Patna High Court - Orders
The State Of Bihar vs Pankaj Kumar Singh & Anr. on 16 May, 2014
Bench: Mihir Kumar Jha, Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Death Reference No.13 of 2010
======================================================
The State Of Bihar
.... .... Petitioner/s
Versus
1. Pankaj Kumar Singh, son of Sri Ramdeo Singh, resident of village
Lagauli (Tilrath), P.S. Barauni, District Begusarai
2. Birendra Kumar Yadav, Son Of Late Bindeshwari Yadav @ Bulli Lal
Yadav Village - Telrath Adarsh Nagar Lagauli, P.O. Telrath, P.S.
Barauni, District Begusarai
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.1215 of 2010
======================================================
Pankaj Kumar Singh, son of Sri Ramdeo Singh, resident of village Lagauli
(Tilrath), P.S. Barauni, District Begusarai
.... .... Appellant/s
Versus
The State Of Bihar
.... .... Respondent/s
======================================================
with
Criminal Appeal (DB) No.1250 of 2010
======================================================
Birendra Kumar Yadav Son Of Late Bindeshwari Yadav @ Bulli Lal Yadav
Village - Telrath Adarsh Nagar Lagauli, P.O. Telrath, P.S. Barauni, District
Begusarai
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
======================================================
Appearance :
(In D. REF. No.13 of 2010)
For the State : Mr. Ashwani Kumar Sinha, A.P.P.
For the Respondent/s : Mr. Rana Pratap Singh, Sr.Adv.
Mr. Rai Mukesh Sharma, Adv.
Mr. Aaruni Singh, Adv.
Mr. Sumant Singh, Adv.
Mr. Dhruva Mukherjee, Adv.
(In CR. APP (DB) No.1215 of 2010)
For the Appellant/s : Mr. Rana Pratap Singh, Sr.Adv.
Mr. Rai Mukesh Sharma, Adv.
Mr. Aaruni Singh, Adv.
Mr. Sumant Singh, Adv.
For the Respondent/s : Miss. Shashi Bala Verma, A.P.P.
(In CR. APP (DB) No.1250 of 2010)
For the Appellant/s : Mr. Dhruba Mukherjee, Adv.
For the Respondent/s : Mr. Shivesh Chandra Mishra, A.P.P.
======================================================
2
CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
and
HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
=============
(Date: 16.05.2014)
A Death Reference in terms of Section 366 of the Code
of Criminal Procedure (Cr.P.C.) has been made to this Court under
the judgment and order dated 17.9.2010 passed by the Addl.
Sessions Judge- F.T.C.III, Begusarai, whereby and whereunder the
appellants in the connected criminal appeals Pankaj Kumar Singh
and Birendra Kumar Yadav have been convicted under section
302/34 of the Indian Penal Code and sentenced to death in
connection with S.Tr.No. 456/1994, wherein though the aforesaid
two appellants have also been convicted for offence under sections
364, 201/34 of the Indian Penal Code but no separate sentence has
been passed against them in view of their capital sentence to
death.
2. The appellant Pankaj Kumar Singh and the appellant
Birendra Kumar Yadav have also filed their appeals against the
same judgment of conviction and sentence dated 14.9.2010/
17.9.2010 respectively vide their Cr. Appeals No. 1215/2010 and
1250/2010.
3. The facts giving rise to the prosecution case lie in a
very narrow compass. One Vidyanand Paswan (P.W.4) on
3
12.3.1994 had submitted a written report to the Officer In-charge
of Barauni Police Station at about 8.15 P.M. wherein he had stated
that his minor son Vikram @ Chhotu, aged about 5½ years, had
gone to school, namely, Primary School, Aadarsh Nagar, Lagauli,
which was at a distance of 100 meters from his house. He had
further stated that when his son did not return till 12.30 in the
after-noon, his family members started a search and in course of
the same one Ajay Kumar (P.W.2), aged about ten years, had
stated that he had seen the appellant Birendra Yadav near his
boring who had parked his scooter over there as well as appellant
Pankaj Kumar Singh who was frequently coming near the parked
scooter of Birendra and was also going towards the school.
According to the informant Ajay Kumar (P.W.2) had claimed that
he had seen the appellant Pankaj Kumar Singh coming near the
scooter alongwith Chhotu and both of them (Pankaj and Chhotu)
going towards the east on the scooter with appellant Birendra in
the direction of Maharathpur.
4. The informant in his written report had also stated that
his daughter Pinki Kumari who was also studying in the same
school had also seen the appellant Pankaj making frequent rounds
of the school on the same day. The informant had also claimed
that on acquiring knowledge of this fact from both Ajay Kumar
4
(P.W.2) and Pinki Kumari (P.W.5) he had gone to the houses of
the appellants Pankaj and Birendra who were also the residents of
village Lagauli Telrath but on enquiry from the family members of
both of them he had come to know that neither of them, who had
left their houses at 9 A.M. in the morning, had returned back to
their houses. The informant thus having made these limited
allegations in his written report had apprehended that his son
Chhotu was kidnapped for ransom and the police should take
immediate actions for recovery of his minor son Chhotu @
Bikram.
5. It is on the basis of the aforementioned written report
that Barauni P.S.Case No. 103/1994 was lodged for offence under
section 364/34 I.P.C. both against the appellant Birendra and
Pankaj and the police had taken up the investigation. In course of
such investigation in the same night appellant Birendra Kumar
Yadav was arrested from his house and his confessional statement
was recorded by the police and on the basis of the same dead body
of Chhotu, the son of the informant, was recovered from Gandak
river at Sidhighat, Khagaria, whereafter the police had filed a
requisition for addition of the offence under section 302/201 I.P.C.
in the F.I.R. The police after completing its investigation as also
on receipt of the postmortem report had submitted its charge sheet
5
for offence under sections 364, 302, 201/34 I.P.C. against both
Birendra and Pankaj and showing Pankaj as absconder.
6. Following the aforesaid charge sheet and order taking
cognizance the case was committed to the court of Sessions on
30.11.1994. The appellant Pankaj Kumar Singh infact after a lapse
of more than two years of occurrence had surrendered on
12.6.1996 and thereafter and thereafter charges were framed
against both the appellants on 10.9.1996 for offence under sections
364/34, 302/34 and 201/34 I.P.C. Ultimately the trial was taken up
in the year 2009 and when the prosecution after examining its
witnesses had closed its evidence on 27.7.2009, the statement of
both the appellants were recorded under section 313 Cr.P.C.
whereafter they too had led their evidence in defence by
examining their defence witnesses, and the court below having
heard the arguments had delivered the impugned judgment which
is the subject matter of this Death Reference as also connected two
criminal appeals.
7. Mr. Rana Pratap Singh, learned Senior counsel
appearing on behalf of the appellant Pankaj Kumar Singh, has
submitted that it is a case of no evidence, inasmuch as the trial
court had failed to take into account that the chain of
circumstantial evidence was not completed and even theory of last
6
seen could not been applied because of a long gap of time lag
between the time Chhotu was last seen with the appellants Pankaj
and Birendra and the ultimate recovery of his dead body at a
distant place in a pond in Khagaria town. He has further
highlighted on the aspect that the informant (P.W.4), father of the
victim boy Chhotu was himself a Peon in the office of the Civil
Surgeon and his annual income was around Rs.60,000/- only and
therefore, the story of kidnapping his son for ransom would also
not inspire confidence, especially when the prosecution did not
bring any evidence to show that even a demand of ransom in the
intervening 18 hours, from the time Chhotu was missing from the
school to the time to recovery of his dead body from the pond in
Khagaria town, was made by anyone from the informant.
8. Proceeding further Mr. Singh has also highlighted on
the aspect that there is actually no evidence of appellant Pankaj
having been seen in the company of the victim boy Chhotu and to
that extent he had sought to draw strength from the evidence of the
prosecution which according to him had miserably failed to even
establish the theory of last seen. In this regard he has also sought
to make a critical analysis of the evidence of the sole witness
P.W.2 who had been the source of information to the informant,
P.W.4, as with regard to his son Chhotu of being taken away by
7
the appellant Pankaj in company of the appellant Birendra on
scooter from their vicinity of the school.
9. Mr. Singh has also submitted that the alleged extra
judicial confession of the appellant Birendra was firstly
inadmissible and secondly did not inspire confidence on account
of inherent contradictions. In this regard he had made a detailed
submission on the scope of Sections 27 and 30 of the Evidence
Act and had also placed reliance on a number of authorities of the
Apex Court beginning from the case of Bhuboni Sahu v. The
King, reported in AIR(36) 1949 Privy Council page 257, laying
down that confession can be used only as a corroborative
evidence. In this regard he had also referred to the judgment of the
Apex Court in the case of Hari Charan Kurmi v. State of Bihar,
reported in AIR 1964 SC 1184, in the case of Aghnoo Nagesia v.
State of Bihar, reported in AIR 1966 SC 119, in the case of
Haroom Haji Abdulla v. State of Maharashtra, reported in AIR
1968 SC 832 and in the case of Salim Akhtar @ Mota v. State of
Uttar Pradesh, reported in AIR 2003 SC 4076. On the basis of all
these authorities Mr. Singh was of the view that the so called
confessional statement of the appellant Birendra before the police
firstly would be admissible only to the extent of recovery of the
dead body of Chhotu and nothing more and in any event could not
8
be used against the appellant Pankaj.
10. Mr. Singh has also laid stress on the aspect that
having regard to the circumstances put to the appellant Pankaj in
course of recording of his statement under section 313 Cr.P.C.
wherein not a word was said about ransom or kidnapping by him
of Chhotu from the school, the prosecution so far it related to the
case of the appellant Pankaj had miserably failed to prove the
charge. According to him, the case in hand in absence of a clear
evidence could never be brought to the level of one which would
shake the conscience which is absolutely essential for a death
sentence because even if death of Chhotu is admitted by recovery
of the dead body there was no evidence at all brought on the
record by the prosecution to show of the deceased Chhotu either
being taken away by appellant Pankaj or his being involved in any
manner in the offence alleged. He had accordingly summed up his
submission that on the basis of materials on record at least the
appellant Pankaj could not be held guilty much less become liable
for conviction and sentence as was awarded by the trial court.
11. Mr. Dhruba Mukherjee, learned counsel appearing on
behalf of the appellant Birendra Kumar Yadav, on the other hand,
while assailing the impugned judgment of the trial court had
submitted that there was complete lack of evidence to connect the
9
appellant Birendra with the occurrence in question, inasmuch as
whatever evidence had come on record would only go to show the
proximity of appellant Pankaj with the deceased Chhotu or his
family members which is no view of the matter would be
sufficient to establish his complicity in the alleged offence in any
manner. In this regard he had also submitted that the prosecution
infact did not bring any evidence on record to show that the
appellant Birendra had any friendship much less such close
proximity which could have made them work together in
executing the plan of kidnapping the victim, Chhotu. Mr.
Mukherjee in this behalf has also submitted that there was also
complete lack of evidence either on the point of Chhotu actually
going to the school on the fateful day or his leaving the school in
the midst of the day even before dispersal. In this regard he has
also emphasized that non-examination of the Class teacher,
namely Jai Ram Sir, even by the police in course of investigation
much less his being made a charge sheet witness or examining the
court had itself caused a huge dent in the entire prosecution case.
12. Proceeding further in this aspect Mr. Mukherjee has
also pointed out the inherent defect in the investigation by the
police, which according to him did not make any effort to search
the school bag of the victim boy Chhotu nor even cared to verify
10
the presence of the victim boy Chhotu in the school on the fateful
day. He has also highlighted the fatal infirmity in the investigation
by pointing out that though the offence was allegedly committed
in Begusarai District but when the Investigating Officer
transcending his territorial jurisdiction had entered into Khagaria,
another District he had neither taken permission of the concerned
court nor had even informed the concerned Police Officer which
by itself would put a question mark on the story of either alleged
confession made by the appellant Birendra before police or the
police going as per his confessional statement to Khagaria and
made recovery of the dead body from a pond a pointed out by him.
Mr. Mukherjee did not stop there because according to him even
after recovery of the dead body and coming to know that both the
appellants having drowned the victim Chhotu in the pond had also
thrown his apparels in their return journey by a train at a specific
place, no effort was made to search and seize those apparel of the
victim boy Chhotu. According to him, when the police had also
failed to seize the cycle in question on which the appellant Pankaj
was said to be loitering around the school on the fateful day and
even the seizure list of the scooter of the appellant Birendra did
not contain any specific timing, the Investigating Officer in fact
had left vital connecting clues which in turn would give benefit of
11
doubt to both the accused including the appellant Birendra.
13. Mr. Mukherjee had also highlighted that the failure
on the part of the police to gather the connecting links allegedly
obtained from the confessional statement of the appellant Birendra
would not only expose falsity of such confessional statement of
appellant Birendra but would even otherwise lead to inescapable
conclusion that the so called extra judicial confession of the
appellant Birendra before the police apart from inadmissible in
evidence had also remained wholly uncorroborated. In other
words, Mr. Mukherjee was of the view that since the prosecution
has not sought to bring on record anything by way of
corroborating evidence to prove that in support of whatever was
allegedly confessed by the appellant Birendra the alleged
confessional statement of the appellant Birendra at best had to
remain confined only to recovery of the dead body of deceased
and nothing more. In this regard he has also placed reliance on the
judgment of the Apex Court on the issue of admissibility of extra
judicial confession before police and the extent to which it could
be used against accused by referring to the cases of Satish Kumar
v. the State, reported in 1996 Cr. L.J. 265, Chattar Singh & anor.
v. State of Haryana, reported in 2008 AIR SCW 7426 and Kunju
@ Balachandran v. State of Tamil Nadu, reported in 2008 AIR
12
SCW 835.
14. Finally Mr. Mukherjee had also borrowed the
submission of Mr. Singh, learned Senior counsel appearing on
behalf of the appellant Pankaj, by referring to and relying on all
the case law on Sections 27 and 30 of the Evidence Act with
additional reference to the case of Madhu v. State of Kerala,
reported in (2012)2 SCC 399. He also had highlighted the aspect
of discrepancy in the statement of the appellant Birendra under
section 313 Cr.P.C. by placing reliance on the judgment of the
Apex Court in the case of Sharad Birdhichand Sarda v. State of
Maharashtra, reported in AIR 1984 SC 1622. Ranvir Yadav v.
State of Bihar, reported in (2009)6 SCC 595 and Ratan Sao vs.
State of Bihar, reported in 2010(3) PLJR 664.
15. Mr. Mukherjee had thus summed up his submission
alike Mr. Rana Pratap Singh, Senior Counsel that not only on the
basis of evidence and the materials on record the Death Reference
made by the trial court was fit to be answered in negative but even
the appeal of the appellant Birendra was fit to be allowed as there
was no evidence to hold him guilty for the charges framed against
him either under section 302 or 364 or 201 I.P.C.
16. Mr. Ashwani Kumar Sinha, A.P.P. followed by Mr.
Shivesh Chandra Mishra A.P.P. and Miss. Shashi Bala Verma,
13
A.P.P. appearing for the State, on the other hand, have supported
the impugned judgment in its entirety. According to them, in a
case of present nature where a boy of 5½ years was picked up
from the school by the two appellants and also his dead body
could be ultimately recovered on the confessional statement of one
of the two accused at a far distant place in a pond, the prosecution
could not have brought anything more in evidence beyond the
connecting links to show that the victim boy had come to the
school from where he had picked up by Pankaj, who was already
well known to him and his other family members, and he in league
with the appellant Birendra had taken away the victim boy on the
scooter whereafter the dead body of the victim boy Chhotu was
recovered from the place revealed in the confessional statement of
the appellant Birendra after he was apprehended by the police in
his house in the dead of the night. In this regard they had also
explained that it was appellant Birendra who having made
confession of killing the victim boy Chhotu by way of
strangulation and drowning him in the pond was one who himself
went inside the pond and had brought out the dead body of Chhotu
and therefore, it was for the appellants to disclose the facts which
were specifically within their knowledge in terms of Section 106
of the Evidence Act. They have also submitted that the witnesses
14
of the prosecution did not seek to improve their version beyond
what have stated before the police and in fact all of them were
truthful to the extent what they had actually seen.
