Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.418 of 2008 (Against the judgment of conviction and order of sentence dated 14.02.2008 passed by Additional Sessions Judge XI, Patna in Sessions Trial No. 976 of 1999) =========================================================== Rajesh Ranjan @ Pappu Yadav, son of Sri Chandra Narayan Prasad, resident of Court Station Road, P.S. K. Hat Purnea, district Purnea, Bihar, presently lodged at Jail No.3, Central Jail, Tihar, New Delhi The State of Bihar through the C.B.I. Versus .... .... Appellant/s .... .... Respondent/s With Criminal Appeal (DB) No. 240 of 2008 =========================================================== Anil Kumar Yadav, son of Hari Yadav, resident of mohalla Moranga, police station Moranga (K. Hat), district Purnea The State of Bihar through the C.B.I Versus .... .... Appellant/s .... .... Respondent/s With Criminal Appeal (DB) No. 361 of 2008 =========================================================== Rajan Tiwary, son of Vishwa Jeevan Tripathy, resident of village Sahgaura, P.S. Gagaha in the town and district of Gorakhpur (Uttar Pradesh) .... .... Appellant/s The State of Bihar through the C.B.I Versus .... .... Respondent/s =========================================================== Appearance : (In CR. APP (DB) No. 418 of 2008) For the Appellant/s : M/s. Shrikant V. Bhat, Rakesh Kumar Singh, Ravi Sharma, Rajesh Ranjan, J. John, Ajit Kumar Ojha, Nutan Mishra, Pandey Sanjay Sahay, Advocates. (In CR. APP (DB) No. 240 of 2008) For the Appellant/s : M/s. Ramakant Sharma, Sr. Advocate, Ajeet Ojha, Nutan Mishra, Advocate. (In CR. APP (DB) No. 361 of 2008) For the Appellant/s : M/s. Surendra Singh, Sr. Advocate, Dr. Abhishek Priyadarshi, Advocate (For C.B.I. in all appeals) : M/s. Rakesh Kumar Khanna, Sr. Advocate (Additional Solicitor General of India for C.B.I), Harsh Prabhakar, Anando Mukherjee, Bipin Kumar Sinha (Standing Counsel for C.B.I.), Prabhu Narayan Sharma, Sunil Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 2 Kumar Ravi, Shashi Shekhar Kumar Prasad, Advocates. (For P.W. 9 in all appeals) : M/s. Jitendra Singh, Sr. Advocate, Soni Shrivastava, Amit Prakash, Ravi Bhardwaj, Amit Pawan, Advocates. =========================================================== CORAM: HONOURABLE MR. JUSTICE V.N. SINHA And HONOURABLE MR. JUSTICE AMARESH KUMAR LAL C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE V.N. SINHA) Date: 17-05-2013 V.N. Sinha, J. These three appeals are filed against the judgment and order dated 14.02.2008 passed by Additional Sessions Judge-XI, Patna in Sessions Trial No. 976 of 1999 whereby the three appellants, namely, Rajesh Ranjan @ Pappu Yadav, Anil Kumar Yadav and Rajan Tiwari have been convicted under Section 302 read with Section 120(B), 302/34, 302/34 and 307/34 of the Indian Penal Code and Section 27 of the Arms Act respectively and sentenced to undergo rigorous imprisonment for life as also to pay fine of Rs.10,000/- each, in default of payment of fine to further undergo rigorous imprisonment for one year. Appellant Rajan Tiwary has been further directed to undergo rigorous imprisonment for seven years each for the offence under Sections 307/34 I.P.C. and 27 of the Arms Act. The sentences, however, has been directed to run concurrently. 2. Prosecution case as set out in the fardbeyan, Ext. 27 of Kalyan Chandra Sarkar, P.W. 8 recorded by Sri A.K. Jha, P.W. 56 Circle Inspector, Sadar Purnia at the residence of late Ajit Sarkar on Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 3 14.6.1998 at 17.45 hours is that informant came to the house of his brother Ajit Sarkar in the morning between 7-8 hours, was taking stroll outside the house of his brother at about 4.30 P.M.(16.30 hours) two comrades of his brother Masudan Rishi, P.W. 9 resident of Kaliganj and Lal Bahadur Rishi, P.W. 10 resident of Khakibari also joined him. While talking to the two comrades informant came ahead of Kali flour mill near the school he saw a motorcycle parked on the road. Near the motorcycle two persons (1) Jawahar Yadav, resident of Purnia and (2) Abdul Sattar, resident of Kaliganj were seen. Abdul Sattar signalled the car of his brother Ajit Sarkar coming from opposite direction to stop. The car stopped, by then (3) Diwakar Chaudhary 4) Pappu Dev came on motorcycle from the front, (5) Bipin Singh and 6-7 others variously armed also came in a car and resorted to indiscriminate firing. The two persons who signalled the car to stop also fired from rifle. Having seen the occurrence informant asked Masudan Rishi as to what is happening and raising alarm came back towards the village. The assailants escaped towards the N.H., the direction from which they had come. Meanwhile, many others also came and saw the assailants running away. Informant along with others went near the car and saw his brother Ajit Sarkar (2) Asfaq Alam of Mahmadia Estate (3) Hirendra Sharma, resident of Sausa Adampur dead, Bodyguard Ramesh Oraon seriously injured, who was taken to the hospital by the villagers. In the penultimate paragraph of Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 4 the fardbeyan informant claimed that accused named in the fardbeyan conspired to kill his brother and others as also to grievously hurt the Bodyguard. In the last paragraph of the fardbeyan informant further stated that statement given by him has been read over, read and understood by him and having found the same to be correct put his signature over the fardbeyan in Hindi. Besides the informant fardbeyan has also been signed by Lal Bahadur Oraon, P.W. 10 and Bilin Chandra Sarkar (not examined) as witness of the fact that fardbeyan has been scribed by Inspector A.K. Jha, P.W. 56 on the statement of the informant. Sri A.K. Jha, P.W. 56 having recorded the fardbeyan forwarded the fardbeyan to Officer in Charge, Khajanchi Hat P.S. to institute a case under Sections 302/34, 120(B) of the Indian Penal Code and Section 27 of the Arms Act and took up the investigation. In the light of the fardbeyan Officer in charge, K. Hat P.S. registered K. Hat P.S. Case No.230/98 dated 14.6.1998 at 10 P.M. under Sections 302/34, 120(B) I.P.C. and Sections 27 of the Arms Act, Ext.31 stating that Inspector A.K. Jha has already taken up investigation of the case under order from S.P., Purnia. A.K. Jha having recorded the fardbeyan inspected the place of occurrence and found three empty cartridges of A.K.-47, which were seized by him vide seizure list Ext. 26. The inquest of the three dead body was also made by the I.O. A.K. Jha vide Exts. Y, Y/1 and Y/2. Injured having been shifted to the hospital was Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 5 examined by Dr. R.D. Raman, P.W. 15 vide injury report, Ext. 24. In the night between 14-15.6.1998 further statement of the informant and statement of the two eye witnesses Madhusudan Rishi and Lal Bahadur Oraon was recorded reiterating the contents of the fardbeyan. The house of the accused named in fardbeyan was also raided in the same night but none was found at their residence. There was a public outcry after the incident and only upon the visit of Sri Lalu Prasad Yadav body of Ajit Sarkar was allowed to be taken for post mortem. Post mortem over the dead body of the three deceased was conducted on 15.6.1998 by Dr. B.K. Sinha, P.W. 32 vide Exts. 13, 13/1, 13/2. F.I.R. of K. Hat P.S. Case No. 230/98 was received in the court of C.J.M., Purnea on 16.6.1998 but no particular time of its dispatch by the Investigating Officer, P.W. 56 and receipt by Judicial Magistrate is recorded over the same. On 16.6.1998 the Government of Bihar issued notification no.492/H.S. dated 16.6.1998 expressing its resolve to appoint a Commission of enquiry in terms of Section 3 of the Commission of Enquiry Act, 1952 to be headed by a retired High Court judge to be nominated by Hon‘ble the Chief Justice of the Patna High Court. Kalyan Chandra Sarkar, P.W. 8 furnished on 22.6.1998 the alias name of accused no.5 of K.Hat P.S. Case No.230/98 to the I.O. of the said case along with his address, whereafter Bipin Singh was arrested and remanded to judicial custody on 23.6.1998. Smt. Madhvi Bose (Sarkar) Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 6 wife of deceased Ajit Sarkar made a written request to Hon‘ble the Chief Minister, Bihar on 1.7.1998 to transfer the investigation of K.Hat P.S. Case No.230/98 to Central Bureau of Investigation (hereinafter referred to as the C.B.I.) During investigation of K. Hat P.S. Case No. 230/98 Smt. Madhvi Sarkar, wife of the deceased Ajit Sarkar filed application under Section 452 Cr.P.C. before C.J.M., Purnea on 19.7.1998 for release of Ambassador Car bearing Registration No. BHK-1426 which was allowed under order dated 25.7.1998 and the car was handed over to Smt. Madhvi Sarkar. While the investigation of K. Hat P.S. Case No.230/98 continued State Government issued notification dated 11.8.1998 under Section 6 of the Delhi Special Police Establishment Act 1946, Ext. 3 granting its consent for investigation of K. Hat P.S. Case No.230/98 by the C.B.I. While Government of India considered the request made by the State Government under notification dated 11.8.1998, Purnia district police recorded the statement of one Sanjay Rai under Section 164 Cr.P.C. on 12.08.19998 and submitted charge sheet dated 20.9.1998 on 21.9.1998 in the court of Chief Judicial Magistrate, Purnia finding the accusation true against Bipin Singh @ Bipin Chaudhary the arrested accused and four others named in the fardbeyan showing them absconders. From perusal of charge sheet, it appears that Purnia police continued the investigation against the suspects named by Sanjay Rai in his statement recorded under Section Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 7 164 Cr.P.C. on 12.8.1998 including these three appellants. C.J.M., Purnia having perused the charge sheet took cognizance of the offences found true by Purnia police in charge sheet dated 20.9.1998 under order dated 23.9.1998 summoned the accused sent up for trial i.e. Bipin Singh, the four absconders and kept pending the supplementary investigation against 11 persons, namely, (1) Pappu Yadav (2) Harish Chaudhary (3) Amar Yadav (4) Prabhat Yadav (5) Pawan Yadav (6) Pankaj Yadav (7) Santosh Yadav (8)) Raju Yadav (9) Rajan Tiwary (10) Manoj Yadav and (11) Anil Yadav. 3. Government of India under notification dated 28.9.1998, Ext. 42 entrusted investigation of K.Hat P.S. Case No.230/98 to the C.B.I. C.B.I. having taken the investigation of K.Hat P.S. Case No.230/98 registered on 12.10.1998 First Information No. RC 12(S)/98- SIC-IV/New Delhi, Ext. 37/1 under the signature of Sri Harbansh Singh, S.P., C.B.I. (not examined) incorporating the contents of fardbeyan of K.Hat P.S. Case No.230/98. After registration of RC 12(S)/98-SIC-IV/New Delhi, Ext. 37/1 investigation of the said case was entrusted to Sri N.H. Kharayat, Dy. S.P., C.B.I., P.W. 61 and Inspector M.L. Meena, P.W. 57. The investigating team reached Purnia on 21/22.10.1998 for conducting further investigation and met D.M., S.P., Purnea and P.W. 56 who was Investigating Officer of K. Hat P.S. Case No. 230/98 and asked P.W. 56 to hand over the case record, which Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 8 was handed over to P.W. 61 on 23.10.1998. P.W. 61 recorded the statement of Ravindra Nath Singh, Kalyan Chandra Sarkar, Madhusudan Rishi and Lal Bahadur Oraon, P.Ws. 7, 8, 9 and 10 on 25.10.1998, 24.10.1998, 29.10.1998 and 28.10.1998 respectively. While making statement to the I.O. of C.B.I., P.W. 61 P.W. 8 disowned his statement recorded on 14.6.1998 at 5.45 P.M. on the basis of which fardbeyan, Ext. 27 was recorded by Inspector A.K. Jha, P.W. 56. He also disowned his re-statement made before A.K. Jha during the night between 14-15.6.1998 under Section 161 Cr.P.C. In the statement made before the I.O., C.B.I. P.W. 8 claimed that while he reached ahead of Kali Flour Mill near culvert along with P.Ws. 9, 10 he saw Ajit Sarkar coming in his white Ambassador car bearing No.BHK-1426 from a distance of 100-150 yards. He further claimed that a red bullet motorcycle having two occupants intercepted the car followed by another black Yamaha motorcycle also occupied by two persons stopped on the right side of the car. The pillion rider on the red bullet motorcycle shot at the driver of the car. The driver of bullet motorcycle kept the motorcycle in start position. The pillion rider of black Yamaha motorcycle resorted to indiscriminate firing on the person of Ajit Sarkar with a weapon which appeared like A.K. 47. The accused driving Yamaha motorcycle was firing from a small weapon. According to P.W. 8 accused persons riding the motorcycle killed the driver of the car Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 9 Hirendra Sharma, Ajit Sarkar and Asfaq Alam sitting on the rear seat of the car and injured Ramesh Oraon, Bodyguard sitting in the front next to the driver. According to P.W. 8 after the occurrence many people gathered at the place of occurrence. The dead bodies and the injured were taken to hospital in Ambulance. The dead body of Ajit Sarkar was brought to his residence in the night of 14.6.1998. He further claimed before the I.O., C.B.I. that local police arrived next day on 15.6.1998 between 10-11 A.M. to enquire from him about the incident. P.W. 8 declined to make any statement before the local police but gave the local police blank paper with his signature as per the direction of the police officer who had come to take his statement mentioning 14.6.1998 as the date beneath his signature. P.W. 8 identified his signature over the fardbeyan, Ext. 27 which was marked as Ext. 1/4. 4. P.Ws. 9, 10 stated before the I.O., C.B.I. that they had come to the residence of Ajit Sarkar on 14.6.1998 at about 4 P.M. as Sri Sarkar had called them for providing hand pump but they could not meet Sri Sarkar. P.W. 8 informed them (the witnesses) that Sri Sarkar had gone to village Tharhara for panchayati. P.Ws. 9, 10 along with P.W. 8 then decided to return to their village Rani Patra. While returning P.Ws. 8 to 10 having come ahead of Kali flour mill near culvert saw a white Ambassador car bearing No.BHK-1426 followed by red bullet motorcycle driven by accused Anil Yadav and Harish Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 10 Chaudhary sitting as pillion rider. They also saw a black Yamaha motorcycle driven by Amar Yadav over which Rajan Tiwary was the pillion rider stopping on the right side of the car. Anil Yadav kept the red bullet motorcycle in start position. The other three i.e. the driver of the black motorcycle and the pillion riders of red bullet, black motorcycle resorted to indiscriminate firing killing the driver of the car Harendra Sharma, Ajit Sarkar and Asfaq Alam sitting on the rear seat of the car as also inflicted grievous injury on the person of Ramesh Oraon, P.W. 25 Bodyguard sitting in the front next to the driver. It would appear from the statement of P.Ws. 8 to 10 made before the C.B.I. investigator that they gave a consistent description of an unknown assailant, who was later identified as Rajan Tiwary upon arrest and consequent disclosure made by him in Delhi. Having recorded the statement of P.Ws. 8, 10 the C.B.I. informed C.J.M., Purnia on 28.10.1998 about registration of RC 12(S)/98-SIC-IV/New Delhi, Ext. 37/1 incorporating the contents of the F.I.R. of K.Hat P.S. Case No.230/98 and the fact that C.B.I. is investigating the said case. Sri Abhijit Day, P.W. 28 Senior Scientific Officer-II, CFSL, C.B.I., New Delhi submitted report no.690 dated 23.12.1998, Ext. 9 with regard to three fired cartridges recovered at the spot stating that shots were fired from single 7.62 M.M. assault rifle. S.P., C.B.I. (SIC-IV), New Delhi vide his letter dated 5.1.1999 signed on 6.1.1999, Ext. 5/6 wrote to Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 11 General Manager (Vigilance), MTNL, New Delhi asking for the name of the subscriber of telephone nos. 3730767 and 3736358 including the print out of the calls made from those numbers during the period between 14.4.1998-31.12.1998. Sri K.K. Nayar, P.W. 12 S.D. Vigilance (MTNL) on 15.1.1999 submitted call records of telephone no. 0113730767 Ext. 3/4 and 0113736358 Ext. 3/5 which were installed at Delhi residence of Rajesh Ranjan. 5. Delhi police arrested Rajan Tiwary on 12.2.1999 in connection with R.K. Puram P.S. Case No.122/99 registered for the offences under Section 25 of the Arms Act. After arrest Rajan Tiwary was interrogated on 12.2.1999 by the Crime Branch in Delhi (R.K. Puram) P.S. Case No.122/99, he made disclosure pertaining to K. Hat P.S. Case No.230/98. Rajan Tiwary was produced on 13.2.1999 in the court of Sri K.S. Mohi, Metropolitan Magistrate, Patiala House in connection with R.K. Puram P.S. Case No.122/99 vide remand application dated 13.2.1999, Ext. F/4. Perusal of remand application dated 13.2.1999 filed by S.I. Palbindar Singh of Special Team, Crime Branch indicate that Rajan Tiwary was arrested from house no.14-D Firoz Sah, Road, New Delhi and after his arrest he made disclosure involving himself in murder of Ajit Sarkar, M.L.A., C.P.I. in Purnia, Bihar. He also disclosed that he has kept one pistol in House No.558-A, Sector-3, R.K. Puram, Delhi. Acting upon disclosure made by Rajan Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 12 Tiwary one 7.63 pistol make LLAMA, 15 live cartridges and other articles were seized. It also appears from Ext. F/4 that investigation of R.K. Puram P.S. Case No.122/99 is pending and Rajan Tiwary be remanded to 14 days‘ judicial custody. In the light of the prayer made in the remand application dated 13.2.1999, Ext. F/4 Rajan Tiwary was remanded to judicial custody until 26.2.1999. 6. According to learned counsel for appellant Rajan Tiwary P.W. 61 obtained illegal custody of Rajan Tiwary on 13.2.1999 from S.I. Palbindar Singh, as would appear from the following endorsement ―received accused in muffled condition with warrant‖ made by P.W. 61 in the margin of petition dated 13.2.1999, Ext. F filed by S.I. Palbindar Singh on the basis of which the Metropolitan Magistrate remanded accused Rajan Tiwary to judicial custody till 26.2.1999. It is submitted that bare perusal of Exts. F/4, F would indicate that S.I. Palbindar Singh had filed petition dated 13.2.1999 before Sri K.S. Mohi, Metropolitan Magistrate, Patiala House for obtaining judicial remand of Rajan Tiwary for 14 days i.e. until 26.2.1999 but P.W. 61 having interpolated the name of the Metropolitan Magistrate from K.S. Mohi to Duty Magistrate obtained illegal custody of Rajan Tiwary until 23.2.1999 during which period subjected him (Rajan Tiwary) to sustained interrogation by moving him from Delhi to Purnia and back. During the period of sustained interrogation search warrant was also obtained on Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 13 17.2.1999 to search the house of the appellants. From Delhi house of accused Rajesh Ranjan @ Pappu Yadav one photograph, material Ext. VII was seized vide seizure memo Ext. 39 in which appellant Rajesh Ranjan @ Pappu Yadav, his wife and child are seen with appellant Rajan Tiwary. Appellant Anil Yadav was called to C.B.I. camp office at Purnia on 17.2.1999, arrested and produced before the C.J.M., Purnea on 18.2.1999 who remanded him to C.B.I. custody for 10 days under order dated 18.2.1999 passed in K. Hat P.S. Case No.230/98. Anil Yadav made disclosures on the basis of which red bullet motorcycle was recovered from his house. He was again produced before the C.J.M., Purnea on 28.2.1999 in K. Hat P.S. Case No. 230/98 as suspect. Call details of Katihar P.C.O. booth no.34679 was obtained under Memo No.18.2.1999, Ext. 3 which was issued under the signature of Ramashray Rajak, P.W. 6 S.D. Telephone, Katihar. Appellant Rajan Tiwary also made disclosures on 18/17.2.1999 leading to recoveries vide Exts. 1/8, 1/9, 1/10. Appellant Rajan Tiwary was produced before the Chief Metropolitan Magistrate, Delhi on 22.2.1999 and a petition, Ext. 41 was filed to examine Rajan Tiwary under Section 164 Cr.P.C. Chief Metropolitan Magistrate, Delhi endorsed the said petition to Sri G.S. Saini, Metropolitan Magistrate, P.W. 59. Appellant Rajan Tiwary with muffled face was thereafter produced by I.O., P.W. 61 before Sri G.S. Saini at 12.30 P.M. who sent all the police personnel out of court Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 14 and made Rajan Tiwary to sit in his chamber. Sri Saini explained Rajan Tiwary that he is not bound to make his statement. Sri Saini also informed Rajan Tiwary that if he makes the statement the same shall be used against him as evidence. Rajan Tiwary, however, insisted to make the statement. Sri Saini thereafter gave Rajan Tiwary one hour time to think over the matter again. Sri Saini again asked Rajan Tiwary in his chamber at 1.15 P.M. whether he wants to give confessional statement. Rajan Tiwary stated that he wants to bring real culprit to book and he is making statement voluntarily. Sri Saini again warned Rajan Tiwary that he is not bound to make confessional statement and his statement shall be used as evidence against him but Rajan Tiwary persisted again for making statement. Sri Saini thereafter put following questions to Rajan Tiwary. (1) Why do you want to make confessional statement? Answer :- I want to make statement as I want to improve myself and to disclose the identity of the real culprit. (2) Whether you have been pressurized by police or C.B.I. to make statement. Answer :- I have not been pressurized by any one to record statement, which has been recorded as per my own volition. Having put the aforesaid two questions Sri Saini recorded the statement of Rajan Tiwary after writing that he is making confessional statement voluntarily without any force from any quarter in order to make clean breast. After recording the satisfaction Sri Saini recorded the disclosure statement of Rajan Tiwary, which is as follows Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 15 :- ― He is resident of Gorakhpur. M/s. Sri Prakash Shukla and Anand Pandey were the students of different colleges but they new him (Rajan Tiwary). I (Rajan Tiwary) passed intermediate and took admission in D.A.V. College, Gorakhpur. Sri Prakash Shukla and Anand Pandey were then involved in crime and had connections with him (Rajan Tiwary) as every college student desire that he has acquaintance with those who are brash, lout, bully(Dabang). M/s. Sri Prakash Shukla and Anand Pandey were Railway contractors and were in touch with Surajbhan Singh of Bihar. In 1996 M/s. Sri Prakash Shukla, Anand Pandey, Surajbhan Singh, Lalan Pandey committed murder in connection with Railway contract in which he (Rajan Tiwary) was also implicated as he had connections with them. In the last month of the year 1996 Sri Prakash Shukla, Anand Pandey, Surajbhan Singh, Lalan Pandey shot at Ex-M.L.A., Birendra Kumar Sahi, who escaped the assault. His driver, however, was killed. On 31.3.1997 aforesaid persons killed Birendra Kumar Sahi. In both the aforesaid incidents his (Rajan Tiwary) name was also involved, although he was at his village after the death of his grand-mother. In 1998 Sri Prakash Shukla, Anand Pandey, Satwant Rai and one Tiwary(Sudhari) resorted to firing in Dahleez Hotel, Lucknow from A.K.