Chattisgarh High Court
Mukesh Kumar Sahu vs State Of Chhattisgarh on 22 February, 2022
Page 1 of 21
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on : 17.01.2022
Judgment Delivered on : 22/02/2022
CR.A. No. 566 of 2013
Mukesh Kumar Sahu, S/o. Tiharuram Sahu, aged about 19 years, R/o.
Village, P.O. Odekera, P.S./Tahsil - Jaijaipur, District Janjgir Champa,
Chhattisgarh, 495 690.
---- Appellant
Versus
State of Chhattisgarh, through - District Magistrate Janjgir, District
Janjgir, Crime No 72/12, P.S. - Jaijaipur, District Janjgir Champa,
Chhattisgarh.
---- Respondent
AND
CR.A. No. 601 of 2013
Chandra Shekhar @ Chhotu Chandra, S/o. Teej Ram, aged about 18
years, R/o. Vill. Odekana, P.S. Jaijaipur, District Janjgir Champa,
Chhattisgarh.
---- Appellant
Versus
State Of Chhattisgarh, through - Station House Officer, Jaijaipur, District
Janjgir Champa, Chhattisgarh.
---- Respondent
For Appellants : Mr. Rajesh Jain, Advocate with
Mrs. Kiran Jain, Advocate
For Respondent/State : Mr. R.M. Solapurkar, Govt. Advocate
Hon'ble Shri Justice Rajendra Chandra Singh Samant &
Hon'ble Shri Justice Arvind Singh Chandel
C A V JUDGMENT
Per Rajendra Chandra Singh Samant, J.
1. Both the appeals have been preferred against the judgment of
conviction and order of sentence dated 28.5.2013, passed by the
learned Second Additional Sessions Judge, Sakti, District Janjgir-
Champa, Chhattisgarh in Sessions Trial Case No. 157 of 2012,
whereby and where-under the learned Second Additional
Sessions Judge has convicted the appellants under Sections 302,
364-A, 201, 120-B, 386 and 148 of the Indian Penal Code (for
short 'IPC') and sentenced them to undergo life imprisonment with
fine of Rs.25,000/-, life imprisonment with fine of Rs.25,000/-, R.I.
for 3 years with fine of Rs.1,000/-, life imprisonment with fine of
Rs.10,000/-, R.I. for 7 years with fine of Rs.1,000/- and R.I. for 3
years to each of the appellants, respectively with default
stipulations.
2. The case of the prosecution, in brief, is this that Dilip Sahu
(deceased) went to appear for examination in Sanskar School,
Jaijaipur in the morning of 19.3.2012. Dilip Sahu did not come
back because of which, complainant - Phool Singh Sahu (PW-1)
kept searching for him and not being successful, he lodged a
missing report on 28.3.2012 (Ex. P-1). Subsequent to that, Phool
Singh Sahu (PW-1) received a phone call from mobile
No.9806978731 on his own mobile No. 7566815079 on 7.4.2012.
The caller threatened him that if he wants to see his son alive, he
will have to pay Rs.10,00,000/- as ransom. This call was repeated
on 8.4.2012 and 9.4.2012. The complainant informed about this
phone call in the Police Station Jaijaipur by a written complaint
(Ex.P-1) on which basis, FIR (Ex.P-2) was lodged.
3. Phool Singh Sahu (PW-1) bargained with the unknown caller who
agreed to take Rs.1,00,000/- as ransom. He made arrangement
for Rs.1,00,000/-. On 11.4.2012, he again received a phone call
from unknown person, who informed about the place for leaving
the money. Phool Singh Sahu (P.W.-1) went to the place
alongwith Chandrika Prasad (P.W.-3) on a motorcycle with the
money. He had put his name Phool Singh on some of the
currency notes for the purpose of identification. The money was
left on the indicated place by him. After making payment of the
money, his son did not return. On the same day, he received a
phone call from the same mobile No. 9806978731, in which a boy
who was imitating the voice of his son Dilip Sahu, said that he had
given trouble and harassed his father, therefore, he is going to
Jammu & Kashmir and he will return after sometime. After that,
Phool Singh Sahu (P.W.-1) did not receive any other call.
