Rajeev Kumar @ Golu @ Samit Kumar vs The State Of Bihar
2023 Latest Caselaw 3921 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.419 of 2019
   Arising Out of PS. Case No.-78 Year-2016 Thana- SAKURABAD District- Jehanabad
======================================================

Sonu Kumar @ Tutu Kumar, aged about 22 years, Son of Surendra Prasad, Resident of Village-Noawan @ Neama, Police Station-Shakurabad in the District of Jehanabad.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 568 of 2019 Arising Out of PS. Case No.-78 Year-2016 Thana- SAKURABAD District- Jehanabad ====================================================== Rajeev Kumar @ Golu @ Samit Kumar, aged about 27 years, male, Son of Shiv Shankar Sharma, Resident of Village-Nowama, P.S.-Sakurabad, District- Jehanabad.

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

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

(In CRIMINAL APPEAL (DB) No. 419 of 2019) For the Appellant/s : Mr. Sunil Kumar, Advocate For the State : Mr. Binod Bihari Singh, APP (In CRIMINAL APPEAL (DB) No. 568 of 2019) For the Appellant/s : Mr. Raghubir Chandrayan, Advocate For the State : Mr. Binod Bihari Singh, APP ====================================================== Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR) Date : 22-08-2023

Both the appeals have been taken up

together and are being disposed off by this common

judgment.

2. We have heard Mr. Sunil Kumar and Mr.

Raghubir Chandrayan for the two appellants

respectively. The State is represented by Mr. Binod

Bihari Singh, the learned APP.

3. Both the appellants have been convicted

under Sections 302, 364(A), 120(B) and 201 of the

I.P.C. vide judgment dated 08.03.2019 passed by the

learned 1st Addl. District & Sessions Judge-Cum-Special

Judge, Jehanabad in Sessions Trial Nos. 56 of 2017/11

of 2017, arising out of Shakurabad P.S. Case No. 78 of

2016 and by order dated 15.03.2019, they have been

sentenced to undergo R.I. for life, to pay a fine of Rs. Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

50,000/- each and in default of payment of fine, to

further undergo R.I. for one year for the offences under

Sections 302 and 120(B) of the I.P.C.; R.I. for life, to

pay a fine of Rs. 25,000/- each and in default of

payment of fine, to further suffer R.I. for one year for

the offence under Section 364(A) of the I.P.C. and R.I.

for three years, to pay a fine of Rs. 10,000/- each and

in default of payment of fine, to further undergo R.I. for

six months for the offence under Section 201 of the

I.P.C. All the sentences have been directed to run

concurrently.

4. The 11-year old boy of Ganauri Sao (PW-

1) is said to have been kidnapped, murdered and thrown

in the river which was in spate. The name of the

appellants was taken in the confession of one of the

accused persons, namely, Bhopali @ Shashi Ranjan, who

was found to be a juvenile at the time of the occurrence

and, hence, his and the case of another juvenile

accused, namely, Dhiraj Kumar @ Dhiraj Kishore was Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

sent to the Juvenile Justice Board for determination of

their guilt.

5. The other material relied upon by the Trial

Court for convicting and sentencing the appellants is the

CDRs of their respective telephone numbers, which were

used by them for making ransom call to PW-1 and

talking amongst themselves.

6. The afore-noted CDRs have been brought

on record as Ext.-7.

7. The Trial Court, therefore, found that

Bhopali @ Shashi Ranjan, a mate of the son of PW-1

called him for playing in the field. There, both the

appellants were present and out of an earlier hatched

conspiracy, killed him, called for ransom money from

PW-1 and, thereafter, disposed off the dead-body.

8. The dead-body of the deceased has not

been recovered.

9. Both the appellants claim to be innocent

and have urged that they have been proceeded against Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

and convicted only on the basis of the confession of a

juvenile accused.

10. Assuming but not admitting, it has been

argued on behalf of both the appellants, that the SIM

card from which the ransom call was come was used by

their telephone sets and that they had talked amongst

themselves, that by itself would not render them guilty

of any conspiracy, kidnapping and as a result of such

conspiracy, killing of the deceased.

11. Lastly, it has been submitted that the

deceased might have been drowned in the river by the

bank of which the village of the informant (PW-1) and

the deceased is situated and which river was in spate at

the time when the son of PW-1 was found to be missing.

