Patna High Court
Anil Kumar Singh vs State Of Bihar on 13 July, 2010
Author: Dinesh Kumar Singh
Bench: Shyam Kishore Sharma, Dinesh Kumar Singh
CRIMINAL APPEAL No.1088 OF 2008( D.B.)
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Against the judgment and order of conviction dated 17.09.2008 and sentence
dated 09.09.2009 passed by the learned Additional Sessions Judge No. 3,
Patna in Sessions Trial No. 816 of 2005.
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Narendra Kumar Pandey alias Sunil Pandey, son of late Kameshwar Pandey,
resident of Village- Nawadih, P.S. Karakat, District- Rohtas, at present
Member of the Legislative Assembly, from Piro Constituency in the district
of Bhojpur....................................................................Appellant.
-Versus-
The State of Bihar........................................................Respondent.
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For the Appellant: Mr. Rana Pratap Singh, Senior Advocate & Mr. Sanjay
Kumar @ Manu & Narendra Kumar, Advocates.
For the State : Mr. Ashwini Kumar Singh, A.P.P.
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-With-
CR. APP (DB) No.1145 OF 2008
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Anil Kumar Singh, Son of Late Dhiraj Narayan Singh, resident of Mohalla-
Anand Bazar(Yadav Complex) P.S. Danapur in the district of Patna.
..... .......Appellant.
-Versus-
The State of Bihar.................................................Respondent.
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For the Appellant: Mr. Surinder Singh, Senior Advocate and M/s.
Akhileshwar Prasad and Ghanshyam Tiwary, Advocates.
For the State : Mr. Ashwini Kumar Singh, A.P.P.
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With
CR. APP (DB) No.1195 OF 2008
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Lulan Sharma, Son of Late Lal Narain Sharma, resident of Village- Chesi,
P.S. Naubatpur, District-Patna......................................Appellant.
-Versus-
The State of Bihar.....................................................Respondent.
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For the appellant: Mr. Pramod Kumar Singh, Advocate.
For the State : Mr. Ashiwini Kumar Singh, A.P.P.
2
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-With-
CR. APP (DB) No.1291 OF 2008
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Munna Singh, Son of Chandrika Singh, resident of Village- Simra, P.S.
Janipur, District- Patna..................................................Appellant.
-Versus-
The State of Bihar.......................................................Respondent.
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For the Appellant: Mr. Suraj Narayan Sinha, Senior Advocate and Mr.
Dronacharya, Advocate.
For the State : Mr. Ashiwini Kumar Singh, A.P.P.
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With
CR. APP (DB) No.1325 OF 2008
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Chittranjan Kr. @ Bablu, S/O Lalan Singh, resident of Village- Mahajpura,
P.S. Vikram, District- Patna.............................................Appellant.
-Versus-
The State of Bihar..........................................................Respondent.
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For the Appellant: M/S. Ashok Kumar, Shashi Ranjan, Rajendra Prasad and
Shakti Shankar, Advocates.
For the State : Mr. Ashiwini Kumar Singh, A.P.P.
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With
CR. APP (DB) No.1260 OF 2008
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Dheeraj Kumar, Son of Shri Sidhnath Sharma, resident of Village-
Sangrampur, P.S. Bikram, District- Patna........................Appellant.
Versus
The State of Bihar...................................................Respondent.
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For the Appellant: M/S. Rajesh Ranjan and S.M. Sabear Alam, Advocates.
For the State : Mr. Ashiwini Kumar Singh, A.P.P.
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With
CR. APP (DB) No.1070 OF 2009
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Binay Kumar, Son of Nawal Kishore Singh, resident of Chhitnama, P.S.
Maner, District-Patna.................................................Appellant.
-Versus-
The State of Bihar.....................................................Respondent.
----------.
3
For the Appellant: Mr. D. N. Tiwary, Advocate.
For the State : Mr. Ashiwini Kumar Singh, A.P.P.
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PRESENT
THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH ****** D.K.Singh,J All the aforesaid seven appeals have been filed against the judgment of conviction dated 17.09.2008 and orders of sentence dated 17.09.2008, 16.10.2008 and 09.09.2009 passed in Sessions Trial No. 816 of 2005 by Sri. Vijay Prakash Mishra, learned 3rd Additional Sessions Judge, Patna whereby and whereunder the aforesaid seven appellants were convicted under Section 364A, 365 r/w Section 34 and 120 B of the I.P.C. Though nine accused were put on trial but ultimately only seven accused were convicted and sentenced since two other accused namely, Sanoj Kumar and Santosh Kumar Tiwari, did not appear at the time of judgment and sentence. The aforesaid seven convicts were sentenced under Sections 364A/34, 120B of the I.P.C. for life imprisonment and a fine of Rs. 50,000/- each and further sentenced under Section 365 of the I.P.C. for seven years rigorous imprisonment and both sentences were directed to run concurrently.
Twenty five percent(25%) of the fine amount was 4 directed to be utilized for expenditure made in prosecuting the accused persons and the rest 75% was to be given as compensation to the victim for suffering mental torture or loss caused due to kidnapping.
Since all the seven appeals arise out of one judgment passed in Sessions Trial No. 816 of 2005, hence all the appeals were heard together and are being disposed of by this common judgment.
The prosecution case starts rolling with the written report (Ext-3) submitted by Smt. Nirmila Saxena(P.W. 4) (who happens to be the sister-in-law(Sali) of the victim, P.W. 12) at 8:15 A.M. on 18.05.2003 to the officer-in-charge S.K. Puri, Police Station to the effect that informant's brother-in-law Dr. Ramesh Chandra a Neurosurgeon having residence at Mithapur area Patna with nursing home at Sahdeo Mahto Marg, Patna had gone out in the night of 17.05.2003 but could not return. On 18.05.2003 at 6:00 A.M., one person made a phone call which was picked up by the servant of the victim namely Sushil(not examined) who was conveyed that the victim's car having registration No. BR IB 5415 Tata Indica is parked near New Bus Stand and its key is lying underneath the back wheal of the car, 5 hence the caller directed the servant to pick up the vehicle. Immediately thereafter another phone call came at the clinic of the victim and the caller wanted to talk with Harischand and the second caller also conveyed that the victim's car is parked near the bus stand with further information that the victim will talk in the evening. On inquiry the caller conveyed that he is speaking from Begusarai. The written report further stipulates that the informant(P.W.4) came to know about the kidnapping when the compounder of the victim conveyed to her at 6:30 A.M. on 18.05.2003.The information of the compounder was based on telephonic information received by victim's servant Sushil (not examined). Thereafter the informant went near the new bus stand and found the car of the victim parked. On the back seat of the car broken spectacle and old match box with scattered match sticks of Dr. Ramesh Chandra were found. At the bus stand the compounder conveyed that in the previous night at 8:30 the victim(doctor) left his clinic to participate in some social gathering and from the social gathering the victim went to Dr. Ajay Kumar's(P.W. 10) house situated at Ashiana Nagar. Thereafter the victim (P.W. 12) left Dr. Ajay Kumar's house (P.W. 10) for his own house at 10:45. This fact was conveyed to the compounder when he talked with Dr. Ajay (P.W. 10). Hence it is alleged that 6 some unknown criminals have kidnapped Dr. Ramesh Chandra as he was alone in the car since his Driver was on leave since 09.05.2003. Hence on the basis of the aforesaid information request was made through the written report for taking action in the matter.
