Allahabad High Court
Piyush Gupta vs State Of U.P. on 25 July, 2022
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- CRIMINAL APPEAL No. - 5806 of 2006 Appellant :- Piyush Gupta Respondent :- State of U.P. Counsel for Appellant :- Pankaj Bharti,Alok Ranjan Mishra,Anand Prakash Srivastava,Beenu Singh,Noor Mohammad,Satya Dheer Singh Jadaun,Ved Prakash Pandey,Vishal Agarwal Counsel for Respondent :- Govt. Advocate, Dileep Kumar,R.K. Srivastava,S.P.S.Raghava Connected with Case :- CRIMINAL APPEAL No. - 6421 of 2006 Appellant :- Lokesh @ Babloo Respondent :- State of U.P. Counsel for Appellant :- Sita Ram Vishwakarma,Alok Ranjan Mishra (A.C.),Noor Mohammad,S.Alim Shah,Vishal Agarwal Counsel for Respondent :- Govt. Advocate,Anil Raghav,Dileep Kumar,S.P.S. Raghav Connected with Case :- CRIMINAL APPEAL No. - 6412 of 2006 Appellant :- Manoj Sharma Respondent :- State of U.P. Counsel for Appellant :- I.K. Chaturvedi,Bharat Bhushan Paul,Noor Mohammad,Sayed Saifulla (A.C.),Vishal Agarwal Counsel for Respondent :- Govt. Advocate,Anil Raghav,Dileep Kumar Connected with Case :- CRIMINAL REVISION No. - 6146 of 2006 Revisionist :- Rakesh Mittal Opposite Party :- State of U.P. and Others Counsel for Revisionist :- Anil Raghav,Rajesh Kumar Srivastava,S.P. Singh Raghav,Virendra Kumar Srivastava AND Case :- GOVERNMENT APPEAL No. - 598 of 2021 Appellant :- State of U.P. Respondent :- Piyush Gupta And Others Counsel for Appellant :- Govt. Advocate Hon'ble Manoj Kumar Gupta,J.
Hon'ble Om Prakash Tripathi,J.
1. Appeals bearing No.5806 of 2006, 6421 of 2006 and 6412 of 2006 are by accused persons against the judgment by the Court of Special Judge (D.A.A.), Agra dated 26.8.2006 convicting them under Sections 364-A, 302, 201 IPC and sentencing them to rigorous life imprisonment and fine of Rs.10,000/- each under Section 364-A IPC and same punishment for offence under Section 302 IPC and seven years rigorous imprisonment and fine of Rs.10,000/- each for offence under Section 201 IPC and in case of default in payment of fine, additional simple imprisonment of one year for each offence. All the sentences so awarded were to run concurrently and default sentences consecutively. Half of the fine was to go to the complainant, PW-1.
2. Criminal Revision No.6146 of 2006 is by complainant for enhancement of sentence of the convicted appellants from life imprisonment to capital punishment. The same prayer has been made in G.A. No.598 of 2021. Since all these matters relate to the same offence and involve common questions of facts and law, therefore, all the matters were heard together and are being decided by this common judgement.
3. The case relates to gruesome and heinous crime of kidnapping and murder of a ten years boy Gaurav Mittal (victim).
4. According to the prosecution story, the victim had gone missing since 19.02.2004. Initially, a missing report was lodged by his father Rakesh Kumar Mittal (PW-1) on 22.2.2004 at 03:30 p.m. at P.S. MM Gate (Ext. Ka-12) stating that his son Gaurav Mittal aged 10 years had gone from his house to his grandfather's house who lived nearby at about 5:00 p.m. on 19.02.2004. After sometime, it transpired that his son did not reach his grandfather's house. Consequently, they made hectic search for him. He was wearing full sleeves green coloured bush shirt, grey coloured pant and sleepers. His complexion is fair and on his right eye, there is a black coloured mark.
5. On 21.2.2004, suspecting foul play, PW-1 got installed ID Caller on his land-line number 0562-2363149. PW1 received a ransom call on 22.2.2004 on his land-line number. The kidnappers asked for ransom for safe release of his son. They said that the sum would be disclosed to him on the following day.
6. S.S.P., Agra, looking to the seriousness of the crime, handed over the investigation to SOG. It was headed by Sub-Inspector Avaneesh Dixit (PW3).
7. Second ransom call according to PW-1 was received by him on 23.2.2004. The kidnappers demanded Rs. 15 lakhs as ransom money. On 24.2.2004, he again received call from the kidnappers and ultimately the deal was settled for a sum of Rs. 5 lakhs. Some calls were received from mobile number 9899580426 and some from land-line number 22311244. On 22.2.2004 at 3:20 p.m., the missing report was converted into first information report, bearing Crime Case No. 29 of 2004, under Section 364-A IPC, against unknown persons (Ext.-14).
8. The SOG team came to know that ransom calls were being made from Delhi. They headed for Delhi and reached Police Station Vivek Vihar on 25.2.2004 at 10:30 a.m. They apprised SI Atul Tyagi (PW6) and SI Vinay Tyagi about the episode. On investigation, it transpired that landline number 22311244 from which ransom calls were received, was that of a PCO at Balbir Nagar, Shahdra, Delhi, owned by one Sachin Chauhan and the Service Provider was Hutch company.
9. At 11:15 a.m., they reached the said location. They could not gather any clue as Sachin Chauhan told the police that it was not possible for him to remember identity of every customer who uses PCO.
10. At about 11:20 a.m., when the police party was returning after making enquiry from Sachin Chauhan, Sub-Inspector Atul Tyagi (PW6) received information from mukhbir (police informer) that since last 2-3 days, a boy aged 10 years was seen in company of Piyush Gupta (C1), who lives in a room on rent in Balbir Nagar, and his two companions Lokesh alias Babloo (C2) and Manoj Sharma (C3). Piyush Gupta is introducing him as his bhanja (sister's son). Their activities appear to be suspicious. When the photograph of the victim was shown to the Mukhbir, he immediately identified him as the same child who was seen in company of Piyush Gupta and his friends. He also informed that they were planning to go to Karkardooma at around 12.00 - 01.00 p.m. through Jhilmil Industrial Area and in case timely action is taken, they can be trapped.
11. The police party reached the railway pulia at Pratap Khand, Shahadara at 11:50 a.m., along with the mukhbir and PW1. At about 12:30 p.m. the mukhbir pointed out towards three persons coming on Rajdoot Motorcycle bearing number DL55/6977. He identified them as Piyush Gupta and his companions and went away. The police succeeded in catching them. It had to use force to control them. In the scuffle that followed, Sub-Inspector Atul Tyagi and Assistant Police Inspector Majid Khan also received minor injuries. They revealed to the police that they had kidnapped the child for ransom on 19.2.2004 at 5:30 p.m. and they made calls to Rakesh Mittal (PW1) demanding ransom. The deal was struck at a sum of Rs. 5 lakhs. As the victim knew Piyush Gupta, being son-in-law of younger brother of Rakesh Mittal, therefore, fearing that their identity will get disclosed, they had done him to death in the morning of 23.2.2004 and the dead body was burried in a pit caused by uprooting of a tree on the backside of Institute of Human Behaviour and Allied Sciences, Shahadra and GTB Hospital Shahadra. All the three were arrested and their arrest memos were prepared (Ext. Ka16, Ka17, KA18). The confessional statement of the accused were recorded separately (Ext. Ka1, Ext. Ka2, Ext. Ka3). They admitted having abducted and killed the victim by strangulating him with the aid of a shoe lace and that they continued to demand ransom money even after Gaurav was killed.
12. Upon search, the police succeeded in recovering a mobile SIM Card bearing Number 9899580426 (Ext. Ka5) and one Motorola Mobile set (Ext. Kha1) from Piyush Gupta. In his confessional statement, Piyush Gupta admitted that it was the same SIM from which they used to make ransom calls to Rakesh Mittal over his land-line number 05622363149. On search of Manoj Sharma, a mobile phone of Nokia make-model 3315 bearing IMEI number 351479600989140 was recovered (Ext. Ka6). Another mobile of Siemens make was also seized (Ext. Kha3). A seizure memo in respect of motorcycle was also prepared (Ext.Ka-7).
