DEATH REFERENCE CASE No.4 OF 2007
(Reference made under Section 374 of the Code of Criminal Procedure vide
Letter No.16 of 2007 dated 13.06.2007 for confirmation of death sentence
awarded to the convicts under judgment and order dated 6/7.06.2007,
passed by 1st Additional Sessions Judge, Aurangabad in Sessions Trial No.
302 of 2006/ 76 of 2006, arising out of Barun P.S.Case No. 165 of 2005)
THE STATE OF BIHAR
Versus
1. MANOJ KUMAR SINGH
2. Yogendra Singh :------------Condemned Prisoners.
-with-
CR. APPEAL No.836 of 2007 (D.B.)
(Against the judgment and order dated 6/7.06.2007, passed by 1st
Additional Sessions Judge, Aurangabad in Sessions Trial No. 302 of 2006/
76 of 2006, arising out of Barun P.S.Case No. 165 of 2005)
YOGENDRA SINGH,
Son of Dawarika Singh,
Resident of Jharna Kala,
P.S.- Bishrampur,
Distt.- Palamu (Jharkhand) ---------------------(Appellant)
Versus
THE STATE OF BIHAR---------------------------------(Respondent)
-with-
CR. APPEAL No.887 of 2007 (D.B.)
(Against the judgment and order dated 6/7.06.2007, passed by 1st
Additional Sessions Judge, Aurangabad in Sessions Trial No. 302 of 2006/
76 of 2006, arising out of Barun P.S.Case No. 165 of 2005)
RAGHUBIR SINGH,
Son of Late Nageshwar Singh,
Resident of Village- Badem,
Police Station- Nabinagar,
District- Aurangabad------------------------(Appellant)
Versus
THE STATE OF BIHAR--------------------------(Respondent)
-with-
CR. APPEAL No.960 of 2007 (D.B.)
(Against the judgment and order dated 6/7.06.2007, passed by 1st
Additional Sessions Judge, Aurangabad in Sessions Trial No. 302 of 2006/
76 of 2006, arising out of Barun P.S.Case No. 165 of 2005)
MANOJ KUMAR SINGH,
Son of Muneshwar Singh,
Resident of Village- Karamdih,
Post Office- Pandu,
Police Station- Vishrampur,
District- Palamu (Jharkhand) --------------(Appellant)
Versus
THE STATE OF BIHAR---------Opp. Party.
2
-with-
CR. APPEAL No.1006 of 2007 (D.B.)
(Against the judgment and order dated 6/7.06.2007, passed by 1st
Additional Sessions Judge, Aurangabad in Sessions Trial No. 302 of 2006/
76 of 2006, arising out of Barun P.S.Case No. 165 of 2005)
RAJU KUMAR GUPTA,
Son of Late Shivnath Prasad,
Resident of Village- Pandu,
Police Station- Vishrampur,
District- Palamu (Jharkhand) ----------(Appellant)
Versus
THE STATE OF BIHAR---------------------(Respondent)
-with-
DEATH REFERENCE CASE No. 12 of 2008
(Reference made under Section 374 of the Code of Criminal Procedure vide
Letter No. 230 of 2008 dated 30th June, 2008, for confirmation of death
sentence awarded to the convicts vide judgment and order dated
25/28.06.2008, passed by Additional Sessions Judge, Fast Track Court
No.IV, Aurangabad in Sessions Trial Nos. 319 of 2007/ 126 of 2007, (2).
351 of 2007 /186 of 2007 and (3). 99 of 2007/ 194 of 2007)
THE STATE OF BIHAR
Versus
1. KAMESHWAR SINGH,
2. UPENDRA SINGH,
3. ANUJ SINGH -----------------Condemned Prisoners.
-with-
CR. APPEAL No.782 of 2008 (D.B.)
1. UPENDRA SINGH,
Son of Late Chandradeo Singh,
Resident of Village- Karam Dih,
P.S.- Bisrampur,
Post- Pandu,
District- Palamu (Jharkhand)
2. Anuj Singh,
Son of Late Parikha Singh,
Resident of Village- Dala Khurd,
P.S.- Bisrampur,
Post- Tisibar,
District- Palamu (Jharkhand)
3. Kameshwar Singh,
Son of Late Indradeo Singh,
Resident of Village- Belhara,
P.S.- Bisrampur,
Post- Ratnar,
District- Palamu (Jharkhand)------------(Appellants)
Versus
THE STATE OF BIHAR----------------------------------------------(Respondent)
===========
3
For the Appellants : 1. Mr. Surendra Singh,
Senior Advocate.
2. Mr. Rana Pratap Singh,
Senior Advocate.
3. Mr. Rajendra Prasad Singh,
Senior Advocate.
4. Mr. Kamal Nayan Choubey,
Senior Advocate.
5. Mrs. Asha Verma, Advocate.
6. Mr. Rajiv Kumar Singh, Advocate.
7. Mr. Nawal Kishor Singh, Advocate.
8. Mr. Rajani Kant Pandey, Advocate.
9. Mr. Akhileshwar Prasad Singh, Advocate.
10.Mr. Sumant Singh, Advocate.
11.Mr. Aaruni Singh, Advocate.
For the State : Mr. Lala Kailash Bihari,
Additional Public Prosecutor.
For the Informant :1. Mr. R.S.Roy, Senior Advocate.
2. Mr. Pramod Kumar, Advocate.
PRESENT
THE HON’BLE MR. JUSTICE C.M.PRASAD
&
THE HON’BLE MR. JUSTICE V.N. SINHA
=============
V.N. Sinha, J. Death Reference Case No. 4 of 2007 and Cr.
Appeal Nos. 836, 887, 960 and 1006 of 2007 arise out of
Judgment and Order dated 6/7.06.2007, passed by 1st
Additional Sessions Judge, Aurangabad in Sessions Trial
No. 302 of 2006/ 76 of 2006, whereunder each of the two
appellants Manoj Kumar Singh and Yogendra Singh has
been convicted for the offence under Sections 364 A, 302,
201 and 120B of the Penal Code and sentenced under
Section 364A and 302 of the Penal Code to death with
4
direction to be hanged by neck till they are dead. No
separate sentence, however, has been awarded under
Section 120 B and 201 of the Penal Code. Appellants Raju
Kumar Gupta and Raghubir Singh have been convicted
under Sections 364A/34, 302/34, 201/34 and 120B/34
of the Penal Code and each has been awarded
imprisonment for life under Sections 364A/34, 302/34 of
the Penal Code and seven year’s rigorous imprisonment
under Sections 201/34 and 120B/34 of the Penal Code
respectively with direction that the sentences shall run
concurrently. Death Reference Case No. 12 of 2008 and
Cr. Appeal No. 782 of 2008 arise out of Judgment and
Order dated 25/28.06.2008, passed by Additional
Sessions Judge, Fast Track Court No.IV, Aurangabad in
Sessions Trial Nos. (1). 319 of 2007/ 126 of 2007, (2). 351
of 2007 /186 of 2007 and (3). 99 of 2007/ 194 of 2007,
whereunder appellant Kameshwar Singh, Upendra Singh
and Anuj Singh has been convicted under Sections
364A/34, 302/34, 201/34 and 120B/34 of the Penal
Code and each sentenced under Section 364A and 302
read with Section 201/34 and 120B/34 to death with
direction to be hanged by neck till he is dead. As the
aforesaid two judgments dated 6/7.06.2007 and
25/28.06.2008 have been rendered in connection with
Barun P.S.Case No. 165 of 2005, G.R.No. 2330 of 2005
5
and the witnesses examined in the two trials are common,
the references and the appeals have been heard together
and are being disposed of by this common judgment.
2. Prosecution case, as set out in the First
Information Report of the aforesaid Barun P.S.Case No.
165 of 2005, Exhibit-5 is that, Uday Kumar Singh, the
informant on 30.12.2005 at about 10.30 A.M. had gone to
Barun Hydel to attend his duty where he received a call on
his mobile from his home that his elder son Tej Pratap,
aged about six years had gone to the neighbouring shop to
purchase snack and has not returned for over an hour.
The informant came back home and enquired in the
household and searched his son in the neighbourhood
and the nearby grocery shop. When the son could not be
traced, Barun Police Station was also informed that his
elder son has gone missing. Having informed Barun
Police Station the informant also asked his men to search
his son and also informed his relatives telephonically
that his son has gone missing. When informant’s son
could not be traced until late in the evening, the informant
apprehended that his son has been kidnapped by
unknown miscreants and he lodged written report,
Exhibit-3 dated 30.12.2005 at 22 hours giving description
of victim’s appearance and attire. On the basis of written
report, First Information Report, Exhibit-5 alleging offence
6
under Section 364 of the Penal Code was drawn against
unknown accused. Sri Yogendra Paswan, Officer-in-
Charge, Barun Police Station himself took up the
investigation of the case and examined under Section 161
Cr.P.C. on 30.12.2005 itself the parents and other family
member of the victim including the grocery shop owner
Rekha Devi where Tej Pratap had gone to purchase snack
and they all supported the fact that Tej Pratap had gone to
the nearby grocery shop of Rekha Devi, known as
Shubham Kirana Store, for purchasing snack (Takatak) on
30.12.2005 at about 10.30 A.M. and having purchased
the snack while coming back he became traceless and
could not be found. The Superintendent of Police
Aurangabad, having learnt of the kidnapping of Tej
Pratap, formed two special Task Force for recovery of the
victim boy under his order bearing Memo No. 2767 dated
31.12.2005 with specific direction to Sub-Inspector of
Police Sunil Kumar Singh to obtain print out of the
concerned telephone numbers. Six days after the
occurrence on 05.01.2006 a telephonic information was
received by cousin of the informant Chandan Kumar on
his telephone no. 244103 that Tej Pratap is with the caller
and the caller is calling from Banaras. Another call was
received on 09.01.2006 in which ransom amount of Rs. 60
lacs was demanded for releasing the victim boy.