17. According to Mr. Ashwani Kumar Sinha, learned
A.P.P. though it may not be a rare of rarest case but keeping in
view the manner in which a 5½ years old boy was done to death
was capable of arousing conscience of any reasonable person of a
ghastly crime committed by both the accused persons which could
be brought well within the fold of death sentence.
18. Miss. Shashi Bala Verma, learned A.P.P., had also
highlighted the aspect that the complicity of Pankaj could be well
envisaged from the fact that he had remained absconding right
from the date of occurrence i.e. 12.3.1994 for a period over two
years and the very fact that he had surrendered only on 12.9.1996
i.e. precisely after 27 months could very well go to show that he
was the main brain behind the kidnapping followed by murder of
the victim boy Chhotu.
19. On the other hand, Mr. Shivesh Chandra Mishra,
learned A.P.P., by referring to the evidence and to the specific
questions put to both the accused especially to the appellant
Birendra as with regard to his confessional statement had
submitted that there was no flaw in recording their statement
15
under section 313 Cr.P.C. much less to vitiate the trial and the
consequential impugment judgment.
20. Before we would analyze the aforementioned
submissions of the learned counsel for both the parties it would be
necessary for us to take stock of the evidence which were adduced
both by the prosecution and defence.
21. The prosecution in all had produced ten witnesses
out of whom P.W.1 Lakhan Paswan and P.W.2 Ajay Kumar are
the independent witnesses who have stated with regard to the
occurrence in question to the extent they had seen. P.Ws. 3, 4, 5
and 6 are the family members of the victim boy, P.W.3 Rajesh
Kumar being the elder brother, P.W.4 Bidyanand Paswan, the
informant, the father and P.W.5 Pinki Kumari and P.W.6 Simpi
Kumari the two sisters of the victim boy who had on the fateful
day gone to school together with the victim boy. Apart from them
P.W.7 Dr. Anil Kumar Singh is the Medical Officer who had held
the postmortem and prepared the postmortem report of the victim
boy, whereas P.W.8 Rabindra Sharma is the Officer In-charge
who had investigated the case and submitted charge sheet. In
addition to them P.W.9 Shivajee Malakar is the formal witness to
the seizure of the dead body of the victim boy in the pond at
Khagaria and P.W.10 Sarsawati Devi is a chance witness who had
16
seen the victim boy on the in company of both the appellant
Birendra and the appellant Pankaj on a scooter. The prosecution
has also led documentary evidence in form of Ext. 1, and 1/1
being Fardbeyan and the signature on the Fardbeyan, Ext.2,
Postmortem report, Ext.3 the formal F.I.R., Ext.4, 4/1 and 4/2
seizure lists and the signature thereon, Ext.5 extra judicial
confessional statement of the appellant Birendra, Ext.6 another
seizure list, Ext.7, 7/1 and 7/2 inquest report and the signature on
the inquest report.
22. The defence has also adduced oral evidence of two
witnesses, namely, D.W.1 Laxman Paswan and D.W.2 Krishna
Kumar Singh, both of whom are teachers of the school in question,
where the victim boy was reading and had gone on the fateful day
before his being kidnapped. The defence has also adduced
documentary evidence in form of bringing two attendance register
of school marked as Ext.A and Ext.B respectively.
23. The first and foremost aspect which immediately
comes to our mind as with regard to submission of learned counsel
for the appellants regarding abnormal delay of more than 8 hours
in lodging of the First Information Report regarding an occurrence
taking place around 12:00 noon is the scene in which the
prosecution case has come into existence. It has come on record
17
that the father of the victim boy, a Peon, posted in the office of the
Civil Surgeon, Samstipur was on leave on the fateful day and in
the early morning he had left his house for another village at a
distance of 38-40 K.Ms. and could return back to his home only in
the evening at around 4 O‟clock at a point of time when all other
family members of the victim boy namely his brother and sisters
were frantically searching the victim boy aged about 5½ years
who was missing from the school since afternoon. According to
the case of prosecution the two sisters P.Ws. 5 and 6, with whom
the victim boy had gone to the school had returned back to their
home without any inkling of their younger brother kidnapped and
for them only piece of information available was an answer to
their query from the Class teacher of the victim boy that he had
left the school an hour before closure.
24. It is also on record that the day of the occurrence was
a Saturday and the school hours used to be only upto 12.30 P.M. It
is also said one of the sisters, P.W.5. , had found the school bag of
her brother the victim boy lying in the field of the school which
she had carried to her home. Thus, when the two sisters came back
from the school and had revealed the fact to other family members
that their brother, who had left the school and also come back to
home, the search for him had started. It is again on record by way
18
of evidence of P.W.3 the elder brother that he too joined in the
search and only by that time their father P.W.4 had arrived,
whereafter they could come to know from P.W.2 Ajay Kumar as
with regard to the victim boy being taken away by the two
appellants Birendra and Pankaj on a scooter. To that extent P.W.5
one of the sister has only said that she had also seen the appellant
Pankaj loitering around the school.
25. It is in this background that this Court will have to
view the natural conduct of the father P.W.4 who upon return to
his home from another village also joined his other family
members in searching his missing 5½ years old son. In course of
such search it is said that he came to know from P.W.2 of his son
being taken away by both the appellants Pankaj and Birendra on a
scooter from the outskirt of the school. Let it be kept in mind as
has also come in evidence that appellants Pankaj and Birendra
were not only well acquainted with the victim boy and his family
members but they were also on regular visiting terms to the house
of P.W.4. In this background if the father P.W.4 having acquired
knowledge of his son being in company of the appellant Pankaj
and Birendra had initially gone to their houses in the same village
and having been told by their family members that both Pankaj
and Birendra had left the house early morning at 9 A.M. and had
19
not returned back till late evening, the conduct of P.W.4 in
reporting the matter to the police at 8.15 P.M. i.e. within four
hours of his returning home and making his own search cannot be
said to be a belated much less concocted version while launching
the prosecution with allegation of his son being kidnapped by the
two appellants. This Court, therefore, does not find any merit in
the submission of the learned counsel for the appellants that there
was a delay in institution of the F.I.R.
26. Reference in this connection may be usefully made
to a recent judgment of the Apex Court in the case of Shanmugam
& Anr. Vs. State of Tamil Nadu, reported in (2013) 12 SCC 765,
wherein the effect of delay in lodging of F.I.R. has been well
explained in the following words:-
"9.1. Delay in the lodging of the FIR is not
by itself fatal to the case of the prosecution nor
can delay itself create any suspicion about the
truthfulness of the version given by the informant
just as a prompt lodging of the report may be no
guarantee about its being wholly truthful. So long as
there is cogent and acceptable explanation offered
for the delay it loses its significance.
9.2. Whether or not the explanation is
acceptable will depend upon the facts of each case.
There is no cut and dried formula for determining
whether the explanation is or is not acceptable.
9.3. Having said that, Courts need to bear in
20
mind that delay in lodging of the FIR deprives it of
spontaneity and brings in chances of
embellishments like exaggerations and distortions
in the story which if narrated at the earliest point of
time may have had different contours than what is
eventually recorded in a delayed report about the
occurrence. On the flipside a prompt lodging of the
report may not carry a presumption of truth with
it. Human minds are much too versatile and
innovative to be subject to any such strait-
jacket inferences. Embellishments, distortions, and
false implication of innocence may come not only
out of deliberation which the victim party may hold
among themselves or with their well-wishers and
supporters, but also on account of quick thinking
especially when all that it takes to do so is to name
all those whom the informant or his advisors
perceive to be guilty or inimical towards them.
9.4. Decisions of this Court as to the
advantage of a report lodged promptly and
possibility of embellishment in cases where the
report is delayed, as also the approach which the
Courts ought to adopt while considering the effect
of such delay in a given case are a legion and the
principles of law much too well settled to require
any elaboration or re-statement. Reference can all
the same be made to Meharaj Singh v. State of
U.P (1994) 5 SCC 188, Thulia Kali v. State of
Tamil Nadu (1972) 3 SCC 393, State of
Himachal Pradesh v. Gian Chand (2001) 6 SCC
21
71, Ramdas and Ors. v. State of Maharashtra
(2007) 2 SCC 170, Kilakkatha Parambath Sasi
and Ors. v. State of Kerala (2011) 4 SCC 552 and
Harivandan Babubhai Patel v. State of Gujarat
(2013) 7 SCC 45.
10. There is, in the case before us, delay of
hardly a few hours which the prosecution has
explained to the satisfaction of the Trial Court and
the High Court both. Adikesavan (PW-1), it
appears, returned to the place of occurrence after
the accused persons had left only to find his
brother dead with his face and head severely injured.
According to the witness, he travelled to Harur to
inform his brother- Ramalingam (PW-2) who
accompanied him to the place of occurrence in a car
and then to the police station where Adikesavan
(PW-1) lodged the first information report. Some
time was obviously wasted in this process of
travel to and from the place of occurrence and to
the police station for lodging the report. The
report gave a detailed account of the incident. No
deficiency in terms of the omission of the names
or the role played by the accused was pointed out to
us by the learned counsel appearing for the
appellants. The version given by Adikesavan (PW-
1) has remained consistent with the version given in
the first information report. There is, in that view,
no reason for us to disbelieve the prosecution case
only because the first information report was
delayed by a few hours especially when the
22
delay has been satisfactorily explained. The first
limb of the argument advanced by counsel for the
appellants has, therefore, failed and is hereby
rejected."
27. The ratio laid down in the aforesaid case also fits in
the present case inasmuch as it has come on record in the evidence
of the Investigating Officer that immediately after getting report
and instituting the F.I.R. he had started with P.W.4 to the place of
occurrence i.e. school and had began his search. The Investigating
Officer has stated that he had also gone to the houses of both
appellant Pankaj and appellant Birendra and had found them
missing from their houses but the scooter was found to have been
parked over there which was seized by the police. True it is that in
the seizure list of the scooter there is no timing of such seizure but
the Investigating Officer who had proved the seizure list of
scooter, Ext.4, had also proven the signature of two witnesses
Kishore Kumar and Janardan Kumar as Ext.4/1 and 4/2. In the
cross-examination of the Investigating Officer such seizure
however has not been questioned nor even a word has been
suggested about such seizure list of scooter from the house of
Birendra to be a manufactured document.
28. The criticism as with regard to seizure list being not
authentic on account of non-examination of the two seizure
23
witnesses is also not correct because not only such seizure list has
been proved by the Investigating Officer but also he has stood test
of cross-examination on the point of seizure. In this regard this
Court would also placedreliance on a recent judgment of the Apex
Court in the case of Gian Chand & Ors. Vs. State of Haryana,
reported in (2013) 14 SCC 420, wherein it was held as follows:-
"31. The next question for consideration does
arise as to whether it is necessary to examine an
independent witness and further as to whether a case
can be seen with doubt where all the witnesses are
from the police department.
32. In Rohtash Kumar v. State of Haryana
reported in (2013) 14 SCC 434, this court considered
the issue at length and after placing reliance upon its
earlier judgments came to the conclusion that where
all witnesses are from the police department, their
depositions must be subject to strict scrutiny.
However, the evidence of police officials cannot be
discarded merely on the ground that they belong to
the police force, and are either interested in the
investigating or the prosecuting agency. However, as
far as possible the corroboration of their evidence on
material particulars should be sought. The Court
held as under:
"Thus, a witness is normally considered
to be independent, unless he springs
from sources which are likely to be
tainted and this usually means that the
24
said witness has cause, to bear such
enmity against the accused, so as to
implicate him falsely. In view of the
above, there can be no prohibition to
the effect that a policeman cannot be a
witness, or that his deposition cannot be
relied upon."
(See also: Paras Ram v. State of Haryana, (1992)
4 SCC 662; Balbir Singh v. State, (1996) 11 SCC
139; Akmal Ahmad v. State of Delhi, (1999) 3
SCC 337; M. Prabhulal v. Assistant Director,
Directorate of Revenue Intelligence, (2003) 8 SCC
449; and Ravinderan v. Superintendent of
Customs, (2007) 6 SCC 410.
33. In State, (Govt. of NCT of Delhi) v.
Sunil (2001) 1 SCC 652, this Court examined a
similar issue in a case where no person had agreed to
affix his signature on the document. The Court
observed that (SCC P. 662), Para-21)
"21......it is an archaic notion that
actions of the police officer should be viewed
with initial distrust...... At any rate, the court
cannot begin with the presumption that police
records are untrustworthy. As a proposition of
law the presumption should be the other way
around."
The wise principle of presumption, which is
also recognised by the legislature, is that judicial and
official acts are regularly performed. Hence, when a
police officer gives evidence in court that a certain
25
article was recovered by him on the strength of the
statement made by the accused it is open to the court
to believe that version to be correct if it is not
otherwise shown to be unreliable. The burden is on
the accused, through cross-examination of witnesses
or through other materials, to show that the evidence
of the police officer is unreliable. If the court has any
good reason to suspect the truthfulness of such
records of the police the court could certainly take
into account the fact that no other independent
person was present at the time of recovery. But it is
not a legally approvable procedure to presume that
police action is unreliable to start with, nor to
jettison such action merely for the reason that police
did not collect signatures of independent persons in
the documents made contemporaneous with such
actions.
34. In Appabhai & Anr. v. State of Gujarat
(1998) Supp. SCC 241, this court dealt with the issue
of non-examining the independent witnesses and
held as under : (SCC pp. 245-46, para 11)
"11. ......the prosecution case cannot be
thrown out or doubted on that ground
alone. Experience reminds us that
civilized people are generally
insensitive when a crime is committed
even in their presence. They withdraw
both from the victim and the vigilante.
They keep themselves away from the
Court unless it is inevitable. They think
26
that crime like civil dispute is between
two individuals or parties and they
should not involve themselves. This kind
of apathy of the general public is indeed
unfortunate, butit is there everywhere
whether -in village life, towns or cities.
One cannot ignore this handicap with
which the investigating agency has to
discharge its duties."
35. The principle of law laid down
hereinabove is fully applicable to the facts of the
present case. Therefore, mere non-joining of an
independent witness where the evidence of the
prosecution witnesses may be found to be cogent,
convincing, creditworthy and reliable, cannot cast
doubt on the version forwarded by the prosecution if
there seems to be no reason on record to falsely
implicate the appellants."
29. Thus it is beyond doubt at the time of seizure of the
scooter, appellant Birendra was not found to be present in his
house and in fact it is in the second round of visit of the police in
the dead of night that the appellant Birendra was nabbed
whereafter he had made an extra judicial confession giving the
exact place where he had taken the victim boy and had drowned
him after his killing. The police infact lost no time inasmuch as
27
from Ext.5, the extra judicial confessional statement of the
accused appellant Birendra it would be found that it was recorded
around 3 A.M. in the morning in the night of 12/13th March, 1994,
whereafter he was immediately taken on a police jeep to Khagaria
where he took the police party to the pond in question and brought
out the dead body of the victim boy. These are the basic details
which are not in dispute and thus the criticism on the technicalities
apart, it is the swift action of the police which has at least led to
unfolding of mystery of kidnapping of the victim boy which had
culminated into his gruesome murder.
30. In view of above, if we take much highlighted
submission of the learned counsel for the appellants as with regard
to admissibility of extra judicial confession, the first and foremost
thing which must attract out attention is the order sheet of the
court of the Judicial Magistrate wherein the alleged confessional
statement of the appellant Birendra had been seen by the court on
14.3.1994 itself. Let it be noted that the initial written report on the
basis of which a formal F.I.R. was drawn under section 364 I.P.C.
was also received in the court on the same day i.e. 14.3.1994 and
after recovery of the dead body on the basis of extra judicial
confession the requisition for adding offence under section 302
I.P.C. as also crucial extra judicial confession of the appellant
28
Birendra was filed in the court on the same day which has been
sent to the court on the same day.