4. The police took up the investigation. Appellant - Chandra Shekhar
@ Chhotu Chandra was apprehended and interrogated, who after
making admissions about the commission of offences, made a
statement for recovery of cash of Rs.12,000/-, some articles
purchased by him and also about discovery of dead body and a
stone in memorandum (Ex.P-3). At the instance of appellant -
Chandra Shekhar, a stone having blood like stain was seized vide
(Ex. P/4). According to his statement for recovery of the dead-
body in his memorandum statement (Ex.P-3), the dead body of
Dilip Sahu was recovered vide panchanama (Ex.P-16) from the
spot. Further, at his instance, a mobile of Samsung Company, a
mobile of YXTEL Company and another mobile of YXTEL
Company were seized alongwith currency notes of Rs.12,000/-
which were two currency notes of Rs.1,000/- and in 20 currency
notes of Rs.500/-. Name of Phool Singh was found written on
both the currency notes of Rs.1,000/-. Another article, a pair of
shoes were also seized vide (Ex. P-19).
5. Appellant - Mukesh Kumar Sahu was interrogated and he gave a
memorandum statement vide (Ex.P-7) and at the instance of
appellant -Mukesh Kumar Sahu, a blood-stained stone was
seized from the place indicated vide (Ex.P-8). Further, at the
instance of appellant - Mukesh Sahu, seizure of currency notes of
Rs.20,000/- was made, in which there were three currency notes
of Rs.1,000/- and 34 currency notes of Rs.500/-. The name of
Phool Singh was found written in three currency notes of Rs.500/-
and the seizure was made vide (Ex.P-22). The juvenile offenders
who were party to this offence were also interrogated. Their
memorandum statements were recorded and seizure of articles
were made at their instance regarding which, reference is not
needed in this case. The dead-body was exhumed vide (Ex. P-
13).
6. Phool Singh Sahu (PW-1) identified the dead-body as that of his
son Dilip Sahu. The dead-body was subjected to postmortem
examination jointly by Dr. Shyamlal Banjare (PW-9) and Dr. K.L.
Urao (PW-10). On the basis of the findings in the postmortem
examination, both the witnesses have opined that the deceased
had excessive bleeding from the cut injury of the vein of right hand
and also the injuries that were found on the vital parts of the body
i.e. fracture of skull and ribs as mentioned in the report. It was
reported that the death of the deceased was homicidal. The other
investigative procedures were carried out, in which spot map was
prepared vide (Ex.P-34) and query was made from the doctors
regarding the stones seized as weapon of offence. Report (Ex.P-
36) was given by Dr. Shyamlal Banjare (PW-9) and Dr. K.L. Urao
(PW-10) that the stones may have been weapon of offence for
causing death of the deceased. The other investigative procedures
were completed. The statements of the witnesses were recorded
under Section 161 of the Cr.P.C. and on completion of
investigation, the charge-sheet was filed before the Court.
7. Learned trial Court framed the charges against both the appellants
under Sections 302, 364-A, 201, 120-B, 386, 148, 302/149 and
364A/149 of the IPC. The appellants denied the charges and
pleaded innocence. The prosecution has examined as many as 16
witnesses. On completion of the prosecution evidence, both the
appellants were examined under Section 313 of the Cr.P.C., in
which they denied all the incriminating evidence present against
them and they again made a statement that they are innocent and
they have been falsely implicated in this case. No witness was
examined in the defence. Learned trial Court after giving
opportunity of hearing to the prosecution and defence has
delivered the impugned judgment convicting and sentencing the
appellants in the manner mentioned herein-above.
8. It is submitted by the learned counsel for the appellants in both the
cases, that the conviction against the appellants is erroneous and
bad in law. There is no eye-witness of this case. The prosecution
against the appellants was based only on the circumstantial
evidence. The complete chain of circumstances has not been
proved. The FIR in this case has been lodged after a delay of 9
days, therefore, the same was not believable. The statement of
the witnesses had been full of contradictions and omissions,
hence the same were not trustworthy. The recovery of dead body
was made about after a month from the date, since the date the
deceased was went missing and body recovered was not fit to be
identified. The doctor conducting autopsy Dr. Shyam Lal Banjare
(P.W.-09) has made admission in the cross-examination, that the
body of the deceased had been decomposed and disfigured and
the face of the deceased was not recognizable, hence, the
identification of this body made by Phool Singh Sahu (P.W.-1) is
full of doubt and the prosecution has failed to prove the essential
fact that the dead body found was that of the missing person -
Dilip Sahu. The witnesses of memorandum and seizure are Phool
Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3), both are
related to each other and deceased was the son of Phool Singh
Sahu (P.W.-1), therefore, these witnesses have interest against
the appellants, because of which, their evidence should not have
been relied upon reliance for conviction of the appellants.
