Kanhaiya Chaudhary @ Sashi ... vs The State Of Jharkhand
2021 Latest Caselaw 3780 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Criminal Appellate Jurisdiction)

               Criminal Appeal (DB) No. 570 of 2014
                                With
               Criminal Appeal (DB) No. 603 of 2014
                                With
               Criminal Appeal (DB) No. 704 of 2014
                                With
               Criminal Appeal (DB) No. 793 of 2014

 (Against the judgment of conviction dated 8 th July 2014 and the
 order of sentence dated 15th July 2014 passed by the learned
 3rd Additional Sessions Judge, Deoghar in S.C. No. 44 of 2012)
                                 --------
 Kanhaiya Chaudhary @ Sashi Chaudhary, s/o Binod Chaudhary, r/o
 village-Ladma, PS-Alampur, District-Madhepura   ...... Appellant
                                  [in Criminal Appeal (DB) No. 570 of 2014]
 Chandan Kumar Singh, s/o Sri Narayan Singh, r/o village-Saborbhiti,
 PS and District-Bhagalpur                           ...... Appellant
                                  [in Criminal Appeal (DB) No. 603 of 2014]
 Sonu Kumar Singh, s/o Late Sri Ajit Kumar Singh, r/o village-
 Daulatpur, PS-Jamui, District-Jamui           ...... Appellant
                                  [in Criminal Appeal (DB) No. 704 of 2014]
 Rupesh Kumar Singh, s/o Late Ramtahal Prasad Singh, r/o
 Sahjjadpur, PO-Sahjjadpur, PS-Udai Kishanganj, District-Madhepura
 (Bihar)                                            ...... Appellant
                                   [in Criminal Appeal (DB) No.793 of 2014]


                             Versus
 The State of Jharkhand                                    ...... Respondent
                                --------

                                      (Heard on 4th & 5th October, 2021)

                          PRESENT
    HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
      HON'BLE MR. JUSTICE RATNAKER BHENGRA
                      -------

 For the Appellant(s)     : Mr. A.K. Kashyap, Sr. Advocate
                            [In Cr. Appeal (DB) No.570 of 2014]
                            Mr. Jitendra S. Singh, Advocate
                            [In Cr. Appeal (DB) No.603 of 2014]
                            Mr. Sanjay Prasad, Advocate
                            [In Cr. Appeal (DB) No.704 of 2014]
                            Mr. Rajeev Ranjan Tiwary, Advocate
                           [In Cr. Appeal (DB) No.793 of 2014]
                                       2        Cr. Appeal (DB) Nos.570 of 2014 and analogues matters



      For the State            : Mr. Shekhar Sinha, Public Prosecutor
                                 [In Cr. Appeal (DB) Nos.570 of 2014 & 603 of 2014]
                                Mr. Ashok Kumar, APP
                                [In Cr. Appeal (DB) No.704 of 2014]
                                Mr. Saket Kumar, APP
                                [In Cr. Appeal (DB) No.793 of 2014]
                                    --------

                                Oral Judgment
                               5th October, 2021

Per, Shree Chandrashekhar,J.

Kanhaiya Chaudhary @ Sashi Chaudhary, Chandan Kumar Singh, Sonu Kumar Singh and Rupesh Kumar Singh have filed these criminal appeals challenging the judgment of conviction under section 364-A read with section 120-B of the Indian Penal Code passed against them in S.C. No. 44 of 2012.

2. Deoghar (Town) PS Case No.74 of 2011 was lodged on 19 th March 2011 against unknown. In his fardbeyan which was recorded at 11:30 AM on 19th March 2011, Surender Singhania gave a statement before the officer-in-charge of Deoghar (Town) PS that last night his father did not come back home from the factory and the next morning, on inquiry, he came to know that Manohar Singh who was working as a guard at the factory called a rickshaw for his father who had left for home around 08:30 PM. He informed the officer-in-charge that a ransom call came at the landline bearing number 222529 at his house and, therefore, he apprehends that his father has been abducted for ransom. In course of the investigation, Chandan Kumar Singh, Sonu Kumar Singh and Rupesh Kumar Singh were arrested on 23rd March 2011 from a rented house of the father of Saroj Singh at village Tiwari Tola, Saharsa and Rati Yadav, the rickshaw puller who was called by Manohar Singh for taking Nand Kishor Singhania to home, was also found confined in the same house. During the investigation, it became clear that Saroj Singh was the mastermind who had planned kidnapping of Nand Kishor Singhania for extracting ransom of Rs.3 crores. Saroj Singh and Kanhaiya Chaudhary were arrested on 23rd March 2011 at Professor Colony, Farbishganj in Bihar and on the same day Saroj Singh suffered a confessional statement implicating 8 other persons in the crime.

