Chhotu @ Mohammad Ahsan Ansari vs State Of Chhattisgarh

Sanjay K. Agrawal, J

Since the aforesaid criminal appeals and criminal revision have been filed against the impugned judgment dated 4.3.2014 passed by the First Additional Sessions Judge, Surguja (Ambikapur) in Sessions Trial No.115/2011, they were clubbed & heard together and being disposed of by this common judgment.

Appellant-Chhotu @ Mohammad Ahsan (A1) and Appellant-Rasid Mansuri (A4) have preferred Criminal Appeal No.466/2014, appellant-Pawan Gupta (A2) has preferred Criminal Appeal Nos.273/2014, appellant-Pradeep Gupta (A3) has preferred Criminal Appeal No.279/2014, appellant-Ritesh Gupta (A6) has preferred Criminal Appeal No.867/2014 and appellant-Jitendra Gupta (A7) has preferred Criminal Appeal No.500/2014 under Section 374(2) of the CrPC questioning the impugned judgment dated 4.3.2014 passed by the First Additional Sessions Judge, Surguja (Ambikapur) in Sessions Trial No.115/2011, by which they have been convicted and sentenced as under:

Offence

Sentence

U/s 364A/120B IPC

Rigorous imprisonment for life and to pay a fine of Rs. 5000/-

U/s 386/120B IPC

Rigorous imprisonment for 10 years and to pay a fine of Rs. 5000/-.

U/s 302/120B IPC

Rigorous imprisonment for life and to pay a fine of Rs. 5000/-.

U/s 201/120B IPC

Rigorous imprisonment for 3 years and fine of Rs. 5000/-.

In default of total payment of fine of Rs. 20,000/-, to further undergo rigorous imprisonment for 1 year to each of the appellants.

Appellant-Prafful Mehto (A8) has preferred Criminal Appeal No.294/2014 questioning the impugned judgment dated 4.3.2014 passed by the First Additional Sessions Judge, Surguja (Ambikapur) in Sessions Trial No.115/2011, by which he has been convicted for offence under Section 412 of the IPC and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.5000/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months.

Case of the prosecution, in nutshell, is that during 14.11.2020 to 22.11.2010 the appellants conspired together along with one absconded co-accused Manoj Tiwari and in furtherance of their conspiracy, they abducted 10 years school going boy namely Ritik Tikkas from his lawful guardianship and demanded ransom of Rs. 10 lakhs by mobile phone and took ransom money of Rs. 5 lakhs & thereafter strangulated minor Ritik and in order to screen themselves from offence, they destroyed the evidence and thrown dead body into pond and thereby committed the above-stated offences except appellant-Prafull Mehto (A8). Case of the prosecution against appellant-Prafull Mehto (A8) is that during 14.11.2020 to 22.11.2010, he obtained Rs. 2,90,000/- being stolen property knowing fully well that the said amount has been obtained from extortion. It is further case of the prosecution that during 14.11.2020 to 22.11.2010 accused-Mohammad Harun Rashid Ansari (A5) had obtained Rs. 12,000/- from accused Jitendra Gupta (A7) knowing fully well that it is extortion amount and thereby committed the offence. It is further case of the prosecution that on 15.11.2010 at about 7.15 a.m. one Ritik Tikkas S/o Ratnakar Tikkas (PW-2) and Lata Tikkas (PW-1) went to his school namely, Carmel School, Ambikapur and on the same day at about 3.58 p.m. when Lata Tikkas (PW-1) was in her office performing her official duties, she received a mobile call in her mobile number 9826186146 from an unknown number ended with “---------527” and the caller has threatened her that he has kidnapped her minor son Ritik and if Rs. 10 lakhs as ransom is not given to them, then they will kill her son (Ritik). She immediately informed the incident to her husband Ratnakar Tikkas (PW-2) and both along with one Rafique Ali (PW-3) informed the incident to the Superintendent of Police, Ambikapur and lodged the FIR before Police Station City Kotwali, Ambikapur as Crime No.759/2010 vide Ex.P-1. On the same day i.e. 15.11.2010 at about 8.30 to 9 p.m., again Lata Tikkas (PW-1) received call in her mobile number 9826186146 from an unknown number ended with “--------796” and caller has again demanded money as ransom against release of abducted boy Ritik Tikkas. The family discussed the issue together and said to the kidnappers that they are able to give only Rs.5,00,000/- and not more than that, then the kidnappers locked the deal.

It is further case of the prosecution that on 16.11.2010 at about 8.30 to 10 a.m. again ransom call has been received by Lata Tikkas (PW-1) and in order to arrange the amount, Ratnakar Tikkas (PW-2) and Rafique Ali (PW-3) reached to the State Bank of India, Main Branch, Ambikapur, Distirct Surguja and brought notice to the Manager of the Bank namely Kamlesh Dubey (PW-7) and requested him to provide the currency of particular serial numbers in order to enable them to caught-hold of the offenders. Kamlesh Dubey (PW-7), Manager of the Bank, accepted the request of Ratnakar Tikkas (PW-2) and recorded the serial numbers of currency, which were withdrawn from Saving Account of Ratnakar Tikkas to the tune of Rs. 4,00,000/-. The description of the currency details prepared by Kamlesh Dubey (PW-7) is Ex.P-6 and account statement of Ratnakar Tikkas is Ex.P-8. Remaining Rs. 1,00,000/- was arranged by Ratnakar Tikkas (PW-2) from his friends in order to complete the ransom amount to the tune of Rs. 5 lakhs. On 16.11.2010 at about 4 p.m. kidnappers called to Lata Tikkas (PW-1) and asked her to come with ransom money in village Silfili and assured that they will safely release Ritik Tikkas in the morning of 17.11.2010. Believing the statement of the kidnappers, Ratnakar Tikkas (PW-2) along with one Shailesh Kumar Singh (PW-6) proceeded towards village Silfili and dropped ransom money near Chhat Ghat and thereafter Ratnakar Tikkas returned back to his home on the hope that soon his son will be back next day morning as promised. On 17.11.2010 Ritik Tikkas did not come back to the home as promised by the kidnappers and the kidnappers did not call either Lata Tikkas (PW-1) or Ratnakar Tikkas (PW-2) though they waited throughout the day on the hope that their son will be back, but unfortunately Ritik Tikkas did not come back.