9. It is further submitted that Phool Singh Sahu (P.W.-1) had lodged
FIR against the holder of the mobile phone No. 9806978731, but
no such mobile phone have been seized from any of the
appellants having the SIM number as mentioned hereinabove.
Although some mobile phones were seized from the appellant
Chandra Shekhar @ Chhotu Chandra having IMEI mentioned in
the seizure memo (Ex.P-19), but the call details obtained do not
confirm that the mobile phone having IMEI number seized from the
appellant Chandrashekar @ Chhotu Chandra was the same in
which, the SIM number 9806978731 was used to make call to the
complainant for payment of ransom, hence this evidence of the
prosecution is also not at all against the appellants and the same
could not have been used for convicting the appellants. The other
evidence on which, the learned trial Court has placed reliance is
the name Phool Singh found written on some currency notes,
regarding which, there is no specific evidence of Phool Singh
Sahu (P.W.-1) and neither any report of handwriting expert was
taken to confirm that Phool Singh's name was written by the Phool
Singh Sahu (P.W.-1) hiself. Further there is no evidence of any
witness regarding last seeing the appellants and the deceased
together.
10. It is further submitted that when the appellants were interrogated
they were not in the custody of the police. The memorandum
statement of the appellant Chandrashekar @ Chhotu Chandra
was recorded on 13.04.2012 at 5.10 AM in the morning, whereas,
his arrest memo shows that he was arrested on the same day at
15.05 PM. Similarly, memorandum statement of appellant Mukesh
Kumar Sahu was recorded on 13.04.2012 at 5.40 AM in the
morning and his arrest memo shows the time of 15.20 PM of the
same date. Hence, the requirements under Section 27 of the
Evidence Act that the accused has to be taken into custody for
interrogation was not complied with, therefore, the non-compliance
of mandatory provisions by itself vitiates the proceeding of
recording of memorandum statements. Hence, under these
circumstances, the appellants are entitled for benefit of doubt. It is
prayed that both the appeals be allowed and the appellants be
acquitted of the charges- against them.
11. Learned State counsel opposes the submissions made by the
learned counsel for the appellants and submits that the
prosecution has very clearly proved its case against the appellants
beyond reasonable doubt. Witnesses of circumstances namely
Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3) both
are wholly reliable witness, only for the reason that they are
related to each other and to the deceased, their evidence could
not have been discarded. The evidence of memorandum
statements given by the appellants and the recovery made on that
basis are totally reliable and trustworthy. The appellants had not
been able to explain circumstances against them. It was on the
basis of memorandum statement (Ex.P-3) given by the appellant
Chandra Shehar @ Chhotu Chandra, the dead body of the
deceased was recovered. Phool Singh Sahu (P.W.-1) had
identified the dead body recovered as that of his son Dilip Sahu,
who has remained firm in the statement of identification throughout
the cross-examination. It was the burden of the appellants to prove
that Dilip Sahu son of Phool Singh Sahu (P.W.-1) was alive, but
they have not brought any evidence to prove the same. It is
submitted that although the SIM card bearing No.9806978731
could not be recovered and seized, but the mobile instruments
were seized from the appellant Chandra Shekhar @ Chhotu
Chandra having IMEI number of 15 digits. Call details obtained
from the cellular network company mentions that the call made
from one of the seized mobile having IMEI number as mentioned.
The IMEI number of calling mobile differs only in one digit, which
may be a clerical mistake, therefore, the prosecution has proved
that the mobile set having IMEI number as mentioned was in
possession of the appellant Chandra Shekhar @ Chhotu Chandra,
which was used for making call for ransom amount.