13. Thereafter the police party on pointing out of the accused went to open ground on the backside of GTB Hospital, where they had dumped the body of the victim. The body was found lying in a pit caused by uprooting of a tree. It was duly identified by PW-1 as that of his son. The police prepared recovery memo of dead body (Ext.Ka-10) and inquest report (Ext. Ka-20). While the said proceedings were in progress, a mob assembled at the site and it got emotionally charged on coming to know about the incident. Despite best efforts by the police to disperse the crowd they attacked the accused resulting in minor injuries to them (Injury report-8A/1, 8A/2, 8A/3).
14. Information regarding recovery of dead body was given to police station Dilshad Garden Delhi over telephone and whereupon S.H.O. of the said police station Satish Sharma, Sub-Inspector Virendra and other police personnel came to the spot. The body was taken in possession and its fard (Ext. Ka-10) was prepared. There was a black shoelace tied around the neck of Gaurav and he was wearing a white coloured slippers. The left eye of the victim was found damaged. The right eye and mouth were found closed.
15. All the three accused as well as Sub-Inspector Atul Tyagi and Majid Khan had undergone medical examination at S.D.N. Hospital, Shahadara at 5:00 p.m. onwards and thereafter the accused were brought to police station Vivek Vihar, Delhi. On the same day, police added Section 302, 201 IPC. On the next date, at about 11:00 a.m., post mortem of the dead body (Ext. Ka-5) was carried out. Thereafter the police obtained transit remand of the accused from the local court at Delhi and brought them to Agra. On 27.04.2004, the Investigating Officer took in his custody the audio cassette attached to I.D. Caller from PW-1 and prepared fard Ext. Ka-11. The Investigating Officer also obtained CDR of the mobile phone from which ransom calls were received (Ext. Ka-29). After completing the investigation, a charge sheet under Section 364-A, 302, 201 IPC was submitted to the concerned court against the accused persons. The accused denied the charges and claimed to be tried.
16. The prosecution in support of its case examined the following witnesses:-
(1) PW-1 - Rakesh Kumar Mittal, complainant, (2) PW-2 - Rajendra Prasad, neighbour of PW-1, (3) PW-3 - Avaneesh Dixit, SOG Incharge, Agra, (4) PW-4- Ram Autar Singh, Constable Clerk, P.S. M.S. Gate, Agra, (5) PW-5 - Dr. S. Lal who carried out post mortem, (6) PW-6 - Atul Tyagi, SI, P.S. Vivek Vihar, Delhi as on 25.02.2004, (7) PW-7 - Virendra Kumar, SI, P.S. Dilshad Garden, Delhi, (8) PW-8 - SI Virendra Singh, P.S. M.S. Gate, Agra, Investigating Officer, (9) PW-9 - Chhatrapal, witness of last seen, (10) PW-10 - Gulshan Arora, Nodal Officer, Hutch Company.
17. The accused did not examine themselves. They examined one S.M.P. Singh, retired employee of Private Security Company as DW-1.
18. The accused were confronted with the incriminating circumstances and evidence under Section 313 Cr.P.C. C1 admitted that he knew PW-1 and also disclosed that he is distantly related to him, but alleged that he was falsely implicated. C2 Lokesh Sharma denied having known PW-1 and alleged that he was falsely implicated. Similar stand was taken by C3. The Special Judge (D.A.A.), Agra after hearing the parties and considering the evidence on record convicted and sentenced the accused of offences under Sections 364-A, 302, 201 IPC by judgement dated 26.8.2006.
19. We have heard Sri Rishi Mehrotra and Sri V.P. Pandey for the appellants, Sri Rajarshi Gupta for the complainant and learned A.G.A. Sri A.N. Mulla for the State and perused the record.
20. Learned counsel for the accused appellants attacked the prosecution case and the judgement of the trial court on the following grounds:-
(a) The prosecution case which is based on circumstantial evidence has several missing links in the chain of circumstances. The mukhbir who forms the most important link in the prosecution story was not examined. He, according to the prosecution story, was the last person who saw the accused with the victim. His non-examination is thus fatal to the prosecution case.
(b) The evidence of PW-1 was unreliable. He was an interested witness and he had falsely implicated the accused appellants on account of matrimonial discord between Pramod Agrawal, his Buwa's son and his spouse (Preeti), younger sister of C1.
(c) PW-1 admits that the confessional statements of accused persons were made before the police, consequently, the same is inadmissible being hit by Section 25/26 of the Evidence Act.
(d) PW-1 admitted that he had conversation with the victim on 22.02.2004 and even at that time, he did not inform him that he was with his uncle Piyush Gupta (C1).
(e) PW-9 Chhatrapal was a planted witness. PW-8 admitted that he did not inquire from the employer of PW-9 about his employment. He despite knowing that the victim was seen in company of accused persons on 19.02.2004, did not inform any one about the same for almost a month. Moreover, it was admitted by PW-9 that no TIP was done to ascertain the identity of accused persons.
(f) According to the prosecution case, the accused-appellants had killed the deceased not because of non payment of ransom money, but because of fear of being caught and as such, ingredients of Section 364-A IPC are not made out.
21. Per contra, learned counsel for the complainant and learned A.G.A. contended that:-
(a) The prosecution has been successful in leading cogent and credible evidence to complete the chain of circumstances which conclusively establishes the guilt of the accused persons and also excludes role of any other person in the crime and thus, the judgement of the trial court requires no interference.
(b) The discovery of dead body at the pointing out of the accused persons from an isolated place is admissible under Section 27 of the Indian Evidence Act and is a crucial incriminating circumstance.
(c) The recovery of sim card as well as mobile phone by which ransom calls were made by the accused persons establishes their involvement in the crime.
(d) The demand of ransom stands corroborated by the audio recordings.
(e) The making of call by accused persons by use of sim card and mobile phone recovered from them matches with the CDR and EMEI number. The same has been duly proved by the Nodal Officer of Hutch Company (PW-10).
(f) The evidence of last seen of PW-9 Chhatrapal clinches the case in favour of the prosecution. His testimony is of unimpeachable character. He has identified all the three accused.
(g) At the time of discovery of dead body, the general public in a fit of rage attacked the accused, resulting in injuries to them. It establishes the presence of the accused at the place from where dead body was recovered.
(h) C1 being distantly related to the family of PW-1 and on visiting terms, was aware of the financial status of the complainant. Moreover, he also had grudge against PW-1 on account of differences between his younger sister and her spouse who is related to PW-1 and whom C1 believed to be the person instrumental in their separation.
(i) The victim was kept alive only till the complainant's family was made to believe that he had been kidnapped so as to extract the ransom amount. After ensuring that, even before ransom money was received, he was done to death.
(j) As PW-9 knew that C1 is related to PW-1 and was on visiting terms, there was no incriminating circumstance in existence on 19.02.2004 so as to alarm him to report about his seeing the victim in the company of the accused-appellants. As soon as he returned from Vaishno Devi and came to know of the murder of the victim, he reported the matter. Consequently, short delay after which he became part of the investigation would be of no significance nor in any manner raises any doubt about the credibility of the witness.
(k) The identity of the mukhbir of the police is generally not disclosed. Moreover, there is other clinching evidence which fully establishes the prosecution case.
22. Some of the facts which are not in dispute are as follows:-
On 22.2.2004, PW-1 lodged a report mentioning that his son Gaurav Mittal was missing since 19.02.2004. On 23.02.2004 the police added Section 364-A IPC and the missing report was registered as Crime Case No.29 of 2004 against unknown persons. On 25.02.2004 the police added Section 302/201 IPC. Piyush Gupta (C1) in his statement under Section 313 Cr.P.C. admitted that he knew PW-1 Rakesh Kumar Mittal and also the fact that he was resident of 9/409 Karigar Ki Bageechi, Noori Darwaja, P.S., M.S. Gate, Agra. He also admitted that he is brother in law (Sala) of younger brother of PW-1. He further stated that his second sister Preeti was married to Pramod Agrawal who is son of aunt (Buwa) of PW-1. He stated that Pramod Agrawal used to assault his sister physically and about which he had made complaint to PW-1 several times. He further stated that PW-1 was instrumental in causing rift between his sister and her husband and cases under Section 498-A IPC and 125 CrPC were pending against Pramod Agrawal. He alleged that he was falsely implicated for the above reason. He thus admitted close relationship between him and PW-1. The above facts supports the version of PW-1 and PW-9 that C1 used to visit Rakesh Kumar Mittal (PW-1) and his family in Agra and thus had knowledge of the status of PW-1.
