Jharkhand High Court
Road vs Che Stateofibarkhend on 10 March, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Criminal Appeal (DB) No.771 of 2012 With Criminal Appeal (DB) Ne. 773 af 2012 GT eppoeth 8 soya ad oo . dated a G22022 end the order af sentence Pby a sistons Suge-F Mazaribue ty Sessions fn Criminal Appeal (DB) No. 771 af 2012: Mukesh Paswan, so Sri Rai Balabh Paswan, RYo Mauza-IFFCO Gali, Ranehi Road, P.S.~Rarmgarh, Distt-Ramgarh o» Appellant Versus Che StateofIbarkhend Respondent AND tn Criminal Appeal (DB) Ne. 773 of 2012: Kanesh Kumar Chobey @ Chitput, s/o Sri Ram Chobey,. Rlo Manza-IFECO Gall, Ranchi Road, RS. Ramgarh, Dist.-Ramearh Appellant Versus The State of Ibarkhand bees Respondent (Heard throngh VC on O4® Mare ab, DUG} HON BLE MR. JUSTICE : HREE CHANDRASHERHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA For the Appellant(s} > Mrs, Rasheni kumar, Advocate iim Criminal Appeal (DE) Neo 37] of 2012] Mr. Arwind Kumar, Advocate [in Criminal Appeal (DB) No. 794 of 2012) Por the Informant > Mr me Chandra, Advacate For the State > Mrs. Prova Sreshtha, Spl PP fixe bath cases} JUDGMENT
PUALY on 04/03/2023 | Pronounced on 16/03/9021 Bex Shree Chandrashekhar J Kamiesh Kumar Chobey @ Chitput, Mukesh Paswan and Gautam Giri were put on trial on the charge of kidnapping Bhawesh Kumar Mishra to compel his guardian to pay ransom. The accused were further charge 2, q under sections 302/34 and 201/34 of Indian Penal Code for committing murder and causing disappearance of dead body of Bhawesh Kumar Mishra, In the muddle of trial, Gautam Giri took a plea of juvenility PARAS Re & Criningl Appeal (DH Be. PF gf BR With Crisssissad & goest (OS) Ne, 79S of Gays and by an order dated 11.06.2008 passed in Criminal Revision No. 37 of 2005 trial of Gautam Oi% WaS Separated and sent to Juvenile Justice Board ~ by that time the prosecution had already examined six witnesses, The learned Additional Ses ssions Judge-V, Nazaribag convicted and sentenced Kamlesh Kuma « Chobey @ Chitput and Mukesh Paswan to RI tor life both under sections 302/34 and 3644/34 of Indian Penal Code and Rb for two years under sect; ion 201/34 of Indian Penal Code ~ all the SeMLENCES Were io run concurren thy,
2. The convicts are in appeal under section 374(2) of Cade of Criminal Procedure
3. in the afternoon of 15,09, "004, Bhawesh Kumar Mishra left home for atiending classes at Rajesh Tuition Centre, Ranehi Road but did aot come back by the evening -- normally he would. return home by 03:30 PM. His uncle lo iged a missing: report with the police: which WAS emered in the station diary and His fardbevan was recorded: by PN, Ram, oMicer-in-charge of Ramgarh PS at about 08:30 PM the same evening. The informant has stated that while he was busy searching his nephew a call came at OFS PM asking whether his brother Narendra Mishra was at home. The caller said that Bhawesh: Kumar Mishra was Kidnapped and would be released on payment of rupees five lacs, but w hen he asked about his ilent tity the caller disconnected the @ phone. On the basis of statement of Upendra Mishra, Ramgarh PS Case No, 322 of 2004 was registered under sections 364 and 364A of Indian Penal Code against unknown. Next day, the villagers found a dead body in Nala (drain) inside the forest near IFFCO Guesthouse and then Naresh Mahto, Mahaveer Mahto and Raghunandan Mahto gave information that on 15.09.2004 while ret naming home from daty they had seen two-three boys talk ng to Bhawesh Kumar Mishra near TPPCO factory. Kamlesh Kumar C hobey and Gautam Girl were arrested son thereafter and they suffered disclosure statements befare the police. Bhaskar Dutta, Pradeep Kumar Singh, Mahaveer Mahto and Raghunandan Mahto were present when the dead body of Bhawesh Kumar Mishra was recovered, and the bloodstained Khukhri, wooden log and earth were also seized in their presence on disclosure of Kamlesh Kumar Chobey and Gautam Gin, From the house of Kamlesh Kumar Chobey and Gautam Giri Lad usisead Appeaf LOB; Ne, PFE af BOL2 With minal Appeal COR} Ne. 7F3 of 2022 bloadstained clothes were seized and the seized articles were sent for chemical examination. In the FSL repart no stain of blood was found on the clothes of Kamiesh Kumar Chobey contained in packet-E and packet-P, havever, bloodstains were found on soll, wooden log and a shirt seized fram the house of Gautam Girt, After their arrest, Ramlesh Kumar Chobey and Gautam Girl were brought to telephone booth from where a call was made in the evening of 15.09.2004 at the house of the informant. Sumit Chatterjee who was an employee at Surbhi S.T.D identitied Kamilesh Kamar Chobey as the person who made a call at telephone no, 223374 around O7.00 PM on 15.09.2004. He took printout of the call log and gave to the Superintendent of Police who himself was monitoring the whole operation. Later, Sumit Chatterjee in } presence oti Superintendent of % Polies identified the accused In Test identification Pa arade which was held inside the jail. Dr Bined Narayan who conducted the postmortem examination on 16.09.2004 aver the dead body of Bhawesh Kumar Mishra oy fryne +.