31. In view of above it has to be held that there was
hardly any chance for the prosecution to make embellishment for
improving its case. Coupled with this fact when it is also found
that the appellant Birendra was produced before the court and the
seizure list of the scooter had also contained his signature on
13.3.1994 (Ext.4), it becomes absolutely clear that the defence had
never sought to challenge either the seizure of the scooter or
recording of the extra judicial confession both of whom were
produced by the police in the court on 14.3.1994 alongwith the
accused Birendra. In fact the forwarding application of the Officer
In-charge which has been recorded in the order sheet of the court
below will itself go to show that he was produced in the court on
first occasion alongwith his extra judicial confession. Thus, from
all attending circumstances it becomes clear that on nabbing of the
accused Birendra by the police in between the night of 12.3.1994 -
13.3.1994 and after recording of his extra judicial confession at 3
A.M. on 13.3.1994 the police had proceeded to Khagaria town
fromwhere the dead body was recovered in a pond at the behest
and instance of the appellant Birendra.
32. Before we go into the legality and propriety of the
29
aforesaid extra judicial confession of the appellant Birendra on the
basis of which the dead body of the victim boy Chhotu was
recovered it would be necessary for us to take into account as to
what he (Appellant Birendra) had stated before the police at 3
A.M. after he was apprehended at his house while he was
sleeping. The aforesaid extra judicial confession of Birendra is
Ext.5 which has been proven by the Investigating Officer. From its
reading it transpires that the same was recorded at 3 A.M. on
13.3.1994 wherein he had stated that he had his friendship with the
appellant Pankaj for a period over one year and used to spend their
time together. He had also stated that five days earlier Pankaj had
given an idea to him that they should earn some money and had
planned to indulge in kidnapping which was a profitable venture,
inasmuch as money could be easily collected. According to him,
they had planned to kidnap the son of Bidyanand Paswan as he
was engaged in government service and had also acquired money.
The appellant Birendra had further stated that they had
accordingly planned to kidnap the younger son of the informant
(P.W.4) and after full deliberation on 12.3.1994 at about 9 A.M.
he had met the appellant Pankaj and had decided that the son of
P.W.4 should be kidnapped and with this end in sight they had
started waiting for arrival of the son of the informant (P.W.4) at
30
his school. He has also given details of actual execution of act of
kidnapping by disclosing that after Chhotu, the victim boy, son of
the informant, had gone to school at about 10.30 A.M. the
appellant Pankaj had asked him to bring a scooter on the road
connecting the village Maharathpur and wait over there while he
was going to bring Chhotu the victim boy from the school.
32. According to the appellant Birendra, he had gone to
his house and having taken the scooter had gone to assigned place
at Maharathpur road and had started waiting for arrival of Pankaj.
According to him, at about 11.30 A.M. Appellant Pankaj in the
company of victim boy Chhotu had arrived where the appellant
Birendra as per plan was waiting and the appellant Pankaj had
asked him to start the scooter whereafter he alongwith the victim
boy Chhotu had sat on the scooter by ensuring that Chhotu was in
between him and Pankaj. The appellant Birendra has furter given
details of his movement of scooter alongwith the victim boy and
the appellant Pankaj in course of which they had reached at
Begusarai bus stand where he had dropped both Pankaj and the
victim boy and had asked Pankaj to wait for him while he was
going to keep scooter in his house. He has further stated that after
keeping scooter in his house he had again reached Begusarai bus
stand by a tracker at about 2 P.M. and from there all three of them
31
had started for Khagaria by a bus for which the fare also was paid
by him.
34. He has also stated that at about 4 P.M. he in
company of the victim boy and the appellant Pankaj had reached
Khagaria bus stand where they have taken tea and has also given
biscuit to the victim boy. The appellant Birendra in his statement
had also stated that at this stage they had realized that since the
victim boy was well known to the appellant Pankaj they had
planned to do away with the life of the victim boy whereafter they
had decided to write a letter to the father of victim boy, asking for
demand of ransom and eventually escape with the money.
According to the appellant Birendra, with this end in sight they
had gone towards river Gandak and having arrived at Sirhi Ghat at
about 6.30 P.M. firstly they sat with the victim boy and when the
night had set in and there was complete darkness, they had
removed the apparels being worn by the victim boy for showing
them as an evidence for demand of ransom. The appellant
Birendra had stated that the appellant Pankaj had got clothes of the
victim boy removed and thereafter at about 7 P.M. both he and the
appellant Pankaj had throttled the neck of the victim boy for about
1 to 1½ minutes and when the victim boy had died, he (appellant
Birendra) having gone inside the river upto water at his waist level
32
had drowned the dead body of the victim boy and had returned
back to Khagaria Railway Station with the clothes of the victim
boy and from there they had started by train for Begusarai.
35. According to the appellant Birendra, it was appellant
Pankaj who had asked him to throw away the cloth of the victim
boy because that could lead to revelation of their act of kidnapping
the victim boy. The appellant Birendra had stated that when the
train had proceeded from Umesh Nagar Station the appellant
Pankaj had thrown the shirt and trouser of the victim boy and
thereafter both of them having reached Begusarai Station, had
returned to the village Chowk fromwhere they had parted their
company. The appellant Birendra had stated that he reached his
house around quarter to 10 P.M. and having taken his food he had
slept with a plan that he would run away in the morning but in the
meantime he had apprehended by the police in his house. In the
confessional statement he had also said to have informed the
police that he could show the place in Gandak river where he had
thrown the dead body for its being covered and has also said that
the clothes of the victim boy thrown by them in between Umesh
Nagar Railway Station and Sahebpur Kamal Railway Station
could also be recovered as it must have been lying somewhere
around the railway track itself.
33
36. The very purpose of giving to broad gist of
exhaustive extra judicial confession is to only show that the police
had received a clue from the appellant Birendra after he was
apprehended and it is not in doubt that thereafter the police party
having taken the appellant Birendra to Gandak river in Khagaria
town had been able to recover the dead body of the victim boy. To
that extent either recording of the extra judicial confession by the
Police Officer who had proved it as Ext.5 or recovery of the dead
body at the instance of the appellant Birendra has remained
unchallenged as would be apparent from reading of the evidence
of the Police Officer (P.W.8) and especially his cross-examination.
37. A question, therefore, would arise as to what would
be the extent of admissibility of such extra judicial confession.
The law in this regard is well settled, inasmuch as an extra judicial
confession made by the accused by the police in terms of section
27 of the Evidence Act would be admissible as is clear from
proviso to section 27 of the Evidence Act which reads as follows:
" Provided that, when any fact is deposed to as
discovered in consequence of 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 a confession or not, as relates distinctly to the
fact thereby discovered, may be proved."
34
38. Explaining the scope of Section 27 of the Evidence
Act, the Apex Court in the case of State of Maharashtra vs
Suresh reported in (2000)1 SCC 471 had held as follows:-
"We too countenance three possibilities when an accused
points out the place where a dead body or an
incriminating material was concealed without stating that
it was concealed by himself. One is that he himself would
have concealed it. Second is that he would have seen
somebody else concealing it. And the third is that he
would have been told by another person that it was
concealed there. But if the accused declines to tell the
criminal court that his knowledge about the concealment
was on account of one of the last two possibilities the
criminal court can presume that it was concealed by the
accused himself. This is because the accused is the only
person who can offer the explanation as to how else he
came to know of such concealment and if he chooses to
refrain from telling the court as to how else he came to
know of it, the presumption is a well-justified course to
be adopted by the criminal court that the concealment
was made by himself. Such an interpretation is not
inconsistent with the principle embodied in Section 27 of
the Evidence Act."
39. Yet again in the case of Aftab Ahmad Anasari vs
State of Uttaranchal reported in (2010) 2 SCC 583 had held as
follows:-
"There must be a chain of evidence so far complete as
35
not to leave any reasonable ground for conclusion
consistent with the innocence of the accused and it must
be such as to show that within all human probability,
the act must have been done by the accused. Where the
various links in a chain are in themselves complete,
then a false plea or a false defence may be called into
aid only to lend assurance to the court. If the
circumstances proved are consistent with the innocence
of the accused, then the accused is entitled to the benefit
of doubt. However, in applying this principle,
distinction must be made between facts called primary
or basic on the one hand and inference of facts to be
drawn from them on the other."
40. Even in the much celebrated case of Sidhartha
Vashisht @ Manu Sharma vs State(NCT of Delhi) reported in
(2010)6 SCC 1, as with regard to disclosure statement of the
accused persons and their admissibility under Section 27 of the
Evidence Act it was laid down as follows:-
"PW 100, SI Sunil Kumar and PW 101 Inspector
Surender Kumar Sharma deposed that on the early
morning of 5-5-1999 accused Amardeep Singh Gill @
Tony Gill was arrested and he made a voluntary
disclosure vide Ext. PW 100/7 that on 29-4-1999 he had
a talk with Alok Khanna over telephone and thereafter a
telephone call was received at about 8.30 p.m. from
Sidhartha Vashisht @ Manu Sharma. He has further
disclosed that Alok Khanna came to his house in Tata
Sierra Car No. MP 04 V 2634. He has further disclosed
36
that he and Alok Khanna went to Qutub Colonnade in
Alok Khanna's Tata Sierra bearing No. MP 04 V 2634.
Accused Manu Sharma surrendered on 6-5-1999 at
2.30 p.m. at Patiala Guest House, Chandigarh before
Inspector Raman Lamba, PW 87 and ASI Nirbhay Singh,
PW 80. After his arrest accused Manu Sharma had made
four disclosure statements. The first was an oral
disclosure made to Inspector Raman Lamba wherein he
said that he could recover the pistol from Ravinder Sudan
at Mani Majra. However, it was pointed out that the
search of the house at Chandigarh was taken and since
the diary containing the address of Ravinder Sudan could
not be found, no recovery could be affected.
On 7-5-1999, accused Manu Sharma made a
disclosure to Inspector Surender Kumar Sharma, PW 101
which was recorded as Ext. PW 100/12. In the said
disclosure, he disclosed that he was using his younger
brother Kartik's Cellphone No. 9811096893 in making
calls to his friends like Tony Gill, Alok Khanna, Amit
Jhingan and others. He also disclosed the phone numbers
of some of the co-accused and that he handed over his
cell bearing No. 9811096893 to Yograj Singh in
Panchkula and can recover the same. Pursuant to the
disclosure of Sidhartha Vashisht @ Manu Sharma the
mobile phone used by him was recovered from accused
Yograj Singh vide Ext. PW 100/23.
The third disclosure is Ext. PW 100/Article-1 which
was video recorded on 7-5-1999 itself after the accused
was produced before the Metropolitan Magistrate and
copies of which were duly supplied to the accused during
37
trial. From the disclosure Ext. PW 100/Article-1 there
were further discovery of facts admissible under Section
27 of the Evidence Act. Pursuant to the disclosures of
Manu Sharma investigations were carried out and it was
that the accused were in close contact with each other
over phone and accused Manu Sharma had made a
number of calls from the house of Vikas Yadav son of
D.P. Yadav to his house in Chandigarh and to Harvinder
Chopra at Piccadilly.
The fourth disclosure of accused Sidhartha Vashisht
@ Manu Sharma was recorded by PW 101 wherein he
had disclosed that Ravinder Sudan @ Titu having
concealed the pistol, had gone to Manali (H.P.) where he
met his uncle Shyam Sunder and he very well knew the
place where they concealed the pistol and that he could
lead to Manali to recover the pistol used in the incident. It
further came on record that calls were made to USA to
Ravinder Sudan. It may not be out of place to mention
that calls were exchanged between the accused and made
to USA were discovered pursuant to the disclosures made
by the accused persons."
41. Recently in the case of Bhagwan Dass vs State
(NCT) of Delhi, reported in 2011(3) PLJR 241(SC), it has been
held as follows:-
"The accused had given a statement (Ex. PW7/A) to the
SDM in the presence of PW 11 Inspector Nand Kumar
which led to discovery of the electric wire by which the
crime was committed. We are of the opinion that this
38
disclosure was admissible as evidence under Section 27
of the Evidence Act vide Aftab Ahmad Ansari Vs State,
(2010)2 SCC 583(para 40), Manu Sharma vs State,
(2010)6 SCC 1 (paragraphs 234 to 238). In his evidence
the Police Inspector Nand Kumar stated that at the
pointing out of the accused the electric wire with which
the accused is alleged to have strangulated his daughter
was recovered from under a bed in a room."
42. From reading of the aforementioned judgments of the
Apex Court on the issue of extra judicial confession it becomes
absolutely clear that extra judicial confession made by the accused
before the police in terms of sections 25 and 26 of the Evidence
Act is inadmissible and in fact it is only in terms of Section 27 of
the Evidence Act that in certain exceptional circumstances such
extra judicial confession leading to recovery of article or cope
becomes admissible subject to fulfilment of the following test,
namely, (a) accused should be in custody, (b) accused had
voluntarily made extra judicial confessional statement, (c) article
or copes have been recovered at the instance of the accused and
(d) during the course of making of extra judicial confession no
coercive threat or allurement had been given to the accused, as
was also explained by the Apex Court in the case of Aghnoo
Nagesia (supra) wherein it was held as follows:
"9. Section 25 of the Evidence Act is one of the
39
provisions of law dealing with confessions made by an
accused. The law relating to confessions is to be found
generally in Ss. 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 confession
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 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 the form of a proviso, and partially lifts
40
the ban imposed by Ss. 24, 25 and 26. It provides that
when any fact is deposed to as discovered in
consequence of 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 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, 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
41
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."
43. This aspect of the matter was also explained by the
Apex Court in the case of Salim Akhtar @ Mota (supra) wherein
as with regard to disclosure statement before the police by an
accused it was held as follows:
"So far as the disclosure statement of the appellant is
concerned, the same was admittedly made to police
personnel and only that part of the statement would be
admissible which is permissible under S.27 of the
Evidence Act. The scope of this provision was explained
by the Privy Council in the well known case of Pulukuri
Kottaya and others v. emperor, AIR 1947 PC 67, wherein
it was held that it is fallacious to treat the "fact
discovered" within the section as equivalent to the 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 the past user, or
the past history, of the object produced is not related to
its discovery in the setting in which it is discovered.
Therefore, what is admissible is the place from where the
polythene bag containing pistol and other articles was
allegedly recovered."
42
44. Keeping the aforementioned well settled position in
law if the admitted facts are taken into account it readily transpires
from evidence of P.Ws. 3, 4 and 9 that such inculpatoryextra
judicial confession was made by the appellant Birendra when he
was arrested from his house and that he had made extra judicial
confession voluntarily, as a result whereof the dead body of
Chhotu was recovered from Gandak river in Khagaria at the
instance of the appellant Birendra.
45. At this stage it would be necessary to examine the
criticism made of such evidence by Mr. Dhruba Mukherjee,
learned counsel appearing on behalf of the appellant Birendra who
had tried to expose certain discrepancy in the evidence of P.W.9,
the seizure witness to the dead body. According to Mr. Mukherjee
since the Police Officer had denied to have taken P.Ws. 3 and 4 in
the same police jeep in which the police party alongwith the
appellant Birendra had gone from village Chowk after making his
extra judicial confession to Khagaria town, the weakness in the
evidence of the seizure witness to recovery of the dead body at the
instance of the appellant Birendra would be fatal to the
prosecution case. This Court, however, on a close perusal of the
evidence of P.W.9 Shivajee Malakar, a resident of Khagaria town
does not find so inasmuch as had categorically stated that he had
43
gone to take bath in the river at about 6-6.30 A.M. on a Sunday
and in presence of him two police vehicles had come at the Ghat
wherein the police party was also having appellant Birendra in his
company. He has further stated that the police party had asked the
appellant Birendra as to where was the dead body and then the
police party had also recovered a Badhi (cotton thread) worn by
the victim boy in his neck.
46 PW9, the seizure witness has also given details of the
appellant Birendra entering in the river and going upto the level of
waist deep water, whereafter he had brought out the dead body of
a child which was identified by PW4 his father to be that of his
son the victim boy. P.W.9 had also claimed that Birendra had
admitted before the police that he had killed the recovered child
and had submerged him in the water of the river. He had also
proven both materials Ext.1 Badhi recovered by the police as also
seizure list and the inquest report bearing his signature. In his
cross-examination he had remained firm about his being at the
river bank for taking bath at the time of arrival of the police with
the appellant Birendra and has also given the location of Gandak
bridge and the river as also Ghat. It is true that in paragraph 11 of
the cross-examination he had stated that when he had reached he
found many persons to have surrounded the dead body and he had
44
put his signature on the seizure list on being summoned by the
Investigating Officer.