3 Cr. Appeal (DB) Nos.570 of 2014 and analogues matters

3. A headless dead body was found in decomposed condition near Belharni river and in this regard Sangrampur PS Case No.25 of 2011 was registered on 25th March 2011. The inquest was prepared and the unidentified dead body was sent for postmortem examination. The scientific investigation carried to find out identity of the dead body revealed that blood sample of the informant matched with bone sample collected from the dead body. Mr. R.S. Singh who prepared DNA report has testified in the Court that the dead body which was recovered on 25 th March 2011 has parental lineage with the informant.

4. In course of the investigation statement of Rati Yadav was recorded under section 161 of the Code of Criminal Procedure and then the story of abduction of Nand Kishor Singhania in the evening of 18 th March 2011 became clear. The confessional statements of Kanhaiya Chaudhary, Chandan Kumar Singh, Sonu Kumar Singh and Rupesh Kumar Singh were taken by the investigating officer which are recorded in the case-diary. After the investigation a charge-sheet was filed in the Court against Kanhaiya Chaudhary, Chandan Kumar Singh, Sonu Kumar Singh, Rupesh Kumar Singh, Ashish Kumar Gautam @ Lal Singh, Chunni Tiwari, Bablu Tiwari, Pranav Deo and Saroj Singh and they were put on trial for committing the offences punishable under sections 364-A, 302, 201 and 120-B of the Indian Penal Code.

5. Subsequently, the records of Saroj Singh were separated vide order dated 07th January 2013. We are informed that Saroj Singh who faced the trial separately in Session Trial No.44A of 2012 has been acquitted by judgment dated 22nd November 2019.

6. In S.C. No.44 of 2012, Chunni Tiwari, Bablu Tiwari, Pranav Deo and Ashish Kumar Gautam were acquitted primarily for the reason that the prosecution was not able to lead evidence to connect them with crime.

7. Kanhaiya Chaudhary, Chandan Kumar Singh, Sonu Kumar Singh and Rupesh Kumar Singh are convicted and sentenced to R.I for life and a fine of Rs.2000/- under section 364-A read with section 120-B of the Indian Penal Code.

8. Sri A.K. Kashyap, the learned senior counsel, appearing for Kanhaiya Chaudhary submits that there is no evidence against this appellant except that Kanhaiya Chaudhary was found in the company of Saroj Singh and, 4 Cr. Appeal (DB) Nos.570 of 2014 and analogues matters

moreover, the CDRs of the mobile phone seized from his possession do not indicate that any threat or ransom call was made by him.

9. Mr. Jitendra S. Singh, the learned counsel, appearing for Chandan Kumar Singh submits that the CDRs obtained by the investigating officer of the SIM number 8877645684 in the mobile phone recovered from the house in which Rati Yadav was kept in confinement and which was allegedly used by Rupesh Kumar Singh do not connect Chandan Kumar Singh with the crime. The learned counsel would further contend that Chandan Kumar Singh was found in the company of Sonu Kumar Singh and Rupesh Kumar Singh when a raid was conducted at village Tiwari Tola, Saharsa and Rati Yadav was recovered from the same house but that by itself is not sufficient to hold that Chandan Kumar Singh was involved in abduction of Nand Kishor Singhania for extracting ransom from his family.