On the basis of the aforesaid written report(Ext-3) Jakkanpur P.S. Case No. 70 of 2003 was registered under Section 364A I.P.C. on 18.05.2003 at 10:20 A.M. The confession of Anil Kumar Singh(Ext-15) was recorded by police at 5:00 P.M. at Danapur P.S. when he was arrested in Danapur P.S. Case No. 233 of 2003 in connection with a case of car theft. Anil Kumar Singh in his confessional statement admitted that he is involved in the conspiracy of kidnapping of Dr. Ramesh Chandra in which the main accused are Narendra Pandey @ Sunil Pandey, M.L.A. and Pappu Singh whereas other accused are 1. Ranvijay Pratap Singh 2. Sanoj Kumar 3. Dhiraj Kumar Singh 4. Munna Singh 5. Chitranjan Kumar @ Bablu 6. Santosh Kumar Tiwari @ Bara Babu. Anil Kumar Singh also confessed that the abducted Dr. Chandra has been kept by Pappu, Ranvijay and others in some village of Naubatpur but the exact location is known to Ranvijay Pratap 7 Singh who is residing with Sanoj Kumar at village-Nandlal Chapra whose house location is known to Binay.
On the basis of confession of Anil Kumar Singh(Ext-15) the police apprehended Binay from village-Chitnawa who conveyed that Ranvijay Pratap Singh @ Bablu and Sanoj Kumar are residing at Nandlal Chapra as tenant in the house of P.W. 1.
Consequently police apprehended Sanoj and Ranvijay from the House of P.W. 1 and the confession of Ranvijay(Ext-14) recorded on 20.05.2003 at 11:P.M. to the effect that Ranvijay and Sanoj work in a gang consists of several persons which includes Sunil Pandey, M.L.A., Ranjeet and others and under a conspiracy, the kidnapping of Dr. Chandra was done on 17.05.2003 in which Sanoj, Dhiraj, Munna Singh, Chitranjan were on motorcycle whereas four persons were in Maruti Van which was being driven by Pappu Singh whereas Ranvijay, Ranjeet, Sanoj, Tinku were sitting beside the captive, Dr. Chandra. Subsequently the victim was taken to village Chiraura under Naubatpur P.S. where firstly kept in the house of Arun Singh and then shifted to the house of Bhola Singh with the help of Ravindra Singh, Mukhiya and Raj Kumar, both resident of village Chiraura.
8
From the possession of Ranvijay Pratap Singh one mobile bearing No. 9835066983 and two sim cards bearing 9835250799 and 9835024349(of the victim Dr. Chandra) along with a telephone diary were recovered and seizure list was prepared on which one Tapeshwar Prasad (PW 1) and Pawan Kumar Jaiswal (not examined) were made witnesses. From Sanoj also a telephone directory, a cell phone without sim card and Rs. 1500/- were recovered and seizure list (Ext-7) was prepared on which Tapeshwar Pd (P.W. 1) and one Ranjan Kumar (not examined) were made witnesses. Ranvijay Pratap Singh in his confession accepted that though other accused persons subsequently left the place of captivity but Munna Singh, Chitranjan and Santosh were guarding the victim, Dr. Chandra at village Chiraura. Consequently on the basis of confesion (Ext-
14) of Ranvijay the police went to the village Chiraura, recovered the victim, Dr. Chandra from the house of Bhola Singh where three persons Munna Singh, Chitranjan and Santosh Kumar Tiwari were also arrested with three loaded pistols, one each, along with live cartridges. Then seizure list was prepared (Ext-10) on which P.W. 8 and P.W. 9 were made seizure list witnesses and for the same Naubatpur P.S. Case No. 90 of 2003 was registered under Section 25(1)B and 26 of the Arms Act on 21.05.2003 at 9 6:30 A.M. Subsequently on 21.05.2003, the statement of Dr. Ramesh Chandra under Section 164 Cr.P.C.(Ext-8) was recorded by learned Judicial Magistrate, Ist Class, Patna where Dr. Chandra disclosed that how his car was first dashed by a Maruti Van and then he was kidnapped at Serpentine Road, near Panchmandir. From the conversation of the accused persons victim came to know about accused names as Munna Singh, Chitranjan and others and during captivity few accused names were also gathered by the victim as Ranjeet, Pappu, Bablu and Sanoj. In 164 Cr.P.C. statement the victim Dr. Chandra also disclosed that ransom demand of Rs. 50,000,00/-(fifty lacs) was made by the accused persons.
It is pertinent to record here that another F.I.R. for the same occurrence was registered being Kotwali P.S. Case No. 301 of 2003(Ext-16) on 23.07.2003 under Sections 364A, 365, 120B/34 I.P.C. against seven persons namely 1. Ranvijay Pratap Singh @ Babloo Singh 2. Sanoj Kumar 3. Dhiraj Kumar Singh 4. Munna Singh 5. Chitranjan Kumar 6. Vinay Kumar 7. Santosh Kumar Tiwari @ Bara Babu through which request was made to officer-in-charge Kotwali P.S. to do further investigation and 10 submit the investigation report as from the 164 Cr.P.C. statement (Ext-8) of the victim, Dr. Chandra and the materials found during investigation in para 65 and 99 of the case diary, it appears that the case falls within the territorial jurisdiction of Kotwali P.S as the kidnapping has been done at Daroga Rai Path near Panchmandir, hence the City S.P., Patna vide Memo No. 624 had directed the Kotwali P.S. to submit the investigation report to the Court of learned C.J.M. After investigation the police submitted chargesheet vide Charge Sheet No. 257 of 2003 under Sections 364A, 365, 120B/34 IPC against seven accused persons namely 1.Ranvijay Pratap Singh @ Babloo Singh 2.Sanoj Kumar 3.Dhiraj Kumar Singh 4.Munna Singh 5.Chitranjan Kumar @ Babloo 6.Santosh Kumar Tiwari @ Bara Babu 7.Anil Kumar Singh though subsequently on 13.11.2003 and 14.06.2004 chargesheets were also submitted against other accused Narendra Pandey @ Sunil Panday, M.L.A. and Lulan Sharma respectively under the aforesaid provisions of the I.P.C. But with regard to accused Mritunjay Kumar Singh, Ranjeet Kumar, Raj Kumar Singh, Sahjanand Sharma and Deepu, the investigation was allowed to continue.
