Patna High Court
Surendra Singh @ Surendra Kumar @ ... vs The State Of Bihar on 13 August, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.107 of 2016
Arising Out of PS. Case No.-95 Year-2014 Thana- DIGHA District- Patna
======================================================
SURENDRA SINGH @ SURENDRA KUMAR @ SURENDAR SINGH @
SURENDAR KUMAR, Son of Late Lallan Singh, Resident of village-
Baruna, Police Station - Narayanpur, District - Bhojpur.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 140 of 2016
Arising Out of PS. Case No.-95 Year-2014 Thana- DIGHA District- Patna
======================================================
1. Kameshwar Singh Son of Sri Kapil Manu Singh Resident of Village-
Bahadurpur Tola Paharpur, P.S.- Garhani, District- Bhojpur.
2. Upendra Singh, Son of Sri Ramanyan Singh Resident of Village- Lasadhi,
P.S.- Garahani, District- Bhojpur.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 326 of 2016
Arising Out of PS. Case No.-95 Year-2014 Thana- DIGHA District- Patna
======================================================
Binod Kumar @ Vinod Prasad Son of Jwala Prasad, resident of Village-
Lakhan Tola, Police Station- Bihta in the district of Patna.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 107 of 2016)
For the Appellant/s : None
For the Respondent/s : Mr. Abhimanyu Sharma, APP
For the Informant : Mr. Paras Nath, Adv.
(In CRIMINAL APPEAL (DB) No. 140 of 2016)
For the Appellant/s : Mr.Aaruni Singh
For the Respondent/s : Mr.Bipin Kumar, APP
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
2/26
For the Informant : Mr. Paras Nath, Adv.
(In CRIMINAL APPEAL (DB) No. 326 of 2016)
For the Appellant/s : Mr.Sunil Kumar, Adv.
For the Respondent/s : Mr.Abhimanyu Sharma, app
For the Informant : Mr. Paras Nath, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 13-08-2024
1. All the three appeals have been heard
together and are being disposed of by this common
judgment.
2. There was no appearance on behalf of the
appellant/Surendra Singh @ Surendra Kumar @
Surendar Singh @ Surendar Kumar in Cr. Appeal
(DB) No. 107 of 2016.
3. Mr. Sunil Kumar, the learned Advocate has
appeared for appellant/Binod Kumar @ Vinod Prasad
in Cr. Appeal (DB) No. 326 of 2016. Mr. Aruni
Singh, the learned Advocate has appeared for the
appellants/ Kameshwar Singh and Upendra Singh in
Cr. Appeal (DB) No. 140 of 2016.
4. At our request, both Mr. Sunil Kumar and Mr.
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
3/26
Aruni Singh have assisted us in the appeal of
appellant / Surendra Singh @ Surendra Kumar ( Cr.
Appeal (DB) No. 107 of 2016).
5. The State has been represented by Mr.
Abhimanyu Sharma and Mr. Bipin Kumar, the
learned Additional Public Prosecutors in all the three
appeals.
6. Mr. Paras Nath, the learned Advocate has
appeared on behalf of the informant in all the three
appeals.
7. By Judgment dated 08.12.2015 passed by the
learned Additional Sessions Judge-XI, Patna in
Sessions Trial No. 840 of 2014, all the four
appellants have been convicted under Sections
364A/34, 120B, 302 and 201 of the Indian Penal
Code and 27 of the Arms Act. By order dated
09.12.2015
, they have been sentenced to undergo
imprisonment for remainder of their lives under
Section 302 of the Indian Penal Code, to pay a fine
of Rs.30,000/- which would be given to the family of
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
the victim. For the offence under Section 201 of the
Indian Penal Code, the appellants have been
sentenced to undergo R.I. for three years, to pay a
fine of Rs.5000/- which amount shall also be given
to the aggrieved family. For the offence under
Section 120B and 364A/34 of the Indian Penal
Code, the appellants have been saddled with
imprisonment for life under each of the counts and
to pay a fine of Rs.25,000/- to the aggrieved family.
For the offence under Section 27 of the Arms Act,
each of the appellants have been sentenced to
undergo R.I. for four years. The sentences have
been ordered to run concurrently.