On 18.11.2010 information was given to the police that Ritik has not returned back, which the police started investigation and suspicion has been raised by Tikkas family over accused Chhotu @ Mohd. Ahsan Ansari (A1), who was previously working as driver of their private vehicle. On 20.11.2020 the police apprehended accused Chhotu @ Mohd. Ahsan Ansari (A1) and then he narrated that he along with Pawan Gupta (A2), Pradeep Gupta (A3), Rashid Mansuri (A4), Mohd. Harul Rashid Ansari (A5), Ritesh Gupta (A6), Jitendra Gupta (A7), Prafull Mehto (A8) and absconded accused Manoj Tiwari hatched criminal conspiracy to kidnap Ritik Tikkas for ransom. On the basis of which, the police has arrested other accused persons except one absconder Manoj Tiwari. Pursuant to memorandum statements of the appellants herein under Section 27 of the Evidence Act, seizure has been made from each of the appellants in presence of independent witnesses, which states as under:-

Accused Accused Memoran- Seizure/ Articles Witnesses

No. dum/date of Page No.

arrest/Page

No.

A1 Chhotu Ex.P-36, Ex.P-37 Currency Nitin Gupta (PW-

@ Mohd. 20.11.2010 notes 19), Mohd. Hasib

Ahsan (PW-20)

Ansari

A2 Pawan Ex.P-38, Ex.P-39 Black Nitin Gupta (PW-

Gupta 20.11.2010 colored Ba- 19), Mohd. Hasib

jaj discover (PW-20)

motor bear-

ing registra-

tion CG 15

CA 6097

A3 Pradeep Ex.P-40, Ex.P-41 & One Sam- Nitin Gupta (PW-

Gupta 24.11.2010 P-42 sung mobile 19), Mohd. Hasib

bearing SIM (PW-20)

No.

756647309

3, One Blue

colored

Hero Honda

Splender

Motor Cycle

registration

No. CG

15/E2620

A4 Rashid Ex.P-13, Ex.P-14 & Currency Ajay Mishra

10

Mansuri 26.11.2010 P-15 notes same (PW-10), Nilesh

denomina- Dantkhede

Ex.P-18 & tion of Ex.P- (PW-35)

Ex.P-19 6, one black

Nokia Mo-

bile handset

with IMEI

No.

353407048

499289

having no

SIM Card.

Deceased

Ritik

Tikkas’s

school uni-

form, Tiffin,

shoes and

specially

belt. School

Uniform

bearing tag

of Carmel

School Am-

bikapur

(MP).

A5 Mohd. Nil, Nil Nil Nil

Harun 17.12.2010

Rashid

Ansari

A6 Ritesh Ex.P-55, Ex.P-56 & Currency Kapil Dev Singh

Gupta 17.12.2010 P-57 notes same (PW-23),

denomina- Rajendra Yadav

tion of Ex.P- (PW-28)

6 and white

color Nokia

Model No.

1100 bear-

ing a SIM

No.

966962720

Currency

notes as

same as

Ex.P-56

A7 Jitendra Ex.P-50, Ex.P-51 Currency Kapil Dev Singh

Gupta 17.12.2010 notes same (PW-23),

denomina- Rajendra Yadav

tion of Ex.P- (PW-28)

6 and black

color Nokia

mobile

Model No.

11

Nokia 1600

bearing a

EIMEI No.

358993101

76091414

A8 Prafull Ex.P-83, Ex.P-43 (Ta- Nil Satish Singh

Mahto 04.02.2011 lashi Panch- (PW-43), Ganpat

nama, how- Vaishnav (PW-

ever, no 45)

seizure has

been found.

Thereafter, on 21.11.2010 dead body of Ritik was recovered from Dakaniya Barnala pond of village Rodo, Police Station Bhandariya, District Gadwa (Jharkhand). It has been stated by appellant-Rashid Mansuri (A4) vide Ex.P-13 that he killed Ritik by strangulating him and thrown his body and bag in Barnala Pond of village Rodo, Police Station Bhandariya, District Gadwa (Jharkhand) with an intention to destroy the evidence. He further stated that he burnt the clothes and other belongings of deceased Ritik in furtherance to destroy the evidence. Consequently, inquest report vide Ex.P-35 was conducted by investigating officer Mangu Uraon (PW-32). This witness found school bag along with dead body tied with stones, which clearly shows that body was submerged in water so that nobody could find the body of the deceased. Dead body of Ritik was identified by Rupal Tikkas (PW-4) (elder brother of deceased Ritik) vide identification memo Ex.P-3. Dead body of the deceased was subjected to postmortem by Dr.Ram Vinod Kumar (PW-34) vide Ex. P-81. Though no definite opinion has been made by the medical officer who conducted postmortem regarding cause of death, but looking to the circumstances under which the dead body has been recovered, the learned trial Court was of the opinion that cause of death was homicidal in nature. Witness Jitendra Gupta (PW-9) has made statement under Section 164 of the CrPC on 26.11.2010 before the Judicial Magistrate First Class, Ambikapur vide Ex.P-12, though in his Court statement, he has stated that his statement under Section 164 CrPC was recorded under threat/coercion of police, but on being asked by the Court as to whether he has been told this fact to the concerned Magistrate who has recorded his statement, he has stated that he has not do so although he has an opportunity to explain the same. Sister Jassi (PW-31) (Principal of Carmel School, Ambikapur) where deceased Ritik was studying on the date of incident identified buckle of the school vide Ex.P-77 recovered pursuant to memorandum statement (Ex.P-13) of Rashid Ansari (A4) vide recovery memo Ex.P-15. School belt buckle Article “A” was produced before the trial Court. Lata Tikkas (PW-1) (mother of the deceased) has also identified the belongings of the deceased produced before the trial Court vide Article “A” and “B” and further stated that her son used to make paintings from colour pencils which was found in bag of deceased Ritik. Akhilesh Gupta (PW-13) has proved the transaction of money at the instance of accused Jitendra Gupta (A6). Kishore Kumar Mahta (PW-30), Anil Verma (PW-14), Pradeep Singh (PW-33), Uday Veer Singh (PW-42) and Saidutt Bohre (PW-47) proved call details from Ex.P-22 to Ex.P-34 and Ex.P-64 to Ex.P-76 disclosing that during the commission of offence, all accused persons having connectivity on their mobile phones to prove conspiracy under Section 120B of the IPC.

