Patna High Court
Rajiv Kumar Alias Lala And Ors. vs State Of Bihar on 30 March, 1996
Equivalent citations: 1996(2)BLJR1392
Author: Prasun Kumar Deb
Bench: Prasun Kumar Deb, Surinder Sarup
JUDGMENT Prasun Kumar Deb, J.
1. All these criminal appeals have arisen out of the judgment and order dated 6.10.1994 and 7.10.1994 passed by Shri S.N. Choudhary, VII Additional Judicial Commissioner, Ranchi, in S.T. No. 262 of 1993 convicting the accused-appellants under Sections 364/34, 302/34 of the I.P.C. and also under Sections 201/34 I.P.C. along with Section 120 B of the I.P.C. They were sentenced to rigorous imprisonment for life and also to undergo R.I. for seven years under Section 201/34 I.P.C and sentences were ordered it run concurrently.
2. Prosecution case in brief is that the accused-appellant five in number alongwith one Kamlesh Kumar, who was also tried alongwith these accused persons jointly and acquitted afterwards made a conspiracy for kidnapping the child of a moneyed person for getting ransom from the parents and in that process out some mistake, one boy of 6/1/2 years old Guddu residing with his parents at Harihar Singh Road, Ps-Bariatu was kidnapped by the accused persons alongwith Kamlesh Kumar and when the error could be detected, the boy was killed by strangulating him through neck and then the deed body was thrown into a well in a deserted place called Chachani Bagan alias Imam kothi within Sadar Police Station of Ranchi district.
3. In details, it can be stated that on 23.12.1992 at about 9.30 a.m. Guddu when came out from his house for playing, he was enticed away by accused Nandan and Gopal Ram being accompanied by other accused Om Prakash, Salyawan and Lalu. Then he was taken to Chachani Bagan and the dead body was thrown into well thereafter killing him by throtling. When Guddu did not return home even in the late evening, Sheo Ram Mishra, PW-7, father of Guddu made a missing report with the police Station. They went on searching Guddu and tried to contact Nandan and Gopal Ram, who were the playmates of Guddu but both, Nandan and Gopal Ram were missing from their houses and it was ultimately found that they absonded. After taking informations from various corners the informant became sure that some mishappening must have been committed with his minor son and on this lodged an information on 26.12.1992 showing his strong suspicion against all these accused persons. It was stated in the Pardbayan that he was informed by his Sister-in-law (elder brother's wife) Sharda Devi (PW-5) that she had seen Guddu going out of the house at about 9.30 a.m. on 23.10.92 followed by accused Nandan and Gopal Ram three unknown persons. He further stated that Guddu was seen near the house of Mathura Singh in Harihar Singh Road being followed by Gopal Ram, Nandan and three unknown persons. On Amit (PW-11) met Guddu on the way and asked him as to where he was going and that Guddathen wanted to flee away from there but he was not allowed to do so by the accused Nandan. It was further alleged that he could learn that the accused Nandan Gopal Ram, Om Prakash, Satyawan and Lalu had jointly kidnapped Guddu in order to murder him. Nandan being a close door was seen many a time in the company of Om, Prakash, Satyawan and Lalu and it was alleged that Nandan had held grudge against the informant for several reasons as when Guddu wanted to take guava from the orchard of Nandan he was threatened and that once Nandan used to play his transistor in High Pitch and when the same was objected to from the informant's house then they were threatened of dire consequences by the accused Nandan. After the Pardbayan was lodged, police started investigation and in course of that accused-appellant, Satyawan, accused, Gopal Ram and (Om Prakash were arrested. Satyawan was arrested from a garage, Om Prakash from his same and Gopal has from his native village at Palamau. All these three accused, it is alleged that made confessional statements incriminating themselves alongwith Nandan, Lalu and Kamlesh. Such confessions were made before the general public while in custody of police and those were then reduced in writing (Ext. 9 series). On the basis of their pointing out, the dead body of Guddu alias Dhiraj was recorded from the well situated in the compound of Chanchani Bagan alias Imam kothi at Dipatoli in the town of Ranchi. On recovery of the dead body, it was found that there were marks of injuries on neck and abrasion on other parts of the body. The dead body was inquested and then the same was sent to R.M.C.H. for post mortem examination. PW-8 and 15 are the doctors, who held post mortem and found the following injuries on the dead body of Guddu alias Dhiraj:
(A) Abrasions
(i) 2*1/2 c.m. over chin.
