Patna High Court
Niraj Yadav @ Niraj Kumar Chaudhri And … vs The State Of Bihar on 9 September, 2024
Author: Shailendra Singh
Bench: Rajeev Ranjan Prasad, Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.732 of 2016
Arising Out of PS. Case No.-517 Year-2015 Thana- KHAJANCHI HAT District- Purnia
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1. Niraj Yadav @ Niraj Kumar Chaudhri, Son of Late Kapildev Prasad Yadav
@ Kapildev Prasad Chaudhari, Resident of Village- Ufrail, Police Station-
K.Hat Maranga, District- Purnea.
2. Kishore Yadav @ Kishore Kumar Yadav @ Kishore Kumar, Son of Pramod
Yadav, Resident of Village- Leela, Police Station- Bhawanipore, District-
Purnea.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellants : Mr. Y.V. Giri, Sr. Advocate
Mr. Devashish Giri, Advocate
Mr. Birendra Kumar Singh, Advocate
For the State : Mr. Ajay Mishra, Addl. P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE SHAILENDRA SINGH)
Date : 09-09-2024
Heard Mr. Y.V. Giri, learned Senior Counsel assisted
by Mr. Devashish Giri, learned Counsel for the appellants and
Mr. Ajay Mishra, learned Additional Public Prosecutor for the
State.
2. The instant criminal appeal has been filed by the
appellants against the judgment of conviction dated 06.06.2016
and order of sentence dated 13.06.2016 passed by the court of
learned 1st Additional Sessions Judge, Purnea in Sessions Case
No. 417 of 2015/Trial No. 376 of 2015 arising out of K. Hat P.S.
Patna High Court CR. APP (DB) No.732 of 2016 dt.09-09-2024
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Case No. 517 of 2015 whereby and whereunder the learned trial
court convicted the appellants for the offences punishable under
Sections 364A, 302, 120B and 201 of the Indian Penal Code ( in
short 'IPC'). The appellants have been sentenced to undergo
rigorous imprisonment for life and to pay a fine of Rs.
1,00,000/- (Rupees One Lakh) each for the offence under
Section 364A of IPC. They have been further ordered to
undergo rigorous imprisonment for life and to pay a fine of Rs.
2,00,000/- (Rupees Two Lakh) each for the offence under
Section 302 of IPC. They have been also ordered to undergo
rigorous imprisonment for life and to pay a fine of Rs.
1,00,000/- (Rupees One Lakh) each for the offence under
Section 120B of IPC. They have been further ordered to
undergo rigorous imprisonment for seven years and to pay a fine
of Rs. 50,000/- each for the offence under Section 201 of IPC.
All the sentences have been ordered to run concurrently.
Prosecution Story:-
3. The prosecution's case in brief is that as per the
written report filed by the informant, Amit Ranjan (PW-4), on
03.08.2015
at about 12:30 P.M., while he, along with his
nephew, Punit Kumar (the deceased), came near the house of
appellant no.1 riding on a motorcycle, then Niraj Yadav and
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Kishore Yadav (the appellants) who were standing outside their
house got their motorcycle stopped and after catching hold of
the collar of Punit Kumar (hereinafter referred to as ‘victim’) by
uttering as to why he was not paying Rangdari (extortion
money) to them, asked him to pay Rangdari immediately, when
the informant and victim showed their incapability to fulfill
their demand, the appellants started assaulting them and
attempted to pick up and push the victim forcefully inside a
white colour car bearing registration No. BR 11M-4242 of Niraj
Yadav (appellant no. 1) then resistance was made by the
informant but he was threatened by the appellants by pointing
pistol at him. Prosecution’s further case is that the appellants
forcibly got the victim inside the car of appellant no.1 after
assaulting him and thereafter, they drove away the car towards
Ufrail Chowk and then the informant rushed behind their
vehicle by raising a hulla but the vehicle was diverted by the
appellants towards Mewalal Chowk and thereafter, the
informant went rushing to Maranga P.S. to inform the police
about occurrence and lodge the FIR. The further case of the
prosecution is that within three hours from the commission of
the abduction of the victim, the appellants were apprehended by
the police and in furtherance of the disclosure statement made
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by the appellant no. 1, the dead body of the victim was found
and recovered near the kamat of one namely, Rajendra Khirahari
and upon the dead body several injuries were found and there
was active bleeding from the nose, forehead and other parts of
the body and as per the inquest report (Ext.-4) the dead body
was recovered at 5:50 P.M.
4. On the basis of the written report filed by the PW-
4, the formal FIR bearing No. 517 of 2015 was registered at K.
Hat Maranga Police Station under Section 364A read with 34 of
IPC and later on Section 302 of IPC was added and the FIR set
the criminal law in motion.
5. After the completion of investigation, the
appellants were chargesheeted for the offences under Sections
364A, 302, 120B and 201 of IPC read with Section 34 of IPC.
6. The learned Chief Judicial Magistrate, Purnea, took
cognizance of the alleged offences and thereafter, committed the
case of the appellants to the court of Sessions.
7. The appellants stood charged for the offences
punishable under Sections 364A, 302 and 201 of IPC all read
with Section 34 of IPC and also charged with 120B of IPC. The
charges were read over and explained to them which they
denied and claimed to be tried for the charged offences.
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8. During trial, the prosecution examined altogether
nine witnesses in oral evidence who are as under:-
PW-1:- Anil Prasad Singh
PW-2:- Piyush Kumar Singh
PW-3:- Khagendra Prasad Sinha
PW-4:- Amit Ranjan, the informant
PW-5:- Dr. Parmanand Thakur
PW-6:- Mithilesh Kumar, Judicial Magistrate
PW-7:- Anil Kumar Gupta, Investigating Officer
PW-8:- Prashant Kumar Bhardwaj
PW-9:- Sanjay Kumar Singh
9. In documentary evidence, the prosecution proved
the following documents and got them marked as exhibits which
are as under:-
Ext.-1:- The signature of a witness namely, Anil
Prasad Singh over his statement recorded under Section 164 of
the Code of criminal procedure (in short ‘Cr.P.C.’)
Ext.-1/a:- The signature of the prosecution’s witness
namely, Piyush Kumar Singh upon his statement recorded under
Section 164 of Cr.P.C.
Ext.-1/b:- The signature of the prosecution’s witness
namely, Khagendra Prasad Sinha over his statement recorded
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Ext.-1/c:- The signature of the prosecution’s witness
namely,Amit Ranjan upon the inquest report
Ext.-1/d:- The signature of the informant namely,
Amit Ranjan upon his written report
Ext.-1/e:- The statement under Section 164 of Cr.P.C.
Ext.-2:- The Postmortem Report of the deceased
Ext.-3 & 3/a:- The forwarding endorsement made by
the concerned police official over the written report & other
endorsements made by the concerned police officials upon the
written report.
Ext.-4:- The Inquest Report
Ext.-5:- The Seizure Memo of blood stained grass
and soil
Ext.-5/a:- The Seizure Memo of a white colour
Maruti Ritz Car bearing registration No. BR 11M-4242
Ext.-6:- The confessional Statement of the
accused/appellant Niraj Yadav
Ext.-7:- The application filed by the investigating
officer to record the statement of the witness under Section 164
of Cr.P.C.
Ext.-8:- The photocopy of Station Case Diary Entry
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10. After the completion of prosecution’s evidences,
the statements of the accused/appellants were recorded under
Section 313 of Cr.P.C. giving them an opportunity to explain the
incriminating evidences appearing against them from the
prosecution’s evidences.
11. The appellants in their statements denied all the
incriminating evidences and took the specific defence that they
had been implicated in furtherance of a conspiracy and they
claimed themselves as innocent persons.
12. The appellants in their defence produced and
examined three witnesses who are as under:-
DW-1:- Shankar Poddar
DW-2:- Santosh Kumar Mehta
DW-3:- Mahanand Chaudhari
13. The appellants produced a Sale Deed bearing
Registration No. 11522 dated 26.10.2007 in their defence and
got it marked as Ext.-A.