10. Mr. Rajeev Ranjan Tiwary, the learned counsel, appearing for Rupesh Kumar Singh and Mr. Sanjay Prasad, the learned counsel, appearing for Sonu Kumar Singh took a similar plea to challenge conviction of these appellants under section 364-A read with section 120-B of the Indian Penal Code.

11. Before we deal with the aforesaid contentions raised on behalf of the appellants, it would be appropriate to keep in mind the basis for conviction of these appellants recorded in S.C. No.44 of 2012.

12. For a better appreciation of the incriminating materials dealt with by the learned trial Judge, we would extract paragraph no.46 of the judgment under challenge which reads as under:

"46. Now it is the time to analyze and sum up the evidence against accused persons that is sought to be relied upon by the prosecution. A. Case of accused persons Rupesh Kumar Singh, Chandan Kumar Singh and Sonu Kumar Singh consists of confessional statement recorded and the circumstantial evidence. As far as confessional statement relates I have already find that the endeavor to bring the confessional statement of accused or their co-accused into the gamut of evidence is frustrated. The circumstantial evidence which stand established against them are enumerated herein below.

(a) The first circumstance is that on 23/3/11 in raid conducted in a house at Tiwari Tola Saharsha one victim rickshaw puller Ratiram was recovered and at that time these three accused were also arrested therefrom.

(b) The second circumstance is that for demanding ransom Sim Card number 9546517500 was used. This Sim Card number 9546517500 was also being operated by instrument having IMEI number 356072038249040 and this instrument having IMEI number 5 Cr. Appeal (DB) Nos.570 of 2014 and analogues matters

356072038249040 was recovered from the same house from where these three accused were arrested and one victim was rescued.

(c) It has established that call for ransom were made through cell- phone 9546517500 and that occupant of cell-phone 9546517500 was also using another cell-phone 8809113939. Cell phone call records of cell phone 8809113929, Ext 7/6 and of cell phone 8877645684 Ext 7/5 had established frequent telephonic contacts in between cell- phone 8809113929 and cell-phone 8877645684 which reveals the nexus between the user of cell-phone 8809113929 and of cell-phone 8877645684. From 22.57.14 of 18/3/11 to 07.28.25 of 19/3/11, means to say in night of abduction they spoke to each other seven time. The third circumstance is that the Sim Card 8877645684 was also in the instrument having IMEI number 356072038249040 which was recovered from the same house from where these three accused were arrested and one victim was rescued. Centro car alleged to be used for abduction & some other objectionable articles viz. Uniform & badge etc. were recovered from the house.

(d) The fourth circumstance is that it had been established that CDR of the location of phone number 8877645684 from 17/3/11 to 19/3/11 establishes that location of phone on 17/3/11 at 15:39:32 its Cell-ID ... was of Daulatpur of Distt. Jamui, on 18/3/11 at 17:50:29 its Cell- ID 42521 was of Chakai of Distt. Jamui and again on same day at 18:21:22 its Cell-ID 61512 was of Jasidih of Distt. Deoghar at 19:01:37 its Cell-ID 35021 was of Kalirakha of Distt. Deoghar, at 19:41:52 Cell-ID 61511 was of Jasidih of Distt. Deoghar and at 22:57:14 its Cell-ID 64342 was of Bodhnia of Distt. Munger. On 19/3/11 from 08:26:51 to its last call at 17:15:05 its Cell-ID 23551 was of Tiwari Tola Saharsha. Thus person/persons in possession of this cell phone no.8877645684 had reached Kaliraha Deoghar in evening (the date and place of abduction), went to Bodhnia of Distt. Munger (village of recovery of dead body) and to Tiwari Tola Saharsha (place of arrest and of recovery of victim). B. Case of accused Kanhaiya Chaudhary @ Sashi Chaudhary: As in the case of accused persons Rupesh Kumar Singh, Chandan Kumar Singh and Sonu Kumar Singh, the evidence against Kanhaiya Chaudhary @ Sashi Chaudhary consists of confessional statement made to the Police and the circumstantial evidence. Accused Saroj Singh & Kanhaiya Chaudhary @ Sashi Chaudhary were arrested in wee hours on by the police of Farbishganj by chasing the cell-phone location of cell phone 9546517500 used by the caller to demand ransom, this accused after seeing the police party tried to flee away but was intercepted with Saroj Singh. One officers of that raiding party who intercepted them has deposed so and identified this accused. The evidence shows that this accused was in close contact of Saroj Singh, they lived together during crucial period as shadow of each other and were arrested together. Cell phone no. 9883382604 and cell phone 9546517500 were also seized in this matter. Though at the time of arrest cell phone 9546517500 was in the hand of accused Saroj Singh but there are reasons to believe that it could be in common occupancy. It was being used in two instrument. Call record of period from 10.03.11 t0 18.03.11 of cell phone 9546517500, Ext 7/1 transpires that from 9.42.27 of 19/03/11 to 13.19.27 of 22/03/11 ten calls were made on telephone number 6432222529 to make demand of ransom from the family of abducted victim Nand Kishor Singhania. Call records of this cell phone also show that is was in close contact with other perpetrator too."

