Ritesh Kumar @ Vikas Kumar @ Vikash @ … vs The State Of Bihar on 16 January, 2025

0
158

Patna High Court

Ritesh Kumar @ Vikas Kumar @ Vikash @ … vs The State Of Bihar on 16 January, 2025

Author: Rajeev Ranjan Prasad

Bench: Rajeev Ranjan Prasad

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.822 of 2021
       Arising Out of PS. Case No.-457 Year-2015 Thana- BIHAR District- Nalanda
 ======================================================
 Vivek Kumar @ Vivek @ Modi @ Ram Vivek Kumar, age 35 years, Male,
 Son of Nand Kishore Prasad, resident of Village- Majitpur/ Majidpur, P.S.-
 Manpur, Post- Itaura, District- Nalanda, Bihar, Pin- 803107
                                                              ... ... Appellant/s
                                     Versus
 The State of Bihar
                                                           ... ... Respondent/s
 ======================================================
                                      with
                 CRIMINAL APPEAL (DB) No. 99 of 2022
       Arising Out of PS. Case No.-457 Year-2015 Thana- BIHAR District- Nalanda
 ======================================================
 Ritesh Kumar @ Vikas Kumar @ Vikas @ Ritesh, Male, aged about 24 years,
 S/O Mukesh Kumar, Resident Of Village - Chandi, P.S. - Ariari, District -
 Sheikhpura.
                                                        ... ... Appellant/s
                               Versus
 The State of Bihar
                                                     ... ... Respondent/s
 ======================================================
 Appearance :
 (In CRIMINAL APPEAL (DB) No. 822 of 2021)
 For the Appellant/s :     Mr. Ajay Kumar Thakur, Advocate
                           Mr. Birendra Kumar, Advocate
 For the Informant   :     Mr. Gaurav Prakash, Advocate
 For the State/s     :     Ms. Shashi Bala Verma, APP
 (In CRIMINAL APPEAL (DB) No. 99 of 2022)
 For the Appellant/s :     Mr. Kaushal Kumar, Advocate
 For the Informant   :     Mr. Gaurav Prakash, Advocate
 For the State/s     :     Ms. Shashi Bala Verma, APP
 ======================================================
 CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
         and
         HONOURABLE MR. JUSTICE RAMESH CHAND
         MALVIYA
                     ORAL JUDGMENT
 (Per: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA)

Date: 16-01-2025

                 Heard Mr. Ajay Kumar Thakur learned, counsel for

the appellant in Cr. Appeal (DB) No. 822 of 2021 assisted by Mr.

Birendra Kumar, Mr. Kaushal Kumar, learned counsel for the

appellant in Cr. Appeal (DB) No. 99 of 2022, Mr. Gaurav Prakash,
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           2/60




      learned counsel for the informant and Ms. Shashi Bala Verma

      learned APP for the State.

                         2. Both appeals are arising out of the judgment of

      conviction dated 03.11.2021 (hereinafter referred to as the

      'impugned judgment') and the order of sentence dated 20.11.2021

      (hereinafter referred to as the 'impugned order') passed by learned

      Additional Sessions Judge-III, Nalanda at Bihar Sharif (hereinafter

      referred to as the 'learned trial Court') in Session Trial No. 337 of

      2016 arising out of Bihar P.S Case No. 457 of 2015. By the

      impugned judgment, the appellant, namely, Vivek Kumar @ Vivek

      @ Modi @ Ram Vivek Kumar has been convicted for the offence

      punishable under Sections 302/120B of the Indian Penal Code

      (hereinafter referred to as 'IPC') to undergo life imprisonment and a

      fine of Rs. 25,000 and in default of payment of fine he shall further

      undergo imprisonment of another 3 months. In the said fine amount,

      Rs. 15,000 would be paid to the mother of the deceased. For the

      offence punishable under Sections 364A/120B of the IPC, he shall

      undergo life imprisonment and a fine of Rs. 25,000 and in default of

      payment of fine, he shall further undergo imprisonment of another 3

      months. In the said fine amount, Rs. 15,000 would be paid to the

      mother of the deceased. For the offence punishable under Sections

      201/120B of the IPC, he shall undergo rigorous imprisonment for
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           3/60




      seven years and a fine of Rs. 15,000 and in default of payment of

      fine, he shall undergo an imprisonment of another 3 months. In the

      said fine amount, Rs. 7,000 would be paid to the mother of the

      deceased. The appellant namely, Ritesh Kumar @ Vikas Kumar @

      Vikas @ Ritesh has been convicted for the offence punishable under

      Sections 302/120B of the Indian Penal Code (hereinafter referred to

      as 'IPC') to undergo life imprisonment and a fine of Rs. 25,000 and

      in default of payment of fine, he shall further undergo imprisonment

      of another 3 months. In the said fine amount, Rs. 15,000 would be

      paid to the mother of the deceased. For the offence punishable

      under Sections 364A/120B of the IPC, he shall undergo life

      imprisonment and a fine of Rs. 25,000 and in default of payment of

      fine, he shall further undergo imprisonment of another 3 months. In

      the said fine amount, Rs. 15,000 would be paid to the mother of the

      deceased. For the offence punishable under Sections 201/120B of

      the IPC, he shall undergo rigorous imprisonment for seven years

      and a fine of Rs. 15,000 and in default of payment of fine, he shall

      undergo an imprisonment of another 3 months. In the said fine

      amount, Rs. 7,000 would be paid to the mother of the deceased.

                         Prosecution Case

                         3. As per the prosecution story, the fardbeyan of the

      informant, PW-5 was recorded on 01.10.2015 at 4:45 PM by P.S.I.
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           4/60




      Jitendra Kumar of Bihar PS Case No. 457 of 2015 in which she

      alleged that in the morning of 01.10.2015 her son Ravi Kumar, aged

      14 years, had left home at around 7:30 in the morning to study at

      Cambridge School, Professor Colony but did not return. When she

      went to the school and asked the headmaster about the whereabouts

      of her son, she was told that the boy had not come to school. There

      were endeavors to search for the minor boy in the neighborhood

      area. She also called the relatives and asked but the boy was not

      found. All her efforts did not evoke results. She had a suspicion that

      on 28.09.2015 when her son Ravi and daughter Ananya were going

      to withdraw money from an ATM, Devanand got into a fight with

      her son and threatened him. Also, about 20 days ago, two people

      were pressurizing her brother in law Rajiv Kumar Sharma to send

      two persons abroad but her husband refused to help him to send

      anyone abroad as he did not have a visa. Her brother-in-law had

      already taken money from those people and was threatening her

      husband that he would face the dire consequences for not sending

      people abroad. In the end, the informant stated that she was

      suspicious that her son Ravi Kumar had been kidnapped by Rajiv

      Kumar Sharma and Devanand along with some other people and

      they are demanding money from mobile number 7321072463.

                         4. Pursuant to the first information report of the
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           5/60




      informant, the investigating officer, police of Bihar PS registered

      the case bearing PS. Case No. 457 of 2015 under Sections 364A,

      363, 368, 302, 201 and 120B of the IPC and set the penal law in

      motion. An eight member team was formed. The informant

      immediately furnished the details of telephone numbers to the

      police of the Bihar PS about the demand of ransom. The

      investigating officer recorded the statements of witnesses

      acquainted with the informant and the victim Ravi Kumar. The

      police of Bihar police station immediately swung into action and

      picked up one of the accused for investigation.

                         5. During the custodial interrogation the accused

      Vivek Kumar @ Modi confessed about the crime and stated that he

      accompanied with other co-accused persons Vikas Kumar @ Mali,

      Suraj Kumar, Ritesh Kumar, Munna Kumar, kidnapped and

      abducted the victim Ravi Kumar and committed his murder. The

      Investigating Officer also apprehended the other accused persons

      from other places for the sake of investigation. The Investigating

      Officer recovered the dead body and the 1.5 metre long black-

      colored wire from the place where the dead body of the boy was

      found The place was shown at the instance of the accused persons

      who willingly showed the place where they disposed off the dead

      body of victim Ravi Kumar. The accused persons led the police to
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           6/60




      the spot located near the NH-31, 20 meters away from the road

      within the vicinity of village Chakrasalpur on 05.10.2015 at about

      3:30 AM. The dead body was recognized which was kept covered

      from the dried leaves and branches of the tree and the body was foul

      smelling. The police dealt with the mortal remains of victim Ravi

      Kumar, prepared the inquest report and referred the dead body to

      the Sadar Hospital of Bihar Sharif, Nalanda for postmortem. The

      concerned doctors conducted the postmortem and opined that the

      victim Ravi Kumar breathed his last prior to 36 to 72 hours.

                         6. During investigation it transpires from the

      confessional statements of accused persons that they were involved

      in the mission of kidnapping the victim Ravi Kumar. It was also

      revealed from the perusal of the statement that Suraj Kumar picked

      up the victim Ravi Kumar on the motorcycle under the pretext that

      he will take him to Disney-land.

                         7. Another accused joined him as pillion Rider and

      vanished from the spot accompanied by the minor boy.