47. Thus, on a perusal of the evidence of P.W.9 this
much becomes clear that the dead body was recovered from the
river in his presence by the police party with the help of the
appellant Birendra and only doubt that may be created is as to
whether the appellant Birendra himself had taken out the dead
body by entering into the water or by someone else on the place
shown by the appellant Birendra had recovered such dead body of
the victim boy. This however would not in any way discredit the
prosecution it has to be kept in mind that none except appellant
Birendra was knowing about the dead body having been
submerged in water and in fact the police party from village
Chowk of the appellant Birendra, where he had made extra
judicial confession, had travelled a distance of 58-60 K.Ms. at a
place claimed by the appellant Birendra where he had said to have
concealed the dead body inside the water of river Gandak. Thus,
much cannot be made out on account of alleged discrepancy in the
evidence of P.W.9.
48. Similarly this Court does not find any merit in the
submission of learned counsel for the appellants that the informant
PW4 was not present at pond in Khagaria. There is no dearth of
45
evidence as with regard to his throughout presence with police
party right from the stage he had lodged the written report at 8.50
P.M. at the police station on 12.3.1994 till recovery of the dead
body and its identification by him (P.W.4). The same infact has
also received support from the evidence of P.W.9 who had
categorically stated in the examination-in-chief that both the dead
body and Badhi worn by his son was identified by P.W.4. This
fact having been not challenged in the cross-examination of P.W.9
the presence of P.W.4 at the Ghat where the dead body was
recovered at the instance of the appellant Birendra itself becomes
an admitted fact.
49. Infact P.W.4 in his examination-in-chief had himself
categorically stated that the appellant Birendra in course of
interrogation by the police at village Chowk, after being
apprehended at his house had stated that the child was killed and
drowned in pond at Khagaria whereafter the Police Officer in
company of the appellant Birendra had gone to the Ghat of the
bank of river Gandak at khagaria, where both Badhi and the dead
body was recovered at a place shown by the appellant Birendra.
He had also stated that the dead body was brought from water to
the bank of the river and he had identified the dead body. In his
cross-examination P.W.4 has remained firm on the point of
46
recovery of the dead body from the river Gandak at Khagaria and
in paragraph no.22 he has reiterated that he had also gone to
Sirhighat Khagaria alongwith the investigating Officer.
50. It is significant to note here that the cross-
examination of PW4 was separately made on behalf of the
appellant Birendra and had also specifically answered that he had
reached at khagaria Sirhighat around 5.30-6 A.M. There is nothing
in the cross-examination made on behalf of the appellant Birendra
which would put a dent on the prosecution story of P.W.4 at the
time of recovery of the dead body of the son at the instance of the
appellant Birendra and in fact when the defence has itself taken
from P.W.4 in cross-examination that the appellant Birendra was
well known to P.W.4 as he was frequently visiting his house and
was also on talking terms with his son as well as had no previous
enmity with the appellant Birendra (para 41) of P.W.4, much
emphasized submission of Mr. Mukherjee putting doubt either on
recording of extra judicial confession or recovery of the dead body
at the instance of the appellant Birendra does not in any way
adversely affect this part of the prosecution case as with regard to
reporting of kidnapping of the victim boy Chhotu by his father
P.W.4 at the police station, the police swinging into action,
making search for both appellant Birendra and appellant Pankaj as
47
also arresting appellant Birendra from his house followed by the
extra judicial confessional statement of the appellant Birendra
before the police, giving clue to the dead body being submerged in
river Gandak at Khagaria and its recovery at the instance of the
appellant Birendra by the police in presence of P.W.4, the father
of the victim boy.
51. From the details of extra judicial confessional
statement of appellant of Birendra followed by recovery of the
dead body of the victim boy at the instance of the appellant
Birendra its authenticity cannot be questioned and therefore, the
citations referred to and relied by both Mr. Rana Pratap Singh,
learned Senior counsel and Mr. Dhruba Mukherjee, appearing for
both the appellants on the scope of Sections 27 and 30 of the
Evidence Act will have little relevance, inasmuch as the Privy
Council in the case of Bhuboni Sahu (supra) had while explaining
Section 30 of the Evidence Act held that the confession of a co-
accused is an evidence of weak type and such confession by itself
does not amount to proof nor such confession can be made
foundation of conviction. This well settled proposition of law
which was sought to be also followed by the Apex Court in the
case of Hari Charan Kurmi and Jogia Hajam (supra) wherein it
was held as follows:
"12. As we have already indicated, this question has been
48
considered on several occasions by judicial decisions and
it has been consistently held that a confession cannot be
treated as evidence which is substantive evidence against
a co-accused person. In dealing with a criminal case
where the prosecution relies upon the confession of one
accused person against other accused person, the proper
approach to adopt is to consider the other evidence
against such an accused person, and if the said evidence
appears to be satisfactory and the court is inclined to hold
that the said evidence may sustain the charge framed
against the said accused person, the court turns to the
confession with a view to assure itself that the conclusion
which it is inclined to draw from the other evidence is
right. As was observed by Sir Lawrence Jenkins in
Emperor v. Lalit Mohan Chockerburty, ILR 38 Cal 559
at p. 588 a confession can only be used to "lend assurance
to other evidence against a co-accused". In Periyaswami
Moopan v. Emperor. ILR 54 Mad 75 at p. 77: (AIR 1931
Mad 177 at p. 178) Reilly, J., observed that the provision
of S. 30 goes not further than this, "where there is
evidence against the co-accused sufficient, "if believed,
to support his conviction, then the kind of confession
described in S. 30 may be thrown into the scale as a
additional reason for believing that evidence." In
Bhuboni Sahu v. The King, 76 Ind App. 147 at p. 155:
(AIR 1949 PC 257 at p. 260) the Privy Council has
expressed the same view. Sir. John Beaumont who spoke
for the Board, observed that
" a confession of a co-accused is obviously
evidence of a very weak type. It does not indeed
49
come within the definition of "evidence"
contained in S. 3 of the Evidence Act. It is not
required to be give on oath, nor in the presence of
the accused, and it cannot be tested by cross-
examination. It is a much weaker type of evidence
than the evidence of an approver, which is not
subject to any of those infirmities. Section 30,
however, provides that the Court may take the
confession into consideration and thereby, no
doubt, makes it evidence on which the court may
act; but the section does not say that the
confession is to amount to proof. Clearly there
must be other evidence. The confession is only
one element in the consideration of all the facts
proved in the case; it can be put into the scale and
weighed with the other evidence."
It would be noticed that as a result of the provisions
contained in S. 30, the confession has no doubt to be
regarded as amounting to evidence in a general way.
Because whatever is considered by the Court is evidence;
circumstances which are consider by the court as well as
probabilities do amount to evidence in that generic sense.
Thus, though confession may be regarded as evidence in
that generic sense because of the provisions of S. 30, the
fact remains that is not evidence as defined by S. 3 of the
Act. The result, therefore, is that in dealing with a case
against an accused person, the court cannot start with the
confession of co-accused person; it must begin with other
evidence adduced by the prosecution and after it has
formed its opinion with regard to the quality and effect of
50
the said evidence, then it is permissible to turn to the
confession in order to receive assurance to the conclusion
of guilt which the judicial mind is about to reach on the
said other evidence. That, briefly stated, is the effect of
the provisions contained is S. 30. The same view has
been expressed by this Court in Kashmira Singh v. State
of Madhya Pradesh, 1952 SCR 526: (AIR 1952 SC 159)
where the decision of the Privy Council in Bhuboni
Sahu's case, 76 Ind. App 147 (AIR 1949 PC 257) has
been cited with approval."
52. At this juncture this Court also must take into
account that the issue with regard to confession of accused and its
admissibility in evidence both against himself as also against co-
accused has been gone at length in a recent judgment of the Apex
Court in the case of State of Maharashtra vs. Kamal Ahmed
Mohammed Vakil Ansari & ors., reported in (2013)12 SCC 17,
wherein it has been held as follows:
"19. The issue in hand can also be
examined from another perspective, though on the
same reasoning. Ordinarily, as already noticed
hereinabove, a confessional statement is admissible
only as against an accused who has made it. There
is only one exception to the aforesaid rule, wherein
it is permissible to use a confessional statement,
even against person(s) other than the one who had
made it. The aforesaid exception has been
provided for in Section 30 of the Evidence Act,
which is being extracted hereunder:-
51
"30. Consideration of proved confession
affecting person making it and others
jointly under trial for same offence- When
more persons than one are being tried jointly
for the same offence, and a confession made by
one of such persons affecting himself and some
other of such persons is proved, the Court may
take into consideration such confession as
against such other person as well as against
the person who makes such confession.
* * *
Illustrations
(a) A and B are jointly tried for the
murder of C. It is proved that A said -
"B and I murdered C". The Court may
consider the effect of this confession as
against B.
(b) A is on his trial for the murder of C.
There is evidence to show that C was
murdered by A and B, and that B said, "A
and I murdered C".
This statement may not be taken into
consideration by the Court against A, as B is not
being jointly tried."
As is evident from a perusal of Section 30 extracted
above, a confessional statement can be used even
against a co-accused. For such admissibility it is
imperative, that the person making the confession
besides implicating himself, also implicates others
52
who are being jointly tried with him. In that
situation alone, such a confessional statement is
relevant even against the others implicated.
20. Insofar as the present controversy is
concerned, the substantive provision of Section 30 of
the Evidence Act has clearly no applicability
because Sadiq Israr Shaikh, Arif Badruddin Shaikh
and Ansar Ahmad Badshah have not implicated any
of the accused-respondents herein. The importance
of Section 30 of the Evidence Act, insofar as the
present controversy is concerned, emerges from
illustration (b) thereunder, which substantiates to
the hilt one of the conclusions already drawn by us
above. Illustration (b) leaves no room for any
doubt, that unless the person who has made a
confessional statement is an accused in a case, the
confessional statement made by him is not relevant.
None of the accused in Special Case no. 4 of 2009 is
an accused in Special Case no. 21 of 2006. As
such, in terms of illustration (b) under Section 30 of
the Evidence Act, we are of the view, that the
confessional statement made by the accused in
Special Case no. 4 of 2009, cannot be proved as a
confessional statement, in Special Case no. 21 of
2006. This conclusion has been recorded by us, on
the admitted position, that the accused in Special
Case no. 4 of 2009 are different from the accused
in Special Case no. 21 of 2006. And further
because, Special Case no. 4 of 2009 is not being
jointly tried with Special Case no. 21 of 2006.
53
Therefore, even though Section 30 is not strictly
relevant, insofar as the present controversy is
concerned, yet the principle of admissibility,
conclusively emerging from illustration (b) under
Section 30 of the Evidence Act, persuades us to add
the same to the underlying common thread, that
finds place in the provisions of the Evidence
Act, pertaining to admissions/confessions.
That, an admission/confession is admissible only
as against the person who has made it.
21. We have already recorded above, the
basis for making a confessional statement
admissible. Namely, human conduct per se restrains
an individual from accepting any kind of liability or
implication. When such liability and/or
implication is acknowledged by the individual as
against himself, the provisions of the Evidence
Act make such confessional statements
admissible. Additionally, since a confessional
statement is to be used principally as against the
person making it, the maker of the confession will
have an opportunity to contest the same under
Section 31 of the Evidence Act, not only by
producing independent evidence therefor, but also,
because he will have an opportunity to contest the
veracity of the said confessional statement, by
effectively cross-examining the witness produced
to substantiate the same. Such an opportunity,
would also be available to all other co-accused
who would be confronted with a confessional
54
statement made by an accused against them (as in
Section 30 of the Evidence Act), as they too would
have an opportunity to contest the confessional
statement made by the accused, in the same
manner as the author of the confession.
22. Illustration (b) under Section 30 of the
Evidence Act contemplates a situation wherein
the author of the confessional statement is not a
co-accused. Illustration (b) renders such
confessional statements inadmissible. There is, it
may be noticed, no room for testing the veracity of
the said confessional statement, either at the hands
of the person who made it, or by the person against
whom it is made. For adopting illustration (b) under
Section 30 to the reasoning recorded above, the
same be read as under:-
"...This statement may not be taken into
consideration by the court against A (the
accused facing trial), as B (the person who
made the confession) is not being jointly
tried."
Illustration (b) makes such a confessional statement
inadmissible for the
sole reason, that the person who made the
confession, is not a co-accused in the case.
Again, the underlying principle brought out
through illustration (b) under Section 30 of the
Evidence Act is, that a confessional statement is
relevant only and only, if the author of
confessional statement himself is an accused in
55
a case, where the confessional statement is being
proved."
53. Having thus regard to the settled law as with regard to
scope of Section 27 read with Section 30 of the Evidence Act in
respect of extra judicial confession, its effect on both the
appellants has to be considered in the light of the law laid down by
the Apex Court, such extra judicial confession of appellant
Birendra being inculpatory in nature in view of illustration (a) of
Section 30 of Evidence Act and law laid down by Apex Court in
the case of Kamal Ahmed (supra) would also bind the appellant
Pankaj as with regard to his alleged association and being part of
the plan beginning from the school and culminating into causing
death of the victim boy as stated by the appellant Birendra in his
extra judicial confession. This aspect of the matter infact was also
explained way back by the Apex Court in the case of Kashmira
Singh v. State of M.P., reported in AIR 1952 SC 159, wherein
while approving the observation of Sir Lawrence Jenkins that a
confession can only be used to „lend assurance to other evidence
against a co-accused‟ law was laid down as with regard to use of
extra judicial confession of one accused against another co-
accused in the following terms:
"10. Translating these observations into concrete terms
they come to this. The proper way to approach a case of
this kind is, first, to marshal the evidence against the
56
accused excluding the confession altogether from
consideration and see whether, if it is believed, a
conviction could safely be based on it. If it is capable of
belief independently of the confession, then of course it is
not necessary to call the confession in aid. But cases may
arise where the Judge is not prepared to act on the other
evidence as it stands even though, if believed, it would be
sufficient to sustain a conviction. In such an event the
Judge may call in aid the confession and use it to lend
assurance to the other evidence and thus fortify himself
in believing what without the aid of the confession he
would not be prepared to accept."