23. However, no body had witnessed the actual commission of crime and prosecution case is based on circumstantial evidence.
24. The first and most crucial part of the prosecution story in the chain of events is the evidence of last seen of the accused persons with the victim. We, therefore, first proceed to consider the said aspect.
Evidence of last seen
25. PW8 (Investigating Officer), in his cross-examination stated that on 24.02.2004, he was informed by PW-1 that certain persons of the Mohalla were heard saying that on 19.02.2004 victim was seen going towards Rajamandi at about 6:00 p.m. with certain persons. He enquired from one or two persons of the Mohalla but their names have not been mentioned in the case diary. He could not get any relevant information on that date. On 19.03.2004 he went for making investigation to Mohalla- Karigaron Ki Bageechi where PW1 resides. There he was informed by certain persons that one Chhatrapal who works with Gopal Kachcha Petha Arhat and now with Keshav & Company, Chitra Talkies, saw certain persons taking the victim alongwith them at about 5:30 p.m. towards Raja Mandi crossing. They also informed that he recognizes one of them. The Investigating Officer stated that he searched for Chhatrapal on that day but could not find him. Ultimately, he succeeded in tracing him out and recorded his statement on 21.03.2004 at Keshav & Company, Chitra Talkies (place where he works). He told the Investigating Officer that he had seen the victim alongwith Piyush Gupta (C1) and his two accomplices (C2, C3) on 19.02.2004 at 5:30 p.m.
26. Chhatrapal about whom Investigating Officer has stated as above, was examined as PW-9. In his examination-in-chief, he stated that he knew PW-1 since last 3 - 3½ years. PW-1 is engaged in business of Petha. He stated that he himself works with Keshav & Company, commission agent in front of Chitra Talkies. He clarified that he was working as an employee in the said Company. He also disclosed that raw Petha was supplied by Keshav & Company to PW-1 and he used to visit his shop in connection with realization of money for the supplies made to PW-1. He was introduced to Piyush Gupta (C1) by PW1. He had told him that C1 is brother-in-law of his younger brother Pappu. He further stated that when he used to visit the shop of PW-1, many a time, C1 was found sitting there. On 19.02.2004 at about 5:30 p.m. when he was standing near a paan shop (in front of Venus Studios) eating Gutka, he saw Piyush Gupta taking the victim alongwith him holding his finger. His two accomplices were also there. He further stated that he could identify those two persons if they come before him. He admitted that he did not know them from before. He further stated that at that time, he had no reason to get alarmed and, therefore, after making his purchases, he went away. Thereafter on 21.02.2004 he went to Vaishno Devi for pilgrimage. He returned after 25 days. He came to Arhat (place where he works) on 15-16.03.2004 and there he heard from the employer Holu Keshav that son of PW-1 has been murdered. Then he informed that on 19.02.2004 he saw Piyush Gupta and his two accomplices alongwith the victim near Venus Studio. He again stated that he can identify the two persons who were accompanying C1. He thereafter identified Piyush Gupta (C1), who was present in the court. He further stated that the persons, who were accompanying Piyush Gupta on that day, are standing alongwith him in court. He admitted that he did not know the names of two other persons. He was put to lengthy cross-examination wherein he reiterated his version during examination-in-chief. He denied that he had any family terms with Rakesh Mittal (PW-1).
27. Learned counsel for the appellants vehemently urged that PW-9 was a planted witness. It is submitted that if PW-9 had seen the accused persons taking away the victim on 19.02.2004, he would have disclosed the said fact immediately, or soon after his kidnapping and not after more than one month. Recording of his statement on 21.03.2004 under Section 161 CrPC with delay of one month clearly reveals that he was a planted witness and had made a false deposition.
28. It is clear from the statement of PW-9 that he was knowing C1 since last 3 - 3 ½ years. He also knew that he is brother-in-law of Pappu, younger brother of PW-1. He thus knew about the relationship between the victim and C1.
29. In the above backdrop, the statement of PW-9 that on 19.02.2004 when he saw the victim accompanying C1 and his two accomplices, there was no incriminating circumstance so as to get alarmed, seems very natural and devoid of any suspicion.
30. The credibility of a witness has to be decided on fact of each case. In the instant case, the Investigating Officer has given specific reasons for not examining PW-9 in the initial stages of investigation. PW-9 himself has given valid explanation for not reporting the matter to any one immediately as there was nothing suspicious in seeing the victim along with C1. He reported the matter as soon as he returned from pilgrimage and came to know of the death of the victim.
31. PW-9 had no enmity with accused persons. There is no evidence that he was puppet witness of the police and had deposed in any other criminal case in favour of the prosecution. The defence had also tried to dent his testimony by suggesting that he was employed as a clerk of Achal Kumar Sharma, who was one of the Advocates for the prosecution. He had denied having worked as clerk with Achal Kumar Sharma, though he admitted that he lived for some time in one kothari belonging to him. The trial court has given valid and convincing reasons for not discarding the testimony of PW-9 on the said ground and this Court fully concurs with the same. There is no major contradiction in the testimony of PW-9 except for some minor variation at few places. When considered as a whole, there is a ring of truth in his deposition and we find no reason to discard the same. Accordingly, the submission of learned counsel for the appellants that PW-9 is not reliable witness or was planted by the prosecution does not merit acceptance.
32. Learned counsel for the appellants submitted that the prosecution case hinges upon the information given by the informer to the police. However, he was not examined and this is fatal to the prosecution case.
33. A mukhbir or a police informer is generally a person who gives lead to the police regarding suspicious activities or crime coming to his knowledge. Such persons are generally paid by the police department, when any important lead is given by them. A police informer/mukhbir never comes on the forefront of a crime scene, so that the general public may not come to know of his link with the police. He is able to deliver results till the time his identity is not known to general public. The police usually does not discloses identity of such person in trial, nor examines its mukhbir. The examination of a police mukhbir is never considered an important part of criminal trial as even otherwise, no importance would be attached to his version. He would be labelled as a pocket witness of the police. Moreover, as noted above, where there was other witness available who had witnessed the victim in company of the accused, and his testimony is found to be reliable and trustworthy, the non-examination of the mukhbir does not have any adverse impact on the prosecution case.
34. In State of Uttar Pradesh Vs. Rajju and others, (1971) 3 SCC 174, similar plea regarding non-examination of the police informer was raised, but it was repelled by the Supreme Court disagreeing with the contrary observations made in this behalf by the High Court. The observation which was made by the High Court in the said case was as follows:-
"The informer would have been the best person to corroborate the story as given by Sri Siddiqi. It is correct that it is not necessary for the police to produce the informer, but, as mentioned above, he would have been the best person to corroborate the story of Sri Siddiqi."
35. The Supreme Court disapproved the said view making the following observations:-
"With great respect, the learned Judge has not given any good reason for disagreeing with the judgment of the learned Sessions Judge. The fact that the informer has not been produced does not weaken the prosecution case, especially as PW1 had recorded the information in the general diary."
36. The next crucial circumstance in the chain of events is the arrest of accused and recovery of dead body of the victim on the pointing out of the accused. We now proceed to examine whether the prosecution has been successful in proving these events.