Mobile having IEMEI 353407048499289 seized vide Ex.P-14 from Rashid Mansuri has been used to operate the SIM card number 7677397527 by which ransom call has been made to Lata Tikkas in her mobile number 9826186146. Mobile having IEMEI number 358993017609140 seized vide Ex.P-51 from Jitendra Gupta has been used to operate the SIM card number 7677819796 by which second ransom call has been made to Lata Tikkas in her mobile number 9826186146.

After due investigation, all the appellants were charge-sheeted for the aforesaid offences in which they abjured the guilt and entered into defence stating inter-alia that they have not committed any offence and they have falsely been implicated in crime in question.

In order to bring home the offence, the prosecution examined as many as 48 witnesses and exhibited 88 documents Exs.P-1 to P-88. None was examined on behalf of the defence, however, documents (Exs.D-1 to D-6) were brought on record.

The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 4.3.2014, proceeded to convict the aforesaid accused persons for the aforesaid offences and sentenced them as aforementioned, against which, these criminal appeals have been preferred.

Ms. Ranjana Jaiswal, learned counsel for the appellants-Chhotu @ Mohammad Ahsan Ansari (A1) and Rasid Mansuri (A4), would submit that there is no legally admissible evidence against appellants-Chhotu @ Mohammad Ahsan Ansari (A1) & Rasid Mansuri (A4) and only currency notes have been recovered, which have not been proved in accordance with law. She would further submit that memorandum and seizure witnesses have turned hostile and they have not supported he case of the prosecution. Therefore, the prosecution has not proved its case beyond reasonable doubt. As such, appellants-Chhotu @ Mohammad Ahsan Ansari (A1) and Rasid Mansuri (A4) deserve to be acquitted from the aforesaid charges.

Mr.Kishore Bhaduri, learned Senior Advocate with Mr.Neeraj Mehta and Mr.Pankaj Singh, learned counsel for the appellants-Pawan Gupta (A2) and Pradeep Gupta (A3), would submit that from appellant-Pawan Gupta (A2), only black colour Bajaj Discover motor-cycle bearing registration number CG 15 CA 6097 has been seized, which nowhere connect him for the aforesaid offences. Similarly, from appellant-Pradeep Gupta (A3), one Samsung mobile and one blue colour Hero Honda Splender Motor-cycle bearing registration number CG 15 E 2620 have been recovered, which nowhere connect him for the aforesaid offences and seizure has not been proved in accordance with law. As such, they are entitled for acquittal by giving benefit of doubt as there is no legal evidence available on record against them.

Mr.Sakti Raj Sinha, learned counsel for the appellant-Ritesh Gupta (A6) would submit that identification of seized currency notes has not been done in accordance with law and seizure & memorandum have not been proved in accordance with law. Therefore, there is absolutely no evidence against appellant-Ritesh Gupta (A6) and as such, his conviction is absolutely unjustified and bad in law.

Mr.Akhilesh Kumar, learned counsel for the appellant-Jitendra Gupta (A7) would submit that currency notes seized vide seizure memo Ex.P-51, in which series and currency note series numbers have not been mentioned and even seizure has not been proved in accordance with law. Therefore, he is entitled for acquittal.

Mr.Bhupendra Singh, learned counsel for appellant-Prafull Mehto (A8) would submit that only allegation against him is that he has received stolen property, whereas considering the statement of Akhilesh Gupta (PW-13), it is quite vivid that there is no evidence against him for offence under Section 412 of the IPC. Therefore, he deserves to be acquitted from the aforesaid charge.

Mr.Aman Upadhyay, learned counsel for the applicant-Smt.Lata Tikkas would submit that considering the nature of offence in which school going boy has been kidnapped and after hatching conspiracy, he has been murdered, it is a fit case where sentence awarded to the appellants deserves to be enhanced.

On the other hand, Mr.Raghvendra Pradhan, learned Additional Advocate General with Mr.Sudeep Verma, learned Deputy Government Advocate and Mr.Soumya Rai, learned Panel Lawyer for the respondent/State would support the impugned judgment and submit that the prosecution has proved its case beyond reasonable doubt and the learned trial Court after considering all incriminating materials and circumstances available against the accused persons rightly convicted them for the aforesaid offences. They would further submit that the prosecution has proved its case beyond reasonable doubt. Hence, the instant criminal appeals being bereft of merits are liable to be dismissed looking to the commission of offence done by the accused persons.

We have heard learned counsel appearing for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

20.The first question for consideration would be, whether death of deceased Ritik was homicidal in nature ?

On behalf of the prosecution, Dr.Ram Vinod Kumar, who was conducted postmortem on the body of the deceased vide Ex.P-81, has been examined as PW-34. Though no definite opinion has been given by the doctor regarding cause of death, but taking into consideration the evidence of Dr. Ramvinod Kumar (PW-34) and postmortem report Ex.P-81, the learned trial Court came to the conclusion that the cause of death was homicidal. In our considered opinion, finding recorded by the trial Court that death of deceased Ritik was homicidal in nature is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. We hereby affirm the said finding recorded by the trial Court. Even otherwise, said finding recorded by the trial Court has not been questioned seriously by the learned counsel for the appellants.

It is the case of no direct evidence, rather conviction is based on circumstantial evidence. Five golden principles which constitute Panchseel of proof of case based on circumstantial evidence have been laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, which state as under :-

“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established;

(2) the facts 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;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) 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.”

The learned trial Court after appreciating oral and documentary evidence available on record has convicted the appellants [except appellant-Prafull Mehto (A8)] for offence under Sections 364A/120B, 386/120B, 302/120B & 201/120B of the IPC and convicted appellant-Prafull Mehto (A8) for offence under Section 412 of the IPC and found proved the following incriminating circumstances against them:-

The appellants except appellant-Prafull Mehto (A8) have also been convicted for offence under Section 364-A of the IPC. Before Section 364-A is attracted and a person is convicted, the prosecution must prove the following ingredients :

(1) the accused must have kidnapped, abducted or detained any person;

(2) he must have kept such person under custody or detention; and

(3) kidnapping, abduction or detention must have been for ransom. To pay a ransom, in the ordinary sense means to pay the price or demand for ransom. This would show that the demand has to be communicated. (See Malleshi v. State of Karnataka 2004 (8) SCC 95 and Vinod v. State of Haryana 2008 (2) SCC 246).