(ii) 31/2 c.m. over right leg back.
(iii) 3/4 * 3/4 c.m. over right check near right angle of eye.
(iv) 3/4 * 1/3 c.m. over upper lip.
(v) 11/2* 1/2 c.m. over lower Up with associated contusion of upper and lower lips.
There is Infiltration of blood.
(B) Internal Injuries There was contusion of soft tissue in front of neck of both sides of respiratory passage but mere in area of left front of neck. There was contusion of soft tissues (scalp) of the lower part of occipital area of head.
(C) The internal organs are in preserved state and the internal organs are congested. There was no water or forth in the respiratory passage and no forth or frothy fluid came out in cutting the lungs. Tardious spot presence over internal organs.
Opinion:
All the injuries were ante mortem caused by blunt force. Death was due to asphyxia as a result of pressure over neck, mouth and nose. Time since death 02 to 05 days from the time of post mortem examination.
4. It is the case of the prosecution that when accused persons failed in their attempt to have ransom of kidnapping, due to mistake committed in kidnapping Guddu then being bewildered, the boy was killed by throtline either by, Nandan or by Gopal Ram or jointly by them and then to screen themselves from legal punishment they had thrown the dead into the well.
5. Other accused persons, namely, Nandan alias Prashant Kumar Pathak was arrested on 30.12.1992 when he returned to his house and he also made confession in the same line as that of the other three accused persons as mentioned above. Lalu alias Rajeev and Kamlesh were also' arrested subsequently but they did not make confession. Satyawan also made confession in the same line as that of the other accused persons. It is stated from the side of the prosecution that on being pointed out by Om Prakash, Gopal Ram and Satyawan, the dead body of Guddu was recovered from the well.
6. Charges were framed against all the accused persons named above including Kamlesh under Sections 364/302/201/34 I.P.C. and also under Section 120-B of the Indian Penal Code on 22.7.1993, and when the charges were read over and explained to the accused, they pleaded not guilty.
7. For and on behalf of the prosecution, as many as 15 witnesses have been examined in the case. Out of them, PW-1, Paras Nath Jha, PW-2, Nirbhay Kant Jha and PW-3, Satish Chandra Jha and PW-6 Jai Narayan Jha have deposed on the point of confessional statements made by the accused persons, Gopal Ram, Satyawan and also Nandan before the police leading to discovery of the dead body of deceased Guddu. PW-7, Sheo Ram Mishra and PW-9, Sri Ram Mishra, father and uncle of the deceased also deposed in the same line.
It must be mentioned here that PW-7, Sheo Ram Mishra father of deceased is the informant in the case. FW-4, Buchhi Devi and PW-5 Sharda Devi, mother and aunt of the. deceased Guddu and PW-11, Amit, a friend of deceased Guddu were examined to prove the fact that the deceased was last seen with the accused persons on 23.12.1992. As already stated, PW-8 and PW-15 are the doctors, who held post mortem over the dead body of the deceased. PW-14 is the Investigating Officer, PW-10, 12 and 13 are on the point of recovery of key alleged to be the key of the garden Chanchani Bagan. PW-10 is stated to be the witness who had helped police in recovering the dead body from the well, but he has not supported the prosecution case and as such declared hostile. Similarly, PW-11, the friend of Guddu has also been declared hostile.
8. The present case is totally based on circumstantial evidence. There is no eye witness to the occurrence of murder or kidnapping in the real sense and all are based in circumstances alone.
The circumstances are of this nature, namely,
(i) On 23.12.1992 Guddu was seen going away from his house being followed by Nandan and Gopal Ram, who were afterward joined by other three accused-appellants.
(ii) Nandan and Gopal being the neighbours of the deceased were found missing from their houses since 23.12.1992.
(iii) Accused Gopal Ram, Om Prakash and Satyawan made confessions before general public while being arrested and their confessional statements had been recorded by police which are marked as Ext. 9 series.
(iv) On being pointed out by these three accused persons individually and jointly the dead body of deceased Guddu was recovered from the well within the deserted place of Chancliani Began alias Imam kothi.
