Patna High Court
Sangal Swami @ Vinay Kumar vs The State Of Bihar on 17 February, 2026
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No. 53 of 2020
Arising Out of PS. Case No.-296 Year-2016 Thana- JAHANABAD District- Jehanabad
======================================================
RAJA KUMAR GOSWAMI @ RAJ KUMAR GOSWAMI @ RAJA
GOSWAMI Son of Late Kapil Goswami Resident of Village - Kutwanchak,
P.S. and Distt - Jehanabad.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 5775 of 2019
Arising Out of PS. Case No.-296 Year-2016 Thana- JAHANABAD District- Jehanabad
======================================================
MANISH KUMAR Son of Dhanraj Singh Resident of Village - Gangachak,
P.S.- Masaudhi, Distt.- Patna.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 16 of 2020
Arising Out of PS. Case No.-296 Year-2016 Thana- JAHANABAD District- Jehanabad
======================================================
SANGAL SWAMI @ VINAY KUMAR S/o - Binod Singh @ Binod Kumar
Resident of Village- Badi Sangat, P.S.- Jehanabad, Distt- Jehanabad.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 314 of 2020
Arising Out of PS. Case No.-296 Year-2016 Thana- JAHANABAD District- Jehanabad
======================================================
PRINCE KUMAR @ NEPALI Son of Kamal Singh Resident of Village and
P.O. - Jhutpani, P.S. and District - Tari, Nepal.
... ... Appellant/s
Patna High Court CR. APP (DB) No.53 of 2020 dt.17-02-2026
2/71
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 359 of 2020
In
CRIMINAL APPEAL (SJ) No.376 of 2020
Arising Out of PS. Case No.-296 Year-2016 Thana- JAHANABAD District- Jehanabad
======================================================
HARE RAM YADAV Son of Sri Ram Pravesh Yadav Resident of Village-
Nizamuddinpur, P.O. and P.S.- Jehanabad, District- Jehanabad.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 566 of 2021
In
CRIMINAL APPEAL (SJ) No.217 of 2020
Arising Out of PS. Case No.-296 Year-2016 Thana- JAHANABAD District- Jehanabad
======================================================
RAHUL KUMAR @ FURRI @ FUGGI S/o Late Dhaneshwar Paswan R/o
village- Tikhkhora, P.S.- Masaudhi, Distt.- Patna
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance:
(In CRIMINAL APPEAL (DB) No. 53 of 2020)
For the Appellant/s : Mr. Pramod Kumar Singh, Advocate
Mr. Amit Kumar, Advocate
For the Respondent/s : Km. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (SJ) No. 5775 of 2019)
For the Appellant/s : Mr. Ansul, Sr. Advocate
Mr. Anuj Kumar, Advocate
Mrs. Priyanka Singh, Advocate
Mr. Javed Aslam, Advocate
For the Respondent/s : Mr. Syed Ashfaque Ahmad, APP
Patna High Court CR. APP (DB) No.53 of 2020 dt.17-02-2026
3/71
(In CRIMINAL APPEAL (DB) No. 16 of 2020)
For the Appellant/s : Mr. Ramakant Sharma, Sr. Advocate
Mr. Lakshmi Kant Sharma, Sr. Advocate
Mr. Rajesh Kumar, Advocate
Mr. Rakesh Kumar Sharma, Advocate
For the Respondent/s : Mr. Dilip Kr. Sinha, APP
(In CRIMINAL APPEAL (DB) No. 314 of 2020)
For the Appellant/s : Mr. Kanhaiya Pandey, Advocate
Mr. Rakesh Narayan Singh, Advocate
Mrs. Usha Kumari, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, APP
(In CRIMINAL APPEAL (DB) No. 359 of 2020)
For the Appellant/s : Mr. Ashok Kumar, Advocate
For the Respondent/s : Mrs. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 566 of 2021)
For the Appellant/s : Mr. Manoj Kumar, Advocate
Mr. Raj Narayan Mishra, Advocate
Mr. Uday Kumar, Advocate
Ms. Bhawna Jha, Advocate
For the Respondent/s : Mr. Sujit Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date: 17-02-2026
The aforesaid appeals preferred under Section 374 (2) of
the Code of Criminal Procedure, 1973 (hereinafter referred to as
the 'CrPC') arise out of the same judgment of conviction and
order of sentence dated 12.12.2019 and 13.12.2019 respectively,
hence the aforesaid appeals have been heard together and are
being disposed off by the present common judgment. By the said
Patna High Court CR. APP (DB) No.53 of 2020 dt.17-02-2026
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judgment of conviction dated 12.12.2019, passed by the Learned
Additional District and Sessions Judge-1st, Jehanabad (herein
after referred to as the 'Ld. Trial Judge') in Sessions Trial No. 76
of 2017/14 of 2017 (arising out of Jehanabad P.S. Case No. 296
of 2016), the appellants of the first, third and fourth case have
been convicted under Sections 302/201/120(B) read with Section
149 of the Indian Penal Code (hereinafter referred to as the
'IPC') while the appellants of the second, fifth and sixth case
have been convicted under Sections 201/120(B) read with
Section 149 of the IPC. By the order of sentence dt. 13.12.2019,
the appellants of the 1st, 3rd and 4th case have been sentenced to
undergo rigorous imprisonment (RI) for life under Sections 302/
120(B) read with Section 149 of the IPC with fine of Rs.
10,000/- each and in default of payment of the same they have
been further directed to undergo RI for one year each as also
they have been sentenced to undergo RI for 5 years each under
Sections 201/120(B) read with Section 149 of the IPC with fine
of Rs. 5,000/- each and in default of payment of the same they
have been further directed to undergo RI for six months each.
Both the sentences have been directed to run concurrently. As far
as the appellants of the 2nd, 5th and 6th case are concerned, by the
order of sentence dt. 13.12.2019, they have been sentenced to
Patna High Court CR. APP (DB) No.53 of 2020 dt.17-02-2026
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undergo RI for five years each under Sections 201/120(B) read
with Section 149 of the IPC with fine of Rs. 5,000/- each and in
default of payment of the same they have been further directed
to undergo rigorous imprisonment for six months each.
2. The short facts of the case as per the written report of the
informant of the present case, namely Vidhi Kumar (PW-6), filed
before the Officer-in-Charge Jehanabad Police Station is that on
the previous day i.e. 22.06.2016, at about 08:00 p.m. in the night
his brother Mantu Kumar aged about 33 years had told his wife
Sheela Kumari (PW-4) that he has been called on telephone by
Mithilesh Kumar for taking money, whereafter he had left the
house, however when he did not return late in the night, his wife
told the informant about the same, whereupon all the family
members started searching for the said Mantu Kumar but he
could not be found. The informant has further stated that the
mobiles of Mantu Kumar bearing mobile nos. 8083588035 and
7091204544 were found to be switched off. He has also stated
that when he had enquired from Mithilesh about his brother, he
told him that he had to pay a sum of Rs. 25,000/- which he had
given to Mantu Kumar near ICICI Bank, Jehanabad and then
they had come up to Mallahchak More, whereafter the said
Mantu Kumar had left on the pretext of purchasing vegetables,
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after which he cannot say about his whereabouts. The informant
has next stated that his brother Mantu Kumar had left the house
on a black colour Bajaj Pulsar motorcycle, whereafter he is
missing. On the basis of the said written report of the informant,
an FIR bearing Jehanabad P.S. Case No. 296 of 2016 was
registered on 23.06.2016 at 10:30 am under Section 365 of the
IPC against unknown persons.
3. The police had then conducted investigation and upon
finding the case to be true had filed a charge sheet dated
30.09.2016
under Sections 302, 201, 120B, 467, 468 and 471 of
the Indian Penal Code and under Section 66 of the Information
Technology Act, 2000 (hereinafter referred to as the “I.T. Act“)
against the aforesaid six appellants. The learned Trial Court upon
considering the chargesheet and the materials available on record
had taken cognizance of the aforesaid offences vide order dated
19.12.2016 against all the said six appellants, whereafter the case
was committed to the Court of Sessions vide order dated
31.01.2017 and was numbered as Sessions Trial No. 76 of 2017 /
14 of 2017. The learned Trial Court had then framed charges
against the aforesaid appellants vide order dated 17.02.2017
under Sections 302/149, 201/149, 467/149, 468/149,471/149 and
120(B)/149 of the IPC and Section 66 of the I.T. Act.
Patna High Court CR. APP (DB) No.53 of 2020 dt.17-02-2026
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4. During the course of trial, the prosecution has examined
10 witnesses. While PW-1 Ram Chandra Prasad is father of the
deceased, PW-2 Babloo Kumar is maternal brother of the
deceased, PW-3 Kumkum Devi is wife of the informant and
Bhabhi of the deceased, PW-4 Sheela Kumari is wife of the
deceased, PW-6 Vidhi Kumar is the informant and brother of the
deceased, PW-5 Sri Sandeep Patel is the Judicial Magistrate who
had recorded the statements of the appellants of the 1st and 6th
case under Section 164 of the Cr.PC, PW-7 Sanjay Kumar is the
Investigating Officer of the present case and PW-8 Munna
Kumar is the Operator posted at the office of the Superintendent
of Police, Jehanabad. As far as PW-9 Ganesh Das is concerned,
he is the Chaukidar of Jehanabad Police Station while PW-10
Ram Dhyan Sharma is an Advocate Clerk, a formal witness.
5. The learned senior counsel Sri Ramakant Sharma,
appearing for the appellant of the third case, namely Sangal
Swami @ Vinay Kumar has submitted that there are no eye
witnesses in the present case and the same is solely based on
circumstantial evidence, however a bare perusal of the evidence
on record would show that the link and chain in the series of
circumstances are wholly missing and the Investigating Officer
has tried to pick up circumstances from here and there and
Patna High Court CR. APP (DB) No.53 of 2020 dt.17-02-2026
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connect them, nonetheless he has utterly failed to do so. In this
regard the evidence of the Investigating Officer i.e. PW-7 has
been relied upon and reference has been made to paragraphs no.
3, 4, 10, 12(4), (5) and (8) to submit that the Investigating
Officer has though tried to link the mobile numbers of various
accused with the alleged occurrence, however it is apparent that
the link regarding the appellants having made calls to the
deceased Mantu Kumar is missing. It is also submitted that the
Investigating Officer, in his evidence has stated that the last call
was made to the mobile number of the deceased by the suspect
mobile number, i.e. 7519391443, however his evidence would
also show that upon investigation the said mobile number was
found to be registered in the name of one Kamlesh Kumar but
the whereabouts of the said Kamlesh Kumar is not known till
date. It is next submitted by referring to paragraphs no. 16, 17,
20 and 22 of the evidence of the Investigating Officer that
though the house of the appellant of the first case was inspected,
however no incriminating articles were recovered therefrom.
