1 CRIMINAL APPEAL No.1470 OF 2007 - - - - Against the judgment of conviction and order of sentence dated 6.11.2007 passed by the Additional Sessions Judge, Fast Track Court III, Patna, in Sessions Trial Case No. 647 of 2002/54 of 2006 arising out of Bihta P.S.Case No. 145 of 2001,G.R. No. 796 of 2001. - - - - AJAI KUMAR YADAV @ SUDHIR KUMAR … … Appellant Versus THE STATE OF BIHAR … … Respondents For the appellant: Shri Yogesh Chandra Verma, Senior Adv. Shri Naresh Das, Advocate For the State: Shri Ashwini Kumar Sinha, Addl. P.P. P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA THE HON'BLE MR. JUSTICE RAKESH KUMAR - - - - Dharnidhar Jha & Rakesh Kumar,JJ. - We have heard Shri Yogesh Chandra Verma, learned Senior counsel appearing for the appellant and Shri Ashwini Kumar Sinha, learned Additional Public Prosecutor for the State. 2. The sole appellant has challenged the judgment of conviction and order of sentence dated 6.11.2007 passed by the learned Additional Sessions Judge, Fast Track Court-III, Patna, in Sessions Trial Case No. 647 of 2002/54 of 2006 by which the appellant was convicted under Sections 302 and 201 of the Indian Penal Code and sentenced to rigorous imprisonment for life under Section 302 and rigorous imprisonment for five years under Section 201, respectively, of the Indian Penal Code. 3. Short facts of the case are that on 4.6.2001 at about 6.45 A.M. the informant Baidya Nath Singh(P.W. 1) 2 gave his fardbeyan to S.I. B.Bhushan of Bihta Police Station disclosing that the appellant Ajay Kumar Yadav was the servant of his brother Brajnandan Singh( P.W. 6) and he was looking after his cattle. He further disclosed that due to some small matter the appellant was scolded. The appellant was also slapped for his rude behaviour and due to such assault the appellant had killed the deceased Govinda aged about 5 years by way of throttling and he also concealed the dead body in the cow shed. On 2.6.2001 Govinda was at his house up to 3.30-4 P.M. Thereafter, he was not seen in his house and a search was also made by the family members as also by the neighbours in nearby colonies but he could not be traced. Again, on 3.6.2001 the search was made in nearby villages and Bihta Bazar and an information was also given in the Police Station. The informant P.W.1 further stated that on 3.6.2001 while he and his neighbours were searching Govinda, appellant Ajay Kumar Yadav told that he had got him disappeared by chanting mantra and he could also get him back by the „Mantra‟. On this information, on 4.6.2001 at 4 A.M. the informant went to the police Station and gave such information to the Officer-in-charge of the Police Station and thereafter the appellant in his presence as well as in presence of the villagers confessed his guilt and disclosed about the dead body and thereafter the dead body was recovered. It was alleged in the 3 fardbeyan that the appellant with intention to kill Govinda had killed him by throttling and thereafter with a view to save himself from the crime he concealed the dead body in a bag. On the basis of such fardbeyan, the F.I.R., vide Bihta P.S.Case No.145 of 2001, was registered on 4.6.2001 at about 10 A.M. It may be made clear that as per the F.I.R. the information was received in the Police Station on 4.6.2001 at 10 A.M. and F.I.R. further discloses that the same was registered at 10 A.M. on the same day. 4. After the disclosure statement of the appellant the dead body was recovered on the same day. An inquest report was prepared on the dead body of the deceased by the I.O. and subsequently the dead body was sent for post-mortem examination and the appellant was taken into custody. The police after recording the F.I.R. took up investigation of the case and after completion thereof finally submitted charge sheet. The case was subsequently committed to the court of Sessions and after framing of the charges the appellant was put on trial which ended in his conviction and sentence as indicated at the very out set of the present appeal. 5. To prove its case, the prosecution examined altogether seven witnesses. Baidya Nath Singh, who was one of the uncles of the deceases, was examined as P.W.1. He is the informant of the case. P.W. 7 is Dr. Narendra Kumar Singh who held autopsy on the dead body 4 of the deceased Govinda and prepared Post-Mortem Examination report,Ext.2. P.Ws. 3,4 and 6 are none else but uncles of deceased and brothers of informant, P.W.1. In the present case, the Investigation Officer has not been examined. P.W.1, who is the informant of the case as also the star witness of the prosecution has though supported the prosecution case but in his cross examination has categorically stated that before lodging of the present case he had also informed the police but while giving such information he had not named any one as suspect. In examination-in-chief P.W.1 stated that before the Police the appellant confessed that he had throttled the boy and kept the dead body beneath the straw in the cow shed. Thereafter police recovered the boy ( dead body) from there. 