      Investigating Officer has also visited various places where from the

      tower location has been found. First he collected the CDR from the

      office of SP, Nalanda and then the Investigating Officer also

      recovered the wire from which the victim was alleged to be

      murdered. The entire process from the recovery of the dead body to
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           7/60




      what happened was video-graphed and was recovered in front of the

      witness. A seizure list of mobile sets recovered from the medical

      hall of Vivek @ Modi was also prepared during the course of

      investigation. After completion of Investigation, the Investigating

      Officer submitted the charge sheet under Sections 364(A), 363, 368,

      302, 201 along with 120B of the IPC before the Learned Chief

      Judicial Magistrate against the eight accused persons. He also filed

      a separate charge sheet against the child in conflict with law before

      the concerned Juvenile Justice Board, Bihar Sharif Nalanda for the

      trial within the ambit of law.

                         8. After submission of charge-sheet under Sections

      364A, 363, 368, 302, 201 read with 120B of the IPC and report of

      Investigation under Section 173 of Cr.P.C, the Learned Chief

      Judicial Magistrate verified the charges pitted against accused

      persons. It transpired that charges levelled against the accused for

      the commission of crime of kidnapping and murder for ransom after

      a criminal conspiracy is triable exclusively by the Court of

      Sessions.     The      Learned      Magistrate,        Bihar   Sharif,   Nalanda

      committed the case of Bihar PS case No. 457 of 2015 in respect of

      GR. 3903 of 2015 to the Court of Sessions, Nalanda for trial of the

      accused persons within the ambit of law vide Commitment order

      dated 15.06.2016.
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           8/60




                         9. Taking into consideration the nature of oral and

      circumstantial evidence produced on record and the gravity of the

      allegations nurtured on behalf of the prosecution the trial Court

      recorded the statement of the accused prescribed under Section 313

      of Cr.P.C to afford them an opportunity to explain the incriminating

      circumstances brought on record against them. But the accused

      persons in their reply vociferously opposed the incriminating

      circumstances and denied the allegations. The accused persons

      claim their false implications in the case. Defence has not produced

      any oral evidence rather filed some documentary evidences.

                         Analysis of Prosecution Evidences

                         10. On behalf of the prosecution, altogether twelve

      witnesses were examined and sixteen documents were exhibited in

      course of trial which are being shown here-under in a tabular form:-

                   PW-1      Sanjay Kumar
                   PW-2      Chandra Bhusan Prasad
                   PW-3      Sunil Kumar Rajbanshi
                   PW-4      Vimla Devi
                   PW-5      Priti Devi (Informant mother of victim)
                   PW-6      Kamdeo Sharma
                   PW-7      Sunil Kumar Nirjhar (Investigating
                             Officer)
                   PW-8      Dr. Anup Kumar
                   PW-9      Rakesh Kumar(Investigating Officer)
                  PW-10 Dr. Faisal Arshad (Medical Officer)
                  PW-11 Jitendra Kumar (Investigating Officer)
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           9/60




                  PW-12 Md. Javed Akhtar (Nodal Officer
                             Bharti Airtel Ltd. at Patna)

                         List of Exhibits


                   Ext-1      Signature of informant Preeti Devi
                  Ext-2       Writing and signature of Nitish Kumar

                 Ext- 2/1 Signature of Nitish Kumar on his own
                              confessional statement
                  Ext-3       Writing and signature of Vikas Kumar
                              on confessional statement and
                              Signature of Sunil Kumar
                  Ext-3/1 Signature of Vikas Kumar @ Mali
                  Ext-3/2 Writing and Signature of Ritesh Kumar
                   Ext-4      Signature of Ritesh Kumar on
                              confessional statement
                  Ext-5       Writing and signature of Suraj Kumar
                              on confessional statement
                 Ext-5 /1 Signature of Suraj Kumar on
                              confessional statement
                 Ext-5 /2 Writing and signature of Rakesh
                              Kumar on Arnav Kumar's confessional
                              statement
                   Ext-6      Signature of Arnav Kumar on
                              confessional statement
                   Ext-7      Post Mortem Report
                   Ext-8      Confessional statement of Vivek
                              Kumar @ Modi
                   Ext-9      Letter of SP vide Letter No 236/2016
                  Ext-10 Prapatra IV
                  Ext-11 CDR
                  Ext-12 Seizure list of mobile sets
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           10/60




                  Ext-13 Seizure list of motorcycle
                  Ext-14 Charge Sheet No 448/2015
                  Ext-15 CAF (with objection)
                  Ext-16 Inquest Report
                 Ext-16/1 Signature of Ramdeo Sharma on
                              inquest report
                 Ext-16/2 Signature of Ganesh Sharma on
                              inquest report

                  Documentary Evidence on behalf of Defence


                  Ext- A Deposition of Vimla Devi (vide JJB
                              case no 191 of 2015)
                 Ext- A/1 Deposition of Preeti Devi
                 Ext- A/2 Deposition of Archana Sharma
                 Ext- A/3 Deposition of Kamdev Sharma
                 Ext- A/4 Deposition of Chandra Bhushan Prasad
                 Ext- A/5 Deposition of Kishori Prasad
                 Ext- A/6 Deposition of Jitendra Kumar
                  Ext- B      Certified copy of the Judgment of JJB
                              case No. 191 of 2015

                         11. The prosecution story rests on the information

      given by the informant, PW-5 mother of the victim who stated in

      her examination-in-chief that on 01.10.2015, her son left for school

      at 7:30 AM to study at the Cambridge School located in Professor

      Colony and did not return. When he was leaving for school, a boy

      named Suraj Kumar was standing at the gate who lived on rent in

      the locality. On the same day at 12:27 PM, she received a call

      telling that her son had been kidnapped and demanded a ransom of
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           11/60




      70 lakh rupees failing which her son would be killed. After this, she

      first went to the school, where she asked the headmaster about her

      son. It was found that her son had not come to school. At 12:31 pm,

      her phone rang once again. After this she called her relatives and

      her husband who worked in Dubai. The son was 14 years old at the

      time of abduction. When he did not come, she gave a written

      complaint to the police station informing about both the phone

      numbers from which she received the calls and on this very basis

      the police started the investigation. In her FIR, PW-5 named two

      persons, Devanand and Rajiv Kumar Sharma on the basis of

      suspicion that they had kidnapped her son, but later on during the

      investigation they were found to be innocent. The dead body of her

      son was recovered after 4 days of the incident. She saw the dead

      body in the hospital.


                         11.i. In her cross-examination, she stated that

      whatever she had written in the FIR was only on the basis of mere

      suspicion, because 20 days ago her husband had a fight with Rajiv

      Kumar Sharma and a few days back some altercation took place

      between her son and Devanand when he was going to withdraw

      money from ATM. She did not know any of the accused and named

      the accused on the basis of what was told by one of the accused

      Suraj, who was her neighbor. She stated that she saw the dead body
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           12/60




      of her son 04.10.2015 at the hospital.


                         12. PW-1 and PW-2 namely Sanjiv Kumar and

      Chandra Bhushan Prasad Singh were brothers and joint owners of

      the Himgange Water Plant where allegedly the kidnapped child was

      kept. Both PW-1 and PW-2 have stated in their examination-in-

      chief that they did not know anything about the incident. They only

      knew one of the accused, Ritesh who used to work in their water

      plant.


                         13. PW-3 Sunil Kumar Rajvanshi was posted as

      Sub-Inspector at Bihar Police Station on 01.10.2015 and stated in

      his examination-in-chief that on the date of occurrence, he received

      information about the kidnapping of one boy from Pandit Nagar at

      7:30 in the morning. On the basis of this information, the SHO of

      the police station formed an investigation team consisting of Sub-

      Inspector Anup Kumar, Sub-Inspector Rakesh Kumar, Sub-

      Inspector Jitendra Kumar, Sub-Inspector Sunil Kumar Nirjhar and

      District Information Unit's Sub Inspector Alok Kumar. On the same

      day at 12:27 PM, the informant received a call informing her that

      her son had been kidnapped after which she informed the police

      about the same. PW-3 stated that they tracked the call details and

      location of the mobile which showed that the calls were made from
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           13/60




      several locations in the district of Nalanda. On investigation it was

      found that the alleged mobile number from which the call

      demanding ransom was made belonged to one Sanjiv Kumar, S/O

      Mevalal Rai who resided in Patna. Sanjiv Kumar informed the

      police that he had not been to Bihar Sharif in a long time and that he

      did not get any mobile number from Bihar Sharif. On further

      investigation, it was found that the shop from which the number had

      been taken was Vivek Medical Hall located in Binaulia under Bihar

      police station. After that the medical store was contacted and

      questioned, from where it was informed that a boy named Arnav

      who lived in a rented house located in Binaulia, had been given the

      particular SIM. Then police went to the rented house to interrogate

      Arnav, but he was found absconding.


                         13.i. Further, the medical hall was searched by the

      police and a number of fake SIMs were recovered from that place.

      The owner of the medical hall, one of the appellants Vivek Kumar

      @ Modi was taken to the police station for interrogation. He stated

      in his confessional statement that 2 months ago Vikas Kumar Mali,

      Suraj Kumar, Ritesh Kumar, Munna Kumar and he himself planned

      near Bihar Sharif railway station to kidnap someone. Munna Kumar

      said that he would arrange the weapon. Nitish Kumar said that he

      would arrange the vehicle. After that the appellant himself said he
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           14/60




      would arrange a fake sim. Vikas @ Mali said that they would both

      make arrangements to keep the victim. Then Suraj Kumar said that

      he knows a boy who was very rich and his father lived abroad.