6. It is next submitted by the learned senior counsel Sri
Ramakant Sharma that though the handset of Sangal Swami was
seized, after he was arrested and seizure list was also prepared
but the seizure list witnesses have not been examined which has
Patna High Court CR. APP (DB) No.53 of 2020 dt.17-02-2026
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caused grave prejudice to the defense. Reference has next been
made to paragraph nos. 37 and 40 of the evidence of PW-7
Sanjay Kumar (I.O.) to submit that the whereabouts of Kamlesh
Kumar, in whose name the suspect sim, from which last call was
made to the deceased, has been registered has neither been
traced nor examined. The learned Sr. counsel for the appellant
has also drawn attention to paragraphs no. 42 to 46 of the
evidence of PW-7 Sanjay Kumar (I.O.) to submit that though
reference has been made to the tower location of the mobile of
the deceased to be near Mallahchak water tank, i.e. near his
house and then his mobile’s tower location was not found at
Hospital Road from 08:00 p.m. onwards of 22.06.2016, however
his wife had talked in the same night at 08:37 p.m. and the tower
location has been found to be at Shekh Alam Chauk but the last
call made on the mobile of the deceased from the suspect mobile
number is at 08:12 p.m. in the night when the tower location has
been found to be at Mallahchak, nonetheless all these
circumstances do not lead to any conclusion.
7. The learned senior counsel for the appellant of the third
case has further submitted, by referring to other paragraphs of
the evidence of PW-7 Sanjay Kumar (I.O.) that the dead body of
the deceased itself has not stood identified, especially in view of
Patna High Court CR. APP (DB) No.53 of 2020 dt.17-02-2026
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the evidence of PW-7 Sanjay Kumar (I.O.) as contained in
paragraph no. 53 of his deposition to the effect that the articles
which were seized by the police at the time of cremation of the
dead body do not match with the articles which have been
mentioned in the inquest report, more so in column nos. 5 and 7.
In fact in paragraph no. 57, the Investigating Officer has
admitted that the tower location of the mobiles of the deceased
and Sangal Swami was never found to be together. The learned
senior counsel has next referred to paragraph no. 69 of the
evidence of PW-7 Sanjay Kumar (I.O.) with a view to discredit
the testimony of PW-7 Sanjay Kumar (I.O.) and show that he is
not a truthful witness inasmuch as PW-7 has stated in the said
paragraph that after he had recovered the mobile phone of
deceased Mantu Kumar, he had called for the documents of the
said mobile phone from the wife of the deceased and had
compared the IMEI number and established the identity of the
said mobile, whereafter the documents were returned back to the
wife of the deceased, however surprisingly he has admitted that
he had not noted the said facts in the case diary.
8. At this juncture, the learned senior counsel for the
appellant of the third case has referred to a judgment rendered in
the case of Aghnoo Nagesia vs. State of Bihar, reported in AIR
Patna High Court CR. APP (DB) No.53 of 2020 dt.17-02-2026
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1966 SC 119 to submit that the Hon’ble Apex Court has held
therein that the provisions contained in Sections 25, 26 and 27 of
the Indian Evidence Act, 1872 seem to proceed upon the view
that confessions made by an accused to a police officer or made
by him while he is in the custody of a police officer are not to be
trusted and should not be used in evidence against him. The
learned senior counsel for the appellant has next referred to a
judgment rendered by the Hon’ble Apex Court in the case of
Abdul Nassar vs. State of Kerala & Anr, reported in AIR 2025
SC 691, paragraph no. 30 whereof is reproduced herein below:-
“30. We deem it essential to enunciate the principles that
courts must adhere to while appreciating and evaluating
evidence in cases based on circumstantial evidence, as
follows:
(i). The testimony of each prosecution and defence
witness must be meticulously discussed and analysed.
Each witness’s evidence should be assessed in its
entirety to ensure no material aspect is overlooked.
(ii). Circumstantial evidence is evidence that relies on
an inference to connect it to a conclusion of fact.
Thus, the reasonable inferences that can be drawn
from the testimony of each witness must be explicitly
delineated.
(iii). Each of the links of incriminating circumstantial
evidence should be meticulously examined so as to
find out if each one of the circumstances is proved
individually and whether collectively taken, they forge
an unbroken chain consistent only with the hypothesis
of the guilt of the accused and totally inconsistent
Patna High Court CR. APP (DB) No.53 of 2020 dt.17-02-2026
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with his innocence.
(iv). The judgment must comprehensively elucidate
the rationale for accepting or rejecting specific pieces
of evidence, demonstrating how the conclusion was
logically derived from the evidence. It should
explicitly articulate how each piece of evidence
contributes to the overall narrative of guilt.
(v). The judgment must reflect that the finding of guilt,
if any, has been reached after a proper and careful
evaluation of circumstances in order to determine
whether they are compatible with any other
reasonable hypothesis.”
9. Thus, it is submitted by the learned senior counsel that the
links of the incriminating circumstantial evidence should be
examined so as to find out if each one of the circumstances has
stood proved individually and whether collectively taken, they
forge an unbroken chain consistent only with the hypothesis of
the guilt of the accused and totally inconsistent with his
innocence. It is submitted that as far as the present case is
concerned, the link in the chain of circumstances is missing and
none of the circumstances have stood proved independently,
hence the circumstantial evidence is not enough to prove the
guilt of the appellants beyond all reasonable doubt. It is next
submitted that the motive behind the occurrence in question is
also absent as is apparent from the evidence of the prosecution’s
witnesses, which also points towards the missing link in the
chain of circumstances. It is also argued that a bare perusal of
Patna High Court CR. APP (DB) No.53 of 2020 dt.17-02-2026
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the statement of the appellant of the third case, recorded under
Section 313 of the Code of Criminal Procedure would show that
firstly the incriminating evidence available against the said
appellant has not been put to him and secondly he has in his
defence stated that the police used to come repeatedly at his
house and used to harass him and his family members leading to
him surrendering before the Court on 27.07.2016, however he
was not remanded since the Court told him that there is no
evidence against him, whereafter he had gone to Jehanabad
Town Police Station and had told the police that if there is no
evidence against him then why he and his family members are
being harassed, whereupon the police personnel had caught him
and had forcibly got his signature made on a blank sheet of paper
but he had not given any confessional statement before the
police. In this regard, reference has been made by the learned
senior counsel for the said appellant to a judgment reported in
AIR 2020 SC 4535 (Maheshwar Tigga vs. State of Jharkhand),
paragraph no. 9 whereof is reproduced herein below:-
“9. This Court, time and again, has emphasised the
importance of putting all relevant questions to an
accused under Section 313 CrPC. In Naval Kishore Singh
vs. State of Bihar [(2004) 7 SCC 502], it was held to be
an essential part of a fair trial observing as follows:-
Patna High Court CR. APP (DB) No.53 of 2020 dt.17-02-2026
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CrPC was done in the most unsatisfactory manner.
Under Section 313 CrPC the accused should have
been given opportunity to explain any of the
circumstances appearing in the evidence against him.
At least, the various items of evidence, which had
been produced by the prosecution, should have been
put to the accused in the form of questions and he
should have been given opportunity to give his
explanation. No such opportunity was given to the
accused in the instant case. We deprecate the practice
of putting the entire evidence against the accused put
together in a single question and giving an
opportunity to explain the same, as the accused may
not be in a position to give a rational and intelligent
explanation. The trial Judge should have kept in mind
the importance of giving an opportunity to the
accused to explain the adverse circumstances in the
evidence and the Section 313 examination shall not
be carried out as an empty formality. It is only after
the entire evidence is unfurled the accused would be
in a position to articulate his defence and to give
explanation to the circumstances appearing in
evidence against him. Such an opportunity being
given to the accused is part of a fair trial and if it is
done in a slipshod manner, it may result in imperfect
appreciation of evidence.”
10. Therefore, it is submitted by the learned senior counsel,
appearing for the appellant of the 3rd case that the incriminating
circumstances having not been put to the said appellant, the
same cannot be used to convict the said appellant. The other
issue raised by the Ld. senior counsel is that the call detail
records have not stood proved in absence of certification under
Section 65B of the Indian Evidence Act, 1872. Reference in this
Patna High Court CR. APP (DB) No.53 of 2020 dt.17-02-2026
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connection has been made to a judgment rendered by the
Hon’ble Apex Court in the case of Arjun Panditrao Khotkar vs.
Kailash Kushanrao Gorantyal & Ors., reported in (2020) 7
SCC 1. The Ld. Sr. counsel for the appellant has next submitted
that there should be no if and but and the evidence must be
pointing towards the guilt of the accused persons and only then it
can be said that their guilt has been proved beyond all reasonable
doubt. Reference in this connection has been made to a judgment
rendered by the Hon’ble Apex Court in the case of Sujit Biswas
vs. State of Assam, reported in AIR 2013 SC 3817 to contend
that suspicion, however grave it may be, cannot take the place of
proof and there is a large difference between something that
“may be” proved and something that “will be” proved. Thus, it is
submitted that in a criminal trial, suspicion no matter how
strong, cannot and must not be permitted to take place of proof
since the mental distance between “may be” and “must be” is
quite large and divides vague conjectures from sure conclusions.
It is thus submitted that as far as the present case is concerned,
barring suspicion there is no concrete proof to substantiate the
guilt of the accused persons/appellants.
11. The learned counsel appearing for the appellant of the
first case namely Raja Kumar Goswami, has though adopted the
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arguments advanced by the learned senior counsel appearing for
the appellant of the third case, however in addition it has been
submitted that the link in the chain of circumstances is not
complete, hence the said appellant cannot be convicted on the
basis of circumstantial evidence and as far as ocular evidence is
concerned, there is no eye witness to the occurrence in question,
especially with regard to killing of the deceased. The learned
counsel has referred to paragraph no. 110 of the deposition of the
Investigating Officer (PW-7) to submit that he has stated that no
communication was made from the mobile of Raja Goswami
bearing no. 9097265546 to the mobile number of the deceased as
has been observed from the call detail records. In any view of
the matter, it is submitted that the call detail records have not
stood proved in absence of certification under section 65B of the
Indian Evidence Act. Thus, it is submitted that the evidence on
record does not prove the guilt of the said appellant beyond all
reasonable doubt.
12. The learned senior counsel appearing for the appellants of
the second case and fourth case, namely Manish Kumar and
Prince Kumar @ Nepali has submitted that the dead body found
in the present case has itself not been identified and there is no
evidence on record to connect the identity of the said dead body
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with that of the deceased brother of the informant. It is next
submitted by referring to paragraph No. 53 of the evidence of the
Investigating Officer (PW-7) that the articles which were given
by the informant to the Investigating Officer at the time of
cremation and were seized by the Investigating Officer (PW-7)
do not match with the articles found on the body of the deceased
at the time of preparation of the inquest report, as has been
mentioned in column nos. 5 and 7 thereof. Thus, the same also
goes to show that the identity of the dead body has not stood
established. The Ld. senior counsel has referred to paragraph
nos. 3, 9, 99 and 100 to 102 of the evidence of PW-7 (IO) to
submit that there is no connection in between the mobile number
of the present appellants and the calls made to the deceased
Mantu Kumar, hence even the call detail records do not prove
that the said appellants and the deceased had been together at the
time of the alleged occurrence.