13. In course of the trial the accused tried to dispute identity of the dead body and the learned trial Judge has dealt with this issue in paragraph no.18 6 Cr. Appeal (DB) Nos.570 of 2014 and analogues matters

of the judgment under challenge. PW12 R.S. Singh was Deputy Director at State Forensic Science Laboratory, Ranchi. He proved the forensic report of the blood samples of the informant and the dead body which was recovered on 25th March 2011 near the basin of Belharni river at village Bodhnia in the district of Munger.

14. The dead body was sent for F.S.L Report which is extracted below:

RESULTS OF EXAMINATION REPORT Method:

1. The Exhibit marked-A (Source: A piece of long bone) and Exhibit marked-B (Source Blood soaked on a gauze piece of Surendra Kumar Singhania), were subjected to Organic Extraction Method DNA isolation.

2. Exhibit marked-A (Source: A piece of long bone) and Exhibit marked-B (Source:Blood soaked (Source Blood soaked on a gauze piece of Surendra Kumar Singhania) yielded DNA which was suitable for downstream processes of DNA test.

3. The DNA extracted from the Exhibit marked-A (Source: A piece of long bone) and Exhibit marked-B (Source Blood soaked on a gauze piece of Surendra Kumar Singhania), were subjected to multiplex PCR reaction for co-amplification of 15 autosomal STR loci, and amelogenin gender locus using AmpFISTR® Identifiler® Kit.

4. The DNA extracted from the Exhibit marked-A (Source: A piece of long bone) was also subjected to multiplex PCR reaction for co- amplification of 08 autosomal mini-STRs loci and amelogenin gender loci using AmpFISTR® Minifiler Kit.

5. The DNA extracted from the Exhibit marked-A (Source: A piece of long bone) and Exhibit marked-B (Source Blood soaked on a gauze piece of Surendra Kumar Singhania), were subjected to co- amplification of 17 Y-STRs microsatellite loci using AmpFISTR® YfilerTM Kit.

6. The amplified products along with controls were run for electrophoresis on the Automated DNA Sequencer 3130 (ABI). The sizing of fragments were carried out using Gene Mapper® ID software V3.2 with respect to Gene ScanTM 500 LizTM Size standard.

7. The resultant allelic distributions (genotypes) for the studied loci in the different exhibits are shown in the table as under:

Observations:

1. Human DNA could be recovered from the Exhibit marked-A (Source:A piece of long bone) and, Exhibit marked-B (Source: Blood soaked on a gauze piece of Surendra Kumar Singhania).

2. The DNA profile generated from the source of Exhibit marked-A (Source: A piece of long bone) belongs to a human male individual.

3. The DNA profile generated from the source of Exhibit marked-B (Source:Blood soaked on a gauze piece of Surendra Kumar Singhania) belongs to a human male.

4. The paternal alleles of the autosomal STRs DNA profile of the source of the Exhibit marked-A (Source: A piece of long bone) are accounted to be present in the autosomal STRs DNA profile generated by the source of the Exhibit marked-B (Source:Blood soaked on a gauze piece of Surendra Kumar Singhania).

