IN THE HIGH COURT OF JUDICATURE AT PATNA High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 2 Kumar Ravi, Shashi Shekhar Kumar Prasad, Advocates. (For P.W. 9 in all appeals) : M/s

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (DB) No.418 of 2008

(Against the judgment of conviction and order of sentence dated 14.02.2008

passed by Additional Sessions Judge XI, Patna in Sessions Trial No. 976 of

1999)

===========================================================

Rajesh Ranjan @ Pappu Yadav, son of Sri Chandra Narayan Prasad, resident of

Court Station Road, P.S. K. Hat Purnea, district Purnea, Bihar, presently lodged at

Jail No.3, Central Jail, Tihar, New Delhi

.... .... Appellant/s

Versus

The State of Bihar through the C.B.I.

.... .... Respondent/s

With

Criminal Appeal (DB) No. 240 of 2008

===========================================================

Anil Kumar Yadav, son of Hari Yadav, resident of mohalla Moranga, police station

Moranga (K. Hat), district Purnea


Versus

The State of Bihar through the C.B.I


With

Criminal Appeal (DB) No. 361 of 2008 ===========================================================

Rajan Tiwary, son of Vishwa Jeevan Tripathy, resident of village Sahgaura, P.S.

Gagaha in the town and district of Gorakhpur (Uttar Pradesh)


Versus

The State of Bihar through the C.B.I


===========================================================

Appearance :

(In CR. APP (DB) No. 418 of 2008) For the Appellant/s : M/s. Shrikant V. Bhat, Rakesh Kumar Singh, Ravi

Sharma, Rajesh Ranjan, J. John, Ajit Kumar Ojha,

Nutan Mishra, Pandey Sanjay Sahay, Advocates.

(In CR. APP (DB) No. 240 of 2008)

For the Appellant/s : M/s. Ramakant Sharma, Sr. Advocate, Ajeet Ojha,

Nutan Mishra, Advocate.

(In CR. APP (DB) No. 361 of 2008)

For the Appellant/s : M/s. Surendra Singh, Sr. Advocate, Dr. Abhishek

Priyadarshi, Advocate

(For C.B.I. in all appeals) : M/s. Rakesh Kumar Khanna, Sr. Advocate (Additional

Solicitor General of India for C.B.I), Harsh Prabhakar,

Anando Mukherjee, Bipin Kumar Sinha (Standing

Counsel for C.B.I.), Prabhu Narayan Sharma, Sunil

Patna High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013

2

Kumar Ravi, Shashi Shekhar Kumar Prasad, Advocates.

(For P.W. 9 in all appeals) : M/s. Jitendra Singh, Sr. Advocate, Soni Shrivastava,

Amit Prakash, Ravi Bhardwaj, Amit Pawan,

Advocates.

===========================================================

CORAM: HONOURABLE MR. JUSTICE V.N. SINHA

And

HONOURABLE MR. JUSTICE AMARESH KUMAR LAL

C.A.V. JUDGMENT

(Per: HONOURABLE MR. JUSTICE V.N. SINHA)

Date: 17-05-2013

V.N. Sinha, J. These three appeals are filed against the judgment and order

dated 14.02.2008 passed by Additional Sessions Judge-XI, Patna in

Sessions Trial No. 976 of 1999 whereby the three appellants, namely,

Rajesh Ranjan @ Pappu Yadav, Anil Kumar Yadav and Rajan Tiwari

have been convicted under Section 302 read with Section 120(B),

302/34, 302/34 and 307/34 of the Indian Penal Code and Section 27 of

the Arms Act respectively and sentenced to undergo rigorous

imprisonment for life as also to pay fine of Rs.10,000/- each, in default

of payment of fine to further undergo rigorous imprisonment for one

year. Appellant Rajan Tiwary has been further directed to undergo

rigorous imprisonment for seven years each for the offence under

Sections 307/34 I.P.C. and 27 of the Arms Act. The sentences, however,

has been directed to run concurrently.

2. Prosecution case as set out in the fardbeyan, Ext. 27 of

Kalyan Chandra Sarkar, P.W. 8 recorded by Sri A.K. Jha, P.W. 56

Circle Inspector, Sadar Purnia at the residence of late Ajit Sarkar on


3

14.6.1998 at 17.45 hours is that informant came to the house of his

brother Ajit Sarkar in the morning between 7-8 hours, was taking stroll

outside the house of his brother at about 4.30 P.M.(16.30 hours) two

comrades of his brother Masudan Rishi, P.W. 9 resident of Kaliganj and

Lal Bahadur Rishi, P.W. 10 resident of Khakibari also joined him.

While talking to the two comrades informant came ahead of Kali flour

mill near the school he saw a motorcycle parked on the road. Near the

motorcycle two persons (1) Jawahar Yadav, resident of Purnia and (2)

Abdul Sattar, resident of Kaliganj were seen. Abdul Sattar signalled the

car of his brother Ajit Sarkar coming from opposite direction to stop.

The car stopped, by then (3) Diwakar Chaudhary 4) Pappu Dev came on

motorcycle from the front, (5) Bipin Singh and 6-7 others variously

armed also came in a car and resorted to indiscriminate firing. The two

persons who signalled the car to stop also fired from rifle. Having seen

the occurrence informant asked Masudan Rishi as to what is happening

and raising alarm came back towards the village. The assailants escaped

towards the N.H., the direction from which they had come. Meanwhile,

many others also came and saw the assailants running away. Informant

along with others went near the car and saw his brother Ajit Sarkar (2)

Asfaq Alam of Mahmadia Estate (3) Hirendra Sharma, resident of Sausa

Adampur dead, Bodyguard Ramesh Oraon seriously injured, who was

taken to the hospital by the villagers. In the penultimate paragraph of


4

the fardbeyan informant claimed that accused named in the fardbeyan

conspired to kill his brother and others as also to grievously hurt the

Bodyguard. In the last paragraph of the fardbeyan informant further

stated that statement given by him has been read over, read and

understood by him and having found the same to be correct put his

signature over the fardbeyan in Hindi. Besides the informant fardbeyan

has also been signed by Lal Bahadur Oraon, P.W. 10 and Bilin Chandra

Sarkar (not examined) as witness of the fact that fardbeyan has been

scribed by Inspector A.K. Jha, P.W. 56 on the statement of the

informant. Sri A.K. Jha, P.W. 56 having recorded the fardbeyan

forwarded the fardbeyan to Officer in Charge, Khajanchi Hat P.S. to

institute a case under Sections 302/34, 120(B) of the Indian Penal Code

and Section 27 of the Arms Act and took up the investigation. In the

light of the fardbeyan Officer in charge, K. Hat P.S. registered K. Hat

P.S. Case No.230/98 dated 14.6.1998 at 10 P.M. under Sections 302/34,

120(B) I.P.C. and Sections 27 of the Arms Act, Ext.31 stating that

Inspector A.K. Jha has already taken up investigation of the case under

order from S.P., Purnia. A.K. Jha having recorded the fardbeyan

inspected the place of occurrence and found three empty cartridges of

A.K.-47, which were seized by him vide seizure list Ext. 26. The

inquest of the three dead body was also made by the I.O. A.K. Jha vide

Exts. Y, Y/1 and Y/2. Injured having been shifted to the hospital was


5

examined by Dr. R.D. Raman, P.W. 15 vide injury report, Ext. 24. In

the night between 14-15.6.1998 further statement of the informant and

statement of the two eye witnesses Madhusudan Rishi and Lal Bahadur

Oraon was recorded reiterating the contents of the fardbeyan. The house

of the accused named in fardbeyan was also raided in the same night but

none was found at their residence. There was a public outcry after the

incident and only upon the visit of Sri Lalu Prasad Yadav body of Ajit

Sarkar was allowed to be taken for post mortem. Post mortem over the

dead body of the three deceased was conducted on 15.6.1998 by Dr.

B.K. Sinha, P.W. 32 vide Exts. 13, 13/1, 13/2. F.I.R. of K. Hat P.S.

Case No. 230/98 was received in the court of C.J.M., Purnea on

16.6.1998 but no particular time of its dispatch by the Investigating

Officer, P.W. 56 and receipt by Judicial Magistrate is recorded over the

same. On 16.6.1998 the Government of Bihar issued notification

no.492/H.S. dated 16.6.1998 expressing its resolve to appoint a

Commission of enquiry in terms of Section 3 of the Commission of

Enquiry Act, 1952 to be headed by a retired High Court judge to be

nominated by Hon‘ble the Chief Justice of the Patna High Court.

Kalyan Chandra Sarkar, P.W. 8 furnished on 22.6.1998 the alias name

of accused no.5 of K.Hat P.S. Case No.230/98 to the I.O. of the said

case along with his address, whereafter Bipin Singh was arrested and

remanded to judicial custody on 23.6.1998. Smt. Madhvi Bose (Sarkar)


6

wife of deceased Ajit Sarkar made a written request to Hon‘ble the

Chief Minister, Bihar on 1.7.1998 to transfer the investigation of K.Hat

P.S. Case No.230/98 to Central Bureau of Investigation (hereinafter

referred to as the C.B.I.) During investigation of K. Hat P.S. Case No.

230/98 Smt. Madhvi Sarkar, wife of the deceased Ajit Sarkar filed

application under Section 452 Cr.P.C. before C.J.M., Purnea on

19.7.1998 for release of Ambassador Car bearing Registration No.

BHK-1426 which was allowed under order dated 25.7.1998 and the car

was handed over to Smt. Madhvi Sarkar. While the investigation of K.

Hat P.S. Case No.230/98 continued State Government issued

notification dated 11.8.1998 under Section 6 of the Delhi Special Police

Establishment Act 1946, Ext. 3 granting its consent for investigation of

K. Hat P.S. Case No.230/98 by the C.B.I. While Government of India

considered the request made by the State Government under notification

dated 11.8.1998, Purnia district police recorded the statement of one

Sanjay Rai under Section 164 Cr.P.C. on 12.08.19998 and submitted

charge sheet dated 20.9.1998 on 21.9.1998 in the court of Chief Judicial

Magistrate, Purnia finding the accusation true against Bipin Singh @

Bipin Chaudhary the arrested accused and four others named in the

fardbeyan showing them absconders. From perusal of charge sheet, it

appears that Purnia police continued the investigation against the

suspects named by Sanjay Rai in his statement recorded under Section


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164 Cr.P.C. on 12.8.1998 including these three appellants. C.J.M.,

Purnia having perused the charge sheet took cognizance of the offences

found true by Purnia police in charge sheet dated 20.9.1998 under order

dated 23.9.1998 summoned the accused sent up for trial i.e. Bipin

Singh, the four absconders and kept pending the supplementary

investigation against 11 persons, namely, (1) Pappu Yadav (2) Harish

Chaudhary (3) Amar Yadav (4) Prabhat Yadav (5) Pawan Yadav (6)

Pankaj Yadav (7) Santosh Yadav (8)) Raju Yadav (9) Rajan Tiwary

(10) Manoj Yadav and (11) Anil Yadav.

3. Government of India under notification dated 28.9.1998,

Ext. 42 entrusted investigation of K.Hat P.S. Case No.230/98 to the

C.B.I. C.B.I. having taken the investigation of K.Hat P.S. Case

No.230/98 registered on 12.10.1998 First Information No. RC 12(S)/98-

SIC-IV/New Delhi, Ext. 37/1 under the signature of Sri Harbansh

Singh, S.P., C.B.I. (not examined) incorporating the contents of

fardbeyan of K.Hat P.S. Case No.230/98. After registration of RC

12(S)/98-SIC-IV/New Delhi, Ext. 37/1 investigation of the said case

was entrusted to Sri N.H. Kharayat, Dy. S.P., C.B.I., P.W. 61 and

Inspector M.L. Meena, P.W. 57. The investigating team reached Purnia

on 21/22.10.1998 for conducting further investigation and met D.M.,

S.P., Purnea and P.W. 56 who was Investigating Officer of K. Hat P.S.

Case No. 230/98 and asked P.W. 56 to hand over the case record, which


8

was handed over to P.W. 61 on 23.10.1998. P.W. 61 recorded the

statement of Ravindra Nath Singh, Kalyan Chandra Sarkar,

Madhusudan Rishi and Lal Bahadur Oraon, P.Ws. 7, 8, 9 and 10 on

25.10.1998, 24.10.1998, 29.10.1998 and 28.10.1998 respectively. While

making statement to the I.O. of C.B.I., P.W. 61 P.W. 8 disowned his

statement recorded on 14.6.1998 at 5.45 P.M. on the basis of which

fardbeyan, Ext. 27 was recorded by Inspector A.K. Jha, P.W. 56. He

also disowned his re-statement made before A.K. Jha during the night

between 14-15.6.1998 under Section 161 Cr.P.C. In the statement made

before the I.O., C.B.I. P.W. 8 claimed that while he reached ahead of

Kali Flour Mill near culvert along with P.Ws. 9, 10 he saw Ajit Sarkar

coming in his white Ambassador car bearing No.BHK-1426 from a

distance of 100-150 yards. He further claimed that a red bullet

motorcycle having two occupants intercepted the car followed by

another black Yamaha motorcycle also occupied by two persons

stopped on the right side of the car. The pillion rider on the red bullet

motorcycle shot at the driver of the car. The driver of bullet motorcycle

kept the motorcycle in start position. The pillion rider of black Yamaha

motorcycle resorted to indiscriminate firing on the person of Ajit Sarkar

with a weapon which appeared like A.K. 47. The accused driving

Yamaha motorcycle was firing from a small weapon. According to P.W.

8 accused persons riding the motorcycle killed the driver of the car


9

Hirendra Sharma, Ajit Sarkar and Asfaq Alam sitting on the rear seat of

the car and injured Ramesh Oraon, Bodyguard sitting in the front next

to the driver. According to P.W. 8 after the occurrence many people

gathered at the place of occurrence. The dead bodies and the injured

were taken to hospital in Ambulance. The dead body of Ajit Sarkar was

brought to his residence in the night of 14.6.1998. He further claimed

before the I.O., C.B.I. that local police arrived next day on 15.6.1998

between 10-11 A.M. to enquire from him about the incident. P.W. 8

declined to make any statement before the local police but gave the

local police blank paper with his signature as per the direction of the

police officer who had come to take his statement mentioning 14.6.1998

as the date beneath his signature. P.W. 8 identified his signature over

the fardbeyan, Ext. 27 which was marked as Ext. 1/4.

4. P.Ws. 9, 10 stated before the I.O., C.B.I. that they had

come to the residence of Ajit Sarkar on 14.6.1998 at about 4 P.M. as

Sri Sarkar had called them for providing hand pump but they could not

meet Sri Sarkar. P.W. 8 informed them (the witnesses) that Sri Sarkar

had gone to village Tharhara for panchayati. P.Ws. 9, 10 along with

P.W. 8 then decided to return to their village Rani Patra. While

returning P.Ws. 8 to 10 having come ahead of Kali flour mill near

culvert saw a white Ambassador car bearing No.BHK-1426 followed by

red bullet motorcycle driven by accused Anil Yadav and Harish


10

Chaudhary sitting as pillion rider. They also saw a black Yamaha

motorcycle driven by Amar Yadav over which Rajan Tiwary was the

pillion rider stopping on the right side of the car. Anil Yadav kept the

red bullet motorcycle in start position. The other three i.e. the driver of

the black motorcycle and the pillion riders of red bullet, black

motorcycle resorted to indiscriminate firing killing the driver of the car

Harendra Sharma, Ajit Sarkar and Asfaq Alam sitting on the rear seat of

the car as also inflicted grievous injury on the person of Ramesh Oraon,

P.W. 25 Bodyguard sitting in the front next to the driver. It would

appear from the statement of P.Ws. 8 to 10 made before the C.B.I.

investigator that they gave a consistent description of an unknown

assailant, who was later identified as Rajan Tiwary upon arrest and

consequent disclosure made by him in Delhi. Having recorded the

statement of P.Ws. 8, 10 the C.B.I. informed C.J.M., Purnia on

28.10.1998 about registration of RC 12(S)/98-SIC-IV/New Delhi, Ext.

37/1 incorporating the contents of the F.I.R. of K.Hat P.S. Case

No.230/98 and the fact that C.B.I. is investigating the said case. Sri

Abhijit Day, P.W. 28 Senior Scientific Officer-II, CFSL, C.B.I., New

Delhi submitted report no.690 dated 23.12.1998, Ext. 9 with regard to

three fired cartridges recovered at the spot stating that shots were fired

from single 7.62 M.M. assault rifle. S.P., C.B.I. (SIC-IV), New Delhi

vide his letter dated 5.1.1999 signed on 6.1.1999, Ext. 5/6 wrote to


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General Manager (Vigilance), MTNL, New Delhi asking for the name

of the subscriber of telephone nos. 3730767 and 3736358 including the

print out of the calls made from those numbers during the period

between 14.4.1998-31.12.1998. Sri K.K. Nayar, P.W. 12 S.D. Vigilance

(MTNL) on 15.1.1999 submitted call records of telephone no.

0113730767 Ext. 3/4 and 0113736358 Ext. 3/5 which were installed at

Delhi residence of Rajesh Ranjan.

5. Delhi police arrested Rajan Tiwary on 12.2.1999 in

connection with R.K. Puram P.S. Case No.122/99 registered for the

offences under Section 25 of the Arms Act. After arrest Rajan Tiwary

was interrogated on 12.2.1999 by the Crime Branch in Delhi (R.K.

Puram) P.S. Case No.122/99, he made disclosure pertaining to K. Hat

P.S. Case No.230/98. Rajan Tiwary was produced on 13.2.1999 in the

court of Sri K.S. Mohi, Metropolitan Magistrate, Patiala House in

connection with R.K. Puram P.S. Case No.122/99 vide remand

application dated 13.2.1999, Ext. F/4. Perusal of remand application

dated 13.2.1999 filed by S.I. Palbindar Singh of Special Team, Crime

Branch indicate that Rajan Tiwary was arrested from house no.14-D

Firoz Sah, Road, New Delhi and after his arrest he made disclosure

involving himself in murder of Ajit Sarkar, M.L.A., C.P.I. in Purnia,

Bihar. He also disclosed that he has kept one pistol in House No.558-A,

Sector-3, R.K. Puram, Delhi. Acting upon disclosure made by Rajan


12

Tiwary one 7.63 pistol make LLAMA, 15 live cartridges and other

articles were seized. It also appears from Ext. F/4 that investigation of

R.K. Puram P.S. Case No.122/99 is pending and Rajan Tiwary be

remanded to 14 days‘ judicial custody. In the light of the prayer made in

the remand application dated 13.2.1999, Ext. F/4 Rajan Tiwary was

remanded to judicial custody until 26.2.1999.

6. According to learned counsel for appellant Rajan Tiwary

P.W. 61 obtained illegal custody of Rajan Tiwary on 13.2.1999 from

S.I. Palbindar Singh, as would appear from the following endorsement

―received accused in muffled condition with warrant‖ made by P.W. 61

in the margin of petition dated 13.2.1999, Ext. F filed by S.I. Palbindar

Singh on the basis of which the Metropolitan Magistrate remanded

accused Rajan Tiwary to judicial custody till 26.2.1999. It is submitted

that bare perusal of Exts. F/4, F would indicate that S.I. Palbindar Singh

had filed petition dated 13.2.1999 before Sri K.S. Mohi, Metropolitan

Magistrate, Patiala House for obtaining judicial remand of Rajan Tiwary

for 14 days i.e. until 26.2.1999 but P.W. 61 having interpolated the

name of the Metropolitan Magistrate from K.S. Mohi to Duty

Magistrate obtained illegal custody of Rajan Tiwary until 23.2.1999

during which period subjected him (Rajan Tiwary) to sustained

interrogation by moving him from Delhi to Purnia and back. During the

period of sustained interrogation search warrant was also obtained on


13

17.2.1999 to search the house of the appellants. From Delhi house of

accused Rajesh Ranjan @ Pappu Yadav one photograph, material Ext.

VII was seized vide seizure memo Ext. 39 in which appellant Rajesh

Ranjan @ Pappu Yadav, his wife and child are seen with appellant

Rajan Tiwary. Appellant Anil Yadav was called to C.B.I. camp office at

Purnia on 17.2.1999, arrested and produced before the C.J.M., Purnea

on 18.2.1999 who remanded him to C.B.I. custody for 10 days under

order dated 18.2.1999 passed in K. Hat P.S. Case No.230/98. Anil

Yadav made disclosures on the basis of which red bullet motorcycle

was recovered from his house. He was again produced before the

C.J.M., Purnea on 28.2.1999 in K. Hat P.S. Case No. 230/98 as suspect.

Call details of Katihar P.C.O. booth no.34679 was obtained under

Memo No.18.2.1999, Ext. 3 which was issued under the signature of

Ramashray Rajak, P.W. 6 S.D. Telephone, Katihar. Appellant Rajan

Tiwary also made disclosures on 18/17.2.1999 leading to recoveries

vide Exts. 1/8, 1/9, 1/10. Appellant Rajan Tiwary was produced before

the Chief Metropolitan Magistrate, Delhi on 22.2.1999 and a petition,

Ext. 41 was filed to examine Rajan Tiwary under Section 164 Cr.P.C.

Chief Metropolitan Magistrate, Delhi endorsed the said petition to Sri

G.S. Saini, Metropolitan Magistrate, P.W. 59. Appellant Rajan Tiwary

with muffled face was thereafter produced by I.O., P.W. 61 before Sri

G.S. Saini at 12.30 P.M. who sent all the police personnel out of court


14

and made Rajan Tiwary to sit in his chamber. Sri Saini explained Rajan

Tiwary that he is not bound to make his statement. Sri Saini also

informed Rajan Tiwary that if he makes the statement the same shall be

used against him as evidence. Rajan Tiwary, however, insisted to make

the statement. Sri Saini thereafter gave Rajan Tiwary one hour time to

think over the matter again. Sri Saini again asked Rajan Tiwary in his

chamber at 1.15 P.M. whether he wants to give confessional statement.

Rajan Tiwary stated that he wants to bring real culprit to book and he is

making statement voluntarily. Sri Saini again warned Rajan Tiwary that

he is not bound to make confessional statement and his statement shall

be used as evidence against him but Rajan Tiwary persisted again for

making statement. Sri Saini thereafter put following questions to Rajan

Tiwary. (1) Why do you want to make confessional statement? Answer

:- I want to make statement as I want to improve myself and to disclose

the identity of the real culprit. (2) Whether you have been pressurized

by police or C.B.I. to make statement. Answer :- I have not been

pressurized by any one to record statement, which has been recorded as

per my own volition. Having put the aforesaid two questions Sri Saini

recorded the statement of Rajan Tiwary after writing that he is making

confessional statement voluntarily without any force from any quarter in

order to make clean breast. After recording the satisfaction Sri Saini

recorded the disclosure statement of Rajan Tiwary, which is as follows


15

:- ― He is resident of Gorakhpur. M/s. Sri Prakash Shukla and Anand

Pandey were the students of different colleges but they new him (Rajan

Tiwary). I (Rajan Tiwary) passed intermediate and took admission in

D.A.V. College, Gorakhpur. Sri Prakash Shukla and Anand Pandey

were then involved in crime and had connections with him (Rajan

Tiwary) as every college student desire that he has acquaintance with

those who are brash, lout, bully(Dabang). M/s. Sri Prakash Shukla and

Anand Pandey were Railway contractors and were in touch with

Surajbhan Singh of Bihar. In 1996 M/s. Sri Prakash Shukla, Anand

Pandey, Surajbhan Singh, Lalan Pandey committed murder in

connection with Railway contract in which he (Rajan Tiwary) was also

implicated as he had connections with them. In the last month of the

year 1996 Sri Prakash Shukla, Anand Pandey, Surajbhan Singh, Lalan

Pandey shot at Ex-M.L.A., Birendra Kumar Sahi, who escaped the

assault. His driver, however, was killed. On 31.3.1997 aforesaid persons

killed Birendra Kumar Sahi. In both the aforesaid incidents his (Rajan

Tiwary) name was also involved, although he was at his village after the

death of his grand-mother. In 1998 Sri Prakash Shukla, Anand Pandey,

Satwant Rai and one Tiwary(Sudhari) resorted to firing in Dahleez

Hotel, Lucknow from A.K.-47 in which Vivek Shukla was killed and

Bhanu Mishra leader of Shiv Sena party injured. He (Rajan Tiwary) was

also implicated in the said incident as he was absconder. Later Anand


16

Pandey, Bablu Tiwary, Hriday Chand Jaiswal snatched Esteem Car in

Banaras and resorted to firing in which also, he (Rajan Tiwary) was

implicated. On account of fear from the police he (Rajan Tiwary) began

to reside at his maternal house in Bihar. In the meantime, Sri Prakash

Shukla abducted one Rastogi from Lucknow and in the said case also he

(Rajan Tiwary) was implicated. In December, 1997 Devendra Nath,

M.L.A., Bihar introduced him (Rajan Tiwary) to Pappu Yadav and to

assume air of importance introduced him(Rajan Tiwary) as a veteran

criminal. Pappu Yadav lost the election. He (Pappu Yadav) had

animosity with Ajit Sarkar as both were Mafia. In the month of May,

1998 Pappu Yadav sent him (Rajan Tiwary) along with M/s. Raju

Yadav, Rajendra Yadav and Gopal Yadav to eliminate Ajit Sarkar but

he(Rajan Tiwary) came back from the way and informed Pappu Yadav

that he(Ajit Sarkar) did not come. On 13.6.1998 Brij Bihari Prasad was

killed by Sri Prakash Shukla, Anuj Pratap Singh, Sudhir Tiwary, Lalan

Singh in which case also his name (Rajan Tiwary) was involved. To

avoid police action he (Rajan Tiwary) went to Purnia along with Pappu

Yadav. Pappu Yadav along with his men Harish Chaudhary, Anil

Yadav, Amar Yadav had already chalked out a plan for elimination of

Ajit Sarkar. He (Rajan Tiwary) reached the residence of Pappu Yadav

the same day. He further states that even if he had not gone on the said

date Pappu Yadav had to get Ajit Sarkar eliminated on that date. Rajan


17

Tiwary having reached Arjun Bhawan of Pappu Yadav took bath. On

that date Pappu Yadav was in Delhi. Harish Chaudhary made Rajan

Tiwary speak to Pappu Yadav on telephone. Pappu Yadav asked Rajan

Tiwary to eliminate Ajit Sarkar and to accompany Harish Chaudhary

wherever he goes as per programme which is known to Harish

Chaudhary. Four persons, namely, Rajan Tiwary, Harish Chaudhary,

Anil Yadav, Amar Yadav moved in Purnia district on Bullet, Yamaha

motorcycle following Ambassador car of Ajit Sarkar. When the car

reached the brick soling and slowed down firing was made from A.K.-

47, .455, .48 revolver. After killing Ajeet Sarkar and others he (Rajan

Tiwary) and others came to the house of Pappu Yadav. Harish

Chaudhary kept the arms in a bag. After the occurrence Rajan Tiwary,

Amar Yadav came to Katihar. Rajan Tiwary telephoned Pappu Yadav at

Delhi from P.C.O. of Naiyar by which time Pappu Yadav was already

aware of the killing and asked Rajan Tiwary to go to such place where

he is asked to go by his men. Later he (Rajan Tiwary) went to Siliguri

and from there to Delhi and resided in the flat of Pappu Yadav. Before

coming to Delhi he (Rajan Tiwary) went to Siliguri, Darjeeling and

other places. At Delhi Rajan Tiwary resided in the bungalow of Pappu

Yadav at 9, Harish Chandra Mathur Lane and thereafter went to

Vaishno Devi, Sri Nagar along with Pappu Yadav and his wife and

thereafter resided in the flat of Pappu Yadav. Pappu Yadav had


18

provided Rajan Tiwary with a cell phone. Later he (Rajan Tiwary)

learnt that Pappu Yadav wanted to get him eliminated in encounter in

collusion with the officials of the Special Task Force of U.P.

Government so that entire evidence is wiped out. Having recorded the

statement Rajan Tiwary stated that he wants enquiry to be made and if

he is found guilty then be punished.

7. Having recorded the confessional statement of Rajan

Tiwary on 22.2.1999 his custody was given to I.O., P.W. 61 who again

produced Rajan Tiwary before Chief Metropolitan Magistrate, Delhi on

23.2.1999 when he was remanded to judicial custody in Tihar Jail.

Black Yamaha motorcycle bearing registration No. WB72-7109 was

seized on 25.2.1999 from Jogbani P.S. vide Ext. 33/2 which was

recovered in abandoned condition by Jogbani P.S. on 4.7.1998. Two

steel core portions of A.K. 47 bullets were recovered under memo dated

3.3.1999, Ext. 10 from Ambassador Car bearing registration No. BHK

1426 parked at Nitu da‘s garage, Purnea. After being lodged in Tihar

Jail on 23.2.1999 Rajan Tiwary filed undated application addressed to

C.M.M., Delhi informing the C.M.M. that he has been implicated in a

false case by the Crime Branch of Delhi Police. Perusal of the undated

application indicate that while Rajan Tiwary was in police custody he

was subjected to extensive beating, torture and other third degree

methods as also forced to sign various blank paper, written document


19

and false statements. He was also not allowed to meet anyone including

press person(s). Having come to jail custody he has learnt from others

about his statement which the police got published in newspaper, which

is wholly false. He further informed the C.M.M., Delhi that at the

instance of Sri D.P. Yadav he has not committed any crime and he has

no connection with the murder of Pritam Singh and that he has not taken

any money from D.P. Yadav. He is being implicated in the said case at

the instance of political leaders in connivance with the police. Having

informed the C.M.M., Delhi about the torture in police custody and the

design to implicate him in the murder of Pritam Singh Rajan Tiwary

requested the C.M.M. to ensure that he is not remanded in the said case,

otherwise he is likely to be eliminated in police encounter and requested

the C.M.M. to take action against those who have fabricated his

statement. Aforesaid application of Rajan Tiwary was forwarded to

C.M.M., Delhi by the Deputy Superintendent, Central Jail No. 5, Tihar,

New Delhi under letter no. 181 dated 1.3.1999. Rajan Tiwary was

produced from judicial custody before Chief Metropolitan Magistrate,

Delhi on 9.3.1999 when he was represented by Sri S.A. Hashmi,

Advocate and according to counsel for C.B.I. a prominent criminal

lawyer of Delhi, C.M.M., Delhi, however, ordered that Superintendent,

Central Jail, Tihar may arrange for transfer of Rajan Tiwary to the

concerned jail for his appearance before Special Judicial Magistrate,


20

C.B.I., Patna on or before 23.3.1999. Rajan Tiwary was transferred to

Adarsh Central Jail, Beur, Patna and produced before Special Judicial

Magistrate, C.B.I. Patna on 22.3.1999 and remanded to judicial custody.

Report no. 141 dated 22.3.1999, Ext. 9/1 was received under signature

of Sri Rup Singh, P.W. 33 to the effect that two steel core portions

recovered from the car of the deceased on 3.3.1999 were fired from 7.62

M.M. assault rifle. Call records of telephone nos. 23150, 23929 and

23446 installed at Purnea residence of Rajesh Ranjan @ Pappu Yadav

were received on 26.3.1999 by the C.B.I. under the signature of S.Z.

Hassan, P.W. 11. Report no. 171 dated 1.4.1999, Ext. 9/2 also issued

under the signature of Rup Singh, P.W. 33 was received to the effect

that multiple holes found in the Ambassador Car of the deceased was

caused by passage of 7.62 M.M. bullet. Having come to Patna Rajan

Tiwary again filed retraction application dated 31.3.1999 and 21.4.1999

before the Special Magistrate, C.B.I., Patna. Rajan Tiwary was

subjected to Test Identification Parade in Adarsh Central Jail, Beur,

Patna on 1.5.1999 conducted by Sri Dharmsheel Srivastava, Judicial

Magistrate, Ist Class, P.W. 17. P.W. 8 identified the suspect in 5th

attempt as would appear from the memorandum dated 3.5.1999, Ext. 7

prepared by the T.I. Magistrate, P.W. 17. C.B.I. submitted charge sheet

no. 01 on 10.5.1999 before the Special Magistrate, C.B.I., Patna finding

the accusation made against the appellant Anil Yadav and Rajan Tiwary


21

to be true. Another T.I.P. was arranged on 12.5.1999 which was

conducted by Sri Ravindra Patwari, Judicial Magistrate, Ist Class, P.W.

13 vide T.I. chart, Ext. 6 in which P.Ws. 9 and 10 identified Rajan

Tiwary vide T.I. chart Ext. 6. Appellant Rajesh Ranjan @ Pappu Yadav

was arrested on 23.5.1999. C.B.I. Magistrate took cognizance of the

offence under order dated 16.7.1999 in the light of the charge sheet

dated 10.5.1999 and summoned the accused to face trial. C.B.I. filed

supplementary charge sheet no. 04 on 19.8.1999 finding the accusation

true against appellant Rajesh Ranjan @ Pappu Yadav. I.O. C.B.I., P.W.

61 also filed separate application dated 15.9.1999 for discharge of

accused sent up for trial by the Bihar police under charge sheet dated

20/21.9.1998. Special Magistrate, C.B.I., Patna under order dated

15.9.1999 discharged the accused sent up for trial by the Bihar police

under charge sheet dated 20-21.9.1998. Additional Sessions Judge-XI

cum C.B.I. Court, Patna under order dated 19.08.2000 framed common

charges separately against the three appellants. Against Rajesh Ranjan

@ Pappu Yadav charge was framed for the offences under Sections

302/34, 307/34, 120-B read with Sections 302, 307 I.P.C. and Section

27 of the Arms Act. Against Anil Yadav charge was framed under

Sections 302/34, 307/34, 120-B read with 302, 307 I.P.C. and Section

27 of the Arms Act. Against Rajan Tiwary charge was framed under

Sections 302/34, 307/34, 120-B read with 302, 307 I.P.C. and Section


22

27 of the Arms Act. The other two accused i.e. Harish Chaudhary and

Amar Yadav remained absconding and their trial was segregated.

Additional Sessions Judge-XI cum C.B.I. Court, Patna received on

7.1.2002 the entire case records of K. Hat P.S. Case No.230/98 from the

court of C.J.M., Purnea in compliance of the order of the High Court

dated 11.12.2001 passed in Cr. Rev. No.883 of 2001.

8. In support of the prosecution case following 61

witnesses have been examined. Pratap Yadav P.W. 1, Rasik Hembram

P.W. 2, Priyank Mittal P.W. 3, Birendra Prasad Sharma P.W. 4,

Bhuneshwar Lal Das P.W. 5, Ramashray Rajak P.W. 6, Ravindra Nath

Singh, P.W. 7, Kalyan Chandra Sarkar P.W. 8, Madhusudan Rishi P.W.

9, Lal Bahadur Oraon P.W. 10, S.Z. Hassan P.W. 11, K.K. Naiyar P.W.

12, Ravindra Patwari P.W. 13, Sunil Kumar Singh P.W. 14, Domai

Thakur P.W. 15, Shambhoo Prasad Mehta P.W. 16, Dharmsheel

Shrivastava P.W. 17, Shailendra Kumar Jha P.W. 18, Ranu Kumar

Singh P.W. 19, Subodh Yadava P.W. 20, Rajendra Prasad Goswami

P.W. 21, Noor Mohammad P.W. 22, Upendra Shukla P.W. 23, R.K.P.

Verma P.W. 24, Ramesh Oraon P.W. 25, Manoj Chaudhary P.W. 26,

Mahesh Kumar Malkani P.W. 27, Abhijit Day P.W. 28, B.K. Bhardwaj

P.W. 29, A.D.K. Dhand P.W. 30, Dr. Manindra Kumar Singh P.W. 31,

Dr. Basant Kumar Sinha P.W. 32, Rup Singh P.W. 33, Rajiva Acharya

P.W. 34, Arunmay Samddar P.W. 35, Dinesh Yadava P.W. 36, Uttam


23

Sinha P.W. 37, Swapan Kumar Chandra P.W. 38, Gurnam Singh alias

Name Singh P.W. 39, Sanjay Kumar alias Sanjay Upadhya P.W. 40,

Kunda Singh P.W. 41, Raju Parihar P.W. 42, Manotosh Maitro, P.W.

43, Babul Datta P.W. 44, Shivanath Ghosh P.W. 45, Dilip Kumar Singh

P.W. 46, Divya Prakash P.W. 47, Pankaj Kumar Yadav P.W. 48,

Chandradeep Sharma P.W. 49, Dr. R.D. Raman P.W. 50, Dr. Durga

Nand Mehta P.W. 51, Om Prakash Ramnani P.W. 52, Sukhvindra Singh

P.W. 53, Hansraj Pamnani P.W. 54, Pradeep Sarkar alias Fatka P.W. 55,

Arvind Kumar Jha P.W. 56, M.L. Meena P.W. 57, Rajiv Chandrola

P.W. 58, Gurdeep Singh Saini Saini P.W. 59, Shiva Charan P.W. 60 and

Narendra Singh Kharayat P.W. 61. Sub-Inspector Palvinder Singh

Chahal of Delhi Police has been examined as court witness no.1. P.Ws.

1, 2, 21, 22, 23, 24, 26, 27, 34, 35, 36, 37, 39, 40, 41, 42, 43, 45, 46, 48,

54 and 55 have been declared hostile. Priyank Mittal, P.W. 3 is the

author of letter, Ext. 1/2 wherefrom it appears that Rajesh Ranjan @

Pappu Yadav was allotted quarter during the period between

17.01.1997-21.09.1998 in Harish Chandra Mathur Lane. Birendra

Prasad Sharma, P.W. 4 is the brother of deceased Hirendra Sharma and

has been tendered for cross-examinaton as he stated about the C.B.I.

attrocity, influence and highhandedness for supporting the prosecution

case. Bhuneshwar Lal Das, P.W. 5 is the author of letter dated

23.10.1998, Ext. 2 indicating election details of appellant Rajesh Ranjan


24

in response to the information sought by the C.B.I. Ramashray Rajak,

P.W. 6 at the relevant time served as Sub-Divisional Engineer

(Telephone), Katihar who has furnished print out of Katihar telephone

booth No. 34679 and telephone no. 33611, Exts. 3, 4. Ravindra Nath

Singh, P.W. 7 stated that Rajesh Ranjan @ Pappu Yadav and Ajit

Sarkar have political rivalry. The witness further stated that he learnt

from P.W. 20 through a chit dated 8.6.1998 that Rajesh Ranjan @

Pappu Yadav hired Rajan Tiwary to kill Ajit Sarkar. Kalyan Chandra

Sarkar, Madhusudan Rishi, Lal Bahadur Oraon, P.Ws. 8, 9, 10 are the

eye witnesses of the occurrence. They have, however, disowned their

statement given to the Inspector, A.K. Jha of Bihar (Purnea) police,

P.W. 56 the scriber of fardbeyan of K. Hat P.S. Case No. 230/98 on the

statement of informant, P.W. 8 and also further statement of the

informant and statement of eye witnesses P.Ws. 9, 10 recorded in the

night between 14-15.6.1998. S.Z. Hassan, P.W. 11 is the Divisional

Engineer, Purnea who has issued print out of telephone nos. 23150,

23929 and 23446, Exts. 3/1, 3/2 and 3/3. K.K. Naiyar, P.W. 12 has

issued telephone print out of Delhi telephone nos. 3730767 and

3736358, Exts. 3/4, 3/5 in response to letter from C.B.I. dated 5.1.1999.

Ravindra Patwari, P.W. 13 is the then Judicial Magistrate, Patna who

conducted Test Identification Parade on 12.5.1999 and submitted report

dated 12.5.1999, Ext. 6 wherefrom it appears that Rajan Tiwary was


25

identified by P.Ws. 9, 10. Sunil Kumar Singh, P.W. 14 is the District

Secretary of C.P.M. party who was present at the house of Ajit Sarkar

on 14.6.1998 at 5.10 P.M. and has stated that it was Subhash Singh who

came to the residence of Ajit Sarkar at about 5.10 P.M. and gave

information about his killing. He is also witness to the dead body

challan of Ajit Sarkar, material Ext. VI. Domai Thakur, Shambhoo

Prasad Mehta, P.Ws. 15, 16 had come to Harda for marketing on

14.6.1998 and while sitting in the Tea shop had seen red bullet and

black motorcycle taking rounds in the market. Later they also saw the

two motorcycles following the white Ambassador car of Ajit Sarkar.

Dharmsheel Shrivastava, P.W. 17 is another Judicial Magistrate who

conducted second Test Identification Parade on 1.5.1999 and submitted

report dated 3.5.1999, Ext. 7. Shailendra Kumar Jha, P.W. 18 is the

Crime Reader in the office of Superintendent of Police, Purnea who has

proved criminal case history of Rajesh Ranjan @ Pappu Yadav dated

31.10.1998 issued under the signature of the then S.P., Purnea Sri R.S.

Bhatti, Exts. 5/1, 5/2 and 5/3. Ranu Kumar Singh, P.W. 19 has his house

10-12 steps away from the place of occurrence. Having heard the sound

of firing he came to the place of occurrence and is also witness to the

inquest report of Ajit Sarkar. He has further stated that Kalyan Chandra

Sarkar arrived 45 minutes after the occurrence and asked the persons

present at the place of occurrence as to who is the assailant of his


26

brother and others. Subodh Yadava, P.W. 20 also heard that assailant

has been hired to kill Ajit Sarkar and Dilip Yadav. Ramesh Oraon, P.W.

25 is the injured Bodyguard of Ajit Sarkar. Abhijit Day, P.W. 28 is the

Head of C.F.S.L., New Delhi who submitted report Ext. 9 dated

3.3.1999 about the three fired/empty cartridges recovered from the place

of occurrence. B.K. Bhardwaz, P.W. 29 has put his signature over

material exhibit VII, photograph of Rajesh Ranjan @ Pappu Yadav, his

wife, child and Rajan Tiwary which has been marked as Ext. 1/19, 1/20.

A.D.K. Anand, P.W. 30 is the witness of seizure of the photograph,

material Ext. VII. Dr. Manindra Kumar Singh, P.W. 31 is the surgeon

who has put his signature over the bed head ticket of injured Ramesh

Oraon, P.W. 25. Dr. Basant Kumar Sinha, P.W. 32 is the doctor who

conducted post mortem on the dead body of the deceased. Rup Singh,

P.W. 33 is the Principal Scientific Officer who inspected the car of the

deceased on 3.3.1999 and recovered two steel core portions which is

disintegrated bullet part from assault rifle of 7.62 M.M. Swapan Kumar

Chandra, P.W. 38 is the S.I. of West Bengal police posted at Silliguri

who recorded his statement under Section 164 Cr.P.C. to disprove the

alibi of Harish Chaudhary. Babul Datta, P.W. 44 the Assistant Manager,

Hotel Shardhanjali has been examined to prove the guest register of

Hotel Shardhanjali, column nos. 1 and 11, which is in his writing, Exts.

22, 22/1 and hotel bill book, Ext. 23. Divya Prakash, P.W. 47 is the


27

owner of a press and social worker. Chandradeep Sharma, P.W. 49 is

the record keeper of Sadar Hospital, Purnea who has proved documents

to suggest that Ramesh Oraon, P.W. 25 was treated in O.P.D. of the

hospital, Ext. 24. Dr. R.D. Raman, P.W. 50 is the doctor who examined

injured Ramesh Oraon. Dr. Durga Nand Mehta, P.W. 51 also attended

on injured Ramesh Oraon, P.W. 25. Om Prakash Ramnani, P.W. 52 is

the husband of the owner of Katihar P.C.O. No.34679. Sukhvindra

Singh, P.W. 53 at the releant time was serving as Inspector in Delhi

Police in whose presence R.K. Puram P.S. Case No.122/99 was

registered on 12.2.1999 on the basis of the disclosure statement made by

Rajan Tiwary which was recorded by Sub-Inspector Palvinder Singh in

his presence. Arbind Kumar Jha, P.W. 56 is the Investigating Officer of

K.Hat P.S. Case No.230/98 who recorded the fardbeyan of P.W. 8 on

the basis of which K.Hat P.S. Case No.230/98 has been registered and

submitted charge sheet dated 20-21.9.1998 in the court of C.J.M.,

Purnia. M.L. Meena, P.W. 57 is the Inspector of C.B.I. who assisted

I.O. of the case, P.W. 61. Rajiv Chandrola, P.W. 58 is the Inspector of

C.B.I. who also assisted the I.O. P.W. 61. Gurdeep Singh Saini Saini,

P.W. 59 is the Metropolitan Magistrate, Delhi who recorded the

confessional statement of Rajan Tiwary. Shiva Charan, P.W. 60 is the

Metropolitan Magistrate, Delhi who proved the signature of Sri Guaba,

C.M.M., Delhi, Ext. 36/2. Narendra Singh Khairayat, P.W. 61 is the


28

Investigating Officer of the case.

9. Besides the aforesaid oral evidence prosecution has

produced the following documentary evidence. Ext. 1 series are

signatures on various documents. Exts. 2 series, 5, 29 series are

different letters. Ext. 3 series are telephone print out indicating that call

of long duration made in the morning of 14.6.1998 from Delhi residence

of appellant Rajesh Ranjan @ Pappu Yadav to his Purnia residence. It

was further pointed out with reference to Ext. 3 series that on the date of

occurrence at 18 hour 16 minute 48 second call of 42 second duration

and at 18 hour 18 minute and 16 second call of 32 second duration was

made from Katihar P.C.O. telephone no.34679 to Delhi residence of

appellant Rajesh Ranjan on telephone nos. 3730767 subscribed in the

name of appellant Rajesh Ranjan and on telephone no.3736358

subscribed in the name of his wife. On the same day at 20 hour 08

minute 41 second call from same P.C.O. of one minute 26 second was

made to the Gorakhpur residence of appellant Rajan Tiwary on

telephone no.0551322035. Ext. 4 is telephone bill. Ext. 6 is T.I. Chart of

appellant Rajan Tiwary. Ext. 7 is T.I. report. Ext. 8, 42 are the

notification dated 11.8.1998, 28.9.1998 issued by the Government of

Bihar and Union of India granting consent and taking over investigation

of K. Hat P.S. Case No.230/98. Ext. 9 series are reports. Ext. 10 is

memo. Ext. 11 is bed head ticket of injured Ramesh Oraon, P.W. 25.


29

Ext. 12/1 is endorsement on letter. Ext. 13 series are post mortem

reports of the three deceased. Ext. 14 is writing and signature on the

back of photograph. Exts. 15 and 15/1 are writing and signature. Ext. 16

is memo of arrest. Exts. 17, 18 are bond and bail bond. Ext. 19 is

prosecution report. Ext. 20 is order sheet. Ext. 21 is statement under

Section 164 Cr.P.C. Ext. 22 series are entry in register. Ext. 23 is hotel

bill. Ext. 24 is out patient department (emergency register) indicating

injuries on the person of Ramesh Oraon, P.W. 25. Ext. 25 is admission

register. Ext. 26 is seizure list. Ext. 27 is fardbeyan. Ext. 28 is

application. Exts. 30, 30/1 are writing and signature on supplementary

case diary. Ext. 31 is formal F.I.R. Ext. 32, 33 series are seizure memo.

Exts. 34 and 34/1 are signature of accused Rajan Tiwary on his

confessional statement. Ext. 35 is confessional statement of accused

Rajan Tiwary. Ext. 36 series are endorsement of Chief Metropolitan

Magistrate and Metropolitan Magistrate, Delhi on the application filed

by I.O. for recording the confessional statement of Rajan Tiwary. Exts.

37, 37/1 are signatures on F.I.R., Ext. 38 series are inquest reports. Ext.

39 is search list. Ext. 40 is recovery and seizure memo. Ext. 41 is

application. Exts. 43, 43/1 are disclosure statements of appellants Anil

Kumar Yadav and Rajan Tiwary.

10. Besides the aforesaid documentary evidence the

prosecution has also produced the following material exhibits. Ext. I, I/2


30

are cartridges. Ext. II is box. Ext. II/1 is sealed cloth. Exts. III to III/3

are envelopes. Exts. IV, IV/1 are sealed covers. Ext. V is hotel register.

Exts. VI, VI/2 are dead body challan. Ext. VII is photograph.

11. The defence of the appellants is complete denial but

they have examined 27 witnesses, namely, Prabhat Prasad Yadav D.W.

1, Amod Kumar Chaudhary D.W. 2, Jagat Jaiswal D.W. 3 Sanjay

Kumar Yadava D.W. 4, Ajay Kumar D.W. 5, Shankar Yadava D.W. 6,

Pawan Kumar D.W. 7, Raj Kumar Jaiswal D.W. 8, Ziaul Haq D.W. 9,

Md. Nazmul Hoda D.W. 10, Arvind Prasad Yadava D.W. 11, Mani

Bhushan Prasad D.W. 12, Prabhash Chandra Yadava D.W. 13, Ram

Charitra Yadava D.W. 14, Md. Afaq Alam D.W. 15, Ramdeo Prasad

D.W. 16, Shyamanand Yadava D.W. 17, Santosh Kumar D.W. 18, Lal

Bahadur Singh D.W. 19, Kripanath Das D.W. 20, Madhumita Devi

D.W. 21, Naresh Bishwas D.W. 22, Sanjay Kumar Yadava D.W. 23,

Kashinath Gupta D.W. 24, Jaikant Paswan D.W. 25, Rajiv Kumar

Chaudhary D.W.26 and Bhai Shamsuddin, D.W. 27.

12. Besides examining defence witnesses they have also

produced the following documents. Ext. A is prescription. Ext. B is

signature of Bilin Chand Sarkar on fardbeyan of K. Hat P.S. Case

No.230/98. Exts. C to C/5 are information slip. Ext. D is endorsement of

C.M.M. Ext. E is certified copy of F.I.R. of K. Nagar P.S. Case

No.260/92. Ext. E/1 is certified copy of F.I.R. of K. Nagar P.S. Case


31

No. 46/93. Ext. F is certified copy of petition for judicial remand of

Rajan Tiwari. Exts. F/1, F/2, F/3 and F/4 are certified copies of petitions

for judicial remand of Rajan Tiwari. Ext. G is survey map of village

Maranga. Ext. H is certified copy of order sheet of R.K. Puram P.S.

Case No.122/99.

Submission on behalf of appellant Rajan Tiwary

13. Learned counsel for appellant Rajan Tiwary submitted

that the three eye witnesses, namely, P.W. 8, 9, 10 cannot be relied upon

as they are the residents of village Rani Patra, which is 7 kilometers

away from the place of occurrence reached the place of occurrence 45

minutes after the occurrence, which would appear from the evidence of

Ranu Kumar Singh, P.W. 19 paragraph 8 and injured Ramesh Oraon,

P.W. 25 paragraphs 8, 9 and 10 that he remained at the place of

occurrence for about half an hour after the occurrence and the eye

witnesses were not seen by him. P.W. 25 has further stated in paragraph

2 that Subhash Singh was first to arrive at the place of occurrence and

that Subhash Singh rescued him from the car. Aforesaid statement of the

injured P.W. 25 contradicts the eye witnesses that they were the first to

reach the place of occurrence. Sunil Kumar Singh, P.W. 14 has also

corroborated Ramesh Oraon, P.W. 25 about the presence of Subhash

Singh and has stated that it was Subhash Singh who gave information at

the house of Ajit Sarkar about the murder at 5 P.M. According to


32

learned counsel for appellant Rajan Tiwary the evidence of P.Ws. 19,

25, 14 have not been challenged by the prosecution, their evidence is

binding on the prosecution. Reliance in this connection was placed on

the judgment of the Supreme Court in the case of Javed Masood and

Another Vs. State of Rajasthan, AIR 2010 Supreme Court 979,

paragraphs 9, 10, 13 to 16.

14. Learned counsel for the appellant Rajan Tiwary further

submitted that from paragraph 8 of the evidence of Ranu Kumar Singh,

P.W. 19, it would appear that when Kalyan Chandra Sarkar, P.W. 8

came to the place of occurrence after 45 minutes of the occurrence he

asked as to who killed his brother and others. It is submitted with

reference to the observation of the Supreme Court in the case of Govind

Narain and Another Vs. State of Rajasthan, AIR 1993 Supreme

Court 2457, paragraph 6 that as P.W. 8 reached the place of

occurrence after 45 minutes of the occurrence and he was making

enquiry as to who killed his brother, his evidence is fit to be discarded

in view of the testimony of independent witness Ranu Kumar Singh,

P.W. 19 paragraph 8.

15. It is further pointed out by learned counsel for appellant

Rajan Tiwary that Ranu Kumar Singh, P.W. 19 and Ramesh Oraon,

P.W. 25 have stated in their evidence that Ramesh Oraon P.W. 25 was

sent to hospital in a tempo but as per the testimony of the three eye


33

witnesses, namely, P.Ws. 8, 9, 10 P.W. 25 was sent to the hospital in

Ambulance along with the three dead bodies which is indicative of the

fact that eye witnesses were not present when Ramesh Oraon P.W. 25

was sent to the hospital. In this connection, reliance is also placed on the

evidence of Madhumita Devi, D.W. 21 daughter of Kalyan Chandra

Sarkar, P.W. 8 as she has stated in her evidence that the three eye

witnesses were present at Rani Patra when news of murder of her uncle

reached the village. It is also submitted that no reason has been

attributed to her by the prosecution for giving false evidence.

16. Learned counsel for appellant Rajan Tiwary further

submitted that Kalyan Chandra Sarkar P.W. 8 has falsely denied that he

lodged the fardbeyan, Ext. 27 and made case diary statements. Lodging

of the fardbeyan Ext. 27 and further statements made by him has been

established by Sri A.K.Jha, P.W. 56 in examination in chief. The

evidence of P.W. 56 has not been challenged by the prosecution nor has

any suggestion been made to him that he fabricated the fardbeyan.

Moreover, Kalyan Chandra Sarkar having admitted his signature on the

fardbeyan the evidence of Sri A.K. Jha is required to be accepted as

earlier to making his statement before the I.O., C.B.I. on 24.10.1998

disowning his statement made before Inspector A.K. Jha, P.W. 56 on

14.6.1998 that A.K. Jha took his signature on blank paper on 15.6.1998,

he never made complaint before any authority that his signature was


34

taken by Inspector A.K. Jha, P.W. 56 on blank paper on 15.6.1998 with

date 14.6.1998 beneath his signature. The contents of the fardbeyan are

detailed and it is not possible to believe that the Investigating Officer

imagined those details and prepared Ext. 27. Reliance in this

connection, is placed on the judgment of the Supreme Court in the case

of Sarwan Singh and Others Vs. State of Punjab, (1976) 4 SCC 369,

paragraph 8 at page 375, Kanti Kumari Roy Vs. Suresh Kumar Roy

and others, AIR 1990 Supreme Court 1631, paragraph 6 and Khujji @

Surendra Tiwari Vs. State of Madhya Pradesh, (1991) 3 SCC 627,

paragraph 6.


submitted that K.C. Sarkar, P.W. 8 has been extensively contradicted by

his own statement on the basis of which fardbeyan, Ext. 27 and further

statement under Section 161 Cr.P.C. was recorded by Inspector A.K.

Jha, P.W. 56. In the fardbeyan and further statement P.W. 8 has stated

that assailants on the motorcycle were Jawahar Yadav, Abdul Sattar,

Diwakar Choudhary and Pappu Dev. Bipin Singh and 6-7 others came

in a car. In court he has excluded the assailant named in the fardbeyan

and substituted them by Anil Yadav, Harish Choudhary, Amar Yadav

and Rajan Tiwary. Change in the name of the accused persons in the

court cannot be permitted where witness makes two inconsistent

statements in their evidence either at one stage or at two stages. The


35

testimony of such witness becomes unreliable and unworthy of

credence. In absence of special circumstances no conviction can be

based on the evidence of witness who has given inconsistent evidence.

Reliance in this connection, is placed on the judgment of the Supreme

Court in the case of Hallu and Others Vs. State of Madhya Pradesh,

(1974) 4 SCC 300, paragraphs 6, 7, State of Haryana Vs. Gurdial

Singh and Another, (1974) 4 SCC 494, paragraph 21, Suraj Mal Vs.

The State (Delhi Administration), AIR 1979 Supreme Court 1408

and Ahmed Bin Salam Vs. State of Andhra Pradesh, AIR 1999

Supreme Court 1617, paragraph 5.

18. From the deposition of P.W. 8, it further appears that he

has falsely denied that Purnia police did not come to the place of

occurrence on 14.6.1998. He is also not to be believed because he did

not inform the local police that he is an eye witness but disclosed such

fact to the C.B.I. vide paragraph 7 of his evidence when C.B.I. came to

investigate the case four months later. P.W. 8 is further not to be

believed as he did not disclose about the incident either to the widow of

Ajit Sarkar or his son, as would appear from paragraph 15 of his

evidence. P.W. 8 is also not to be believed because he never lodged any

complaint prior to his deposition that police has wrongly recorded his

fardbeyan and case diary statements vide paragraph 7 of his deposition.

P.W. 8 also did not make any complaint that Bipin Singh has wrongly


36

been arrested vide paragraph 2 of his evidence. It is submitted with

reference to aforesaid infirmities in the evidence of P.W. 8 that P.W. 8

being the brother of the deceased, although had no motive to implicate

the appellants but was persuaded to give evidence in support of the case

implicating the appellants but such evidence cannot be accepted on

account of infirmities noted above. Reliance in this connection is placed

on the judgment of the Supreme Court in the case of Rambilas and

others Vs. State of Madhya Pradesh, AIR 1997 Supreme Court

3954.

19. Madhusudan Rishi, P.W. 9 is also not fit to be relied as

he being member of C.P.M. District Committee is highly interested in

success of the prosecution. He is also not to be relied as he knew Anil

Yadav, Harish Chaudhary, Amar Yadav by face and name prior to the

occurrence but his failure to disclose their names to P.W. 8 renders the

prosecution story false. Reliance in this connection is placed on the

judgment of the Supreme Court in the case of Hari Nath and another

Vs. State of U.P., AIR 1988 Supreme Court 345. P.W. 9 is also not to

be relied as he did not disclose the local police that he is an eye witness

but disclosed such fact after four months to the C.B.I. He also stands

extensively contradicted in the light of his case diary statements

recorded by A.K. Jha, P.W. 56. Even though P.W. 9 stated that he

informed his party workers regarding identity of the assailants but not a


37

single party worker has been examined to corroborate him. On the

contrary I.O., C.B.I., P.W. 61 stated that he could not locate any party

worker to whom P.W. 9 had disclosed the name of the assailants.

Aforesaid false evidence given by P.W. 9 shakes the foundation of

prosecution case. Reliance in this connection has been placed on the

judgment of the Supreme Court in the case of Sohan and another Vs.

State of Haryana and another, AIR 2001 Supreme Court 1380,

paragraph 28. P.W. 9 is also not to be relied as he stands contradicted

by injured P.W. 25 as according to P.W. 9 injured was sent to hospital

in Ambulance, which is incorrect in view of the evidence of the injured

that he went to hospital in Tempo. Lastly it is submitted that P.W. 9

having not disclosed the local police soon after the incident that he is an

eye witness no reliance can be placed on his evidence. Reliance in this

connection, has been placed on the judgment of the Supreme Court in

the case of State of Orissa Vs. Mr. Brahmananda Nanda, AIR 1976

Supreme Court 2488, Bachhu Narain Singh Vs. Naresh Yadav and

others, AIR 2004 Supreme Court 3055 and Ramreddy

Rajeshkhanna Reddy and Anr. Vs. State of Andhra Pradesh, AIR

2006 Supreme Court 1656, paragraphs 4, 5 and 6.

20. Learned counsel for Rajan Tiwary also submitted that

evidence of Lal Bahadur Oraon, P.W. 10 is also not fit to be relied as he

is resident of village Rani Patra and knew the deceased Ajit Sarkar since


38

the childhood, which is evident from paragraph 2 of his evidence, as

such, highly interested in success of the prosecution. P.W. 10 is further

not to be relied as having counter-signed the fardbeyan, Ext. 27 on

14.6.1998 falsely denied such fact. P.W. 10 also new Anil Yadav, Amar

Yadav and Harish Chaudhary from before but did not disclose their

names to P.W. 8 vide paragraph 10 of the evidence of P.W. 8. He also

did not disclose the names of the assailants to the wife of the deceased

vide paragraph 10 of the evidence of P.W. 10. He also did not inform

local police that he is an eye witness vide paragraph 6 and 7 of his

evidence. He disclosed the fact that he is an eye witness to the

occurrence one month after the incident vide paragraph 2 of his

evidence. In paragraph 6 of his evidence he has stated that about 100-

150 shots were fired and that each deceased sustained about 50-60

bullet injuries, which stands contradicted by the evidence of the doctor

conducting autopsy on the person of the three deceased, Dr. Basant

Kumar Singh, P.W. 32 found Ajit Sarkar sustained two gun shot

injuries. Asfaq Alam and Harendra Sharma sustained one gun shot

injury each. It is submitted that P.W. 10 is also fit to be rejected for the

reasons which have been indicated above while dealing with the

evidence of P.W. 9.

21. Learned counsel for the appellant Rajan Tiwary further

challenged the confessional statement made by Rajan Tiwary, Ext. 35


39

and submitted that I.O., P.W. 61 illegally took accused Rajan Tiwary in

his custody on 13.2.1999 and kept him in wrongful confinement till

22.2.1999. During the aforesaid period Rajan Tiwary was kept

incommunicado and subjected to sustained interrogation by a team of

four officers, vide paragraph 57 of the evidence of I.O., P.W. 61.

According to learned counsel there is no judicial order from any court

directing police remand of Rajan Tiwary to P.W. 61. Realizing this

illegality P.W. 61 subsequently committed forgery with judicial record,

Ext. F/4 and made interpolation thereupon by writing ―received accused

in muffled condition with warrant‖ and thereby committed interpolation

in the judicial record, Ext. F by interpolating Ext. F/4. Reference in this

connection, is made to the observations of the trial court in paragraph 41

of the impugned judgment. It is further submitted that Exts. F, F/4 were

marked as defence exhibit without objection from the prosecution.


submitted that Rajan Tiwary remained in police custody for 9 days from

13.2.1999 till 21.2.1999 and produced in the court of Sri Saini on

22.2.1999 at 12.30 P.M. whereafter Sri Saini allowed Rajan Tiwary 45

minutes to reflect if he wishes to make confession. According to learned

counsel grant of 45 minutes time to reflect is contrary to the dictum laid

down by the Constitution Bench of the Apex Court. It is further

submitted that confession recorded by Rajan Tiwary is further bad for


40

the reason that Sri Saini failed to inform Rajan Tiwary that he is a

Magistrate. The confession of Rajan Tiwary is also bad for the reason

that Sri Saini did not inform Rajan Tiwary that he would not be handed

over to the C.B.I. if he did not make the confession. In fact, Rajan

Tiwary was handed over to the C.B.I. after the confession vide evidence

of I.O., P.W. 61 paragraph 176 and paragraph 25 of the evidence of

P.W. 59 Magistrate recording the confession.

23. According to learned counsel for appellant Rajan Tiwary

the confession is further bad for the reason that Sri Saini, P.W. 59

neither enquired from Rajan Tiwary whether he has been subjected to

third degree by the police nor checked his body. The medical

examination certificate of Rajan Tiwary dated 21, 22.2.1999 was not

produced vide paragraph 172, 171 of the evidence of I.O., P.W. 61.

24. Learned counsel further submitted that from perusal of

the order passed by Sri Saini, P.W. 59 on 22.2.1999 at 12.30 P.M. and

1.15 P.M. when Rajan Tiwary was produced before him for recording

his statement, it would appear that P.W. 59 recorded his statement as

Rajan Tiwary was insisting on making the confession, which is sure

proof that he was coerced.

25. It is further submitted that three important pages of the

confession i.e. page nos. 3, 4 and 5 has not been signed by Rajan

Tiwary, as such, confession is not in accordance with law and fit to be


41

ignored.

26. Learned counsel also submitted that confession of Rajan

Tiwary is not voluntary as before recording his confession Rajan Tiwary

was identified by I.O., P.W. 61 who was standing outside the court

room while Rajan Tiwary was recording his confession and after the

confession was recorded Rajan Tiwary was handed over to I.O., which

is evident from the evidence of P.W. 59, paragraphs 17, 29, 32. In view

of the submissions noted in paragraphs 22 above, it is submitted that

Rajan Tiwary having not been allowed at least 24 hours time for

reflection the confession recorded by him on 22.2.1999 at his insistence

is wholly involuntary and fit to be rejected in view of the judgment of

the Supreme Court in the case of Kartar Singh Vs. State of Punjab,

(1994) 3 SCC 569, paragraph 390 at page 727 and Sarwan Singh

Rattan Singh Vs. State of Punjab, AIR 1957 Supreme Court 637,

paragraph 10.

27. It is further submitted that prolonged police (C.B.I.)

custody is conclusive proof of coercion. Reference in this connection is

made to the judgment of the Supreme Court in the case of Nathu Vs.

State of Uttar Pradesh, AIR 1956 Supreme Court 56, paragraph 6.

28. Counsel for appellant Rajan Tiwary further submitted

that confession recorded by Rajan Tiwary cannot be relied upon as his

confession was recorded without observing the safeguard provided in


42

Sub-sections (2), (3) of Section 164 Cr.P.C. and Rule 7 of the Delhi

High Court Rules. Reliance in this connection is placed on the judgment

of the Supreme Court in the case of Rabindra Kumar Pal @ Dara

Singh Vs. Republic of India, AIR 2011 Supreme Court 1436,

paragraphs 23 to 33, Dhanajaya Reddy Vs. State of Karnataka,

(2001) 4 SCC 9, paragraphs 17 to 24. With reference to the judgment

of the Supreme Court in the case of Dhanajaya Reddy(supra) and

Rabindra Kumar Pal (supra) learned counsel for Rajan Tiwary

submitted that the first precaution which the Judicial Magistrate

recording 164 Cr.P.C. statement of the accused is required to take is to

prevent forcible extraction of confession by the prosecuting agency by

ensuring that the safeguards provided under Sub-Clauses (2), (3) and (4)

of Section 164 Cr.P.C. are observed not only in form but in substance.

Before proceeding to record the confessional statement a searching

enquiry must be made by the Magistrate from the accused as to the

custody from which he was produced and the treatment he had been

receiving in such custody to ensure that there is no scope for doubt of

any sort of extraneous influence, proceeding from a source interested in

the prosecution still lurking in the mind of an accused. The Magistrate

in particular should ask the accused as to why he wants to make a

statement which surely shall go against his interest in the trial, even if

he contrives subsequently to retract the confession. The accused willing


43

to record confession should be granted sufficient time for reflection.

During the time of reflection the accused should be completely out of

police influence. The Judicial Officer who is entrusted with the duty of

recording confession must apply his judicial mind to ascertain and

satisfy his conscience that the statement of the accused is not on account

of any extraneous influence on him. He should also be assured of

protection from any sort of apprehended torture or pressure from the

police, in case, he declines to make a confessional statement and be

given the assurance that even if he declined to make the confession he

shall not be remanded to police custody. Judicial confession should be

recorded in question and answer form, which is the manner indicated in

the criminal court rules. At the time of recording of the statement of the

accused no policeman or officer shall remain present in the

court/chamber where the statement is recorded. Having recorded the

confession signature of the officer and the accused be obtained on the

confession as per the requirement of Sub-Section-(5) of Section 281

referred to in Sub-Clause-(4) of Section 164 Cr.P.C. It is also submitted

that the failure of the Magistrate to put searching questions from which

he could ascertain the voluntary nature of the confession detracts so

materially from the evidentiary value of the confession of an accused

that it would not be safe to act upon the same. It is submitted that in the

instant case, Sri Saini, P.W. 59 before recording the confession of Rajan


44

Tiwary did not ascertain from him the custody from which he has been

produced and the treatment which he has been receiving in such

custody. He also did not inform Rajan Tiwary that in case he does not

wish to make the confession he shall not be remanded to the custody of

C.B.I. from which he has been produced. It is also submitted that after

recording of the confession of Rajan Tiwary his signature was not

obtained on pages 3 to 5 of the confession as is required under Sub-

Section (5) of Section 281 Cr.P.C. referred to in Sub-Section (4) of

Section 164 Cr.P.C. thereby the contents of pages 3 to 5 of the

confession, Ext. 35 cannot be relied upon by the prosecution in support

of the charges levelled against him. Having recorded the confession

Rajan Tiwary was again remanded to police (C.B.I.) custody, which is

clear violation of Rule 7 of the Delhi High Court Rules and for such

violation also confession is fit to be rejected.

29. Learned counsel for appellant Rajan Tiwary has further

submitted that the confession recorded by Rajan Tiwary, Ext. 35 is not a

confession at all. In case, this Court concludes that confession of Rajan

Tiwary is a confession the same having been retracted under undated

petition addressed to Chief Metropolitan Magistrate, Delhi and

forwarded by the office of the Superintendent, Central Jail No.5, Tihar,

New Delhi to ADJ cum Chief Metropolitan Magistrate, Tis Hazari

Court, Delhi under Memo No. 181 dated 1.3.1999, petition dated


45

30.3.1999, another petition addressed to Special Magistrate, C.B.I.,

Patna and forwarded by Superintendent, Beur Jail, Patna under Memo

No. 1016 dated 30.3.1999, petition dated 21.4.1999 filed through lawyer

giving reference of retraction dated 30.3.1999, the contents of the

confession, Ext. 35 is required to be corroborated with reference to the

evidence led by the prosecution.

30. Learned counsel for appellant Rajan Tiwary has further

submitted that telephone print outs, Ext. 3 series cannot be relied upon

as evidence in support of the prosecution case. Information given under

the print out has not been signed by a person occupying a responsible

official position in relation to the operation of the telephone exchange or

the management of the telephone company, as is required under Section

65-B of the Evidence Act. It is further submitted that the telephone print

out having been issued under the signature of Ramashray Rajak, Sub-

Divisional Officer, Phones, Katihar, P.W. 6 and K.K. Naiyar, Sub-

Divisional Officer, Vigilance, MTNL, P.W. 12 the same cannot be

relied upon as P.Ws. 6, 12 are neither the Incharge of telephone

exchange from which the print outs have been issued nor they have any

control over the management of the telephone company.

31. Learned counsel for appellant Rajan Tiwary has finally

submitted that C.B.I. investigation in the present case is wholly without

jurisdiction as after submission of the charge sheet dated 20/21.9.1998


46

by Purnia police in K. Hat P.S. Case No. 230/98 registered for the

offence of murder of Ajit Sarkar and others, C.J.M., Purnia had taken

cognizance under order dated 23.9.1998 for the offences referred to in

the charge sheet and summoned the accused sent up for trial, matter

being subjudice de novo investigation by the C.B.I. could not have been

made without the permission of C.J.M., Purnia. In support of the

aforesaid plea learned counsel for appellant Rajan Tiwary relied on the

judgment of the Supreme Court in the case of T.T. Antony Vs. State of

Kerala and others, AIR 2001 SC 2637, Rama Chaudhary Vs. State of

Bihar, AIR 2009 SC 2308 and Vinay Teyagi Vs. Irshad Ali @ Deepak

and others., 2013 CRI.L.J. 754.

Submission on behalf of appellant Anil Kr. Yadav

32. Learned counsel for appellant Anil Kumar Yadav has

adopted the submissions made on behalf of appellant Rajan Tiwary. He

has further submitted that Anil Yadav is not named as accused in the

fardbeyan/ F.I.R. of K. Hat P.S. Case No.230/98 Exts. 27, 31 which has

been recorded/ registered on the basis of the statement of P.W. 8. It is

further stated that Anil Yadav is also not named in F.I.R. of R.C. Case

No.12(S)/98 dated 12.10.1998. Counsel for Anil Yadav further

submitted that the informant, P.W. 8 did name Anil Yadav in his

statement recorded by I.O. of C.B.I., P.W. 61 as also in court that the

appellant Anil Yadav and others including the two appellants came to


47

the place of occurrence and kept the red bullet motorcycle in start

position to facilitate the escape of the assailants. Learned counsel has

further submitted that appellant Anil Yadav has neither motive nor mens

rea to kill Ajit Sarkar and others, as such, the evidence recorded by

P.W. 8 in court is fit to be rejected as such evidence was never recorded

by him before the I.O. of State police and statement to the contrary

made after four months of the occurrence cannot be relied upon. With

reference to the evidence of Ranu Kumar Singh, P.W. 19 learned

counsel submitted that P.W. 19 has stated in paragraph 2 of his cross-

examination that Kalyan Chand Sarkar, P.W. 8 came to the place of

occurrence after 45 minutes of his arrival and was loudly asking as to

who killed his brother. Witness in the same paragraph states that injured

Ramesh Oraon, P.W. 25 was sent to the hospital in Tempo contrary to

the claim of P.W. 8.

33. Learned counsel for appellant Anil Yadav further

submitted that Madhusudan Rishi P.W. 9 claimed that he saw the

occurrence from 100-150 yards and identified the appellant Anil Yadav

as the one who was driving red bullet motorcycle over which Harish

Chaudhary was pillion rider. He identified Anil Yadav as he was local

person and was always seen with Pappu Yadav during electioneering.

P.W. 9 also claimed to have identified Harish Chaudhary as he was

regular companion of Rajesh Ranjan @ Pappu Yadav though he is not


48

presently present in court. P.W. 9 also identified Rajan Tiwary who had

come to the place of occurrence on black motorcycle as he had seen him

several times during 1998 election. Anil Yadav had kept the motorcycle

in start position. Harish Chaudhary, Amar Yadav and Rajan Tiwary

resorted to firing. Rajan Tiwary confirmed the death of M.L.A. Sahab

by touching his body and thereafter Rajan Tiwary kick start the

motorcycle and took Amar Yadav as his pillion rider and went away.

Harish Choudhary became the pillion rider of Anil Yadav. Both the

motorcycles went towards Congress Office.

34. Learned counsel for Anil Yadav challenged the

evidence of Madhusudan Rishi, P.W. 9 on the ground that he for the

first time in court after five years of the occurrence stated that he being

a local person recognized appellant Anil Yadav as he had seen him

along with Rajesh Ranjan @ Pappu Yadav during eletion campaign.

Aforesaid deposition according to learned counsel is fit to be rejected in

view of the evidence of P.Ws. 56, 61 vide paragraphs 171, 201 of P.W.

56 and paragraph 106 of P.W. 61 that P.W. 9 never stated such fact

before either P.W. 56 or P.W. 61.


submitted that Lal Bahadur Oraon, P.W. 10 also identified Anil Yadav

as the one who came to the place of occurrence driving red bullet

motorcycle with Harish Choudhary sitting as pillion rider. He also


49

claimed that black motorcycle was driven by Amar Yadav and a tall man

with arm was his pillion rider. He also stated that he could identify Anil

Yadav as he had seen him along with Rajesh Ranjan @ Pappu Yadav

during election campaign. P.W. 10 further stated that local police arrived

at the place of occurrence after 15-20 minutes of the occurrence but he is

not aware as to how long the police remained at the place of occurrence.

P.W. 10 further confirmed that he did not infirm the local police about

the name of the assailants including the fact that he new the assailants

from the time of election. He further stated that he never gave any

application to the local police that he is an eye witness of the occurrence.

Learned counsel further pointed out towards the evidence of P.W. 10 in

paragraph 7 that he signed his statement given to the local police in

connection with post mortem of the deceased on 15.6.1998 without

reading the same. He further pointed out towards the evidence of P.W.

10 in the same paragraph that the witness had not informed the superior

officers of the Bihar Police in writing that local police had obtained his

signature on blank paper.

36. Learned counsel for appellant Anil Yadav challenged

the evidence of Lal Bahadur Oraon, P.W. 10 that he identified Anil

Yadav from before as he had seen him earlier during election campaign

of Rajesh Ranjan @ Pappu Yadav as has been claimed by P.W. 10 in

paragraph 1 of the examination in chief but such statement was not


50

made by the witness while recording his statement before the I.O. of

local police, P.W. 56, which is evident from paragraphs 173, 202 of the

evidence of P.W. 56 as P.W. 56 claimed in those paragraph that P.W. 10

neither named Anil Yadav in his statement nor claimed that he

identified him from before as he had seen him during election campaign

of Rajesh Ranjan @ Pappu Yadav. In this regard learned counsel for

appellant Anil Yadav also referred to the evidence of P.W. 61,

paragraph 107 where P.W. 61 accepted that P.W. 10 had not stated

before him that he had seen Anil Yadav and Amar Yadav moving along

with Rajesh Ranjan @ Pappu Yadav during his election campaign.

36(a). Learned counsel with reference to the evidence of

Ramesh Oraon, P.W. 25 paragraph 3 submitted that he remained at the

place of occurrence for about 20-25 minutes after the occurrence but

until he was taken from the place of occurrence in tempo P.Ws. 8, 9 and

10 did not come to the place of occurrence.

37. Learned counsel for Anil Yadav further submitted that

in the light of the evidence of independent witnesses P.Ws. 19, 25, 48

and 56 P.Ws. 8, 9 and 10 cannot be taken as reliable eye witnesses of

the occurrence. Learned counsel also submitted that from the evidence

of P.W. 56 paragraphs 200, 201 and 202 it would appear that the three

eye witnesses P.Ws. 8, 9 and 10 did not name Anil Yadav as the one

who on the date and time of occurrence had come to the place of


51

occurrence for executing the conspiracy and assisted the assailants in

making good their escape from the place of occurrence on motorcycle

by keeping the red bullet motorcycle in start position.

38. Learned counsel with reference to the evidence of

Domai Thakur and Shambhoo Prasad Mehta, P.Ws. 15 and 16

submitted that both the witnesses had seen Anil Yadav, Harish

Chaudhary, Amar Yadav and one unknown in Harda market over read

bullet and black motorcycle taking rounds of the market in the afternoon

prior to the occurrence. They also saw the two motorcycles following

the white Ambassador car of the deceased Ajit Sarkar from Harda

market.

39. Learned counsel for Anil Yadav also challenged the

evidence of Domai Thakur and Shambhoo Prasad Mehta, P.Ws. 15, 16

on the ground that they falsely stated in their examination in chief that

on the date of occurrence they had seen Anil Yadav taking rounds on

red bullet motorcycle with pillion Harish Chaudhary in Harda market

and thereafter followed the car of the deceased as they recognized both

Anil Yadav and Harish Chaudhary from before i.e. time of election

campaign of Rajesh Ranjan @ Pappu Yadav. According to learned

counsel aforesaid deposition of P.Ws. 15, 16 has been made for the first

time in court after more than five years of the occurrence, which is

evident from paragraphs 109, 289 of P.W. 61 who has categorically


52

stated that such statement was never made before him while he recorded

the statement of P.Ws. 15, 16 during investigation.

40. Learned counsel with reference to paragraph 173 of the

evidence of A.K. Jha, P.W. 56, I.O. of K. Hat P.S. Case No.230/98

submitted that witness Lal Bahadur Oraon, P.W. 10 has not stated before

him (P.W. 56) that Rajesh Ranjan @ Pappu Yadav calls Harish

Chaudhary as Mama. P.W. 10 further did not state before P.W. 56 that

during election he had seen Anil Yadav along with Rajesh Ranjan @

Pappu Yadav. P.W. 10 has also not stated before P.W. 56 that he had

seen Amar Yadav together with Rajesh Ranjan @ Pappu Yadav during

election campaign. P.W. 10 had also not stated before P.W. 56 that

Rajesh Ranjan @ Pappu Yadav during election speech had stated that in

the event he wins the election he shall assault Ajit Sarkar by entering his

house and in case, he loses the election he will assault Ajit Sarkar on the

road. With reference to paragraph 174 of the evidence of P.W. 56

learned counsel submitted that during election campaign while

delivering street corner speech Jawahar Yadav and Abdul Sattar had

stated in village Rani Patra that in case Rajesh Ranjan @ Pappu Yadav

will win the election the M.L.A. shall be assaulted in his house and in

case, he loses the election then on road. With reference to the evidence

of P.W. 56 in paragraph 200, 201, 202 learned counsel for appellant Anil

Yadav submitted that neither P.W. 8 nor P.W. 9 nor P.W. 10 had named


53

Anil Yadav in their statement given to P.W. 56 as the one who was

involved in the murder of Ajit Sarkar and two others.

41. Learned counsel for Anil Yadav with reference to the

evidence of P.W. 61 paragraphs 227, 254 to 268, 271 to 275, 280 to 290

submitted that the prosecution case put forth by P.Ws. 8 to 10, 15 and

16 is fit to be rejected as the version put forward by those witnesses

implicating Anil Yadav was not stated by those witnesses before the

I.O., P.W.61. P.Ws. 9, 10 named Anil Yadav for the first time before

P.W. 61 vide paragraphs 256, 258. Aforesaid version has been put

forward by the witnesses for the first time in court and to deliberately

conceal the innocence of appellant Anil Yadav his statement recorded

under Section 164 Cr.P.C. has not been brought on record. It is further

submitted on behalf of Anil Yadav that red bullet motorcycle was not

seized from his house as he never owned/possessed any motorcycle.

According to learned counsel the oral evidence of the prosecution that

Anil Yadav possessed red bullet motorcycle is hit by Section 59 of the

Evidence Act in absence of any documentary proof showing his

ownership of the red bullet motorcycle, which was never put on T.I.

Parade for identification. Reference in this connection is also made to

the evidence of D.Ws. 5 and 11. Learned counsel for Anil Yadav

submitted that story of recovery of red bullet motorcycle is not true as

the said motorcycle was neither produced before the C.J.M., Purnea nor


54

before the trial court and recovery memo, Exts. 40, 43 was admitted in

evidence with objection which is a weak evidence and hit by Sections

24, 25, 26 of the Evidence Act.

42. Learned counsel with reference to paragraphs 227, 228

of the evidence of N.H. Kharaiyat, P.W. 61 (I.O.) submitted that P.W. 9

had not stated before him that Anil Yadav kept the motorcycle in start

position and Amar Yadav, Harish Chaudhary, Rajan Tiwary resorted to

firing. He also did not state before him that Rajan Tiwary having

confirmed the death of Ajit Sarkar by touching his body kick start the

motorcycle over which Amar Yadav sat as pillion rider, Harish

Chaudhary became the pillion rider of Anil Yadav and the two

motorcycle escaped through Krishna Ashram road over which Congress

office is also situated.


submitted with reference to paragraphs 27, 283 of the evidence of P.W.

61 that confessional statement of Anil Yadav was also recorded on

26.2.1999 under Section 164 Cr.P.C. by Mrs. Santosh Sneh Mann,

Metropolitan Magistrate, Delhi but the said statement has not been cited

as evidence in the charge sheet.

44. Learned counsel further submitted that red bullet

motorcycle said to have been used in the crime and recovered from the

verandah of the house of Anil Yadav on 18.2.1999 vide two disclosure


55

memo, both dated 18.2.1999, Exts. 43, 43/1 and pointing out cum

recovery and seizure memo dated 18.2.1999, Ext. 40 admitted in

evidence with objection. The motorcycle having not been produced in

court and the two independent witnesses of the disclosure memo,

namely, Upendra Shukla and P.K. Verma officer of the State Bank of

India, P.Ws. 23, 24 having stated in their evidence that it is incorrect to

say that disclosure memo was prepared in their presence and they signed

the same on 18.2.1999 the memo cannot be relied upon. The pointing

out cum recovery and seizure memo Ext. 40 admitted in evidence with

objection can also not be relied upon as the two independent witnesses

to the said pointing out cum recovery and seizure memo, namely, Umesh

Mishra and Shiv Shankar Prasad, Telecom Technical Assistant and

Junior Telecom Officer in the office of S.D.O. Phones and Telecom

District Manager, Katihar having not been examined there is no

authenticity of the contents of the said pointing out memo. In this

connection, reliance is also placed on the evidence of P.W. 61 in

paragraph 261 onwards wherefrom it will appear that Anil Yadav was

arrested on 17.2.1999 after he was called from his village home through

one Prabhakar Yadav his distant relative at circuit house by Inspector

A.K. Gupta, though prior to his arrest his house was searched but

nothing incriminating was found. In support of the aforesaid contention

learned counsel for appellant Anil Yadav relied on the judgment of this


56

Court in the case of State of Bihar Vs. Surendra Manjhi and Anr.,

2010 CRI. L. J. 292, Vijay Singh Vs. State of M.P., 2005 CRI. L. J.

299.

Submission on behalf of appellant Rajesh Ranjan

45. Learned counsel for appellant Rajesh Ranjan @ Pappu

Yadav besides adopting the submission made on behalf of Rajan Tiwary

submitted that C.B.I. ought to have filed its further report in K.Hat P.S.

Case No.230/98 in the court of C.J.M., Purnea as per sub-section (1) of

Section 4, 26 and sub-seciton (8) of Section 173 of Cr.P.C. but in any

case after receipt of the records of K. Hat P.S. Case No. 230/98 in the

C.B.I. Court on 7.1.2002 the C.B.I. Court ought to have tried the

accused sent up for trial by Purnea police under charge sheet dated

20/21.9.1998 together with the accused sent up for trial by the C.B.I.

under charge sheet no. 01, supplementary charge sheet no. 04 dated

10.5.1999/ 19.8.1999 in accordance with law. The C.B.I. did favour the

accused persons charge-sheeted by Purnea police as it recommended for

their discharge in the charge sheet dated 10.5.1999 as also filed separate

application dated 15.9.1999 for their discharge in the court of Special

Judicial Magistrate, C.B.I., Patna on the basis of which Special Judicial

Magistrate, C.B.I., Patna passed order dated 15.9.1999 discharging the

accused sent up for trail by Purnea police in connection with K. Hat P.S.

Case No.230/98, which is wholly illegal and contrary to the provisions


57

contained in Section 186 Cr.P.C. According to learned counsel the

Additional Sessions Judge XI cum C.B.I. Court, Patna ought to have

conducted the trial of the accused persons sent up for trial by Purnea

police under charge sheet dated 20.9.1998 together with the accused sent

up for trial by the C.B.I. under charge sheet/ supplementary charge sheet

dated 10.5.1999/ 19.8.1999 after receipt of the records of K. Hat P.S.

Case No. 230/98 by the C.B.I. Court on 7.1.2002 in the light of Section

186 Cr.P.C. Additional Sessions Judge XI cum C.B.I. Court, Patna

having not tried the accused sent up for trial by Purnea police in K. Hat

P.S. Case No.230/98 under charge sheet dated 20/21.9.1998 together

with the accused sent up for trial by the C.B.I. under charge sheet/

supplementary charge sheet dated 10.5.1999/ 19.8.1999 the trial

conducted by the Additional Sessions Judge XI cum C.B.I. Court, Patna

of the accused sent up for trial under charge sheet/ supplementary charge

sheet submitted by the C.B.I. is nothing but abuse of the process of the

court at the hands of C.B.I. and serious failure of justice has been caused

by the prosecution to the appellants. The trial of the appellants is neither

free nor fair. It is submitted that no man shall be prejudiced by the act of

court or prosecution, which is well settled principle of law. According to

learned counsel in the instant case C.B.I. and its prosecutor willfully

favoured the accused persons sent up for trial by Purnea police by

withholding the statement of prosecution witnesses recorded by P.W. 56


58

and thereby caused serious prejudice to the case of the appellants.

46. Reliance in this connection has been placed over the

judgment of the Suprerme Court in the case of Association for

Protection of Public Rights and Interest through its Secretary Vs.

State of Bihar and others, 1990 CRI. L.J. 1928, paragraphs 35, 36,

Balbir Vs. State of Haryana and Another, (2000) 1 SCC 285, T.T.

Anthony Vs. State of Kerala and others, AIR 2001 SC 2637, Vinay

Tiyagi Vs. Irshad Ali @ Deepak and others, 2013 CRI. L.J. 754.

47. Learned counsel for Rajesh Ranjan @ Pappu Yadav

further submitted that accused in a criminal case has fundamental and

legal right to receive an honest, impartial and untainted investigation and

also free and fair trial as per the settled, just, fair and reasonable

procedure in law in the light of the principles of natural justice as

enshrined under Articles 14, 20, 21 and 22 of the Constitution as also by

reading the principles enshrined in those articles in the applicable

statutory laws i.e. Cr.P.C. and the Evidence Act. It is submitted that in

the instant case appellant Rajesh Ranjan @ Pappu Yadav neither

received honest, impartial untainted and fair investigation nor received

free and fair trial as per the established, fair, just and reasonable

procedure in accordance with judicially settled principles of law.

According to learned counsel provisions of Sections 4(1), 91, 149, 151,

154, 161, 162, 164, 169, 172, 173, 173(2), 173(8), 223, 281, 299, 310


59

and 317 of the Cr.P.C. were not correctly applied while conducting the

investigation and subjecting the appellants to trial. He also referred to

the provisions of Sections 3, 4, 8, 10, 17, 22, 24, 25, 26, 27, 28, 30, 31,

54, 59, 60, 61, 62, 63, 64, 65, 65-A, 65-B, 66, 101 to 104, 106, 114, 115,

136, 137, 145, 146, 154, 155, 156 and 157 of the Evidence Act and

submitted that in the instant trial inadmissible and tainted evidence was

received and considered by the trial court violating the aforesaid

provisions.

48. To buttress the aforesaid submission learned counsel for

Rajesh Ranjan @ Pappu Yadav submitted that prosecution placed

reliance on the confessional statement of Rajan Tiwary, Ext. 35 to

convict him of the offence of hatching conspiracy with Rajan Tiwary

and to kill Ajit Sarkar is violative of the constitutional protection

allowed to him in part III of the Constitution vide Sub-Article (3) of

Articles 20, 21 and 22 of the Constitution. He further submitted that

confessional statement recorded under Section 164 Cr.P.C. can only be

used against the person who has recorded his confessional statement. In

this connection, learned counsel placing reliance on the 69th

report of the

Law Commission of India submitted that the confession should not be

relied upon against such other person(s) named in the confession as the

other person(s) named in the confession had no opportunity to cross-

examine the person who made the confession. In this connection,


60

learned counsel referred to following paragraph from the Government of

the United States by Munro(Edn. 5) Page 53 quoted by the Supreme

Court in the case of A. K. Gopalan Vs. State of Madras, AIR 1950

Supreme Court 27.

“The architects of 1787 built only the basement. Their

descendents have kept adding walls and windows, wings

and gables, pillars and porches to make a rambling

structure which is not yet finished. Or, to change the

metaphor, it has a fabric which, to use the words of

James Russell Lowell, is still being ‗woven on the

roaring loom of time.‘ That is what the framers of the

original Constitution intended it to be. Never was it in

their mind to work out a final scheme for the

government of the country and stereotype it for all time.

They sought merely to provide a starting point.‖

49. Learned counsel further referred to the following

observation of the Supreme Court in the case of Rustum Cavasjee

Cooper Vs Union of India, AIR 1970 Supreme Court 564 quoted with

approval by the Supreme Court in the case of Maneka Gandhi Vs.

Union of India, AIR 1978 Supreme Court 597.

―---------- it is not the object of the authority making the

law impairing the right of a citizen nor the form of action


61

that determines the protection he can claim; it is the

effect of the law and of the action upon the right which

attract the jurisdiction of the Court to grant relief. If this

be the true view, and we think it is, in determining the

impact of State action upon constitutional guarantees

which are fundamental, it follows that the extent of

protection against impairment of a fundamental right is

determined not by the object of the Legislature nor by the

form of the action, but by its direct operation upon the

individual‘s rights.‖

―We are of the view that the theory that the object and

form of the State acton determine the extent of

protection which the aggrieved party may claim is not

consistent with the constitutional scheme …….‖

and submitted that in the case of Maneka Gandhi(supra)

Supreme Court has given expanded meaning to the expression

deprivation of life, procedure established by law to mean that the

procedure established by law for deprivation of life and liberty must not

only be established by law but the procedure meant for deprivation of

life and liberty must be just, fair and reasonable. It is not enough that

there is in force a law which is formally enacted by a competent

Legislature, which authorizes deprivation of life and liberty. The law


62

must be such that it is in conformity with justice, fairness and

reasonableness. Confession of Rajan Tiwary if used against appellant

Rajesh Ranjan @ Pappu Yadav with reference to Section 30 of the

Evidence Act may amount to deprive the appellant of his life and liberty

by resorting to law and procedure which is neither just nor fair nor

reasonable as the contents of the confession is being used against the

appellant without giving him opportunity to cross-examine Rajan

Tiwary. In this connection, learned counsel pointed out that cross-

examination is the most powerful engine for the discovery of truth says

Loyd Paul Stryker in his book ―The Effect of Law‖. Learned counsel

with reference to the memorandum recorded at the foot of the

confessional statement in the light of Sub-Section (4) of Section 164 Cr.

P.C. submitted that while recording the confessional statement the

Magistrate forewarned the maker of the confessional statement (in the

instant case Rajan Tiwary) that the statement given by him may be used

as evidence against him, as such, it will be wholly unfair to use such

statement against any other person including the appellant Rajesh

Ranjan @ Pappu Yadav. In support of the aforesaid submission learned

counsel also placed reliance on the judgment of the Supreme Court in

the case of Unni Krishnan, J.P. and others Vs. State of Andhra

Pradesh and others (1993) 1 SCC 645, paragraphs 19, 142, 156, 158,

159, 161, 165, State of West Bengal and others Vs. Committee for


63

Protection of Democratic Rights, West Bengal and Others, (2010) 3

Supreme Court Cases 571, paragraphs 47 to 50, 67 and 68, Zahira

Habibulla H. Sheikh and another Vs. State of Gujarat and others,

(2004) 4 Supreme Court Cases 158, paragraphs 30 to 56, 61 to 64

and Rafiq Ahmad @ Rafi Vs. State of Uttar Pradesh, (2011) 8

Supreme Court Cases 300, paragraphs 35 to 38.

50. Confession of Rajan Tiwary is further bad for the failure of

the prosecution to provide him the legal aid before recording his

confession. According to learned counsel aforesaid view has been taken

by the Division Bench of the Guahati High Court in the case of Gendra

Brahma and others Vs. The State of Assam, 1981 CRI. L. J 430 and

Kuthu Goala Vs. The State of Assam, 1981 CRI. L. J. 424. In this

connection he further submitted with referene to paragraphs 6, 7 fo the

judgment of the Supreme Court in the case of Shivappa Vs. State of

Karnataka (1995) 2 SCC 76 that Magistrate recording 164 Cr.P.C.

statement is required to ascertain the voluntary nature of confession. The

enquiry about the voluntary nature of the confession is the most

significant and important part of the duty of the Magistrate. According

to learned counsel in the instant case there is no enquiry to ascertain the

voluntary nature of confession. Merely recording that Rajan Tiwary

wants to confess is not enquiry. Learned Magistrate recording the

statement has not even asked Rajan Tiwary if C.B.I. treated him well or


64

under what circumstances he was arrested. No lawyer was assigned to

him nor was he asked if he wanted to meet any relation or friend.

According to learned counsel in order to make the confession admissible

as made under Section 164 Cr.P.C. by an accused against a co-accused

for applying the test of voluntariness for the purpose of Section 30 of the

Evidence Act, this Court needs to test at the altar of Articles 14, 20, 21

and 22 of the Constitution of India and before testing the same it must

read and satisfy the requirements as a rule of law than a rule of prudence

under Section 164(2) Cr.P.C. to be explained to the accused by the

Magistrate before recording the confession.

i. The maker of the confession should be specifically

warned before hand by the recording Magistrate the effect

of making the confession that by making such a confession,

both the maker and co-accused may be held guilty / liable

to get applicable punishments i.e. in the nature of death, life

imprisonment or lesser period with fine.

ii. The maker should also be specifically warned that at

later stage his retraction in any manner may or may not be

believed and he may be held to be bound by it.

iii.The maker be also specifically warned that the co-

accused shall have no opportunity to cross examine him and

the co-accused can be equally punished on the basis of his


65

confession and he will have no other chance to meet his

confession at the stage of trial before the trial court.

iv.The certified fair copy of the confession be provided to

the maker of the confession immediately after recording the

confession U / s 164 Cr. P.C.

v.The fair certified copy of confession of the maker be also

provided to the co-accused at the earliest.

vi.Since the confession is hit by Section 163 Cr. P.C. and S-

24 of the Evidence Act, the detailed / maximum search

enquiry be pointed out to accused and every effect of

involuntary and Police Impact be taken care of.

vii.After administering the aforesaid warning the Magistrate

must give at least 24 hours time or more by ensuring free

from police custody and only then proceed to record the

confession and then the same may be allowed to be tested

in the trial court and not otherwise.

51. Learned counsel further submitted without prejudiced to

his aforesaid submission that it would be evidently seen that there is no

sufficient and acceptable corroboration to the confession of Rajan

Tiwary. He further submits that Section 164 precedes Section 30 of the

Evidence Act which came into force in 1872 but Section 164 Cr.P.C.

makes no reference to or envisages a confession of co-accused involving


66

other co-accused, as such according to learned counsel Section 164

Cr.P.C. statement should not be applicable to Section 30 of the Evidence

Act nor Section 10 of the Evidence Act can be so applied readily

disregarding the constitutional protection of fair procedure under

Articles 14, 20, 21 and 22 of the Constitution. Learned counsel also

submitted that the Supreme Court in the case of S. Arul Raja Vs. State

of Tamilnadu, (2010) 8 SCC 233, paragraph 56 acquitted the accused

charged with offence of conspiracy after holding that the confession of

A-1 is insufficient to implicate the appellant of the conspiracy as the

same is hit by Section 10 of the Evidence Act. Section 10 refers to the

statement of a fellow conspirator that pertains common intention behind

the act and such a statement can be used against the other conspirators.

In the present case, prosecution has failed to substantiate the allegation

of conspiracy against Rajesh Ranjan @ Pappu Yadav and therefore he

could not be under any circumstances be called a conspirator so as to

attract the provisions of Section 10 of the Evidence Act. The post arrest

statement of Rajan Tiwary made on 22.2.1999 after more than six

months from the date of incident is hit by Section 10 of the Evidence

Act as laid down by the Supreme Court in the case of S. Arul

Raja(supra).

52. It is further submitted that C.B.I. prosecution has failed to

produce any cogent, trustworthy, conclusive and convincing evidence on


67

the point of knowledge of object of conspiracy, unlawful agreement at

the behest of the three appellants in trial in the light of the law laid down

by the Supreme Court in the case of State through Superintendent of

Police, CBI/SIT Vs. Nalini and others, (1999) 5 SCC 253,

paragraphs 581 to 583 with regard to the provisions of Section 10 and

30 of the Evidence Act. With reference to the said judgment it is pointed

out that a charge of conspiracy may prejudice the accused because it has

forced the accused persons into a joint trial and the court may consider

the entire mass of evidence against every accused. Prosecution has to

produce evidence not only to show that each of the accused has

knowledge of object of conspiracy but also of the agreement. In the

charge of conspiracy court has to guard itself against the danger of

unfairness to the accused. Introduction of evidence against some may

result in the conviction of all which is to be avoided. By means of

evidence in conspiracy, which is otherwise inadmissible in the trial of

any other substantive offence prosecution tries to implicate the accused

not only in the conspiracy itself but also in the substantive crime of the

alleged conspirators. There is always difficulty in tracing the precise

contribution of each member of the conspiracy but then there has to be

cogent and convincing evidence against each one of the accused charged

with the offence of conspiracy. It is unlawful agreement and not its

accomplishment, which is the gist or essence of the crime of conspiracy.


68

Offence of criminal conspiracy is complete even though there is no

agreement as to the means by which the purpose is to be accomplished.

It is the unlawful agreement which is the gravamen of the crime of

conspiracy. The unlawful agreement which amounts to a conspiracy

need not be formal or express, but may be inherent and inferred from the

circumstances, especially declarations, acts and conduct of the

conspirators. The agreement need not be entered into by all the parties to

it at the same time but may be reached by successive actions evidencing

their joining of the conspiracy. It is said that a criminal conspiracy is a

partnership in crime and that there is in each conspiracy a joint or mutual

agency for the prosecution by a common plan. Thus if two or more

persons entered into a conspiracy any act done by any of them pursuant

to the agreement is in contemplation of law, the act of each of them and

they are jointly responsible therefor. This means that everything said,

written or done by any of the conspirators in execution or furtherance of

the common purpose is deemed to have been said, done or written by

each of them. This joint responsibility extends not only to what is done

by any of the conspirators pursuant to the original agreement but also to

collateral acts incidental to and growing out of the original purpose. A

conspirator is not responsible, however, for acts done by a co-

conspirator after termination of the conspiracy. The joinder of a

conspiracy by anew member does not create a new conspiracy nor does


69

it change the status of the other conspirators, and the mere fact that

conspirators individually or in group perform different tasks to a

common end does not split up a conspiracy into several different

conspiracies. A man may join a conspiracy by word or by deed.

However, criminal responsibility for a conspiracy requires more than a

merely passive attitude towards an existing conspiracy. One who

commits an overt act with knowledge of the conspiracy is guilty. One

who tacitly consents to the object of a conspiracy and goes along with

other conspirators actually standing by while the others put the

conspiracy into effect, is guilty though he intends to take no active part

in the crime. In view of the law laid down in the case of Nalini(supra)

learned counsel submitted that the poor qualitity of evidence as adduced

during trial do not prove charge of conspiracy conclusively beyond

reasonable doubt against the appellant as the evidence on the point of

unlawful agreement required under Section 120A I.P.C. is not available

and Rajesh Ranjan @ Pappu Yadav is entitled to acquittal by granting

him benefit of doubt. It is further submitted that perusal of Ext. 35 and

evidence of P.W. 59 in paragraph 22 would indicate that page nos. 3, 4,

5 and 6 of Ext. 35 is in continuation which is statement of Rajan Tiwary

recorded by P.W. 59. On page nos. 3, 4 and 5 witness states that he had

taken the signature of Rajan Tiwary but perusal of the original of Ext. 35

does not indicate any signature of Rajan Tiwary on page nos. 3, 4 and 5


70

as stated by P.W. 59. P.W. 59 further deposed in court vide paragraph 95

that C.B.I. officials never approached him for making fair copy of

statement of Rajan Tiwary for the purpose of supply to the accused

persons. In this connection, learned counsel next submitted that Ext. 35

was produced in the trial court on 17.11.2005 through C.B.I. prosecutor

but there is no explanation by the prosecution when, where and how

prosecution received the so called confession Ext. 35 from the

Magistrate and as there is no evidence of receipt of Ext. 35 it creates a

serious doubt about the prosecution story. It is submitted that such

objection was made during trial but was ignored by the trial court.

53. Learned counsel further submitted that both the

Investigating Officer, P.Ws. 56 and 61 averred in their evidence that

they prepared site plan or map of the so called place of occurrence but

both the copies were not exhibited by the prosecution for the reasons

best known to them. It is submitted that in the absence of the site plan as

per the relevant law adverse inference has to be drawn against the

prosecution and the benefit of doubt has to be given to the accused.

Reliance in this connection is placed on the judgment of the Madhya

Pradesh High in the case of Vijay Singh Vs. State of M. P., 2005 CRI.

L. J. 299, paragraph 21.

54. Learned counsel for Rajesh Ranjan @ Pappu Yadav further

submitted that evidence of prosecution witnesses are not free from


71

reasonable doubt, retracted confession by Rajan Tiwary is found to be

tainted and not supported by independent corroboration appellant Rajesh

Ranjan @ Pappu Yadav is entitled for acquittal by granting him benefit

of doubt. Learned counsel also placed reliance on the judgment of the

Supreme Court in the case of Sarwan Singh Rattan Singh Vs. State of

Punjab, AIR 1957 Supreme Court 637.


challenged the evidence of criminal antecedent of Rajesh Ranjan @

Pappu Yadav with reference to the contents of Memo No.4204 dated

31.10.1998 on the ground that the author of the said letter i.e. the then

Superintendent of Police, Purnea Sri R.S. Bhatti did not examine himself

to support the contents of the letter dated 31.10.1998. In this connection,

he referred to the evidence of P.W. 18 who having taken dictation from

Sri Bhatti had typed the letter but stated in paragraph 4 of his evidence

that he had no personal knowledge about the contents of the letter.

Reliance in this connection is placed over the judgment in the case of

Kamal Kanto Das Vs. State, AIR 1959 Calcutta 342(DB) and

Babulal Bajpai Vs. The State AIR 1959 CRI. L. J. 693.

56. Learned counsel further submitted that the evidence of P.W.

18 is in the nature of hearsay which cannot be taken into account to

decide the accusation made against Rajesh Ranjan @ Pappu Yadav.

According to learned counsel the so called criminal antecedent of Rajesh


72

Ranjan @ Pappu Yadav has vitiated the trial because the trial court has

allowed itself to be prejudiced by the so called criminal antecedent of

Rajesh Ranjan @ Pappu Yadav. Reliance in this connection is placed

over the judgment of the Supreme Court in the case of Kalyan Kumar

Gogoi Vs. Ashutosh Agnihotri and another, (2011) 2 SCC 532,

paragraphs 31, 33, 34, 35, 37 and 38. In this connection, learned

counsel also pointed out that the so called criminal antecedent is

irrelevant and inadmissible in view of Section 54 of the Evidence Act.

57. Learned counsel further challenged the evidence of P.Ws. 7,

20 on the ground that P.W. 7 in paragraph 1 of his evidence stated that

on 8.6.1998 he had gone to Purnea Bar Library to meet a friend

Advocate and there he learnt from an old acquaintance Subodh Yadav,

P.W. 20 who gave him a written chit in which it was written that Rajesh

Ranjan @ Pappu Yadav had called a man named Rajan Tiwary in

Purnea who is about to kill M.L.A. Dilip Yadav and C.P.M. M.L.A. Ajit

Sarkar. Similar statement was also given by P.W. 20 in paragraph 1 of

his evidence. It is submitted that if the two statements are true P.Ws. 7,

20 were required under law to lodge F.I.R. under Section 154 Cr.P.C.

against Rajesh Ranjan @ Pappu Yadav and Rajan Tiwary. Having not

done so strong inference of falsehood of the said statement and chit

dated 8.6.1998 has to be drawn and consequential benefit be given to the

accused and suitable stricture passed as per law against P.W. 7 and also


73

action if any as per law be ordered against P.W. 7. According to learned

counsel the chit is a document within the meaning of Section 3 of the

Evidence Act. The said chit therefore, could have been proved to be

admissible in evidence only in accordance with Sections 61 to 65. The

evidence of said chit cannot be received/given by oral evidence under

Section 59 and 60 of the Evidence Act as has been done by P.Ws. 7, 20

which is hit by Rule of hearsay evidence and is liable to be inadmissible

in evidence. Reference and reliance in this connection is placed over the

judgment of the Supreme Court in the case of Kalyan Kumar Gogoi Vs.

Ashutosh Agnihotri (2011) 2 SCC 532 as also to the earlier judgment of

the Supreme Court in the case of Ram Das Vs. State of Maharashtra,

AIR 1977 SC 1164, paragraph 7, which is quoted hereunder for ready

reference :-

―When a prosecution witness deposes that he had received a

letter containing the alleged threat of murder given to the

deceased and that letter is in possession of the Police but the

prosecution did not produce the letter in Court in spite of the

direction of the Court to produce it the only reasonable

inference that can be drawn would be that the letter did not

contain such a threat and the letter if produced would have

falsified the witness to that extent.‖


challenged the evidence of P.Ws. 7, 20 in paragraph 1 where they have

deposed that about 6-7 days prior to the murder they heard that Ajit


74

Sarkar and one more person would be killed. P.Ws. 7, 20 do not

mentioned the name of the person who gave this information, thus

evidence of P.Ws. 7, 20 is hearsay and cannot be relied upon. The

statement of P.W. 7 that he informed S.P., Purnea about the murder is

also hearsay evidence as S.P., Purnea has not been examined. If evidene

of P.W. 7 had any elementary truth, C.B.I. would have definitely

examined the then S.P. Learned counsel submitted that non-examinaton

of the then S.P., Purnea even after reference through P.W. 7 either by the

C.B.I. or by the court under Section 311 Cr.P.C. makes the evidence of

P.W. 7, 20 concocted, false and malicious, which is liable to be excluded

and adverse inference be drawn against the prosecution.

59. Learned counsel with reference to paragraph 57 of the

evidence of N.S. Kharayat, P.W. 61 submitted that Rajan Tiwary was

interrogated during the period between 13.2.1999 till 22.2.1999 by four

officers including P.W. 61 with reference to separate questions put by

the four officers to Rajan Tiwary separately which was not filed in the

court but disclosure statement made by him was filed in the court. In

disclosure statement Rajan Tiwary has stated about commission of

crime. In the said paragraph P.W. 61 further stated that disclosure

statement is as good as confessional statement. According to learned

counsel the aforesaid deposition of P.W. 61 is wholly contrary to law

and violative of Section 26 of the Evidence Act and cannot be relied


75

upon to convict appellant Rajesh Ranjan @ Pappu Yadav.


submitted that on 19.8.2006 during trial Rajesh Ranjan @ Pappu Yadav

made objection against Ext. 39, so called photograph, material Ext. VII

and Ext. 40 but due to failure of video conference facility the trial court

could not pass any order on the objecton as made by Rajesh Ranjan @

Pappu Yadav which caused serious incurable prejudice to him even then

the trial court refused to permit Rajesh Ranjan @ Pappu Yadav to peruse

the deposition of the witnesses before recording his statement under

Setion 313 Cr.P.C. The trial court has failed to testify the genuiness of

the so called photograph, material Ext. VII which was not even put to

the appellant during his 313 Cr.P.C. statement when so recorded by the

trial court on 16.11.2006. The prosecution filed supplementary charge

sheet against Rajesh Ranjan @ Pappu Yadav and in the said charge sheet

no.4/99 he had only been provided with so called black and white Xerox

copy of the photo (later material Ext. VII) and other documents. The

alleged photo may also have been filed in the 10.5.1999 charge sheet

submitted by P.W. 61 but the appellant had no opportunity on any

occasion to see the so called photograph. The objection made only on

the basis of dim, black and white Xerox copy of photograph so provided

to the appellant under Section 207 Cr.P.C. This exhibit in absence of its

original Ext. M/VII is like the chit dated 8.6.1998 as referred by P.W. 7


76

and is inadmissible in law as it is neither a primary nor a secondary

evidence in law. Reliance in this connection on the judgment of the

Supreme Court in the case of R.V.F. Venkatachala Gounder Vs.

Arulmigu Viswesaraswami and V.P. Temple, JT 2005(11) SC 574 and

The Roman Catholic Mission Vs. The State of Madras and Anr., AIR

1966 SC 1457.

61. Learned counsel for Rajesh Ranjan @ Pappu Yadav with

reference to the judgment of the Supreme Court in the case of Arun

Balakrishnan Iyer and another Vs. M/s. Soni Hospital and others,

AIR 2003 Madras 389 submitted that the documents being Photostat

copies could not be admitted in evidence without producing the original.

The trial court has not even actually put the so called photo to the

appellant during 313 statement, hence the material object, Ext. M/VII is

liable to be excluded from the evidence.

62. Learned counsel for the appellant Rajesh Ranjan @ Pappu

Yadav challenged the seizure of two steel core portions recovered from

the car of the deceased bearing Registration No.BHK 1426 on 3.3.1999

vide seizure memo, Ext. 10 and certified to be steel core portions of

bullets fired from assault rifle under report dated 1.4.1999, Ext. 9/2 on

the ground that Madhvi Sarkar wife of deceased Ajit Sarkar filed

petition dated 19.7.1998 before C.J.M., Purnea for return of the Car

which was considered by learned C.J.M., Purnea on 25.7.1998 and after


77

due verification the said car was handed over to Madhvi Sarkar and at

her instance the car was removed from the spot to Nitu da‘s garage for

repairs where its seat, mat were removed and kept in a cornor of the

garage. No bullet, bullet pieces could be found in the car seats. It was for

the prosecution to have examined Madhvi Sarkar to explain the recovery

of the two steel core portions from the seat of the car made on 3.3.1999.

It is wholly improper for the prosecution to connect the appellants with

the alleged recovery made from the seat of the car on 3.3.1999 when

admittedly car was in the garage for repairs and there is neither any

known effort nor any explanation from the prosecution as to why the

weapon was not recovered from any of the accused persons.


submitted that while recording his statement under Section 313 Cr.P.C.

there has been non-compliance of the provision as Rajesh Ranjan @

Pappu Yadav was not asked to explain the circumstances appearing

against him in the prosecution evidence. He was also not questioned

generally on the case which was put up against him by the prosecution

witnesses. In this connection, it is pointed out that the photograph of

Rajan Tiwary and Rajesh Ranjan @ Pappu Yadav, material Ext. VII and

confession of Rajan Tiwary made before Delhi Court, Ext. 35 ought to

have been physically shown to Rajesh Ranjan @ Pappu Yadav during

his examination. In this connection, it is submitted that the records of


78

313 Cr.P.C. examination do not show that Ext. 35 and the so called

photograph, material Ext. VII was ever shown physically to Rajesh

Ranjan @ Pappu Yadav and his explanation taken, the wording of

questions put by the court on this point and sequence shows beyond

doubt that confession, Ext. 35 or photograph were not physically shown

to Rajesh Ranjan @ Pappu Yadav and others which fact is also

confirmed by the lawyer who appeared on behalf of appellant in the trial

court. In absence of physical showing and explanation taken the

photograph and confession cannot be used against any of the appellant.

In case of Ext. 35 it was particularly necessary for the prosecutor to have

shown the appellant Rajan Tiwary his alleged signature and asked

whether the signature was his. Additionally Rajan Tiwary shoud have

been asked to explain whether he accepts or not the evidence of

Metropolitan Magistrate Sri Saini, P.W. 59 that Sri Saini recorded his

statement Ext. 35 in his own handwriting. The handwriting of Sri Saini,

P.W. 59 as well as Rajan Tiwary ought to have been shown to Rajan

Tiwary. The examination has to proceed separately and topic wise about

each material circumstance in terms of paragraph 8 in the case of Ajmer

Singh Vs The State of Punjab (AIR 1953 SC 76), paragraph 14 of

Lallu Manjhi and another Vs. State of Jharkhand (AIR 2003 SC

854) as also paragraph 1 in Machander Vs. State of Hyderabad

(AIR 1955 SC 792). In this connection, learned counsel further


79

submitted that any violation of fair procedure is per se violative of

Article 21 of the Constitution which goes to the root and vitiates the trial

and cannot be redeemed by invoking Section 463, 465 Cr.P.C.

64. Learned counsel with reference to the judgment in the case

of Machander(supra) submitted that Supreme Court acquitted the

accused for non-compliance of Section 313 Cr.P.C. observing each

material point must be put to the accused. Learned counsel for Rajesh

Ranjan @ Pappu Yadav submitted that Rajesh Ranjan @ Pappu Yadav

had objected the so called material Ext. VII during the trial on

5.11.2003, the trial court had then observed that the objection with

regard to material Ext. VII will be decided at the end of the trial but the

trial court neither rendered any finding on the genuineness of material

Ext. VII nor did the trial court questioned Rajesh Ranjan @ Pappu

Yadav about material Ext. VII in his examination under Section 313

Cr.P.C. on 16.11.2006. It is further submitted that during trial on

8.11.2006 Rajesh Ranjan @ Pappu Yadav requested the trial court to

allow him to peruse the statement of the witnesses for one week but he

trial court not only denied such opportunity to Rajesh Ranjan @ Pappu

Yadav but also deprived him of the opportunity to consult his lawyer on

the questionnaire which was put to him for examination under Section

313 Cr.P.C. as copy of the questionnaire was not given to him

sufficiently in advance to consult his lawyer contrary to the dictim laid


80

down by Supreme Court in Basavaraj R. Patil and others Vs. State of

Karnataka and others, 2001 SCC (Crl.) 87, paragraph 33.


Yadav with reference to the judgment in State of Assam Vs. Nand

Kumar Singh, 1973 Cr. L.J. 521, paragraph 29 submitted that the three

appellants were not put any specific question either on the confession

dated 22.2.1999 or on the retraction made by Rajan Tiwary dated

1.3.1999, 30.3.1999 and 1.5.1999 which is contrary to the provision

contained in Section 313 Cr.P.C. and placing reliance on the judgment

of the Supreme Court in Tara Singh Vs. The State, AIR 1951 SC 441,

paragraph 24, Director of Customs, Akhnoor, Jammu and Kashmir

Vs. Yaspal and another, (2009) 4 SCC 769, Bharat Swain Vs. The

State, 1967 CRI. L. J. 1427, paragraph 9, Shaikh Maqsood Vs. State

of Maharashtra, (2009) 6 SCC 583, paragraph 9, Ashok Kumar

Sharma Vs. State of Rajasthan, (2013) 2 SCC 67 and Kalpnath Rai

Vs. State (through C.B.I. (1997) 8 SCC 732 submitted that for failure

to follow the mandatory provision the appellants deserve acquittal.


Yadav placing reliance on the judgment of the Supreme Court in the

case of John Pandian Vs. State represented by Inspector of Police,

Tamilnadu, (2010) 14 SCC 129, paragraphs 89 to 91 and 94

submitted that neither the print outs nor the evidence of Ramashray


81

Rajak and Om Prakash Ramnani, P.Ws. 6, 52 identified either the caller

or the called or the contents of conversation, as such, according to

learned counsel the same cannot be a evidence to establish conspiracy

between Rajesh Ranjan @ Pappu Yadav and others.


reference to the evidence of P.W. 61 paragraph 108 submitted that

Ravindra Nath Singh, P.W. 7 had not made statement before P.W. 61

during his examination under Section 161 Cr.P.C. that Rajesh Ranjan @

Pappu Yadav during election speech gave threat to the deceased Ajit

Sarkar as has been claimed by P.W. 7 in paragraph 1 of his evidence.

The threat does not even remotely indicate that P.W. 7 heard the threat

himself. P.W. 7 having not made such statement before the I.O. his

evidence about the threat made in the court cannot be relied upon.

Similarly evidene of Lal Bahadur Oraon, P.W. 10 about the threat

extended by Rajesh Ranjan @ Pappu Yadav to deceased Ajit Sarkar in

his election speech is also not to be relied upon as the said witness had

not stated such fact before the I.O., P.W. 61 vide paragraph 107.


reference to the evidence of P.W. 7 pages 33, 34 of the paper book, P.W.

8 paragraph 4 page 42 submitted that landlords were angry about 1992

directives of C.P.I.(M) party whereunder Ajit Sarkar snatched 25000

acres of land from 20-25 big landlords and distributed the same to


82

landless which caused anger amongst the big landlords who were

dispossessed from their land resulting in law and order problem. In this

connection reliance has also been placed on the evidence of Ramdeo

Prasad and Shyamanand Yadav, D.Ws. 16, 17. According to counsel for

appellant the landlords whose lands were grabbed even on the day of

occurrence had immediate provocation and strongest motive to kill Ajit

Sarkar. According to learned counsel it can never be the case of the

prosecution nor is it the case of the prosecution that only Rajesh Ranjan

@ Pappu Yadav had motive to kill Ajit Sarkar. In this connetion, learned

counsel placed reliance on the observations of Harold Laski in

Grammer of Politics ―A man may forgive the murder of his

parents…..but he will never forgive the confiscation of his property‖. It

is submitted that in the light of the aforesaid evidence of P.Ws. 7, 8

P.Ws. 56, 61 both were required to investigate the rift beween landlord

and deceased Ajit Sarkar but such aspect was never investigated which

would be evident from paragraphs 216, 235, 237, 238, 242, 243 and 245

of the evidence of P.W. 61.


reference to the evidence of Dr. R.D. Raman, P.W. 50 paragraph 9

submitted that Dr. Raman is totally independent of both Rajesh Ranjan

@ Pappu Yadav and Ajit Sarkar as he is full time medical practitioner

who has stated in the aforesaid paragraph that in his capacity as a


83

resident of Purnea he says that there was no ill-relation between Rajesh

Ranjan @ Pappu Yadav and Ajit Sarkar. Similar is the evidence of

Pankaj Kumar Yadav, P.W. 48 in paragraphs 67, 68, 69, 70. Learned

counsel with reference to evidence of Ramesh Oraon, P.W. 25 submitted

that P.W. 25 is the Bodygurad of Ajit Sarkar whose loyalty to Ajit

Sarkar was never challenged, even P.W. 25 says that relation between

Ajit Sarkar and Rajesh Ranjan @ Pappu Yadav was cordial. This

prosecution witness has not been declared hostile by C.B.I., as such, his

testimony about the cordial relation between Rajesh Ranjan @ Pappu

Yadav and Ajit Sarkar is required to be accepted.


submitted that defence has made application to the trial court for site

inspection which was opposed by the C.B.I. According to learned

counsel it was necessary for the trial court to visit the place of

occurrence. The trial court‘s rejection of defence plea for inspection of

place of occurrence vide its order dated 24.7.2007 has also prejudiced

the case of the defence which the prosecution ought to have conceded.

This was so because the court ought to have seen whether the witnesses

could see the murder from distance narrated by P.Ws. 8 to 10. The court

could have appreciated how close P.W. 19 Ranu Kumar Singh was to

the place of occurrence. Scene of offence is an objective fact. Not going

to the scene of offence has deprived the court of an objective assessment


84

of P.Ws. 8 to 10 and 19 which has caused failure of justice. There is no

question of the court either believing or disbelieving the scene of

occurrence. In this connection reference is also made to the Memoirs of

M. Hidyatullah in ―My Own Bosswell‖ (2002 reprint) to emphasise the

importance of site inspection. Site inspection referred to in the Memoirs

was done by the Division Bench of the Nagpur High Court comprising

Mr. Justice Hemeon and Mr. Justice M. Hidyatullah. The description of

the site inspection as narrated in the memoirs is quoted hereinbelow for

ready reference :-

―There were a few sensational cases. Only one needs mention.

An Advocate was charged with murder. A dead body was found

in his house buried in a temporary and hastily constructed grave.

This was the body of his friend whom he had invited by letter,

as he explained, to borrow some money. The letter was a fact.

The case of the Advocate was that he had suddenly to leave

Nagpur and did not meet him. His friend had duly come and was

met by one of his relations. They had taken drugs and the friend

died of heart failure. To avoid scandal, the body was concealed

till the lawyer returned but by then it was too late as discovery

had taken place. The cause of death was not established even in

an elaborate autopsy and there was no suggestion of foul play.

The conviction was based on the evidence of a servant who


85

claimed to have seen the victim done to death, through a hole in

the wall. Hemeon and I went to the place and looked through the

hole and mapped the area visible. We agreed as to that and we

got the lawyers also to verify our map. The hole was so small

and so located that almost nothing of the floor area could be

seen. We saw the walls and no murder was committed against

the wall. The boy had deposed that the victim was strangled on

the floor. The Trial Judge had believed this child witness

without visiting the room. We disbelieved him and there was no

other evidnce of murder except the suspicious fact of secret

burial, for which also there was some explanation. This gave

force to the alibi, which was strong.‖


submitted that C.B.I. procured witnesses and established the same with

reference to the evidence of P.W. 10 paragraph 5 where P.W. 10 stated

that his address was given to the C.B.I. by the C.P.M. party leader whose

name he does not know. He was brought before C.B.I. authorities by the

party worker Narendra Singh. In the light of the aforesaid evidence it is

submitted that witnesses did not come to the C.B.I. camp office for

recording their statement on their own and in the process C.B.I. omitted

to examine natural witness like Subhash Singh who had not only reached

the place of occurrence but was the first who informed the wife of the


86

deceased about the occurrence and thereafter took steps to shift the

injured Bodyguard Ramesh Oraon, P.W. 25 to the hospital in Tempo.

Learned counsel also submitted that there has been inordinate delay in

recording the 161 Cr.P.C. statement by C.B.I. as the statement of eye

witnesses i.e. P.Ws. 8 to 10 was recorded on 24.10.1998, 29.10.1998 and

28.10.1998 respectively i.e. beyond four months of the occurrence

without there being any explanation from P.W. 8 as to why he did not

complain before the C.J.M., Purnea about the factum of his signature

having been taken by P.W. 56 on blank paper as also failure of P.W. 56

to record the statement of eye witnesses i.e. 8, 9 and 10. In this

connection, learned counsel submitted that Smt. Madhvi Sarkar having

filed petition dated 19.7.1998 before the C.J.M. for release of the car of

the deceased on which C.J.M., Purnea passed order dated 25.7.1998

after due verification, there is no plausible reason for P.Ws. 8 to 10 not

to inform C.J.M., Purnea about the conduct of P.W. 56 that he had

obtained signature of P.Ws. 8 and 10 on blank paper at the time of

cremation of Ajit Sarkar but is neither examining the eye witnesses nor

taking action against the accused persons.


submitted that in the given facts and evidence of the present case there is

suspicion against Rajesh Ranjan @ Pappu Yadav but suspicion cannot

be a substitute for unimpeachable evidence and unless unimpeachable


87

evidence is available conviction cannot be maintained. Reliance in this

connection is placed on the judgment of the Supreme Court in the case

of Sarwan Singh Rattan Singh (supra), relevant paragraphs whereof is

quoted hereinbelow for ready reference :-

―It is no doubt a matter of regret that a foul cold-blooded and

cruel murder like the present should go unpunished. It may be

as Mr. Gopal Singh strenuously urged before us that there is an

element of truth in the prosecution story against both the

appellants. Mr. Gopal Singh contended that, considered as a

whole, the prosecution story may be true; but between ‗may be

true‘ and ‗must be true‘ there is inevitably a long distance to

travel and the whole of this distance must be covered by legal,

reliable and unimpeachable evidence.‖

73. In this connection, learned counsel also placed reliance on

the judgment of the Supreme Court in the case of Narendra Singh Vs.

State of M.P., (2004) 10 SCC 699 and Dilip and another Vs. State of

M.P., (2007) 1 SCC 450.


submitted that in the instant trial waters of admissible and of

inadmissible evidence have mixed which can neither be separated nor

filtered, hence liable to be rejected in its entirety.

75. Leaned counsel further submitted that even if P.Ws. 8 to 10


88

are believed for sake of argument there is hardly sufficient, acceptable

and admissible evidence of unlawful agreement under Section 120A of

the Penal Code between Rajesh Ranjan @ Pappu Yadav and the other

accused persons for murder of Ajit Sarkar and others to uphold the

conviction of Rajesh Ranjan @ Pappu Yadav under Section 120B of the

Penal Code.

76. Learned counsel for Rajesh Ranjan @ Pappu Yadav next

submitted that the circumstances as relied upon by the prosecution for

corroboration are not such which should persuade this Court to infer

guilt of Rajesh Ranjan @ Pappu Yadav on cogent and firmly established

true fact. The circumstances, are neither unerringly pointing towards the

guilt of Rajesh Ranjan @ Pappu Yadav nor are such forming chain so

complete that there is not escape from the conclusion that within all

human probability the conspiracy to kill Ajit Sarkar was hatched by

Rajesh Ranjan @ Pappu Yadav and none else. The corroborative

circumstance in order to sustain conviction is neither complete nor

capable of explanation of any other hypothesis than the guilt of Rajesh

Ranjan @ Pappu Yadav. The corroborative evidence is neither

consistent with his guilt nor inconsistent with his innocence, hence, there

is hardly any cogent and reliable corroboration of the confession dated

22.2.1999 which could lend support to the contents of the confession.

According to learned counsel Rajesh Ranjan @ Pappu Yadav in his


89

statement under Section 313 Cr.P.C. has explained his defence which is

consistent, natural and probable and is worth credence and belief.

Reliance in this connection is placed on the judgment of the Supreme

Court in the case of Hanumant Govind Nargunkar Vs. State of M.P.,

AIR 1952 SC 343, paragraph 10, Gambhir Vs. State of

Maharashtra, AIR 1982 SC 1157, Vidya Sagar Vs. State of U.P.,

AIR 1977 SC 1116, paragraph 11, State of Goa Vs. Sanjay Thakran,

(2007) 3 SCC 755 and Munna Kumar Upadhyay @ Munna

Upadhyaya Vs. State of Andhra Pradesh , (2012) 6 SCC 174.

77. It is further submitted on behalf of Rajesh Ranjan @ Pappu

Yadav that the trial court has held the appellant Rajesh Ranjan @ Pappu

Yadav as sole conspirator under Section 120B of the Penal Code. There

is no appeal filed against the said finding of the judgment and order by

the State of Bihar through C.B.I. In such circumstances, this Court may

accept the said finding as final and binding upon the respondent State of

Bihar through C.B.I. There cannot be any alteration of the said finding

by this Court at this stage in absence of any appeal made by the State

through C.B.I. challenging the said finding.


submitted that there is no evidence to connect Rajesh Ranjan @ Pappu

Yadav with the conspiracy hatched to terminate Ajit Sarkar. In this

connection it is pointed out that once inadmissible evidence like Ext. 35,


90

material Ext. VII, criminal antecedent etc. is excluded there is nothing in

law to connect Rajesh Ranjan @ Pappu Yadav with the offence of

conspiracy. Learned counsel further pointed out that the prejudice in the

mind of the trial court is inconsistent with the concept of fair trial of the

accused. According to learned counsel learned trial court with no

justification allowed itself to be influenced by utterly inadmissible

evidence like disclosure statement, Ext. 35, photograph material Ext. VII

criminal antecedent etc. The effect of such blatant illegality is that the

entire trial is in violation of Article 21 of the Constitution and the

learned trial court has certainly violated the mandate of just, fair and

reasonable trial enshrined in Articles 14, 21, 22 of the Constitution. In

this connection, reliance is placed on the judgment of the Supreme Court

in the case of Ashok Kumar Sharma Vs. State of Rajasthan, 2013(2)

SCC 67 where the Supreme Court dealing with the right of the accused

under Section 50 of the N.D.P.S. Act of being searched in presence of

Gazetted Officer/Magistrate observed that non-compliane of Section 50

of the N.D.P.S. Act would vitiate the entire trial. It is submitted that in

the instant case failure of P.W. 59 to observe the safeguards under Sub-

sections (2)(3) of Section 164 Cr.P.C. as also Rule 7 of the Delhi High

Court Rules before recording the statement of Rajan Tiwary has vitiated

the entire trial proceeding taken thereafter.



91

assailed the evidence of P.W. 8 in the light of his deposition in

paragraph 2, pages 39, 40(top) where he categorically stated that the

evidence which he recorded in court was not recorded by him before the

I.O. of the local police under Section 161 Cr.P.C. He further assailed his

evidence in the light of the contents of paragraph 7 at page 44 of the

paper book where P.W. 8 stated that he had not given any statement

before the local police on 14.6.1998 that he is an eye witness of the

occurrence. He had also not given such statement on 15.6.1998 but had

put signature over blank paper. Learned counsel assailed the evidence of

P.W. 8 with reference to the contents of paragraph 7 of his evidence at

page 45 where the witness categorically denied the suggestion that he

had made any statement before Sri A.K. Jha Circle Inspector, Purnea on

14.6.1998 at 17.45 hours that he had come to the house of his brother in

the morning between 7-8 A.M. and he was taking walk at about 4.30

P.M. when Madhusudan Rishi resident of Kaliganj and Lal Bahadur

Rishi of Khakibari came. Witness also denied other suggestion made in

this regard.


challenged the evidence of P.W. 8 with reference to his deposition in

paragraph 11 at page 49(bottom) where witness admitted that he had not

shown the place from where he had seen the occurrence to any one.

Learned counsel further impeached the evidence of P.W. 8 with referene


92

to his evidence at page 57(top), 61, 62 and 68 that the witnesses himself

has admitted in paragraph 58(bottom) that he did not inform the wife

and son of the deceased about the occurrence.


challenged the evidence of P.W. 9 with reference to his evidence in

paragraph 5 at page 76 that he reached the place of occurrence soon after

the assailants made their escape and then he touched the deceased to

confirm his death.

82. Learned counsel also assailed the evidence of P.W. 10 with

reference to his deposition in paragraph 6(bottom) that he and others had

not disclosed about the occurrence to the local police including superior

authorities, though they had come to the place of occurrence within 15-

20 minutes of the occurrence as also along with the Hon‘ble Chief

Minister. Learned counsel further assailed the evidence of P.W. 10 with

reference to the contents of paragraph 10 at page 106, 107 where the

witness has admitted that he, Kalyan Chandra Sarkar and Madhusudan

Rishi were the first person who arrived at the place of occurrence and

after they raised alarm others came, yet the witness and his friends did

not choose to disclose the identify of the accused persons to any one on

the date of occurrence. Learned counsel submitted that if the witnesses

had not chosen to disclose about the occurrence to the local police

within reasonable time of the occurrence and had made their statement


93

for the first time after four months of the occurrence before the C.B.I.,

such statement cannot be relied upon.

83. Learned counsel for Rajesh Ranjan @ Pappu Yadav finally

submitted that many prosecution witnesses have turned hostile as the

witnesses have not supported the genesis of prosecution case and as per

settled law by the Supreme Court in Mukhtiar Ahmed Ansari Vs. State

(NCT of Delhi), AIR 2005 SC 2804, paragraphs 34, 35 and 42 the

appellant may be permitted to rely on the evidence of such hostile

witnesses for grant of benefit of doubt.

Submission on behalf of C.B.I.

84. Learned Additional Solicitor General of India appearing

for the C.B.I. submitted that the Government of India issued notification

dated 28.9.1998, Ext. 42 entrusting the investigation of K.Hat P.S. Case

No.230/98 to the C.B.I. In the light of the notification dated 28.9.1998,

for administrative reasons, Superintendent of Police, C.B.I. on

12.10.1998 registered RC 12(S)/98/SIC-IV/New Delhi, Ext. 31/1

incorporating the contents of the fardbeyan of K.Hat P.S. Case

No.230/98. Having registered RC 12(S)/98/SIC-IV/New Delhi the same

was forwarded to the competent court and was received in the court of

Special Magistrate, C.B.I., Patna on 29.10.1998, meanwhile

investigating team of C.B.I. having reached Purnia on 22.10.1998

informed the C.J.M., Purnia about the registration of RC 12(S)/98/SIC-


94

IV/New Delhi and thereafter recorded the statement of M/s. Kalyan

Chandra Sarkar, Madhusudan Rishi, Lal Bahudar Oraon, P.Ws. 8, 9 and

10 on 24.10.1998, 29.10.1998 and 28.10.1998 respectively. Delhi police

arrested Rajan Tiwary on 12.2.1999 and produced him before Sri K.S.

Mohi, Metropolitan Magistrate, Tis Hazari on 13.2.1999. Sri Mohi

remanded Rajan Tiwary to judicial custody for 14 days i.e. until

26.2.1999 in connection with R.K. Puram P.S. Case No. 122/99, which

is evident from application dated 13.2.1999 filed by S.I. Palvinder

Singh, Special Team Crime Branch, Ext. F/4. Counsel for C.B.I.,

however, submitted that before Rajan Tiwary could be lodged in judicial

custody in Tihar Jail pursuant to order dated 13.2.1999 passed by Sri

Mohi another order was passed on the same day i.e. 13.2.1999 (Second

Saturday) by Duty Magistrate on the basis of disclosure made by Rajan

Tiwary to Delhi Police authorizing his custody to the C.B.I. for 10 days

i.e. until 23.2.1999. In the light of the subsequent order of the Duty

Magistrate I.O. of the present case, P.W. 61 received Rajan Tiwary in

muffled condition with warrant and made such endorsement on the

petition dated 13.2.1999 filed by S.I. Palvinder Singh, which is evident

from Ext. F.

85. For better appreciation of the aforesaid submission this

Court directed the learned counsel for C.B.I. to refer to the subsequent

order dated 13.2.1999 passed by the Duty Magistrate authorizing C.B.I.


95

custody of Rajan Tiwary until 23.2.1999 from the records. Counsel then

submitted that the subsequent order passed by the Duty Magistrate on

13.2.1999 may be available in the records of R.K. Puram P.S. Case

No.122/99. To verify the aforesaid submission of the learned counsel

this Court under order dated 12.2.2013 called for the records of R.K.

Puram P.S. Case No.122/99, which was received in this Court on

18.2/2013. With the assistance of the counsel for the parties the records

of R.K. Puram P.S. Case No.122/99 was examined but neither the

original nor the copy of subsequent order dated 13.2.1999 passed by the

Duty Magistrate authorizing the C.B.I. custody of Rajan Tiwary until

23.2.1999 was found. Learned counsel then submitted that copy of

subsequent order dated 13.2.1999 may not be available in the records of

R.K. Puram P.S. Case No.122/99 but copy thereof having been filed by

Rajan Tiwary himself as Annexure-8 series to the supplementary

affidavit filed in Cr. Misc. No.10646/2003(Rajan Tiwary Vs. State) there

should not be any dispute about the existence of the said order.

86. Learned counsel for C.B.I. further submitted that C.B.I.

having obtained possession of Rajan Tiwary on 13.2.1999 interrogated

Rajan Tiwary who made disclosure statement vide memo dated

17.2.1999, Ext. 43/1 pointing out the manner, place of occurrence and

the P.C.O. from which he informed Rajesh Ranjan @ Pappu Yadav

about the killing of Ajit Sarkar. On the same day Sri N.H. Kharaiyat,


96

P.W. 61 searched Premise No.173, North Avenue, New Delhi in

occupation of Sri Rajesh Ranjan @ Pappu Yadav in presence of

independent witnesses Sri A.K. Dhand, Assistant M/O Industry,

Department of Industrial Policy and Promotion, Udyog Bhawan, New

Delhi and Sri B.K. Bhardwaz, U.D.C., M/O Entry, Department of

Industrial Policy and Promotion, Udyog Bhawan, New Delhi and

recovered letter head pad of Sri Rajesh Ranjan @ Pappu Yadav,

Member of Parliament, four sheets blank and one coloured photograph

of Mr. and Mrs. Rajesh Ranjan @ Pappu Yadav, son Sarthak and one

more person vide search list, Ext. 1/18, material Ext. VIII. To confirm

the call referred to in the disclosure statement of Rajan Tiwary call

details, Ext. 3 series were obtained.

87. Appellant Anil Kumar Yadav was arrested by the C.B.I.

on 17.2.1999 and taken on police remand for 10 days, made disclosure

statement vide memo dated 18.2.1999, Ext. 43 on the basis of which red

bullet motorcycle used in the crime was also recovered on the same day

i.e. 18.2.1999 vide pointing out cum recovery and seizure memo dated

18.2.1999, Ext. 40. In the light of the disclosure statement made by

Rajan Tiwary before the C.B.I. on 17.2.1999 I.O. of C.B.I. filed petition

dated 22.2.1999 Ext. 41 before the Chief Metropolitan Magistrate, Delhi

so as to enable Rajan Tiwary to record his statement under Section 164

Cr.P.C. Perusal of petition dated 22.2.1999 Ext. 41 indicates that C.B.I.


97

arrested accused Rajan Tiwary who played main role in the crime and

unearthed the actual criminal conspiracy attributing the role of other

accused persons. Statement of Rajan Tiwary was recorded by the C.B.I.

whereunder he supported the case of C.B.I. and made statement against

other accused divulging their conspiracy and involvement of other

important suspect who are having good social status in the society. In the

light of the request made in petition dated 22.2.1999, C.M.M., Delhi

made over the petition to Sri Gurdeep Singh Saini, Metropolitan

Magistrate under his endorsement dated 22.2.1999 itself, Ext. 36.

Having received petition dated 22.2.1999 Sri Gurdeep Singh Saini

Metropolitan Magistrate considered the petition and directed that the

accused Rajan Tiwary be again produced before him on the same day at

12.30 P.M. In the light of the aforesaid order of the Metropolitan

Magistrate Rajan Tiwary was again produced before Sri Gurdeep Singh

Saini Metropolitan Magistrate at 12.30 P.M. when learned Magistrate

made further endorsement on the petition, which is marked as Ext. 36/1

and proceeded to record following order :-

22.02.99

12.30

PM

―An application for recording of statement of

accused Rajan Tiwari s/o Vishwa Jeevan Ram Tiwari

was moved before Ld. CMM and the same was assigned

to me. The accused Rajan Tiwari was produced in

muffled face before me. I have sent all the police

persons out of the Court and the accused is made to sit

in my chamber. I have explained to the accused that he


98

is not bound to make his statement. He is also told that

if he makes the statement it can be used against him as

evidence. He insisted on making the statement. I have

given him time of one hour to think over it again.‖

Sd/-

MM

22.02.1999

88. In the light of the order passed by the Metropolitan

Magistrate at 12.30 P.M. he again interacted with Rajan Tiwary at 1.15

P.M. and recorded the following order as also his satisfaction about the

voluntary nature of the statement which Rajan Tiwary was proposing to

make before him.

1.15 PM ― Present accused Rajan Tiwari in my chamber. I have

again asked the accused that whether he wants to give

confessional statement. He stated that he want to bring real

culprit to book and I am making statement voluntarily. I have

again warned him that he is not bound to make confessional

statement and his statement can be used as evidence against

him, but he persisted in making the statement. I have

questioned him as follows.

Ques :- Why do you want to make confessional statement?

Ans :-

Ques :- Whether you have been pressurized by Police or CBI

to make statement?

Ans :-


99

RO & AC Sd/-

Sd/- MM Delhi.

Rajan Tiwari 22.02.99

I am satisfied that the accused Rajan Tiwari is

making confessional statement voluntarily without any

force from any quarter in order to make clean breast. Let

his statement u/s 164 Cr.P.C. be recorded.

Disclosure of Sh. Rajan Tiwary s/o Sh. Vishwa Jeevan

Tiwari age-26 years R/o village Saharsa, P.O. Saharsa, PS

Gagha, Distt. Gorakhpur, UP.

Without oath.

89. The signature of Rajan Tiwary over the order sheet of the

learned Metropolitan Magistrate and the last page of the confessional

statement has been marked as Exts. 34 and 34/1. Confessional statement

of Rajan Tiwary has been marked as Ext. 35. Perusal of confessional

statement of Rajan Tiwary Ext. 35 indicates that the same has been

recorded in four pages but Rajan Tiwary put his signature only on the 4th

page, which has been marked as Ext. 34/1.

90. Rajan Tiwary was put on T.I. Parade on 1.5.1999 in Beur

Jail, Patna and was identified by K.C. Sarkar, P.W. 8 but before

proceedings could be completed disturbance was created and the

Magistrate submitted report dated 3.5.1999, Ext. 7. Another T.I. Parade

was arranged on 12.5.1999 when Rajan Tiwary was identified by P.Ws.

9 and 10 vide T.I. Chart, Ext. 6. C.B.I. having completed investigation in


100

RC 12(S)/98 submitted charge sheet no.01 dated 10.5.1999 indicating

Rajan Tiwary and Anil Kumar Yadav as the accused in judicial custody

and sent up for trial. The other three i.e. Rajesh Ranjan @ Pappu Yadav,

Harish Chaudhary and Amar Yadav were shown as absconder. Rajesh

Ranjan @ Pappu Yadav was arrested on 23.5.1999 and supplementary

charge sheet no.04 dated 19.8.1999 was submitted naming Rajesh

Ranjan @ Pappu Yadav in column no.1 of the supplementary charge

sheet, Harish Chaudhary and Amar Yadav were again shown as

absconder.

91. After issue of notification of the Government of India

dated 28.9.1998 and registration of RC12(S)/98/SIC-IV/New Delhi by

the C.B.I. on 12.10.1998 but before submission of charge sheet dated

10.5.1999, supplementary charge sheet dated 19.8.1999 appellant Rajesh

Ranjan @ Pappu Yadav filed Cr. Writ Petition No.258 of 1999 before

Delhi High Court on 26.3.1999 praying inter alia to quash the

notification of the Government of India dated 28.9.1998 entrusting

investigation of Case No.230/98 P.S. K. Hat, Purnia to C.B.I. including

investigation conducted by C.B.I. after registration of RC 12(S)/98/SIC-

IV/New Delhi on the ground that after submission of charge sheet in

F.I.R. No.230/98, P.S. K. Hat, Purnia, Bihar cognizance of the offence

found true during investigation by the Purnia police having already been

taken by the competent court i.e. C.J.M., Purnia, C.B.I. had no


101

jurisdiction to investigate de novo. It is submitted by the counsel for the

C.B.I. that from perusal of writ petition, paragraph 4 and the counter

affidavit filed on behalf of the respondents it would appear that appellant

Rajesh Ranjan @ Pappu Yadav was aware of the disclosure statement,

confession recorded under Section 164 Cr.P.C. by Rajan Tiwary and

Anil Yadav.

92. In response to the prayer made in the writ petition C.B.I.

filed counter affidavit stating that the appellant Rajesh Ranjan @ Pappu

Yadav is a dreaded criminal who is also involved in the murder of

Kalyan Chandra Sarkar. His involvement in the said murder has come to

light during investigation of the said case by the C.B.I. pursuant to the

notification of the Government of India dated 28.9.1998 and registration

of RC 12(S)/98/SIC-IV New Delhi on 12.10.1998. In the light of the

material collected during investigation non-bailable warrant has been

issued for his arrest on 6.3.1999 but he is absconding and evading arrest.

Delhi High Court having considered the contents of writ petition,

counter affidavit and having noticed the suppression made by appellant

Rajesh Ranjan @ Pappu Yadav dismissed the writ petition imposing

cost of Rs. 25,000/- under order dated 5.5.1999. Perusal of the said order

would indicate that while dismissing the writ petition Delhi High Court

held that the writ petition was filed by Rajesh Ranjan @ Pappu Yadav to

thwart further investigation by the C.B.I. in the murder of Ajit Sarkar.


102

Delhi High Court in the said order also noticed the suppression made by

Rajesh Ranjan @ Pappu Yadav that he had earlier filed an application

for anticipatory bail which was subsequently withdrawn by him but such

information was withheld from the Delhi High Court. Having noticed

the said suppression, Delhi High Court directed its Registrar General to

file a complain before an appropriate Court against the appellant for

making false statement in Paragraph-10 of the petition that there was no

question of his absconding from prosecution when it is clear that on the

date of the petition i.e. 26.3.1999 appellant Rajesh Ranjan @ Pappu

Yadav was already an absconder evading arrest in response to warrant

issued by the Special Magistrate, C.B.I., Patna on 6.3.1999.

93. Counsel for the C.B.I. next submitted that appellant

Rajan Tiwari also challenged charge-sheet submitted by the C.B.I in R.C

12 (S)/98/ SIC-IV New Delhi dated 10.5.1999 before this Court by filing

Cr. Misc. No. 24843/2000 on 30.8.2000 on the ground that though the

provisions of Section 173(8) of Cr.P.C. provides for further investigation

but that does not mean a fresh investigation which appears to have been

done by the C.B.I. in the present case as in its investigation C.B.I. has

propounded a new theory about the murder which is not at all in

conformity with the findings of the local Purnea Police which submitted

charge-sheet dated 19.9.1998 and cognizance of the offence was also

taken by the C.J.M., Purnea under order dated 23.9.1998. Aforesaid


103

submission was repelled by the Court in Paragraph 6 of its order dated

20.3.2002, reported in 2002(4) PLJR 327 with reference to the

notification of the State Government dated 11.8.1998, Ext. 8 in terms

whereof State Government recommended to the Government of India

under Section 6 of Delhi Police Establishment Act to entrust the

investigation of K. Hat P.S. Case No. 230/98 dated 14.6.1998 to the

C.B.I. and held that as the State Government had the power to take away

the investigation from the local police and to entrust it to the C.B.I.

which entrustment was made before the State Police submitted charge-

sheet, submission of charge-sheet by the C.B.I. was not a case of further

investigation into a case and the C.B.I. was authorized to investigate the

case in the manner as it deemed fit and to reach its own conclusion. This

Court in the bottom of Paragraph 6 clearly held that grant of consent by

the State Government would tantamount to taking over the investigation

from the State police and to transfer it to the C.B.I. Having held as

above, the petition questioning the submission of charge-sheet by the

C.B.I. was dismissed.

94. Rajesh Ranjan @ Pappu Yadav filed Cr. Misc. No.27412

of 2000 before the Patna High Court on 19.9.2000 seeking transfer of

case records of K. Hat P.S. Case No.230/98 from C.J.M., Purnea to the

court of Additional Sessions Judge-XI cum C.B.I. Court, Patna so as to

enable the Additional Sessions Judge-XI cum C.B.I. Court, Patna to try


104

both the sets of accused persons sent up for trial by the Purnea police

under charge sheet dated 20/21.09.1998 and by the C.B.I. under charge

sheet/ supplementary charge sheet dated 10.5.1999/ 19.8.1999 filed in

RC No. 12(S)/98 but the application was dismissed under order dated

19.04.2001.

95. Supreme Court under order dated 25.7.2001 reported in

(2004) 7 SCC 539 set aside the order dated 6.9.2000 granting bail to

appellant Rajesh Ranjan @ Pappu Yadav.

96. On 9.4.2003 Madhusudan Rishi, P.W. 9 expressed his

apprehension with regard to threat to his life before the trial court and

the trial court under order dated 9.4.2003 appreciating the gravity of the

threat directed S.P., Purnea to make necessary arrangement.


(2004) 7 SCC 528 set aside the order granting bail to Rajesh Ranjan @

Pappu Yadav. Perusal of said order indicates that Supreme Court took

note of the fact that large number of witnesses examined after release of

the appellant on bail turned hostile and there were complaints made to

the court about the threat administered by the said accused or his

conspirators to witnesses in the case.

98. In the light of the complaint dated 9.3.2004 made by R.N.

Singh, P.W. 7 the trial court under order dated 7.5.2004 directed

Director General of Police, Bihar and S.P., Purnea to make necessary


105

arrangement for the security of P.W. 7.


(2005) 3 SCC 307 directed that Rajesh Ranjan @ Pappu Yadav be kept

in prison cell like any other prisoner and should not be kept in hospital

on his request which was not genuine. Furthermore contempt notice was

issued to Medical Superintendent, Medical College and Hospital, Patna

for furnishing false information to court. Supreme Court also observed

that Rajesh Ranjan @ Pappu Yadav had surreptitiously managed to

obtain his production warrant from Fast Track Court in connivance with

the Peskar and used this opportunity to address election meeting at his

constituency in Madhepura. The Court took suo motu cognizance of

newspaper report under order dated 3.2.2005 reported in (2005) 3 SCC

310, 311.


(2005) 2 SCC 42 cancelled the bail granted by the High Court to Rajesh

Ranjan @ Pappu Yadav observing that the approach of the High Court

was irresponsible, contrary to record and tantamounts to overruling the

finding of the Supreme Court by substituting its own subjective

satisfaction.


(2005) 3 SCC 284 transferred Rajesh Ranjan @ Pappu Yadav from

Beur Jail, Patna to Tihar Jail, Delhi for causing and being involved in


106

serious blatant and unabashed violation of the Bihar Jail Manual and for

utter disregard to the rule of law coupled with complete inability or

unwillingness of the jail authorities to prevent such violation by him.

102. During the pendency of this appeal Rajesh Ranjan @

Pappu Yadav was admitted to the privilege of bail by the High Court

under order dated 18.2.2009 which was set aside under order dated

3.5.2010 reported in (2010) 6 SCC 417 with reference to the

observations made by the Supreme Court in its earlier order reported in

(2007) 1 SCC 70, paragraph 24 that in the facts and circumstances of

the case Supreme Court found no merit in the appeal filed by Rajesh

Ranjan @ Pappu Yadav which was dismissed observing that no further

application for bail will be considered on his behalf in this case by any

court as already a large number of bail applications have been rejected

earlier both by the High Court and the Supreme Court.

Further investigation/reinvestigation and Discharge of

previous set of accused by the Special Judicial

Magistrate

103. Learned counsel for the C.B.I. with reference to the

judgment of the Supreme Court in the case of Central Bureau of

Investigation Vs. Rajesh Gandhi, (1996) 11 SCC 253, paragraphs 8,

9 submitted that decision to investigate or the decision on the Agency

which should investigate does not attract principles of natural justice.


107

The accused cannot have a say in the matter of Agency which should

investigate the offences he is charged with. There is no provision in law

under which while granting consent or extending the powers and

jurisdiction of the Delhi special Police Establishment to the specified

State and to any specified case reasons are required to be recorded on the

face of the notification. In this connection, he also referred to the

judgment of the Supreme Court in the case of Vipul Shital Prasad

Agarwal Vs. State of Gujarat and Another, (2013) 1 Supreme Court

Cases 197, paragraphs 4, 13, 18 and the judgment of the Supreme

Court in the case of T.T. Antony Vs. State of Kerala and others, AIR

2001 Supreme Court 2637, paragraphs 9, 11, 15, 18, 27, 28, 35 and

Union of India Vs. Prakash P. Hinduja and another, (2003) 6 SCC

195, paragraphs 10, 16, 17, 20, 21 and defended the decision of the

State Government to grant consent for investigation of K.Hat P.S. Case

No. 230/98 by the C.B.I. under notification dated 11.8.1998, Ext. 8 and

the decision of the Government of India to entrust such investigation to

the C.B.I. under notification dated 28.9.1998, Ext. 42.

104. Learned counsel for the C.B.I. further submitted that

having registered RC 12(S)/98/SIC-IV/New Delhi on 12.10.1998 for

administrative convenience it was the duty of the C.B.I. to further

investigate the offences committed in connection with incident in

question i.e. murder of Ajit Sarkar and two others by examining the


108

prosecution witnesses including others and to reach its own conclusion

about the set of accused i.e. appellants and others involved in the crime

and to file charge sheet dated 10.5.1999 and the supplementary charge

sheet dated 19.8.1999. He further submitted that it was the Special

Judicial Magistrate, C.B.I., Patna who passed order dated 15.9.1999 in

consideration of the charge sheet dated 10.5.1999 and supplementary

charge sheet dated 19.8.1999 submitted by the C.B.I. recommending

these appellants and two others to face trial in connection with murder of

Ajit Sarkar and while considering the said charge sheet C.B.I. Magistrate

discharged the accused sent up for trial under charge sheet dated

20.9.1998 and only committed the case of the appellant charge-sheeted

by the C.B.I. for trial. The failure of the Magistrate not to commit the

case of the accused persons sent up for trial by the Purnea Police, the

investigation of the offence made by the C.B.I. and the trial of the

appellants cannot be questioned.

105. According to learned counsel for C.B.I. mere fact that

during further investigation of the offence it emerged that persons other

than the accused arrayed by Bihar Police were involved does not mean

that reinvestigation was conducted by the CBI. It is respectfully

submitted that the Investigation Agency has the right and sacrosanct

duty to investigate the matter independently and impartially and place

all the relevant material for the consideration of the Court. It would be


109

relevant to note that during course of further investigation by CBI,

Kalyan Chandra Sarkar, Lal Bahadur Uraon stated before CBI that the

Fard Bayan alleged to have been recorded by Bihar Police was merely

signed by them without reading the contents thereof. Other than the

alleged Fard Bayan recorded by Bihar Police, there existed no evidence

against the set of persons stated to be the assailants in the said Fard

Bayan. Rather it was the categoric and consistent assertion of the

witnesses that the said persons were not involved and in fact certain

other persons were the assailants. During the course of further

investigation the version of the witnesses was found to be reliable as it

found confirmation from the judicial confession of the unknown

assailant who turned out to be Rajan Tiwari and the said confession was

found to be truthful as it found corroboration in material particulars

from various circumstances that are proved from cogent documentary

evidence. Therefore, in light of these attending circumstances the CBI

filed the first supplementary charge sheet in the case on 10.05.1999

against Rajan Tiwari and Anil Kumar Yadav. Other co accused persons

namely Rajesh Ranjan @ Pappu Yadav, Harish Chaudhary and Amar

Yadav were arrested subsequently and therefore further supplementary

charge sheets were filed. Reliance is placed on the observations of the

Hon‘ble Supreme Court in TT Antony v. State of Kerala reported as

(2001) 6 SCC 181 wherein illustration in Para 18 is pressed into service.


110

It assumes significance that all the material collected by Bihar Police

was duly placed in all fairness before the CBI court by the CBI and even

the investigating officer of the Bihar Police was arrayed as prosecution

witness as the CBI had conducted only further investigation in the

matter and not reinvestigation in which case the material collected

earlier may not have been produced before the court. It is respectfully

submitted that the supplementary charge sheet was filed by the CBI

before the Court of Learned Special Judicial Magistrate-CBI, Patna as

only he is competent to receive charge sheets submitted by CBI to the

exclusion of all other magistrates and he is notified with such powers by

the State Government in consultation with the Hon‘ble High Court.

Reliance is placed upon the decision reported as (2008) 2 SCC 383

titled State of Andhra Pradesh v. A. .S Peter that is squarely

applicable to the facts of the present case and buttresses the said

proposition. Therefore it is evident that further proceedings in the said

case could be carried out before the said Magistrate only and Chief

Judicial Magistrate, Purnea stood divested from any powers in regard to

the case upon transfer of investigation from the State Police to the CBI.

In view of the above, it is humbly submitted that the Learned Chief

Judicial Magistrate- Purnea was not competent to keep the matter

pending before him and should have on its own transferred the records

to the Court of Learned Special Judicial Magistrate CBI, Patna.


111

106. The second limb of the submission of the appellants

that even for conducting further investigation in terms of section 173(8)

of Cr.P.C. formal permission of the Magistrate must necessarily be

sought by the investigation agency in view of the recent judgment dated

13.12.2012 of the Hon‘ble Supreme Court in Vinay Tyagi v. Irshad

Ali Criminal Appeal no. 2040-2041 of 2012 is of no avail as the

Learned Chief Judicial Magistrate vide order dated 23.09.1998

permitted the Bihar Police to carry on further investigation with respect

to the appellants herein and others. The CBI has stepped into the shoes

of the state Police and therefore was entitled to carry on further

investigation in the offence. There is no quarrel with the proposition

lamented in the aforesaid judgment of the Supreme Court and in the

facts of the present case formal permission had been sought from the

Learned Magistrate before carrying on further investigation. Reliance is

placed upon 3 judge bench decision of Apex Court in State of Bihar

and another v. J.A.C. Saldanha and others reported as (1980) 1 SCC

554 wherein it was held that even Superior Officer has the

untrammeled power to undertake the exercise of further investigation.

Reliance is placed on the judgment of the Hon‘ble Supreme Court in

Union of India v. Prakash P. Hinduja and another reported as (2003)

6 SCC 195 wherein it was held that even if there is an illegality in

investigation the same does not vitiate the cognizance and trial


112

subsequent thereto. Recently the Hon‘ble Supreme Court in its

judgment titled Vipul Shital Prasad Agarwal v. State of Gujarat and

another reported as (2013) 1 SCC 197 has held in para22 that it is the

administrative practice of the CBI to reproduce the FIR of the local

police inform of RC and the same cannot be construed to mean that a

fresh FIR has been registered by the CBI.

107. Learned counsel submitted that there was no evidence

against accused Bipin Singh @ Bipin Chaudhary, Diwakar Chaudhary,

Jawahar Yadav @ Nirmal Yadav, Abdul Sattar and Pappu Dev @

Sanjay Dev, a request was made by CBI for their discharge. The

contention on behalf of the appellant before this Hon‘ble Court that the

learned Special Judicial Magistrate, CBI was not competent to discharge

the said accused and discharge, if any, could have been made by the

Additional Sessions Judge can have no force as all the grievances of the

appellants against the factum of their being charge sheeted were agitated

before the Higher Courts and the same were rejected. The order of the

learned Special Judicial Magistrate dated 15.09.1999 discharging the

previous accused was not assailed by the appellants as evidently no

prejudice was felt by them. The factum of the said accused persons not

being committed, therefore not charged and consequently not put to trial

cannot effect the trial of the appellants in any manner. Even assuming

that there was some procedural irregularity or failure on part of the


113

Learned Magistrate in discharging the accused, such alleged impropriety

at the pre-trial stage would not vitiate the trial of the appellants as no

prejudice has been demonstrated at their instance which resulted in

failure of justice. It is a settled proposition that the object of criminal

justice machinery is to punish the guilty if the evidence led at trial

proves the culpability beyond reasonable doubt and the entire exercise

cannot be rendered non-est on account of an alleged irregularity which

admittedly has caused no prejudice to the accused much less, resulted in

any failure of justice. Furthermore, if at any time evidence against the

persons arrayed as accused by Bihar police emerged before the Learned

Sessions Court recourse to the provision of section 319 Cr.P.C. could

have been taken at any stage. Even otherwise in ultimate analysis the

function of the Learned Trial Court and this Hon‘ble Court exercising its

appellate jurisdiction in terms of section 374 Cr.P.C. is required to

assess the credibility of evidence qua the appellants herein and if the

evidence inspires confidence the court may act upon it to tender a

finding of guilt, as has been done in the instant case by the Learned Trial

Court. The scope of the present appeal is confined to the conclusions

arrived at by the Learned Trial Court based upon the evidence led before

it against the accused persons who were charged i.e. the appellants-

herein. It has been consistently held by the Supreme Court that any

defect, irregularity and absence of charge cannot ipso facto result in


114

vitiating trial. Reliance is placed upon constitution bench decision in

AIR 1956 SC 116- Willie (William) Slaney v. State of Madhya

Pradesh. Significantly, the Hon‘ble Supreme Court in decision reported

as (2012) 2 SCC 188 titled Nupur Talwar v. CBI, Dehi has held that

the Magistrate even in cases where final report is filed by the

Investigating Agency, is competent under the code to refuse to take

cognizance and is not bound by the opinion of the Investigating Officer.

108. Learned counsel for the C.B.I. next submitted that the

challenge on behalf of the appellant Rajesh Ranjan @ Pappu Yadav to

the validity of Section 30 of the Evidence Act whereunder judicial

confession recorded by an accused is not only admissible against him

but also against co-accused without giving opportunity to the co-accused

to cross-examine the accused recording confession implicating him has

to be upheld in view of the safeguards provided under Sub-Sections (2),

(3), (4) of Section 164 Cr.P.C. He further submitted that vires of even

more draconian provision contained in Section 15 of the Terrorist and

Disruptive Activities (Prevention) Act, 1987 as amended by TADA

(Amendment) Act, 1993 providing for confession made by a person

before a police officer not lower in rank than a Superintendent of Police

and recorded by such police officer either in writing or on any

mechanical device like cassettes, tapes or sound track shall be

admissible in trial of such person or co-accused abettor or conspirator


115

has already been upheld in the light of the statutory warning contained in

Sub-Section (2) of Section 15 of TADA Act required to be given by the

police officer to the person making the statement before recording his

statement vide judgment of the Supreme Court in the case of Kartar

Singh Vs. State of Punjab, (1994) 3 SCC 569, paragraphs 192 to 197,

205, 210 to 212, 214 to 223, 255.

109. Learned counsel for the C.B.I. next submitted that in the

instant case Sri G.S. Saini, P.W. 59 the then Metropolitan Magistrate

granted sufficient time for reflection to Rajan Tiwary and on his

insistence to record statement as he wanted to improve himself

proceeded to record the statement of Rajan Tiwary after administering

statutory warning in terms of Sub-Section (2) of Section 164 Cr.P.C. that

the statement which he is proposing to record will be used against him in

evidence, which is evident from endorsement made by Sri Saini over

petition filed by I.O., P.W. 61 for recording the statement of Rajan

Tiwary under Section 164 Cr.P.C. as also from the order sheet

maintained by Sri Saini on that date and the certificate recorded by him,

as is required under Sub-Section (4) of Section 164 beneath the

statement.


submission made on behalf of the appellant Rajan Tiwary that he having

not been allowed at least 24 hours time for reflection the confession


116

recorded by him on 22.2.1999 is wholly involuntary and fit to be

rejected in view of the judgment of the Supreme Court in the case of

Kartar Singh(supra), paragraph 390 is misconceived as paragraph 390

is the minority opinion of K. Ramaswamy J. where his lordship observed

with reference to the judgment of the Supreme Court in the case of

Sarwan Singh(supra), paragraph 10 that sufficient time should be given

to the accused for reflection, but no hard and fast rule could be laid as to

the proper time for reflection.


confession under Section 164 Cr.P.C. is to be recorded as per the manner

provided in Section 281 Cr.P.C. Learned counsel distinguished the case

of Sarwan Singh (supra) and submitted that confession recorded by

Sarwan Singh was rejected as visible mark of injury was noticed by the

Magistrate before recording the confession, yet he was not granted 24

hours time for reflection. In the case of Rajan Tiwary no visible mark

having been seen on the person of Rajan Tiwary and Rajan Tiwary was

insisting to record his confession so as to improve himself Metropolitan

Magistrate, P.W. 59 allowed him 45 minutes time for reflection. Counsel

for the C.B.I. relied upon the judgment of the Supreme Court in the case

of Shankaria Vs. State of Rajasthan, 1978(4) SCC 453, paragraphs

9, 10, 16, 17, 18 to 23, 27 and submitted that on June 12, 1974

Shankaria under the orders of the Magistrate was lodged in judicial lock


117

up. On June 13, 1974 application was filed to the Judicial Magistrate Ist

Class requesting him to record the confessional statement of Shankaria.

The Magistrate thereupon passed order that Shankaria be produced from

judicial lock up on June 14, 1974 at 7 A.M. for the purpose. Shankaria

was accordingly, produced before the Magistrate for recording his

confession on June 14, 1974 at 7 A.M. The Magistrate put some

questions to Shankaria by way of preliminary examination to ensure that

he wanted to make statement voluntarily. The Magistrate gave Shankaria

sometime for reflection and proceeded to record his confession from

8.45 A.M. onwards, yet the confession of Shankaria recorded by the

Magistrate. He submitted that following the law laid down by the

Supreme Court in the case of Shankaria (supra) this Court should also

accept the confession recorded by Rajan Tiwary, Ext. 35.

112. Learned counsel for the C.B.I. also submitted that

safeguard provided under Sub-Section (3) of Section 164 Cr.P.C. is not

required to be read into Sub-Section (2) of Section 164 Cr.P.C. and

submitted that as P.W. 59 had taken the precaution required under Sub-

Section (2) of Section 164 Cr.P.C. before proceeding to record the

confession, confession of Rajan Tiwary Ext. 35 is fit to be relied upon

by this Court. Reliance in this connection was placed by the learned

counsel for the C.B.I. on the judgment of the Supreme Court in the case

of Ravindra Kumar Pal (supra), paragraph 22.


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113. Learned counsel for the C.B.I. with reference to the

judgment of the Calcutta High Court in the case of Subodh Kumar

Dhar Ray and others Vs. State on First Information Report of

Rajendra Lal Das, 1966 Cri.L.J. 323, paragraphs 13, 16, 38

submitted that Calcutta High Court in the case of Subodh Kumar Dhar

Ray (supra) distinguished the judgment of the Supreme Court in the case

of Sarwan Singh (supra) as Sarwan Singh before recording his

confessional statement was in police custody for more than 5 days but

was just given half an hour time to reflect whether he would make a

confession. Having distinguished the judgment in the case of Sarwan

Singh (supra) Calcutta High Court accepted the confession made by the

accused who was not granted 24 hours time to reflect as the accused

remained in police custody for a short time before recording confession

and there was no evidence to show that any threat, coercion or

inducement was offered by the police to the accused persons before they

made confession.

114. Learned counsel for the C.B.I. also relied on the

judgment of the Supreme Court in the case of Sidhartha and others Vs.

State of Bihar, (2005) 12 SCC 545, paragraphs 10, 14, 15, 16, 18, 19,

20 and submitted that the confession made by the accused under Section

164 Cr.P.C. is to be relied upon for corroborating the prosecution case.

115. Learned counsel for the C.B.I. reiterated the


119

submissions made above by filing written submission and explaining the

legal position with regard to judicial confession. It was foremost

contended that reflection time of 24 hours was not provided to the

accused and the confession was recorded merely after 45 minutes which

is in teeth with the observation of Hon‘ble Supreme Court in Sarwan

Singh v. State of Punjab reported as AIR 1957 SC 637. The said

observations in the case of Sarwan Singh (Supra) have been affirmed by

a Single Judge (Hon‘ble Mr. Justice Ramaswamy) in his dissenting view

in the judgment of the Supreme Court in Kartar Singh v. State of

Punjab reported as (1994) 3 SCC 569 in the context of recording

confessions under TADA. Relevant would it be to note at the outset the

said view of Justice Rama Swamy was not endorsed by the majority

Judges. It is respectfully submitted that no inexorable proposition was

laid down in the Sarwan Singh (Supra) judgment. In the very same

judgment it was observed that it would naturally be difficult to lay down

any hard and fast rule as to the time which should not be allowed to an

accused person in any given case. In this context speaking generally,

requirement of 24 hour reflection time to accused was laid down.

Regard may also be had to the judgments of the Hon‘ble Supreme Court

in the case of Shankaria v. State of Rajasthan reported as (1978) 4

SCC 453 and Sidharth v. State of Bihar reported as (2005) 12 SCC

545 wherein while taking into consideration the judgment in Sarwan


120

Singh (supra), the Apex Court acted upon the Judicial Confession which

was recorded in less than 24 hours reflection time. Reliance is also

placed on the observations of the Division Bench of the Calcutta High

Court in the Judgment of Subodh Kumar Dhar Ray and Others v.

State on first Information report of Rajendra Lal Das reported as

1966 Cri.L.J 323. The said cases unequivocally evince that the judicial

confession may be held to be voluntary and safely acted upon by the

court even if less than 24 hours reflection time is provided to the

accused.

116. The learned Magistrate had the invaluable

opportunity of observing the demeanour of the accused and he

meticulously satisfied himself of the voluntariness of the accused in

making the confession. He made the accused sit in his chamber,

insulated from any potential duress or influence of the officials of the

CBI. The Learned Magistrate put various questions to Rajan Tiwari and

administered the statutory warnings contemplated under section 164

Cr.P.C. before undertaking the solemn act of recording the judicial

confession. Furthermore, it would be pertinent to highlight at this stage

that it is the consistent defence of Rajan Tiwari as evidenced from his

retraction statement dated 30.03.1999, cross examination of Learned

Magistrate- Gurdeep Saini (PW 59) and the section 313 statement of

Rajan Tiwari that the judicial confession has been fabricated by the


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Learned Magistrate in connivance with the CBI. It is not the case of the

accused Rajan Tiwari that he did not have sufficient time to make a

considered decision whether or not he must make an admission of guilt

before the Magistrate and therefore the confession should be excluded

from consideration as involuntary. In view of the categoric defence of

the accused that the confession was fabricated by the Judicial Officer in

connivance with CBI, the alleged paucity of time for reflection is of no

consequence as evidently no prejudice is suffered by the accused by the

alleged paucity of reflection time. Reliance is placed upon the judgment

of the Hon‘ble Supreme Court in its decision reported as (1999) 5 SCC

253 titled State V. Nalini .

117. It is respectfully submitted that due weight must be

attached to the satisfaction of the Learned Magistrate and the integrity of

the proceedings conducted by him. Section 114 (e) of The Indian

Evidence Act 1872 enjoins a presumption that may be drawn by the

court that all judicial and official acts are performed regularly. It is ex

facie implausible that a Judicial Officer of a different State who has no

axe to grind would oblige the CBI to foist a confession upon accused

Rajan Tiwari. It is humbly submitted that a serious note must be taken

of such flagrantly false assertions that are made at the instance of the

accused persons lightly with a view to escape the consequences of such

judicial confession in law. Reliance is placed upon the decision of the


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Hon‘ble Supreme Court reported as (2002) 5 SCC 234.

118. The appellants have laid challenge to the confession

on the premise that the appellant Rajan Tiwari was not remanded to

judicial custody after recording of confession and the right of the

accused to be remanded to judicial custody in case he refuses to make

confession was not informed to him by the Learned Magistrate

recording the confession. Reliance was placed upon the decision of the

Apex Court in Rabindra Kumar Pal @ Dara Singh v. Republic of

India reported as AIR 2011 SC 1436. It is respectfully submitted that in

the present case the Learned Magistrate after duly satisfying himself as

to the voluntariness of the confession and upon the insistence of the

accused recorded the confession. Since the accused voluntarily

proceeded to make the confession, the question of remanding him to

judicial custody did not arise in view of the express and unambiguous

mandate of section 164(3) of Cr.P.C. No requirement is envisaged under

section 164(3) to inform the accused at the outset that if he chooses not

to make the confession he would be sent to judicial custody. The

accused must beforehand only be warned in terms of section 164(2) that

he is not bound to make a confession and that, if he does so, it may be

used as evidence against him. It is therefore respectfully submitted that

no fault can be attributed to the approach adopted by the Learned

Magistrate while recording the confession. It is respectfully submitted


123

that the judgment of the Apex Court in- Dara Singh (supra) in para 29

lays down guidelines on the aspect of recording judicial confessions and

it would be pertinent to note that the Hon‘ble Judges in their wisdom

have consciously not laid down any requirement therein that the accused

must be explained beforehand that he would be remanded to judicial

custody if he chooses not to make the confession and neither any

requirement of obtaining signatures of the accused on each page of the

confessional statement has been adumbrated. A careful analysis of the

said judgment reveals that for host of reasons cumulatively the Hon‘ble

High Court had refused to act upon the judicial confession made by

accused persons and the Hon‘ble Supreme Court affirmed the view

taken by the High Court in ultimate analysis rather than endorsing each

reason individually and tendering a finding thereon. It would also be

noteworthy that in the said case the fundamental requirement of

administering the warning that the confession may be used in evidence

against the accused was not even complied by the court which goes at

the root of the matter and coupled with other circumstances the High

Court discarded the confession.

119. It was further contended on behalf of the appellants

that the confession of accused Rajan Tiwari was not noted by the

Learned Magistrate in question answer form but in a mere narrative

which falls foul of the requirement of law. It is respectfully submitted


124

that a conjoint reading of section 164 Cr.P.C. and section 281 of Cr.P.C.

unequivocally evinces that questions are required to be reproduced in

the record only if asked to the accused. The sublime philosophy being

that answers tendered by the accused would be better appreciated in

light of the question asked by the court. In the present case, record

palpably reveals that series of questions were asked by the Learned

Metropolitan Magistrate to Rajan Tiwari before recording the

confession and in order to ascertain and satisfy himself if the confession

was being made voluntarily. The said questions are duly recorded and

the entire proceedings were penned down by the Learned Magistrate in

his own handwriting. Merely because the accused Rajan Tiwari chose to

clearly and unambiguously narrate vividly the entire factual conspectus,

and no requirement was felt to ask any questions during the narration by

the accused, no fault can be found with the approach adopted by the

Learned Magistrate. Reliance is placed upon the judgments reported as

(1887) ILR 14 Cal. 539-Fekoo Mahto v. the Empress and

MANU/WB/0405/1977-Asoke Kumar Chakraborty v. State wherein

it has been held that confessions recorded in narrated form do not

become admissible and the accused must demonstrate prejudice.

120. It is respectfully submitted that even if the Hon‘ble

court is of the view that for any reason the Learned Magistrate did not

comply with any requirements envisaged under section 164 Cr.P.C. or


125

section 281 Cr.P.C., the confession would not automatically be

excluded from consideration in view of mandate of section 463 Cr.P.C.

As highlighted earlier since the defence of the accused Rajan Tiwari is

that of fabrication of confession by the judicial officer in connivance

with the CBI, no prejudice/injury to the defence on the merits is caused

by any instance of non-compliance alleged by the accused in the

present case. It would be relevant to note that the Hon‘ble Supreme

Court in its judgment reported as (1999)5 SCC 253- Nalini‘s case

(supra) has taken into account the mandate of section 463 Cr.P.C. to

uphold the judicial confession recorded in the matter. Reliance is also

placed upon the Nalini‘s case (Supra) to repel the contention advanced

on behalf of appellant that signatures of Rajan Tiwari were not taken on

3 pages of the confession. In this regard it would be pertinent to

reproduce the relevant paragraphs of the aforesaid judgment in Nalini‘s

case (Supra) for the perusal of this Hon‘ble Court which in no uncertain

terms brings forth the legal position as aforementioned.

“402. It is unnecessary to refer to the provisions of Section 281

of the Code as it is not disputed that otherwise the confessions

of the accused have been properly recorded. Contention in the

case of Nalini (A-1) is that the mandatory provisions of Rule

15(3) have been violated as it is not signed by Nalini (A-1)

whose signatures are required at the end of the confession. It


126

was thus submitted that since the confession does not bear the

signatures of Nalini (A-1) it could not be said to be a valid

confession. It is important that the accused signs the confession

at the end. In that way he comprehends that he has made

confession. Confession of Nalini (A-1), it was submitted, has to

be rejected in its entirety. Confession is said to be in 18 pages

out of which only pp. 1 to 16 bear her signatures while pp. 17

and 18, which are crucial to the confession, do not bear her

signatures…

…. The High Court said that this omission cannot be cured by

examining the Magistrate under Section 463 of the Code.

Section 463 of the Code is as under:

“463. Non-compliance with provisions of Section 164 or

Section 281.-(1) If any court before which a confession or other

statement of an accused person recorded, or purporting to be

recorded under Section 164 or Section 281, is tendered, or has

been received, in evidence finds that any of the provisions of

either of such sections have not been complied with by the

Magistrate recording the statement, it may, notwithstanding

anything contained in Section 91 of the Indian Evidence Act,

1872 (1 of 1872), take evidence in regard to such non-

compliance, and may, if satisfied that such non-compliance has


127

not injured the accused in his defence on the merits and that he

duly made the statement recorded, admit such statement.

(2) The provisions of this section apply to Courts of Appeal,

reference and revision.”…

404…..There could certainly be a human error but that would

not mean that Section 463 of the Code becomes inapplicable.

Mr Natarajan is correct in his submission that when the

requirement of law is that confession should be signed by the

person making it, it would mean his signatures at the end of

the confession. What Section 463 requires is that evidence

could be led of police officer recording the confession as to

why provisions of Rule 15(3) could not be complied with while

recording the confession. It has not been suggested or brought

on record as to how not getting signatures of Nalini (A-1) on

the last pages of the confession has injured her in her defence

on the merits of the case. The confession has been

corroborated in material particulars by means of an

independent evidence even if the confessions of the co-accused

are set apart. Confession of Nalini (A-1) was recorded on 7-8-

1991 and was sent to the Court of the Chief Judicial

Magistrate on the following day and on 9-8-1991 it was sent to

the Designated Court. We find that the confession was duly


128

made, which was recorded by V. Thiagarajan (PW 52). We

are, therefore, inclined to admit the confession of Nalini (A-1)

overruling the objection that Rule 15(3) of the TADA Rules has

been violated.” (emphasis supplied by learned counsel for the

CBI)

121. It is respectfully submitted that even otherwise on

first principle the contention of the appellants is misplaced as there is no

requirement under section 164 Cr.P.C. to get signatures of the accused

on each page of the statement. In the present case the Learned

Magistrate took the signatures of the accused after recording his

satisfaction as to the voluntariness of the confession that was arrived at

after preliminary questioning of the accused and at the foot of the

confession. In this light it would also be instructive to place reliance

upon the Delhi High Court Rules which deal with recording

confessional statement of accused persons. Perusal of the same also

indicates that signature of accused on each page is not required.

5. Form prescribed for recording confessions- the

annexed form for recording confessions taken under Section 164

has been prescribed and should invariably be used.

xxxxxxxxxxxxx

Record of a Confession made by an Accused Person

(Section 164 of the Code of Criminal Procedure)


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…………………………Division

In the Court of ……………………………………

The State

Versus

The confession………………of……………taken by me.

…………a *Magistrate of the ..

………….District, this ……….day of …….19……….

Memorandum of Enquiry

(The Magistrate shall first, as required by Section 164(3),

Code of Criminal Procedure, explain to the accused person that he is

not bound to make a confession, and that if he does so, it may be used

as evidence against him and shall then put and record answers to the

following questions. If the answers are of such a character as to require

him to do so, he should put such further questions as may be necessary

to enable him to judge whether the accused person is acting voluntarily.

In arriving at his conclusion on this point the Magistrate should

consider inter alia the period during which the accused person has been

in Police custody and make sure that the confession is not the result of

any undue influence of ill treatment. Special care should be taken when

women or children are produced by the Police for their confessions

being recorded).

Q.- Do you understand that you are not bound to make a


130

confession?

A-

Q.- Do you understand that your statement is being recorded

by a Magistrate, and that if you make a confession, it may be used as

evidence against you?

A-

Q.- Understanding these two facts, are you making a

statement before me voluntarily?

A-

Statement of accused

(Make of signature of accused).

*Magistrate.

I have explained to ………… that he is not bound to make a

confession, and that if he does so, any confession he may make may be

used as evidence against him and I believe that this confession was

voluntarily made. It was taken in my presence and hearing, and was

read over to the person making it, and admitted by him to be correct,

and it contains a full and true account of the statement made by him.

*Magistrate.

Dated………

xxxxxxxxxx

The contention advanced on behalf of the appellant that the


131

judicial confession was produced by the CBI before the court and

therefore the possibility of tampering cannot be ruled out, especially in

absence of signatures of accused on each page, is liable to be rejected

as the Learned Magistrate has recorded the confession in his own

handwriting and has supported the document in witness-box. If the CBI

would have tampered the confession, the Learned Magistrate would

have highlighted the same in his deposition and not proved the

document.

122. It is submitted on behalf of the appellants that no

judicial record/order with regard to police custody of accused Rajan

Tiwari being entrusted to the CBI is available on the record and

therefore the custody of CBI was illegal and the judicial confession

recorded during the said period of custody is liable to be excluded. It is

respectfully submitted that appellant Rajan Tiwari himself annexed in

Criminal Miscellaneous No. 10646/2003 before the Hon‘ble Patna

High Court, photocopy of the remand petition dated 13.02.1999 and

photocopy of order passed thereon by the Learned Duty Metropolitan

Magistrate-New Delhi. He also filed the aforesaid remand petition in

Criminal Miscellaneous No. 27008/2000 before Patna High Court.

Furthermore, Rajesh Ranjan @ Pappu Yadav himself annexed the true

copy of the remand petition as ANNEXURE P3 before Hon‘ble

Supreme Court of India in SLP (Crl.) No. 4018/1999. Therefore, it is


132

evident that the said order was into existence and available on Judicial

record. The appellants have raised this mischievous submission

wittingly concealing from this Hon‘ble Court the material fact that they

themselves had annexed the said judicial orders as well as the

application moved by CBI on 13.02.1999 in support of their petition

and are attempting to play fraud upon the court. It is respectfully

submitted that even if the original record of the said orders is not

traceable, the same cannot be construed to mean that the order of

remand of Rajan Tiwari in favour of CBI never existed. This Hon‘ble

Court is entitled to draw the necessary inference in terms of Section

114 Indian Evidence Act as to who would be the beneficiary in case of

disappearance of the said judicial record and therefore who would have

orchestrated the disappearance of the same. Furthermore, if the

appellant Rajan Tiwari would have been in illegal custody of CBI a

habeas corpus would have been filed or any complaint in this regard

would have been contemporaneously lodged. In fact, even on 23-02-

1999 father of appellant Rajan Tiwari who was a lawyer himself moved

a mischievous application which was withdrawn that his son Manish

Tiwari was arrested and that he was not Rajan Tiwari as claimed by

CBI. However, it was never contended that police custody was not

taken in furtherance of a valid remand order by the CBI. Significantly,

the applicant raised objection to further/extension of remand to Police


133

Custody and has expressly acknowledged in para 3 therein that the

Police Remand was taken from the Duty Magistrate on holiday.

Reliance is placed upon the decision of the Hon‘ble Supreme Court in

its judgment reported as (2011) 10 SCC 445-Pragyna Singh Thakur

v. State of Maharashtra wherein it was held that when the objection

of illegality of custody was not taken at the earliest opportunity, the

same would not be believed.

123. Learned counsel for the C.B.I. next submitted that

retraction made by Rajan Tiwary under first undated application

forwarded to the C.M.M., Delhi by Deputy Superintendent, Central Jail

No. 5, Tihar, New Delhi under letter no.181 dated 1.3.1999, subsequent

retraction made on 30.3.1999 and the third retraction petition dated

21.4.1999 is required to be rejected as this court is required to look for

the reasons for making of the confession as well as for its retraction and

after weighing the two to determine whether the retraction affects the

voluntary nature of the confession. In the instant case, Rajan Tiwary

having not furnished reasons for retraction his confession earlier made is

reliable; the retraction made by him is fit to be rejected. Privy Council

once observed, in India it is a rule to record the confession and to find it

retracted later. Reliance in this connection was placed on the judgment

of the Supreme Court in the case of Bharat Vs. State of U.P., (1971) 3

SCC 950, paragraph 7 and State of T.N. Vs. Kutti alias Lakshmi


134

Narasimhan, (2001) 6 SCC 550, paragraph 13.

124. Learned counsel for the C.B.I. placing reliance on the

judgment of the Supreme Court in the case of Devender Pal Singh Vs.

State of NCT of Delhi and Another, (2002) 5 SCC 234, paragraph 37

submitted that Rajan Tiwary recorded his confessional statement after

P.W. 59 was satisfied that Rajan Tiwary wanted to record his

confessional statement on his own without there being any pressure from

the C.B.I. or any other quarter and it was his voluntary desire to make

confessional statement as he wanted to improve himself. There is

statutory presumption under Section 114(e) of the Evidence Act that

when an official act is proved to have been done it will be presumed to

have been regularly done and that being the legal position the retraction

made without giving any cogent reason is required to be rejected. In this

connection, learned counsel for the C.B.I. also referred to the answers

given by Rajan Tiwary to question nos. 6, 7, 8 posed to him during his

examination under Section 313 Cr.P.C. and submitted that Rajan Tiwary

having not himself referred to the retraction while giving answer to

question nos. 7, 8, the same cannot be relied upon. In this connection, he

also pointed out that Rajan Tiwary got recorded his confession on

22.2.1999 when he did not make any complaint about torture in the

C.B.I. custody. He also did not make such complaint on 23.2.1999 when

he was produced by the C.B.I. for being remanded to judicial custody


135

and then again on 9.3.1999 when he came from judicial custody and

again remanded in the same custody, as such, retraction on the ground of

torture in police custody under first undated application which was

forwarded to the C.M.M., Delhi under letter no.181 dated 1.3.1999 is fit

to be rejected.

125. With reference to the judgment of the Supreme Court

in the case of Pragyna Singh Thakur, (2011) 10 SCC 445,

paragraphs 25, 27 learned counsel for the C.B.I. submitted that

complain about the police torture is required to be made by the accused

before the Magistrate at the first instance and not belatedly. He further

submitted with reference to the first undated retraction application of

Rajan Tiwary that from close perusal of said retraction application it

would appear that Rajan Tiwary was apprehending his remand in Kabi

Nagar(Gaziabad) P.S. Case No.626/98 registered for the offence under

Section 302 I.P.C. and to ensure that he is not remanded in the said case

and subjected to police torture and encounter he filed undated retraction

application which does not affect the merit and genuineness of the

confession made by him before P.W. 59 on 22.2.1999.

Belated retraction of judicial confession.

126. Submission made in paragraphs 78 to 80 was further

reiterated by filing written submission stating that the judicial

confession made by accused accused Rajan Tiwari was retracted


136

belatedly after a period of more than one month from Beur jail in Bihar.

The confession was recorded before the Learned Magistrate on 22-02-

1999. Thereafter, accused Rajan Tiwari was produced before the

Learned Chief Metropolitan Magistrate, New Delhi on 23-02-1999

when he was remanded to judicial custody. On 09-03-1999 the accused

Rajan Tiwari was produced from judicial custody before the Court of

Learned Chief Metropolitan Magistrate- R.K. Gauba with his advocate-

Shri S.A. Hashmi, yet no retraction was made. It was only on 30-03-

1999 that accused Rajan Tiwari made retraction by means of a letter

sent from jail. It is respectfully submitted that as highlighted in the

preceding section that the version of the accused Rajan Tiwari that the

judicial officer connived with CBI to fabricate the confession is ex

facie unworthy of credit. The retraction which is belated in time and the

inherently implausible version contained therein is not worth the piece

of paper on which it is scribed, is not only liable to be ignored but is

also a tell-tale mark of voluntariness of the confession which was later

sought to be retracted, perhaps under the pressure of the co-accused

Rajesh Ranjan @ Pappu Yadav; who demonstrably exercised lot of

influence even inside jail in Bihar as is evident from various orders of

the Hon‘ble Supreme Court leading to his transfer to Tihar Jail- New

Delhi. The Hon‘ble Supreme Court in its judgment reported as (1971) 3

SCC 950 and (2001) 6 SCC 550 has extensively laid down the law


137

with regard to retraction. With regard to the reliance placed by the

Learned Counsel for the Appellant Rajesh Ranjan @ Pappu Yadav

upon the letter dated 01-03-1999 sent by accused Rajan Tiwari as his

earliest statement of retraction, suffice would it be to state that bare

perusal of the said letter unequivocally evinces that allegations

comprised therein are confined to alleged torture by Delhi Police to

extract disclosure in case F.I.R. No. 122/99 P.S R.K. Puram alleging

torture by Delhi Police and not against officials of C.B.I to procure any

confession under section 164 before Judicial Magistrate with regard to

Ajit Sarkar case murder case. Therefore it assumes significance that

appellant Rajan Tiwari in his retraction statement dated 30-03-1999 did

not make any cross-reference to any previous retraction on 01-03-1999

as the same was obviously not in relation to Ajit Sarkar murder case. It

would also be pertinent to note that the memorandum of appeal filed on

behalf of Appellant Rajan Tiwari also does not refer to any retraction

dated 01-03-1999 which also fortifies the contention advanced on

behalf of C.B.I that the first retraction was made on 30-03-1999 with

regard to Ajit Sarkar murder case and the retraction dated 01-03-1999

was with regard to disclosure statement to the Delhi Police in case F.IR

No. 122/99 P.S. R.K. Puram.

Availability of corroboration to the judicial confession in material

aspects leading to assurance of its truthfulness.


138

127. Counsel for the C.B.I. also relied on the judgment of

the Supreme Court in the case of Lokeman Shah Vs. State of West

Bengal, (2001) 5 SCC 235, paragraph 13 to impress upon this Court

the degree of corroboration which is required to prove the material

particulars of confessional statement and submitted that the ocular

evidence of P.Ws. 8, 9, 10 and the call details, Ext. 3 series together with

photograph, material Ext. VII is quite sufficient to prove not only the

association of Rajesh Ranjan @ Pappu Yadav with Rajan Tiwary but

also hatching of conspiracy by Rajesh Ranjan @ Pappu Yadav and co-

accused but also its execution by them.

128. Learned counsel submitted that in the preceding

paragraphs of the written submissions it has been demonstrated that the

judicial confession of appellant Rajan Tiwari was voluntary in nature.

The other vital pre-requisite before acting upon a judicial confession is

that of his truthfulness and the same can be adjudged in the present case

by the ample corroboration available on record in form of eyewitness

account of PW 8, PW 9 and PW 10(whose version is also corroborated

by testimony of PW – 15 & PW- 16), scientific evidence of ballistic

experts (PW-28 & P.W.-33) to the effect that AK-47 was used in the

commission of offence, pointing out of various relevant spots by Rajan

Tiwari, call detail records, recovery of photograph (material Exhibit 7)

of appellant Rajan Tiwari from the house of appellant Rajesh Ranjan @


139

Pappu Yadav, motive of appellant Rajesh Ranjan @ Pappu Yadav to do

away with Ajit Sarkar as evinced from his proclamations at public

gathering and recovery of the two motor cycles used in commission of

offence. It is respectfully submitted that the Hon‘ble Supreme Court has

since time immemorial consistently held that corroboration is only a

mere rule of prudence which has not crystallized into rule of law of

universal acceptance, therefore, the court may act upon the judicial

confession even without corroboration, if the same is found to be

voluntary and truthful. However, when the said confession is retracted,

which inevitably happens in every criminal case, the court may seek

some corroboration only as a matter of caution before acting upon it

against the maker. The Hon‘ble Supreme Court has pertinently lodged a

caveat that the corroboration need not be on every aspect but

corroboration on material aspects would suffice. In the present case, as

highlighted above there is ample corroboration available on record and

therefore the court can safely act upon it. It has been contended on

behalf of the appellants that the weapons used in the commission of

offence were not recovered by the investigation agency and the same

seriously impinges the credibility of the case projected by the

prosecution. In this regard it would be profitable to press into service the

observations of the Hon‘ble Supreme Court in its decision reported as

Umar Mohammad Vs. State of Rajasthan, (2007) 14 SCC 711 wherein


140

it has been held that where direct evidence in form of testimony of eye

witnesses is believable non-recovery of weapons used in commission of

offence would pale into insignificance.

129. It has also been contended on behalf of the appellants

that the motor cycles used in commission of offence though claimed to

have been recovered by CBI have not been produced before the

Learned Trial Court and therefore, the said circumstance cannot be

proved in accordance with law. It is respectfully submitted that the

seizure memos of the recovery of the said motor cycles has been duly

proved by the Investigating Officer and relevant witnesses have proved

the factum of its recovery in their depositions. Even the accused

persons put the circumstance of recovery of motor cycles in their

examination under section 313 Cr.P.C. and therefore, it is not the case

that the accused persons were not aware of the factum of such recovery.

With regard to the contention that it was not produced before the

Learned Trial Court, it would be beneficial to recount the observations

of the Hon‘ble High Court of Punjab & Haryana in its judgment titled

Balraj Singh v. State of Punjab reported as 1982 Cri.L.J. 1374. It was

observed that-

“…Whether the non-production of a part or the whole of the

case property in a criminal trial, would by itself, vitiate the

conviction of the accused thereafter is the somewhat


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meaningful issue which has necessitated this reference to the

Division Bench….

….When the aforesaid section 451 of the code itself positively

visualizes and sanctifies the non-production of case property

in the trial can it then reason-ably be said that a mere

inadvertence or omission in producing the same and not

exhibiting it in court would per se be fatal to the prosecution

case. I do not think so. No principle could be cited before us

which would show that the mere exhibition of the case

property was so pivotal a thing that the failure to do so

would take the very bottom out of a criminal prosecution….

But in the ultimate analysis the issue is one of the prejudice

caused to the accused and any failure of justice resulting

there from. In this context the question whether such an

objection could be, but has not been raised at the earliest

stage of trial is of considerable relevance. In a case of

innocent or inadvertent non-production of the case property

material prejudice is to be shown by the accused in order to

claim the vitiation of the conviction. No abstract or absolute

rule that “no case property, no conviction,” can possibly be

raised to the pedestal of a rule of law, because this by itself is

likely to occasion a failure of justice. As has been said earlier


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the substantial issues in a criminal trial like the proof and

punishment of crime should not be converted into a plaything

of technicalities. If the prosecution has innocently or

inadvertently failed to exhibit the case property, yet the

accused even though fully represented by counsel makes no

objection or grievance thereof at the time of the trial, it

would hardly lie in his mouth at the revisional stage to say

that all the proceedings stand vitiated even though connived

at or wholly condoned by his own conduct.”

It is respectfully submitted that as per instructions dated

18.02.1999, the said motorcycles are still presently lying at P.S. K Hat,

Purnea in running condition. The position of law with regard to use of a

confession of a co-accused against another accused is materially

different and is governed by section 30 of the Indian Evidence Act. It

has been held by the Hon‘ble Supreme Court that the court must not

start with the confession of co-accused and rather the correct approach

would be to marshal other evidence independent of the confession and

if the court is not prepare to act upon it for any reason then the

confession of the co-accused may be taken into account as a

circumstance/material (not as evidence in the technical sense) in light

of which the other evidence can be appreciated and after taking such

confession of co-accused into account, the court may feel impelled to


143

act upon the other evidence and render a finding of guilt.

The above principles of law with regard to use of a confession

against its maker and its limited use against the co-accused can be

gathered from a conjoint reading of the following judgments of the

Apex Court- (2001) 5 SCC 235 & (2003) 10 SCC 586.

Challenge to constitutional validity of section 30

Indian Evidence Act, 1872.

130. During the course of hearing, it has been contended by

counsel on behalf of appellant-Rajesh Ranjan @ Pappu Yadav, that

section 30 of the Indian Evidence Act is unconstitutional and is liable to

be read down. The Learned Counsel placed reliance on the observations

of the 69th

report of the Law Commission of India on the Indian

Evidence Act, 1872 at page 225 under the chairmanship of Hon‘ble Mr.

Justice P.B. Gajendra Gadkar wherein it was recommended that present

section 30 of the Indian Evidence Act should be repealed.

At the outset it is respectfully submitted that challenge to the

vires of a statue must be made by preferring appropriate proceeding i.e.

writ petition under Article 226 of Constitution of India and not in a

criminal appeal wherein this Hon‘ble Court exercises power in terms of

section 374 of Cr.P.C. It would also be relevant to note that no such

ground has been taken in the memorandum of appeal and leave of the

court was not taken to amend the said memorandum of appeal for


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raising additional grounds.

With regard to the merits of the submission, it is respectfully

submitted that the Hon‘ble Supreme Court in Kartar Singh’s Case

(Supra) upheld the constitutional validity of Section 15 of TADA

which makes confession of co-accused recorded before a police officer

not lower in rank of Superintendent of Police, admissible against the

accused. It would also be relevant to highlight that in Paragraphs 210,

211 and 215 of the said judgment the Hon‘ble Supreme Court held the

existing statutory provisions of Cr.P.C. and the Indian Evidence Act,

including section 30 thereof, to be in consonance with spirit of the

Constitution. It is humbly submitted that there is a strong presumption

of constitutionality of a statue and the burden is cast upon the party

who makes the challenge. It is a trite proposition of law that ordinarily

the Courts would attach due weight to the collective wisdom of the

legislature which is manifested in form of the statue. Reliance is placed

upon the recent judgment of the Apex Court in State of M.P. v.

Rakesh Kohli reported as (2012) 6 SCC 312.

It is submitted with deepest respect that the observations of

the Law Commission of India are only recommendatory in nature and

exclusively premised upon the same the constitutional validity of a

provision cannot be successfully assailed, especially when the

Constitution Bench in Kartar Singh case (supra) has found the said


145

provision to be in consonance with the spirit of the Constitution. The

Legislature has till recent years introduced vast amendments in the

framework of Criminal Law but has evidently chosen not to accept the

said recommendation of the 69th

Report of the Law Commission in its

collective wisdom.

In view of the above it is clear that the contention challenging

the vires of the section 30 of the Indian Evidence Act or alternatively

reading it down is liable to be rejected.

131. Learned counsel for the C.B.I. next referred to the

photograph, material Ext. VII and submitted that the photograph is also a

link to corroborate the confession made by Rajan Tiwary as from the

photograph it is quite evident that after executing conspiracy hatched by

Rajesh Ranjan @ Pappu Yadav Rajan Tiwary came to Delhi and resided

in the flat of Rajesh Ranjan @ Pappu Yadav and then moved along with

Rajesh Ranjan @ Pappu Yadav, his wife and child to Vaishno Devi,

Srinagar and other places, which is quite evident from the photograph as

therein he has been seen with Rajesh Ranjan @ Pappu Yadav, his wife

and child at a tourist hilly place. In this connection, learned counsel for

the C.B.I. also referred to Section 313 Cr.P.C. examination of appellant

Rajesh Ranjan @ Pappu Yadav and submitted that from the answers

rendered by appellant Rajesh Ranjan @ Pappu Yadav it would be quite

evident that he is feigning ignorance of his association with Rajan


146

Tiwary and the confession recorded by him, which would be evident

from answers given by Rajesh Ranjan @ Pappu Yadav to question nos.

6, 8, 10, 11 and 19.

132. Learned counsel submitted that reliance placed by the

counsel for the appellant Rajesh Ranjan @ Pappu Yadav over paragraph

1 of the judgment of the Supreme Court in the case of

Machhandar(supra) is misconceived as in the said judgment of the

Supreme Court the accused was not given opportunity to explain the

contents of the confessional statement, which would be evident from

paragraph 17 of the said judgment. In the instant case, appellant Rajesh

Ranjan @ Pappu Yadav was given opportunity to explain the materials

appearing against him i.e. confessional statement (Ext. 35), call details

Ext. 3 series and photograph material Ext. VII, which is evident from

question nos. 6, 8, 9, 10, 11 and 19 put to him. Learned counsel stated

that when Rajesh Ranjan @ Pappu Yadav was put question no. 19 he

was shown photograph, material Ext. VII but from the answer given by

Rajesh Ranjan @ Pappu Yadav to the said question, it would appear that

he has not only evaded the question but has given false answer to

question no.19. He further submitted that question nos. 16, 17 have been

put to appellant Rajesh Ranjan @ Pappu Yadav so as to give him

opportunity to explain the call details, Ext. 3 series. Reliance in this

connection is placed over the judgment of the Supreme Court in the case


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of Joseph S/O Koobeli Poulo Vs. State of Kerala, (2000) 5 SCC 197,

paragraphs 10, 12, 14.

133. Learned counsel for the C.B.I. further reinforced his

submission by submitting that objection with regard to the defective

recording of the statement under Section 313 Cr.P.C. is required to be

taken at the trial stage itself and not in appeal. Appellant Rajesh Ranjan

@ Pappu Yadav having not raised the question of defective recording of

statement under Section 313 Cr.P.C. at the trial stage he is required to

indicate the prejudice caused to him while recording his statement under

Section 313 Cr.P.C. To buttress the aforesaid submission learned

counsel referred to the judgment of the Supreme Court in the case of

Satyavir Singh Rathi, ACP and others Vs. State through Central

Bureau of Investigation, (2011) 6 SCC 1, paragraphs 76, 77, 78 and

submitted that counsel for the appellant having not pointed out any

prejudice caused to the appellant Rajesh Ranjan @ Pappu Yadav while

recording his 313 Cr.P.C. statement, the submission that error was

committed while recording 313 Cr.P.C. statement is required to be

ignored.

Effect of not showing material objects/Exhibits to the accused

while recording statement under section 313 Cr.P.C.

134. Learned counsel for C.B.I. reiterated his submission

made in above paragraphs and contended on behalf of appellant-


148

Rajesh Ranjan @ Pappu Yadav that the photograph (Material Exhibit

7) alleged to have been recovered by the CBI from his premises on

17.02.99 was not shown to him during questioning under Section 313

Cr.P.C, which is required under law. To buttress the said submission

reliance was placed upon the judgment of the Hon‘ble Supreme Court

in Machander v. The State of Hyderabad reported as AIR 1955 SC

792. It is respectfully further submitted that there is no requirement in

law that the object/case property must mandatorily be shown to the

accused during questioning under Section 313 Cr.P.C. Bare perusal of

the said provision unequivocally evinces that the Court is required to

question the accused generally on the case with a view to enable the

accused to explain circumstances appearing in evidence against him.

As palpably evident there is no hard and fast rule envisaged under the

provision that the attention of the accused must specifically be drawn

by producing each case property before him during questioning. It

would also be relevant to note that copy of all the material relied by

the prosecution along with the final report in terms of Section 173

Cr.P.C. is served in advance to the accused person under Section 207

Cr.P.C before committal before Court of Sessions. Furthermore, each

document/object is specifically produced before the Court in presence

of the accused at the time of deposition of the relevant witness for the

purpose of being marked in evidence, as in the present case when the


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said photograph was exhibited in evidence by PW-61, Dy. S.P. N. S.

Kharayat on 19.08.2006 in presence of accused Rajesh Ranjan @

Pappu Yadav who was connected through video conferencing from

Tihar Jail in Delhi. Therefore, it is clear that the appellant Rajesh

Ranjan @ Pappu Yadav was well aware of the subject matter of

questioning i.e. the photograph of himself and his family with Rajan

Tiwari and therefore, there is no prejudice which has occasioned. In

this regard it would also be significant that the accused Rajesh Ranjan

@ Pappu Yadav was represented by a battery of competent lawyers

and if the accused would not have been sure of the photograph referred

by the Court while questioning him, objection to this effect would

have been moved before the Learned Trial Court sooner or later. The

said allegation has been coined for the first time before the appellate

Court and in view of the authoritative pronouncement of the Hon‘ble

Supreme Court in Satyavir Singh Rathi V. State through CBI

reported in (2011) 6 SCC 1 as the said argument deserves to be

rejected as such. Interestingly, the Hon‘ble Supreme Court in the case

of Machander (supra) has nowhere laid down any requirement for

producing material objects during questioning in terms of Section 313

Cr.P.C, rather it was a case of omission on part of the Court to

question the accused with regard to the judicial confession alleged to

have been made by him. The Hon‘ble Supreme Court affirmed the


150

finding of the Hon‘ble High Court that the said confession was

required to be jettisoned from consideration as the accused was not

questioned with regard to the same and the Hon‘ble High Court was of

the opinion that prejudice had occasioned to the accused. As

highlighted earlier the present case is not a case of omission to

question with regard to a circumstance appearing in evidence against

the accused and therefore, the reliance on judgment in Machander‘s

case (supra) is misconceived.

Absence of certificate under section 65 – B Indian Evidence Act,

1872 not fatal to prosecution.

135. Counsel for the C.B.I. next submitted that from the call

details, Ext. 3 series it would appear that on 14.6.1998 at 9.58 A.M.

Harish Chaudhary made Rajan Tiwary speak to Rajesh Ranjan @ Pappu

Yadav from telephone no. 23929 installed at the Purnea residence of

Rajesh Ranjan @ Pappu Yadav to his Delhi telephone no.3730767

subscribed in his name. It would further appear from the call details that

two calls were made from Katihar P.C.O. No.34679 of 42, 32 seconds

duration at 18 hours 16 minutes 48 seconds and 18 hours 18 minutes 16

seconds at Delhi residence of appellant Rajesh Ranjan @ Pappu Yadav

on telephone no.3730767 and 3736358 subscribed in the name of his

wife. From same telephone booth another call of 1 minute 26 second

duration was made at 20 hours 8 minute 41 second on telephone


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no.0551322035 which is the telephone installed at Gorakhpur residence

of appellant Rajan Tiwary. The call details have been obtained under the

signature of Ramashray Rajak, Sub-Divisional Engineer, Telecom, P.W.

6 and is admissible in evidence in view of his deposition and the

deposition of Om Prakash Ramnani, P.W. 52 the husband of telephone

booth owner as no suggestion was put to these two witnesses touching

the authenticity of the call records or the possible tampering with the

entries. In this connection, he also referred to Sub-Section (2) of Section

63 and Sub-Clause-(4) of Section 65B of the Evidence Act and

submitted with reference to the judgment of the Supreme Court in the

case of State (N.C.T. of Delhi) Vs. Navjot Sandhu, AIR 2005

Supreme Court 3820, paragraph 15 that print outs taken from the

computers/servers by making process and certified by a responsible

officer of the service providing company can be led into evidence. Call

details will show that the appellant Rajan Tiwary was in touch with

Rajesh Ranjan @ Pappu Yadav before and after the occurrence which is

a very significant piece of evidence to corroborate the judicial

confession of Rajan Tiwary. Reliance in this connection is placed on the

judgment of the Supreme Court in the case of Sidhartha Vashisht @

Manu Sharma Vs. State (NCT of Delhi), (2010) 6 SCC 1, paragraph

225, 226 and it is submitted that call details so that Rajan Tiwary was in

touch with appellant Rajesh Ranjan @ Pappu Yadav soon after the


152

occurrence.

136. Learned counsel further reiterated the aforesaid

submission in his written submissions by stating that prosecution has not

produced certificate under Section 65-B Indian Evidence Act, 1872 in

support of the call records which are electronically generated documents

and therefore, they must be stamped as inadmissible and excluded from

consideration. It was further submitted that officials (PW 6, PW 11 &

PW 12) who proved the said documents before Court were not technical

experts and this infirmity warranted exclusion of such evidence. The

answer to the above contentions can be safely found in the judgment of

the Hon‘ble Supreme Court in State (NCT of Delhi) v. Navjot Sandhu

reported in AIR 2005 SC 3820 in Paragraph 15 @ page 3880 wherein

the Apex Court has held that mere non-production of certificate in terms

of Section 65-B does not preclude other means of proving the electronic

records such as examination of an official from the authority. Thus the

Hon‘ble Court went on to observe that there was no obligation upon the

prosecution to call upon a technical expert for examination in the first

instance and such an officer could be summoned if in facts and

circumstances of the case it was felt necessary by the accused. It would

be relevant to note that in the present case the appellants have not

disputed the factum of exchange of calls between the said telephone

numbers and have not challenged the genuineness of the records.


153

Rather, it is the case of Rajesh Ranjan @ Pappu Yadav that he spoke to

some persons other than Rajan Tiwari. Therefore, in light of the said

premises the argument of non-examination of technical expert loses its

sting and is liable to be rejected.

Credibility of eye witness account.

137. Learned counsel for the C.B.I. then relied on the

judgment of the Supreme Court in the case of Akbar and another Vs.

State, 2009 Cr.L.J. 4199, paragraph 49 and submitted the manner in

which ocular evidence has to be considered and appreciated by the court

in a murder case. While placing reliance on the evidence of Ranu Kumar

Singh, P.W. 19 paragraph 2 learned counsel for the C.B.I. with reference

to the judgment of the Supreme Court in the case of State of U.P. Vs.

Nahar Singh, 1998(3) SCC 561, paragraph 14 submitted that the

witness himself came to the place of occurrence after the crowd had

already collected, as such, it is possible that P.W. 19 could have seen

K.C. Sarkar after 45 minutes of his arrival. From the evidence of P.W.

19 it does not appear that P.Ws. 8, 9 and 10 have not come to the place

of occurrence soon after the occurrence.


D.W. 21 Madhumita Devi being the wife of Raj Kumar Yadav who

accompanied Rajan Tiwary on the first occasion when he had gone to

assassinate Ajit Sarkar as per confessional statement of Rajan Tiwary


154

being wholly interested witness should not be relied upon by this Court.

139. Learned counsel for the C.B.I. also submitted that for

the failure of P.Ws. 8, 9 and 10 to approach the local police within

reasonable time of the occurrence adverse inference is required to be

drawn against the appellants as to why the eye witness did not approach

the police for supporting the case or recording their version. Reliance in

this connection has been placed on the judgment of the Supreme Court

in the case of Gosu Jayarami Reddy and another Vs. State of Andhra

Pradesh, (2011) 11 SCC 766, paragraph 37.

140. The law with regard to appreciation of ocular

evidence of eye witnesses has been eruditely concatenated by Division

Bench of Hon‘ble High Court of Delhi in the matter titled Akbar v.

State reported in 2009 CriLJ 4199.

I While appreciating the evidence of a witness, the

approach must be whether the evidence of the witness read as a

whole appears to have a ring of truth. Once that impression is

formed, it is undoubtedly necessary for the Court to scrutinize

the evidence more particularly keeping in view the deficiencies,

drawbacks and infirmities pointed out in the evidence as a whole

and evaluate them to find out whether it is against the general

tenor of the evidence given by the witness and whether the

earlier evaluation of the evidence is shaken as to render it


155

unworthy of belief.

II If the Court before whom the witness gives evidence had the

opportunity to form the opinion about the general tenor of

evidence given by the witness, the appellate court which had not

this benefit will have to attach due weight to the appreciation of

evidence by the trial Court and unless there are reasons weighty

and formidable it would not be proper to reject the evidence on

the ground of minor variations or infirmities in the matter of

trivial details.

III When eye-witness is examined at length it is quite possible

for him to make some discrepancies. But courts should bear in

mind that it is only when discrepancies in the evidence of a

witness are so incompatible with the credibility of his version

that the Court is justified in jettisoning his evidence.

IV Minor discrepancies on trivial matters not touching the core

of the case, hyper technical approach by taking sentences torn

out of context here or there from the evidence, attaching

importance to some technical error committed by the

investigating officer not going to the root of the matter would not

ordinarily permit rejection of the evidence as a whole.

V Too serious a view to be adopted on mere variations falling

in the narration of an incident (either as between the evidence of


156

two witnesses or as between two statements of the same witness)

is an unrealistic approach for judicial scrutiny.

VI By and large a witness cannot be expected to possess a

photographic memory and to recall the details of an incident. It

is not as if a video tape is replayed on the mental screen.

VII Ordinarily it so happens that a witness is overtaken by

events. The witness could not have anticipated the occurrence

which so often has an element of surprise. The mental faculties

therefore cannot be expected to be attuned to absorb the details.

VIII The powers of observation differ from person to person.

What one may notice, another may not. An object or movement

might emboss its image on one person’s mind whereas it might

go unnoticed on the part of another.

IX By and large people cannot accurately recall a conversation

and reproduce the very words used by them or heard by them.

They can only recall the main purport of the conversation. It is

unrealistic to expect a witness to be a human tape recorder.

X In regard to exact time of an incident, or the time duration of

an occurrence, usually, people make their estimates by guess

work on the spur of the moment at the time of interrogation. And

one cannot expect people to make very precise or reliable

estimates in such matters. Again, it depends on the time-sense of


157

individuals which varies from person to person.

XI Ordinarily a witness cannot be expected to recall accurately

the sequence of events which take place in rapid succession or in

a short time span. A witness is liable to get confused, or mixed

up when interrogated later on.

XII A witness, though wholly truthful, is liable to be overawed

by the court atmosphere and the piercing cross examination by

counsel and out of nervousness mix up facts, get confused

regarding sequence of events, or fill up details from imagination

on the spur of the moment. The sub-conscious mind of the

witness sometimes so operates on account of the fear of looking

foolish or being disbelieved though the witness is giving a

truthful and honest account of the occurrence witnessed by him.

XIII A former statement though seemingly inconsistent with the

evidence need not necessarily be sufficient to amount to

contradiction. Unless the former statement has the potency to

discredit the later statement, even if the later statement is at

variance with the former to some extent it would not be helpful to

contradict that witness.

The said principles have been derived from the judgment of

the Hon‘ble Supreme Court in Leela Ram (Dead) through Duli

Chand v. State of Haryana & Anr. reported as (1999) 9 SCC 525,


158

Bharwada Bhoginbhai Hirjibhai v. State of Gujarat reported as

(1983) 3 SCC 217 and Tahsildar Singh and Anr. V. The State of

Uttar Pradesh reported as AIR 1959 SC 1012.

141. A peculiar feature of the instant case which is

palpably evident writ lage on the face of the record and even evidenced

from the orders of the Hon‘ble Supreme Court is that Rajesh Ranjan @

Pappu Yadav exercised tremendous influence in the region, in as much

as even the jail authorities and staff in the Learned Trial Court were

successfully influenced by the satanic web of his power. Twenty two

(22) witnesses in the case turned hostile and complaints were

frequently made before the court about the threats received by them. As

highlighted earlier, Kalyan Chandra Sarkar and other witnesses were

attacked in prison at the time of Test Identification Parade and a

separate case in that regard was also registered. The present case

illustratively depicts the deepest abyss of anarchy and collapse in

governance and it is in this light that the evidence of the instant case is

to be appreciated.

142. The Hon‘ble Supreme Court has since time

immemorial consistently held that realistic standards must be adopted

while evaluating evidence led by the prosecution. Exaggerated devotion

to the rule of benefit of doubt must not nature fanciful doubts or

lingering suspicion and thereby destroy the social defence. Justice


159

cannot be made sterile on the plea that it is better to let hundred guilty

escape than punishing innocent. Letting guilty escape is not doing

justice according to law. The Apex Court has cautioned that doubts

must be reasonable and not imaginary, trivial or mainly possible doubt

but a fair doubt based upon reason and common sense to result in

acquittal. The prosecution is not expected to answer every fanciful

hypothesis put forward by the accused (Gangadhar Behera & Ors. V.

State of Orissa reported as (2002) 8 SCC 381). A criminal trial is not

like a fairy tale wherein one is free to give fight to one‘s imagination

and fantasy. It concerns itself with the question as to whether the

accused arraigned at the trial is guilty of the crime with which he is

charged. Crime is an event in real life and is the product of interplay of

different human emotions. In arriving at the conclusion about the guilt

of the accused charged with the commission of a crime the court has to

judge the evidence by the yardstick of probabilities, its intrinsic worth

and the animus of witnesses. Every case in the final analysis would

have to depend upon its own facts. Although the benefit of every

reasonable doubt should be given to the accused, the accused, the

courts should not at the same time reject evidence which is ex-facie

trustworthy on grounds which are fanciful or in the nature of

conjectures. It has also been held that defective investigation cannot be

made as basis for acquitting the accused if despite such defects and


160

failures of the investigation, a case is made out against the accused

(State of U.P. v. Hari Mohan & Ors. Reported as (2000) 8 SCC 598.

Even in criminal cases prosecution need not prove its case with

absolute certainty and such utopian notion has been expressly rejected

(State of Maharashtra v. Mohd. Yakub & Ors. reported as (1980) 3

SCC 57). A Judge does not preside over a criminal trial merely to see

that no innocent man is punished. A judge also presides to see that a

guilty man does not escape. One is as important as the other. Both are

public duties which the judge has to perform (State of U.P. v. Anil

Singh reported as AIR 1988 SC 1998). While appreciating cases of

circumstantial evidence the Hon‘ble Supreme Court has pertinently

observed that individual circumstances considered in isolation and

divorced from the context of the overall picture emerging from a

consideration of the diverse circumstances and their conjoint effect may

be themselves appear innocuous. It is only when the various

circumstances are considered conjointly that it becomes possible to

understand and appreciate their true effect (Shaikh Sattar v. State of

Maharashtra reported as (2010) 8 SCC 430). It would be instructive to

refer to the profound observations of Hon‘ble Mr. Justice Krishna Iyer

in Inder Singh & Anr. Vs. the State (Delhi Administration)

reported as (1978) 4 SCC 161. It was observed-

“…..credibility of testimony, oral and circumstantial, depends


161

considerably on a judicial evaluation of the totality, not isolated

scrutiny. While it is necessary that proof beyond reasonable doubt

should be adduced in all criminal cases, it is not necessary that it

should be perfect. If a case is proved too perfectly, It is argued

that it is artificial; if a case has some flaws, inevitable because

human being are prone to err, it is argued that it is too imperfect.

One wonders whether in the meticulous hypersensitivity to

eliminate a rare innocent from being punished, many, guilty men

must be callously allowed to escape. Proof beyond reasonable

doubt is a guideline, not a fetish and guilty man cannot away with

it because truth suffers some infirmity when projected through

human process. Judicial quest for perfect proof accounts for

police presentation of foolproof concoction. Why fake up? Because

the court asks for manufacture to make truth look true? No, we

must be realistic.”

143. With regard to the criticism leveled by Learned

Counsel appearing on behalf of the appellants that the witnesses were

partisan as they belonged to different political factions i.e. CPI(M) and

that their testimony suffered from inherent infirmity, it is respectfully

submitted that the Hon‘ble Supreme Court has consistently held in a

catena of judgment that merely because eye witnesses belonged to rival

political party does not stamp their evidence ipso facto as


162

untrustworthy. In the present case, the sordid incident was witnessed by

Kalyan Chandra Sarkar, (PW-8) who was brother of deceased Ajit

Sarkar and admittedly he is not a member of CPI(M). There is no

suggestion to the witness that he had political ambitions against Rajesh

Ranjan @ Pappu Yadav and therefore he deposed falsely. The Hon‘ble

Supreme Court has observed that near relations of the deceased would

not falsely implicate innocent persons at the cost of letting the real

culprits escape punishment. Reliance is placed upon the decisions of

the Apex Court in Dalip Singh & Ors. v. The State of Punjab

reported as AIR 1953 SC 364; Bhupendra Singh v. State of Punjab

reported as AIR 1968 SC 1438. Evidence reveals that Kalyan Chandra

Sarkar (PW8) was retired from service and leading simple life of an

agriculturist who had no interest whatsoever in the political activities in

the region and no such suggestion has also been given to the said

witness. Reliance is placed upon the decisions of the Hon‘ble Supreme

Court in Gosu Jayarami Reddy and Anr. v. State of Andhra

Pradesh reported as (2011) 11 SCC 766; Gunnana Pentayya @

Pentadu & Ors. V. State of Andhra Pradesh reported as (2009) 16

SCC 59; Kilakkatha Parambath Sasi & Ors. v. State of Kerala

reported as (2011) 4 SCC 552. The said witness has clearly explained

his presence at the spot that he had come to visit his younger brother-

Ajit Sarkar MLA at Purnea from Ranipatra where he resided. It also


163

assumes significance that the said witness in his statement before the

CBI does not disclose the name of any assailant and merely describes

them. If it is respectfully submitted that if Kalyan Chandra Sarkar

(PW8) desired to falsely implicate Rajesh Ranjan @ Pappu Yadav and

his accomplices, he would have named them in his statement before the

Investigation Agency itself. The version of this witness stands

corroborated by the testimony of Madhusudan Rishi (PW9) and Lal

Bahadur Uraon (PW 10) who have also cogently explained their

presence at the house of the deceased and merely because they were

associated with CPI (M) cannot corrode the value of their evidence

which is otherwise consistent with the deposition of Kalyan Chandra

Sarkar (PW8) and other independent circumstances- testimony of PW

15 & PW 16, scientific evidence of ballistic experts (PW 28 & PW 33)

who opined that AK 47 was used in commission of offence, judicial

confession of accused Rajan Tiwari and recovery of two motor cycles

used in the commission of offence.

144. It was also strenuously contended on behalf of the

appellants that the eye witnesses turned volte face from their previous

version before the Bihar Police and after around five months projected

and entirely new version which itself destroys the credibility of their

evidence. It was further submitted that in the interregnum no tangible

efforts were made by the said witnesses to lodge a protest before Senior


164

Police Officials or the court against the alleged misdirection of

investigation by Bihar Police. It is respectfully submitted that the

witnesses when examined before the CBI stated that their signatures

were obtained by Bihar Police on 15.06.1998 and they did not read the

contents of the said document. It would also be relevant to note that the

copy of the FIR registered by PS K. Hat was not supplied to the

witnesses as required under section 154 of the Cr.P.C. and Rule 148 of

the Bihar Police Manual which requires endorsement of the informant

to be taken that he has received the copy of the said FIR. It also

assumes significance that the copy of the FIR was transmitted to the

court of Ilaqa Magistrate in terms of the requirement of section 157

Cr.P.C. only on 16.06.1998 although the local police claims to have

registered the FIR at 10 P.M. on 14.06.1998. A careful perusal of the

alleged fardbayan recorded by Bihar Police would reveal that on the

overleaf wherein the signature of Kalyan Chandra Sarkar (PW8) and

Lal Bahadur Uraoun (PW 10) are obtained by the local police, only the

names of the deceased is figuring and names of the assailants are on the

other side of the page. Therefore, the version of PW 8 & PW 10 is not

inherently incredible and in fact during the course of investigation their

version was found to be true upon the judicial confession of accused

Rajan Tiwari and evidence which was found subsequent thereto. It

would also be relevant to note that none of the witnesses were aware of


165

the name of Rajan Tiwari at the time of incident and during

investigation and all the said witnesses tendered description of Rajan

Tiwari in their respective statements. The particulars of Rajan Tiwari

could be deciphered by the CBI only upon his arrest and consequent

disclosure before Delhi Police in case FIR No. 122/99 P.S. R.K. Puram

wherein he confessed his involvement in the Ajit Sarkar murder case. It

is also respectfully submitted that immediately after the incident, on

16.06.1998 the State Government was pleased to appoint Commission

of Enquiry in terms of section 3 of Commission of Enquiry Act, 1952.

There was a public outcry upon murder of Brij Bihari and Ajit Sarkar,

Members of Legislative Assembly in succession in State of Bihar. At

the request made on 01.07.1998 by Smt. Madhavi Bose (Sarkar) wife

of deceased Ajit Sarkar, the investigation was transferred to CBI. It

would be pertinent to note that the said fact is well within the

knowledge of the appellants as reflected in the Supplementary Affidavit

filed by Harish Kumar Chaudhary in Cr.W.J.C. No. 8/2008 before the

High Court of Judicature at Patna. In furtherance thereof, it would be

relevant to note that on 11.08.1998 the State Government of Bihar

made recommendation in terms of section 6 of Delhi Special Police

Establishment Act, 1946 for transfer of investigation to CBI. Therefore,

since steps had already been embarked upon by the wife of the

deceased and the State Government had also constituted a commission


166

of enquiry, it is not unnatural for the witnesses to have not individually

preferred a protest before the court or Senior Officials of Bihar Police.

In this regard, it would be relevant to note that during cross

examination of the relevant witnesses, no question was put on behalf of

the accused persons that why no complaint was lodged by the said

witnesses before court or Senior Police officials. It was merely asked if

any such complaint was lodged. It is respectfully submitted that it was

incumbent upon the counsel of the accused to have expressly elicited

from the witnesses why no such complain was made and in absence of

such questioning the credibility of such witnesses cannot be impeached

on such count. Reliance is placed upon the judgment of the Hon‘ble

Supreme Court in State of Uttar Pradesh v. Nahar Singh reported as

(1998) 3 SCC 561; Sunil Kumar & Anr. v. State of Rajasthan

(2005) 9 SCC 283; Rajinder Pershad (Dead) by L.R.S. v. Darshana

Devi (Smt.) reported as (2001) 7 SCC 69; State of U.P. v. Anil Singh

reported as AIR 1988 SC 1998. With regard to the evidence of

Investigating Officer of Bihar Police A.K. Jha (PW 56) it is respectfully

submitted that the said witness had obvious motivations to support his

investigation and to save his own skin. As has already been highlighted

earlier, for numerous reasons, the assertion of the eye witnesses that

they did not read the Fard Bayan recorded by A.K. Jha (PW 56) and

merely signed the said document appears to have a ring of truth when


167

pitted against the evidence of the said Investigating Officer who carried

on the Investigation in the most slip shot/contaminated manner, to say

the least, and the State Government was impelled to transfer

investigation to CBI being itself dissatisfied with it. The said witness

was produced by the prosecution as he was the Investigating Officer of

the Bihar Police who had started the Investigating into the offence and

the CBI had taken on further Investigation thereafter, so he was

required to be produced in all fairness before the Hon‘ble Court to

unravel the initial phase of investigation, howsoever contaminated it be,

as this case was not a case of reinvestigation or fresh investigation in

which case the said evidence could have been affected from record as

nullity. Furthermore, on merits the testimony of Kalyan Chandra Sarkar

(PW 8) has been challenged on the ground that PW 19 Ranu Kumar

Singh- a resident of the locality who was the witness to inquest

according to Bihar Police, in the very first question in cross

examination deposed that he saw that after 45 minutes of his arrival at

the spot he saw Kalyan Chandra Sarkar come and scream who had

killed his brother. It is therefore contended that Kayan Chandra Sarkar

(PW 8) could not be an eye witness to the incident but arrived at the

spot much later. It is respectfully submitted that perusal of the

testimony of this witness indicates that when he arrived at the spot a

large crowd had already gathered. It is therefore highly possible that in


168

the said crowd he did not notice Kalyan Chandra Sarkar earlier and his

attention towards him was drawn much later. It may be noted that the

witness has not deposed that he saw Kalyan Chandra Sarkar alight from

the cycle etc. which would demonstrate with certainty that Kalyan

Chandra Sarkar arrived at the spot much later. The statement of this

witness in response to the very first question in cross examination as

such does not possess the potency to rule out the presence of Kalyan

Chandra Sarkar at the time of incident. Even otherwise, reliance is

placed upon the judgment of the Hon‘ble Supreme Court in Sohan Lal

@ Sohan Singh v. State of Punjab reported as (2003) 11 SCC 534

wherein it was held in para 23 that where a formal witness in cross

examination deposes a material fact in favour of accused which he

curiously omits to state in his statement under section 161 Cr.P.C. then

the court may draw the inference that he had been won over by the

accused and had deposed designedly to give benefit to the accused. In

the present case, PW 19 Ranu Kumar Singh was a mere formal witness

to inquest, however in response to the very first question in cross

examination he introduces a material fact for the first time that Kalyan

Chandra Sarkar arrived after 45 minutes of his reaching the spot. The

decision in the said case squarely applies to the facts of the present case

and in any event the testimony of PW 19 cannot erode the credibility of

the eye witnesses examined at the trial.


169

145. The Learned Counsel for appellant also said

challenge to the version of the eye witnesses by submitting that they

depose that injured Bodyguard Ramesh Uraon (PW 25) was taken in an

ambulance to Sadar Hospital by Kalyan Chandra Sarkar (PW8),

however, Ramesh Uraon (PW 25) in his deposition states that he was

taken to hospital by one Subhash Singh in a tempo and he did not see

Kalyan Chandra Sarkar at the spot. It is respectfully submitted that

Kalyan Chandra Sarkar in his cross examination has categorically

stated that the ambulance looked like a matador and there is no

contradiction as such on this aspect between the testimony of witnesses

inter se. Ambulance is merely a nomenclature for a vehicle which

carries patients and it is not unusual that in small towns or at times even

in cities the same is actually a tempo/matador being used for the said

purpose. It would be pertinent to note that Ramesh Uraon was injured

in the ghastly ordeal that ensued that day and he survived as he

managed to lie down in a bent position in the footrest of the car. It was

only after some time that he was taken out from the car by the villagers

and he was made to lie on the ground horizontally before being taken to

the hospital. It was emerged in evidence that a huge crowd had

gathered at the spot and it is quite natural that he may not have noticed

Kalyan Chandra Sarkar in the crowd as he himself was suffering from

excruciating pain. It would also be pertinent to note that it is not the


170

claim of Kalyan Chandra Sarkar that he spoke to Ramesh Uraon at the

spot or himself carried him to the ambulance in his hand. Kalyan

Chandra Sarkar has deposed that villagers took out Ramesh Uraon from

the car. Therefore there is no contradiction which casts doubt upon the

presence of Kalyan Chandra Sarkar. It is respectfully submitted that

Kalyan Chandra Sarkar was the unfortunate witness to the heart

rending murder of his brother in broad daylight. It is rather natural that

he was taken over by the events and was in a state of shock at the

relevant time. Crowd had gathered and it is safe to assume that

necessary steps were being taken by the villagers. Ramesh Uraon was a

mere guard of his brother Ajit Sarkar and it is not unnatural for him to

have not spoken to him at the scene of occurrence. It would be

pertinent to note that there is no cross examination of Kalyan Chandra

Sarkar on the aspect as to why he did not speak to Ramesh Uraon at the

scene of occurrence. As submitted earlier, in absence of cross

examination on a particular aspect specifically credibility of a witness

cannot be diminished on that count as it would tantamount to taking a

witness by surprise as if the question would have been put to him while

he was in witness box, he would have had the opportunity to offer an

explanation for the same which would be adjudged by the court on its

own value. It is further submitted that it has emerged in evidence that

Ramesh Uraon (PW 25) was carried in an ambulance and he has


171

deposed that he was accompanied by Subhash Singh. It has also

emerged in deposition of Kalyan Chandra Sarkar (PW8) that there were

other persons when he went to Sadar Hospital. Therefore, there is no

irreconcilable contradiction to discredit the version of Kalyan Chandra

Sarkar (PW8). It is quite possible that Kalyan Chandra Sarkar was

sitting in front seat of ambulance and Ramesh Uraon who was made to

lie in the rear portion of the ambulance could have observed only

Subhash Singh who was accompanying him in the said portion.

146. The appellants have also placed heavy reliance upon

the testimony of Madhumita Yadav (DW 21) daughter of Kalyan

Chandra Sarkar (PW8) who was wife of Raj Kumar Yadav @ Raju

Yadav and deposed that on the day of incident she was present at the

house of her father at Ranipatra although her husband was supposed to

be operated on that day for a disease not known to her and had to be

taken to Patna by train at 7 pm from Katihar. She deposed that at 5 pm

on that day she was still present at the house at Ranipatra when

someone whom she does not remember informed that Ajit Sarkar had

been killed and it was thereafter that her father left for Purnea. It was

deposed by her that she had visited the house of her father to collect

money for treatment of her husband; however Kalyan Chandra Sarkar

(PW8) had denied the said fact in his cross examination and had

deposed that his daughter had not visited him on the day of incident and


172

in fact she had collected money for the surgery of her husband from

Ajit Sarkar some days prior to the incident. Kalyan Chandra Sarkar

deposed that he did not himself give her money as her husband was a

drunkard and he himself was also not financially very sound. It is

respectfully submitted that reasons for such testimony of his witness

are not hard to seek. The said witness is a pliable witness for the

defence but not a reliable witness for the court. It was revealed during

cross examination by the Learned Special Public Prosecutor that the

said witness was the wife of Raju Yadav who was the associate of

Rajesh Ranjan @ Pappu Yadav and that she had performed a love

marriage with him and therefore had obvious motivations to lie,

especially after the death of her father Kalyan Chandra Sarkar on

06.02.2005. It would also be relevant to note that this witness has

deposed after nearly a decade of the incident and that at no time she

made any statement to any authority/court about her version of events

and that her father was lying.

147. It has been contended on behalf of the appellants that

there was excessive delay in holding TIP and therefore identification of

the Appellant Rajan Tiwari by witnesses in Beur Jail was of no

consequence. It is respectfully submitted that the Hon‘ble Supreme

Court has observed that no abstract time limit can be laid down for

holding TIP and mere delay in conducting the same cannot lead to


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rejection of evidence of the witnesses. Reliance is placed upon the

judgment of the Apex Court reported as (1994) 1 SCC 413 titled Brij

Mohan & Ors. v. State of Rajasthan, AIR 2012 SC (Criminal) 1034

titled Munna Kumar Upadhyay @ Munna v. State of Andhra

Pradesh and 2001 CriLJ 1268 titled Daya Singh v. State of Haryana.

It cannot be lost sight that the witnesses had ample opportunity in

sufficient day light to witness the incident and the same would have

any enduring impression upon their memory. It also assumes

significance that the witnesses in their statement to the CBI also

consistently gave description of Rajan Tiwari and therefore the mere

fact that there was some delay in conducting TIP after bringing accused

Rajan Tiwari to Bihar is of no consequence. It would also be pertinent

to note that all the three eye witnesses correctly identified the accused

in TIP and the accused Rajan Tiwari had not objected to the conduct of

the said TIP on the ground that he was shown to the witnesses etc. It is

also significant that the eye witnesses reside at Ranipatra whereas the

accused Rajan Tiwari was lodged at jail in Patna. Therefore, the

argument that the accused was shown to witnesses has no legs.

148. It has also been contended that during the

interregnum the witnesses may have had the opportunity to see the

photograph of the accused as it was published in newspaper. It is

respectfully submitted that it was positively emerged in evidence that


174

the witnesses did not see any photograph in the newspaper and in fact

Times of India (in which photograph was alleged to have been

published) was not widely circulated in the small town of Ranipatra

where the witnesses resided. The accused have not led any evidence to

rebut the said evidence and therefore this argument is also liable to be

rejected. Reliance is placed upon the decision of the Hon‘ble Kerala

High Court in Sajeevan and Ors. v. State of Kerala reported as 1994

CriLJ 1316 wherein it was observed by KT Thomas, J. (as he was then)

that it is not necessary that witnesses see photograph in the newspaper

and the mere fact of publication of photograph in journalistic

exuberance cannot throw overboard the evidence of a witness.

Motive of Rajesh Ranjan @ Pappu Yadav successfully proved by

the prosecution.

149. It is respectfully submitted that the prosecution has

proved beyond shadow of doubt that the appellant Rajesh Ranjan @

Pappu Yadav, had developed a deep rooted political rivalry against Ajit

Sarkar and had been a cause of ire in the mind of appellant Rajesh

Ranjan @ Pappu Yadav, which is manifested by his proclamation in

public gatherings that if he would win the election he would kill Ajit

Sarkar in his house and if he would lose he would kill Ajit Sarkar.

Ultimately, Rajesh Ranjan @ Pappu Yadav lost the election and Ajit

Sarkar had acted against the party whips by not supporting Rajesh


175

Ranjan @ Pappu Yadav. As highlighted earlier, there was clash in

political stand points of the two as Rajesh Ranjan @ Pappu Yadav

supported the landlords and Ajit Sarkar spearheaded the cause of

landless cultivators. Ajit Sarkar had also raised questions on the floor

of the House against the derelictions of Rajesh Ranjan @ Pappu Yadav

and it can be safely inferred that these factors cumulatively impelled

Rajesh Ranjan @ Pappu Yadav to author the conspiracy to kill Ajit

Sarkar with a view to fuel his political ambitions and the said

conspiracy was successfully executed by his henchmen. The said facts

emerge from the testimony of Ravindar Nath Singh (PW7),

Madhusudan Rishi (PW9), Lal Bahadur Uraon (PW 10) and Subodh

Yadav (PW20).

Inter se proximity between the conspirators and the factum of

being in constant touch near the time of incident.

150. As highlighted earlier a photograph (material exhibit

7) was recovered from the bedroom of the house of accused Rajesh

Ranjan @ Pappu Yadav wherein Rajan Tiwari can be seen standing in

company of Rajesh Ranjan @ Pappu Yadav and his family at some hill

station. The said photograph was recovered by CBI on 17.02.1999 in

pursuance of a search conducted after duly obtaining search warrants.

It has also emerged in the judicial confession of accused

Rajan Tiwari that in the morning Harish Chaudhary made Rajan Tiwari


176

speak to Rajesh Ranjan @ Pappu Yadav from telephone installed at

house of Pappu Yadav in Purnea to his telephone in his house at Delhi.

After commission of the crime the assailants visited the house of

Rajesh Ranjan @ Pappu Yadav and returned the weapons used in the

commission of offence. Thereafter, Rajan Tiwari and Amar Yadav

went to Katihar from where Rajan Tiwari made a phone call to

residence of Pappu Yadav in Delhi from a PCO Booth. Rajan Tiwari

thereafter spent some days in Siliguri and Darjeeling and from there he

went to house of Rajesh Ranjan @ Pappu Yadav located at 9, Harish

Chandra Mathur Lane at New Delhi. The family of Rajesh Ranjan @

Pappu Yadav along with Rajan Tiwari visited Patnitop and Vaishno

Devi. The said facts stand corroborated as true by the call detail records

and the photograph recovered by CBI. Pratap Yadav (PW1) who was

earlier bodyguard of Rajesh Ranjan @ Pappu Yadav for 3-4 years

although for reasons which are not hard to seek turned turtle in witness

box and was declared hostile by the prosecution, however admitted that

accused Anil Yadav would constantly meet accused Rajesh Ranjan @

Pappu Yadav during the period of elections. The said fact is also

deposed by Madhusudan Rishi (PW9) and Lal Bahadur Uraon (PW 10).

Therefore, the prosecution has successfully proved the factum of

proximity between the appellants before this Hon‘ble Court and

reliance is placed upon the decision of the Hon‘ble Supreme Court


177

repoted as (2010) 6 SCC 1 titled Sidhartha Vashishth @ Manu

Sharma v. State (NCT of Delhi) wherein it was pertinently observed

that the fact the accused persons were in constant touch after the

commission of offence was a highly relevant circumstance that the

court would take into consideration and the contention that the contents

of the conversation were not known would not impair its relevance.

151. It would also be apposite to refer to the erudite

observations of the Hon‘ble Supreme Court in Firozuddin

Basheeruddin and Ors. v. State of Kerala reported as (2001) 7 SCC

596 wherein the law with regard to conspiracy has been dealt in

extensio and admissibility of evidence in regard to conspiracies under

section 10 Indian Evidence Act that introduces the dimension of

‗vicarious liability‘ in conspiracy prosecutions has been reiterated after

taking stock of catena of judgments of the Apex Court.

It has been observed:

“….Conspiracy is not only a substantive crime. It

also serves as a basis for holding one person liable for the

crimes of others in cases where applications of the usual

doctrines of complicity would not render that person liable.

Thus, one who enters into a conspiratorial relationship is

liable for every reasonably foreseeable crime committed by

every other member of the conspiracy in furtherance of its


178

objectives, whether or not he knew of the crimes or aided in

their commission. The rationale is that criminal acts done in

furtherance of a conspiracy may be sufficiently dependent

upon the encouragement and support of the group as a whole

to warrant treating each member as a casual agent to each

act…

…..Regarding admissibility of evidence, loosened standards

prevail in a conspiracy trial. Contrary to the usual rule, in

conspiracy prosecutions an declaration by one conspirator,

made in furtherance of a conspiracy and during its pendency,

is admissible against each co-conspirator. Despite the

unreliability of hearsay evidence, it is admissible in

conspiracy prosecutions. Conspirators are liable on an gency

theory for statements of co-conspirators, just as they are for

the overt acts and crimes committed by their confreres…”

False and Bald denial in statement under section 313 Cr.P.C. by the

appellants leading to an additional circumstance in the chain of

evidence.

152. It is respectfully submitted that appellant Rajesh

Ranjan @ Pappu Yadav has made prevaricating statements in his

examination under section 313 Cr.P.C. and also made bald denial of

questions put to him by the Court. In response to question No. 6, Rajesh


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Ranjan @ Pappu Yadav has stated that he came to know Rajan Tiwari

when he became a Member Legislative Assembly from Govind Ganj

Constituency and did not know him earlier. Percontra, in response to

question no. 19, the appellant Rajesh Ranjan @ Pappu Yadav gives a

carte blanche denial that he does not know any Rajan Tiwari. The

appellant Rajesh Ranjan @ Pappu Yadav has also taken a stand that he

could not hear statement of any witnesses through video conferencing

facility, which is palpably false as the Learned Trial Court while

commencing recording of proceedings on every date would ensure that

accused Rajesh Ranjan @ Pappu Yadav was available through the video

conference link from Tihar Jail. The other appellants have tendered a

bald denial to the incriminatory circumstances emerging in evidence

against them, much less rendered any plausible explanation. The

Hon‘ble Supreme Court in catena of judgments has held that false

explanations and bald denial by accused persons add as an additional

circumstance to the chain of cirumstantial evidence and supply the

missing link, if any. Reliance is placed uponthe judgment of the Hon‘ble

Supreme Court in Joseph v. State of Kerala reported as (2000) 5 SCC

197; State of Maharashtra v. Suresh reported as (2000) 1 SCC 471;

Anthony D’ Souza and others. v. State of Karnataka reported as

(2003) 1 SCC 259 and Munna Kumar Upadhyay (Supra).


180

Submission on behalf of P.W. 9

153. Learned counsel for P.W. 9 submitted that confession

of Rajan Tiwary, Ext. 35 is detailed confession as therein he has not only

indicated his introduction to the criminal world but also about the

different crimes which he executed and appears to be voluntary in

nature. Reliance in this connection is placed on the judgment of the

Supreme Court in the case of Henry Westmuller Roberts etc. etc. Vs.

State of Assam and others etc., AIR 1985 Supreme Court 823,

paragraphs 4, 17, 30, 31, 33 and Shankaria Vs. State of Rajasthan,

AIR 1978 Supreme Court 1248, paragraph 52.

154. Learned counsel for P.W. 9 submitted that confession

of Rajan Tiwary stands corroborated by three empty cartridges

recovered from the place of occurrence, Ext. 9, two steel core portion

recovered from the Car on 3.3.1999, Ext. 10. Reliance in this connection

has been placed on the judgment of the Supreme Court in the case of

Abdulvahab Abdulmajid Shaikh and others Vs. State of Gujarat,

2007(4) SCC 257. In connection with 313 Cr.P.C. statement of the

accused persons learned counsel for P.W. 9 relied on the judgment of the

Supreme Court in the case of Alister Anthony Pareira Vs. State of

Maharashtra, 2012(1) PLJR 290(SC), paragraphs 14, 15, 49, 52, 59.

Learned counsel for P.W. 9 distinguished the judgment in the case of

Sarwan Singh (supra) with reference to paragraph 10 of the said


181

judgment wherefrom it appears that the accused who recorded his

confessional statement had blood stained cloths and visible sign of

injury and that is why confession made by him was not accepted by the

court.

155. Learned counsel for P.W. 9 next relied on the judgment

of the Supreme Court in the case of Krishna Mochi and others Vs.

State of Bihar, (2002) 6 SCC 81, paragraphs 31, 32, Dayal Singh and

others Vs. State of Uttaranchal, (2012) 8 SCC 263, paragraph 21 and

submitted that even one truthful witness is sufficient to hold the accused

persons guilty of the crime.

156. Learned counsel for P.W. 9 also pointed out that

investigation made by Sri A.K. Jha, P.W. 56 was not satisfactory which

would be evident from the fact that he obtained warrant against Amar

Yadav, Anil Yadav and Sanjay Rai on 27.6.1998 but did not execute the

same until 12.8.1998 when he only examined Sanjay Rai under Section

164 Cr.P.C. and having examined Sanjay Rai did not take him in

custody which would be evident from paragraphs 26, 27, 32 of the

evidence of P.W. 56.

157. Learned counsel for P.W. 9 also referred to the report

of P.W. 17 who conducted failed T.I.P. on 1.5.1999 and submitted that

the accused persons were so influential that they did not even allow the

T.I.P. to be conducted inside the jail premises.


182

158. Learned counsel for P.W. 9 also referred to the

evidence of P.W. 8, paragraph 16 and submitted that as P.W. 8

apprehended his own killing he did not report the matter to the local

police. He also referred to paragraph 17 of the evidence of P.W. 8 where

P.W. 8 stated that in spite of being provided with Bodyguard he

remained fearful and did not give information even to the Court about

his place of stay at Patna where he had come to depose in the trial. He

also referred to order dated 9.4.2003 passed by the trial court

whereunder orders were passed to provide security to P.W. 9.


evidence of P.W. 10, paragraphs 3, 4 and submitted that C.B.I. was

directed to provide security to P.W. 10.


evidence of Ravindra Nath Singh, P.W. 7 that deceased Ajit Sarkar had

raised question in the Assembly about the connivance of the jail staff

with appellant Rajesh Ranjan @ Pappu Yadav when he was allowed to

go to Purnia though he was not granted bail in a kidnapping case.

161. Learned counsel also referred to the evidence of Sri

G.S. Saini, P.W. 59 paragraph 42 whereunder the witness stated that had

Rajan Tiwary declined to record his confessional statement he would

have been sent to jail.

162. With reference to paragraph 96 of the evidence of P.W.


183

59 learned counsel submitted that P.W. 59 stated in court that he did not

see any visible mark of injury on the person of Rajan Tiwary.

163. Learned counsel for P.W. 9 also distinguished the

judgment of the Supreme Court in the case of Machhandar(supra) and

submitted that the confession was not relied upon in the said case as the

same was not brought to the notice of the accused while recording his

statement.

164. Learned counsel for P.W. 9 reiterated the aforesaid

submission also filed written submission stating that eye witnesses who

had come for test identification parade were assaulted by accused in the

present case of the police and the Magistrate in jail. Such was their clout

and signal to the other witnesses that any one coming to depose against

them would be harmed. The first six witnesses of C.B.I. turned hostile.

At final count more than a third, that is 22 out of the total 61 witnesses

turned hostile. Learned counsel also placed reliance in the written

submission on the judgment of the Supreme Court in the judgment

reported in 2005(3) SCC 284 in which Supreme Court noticed the fact

that even after being lodged in jail the nefarious activities of Rajesh

Ranjan @ Pappu Yadav continued unawaited and he was made accused

in a case under Section 302 I.P.C.

165. Learned counsel for P.W.9 also submitted that Rajan

Tiwary recorded his 313 Cr.P.C. statement on 23.11.2006 in which


184

Rajan Tiwary categorically denied to have made any judicial confession

and stated that C.B.I. merely took his signature on blank paper. In this

connection, it has been pointed out in the written submission that Rajan

Tiwary made three retractions on 1.3.1999, 30.3.1999 and 1.5.1999. In

first two retractions he had hinted at pressure from the C.B.I. which led

him to make confession although with respect to the first retraction it is

submitted that it was made in connection with some other case and not

the present case. In the background of the contents of the three

retractions learned counsel for P.W. 9 submitted that Rajan Tiwary

having denied to have made any statement it clearly implies that P.W. 59

fabricated the confession. In view of the allegation of fabrication of

confession the procedural shortcomings in the recording of the

confession would be wiped out. Any objection to the manner of

recording of confession cannot be taken and can certainly not be

entertained in view of the statement of Rajan Tiwary that he did not

make any statement. According to learned counsel what is required to be

sen is whether P.W. 59 fabricated the confession which cannot be

believed even for a memoent as the Metropolitan Magistrate a Judicial

Officer uninterested in the case having no axe to grind testified before

the court that he recorded the confession of Rajan Tiwary after

observing the safeguards there is no reason why the evidence of the

Judicial Officer should not be accepted.


185

166. It is further submitted that this Court should place

reliance on the confessional statement as it is not only voluntary but also

trustworthy for the following reasons :

(a) The confession is full of facts and minute details which would

only be known to the maker of the statement and none else. The

very fact of the statement studded with such vivid details which

only perpetrator of the crime would know, makes it spontaneous

and voluntary which cannot be the result of tutoring, coercion

or interpolation nor has been suggested by or on behalf of the

appellants. In this regard reliance can be placed on the judgment

of Henry Westmuller Versus State of Assam AIR 1985 SC 823 (

3 Judges) and Shankaria Versus State of Rajasthan AIR 1978

SC 1248 (3 Judges).

(b) Not only does A3 speak in great detail about the crime in

question but he also gives vivid details about his activities prior

to this occurrence, particularly the other crimes in which he was

involved. These details could not have been tutored to him by

the CBI.

(c) All the necessary requirements have been fulfilled by the

Magistrate P.W. 59 G.S. Saini who has recorded the confession

and after satisfying himself that the same is being made

voluntarily he has gone on to record the same. A bare reading of


186

the confessional statement along with the evidence of P.W.59 is

a definite indicator of the fact that the learned Magistrate had

complied with all the formalities of Section 164 of Cr.P.C.

(d) The requirement under section 164 (2) of Cr.P.C. that the

Magistrate before recording any such confession would explain

to the person making it that he is not bound to make a

confession and that if he does so it may be used as evidence

against him, has been completely fulfilled by the Magistrate

(P.W. 59) as when the accused was produced before him while

he was holding court, he had asked the accused to go to his

chamber, where he was all alone, and gave him one hour time to

think over. Even after giving him warning on three different

occasions that the statement that he was making could be used

against him, accused Rajan Tiwari had insisted on making the

statement. Thus the Magistrate had all reasons to believe that the

statement was being made voluntarily. It is submitted that the

appellants also do not suggest that no sufficient warning had

been given to A3 by the learned Magistrate.

(e) As regards the issue of time for reflection is concerned, the

Courts have time and again held that no straight jacket formula

can be applied and it will depend on the facts and circumstances

of the case. The argument advanced by the appellants that at


187

least 24 hours time should have been given ( in the light of

Sarwan Singh Judgment, AIR 1957 SC 637) does not hold

good in the facts of the present case and as has been also

discussed in Henry Westmuller case and in the case of

Shankaria versus State of Rajasthan AIR 1978 SC 1248 ( 3

Judges). The facts in Sarwan Singh case were materially

different in as much as there were evidence of visible marks of

injuries on the person making the confession and clothes were

also blood stained, while in the case at hand as per the evidence

of P.W.59 he has categorically submitted before the court that

there were no visible marks of injuries on his person. Thus there

was subjective satisfaction of the Magistrate that the person was

not forced or coerced into making the statement, which is the

requirement of law.

(f) In Shankaria case the Apex Court has in crystal clear terms

laid down that there is nothing in statutory provision in Section

164 Cr.P.C. or elsewhere, or even executive direction issued by

the High Court that there should be an interval of 24 hours or

more between the preliminary questioning of the accused and

recording of his confession and how much time for reflection

should be allowed to an accused person before recording his

confession is a question which depends on the facts and


188

circumstances of each case.

(g) The appellant has neither before the Chief Metropolitan

Magistrate on 22.02.1999 and on 23.02.1999 ( while he was

being sent for judicial custody) as well as before P.W. 59 on

22.02.1999 complained of any police torture, undue influence or

coercion or that the confession was put in his mouth by someone

else.

(h) The subsequent retraction by Rajan Tiwari in the present case

does not benefit him at all and rather the same can be read

against him. This is so because the retraction does not come at

the immediate instance. The first so-called retraction dated

01.03.1999 is silent about the confessional statement dated

22.02.1999. It rather relates more specifically to a different case.

This gets aggravated from the fact that he was produced by the

Delhi Police for extension of his judicial remand on 26.02.1999

before the Magistrate and he has not complained that the

confession dated 22.02.1999 was obtained from him by using

illegal methods. He was then produced in Court, in the presence

of his advocate, on 09.03.1999 before the Magistrate by CBI but

still, for the reasons best known to him, he has not even

remotely whispered anything to suggest that the said confession

was not in his words. As such his first retraction comes after a


189

gap of more than one month i.e. on 31.03.1999 from Jail and

then the second one on 21.04.1999. As such on this belated

retraction no reliance can be placed.

(i) It is submitted that merely because confession was retracted, it

need not be taken as confession under pressure nor any such

presumption can be raised. State of mind of accused is a

relevant factor. All precautions were taken and all formalities

were complied with. All confessions are retracted at a later stage

and rather the Hon‘ble Apex Court has observed that confession

not being retracted is a rarity. Therefore it is not a ground to

discard confession. Reliance is placed on Abdulvahab

Abdulmajid Shaikh Vs. State of Gujarat (2007) 4 SCC 257.

(j) The plea of the appellants that the confession has not been

signed by the maker on all the pages does not hold water in light

of the judgment of Hon‘ble Supreme Court in State of

Tamilnadu versus Nalini AIR 1999 SC 2640 (3 Judges) where

it has been held that there is no requirement in law that the

confession should be signed by the maker on all the pages and

requirement of law is that confession should be signed by its

maker at the end of confession. It may be added here that in

Nalini’s case despite the fact that the signature was missing on

the last two pages the confession was accepted as voluntary.


190

(k) As per as the argument by the appellants with regard to Section

30 of the Evidence Act goes, it is to be submitted that as on

date, the aforesaid provision is very much there in the statute

and unless declared ultra vires the same has to be applied in the

manner the statute provides. In AIR 1970 SC 45 (Md. Hussain

Umar Kochra etc. Vrs. K.S. Dalipsinghji and another), the

Apex Court has observed that case of retracted confession of co-

accused, u/s 30 Evidence Act, Court can take into consideration

such confessions although it cannot be made foundation of the

conviction. As such it is to be seen that there is nothing in law

which precludes from using the confession of the maker against

the co-accused with certain other corroborating circumstances.

(l) Further it is not open to the appellants to plead that the tenor of

confession shows that it is exculpatory because the mere reading

of the same would clearly demonstrate that the maker had

played active role in the whole incident and he knew what the

object of the conspiracy was. Therefore, his knowledge and

participation in the commission of the offence remains

undisputed as per his statement.

(m) The defence / appellants have raised contradictory pleas

regarding the confession. On one hand it has been argued that

the confession was recorded under pressure, secondly they have


191

raised a plea that the signature of Rajan Tiwari were taken on

blank papers and thirdly it has also been argued that there was

fabrication and interpolation in the confession i.e. Exhibit 35.

All these run contrary to each other because if fabrication was

required then there was no need to get signature on blank papers

or use force/ coercion / threat etc. The said pleas, it is submitted,

are destructive of each other.

(n) In the statement recorded under section 313 of Cr.P.C.

appellant Rajan Tiwari has made a blanket statement that no

such confessional statement was recorded / given by him. This

has no value in as much as it gain runs contrary to all his

previous stands in this regard. It is submitted that the A3 has in

this regard failed to take a clear and explicit stand. Reference to

Abdulvahab Abdul Majid Shaikh Case (Supra).

(o) In fact, the statement of Rajan Tiwari under Section 313 of the

Cr.P.C. would have the effect of completely wiping out his three

retractions as false and untrue because the implication of his this

statement is that the MM had fabricated the confession, which

cannot be believed.

(p) Another argument raised on behalf of the appellants challenging

the confession on the ground that no legal assistance was

provided to A3 before his confession was recorded is


192

completely unacceptable in view of the recent judgment of the

Apex Court in the case of Md. Ajmal Amir Kasab versus State

of Maharashtra (2012) 9 SCC 1. It has been clearly held failure

to provide a counsel at the pre-trial stage would not have the

effect of vitiating the trial.

164(2) & 164(3)

(q) It is respectfully submitted that the submission of the appellants

that sub-section 3 of Section 164 Cr.P.C. has to be read into

Section 164(2) is not legally tenable. Moreover, it is not a pre-

requisite for the Magistrate to give a prior warning to the person

making the confession that if he refuses to make the confession

then he will not be sent into police custody rather he will be sent

into judicial custody. There is, it is urged, no such legal

requirement. It is submitted that the provisions of Section 164(3)

are clear, explicit and do not call for any other interpretation.

This is so because on the plain reading of Section 164(3) it is

clear that only when the person appearing before the Magistrate

‗states‘ that he does not want to make the confession, the

Magistrate is duty bound not to authorize further detention of

that person in police custody. Even if a different interpretation of

the same is taken to mean that assurance has to be given prior to

recording of confession whether or not he declines to give the


193

statement, no adherence to the same would not render the

confession as involuntary in view of the substantial compliance

of the procedural requirements coupled with the satisfaction of

the Magistrate regarding its truth and voluntariness. Reference in

this regard be made to deposition of P.W.59 paragraph 81 Page

651 & 652.

(r) The matter relating to admissibility of any evidence brought

before a court of law and / or relevance thereof is governed by

the provisions of the Indian Evidence Act, 1872.

Section 24 of the Evidence Act provides that a confession made

by an accused by way of inducement, threat or promise would

become irrelevant in criminal proceedings. Section 25 makes any

confession made before a police officer to be wholly

inadmissible in evidence. Section 29 of the Indian Evidence Act,

however, deal with confession, which is otherwise relevant in the

following terms:

―29. Confession otherwise relevant not to become irrelevant

because of promise of secrecy, etc. – If such a confession is

otherwise relevant, it does not become irrelevant merely because

it was made under a promise of secrecy, or in consequence of a

deception practiced on the accused person for the purpose of

obtaining it, or when he was drunk, or because it was made in


194

answer to questions which he need not have answered, whatever

may have been the form of those questions, or because he was

not warned that he was not bound to make such confession, and

that evidence of it might be given against him.‖

(s) The provisions of the Indian Evidence Act, 1872 are substantive

in nature; whereas loosely speaking, the provisions relating to

confession made in the Code is procedural in nature, although it

is not suggested mean that the requirement of rendering warning

could be a mere formality.

(t) It is also true that having regard to the expanded right of the

accused as envisaged under Article 21 of the Constitution of

India, every person accused of an offence has a fundamental

right to be given such warnings but it does not mean that an

accused would claim a right which is not envisaged in law.

Certain provisions of the Code in this connection may be

noticed:

― 164(2) The Magistrate shall, before recording any

such confession, explain to the person making it that he is not

bound to make a confession and that, if he does so, it may be

used as evidence against him; and the Magistrate shall not record

any such confession unless, upon questioning the person making

it, he has reason to believe that it is being made voluntarily.


195

(3) If at any time before the confession is recorded,

the person appearing before the Magistrate states that he is not

willing to make the confession, the Magistrate shall not authorise

the detention of such person in police custody.

463. Non- compliance with provisions of section

164 or section 281.

(1) If any Court before which a confession or other

statement of an accused person recorded, or purporting to be

recorded under section 164 or section 281, is tendered, or has

been received, in evidence finds that any of the provisions of

either of such sections have not been complied with by the

Magistrate recording the statement, it may, notwithstanding

anything contained in section 91 of the Indian Evidence Act,

1872 (1 of 1872), take evidence in regard to such

noncompliance, and may, if satisfied that such non-compliance

has not injured the accused in his defence on the merits and that

he duly made the statement recorded, admit such statement.

(2) The provisions of this section apply to Courts of appeal,

reference and revision.‖

(u) Sub-section 3 of Section 164 of the Code, ipso facto does not

contain any statutory warning which must be given to the

accused which has otherwise been provided in sub-section 2 of


196

Section 164 of the Code. Broadly stated, therefore, whereas sub-

section 2 of Section 164 of the Code is couched in mandatory

terms; sub-section 3 of Section 164 of the Code restricts the

power of the Magistrate to authorize the detention of the accused

in police custody. It may not be necessary for us to consider the

options open to the Magistrate if the accused does not express his

willingness to make the confession. Suffice it to say that on a

plain reading it appears that sub-section 3 of Section 164 of the

Code does not mandate that the magistrate must give a pre-

warning to the accused, who has been brought before him to

make a confession.

(v) Even sub-section 2 of Section 164 although couched in

mandatory term, Section 463 of the Code makes such an

omission to be an irregularity, which can be explained otherwise

by the Magistrate himself, in the event the Sessions Judge calls

upon him to do so. Sub-sections 2 and 3 of Section 164,

therefore, stand on different footings.

(w) A distinction must also be borne in mind with regard to the

admissibility and inadmissibility of a confession. Whereas

Sections 24 and 25 of the Indian Evidence Act makes the

confession made by an accused wholly inadmissible if the

foundational facts in relation thereto are proved, Section 29


197

makes such a confession made before a Magistrate admissible,

although no warning had been given to the accused.

(x) It is one thing to say that the prosecution is precluded from

bringing the confession of a accused on record being

inadmissible in character, but it is another thing to say that such

confession may be admissible in evidence, but whether a

judgment of conviction can be recorded on the sole basis of such

confession or not would fall within the realm of appreciation of

evidence. For the aforementioned purpose, the Court is entitled

to consider such confession from various circumstances. It is

submitted that in this case, the confession coupled with the other

evidence available on record is sufficient to record a finding of

conviction, as has rightly been done by the learned trial court.

(y) Some decisions of the consequence of alleged / purported failure

on the part of the learned Magistrate to give warning to the effect

that he would not sent back to the police custody, if he does not

make the confession may be noticed.

(z) In Dagdu Vs. State of Maharashtra (1977) 3 SCC 68, a three

judge bench of the Apex Court stated the law in the following

terms:

―51. Learned counsel appearing for the State is right that the

failure to comply with s. 164 (3), Criminal Procedure Code, or


198

with the High Court Circulars will not render the confessions

inadmissible in evidence. Relevancy and admissibility of

evidence have to be determined in accordance with the

provisions of the Evidence Act. Section 29 of that Act lays

down that if a confession is otherwise, relevant it does not

become irrelevant merely because, inter alia, the accused was

not warned that he was not bound to make it and the evidence

of it might be given against him. If, there –fore, a confession

does not violate any one of the conditions operative under ss.

24 to 28 of the Evidence Act, it will be admissible in evidence.

But as in respect of any other admissible evidence, oral or

documentary, so in the case of confessional statements which

are otherwise admissible, the Court has still to consider

whether they can be accepted as true. If the facts and

circumstances surrounding the making of a confession appear

to cast a doubt on the veracity or voluntariness of the

confession, the Court may refuse to act upon the confession

even if it is admissible in evidence. That shows how important

it is for the Magistrate who records the confession to satisfy

himself by appropriate questioning of the confessing accused,

that the confession is true and voluntary. A strict and faithful

compliance with s. 164 of the Code and with the instructions


199

issued by the High Court affords in a large measure the

guarantee that the confession is voluntary. The failure to

observe the safeguards prescribed therein are in practice

calculated to impair the evidentiary value of the confessional

statements.‖

(aa) Having regard to the evidence of the Magistrate that he

did not comply with the requirements of Section 164, the

confessions of the approvers was not accepted. Each case,

it is urged, must be considered on its own facts.

(bb) The Supreme Court in Rabindra Kumar Pal (Dara

Singh) case (2011) 2 SCC 490, on which strong reliance

has been placed by the appellants, referred to its earlier

decision in Dagdu (supra). It is submitted that sub-para

(v) of para 64 of the judgment do not reflect the correct

position of law as stated in Dagdu (supra) and other cases.

The Apex Court in Rabindra Pal (Supra) should not be

considered to have laid down any law which would render

the requirements (if any) of informing the accused as to

his right that he would not be remanded to the police

custody in the event he does not make a confession

subsumed into sub-section 2 of Section 164 of the Code.

(cc) It will bear repetition to state that they stand on different


200

footings and must be read disjunctively and not

conjunctively.

(dd) Moreover, if the Court finds any inconsistency between

the two decisions, it is well settled that the decision of a

three judge bench shall prevail over a decision of a two

judge bench, for the reason that it could not have

overruled the decision of a larger bench and / or was

otherwise bound to follow the same.

(ee) That being the law with regard to the law of precedence,

it may not be correct to contend that sub-section 3 of

Section 164 of the Code provides for any requirement of a

pre-warning and in the event of failure on the part of the

Ld. Magistrate to give such pre-warning, the same would

make the judgment of conviction and sentence liable to be

reversed.

(ff) Furthermore, in Rabindra Kumar Pal (Supra), it does not

appear, that the applicability of the provisions of Section

29 of the Indian Evidence Act as also 463 of the Code had

been taken into consideration.

(gg) It may be noticed that there are some judgments, which

make the provisions of Section 29 prevail over the

provisions of Section 164 of the Code. See Rangappa


201

Hanamappa and Anr. Vs. State reported in AIR 1954

Bombay 285 (para 21), Vellamoonji Goundan Vs.

Emperor AIR 1932 Madras 431. In Emperor Vs. Jamuna

Singh and others reported in AIR 1947 Patna 305, a two

judge bench differed on their opinion with regard to

interpretation of Section 164 of the Code vis-à-vis Section

29 of the Evidence Act (see paras 11 and 35 for the

conflicting opinion). In that case a re-trial was ordered.

(hh) Yet again in State Vs. Mittoo, death Reference No. 3 of

76 Delhi High Court in a judgment reported in MANU /

OR/005 of 1978 laid emphasis on Section 29 of the

Evidence Act. See also 1982 Crl. LJ 269, ILR 1962

Madhya Bharat 133, 1954 Crl. LJ 887: AIR 1954 Bom

285 at 290 and 292, view of Rai J, in 1947 Patna 305

dissented from.

(ii) What, in law, is needed that the confession should be a

voluntary one and all warnings are necessary so that the

Ld. Magistrate satisfy himself that the same was being

made voluntarily. Absence of warning under Section 164

(3) of the Code would not make confession inadmissible

provided that accused knows that what is stated shall be

recorded and it would be used in evidence against him


202

(2005) 1 Andhra Legal Decisions (Crl.) 900 : (2005) 2

Andhra LT (Crl) 200 DB.

(jj) It is further pertinent to mention here that Rajan Tiwari

has a background where he is an accused in large number

of cases, including murder cases and has been facing trial.

Therefore this is not a person who can be expected to be

ignorant and oblivious to the provisions of law,

particularly those which concerns the rights of an accused.

Further, a bare reading of his retraction dated 30.03.2011,

which was written by him and not by his counsel, shows

that he had a clear understanding of the niceties of law as

he is well aware of the various provisions of law,

including Section 164 of the CrPC. What is further

pertinent to note is that A3 had access to legal advise

almost immediately after the confession was recorded as

the order sheets of the Ld. MM of dates subsequent to the

recording of the confession demonstrate.

(kk) It is further submitted that if the interpretation sought to

be given by the appellants to Section 164 of reading

Section 164(3) into Section 164(2) is to be accepted then

it would become a handle for misuse in the hands of

criminals, particularly hardened criminals like the accused


203

of this case. In every case where the IO obtains police

custody of an accused, the accused would straightaway

say that he desires to give a judicial confession but no

sooner is he brought before the Magistrate and the

Magistrate tells him that in case of refusal to give

confession, he would not be sent to police custody but

judicial custody, he would straightaway refuse to give

confession and then the Magistrate would have no option

but to send him to judicial custody. This would thus

become a handle for veteran criminals to avoid police

custody. Such can certainly not be the import of the law.

It is therefore necessary that the provisions of Section

164(2) and 164(3) should be read reasonably to avoid

such consequences.

(ll) The common thread running through almost all the

judgments of the Hon‘ble Supreme Court as well as

various Hon‘ble High Courts is that there must be a

satisfaction that the confession was voluntary. That is the

only test. Even alleged non adherence to various

procedural safeguards can never be sufficient to disbelieve

a confession if the court is otherwise satisfied that the

confession was voluntary.


204

167. The other factors which corroborate the confessional

statement of Rajan Tiwary according to learned counsel for P.W. 9 are

as follows:-

(i) In this case confessional statement is supported by

the disclosure cum pointing out memo (Ext. 43/1) of Rajan

Tiwary whereupon facts have been discovered in support thereof.

(ii) Both the confessional statement as well as the

aforesaid disclosure statement also point out that there was a deep

rooted political rivalry between Pappu Yadav and deceased Ajit

Sarkar.

(iii) The other instance that lends support to the

confession and which also figure in the disclosure statement

made by Rajan Tiwari is the phone records. He has

categorically stated in both the statements that he had a talk on

telephone with Pappu Yadav on 14.06.98 before the incident

and after the incident. In this regard the prosecution has

brought on record the print out (Exhibit 3 and 4) of the

telephone of Pappu Yadav‘s Delhi residence and his Arjun

Bhawan residence at Purnia as well as the PCO booth at

Katihar. Further the witnesses have also been examined in this

regard who support the case of the prosecution. It has also

come on record that Rajan Tiwari had himself stated that he


205

had made a phone call at the residence of Pappu Yadav at Delhi

and then at his residence at Gorakhpur from the Katihar PCO

(Anand PCO/ Naiyer PCO) on 14.02.98 after the commission

of the crime. This fact finds support in the telephone printouts

showing that there was a telephonic conversation between

Pappu Yadav and Rajan Tiwari just prior to and after the

commission of crime. Telephone calls indicating conversation

between Pappu Yadav ( at Delhi) and Rajan Tiwary ( at Anand

PCO / Naiyer PCO of Ramnani, Kathihar) [ P.W.6, 12 and 52]

{ Ext. 3 series, 4, 32} – at times in close proximity of the

commission of the crime. Attention is also invited to the

statement of P.W.12 and P.W. 52 para 6 pg 395 in this

regard.

(iv) These documents relating to telephone calls in the

form of print outs have been obtained in ordinary course of

activity of the computer and proved by the concerned official

who has procured the same in regular course of his official

duties. Hence, these print outs are admissible in evidence and

there is no reason to doubt the same.

(v) It is submitted that the telephone records might not

be of much help, if seen in isolation, but when seen in the

context of the confessional statement and the statement of eye


206

witnesses, it becomes a very important piece of evidence. It

clearly corroborates the confessional statement.

(vi) The recovery of red coloured bullet motorcycle on

the disclosure of Anil Yadav from his residence which was

used in the commission of offence. [P.W.61 para 23, pg. 684,

Seizure memo Ext. 40, Disclosure Memo Ext. 43]

(vii) The fact of following Ajit Sarkar‘s white

ambassador car by four persons on two motorcycles out of

which the names of Harish Choudhary, Amar Yadav and Anil

Yadav figure out on bullet and Yamaha motorcycles finds

corroboration from the evidence of P.w.15 & 16. They also

support the stand of P.W.25 that two persons got down from

the car of Ajit Sarkar near the market. As such their testimony

cannot be brushed aside merely on the account of they being

chance witnesses. They do support the prosecution case that the

car of Ajit Sarkar was being followed by the above mentioned

persons on the day and time of incident.

(viii) Another admitted circumstance is that the cause of

death of the deceased persons being firearm injuries fired from

close range in the car on account of firing of bullets. [ Medical

evidence thus supportive of prosecution case]

(ix) The scientific Evidence with regard to the three


207

empty cartridges seized from the scene of occurrence by

P.W.56 on the same day is very much clear that the said three

fired bullets could have been fired from AK 47 only. In this

regard the statement of P.W. 28 (Senior Scientific Officer,

Head of CFSL) assumes significance. (See Exhibit 9 series

and 10)

(x) On inspection of the damaged car by Principal

Scientific Officer CFSL (P.W. 33), two steel core portions

were recovered from the car (Seizure memo Ext. 10) Report

regarding steel core portion (Ext. 9/2) – Came from

disintegration of two 7.62 mm assault rifle fired bullets.

(xi) The examination report of car Ext. 9/1 showing

holes found in car by passage bullets fired from 7.62 mm

assault rifle.

(xii) It is also important to mention here that mere non-

recovery of the said AK 47 is not fatal to the case of

prosecution. Admittedly, the CBI came in picture after 4

months of the incident as such it was not probable for it to

recover the said weapon.

(xiii) On the basis of disclosure by Rajan Tiwary, the

premises of Pappu Yadav was searched and one photograph of

Pappu Yadav with his wife and Rajan Tiwary was recovered (


208

Mat. Ext. VII) and seized – seizure list Ext.39. This will show

that both the appellants were very well known to each other

from before. However, surprisingly the defence has taken a

bald plea of morphing of the photograph but has not

controverted the same in as much as the recovery from the

residence of Pappu Yadav is not doubted. As such their first

denial at the stage of statement under section 313 Cr.P.C. is

only an after thought which does not deserve any consideration.

It may be pertinent to mention here that the record of this case

leaves no manner of doubt that the accused in this case,

particularly A1 have been filing petitions, and upto the Apex

Court, at the drop of a hat. If what is now being argued about

the videoconferencing getting disconnected is true, then it can

not be believed that A1 would have left it that and not taken it

up to the highest court, if he had actually been prejudiced by

such a thing.

(xiv) In this connection it is also relevant to point out

that the reliance by the defence on the case of Machander Vs.

State of Hyderabad (AIR 1955 SC 792) is totally misconceived

and unfounded as this judgment nowhere postulates the actual

production of the material Ext. before the accused while his

313 Cr.P.C. statement is being recorded. In the said case the


209

circumstance of confession itself was not put to the accused. In

this regard reference is drawn to the case of A.A. Pareira Vrs.

State of Maharashtra (2012) Vol. 1 PLJR 290 (SC) which

lays down the test of prejudice and also states that failure in not

drawing the attention of the accused would not by itself render

the trial against the accused void and bad in law as the

procedures contained in Cr.P.C. is designed to further the ends

of justice and not to frustrate them by introducing hyper

technicalities.

(xv) P.W.59 (Magistrate recording the confession of

Rajan Tiwary) did not have any axe to grind against any of the

appellants much less Rajan Tiwari and he will not have any

reasons to falsely implicate him or the appellants. It is also to

be seen that the evidence of disinterested witness like that of a

Magistrate cannot be doubted or brushed aside. Daya Singh

versus State of Haryana (2001) 3 SCC 468.

C. Test Identification Parade

168. The identification of accused Rajan Tiwary by

P.Ws. 8, 9 and 10 in the TIP at Beur Jail despite the atmosphere of

hostility lends further assurance to the correctness of the

prosecution case with regard to complicity of Rajan Tiwary. In this

connection, reference is made to Exts. 5, 6 and 7 and deposition of


210

P.Ws. 13 and 17

In this connection, it would be apt to point out that the

three witnesses have been cross-examined at length on the point

that the CBI had shown the photograph to them before TIP or they

had seen them earlier in newspaper etc has been categorically

denied. It has also been denied that the CBI had shown the

appellant Rajan Tiwari to them has also been denied.

It will also be relevant to point out that P.W.8 K.C.

Sarkar has categorically stated in his evidence that he remembered

the face of Rajan Tiwari from the beginning. [Para 3 page 40]

In this regard reference may be made to the decision of

the Apex Court in which it has been held that mere publication of

photographs in the newspaper is no ground to disbelieve the test

identification parade and delay in holding TIP is snot fatal to the

prosecution case. ( See Munna Vrs. State of A.P. (2012) 6 SCC

174 and Anil Kumar Vrs. State of U.P. ( 2003) AIR SCW 977)

The witnesses have given specific description of Rajan

Tiwari and that assumes importance since their statement was

recorded before CBI in October 1998 while the TIP took place in

May 1999 and Rajan Tiwari fitted in the description given by the

eye-witnesses before CBI. { See Daya Singh versus State of

Haryana (2001) 3 SCC 468}


211

The investigation conducted by local I.O. i.e. P.W. 56 A.K. Jha

169. The investigation conducted by local I.O., P.W. 56 is

vitiated for the following reasons :-

a. Although as per P.W.56 he had recorded the fardbeyan

of K.C. Sarkar at the residence of Ajit Sarkar at 5.45 p.m. but his

statement is belied from his own deposition. He admits in his

deposition that he had received the information of firing on telephone

at about 5.00 p.m. and then he directly reached the P.O. He has stated

that he reached the P.O. at 6.30 p.m. [ para 3, pg 431-32 read with

para 6 pg. 439]

b. P.W. 8 has categorically stated that he had not made

any statement before the police and only is signature were taken on

15.06.98. This is important in light of the fact that Exhibit 31 which

is the FIR of local police clearly shows that it was sent to the court of

CJM, Purnia on 16.06.98 by a special messenger. As such it is hard to

believe that if the statement was recorded on 14.06.98 then there was

no reason for the FIR to be sent on 16.06.1998. Rather it lends support

to the case of P.W. 8 to 10 that only the signatures of P.W.8 and 10

were taken on 15.06.98.

c. Further this has also to be seen in light of the inquest

report which is said to have been made between 6.00 to 6.30 p.m. In

this regard the statement of P.W. 21 ( para 147) assumes importance


212

who has deposed that he did not go to the place of incident and his

signature was taken by the local police at his tea shop.

d. P.W.56 has accepted in his statement that he had taken

warrant of arrest against Anil Yadav, Amar Yadav, Sanjay Rai and

one Pawan Yadav on 27.06.98 only but for the reasons best known to

him he has not done anything against them specially Amar and Anil

throughout the period he was investigating which is almost 3 months

till he submitted his charge sheet.

e. The names of 11 persons including the present

appellants had transpired in the 164 Cr.P.C. statement of Sanjay Rai

as early as on 12.08.98 but again for the reasons best known to him he

has not done anything against them till he had submitted the charge

sheet - a fact which has been admitted by this witness in his

deposition ( Para 31 pg 454).

f. P.W. 56 had carried on the investigation for a period of

101 days but he had maintained diary only for 18 days – a conduct

which is unbecoming of a police officer who is investigating a case of

the murder of sitting MLA.

g. Although the State notification for transferring the case

to CBI had come on 11.08.98 but knowing this fact he had submitted

the chargesheet on 20.09.98 and soon thereafter the notification of

Central Government had also come on 29.09.98. As such it also


213

clouds the conduct of said witness.

Effect of Evidence of P.W. 25 and P.W.19

170. According to learned counsel for P.W. 9 evidence of

P.W. 25 and 19 should not be relied upon for the following reasons :-

1. The evidence of P.W.25 has to stand the test of scrutiny in

as much as it does not inspire confidence when read as

whole. This is so because the conduct of this witness, who is

a bodyguard of the deceased Ajit Sarkar, cannot be ignored.

He being a security officer, remained ducked inside the

vehicle for a long time, much after the incident was over. He

has admitted that there was a huge crowd immediately after

the incident. This should be read in harmony with the

evidence of other witnesses as well. As such it was not

easily possible to identify each and every person coupled

with the fact that he had sustained gunshot injuries and was

in a state of shock.

2. That the same test of reliability should be applied to P.w.19

as well. The appellants seek to take advantage the statement

of this witness in his cross examination wherein he has

stated that K.C. Sarkar came after 45 minutes and was

shouting as to who had killed. This has to be looked at after

reading the testimonies of all the witnesses as a whole. The


214

P.W. 8 is consistent in his stand that he did not know Rajan

Tiwari from beginning. Further, even as per prosecution

witnesses, who were at the scene of occurrence on the day

of the incident, there was a huge crowd at the place of the

incident. So taking this further and then reading it with the

abovementioned statement of P.W.19 on which the

appellants seek to rely, it can be safely concluded that only

when P.W.8 had shouted that P.W.19 noticed him in the

crowd and since P.W.8 was not knowing assailants by name,

this explains the utterance of P.W.8 as to who had killed his

brother.

Evidence of Eye witnesses

171. Evidence of eye witnesses P.Ws. 8 to 10 should be relied

upon for the following reasons :-

1. P.W. 8, 9 & 10 read together are consistent before CBI as

also during trial of being at the house of Ajit Sarkar for valid

reasons.

2. Consistent statement of leaving from the house of Ajit

Sarkar together carrying their cycles.

3. Their explanation of leaving the house of Ajit Sarkar on

account of bad weather gains strength from the evidence of

P.W. 8, 9, 10 and 21


215

4. Consistent statement with regard to having witnessed the

occurrence from a distance of 100 to 150 yards.

5. Consistency in the manner of assault.

6. Consistent on the point of not having given any statement to

local police on account of fear and threat to life.

7. All the three witnesses are consistent in their identification of

Rajan Tiwary at TIP as well as in court. Anil Yadav has also

been identified by P.W.9 & 10 in dock.

8. The assault on P.W.8 during TIP lends support to the fact

that the accused had apprehension of being identified and had

therefore made preparation for frustrating the TIP and

intimidating the witnesses. P.W.9 & 10 also met with bad

treatment upon identifying the accused.

9. All the three witnesses stood the test of lengthy cross

examination on the point of photograph of Rajan Tiwary not

having been shown to them or seen by them prior to TIP.

10. P.W. 8 being the full brother of deceased Ajit Sarkar would

not make an effort to screen the real culprit and allow them to

escape conviction.

11. There is no reason on part of these witnesses to falsely

implicate the appellants as they had no personal animosity with

them. Moreso when Rajan Tiwary was an outsider whom they


216

did not know by name on the date of incident.

12. There is no plausible cause as to why they would risk their

lives to only play into the hands of the CBI or any other

political party. ( Atleast P.W.8 and 10 are simple villagers with

no concern with politics.)

13. The credibility of these witnesses cannot be impeached

because of minor contradictions and inconsistencies. Wholistic

view to be taken while appreciating the evidence of witnesses.

The reasons for the silence of the witnesses has to be seen in

light of the following facts:

172. According to learned counsel for P.W. 9 the silence of

P.Ws. 8 to 10 for six months is to be seen in the following

backgrounds :-

1. Murder of powerful politician (Sitting MLA) in broad day

light by use of sophisticated weapons like AK47.

2. The assailants ( Known by face or name) were seen in

company of Pappu Yadav, powerful and influential politician

with criminal record.

3. Gross killing of three persons, one of them being Ajit Sarkar

with security, at a busy road is sufficient to instill fear in the

minds of people with no power and influence.

4. The apprehension of threat to life was not unfounded in view


217

of the fact that but for related, associated and official / formal

witnesses, more than 20 witnesses have turned hostile and have

resiled from their statement before CBI and even wife of slain

MLA, the other brothers and daughter of the deceased Ajit

Sarkar have not come to depose.

5. The treatment meted out to the witnessed during TIP further

corroborate the threat & terror factor. The first TIP was carried

out on 01/05/99 by P.W.17 (Ext.7) in which all three i.e. P.W.8

to 10 were present. However, due to unruly behavior of the

inmates of the jail the process of identification could not be

completed. In this regard, the report of the Magistrate(P.W.17)

which has been marked as Exhibit 7 assumes great importance.

It will be sufficient to show that the extent to which the

appellant Rajan Tiwari tried to intimidate the witness. No

fingers can be pointed out at the said TIP after it has been read

as a whole. The second TIP conducted on 13/5/99. P.W.9 & 10

identify Rajan Tiwary but both are SLAPPED. This also points

out that the appellant was still not ready to budge down and he

had again sent a message to the witnesses that they should not

stand in his way. (Ext.5 & 6)

6. Witnesses had apprehension of undue influence being

exercised over the local police and were thus not confident of


218

fair and impartial investigation coupled with apprehension of

security threats to them, could only muster courage by the

advent of independent investigating agency of CBI. The

murmuring of the investigation of the case being handed over to

CBI had already started which crystallized in the shape of state

government notification dated 11.08.1998 i.e. less than two

months of the date of occurrence.

7. In this light the judgment of Krishna Mochi and others Vs.

State of Bihar (2002) 6 SCC 81 assumes importance wherein

the Apex Court has referred to the sharp decline in ethical

values in public life and have stressed on the fact of the

witnesses not being inclined to depose for manifold reasons

being not having courage on account of threat to life etc.

Morseso when offenders are habitual criminals, highups and

musclemen. It has further been observed in the said case that

the maxim – let 100 guilty be acquitted but not a single

innocent be convicted is now changing as society not only

suffers by wrong conviction but it equally suffers by wrong

acquittal.

8. The case of Dayal Singh and others versus State of

Uttaranchal (2012) 8 SCC 263 also needs a reference wherein

the I.O. and the doctor had both failed to perform their duties.


219

The duty of the court in cases of such lapses is to see if

evidence given in court should be relied upon and acquittal on

grounds of defective investigation would amount to playing in

the hands of I.O., if designedly defective. In criminal cases, fate

of proceedings cannot be left in the hands of parties as crime is

a public wrong.

9. It is humbly submitted that courts cannot shut their eyes to

ground realities and this is one such case that owing to the reign

of terror prevailing in Purnea, the witnesses could not have

dared to approach any authority against the accused persons but

no sooner did the CBI take up investigation, they faithfully got

their statements recorded. The argument that if the witnesses

did not trust the state police, they ought to have filed

complaints before the court is not valid because even if the

witnesses or the informant had filed a complaint, they would

never have the sufficient wherewithal to obtain sufficient

evidence against the might of the accused. In a private

complaint, it is the complainant who has to adduce evidence

and if the accused of this case could try to till them in course of

a TIP, it can well be imagined how they would have secured

any evidence. Further, when more than one third of the PW‘s

turned hostile even when the investigating agency was the CBI,


220

it can well be imagined how many witnesses the poor

complainant would have managed to bring to the court, in a

private complaint.

Investigation by CBI- further investigation

173. According to learned counsel for P.W. 9 investigation by

the C.B.I. is further investigation, which would be evident from the

following facts :-

1. What is being contended by the accused is that since the

Magistrate at Purnea had taken cognizance of offences, the CBI

should have continued the proceedings before that court and the

accused of the first chargesheet could not have been discharged

by the CBI Magistrate and the trial of both sets of accused

should have been amalgamated. It is being argued that the CBI

investigation as also the proceedings before the Special

Magistrate and the Special Judge CBI are vitiated on account of

these. In this regard, a reference to Section 465 of the Cr.P.C.

may be relevant:

―465. Finding or sentence when reversible by reason of error,

omission or irregularity.—(1) Subject to the provisions

hereinbefore contained, no finding, sentence or order passed by

a court of competent jurisdiction shall be reversed or altered by

a court of appeal, confirmation or revision on account of any


221

error, omission or irregularity in the complaint, summons,

warrant, proclamation, order, judgment or other proceedings

before or during trial or in any inquiry or other proceedings

under this Code, or any error, or irregularity in any sanction for

the prosecution, unless in the opinion of that court, a failure of

justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity

in any proceeding under this Code, or any error, or irregularity

in any sanction for the prosecution has occasioned a failure of

justice, the court shall have regard to the fact whether the

objection could and should have been raised at an earlier stage

in the proceedings.‖

2. In light of the aforesaid provision, it is submitted that all

grounds being raised by the appellants accused at this appellate

stage are of no consequence and are fit to be rejected in view of

the clear statutory intendment.

3. In fact in a recent judgment of the Hon‘ble Supreme Court

reported in (2012) 4 SCC 566 it has been held

“ 37. On a studied scrutiny of the anatomy of the said

provision, it is luculent that the emphasis has been laid on a

―court of competent jurisdiction‖ and ―error, omission or

irregularity in the complaint, summons, warrant, proclamation,


222

order, judgment or other proceedings before or during trial‖ and

―a failure of justice has in fact been occasioned thereby‖. The

legislative intendment inhered in the language employed is

graphically clear that lancination or invalidation of a verdict

after trial is not to be taken recourse to solely because there is

an error, omission or irregularity in the proceeding. The term ―a

failure of justice‖ has been treated as the sine qua non for

setting aside the conviction.

And further held:

62. We have referred to the aforesaid authorities to illumine and

elucidate that the delay in conclusion of trial has a direct nexus

with the collective cry of the society and the anguish and agony

of an accused (quaere a victim). Decidedly, there has to be a

fair trial and no miscarriage of justice and under no

circumstances, prejudice should be caused to the accused but, a

pregnant one, every procedural lapse or every interdict that has

been acceded to and not objected at the appropriate stage would

not get the trial dented or make it unfair. Treating it to be unfair

would amount to an undesirable state of pink of perfection in

procedure. An absolute apple-pie order in carrying out the

adjective law, would only be sound and fury signify nothing.

63. In the case at hand, as is perceivable, no objection was


223

raised at the time of framing of charge or any other relevant

time but only propounded after conviction. Under these

circumstances, the right of the collective as well as the right of

the victim springs to the forefront and then it becomes

obligatory on the part of the accused to satisfy the court that

there has been failure of justice or prejudice has been caused to

him. Unless the same is established, setting aside of conviction

as a natural corollary or direction for retiral as the third step of

the syllogism solely on the said foundation would be an

anathema to justice.‖

4. It has been observed by even the Apex Court that the accused

in this case delayed the trial by adopting every trick in the book

and filing petitions at the drop of the hat. Therefore it is very

difficult to believe that had the accused actually been

prejudiced by any order passed by the trial court, they would

not have challenged the order.

5. With reference to the judgment of the Apex Court in Vinay

Tyagi’s case (delivered on 13.12.2012) it is submitted that it is

an admitted position that this was a case of further investigation

and not re-investigation. Insofar as the present set of accused

are concerned, they were duly chargesheeted and have been

tried in accordance with law on the basis of evidence adduced


224

by CBI against them. Therefore no prejudice has been caused to

them on account of the fact that the accused of the chargesheet

submitted by the state police have not been tried. Even insofar

as this chargesheet is concerned, the accused of this chargesheet

have been discharged by the CBI Magistrate in light of the

evidence collected by the CBI. Moreover, the entire records of

the Purnea proceedings were eventually transferred to the CBI

court and it was only thereafter that the trial has been

concluded. Therefore no prejudice whatsoever has been caused

to the present accused on this account. Further more the fact

situation in Vinay Tyagi‘s case was also very different as that

was a case of discharge while in the present case the trial has

been concluded.

5. It is further pertinent to mention here that these grounds were

raised by the defence before the trial court as well but rejected

in para 48 of the trial court judgment by holding that being the

trial court, its duty was to determine who the culprits were, who

had committed the murder and it would not go into the legality

and propriety of the discharge order. This view is absolutely

correct as the trial court has to decide on the guilt of the

accused on the basis of the evidence adduced and such

technical objections could not and cannot be permitted to come


225

in the way of doing substantive justice.

6. It is being further sought to be argued by the A1 that

although the P.W. 61 took over the investigation of the case

only on 23.10.1998 but on the same day he sent requests to

obtain details regarding the election and criminal antecedents of

A1. Motive is therefore being attributed that the CBI wanted to

implicate A1 from the very beginning. It is pertinent to mention

here that true it is that the state police did hardly any

investigation and therefore there might or might not have been

any material against A1 thus far but this would not imply that

the CBI should also be equally lax in its investigations. A1 was

admittedly an accused when the CBI took over and if the PW

61 tried to obtain details of A1, immediately after starting

investigation, no fault could be found with it.

174. Therefore, in consideration of entire facts and

circumstances of the case as well as the time when the crime was

perpetrated when the terror of appellants was writ large especially in

reference with Purnea, small inconsistencies in the evidence / case of

the prosecution cannot be made a big issue. The Court has to consider

the ground realities prevalent in the State of Bihar at that time. The

investigation by the local police was not above board in a high profile

case such as the present one. As such in consideration of the evidence


226

of prosecution witnesses, coupled with the confession of accused

Rajan Tiwary, the test identification parade, the conduct of the

accused persons during and after the incident and the exhibits on

record, no flaw can be attributed to the case of prosecution and the

conviction of accused persons deserves to be sustained.

Findings :

175. Having noted the prosecution case, evidence adduced

together with arguments of the counsel for the parties, this Court

proceed to consider the correctness or otherwise of the impugned

judgment holding the appellants guilty of hatching conspiracy to

eliminate Ajit Sarkar, which was executed by the appellants and two

others on 14.6.1998 and to undergo rigorous imprisonment for life.

Prosecution case of K. Hat P.S. Case No. 230/98 dated 14.6.1998 is set

out in the fardbeyan of Kalyan Chandra Sarkar, P.W. 8, Ext. 27 recorded

by Sri A.K. Jha, P.W. 56 Circle Inspector, Sadar Purnea at the residence

of the deceased Ajit Sarkar on 14.6.1998 at 17.45 hours. The informant

had come to the house of his brother Ajit Sarkar on 14.6.1998 in the

morning between 7-8 hours. The informant along with two comrades of

his brother Madhusudan Rishi, P.W. 9 and Lal Bahadur Oraon, P.W. 10

was returning to his village Rani Patra on the same day at about 4.30

P.M. The informant and two comrades had come ahead of Kali Flour

Mill, they saw a motorcycle parked on the road and two persons (1)


227

Jawahar Yadav and (2) Abdul Sattar were standing near the motorcycle.

Abdul Sattar signalled the car of his brother Ajit Sarkar coming from

opposite direction to stop. No sooner the car stopped (3) Diwakar

Chaudhary (4) Pappu Dev came on motorcycle from the front (5) Bipin

Singh and 6-7 others variously armed also came in a car and resorted to

indiscriminate firing. The two persons who were first seen standing near

the motorcycle also fired from rifle. Informant, P.W. 8 and the two

comrades, P.Ws. 9 and 10 raised alarm but the assailants managed to

escape. Informant and the two comrades came near the car and saw his

brother Ajit Sarkar, Asfaq Alam of Mahmadia Estate and driver

Hirendra Sharma dead, Bodyguard Ramesh Oraon, P.W. 25 seriously

injured. The fardbeyan was scribed by Inspector A.K. Jha, P.W. 56 and

signed by informant, P.W. 8, Lal Bahadur Oraon, P.W. 10 and Bilin

Chandra Sarkar another brother of the deceased Ajit Sarkar. Having

scribed the fardbeyan Inspector A.K. Jha, P.W. 56 under instruction

from S.P., Purnea took up the investigation, inspected the place of

occurrence, seized three empty cartridges of A.K. 47 vide seizure list,

Ext. 26. The inquest report of the three dead bodies was also prepared by

A.K. Jha, P.W. 56 vide Exts. Y, Y/1 and Y/2. Injured Bodyguard

Ramesh Oraon, P.W. 25 was shifted to the hospital and examined by Dr.

R.D. Raman, P.W. 15 vide injury report, Ext. 24. In the night between

14-15.6.1998 further statement of the informant, P.W. 8 and the


228

statement of two comrades Madhusudan Rishi and Lal Bahadur Oraon,

P.Ws. 9 and 10 was recorded reiterating the contents of the fardbeyan,

Ext. 27. In the same night raid was conducted in the house of the

accused named in the fardbeyan but none was found at their residence.

Post mortem of the three dead bodies was, however, delayed until the

arrival of Sri Lalu Prasad Yadav as there was public outcry after the

incident and was conducted on 15.6.1998 by Dr. B.K. Sinha, P.W. 32

vide Exts. 13, 13/1, 13/2. Kalyan Chandra Sarkar, P.W. 8 furnished the

alias name of Bipin Singh accused no. 5 of K. Hat P.S. Case No. 230/98

on 22.6.1998 to the I.O. of the said case, P.W. 56 along with his address,

whereafter Bipin Singh @ Bipin Chaudhary was arrested and remanded

to judicial custody on 23.6.1998. Smt. Madhvi Bose (Sarkar) wife of the

deceased Ajit Sarkar made a written request to Hon‘ble the Chief

Minister, