Raj Kumarr Yadav, Manjit Jee vs State of Jharkhand

Ananda Sen, J.

1.This criminal appeal is directed against the Judgment of conviction dated 26th August, 2016 and Order of sentence dated 29th August, 2016 passed

by learned District & 3rd Additional Session Judge, Latehar in Session Trial No. 146 of 2011, whereby the appellant was found guilty and was

convicted for the offence punishable under Sections 364, 120B, 302, 201 of the Indian Penal Code; and the appellant was sentenced to undergo

imprisonment for life with a fine of Rs.10,000/- each for the offence under Section 364 of the Indian Penal Code, life imprisonment with a fine of

Rs.10,000/- for the offence under Section 120B/302 of the Indian Penal Code; and three years simple imprisonment with fine of Rs.5,000/- for the

offence under Section 201 of the Indian Penal Code and in default of payment of fine, the appellant has been ordered to undergo one year simple

imprisonment for each of the Section 364, 120B/302 Indian Penal Code and simple imprisonment for six months for the offence under Section 201 of

the Indian Penal Code. Further all the sentences were ordered to run concurrently. As per the judgment, out of the fine amount of Rs.25,000/-,

Rs.10,000/- each was to be paid to the dependents of deceased persons by way of compensation.

The prosecution case is based on the written report of Rohit Singh (P.W.2), an Engineer working in Abhijeet Group. It is alleged that on 17. 03.2011

at about 19.45 p.m., engineer Jitendra Singh and fabricator Mukesh Yadav, after completing their work at Abhijeet Group Power Plant, Chakla,

departed for Chandwa on motorcycle. When they did not return till 11 p.m., informant alongwith other persons of the company started searching for

them. In the meantime, on 18.05.2011 at 01.20 a.m. a phone call from mobile No.8757777160 was made by Jitendra on mobile No.935026556 and

896965576 saying that he and Mukesh Yadav are being beaten by the criminals and ransom amount of Rupees One Crore is being demanded, which

should be arranged by the informant. The informant believed that said persons were kidnapped for ransom.

On the basis of the aforesaid fardbeyan, Chandwa Police Station Case No.22 of 2011 was registered for an offence punishable under Section

364(A)/34 of the Indian Penal Code against unknown. After investigation, police submitted chargesheet against the appellant Raj Kumar Yadav @

Manjeet Jee and investigation was kept pending against rest three accused persons, namely, Dayal Yadav, Kamlesh Yadav and Manoj Yadav. The

case was committed to the Court of Session. Charges against the appellant was framed, on 24.01.2012, for the offence punishable under Sections

364A, 302, 201, 120B of the Indian Penal Code and Section 27 of the Arms Act. Charges were read over and explained to the appellant, which he

denied and claimed to be tried.

Prosecution, in order to bring home the charges, has examined as many as 8 witnesses â€" P.W.1 Tetar Turi, P.W.2 Rohit Singh (informant),

P.W.3 Nishant Yadav, P.W.4 Kailash Sao, P.W.5 Aslam @ Chhotu, P.W.6 Md. Firoj Khan, P.W.7 Akhilesh Prasad Mandal (Investigating Officer)

and P.W.8 Dr. Vinay Kumar. In addition to the above prosecution has also exhibited the following: -

(i) Exhibit 1 â€" Signature of Tetar Turi on seizure list

(ii) Exhibit 2 â€" Signature of Rohit Singh on written report

(iii) Exhibit 1/1 â€" Signature of Aslam Khan @ Chhotu Khan on seizure list.

(iv) Exhibit 1/2 â€" Signature of Firoz Khan on seizure-list

(v) Exhibit 3 â€" Formal FIR

(vi) Exhibit 4 â€" First seizure-list dated 24.03.2011 (regarding recovery of Micromax Mobile and SIMs)

(vii) Exhibit 4/1 â€" Second seizure-list dated 25.03.2011 (regarding motorcycle)

(viii) Exhibit 5 â€" Confessional statement of accused Raj Kumar Yadav (24.03.2011)

(ix) Exhibit 6 â€" Inquest report of Jitendra Singh

(x) Exhibit 7 â€" Inquest report of Mukesh Yadav

(xi) Exhibit 8 â€" Whole CDR (of mobile of deceased Jitendra Singh and Mukesh Yadav)

