TaxTMI 
TaxTMI 
2023 (9) TMI 1437
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....held guilty of offences Under Section 302 Indian Penal Code read with Section 120B Indian Penal Code; Section 364A read with Section 120B Indian Penal Code; and Section 201 Indian Penal Code. Sentences were passed against the three of them on the same day. Om Prakash Yadav was sentenced to life imprisonment along with default imprisonment of two months, if he failed to pay a fine of Rs.2,000/-. Raja Yadav and Rajesh Yadav were sentenced to death for the offences Under Sections 302 and 364A Indian Penal Code and to two months default imprisonment each, if they individually failed to pay the fine amounts of Rs.1,000/- and Rs.1,000/- respectively. Both of them were also sentenced to five years rigorous imprisonment and payment of fine of Rs.500/- each in relation to the offence Under Section 201 Indian Penal Code coupled with one month's default imprisonment. 2. Aggrieved thereby, all three convicts appealed to the High Court of Madhya Pradesh. Their appeals were clubbed with 'In reference (CRRFC-1 of 2017)' received from the Sessions Court in the light of the death sentences. By judgment dated 10.08.2017 delivered in Criminal Appeal No. 83 of 2017, filed by Om Prakash ....
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.... PW-1 and the caller said "I am Khan speaking. Your Bobby is with me. Send 50 lakh rupees and if you tell the police or any other person then I will cut Bobby's throat and kill him." PW-1 told him not to do that and asked to speak to her child. She then heard a voice saying: "Mummy, save me, Mummy, save me, I am Bobby". PW1 stated that, on hearing Bobby's voice, she fell down and the mobile fell from her hand. Om Prakash Yadav took the phone and started speaking to the caller. He said "Tell us quickly where to get the money and I am getting the money with (sic) Didi". Then, Monu Gujral (PW-10), another neighbour, took the phone but it was cut. PW-10 then used his own phone to call the kidnapper on the same number and asked to speak to Bobby. When the kidnapper let him do so, PW-10 told PW-1 that it was not Bobby's voice. Then, the caller said to PW-10 that Bobby had told him that his mother had Rs.3 lakh; to send the same right away and the balance Rs. 20 lakh could be given in 1 month. 6. Om Prakash Yadav pressed upon PW-1 to arrange Rs.1 lakh and to withdraw the rest of the Rs.20 lakhs from the bank. However, PW-1 could not give Rs. 1 lakh to Om Prakash Yadav as th....
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....gned by PW-2. Rajesh Yadav pointed out an empty liquor bottle lying at some distance. The same was seized under a Property Seizure Memo (Ex. P10). An iron knife was also seized at the behest of Rajesh Yadav from the canal. There were blood-like stains on the knife. The seizure was effected in the presence of witnesses under a Property Seizure Memo (Ex. P11). Rajesh Yadav was then arrested on 29.03.2013 at 18:30 hours under an Arrest Memo (Ex. P36). 8. PW-16 again went to the house of Rajesh Yadav on 30.03.2013 to search for the SIM card of mobile number 8305620342, but it was not found. Ex. P37 is the House Search Panchnama in that regard. On 31.03.2013, Rajesh Yadav was again questioned in Gorakhpur Police Station in the presence of witnesses and his statement was recorded in a Memorandum (Ex. P15). He stated that the mobile phone from which the ransom calls were made was with his brother, Brijesh Yadav, and that he would help recover it. On 31.03.2013, Brijesh Yadav was taken to Gorakhpur Police Station and questioned in the presence of witnesses. He made a statement, recorded in a Memorandum (Ex. P17), that he had hidden the mobile phones given by his brother, Rajesh Yadav, i....
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....ed and Om Prakash Yadav's SIM card with mobile number 9993135127 was inserted into the handset. As per the prosecution, though the ransom calls were made during the morning hours on 28.03.2013, Ajit Pal was killed on the night of 26.03.2013 itself by Rajesh Yadav and Raja Yadav. They lured him by offering him alcohol, whereupon Raja Yadav and Ajit Pal drank whisky. Raja Yadav then caught hold of Ajit Pal and Rajesh Yadav cut his throat. Rajesh Yadav then got a white plastic sack and they hid the body in the well. This, in sum and substance, was the prosecution's case. 13. Before parting with the factual narrative, we may note that the prosecution tried to project Puran Singh (PW-3) as a witness to buttress a 'last seen' theory so as to build up a stronger case. This witness stated that his daughter was married to PW-2. He stated that he knew the Accused also. He claimed that on 26.03.2013 at 6 pm, he had gone to Narmada Nagar to give a box of sweets to his daughter for Holi. He further stated that, after leaving her house, he reached the railway crossing and met Raja Yadav, Rajesh Yadav and Ajit Pal. Ajit Pal greeted him and he asked Ajit Pal why he was not at ho....
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....Padala Veera Reddy v. State of Andhra Pradesh and Ors. 1989 Supp (2) SCC 706, 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. 15. Applying these standards presently, we find that the prosecution utterly failed to pass muster in establishing its case. There are cavernous gaps in the evidence that the prosecution would offer as an 'unbroken chain un....
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....t the person on the phone who made the ransom call was a stranger and then went on to add that she had recognised the voice but as her child's life was in danger, she did not tell the police. She further stated that she did not say that she had recognized the voice until the end. She also admitted that she did not even mention in her examination-in-chief that she had recognised the voice. Compounding matters further, she stated that the police had used tracking dogs on 29.03.2013 but denied the suggestion that the dogs had detected the body in the well. According to her, the dogs were used in the evening after the body was taken out from the well in the afternoon. Thereafter, she said that the tracking dogs had gone to the well and washing area at 7-8 o'clock but she did not remember on which date it was, but it was after the body was found. Similarly, Jitendra Singh (PW-8), a close relation of PW-1 and a key witness to the prosecution's seizure memos, stated that he had heard of sniffer dogs being used between 28.03.2013 and 29.03.2013 but it was not in his presence. As to why sniffer/tracking dogs would be pressed into service after the police found the dead body, the....
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....he police had taken them on the night of 28.03.2013. He stated that he was released on the 5th from Gorakhpur Police Station but he did not make a complaint due to fear, as the police had beaten him a lot. 20. Princy Thakur (DW-2) stated that she used to visit Om Prakash Yadav's house since a long time as her mother used to work for them. She claimed that the Gorakhpur police arrested Raja Yadav and Rajesh Yadav at 3-4 pm on 27.03.2013 itself and took them for questioning to the police station. She stated that, at about 8-9 pm on that day, the police took her also to Gorakhpur Police Station for questioning. She alleged that the police seized all their mobiles. According to her, the police beat Raja Yadav and Rajesh Yadav a lot. She further stated that the police pulled out Rajesh Yadav's hair and that the three of them were questioned all day and night. She further claimed that, on 30.03.2013, the police brought Om Prakash Yadav to the police station at 2-3 o'clock. She asserted that the police beat Om Prakash Yadav a lot and that she saw it. Om Prakash was stated to have fallen down unconscious and two policemen, Rajesh Nag and Jugal Kishore, took him to Bhandari H....
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.... shall be proved against such person, unless it is made in the immediate presence of a Magistrate. Section 27, thereafter, is in the nature of an exception to Section 26 of the Evidence Act. It states 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. Therefore, it is essential Under Section 27 of the Evidence Act that the person concerned must be 'Accused of an offence' and being in the 'custody of a police officer', he or she must give information leading to the discovery of a fact and so much of that information, whether it amounts to a confession or not, that relates distinctly to the fact discovered, may be proved against him. In effect, both aspects, viz, being in 'the custody of a police officer' and being 'Accused of an offence', are indispensable pre-requisites to render a confession made to the police admissible to a limited extent, by bringing into play the exception postulated Under Section 2....
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....dia, 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. This 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. 26. More recently, in Boby v. State of Kerala Criminal Appeal No. 1439 of 2009, decided on 12.01.2023., this Court referred to the decision of the Privy Council in Pulukuri Kotayya v. King Emperor AIR 1947 Privy Council 67, wherein Section 27 of the Evidence Act had been considered at length and it was noted that Section 27 provides an exception to the prohibition imposed by the preceding provisions and enables certain statements made by an 'Accused' in 'police custody' to be proved. It was observed that the condition necessary to bring Section 27 into operation is that the discovery of a fact in consequence of information received from a person 'Accused of an....
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....sion, even if it may have led to the discovery of any fact. In consequence, the purported discovery of the dead body, the murder weapon and the other material objects, even if it was at the behest of Rajesh Yadav, cannot be proved against him, as he was not 'Accused of any offence' and was not in 'police custody' at the point of time he allegedly made a confession. So too would be the case with Raja Yadav and Om Prakash Yadav, as they also were not named as the 'Accused' in the FIR and were not 'Accused of any offence' till they were arrested and taken into 'police custody', well after the recording of their confessions and the alleged seizures based thereon. Needless to state, this lapse on the part of the police is fatal to the prosecution's case, as it essentially turned upon the 'recoveries' made at the behest of the Appellants, purportedly Under Section 27 of the Evidence Act. 28. That apart, the manner in which the Investigating Officer (PW-16) went about drawing up the proceedings forms an important issue in itself and it is equally debilitative to the prosecution's case. In Yakub Abdul Razak Memon v. State of Mahara....
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.... mentioned in the Panchnama. (f) The panchnama should be attested by the panch witnesses as well as by the concerned IO. (g) Any overwriting, corrections, and errors in the Panchnama should be attested by the witnesses. (h) If a search is conducted without warrant of court Under Section 165 of the Code, the I.O. must record reasons and a search memo should be issued. It was held that a panchnama would be inadmissible in a Court of law if it is recorded by the Investigating Officer in a manner violative of Section 162 Code of Criminal Procedure as the procedure requires the Investigating Officer to record the search proceedings as if they were written by the panch witnesses themselves and it should not be recorded in the form of examining witnesses, as laid down in Section 161 Code of Criminal Procedure. This Court concluded, by stating that the entire panchnama would not be liable to be discarded in the event of deviation from the procedure and if the deviation occurred due to a practical impossibility, then the same should be recorded by the Investigating Officer so as to enable him to answer during the time of his examination as a witness in the Cour....
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....that there was a big wound on the right side of the neck of the deceased; that, in the opinion of the panch witnesses, the deceased was murdered by Rajesh Yadav and Raja Yadav by cutting his throat with a knife; that his body was stuffed in a sack; and that the sack was thrown in a well. It then goes on to record the opinion of the Investigating Officer (PW-16) wherein, after noting the factual aspects, he stated that Ajit Pal was murdered by Rajesh Yadav and Raja Yadav by cutting his throat with a knife. Notably, the narrative is not that of the panch witnesses but mostly of PW-16 himself and the panch witnesses merely signed the panchnama. Akin thereto, the Crime Details Form (Ex. P13) notes that the scene of the crime was visited on 29.03.2013 at 15:15 hours and records that, 15 metres from the Khandari Canal, an old well is situated; that there are bushes growing around the well; that there was a body inside a white sack which was floating in the water in the well; that the width of the well was 2 metres 70 cms.; that the well was 6 metres deep; and that there was 1 metre water in the well and 5 metres was empty. Significantly, though the Crime Details Form notes that two panch....
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....rosecution would have it that he caught hold of Ajit Pal, a 15-year-old boy, who was 5.4" in height from behind and Rajesh Yadav, who was 5.7" in height, as per his Arrest Memo (Ex. P36), cut his throat. The possibility of Ajit Pal, held by a much taller Raja Yadav, managing to get his hands on Rajesh Yadav's head, who was also much taller than him, whereby he could have plucked out any hair is inherently improbable. This scenario does not lend itself to credibility and seems to have been concocted so that Rajesh Yadav's hair would be conveniently available for DNA analysis to corroborate the prosecution's case. Further, as there is a doubt as to when Rajesh Yadav was taken by the police and as to whether his hair could have been pulled out by the police while he was in their control, the possibility of such evidence being introduced by the police themselves cannot be ruled out. In Manoj and Ors. v. State of Madhya Pradesh (2023) 2 SCC 353, a 3-Judge Bench of this Court refused to rely on DNA evidence, inter alia, as the genuineness of its recovery was suspect. Presently also, as the source and origin of the DNA evidence, viz., the hair, is rendered suspect, the end res....
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....ed to him. PW-15 baldly stated that the said mobile number was allotted to Om Prakash Yadav but did not mark in evidence any document in proof thereof. Surprisingly, he had stated in his deposition that he had brought the certified copy of the application form and the ID used when this SIM card was allotted to the subscriber, Om Prakash Yadav, but the same were not marked. In effect, no palpable connection is established between the said mobile number and Om Prakash Yadav. In the absence of such a tangible link, the call data report (Ex. P31) and the contents thereof are practically useless in establishing the prosecution's case that the ransom calls were made from Om Prakash Yadav's mobile phone handset by inserting Bhuraji's SIM card, with mobile number 8305620342, therein. 35. Another notable feature is that PW-2, during his cross-examination, came up with a different story as to what transpired during those crucial days. He stated that on 28.03.2013, when Om Prakash Yadav and he went to the Gurudwara and while he was there, Om Prakash Yadav gave him a missed call. He claimed that he called him back at about 2 pm and Om Prakash Yadav told him that Bobby was there ....
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....r for or against the suspect. Protection of the society being the paramount consideration, the laws, procedures and police practices must be such as to ensure that the guilty are apprehended and punished with utmost dispatch and in the process the innocent are not harassed. The aim of the investigation and, in fact, the entire Criminal Justice System is to search for truth. ......The standard of police investigation in India remains poor and there is considerable room for improvement. The Bihar Police Commission (1961) noted with dismay that "during the course of tours and examination of witnesses, no complaint has been so universally made before the Commission as that regarding the poor quality of police investigation". Besides inefficiency, the members of public complained of rudeness, intimidation, suppression of evidence, concoction of evidence and malicious padding of cases..... 38. Echoing the same sentiment in its Report No. 239 in March, 2012, the Law Commission of India observed that the principal causes of low rate of conviction in our country, inter alia, included inept, unscientific investigation by the police and lack of proper coordination between police and prosec....