54. This Court therefore in view of the law laid down in
the case of Kamal Ahmed (supra) will have great difficulty in
accepting the submission of Mr. Rana Pratap Singh, learned
Senior counsel for the appellant Pankaj, that the extra judicial
confession made by the appellant Birendra in no way will bind the
appellant Pankaj. Before considering this aspect as with regard to
involvement of appellant Pankaj it would be necessary to deal
with the submission of Mr. Dhruba Mukherjee, learned Counsel
for appellant Birendra who had also tried to somehow take the
same line for the appellant Birendra that the extra judicial
confession of appellant Birendra before the police even to the
extent of recovery of the dead body of victim boy at his instance in
river Gandak in Khagaria will also not bind him. To that extent
57
reference made by him to the judgment of the Apex Court in the
case of Chattar Singh (supra) seems to be wholly misplaced,
inasmuch as whatever has been said therein is with regard to
caution which the court has to adopt in finding out as to whether
such extra judicial confession was extracted by way of threat,
coercion or inducement, inasmuch as it was held therein that:
"17. Confessions may be divided into two classes i.e.
judicial and extra-judicial. Judicial confessions are those
which are made before a Magistrate or a court in the
course of judicial proceedings. Extra-judicial confessions
are those which are made by the party elsewhere than
before a Magistrate or court. Extra-judicial confessions
are generally those that are made by a party to or before a
private individual which includes even a judicial officer
in his private capacity. It also includes a Magistrate who
is not especially empowered to record confessions under
Section 164 of the Code of Criminal Procedure, 1973 (for
short the 'Code') or a Magistrate so empowered but
receiving the confession at a stage when Section 164 of
the Code does not apply. As to extra-judicial confessions,
two questions arise : (i) were they made voluntarily? and
(ii) are they true? As the section enacts, a confession
made by an accused person is irrelevant in criminal
proceedings, if the making of the confession appears to
the court to have been caused by any inducement, threat
or promise, (1) having reference to the charge against the
accused person, (2) proceeding from a person in
authority, and (3) sufficient, in the opinion of the court to
58
give the accused person grounds which would appear to
him reasonable for supposing that by making it he would
gain any advantage or avoid any evil of a temporal nature
in reference to the proceedings against him. It follows
that a confession would be voluntary if it is made by the
accused in a fit state of mind, and if it is not caused by
any inducement, threat or promise which has reference to
the charge against him, proceeding from a person in
authority. It would not be involuntary, if the inducement,
(a) does not have reference to the charge against the
accused person; or (b) it does not proceed from a person
in authority; or (c) it is not sufficient, in the opinion of
the court to give the accused person grounds which
would appear to him reasonable for supposing that, by
making it, he would gain any advantage or avoid any evil
of a temporal nature in reference to the proceedings
against him. Whether or not the confession was voluntary
would depend upon the facts and circumstances of each
case, judged in the light of Section 24 of the Indian
Evidence Act, 1872 (in short 'Evidence Act'). The law is
clear that a confession cannot be used against an accused
person unless the court is satisfied that it was voluntary
and at that stage the question whether it is true or false
does not arise. If the facts and circumstances surrounding
the making of a confession appear to cast a doubt on the
veracity or voluntariness of the confession, the court may
refuse to act upon the confession, even if it is admissible
in evidence. One important question, in regard to which
the court has to be satisfied with is, whether when the
accused made the confession, he was a free man or his
59
movements were controlled by the police either by
themselves or through some other agency employed by
them for the purpose of securing such a confession. The
question whether a confession is voluntary or not is
always a question of fact. All the factors and all the
circumstances of the case, including the important factors
of the time given for reflection, scope of the accused
getting a feeling of threat, inducement or promise, must
be considered before deciding whether the court is
satisfied that in its opinion the impression caused by the
inducement, threat or promise, if any, has been fully
removed. A free and voluntary confession is deserving of
the highest credit, because it is presumed to flow from
the highest sense of guilt. (See R. v. Warickshall) It is not
to be conceived that a man would be induced to make a
free and voluntary confession of guilt, so contrary to the
feelings and principles of human nature, if the facts
confessed were not true. Deliberate and voluntary
confessions of guilt, if clearly proved, are among the
most effectual proofs in law. An involuntary confession
is one which is not the result of the free will of the maker
of it. So where the statement is made as a result of
harassment and continuous interrogation for several
hours after the person is treated as an offender and
accused, such statement must be regarded as involuntary.
The inducement may take the form of a promise or of a
threat, and often the inducement involves both promise
and threat, a promise of forgiveness if disclosure is made
and threat of prosecution if it is not. (See Woodroffe's
Evidence, 9th Edn., p. 284.) A promise is always attached
60
to the confession alternative while a threat is always
attached to the silence alternative; thus, in one case the
prisoner is measuring the net advantage of the promise,
minus the general undesirability of a false confession, as
against the present unsatisfactory situation; while in the
other case he is measuring the net advantages of the
present satisfactory situation, minus the general
undesirability of the confession against the threatened
harm. It must be borne in mind that every inducement,
threat or promise does not vitiate a confession. Since the
object of the rule is to exclude only those confessions
which are testimonially untrustworthy, the inducement,
threat or promise must be such as is calculated to lead to
an untrue confession. On the aforesaid analysis the court
is to determine the absence or presence of an inducement,
promise etc. or its sufficiency and how or in what
measure it worked on the mind of the accused. If the
inducement, promise or threat is sufficient in the opinion
of the court, to give the accused person grounds which
would appear to him reasonable for supposing that by
making it he would gain any advantage or avoid any evil,
it is enough to exclude the confession. The words "appear
to him" in the last part of the section refer to the
mentality of the accused.
18. An extra-judicial confession, if voluntary and true
and made in a fit state of mind, can be relied upon by the
court. The confession will have to be proved like any
other fact. The value of the evidence as to confession,
like any other evidence, depends upon the veracity of the
witness to whom it has been made. The value of the
61
evidence as to the confession depends on the reliability of
the witness who gives the evidence. It is not open to any
court to start with a presumption that extra-judicial
confession is a weak type of evidence. It would depend
on the nature of the circumstances, the time when the
confession was made and the credibility of the witnesses
who speak to such a confession. Such a confession can be
relied upon and conviction can be founded thereon if the
evidence about the confession comes from the mouth of
witnesses who appear to be unbiased, not even remotely
inimical to the accused, and in respect of whom nothing
is brought out which may tend to indicate that he may
have a motive of attributing an untruthful statement to the
accused, the words spoken to by the witness are clear,
unambiguous and unmistakably convey that the accused
is the perpetrator of the crime and nothing is omitted by
the witness which may militate against it. After
subjecting the evidence of the witness to a rigorous test
on the touchstone of credibility, the extra-judicial
confession can be accepted and can be the basis of a
conviction if it passes the test of credibility."
55. Having thus regard to the nature of extra judicial
confession of the appellant Birendra and no trace of any threat or
coercion found from the evidence this Court will have no
difficulty in at least holding that the dead body of victim boy was
recovered at a place from Gandak river at Khagaria at the instance
of Birendra. The question, however would still be as to how
prosecution can link the kidnapping of the victim boy Chhotu
62
from the school by both the appellants the ultimate recovery of his
dead body from the river Gandak. The prosecution in this regard
has relied on three witnesses, namely, P.W.1, P.W.2 and P.W.10,
all of whom have only stated that they had seen both the
appellants in company of the victim boy Chhotu.
56. In this backdrop if we examine the evidence of most
crucial witness i.e. P.W.2 Ajay Kumar it would be found that he
has virtually remained unshaken on this crucial point. Let it be
noted that Ajay Kumar was aged about 10 years at the time of
occurrence on 12.3.1994 and in fact his statement under section
164 Cr.P.C. had been recorded by the court on 23.3.1994 wherein
he had unequivocally stated only two facts, namely, that he had
seen both the accused Pankaj and Birendra present near the school
wherein Birendra had parked his scooter and fromwhere he had
also seen the victim boy in their company to have been taken away
on the scooter. A question would arise why a boy of ten years of
age will make such a false statement in court?
57 Infact from reading of the evidence of P.W.2 it would
be clear that he had supported that every thing which he had even
earlier said in his statement under section 164 Cr.P.C. on
23.3.1994 in court. P.W.2 in examination-in-chief on 10.9.1997
i.e. after 3½ years of institution of the police case and his age at
63
that point of time also shown to be 15 years in his examination-in-
chief he had stated that he very well knew the victim boy Chhotu
who on a Saturday, some 3½ years earlier, had been picked up and
taken away on a red colour scooter of appellant Birendra Yadav.
He had given the details of the appellant Birendra‟s activity who
was cleaning the plug of his scooter near the boring of P.W.2 as
also exchange of words between the appellant Birendra and the
appellant Pankaj, wherein the appellant Pankaj had asked the
appellant Birendra as to whether the scooter had been repaired and
on being informed in affirmative he had gone towards the school
fromwhere he had returned after ten minutes in company of the
victim boy whereafter all three of them had gone towards eastern
side on the scooter. He had also stated that he had informed
P.W.4, father of the victim boy, as with regard to his being taken
away by the two appellants and he had proved his statement under
section 164 Cr.P.C. recorded on 23.3.1994 in the court as Ext.1.
58. In his cross-examination whatever was suggested to
him for establishing enmity could not shake his clear and
categorical averments in the examination-in-chief. In fact on being
asked he had explained that he was student of Class VIII at the
time of occurrence and that on fateful day he had not gone to the
school. Whatever was asked from him by way of name of the
64
school and its whereabouts was successfully explained by him and
the same has also not been controverted much less contradicted in
any manner by any witness. In fact he also stood firm on his
version that he had remained stationed at his boring in connection
with irrigation of his land and he had also even answered the
reason for his going to village Chowk in his return journey from
boring to his house where the informant with others were making
enquiry about the missing victim boy. Though his attention also
was drawn towards his earlier statement under section 164 Cr.P.C.
in paragraph 13 of his cross-examination but nothing could be
taken away from him which could shake either in his evidence in
examination-in-chief or his earlier statement under section 164
Cr.P.C. In paragraph 20 of his cross-examination he had shown his
awareness of purpose and requirement of cleaning of the plug in a
scooter and therefore, on a perusal of the evidence of P.W.2 this
much becomes clear that his categorical version that he had seen
both the accused persons, namely, appellant Birendra and
appellant Pankaj in company of the victim boy Chhotu had
remained wholly undisturbed.
59. It is in this backdrop that this Court would also
examine the evidence of two other witnesses, namely, P.W.1 and
P.W.10 who had also stated to have seen the victim boy Chhotu in
65
company of both the appellants. P.W.1 is an independent witness
who is a Thela puller. He in examination-in-Chief had stated to
have seen the victim boy in company of Pankaj at about 11 A.M.
on the date of occurrence wherein Pankaj was holding the victim
boy Chhotu by his finger. He had only stated that in the night at
about 9 P.M. when he had returned back from his work and had
heard that Chhotu was missing and he had informed the mother of
Chhotu that it was Pankaj who had taken away Chhotu. The
Examination-in-chief being very limited, whatever was suggested
to him in cross-examination of being related to P.W.4 was totally
denied by him and in absence of any supporting evidence the same
cannot be questioned. His giving information of Chhotu in
company of Pankaj only to the mother of victim boy has been
criticized by the learned counsel for the appellants on the ground
that such information ought to have been given to the father of
Chhotu but then the timing given by him of 9 P.M. when
admittedly P.W.4, the father, was in the police station and from
their had moved with the police in search of Chhotu the victim
boy either at the house of Pankaj or appellant Birendra will not
discredit his limited version of he having seen Chhotu in the
company of the only appellant Pankaj.
60. It has to be noted that if P.W.1 was really brought to
66
improve the prosecution case he could have very well also
implicated the appellant Birendra but then he had only named only
appellant Pankaj. Thus, P.W.1 in fact has also very successfully
distinguished the event that had taken place in between 12.3.1994
the date on which Chhotu was missing and the date on which the
dead body was brought to the house i.e. 13.3.1994 after the
postmortem was held at Khagaria around 10.40 A.M. It would
thus become clear that whatever has been stated by P.W.1 in
paragraph 12 is all about 13.3.1994 when the dead body of Chhotu
was brought after postmortem to the house and therefore, by that
time if extra judicial confession of the appellant Birendra was
already available on the basis of which the dead body was
recovered, there was no meaning for P.W.1 to have also gone to
the father of the victim boy Chhotu or to the police to say about
his having seen Chhotu in the company of Pankaj. To that extent
the denial of the Investigating Officer to the statement of P.W.1
about Chhotu being taken by Pankaj towards Maharathpur road
was absolutely beyond his examination-in-chief wherein he did
not say a word about having in seen Pankaj at Maharathpur road
but only in the vicinity of school and therefore, the same in no
way would affect the veracity of P.W.1. In fact when P.W.1 had
also categorically denied to have gone to Khagaria at the time of
67
recovery of the dead body of Chhotu his being subjected to cross-
examination of both very aspect was not going to help the defence
in any manner.
61. Thus, this Court will have no difficulty in relying on
the independent corroborative evidence of P.W.1 who of course
has not been named in the F.I.R. by the informant P.W.4 as a
source of information alike P.W.2. The reason for the same,
however, is also very clear inasmuch as P.W.4 had already left the
house in search of his missing son Chhotu immediately after his
arrival at 4 P.M. and he did not come back to his house till he had
gone to the Police Station and the police had lodged his written
report and moved with the police for searching his son after going
to the house of the appellant Pankaj and appellant Birendra or
ultimately to Khagaria on getting clues of his son through the
appellant Birendra in his extra judicial confession.
62. That would leave this Court to go to the only more
witness on the point of Chhotu being in company of these two
accused persons and she again is an independent witness, namely,
P.W.10 Sarsawati Devi who is a domestic worker. In her evidence
in court she has stated that she had seen the victim boy Chhotu in
company of Pankaj who was holding Chhotu by his finger. To the
aforementioned limited averment made in examination-in-Chief
68
when she was cross-examined she had not only denied to his
relationship with the family of P.W.4 but had stated that she had
gone for cutting the grass in the farm at 7 A.M. early in the
morning and had returned to her house around 12 O‟clock,
whereafter she had again gone to Bazar (market) at 4 P.M. and had
returned at 7 P.M. The criticism on her evidence by the learned
counsel for the appellants that whatever she had stated was on the
basis of hearsay is with regard to reference of the earlier statement
recorded in the cross-examination where she had stated about
recovery of the dead body of Chhotu who was said to have been
killed and his dead body thrown in the river Gandak. Thus, this
Court would not find anything strikingly different or weak in the
evidence of P.W.10 who again had stated this much that she had
seen while his return journey after his cutting grass Chhotu, the
victim boy in company of Pankaj.
63. The evidence of P.W.1 and P.W.10 in fact would in
no way go to improve the prosecution case beyond what was said
by P.W.2 and therefore, the entire prosecution case revolves
around the version of P.W.2 who had seen the appellant Pankaj to
have parked the scooter near the house of boring, cleaning the
plug of the scooter, talking Pankaj and Birendra together, Pankaj
asking Birendra whether the scooter had been repaired, Pankaj
69
thereafter going to the vicinity of the school and coming back with
the victim boy Chhotu holding his finger and thereafter all three of
them i.e. Pankaj, Birendra and Chhotu going away from school on
scooter. Therefore, it becomes clear that its only one part of
Chhotu was in company of Pankaj has been stated either by P.W.1
or P.W.10 which even otherwise gets fully corroborated from the
description given by P.W.2, who had stated so not only in the
court in course of deposition during trial but has said the same
thing at the earliest point of time when he was examined also in
the court under section 164 Cr.P.C. Ext.1, therefore, would also
automatically clinch the issue in favour of P.W.2 being a reliable
witness and further his remaining wholly unshaken in course of
cross-examination.
64. Once this aspect becomes clear that the two
appellants were seen in company of the victim boy Chhotu and
they had left together on scooter, it may be very well a case of last
seen because hereinafter it was for the accused persons to explain
as to when they had parted with the company of Chhotu. Chhotu
was a boy aged about only 5½ years and therefore, if in the extra
judicial confession which was admitted by Birendra that he
alongwith Pankaj had taken him on a bus to Khagaria where they
had planned to kill him because Chhotu was well versed about
70
both Pankaj and Birendra who were on visiting terms to their
house, this Court would not find the prosecution to have failed to
establish the link from the village Lagauli to Khagaria because if
the distance of 58-60 K.Ms. as stated by P.W.3 in his deposition
between village Lagauli and Khagaria had been covered by the
two persons initially on a scooter and thereafter having left the
scooter, on a bus it was a matter within the special knowledge of
the accused persons and they had to explain it in terms of Section
106 of the Evidence Act. In this regard this Court has gone into
the statement made by the accused Birendra under Section 313
Cr.P.C. whose attention was specifically drawn towards his
making extra judicial confession and recovery of the dead body
pursuant to such extra judicial confession but then he has given no
explanation whatsoever except a bald and a blank denial. If that
was the attitude of the appellant Birendra, Pankaj had no favour
for himself because it has to be always kept in mind that the
appellant Pankaj was evading his arrest and in fact had remained
absconding for a period of 27 months ever since 12.3.1994 before
his surrendering in court on 27.6.1996.
