Gagan Kumar vs The State Of Bihar
2022 Latest Caselaw 2960 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.44 of 2014
 Arising Out of PS. Case No.-110 Year-2009 Thana- SHRIKRISHNAPURI District- Patna
======================================================

Vijay Krishna, son of Late Sabuj Singh, resident Of Village-Kalyanpur, Police Station- Athmalgola, District - Patna

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 165 of 2014 Arising Out of PS. Case No.-110 Year-2009 Thana- SHRIKRISHNAPURI District- Patna ====================================================== Gagan Kumar, son of Late Arjun Kumar, resident of Village-Bahapur, P.S.- Shalimpur, Bakhtiyarpur District-Patna

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 167 of 2014 Arising Out of PS. Case No.-110 Year-2009 Thana- SHRIKRISHNAPURI District- Patna ====================================================== Chanakya @ Guddu, son of Vijay Krishna, resident of Village-Kalyanpur, Police Station-Athmalgola, District-Patna

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 211 of 2014 Arising Out of PS. Case No.-110 Year-2009 Thana- SHRIKRISHNAPURI District- Patna ====================================================== Umesh Singh @ Umesh Prasad Singh, son of Late Rajendra Prasad Singh, resident of Village-Alawalpur, Police Station-Gaurichak, District-Patna

... ... Appellant/s Versus The State of Bihar Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 44 of 2014) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Mr. Rajesh Singh, Advocate Mr. Ram Binay Singh, Advocate For the Informant : Mr. Jai Prakash Singh, Advocate Mr. Amit Narayan, Advocate For the State : Mr. Dr. Mayanand Jha, APP (In CRIMINAL APPEAL (DB) No. 165 of 2014) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Mr. Rajesh Singh, Advocate Mr. Ram Binay Singh, Advocate For the Informant : Mr. Jai Prakash Singh, Advocate Mr. Amit Narayan, Advocate For the State : Mr. Abhimanyu Sharma, APP (In CRIMINAL APPEAL (DB) No. 167 of 2014) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Mr. Rajesh Singh, Advocate Mr. Ram Binay Singh, Advocate For the Informant : Mr. Jai Prakash Singh, Advocate Mr. Amit Narayan, Advocate For the State : Mr. Abhimanyu Sharma, APP (In CRIMINAL APPEAL (DB) No. 211 of 2014) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Mr. Rajesh Singh, Advocate Mr. Ram Binay Singh, Advocate For the Informant : Mr. Jai Prakash Singh, Advocate Mr. Amit Narayan, Advocate For the State : Mr. Abhimanyu Sharma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR And HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR)

Date : 20-05-2022

Heard the parties.

2. The appellants have challenged the judgment of

conviction dated 2nd of December, 2013 and the order of

sentence dated 4th of December, 2013 passed by the learned

Additional District & Sessions Judge, Xth, Patna in connection Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

with Sessions Trial Nos. 1007 of 2010, 1008 of 2010 and

1009 of 2010, arising out of Shri Krishna Puri P.S. Case No.

110 of 2009.

3. By the aforesaid judgment dated 2nd of

December, 2013, the appellant/Chankya @ Guddu has been

convicted under Sections 302, 201, 120(B) of the Indian

Penal Code and Section 27 of the Arms Act whereas other

appellants have been convicted for the offences punishable

under Sections 302/34, 201/34 and Section 120(B) of the

Indian Penal Code (for short I.P.C).

4. After hearing the convicts on the point of

sentence, vide consequential order dated 4 th of December,

2013, the Trial Court sentenced the appellant/Chankya @

Guddu to undergo imprisonment for life, fine of rupees

twenty five thousands and in default of payment of fine,

three months simple imprisonment for the offence punishable

under Section 302 of the Indian Penal Code, rigorous

imprisonment for three years, fine of rupees five thousands

and in default of payment of fine, three months simple Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

imprisonment for the offence punishable under Section 201 of

the Indian Penal Code and rigorous imprisonment for three

years, fine of rupees five thousands and in default of

payment of fine, three months simple imprisonment for the

offence under Section 27 of the Arms Act. The

appellant/Vijay Krishna has been directed to undergo

imprisonment for life, fine of rupees twenty five thousands

and in default of payment of fine, three months simple

imprisonment for the offence punishable under Section

302/34 of the Indian Penal Code, rigorous imprisonment for

three years, fine of rupees five thousands and in default of

payment of fine, three months simple imprisonment for the

offence punishable under Section 201/34 of the Indian Penal

Code. The appellants Umesh Prasad Singh and Gagan Kumar

have been directed to undergo imprisonment for life, fine of

rupees five thousands each and in default of payment of fine,

three months simple imprisonment for the offence punishable

under Section 302/34 of the Indian Penal Code, rigorous

imprisonment for three years, fine of rupees one thousand Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

each and in default of payment of fine, three months simple

imprisonment for the offence punishable under Section

201/34 of the Indian Penal Code. The appellants were not

sentenced under Section 120(B) of the Indian Penal Code. All

the sentences were directed to run concurrently.

5. The Sessions Trial in which the impugned

judgment and order was passed relates to the First

Information Report (in short 'F.I.R') that had been registered

on 24.05.2009 as Shri Krishna Puri P.S. Case No. 110 of

2009 under Sections 365, 364, 302, 201, 120(B) of the

Indian Penal Code and Section 27 of the Arms Act.

6. The prosecution case as recapitulated hereunder

is based on the written report of Girish Prasad Singh (P.W. 1)

who has stated that on 23.05.2009, his younger brother

Satyendra Prasad Singh (deceased) went out from his house

along with his relative appellant/Vijay Krishna, Ex. M.P in the

morning by Sumo Victa car and got down at Guinni Motors,

Boring Canal Road and told to appellant/Vijay Krishna to go

as he would have to go for by-election after taking bath and Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

meal. However, when after a considerable period of time, he

did not return home, the informant contacted him on his

mobile numbers but both numbers were found switched off.

Thereafter, an information was given to the police control

room in the late night. In the next morning, one of the mobile

numbers of the brother of the informant was found busy but

after several attempts, no response was made from the other

side. The informant raised a suspicion that his brother might

have been kidnapped.

7. On the basis of the written application of the

informant, on 24.05.2009, a formal F.IR was lodged against

unknown and investigation was accordingly initiated.

8. During the course of investigation, the driver of

the Sumo Victa car namely Vivek Singh (P.W.8) in his 164

Cr.P.C statement has stated that on the alleged date of

occurrence, Satyendra Singh (deceased) went to MLA Flat

No. 83 from his house where he met appellant/Vijay Krishna

and from there, Satendra Singh(deceased), appellant/Vijay

Krishna and his bodyguard namely appellant/Umesh Prasad Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

Singh went to an apartment situated in Boring Canal Road.

As soon as car was stopped, all the three persons went

upstairs of the apartment but only two persons

appellant/Vijay Krishna and his bodyguard came down and

sat in the car. P.W. 13, Dharmendra Kumar has stated in his

164 Cr.P.C statement (Ext-12) that on 23.05.2009 at about

11 a.m, he heard sound of such like falling of anyone. He

saw that appellant/Vijay Krishna and his bodyguard are

coming down stair from the flat. Thereafter, they went away

sitting in the car. P.W. 14, Chunkeshwar Prasad has stated in

his statement under Section 164 Cr.P.C that about 9 a.m,

Ex-MP Vijay Krishna along with his bodyguard sat into the

Summo Victa Car and went away from there. On the

identification of appellant/Gagan Kumar, blood stained

pochha (a cloth used for cleaning the floor), blood from the

bottom of bucket and blood from the drain of bathroom were

found in Flat No. D/2 at Jhula Niketan. The blood was seized

from the place of occurrence and sent to the Forensic Science

Laboratory for examination. The dead body of the kidnapped Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

was recovered from the river Ganga and was identified from

his clothes by his relatives. The dead body was thereafter

sent for postmortem. In the postmortem report, the cause of

death was due to firearm injuries.