8. One Ved Prakash, a student of Intermediate at
B.S. College, Danapur is alleged to have been killed
at the hands of the appellants. The sister of the
deceased viz, Punam Devi (PW-3) had lodged a
typed written report addressed to the Officer-in-
charge of Digha Police Station on 01.05.2014
alleging that the appellants/ Surendra and Vinod
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
along with their friends had come to her house on
21.04.2014 and persuaded the deceased to go along
with them for him to meet the mother of Surendra.
Incidentally, the mother of Surendra is the own aunt
of the deceased. Permission was granted to the
deceased by his sister (PW-3) and her husband/Jai
Prakash Kumar (PW-2) who were assured that after
a couple of days, the deceased would be sent back
home. They left the house on 21.04.2014, in the
evening of which PW-3 had a telephonic talk with the
deceased. Appellant/ Surendra had also talked to
PW-3 and hada convinced her that she ought not to
worry as the deceased would be sent back home on
the truck of appellant/Vinod. Later, when the
deceased did not arrive home, PW-3 frantically called
the deceased as also Surendra but their telephones
were out of reach. After about 2 to 3 days i.e. on
25.04.2014, appellant / Surendra responded to the
telephone call and expressed his ignorance about the
deceased. He told PW-3 that the deceased had
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
already left for home along with appellant/Vinod.
Becoming suspicious, PW-3 informed her father, who
is also the father of the deceased, namely, Ashok
Kumar Singh (PW-1), an employee in a private firm
who came back from his place of work at Orrisa and
tried to find out his son. In this process, appellant
/Surendra was questioned intensively when he
expressed that perhaps the deceased could be
recovered, if rupees ten lakhs is arranged for, as the
victim has been kidnapped by appellant /Vinod. On
the family of the deceased becoming sanguine that
the appellants had kidnapped the victim, the written
report was lodged by the sister of the deceased on
01.05.2014.
9. Pursuant to the afore-noted written report, a
case vide Digha P.S. Case No. 95 of 2014 dated
01.05.2014 was registered for investigation under
Sections 364A/34 of the Indian Penal Code initially.
However, with the recovery of the dead body,
Sections 302 and 120B of the Indian Penal Code as
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
also Section 27 of the Arms Act were added in the
investigation.
10. It appears from the records that by around
04.05.2014, the Investigator got a lead about
Surendra and Vinod being present at some place.
Since a suspicion had already been raised on them
and they were in fact last seen with the deceased,
the Investigator/Mohan Prasad Singh (PW-4)
arrested both of them on 04.05.2014 and recorded
their confession. Pursuant to their confession, the
dead body of the deceased was recovered on
05.05.2014 at 6.30 A.M. An inquest was prepared,
whereafter the dead body was sent for postmortem
examination at about 8:00 A.M. on the same day.
The postmortem examination was conducted on
05.05.2014 at 4:20 pm.
11. The police submitted charge-sheet against the
appellants, relying solely on their confession and the
resultant discovery of dead body as also on the
suspicion raised by the family members of the
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
deceased.
12. At the trial, six witnesses were examined on
behalf of the prosecution which included the father
of the deceased (PW-1), Jai Prakash Kumar (PW2)/
(brother-in-law of the deceased), Punam Devi
(PW3)/(informant and sister of the deceased),
Mohan Prasad Singh and Akhilesh Kumar Singh
(PWs-4 and 5 respectively)/the Investigators and Dr.
Shiv Ranjan Kumar (PW6) who had conducted the
postmortem examination.
13. Few stark facts appear to be very misleading
which have not been carefully taken into account by
the learned Trial Court while recording the judgment
of conviction.
14. There is no arrest memo on record.
15. There is also no discovery panchnama.
16. The absence of these two documents on record
makes the arrest and their confession and the
discovery of the dead body to be absolutely doubtful.
17. We say so not only for the reason of the
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
Investigators having forgotten to bring those
documents on record but for other ancillary reasons
as well which have made us doubt the entire
prosecution case.
18. Even the postmortem examination report and
the opinion of the doctor (PW-6) do not appear to be
trustworthy so far as the identification of the dead
body and the cause of death is concerned. The other
factor which has made us suspicious about the entire
fabric of prosecution version is the relationship of the
parties and complete absence of any motive of the
appellants to kill the deceased. An element of motive
was introduced, though not directly, by the
prosecution but the same could not be proved.
19. We are conscious of the position of the law
that motive may not assume great importance in a
murder case as only the perpetrator of the crime can
explain about his motive but in a case of
circumstantial evidence, motive provides an
additional link in coming to a cogent conclusion about
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
the guilt of the suspects.