37. PW1, PW3, PW6 and PW8 are eye witnesses of the arrest of C1, C2 and C3 and recovery of dead body of the victim. According to the prosecution case, on receipt of information from mukhbir about the movements of accused, they reached a pulia of a railway crossing, near Kakarduma Court at about 11:50 a.m. on 25.2.2004. The police carried out naka bandi. At about 12:30 noon, they saw a rajdoot motorcycle coming towards them with three persons riding it. The mukhbir pointing out towards them, informed the police that they were same persons and then went away. The police succeeded in catching the accused persons. They disclosed their identity to the police and also confessed having committed the crime. The police searched them (jama talashi) and prepared recovery memos of goods and articles recovered from them (Ext. Ka5, KA6, Ext. 7).
38. They confessed before the police about their crime. On their pointing out, the police succeeded in recovering the dead body of the victim. The statement of all the three witness on the above aspect is consistent and there is no material contradiction or variation so as to raise suspicion or discard the same. We now proceed to examine whether it stands corroborated by other evidence on record or not.
39. We first proceed to examine the evidentiary value of the alleged confessions (Ext. Ka1, Ka2, Ka3).
Evidentiary Value of Confessional Statements-
40. There are three witnesses of the confession memos. They are S.I. Atul Tyagi (PW-6), S.I. Avaneesh Dixit (PW-3) and Rakesh Kumar Mittal (PW-1). In their confessional statements, the accused have admitted having kidnapped the victim with intention to extort a heavy amount of ransom. They stated that after kidnapping the victim, they brought him to Delhi and kept him at 1/5679 Gali 18, Balbeer Nagar, Shahadara, Delhi. They demanded ransom money from the house at Rohtas Nagar and Loni Road, M.I.G. flat by using mobile no.9899580426. Initially, they demanded Rs.15 lakhs, but ultimately the deal was struck at Rs.5 lakhs. In case they would have left the victim after realising ransom, he would have revealed their names and consequently, they planned to kill him. Accordingly, they took him to open ground between G.T.B. Hospital, Shahadara and Institute of Human Behaviour and Allied Sciences at 10.00 a.m. on 23.02.2004 and murdered him by strangulating him with the use of a shoe lace. Thereafter, they dumped his body under the roots of a tree which had fallen. Even after killing him, they kept demanding ransom money. Now the police has arrested all three of them and also recovered the mobile phone from which ransom calls were made. They also stated that they can help in recovery of the dead body. In the end, they accepted their mistake in committing the offence and prayed for mercy.
41. Learned counsel for the appellants vehemently urged that Ext Ka1, Ka2 and Ka3 are inadmissible in evidence, being hit by Section 25 and 26 of the Evidence Act. In support of his contention, he has placed reliance on Indra Dalal vs. State of Haryana (2015) 11 SCC 31, wherein the Supreme Court has held that if confessional statement is made in presence of police officer, it is inadmissible in evidence as per Section 26 of the Evidence Act.
42. The Supreme Court in the case: State of Uttar Pradesh Vs. Deoman Upadhyay, 1960 Cr.L.J. 1504 interpreted Section 24 to 27 of the Indian Evidence Act, 1872 and also Section 162 of the Criminal Procedure Code and laid down the following propositions: -
"(a) Whether a person in custody or outside, a confession made by him to a police officer of the making of which is procured by inducement, threat or promise, having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence.
(b) A confession made by a person whilst he is in custody of a police officer to a person other than a police officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate.
(c) That part of the information given by a person whilst in police custody, whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered but no more, is provable in a proceeding in which he is charged with the commission of an offence.
(d) A statement, whether it amounts to a confession or not, made by a person when he is not in custody, to another person, such latter person not being a police officer may be proved if it is otherwise relevant.
(e) A statement made by a person to a Police Officer in the course of an investigation of an offence under Chapter 14 of the Criminal Procedure Code cannot except to the extent permitted by Section 27 of the Indian Evidence Act, be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when the statement was made in which he is concerned as a person accused of an offence."
43. State of Rajasthan Vs. Rajaram (2003) 8 SCC 180, deals in some detail the law in relation to extra judicial confessions. It was observed that the confession made to the police is not admissible in view of Section 24 of the Evidence Act. A confession cannot be used against an accused person unless the court is satisfied that it was voluntary and at that stage, the question whether it is true or false, does not arise. If any doubt arises in relation to voluntariness of the confession, the court may refuse to act upon the confession even if it is admissible in evidence. One important question in regard to which the court has to be satisfied with is whether when the accused made the confession, he was a freeman and his movements were controlled by the police either by themselves or through some other agency implied by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. So where the statement is a result of harassment or continuous interrogation for several hours, such statement must be discarded, being involuntary.
44. In Balvinder Singh Vs. State of Punjab [1995 Supp. (4) SCC 259], the Supreme Court stated the principle that:-
"an extra-judicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."
45. In Kavita Vs. State of Tamil Nadu (1998) 6 SCC 108, the Supreme Court held that:-
"there is no doubt that conviction can be based on extrajudicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon veracity of the witnesses to whom it is made."
46. In a more recent judgement in Sahadevan and another Vs. State of Tamil Nadu (2012) 6 SCC 403, the Supreme Court after considering large number of previous judgemens on the point laid down the following principles in relation to admissibility of extra judicial confession:-
"Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law."
47. Keeping the above principles in mind, we now proceed to find out whether the confessions made by the accused passes the muster laid down in various pronouncements of the Apex Court.
48. It is noteworthy that all the confessions though given by different persons are almost identically worded. Most of the portion is exactly similar. In the instant case, the accused persons were arrested, while they were in process of executing their plan. It seems highly improbable that at the said stage when they were abruptly taken in custody, they immediately confessed to their guilt. The normal human behaviour is of denial. They were not caught alongwith the victim. Two of the witnesses were police personnel. The third one is the complainant. The confession were recorded while the accused were in police custody. The trial court while relying on the confessions of the accused has not considered the said aspects at all. The trial court has altogether ignored the fact that these statements were made to the police while investigation was in progress. Undoubtedly, the confessions were hit by Sections 25 and 26 of the Evidence Act. However, so much of the statement as has led to discovery can be admissible under Section 27. We therefore proceed to examine the said aspect.
Discovery of the body of the victim on the pointing out of C1, C2, C3 -
49. The seizure memo of the dead body is Ext. Ka-10. It is witnessed by Rakesh Kumar Mittal (PW-1), Constable Moti Lal (not examined) and Sub-Inspector Vinay Tyagi (PW-6). It mentions that on the pointing out of accused-appellants, the body was recovered from a pit caused by uprooting of a tree on the backside of G.B.T. Hospital. A black thread was found tied around the neck of the deceased. The photographs of the site were taken. Left eye of the deceased was found damaged. The site plan is Ext. Ka-27. PW8 SI Virendra Singh stated in his testimony that after taking the accused in custody, they went to the place of incident. The site plan was prepared by him on the spot. He identified his signatures on the site plan. It is clear from his cross-examination that the pit from which body was recovered was about 100 meter inside, from the main road. It is an open deserted place. The pit and the uprooted tree have been shown in the site plan. The defence examined a retired officer of Security Service (DW-1) of Institute of Human Behaviour and Allied Sciences, in an effort to prove that security guards remained posted in the adjoining building and it was not possible to commit crime at that place. However, he himself admitted that on that day no security guard was on duty between GBT Hospital and Institute of Human Behaviour and Allied Science. He further stated in his cross-examination that there is a gate on the eastern wall of Institute of Human Behaviour and Allied Sciences but it remains closed and no security guard was ever deputed at that gate. He also admitted that nobody goes to that place. His testimony rather supports the prosecution version that the site of recovery of body was a deserted place where no one used to go.
50. Rakesh Kumar Mittal (PW-1), father of the deceased, stated that all the three accused, interrogated separately, stated that they were instrumental in killing his son and they have dumped his body in a pit on the backside of G.T.B. Hospital. The accused also stated that they can show the place where the dead body was hidden by them. On their pointing out, the body was recovered from a pit on the back side of GTB Hospital. He stated that the police prepared the fard of the recovery of dead body on the spot. He also stated that the police, after preparing the fard, read over the same to him and it bears his signature. He identified his signatures on the fard and it was marked as Ext. Ka-10.