9. After completing the investigation, charge-sheet

has been submitted against the appellants under Sections

364, 302, 201, 120(B) of the Indian Penal Code and Section

27 of the Arms Act after finding the case true, and

cognizance has been taken. Thereafter, the case was

committed to the Court of Sessions for trial and disposal. The

charges were read over and explained to the

accused/appellants to which they pleaded not guilty and

claimed to be tried. Their defence is that they have falsely

been implicated in this case and the occurrence did not take

place in the manner as alleged by the prosecution.

10. After hearing the parties, learned Trial Court

held the appellants guilty. Accordingly, the appellants were

convicted and sentenced as indicated in the opening

paragraph of the judgment.

Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

11. We have heard learned counsel for the

appellants, informant as well as learned A.P.P for the State.

12. To substantiate the charges levelled against the

accused persons, altogether twenty four witnesses have been

examined on behalf of the prosecution.

13. P.W.1 Girish Prasad Singh is the informant

and brother of the deceased who has stated in his evidence

that on the alleged date, he along with Satyendra Singh

(deceased) and his wife were taking tea at the house of

Satyendra Singh (deceased) when appellant/Vijay Krishna

called on his mobile. After talking on phone, the deceased

went to the MLA Flat No. 83 with his driver Vivek Singh

(P.W. 8) by Sumo Victa car. When the deceased did not

return home after a considerable period of time, the

informant contacted on his mobile phones but the numbers

were found to be switched off. When he did not return home

by the evening, his friend Umesh Ji contacted appellant/Vijay

Krishna on his mobile and asked about Satyendra Singh

(deceased) but he completely denied about the whereabouts Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

of the deceased and stated that he met him in the morning

but he got down at Boring Canal road to get some repair

work in the car. The appellant/Vijay Krishna suggested to

search him in the Railway Station or Hospital and inform to

the P.C.R. The informant has further stated that

appellant/Vijay Krishna has suggested him to lodge a case of

kidnapping of Satyendra Singh (deceased) at Shri Krishnapuri

Police Station and told to talk to the officials in this matter.

One day after lodging of the case, this witness came to know

that his brother had been murdered. The dead body of

Satyendra Singh was recovered on 11.06.2009 from the

river. The informant also stated that these appellants are

involved in the murder of his brother. The informant denied

the suggestion of the defence that he has wrongly said that

he has got the F.I.R registered on the advice of

appellant/Vijay Krishna. He has also denied that he has

registered the case on the advice of the politicians. In his

cross-examination at para 25, he has admitted that dead

body of his brother was found floating near Dullighat of river Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

Ganga. He also denied the suggestion of the defence that

only he and the Investigating Officer were present at the time

of fishing out the dead body.

14. P.W. 2 Sanjay Kumar Singh is the nephew of

the deceased who has stated in his evidence that at 6 to 7

a.m in the morning on 23.05.2009, he was sitting on the

ground floor of his house when he saw from his window that

his uncle Satyendra Singh (deceased) went out of his house

with his driver Vivek Singh (P.W. 8) by his Sumo Victa car.

When he enquired from his aunt (P.W. 17), she told that

appellant/Vijay Krishna had made a call and his uncle had

gone to meet him at M.L.A. Flat No. 83. P.W. 2 has stated

that when till 10 P.M in the night, his uncle could not be

traced then his aunt called him and Girish Prasad Singh of his

locality and told us to go to the residence of appellant/Vijay

Krishna and enquire about Satyendra Singh (deceased) who

stays at night in White House at Buddha Marg. He has

deposed that appellant/Vijay Krishna suggested them to go to

P.M.C.H and Railway Station to locate him. After searching Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

everywhere, a complaint was lodged at 3 a.m to the P.C.R.

This witness further deposed that he went to M.L.A Flat No.

83 along with Girish Prasad in the morning 25.05.2009 when

appellant/Vijay Krishna suggested to lodge an F.I.R at Shri

Krishnapuri Police Station. This witness has also deposed that

Vivek Singh(P.W. 8), driver of Sumo Victa car told Sudhir

Kumar (P.W. 4), driver of his uncle that appellant/Vijay

Krishna had gone to Jhula Niketan with his bodyguard

appellant/Umesh Prasad Singh and Satyendra

Singh(deceased). Again on 26.05.2009, he repeated the

same facts before him and Girish Prasad. He stated that all

the three persons appellants Vijay Krishna, Umesh Prasad

Singh and Satyendra Singh (deceased) had gone to Jhula

Niketan. Satyendra Singh (deceased) stayed upstairs and

appellants Vijay Krishna Umesh Prasad Singh had returned to

MLA Flat No. 83 by the same car. P.W. 2 has deposed that

on 26.05.2009, the lock of Flat No. D/2 of Jhula Niketan was

broke-open before the Magistrate and Police and from the

bedroom of appellant/Chanakya @ Guddu, electricity bill, Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

passbook of State Bank of India, Cheque book, papers of car,

papers of mobile were seized by the Investigating Officer

Ravindra Prasad Yadav and accordingly, seizure list (Ext-2)

was prepared. Again on 03.06.2009, the lock of Flat No. D/2

of Jhula Niketan was opened in presence of the Magistrate,

Police and officials of the Forensic Science Laboratory. The

mark of blood was found in the drain of the bathroom. The

F.S.L officials took the sample of blood, fiber of cloth and a

short of white colour which was stained with blood. The

Investigating Officer Ravindra Prasad Yadav seized the

articles and prepared seizure list. This witness further

deposed that on 11.06.2009, the police called him at

Gaighat. He along with Girish Prasad Singh(P.W. 1), naval

personnel and Investigating Officer Girish Prasad Singh

proceeded by a boat to look for the dead body of Satyendra

Singh. While looking for the dead body they reached near

Dullighat where they saw a dead body. The dead body

wearing white shirt and white trouser was very much

decomposed. The dead body was fished out and examined Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

after putting off the trouser. The aunt and cousin sister

identified the dead body as of Satyendra Singh. A number

was inscribed with black thread on the inner pocket of

trouser. The aunt said that uncle used to stitch his trouser in

Fine Tailor. The number was verified at the shop and it was

confirmed that the dead body was of Satyendra Singh. This

witness has also deposed that his statement was recorded by

the police under Section 164 of the Cr.P.C on which he put

his signature (Ext-5). This witness has denied the suggestion

of the defence that in the day and night of 23.05.2009

appellant/Vijay Krishna was in his village Kalyanpur and was

not present in Patna and after receiving information of

missing of Satyendra Singh(deceased), he came to Munna

Chak in the evening on 24.05.2009. This witness also denied

that he is unintentionally concealing this fact that

appellant/Vijay Krishna visited his house at Munna Chak in

the morning of 24.05.2009. The statement of this witness

(Ext-5) recorded under Section 164 Cr.P.C appears to be

based on hearsay.

Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

15. P.W. 3 Aisa Singh is the daughter of the

deceased who has identified the dead body of her father. She

was called by the Police in P.M.C.H on 06.06.2009 for her

sample of blood. In para 6 of her evidence she had denied to

have stated before the police that on 27.05.2009 she was at

her matrimonial house at Gaurichak. This witness appears to

be a hearsay witness.

