011) 4 SCC 552. The said witness has clearly explained Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 163 his presence at the spot that he had come to visit his younger brother- Ajit Sarkar MLA at Purnea from Ranipatra where he resided. It also assumes significance that the said witness in his statement before the CBI does not disclose the name of any assailant and merely describes them. If it is respectfully submitted that if Kalyan Chandra Sarkar (PW8) desired to falsely implicate Rajesh Ranjan @ Pappu Yadav and his accomplices, he would have named them in his statement before the Investigation Agency itself. The version of this witness stands corroborated by the testimony of Madhusudan Rishi (PW9) and Lal Bahadur Uraon (PW 10) who have also cogently explained their presence at the house of the deceased and merely because they were associated with CPI (M) cannot corrode the value of their evidence which is otherwise consistent with the deposition of Kalyan Chandra Sarkar (PW8) and other independent circumstances- testimony of PW 15 & PW 16, scientific evidence of ballistic experts (PW 28 & PW 33) who opined that AK 47 was used in commission of offence, judicial confession of accused Rajan Tiwari and recovery of two motor cycles used in the commission of offence.
144. It was also strenuously contended on behalf of the appellants that the eye witnesses turned volte face from their previous version before the Bihar Police and after around five months projected and entirely new version which itself destroys the credibility of their Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 164 evidence. It was further submitted that in the interregnum no tangible efforts were made by the said witnesses to lodge a protest before Senior Police Officials or the court against the alleged misdirection of investigation by Bihar Police. It is respectfully submitted that the witnesses when examined before the CBI stated that their signatures were obtained by Bihar Police on 15.06.1998 and they did not read the contents of the said document. It would also be relevant to note that the copy of the FIR registered by PS K. Hat was not supplied to the witnesses as required under section 154 of the Cr.P.C. and Rule 148 of the Bihar Police Manual which requires endorsement of the informant to be taken that he has received the copy of the said FIR. It also assumes significance that the copy of the FIR was transmitted to the court of Ilaqa Magistrate in terms of the requirement of section 157 Cr.P.C. only on 16.06.1998 although the local police claims to have registered the FIR at 10 P.M. on 14.06.1998. A careful perusal of the alleged fardbayan recorded by Bihar Police would reveal that on the overleaf wherein the signature of Kalyan Chandra Sarkar (PW8) and Lal Bahadur Uraoun (PW 10) are obtained by the local police, only the names of the deceased is figuring and names of the assailants are on the other side of the page. Therefore, the version of PW 8 & PW 10 is not inherently incredible and in fact during the course of investigation their version was found to be true upon the judicial confession of accused Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 165 Rajan Tiwari and evidence which was found subsequent thereto. It would also be relevant to note that none of the witnesses were aware of the name of Rajan Tiwari at the time of incident and during investigation and all the said witnesses tendered description of Rajan Tiwari in their respective statements. The particulars of Rajan Tiwari could be deciphered by the CBI only upon his arrest and consequent disclosure before Delhi Police in case FIR No. 122/99 P.S. R.K. Puram wherein he confessed his involvement in the Ajit Sarkar murder case. It is also respectfully submitted that immediately after the incident, on 16.06.1998 the State Government was pleased to appoint Commission of Enquiry in terms of section 3 of Commission of Enquiry Act, 1952. There was a public outcry upon murder of Brij Bihari and Ajit Sarkar, Members of Legislative Assembly in succession in State of Bihar. At the request made on 01.07.1998 by Smt. Madhavi Bose (Sarkar) wife of deceased Ajit Sarkar, the investigation was transferred to CBI. It would be pertinent to note that the said fact is well within the knowledge of the appellants as reflected in the Supplementary Affidavit filed by Harish Kumar Chaudhary in Cr.W.J.C. No. 8/2008 before the High Court of Judicature at Patna. In furtherance thereof, it would be relevant to note that on 11.08.1998 the State Government of Bihar made recommendation in terms of section 6 of Delhi Special Police Establishment Act, 1946 for transfer of investigation to CBI. Therefore, Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 166 since steps had already been embarked upon by the wife of the deceased and the State Government had also constituted a commission of enquiry, it is not unnatural for the witnesses to have not individually preferred a protest before the court or Senior Officials of Bihar Police. In this regard, it would be relevant to note that during cross examination of the relevant witnesses, no question was put on behalf of the accused persons that why no complaint was lodged by the said witnesses before court or Senior Police officials. It was merely asked if any such complaint was lodged. It is respectfully submitted that it was incumbent upon the counsel of the accused to have expressly elicited from the witnesses why no such complain was made and in absence of such questioning the credibility of such witnesses cannot be impeached on such count. Reliance is placed upon the judgment of the Hon'ble Supreme Court in State of Uttar Pradesh v. Nahar Singh reported as (1998) 3 SCC 561; Sunil Kumar & Anr. v. State of Rajasthan (2005) 9 SCC 283; Rajinder Pershad (Dead) by L.R.S. v. Darshana Devi (Smt.) reported as (2001) 7 SCC 69; State of U.P. v. Anil Singh reported as AIR 1988 SC 1998. With regard to the evidence of Investigating Officer of Bihar Police A.K. Jha (PW 56) it is respectfully submitted that the said witness had obvious motivations to support his investigation and to save his own skin. As has already been highlighted earlier, for numerous reasons, the assertion of the eye witnesses that Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 167 they did not read the Fard Bayan recorded by A.K. Jha (PW 56) and merely signed the said document appears to have a ring of truth when pitted against the evidence of the said Investigating Officer who carried on the Investigation in the most slip shot/contaminated manner, to say the least, and the State Government was impelled to transfer investigation to CBI being itself dissatisfied with it. The said witness was produced by the prosecution as he was the Investigating Officer of the Bihar Police who had started the Investigating into the offence and the CBI had taken on further Investigation thereafter, so he was required to be produced in all fairness before the Hon'ble Court to unravel the initial phase of investigation, howsoever contaminated it be, as this case was not a case of reinvestigation or fresh investigation in which case the said evidence could have been affected from record as nullity. Furthermore, on merits the testimony of Kalyan Chandra Sarkar (PW 8) has been challenged on the ground that PW 19 Ranu Kumar Singh- a resident of the locality who was the witness to inquest according to Bihar Police, in the very first question in cross examination deposed that he saw that after 45 minutes of his arrival at the spot he saw Kalyan Chandra Sarkar come and scream who had killed his brother. It is therefore contended that Kayan Chandra Sarkar (PW 8) could not be an eye witness to the incident but arrived at the spot much later. It is respectfully submitted that perusal of the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 168 testimony of this witness indicates that when he arrived at the spot a large crowd had already gathered. It is therefore highly possible that in the said crowd he did not notice Kalyan Chandra Sarkar earlier and his attention towards him was drawn much later. It may be noted that the witness has not deposed that he saw Kalyan Chandra Sarkar alight from the cycle etc. which would demonstrate with certainty that Kalyan Chandra Sarkar arrived at the spot much later. The statement of this witness in response to the very first question in cross examination as such does not possess the potency to rule out the presence of Kalyan Chandra Sarkar at the time of incident. Even otherwise, reliance is placed upon the judgment of the Hon'ble Supreme Court in Sohan Lal @ Sohan Singh v. State of Punjab reported as (2003) 11 SCC 534 wherein it was held in para 23 that where a formal witness in cross examination deposes a material fact in favour of accused which he curiously omits to state in his statement under section 161 Cr.P.C. then the court may draw the inference that he had been won over by the accused and had deposed designedly to give benefit to the accused. In the present case, PW 19 Ranu Kumar Singh was a mere formal witness to inquest, however in response to the very first question in cross examination he introduces a material fact for the first time that Kalyan Chandra Sarkar arrived after 45 minutes of his reaching the spot. The decision in the said case squarely applies to the facts of the present case Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 169 and in any event the testimony of PW 19 cannot erode the credibility of the eye witnesses examined at the trial.
145. The Learned Counsel for appellant also said challenge to the version of the eye witnesses by submitting that they depose that injured Bodyguard Ramesh Uraon (PW 25) was taken in an ambulance to Sadar Hospital by Kalyan Chandra Sarkar (PW8), however, Ramesh Uraon (PW 25) in his deposition states that he was taken to hospital by one Subhash Singh in a tempo and he did not see Kalyan Chandra Sarkar at the spot. It is respectfully submitted that Kalyan Chandra Sarkar in his cross examination has categorically stated that the ambulance looked like a matador and there is no contradiction as such on this aspect between the testimony of witnesses inter se. Ambulance is merely a nomenclature for a vehicle which carries patients and it is not unusual that in small towns or at times even in cities the same is actually a tempo/matador being used for the said purpose. It would be pertinent to note that Ramesh Uraon was injured in the ghastly ordeal that ensued that day and he survived as he managed to lie down in a bent position in the footrest of the car. It was only after some time that he was taken out from the car by the villagers and he was made to lie on the ground horizontally before being taken to the hospital. It was emerged in evidence that a huge crowd had gathered at the spot and it is quite natural that he may not have noticed Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 170 Kalyan Chandra Sarkar in the crowd as he himself was suffering from excruciating pain. It would also be pertinent to note that it is not the claim of Kalyan Chandra Sarkar that he spoke to Ramesh Uraon at the spot or himself carried him to the ambulance in his hand. Kalyan Chandra Sarkar has deposed that villagers took out Ramesh Uraon from the car. Therefore there is no contradiction which casts doubt upon the presence of Kalyan Chandra Sarkar. It is respectfully submitted that Kalyan Chandra Sarkar was the unfortunate witness to the heart rending murder of his brother in broad daylight. It is rather natural that he was taken over by the events and was in a state of shock at the relevant time. Crowd had gathered and it is safe to assume that necessary steps were being taken by the villagers. Ramesh Uraon was a mere guard of his brother Ajit Sarkar and it is not unnatural for him to have not spoken to him at the scene of occurrence. It would be pertinent to note that there is no cross examination of Kalyan Chandra Sarkar on the aspect as to why he did not speak to Ramesh Uraon at the scene of occurrence. As submitted earlier, in absence of cross examination on a particular aspect specifically credibility of a witness cannot be diminished on that count as it would tantamount to taking a witness by surprise as if the question would have been put to him while he was in witness box, he would have had the opportunity to offer an explanation for the same which would be adjudged by the court on its Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 171 own value. It is further submitted that it has emerged in evidence that Ramesh Uraon (PW 25) was carried in an ambulance and he has deposed that he was accompanied by Subhash Singh. It has also emerged in deposition of Kalyan Chandra Sarkar (PW8) that there were other persons when he went to Sadar Hospital. Therefore, there is no irreconcilable contradiction to discredit the version of Kalyan Chandra Sarkar (PW8). It is quite possible that Kalyan Chandra Sarkar was sitting in front seat of ambulance and Ramesh Uraon who was made to lie in the rear portion of the ambulance could have observed only Subhash Singh who was accompanying him in the said portion.
146. The appellants have also placed heavy reliance upon the testimony of Madhumita Yadav (DW 21) daughter of Kalyan Chandra Sarkar (PW8) who was wife of Raj Kumar Yadav @ Raju Yadav and deposed that on the day of incident she was present at the house of her father at Ranipatra although her husband was supposed to be operated on that day for a disease not known to her and had to be taken to Patna by train at 7 pm from Katihar. She deposed that at 5 pm on that day she was still present at the house at Ranipatra when someone whom she does not remember informed that Ajit Sarkar had been killed and it was thereafter that her father left for Purnea. It was deposed by her that she had visited the house of her father to collect money for treatment of her husband; however Kalyan Chandra Sarkar Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 172 (PW8) had denied the said fact in his cross examination and had deposed that his daughter had not visited him on the day of incident and in fact she had collected money for the surgery of her husband from Ajit Sarkar some days prior to the incident. Kalyan Chandra Sarkar deposed that he did not himself give her money as her husband was a drunkard and he himself was also not financially very sound. It is respectfully submitted that reasons for such testimony of his witness are not hard to seek. The said witness is a pliable witness for the defence but not a reliable witness for the court. It was revealed during cross examination by the Learned Special Public Prosecutor that the said witness was the wife of Raju Yadav who was the associate of Rajesh Ranjan @ Pappu Yadav and that she had performed a love marriage with him and therefore had obvious motivations to lie, especially after the death of her father Kalyan Chandra Sarkar on 06.02.2005. It would also be relevant to note that this witness has deposed after nearly a decade of the incident and that at no time she made any statement to any authority/court about her version of events and that her father was lying.
147. It has been contended on behalf of the appellants that there was excessive delay in holding TIP and therefore identification of the Appellant Rajan Tiwari by witnesses in Beur Jail was of no consequence. It is respectfully submitted that the Hon'ble Supreme Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 173 Court has observed that no abstract time limit can be laid down for holding TIP and mere delay in conducting the same cannot lead to rejection of evidence of the witnesses. Reliance is placed upon the judgment of the Apex Court reported as (1994) 1 SCC 413 titled Brij Mohan & Ors. v. State of Rajasthan, AIR 2012 SC (Criminal) 1034 titled Munna Kumar Upadhyay @ Munna v. State of Andhra Pradesh and 2001 CriLJ 1268 titled Daya Singh v. State of Haryana. It cannot be lost sight that the witnesses had ample opportunity in sufficient day light to witness the incident and the same would have any enduring impression upon their memory. It also assumes significance that the witnesses in their statement to the CBI also consistently gave description of Rajan Tiwari and therefore the mere fact that there was some delay in conducting TIP after bringing accused Rajan Tiwari to Bihar is of no consequence. It would also be pertinent to note that all the three eye witnesses correctly identified the accused in TIP and the accused Rajan Tiwari had not objected to the conduct of the said TIP on the ground that he was shown to the witnesses etc. It is also significant that the eye witnesses reside at Ranipatra whereas the accused Rajan Tiwari was lodged at jail in Patna. Therefore, the argument that the accused was shown to witnesses has no legs.
148. It has also been contended that during the interregnum the witnesses may have had the opportunity to see the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 174 photograph of the accused as it was published in newspaper. It is respectfully submitted that it was positively emerged in evidence that the witnesses did not see any photograph in the newspaper and in fact Times of India (in which photograph was alleged to have been published) was not widely circulated in the small town of Ranipatra where the witnesses resided. The accused have not led any evidence to rebut the said evidence and therefore this argument is also liable to be rejected. Reliance is placed upon the decision of the Hon'ble Kerala High Court in Sajeevan and Ors. v. State of Kerala reported as 1994 CriLJ 1316 wherein it was observed by KT Thomas, J. (as he was then) that it is not necessary that witnesses see photograph in the newspaper and the mere fact of publication of photograph in journalistic exuberance cannot throw overboard the evidence of a witness. Motive of Rajesh Ranjan @ Pappu Yadav successfully proved by the prosecution.
149. It is respectfully submitted that the prosecution has proved beyond shadow of doubt that the appellant Rajesh Ranjan @ Pappu Yadav, had developed a deep rooted political rivalry against Ajit Sarkar and had been a cause of ire in the mind of appellant Rajesh Ranjan @ Pappu Yadav, which is manifested by his proclamation in public gatherings that if he would win the election he would kill Ajit Sarkar in his house and if he would lose he would kill Ajit Sarkar. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 175 Ultimately, Rajesh Ranjan @ Pappu Yadav lost the election and Ajit Sarkar had acted against the party whips by not supporting Rajesh Ranjan @ Pappu Yadav. As highlighted earlier, there was clash in political stand points of the two as Rajesh Ranjan @ Pappu Yadav supported the landlords and Ajit Sarkar spearheaded the cause of landless cultivators. Ajit Sarkar had also raised questions on the floor of the House against the derelictions of Rajesh Ranjan @ Pappu Yadav and it can be safely inferred that these factors cumulatively impelled Rajesh Ranjan @ Pappu Yadav to author the conspiracy to kill Ajit Sarkar with a view to fuel his political ambitions and the said conspiracy was successfully executed by his henchmen. The said facts emerge from the testimony of Ravindar Nath Singh (PW7), Madhusudan Rishi (PW9), Lal Bahadur Uraon (PW 10) and Subodh Yadav (PW20).
Inter se proximity between the conspirators and the factum of being in constant touch near the time of incident.