(v) The accused reasons here occasionally found to have discussions amount themselves which construe their conference regarding conspiracy for kidnapping minor child of a rich person to earn ransom.
9. The defence case is total denial Even the confession made before the police had also been denied by the accused persons. In their statements under Section 313 Cr.P.C., it has been stated that their signatures were taken by police on coercion and on application of third degree method of torture and they had never made any confession before the police. There is also another circumstances to the effect that Chanchani Bagan was under the control of accused, Om Prakash and his father, who happened to the Chowkidar if that area and that a key alleged to be the key of the lock of that Chanchani Bagan was recovered from the house of Om Prakash.
After considering the circumstances, learned court below held that all the circumstances have been proved and they formed chain to conclude the guilt of the accused persons for which charges have been framed against them and as such conviction was recorded and sentenced accordingly.
10. Let us first, of all take the circumstances regarding criminal conspiracy for kidnapping of the minor child Guddu. It is not the case of the prosecution that the accused persons conspired to kidnap Guddu, rather the case of the prosecution is that the accused persons conspired to earn ransom by kidnapping a minor child of a rich person of that locality but due to mistake, in place: of child of a rich person, Guddu was kidnapped. Now the evidence/circumstance regarding such conspiracy is only the alleged confessional statement made by the accused persons before the police. At the very out set it must be said that such statement made before the police incriminating the accused himself along with other co-accused is not admissible in evidence. But it is submitted by Mr. S.N. Rajgarhia, appearing for and on behalf of the prosecution that such circumstance appeared from the mouth of an accused can be made admissible under Section 10 of the Evidence Act (for short 'the Act') having the exception from Section 24 and 25 of the Act. It is the settled principle of law that Section 10 does not apply to incriminating statements made by accused to the police in course of investigation whether they incriminate themselves or others. Section 10 of the Act only relates of things said or done by conspirator in reference to common desigri. Even if such statement made by the co-accused during the course of investigation before the Investigating agency is said to be relevant fact them also that alone cannot bind the makers of that statement along with other co-accused on the basis of such statement alone that relevant fact might be taken into consideration if coupled with other circumstance or evidence available. Moreover the design as admitted by the prosecution was for kidnapping a minor child of a rich person of the locality to earn ransom. It is not that on the basis of such design Guddu was kidnapped rather it is the case of the prosecution that by mistake Guddu was kidnapped. Whether the kidnapping was proved or not or whether there was a mistake on the part of the common designers, there is lack of evidence as would be discussed later on but the fact remains that the criminal conspiracy as there be it is to be proved by the prosecution that there was a meeting of mind between the accused persons to commit the offence to. fulfil their common desire and design but that could not be proved. The independent witnesses have only stated that these accused persons were sometimes seen sitting together and gossiping amongst themselves. What was the topic of such gossiping has not been brought on evidence by any witness whatsoever So I do not find that criminal conspiracy as said to be proved as a circumstance relevant to the offence of murder could be proved beyond all reasonable doubt.
11. as regards kidnapping of Guddu is concerned, there is no evidence except the statement of the Investigating Officer that he could gather materials during the course of investigation that Guddu was enticed away by the accused Gopal and Nandan and then the other three accused persons joined them on the way, but what is the evidence in support of such statement made by the Investigating Officer. It is stated by the informant i.e. the father of Guddu and other relatives of the deceased that on the date of occurrence when Guddu came out from the house, he was seen going away on being followed by Nandan and Gopal and other three accused persons joined them after some distance. But what is the source of knowledge of those witnesses? The source of knowledge is gathered from P.W. 5 (Sharda Devi) who happens to be Aunt of the deceased. She stated that when she was standing on the drain outside her house, she saw Guddu coming out his house and he was being followed by Nandan and Gopal and she stated that the other three unknown persons had joined them afterwards. She did not state that she had disclosed the names of those two others. So the joining of other three accused persons with Nandan and Gopal in taking away Guddu could not be proved. This much can beat gathered that Guddu was last seen in the company of Nandan and Gopal. The friend of Guddu P.W. 11 Amit turned hostile and he was confronted with the statement under Section 161 of the Code of Criminal Procedure before the police that he saw Guddu going away with Gopal and Nandan but he stated that he saw Guddu playing in the field at about 10.30 A.M. P.W. 4 Buchhi Devi, the mother of Guddu, stated that she was informed by her Gotni meaning thereby P.W. 5 Sharda Devi that Guddu had gone out of his house along with Nandan and Gopal. It is stated and has been brought in evidence that both Nandan and Gopal are the neighbours of Guddu and they were his playmates, but I do not find that this evidence of 'play-mates' has got much relevance as there two accused persons are much older than Guddu. Be it what it may, the fact remains that Guddu had much acquaintance with these two accused persons. So regarding the kidnapping, there is practically no evidence. There is also no evidence of the enticing away by either Nandan or Gopal, but only this much be brought in evidence that Guddu was last seen in the company of Nandan and Gopal.