16 P.W. 4 Sudhir Kumar is the driver of Satyendra

Singh who has deposed that on 23.05.2009 at about 6 to 7

p.m. the wife of Satyendra Singh (deceased) called him and

informed that her husband had gone to meet appellant/Vijay

Krishna with his driver Vivek Singh (P.W. 8) by Bolero vehicle

and since then he is traceless. At about 6 p.m. in the

evening, he went along with Sanjay Kumar Singh (P.W. 2)

and Girish Prasad Singh (P.W.1) to the White house where

appellant/Vijay Krishna used to reside. Appellant/Vijay

Krishna suggested them to search him at Railway station and

hospital and do not tell anything to media people. In the

morning of 24.05.2009, he again went to M.L.A Flat No. 83 Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

with Lakshmi Devi (deceased wife), Sanjay Kumar Singh and

Girish Prasad Singh. Till that time, Vivek Singh (P.W. 8) was

outside. He further stated that when he enquired from Vivek

Singh (P.W.8) about Satyendra Singh(deceased), he had

stated that the deceased had stayed in the flat at Jhula

Niketan and only appellant/Vijay Krishna and his bodyguard

appellant/Umesh Prasad Singh returned. While he was asking

from Vivek Singh (P.W.8), appellant/Umesh Prasad Singh

came there and informed that Satyendra Singh (deceased)

got down at Guini Motors. This witness has identified his

signature (Ext-8) on his statement made under Section 164

Cr.P.C but in para 15 of his cross examination, he has stated

that he does not remember that he has stated before the

Magistrate that the occurrence has taken place on

23.05.2009. His statement under Section 164 Cr.P.C (Ext-8)

was recorded where he has stated the fact on the basis of

hearsay. He has deposed that he does not remember the

statement which was given before the Magistrate.

17. P.W. 5 Veer Bahadur Prasad is also a driver Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

who has stated in his evidence that on 23.05.2009, he was

on leave. On 11.06.2009, he was at his house when he came

to know that dead body of Satyendra Singh had been

recovered from the river. He went to Dullighat and identified

the dead body as of Satyendra Singh. He has also deposed

that on 16.06.2009, he went along with Sanjay Kumar Singh

(P.W. 2) to Jhula Niketan where the properties of

appellant/Vijay Krishna was being attached. He put his

signature on the seizure list (Ext-6/1) prepared by the Police.

18. P.W. 6 Sunil Kumar Singh is a witness to the

inquest report of Satyendra Singh (deceased). He has

deposed that he had gone to Dullighat in the night of

11.06.2009 and put his signature on the panchanama of the

dead body of Satyendra Singh.

19. P.W. 7 Popindra Prabhat @ Bunti is a

resident of Jhula Niketan who was living on fourth floor in

Flat No. B/4. This witness has deposed that on 23.05.2009,

he came to know from the Security Guards and some people

of the apartment that a sound of gunshot firing was heard Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

from Flat No. D/2 which was being used by

appellant/[email protected] He also came to know that

appellant/Gagan Kumar was also residing in the said flat with

appellant/[email protected]

20. P.W. 8 Vivek Singh is the prime and star

witness of last seen and the driver of Satyendra Singh

(deceased). As per the prosecution case, on 23.05.2009

Satyendra Singh (deceased) went along with P.W. 8 to meet

appellant/Vijay Krishna in M.L.A Flat No. 83 and since then

he was traceless. But, P.W. 8, in his evidence has denied to

go anywhere on 23.05.2009. He completely denied to go in

the residence of Satyendra Singh (deceased) on 23.05.2009.

In course of trial, he did not identify the accused persons

present in the Court room. This witness has denied the

suggestion of the prosecution that he has concealed the true

facts in collusion with the accused persons and given false

evidence in the Court.

21. P.W. 9 Md. Iqbal is the owner of Fine Tailor

where Satyendra Singh (deceased) used to stitch his clothes. Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

He has stated in his evidence that he stitches the label of fine

tailor and mentions serial number and customer number. He

identified the number stitched in the trouser of the deceased

after verifying it from his computer to be of Satyendra Singh

(deceased).

22. P.W. 10, Krishna Dome has stated in his

evidence that at 4:00 p.m in the evening of 11.06.2009, he

was at Dulhighat. He fished out the dead body of Satyendra

Singh from the river Ganga.

23. P.W. 11, Rajeev Kumar is a driver who has

stated in his evidence that before the occurrence, he was

driver of Satyendra Singh(deceased). He has stated that

about 4-5 days before the occurrence, he had gone to the

Jhula Niketan with appellants Vijay Krishna and Umesh

Prasad Singh where appellant/Vijay Krishna told his son

Chanakya @ Guddu to shoot Satyendra Singh (deceased) and

throw him in river Ganga, keeping his body in a box.

However, this witness has not stated anything either to

Satyendra Singh (deceased) or any family members of Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

Satyendra Singh. He had gone to Jhula Niketan on

03.06.2009 with the nephew of the deceased where the

evidences were collected and properties of appellant/ Vijay

Krishna were being attached but there also he did not

disclose anything either to the Investigating Officer or any

family member of Satyendra Singh which creates serious

doubt about the authenticity of the version of this witness.

24. P.W. 12 Brajesh Kumar Singh @ Vijendra

Singh has stated in his evidence that on 23.05.2009 at

about 7 p.m, Lakshmi Singh (P.W. 17) enquired from him on

phone whether he had seen Satyendra Singh(deceased). This

witness has stated that he had gone along with other family

members of deceased to M.L.A Flat No. 83 to meet

appellant/Vijay Krishna and made an enquiry regarding the

whereabouts of Satyendra Singh (deceased) but he

completely denied to know anything about the deceased and

suggested to register an F.I.R. He does not identify

appellant/Gagan Kumar. He also denies that deceased was

his relative.

Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

25. P.W. 13 Dharmendra Kumar is a Security

Guard who has stated in his evidence that on 23.05.2009, he

was working in an apartment near Boring Road. Chunkeshwar

Prasad (P.W. 14) was also working with him. This witness has

stated that he was beaten up badly by the police before

recording the statement because he was not stating what the

police wanted. While deposing before the Magistrate, he did

not tell that he was beaten up by the police because the

police was accompanying him. This witness has been declared

hostile. He has retracted from the statement which was given

before the Magistrate and stated that he made such

statement due to pressure, torture and assault caused by the

Police.

26. P.W. 14 Chunkeshwar Prasad is also a

Security Guard who has stated in his evidence that on

23.05.2009 at 9 a.m in the morning he was cooking meal.

Dharmendra Kumar (P.W. 13) was also working with him as

Security Guard. He has deposed that nobody had come in the

apartment so long as they were present there. In the next Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

day, the police came, caught him and locked him up from

24.05.2009 to 01.06.2009. In his knowledge, no

Investigating Team had come in the apartment and neither

any blood stained cloth was seized. This witness has also

been declared hostile. He has also retracted from the

statement which was given before the Magistrate and stated

that he made such statement due to pressure, torture and

assault caused by the police

27. P.W. 15 Sumit Kumar Singh has stated in his

evidence that he went in the shop of Fine Tailor to tally the

number stitched on the trouser of the deceased. He has

admitted that deceased was his Fufa (Husband of father's

sister).