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The case was committed to the Court of Sessions on 25.04.2005 and charges were framed on 21.01.2005 by the learned 4th Additional Sessions Judge, Patna against eight accused persons namely 1. Ranvijay Pratap Singh @ Babloo, 2. Sanoj Kumar 3. Dheeraj Kumar Singh 4. Munna Singh 5. Chitranjan Kumar @ Babloo 6. Santosh Kumar @ Bara Babu 7. Anil Kumar Singh 8. Lulan Sharma under Sections 364A/34, 365/34, 364A, 365/120B I.P.C., whereas against Munna Singh and Narendra Pandey @ Sunil Pandey the charges were subsequently framed.
Subsequent to the framing of charge accused Ravindra Singh @ Mukhiya made himself absent and consequently nine accused persons were put on trial, out of which seven accused/convicts are appellants before this Court as two persons namely Santosh Kumar Tiwari and Sanoj Kumar did not appear on the date of judgment, hence against them order of conviction was not passed.
The prosecution examined 16 witnesses of which P.W. 1 is Tapeshwar Prasad, the seizure (Exts 5, 6 and 7) witness of the seizure lists made from Ranvijay Pratap Singh and Sanoj Kumar but he has been declared hostile. P.W. 2 and P.W. 3 Naresh 12 Singh and Harishchandra Prasad are the compounders of Dr. Ramesh Chandra (the victim). P.W. 4 Nirmala Suxena is the informant and sister-in-law(Sali) of the victim. P.W. 5 Mahesh Chandra Verma is the younger brother of the victim. P.W. 6, Rekha Chandra is the wife of the victim. P.W. 7, Ramashish Prasad Gupta is the private guard and had a tea shop at new bus stand from where the vehicle of the victim was recovered but he has also been declared hostile. P.W. 8 and P.W. 9, Sashi Bhushan Sharma and Nityanand Kanungo are the seizure list (Ext-10) witnesses with regard to the seizure of arms from the possession of Munna Singh, Chitranjan Kumar and Santosh Kumar Tiwari arrested from the place of captivity but they have also been declared hostile. P.W. 10 is Dr. Ajay Kumar in whose house the victim took the dinner on the alleged date of the occurrence prior to the kidnapping. P.W. 11 Neelam Kumari is the first I.O. of Jakkanpur P.S. No. 70 of 2003. P.W.12 is Dr. Ramesh Chandra, the victim. P.W. 13 Sanjay Kumar is the second I.O. P.W. 14 is Dillu Lohar who was officer-in-charge of Naubatpur P.S. and the informant of Naubatpur P.S. Case No. 90 of 2003(Ext-11) dated 21.05.2003. P.W. 15 is Md. Mukim, who was Officer-in-charge Kotwali P.S. who recorded the confessional statement (Ext-14) of Ranvijay Pratap Singh @ Babloo. P.W. 16 is 13 Ravi Prakash Singh, who was Officer-in-charge, Danapur P.S. who recorded the confessional statement(Ext-15) of Anil Kumar Singh in Danapur P.S. Case No. 233 of 2003(not exhibited).
P.W. 1, 8 and 9 are the seizure list witnesses. P.W. 1, Tapeshwar Prasad is the witness of seizure (Exts. 6 and 7) of mobile and diary recovered from Ranvijay Pratap Singh and Sanoj Kumar at village Nandlal Chapra but he has been declared hostile. P.W. 8 Sashi Bhushan Sharma and P.W. 9, NItyanand Kanungo are the witnesses to the seizure (Ext. 10) of arms recovered from Munna Singh, Santosh Kumar Tiwari and Chitranjan Kumar from the place of captivity in Naubatpur P.S. Case No. 90 of 2003 but they have also been declared hostile as they claimed that their signature were obtained on a plain paper.
P.W. 7, Ramashish Prasad Gupta is a private guard and has a tea shop at Bigrahpur Bus Stand from where the vehicle was recovered but he has also been declared hostile.
P.W. 2 and 3 Naresh Singh and Harish Chandra Prasad are the compounders of the victim Dr. Ramesh Chandra and they both deposed only to the effect that they came to know about the kidnapping from the servant of the victim Sushil (not examined) who received the information on telephone. 14 Subsequently P.W. 2 and 3 both went to the new bus stand where the vehicle of the victim was found parked.
P.W. 5 Mahesh Chandra Verma is the younger brother of the victim, Dr. Chandra who also received the information on 18.05.2003 from the servant of the victim Sushil(not examined) about the captivity and the telephone calls being received.
P.W. 6 Rekha Chandra is the wife of the victim, Dr. Chandra who admits that on the date of occurrence, she was in Krisland(USA) and her son Dr. Rajesh Chandra was informed about the kidnapping and on 21.05.2003 the Kotwali P.S. informed about the recovery of the victim Dr. Ramesh Chandra.
P.W. 4 Nirmala Suxena who happens to be the sister-in- law(Sali) of Dr. Chandra is the informant who came to know on 18.05.2003 at 6.30 A.M. through the servant Sushil(not examined) of Dr. Chandra about non return of Dr. Chandra and on the said information the informant went to the new bus stand and found the car of Dr. Chandra parked. On the back seat of the victim's car this witness found the spectacle of Dr. Chandra in a broken condition along with scattered match box and on the basis of information received by her, she lodged the F.I.R. which 15 was registered as Jakkanpur P.S. Case No. 70 of 2003(Ext-3).
P.W. 10 is Dr. Ajay Kumar whose evidence only suggests that Dr. Chandra took dinner at his residence on the alleged date of the occurrence prior to his kidnapping.
Hence P.W.s 2, 3, 4, 5, 6, and 10 are hearsay witnesses and they are witness only to the fact of kidnapping and recovery of the vehicle of victim.