7
Information about the calls received was given to the
Investigating Officer who made arrangement for installing
Caller I.D. Another call was received on telephone no.
244103 of Chandan Kumar on 12.01.2006 at 10.25 A.M.
from Mobile No. 9431615667 in which the caller asked the
receiver of the call to call the father of the victim. Later,
two more calls were received on the same telephone no.
244103 on 12.01.2006 at 10.48 and 11.37 A.M. from
Mobile No. 9431135489 in which instructions were given
to the father of the victim to arrange the ransom amount
for securing the release of the victim boy. Further ransom
calls were received on 14.01.2006 at 12 P.M., 14.42 P.M.
and 16.55 P.M. from Mobile No. 9430055575 on Mobile
No. 9431223950. Thereafter, another ransom call was
received on 15.01.2006 from Telephone No. 95184252696
and again on 20.01.2006 at 11.35 A.M. and 5.19 P.M.
from Telephone Nos. 06184-252840 and 06184-
252499. The Investigating Officer in order to identify the
ransom callers obtained the print out of the telephone
numbers through Sub-Inspector Sunil Kumar Singh
under guidance of superior police officer. On the basis of
the print outs subscriber of Mobile No. 9431615667 and
9431135489 were identified as Radhe Shyam Gupta and
Arvind Kumar Singh, both of Pandu Bazar, Jharkhand.
Having identified the subscribers, the Investigating Officer
8
examined both Radhe Shyam Gupta and Arvind Kumar
Singh for fixing the identity of the callers who had made
the ransom call on 12.01.2006 at 10.25 A.M., 10.48 A.M.
and 11.37 A.M. on telephone no. 244103. Arvind Kumar
Singh stated before the Investigating Officer that he has
exchanged his SIM Card with Raju Kumar Gupta of Pandu
Bazar who is using the same for operating the telephone
booth with number 9431135489 and the telephone booth
is managed by his nephew Mukesh Kumar Gupta. He
further stated that Raju Kumar Gupta and his nephew
Mukesh Kumar Gupta may be in a position to identify the
caller who made call on telephone no. 244103 from the
booth on 12.01.2006 at 10.48 and 11.37 A.M. The
Investigating Officer having identified the telephone booth
requested A.S.I. Ram Baleshwar Ram, Officer-in-Charge of
Kutumba Police Station and Dinesh Jha, A.S.I.
Vishrampur Police Station to seize the SIM Card and
router machine of the two telephone booths having
number. 9431615667 and 9431135489, which was seized
on 24.01.2006 at 14.30 P.M. and 15.30 P.M. in presence
of two seizure-list witnesses, namely, Munna Kumar Singh
and Sanjay Kumar Gupta, as is evident from the seizure-
list dated 24.01.2006, Exhibits 6 and 6/1. The
Investigating Officer thereafter interrogated both Radhe
Shyam Gupta and Raju Kumar Gupta. Radhe Shyam
9
Gupta stated that he is not in a position to identify the
caller who made call from his booth on 12.01.2006 at
10.25 A.M. on telephone no. 244103. Raju Kumar Gupta,
however, confirmed the fact that he has exchanged his
SIM Card with Arvind Kumar Singh and his telephone
booth with number 9431135489 is being managed by his
nephew Mukesh Kumar Gupta who may be in a position
to fix the identity of those who made call from the booth
on telephone no. 244103 on 12.01.2006 at 10.48 and
11.37 A.M. On the basis of the statement of Raju Kumar
Gupta, Mukesh Kumar Gupta was also examined by the
Investigating Officer on 29.01.2006 who stated that on
12.01.2006 Upendra Singh, Manoj Singh and Yogendra
Singh along with few others came to his booth looking for
his uncle Raju Kumar Gupta and along with him went
inside the residential house wherefrom they made the two
calls on telephone no. 244103 at 10.48 and 11.37 A.M.
While they were making calls from inside the house, they
had snapped the telephone connection of the booth. On
the basis of the statement of Mukesh Kumar Gupta, Raju
Kumar Gupta, Upendra Singh and Manoj Singh were
arrested on 30.01.2006 and Upendra Singh interrogated
who recorded his confessional statement on 31.01.2006 at
14 hours at Barun Police Station. From the confessional
statement of Upendra Singh it appears that Yogendra
10
Singh and Kameshwar Singh had come to his house 20-21
days earlier along with two unknown persons and in
presence of Manoj Singh had conveyed that they have
kidnapped the son of a big man of Barun, Aurangabad,
the boy is in custody of their men and if they (Upendra
Singh and Manoj Kumar Singh) helped them in making
the ransom call, they may earn 3-4 lacs. Next morning
also Yogendra Singh and Kameshwar Singh came to him
along with the two unknown persons, whereafter Upendra
Singh, Manoj Singh, Yogendra Singh, Kameshwar Singh
and the two unknown persons went to the booth of Raju
Kumar Gupta and met his nephew Mukesh Kumar Gupta
and asked him to call his uncle Raju Kumar Gupta and
along with Raju Kumar Gupta went inside the house and
made the ransom calls demanding Rs. 60 lacs but the
father of the victim did not agree to pay more than 10 lac
rupees as also insisted that he should be allowed to talk to
his son. After about half an hour another call was made
giving out the description of the victim together with his
dress but his father insisted that he must first speak to
the victim. Upendra Singh further clarified in his
confessional statement that before making the two calls
from the booth of Raju Kumar Gupta one call was made
from the booth of Radhe Shyam Gupta asking the
recipient of the call to make available the father of the
11
victim within five minutes to receive another call. It
further appears from the confessional statement that after
the seizure of the telephone booth of Arvind Kumar Singh
and Raju Kumar Gupta on 24.01.2006 Upendra Singh
became apprehensive of his arrest and in order to avoid
the same met Yogendra Singh along with Manoj Singh and
instructed him to kill the victim boy and dispose of his
dead body. Two days earlier Yogendra Singh informed
Upendra Singh that with the help of local liner the victim
boy has been killed, his dead body confined in a gunny
bag has been thrown in a dry well near a temple located in
a field situate on the western side of the road in Village
Barain. Having recorded the confessional statement of
Upendra Singh the Investigating Officer proceeded to
locate the dry well near a temple on the western side of
the road in village Barain and recovered the dead body
from the dry well of Ram Eqbal Singh on 31.01.2006 at
18.30 hours in presence of Chandan Kumar, cousin of
informant and Jag Narayan Choudhary, as is evident from
the Inquest Report, Exhibit-8 and Seizure-List- Exhibit-
8/1. Having recovered the dead body of the victim boy the
Investigating Officer sent the same for post mortem
examination which was conducted by a Medical Board and
the report of the Medical Board is dated 31.01.2006,
Exhibit-3, wherefrom it appears that the boy was
12
strangulated to death as there was finger-tip pressure
mark on left side of his wind pipe in front of neck leading
to cardiac respiratory failure on account of asphyxia.