51. Sub-Inspector Atul Tyagi, another witness of the fard was examined as PW-6. He stated that after arrest of the accused, on their pointing out, they went to open land lying between G.T. B. Hospital and Institute of Human Behaviour and Allied Sciences at 2.00 p.m. The dead body of the victim was found in a pit caused by uprooting of Shahtoot tree by the side of wall of Institute of Human Behaviour and Allied Sciences. The fard of identification of place of recovery of dead body of victim was prepared on the spot by Sub-Inspector Vinay Tyagi. It was witnessed by PW6. He identified his signatures over it and it was marked as Ext. Ka-4. He was put to a lengthy cross-examination. A suggestion was made to him that the police party had prior information of the dead body. He was also given a suggestion that the wards of police officers of Delhi were involved in the incident and that the police did not take any action against them under pressure of higher officers. These suggestions were categorically denied by the witness. He also emphatically denied the suggestion that the body was not discovered on the pointing out of the accused.
52. During cross-examination, the defence tried to dent the testimony by reading over his statement under Section 161 Cr.P.C. in which the factum of dead body lying near the roots of Shahtoot tree, with slippers near it, was not mentioned. The above omission in statement under Section 161 is not of much significance, so as to raise suspicion and reject the otherwise consistent statement relating to recovery of the dead body on the pointing out of the accused persons.
53. There is enough evidence on record to establish presence of C1, C2 and C3 at the place and time from where the dead body of the victim was recovered. The said place was a deserted place. The body was dumped in a pit so that it remains beyond public gaze.
54. Avinash Dixit, SOG Incharge, Agra (PW-3) stated that at about 2 p.m. information about recovery of dead body was given to Police Station, Dilshad Garden. While paper work was in progress, a big crowd gathered at the site after coming to know of the incident. The crowd got infuriated on coming to know of the incident and started beating the accused. While controlling the mob, the police party also received injuries. Atul Tyagi, Investigating Officer (PW-6) in his examination-in-chief also narrated the episode relating to attack on C1, C2 and C3 by the general public. In his cross-examination, he stated that the police party remained at the site of recovery of body for about 2 - 2 ½ hrs. After about 15-20 minutes a crowd assembled there. The police succeeded in driving the crowd away from the site. There was no suggestion to the witness that crowd had not assembled or that it did not get charged with anger and emotions or that the police party present there had a tough time in controlling them. There was no suggestion that the accused persons were not present at the place and time of recovery of body of the victim, rather a suggestion was made that the public got angry after coming to know that innocent persons were being falsely implicated and it was for the said reason they attacked the police party, resulting in injuries. There is on record injury reports of C1, C2 and C3, all dated 25.02.2004 as well as injury reports of SI Atul Tyagi and Majid Khan, also of the same date and the doctor's note mentions about history of physical assault on C1, C2 and C3 and their having received simple but multiple bruises and injuries on various parts of their body. In case of Sub-Inspector Atul Tyagi and Majid Khan, the medical report mentions about history of physical assault and pain in right hand and other parts of the body. Although the medical reports were not proved by examining the doctor but even if the same are ignored, the ocular evidence on record conclusively proves that C1, C2 and C3 were present at the site of recovery of body; that a mob assembled while the police party was busy in completing legal formalities; that the mob got charged with emotions and made an attack and that police had tough time in controlling the mob.
55. Thus, while the confessional statements Ext. Ka 1, 2, 3 are not admissible as a whole, but the limited part which led to discovery of dead body is admissible under Section 27 of the Evidence Act. The prosecution has been successful in proving that dead body of the victim was discovered on the pointing out of the accused appellants. The discovery was from a deserted place. The body was found dumped in a hole caused by uprooting of a shehtoot tree, apparently in an attempt to destroy evidence of crime and thus escape from the clutches of law.
Medical Evidence- Whether corroborates the prosecution story ?
56. Post mortem report is Ext Ka-15. It has been proved by Dr. S. Lal (PW-5) who conducted the post mortem. According to the post mortem report and statement of PW-5, there were several ante mortem and post mortem injuries. They are as follows:-
Ante-mortem Injury "1. Reddish abrasion 0.4 x 0.1 cm present over Rt above of nose.
2. Reddish abrasion 0.4 x 0.2 cm present over Lt above of nose.
3. Linear scratch abrasion 1 x 0.1 cm present Lt side of neck, just lateral to midline 5.0 cm above the mid point of clavicle.
4. Linear scratch abrasion 1.5 x 0.1 cm present Lt side neck, 2.0 cm lateral to midline and lower end of wound 4.0 cm above the mid point of clavicle.
5. Linear scratch abrasion 1 x 0.1 present Lt side of neck, 5.5 cm lateral to midline and upper end, i.e. 4.0 cm below the angle of mandible.
6. Linear scratch abrasion 1 x 0.1 cm present Lt side of neck and 5.0 cm above the clavicle, and 3.5 cm lateral to midline.
7. Linear scratch abrasion 1.2 x 0.1 cm present on Rt side of neck, 0.5 cm above the ligature mark and 3.0 cm below the angle of midline.
8. Reddish abrasion associated with bruise in size of 1.5 x 0.5 cm present Lt side of upper lib.
9. Reddish abrasion association with bruise in size of 2.0 x 0.5 cm present Lt side of lower lib.
10. Reddish bruise 0.7 x 0.4 cm present on tip of chin."
Post Mortem Injuries:-
"Neck circumference : 28 cm.
A Black colour nylon shoe lash wrapped double around the neck. After cutting the ligature material opposite to throat, a grooved pale ligature mark present around the neck, horizontally placed, complete, above the thyroid cartilage.
In front it is 0.8 broad and 5.0 c.m. below the chin going horizontally back on Rt side of neck, where it is 0.8 cm broad and 3.0 cm below the angle of mandible on left side it is 0.7 cm broad and 3.0 cm below the angle of mandible and going back of neck, where it is 0.8 cm broad and 6.0 cm below the occipital protuberance. After fine dissection of neck, no subcutaneous haemorrhage and extravasation of blood in soft tissue of neck seen and underlying bone are intact."
57. According to the post mortem report, the time since death was about 2-3 days and cause of death was axphyxia as a result of ante-mortem smothering. Ext Ka-10 which is recovery memo of dead body reveals that left eye of the victim was found damaged. A black thread (lace of shoe) was found tied around his neck. The body was exhumed from a pit caused by uprooting of a tree. The witnesses Rakesh Mittal (PW-1) and SI Vinay Tyagi (PW-6) have duly proved the recovery memos (Ext. Ka-10). The statement of PW-1, PW-3, PW-5 and PW-6 fully supports the prosecution case that the cause of death was a result of ante-mortem smothering and the time since death was about 2-3 days from the date and time when post mortem was conducted. The post mortem was conducted on 26.02.2004 between 11:10 a.m. to 12:20 p.m. It would mean that the victim was done to death sometime on 24.02.2004. It fully supports the prosecution case that when they went to the spot on the pointing of the accused persons on 25.02.2004 in the after noon, they found the dead body dumped in a pit caused by the uprooting of a tree.
58. Thus, the medical evidence fully corroborates the prosecution case that the victim was done to death a day prior to the arrest of the accused-appellants.
59. The next incriminating circumstance is the recovery of Sim Card and (Nokia) mobile phone from the accused, which were used in making ransom calls. We thus proceed to delve on the said aspect.
Recovery of Sim card and Mobile Phone:-
60. According to the recovery memo Ext Ka 5, a SIM Card of Hutch Company (bearing Number 20012453451) of mobile No.9899580426 was recovered from the right pocket of pant of C1 at the time of physical checking on 25.02.2004. The recovery memo is witnessed by SI Atul Tyagi (PW-6) SI, Avaneesh Dixit (PW-3) and Rakesh Mittal (PW-1). PW-10 is Gulshan Arora who was Nodal Officer in Hutch Company. He produced the CDR of Mobile No.9899580426 before the court. He stated that the CDR is automatically generated by the computer and is preserved and maintained in normal and ordinary course of business. He further stated that it bears the seal of the Company and his signatures. It was marked as Ext Ka 29. In his cross-examination, he stated that a copy of the CDR was also provided to the Investigating Officer in pursuance of request made by SSP by his letter dated 2.04.2004. He also stated that every mobile set has a unique IMEI number. The first fourteen digits of IMEI number always match. He further stated, after perusing Ext. Ka 29, that mobile No.9899580426 was used in three different mobile sets.
