Patna High Court
Vivek Kumar @ Vivek @ Modi @ Ram Vivek … 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,
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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
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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.
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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
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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
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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
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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.
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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)
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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:
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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
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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
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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,
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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
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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
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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
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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
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“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,
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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
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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
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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;
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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
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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
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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
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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
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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
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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
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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
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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 @
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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
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