28. P.W. 16 Shailendra Kumar Singh has stated

in his evidence that on 26.05.2009, when the lock of Flat

No. D/2 was opened, he was there with the Police. He put his

signature on the seizure list prepared by the police.

29. P.W. 17, Lakshmi Singh is the wife of the

deceased who has stated in her evidence that on 23.05.2009 Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

at about 8 to 9 a.m, appellant/Vijay Krishna called her

husband and told him to immediately come at MLA Flat No.

83. His husband thereafter rushed to the MLA Flat No. 83

along with his driver Vivek Singh (P.W. 8) by his Sumo Victa

car. He has deposed that when her husband did not return

whole day, she called driver Sudhir Kumar (P.W.4) at about 6

to 7 p.m in the evening and told him to go to M.L.A Flat No.

83 and enquire from appellant/Vijay Krishna about her

husband. Her family members made a call to appellant/Vijay

Krishna who received his call and stated that Satyendra Singh

(deceased) got down near Guini Motors at 8:30 a.m. He also

conveyed that he returned back to M.L.A Club No. 83 with

driver Vivek Singh (P.W. 8). She further deposed that Girish

Prasad Singh (P.W.1) and Sanjay Kumar Singh (P.W.2) went

to meet appellant/Vijay Krishna at White House who

conveyed that Satyendra Singh (deceased) got down from

the car at 8 am near Guinni Motors for going to the house.

He also suggested to search in the Railway Station, private

nursing home and P.M.C.H. He also suggested to register a Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

case in this regard. She further deposed that driver Sudhir

Kumar (P.W. 4) told her that when he asked driver Vivek

Singh (P.W. 8) as to where did he drop Satyendra Singh

(deceased), he said that he went to M.L.A Flat No. 83 taking

Satyendra Singh (deceased) and from there, Satyendra Singh

(deceased), appellant/Vijay Krishna and his bodyguard

appellant/Umesh Prasad Singh sat in the car and came to

Jhula Niketan. All the three went up stairs in the flat where

son of appellant/Vijay Krishna namely appellant/Chankya @

Guddu was living along with his servant appellant/Gagan

Kumar and he (P.W.8) stayed on the ground floor. After 10-

15 minutes, appellants Vijay Krishna and Umesh Prasad

Singh came down stairs quite nervous and asked him to move

and when he enquired about Satyendra Singh (deceased)

they told that he had gone away. On getting such information

from Sudhir Kumar (P.W. 4), Police was informed. The police,

thereafter started investigating the matter. The dead body of

her husband was recovered from Dullighat on 11 th of June,

2009 and in order to ensure the identification of the dead Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

body and DNA test, blood samples of her daughter, Aisha,

Girish Prasad Singh were taken.

30. P.W. 18, Dr. Pankaj Kumar is a formal

witness who has proved the postmortem report (Ext-15). On

inspection and dissection of the dead body, he found the

following ante-mortem injuries:-

"External appears:- R.M absent, decomposition was present adipocere formation present on chest, abdomen upper and lower limb, skull and face was devoid of soft tissues and skin mandible was missing small bones of hand and foot was missing, penis and serotium was present sixteen secant on upper jaw was present.

On examination, the body was in advance stage of decomposition. On entry wound 1/4" X 1/4" was found on left side back of skull near left parietal occipital of rupture 3 ½" above and behind left ear orifice 2" left from midline. On exit would 3 ½" x 2" found on right side of skull and, face (right nekillo right temporal, right occipital bones was missing) 2" right from midline one linear fracture 4" long was found on right temporal parietal area of skull. Brain matter was not found cranial cavity was filled with mud, xiphoid was found united with Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

sternum. Stomach was found empty. Viscera were in advance way of decomposition.

Routine viscera was preserved for chemical analysis of a precautionary measures, two teeth, on humerus bone, part of heart muscle, sternum bone was present for DNA test and handed over to the constable accompanied the body."

31. In the opinion of the doctor, the death occurred

two to three weeks before from the date of autopsy and the

cause of death was due to head injury by firearm.

32. P.W. 19 Shiva Kumar, technical officer of the

Forensic Science Laboratory has stated in his evidence that

he received cloth piece (Mark-A), Cotton Swab (Mark-B),

Cotton Swab (Mark-C). On chemical examination, human

blood was found in both of them. The blood group was AB. In

para 5 of his evidence, this witness has stated that he was in

the team at the time of autopsy of the deceased.

33. P.W. 20, Ravindra Kumar Yadav is the

Investigating Officer of this case who has stated in his

evidence that he has been handed over the charge of

investigation. He has recorded the re-statement of the Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

informant. He, thereafter reached at the place of occurrence

near Guinni Motors at Boring Canal Road on 24.05.2009 at

about 10 a.m and inspected the place of occurrence but no

clue in respect of Satyendra Singh (deceased) was found

there. Thereafter, he went to M.L.A Club No. 83 and met

appellant/Vijay Krishna and recorded his statement. He

interrogated Vivek Singh (P.W. 8) and recorded his

statement. In order to verify the statement of Vivek Singh

(P.W. 8), he went to Jhula Niketan and recorded the

statements of its security Guards namely Dharmendra Kumar

@ Tuntun (P.W. 13) and Chunkeshwar Prasad (P.W. 14) and

sent them to Court to get their statements recorded under

Section 164 Cr.P.C. He has deposed that on 26.05.2009, Flat

No. D/2 was unlocked and subsequently seizure list was

prepared. This witness has further deposed that on

26.05.2009, no useful clue was found in course of

examination by the officials of Forensic Science Laboratory in

Flat No. D/2. On 27.05.2009, in presence of Magistrate and

FSL team, Flat No. D/2 was again unlocked but again the FSL Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

team could not find any useful clue. This witness has further

deposed that on 31.05.2009, he reached Khusarupur Police

Station and recorded the statement of witness Santosh

Kumar and on the basis of such statement, he apprehended

appellant/Gagan Kumar and on the basis of confessional

statement of appellant/Gagan Kumar, he went to the Gaighat

along with other police officials in search of the dead body of

Satyendra Singh (deceased). He has proved the confessional

statement of appellant/Gagan Kumar(Ext-19). P.W. 20 has

further deposed that on the basis of confessional statement

of appellant/Gagan Kumar, Flat No. D/2 was again opened

and forensic team inspected the flat. Appellant/Gagan Kumar

showed the cloth with which he had wiped blood. During

preliminary examination of a piece of cloth (Pochha) by the

F.S.L team, it was found that there were drops of blood on it

and drops of blood were also found on the bottom of green

bucket kept in the bathroom. Thereafter, a seizure list(Ext-

14/1) of both the articles were prepared and Deepak Tiwary

and Chunkeshwar Prasad put their signatures on the seizure Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

list. On the basis of confessional statement (Ext-20) of

appellant/ Gagan Kumar, appellant/Umesh Prasad Singh was

arrested. The dead body was searched in Ganga river but no

dead body was recovered. Again on 03.06.2009, Flat No. D/2

was opened and blood drop was recovered from the drain of

bathroom. A white shirt containing blood stains was also

recovered and seized. This witness has further deposed that

on 11.06.2009, a dead body was fund at Dullighat which was

identified by the family members of the deceased to be the

dead body of Satyendra Singh. He prepared inquest report of

the dead body and brought it to the PMCH for its

postmortem. The postmortem was done on 12.06.2009. He

took the blood samples of Mrs Lakshmi Singh (P.W. 17) and

Girish Prasad Singh (P.W.1) and sent the same to the F.S.L,

Hyderabad. He has recorded the confessional statement of

appellant/Vijay Krishna on 21.08.2009. He also recorded the

statement of appellant/Chanakya @ Guddu and submitted

charge-sheet against Umesh Prasad Singh and Gagan Kumar

on 28.08.2009. On the basis of confessional statement of Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

appellant Chanakya @ Guddu the C.D.R of his mobile and

mobile of Umesh Prasad Singh was perused when it was

found that on 23.05.2009 at 9:37 a.m, he talked with Umesh

Prasad Singh and the mobile location of Umesh Prasad Singh

was found near the vicinity of Gandhi Setu. This witness has

further stated that on 29.01.2020, he recorded the statement

of Radhe Prasad (Court Witness No. 1) who has stated that

on the date of of occurrence, he had talked with the

deceased. In para 73, this witness has accepted that since

the said flat of Jhula Niketan was unlocked on 26.05.2009, it

was under his care and he was keeping the lock and key in

his possession since then as no body came to take the same.