20. For the felicity of exposition of the case, we
would first deal with the admissibility of the
statements made by the appellants which has led to
the recovery of the so called dead body of the
deceased. But before that, we need to refer to
Section 27 of the Indian Evidence Act which provides
as to how much information received from an
accused could be proved. Breaking the section into
intelligible parts, we find that any fact which is
deposed to as discovered in consequence of
information received from a person accused of any
offence, in the custody of a police officer; only so
much of such information whether confessional or
not, as relates distinctly to the fact thereby
discovered, could be proved.
21. The conditions necessary for the applicability of
Section 27 of the Evidence Act can thus be broadly
listed as;
(i) discovery of fact in consequence of an
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
information received from the accused;
(ii) discovery of such fact to be deposed to;
(iii) the accused must be in police custody
when he gave information;
(iv) and so much of information as relates
distinctly to the facts thereby discovery is
admissible. (Mohd. Inayatullah vs. State
of Maharashtra (1976) 1 SCC 828)
22. Two conditions for application of the Section is
that (i) the information must be such as has caused
discovery of the fact; (ii) and information must relate
distinctly to the fact discovered
23. In the case at hand, as noted above, there is
no arrest memo on record. Assuming the assertion of
the police to be correct that appellants/Vinod and
Surendra whose confessions led to the recovery were
arrested, it was most important for the Investigator
to have prepared the dead body and challan or the
discovery panchnama.
24. No independent persons certifying the recovery
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
of the dead body on the confession of the afore-
noted two appellants has been examined at the Trial.
25. The assertions of the Investigators is that on
the confession by the appellants, especially Vinod
and Surendra, a police team was constituted and
both the appellants were taken, in the police custody
to the place indicated by them from where the dead
body was recovered. There was no dearth of
independent persons or member of the police party
apart from the Investigators to aid the prosecution in
proving recovery. It is of utmost importance that
discovery panchanama be proved.
26. The reason why we are not ready or rather
reluctant to accept the evidence of discovery is that
the Investigating Officer in his oral evidence has not
said anything which would prove the contents of the
discovery panchnama. In fact, no panchnama is on
record. The second reason for us to discard the
evidence is that even if the entire oral evidence of
Investigating Officers is accepted as it is, what is
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
lacking is the authorship of concealment. It is also to
be noted that the discovery is from an open space.
The discovered body was found to be absolutely
mutilated with brain liquefied and sutures of brain
not found to be fused. It was difficult to identify a
dead body with such decomposition. Curiously, the
Investigators found two wounds of gunshot which
were later interpreted to be the wounds of entry and
exit, but about which the Doctor conducting
postmortem examination was absolutely uncertain of.
27. There is no evidence on record about the
identification of the dead body to be that of the Ved
Prakash, the deceased of this case. Who had
identified and on what basis is the question which
makes us very wary of accepting this evidence.
28. The evidence of discovery is further shrouded
in suspicion for the efforts of the Investigators to
locate for the weapon of offence. Somehow or the
other, it was found by the Investigators that the
deceased had died of gunshot and, therefore, the
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
necessity of finding the weapon of assault especially
when the discovery was made on the basis of
confession of the appellants. Pursuant to the
confession of appellant / Vinod, his house was
searched and two weapons wrapped in a plastic
sheet were recovered.
29. We have no idea whether those weapons were
sent to the ballistic and forensic experts for coming
to the conclusion that either of the weapons
recovered was used in the offence. Incidentally, the
Doctor has opined that there was no bullet found
stuck in the dead body because the soft tissues had
completely decomposed. The skin also had peeled off
at many places.
30. The recovery of the fire arm weapons therefore
appears to be an overdrive of the Investigators in an
attempt to make the prosecution case succeed and to
give an impression that the dead body as also the
weapon of assault have been recovered on the basis
of confession of appellants.
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
31. These aspects, in our estimation, renders the
entire evidence put forth by the prosecution to
smithereens and not worthy of any reliance.
32. In this context, we find it to be more
appropriate to discuss the evidence of the Doctor
(PW6). The doctor has observed in the postmortem
report that the soft tissues and hairs were completely
peeled off from most part of the skull. The sutures of
the same were not fused. Most of the molars had
protruded out. The soft tissues of the neck was
decomposed and almost absent. There was a ligature
around the neck, which was removed by cutting it.