Having obtained the post mortem report, the Investigating
Officer requested the Chief Judicial Magistrate,
Aurangabad to add Section 364 A/302/34 and 120B of
the Penal Code in the First Information Report, which
request of the Investigating Officer was allowed by the
learned Chief Judicial Magistrate, Aurangabad under
order dated 02.02.2006. In order to confirm the 161
Cr.P.C. statement of M/S Arvind Kumar Singh and
Mukesh Kumar Gupta the Investigating Officer also
produced them for their examination under Section 164
Cr.P.C. before the learned Magistrate, who recorded their
statement, Exhibits- 9 and 9/1 on 02.02.2006 in which
both the witnesses confirmed their statement made under
Section 161 Cr.P.C. that Arvind Kumar Singh had
exchanged his SIM Card with Raju Kumar Gupta on the
basis of which Raju Kumar Gupta established his
telephone booth with Telephone No. 9431135489 which
was managed by his nephew Mukesh Kumar Gupta. In his
statement under Section 164 Cr.P.C. Mukesh Kumar
Gupta also confirmed his statement recorded under
Section 161 Cr.P.C. that on 12.01.2006 when he was at
the booth, Upendra Singh, Kameshwar Singh, Manoj
13
Singh and Yogendra Singh had come and had asked for
his uncle Raju Kumar Gupta and with him Upendra Singh
and Yogendra Singh went inside his residence and after
snapping the connection with the booth made call for
about one hour from inside the house. In consideration of
the materials collected during investigation as also the
statement of Arvind Kumar Singh and Mukesh Kumar
Gupta under Section 164 Cr.P.C. the Investigating Officer
submitted charge-sheet against Upendra Singh, Manoj
Singh, Raju Kumar Gupta and Raghubir Singh vide
charge-sheet no. 32 of 2006 dated 15.04.2006. Yogendra
Singh who was in jail custody in connection with some
other case was taken on police remand in the instant case
on 03.07.2006, whereafter he recorded his confessional
statement in presence of the Investigating Officer on
05.07.2006 at Town Police Station, Aurangabad in which
he gave a graphic description of the manner in which the
victim boy was kidnapped by Upendra Singh and others
and when he asked for his share in the ransom amount
then Upendra Singh told him that money has not been
paid and the victim is to be killed. Charge-sheet was
submitted against Yogendra Singh vide charge-sheet
no.53 of 2006 dated 17.07.2006, against Anuj Singh vide
charge-sheet no. 104 of 2006 dated 16.11.2006 and
against Kameshwar Singh, vide charge-sheet no. 76 of
14
2007 dated 13.05.2007. After submission of charge-
sheets, cognizance of the offence under Sections 364A,
302, 201 and 120B read with Section 34 of the Penal Code
was taken and the case was committed to the court of
Sessions and Sessions Trial No. 302 of 2006/ 76 of 2006
proceeded in regard to appellant Manoj Kumar Singh,
Raju Kumar Gupta, Raghubir Singh and Yogendra Singh
after charges were framed against them under orders
dated 18.9.2006 and 9.10.2006. The trial of Kameshwar
Singh, Upendra Singh, Anuj Singh was split up vide
Sessions Trial No. (1). 319 of 2007/126 of 2007, (2). 351
of 2007/ 186 of 2007 and (3). 99 of 2007/ 194 of 2007
and charges framed under orders dated 10.7.2007 and
26.7.2007 and after amalgamation of the trials the trial
proceeded.
3. During trial, prosecution examined as many
as 13 witnesses. P.W.-1, Rekha Devi is the owner of the
grocery shop- Shubham Kirana Store, where the victim
had gone to purchase snack (Takatak) and while returning
home he was kidnapped. The witness has confirmed the
fact that the victim boy had come to her shop alone on
30.12.2005 in between 10-10.30 A.M. and after
purchasing snack (Takatak) returned back. Near about
the time when the boy had come to her shop, she had also
seen Raghubir Singh, the guard of P.N.B., Barun Branch
15
near the bank gate. The witness further claimed that on
the date of occurrence the guard was not on cash duty.
She further stated that she learnt about the kidnapping
on the same day around 11 A.M. She further claimed to
have seen Kameshwar Singh Upendra Singh and one
another (who was not present in dock) with the Bank
guard on the date of occurrence in between 9-9.30 A.M.
but no such claim about identifying the other accused
persons with Bank guard was ever made by the witness
before the Investigating Officer, as is evident from
paragraph 11 of her deposition in Sessions Trial No. 319
of 2007/ 126 of 2007.
4. P.W.-2 is Sushil Kumar Singh, cousin of the
informant and uncle of the victim. He also confirmed the
fact that victim was kidnapped on 30.12.2005 and further
went on to state that after five days of the occurrence
information about the kidnapping was first received on
telephone no. 244103 of Chandan Kumar in which the
caller claimed that he is calling from Banaras and the
victim boy is with him. Police was informed about such
call, whereafter Caller I.D. was installed at the behest of
the police. 3-4 days thereafter another call was received
demanding Rs. 60 lacs as ransom amount with further
instruction to arrange money in a bag and to board the
evening train coming from Palamu and drop the bag
16
containing money on the left side of Bhim Chulha Railway
Station. The witness further states that when the
informant did not agree to drop the money bag at Bhim
Chulha Railway Station then threat of dire consequence
was extended. According to this witness the ransom caller
was identified on the basis of the print out of the
concerned telephone numbers which led to the arrest of
Upendra Singh and others. Upendra Singh made a
confessional statement on the basis of which dead body
was recovered from a dry well in village- Barain. The
witness further claimed in paragraph 28 that on
30.12.2005 he had seen Upendra Singh, Kameshwar
Singh and others talking to the Bank Guard Raghubir
Singh in between 09-9.30 A.M., but no such statement
appears to have been made before the Investigating
Officer, as is evident from paragraphs 119 of the
Investigating Officer, P.W.-10 at page 172 of the brief and
paragraph 130 at page 175 and 176 of the brief.
5. P.W.-3 in Sessions Trial No. 302 of 2006/ 76
of 2006 is Narayan Singh who has been examined in the
subsequent trial as P.W.-4. He is the father of the
informant and grand father of the victim boy. The witness
has deposed that his grand son Tej Pratap was kidnapped
on 30.12.2005. Ransom calls were received. Caller I.D.
was installed, whereafter accused-persons were identified
17
and arrested and dead body was recovered from a dry well
in village- Barain. Witness further stated that there is
enmity with the Bank Guard who is resident of the same
village where the dead body was recovered. Witness
further states that his son M.L.A. Bhim Kumar Singh was
Punch in a dispute between Bank Guard Raghubir Singh
and the Sao’s (Gupta’s) of village Barain. In paragraph 7 of
the cross-examination the witness claimed that Raghubir
became inimical as M.L.A. Bhim Singh decided against
him in the Panchayati.
6. P.W.-4 Arjun Singh is the elder brother of the
informant who has been examined as P.W.5 in the
subsequent trial. He also confirmed that his nephew Tej
Pratap was kidnapped on 30.12.2005. He further stated
that the first ransom call was received on telephone no.
244103 of Chandan Kumar on 05.01.2006, whereafter
another ransom call was received on 09.01.2006 on the
same number and the ransom demand of Rs. 60 lacs was
made. Caller I.D. was installed thereafter. Further ransom
calls were received on the mobile of informant Uday
Kumar Singh from Telephone No.95184252696 with
instruction to arrange money. On 20.01.2006 ransom call
was received asking Uday Kumar Singh, father of the
victim to arrange the ransom amount in a black bag and
to board Varanshi-Ranchi Intercity Train and drop the bag
18
near Bhim Chulha Railway Station. The accused persons
were identified on the basis of the print out of the
concerned telephone numbers and arrested on
30.01.2006, whereafter on the basis of the confessional
statement the dead body was recovered from a dry well in
village Barain and Inquest-Report was prepared in
presence of Chandan Kumar and Jay Narayan
Choudhary. He further stated that Raghubir Singh
suspected that Bhim Kumar Singh was helping his
adversary Pramod Kumar Gupta in the land dispute.
7. P.W.-5 is Babita Sinha. She is the mother of
the victim and has been examined as P.W.-6 in the other
trial. She has confirmed that her son had gone to
purchase snack from Shubham Kirana Store around 10-
10.30 A.M. on 30.12.2005 but he never returned home
and when she discovered Teju has disappeared, she
informed her husband telephonically at his place of work
that Teju has gone missing. She further confirmed that
the ransom calls were received on 05,09-01-2006 and
information about those calls were given to the police,
whereafter Caller I.D. was installed. On the basis of the
print out of the concerned telephone numbers ransom
callers were identified and arrested whereafter dead body
was recovered. Raghubir Singh, the Guard of P.N.B.,
Barun Branch is on inimical terms with the elder brother
19
of her husband Bhim Kumar Singh, who had arbitrated a
dispute between the Bank Guard and others of Village
Barain.
8. P.W.-6 is Bhim Kumar Singh, the elder
brother of the informant who has been examined as P.W.-
3 in the subsequent trial. He confirmed the fact that he
had arbitrated a dispute between the Bank Guard
Raghubir Singh, Pramod, Jawahar and Manoj Gupta and
Raghubir Singh became inimical as he had given his
verdict in favour of Guptas whereafter Raghubir Singh
threatened the family of dire consequences. He further
stated that after the occurrence Raghubir was not
available in the Bank. The witness also stated that the
ransom call was received demanding ransom whereafter
Caller I.D. was installed and the accused persons were
identified through print out of the concerned telephone
numbers on the basis of which Upendra Singh, Manoj
Singh and the booth owner, from whose booth the ransom
call was made, were arrested and on the basis of the
statement of Upendra Singh dead body of Tej Pratap was
recovered. Witness claimed that in between 9-9.30 A.M. on
the date of occurrence he had seen the appellants talking
to the Bank Guard Raghubir Singh. He also claimed that
he had seen them two days prior to the date of occurrence
taking meal in Akash Ganga Hotel along with Bank Guard
20
Raghubir Singh. No such claim, however, was made by the
witness before the Investigating Officer as is evident from
Paragraph 115 of his evidence.