kas found one abrasion of the sure of 1/2" x 1/2"
over the for rebead and one inoised wound of the size of 3° x 2" which slashed the trachea and front bleod vessels of Bhawesh Kumar Mishra. According to the docter the injuries were caused by sharp cutting instrument, the death was caused duc to hemorrhage and shock and time elapsed since death was 06 to 36 hours, With a bit delay, the statements of Sumit Chatterjee, Raghunandan Mahta, Mahaveer Mahts and Naresh Mahto were recorded under section 164 of Cade of Criminal Procedure. A charge-sheet was filed against Karmlesh Kamar Chobey and Gautam CHri on 26.11.2004. Mukesh Paswan who had absconded was arrested on 18.12.2004 and against him a supplementary charge-sheet was filed. A common charge under sections 3644/34, 302/34 A and 201/34 of Indian Penal Cade was framed against them vide order dated 13.09.2005 and during the trial the prosecution has examined 14 witnesses to prove charges against the accused ~ the informant is PW1s. 4, On identification of the appellanis as the persons who had kidnapped Bhawesh Kamar Mishra for ransom and murdered him, the learned trial Judge has held as under:
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5. There is no witness who sew the accused kidnapping and committing murder of Bhawesh Kumar Mishra, The prosecution has produced witnesses to Prove circumstances unplicating the appellants in the crime. We, therefore, need to keep in mind that an inference of gullk can be justified only when all the circumstances are found incampatible with innocence of the accused. The present day law on circumstantial evidence which originated from "Reg vo Hodge is that before convicting a person on the basis of circumstantial evidence the Court must be satisfied not onky that the evidence is consistent with 1 the guilt of the person but is alse Imeonsistent with any rational inference pointing ar g to innocence of the accused. The Courts in India seem to adopt the tests propounded in Hodge' case un evaluating the circ cumstantial evidence against an accused: In one of ite earliest cases, as far back as LOS2.in "Hanumant Govind Nergundkear y.
State of Madhye Pradesh" the Hon'ble St upreme Court has laid down that there mast be a chain of evidence 4G complete as not to leave any reasanable ground for a conclusion consistent with the innocen ce of the accused and it fuast be such as te show that within all human orokettie the act must have been dane by the accused, &, Three employees of a faci ory awned by uncle of the victim boy a have tendered evidence on last seen together. PWS, Naresh Mahto has stated yea hat he was working in the factory of PC. Jha who was uncle of Bhawesh Kumar Mishra. On 15.09.2004, he was going to market at around O3:00-03:15 PM to fetch jute ropes when saw Bhawesh Kamar Mishra taking to unknown boys. Afler the duty was over, he left for hame with Mahaveer Mahto and Raghunandan Mahto around 08:15 PM. This time als he saw Bhawesh Kumar Mishra alongwith two unknown boys, they were talking. In the cross-ewan ination, he has stated that the boys were trying te seize the bioyele from Bhawesh Kumar Mishra but he did not suaneet any 2 foul play, Next day mo rning, he came to know in the factory that Bhawesh ¥ LR j i36 6 Coimingt Appes! (BB) Ne. TIL ef 8028 With Lvisdtisat Append (Oi) No. TIS of 2OVS Kumar Mishra was missing since last evening and then he narrated the incident of previous evening to the father of Bhawesh Kumar Mishra. He has identified Kamlesh Kumar Chobey and Gautam Girl in the dock, PW4, Mahaveer Mahto was another ernployee under the uncle of Bhawesh Kumar Mishra who has depased in the Court that on the day of occurrence at about O5-00-05-15 PM he was returning home after the duty - Naresh Mahio and Raghunandan Mahto were with him. On the way, he met Bhawesh Kumar Mishra who asked him whether he was returning home. He has further stated that the victim boy was dragged to the nearby bushes by three boys and next moming he came to know that Bhawesh Kumar Mishra was missing, In his cross-exnamination, he has stated that Bhawesh Kumar Mishra and the accused were talking near IF POC a gate, fifteen fet SWAY, there are other colonies all around IPRCO. gate and Ris a thoroughfare. To a suggestion that under influence of the 4 factory owner he has implicated the accused, he did not budge and again stated that he saw two boy. s talking to the vietim boy near IFFCO gate and at that time the accused were holding his bieycle so he thought. that they were fiends. In a. lengthy cross-examination, mostly suggestion only ~ but with reference to his statement under section 16] CrPC this witness has admitted that he stated before the police that around O$:00-05:15 PM in the evening of 1$.09.2004 he had seen Bhawesh Kumar Mishra talking to two unknown boys. PW5, Raghunandan Mahto was also an employee under mncle of the victim. On x 18.09.2004, on his way back home he saw Chohey Ji (refers to Kamlesh Kumar Chobey}, Giri Ji (refers to Gautam Giri) and one unknown boy talking te Bhawesh Kumar Mishra. He has stated that the accused led the ealics to different places where Avon bicycle, knife and bloodstained clothes were concealed. He has identified the accused in the dock and said that he does not know name of the third boy ~ the unknown boy was Mukesh Paswan and his identification by PWS was objected by the defence. His cross-examination reveals that at the time of seizures he was preserit there though his signature was not taken by the investigating officer on seizures Thay oS, ood The presence of witnesses PW3, PW4 and PWS near IPFCO gate on 18.09.2004 was challenged on the ground that they were charee or ee vad Criminal Apnesl (RE) No. FPL of 2G13 With Crhpingl Sppwal UN No. TIS af 2012 planted witnesses