He has further stated that on 26.05.2009, Flat No. D/2 was

not inspected and searched nor Sumo Victa car was

inspected. In para 80, this witness has accepted that in the

case diary, he has not mentioned the name of the expert who

had collected the blood sample from drains, bucket and a

piece of cloth meant for wiping the floor. He has also

accepted in para 95 of the case diary that after arresting Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

appellant/Gagan Kumar from Tulsigarh, he had not prepared

the arrest memo, which he should have prepared. In para

109, this witness has denied the suggestion of the defence

that appellant Umesh Prasad Singh was arrested on

26.05.2009 and kept under Hazat till 31.05.2009. In para

121, this witness has accepted that he has not recorded this

fact in the case diary that the dead body was recovered on

the basis of confessional statement of Umesh Prasad Singh.

This witness has further stated that he has not seized the

mobile of Chanakya @ Guddu, the call details of which has

been stated and he had also not seized the mobile through

which Satyendra Singh(deceased) was called on 23.05.2009.

He had also not seized the mobile of Umesh Prasad Singh

and Raju Prasad. In para 126, this witness has stated that

while the dead body was found on 11.06.2009, the box was

searched in its vicinity but the same was not found. In his

confessional statement, appellant/Gagan Kumar had stated

about keeping the dead body inside the box and throwing the

same in the river. In para 128, this witness has stated that in Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

course of investigation, the wife of the deceased, his nephew,

brother and other family members have not stated as such

that enmity between appellant/Vijay Krishna and the

deceased was going on from before. In para 134, he has

stated that Aisha Singh (P.W. 3) had made statement before

him that on 27.05.2009, she was in her matrimonial house at

Gaurishak and from there she talked to her mother(deceased

wife). This witness had not stated as such that she was

present in Pune on 23.05.2009.

34. P.W. 21 Akhilesh Kumar Singh has stated in

his evidence that on 26.05.2009, he was working as Judicial

Magistrate, 1st Class, Patna and recorded the statements of

Vivek Singh (Ext-11/1), Chunkeshwar Prasad (Ext-13/1) and

Sudhir Kumar (Ext-8/1) under Section 164 of the Cr.PC.

They put their signatures after finding the same to be correct.

In his cross examination, he has stated that witness Sudhir

Kumar had not stated the number of Sumo Victa Car and the

name of Driver Vivek Singh.

35. P.W. 22, Rajendra Kumar Tripathi has stated Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

in his evidence that on 30.05.2009, he was posted as Judicial

Magistrate, 1st Class, Patna and recorded the statements of

Popindra Prabhat (Ext-10/1), Dharmendra Kumar (Ext-12/1)

and Sanjay Kumar Singh @ Pappu (Ext-5/1) under Section

164of the Cr.P.C. They put their signatures after finding the

same to be correct. In his cross examination, this witness

has stated that Sanjay Kumar Singh has not stated the

number of Sumo Victa and the name of driver Vivek Singh

rather, he stated the name of Raju.

36. P.W. 23 Sainky Singh is the son of the

deceased who has stated in his evidence that on 23.05.2009,

he was in America. On 27/28.05.2009, he came to know that

his father was missing from his house since 23.05.2009. He

came to his house at Patna on 08.06.2009. On 11.06.2009,

he went along with his mother and sister at Dhulighat and

identified the dead body of his father. He has also stated that

his father used to talk with him every day and he had a wish

to fight election but he had apprehension from appellant/Vijay

Krishna because he did not want him to fight election. Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

37. P.W. 24, Anirudh Kumar has stated in his

evidence that Satyendra Singh (deceased) used to live with

appellant/Vijay Krishna. This witness has been declared

hostile.

38. On behalf of the defence one Court witness and

four defence witnesses have been examined.

39. Court Witness No. 1, Radhe Prasad has been

examined on behalf of the defence who has stated in his

evidence that SIM no. 9304492140 through which a call was

made to Satyendra Singh (deceased) is in the name of his

wife Fula Devi. He has stated in his evidence that someone

demanded his mobile on 23.05.2009 and talked to Satyendra

Singh(deceased). He completely denied that appellant/Vijay

Krishna used his mobile to call Satyendra Singh. He also

denied that on 23.05.2009 at 7:45 a.m. he had gone to

M.L.A Flat No. 83.

40. D.W. 1 Vishundeo Prasad has stated in his

evidence that he met with appellant/Vijay Krishna on

22.05.2009 and stayed at his house till 12 o' clock on Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

23.05.2009.

41. D.W. 2 Raghuveer Prasad has stated in his

evidence that on 22.05.2009, he went to meet

appellant/Vijay Krishna at his residence in Kehan Lane, Delhi

where his son Chankya @ Guddu informed him that he had

gone to his village. On 23.05.2009, in the morning, he again

went to meet appellant/Vijay Krishna, but he was not

available. However, he met with his son Chankya @ Guddu

again on that day also.

42. D.W. 3 Arun Lal, in his evidence has stated

that he met appellant/Vijay Krishna at Athmalgola Market on

22.05.2009. He had also gone to his village on 23.5.2009

and stayed there till 8 to 11 a.m. He denied the suggestion of

the prosecution that appellant/Vijay Krishna was present in

MLA Flat No. 83 on 23.05.2009.

43. D.W. 4, Ram Kewal Singh has stated in his

evidence that on the occasion of completing 25 th years of

married life, he had organized a puja on 22.05.2009 and

dinner was also served to the guests. The progrmme Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

continued till 23.05.2009. During this period,

appellant/Umesh Prasad accompanied him.

44. Learned counsel for the informant as well as

learned A.P.P appearing on behalf of the State have

submitted that prosecution has substantiated the charges

levelled against the accused persons on the basis of occular

and documentary evidence produced by it which are sufficient

for conviction of the accused persons/appellants.

45. The learned counsel appearing on behalf of the

appellants has submitted that there is no eye witness to the

occurrence. The prosecution has failed to prove any motive of

the murder. From the evidences of the informant and wife of

the deceased, it is apparent that there was cordial

relationship between the deceased and appellant/Vijay

Krishna. It is the case of the prosecution that on call from the

appellant/Vijay Krishna, the deceased went to meet him in

M.L.A Flat No. 83 with his driver Vivek Singh on 23.05.2009

but Vivek Singh (P.W. 8) in his evidence has completely

denied this fact that he had gone with the deceased to meet Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

appellant/Vijay Singh in the morning of 23.05.2009. The

Investigating Officer of this case viz. Ravindra Prasad Singh

(P.W. 20) in his evidence in para 85 has stated that except

Vivek Singh, none had stated that Satyendra Singh

(deceased) was seen getting down near M.L.A. Flat No.83 nor

any independent witness has stated that appellant/Vijay

Krishna and his bodyguard appellant/Umesh Prasad Singh

was seen in M.L.A. Flat No. 83 in the morning of

23.05.2009. Hence, the prosecution has failed to prove that

deceased had gone to meet appellant/Vijay Krishna in M.L.A

Flat No. 83 along with his driver Vivek Singh on the day of

occurrence.