9. P.W. 7 in both the trial is Uday Kumar Singh,
the informant and father of the victim, who submitted
written report, Exhibit-1 on the basis of which formal
F.I.R., Exhibit-5 was drawn. He reiterated the contents of
the written report and further deposed that on 5.1.2006 a
call was received on telephone no. 244103 of Chandan
Kumar. The caller claimed that he was calling from
Banaras and victim is in his custody. Another call on the
same telephone number was received on 9.1.2006 by his
wife Babita Sinha. Caller I.D. was installed thereafter. He
further stated that on 12.1.2006 another call on the same
telephone number was received at 10.45 A.M. in which
instruction was given to arrange 60 lac rupees as ransom
amount. Witness, however, requested the caller to arrange
his telephonic talk with the victim boy. Yet another call on
the same number was received on the same day at 11.37
A.M. in which the caller gave description of the child as
also about his dress. According to this witness further
ransom calls were received on 14.1.2006 and 18.1.2006.
On 20.1.2006 at 11 A.M. ransom caller instructed the
witness to arrange ransom money in a black bag and at
5.15. P.M. further instructed him to board the train and
21
come to Bhim Chulha railway station and drop the bag on
the left side of the railway track. On the basis of the print
out of the concerned telephone numbers the ransom
callers were identified and 3-4 amongst them were
arrested. One of the arrestee Upendra Singh led to the
recovery of the dead body of his son from a dry well in
village Barain. Witness, however, candidly admitted in
paragraph- 15 that none was suspect on the date of
occurrence. Witness further confirmed in paragraph-19
that Caller I.D. was installed in the exchange at the
behest of the police authorities. Witness claimed that on
the date of occurrence when he was going to his place of
duty he had seen the appellants in front of the P.N.B.,
Barun Branch talking to the Bank Guard, as is evident
from his statement in Paragraphs 4,5, and 34.
10. P.W. 8, Chandan Kumar is the cousin of the
informant. He has also been examined in the subsequent
trial as P.W. 9 and at his telephone number 244103 first
call informing that Tej Pratap, the victim, is in possession
of the caller, was received. Other ransom calls on 9.1.2006
and 12.1.2006 were also received at his aforesaid
telephone number. He has further stated that on the basis
of the print out, the ransom callers were identified and
Upendra Singh and others were arrested and dead body
recovered from a dry well in village Barain at the behest of
22
Upendra Singh. Witness has further confirmed that he is a
witness on the Inquest Report of the deceased.
11. P.W. 9 is Mukesh Kumar Gupta who has
been examined in the subsequent trial as P.W.-11. He is
the nephew of accused Raju Kumar Gupta and is said to
be the manager of the telephone booth, which was
operated with telephone no. 9431135489 from where two
ransom calls were made on 12.1.2006 at 10.48 and 11.37
A.M. by Upendra Singh, Yogendra Singh and others after
they went inside the residential portion of the house of
Raju Kumar Gupta and made the two calls after snapping
the telephone connection of the booth. Such statement
was made by the witness when he was examined before
the Magistrate on 2.2.2006 but the witness resiled from
his statement in court and stated that the statement made
before the Magistrate under Section 164 Cr.P.C. was
under police pressure and duress.
12. P.W. 10, Doctor Shyam Narayan Sahu and
Dr. Devendra Kumar who has been examined as P.W. 8 in
the subsequent trial are the members of the Medical
Board and conducted autopsy on the person of the victim
boy and confirmed that he was done to death by applying
pressure on his wind pipe and the victim died due to
asphyxia leading to cardio-respiratory failure.
13. P.W. 11, Yogendra Paswan is the
23
Investigating Officer of the case. He has been examined in
the subsequent trial as P.W. 10. On the date of occurrence
he was the Officer-in-Charge of Barun Police Station but
was on leave. He resumed duty on the same date at 9.P.M.
and having perused the Station Diary learnt that Tej
Pratap, son of Uday Kumar Singh was missing. He visited
the house of the victim and received the written report and
took charge of the investigation. Same night he visited the
place of occurrence and recorded the statement of Rekha
Devi, the proprietress of the grocery shop, Shubham
Kirana Store, where the victim had gone to purchase
snack (Takatak). He also recorded the statement of the
father (informant), mother, grand-father and uncle(s) of
the victim boy. Having learnt about the telephone call
received on Telephone No. 244103 on 5.1.2006 and
9.1.2006, he informed the superior police officer about
such calls and made arrangement to trace the caller. On
12.1.2006 at 10.28 A.M. a call was received on telephone
number 244103 from Mobile No. 9431615667 in which
instruction was given to call Uday Kumar Singh. Later at
10.48 A.M. another call on the same number came from
Mobile No. 9431135489, which was received by the
informant in which 40 lac rupees was demanded as
ransom amount. Again at 11.36 A.M. another call from the
same Mobile No. 9431135489 came in which description
24
about the dress of the victim boy was given. On 14.1.2006
at 12 noon another call from Mobile No. 9430055575
came on the mobile of the informant, 9431223950. Again
on the same day from the same mobile number ransom
call came at 14.42 P.M. in which the ransom caller
demanded 30 lac rupees as ransom amount. Again from
the same mobile number a missed call came at 16.55 P.M.
On 18.1.2008 ransom call was received from Mobile No.
95184252696. On 20.1.2006 another ransom call came at
11.35 A.M. from telephone no. 06184252840. Again on
the same day at 16.19 hours ransom call came from
telephone no. 06184252499 with instruction to come with
the ransom money in a black bag at Bhim Chulha railway
station. From the print outs obtained, it transpired that
mobile telephone no. 9431615667 belongs to Radhe
Shyam Gupta, who operates the telephone booth from
Mehboob Studio, Pandu Bazar. From his booth ransom
call was received on telephone no. 244103 on 12.1.2006 at
10.28 A.M. Another call on the same number was received
on 12.1.2006 at 10.48 A.M. from Mobile No. 9431135489,
which is in the name of Arvind Kumar Singh. Arvind
Kumar Singh exchanged his SIM Card with Raju Kumar
Gupta. Investigating Officer further claimed that both the
booths were raided on 24.1.2006 and the SIM Cards of the
two booths along with router machine and register were
25
seized by Sub-Inspector Ram Baleshwar Ram vide seizure
list dated 24.1.2006, Exhibits -6 and 6/1. Witness further
confirmed that the aforesaid two booth owners, Radhe
Shyam Gupta and Raju Kumar Gupta were interrogated
and in their interrogation, Radhe Shyam Gupta stated
that he is not aware about the whereabouts of the person
who made the call from his booth on 12.1.2006 at 10.28
A.M. Raju Kumar Gupta, however, stated before the
Investigating Officer that the details of the caller can only
be provided by his nephew Mukesh Kumar Gupta, who
manages the booth. The witness further stated that
Mukesh Kumar Gupta when examined under Section 161
Cr. P.C. had confirmed that two calls were made from his
booth on 12.1.2006 at 10.48 and 11.37 A.M. by Upendra
Singh and others after they had gone inside the residential
portion of the house of his uncle Raju Kumar Gupta and
the callers, while making the call, had snapped the
telephone connection of the booth. On the basis of the
statement of Mukesh Kumar Gupta, Upendra Singh,
Manoj Singh, Raju Kumar Gupta were arrested on
30.1.2006. Upendra Singh was thereafter subjected to
further interrogation at 22.00 hours and he recorded his
confession on 31.1.2006 at 2.00 P.M. Having recorded his
confession Upendra Singh led the police team to village
Barain and the dead body of the victim recovered from the
26
dry well located in a field situate west of the road near a
temple as foul smell was emanating therefrom. Having
recovered the dead body, same was sent for post mortem,
which was conducted by a team of doctors. Post mortem
report confirmed that the victim was done to death by
applying pressure on his wind pipe. Mukesh Kumar Gupta
recorded his 164 Cr. P.C. statement reiterating his earlier
version recorded under Section 161 Cr. P.C. that two
ransom calls were made from his booth on 12.1.2006 on
telephone no. 244103 at 10.48 and 11.37 A.M. First
charge-sheet bearing no. 32/2006 dated 15.4.2006 was
submitted against Upendra Singh, Manoj Singh, Raju
Kumar Gupta and Raghubir Singh. Yogendra Singh was
arrested on 22.6.2006 whereafter he also recorded his
confessional statement at Aurangabad Police Station and
charge-sheet was submitted against him Vide charge-
sheet No. 53 of 2006 dated 17.07.2006. Charge sheet
against Anuj Singh was submitted on 16.11.2006 vide
charge-sheet no. 106/2006 and against Kameshwar Singh
charge-sheet was submitted on 13.5.2007 vide charge-
sheet no. 76/2007.
14. P.W. 12 in both the trials is Ratan Kumar,
the Judicial Magistrate, who recorded 164 Cr.P.C.
statement of Mukesh Kumar Gupta and Arvind Kumar
Singh.
27
15. P.W. 13 is Sunil Kumar Singh, member of
the Task Force, who was instructed to collect the print
out, Exhibit-7 from the B.S.N.L office and he obtained the
same and gave it to the Investigating Officer for use in the
trial.