12. Ganauri Sao (PW-1) had lodged a

written report on 24.08.2016, alleging that on

21.08.2016, his 11-year old son, namely, Om Prakash

Gupta had gone out of the house to play, but did not

return till 8 O'clock in the evening. PW-1 along with his Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

neighbour looked for him at all places and reported the

matter to the police on 22 nd of August, 2016. However,

no report was lodged and the Officer-in-Charge of the

police station was only orally informed about the son of

PW-1 having gone missing on 23.08.2016, i.e., after

two days.

13. One Shambhu Kumar @ Shambhu

Sharma, a neighbour of PW-1, has been examined as

PW-3. He had received a telephone call from a mobile

telephone bearing No. 8541095908. The caller had

asked afore-noted Shambhu Kumar to make him talk to

PW-1. Shambhu Kumar came with his mobile telephone

five minutes later and, thereafter, tried several times to

call back on the same number, but the number was

found to be switched off. This made PW-1 really wary of

the situation and he suspected that his son has been

kidnapped.

14. On the basis of the afore-noted written

report, initially a case was instituted vide Shakurabad Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

P.S. Case No. 78 of 2016, dated 24.08.2016, for the

offence under Section 365 of the I.P.C. against

unknown. Shortly, thereafter, telephone calls were

received by PW-1 and PW-3, seeking ransom money for

the release of the victim. This led to the arrest of one

Bhopali @ Shashi Ranjan, who confessed that the

deceased was brought near the river side on the asking

of appellant/Rajeev Kumar @ Golu @ Samit Kumar.

When the deceased was brought near the river side by

Bhopali @ Shashi Ranjan, he was taken in contact of the

appellants, who killed him and disposed off his dead-

body. Aforesaid Bhopali @ Shashi Ranjan was not

present when the deceased was killed, but was only told

a day later by one of the appellants that the deceased

has been killed and the dead-body has been thrown in

the river.

15. This was the basis for proceeding to

investigate the case against the appellants.

16. The statement of Bhopali @ Shashi Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

Ranjan, Shambhu Kumar (PW-3) and one of the friends

of one of the appellants, namely, Chandan Kumar @

Bittu were recorded under Section 164 Cr.P.C. All such

statements pointed towards the guilt of the appellants

and the two other juvenile accused persons.

17. The Trial Court has examined eight

witnesses on behalf of the prosecution and has convicted

and sentenced the appellants as afore-noted.

18. The father of the deceased (PW-1)

narrated the same story in his examination-in-chief, but

has also stated that he again received a telephone call

on his mobile telephone on 04.09.2016, asking for Rs.

25,00,000/- for securing the release of his son. This

was followed by another call on his mobile telephone by

mobile No. 9708612552. This was communicated by

him to the police. The police found out that the call

from the later number was made from a SIM card

belonging to one Kameshwar Singh. It was at that

instance that PW-1 claimed to have entertained the idea Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

that the appellants and two others had kidnapped his

son for ransom and had also killed him.

19. During the trial, PW-1 had also stated

that appellant/Rajeev Kumar @ Golu @ Samit Kumar

had demanded Rs. 25,00,000/- as rangdari out of the

proceeds of the sale of his land, if such land would have

been sold.

20. This, therefore, in our estimation, makes

out a new case of the prosecution against the appellants.

21. This victim and Bhopali @ Shashi Ranjan

were seen by one Nakal Pandit @ Ramesh Pandit (PW-

2) on the day when the victim went missing. PW-1 had

actually asked him if he had seen his son, to which he

replied in affirmative. It was only later that he learnt

that the victim was kidnapped and, perhaps, killed.

22. Shambhu Kumar (PW-3), who happens

to be a neighbour of PW-1, received a call for the first

time on 23.08.2016 from mobile telephone No.

7654023210, asking him to let the caller speak to PW- Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

1. When PW-3 came to the house of PW-1 and tried to

contact on the afore-noted mobile telephone number, it

was found to be switched off. PW-3 received another

telephone call on 27.08.2016, when the said telephone

call was picked-up by two of the associates of PW-1,

who assumed that in the background, a child had been

crying. However, no conversation took place between

any one of the parties on such telephone number.

23. The prosecution has also examined two

of the Judicial Officers, namely, Chandan Kumar and

Sandeep Patel as PW-4 and PW-5 respectively, who

have testified to the fact that Shambhu Kumar (PW-3)

and Chandan Kumar @ Bittu as also Bhopali @ Shashi

Ranjan had made their statements under Section 164

Cr.P.C.