12. It is also submitted that Phool Singh Sahu (P.W.-1) has made very
clear statement, that he had put his signature on the currency
notes to be given in ransom to the abductors of his son, which is
unrebutted throughout in his statement and the same currency
notes were seized from the possession of the appellants, which is
an evidence of direct circumstance against these appellants. The
appellants were required to give explanation, but they have failed
to do so. The appellants have not taken any specific defence in
the case except for denying the charges and denying the
prosecution evidence against them. Further no evidence was lead
by the appellants in their defence. Hence, the conviction against
the appellants is based on reliable and trustworthy evidence,
which is not liable to be interfered with. It is prayed that both the
appeals be dismissed.
13. We have heard the learned counsel for both the parties at length
and perused the record of the trial Court.
14. There appears to be no dispute that the deceased Dilip Sahu went
missing on 19.03.2012. The statement of Phool Singh Sahu (P.W.-
1) that he received a phone call from mobile number 9806978731
on his own mobile number 7566815079 on 07.04.2012, making a
demand for ransom and the repeated calls made from the same
mobile number on 08.04.2012 and 09.04.2012 is not specifically
rebutted, neither have been specifically denied by the
appellants/accused persons. The lodging of written complaint
(Ex.P-1) by the Phool Singh Sahu (P.W.-1) is also not contested.
The statement of Phool Singh Sahu (P.W.-1) that he bargained
with unknown caller and then the unknown caller agreed to have
Rs.1.00 lakh as ransom, has not been challenged in defence.
Further that Phool Singh Sahu (P.W.-1) made arrangements of
Rs.1.00 Lakh and after putting his signature on some of currency
notes of the ransom amount, he left the same in the place
designated by the unknown phone caller, from where ransom
amount was taken away, is also not specifically challenged in the
trial.
15. The appellant - Chandra Shekhar @ Chhotu Chandra was
interrogated by the Police on 13.04.2012 at 5.10 AM, in presence
of witness Phool Singh Sahu (P.W.-1) and Chandrika Prasad
(P.W.-3). He made disclousere statement regarding the place,
where the dead body of the deceased was to be found and also
about the recovery of stone, mobile phone and other articles
purchased by him along with currency notes of Rs.12,000/-. The
Investigation Officer, K.R. Kaushle (P.W.-12) has proved this
statement being given by appellant Chandra Shekhar @ Chhotu
Chandra and his statement has been supported by Phool Singh
(P.W.-1) and Chandrika Prasad (P.W.-3). It was at the instance of
Chandra Shekhar @ Chhotu Chandra, the dead body was
recovered from the place identified by the appellant - Chandra
Shekhar @ Chhotu Chandra vide Ex.P-16, which was buried in
the ground. This proceeding of investigation under (Ex.P-16) have
also been supported by the Phool Singh Sahu (P.W.-1) and
Chandrika Prasad (P.W.-3).
16. The dead body was exhumed by the orders of the Executive
Magistrate vide Ex.P-13, on its exhumation, the dead body
recovered was identified by the Phool Singh Sahu (P.W.-1) as the
body of his son, which is mentioned in (Ex.P-13). S.R. Sidar (P.W.-
6), Executive Magistrate had conducted exhumation procedure,
who has also stated that the dead body was identified by Phool
Singh Sahu (P.W.-1) and others, regarding which, there is mention
in Ex.P-13, which has been signed by this witness and other
witnesses present. He has further clarified in his cross-
examination that Phool Singh Sahu (P.W.-1) had identified the
dead body on the basis of his face, clothes and the slippers. There
is discrepancy regarding mention of slippers, it can be regarded as
footwear, which was not the only basis of identification of the
deceased by Phool Singh Sahu (P.W.-1). There is no other
statement given by him, which could be regarded to consider that
his statement about exhumation and identification of the deceased
can be doubted in any manner. The witnesses of exhumation
procedure are Phool Singh Sahu (P.W.-1) and Chandrika Prasad
(P.W.-3) who have fully supported this investigation procedure.
17. Similarly by other seizure memo, the seizure of stone having blood
stain vide Ex.P-4 at the instance of the appellant- Chandra
Shekhar @ Chhotu Chandra, seizure of mobile phones one of
which having IMEI No. 357679035404508 and the other mobile
phones along with currency notes Rs.12,000/- out of which, there
were two currency notes of denomination Rs.1000/- and 20
currency notes of Rs.500/- and on both the currency notes having
denomination of Rs.1,000/-, the name Phool Singh Sahu was
found written, were recovered at the instance of the appellant
Chandra Shekhar @ Chhotu Chandra vide Ex.P-19, which has
been proved by the Sub-Inspector, K.R. Kaushle (P.W.-12) and
Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3).
