Patna High Court
Rupdev Yadav & Anr vs State Of Bihar on 11 February, 2011
Author: Akhilesh Chandra
Bench: Shyam Kishore Sharma, Akhilesh Chandra
CRIMINAL APPEAL No.329 OF 2004
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Against the judgment and order of Sri Krishan
Mohan Srivastava, Sessions Judge, Rohtas,
Sasaram, dated 07th April, 2004, passed in Case
No. R.C. 4(5)/2002.
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1. RUPDEV YADAV
2. BINOD RAJWAR--------------------Appellants
Versus
1. THE STATE OF BIHAR
2. UNION OF INDIA, THROUGH
C.B.I., NEW DELHI------------Respondents
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For the Appellants : M/s Surya Narain Pd.
Sinha, Nand Kumar,
Jitendra Narain
Sinha
For the CBI : M/s Bipin Kumar Sinha
with Sunil Kr. Ravi
For the State : Ms. Shashi Bala Verma
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P R E S E N T
THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. The two appellants have preferred this appeal against the order dated 07th April, 2004 passed by learned Sessions Judge, Rohtas, Sasaram, in case no.R.C. 4(5) of 2002 arising out of Nauhatta P.S. Case no. 04 of 2002 holding them guilty for the offences 2 under Sections 148, 302, 323, 353 read with Section 149 of the Indian Penal Code, 27 of the Arms Act besides Section 3(2)1 and 22(5) of Prevention of Terrorism Act, 2002 (hereinafter referred to as the Act) and respective sentences awarded rigorous imprisonment for one year, rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default to further undergo imprisonment for one year, rigorous imprisonment for six months, rigorous imprisonment for three years and to pay a fine of Rs.1,000/- each in default to undergo imprisonment for three months, imprisonment for life and to pay a fine or Rs.5,000/- each in default imprisonment for one year and imprisonment for ten years. However, all the sentences are to run concurrently.
2. The prosecution case, as revealed from Exhibit-3, fard-e-bayan of P.W.3, Kumar Narendra, a Range Officer of Forest, recorded by P.W.21, S.I. Ajoy Prasad, at Adhaura P.S. on 15th February, 2002 at 14.00 hours is that in the same morning at about 9.00 A.M. the informant along with Divisional Forest Officer 3 (hereinafter referred to as DFO), Sanjay Singh (deceased), Foresters B.N. Singh (not examined), Ramjivan Pandit (P.W.14), Ram Pravesh Choudhary (P.W.10), Shiv Murat Pandey (P.W.13), Bodyguard Umesh Prasad Singh (P.W.4) and driver of Government Gypsy Mahboob Alam (P.W.9) went to check the road under construction, running from Akberpur to Rehal and when at about 11.00 A.M. the group arrived near Forest Office at Rehal, they found one person in green uniform, heard from some one in the vehicle that perhaps he is „party wala‟. All alighted from the vehicle and started proceeding towards range office but within a short time they realized that he is, in fact, party wala, they tried to come back but were surrounded by five to six armed persons in the similar uniforms and for about forty five minutes all interrogated them by different means and when the group started to escape through their vehicle the men in uniform whistled. Twenty five to thirty persons of their group including four to five female in civil dress arrives, one of them aged forty years having one child and other four were aged about twenty five to 4 thirty years and their commander aged about forty years of a bit dark complex whereas remaining were also aged about twenty five to thirty years, lean and thin, and forced them to come out of the village, tied hands of D.F.O, Sanjay Singh, from behind through a towel, kept him separated from other companions and took the D. F. O ahead. On objection raised by himself and his fellow men they were assaulted by lathi and butt of gun. Ultimately, the companions kept themselves separated. Four to five terrorist forcibly brought the D.F.O in eastern side of the village from Morang road and forced others to maintain silence. Some time thereafter they heard sound of seven firing and a few minutes thereafter four to five terrorist returned, asked about their caste etc. and ultimately on being convinced that they belonged to poor section of people, returned the driver and key of the vehicle and permitted to go. The terrorist left the place raising slogan "M.C.C. Zindabad" and the group anyhow arrived at Adhaura Police Station, apprehends that the D.F.O might have been killed. On the basis of aforesaid fard-e-bayan a formal first information report, 5 Exhibit-10, was recorded by the concerned Police Station i.e. Nauhatta Police Station at 9.00 P.M against unknown.
3. On getting such information the Police and other concerned authorities came into action and near the place of occurrence Police in large number arrived and on search recovered the dead body of deceased from inside the forest. Inquest report, Exhibit- 15, was prepared. Dead body was brought to Rohtas, sent for post mortem examination in the hospital. Investigation was being conducted by P.W.20, Samarendra Kumar Mouwar, but subsequently, considering the gravity of the situation, investigation was handed over to Central Bureau of Investigation where case no. R.C 4(S) of 2002 / SIC-IV New Delhi dated 22nd March, 2002, Exhibit-18, was instituted and investigation was conducted and concluded by P.W.22, Vaibhav Agasiv, charge sheet, Exhibit-28, was submitted against the appellants keeping the investigation against others pending whose case was separated subsequently and trial of the appellants 6 commenced. During such transactions initially the case was pending before the Chief Judicial Magistrate,Sasaram, but for some time it was at Patna Special Court and then again transferred to Sasaram where trial commenced after framing the charges on 14th February, 2003 initially instead of under Section 353 / 149 of the Indian Penal Code charge was framed under Section 352 / 149 but subsequently, vide order dated 24th February, 2004 it was amended.
4. The prosecution, in support of its case, has produced a good number of documentary evidence as Exhibits-1 to 31 and X and X/1.
Exhibit-1 Sanction Order Exhibit-2 Post Mortem Report Exhibit-3 Fard-e-bayan Exhibit-4 Signature of P.W.3 on Ex.13 Exhibit-4/1 Signature of P.W.4 on Ex.13 Exhibit-4/2 Signature of P.W.5 on Ex.13 Exhibit-4/3 Signature of P.W.10 on Ex.13 Exhibit-4/4 Signature of P.W.5 on Ex.15 Exhibit-4/5 Signature of P.W.5 on Ex.20 to 4/6 Exhibit-4/7, Signature of P.W.5 on Ex.21 4/8 & 4/9 & 22 Exhibit-4/10 Signature of P.W.5 on Ex24 & 4/11 Exhibit-4/12 Signature of DFO on letter by MCC Exhibit-4/13 Signature of Head Clerk on Envelop Exhibit- 4/14, Signature of P.W.7 on Ex.6 7 4/15 & 4/16 Exhibit-4/17 Signature of P.W.9 on Ex.26 Exhibit-4/18 Signature of P.W.3 on Log Book Exhibit-4/19 Signature of P.W.10 on & 4/20 Ex.24 Exhibit-4/21 Signature of P.W.14 on cloth in which Ex.I to VI were seized Exhibit-4/22, Signature of P.W.14 on 4/23 & 4/24 Ex.21 & 22 Exhibit-4/25 Signature of P.W.15 on & 4/26 Ex.20 Exhibit-4/27 Seizure memo. prepared by P.W.20 regarding seizure of blood stained earth Ex.XI Exhibit-4/28 Signature of P.W.20 on & 4/29 Ex.23 Exhibit-4/30 Signature of P.W.20 on Ex.VII Exhibit-4/31 Signature of P.W.20 on envelop containing blood stained earth Ex.XI Exhibit-4/32 Signature of Sr.S.P. on & 4/33 FIR Ex.18 Exhibit- Signature of P.W.22 4/xxxii on Ex.7 Exhibit-4/34 Signature of P.W.22 on Ex.8 Exhibit-4/35 Signature of P.W.22 on Ex.6 Exhibit-5 Letter no.151 of STF Exhibit-5/1 Letter no.357 of Conservator of forests Exhibit-6 Test Identification Parade Chart (3 copies) Exhibit-7 Application U/S 164 Cr.P.C filed by P.W.22 and endorsement of Metropolitan Magistrate P.W. 12 8 Exhibit-7/1 Order of Metropolitan Magistrate P.W.12 Exhibit-8 Confession of accused Vinod Rajwar Exhibit-9, Reports of CFSL 9/1, 9/2 & 9/3 Exhibit-10 FIR recorded by Bihar Police Exhibit-11 Endorsement of P.W.20 On Ex.3 Exhibit-12 Seizure of Poster Ex.13 Exhibit-13 Poster Exhibit-14 Endorsement of P.W.21 on Ex.3 Exhibit-15 Inquest report Exhibit-16 Seizure memo. of pellet By CBI from Bihar Police Exhibit-17 Seal sample Exhibit-18 FIR recorded by CBI Exhibit-19 Seizure of local Police files and Ex.13 by CBI Exhibit-20 Recovery Memo. prepared by P.W.22 at the spot Exhibit-21 Seizure of Ex.I to VI by CBI Exhibit-22 Sample seal Exhibit-23 Seizure Memo.
Exhibit-24 Photo identification Memo. Exhibit-25 Photo identification Memo.
Exhibit-26 Seizure Memo. of Log Book
Exhibit-27 Site Plan
Exhibit-28 Charge sheet
Exhibit-29 G.D. Entry of P.S. Rohtas
Exhibit-30 G.D. Entry of P.S. Rohtas
Exhibit-31 G.D.Entries of P.S.Nauhatta
Mark-X Forwarding letter of Sr.S.P
to CFSL
Mark-X/1 Injury report of P.W.5
Followed by following material exhibits.
Exhibit-I Jean Pant
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Exhibit-II Sweater
Exhibit-III T-Shirt
Exhibit-IV Leather Belt
Exhibit-V Shoes
Exhibit-VI Socks
Exhibit-VII Bullet Jacket
Exhibit-VIII Deformed bullet
Exhibit-IX Fired cartridge
Exhibit-X Fired cartridge
Exhibit-XI Blood stained earth
Exhibit-XII Blood stained earth
Exhibit-XIII Control sample of earth
5. The prosecution has proved the above exhibits besides other circumstances and its case by examining altogether following twenty four witnesses.
P.W. 1 Birendra Kumar Gupta
P.W.2 Dr. Kanhai Mahto
P.W.3 Kumar Narendra
P.W.4 Umesh Pd. Singh
P.W.5 Prithwinath singh
P.W.6 Shashi Kumar
P.W.7 Deep Nr. Mandal,
P.W.8 Sanjay Kumar
P.W.9 Mahboob Alam
P.W.10 Ram Pravesh Chy.
P.W.11 Ajoy Kr. Singh
P.W.12 Gulshan Kumar
P.W.13 Shiv Murat Pandey
P.W.14 Ramjiwan Pandit
P.W.15 Sri N.B. Bardhan
P.W.16 D.S. Chakoutra
P.W.17 O.S. Srivastava
P.W.18 Doman Yadav
P.W.19 Ram Krit Oraon
P.W.20 Samrendra Kr. Mouar
P.W.21 Ajoy Prasad
P.W.22 Vaibhav Agasi
P.W.23 Ram Pukar Singh
P.W.24 Sant Vilash Singh
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Out of whom only P.W.1, P.W.23 and
P.W.24 are purely formal witnesses who have proved respectively Exhibits 1, 29, 30 and 31 and P.Ws3, 4, 9. 10, 11, 13, 14, 18 and 19 are the witnesses of the occurrence. P.W.7, Deep Nr. Mandal, Jailor, P.W.8, Sanjay Kumar, Judicial Magistrate, are the persons on test identification parade wherein P.W.4, Umesh Prasad Singh, has participated and identified by the appellants and P.W.12, Gulshan Kumar, is a Metropolitan Magistrate at Delhi who recorded statement of appellant no.2, Vinod Rajwar under section 164 of the Code of Criminal Procedure (Exhibit-8). P.Ws 15. 16 and 17 are the officials of Forensic Science Laboratory. P.W.2, Dr. Kanhai Mahto, has conducted post mortem examination and proved Exhibit-2.
6. While assailing the findings of the trial court, learned counsel for the appellants submitted that there was delay in conducting test identification parade as the appellants were in custody right from 12th April, 2002 whereas test identification parade was held on 01st 11 October, 2002, even the confessional statement of appellant no.2, Vinod Rajwar, was recorded without observing the legal requirements. There is no legal evidence at all against either of the appellants specially against appellant no.1, against whom the said confessional statement, Exhibit-8, also cannot be used. There was further delay in transmission of first information report to the court where it was received on 18th February, 2002. The witnesses coming in court to identify appellant no.2, Vinod Rajwar, did not participate in test identification parade and there is no explanation that they have further been shown by albums and photographs on the basis whereof they claim to identify the only appellant no.2, their evidence cannot be said legal one to hold the appellants guilty.
7. Learned special Public Prosecutor, representing C.B.I, while supporting the findings, submitted that all legal requirements have been observed; witnesses have supported the prosecution version and trial court has, by a detailed reasoned order, held them guilty, no prejudice was caused to the 12 appellants neither their photograph was shown or even earlier, all precautions have been taken in recording confession statement of appellant no.2, who, even at the time of explaining the charge, confessed his guilt so the appeal may be dismissed.
8. Now, on the basis of materials available and on consideration of rival contention it is to be determined in this appeal whether prosecution has been able to substantiate the charges against the appellants beyond any shadow of reasonable doubt or findings of the court below needs interference.
9. Kumar Narendra, P.W.3, in his statement, has said that on relevant date, that is on 15th February, 2002, he along with his D.F.O., Sanjay Singh, deceased, and other companions, after spending previous night at forest rest house of Rohtas range, about 9.30 A.M. on 15th February, 2002, proceeded for Taradi Dhansa to inspect forest road. In the group P.W.5, Prithwinath Singh, P.W.14, Ramjivan Pandit, P.W.10, Ram Pravesh Choudhary, P.W.13, Shiv Murat Pandey, body guard of the deceased, and P.W.4, Umesh 13 Prasad Singh, were on the Gypsy jeep being driven by Mahboob Alam, P.W.9, and when they arrived at about 11.30 A.M. near village Rehal, where there were quarters of Forest employees, out of the group P.W. 14, Ramjivan Pandit, informed about presence of party wala (members of Maoist Communist Centre) around office and quarters. The group alighted from the vehicle near range office, found one poster, Exhibit-13, being pasted with the wall and another armed extremist was running behind the office. One, who was pasting the poster, Exhibit-13, enquired from them the identity which was disclosed with further assertion that they have come to see the work of forest office. Meanwhile, the driver had turned the vehicle for return but the moment the guard tried to go back they were stopped by the extremist pasting poster in the garb of having some talk and did not permit them to proceed. Meanwhile, fifteen to twenty persons of same group with arms arrived and forced them to surrender, enquired and verified about any weapons with them. Further enquiry was made from the deceased about his caste etc. and 14 subsequently a verbal complaint was lodged about non- contribution towards party fund from the expenditures for road under construction. The deceased expressed his inability to divest any amount as per their wishes. Demand of Rs.5 lacs was made but the deceased was not agreeable to pay even a single penny. Meanwhile, villagers, including P.W.11, arrived, started requesting the extremists to spare the District Forest Officer and his fellow men. They were forced to go ahead to have talk. Soon thereafter villagers also arrived at the place ultimately by firing in air the villagers were forced to disperse and the group was forced to proceed further. When protested hands of the deceased were tied from behind and the extremist took him towards forest site leaving the rest under control of other members of their group. Soon thereafter they could heard sound of firing and some extremist returned. On some enquiry permitted the group to go back even key of the vehicle was also provided. Slogan of M.C.C. Zindabad was raised and, ultimately, the group could be able to arrive at Adhaura Police Station where fard-e-bayan, Exhibit- 15 3, was recorded and with the help of Officer-in-charge, P.W.21, the informant could be able to talk with the Superintendent of Police and other authorities of the Forest Department. The informant and his group returned with Police force, arrived at about 5.00 P.M., on search dead body of the deceased could be located, inquest report was prepared. The poster, which was being pasted at the wall was also taken out by the Police, seizure list was prepared whereupon witnesses, including this witness put their signatures, marked Exhibits-4 to 4/3. Dead body was brought to Rohtas Police Station from where sent to Sadar Hospital, Sasaram for autopsy. In reply to the court question this witness could not be able to identify the appellants in court.
10. Almost similar is the statement of P.W.13, Shiv Murat Pandey, one of the companion of the decedased and informant, who also has narrated about the incident etc. but could not identify either of the two appellants in court. P.W.11, Ajoy Kumar Singh, P.W.18, Doman Yadav and P.W.19, Ramkrit Oraon, are 16 the three villagers examined on behalf of the prosecution. Out of them, P.W.11 has said that on hearing some sound he came out of his house, found some armed persons querying from District Forest Officer about some work, demanding money which was refused by the deceased, who was subsequently forced to go with them. The witness and another villagers requested the extremists to spare them but could not succeed rather forced to return. The extremists carried D.F.O and his companions towards forest side. Some time thereafter he heard sound of firing whereas P.W.18 goes to say almost same thing but also stated that to disperse the villagers the extremists fired in sky. Similar is the statement of P.W.19, Ramkrit Oraon. But, none of these three witnesses, like informant, P.W.3, claimed to identify the appellants or other extremists. The learned counsel for the appellants also could not point out anything otherwise from the statements of these witnesses.
11. P.W.5, Prithwinath Singh, one of the companion of deceased, Sanjay Singh, informant 17 P.W.3, and P.W.11, like P.W.9, Mahboob Alam, the driver of the vehicle, P.W.10, Ram Pravesh Choudhary and P.W.14, Ramjivan Pandit, the forst guards, have also stated the happenings of the day in almost similar way but not parrot like rather with natural variations and claimed to identify in court out of the two appellants, Vinod Rajwar, appellant no.2, as one of the members of the extremist, participated in the occurrence. P.W.5, in his cross-examination, paragraph 43, on the point of identification, is specific that he had not seen the appellant no.2 prior to occurrence or even thereafter but only earlier on the day of his arrest he could be able to see him and thereafter only in Court whereas P.W.9, in paragraph 15, has stated that except during occurrence he did not see appellant no.2 either earlier or subsequently. Similarly, P.W.10, in cross-examination paragraph 13, and P.W.14, in cross-examination, paragraph 8, have said that neither they could see the appellant no.2 prior to occurrence or subsequently prior to their instant deposition in court. P.W.14 in paragraph 5 is specific that appellant no.2 is the person who was 18 one amongst others taking away the deceased.
12. Umesh Prasad singh, P.W.4, body guard of deceased, is the only witness of the occurrence who has stated almost same thing what his other companions have said but added only that he too was armless as directed by the deceased on the ground of presence of small pistol may not be able to provide any security either to him or to the witness but its appearance alone may cause their death. He further participated in test identification parade, conducted on 01st October, 2002 in Sasaram Jail under supervision of P.W.8, Sanjay Kumar, Judicial Magistrate, assisted by P.W.7, Deep Naraian Mandal, Assistant Jailor, wherein this witness, P.W.4, could identify them before the court and is specific that the two appellants participated in the occurrence with arms and kept them confined. Deep Narain Mandal, P.W.7, has corroborated statement of this witness about his participation in test identification parade, proved his own signatures, Exhibits-4/14 to 4/16, and test identification parade prepared in triplicate. Likewise, Sanjay Kumar, P.W.8, 19 Judicial Magistrate, conducted the test identification parade, proved the test identification parade chart, Exhibit-6.
13. Learned counsel, representing the appellants, on the point of test identification parade, submitted that the persons put for identification were not similar to each other and legal requirements were not fulfilled but nowhere from the statement of these three witnesses any material irregularity / illegality could be pointed out. It was further argued that there was delay in holding test identification parade. In this regard it is pointed out that appellant no.1 was in custody since 06th June, 2002 and appellant no.2 since 19th April, 2002 but test identification parade could be held on 01st October, 2002. True it is that apparently there is some delay but it is well explained from the records, initially Nauhatta P.S. Case no. 04 of 2002 was instituted on the fard-e- bayan of P.W.3, first information report etc. could be placed in the court of Chief Judicial Magistrate, Sasaram on 18th February, 2002 from where at the request of prosecution several requests were issued against 20 different persons. Appellant no.2, Vinod Rajwar, who was in custody in connection with Rohtas P.S. Case no. 25 of 2002, as prayed by prosecution, remanded in this case on 22nd April, 2002 and since in the case, wherein he was in custody earlier, his face was covered. It was specifically directed to keep him in same way. Similar direction was renewed on subsequent date that is 04th May, 2002 on his production. Soon thereafter the case was transferred to the court of C.B.I. Patna, where already R.C. Case no.4(5) of 2002 had already been instituted on 01st April, 2002 since C.B.I. had undertaken investigation, the record was received and here also appears from the order sheet that accused was kept under covered face as it is and matter was further kept pending awaiting special authorization of the Presiding Officer to conduct C.B.I. cases from this court (High Court). Meanwhile, on 04th June, 2002 appellant no.1 was also remanded in this case and by the time the Presiding Officer could be authorized the case itself was ordered to be transferred to the court of Sessions Judge, Sasaram, where the record was received on transfer on 21 22nd August, 2002 where prayer was made on 27th September, 2002 for holding test identification parade which was done on 01st October, 2002 and the test identification chart, Exhibit-6, was submitted immediately.