Arguments on behalf of the appellants:-
14. Mr. Y.V. Giri, learned Senior Counsel appearing
for the appellants has argued that in actual, there is no eye-
witness of the alleged occurrence of abduction and there is
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serious contradiction among the testimonies of PW-1, PW-2 and
PW-3 who are said to be the eye-witnesses of the alleged
occurrence of abduction and PW-4 did not say anything
regarding the presence of other so-called eye-witnesses at the
time of the commission of the abduction of the victim at the
alleged place. Admittedly, there is no eye-witness of the alleged
occurrence of murder of the victim and in this regard, the
prosecution based its case on circumstantial evidences but the
prosecution failed to prove all the alleged circumstances to
complete the entire criminological chain of the alleged
occurrence of abduction and killing of the deceased and further,
the circumstances appearing from the prosecution’s evidences
upon which basis, the appellants have been held guilty of the
murder of the deceased/victim, are not of a conclusive nature
and all the important links to complete the entire chain of the
alleged occurrences from the beginning to end are missing. In
support of this submission, learned Senior Counsel has placed
reliance upon the judgment of Hon’ble Apex Court passed in the
case of Sharad Birdhichand Sarda Vs. State of Maharashtra
reported in (1984) 4 SCC 116.
15. Learned Senior Counsel has further argued that in
every offence, the motive of the accused assumes a great
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significance, particularly, where the case is based on
circumstantial evidence. In the present matter, the prosecution
has failed to prove the motive of the appellants to kill the victim
and merely by the factum of abduction of the victim by the
appellants, it cannot be presumed that the appellants had a
motive to kill the victim. In support of this submission, learned
Senior Counsel has placed reliance upon the judgment of
Hon’ble Apex Court passed in Sharad Birdhichand Sarda
(supra) which was also followed by the Hon’ble Patna High
Court in the case of Sunil Kumar Jha @ Sunil Jha Vs. The
State of Bihar reported in 2024 (4) BLJ 528.
16. It has been further argued that admittedly the dead
body of the victim was recovered from an open place and at the
time of recovery, the alleged place was accessible to all, so,
reliance cannot be placed upon the portion of the statement of
the appellant Niraj Yadav which is said to have led the police
party to the place where the dead body was lying and the
prosecution cannot take any benefit from such statement on the
basis of the provisions of Section 27 of the Evidence Act. In
support of this argument, learned Senior Counsel has placed
reliance upon the judgment of Hon’ble Apex Court passed in the
case of Manjunath and Others Vs. State of Karnataka
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reported in 2023 SCC OnLine SC 1421. Particularly, the
reliance has been placed upon the paragraph nos. 4.5 and 25 to
29 of the said judgment.
17. Learned counsel has further argued that as per the
prosecution’s case, the FIR was registered at 2:20 P.M. on
03.08.2015 and the inquest report of the deceased is said to have
been prepared at 5:50 P.M. on the same day and the postmortem
examination was conducted upon the dead body of the deceased
on the same day at 8:30 P.M. but these material documents do
not have the FIR number which shows and proves that the FIR
was registered after due deliberations, consultation and
afterthought and in the light of the principles laid down by the
Hon’ble Apex Court in the case of Meharaj Singh Vs. State of
U.P. reported in (1994) 5 SCC 188 both the said documents
(Ext. 2 and Ext. 4) cannot be deemed to be reliable and the same
casts a serious doubt in the prosecution’s story which entitles the
appellants to get a benefit of doubt.
18. Learned Senior Counsel has further argued that
the provisions of Section 157 of Cr.P.C. were not followed by
the police official of the concerned police station as the FIR,
after registering it, was sent to the Magistrate concerned after
inordinate delay which was not explained by the prosecution. In
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support of this submission, learned counsel has placed reliance
upon the judgment of Hon’ble Apex Court passed in the case of
Arjun Marik & Others Vs. State of Bihar reported in 1994
Supp(2) SCC 372 and the reference of the paragraph nos. ’24’
and ’25’ of the above judgment has been made.
Arguments on behalf of the State:-
19. On the contrary, Mr. Ajay Mishra, learned
Additional Public Prosecutor appearing for the State has
vehemently opposed this appeal and argued that the testimony
of PW-4 is completely reliable and the defence/appellants could
not have succeeded from the cross-examination of this witness
as well as PW-1 and PW-2 who are relatives of PW-4 to show
any inimical term between PW-4 and the appellants and there
was no reason for the informant (PW-4) to falsely implicate the
appellants in the alleged occurrence of abduction and murder of
the victim. It is an admitted position that the victim was
murdered, so, the first part of the occurrence relating to
abduction of the victim, can also be deemed to be reliable. As
the police officials of Maranga P.S. came into action
immediately after receiving the information of the offence of
abduction and immediately proceeded to the place of occurrence
after alerting the police officials of nearby police stations and all
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the proceedings as to going towards the place of the occurrence
from where the victim was abducted, the searching of the
victim, the arrest of the accused and recovery of the dead body
of the victim after recording the confessional statement of
appellant no. 1, completed within four hours and the material
documents such as the inquest report and the confessional
statement of appellant no. 1, were prepared at the spot, so, in
such a situation, particularly, when the concerned police
officials were in the field, it cannot be expected from them to
complete all the formalities such as mentioning of the FIR
number in the inquest report and other relevant documents of
the prosecution and further, the investigating officer was not
cross-examined on the said point and he could not get an
opportunity to explain the same.
20. Learned Addl. P.P. has further argued that no
inordinate delay took place in sending the FIR to the Magistrate
concerned as the FIR was registered at 2:20 P.M. on 03.08.2015
and the same was received in the court of learned C.J.M.,
Purnea, on 04.08.2015 at 12:05 P.M. and in this regard, the
formal FIR may be perused.
21. It has been further argued by learned Addl. P.P.
that though from the first part of the occurrence relating to
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abduction, it can be deemed that while committing the said
occurrence of abduction, the appellants might have only a
motive to abduct the victim but as the appellants were
surrounded by the police party of several police stations and
when they found themselves to be unable to extort any money
from the victim and then to destroy the main evidence of the
crime of abduction, they suddenly made-up their mind to kill the
victim and from the evidences, it can be deemed that the motive
to kill the victim suddenly arose in their minds on account of the
subsequent circumstances which were against the appellants.
22. Learned Addl. P.P. has further argued that though
there was some litigation in between PW-3 and the appellant
no.1, Niraj Yadav, at the time of commission of the alleged
offences but the presence of the said witness at the place of
abduction of the victim, was quite natural as the house of this
witness is situated adjacent to the alleged place of occurrence
and further, in the cross-examination, the appellants could not
prove any kind of intimacy between this witness and the family
of the victim, so, there was no reason for this witness to be
involved falsely with the informant in respect of the alleged
offences.
23. Learned Addl. P.P. has further argued that the
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most important evidence going against the appellants is the
recovery of the dead body of the victim in following with the
disclosure statement made by the appellant no. 1. Though, the
place from where the dead body was recovered, was an open
place but there is no material to show that the said place was
accessible to everyone and further, within 5 to 6 hours from the
abduction of the victim, the dead body of the victim was
recovered, so, the appellants cannot get a benefit merely on this
ground that the dead body was recovered from an open place.
Learned Addl. P.P. further submitted that the prosecution fully
succeeded to prove the arrest of the appellants at about 3:00
P.M., on the same day of the occurrence and in this regard, the
evidence of defence witness, DW-2, is also relevant and all the
main ingredients to make the portion of the confessional
statement of the appellant, Niraj Yadav @ Niraj Kumar
Chaudhri, leading to the recovery of the victim’s body,
admissible under Section 27 of the Evidence Act, are available
in this matter.
Consideration and Analysis:-
24. We have heard both the sides, perused the
judgment impugned and gone through the evidences available
on the trial court’s records and also gone through the statements
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of the appellants/accused recorded by them under Section 313
of Cr.P.C.