(xii) Exhibit 9 to 9/15 â€" Photographs of Motorcycle covered with woods and photographs of dead-bodies

(xiii) Exhibit 10 â€" Authority letter

(xiv) Exhibit 11 â€" P.M. Report of deceased Mukesh Yadav

(xv) Exhibit 12 â€" P.M. Report of deceased Jitendra Singh

(xvi) Material Exhibit I â€" Mobile Sets

(xvii) Material Exhibit II â€" SIM Cards

(xviii) Material Exhibit III â€" Cash of Rs.140/-

(xix) Material Exhibit IV â€" Key of recovered bike.

P.W.1 is Tetar Turi, who deposed that nothing had happened in his presence and he has not stated anything before the police, but, he identified his

signature on the seizure list, which was marked as Exhibit 1. He was declared hostile.

P.W.2 is Rohit Singh, who is the informant. He stated that he was an employee of Abhijeet Power Plant in Chandwa. On 17.03.2011, when he

returned from Ranchi, he could learn that Jitendra and Mukesh, who were Engineer and Fabricator of the said plant, had left for Chandwa at 05.45

p.m., but, they became traceless. On 17/18.03.2011, with the help of police, he tried to search them, but, they were not found. He stated that at about

20 a.m. from mobile phone of Jitendra bearing No.8757777160. The person stated that they were kidnapped and ransom of Rs.1 crore is being

demanded. He further stated that he informed the said fact to the police. He identified his writing and signature on the written report, which was

marked as Exhibit 2. He stated that Jitendra had not disclosed names of any persons who had kidnapped them.

P.W.3 is Nishant Yadav, who stated in the similar manner as stated by P.W.2. He stated that he also received phone call from Jitendra’s

number and Jitendra was saying that they were kidnapped and are being assaulted. He informed that a demand of Rs.1 crore was made as ransom

and if the same is not paid, they will be killed. He also stated that Jitendra had not disclosed name of any person who alleged to have kidnapped them.

P.W.4 is Kailash Sao, who stated that he knows nothing about the occurrence nor his statement was recorded by the police, as a result of which he

was declared hostile.

P.W.5 is Aslam @ Chhotu, who also deposed in similar manner and was also declared hostile.

P.W.6 is Md. Firoz Khan, who is the bodyguard of S.D.P.O. He stated that on 24.03.2011 the appellant was arrested near the Tori Railway

Station. He had disclosed that two senior engineer of Abhijeet Group namely Jitendra Singh and Mukesh Yadav were kidnapped. He had disclosed the

place where they were kept and had disclosed the place where the motorcycle was hidden. He had also disclosed that the dead bodies were

concealed at the Sisai Pahadi (hillock). This witness stated that the motorcycle, which was a CD Dawn bearing No. GJ 12AS 3227, was recovered

from deep forest. This witness has further stated that the two dead bodies of Jitendra Singh and Mukesh Yadav were recovered from the Sisai

Pahadi. After the recoveries were made, the accused-appellant along with the recovered dead bodies were brought to Chandwa Police Station. This

witness had put his signature on the seizure list in respect of motorcycle, which was marked as Exhibit 1/2. This witness had identified the accused-

appellant.

In cross examination it is recorded that this witness has identified Kamlesh Yadav who was wearing black T Shirt as Raj Kumar Yadav (appellant).

He has further stated in his cross examination that the seized motorcycle is not there in Court. They had gone to Sisai Pahadi on 24.03.2011 where

except the dead bodies other materials were not recovered. No Kulhari or Gainta were found. He does not know as to where the inquest was made.

He also could not say anything about the apparels which was on the dead body. On the point of injuries on the dead bodies, this witness remained

mum.