65. Thus, in view of the evidence of P.Ws. 1, 2 and 10
the prosecution has been able to establish the theory of last seen of
the appellants with the victim boy Chhotu whose dead body was
71
recovered from the river Gandak at the instance of the appellant
Birendra. The theory of last seen is a case of circumstantial
evidence and it has been consistently laid down by the Apex Court
that where a case rests squarely on circumstantial evidence, the
interference of guilt can be justified only when all the
incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the guilt of
other person. It is here that Section 106 of the Evidence Act will
come to the rescue of the prosecution, inasmuch as after it has
been proved by the prosecution in form of at least evidence three
witnesses namely PW1, PW2 and PW10 that Chhotu from the
school was firstly taken away by the appellant Pankaj, who
thereafter in league with the appellant Birendra had taken away
from the scooter whereafter his dead body was found at a place
shown by the appellant Birendra, it will be for them i.e. appellant
Birendra and the appellant Pankaj to say as to what had happened
with the victim boy Chhotu, inasmuch as these facts were within
their special knowledge. It has to be noted that the circumstance in
this regard was specifically brought to both the appellants in their
statement under section 313 Cr.P.C. but they had offered no
explanation whatsoever.
66. In this context it would be useful to first refer to the
72
question put to the appellant Birendra Kumar Yadav whose
statement under section 313 Cr.P.C. was recorded on 18.8.2009 in
the following terms:
Q.No.1: Have heard the deposition of the witnesses?
Ans.: Yes,
Q.No.2: It has come in evidence of the witnesses that on
12.3.1994 at about 10.30 A.M. you with co-accused Pankaj Kumar
Singh having hatched a conspiracy had kidnapped Bikram @
Chhotu aged about 5½ years, son of the informant Vidya Paswan
for ransom from the Primary School, Adarsh Nagar, Lagauli,
District Begusarai where he had gone to study with his sister and
both of you have thereafter killed him. What have you to say?
Ans.: No.
Q.No.3: The witnesses have also deposed in their
evidence that in that night after being arrested you had voluntarily
made your confession before the police and other persons present
on the basis of which you yourself had brought out the dead body
from Gandak River at 6.30 A.M. on 13.3.1994 as also a yellow
shining Badhi of Babadham recovered from the side of Ghat of
Gandak river which was recovered and identified. What have you
to say?
Ans.: No.
73
Q.No.4: Have you to say anything in your defence?
Ans.: I am innocent.
67. I would thus be seen that the appellant Birendra was
specifically put to all the circumstances for which the evidence
were laid by the prosecution as has been discussed above and yet
the facts which were within his special knowledge i.e. after he had
seen last in the company of the deceased, he had to at least give
his explanations. He, however, has refused to do so. The very fact
that he even had denied to have made an extra judicial confession
leading to recovery of the dead body of the victim boy, an aspect
which has been clearly proven by the prosecution would go to
show that the appellant Birendra had tried to adopt evasive attitude
and fail to divulge the facts which were specifically within his
knowledge.
68. As against appellant Pankaj though the same
questions which were asked from the appellant Birendra were put
in and he too had given exactly the same answer and therefore,
assuming that he could not have said anything about question No.3
being one related to extra judicial confession of appellant Birendra
he had still to give his explanation as with regard to his being last
seen in the company with the victim boy but he too had failed to
give any explanation.
74
69. The reliance placed by the learned counsel for the
appellants on the judgment of the Apex Court as with regard to
adverse effect on the prosecution on account of not putting all the
relevant circumstances to the appellant accused under section 313
Cr.P.C. seems to be also wholly misplaced, inasmuch as in a case
of last seen before recovery of the dead body at the instance of one
of the accused nothing more was required to be put in. This Court
is not impressed with the submission of Mr. Mukherjee that the
circumstance relating to recovery of the scooter was not put in to
the appellant Birendra. Such recovery of scooter from the house of
the appellant was only a forerunner to nabbing of the appellant
Birendra, inasmuch as it has come in evidence that when the
police in the first round had gone to the house of the appellant
Birendra and has seized the scooter he was not present in the
house fromwhere the scooter was seized. It is only subsequently
that the police in course of second visit could nab the appellant
Birendra from his house and therefore, the prosecution was not
required to even put this aspect relating to seizure of the scooter, a
fact which has been proved by the Investigating Officer in course
of his deposition by proving the seizure list of the scooter.
70. This aspect with regard to onus of proving a fact
within the special knowledge of a person is governed by the
75
provision of Section-106 of the Evidence Act. In the present case
the prosecution had brought evidence to show that the victim boy
was last seen in their company. The prosecution had also proved
that in course of arrest of the appellant Birendra he had made extra
judicial inculpatory confession as with regard to both himself and
the appellant Pankaj on the basis of which the dead body was
recovered at the place shown and in presence of the appellant
Birendra. If these circumstances where, therefore put to the
appellant in their examination under Section-313 Cr.P.C. it was
for them to explain the facts within their knowledge. In this regard
this Court would rely on the following passages of the judgment of
the Apex Court in the case of Gian Chand (supra) :-
20. Thus, in view of the above, it is a
settled legal proposition that once possession of the
contraband articles is established, the burden shifts
on the accused to establish that he had no knowledge
of the same.
21. Additionally, it can also be held that
once the possession of the contraband material
with the accused is established, the accused has to
establish how he came to be in possession of the
same as it is within his special knowledge and
therefore, the case falls within the ambit of the
provisions of Section 106 of the Evidence Act,
1872 (hereinafter referred to as `the 1872 Act ).
22. In State of West Bengal v. Mir
76
Mohammad Omar reported in (2000) 8 SCC 382,
this Court held that if the fact is specifically in
the knowledge of any person, then the burden of
proving that fact is upon him. It is impossible for
the prosecution to prove certain facts particularly
within the knowledge of accused. Section 106 is
not intended to relieve the prosecution of its burden
to prove the guilt of the accused beyond reasonable
doubt. But the Section would apply to cases where
the prosecution has succeeded in proving facts from
which a reasonable inference can be drawn regarding
the existence of certain other facts, unless the
accused by virtue of his special knowledge
regarding such facts, failed to offer any
explanation which might drive the Court to draw a
different inference.
"38. .....Section 106 of the Evidence Act
is designed to meet certain exceptional cases, in
which, it would be impossible for the prosecution to
establish certain facts which are particularly within
the knowledge of the accused". (SCC p. 393, para
38) (emphasis supplied)
(See also: Shambhu Nath Mehra v. The State of
Ajmer AIR 1956 SC 404; Gunwantlal v. The State
of Madhya Pradesh AIR (1972) 2 SCC 194 ; Sucha
Singh v. State of Punjab (2001) 4 SCC 375;
Sahadevan @ Sagadevan v. State, (2003) 1 SCC
534; Durga Prasad Gupta v. The State of Rajasthan
(2003) 12 SCC 257 ; Santosh Kumar Singh v. State
(2010) 9 SCC 747; Manu Sao v. State of Bihar
77
(2010) 12 SCC 310; Neel Kumar v. State of Haryana
(2012) 5 SCC 766).
23. Learned counsel for the appellants has
placed much reliance upon the judgment of this
Court in State of Punjab v. Hari Singh (2009) 4
SCC 200, wherein placing reliance upon the
earlier judgment in Avtar Singh & Ors. v. State of
Punjab, (2002) 7 SCC 419, it was held that if the
incriminating material i.e., the issue relating to
possession had not been put to the accused under
Section 313 Cr.P.C. the principles of natural justice
stand violated and the judgment stands vitiated.
24. So far as the judgment in Avtar Singh
(supra) is concerned, it has been considered by this
Court in Megh Singh v. State of Punjab (2003) 8
SCC 666. The Court held that the circumstantial
flexibility, one additional or different fact may make
a world of difference between conclusions in two
cases or between two accused in the same case. Each
case depends on its own facts and a close similarity
between one case and another is not enough
because a single significant detail may alter the
entire aspect. It is more pronounced in criminal cases
where the backbone of adjudication is fact based.
25. In Avtar Singh (supra), the contraband
articles were being carried in a truck. There were
several persons in the truck. Some of them fled and
it could not be established by evidence that
anyone of them had conscious possession. While
the accused was examined under Section 313
78
Cr.P.C. the essence of accusations was not brought
to his notice, particularly with respect to the
aspect of possession. It was also noticed that the
possibility of the accused persons being labourers of
the truck was not ruled out by evidence. Since the
decision was rendered on special consideration of
several peculiar factual aspects specially noticed in
that case, it cannot be of any assistance in all the
cases. Therefore, it is evident that Avtar Singh
(supra) does not lay down the law of universal
application as it had been decided on its own
facts.
26. So far as Section 313 Cr.P.C. is
concerned, undoubtedly, the attention of the
accused must specifically be brought to
inculpatory pieces of evidence to give him an
opportunity to offer an explanation if he chooses to
do so. A three-Judge Bench of this Court in Wasim
Khan v. The State of U.P. AIR 1956 SC 400; and
Bhoor Singh & Anr. v. State of Punjab, (1974) SCC
754 held that every error or omission in compliance
of the provisions of Section 342 of the old
Cr.P.C. does not necessarily vitiate trial. The
accused must show that some prejudice has been
caused or was likely to have been caused to him.
27. In Asraf Ali v. State of Assam, (2008)
16 SCC 328, a similar view has been reiterated by
this Court observing that: (SCC p. 334, para 21)
"21...... all material circumstances appearing
in the evidence against the accused are
79
required to be put to him specifically..... and
failure to do so amounts to serious
irregularity vitiating trial, if it is shown that
the accused was prejudiced."
(emphasis supplied)
28. In Shivaji Sahebrao Bobade & Anr. v. State
of Maharashtra, (1973) 2 SCC 793, a three-Judge
Bench of this Court held that:(SCC p. 806, para
16)
"16. .......basic fairness of a criminal trial may
gravely imperil the validity of the trial itself, if
consequential miscarriage of justice has
flowed. However, where such an omission has
occurred it does not ipso facto vitiate the
proceedings and prejudice occasioned by such
defect, must be established by the accused."
(emphasis supplied)
29. In Paramjeet Singh v. State of Uttarakhand,
(2010) 10 SCC 439, after considering large number
of cases on the issue, this Court held as under:
(SCC p. 451, para 30)
"30. Thus, it is evident from the above that
the provisions of Section 313 Cr. P.C make it
obligatory for the court to question the accused
on the evidence and circumstances against him
so as to offer the accused an opportunity to
explain the same. But, it would not be enough
for the accused to show that he has not been
80
questioned or examined on a particular
circumstance, instead he must show that such
non-examination has actually and materially
prejudiced him and has resulted in the failure of
justice. In other words, in the event of an
inadvertent omission on the part of the court to
question the accused on any incriminating
circumstance cannot ipso facto vitiate the trial
unless it is shown that some material prejudice
was caused to the accused by the omission of
the court" (emphasis supplied )
30. In the instant case the issue relating to non-
compliance of the provisions of Section 313 Cr.P.C.
has not been raised before the High Court, and it is
raised for the first time before this Court. Learned
counsel for the appellants could not point out what
prejudice has been caused to them if the fact of
"conscious possession" has not been put to them.
Even otherwise such an issue cannot be raised in the
existing facts and circumstances of the case wherein
the burden was on the accused to show how the
contraband material came to be found in the
vehicle which was driven by one of them and the
other two were travelling in that vehicle."
71. This Court in fact has failed to appreciate as to how
the ratio laid down in the case of Ranvir Yadav (supra) can be
made applicable. In the case of Ranvir Yadav (supra) an adverse
inference was drawn against the prosecution that no accusation
81
specifically was put in question during the examination of the
accused with regard to firing, inasmuch as the questions were
confined only to kidnapping. Thus, whatever was said in the case
of Ranvir Yadav (supra) has to be left confined to the facts of that
case which in no way will be applicable in the case of the
appellants. For the same reason this Court would also not find
applicability of the judgment of the Division Bench in the case of
Ratan Sao (supra) wherein it was held that the signature of the
accused persons had been taken on the format without complying
the mandatory provision under section 313 Cr.P.C.
72. Mr. Mukherjee had also made great efforts to
establish that the prosecution had in fact failed to prove that the
victim boy Chhotu had gone to school on the fateful day.
Reference in this connection was specifically made to non-
examination of „Jairam Sir‟, the school teacher from whom his
sisters (P.Ws. 5 and 6) had made enquiry about Chhotu leaving the
Class room after school hours.
73. In the considered opinion of this Court there would
be however no dearth of materials to show that Chhotu on the
fateful day had left with his two sisters (P.Ws. 5 and 6) for the
school. To that extent it would be useful to discuss with the
evidence of P.Ws. 5 and 6, the two sisters of the victim boy
82
Chhotu.
74. P.W.5 in his examination-in-chief had stated that
Vikram @ Chhotu was his brother and on 12.3.1994 at 10.30 A.M.
she with Chhotu and Simpi (P.W.6) had gone to school where
prayers had already been concluded. She had further stated that at
12.30 P.M. she had come out of the Class room and had gone to
the Class room of Chhotu where he was not present and when she
had asked Jairam Master Sahab he had informed that Chhotu had
left the school an hour earlier. She had also said that she had found
the school bag of Chhotu in the premises of the school and she
having collected such school bag had returned to her house with
her younger sister Simpi (P.W.6) and had stated about Chhotu
being not present in the school to her mother. She had further
stated that they all had started searching Chhotu but he could not
be traced and his dead body in that night was recovered from
Khagaria where his Badhi and Darador (black thread worn around
back) were recovered. In her examination-in-chief she had also
stated that when she had come out of the Class room during the
period school was functioning for having a glass of water she had
seen the appellant Pankaj moving around the school on a cycle.
She had also stated that Pankaj was well acquainted with Chhotu.
She had also stated that the police had come to the village in the
83
night and had arrested the appellant Birendra Yadav.
75. In her cross-examination she had stated that she was
born in the year 1987 and had passed her matriculation in the year
2002 and at the time of her deposition she was student of
Intermediate. Her deposition was recorded on 16.9.2003 and
therefore if on that day on her own showing she was around
seventeen years of age she could be around eight years of age on
the date of occurrence i.e. 12.3.1994. It has to be noted that when
P.W.5 was cross-examined on behalf of the appellant Birendra she
had specifically answered that she was very well known to
Birendra who was her villager with whom she was acquainted
from her childhood and in fact they were on visiting term to the
houses of each other. She had also categorically denied to have
gone to Khagaria and in paragraph no.6 of her cross-examination
she had reaffirmed that on 12.3.1994 Chhotu had gone to school
and when he had reached prayers were over and attendance had
already been taken.
76. In further cross-examination on behalf of the
appellant Pankaj Singh she (PW6) had explained that her house
was at a distance of 150-200 yards from the school and the house
of Pankaj was in between her house and the school. She had also
given the distance of the house of Pankaj being at 75 yards from
84
the school. In her cross-examination she had also stated that
Pankaj was also frequently visiting her house and in fact Pankaj
was friendly with her family members. She on being further
probed had also stated that the appellant Pankaj used to be on
talking terms with both her father and mother. As with regard to
going of school of Chhotu she had categorically answered that all
the three brother and sisters used to go to the school together and
on that day also she had gone to her Class room after leaving
Chhotu in her Class room. She had further stated that when she
had gone in her own Class room the teacher had already been
there. She had also confirmed that she had left the school at 12.30
p.m. and at that point of time she could not find out Chhotu in the
school.
77. This Court infact has gone into the evidence of P.W.5
carefully because her name has been given by the informant in the
written report and this Court does not find anything unusual in the
behaviour of an elder sister who had been to the school together
with his younger brother and younger sister Simpi (P.W.6). In fact
from the evidence of P.W.5 only three things can be culled out,
namely, Chhotu, the victim boy, on the fateful day had gone
together with P.W.5 to school and she had seen appellant Pankaj
loitering near the school and further that Chhotu was found to be
85
missing at the time of dispersal of the school, whereafter she had
gone to her home and had informed her mother, whereafter search
had started. Additionally, this becomes clear from her evidence
and which could not be shaken in her cross-examination that both
the appellants Birendra and Pankaj were well known to her family
and the victim boy was also close to both of them on account of
their being on visiting and talking terms with the family members
including their parents.