P.W. 11, Nilam Kumari is the first I.O. of the case who admits about the submission of the written report by P.W. 4. In para 6 this witness has stated that on 22.05.2003 at 5:30, Anil Kumar Singh, the appellant of Cr. Appeal No. 1145 of 2008 was arrested by Danapur P.S. in a car theft case where he confessed(Ext-15) that he is involved in the conspiracy of the kidnapping of Dr. Ramesh Chandra. The confession of Anil Kumar Singh has been referred in para 56 of the case diary. This witness has also deposed that Anil Kumar Singh though stated that the victim has been kept in the village Chiraura but the actual whereabout is known to Ranvijay and Bablu whose residence is known to Binay Kumar, then Binay Kumar was arrested and on the information supplied by Binay Kumar, Ranvijay Sanoj and Dhiraj were arrested on 20.05.2003 at 11:00 16 P.M. from village- Nandlal Chapra. The confession(Ext-14) of Ranvijay Pratap Singh was recorded through which it was discovered that the victim has been confined in village Chiraura under the Naubatpur P.S. in the house of Bhola Singh and demand of ransom has been made to tune of Rs. 50 lakhs of which Rs. 25,000,00/-(twenty five lacs) was to be paid to Sunil Panday, M.L.A. and the rest Rs. 25,000,00/-(twenty five lacs) was to be shared by the rest accused persons. This witness also deposed about the recovery of the mobile and sim cards particularly sim card of the victim Dr. Chandra from Ranvijay and the seized telephone directory containing the numbers of the informant and victim's clinic and resident. This witness has also stated that from the place of captivity, three accused persons, namely, Munna Singh, Chitranjan and Sanoj Kumar were arrested with three country made loaded pistols along with cartridges (one each). Consequently Naubatpur P.S. Case No. 90 of 2003(Ext-12) was registered against three arrested persons on the written report of Dillu Lohar, (P.W. 14) Officer-in-charge of Naubatpur P.S. In para 44 this witness has stated that nothing incriminating was recovered from Binay. Though in his deposition (para 65 and 75) this witness has stated that he made no initiative ever for conducting T.I. parade of accused persons. 17
P.W. 12 is Dr. Ramesh Chandra, the Victim. He is the only witness to the actual occurrence and as per the evidence in para 1 he was coming from the house of Dr. Ajay on 17.05.2003 at 10:45 P.M. driving the car himself but as soon as he reached near Panchmandir in serpentine road, one van came dashed his car thereafter four persons came and on threat of pistol got him seated in the back seat of the car and two persons sat beside him and one other person started driving the vehicle. This witness has stated in para 4 that the accused persons conveyed that they have kidnapped him for ransom, hence he has to pay Rs. 50,000,00/- for which the victim shown helplessness as both the wife and the son were outside the country then the accused persons took the telephone numbers of clinic and the residence and also snatched the mobile phone of the victim. This witness has further stated in para 3 that subsequently his eyes were closed by cotton strap. The victim was initially kept in old house having mud tiles roof and then shifted to another house. In para 6 this witness has stated that on 21.4.2003, in the morning, he heard the sound and thereafter the police barged into the area of captivity resulted into his release and from the said place of captivity three accused namely Munna Singh, Santosh Kumar Tiwari and Chitranjan Kumar were arrested who were guarding 18 the victim. In para 8 this witness has stated that during conversation they used to address each other as Pappu, Bablu, Sanoj and in para 9 this witness has refused to identify Lulan Sharma, Sanoj and Binay in the dock though P.W. 12, the victim, claims that he can identify the other accused persons on seeing them. In para 12 this witness has stated that police never took him for identifying the accused on T.I. parade though in para 14 this witness has stated that he has no occasion to request for holding T.I. parade nor any application to that effect was filed.
P.W. 13 is Sanjay Kumar who was the officer-in-charge of Kotwali P.S. Patna, the second I.O. of the case who took over the investigation on 23.05.2003. P.W. 13 admits that Binay was arrested from village Chitnawa and on his information Ranvijay Pratap Singh @ Bablu, Sanoj Kumar and Dhiraj were arrested from Nandlal Chapra. From Ranvijay Pratap Singh one mobile bearing mobile No. 9835066383 was recovered along with two sim cards bearing 9835024349 (sim of Dr. Chandra) and 9835250799. In para 10 this witness has stated that he has verified about the ownership of the mobiles of Dr. Ramesh Chandra, Anil Kumar Singh and Ranvijay Pratap Singh from the mobile company where it was found that the real owner of the mobile number bearing No. 9835066983 is Virendra Kumar 19 where Anil Kumar Singh was the owner of mobile No. 9835030186 and Dr. Chandra was the owner of mobile No. 9835024349 whereas one Viseshwar Singh was the owner of mobile No. 9835250799. In para 12 this witness has also stated that he has taken out the print out of the informant's (P.W. 4) mobile No. 9835011233 from which it was traced that accused talked to informant on 20.05.2003 from the mobile of the victim Dr. Chandra at 7:02:41 A.M. In para 13 it is mentioned that Sanoj's mobile print out(not exhibited) was also taken which disclosed that he talked on Ranvijay's mobile on 18.05.2003 at 10:19 A.M. for 62 seconds and subsequently Sanoj Kumar talked to Anil Kumar, once, to Mritunjay, three times and to Ranvijay Pratap Singh, seven times. In para 25 this witness has admitted that from the print out of the mobile it was apparent that no call was made on the mobile of Sunil Pandey M.L.A. In para 31 this witness has accepted that on the basis of the print out, ownership can not be proved. In para 36 it has been stated that he felt no need for taking out the print out of the mobile of Anil Kumar Singh being mobile No. 9835030186. Hence this witness has accepted that he has participated in the arrest of Binay, Ranvijay, Sanoj and Dhiraj and has taken out the print out of P.W. 4(Ext-9) and Sanoj's mobiles(not exhibited) and submitted 20 chargesheet.
P.W. 14 is Dillu Lohar who is the informant of Naubatpur P.S. Case No. 90 2003 and has deposed that three accused persons Munna Singh, Chitranjan and Santosh Kumar Tiwari were arrested from the house of Bhola Singh (place of captivity) at village Chiraura alongwith three loaded country made pistols and live cartridges and then seizure list(Ext-10) was prepared. In para 8 this witness identified Lulan Sharma since he arrested him. Hence this witness is relevant with regard to arrest of three accused persons from the place of captivity and registration of the F.I.R. of Naubatpur P.S. Case No. 90 of 2003 and the seizure of the arms from the three arrested persons from the place of captivity.
P.W. 15 is Md. Mukim who had recorded the confessional statement (Ext-14) of Ranvijay Pratap Singh. He made search in the rented room of Sanoj Kumar on 20.05.2003 at 11:30 P.M., recovered one mobile and two sim cards and a telephone diary from Ranvijay Pratap Singh and also recovered one telephone diary one nokia mobile and Rs. 1500/- from Sanoj Kumar. P.W. 15 in Paragraphs 7 and 8 of the deposition has stated that on the confessional statement of Ranvijay the police went to village 21 Chiraura and recovered victim and arrested three persons with arms from the place of captivity. Hence this witness admits about the confession of Ranvijay and recovery from Ranvijay and Sanoj and also about the recovery of the victim on the information supplied by Ranvijay and arrest of three persons along with arms from the place of captivity.
P.W. 16 is Ram Prakash Singh, who was the officer-in- charge of Danapur P.S. who arrested Anil Kumar Singh in Danapura P.S. Case No. 233 of 2003(not exhibited) and recorded confession of Anil Kumar Singh who accepted his involvement in the conspiracy of the kidnapping of Dr. Chandra and keeping the victim at Chiraura village of Naubatpur but the exact place of captivity was known to Ranvijay Pratap Singh and Sanoj Kumar whose house could be located by Binay. P.W. 16 has further stated that he has made no effort to get recorded 164 Cr.P.C statement of the Anil Kumar Singh. In para 12 this witness has stated that he did not get the T.I.P. of Anil Kumar Singh conducted. Hence evidence of this witness is relevant only with regard to arrest, confession of Anil Kumar Singh and the information supplied by Anil Kumar Singh disclosing some clue with regard to the actual occurrence.