It is the case of the prosecution that all the appellants conspired together and kidnapped / abducted minor victim Ritik Tikkas for ransom, exported ransom from his family and murdered Ritik Tikkas and thereupon caused evidence connected to the said crime to disappear in order to screen themselves from the offences.

The trial Court found the motive of the offence proved and established holding that appellant-Chhotu @ Mohd. Ahsan Ansari (A1) was working as driver for 10 months in Bolero owned by Ratnakar Tikkas (PW-2) and immediately prior to the incident, he was removed from job as they were unable to pay him salary to the tune of Rs. 3000/- per month and appellant-Chhotu @ Mohd. Ahsan Ansari (A1) used to steal pen drive, cassette etc. and not giving correct account of rent and diesel and for which, the quarrel took place between Chhotu @ Mohd. Ahsan Ansari (A1) and Rupal Tikkas (PW-4) and said fact is duly established as per statements of Smt.Lata Tikkas (PW-1), Ratnakar Tikkas (PW-2) and Rafique Ali (PW-3). As such, motive found established by the trial Court is clearly borne out from the record. We hereby affirm that finding.

It is the case of the prosecution that on 15.11.2010 at about 7.15 a.m. Ritik Tikkas, who was studying in Class-IV, proceeded for Carmel School, Ambikapur wearing check shirt of mehroon colour, block shoes, socks and school belt with a mono of school and thereafter Rupal & Ruchika also went to the school. In after-noon at about 3.58 p.m. the kidnappers called Smt.Lata Tikkas (PW-1) and demanded ransom, which she informed to Ratnakar Tikkas (PW-2) and Ratnakar Tikkas (PW-2) called his friend Rafique Ali (PW-3) and they informed the matter to the police and in evening again, the kidnapper called Smt.Lata Tikkas and informed about kidnapping of her son and demanded ransom to Rs. 10 lakhs and threatened to kill her son Ritik if they will inform the matter to the police. Again Smt.Lata Tikkas (PW-1) received mobile call on 16.11.2010 and Ratnakar Tikkas (PW-2) and Rafique Ali (PW-3) along with driver Deepak Minz (PW-12) came to the State Bank of India, Main Branch, Ambikapur and demanded Rs. 4 lakhs, which were given to Ratnakar Tikkas (PW-2) of 50, 100 and 500 denomination by cashier Devendra Kumar Dubey (PW-8) vide Ex.P-6 and Ex.P-10C after noting the denomination to be used in future. In addition, Rs. 1 lakh was privately managed making the amount Rs. 5 lakhs. On 16.11.2010 at about 4 p.m. the kidnapper called Ratnakar Tikkas (PW-2) at Silfili and they promised to release Ritik Tikkas in next morning at 9 a.m. The amount was left on the place informed by the kidnapper, but Ritik was not released by them. Mobile having IEMEI number 353407048499289 seized vide Ex.P-14 from Rashid Mansuri has been used to operate the SIM card number 7677397527 by which ransom call has been made to Lata Tikkas in her mobile number 9826186146. Similarly, mobile having IEMEI number 358993017609140 seized Ex.P-51 from Jitendra Gupta has been used to operate the SIM card number 7677819796 by which second ransom call has been made to Lata Tikkas in her mobile number 9826186146. As such, the aforesaid fact of kidnapping and receipt of ransom has been proved by Smt.Lata Tikkas (PW-1), Ratnakar Tikkas (PW-2) and Rafique Ali (PW-3) and Rupal Tikkas (PW-4), but Ritik was not released and he was murdered. Thereafter Chhotu @ Mohd. Ahsan Ansari (A1) was apprehended by the police and pursuant to his memorandum statement vide Ex.P-36, seizure was made vide Ex.P-37 and 100 notes of 100 denomination and 30 notes of 100 denomination as reflected in Ex.P-6 and Ex.P10C, total Rs. 13000/- was seized from appellant-Chhotu @ Mohd. Ahsan Ansari, which was duly proved by Nitin Kumar Gupta (PW-19) and Mohammad Hasib (PW-20). Similarly, from first memorandum statement of Rashid Mansuri (A4) vide Ex.P-13, seizure was made vide Ex.P-14 and Ex.P-15 and 100 notes of 100 denomination and 5 currency notes of 500 denomination, total Rs. 12,500/- as reflected in Ex.P-6 and Ex.P-10C by the bank and one black colour Nokia mobile having no SIM card, deceased Ritik Tikkas’s school uniform, tiffin, shoes, belt, school uniform bearing tag of Carmel School, Ambikapur were seized by Ajay Mishra (PW-10) and Nilesh Dantkhede (PW-35) and from second memorandum statement of Rashid Mansuri (A4) vide Ex.P18, seizure was made vide Ex.P-19 and Ex.P-20 and 13 currency notes of 500 denomination, total Rs. 6500/- as reflected in Ex.P-6 and Ex.P-10C by the bank and one black-red Hero Honda Passion Plus motor-cycle bearing registration number CG 10 BC 2697 were seized by Ajay Mishra (PW-10) and Nilesh Dantkhede (PW-35). Sister Jassi (PW-31), Principal of Carmel School, Ambikapur where deceased Ritik was studying identified the buckle of the school belt vide Ex.P-77 recovered pursuant to the memorandum statement (Ex.P-13) of Rashid Ansari (A4) vide recovery memo Ex.P-15 and school belt buckle Article “A” was produced before the trial Court. Smt.Lata Tikkas (PW-1) (mother of deceased Ritik) has also identified the belongings of the deceased before the trial Court vide Articles “A” & “B” and further stated that her son used to make paintings from colour pencils which was found in bag of the deceased. Similarly, from memorandum statement of accused Ritesh Gupta (A6) vide Ex.P-55, seizure was made vide Ex.P-56 and Ex.P-57 and 8 notes of 100 denomination and 1 note of 10 denomination, total Rs. 810/- and white colour Nokia mobile Model No. Nokia 1100 bearing SIM No.9669627201 were seized, which were duly proved by Kapil Dev Singh (PW-23) and Rajendra Yadav (PW-28). Pursuant to memorandum statement of Jitendra Gupta (A7) vide Ex.P-50, 120 notes of 500 (60,000/-), 300 notes of 100 denomination (30000/-), 600 notes of 50 denomination (30,000/-), total Rs. 1,20,000/- as reflected in Exs.P-6 and P-10C and black colour Nokia mobile Model No.Nokia 1600 bearing IEMEI No.3589931017609 were seized vide Ex.P-51, which was proved by Kapil Dev Singh (PW-23) and Rajendra Yadav (PW-28), which the appellants have not explained in their statements recorded under Section 313 CrPC as it was ransom amount as alleged by the prosecution, which they were obliged to explain by virtue of Section 106 of the Evidence Act.