16. Besides the prosecution evidence, defense
has also led evidence in Sessions Trial No. 302 of 2006/76
of 2006. D.W. 1, Suresh Ram is the Chowkidar of
Vishrampur Police Station. D.W. 2, Doctor Arun Kumar is
said to have treated the son of appellant Raju Kumar
Gupta and his prescription is marked as Exhibit-E. D.W.
3, Pappu Kumar is a shop-keeper who has issued cash
memo showing sale of Mobil oil. D.W. 4 Sanjay Kumar
Gupta is the brother of Raju Kumar Gupta, who
accompanied Raju Kumar Gupta when he had gone to
attend his son at Tata Memorial Hospital, Jamshedpur.
D.W. 5, Anand Kumar Singh is the Branch Manager of
Punjab National Bank, Barun Branch. D.W. 6, Yogendra
Singh is appellant in Cr. Appeal No. 836 of 2007 and has
come forward to state that he never recorded any
confessional statement and has further stated that he has
no connection with Upendra Singh, appellant No.1 of Cr.
Appeal No. 782 of 2008.
17. Having read the prosecution evidence,
counsel for the appellants submitted that the trial court
28
convicted the appellants relying on the confessional
statement of appellant Upendra Singh, 164 Cr.P.C.
statement of Arvind Kumar Singh, Mukesh Kumar Gupta
and the print out although there is no legal evidence to
connect the appellants with the ransom call received by
the prosecution party on 5.1.2006, 9.1.2006, 12.1.2006
and further calls received on subsequent dates as
according to the learned counsel, appellants are connected
with the ransom calls only with reference to the
confessional statement of Upendra Singh and Yogendra
Singh and 161/164 Cr.P.C. statement of Arvind Kumar
Singh and Mukesh Kumar Gupta. The two confessional
statements of appellant Upendra Singh and Yogendra
Singh were recorded by the Investigating Officer when they
were in police custody, as such, cannot be proved against
them as also against other accused in the light of the
provisions contained in Sections 24 to 26 of the Indian
Evidence Act and Section 162 of the Criminal Procedure
Code. Reliance in this connection is placed on the dictum
laid down by the Hon’ble Supreme Court in the case of
Rao Shiv Bahadur Singh and another Versus State of
Vindh-P, reported in AIR 1954 SC 322, paragraph-23.
Further reliance was place on the case of Hazari Lal
Versus The State (Delhi Admn.), reported in AIR 1980
Supreme Court 873, paragraph-7 and on the case of
29
Commissioner of Police, New Delhi Versus Narender
Singh, reported in (2006) 4 Supreme Court Cases 265 and
it was submitted that confessions made to the police
officer or in custody of the police to any person
whomsoever, unless made in the immediate presence of a
Magistrate shall be presumed to have been obtained under
the circumstances mentioned in Section 24 and
inadmissible except so far as provided by Section 27 of
the Evidence Act.
18. With reference to the judgment of the
Hon’ble Supreme Court in the case of Aghnoo Nagesia
Versus State of Bihar, reported in AIR 1966 Supreme
Court 119 it was submitted that even recovery of the dead
body at the instance of Upendra Singh is not admissible
under Section 27 of the Evidence Act as from his extra
judicial confession, Exhibit -7, it does not appear that
Upendra Singh had concealed the dead body of the victim
in the dry well at village Barain rather it only appears
that he had knowledge of the fact that the body of the
victim has been concealed in the well. Upendra Singh is
said to have derived his knowledge about the concealment
of the dead body in the well at village Barain from
Yogendra Singh and it is submitted with reference to the
evidence of the Investigating Officer that he was led to
village Barain by Upendra Singh but the dead body could
30
be recovered only on the basis of the foul smell emanating
therefrom, as such, according to the learned counsel such
recovery can not be said to be made at the instance of
appellant Upendra Singh. Reliance in this connection may
also be placed on the judgment of the Hon’ble Supreme
Court in the case of Prabhoo Versus State of Uttar
Pradesh, reported in AIR 1963 Supreme Court 1113,
paragraph-9.
19. Learned counsel further submitted that from
the evidence of Mukesh Kumar Gupta, P.W. 9 in the first
trial and P.W. 11 in the subsequent trial, it is evident that
his statement under Section 161 and 164 Cr.P.C was
recorded under threat and duress, which was
subsequently resiled in court. In the circumstances,
statements under Section 164 Cr.P.C. Exhibit-9/1 could
not be used against the appellants. Reliance in this
connection was placed on the judgment of the Privy
Council in the case of Brij Bhushan Singh Versus
Emperor, reported in AIR 1946 Privy Council 38 and with
reference to the said judgment it was submitted that the
statement under Section 164 Cr. P.C. cannot be used as a
substantive piece of evidence. The statement can only be
used to cross examine the person who recorded the
statement and the result may be to contradict the witness,
nothing beyond that. If the statement of Arvind Kumar
31
Singh and Mukesh Kumar Gupta under Section 164 Cr.
P.C. is ignored then there is nothing on record to connect
the appellants with the ransom call made from Mobile No.
9431135489 on 12.1.2006 at 10.48 and 11.37 A.M.
Further reliance in this connection was placed on the
judgment of Hon’ble Supreme Court in the case of State of
Delhi Versus Sri Ram Lohia, reported in AIR 1960
Supreme Court 490 and in the case of Ram Kishan Singh
Versus Harmit Kaur and another, reported in AIR 1972
Supreme Court 468.
20. It was further pointed out with reference to
the evidence of Shri Ratan Kumar, the Judicial Magistrate
who recorded the 164 Cr. P.C. statement of Arvind Kumar
Singh and Mukesh Kumar Gupta that the recording
Magistrate had not administered any oath to the two
before recording their statement under Section 164 Cr.
P.C. and in the circumstances, the statement cannot be
treated as evidence adduced in court. It was also
submitted that as the appellants had no opportunity to
cross-examine Arvind Kumar Singh and Mukesh Kumar
Gupta when they recorded their 164 Cr. P.C. statement,
their statement cannot be relied as evidence. Reliance in
this connection was placed on the case of Neminath
Appayya Hanamannanavar Vs. Jamboorao Satappa
Kocheri, reported in AIR 1966 Mysore 154.
32
21. With reference to the seizure list, Exhibits-6
and 6/1, whereunder two SIM Cards of two telephone
booths were seized, it was submitted that as neither the
seizing officers nor the seizure list witnesses have been
examined, the factum of seizure has not been proved. It is
submitted that mere exhibiting the document does not
prove its content. Reliance in this connection is placed on
the case of Sait Tarajee Khimchand and others Vs.
Yelamarti Satyam and others, reported in AIR 1971
Supreme Court 1865 and on the case of Narbada Devi
Gupta Versus Birendra Kumar Jaiswal and another,
reported in (2003) 8 Supreme Court Cases 745. It is
submitted that the contents of the documents have to be
proved by those who can vouchsafe for the truth of the
fact in issue.
22. It is submitted with reference to the print
outs that the Mobile No. 9431135489 is in the name of
Arvind Kumar Singh who is said to have exchanged the
SIM Card with Raju Kumar Gupta but Arvind Kumar
Singh having not examined to state that he exchanged his
SIM Card with Raju Kumar Gupta. The appellants cannot
be connected with the calls originating from Mobile No.
9431135489 on 12.1.2006 at 10.48 and 11.37 A.M.
23. It is further submitted with reference to the
evidence of Sunil Kumar Singh, P.W.-13 who obtained the
33
print out, Exhibit-7 that print out has not been proved in
the light of the provisions contained in Section 65B of the
Evidence Act as neither the officer who was the incharge
of the Exchange wherefrom the print outs have been taken
has been examined to prove its correctness nor there is
any certificate on the print out, as is required by law to
certify its correctness. Reliance in this connection has
been placed on the judgment of the Hon’ble Supreme
Court in the case of State (N.C.T. of Delhi) Versus Navjot
Sandhu, reported in 2005 Crl. L.J. 3950 (Supreme Court),
Paragraph-15.
24. It is further submitted on behalf of the
appellants that the evidence of P.Ws 1,2,3 and 7 that they
had seen the appellants in front of the Punjab National
Bank, Barun Branch on the date of occurrence near about
9-9.30 A.M. cannot be relied upon, as such, statement
was not made by them before the Investigating Officer vide
paragraphs 101, 102, 109, 110, 119 and 120. According
to the learned counsel such omission amounts to
contradiction, as such, vital information about the
presence of the accused at the place of occurrence near
about the time of occurrence has not been conveyed to the
Investigating Officer. Reliance in this connection is placed
on the judgment in the case of State of Maharashtra
Versus Bharat Chaganlal Raghani and others, reported in
34
2001(9) Supreme Court Cases 1, Paragraphs-50 and 51.
25. It is also submitted on behalf of the
appellants that the identification made in the court room
after passage of more than a year of the occurrence cannot
be relied upon to hold the appellants guilty.
26. It is also submitted with reference to the
judgment of Hon’ble Superme Court in the case of
Kashmira Singh Versus The State of Madhya Pradesh,
reported in AIR 1952 Supreme Court 159 that in
kidnapping/ murder case of a six year old boy which is
cruel and revolting, it is necessary to examine the
evidence with more than ordinary care, lest the shocking
nature of the crime induce and instinctive reaction against
a dispassionate judicial scrutiny of the facts and law.