18. Mukesh Kumar Sahu was interrogated on 13.04.2012 at about
5.40 AM, who gave memorandum statement vide Ex.P-7,
regarding the place, where the dead body was to be found and
also regarding the articles to be recovered at his instance.
Recording of this memorandum statement has been proved by the
Sub-inspector K.R. Kaushle (P.W.-12) and the other witness Phool
Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3). At the
instance of the appellant Mukesh Kumar Sahu, one stone having
blood stain was recovered vide Ex.P-8 and further at the instance
of appellant Mukesh Kumar Sahu and from his possession
currency notes of Rs.20,000/- having three notes of denomination
of Rs.1000/- and 34 notes of Rs.500/- were seized. On three notes
of Rs.500/-, name of Phool Singh was found written. The seizure
was made vide Ex.P-22. This procedure regarding memorandum
statement and recovery and seizure has been proved by Sub-
Inspector K.R. Kaushle (P.W.-12) as well as supported by Phool
Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3).
19. The issue raised by the learned counsel for the appellants
regarding identification of dead body of the deceased needs
consideration.
20. The Executive Magistrate, S.R. Sidar (P.W.-6) has conducted
exhumation procedure of the dead body and he has stated that
although the body was decomposed but Phool Singh Sahu (P.W.-
1), father of the deceased and other witnesses identified the dead
body on the basis of the face, cloths and footwear, which is a
statement made by him in the cross-examination itself. This
statement has been confirmed by Phool Singh Sahu (P.W.-1) in his
examination-in-chief, that the dead body exhumed was that of his
son and he had made identification. In the cross-examination, he
has denied the adverse suggestion regarding the identification of
the dead body and he has clarified that he has identified the body
of his son after looking to the whole body and the face of the
deceased was identifiable. There is no other statement on the
basis of which, it can be regarded that his statement about
identifying the dead body has been rebutted. It is to be noted that
the Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3)
were not strangers to the deceased and the identification of the
dead body made by them had been on the basis and taking into
consideration all the features of the deceased Dilip Sahu. Hence,
the finding of the learned trial Court regarding the identification of
the dead body appears to be correct and needs no interference.
21. The question raised on the reliability of evidence of Phool Singh
Sahu (P.W.-1) and Chandrika Prasad (P.W.-3) has to be dealt with
at first.
22. Deceased Dilip Sahu was son of Phool Singh Sahu (P.W.-1) and
Chandrika Prasad Sahu (P.W.-3) is uncle of the deceased, who is
brother-in-law of Phool Singh Sahu (P.W.-1). In case of Raju @
Balachandran & Ors Vs State Of Tamilnadu, reported in AIR
2013 SC 983, it has been held that the evidence of any related or
interested witnesses can not be rejected out-rightly, it is only that
the rule of caution applies. Evidence of related or interested
witnesses has to be meticulously and carefully examined. In case
related and interested witnesses have any enmity with the
assailant, only in that circumstance, the evidence may be
disbelieved. Hence, the evidence of Phool Singh Sahu (P.W.-1)
and Chandrika Prasad (P.W.-3) has to be examined in the light of
this observations in the case of Raju @ Balchandran (supra).
23. On careful scrutiny of evidence of Phool Singh Sahu (P.W.-1),
there is his statement in cross-examination, that he saw the
appellant Chandra Shekhar for the first time on 20.03.2012, there
is no such suggestion given to him in cross-examination that he
had any enmity with the appellants and further there is no such
story in defence. Similar is the statement of Chandrika Prasad
(P.W.-3). On the scrutiny of his complete deposition, it is found that
there is not a single statement on the basis of which, it can be held
that these witnesses had any personal interest against the
appellants. Therefore, after following the rule of caution, it is found
that there is no reason present to disbelieve the statement of
Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3).
Hence, the learned trial Court has not committed any error in
placing reliance on the evidence of these two witnesses.