      According to the plan, on 01.10.2015, Ravi Kumar left home for

      school at 7:30 AM, meanwhile on the way both Suraj Kumar and

      Rohit Kumar made the boy sit on a motorcycle because Suraj

      Kumar knew that boy very well. He had been living on rent next

      door. After that, on the pretext of showing Disneyland to Ravi

      Kumar, he took him to the room at the Himgange Water Plant near

      Disneyland. Vivek Kumar @ Modi, Vikas @ Mali, Munna Kumar,

      Ritesh Kumar, Nitish Kumar were already in that room. That room

      belonged to Ritesh Kumar who used to work in Himgange Water

      Plant. After kidnapping the boy, the accused demanded money from

      the informant from various places. Few of them were also watching

      the activity of the police as they started to feel that the police would

      catch them. Then on 02.10.2015 and on 03.10.2015, the deceased

      Ravi was taken to Deepnagar Chakrasalpur NH-31 and allegedly

      killed there. The dead body was thrown into the bush near NH-31.

      He was murdered by strangulating his neck. The dead body of Ravi

      Kumar was recovered on 04.10.2015. The wire by which the

      deceased was allegedly strangulated was also recovered from near

      the dead body. The entire process from the recovery of the dead
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           15/60




      body was video-graphed and the discovery of the dead body was

      made in front of witnesses.


                         13.ii. In his cross-examination, PW-3 stated that in

      the inquest report, there was a vague mention of the place of

      discovery of the dead body. The specific location of discovery was

      not mentioned.


                         14. PW-4 Vimla Devi is the aunt of the deceased

      victim. She stated in her examination-in-chief that she did not

      recognize any of the accused except Suraj and Vikas @ Ritesh. She

      further stated that since the accused were not given the ransom

      money, they killed the her nephew, the victim by putting a piece of

      cloth in his mouth and strangulating him to death with an electric

      wire.


                         14.i. In her cross examination, she stated that she got

      the information of the occurrence when she was in Arena. She went

      to Bihar Sharif to visit PW-5 Preeti Devi who told her about the

      occurrence. Later she said that she got the information about the

      occurrence from her brother, Kamdeo Sharma i.e. PW-6.


                         15. PW-6 Kamdeo Sharma is the father of the

      deceased. On the date of occurrence he was in Dubai, where he

      used to work. In his examination-in-chief he has stated that at 12
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           16/60




      PM on 01.10.2015 his wife informed him that in the morning Suraj

      Kumar came to pick up their son and that their son was kidnapped.

      He also stated that the accused had called him and demanded a

      ransom of 70 lakh rupees failing which they would kill their son. He

      came back from Dubai on 03.10.2015. The dead body of his son

      was recovered from near the road on NH-31. He also stated that he

      only recognized Suraj and Vivek who used to keep visiting their

      house. In his cross-examination PW-6 has stated that he got the

      information of the occurrence from his wife and neighbors.


                         16. PW-7 Sunil Kumar Nirjhar stated in his

      examination-in-chief that on the date of incident, he was posted as

      Sub Inspector in Bihar Police Station. A special team was formed

      for the discovery of the victim Ravi Kumar and for the arrest of the

      accused. The team members were SHO Bihar Rajesh Kumar

      Sharma, Sunil Kumar Rajvanshi, Anoop Kumar, Jitendra Kumar,

      Rakesh Kumar and Alok Kumar. Vivek Kumar @ Modi gave his

      confessional statement about the entire incident and named Vikas

      Kumar, Arnav Kumar, Munna Kumar, Ritesh Kuamr, Suraj Kumar

      and Nitish Kumar as co-accused. He confessed that Suraj Kumar

      informed them that the father of the kidnapped child was a wealthy

      man who used to work abroad. One of the accused, Munna Kumar

      agreed to arrange the weapon of crime, Nitish Kumar arranged the
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           17/60




      vehicle and Vikas Kumar made arrangement to keep the victim

      confined in a place. Vivek Kumar made arrangements for a false ID

      on the basis of which the alleged SIM card was taken which was to

      be used to make the ransom call. According to their conspiracy, on

      the morning of 01.10.2015, Suraj Kumar and Nitish Kumar took

      away the deceased victim Ravi Kumar under the pretext of visiting

      the Disneyland and confined him in a room in Himgange water

      plant. There Ravi Kumar was kept with his hands and feet tied. A

      ransom of 70 lakh rupees was demanded and after not getting the

      money, Ravi Kumar was killed and the dead body was disposed off

      in a bush on NH-31.


                         16.i. The informant received two calls on her mobile

      number-95045439203              from      7321072463   and   8873094952

      demanding ransom. The mobile tower locations of all the criminals

      were found at Araut, Bena Police Station, Musahari, Rupaspur,

      Mehnaur, Hosttungi, Thana Deepnagar, Patel Nagar, Nai Sarai, Aziz

      Ghat, Bihar Sharif, Shekhana and Binaulia respectively. The SIM

      was issued in the name of one Sanjeev Kumar, Village Mohalla

      North Mandiri Patna. On verification, it was found that that SIM

      card has been issued by Vivek Medical Hall, Banaulia Police

      Station, Bihar. On interrogation by the police team Vivek Kumar @

      Modi said that he had given the SIM card to Arnav Kumar. The
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           18/60




      mobile tower location of both the numbers were also found near

      Bihar Sharif. On 4.10.2015 the shop of SIM card seller Vivek

      Kumar @ Modi was searched and some incriminating documents

      and 9 mobiles were recovered.


                         16.ii. The body was recovered on the basis of the

      confessional statement of the accused-appellant and a black wire

      was recovered from near the dead body and its videography was

      also done. PW-7 further stated that he recorded the confessional

      statement of one of the accused Nitish Kumar on 4.10.2015 who

      admitted his involvement in the incident. On 4.10.2015 itself, at

      11:30 PM, the confessional statement of Vikas Kumar @ Mali was

      also taken by him and reduced into writing.


                         16.iii. In his cross-examination, PW-7 stated that

      only one team was constituted for discovery of the kidnapped

      victim. He stated that the FIR was not registered against unknown

      persons. He had no idea whether the person in whose name the SIM

      was issued was arrested or not. He stated that he saw the black wire

      at the place of discovery but was not aware if this incriminating

      material was produced before the trial Court. He was also not aware

      if the wire was sent for forensic investigation. He stated that the

      place from where the body was found was not an isolated place.
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           19/60




      There were houses at a distance of 100-200 meters.


                         16.iv. He further stated that the owner of the shop

      from where the SIM was taken was called for questioning two days

      after the police were informed of the incident. There was no paper

      proof that Nitish Kumar and Vikas Kumar lived in Himgange water

      plant, but they were arrested from there. He said that several

      incriminating articles were recovered from the SIM seller's shop but

      denied remembering whether the articles were seized or not. The

      witness categorically denied the suggestions that the confessional

      statement of the accused was not taken but he arrested the school

      going students, and Nitish and Vikas do not work in Himgange

      water plant but they are the students of intermediate. Further the

      witness stated that Vivek's shop was raided due to the statement of

      Sanjeev Kumar and technical reasons, Vivek had a shop of khichdi

      paros in which he also used to sell SIM etc. Some SIMs were found

      in the raids from Vivek's shop, he didn't remember how many

      articles were found there, the seizure list was made. The mobiles

      that were recovered were all old Mobiles.


                         17. PW-8 Anup Kumar stated in his examination-in-

      chief that on 04.10.2015 he was posted as Sub-Inspector at Bihar

      Police Station. On the said date, a team was formed for finding the
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           20/60




      kidnapped victim, Ravi Kumar and arresting the accused. The team

      members were SHO Bihar Rajesh Kumar Sharma, Sub-Inspector

      Sunil Kumar Rajvanshi, Sub-Inspector Sunil Kumar Nirhjar, Sub-

      Inspector Jitendra Kumar (Investigating Officer) and District

      Intelligence Unit's Sub-Inspector Alok Kumar. He stated that the

      investigating team was divided into two groups to carry out the

      investigation. He stated that his team searched the place around

      Himgange Water Plant where they interrogated one of the accused,

      Ritesh Kumar. The accused initially did not cooperate with them but

      then confessed that the kidnapped victim, Ravi Kumar was

      kidnapped for the purpose of demanding ransom from his father and

      that Vikas Kumar @ Mali, Arnav Kumar, Munna Kumar, Vivek

      Kumar @ Modi, Suraj Kumar and Nitish Kumar were involved in

      the conspiracy.


                         17.i. PW-8 further stated that the appellant Ritesh

      confessed that on getting the ransom money, he and the co-accused

      took Ravi Kumar to a place on NH-31 Chakrasalpur which was 50

      meters away from Dharmendra's Cement Shop and killed him there

      and hid his body in a bush on NH-31. The confessional statement of

      Ritesh was recorded by PW-8 himself. He stated that the other team

      of police reached the water plant with four of the kidnappers.

