IMPORTANT POINT
Compliance with the mandatory requirements for recording a confessional statement under Section 164 of the Cr.P.C. and the need for adequate evidence to establish charges under the Indian Penal Code.

JUDGMENT :

CHAKRADHARI SHARAN SINGH, J.

1. Both these appeals have been preferred under Section 374(2) of the Cr.P.C. against the same judgment of conviction dated 14.09.2015 and order of sentence dated 21.09.2015 passed by the learned Additional District and Sessions Judge-III, Patna, in Sessions Trial No. 1148 of 2005, arising out of the same Chowk P.S. Case No. 69 of 2002and, accordingly, they have been heard together and are being disposed of by the present common judgment and order.

2. By the impugned judgment and order, the appellants have been convicted and sentenced as under:

3. Heard Mr. Bindhyachal Singh, learned Senior Counsel appearing on behalf of the appellant in Cr. Appeal (DB) No. 806 of 2015 and Mr. Rajesh Ranjan, learned counsel appearing on behalf of the appellant in Cr. Appeal (DB) No. 973 of 2015. Mr. Sujit Kumar Singh learned Additional Public Prosecutor has appeared for the state in both appeals.

4. The fard-beyan of the father of the deceased, Mahabir Prasad Kamalia (PW-4), recorded on 17.04.2002 by the Sub-Inspector of Police, R.P. Paswan, of Chowk Police Station (not examined), is the basis for registration of the concerned Chowk P.S. Case No. 69 of 2002, which was registered against the unknown. The case, as unfurled in the fard-beyan, is that the informant received a piece of information at 7.30 in the morning of 17.04.2002 that his son (the deceased) had been shot at near Hitaishi Pustakalaya, Mangal Talab, and he had been shifted to a nursing home for treatment. The informant rushed to the hospital with the wife of the deceased, Rita Kamalia (PW-5), and his (informant’s) nephew Rajesh Kumar Kamalia (PW-2). On reaching the hospital, they learnt that the deceased had been declared dead. The dead body of the deceased was thereafter taken to N.M.C.H. Patna. It further discloses that the deceased used to go for playing badminton in the morning in Hitaishi Pustakalaya, situated at Mangal Talab. He was not going there for the last three-four days. On the date of occurrence, while going to the place, where he used to play badminton, he had informed the informant telephonically to keep a vehicle ready with a driver which was to be made available to someone. He also mentioned that nearly 11 months ago, his brother, Om Prakash Kamalia, was also killed. The nephew of the informant, Rajesh Kumar Kamalia (PW-2), became the witness to the recording of the fard-beyan of the informant by the police officials.

5. It is the prosecution's case that during the investigation, Suraj Kumar (appellant in Cr. Appeal (DB) of 973 of 2015) was apprehended by the police, whose statement was recorded before a learned Magistrate under Section 164 of the Cr.P.C. In the said statement recorded under Section 164 of the Cr.P.C. he is said to have confessed his involvement in the commission of the offence in conspiracy with others including the appellant, Afshan Ajeem @ Afshan Azeem @ Afsa Azim @ Anjum, of Cr. Appeal No. 806 of 2015. The said statement, recorded under Section 164 of the Cr.P.C. has been marked as Exhibit-4 at the trial. As the accusation against the Appellant, Afshan Ajeem @ Afshan Azeem @ Afsa Azim @ Anjum is based primarily on the disclosure said to have been made by appellant Suraj Kumar in his statement under Section 164 of the Cr.P.C. before considering evidence of the witnesses recorded at the trial, we have deemed it apposite to refer first to the facts said to have been disclosed by him in the said statement. To begin with, he disclosed his acquaintance with on