78. The evidence of P.W.6, younger to P.W.5 but elder to
the victim boy Chhotu, being also almost of the same nature, this
Court is not required to record her deposition at length but then
she had also stood to the test of cross-examination where she had
stated that she had never gone to Khagaria and in fact she could
come to know from her father that the dead body of Chhotu was
recovered from the river Gandak alongwith his Darador and Badhi
of Babadham. P.W.6, Simpi Kumari, younger sister of P.W.5, had
also remained completely unshaken in her cross-examination
made on behalf of the appellant Pankaj Singh, inasmuch as she
had also given full detail of the school building having three
cemented Class rooms and two classes being run in hutments
where teaching was going on upto Class V. She had also given the
name of the teachers of the school as Upendra Singh, Pandit Jee,
86
Bimla Devi and Jairam Sir apart from the Headmaster. While
giving the topography of the school she had also stated that there
was no boundary wall of the school.
79. Thus, presence of Chhotu in the school on the fateful
day after he had gone together over there with his sisters P.Ws.5
and 6 has been successfully proven by the prosecution. In fact to
that extent the reliance placed by the learned counsel for the
appellants on the evidence of D.W.1, the Acting Headmaster of
the school, who had joined in the year 2004 and had appeared with
the attendance register of the year 1994 would not be of any
relevance because even when the attendance register was shown
both on 11.3.1994 and 12.3.1994 the fact remains that both P.Ws.
5 and 6 in their deposition in court had stated that they had
reached the school late while prayers were over and the attendance
have already been taken. In that view of the matter, the submission
of Mr. Mukherjee cannot be accepted that the very inception of the
prosecution case on account of Chhotu not going to school has not
been proven by the prosecution. To that extent this Court does not
find that non-examination of Jairam Sir, the Class teacher of the
victim boy, in any manner has adversely affected the prosecution.
80. The submission of the learned counsel for the
appellants that the prosecution did not establish any motive for
87
kidnapping and subsequent killing of the victim boy Chhotu has to
be also understood in the context that since Chhotu was well
known to both appellant Pankaj and appellant Birendra. This boy
aged about 5 years and reading in Class I was not expected to be
aware of any enmity or motive for going together with the
appellants. As noted above, it has come in evidence of P.Ws. 3, 4,
5 and 6, the four family members of the victim boy Chhotu that
both the appellant Pankaj and Birendra used to frequently visit the
house. Thus, merely because the prosecution did not bring out any
motive for Chhotu being taken away by the appellants that would
not lead to prosecution case being altogether disbelieved. As noted
above, the time gap between Chhotu‟s missing and his search
having started being almost four hours and the police also having
swing into action well within eight hours, if no demand for ransom
could be made on account of hovering presence of the police in
whose company the informant had remained at least for 8.15 P.M.
till recovery of the dead body of Chhotu in the next morning at
6.30 A.M., much cannot be said by the defence only on account of
lack of any evidence with regard to demand of ransom.
81. The evidence of P.W.3, the elder brother of Chhotu
another son of the informant, P.W.4, in fact would only
corroborate whatever was stated by P.W.2 as with regard to both
88
the appellants having taken away Chhotu with them. P.W.3 Rajesh
Kumar had clearly stated that his younger brother Chhotu, P.W.5
Pinki and P.W.6 Silpi had gone together the school but only his
two sisters had come back while his brother Chhotu had not
returned and on enquiry both the sisters had informed that Chhotu
had left the school an hour earlier and his school bag was found in
the campus of the school. He had also stated that thereafter he
along with his father (PW4) who also by that time was there had
started searching for Chhotu in course of which P.W.2 had
informed both him and his father that he (PW2) had seen the
appellant Birendra to have parked his scooter near boring of P.W.2
and was cleaning his plug. He had also stated that PW2 had
informed that the appellant Pankaj had also come near the scooter
at least on two occasions and thereafter had gone towards the
school. P.W.3 had also stated that it was P.W.2 who had informed
him that Pankaj had brought Chhotu from the school, whereafter
both Pankaj and Birendra had taken Chhotu on scooter towards
Maharathpur. He had also stated that the appellant Birendra was
arrested in the night by the police and the appellant Birendra had
made confession stating that he had strangulated Chhotu to death
and had drowned the dead body in river at Khagaria Sirhighat. In
his examination-in-chief he had also stated that he had gone
89
together with his father and police party along with appellant
Birendra to Khagaria Sirhighat and at the Ghat, Badhi worn by his
brother Chhotu in his neck was found and the appellant Birendra
had stated that he and Pankaj had strangulated Chhotu at that very
place. He had further stated that it was the appellant Birendra who
having entered inside the water in river had brought out the dead
body of Chhotu whereafter the inquest report of Chhotu was
prepared.
82. In his cross-examination PW3 had not only given the
full details with topography of the school and the access of the
school from two sides but had categorically denied the suggestion
given to him that on 12.3.1994 his brother Chhotu and his two
sisters had not gone to the school. He had also categorically stated
about the appellant Birendra to have been arrested in his presence
and after being arrested from his house was brought on the road
near Chowk of the village. He had also denied of there being any
injury on the person of the appellant Birendra after his arrest. In
his cross-examination which was separately made on behalf of the
appellant Pankaj he had stated that he had gone to Khagaria
alongwith police and his father and had reached Khagaria around
5.30-6 in the morning and was with Investigating Officer. Though
it is true that in his cross-examination he had stated something
90
about arrest of Birendra which was not stated by him before the
police but then such minor discrepancy in the cross-examination
of P.W.3 who at best is a witness to corroborate the version of
P.W.2, and P.W.5 with regard to attending circumstances mostly
after acquiring knowledge of Chhotu not returning from the school
either in course of search or in course of recovery of dead body,
his evidence is only going to help the prosecution that P.W.3 being
the elder son of the family member was his father P.W.4 in his bid
to search and recover his younger brother Chhotu. In fact in his
cross-examination he had also made it clear that though the school
timing was 10.30 to 4 O‟clock but on the fateful day being
Saturday the school was only upto 12.30 P.M.
83. PW3 infact could not be shaken in his cross
examination in his supportive role as corroborative witness
inasmuch as he had explained that school was open from all side
(paragraph no.12 of P.W.3). In his cross-examination he also on
being asked on behalf of the appellant Birendra had explained that
his father was not in the house prior to 4 P.M., inasmuch as he had
gone to village Sudhran which was at a distance of 30 K.Ms. from
his village. He had also given timing when he alongwith his father
had to come out to search Chhotu and has clarified that after
Chhotu could not be found out between 4.30 P.M. to 8 O‟clock
91
information was given to the police at Barauni Police Station
which was at a distance of 5 K.Ms. from his village which they
had covered by motorcycle. From his cross-examination it
becomes clear that immediately after recording of the written
report of P.W.4, father of P.W.3, police had come to the village
for investigation in course of which it had gone to the house of
Birendra who was found to have been sleeping in his verandah and
after interrogating him and taking into custody they had proceeded
towards Khagaria.
84. PW3 to a court question had also answered that
Birendra was alongwith the police party while going to Khagaria
and while continuing with the cross-examination by the defence he
had stated that on the police jeep he, appellant Birendra, his father
were together with the police team. He had also given the distance
of Khagaria from the village of Birendra to be around 50-60 K.Ms.
He has also stood firm in the cross-examination as with regard to
recovery of Badhi of the deceased victim boy and had stated that
the Investigating Officer had not employed service of any diver
for recovery of the dead body and in fact it was the appellant
Birendra who had taken out the dead body from the water of the
river. He had also denied to have received any letter or phone
demanding ransom though he had stated that he was knowing the
92
appellant Birendra for at least 6-7 years prior to occurrence and
that at the time of occurrence appellant Birendra was a student.
85. Thus, the evidence of P.W.3 is only in form of
corroboration of facts which were stated by the other witnesses
and in fact he seems to be a dutiful son who was in company with
his father while searching for the victim boy Chhotu.
86. There is nothing much to discuss in the evidence of
P.W.4, who is the informant. He infact had clearly stated that he
had returned to house only at 4.30 P.M. on the fateful day
whereafter he came to know that his son Chhotu had not returned
from the school and when he started making search he could come
to know from P.W.2 that he had seen the appellant Birendra to
park his scooter near boring of P.W.2 and also appellant Pankaj in
the company of appellant Birendra. He had also precisely stated
the same fact that it was appellant Pankaj who had gone to the
school and had brought Chhotu from the school, whereafter he
alongwith the appellant Birendra and Chhotu had left the place i.e.
boring of P.W.2 on a scooter. In his examination-in-chief he has
further stated that when he had gone to the police station the
Police Officer had asked him to give in writing and that is how he
had filed his written report whereafter the police had made search
in course of which Pankaj was found to be missing in his house
93
whereas the appellant Birendra was found in house and when
Birendra was arrested and interrogated, he had shown his inability
to return the child, inasmuch as he had already killed and drowned
in the river at Khagaria. According to him, the Police Officer had
asked the appellant Birendra as to why he had killed Chhotu and
on the same reply of the appellant Birendra was that he had done
so for ransom and had added that since he (Birendra) was well
known, Chhotu was done to death. He too has given rest of the
details of going to Khagaria alongwith the police party and
Birendra as also recovery of Badhi and the dead body of Chhotu
by the appellant Birendra as other witnesses.
87. From the cross-examination of P.W.4, the informant,
who again is a hearsay witness, it would be clear that he had
frankly stated that he had not gone to his place of posting, being
the office of the Civil Surgeon, Samastipur and that he on the
fateful day had actually gone to another village Sudharan which
was at a distance of 30-35 K.Ms. involving travelling time of 2½
to 3 hours. He had also denied the suggestion that anyone had
gone to inform him of his son Chhotu missing from the school.
P.W.5 had stood test of cross-examination both while giving the
distance of boring of P.W.2 to be at a distance of 25 yards
fromwhere P.W.2 had seen the entire occurrence relating to taking
94
away of Chhotu by both the appellants and had also clarified that
he had not only made enquiry from P.W.2 but also from the other
persons who had claimed that they had not seen his son Chhotu.
He had also very clearly answered that he had neither seen his son
going to school nor he was present when his daughters had
returned from the school without Chhotu and in fact he had filed
his written report to the police on the basis of information received
by him from P.W.2 Ajay Pandit as also to limited version given to
him by his two daughters. Though this witness was also separately
examined on behalf of both the appellants nothing could be taken
from him so as to discredit his evidence, inasmuch as he had also
clarified that when he had started searching his missing son
Chhotu he was not having any impression that his son has been
kidnapped and/or killed and in fact he had initially filed his case
only with regard to his son being kidnapped. In view of the
evidence of P.W.5 it thus becomes clear that when the police was
informed of Chhotu being only kidnapped by both the appellants,
it had swing into action and within a space of 3-4 hours the
appellant Birendra was apprehended, whereafter he had given his
confessional statement on the basis of which the dead body was
recovered at a distance of around 60 K.Ms. from the house of the
informant and the appellants. Thus, P.W.5 also has to be also
95
treated as a corroborating witness to the version of P.W.2, who in
fact appears to be most prominent witness to establish the factum
of the victim boy Chhotu being taken away by both the appellants,
whereafter his dead body was found at the instance of one of the
two of the appellants.
88. Learned counsel for the appellants in this regard
though had made vivid criticism of P.Ws. 3 and 4 to be not
reliable witnesses because they had made certain statement with
regard to movement of the police after the alleged arrest of the
appellant Birendra but then, as noted above, the extra judicial
confession of the appellants being the basis for recovery of the
dead body, and such extra judicial confession also reaching the
court within 24 hours at the time the appellant Birendra was
produced before the Magistrate will ultimately not give any scope
to the appellants to question the limited use of oral evidence of
P.Ws. 3 and 4.
89. Learned counsel for the appellants have, however,
sought to question the movement of Barauni Police by referring to
the provision of Section 166 Cr.P.C. and one of the submissions is
that since the case was registered in Barauni Police Station within
Begusarai District if the information was received as with regard
to dead body being available in another district i.e. Khagaria
96
district it was imperative on the part of the Investigating Officer to
first seek permission of the Magistrate in Khagaria district before
proceeding to make recovery of the dead body.
90. In the considered opinion of this Court the provisions
of Section 166 Cr.P.C. have to be considered in the backdrop of
the facts of the case. Section 166 Cr.P.C. lays down as follows:
"166. When officer in charge of police station may
require another to issue search-warrant.-
(1) An officer in charge of a police station or a police
officer not being below the rank of sub-inspector making
an investigation may require an officer in charge of
another police station, whether in the same or a different
district, to cause a search to be made in any place, in any
case in which the former officer might cause such search
to be made, within the limits of his own station.
(2) Such officer, on being so required, shall proceed
according to the provisions of section 165, and shall
forward the thing found, if any, to the officer at whose
request the search was made.
(3) Whenever there is reason to believe that the delay
occasioned by requiring an officer in charge of another
police station to cause a search to be made under sub-
section (1) might result in evidence of the commission of
an offence being concealed or destroyed, it shall be
lawful for an officer in charge of a police station or a
police officer making any investigation under this
Chapter to search, or cause to be searched, any place in
the limits of another police station in accordance with the
97
provisions of section 165, as if such place were within
the limits of his own police station.
(4) Any officer conducting a search under sub-section (3)
shall forthwith send notice of the search to the officer in
charge of the police station within the limits of which
such place is situate, and shall also send with such notice
a copy of the list (if any) prepared under section 100, and
shall also send to the nearest Magistrate empowered to
take cognizance of the offence, copies of the records
referred to in sub-section (1) and (3) of section 165.
(5) The owner or occupier of the place searched shall, on
application, be furnished free of cost with a copy of any
record sent to the Magistrate under sub-section (4)."
91. As would be apparent sub-section (3) of Section 166
Cr.P.C. carves out an exception for immediately acting on the part
of the Investigating Officer, In-charge of a Police Station
investigating the case when he has to make such search and
seizure under the jurisdiction of another police station. It
categorically says that where he has reasons to believe that on
account of delay which could be caused in requiring an Officer In-
charge of another police station whether in the same or different
district to make such search and seizure he can himself proceed to
make such search and seizure. In the present case there are ample
evidence to show that co-operation was also sought of the Officer
In-charge of Khagaria Police Station, inasmuch as the inquest
98
report prepared at bank of river Gandak where Badhi was
recovered also contains the signature of Sushil Kumar Jha, Sub
Inspector of Police, Khagaria and the Investigating Officer
(P.W.8) in his cross-examination had stated that he had taken
assistance of Sushil Kumar Jha in course of investigation at the
river bank of Khagaria. The presence of Khagaria Police at the
river bank has also been supported by the independent seizure
witness, P.W.9 Shivajee Malakar wherein he had categorically
stated that the two police vehicles one of Khagaria police force
and another of Begusarai police force had come at the river bank.
There is infact no challenge to the presence of Khagaria police
including the aforesaid Sushil Kumar Jha and therefore, a formal
permission in terms of section 166(4) Cr.P.C. may be an
irregularity but then that will not vitiate either the investigation or
the prosecution case in any manner.
92. As a matter of fact the Investigating Officer (PW8)
in his evidence has also fully supported the case of prosecution
inasmuch as his specific statement in his examination of Chief of
either recording the written report of PW4 at 8.15 pm in the police
station, has rusting to place of occurrence by Jeep at 8.30 p.m. his
first search and seizure of the house of appellant Birendra and
recovery of the scooter and preparation of seizure list, Exhibit-4
99
his subsequent visit to the house of appellant Birendra in the dead
of night and arrest of Birendra from his house as well as his
making extra judicial confession leading to recovery of the dead
body of the victim boy at Khagaria Sirhighat from the river
Gandak have not all been challenged by the defence.
93. Infact whatever contradiction have been obtained by
defence from the I.O. in his cross examination on the issue of the
victim boy on the point of going to school in the fateful day gets
fully obliterated from paragraph no. 2 of the evidence of I.O.
wherein he had stated that he was informed by the witnesses
including PW2 and PW4 that the two appellants had taken away
the victim boy on the red colour scooter from the road in front of
baring. The fact this part of story was fully supported by PW2 not
only in his statement before police but also in court in his
statement under Section 164 Cr.P.C. also rules out the inherent
defect of in investigation through the I.O. could have still made
better efforts to collect more connecting link such as clothes of
victim boy thrown away by the appellants from train. As a matter
of fact the I.O. in Para-5 has also explained that he was informed
by the father of victim boy that on the fateful day victim boy had
gone to school though a day earlier he did not go to school.