14. The above facts are sufficient to indicate that time was consumed due to some jurisdictional lacking and the moment such problem was set at rest the prosecution took steps for test identification parade without causing any further dealy.
15. It is also argued that there is no explanation as to why only P.W.4 participated in test identification parade but other witnesses claimed witnessing the occurrence or identifying the appellant no.2 in court did not participate in such test identification parade. It is true that other witnesses did not participate in test identification parade. But, in the instant case it is also to be considered that the person who participated in test identification parade, P.W.4, whose identity also to be kept concealed by the orders of the court, taking into considerations the provision of 22 Prevention of Terrorist Activity and gravity of the situation. P.W.4 is a Police Personnel living in some sort of security whereas other persons are none-else than the employees of Forest Department were to remain there and it was difficult to conceal their identity if they had to participate in test identification parade. So if the witnesses, other than P.W.4, did not participate in test identification parade no prejudice is caused to the appellants.
16. The decision of the Apex Court in Antar Singh V. State of Madhya Pradesh; A.I.R. 1979 S.C.=1979 Cr.L.J. 715, wherein test identification parade was held after twelve months of the occurrence, is not applicable in the instant case. Similarly, another decision of the Apex Court in Shabad Pulla Reddy and another V. State of Andhra Pradesh; A.I. R. 1997 S.C. 3087, wherein test identification parade was held after some delay but without any convincing explanation is also not available to the appellants here in face of the explanation afore-mentioned. Similar is the position of the decision of the Aapex Court in Nirmal Pasi and 23 Others V. State of Bihar; 2003 (1) S.B.R. 670, wherein also test identification was held after one month and ten days of arrest of accused without any explanation.
17. Learned counsel for the appellants placed further reliance upon the decision of the Apex Court in Vijayan @ Ranjan V. State of Kerala with K.S. Sadanandan V. State of Kerala; 1999 Cr.L.J 1638, but in the aforesaid case at was evident from the evidence on record that photograph of the accused was published in all local newspapers and were shown to the witnesses before test identification parade. On that basis their testimony was held not reliable but it is also not available in the instant case. The learned counsel could not be able to point out from any material on record to show that photographs of either of the two appellants were ever shown to any witness or photograph was ever taken or published anywhere. On the contrary, the order sheet of the court below, right from the date of remand of the appellants till test identification parade was held, indicates that the faces of either of the appellants were kept covered and no photograph of either of the 24 appellants were ever produced to either of the witnesses including P.W.4 who participated in test identification parade and identified the appellants. So there is no wrong committed in the instant case on the above point.
18. Out of the remaining witnesses, Birendra Kumar Gupta, P.W.1, a person authorized to accord sanction under Prevention of Terrorist Act, 2002 has proved sanction, Exhibit-1. P.W.15, Sri N.B. Bardhan, Ballistic cum Assistant Chemical Examiner, proved his report, Exhibit-9, and material Exhibits-VII to X besides his signatures Exhibits-4/25 and 4/26. P.W.16, D.S. Chaukoutra, another Senior Scientific Officer, Biology, proved reports Exhibits 9/1, 9/2 and material Exhibits-XI to XIII. P.W.17, O.S. Srivastava, Senior Scientific Officer, Serology, proved his report, Exhibit-9/3. Nothing contrary is pointed out against their testimony.
19. P.W.2, Dr. Kanhai Mahto, who conducted autopsy on 16th February, 2002 at 01.10 A.M. on the dead body of the deceased and found the following ante mortem injuries:
"(i) A circular lacerated wound measuring 25 1" in diameter with inverted charged margin x muscle deep over interoperable aspect of mid region of right upper arm.
(In the opinion of P.W. it was wound of entry communicating to injury no.ii).
(ii) A circular lacerated wound 1 ½"½ " in diameter x muscle deep with everted margin lying nearing the wound no. (i) separated by a thin strip of skin and subcutaneous tissue over right upper arm.
(iii) A circular lacerated wound with blackened charged inverted margin 1/3" in diameter x chest cavity deep left intrascapular region in its lower part. (It was in the opinion of P.W. a wound of entry).
(iv) A lacerated wound with everted margin 1" in diameter over anterior aspect of right side of chest 2" above nipple. (In the opinion of P.W. it was wound of exit).