P.W.7 Akhilesh Prasad Mandal is the investigating officer of this case. He has stated that on 19.03.2011 he was posted as Officer-in-Charge at

Chandwa Police Station. He had taken up the investigation of P.S. Case No.22/2011 himself. On 17.03.2011, at about 7.45 p.m. informant-Rohit Singh

had informed that the Engineer and Fabricator of the Company Glassiticle, which is working under the Abhijeet Group, namely, Jitendra Singh and

Mukesh Yadav had left for Chandwa on their motorcycle, but they did not reach their home. Again on 18.03.2011 at 01.20 a.m. on mobile numbers

9350265556 and 896965576 Jitendra called from mobile No.8757777160 and told that criminals have kept him and Mukesh in the forest, beating them

and are also demanding ransom of Rs.1 crore and requested the informant to arrange for the money. On the basis of such information P.S. Case

No.22/2011 was registered on 19.03.2011 for offences under Sections 364A, 34 of the Indian Penal Code and on his instruction the investigation was

handed over by S.I. Ratan Lal Saha. The IO has stated to have recorded the statements of Rohit Singh, Nishant Yadav, Tetar Turi, Aslam Khan,

Police 692 Mo. Firoz Khan, Const. 483 Vinay Kumar Ram, Kailash Sao and other witnesses, who have supported the occurrence.

In course of investigation, the investigating officer inspected the first place of occurrence, i.e., Nagar More which is situated on N.H. 99 where the

road is 20 feet wide and has given description of the place. At this place, broken piece of mudguard of the motorcycle was recovered and seized.

Thereafter CDR of Mobile phones of Jitendra Singh and Mukesh Yadav were obtained. The IMEI of Mobile No.8757777160 of Jitendra Singh was

910045206277870 and IMEI of Mobile No.9973694444 of Mukesh Yadav was 356267014033660. CDR further disclosed that SIM of Mukesh Yadav

was used in three other mobile sets, i.e., (1) 359834032190910, (2) 357995000877920 and (3) 910040795911810, whereafter upon running the

suspected sets, three numbers were found, viz. from set No.(1) â€" 7250250886 two suspected numbers 7250250886 and 8102502952 were found. In

the meantime, the Investigating Officer made verification of the suspected mobile and also conducted investigation with Parmeshwar Yadav,

Rajkumar Yadav and others. In this course, a spy informed on 23.03.2011 that the occurrence has been committed by Manjit. Again on 24.03.2011,

upon pointing out by the spy, Manjit was arrested in front of Tori Railway Station. On query, the arrested person disclosed his name as Raj Kumar

Yadav @ Manjit Ji and suspected mobile No.7250957020 was recovered from him. This SIM was used in the mobile set of Mukesh Yadav at the

time of kidnapping.

In addition, Mobile No.8102502952, Cash amount of Rs.140/-photograph and a sealed SIM were recovered which were seized, a seizure list was

prepared in presence of witnesses. The accused-appellant made confessional statement on 24.03.2011 at the police station which was recorded by the

investigating officer. On the pointing out by the accused, the motorcycle was recovered and dead bodies were also recovered. The motorcycle was

recovered from deep forest where it was kept in a cave near river covered by wooden logs. Thereafter the dead bodies of Jitendra Singh and Mukesh

Yadav were recovered from Sisai Pahadi. The dead bodies were kept in a deep pit of 20-25 feet, which were very difficult to be taken out. Accused-

appellant Raj Kumar told them that dead bodies could be taken out from the northern side where Bhavnag Village is situated. Thereafter S.D.P.O.,

Latehar with some force went for inspecting the dead bodies and the investigating officer, Raj Kumar Yadav along with the force from police station

and CRPF went towards Bhavnath Village, but, before reaching Bhavnag Village, exchange of firing took place between them and CPI(M) extremists

which prolonged till late in the night, wherein Constable Amardeep Singh of CRPF and Ajit Singh of Simplex Company had died. Thereafter with the

help of intervention of S.P., Palamau, on 25.03.2011, dead bodies of Jitendra Singh and Mukesh Yadav were taken out and inquest report was

prepared. After recovery of the dead bodies, the investigating officer (P.W.7) stated to have gone along with Raj Kumar Yadav near the river and

prepared seizure list in respect of Motorcycle No. GJ 12AS 3277. The rear mudguard and light of the motorcycle were broken.