On 21.11.2010 dead body of victim Ritik Tikkas was recovered from Dakaniya Barnala pond of village Rodo, Police Station Bhandariya, District Gadwa (Jharkhand). It has been stated in the memorandum statement of Rashid Mansuri (A4) vide Ex.P-13 that he killed deceased Ritik Tikkas by strangulating him and disposed his body and bag in Barnala Pond of village Rodo, Police Station Bhandariya, District Gadwa (Jharkhand) with in-tention to destroy the evidence. He further stated that he burnt the clothes and other belongings of deceased Ritik Tikkas in fur-therance to conceal the evidences. Inquest report has been prepared by Mango Uraon (PW-32) vide Ex.P-35. This witness also found school bag along with dead body tied with stones which clearly shows that body was submerged in water so that nobody could find the body of the deceased. Dead body of the deceased has been identified by elder brother of Ritik Tikkas namely, Rupal Tikkas (PW-4) vide identification memo Ex.P-3. Akhilesh Gupta (PW-13) in his Court’s statement clearly deposed regarding transactions of money at the instance of accused Jitendra Gupta (A6). Kishore Kumar Mahtha (PW-30), Anil Verma (PW-14), Pradeep Singh (PW-33), Uday Veer Singh (PW-42) and Saidutt Bohre (PW-47) have proved call details vide Ex.P-22 to Ex.P-34 and Ex.P-64 to Ex.P-76 which clearly demonstrates that during the commission of offence, all the accused persons having connectivity on their mobile phones and they have interacted and that is sufficient to prove the conspiracy between them for offence under Section 120B of the IPC.

Thus, it is quite vivid that motive of the offence has been established as appellant-Chotu @ Mohd. Ahsan Ansari (A1) to whom Ritik was familiar as he was previously working as driver of Tikkas family and Tikkas family also raised suspicion over him, which later on confirmed, as pursuant to his memorandum statement vide Ex.P-36, on the strength of which, seizure of currency notes of same denomination given by Ratnakar Tikkas (PW-2) to the kidnappers as reflected in Exs.P-6 and Ex.P-10C and also quarrel had taken place between appellant-Chhotu @ Mohd. Ahsan Ansari (A1) and Rupal Tikkas (PW-4), brother of deceased Ritik, to prove the motive of Chhotu @ Mohd. Ahsan Ansari (A1) to commit murder of Ritik Tikkas.

Evidence available on record would show that appellants-Pawan Gupta (A2) and Pradeep Gupta (A3) have actively participated in the commission of offence and also accompanied appellant-Chhotu @ Mohd. Ahsan Ansari (A1) and appellant-Ritesh Gupta (A6) to enter into village Chiniya (Jharkhand) in fixing meeting with absconded accused Manoj Tiwari and accused Rashid Mansuri (A4) is the person who actually killed Ritik Tikkas and thrown his dead body into Dakaniya Barnala pond of village Rodo, Police Station Bhandariya, District Gadwa (Jharkhand) so that his identification could not be disclosed to anyone as pursuant to his memorandum statement (Ex.P-13), on the strength of which seizure of currency notes of same denomination given by Ratnakar Tikkas (PW-2) to the kidnappers as reflected from Exs.P-6 and P10A, has been made. Memorandum statement of Rashid Mansuri (A4) would further show that the place where the belongings of the deceased Ritik Tikkas such as, school uniform, tiffin, shoes, belt, school uniform bearing tag of Carmel School, Ambikapur were recovered duly identified by Smt.Lata Tikkas (PW-1), Principal of Carmel School Sister Jassi (PW-31). Furthermore, mobile having IEMEI 353407048499280 seized vide Ex.P-14 from Rashid Mansuri (A4) has been used to operate the SIM card number 7677397527 by which ransom call has been made to Lata Tikkas in her mobile number 9826186146 has also been proved. Accused Ritesh Gupta (A6) right from beginning is associated with the crime and he received his share in ransom money. Further accused Ritesh Gupta (A6) given his memorandum statement vide Ex.P-55, on the strength of which seizure of currency notes of same denomination given by Ratnakar Tikkas to the kidnappers as reflected in Exs.P-6 and Ex.P-10C, is duly established. Accused Jitendra Gupta (A7) right from beginning is associated with the crime and he received his share in ransom money, which is clear from his memorandum statement (Ex.P-55), on the strength of which seizure of currency notes of same denomination given by Ratnakar Tikkas to the kidnappers as reflected in Exs.P-6 and Ex.P-10C, is duly established.

As such, we are of the considered opinion that the trial Court has rightly found incriminating circumstances as mentioned in para-122 of the impugned judgment as motive of the offence has been established and the appellants [except appellant-Prafull Mehto (A8)] kidnapped minor Ritik for ransom of Rs. 10 lakhs and received ransom of Rs. 5 lakhs which they shared among them and thereafter committed murder of Ritik and thrown dead body into Barnala Pond of village Rodo, Police Station Bhandariya, District Gadwa (Jharkhand) and pursuant to memorandum statements of accused Chhotu @ Mohd. Ahsan Ansari (A1), Rashid Mansuri (A4), Ritesh Gupta (A6) and Jitendra Gupta (A7), ransom currency of same denomination has been recovered which they have failed explain in the statement under Section 313 CrPC and the prosecution has proved the conspiracy and also proved that in order to screen themselves from offence they have thrown dead body into Barnala Pond of village Rodo, Police Station Bhandariya, District Gadwa (Jharkhand).