150. As highlighted earlier a photograph (material exhibit
7) was recovered from the bedroom of the house of accused Rajesh Ranjan @ Pappu Yadav wherein Rajan Tiwari can be seen standing in company of Rajesh Ranjan @ Pappu Yadav and his family at some hill station. The said photograph was recovered by CBI on 17.02.1999 in pursuance of a search conducted after duly obtaining search warrants. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 176 It has also emerged in the judicial confession of accused Rajan Tiwari that in the morning Harish Chaudhary made Rajan Tiwari speak to Rajesh Ranjan @ Pappu Yadav from telephone installed at house of Pappu Yadav in Purnea to his telephone in his house at Delhi. After commission of the crime the assailants visited the house of Rajesh Ranjan @ Pappu Yadav and returned the weapons used in the commission of offence. Thereafter, Rajan Tiwari and Amar Yadav went to Katihar from where Rajan Tiwari made a phone call to residence of Pappu Yadav in Delhi from a PCO Booth. Rajan Tiwari thereafter spent some days in Siliguri and Darjeeling and from there he went to house of Rajesh Ranjan @ Pappu Yadav located at 9, Harish Chandra Mathur Lane at New Delhi. The family of Rajesh Ranjan @ Pappu Yadav along with Rajan Tiwari visited Patnitop and Vaishno Devi. The said facts stand corroborated as true by the call detail records and the photograph recovered by CBI. Pratap Yadav (PW1) who was earlier bodyguard of Rajesh Ranjan @ Pappu Yadav for 3-4 years although for reasons which are not hard to seek turned turtle in witness box and was declared hostile by the prosecution, however admitted that accused Anil Yadav would constantly meet accused Rajesh Ranjan @ Pappu Yadav during the period of elections. The said fact is also deposed by Madhusudan Rishi (PW9) and Lal Bahadur Uraon (PW 10). Therefore, the prosecution has successfully proved the factum of Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 177 proximity between the appellants before this Hon'ble Court and reliance is placed upon the decision of the Hon'ble Supreme Court repoted as (2010) 6 SCC 1 titled Sidhartha Vashishth @ Manu Sharma v. State (NCT of Delhi) wherein it was pertinently observed that the fact the accused persons were in constant touch after the commission of offence was a highly relevant circumstance that the court would take into consideration and the contention that the contents of the conversation were not known would not impair its relevance.
151. It would also be apposite to refer to the erudite observations of the Hon'ble Supreme Court in Firozuddin Basheeruddin and Ors. v. State of Kerala reported as (2001) 7 SCC 596 wherein the law with regard to conspiracy has been dealt in extensio and admissibility of evidence in regard to conspiracies under section 10 Indian Evidence Act that introduces the dimension of ‗vicarious liability' in conspiracy prosecutions has been reiterated after taking stock of catena of judgments of the Apex Court.
It has been observed:
"....Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where applications of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 178 liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a casual agent to each act...
.....Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions an declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co-conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Conspirators are liable on an gency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confreres..."
False and Bald denial in statement under section 313 Cr.P.C. by the appellants leading to an additional circumstance in the chain of evidence.
152. It is respectfully submitted that appellant Rajesh Ranjan @ Pappu Yadav has made prevaricating statements in his Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 179 examination under section 313 Cr.P.C. and also made bald denial of questions put to him by the Court. In response to question No. 6, Rajesh Ranjan @ Pappu Yadav has stated that he came to know Rajan Tiwari when he became a Member Legislative Assembly from Govind Ganj Constituency and did not know him earlier. Percontra, in response to question no. 19, the appellant Rajesh Ranjan @ Pappu Yadav gives a carte blanche denial that he does not know any Rajan Tiwari. The appellant Rajesh Ranjan @ Pappu Yadav has also taken a stand that he could not hear statement of any witnesses through video conferencing facility, which is palpably false as the Learned Trial Court while commencing recording of proceedings on every date would ensure that accused Rajesh Ranjan @ Pappu Yadav was available through the video conference link from Tihar Jail. The other appellants have tendered a bald denial to the incriminatory circumstances emerging in evidence against them, much less rendered any plausible explanation. The Hon'ble Supreme Court in catena of judgments has held that false explanations and bald denial by accused persons add as an additional circumstance to the chain of cirumstantial evidence and supply the missing link, if any. Reliance is placed uponthe judgment of the Hon'ble Supreme Court in Joseph v. State of Kerala reported as (2000) 5 SCC 197; State of Maharashtra v. Suresh reported as (2000) 1 SCC 471; Anthony D' Souza and others. v. State of Karnataka reported as Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 180 (2003) 1 SCC 259 and Munna Kumar Upadhyay (Supra).
Submission on behalf of P.W. 9
153. Learned counsel for P.W. 9 submitted that confession of Rajan Tiwary, Ext. 35 is detailed confession as therein he has not only indicated his introduction to the criminal world but also about the different crimes which he executed and appears to be voluntary in nature. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Henry Westmuller Roberts etc. etc. Vs. State of Assam and others etc., AIR 1985 Supreme Court 823, paragraphs 4, 17, 30, 31, 33 and Shankaria Vs. State of Rajasthan, AIR 1978 Supreme Court 1248, paragraph 52.
154. Learned counsel for P.W. 9 submitted that confession of Rajan Tiwary stands corroborated by three empty cartridges recovered from the place of occurrence, Ext. 9, two steel core portion recovered from the Car on 3.3.1999, Ext. 10. Reliance in this connection has been placed on the judgment of the Supreme Court in the case of Abdulvahab Abdulmajid Shaikh and others Vs. State of Gujarat, 2007(4) SCC 257. In connection with 313 Cr.P.C. statement of the accused persons learned counsel for P.W. 9 relied on the judgment of the Supreme Court in the case of Alister Anthony Pareira Vs. State of Maharashtra, 2012(1) PLJR 290(SC), paragraphs 14, 15, 49, 52, 59. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 181 Learned counsel for P.W. 9 distinguished the judgment in the case of Sarwan Singh (supra) with reference to paragraph 10 of the said judgment wherefrom it appears that the accused who recorded his confessional statement had blood stained cloths and visible sign of injury and that is why confession made by him was not accepted by the court.
155. Learned counsel for P.W. 9 next relied on the judgment of the Supreme Court in the case of Krishna Mochi and others Vs. State of Bihar, (2002) 6 SCC 81, paragraphs 31, 32, Dayal Singh and others Vs. State of Uttaranchal, (2012) 8 SCC 263, paragraph 21 and submitted that even one truthful witness is sufficient to hold the accused persons guilty of the crime.
156. Learned counsel for P.W. 9 also pointed out that investigation made by Sri A.K. Jha, P.W. 56 was not satisfactory which would be evident from the fact that he obtained warrant against Amar Yadav, Anil Yadav and Sanjay Rai on 27.6.1998 but did not execute the same until 12.8.1998 when he only examined Sanjay Rai under Section 164 Cr.P.C. and having examined Sanjay Rai did not take him in custody which would be evident from paragraphs 26, 27, 32 of the evidence of P.W. 56.
157. Learned counsel for P.W. 9 also referred to the report of P.W. 17 who conducted failed T.I.P. on 1.5.1999 and submitted that Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 182 the accused persons were so influential that they did not even allow the T.I.P. to be conducted inside the jail premises.
158. Learned counsel for P.W. 9 also referred to the evidence of P.W. 8, paragraph 16 and submitted that as P.W. 8 apprehended his own killing he did not report the matter to the local police. He also referred to paragraph 17 of the evidence of P.W. 8 where P.W. 8 stated that in spite of being provided with Bodyguard he remained fearful and did not give information even to the Court about his place of stay at Patna where he had come to depose in the trial. He also referred to order dated 9.4.2003 passed by the trial court whereunder orders were passed to provide security to P.W. 9.
159. Learned counsel for P.W. 9 also referred to the evidence of P.W. 10, paragraphs 3, 4 and submitted that C.B.I. was directed to provide security to P.W. 10.
160. Learned counsel for P.W. 9 also referred to the evidence of Ravindra Nath Singh, P.W. 7 that deceased Ajit Sarkar had raised question in the Assembly about the connivance of the jail staff with appellant Rajesh Ranjan @ Pappu Yadav when he was allowed to go to Purnia though he was not granted bail in a kidnapping case.
161. Learned counsel also referred to the evidence of Sri G.S. Saini, P.W. 59 paragraph 42 whereunder the witness stated that had Rajan Tiwary declined to record his confessional statement he would Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 183 have been sent to jail.
162. With reference to paragraph 96 of the evidence of P.W. 59 learned counsel submitted that P.W. 59 stated in court that he did not see any visible mark of injury on the person of Rajan Tiwary.
163. Learned counsel for P.W. 9 also distinguished the judgment of the Supreme Court in the case of Machhandar(supra) and submitted that the confession was not relied upon in the said case as the same was not brought to the notice of the accused while recording his statement.
164. Learned counsel for P.W. 9 reiterated the aforesaid submission also filed written submission stating that eye witnesses who had come for test identification parade were assaulted by accused in the present case of the police and the Magistrate in jail. Such was their clout and signal to the other witnesses that any one coming to depose against them would be harmed. The first six witnesses of C.B.I. turned hostile. At final count more than a third, that is 22 out of the total 61 witnesses turned hostile. Learned counsel also placed reliance in the written submission on the judgment of the Supreme Court in the judgment reported in 2005(3) SCC 284 in which Supreme Court noticed the fact that even after being lodged in jail the nefarious activities of Rajesh Ranjan @ Pappu Yadav continued unawaited and he was made accused in a case under Section 302 I.P.C.
Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 184
165. Learned counsel for P.W.9 also submitted that Rajan Tiwary recorded his 313 Cr.P.C. statement on 23.11.2006 in which Rajan Tiwary categorically denied to have made any judicial confession and stated that C.B.I. merely took his signature on blank paper. In this connection, it has been pointed out in the written submission that Rajan Tiwary made three retractions on 1.3.1999, 30.3.1999 and 1.5.1999. In first two retractions he had hinted at pressure from the C.B.I. which led him to make confession although with respect to the first retraction it is submitted that it was made in connection with some other case and not the present case. In the background of the contents of the three retractions learned counsel for P.W. 9 submitted that Rajan Tiwary having denied to have made any statement it clearly implies that P.W. 59 fabricated the confession. In view of the allegation of fabrication of confession the procedural shortcomings in the recording of the confession would be wiped out. Any objection to the manner of recording of confession cannot be taken and can certainly not be entertained in view of the statement of Rajan Tiwary that he did not make any statement. According to learned counsel what is required to be sen is whether P.W. 59 fabricated the confession which cannot be believed even for a memoent as the Metropolitan Magistrate a Judicial Officer uninterested in the case having no axe to grind testified before the court that he recorded the confession of Rajan Tiwary after Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 185 observing the safeguards there is no reason why the evidence of the Judicial Officer should not be accepted.
166. It is further submitted that this Court should place reliance on the confessional statement as it is not only voluntary but also trustworthy for the following reasons :
(a) The confession is full of facts and minute details which would only be known to the maker of the statement and none else. The very fact of the statement studded with such vivid details which only perpetrator of the crime would know, makes it spontaneous and voluntary which cannot be the result of tutoring, coercion or interpolation nor has been suggested by or on behalf of the appellants. In this regard reliance can be placed on the judgment of Henry Westmuller Versus State of Assam AIR 1985 SC 823 ( 3 Judges) and Shankaria Versus State of Rajasthan AIR 1978 SC 1248 (3 Judges).
(b) Not only does A3 speak in great detail about the crime in question but he also gives vivid details about his activities prior to this occurrence, particularly the other crimes in which he was involved. These details could not have been tutored to him by the CBI.
(c) All the necessary requirements have been fulfilled by the Magistrate P.W. 59 G.S. Saini who has recorded the confession Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 186 and after satisfying himself that the same is being made voluntarily he has gone on to record the same. A bare reading of the confessional statement along with the evidence of P.W.59 is a definite indicator of the fact that the learned Magistrate had complied with all the formalities of Section 164 of Cr.P.C.
(d) The requirement under section 164 (2) of Cr.P.C. that the Magistrate before recording any such confession would explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him, has been completely fulfilled by the Magistrate (P.W. 59) as when the accused was produced before him while he was holding court, he had asked the accused to go to his chamber, where he was all alone, and gave him one hour time to think over. Even after giving him warning on three different occasions that the statement that he was making could be used against him, accused Rajan Tiwari had insisted on making the statement. Thus the Magistrate had all reasons to believe that the statement was being made voluntarily. It is submitted that the appellants also do not suggest that no sufficient warning had been given to A3 by the learned Magistrate.
(e) As regards the issue of time for reflection is concerned, the Courts have time and again held that no straight jacket formula Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 187 can be applied and it will depend on the facts and circumstances of the case. The argument advanced by the appellants that at least 24 hours time should have been given ( in the light of Sarwan Singh Judgment, AIR 1957 SC 637) does not hold good in the facts of the present case and as has been also discussed in Henry Westmuller case and in the case of Shankaria versus State of Rajasthan AIR 1978 SC 1248 ( 3 Judges). The facts in Sarwan Singh case were materially different in as much as there were evidence of visible marks of injuries on the person making the confession and clothes were also blood stained, while in the case at hand as per the evidence of P.W.59 he has categorically submitted before the court that there were no visible marks of injuries on his person. Thus there was subjective satisfaction of the Magistrate that the person was not forced or coerced into making the statement, which is the requirement of law.
(f) In Shankaria case the Apex Court has in crystal clear terms laid down that there is nothing in statutory provision in Section 164 Cr.P.C. or elsewhere, or even executive direction issued by the High Court that there should be an interval of 24 hours or more between the preliminary questioning of the accused and recording of his confession and how much time for reflection Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 188 should be allowed to an accused person before recording his confession is a question which depends on the facts and circumstances of each case.
(g) The appellant has neither before the Chief Metropolitan Magistrate on 22.02.1999 and on 23.02.1999 ( while he was being sent for judicial custody) as well as before P.W. 59 on 22.02.1999 complained of any police torture, undue influence or coercion or that the confession was put in his mouth by someone else.
(h) The subsequent retraction by Rajan Tiwari in the present case does not benefit him at all and rather the same can be read against him. This is so because the retraction does not come at the immediate instance. The first so-called retraction dated 01.03.1999 is silent about the confessional statement dated 22.02.1999. It rather relates more specifically to a different case. This gets aggravated from the fact that he was produced by the Delhi Police for extension of his judicial remand on 26.02.1999 before the Magistrate and he has not complained that the confession dated 22.02.1999 was obtained from him by using illegal methods. He was then produced in Court, in the presence of his advocate, on 09.03.1999 before the Magistrate by CBI but still, for the reasons best known to him, he has not even Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 189 remotely whispered anything to suggest that the said confession was not in his words. As such his first retraction comes after a gap of more than one month i.e. on 31.03.1999 from Jail and then the second one on 21.04.1999. As such on this belated retraction no reliance can be placed.
(i) It is submitted that merely because confession was retracted, it need not be taken as confession under pressure nor any such presumption can be raised. State of mind of accused is a relevant factor. All precautions were taken and all formalities were complied with. All confessions are retracted at a later stage and rather the Hon'ble Apex Court has observed that confession not being retracted is a rarity. Therefore it is not a ground to discard confession. Reliance is placed on Abdulvahab Abdulmajid Shaikh Vs. State of Gujarat (2007) 4 SCC 257.
(j) The plea of the appellants that the confession has not been signed by the maker on all the pages does not hold water in light of the judgment of Hon'ble Supreme Court in State of Tamilnadu versus Nalini AIR 1999 SC 2640 (3 Judges) where it has been held that there is no requirement in law that the confession should be signed by the maker on all the pages and requirement of law is that confession should be signed by its maker at the end of confession. It may be added here that in Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 190 Nalini's case despite the fact that the signature was missing on the last two pages the confession was accepted as voluntary.
(k) As per as the argument by the appellants with regard to Section 30 of the Evidence Act goes, it is to be submitted that as on date, the aforesaid provision is very much there in the statute and unless declared ultra vires the same has to be applied in the manner the statute provides. In AIR 1970 SC 45 (Md. Hussain Umar Kochra etc. Vrs. K.S. Dalipsinghji and another), the Apex Court has observed that case of retracted confession of co- accused, u/s 30 Evidence Act, Court can take into consideration such confessions although it cannot be made foundation of the conviction. As such it is to be seen that there is nothing in law which precludes from using the confession of the maker against the co-accused with certain other corroborating circumstances.
(l) Further it is not open to the appellants to plead that the tenor of confession shows that it is exculpatory because the mere reading of the same would clearly demonstrate that the maker had played active role in the whole incident and he knew what the object of the conspiracy was. Therefore, his knowledge and participation in the commission of the offence remains undisputed as per his statement.
(m) The defence / appellants have raised contradictory pleas Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 191 regarding the confession. On one hand it has been argued that the confession was recorded under pressure, secondly they have raised a plea that the signature of Rajan Tiwari were taken on blank papers and thirdly it has also been argued that there was fabrication and interpolation in the confession i.e. Exhibit 35. All these run contrary to each other because if fabrication was required then there was no need to get signature on blank papers or use force/ coercion / threat etc. The said pleas, it is submitted, are destructive of each other.
(n) In the statement recorded under section 313 of Cr.P.C. appellant Rajan Tiwari has made a blanket statement that no such confessional statement was recorded / given by him. This has no value in as much as it gain runs contrary to all his previous stands in this regard. It is submitted that the A3 has in this regard failed to take a clear and explicit stand. Reference to Abdulvahab Abdul Majid Shaikh Case (Supra).
(o) In fact, the statement of Rajan Tiwari under Section 313 of the Cr.P.C. would have the effect of completely wiping out his three retractions as false and untrue because the implication of his this statement is that the MM had fabricated the confession, which cannot be believed.