25. The main offences for which the appellants stood
charged relate to abduction for ransom and murder allegedly
committed by them with having common intention in respect of
the victim/deceased. There are mainly two parts of the alleged
occurrence. In the first part, the appellants allegedly abducted
the victim namely, Punit Kumar by putting him and his
companion in fear by showing a pistol with the help of a Maruti
Ritz Car bearing registration no. BR 11M- 4242 and the second
part relates to the recovery of the dead body of the victim.
26. While convicting the appellants for the charged
offences, the learned trial court mainly placed reliance upon the
evidences of Anil Prasad Singh (PW-1), Piyush Kumar Singh
(PW-2), Khagendra Prasad Sinha (PW-3) and the informant
(PW-4). These witnesses were considered as eye-witnesses of
the first part of the alleged occurrence.
27. From the prosecution story, the following
important facts emerge:-
(i) The alleged occurrence of abduction for the purpose
of ransom is said to have been committed near the house of the
appellant Niraj Yadav.
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(ii) At the time of occurrence, the victim Punit Kumar
who happened to be nephew of the informant, was coming with
the informant on a motorcycle.
(iii) The victim and the informant started their journey
at 12:30 P.M. from a CEAT Tyre Showroom on a motorcycle
and before that they were also together and going to the victim’s
home situated at Gokul Krishna Ashram Road.
(iv) On seeing the victim and informant, the appellants
firstly stopped the motorcycle of the victim and made an
extortion demand from them and threatened to kill them if their
demand was not fulfilled immediately.
(v) When the informant and the victim showed their
incapability to fulfill the demand of the appellants then the
appellants started assaulting them with saying to abduct the
victim with an intention to extort money from him. And then the
appellants forcefully put the victim into a white color Maruti
Ritz vehicle bearing registration No. BR 11M- 4242 and that act
was opposed by the informant and then the appellants took out
pistols and threatened to kill him and thereafter, the vehicle used
in the crime, was driven away by them towards Ufrail Chowk.
(vi) The informant chased the appellants’ vehicle with
raising hulla and saw that the appellants diverted their vehicle
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towards Mewalal Chowk from Ufrail Chowk and then the
informant went rushing to Maranga Police Station to inform the
police about the occurrence.
(vii) After getting the information of the occurrence,
the police officer concerned posted at Maranga P.S. ( K. Hat,
Purnea) immediately lodged an FIR and forwarded the
informant’s application (FIR) to K. Hat Police Station and
considering the seriousness of the occurrence and requirement
of prompt action, informed and alerted the Khajanchi P.S.,
Mufassil P.S., Sadar P.S., Inarwa P.S., Kasba P.S. and K. Hat
P.S. and he himself proceeded towards the place of occurrence
of first part with other police officials.
(viii) About three hours after the occurrence of abduction,
the police succeeded to intercept the vehicle detailed in the FIR,
near Maa Kaali Dhaba situated in western side of NH-57 falling
under Kasba Police Station and the appellants tried to flee but
they were apprehended by the police.
(ix) The Station House Officer ( in short ‘SHO’) of
K. Hat P.S. recorded the confessional statement of the appellant
Niraj Yadav just after his arresting and at that time, the police
officials of Maranga P.S. also arrived there.
(x) The seizure of the vehicle which was allegedly
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used by the appellants in abducting the victim was made by way
of seizure memo, Ext.- 5/a.
(xi) On the basis of disclosure made by the appellant
Niraj Yadav, the dead body of the victim Punit Kumar was
recovered near a farm house (Kamat) of one namely, Rajendra
Khirahari.
(xii) As per the inquest report, the dead body was
recovered at 5:10 P.M. and there was active bleeding from nose,
forehead and back portion of head of the deceased when the
body of the victim was found and some scratches were also
found on the back and chest of the deceased.
28. At first we would like to discuss the evidence of
PW-4, the informant, who is said to be the most important
witness of the prosecution.
The witness is said to be an uncle of the deceased so he is
a related witness. But merely by this fact his evidence cannot be
discarded. Though, his evidence is required to be scrutinized
carefully. The witness deposed in the examination-in-chief that
on 03.08.2015 at about 12:15 P.M., he and Punit (victim) started
on a motorcycle from a CEAT Tyre showroom towards their
house situated at Gokul Ashram road, when they reached in
front of the house of the accused/appellants, they were stopped
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by them and they said to the victim Punit that he earned much
money but did not pay any extortion money to them and then
they threatened to kill him if, their demand of extortion money
was not fulfilled. The witness further stated that when he and
victim Punit opposed to the act of the appellants then the
appellants started assaulting Punit (victim) and said that he
would be released only after fulfilling their demand of extortion
money, thereafter, they tried to put the victim forcefully inside
their vehicle, which was a white colour Maruti Ritz Car bearing
registration no. BR 11M- 4242, he resisted then both the
accused/appellants took out pistols and pointed the weapons at
him and also threatened to kill him by causing firearm injury
and the victim was forcefully taken inside the vehicle by the
appellants, after that, the appellant Niraj Yadav started driving
the vehicle and the appellant Kishore Yadav sat with the victim
in the vehicle. He further stated that after abduction, the
appellants went towards Ufrail Chowk and he also rushed
behind them with raising hulla and thereafter, he saw that the
accused diverted their vehicle towards Mewalal Chowk and
thereafter, he went rushing to Maranga Police station and
submitted his written application at the said police station. He
further stated that he returned back at the place of occurrence
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with the police and found one namely, Piyush Kumar Singh
(PW-2) being already present there and the police recorded the
statement of said Piyush Kumar and after that, the police went
towards Mewalal Chowk through Ufrail Chowk and after three
hours he knew that the accused had been apprehended and they
took the police at the place where the dead body of the victim
was lying and he also reached at Lalganj where the dead body
was lying. He further stated that the police prepared an inquest
before him upon which he made his signature. The witness
identified his signature upon the inquest report which was
marked as Ext.-1/c. The witness also identified his signature
upon the written report which was marked as Ext.-1/d. From the
discussion of the evidence deposed by this witness in the
examination-in-chief, we find his evidence being consistent
completely to the prosecution story narrated by him in the FIR.
The witness was cross-examined at length by the accused. In the
cross-examination he stated that he did not reside at Purandhata
and on 02.08.2015, he came at the house of Punit (victim) due
to his own work as he wanted to purchase some parts of tractor
and he had come in the evening of 02.08.2015 by a bus. He
further stated that he met Punit at his house and told him about
his work and earlier also, he had come at the house of Punit. He
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further stated in the cross-examination that he left the house of
the victim along with him on his motorcycle in the morning at
8:30 A.M., from the house they firstly went to the Bus Stand
Office of the victim where they stayed for one and a half hour
and from there, they went to CEAT Tyre showroom which is
situated three (03) km away from the office of the victim and
they stayed for two hours at the CEAT Tyre showroom and
thereafter, started returning back from the showroom through
NH-31 and Ufrail Chowk. From these stated facts the reason of
the presence of this witness with the victim clearly appears and
the acts which were done by him and victim between 8:30 A.M
to 12:00 P.M., were properly explained by him and the conduct
of both appears to be completely normal and does not create any
type of suspicion. He further stated in the cross-examination that
he rushed to Maranga police station and reached there within
20-25 minutes and recorded his statement and stayed there for
about half an hour and thereafter, came at the place of
occurrence with the police and Piyush (PW-2) was found at the
place of occurrence along with several others and police stayed
there for 20-25 minutes and after that, he went towards Ufrail
village in search of the victim and then went towards Mewalal
Chowk and at that time he was on his foot, where an unknown
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person told him that the police went towards Lalganj area. He
went from Mewalal Chowk to Lalganj and reached there
between 4:30 P.M. and 5:00 P.M., where he saw the dead body
of Punit lying at a parti land and blood was flowing from the
nose of the deceased and there was blood also on the land as
well as the clothes of the victim. He further stated in the cross-
examination that the first part of the occurrence took place at
12:30 P.M. and he did not inform the family members of the
victim as he had no phone with him at that time and at the time
of occurrence, the victim’s brother Pranav, grandparents were
not present who came next day and victim’s mother and Piyush
were only present at that time. He further deposed in the cross-
examination that he knew the accused Niraj Yadav since before
the occurrence. The witness gave the details of the properties of
the appellant Niraj Yadav.