5. The Y-STRs DNA profile of the source of Exhibit marked-A (Source: A piece of long bone) and Exhibit marked-B (Source:Blood soaked on a gauze piece of Surendra Kumar Singhania) are identical to each other. Therefore, the source of Exhibit marked-A (Source: A piece of long bone) and the source of Exhibit marked-B 7 Cr. Appeal (DB) Nos.570 of 2014 and analogues matters

(Source:Blood soaked on a gauze piece of Surendra Kumar Singhania) belong to the same lineage.

6. Half of the alleles of the DNA profile of the source of Exhibit marked-A (Source:A piece of long bone) matched with half of the alleles of the DNA profile of the source of Exhibit marked-B (Source:Blood soaked on a gauze piece of Surendra Kumar Singhania).

Conclusion:

The DNA test performed on the exhibits noted above is sufficient to conclude that:

1. The source of Exhibit marked-A (Source:A piece of long bone) and the source of Exhibit marked B (Source:Blood soaked on a gauze piece of Surendra Kumar Singhania) are biologically related.

2. The source of Exhibit marked-A (Source: A piece of long bone) is biological father of the source of Exhibit marked-B (Source:Blood soaked on a gauze piece of Surendra Kumar Singhania).

15. We have also examined this issue and are satisfied that there is no doubt that the dead body recovered on 25 th March 2011 was of Nand Kishor Singhania.

16. Rati Yadav who is the only eyewitness did not identify the accused in the dock and therefore the prosecution was left with only the circumstantial evidence to prove the charge under section 364-A of the Indian Penal Code against the accused. It is not necessary that in every case the prosecution must produce eyewitnesses to prove a charge and its case against the accused may rest on an equally sound foundation provided the circumstantial evidence laid during the trial are of definite character, cogent, consistent and do not admit any doubt on culpability of the accused.

17. In a case which is based on circumstantial evidence the prosecution is required to prove the circumstances by laying reliable evidence and cumulative effect of all the circumstances must unerringly indicate towards guilt of the accused and in the process every hypothesis of innocence of the accused is completely ruled out. The law on circumstantial evidence the foundation for which was first laid in "Reg v. Hodge" (1838) 2 Lew. 227: 168 ER 1136 - applied and approved in "Hanumant Govind Nargundkar v. The State of Madhya Pradesh" AIR 1952 SC 343 - is still the law applied in the cases based on circumstantial evidence.

18. In "Hanumant Govind Nargundkar" the Hon'ble Supreme Court has observed as under:

"10......It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only 8 Cr. Appeal (DB) Nos.570 of 2014 and analogues matters

with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused...."

19. The prosecution story is unfolded in the evidence of the investigating officer because Rati Yadav who was the only eyewitness in the case did not support the prosecution in the Court and he was declared hostile. After abduction of Nand Kishor Singhania a ransom call demanding Rs.3 crores was made at the landline telephone bearing number 222529. On activating the caller ID of the said telephone ransom call was traced to a mobile phone carrying SIM number 9546517500. On further inquiry it was found that SIM number 9546517500 was used in two mobile sets bearing IMEI numbers 358273037298230 and 356072038249040 and two SIM numbers viz. 8809113929 and 9525312851 were also used in these mobile sets. It further transpired that SIM number 8877645684 was in continuous touch with SIM number 8809113929 and it was found that 7 calls were exchanged with these two numbers. The SIM number 8877645684 was also in the instrument having IMEI number 356072038249040 which was recovered from the same house from where three accused, namely, Chandan Kumar Singh, Sonu Kumar Singh and Rupesh Kumar Singh were arrested and Rati Yadav was rescued. The learned trial Judge has held that the prosecution evidence that the accused were in complete touch with each other with these SIM numbers is conclusive and from the materials on record it is proved that Nand Kishor Singhania was abducted for ransom.