24. Chandan Kumar @ Bittu, whose

statement was recorded by PW-4, divulged that

appellant/Rajeev Kumar @ Golu @ Samit Kumar, who is

his cousin, had come to stay with him in B.N. College Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

Hostel, Patna and stayed there for about 10 to 15 days.

During his stay in the hostel along with afore-noted

Chandan Kumar @ Bittu (not examined),

appellant/Rajeev Kumar @ Golu @ Samit Kumar

appeared to be very worried and when he was asked the

reason for his being so stressed out, no definite answer

was given by him except that he had lost on some

money. Thereafter, according to Chandan Kumar @

Bittu, appellant/Rajeev Kumar @ Golu @ Samit Kumar

exited from the hostel and became incommunicado.

Later, he again came back to the hostel and told

Chandan Kumar @ Bittu that his entire planning had

failed. A day after, the police arrested him from a room

of the hostel of B.N. College, Patna.

25. What, however, is important to note is

that all these persons who had got their statements

recorded under Section 164 Cr.P.C. were earlier called

to Shakurabad Police Station and were told by the

Officer-in-Charge that the deceased has been killed and, Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

perhaps, the appellants and two other juvenile accused

are the perpetrators of the crime. Thus, it appears that

164 statement appears to have been recorded on the

dictates of the investigating agency after a confession

was extracted from Bhopali @ Shashi Ranjan.

26. We have further found from the analysis

of the evidence on record that the I.O. of this case (PW-

6) obtained the CDR of mobile telephone No.

8541095908, the number from which, for the first time,

the call was made to PW-3, enabling the caller to

contact PW-1. From the CDR of the number referred to

above, it appeared that the SIM card was used by a

particular IMEI number of a telephone-set. The afore-

noted SIM card was used by another telephone-set with

another IMEI number. The two other SIM cards were

registered in the name of one Kameshwar and Rakhi

Singh respectively. Rakhi Singh was found to be a

Doctor in P.M.C.H., Patna, who had earlier made a

complaint about her mobile telephone having been stolen Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

from P.M.C.H. for which a case vide Pirbahore P.S.

(Patna) Case No. 172 of 2016 was registered.

27. Three telephone numbers were put on

the surveillance by PW-6, namely, 8541095908,

9708167403 and 8298701667 from which either PW-1

or PW-3 were called at different times, either asking for

payment for ransom money or for establishing contact

with any one of the relatives of the victim. From the

analysis of the CDRs of the afore-noted telephone

numbers, PW-6 claimed that different SIM cards were

used which were registered in the name of different

persons, one of which was registered in the name of one

Manir Ansari of Nawada. It was only after this that the

telephones along with the SIM cards of the appellants

were seized and on the analysis of the CDRs of all the

telephone numbers, it was found that the

appellant/Rajeev Kumar @ Golu @ Samit Kumar had

talked to Bhopali @ Shashi Ranjan and appellant/Sonu

Kumar @ Tutu Kumar a number of times on the day Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

when the victim went missing.

28. As it appears, this was the sole basis for

the I.O. to investigate the case and charge-sheet the

appellants as having conspired and killed the deceased.

29. From the possession of the

appellant/Rajeev Kumar @ Golu @ Samit Kumar, three

mobile sets were recovered, one of which was the said

mobile set from which the SIM card was used for making

a call for ransom.

30. The seizure-list of the mobile sets

recovered from the appellants was prepared by Sub-

Inspector/Chandan Kumar, which has been exhibited as

Ext.-6/1.

31. Ext.-6/2 reflects that some usable

articles were also recovered from the houses of the

appellants, which were not particularly be incriminating

in nature.

32. PW-6 has stated before the Trial Court

that after obtaining the CDRs from the technical cell with Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

the help of S.I./Deepak Kumar, the same were marked

as Exhibit-7, which was proved by him. The appellants

were initially not arrested, but, later, with the telephone

numbers talling after the CDRs of different telephones

were analyzed, they were taken into custody.

33. The mobile telephone sets so recovered

were produced before the Trial Court by S.I./Binod

Kumar-II (PW-7).