As noticed herein-above, from possession of Chhotu @ Mohd. Ahsan Ansari (A1), Rashid Mansuri (A4), Ritesh Gupta (A6) and Jitendra Gupta (A7), tainted money as well as personal belongings to deceased Ritik were recovered from the possession of appellant-Rashid Ansari (A4), which they have not explained under Section 313 of the CrPC, which they obliged to explain by virtue of Section 106 of the Evidence Act, 1872.

Section 106 of the Indian Evidence Act, 1872, states as under: -

“106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact.

The principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused persons were in such a position that they could have special knowledge of the fact concerned.

In the matter of Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC 404, their Lordships of the Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The Supreme Court while considering the word “especially” employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under: -

“11. … The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted other-wise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused per-son to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P. 49 (B).”

Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts.

The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar (2021) 10 SCC 725 in which it has been held by their Lordships of the Supreme Court as under: -

“22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.

When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.”

Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab AIR 1956 SC 460, while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certain lies upon him.

The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with ap-proval by their Lordships in the matter of Sawal Das v. State of Bihar AIR 1974 SC 778 and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence.

The Supreme Court in the matter of Sucha Singh v. State of Punjab (2001) 4 SCC 375 has held that once the person concerned has been shown as having been kidnapped, the onus would shift on the kidnapper to establish how and when the kidnapped individual came to be released from his custody. In the absence of any such proof produced by the kidnapper, it would be natural to infer/presume that the kidnapped person continued in the kidnapper’s custody till he was eliminated. In this regard, in Sucha Singh (supra), their Lordships of the Supreme Court have held as under:-

“15. The abductors alone could tell the court as to what happened to the deceased after they were abducted. When the abductors withheld that information from the court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased.

We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.

We have seriously bestowed our consideration to the arguments addressed by the learned Senior Counsel. We only reiterate the legal principle adumbrated in State of W.B. v. Mir Mohd. Omar (2000) 8 SCC 382 that when more persons than one have abducted the victim, who was later murdered, it is within the legal province of the court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder. Section 34 IPC could be invoked for the aid to that end, unless any particular abductor satisfies the court with his explanation as to what else he did with the victim subsequently, i.e. whether he left his associates en route or whether he dissuaded others from doing the extreme act etc. etc.

We are mindful of what is frequently happening during these days. Persons are kidnapped in the sight of others and are forcibly taken out of the sight of all others and later the kidnapped are killed. If a legal principle to be laid down is that for the murder of such kidnapped there should necessarily be independent evidence apart from the circumstances enumerated above, we would be providing a safe jurisprudence for protecting such criminal activities. India cannot now afford to lay down any such legal principle insulating the marauders of their activities of killing kidnapped innocents outside the ken of others.”

The principle of law laid down in Sucha Singh (supra) was followed with approval by the Supreme Court in the matter of Sunder alias Sundararajan v. State by Inspector of Police (2013) 3 SCC 215 and it has been held that once it is duly established that the deceased has been kidnapped by the accused, the burden lies on him to explain release of the victim from his custody. It was observed as under:-

“36. Since in the facts and circumstances of this case, it has been duly established that Suresh had been kidnapped by the accused- appellant; the accused-appellant has not been able to produce any material on the record of this case to show the release of Suresh from his custody. Section 106 of the Indian Evidence Act, 1872 places the onus on him. In the absence of any such material produced by the accused-appellant, it has to be accepted that the custody of Suresh had remained with the accused-appellant, till he was murdered. The motive/reason for the accused-appellant for taking the extreme step was, that ransom as demanded by him had not been paid. We are therefore satisfied that in the facts and circumstances of the present case, there is sufficient evidence on the record of this case on the basis whereof even the factum of murder of Suresh at the hands of the accused-appellant stands established.

We may now refer to some further material on the record of the case to substantiate our aforesaid conclusion. In this behalf, it would be relevant to mention that when the appellant-accused was detained on 30-7-2009, he had made a confessional statement in the presence of Kasinathan (PW13) stating that he had strangulated Suresh to death, whereupon his body was put into a gunny bag and thrown into Meerankulam tank. It was thereafter on the pointing out of the appellant-accused that the body of Suresh was recovered from Meerankulam tank. It was found in a gunny bag, as stated by the appellant-accused. Dr. Kathirvel (PW12) concluded after holding the post-mortem examination of the dead body of Suresh that Suresh had died on account of suffocation prior to his having been drowned. The instant evidence clearly nails the appellant-accused as the perpetrator of the murder of Suresh. Moreover, the statement of Kasinathan (PW13) further reveals that the school bag, books and slate of Suresh were recovered from the residence of the appellant-ac-cused. These articles were confirmed by Maheshwari (PW1) as belonging to Suresh. In view of the factual and legal position dealt with hereinabove, we have no doubt in our mind, that the prosecution had produced sufficient material to establish not only the kidnapping of Suresh, but also his murder at the hands of the appellant-accused.”

Similarly, in the matter of Suresh and another v. State of Haryana (2015) 2 SCC 227, their Lordships have held as under:-

“8. The learned counsel for the State opposed the above statement and pointed out that the dead bodies were recovered at the instance of the appellants, apart from the recovery of car and personal belongings of the deceased. SI Rajender Singh (PW14) and Inspector Randhir Singh (PW17) had overheard the conversation of the accused making demand of ransom on telephone at the STD Booth. The accused refused to give their voice sample as recorded in the order dated 1-1-2001 passed by the Additional Chief Judicial Magistrate, Gurgaon on application (Ext. PF). Pooja Chopra (PW12) deposed that the deceased Devender Chopra had a talk with her mother on 18- 12-2000 that the deceased had been kidnapped for ransom which was followed up by further conversation with the kidnappers. Raman Anand (PW2) also had talks with the kidnappers from the mobile phone of his friend Neeraj. According to the post-mortem reports, the death of Devender Chopra was on account of strangulation and cutting of throat by sharp weapon. Death of Abhishek Chopra was on account of stab injuries in chest and abdomen and the head injury caused by blunt force impact.