(p) Another argument raised on behalf of the appellants challenging Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 192 the confession on the ground that no legal assistance was provided to A3 before his confession was recorded is completely unacceptable in view of the recent judgment of the Apex Court in the case of Md. Ajmal Amir Kasab versus State of Maharashtra (2012) 9 SCC 1. It has been clearly held failure to provide a counsel at the pre-trial stage would not have the effect of vitiating the trial.
164(2) & 164(3)
(q) It is respectfully submitted that the submission of the appellants that sub-section 3 of Section 164 Cr.P.C. has to be read into Section 164(2) is not legally tenable. Moreover, it is not a pre- requisite for the Magistrate to give a prior warning to the person making the confession that if he refuses to make the confession then he will not be sent into police custody rather he will be sent into judicial custody. There is, it is urged, no such legal requirement. It is submitted that the provisions of Section 164(3) are clear, explicit and do not call for any other interpretation. This is so because on the plain reading of Section 164(3) it is clear that only when the person appearing before the Magistrate ‗states' that he does not want to make the confession, the Magistrate is duty bound not to authorize further detention of that person in police custody. Even if a different interpretation of Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 193 the same is taken to mean that assurance has to be given prior to recording of confession whether or not he declines to give the statement, no adherence to the same would not render the confession as involuntary in view of the substantial compliance of the procedural requirements coupled with the satisfaction of the Magistrate regarding its truth and voluntariness. Reference in this regard be made to deposition of P.W.59 paragraph 81 Page 651 & 652.
(r) The matter relating to admissibility of any evidence brought before a court of law and / or relevance thereof is governed by the provisions of the Indian Evidence Act, 1872.
Section 24 of the Evidence Act provides that a confession made by an accused by way of inducement, threat or promise would become irrelevant in criminal proceedings. Section 25 makes any confession made before a police officer to be wholly inadmissible in evidence. Section 29 of the Indian Evidence Act, however, deal with confession, which is otherwise relevant in the following terms:
―29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc. - If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 194 deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him.‖
(s) The provisions of the Indian Evidence Act, 1872 are substantive in nature; whereas loosely speaking, the provisions relating to confession made in the Code is procedural in nature, although it is not suggested mean that the requirement of rendering warning could be a mere formality.
(t) It is also true that having regard to the expanded right of the accused as envisaged under Article 21 of the Constitution of India, every person accused of an offence has a fundamental right to be given such warnings but it does not mean that an accused would claim a right which is not envisaged in law.
Certain provisions of the Code in this connection may be noticed:
― 164(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 195 any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.
463. Non- compliance with provisions of section 164 or section 281.
(1) If any Court before which a confession or other statement of an accused person recorded, or purporting to be recorded under section 164 or section 281, is tendered, or has been received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in section 91 of the Indian Evidence Act, 1872 (1 of 1872), take evidence in regard to such noncompliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement. (2) The provisions of this section apply to Courts of appeal, reference and revision.‖ (u) Sub-section 3 of Section 164 of the Code, ipso facto does not Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 196 contain any statutory warning which must be given to the accused which has otherwise been provided in sub-section 2 of Section 164 of the Code. Broadly stated, therefore, whereas sub- section 2 of Section 164 of the Code is couched in mandatory terms; sub-section 3 of Section 164 of the Code restricts the power of the Magistrate to authorize the detention of the accused in police custody. It may not be necessary for us to consider the options open to the Magistrate if the accused does not express his willingness to make the confession. Suffice it to say that on a plain reading it appears that sub-section 3 of Section 164 of the Code does not mandate that the magistrate must give a pre- warning to the accused, who has been brought before him to make a confession.
(v) Even sub-section 2 of Section 164 although couched in mandatory term, Section 463 of the Code makes such an omission to be an irregularity, which can be explained otherwise by the Magistrate himself, in the event the Sessions Judge calls upon him to do so. Sub-sections 2 and 3 of Section 164, therefore, stand on different footings.
(w) A distinction must also be borne in mind with regard to the admissibility and inadmissibility of a confession. Whereas Sections 24 and 25 of the Indian Evidence Act makes the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 197 confession made by an accused wholly inadmissible if the foundational facts in relation thereto are proved, Section 29 makes such a confession made before a Magistrate admissible, although no warning had been given to the accused.
(x) It is one thing to say that the prosecution is precluded from bringing the confession of a accused on record being inadmissible in character, but it is another thing to say that such confession may be admissible in evidence, but whether a judgment of conviction can be recorded on the sole basis of such confession or not would fall within the realm of appreciation of evidence. For the aforementioned purpose, the Court is entitled to consider such confession from various circumstances. It is submitted that in this case, the confession coupled with the other evidence available on record is sufficient to record a finding of conviction, as has rightly been done by the learned trial court. (y) Some decisions of the consequence of alleged / purported failure on the part of the learned Magistrate to give warning to the effect that he would not sent back to the police custody, if he does not make the confession may be noticed.
(z) In Dagdu Vs. State of Maharashtra (1977) 3 SCC 68, a three judge bench of the Apex Court stated the law in the following terms:
Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 198 ―51. Learned counsel appearing for the State is right that the failure to comply with s. 164 (3), Criminal Procedure Code, or with the High Court Circulars will not render the confessions inadmissible in evidence. Relevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act. Section 29 of that Act lays down that if a confession is otherwise, relevant it does not become irrelevant merely because, inter alia, the accused was not warned that he was not bound to make it and the evidence of it might be given against him. If, there -fore, a confession does not violate any one of the conditions operative under ss. 24 to 28 of the Evidence Act, it will be admissible in evidence.
But as in respect of any other admissible evidence, oral or documentary, so in the case of confessional statements which are otherwise admissible, the Court has still to consider whether they can be accepted as true. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession even if it is admissible in evidence. That shows how important it is for the Magistrate who records the confession to satisfy him- self by appropriate questioning of the confessing accused, Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 199 that the confession is true and voluntary. A strict and faithful compliance with s. 164 of the Code and with the instructions issued by the High Court affords in a large measure the guarantee that the confession is voluntary. The failure to observe the safeguards prescribed therein are in practice calculated to impair the evidentiary value of the confessional statements.‖ (aa) Having regard to the evidence of the Magistrate that he did not comply with the requirements of Section 164, the confessions of the approvers was not accepted. Each case, it is urged, must be considered on its own facts.
(bb) The Supreme Court in Rabindra Kumar Pal (Dara Singh) case (2011) 2 SCC 490, on which strong reliance has been placed by the appellants, referred to its earlier decision in Dagdu (supra). It is submitted that sub-para
(v) of para 64 of the judgment do not reflect the correct position of law as stated in Dagdu (supra) and other cases. The Apex Court in Rabindra Pal (Supra) should not be considered to have laid down any law which would render the requirements (if any) of informing the accused as to his right that he would not be remanded to the police custody in the event he does not make a confession Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 200 subsumed into sub-section 2 of Section 164 of the Code. (cc) It will bear repetition to state that they stand on different footings and must be read disjunctively and not conjunctively.
(dd) Moreover, if the Court finds any inconsistency between the two decisions, it is well settled that the decision of a three judge bench shall prevail over a decision of a two judge bench, for the reason that it could not have overruled the decision of a larger bench and / or was otherwise bound to follow the same.
(ee) That being the law with regard to the law of precedence, it may not be correct to contend that sub-section 3 of Section 164 of the Code provides for any requirement of a pre-warning and in the event of failure on the part of the Ld. Magistrate to give such pre-warning, the same would make the judgment of conviction and sentence liable to be reversed.
(ff) Furthermore, in Rabindra Kumar Pal (Supra), it does not appear, that the applicability of the provisions of Section 29 of the Indian Evidence Act as also 463 of the Code had been taken into consideration.
(gg) It may be noticed that there are some judgments, which Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 201 make the provisions of Section 29 prevail over the provisions of Section 164 of the Code. See Rangappa Hanamappa and Anr. Vs. State reported in AIR 1954 Bombay 285 (para 21), Vellamoonji Goundan Vs. Emperor AIR 1932 Madras 431. In Emperor Vs. Jamuna Singh and others reported in AIR 1947 Patna 305, a two judge bench differed on their opinion with regard to interpretation of Section 164 of the Code vis-à-vis Section 29 of the Evidence Act (see paras 11 and 35 for the conflicting opinion). In that case a re-trial was ordered. (hh) Yet again in State Vs. Mittoo, death Reference No. 3 of 76 Delhi High Court in a judgment reported in MANU / OR/005 of 1978 laid emphasis on Section 29 of the Evidence Act. See also 1982 Crl. LJ 269, ILR 1962 Madhya Bharat 133, 1954 Crl. LJ 887: AIR 1954 Bom 285 at 290 and 292, view of Rai J, in 1947 Patna 305 dissented from.
(ii) What, in law, is needed that the confession should be a voluntary one and all warnings are necessary so that the Ld. Magistrate satisfy himself that the same was being made voluntarily. Absence of warning under Section 164 (3) of the Code would not make confession inadmissible Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 202 provided that accused knows that what is stated shall be recorded and it would be used in evidence against him (2005) 1 Andhra Legal Decisions (Crl.) 900 : (2005) 2 Andhra LT (Crl) 200 DB.
(jj) It is further pertinent to mention here that Rajan Tiwari has a background where he is an accused in large number of cases, including murder cases and has been facing trial. Therefore this is not a person who can be expected to be ignorant and oblivious to the provisions of law, particularly those which concerns the rights of an accused. Further, a bare reading of his retraction dated 30.03.2011, which was written by him and not by his counsel, shows that he had a clear understanding of the niceties of law as he is well aware of the various provisions of law, including Section 164 of the CrPC. What is further pertinent to note is that A3 had access to legal advise almost immediately after the confession was recorded as the order sheets of the Ld. MM of dates subsequent to the recording of the confession demonstrate.
(kk) It is further submitted that if the interpretation sought to be given by the appellants to Section 164 of reading Section 164(3) into Section 164(2) is to be accepted then Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 203 it would become a handle for misuse in the hands of criminals, particularly hardened criminals like the accused of this case. In every case where the IO obtains police custody of an accused, the accused would straightaway say that he desires to give a judicial confession but no sooner is he brought before the Magistrate and the Magistrate tells him that in case of refusal to give confession, he would not be sent to police custody but judicial custody, he would straightaway refuse to give confession and then the Magistrate would have no option but to send him to judicial custody. This would thus become a handle for veteran criminals to avoid police custody. Such can certainly not be the import of the law. It is therefore necessary that the provisions of Section 164(2) and 164(3) should be read reasonably to avoid such consequences.
(ll) The common thread running through almost all the judgments of the Hon'ble Supreme Court as well as various Hon'ble High Courts is that there must be a satisfaction that the confession was voluntary. That is the only test. Even alleged non adherence to various procedural safeguards can never be sufficient to disbelieve Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 204 a confession if the court is otherwise satisfied that the confession was voluntary.
167. The other factors which corroborate the confessional statement of Rajan Tiwary according to learned counsel for P.W. 9 are as follows:-
(i) In this case confessional statement is supported by the disclosure cum pointing out memo (Ext. 43/1) of Rajan Tiwary whereupon facts have been discovered in support thereof.
(ii) Both the confessional statement as well as the aforesaid disclosure statement also point out that there was a deep rooted political rivalry between Pappu Yadav and deceased Ajit Sarkar.
(iii) The other instance that lends support to the confession and which also figure in the disclosure statement made by Rajan Tiwari is the phone records. He has categorically stated in both the statements that he had a talk on telephone with Pappu Yadav on 14.06.98 before the incident and after the incident. In this regard the prosecution has brought on record the print out (Exhibit 3 and 4) of the telephone of Pappu Yadav's Delhi residence and his Arjun Bhawan residence at Purnia as well as the PCO booth at Katihar. Further the witnesses have also been examined in this Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 205 regard who support the case of the prosecution. It has also come on record that Rajan Tiwari had himself stated that he had made a phone call at the residence of Pappu Yadav at Delhi and then at his residence at Gorakhpur from the Katihar PCO (Anand PCO/ Naiyer PCO) on 14.02.98 after the commission of the crime. This fact finds support in the telephone printouts showing that there was a telephonic conversation between Pappu Yadav and Rajan Tiwari just prior to and after the commission of crime. Telephone calls indicating conversation between Pappu Yadav ( at Delhi) and Rajan Tiwary ( at Anand PCO / Naiyer PCO of Ramnani, Kathihar) [ P.W.6, 12 and 52] { Ext. 3 series, 4, 32} - at times in close proximity of the commission of the crime. Attention is also invited to the statement of P.W.12 and P.W. 52 para 6 pg 395 in this regard.
(iv) These documents relating to telephone calls in the form of print outs have been obtained in ordinary course of activity of the computer and proved by the concerned official who has procured the same in regular course of his official duties. Hence, these print outs are admissible in evidence and there is no reason to doubt the same.
(v) It is submitted that the telephone records might not Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 206 be of much help, if seen in isolation, but when seen in the context of the confessional statement and the statement of eye witnesses, it becomes a very important piece of evidence. It clearly corroborates the confessional statement.
(vi) The recovery of red coloured bullet motorcycle on the disclosure of Anil Yadav from his residence which was used in the commission of offence. [P.W.61 para 23, pg. 684, Seizure memo Ext. 40, Disclosure Memo Ext. 43]
(vii) The fact of following Ajit Sarkar's white ambassador car by four persons on two motorcycles out of which the names of Harish Choudhary, Amar Yadav and Anil Yadav figure out on bullet and Yamaha motorcycles finds corroboration from the evidence of P.w.15 & 16. They also support the stand of P.W.25 that two persons got down from the car of Ajit Sarkar near the market. As such their testimony cannot be brushed aside merely on the account of they being chance witnesses. They do support the prosecution case that the car of Ajit Sarkar was being followed by the above mentioned persons on the day and time of incident.
(viii) Another admitted circumstance is that the cause of death of the deceased persons being firearm injuries fired from close range in the car on account of firing of bullets. [ Medical Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 207 evidence thus supportive of prosecution case]
(ix) The scientific Evidence with regard to the three empty cartridges seized from the scene of occurrence by P.W.56 on the same day is very much clear that the said three fired bullets could have been fired from AK 47 only. In this regard the statement of P.W. 28 (Senior Scientific Officer, Head of CFSL) assumes significance. (See Exhibit 9 series and 10)
(x) On inspection of the damaged car by Principal Scientific Officer CFSL (P.W. 33), two steel core portions were recovered from the car (Seizure memo Ext. 10) Report regarding steel core portion (Ext. 9/2) - Came from disintegration of two 7.62 mm assault rifle fired bullets.
(xi) The examination report of car Ext. 9/1 showing holes found in car by passage bullets fired from 7.62 mm assault rifle.
(xii) It is also important to mention here that mere non-
recovery of the said AK 47 is not fatal to the case of prosecution. Admittedly, the CBI came in picture after 4 months of the incident as such it was not probable for it to recover the said weapon.
(xiii) On the basis of disclosure by Rajan Tiwary, the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 208 premises of Pappu Yadav was searched and one photograph of Pappu Yadav with his wife and Rajan Tiwary was recovered ( Mat. Ext. VII) and seized - seizure list Ext.39. This will show that both the appellants were very well known to each other from before. However, surprisingly the defence has taken a bald plea of morphing of the photograph but has not controverted the same in as much as the recovery from the residence of Pappu Yadav is not doubted. As such their first denial at the stage of statement under section 313 Cr.P.C. is only an after thought which does not deserve any consideration. It may be pertinent to mention here that the record of this case leaves no manner of doubt that the accused in this case, particularly A1 have been filing petitions, and upto the Apex Court, at the drop of a hat. If what is now being argued about the videoconferencing getting disconnected is true, then it can not be believed that A1 would have left it that and not taken it up to the highest court, if he had actually been prejudiced by such a thing.
(xiv) In this connection it is also relevant to point out that the reliance by the defence on the case of Machander Vs. State of Hyderabad (AIR 1955 SC 792) is totally misconceived and unfounded as this judgment nowhere postulates the actual Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 209 production of the material Ext. before the accused while his 313 Cr.P.C. statement is being recorded. In the said case the circumstance of confession itself was not put to the accused. In this regard reference is drawn to the case of A.A. Pareira Vrs. State of Maharashtra (2012) Vol. 1 PLJR 290 (SC) which lays down the test of prejudice and also states that failure in not drawing the attention of the accused would not by itself render the trial against the accused void and bad in law as the procedures contained in Cr.P.C. is designed to further the ends of justice and not to frustrate them by introducing hyper technicalities.
(xv) P.W.59 (Magistrate recording the confession of Rajan Tiwary) did not have any axe to grind against any of the appellants much less Rajan Tiwari and he will not have any reasons to falsely implicate him or the appellants. It is also to be seen that the evidence of disinterested witness like that of a Magistrate cannot be doubted or brushed aside. Daya Singh versus State of Haryana (2001) 3 SCC 468.