61. Ext Ka-29 (CDR) reveals that on 22.02.2004 call was made from mobile No. 9899580426 to phone no.05622363149 (land line number of PW-1) at 22-56-49 hrs and it lasted for 279 seconds and another on 23.02.2004 for 457 seconds. It also shows that the mobile set with which these calls were made was having IMEI No.3514796009891419. It further reveals that three more calls were made from the same mobile number to the land line number of PW-1 on 24.02.2004 with some other mobile set having IMEI No.4491255534167046.
62. Ext Ka-6 is recovery memo of mobile phone from Manoj Sharma on 25.02.2004 at the time of his arrest. It is a Nokia mobile set model 3319 of blue and grey colour with IMEI No.351479600989140. The first fourteen digits i.e. 35147960098914 matches with the IMEI of mobile No. 9899580426 as got recorded in the CDR.
63. As noted above, PW-10 in his statement clarified that the first fourteen digits of IMEI number always matches. He was not cross-examined by the prosecution on the said aspect.
64. In State (NCT of Delhi) Vs. Navjot Sandhu Alias Afsan Guru, (2005) 11 SCC 600, the same aspect was considered by the Supreme Court. In that case, the seized mobile set was having first fourteen digits of IMEI numbers of the mobile phone matching with the call records. The subsequent numbers did not match. The Supreme Court while dealing with the said discrepancy, relied on statement of Manager of the Mobile Company who deposed that out of fifteen digits, one digit is a spare digit and according to GSM specifications, it is transmitted as "0". The relevant passage where the said aspect was considered is reproduced below:-
"195. One more point has to be clarified. In the seizure memo (Ext. 61/4), the IMEI number of Nokia phone found in the truck was noted as 52432. That means the last digit '2' varies from the call records wherein it was noted as 52430. Thus, there is a seeming discrepancy as far as the last digit is concerned. This discrepancy stands explained by the evidence of PW 78 a computer Engineer working as Manager, Siemens. He stated, while giving various details of the 15 digits, that the last one digit is a spare digit and the last digit, according to GSM specification should be transmitted by the mobile phone as '0'. The witness was not cross-examined."
65. The recovery memo of SIM Card and Nokia mobile were duly approved by Rakesh Mittal (PW-1), SI Atul Tyagi (PW-6) and SI Avnish Dixit (PW-3). The above evidence supports the prosecution story that SIM Card recovered from Piyush Gupta (C1) was used in making calls from Nokia phone recovered from Manoj Sharma (C3) to the land line number of PW-1. PW-1 in his statement categorically stated that these calls were received for demanding ransom money from him. As discussed in latter part of the judgement, the audio recording corroborate the statement of PW-1 that the kidnappers demanded ransom money from him for releasing the victim.
66. Although the police has failed to recover other mobile set with IMEI No.4491255534167046 from which also calls were received on 24.02.2004, but the same is not fatal to the prosecution case as the police had succeeded in recovering at least one mobile phone and that too, from the custody of one of the co-accused by which ransom calls were made on 22.02.2004 and 23.02.2004.
67. Learned counsel for the appellants submitted that the recoveries were planted and the recovery memos were prepared sitting at the police station. There was no public witnesses to the alleged recovery. The said aspect has been specifically dealt with by the trial court and while placing reliance on several judgments of the Supreme Court and different High Courts, it has rightly been observed that merely because the recoveries were not witnessed by member of general public, its authenticity cannot be doubted.
68. In State of U.P. Vs. Anil Singh, 1989 SCC (Cri) 48, the Supreme Court considered the fact that generally the public at large is reluctant to be a witness in criminal proceedings done by the police to obviate interrogation and appearance before the court. It was observed that keeping in mind the above factual reality, it is not necessary to have public witness. A similar contention was repelled in Ram Swaroop Vs. State (Govt. of N.C.T. of Delhi) (2013) 14 SCC 235, as follows:-
"10. Keeping in view the aforesaid authorities, it can safely be stated that in the case at hand there is no reason to hold that non-examination of the independent witnesses affect the prosecution case and, hence, we unhesitatingly repel the submission advanced by the learned counsel for the appellant."
69. PW-6 in his statement disclosed that the police party requested members of the public to be part of the raiding party but no one was ready for that. In such circumstances, the police officers themselves have to witness of arrest and recoveries. It is noteworthy that the recoveries made from the accused-appellants were huge. We have already held that prosecution has been successful in proving that on pointing out of the accused-appellants, the dead body of the victim was recovered from a pit at an isolated place. The prosecution has also successfully proved the presence of the accused-appellants at the site of recovery of dead body. The recovery of Sim Card and mobile phone from C1 and C3, used in making ransom calls, corroborates the prosecution case that the crime was committed by them. The accused-appellants were nabbed by the police while all the three were going towards Karkardooma court on motorcycle No.DL-55 M- 6977 (Ext.Ka-7 seizure memo).
70. In the above facts and circumstances, the authenticity of the recoveries made from the accused cannot be doubted, merely for the reason that there was no public witness.
71. Thus, the prosecution has successfully proved that Sim Card of mobile No.9899580426 recovered from C1 and Nokia mobile having IMEI No.3514796009891419 recovered from C3 were used in making ransom calls to land line number (0562) 2363149 of PW-1.
72. One more submission of learned counsel for the appellants was that the prosecution had not produced Seimens and Motorola mobile sets in court and it demolishes the prosecution case. It was also submitted that statement of prosecution witnesses regarding these sets is at variance and contradictory. We have held above that Nokia mobile set recovered from the accused-appellants was used in making ransom calls. The IMEI numbers in the CDR were not matching with the other mobiles seized from the accused. Therefore, non-production of other mobile sets was in no manner fatal to the prosecution case. Likewise, any minor variation in the statement in relation to these mobile phones does not create any doubt in the prosecution story.
Evidentiary Value of Tape Recording and Transcript: -
73. Seizure memo of audio cassette (Ext. Ka-11) mentions that audio cassette (Mat. Ext. III) was handed over by PW-1 to the police in presence of witnesses Rajendra Prasad (PW-2) and Vijay Gopal @ Kalloo (not examined). PW2 stated that the seizure memo was prepared in his presence. He identified his signatures on the same. The trial court has recorded finding that the audio cassette was heard by it on 5.8.2006 and by his predecessor on 18.5.2006. The transcript matches with the conversation recorded, except for some minor variations. The trial court also held that it contained voice of PW1, his wife and the abductors. The relevant extract from the judgement of trial court, on above aspect, is as follows:-
"-----eSaus Lo;a Hkh fnukad 5&8&06 dks mDr vkfM;ks dSlSV U;k;ky; esa lqukA ys[kc) fooj.k o okRkkZyki esa dqN ekewyh vUrj gS ysfdu og egRoiw.kZ izd`fr ds ugha gS] dsoy lqudj fy[kus esa dqN 'kCnksa dk vUrj gSA ewy Hkko tks dSlsV esa Fks os ys[kc) fooj.k esa Hkh gSA VsyhQksu okrkZ esa vfHk;ksxh jkds'k dqekj feRry] mldh iRuh] vig`r xkSjo o ,d vfHk;qDr ¼eukst 'kekZ½ dh ckrphr fjdkMZ gS ftlesa fQjkSrh dh ekax ds lEcU/k esa gS vkSj fQjkSrh dh /kujkf'k ij eksy Hkko lEcU/kh ckrphr gSA vfHk;qDr ikWp yk[k :i;s dh ekWx dj jgk gS vkSj vfHk;ksxh de nsus dh ewy :i ls ckr dj jgs gSaA vfHk;ksxh o mldh iRuh vius iq= ls ckr djkus ds fy;s fxM+fxM+k jgs gSaA fnukad 22&2&04 dks jkr 10&56 cts dh okrkZyki esa vfHk;qDr us xkSjo dh jkds'k feRry ls ckr Hkh djk;h gS] ysfdu xkSjo dsoy Þvki dkSuß vkSj Þgyks ikikß 'kCn gh cksy ik;k vkSj vfHk;qDr us blls vf/kd ckr ugha djkus nhA vfHk;qDr dh vksj ls ;g rdZ fn;k x;k gS fd ;fn xkSjo dh mlds firk ls ckrphr gqbZ Fkh rks og ih;w"k dk uke crk ldrk Fkk ysfdu vksfM;ks dSlsV o okrkZyki esa xkSjo dks dsoy nks 'kCn cksyus dk volj fn;k x;k Fkk] ,sls esa ih;w"k dk uke crkus dk volj ugha FkkAß
74. Learned counsel for the appellants contended that the voice in the audio cassette was not got matched and therefore the trial court erred in relying on the same.