27. Shri Lala Kailash Bihari, learned
Additional Public Prosecutor with reference to the answer
given by appellant Kameshwar Singh while replying to
question Nos. 4 and 5 put to him during his examination
under Section 313 of the Code of Criminal Procedure
submitted that he has admitted his guilt, as his answer to
the question that he and other appellants made the
ransom call on 12.1.2006 from the telephone booth, is in
affirmative and the charge being under Sections 364A/34,
302/34, 201/34 and 120B/34 of the Penal Code, the
affirmative answer given by appellant Kameshwar Singh
35
shall bind the other appellants also. In this connection he
relied upon the judgment of Hon’ble Supreme Court in the
case of State of U.P. Versus Lakhmi, reported in (1998) 4
Supreme Court Cases 336 and in the case of Rattan Singh
Versus State of H.P., reported in (1997) 4 Supreme Court
Cases 161.
28. Learned counsel further submitted with
reference to the evidence of P.W.-1 Rekha Devi, P.W.-2,
Susil Singh, P.W.-3 Bhim Singh, P.W.- 6, Babita Sinha
and P.W. -7, informant that those witnesses had seen the
Bank Guard Raghubir Singh talking to the four appellants
in front of the Branch gate on 30.12.2005 in between 9-
9.30 A.M. P.W.-3, Bhim Singh had even seen the Bank
Guard and the appellants two days prior to the date of
occurrence in Akash Ganga Hotel where they were taking
meal and he had gone to take refreshment. Such
statement is relied upon by the prosecution party to
establish conspiracy hatched by Raghubir Singh with
other appellants to feed fat his grudge against Bhim Singh
and his other family member as he had given verdict in
Panchayati against Raghubir Singh.
29. Sri Prasad, learned Additional Public
Prosecutor further submitted with reference to the 164
Cr.P.C. statement of Mukesh Kumar Gupta, P.W.-11,
(Exhibit-12), that the statement having been recorded by
36
the Magistrate as also signed by the witness himself and
admitted in evidence without objection should be relied
upon ignoring the resiled statement of P.W.-11 recorded in
court as the 164 Cr.P.C. statement of P.W.-11 is found
corroborated from the print out, Exhibit-7, which was
obtained by the Sub-Inspector Sunil Kumar Singh, P.W.-
13 from the B.S.N.L. Office.
30. Sri Prasad with reference to the evidence of
the Investigating Officer recorded in paragraph 13
submitted that the seizure-memo dated 24.01.2006,
Exhibits-6 and 6/1 was also admitted in evidence
without objection and contents thereof need not be proved
by examining the officer who made the seizure and the
witnesses in whose presence the seizure was effected.
Notwithstanding their non-examination the factum of
seizure be taken as proved as the seizure list- Exhibit- 6
and 6/1 was admitted in evidence without objection.
31. Sri Prasad, learned Additional Public
Prosecutor, with reference to the evidence of Sub-
Inspector Sunil Kumar Singh, P.W.-13 in the earlier trial
submitted that the print outs were obtained by Sunil
Kumar Singh, P.W.-13 in compliance of the instructions of
the Superintendent of Police, contained in order bearing
Letter No. 2767/Confidential dated 31.12.2005, Exhibit-X
in discharge of official duty, photo copy of print out was
37
marked exhibit as original was not available. He further
submitted with reference to the contents of paragraph-14
of the Examination-in-Chief of the Investigating Officer,
P.W.-10 in the subsequent trial that the print out in 19
pages was obtained by Sub-Inspector Ram Baleshwar
Ram and Sub-Inspector Sunil Kumar Singh from
Telecommunication Department, Gaya and Patna, original
whereof is presently available and marked Exhibit-7 and
with reference to the aforesaid deposition he submitted
that print outs may not have been certified, as is required
under Section 65-B of the Evidence Act but has been
obtained by the police officers in official discharge of duty,
as such, is admissible in evidence as secondary evidence
in the light of the provisions contained in Sub-Section (2)
of Section 63 of the Evidence Act. In this connection, he
relied on the observations of the Hon’ble Supreme Court in
the case of State (NCT of Delhi) Vs. Navjot Sandhu alias
Afsan Guru, reported in (2005) 2 Supreme Court Cases
(Cri) 1715 at page 1820, paragraphs 51 and 52.
32. Learned counsel for the informant with
reference to Section 10 of the Evidence Act submitted that
the confessional statement of Upendra Singh and
Yogendra Singh can be used even against the other
conspirators and in support of evidence of conspiracy he
relied on the statement of P.W.3, Bhim Singh who had
38
seen the appellants along with Raghubir Singh two days
prior to the occurrence in Akash Ganga Hotel and on the
date of occurrence P.Ws. 1,2,3,5,6 and 7 had seen
Raghubir Singh talking to the other appellants in front of
the Branch gate in between 9-9.30 A.M., just prior to the
occurrence. In this connection further reliance is placed
on the judgment of the Hon’ble Supreme Court in the case
of State of Maharashtra Versus Damu Gopinath Shinde
and others, reported in AIR 2000 Supreme Court 1691.
33. Learned counsel for the informant further
submitted that identification of the appellants by the
witnesses in court room, may be after one year of the
occurrence, should carry weight as prior thereto they had
no occasion and opportunity to identify them and in
support of such plea he relied on the judgment of the
Hon’ble Supreme Court in the case of Malkhan Singh and
others Versus State of M.P., reported in (2003) 5 Supreme
Court Cases 746.
34. Having considered the evidence of the
prosecution/ defence witnesses and the submissions
made in the Court, it appears that Tej Pratap, elder son of
the informant aged about six years, had gone to purchase
snack from Shubham Kirana Store on 30.12.2005 around
10-10.30 A.M. While returning home, he became
traceless. His mother, Babita Sinha searched for him, but
39
he could not be found, then she telephoned the informant
on his mobile who was attending duty at Barun Hydel.
The informant having received the telephonic message,
returned home and searched for Tej Pratap in the
neighbourhood as also in the grocery shop (Shubham
Kirana Store). When Tej Pratap could not be found,
informant telephonically informed Barun Police Station
and his relatives that his elder son Tej Pratap has gone
missing while returning from the grocery shop (Shubham
Kirana Store). He also asked his men to search for him.
Such information was recorded in the station diary. Sri
Yogendra Paswan, Officer-in-charge, Barun Police Station
was on leave on 30.12.2005. He joined duty during the
evening hours on the same day at about 9.00 P.M. and
having perused the station diary, learnt that son of the
informant had gone missing. He, accordingly, came to the
residence of the informant on 30.12.2005 late in the
evening by which time those who were deputed by the
informant to search/ trace Tej Pratap had also informed
the informant that Tej Pratap could not be traced, which
led the informant to believe that Tej Pratap has been
kidnapped and he, accordingly, submitted his written
report dated 30.12.2005, Exhibit-3 to Sri Yogendra
Paswan alleging kidnapping of his son by unknown
miscreants on the basis of which formal First Information
40
Report, Exhibit-5 was drawn. The Investigating Officer,
having received the written report, examined the parent,
uncle(s) and grandfather of Tej Pratap, including the
proprietress of Shubham Kirana Store, Rekha Devi where
Tej Pratap had gone to purchase snack (Takatak) on
30.12.2005 in between 10-10.30 A.M. and while returning
therefrom become traceless, further late in the same
evening, all the family members of Tej Pratap, including
proprietress of Shubham Kirana Store, Rekha Devi
confirmed the fact that Tej Pratap had gone to purchase
snack (Takatak) in between 10-10.30 A.M. from Shubham
Kirana Store and while returning home, he became
traceless.