C. Test Identification Parade
168. The identification of accused Rajan Tiwary by P.Ws. 8, 9 and 10 in the TIP at Beur Jail despite the atmosphere of hostility lends further assurance to the correctness of the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 210 prosecution case with regard to complicity of Rajan Tiwary. In this connection, reference is made to Exts. 5, 6 and 7 and deposition of P.Ws. 13 and 17 In this connection, it would be apt to point out that the three witnesses have been cross-examined at length on the point that the CBI had shown the photograph to them before TIP or they had seen them earlier in newspaper etc has been categorically denied. It has also been denied that the CBI had shown the appellant Rajan Tiwari to them has also been denied.
It will also be relevant to point out that P.W.8 K.C. Sarkar has categorically stated in his evidence that he remembered the face of Rajan Tiwari from the beginning. [Para 3 page 40] In this regard reference may be made to the decision of the Apex Court in which it has been held that mere publication of photographs in the newspaper is no ground to disbelieve the test identification parade and delay in holding TIP is snot fatal to the prosecution case. ( See Munna Vrs. State of A.P. (2012) 6 SCC 174 and Anil Kumar Vrs. State of U.P. ( 2003) AIR SCW 977) The witnesses have given specific description of Rajan Tiwari and that assumes importance since their statement was recorded before CBI in October 1998 while the TIP took place in May 1999 and Rajan Tiwari fitted in the description given by the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 211 eye-witnesses before CBI. { See Daya Singh versus State of Haryana (2001) 3 SCC 468} The investigation conducted by local I.O. i.e. P.W. 56 A.K. Jha
169. The investigation conducted by local I.O., P.W. 56 is vitiated for the following reasons :-
a. Although as per P.W.56 he had recorded the fardbeyan of K.C. Sarkar at the residence of Ajit Sarkar at 5.45 p.m. but his statement is belied from his own deposition. He admits in his deposition that he had received the information of firing on telephone at about 5.00 p.m. and then he directly reached the P.O. He has stated that he reached the P.O. at 6.30 p.m. [ para 3, pg 431-32 read with para 6 pg. 439] b. P.W. 8 has categorically stated that he had not made any statement before the police and only is signature were taken on 15.06.98. This is important in light of the fact that Exhibit 31 which is the FIR of local police clearly shows that it was sent to the court of CJM, Purnia on 16.06.98 by a special messenger. As such it is hard to believe that if the statement was recorded on 14.06.98 then there was no reason for the FIR to be sent on 16.06.1998. Rather it lends support to the case of P.W. 8 to 10 that only the signatures of P.W.8 and 10 were taken on 15.06.98.
c. Further this has also to be seen in light of the inquest Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 212 report which is said to have been made between 6.00 to 6.30 p.m. In this regard the statement of P.W. 21 ( para 147) assumes importance who has deposed that he did not go to the place of incident and his signature was taken by the local police at his tea shop.
d. P.W.56 has accepted in his statement that he had taken warrant of arrest against Anil Yadav, Amar Yadav, Sanjay Rai and one Pawan Yadav on 27.06.98 only but for the reasons best known to him he has not done anything against them specially Amar and Anil throughout the period he was investigating which is almost 3 months till he submitted his charge sheet.
e. The names of 11 persons including the present appellants had transpired in the 164 Cr.P.C. statement of Sanjay Rai as early as on 12.08.98 but again for the reasons best known to him he has not done anything against them till he had submitted the charge sheet - a fact which has been admitted by this witness in his deposition ( Para 31 pg 454).
f. P.W. 56 had carried on the investigation for a period of 101 days but he had maintained diary only for 18 days - a conduct which is unbecoming of a police officer who is investigating a case of the murder of sitting MLA.
g. Although the State notification for transferring the case to CBI had come on 11.08.98 but knowing this fact he had submitted Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 213 the chargesheet on 20.09.98 and soon thereafter the notification of Central Government had also come on 29.09.98. As such it also clouds the conduct of said witness.
Effect of Evidence of P.W. 25 and P.W.19
170. According to learned counsel for P.W. 9 evidence of P.W. 25 and 19 should not be relied upon for the following reasons :-
1. The evidence of P.W.25 has to stand the test of scrutiny in as much as it does not inspire confidence when read as whole. This is so because the conduct of this witness, who is a bodyguard of the deceased Ajit Sarkar, cannot be ignored.
He being a security officer, remained ducked inside the vehicle for a long time, much after the incident was over. He has admitted that there was a huge crowd immediately after the incident. This should be read in harmony with the evidence of other witnesses as well. As such it was not easily possible to identify each and every person coupled with the fact that he had sustained gunshot injuries and was in a state of shock.
2. That the same test of reliability should be applied to P.w.19 as well. The appellants seek to take advantage the statement of this witness in his cross examination wherein he has stated that K.C. Sarkar came after 45 minutes and was Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 214 shouting as to who had killed. This has to be looked at after reading the testimonies of all the witnesses as a whole. The P.W. 8 is consistent in his stand that he did not know Rajan Tiwari from beginning. Further, even as per prosecution witnesses, who were at the scene of occurrence on the day of the incident, there was a huge crowd at the place of the incident. So taking this further and then reading it with the abovementioned statement of P.W.19 on which the appellants seek to rely, it can be safely concluded that only when P.W.8 had shouted that P.W.19 noticed him in the crowd and since P.W.8 was not knowing assailants by name, this explains the utterance of P.W.8 as to who had killed his brother.
Evidence of Eye witnesses
171. Evidence of eye witnesses P.Ws. 8 to 10 should be relied upon for the following reasons :-
1. P.W. 8, 9 & 10 read together are consistent before CBI as also during trial of being at the house of Ajit Sarkar for valid reasons.
2. Consistent statement of leaving from the house of Ajit Sarkar together carrying their cycles.
3. Their explanation of leaving the house of Ajit Sarkar on Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 215 account of bad weather gains strength from the evidence of P.W. 8, 9, 10 and 21
4. Consistent statement with regard to having witnessed the occurrence from a distance of 100 to 150 yards.
5. Consistency in the manner of assault.
6. Consistent on the point of not having given any statement to local police on account of fear and threat to life.
7. All the three witnesses are consistent in their identification of Rajan Tiwary at TIP as well as in court. Anil Yadav has also been identified by P.W.9 & 10 in dock.
8. The assault on P.W.8 during TIP lends support to the fact that the accused had apprehension of being identified and had therefore made preparation for frustrating the TIP and intimidating the witnesses. P.W.9 & 10 also met with bad treatment upon identifying the accused.
9. All the three witnesses stood the test of lengthy cross examination on the point of photograph of Rajan Tiwary not having been shown to them or seen by them prior to TIP.
10. P.W. 8 being the full brother of deceased Ajit Sarkar would not make an effort to screen the real culprit and allow them to escape conviction.
11. There is no reason on part of these witnesses to falsely Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 216 implicate the appellants as they had no personal animosity with them. Moreso when Rajan Tiwary was an outsider whom they did not know by name on the date of incident.
12. There is no plausible cause as to why they would risk their lives to only play into the hands of the CBI or any other political party. ( Atleast P.W.8 and 10 are simple villagers with no concern with politics.)
13. The credibility of these witnesses cannot be impeached because of minor contradictions and inconsistencies. Wholistic view to be taken while appreciating the evidence of witnesses.
The reasons for the silence of the witnesses has to be seen in light of the following facts:
172. According to learned counsel for P.W. 9 the silence of P.Ws. 8 to 10 for six months is to be seen in the following backgrounds :-
1. Murder of powerful politician (Sitting MLA) in broad day light by use of sophisticated weapons like AK47.
2. The assailants ( Known by face or name) were seen in company of Pappu Yadav, powerful and influential politician with criminal record.
3. Gross killing of three persons, one of them being Ajit Sarkar with security, at a busy road is sufficient to instill fear in the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 217 minds of people with no power and influence.
4. The apprehension of threat to life was not unfounded in view of the fact that but for related, associated and official / formal witnesses, more than 20 witnesses have turned hostile and have resiled from their statement before CBI and even wife of slain MLA, the other brothers and daughter of the deceased Ajit Sarkar have not come to depose.
5. The treatment meted out to the witnessed during TIP further corroborate the threat & terror factor. The first TIP was carried out on 01/05/99 by P.W.17 (Ext.7) in which all three i.e. P.W.8 to 10 were present. However, due to unruly behavior of the inmates of the jail the process of identification could not be completed. In this regard, the report of the Magistrate(P.W.17) which has been marked as Exhibit 7 assumes great importance.
It will be sufficient to show that the extent to which the appellant Rajan Tiwari tried to intimidate the witness. No fingers can be pointed out at the said TIP after it has been read as a whole. The second TIP conducted on 13/5/99. P.W.9 & 10 identify Rajan Tiwary but both are SLAPPED. This also points out that the appellant was still not ready to budge down and he had again sent a message to the witnesses that they should not stand in his way. (Ext.5 & 6) Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 218
6. Witnesses had apprehension of undue influence being exercised over the local police and were thus not confident of fair and impartial investigation coupled with apprehension of security threats to them, could only muster courage by the advent of independent investigating agency of CBI. The murmuring of the investigation of the case being handed over to CBI had already started which crystallized in the shape of state government notification dated 11.08.1998 i.e. less than two months of the date of occurrence.
7. In this light the judgment of Krishna Mochi and others Vs. State of Bihar (2002) 6 SCC 81 assumes importance wherein the Apex Court has referred to the sharp decline in ethical values in public life and have stressed on the fact of the witnesses not being inclined to depose for manifold reasons being not having courage on account of threat to life etc. Morseso when offenders are habitual criminals, highups and musclemen. It has further been observed in the said case that the maxim - let 100 guilty be acquitted but not a single innocent be convicted is now changing as society not only suffers by wrong conviction but it equally suffers by wrong acquittal.
8. The case of Dayal Singh and others versus State of Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 219 Uttaranchal (2012) 8 SCC 263 also needs a reference wherein the I.O. and the doctor had both failed to perform their duties. The duty of the court in cases of such lapses is to see if evidence given in court should be relied upon and acquittal on grounds of defective investigation would amount to playing in the hands of I.O., if designedly defective. In criminal cases, fate of proceedings cannot be left in the hands of parties as crime is a public wrong.
9. It is humbly submitted that courts cannot shut their eyes to ground realities and this is one such case that owing to the reign of terror prevailing in Purnea, the witnesses could not have dared to approach any authority against the accused persons but no sooner did the CBI take up investigation, they faithfully got their statements recorded. The argument that if the witnesses did not trust the state police, they ought to have filed complaints before the court is not valid because even if the witnesses or the informant had filed a complaint, they would never have the sufficient wherewithal to obtain sufficient evidence against the might of the accused. In a private complaint, it is the complainant who has to adduce evidence and if the accused of this case could try to till them in course of a TIP, it can well be imagined how they would have secured Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 220 any evidence. Further, when more than one third of the PW's turned hostile even when the investigating agency was the CBI, it can well be imagined how many witnesses the poor complainant would have managed to bring to the court, in a private complaint.
Investigation by CBI- further investigation
173. According to learned counsel for P.W. 9 investigation by the C.B.I. is further investigation, which would be evident from the following facts :-
1. What is being contended by the accused is that since the Magistrate at Purnea had taken cognizance of offences, the CBI should have continued the proceedings before that court and the accused of the first chargesheet could not have been discharged by the CBI Magistrate and the trial of both sets of accused should have been amalgamated. It is being argued that the CBI investigation as also the proceedings before the Special Magistrate and the Special Judge CBI are vitiated on account of these. In this regard, a reference to Section 465 of the Cr.P.C.
may be relevant:
―465. Finding or sentence when reversible by reason of error, omission or irregularity.--(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 221 a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.
(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.‖
2. In light of the aforesaid provision, it is submitted that all grounds being raised by the appellants accused at this appellate stage are of no consequence and are fit to be rejected in view of the clear statutory intendment.
3. In fact in a recent judgment of the Hon'ble Supreme Court reported in (2012) 4 SCC 566 it has been held " 37. On a studied scrutiny of the anatomy of the said provision, it is luculent that the emphasis has been laid on a Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 222 ―court of competent jurisdiction‖ and ―error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial‖ and ―a failure of justice has in fact been occasioned thereby‖. The legislative intendment inhered in the language employed is graphically clear that lancination or invalidation of a verdict after trial is not to be taken recourse to solely because there is an error, omission or irregularity in the proceeding. The term ―a failure of justice‖ has been treated as the sine qua non for setting aside the conviction.
And further held:
62. We have referred to the aforesaid authorities to illumine and elucidate that the delay in conclusion of trial has a direct nexus with the collective cry of the society and the anguish and agony of an accused (quaere a victim). Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused but, a pregnant one, every procedural lapse or every interdict that has been acceded to and not objected at the appropriate stage would not get the trial dented or make it unfair. Treating it to be unfair would amount to an undesirable state of pink of perfection in procedure. An absolute apple-pie order in carrying out the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 223 adjective law, would only be sound and fury signify nothing.
63. In the case at hand, as is perceivable, no objection was raised at the time of framing of charge or any other relevant time but only propounded after conviction. Under these circumstances, the right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been failure of justice or prejudice has been caused to him. Unless the same is established, setting aside of conviction as a natural corollary or direction for retiral as the third step of the syllogism solely on the said foundation would be an anathema to justice.‖
4. It has been observed by even the Apex Court that the accused in this case delayed the trial by adopting every trick in the book and filing petitions at the drop of the hat. Therefore it is very difficult to believe that had the accused actually been prejudiced by any order passed by the trial court, they would not have challenged the order.
5. With reference to the judgment of the Apex Court in Vinay Tyagi's case (delivered on 13.12.2012) it is submitted that it is an admitted position that this was a case of further investigation and not re-investigation. Insofar as the present set of accused Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 224 are concerned, they were duly chargesheeted and have been tried in accordance with law on the basis of evidence adduced by CBI against them. Therefore no prejudice has been caused to them on account of the fact that the accused of the chargesheet submitted by the state police have not been tried. Even insofar as this chargesheet is concerned, the accused of this chargesheet have been discharged by the CBI Magistrate in light of the evidence collected by the CBI. Moreover, the entire records of the Purnea proceedings were eventually transferred to the CBI court and it was only thereafter that the trial has been concluded. Therefore no prejudice whatsoever has been caused to the present accused on this account. Further more the fact situation in Vinay Tyagi's case was also very different as that was a case of discharge while in the present case the trial has been concluded.
5. It is further pertinent to mention here that these grounds were raised by the defence before the trial court as well but rejected in para 48 of the trial court judgment by holding that being the trial court, its duty was to determine who the culprits were, who had committed the murder and it would not go into the legality and propriety of the discharge order. This view is absolutely correct as the trial court has to decide on the guilt of the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 225 accused on the basis of the evidence adduced and such technical objections could not and cannot be permitted to come in the way of doing substantive justice.
6. It is being further sought to be argued by the A1 that although the P.W. 61 took over the investigation of the case only on 23.10.1998 but on the same day he sent requests to obtain details regarding the election and criminal antecedents of A1. Motive is therefore being attributed that the CBI wanted to implicate A1 from the very beginning. It is pertinent to mention here that true it is that the state police did hardly any investigation and therefore there might or might not have been any material against A1 thus far but this would not imply that the CBI should also be equally lax in its investigations. A1 was admittedly an accused when the CBI took over and if the PW 61 tried to obtain details of A1, immediately after starting investigation, no fault could be found with it.
174. Therefore, in consideration of entire facts and circumstances of the case as well as the time when the crime was perpetrated when the terror of appellants was writ large especially in reference with Purnea, small inconsistencies in the evidence / case of the prosecution cannot be made a big issue. The Court has to consider the ground realities prevalent in the State of Bihar at that time. The Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 226 investigation by the local police was not above board in a high profile case such as the present one. As such in consideration of the evidence of prosecution witnesses, coupled with the confession of accused Rajan Tiwary, the test identification parade, the conduct of the accused persons during and after the incident and the exhibits on record, no flaw can be attributed to the case of prosecution and the conviction of accused persons deserves to be sustained.