24. The ground raised in appeal regarding the reliability of the
evidence with respect to phone calls, needs examination. The
statement of Phool Singh (P.W.-1) that he received phone call from
mobile number 9806978731 on his mobile phone 7566815079
making demand of ransom has not been challenged at all in
defence. The only defence raised is this that the mobile number
9806978731 did not belong to the appellant Chandra Shekhar @
Chhotu Chndra. It is true that there is no recovery of SIM having
this mobile number from the possession of the appellant Chandra
Shekhar @ Chhotu Chandra, however, one Samsung mobile set
has been recovered, which had IMEI number 357679035404508.
The call details present on record Ex.P-46 and Ex.P.-47 have not
been specifically challenged by the appellants side. The IMEI
number of the mobile set, which were used for making calls from
SIM No. 9806978731 is shown in the calls details as
357679035404500. All the digits of the IMEI number, excepting the
last digit are identical to the IMEI number of the mobile set, which
was seized from the appellant Chandra Shekhar @ Chhotu
Chandra. This difference in one digit was needed to be explained
and clarified by the prosecution, but the same has not been done,
neither any witnesses has been summoned from the telecom
department to give any clarification in this respect. Difference in
one digit alone makes a lot of difference and it raises doubt.
Hence, the evidence in this regard that the mobile number, which
was used for making some calls to the complainant Phool Singh
Sahu (P.W.-1, has been seized from the appellant Chandra
Shekhar @ Chhotu Chandra can not be regarded as conclusive.
Hence, the finding on this point alone in the impugned judgment
appears to be not proved and the same could not have been relied
upon.
25. Another evidence of circumstances on which, the question has
been raised by the appellants side is the identification mark of the
currency notes, which was recovered from the possession of the
appellants. Phool Singh Sahu (P.W.-1) has stated in his
examination-in-chief, that at the time of delivering the ransom
amount, he had put his signature on some of the currency notes
on the instruction given by the Police Officer. In cross-examination,
he had denied that he had affixed his signature at the time, when
the currency notes were seized from the possession of the
appellants. Further there was no suggestion to challenge the
signature of Phool Singh Sahu (P.W.-1) present on the currency
notes. Apart from that, no other question was put to this witness
for the purpose of rebutting his statement given in examination-in-
chief. It is clearly mentioned in the seizure memo (Ex.P-19) from
the appellant Chandra Shekhar @ Chhotu Chandra that out of
currency notes, two currency notes of denomination of Rs.1000/-
had the name of Phool Singh Sahu written on them. Similarly
currency notes that was seized from he appellant Mukesh Kumar
Sahu vide (Ex.P-22), three currency notes of denomination of
Rs.500/- had name of Phool Singh had written on them. This is
mentioned in these seizure memos, which corroborates the
statement given by Phool Singh Sahu (P.W.-1). It was the turn of
the appellants/accused person to explain as to in what manner,
the currency notes seized from them had the name of the Phool
Singh written on them. The case of the appellants was simple
denial. They have denied the seizure of currency notes from them.
Therefore, no circumstances have been brought forth by the
defence to contradict the evidence of prosecution regarding
identification of the currency notes, that has passed from the
hands of the complainant Phool Singh Sahu (P.W.-1) and were
recovered from the possession of both the appellants, which is a
very strong circumstances present against both the appellants.
26. It is argued by the counsel for the appellants that the appellants
were not arrested at the time they were interrogated and their
statements were recorded under Section 27 of the Evidence Act.
Section 27 of the Evidence Act requires that the person accused
has to be in custody of police officer at the time when he gives
statement regarding discovery of facts and articles. The accused
persons has to be in custody of police officer, when he makes the
discovery statement for the purpose of making his statement
admissible under Section 27 of the Indian Evidence Act. The word
custody as mentioned in Section 27 of the Evidence Act does not
mean a custody after formal arrest, but also includes such state of
affairs, in which the accused can be said to have come into the
hands of a police officer or can be said to have been under some
sort of surveillance or restriction. It has been held in the case of
Mt. Maharani vs Emperor, reported in AIR 1948 All 7, in which it
was held that the custody as mentioned in Section 26 or 27 of the
Evidence Act does not mean formal custody. In the case of Onkar
Vs. State of M.P., reported in 1974 CR.L.J. 1200, the M.P. High
Court has held that when a person is called to the police station
and is interrogated as an accused in connection with the
investigation of a crime, he must be deemed to be in the custody
of the police while he is so interrogated and no formal arrest is
necessary. In this particular case, the appellants were either called
or they themselves submitted, before the police and made
statement regarding discovery of facts and articles, hence, this
submission of the appellants for interrogation to the police officer
is certainly to be regarded as custody, although it was not formal
arrest and the formal arrest has been made later on, on the same
day. Therefore, the legal point raised by the counsel for the
appellants in this case regarding inadmissibility of the discovery
statement made by the appellants does not hold ground. Hence,
this ground raised is not sustainable.