      Thereafter the entire team along with the arrested accused went to
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           21/60




      the house of accused Rohit Kumar in village Patuana and conducted

      a search of his house and arrested him from there. Thereafter the

      team went to village Gauragarh and arrested Suraj Kumar from his

      house. From there the team and all the accused went to N-31

      Chakrasalpur from where the dead body of the victim, Ravi Kumar

      was discovered. They found a black plastic wire about 1.5 meters

      long which was allegedly used to strangulate Ravi Kumar in order

      to kill him. He further stated that in the presence of two independent

      witnesses an inquest report was prepared and the black wire was

      seized by the Investigating Officer of the case, i.e., PW-11.


                         17.ii. In his cross-examination, PW-8 stated that he

      was not an eye-witness to the occurrence. He said he did not find

      any proof of the fact that Ritesh Kumar worked at Himgange Water

      Plant. He did not know who all were made accused in the instant

      case.


                         18. PW-9 Rakesh Kumar stated in his examination-

      in-chief that on 04.10.2015 he was posted as Sub Inspector of

      Police in Bihar Police Station. A boy Ravi Kumar was kidnapped on

      the same day dated 1.10.2015, and a case was registered under Case

      No. 457/15 in Bihar PS. A team was formed in which Jitendra

      Kumar (Investigating Officer), Sunil Kumar Rajvanshi, Sunil
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           22/60




      Kumar Nirjhar, Anoop Kumar and Alok Kumar were the members

      of the team. The team was divided into two parts. One team

      consisting of him and SI Anup Kumar along with the armed forces

      had gone towards West Nala Road, and the second team consisting

      of IO Jitendra Kumar, SI Sunil Kumar Rajvanshi, SI Sunil Kumar

      Nirjhar and SI Alok Kumar was sent from the Thana towards East

      Banaulia.


                         18.i. PW-9 on reaching near Himgange Water

      Supply Plant near New City Family Restaurant located on Nala

      Road met an employee of Himgange Water Plant. On asking the

      name of the employee, he was told that his name as Ritesh Kumar

      and that he worked in the water plant. Later on, on being questioned

      about the incident, he admitted his involvement and told that he

      stayed in one room in the plant itself. He also confessed that Ravi

      Kumar was kept there with his hands and feet tied. Ritesh Kumar's

      confessional statement was taken by SI Anoop Kumar on which he

      put his signature. The team went to Fatua to conduct search where

      from Rohit Kumar was arrested who also accepted his involvement

      in the conspiracy to kidnap. From there, the team went to the house

      of Suraj Kumar who was arrested after he confessed his

      involvement. The confessional statement of Suraj Kumar has been

      taken by this witness to which he identified to be in his own
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           23/60




      handwriting and signature.


                         18.ii. Further the witness says that at the instance of

      the accused the entire team along with the accused persons reached

      village Chak Rasulpur located on NH-31, where the foul smell was

      coming. The dead body of Victim Ravi Kumar was found covered

      with tree leaves under a tree to the west side of the road. Next to the

      body a black-colored plastic wire was found, which was about 1.5

      meters long. The inquest report of the dead body was prepared by

      Jitendra Kumar, and the body was sent to Sadar Hospital Bihar

      Sharif for postmortem. All police parties reached Sadar Hospital

      Bihar Sharif. The confessional statement of Arnav Kumar @

      Shivam Kumar was also taken by PW-9.


                         19. PW-10, Dr Faisal Arshad stated in his

      examination-in-chief that on 05.10.2015 he was posted as medical

      officer at Sadar Hospital, Bihar Sharif, Nalanda. On this day

      postmortem examination was done on the dead body of Ravi Kumar

      aged about 14 years, at 9:10 AM which was brought and identified

      by the Hawaldar 84, Hari Mohan Singh. On external examination

      he found that rigor mortis was absent in all four limbs. The body

      was at the stage of decomposition. Both hands were tied up with

      cotton rope. Blisters found all over the body from place to place and
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           24/60




      the whole body was swollen. The right eye excised from its socket.

      Maggots were creeping inside both eyes and the whole face. A

      putrefied smell coming out of the whole body.


                         19.i. He stated that the mouth was gagged with long

      cotton cloth. A long cotton cloth was found inserted in anal orifice.

      Mark of ligature, black in color encircled the whole neck and were

      3/4 inch wide.


                               On dissection- Head- all cranial bones were
                               intact in brain and its meninges were intact and
                               congested.

                               Neck -underneath the mark of ligature tissue
                               found congested.

                               Trachea- found compressed and fractured and
                               congested and hyoid bone fracture

                               Thorax- thoracic cage NAD

                               Heart-all Chambers filled with dark coloured
                               blood.

                               Lungs -intact and congested.

                               Abdomen- stomach empty.

                               Urinary bladder- empty.

                               All other abdominal viscera intact and
                               congested.
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           25/60




                         Opinion- in my opinion the cause of death is due to

      asphyxia resulting from strangulation. Time elapsed since death

      within 36 to 72 hours. The postmortem report was prepared on his

      direction on the computer and bears his signature.


                         19.ii. In his cross examination he stated very clearly

      that after one hour of death rigor mortis starts from fingers of legs

      and gradually goes upwards. It remains for 24 hours. It is wrong

      that rigor mortis is possible for 72 hours. He further stated that he

      does not know as to from which limb rigor mortis disappears

      whether from fingers of hands or any other organ. In case of

      strangulation the chambers of heart become congested and filled

      with dark blood. Since the body was decomposing no external mark

      of injury was found over the body. Maggots were eating the body of

      the deceased. The empty stomach suggested that the deceased had

      not taken a meal for a long time. If the dead body was left in the

      open sky in the field, what time would be sufficient to decompose

      the dead body is not comprehendable. Black ligature marks

      appeared on body and every injury turned black. He further stated

      that he could not say how much time would be required to turn an

      injury into brown in color. Age of injury is assessed by the color of

      the injury however he said that he could not say the age of injury if
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           26/60




      the color of injuries turned black.


                         20. PW-11 Jitendra Kumar, was the Investigating

      Officer in the instant case and has stated in his examination-in-chief

      that on 01.10.2015 he was posted as sub-inspector in Bihar police

      station, and took charge of investigation of Bihar Police Station

      Case number 457 of 2015. He recorded the written application of

      the informant in the case diary. He took the statement of the

      informant thereafter again. Inspected the place of occurrence. He

      took the statement of witnesses Vimala Devi, Archana Kumari. The

      alleged mobile number used in this incident was 7321072463. To

      get its CDR, a letter was sent to the Superintendent of Police for

      report vide Letter No. 2724/15. He received the CDR and CAF of

      the mobile used in the kidnapping case from the Superintendent of

      Police, through which money was demanded.


                         20.i. From the perusal of the report it was found that

      his mobile number was purchased from Airtel Retailer ID

      8969057151 which belonged to Vivek Kumar from Vivek Medical

      Hall Banaulia, Bihar Sharif Police Station, Bihar. Voter ID card

      used in purchasing the said SIM, beared number AF50178707,

      which belonged to Sanjeev Kumar Singh s/o Mevalal Rai, 71 North

      Mandiri Patna, Circle Patna District. On reaching Vivek Medical
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           27/60




      Hall, it was found that the mobile number (7321072463) used in the

      kidnapping was issued by the appellant-accused in a fraudulent

      manner to demand ransom in the incident. CDR and CAF of that

      mobile number showed that a conversation had taken place between

      7321072463 and 9304445877. This mobile number was issued in

      the name of Munna Kumar s/o Raju Yadav, Garh, Bihar Sharif who

      made the call to the informant in the process of committing the

      offence of kidnapping and demanding ransom. A team was formed

      consisting of Sub Inspector Rakesh Kumar, SI Anoop Kumar, SI

      Sunil Kumar Nirjhar, SI Sunil Kumar Rajvanshi, Umesh Kumar and

      the armed forces of the police station. The team was divided into

      two parts.


                         20.ii. PW-11 along with his team left for Banaulia

      and after reaching there, they searched the shop of Vivek @ Modi.

      From there Vivek @ Modi was arrested and 9 mobiles were

      recovered from his shop. The confessional statement of Vivek @

      Modi was also taken, which was attached to the FIR and sent to the

      Court. The confessional statement of Vivek Kumar @ Modi was

      recorded by PW-11. The team also searched the house of Nitish

      Kumar and he was arrested. A motorcycle bearing registration BR-

      21-C-2049 was recovered from his house itself. The confessional

      statement of Nitish Kumar was taken. From Banaulia the team went
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           28/60




      to Garhpar Bihar Sharif where they searched the house of Munna

      Kumar, and thereafter arrested him. From Banaulia, the team

      reached Himgange supply office situated at Nala Road, where the

      second team was already present and Police Sub-Inspector Anoop

      Kumar arrested Ritesh Kumar from there and took his confessional

      statement. All the arrested accused/appellants confessed during

      interrogation that they had kidnapped Ravi Kumar for demanding

      money and after not getting the money and for fear of being caught

      by the police, they killed him and threw his dead body near NH 31

      Chakrasalpur. The team proceeded towards NH 31, Rasalpur along

      with all the accused persons and after reaching there, they saw that

      20 meters west of NH-31 something was lying covered with tree

      branches and dried leaves and the dead body was smelling. Blisters

      found all over the body. The body of the kidnapped Ravi Kumar

      was recovered from the place at the instance of the accused, the

      inquest report was prepared and the body was sent to the hospital

      for postmortem. Injuries were found on the body-face swollen, neck

      swollen, maggots creeping in both eyes, there was a black spot

      around the throat, a black plastic wire was found about one and a

      half meters in the neck and the cause of death was strangulation.