Findings :
175. Having noted the prosecution case, evidence adduced together with arguments of the counsel for the parties, this Court proceed to consider the correctness or otherwise of the impugned judgment holding the appellants guilty of hatching conspiracy to eliminate Ajit Sarkar, which was executed by the appellants and two others on 14.6.1998 and to undergo rigorous imprisonment for life. Prosecution case of K. Hat P.S. Case No. 230/98 dated 14.6.1998 is set out in the fardbeyan of Kalyan Chandra Sarkar, P.W. 8, Ext. 27 recorded by Sri A.K. Jha, P.W. 56 Circle Inspector, Sadar Purnea at the residence of the deceased Ajit Sarkar on 14.6.1998 at 17.45 hours. The informant had come to the house of his brother Ajit Sarkar on 14.6.1998 in the morning between 7-8 hours. The informant along with two comrades of his brother Madhusudan Rishi, P.W. 9 and Lal Bahadur Oraon, P.W. 10 was returning to his village Rani Patra on the same day at about 4.30 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 227 P.M. The informant and two comrades had come ahead of Kali Flour Mill, they saw a motorcycle parked on the road and two persons (1) Jawahar Yadav and (2) Abdul Sattar were standing near the motorcycle. Abdul Sattar signalled the car of his brother Ajit Sarkar coming from opposite direction to stop. No sooner the car stopped (3) Diwakar Chaudhary (4) Pappu Dev came on motorcycle from the front (5) Bipin Singh and 6-7 others variously armed also came in a car and resorted to indiscriminate firing. The two persons who were first seen standing near the motorcycle also fired from rifle. Informant, P.W. 8 and the two comrades, P.Ws. 9 and 10 raised alarm but the assailants managed to escape. Informant and the two comrades came near the car and saw his brother Ajit Sarkar, Asfaq Alam of Mahmadia Estate and driver Hirendra Sharma dead, Bodyguard Ramesh Oraon, P.W. 25 seriously injured. The fardbeyan was scribed by Inspector A.K. Jha, P.W. 56 and signed by informant, P.W. 8, Lal Bahadur Oraon, P.W. 10 and Bilin Chandra Sarkar another brother of the deceased Ajit Sarkar. Having scribed the fardbeyan Inspector A.K. Jha, P.W. 56 under instruction from S.P., Purnea took up the investigation, inspected the place of occurrence, seized three empty cartridges of A.K. 47 vide seizure list, Ext. 26. The inquest report of the three dead bodies was also prepared by A.K. Jha, P.W. 56 vide Exts. Y, Y/1 and Y/2. Injured Bodyguard Ramesh Oraon, P.W. 25 was shifted to the hospital and examined by Dr. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 228 R.D. Raman, P.W. 15 vide injury report, Ext. 24. In the night between 14-15.6.1998 further statement of the informant, P.W. 8 and the statement of two comrades Madhusudan Rishi and Lal Bahadur Oraon, P.Ws. 9 and 10 was recorded reiterating the contents of the fardbeyan, Ext. 27. In the same night raid was conducted in the house of the accused named in the fardbeyan but none was found at their residence. Post mortem of the three dead bodies was, however, delayed until the arrival of Sri Lalu Prasad Yadav as there was public outcry after the incident and was conducted on 15.6.1998 by Dr. B.K. Sinha, P.W. 32 vide Exts. 13, 13/1, 13/2. Kalyan Chandra Sarkar, P.W. 8 furnished the alias name of Bipin Singh accused no. 5 of K. Hat P.S. Case No. 230/98 on 22.6.1998 to the I.O. of the said case, P.W. 56 along with his address, whereafter Bipin Singh @ Bipin Chaudhary was arrested and remanded to judicial custody on 23.6.1998. Smt. Madhvi Bose (Sarkar) wife of the deceased Ajit Sarkar made a written request to Hon'ble the Chief Minister, Bihar on 1.7.1998 to transfer the investigation of K. Hat P.S. Case No. 230/98 to C.B.I. On 19.7.1998 Smt. Madhvi Sarkar filed application under Section 452 Cr.P.C. before Chief Judicial Magistrate, Purnea requesting for release of the Ambassador Car, which was allowed under order dated 25.7.1998 and the car was handed over to Smt. Madhvi Sarkar. While the investigation of K. Hat P.S. Case No. 230/98 continued the State Government issued notification dated Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 229 11.8.1998 under Section 6 of the Delhi Special Police Establishment Act, 1946, Ext. 3 granting its consent for investigation of K. Hat P.S. Case No. 230/98 by the C.B.I. Before consideration of the consent given by the State Government under notification dated 11.8.1998 and issue of notification by the Government of India entrusting investigation of K. Hat P.S. Case No. 230/98 to the C.B.I. Purnea district police recorded on 12.8.1998 the statement of one Sanjay Rai under Section 164 Cr.P.C. and as Sanjay Rai corroborated the contents of the fardbeyan including further statement of the informant, P.W. 8 and the statement of the two comrades, P.Ws. 9 and 10 submitted charge sheet no. 210 dated 20.9.1998 in the court of Chief Judicial Magistrate, Purna finding the accusation true against accused no. 5 Bipin Singh @ Bipin Chaudhary the arrested accused and four others i.e. Jawahar Yadav, Abdul Sattar, Diwakar Chaudhary and Pappu Dev named in the fardbeyan showing them as absconders. From perusal of the charge sheet submitted by Purnea police, it is apparent that the investigation continued against the other suspects named by Sanjay Rai in his statement recorded under Section 164 Cr.P.C. including the three appellants herein. Chief Judicial Magistrate, Purnea under order dated 23.9.1998 having perused the charge sheet dated 20.9.1998 took cognizance of the offences found true by Purnea police and summoned the accused sent up for trial i.e. Bipin Singh, four absconders and kept pending the supplementary Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 230 investigation against the 11 persons, the three appellants (4) Harish Chaudhary (5) Amar Yadav (6) Prabhat Yadav (7) Pawan Yadav (8) Pankaj Yadav (9) Santosh Yadav (10) Raju Yadav and (11) Manoj Yadav. Government of India issued notification dated 28.9.1998, Ext. 42 entrusting investigation of K. Hat P.S. Case No. 230/98 to the C.B.I. C.B.I. having taken over the investigation of K. Hat P.S. Case No. 230/98 on 12.10.1998 for administrative convenience registered first information no. RC 12(S)/98-SIC-IV/New Delhi, Ext. 37/1 incorporating the contents of the fardbeyan of K. Hat P.S. Case No. 230/98. After registration of RC 12 (S)/ 98-SIC-IV/ New Delhi investigation of the said case was entrusted to Sri N. S. Kharayat, Dy. S.P. C.B.I, P.W. 61 and Inspector M.L. Meena, P.W. 57. The investigating team reached Purnea on 21/22.10.1998 for conducting further investigation and called upon the District Magistrate, Superintendent of Police, Purnea as also the I.O. of K. Hat P.S. Case No. 230/98, P.W. 56 with a request to P.W. 56 to hand over the case records, which was duly handed over by P.W. 56 to P.W. 61 on 23.10.1998. Having perused the investigation records of K. Hat P.S. Case No. 230/98 P.W. 61 recorded the statement of Ravindra Nath Singh, Kalyan Chandra Sarkar, Madhusudan Rishi and Lal Bahadur Oraon, P.Ws. 7, 8, 9 and 10 on 25.10.1998, 24.10.1998, 29.10.1998 and 28.10.1998 respectively. In the statement recorded by the I.O. of C.B.I., P.W. 61, Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 231 P.W. 8 disowned his statement recorded on 14.6.1998 at 5.45 P.M. on the basis of which fardebyan, Ext. 27 was recorded by A.K. Jha, P.W.
56. He also disowned his re-statement made under Section 161 Cr.P.C. before A.K. Jha during the night between 14-15.6.1998. In the statement made before the I.O. of C.B.I P.W. 8 claimed that while he reached ahead of Kali Flour Mill near culvert along with P.Ws. 9 and 10 he saw Ajit Sarkar coming in his white Ambassador Car from a distance of 100- 150 yards. He further claimed that a red bullet motorcycle with two occupants intercepted the car followed by another black Yamaha motorcycle also with two occupants stopped on the right side of the car. The pillion rider of the red bullet motorcycle shot at the driver of the car. The driver of red bullet motorcycle kept the motorcycle in start position. The pillion rider of black Yamaha motorcycle resorted to indiscriminate firing on the person of Ajit Sarkar with a weapon which looked like A.K. 47. The accused driving Yamaha motorcycle was firing shots from a small weapon. According to P.W. 8 accused persons riding the two motorcycles killed the driver of the car Hirendra Sharma, Ajit Sarkar and Asfaq Alam sitting on the rear seat of the car and injured Ramesh Oran Bodyguard, P.W. 25 sitting on the front next to the driver. According to P.W. 8 after the occurrence many people gathered at the place of occurrence. The dead bodies and the injured were taken to hospital in Ambulance. The dead body of Ajit Sarkar was brought to his Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 232 residence in the night of 14.6.1998. He further claimed before the I.O. C.B.I. that local police arrived next day on 15.6.1998 between 10-11 A.M. to enquire from him about the incident. P.W. 8 claimed before the I.O. C.B.I. that he did not make any statement before the local police but had given the local police at their request blank paper with his signature to the police officer who had come to take his statement indicating 14.6.1998 as the date beneath his signature on the blank paper. P.Ws. 9 and 10 stated before the I.O. C.B.I. that they had come to the residence of Ajit Sarkar on 14.6.1998 at about 4 P.M. as Sri Sarkar had called them for providing hand pump but they could not meet Sri Sarkar. P.W. 8 informed P.Ws. 9, 10 that Sri Sarkar has gone to village Tharhara for panchayati then the three decided to return to their village Rani Patra. While returning P.Ws. 8 to 10 having come ahead of Kali Flour Mill near culvert saw white Ambassador car of the deceased Ajit Sarkar followed by red bullet motorcycle driven by appellant Anil Yadav and Harish Chaudhary sitting as pillion rider. They also saw a black Yamaha motorcycle driven by Amar Yadav over which Rajan Tiwary was the pillion rider. The black Yamaha motorcycle stopped on the right side of the car of the deceased Ajit Sarkar. Anil Yadav kept the red bullet motorcycle in start position. The other three i.e. the driver of black Yamaha motorcycle and the pillion riders of red bullet and Yamaha motorcycle resorted to indiscriminate firing killing Hirendra Sharma the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 233 driver of the car, Ajit Sarkar and Asfaq Alam sitting on the rear seat of the car and also inflicted grievous injury on the person of the Bodyguard Ramesh Oraon, P.W. 25 sitting in the front next to the driver. It would appear from the statement of P.Ws. 8 to 10 made before the I.O. C.B.I. that they gave a consistent description of an unknown assailant who was later identified as Rajan Tiwary upon arrest and consequent disclosure made by him in Delhi and Purnea. Having recorded the statement of the eye witnesses investigators of C.B.I. conducted further investigation and obtained report dated 23.12.1998, Ext. 9 with regard to three fired cartridges recovered from the spot by P.W. 56. From perusal of report, it appears that the shots were fired from single 7.62 MM assault rifle. Investigators of C.B.I. under letter dated 5.1.1999 obtained information from the General Manager (Vigilance) M.T.N.L., New Delhi about the name of the subscriber of telephone nos. 3730767 and 3736358 including the print out of the calls made and received by those numbers during the period between 14.4.1998-31.12.1998. Call details of the aforesaid two telephone numbers was submitted by P.W. 12 on 15.1.1999 vide Exts. 3/4, 3/5. Delhi police arrested Rajan Tiwary on 12.2.1999 in connection with R.K. Puram P.S. Case No. 122/99 registered for the offence under Section 25 of the Arms Act. After arrest Rajan Tiwary made disclosure pertaining to K. Hat P.S. Case No. 230/98. Rajan Tiwary was produced on 13.2.1999 in the court of Sri Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 234 K.S. Mohi, Metropolitan Magistrate, Patiala House in connection with R.K. Puram P.S. Case No. 122/99 vide remand application dated 13.2.1999, Ext. F/4 on the basis of which he was remanded to judicial custody until 26.2.1999. P.W. 61 obtained custody of Rajan Tiwary on 13.2.1999 from S.I. Palvinder Singh for a period of 10 days until 23.2.1999 as would appear from the following endorsement ―received accused in muffled condition with warrant‖ made by P.W. 61 in the margin of petition dated 13.2.1999, Ext. F filed by S.I. Palvinder Singh on the basis of which Metropolitan Magistrate remanded the accused Rajan Tiwary to judicial custody till 26.2.1999. During the period between 13-23.2.1999 Rajan Tiwary was subjected to sustained interrogation by moving him from Delhi to Purnea and back. During the period of sustained interrogation search warrant was also obtained on 17.2.1999 to search the house of the appellants. From Delhi house of appellant Rajesh Ranjan @ Pappu Yadav one photograph, material Ext.VII was seized vide seizure memo, Ext. 39 in which appellant Rajesh Ranjan @ Pappu Yadav, his wife and child are seen with appellant Rajan Tiwary. Appellant Anil Yadav was called to C.B.I. Camp Office at Purnea on 17.2.1999, arrested and produced before the Chief Judicial Magistrate, Purnea on 18.2.1999 who remanded him to C.B.I. custody for ten days under order dated 18.2.1999 passed in K. Hat P.S. Case No. 230/98. Anil Yadav also made disclosures on the basis of Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 235 which red bullet motorcycle was recovered from his house. He was again produced before the Chief Judicial Magistrate, Purnea on 28.2.1999 in K. Hat P.S. Case No. 230/98 as suspect. Call details of Katihar P.C.O. booth no. 34679 was obtained under memo dated 18.2.1999, Ext. 3. Appellant Rajan Tiwary also made disclosures on 18/17.2.1999 leading to recoveries vide Exts. 1/8, 1/9, 1/10. Rajan Tiwary was produced before the Chief Metropolitan Magistrate, Delhi on 22.2.1999 and a petition Ext. 41 was filed to examine Rajan Tiwary under Section 164 Cr.P.C. Chief Metropolitan Magistrate, Delhi endorsed the said petition to Sri G.S. Saini, Metropolitan Magistrate, P.W. 59. Appellant Rajan Tiwary with muffled face was thereafter produced by the I.O. C.B.I., P.W. 61 before Sri G.S. Saini at 12.30 P.M. for recording his 164 Cr.P.C. statement. Sri Saini after observing the safeguards provided under Sub-clause (2) of Section 164 proceeded to record the confessional statement of Rajan Tiwary at 1.15 P.M. Having recorded the confessional statement of Rajan Tiwary on 22.2.1999 Sri G.S. Saini, P.W. 59 gave his custody to I.O. C.B.I., P.W. 61, who again produced Rajan Tiwary before Chief Metropolitan Magistrate, Delhi on 23.2.1999 when he was remanded to judicial custody in Tihar Jail. After being lodged in Tihar on 23.2.1999 Rajan Tiwary filed undated application addressed to Chief Metropolitan Magistrate, Delhi informing the Chief Metropolitan Magistrate, Delhi that he has been implicated in Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 236 a false case by the crime branch of Delhi police. Perusal of undated application further indicates that while Rajan Tiwary was in C.B.I. custody he was subjected to extensive beating, torture and other third degree methods as also forced to sign various blank papers, written document and false statements. He was also not allowed to meet any one including press person(s). Having come to jail custody he has learnt from others about his statement which the police got published in newspaper, which is wholly false. Aforesaid undated application of Rajan Tiwary was forwarded to Chief Metropolitan Magistrate, Delhi by the Deputy Superintendent, Central Jail No. 5, Tihar, New Delhi under letter no. 181 dated 1.3.1999. The validity of the safeguards observed by Sri G.S. Saini before recording the confessional statement of Rajan Tiwary including his conduct of handing over the custody of Rajan Tiwary to the I.O. of C.B.I., P.W. 61 after recording his 164 Cr.P.C. statement shall be examined in this judgment a little later. Black Yamaha motorcycle bearing Registration No. WB72-7109 was seized on 25.2.1999 from Jogbani P.S. vide Ext. 33/2 as the said motorcycle was recovered by Jogbani P.S. on 4.7.1998 in abandoned condition. Two steel core portions of A.K. 47 bullet were recovered under memo dated 3.3.1999, Ext. 10 from Ambassador car of the deceased parked in the garage of Nitu da. Rajan Tiwary was again produced before the Chief Metropolitan Magistrate, Delhi on 9.3.1999 when Chief Metropolitan Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 237 Magistrate, Delhi directed the Superintendent, Central Jail, Tihar to arrange for transfer of Rajan Tiwary to concerned jail for his appearance before the Special Judicial Magistrate, C.B.I. Patna on or before 23.3.1999. Rajan Tiwary was transferred to Adarsh Central Jail, Beur, Patna and produced before the Special Judicial Magistrate, C.B.I. Patna on 22.3.1999 and remanded to judicial custody. The two steel core portions recovered from the car of the deceased on 3.3.1999 were subjected to examination. Sri Rup Singh, P.W. 33 under report dated 22.3.1999, Ext. 9/1 reported that the aforesaid two steel core portions were fired from 7.62 MM assault rifle. Call records of telephone nos. 23150, 23929 and 23446 installed at Purnea residence of Rajesh Ranjan @ Pappu Yadav was received by the C.B.I. on 26.3.1999 under the signature of S.Z. Hassan, P.W. 11. Rup Singh Scientific Officer, P.W. 33 under report no. 171 dated 1.4.1999, Ext. 9/2 reported that multiple holes found in the Ambassador car of the deceased was caused by passage of 7.62 MM bullet. Rajan Tiwary was subjected to Test Identification Parade in Adarsh Central Jail, Beur, Patna on 1.5.1999 conducted by Sri Dharmsheel Srivastava, Judicial Magistrate, Ist Class, P.W. 17. In the said Test Identification Parade P.W. 8 identified the suspect Rajan Tiwary in 5th attempt, as would appear from the memorandum dated 3.5.1999, Ext. 7 prepared by the T.I. Magistrate, P.W. 17. I.O. C.B.I., P.W. 61 relying on the statement of the eye Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 238 witnesses as also the other witnesses including identification made by P.W. 8 submitted charge sheet no. 01 dated 10.5.1999 before the Special Magistrate, C.B.I., Patna finding the accusation made against accused persons named in column nos. 1 and 2 of the report dated 10.5.1999 to be true. In paragraph 13 of the report dated 10.5.1999 it is further observed that local police had filed charge sheet no. 210/98 dated 19.9.1998 (mistake for 20.9.1998) in the court of Chief Judicial Magistrate, Purnea against accused Bipin Singh @ Bipin Chaudhary and four others, namely, Jawahar Yadav, Abdul Sattar, Diwakar Chaudhary and Pappu Dev of Saharsa with intimation to the court that investigation against others including the appellants herein is in progress but the accused persons named in the charge sheet filed by the local police have not been found involved in the commission of this crime. It is further stated in the report dated 10.5.1999 that the record concerning the charge sheet submitted by the local police before Chief Judicial Magistrate, Purnea may be summoned and the accused persons named in the charge sheet submitted by the local police be discharged from the case. Another T.I.P. was arranged on 12.5.1999 which was conducted by Sri Ravindra Patwari, Judicial Magistrate, Ist Class, P.W. 13 in which P.Ws. 9 and 10 identified Rajan Tiwary vide T.I. Chart, Ext. 6. Appellant Rajesh Ranjan @ Pappu Yadav was arrested on 23.5.1999. C.B.I. Magistrate in the light of the charge sheet dated 10.5.1999 took cognizance of the offence Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 239 under order dated 16.7.1999 and summoned the accused sent up for trial by the C.B.I. Supplementary charge sheet no. 04 dated 19.8.1999 was submitted in continuation of the earlier charge sheet dated 10.5.1999 showing accused Rajesh Ranjan @ Pappu Yadav in judicial custody and two others as absconders. Having filed charge sheet, supplementary charge sheet I.O. C.B.I., P.W. 61 also filed separate application dated 15.9.1999 before the Special Magistrate C.B.I., Patna for discharge of accused sent up for trial by the Purnea police under charge sheet no. 210 dated 20.9.1998. Special Magistrate C.B.I, Patna under order dated 15.9.1999 not only discharged the accused sent up for trial by the Purnea police under charge sheet dated 20.9.1998 but also committed the case of the three appellants sent up for trial by I.O. C.B.I. under charge sheet dated 10.5.1999 and supplementary charge sheet dated 19.8.1999. The validity of the order dated 15.9.1999 passed by the Special Magistrate C.B.I., Patna discharging the accused sent up for trial by the Bihar police shall also be examined a little later. Additional Sessions Judge-XI cum C.B.I. Court, Patna under order dated 19.8.2000 framed common charges separately against the appellants which has been indicated in paragraph 7 at page 21 above. In support of the prosecution case C.B.I. examined 61 witnesses including the three eye witnesses, P.Ws. 8 to 10 as indicated in paragraph 8 above. Besides the oral evidence C.B.I. also relied on the documentary evidence as also materials exhibits which has Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 240 also been indicated in paragraphs 9 and 10 above.