From the facts stated by this witness in the cross-examination
which was done by the defence at length, we find that the
witness did not say anything which is contradictory to the above
mentioned relevant facts and his evidence completely remained
consistent to the prosecution story as well as the facts stated by
him in the examination-in-chief.
The appellants could not have succeeded to elicit any fact
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by cross-examining this witness to show him as an unreliable
witness. From the evidence of this witness it is also evident that
there was no any prior enmity in between the victim and the
appellants, so, there was no reason for this witness, who is
informant, to implicate the appellants falsely in the alleged
occurrence. Though, there was inimical relation in between the
appellants and Khagendra Prasad Sinha (PW-3) which will be
discussed later, on this point the witness was cross-examined by
giving the suggestion that he implicated the appellants falsely
on account of the said enmity which he flatly denied. On this
point, we would like to discuss the evidence of PW-3,
Khagendra Prasad Sinha. The witness deposed in the cross-
examination that he never visited the house of Punit (victim)
though he knew the father of the victim but he did not know the
fact regarding his ownership over the bus stand and he met
victim’s father twenty years ago at the bus stand. He further
stated that after the occurrence, he did not have any
conversation with any family member of the victim and he did
not know the relationship between the informant and victim’s
family. He further deposed in the cross-examination that he had
no talk (contact) with the informant and never travelled with
him and he did not go at the place where the dead body of the
Patna High Court CR. APP (DB) No.732 of 2016 dt.09-09-2024
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victim was found. From these facts, one thing is quite clear that
the said witness had no intimacy with the informant and the
victim’s family, so it is not believable that at the instance of
Khagendra Prasad Sinha (PW-3), the informant falsely
implicated the appellants in the alleged occurrence.
29. Learned Senior Counsel appearing for the
appellants has tried to impeach the credibility of PW-4, the
informant, on this ground that the witness knew English
language at the time of filing of the FIR as he made his
signature in English language upon his written report on that
basis, the FIR was registered but the contents of the FIR was
written in Hindi language and the witness remained silent about
the presence of any other person by whose help he got his
application written. We find no force in the said submission as it
is a common knowledge that many persons put their signature in
English language despite having no proper knowledge of
English. Moreover, the appellants did not cross-examine PW-4
on the said point and if he would have been cross-examined
then he might have explained the reason behind writing the
contents of his written application in Hindi language. Hon’ble
Apex Court in Laxmibai (dead) Thr. L.Rs. & Anr. vs.
Bhagwantbuva (dead) Thr. L.Rs. & Ors. reported in AIR
Patna High Court CR. APP (DB) No.732 of 2016 dt.09-09-2024
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2013 SC 1204 observed as under:-
“40. …If a party wishes to raise any doubt as
regards the correctness of the statement of a witness,
the said witness must be given an opportunity to
explain his statement by drawing his attention to
that part of it which has been objected to by the
other party as being untrue, without this it is not
possible to impeach his credibility and the
provisions of Section 138 of the Evidence Act
enable the opposite party to cross-examine a witness
as regards information tendered in evidence by him
during his initial examination-in-chief and the scope
of this provision stands enlarged by Section 146 of
the Evidence Act which permits a witness to be
questioned interalia in order to test his veracity,
thereafter, the un-challenged part of his evidence is
to be relied upon for the reason that it is impossible
for the witness to explain or elaborate upon any
doubts as regard the same, in the absence of
questions put to him with respect to the
circumstances which indicate that the version of
events provided by him is not fit to be believed,
thus, if a party intends to impeach a witness he must
provide adequate opportunity to the witness in the
witness-box to give a full and proper explanation
which is essential to ensure fair play and fairness in
dealing with witnesses. …”
Accordingly, in view of the above-mentioned principle laid
down by the Hon’ble Apex Court, the above contention raised
by the appellants’ counsel is not helpful to the appellants.
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30. The alleged occurrence is said to have taken place
at 12:30 P.M. and as per the evidence of the informant, he went
rushing to the police station just after the commission of the first
part of the occurrence and he reached the police station very
soon and the FIR was registered at 2:20 P.M., so the witness got
two hours to write the FIR or get his FIR written from any other
person which could be deemed to be a possible act. As the FIR
was registered within two hours from the commission of the
first part of the occurrence, so there was no possibility of the
fabrication of a false story with the false allegations against the
appellants by the informant as after an occurrence of abduction
which has been witnessed by one, the normal conduct of such
witness who happens to be a relative, would be to rush
immediately towards the police station to get the necessary help
and the same conduct was of the informant in this matter.
31. Accordingly, we find the FIR to be reliable and the
evidence of this witness (PW-4) with regard to the manner of
occurrence of first part, place of occurrence, number of the
accused, the weapons which were allegedly used by them and
the vehicle which was allegedly used by them in taking the
victim, regarding the direction towards the accused proceeded
after the abduction and regarding the place at where the dead
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body of the victim was found, is completely trustworthy and
reliable.
Though, the witness admittedly did not see the second part
of the occurrence relating to murder of the victim but his
evidence is completely reliable and sufficient to prove the first
part of the occurrence of abduction of the victim by the
appellants and it is a well settled principle that if two offences
particularly, the offence of abduction and thereafter, murder of
the abducted person are committed in the same sequence
without no much gap of time and prosecution succeeds to prove
the first part of the occurrence then the burden shifts on the
accused, who abducted the victim, to explain the circumstances
under which the victim died and in this regard, the observation
made by the Hon’ble Apex Court in the case of Paramsivam &
Others Vs. State through Inspector of Police reported in
(2015) 13 SCC 300 is very relevant and the same is being
reproduced as under :-
“25. When deceased is shown to be abducted, it is
for the abductors to explain how they dealt with the
abducted victim. In the absence of explanation, the
court is to draw inference that abductors are the
murderers.”
While laying down the above principle, the Hon’ble Court
took into account the observation made by the Hon’ble Apex
Patna High Court CR. APP (DB) No.732 of 2016 dt.09-09-2024
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Court in the case of Sucha Singh vs. State of Panjab, (2001) 4
SCC 375 in which the similar principle was laid down. The
same situation is available in the present matter as the evidence
of this witness (PW-4) is completely reliable and sufficient to
prove the first part of the occurrence having been committed by
the appellants with the victim and the appellants could not have
been able to explain their innocence in the commission of the
murder of the deceased who was in their possession and
captivity during the last hours of his life.
32. So far as the evidence of PW-1 and PW-2 is
concerned, though both the witnesses claimed themselves to be
eye-witnesses of the first part of the occurrence but they do not
seem to be eye-witnesses of the first part of the occurrence and
in this regard, their own statements are relevant.
33. It has come in the evidence of PW-3 that the
house of the victim is situated about one kilometer away from
the place where the first part of the occurrence was committed.
PW-1 who happens to be a relative of the victim, deposed in the
chief-examination that at about 12:00 noon, he and Piyush (PW-
2) were sitting in the house of the victim then they heard a hulla
and thereafter, they rushed towards behind K.P. Market and saw
the appellants assaulting the victim. The evidence of PW-4
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reveals that the alleged occurrence of abduction and assault took
place for some minutes only but regarding the presence of PW-1
and PW-2 at the time of commission of the first part of the
occurrence, no supportive fact was revealed by the informant
(PW-4) and furthermore, it was not possible for PW-1 and 2 to
reach immediately at the place of occurrence within a few
minutes. Further, the evidence of PW-2 is contradictory to the
evidence of PW-4 as he deposed that when he tried to save the
victim the accused pointed the pistol at him. No such evidence
has been given by the PW-4. PW-2 stated that at the time of
occurrence, he was present behind the K.P. Market and he
deposed in the cross-examination that the information regarding
the commission of the occurrence was firstly given on the
mobile phone of his sister, namely, Poonam and then he rushed
towards the place of occurrence and on the way, he did not talk
with anyone. The said evidence is contradictory to PW-1 and
also shows that he reached at the place of occurrence of first
part some minutes after the happening of the occurrence.