8. The evidence of PW3, PWd and PWS that they saw Bhawesh Ktonar Mishra in the fering of 18.09.2004 talki ing to unknown boys near IFFCO gate is the main plank of the prosecution {6 prove charges against ine appellants. The statements of these witnesses were recorded by the investigating officer on 16.09.2004 and the Magistrate recorded their Atatemients under section 164 Cr BC on O7.10.0004. In 7 Mahavir Sineh vy State af MP the Hon'ble Supreme Court has observed th: t evidence of a chance witness is acceptable in India yet the chance witness has to reasonably expiain his presence at that particular moment In their testimony, the prosecution witnesses have. offered & reasonable and acceptadle explanation and on the ground that. some of them were employees under uncle of the victim their ev idence ¢ cannot be. doubted and cisearded. The seizures were made in daytime and the witnesses have seen Bhawesh Kumar Mishra in the company of unknown bays who. were later identified by them in the dock. Their evidence IS not consistent on vomplciy of three accused, as PW3 has stated that he saw byo boys ty ig the vietim and PWd would admit in the cross-examination that he said about two boys to the police whereas PWS has invol ved three boys. As regards Intention of the accused to be inferred from spoken words or thelr act these witnesses. do not seem to corroborate each other. But the discrepancies in their testimony do not render then? unreliable WINES ES, rather excluding possibility of Involvement of a third boy in the occurrence their evidence is cogent, consistent and corroborates each other. Even assuming that ary indication on ill motive of the acoused cannot be inferred trom their evidence, nonetheless, the prosecution kas proved that in the evening of 15.09.2004 the victim was with two of them and thereafter he was not seen alive, PW, cousin brother of the victim js another witness who has claimed in the Court that the v Hlagers informed him that around 02:30 PM they had seen Bhawesh Kumar Mishra in the company of three unknown Poy bat this part of his evidence appears fo he improvernent by him te meet the prosecution case and we w 'ould exclude from consideration fis evidence on last seen t logether.
ME, & Criminal Sygeal BY Ne. FFE af ROIS With Ushuina Agus (RB) Na. FB of POLST B A doubt on conduct of these witnesses may anise because they seem to suggest that they saw three unknown boys dragging Bhawesh Kurnar Mishra towards bushes. They were acquainted with Bhawesh Kumar Mishra but did not stop and intervene rather proceeded for hame and the nest day only when dead body of Bhawesh Kumar Mishra was found they disclosed the previous evening incident, But, as we have stated, ones a part of their evidence is excluded and we take a yiew that there was some exaggeration in thelr testimony the rest part of their evidence is reliable Moreover, there is no sets rule of natural reactions and there may not be similarity in behaviour of two persons. In 'Rane Partup v. State of Naryana™ the Hon'ble Supreme Court has observed that tp discard the evidence ofa witness on the ground that he did nat react in 8 particular manner is to appreciate the evidence im a wholly unrealistic and unimaginative way. Every omission or inconsistency in the evidence of a witness or a witness falling to state something before the pelice which do not affect substanc se of his testimony would not make his evidence susceptible, It is alsa. well discussed In various judgments that exaggeration per se da not brittle the evidence, In a lengthy cross-examination by the defence these witnesses have remained fir to their grounds and their presence al a particular place and tine was established. The witnesses had no malice towards the accused and TO Suggestion was put to them in their cross-examination for false unplication of the accused. All the material prosecution witnesses were examined by the Investigating officer immediat ely affer the dead body of Shawesh Kumar Mishra was recovered and there was no possibility of fabrication of evidence. In the circumstances, it would be a highly unreasonable approach to think that a large number of persons coming from ww a different places were planted by the police to falsely implicate the accused in the case, The father and uncle of Bhawesh Kumar Mishra had neo previous animosity with the accused and the investigatme officer also had no animus towards the accused. Whether sufficient materials were produced during the trial i prove the accused guilty is yet to be examined by us, but, there is no doubt on the prosecution story that Bhawesh Kumar Mishra was abducted far fansam.