20. A scientific evidence particularly relating to telecommunications (telephonic exchange) is a very important and useful evidence for the prosecution to establish involvement of the accused in the crime. The scientific evidence which has been produced by the prosecution regarding telephonic call produced by the prosecution however falls short in quality as well as reliability to establish connection of the appellants with kidnapping of Nand Kishor Singhania. The CDRs of SIM numbers 8809113929, 9525312851 and 9546517500 which were used by Saroj Singh do not connect any call made from a mobile phone carried by the appellants except 9 Cr. Appeal (DB) Nos.570 of 2014 and analogues matters

that a mobile phone with SIM number 8877645684 which was found in the house where Rati Yadav was kept in confinement. PW6 and PW7 are the seizure witnesses but they have also not supported the prosecution. PW6 has stated that his statement was not recorded by the police and in the cross- examination by the prosecution he denied that he put his signature over the seizure-memo. PW7 refused to identify his signature over the seizure-memo and he claimed in the Court that he is illiterate. We have been shown by the learned counsels for the appellants that Nishant Kumar and Maheshwar Mandal who are witnesses to recovery of mobile set from possession of Saroj Singh were not produced in the trial. We further find that SIM number 8877645684 which allegedly was used by Rupesh Kumar Singh was issued in the name of Shamir Ahmad but the said Shamir Ahmad was not examined in course of the investigation and there is no material on record to prove that SIM number 8877645684 was used by Rupesh Kumar Singh.

21. Out of sixteen witnesses who were examined by the prosecution, PW2 Manohar Singh, PW4 Niraj Kumar and PW5 Dhaneshwar Ram are employees of the factory. Their evidence is not helpful to the prosecution to establish that the appellants were involved in kidnapping for ransom of Nand Kishor Singhania. PW2 is the guard who brought a rikshaw for taking Nand Kishor Singhania to his house. He has deposed in the Court that next day morning he received a phone call from the wife of Nand Kishor Singhania asking him whether her husband was in the factory and at about 09:30 AM he came to know that Nand Kishor Singhania was abducted. PW4 and PW5 did not support the prosecution and they were declared hostile. PW3 Rati Yadav deposed in the Court that in the night around 07:30 PM while he was taking Singhania Babu to his house four persons apprehended them and took them away to an unknown place. They put a cap on his face and when he regained consciousness he found himself in a room. After he was declared hostile at the instance of the prosecution, he admitted in the cross-examination that his statement was recorded by the police. He has further admitted that in the room in which he was confined 2-4 (do chaar) persons were talking over phone and addressing someone by the name of Sarju Singh. He could have tendered vital evidence for the prosecution but he did not identify any of the appellants in the Court.

10 Cr. Appeal (DB) Nos.570 of 2014 and analogues matters

22. PW9 Dashrath Prasad Singh was posted at Mohanpur PS. He came to the Court to depose that he used to call Chunni Tiwari and Bablu Tiwari whose mobile number was 9852820775 about availability of buses. He has further stated that Bablu Tiwari and Chunni Tiwari had shops at bus stand. PW10 Krishna Kumar Sahu was posted at Deoghar (Town) PS. He has identified his signature over fardbeyan of Surender Singhania. He has stated in the Court that PW8 Shanti Devi informed him that ransom call was made at telephone number 222529 asking Rs.3 crores for release of her husband. He sent request mail to trace the call and location of mobile number 9546517500. He obtained the CDRs of different mobile phones and then conducted raid at Professor Colony, Farbishganj where Kanhaiya Chaudhary and Saroj Singh were arrested and from their possession mobile phones and SIM cards were recovered. PW11 Deobrat Poddar was officer-in-charge of Mohanpur PS. He deposed in the Court that he assisted PW10 in the investigation. PW13, PW14, PW15 and PW16 are also the police officers. PW13 who was officer-in-charge of Sangrampur P.S deposed in the Court regarding recovery of a headless body on 25th March 2011. PW14 and PW16 have deposed in the Court about arrest of the accused persons and seizure made from them. PW15 who was posted in the technical cell of the office of the S.P Deoghar proved the CDRs of mobile phones used by accused.

23. The evidences laid by these witnesses could have been helpful for the prosecution had there been direct or circumstantial evidence establishing complicity of the appellants in the crime, but in absence of any such evidence and more particularly after PW3 Rati Yadav did not support the prosecution and was declared hostile, rest of the witnesses who testified in the Court for the prosecution could not have proved the charges under sections 364-A, 302, 201 and 120-B of the Indian Penal Code.