                         20.iii. On 09.10.2015, the CDR and CAF of the

      alleged mobile numbers which were used to demand ransom in the
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           29/60




      kidnapping i.e. 7321072463 and 8873094952 was sought through

      letter No. 236 of 2019 DIU, Office of the Superintendent of Police,

      Nalanda and on 03.11.2019 received the certificate issued by the

      District Information Unit under Form-IV. When the reports were

      examined minutely it became clear that the ransom call was made

      on Preeti Devi's mobile numbers 9504549203 from 7321072463

      and 8873094952 for the amount of Rs 70,00,000 as ransom. From

      the observation of CAF of mobile number 7321072463 it appeared

      that the SIM was issued in the name of Sanjeev Kumar Singh. Voter

      ID card bearing number AF150178707 had been used for

      purchasing the SIM card from Vivek Kumar's medical hall. He

      stated that the photo in the voter ID card was different from the

      photo received from the company, which showed that appellant-

      accused Vivek Kumar @ Modi had obtained this SIM card for the

      kidnapping the victim without verification. The seizure list was

      prepared which was in the handwriting of PW-11. On14.10.2015,

      the postmortem report of the deceased Ravi Kumar was received. In

      his cross examination PW-11 stated that the informant stated in her

      statement that on 28.09.2015 her son and daughter were going to

      withdraw money from the ATM where they had a fight with one

      Devanand who had threatened to kidnap him. She also stated that

      20 days ago one Rajiv Kumar had an altercation with her husband.
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           30/60




      The appellants-accused were not named in the FIR. PW-4, Vimla

      Devi and one Archana Kumari also stated in their deposition that a

      boy named Devanand had threatened to kidnap Ravi Kumar and

      that Rajiv Kumar Sharma also gave threatening. He further stated

      that he did not investigate against either Devanand or Rajiv Kumar

      Sharma.


                         20.iv. In Para-15 of his cross-examination PW-11

      stated that there were no eye-witnesses in the case who saw the

      occurrence of kidnapping or killing of the victim. In Para-16 he

      stated that there was no forensic investigation of the fingerprints

      found on the black wire discovered from near the dead body. He

      further stated that he did not mention anywhere that a piece of cloth

      was found from the mouth of the deceased. The doctor also did not

      submit any piece of cloth after postmortem of the dead body. The

      appellants-accused Ritesh was arrested on 04.10.2015 but was not

      presented before the Magistrate till 6.10.2015. Further, the mobile

      phone which was used to make the call was not in the name of

      Ritesh Kumar. The owner of the SIM, Sanjiv Kumar Singh was not

      made an accused in the present case. In Para 19 of his cross-

      examination he also stated that he did not verify who made the call

      to the informant and no voice recording was found which would

      show that the accused made the call. He further stated that he did
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           31/60




      not record the confessional statement of either of the accused.


                         21. PW-12 Md Javed Akhtar the Nodal Officer of

      Bharti Airtel Ltd at Patna in his examination-in-chief stated that he

      produced the original CAF of mobile number 7321072463 before

      the Court. He stated that the SIM was issued by the retailer of Vivek

      medical hall, Banaulia, Bihar Sharif, Nalanda, Bihar in the name of

      one Sanjeev Kumar Singh on the basis of election I-card. This CAF

      was kept safe in the company. No manipulation was done with this

      document


                         21.i. In his cross-examination, PW-12 stated that the

      police did not inquire anything about the CAF. He was not the

      custodian of the CAF. It is the general rule that the person in whose

      name the SIM is issued, it is presumed that the same person uses it.


                         Findings of Trial Court


                         22. The learned trial Court, after analyzing the

      evidences of prosecution witnesses concluded that the entire case is

      based on circumstantial evidence. The trial Court noted that the

      prosecution has succeeded in proving the entire chain of

      circumstances wherein the victim Ravi Kumar was kidnapped by

      the co-accused persons. The co-accused persons picked the victim

      from his school and carried him to Himgange water plant where he
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           32/60




      was strangulated to death. Eventually, based on the confessional

      statements of one of the co-accused, Vivek @ Modi, the dead body

      of the victim was found in accordance with Section 27 of the Indian

      Evidence Act. The CDR/CAF of the telephonic conversations

      between the accused persons/appellants and PW-5, the informant

      who is the mother of the victim also point towards the guilt of the

      accused persons/appellants and the same has been supported by

      PW-11, who was the Investigating Officer of the case and PW-12,

      the Nodal Officer for Bharti Airtel Ltd. Patna. The learned trial

      Court also found that the circumstances of demand for ransom and

      the motive of the accused persons/appellants supported the versions

      of the prosecution witnesses and thus proved the nexus of the

      accused with the alleged homicidal death of the victim. The learned

      trial Court thus convicted the accused persons/appellants of the

      charges leveled against them and held them responsible for the

      conspiracy of kidnapping and homicidal death of the victim.


                         Submission on behalf of the Appellants


                         23. Learned counsel for the appellants have assailed

      the judgment under appeal (hereinafter referred to as the 'impugned

      judgment') on various grounds. The Learned counsel argued that

      the requisite documents of CDR produced on record are not the
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           33/60




      electronic record and same could not be considered as an admissible

      evidence under the provision of Section 65(B) of the Evidence Act.

      He submitted that the documents of CDR produced on record vide

      Ext-11 did not indicate the I.P. Address of the master server.

      Moreover, there is no certificate relating to software used for

      recording the data in the server etc. issued by the concerned

      software company. Therefore, it cannot be said that there was

      compliance with Section 65 (B) of the evidence Act. Hence, the

      CDR of the cellphone of the PW-5 and others would not be a

      reliable evidence in this case. More over learned counsel argued and

      raised objection with respect to the documentary evidence CAF

      that, the CAF is manipulated so can not be relied upon. Learned

      counsel for the appellants further submitted that the entire case of

      prosecution is based on circumstantial evidence. It was incumbent

      on the part of prosecution to prove each and every circumstances of

      incriminating in nature to point out the guilt of the accused and

      exclude any hypothesis consistent with their innocence.


                         24. Learned counsel further submitted that Ritesh

      Kumar @ Vikas Kumar is not named in the FIR and the mobile sim

      which has been used in the occurrence is not in his name so the

      electronic record of CDR cannot be used against him. The

      confessional statements have been recorded against their will after
 Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
                                           34/60




      pressurizing, moreover the confessional statement of Ritesh Kumar

      is contradictory because as per the prosecution evidence the dead

      body was recovered at 3:30 am on 05.10.2015 whereas the

      confessional statement of Ritesh Kumar has been recorded on

      04.10.2015

at 11:30 pm and it has also come on the record that the

dead body was recovered on 4th of October 2015 during day time.

There is no eye witness of the occurrence and the sim which was

used in the occurrence has been issued in the name of Sanjeev

Kumar Singh who has not been made accused in this case. Nothing

has been recovered from the accused/appellant namely Ritesh

Kumar and no specific allegation levelled against him.

25. Learned counsel on behalf of the

accused/appellant namely Vivek @ Modi submitted that appellant

namely Vivek @ Modi is only shopkeeper and doing the work of

mobile repairing, he has got no concern with the other accused

persons and he sold only the Sim to the accused/appellant. Issuing a

sim cannot be said to he fallen in any category of any offence.

26. Learned counsels further submitted that in the

instant case, prosecution adduced the evidence of kidnapping of the

victim Ravi Kumar. Thereafter, his dead body was recovered from

the Bypass road NH 31, Chakrasalpur. The prosecution also
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
35/60

attempted to bring on record that the accused/appellants were

connected to each other. But, no material were produced on record

to establish that the accused/appellants committed the murder of the

victim Ravi Kumar. The absence of evidence attributing the overt-

act of the accused/appellants for murder of the boy created vaccum

in the prosecution case. The lacuna in the prosecution case is

sufficient to draw inference that prosecution failed to prove the

complete chain of circumstances for adverse inference against the

accused.

27. Moreover, as per the postmortem report time of

death is 36 to 72 hours before the recovery of the dead body The

postmortem report bears the address of the private clinic of the

doctor that indicates that the postmortem is only table work and

nothing else and it has not been done in the hospital. The inquest

report submitted before the postmortem which raised doubtful

question towards the genuineness of the postmortem report. The

inquest report bears the signature of Ramdev Sharma, who is none

else but the father of Rajiv Kumar Sharma who was earlier the

named accused of the FIR, it is not known as to how he reached to

the place where the dead body was recovered. This creates doubt.

The date of postmortem report and the date of the recovery of the

dead body is contradictory to each other. Hence, benefit of doubt in
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
36/60

prosecution cases be given to the accused/appellants.

28. Learned counsel further reiterated that the

appellant was not named in the FIR and that the FIR. was registered

solely on the basis of suspicion. Hence, his conviction is bad in law

and the same is fit to be set aside. He also submitted that the

defense had filed the certified copies of the deposition of the

witnesses vide J.J.B. case no. 191 of 2015 wherein rest of the

accused were acquitted as they were not found guilty.