46. The learned counsel for the appellants has

further submitted that it is the case of the prosecution that

deceased was accompanied by appellant/Vijay Krishna and his

bodyguard appellant/Umesh Prasad Singh to Jhula Niketan on

23.05.2009 in Flat No. D/2 where his son appellant/Chankya

@ Guddu used to reside and only appellant/Vijay Krishna and

his bodyguard came out and went away inside the vehicle Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

with driver Vivek Singh (P.W. 8) but the Security Guards of

the aforesaid apartment namely Dharmendra Kumar (P.W.

13) and Chunkeshwar Prasad (P.W. 14) have not

corroborated as such and they have been declared hostile. No

other independent witness has stated to have seen

appellant/Vijay Krishna, his bodyguard, appellant/Umesh

Prasad Singh and the deceased near Jhula Niketan. Hence,

the prosecution has also failed to prove that appellant/Vijay

Krishna went along with the deceased and his bodyguard to

Jhula Niketan in Flat No. D/2 but only above two appellants

came downstairs and went away with driver Vivek Singh

(P.W. 8).

47. The learned counsel for the appellants has also

submitted that the Investigating Officer (P.W. 20) vide para

16, 19 and 20 has deposed that Flat No. D/2 was searched

on 26.05.2009 and 27.05.2009 in presence of the Magistrate

and F.S.L. officials but no useful clue was found. In para 73,

this very witness has stated that key of Flat No. D/2 was

under his possession from 26.05.2009. Hence, it cannot be Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

denied from the possibility that he has planted the evidence

against the appellants and kept blood stained materials in Flat

No. D/2. It is further submitted that as per prosecution case,

on 31.05.2009, a piece of cloth with blood, blood stained

bucket and a white shirt was found in Flat No. D/2 which

were taken by the experts as sample of blood but the

prosecution has not examined the experts nor evidences were

sealed or signature of the witnesses was taken on it. The

Investigating Officer has admitted that he had kept the

exhibits in the Malkhana but the number of Malkhana in

respect of the seized exhibit has not been mentioned. The

prosecution has also failed to prove that the blood found in

Flat No. D/2 was that of the deceased.

48. It is submitted that on the point of criminal

conspiracy, the prosecution has examined Rajeev Kumar

Singh as P.W. 11 who has stated in his evidence that 4-5

days before the occurrence, he had gone to Jhula Niketan

along with the appellant/Vijay Krishna where they made a

conspiracy to kill Satyendra Singh (deceased) and throw his Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

dead body in the river. This witness was also a witness to the

seizure list prepared on 03.06.2009 in Jhula Niketan but he

did not say anything to the police or any family members of

the deceased though he claims that he was driver of the

deceased. The police has recorded the statement of this

witness after six months of the occurrence. Hence, the case

of the prosecution that under criminal conspiracy, Satyendra

Singh(deceased) has been killed, does not appear to be

convincing.

49. The learned counsel appearing on behalf of the

appellants has submitted that P.Ws. 1, 2, 3, 4, 5, 11, 12, 15,

16, 17 and 23 are either brother, son, daughter, wife, niece

of the deceased or relatives of the deceased, hence the

possibility of giving false deposition by them cannot be

denied. The statement recorded under Section 164 Cr.P.C is

not a substantive piece of evidence. Hence, the statements

given under Section 164 Cr.P.C by P.W.7, Popindra Prabhat,

P.W. 8 Vivek Singh, P.W. 13, Dharmendra Kumar and P.W.

14, Chunkeshwar Prasad have no evidentiary value. It is the Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

case of the prosecution that after killing the deceased, the

dead body was locked in a trunk and thrown away in the river

but the dead body of the deceased was recovered in the river

Ganga without it being covered with any trunk.

50. Learned counsel for the appellants has submitted

that the Trial Court ought to have appreciated the fact that

there was no chain of circumstantial evidence in the

prosecution case and there are various discrepancies inherent

in it. Hence, benefits of doubt must be given to the appellants

while setting aside the judgment and order passed by the

Trial Court.

51. In this case, the death of the deceased was not

accidental but homicidal. From the evidence of the Doctor

(P.W. 18), it appears that deceased died due to gunshot

injuries.

52. It is the fact that in this case, there is no direct

evidence to prove the crime. The whole prosecution case is

based on circumstances and in case of circumstantial

evidence, the motive is required to be proved in respect of Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

commission of murder of the deceased.

53. We have heard learned counsel for the

respective parties at length. With their able assistance, we

have also examined the relevant records, the judgments

rendered by the Trial Court and the reported judgments cited

by the parties during arguments.

54. The prosecution case hinges on circumstantial

evidence. The following circumstances have been pressed into

service by the prosecution; (i) last seen in the company of

appellant/Vijay Krishna (ii) motive (iii) murder of the

deceased in the flat owned by appellant/Vijay Krishna where

his son appellant/Chanakya @ Guddu used to reside along

with his servant appellant/Gagan Kumar and disposal of the

dead body by throwing into the current of Gaighat in locked

box (iv) the recovery of the dead body and its identification

(v) the discovery of location, on the basis of disclosure made

by the appellants where the dead body was thrown in current

of river Ganga.

55. The prosecution case is based on this fact that Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

on the day of occurrence, Vivek Singh (P.W. 8) had

accompanied the deceased to M.L.A Flat No. 83 by Sumo

Victa car to meet appellant/Vijay Krishna and from there, the

deceased went to Jhula Niketan along with appellant/Vijay

Krishna and his bodyguard appellant/Umesh Prasad Singh.

They went upstairs in the apartment where

appellant/Chanakya @ Guddu used to reside but after some

time only appellant/Vijay Krishna and his bodyguard

appellant/Umesh Prasad Singh came down. Dharmendra

Kumar (P.W. 13) and Chunkeshwar Prasad (P.W. 14), the

Security Guards of the apartment have also corroborated the

fact that they saw appellant/Vijay Krishna and his bodyguard

appellant/Umesh Prasad coming down from the apartment

and went away from there. P.W.s 1, 2 and 17 have also

testified the same facts in their evidence. However, Vivek

Singh (P.W. 8) who was the driver of the deceased has

admitted in his evidence that in the morning of 23.05.2009,

he had not gone with any person to anywhere. He had

completely retracted from the statement made before learned Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

Magistrate under Section 164 of Cr.P.C. It would be worthy

to mention here that according to the prosecution, P.W. 8

was the eye witness of this fact that the deceased had gone

with him from his residence on 23.05.2009 in the morning to

meet the appellants. All other witnesses are hearsay in

respect of last seen who deposed accordingly as conveyed by

Vivek Singh (P.W. 8). From the entire facts discussed above,

this inference is taken by us that no one had seen the

deceased along with the appellants either in M.L.A Flat No.

83 or in Jhula Niketan.