He Q Crave Appead (GEG Mo. FPP of BQ With Crininal Sgpeal GSS) No. 7S of ZOQVR rie 1G, Generally the circumstance of lasi-scen-together is considered highly incriminating anda clinching evidence provided the cireurristance is proved by cogent evidence and possiblity of a casual or aceldental meeting .
ofthe accused with the deceased is ruled out. In "Nevoreerthadrishvan 1 State by Inspector of Police the Hon'ble Supreme Court has observed that the law presumes that if is the person who was last seen with the deceased would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. There are well measured and tested narms to examine efficacy and applicability ef the last seen story. A man fe facing the charge of murder may be a friend, personal doctor, his lawyer, co-worker or co-villager of thé victim and by purely casual or accidental meting both were seen together, but that by itself may not be sufficient to draw an inference on complicity of the ace sed. in * Bodine af alias Bodha wd Ors. v State af f & K' the Hon! ble Supreme Cot art applic ed proximity oe feat' to hold that where the time gap between the point of time: 'when th yin was last seen alive with the accused and when he was found dead was 80 small that chances of any ather person other than the accused committing the crime becomes remote the last seer theory became credible. This circumstance would turn ins sini if there is evidence, direct or oirceamstantial, establishing intention of the aceused to commit the crime. Sail, the accused. cannot be convicted unless s the prosecution establishes that the victim was last seen alive with the accused and there are other independent incriminating circumstances available en record which the accused has failed to explain satisfactorily and all taken together complete the chain of circumstances to draw a conclusive inference that the accused is eundty, Ui, ln "Aarhatva Lal v State of Rajasthan' the Hon'ble Supreme Court has observed as under:
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fg Criuiaat Appeal GB} Ne, PYT af 8642 With Criminal Appeal (OB Ne. TF3 of BUN iy In the present case, the prosecution story of last seen together is a imeriminating circumstance because of all the prosecution witnesses, besides PW3, PW and PWS, atleast nwo of them have tendered direct evidence on complicity of avo accused,
13. PW has deposed in the Court that in the morning he came to know that a boy was murdered, he was son of Narendra Mishra. He came to bis house and by that time the dead body was found near [PPCO Guesthouse. There the police was questioning two boys and on their pointing bloodstained Khukri was seized, The boys led the police to a place a same distance where Avon bicycle and school bag of the victim were found, The police then brought both the accused to their house. One pant and green colour half shirt were recovered from the courtyard af house of one accused and one cream coloured check shirt and dark pant concealed in the bathroom of the other accused were also seized, He hus further stated that the seizure-memas were prepared on the spot in his presence anid he put his signature after reading the same. He has identified Kamlesh Kumar Chobey and Gautam Giri as the boys at whose instance seizures were made by the police. In the cross-examination he has stated that the seizures were made in the forest west of Ranchi Road within a radius af five hundred x meters to one kilometer. The victim was a resident of Marar Industrial Area and a lares crowd of about ovo hundred people he ad ge hered there, PW2 visited the house of Narendra Mishra.on hearing hulla. 'i is another scizure Witness who has affirmed in the Court that the seizures were made by the police in bis presence on the pointing of the accused. On the day His evidence was taken in the Court, Kamlesh Kumar Chobey, Gaulam Girl and Mukesh Paswan were present in the dock and he has informed the Court that Samlesh Kumar Chobey and Gautam Olin were the boys who were pul uncer Huthkari (handout) by the police and at their instance the incriminating articles were recovered, is, in the cross-examination of PW and PW 2, the defence has sheited that they had no previgus acquaintances with Mishra 3 (refers to Sather of the Victim): they were residing at Ramgarh about three Slometers away from the place of occurrence: several employees were working at the factory; there were eclon! ies near IPRCO factory, and: the road near w hich i] Criminal Appesd (DAY Ro. PF) of De With Cstmingd A ppaat (Da) Na. PIS xe BULD tne dead body, bloodstained waoden Ing and Khukhri were recovered was a thorwughfare. In the background of the aforesaid facts, Mr Arwind Kumar, the learned counsel has contended that it was highly improbable that kidnapping and murder of Bhawesh Kumar Mishra would go unnoticed.
iS, since the evening of 15.00.2004 the boy was missing and his dead body was found early next morning in the forest. An inquest report was prepared at 10:00 AM in presence of Upendra Mishra, the informant, and Praveen Kumar Jha. Kamlesh Kumar Chobey and Gautam (iri were apprehended by the police and on their painting bloadstained wooden log was recovered af 1is4S AM, bloodstained Khukhri at 12:50 PM, Avon bieyele at O30 PM, and school bag at 02:10 PM. The aforesaid recoveries were mace fromthe places in close inity to IFFCO factory. The house of vad Kamlesh Kumar Chobey and Gaut tam Girl was not fer olf and recoverie from their house were made the same day between 02:30. to 02 50. PM. The evidence of fisther and uncle of the. deceased does not appear ta inte 'd and the other prosecution witnesses have filly supported the prosecution case. The father of Bhawesh Kumar Mishra was examined as PWI1. He has stated in the Court that on 15.09.2004 he had gone to Ranchi with his brother-in-law.