13. The learned senior counsel appearing for the appellants of
the 2nd and 4th case has next submitted by referring to the
evidence of PW-7 (IO), specially paragraph no. 67 thereof that
even if it is accepted for a moment that the confession of the
appellant Manish Kumar had led to recovery of the parts of a
motorcycle, nonetheless the fact remains that it is yet to be
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ascertained as to whether the said parts belonged to the
motorcycle being used by the deceased. Reference is also made
to paragraph no. 69 of the evidence of the PW-7 (IO) to submit
that after the mobile phone of the deceased was recovered, the
Investigating Officer had called for its documents from his wife
which she had produced and then the identity of the mobile
phone was tried to be established by matching the IMEI number,
however, the I.O. has stated that neither he had recorded the said
factum in the case diary nor the said document was retained by
him, hence it is submitted that the identity of the mobile phone
has also not stood established. It is next contended that as far as
the appellant Manish Kumar is concerned, the ingredients of
Section 201 of the IPC do not stand established inasmuch as
knowledge being foundation of the same, is completely missing.
14. As far as the 5th case, i.e the case of Hare Ram Yadav is
concerned, the learned counsel appearing for the said appellant
has referred to paragraphs no. 115 and 117 of the evidence of
PW-7 to submit that the Investigating Officer has stated in his
evidence that none of the witnesses have named the said
appellant and no conversation had taken place in between the
said appellant and the deceased. In fact, upon a court question,
PW-7 (IO), in paragraph no. 119 has stated that no witness has
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alleged or for that matter seen the said appellant taking the
deceased in his car. Thus, it is submitted that no evidence is
available on record to prove the guilt of the said appellant. As
far as the appellant of the sixth case, namely Rahul Kumar is
concerned, reference has been made to paragraph no. 106 of the
evidence of PW-7 (I.O.) to submit that none of the eight
witnesses have taken the name of the said appellant to be having
any role in the alleged occurrence. Therefore, it is submitted that
the said appellant is not guilty of the offences alleged much less
there being any evidence on record to prove his guilt.
15. Per contra, the learned APP for the State Km. Shashi
Bala Verma has submitted that admittedly there are no eye
witnesses to the alleged occurrence, however there is enough
circumstantial evidence to pin the aforesaid appellants and
prove their guilt beyond all reasonable doubt. The Ld. APP for
the State has referred to call detail records of the various
appellants, as has been detailed in the evidence of the
Investigating Officer i.e. PW-7 to submit that the complicity of
the appellants of all the aforesaid appeals stands proved beyond
all reasonable doubt. It is also submitted that the confessional
statement of the appellants has led to various recoveries as can
be culled out from the evidence of PW-7 i.e. the Investigating
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Officer, thus invoking the principles, as contained in Section 27
of the Indian Evidence Act, 1872 the said circumstance would
be enough to prove the guilt of the appellants beyond all
reasonable doubt. Thus, it is submitted that the judgment of
conviction and order of sentence rendered by the Ld. Trial Judge
is fit to be upheld.
16. Besides hearing the learned senior counsels/counsels for
the parties, we have minutely perused both the evidence i.e.
ocular and documentary. Before proceeding further, it is
necessary to cursorily discuss the evidence led by the
prosecution.
17. PW-1 Ram Chandra Prasad has stated in his evidence that
the occurrence dates back to one year at about 9:00 – 9:30 in the
night when he was at his home and his son had gone to purchase
vegetable but he did not return back, whereafter they had started
searching for him. PW-1 has further stated that at the time his
son was leaving the house, he had said that he has been called
by Mithilesh Kumar at ICICI Bank for giving money to him.
PW-1 has next stated that his son could not be found and
ultimately his dead body was found near Masaurhi on the next
day whereafter, postmortem examination was conducted. PW-1
has stated that Mithilesh Kumar along with Sangal Swami,
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Rahul Kumar and other accused persons hatched a conspiracy
together and killed his son as also one Goswami of Udwantchak
is an accomplice as well. PW-1 has recognized the accused
persons standing in the dock. In cross-examination PW-1 has
stated that he had made his statement before the Police, the
name of his son is Mantu and his wife has filed the case. PW-1
has further stated that he had not seen the killing taking place
with his own eyes. We find that nothing substantial has emerged
out of the further cross examination of the present witness.
18. PW-2 Bablu Kumar has stated in his examination-in-chief
that the occurrence dates back to more than one year at about
08:00 p.m. in the night when he was at his home and at that time
wife of Mantu rang him and told him that Mantu was called by
Mithilesh Kumar by ringing him on his mobile phone and he
had told Mantu that he would give money. After the deceased
did not return, PW-2 had gone to the market but he could not
find the deceased and when the deceased did not return back
even on the next day, he along with others had gone to the
police station and given information, whereafter police had told
them that one dead body is lying at Dhanarua Police Station,
whereupon they had gone to the police station and found the
dead body of Mantu lying there. He had recognized Prince and
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Sangal, however he declined to recognize others. PW-2 has also
stated that he had given his statement before the police and wife
of Mantu suspects that Mithilesh Kumar has killed Mantu in
connivance with other accused persons. He has also stated that
the teeth of the deceased had broken and his entire body had
been burnt. In cross examination, PW-2 has stated that he had
not seen Mantu going along with Mithilesh, however Mantu had
left house at 08:00 p.m. which was disclosed to him by the
family members of Mantu. He has also stated that he had
himself not seen the killing of the deceased taking place by his
own eyes. He has next stated that he had not seen the accused
persons before, however he has recognized them because of
their photographs having become viral. He has also stated that
he is neighbor of Mantu and his cousin brother in relation.
19. PW-3 Kumkum Devi is wife of the informant and sister-
in-law of the deceased who has stated in her examination-in-
chief that the occurrence dates back to more than one year i.e.
22.06.2016 at about 08:00 p.m. in the night when she was at her
house and her brother-in-law Mantu Kumar had gone outside
the house near ICICI bank upon being called by the Mithilesh
Kumar, however he did not return back. She has stated that
Mithilesh Kumar had called Mantu for giving money and the
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deceased had disclosed about the same at his home. On the next
day at about 10:00 pm in the night wife of deceased told PW-3
that Mantu’s phone is switched off and he has not returned,
whereafter search was made and Mithilesh was called over
phone, after which he said that he had given money to Mantu
and then Mantu had gone away. On 24.06.2016, the dead body
of the deceased was found under the jurisdiction of Dhanarua
Police Station, where the same was kept by the Police and when
they received information, they went to the Police Station. PW-3
has stated that she came to know about the persons who had
killed her brother-in-law from the newspaper, wherein the
names of the appellants were printed & the deceased was killed
by Mithilesh Kumar in connivance with the other appellants.
20. PW-4 Sheela Kumari i.e. the wife of the deceased has
deposed on similar lines as that of PW-3 Kumkum Devi, hence
the same is not being repeated again for the sake of brevity. In
addition PW-4 has stated in her evidence that after her husband
had gone upon being called by Mithilesh Kumar and had not
returned back she rang Nilesh Kumar and asked him about her
husband, whereupon he said that the deceased was not with him,
whereafter PW-4 had gone to the house of Mithilesh Kumar in
the morning and had asked the wife of Mithilesh Kumar as to
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why her husband was called by Mithilesh Kumar, whereupon
she told her that he is not at home. PW-4 had then gone to
Bachpan Kids School where brother of Mithilesh Kumar,
namely Nishi Kumar told her, upon being asked about the
whereabout of Mithilesh Kumar that she should search for her
husband. PW-4 has further stated that on 24.06.2016, at about
10:00 a.m. in the morning she came to know that one dead body
has been recovered at Dhanarua, whereafter she along with her
family members had gone there and seen the dead body as also
had identified the same, where she came to know that the
appellants have killed her husband. PW-4 has also stated that
Mithilesh Kumar and Nilesh Kumar along with other accused
persons have given effect to the occurrence in question. PW-4
has also stated that she had given her statement before the
police. She has though not identified the accused persons
standing in the dock but has said that Sangal Swamy along with
two other accused persons are present. PW-4 Sheela Kumari has
also stated that the accused persons have confessed their crime
before the Police. Upon a court question being put to PW-4 as to
whether she had disclosed the name of the accused before the
Police, she did not reply. In paragraph-9 of her cross-
examination PW-4 has stated that Mithilesh Kumar and Nilesh
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Kumar had taken away her husband after calling him, however
there is no prior enmity amongst them. PW-4 has also stated that
she does not recognize Rahul and Hare Ram.
21. PW-5 Sandeep Patel is the Judicial Magistrate, 1 st Class
who had recorded the statement of the accused persons under
Section 164 Cr.P.C. He has stated that on 20.07.2016 he was
posted as Judicial Magistrate-1st Class, Jehanabad Civil Court
and on that day he had recorded the statement of Raja Kumar
Goswami U/s. 164 Cr.P.C. PW-5 has stated that Raja Kumar
Goswami had disclosed in his statement made before him that
he used to run a vending shop near Matkori Kuan in front of
Amit Recharge and Cold Drink shop and there only the house of
Sangal Swami is situated and 15 days prior to the incident
Sangal Swami had told him that he would bring one person who
shall be possessing a sum of Rs. 8,00,000/- and if they are able
to extract the said money, they would derive lot of benefit as
also they would torture him at the house of Raja Kumar
Goswami which is vacant. Raja Kumar Goswami has further
stated that at first, he was not willing to give effect to the said
occurrence, however upon him being offered money he became
ready to do so. As per the pre-plan, on 20.6.2016 Sangal Swami
got a new mobile of Micromax company from A-One Mobile
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Centre situated at Matkori Kuan, Hospital Road as also had
obtained one fake sim card from a shop situated next to ancient
Shiva Temple at Jehanabad and on 20.06.2016 at about 7/8:00
p.m. in the evening he rang on mobile no. 7519391443 and
8083588035 and called the said person near Matkori Kuan and
as per the plan Prince Kumar @ Nepali, Bholu @ Ravi and
Rohit Kumar had also come along with him to his room.
Thereafter, Sangal Swami brought the said person on his
motorcycle to the room of Raja Kumar Goswami and as soon as
they arrived at the room, all the accused persons had pushed
Mantu, caught hold of his hands and legs, whereafter they had
shut his mouth and then Sangal Swami had made him sniff
powder as also had injected an injection. The plan was that
when Mantu regains consciousness, they would ask him about
the password of his ATM card and then they would take out
money and kill him, however Raja Kumar Goswami has said
that he did not know about the plan of killing Mantu. He has
also stated that on account of the doses of powder and injection
being excessive Mantu did not regain consciousness and he
died, whereafter call was made and one Hare Ram Yadav was
called along with a vehicle, whereupon the dead body of Mantu
was wrapped in a bedsheet and loaded on a Tavera vehicle and
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taken to Moriyawa-Dhanarua, after which the dead body was
thrown towards the southern side at a distance of one kilometer,
after which the accused persons had sprinkled oil over the dead
body and burnt it. PW-5 has next stated that the said
confessional statement made by Raja Kumar Goswami was read
over to him and upon finding the same to be correct he had put
his signature which has been identified and marked as Exhibit-1.
