LONG NOTE
PATNA HIGH COURT
V.N. Sinha and Amaresh Kumar Lal, JJ.
Rajesh Ranjan @ Pappu Yadav —Appellant
versus
State of Bihar through the C.B.I. —Respondent
Criminal Appeal (DB) Nos.418, 240 & 361 of 2008
Decided on 17.5.2013

IMPORTANT POINT
Confessional statement. Safeguards provided in Sub-sections (2), (3) of Section 164 Cr.P.C. are to be read in conjunction for securing mandate of Articles 20, 21 and 22 of Constitution of India.

Headnote:(i) Indian Penal Code, 1860—Section 302 read with Section 120(B), 302/34, 302/34 and 307/34—Arms Act, 1959—Section 27—Criminal Procedure Code, 1973—Section 164—Murder—Common intention and conspiracy—Conviction—Confessional statement—Maker of confession should be specifically warned before hand by recording Magistrate effect of making confession that by making such confession, both maker and co-accused may be held guilty / liable to get applicable punishments i.e. in nature of death, life imprisonment or lesser period with fine—Maker should also be specifically warned that at later stage his retraction in any manner may or may not be believed and he may be held to be bound by it—Maker be also specifically warned that co-accused shall have no opportunity to cross examine him and co-accused can be equally punished on the basis of his confession and he will have no other chance to meet his confession at the stage of trial before trial court—Certified fair copy of confession be provided to maker of confession immediately after recording confession under Section 164 Cr. P.C.—After administering warning Magistrate must give at least 24 hours time or more by ensuring free from police custody and only then proceed to record confession and then the same may be allowed to be tested in trial court and not otherwise.

       (ii)Indian Penal Code, 1860—Sections 120(B)/149—Evidence Act, 1872—Sections 10 and 30—Conspiracy—Prosecution has to produce evidence not only to show that each of accused has knowledge of object of conspiracy but also of agreement—In the charge of conspiracy court has to guard itself against danger of unfairness to accused—Introduction of evidence against some may result in conviction of all which is to be avoided—It is unlawful agreement and not its accomplishment, which is the gist or essence of crime of conspiracy—It is unlawful agreement which is gravamen of crime of conspiracy—A conspirator is not responsible for acts done by a co-conspirator after termination of conspiracy—Joinder of conspiracy by a new member does not create a new conspiracy.

       (iii) Evidence Act, 1872—Section 30—Retracted confession—Corroboration need not be on every aspect but corroboration on material aspects would suffice—There is ample corroboration available on record and court can safely act upon it—Weapons used in commission of offence were not recovered by investigation agency and same seriously impinges credibility of case projected by prosecution—Court must not start with confession of co-accused and correct approach would be to marshal other evidence independent of confession—Contention challenging vires of the section 30 of Evidence Act or alternatively reading it down is liable to be rejected.

       (iv) Criminal Procedure Code, 1973—Section 313—Examination of accused—There is no requirement in law that object/case property must mandatorily be shown to accused during questioning under Section 313 Cr.P.C.—Court is required to question the accused generally on the case with a view to enable accused to explain circumstances appearing in evidence against him—There is no hard and fast rule that attention of accused must specifically be drawn by producing each case property before him during questioning—Copy of all materials relied by prosecution along with final report in terms of Section 173 Cr.P.C. is served in advance to accused person under Section 207 Cr.P.C before committal before Court of Sessions.

       (v)Evidence Act, 1872—Section 65-B—Secondary evidence—Phone call details—Mere non-production of certificate in terms of Section 65-B does not preclude other means of proving electronic records such as examination of official from authority—There is no obligation upon prosecution to call upon technical expert for examination.

       (vi) Criminal Law—Appreciation of evidence—Ocular evidence—A witness cannot be expected to recall accurately sequence of events which take place in rapid succession or in a short time span—A witness is liable to get confused, or mixed up when interrogated later on— Minor discrepancies on trivial matters not touching core of case, hyper technical approach by taking sentences torn out of context here or there from evidence, attaching importance to some technical error committed by investigating officer not going to root of matter would not ordinarily permit rejection of evidence as a whole—Realistic standards must be adopted while evaluating evidence led by prosecution—Exaggerated devotion to rule of benefit of doubt must not nature fanciful doubts or lingering suspicion and thereby destroy the social defence—Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punishing innocent—Letting guilty escape is not doing justice according to law—However, doubts must be reasonable and not imaginary, trivial or mainly possible doubt but a fair doubt based upon reason and common sense to result in acquittal.

       (vii) Criminal Law—Test Identification Parade—Mere publication of photographs in newspaper is no ground to disbelieve test identification parade—Delay in holding TIP is not fatal to prosecution case.(Para 168)

       (viii) Indian Penal Code, 1860—Section 302 read with Section 120(B), 302/34, 302/34 and 307/34—Arms Act, 1959—Section 27—Criminal Procedure Code, 1973—Section 164—Ajit Sarkar murder case—Common intention and conspiracy—Success of the prosecution case will depend upon truthfulness or otherwise of eye witnesses—Three eye witnesses of occurrence are not only contradicting themselves about identity of assailants before I.O. of local police and I.O. of C.B.I., but are also contradicting themselves on point of recording first statement—Required safeguards not observed by Magistrate while recording confessional statement of accused—Safeguards provided in Sub-sections (2), (3) of Section 164 Cr.P.C. are to be read in conjunction for securing mandate of Articles 20, 21 and 22 of Constitution of India—Failure to observe safeguard provided under Sub-section (3) of Section 164 Cr.P.C. cannot be condoned with reference to mandate of Section 463 Cr.P.C.—Confessional statement of an accomplice is admissible under Indian Evidence Act but requires corroboration in material particulars by other independent evidence—Trial Court should have summoned five F.I.R. named accused persons to face trial along with these appellants—Trial court having tried appellants alone who have been sent up for trial by C.B.I. under charge sheet and supplementary charge sheet filed under Sub-section (8) of Section 173 Cr.P.C and not five F.I.R. named accused who were sent up for trial by local police, has committed gross injustice and illegality—It was bounden duty of Trial Judge to have issued fresh summons to those who were erroneously let off by the C.B.I. Magistrate, by exercising power under Section 319, Cr.P.C.—It was for court to decide correctness of investigation conducted by two separate Investigating Agency fixing identity of two different set of accused, one set of accused named in F.I.R. and other set of accused named for first time before C.B.I. authorities—By trying these appellants alone after letting off the other set of accused named in F.I.R. dice has been loaded exclusively against these appellants which has occasioned in failure of justice— Appellants deserve to be granted benefit of doubt—Impugned judgment and order of sentence set aside. Also been indicated in paragraphs 9 and 10 above. Ocular and documentary evidence :

       Held: Success of the prosecution case will depend upon the truthfulness or otherwise of the eye witnesses i.e. P.Ws. 8 to 10. Aforesaid eye witnesses were first examined by the I.O. of local police A.K. Jha, P.W. 56 on 14.6.1998 and during the night between 14-15.6.1998. Before P.W. 56 the eye witnesses are said to have implicated the accused persons named in the fardbeyan, Ext. 27, namely, Bipin Singh @ Bipin Chaudhary and four others i.e. Jawahar Yadav, Md. Sattar, Diwakar Chaudhary and Pappu Dev and sent up for trial under charge sheet no. 210/98 dated 20.9.1998 filed by the Purnea police in the court of Chief Judicial Magistrate, Purnea. These eye witnesses were examined by the I.O. C.B.I., P.W. 61 between 25 to 29.10.1998. In the statement recorded before P.W. 61 the eye witnesses disowned their earlier statement recorded on 14.6.1998 and during the night between 14-15.6.1998 by the I.O. of Purnea police, P.W. 56 and implicated these three appellants and the two absconders named in the charge sheet, supplementary charge sheet dated 10.5.1999, 19.8.1999 filed by the I.O. C.B.I., P.W. 61. P.W. 61 having noticed that the eye witnesses have completely changed the identity of the accused as given in the fardbeyan, Ext. 27 and the statement recorded by P.W. 56 during the night between 14-15.6.1998 and the statement given before him, confronted the eye witnesses with their earlier statement made on 14.6.1998 and during the night between 14-15.6.1998. The eye witnesses, however, maintained before P.W. 61 that whatever they are saying before him they have already stated before K. Hat police. In the court the eye witnesses further changed their stand. P.W. 8 stated in paragraph 1 that he never recorded his fardbeyan as Purnea police arrived on 15.6.1998 between 10-11 A.M. to enquire from him about the occurrence. P.W. 8 refused to make any statement before the officer who had come to enquire from him about the occurrence but on the instruction of the officer gave the officer blank paper with his signature indicating 14.6.1998 as the date beneath his signature. P.W. 8 identified his signature over the fardbeyan, which was marked as Ext. 1/4. P.W. 8 further reiterated in paragraph 7 of his cross examination that he had not given any statement before the police as an eye witness of the occurrence either on 14.6.1998 or on 15.6.1998 but had only put his signature on 15.6.1998. In the same paragraph he has further stated that he had not shown the place of occurrence to the police officials. In paragraph 11, P.W. 8 stated that he had not shown the place from where he had seen the occurrence to any one. In the same paragraph P.W. 8 further stated that he had given the first statement to the C.B.I. The two witnesses who accompanied him at the time of occurrence also did not record their statement before the local police. In the same paragraph he further stated that on the date of occurrence wife and son of the deceased Ajit Sarkar were available in the house but he did not inform them about the occurrence. P.W. 9 also in paragraph 5 of his cross-examination accepted that he had given his first statement before the C.B.I. after four months of the occurrence. In paragraph 6 of his cross examination P.W. 9 further accepted that until he made statement before the I.O. of C.B.I. he had not disclosed to any one, except his party workers that he is an eye witness of the occurrence. P.W. 10 in paragraph 6 of his cross examination also accepted that he had not disclosed any information about the occurrence to the local police. In paragraph 7 he further stated that he had not given any statement about the occurrence to the local police. Aforesaid stand of the three eye witnesses is contrary to the evidence of the I.O. of local police, P.W. 56 who has asserted in his evidence that P.W. 8 recorded the fardbeyan giving the manner of occurrence as also the name of the five accused persons i.e. Bipin Singh @ Bipin Chaudhary, Jawahar Yadav, Abdul Sattar, Diwakar Chaudhary and Pappu Dev incorporated in the fardbeyan. He further stated that P.W. 8 further reiterated the version recorded by him in the fardbeyan in his further statement which was recorded during the night between 14-15.6.1998. He also stated that P.Ws. 9 and 10 in their statement under Section 161 Cr.P.C. recorded during the night between 14-15.6.1998 also reiterated the version of the occurrence given by P.W. 8 including the name of the accused mentioned in the fardbeyan and the further statement of P.W. 8. I.O. C.B.I., P.W. 61 having noticed the contradiction in the statement of the three eye witnesses given before him and the statement given before the I.O. Purnea police, P.W. 56 confronted P.Ws. 8 to 10 with their previous statement recorded before the I.O. of local police, P.W. 56. Eye witnesses, however, maintained that whatever they had stated before the I.O. C.B.I. they had already stated before the K.Hat police. In this regard reference is required to be made to the statement of the I.O. C.B.I., P.W. 61 in paragraph 237, 238 of his deposition, which is incorporated hereinbelow for ready reference : 237. Before recording the evidence of K.C. Sarkar, Madhusudan Rishi and Lal Bahadur Oraon, I tried and find out that the statement of those three witnesses recorded by K. Hat Police. I had gone through their earlier statement recorded by K. Hat police before recording their statement. 238. I confronted the witnesses at the time of recording their evidence from earlier evidence. They have stated that whatever they are saying before me, they have already stated before K. Hat Police.

       It would, thus, appear that the three eye witnesses of the occurrence are not only contradicting themselves about the identity of the assailants before the I.O. of local police P.W. 56 and the I.O. of C.B.I., P.W. 61 but are also contradicting themselves on the point of recording first statement. Before I.O. C.B.I. they stated that they recorded the same statement before the I.O. of local police which they have recorded before him. In court the eye witnesses i.e. P.Ws. 8 to 10 stated that they had not recorded fardbeyan, further statement and the statement before the I.O. of local police and made their first statement before the I.O. of C.B.I. P.W. 8 further stated in court that on 15.6.1998 between 10-11 A.M. police officer from K. Hat P.S. had approached him to enquire about the occurrence but he refused to make any statement, however, at the request of the police officer gave him blank paper with signature indicating 14.6.1998 as the date beneath the signature. Aforesaid two material contradictions in the deposition of the eye witnesses is required to be considered in the light of the evidence of I.O. of local police, P.W. 56. The evidence of P.W. 56 has not been challenged by the prosecution nor has any suggestion been made to him that he fabricated the fardbeyan and misconducted the investigation. On the contrary P.W. 8 having admitted his signature on the fardbeyan, the evidence of P.W. 56 is required to be accepted. P.W. 8 and the two comrades, P.Ws. 9 and 10 when confronted by the I.O. C.B.I., P.W. 61 admitted before him that they had given the same statement to the I.O. of local police which they are giving before him. P.W. 8 never made complaint before any authority that his signature was taken by P.W. 56 on blank paper on 15.6.1998 with date 14.6.1998 beneath his signature. The contents of the fardbeyan are detailed and it is not possible to accept the criticism that the I.O. of local police, P.W. 56 imagined those details and prepared/fabricated Ext. 27. Reference in this connection is made to the judgment of the Supreme Court in the case of Sarwan Singh and Others Vs. State of Punjab, (1976) 4 SCC 369, paragraph 8 at page 375. Judgment of the Supreme Court in the case of Kanti Kumari Roy Vs. Suresh Kumar Roy and others, AIR 1990 Supreme Court 1631, paragraph 6 and Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh, (1991) 3 SCC 627, paragraph 6 has been relied upon by the counsel for the appellant to substantiate the submission that P.W. 8 being a retired Sergeant Driver of the Railway Protection Force cannot be believed that he handed over blank paper with his signature to the I.O. of local police, P.W. 56 and did not disclose such fact even to the I.O. of C.B.I., P.W. 61 till he came to the court to give evidence that he gave blank paper with his signature to the I.O. of State police, P.W. 56. P.W. 9 is also not to be relied as he is member of C.P.M. District Committee and did not disclose to the local police that he is an eye witness but disclosed such fact after four months of the occurrence to the C.B.I. He is also not to be relied as he knew Anil Yadav, Harish Chaudhary, Amar Yadav by face and name prior to the occurrence but his failure to disclose their names to P.W. 8 renders his claim doubtful. He also stands extensively contradicted in the light of his case diary statement recorded by P.W. 56. P.W. 9 claimed that he informed his party worker about identity of the assailant but not a single party worker has been examined to corroborate him. On the contrary I.O. C.B.I., P.W. 61 stated that he could not locate any party worker to whom P.W. 9 had disclosed the name of the assailants. Aforesaid false evidence given by P.W. 9 shakes the foundation of the prosecution case. P.W. 9 is also not to be relied as he stands contradicted by injured P.W. 25 as according to P.W. 9 injured was sent to hospital in Ambulance, which is incorrect in view of the evidence of the injured that he went to the hospital in tempo. P.W. 9 having not disclosed to the local police soon after the incident that he is an eye witness no reliance can be placed on his evidence. Evidence of P.W. 10 is also not fit to be relied as he having counter-signed the fardbeyan, Ext. 27 on 14.6.1998 denied such fact. P.W. 10 also knew Anil Yadav, Amar Yadav and Harish Chaudhary from before but did not disclose their names to P.W. 8 vide paragraph 10 of the evidence of P.W. 8. He also did not disclose the names of the assailants to the wife of the deceased vide paragraph 10 of the evidence of P.W. 10. He also did not inform local police that he is an eye witness vide paragraphs 6, 7 of his evidence. He disclosed the fact that he is an eyewitness to the occurrence one month after the occurrence vide paragraph 2 of his evidence. In view of the aforesaid material contradictions in the statement and deposition of the eye witnesses, the submission of the counsel for the appellants that P.Ws. 8 to 10 cannot be relied as they are residents of village Rani Patra, which is seven kilometers away from the place of occurrence and reached the place of occurrence after 45 minutes of the occurrence as per the evidence of Ranu Kumar Singh, P.W. 19 paragraph 8 and injured Ramesh Oraon, P.W. 25 paragraphs 8 to 10 that he remained at the place of occurrence for about half an hour after the occurrence but the eye witnesses were not seen by him, is required to be appreciated. Injured P.W. 25 further stated in paragraph 2 that Subhash Singh was first to arrive at the place of occurrence and that Subhash Singh rescued him from the car. The evidence of P.Ws. 19, 25 contradicts the eye witnesses that they were the first to reach the place of occurrence. Sunil Kumar Singh, P.W. 14 has also corroborated the injured Ramesh Oraon about the presence of Subhash Singh and has stated that it was Subhash Singh who gave information at the house of the deceased Ajit Sarkar about incident at 5 P.M. The evidence of P.Ws. 19, 25, 14 having not been challenged by the prosecution their evidence is binding on the prosecution. Reference in this connection is made to the judgment of the Supreme Court in the case of Javed Masood and Another Vs. State of Rajasthan, AIR 2010 Supreme Court 979, paragraphs 9, 10, 13 to 16. Placing reliance over the judgment in the case of Javed Masood (supra) it is observed that in view of the evidence of P.Ws. 19, 25, 14 which has not been challenged by the prosecution the presence of the eye witnesses P.Ws. 8 to 10 at the place, time of occurrence becomes doubtful. The examination in chief of Ravindra Nath Singh, Subodh Yadav, P.Ws. 7, 20 in paragraph 1 indicate that on 8.6.1998 P.W. 7 had come to Purnea Bar Library to meet a friend Advocate where he learnt from his old acquaintance Subodh Yadav, P.W. 20 that Rajesh Ranjan @ Pappu Yadav had called Rajan Tiwary to Purnea who is about to kill M.L.A. Dilip Yadav and Ajit Sarkar as P.W. 20 had given to him a written piece of paper in which it was so written. Aforesaid evidence of P.Ws. 7, 20 cannot be accepted for the failure of P.Ws. 7, 20 to take any step in the matter including lodging of the F.I.R. against Rajesh Ranjan @ Pappu Yadav and Rajan Tiwary. Having not lodged F.I.R. strong inference of falsehood of the said statement and existence of piece of paper dated 8.6.1998 has to be drawn and consequential benefit given to the appellants. The evidence of Domai Thakur P.W. 15 and Shambhoo Prasad Mehta, P.W. 16 that they had seen Anil Yadav, Harish Chaudhary, Amar Yadav and one unknown in Harda Market in the afternoon of 14.6.1998 taking rounds on the market road over red bullet and black motorcycle and thereafter followed the car of the deceased is also not worthy of credence in view of the evidence of I.O. C.B.I., P.W. 61 vide paragraphs 109, 289 that P.Ws. 15, 16 had not made such statement before him. Reliance placed by the prosecution on telephone print out Ext. 3 series to establish the conspiracy hatched by the appellant for elimination of Ajit Sarkar is also misplaced. Perusal of Ext. 3 series indicates that call of long duration was made in the morning of 14.6.1998 from Delhi residence of appellant Rajesh Ranjan @ Pappu Yadav to his Purnea residence. The print out further indicates that on the date of occurrence at 18 hours 16 minute 48 second call of 42 second duration and at 18 hours 18 minute 16 second call of 32 second duration was made from Katihar P.C.O. telephone no. 34679 to Delhi residence of appellant Rajesh Ranjan @ Pappu Yadav on telephone no. 3730767 subscribed in his name and on telephone no. 3736358 subscribed in the name of his wife. On the same day at 20 hours 08 minute 41 second call from the same P.C.O. of one minute 26 second duration was made to Gorakhpur residence of appellant Rajan Tiwary on telephone no. 0551322035. From the print out Ext. 3 series, the evidence of Ramashray Rajak, P.W. 6 officer of the telephone company who issued print out and Om Prakash Ramnani, P.W. 52 husband of the telephone booth owner, it is impossible to identify either the caller or the called or the contents of their conversation, as such, it is not safe to rely on the print out, Ext. 3 series in support of the prosecution case. In this connection, it may be stated here that this Court categorically asked the counsel for the C.B.I. to indicate the material on the basis of which it is concluded by C.B.I. that telephone no. 0551322035 is the telephone subscribed by appellant Rajan Tiwary at his Gorakhpur residence. Counsel could not refer to any material, as such, it is difficult for this Court to accept the submission that Rajan Tiwary made call of one minute 26 second duration from Katihar P.C.O. booth no. 34679 to his Gorakhpur residence on 14.6.1998 at 20 hours 08 minute 41 second. Recovery of the two steel core portions from the car of the deceased on 3.3.1999 and the report of Rup Singh, P.W. 33 dated 22.3.1999, Ext. 9/1 that the aforesaid two steel core portions were fired from 7.62 MM assault rifle cannot be relied upon as possibility of plantation of the two steel core portions in the car of the deceased cannot be ruled out after its release by the Chief Judicial Magistrate, Purnea under order dated 25.7.1998 in favour of Madhvi Bose (Sarkar), wife of the deceased, whereafter the car was parked in the garage of Nitu da for repair wherefrom the two steel core portions were recovered on 3.3.1999 i.e. after about 9 months of the occurrence. Photograph, material Ext. VII in which appellant Rajesh Ranjan @ Pappu Yadav his wife and child are seen with appellant Rajan Tiwary is indicative of the association between the two appellants seen in the photograph but association simplicitor does not establish hatching and execution of conspiracy by them and others.

       Result: Appeals allowed.