6. In cross examination P.W.1 stated that the appellant was working in the house of Brij Nandan Singh ( P.W. 6) since one year. He further stated that Brij Nandan Singh ( P.W. 6) and he ( P.W. 1) reside separately in their houses. P.W.1 specifically stated in his cross examination that on the date of occurrence Brij Nandan Singh ( P.W. 6) and his wife were not in their house and even on the date of recovery of the dead body they were not in their house whereas Brij Nandan Singh ( P.W. 6) in his deposition has stated that the dead body was recovered in his presence and 5 after recovery the Officer-in-charge arrested the appellant. 7. P.W.1 in his further cross examination at page 10 of the Paper Book stated that at the time of recovery of dead body there were none in the cow shed. He states that after the recovery of dead body police did not record statement of any witness who were present there. The police had written down statements of Ajay Kumar( appellant). 8. P.W. 2 Upendra Kumar states that the appellant confessed his guilt. In his cross examination he stated that on being asked by the police the appellant admitted that dead body was recovered from the Bhusa Ghar( straw store room) which was an open place. P.W. 2 is also a witness to inquest report and he proved his signature over it. P.W.2 is categoric on the point that F.I.R. was lodged after the recovery of the dead body and F.I.R. was lodged on the statement of Brij Nandan Singh( P.W.6). After the F.I.R. was lodged the appellant was arrested. 9. P.W. 3 Surendra Singh is almost similar to P.W.2, however, in his cross examination he states that while the appellant told that he had concealed the dead body of Govinda in the cow shed, police was present. 10. P.W. 4 Prem Kumar Singh deposed that the deceased was his nephew. The appellant confessed his 6 guilt before the police. He further stated that dead body was recovered with the help of police. 11. P.W.5 Mukesh Kumar Singh during trial stated that from 2.6.2001 the boy Govinda was missing. On 4.6.2001 at about 4.00 A.M. when pressure was put on the servant Ajay (Appellant) he said that by magic he had got the Govinda disappeared and by magic he will get him back. In the meanwhile police arrived and scolded the appellant only then he admitted his guilt and dead body could be recovered. P.W.5 is a witness to the inquest report. 12. The evidence of P.W.6, Brij Nandan Singh particularly at para 2 at page 21 of the paper book indicates that though P.W.1 Baidyanath Singh who is informant, has deposed that either on the date of occurrence or on the date of recovery of dead body Brij Nandan Singh, P.W.6 was not in his house. Brij Nandan Singh, P.W.6 is affirmative on the point that dead body was recovered in his presence. The evidence of Dr. Narendra Kumar Singh ( P.W.7) who had conducted autopsy on the dead body indicates that he found ante- mortem injuries indicating throttling as cause of death. Perusal and examination of evidence, discussed above, makes it clear that there are serious variances and inconsistency. Besides, non-examination of the Investigating Officer in the facts and circumstances of the present case has highly prejudiced the defence of 7 the appellant. In absence of the Investigating Officer many circumstances remained behind the curtain. In the fardbeyan though the informant ( P.W.1) stated that on the pressure put on the appellant he confessed his guilt, in his examination before the court in a well designed manner he did not whisper on the point of pressure being administered on the appellant. Some of the witnesses stated that the dead body was recovered from the cow shed, whereas some has stated that it was Bhusa Ghar(straw Storage Room). Similarly witnesses have deposed that after the disclosure of appellant that by chanting Mantra he got the boy disappeared and by the Mantra he could get him back on 4.6.2001 they went to Police Station and lodged a case and thereafter police arrived, put pressure, appellant confessed his guilt and dead body was recovered by him. All these points could have been got clarified, had the Investigating Officer been examined. Accordingly, we are of the view that non-examination of the Investigating Officer has seriously prejudiced the case of the appellant. 