75. In the case of Yusufalli Esmail Nagree Vs. State of Maharashtra, (1967) 3 SCR 720, the appellant was convicted under Section 165-A of the Indian Penal Code. Here, the Hon'ble Supreme Court admitted tape recordings as evidence. It was held that the time, place and accuracy of the recording has to be proved by a competent witness and the voice of the speaker must be clearly identifiable. The court also noted that since magnetic tape recordings can easily be subjected to tampering, great caution needs to be exercised while admitting them as evidence.
76. The court also held that to establish reliability in the recordings it has to be ensured that the said recording has been preserved and prepared safely by an independent authority, the police and not by any party to the case.
77. In the case of R.M. Malkani Vs. State of Maharashtra, (1973)1 SCC 471, the Supreme Court laid down broad guidelines relating to admissibility of a recorded conversation as follows:-
"Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice'; and. thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act."
78. Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 571, is a case where the appellant, an election candidate, was accused of corruption charges and to maliciously influence the people to vote for him, otherwise there will be "divine displeasure or spiritual censor" if they vote for the opponent. In the above context, the court while examining the issue of admissibility of tape recorded speeches, held that tape recordings of speeches will hold the same value as a "documents" under section 3 of the Indian Evidence Act, 1972 and stands on same footing as that of "photographs". The Supreme Court also laid down the conditions for making the tape recordings admissible. These are:
"1. Voice of the speaker must be duly identified by the one who recorded and who knows it.
2. The accuracy of the recording has to be substantiated by the maker of the record and satisfactory evidence has to be there, direct or circumstantial to prove that the record cannot be tempered with.
3. The subject matter of the recordings has to pass the test of relevancy as provided in the Indian Evidence Act, 1972."
79. In the instant case, the prosecution did not make any effort to identify the voice in the tape recorded conversation. In the impugned judgment, the trial court relied on the confessions of the accused Ext. Ka-1, 2 and 3 respectively in holding that the accused therein admitted having demanded ransom money over telephone. They also stated that the ransom money was demanded by use of mobile phone by accused Manoj Sharma. PW-1 Rakesh Kumar Mittal no doubt was in a position to recognize his own voice and that of his wife and son (victim), however, Manoj Sharma was not known to him in the past and, therefore, he did not recognize his voice. The only evidence relating to identification of voice of Manoj Sharma in the audio cassette is his alleged self incriminating confession, which has already been held to be inadmissible in evidence. However, the audio recording definitely proves that PW-1 and his wife were begging for release of their son and found settling the ransom. It corroborates the prosecution story that ransom calls were made by the abductors and PW-1 and his wife had to bargain with them. The audio recording is undoubtedly admissible to the limited extent that there was demand of ransom money from PW-1 and his wife.
80. Learned counsel for the appellants submitted that when victim had the occasion to converse with PW-1 and his mother on phone, and had he been in custody of C1, whom he recognised, he would have immediately revealed his name. The argument is specious and is to be rejected. The trial court rightly noted that the abductors permitted the victim to say few words only to ensure that his family comes to know of his abduction and that he was alive so as to agree to the demand of ransom. The abductors ensured that victim did not talk beyond few words so that he does not get opportunity to disclose the name of the abductors.
81. One other contention of learned counsel for the appellants was that Test Identification Parade (TIP) was not done and therefore, the prosecution has failed to establish the identity of the accused-appellants.
82. In Raju Manjhi Vs. State of Bihar (2019) 12 SCC 784, the Supreme Court held that a Test Identification Parade is a step in aid of investigation. There is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. Weight to be attached to such identification would be a matter for courts of fact. In appropriate cases, the court may accept the evidence of identification even without insisting on corroboration. In that case, the accused were charged of offence of dacoity. The role of appellant was that of guarding the house from outside with another accused while dacoity was being committed inside the house. The accused-appellant confessed that he alongwith another accused were guarding the house from outside while the other was committing the theft. At the behest of the appellant and other accused, recovery of several incriminating articles was made. The confessional statement of the appellant was held to be admissible in so far as it satisfied the test of Section 27 of the Evidence Act. In the said backdrop, it was held that test identification parade was not essential to prove the prosecution case. The relevant observations and conclusions are as follows:-
"14. In the case on hand, before looking at the confessional statement made by the accused-appellant in the light of Section 27 of the Evidence Act, may be taken into fold for limited purposes. From the aforesaid statement of the appellant, it is clear that he had explained the way in which the accused committed the crime and shared the spoils. He disclosed the fact that Munna Manjhi was the Chief/Head of the team of assailants and the crime was executed as per the plan made by him. It is also came into light by his confession that the accused broke the doors of the house of informant with the aid of heavy stones and assaulted the inmates with pieces of wood (sticks). He categorically stated that he and Rampati Manjhi were guarding at the outside while other accused were committing the theft. The recoveries of used polythene pouches of wine, money, clothes, chains and bangle were all made at the disclosure by the accused which corroborates his confessional statement and proves his guilt. Therefore, the confessional statement of the appellant stands and satisfies the test of Section 27 of the Evidence Act.
15. As regards the claim of appellant that non- identification of the accused by the witness would not substantiate the prosecution case, admittedly no prosecution witness has identified the accused--appellant which does not mean that the prosecution case against the accused is on false footing. As a general rule, identification tests do not constitute substantive evidence. The purpose of identification test is only to help the investigating agency as to whether the investigation into the offence is proceeding in a right direction or not. In our view, non-dentification of the appellant by any prosecution witness would not vitiate the prosecution case. It is evident from the confessional statement of the accused that at the time of occurrence he and another accused Rampati Manjhi were guarding outside the informant's house while other accused were committing dacoity inside.We do not think that there is any justification to the argument that as none of the prosecution witnesses could be able to identify the appellant, he cannot be termed as accused. In our view, such non- identification would not be fatal to the prosecution case in the given facts and circumstances.
16. The identification parade belongs to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration [See : Kanta Prashad v. Delhi Administration, 1958 CriLJ 698 and Vaikuntam Chandrappa and Ors. v. State of Andhra Pradesh, AIR 1960 SC 1340]."
83. In the instant case, PW-9 who had seen the victim in company of accused-appellants on 19.02.2004 knew C1 from before. He stated before the court that if two other accused come before him, he is in a position to identify them. Thereafter he identified them in the court. The statement of PW-9 was recorded in court on 13.12.2005 i.e. shorty after the incident. The dead body of the victim was recovered on the pointing out of C1, C2 and C3. When they were arrested by the police, they were riding the same motorcycle. As already discussed above, all the three accused received injuries as the mob attacked them while inquest and other proceedings were in progress at the place where the body was dumped by them. All the above, evidence leaves no manner of doubt that all three of them were involved in the abduction and killing of the victim, as such the contention that the prosecution case stands vitiated, as TIP was not held, is wholly untenable.