34. Accordingly, we find PW-1 and PW-2 to be not
eye-witnesses of the first part of the occurrence and the learned
trial court erred in deeming both the said witnesses as eye-
witnesses but however, the evidence of both the witnesses
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regarding the immediate subsequent events such as the act of
searching for the victim after his abduction, by them, informant
and the police, is relevant and to this extent corroborative to
prosecution story.
35. The prosecution witness, PW-3, claimed himself
to be an eye-witness of the alleged occurrence of abduction of
the victim. So far as the reliability of this witness is concerned,
though he has accepted in his evidence that there was litigation
in between him and the appellant Niraj Yadav which shows an
inimical relation in between the said appellant and this witness
and the same can be deemed to be a ground to put a question on
the reliability of this witness but there are two circumstances
which persuade us to deem this witness to be reliable to some
extent. Firstly, the house of this witness is said to be situated
near the place of occurrence of abduction, so, his presence near
the place of occurrence can be deemed to be natural. Secondly,
he was cross-examined at length with regard to the intimacy
with the prosecution party but the accused failed to elicit any
fact to show his closeness with informant and other non-official
witnesses of the prosecution. So, in such a situation, there was
no reason for this witness to become a false witness at the
direction of the informant and others. Thirdly, the witness fully
Patna High Court CR. APP (DB) No.732 of 2016 dt.09-09-2024
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supported the prosecution’s case in the examination-in-chief and
in the cross-examination, he did not reveal any fact being
contradictory to the incident of abduction which was witnessed
by him as per his claim. The witness also recorded his statement
under Section 164 of Cr.P.C. in which he also remained
consistent to the allegations of the first part of the prosecution
story and the said statement is corroborative to his testimony
given before the trial court. Further, if PW-3 was made a witness
of the prosecution by way of an afterthought by the prosecution
party then in such a situation his details as a witness could have
been given in the FIR but in this regard, the informant remained
silent which shows the naturality of his act of rushing towards
the police station to lodge the FIR. So, in view of these
circumstances, PW-3 can be deemed to be a reliable witness of
prosecution and his evidence is supportive to the prosecution’s
case.
36. In this matter, the second part of the prosecution
story relates to the recovery of the dead body of the victim. As
per the prosecution, the dead body of the victim was recovered
in the light of the disclosure statement made by the appellants
and in this regard, the confessional statement of the appellant
Niraj Yadav was recorded by the police and thereafter, police
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proceeded towards the place where the dead body was thrown
by the appellants. As per the prosecution, the portion of the
confessional statement of the appellant Niraj Yadav which
disclosed the location of the dead body as well as lead to the
recovery of the dead body by the police is an admissible
evidence under the provisions of Section 27 of the Evidence
Act.
37. Learned Senior Counsel appearing for the
appellants has argued that the so-called disclosure of the
appellant Niraj Yadav which is said to have led the police party
to the place where the dead body was found, is not an
admissible evidence as the alleged place of recovery was an
open place and accessible to everyone and further the
investigating officer did not give the complete description of the
conversation between him and the appellant with respect to the
alleged disclosure statement. In support of this submission,
learned counsel has placed reliance upon the judgment of
Hon’ble Apex Court passed in the case of Manjunath &
Others Vs. State of Karnataka reported in 2023 SCC OnLine
SC 1421 and has referred to the following paragraphs of the
said judgment which are as under:-
” 25. The next aspect is the recovery of the
alleged weapons, we have noted the
Patna High Court CR. APP (DB) No.732 of 2016 dt.09-09-2024
33/58particulars thereof while discussing the
findings of the Trial Court. Such recoveries
were discarded by the trial court stating that
the clubs were recovered from a place
accessible to the public and, the chopper and
the rods were recovered from a house where
other persons were also residing which
compromises the sanctity of such recovery
and takes away from the veracity thereof.
26. Further discovery made, to be one
satisfying the requirements of Section 27,
Indian Evidence Act it must be a fact that is
discovered as a consequence of information
received from a person in custody. The
conditions have been discussed by the Privy
Council in Pulukuri Kotayya v. King
Emperor38 and the position was reiterated by
this Court in Mohd. Inayatullah v. State of
Maharashtra39, in the following terms:–
“12…It will be seen that the first condition
necessary for bringing this section into operation
is the discovery of a fact, albeit a relevant fact,
in consequence of the information received from
a person accused of an offence. The second is
that the discovery of such fact must be deposed
to. The third is that at the time of the receipt of
the information the accused must be in police
custody. The last but the most important
condition is that only “so much of the
information” as relates distinctly to the fact
38. 1946 SCC OnLine PC 47
39. (1976) 1 SCC 828
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thereby discovered is admissible. The rest of
the information has to be excluded. The
word “distinctly” means “directly”,
“indubitably”, “strictly”, “unmistakably”.
The word has been advisedly used to limit
and define the scope of the provable
information. The phrase “distinctly relates to
the fact thereby discovered” is the linchpin
of the provision. This phrase refers to that
part of the information supplied by the
accused which is the direct and immediate
cause of the discovery…”
(Emphasis supplied)
27. Prima facie, in the present facts, the 3
conditions above appear to be met. However,
the Trial Court held, given that the
discoveries made were either from a public
place or from an area where other persons
also resided, reliance thereupon, could not
be made. We find this approach of the trial
court to be correct.
27.1 This court has, in various judgments,
clarified this position. Illustratively, in
Jaikam Khan v. State of U.P.40 it was
observed:–
“One of the alleged recoveries is from the
room where deceased Asgari used to sleep.
The other two recoveries are from open
field, just behind the house of deceased
Shaukeen Khan i.e. the place of incident. It
40. (2021) 13 SCC 716
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35/58could thus be seen that the recoveries were
made from the places, which were accessible
to one and all and as such, no reliance could
be placed on such recoveries.”
(Emphasis supplied)
27.2 Also, in Nikhil Chandra Mondal v.
State of W.B.41 the Court held:–
“20. The trial court disbelieved the
recovery of clothes and weapon on two
grounds. Firstly, that there was no
memorandum statement of the accused as
required under Section 27 of the Evidence
Act, 1872 and secondly, the recovery of the
knife was from an open place accessible to
one and all. We find that the approach
adopted by the trial court was in accordance
with law. However, this circumstance which,
in our view, could not have been used, has
been employed by the High Court to seek
corroboration to the extra-judicial
confession.”
