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IN THE HIGH COURT OF JUDICATURE AT PATNA
RAJEEV RANJAN PRASAD and RAMESH CHAND MALVIYA, JJ.
Cr. Appeal (DB) Nos. 822 of 2021 with 99 of 2022
(16.1.2025)
Vivek Kumar @ Vivek @ Modi @ Ram Vivek Kumar (in 822)
Ritesh Kumar @ Vikas Kumar @ Vikas @ Ritesh (in 99) ... Appellants
vs.
State of Bihar ... Respondent
(in both)
Indian Evidence Act, 1872 – Section 65B – Electronic evidence – The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with – In the present case, CDR/CAF submitted by the Investigating Officer was signed by the District Intelligence Unit which was received through e-mail from the concerned telecom agency./ RTMS in the form of computer generated CDR/CAF which has formed the basis of fastening liability on the appellants was not certified in accordance with the law enshrined in Section 65B(5)(a)(b)(c) of the Indian Evidence Act – The Prosecution has submitted the certified copy of the mail sent to the authorities which was certified by the District Intelligence Unit but when the law prescribes that the person who has the custody of the electronic device or the person who operates it, is required to certify such copy of the electronic evidence – Further, the prosecution has failed to supply the report directly without any human intervention in compliance of Section 65B(5) – In light of the statutory mandate and the decisions of the Apex Court, admissibility of the CDR and CAF in the absence of the requisite certificate from the persons who had the custody of the mobile phone, cannot be accepted. (Paras 49 & 50)
Indian Evidence Act, 1872 – Section 27 – Recovery on the confession of the accused – Confessional statements of the accused were recorded 4.10.2015 at 11 PM and on the basis of the same, the police recovered the dead body of the deceased on 5.10.2015 at 3 P.M. – This version of the prosecution is very doubtful as the Investigating Officer does not recover the dead body of the deceased/victim on the same day – There is no arrest memo on the record showing the date and time of arrest of accused persons – While the confessional statement was being recorded, no independent witness was called by the Investigating Officer to lend credence to the confessional statement of the accussed/appellants – In such circumstances, the so called confessional statement given by the accused/appellant would not be admissible in evidence. (Paras 48 to 52)
Indian Penal Code, 1860 – Sections 364A and 302 – Kidnapping of a minor boy and murder – Prosecution failed to bring cogent evidences to prove the guilt of the accused-appellants beyond shadow of all reasonable doubts – The essential ingredients of the offence under Sections 364A and 302 IPC lacking and the link between the kidnapping and murder of victim and role of the accused-appellants in connection with the occurrence in question could not be fully established so as to reach to a conclusion of guilt against the appellants – Impugned judgment set aside – Appellants directed to be released forthwith. (Paras 55 to 57)
Ramesh Chand Malviya, J.—Heard Mr. Ajay Kumar Thakur learned, counsel for the appellant in Cr. Appeal (DB) No. 822 of 2021 assisted by Mr. Birendra Kumar, Mr. Kaushal Kumar, learned counsel for the appellant in Cr. Appeal (DB) No. 99 of 2022, Mr. Gaurav Prakash, learned counsel for the informant and Ms. Shashi Bala Verma learned APP for the State.
2. Both appeals are arising out of the judgment of conviction dated 03.11.2021 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 20.11.2021 (hereinafter referred to as the ‘impugned order’) passed by learned Additional Sessions Judge-III, Nalanda at Bihar Sharif (hereinafter referred to as the ‘learned trial Court’) in Session Trial No. 337 of 2016 arising out of Bihar P.S Case No. 457 of 2015. By the impugned judgment, the appellant, namely, Vivek Kumar @ Vivek @ Modi @ Ram Vivek Kumar has been convicted for the offence punishable under Sections 302/120B of the Indian Penal Code (hereinafter referred to as ‘IPC’) to undergo life imprisonment and a fine of Rs. 25,000 and in default of payment of fine he shall further undergo imprisonment of another 3 months. In the said fine amount, Rs. 15,000 would be paid to the mother of the deceased. For the offence punishable under Sections 364A/120B of the IPC, he shall undergo life imprisonment and a fine of Rs. 25,000 and in default of payment of fine, he shall further undergo imprisonment of another 3 months. In the said fine amount, Rs. 15,000 would be paid to the mother of the deceased. For the offence punishable under Sections 201/120B of the IPC, he shall undergo rigorous imprisonment for seven years and a fine of Rs. 15,000 and in default of payment of fine, he shall undergo an imprisonment of another 3 months. In the said fine amount, Rs. 7,000 would be paid to the mother of the deceased. The appellant namely, Ritesh Kumar @ Vikas Kumar @ Vikas @ Ritesh has been convicted for the offence punishable under Sections 302/120B of the Indian Penal Code (hereinafter referred to as ‘IPC’) to undergo life imprisonment and a fine of Rs. 25,000 and in default of payment of fine, he shall further undergo imprisonment of another 3 months. In the said fine amount, Rs. 15,000 would be paid to the mother of the deceased. For the offence punishable under Sections 364A/120B of the IPC, he shall undergo life imprisonment and a fine of Rs. 25,000 and in default of payment of fine, he shall further undergo imprisonment of another 3 months. In the said fine amount, Rs. 15,000 would be paid to the mother of the deceased. For the offence punishable under Sections 201/120B of the IPC, he shall undergo rigorous imprisonment for seven years and a fine of Rs. 15,000 and in default of payment of fine, he shall undergo an imprisonment of another 3 months. In the said fine amount, Rs. 7,000 would be paid to the mother of the deceased.
Prosecution Case
3. As per the prosecution story, the fardbeyan of the informant, PW-5 was recorded on 01.10.2015 at 4:45 PM by P.S.I. Jitendra Kumar of Bihar PS Case No. 457 of 2015 in which she alleged that in the morning of 01.10.2015 her son Ravi Kumar, aged 14 years, had left home at around 7:30 in the morning to study at Cambridge School, Professor Colony but did not return. When she went to the school and asked the headmaster about the whereabouts of her son, she was told that the boy had not come to school. There were endeavors to search for the minor boy in the neighborhood area. She also called the relatives and asked but the boy was not found. All her efforts did not evoke results. She had a suspicion that on 28.09.2015 when her son Ravi and daughter Ananya were going to withdraw money from an ATM, Devanand got into a fight with her son and threatened him. Also, about 20 days ago, two people were pressurizing her brother in law Rajiv Kumar Sharma to send two persons abroad but her husband refused to help him to send anyone abroad as he did not have a visa. Her brother-in-law had already taken
The prosecution must establish an unbroken chain of evidence beyond reasonable doubt for conviction, failing which the accused is entitled to acquittal.
The judgment establishes that circumstantial evidence must form a complete, unbroken chain directly linking the accused to the crime, which warranted a life sentence in this case.
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