35. The Superintendent of Police, Aurangabad,
having learnt of the kidnapping of Tej Pratap, formed two
special Task Force for recovery of the victim boy under his
order, bearing Memo No. 2767 dated 31.12.2005, Exhibit-
X. On 5.1.2006, six days after the disappearance of Tej
Pratap, a telephonic information was received by P.W.-8/9
Chandan Kumar, cousin of the informant on his telephone
No. 244103 informing him that the caller was calling from
Banaras and Tej Pratap was in his custody. Another call
on the same telephone number of Chandan Kumar was
received on 9.1.2006, which was received by P.W. 5/6
Babita Sinha, mother of Tej Pratap in which caller
41
demanded Rs. Sixty lacs as ransom money for releasing
the victim. Information about the calls received was given
to the Investigating Officer, P.W.- 11/10 who made
arrangement for installing Caller I.D. Another call was
received from mobile number 9431615667 on the same
telephone number of Chandan Kumar on 12.1.2006 at
10.25 A.M. and the caller asked the receiver of the call to
call the father of the victim, informant, P.W.-7. Two more
calls on the same day (12.1.2006) were received on the
same telephone number 244103 from mobile number
9431135489 at 10.48 and 11.37 A.M. in which
instructions were given to the father of the victim,
informant, P.W.-7 to arrange the ransom amount in order
to secure release of the victim boy. The Investigating
Officer, Sri Yogendra Paswan, P.W.-11/10 in order to
identify the ransom callers, obtained the print out of the
concerned telephone numbers 9431615667 and
9431135489 through the Sub-Inspector of Police, Sri
Sunil Kumar Singh, who was authorized to obtain the
same from BSNL office by the Superintendent of Police,
Aurangabad. From the print out, subscriber of mobile
numbers 9431615667 and 9431135489 were identified as
Radhe Shyam Gupta and Arvind Kumar Singh, both of
Pandu Bazar, Jharkhand. Having identified the
subscriber, the Investigating Officer examined both Radhe
42
Shyam Gupta and Arvind Kumar Singh for fixing the
identity of the caller, who had made ransom call on
telephone number 244103 on 12.1.2006 at 10.25 A.M.,
10.48 A.M. and 11.37 A.M. Arvind Kumar Singh stated
before the Investigating Officer that he has exchanged his
SIM Card with Appellant in Cr. Appeal No. 1006 of 2007,
Raju Kumar Gupta of Pandu Bazar, who is using the SIM
Card for operating telephone booth with mobile number
9431135489 and the booth is managed by his nephew
Mukesh Kumar Gupta, P.W.-9/11. Arvind Kumar Singh
further stated that Raju Kumar Gupta and Mukesh
Kumar Gupta may be in a position to identify the caller
who made call from the booth on 12.1.2006 at 10.48 and
11.37 A.M. The Investigating Officer, having identified the
two telephone booths, requested the Assistant Sub-
Inspector of Police, Sri Ram Baleshwar Ram, Officer-in-
Charge of Kutumba Police Station and Dinesh Jha, A.S.I.
of Vishrampur Police Station to seize the SIM Card and
router machine of the two telephone booths of Radhey
Shyam Gupta and Raju Kumar Gupta. The seizure of the
SIM Card, router machine and the register maintained in
the two booths was made on 24.1.2006 at 14.30, 15.30
hours respectively in presence of two seizure list
witnesses, namely, Munna Kumar Singh and Sanjay
Kumar Gupta. The two seizure lists have been admitted in
43
evidence as Exts. 6 and 6/1 without any objection, but the
factum of seizure of the SIM Card, router machine and the
register maintained in the two booths has not been proved
by either examining the seizure list witnesses or the police
officer who effected the seizure. Seizure list has been
admitted in evidence on the basis of the evidence of the
Investigating Officer, who identified the writing of Ram
Baleshwar Ram, one of the police officers, who effected the
seizure. The Investigating Officer, thereafter, interrogated
Radhe Shyam Gupta and Raju Kumar Gupta. Radhe
Shyam Gupta stated that he is not in a position to identify
the caller who made call from his booth on 12.01.2006 on
telephone number 244103 at 10.25 A.M. Raju Kumar
Gupta, however, confirmed the fact that he has exchanged
the SIM Card with Arvind Kumar Singh and his telephone
booth with number 9431135489 is being managed by his
nephew Mukesh Kumar Gupta, P.W.-9/11 who may be in
a position to fix the identity of those who made call from
the booth on 12.01.2006 on telephone number 244103 at
10.48 and 11.37 A.M. Having examined Raju Kumar
Gupta, the Investigating Officer examined Mukesh Kumar
Gupta on 29.1.2006 who stated that on 12.1.2006,
appellant(s) Upendra Singh in Cr. Appeal No. 782 of 2008,
Manoj Kumar Singh in Cr. Appeal No. 960 of 2007 and
Yogendra Singh in Cr. Appeal No. 836 of 2007 had come
44
to his booth looking for his uncle, Raju Kumar Gupta and
along with him went inside his residential house
wherefrom they made two calls on 12.01.2006 on
telephone number 244103 at 10.48 and 11.37 A.M. While
making the call, they had snapped the connection of the
telephone booth. On the basis of the statement of Mukesh
Kumar Gupta, Raju Kumar Gupta, Upendra Singh and
Manoj Kumar Singh were arrested on 30.1.2006 and
during interrogation, Upendra Singh recorded his
confessional statement on 31.1.2006 at 14.00 hours at
Barun Police Station.
36. In the confessional statement, Upendra Singh
accepted that he along with other appellants and two
unknown had gone to the booth of Radhe Shyam Gupta
and Raju Kumar Gupta on 12.1.2006 and on the same
day had made three ransom calls on telephone number
244103 at 10.25 A.M. from the booth of Radhey Shyam
Gupta and at 10.48 and 11.37 A.M. from inside the
residence of Raju Kumar Gupta. It also appears from the
confessional statement that after seizure of the telephone
booth of Arvind Kumar Singh and Raju Kumar Gupta on
24.1.2006, Upendra Singh became apprehensive of his
arrest and instructed Yogendra Singh to kill the victim boy
and dispose of the dead body. It further appears from the
confessional statement that two days prior to the
45
recording of the confessional statement, Upendra Singh
was informed by Yogendra Singh that with the help of
local liner the victim boy has been killed and his dead
body has been kept in a gunny bag and thrown in a dry
well near a temple located in a field situate on the western
side of the road in village Barain. Having recorded the
confessional statement of Appellant Upendra Singh, the
Investigating Officer, P.W.- 11/10 along with Upendra
Singh proceeded to Village Barain and located the dry
well in a field near the temple on the western side of the
road and recovered the dead body on 31.1.2006 at 18.30
hours in presence of P.W. 8/9, Chandan Kumar, cousin of
the informant and Jag Narayan Choudhary, as foul smell
was emanating therefrom. From the post-mortem report
as also from the evidence of Dr. Shyam Narayan Sahu,
P.W.-10 and Dr. Devendra Kumar, P.W.-8, who were the
members of the team of doctors who conducted autopsy
on the dead body of victim Tej Pratap, it is evident that he
was strangulated to death as there was finger-tip pressure
mark on left side of his wind pipe in front of neck leading
to cardiac respiratory failure on account of asphyxia.
Having recovered the dead body, the Investigating Officer
produced both M/S Arvind Kumar Singh and Mukesh
Kumar Gupta, P.W.-9/11 before Sri Ratan Kumar, P.W.-
12, the Judicial Magistrate for recording their statement
46
under Section 164 Cr. P.C., which was recorded on
2.2.2006 in which Arvind Kumar Singh confirmed the fact
that he had exchanged his SIM Card with Raju Kumar
Gupta on the basis of which Raju Kumar Gupta had
established telephone booth with number 9431135489,
which was managed by Mukesh Kumar Gupta. Mukesh
Kumar Gupta in his statement under Section 164 Cr.P.C.
also confirmed the fact that on 12.1.2006, appellants had
come to his booth looking for his uncle and had gone
inside the residence of his uncle wherefrom they made two
calls on telephone number 244103 at 10.48 and 11.37
A.M. in presence of his uncle after snapping the
connection of the telephone booth. The two 164 Cr.P.C.
statements were admitted in evidence without any
objection and were exhibits in both the trials. In Court
Arvind Kumar Singh has not been examined and Mukesh
Kumar Gupta, who has been examined as P.W.9 and 11 in
the two trials, has resiled from statement recorded under
Section 164 Cr.P.C. and has stated that he made the 164
Cr.P.C. statement on 2.2.2006 under police pressure and
duress as he was under police custody and under threat
of being made accused in the case. In this connection,
during argument, reliance was also placed on petition
dated 9.4.2006, Exhibit-A filed on behalf of Mukesh
Kumar Gupta before the Chief Judicial Magistrate,
47
Aurangabad.
37. The print out indicates that on 12.01.2006
two calls were made on telephone number 244103 from
mobile number 9431135489 of Arvind Kumar Singh at
10.48 and 11.37 A.M. It, however, does not appear from
the print out that the same has been proved as is required
under Section 65-B of the Evidence Act. Further, it does
not appear from the print out that the same bears any
certificate of the competent officer of the Telephone
Exchange wherefrom it has been obtained certifying the
correctness of the data indicated in the print out. From
the evidence of Investigating Officer as pointed out by
learned Additional Public Prosecutor in paragraph 14 of
the subsequent trial it appears that the print out was
obtained in original but for reasons best known to the
prosecution only photo copy thereof was produced during
trial, as such, we have ourselves examined the print outs
exhibited during the trial and have found that in the
earlier trial the photo copy of the print out was marked as
Exhibit-7 and in subsequent trial certified copy of the
photo copy was marked as exhibit. In the circumstances,
in absence of the original, that too without there being any
material to establish the conditions mentioned in Sub-
Section (2) of Section 65-B of the Evidence Act that the
computer wherefrom the print out has been obtained was
48
normally functioning, it shall not be safe to rely on the
print outs for connecting the appellants with the two calls
made from mobile telephone number 9431135489 on
12.01.2006 on telephone number 244103 at 10.48 and
11.37 A.M. The evidence of the Investigating Officer and
Sunil Kumar Singh only indicate that in compliance of the
orders of the Superintendent of Police print out was
obtained from the staff of the service provider, in the
circumstances their evidence cannot be taken as
secondary evidence in terms of Sub-Section (2) of Section
63 of the Evidence Act to prove the correctness of the
contents of the print out as evidence certifying the
correctness of the contents of the print out can only be
furnished by those who are operating the computer and
had knowledge about its functioning. Even assuming the
contents of the print out to have been legally proved the
same will connect Arvind Kumar Singh with the two
ransom calls made from Mobile No. 9431135489 on
12.01.2006 on Telephone No. 244103 at 10.48 and 11.37
A.M. and not these appellants.