The same was handed over to the I.O. The trachea
was decomposed and the cartileges were separated.
The mucosa of the trachea was absent.
33. In this mutilated and decomposed body, the
doctor had found penetrating wound of the 3'
diameter with margin which was blakened at the
right side of the chest just below the maxilla and
another penetrating would on the front of the right
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
side of the chest just below the nipple. Both the
wounds communicated to the chest cavity. Heart and
both lungs were found missing from the cavity.
34. We are at a loss to understand as to how, with
this decomposed body on the postmortem table, the
doctor had found communicating wounds of entry
and exit. We repeat here that no cartridge was found
stuck in the body. Even the ribs were found to be
detached. The abdominal cavity was devoid of any
soft tissues and, therefore, even the viscera could
not be preserved. The second lumber vertebra was
found to be fractured at the right side. The soft
tissues of the limb were loosely attached to their
ends.
35. The Doctor has but came to the opinion that
the death may have been caused because of fire arm
injury on the chest and the abdomen which may
have taken place five to seven days before the
holding of the postmortem examination.
36. We are surprised at such precision in
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
observation in such a decomposed body. We have
real doubts whether there was anything left in the
body to be identified by even the close relatives as
the dead body of the deceased of this case.
37. Even more interesting than the observation
made in the postmortem report, is his response in
the cross-examination. On a specific query, he went
on a defensive and stated before the Court that he
had not formed any definite opinion about the fire
arm injury and for that reason, he had not given the
measurement of the wound. Those injuries which
were observed by him to be the gunshot wounds,
could have been caused by sharp pointed weapon as
well. In order to be on the safer side, he has further
disclosed that while he was looking at the
postmortem report in Court, there was no inquest
report attached to it.
38. There is a reason for such question having
been asked to him by the defense. The inquest about
which we shall comment later, disclosed the opinion
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
of the Investigator that the death perhaps was
because of gunshot wound. He could not speak about
cause of death or the time of death conclusively,
though in the postmortem report, he has assessed it
to be about six to seven days before the postmortem
examination. It could be more.
39. No trust can be put on such a report especially
for saddling the appellants with such a grave crime
of killing of a young boy without any motive or
purpose.
40. We have already noted that there is no
discovery challan of the dead body; therefore, it is
difficult for us to say with certainty that the discovery
was made pursuant to the confession. Be that as it
may, we have found the challan of the dead body
used when the same is sent for postmortem
examination. This is dated 05.05.2014 and the time
of dispatch is shown to be 8.A.M. The other details
are absolutely missing. Somewhat before that, the
inquest was prepared at the site of discovery in
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
which Investigator has clearly stated that the dead
body was totally mutilated and it appeared that the
deceased had been killed by gunshot and the dead
body buried under sand for screening the offence.
41. Perhaps this was the reason why the Doctor
unwittingly spoke about two communicating gunshot
wounds.
42. The only person who appears to have identified
the dead body is the father, namely, Ashok Kumar
Singh (PW1), who claims to have identified him with
the size of the foot fingers and a pair of torn jeans.
Had there been a discovery Panchnama on record,
we would have given some credence to his version,
he being the father, believing that there was a
discovery of wearing apparel also along with the
dead body.
43. We are really unhappy to note that without
there being any reference of a Gamcha, referred to
as ligature in the inquest or in the discovery challan
which is non-existent, the doctor found that ligature
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
to be tied around the neck of the deceased which
was allegedly cut and given to the I.O. If that were
true then why was that not sent for forensic
examination ?
44. This is not the ideal synergy between the
Investigator and the Doctor in a criminal case. If
either of them were speaking the truth, the evidence
would have been worthwhile accepting and believing.
45. With this bleak evidence then, we have
analyzed the evidence of the relatives of the
deceased, namely, PWs 1, 2 and 3 who have very
vaguely referred to a motive for killing the deceased.
46. The motive suggested is so bleak that it is
difficult to even spell it out. The deceased had
another elder brother, who had married somebody
against the wishes of his family. That marriage had
the approval of appellants/Kameshwar and Upendra,
leading to a strained relationship between them and
Ashok (PW1).
47. However, at the Trial, all the witnesses have
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
spoken of good relations between the families. Had it
not been the case, Surendra would not have come to
the home of PW3 and insisted for the deceased to
visit his home to meet his mother, who is the aunt of
the deceased.