22. PW-5 has further stated in his testimony that on
30.07.2016 he had recorded the statement of Rahul Kumar @
Fuggi under Section 164 Cr.PC wherein he has stated that on
23.06.2016, he had made available one black colour Pulsar
motorcycle to Manish Kumar and he was told that the same
belongs to one person who is resident of Jehanabad, whose
murder has been committed by his relative, hence the said
vehicle is required to be hidden. Thereafter, Manish Kumar had
dismantled the parts of the said motorcycle and buried it on the
banks of Punpun river in the sand near Middle School, Tiskhora,
which was recovered by the police. PW-5 has stated that Rahul
Kumar had read over his statement and upon finding the same to
be correct had put his signature, which has been marked as
Exhibit-1/1. In cross-examination, PW-5 has stated in paragraph
no. 3 that before recording the statement he had told the accused
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persons that their statements can also be used against them and
after having told them about the repercussions, he had written
whatever was stated by the accused persons. In paragraph no. 5
of his cross-examination, PW-5 has stated that he had given
enough time to the accused persons to understand the things,
prior to recording of their statements. In paragraph no. 6 of his
cross-examination, PW-5 has stated that before recording the
statement he had satisfied himself that the accused persons had
been produced before the Chief Judicial Magistrate and
according to his direction they were being produced before him.
He has also stated that he had recorded the statement of Raja Kr.
Goswami and had made him understand that his statement can
be used against him and this fact has though not been written at
the beginning of the statement of the said persons, however the
same has been mentioned after recording of the statement. In
paragraphs no. 8 and 9, PW-5 has stated that only after the
accused persons were satisfied and had requested to record the
statement, he had recorded their statement U/s. 164 Cr.P.C.
23. PW-6 Vidhi Kumar (informant) has stated in his evidence
that the occurrence dates back to 22.06.2016 and Mantu Kumar
is his younger brother who has been killed. On 22.6.2016 Mantu
Kumar had left the house at 08:00 p.m. in the night and he came
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to know about Mantu Kumar being killed on 24.6.2016. PW-6
has stated that Mithilesh Kumar had rang his younger brother
and called him to give money since he was in possession of the
money of Mantu and when his younger brother did not come
back, he first rang Mithilesh but on that day his mobile was
switched off and then he rang his brother, whereupon he had
requested him to get Mithilesh to talk to him, after which
Mithilesh had talked with him at 11:00 p.m. and had told him
that he had called his younger brother at ICICI bank and given
him a sum of Rs. 25,000/-, whereafter he had left him at
Mallahchak. PW-6 has next stated that on 23.06.2016, he had
filed a written report at the police station which he has identified
and has stated that the same is in his writing and bears his
signature, which has been marked as Exhibit-2. He has also
stated that he came to know about his younger brother being
killed from the newspaper and that his dead body is lying near
Moriyawa village under Dhanarua Police Station, whereafter he
had gone to the Dhanarua Police Station and identified the dead
body of his brother. The dead body was brought to Jehanabad
and postmortem was conducted. PW-6 has also stated that
conspiracy pertaining to killing of his brother was hatched by
Mithilesh Kumar and Sangal Swami as also Prince Kumar @
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Nepali and Raja Kumar Goswami. PW-6 has identified Sangal
Swami standing in the dock who used to come often with his
brother, however PW-6 could not recognize the other five
accused persons standing in the dock. In cross-examination, PW-
6 has stated that the place where the dead body of his brother
was recovered is at a distance of about 35 kilometers from
Jehanabad. In paragraph no. 5 of his cross-examination, PW-6
has stated that he had not seen anyone killing his brother and he
does not know Prince Kumar @ Nepali from before as also he
does not recognize him. In para no. 12 of his cross-examination,
PW-6 has stated that the police had made enquiries from him
even on second occasion but he has not named any accused
person in his second statement. In para no. 13, PW-6 has stated
that he is making statement regarding Sangal Swami for the first
time. In para no. 14 of his cross-examination, PW-6 has stated
that he had never contacted Sangal Swami and he and his family
members had never made any statement against Sangal Swami
before the police but one boy had given such statement. In
paragraph no. 16 of his cross-examination, PW-6 has stated that
he had not seen the occurrence with his own eyes and one
mobile was recovered from the house of Raja Kumar Goswami.
In paragraph no. 18 of his cross-examination, PW-6 has stated
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that he has not stated before the police, in his re-statement that
conspiracy was hatched and his brother was killed.
24. PW-7 Sanjay Kumar is the Investigating Officer of the
present case and he has stated in his evidence that on
23.06.2016, he was posted at Jehanabad Police Station as Sub-
Inspector of Police and had assumed the investigation of
Jehanabad P.S. Case No. 296 of 2016, whereafter he had
mentioned the F.I.R. in the case diary and then he had gone to
the first place of occurrence i.e. the house of the informant
situated at Mallahchak from where Mantu Kumar had gone to
collect money from Mithilesh Kumar after disclosing about the
same to his wife (PW- 4). PW-7 had recorded the statement of
the informant wherein he had supported the case of prosecution
and had stated that the friends of the deceased namely, Santosh,
Nilesh, Bunty, Abhishek and Mithilesh Kumar are involved in
the occurrence in question and Mithilesh Kumar has made
Mantu to disappear. PW-7 has stated that he had recorded the
statement of the wife of the deceased (PW-4) who had
supported the contents of the F.I.R. and had expressed her
suspicion regarding involvement of Mithilesh Kumar @ M.
Kumar, Abhishek Kumar, Nilesh Kumar @ Bablu, Santosh
Kumar & Bunty Kumar. PW-7 had also recorded the statement
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of the father of the deceased, i.e PW-1, wherein he has named
Mithilesh Kumar and Nilesh Kumar @ Bablu to be responsible
for abducting Mantu Kumar. PW-7 had recorded the statement
of PW-3 as well, who has named Mithilesh Kumar and
Abhishek Kumar as the persons who had abducted Mantu
Kumar. PW- 7 had next recorded the statement of PW- 2 and
made inquiries from the local residents, whereafter he had
obtained CDRs of mobile number of Mantu Kumar bearing
mobile nos. 7091204544 and 8083588035 as also that of mobile
numbers of Mithilesh Kumar i.e. 9939744805 and 7654142270.
25. PW-7 has next stated that he found from the call detail
records that deceased had made last call on 22.06.2016 at
8:20:37 p.m. on the mobile phone of Mithilesh Kumar and at
that time the location of Mantu (deceased) was at Mallahchak
Pani Tanki Road i.e. near his house. PW-7 (I.O.) has further
stated that the last location of Mantu’s second mobile Number
i.e. 8083588035 was found west of Teeneri Nadaul, P.S.
Masaurhi. PW-7 has next stated that from analysis of the call
detail records, it has been found that the mobile phone of
Mithilesh Kumar was generally on at night but on the date of
incident i.e. 22.06.2016, it was found to be switched off at 21:36
hours as also was found to be switched on at 08:02 a.m. of
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23.06.2016. In fact, the second mobile number of Mithilesh
Kumar was found switched off after he had received a call at
20:40 hours in the night, whereafter it was switched on at 08:42
a.m. on the next day. PW-7 has also stated that though Mithilesh
Kumar was summoned but he did not appear at the police
station. The newspaper reports had revealed that a dead body
was recovered matching the description of the deceased at a
place situated under the jurisdiction of Dhanarua Police Station.
Thereafter, the Sub-Inspector of Police, Jehanabad Police
Station, namely Banarsi Chaudhary was sent to Dhanarua P.S.
along with the informant to identify the dead body and conduct
further investigation, whereafter the dead body was identified
by the informant and his family members. The inquest report
was then prepared and the same was entered in the case diary,
whereafter the dead body was handed over to the family
members of the deceased. PW-7 has also stated that during
cremation the informant had given the following items,
recovered from the dead body of the deceased:-
(i) a small burnt piece of red bed sheet.
(ii) a white colour handkerchief.
(iii) burnt red colour thread used for making a locket.
26. PW-7 has stated that the informant had told him that it is
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possible that M. Kumar @ Mithilesh Kumar might have
murdered his brother at his house situated at Mallahchak or at
his coaching center and then he would have taken away the
deceased by wrapping him in a bedsheet. PW-7 has also referred
to the second place of occurrence i.e. the agricultural field
situated on the road side, south of village-Moriyawa which is
situated south of Sai Bazar, Patna-Gaya Road and the same
belongs to one Ashok Mahto. PW-7 had reached the D.I.O.
Office at Jehanabad to inquire about the suspect mobile number
7519391443 by which repeated calls were made to the deceased,
whereupon it was found that the same was issued by one Vikas
STD, Unta Bazar on 20.06.2016 and the owner of the said STD
shop accepted that though the sim card of the said mobile
number was issued by him but he did not know as to who had
taken the same. However, the register maintained by the shop
owner shows that the same was issued in the name of one
Kamlesh Kumar. PW-7 has also stated that on the day of
incident i.e. on 22.06.2016 at around 8:30 pm, the deceased
Mithilesh Kumar and Sangal Swami had met and talked with
one another and after some time all the three had sat on a
motorcycle belonging to the deceased and had proceeded
towards the market but on the way Sangal Swami had alighted
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on account of difficulty in sitting on the motorcycle, whereafter
the deceased had dropped Mithilesh Kumar and returned back to
Hospital More. PW-7 has next stated that the suspect mobile no.
7519391443 was used only to call the deceased. In paragraph
no. 12, PW-7 has given an analysis of the suspect mobile no.
9122822273 vis-a-vis its call detail records.
27. PW-7 has also stated that he had reached the D.I.O. office
and examined the CDR/SDR of mobile numbers 9905909212
and 9097265546, whereupon it transpired that both the mobile
numbers were connected to the occurrence in question inasmuch
as the same were used from beginning till the end of the said
occurrence i.e. from 08:00 p.m. on 22.06.2016 to 08:00 a.m. on
23.06.2016 and multiple conversations had taken place with the
following mobile numbers:-9122822273 (Sangal Swami),
7274979182, 7033713507, 9835726904 and 9905909212
(Sangal Swami @ Vinay Kumar). PW-7 has mentioned about
the third place of occurrence, i.e. the house of Raja Goswami
situated at Kutubanchak, located 100 meter north of Arwal
More, Jehanabad. PW-7 has stated that he had recorded the
confessional statement of Sangal Swami who has admitted
regarding his involvement in the alleged crime and the mobile
of the deceased was recovered based on the information
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provided by Sangal Swami. PW-7 has also stated that based on
the information given by Manish Kumar about the whereabout
of the parts of the motorcycle of the deceased and his mobile
phone, the same were recovered. PW-7 had recorded the
confessional statement of the aforesaid appellants as also he had
recorded the statements of the witnesses. PW-7 has proved
various documents produced during the course of his
examination-in-chief including the confessional statements,
seizure list, inquest report, formal F.I.R., Fardbeyan etc. PW-7
had submitted chargesheet qua the aforesaid appellants on
30.09.2016. He has recognized all the accused persons standing
in the dock. PW-7 has next stated that he had tried to recover the
Sim number of mobile number 7519391443 (issued in the name
of Kamlesh Kumar) during the course of investigation but could
not succeed. PW-7 has stated that he had not recorded the
statement of Kamlesh Kumar. PW-7 has also stated that PW-4
Sheela Kumari i.e. the wife of the deceased has admitted that
there was some pre-existing money dispute in between her
husband and Mithilesh Kumar.
28. In para no. 49, PW-7 has stated that it is clear from the
inquest report and statement of S.H.O., Dhanarua Police Station,
namely Lal Mohan Singh that the deceased had received 100%
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burn. In paragraph no. 53, PW-7 has stated that all the articles
which were given to him by the informant during the cremation
of the deceased were not seized by him, however the said items
do not match with the items prescribed in column nos. 5 and 7
of the inquest report as also with the articles mentioned in the
fardbeyan of Lal Mohan Singh, SHO, Dhanarua Police Station.
In paragraph no. 57, PW-7 has stated that the tower location of
the mobile number of the deceased and Sangal Swami were
never found together and location of mobile number
9905909212 (that of Sangal Swami) was not found at Jehanabad
in between the period 20.06.2016 to 24.06.2016. In paragraph
no. 65, PW-7 has stated that on 27.07.2016 at 07:05 pm a raid
was conducted at the house of Manish Kumar, however he was
absconding and while the police force was returning back to the
police station, they had recovered one Sony company mobile
phone from the drain as was disclosed by Sangal Swami in his
confessional statement, whereafter on 30.07.2016 at 07:00 a.m.
parts of motorcycle of the deceased were seized. In paragraph
no. 69, PW-7 has stated that when the aforesaid Sony company
mobile phone, allegedly belonging to the deceased was
recovered, the wife of the deceased was asked for the document
which she had produced and the same was used to identify the
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mobile phone by matching the IMEI number and then the said
documents were returned back to PW-4, however PW-7 has
admitted that he had not recorded the said factum in the case
diary. In paragraph no. 70, PW-7 has stated that the SDR of
mobile number 9905909212 shows that the same is registered in
the name of one Vinay Kumar, son of Vinod Kr and the sim was
activated on 20.6.2016, however he had not further investigated
regarding the shop from where the said sim was obtained.
29. In paragraph no. 77 of his cross-examination, PW-7 has
stated that no evidence has been found with regard to abduction
and killing of the deceased by the accused person, namely
Manish Kumar and in paragraph no. 78 of his cross-
examination, PW-7 has stated that no witness has mentioned
regarding Manish Kumar having either abducted or killed the
deceased. In paragraph no. 80 of his cross-examination, though
PW-7 has stated that mobile phone used by Manish to
communicate with Sangal has been seized, however the details
of conversation have not been recovered/recorded. In paragraph
no. 82 of his cross-examination PW-7 has stated that the house
of Manish Kumar is at Ganga Chak, Masaurhi and the parts of
motorcycle of the deceased were recovered from the bank of
Punpun river as also two mobile phones were recovered from
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Manish Kumar. PW-7 had seized parts of the motorcycle from
the banks of Punpun river as per the location disclosed by
Manish Kumar. In paragraph no. 87 of his cross-examination
PW-7 has stated that Rahul Kumar @ Fuggi has stated in his
confessional statement that he had dismantled the motorcycle of
the deceased into parts and thrown the same in the Punpun river.
In paragraph no. 93 of his cross-examination PW-7 has stated
that upon ascertaining the name and address of the holder of
mobile no. 9102391649, belonging to Prince Kumar @ Nepali,
the sim card was found to have been issued in the name of one
Dhananjay Kumar whose statement has not been recorded. In
paragraph No. 103, PW-7 has stated that PW-1, PW-3, PW-4
and PW-6 have not named any other accused persons during the
course of investigation and during the course of investigation
statement of eight witnesses were recorded, all of whom have
not taken the name of Rahul Kumar @ Furri @ Fuggi.
30. In paragraph no. 110 of his cross-examination, PW-7 has
stated that there was no communication in between the mobile
number of Raja Goswami i.e. 9097265546 with the mobile
number of the deceased, as is apparent from the CDR. He has
also stated that no witness has taken the name of Raja Goswami
to be the person who had abducted and murdered the deceased.
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In para nos. 115 to 119 of cross-examination of PW-7, though
PW-7 has stated that Hare Ram is stated to have taken the dead
body of the deceased from the place of occurrence by vehicle,
however he has admitted that neither of the eight witnesses have
named Hare Ram Yadav to be having any role in the alleged
occurrence nor there was any conversation between Hare Ram
and the deceased but as per the CDR several conversations had
taken place in between the mobile number of Raja Goswami and
Hare Ram on the alleged date and time of occurrence,
nonetheless the CDR of the mobile number of Hare Ram was
not obtained and his location could not be identified apart from
PW-7 having admitted that no witness has seen Hare Ram
Yadav taking the deceased in his car. In paragraph no. 124 of his
cross-examination, PW-7 has stated that the owner of the car is
Shashi Ranjan, however his statement has not been recorded and
the vehicle which was seized after several days of the alleged
occurrence was never sent for FSL examination.
31. PW-8 Munna Kumar is the Inspector of Police and he has
stated in his examination-in-chief that the Superintendent of
Police, Jehanabad had directed him to retrieve the CDR and
SDR of mobile number in question for the purposes of
investigation, whereafter the same including CAF records were
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generated from the system available in the office and then the
same were retrieved and provided by him in connection with
Jehanabad P.S. Case No. 296 of 2016, which he has identified
and the same have been marked as exhibit-16 with objection. In
cross examination, PW-8 has stated that the aforesaid CDR/
SDR/CAF system generates reports and requires no signature.
Upon the Court having put a question to PW-8 as to whether the
aforesaid CDR/SDR/CAF documents have been attested by him
or by the Superintendent of Police or by any competent official
of the concerned telecom company, he has stated that the same
were generated by the relevant mobile company through our
office system. Upon a question being put to the said witness as
to whether the CDR reveals the user of the said mobile number
at that time, PW-8 has stated that the analysis of CDR was done
by the Investigating Officer.
32. PW-9 Ganesh Das is a formal witness, at whose behest
three seized mobile phones have been exhibited and in his cross-
examination, he has stated that he has no knowledge as to where
the said mobile phones were kept. He has also stated that the
papers relating to the seizure of the said mobile phones were not
prepared in his presence nor sealed and signed by any official as
also the said mobile phones were not seized in his presence and
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the same neither bears any special mark nor have been sealed
rather, they have been just wrapped in a plastic sheet.
33. PW-10 Ram Dhyan Sharma has stated that he knows Dr.
Anil Singh of Patna Medical College, Patna and he has seen him
writing and reading. He has exhibited a copy of the post mortem
report dated 23.06.2016 and has stated that he recognizes the
writing and signature of Dr. Anil Singh present on the same and
the same has been marked as Exhibit-X (with objection). In his
cross-examination PW-10 has stated that he never got an
opportunity to work with Dr. Anil Singh and the said post
mortem report was not prepared in his presence.
34. After closing the prosecution evidence, the learned Trial
Court recorded the statement of the aforesaid appellants on
04.12.2019 under Section 313 Cr.P.C. for enabling them to
personally explain the circumstances appearing in the evidence
against them, however they claimed to be innocent.
35. The learned Trial Court upon appreciation, analysis and
scrutiny of the evidence adduced at the trial has found the
aforesaid appellants guilty of the offence and has sentenced
them to imprisonment and fine as stated above, by the impugned
judgment and order.
36. We have perused the impugned judgment of the learned
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Trial Court, the entire materials available on record including
the evidence led by the prosecution and have given thoughtful
consideration to the rival submissions made by the learned
senior counsels/counsels for the appellants and learned APP for
the State.
37. Having perused the evidence on record we find that there
are no eye witnesses to the alleged occurrence, hence the case of
the prosecution in the present matter is based on circumstantial
evidence, thus we would examine whether the crucial
circumstances as appearing from the case of the prosecution/the
prosecution story are sufficient to establish the guilt of the
appellants in connection with the alleged crime apart from
examining whether all the alleged circumstances have been
proved by cogent and sufficient evidence of the prosecution and
whether all the links to constitute the complete chain of all
alleged material circumstances are complete so as not to give
any reasonable ground for the conclusion consistent with the
innocence of the accused and the same must show that in all
human probability the act must have been done by the accused.
38. At the outset, we would like to delve upon the law laid
down by the Hon’ble Apex Court in the case of Sharad
Birdhichand Sarda vs. State of Maharashtra, reported in
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(1984) 4 SCC 116, wherein five golden principles have been
enunciated and in this regard it would be relevant to reproduce
paragraphs no. 152, 153 and 154 herein below:-
“152. Before discussing the cases relied upon by the High
Court we would like to cite a few decisions on the nature,
character and essential proof required in a criminal case
which rests on circumstantial evidence alone. The most
fundamental and basic decision of this Court
is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC
71]. This case has been uniformly followed and applied
by this Court in a large number of later decisions up-to-
date, for instance, the cases of Tufail (Alias)
Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198]
and Ramgopal v. State of Maharashtra [(1972) 4 SCC
625]. It may be useful to extract what Mahajan, J. has
laid down in Hanumant case:
“It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to
be drawn should in the first instance be fully
established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the
accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a
chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to
show that within all human probability the act must
have been done by the accused.”
153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case
against an accused can be said to be fully established:
“(1) the circumstances from which the conclusion of
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It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not
“may be” established. There is not only a grammatical
but a legal distinction between “may be proved” and
“must be or should be proved” as was held by this
Court in Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793] where the
observations were made:
“Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court
can convict and the mental distance between ‘may be’
and ‘must be’ is long and divides vague conjectures
from sure conclusions.”
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.”
39. Now coming back to the present case, we would like to
examine the circumstances which are material herein. We have
to find out whether all the material/ incriminating circumstances
appearing from the prosecution story have been sufficiently
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proved by the prosecution or not. It is an admitted position that
there is no direct evidence in the present case and none has
claimed to have seen the commission of the alleged killing of the
deceased by the appellants. From the prosecution story as also
from the evidence which we have referred to herein above, the
relevant circumstances which according to the prosecution,
shows commission of the alleged offence by the appellants have
been culled out by us & are being dealt with hereunder one by one.
40. The first circumstance which can be culled out from the
prosecution story is that the deceased namely Mantu Kumar had
left his house on 22.06.2016 at about 08:00 p.m. in the night
after informing his wife Sheela Kumari (PW-4) that he has been
called on telephone by one Mithilesh Kumar for taking money,
however when he did not return late in the night, his wife had
informed the informant of this case, namely Vidhi Kumar (PW-
6), whereupon all the family members started searching for the
said Mantu Kumar but he could not be found and his mobile
phones were also switched off. On 24.06.2016 one dead body
was found lying near Marhoura village under Dhanarua Police
Station, whereafter the informant had gone to Dhanarua Police
Station and identified the dead body as that of his brother.
Having perused the evidence of PW-1 Ram Chandra Prasad
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(father of the deceased), PW-2 Babloo Kumar (maternal brother
of the deceased), PW-3 Kumkum Devi (wife of the informant
and sister-in-law of the deceased), PW-4 Sheela Kumari (wife of
the deceased) and PW-6 Vidhi Kumar (informant and brother of
the deceased), who are the main witnesses of the prosecution, we
find that they have not seen the actual killing of the deceased
with their own eyes, nonetheless they suspect that Mithilesh
Kumar had hatched a conspiracy in connivance with the
appellants and killed the deceased. Moreover, the said witnesses
have all denied to have last seen the deceased in the company of
the aforesaid appellants much less in the company of Mithilesh
Kumar. We further find that most of the said witnesses had come
to know about the killing of the deceased from newspaper. In
fact, the informant (PW-6), in his testimony has admitted that
even in his second statement made before the police, he had not
named any accused person whom he suspected to have killed his
brother as also he had not disclosed the names of the accused
persons who had hatched conspiracy and killed his brother.
Thus, we find that the circumstance of last seen pertaining to the
deceased having left his house either with the appellants or the
said Mithilesh Kumar, much-less the deceased having been last
seen in their company has not stood proved. We also find that the
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place of occurrence has also not stood proved, which is apparent
from a bare perusal of the evidence on record.
41. The second circumstance which has emerged from the
case of the prosecution is regarding identification of the dead
body of the deceased. In this regard, we would refer to the
evidence of PW-2 Babloo Kumar, who has stated that entire
body of the deceased was burnt. Even the Investigating Officer
i.e. PW-7 has stated in his evidence that the deceased had
sustained 100% burn injuries. Moreover, the Investigating
Officer i.e. PW-7 has also stated that all the articles given to him
by the informant during cremation of the deceased were not
seized, however they did not match with items mentioned in
Clause No. 5 and 7 of the inquest report as also with the articles
mentioned in the fardbeyan of the S.H.O., Dhanarua Police
Station. Hence, we find that even identification of the dead body
of Mantu Kumar has not been properly done and there is no
conclusive proof of the fact that the dead body recovered by the
police is that of Mantu Kumar. Thus, this circumstance has also
not stood fully established.
42. The third circumstance which can be gathered from the
evidence on record is regarding the tower location of the mobile
phones of the appellants, Mithilesh Kumar and the deceased
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Mantu Kumar as also the CDR/SDR/CAF of the said mobile
phones. In this regard, we find that the CDR/SDR/CAF have not
stood proved in absence of certification under Section 65B of the
Indian Evidence Act, 1872. Reference in this connection be had
to a judgment rendered by the Hon’ble Apex Court in the case of
Arjun Panditrao Khotkar (supra). Nonetheless, even if the CDR
of the mobile phones of the deceased and the appellants are
taken into consideration, as has been detailed in the evidence of
the Investigating Officer i.e. PW-7, we find that the deceased
had made last call on the mobile of Mithilesh Kumar at 08:20:37
P.M. and the tower location of his mobile was near his house.
Moreover, repeated calls were made to the mobile phones of the
deceased from one suspect mobile number bearing 7519391443,
which upon investigation was found to have been issued on
20.06.2016 in the name of one Kamlesh Kumar, however the
said Kamlesh Kumar could not be traced out by the police. PW-7
has stated in paragraph no. 56 of his evidence that the tower
location of the mobile number of the deceased and that of Sangal
Swami (appellant of the third case) was never found together and
the tower location of the mobile phone of Sangal Swami was in
fact not found at Jehanabad in between 20.06.2016 to 24.6.2016,
hence the complicity of Sangal Swami in the alleged occurrence
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appears to be remote. In paragraph no. 110 of his cross-
examination, PW-7 has stated that there was no communication
in between the mobile phone of Raja Kumar Goswami (appellant
of the first case) and the deceased. Thus, we find that no
conclusive finding has been arrived at upon analysis of the
CDR/SDR/CAF of the mobile phones of the deceased and the
appellants and moreover, there is no proof of any
communication having taken place in between the mobile phone
of the appellants and the deceased, thus all such circumstances
do not lead to any conclusion. Therefore, the circumstances
emanating out of CDR/SDR/CAF of the mobile phones of the
deceased and the appellants are inconclusive and of no worth to
prove the guilt of the appellants beyond all reasonable doubt
inasmuch as the link regarding the appellants having made calls
to the deceased Mantu Kumar is completely missing.
43. The fourth circumstance is regarding the place of
occurrence. In this regard we find that the Investigating Officer
has stated in paragraphs no. 16, 17, 20 and 22 of his evidence
that the house of Raja Kumar Goswami was though inspected,
which is stated to have been used for the purposes of
accidentally killing the deceased as can be culled out from the
confessional statement of Raja Kumar Goswami recorded by
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PW-5 under Section 164 Cr.P.C. on 20.07.2016, however no
incriminating articles were recovered therefrom. Thus, even the
place of occurrence has not stood proved.
44. The fifth circumstance is existence of motive behind the
occurrence in question. We find that in a criminal case based on
circumstantial evidence, motive assumes great significance as it
is considered to be a crucial link for establishing the
prosecution’s allegation, however we find from the evidence of
PW-1 to PW-4 and PW-6 that no motive whatsoever has been
disclosed much-less alleged and in fact PW-4 i.e. the wife of the
deceased has stated in her evidence that the deceased had no
prior enmity either with Mithilesh Kumar or with his brother
Nilesh Kumar. Thus, motive which is an important link in the
chain of circumstances, has not been proved.
45. The sixth circumstance is recovery of the mobile phone of
the deceased upon disclosure made by Sangal Swami (appellant
of the 3rd case), in his confessional statement. The Investigating
Officer (PW-7) has though deposed that upon disclosure made
by Sangal Swami in his confessional statement, the mobile
phone of the deceased was recovered but we find that PW-7 has
stated in para no. 69 of his evidence that when the police had
recovered one Soni company mobile phone from the drain,
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belonging to the deceased, the wife of the deceased was asked
for the documents which she had produced and the same were
used to identify the mobile phone by matching the IMEI number
and then the said documents were returned back to PW-4,
however, PW-7 has admitted that he had not recorded the said
factum in the case diary. Thus, we find that there is no evidence
on record to prove that the said recovered mobile phone is that of
the deceased, hence the said circumstance has also not stood
proved.
46. The seventh circumstance is recovery of the parts of the
motorcycle of the deceased upon disclosure made by Rahul
Kumar @ Fuggi (appellant of the 6th case), in his confessional
statement as also upon the Investigating Officer having extracted
information from Manish Kumar (appellant of the 2 nd case). In
this regard, we may refer to the evidence of the Investigating
Officer i.e. PW-7, who has stated that based on the information
given by Manish Kumar the parts of the motorcycle of the
deceased were recovered, however we find from the evidence on
record that there is no proof of the fact that the parts of the
motorcycle recovered by the police are those of the motorcycle
of the deceased apart from the fact that neither Test identification
of the said parts was conducted nor the Investigating Officer had
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made any effort to link the said parts with the motorcycle of the
deceased, hence the said circumstance also does not lead to any
inference regarding the guilt of the appellants.
47. At this juncture, we may state that it is a well settled law
that so much of the information received from an accused person
in custody of the police, whether in the nature of confession or
otherwise, as related distinctly to the fact thereby discovered,
may be admissible, thus not all information disclosed by a
person in police custody is required to be proved as against the
accused person and only that part which distinctly relates to the
discovery of a fact is admissible and can be proved. Reference in
this connection be had to a judgment rendered by the Hon’ble
Apex Court in the case of Rajendra Singh & Ors. vs. State of
Uttranchal etc., reported in (2025) SCC online SC 2148,
paragraphs no. 27 to 36 whereof are reproduced herein below:-
“27. Now, what remains before us is the recovery of the
weapons of crime to establish the identity of the
appellants as the persons involved in the crime. On the
basis of the recovery of the said weapons, we have to
determine if the said recoveries are good enough to
connect the appellants with the crime.
28. Undoubtedly, the recovery of one of the swords was
made from a garage, and the recovery of another sword
and the Kanta was made from bushes in sugarcane field,
which was an open space. The weapons were no doubt
recovered allegedly on the pointing out of the appellants.
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said weapons with that of the deceased. The weapons
were sent for forensic examination but no report of the
forensic laboratory was produced to establish that the
weapons so recovered were smeared with the blood of the
deceased to prove that they were actually used in the
murder of the deceased.
29. We are afraid that the submission of the State counsel,
that as the appellants themselves stated that they took the
police to the place where they hid the weapons, by which
they committed the offence indicates that the appellants
admitted to have committed the offence with the above
weapons, cannot be accepted. The statement of the
appellants that the weapons recovered were the weapons
of crime cannot be read against them in view of Sections
25 and 26 read with Section 27 of the Indian Evidence
Act, 1872. Only that part of the statement which leads the
police to the recovery of the weapons is admissible, and
not the part which alleges that the weapons recovered
were actually the weapons of crime.
30. The above three provisions of the Evidence Act are
beneficial to bring home the point. They read as under:
“25. Confession to police officer not to be proved.–
No confession made to a police officer, shall be proved
as against a person accused of any offence.
26. Confession by accused while in custody of police
not to be proved against him.– No confession made
by any person whilst he is in the custody of a police
officer, unless it be made in the immediate presence of
a Magistrate, shall be proved as against such person.
Explanation.– In this section “Magistrate” does not
include the head of a village discharging magisterial
functions in the Presidency of Fort St. George or
elsewhere, unless such headman is a Magistrate
exercising the powers of a Magistrate under the Code
of Criminal Procedure, 1882 (10 of 1882)
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27. How much of information received from accused
may be proved.– Provided that, when any fact is
deposed to as discovered in consequence of
information received from a person accused of any
offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession
or not, as relates distinctly to the fact thereby
discovered, may be proved.”
31. A simple reading of all the three provisions conjointly
reveals that the first two provisions are substantive,
whereas Section 27 is in the nature of an exception.
Sections 25 and 26, at one hand, provide that no
confession made to a police officer or to any person while
in custody of the police, shall be admissible against a
person accused of any offence, on the other hand, Section
27 provides an exception to the above provisions. It states
that so much of the information, received from an
accused person in custody of the police, whether in the
nature of confession or otherwise, as related distinctly to
the fact thereby discovered, may be admissible. This
means that not all information disclosed by a person in
police custody is required to be proved as against the
accused person; only that part which distinctly relates to
the discovery of a fact is admissible and can be proved.