94. Thus the submission of Mr. Dhruba Mukherjee that
100
the Investigating Officer (P.W.8) did not make any effort either to
trace clothes of the victim boy which was said to have been
thrown away by the appellants in course of extra judicial
confession by the appellant Birendra or that P.W.8 despite being
made aware from such extra judicial confession that the two
appellants having got down from the bus at Khagaria had taken tea
and had also given biscuit from a tea shop near the Ghat had yet
not made any effort to search and examine that particular tea shop
owner may be lacuna in the investigation but then after recovery
of the dead body at the instance of the appellant Birendra these all
will pale into insignificance because neither recovery of the
clothes worn by the victim boy nor examination of the tea shop
owner could have unfolded anything more in a case of present
nature based on circumstantial evidence of last seen.
95. In any event a faulty investigation by the police can
never be detrimental and the prosecution case cannot be allowed
to suffer only on account of faulty investigation as was held by the
Apex Court in the case of State of Karnataka vs. Yarappa Reddy,
reported in AIR 2000 SC 185, wherein it has been held as follows:
"Even if the investigation is illegal or even suspicious the
rest of the evidence must be scrutinized independently of
the impact of it. Otherwise the criminal trial will
plummet to the level of the investigating officers ruling
the roost. ..... Criminal justice should not be made a
101
casualty for the wrongs committed by the investigating
officers in the case. In other words, if the Court is
convinced that the testimony of a witness to the
occurrence is true, the Court is free to act on it albeit
investigating officer‟s suspicious role in the case."
96. This view was again reiterated by the Apex Court in
the case of Prithvi (Minor) v. Mam Raj & ors., reported in 2005
SCC (Cri) 198, wherein it was held as follows:
"17. Assuming that there was faulty investigation by the
investigating officer, it could hardly be a ground for
rejection of the testimony of Prithvi which had a ring of
truth in it. We may recount here the observation of this
Court in Allarakha K. Mansuri v. State of Gujarat, SCC
at p.64, para 8, that:
" The defects in the investigation holding it to be
shaky and creating doubts also appears to be the
result of the imaginative thought of the trial court.
Otherwise also, defective investigation by itself
cannot be made a ground for acquitting the accused."
97. Yet another submission of Mr. Dhruba Mukherjee
was that the medical evidence does not fit in with the prosecution
case, inasmuch as whatever was stated by the appellant Birendra
in his extra judicial confession as with regard to manner of
strangulation was bound to be reflective by way of presence of
injury over the Hyote. It has to be kept in mind that there is no eye
102
witness to the actual occurrence as to how minor victim boy aged
about 5½ years was done to death and in fact as noted above it is a
case of last seen. The prosecution has never claimed his death to
have taken place in a particular manner. The dead body on being
found was sent for postmortem report and the doctor who had
conducted the postmortem at 10.20 A.M. on 13.3.1994 had found
the following ante-mortem injury:
"1. A bruise 1"x1/2" reddish colour over right upper neck
just lateral to midline.
2. An abrasion ½"x1/4" over left upper lip just above
angle of mouth.
On dissection:- blood and blood clots were present in
the underlying tissues in association with above
mentioned injuries. Muscles were congested in the neck
in association with injury no.1. Trachea injuries were
congested. Lungs were enlarged, congested and
contained froth. Viscera were found congested. Heart was
congested and chambers were full of blood and vessel
contained blood and blood clots."
All the above mentioned injuries were ante mortem in
nature caused by hard and blunt sustance.
Death was due to asphyxia due to strangulation.
Time elapsed since death within 24 hours since the
P.M.examination."
98. It has to be noted that the doctor has found the death
caused due to asphyxia on account of strangulation. It has to be
kept in mind that the doctor had also found the time since death to
103
be 24 hours which would fit in with the prosecution case,
inasmuch as the boy was missing after 11.30 A.M. on 12.3.1994
and his postmortem held on 13.3.1994 on 10.20 A.M. only
confirmed the said timing. Thus, when no cross-examination was
also made on this score, there would be no difficulty for this Court
to hold that the medical evidence also in no way can discredit the
prosecution case which, as noted above, was confined to deceased
minor boy being last seen in company with the appellants.
Reference in this connection may be made to the judgment of the
Apex Court in the case of Kathi Bharat Vajsur v. State of Gujarat,
reported in (2012)5 SCC 724, wherein it was held as follows:
"When the medical evidence is in consonance with the
principal part of the oral/ ocular evidence thereby
supporting the prosecution story, there is no question of
ruling out the ocular evidence merely on the ground that
there are some inconsistencies or contradiction in the oral
evidence."
99. Thus, on overall analysis this Court would find that
the prosecution has proven its case beyond reasonable doubt as
against both the appellants which, as noted above, is based on the
theory of last seen. It is true that the guilt of the accused has to be
proved beyond reasonable doubt in order to convict him but then
the facts of each case and the circumstances surrounding the
offence will also have to be taken into account. At a point of time
104
when the kidnapping in this State had become an order of the day
and particularly in Begusarai district where such occurrence was/
is quite common the standard of proof will also have to be
modulated, inasmuch as in such cases where kidnapping takes
place followed by murder of kidnapped person the presence of eye
witness is impossible as the accused himself ensures absence of
such material evidence on the point of actual assault or killing.
Thus, the presence of proof in each criminal case of kidnapping
will have to be examined from the surrounding circumstances.
100. Reference in this connection may usefully be made
to the judgment of the Apex Court in the case of State of U.P. v.
Krishna Gopal, reported in (1988) 4 SCC 302, wherein it was held
as follows:
"25. A person has, no doubt, a profound right not to be
convicted of an offence which is not established by the
evidential standard of proof beyond reasonable doubt.
Though this standard is a higher standard, there is,
however, no absolute standard. What degree of
probability amounts to „proof‟ is an exercise particular to
each case. Referring to of probability amounts to „proof‟
is an exercise the inter-dependence of evidence and the
confirmation of one piece of evidence by another a
learned author says:
"The simple multiplication rule does not apply if the
separate pieces of evidence are dependent. Two events
are dependent when they tend to occur together, and the
105
evidence of such events may also be said to be
dependent. In a criminal case, different pieces of
evidence directed to establishing that the defendant did
the prohibited act with the specified state of mind are
generally dependent. A juror may feel doubt whether to
credit an alleged confession, and doubt whether to infer
guilt from the fact that the defendant fled from justice.
But since it is generally guilty rather than innocent
people who make confessions, and guilty rather than
innocent people who run away, the two doubts. are not to
be multiplied together. The one piece of evidence may
confirm the other."
Doubts would be called reasonable if they are free
from a zest for abstract speculation. Law cannot afford
any favourite other than truth. To constitute reasonable
doubt, it must be free from an over emotional response.
Doubts must be actual and substantial doubts as to the
guilt of the accused person arising from the evidence, or
from the lack of it, as opposed to mere vague
apprehensions. A reasonable doubt is not an imaginary,
trivial or a merely possible doubt; but a fair doubt based
upon reason and common-sense. It must grow out of the
evidence in the case.
26. The concepts of probability, and the degrees of it,
cannot obviously be expressed in terms of units to be
mathematically enumerated as to how many of such units
constitute proof beyond reasonable doubt. There is an
unmistakable subjective element. in the evaluation of the
degrees of probability and the quantum of proof. Forensic
probability must, in the last analysis, rest on a robust
106
common sense and, ultimately, on the trained intuitions
of the judge. While the protection given by the criminal
process to the accused persons is not to be eroded, at the
same time, uninformed legitimisation of trivialities would
make a mockery of administration of criminal justice."
101. The same view was again reiterated by the Apex
Court in the case of Gurbachan Singh v. Satpal Singh, reported in
(1990)1 SCC 445, wherein it was held as follows:
"4........ The standard adopted must be the standard
adopted by a prudent man which, of course, may vary
from case to case, circumstances to circumstances.
Exaggeration devotion to the rule of benefit of doubt
must not nurture fanciful doubts or lingering suspicions
and thereby destroy social defence. Justice cannot be
made sterile on the plea that it is better to let hundred
guilty escape than punish an innocent. Letting guilty
escape is not doing justice, according to law.
5. The conscience of the court can never be bound by
any rule by that is coming itself dictates the
consciousness and prudent exercise of the judgment.
Reasonable doubt is simply that degree of doubt which
would permit a reasonable and just man to come to a
conclusion. Reasonableness of the doubt must be
commensurate with the nature of the offence to
investigated."
102. In view of the aforementioned authoritative
pronouncement of the Apex Court there will be no difficulty for
107
this Court in holding that P.W.2 is a reliable witness who had seen
both the appellants in company of the victim boy who had left on
the scooter from his boring which is at a distance of less than 100
yards from the school after the victim boy was brought by the
appellant Pankaj from the school near the boring of PW2 where
Birendra had parked in scooter and was waiting. True it is that no
one has seen the appellant Pankaj taking away the victim boy from
the school to the boring but then there is evidence of P.W.2 to
show that the victim boy came in company holding the finger of
Pankaj to the boring and from there both the appellants having got
the victim boy seated in between had taken away from the boring.
103. There are also two witnesses P.W.1 and P.W.10
who also claim to have seen the appellant Pankaj in company with
the victim boy Chhotu. Similarly, P.W.10 also had named the
appellant Pankaj to be in company with the victim boy Chhotu.
The very fact that both P.W.1 and P.W.10 had claimed that they
had seen the appellant Pankaj with Chhotu at about 11 or 10.30
A.M. on the fateful day and P.W.2 came out to say the rest of the
story of appellant Birendra parking his scooter near the his boring
and the appellant Pankaj bringing Chhotu from school whereafter
all three of them had gone away towards village Maharathpur will
at least complete the link in the chain of the appellant being seen
108
last in company of Chhotu because otherwise there are sufficient
evidence to show in form of P.Ws. 3, 4, 5 and 6, the four family
members that the search was on from 12.30 P.M. onwards for
Chhotu as soon as the two sisters P.Ws. 5 and 6 had returned home
and had informed of Chhotu already leaving the school an hour
earlier. In that view of the matter, when this important
circumstance of extra judicial confession leading to recovery of
the dead body of Chhotu at the instance of the appellant Birendra
was specifically put to him and he had yet remained silent without
offering any explanation, he cannot be allowed to at least come
out of the rigors of theory of last seen.
104. Reference in this connection may be usefully made
to the judgment of the Apex Court in the case of Ram Naresh &
ors. v. State of Chhattisgarh, reported in 2012 Cr.L.J.1898,
wherein it has been held as follows:
"It is a settled principle of law that the obligation to put
material evidence to the accused under section 313,
Cr.P.C. is upon the Court. One of the main objects of
recording of a statement under this provision of the
Cr.P.C. is to give an opportunity to the accused to explain
the circumstances appearing against him as well as to put
forward his defence, if the accused so desires. But once
he does not avail this opportunity, then consequences in
law must follows."
109
105. Before concluding on this aspect it would be
essential to take into account one more limb of the defence case,
namely absence of the victim boy in the school and presence of
PW2 in another school. Both Mr. Singh learned senior counsel and
Mr. Mukherjee appearing for appellant Pankaj and Birendra
respectively have submitted PW2 being a student of Bharat Sewak
Samaj School, Haripur was present in the school and thus his
entire story of being present at Boring and witnessing the entire
occurrence of the two appellants taking away the victim boy on
scooter is itself falsified. In this context reliance has been placed
on the evidence of DW1 Laxman Paswan and DW2 Krishna
Kumar Singh, the incharge headmaster's of two schools.
106. This Court on perusal of evidence of DW2 would
find that he had joined the school only on 26.06.2003 and thus he
was personally not aware of presence of PW2 in school on
12.3.1994 specially when he could not even divulge the name of
the class teacher who had taken attendance on 12.3.1994. The
authenticity of attendance register produced by him which could
not be exhibited in evidence in absence of maker of document
infact also became doubtful because there were overwriting
against the name of PW2 and two others bearing Roll number 73,
74, 75. Thus the evidence of DW2 does not give credence to the
110
defence story more so when suggestion was given to PW2 in
paragraph no. 20 in his cross examination that he was actually a
student of co-operative college Begusarai even when he had
explained in paragraph no. 9 that through in 1994 he was a student
of Class-VIII in Haripur High School but he had not been
attending the school since two to three days earlier from the date
of occurrence. Thus this part of defence case therefore must fail
due to inherent contradiction in the defence story.
107. Similarly the evidence of DW1 Laxman Paswan the
incharge headmaster of Primary School, Lagauri where the victim
boy, PW5 and PW6 were studying who had joined the school in
2004 is of no avail much less to show that the victim boy was
absence from the school on 12.3.1994 specially when the maker of
the document i.e. attendance register namely Arvind Jha was not
examined by defence. Infact from his evidence it is also
established that any student coming late to the school was not
marked present which would infact fit in with the prosecution case
became PW5 and PW6 the two sisters of the victim boy had stated
that they had reached school late on the fateful day.
108. In view of the threadbare discussion, this court will
have no hesitation in holding that defence version is too weak to
inspire any confidence specially when the prosecution to the best
111
of ability under the circumstances of last seen theory as discussed
above has successfully established its case. The appellants thus are
held guilty for committing offence under Section 302/34, 364 and
201/34 I.P.C.
109. That would bring this Court to the last question
with regard to death sentence for which a reference has been made
by the court below. Having regard to the evidence on record this
Court would not find the present case to be rate of rarest case for
which the test has already been laid down by the Apex Court in
well known case of Bachan singh v. State of Punjab, reported in
AIR 1980 SC 898, wherein it was held that:
"Before giving death sentence Court should not confine
its consideration principally or merely to the
circumstances connected with the particular crime but
must also give due consideration to the circumstances of
the criminal."
110. The same principle has been followed by the Apex
Court in the case of Dharmendrasinh @ Mansinh Ratansinh v.
State of Gujarat, reported in AIR 2002 SC 1937, wherein the death
sentence was commuted to life sentence on the ground that the
accused had no previous record and the chances of repetition of
such criminal acts at his hands making the society further
vulnerable are not apparent. Yet again the Apex Court in the case
of Panchhi and ors. v. State of U.P., reported in AIR 1998 SC
112
2726, had held that "Brutality of the manner in which a murder
was perpetrated may be a ground but not the sole criterion for
judging whether the case is one of the "rarest of rate cases". In the
case of Haru Ghosh v. State of West Bengal, reported in AIR 2009
SC (Supp) 2530, the Apex Court had commuted the death
sentence to life imprisonment taking into consideration the
following factor:
"Firstly, that there was no pre-meditation in the act of the
accused. This was at the spur of the moment as accused
did not come armed with any weapon. Secondly it is
unknown under what circumstances accused entered the
house of deceased and what prompted him to assault the
boy. Thirdly, the cruel manner in which the murder was
committed cannot be the guiding factor in favour of death
sentence. Fourthly the accused himself has two minor
children."
111. In view of the test laid down by the Apex Court
there will be no difficulty that the appellants, though have
committed a heinous crime of kidnapping and killing brutally, a
minor boy of 5½ years old who was well known to them and with
whose family they had been on visiting terms but then taking into
account that there is nothing on record to show that the two
appellants are veteran criminals, they having no criminal
antecedent and keeping in view that they on the date of occurrence
in the year 1994, were very young would answer the reference in
113
negative and their death sentence is accordingly commuted to life
imprisonment.
112. In view of above, while the death reference is
rejected, the two criminal appeals succeed to the extent of
commutation of death sentence to life imprisonment of both the
appellants, namely, Pankaj Kumar Singh and Birendra Kumar
Yadav, who in view of this judgment would undergo Rigorous
Imprisonment for life. Subject to the aforementioned modification
in the sentence, the criminal appeals fail and they are accordingly
dismissed.
(Aditya Kumar Trivedi,J.) (Mihir Kumar Jha, J)
Patna High Court
Dated the 16th May 2014
N.A.F.R./Surendra