(Emphasis supplied)
28. As reflected from record, and in
particular the testimony of PW-15 it is clear
that the discoveries (stick as shown by A10,
for instance) was a eucalyptus stick, found
from the eucalyptus plantation, which
indisputably, is a public place and was found
a week later. A second and third stick
purportedly found half kilometre away on
41. (2023) 6 SCC 605
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that day itself, was found by a bush, once
again, a place of public access. Two further
sticks recovered at the instance A6 and A7,
were also from public places. An iron chain
produced from the house of A1 and A2, is
not free from the possibility that any of the
other occupants of their house were not
responsible for it. We, further cannot lose
sight of the fact that sticks, whether bamboo
or otherwise, are commonplace objects in
village life, and therefore, such objects,
being hardly out of the ordinary, and that too
discovered in places of public access, cannot
be used to place the gauntlet of guilt on the
accused persons…”
38. We find no force in the above contention as there
are some strong circumstances to believe the recovery of the
dead body of the victim on the basis of the disclosure statement
made by the appellant Niraj Yadav. Firstly, within five hours
from the alleged time of abduction of the victim, victim’s dead
body was recovered. Secondly, the prosecution’s witnesses
remained firm and consistent regarding the direction towards
which the victim was taken away by the appellants. Thirdly, as
per the investigating officer, all the nearby police stations were
alerted by the Maranga P.S. just after receiving the information
of occurrence and several police parties proceeded in search of
the victim and accused and in that course, the appellants were
Patna High Court CR. APP (DB) No.732 of 2016 dt.09-09-2024
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apprehended near Maa Kali Dhaba at about 3:00 P.M. and the
vehicle which was used by them in carrying the victim after his
abduction, was also recovered at the spot and the same was
seized by way of seizure memo (Ext.- 5/a) and the appellants
were arrested. In order to make a disclosure of an accused, with
regard to the presence of a relevant fact, admissible, it must be
proved that such accused was in police custody when he made
the statement. In the instant matter, the investigating officer
(PW-7), proved the arrest of the accused/appellants before the
recovery of the dead body and the important thing is that the
defence witness DW-2, Santosh Kumar Mehta, stated that on
03.08.2015, the date of occurrence, he knew that the appellants
had been apprehended by the police between 3:00 P.M. to 4:00
P.M. and after the arrest they were taken by the police towards
the farm house (Kamat). In the cross-examination, the witness
stated that he heard about the arresting of the accused near Maa
Kali Dhaba. So, the evidence of this defence witness is
corroborating the factum of arrest of the appellants in between
3:00 P.M. to 4:00 P.M. on the alleged day of occurrence. The
dead body of the deceased was recovered at about 5:50 P.M. on
the same alleged day. So far as the place of recovery is
concerned, the dead body was recovered near a farm house
Patna High Court CR. APP (DB) No.732 of 2016 dt.09-09-2024
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(Kamat) of one namely, Rajendra Khirahari. Though, the said
place can be deemed to be an open place but the appellants
could not succeed in eliciting any fact from the investigating
officer to show that the said place was in the visibility of others
in normal circumstances. In this regard, the Hon’ble Apex Court
in the Case of State of Himachal Pradesh Vs. Jeet Singh
reported in (1999) 4 SCC 370 observed as under:-
” 26. There is nothing in Section 27 of the Evidence
Act which renders the statement of the accused
inadmissible if recovery of the articles was made
from any place which is “open or accessible to
others”. It is a fallacious notion that when recovery
of any incriminating article was made from a place
which is open or accessible to others, it would
vitiate the evidence under Section 27 of the
Evidence Act. Any object can be concealed in places
which are open or accessible to others. For example,
if the article is buried in the main roadside or if it is
concealed beneath dry leaves lying on public places
or kept hidden in a public office, the article would
remain out of the visibility of others in normal
circumstances. Until such article is disinterred, its
hidden state would remain unhampered. The person
who hid it alone knows where it is until he discloses
that fact to any other person. Hence, the crucial
question is not whether the place was accessible to
others or not but whether it was ordinarily visible to
others. If it is not, then it is immaterial that the
concealed place is accessible to others.”
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The above principle has been reiterated by the Hon’ble
Apex Court in the case of Lochan Shrivas Vs. State of
Chhatishgarh (2022) 15 SCC 401.
39. There is one more important circumstance which
goes in favour of the prosecution with regard to the credibility
of the recovery of the dead body in the light of the disclosure
statement made by the appellant Niraj Yadav. The alleged
occurrence of abduction is said to have been committed at about
12:30 P.M. which has been established by the evidence of PW-3
and PW-4 and the factum of police custody of the appellants
before the recovery of the dead body has also been proved by
the I.O. as well as the defence witness namely, Santosh Kumar
Mehta (DW-2) and the dead body was recovered at about 5:50
P.M. So, all these events took place within six hours and at the
time of recovery of the dead body, there was active bleeding
from the nose and forehead of the deceased which shows that he
had been killed just some hours before the recovery and the
evidence of PW-4 is sufficient to prove that the victim was in
the captivity of the appellants during the last hours of his life.
Accordingly, we find no force in the above contention of the
appellants’ counsel as the facts and circumstances of the present
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matter are quite different from the cited case in which the
provisions of Section 27 of the Evidence Act were seen in
different context.
40. Learned counsel for the appellants has argued that
in the present matter, there is no direct evidence to prove the
killing of the victim by the appellants and the prosecution’s case
with regard to the alleged murder of the victim is based on
circumstantial evidence but the prosecution failed to establish
all the circumstances completing the criminological chain of the
alleged offences. In support of this submission, learned Senior
Counsel has placed reliance upon the judgment of Hon’ble Apex
Court passed in the case of Sharad Birdhichand Sarda Vs.
State of Maharashtra reported in (1984) 4 SCC 116 and has
referred to the paragraph no. 153 of the said judgment which is
being reproduced as under:-
” 153. A close analysis of this decision would show
that the following conditions must be fulfilled
before a case against an accused can be said to be
fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
It may be noted here that this Court indicated that
the circumstances concerned “must or should” and
not “may be” established. There is not only a
grammatical but a legal distinction between “may
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be proved” and “must be or should be proved” as
was held by this Court in Shivaji Sahabrao Bobade
v. State of Maharashtra19 where the following
observations were made: [SCC para 19, p. 807:
SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental
distance between ‘may be’ and ‘must be’ is
long and divides vague conjectures from sure
conclusions.”
(2) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with the
innocence of the accused and must show that
in all human probability the act must have
been done by the accused.”
41. No doubt, in the present matter, there is no eye-
witness of the commission of the murder of the deceased but all
the relevant circumstances from the beginning of the occurrence
19. (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783
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and till the recovery of the dead body of the deceased have been
proved by the prosecution in this matter. First circumstance
relates to the abduction of the victim by the appellants by using
a white colour car and in this regard, the evidence of PW-3 and
PW-4 is very relevant. Second circumstance relates to taking the
victim forcefully by the appellants with the help of the car of
appellant no.1 towards Ufrail Chowk and then diverting towards
Mewalal Chowk. The said circumstance has also been proved
by PW-3 and PW-4. Third circumstance relates to the swift
action by the police on getting the information of abduction
which has been proved by the I.O. himself (PW-7). Fourth
circumstance relates to the arresting of the accused/appellants
within some hours from the commission of the abduction. The
circumstance has been proved by the I.O. and the same finds
support from the defence witness Santosh Kumar Mehta (DW-
2). Fifth circumstance relates to the recovery of the vehicle
which was used in carrying the victim which has also been
proved by the I.O. and there is nothing against his evidence with
regard to the recovery of the said vehicle with the accused. Sixth
circumstance relates to the recovery of the dead body of the
deceased in the light of the disclosure made by the appellants.
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The prosecution proved the disclosure statement of the appellant
Niraj Yadav and also proved the recovery of the dead body of
the victim at the place which was disclosed by the appellant,
Niraj Yadav, in his statement. Accordingly, all the material and
relevant circumstances to complete the entire criminological
chain of both the parts of the alleged occurrences, have been
fully established by the prosecution’s evidences and the same
are sufficient to conclude the involvement of the appellants in
the commission of abduction and killing of the victim. Further
the occurrence of abduction has been established by the
prosecution by the direct evidence of PW-3 and PW-4 and it is
settled principle of law that when it is proved to the satisfaction
of the court that the victim was abducted by the accused and
then the accused alone knew what happened to the victim, if the
victim was found murdered within a short time after the
abduction then the court may draw the presumption that the
accused has/have murdered the victim. In this regard, the
observation made by the Hon’ble Apex Court in the case of
State of W.B. vs. Mir Mohammad Omar and Others reported
in (2000) 8 SCC 382 is relevant which is being reproduced as
under :-
” 34. When it is proved to the satisfaction of the
Court that Mahesh was abducted by the accused
Patna High Court CR. APP (DB) No.732 of 2016 dt.09-09-2024
44/58and they took him out of that area, the accused
alone knew what happened to him until he was with
them. If he was found murdered within a short time
after the abduction the permitted reasoning process
would enable the Court to draw the presumption
that the accused have murdered him. Such inference
can be disrupted if the accused would tell the Court
what else happened to Mahesh at least until he was
in their custody.”
Accordingly, we find no force in the above contention of the
appellants’ counsel.
42. It has been further argued by the appellants’ counsel
that in the cases of circumstantial evidence, the motive of the
accused has to be established and in the present matter, the
motive of the appellants to kill the victim has not been
established.