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Mr. Surinder Singh, learned senior counsel appearing on behalf of Anil Kumar Singh(Cr. Appeal No. 1145 of 2008) submitted that the confession(Ext-15) of Anil Kumar Singh is not admissible under Section 27 of the Evidence Act as recovery of Dr. Chandra is not on the basis of the confession of Anil Kumar Singh as Anil Kumar Singh only gave an information which was just a clue with regard to the kidnapping of Dr. Chandra because Anil only said that Dr. Chandra is kept somewhere in the village of Naubatpur block in following words:- vigfjr MkDVj jes'k pUnzk dks iIiw jathr oxSjg ukScriwj ds xkWo esa j[kk gSA and the actual place of captivity is known to Ranvjay Pratap Singh and Sanoj Kumar whose house is known to Binay. It is further submitted that Naubatpur Block consists of 21 panchayat and 125 villages, hence the said confession is not admissible under Section 27 of the Evidence Act because the confession of Anil Kumar Singh does not amount to the "fact discovered". It is further submitted by Mr. Singh that P.W. 11, Nilam Kumari in para 6 and P.W. 16 in para 1 have wrongly deposed that Anil Kumar Singh made confession to the effect that Dr. Chandra has been made captive in village Chiraura of Naubatpur. It is further submitted that neither in 164 Cr.P.C. statement nor in evidence the victim name of this appellant surfaced nor Anil was ever put on T.I. parade nor he 23 was named in Kotwali P.S. Case No. 301 of 2003.
Mr. Singh relied upon a judgment reported in AIR 1963 SC 1113(Prabhoo Versus State of U.P.) page-9 which stipulates that the statement of accused which led to any recovery within the meaning of Section 27 means where any fact is deposed to as recovered in consequence of the information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to confession or not, as relates distinctively to the fact thereby discovered may be proved. Hence the recovery of Dr. Chandra has not been made on the basis of the confession of Anil Kumar Singh nor the fact that Dr. Chandra has been made captive in the village Chiraura has been discovered from the confession of Anil Kumar Singh.
The ratio of the judgment reported in AIR 1963 SCC 1113(Prabhoo Versus State of U.P.) supra has been based upon Privy Council judgment reported in AIR 1947 Privy Council page 67 (Pulukri Koteya Versus Emperor) where the Privy Council interpreted Section 27 of the evidence act as follows:-
"It is fallacious to treat the „fact discovered‟ within the section as equivalent to the 24 object produced, the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added " with which I stabbed A", these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant".
Further reliance has been placed on a judgment reported in AIR 1966 SCC 119(Aghnoo Nagesia versus State of 25 Bihar) which analyses the composite application of provisions incorporated under Sections 24 to 30 of the Evidence Act. Para 9 of the judgment reads as follows:-
"Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Ss. 162 and 164 of the Code of Criminal Procedure, 1898. Section 17 to 31 of the Evidence Act are to be found under the heading "Admissions". Confession is a species of admission, and is dealt with in Ss. 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides: "No confession made to a police officer shall be proved as against a person accused of an offence". The terms of S. 25 are imperative. A confession 26 made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by S. 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by S. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Ss. 24, 25 and 26. It provides that when any fact is deposed to as discovered in consequence of information 27 received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-s. (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence Act. The words of S. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under S. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, 28 except as provided by S. 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under S. 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by S. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S. 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them.
A judgment reported in 2005(1) Criminal Law Journal 554 (Arjun Vishwas versus State of Assam) clearly stipulates as how " fact discovered" has to be determined and what fact disclosed by an accused can be admissible under 29 Section 27 of the Evidence Act and to be treated as the "fact discovered" in consequence to the statement made by accused in police custody. Para 18 of the judgment reads as follows:-
"From a careful reading of what has been laid down by the Apex Court in the case of Mohmed Inayatullah(1976 Cri LJ 481) (supra), it clearly follows that when a statement made by an accused is sought to be introduced into the evidence on record by taking recourse to Section 27, the Court shall, first, determine what fact was really discovered in consequence of the statement made by the accused and, then, the Court shall split up the statement into different components in order to enable the Court to sift the admissible portion(s) of the statement from the inadmissible ones. Only that component or portion of the statement, which was the immediate cause of the discovery, would be the legal evidence and not the entire statement. What is, now, required to be noted is that a fact discovered shall not be treated as equivalent to the object produced. The fact discovered, in fact, embraces, within its ambit, the 30 place from where the object is produced and the knowledge of the accused as to where the object produced was lying(See State of Rajasthan v.
Bhup Ram reported in (1997) 10 SCC 675.
Mr. Singh further relied upon a judgment reported in 1961 MPLJ(N) page 156 which explains the successive information given about the position of crime weapon to the police by several persons but the weapons recovered from the last person, information of each occasion is not covered by Section 27 of the Evidence Act as earlier informations are only clue to the investigation.
Lastly reliance has been placed on a judgment reported in 2005(II) SCC 600 State (NCT) of Delhi Versus Navjot Sandhu @ Afzal Guru and other analogous cases which stipulates that confession can be acted upon if the Court is satisfied that they are voluntarily and true. The voluntary nature of the confession depends upon whether there are any threat inducement or promise and it's truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them when voluntary character of informations and its truth are accepted, it is safe to rely on it. 31 Para 21 of the judgment stipulates that the first requisite condition for utilizing Section 27 of the Evidence Act in support of the prosecution case is that the investigating police officer shall depose that he discovered a fact in consequent of the information received form an accused person in a police custody. Thus there must be a discovery of fact not within the knowledge of the police officer as a consequent of the information received. Of course, it is expedient that the information or the disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctively to the fact thereby discovered that can be proved and nothing more. Last clause of Section 27 makes it clear that it is not the confessional part that is admissible but it is only such information or part of which relates distinctively to the fact thereby discovered that can be proved and nothing more. Thus the information conveyed in the statement to the police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the section. The rational behind this provision is that if a fact is actually discovered in consequent of the information supplied which affords some guarantee that information is true and can 32 therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused.