84. The theory of false implication also does not hold any ground. In case, PW-1 had to falsely implicate the accused-appellants, he could have lodged a named F.I.R. against them. But, as noted above, he initially lodged a missing report. Thereafter, when evidence of ransom calls surfaced, the police registered the missing report as F.I.R. u/s 364-A IPC against unknown persons. In case there was any ill motive to falsely implicate the accused, PW-1 could have pointed his finger of suspicion towards them and the police would have named them in the F.I.R. But it was not done. The accused-appellants were named when during investigation police succeeded in apprehending them with incriminating evidence.
85. The recovery of Nokia mobile phone from the pocket of C3 and Sim from the pocket of C1, their use in making ransom calls on the land line of PW-1, discovery of body of the victim on the pointing out of C1, C2 and C3 unerringly completes the chain of events leading to the guilt of the accused-appellants. The prosecution has been successful in proving the role of C1, C2 and C3 in commission of crime beyond all reasonable doubts and in excluding all other possible hypothesis.
86. Thus, there is overwhelming evidence on record to prove that:-
(1) the accused appellants had kidnapped the victim and kept him in detention after such kidnapping.
(2) demanded ransom.
(3) intentionally caused bodily injury knowing that the injuries were sufficient in ordinary course of nature to cause death, and (4) knowing that they had committed grave offence, dumped the body of the victim at an isolated place in a hole caused by uprooting of tree, with the intention of destroying evidence and screening themselves from legal consequences.
87. The aforesaid acts and omissions on part of the accused appellants clearly brings them within the clutches of Section 302 and 201 IPC. In relation to offence under Section 364 IPC, for which also they have been convicted by the trial court, it is contended on behalf of the appellants that since according to prosecution story, the victim was killed not because of non-payment of ransom, but because of fear of being caught and as such, offence under Section 364-A IPC is not made out.
88. Elaborating their submissions, learned counsel for the appellants submitted that Section 364-A IPC has three distinct components, namely: -
"(i) the person concerned kidnaps or abducts or keeps the victim in detention after kidnapping or abduction;
(ii) threatens to cause death or hurt or causes apprehension of death or hurt or actually hurts or causes death; and
(iii) the kidnapping, abduction or detention and the threats of death or hurt, apprehension for such death or hurt or actual death or hurt is caused to coerce the person concerned or someone else to do something or to forbear from doing something or to pay ransom........................"
89. It is submitted that in the instant case, although first ingredient may be present, but in the absence of evidence that the victim was killed for extracting ransom or for not paying the ransom, offence under Section 364-A IPC is not made out. In support of the above contention, reliance has been placed on judgment of Supreme Court in Criminal Appeal No. 533 of 2021 (Shaik Ahmad vs. State of Telangana), decided on 28.6.2021. In para 12 of the said judgment, the Supreme Court has mentioned the ingredients of Section 364-A as follows: -
"(i) "Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction"
(ii) "and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt,
(iii) or causes hurt or death to such person in order to compel the Government or any foreign State or international intergovernmental organisation or any other person to do or abstain from doing any act or to pay a ransom"
(iv) "shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
90. In para 21 of the said judgment, the Supreme Court has given the following interpretation: -
"21. Thus, applying the above principle of interpretation on condition Nos. 1 & 2 of Section 364-A which is added with conjunction "and", we are of the view that condition No.2 has also to be fulfilled before ingredients of Section 364-A are found to be established. Section 364-A also indicates that in case the condition "and threatens to cause death or hurt to such person" is not proved, there are other classes which begins with word "or", those conditions, if proved, the offence will be established. The second condition, thus, as noted above is divided in two parts- (a) and threatens to cause death or hurt to such person or (b) by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt."
In para 33 and 34, the Supreme Court has concluded as follows ; -
"33. After noticing the statutory provision of Section 364-A and the law laid down by this Court in the above noted cases, we conclude that the essential ingredients to convict an accused under Section 364-A are required to be proved by prosecution are as follows:-
(i) Kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction; and (ii) threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or;
(iii) causes hurt or death to such person in order to compel the Government or any foreign State or any Governmental organization or any other person to do or abstain from doing any act or to pay a ransom.
34. Thus, after establishing first condition, one more condition has to be fulfilled since after first condition, word used is "and". Thus, in addition to first condition either condition (ii) or (iii) has to be proved, failing which conviction under Section 364-A cannot be sustained."
91. In the instant case, there is no dispute that the first condition is fully proved. Now, according to the law laid down by Supreme Court, either of the second or third condition has to be proved to sustain conviction under Section 364-A IPC. In respect of Condition No. 2, there is no evidence. It is thus to be seen whether Condition No. 3 is attracted to complete the offence under Section 364-A IPC.
92. It is not in dispute that in the instant case, the victim was put to death even before ransom was realised. The prosecution case that the victim was put to death as the accused appellants were afraid of getting caught, developed during course of investigation as the story unfolded and the accused appellants were alleged to have confessed to the above effect.
93. We have already held that the confessional statement of accused appellants is not admissible, being hit by Section 25 and 26 of the Evidence Act, except the portion which led to recovery of the dead body. Thus, in effect, there is no evidence on record to establish that the victim was killed by the accused appellants to save themselves from being identified and punished.
94. Now it has to be seen whether the kidnapping followed by murder was with intent to compel the family of the victim to pay a ransom, which if proved, would establish the third ingredient.
95. It is noteworthy that the kidnapping was done at Agra which comes within dacoity affected areas. It is for the said reason that the accused appellants were tried by the Special Court (D.A.A.), Agra, constituted under Section 5 of the Uttar Pradesh Dacoity Affected Areas Act, 1983. Section 26 of the Act confers exclusive jurisdiction on the special court in respect of any action taken or to be taken in pursuance of any power conferred by or under the said Act. Section 27 of the said Act raises a presumption in trial of scheduled offences under the Act. It provides that where it is proved that the accused has kidnapped or abducted any person from dacoity affected area, it shall be presumed, unless the contrary is proved, that the accused has kidnapped or abducted such person for ransom.
96. Section 27 is quoted in verbatim for ready reference:-
"27. Presumption in respect of kidnapping and abduction. - In any trial of scheduled offence under this Act where it is proved that -
(i) the accused has kidnapped or abducted any person from dacoity affected area, it shall be presumed, unless the contrary is proved, that the accused has kidnapped or abducted such person for ransom,
(ii) the accused has wrongfully concealed or confined any person kidnapped or abducted from dacoity affected area, it shall be presumed, unless the contrary is proved, that the accused has concealed or confined such person knowing that such person has been so kidnapped or abducted."
97. The offence of kidnapping or abducting any person for ransom is specifically covered under Item No.(ii) of the Schedule. Therefore, a presumption arises under Section 27 that the kidnapping was done with the motive to realise ransom. The accused-appellants have not led any evidence to the contrary to discharge their burden of proof. Consequently, in the facts of the instant case and also in view of Section 27 of the U.P. Dacoity Affected Areas Act, 1983, a presumption can safely be drawn to the effect that kidnapping was done for ransom and thus, we are of considered opinion that condition no.3 also stands fulfilled.
98. Accordingly, we uphold the conviction of the appellants under Section 302, 364-A and 201 IPC as recorded by the trial court. The sentence and fine in respect of offences under Section 302, 364-A and 201 IPC, as awarded by the trial court, are also maintained, in absence of any mitigating or extenuating circumstances being placed before us. In almost similar facts and circumstance, the Supreme Court upheld the conviction and life sentence of accused in Sonu @ Amar Vs. State of Haryana, 2017 (8) SCC 570 and Shyam Babu and others Vs. State of Haryana, 2008 (15) SCC 418.
99. The punishment of life sentence death for offences under Section 364-A and 302 IPC was held to be just, fair and reasonable by the Supreme Court in Vikram Singh @ Vicky Vs. Union of India, (2015) 9 SCC 502.
100. We do not find the instant case to be the rarest of rare cases so as to convert sentence of life imprisonment to capital punishment.
101. In the result, all the appeals, revision and Government Appeal stand dismissed. The judgment be communicated to the court concerned forthwith.
102. Let a copy of this order be placed on record of each case.
Order Date :- 25.7.2022 SL/SKV/Jaideep (Om Prakash Tripathi, J.) (Manoj Kumar Gupta, J.)