43. We find no force in the above contention of
appellants’ counsel as the prosecution succeeded to prove the
first part of the occurrence by adducing the direct evidence to
show that the appellants with an intention to extort money from
the victim, firstly stopped him and when he did not accept their
demand then he was forcefully taken by the appellants by a car
with an intention to get money in the form of ransom from the
victim’s family. There is sufficient evidence to prove these
alleged facts which clearly indicate that the appellants killed the
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victim when they found that it was not possible for them to get
money from the victim or his family due to the alertness of the
police party of several police stations. Hon’ble Apex Court in
the case of Jeet Singh (supra) observed as under:-
“33. ….. Though, it is a sound of proposition that
every criminal act is done with a motive, it is
unsound to suggest that no such criminal act can be
presumed unless motive is proved. After all, motive
is a psychological phenomenon. Mere fact that
prosecution failed to translate that mental
disposition of the accused into evidence does not
mean that no such mental condition existed in the
mind of the assailant.”
44. In the present matter, the prosecution succeeded
to prove the first criminal act of the appellants relating to
abduction which shows their intention to commit an offence and
just some hours after the commission of abduction, the dead
body of the victim was recovered in following with the
disclosure made by the appellants and the alleged vehicle was
also recovered at the spot in the possession of the appellants
which are sufficient to prove the criminal psychology of the
appellants and also to show that after abduction, they
immediately made up their mind to commit the murder of the
victim with a motive to destroy the main evidence of the
abduction on account of finding themselves to be not able to
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extort money from the victim or his family.
45. It has been argued by learned counsel for the
appellants that there is no details of the FIR number in the
inquest report as well as postmortem report which is sufficient
to prove that the FIR of the instant matter was lodged after due
deliberation and consultation. In support of this submission,
learned counsel has placed reliance upon the judgment of the
Hon’ble Apex Court passed in the case of Meharaj Singh Vs.
State of U.P. reported in (1994) 5 SCC 188 and has referred to
the Paragraph No. 12 of the said judgment which is being
reproduced as under : –
” 12. FIR in a criminal case and particularly in a
murder case is a vital and valuable piece of
evidence for the purpose of appreciating the
evidence led at the trial. The object of insisting
upon prompt lodging of the FIR is to obtain the
earliest information regarding the circumstance in
which the crime was committed, including the
names of the actual culprits and the parts played by
them, the weapons, if any, used, as also the names
of the eyewitnesses, if any. Delay in lodging the
FIR often results in embellishment, which is a
creature of an afterthought. On account of delay, the
FIR not only gets bereft of the advantage of
spontaneity, danger also creeps in of the
introduction of a coloured version or exaggerated
story. With a view to determine whether the FIR
Patna High Court CR. APP (DB) No.732 of 2016 dt.09-09-2024
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recorded, the courts generally look for certain
external checks. One of the checks is the receipt of
the copy of the FIR, called a special report in a
murder case, by the local Magistrate. If this report
is received by the Magistrate late it can give rise to
an inference that the FIR was not lodged at the time
it is alleged to have been recorded, unless, of course
the prosecution can offer a satisfactory explanation
for the delay in despatching or receipt of the copy
of the FIR by the local Magistrate. Prosecution has
led no evidence at all in this behalf. The second
external check equally important is the sending of
the copy of the FIR along with the dead body and
its reference in the inquest report. Even though the
inquest report, prepared under Section 174 CrPC, is
aimed at serving a statutory function, to lend
credence to the prosecution case, the details of the
FIR and the gist of statements recorded during
inquest proceedings get reflected in the report. The
absence of those details is indicative of the fact that
the prosecution story was still in an embryo state
and had not been given any shape and that the FIR
came to be recorded later on after due deliberations
and consultations and was then ante-timed to give it
the colour of a promptly lodged FIR. In our
opinion, on account of the infirmities as noticed
above, the FIR has lost its value and authenticity
and it appears to us that the same has been ante-
timed and had not been recorded till the inquest
proceedings were over at the spot by PW 8.”
46. Though in the present matter, there is no details of
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the FIR number in the inquest report and postmortem report of
the deceased but we find a reasonable explanation from the
prosecution’s evidence for non-mentioning of the FIR number in
both the documents. As the instant matter relates to abduction
and the informant (PW-4) who witnessed the abduction, went
rushing to the police station to inform the police about the
occurrence of abduction and upon getting the said information,
the police of Maranga police station swung into action and also
informed the police of adjoining police stations and immediately
proceeded to search for the victim and accused and after making
an endorsement on the written report of the informant,
forwarded the same to K. Hat police station and these
proceedings were done immediately by PW-7. The formal FIR
was registered at 2:20 P.M. and the victim’s dead body was
recovered at 5:50 P.M. on the same day as reflects from the
inquest report and the same shows that since the time of
receiving of the FIR and making the recovery of the dead body,
the police officials concerned got only about three and a half
hours and during that period of time, the police officials of the
concerned police station remained in the field in search of the
victim and accused and during that course, apprehended the
accused, recorded the statement of appellant Niraj Yadav and
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then recovered the dead body of the deceased and alleged
vehicle. So, in such circumstances happened fastly, if the
concerned police official did not mention the FIR number in the
inquest memo then the same can not be deemed to be a material
fault on the part of the said police official and the postmortem
examination was done at 8:30 P.M., just two and a half hours
after the recovery of the dead body, so, during that period of
time, it can be deemed that the police officials and the Doctor
concerned, did not get sufficient time to mention the details of
the FIR number and the same can be deemed to be a reasonable
explanation for non-mentioning of the FIR number in the
inquest report and postmortem report. Further it is a well settled
law that the inquest report and postmortem report cannot be
termed to be substantive evidence and any discrepancy
occurring therein can neither be termed to be fatal nor even a
suspicious circumstance which would warrant a benefit to the
accused and the resultant dismissal of the prosecution case, as
the contents of the inquest report cannot be termed as evidence
though they can be looked into to test the veracity of the
witnesses. In this regard, the principle laid down by the Hon’ble
Apex Court in Paragraph No. 23 of the judgment passed in the
case of Shambhu Das Alias Bijoy Das And Another vs. State
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of Assam reported in 2010 (10) SCC 374 is relevant. Paragraph
’23’ of Shambhu Das (supra) reads as under:-
” 23. Inquest report and post-mortem report cannot be
termed to be substantive evidence and any discrepancy
occurring therein can neither be termed to be fatal nor
even a suspicious circumstance which would warrant a
benefit to the accused and the resultant dismissal of the
prosecution case. The contents of the inquest report
cannot be termed as evidence, but they can be looked
into to test the veracity of the witnesses. When an
officer in charge of the police station receives
information that a person had committed suicide or has
been killed or died under suspicious circumstances, he
shall inform the matter to the nearest Magistrate to hold
an inquest. A criminal case is registered on the basis of
the information and investigation is commenced under
Section 157 CrPC and the information is recorded under
Section 154 CrPC and, thereafter, the inquest is held
under Section 174 CrPC.”
47. Recently, in the case of Chotkau vs. State of
Uttar Pradesh reported in (2023) 6 SCC 742, the Hon’ble
Supreme Court has observed as under:-
69. On the question of compliance of Section 157(1)
along with logical reasoning for doing so, the following
passage from the decision in Jafarudheen v. State of
Kerala Jafarudheen v. State of Kerala8 may be usefully
quoted as under (paragraph 28 and 29):-
28. The jurisdictional Magistrate plays a
pivotal role during the investigation process.
8. (2022) 8 SCC 440 : (2022) 3 SCC (Cri) 436
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and fair. The investigating officer is to keep
the Magistrate in the loop of his ongoing
investigation. The object is to avoid a
possible foul play. The Magistrate has a role
to play under Section 159CrPC.