On behalf of Lulan Sharma of Cr. Appeal No. 1195 of 2008, Pramod Kumar Singh, learned counsel submitted that the victim in dock (P.W.12 para 9) has failed to identify this appellant to be involved in the offence. This appellant is not named in the second F.I.R. In 164 Cr. P.C. statement the victim does not name this witness. P.W. 13 the second I.O. has not identified him. P.W. 14 in para 8 has admitted that this appellant was remanded from other case and except the confessions (Exts. 15 and 16) of Anil Kumar Singh and Ranvijay Pratap Singh, which are not admissible, there is no evidence against him moreover he was never put on T.I.P. Learned senior counsel for the Munna Singh, Mr. Suraj Narayan Prasad Sinha, in Cr. Appeal No. 1291 of 2008 submits that though he has been named in 164 Cr.P.C. statement of the victim which has not been corroborated by any other evidence. Moreover he was not arrested on 21.05.203 because had he been arrested on 21.05.2003, he would had been remanded when the police brought the victim for recording 164 Cr.P.C. statement on 21.05.2003 but he was remanded on 23.05.2003 which proves 33 this fact that subsequently the petitioner was framed in this case. Hence it is submitted that Naubatpur P.S. Case No. 90 of 2003 is also antedated otherwise had this appellant been arrested in Naubatpur P.S. Case No. 90 of 2003 on 21.05.2003 then he would had been remanded on 21.05.2003 because the distance between the village- Chiraura and Patna is hardly 50 K.M., hence the police first framed the case, got the 164 Cr.P.C. statement of victim recorded and then subsequently prepared the papers. P.W. 12 in para 14 of his deposition has named three accused persons except the appellant. Lastly it has been submitted that the statement of the accused under Sections 313 Cr. P.C. is not an empty formality as no question was asked that the appellant was arrested from Chiraura the place of captivity, hence on this score also the conviction is vitiated. In this regard reliance has been placed on 2009(3) SCC (Criminal) 92 (Ranvir Yadav versus State of Bihar) which stipulates that Section 313 Cr. P.C. enables the accused personally to explain any circumstances appearing in the evidence against him.
Further reliance has been placed on a judgment reported in 2009 (2) SCC (Criminal) 593 (Inspector of Customs, Akhnoor, Jammu versus Yashpal and another) it stipulates that the provisions under Section 313 is mainly intended to benefit the 34 Court in reaching to the final conclusion. Hence all the incriminating materials and situation should be placed before the accused during accused's 313 Cr.P.C. statement.
Learned counsel for Chitranjan Kumar @ Bablu in Cr. Appeal. No. 1325 of 2008 submits that except the confession of Anil Kumar Singh and Ranvijay Pratap Singh which are not admissible under Section 27 of the evidence Act, there is nothing against this appellant and actually he was not arrested form the place of recovery. Had he been arrested on 21.05.2003 then he would not have remanded on 23.05.2003 moreover the victim in para 14 of his deposition has named only three persons Pappu, Bablu and Sanoj as these names victim gathered from the conversation of accused . This appellant has neither been identified in the Court nor put on T.I. P. Learned counsel appearing for Dheeraj Kumar(Cr. Appeal No. 1260 of 2008) has stated that his name only appears in the confessions of Anil Kumar Singh and Ranvijay Pratap Singh which are not admissible, moreover nothing has been recovered from his possession and his name did not surface in conversation of the accused. It is further submitted that this appellant was juvenile on the date of the occurrence and by way 35 of supplementary it has been brought on record that in another case this appellant was declared juvenile by the Court and in this connection reliance has been placed on judgments reported in 2009 (6) Scale page 695(Hari Ram versus State of Rajesthan and another) 2005(3) SCC 551(Pratap Singh versus State of Jharkhand and another) 2009(1) PLJR 116(Bir Bahadur Singh @Tuka Singh versus State of Bihar.) Learned counsel on behalf of Binay Kumar (in Cr. Appeal No. 1070 of 2009) submits that his name sprang up in the non-admissible confession of Anil Kumar Singh as a person who knew the location of the house of Ranvijay and Sanoj. Though his name also sprang up in the non-admissible confession of Ranvijay Pratap Singh but no role has been assigned in commission of aforesaid offence. Moreover victim (P.W. 12) has stated in para 9 of his deposition that this appelalnt was not there in kidnapping and above all victim has refused to identify this appellant in the dock.
Mr. Rana Pratap Singh, learned Senior Counsel appearing on behalf of Narendra Kumar Pandey @ Sunil Pandey in Cr. Appeal No. 1088 of 2008 has submitted that there is absolutely no legal evidence against this petitioner and name of 36 this appellant surfaced in the confessions of Anil (Ext-15) and Ranvijay Pratap Singh which are not admissible moreover it is not clear that who recorded the confession of Ranvijay as P.W. 15 in para 5 of his deposition has stated that the confession of Ranvijay Pratap Singh was recorded by Sanjay Kumar P.W. 13 on the directions of P.W. 15 whereas P.W. 13 in para 23 has stated that he has not recorded the confessional statement (Ext-14) of Ranvijay Pratap Singh rather it was recorded by P.W. 15., hence Ranvijay confession (Ext-15) has no meaning on this score also. It is further submitted that the prosecution case is based upon the evidences of interested witnesses as P.W. 2 and P.W. 3 are the compounders of the victim, P.W. 4 is the sister-in-law (Sali) of the victim, P.W. 5 is younger brother of the victim, P.W. 6 is the wife. Then it is submitted that P.W. 1, 8 and 9 seizure list witnesses have gone hostile, hence no seizure has been proved. It is further submitted that P.W. 13 in para 22 has admitted that in the hotel Morya incident, which is alleged to have occurred while celebrating the kidnapping of Dr. Chandra this appellant has not been named. Further pappu Singh and other accused alleged to be the master mind in conspiracy have not been examined and P.W. 13 in para 25 has admitted that Sunil Pandey mobile number has not figured in the print out of mobile with 37 regard to conversation between the accused and no evidence with regard to conspiracy has been led in the matter.
Learned counsel for the State Mr. Ashiwini Kumar Sinha has submitted that offences under Section 364 I.P.C. take place in different phases, hence the evidence has to be appreciated in a composite whole in which every person is equally responsible. It is then submitted that in a case of kidnapping the chances of getting direct evidence are bleak. So far as admissibility of the confessions of Anil Kumar Singh and Ranvijay Singh under section 27 of the Evidence Act are concerned, the informations to the effect that the victim has been kept in village Chiraura have been disclosed, hence the confessions are admissible. Learned A.P.P. has categorized the appellants in three categories under the first category Anil Vinay (appellant) and Ranvijay (not appellant) are the persons who supplied the information. Second category is of Muna Singh , Chitranjan (appellants) and Santosh Kumar (not appellant) who were caught at the place of captivity whereas Lulan and Dhiraj (appellants) fall in the third category of being indulged in conspiracy of kidnapping for ransom.
So far as the contention of Muna singh with regard to 38 not placing the relevant circumstances of his arrest from the place of occurrence under Section 313 Cr.P.C., it has been submitted by learned A.P.P. that the said circumstance has been placed in 313 Cr.P.C. statement of Chitranjan.
Learned counsel for the State further submits that with regard to minority claim of Dhiraj, he has disclosed his age as 24 years in 313 Cr.P.C. statement, hence on this score his claim is not tenable.
The factum of kidnapping of P.W. 12 Dr. Chandra is an admitted fact, the only question has to be decided in present appeals is that whether the evidences on record prove the case beyond shadow of reasonable doubt justifying appellants' conviction.