-47 in which Vivek Shukla was killed and Bhanu Mishra leader of Shiv Sena party injured. He (Rajan Tiwary) was also implicated in the said incident as he was absconder. Later Anand Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 16 Pandey, Bablu Tiwary, Hriday Chand Jaiswal snatched Esteem Car in Banaras and resorted to firing in which also, he (Rajan Tiwary) was implicated. On account of fear from the police he (Rajan Tiwary) began to reside at his maternal house in Bihar. In the meantime, Sri Prakash Shukla abducted one Rastogi from Lucknow and in the said case also he (Rajan Tiwary) was implicated. In December, 1997 Devendra Nath, M.L.A., Bihar introduced him (Rajan Tiwary) to Pappu Yadav and to assume air of importance introduced him(Rajan Tiwary) as a veteran criminal. Pappu Yadav lost the election. He (Pappu Yadav) had animosity with Ajit Sarkar as both were Mafia. In the month of May, 1998 Pappu Yadav sent him (Rajan Tiwary) along with M/s. Raju Yadav, Rajendra Yadav and Gopal Yadav to eliminate Ajit Sarkar but he(Rajan Tiwary) came back from the way and informed Pappu Yadav that he(Ajit Sarkar) did not come. On 13.6.1998 Brij Bihari Prasad was killed by Sri Prakash Shukla, Anuj Pratap Singh, Sudhir Tiwary, Lalan Singh in which case also his name (Rajan Tiwary) was involved. To avoid police action he (Rajan Tiwary) went to Purnia along with Pappu Yadav. Pappu Yadav along with his men Harish Chaudhary, Anil Yadav, Amar Yadav had already chalked out a plan for elimination of Ajit Sarkar. He (Rajan Tiwary) reached the residence of Pappu Yadav the same day. He further states that even if he had not gone on the said date Pappu Yadav had to get Ajit Sarkar eliminated on that date. Rajan Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 17 Tiwary having reached Arjun Bhawan of Pappu Yadav took bath. On that date Pappu Yadav was in Delhi. Harish Chaudhary made Rajan Tiwary speak to Pappu Yadav on telephone. Pappu Yadav asked Rajan Tiwary to eliminate Ajit Sarkar and to accompany Harish Chaudhary wherever he goes as per programme which is known to Harish Chaudhary. Four persons, namely, Rajan Tiwary, Harish Chaudhary, Anil Yadav, Amar Yadav moved in Purnia district on Bullet, Yamaha motorcycle following Ambassador car of Ajit Sarkar. When the car reached the brick soling and slowed down firing was made from A.K.- 47, .455, .48 revolver. After killing Ajeet Sarkar and others he (Rajan Tiwary) and others came to the house of Pappu Yadav. Harish Chaudhary kept the arms in a bag. After the occurrence Rajan Tiwary, Amar Yadav came to Katihar. Rajan Tiwary telephoned Pappu Yadav at Delhi from P.C.O. of Naiyar by which time Pappu Yadav was already aware of the killing and asked Rajan Tiwary to go to such place where he is asked to go by his men. Later he (Rajan Tiwary) went to Siliguri and from there to Delhi and resided in the flat of Pappu Yadav. Before coming to Delhi he (Rajan Tiwary) went to Siliguri, Darjeeling and other places. At Delhi Rajan Tiwary resided in the bungalow of Pappu Yadav at 9, Harish Chandra Mathur Lane and thereafter went to Vaishno Devi, Sri Nagar along with Pappu Yadav and his wife and thereafter resided in the flat of Pappu Yadav. Pappu Yadav had Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 18 provided Rajan Tiwary with a cell phone. Later he (Rajan Tiwary) learnt that Pappu Yadav wanted to get him eliminated in encounter in collusion with the officials of the Special Task Force of U.P. Government so that entire evidence is wiped out. Having recorded the statement Rajan Tiwary stated that he wants enquiry to be made and if he is found guilty then be punished. 7. Having recorded the confessional statement of Rajan Tiwary on 22.2.1999 his custody was given to I.O., P.W. 61 who again produced Rajan Tiwary before Chief Metropolitan Magistrate, Delhi on 23.2.1999 when he was remanded to judicial custody in Tihar Jail. Black Yamaha motorcycle bearing registration No. WB72-7109 was seized on 25.2.1999 from Jogbani P.S. vide Ext. 33/2 which was recovered in abandoned condition by Jogbani P.S. on 4.7.1998. Two steel core portions of A.K. 47 bullets were recovered under memo dated 3.3.1999, Ext. 10 from Ambassador Car bearing registration No. BHK 1426 parked at Nitu da‘s garage, Purnea. After being lodged in Tihar Jail on 23.2.1999 Rajan Tiwary filed undated application addressed to C.M.M., Delhi informing the C.M.M. that he has been implicated in a false case by the Crime Branch of Delhi Police. Perusal of the undated application indicate that while Rajan Tiwary was in police custody he was subjected to extensive beating, torture and other third degree methods as also forced to sign various blank paper, written document Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 19 and false statements. He was also not allowed to meet anyone including press person(s). Having come to jail custody he has learnt from others about his statement which the police got published in newspaper, which is wholly false. He further informed the C.M.M., Delhi that at the instance of Sri D.P. Yadav he has not committed any crime and he has no connection with the murder of Pritam Singh and that he has not taken any money from D.P. Yadav. He is being implicated in the said case at the instance of political leaders in connivance with the police. Having informed the C.M.M., Delhi about the torture in police custody and the design to implicate him in the murder of Pritam Singh Rajan Tiwary requested the C.M.M. to ensure that he is not remanded in the said case, otherwise he is likely to be eliminated in police encounter and requested the C.M.M. to take action against those who have fabricated his statement. Aforesaid application of Rajan Tiwary was forwarded to C.M.M., Delhi by the Deputy Superintendent, Central Jail No. 5, Tihar, New Delhi under letter no. 181 dated 1.3.1999. Rajan Tiwary was produced from judicial custody before Chief Metropolitan Magistrate, Delhi on 9.3.1999 when he was represented by Sri S.A. Hashmi, Advocate and according to counsel for C.B.I. a prominent criminal lawyer of Delhi, C.M.M., Delhi, however, ordered that Superintendent, Central Jail, Tihar may arrange for transfer of Rajan Tiwary to the concerned jail for his appearance before Special Judicial Magistrate, Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 20 C.B.I., Patna on or before 23.3.1999. Rajan Tiwary was transferred to Adarsh Central Jail, Beur, Patna and produced before Special Judicial Magistrate, C.B.I. Patna on 22.3.1999 and remanded to judicial custody. Report no. 141 dated 22.3.1999, Ext. 9/1 was received under signature of Sri Rup Singh, P.W. 33 to the effect that two steel core portions recovered from the car of the deceased on 3.3.1999 were fired from 7.62 M.M. assault rifle. Call records of telephone nos. 23150, 23929 and 23446 installed at Purnea residence of Rajesh Ranjan @ Pappu Yadav were received on 26.3.1999 by the C.B.I. under the signature of S.Z. Hassan, P.W. 11. Report no. 171 dated 1.4.1999, Ext. 9/2 also issued under the signature of Rup Singh, P.W. 33 was received to the effect that multiple holes found in the Ambassador Car of the deceased was caused by passage of 7.62 M.M. bullet. Having come to Patna Rajan Tiwary again filed retraction application dated 31.3.1999 and 21.4.1999 before the Special Magistrate, C.B.I., Patna. Rajan Tiwary was subjected to Test Identification Parade in Adarsh Central Jail, Beur, Patna on 1.5.1999 conducted by Sri Dharmsheel Srivastava, Judicial Magistrate, Ist Class, P.W. 17. P.W. 8 identified the suspect in 5th attempt as would appear from the memorandum dated 3.5.1999, Ext. 7 prepared by the T.I. Magistrate, P.W. 17. C.B.I. submitted charge sheet no. 01 on 10.5.1999 before the Special Magistrate, C.B.I., Patna finding the accusation made against the appellant Anil Yadav and Rajan Tiwary Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 21 to be true. Another T.I.P. was arranged on 12.5.1999 which was conducted by Sri Ravindra Patwari, Judicial Magistrate, Ist Class, P.W. 13 vide T.I. chart, Ext. 6 in which P.Ws. 9 and 10 identified Rajan Tiwary vide T.I. chart Ext. 6. Appellant Rajesh Ranjan @ Pappu Yadav was arrested on 23.5.1999. C.B.I. Magistrate took cognizance of the offence under order dated 16.7.1999 in the light of the charge sheet dated 10.5.1999 and summoned the accused to face trial. C.B.I. filed supplementary charge sheet no. 04 on 19.8.1999 finding the accusation true against appellant Rajesh Ranjan @ Pappu Yadav. I.O. C.B.I., P.W. 61 also filed separate application dated 15.9.1999 for discharge of accused sent up for trial by the Bihar police under charge sheet dated 20/21.9.1998. Special Magistrate, C.B.I., Patna under order dated 15.9.1999 discharged the accused sent up for trial by the Bihar police under charge sheet dated 20-21.9.1998. Additional Sessions Judge-XI cum C.B.I. Court, Patna under order dated 19.08.2000 framed common charges separately against the three appellants. Against Rajesh Ranjan @ Pappu Yadav charge was framed for the offences under Sections 302/34, 307/34, 120-B read with Sections 302, 307 I.P.C. and Section 27 of the Arms Act. Against Anil Yadav charge was framed under Sections 302/34, 307/34, 120-B read with 302, 307 I.P.C. and Section 27 of the Arms Act. Against Rajan Tiwary charge was framed under Sections 302/34, 307/34, 120-B read with 302, 307 I.P.C. and Section Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 22 27 of the Arms Act. The other two accused i.e. Harish Chaudhary and Amar Yadav remained absconding and their trial was segregated. Additional Sessions Judge-XI cum C.B.I. Court, Patna received on 7.1.2002 the entire case records of K. Hat P.S. Case No.230/98 from the court of C.J.M., Purnea in compliance of the order of the High Court dated 11.12.2001 passed in Cr. Rev. No.883 of 2001. 8. In support of the prosecution case following 61 witnesses have been examined. Pratap Yadav P.W. 1, Rasik Hembram P.W. 2, Priyank Mittal P.W. 3, Birendra Prasad Sharma P.W. 4, Bhuneshwar Lal Das P.W. 5, Ramashray Rajak P.W. 6, Ravindra Nath Singh, P.W. 7, Kalyan Chandra Sarkar P.W. 8, Madhusudan Rishi P.W. 9, Lal Bahadur Oraon P.W. 10, S.Z. Hassan P.W. 11, K.K. Naiyar P.W. 12, Ravindra Patwari P.W. 13, Sunil Kumar Singh P.W. 14, Domai Thakur P.W. 15, Shambhoo Prasad Mehta P.W. 16, Dharmsheel Shrivastava P.W. 17, Shailendra Kumar Jha P.W. 18, Ranu Kumar Singh P.W. 19, Subodh Yadava P.W. 20, Rajendra Prasad Goswami P.W. 21, Noor Mohammad P.W. 22, Upendra Shukla P.W. 23, R.K.P. Verma P.W. 24, Ramesh Oraon P.W. 25, Manoj Chaudhary P.W. 26, Mahesh Kumar Malkani P.W. 27, Abhijit Day P.W. 28, B.K. Bhardwaj P.W. 29, A.D.K. Dhand P.W. 30, Dr. Manindra Kumar Singh P.W. 31, Dr. Basant Kumar Sinha P.W. 32, Rup Singh P.W. 33, Rajiva Acharya P.W. 34, Arunmay Samddar P.W. 35, Dinesh Yadava P.W. 36, Uttam Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 23 Sinha P.W. 37, Swapan Kumar Chandra P.W. 38, Gurnam Singh alias Name Singh P.W. 39, Sanjay Kumar alias Sanjay Upadhya P.W. 40, Kunda Singh P.W. 41, Raju Parihar P.W. 42, Manotosh Maitro, P.W. 43, Babul Datta P.W. 44, Shivanath Ghosh P.W. 45, Dilip Kumar Singh P.W. 46, Divya Prakash P.W. 47, Pankaj Kumar Yadav P.W. 48, Chandradeep Sharma P.W. 49, Dr. R.D. Raman P.W. 50, Dr. Durga Nand Mehta P.W. 51, Om Prakash Ramnani P.W. 52, Sukhvindra Singh P.W. 53, Hansraj Pamnani P.W. 54, Pradeep Sarkar alias Fatka P.W. 55, Arvind Kumar Jha P.W. 56, M.L. Meena P.W. 57, Rajiv Chandrola P.W. 58, Gurdeep Singh Saini Saini P.W. 59, Shiva Charan P.W. 60 and Narendra Singh Kharayat P.W. 61. Sub-Inspector Palvinder Singh Chahal of Delhi Police has been examined as court witness no.1. P.Ws. 1, 2, 21, 22, 23, 24, 26, 27, 34, 35, 36, 37, 39, 40, 41, 42, 43, 45, 46, 48, 54 and 55 have been declared hostile. Priyank Mittal, P.W. 3 is the author of letter, Ext. 1/2 wherefrom it appears that Rajesh Ranjan @ Pappu Yadav was allotted quarter during the period between 17.01.1997-21.09.1998 in Harish Chandra Mathur Lane. Birendra Prasad Sharma, P.W. 4 is the brother of deceased Hirendra Sharma and has been tendered for cross-examinaton as he stated about the C.B.I. attrocity, influence and highhandedness for supporting the prosecution case. Bhuneshwar Lal Das, P.W. 5 is the author of letter dated 23.10.1998, Ext. 2 indicating election details of appellant Rajesh Ranjan
Facts
Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 24 in response to the information sought by the C.B.I. Ramashray Rajak, P.W. 6 at the relevant time served as Sub-Divisional Engineer (Telephone), Katihar who has furnished print out of Katihar telephone booth No. 34679 and telephone no. 33611, Exts. 3, 4. Ravindra Nath Singh, P.W. 7 stated that Rajesh Ranjan @ Pappu Yadav and Ajit Sarkar have political rivalry. The witness further stated that he learnt from P.W. 20 through a chit dated 8.6.1998 that Rajesh Ranjan @ Pappu Yadav hired Rajan Tiwary to kill Ajit Sarkar. Kalyan Chandra Sarkar, Madhusudan Rishi, Lal Bahadur Oraon, P.Ws. 8, 9, 10 are the eye witnesses of the occurrence. They have, however, disowned their statement given to the Inspector, A.K. Jha of Bihar (Purnea) police, P.W. 56 the scriber of fardbeyan of K. Hat P.S. Case No. 230/98 on the statement of informant, P.W. 8 and also further statement of the informant and statement of eye witnesses P.Ws. 9, 10 recorded in the night between 14-15.6.1998. S.Z. Hassan, P.W. 11 is the Divisional Engineer, Purnea who has issued print out of telephone nos. 23150, 23929 and 23446, Exts. 3/1, 3/2 and 3/3. K.K. Naiyar, P.W. 12 has issued telephone print out of Delhi telephone nos. 3730767 and 3736358, Exts. 3/4, 3/5 in response to letter from C.B.I. dated 5.1.1999. Ravindra Patwari, P.W. 13 is the then Judicial Magistrate, Patna who conducted Test Identification Parade on 12.5.1999 and submitted report dated 12.5.1999, Ext. 6 wherefrom it appears that Rajan Tiwary was Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 25 identified by P.Ws. 9, 10. Sunil Kumar Singh, P.W. 14 is the District Secretary of C.P.M. party who was present at the house of Ajit Sarkar on 14.6.1998 at 5.10 P.M. and has stated that it was Subhash Singh who came to the residence of Ajit Sarkar at about 5.10 P.M. and gave information about his killing. He is also witness to the dead body challan of Ajit Sarkar, material Ext. VI. Domai Thakur, Shambhoo Prasad Mehta, P.Ws. 15, 16 had come to Harda for marketing on 14.6.1998 and while sitting in the Tea shop had seen red bullet and black motorcycle taking rounds in the market. Later they also saw the two motorcycles following the white Ambassador car of Ajit Sarkar.
Legal Reasoning
―We are of the view that the theory that the object and form of the State acton determine the extent of protection which the aggrieved party may claim is not consistent with the constitutional scheme …….‖ and submitted that in the case of Maneka Gandhi(supra) Supreme Court has given expanded meaning to the expression deprivation of life, procedure established by law to mean that the procedure established by law for deprivation of life and liberty must not only be established by law but the procedure meant for deprivation of life and liberty must be just, fair and reasonable. It is not enough that there is in force a law which is formally enacted by a competent Legislature, which authorizes deprivation of life and liberty. The law Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 62 must be such that it is in conformity with justice, fairness and reasonableness. Confession of Rajan Tiwary if used against appellant Rajesh Ranjan @ Pappu Yadav with reference to Section 30 of the Evidence Act may amount to deprive the appellant of his life and liberty by resorting to law and procedure which is neither just nor fair nor reasonable as the contents of the confession is being used against the appellant without giving him opportunity to cross-examine Rajan Tiwary. In this connection, learned counsel pointed out that cross- examination is the most powerful engine for the discovery of truth says Loyd Paul Stryker in his book ―The Effect of Law‖. Learned counsel with reference to the memorandum recorded at the foot of the confessional statement in the light of Sub-Section (4) of Section 164 Cr. P.C. submitted that while recording the confessional statement the Magistrate forewarned the maker of the confessional statement (in the instant case Rajan Tiwary) that the statement given by him may be used as evidence against him, as such, it will be wholly unfair to use such statement against any other person including the appellant Rajesh Ranjan @ Pappu Yadav. In support of the aforesaid submission learned counsel also placed reliance on the judgment of the Supreme Court in the case of Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others (1993) 1 SCC 645, paragraphs 19, 142, 156, 158, 159, 161, 165, State of West Bengal and others Vs. Committee for Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 63 Protection of Democratic Rights, West Bengal and Others, (2010) 3 Supreme Court Cases 571, paragraphs 47 to 50, 67 and 68, Zahira Habibulla H. Sheikh and another Vs. State of Gujarat and others, (2004) 4 Supreme Court Cases 158, paragraphs 30 to 56, 61 to 64 and Rafiq Ahmad @ Rafi Vs. State of Uttar Pradesh, (2011) 8 Supreme Court Cases 300, paragraphs 35 to 38. 50. Confession of Rajan Tiwary is further bad for the failure of the prosecution to provide him the legal aid before recording his confession. According to learned counsel aforesaid view has been taken by the Division Bench of the Guahati High Court in the case of Gendra Brahma and others Vs. The State of Assam, 1981 CRI. L. J 430 and Kuthu Goala Vs. The State of Assam, 1981 CRI. L. J. 424. In this connection he further submitted with referene to paragraphs 6, 7 fo the judgment of the Supreme Court in the case of Shivappa Vs. State of Karnataka (1995) 2 SCC 76 that Magistrate recording 164 Cr.P.C. statement is required to ascertain the voluntary nature of confession. The enquiry about the voluntary nature of the confession is the most significant and important part of the duty of the Magistrate. According to learned counsel in the instant case there is no enquiry to ascertain the voluntary nature of confession. Merely recording that Rajan Tiwary wants to confess is not enquiry. Learned Magistrate recording the statement has not even asked Rajan Tiwary if C.B.I. treated him well or Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 64 under what circumstances he was arrested. No lawyer was assigned to him nor was he asked if he wanted to meet any relation or friend. According to learned counsel in order to make the confession admissible as made under Section 164 Cr.P.C. by an accused against a co-accused for applying the test of voluntariness for the purpose of Section 30 of the Evidence Act, this Court needs to test at the altar of Articles 14, 20, 21 and 22 of the Constitution of India and before testing the same it must read and satisfy the requirements as a rule of law than a rule of prudence under Section 164(2) Cr.P.C. to be explained to the accused by the Magistrate before recording the confession. i. The maker of the confession should be specifically warned before hand by the recording Magistrate the effect of making the confession that by making such a confession, both the maker and co-accused may be held guilty / liable to get applicable punishments i.e. in the nature of death, life imprisonment or lesser period with fine. ii. The maker should also be specifically warned that at later stage his retraction in any manner may or may not be believed and he may be held to be bound by it. iii.The maker be also specifically warned that the co- accused shall have no opportunity to cross examine him and the co-accused can be equally punished on the basis of his Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 65 confession and he will have no other chance to meet his confession at the stage of trial before the trial court. iv.The certified fair copy of the confession be provided to the maker of the confession immediately after recording the confession U / s 164 Cr. P.C. v.The fair certified copy of confession of the maker be also provided to the co-accused at the earliest. vi.Since the confession is hit by Section 163 Cr. P.C. and S- 24 of the Evidence Act, the detailed / maximum search enquiry be pointed out to accused and every effect of involuntary and Police Impact be taken care of. vii.After administering the aforesaid warning the Magistrate must give at least 24 hours time or more by ensuring free from police custody and only then proceed to record the confession and then the same may be allowed to be tested in the trial court and not otherwise. 51. Learned counsel further submitted without prejudiced to his aforesaid submission that it would be evidently seen that there is no sufficient and acceptable corroboration to the confession of Rajan Tiwary. He further submits that Section 164 precedes Section 30 of the Evidence Act which came into force in 1872 but Section 164 Cr.P.C. makes no reference to or envisages a confession of co-accused involving Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 66 other co-accused, as such according to learned counsel Section 164 Cr.P.C. statement should not be applicable to Section 30 of the Evidence Act nor Section 10 of the Evidence Act can be so applied readily disregarding the constitutional protection of fair procedure under Articles 14, 20, 21 and 22 of the Constitution. Learned counsel also submitted that the Supreme Court in the case of S. Arul Raja Vs. State of Tamilnadu, (2010) 8 SCC 233, paragraph 56 acquitted the accused charged with offence of conspiracy after holding that the confession of A-1 is insufficient to implicate the appellant of the conspiracy as the same is hit by Section 10 of the Evidence Act. Section 10 refers to the statement of a fellow conspirator that pertains common intention behind the act and such a statement can be used against the other conspirators. In the present case, prosecution has failed to substantiate the allegation of conspiracy against Rajesh Ranjan @ Pappu Yadav and therefore he could not be under any circumstances be called a conspirator so as to attract the provisions of Section 10 of the Evidence Act. The post arrest statement of Rajan Tiwary made on 22.2.1999 after more than six months from the date of incident is hit by Section 10 of the Evidence Act as laid down by the Supreme Court in the case of S. Arul Raja(supra). 52. It is further submitted that C.B.I. prosecution has failed to produce any cogent, trustworthy, conclusive and convincing evidence on Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 67 the point of knowledge of object of conspiracy, unlawful agreement at the behest of the three appellants in trial in the light of the law laid down by the Supreme Court in the case of State through Superintendent of Police, CBI/SIT Vs. Nalini and others, (1999) 5 SCC 253, paragraphs 581 to 583 with regard to the provisions of Section 10 and 30 of the Evidence Act. With reference to the said judgment it is pointed out that a charge of conspiracy may prejudice the accused because it has forced the accused persons into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. It is unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 68 Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time but may be reached by successive actions evidencing their joining of the conspiracy. It is said that a criminal conspiracy is a partnership in crime and that there is in each conspiracy a joint or mutual agency for the prosecution by a common plan. Thus if two or more persons entered into a conspiracy any act done by any of them pursuant to the agreement is in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by each of them. This joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co- conspirator after termination of the conspiracy. The joinder of a conspiracy by anew member does not create a new conspiracy nor does Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 69 it change the status of the other conspirators, and the mere fact that conspirators individually or in group perform different tasks to a common end does not split up a conspiracy into several different conspiracies. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. One who tacitly consents to the object of a conspiracy and goes along with other conspirators actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime. In view of the law laid down in the case of Nalini(supra) learned counsel submitted that the poor qualitity of evidence as adduced during trial do not prove charge of conspiracy conclusively beyond reasonable doubt against the appellant as the evidence on the point of unlawful agreement required under Section 120A I.P.C. is not available and Rajesh Ranjan @ Pappu Yadav is entitled to acquittal by granting him benefit of doubt. It is further submitted that perusal of Ext. 35 and evidence of P.W. 59 in paragraph 22 would indicate that page nos. 3, 4, 5 and 6 of Ext. 35 is in continuation which is statement of Rajan Tiwary recorded by P.W. 59. On page nos. 3, 4 and 5 witness states that he had taken the signature of Rajan Tiwary but perusal of the original of Ext. 35 does not indicate any signature of Rajan Tiwary on page nos. 3, 4 and 5 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 70 as stated by P.W. 59. P.W. 59 further deposed in court vide paragraph 95 that C.B.I. officials never approached him for making fair copy of statement of Rajan Tiwary for the purpose of supply to the accused persons. In this connection, learned counsel next submitted that Ext. 35 was produced in the trial court on 17.11.2005 through C.B.I. prosecutor but there is no explanation by the prosecution when, where and how prosecution received the so called confession Ext. 35 from the Magistrate and as there is no evidence of receipt of Ext. 35 it creates a serious doubt about the prosecution story. It is submitted that such objection was made during trial but was ignored by the trial court. 53. Learned counsel further submitted that both the Investigating Officer, P.Ws. 56 and 61 averred in their evidence that they prepared site plan or map of the so called place of occurrence but both the copies were not exhibited by the prosecution for the reasons best known to them. It is submitted that in the absence of the site plan as per the relevant law adverse inference has to be drawn against the prosecution and the benefit of doubt has to be given to the accused. Reliance in this connection is placed on the judgment of the Madhya Pradesh High in the case of Vijay Singh Vs. State of M. P., 2005 CRI. L. J. 299, paragraph 21. 54. Learned counsel for Rajesh Ranjan @ Pappu Yadav further submitted that evidence of prosecution witnesses are not free from Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 71 reasonable doubt, retracted confession by Rajan Tiwary is found to be tainted and not supported by independent corroboration appellant Rajesh Ranjan @ Pappu Yadav is entitled for acquittal by granting him benefit of doubt. Learned counsel also placed reliance on the judgment of the Supreme Court in the case of Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 Supreme Court 637. 55. Learned counsel for Rajesh Ranjan @ Pappu Yadav further challenged the evidence of criminal antecedent of Rajesh Ranjan @ Pappu Yadav with reference to the contents of Memo No.4204 dated 31.10.1998 on the ground that the author of the said letter i.e. the then Superintendent of Police, Purnea Sri R.S. Bhatti did not examine himself to support the contents of the letter dated 31.10.1998. In this connection, he referred to the evidence of P.W. 18 who having taken dictation from Sri Bhatti had typed the letter but stated in paragraph 4 of his evidence that he had no personal knowledge about the contents of the letter. Reliance in this connection is placed over the judgment in the case of Kamal Kanto Das Vs. State, AIR 1959 Calcutta 342(DB) and Babulal Bajpai Vs. The State AIR 1959 CRI. L. J. 693. 56. Learned counsel further submitted that the evidence of P.W. 18 is in the nature of hearsay which cannot be taken into account to decide the accusation made against Rajesh Ranjan @ Pappu Yadav. According to learned counsel the so called criminal antecedent of Rajesh Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 72 Ranjan @ Pappu Yadav has vitiated the trial because the trial court has allowed itself to be prejudiced by the so called criminal antecedent of Rajesh Ranjan @ Pappu Yadav. Reliance in this connection is placed over the judgment of the Supreme Court in the case of Kalyan Kumar Gogoi Vs. Ashutosh Agnihotri and another, (2011) 2 SCC 532, paragraphs 31, 33, 34, 35, 37 and 38. In this connection, learned counsel also pointed out that the so called criminal antecedent is irrelevant and inadmissible in view of Section 54 of the Evidence Act. 57. Learned counsel further challenged the evidence of P.Ws. 7, 20 on the ground that P.W. 7 in paragraph 1 of his evidence stated that on 8.6.1998 he had gone to Purnea Bar Library to meet a friend Advocate and there he learnt from an old acquaintance Subodh Yadav, P.W. 20 who gave him a written chit in which it was written that Rajesh Ranjan @ Pappu Yadav had called a man named Rajan Tiwary in Purnea who is about to kill M.L.A. Dilip Yadav and C.P.M. M.L.A. Ajit Sarkar. Similar statement was also given by P.W. 20 in paragraph 1 of his evidence. It is submitted that if the two statements are true P.Ws. 7, 20 were required under law to lodge F.I.R. under Section 154 Cr.P.C. against Rajesh Ranjan @ Pappu Yadav and Rajan Tiwary. Having not done so strong inference of falsehood of the said statement and chit dated 8.6.1998 has to be drawn and consequential benefit be given to the accused and suitable stricture passed as per law against P.W. 7 and also Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 73 action if any as per law be ordered against P.W. 7. According to learned counsel the chit is a document within the meaning of Section 3 of the Evidence Act. The said chit therefore, could have been proved to be admissible in evidence only in accordance with Sections 61 to 65. The evidence of said chit cannot be received/given by oral evidence under Section 59 and 60 of the Evidence Act as has been done by P.Ws. 7, 20 which is hit by Rule of hearsay evidence and is liable to be inadmissible in evidence. Reference and reliance in this connection is placed over the judgment of the Supreme Court in the case of Kalyan Kumar Gogoi Vs. Ashutosh Agnihotri (2011) 2 SCC 532 as also to the earlier judgment of the Supreme Court in the case of Ram Das Vs. State of Maharashtra, AIR 1977 SC 1164, paragraph 7, which is quoted hereunder for ready reference :- ―When a prosecution witness deposes that he had received a letter containing the alleged threat of murder given to the deceased and that letter is in possession of the Police but the prosecution did not produce the letter in Court in spite of the direction of the Court to produce it the only reasonable inference that can be drawn would be that the letter did not contain such a threat and the letter if produced would have falsified the witness to that extent.‖ 58. Learned counsel for Rajesh Ranjan @ Pappu Yadav further challenged the evidence of P.Ws. 7, 20 in paragraph 1 where they have Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 74 deposed that about 6-7 days prior to the murder they heard that Ajit Sarkar and one more person would be killed. P.Ws. 7, 20 do not mentioned the name of the person who gave this information, thus evidence of P.Ws. 7, 20 is hearsay and cannot be relied upon. The statement of P.W. 7 that he informed S.P., Purnea about the murder is also hearsay evidence as S.P., Purnea has not been examined. If evidene of P.W. 7 had any elementary truth, C.B.I. would have definitely examined the then S.P. Learned counsel submitted that non-examinaton of the then S.P., Purnea even after reference through P.W. 7 either by the C.B.I. or by the court under Section 311 Cr.P.C. makes the evidence of P.W. 7, 20 concocted, false and malicious, which is liable to be excluded and adverse inference be drawn against the prosecution. 59. Learned counsel with reference to paragraph 57 of the evidence of N.S. Kharayat, P.W. 61 submitted that Rajan Tiwary was interrogated during the period between 13.2.1999 till 22.2.1999 by four officers including P.W. 61 with reference to separate questions put by the four officers to Rajan Tiwary separately which was not filed in the court but disclosure statement made by him was filed in the court. In disclosure statement Rajan Tiwary has stated about commission of crime. In the said paragraph P.W. 61 further stated that disclosure statement is as good as confessional statement. According to learned counsel the aforesaid deposition of P.W. 61 is wholly contrary to law Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 75 and violative of Section 26 of the Evidence Act and cannot be relied upon to convict appellant Rajesh Ranjan @ Pappu Yadav. 60. Learned counsel for Rajesh Ranjan @ Pappu Yadav further submitted that on 19.8.2006 during trial Rajesh Ranjan @ Pappu Yadav made objection against Ext. 39, so called photograph, material Ext. VII and Ext. 40 but due to failure of video conference facility the trial court could not pass any order on the objecton as made by Rajesh Ranjan @ Pappu Yadav which caused serious incurable prejudice to him even then the trial court refused to permit Rajesh Ranjan @ Pappu Yadav to peruse the deposition of the witnesses before recording his statement under Setion 313 Cr.P.C. The trial court has failed to testify the genuiness of the so called photograph, material Ext. VII which was not even put to the appellant during his 313 Cr.P.C. statement when so recorded by the trial court on 16.11.2006. The prosecution filed supplementary charge sheet against Rajesh Ranjan @ Pappu Yadav and in the said charge sheet no.4/99 he had only been provided with so called black and white Xerox copy of the photo (later material Ext. VII) and other documents. The alleged photo may also have been filed in the 10.5.1999 charge sheet submitted by P.W. 61 but the appellant had no opportunity on any occasion to see the so called photograph. The objection made only on the basis of dim, black and white Xerox copy of photograph so provided to the appellant under Section 207 Cr.P.C. This exhibit in absence of its Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 76 original Ext. M/VII is like the chit dated 8.6.1998 as referred by P.W. 7 and is inadmissible in law as it is neither a primary nor a secondary evidence in law. Reliance in this connection on the judgment of the Supreme Court in the case of R.V.F. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple, JT 2005(11) SC 574 and The Roman Catholic Mission Vs. The State of Madras and Anr., AIR 1966 SC 1457. 61. Learned counsel for Rajesh Ranjan @ Pappu Yadav with reference to the judgment of the Supreme Court in the case of Arun Balakrishnan Iyer and another Vs. M/s. Soni Hospital and others, AIR 2003 Madras 389 submitted that the documents being Photostat copies could not be admitted in evidence without producing the original. The trial court has not even actually put the so called photo to the appellant during 313 statement, hence the material object, Ext. M/VII is liable to be excluded from the evidence. 62. Learned counsel for the appellant Rajesh Ranjan @ Pappu Yadav challenged the seizure of two steel core portions recovered from the car of the deceased bearing Registration No.BHK 1426 on 3.3.1999 vide seizure memo, Ext. 10 and certified to be steel core portions of bullets fired from assault rifle under report dated 1.4.1999, Ext. 9/2 on the ground that Madhvi Sarkar wife of deceased Ajit Sarkar filed petition dated 19.7.1998 before C.J.M., Purnea for return of the Car Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 77 which was considered by learned C.J.M., Purnea on 25.7.1998 and after due verification the said car was handed over to Madhvi Sarkar and at her instance the car was removed from the spot to Nitu da‘s garage for repairs where its seat, mat were removed and kept in a cornor of the garage. No bullet, bullet pieces could be found in the car seats. It was for the prosecution to have examined Madhvi Sarkar to explain the recovery of the two steel core portions from the seat of the car made on 3.3.1999. It is wholly improper for the prosecution to connect the appellants with the alleged recovery made from the seat of the car on 3.3.1999 when admittedly car was in the garage for repairs and there is neither any known effort nor any explanation from the prosecution as to why the weapon was not recovered from any of the accused persons. 63. Learned counsel for Rajesh Ranjan @ Pappu Yadav further submitted that while recording his statement under Section 313 Cr.P.C. there has been non-compliance of the provision as Rajesh Ranjan @ Pappu Yadav was not asked to explain the circumstances appearing against him in the prosecution evidence. He was also not questioned generally on the case which was put up against him by the prosecution witnesses. In this connection, it is pointed out that the photograph of Rajan Tiwary and Rajesh Ranjan @ Pappu Yadav, material Ext. VII and confession of Rajan Tiwary made before Delhi Court, Ext. 35 ought to have been physically shown to Rajesh Ranjan @ Pappu Yadav during Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 78 his examination. In this connection, it is submitted that the records of 313 Cr.P.C. examination do not show that Ext. 35 and the so called photograph, material Ext. VII was ever shown physically to Rajesh Ranjan @ Pappu Yadav and his explanation taken, the wording of questions put by the court on this point and sequence shows beyond doubt that confession, Ext. 35 or photograph were not physically shown to Rajesh Ranjan @ Pappu Yadav and others which fact is also confirmed by the lawyer who appeared on behalf of appellant in the trial court. In absence of physical showing and explanation taken the photograph and confession cannot be used against any of the appellant. In case of Ext. 35 it was particularly necessary for the prosecutor to have shown the appellant Rajan Tiwary his alleged signature and asked whether the signature was his. Additionally Rajan Tiwary shoud have been asked to explain whether he accepts or not the evidence of Metropolitan Magistrate Sri Saini, P.W. 59 that Sri Saini recorded his statement Ext. 35 in his own handwriting. The handwriting of Sri Saini, P.W. 59 as well as Rajan Tiwary ought to have been shown to Rajan Tiwary. The examination has to proceed separately and topic wise about each material circumstance in terms of paragraph 8 in the case of Ajmer Singh Vs The State of Punjab (AIR 1953 SC 76), paragraph 14 of Lallu Manjhi and another Vs. State of Jharkhand (AIR 2003 SC 854) as also paragraph 1 in Machander Vs. State of Hyderabad Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 79 (AIR 1955 SC 792). In this connection, learned counsel further submitted that any violation of fair procedure is per se violative of Article 21 of the Constitution which goes to the root and vitiates the trial and cannot be redeemed by invoking Section 463, 465 Cr.P.C. 64. Learned counsel with reference to the judgment in the case of Machander(supra) submitted that Supreme Court acquitted the accused for non-compliance of Section 313 Cr.P.C. observing each material point must be put to the accused. Learned counsel for Rajesh Ranjan @ Pappu Yadav submitted that Rajesh Ranjan @ Pappu Yadav had objected the so called material Ext. VII during the trial on 5.11.2003, the trial court had then observed that the objection with regard to material Ext. VII will be decided at the end of the trial but the trial court neither rendered any finding on the genuineness of material Ext. VII nor did the trial court questioned Rajesh Ranjan @ Pappu Yadav about material Ext. VII in his examination under Section 313 Cr.P.C. on 16.11.2006. It is further submitted that during trial on 8.11.2006 Rajesh Ranjan @ Pappu Yadav requested the trial court to allow him to peruse the statement of the witnesses for one week but he trial court not only denied such opportunity to Rajesh Ranjan @ Pappu Yadav but also deprived him of the opportunity to consult his lawyer on the questionnaire which was put to him for examination under Section 313 Cr.P.C. as copy of the questionnaire was not given to him Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 80 sufficiently in advance to consult his lawyer contrary to the dictim laid down by Supreme Court in Basavaraj R. Patil and others Vs. State of Karnataka and others, 2001 SCC (Crl.) 87, paragraph 33. 65. Learned counsel for appellant Rajesh Ranjan @ Pappu Yadav with reference to the judgment in State of Assam Vs. Nand Kumar Singh, 1973 Cr. L.J. 521, paragraph 29 submitted that the three appellants were not put any specific question either on the confession dated 22.2.1999 or on the retraction made by Rajan Tiwary dated 1.3.1999, 30.3.1999 and 1.5.1999 which is contrary to the provision contained in Section 313 Cr.P.C. and placing reliance on the judgment of the Supreme Court in Tara Singh Vs. The State, AIR 1951 SC 441, paragraph 24, Director of Customs, Akhnoor, Jammu and Kashmir Vs. Yaspal and another, (2009) 4 SCC 769, Bharat Swain Vs. The State, 1967 CRI. L. J. 1427, paragraph 9, Shaikh Maqsood Vs. State of Maharashtra, (2009) 6 SCC 583, paragraph 9, Ashok Kumar Sharma Vs. State of Rajasthan, (2013) 2 SCC 67 and Kalpnath Rai Vs. State (through C.B.I. (1997) 8 SCC 732 submitted that for failure to follow the mandatory provision the appellants deserve acquittal. 66. Learned counsel for appellant Rajesh Ranjan @ Pappu Yadav placing reliance on the judgment of the Supreme Court in the case of John Pandian Vs. State represented by Inspector of Police, Tamilnadu, (2010) 14 SCC 129, paragraphs 89 to 91 and 94 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 81 submitted that neither the print outs nor the evidence of Ramashray Rajak and Om Prakash Ramnani, P.Ws. 6, 52 identified either the caller or the called or the contents of conversation, as such, according to learned counsel the same cannot be a evidence to establish conspiracy between Rajesh Ranjan @ Pappu Yadav and others. 67. Learned counsel for Rajesh Ranjan @ Pappu Yadav with reference to the evidence of P.W. 61 paragraph 108 submitted that Ravindra Nath Singh, P.W. 7 had not made statement before P.W. 61 during his examination under Section 161 Cr.P.C. that Rajesh Ranjan @ Pappu Yadav during election speech gave threat to the deceased Ajit Sarkar as has been claimed by P.W. 7 in paragraph 1 of his evidence. The threat does not even remotely indicate that P.W. 7 heard the threat himself. P.W. 7 having not made such statement before the I.O. his evidence about the threat made in the court cannot be relied upon. Similarly evidene of Lal Bahadur Oraon, P.W. 10 about the threat extended by Rajesh Ranjan @ Pappu Yadav to deceased Ajit Sarkar in his election speech is also not to be relied upon as the said witness had not stated such fact before the I.O., P.W. 61 vide paragraph 107. 68. Learned counsel for Rajesh Ranjan @ Pappu Yadav with reference to the evidence of P.W. 7 pages 33, 34 of the paper book, P.W. 8 paragraph 4 page 42 submitted that landlords were angry about 1992 directives of C.P.I.(M) party whereunder Ajit Sarkar snatched 25000 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 82 acres of land from 20-25 big landlords and distributed the same to landless which caused anger amongst the big landlords who were dispossessed from their land resulting in law and order problem. In this connection reliance has also been placed on the evidence of Ramdeo Prasad and Shyamanand Yadav, D.Ws. 16, 17. According to counsel for appellant the landlords whose lands were grabbed even on the day of occurrence had immediate provocation and strongest motive to kill Ajit Sarkar. According to learned counsel it can never be the case of the prosecution nor is it the case of the prosecution that only Rajesh Ranjan @ Pappu Yadav had motive to kill Ajit Sarkar. In this connetion, learned counsel placed reliance on the observations of Harold Laski in Grammer of Politics ―A man may forgive the murder of his parents…..but he will never forgive the confiscation of his property‖. It is submitted that in the light of the aforesaid evidence of P.Ws. 7, 8 P.Ws. 56, 61 both were required to investigate the rift beween landlord and deceased Ajit Sarkar but such aspect was never investigated which would be evident from paragraphs 216, 235, 237, 238, 242, 243 and 245 of the evidence of P.W. 61. 69. Learned counsel for Rajesh Ranjan @ Pappu Yadav with reference to the evidence of Dr. R.D. Raman, P.W. 50 paragraph 9 submitted that Dr. Raman is totally independent of both Rajesh Ranjan @ Pappu Yadav and Ajit Sarkar as he is full time medical practitioner Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 83 who has stated in the aforesaid paragraph that in his capacity as a resident of Purnea he says that there was no ill-relation between Rajesh Ranjan @ Pappu Yadav and Ajit Sarkar. Similar is the evidence of Pankaj Kumar Yadav, P.W. 48 in paragraphs 67, 68, 69, 70. Learned counsel with reference to evidence of Ramesh Oraon, P.W. 25 submitted that P.W. 25 is the Bodygurad of Ajit Sarkar whose loyalty to Ajit Sarkar was never challenged, even P.W. 25 says that relation between Ajit Sarkar and Rajesh Ranjan @ Pappu Yadav was cordial. This prosecution witness has not been declared hostile by C.B.I., as such, his testimony about the cordial relation between Rajesh Ranjan @ Pappu Yadav and Ajit Sarkar is required to be accepted. 70. Learned counsel for Rajesh Ranjan @ Pappu Yadav submitted that defence has made application to the trial court for site inspection which was opposed by the C.B.I. According to learned counsel it was necessary for the trial court to visit the place of occurrence. The trial court‘s rejection of defence plea for inspection of place of occurrence vide its order dated 24.7.2007 has also prejudiced the case of the defence which the prosecution ought to have conceded. This was so because the court ought to have seen whether the witnesses could see the murder from distance narrated by P.Ws. 8 to 10. The court could have appreciated how close P.W. 19 Ranu Kumar Singh was to the place of occurrence. Scene of offence is an objective fact. Not going Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 84 to the scene of offence has deprived the court of an objective assessment of P.Ws. 8 to 10 and 19 which has caused failure of justice. There is no question of the court either believing or disbelieving the scene of occurrence. In this connection reference is also made to the Memoirs of M. Hidyatullah in ―My Own Bosswell‖ (2002 reprint) to emphasise the importance of site inspection. Site inspection referred to in the Memoirs was done by the Division Bench of the Nagpur High Court comprising Mr. Justice Hemeon and Mr. Justice M. Hidyatullah. The description of the site inspection as narrated in the memoirs is quoted hereinbelow for ready reference :- ―There were a few sensational cases. Only one needs mention. An Advocate was charged with murder. A dead body was found in his house buried in a temporary and hastily constructed grave. This was the body of his friend whom he had invited by letter, as he explained, to borrow some money. The letter was a fact. The case of the Advocate was that he had suddenly to leave Nagpur and did not meet him. His friend had duly come and was met by one of his relations. They had taken drugs and the friend died of heart failure. To avoid scandal, the body was concealed till the lawyer returned but by then it was too late as discovery had taken place. The cause of death was not established even in an elaborate autopsy and there was no suggestion of foul play. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 85 The conviction was based on the evidence of a servant who claimed to have seen the victim done to death, through a hole in the wall. Hemeon and I went to the place and looked through the hole and mapped the area visible. We agreed as to that and we got the lawyers also to verify our map. The hole was so small and so located that almost nothing of the floor area could be seen. We saw the walls and no murder was committed against the wall. The boy had deposed that the victim was strangled on the floor. The Trial Judge had believed this child witness without visiting the room. We disbelieved him and there was no other evidnce of murder except the suspicious fact of secret burial, for which also there was some explanation. This gave force to the alibi, which was strong.‖ 71. Learned counsel for Rajesh Ranjan @ Pappu Yadav further submitted that C.B.I. procured witnesses and established the same with reference to the evidence of P.W. 10 paragraph 5 where P.W. 10 stated that his address was given to the C.B.I. by the C.P.M. party leader whose name he does not know. He was brought before C.B.I. authorities by the party worker Narendra Singh. In the light of the aforesaid evidence it is submitted that witnesses did not come to the C.B.I. camp office for recording their statement on their own and in the process C.B.I. omitted to examine natural witness like Subhash Singh who had not only reached Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 86 the place of occurrence but was the first who informed the wife of the deceased about the occurrence and thereafter took steps to shift the injured Bodyguard Ramesh Oraon, P.W. 25 to the hospital in Tempo. Learned counsel also submitted that there has been inordinate delay in recording the 161 Cr.P.C. statement by C.B.I. as the statement of eye witnesses i.e. P.Ws. 8 to 10 was recorded on 24.10.1998, 29.10.1998 and 28.10.1998 respectively i.e. beyond four months of the occurrence without there being any explanation from P.W. 8 as to why he did not complain before the C.J.M., Purnea about the factum of his signature having been taken by P.W. 56 on blank paper as also failure of P.W. 56 to record the statement of eye witnesses i.e. 8, 9 and 10. In this connection, learned counsel submitted that Smt. Madhvi Sarkar having filed petition dated 19.7.1998 before the C.J.M. for release of the car of the deceased on which C.J.M., Purnea passed order dated 25.7.1998 after due verification, there is no plausible reason for P.Ws. 8 to 10 not to inform C.J.M., Purnea about the conduct of P.W. 56 that he had obtained signature of P.Ws. 8 and 10 on blank paper at the time of cremation of Ajit Sarkar but is neither examining the eye witnesses nor taking action against the accused persons. 72. Learned counsel for Rajesh Ranjan @ Pappu Yadav submitted that in the given facts and evidence of the present case there is suspicion against Rajesh Ranjan @ Pappu Yadav but suspicion cannot Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 87 be a substitute for unimpeachable evidence and unless unimpeachable evidence is available conviction cannot be maintained. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Sarwan Singh Rattan Singh (supra), relevant paragraphs whereof is quoted hereinbelow for ready reference :- ―It is no doubt a matter of regret that a foul cold-blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that, considered as a whole, the prosecution story may be true; but between ‗may be true‘ and ‗must be true‘ there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence.‖ 73. In this connection, learned counsel also placed reliance on the judgment of the Supreme Court in the case of Narendra Singh Vs. State of M.P., (2004) 10 SCC 699 and Dilip and another Vs. State of M.P., (2007) 1 SCC 450. 74. Learned counsel for Rajesh Ranjan @ Pappu Yadav further submitted that in the instant trial waters of admissible and of inadmissible evidence have mixed which can neither be separated nor filtered, hence liable to be rejected in its entirety. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 88 75. Leaned counsel further submitted that even if P.Ws. 8 to 10 are believed for sake of argument there is hardly sufficient, acceptable and admissible evidence of unlawful agreement under Section 120A of the Penal Code between Rajesh Ranjan @ Pappu Yadav and the other accused persons for murder of Ajit Sarkar and others to uphold the conviction of Rajesh Ranjan @ Pappu Yadav under Section 120B of the Penal Code. 76. Learned counsel for Rajesh Ranjan @ Pappu Yadav next submitted that the circumstances as relied upon by the prosecution for corroboration are not such which should persuade this Court to infer guilt of Rajesh Ranjan @ Pappu Yadav on cogent and firmly established true fact. The circumstances, are neither unerringly pointing towards the guilt of Rajesh Ranjan @ Pappu Yadav nor are such forming chain so complete that there is not escape from the conclusion that within all human probability the conspiracy to kill Ajit Sarkar was hatched by Rajesh Ranjan @ Pappu Yadav and none else. The corroborative circumstance in order to sustain conviction is neither complete nor capable of explanation of any other hypothesis than the guilt of Rajesh Ranjan @ Pappu Yadav. The corroborative evidence is neither consistent with his guilt nor inconsistent with his innocence, hence, there is hardly any cogent and reliable corroboration of the confession dated 22.2.1999 which could lend support to the contents of the confession. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 89 According to learned counsel Rajesh Ranjan @ Pappu Yadav in his statement under Section 313 Cr.P.C. has explained his defence which is consistent, natural and probable and is worth credence and belief. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Hanumant Govind Nargunkar Vs. State of M.P., AIR 1952 SC 343, paragraph 10, Gambhir Vs. State of Maharashtra, AIR 1982 SC 1157, Vidya Sagar Vs. State of U.P., AIR 1977 SC 1116, paragraph 11, State of Goa Vs. Sanjay Thakran, (2007) 3 SCC 755 and Munna Kumar Upadhyay @ Munna Upadhyaya Vs. State of Andhra Pradesh , (2012) 6 SCC 174. 77. It is further submitted on behalf of Rajesh Ranjan @ Pappu Yadav that the trial court has held the appellant Rajesh Ranjan @ Pappu Yadav as sole conspirator under Section 120B of the Penal Code. There is no appeal filed against the said finding of the judgment and order by the State of Bihar through C.B.I. In such circumstances, this Court may accept the said finding as final and binding upon the respondent State of Bihar through C.B.I. There cannot be any alteration of the said finding by this Court at this stage in absence of any appeal made by the State through C.B.I. challenging the said finding. 78. Learned counsel for Rajesh Ranjan @ Pappu Yadav further submitted that there is no evidence to connect Rajesh Ranjan @ Pappu Yadav with the conspiracy hatched to terminate Ajit Sarkar. In this Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 90 connection it is pointed out that once inadmissible evidence like Ext. 35, material Ext. VII, criminal antecedent etc. is excluded there is nothing in law to connect Rajesh Ranjan @ Pappu Yadav with the offence of conspiracy. Learned counsel further pointed out that the prejudice in the mind of the trial court is inconsistent with the concept of fair trial of the accused. According to learned counsel learned trial court with no justification allowed itself to be influenced by utterly inadmissible evidence like disclosure statement, Ext. 35, photograph material Ext. VII criminal antecedent etc. The effect of such blatant illegality is that the entire trial is in violation of Article 21 of the Constitution and the learned trial court has certainly violated the mandate of just, fair and reasonable trial enshrined in Articles 14, 21, 22 of the Constitution. In this connection, reliance is placed on the judgment of the Supreme Court in the case of Ashok Kumar Sharma Vs. State of Rajasthan, 2013(2) SCC 67 where the Supreme Court dealing with the right of the accused under Section 50 of the N.D.P.S. Act of being searched in presence of Gazetted Officer/Magistrate observed that non-compliane of Section 50 of the N.D.P.S. Act would vitiate the entire trial. It is submitted that in the instant case failure of P.W. 59 to observe the safeguards under Sub- sections (2)(3) of Section 164 Cr.P.C. as also Rule 7 of the Delhi High Court Rules before recording the statement of Rajan Tiwary has vitiated the entire trial proceeding taken thereafter. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 91 79. Learned counsel for Rajesh Ranjan @ Pappu Yadav further assailed the evidence of P.W. 8 in the light of his deposition in paragraph 2, pages 39, 40(top) where he categorically stated that the evidence which he recorded in court was not recorded by him before the I.O. of the local police under Section 161 Cr.P.C. He further assailed his evidence in the light of the contents of paragraph 7 at page 44 of the paper book where P.W. 8 stated that he had not given any statement before the local police on 14.6.1998 that he is an eye witness of the occurrence. He had also not given such statement on 15.6.1998 but had put signature over blank paper. Learned counsel assailed the evidence of P.W. 8 with reference to the contents of paragraph 7 of his evidence at page 45 where the witness categorically denied the suggestion that he had made any statement before Sri A.K. Jha Circle Inspector, Purnea on 14.6.1998 at 17.45 hours that he had come to the house of his brother in the morning between 7-8 A.M. and he was taking walk at about 4.30 P.M. when Madhusudan Rishi resident of Kaliganj and Lal Bahadur Rishi of Khakibari came. Witness also denied other suggestion made in this regard. 80. Learned counsel for Rajesh Ranjan @ Pappu Yadav further challenged the evidence of P.W. 8 with reference to his deposition in paragraph 11 at page 49(bottom) where witness admitted that he had not shown the place from where he had seen the occurrence to any one. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 92 Learned counsel further impeached the evidence of P.W. 8 with referene to his evidence at page 57(top), 61, 62 and 68 that the witnesses himself has admitted in paragraph 58(bottom) that he did not inform the wife and son of the deceased about the occurrence. 81. Learned counsel for Rajesh Ranjan @ Pappu Yadav challenged the evidence of P.W. 9 with reference to his evidence in paragraph 5 at page 76 that he reached the place of occurrence soon after the assailants made their escape and then he touched the deceased to confirm his death. 82. Learned counsel also assailed the evidence of P.W. 10 with reference to his deposition in paragraph 6(bottom) that he and others had not disclosed about the occurrence to the local police including superior authorities, though they had come to the place of occurrence within 15- 20 minutes of the occurrence as also along with the Hon‘ble Chief Minister. Learned counsel further assailed the evidence of P.W. 10 with reference to the contents of paragraph 10 at page 106, 107 where the witness has admitted that he, Kalyan Chandra Sarkar and Madhusudan Rishi were the first person who arrived at the place of occurrence and after they raised alarm others came, yet the witness and his friends did not choose to disclose the identify of the accused persons to any one on the date of occurrence. Learned counsel submitted that if the witnesses had not chosen to disclose about the occurrence to the local police Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 93 within reasonable time of the occurrence and had made their statement for the first time after four months of the occurrence before the C.B.I., such statement cannot be relied upon. 83. Learned counsel for Rajesh Ranjan @ Pappu Yadav finally submitted that many prosecution witnesses have turned hostile as the witnesses have not supported the genesis of prosecution case and as per settled law by the Supreme Court in Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi), AIR 2005 SC 2804, paragraphs 34, 35 and 42 the appellant may be permitted to rely on the evidence of such hostile witnesses for grant of benefit of doubt. Submission on behalf of C.B.I. 84. Learned Additional Solicitor General of India appearing for the C.B.I. submitted that the Government of India issued notification dated 28.9.1998, Ext. 42 entrusting the investigation of K.Hat P.S. Case No.230/98 to the C.B.I. In the light of the notification dated 28.9.1998, for administrative reasons, Superintendent of Police, C.B.I. on 12.10.1998 registered RC 12(S)/98/SIC-IV/New Delhi, Ext. 31/1 incorporating the contents of the fardbeyan of K.Hat P.S. Case No.230/98. Having registered RC 12(S)/98/SIC-IV/New Delhi the same was forwarded to the competent court and was received in the court of Special Magistrate, C.B.I., Patna on 29.10.1998, meanwhile investigating team of C.B.I. having reached Purnia on 22.10.1998 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 94 informed the C.J.M., Purnia about the registration of RC 12(S)/98/SIC- IV/New Delhi and thereafter recorded the statement of M/s. Kalyan Chandra Sarkar, Madhusudan Rishi, Lal Bahudar Oraon, P.Ws. 8, 9 and 10 on 24.10.1998, 29.10.1998 and 28.10.1998 respectively. Delhi police arrested Rajan Tiwary on 12.2.1999 and produced him before Sri K.S. Mohi, Metropolitan Magistrate, Tis Hazari on 13.2.1999. Sri Mohi remanded Rajan Tiwary to judicial custody for 14 days i.e. until 26.2.1999 in connection with R.K. Puram P.S. Case No. 122/99, which is evident from application dated 13.2.1999 filed by S.I. Palvinder Singh, Special Team Crime Branch, Ext. F/4. Counsel for C.B.I., however, submitted that before Rajan Tiwary could be lodged in judicial custody in Tihar Jail pursuant to order dated 13.2.1999 passed by Sri Mohi another order was passed on the same day i.e. 13.2.1999 (Second Saturday) by Duty Magistrate on the basis of disclosure made by Rajan Tiwary to Delhi Police authorizing his custody to the C.B.I. for 10 days i.e. until 23.2.1999. In the light of the subsequent order of the Duty Magistrate I.O. of the present case, P.W. 61 received Rajan Tiwary in muffled condition with warrant and made such endorsement on the petition dated 13.2.1999 filed by S.I. Palvinder Singh, which is evident from Ext. F. 85. For better appreciation of the aforesaid submission this Court directed the learned counsel for C.B.I. to refer to the subsequent Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 95 order dated 13.2.1999 passed by the Duty Magistrate authorizing C.B.I. custody of Rajan Tiwary until 23.2.1999 from the records. Counsel then submitted that the subsequent order passed by the Duty Magistrate on 13.2.1999 may be available in the records of R.K. Puram P.S. Case No.122/99. To verify the aforesaid submission of the learned counsel this Court under order dated 12.2.2013 called for the records of R.K. Puram P.S. Case No.122/99, which was received in this Court on 18.2/2013. With the assistance of the counsel for the parties the records of R.K. Puram P.S. Case No.122/99 was examined but neither the original nor the copy of subsequent order dated 13.2.1999 passed by the Duty Magistrate authorizing the C.B.I. custody of Rajan Tiwary until 23.2.1999 was found. Learned counsel then submitted that copy of subsequent order dated 13.2.1999 may not be available in the records of R.K. Puram P.S. Case No.122/99 but copy thereof having been filed by Rajan Tiwary himself as Annexure-8 series to the supplementary affidavit filed in Cr. Misc. No.10646/2003(Rajan Tiwary Vs. State) there should not be any dispute about the existence of the said order. 86. Learned counsel for C.B.I. further submitted that C.B.I. having obtained possession of Rajan Tiwary on 13.2.1999 interrogated Rajan Tiwary who made disclosure statement vide memo dated 17.2.1999, Ext. 43/1 pointing out the manner, place of occurrence and the P.C.O. from which he informed Rajesh Ranjan @ Pappu Yadav Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 96 about the killing of Ajit Sarkar. On the same day Sri N.H. Kharaiyat, P.W. 61 searched Premise No.173, North Avenue, New Delhi in occupation of Sri Rajesh Ranjan @ Pappu Yadav in presence of independent witnesses Sri A.K. Dhand, Assistant M/O Industry, Department of Industrial Policy and Promotion, Udyog Bhawan, New Delhi and Sri B.K. Bhardwaz, U.D.C., M/O Entry, Department of Industrial Policy and Promotion, Udyog Bhawan, New Delhi and recovered letter head pad of Sri Rajesh Ranjan @ Pappu Yadav, Member of Parliament, four sheets blank and one coloured photograph of Mr. and Mrs. Rajesh Ranjan @ Pappu Yadav, son Sarthak and one more person vide search list, Ext. 1/18, material Ext. VIII. To confirm the call referred to in the disclosure statement of Rajan Tiwary call details, Ext. 3 series were obtained. 87. Appellant Anil Kumar Yadav was arrested by the C.B.I. on 17.2.1999 and taken on police remand for 10 days, made disclosure statement vide memo dated 18.2.1999, Ext. 43 on the basis of which red bullet motorcycle used in the crime was also recovered on the same day i.e. 18.2.1999 vide pointing out cum recovery and seizure memo dated 18.2.1999, Ext. 40. In the light of the disclosure statement made by Rajan Tiwary before the C.B.I. on 17.2.1999 I.O. of C.B.I. filed petition dated 22.2.1999 Ext. 41 before the Chief Metropolitan Magistrate, Delhi so as to enable Rajan Tiwary to record his statement under Section 164 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 97 Cr.P.C. Perusal of petition dated 22.2.1999 Ext. 41 indicates that C.B.I. arrested accused Rajan Tiwary who played main role in the crime and unearthed the actual criminal conspiracy attributing the role of other accused persons. Statement of Rajan Tiwary was recorded by the C.B.I. whereunder he supported the case of C.B.I. and made statement against other accused divulging their conspiracy and involvement of other important suspect who are having good social status in the society. In the light of the request made in petition dated 22.2.1999, C.M.M., Delhi made over the petition to Sri Gurdeep Singh Saini, Metropolitan Magistrate under his endorsement dated 22.2.1999 itself, Ext. 36. Having received petition dated 22.2.1999 Sri Gurdeep Singh Saini Metropolitan Magistrate considered the petition and directed that the accused Rajan Tiwary be again produced before him on the same day at 12.30 P.M. In the light of the aforesaid order of the Metropolitan Magistrate Rajan Tiwary was again produced before Sri Gurdeep Singh Saini Metropolitan Magistrate at 12.30 P.M. when learned Magistrate made further endorsement on the petition, which is marked as Ext. 36/1 and proceeded to record following order :- 22.02.99 12.30 PM ―An application for recording of statement of accused Rajan Tiwari s/o Vishwa Jeevan Ram Tiwari was moved before Ld. CMM and the same was assigned to me. The accused Rajan Tiwari was produced in muffled face before me. I have sent all the police Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 98 persons out of the Court and the accused is made to sit in my chamber. I have explained to the accused that he is not bound to make his statement. He is also told that if he makes the statement it can be used against him as evidence. He insisted on making the statement. I have given him time of one hour to think over it again.‖ Sd/- MM 22.02.1999 88. In the light of the order passed by the Metropolitan Magistrate at 12.30 P.M. he again interacted with Rajan Tiwary at 1.15 P.M. and recorded the following order as also his satisfaction about the voluntary nature of the statement which Rajan Tiwary was proposing to make before him. 1.15 PM ― Present accused Rajan Tiwari in my chamber. I have again asked the accused that whether he wants to give confessional statement. He stated that he want to bring real culprit to book and I am making statement voluntarily. I have again warned him that he is not bound to make confessional statement and his statement can be used as evidence against him, but he persisted in making the statement. I have questioned him as follows. Ques :- Why do you want to make confessional statement? Ans :- eSa viuk c;ku blfy, nsuk pkgrk gwa fd eSa vc lq/kjuk pkgrk gwa vkSj vlyh vknfe;ksa dks lkeus ykuk pkgrk gwaA Ques :- Whether you have been pressurized by Police or CBI to make statement? Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 99 Ans :- eq>s fdlh us Hkh ncko ugha MkykA eSa viuh ethZ ls c;ku nsuk pkgrk gwaA RO & AC Sd/- Sd/- MM Delhi. Rajan Tiwari 22.02.99 I am satisfied that the accused Rajan Tiwari is making confessional statement voluntarily without any force from any quarter in order to make clean breast. Let his statement u/s 164 Cr.P.C. be recorded. Disclosure of Sh. Rajan Tiwary s/o Sh. Vishwa Jeevan Tiwari age-26 years R/o village Saharsa, P.O. Saharsa, PS Gagha, Distt. Gorakhpur, UP. Without oath. 89. The signature of Rajan Tiwary over the order sheet of the learned Metropolitan Magistrate and the last page of the confessional statement has been marked as Exts. 34 and 34/1. Confessional statement of Rajan Tiwary has been marked as Ext. 35. Perusal of confessional statement of Rajan Tiwary Ext. 35 indicates that the same has been recorded in four pages but Rajan Tiwary put his signature only on the 4th page, which has been marked as Ext. 34/1. 90. Rajan Tiwary was put on T.I. Parade on 1.5.1999 in Beur Jail, Patna and was identified by K.C. Sarkar, P.W. 8 but before proceedings could be completed disturbance was created and the Magistrate submitted report dated 3.5.1999, Ext. 7. Another T.I. Parade Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 100 was arranged on 12.5.1999 when Rajan Tiwary was identified by P.Ws. 9 and 10 vide T.I. Chart, Ext. 6. C.B.I. having completed investigation in RC 12(S)/98 submitted charge sheet no.01 dated 10.5.1999 indicating Rajan Tiwary and Anil Kumar Yadav as the accused in judicial custody and sent up for trial. The other three i.e. Rajesh Ranjan @ Pappu Yadav, Harish Chaudhary and Amar Yadav were shown as absconder. Rajesh Ranjan @ Pappu Yadav was arrested on 23.5.1999 and supplementary charge sheet no.04 dated 19.8.1999 was submitted naming Rajesh Ranjan @ Pappu Yadav in column no.1 of the supplementary charge sheet, Harish Chaudhary and Amar Yadav were again shown as absconder. 91. After issue of notification of the Government of India dated 28.9.1998 and registration of RC12(S)/98/SIC-IV/New Delhi by the C.B.I. on 12.10.1998 but before submission of charge sheet dated 10.5.1999, supplementary charge sheet dated 19.8.1999 appellant Rajesh Ranjan @ Pappu Yadav filed Cr. Writ Petition No.258 of 1999 before Delhi High Court on 26.3.1999 praying inter alia to quash the notification of the Government of India dated 28.9.1998 entrusting investigation of Case No.230/98 P.S. K. Hat, Purnia to C.B.I. including investigation conducted by C.B.I. after registration of RC 12(S)/98/SIC- IV/New Delhi on the ground that after submission of charge sheet in F.I.R. No.230/98, P.S. K. Hat, Purnia, Bihar cognizance of the offence Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 101 found true during investigation by the Purnia police having already been taken by the competent court i.e. C.J.M., Purnia, C.B.I. had no jurisdiction to investigate de novo. It is submitted by the counsel for the C.B.I. that from perusal of writ petition, paragraph 4 and the counter affidavit filed on behalf of the respondents it would appear that appellant Rajesh Ranjan @ Pappu Yadav was aware of the disclosure statement, confession recorded under Section 164 Cr.P.C. by Rajan Tiwary and Anil Yadav.