29. The first information report in a
criminal case starts the process of
investigation by letting the criminal law
into motion. It is certainly a vital and
valuable aspect of evidence to corroborate
the oral evidence. Therefore, it is
imperative that such an information is
expected to reach the jurisdictional
Magistrate at the earliest point of time to
avoid any possible ante-dating or ante-
timing leading to the insertion of materials
meant to convict the accused contrary to the
truth and on account of such a delay may
also not only get bereft of the advantage of
spontaneity, there is also a danger creeping
in by the introduction of a coloured version,
exaggerated account or concocted story as a
result of deliberation and consultation.
However, a mere delay by itself cannot be a
sole factor in rejecting the prosecution’s
case arrived at after due investigation.
Ultimately, it is for the court concerned to
take a call. Such a view is expected to be
taken after considering the relevant
materials.”
Further, in the case of Hari Prasad @ Kishan Sahu vs.
State of Chhattishgarh reported in (2024) 2 SCC 557, the
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Hon’ble Supreme Court in paragraph ’10’ of its judgment has
held as under:-
10. Of course, the delay in lodging an FIR by itself
cannot be regarded as the sufficient ground to draw an
adverse inference against the prosecution case, nor could
it be treated as fatal to the case of prosecution. The court
has to ascertain the causes for the delay, having regard to
the facts and circumstances of the case. If the causes are
not attributable to any effort to concoct a version, mere
delay by itself would not be fatal to the case of
prosecution.
Accordingly, we find no force in the above contention and
the principles laid down by the Hon’ble Apex Court in the
above referred judgment do not help the appellants.
48. It has been further argued by the appellants’
counsel that there was an inordinate delay in sending the FIR by
the police to the concerned Magistrate and the provision of
Section 157 of Cr.P.C. was violated by the police and the same
can also be deemed to be a ground to suspect the commission of
the alleged offences. In this regard, reliance has been placed by
the appellants’ counsel on the case of Arjun Marik and
Others. Vs. The State of Bihar reported in (1994) Supp(2)
SCC 372 decided by the Hon’ble Apex Court.
49. We find no force in the above submission as in the
instant matter, the FIR was registered on 03.08.2015 at 2:20
P.M. and till the late evening, the police remained busy in
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recovering the victim’s body and postmortem examination over
the body and just next day i.e. on 04.08.2015, the copy of the
FIR was sent to the Chief Judicial Magistrate, Purnea and the
same was received on that day at 12:05 P.M. which shows that
there was no inordinate delay in sending the FIR to the
Magistrate concerned by the police. Further, nothing was put to
the investigating officer as regards the alleged delay in sending
the FIR to the Magistrate and/or that an a prejudice was caused
to the appellants on that account. If the investigating officer
would have been cross-examined with regard to the said delay
then he might have explained the reason for the delay, so, in the
absence of cross-examination on the said point, the appellants
cannot take any benefit. In this regard, the observation made by
the Hon’ble Apex Court in paragraph No. 26 of the judgment
passed in the case of Manga Alias Man Singh Vs. State of
Uttarakhand reported in 2013 (7) SCC 629 is relevant. The
same is being extracted hereunder for a ready reference :-
“26. In the case on hand nothing was put to PW 13
(investigating officer) as regards the alleged delay in
sending the FIR to the Magistrate and/or that any
prejudice was caused to the appellants on that account.
It would have enabled the investigating officer to
explain the reason for the delay. In any event nothing
has been shown as to any prejudice caused to the
appellants on the ground of alleged delay in sending a
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Accordingly, we find no force in the above contention of the
appellants’ counsel.
Conclusion:-
50. After having discussed the evidences available on
the case records of the trial court and also taking into account
the arguments advanced by both the sides, we are of the
considered view that the evidence of PW-4, the informant, is
completely reliable to prove the first part of the occurrence
relating to the abduction of the victim as the appellants/accused
did not succeed to elicit any fact from this witness as well as
PW-1 and PW-2, who are said to be the relatives of the
informant, to show any kind of inimical term in between the
victim or victim’s family and the accused/appellants, so, there
was no reason for the informant (PW-4) to implicate the
appellants falsely in the alleged occurrence of abduction and as
the victim was admittedly murdered just within three hours from
the commission of his abduction and at the time of recovery of
the dead body, there was active bleeding from some parts of the
body of the deceased, so, in such a situation, the allegation as to
the commission of the abduction of the victim can be deemed to
be reliable. There is no serious contradiction in between the
facts of the FIR narrated by the informant and his evidence and
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the appellants did not succeed in eliciting any fact from the
cross-examination to impeach his credibility and
trustworthiness, though, in view of the facts stated by PW-1 and
PW-2 both the said witnesses cannot be deemed to be eye-
witnesses of the first part of the occurrence but their evidence is
also relevant to some extent in respect of the events which
happened subsequent immediately just after the commission of
the abduction. Though, PW-3 was having some litigation and
dispute with appellant no. 1 at the time of commission of the
alleged offences but his presence at the alleged place of
abduction of the victim, was quite natural as his house is
situated adjacent to the said place of occurrence and further, he
did not reveal any kind of intimacy with the prosecution party as
well as victim’s family and his evidence seems reliable and goes
in favour of the prosecution. The most important evidence going
against the appellants is the recovery of the dead body of the
deceased in following with the disclosure statement made by the
appellant no.1 and the prosecution succeeded to prove the
arresting of the appellants at about 3:00 P.M. on the day of the
occurrence of abduction and recording of the statement of
appellant no. 1 and thereafter, recovering of the dead body near
the farm house (Kamat) of one namely, Rajendra Khirahari and
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it has come into light in the evidence of I.O. (PW-7) that the
farm house (Kamat) of the appellant no. 1 was situated at the
distance of 300 to 400 Gaj (Yards) from the place at where the
dead body of the victim was lying and from the evidence of the
I.O. it does not appear that the place where the dead body of the
victim was lying, was in the approach and visibility of everyone
and as all the events from abduction of the victim, searching of
the victim and appellants, recovery of the dead body of the
victim, took place within 5 to 6 hours from the starting point of
the time of occurrence, so, in such a situation, the statement of
appellant no.1 leading to the recovery of the dead body cannot
be thrown out merely on this ground that the recovery of the
dead body was made from an open place. In view of the
occurrence of abduction of the victim by the appellants which
has been established by the evidence of PW-4, it can be deemed
that the motive/intention to kill the victim arose in the mind of
the appellants suddenly just one or two hours after the
commission of the abduction when they found themselves to be
unable to extort any money from the victim and not able to hide
the victim due to the alertness of the police officials of many
police stations and further, the appellants could not have
explained the circumstance as to how the victim died while he
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was in their captivity during the last moments of his life.
Accordingly, we find no merit in this appeal and the conclusion
of the trial court in holding the appellants guilty of the alleged
offences for which they were charged, appears to be proper and
correct and there is no reason to interfere in the said conclusion
of the learned trial court.
51. In the result, the impugned judgment of conviction
and order of sentence are hereby affirmed and the instant appeal
stands dismissed.
52. The Appellant No.1, Niraj Yadav @ Niraj Kumar
Chaudhri is on bail for a period of four (04) months on medical
ground by virtue of order dated 07.08.2024 passed by the
Hon’ble Supreme Court in SLP (Crl) No(s). 9601/2024 so, after
the expiry of the provisional bail period, the said appellant shall
surrender in the court below and serve the remaining part of his
sentence awarded by the trial court unless the provisional bail
period is extended by the Hon’ble Supreme Court or an
otherwise relief is granted to him by the Hon’ble Supreme
Court. If the Appellant No.1 fails to surrender after the expiry of
provisional bail period or the extended period as the case may
be, the learned trial court shall procure the presence of the
Appellant No.1 in accordance with law.
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53. Let the judgment’s copy be sent to jail
Superintendent and the trial court concerned for information and
needful.
54. Let the trial court’s records be sent forthwith to
the court concerned.
( Shailendra Singh, J)
I agree.
(Rajeev Ranjan Prasad, J) (Rajeev Ranjan Prasad, J)
maynaz/-
AFR/NAFR AFR CAV DATE 22.08.2024 Uploading Date 09.09.2024 Transmission Date 09.09.2024