48. If it were a part of any conspiracy, the
prosecution was expected to pitch-in evidence of
such conspiracy which would have been admissible
under Section 10 of the Evidence Act.
49. Notwithstanding the so called seizure of several
of telephones of the appellants and CDRs of the
afore-noted telephones having been procured, there
was not attempt of the prosecution to link it to any
pre-concert of the appellants. Merely because the
telephone of appellant /Surendra was found to be
out of range for two to three days, suspecting his
conduct, admissible under Section 8 of the Evidence
Act, is not justified.
50. At one place, PW3 had conceded that even
appellant/Surendra made efforts to search for the
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
deceased till the time his dead body had not been
recovered.
51. Ashok (PW1) did not ever advert to strained
relationship with the appellants.
52. What could have then been the reason for
killing the deceased or of the prosecution for framing
the appellants in this false case.
53. Was it suspicion alone. We do not think so.
54. The elder brother of the deceased had married
against the wishes of the family but evidence on
record indicates that he resided with his father
/Ashok (PW1) at Orissa. He was not to be heard of
in the entire process of investigation and search. The
insinuation against him was about his desire to sell-
off the family property and settle in Delhi.
55. Was his father also an accomplice?
56. These could be the myriad thoughts coming in
the mind of a reader of the records of this case.
57. In any view of the matter, if it were a case of
circumstantial evidence, then also, the prosecution
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
was required to muster the necessary requirements
for conviction in such cases.
58. A three judge Bench of the Supreme Court in
Sharad Birdhichand Sarda vs. State of
Maharashtra [(1984) 4 SCC 116] endorsed the
most fundamental and basic decision of the Supreme
Court in Hanumant vs. State of M.P. (AIR 1952
SC 343) which was followed in large number of later
decisions upto date, to name a few (I) Tufail @
Simmi vs. State of U.P. [(1969) 3 SCC 198];
and (II). Ram Gopal vs. State of Maharashtra
[(1972) 4 SCC 625]
59. The primary principle is that the circumstances
from which the conclusion of guilt is to be drawn
should be fully established. The Supreme Court very
pithily differentiated between "must" and "may be".
It was explained that it was not only grammatical but
a legal distinction between "may be proved" and
"must be proved". Before a court can convict a
person, the distance between "may be" and "must
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
be" is required to be blurred to avoid any vague
conjectures and come to a sure conclusion.
60. The five golden principles, namely, (I) that the
facts should be conclusively established.; (II) the
facts so established should be consistent only with
the hypothesis of the guilt to the accused, i.e. to say
they should not be explainable on any other
hypothesis except that the accused is guilty; II) 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 for 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.
61. We say so with sure conclusion that the
prosecution in the present case, has not been able to
muster these requirements necessary for conviction.
62. To tie the strings together:-
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
(I) There is an inordinate delay in lodging
the F.I.R.
(II) The appellants had no motive to kill the
deceased.
(III) The identification of the dead body as
that of the deceased is absolutely doubtful.
(IV) The recovery of the dead body pursuant
to the confession of two of the appellants having
become doubtful and the crevices and crannies
having been left wide open, the prosecution has
failed miserably to bring home the charges
against the appellants.
63. We have no option but to set aside the
judgment and order of conviction and sentence and
set the appellants at liberty forthwith.
64. All the appeals are allowed.
65. The interlocutory application/s, if any, also
stands disposed of.
66. The appellant / Surendra Singh @ Surendra
Kumar @ Surendar Singh @ Surendar Kumar in Cr.
Patna High Court CR. APP (DB) No.107 of 2016 dt.13-08-2024
Appeal (DB) No. 107/2016 is in jail. He is directed
to be released forthwith unless his detention is
required in connection with any other case.
67. The appellants/ Kameshwar Singh and Upendra
Singh in Cr. Appeal (DB) No. 140 of 2016 and
appellant /Binod Kumar @ Vinod Prasad in Cr.
Appeal (DB) No. 326/2016 are on bail. They are
discharged from the liabilities of their bail bonds.
68. Let a copy of this judgment be communicated
to the Superintendent of concerned jail for record
and compliance.
69. The records of these appeals be also returned
to the concerned Trial Court forthwith.
(Ashutosh Kumar, J)
( Jitendra Kumar, J)
sunilkumar/-
Ravishankar
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 19.08.2024
Transmission Date 19.08.2024