32. In Pulukuri Kottaya v. The King Emperor, the Privy
Council while analysing the aforesaid three provisions of
the Evidence Act, held that the fact of discovery, on
information supplied by the accused is a relevant fact
except in a case in which the possession or concealment
of an object constitute the gist of the offence charged.
Information supplied by a person in custody such as “I
will produce a knife concealed in the roof of my house”,
only leads to the discovery of the knife concealed in the
house of the informant, but whether the knife is proved to
have been used in the commission of an offence is
another question. So if the above information is followed
by the words, “with which I stabbed A”, those words
would be inadmissible since they do not relate to the
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discovery of the knife from the house of the informant, but
are rather independent in nature, amounting to
confession of the crime which cannot be used against the
person making it i.e. the accused, in view of prohibition
contained under Sections 25 and 26 of the Evidence Act.
33. The aforesaid decision has recently been followed
with approval by the Division Bench of this Court in
Manjunath v. State of Karnataka, wherein it has been said
that only “so much of the information” as relates
distinctly to the fact thereby discovered is admissible, and
the rest of the information stands excluded. In other
words, the information leading to the recovery of the
weapons of crime is admissible, but not the information
that the crime was actually committed by the said
weapons.
34. In view of the aforesaid facts and circumstances, the
identity of the appellants as the persons involved in the
offence has not been established either by any ocular
evidence or from the recovery of the weapons of crime.
35. It is important to note that the order of acquittal
passed by the Trial Court was not open to interference by
the First Appellate Court until and unless the findings
recorded by the Trial Court were per se perverse or
erroneous. It is safer and more appropriate to rely upon
the findings of the Trial Court which has seen the
demeanor of the witnesses rather than to rely upon the
findings of the First Appellate Court. In our opinion, the
High Court erred in reversing the finding of the Trial
Court without coming to the conclusion that the findings
of the Trial Court were perverse.
36. Thus, in the aforesaid facts and circumstances of the
case, we are of the view that High Court manifestly erred
in interfering with the findings of acquittal recorded by
the Trial Court and reversing the judgment so as to
convict the appellants. It is doubtful whether the offence
has been committed by the appellants. The conviction of
the appellants is accordingly set aside. The appeals are
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allowed, and the appellants are acquitted of the alleged
offence by granting them the benefit of doubt.”
48. We may also gainfully refer to a judgment rendered by
the Hon’ble Apex Court in the case of Jafarudheen & Ors vs.
State of Kerala reported in (2022) 8 SCC 440, paragraphs no. 37
to 43 whereof are reproduced herein below:-
“37. Section 27 of the Evidence Act is an exception to
Sections 24 to 26. Admissibility under Section 27 is
relatable to the information pertaining to a fact
discovered. This provision merely facilitates proof of a
fact discovered in consequence of information received
from a person in custody, accused of an offence. Thus, it
incorporates the theory of “confirmation by subsequent
facts” facilitating a link to the chain of events. It is for the
prosecution to prove that the information received from
the accused is relatable to the fact discovered. The object
is to utilise it for the purpose of recovery as it ultimately
touches upon the issue pertaining to the discovery of a
new fact through the information furnished by the
accused. Therefore, Section 27 is an exception to Sections
24 to 26 meant for a specific purpose and thus be
construed as a proviso.
38. The onus is on the prosecution to prove the fact
discovered from the information obtained from the
accused. This is also for the reason that the information
has been obtained while the accused is still in the custody
of the police. Having understood the aforesaid object
behind the provision, any recovery under Section 27 will
have to satisfy the court’s conscience. One cannot lose
sight of the fact that the prosecution may at times take
advantage of the custody of the accused, by other means.
The court will have to be conscious of the witness’s
credibility and the other evidence produced when dealing
with a recovery under Section 27 of the Evidence Act.
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39. Kusal Toppo v. State of Jharkhand [(2019) 13 SCC
676] as hereunder:
“25. The law under Section 27 of the Evidence Act is
well settled now, wherein this Court in Geejaganda
Somaiah v. State of Karnataka [(2007) 9 SCC 315] has
observed as under:
’22. As the section is alleged to be frequently misused
by the police, the courts are required to be vigilant
about its application. The court must ensure the
credibility of evidence by police because this
provision is vulnerable to abuse. It does not, however,
mean that any statement made in terms of the
aforesaid section should be seen with suspicion and it
cannot be discarded only on the ground that it was
made to a police officer during investigation. The
court has to be cautious that no effort is made by the
prosecution to make out a statement of the accused
with a simple case of recovery as a case of discovery
of fact in order to attract the provisions of Section 27
of the Evidence Act.’
26. The basic premise of Section 27 is to only partially
lift the ban against admissibility of inculpatory
statements made before the police, if a fact is actually
discovered in consequence of the information received
from the accused. Such condition would afford some
guarantee. We may additionally note that, the courts
need to be vigilant while considering such evidence.
27. This Court in multiple cases has reiterated the
aforesaid principles under Section 27 of the Evidence
Act and only utilised Section 27 for limited aspect
concerning recovery (refer Pulukuri Kotayya v. King
Emperor [1946 SCC OnLine PC 47]; Jaffar Hussain
Dastagir v. State of Maharashtra [(1969) 2 SCC 872].
As an additional safeguard we may note that reliance
on certain observations made in certain precedents of
this Court without understanding the background of
the case may not be sustainable. There is no
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precedential value and the same may not be extended
to an obiter. As this Court being the final forum for
appeal, we need to be cognizant of the fact that this
Court generally considers only legal aspects relevant
to the facts and circumstances of that case, without
elaborately discussing the minute hyper technicalities
and factual intricacies involved in the trial.”
40. Navaneethakrishnan v. State [(2018) 16 SCC 161] as
hereunder : (SCC p. 168, para 23)
“23. The learned counsel for the appellant-accused
contended that the statements given by the appellant-
accused are previous statements made before the
police and cannot be therefore relied upon by both the
appellant-accused as well as the prosecution. In this
view of the matter, it is pertinent to mention here the
following decision of this Court in Selvi v. State of
Karnataka [(2010) 7 SCC 263] wherein it was held as
under : (SCC p. 334, para 133)
‘133. We have already referred to the language of
Section 161CrPC which protects the accused as well
as suspects and witnesses who are examined during
the course of investigation in a criminal case. It
would also be useful to refer to Sections 162, 163 and
164CrPC which lay down procedural safeguards in
respect of statements made by persons during the
course of investigation. However, Section 27 of the
Evidence Act incorporates the “theory of
confirmation by subsequent facts” i.e. statements
made in custody are admissible to the extent that they
can be proved by the subsequent discovery of facts. It
is quite possible that the content of the custodial
statements could directly lead to the subsequent
discovery of relevant facts rather than their discovery
through independent means. Hence such statements
could also be described as those which “furnish a
link in the chain of evidence” needed for a successful
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prosecution.”
41. H.P. Admn. v. Om Prakash [(1972) 1 SCC 249] as
hereunder : (SCC p. 259, para 8)
“8. … We are not unaware that Section 27 of the
Evidence Act which makes the information given by the
accused while in custody leading to the discovery of a
fact and the fact admissible, is liable to be abused and
for that reason great caution has to be exercised in
resisting any attempt to circumvent, by manipulation or
ingenuity of the investigating officer, the protection
afforded by Section 25 and Section 26 of the Evidence
Act. While considering the evidence relating to the
recovery we shall have to exercise that caution and
care which is necessary to lend assurance that the
information furnished & the fact discovered is credible.”
42. Aghnoo Nagesia v. State of Bihar [(1966) 1 SCR 134:
AIR 1966 SC 119] as hereunder:(AIR pp. 122-23, para 9)
“9. Section 25 of the Evidence Act is one of the
provisions of law dealing with confessions made by an
accused. The law relating to confessions is to be found
generally in Sections 24 to 30 of the Evidence Act and
Sections 162 and 164 of the Code of Criminal
Procedure, 1898. Sections 17 to 31 of the Evidence Act
are to be found under the heading “Admissions”.
Confession is a species of admission, and is dealt with
in Sections 24 to 30. A confession or an admission is
evidence against the maker of it, unless its
admissibility is excluded by some provision of law.
Section 24 excludes confessions caused by certain
inducements, threats and promises. Section 25
provides: ‘No confession made to a police officer, shall
be proved as against a person accused of an offence’.
The terms of Section 25 are imperative. A confession
made to a police officer under any circumstances is not
admissible in evidence against the accused. It covers a
confession made when he was free and not in police
custody, as also a confession made before any
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investigation has begun. The expression “accused of
any offence” covers a person accused of an offence at
the trial whether or not he was accused of the offence
when he made the confession. Section 26 prohibits
proof against any person of a confession made by him
in the custody of a police officer, unless it is made in
the immediate presence of a Magistrate. The partial
ban imposed by Section 26 relates to a confession
made to a person other than a police officer. Section 26
does not qualify the absolute ban imposed by Section
25 on a confession made to a police officer. Section 27
is in the form of a proviso, and partially lifts the ban
imposed by Sections 24, 25 and 26. It provides that
when any fact is deposed to as discovered in
consequence of information received from a person
accused of any offence, in the custody of a police
officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to
the fact thereby discovered, may be proved. Section
162 of the Code of Criminal Procedure forbids the use
of any statement made by any person to a police officer
in the course of an investigation for any purpose at any
enquiry or trial in respect of the offence under
investigation, save as mentioned in the proviso and in
cases falling under sub-section (2), and it specifically
provides that nothing in it shall be deemed to affect the
provisions of Section 27 of the Evidence Act. The
words of Section 162 are wide enough to include a
confession made to a police officer in the course of an
investigation. A statement or confession made in the
course of an investigation may be recorded by a
Magistrate under Section 164 of the Code of Criminal
Procedure subject to the safeguards imposed by the
section. Thus, except as provided by Section 27 of the
Evidence Act, a confession by an accused to a police
officer is absolutely protected under Section 25 of the
Evidence Act, and if it is made in the course of an
investigation, it is also protected by Section 162 of the
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Code of Criminal Procedure, and a confession to any
other person made by him while in the custody of a
police officer is protected by Section 26, unless it is
made in the immediate presence of a Magistrate. These
provisions seem to proceed upon the view that
confessions made by an accused to a police officer or
made by him while he is in the custody of a police
officer are not to be trusted, and should not be used in
evidence against him. They are based upon grounds of
public policy, and the fullest effect should be given to
them.”
43. K. Chinnaswamy Reddy v. State of A.P. [(1963) 3 SCR
412 : AIR 1962 SC 1788] as hereunder: (AIR pp. 1792-
793, para 9)
“9. Let us then turn to the question whether the
statement of the appellant to the effect that “he had
hidden them (the ornaments)” and “would point out
the place” where they were, is wholly admissible in
evidence under Section 27 or only that part of it is
admissible where he stated that he would point out the
place but not that part where he stated that he had
hidden the ornaments. The Sessions Judge in this
connection relied on Pulukuri Kotayya v. King
Emperor [1946 SCC OnLine PC 47] where a part of
the statement leading to the recovery of a knife in a
murder case was held inadmissible by the Judicial
Committee. In that case the Judicial Committee
considered Section 27 of the Evidence Act, 1872 which
is in these terms:
’27. How much of information received from
accused may be proved.–Provided that, when any
fact is deposed to as discovered in consequence of
information received from a person accused of any
offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession
or not, as relates distinctly to the fact thereby
discovered, may be proved.’
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63/71This section is an exception to Sections 25 and 26,
which prohibit the proof of a confession made to a
police officer or a confession made while a person is in
police custody, unless it is made in immediate presence
of a Magistrate. Section 27 allows that part of the
statement made by the accused to the police “whether
it amounts to a confession or not” which relates
distinctly to the fact thereby discovered to be proved.
Thus even a confessional statement before the police
which distinctly relates to the discovery of a fact may
be proved under Section 27. The Judicial Committee
had in that case to consider how much of the
information given by the accused to the police would
be admissible under Section 27 and laid stress on the
words “so much of such information … as relates
distinctly to the fact thereby discovered” in that
connection. It held that the extent of the information
admissible must depend on the exact nature of the fact
discovered to which such information is required to
relate. It was further pointed out that “the fact
discovered embraces the place from which the object is
produced and the knowledge of the accused as to this,
and the information given must relate distinctly to this
fact.””
49. Now coming to the confessional statement made by Raja
Kumar Goswami (appellant of the 1st case) and Rahul Kumar @
Furri @ Fuggi (appellant of the 6 th case) under Section 164
Cr.P.C. before the learned Magistrate i.e. PW-5 Sandeep Patel,
we find that before acting upon the confession it will have to be
judged as to whether the confession is reliable or not and one test
which is useful in most cases for evaluating a confession, as has
been held by the Hon’ble Apex Court in the case of Sankaraiya
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Court should carefully examine the confession and compare it
with the rest of the evidence in the light of surrounding
circumstances and probabilities of the case and upon such
examining and comparison, if the confession appears to be a
probable catalogue of events and naturally fits in with the rest of
the evidence and the surrounding circumstances, it may be taken
to have satisfied the test of the confession being true and
trustworthy.
50. It is a well settled principle of law that a confession
recorded under Section 164 Cr.P.C. is generally admissible as
evidence and can be used to establish the guilt but such
confessional statement is not considered as a substantive piece of
evidence on its own. It can only be used to corroborate or
contradict the statements made in Court and is generally
considered only when it has been recorded after having
complying with all the mandatory provisions of Section 164
Cr.P.C. In this regard, we would gainfully refer to a judgment
rendered by the Hon’ble Apex Court in the case of S. Arul Raja
vs. State of Tamil Nadu, reported in (2010) 8 SCC 233. It is
equally a well settled law that the extra judicial confession is
considered to be a weak evidence by itself and the same has to
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connection be had to the principles laid down by the Hon’ble
Apex Court in a judgment passed in the case of Sahadevan and
Another vs. State of Tamil Nadu, reported in (2012) 6 SCC 403,
which have also been reiterated by the Hon’ble Apex Court in a
recent judgment passed in the case of Ramu Appa Mahapatar
vs. State of Maharashtra, reported in (2025) 3 SCC 565. It
would be relevant to reproduce para No. 16 of the judgment
rendered in the case of Sahadevan & Anr. (supra) herein below:-
“16. Upon a proper analysis of the above referred
judgments of this Court, it will be appropriate to state the
principles which would make an extra-judicial confession
an admissible piece of evidence capable of forming the
basis of conviction of an accused. These precepts would
guide the judicial mind while dealing with the veracity of
cases where the prosecution heavily relies upon an extra-
judicial confession alleged to have been made by the
accused:
(i) The extra-judicial confession is a weak evidence by
itself. It has to be examined by the court with greater care
and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater
credibility and evidentiary value if it is supported by a
chain of cogent circumstances and is further
corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of
conviction, it should not suffer from any material
discrepancies and inherent improbabilities.
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(vi) Such statement essentially has to be proved like any
other fact and in accordance with law.”
51. Reference in this regard be also had to the judgments
rendered by the Hon’ble Apex Court in the following cases: –
(i) Judgment rendered in the case of Ratnu Yadav vs.
State of Chhattisgarh, reported in 2024 SCC Online SC
1667;
(ii) Judgment rendered in the case of Pawan Kumar
Chourasia vs. State of Bihar, reported in (2023) 18 SCC
414;
(iii) Judgment rendered in the case of Sanjay vs. State of
Uttar Pradesh, reported in 2025 SCC Online SC 572.
52. Now coming back to the present case, as far as the
confessional statements of Raja Kumar Goswami and Rahul
Kumar @ Fuggi, recorded by PW-5 under Section 164 Cr.P.C.
are concerned, such statements have to be proved like any other
fact and in accordance with law, the same should not suffer from
any material discrepancies and should be supported by a chain of
cogent circumstances as also should be further corroborated by
other prosecution evidence. However, we find from the evidence
on record that the confessional statement made by the said two
appellants under Section 164 Cr.P.C. before PW-5 have not stood
substantiated in absence of the circumstances from which the
conclusion of guilt is to be drawn, having been proved
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independently as also the link in the chain of circumstances
being not complete and there being several missing links. Thus,
the said extra judicial confession does not inspire confidence so
as to form the sole basis for proving the guilt of the appellants
beyond all reasonable doubt.
53. We find upon perusal of the evidence of the Investigating
Officer i.e. PW-7, especially paragraphs no. 77, 78, 106, 110,
112, 115 and 119 that PW-7 has stated therein that none of the
eight witnesses have either named Rahul Kumar or Raja Kumar
Goswami or Hare Ram Yadav or Manish Kumar to be having
any complicity in the killing of the deceased, there is no
evidence regarding them having abducted and murdered the
deceased and moreover, there is neither any evidence nor
anybody has seen Hare Ram Yadav (appellant of the 5 th case)
carrying the dead body of the deceased in his car. In fact, PW-7
has also not deposed regarding there being any communication
from the mobile phones of the appellants with that of the
deceased. Thus, we find that there is absolutely no evidence on
record to prove the guilt of the aforesaid appellants in the alleged
occurrence beyond all reasonable doubt.
54. Now, we deem it apt to refer to the well settled principle
of law laid down by the Hon’ble Apex Court in a catena of
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judgments to the effect that conviction can be based solely on
circumstantial evidence if the circumstances so established are
consistent only with the hypothesis of the guilt of the accused
and also conclusive in nature leaving no room of any hypothesis
of innocence of the accused in the alleged crime and the entire
chain of circumstances, is complete. In this regard, we would
like to refer to a judgment rendered by the Hon’ble Apex Court
in the case of SK. Yusuf vs. State of West Bengal, reported in
(2011) 11 SCC 754, relevant paragraph whereof being paragraph
no. 32, is being reproduced herein below: –
“32. Undoubtedly, conviction can be based solely on
circumstantial evidence. However, the court must bear in
mind while deciding the case involving the commission of
serious offence based on circumstantial evidence that the
prosecution case must stand or fall on its own legs and
cannot derive any strength from the weakness of the
defence case. The circumstances from which the
conclusion of guilt is to be drawn should be fully
established. The facts so established should be consistent
only with the hypothesis of the guilt of the accused and
they should not be explainable on any other hypothesis
except that the accused is guilty. The circumstances
should be of a conclusive nature and tendency. There
must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with
the innocence of the accused and must show that in all
human probability that the act must have been done by
the accused.”
55. We find from the evidence on record of the present case
that material/ incriminating circumstances from which the
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conclusion of guilt of the appellants is to be drawn have not
stood proved much less established and the evidence on record
does not lead us to draw an inference that the link in the chain of
circumstances is so complete, so as not to leave any reasonable
ground for the conclusion consistent with the innocence of the
accused. Moreover, all the facts/circumstances/evidence, as
discussed hereinabove cumulatively stitched together do not lead
to the sole hypothesis of the guilt of the appellants herein. We
also find that the test laid down by the Hon’ble Apex Court in
the case of Sharad Birdhichand Sarda (supra) is not satisfied so
as to warrant sustaining of conviction based on scratchy and
disjointed evidence. Consequently, we also find that the essential
ingredients to constitute an offence under section 201 IPC are
completely missing as also have not stood proved. Thus,
considering the evidence available on record, we are of the
opinion that it will be extremely unsafe to sustain a conviction
qua the appellants inasmuch as the prosecution has failed to
establish its case beyond all reasonable doubts, hence we are
constrained to come to a conclusion that the appellants are not
guilty of the offences for which they have been charged.
Therefore, taking into account an overall perspective of the
entire case, emerging out of totality of the facts and
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circumstances, as indicated hereinabove and having perused the
entire evidence on record as also for the foregoing reasons, we
find that the impugned judgment of conviction and order of
sentence does not stand to scrutiny, hence the same requires
interference, thus the appellants of the aforesaid appeals deserve
to be acquitted of the charges levelled against them.
56. Accordingly, the judgment of conviction and order of
sentence dated 12.12.2019 and 13.12.2019 respectively, passed
by the learned court of 1st Additional District and Sessions
Judge, Jehanabad in Sessions Trial No. 76 of 2017/14 of 2017
(arising out of Jehanabad P.S. Case No. 296 of 2016) are hereby
set aside. Consequently, all the appellants of the aforesaid six
appeals are acquitted of the charges levelled against them.
57. The appellant of Criminal Appeal (DB) No. 53 of 2020,
namely Raja Kumar Goswami @ Raj Kumar Goswami @ Raja
Goswami, who is in custody, is directed to be released from the
jail forthwith, if not required in any other case.
58. As far as the appellants of Criminal Appeal (SJ) No. 5775
of 2019 (Manish Kumar), Criminal Appeal (DB) No. 16 of 2020
(Sangal Swami @ Vinay Kumar), Criminal Appeal (DB) No.
314 of 2020 (Prince Kumar @ Nepali), Criminal Appeal (DB)
No. 359 of 2020 (Hare Ram Yadav) and Criminal Appeal (DB)
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No. 566 of 2021 (Rahul Kumar @ Furri @ Fuggi) are
concerned, they are on bail, as such they are discharged from the
liabilities of their bail bonds.
59. In the result, all the aforesaid six appeals bearing
Criminal Appeal (DB) No. 53 of 2020, Criminal Appeal (SJ) No.
5775 of 2019, Criminal Appeal (DB) No. 16 of 2020, Criminal
Appeal (DB) No. 314 of 2020, Criminal Appeal (DB) No. 359 of
2020 and Criminal Appeal (DB) No. 566 of 2021 stand allowed.
(Mohit Kumar Shah, J)
(Soni Shrivastava, J)
S.Sb/-
AFR/NAFR AFR CAV DATE 13.11.2025 Uploading Date 17.02.2026 Transmission Date 17.02.2026