Around 05:30 PM in the evening he came back home but by y that fe his Rajesh Talons Centre and made enquiries about" hi vs son, and at the residence of his brother-in-law also did not: fia his son. He made enquiries from other students who were t taking tution with his son but he could not eg get a clue about his son, and at about 07:00-07:15 PM a ransam eall came which was attended by his younger brother Upendra Mishra. A demand of rupees five laus was made and when Upendra Mishra made enquiry about udentty of the caller the call was disconnected. PW14, the informant has slated that around 03:00 PM his nephew lefi home for coaching but did nat come back home. On that day his brother and P.C. Jha had gane to Ranchi tor some official werk and by the time his brother came back home Bhawesh Kumar Mishra was not back home. The informant has narrated the meident of 15/16.09.2004 and his evidence in the Court is irc time with the prosecution story, In his cross-examination he has stated that he was residing with his breather and on 16.06.2004 he had gone to the house af 4 7 i oh Coimingd Agpgnal PHD Ro, PPE af BOLD With SUeisinad Appeal GR) No. TPS of FQIU Kamlesh kumar Chobey with the police where the accused disclosed involvement of Gautam Giri and Mukesh Paswan and on pointing of Karmlesh Kumar Chobey, Aven bieycle and school bag of Bhawesh Kumar MUshra were recovered. The evidence of PW11 and PW14 does net indicate aiy ellort on thelr part to fabricate evidence against the accused. Their testimony in the Court, plain and simple, indicates that when the witnesses disclosed that Bhawesh Kumar Mishra was seen in the company of 2-3 boys the police apprehended the accused, one was Kamlesh Kumar Chobey. 16, PW, the investigating officer received a telephonic message that the son of Narendra Mishra, a resident of industrial arsa, Ramgarh, was mussing. He entered the information im station diary vide Entry No. 418 at O815 PM and along with Kusum Pathak, Ram Lakhan Singh and Krishna Rai proceeded trom the police station for enquiry ~ - the superior police officers were alse informed. He visited thed house of Upendra Mishra and the Jar bey an of Upendra Mishra was 'recarde al. in course of the investigation enquiries from the tutors and other students who were enrolled at Rajesh Tuition Centre were made but no worthwhile information about Bhawesh Kumar Mishra could be obtained. The father of the victim informed him that Ramesh Dom, Vikram Dom and Dharmendra Dom were raising objection in respect of a land, however, in course of the investi gat jon he did no find their Involvement in the occurrence. He has.stated that about 09:00 AM next momung an information was weotived that.a dead body was lying near IPR Guesthouse and around 00:30 AM he reached there, a large crowd nad gathered there. An information was sent to the family of the victim and they identified the dead body. He has inspected the place of occurrence and recorded statement of the witnesses. Naresh Kumar Mahto mformed him that he bad seen two boys with Bhawesh Kumar Mishra the previous evening and upon this information Kamlesh Kumar Chobey was arrested at PbOG AM and Gautam Girt was arrested at around 12:00 noon. He has further stated that the accused confessed their involvement in the crime and they pointed the places where the incriminating articles were concealed by them. From the evidence of the investigating officer it appears that the dead body was found ina Nala (drain) adjacent to Guestheause in the forest. He has admitted that on information of the local people the dead body was tnd Crkukwl Appel i De Re. FFL of SVIST With Urhuinal Agel GB} Mea PFS af SOIR recovered, but no Test Identification Parade was conducted by him. He has denied that confessional statement of the accused was extracted by force. He did not find any mark of violence at the place of occurrence and says that marks of identification were put on the selzed articles at the police station, The seized articles were deposited in Adalkhuna, entries were made in Afefkhara and the articles were produced in the Court of Chief Judicial Magistrate In sealed cover. He has further stated thai there is a reference im the case diary abet the document collected from S.T.D, booth but the printout was trot produced in the Court.
iy, The other prosecution witnesses have also tendered useful evidence. PW8 is the tutor He has deposed in the Court that on 13.99.2004 he took burton. «elt tl O44 PM and: thereafter the batch was released - Bhawesh Kumar } Mishra was one af the students. The same evening the guardian of Bhawesh Kumar Mishra came to him and informed that his son was kidnapped. PW9 is cousin brother of the: victim, Gn 13,09, 2004 around 06:00 PM he got a call from his maternal uncle ( (U pendra Mishra} enduring about his son. Another call came at 07:50 PM te evening and his maternal uncle told him that Bhawesh Kumar Mishra was kidnapped and the abductor was demanding ransom of rupees five lacs. Cin 16,09, 2004. the dead body of Bhawesh Kumar Mishra was recovered from a Nalo (drain) ss between the factory and Guesthouse ~ according to him information was given by the villagers. He has stated that the police went to pert the house of KRamlesh Kumar Chobey and when made enquiries fram him he confessed that with the help of Gautam Giri and Mukesh Paswan he committed murder of Bhawesh Kumar Mishra with khukhri. In his presence bloodstained clothes were recovered from the house of Kamlesh Kumar Chobey and on his pointing khukhri was also recovered. This witness has farther stated that he was present there when Kamlesh Kumar Chebey and Gautam Ciri made disclosures that they had planned kidnapping and murder af Bhawesh Kumar Mishra.