34. The prosecution has relied upon the

statement of Deepak Kumar (PW-8), a police official,

who was posted in the Confidential Section of the Office

of S.P., Jehanabad and also worked as District

Intelligence In-charge, to prove that the telephone

companies were requisitioned for the CDRs and that

those CDRs were obtained from computer generated

source. The call detail records have been marked as

Ext.-4, which was sought to be proved by PW-8.

35. Section 65-B of the Indian Evidence Act,

1872 provides for the procedure for admissibility of any Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

electronic records.

36. Section 65-B of the Indian Evidence Act,

1872 reads as follows:-

"65-B. Admissibility of electronic records.--(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub- section (1) in respect of a computer output shall be the following, namely:--

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether--

(a) by a combination of computers operating over that period; or Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

(2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub- section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,--

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

human intervention) by means of any appropriate equipment.

Explanation.--For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process."

37. In the present case, we do not find any

compliance of Section 65-B of the Indian Evidence Act

as has been explained in Anvar P.V. Vs. P.K. Basheer &

Ors.; 2014 (10) SCC 473 and Arjun Panditrao Khotkar

Vs. Kailash Kushanrao Gorantyal & Ors.; (2020) 7

SCC 1. There is no certificate on record as contemplated

under Section 65-B of the Indian Evidence Act, 1872.

This definitely makes the evidence with respect to the

CDRs, which are the sole basis for proving the case of

conspiracy as against the appellants, as inadmissible in

the eyes of law.

38. PW-8 could not have certified that the

CDRs of various telephones were obtained through the

telephone companies, which information was generated Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

in usual course.

39. Thus, we find the prosecution loosing out

on their case in proving the charge against the

appellants.

40. We say so for the reason that the basis

for coming to the conclusion that the appellants had

conspired with two other juvenile accused is the CDR

which, in the present case, is inadmissible piece of

evidence because of non-compliance of Section 65-B of

the Indian Evidence Act, 1872.

41. So far as killing is concerned, there is no

witness to the afore-noted act as also of disposing off

the dead-body. We have already noted that the dead-

body has not been recovered despite the efforts by the

police in that direction.

42. Bhopali @ Shashi Ranjan was a friend of

the son of PW-1. That they went out to play is not

something unusual. That the appellants had talked

amongst themselves and with aforesaid Bhopali @ Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

Shashi Ranjan for a number of times also is not an

evidence strong enough to conclusively hold that such

telephone calls amongst themselves were only for

hatching out a conspiracy and planning to get the

deceased somewhere near the river where he would be

killed and ransom money could be demanded.

43. The circumstances also are not so

complete so as to completely exclude the innocence of

the appellants, unless the evidence is of a conclusive

nature which would unerringly point towards the guilt of

the appellants and the appellants alone, to the exclusion

of any other.

44. In that view of the matter, we find that

the Trial Court has relied upon an inadmissible piece of

evidence and has also erred in believing the supposition

of the prosecution, which is only based on conjectures

and surmises.

45. For the reasons afore-noted, we find the

conviction of the appellants to be bad in the eyes of law. Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

46. Perforce, we set aside the judgment of

conviction dated 08.03.2019 and the consequent order

of sentence dated 15.03.2019 passed by the learned 1 st

Addl. District & Sessions Judge-Cum-Special Judge,

Jehanabad in Sessions Trial Nos. 56 of 2017/11 of

2017, arising out of Shakurabad P.S. Case No. 78 of

2016. The appellants are acquitted of the charges

levelled against them.

47. The appellant/Sonu Kumar @ Tutu

Kumar [Cr. Appeal (DB) No. 419 of 2019] and the

appellant/Rajeev Kumar @ Golu @ Samit Kumar [Cr.

Appeal (DB) No. 568 of 2019] are in custody. They

are directed to be set at liberty forthwith unless their

detention is required in any other case.

48. Both the appeals stand allowed.

49. Let a copy of this judgment be

dispatched to the Superintendent of the concerned Jail

forthwith for compliance and for the purposes of record.

50. The records of these appeals be Patna High Court CR. APP (DB) No.419 of 2019 dt.22-08-2023

returned to the Trial Court forthwith.

51. Interlocutory application/s, if any, also

stand disposed off accordingly.

                                                 (Ashutosh Kumar, J)


                                               (Alok Kumar Pandey, J)
Praveen-II/Amit
AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          24.08.2023
Transmission Date       24.08.2023