The investigating officer (P.W.7) has then stated to have obtained P.M. Report from RIMS. He has further stated that the accused Raj Kumar

Yadav in his confessional statement had disclosed the names of his other associates, namely, Dayal Yadav, Kamlesh Yadav and Manoj Yadav. The

investigating officer (P.W.7) on the basis of the materials available against Raj Kumar Yadav submitted chargesheet No.81/11 dated 16.06.2011

under Sections 364A, 302, 201, 120B of the Indian Penal Code and Section 27 of the Arms Act, keeping the investigating pending against the other

accused persons. This witness has further stated that in course of further investigation, he found that the suspected No. of Mukesh Yadav used in

IMEI No.357995000877920 was 9905590567 which stands in the name of Parmeshwar Yadav of Village Sorandag, P.S. Balumath. The tower

location of this number on 16.03.2011 and 17.03.2011 respectively was Balumath and Chakla and on 20.03.2011 it was Balumath area. The location of

other suspected mobile number 8102502952 was also found to be Chakla, Balumath, Loharji etc. Raj Kumar Yadav in his confessional statement had

stated that during the said period Kamlesh had gone to Balumath for bringing money. Both these numbers were used by Kamlesh Yadav.

During investigation, use of many mobile numbers were traced, which were found to have been obtained in the name of fictitious persons. This

witness has stated that Kamlesh Yadav had worked under the engineer who died and Kamlesh Yadav had stated that as he was working under the

Engineer, so a proposal for killing the engineer was brought after taking ransom of Rs.2,00,000/-. Both the deceased were killed by Kamlesh through

firing on 20.03.2011, which has also been supported by Raj Kumar Yadav in his confessional statement. This witness has further stated on 17.10.2011,

in P.S. Case No.78/2011, some accused persons were arrested in Khelari Police Station who had disclosed their name as Dayal Yadav and Pankaj

Yadav. Pankaj Yadav was actually Kamlesh Yadav @ Chhotu. On 09.05.2012 on the basis of production warrants both these accused persons were

taken on remand. This witness has further stated that since he was transferred, he handed over the charge of this case to the Officer-in-Charge,

Chandwa on 26.06.2012. This witness has identified Exhibit 3, Exhibit 4, Exhibit 4/1, Exhibit 5, Exhibit 6, Exhibit 7, Exhibit 8, Exhibit 9 to 9/15, Exhibit

10 and Material Exhibits I to IV.

In cross examination, this witness has stated that Raj Kumar was arrested on 24.03.2011, but, he could not be produced before the Court because

after his arrest, an encounter between police and MCC extremists took place and the accused was also sent to the hospital for treatment and after his

discharge from the hospital on 29.03.2011 he was produced. Further he has stated that he did not found any criminal history of Raj Kumar Yadav. He

has also stated that he did not investigate on the point as to how cell phone used during occurrence which was in the name of Basudeo Munda was

received by the accused.

P.W.8 is Dr. Vijay Kumar, who conducted the postmortem. He found the following antemortem injuries on the person of deceased:-

(1) Depressed fracture

(i) 1.13 c.m. x 9 c.m. involving left front perieto temporal bone with missing of bone pieces of fracture area.

(ii) 3 c.m. x 2 c.m. in posterior part of right perietal bone 3 c.m. from sagittal sature and 2 c.m. from lambiod sature

(iii) Linear fracture 9 c.m. long over lateral front of right perietal bone placed anterio posterior in middle anterior part.

(2) Firearm injury wound of entrance 1 c.m. in diameter with inverted and abraded margin over line junction of left first rib and sternum. The projectile

passes towards right scratching the sternum and breaks the right secondary in mid-calbicular line from where it reflected upward and anteriorly and

makes an exit wound measuring 3 cm x 2 cm in size ½ c.m. below the junction of right clevical and humeruose and from there a bullet has been

recovered from the surface of the body.

Doctor opined that above injuries are antemortem in nature. Fracture was caused by hard and blunt substance and firearm injury by bullet. Death was

due to head injury. Time elapsed since death was 5 days +- 2 days.

After closure of evidence, the appellant was examined under Section 313 of the Code of Criminal Procedure. He refused to lead evidence in

defence.

Counsel appearing on behalf of the appellant submits that this is a case of absolutely no evidence against this appellant. He submits that the entire

case hinges on the evidence of P.W.6, who stated that this appellant was arrested near Tori Railway Station and he disclosed the entire occurrence.