Apart from the above, this is a case where Section 106 of the Evidence Act is clearly attracted which requires the accused to explain the facts in their exclusive knowledge. No doubt, the burden of proof is on the prosecution and Section 106 is not meant to re-lieve it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for the prosecution to establish facts which are strictly within the knowledge of the accused. Recovery of dead bodies from covered gutters and personal belongings of the deceased from other places disclosed by the accused stood fully established. It casts a duty on the accused as to how they alone had the information leading to recoveries which was admissible under Section 27 of the Evidence Act. Failure of the accused to give an explanation or giving of false explanation is an additional circumstance against the accused as held in number of judgments, including State of Rajasthan v. Jaggu Ram (2008) 12 SCC 51.”

In preceding paragraphs, we have already held that the appellants except appellant-Prafull Mehto (A8) in furtherance of conspiracy kidnapped deceased Ritik and also received ransom of Rs. 5 lakhs, which they distributed to each other and thereafter did not release the victim and in absence of explanation under Section 313 of the CrPC, it is safely held that it is the appellants, [except appellant-Prafull Mehto (A8)], who are responsible for eliminating deceased Ritik. It is held accordingly.

Now at this stage the submissions of the learned counsel for the appellants deserves to be considered. Ms. Jaiswal, learned counsel for appellants-Chhotu @ Mohammad Ahsan (A1) and Rasid Mansuri (A4) would submit that recovery of tainted/ransom money has not been proved as their memorandum and seizure witnesses have turned hostile. Ex.P-36 is the memorandum statement of appellant-Chhotu @ Mohammad Ahsan (A1) recorded in presence of two panch witnesses mamely, Nitin Kumar Gupta (PW-19) and Mohammad Hasib (PW-20) and seizure of currency note of Rs. 13,000/- vide Ex.P-37, though Nitin Kumar Gupta (PW-19) has been declared hostile during his examination-in-chief, but initially he has clearly supported the recovery of tainted money of Rs. 13,000/- from appellant-Chhotu @ Mohammad Ahsan (A1) from his tenanted premises. Similarly Mohammad Hasib (PW-20) has also supported the case of the prosecution i.e. recovery of tainted money of Rs. 13,000/- from the house of appellant-Chhotu @ Mohammad Ahsan (A1). Ex.P-13 is the memorandum statement of appellant-Rasid Mansuri (A4) recorded in presence of two panch witnesses Ajay Kumar Mishra (PW-10) and Nilesh Dankhade (PW-35) vide Ex.P-14 and tainted money of Rs. 12,500/- was recovered and Ajay Kumar Mishra (PW-10) has fully supported the recovery of Rs. 12,500/- from the possession of appellant-Rasid Mansuri (A4) and also Nilesh Dankhade (PW-35). Apart from this, pursuant to memorandum statement of appellant-Rasid Mansuri (A4), vide Ex.P-15 deceased Ritik’s uniform, belt, shoes, burnt book and copies, burnt school belt, compass etc. were also seized, duly proved by Ajay Kumar Mishra (PW-10) and Nilesh Dankhade (PW-35) and furthermore, vide Ex.P-18 other memorandum statement of appellant-Rasid Mansuri (A4), tainted money of Rs. 6500/- was also seized vide Ex.P-19 in presence of above-stated two panch witnesses namely, Ajay Kumar Mishra (PW-10) and Nilesh Dankhade (PW-35), duly proved by them. As such, in our considered opinion, the submission, recovery of tainted money & articles pursuant to memorandum statements of appellants-Chhotu @ Mohammad Ahsan (A1) and Rasid Mansuri (A4) have not been established beyond doubt deserves to be rejected.

The submission of Mr. Kishore Bhaduri, learned Senior Counsel appearing on behalf of appellants-Pawan Gupta (A2) and Pradeep Gupta (A3) is that from the possession of appellant-Pawan Gupta (A2), only black colour Bajaj motorcycle has been seized and similarly from the possession of appellant-Pradeep Gupta (A3), one Sumsung mobile and one blue colour Splendor motorcycle has been seized. Therefore, except recovery of motorcycle and mobile phone, there is no other evidence connecting them from offence in question and as such, they are entitled for acquittal. The trial Court has clearly recorded a finding that pursuant to memorandum statement of appellant-Pawan Gupta (A2) Bajaj Discover motorcycle and mobile have been seized duly proved by investigating officer R.K.Mishra (PW-48) and Mohammad Hasib (PW-20). Similarly, pursuant to memorandum statement of appellant-Pradeep Gupta (A3), mobile phone (Ex.P-41) and motorcycle (Ex.P-42) have been seized duly proved by R.K.Mishra (PW-48) and Mohammad Hasib (PW-20), but in view of call details report vide Ex.P-22 to Ex.P-34 and Ex.P-64 to Ex.P-76 duly proved by Kishore Kumar Mahtha (PW-30), Anil Verma (PW-14), Pradeep Singh (PW-33), Uday Veer Singh (PW-42) and Saidutt Bohre (PW-47), the fact of hatching conspiracy of demanding ransom and thereafter causing death of deceased Ritik by all the appellants except appellant-Prafull Mehto (A8) including appellants-Pawan Gupta (A2) and Pradeep Gupta (A3) has been proved. We are of the considered opinion that said finding recorded by the trial Court is correct finding based on evidence available on record, which is neither perverse nor contrary to record. As such, the argument of the leaned Senior Counsel except recovery of mobile and motor-cycle, there is no legal evidence on record against them (A2 & A3) and they are entitled for acquittal deserves to be rejected and is accordingly rejected.

(A) Mr.Sinha, learned counsel for appellant-Ritesh Gupta (A6) had submitted that identification of seized notes have not been done in accordance with law and seizure & memo have also not been established and as such, appellant-Ritesh Gupta (A6) is entitled for acquittal. As per memorandum statement of appellant-Ritesh Gupta (A6), in presence of two panch witnesses namely, Kapildev Singh (PW-23) and Rajendra Yadav (PW-28), an amount of Rs. 810/- and one mobile set were seized vide Ex.P-56 and vide Ex.P-57, Rs. 20,000/- (400 notes of Rs. 50/-, seized notes Article I.J.K.L.) was recovered of following serial numbers:

(i) oLM 760201 to oLM 760300 (ii) oLM 760301 to oLM 760400 (iii) oLM 760801 to oLM 760900 (iv) oLM 760901 to oLM 761000

Total 20,000/-

(B) Kamlesh Dubey (PW-7) (Bank Manager of State Bank of India, Main Branch, Ambikapur) has proved Bank’s letter dated 8.12.2010 (Ex.P-6). The said document (Ex.P-6) states as under:-

As such, seized notes Article I.J.K.L. from the possession of Appellant-Ritesh Gupta (A6) are the same, which were given to Ratnakar Tikkas (PW-2) by Kamlesh Dubey (PW-7) vide Ex.P-6 duly established by testimony of investigating officer R.K.Mishra (PW-48). Thus, witnesses namely Kapildev Singh (PW-23) and Rajendra Yadav (PW-28) have supported the case of the prosecution and therefore, the argument advanced on behalf of Appellant-Ritesh Gupta (A6) deserves to be and is hereby rejected.