38. Reliance on the confessional statement of the
appellant, Upendra Singh and Yogendra Singh recorded in
police custody at Barun Police Station and Aurangabad
Police Station on 31.01.2006 at 2 P.M. and 5.07.2006 at
16 hours respectively cannot be placed as the two
49
statements do not stand to the test of the provisions of
Sections 25 and 26 of the Evidence Act which mandate
that statements recorded in police custody cannot be used
and proved against those who have recorded such
statement, as such, statements are presumed to have
been made in the circumstances enumerated in Section
24 of the Evidence Act and cannot be relied against the
maker or any other person. Further, even recovery of the
dead body at the instance of Upendra Singh is not
admissible in terms of Section 27 of the Evidence Act as
from his confessional statement, it does not appear that
he himself had concealed the dead body in the dry well.
Upendra Singh derived knowledge about the concealment
of the dead body in the well from Yogendra Singh. Even
from the evidence of the Investigating Officer vide
paragraph 24 in the subsequent trial, it is evident that he
could reach near the well and recover the dead body as
foul smell was emanating therefrom. The evidence of P.W.-
2, Susil Singh (Paragraph-1), P.W.-3, Bhim Singh
(Paragraph-2), P.W.-5, Arjun Singh (Paragraph-1), P.W.-7,
informant (paragraph-3) that the dead body of Tej Pratap
was recovered from the well at the instance of Upendra
Singh is to be ignored in the light of the aforesaid evidence
of Investigating Officer in paragraph-24.
39. The submission of learned Additional Public
50
Prosecutor that the affirmative answer of appellant
Kameshwar Singh while replying the question nos. 4 and
5 put to him during his examination under Section 313 of
the Code of Criminal Procedure shall bind the other
appellants also, is misconceived as the questions which
have been put to Kameshwar Singh are based on
materials which are inadmissible in evidence, as has been
discussed above. In the circumstances, the answer given
by Kameshwar Singh to those questions shall neither bind
Kameshwar Singh nor the other appellants.
40. Other submission of the learned Additional
Public Prosecutor that these appellants had hatched
conspiracy to kidnap Tej Pratap as they were seen by
P.W.-3, Bhim Singh in Akash Ganga Hotel two days prior
to the occurrence and on the date of occurrence by P.Ws.
1,2,3,6 and 7 in front of the Branch gate at around 9-9.30
A.M. also appears to be misconceived as there is no
further legal admissible evidence to connect the appellants
with the kidnapping of the victim boy.
41. Further reliance placed by learned Additional
Public Prosecutor over the 164 Cr.P.C. statement of Arvind
Kumar Singh and Mukesh Kumar Gupta is also
misconceived as such statement cannot be relied upon as
substantive piece of evidence to bring home the charge
unless the person who has recorded his 164 Cr.P.C.
51
statement again appears in Court and reiterates the same
statement in his Examination-in-Chief and successfully
undergoes the test of cross-examination. In the present
case, Arvind Kumar Singh never appeared for his
examination and cross-examination in court, Mukesh
Kumar Gupta examined as P.W.-9 and 11 categorically
deposed in court that he made his statement under
Section 164 Cr.P.C. under police pressure and duress. In
the circumstances, rightly it was submitted by the counsel
for the appellants that no reliance can be placed over the
164 Cr.P.C. statement of Arvind Kumar Singh and
Mukesh Kumar Gupta.
42. Seizure-memo dated 24.01.2006, Exhibits-6
and 6/1 can also not be relied upon to establish seizure of
the SIM Card and router machine of the two telephone
booths as neither the officers who effected the seizure nor
the witnesses in whose presence seizure was made were
examined as a witness in the court to vouchsafe about the
factum of seizure. In the circumstances, no reliance
whatsoever, can be placed over the two seizure-lists.
43. Reliance placed by the counsel for the
informant over the evidence of P.Ws. 1,2,3,6 and 7 to
establish that these appellants had hatched conspiracy to
kidnap Tej Pratap appears to be misconceived as no such
case was ever made out by these witnesses before
52
Investigating Officer and further there is no admissible
evidence to connect the appellants with the kidnapping of
the victim boy. Reliance placed by learned counsel for the
informant over the judgment of the Hon’ble Supreme
Court in the case of State of Maharashtra Vs. Damu
Gopinath Shinde and others (Supra) also appears to be
misconceived as in the said judgment reliance was placed
on a confessional statement which was recorded by a
Judicial Magistrate and in support of the confession the
Magistrate was examined as a witness but in the present
case the two confessional statements having been
recorded by the police is inadmissible in view of the
provisions contained in Sections 24,25 and 26 of the
Evidence Act, as such, no reliance whatsoever can be
placed on the two confessional statements.
44. Submission of the learned counsel for the
informant about the acceptance of identification of
appellants other than Raghubir Singh made in court after
more than one year of the occurrence also cannot be
accepted as from the evidence of P.Ws. 2,3,5,6 and 7 it is
evident that they had opportunity to see them earlier but
they never informed the police that they had seen the
culprits and can identify them. In the circumstances,
reliance on the identification made in court cannot be
placed.
53
45. In the instant case, the Investigating Officer
should have either examined the Incharge of the computer
wherefrom the print out was obtained or should have
obtained certificate over the print outs, as is required in
terms of Section 65-B of the Evidence Act. He should also
have included the two Officers who effected the seizure
along with the two witnesses who were present at the
time of seizure as charge-sheet witness. He should also
have included Arvind Kumar Singh as a charge-sheet
witness so as to establish in court that Arvind Kumar
Singh exchanged his SIM Card with Raju Kumar Gupta.
The Investigating Officer having not included and
examined the aforesaid witnesses has allowed legally
admissible evidence to disappear and has thereby
massacred the prosecution case. Learned Additional
Public Prosecutor with reference to the observations and
directions of the Hon’ble Supreme Court in the case of
Zahira Habibulla H. Sheikh and another Versus State of
Gujarat and others, reported in 2004 Supreme Court
Cases (Cri) 999, paragraphs 22,35,54 and 56 orally
submitted that if the State’s machinery fails to protect
citizen’s life, liberties and property and the investigation is
concluded in a manner to help the accused persons, it is
but appropriate that this Court should step in to prevent
undue miscarriage of justice as it is as much the duty of
54
the prosecutor as of the Court to ensure that full and
material facts are brought on record and submitted that
direction may be issued to examine the Incharge of the
computer wherefrom print outs were taken as also to
examine Arvind Kumar Singh and the officers and the
witnesses who effected seizure of the telephone booth.
Such oral prayer has been made after conclusion of the
argument by the counsel for the appellants. In the
circumstances, we are not inclined to allow such prayer.
46. In view of our discussion above it is evident
that there is no legally admissible material available on
record by which the appellants can be connected with the
kidnapping of the victim boy Tej Pratap on 30.12.2005
and the ransom calls received on Telephone No. 244103
on 05.01.2006, 09.01.2006 and 12.01.2006 and
subsequent thereto nor there is any legally admissible
material to connect the appellants with the recovery of the
dead body of Tej Pratap. In the circumstances, this Court
has no option but to grant the appellants the benefit of
doubt of the charges levelled against them.
47. In the result, the two references (Death
Reference Case No. 4 of 2007 and Death Reference Case
No. 12 of 2008) are answered in negative; both the
judgment and order dated 6/7.06.2007, passed by 1st
Additional Sessions Judge, Aurangabad in Sessions Trial
55
No. 302 of 2006/ 76 of 2006 as also the Judgment and
Order dated 25/28.06.2008, passed by Additional
Sessions Judge, Fast Track Court No.IV, Aurangabad
(Bihar) in Sessions Trial Nos. 319 of 2007/ 126 of 2007,
(2). 351 of 2007 /186 of 2007 and (3). 99 of 2007/ 194 of
2007 are set aside, Cr. Appeal Nos.836 of 2007, 887 of
2007, 960 of 2007, 1006 of 2007and 782 of 2008 are
allowed, and the appellants are acquitted of the charges
levelled against them and appellants, namely, Manoj
Kumar Singh, Yogendra Singh, Raju Kumar Gupta,
Kameshwar Singh, Upendra Singh and Anuj Singh are
directed to be set free, if not required in any other case.
Appellant Raghubir Singh is directed to be discharged
from the liability of his bail bond.
(V.N.Sinha,J.)
C.M.Prasad,J. I agree
(C.M.Prasad,J.)
Patna High Court, Patna.
Dated the 4th day of March, 2009.
P.K.P./Rajesh/A.F.R.