Ocular and documentary evidence :
176. Success of the prosecution case will depend upon the truthfulness or otherwise of the eye witnesses i.e. P.Ws. 8 to 10.
Aforesaid eye witnesses were first examined by the I.O. of local police A.K. Jha, P.W. 56 on 14.6.1998 and during the night between 14- 15.6.1998. Before P.W. 56 the eye witnesses are said to have implicated the accused persons named in the fardbeyan, Ext. 27, namely, Bipin Singh @ Bipin Chaudhary and four others i.e. Jawahar Yadav, Md. Sattar, Diwakar Chaudhary and Pappu Dev and sent up for trial under charge sheet no. 210/98 dated 20.9.1998 filed by the Purnea police in the court of Chief Judicial Magistrate, Purnea. These eye witnesses were examined by the I.O. C.B.I., P.W. 61 between 25 to 29.10.1998. In the statement recorded before P.W. 61 the eye witnesses disowned their earlier statement recorded on 14.6.1998 and during the night between 14-15.6.1998 by the I.O. of Purnea police, P.W. 56 and implicated these three appellants and the two absconders named in the charge sheet, supplementary charge sheet dated 10.5.1999, 19.8.1999 filed by the I.O. C.B.I., P.W. 61. P.W. 61 having noticed that the eye witnesses have completely changed the identity of the accused as given in the fardbeyan, Ext. 27 and the statement recorded by P.W. 56 during the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 241 night between 14-15.6.1998 and the statement given before him, confronted the eye witnesses with their earlier statement made on 14.6.1998 and during the night between 14-15.6.1998. The eye witnesses, however, maintained before P.W. 61 that whatever they are saying before him they have already stated before K. Hat police. In the court the eye witnesses further changed their stand. P.W. 8 stated in paragraph 1 that he never recorded his fardbeyan as Purnea police arrived on 15.6.1998 between 10-11 A.M. to enquire from him about the occurrence. P.W. 8 refused to make any statement before the officer who had come to enquire from him about the occurrence but on the instruction of the officer gave the officer blank paper with his signature indicating 14.6.1998 as the date beneath his signature. P.W. 8 identified his signature over the fardbeyan, which was marked as Ext. 1/4. P.W. 8 further reiterated in paragraph 7 of his cross examination that he had not given any statement before the police as an eye witness of the occurrence either on 14.6.1998 or on 15.6.1998 but had only put his signature on 15.6.1998. In the same paragraph he has further stated that he had not shown the place of occurrence to the police officials. In paragraph 11, P.W. 8 stated that he had not shown the place from where he had seen the occurrence to any one. In the same paragraph P.W. 8 further stated that he had given the first statement to the C.B.I. The two witnesses who accompanied him at the time of occurrence also did not Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 242 record their statement before the local police. In the same paragraph he further stated that on the date of occurrence wife and son of the deceased Ajit Sarkar were available in the house but he did not inform them about the occurrence. P.W. 9 also in paragraph 5 of his cross-examination accepted that he had given his first statement before the C.B.I. after four months of the occurrence. In paragraph 6 of his cross examination P.W. 9 further accepted that until he made statement before the I.O. of C.B.I. he had not disclosed to any one, except his party workers that he is an eye witness of the occurrence. P.W. 10 in paragraph 6 of his cross examination also accepted that he had not disclosed any information about the occurrence to the local police. In paragraph 7 he further stated that he had not given any statement about the occurrence to the local police. Aforesaid stand of the three eye witnesses is contrary to the evidence of the I.O. of local police, P.W. 56 who has asserted in his evidence that P.W. 8 recorded the fardbeyan giving the manner of occurrence as also the name of the five accused persons i.e. Bipin Singh @ Bipin Chaudhary, Jawahar Yadav, Abdul Sattar, Diwakar Chaudhary and Pappu Dev incorporated in the fardbeyan. He further stated that P.W. 8 further reiterated the version recorded by him in the fardbeyan in his further statement which was recorded during the night between 14- 15.6.1998. He also stated that P.Ws. 9 and 10 in their statement under Section 161 Cr.P.C. recorded during the night between 14-15.6.1998 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 243 also reiterated the version of the occurrence given by P.W. 8 including the name of the accused mentioned in the fardbeyan and the further statement of P.W. 8. I.O. C.B.I., P.W. 61 having noticed the contradiction in the statement of the three eye witnesses given before him and the statement given before the I.O. Purnea police, P.W. 56 confronted P.Ws. 8 to 10 with their previous statement recorded before the I.O. of local police, P.W. 56. Eye witnesses, however, maintained that whatever they had stated before the I.O. C.B.I. they had already stated before the K.Hat police. In this regard reference is required to be made to the statement of the I.O. C.B.I., P.W. 61 in paragraph 237, 238 of his deposition, which is incorporated hereinbelow for ready reference :
237. Before recording the evidence of K.C. Sarkar, Madhusudan Rishi and Lal Bahadur Oraon, I tried and find out that the statement of those three witnesses recorded by K. Hat Police. I had gone through their earlier statement recorded by K. Hat police before recording their statement.
238. I confronted the witnesses at the time of recording their evidence from earlier evidence. They have stated that whatever they are saying before me, they have already stated before K. Hat Police.
It would, thus, appear that the three eye witnesses of the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 244 occurrence are not only contradicting themselves about the identity of the assailants before the I.O. of local police P.W. 56 and the I.O. of C.B.I., P.W. 61 but are also contradicting themselves on the point of recording first statement. Before I.O. C.B.I. they stated that they recorded the same statement before the I.O. of local police which they have recorded before him. In court the eye witnesses i.e. P.Ws. 8 to 10 stated that they had not recorded fardbeyan, further statement and the statement before the I.O. of local police and made their first statement before the I.O. of C.B.I. P.W. 8 further stated in court that on 15.6.1998 between 10-11 A.M. police officer from K. Hat P.S. had approached him to enquire about the occurrence but he refused to make any statement, however, at the request of the police officer gave him blank paper with signature indicating 14.6.1998 as the date beneath the signature. Aforesaid two material contradictions in the deposition of the eye witnesses is required to be considered in the light of the evidence of I.O. of local police, P.W. 56. The evidence of P.W. 56 has not been challenged by the prosecution nor has any suggestion been made to him that he fabricated the fardbeyan and misconducted the investigation. On the contrary P.W. 8 having admitted his signature on the fardbeyan, the evidence of P.W. 56 is required to be accepted. P.W. 8 and the two comrades, P.Ws. 9 and 10 when confronted by the I.O. C.B.I., P.W. 61 admitted before him that they had given the same statement to the I.O. of Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 245 local police which they are giving before him. P.W. 8 never made complaint before any authority that his signature was taken by P.W. 56 on blank paper on 15.6.1998 with date 14.6.1998 beneath his signature. The contents of the fardbeyan are detailed and it is not possible to accept the criticism that the I.O. of local police, P.W. 56 imagined those details and prepared/fabricated Ext. 27. Reference in this connection is made to the judgment of the Supreme Court in the case of Sarwan Singh and Others Vs. State of Punjab, (1976) 4 SCC 369, paragraph 8 at page
375. Judgment of the Supreme Court in the case of Kanti Kumari Roy Vs. Suresh Kumar Roy and others, AIR 1990 Supreme Court 1631, paragraph 6 and Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh, (1991) 3 SCC 627, paragraph 6 has been relied upon by the counsel for the appellant to substantiate the submission that P.W. 8 being a retired Sergeant Driver of the Railway Protection Force cannot be believed that he handed over blank paper with his signature to the I.O. of local police, P.W. 56 and did not disclose such fact even to the I.O. of C.B.I., P.W. 61 till he came to the court to give evidence that he gave blank paper with his signature to the I.O. of State police, P.W. 56. P.W. 9 is also not to be relied as he is member of C.P.M. District Committee and did not disclose to the local police that he is an eye witness but disclosed such fact after four months of the occurrence to the C.B.I. He is also not to be relied as he knew Anil Yadav, Harish Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 246 Chaudhary, Amar Yadav by face and name prior to the occurrence but his failure to disclose their names to P.W. 8 renders his claim doubtful. He also stands extensively contradicted in the light of his case diary statement recorded by P.W. 56. P.W. 9 claimed that he informed his party worker about identity of the assailant but not a single party worker has been examined to corroborate him. On the contrary I.O. C.B.I., P.W. 61 stated that he could not locate any party worker to whom P.W. 9 had disclosed the name of the assailants. Aforesaid false evidence given by P.W. 9 shakes the foundation of the prosecution case. P.W. 9 is also not to be relied as he stands contradicted by injured P.W. 25 as according to P.W. 9 injured was sent to hospital in Ambulance, which is incorrect in view of the evidence of the injured that he went to the hospital in tempo. P.W. 9 having not disclosed to the local police soon after the incident that he is an eye witness no reliance can be placed on his evidence. Evidence of P.W. 10 is also not fit to be relied as he having counter- signed the fardbeyan, Ext. 27 on 14.6.1998 denied such fact. P.W. 10 also knew Anil Yadav, Amar Yadav and Harish Chaudhary from before but did not disclose their names to P.W. 8 vide paragraph 10 of the evidence of P.W. 8. He also did not disclose the names of the assailants to the wife of the deceased vide paragraph 10 of the evidence of P.W.
10. He also did not inform local police that he is an eye witness vide paragraphs 6, 7 of his evidence. He disclosed the fact that he is an eye Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 247 witness to the occurrence one month after the occurrence vide paragraph 2 of his evidence. In view of the aforesaid material contradictions in the statement and deposition of the eye witnesses, the submission of the counsel for the appellants that P.Ws. 8 to 10 cannot be relied as they are residents of village Rani Patra, which is seven kilometers away from the place of occurrence and reached the place of occurrence after 45 minutes of the occurrence as per the evidence of Ranu Kumar Singh, P.W. 19 paragraph 8 and injured Ramesh Oraon, P.W. 25 paragraphs 8 to 10 that he remained at the place of occurrence for about half an hour after the occurrence but the eye witnesses were not seen by him, is required to be appreciated. Injured P.W. 25 further stated in paragraph 2 that Subhash Singh was first to arrive at the place of occurrence and that Subhash Singh rescued him from the car. The evidence of P.Ws. 19, 25 contradicts the eye witnesses that they were the first to reach the place of occurrence. Sunil Kumar Singh, P.W. 14 has also corroborated the injured Ramesh Oraon about the presence of Subhash Singh and has stated that it was Subhash Singh who gave information at the house of the deceased Ajit Sarkar about incident at 5 P.M. The evidence of P.Ws. 19, 25, 14 having not been challenged by the prosecution their evidence is binding on the prosecution. Reference in this connection is made to the judgment of the Supreme Court in the case of Javed Masood and Another Vs. State of Rajasthan, AIR 2010 Supreme Court 979, Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 248 paragraphs 9, 10, 13 to 16. Placing reliance over the judgment in the case of Javed Masood (supra) it is observed that in view of the evidence of P.Ws. 19, 25, 14 which has not been challenged by the prosecution the presence of the eye witnesses P.Ws. 8 to 10 at the place, time of occurrence becomes doubtful. The examination in chief of Ravindra Nath Singh, Subodh Yadav, P.Ws. 7, 20 in paragraph 1 indicate that on 8.6.1998 P.W. 7 had come to Purnea Bar Library to meet a friend Advocate where he learnt from his old acquaintance Subodh Yadav, P.W. 20 that Rajesh Ranjan @ Pappu Yadav had called Rajan Tiwary to Purnea who is about to kill M.L.A. Dilip Yadav and Ajit Sarkar as P.W. 20 had given to him a written piece of paper in which it was so written. Aforesaid evidence of P.Ws. 7, 20 cannot be accepted for the failure of P.Ws. 7, 20 to take any step in the matter including lodging of the F.I.R. against Rajesh Ranjan @ Pappu Yadav and Rajan Tiwary. Having not lodged F.I.R. strong inference of falsehood of the said statement and existence of piece of paper dated 8.6.1998 has to be drawn and consequential benefit given to the appellants. The evidence of Domai Thakur P.W. 15 and Shambhoo Prasad Mehta, P.W. 16 that they had seen Anil Yadav, Harish Chaudhary, Amar Yadav and one unknown in Harda Market in the afternoon of 14.6.1998 taking rounds on the market road over red bullet and black motorcycle and thereafter followed the car of the deceased is also not worthy of credence in view of the evidence of Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 249 I.O. C.B.I., P.W. 61 vide paragraphs 109, 289 that P.Ws. 15, 16 had not made such statement before him. Reliance placed by the prosecution on telephone print out Ext. 3 series to establish the conspiracy hatched by the appellant for elimination of Ajit Sarkar is also misplaced. Perusal of Ext. 3 series indicates that call of long duration was made in the morning of 14.6.1998 from Delhi residence of appellant Rajesh Ranjan @ Pappu Yadav to his Purnea residence. The print out further indicates that on the date of occurrence at 18 hours 16 minute 48 second call of 42 second duration and at 18 hours 18 minute 16 second call of 32 second duration was made from Katihar P.C.O. telephone no. 34679 to Delhi residence of appellant Rajesh Ranjan @ Pappu Yadav on telephone no. 3730767 subscribed in his name and on telephone no. 3736358 subscribed in the name of his wife. On the same day at 20 hours 08 minute 41 second call from the same P.C.O. of one minute 26 second duration was made to Gorakhpur residence of appellant Rajan Tiwary on telephone no. 0551322035. From the print out Ext. 3 series, the evidence of Ramashray Rajak, P.W. 6 officer of the telephone company who issued print out and Om Prakash Ramnani, P.W. 52 husband of the telephone booth owner, it is impossible to identify either the caller or the called or the contents of their conversation, as such, it is not safe to rely on the print out, Ext. 3 series in support of the prosecution case. In this connection, it may be stated here that this Court categorically asked the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 250 counsel for the C.B.I. to indicate the material on the basis of which it is concluded by C.B.I. that telephone no. 0551322035 is the telephone subscribed by appellant Rajan Tiwary at his Gorakhpur residence. Counsel could not refer to any material, as such, it is difficult for this Court to accept the submission that Rajan Tiwary made call of one minute 26 second duration from Katihar P.C.O. booth no. 34679 to his Gorakhpur residence on 14.6.1998 at 20 hours 08 minute 41 second. Recovery of the two steel core portions from the car of the deceased on 3.3.1999 and the report of Rup Singh, P.W. 33 dated 22.3.1999, Ext. 9/1 that the aforesaid two steel core portions were fired from 7.62 MM assault rifle cannot be relied upon as possibility of plantation of the two steel core portions in the car of the deceased cannot be ruled out after its release by the Chief Judicial Magistrate, Purnea under order dated 25.7.1998 in favour of Madhvi Bose (Sarkar), wife of the deceased, whereafter the car was parked in the garage of Nitu da for repair wherefrom the two steel core portions were recovered on 3.3.1999 i.e. after about 9 months of the occurrence. Photograph, material Ext. VII in which appellant Rajesh Ranjan @ Pappu Yadav his wife and child are seen with appellant Rajan Tiwary is indicative of the association between the two appellants seen in the photograph but association simplicitor does not establish hatching and execution of conspiracy by them and others.
Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 251 Judicial Confession
177. Having considered the merit of the deposition of P.Ws. 7 to 10, 14 to 16, 19, 20 and 25, the documentary evidence, Ext. 3 series, material Ext. VII, I proceed to consider the validity of the judicial confession recorded by Rajan Tiwary on 22.2.1999 before Sri G.S. Saini, Metropolitan Magistrate, New Delhi, P.W. 59. Delhi police arrested Rajan Tiwary on 12.2.1999 in connection with R.K. Puram P.S. Case No. 122/99 registered for the offence under Section 25 of the Arms Act and produced him before Sri K.S. Mohi, Metropolitan Magistrate, Patiala House, Delhi on 13.2.1999 in connection with R.K. Puram P.S. Case No. 122/99 vide remand application dated 13.2.1999 filed by S.I. Palvinder Singh of Special Team, Crime Branch, Delhi, Ext. F/4. Perusal of Ext. F/4 indicates that the Metropolitan Magistrate having considered the contents of the application passed orders for remand of Rajan Tiwary to judicial custody until 26.2.1999. I.O. C.B.I, P.W. 61, however, obtained custody of Rajan Tiwary in muffled condition with warrant, which would appear from endorsement made by P.W. 61 on copy of remand application dated 13.2.1999, Ext. F. Counsel for the parties made lengthy submission about the legality or otherwise of the nature of custody of Rajan Tiwary obtained by I.O. C.B.I. on 13.2.1999. Nature of the custody of Rajan Tiwary obtained by I.O. C.B.I., P.W. 61 on 13.2.1999 shall be considered a little later. P.W. 61 having obtained the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 252 custody of Rajan Tiwary subjected him to sustained interrogation by moving him from Delhi to Purnea and back. Rajan Tiwary is said to have made disclosures on 18/17.2.1999 leading to recoveries vide Exts. 1/8, 1/9, 1/10. Rajan Tiwary having made disclosures was produced before the Chief Metropolitan Magistrate, Delhi on 22.2.1999 and a petition, Ext. 41 was filed to examine Rajan Tiwary under Section 164 Cr.P.C. Chief Metropolitan Magistrate, Delhi endorsed Ext. 41 to Sri G.S. Saini, Metropolitan Magistrate, P.W. 59 vide endorsement Ext. 36 made over Ext. 41. Ext. 41 was considered by Sri Saini on the same day i.e. 22.2.1999 and Sri Saini directed over Ext. 41 itself that accused be produced before him at 12.30 P.M. Rajan Tiwary with muffled face was produced by I.O. C.B.I., P.W. 61 before Sri G.S. Saini at 12.30 P.M. who directed P.W. 61 to go out of court and accused be made to sit in court, proceeding be recorded in separate sheet vide endorsement made by Sri Saini, Ext. 36/1 over Ext. 41. From perusal of proceeding in separate sheet maintained by Sri Saini on 22.2.1999 at 12.30 P.M., it appears that application for recording of statement of accused Rajan Tiwary was moved before learned Chief Metropolitan Magistrate and the same was assigned to Sri Saini. Accused Rajan Tiwary with muffled face was produced before Sri Saini. Sri Saini sent all the police persons out of court and the accused was made to sit in his Chamber. He explained to the accused that he is not bound to make his statement. He Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 253 also told Rajan Tiwary that if he makes the statement, it can be used against him as evidence. Rajan Tiwary insisted in making the statement. Sri Saini thereafter gave Rajan Tiwary one hour time to reflect over the matter again. Sri Saini again asked Rajan Tiwary at 1.15 P.M. in his Chamber whether he wants to record his confessional statement. Rajan Tiwary stated that he wants to bring real culprit to book and is making statement voluntarily. Sri Saini again warned Rajan Tiwary that he is not bound to make confessional statement and his statement shall be used as evidence against him but Rajan Tiwary insisted again for making statement. Sri Saini thereafter put following two questions to Rajan Tiwary (1) Why do you want to make confessional statement? Rajan Tiwary answered that he wants to make statement as he wants to improve himself and to disclose the identity of the real culprit. In answer to the second question as to whether he has been pressurized by the police or C.B.I. to make statement, Rajan Tiwary answered that he has not been pressurized by any one to record his statement. Having put the question and recorded the answer of Rajan Tiwary Sri Saini put his own signature on the right hand side of page 2 of the proceeding drawn in separate sheet and obtained signature of Rajan Tiwary on the left hand side of page 2 of the proceeding. Signature of Rajan Tiwary over the proceeding has been marked as Ext. 34. Beneath the signature of Rajan Tiwary, Ext. 34 Sri Saini recorded his satisfaction that Rajan Tiwary is Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 254 making confessional statement voluntarily without any force from any quarter in order to make clean breast and then proceeded to record his statement, which begins from page 3 and concludes at page 6 of the proceeding. At the bottom of the confessional statement at page 6 of the proceeding Sri Saini and Rajan Tiwary again put their signature. Signature of Rajan Tiwary at page 6 is marked as Ext. 34/1. After recording of confessional statement P.W. 61 identified accused Rajan Tiwary and endorsement to that effect is in the left hand margin of page 6 of the proceeding. Beneath the signature of Sri Saini and Rajan Tiwary at page 6 of the proceeding memorandum in terms of Sub-section (4) of Section 164 Cr.P.C. has been recorded by Sri Saini. At page 7 of the proceeding Sri Saini has certified that the above proceeding conducted in his Chamber is the true and correct account of the proceeding and nothing has been added or subtracted therefrom. Having recorded the proceeding Sri Saini directed the office to send the proceedings in sealed cover to the office of learned Chief Metropolitan Magistrate after giving one copy to the I.O. C.B.I., P.W. 61. Having recorded the confession of Rajan Tiwary Sri Saini, P.W. 59 handed over the custody of Rajan Tiwary to I.O. C.B.I., P.W. 61, which is evident from the evidence of P.W. 59, paragraph 17, 29, 32. Aforesaid conduct of Sri Saini, P.W. 59 to hand over the custody of Rajan Tiwary to I.O. C.B.I. after recording his confessional statement is contrary to Rule 7 framed by Delhi High Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 255 Court. From perusal of proceeding recorded in separate sheet, Ext. 35, it does not appear that Sri Saini, P.W. 59 informed Rajan Tiwary that he is a Magistrate. It also does not appear from the proceeding that P.W. 59 put searching questions to Rajan Tiwary about the custody from which he has been produced and the treatment which was given to him during the period of his remand between 13.2.1999-22.2.1999 when he was being moved from Delhi to Purnea and back and is said to have made disclosure statements on 18/17.2.1999 leading to recoveries vide Exts. 1/8, 1/9, 1/10. It only appears from proceeding in separate sheet, Ext. 35 that Rajan Tiwary was insisting to record his confessional statement which is proof of coercion. It also does not appear from the proceeding that while P.W. 59 observed safeguards under Sub-section (2) of Section 164 Cr.P.C. and informed Rajan Tiwary that he is not bound to make confessional statement and if he makes one the confessional statement shall be used against him in evidence, observed safeguard under Sub- section (3) of Section 164 Cr.P.C. which require the Magistrate recording confessional statement to lend assurance to the accused recording confessional statement that if he chooses not to record his confessional statement he shall not be sent back to the custody from which he has been produced. In my opinion, Sri Saini was required to have observed not only the safeguard under Sub-section (2) of Section 164 Cr.P.C. but also Sub-section (3) of Section 164 as both the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 256 safeguards provided in Sub-sections (2), (3) of Section 164 Cr.P.C. are to be read in conjunction for securing the mandate of Articles 20, 21 and 22 of the Constitution of India. Reliance in this connection be placed over the judgment of the Supreme Court in the case of Shivappa Vs. State of Karnataka, (1995) 2 SCC 76 quoted with approval in Ravindra Kumar Pal @ Dara Singh Vs. Republic of India, AIR 2011 SC 1436, paragraphs 30, 31 and Mohammed Ajmal Mohammed Amir Kasab @ Abu Mujahid Vs. State of Maharashtra, (2012) 9 SCC 169.
178. I.O. C.B.I., P.W. 61 obtained custody of Rajan Tiwary on 13.2.1999, after nine days of sustained interrogation leading to disclosure, recoveries on 18/17.2.1999 produced him in the court of Sri Saini on 22.2.1999 at 12.30 P.M. for recording his confessional statement, whereafter Sri Saini allowed Rajan Tiwary 45 minutes time to reflect and proceeded to record his confession at 1.15 P.M. Rajan Tiwary having remained in C.B.I. custody for nine days in which he was kept incommunicado, subjected to sustained interrogation leading to disclosures, recovery on 18/17.2.1999 was granted 45 minutes for reflection. Grant of 45 minutes for reflection in the facts and circumstances of the case, in my opinion, does not appear to be reasonable as 45 minutes is not enough to completely free Rajan Tiwary from the possible influence of the C.B.I. The effective way for securing such freedom from fear of C.B.I. was to send Rajan Tiwary to jail Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 257 custody and to grant him adequate time to consider whether he should make confession at all. In the instant case, Rajan Tiwary after sustained interrogation of nine days was produced by the I.O. of C.B.I., P.W. 61 before P.W. 59 on 22.2.1999 at 12.30 P.M. for recording his confessional statement, whereafter P.W. 59 asked the police official producing Rajan Tiwary to go out of his court and asked Rajan Tiwary to wait in his Chamber where none of the police official remained present. Recording of confession began at 1.15 P.M. on the same day. After recording the confessional statement of Rajan Tiwary the police officer producing Rajan Tiwary i.e. I.O. C.B.I., P.W. 61 was asked to identify Rajan Tiwary and P.W. 61 identified Rajan Tiwary by putting his signature by the side of the signature of Rajan Tiwary, Ext. 34/1. The confessional statement of Rajan Tiwary may not have been recorded in presence of the C.B.I. official i.e. I.O. C.B.I., P.W. 61 who produced him on 22.2.1999 for recording confessional statement. The statement was recorded 45 minutes after production without granting Rajan Tiwary reasonable, sufficient time for reflection, after recording the statement Rajan Tiwary was not only identified by P.W. 61 but his custody was also given to P.W. 61, there cannot be any doubt that the confessional statement of Rajan Tiwary was recorded by P.W. 59 under the shadow of I.O. C.B.I., P.W. 61. Rajan Tiwary was not granted reasonable and sufficient time to relieve himself of the pressure generated by the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 258 investigators of C.B.I. during the period of sustained interrogation between 13.2.1999-22.2.1999 which is evident from the fact that he was insisting before Sri Saini, P.W. 59 to record his confession. Aforesaid finding is being reached in the background of the fact that P.W. 59 did not observe the safeguards required under Sub-section (3) of Section 164 Cr.P.C. as he did not lend assurance to Rajan Tiwary that if he chooses not to record his confessional statement he will not be remanded to C.B.I. custody and shall be sent to judicial custody. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, paragraph 10, Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569, paragraph 390. In the case of Sarwan Singh (Supra) Supreme Court observed that it would be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. In the case of Kartar Singh (supra) Supreme Court upheld the vires of Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 as amended by TADA (Amendment) Act, 1993 providing for recording of confession by a person before a police officer not lower in rank than a Superintendent of Police. The leading judgment in the case of Kartar Singh (supra) was authored by Pandian, J. In paragraphs 262, 263 Pandian, J upheld the vires of the aforesaid Act without indicating the duration of reasonable time which should be Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 259 allowed to the accused person for reflection if he is coming forward to record his confession. K. Ramaswamy, J in his separate judgment placing reliance on the judgment of Sarwan Singh (supra) in paragraph 390 observed ―it is settled law that at least 24 hours should be given to the accused to decide whether or not he should make a confession‖. The submission of the counsel for the C.B.I. that the view of Ramaswamy, J is a minority view does not appear to be correct as in the majority opinion Pandian, J has not indicated the duration of time which should be allowed to an accused for reflection who is coming forward to record his confession. Similarly, reliance placed by the counsel for the C.B.I. over the judgment in the case of Shankaria Vs. State of Rajasthan (supra) to justify reflection time of 45 minutes to Rajan Tiwary is also misconceived. Perusal of judgment in the case of Shankaria (supra) would indicate that Shankaria was produced before learned Magistrate on 12.6.1974 who lodged him in judicial lock up. On 13.6.1974 application was filed before Judicial Magistrate requesting him to record the confessional statement of Shankaria. The Magistrate thereafter ordered that Shankaria be produced from judicial lock up on 14.6.1974 at 7 A.M. for recording his confession. Shankaria was accordingly, produced before the Magistrate for recording his confession on 14.6.1974 at 7 A.M. The Magistrate after putting questions to Shankaria about the voluntary nature of the statement allowed Shankaria some time Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 260 for reflection and proceeded to record his confession from 8.45 A.M. Supreme Court in the background of the fact that Shankaria was sent by the Magistrate to judicial lock up on 12.6.1974 wherefrom he was produced to record his confession on 14.6.1974 at 7 A.M. and his confession was recorded from 8.45 A.M. onwards rejected the submission of Shankaria that he was not granted sufficient time for reflection. In the case in hand, custody of Rajan Tiwary was obtained by P.W. 61 on 13.2.1999 whereafter Rajan Tiwary was moved from Delhi to Purnea and back, kept incommunicado, subjected to sustained interrogation vide paragraph 57 of the evidence of P.W. 61 and then produced for recording his confession before P.W. 59 on 22.2.1999 at 12.30 P.M. who allowed Rajan Tiwary one hour time for reflection but proceeded to record his confession at 1.15 P.M., which is indicative of the fact that Rajan Tiwary was not allowed reasonable and sufficient time for reflection before recording his confession by P.W. 59.
179. Failure to observe the safeguard provided under Sub- section (3) of Section 164 Cr.P.C. and to lend assurance to Rajan Tiwary that in case he chooses not to make confession he shall not be remanded to C.B.I. custody, failure to grant Rajan Tiwary sufficient, reasonable time for reflection, coupled with the fact that after recording confession of Rajan Tiwary his custody was handed over to I.O. C.B.I. who produced him for recording confession violating Rule 7 of the Delhi Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 261 High Court Rules, in the opinion of this Court cannot be condoned with reference to the mandate of Section 463 Cr.P.C. as from the entire evidence of the prosecution including the evidence of P.Ws. 59, 61 it does not appear as to why the prosecution did not comply the requirement of Sub-section (3) of Section 164 Cr.P.C. and lend assurance to Rajan Tiwary that in case he chooses not to record his confession his custody shall not be handed over to the C.B.I. From the prosecution evidence it also does not appear as to why Rajan Tiwary after his production by the I.O. C.B.I. on 22.2.1999 for recording his confession was not granted sufficient, reasonable time for reflection by remanding him to jail custody with direction to produce him on the next day for recording his confession. It also does not appear from the prosecution evidence as to why custody of Rajan Tiwary was handed over to I.O. C.B.I., P.W. 61 after he recorded his confession violating Rule 7 of the Delhi High Court Rules.
180. According to the evidence of P.W. 59 in paragraph 22 the confessional statement of Rajan Tiwary is in continuation from page nos. 3 to 6 of Ext. 35. Signature of Rajan Tiwary was obtained on page nos. 3, 4 and 5 of Ext. 35 but perusal of Ext. 35 indicates that signature of Rajan Tiwary is not taken on page nos. 3, 4 and 5 as claimed by P.W.
59. Though Rajan Tiwary is said to have recorded his confessional statement Ext. 35 on 22.2.1999 but the same was produced in court on Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 262 17.11.2005 without there being any explanation for such delay. In this connection, P.W. 59 in paragraph 95 of his evidence further stated that C.B.I. officials never approached him for making fair copy of the confessional statement of Rajan Tiwary for the purpose of supply to the accused persons.