Mr.Akhilesh Kumar, learned counsel for appellant-Jitendra Gupta (A7) had submitted that currency notes allegedly seized from the possession of appellant-Jitendra Gupta (A7) vide Ex.P-51 pursuant to his memorandum statement. In Ex.P-50 (memorandum statement), series number of currency notes have not been mentioned, therefore, it cannot be said that it was tainted money which has been recovered from the possession of appellant-Jitendra Gupta (A7) in presence of two panch wit-nesses Kapildev Singh (PW-23) and Rajendra Yadav (PW-28). A careful perusal of disclosure statement would show that from the possession of appellant-Jitendra Gupta (A7), though from the house of Mohd. Harun Rasid Ansari (A5), total Rs. 1,20,000/- was recovered. Denomination of currency notes states as under:-

Rs. 100 x 300 = 30,000 (8MK 073001 to 8 MK 073100)

(8MK 073101 to 8MK 073200)

(8MK 073301 to 8MK 073400)

Rs. 50 x 600 = 30,000 (oLM 760001 to oLM 760100)

(oLM 760101 to oLM 760200)

(oLM 760401 to oLM 760500)

(oLM 760501 to oLM 760600)

(oLM 760601 to oLM 760700)

(oLM 760701 to oLM 760800)

As such, in the memorandum statement of appellant-Jitendra Gupta (A7), series number of Rs. 50 & Rs. 100 have clearly been mentioned which finds place in Ex.P-6 Bank Document proved by Kamlesh Dubey (PW-7). Non-mention of series number of Rs. 500 denomination in Ex.P-51 would have no adverse impact on memorandum as series number of Rs. 50 & Rs. 100 denomination have already mentioned in memorandum statement of appellant-Jitendra Gupta (A7) duly proved by R.K.Mishra (PW-48), Kapildev Singh (PW-23) and Rajendra Yadav (PW-28) and as such, this piece of evidence clearly establishes the guilt of appellant-Jitendra Gupta (A7) in absence of his explanation / his statement under Section 313 CrPC. Thus, the argument advanced in this behalf deserves to be and is hereby rejected.

As such, the trial Court is absolutely justified in convicting the appellants [except appellant-Prafull Mehto (A8)] for offence under Sections 364A/120, 386/120B, 302/120B and 201/120B of the IPC.

Appellant-Prafull Mehto (A8) has been convicted for offence un-der Section 412 of the IPC. Learned counsel for the appellant-Prafull Mehto (A8) has submitted that there is no legal evidence against him for commission of offence under Section 412 of the IPC as the alleged stolen property / tainted money to the tune of Rs. 2,90,000/- has not been recovered from the possession of appellant-Prafull Mehto (A8) and except self-serving statement of Jitendra Gupta (A7) and Akhilesh Gupta (PW-13), there is no legal evidence against appellant-Prafull Mehto (A8). Therefore, conviction of appellant-Prafull Mehto (A8) is unsustainable and liable to be set aside.

Section 412 is the offence of dishonestly receiving the property stolen in the commission of a dacoity. However, Section 410 of the IPC defines stolen property. For sake of convenience, Sections 410 and 412 are reproduced herein for ready reference:-

“410. Stolen Property.- Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.

Dishonestly receiving property stolen in the commission of a dacoity.—Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”

For the applicability of Section 412 of the IPC, the prosecution has to show something more than mere possession of the stolen goods. It must also be shown that (i) the receiver knew or had reason to believe that the property had been transferred to him on account of commission of a dacoity; (ii) that the accused did receive or retain the same; (iii) that he received or retained the same with the intention of causing wrongful gain to one person or wrongful loss to another person and (iv) that he knew or had a reason to believe that possession of the property was transferred by commission of dacoity.

Reverting to the facts of the present case, it is quite vivid that it is the case of the prosecution that Rs. 2,90,000/- was tainted money, which appellant-Jitendra Gupta (A7) received in share and he had given the said amount to Akhilesh Gupta (PW-13) and Akhilesh Gupta (PW-13), in turn, has given the same to appellant-Prafull Mehto (A8) and thereby appellant-Prafull Mehto (A8) committed the offence, however, the aforesaid money has not been recovered from the possession of appellant-Prafull Mehto (A8). Talashi panchnama (Ex.P-43) has been prepared and pursuant to which, no seizure of tainted money has been made from appellant-Prafull Mehto (A8) and except self-serving memorandum statement of appellant-Jitendra Gupta (A7), who allegedly given money to Akhilesh Gupta (PW-13) and Akhilesh Gupta (PW-13), in turn, has given money to appellant-Prafull Mehto (A8), there is no legal evidence on record to establish that appellant-Prafull Mehto (A8) was in possession of tainted money of Rs. 2,90,000/-. Therefore, in absence of recovery of stolen property from the possession of appellant-Prafull Mehto (A8), it would be inappropriate to convict him under Section 412 of the IPC.

Accordingly, Criminal Appeal No.294/2014 filed on behalf of appellant-Prafull Mehto (A8) is allowed and his conviction & sentence under Section 412 of the IPC are hereby set aside. Appellant-Prafull Mehto (A8) is on bail, he need not surrender. However, his bail bonds shall remain in force for a period of six months in view of the provision contained in Section 437A of the CrPC. Criminal Appeal Nos.466/2014, 273/2014, 279/2014, 867/2014 and 500/2014 are dismissed being meritless. We also do not find any good ground to entertain Criminal Revision No.684/2014 filed by applicant-Smt.Lata Tikkas (mother of deceased Ritik). As such, criminal revision is also dismissed.

Let a certified copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.