18. Mr. Arvind Kumar, the learned counsel has contended that there are serious discrepancies in the time of arrest, recording of confessional statements and recovery of incriminating articles. The learned counsel would submit that Kamlesh Kumar Chobey was arrested from his house al ea i4 Crbainal Agyeal (eB Ne. FFI of FOITS Wh Crishsd Apoval GB: Ba, PYS af BOL {P00 AM on 16.09.2004 and soon thereafier Gautam Giri was also nabbed and their confessional staternents were recorded but before thet flrat recovery was already made at 10:45 AM the same day and while so the recuveries cannct be said to be pursuant to their disclosure statement. It was further contended thet the recoveries were not made on disclosure of ecause in the confessional rst Karmlesh Kumar Chabey and Gautam Ohiri staternernt the accused do not say that they can show the places where wooden log, khukhri, schoo! bag, Avon bioyele ete. were concealed and get those articles recovered. Mr. Arwind Kumar, the learned counsel has lastly comended that if the recovery evidence is excluded from consideration the last seen slory is mot sufficient to conviet Kamlesh Kumar Chobey fir Kidnapping and miurder, Py, Section 27 of the Evidence Act carves: outa well defined exceptum to the barn unposed by seetians 25 and 26. In respect of the ~ miformation received from a person accused of any offence in the custody of 3 pul Hoe officer which relates distinctly to discovery of a fact, section 27 provides a protective umbrella permitting the prosecution to prove so much x yt of the information which distinctly relates to discovery of a fact. Section 27 a ofthe Evidence Act is hased on the dactrine of confirmation that if any fac is Gseavered in a search made on the streneth of any information obtained from an accused such discovery isa guarantee that the information su upplied by the prisoners was true.
20, In "Surest Chandra Band v State of Bihar'? the Hon'ble Supreme Court hes observed as under:
a al. Section 27 does not Spe ak about a confession to be reduced in ty > ¢ Writing and as held im 'Badkray" i is sufficient if the investigating officer depoases in the Court the contents af the confessional statement made by the &. 2883 Beep (U7 SOC 86 1s Criminal Supeal UR Ne PR of BOLT Wb SCoBpHIT Appent CUR) No. T23 of GQUZ accused. In "Suresi Chandra Bahri' the prosecution case was that the recoveries were made from the place shown by the accused. The Hon'ble Supreme Court has held that it is immaterial whether confessional statement of the accused was recorded or not and the recoveries would come within the sweep of section 27 of the Evidence Act. In the present case, the discrepancies in the prosecution case are result of imexperience and negligence of the investigating officer. Once the events of 16.09.2004 are visualized without initial doubt keeping in mind that every action of the mvestigating officer In cotrse of the investigation carmot be measured with mathematical precision, in our opinion, if was not possible for the mivestigating officer and family of Bhawesh Kumar Mishra to get the incriminating articles planted and witiesses made' re: ady to depose against the appellants and, that too, within few hours. As regards arguments on custody of the aecused, ne doubt the plain language of section 27 of the Eviderice Act which contains the « expression 'in the custody of a police officer' gives an impression that éoifessional statement af the accused can be recorded after he is taken inte ce ustody, but at the same time we would mdicate that the dictionary m eaning of the word 'custody' is wide enough to nie a variety of circumstances, In Interpreting a statute the most preferred choice of the Courts is literal construction but the difficulties in ileral construction of different provisions of. & statute prompted the Courts io adopt different interpretations of statutes. Ris widely recognized that intention of the legislature, object and purpose for which a provision was incorporated and whether literal construction leads to patent absurdity are ept in mind and efforts of the Courts have always been to give effect to provisions of the statutes. In "Moke. Arif x State (NCT ef Delhii'* the Hon'ble Supreme Court has observed that for the accused to be in cus stody of the investigating agency he need net be formally arrested and it js enough if nis movernents were under the control of the investigating agency. If is inte that 4 simple touch by the police constitutes arrest and, moreover, in course of the investigation the memorandum of arrest, seizure-me mo, confessional statement es, may not be prepared In a seriatim. If these events from part of the same transaction nothing would really turn on which document was G PMI pt Oey :
3 i281 PFA SOC BFi 16 Criminal Appeat (MN No. PIR of BOIS Wh Criminal Ayqaadt UNS No. FS of ZAI a?
erepared first. In "Fikram: Singh v State of Punjab' the Hon'ble Supreme Court has held that there is no need of a formal arrest for the applicability of section 27, Se The confessional siatement of Kamlesh Kumar Chobey was recorded an 16.09.2004. The witnesses have deposed tn the Court that in presence of Kamiesh Kumar Chobey and Gautam Gin and on their pointing crime weapon and other incriminating materials were recovered. The investigating officer has stated in the Court that he recorded confessional statements of Ramlesh Kumar Chebey and Gautam Girl on 16.09.2004 and in their confessional statement the accused said that they had concealed Khukri, weoden log, school bag, clothes and bicycle of Gautam Gir: and they took him to the places where these articles were concealed. The bloadstained Khukri was found in the forest about 30 feet from the place of ~ occurrence, Avon bicycle was found in the forest west of khark per nala and a school bag was found about 300 feet north-west from th ep aocurrence. The evidence of seizure witnesses does not indi cate that these articles were concealed beneath the + ground, however, we see no feason ne discard this piece of evidence. Kamiesh Kumar Chebey never complained about his dl treatment at the hands of the police. At no stage before conclusion of the trial he has retracted his. confessional, staidnert and no te material is avallable on record te iofer that his confessional statement was not voluntary. In "State of HP v Jeet Singi"" the Hon'ble Supreme Court has observed that recovery of the articles made from a place which is "open or accessible' to others does not make the statement of the accused inadmissible under section 2? of the Evidence Act.