13. During the trial father and mother of deceased Govinda have not come to be examined as witnesses. Non- examination of father and mother as witness creates serious doubt on the credibility of prosecution case. It is also evident that most of the witnesses who have come forward in support of the prosecution case are 8 uncles of the deceased. In support of his stand learned Senior Counsel had taken us to the parentage of witnesses particularly P.W.1 Baidyanath Singh, P.W.3 Surendra Singh, P.W.4 Prem Kumar Singh and P.W.6 Brij Nandan Singh. It is evident that P.Ws 1,3,4,and 6 are sons of Late Ram Chandra Singh and deceased was nephew of P.Ws.1,3,4 and 6. In the facts and circumstances of the case particularly where four uncles have come forward in support of a case of murder of their nephew, non-examination of either father or mother of the deceased creates serious doubt on the prosecution case. 14. Though, the prosecution with a view to prove the case of confession, i.e., extra judicial confession of the appellant, has examined a few witnesses, besides the informant, their evidences do not appear to lend much credence. The Court is of the view that since in the fardbeyan itself the informant had categorically stated that on being pressurized the appellant had confessed his guilt, the said so-called confession could not be rendered as admissible due to the simple reason that the said confession was extracted by way of coercion and threat. This fact is further corroborated from the evidence of P.W.5 that the appellant was pressurized and police scolded him then he admitted his guilt. 15. So far as application of Section 27 of the Indian Evidence Act in the present case is concerned, 9 we are of the view that, admittedly, the appellant while making such disclosure was not in custody of the police and without being in custody of the police, the disclosure leading to recovery of the dead body of the deceased may not be considered as recovery under Section 27 of the Evidence Act and the prosecution may not put reliance either on such confession or recovery. 16. It is further evident from perusal of the inquest report, particularly, columns 1 and 3 that the recovery was made at about 7 A.M. on 4.6.2001. Column No.1 further indicates the case number, i.e., Bihta P.S.Case No.145 of 2001. It is an admitted fact that in the Police Station, an information of the occurrence was received at 10 A.M. on 4.6.2001 and the F.I.R.(Ext.2) was lodged at 10 A.M. on 4.6.2001. In any event, perusal of inquest report, though not exhibited, clearly indicates that the recovery of the dead body was made prior to 7 A.M. and inquest was also prepared at 7 A.M. It categorically clarifies that either confession or recovery was made prior to the registration of the F.I.R. as well as prior to the arrest of the appellant by the police and, as such, in any event, such confession/disclosure leading to recovery of the dead body in the present case has got no relevancy, particularly, to prove the guilt of the appellant. 10 17. It is evident from the statement of the appellant recorded under section 313 of the Cr.P.C. by the trial court that the appellant was not even suggested that he had made any disclosure statement leading to recovery of the dead body or his confession. It need not be elaborated that in a case if accused is not explained relating to the evidence collected against him at the stage of recording statement under Section 313 Cr.P.C., such evidence may not be used against him at the time of passing final judgment. We may refer to a judgment of the Hon‟ble Supreme Court reported in A.I.R. 1984 S.C. 1622 Sharad Birdhichand Sarda Vs. State of Maharashtra. In paragraph 142 the Hon‟ble Supreme Court has held as follows: “Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz., circumstances Nos.4,5,6,8,9,11,12,13,16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468 this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authoritics of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra, ( 1976) 1 SCC 438 : (AIR 1976 SC 557) this Court held thus: “The fact that the appellant was said to be absconding not having been put to him under Section 342, Criminal Procedure Code, could not be used against him.” 11 18. In view of the facts and circumstances as well as the evidence discussed hereinabove, we are of the view that the prosecution has not proved its case beyond all reasonable doubt and, as such, the judgment of conviction and order of sentence are liable to be set aside. Accordingly, the judgment of conviction and order of sentence dated 6.11.2007 passed by the learned Additional Sessions Judge, Fast Track Court-III, Patna, are hereby set aside. 19. In the result, the appeal is allowed. The appellant is acquitted and it is hereby directed that the appellant, who is in custody, shall be released forthwith, if not wanted in any other case. ( Dharnidhar Jha, J.) ( Rakesh Kumar, J.) Patna High Court The 10th February,2010 Kanth/N.A.F.R.