Arguments
Dharmsheel Shrivastava, P.W. 17 is another Judicial Magistrate who conducted second Test Identification Parade on 1.5.1999 and submitted report dated 3.5.1999, Ext. 7. Shailendra Kumar Jha, P.W. 18 is the Crime Reader in the office of Superintendent of Police, Purnea who has proved criminal case history of Rajesh Ranjan @ Pappu Yadav dated 31.10.1998 issued under the signature of the then S.P., Purnea Sri R.S. Bhatti, Exts. 5/1, 5/2 and 5/3. Ranu Kumar Singh, P.W. 19 has his house 10-12 steps away from the place of occurrence. Having heard the sound of firing he came to the place of occurrence and is also witness to the inquest report of Ajit Sarkar. He has further stated that Kalyan Chandra Sarkar arrived 45 minutes after the occurrence and asked the persons present at the place of occurrence as to who is the assailant of his Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 26 brother and others. Subodh Yadava, P.W. 20 also heard that assailant has been hired to kill Ajit Sarkar and Dilip Yadav. Ramesh Oraon, P.W. 25 is the injured Bodyguard of Ajit Sarkar. Abhijit Day, P.W. 28 is the Head of C.F.S.L., New Delhi who submitted report Ext. 9 dated 3.3.1999 about the three fired/empty cartridges recovered from the place of occurrence. B.K. Bhardwaz, P.W. 29 has put his signature over material exhibit VII, photograph of Rajesh Ranjan @ Pappu Yadav, his wife, child and Rajan Tiwary which has been marked as Ext. 1/19, 1/20. A.D.K. Anand, P.W. 30 is the witness of seizure of the photograph, material Ext. VII. Dr. Manindra Kumar Singh, P.W. 31 is the surgeon who has put his signature over the bed head ticket of injured Ramesh Oraon, P.W. 25. Dr. Basant Kumar Sinha, P.W. 32 is the doctor who conducted post mortem on the dead body of the deceased. Rup Singh, P.W. 33 is the Principal Scientific Officer who inspected the car of the deceased on 3.3.1999 and recovered two steel core portions which is disintegrated bullet part from assault rifle of 7.62 M.M. Swapan Kumar Chandra, P.W. 38 is the S.I. of West Bengal police posted at Silliguri who recorded his statement under Section 164 Cr.P.C. to disprove the alibi of Harish Chaudhary. Babul Datta, P.W. 44 the Assistant Manager, Hotel Shardhanjali has been examined to prove the guest register of Hotel Shardhanjali, column nos. 1 and 11, which is in his writing, Exts. 22, 22/1 and hotel bill book, Ext. 23. Divya Prakash, P.W. 47 is the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 27 owner of a press and social worker. Chandradeep Sharma, P.W. 49 is the record keeper of Sadar Hospital, Purnea who has proved documents to suggest that Ramesh Oraon, P.W. 25 was treated in O.P.D. of the hospital, Ext. 24. Dr. R.D. Raman, P.W. 50 is the doctor who examined injured Ramesh Oraon. Dr. Durga Nand Mehta, P.W. 51 also attended on injured Ramesh Oraon, P.W. 25. Om Prakash Ramnani, P.W. 52 is the husband of the owner of Katihar P.C.O. No.34679. Sukhvindra Singh, P.W. 53 at the releant time was serving as Inspector in Delhi Police in whose presence R.K. Puram P.S. Case No.122/99 was registered on 12.2.1999 on the basis of the disclosure statement made by Rajan Tiwary which was recorded by Sub-Inspector Palvinder Singh in his presence. Arbind Kumar Jha, P.W. 56 is the Investigating Officer of K.Hat P.S. Case No.230/98 who recorded the fardbeyan of P.W. 8 on the basis of which K.Hat P.S. Case No.230/98 has been registered and submitted charge sheet dated 20-21.9.1998 in the court of C.J.M., Purnia. M.L. Meena, P.W. 57 is the Inspector of C.B.I. who assisted I.O. of the case, P.W. 61. Rajiv Chandrola, P.W. 58 is the Inspector of C.B.I. who also assisted the I.O. P.W. 61. Gurdeep Singh Saini Saini, P.W. 59 is the Metropolitan Magistrate, Delhi who recorded the confessional statement of Rajan Tiwary. Shiva Charan, P.W. 60 is the Metropolitan Magistrate, Delhi who proved the signature of Sri Guaba, C.M.M., Delhi, Ext. 36/2. Narendra Singh Khairayat, P.W. 61 is the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 28 Investigating Officer of the case. 9. Besides the aforesaid oral evidence prosecution has produced the following documentary evidence. Ext. 1 series are signatures on various documents. Exts. 2 series, 5, 29 series are different letters. Ext. 3 series are telephone print out indicating that call of long duration made in the morning of 14.6.1998 from Delhi residence of appellant Rajesh Ranjan @ Pappu Yadav to his Purnia residence. It was further pointed out with reference to Ext. 3 series that on the date of occurrence at 18 hour 16 minute 48 second call of 42 second duration and at 18 hour 18 minute and 16 second call of 32 second duration was made from Katihar P.C.O. telephone no.34679 to Delhi residence of appellant Rajesh Ranjan on telephone nos. 3730767 subscribed in the name of appellant Rajesh Ranjan and on telephone no.3736358 subscribed in the name of his wife. On the same day at 20 hour 08 minute 41 second call from same P.C.O. of one minute 26 second was made to the Gorakhpur residence of appellant Rajan Tiwary on telephone no.0551322035. Ext. 4 is telephone bill. Ext. 6 is T.I. Chart of appellant Rajan Tiwary. Ext. 7 is T.I. report. Ext. 8, 42 are the notification dated 11.8.1998, 28.9.1998 issued by the Government of Bihar and Union of India granting consent and taking over investigation of K. Hat P.S. Case No.230/98. Ext. 9 series are reports. Ext. 10 is memo. Ext. 11 is bed head ticket of injured Ramesh Oraon, P.W. 25. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 29 Ext. 12/1 is endorsement on letter. Ext. 13 series are post mortem reports of the three deceased. Ext. 14 is writing and signature on the back of photograph. Exts. 15 and 15/1 are writing and signature. Ext. 16 is memo of arrest. Exts. 17, 18 are bond and bail bond. Ext. 19 is prosecution report. Ext. 20 is order sheet. Ext. 21 is statement under Section 164 Cr.P.C. Ext. 22 series are entry in register. Ext. 23 is hotel bill. Ext. 24 is out patient department (emergency register) indicating injuries on the person of Ramesh Oraon, P.W. 25. Ext. 25 is admission register. Ext. 26 is seizure list. Ext. 27 is fardbeyan. Ext. 28 is application. Exts. 30, 30/1 are writing and signature on supplementary case diary. Ext. 31 is formal F.I.R. Ext. 32, 33 series are seizure memo. Exts. 34 and 34/1 are signature of accused Rajan Tiwary on his confessional statement. Ext. 35 is confessional statement of accused Rajan Tiwary. Ext. 36 series are endorsement of Chief Metropolitan Magistrate and Metropolitan Magistrate, Delhi on the application filed by I.O. for recording the confessional statement of Rajan Tiwary. Exts. 37, 37/1 are signatures on F.I.R., Ext. 38 series are inquest reports. Ext. 39 is search list. Ext. 40 is recovery and seizure memo. Ext. 41 is application. Exts. 43, 43/1 are disclosure statements of appellants Anil Kumar Yadav and Rajan Tiwary. 10. Besides the aforesaid documentary evidence the prosecution has also produced the following material exhibits. Ext. I, I/2 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 30 are cartridges. Ext. II is box. Ext. II/1 is sealed cloth. Exts. III to III/3 are envelopes. Exts. IV, IV/1 are sealed covers. Ext. V is hotel register. Exts. VI, VI/2 are dead body challan. Ext. VII is photograph. 11. The defence of the appellants is complete denial but they have examined 27 witnesses, namely, Prabhat Prasad Yadav D.W. 1, Amod Kumar Chaudhary D.W. 2, Jagat Jaiswal D.W. 3 Sanjay Kumar Yadava D.W. 4, Ajay Kumar D.W. 5, Shankar Yadava D.W. 6, Pawan Kumar D.W. 7, Raj Kumar Jaiswal D.W. 8, Ziaul Haq D.W. 9, Md. Nazmul Hoda D.W. 10, Arvind Prasad Yadava D.W. 11, Mani Bhushan Prasad D.W. 12, Prabhash Chandra Yadava D.W. 13, Ram Charitra Yadava D.W. 14, Md. Afaq Alam D.W. 15, Ramdeo Prasad D.W. 16, Shyamanand Yadava D.W. 17, Santosh Kumar D.W. 18, Lal Bahadur Singh D.W. 19, Kripanath Das D.W. 20, Madhumita Devi D.W. 21, Naresh Bishwas D.W. 22, Sanjay Kumar Yadava D.W. 23, Kashinath Gupta D.W. 24, Jaikant Paswan D.W. 25, Rajiv Kumar Chaudhary D.W.26 and Bhai Shamsuddin, D.W. 27. 12. Besides examining defence witnesses they have also produced the following documents. Ext. A is prescription. Ext. B is signature of Bilin Chand Sarkar on fardbeyan of K. Hat P.S. Case No.230/98. Exts. C to C/5 are information slip. Ext. D is endorsement of C.M.M. Ext. E is certified copy of F.I.R. of K. Nagar P.S. Case No.260/92. Ext. E/1 is certified copy of F.I.R. of K. Nagar P.S. Case Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 31 No. 46/93. Ext. F is certified copy of petition for judicial remand of Rajan Tiwari. Exts. F/1, F/2, F/3 and F/4 are certified copies of petitions for judicial remand of Rajan Tiwari. Ext. G is survey map of village Maranga. Ext. H is certified copy of order sheet of R.K. Puram P.S. Case No.122/99. Submission on behalf of appellant Rajan Tiwary 13. Learned counsel for appellant Rajan Tiwary submitted that the three eye witnesses, namely, P.W. 8, 9, 10 cannot be relied upon as they are the residents of village Rani Patra, which is 7 kilometers away from the place of occurrence reached the place of occurrence 45 minutes after the occurrence, which would appear from the evidence of Ranu Kumar Singh, P.W. 19 paragraph 8 and injured Ramesh Oraon, P.W. 25 paragraphs 8, 9 and 10 that he remained at the place of occurrence for about half an hour after the occurrence and the eye witnesses were not seen by him. P.W. 25 has further stated in paragraph 2 that Subhash Singh was first to arrive at the place of occurrence and that Subhash Singh rescued him from the car. Aforesaid statement of the injured P.W. 25 contradicts the eye witnesses that they were the first to reach the place of occurrence. Sunil Kumar Singh, P.W. 14 has also corroborated Ramesh Oraon, P.W. 25 about the presence of Subhash Singh and has stated that it was Subhash Singh who gave information at the house of Ajit Sarkar about the murder at 5 P.M. According to Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 32 learned counsel for appellant Rajan Tiwary the evidence of P.Ws. 19, 25, 14 have not been challenged by the prosecution, their evidence is binding on the prosecution. Reliance in this connection was placed on the judgment of the Supreme Court in the case of Javed Masood and Another Vs. State of Rajasthan, AIR 2010 Supreme Court 979, paragraphs 9, 10, 13 to 16. 14. Learned counsel for the appellant Rajan Tiwary further submitted that from paragraph 8 of the evidence of Ranu Kumar Singh, P.W. 19, it would appear that when Kalyan Chandra Sarkar, P.W. 8 came to the place of occurrence after 45 minutes of the occurrence he asked as to who killed his brother and others. It is submitted with reference to the observation of the Supreme Court in the case of Govind Narain and Another Vs. State of Rajasthan, AIR 1993 Supreme Court 2457, paragraph 6 that as P.W. 8 reached the place of occurrence after 45 minutes of the occurrence and he was making enquiry as to who killed his brother, his evidence is fit to be discarded in view of the testimony of independent witness Ranu Kumar Singh, P.W. 19 paragraph 8. 15. It is further pointed out by learned counsel for appellant Rajan Tiwary that Ranu Kumar Singh, P.W. 19 and Ramesh Oraon, P.W. 25 have stated in their evidence that Ramesh Oraon P.W. 25 was sent to hospital in a tempo but as per the testimony of the three eye Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 33 witnesses, namely, P.Ws. 8, 9, 10 P.W. 25 was sent to the hospital in Ambulance along with the three dead bodies which is indicative of the fact that eye witnesses were not present when Ramesh Oraon P.W. 25 was sent to the hospital. In this connection, reliance is also placed on the evidence of Madhumita Devi, D.W. 21 daughter of Kalyan Chandra Sarkar, P.W. 8 as she has stated in her evidence that the three eye witnesses were present at Rani Patra when news of murder of her uncle reached the village. It is also submitted that no reason has been attributed to her by the prosecution for giving false evidence. 16. Learned counsel for appellant Rajan Tiwary further submitted that Kalyan Chandra Sarkar P.W. 8 has falsely denied that he lodged the fardbeyan, Ext. 27 and made case diary statements. Lodging of the fardbeyan Ext. 27 and further statements made by him has been established by Sri A.K.Jha, P.W. 56 in examination in chief. The evidence of P.W. 56 has not been challenged by the prosecution nor has any suggestion been made to him that he fabricated the fardbeyan. Moreover, Kalyan Chandra Sarkar having admitted his signature on the fardbeyan the evidence of Sri A.K. Jha is required to be accepted as earlier to making his statement before the I.O., C.B.I. on 24.10.1998 disowning his statement made before Inspector A.K. Jha, P.W. 56 on 14.6.1998 that A.K. Jha took his signature on blank paper on 15.6.1998, he never made complaint before any authority that his signature was Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 34 taken by Inspector A.K. Jha, P.W. 56 on blank paper on 15.6.1998 with date 14.6.1998 beneath his signature. The contents of the fardbeyan are detailed and it is not possible to believe that the Investigating Officer imagined those details and prepared Ext. 27. Reliance in this connection, is placed on the judgment of the Supreme Court in the case of Sarwan Singh and Others Vs. State of Punjab, (1976) 4 SCC 369, paragraph 8 at page 375, Kanti Kumari Roy Vs. Suresh Kumar Roy and others, AIR 1990 Supreme Court 1631, paragraph 6 and Khujji @ Surendra Tiwari Vs. State of Madhya Pradesh, (1991) 3 SCC 627, paragraph 6. 17. Learned counsel for appellant Rajan Tiwary further submitted that K.C. Sarkar, P.W. 8 has been extensively contradicted by his own statement on the basis of which fardbeyan, Ext. 27 and further statement under Section 161 Cr.P.C. was recorded by Inspector A.K. Jha, P.W. 56. In the fardbeyan and further statement P.W. 8 has stated that assailants on the motorcycle were Jawahar Yadav, Abdul Sattar, Diwakar Choudhary and Pappu Dev. Bipin Singh and 6-7 others came in a car. In court he has excluded the assailant named in the fardbeyan and substituted them by Anil Yadav, Harish Choudhary, Amar Yadav and Rajan Tiwary. Change in the name of the accused persons in the court cannot be permitted where witness makes two inconsistent statements in their evidence either at one stage or at two stages. The Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 35 testimony of such witness becomes unreliable and unworthy of credence. In absence of special circumstances no conviction can be based on the evidence of witness who has given inconsistent evidence. Reliance in this connection, is placed on the judgment of the Supreme Court in the case of Hallu and Others Vs. State of Madhya Pradesh, (1974) 4 SCC 300, paragraphs 6, 7, State of Haryana Vs. Gurdial Singh and Another, (1974) 4 SCC 494, paragraph 21, Suraj Mal Vs. The State (Delhi Administration), AIR 1979 Supreme Court 1408 and Ahmed Bin Salam Vs. State of Andhra Pradesh, AIR 1999 Supreme Court 1617, paragraph 5. 18. From the deposition of P.W. 8, it further appears that he has falsely denied that Purnia police did not come to the place of occurrence on 14.6.1998. He is also not to be believed because he did not inform the local police that he is an eye witness but disclosed such fact to the C.B.I. vide paragraph 7 of his evidence when C.B.I. came to investigate the case four months later. P.W. 8 is further not to be believed as he did not disclose about the incident either to the widow of Ajit Sarkar or his son, as would appear from paragraph 15 of his evidence. P.W. 8 is also not to be believed because he never lodged any complaint prior to his deposition that police has wrongly recorded his fardbeyan and case diary statements vide paragraph 7 of his deposition. P.W. 8 also did not make any complaint that Bipin Singh has wrongly Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 36 been arrested vide paragraph 2 of his evidence. It is submitted with reference to aforesaid infirmities in the evidence of P.W. 8 that P.W. 8 being the brother of the deceased, although had no motive to implicate the appellants but was persuaded to give evidence in support of the case implicating the appellants but such evidence cannot be accepted on account of infirmities noted above. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Rambilas and others Vs. State of Madhya Pradesh, AIR 1997 Supreme Court 3954. 19. Madhusudan Rishi, P.W. 9 is also not fit to be relied as he being member of C.P.M. District Committee is highly interested in success of the prosecution. He is also not to be relied as he knew Anil Yadav, Harish Chaudhary, Amar Yadav by face and name prior to the occurrence but his failure to disclose their names to P.W. 8 renders the prosecution story false. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Hari Nath and another Vs. State of U.P., AIR 1988 Supreme Court 345. P.W. 9 is also not to be relied as he did not disclose the local police that he is an eye witness but disclosed such fact after four months to the C.B.I. He also stands extensively contradicted in the light of his case diary statements recorded by A.K. Jha, P.W. 56. Even though P.W. 9 stated that he informed his party workers regarding identity of the assailants but not a Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 37 single party worker has been examined to corroborate him. On the contrary I.O., C.B.I., P.W. 61 stated that he could not locate any party worker to whom P.W. 9 had disclosed the name of the assailants. Aforesaid false evidence given by P.W. 9 shakes the foundation of prosecution case. Reliance in this connection has been placed on the judgment of the Supreme Court in the case of Sohan and another Vs. State of Haryana and another, AIR 2001 Supreme Court 1380, paragraph 28. P.W. 9 is also not to be relied as he stands contradicted by injured P.W. 25 as according to P.W. 9 injured was sent to hospital in Ambulance, which is incorrect in view of the evidence of the injured that he went to hospital in Tempo. Lastly it is submitted that P.W. 9 having not disclosed the local police soon after the incident that he is an eye witness no reliance can be placed on his evidence. Reliance in this connection, has been placed on the judgment of the Supreme Court in the case of State of Orissa Vs. Mr. Brahmananda Nanda, AIR 1976 Supreme Court 2488, Bachhu Narain Singh Vs. Naresh Yadav and others, AIR 2004 Supreme Court 3055 and Ramreddy Rajeshkhanna Reddy and Anr. Vs. State of Andhra Pradesh, AIR 2006 Supreme Court 1656, paragraphs 4, 5 and 6. 20. Learned counsel for Rajan Tiwary also submitted that evidence of Lal Bahadur Oraon, P.W. 10 is also not fit to be relied as he is resident of village Rani Patra and knew the deceased Ajit Sarkar since Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 38 the childhood, which is evident from paragraph 2 of his evidence, as such, highly interested in success of the prosecution. P.W. 10 is further not to be relied as having counter-signed the fardbeyan, Ext. 27 on 14.6.1998 falsely denied such fact. P.W. 10 also new Anil Yadav, Amar Yadav and Harish Chaudhary from before but did not disclose their names to P.W. 8 vide paragraph 10 of the evidence of P.W. 8. He also did not disclose the names of the assailants to the wife of the deceased vide paragraph 10 of the evidence of P.W. 10. He also did not inform local police that he is an eye witness vide paragraph 6 and 7 of his evidence. He disclosed the fact that he is an eye witness to the occurrence one month after the incident vide paragraph 2 of his evidence. In paragraph 6 of his evidence he has stated that about 100- 150 shots were fired and that each deceased sustained about 50-60 bullet injuries, which stands contradicted by the evidence of the doctor conducting autopsy on the person of the three deceased, Dr. Basant Kumar Singh, P.W. 32 found Ajit Sarkar sustained two gun shot injuries. Asfaq Alam and Harendra Sharma sustained one gun shot injury each. It is submitted that P.W. 10 is also fit to be rejected for the reasons which have been indicated above while dealing with the evidence of P.W. 9. 21. Learned counsel for the appellant Rajan Tiwary further challenged the confessional statement made by Rajan Tiwary, Ext. 35 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 39 and submitted that I.O., P.W. 61 illegally took accused Rajan Tiwary in his custody on 13.2.1999 and kept him in wrongful confinement till 22.2.1999. During the aforesaid period Rajan Tiwary was kept incommunicado and subjected to sustained interrogation by a team of four officers, vide paragraph 57 of the evidence of I.O., P.W. 61. According to learned counsel there is no judicial order from any court directing police remand of Rajan Tiwary to P.W. 61. Realizing this illegality P.W. 61 subsequently committed forgery with judicial record, Ext. F/4 and made interpolation thereupon by writing ―received accused in muffled condition with warrant‖ and thereby committed interpolation in the judicial record, Ext. F by interpolating Ext. F/4. Reference in this connection, is made to the observations of the trial court in paragraph 41 of the impugned judgment. It is further submitted that Exts. F, F/4 were marked as defence exhibit without objection from the prosecution. 22. Learned counsel for appellant Rajan Tiwary further submitted that Rajan Tiwary remained in police custody for 9 days from 13.2.1999 till 21.2.1999 and produced in the court of Sri Saini on 22.2.1999 at 12.30 P.M. whereafter Sri Saini allowed Rajan Tiwary 45 minutes to reflect if he wishes to make confession. According to learned counsel grant of 45 minutes time to reflect is contrary to the dictum laid down by the Constitution Bench of the Apex Court. It is further submitted that confession recorded by Rajan Tiwary is further bad for Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 40 the reason that Sri Saini failed to inform Rajan Tiwary that he is a Magistrate. The confession of Rajan Tiwary is also bad for the reason that Sri Saini did not inform Rajan Tiwary that he would not be handed over to the C.B.I. if he did not make the confession. In fact, Rajan Tiwary was handed over to the C.B.I. after the confession vide evidence of I.O., P.W. 61 paragraph 176 and paragraph 25 of the evidence of P.W. 59 Magistrate recording the confession. 23. According to learned counsel for appellant Rajan Tiwary the confession is further bad for the reason that Sri Saini, P.W. 59 neither enquired from Rajan Tiwary whether he has been subjected to third degree by the police nor checked his body. The medical examination certificate of Rajan Tiwary dated 21, 22.2.1999 was not produced vide paragraph 172, 171 of the evidence of I.O., P.W. 61. 24. Learned counsel further submitted that from perusal of the order passed by Sri Saini, P.W. 59 on 22.2.1999 at 12.30 P.M. and 1.15 P.M. when Rajan Tiwary was produced before him for recording his statement, it would appear that P.W. 59 recorded his statement as Rajan Tiwary was insisting on making the confession, which is sure proof that he was coerced. 25. It is further submitted that three important pages of the confession i.e. page nos. 3, 4 and 5 has not been signed by Rajan Tiwary, as such, confession is not in accordance with law and fit to be Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 41 ignored. 26. Learned counsel also submitted that confession of Rajan Tiwary is not voluntary as before recording his confession Rajan Tiwary was identified by I.O., P.W. 61 who was standing outside the court room while Rajan Tiwary was recording his confession and after the confession was recorded Rajan Tiwary was handed over to I.O., which is evident from the evidence of P.W. 59, paragraphs 17, 29, 32. In view of the submissions noted in paragraphs 22 above, it is submitted that Rajan Tiwary having not been allowed at least 24 hours time for reflection the confession recorded by him on 22.2.1999 at his insistence is wholly involuntary and fit to be rejected in view of the judgment of the Supreme Court in the case of Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569, paragraph 390 at page 727 and Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 Supreme Court 637, paragraph 10. 27. It is further submitted that prolonged police (C.B.I.) custody is conclusive proof of coercion. Reference in this connection is made to the judgment of the Supreme Court in the case of Nathu Vs. State of Uttar Pradesh, AIR 1956 Supreme Court 56, paragraph 6. 28. Counsel for appellant Rajan Tiwary further submitted that confession recorded by Rajan Tiwary cannot be relied upon as his confession was recorded without observing the safeguard provided in Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 42 Sub-sections (2), (3) of Section 164 Cr.P.C. and Rule 7 of the Delhi High Court Rules. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, AIR 2011 Supreme Court 1436, paragraphs 23 to 33, Dhanajaya Reddy Vs. State of Karnataka, (2001) 4 SCC 9, paragraphs 17 to 24. With reference to the judgment of the Supreme Court in the case of Dhanajaya Reddy(supra) and Rabindra Kumar Pal (supra) learned counsel for Rajan Tiwary submitted that the first precaution which the Judicial Magistrate recording 164 Cr.P.C. statement of the accused is required to take is to prevent forcible extraction of confession by the prosecuting agency by ensuring that the safeguards provided under Sub-Clauses (2), (3) and (4) of Section 164 Cr.P.C. are observed not only in form but in substance. Before proceeding to record the confessional statement a searching enquiry must be made by the Magistrate from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody to ensure that there is no scope for doubt of any sort of extraneous influence, proceeding from a source interested in the prosecution still lurking in the mind of an accused. The Magistrate in particular should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial, even if he contrives subsequently to retract the confession. The accused willing Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 43 to record confession should be granted sufficient time for reflection. During the time of reflection the accused should be completely out of police influence. The Judicial Officer who is entrusted with the duty of recording confession must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him. He should also be assured of protection from any sort of apprehended torture or pressure from the police, in case, he declines to make a confessional statement and be given the assurance that even if he declined to make the confession he shall not be remanded to police custody. Judicial confession should be recorded in question and answer form, which is the manner indicated in the criminal court rules. At the time of recording of the statement of the accused no policeman or officer shall remain present in the court/chamber where the statement is recorded. Having recorded the confession signature of the officer and the accused be obtained on the confession as per the requirement of Sub-Section-(5) of Section 281 referred to in Sub-Clause-(4) of Section 164 Cr.P.C. It is also submitted that the failure of the Magistrate to put searching questions from which he could ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same. It is submitted that in the instant case, Sri Saini, P.W. 59 before recording the confession of Rajan Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 44 Tiwary did not ascertain from him the custody from which he has been produced and the treatment which he has been receiving in such custody. He also did not inform Rajan Tiwary that in case he does not wish to make the confession he shall not be remanded to the custody of C.B.I. from which he has been produced. It is also submitted that after recording of the confession of Rajan Tiwary his signature was not obtained on pages 3 to 5 of the confession as is required under Sub- Section (5) of Section 281 Cr.P.C. referred to in Sub-Section (4) of Section 164 Cr.P.C. thereby the contents of pages 3 to 5 of the confession, Ext. 35 cannot be relied upon by the prosecution in support of the charges levelled against him. Having recorded the confession Rajan Tiwary was again remanded to police (C.B.I.) custody, which is clear violation of Rule 7 of the Delhi High Court Rules and for such violation also confession is fit to be rejected. 29. Learned counsel for appellant Rajan Tiwary has further submitted that the confession recorded by Rajan Tiwary, Ext. 35 is not a confession at all. In case, this Court concludes that confession of Rajan Tiwary is a confession the same having been retracted under undated petition addressed to Chief Metropolitan Magistrate, Delhi and forwarded by the office of the Superintendent, Central Jail No.5, Tihar, New Delhi to ADJ cum Chief Metropolitan Magistrate, Tis Hazari Court, Delhi under Memo No. 181 dated 1.3.1999, petition dated Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 45 30.3.1999, another petition addressed to Special Magistrate, C.B.I., Patna and forwarded by Superintendent, Beur Jail, Patna under Memo No. 1016 dated 30.3.1999, petition dated 21.4.1999 filed through lawyer giving reference of retraction dated 30.3.1999, the contents of the confession, Ext. 35 is required to be corroborated with reference to the evidence led by the prosecution. 30. Learned counsel for appellant Rajan Tiwary has further submitted that telephone print outs, Ext. 3 series cannot be relied upon as evidence in support of the prosecution case. Information given under the print out has not been signed by a person occupying a responsible official position in relation to the operation of the telephone exchange or the management of the telephone company, as is required under Section 65-B of the Evidence Act. It is further submitted that the telephone print out having been issued under the signature of Ramashray Rajak, Sub- Divisional Officer, Phones, Katihar, P.W. 6 and K.K. Naiyar, Sub- Divisional Officer, Vigilance, MTNL, P.W. 12 the same cannot be relied upon as P.Ws. 6, 12 are neither the Incharge of telephone exchange from which the print outs have been issued nor they have any control over the management of the telephone company. 31. Learned counsel for appellant Rajan Tiwary has finally submitted that C.B.I. investigation in the present case is wholly without jurisdiction as after submission of the charge sheet dated 20/21.9.1998 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 46 by Purnia police in K. Hat P.S. Case No. 230/98 registered for the offence of murder of Ajit Sarkar and others, C.J.M., Purnia had taken cognizance under order dated 23.9.1998 for the offences referred to in the charge sheet and summoned the accused sent up for trial, matter being subjudice de novo investigation by the C.B.I. could not have been made without the permission of C.J.M., Purnia. In support of the aforesaid plea learned counsel for appellant Rajan Tiwary relied on the judgment of the Supreme Court in the case of T.T. Antony Vs. State of Kerala and others, AIR 2001 SC 2637, Rama Chaudhary Vs. State of Bihar, AIR 2009 SC 2308 and Vinay Teyagi Vs. Irshad Ali @ Deepak and others., 2013 CRI.L.J. 754. Submission on behalf of appellant Anil Kr. Yadav 32. Learned counsel for appellant Anil Kumar Yadav has adopted the submissions made on behalf of appellant Rajan Tiwary. He has further submitted that Anil Yadav is not named as accused in the fardbeyan/ F.I.R. of K. Hat P.S. Case No.230/98 Exts. 27, 31 which has been recorded/ registered on the basis of the statement of P.W. 8. It is further stated that Anil Yadav is also not named in F.I.R. of R.C. Case No.12(S)/98 dated 12.10.1998. Counsel for Anil Yadav further submitted that the informant, P.W. 8 did name Anil Yadav in his statement recorded by I.O. of C.B.I., P.W. 61 as also in court that the appellant Anil Yadav and others including the two appellants came to Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 47 the place of occurrence and kept the red bullet motorcycle in start position to facilitate the escape of the assailants. Learned counsel has further submitted that appellant Anil Yadav has neither motive nor mens rea to kill Ajit Sarkar and others, as such, the evidence recorded by P.W. 8 in court is fit to be rejected as such evidence was never recorded by him before the I.O. of State police and statement to the contrary made after four months of the occurrence cannot be relied upon. With reference to the evidence of Ranu Kumar Singh, P.W. 19 learned counsel submitted that P.W. 19 has stated in paragraph 2 of his cross- examination that Kalyan Chand Sarkar, P.W. 8 came to the place of occurrence after 45 minutes of his arrival and was loudly asking as to who killed his brother. Witness in the same paragraph states that injured Ramesh Oraon, P.W. 25 was sent to the hospital in Tempo contrary to the claim of P.W. 8. 33. Learned counsel for appellant Anil Yadav further submitted that Madhusudan Rishi P.W. 9 claimed that he saw the occurrence from 100-150 yards and identified the appellant Anil Yadav as the one who was driving red bullet motorcycle over which Harish Chaudhary was pillion rider. He identified Anil Yadav as he was local person and was always seen with Pappu Yadav during electioneering. P.W. 9 also claimed to have identified Harish Chaudhary as he was regular companion of Rajesh Ranjan @ Pappu Yadav though he is not Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 48 presently present in court. P.W. 9 also identified Rajan Tiwary who had come to the place of occurrence on black motorcycle as he had seen him several times during 1998 election. Anil Yadav had kept the motorcycle in start position. Harish Chaudhary, Amar Yadav and Rajan Tiwary resorted to firing. Rajan Tiwary confirmed the death of M.L.A. Sahab by touching his body and thereafter Rajan Tiwary kick start the motorcycle and took Amar Yadav as his pillion rider and went away. Harish Choudhary became the pillion rider of Anil Yadav. Both the motorcycles went towards Congress Office. 34. Learned counsel for Anil Yadav challenged the evidence of Madhusudan Rishi, P.W. 9 on the ground that he for the first time in court after five years of the occurrence stated that he being a local person recognized appellant Anil Yadav as he had seen him along with Rajesh Ranjan @ Pappu Yadav during eletion campaign. Aforesaid deposition according to learned counsel is fit to be rejected in view of the evidence of P.Ws. 56, 61 vide paragraphs 171, 201 of P.W. 56 and paragraph 106 of P.W. 61 that P.W. 9 never stated such fact before either P.W. 56 or P.W. 61. 35. Learned counsel for appellant Anil Yadav further submitted that Lal Bahadur Oraon, P.W. 10 also identified Anil Yadav as the one who came to the place of occurrence driving red bullet motorcycle with Harish Choudhary sitting as pillion rider. He also Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 49 claimed that black motorcycle was driven by Amar Yadav and a tall man with arm was his pillion rider. He also stated that he could identify Anil Yadav as he had seen him along with Rajesh Ranjan @ Pappu Yadav during election campaign. P.W. 10 further stated that local police arrived at the place of occurrence after 15-20 minutes of the occurrence but he is not aware as to how long the police remained at the place of occurrence. P.W. 10 further confirmed that he did not infirm the local police about the name of the assailants including the fact that he new the assailants from the time of election. He further stated that he never gave any application to the local police that he is an eye witness of the occurrence. Learned counsel further pointed out towards the evidence of P.W. 10 in paragraph 7 that he signed his statement given to the local police in connection with post mortem of the deceased on 15.6.1998 without reading the same. He further pointed out towards the evidence of P.W. 10 in the same paragraph that the witness had not informed the superior officers of the Bihar Police in writing that local police had obtained his signature on blank paper. 36. Learned counsel for appellant Anil Yadav challenged the evidence of Lal Bahadur Oraon, P.W. 10 that he identified Anil Yadav from before as he had seen him earlier during election campaign of Rajesh Ranjan @ Pappu Yadav as has been claimed by P.W. 10 in paragraph 1 of the examination in chief but such statement was not Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 50 made by the witness while recording his statement before the I.O. of local police, P.W. 56, which is evident from paragraphs 173, 202 of the evidence of P.W. 56 as P.W. 56 claimed in those paragraph that P.W. 10 neither named Anil Yadav in his statement nor claimed that he identified him from before as he had seen him during election campaign of Rajesh Ranjan @ Pappu Yadav. In this regard learned counsel for appellant Anil Yadav also referred to the evidence of P.W. 61, paragraph 107 where P.W. 61 accepted that P.W. 10 had not stated before him that he had seen Anil Yadav and Amar Yadav moving along with Rajesh Ranjan @ Pappu Yadav during his election campaign. 36(a). Learned counsel with reference to the evidence of Ramesh Oraon, P.W. 25 paragraph 3 submitted that he remained at the place of occurrence for about 20-25 minutes after the occurrence but until he was taken from the place of occurrence in tempo P.Ws. 8, 9 and 10 did not come to the place of occurrence. 37. Learned counsel for Anil Yadav further submitted that in the light of the evidence of independent witnesses P.Ws. 19, 25, 48 and 56 P.Ws. 8, 9 and 10 cannot be taken as reliable eye witnesses of the occurrence. Learned counsel also submitted that from the evidence of P.W. 56 paragraphs 200, 201 and 202 it would appear that the three eye witnesses P.Ws. 8, 9 and 10 did not name Anil Yadav as the one who on the date and time of occurrence had come to the place of Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 51 occurrence for executing the conspiracy and assisted the assailants in making good their escape from the place of occurrence on motorcycle by keeping the red bullet motorcycle in start position. 38. Learned counsel with reference to the evidence of Domai Thakur and Shambhoo Prasad Mehta, P.Ws. 15 and 16 submitted that both the witnesses had seen Anil Yadav, Harish Chaudhary, Amar Yadav and one unknown in Harda market over read bullet and black motorcycle taking rounds of the market in the afternoon prior to the occurrence. They also saw the two motorcycles following the white Ambassador car of the deceased Ajit Sarkar from Harda market. 39. Learned counsel for Anil Yadav also challenged the evidence of Domai Thakur and Shambhoo Prasad Mehta, P.Ws. 15, 16 on the ground that they falsely stated in their examination in chief that on the date of occurrence they had seen Anil Yadav taking rounds on red bullet motorcycle with pillion Harish Chaudhary in Harda market and thereafter followed the car of the deceased as they recognized both Anil Yadav and Harish Chaudhary from before i.e. time of election campaign of Rajesh Ranjan @ Pappu Yadav. According to learned counsel aforesaid deposition of P.Ws. 15, 16 has been made for the first time in court after more than five years of the occurrence, which is evident from paragraphs 109, 289 of P.W. 61 who has categorically Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 52 stated that such statement was never made before him while he recorded the statement of P.Ws. 15, 16 during investigation. 40. Learned counsel with reference to paragraph 173 of the evidence of A.K. Jha, P.W. 56, I.O. of K. Hat P.S. Case No.230/98 submitted that witness Lal Bahadur Oraon, P.W. 10 has not stated before him (P.W. 56) that Rajesh Ranjan @ Pappu Yadav calls Harish Chaudhary as Mama. P.W. 10 further did not state before P.W. 56 that during election he had seen Anil Yadav along with Rajesh Ranjan @ Pappu Yadav. P.W. 10 has also not stated before P.W. 56 that he had seen Amar Yadav together with Rajesh Ranjan @ Pappu Yadav during election campaign. P.W. 10 had also not stated before P.W. 56 that Rajesh Ranjan @ Pappu Yadav during election speech had stated that in the event he wins the election he shall assault Ajit Sarkar by entering his house and in case, he loses the election he will assault Ajit Sarkar on the road. With reference to paragraph 174 of the evidence of P.W. 56 learned counsel submitted that during election campaign while delivering street corner speech Jawahar Yadav and Abdul Sattar had stated in village Rani Patra that in case Rajesh Ranjan @ Pappu Yadav will win the election the M.L.A. shall be assaulted in his house and in case, he loses the election then on road. With reference to the evidence of P.W. 56 in paragraph 200, 201, 202 learned counsel for appellant Anil Yadav submitted that neither P.W. 8 nor P.W. 9 nor P.W. 10 had named Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 53 Anil Yadav in their statement given to P.W. 56 as the one who was involved in the murder of Ajit Sarkar and two others. 41. Learned counsel for Anil Yadav with reference to the evidence of P.W. 61 paragraphs 227, 254 to 268, 271 to 275, 280 to 290 submitted that the prosecution case put forth by P.Ws. 8 to 10, 15 and 16 is fit to be rejected as the version put forward by those witnesses implicating Anil Yadav was not stated by those witnesses before the I.O., P.W.61. P.Ws. 9, 10 named Anil Yadav for the first time before P.W. 61 vide paragraphs 256, 258. Aforesaid version has been put forward by the witnesses for the first time in court and to deliberately conceal the innocence of appellant Anil Yadav his statement recorded under Section 164 Cr.P.C. has not been brought on record. It is further submitted on behalf of Anil Yadav that red bullet motorcycle was not seized from his house as he never owned/possessed any motorcycle. According to learned counsel the oral evidence of the prosecution that Anil Yadav possessed red bullet motorcycle is hit by Section 59 of the Evidence Act in absence of any documentary proof showing his ownership of the red bullet motorcycle, which was never put on T.I. Parade for identification. Reference in this connection is also made to the evidence of D.Ws. 5 and 11. Learned counsel for Anil Yadav submitted that story of recovery of red bullet motorcycle is not true as the said motorcycle was neither produced before the C.J.M., Purnea nor Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 54 before the trial court and recovery memo, Exts. 40, 43 was admitted in evidence with objection which is a weak evidence and hit by Sections 24, 25, 26 of the Evidence Act. 42. Learned counsel with reference to paragraphs 227, 228 of the evidence of N.H. Kharaiyat, P.W. 61 (I.O.) submitted that P.W. 9 had not stated before him that Anil Yadav kept the motorcycle in start position and Amar Yadav, Harish Chaudhary, Rajan Tiwary resorted to firing. He also did not state before him that Rajan Tiwary having confirmed the death of Ajit Sarkar by touching his body kick start the motorcycle over which Amar Yadav sat as pillion rider, Harish Chaudhary became the pillion rider of Anil Yadav and the two motorcycle escaped through Krishna Ashram road over which Congress office is also situated. 43. Learned counsel for appellant Anil Yadav further submitted with reference to paragraphs 27, 283 of the evidence of P.W. 61 that confessional statement of Anil Yadav was also recorded on 26.2.1999 under Section 164 Cr.P.C. by Mrs. Santosh Sneh Mann, Metropolitan Magistrate, Delhi but the said statement has not been cited as evidence in the charge sheet. 44. Learned counsel further submitted that red bullet motorcycle said to have been used in the crime and recovered from the verandah of the house of Anil Yadav on 18.2.1999 vide two disclosure Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 55 memo, both dated 18.2.1999, Exts. 43, 43/1 and pointing out cum recovery and seizure memo dated 18.2.1999, Ext. 40 admitted in evidence with objection. The motorcycle having not been produced in court and the two independent witnesses of the disclosure memo, namely, Upendra Shukla and P.K. Verma officer of the State Bank of India, P.Ws. 23, 24 having stated in their evidence that it is incorrect to say that disclosure memo was prepared in their presence and they signed the same on 18.2.1999 the memo cannot be relied upon. The pointing out cum recovery and seizure memo Ext. 40 admitted in evidence with objection can also not be relied upon as the two independent witnesses to the said pointing out cum recovery and seizure memo, namely, Umesh Mishra and Shiv Shankar Prasad, Telecom Technical Assistant and Junior Telecom Officer in the office of S.D.O. Phones and Telecom District Manager, Katihar having not been examined there is no authenticity of the contents of the said pointing out memo. In this connection, reliance is also placed on the evidence of P.W. 61 in paragraph 261 onwards wherefrom it will appear that Anil Yadav was arrested on 17.2.1999 after he was called from his village home through one Prabhakar Yadav his distant relative at circuit house by Inspector A.K. Gupta, though prior to his arrest his house was searched but nothing incriminating was found. In support of the aforesaid contention learned counsel for appellant Anil Yadav relied on the judgment of this Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 56 Court in the case of State of Bihar Vs. Surendra Manjhi and Anr., 2010 CRI. L. J. 292, Vijay Singh Vs. State of M.P., 2005 CRI. L. J. 299. Submission on behalf of appellant Rajesh Ranjan 45. Learned counsel for appellant Rajesh Ranjan @ Pappu Yadav besides adopting the submission made on behalf of Rajan Tiwary submitted that C.B.I. ought to have filed its further report in K.Hat P.S. Case No.230/98 in the court of C.J.M., Purnea as per sub-section (1) of Section 4, 26 and sub-seciton (8) of Section 173 of Cr.P.C. but in any case after receipt of the records of K. Hat P.S. Case No. 230/98 in the C.B.I. Court on 7.1.2002 the C.B.I. Court ought to have tried the accused sent up for trial by Purnea police under charge sheet dated 20/21.9.1998 together with the accused sent up for trial by the C.B.I. under charge sheet no. 01, supplementary charge sheet no. 04 dated 10.5.1999/ 19.8.1999 in accordance with law. The C.B.I. did favour the accused persons charge-sheeted by Purnea police as it recommended for their discharge in the charge sheet dated 10.5.1999 as also filed separate application dated 15.9.1999 for their discharge in the court of Special Judicial Magistrate, C.B.I., Patna on the basis of which Special Judicial Magistrate, C.B.I., Patna passed order dated 15.9.1999 discharging the accused sent up for trail by Purnea police in connection with K. Hat P.S. Case No.230/98, which is wholly illegal and contrary to the provisions Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 57 contained in Section 186 Cr.P.C. According to learned counsel the Additional Sessions Judge XI cum C.B.I. Court, Patna ought to have conducted the trial of the accused persons sent up for trial by Purnea police under charge sheet dated 20.9.1998 together with the accused sent up for trial by the C.B.I. under charge sheet/ supplementary charge sheet dated 10.5.1999/ 19.8.1999 after receipt of the records of K. Hat P.S. Case No. 230/98 by the C.B.I. Court on 7.1.2002 in the light of Section 186 Cr.P.C. Additional Sessions Judge XI cum C.B.I. Court, Patna having not tried the accused sent up for trial by Purnea police in K. Hat P.S. Case No.230/98 under charge sheet dated 20/21.9.1998 together with the accused sent up for trial by the C.B.I. under charge sheet/ supplementary charge sheet dated 10.5.1999/ 19.8.1999 the trial conducted by the Additional Sessions Judge XI cum C.B.I. Court, Patna of the accused sent up for trial under charge sheet/ supplementary charge sheet submitted by the C.B.I. is nothing but abuse of the process of the court at the hands of C.B.I. and serious failure of justice has been caused by the prosecution to the appellants. The trial of the appellants is neither free nor fair. It is submitted that no man shall be prejudiced by the act of court or prosecution, which is well settled principle of law. According to learned counsel in the instant case C.B.I. and its prosecutor willfully favoured the accused persons sent up for trial by Purnea police by withholding the statement of prosecution witnesses recorded by P.W. 56 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 58 and thereby caused serious prejudice to the case of the appellants. 46. Reliance in this connection has been placed over the judgment of the Suprerme Court in the case of Association for Protection of Public Rights and Interest through its Secretary Vs. State of Bihar and others, 1990 CRI. L.J. 1928, paragraphs 35, 36, Balbir Vs. State of Haryana and Another, (2000) 1 SCC 285, T.T. Anthony Vs. State of Kerala and others, AIR 2001 SC 2637, Vinay Tiyagi Vs. Irshad Ali @ Deepak and others, 2013 CRI. L.J. 754. 47. Learned counsel for Rajesh Ranjan @ Pappu Yadav further submitted that accused in a criminal case has fundamental and legal right to receive an honest, impartial and untainted investigation and also free and fair trial as per the settled, just, fair and reasonable procedure in law in the light of the principles of natural justice as enshrined under Articles 14, 20, 21 and 22 of the Constitution as also by reading the principles enshrined in those articles in the applicable statutory laws i.e. Cr.P.C. and the Evidence Act. It is submitted that in the instant case appellant Rajesh Ranjan @ Pappu Yadav neither received honest, impartial untainted and fair investigation nor received free and fair trial as per the established, fair, just and reasonable procedure in accordance with judicially settled principles of law. According to learned counsel provisions of Sections 4(1), 91, 149, 151, 154, 161, 162, 164, 169, 172, 173, 173(2), 173(8), 223, 281, 299, 310 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 59 and 317 of the Cr.P.C. were not correctly applied while conducting the investigation and subjecting the appellants to trial. He also referred to the provisions of Sections 3, 4, 8, 10, 17, 22, 24, 25, 26, 27, 28, 30, 31, 54, 59, 60, 61, 62, 63, 64, 65, 65-A, 65-B, 66, 101 to 104, 106, 114, 115, 136, 137, 145, 146, 154, 155, 156 and 157 of the Evidence Act and submitted that in the instant trial inadmissible and tainted evidence was received and considered by the trial court violating the aforesaid provisions. 48. To buttress the aforesaid submission learned counsel for Rajesh Ranjan @ Pappu Yadav submitted that prosecution placed reliance on the confessional statement of Rajan Tiwary, Ext. 35 to convict him of the offence of hatching conspiracy with Rajan Tiwary and to kill Ajit Sarkar is violative of the constitutional protection allowed to him in part III of the Constitution vide Sub-Article (3) of Articles 20, 21 and 22 of the Constitution. He further submitted that confessional statement recorded under Section 164 Cr.P.C. can only be used against the person who has recorded his confessional statement. In this connection, learned counsel placing reliance on the 69th report of the Law Commission of India submitted that the confession should not be relied upon against such other person(s) named in the confession as the other person(s) named in the confession had no opportunity to cross- examine the person who made the confession. In this connection, Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 60 learned counsel referred to following paragraph from the Government of the United States by Munro(Edn. 5) Page 53 quoted by the Supreme Court in the case of A. K. Gopalan Vs. State of Madras, AIR 1950 Supreme Court 27. “The architects of 1787 built only the basement. Their descendents have kept adding walls and windows, wings and gables, pillars and porches to make a rambling structure which is not yet finished. Or, to change the metaphor, it has a fabric which, to use the words of James Russell Lowell, is still being ‗woven on the roaring loom of time.‘ That is what the framers of the original Constitution intended it to be. Never was it in their mind to work out a final scheme for the government of the country and stereotype it for all time. They sought merely to provide a starting point.‖ 49. Learned counsel further referred to the following observation of the Supreme Court in the case of Rustum Cavasjee Cooper Vs Union of India, AIR 1970 Supreme Court 564 quoted with approval by the Supreme Court in the case of Maneka Gandhi Vs. Union of India, AIR 1978 Supreme Court 597. ―---------- it is not the object of the authority making the law impairing the right of a citizen nor the form of action Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 61 that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual‘s rights.‖
Decision
92. In response to the prayer made in the writ petition C.B.I. filed counter affidavit stating that the appellant Rajesh Ranjan @ Pappu Yadav is a dreaded criminal who is also involved in the murder of Kalyan Chandra Sarkar. His involvement in the said murder has come to light during investigation of the said case by the C.B.I. pursuant to the notification of the Government of India dated 28.9.1998 and registration of RC 12(S)/98/SIC-IV New Delhi on 12.10.1998. In the light of the material collected during investigation non-bailable warrant has been issued for his arrest on 6.3.1999 but he is absconding and evading arrest. Delhi High Court having considered the contents of writ petition, counter affidavit and having noticed the suppression made by appellant Rajesh Ranjan @ Pappu Yadav dismissed the writ petition imposing cost of Rs. 25,000/- under order dated 5.5.1999. Perusal of the said order would indicate that while dismissing the writ petition Delhi High Court Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 102 held that the writ petition was filed by Rajesh Ranjan @ Pappu Yadav to thwart further investigation by the C.B.I. in the murder of Ajit Sarkar. Delhi High Court in the said order also noticed the suppression made by Rajesh Ranjan @ Pappu Yadav that he had earlier filed an application for anticipatory bail which was subsequently withdrawn by him but such information was withheld from the Delhi High Court. Having noticed the said suppression, Delhi High Court directed its Registrar General to file a complain before an appropriate Court against the appellant for making false statement in Paragraph-10 of the petition that there was no question of his absconding from prosecution when it is clear that on the date of the petition i.e. 26.3.1999 appellant Rajesh Ranjan @ Pappu Yadav was already an absconder evading arrest in response to warrant issued by the Special Magistrate, C.B.I., Patna on 6.3.1999. 93. Counsel for the C.B.I. next submitted that appellant Rajan Tiwari also challenged charge-sheet submitted by the C.B.I in R.C 12 (S)/98/ SIC-IV New Delhi dated 10.5.1999 before this Court by filing Cr. Misc. No. 24843/2000 on 30.8.2000 on the ground that though the provisions of Section 173(8) of Cr.P.C. provides for further investigation but that does not mean a fresh investigation which appears to have been done by the C.B.I. in the present case as in its investigation C.B.I. has propounded a new theory about the murder which is not at all in conformity with the findings of the local Purnea Police which submitted Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 103 charge-sheet dated 19.9.1998 and cognizance of the offence was also taken by the C.J.M., Purnea under order dated 23.9.1998. Aforesaid submission was repelled by the Court in Paragraph 6 of its order dated 20.3.2002, reported in 2002(4) PLJR 327 with reference to the notification of the State Government dated 11.8.1998, Ext. 8 in terms whereof State Government recommended to the Government of India under Section 6 of Delhi Police Establishment Act to entrust the investigation of K. Hat P.S. Case No. 230/98 dated 14.6.1998 to the C.B.I. and held that as the State Government had the power to take away the investigation from the local police and to entrust it to the C.B.I. which entrustment was made before the State Police submitted charge- sheet, submission of charge-sheet by the C.B.I. was not a case of further investigation into a case and the C.B.I. was authorized to investigate the case in the manner as it deemed fit and to reach its own conclusion. This Court in the bottom of Paragraph 6 clearly held that grant of consent by the State Government would tantamount to taking over the investigation from the State police and to transfer it to the C.B.I. Having held as above, the petition questioning the submission of charge-sheet by the C.B.I. was dismissed. 94. Rajesh Ranjan @ Pappu Yadav filed Cr. Misc. No.27412 of 2000 before the Patna High Court on 19.9.2000 seeking transfer of case records of K. Hat P.S. Case No.230/98 from C.J.M., Purnea to the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 104 court of Additional Sessions Judge-XI cum C.B.I. Court, Patna so as to enable the Additional Sessions Judge-XI cum C.B.I. Court, Patna to try both the sets of accused persons sent up for trial by the Purnea police under charge sheet dated 20/21.09.1998 and by the C.B.I. under charge sheet/ supplementary charge sheet dated 10.5.1999/ 19.8.1999 filed in RC No. 12(S)/98 but the application was dismissed under order dated 19.04.2001. 95. Supreme Court under order dated 25.7.2001 reported in (2004) 7 SCC 539 set aside the order dated 6.9.2000 granting bail to appellant Rajesh Ranjan @ Pappu Yadav. 96. On 9.4.2003 Madhusudan Rishi, P.W. 9 expressed his apprehension with regard to threat to his life before the trial court and the trial court under order dated 9.4.2003 appreciating the gravity of the threat directed S.P., Purnea to make necessary arrangement. 97. Supreme Court under order dated 12.3.2004 reported in (2004) 7 SCC 528 set aside the order granting bail to Rajesh Ranjan @ Pappu Yadav. Perusal of said order indicates that Supreme Court took note of the fact that large number of witnesses examined after release of the appellant on bail turned hostile and there were complaints made to the court about the threat administered by the said accused or his conspirators to witnesses in the case. 98. In the light of the complaint dated 9.3.2004 made by R.N. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 105 Singh, P.W. 7 the trial court under order dated 7.5.2004 directed Director General of Police, Bihar and S.P., Purnea to make necessary arrangement for the security of P.W. 7. 99. Supreme Court under order dated 20.7.2004 reported in (2005) 3 SCC 307 directed that Rajesh Ranjan @ Pappu Yadav be kept in prison cell like any other prisoner and should not be kept in hospital on his request which was not genuine. Furthermore contempt notice was issued to Medical Superintendent, Medical College and Hospital, Patna for furnishing false information to court. Supreme Court also observed that Rajesh Ranjan @ Pappu Yadav had surreptitiously managed to obtain his production warrant from Fast Track Court in connivance with the Peskar and used this opportunity to address election meeting at his constituency in Madhepura. The Court took suo motu cognizance of newspaper report under order dated 3.2.2005 reported in (2005) 3 SCC 310, 311. 100. Supreme Court under order dated 18.1.2005 reported in (2005) 2 SCC 42 cancelled the bail granted by the High Court to Rajesh Ranjan @ Pappu Yadav observing that the approach of the High Court was irresponsible, contrary to record and tantamounts to overruling the finding of the Supreme Court by substituting its own subjective satisfaction. 101. Supreme Court under order dated 14.2.2005 reported in Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 106 (2005) 3 SCC 284 transferred Rajesh Ranjan @ Pappu Yadav from Beur Jail, Patna to Tihar Jail, Delhi for causing and being involved in serious blatant and unabashed violation of the Bihar Jail Manual and for utter disregard to the rule of law coupled with complete inability or unwillingness of the jail authorities to prevent such violation by him. 102. During the pendency of this appeal Rajesh Ranjan @ Pappu Yadav was admitted to the privilege of bail by the High Court under order dated 18.2.2009 which was set aside under order dated 3.5.2010 reported in (2010) 6 SCC 417 with reference to the observations made by the Supreme Court in its earlier order reported in (2007) 1 SCC 70, paragraph 24 that in the facts and circumstances of the case Supreme Court found no merit in the appeal filed by Rajesh Ranjan @ Pappu Yadav which was dismissed observing that no further application for bail will be considered on his behalf in this case by any court as already a large number of bail applications have been rejected earlier both by the High Court and the Supreme Court. Further investigation/reinvestigation and Discharge of previous set of accused by the Special Judicial Magistrate 103. Learned counsel for the C.B.I. with reference to the judgment of the Supreme Court in the case of Central Bureau of Investigation Vs. Rajesh Gandhi, (1996) 11 SCC 253, paragraphs 8, Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 107 9 submitted that decision to investigate or the decision on the Agency which should investigate does not attract principles of natural justice. The accused cannot have a say in the matter of Agency which should investigate the offences he is charged with. There is no provision in law under which while granting consent or extending the powers and jurisdiction of the Delhi special Police Establishment to the specified State and to any specified case reasons are required to be recorded on the face of the notification. In this connection, he also referred to the judgment of the Supreme Court in the case of Vipul Shital Prasad Agarwal Vs. State of Gujarat and Another, (2013) 1 Supreme Court Cases 197, paragraphs 4, 13, 18 and the judgment of the Supreme Court in the case of T.T. Antony Vs. State of Kerala and others, AIR 2001 Supreme Court 2637, paragraphs 9, 11, 15, 18, 27, 28, 35 and Union of India Vs. Prakash P. Hinduja and another, (2003) 6 SCC 195, paragraphs 10, 16, 17, 20, 21 and defended the decision of the State Government to grant consent for investigation of K.Hat P.S. Case No. 230/98 by the C.B.I. under notification dated 11.8.1998, Ext. 8 and the decision of the Government of India to entrust such investigation to the C.B.I. under notification dated 28.9.1998, Ext. 42. 104. Learned counsel for the C.B.I. further submitted that having registered RC 12(S)/98/SIC-IV/New Delhi on 12.10.1998 for administrative convenience it was the duty of the C.B.I. to further Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 108 investigate the offences committed in connection with incident in question i.e. murder of Ajit Sarkar and two others by examining the prosecution witnesses including others and to reach its own conclusion about the set of accused i.e. appellants and others involved in the crime and to file charge sheet dated 10.5.1999 and the supplementary charge sheet dated 19.8.1999. He further submitted that it was the Special Judicial Magistrate, C.B.I., Patna who passed order dated 15.9.1999 in consideration of the charge sheet dated 10.5.1999 and supplementary charge sheet dated 19.8.1999 submitted by the C.B.I. recommending these appellants and two others to face trial in connection with murder of Ajit Sarkar and while considering the said charge sheet C.B.I. Magistrate discharged the accused sent up for trial under charge sheet dated 20.9.1998 and only committed the case of the appellant charge-sheeted by the C.B.I. for trial. The failure of the Magistrate not to commit the case of the accused persons sent up for trial by the Purnea Police, the investigation of the offence made by the C.B.I. and the trial of the appellants cannot be questioned. 105. According to learned counsel for C.B.I. mere fact that during further investigation of the offence it emerged that persons other than the accused arrayed by Bihar Police were involved does not mean that reinvestigation was conducted by the CBI. It is respectfully submitted that the Investigation Agency has the right and sacrosanct Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 109 duty to investigate the matter independently and impartially and place all the relevant material for the consideration of the Court. It would be relevant to note that during course of further investigation by CBI, Kalyan Chandra Sarkar, Lal Bahadur Uraon stated before CBI that the Fard Bayan alleged to have been recorded by Bihar Police was merely signed by them without reading the contents thereof. Other than the alleged Fard Bayan recorded by Bihar Police, there existed no evidence against the set of persons stated to be the assailants in the said Fard Bayan. Rather it was the categoric and consistent assertion of the witnesses that the said persons were not involved and in fact certain other persons were the assailants. During the course of further investigation the version of the witnesses was found to be reliable as it found confirmation from the judicial confession of the unknown assailant who turned out to be Rajan Tiwari and the said confession was found to be truthful as it found corroboration in material particulars from various circumstances that are proved from cogent documentary evidence. Therefore, in light of these attending circumstances the CBI filed the first supplementary charge sheet in the case on 10.05.1999 against Rajan Tiwari and Anil Kumar Yadav. Other co accused persons namely Rajesh Ranjan @ Pappu Yadav, Harish Chaudhary and Amar Yadav were arrested subsequently and therefore further supplementary charge sheets were filed. Reliance is placed on the observations of the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 110 Hon‘ble Supreme Court in TT Antony v. State of Kerala reported as (2001) 6 SCC 181 wherein illustration in Para 18 is pressed into service. It assumes significance that all the material collected by Bihar Police was duly placed in all fairness before the CBI court by the CBI and even the investigating officer of the Bihar Police was arrayed as prosecution witness as the CBI had conducted only further investigation in the matter and not reinvestigation in which case the material collected earlier may not have been produced before the court. It is respectfully submitted that the supplementary charge sheet was filed by the CBI before the Court of Learned Special Judicial Magistrate-CBI, Patna as only he is competent to receive charge sheets submitted by CBI to the exclusion of all other magistrates and he is notified with such powers by the State Government in consultation with the Hon‘ble High Court. Reliance is placed upon the decision reported as (2008) 2 SCC 383 titled State of Andhra Pradesh v. A. .S Peter that is squarely applicable to the facts of the present case and buttresses the said proposition. Therefore it is evident that further proceedings in the said case could be carried out before the said Magistrate only and Chief Judicial Magistrate, Purnea stood divested from any powers in regard to the case upon transfer of investigation from the State Police to the CBI. In view of the above, it is humbly submitted that the Learned Chief Judicial Magistrate- Purnea was not competent to keep the matter Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 111 pending before him and should have on its own transferred the records to the Court of Learned Special Judicial Magistrate CBI, Patna. 106. The second limb of the submission of the appellants that even for conducting further investigation in terms of section 173(8) of Cr.P.C. formal permission of the Magistrate must necessarily be sought by the investigation agency in view of the recent judgment dated 13.12.2012 of the Hon‘ble Supreme Court in Vinay Tyagi v. Irshad Ali Criminal Appeal no. 2040-2041 of 2012 is of no avail as the Learned Chief Judicial Magistrate vide order dated 23.09.1998 permitted the Bihar Police to carry on further investigation with respect to the appellants herein and others. The CBI has stepped into the shoes of the state Police and therefore was entitled to carry on further investigation in the offence. There is no quarrel with the proposition lamented in the aforesaid judgment of the Supreme Court and in the facts of the present case formal permission had been sought from the Learned Magistrate before carrying on further investigation. Reliance is placed upon 3 judge bench decision of Apex Court in State of Bihar and another v. J.A.C. Saldanha and others reported as (1980) 1 SCC 554 wherein it was held that even Superior Officer has the untrammeled power to undertake the exercise of further investigation. Reliance is placed on the judgment of the Hon‘ble Supreme Court in Union of India v. Prakash P. Hinduja and another reported as (2003) Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 112 6 SCC 195 wherein it was held that even if there is an illegality in investigation the same does not vitiate the cognizance and trial subsequent thereto. Recently the Hon‘ble Supreme Court in its judgment titled Vipul Shital Prasad Agarwal v. State of Gujarat and another reported as (2013) 1 SCC 197 has held in para22 that it is the administrative practice of the CBI to reproduce the FIR of the local police inform of RC and the same cannot be construed to mean that a fresh FIR has been registered by the CBI. 107. Learned counsel submitted that there was no evidence against accused Bipin Singh @ Bipin Chaudhary, Diwakar Chaudhary, Jawahar Yadav @ Nirmal Yadav, Abdul Sattar and Pappu Dev @ Sanjay Dev, a request was made by CBI for their discharge. The contention on behalf of the appellant before this Hon‘ble Court that the learned Special Judicial Magistrate, CBI was not competent to discharge the said accused and discharge, if any, could have been made by the Additional Sessions Judge can have no force as all the grievances of the appellants against the factum of their being charge sheeted were agitated before the Higher Courts and the same were rejected. The order of the learned Special Judicial Magistrate dated 15.09.1999 discharging the previous accused was not assailed by the appellants as evidently no prejudice was felt by them. The factum of the said accused persons not being committed, therefore not charged and consequently not put to trial Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 113 cannot effect the trial of the appellants in any manner. Even assuming that there was some procedural irregularity or failure on part of the Learned Magistrate in discharging the accused, such alleged impropriety at the pre-trial stage would not vitiate the trial of the appellants as no prejudice has been demonstrated at their instance which resulted in failure of justice. It is a settled proposition that the object of criminal justice machinery is to punish the guilty if the evidence led at trial proves the culpability beyond reasonable doubt and the entire exercise cannot be rendered non-est on account of an alleged irregularity which admittedly has caused no prejudice to the accused much less, resulted in any failure of justice. Furthermore, if at any time evidence against the persons arrayed as accused by Bihar police emerged before the Learned Sessions Court recourse to the provision of section 319 Cr.P.C. could have been taken at any stage. Even otherwise in ultimate analysis the function of the Learned Trial Court and this Hon‘ble Court exercising its appellate jurisdiction in terms of section 374 Cr.P.C. is required to assess the credibility of evidence qua the appellants herein and if the evidence inspires confidence the court may act upon it to tender a finding of guilt, as has been done in the instant case by the Learned Trial Court. The scope of the present appeal is confined to the conclusions arrived at by the Learned Trial Court based upon the evidence led before it against the accused persons who were charged i.e. the appellants- Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 114 herein. It has been consistently held by the Supreme Court that any defect, irregularity and absence of charge cannot ipso facto result in vitiating trial. Reliance is placed upon constitution bench decision in AIR 1956 SC 116- Willie (William) Slaney v. State of Madhya Pradesh. Significantly, the Hon‘ble Supreme Court in decision reported as (2012) 2 SCC 188 titled Nupur Talwar v. CBI, Dehi has held that the Magistrate even in cases where final report is filed by the Investigating Agency, is competent under the code to refuse to take cognizance and is not bound by the opinion of the Investigating Officer. 108. Learned counsel for the C.B.I. next submitted that the challenge on behalf of the appellant Rajesh Ranjan @ Pappu Yadav to the validity of Section 30 of the Evidence Act whereunder judicial confession recorded by an accused is not only admissible against him but also against co-accused without giving opportunity to the co-accused to cross-examine the accused recording confession implicating him has to be upheld in view of the safeguards provided under Sub-Sections (2), (3), (4) of Section 164 Cr.P.C. He further submitted that vires of even more draconian provision contained in Section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 as amended by TADA (Amendment) Act, 1993 providing for confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 115 mechanical device like cassettes, tapes or sound track shall be admissible in trial of such person or co-accused abettor or conspirator has already been upheld in the light of the statutory warning contained in Sub-Section (2) of Section 15 of TADA Act required to be given by the police officer to the person making the statement before recording his statement vide judgment of the Supreme Court in the case of Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569, paragraphs 192 to 197, 205, 210 to 212, 214 to 223, 255. 109. Learned counsel for the C.B.I. next submitted that in the instant case Sri G.S. Saini, P.W. 59 the then Metropolitan Magistrate granted sufficient time for reflection to Rajan Tiwary and on his insistence to record statement as he wanted to improve himself proceeded to record the statement of Rajan Tiwary after administering statutory warning in terms of Sub-Section (2) of Section 164 Cr.P.C. that the statement which he is proposing to record will be used against him in evidence, which is evident from endorsement made by Sri Saini over petition filed by I.O., P.W. 61 for recording the statement of Rajan Tiwary under Section 164 Cr.P.C. as also from the order sheet maintained by Sri Saini on that date and the certificate recorded by him, as is required under Sub-Section (4) of Section 164 beneath the statement. 110. Learned counsel for the C.B.I. further submitted that Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 116 submission made on behalf of the appellant Rajan Tiwary that he having not been allowed at least 24 hours time for reflection the confession recorded by him on 22.2.1999 is wholly involuntary and fit to be rejected in view of the judgment of the Supreme Court in the case of Kartar Singh(supra), paragraph 390 is misconceived as paragraph 390 is the minority opinion of K. Ramaswamy J. where his lordship observed with reference to the judgment of the Supreme Court in the case of Sarwan Singh(supra), paragraph 10 that sufficient time should be given to the accused for reflection, but no hard and fast rule could be laid as to the proper time for reflection. 111. Learned counsel for the C.B.I. further submitted that confession under Section 164 Cr.P.C. is to be recorded as per the manner provided in Section 281 Cr.P.C. Learned counsel distinguished the case of Sarwan Singh (supra) and submitted that confession recorded by Sarwan Singh was rejected as visible mark of injury was noticed by the Magistrate before recording the confession, yet he was not granted 24 hours time for reflection. In the case of Rajan Tiwary no visible mark having been seen on the person of Rajan Tiwary and Rajan Tiwary was insisting to record his confession so as to improve himself Metropolitan Magistrate, P.W. 59 allowed him 45 minutes time for reflection. Counsel for the C.B.I. relied upon the judgment of the Supreme Court in the case of Shankaria Vs. State of Rajasthan, 1978(4) SCC 453, paragraphs Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 117 9, 10, 16, 17, 18 to 23, 27 and submitted that on June 12, 1974 Shankaria under the orders of the Magistrate was lodged in judicial lock up. On June 13, 1974 application was filed to the Judicial Magistrate Ist Class requesting him to record the confessional statement of Shankaria. The Magistrate thereupon passed order that Shankaria be produced from judicial lock up on June 14, 1974 at 7 A.M. for the purpose. Shankaria was accordingly, produced before the Magistrate for recording his confession on June 14, 1974 at 7 A.M. The Magistrate put some questions to Shankaria by way of preliminary examination to ensure that he wanted to make statement voluntarily. The Magistrate gave Shankaria sometime for reflection and proceeded to record his confession from 8.45 A.M. onwards, yet the confession of Shankaria recorded by the Magistrate. He submitted that following the law laid down by the Supreme Court in the case of Shankaria (supra) this Court should also accept the confession recorded by Rajan Tiwary, Ext. 35. 112. Learned counsel for the C.B.I. also submitted that safeguard provided under Sub-Section (3) of Section 164 Cr.P.C. is not required to be read into Sub-Section (2) of Section 164 Cr.P.C. and submitted that as P.W. 59 had taken the precaution required under Sub- Section (2) of Section 164 Cr.P.C. before proceeding to record the confession, confession of Rajan Tiwary Ext. 35 is fit to be relied upon by this Court. Reliance in this connection was placed by the learned Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 118 counsel for the C.B.I. on the judgment of the Supreme Court in the case of Ravindra Kumar Pal (supra), paragraph 22. 113. Learned counsel for the C.B.I. with reference to the judgment of the Calcutta High Court in the case of Subodh Kumar Dhar Ray and others Vs. State on First Information Report of Rajendra Lal Das, 1966 Cri.L.J. 323, paragraphs 13, 16, 38 submitted that Calcutta High Court in the case of Subodh Kumar Dhar Ray (supra) distinguished the judgment of the Supreme Court in the case of Sarwan Singh (supra) as Sarwan Singh before recording his confessional statement was in police custody for more than 5 days but was just given half an hour time to reflect whether he would make a confession. Having distinguished the judgment in the case of Sarwan Singh (supra) Calcutta High Court accepted the confession made by the accused who was not granted 24 hours time to reflect as the accused remained in police custody for a short time before recording confession and there was no evidence to show that any threat, coercion or inducement was offered by the police to the accused persons before they made confession. 114. Learned counsel for the C.B.I. also relied on the judgment of the Supreme Court in the case of Sidhartha and others Vs. State of Bihar, (2005) 12 SCC 545, paragraphs 10, 14, 15, 16, 18, 19, 20 and submitted that the confession made by the accused under Section Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 119 164 Cr.P.C. is to be relied upon for corroborating the prosecution case. 115. Learned counsel for the C.B.I. reiterated the submissions made above by filing written submission and explaining the legal position with regard to judicial confession. It was foremost contended that reflection time of 24 hours was not provided to the accused and the confession was recorded merely after 45 minutes which is in teeth with the observation of Hon‘ble Supreme Court in Sarwan Singh v. State of Punjab reported as AIR 1957 SC 637. The said observations in the case of Sarwan Singh (Supra) have been affirmed by a Single Judge (Hon‘ble Mr. Justice Ramaswamy) in his dissenting view in the judgment of the Supreme Court in Kartar Singh v. State of Punjab reported as (1994) 3 SCC 569 in the context of recording confessions under TADA. Relevant would it be to note at the outset the said view of Justice Rama Swamy was not endorsed by the majority Judges. It is respectfully submitted that no inexorable proposition was laid down in the Sarwan Singh (Supra) judgment. In the very same judgment it was observed that it would naturally be difficult to lay down any hard and fast rule as to the time which should not be allowed to an accused person in any given case. In this context speaking generally, requirement of 24 hour reflection time to accused was laid down. Regard may also be had to the judgments of the Hon‘ble Supreme Court in the case of Shankaria v. State of Rajasthan reported as (1978) 4 Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 120 SCC 453 and Sidharth v. State of Bihar reported as (2005) 12 SCC 545 wherein while taking into consideration the judgment in Sarwan Singh (supra), the Apex Court acted upon the Judicial Confession which was recorded in less than 24 hours reflection time. Reliance is also placed on the observations of the Division Bench of the Calcutta High Court in the Judgment of Subodh Kumar Dhar Ray and Others v. State on first Information report of Rajendra Lal Das reported as 1966 Cri.L.J 323. The said cases unequivocally evince that the judicial confession may be held to be voluntary and safely acted upon by the court even if less than 24 hours reflection time is provided to the accused. 116. The learned Magistrate had the invaluable opportunity of observing the demeanour of the accused and he meticulously satisfied himself of the voluntariness of the accused in making the confession. He made the accused sit in his chamber, insulated from any potential duress or influence of the officials of the CBI. The Learned Magistrate put various questions to Rajan Tiwari and administered the statutory warnings contemplated under section 164 Cr.P.C. before undertaking the solemn act of recording the judicial confession. Furthermore, it would be pertinent to highlight at this stage that it is the consistent defence of Rajan Tiwari as evidenced from his retraction statement dated 30.03.1999, cross examination of Learned Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 121 Magistrate- Gurdeep Saini (PW 59) and the section 313 statement of Rajan Tiwari that the judicial confession has been fabricated by the Learned Magistrate in connivance with the CBI. It is not the case of the accused Rajan Tiwari that he did not have sufficient time to make a considered decision whether or not he must make an admission of guilt before the Magistrate and therefore the confession should be excluded from consideration as involuntary. In view of the categoric defence of the accused that the confession was fabricated by the Judicial Officer in connivance with CBI, the alleged paucity of time for reflection is of no consequence as evidently no prejudice is suffered by the accused by the alleged paucity of reflection time. Reliance is placed upon the judgment of the Hon‘ble Supreme Court in its decision reported as (1999) 5 SCC 253 titled State V. Nalini . 117. It is respectfully submitted that due weight must be attached to the satisfaction of the Learned Magistrate and the integrity of the proceedings conducted by him. Section 114 (e) of The Indian Evidence Act 1872 enjoins a presumption that may be drawn by the court that all judicial and official acts are performed regularly. It is ex facie implausible that a Judicial Officer of a different State who has no axe to grind would oblige the CBI to foist a confession upon accused Rajan Tiwari. It is humbly submitted that a serious note must be taken of such flagrantly false assertions that are made at the instance of the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 122 accused persons lightly with a view to escape the consequences of such judicial confession in law. Reliance is placed upon the decision of the Hon‘ble Supreme Court reported as (2002) 5 SCC 234. 