After scanning the evidence of the witnesses, materials on record and considering the submissions of the respective parties, it appear that there is no eye witness to the occurrence and the witness of the actual occurrence is only P.W. 12 the victim Dr. Ramesh Chandra. From his 164 Cr.P.C. statement(Ext-8) as well as his evidence, it appears that Dr. Chandra was actually kidnapped by four persons at Serpentine Road on 17.05.2003 at 10:45 P.M. and from the conversation he gathered the name of 39 three persons out of whom he recollected two names Munna and Santosh but during the trial in para 8 he recollected three names as Bablu, Sanoj and Pappu though in para 7 of his deposition he has admitted that three accused were arrested from the place of captivity, used to guard him. P.W. 12 has admitted in his 164 Cr.P.C. statement and in his evidence that a demand of Rs. 50,000,00/-(fifty lacs) as ransom was made.
So far as not conducting the T.I. parade is concerned, it is shocking that the investigating officer did not choose to put the accused persons on T.I.P. which has been admitted by P.W. 11 and 13 in their evidences that they did not feel the requirement of putting accused on T.I.P. Moreover the victim has also admitted that he also did not think it proper to file an application for identifying the accused persons on T.I.P. Though P.W. 12 the victim has decline to identify Lulan Sharma, Sanoj and Vinay in the dock classifying that these accused were not involved in the occurrence though he claims to identify other accused persons as and when they are shown. But it appears that P.W. 12 the victim was deposed on four dates i.e., 16.06.2007, 13.07.2007, 17.07.2007 as well as 18.07.2007 but the other accused persons chose not to appear on those dates in Court, hence all such accused persons can not take the plea that they have not been 40 identified by the victim.
So far as three accused persons who were caught at the place of captivity, their identification deem to be proved in view of the P.W. 12's evidence to the effect that these persons used to guard the victim through out and they have been arrested from place of captivity with arms.
So far as the confession of Anil Kumar Singh is concerned, his confession did not lead to recovery as the information disclosed by Anil can not be treated as leading to recovery of fact because under Section 27 of the evidence Act between the information disclosed and the facts discovered there must be a direct nexus. Moreover from perusal of the confession of Anil Kumar Singh(Ext-15), it appears that it only gives a clue with regard to the captivity. Hence confession of Anil can not be treated as a fact discovered and is not admissible under Section 27 of the Evidence Act.
It is the only confession of Ranvijay(Ext-14) from which this fact was discovered that Dr. Chandra has been made captive in the house of Bhola Singh at village Chiraura and on the basis of that victim was recovered. Anil's confession only discloses that the victim has been kept somewhere in Naubatpur which 41 consists of 125 villages and the evidences of P.W. 11 and P.W. 16 to the effect that Anil Kumar Singh disclosed in his confession that the victim has been kept in the village Chiraura are subsequently developed evidences of these witnesses during trial as the confession of Anil Kumar Singh does not reflect as such.
The question of admissibility of information under Section 27 of the Evidence Act supplied by accused, it is well settled that the information as it relates distinctively to the fact thereby discovered that can be proved and nothing more. Last clause of Section 27 of the Evidence Act makes it clear that it is not the confessional part that is admissible but it is only such information or part of it relates distinctively to the fact discovered by means of information furnished. Hence the information discovered from the Ranvijay's confession(Ext-14) is only admissible to the extent that the victim P.W. 12 has been made captive in the house of Bhola Singh at Chiraura. Hence other part of the confession of Ranvijay and the Anil is not admissible under Section 27 of the Evidence Act but other parts of the confession can be used for the purposes of corroboration and contradiction.
Complicity of Anil Kumar Singh further becomes doubtful 42 on the fact that after his confession on 20.05.2003 second F.I.R. being Kotwali P.S. case No. 301 of 2003(Ext-16) was registered on 23.07.2003 in which seven persons were named but Anil Kumar Singh was not named. Moreover Anil has not been named by the victim P.W. 12 either in 164 Cr.P.C. statement or in his evidence nor Anil's mobile print out was being taken out by I.O. nor he has been put on T.I.P. So far as charge of conspiracy is concerned, no evidence has been led for proving this charge but the conspiracy has been inferred from the different circumstances which surfaced during the investigation. Section 120A and 120B I.P.C. makes conspiracy a substantive offence and renders it punishable even if an overt act does not take place pursuant to the illegal agreement. The gist of the offence of conspiracy is an agreement to break law. The parties to such an agreement will be guilty of criminal conspiracy. Even though illegal act agreed to be done has not been done. Unlawful agreement and not its accomplishment is the gist of the offence of conspiracy. Hence meeting of such mind of two or more person for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy. So far as charge of conspiracy in present case is concerned, it appears to be proved with regard to all such 43 persons whose involvement have been reflected from initial stage of kidnapping till the recovery but not against others.
In the present case so far as appellant Munna Singh and Chitranjan Kumar @ Bablu are concerned, their involvement gets corroborated by the confessions of Anil Kumar Singh (Ext-
15), Ranvijay Pratap Singh (Ext-14) as both the confessions talk about involvement of these two appellants in hatching the conspiracy, act of kidnapping and keeping the victim in captivity.
Furthermore their names figure in the evidence of P.W. 12 as he gathered some names from the conversation of the accused persons and victim further testifies their presence throughout during captivity. Moreover these two appellants were caught from the place of captivity with arms which has been proved by P.W. 12, 13 and 14. But so far as other appellants are concerned, the allegation of conspiracy has not been proved.
It is well settled law that 164 Cr.P.C. statement is not a substantive piece of evidence and it can be used only for the purposes of corroborations and contradiction. Hence in this case also the 164 Cr.P.C,. statement of Dr. Chandra (Ext-8) can only be used for the purposes of corroboration and contradiction.
In as case of the circumstantial evidence, it is very 44 important that the chain of circumstances should be complete. So far as appellant Munna Singh and Chitranjan Kumar are concerned, in their case, it appears that chain of circumstances are complete as their complicity is initially corroborated by confessions of (Exts. 14 and 15) Anil Kumar Singh and Ranvijay, further their names gathered by victim from conversation of accused and subsequently their arrest from the place of captivity and above all P.W. 12 subsequently deposed that the persons arrested from the place of captivity were guarding him through out. So far as the remand of the three persons on 23.05.2003 after two days of their arrest on 21.03.2005 is concerned, it was a lapse on the part of the prosecution, hence the delayed remand of the accused persons would not vitiate the entire case.
The purpose of recording the statement under Section 313 Cr.P.C. is to enable accused persons to reply all the circumstances and evidences appearing against the accused. It is true that Munna Singh was not confronted with the circumstance of his arrest from the place of captivity with arms while recording his statement under Section 313 Cr.P.C. but Apex Court in the case of Sahabrao Bobade versus State of Maharashtra reported in 1973(2) SCC 793 considered the fall out of the omission to put to the accused a question on vital circumstance appearing 45 against him in prosecution evidence. The Apex Court held that any omission under Section 313 Cr. P.C. of criminal trial must result in consequential miscarriage of justice causing prejudice to accused and the prejudice caused by such defect must be established by accused.