56. The next contention raised on behalf of the

appellants is that the statements made under Sections 164

Cr.P.C by P.Ws. 8, 13, 14 in respect of last seen of the

deceased with the appellants does not have any relevance

since they all have retracted from the statement recorded

under Section 164 Cr.P.C. The Hon'ble Apex Court in the

case of R. Shaji versus State of Kerala(2003)14 SCC

266 has clearly observed that the statement recorded under

Section 164Cr.P.C cannot be treated as substantive evidence. Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

Paragraphs 26, 27 and 28 of the judgment reads as under:-

"26. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 Cr.P.C can be used only for the purpose of contradiction and statements under Section 164 Cr.P.C can be used for both corroboration and contradiction. In a case where the Magistrate has to perform the duty of recording a statement under Section 164 Cr.P.C, he is under an obligation to elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for which he has been brought, and what he must disclose in his statements under Section 164 Cr.P.C. Hence, the Magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case.

27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement; and secondly, to ride over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in court Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

should be discarded, is not at all warranted. (Vide Jogendra Nahak v. State of Orissa and CCE v. Duncan Agro Inustries Ltd.)

28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 Cr.P.C, such statements cannot be treated as substantive evidence."

57. The Hon'ble Apex Court has also observed in

the case of Somasundaram @ Somu versus State AIR

2020 SC 3327 which is quoted hereinabove.

"68. Section 164 of the Cr.P.C enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence ? What is the purpose of recording the statement or confession under Section 164?. What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness.

These questions are not res integra. Ordinarily, the prosecution which is conducted through the Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

State and the police machinery would have custody of the person. Though, Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time.

69. As to the importance of the evidence of the statement recorded under Section 164 and as to whether it constitutes substantial evidence, we may only to advert to the following judgment, i.e. , in George and others v. State of Kerala and another.

"In making the above and similar comments the trial Court again ignored a fundamental rule of criminal jurisprudence under S. 164 Cr.P.C, cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him."

71. Thus, in a case where a witness, in his statement under Section 164 of the Cr.P.C makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement under Section 164 is not substantial Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

evidence then what would be the position?. The substantive evidence is the evidence rendered in the Court. Should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of statement under Section 164."

58. Section 27 of the Indian Evidence Act also reads

as under:-

"27. How much of information received from accused may be proved.-Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

59. We are of the opinion that the statements

recorded under Section 164 Cr.P.C have been falsified by the

witnesses. Hence, these statements have no relevance in the

eyes of law.

60. The other contention raised on behalf of the

appellants is that the case is based on circumstantial

evidence. To prove the case based on circumstantial Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

evidence, the motive behind the occurrence is necessary. In

this case, appellant/Vijay Krishna had good relationship with

the deceased and his family and this fact has also been

corroborated by the wife (P.W. 17) and brother (P.W.1) of

the deceased. Hence, there is no reason to believe that the

appellants, in conspiracy with each other have committed the

murder of Satyendra Singh (deceased) without any plausible

reason.

61. The place of occurrence of committing murder of

Satyendra Singh (deceased) is said to be Flat No. D/2

situated in Jhula Apartment on the basis of information

gathered by the witnesses namely PW. 13 and P.W. 14. They

were Security Guards in the said apartment. The prosecution

has tried to prove that these witnesses deposed in their

statements recorded under Section 164 Cr.P.C that on

23.05.2009, Satyendra Singh (deceased) came along with

appellant/Vijay Singh and his bodyguard appellant/Umesh

Prasad Singh in the apartment and went in Flat No. D/2 and

after some time, only appellants Satyendra Singh and Umesh Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

Prasad Singh came down from the flat and went away with

driver Vivek Singh (P.W. 8). However, these two witnesses

have not corroborated the evidence before the Trial Court at

the time of their evidence. They both have retracted from the

statement given under Section 164 Cr.P.C and they have

been declared hostile. So, the prosecution has failed to prove

that the deceased came along with appellants Vijay Krishna,

Umesh Prasad Singh and his driver Vivek Singh(P.W. 8) to

Jhula Niketan from M.L.A Flat No. 83. P.W. 7 Popindra

Prabhat @ Bunti who was also a resident of Jhula Niketan

and was living in Flat No. B/4 has deposed that on

23.05.2009, the Security Guards and some people of the

apartment told him that they have heard the sound of

gunshot firing which came from Flat No. D/2 in which

appellant/Chanakya @ Guddu was residing with his servant

appellant/Gagan Kumar. He came to know on 26.05.2009

about breaking of the lock of said flat by the police. He heard

that appellants Chanakya @ Guddu and Gagan Kumar are

residing in the apartment. He had not seen appellant/ Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

Chanakya @ Guddu to have shot fired at the deceased in Flat

No. D/2.

62. P.W. 11, Rajeev Kumar is driver of the deceased

who has deposed that 4-5 days before the occurrence, he

took away appellants Vijay Krishna and Umesh Prasad Singh

to Jhula Niketan in Flat No. D/2 where appellants Chanakya

@ Guddu and Gagan Kumar were present. He stepped back

in dining room. Appellant/Vijay Krishna whispered that he will

come with Satyendra Singh (deceased) and you all will kill

him and throw him into river Ganga, keeping the body locked

in a box. The evidence given by this witness is beyond

reasonable thought. He is a man of apathy. The life of a

person was in danger but he had adopted a lackadaisical view

to not inform to the concerned, his family members or the

Police about the conspiracy of commission of murder. Hence,

the evidence of this witness is not trustworthy and consistent

because he was well aware about this fact that appellants

may commit some wrong with Satyendra Singh (deceased)

and it was his ample responsibility to inform about this to the Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

deceased, his family members and the police so that they can

save the deceased's life but he did not do so. Therefore, his

evidence appears to be concocted and based on surmises to

implicate the appellants.

63. P.W. 20, the Investigating Officer of this case

has asserted that on 26.05.2009, Flat No. D/2 was opened

and some papers were seized and accordingly seizure list was

prepared. On that day, the F.S.L. officials were also present

in Flat No. D/2 but neither he nor the F.S.L. officials have

succeeded to find any clue or evidence relating to the

commission of murder of the deceased in that flat. On

27.05.2009, again in presence of the Magistrate viz. Shri

Surya Prakash Rai and the F.S.L team leading by Mr.

Ravindra Kumar Sinha, the lock of Flat No. D/2 was opened

and it was inspected scientifically to find any clue regarding

the occurrence but they could not succeed to find any clue.

He further deposed that on the basis of confessional

statement of appellant/Gagan Kumar, Flat No. D/2 was again

inspected by the F.S.L. officials and blood stained materials Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

were recovered and accordingly seizure list was prepared in

respect of the discovered materials/objects. On the basis of

confessional statements of appellants Gagan Kumar and

Umesh Prasad Singh, this witness went to river Ganga for

recovery of the dead body but the same was not recovered.

In para 73, this witness has deposed that the key of Flat No.

D/2 was in his possession from 26.05.2009. We find

substance in the submission of the appellants that there may

be a possibility of plantation of false evidence by the

Investigation Officer to implicate the appellants in this case.

64. The prosecution case is that during search and

seizure, the human blood was found from Flat No. D/2. The

blood samples of daughter of the deceased was also taken for

DNA test but the prosecution has failed to prove that the

blood stained seized from Flat No. D/2 is matching with the

blood of the deceased.

65. The learned Trial Court although accepted this

fact vide para 47 of its judgment that the materials contained

human blood was seized from Flat No. D/2 but the same was Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

not confirmed with the blood group of the deceased but

mistakenly relied upon the confessional statement of

appellant/Gagan Kumar made before the Police which is not

in consonance with the provision of Section 27 of the

Evidence Act.