23, In "Jeer Singh', the Hon'ble Supreme Court has abserved as unger:
Se ye Seca yeen oh eth -gacbeper ds uf ine Peidence dcr uduchk x ?
?.
ry € statement ay ike accused me adn $3) sible Pre PUDVERY fa others rherpninaliy REL essibie a 10 rae i ME! Ca L if is cancedled hen mee cih cry & Yt Ie es af Afader pr a public i? Criminal Sppext (DE) Rey VFR of BO2S With Quissinal Appesl De} Ne. PFS af BOIS would reeunn aul of the visibility of al thers in marimar circumstances, Und! such articte is disinterred, its hidden state would remain ahampered. The person Ww tho Rid Uo alane knees where Hip antl he disclases that fact to cory Other Person. Hence fe crucial question is not Ww thepher the plac e wey ae spessible athers or Hor hut whether if was ordinarily visible to ofners. Pah vot, phew if is pamatertal that the concealed place 18 nocessible 16 fo ceRers ;
24. The dead body was first seen by the local people and on aformation of the factory workers K: amlesh Kumar Chobey and Gautam Giri were apprehended. The prosecution has produced truthful witnesses a and quality of their evidence is such that the plea, a technical plea, raised on the basis of time of preparation of arrest memo, seizure memo and recording of confessional statement is best ignored. The. 'prosecution has proved confessional statement of Kamile sh Kumar hobey and recovery of the articles on his pointing. Kamlesh Kumar Chobey had exclusive knowledge where the incriminating articles were concealed, Ne has failed to offer an explanation how he could know about concealing of the articles inside the forest. From the disclosure made by him, the Investigating Officer came to know that Avon bicycle and school bag of the victim were concealed in the forest and thereby discovered a new fact hitherto unknown to him. tn cur apinion, section 27 of the Evidence Act would come in aid to the prosecution and a part of the confessional statement of Kamlesh Kume Chobey is ugable and can be proved by the prosecution, 235, The offence under section 364A of Indian Penal Code which was amended to proves' death penalty requires the prosecution to prove that () the accused kidnapped or abducted the persen (1) the abductee was kept ander detention after such kidnapping or abduction and (10) the kidnapping or abduction was for ransom.
20. The prosecution witnesses have seen Bhawesh Kumar Mishra in the company of 2-3 boys in the afternoon of 13.09.2004. For making a ransom call, two accused one of whom was Kamlesh Kumar Chobey had gone to Surbhi SPD where Sumit Chatterjee attended them. He was « examined as PWIO. From his cross-examination, we gather that his presence at the telephone booth in the evening of 18.09.2004 was challenged by the defence. He has provided printout of the call record and admitted in the cross-examination that about 70-80 calls were made on that } & Usimiaat Sapead (533 Ne. YFE of SOLE With Lvissisa Appeat (OR Ne, PFS af BOIS at which calls were made.
o day but he cannot give any detail of the numbers Kamlesh Kumar Chobey was present in the dock when he identified hum as the person who had visited S.T.D booth m the evening af 15.09.2004 at about 7:0 PM and made a call Kamlesh Kumar Chobey and Gautam Giri were brought ta Surbhi STD at around 0330 on 16.09.2004 and identified one of them CKamiesh Rumar Chobey). The statement of PWG was recorded under section 164 CrPC and im the Court he would stick t his ground that Ramilesh Kumar Chobey made a call from Surbhi 8.T.D in the evening of [5.09.2004, If appears that for further verification a Test identification Parade was conducted im the jail in presence of the Superiniendent of Police. The prosecution does not rely on identification of Kamiesh Kamar Chobey in Test Identification.
; arade conducted in the ial ~ rightly so; but his identification in the Court by 'PWILO is a substantive evidence which together with other evidences would establish that he was imvolved in the occurrence. There was some delay in recording statement of PW under section 164 CrPC but before that his statement under section G1 CrPC was already recorded by the Investigating officer and his evidence in the Court is in confirmity with his previous statements. The printout of call record was not tendered in evidence bat PW11 and PW14 have deposed that a ransom call was made and others have also spoken about ransaim call. From the aforesaid evidences, it can be safely inferred that ransom call was rade by Kamlesh Kumar Chobey. This is not clear wy Bhawesh Kumar Mishra was killed In the night of 15.09.2004 before ransom was paid, but at that moment what was going inside the mind of the accused and what prompted the accused to commit murder of Bhawesh Kumar Mishra would remain closeted in their chest and no significance can be attached to this.
27, Furthermore, the scientific evidence though does not implice Kamlesh Kumar Chobey directly but a part of FSL report supports the prosecution case.
as, The relevant portions of F. S.L. Report are extracted below:
eit Peedesered der vargas?