In the present case the only circumstance that this appellant was arrested from the place of captivity was not placed while recording 313 Cr. P.C. statement in my view by not placing the one circumstance will not vitiate the entire charge against the appellant Munna Singh as it has actually prejudiced the appellant has also not been proved whereas other charges/ evidences of participating in kidnapping for ransom and keeping the victim in captivity have been put in statement under Section 313 Cr.P.C. to appellant Munna Singh.
The other circumstance which has been relied by the prosecution is recovery of sim card of victim Dr. Chandra from Ranvijay and the talk being made on mobiles between the accused persons as well as the telephone calls made by the accused to the informant P.W. 4.
Though the prints out of mobile number of accused Sanoj were taken out but they have not been exhibited, what 46 have been exhibited are the prints out (Ext. 9) of the mobile of Nirmala Suxena (P.W.4 informant) being mobile No. 983501123.
P.W. 13, the I.O. in para 12 has stated that the accused persons talked with the informant P.W. 4 whereas P.W. 4 in her evidence nowhere states that she ever talked with the accused persons. Computer generated telephone prints out can not be taken as evidence in view of the provision of Section 65(B) of the Evidence Act as has been decided by the Apex Court in the case of NCT of Delhi versus Navjot Sandoo (supra) (at paragraph 148 to 152) which clearly stipulates that under Section 65(B) of the Evidence Act with the particulars enumerated in clauses 2 (a) to (C), the information contained in the electronic records can not be adduced in evidence and in any case in the absence of examination of competent witnesses acquainted with the function of the computers during the relevant times and the manners in which the print outs were taken, even secondary evidence under Section 63 is not admissible. Hence the prosecution has failed to prove the prints out of mobiles as circumstance of complicity as the prints out have not been proved by the competent authority as prescribed under Section 65(B) of the Evidence Act. Moreover the prints out of mobile cannot prove the ownership of mobile as 47 has been admitted by I.O. P.W. 13 in his deposition.
So far as the charge of demanding ransom is concerned, it gets proved with regard to the appellants Munna Singh and Chitranjan Kumar because the victim P.W. 12 in his 164 Cr.P.C. statement and in his evidence in para 4 has stated specifically that the ransom of Rs. 50,000,00/-(fifty lac) were demanded and this fact has been recorded by the P.W. 15 and 16 who recorded the confession of Anil Kumar Singh and Ranvijay Pratap Singh. Though it is admitted that most vital witness who would have deposed with regard to the ransom is the servant (Sushil) of the victim who has not been examined in the case.
It is true that the seizure list witnesses either not examined or they have gone hostile, hence the seizures have technically not been proved.
So far as Narendra Kumar Pandey @ Sunil Pandey(Cr. Appeal No. 1088 of 2008) is concerned, though his name appears in the confession of Ranvijay Pratap Singh(Ext-14) and Anil's confession(Ext-15) but such confessions are not admissible and apart from that no evidence has been adduced against this appellant nor even the victim has gathered his name from the conversation of the accused persons in the entire occurrence, 48 hence charges have not been proved against this appellant also.
So far as Anil Kumar Singh's confession (Ext.15) is concerned, his confession is not admissible under Section 27 of the Evidence Act and so far his name being figured in the confession of Ranvijay Pratap Singh (Ext. 14) is concerned, that is also not admissible because Ranvijay's confession is admissible only to the extent that led to the recovery of the fact that the victim Dr. Chandra was kept captive in village- Chiraura and nothing more. Moreover the confession of Ranvijay does not stipulate that this appellant participated in the actual kidnapping and apart from that there is no evidence against this appellant, hence the prosecution has failed to prove the charges against this appellant Anil Kumar Singh.
So far as Lulan Sharma(Cr. Appeal No. 1195 of 2008) and Binay Kumar(Cr. Appeal No. 1070 of 2009) are concerned, though their names appear in the confession of Anil Kumar Singh(Ext-15) and Ranvijay Pratap Singh(Ext-14) but those are not admissible against these appellants and the most vital factor is the evidence of P.W. 12 in para 9 where he failed to identify both the appellants in the dock by saying that they were not involved in the kidnapping. Hence the charges have not been 49 proved against these two appellants on this score alone.
So far as Munna Singh(Cr. Appeal No. 1291 of 2008) and Chitranjan Kumar @ Bablu(Cr. Appeal No. 1325 of 2008 are concerned, the charges have been proved against them because their involvement get corroborated from confessions (Exts. 15 &
14) of Anil Kumar Singh and Ranvijay Pratap Singh. Moreover their names have been mentioned by the victim P.W. 12 specifically suggesting that these appellants were caught from the place of captivity with arms and they were guarding the victim through out which is further corroborated from the evidence of P.W. 13 and P.W. 14. Hence considering the evidence and submissions of the parties on records, it appears that the prosecution has proved the charges under Sections 364A/34, 120B and 365 I.P.C. beyond shadow of reasonable doubt.
So far as Dheeraj Kumar (Cr. Appeal No.1260 of 2008) is concerned, though this witness name figures in the confession of Ranvijay Pratap Singh(Ext-14) and Anil Kumar Singh(Ext-15) and was arrested along with Ranvijay Pratap Singh and Sanoj Kumar but nothing has been recovered from him. His name does not figure either in 164 Cr.P.C. statement or evidence of the victim (P.W. 12) nor other circumstances have been proved against this 50 appellant, hence the charges against this appellant has also not been proved. Since the charges have not been proved hence I have not deliberated on the question of minority of this appellant.
Since charges against Munna Singh (Cr. Appeal No. 1291 of 2008) and Chitranjan Kumar @ Bablu (Cr. Appeal No. 1325 of 2008) have been proved beyond shadow of reasonable doubt. Hence judgment and order of conviction dated 17.09.2008 passed by Sri Vijay Prakash Mishra, learned 3rd Additional Sessions Judge, Patna, in Sessions Trial No. 816 of 2005 against these two appellants are upheld and their respective appeals are dismissed. Since both the appellants are already in jail, hence they are directed to suffer the remaining part of their sentences.
So far as conviction and sentences of the appellant Narendra Kumar Pandey @ Sunil Pandey ( Cr. Appeal No.1088 of 2008 ), Anil Kumar Singh ( Cr. Appeal No. 1145 of 2008 ), Lulan Sharma ( Cr. Appeal No. 1195 of 2008, Dheeraj Kumar ( Cr. Appeal No. 1260 of 2008 ) and Binay Kumar (Cr. Appeal No. 1070 of 2009 ) are concerned, the prosecution has failed to prove the charges beyond shadow of reasonable doubts, hence their appeals are allowed. The judgment and order of conviction dated 17.09.2008 passed in Sessions Trial No. 816 of 2005 by Sri 51 Vijay Prakash Mishra, learned 3rd Additional Sessions Judge, Patna with regard to aforesaid five appellants are set aside and they are discharged from the liability of their respective bail bonds and they are directed to be released forthwith, if they are not wanted in any other case.
(Dinesh Kumar Singh,J) (Shyam Kishore Sharma,J) (Shyam Kishore Sharma,J) Patna High Court Dated 28th July,2010.
Shageer/NAFR