181. For the reasons indicated above in paragraphs 177 to 180, it is not safe to rely on the confessional statement of Rajan Tiwary, Ext. 35 when the same has been retracted by Rajan Tiwary after he was remanded to judicial custody on 23.2.1999 in Tihar Jail vide undated retraction which was forwarded by the Deputy Superintendent, Central Jail No. 5, Tihar, New Delhi under letter no. 181 dated 1.3.1999 to Chief Metropolitan Magistrate, Delhi and was filed before this Court by Rajan Tiwary by way of supplementary affidavit dated 28.9.2004 in Cr. Misc. No. 10646 of 2003 and submission to the contrary made by the counsel for the C.B.I. noted in paragraph 126 of this judgment that on 9.3.1999 Rajan Tiwary was produced from judicial custody in the court of Chief Metropolitan Magistrate Sri R.K. Gauba with his Advocate Sri S.A. Hasmi but no retraction was made by him is incorrect.
182. It may be stated here that confessional statement of an accomplice is admissible under the Indian Evidence Act but requires corroboration in material particulars by other independent evidence. This Court in paragraph 176 above doubted the ocular, found documentary Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 263 evidence of no consequence, does not feel confident to rely on the confessional statement, Ext. 35 for the reasons given in paragraphs 177 to 181 above.
183. Submission of the counsel for the appellant Rajesh Ranjan @ Pappu Yadav with regard to the vires of Section 30 of the Evidence Act in the light of the 69th report of the Law Commission of India and the provisions of the Constitution is not being considered in the present case in view of my finding that in the facts of the present case it is unsafe to rely on the confessional statement made by Rajan Tiwary.
184. Now we proceed to consider the validity of the custody of Rajan Tiwary obtained by P.W. 61 on 13.2.1999 vide endorsement ―received accused in muffled condition with warrant‖ made by P.W. 61 in the margin of remand application dated 13.2.1999, Ext. F filed by S.I. Palvinder Singh, Special Team Crime Branch in the court of Duty Metropolitan Magistrate, Patiala House in connection with R.K. Puram P.S. Case No. 122/99 dated 12.2.1999 under Section 25 of the Arms Act praying inter alia to remand Rajan Tiwary for 14 days judicial custody in the said case. It appears after receipt of the remand application dated 13.2.1999 the Magistrate passed orders ―received accused from police custody remanded to judicial custody till 26.2.1999‖, which is evident from remand application dated 13.2.1999 Ext. F. It, however, appears Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 264 from copy of remand application dated 13.2.1999, Ext. F/4 filed by S.I. Palvinder Singh in connection with R.K. Puram P.S. Case No. 122/99, which is addressed to Sri K.S. Mohi, Metropolitan Magistrate, Patiala House, Delhi praying inter alia for judicial custody of Rajan Tiwary in R.K. Puram P.S. Case No. 122/99 for 14 days. Magistrate having considered the prayer passed the same order ―received accused from police custody remanded to judicial custody till 26.2.1999‖, Ext. F/4 does not contain endorsement by P.W. 61 in the margin of remand application ―received accused in muffled condition with warrant‖. Having perused the aforesaid two remand application, Exts. F, F/4 filed in R.K. Puram P.S. Case No. 122/99 and the order dated 13.2.1999 passed by Metropolitan Magistrate ―received accused from police custody remanded to judicial custody till 26.2.1999 including the fact that endorsement made by P.W. 61 ―received accused in muffled condition with warrant‖ was not made by P.W. 61 on Ext. F/4, this Court asked the counsel for the C.B.I. to produce the order on the basis of which P.W. 61 received accused Rajan Tiwary in muffled condition with warrant on 13.2.1999 as the order of the Magistrate which was passed on petition, Exts. F, F/4 was only to the effect that received accused from police custody remanded to judicial custody till 26.2.1999. Counsel for the C.B.I. then submitted that before Rajan Tiwary could be lodged in judicial custody in Tihar Jail pursuant to order dated 13.2.1999 passed Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 265 by Sri K.S. Mohi/Duty Magistrate another order was passed on the same day i.e. 13.2.1999 (Second Saturday) by Duty Magistrate on the basis of disclosure made by Rajan Tiwary to Delhi police authorizing his custody to C.B.I. for 10 days i.e. until 23.2.1999. In the light of the subsequent order passed by the Duty Magistrate on the same day P.W. 61 received Rajan Tiwary in muffled condition with warrant and made such endorsement on the petition dated 13.2.1999, Ext. F. In the light of the aforesaid submission of the counsel for the C.B.I. this Court directed the learned counsel for the C.B.I. to produce the subsequent order dated 13.2.1999 passed by the Duty Magistrate authorizing C.B.I. custody of Rajan Tiwary until 23.2.1999. Counsel for the C.B.I. then submitted that the subsequent order passed by the Duty Magistrate on 13.2.1999 may be available in the record of R.K. Puram P.S. Case No. 122/99. To verify the aforesaid submission of the learned counsel for the C.B.I. this Court under order dated 12.2.2013 called for the records of R.K. Puram P.S. Case No. 122/99 which was received in this Court on 18.2.2013. With the assistance of the counsel for the parties records of R.K. Puram P.S. Case No. 122/99 was examined but neither the original nor the copy of the subsequent order dated 13.2.1999 passed by the Duty Magistrate authorizing C.B.I. custody of Rajan Tiwary until 23.2.1999 was found in the records of R.K. Puram P.S. Case No. 122/99. Learned counsel for the C.B.I. then submitted that copy of subsequent order dated 13.2.1999 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 266 may not be available in the records of R.K. Puram P.S. Case No. 122/99 but copy thereof having been filed by Rajan Tiwary himself as Annexure-8 series to the supplementary affidavit filed by him in Cr. Misc. No. 10646 of 2003 (Rajan Tiwary Vs. The State of Bihar through C.B.I.) before this Court, there should not be any dispute/doubt about the existence of the order dated 13.2.1999. Perusal of supplementary affidavit dated 28.9.2004 filed by Rajan Tiwary in Cr. Misc. No. 10646 of 2003 do indicate that copy of order dated 13.2.1999 authorising C.B.I. custody of Rajan Tiwary until 23.2.1999 has been annexed with the said affidavit. From perusal of Xerox copy of the order dated 13.2.1999 filed along with supplementary affidavit dated 28.9.2004 in Cr. Misc. No. 10646 of 2003 on 29.9.2004 it appears that said order was passed in first information No. RC 12(S)/98-SIC-IV/New Delhi. It, however, does not appear from perusal of the said order as to who is the author of the order dated 13.2.1999 authorising C.B.I. remand of Rajan Tiwary until 23.2.1999. Another Xerox copy of order dated 13.2.1999 authorising C.B.I. remand of Rajan Tiwary until 23.2.1999 produced by learned counsel for C.B.I. during hearing of this appeal indicates that the said order was passed in R.K. Puram P.S. Case No. 122/99 but from perusal of said order also it does not appear as to who is the author of the order dated 13.2.1999 authorising C.B.I. remand of Rajan Tiwary until 23.2.1999. Certified copy of the order dated 13.2.1999 authorising C.B.I. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 267 remand of Rajan Tiwary until 23.2.1999 being not available either in the record of R.K. Puram P.S. Case No. 122/99 or in the record of RC 12(S)/98-SIC-IV/New Delhi, it is difficult for this Court to uphold the contention of the C.B.I. that as Xerox copy of the order dated 13.2.1999 authorising C.B.I. remand of Rajan Tiwary until 23.2.1999 has been filed by Rajan Tiwary himself there cannot be any doubt about the existence of the said order. It is observed that Rajan Tiwary being in custody his pairvikar filed copy of order dated 13.2.1999 before this Court by way of supplementary affidavit on 29.9.2004 in Cr. Misc. No. 10646 of 2003 but no sooner Rajan Tiwary discovered the fact that order dated 13.2.1999 authorising his remand to C.B.I. custody until 23.2.1999 is not in existence he obtained certified copy of remand application, Ext. F, F/4 and submitted before the trial court that forgery has been committed in judicial record by writing Duty Magistrate after cutting K.S. Mohi at the top of remand application, Ext. F and thereafter his custody obtained by I.O., C.B.I., P.W. 61 on 13.2.1999 by writing in the margin of Ext. F ―received accused in muffled condition with warrant‖. Copy of Ext. F was also shown to Special Public Prosecutor, C.B.I. on 21.5.2007 when remand application was admitted in evidence vide Ext. F. The trial court noticed the aforesaid submission and found in paragraph 41 of its judgment that in Ext. F after cutting K.S. Mohi Duty Magistrate has been written and then observed that enquiry about cutting Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 268 and writing of Duty Magistrate in Ext. F be made by Delhi Court in whose record the forgery was committed. C.B.I. authorities have not challenged the aforesaid finding of the trial court.
185. Now I come to consider the validity of the order dated 15.9.1999 passed by the Special Magistrate, C.B.I., Patna discharging F.I.R. named accused i.e. Bipin Singh @ Bipin Chaudhary, Jawahar Yadav, Abdul Sattar, Diwakar Chaudhary and Pappu Dev of K.Hat P.S. Case No. 230/98 sent up for trial by the Purnea police under charge sheet no. 210/98 dated 20.9.1998 in the court of Chief Judicial Magistrate, Purnea on the basis of which Chief Judicial Magistrate, Purnea having taken cognizance of the offence summoned those accused to face trail under order dated 23.9.1998. Investigation of K.Hat P.S. Case No. 230/98 was entrusted to C.B.I. by the Government of India under notification dated 28.9.1998 whereafter for administrative convenience C.B.I. registered RC 12(S)/98-SIC-IV/New Delhi incorporating the contents of F.I.R. of K. Hat P.S. Case No. 230/98 and entrusted its investigation to Sri N.S. Kharayat, Dy. S.P., C.B.I, P.W. 61 who along with his team proceeded with the investigation and submitted charge sheet dated 10.5.1999 and supplementary charge sheet dated 19.8.1999 under Sub-section (8) of Section 173 Cr.P.C. finding the accusation true against the appellants and two others and not true against Bipin Singh @ Bipin Chaudhary, Jawahar Yadav, Abdul Sattar, Diwakar Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 269 Chaudhary and Pappu Dev who were sent up for trial by the Purnea police under charge sheet dated 20.9.1998 filed under Sub-section (2) of Section 173 Cr.P.C and summoned to face trial by Chief Judicial Magistrate, Purnea under order dated 23.9.1998. In the light of the findings recorded by P.W. 61 in charge sheet dated 10.5.1999 that accusation was not true against Bipin Singh @ Bipin Chaudhary, Jawahar Yadav, Abdul Sattar, Diwakar Chaudhary and Pappu Dev P.W. 61 not only recommended for their discharge but also filed separate application dated 15.9.1999 before the Special Magistrate C.B.I., Patna for discharge of accused persons sent up for trial by the Purnea police under charge sheet dated 20.9.1998. Special Magistrate C.B.I., Patna under order dated 15.9.1999 discharged the accused sent up for trial by the Purnea police under charge sheet dated 20.9.1998. Aforesaid order dated 15.9.1999 passed by the Special Magistrate C.B.I., Patna is wholly without jurisdiction. At the relevant time competent Investigating Agency, i.e. Purnea police on the basis of the material collected during investigation found the accusation true against five F.I.R. named accused persons of K.Hat P.S. Case No. 230/98, submitted charge sheet dated 20.9.1998 under Sub-section (2) of Section 173 Cr.P.C on the basis of which competent court i.e. Chief Judicial Magistrate, Purnea summoned the five F.I.R. named accused persons under order dated 23.9.1998 to face the trial. I.O. C.B.I., P.W. 61 while further Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 270 investigating K.Hat P.S. Case No. 230/98 did not find accusation true against the five F.I.R. named accused i.e. Bipin Singh @ Bipin Chaudhary, Jawahar Yadav, Abdul Sattar, Diwakar Chaudhary and Pappu Dev of K.Hat P.S. Case No. 230/98. P.W. 61 ought not to have recommended for their discharge under charge sheet dated 10.5.1999 as also filed petition dated 15.9.1999 for such purpose. Similarly C.B.I. Magistrate while committing RC 12(S)/98-SIC-IV/New Delhi for its trial by Additional Sessions Judge-XI cum C.B.I. Court, Patna ought not to have discharged the F.I.R. named accused under order dated 15.9.1999, which is wholly without jurisdiction. In any case, the trial court i.e. Additional Sessions Judge-XI cum C.B.I. Court, Patna after receipt of the records of K. Hat P.S. Case No. 230/98 from Chief Judicial Magistrate, Purnea on 7.1.2002 in compliance of the order of the High Court dated 11.12.2001 passed in Cr. Revision No. 883 of 2001 should have summoned Bipin Singh @ Bipin Chaudhary, Jawahar Yadav, Abdul Sattar, Diwakar Chaudhary and Pappu Dev the five F.I.R. named accused persons of K. Hat P.S. Case No. 230/98 to face trial along with these appellants. Trial court having tried the appellants alone who have been sent up for trial by the C.B.I. under charge sheet dated 10.5.1999 and supplementary charge sheet dated 19.8.1999 filed under Sub-section (8) of Section 173 Cr.P.C and not the five F.I.R. named accused of K. Hat P.S. Case No. 230/98 who were sent up for trial by the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 271 Purnea police under charge sheet dated 20.9.1998 filed under Sub- section (2) of Section 173 Cr.P.C and summoned to face trial under order dated 23.9.1998 has committed gross injustice and illegality as the five F.I.R. named accused persons against whom the accusation was found true by the competent Investigating Agency i.e. Purnea police under Sub-section (2) of Section 173 Cr.P.C on the basis of which those accused persons were summoned to face trial by the competent court i.e. Chief Judicial Magistrate, Purnea under order dated 23.9.1998 have been let off on the recommendation of the Investigating Agency which was entrusted with further investigation of the case. Neither the agency further investigating the case i.e. C.B.I. nor the C.B.I. Magistrate, Patna had the jurisdiction to let off five F.I.R. named accused sent up for trial by the Purnea police under Sub-section (2) of Section 173 Cr.P.C. and summoned to face trial by the competent court under order dated 23.9.1998. After receipt of the record of K. Hat P.S. Case No. 230/98 in compliance of the order of the High Court dated 11.12.2001 passed in Cr. Revision No. 883 of 2001 it was the bounden duty of the Trial Judge to have issued fresh summons to those who were erroneously let off by the C.B.I. Magistrate, Patna under order dated 15.9.1999 as neither the Delhi High Court under order dated 5.5.1999 passed in Cr. Writ Petition No. 258 of 1999 nor this Court under order dated 20.3.2002 reported in 2002 (4) PLJR 327 referred to in paragraphs 91, 92 and 93 of this Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 272 judgment approved discharge of five F.I.R. named accused of K. Hat P.S. Case No. 230/98. Reliance in this connection be placed over the judgment of the Supreme Court in the case of T.T. Antony Vs. State of Kerala and others, AIR 2001 SC 2637, Rama Chaudhary Vs. State of Bihar, AIR 2009 SC 2308 and Vinay Teyagi Vs. Irshad Ali @ Deepak and others., 2013 CRI.L.J. 754.
186. There is yet another aspect of the matter. The trial court in the light of the evidence recorded by A.K. Jha, P.W. 56 in court, who scribed the fardbeyan dated 14.6.1998, Ext. 27, recorded the further statement of the informant, P.W. 8 and the statement of the two eye witnesses, P.Ws. 9, 10 during the night between 14-15.6.1998 as also took various other steps in investigation and then filed charge sheet no. 210 dated 20.9.1998 against the five F.I.R. named accused persons as also in the light of the evidence of P.W. 61 who did not find fault with the investigation conducted by P.W. 56 (vide paragraph 216 of his evidence) and further did not give reason in his charge sheet for not accepting the charge sheet submitted by Purnea police (vide paragraph 235 of his evidence), exercising its power under Section 319 Cr.P.C. should have summoned the accused let off by the Special Magistrate, C.B.I. under order dated 15.9.1999. In the absence of accused persons let off by the C.B.I. Magistrate the trial of the appellants is an abuse of the process of the court as other set of accused sent up for trial for the same Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 273 offence have been let off by the C.B.I. Magistrate under order dated 15.9.1999 on the recommendation of another Investigating Agency without undergoing the due process of trial which has occasioned in failure of justice. It was for the court to decide the correctness of the investigation conducted by the two separate Investigating Agency fixing the identity of the two different set of accused, one set of accused named in the F.I.R. and the other set of accused named for the first time before the C.B.I. authorities. By trying these appellants alone after letting off the other set of accused named in the F.I.R. the dice has been loaded exclusively against these appellants which has occasioned in failure of justice.
187. In view of my findings and observations in paragraphs 176 to 182, 184 to 186 above, the three appellants deserve to be granted benefit of doubt. The impugned judgment and the order of sentence dated 14.02.2008 is set aside. Appellant Rajesh Ranjan @ Pappu Yadav is directed to be released forthwith, if not required in any other case. Appellants Anil Kumar Yadav and Rajan Tiwary are discharged from their bail bonds.
(V.N. Sinha, J) Amaresh Kumar Lal, J : I agree.
(Amaresh Kumar Lal, J) Rajesh/AFR