24. The informant came back home early and did not inquire about his father. PW8 who is wife of Nand Kishor Singhania had also gone to bed without inquiring about her husband. She has tried to explain in the Court that she took medicines and fell asleep and in the same breath she said that she called at factory at around 01:00-01:30 PM but no one picked up the phone so she fell asleep. The accused who were sent-up for trial were not known to the informant. Rati Yadav who appears to be the only eyewitness has also not claimed previous acquaintances with the accused persons.

11 Cr. Appeal (DB) Nos.570 of 2014 and analogues matters

Though there is no requirement in law to conduct test identification and the investigating officer is not under any statutory compulsion to hold test identification of the accused. But the lapse on the part of the investigating officer not to conduct test identification may assume materiality if the dock identification by the witnesses is found not above board.

25. We are mindful that a large number of prosecution witnesses did not support the prosecution in the Court though abduction and murder of Nand Kishor Singhania are well proved. The appellants are however not required to prove their innocence and as held in "Shambhu Nath Mehra v. The State of Ajmer" AIR 1956 SC 404 that section 106 of the Evidence Act cannot be used to undermine the well established rule of law that, save in a very exceptional class of cases, the burden is on the prosecution and never shifts.

26. Mr. Shekhar Sinha, the learned Public Prosecutor would urge in the last ditch effort to support the judgment of conviction in S.C. No.44 of 2012 and contend that silence of the appellants when they were examined under section 313 of the Code of Criminal Procedure must lean against them.

27. Section 313 of the Code of Criminal Procedure gives a valuable right to the accused and it provides an opportunity to the accused to explain the incriminating circumstances associated with him. But silence of the accused which can provide an additional link in the chain of circumstances cannot be the sole basis to convict him. But before an adverse inference can be raised against the accused the prosecution must prove by producing clinching evidence that there are no other possibilities in the case and it was the accused who has committed the crime. The appellants have not offered any explanation to the incriminating circumstance that they were found in the house where Rati Yadav was kept in confinement, but then this circumstance alone is not sufficient to hold them guilty. As noticed above, we find that the materials laid by the prosecution during the trial were insufficient and do not conclusively connect the appellants with the crime.

28. In "Sujit Biswas v. State of Assam" (2013) 12 SCC 406 the Hon'ble Supreme Court has observed as under:

"25. An adverse inference can be drawn against the accused only and only if the incriminating material stands fully established, and the accused is not able to furnish any explanation for the same. However, the accused has the right to remain silent, as he cannot be forced to become a witness against himself."

12 Cr. Appeal (DB) Nos.570 of 2014 and analogues matters

29. In view of the aforesaid discussions, we hold that the prosecution evidence against the appellants is not sufficient to hold them guilty under section 364-A read with section 120-B of the Indian Penal Code and, accordingly, their conviction and order of sentence for the aforesaid offence passed in S.C. No. 44 of 2012 are set aside.

30. Mr. Shekhar Sinha, the learned Public Prosecutor states that the appellants are in custody.

31. Accordingly, the appellants, namely, Kanhaiya Chaudhary @ Sashi Chaudhary [in Criminal Appeal (DB) No. 570 of 2014], Chandan Kumar Singh [in Criminal Appeal (DB) No. 603 of 2014], Sonu Kumar Singh [in Criminal Appeal (DB) No. 704 of 2014] and Rupesh Kumar Singh [in Criminal Appeal (DB) No.793 of 2014] shall be released forthwith, if not wanted in connection to any other case.

32. In the result, Criminal Appeal (DB) No. 570 of 2014, Criminal Appeal (DB) No. 603 of 2014, Criminal Appeal (DB) No. 704 of 2014 and Criminal Appeal (DB) No. 793 of 2014 are allowed.

33. Let the lower Court records be transmitted to the Court concerned, forthwith.

34. Let a copy of the Judgment be transmitted to the Court concerned through 'FAX'.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 5th October, 2021 R.K./sudhir NAFR