66. The Hon'ble Apex Court further observed in Cr.

Appeal Nos. 1476-1477 of 2018(Venkatesh @ Chandra

@ Anr versus State Of Karnataka) that:-

"19. We must observe that we have repeatedly found a tendency on part of the Prosecuting Agency in getting the entire statement recorded rather than only that part of the statement which leads to the discovery of facts. In the process, a confession of an accused which is otherwise hit by the principles of Evidence Act finds its place on record. Such kind of statements may have a direct tendency to influence and prejudice the mind of the Court. This practice must immediately be stopped. In the present case, the Trial Court not only extracted the entire statements but also relied upon them."

67. The dead body of the deceased was recovered on Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

11.06.2009 from Dullighat under P.S. Khajekalan. After

proper identification and verification from the deceased family

members and wearing clothes, it was ascertained to be the

dead body of Satyendra Singh. The inquest report was

thereafter prepared. The case of the prosecution is that the

appellants Gagan Kumar and Umesh Prasad Singh in their

confessional statements have confessed that the dead body

was thrown in river Ganga in a locked trunk (box) but the

prosecution evidence shows that the dead body was not

recovered in a locked trunk. The prosecution has failed to

establish that under what circumstance, the dead body came

out of the locked box. It is the fact that identification of the

dead body was not challenged by the prosecution side.

68. In our considered view, this only circumstance

itself may not be sufficient to establish the guilt of the

accused. It was also submitted on behalf of the appellants

that the accused in their questioning under Sections 313

Cr.P.C have denied making of any such statement and

recovery of dead body at their behest. It would be pertinent Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

to mention here that charge under Section 364 I.P.C was

framed against the appellants but in absence of any evidence

in respect of abduction of the deceased, the appellants have

been acquitted by the Trial Court.

69. We do not find any force in the submission of the

prosecution that before and after the occurrence, the

appellants were engaged with each other by telephone call.

Their mobile phone tower location were in Patna, so chain of

circumstance is complete. From perusal of the materials

available on record, it is established that deceased and

appellants were residing in Patna at the time of occurrence

and they all have good relations with each other. Therefore, it

is natural that they have connected with mobile at Patna at

the time of occurrence. The connection between the culprit

and the victim may be taken into consideration when they are

strangers and unknown to each other.

70. We have gone through the entire evidence and

material statements under Section 164 Cr.P.C given by the

witnesses. We have no hesitation to say that the Trial Court Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

has wrongly upheld the guilt to the accused without any

reliable and circumstantial evidence. The Trial Court observed

that the prosecution has succeeded its case beyond

reasonable doubt and held the appellants guilt of the charges

levelled against them.

71. The Hon'ble Apex Court in Sharad

Birodhichand Sard versus State of Maharastra (1098)

4, SCC, 116, has postulated the cardinal principle regarding

the appreciation of circumstantial evidence by holding that

whenever the case is based on circumstantial evidence, the

following features are required to be complied with and

proved by cogent evidence.

(i) the circumstances for which the conclusion of guilt

is to be drawn must or should be and not merely may be fully

established.

(ii) the fact so established should be consistent only

with the hypothesis of the guilt of the accused, that is to say,

they should not be explainable, on any other hypothesis

except that the accused is guilty Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

(iii) the circumstances should be of a conclusive

nature and tendency

(iv) they should exclude every possible hypothesis

except the one to be proved and

(v) there must be a chain of evidence so complete as

not to leave any reasonable ground from the conclusion

consistent with the innocence of the accused and must show

that in all human probability, the act must have been done by

the accused.

72. The Hon'ble Apex Court in Kanhaiya lal versus

State of Rajestan reported in (2014) 4 SCC 715 has

been pleased to rule that the circumstances of last seen

together does not by itself necessarily lead to inference that it

was accused who committed crime. There must be something

more connection between accused and crime. It is further

held that where a case rests squarely on circumstantial

evidence, inference of guilt can be justified only when all

incriminating facts and circumstances are found to be

incompatible with innocence of accused or guilt of any other Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

person. Circumstances from which an inference as to guilt of

accused is drawn have to be proved beyond reasonable

doubt.

73. In the case of Navaneethakrishnan versus

State AIR 2018 SC 2027, the Hon'ble Apex Court has

observed that

"23. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must from a chain of events from which only irrestible conclusion about the guilt of the deceased can be safely drawn and no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

the guilt of the accused beyond all reasonable doubt. The Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. There is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions. The Court in mindful of caution by the settled principles of law and the decisions rendered by this Court that in a given case like this, where the prosecution rests on the circumstantial evidence, the prosecution must place and prove all the necessary circumstances, which would constitute a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence, which in the present case, the prosecution has failed to prove."

74. In the fact and circumstances of the case, we

find and hold that the prosecution has utterly and miserably

failed to substantiate the prosecution case and bringing home

the charge levelled against the appellants beyond all

reasonable doubts by adducing consistent, trustworthy and Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

reliable evidence.

75. Considering the entire evidence on record, we

find that it is not a case based on the theory of last seen

because P.W. 8, Vivek Singh who was the driver of the

deceased has flatly denied that on the fateful day, he had

gone with the deceased Satyendra Singh by driving the Sumo

Victa car to meet the appellant/Vijay Krishna. The

prosecution witnesses testified that the deceased went with

driver Vivek Singh by Sumo Victa Car but P.W. 8 does not

support the prosecution case. P.W.s 13 and 14 denied that

they had seen appellants Vijay Krishna, Umesh Prasad Singh

and deceased Satyendra Singh to enter into the Jhula

apartment and went to Flat No. D/2 where appellants

Chanakya @ Guddu and Gagan Kumar used to reside. They

also denied about hearing of any gunshot firing from this flat.

The materials/objects also do not support the prosecution

version. No one of the vicinity of the place of occurrence

supports the prosecution version. The evidence testified by

the P.W. 7 in respect of hearing of gunshot firing is based on Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

hearsay. The weapon used in the said crime has not been

recovered. The blood stained collected at the place of

occurrence also have not been matched with the blood of

deceased. We find that it is not a case suggesting that

circumstances in this case makes a complete chain leading to

the only conclusion that appellants have committed the

murder of the deceased. Hence, the appeals are fit to be

allowed.

76. In the result, all the appeals stand allowed.

77. The judgment of conviction dated 2nd of

December, 2013 and the order of sentence dated 4 th of

December, 2013 passed by the learned Additional District &

Sessions Judge, Xth, Patna in connection with Sessions Trial

Nos. 1007 of 2010, 1008 of 2010 and 1009 of 2010, arising

out of Shri Krishna Puri P.S. Case No. 110 of 2009 is

quashed and set aside.

78. The appellants are acquitted from all the

charges levelled against them and they are directed to be set

free forthwith.

Patna High Court CR. APP (DB) No.44 of 2014 dt.20-05-2022

79. Since the appellants namely Vijay Krishna (Cr.

Appeal (DB) No. 44 of 2014) and Umesh Prasad Singh @

Umesh Singh (Cr. Appeal (DB) No. 211 of 2014) are in jail,

they are directed to be released forthwith, if not wanted in

any other case.

80. Since the appellants Gagan Kumar (Cr. Appeal

(DB) No. 165 of 2014) and Chanakya @ Guddu (Cr. Appeal

(DB) No. 167 of 2014) are on bail, they are discharged from

the liabilities of their bail bonds.

(Sunil Kumar Panwar, J)

A.M. Badar, J.

(A. M. Badar, J)

Shageer/-

AFR/NAFR                AFR
CAV DATE                09/05/2022
Uploading Date          20/05/2020
Transmission Date       20/05/2020