Submission on behalf of the Informant

29. Learned counsel on behalf of the informant

submits that the accused persons kidnapped/abducted the minor

victim Ravi Kumar on the way when he was going to his school

with malafide and dishonest intention to extract a huge ransom of

seventy lakhs rupees from his mother. He further submits that PW-5

Priti Devi, the informant is the mother of the victim who establishes

the circumstances of the demand of ransom on the part of the

accused/appellants as well as the electronic document of CDR of

telephonic conversation of the accused/appellants with the mother

of the victim. He next submits that PW-5 Priti Devi, the mother of

the deceased victim Ravi Kumar stated very clearly in her

examination-in-chief that she received three calls from the accused
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
37/60

persons/appellants demanding ransom money and this fact has also

been supported by PW-11 Jitendra Kumar on the point of receipt of

threatening calls by the PW-5 Priti Devi.

30. Learned counsel for the informant further

submits that in this case it is also evident from the evidence that the

accused Vivek @ Modi issued the sim on forged documents in the

name of one Sanjeev Kumar Singh for the purpose of ransom. He

next submits that it is the rule of law that the electronic record

produced before the Court is documentary evidence under Section 3

of Evidence Act. Learned counsel for the informant lastly submits

that the impugned judgment and order do not suffer from any

infirmity and no interference is required.

Submission on behalf of the State

31. The Learned APP for the State vehemently

submitted that the prosecution has proved the circumstances of

abduction of Ravi Kumar by the accused persons/appellants as they

carried the minor innocent victim boy to the room of the Himgange

water plant situated at Nala Road, Bihar PS and killed him in a

brutal manner by strangulation. The accused persons/appellants also

ventured to dispose of the dead body of victim Ravi Kumar. The

prosecution established that after the arrest of the
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
38/60

accused/appellants, the dead body of the victim was recovered from

the place of crime at the behest of both accused persons/appellants

under Section 27 of Evidence Act. Moreover, the accused

persons/appellants made confessional statements about the black

plastic wire which was found lying near the dead body of the victim

Ravi Kumar. These circumstances categorically demonstrate the

active participation of both the accused persons/appellants for

committing the crime. The evidence of PW-11, and PW-12 also

attributes suspicious circumstances against the accused/appellants

for the criminal conspiracy on their part.

32. He further submitted that these all circumstances

are sufficient to prove that the accused hatched the criminal

conspiracy to commit the crime and relied upon the observations of

the Lordship in the case of Vikram Singh and Others Vs. State of

Punjab, reported in 2010 ALL MR (Cri) 982 (SC) in which their

Lordship has dealt with the similar circumstances of kidnapping of

the minor boy for ransom and consequently committed his murder.

In this judicial precedent, their Lordships of Hon’ble Apex Court

held the accused are guilty under Section 120-B of IPC. He lastly

submitted that the attending circumstances on record are sufficient

to raise the presumption that the accused are only the perpetrator

committed the murder of victim and the impugned judgment and
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
39/60

order do not suffer from any infirmity and no interference is

required.

Consideration

33. We have heard the learned counsels for the

appellants, learned counsel for the informant and learned APP for

the State as well perused the trial Court’s records.

34. Before we proceed to test the correctness of the

findings returned by the trial Court, we must bear in mind that the

prosecution case rests on evidence which are circumstantial in

nature as arrived at by the learned trial Court in Paragraph ’16’ of

the judgment under appeal. Keeping in view the findings of the

learned trial Court and the submissions of learned counsel for the

appellants and learned APP for the State, this Court would examine

as to whether on the basis of the evidences on the record, it may be

safely concluded that the prosecution has been able to prove its case

beyond all reasonable doubts and the criminological chain of events

leading to the death of Ravi Kumar is complete. This Court is

reminded of the judgment of the Hon’ble Supreme Court in the case

of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4

SCC 116. Paragraph ‘152’ of the said judgment is being reproduced

here-under for a ready reference:

Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
40/60

“152. Before discussing the cases relied upon
by the High Court we would like to cite a few
decisions on the nature, character and essential
proof required in a criminal case which rests
on circumstantial evidence alone. The most
fundamental and basic decision of this Court is
Hanumant v. State of Madhya Pradesh. This
case has been uniformly followed and applied
by this Court in a large number of later
decisions up- to-date, for instance, the cases of
Tufail (Alias) Simmi v. State of Uttar Pradesh
and Ramgopal v. State of Maharashtra. It may
be useful to extract what Mahajan, J. has laid
down in
Hanumant case:

“It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of
guilt is to be drawn should in the first instance
be fully established, and all the facts so
established should be consistent only with the
hypothesis of the guilt of the accused. Again,
the circumstances should be of a conclusive
nature and tendency and they should be such as
to exclude every hypothesis but the one
proposed to be proved. In other words, there
must be a chain of evidence so far complete as
not to leave any reasonable ground for a
conclusion consistent with the innocence of the
accused and it must be such as to show that
within all human probability the act must have
been done by the accused.””

35. In the case of Dilavar Hussain and ors. v. State

of Gujarat and Anr., (1991) 1 SCC 253, once again the Hon’ble

Supreme Court has laid down the principles governing appreciation

of circumstantial evidences. Paragraphs ‘3’ and ‘4’ of the judgment
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
41/60

in the case of Dilavar Hussain (supra) reads as under:-

“3. All this generated a little emotion during
submissions. But sentiments or emotions,
howsoever strong, are neither relevant nor
have any place in a court of law. Acquittal or
conviction depends on proof or otherwise of the
criminological chain which invariably
comprises of why, where, when, how and who.
Each knot of the chain has to be proved,
beyond shadow of doubt to bring home the
guilt. Any crack or loosening in it weakens the
prosecution. Each link, must be so consistent
that the only conclusion which must follow is
that the accused is guilty. Although guilty
should not escape (sic). But on reliable
evidence, truthful witnesses and honest and fair
investigation. No free man should be amerced
by framing or to assuage feelings as it is fatal
to human dignity and destructive of social,
ethical and legal norm. Heinousness of crime
or cruelty in its execution however abhorrent
and hateful cannot reflect in deciding the guilt.

4. Misgiving, also, prevailed about
appreciation of evidence. Without adverting to
submissions suffice it to mention that credibility
of witnesses has to be measured with same
yardstick, whether, it is ordinary crime or a
crime emanating due to communal frenzy. Law
does not make any distinction either in leading
of evidence or in its assessment. Rule is one
and only one namely, whether depositions are
honest and true. Whether the witnesses, who
claim to have seen the incident in this case,
withstand this test is the issue? But before that
some legal and general questions touching
upon veracity of prosecution version may be
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
42/60

disposed of.”

36. To bring home the guilt, the prosecution in the

present case would be required to prove the involvement of the

appellants in the alleged kidnapping, their demand for ransom, the

presence of witnesses and the possibility of them seeing the incident

and identification of the appellants. Adding on to the aforesaid legal

principles, in Devi Lal vs. State of Rajasthan AIR 2019 SC 688, a

three-judge bench of the Hon’ble Supreme Court held that:

“in a case based on circumstantial evidence
where two views are possible, one pointing to
the guilt and the other to his innocence, the
accused is entitled to the benefit of one which is
favorable to him. Besides that, before recording
conviction, the court must be satisfied that the
accused ‘must be’ and not merely ‘maybe’
guilty”.

37. In Shivaji Sahebrao Bobade vs. State of

Maharashtra 1974 SCR (1) 489, the Supreme Court, elaborating

upon the above principle, observed that the mental distance between

‘may be’ and ‘must be’ is long and divides vague conjectures from

sure conclusions. Therefore, even if the prosecution evidence

generates strong suspicion against the accused, it cannot be a

substitute for proof.

38. Bearing in mind the aforesaid legal principles,
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
43/60

we would examine and consider –

(a) whether the circumstances relied by the
prosecution have been proved beyond
reasonable doubt;

(b) whether those circumstances are of a
definite tendency unerringly pointing towards
the guilt of the accused;

(c) whether those circumstances taken
cumulatively form a chain so far complete that
there is no escape from the conclusion that
within all human probability the crime was
committed by the accused;

(d) whether they are consistent only with the
hypothesis of the accused being guilty; and

(e) whether they exclude every possible
hypothesis except the one to be proved.

39. A bare perusal of the statements of the

prosecution witnesses establish that there were no eye-witnesses to

the occurrence in trial. PW-1 and PW-2 turned hostile. PW-4 and

PW-6 are related to the informant and the rest of the prosecution

witnesses are the police members who were part of the investigation

team and the doctor who conducted the postmortem of the dead

body. PW-12 is the sole independent witness but he also did not

witness the occurrence. The prosecution rests its case on the

confessional statements of the appellants-accused which led to the

discovery of the dead body. It is a significant fact that the appellants
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
44/60

were not named in the FIR. It is also surprising that the inquest

report was prepared by PW-11 at Bihar Sharif but the witnesses in

whose presence, the report was prepared were residents of

Lakhisarai. Also, the prosecution did not examine the witnesses in

the presence of whom the inquest report was made.