12. Let me now discuss about the evidence regarding the recovery of the dead body of Guddu from a well in a deserted place near Imam Kothi alias Chancham Bagan. Mr. P.S. Dayai by referring the evidence tried to impress upon this Court that Chanchani Bagan and Imam Kothi are the two different places and the prosecution is not pin-pointing as wherefrom the dead body was really recovered, but on close scrutiny of the evidence on record. I could find that the dead body was recovered from a well situate in a deserted place named Imam Kothi of which the father of the accused Om Prakash was Caretaker. Now who are persons and at whose instance the dead body could be recovered?
13. It is a clear and specific case of. the prosecution that Gopal, Om Prakash and Satyawan who were arrested on 27.12.1992 made their confessions before the police and also before the general public which were recorded by the Investigating Officer and were marked as Ext. 9 series and as per their statements, the police was led to the well in the Imam kothi and on being shown one by one by the three accused persons, the dead body could be recovered from inside the well. But it appears that the confessional statement of Gopal was recorded on 27.12.1992 at 11.30 A.M. but there is no time mentioned., As regards the statements recorded regarding the accused Satyawan and Om Prakash. But it is stated by the Investigating Officer that their statements were recorded after the statement was made by Gopal, so Gopal's statement was first in time and it can very well be presumed that on his statement, the police was led to the well from where the dead body was recovered. If he had first of all shown the place then the subsequent showing by the other two accused persons have no relevance. "The statement of Gopal regarding recovery of the dead body is a relevant fact and such statement is admissible under Section 27 of he Act. Thus it can be found that on Gopal's statement, the dead body of Guddu could be recovered from inside the well. There are some confusion and contradiction regarding as to who first went inside the well1 to take out the dead body but that has got no much relevance when substantially it could be proved that the dead body was recovered from a well and then after inquest, it was sent for post mortem examination.
14. Mr. P.S. Dayal, appearing for and on behalf of accused-appellant Om Prakash has in strenuously argued that the inquest report does not disclose as to the recovery of the dead body on being shown by any of the accused a persons and as such subsequent maneuvering regarding the statement of the accused persons can well be inferred. He has further referred to the order dated 28.12.1992 in the records of the Chief Judicial Magistrate that when three accused persons as mentioned above were forwarded, then injuries were found on their persons and the Chief Judicial Magistrate referred them to jail Doctor for treatment. According to Mr. Dayal, such order sheet rather proves the fact, that the accused persons had been made to suffer third degree torture at the hands of the Investigating agency for procuring the so-called confessional statement. Confessional statement has got no bearing when the same was made before the police personnel but the three accused persons had denied to make statement before the Magistrate under Section 164 of the Code of Criminal Procedure regarding their confession. There might be some torture on the accused persons but the fact remains that till then it was not known where the dead body was lying and definitely accused Gopal must have disclosed first as to where the dead body was lying and on his confession, the police was led and the dead body was recovered. At least this much of evidence is not only admissible but could be proved beyond all reasonable doubt from the side of the prosecution.
15. It is the case of the prosecution that the other accused persons namely Nandan and Lalu had also made confessions on their arrest on a subsequent date. Nandan was arrested on 30.12.1992 and it is stated that he also made confessions before the police in the same line as that of the other three accused persons as mentioned above. But such confessions or recovery of the dead body on their statements have no relevance as the dead body had already been recovered on 27.12.1992 at about their statement regarding concealment of the dead body in the well is not at all admissible in evidence under Section 27 of the Act as the dead body had already been recorded by that time.