He submits that P.W.6 is a police official and any confession before the police official is not admissible in evidence. He also submits that the appellant

cannot be made accused on the basis of Call Details Report and usage of Mobile SIM Cards as there is no certification under Section 65B of the

Evidence Act, so far as electronic records are concerned and in absence of the certificate, Call Details Report and the other electronic evidence,

which the prosecution relies upon to prove the guilt of the appellant cannot be accepted. As per P.W.7, appellant was arrested at Tori Station on 24th

March, 2011, but, surprisingly, appellant was remanded on 29th March, 2011, i.e., after 5 (five) days of his arrest without there being any acceptable

explanation. As per the Investigating Officer, though a reason was tried to be projected to the effect that there was maoist encounter and appellant

was also admitted for treatment, yet no document of illness, or materials showing police encounter with extremists was ever produced by the

prosecution before the Court and in that view, his detention was also bad, and his confession during that period is not voluntary. He submits that P.W.6

has failed to identify this appellant in Court, which is evident from the deposition itself as he identified Kamlesh Yadav as Rajkumar Yadav (the

appellant).

Learned, A.P.P. appearing for the State supports the impugned judgment and submits that this appellant has given detail description as to how the

victims were kidnapped and murdered. He submits that the Call Details Report clearly suggests that this appellant and other accused persons were

involved in kidnapping and committing murder of the deceased. He submits that the evidence and the circumstances gathered will lead to the only

conclusion that this appellant is guilty of committing the offence.

We heard counsel for the appellant as also the A.P.P. appearing for the State. Admittedly, there are no eye witness in this case either on the point

of kidnapping or on the point of murder. The entire prosecution case is based on the evidence of P.W.6, who is the Bodyguard of S.D.P.O., who

stated that it is this appellant, who was arrested and thereafter confessed his guilt and on his confession incriminating materials and the dead body

were recovered. The fact of kidnapping by the appellant and others was tried to be established and proved by the prosecution with the help of Call

Details Report of the deceased person and also by the SIM Cards. These are electronic evidences. These electronic records have been relied upon by

the prosecution in absence of any certificate in terms of Section 65B of the Evidence Act. Further we find that the condition as laid down in Section

65B has not been followed by the prosecution to prove the electronic records. The Supreme Court, in the case of Anvar P.V. versus P.K. Basheer

[(2014) 10 SCC 473] has clearly laid down that only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, would the

question arise as to the genuineness thereof and in that situation, resort can be made to Section 45A of the Act. The Supreme Court has further held

that the Evidence Act does not contemplate or promote the proof of an electronic record by oral evidence, if requirement under Section 65B of the

Evidence Act are not complied with, as the laws now stand in India. In this case, we found that requirement of Section 65B of the Evidence Act have

not been complied with. Thus, the Call Details Report, the SIM Cards and the contents of the Call Details Report and the SIM Cards cannot be taken

in evidence. Further, we found that P.W.7 has identified Kamlesh Yadav as this appellant. It is not the case of the prosecution that this appellant is

also known as Kamlesh Yadav. Thus, there is doubt in the identification of the appellant also.

Further, we found that confession is before a police official and that too when he was kept in confinement for more than 24 hours and was not

produced before any Court within that time. As per P.W.7, appellant was arrested on 24th March, 2011 and admittedly the appellant was remanded

on 29th March, 2011. Explanation, which was sought to be given by the Investigating Officer, is without any supporting proof. No medical report of

this appellant was produced nor material has been produced to show that there was an encounter between the extremist organization and police,

which resulted in delay in production of appellant. P.W.6, who claims that he was present all along after the arrest of the appellant, never whispers

about any extremist attack. Thus, the nature of confession allegedly made by this appellant is doubtful. As mentioned earlier, admittedly, there is no

eye witness to the occurrence and only on the basis of Call Details Report, this appellant was made an accused in this case and his alleged confession

was extracted. Since the basis of implication of appellant, i.e., Call Details Report and other electronic evidence cannot be taken on account, we find

that there are no other materials to implicate this appellant in this case. Thus, by extending benefit of doubt, we allow this appeal and set aside the

Judgment of Conviction dated 26th August, 2016 and Order of sentence dated 29th August, 2016 passed by District & 3rd Additional Session Judge,

Latehar in Session Trial No. 146 of 2011. The appellant, who is in custody, is directed to be released and set at liberty forthwith, if his custody is not

required in any other case.

Let the Lower Court Records be transmitted to the Court concerned forthwith along with a copy of this judgment.