40. One of the discoveries which was made in

furtherance of the confessional statements of the accused was a 1.5

meters long black plastic wire which was allegedly used in

strangulating the dead victim. PW-8 in Para 6 of his examination-in-

chief has stated that the police team had prepared the inquest report

in the presence of two witnesses and had seized the black plastic

wire. He said that the seizure list was prepared by PW-11, who was

the Investigating Officer in the instant case. The 1.5 meters long

black plastic wire was an important discovery however it was

neither mentioned in the seizure list by the prosecution nor was it

produced before the learned trial Court. The trial Court has also

erred in not requiring the production of the alleged weapon. PW-11

also stated that the fingerprints on black wire recovered near the

dead body of the victim was not sent for forensic examination. PW-

7, who was also in the investigation team has stated in Para-12 of

his cross-examination that he did not know if the black wire was

sent for forensic examination or not or if it was mentioned in the
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
45/60

seizure list.

41. In the case of Jasbir Singh Vs. State of Punjab

reported in AIR 1998 SC 1660 it was held that “weapon was sealed

on the spot and there is no evidence produced by the prosecution

that after seizing the weapon it was kept in Malkhana of Police

Station properly and not produced Malkhana register, then seizure

of the weapon is doubtful.” In the case of State of Rajasthan Vs.

Gurmail Singh reported in AIR 2005 SC 1578 the Apex Court held

that “if it was not proved by evidence that seized weapon was kept

in Malkhana in sealed situation, then prosecution case may be

doubtful.”

42. We are afraid that the learned trial Court has not

scrutinized the entire prosecution evidence in the broad spectrum of

the materials available on the record. The material inconsistencies,

false implication of the persons and naming them on mere suspicion

are evident from the evidence of the prosecution witnesses. The fact

remains that what has been held by the Hon’ble Supreme Court in

the case of Sharad Birdhichand Sarda (supra) and Dilavar

Hussain (supra) as the principles of Panchseel governing a case of

circumstantial evidence is completely missing in this case.

43. Again, in Padala Veera Reddy v. State of
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
46/60

Andhra Pradesh AIR1990SC79, this Court affirmed that when a

case rests solely upon circumstantial evidence, such evidence must

satisfy the following tests:

“1. The circumstances from which an inference
of guilt is sought to be drawn must be cogently
and firmly established;

2. Those circumstances should be of a definite
tendency unerringly pointing towards guilt of
the accused;

3.The circumstances, taken cumulatively, should
form a chain so complete that there is no escape
from the conclusion that within all human
probability the crime was committed by the
accused and none else; and

4. The circumstantial evidence in order to
sustain conviction must be complete and
incapable of explanation of any other hypothesis
than that of the guilt of the accused and such
evidence should not only be consistent with the
guilt of the accused but should be inconsistent
with his innocence.”

44. In the case of Jaharlal Das Vs. State of Orissa

reported in (1991) 3 SCC 27, the Hon’ble Supreme Court has held

that an accused cannot be convicted on mere suspicion how so

strong it may be. Reference in this connection may be made to the

judgment of the Hon’ble Supreme Court in the case of Jaharlal

(supra). Paragraph ‘4’ is being reproduced here under for a ready

reference.

Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
47/60

“4. No doubt the offence is a shocking one but
the gravity of the offence cannot by itself over
weigh as far as legal proof is concerned.

Invariably in such cases a person last seen with
the victim, unless otherwise there are
circumstances prima facie exonerating him,
would be the prime suspect but in the ultimate
judicial adjudication suspicion, howsoever
strong, cannot be allowed to take the place of
proof.”

45. In the light of the aforementioned judgments of

the Hon’ble Supreme Court, this Court finds that in the present

case, the only circumstance is the suspicion against the

accused/appellants. In the present case, PW-11, the Investigating

Officer has stated that the mobile phone from which the alleged

ransom call was made, was found belonging to one Sanjiv Kumar

Singh. The SIM was allegedly used by the appellants/accused in a

fraudulent manner for demand of ransom. However, based on the

material on record, it appears that the police did not conduct any

investigation about this person, Sanjiv Kumar Singh and neither he

was examined as Prosecution Witness nor sent up for trial as

accused by the Police. The CDR and the CAF shows that there was

one conversation which took place between the alleged mobile

number-7321072463 and the informant’s number- 9304447877. The

prosecution however, has not proved that it was the appellants who

called from the alleged mobile number. As was admitted by PW-11,
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
48/60

the Investigating Officer, no voice recording was brought forth to

show that the demand for ransom was actually made by the

appellants/accused themselves.

46. In order to deal with the admissibility of the

electronic evidence in the present case which is the Call Details

Report and the CAF, it is necessary to delve into the necessary legal

provisions of the Indian Evidence Act, i.e., Section 22-A, Section

65-A and Section 65-B of the Act. Section 22-A of the Evidence

Act, which deals with the relevance of oral admissions as to

contents of electronic records, reads as follows:

“22A. When oral admission as to contents of
electronic records are relevant-Oral admissions
as to the contents of electronic records are not
relevant, unless the genuineness of the electronic
record produced is in question.”

“65A. Special provisions as to evidence relating
to electronic record-The contents of electronic
records may be proved in accordance with the
provisions of section 65B.”

“65B. Admissibility of electronic records.

Notwithstanding anything contained in this Act,
any records. information contained in an
electronic record which is printed on a paper,
stored, recorded or copied in optical or
magnetic media produced by a computer
(hereinafter referred to as the computer output)
shall be deemed to be also a document, if the
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
49/60

conditions mentioned in this section are satisfied
in relation to the information and computer in
question and shall be admissible in any
proceedings, without further proof or production
of the original, as evidence of any contents of
the original or of any fact stated therein of
which direct evidence would be admissible.”

The conditions referred to in sub-section;

(1) in respect of a computer output shall be the
following, namely:-

a) the computer output containing the
information was produced by the computer
during the period over which the computer was
used regularly to store or process information
for the purposes of any activities regularly
carried on over that period by the person having
lawful control over the use of the computer;

b) during the said period, information of the
kind contained in the electronic record or of the
kind from which the information so contained is
derived was regularly fed into the computer in
the ordinary course of the said activities;

c) throughout the material part of the said
period, the computer was operating properly or,
if not, then in respect of any period in which it
was not operating properly or was out of
operation during that part of the period, was not
such as to affect the electronic record or the
accuracy of its contents; and

d) the information contained in the electronic
record reproduces or is derived from such
information fed into the computer in the
ordinary course of the said activities.

(3)Where over any period, the function of
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
50/60

storing or processing information for the
purposes of any activities regularly carried on
over that period as mentioned in clause (a) of
sub-section (2) was regularly performed by
computers, whether-

a) by a combination of computers operating
over that period; or

b) by different computers operating in
succession over that period; or

c) by different combinations of computers
operating in succession over that period; or

d) in any other manner involving the successive
operation over that period, in whatever order, of
one or more computers and one or more
combinations of computers.

all the computers used for that purpose during
that period shall be treated for the purposes of
this section as constituting a single computer;
and references in this section to a computer
shall be construed accordingly.

(4) In any proceedings where it is desired to give
a statement in evidence by virtue of this section,
a certificate doing any of the following things,
that is to say,-

a) identifying the electronic record containing
the statement and describing the manner in
which it was produced;

b) giving such particulars of any device involved
in the production of that electronic record as
may be appropriate for the purpose of showing
that the electronic record was produced by a
computer;

Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
51/60

c) dealing with any of the matters to which the
conditions mentioned in sub-section (2) relate,

and purporting to be signed by a person
occupying a responsible official position in
relation to the operation of the relevant device
or the management of the relevant activities
(whichever is appropriate) shall be evidence of
any matter stated in the certificate; and for the
purposes of this sub-section it shall be sufficient
for a matter to be stated to the best of the
knowledge and belief of the person stating it.

(5) For the purposes of this section,-

a) information shall be taken to be supplied to a
computer if it is supplied thereto in any
appropriate form and whether it is so supplied
directly or (with or without human intervention)
by means of any appropriate equipment;

b) whether in the course of activities carried on
by any official, information is supplied with a
view to its being stored or processed for the
purposes of those activities by a computer
operated otherwise than in the course of those
activities, that information, if duly supplied to
that computer, shall be taken to be supplied to it
in the course of those activities;

c) a computer output shall be taken to have been
produced by a computer whether it was
produced by it directly or (with or without
human intervention) by means of any
appropriate equipment.

47. The Supreme Court in Arjun Panditrao Khotkar

v. Kailash Kushanrao Gorantyal And Ors. [2020] 7 SCR 180

referred to its decision in Anvar P.V. v. P.K. Basheer [2014] 11
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
52/60

S.C.R. 399 where it discussed the provisions of Section 65B of the

Indian Evidence Act. The Court made the following observations:

“Section 65B(1) opens with a non-obstante
clause, and makes it clear that any information
that is contained in an electronic record which
is printed on a paper, stored, recorded or
copied in optical or magnetic media produced
by a computer shall be deemed to be a
document, and shall be admissible in any
proceedings without further proof of production
of the original, as evidence of the contents of
the original or of any facts stated therein of
which direct evidence would be admissible. The
deeming fiction is for the reason that
“document” as defined by Section 3 of the
Evidence Act does not include electronic
records.

22. Section 65B(2) then refers to the conditions
that must be satisfied in respect of a computer
output, and states that the test for being
included in conditions 65B(2(a)) to 65(2(d)) is
that the computer be regularly used to store or
process information for purposes of activities
regularly carried on in the period in question.
The conditions mentioned in sub-sections 2(a)
to 2(d) must be satisfied cumulatively.