RONTGING ES UT Pee! SIEROPUNTQN OF APTOS! aviver par marked. ae comgined some earth wiih bro pieces sata! dish brawn stains practically af tuted one rusted kbnuksré he wooden femelle. The Alade ond } wAaK! were precsured about 38 S ge } 9 Crimiant Apqeal UE: No, PPE af 2UIZ With Cimisad Appesh (DG) No. TPB of EPIR SS Sees 2.
4 gar cafonr dty chee ' # « quuRadon > <.
; ¢ :. Sy ee ea eten sed dyanterygte I, Blocef Bas » detected te gach of the exfralts as nated belay. ~ w §.
Results af the Serological kxcnimalian HOOF {He ¢ fated io Bixlogical & LExhibids) | Nature of i wiarked 1 RIM TUDE wher origin Reais i Results mae nay vA : Binal Human .
PES ' Blood > Human .
29, PWID was posted as Assistant Director at State Forensic ™~ fence Laboratory, Jharkhand. He has stated that en LL1L2004 favo samples were received but the samples could not be examined because no selentist was available at that time. He has stated that for the sake cyt 3 fonvenience he labeled the packets 'A' to 'F In packet-A which contamed soll and branch of plants blond was detected; no blead was found In packet-B which contained rusted khukhri; shirt which was labeled packet-C contained blood: black pant vide packet-D, green ThShirt vide packet-E and jeans pant vide packet-P were found without any trace of bl ood, Packet-A and packet contained human blood of group "A™ and in the cross-
yy tination PWi2 feral persons with blnod ump of the fy we * Sa Seah + ¢ , woe a 2 > fa ps 3 de an Pony.
pet ty td py nog Ce Ce pon ft wt Ce ee) ame Speco eat rn Sod a nok pe Le Soe ye Op oy a a fa was fu mS a ote "ead CR id ry ee Court, Even so, the report provides important support to the «prosecution, The recovery of clothes from his house was not challenge uy Kamlesh Kumar Chobey and no matter if bleodstains are not found on t clothes ced fromm his house vide packets "FE and F his involvement in the crime } 20 Clrismisal Sppval (BB No, 772 af BOR WEE Crivdad Apes} (OG Re. FPS wf RGIZ yoy proved. He was completely silent im his examination under section 313 CrPC and that is another circumstance, an incriminating circumstance, against him which would provide an important fink in the chain of CIPCHITISLATIO'S,
30. However, the evidence an complicity of Mukesh Paswan in hh abduction and murder of Bhawesh Kumar Mishra is net safficient for hi comviction. PW3, PW4 and PWS have deposed in the Court that in the evening of 15.09.2004 they found Bhawesh Kumar Mishra in the company of unknown boys, Ag noticed above, PW3 has stated about pvo boys but PW and PWS have said that three hoys were ertangled with Bhawesh Kumar Mishra, In his cross-examination, PW4 has admitted that to the police he did.tell about pvo boys only Ine the contessional statement, Kamilesh Kumar Chobey and Gautam Girt have datas adcut a plan te hadnap Bhave ash Kumar Mishra bot a reading of thelr statements does not mdieate that on 15.09.2004 Mukesh Pa swan was with them: Ramicsh Kumar Chobey has stated in the confessional statement that he discusse d the glan to abduct Bhawesh Kumar Mishra for ransam with Mukes! when Kamlesh 'Kumar Chobey offered a ride to Bhawesh Kumar Mishra with intention to abduct hun for ransom, but on 13.09.2004 Mukesh Paswan was niot with him. The confession of & co-ace sused- anid confession made by Mukesh Paswan himself, about three m onths: after the occurrence, are not sufficient to hold him guilty. There is no material, direct or circumstantial, tc hold Mukesh Paswan guilty, The first clue about abduction and murder of Bhawesh Kumar Mishra came from the factory workers and Kamiesh Kumar Chobey succumbed to questioning by the police and told the whale story. The recoveries of incriminating articles on his disclosure establish a definite role played by him. The prosecution witnesses have exaggerated tneir version to rope in Mukesh Paswan and that is the reagon there is some imeansistency in the evidence of PW3, PW4 and PWS, r, there is no doubt on involvement of Kamlesh Kamar Chobey in kidnapping and murder oY Shawesh Kumar Mishra.
Lad i, In the result, Criminal Appeal (DB) No. 773 of 2012 Sled by ine appellant, namely, Kamiesh Kumar Chobey @ Chitput is dismissed.
4 . oy wa AE a Venus Apne cay Na ceed af COLE Wek Criminat Appast (DEG No. YS af 2Or8 2 .
Beery, we 32, Criminal Appeal (DB) Na, 771 af 2012 agaist the arp amely, Mukesh Paswan is allawed.
33, Accordingly, the appellant, namely, Mukesh Paswen in Criminal Appeal (2B) No, 771 of 2012 who is in custody shall be released ¥ if not warited im connection to any other case Forth
34. The appellant, namely, Kamlesh Kumar Chobey G2 Chitput in & a fpagy Criminal Appeal (OB) No. 773 of 2012 shall serve the remaining sentence.
Nek gs 35, Copy of the padgment shall be sent te the Court concerned for ormation and necessary action.
38, Let the lower Court records be sent to the Court concerned forthwith, ren Say ty (Shree Ch handrashekhar, J.) Sdé (Ramaker Bhenera, Ad Teta eee eee ean gett