(v) A lacerated wound over left side of neck with blackened inverted margin slanting downwards, being deepened just above left clavicle measuring ½" x ½" x muscle deep in the upper part and 1" x 1" x chest cavity deep in lower part. (In the opinion of P.W. it was wound of entry).
(vi) Lacerated wound over left exilla 1 ½"
x 1" x chest cavity deep exudating dark fluid blood. (In the opinion of P.W. it was a wound of exit).
(vii) Abrasion over right fore arm 5" x 4".
(viii) Bruise over left arm anteriority ½" x ½".
(ix) Abrasion over right lower 1/3rd of leg measuring 1" x ½".
(x) Abrasion over left glutted region measuring 1" x ½".
26
In the opinion of the doctor, death was caused within 12 to 24 hours. Proved his report Exhibit-2 and also nothing pointed from his evidence to show any inconsistency with the prosecution version. Perhaps, taking into consideration that though there was no eye witness to the actual killing of the deceased who also sustained some injuries by hard and blunt substance as per prosecution version also finds corroboration from post mortem report, Exhibit-2, indicating some injuries caused to him by means other than fire arms.
20. Gulshan Kumar, P.W.12, Metropolitan Magistrtate, Delhi, has recorded confessional statement of appellant no.2, Vinod Rajwar, on 01st May, 2002 on the requisition of P.W.22, Vaibhav Agasiv, a C.B.I. Officer investigating the case. According to him, appellant no.2 was produced with muffled face before him with a request to record his statement. He, in his order, Exhibit-7, endorsed such request and provided opportunity vide Exhibit-7/1 to him, i.e. the maker, for re-thinking and when thereafter it was expressed by appellant no.2 to record his statement to further verify 27 and be sure of witness he also put certain questions besides warning him that the statement may be used against him, he got recorded his statement, Exhibit-8.
21. It appears from the relevant documents and evidence of this witness that the Investigating Officer, P.W.22, produced appellant no.2 with all details including that he was arrested in connection with Rohtas P.S. Case no. 25 of 2002 wherein he confessed about his involvement along with others in the instant case of murder of Divisional Forest Officer, Sanjay Singh. Consequently, he was remanded in this case and C.B.I. took him on its remand till 04th May, 2002 and during interrogation at Delhi appellant no.2 expressed his desire to reveal the true and complete facts. Consequently, he was produced before the concerned court which, after giving sufficient opportunity and warning and on further verification about the accused making voluntary statement recorded the same and thereafter he issued a certificate also on Exhibit-8 that on explaining everything it was recorded. No doubt, appellant no.2 has put his left thumb impression and 28 questions and answers to verify whether statement was being made voluntarily or not were recorded in English but when P.W.12 not only endorsed that it was well explained to the maker rather in court also he has stated so without any objection at any point of time, we find no force in submission of learned counsel for the appellants that without providing any opportunity to understand or verifying the same being voluntary statement of the appellant no.2 it was recorded.
22. Here we also noticed that even at the time of commencement of the trial before the trial Judge during explanation of the charges this appellant no.2 further stated about his presence and involvement in the occurrence wherein deceased was killed by his associate though he has not exposed himself as one of the assailants. Similar is the position in Exhibit-8. Here also he has disclosed that he is member of Maoist Communist Centre for last two years under leadership of one Nirala Yadav, Area Commander, and at the time of killing Sanjay Singh, D.F.O, by Virendra Yadav he was also along with his party members named in 29 Exhibit-8 including appellant no.1. He further stated that one poster was being pasted. He disclosed the name of such person who was doing so and also the event occurred on sudden arrival of District Forest Officer and others in vehicle. The conversations, assault, request by the villagers, their dispersement by firing in air, demand of money from the deceased and his refusal, further taking him towards forest where one of his associate, Virendra Yadav, at dictates of Area Commander, shot thrice causing instant death of the deceased. After his above statement is compared with the statement of witnesses giving eye-witness account and medical evidence, it appears that all are consistent and supplementing each other. At no point of time, including the statement under Section 313 of the Code of Criminal Procedure this appellant no.2 has stated about the application of any force, torture etc. or denial of any opportunity to re-think before making such statement. Thus, it cannot be said by any stretch of imagination that such confessional statement is not voluntary and the moment we arrive at this conclusion it 30 can safely be relied upon. Even such confession under law alone is sufficient to hold the culprits guilty. Our view finds support from the decision of the Apex Court in a case of Mahabir Biswas and Another V. State of West Bengal; (1995) 2 S.C.C. 25-10-2010 wherein in paragraph 8 it is held:
"A confession, before it can be acted upon must be established to have been voluntarily made and it is true. As regards the evidentiary value of a confession, which passes the above two tests, against the maker thereof, this Court has held, in Sarwan Singh Rattan Singh V. State of Punjab (SCR p. 964) „.... In law it would be open to the court to convict him on his confession itself though he has retracted his confession at a later stage. Nevertheless courts usually require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case‟."
23. we do not want to further make our findings lengthy by reproducing the details of other decisions but at the same time it would not be out of place to simply refer decisions of the Apex Court in case of Sri Ammini and Others V. State of Kerala; 1998 31 (2) SCC 301, Lokeman Shah and Another V. State of West Bengal with State of West Bengal V. Lokeman Shah; 2001 (5) SCC 235 having almost similar view.
24. Here we would further like to mention that on the facts and circumstances of the case, the decisions of the Apex Court in Kanada Padayachi appellant V. State of Tamil Nadu; AIR 1972 SC 66, wherein in paragraph 13 it is said "it is, thus, clear that an admission of fact however incriminating, but not itself establishing the guilt of the maker of such admission, would not amount to confession within the meaning of Sections 24 to 26 of the Evidence Act"
placed and relied upon by the learned counsel for the appellants is not applicable in the instant case, wherein what the maker has stated stands corroborated by other materials on record. Another decision of the Apex Court in Subramania Goundan V. State of Madras;
AIR 1958 S.C. 66, is also not of any help to the appellants since inspite of attempt to retract from confession though at later stage the materials available are sufficient to corroborate.32
25. Similar is the position of the decision of the Apex Court placed and relied upon by the appellants in a case of Haricharan Kurmi V. State of Bihar; A.I.R. 1964 SC 1184, wherein it is held in paragraph 16 that "it has been the recognized principle of administration of criminal law in this country for over half a century that confession of a co-accused persons cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the court to render the verdict that the charge is not proved against him, and so, he is entitled to benefit of doubt" with all 33 the respect is also not available to the appellants specially appellant no.1 since the materials available, as discussed above, are sufficient to establish complicity of appellant no.1 also irrespective of confessional statement of co-appellant no.2 and so far appellant no.2 is concerned, once it is found and held that his confessional statement recorded vide Exhibit-8 is there and voluntary one, this itself is sufficient to held him guilty whereas, in the instant case, prosecution has produced overwhelming evidence to establish his guilt and the materials produced by the prosecution further stand corroborated by his statement.
26. P.W.21, Ajoy Prasad, is the Officer-in- charge of Adhaura Police Station at relevant time, recorded fard-e-bayan (Exhibit-3), proved his endorsement (Exhibit-14), inquest report (Exhibit-15). P.W.20, Samarendra Kumar Mauar, is the Investigating Officer so long the case was with local Police. He has also proved Exhibit-10, the formal first information report, endorsement thereon, Exhibit-11, Exhibit-12, seizure list of the poster, Exhibit-13 and also his 34 signatures, Exhibit-4/27 to 4/31 and P.W.22, Vaibhav Agasiv, is the main Investigating Officer, took charge of investigation, when case was registered with C.B.I., proved his signatures, Exhibits-4/32, 4/33, Exhibits-18 to 26. Further signatures Exhibits 4/32, 4/33, 4/34 purported sketch map. submitted charge, Exhibit-28 and nothing could be pointed out from the evidence of all these witnesses showing anything contrary to prosecution version or materials creating any doubt against the same.
27. We have heard at length learned counsel for the appellants as well as counsel representing C.B.I. on rival contentions and materials on record and we find that prosecution has not been able to establish that deceased Sanjay Singh was brutally killed by the activists of Maoist Communist Centre, which is a banned Organization, as appears from Item no.25 of the Schedule, Prevention of Terrorist Organization, since he failed to succumb to the pressures created upon him to part with money to such Organization and the two appellants besides others were the persons actively 35 participated in such crime committed by the group of persons including themselves.
28. We, thus, find no merit in this appeal. Accordingly, it is dismissed.
(Akhilesh Chandra, J.) Shyam Kishore Sharma, J.
(Shyam Kishore Sharma, J.) Patna High Court, The 11th February, 2011 AAhmad.