23. Under Sub-section (4), a certificate is to be
produced that identifies the electronic record
containing the statement and describes the
manner in which it is produced, or gives
particulars of the device involved in the
production of the electronic record to show that
the electronic record was produced by a
computer, by either a person occupying a
responsible official position in relation to the
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
53/60

operation of the relevant device; or a person
who is in the management of “relevant
activities” – whichever is appropriate. What is
also of importance is that it shall be sufficient
for such matter to be stated to the “best of the
knowledge and belief of the person stating it”.

Under Section 65-B(4) of the Evidence Act, if it
is desired to give a statement in any
proceedings pertaining to an electronic record,
it is permissible provided the following
conditions are satisfied:

(a) There must be a certificate which identifies
the electronic record containing the statement;

(b) The certificate must describe the manner in
which the electronic record was produced;

(c) The certificate must furnish the particulars
of the device involved in the production of that
record;

(d) The certificate must deal with the
applicable conditions mentioned under Section
65-B(2)
of the Evidence Act; and

(e) The certificate must be signed by a person
occupying a responsible official position in
relation to the operation of the relevant device.

48. All these safeguards are taken to ensure the

source and authenticity, which are the two hallmarks pertaining to

electronic record sought to be used as Evidence. The Evidence Act

does not contemplate or permit the proof of an electronic record by

oral evidence if requirements under Section 65-B of the Evidence
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
54/60

Act are not complied with, as the law now stands in India.

49. The CDR/CAF submitted by the Investigating

Officer was signed by the District Intelligence Unit which was

received through e-mail from the concerned telecom agency/RTMS

in the form of computer generated CDR/CAF which has formed the

basis of fastening liability on the appellants was not certified in

accordance with the law enshrined in Section 65B (5)(a)(b)(c) of

the Indian Evidence Act, whereas Section 65B (5)(a)(b)(c) of the

Indian Evidence Act states that:

(5) For the purposes of this section,-

a) information shall be taken to be supplied to
a computer if it is supplied thereto in any
appropriate form and whether it is so supplied
directly or (with or without human
intervention) by means of any appropriate
equipment;

b) whether in the course of activities carried on
by any official, information is supplied with a
view to its being stored or processed for the
purposes of those activities by a computer
operated otherwise than in the course of those
activities, that information, if duly supplied to
that computer, shall be taken to be supplied to
it in the course of those activities;

c) a computer output shall be taken to have
been produced by a computer whether it was
produced by it directly or (with or without
human intervention) by means of any
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
55/60

appropriate equipment.

50. The prosecution has submitted the certified copy

of the mail sent to the authorities which was certified by the District

Intelligence Unit but when the law prescribes that the person who

has the custody of the electronic device or the person who operates

it, is required to certify such copy of the electronic evidence.

Further, the prosecution has failed to supply the report directly

without any human intervention in compliance of Section 65B(5).

In light of the statutory mandate and the decisions of the Apex

Court (supra) on the same, this Court is not inclined to accept the

admissibility of the CDR and CAF in the absence of the requisite

certificate from the persons who had the custody of the mobile

phone.

51. Further based on the material on record, the

prosecution has submitted that the confessional statements of the

accused were recorded by the Investigating Officer on 04.10.2015

at 11 pm and on the basis of the same, the police recovered the dead

body of the deceased victim Ravi Kumar on 05.10.2015 at 3 pm.

This version of the prosecution witness is very doubtful as the

Investigating Officer does not recovered the dead body of the

deceased/victim on the same day whereas the confessional

statement of the accused/appellant was recorded on 04.10.2015 at
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
56/60

11 pm and the dead body of the deceased/victim was recovered on

05.10.2015 at 3 pm. There is no arrest memo on the record showing

the date and time of arrest of the accused persons.

52. In the case of Subramanya v. State of

Karnataka 2022 SCC Online SC 1400, Apex Court held as under: –

“82. Keeping in mind the aforesaid evidence,
we proceed to consider whether the prosecution
has been able to prove and establish the
discoveries in accordance with law. Section 27
of the Evidence Act reads thus:

“27. How much of information received from
accused may be proved. — Provided that, when
any fact is deposed to as discovered in
consequence of information received from a
person accused of any offence, in the custody of
a police officer, so much of such information,
whether it amounts to a confession or not, as
relates distinctly to the fact thereby discovered,
may be proved.”

83. The first and the basic infirmity in the
evidence of all the aforesaid prosecution
witnesses is that none of them have deposed the
exact statement said to have been made by the
appellant herein which ultimately led to the
discovery of a fact relevant under Section 27 of
the Evidence Act.

84. If, it is say of the investigating officer that
the accused appellant while in custody on his
own free will and volition made a statement
that he would lead to the place where he had
hidden the weapon of offence, the site of burial
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
57/60

of the dead body, clothes etc., then the first
thing that the investigating officer should have
done was to call for two independent witnesses
at the police station itself. Once the two
independent witnesses would arrive at the
police station thereafter in their presence the
accused should be asked to make an
appropriate statement as he may desire in
regard to pointing out the place where he is
said to have hidden the weapon of offence etc.
When the accused while in custody makes such
statement before the two independent witnesses
(panch-witnesses) the exact statement or rather
the exact words uttered by the accused should
be incorporated in the first part of the
panchnama that the investigating officer may
draw in accordance with law. This first part of
the panchnama for the purpose of Section 27 of
the Evidence Act is always drawn at the police
station in the presence of the independent
witnesses so as to lend credence that a
particular statement was made by the accused
expressing his willingness on his own free will
and volition to point out the place where the
weapon of offence or any other article used in
the commission of the offence had been hidden.
Once the first part of the panchnama is
completed thereafter the police party along
with the accused and the two independent
witnesses (panch-witnesses) would proceed to
the particular place as may be led by the
accused. If from that particular place anything
like the weapon of offence or blood stained
clothes or any other article is discovered then
that part of the entire process would form the
second part of the panchnama. This is how the
law expects the investigating officer to draw
the discovery panchnama as contemplated
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
58/60

under Section 27 of the Evidence Act. If we
read the entire oral evidence of the
investigating officer then it is clear that the
same is deficient in all the aforesaid relevant
aspects of the matter.”

(emphasis supplied)

53. Whereas in this case, when the confessional

statement of the accused/appellants was being recorded, no

independent witness was called by the Investigating Officer to lend

credence to the confessional statement of the accused/appellants. In

such circumstance, the so called confessional statement given by

accused/appellants would not be admissible in evidence.

54. Apart from above mentioned latches which the

prosecution case suffers, it is found that no arrest memo has been

submitted by the prosecution showing the date and time of arrest of

the accused persons. Therefore, the prosecution has failed to prove

arrest of the accused persons prior to discovery of the dead body.

The Investigating Officer has blatantly stated in his deposition that

the accused gave their confessions and on the basis of the same, the

police team recovered the dead body of Ravi Kumar from behind a

bush on the road near Chak Rasalpur, NH-31, Bihar Sharif. In

Ashish Jain vs. Makrand Singh and others AIR 2019 SC 546,

Apex Court held that:

Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
59/60

“once a confessional statement of the accused
is found, on facts, to be involuntary, it would be
hit by Article 20(3) of the Constitution of India,
rendering such a confession inadmissible. It
was further noted that there is an embargo on
accepting self-incriminatory evidence, but if it
leads to the recovery of material objects in
relation to a crime, it is most often taken to
hold evidentiary value as per the circumstances
of each case. Apex Court further cautioned that
if such a statement is made under undue
pressure and compulsion from the Investigating
Officer, the evidentiary value of such a
statement leading to the recovery is nullified.”

55. On a cumulative reading of the evidences

discussed here-in-above, this Court is of the considered opinion that

prosecution has failed to bring cogent evidences to prove the guilt

of the accused-appellants beyond shadow of all reasonable doubts.

The essential ingredients of the offence under Sections 364A and

302 IPC is lacking and the link between the kidnapping and murder

of victim and role of the accused-appellants in connection with the

occurrence in question could not be fully established so as to reach

to a conclusion of guilt against the appellants.

56. In result, the impugned judgment of the trial

Court is set aside. The appellants are acquitted of the charges giving

them benefit of doubt.

57. Both the appellants, Vivek Kumar @ Vivek @
Patna High Court CR. APP (DB) No.822 of 2021 dt.16-01-2025
60/60

Modi @ Ram Vivek Kumar, Son of Nand Kishore Prasad (Cr.

Appeal (DB) No. 822 of 2021) and Ritesh Kumar @ Vikas Kumar

@ Vikas @ Ritesh, Son of Mukesh Kumar (Cr. Appeal (DB) No. 99

of 2022) are said to be in custody. They shall be released forthwith,

if not wanted in any other case.

58. A copy of this judgment together with the trial

Court record be sent back to learned trial Court.

59. Both the appeals are allowed.

(Rajeev Ranjan Prasad, J)

(Ramesh Chand Malviya, J)

Brajesh Kumar/-

AFR/NAFR                AFR
CAV DATE                N/A
Uploading Date          29.01.2025
Transmission Date       29.01.2025
 

[ad_1]

Source link

LEAVE A REPLY

Please enter your comment!
Please enter your name here