16. Now coming to the other evidence against the individual accused persons. It is in evidence against accused Gopal that he was very closed to Guddu and he used to play with him off and on and definitely when Guddu was seen going away with him, the family members had no suspicion in their mind. Then after the occurrence Gopal became missing from his residence and he could be arrested from his native home at Palamau and just after his arrest, he disclosed as to where the dead body was lying and on his showing the dead body could be recovered. So there is evidence against Gopal proved to the hilt, that Guddu was even last in the company of Gopal and on being shown by Gopal, the dead body of Guddu could be recovered from the well, Although it is a case of the prosecution that the accused persons made confessions before the police to the effect that Guddu was thrown into the well while he was style still living but from the post mortem report it could be found that Guddu was killed before hand by throttling and to conceal the dead body, it was then thrown into the well. This aspect of the matter is supported from the post mortem report. How Guddu was killed, the so called confessions before the police by the accused Gopal or others are not admissible in evidence.
17. Mrs. M.M. Pal, appearing for and on behalf of the informant tried to impress upon us that such confessions are admissible when those are made before the general public although they were it that point of time in the police custody. It is a futile attempt on the part of Mrs. M.M. Pal to get the whole of the confession of the accused Gopal or the other accused persons admissible in evidence when it is an established law that the statement made by accused before the police while in custody of the police is wholly inadmissible evidence expect the part which covers under Section 27 of the Act.
18. Against accused Om Prakash, besides his confession, there is an attempt from the side of the prosecution that the key of the lock of the gate of Imam Kothi could be recovered from his possession, but on close scrutiny it has been found that the key was recovered from the bad of the father of Om Prakash which is quite natural. It has come in evidence that Om Prakash's father was the care-taker of Imam Kothi, but whether that key is the real key of the Chanchani Bagan's gate of Imam Kothi could not be proved by the prosecution by any evidence whatever. The lock of the gate was never seized but it is 'the' evidence of the Investigating Officer that he never made an attempt to fit the key with that lock, 50 this seizure even found the possession of Om Prakash has got no hearing in the case.
19. Against accused Satyawan and Lalu, there is only evidence that they made confessions and the dead body was recovered on the basis of their confession. I have already held that recovery of the dead body on the basis of their confessions are not admissible evidence as the dead body had already been recovered in the basis of confessional statement made by accused Gopal.
20. Against accused Nandan, there is evidence that Guddu was seen in the company of Gopal and Nandan last and after that Guddu was never seen alive. The recovery of the dead body on being shown by Nandan has no bearing as when the confession of Nandan was recorded on 30.12.1992, the dead body of Guddu had already been recovered, so against him, the only evidence is that he was seen following Gopal and Guddu on the date of missing of Guddu from his house. This much of evidence if not supported any other circumstances on the basis of last seen cannot make him totally liable for the offence charged against him and at least he is entitled to get benefit of doubts. Other evidence regarding his post conduct has no much relevance.
21. Thus from the discussions made above, I find and hold that on the circumstances being proved against the accused Gopal Ram, he is liable for conviction under Section 302/201 of the Indian Penal Code. The other accused persons are entitled to get benefit of doubt as discussed above.
22. In the result, Criminal Appeal Nos. 168 of 1994 (R) 183 of 1994 (R), 188 of 1994 (R) and 180 of 1994 (R) are hereby allowed and the accused appellants Prasant Kumar Pathak alias Nandan, Satyawan Singh Nagat alias Satyawan Singh, Rajeev Kumar alias Lalu and Om Prakash Pandey are acquitted on benefit of doubt. Satyawan, Lalu and Nandan on acquittal are discharged from the liabilities of their bail bonds as they were granted bail by this Court during the proceeding of their appeals. Accused Om Prakash Pandey is in custody case. Criminal Appeal No. 5 of 1995 (R) is hereby dismissed. The judgment of conviction and sentence against Gopal Ram is hereby confirmed under Section 302/201 I.P.C. with modification that his conviction under Sections 364 and 120 B of the Indian Panel Code are set aside, the sentences passed under Section 302/201 of the Indian Penal Code is hereby confirmed. The period of detention shall be set off from the award of sentence.