118. The appellants have laid challenge to the confession on the premise that the appellant Rajan Tiwari was not remanded to judicial custody after recording of confession and the right of the accused to be remanded to judicial custody in case he refuses to make confession was not informed to him by the Learned Magistrate recording the confession. Reliance was placed upon the decision of the Apex Court in Rabindra Kumar Pal @ Dara Singh v. Republic of India reported as AIR 2011 SC 1436. It is respectfully submitted that in the present case the Learned Magistrate after duly satisfying himself as to the voluntariness of the confession and upon the insistence of the accused recorded the confession. Since the accused voluntarily proceeded to make the confession, the question of remanding him to judicial custody did not arise in view of the express and unambiguous mandate of section 164(3) of Cr.P.C. No requirement is envisaged under section 164(3) to inform the accused at the outset that if he chooses not to make the confession he would be sent to judicial custody. The accused must beforehand only be warned in terms of section 164(2) that he is not bound to make a confession and that, if he does so, it may be used as evidence against him. It is therefore respectfully submitted that Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 123 no fault can be attributed to the approach adopted by the Learned Magistrate while recording the confession. It is respectfully submitted that the judgment of the Apex Court in- Dara Singh (supra) in para 29 lays down guidelines on the aspect of recording judicial confessions and it would be pertinent to note that the Hon‘ble Judges in their wisdom have consciously not laid down any requirement therein that the accused must be explained beforehand that he would be remanded to judicial custody if he chooses not to make the confession and neither any requirement of obtaining signatures of the accused on each page of the confessional statement has been adumbrated. A careful analysis of the said judgment reveals that for host of reasons cumulatively the Hon‘ble High Court had refused to act upon the judicial confession made by accused persons and the Hon‘ble Supreme Court affirmed the view taken by the High Court in ultimate analysis rather than endorsing each reason individually and tendering a finding thereon. It would also be noteworthy that in the said case the fundamental requirement of administering the warning that the confession may be used in evidence against the accused was not even complied by the court which goes at the root of the matter and coupled with other circumstances the High Court discarded the confession. 119. It was further contended on behalf of the appellants that the confession of accused Rajan Tiwari was not noted by the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 124 Learned Magistrate in question answer form but in a mere narrative which falls foul of the requirement of law. It is respectfully submitted that a conjoint reading of section 164 Cr.P.C. and section 281 of Cr.P.C. unequivocally evinces that questions are required to be reproduced in the record only if asked to the accused. The sublime philosophy being that answers tendered by the accused would be better appreciated in light of the question asked by the court. In the present case, record palpably reveals that series of questions were asked by the Learned Metropolitan Magistrate to Rajan Tiwari before recording the confession and in order to ascertain and satisfy himself if the confession was being made voluntarily. The said questions are duly recorded and the entire proceedings were penned down by the Learned Magistrate in his own handwriting. Merely because the accused Rajan Tiwari chose to clearly and unambiguously narrate vividly the entire factual conspectus, and no requirement was felt to ask any questions during the narration by the accused, no fault can be found with the approach adopted by the Learned Magistrate. Reliance is placed upon the judgments reported as (1887) ILR 14 Cal. 539-Fekoo Mahto v. the Empress and MANU/WB/0405/1977-Asoke Kumar Chakraborty v. State wherein it has been held that confessions recorded in narrated form do not become admissible and the accused must demonstrate prejudice. 120. It is respectfully submitted that even if the Hon‘ble Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 125 court is of the view that for any reason the Learned Magistrate did not comply with any requirements envisaged under section 164 Cr.P.C. or section 281 Cr.P.C., the confession would not automatically be excluded from consideration in view of mandate of section 463 Cr.P.C. As highlighted earlier since the defence of the accused Rajan Tiwari is that of fabrication of confession by the judicial officer in connivance with the CBI, no prejudice/injury to the defence on the merits is caused by any instance of non-compliance alleged by the accused in the present case. It would be relevant to note that the Hon‘ble Supreme Court in its judgment reported as (1999)5 SCC 253- Nalini‘s case (supra) has taken into account the mandate of section 463 Cr.P.C. to uphold the judicial confession recorded in the matter. Reliance is also placed upon the Nalini‘s case (Supra) to repel the contention advanced on behalf of appellant that signatures of Rajan Tiwari were not taken on 3 pages of the confession. In this regard it would be pertinent to reproduce the relevant paragraphs of the aforesaid judgment in Nalini‘s case (Supra) for the perusal of this Hon‘ble Court which in no uncertain terms brings forth the legal position as aforementioned. “402. It is unnecessary to refer to the provisions of Section 281 of the Code as it is not disputed that otherwise the confessions of the accused have been properly recorded. Contention in the case of Nalini (A-1) is that the mandatory provisions of Rule Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 126 15(3) have been violated as it is not signed by Nalini (A-1) whose signatures are required at the end of the confession. It was thus submitted that since the confession does not bear the signatures of Nalini (A-1) it could not be said to be a valid confession. It is important that the accused signs the confession at the end. In that way he comprehends that he has made confession. Confession of Nalini (A-1), it was submitted, has to be rejected in its entirety. Confession is said to be in 18 pages out of which only pp. 1 to 16 bear her signatures while pp. 17 and 18, which are crucial to the confession, do not bear her signatures… …. The High Court said that this omission cannot be cured by examining the Magistrate under Section 463 of the Code. Section 463 of the Code is as under: “463. Non-compliance with provisions of Section 164 or Section 281.-(1) If any court before which a confession or other statement of an accused person recorded, or purporting to be recorded under Section 164 or Section 281, is tendered, or has been received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in Section 91 of the Indian Evidence Act, Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 127 1872 (1 of 1872), take evidence in regard to such non- compliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement. (2) The provisions of this section apply to Courts of Appeal, reference and revision.”… 404…..There could certainly be a human error but that would not mean that Section 463 of the Code becomes inapplicable. Mr Natarajan is correct in his submission that when the requirement of law is that confession should be signed by the person making it, it would mean his signatures at the end of the confession. What Section 463 requires is that evidence could be led of police officer recording the confession as to why provisions of Rule 15(3) could not be complied with while recording the confession. It has not been suggested or brought on record as to how not getting signatures of Nalini (A-1) on the last pages of the confession has injured her in her defence on the merits of the case. The confession has been corroborated in material particulars by means of an independent evidence even if the confessions of the co-accused are set apart. Confession of Nalini (A-1) was recorded on 7-8- 1991 and was sent to the Court of the Chief Judicial Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 128 Magistrate on the following day and on 9-8-1991 it was sent to the Designated Court. We find that the confession was duly made, which was recorded by V. Thiagarajan (PW 52). We are, therefore, inclined to admit the confession of Nalini (A-1) overruling the objection that Rule 15(3) of the TADA Rules has been violated.” (emphasis supplied by learned counsel for the CBI) 121. It is respectfully submitted that even otherwise on first principle the contention of the appellants is misplaced as there is no requirement under section 164 Cr.P.C. to get signatures of the accused on each page of the statement. In the present case the Learned Magistrate took the signatures of the accused after recording his satisfaction as to the voluntariness of the confession that was arrived at after preliminary questioning of the accused and at the foot of the confession. In this light it would also be instructive to place reliance upon the Delhi High Court Rules which deal with recording confessional statement of accused persons. Perusal of the same also indicates that signature of accused on each page is not required. 5. Form prescribed for recording confessions- the annexed form for recording confessions taken under Section 164 has been prescribed and should invariably be used. xxxxxxxxxxxxx Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 129 Record of a Confession made by an Accused Person (Section 164 of the Code of Criminal Procedure) …………………………Division In the Court of …………………………………… The State Versus The confession………………of……………taken by me. …………a *Magistrate of the .. ………….District, this ……….day of …….19………. Memorandum of Enquiry (The Magistrate shall first, as required by Section 164(3), Code of Criminal Procedure, explain to the accused person that he is not bound to make a confession, and that if he does so, it may be used as evidence against him and shall then put and record answers to the following questions. If the answers are of such a character as to require him to do so, he should put such further questions as may be necessary to enable him to judge whether the accused person is acting voluntarily. In arriving at his conclusion on this point the Magistrate should consider inter alia the period during which the accused person has been in Police custody and make sure that the confession is not the result of any undue influence of ill treatment. Special care should be taken when women or children are produced by the Police for their confessions Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 130 being recorded). Q.- Do you understand that you are not bound to make a confession? A- Q.- Do you understand that your statement is being recorded by a Magistrate, and that if you make a confession, it may be used as evidence against you? A- Q.- Understanding these two facts, are you making a statement before me voluntarily? A- Statement of accused (Make of signature of accused). *Magistrate. I have explained to ………… that he is not bound to make a confession, and that if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it, and admitted by him to be correct, and it contains a full and true account of the statement made by him. *Magistrate. Dated……… Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 131 xxxxxxxxxx The contention advanced on behalf of the appellant that the judicial confession was produced by the CBI before the court and therefore the possibility of tampering cannot be ruled out, especially in absence of signatures of accused on each page, is liable to be rejected as the Learned Magistrate has recorded the confession in his own handwriting and has supported the document in witness-box. If the CBI would have tampered the confession, the Learned Magistrate would have highlighted the same in his deposition and not proved the document. 122. It is submitted on behalf of the appellants that no judicial record/order with regard to police custody of accused Rajan Tiwari being entrusted to the CBI is available on the record and therefore the custody of CBI was illegal and the judicial confession recorded during the said period of custody is liable to be excluded. It is respectfully submitted that appellant Rajan Tiwari himself annexed in Criminal Miscellaneous No. 10646/2003 before the Hon‘ble Patna High Court, photocopy of the remand petition dated 13.02.1999 and photocopy of order passed thereon by the Learned Duty Metropolitan Magistrate-New Delhi. He also filed the aforesaid remand petition in Criminal Miscellaneous No. 27008/2000 before Patna High Court. Furthermore, Rajesh Ranjan @ Pappu Yadav himself annexed the true Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 132 copy of the remand petition as ANNEXURE P3 before Hon‘ble Supreme Court of India in SLP (Crl.) No. 4018/1999. Therefore, it is evident that the said order was into existence and available on Judicial record. The appellants have raised this mischievous submission wittingly concealing from this Hon‘ble Court the material fact that they themselves had annexed the said judicial orders as well as the application moved by CBI on 13.02.1999 in support of their petition and are attempting to play fraud upon the court. It is respectfully submitted that even if the original record of the said orders is not traceable, the same cannot be construed to mean that the order of remand of Rajan Tiwari in favour of CBI never existed. This Hon‘ble Court is entitled to draw the necessary inference in terms of Section 114 Indian Evidence Act as to who would be the beneficiary in case of disappearance of the said judicial record and therefore who would have orchestrated the disappearance of the same. Furthermore, if the appellant Rajan Tiwari would have been in illegal custody of CBI a habeas corpus would have been filed or any complaint in this regard would have been contemporaneously lodged. In fact, even on 23-02- 1999 father of appellant Rajan Tiwari who was a lawyer himself moved a mischievous application which was withdrawn that his son Manish Tiwari was arrested and that he was not Rajan Tiwari as claimed by CBI. However, it was never contended that police custody was not Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 133 taken in furtherance of a valid remand order by the CBI. Significantly, the applicant raised objection to further/extension of remand to Police Custody and has expressly acknowledged in para 3 therein that the Police Remand was taken from the Duty Magistrate on holiday. Reliance is placed upon the decision of the Hon‘ble Supreme Court in its judgment reported as (2011) 10 SCC 445-Pragyna Singh Thakur v. State of Maharashtra wherein it was held that when the objection of illegality of custody was not taken at the earliest opportunity, the same would not be believed. 123. Learned counsel for the C.B.I. next submitted that retraction made by Rajan Tiwary under first undated application forwarded to the C.M.M., Delhi by Deputy Superintendent, Central Jail No. 5, Tihar, New Delhi under letter no.181 dated 1.3.1999, subsequent retraction made on 30.3.1999 and the third retraction petition dated 21.4.1999 is required to be rejected as this court is required to look for the reasons for making of the confession as well as for its retraction and after weighing the two to determine whether the retraction affects the voluntary nature of the confession. In the instant case, Rajan Tiwary having not furnished reasons for retraction his confession earlier made is reliable; the retraction made by him is fit to be rejected. Privy Council once observed, in India it is a rule to record the confession and to find it retracted later. Reliance in this connection was placed on the judgment Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 134 of the Supreme Court in the case of Bharat Vs. State of U.P., (1971) 3 SCC 950, paragraph 7 and State of T.N. Vs. Kutti alias Lakshmi Narasimhan, (2001) 6 SCC 550, paragraph 13. 124. Learned counsel for the C.B.I. placing reliance on the judgment of the Supreme Court in the case of Devender Pal Singh Vs. State of NCT of Delhi and Another, (2002) 5 SCC 234, paragraph 37 submitted that Rajan Tiwary recorded his confessional statement after P.W. 59 was satisfied that Rajan Tiwary wanted to record his confessional statement on his own without there being any pressure from the C.B.I. or any other quarter and it was his voluntary desire to make confessional statement as he wanted to improve himself. There is statutory presumption under Section 114(e) of the Evidence Act that when an official act is proved to have been done it will be presumed to have been regularly done and that being the legal position the retraction made without giving any cogent reason is required to be rejected. In this connection, learned counsel for the C.B.I. also referred to the answers given by Rajan Tiwary to question nos. 6, 7, 8 posed to him during his examination under Section 313 Cr.P.C. and submitted that Rajan Tiwary having not himself referred to the retraction while giving answer to question nos. 7, 8, the same cannot be relied upon. In this connection, he also pointed out that Rajan Tiwary got recorded his confession on 22.2.1999 when he did not make any complaint about torture in the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 135 C.B.I. custody. He also did not make such complaint on 23.2.1999 when he was produced by the C.B.I. for being remanded to judicial custody and then again on 9.3.1999 when he came from judicial custody and again remanded in the same custody, as such, retraction on the ground of torture in police custody under first undated application which was forwarded to the C.M.M., Delhi under letter no.181 dated 1.3.1999 is fit to be rejected. 125. With reference to the judgment of the Supreme Court in the case of Pragyna Singh Thakur, (2011) 10 SCC 445, paragraphs 25, 27 learned counsel for the C.B.I. submitted that complain about the police torture is required to be made by the accused before the Magistrate at the first instance and not belatedly. He further submitted with reference to the first undated retraction application of Rajan Tiwary that from close perusal of said retraction application it would appear that Rajan Tiwary was apprehending his remand in Kabi Nagar(Gaziabad) P.S. Case No.626/98 registered for the offence under Section 302 I.P.C. and to ensure that he is not remanded in the said case and subjected to police torture and encounter he filed undated retraction application which does not affect the merit and genuineness of the confession made by him before P.W. 59 on 22.2.1999. Belated retraction of judicial confession. 126. Submission made in paragraphs 78 to 80 was further Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 136 reiterated by filing written submission stating that the judicial confession made by accused accused Rajan Tiwari was retracted belatedly after a period of more than one month from Beur jail in Bihar. The confession was recorded before the Learned Magistrate on 22-02- 1999. Thereafter, accused Rajan Tiwari was produced before the Learned Chief Metropolitan Magistrate, New Delhi on 23-02-1999 when he was remanded to judicial custody. On 09-03-1999 the accused Rajan Tiwari was produced from judicial custody before the Court of Learned Chief Metropolitan Magistrate- R.K. Gauba with his advocate- Shri S.A. Hashmi, yet no retraction was made. It was only on 30-03- 1999 that accused Rajan Tiwari made retraction by means of a letter sent from jail. It is respectfully submitted that as highlighted in the preceding section that the version of the accused Rajan Tiwari that the judicial officer connived with CBI to fabricate the confession is ex facie unworthy of credit. The retraction which is belated in time and the inherently implausible version contained therein is not worth the piece of paper on which it is scribed, is not only liable to be ignored but is also a tell-tale mark of voluntariness of the confession which was later sought to be retracted, perhaps under the pressure of the co-accused Rajesh Ranjan @ Pappu Yadav; who demonstrably exercised lot of influence even inside jail in Bihar as is evident from various orders of the Hon‘ble Supreme Court leading to his transfer to Tihar Jail- New Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 137 Delhi. The Hon‘ble Supreme Court in its judgment reported as (1971) 3 SCC 950 and (2001) 6 SCC 550 has extensively laid down the law with regard to retraction. With regard to the reliance placed by the Learned Counsel for the Appellant Rajesh Ranjan @ Pappu Yadav upon the letter dated 01-03-1999 sent by accused Rajan Tiwari as his earliest statement of retraction, suffice would it be to state that bare perusal of the said letter unequivocally evinces that allegations comprised therein are confined to alleged torture by Delhi Police to extract disclosure in case F.I.R. No. 122/99 P.S R.K. Puram alleging torture by Delhi Police and not against officials of C.B.I to procure any confession under section 164 before Judicial Magistrate with regard to Ajit Sarkar case murder case. Therefore it assumes significance that appellant Rajan Tiwari in his retraction statement dated 30-03-1999 did not make any cross-reference to any previous retraction on 01-03-1999 as the same was obviously not in relation to Ajit Sarkar murder case. It would also be pertinent to note that the memorandum of appeal filed on behalf of Appellant Rajan Tiwari also does not refer to any retraction dated 01-03-1999 which also fortifies the contention advanced on behalf of C.B.I that the first retraction was made on 30-03-1999 with regard to Ajit Sarkar murder case and the retraction dated 01-03-1999 was with regard to disclosure statement to the Delhi Police in case F.IR No. 122/99 P.S. R.K. Puram. Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 138 Availability of corroboration to the judicial confession in material aspects leading to assurance of its truthfulness. 127. Counsel for the C.B.I. also relied on the judgment of the Supreme Court in the case of Lokeman Shah Vs. State of West Bengal, (2001) 5 SCC 235, paragraph 13 to impress upon this Court the degree of corroboration which is required to prove the material particulars of confessional statement and submitted that the ocular evidence of P.Ws. 8, 9, 10 and the call details, Ext. 3 series together with photograph, material Ext. VII is quite sufficient to prove not only the association of Rajesh Ranjan @ Pappu Yadav with Rajan Tiwary but also hatching of conspiracy by Rajesh Ranjan @ Pappu Yadav and co- accused but also its execution by them. 128. Learned counsel submitted that in the preceding paragraphs of the written submissions it has been demonstrated that the judicial confession of appellant Rajan Tiwari was voluntary in nature. The other vital pre-requisite before acting upon a judicial confession is that of his truthfulness and the same can be adjudged in the present case by the ample corroboration available on record in form of eyewitness account of PW 8, PW 9 and PW 10(whose version is also corroborated by testimony of PW – 15 & PW- 16), scientific evidence of ballistic experts (PW-28 & P.W.-33) to the effect that AK-47 was used in the commission of offence, pointing out of various relevant spots by Rajan Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 139 Tiwari, call detail records, recovery of photograph (material Exhibit 7) of appellant Rajan Tiwari from the house of appellant Rajesh Ranjan @ Pappu Yadav, motive of appellant Rajesh Ranjan @ Pappu Yadav to do away with Ajit Sarkar as evinced from his proclamations at public gathering and recovery of the two motor cycles used in commission of offence. It is respectfully submitted that the Hon‘ble Supreme Court has since time immemorial consistently held that corroboration is only a mere rule of prudence which has not crystallized into rule of law of universal acceptance, therefore, the court may act upon the judicial confession even without corroboration, if the same is found to be voluntary and truthful. However, when the said confession is retracted, which inevitably happens in every criminal case, the court may seek some corroboration only as a matter of caution before acting upon it against the maker. The Hon‘ble Supreme Court has pertinently lodged a caveat that the corroboration need not be on every aspect but corroboration on material aspects would suffice. In the present case, as highlighted above there is ample corroboration available on record and therefore the court can safely act upon it. It has been contended on behalf of the appellants that the weapons used in the commission of offence were not recovered by the investigation agency and the same seriously impinges the credibility of the case projected by the prosecution. In this regard it would be profitable to press into service the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 140 observations of the Hon‘ble Supreme Court in its decision reported as Umar Mohammad Vs. State of Rajasthan, (2007) 14 SCC 711 wherein it has been held that where direct evidence in form of testimony of eye witnesses is believable non-recovery of weapons used in commission of offence would pale into insignificance. 129. It has also been contended on behalf of the appellants that the motor cycles used in commission of offence though claimed to have been recovered by CBI have not been produced before the Learned Trial Court and therefore, the said circumstance cannot be proved in accordance with law. It is respectfully submitted that the seizure memos of the recovery of the said motor cycles has been duly proved by the Investigating Officer and relevant witnesses have proved the factum of its recovery in their depositions. Even the accused persons put the circumstance of recovery of motor cycles in their examination under section 313 Cr.P.C. and therefore, it is not the case that the accused persons were not aware of the factum of such recovery. With regard to the contention that it was not produced before the Learned Trial Court, it would be beneficial to recount the observations of the Hon‘ble High Court of Punjab & Haryana in its judgment titled Balraj Singh v. State of Punjab reported as 1982 Cri.L.J. 1374. It was observed that- “…Whether the non-production of a part or the whole of the Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 141 case property in a criminal trial, would by itself, vitiate the conviction of the accused thereafter is the somewhat meaningful issue which has necessitated this reference to the Division Bench…. ….When the aforesaid section 451 of the code itself positively visualizes and sanctifies the non-production of case property in the trial can it then reason-ably be said that a mere inadvertence or omission in producing the same and not exhibiting it in court would per se be fatal to the prosecution case. I do not think so. No principle could be cited before us which would show that the mere exhibition of the case property was so pivotal a thing that the failure to do so would take the very bottom out of a criminal prosecution…. But in the ultimate analysis the issue is one of the prejudice caused to the accused and any failure of justice resulting there from. In this context the question whether such an objection could be, but has not been raised at the earliest stage of trial is of considerable relevance. In a case of innocent or inadvertent non-production of the case property material prejudice is to be shown by the accused in order to claim the vitiation of the conviction. No abstract or absolute rule that “no case property, no conviction,” can possibly be Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 142 raised to the pedestal of a rule of law, because this by itself is likely to occasion a failure of justice. As has been said earlier the substantial issues in a criminal trial like the proof and punishment of crime should not be converted into a plaything of technicalities. If the prosecution has innocently or inadvertently failed to exhibit the case property, yet the accused even though fully represented by counsel makes no objection or grievance thereof at the time of the trial, it would hardly lie in his mouth at the revisional stage to say that all the proceedings stand vitiated even though connived at or wholly condoned by his own conduct.” It is respectfully submitted that as per instructions dated 18.02.1999, the said motorcycles are still presently lying at P.S. K Hat, Purnea in running condition. The position of law with regard to use of a confession of a co-accused against another accused is materially different and is governed by section 30 of the Indian Evidence Act. It has been held by the Hon‘ble Supreme Court that the court must not start with the confession of co-accused and rather the correct approach would be to marshal other evidence independent of the confession and if the court is not prepare to act upon it for any reason then the confession of the co-accused may be taken into account as a circumstance/material (not as evidence in the technical sense) in light Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 143 of which the other evidence can be appreciated and after taking such confession of co-accused into account, the court may feel impelled to act upon the other evidence and render a finding of guilt. The above principles of law with regard to use of a confession against its maker and its limited use against the co-accused can be gathered from a conjoint reading of the following judgments of the