27. After making careful scrutiny of all the evidence present in the
record, we are of the view that the circumstances that have been
proved by the prosecution are proved beyond reasonable doubt.
The first circumstances is missing of Dilip Sahu, although the call
on mobile phone can not be connected with the appellants
because of the failure of the prosecution to prove beyond
reasonable doubt that the mobile phone used for making ransom
call was in possession of these appellants. Further the culpability
of the appellants is indirectly connected with the other
circumstances proved, that is the currency notes, which were
delivered as ransom amount were found in possession of both the
appellants and juvenile offenders.
28. There had been no dispute that the cause of death of the
deceased was the injuries found on his body and his death was
homicidal. Another strong circumstance present against the
appellants is that the dead body of the deceased was recovered at
the instance of the appellant Chandra Shekhar @ Chhotu
Chandra. The identification of the dead body has also been found
proved. Hence, the discovery of the dead body at the instance of
the appellant Chandra Shekhar @ Chhotu Chandra connects the
incident directly with the death of the deceased Dilip Sahu. Hence,
the chain of circumstances that has been proved are sufficient to
conclude that it were the appellants and their associates, who had
abducted the deceased, murdered him, and also received the
ransom amount. This conclusion is also fit to be drawn that the
dead body of the deceased was buried to conceal the evidence of
heinous offence of murder committed by the appellants and
others.
29. On the basis of the proof of circumstantial evidence against the
appellants, there is nothing present to exclude the appellants from
the commission of offence that have been committed in this case.
It is fit to be concluded that it were the appellants, who had
abducted the deceased Dilip Sahu to make demand for ransom. It
were the appellants, who are directly responsible for the homicidal
death of the deceased - Dilip Sahu. It were the appellants, who
had buried the dead body of the deceased to conceal the
commission of offence of murder. In the manner, the full incident
was transacted by the appellants on that basis clearly the
inference can be drawn, that there was meeting of minds and prior
agreement, which reflects commission of offence of conspiracy. It
is also concluded that it was the appellants, who had demanded
ransom and extorted the complainant - Phool Singh Sahu (P.W.-
1). The conviction of the appellants under Section 302, 364A, 201,
120-B, 386 of the Indian Penal Code is clearly made out.
30. According to the prosecution case, there had been juvenile
offenders on whose inclusion, the number of offenders would be
five, it was on that basis, the learned trial Court framed the
charges under Section 302 read with Section 149 and Section
364A read with section 149 and Section 148 of the Indian Penal
Code.
31. On perusal of the complete evidence present in the record of the
trial Court, there appears to be no evidence present regarding
participation of the juvenile offenders, therefore there is nothing to
hold, the presence of unlawful assembly. Furtherance of common
object for commission of offence is found proved here-in-above it
can be presumed, therefore, the conviction of the appellants under
Section 148 of the Indian Penal Code appears to be without any
basis. However, it is a case of joint act of the appellants, therefore,
Section 34 of the Indian Penal Code comes into play in such a
case.
32. After considering on all the grounds raised, submissions made by
the learned counsel for the both the parties and scrutiny of the
evidence present on record, we are of the considered opinion that
the conviction against the appellants under Section 302, 364A,
201, 120-B and 386 of the Indian Penal Code is sustainable and
that can not be interfered with. Further the conviction against the
appellants under Section 148 of I.P.C. is not sustainable. The
conviction against the appellants under Section 148 of I.P.C. is
set-aside. The conviction and sentence of the appellants in the
other offences mentioned here-in-above, are upheld and hereby
confirmed.
33. Accordingly both these appeals are disposed off with the
observations as aforesaid.
Sd/- Sd/-
(R.C.S. Samant) (Arvind Singh Chandel)
Judge Judge
Nirmala/
Balram
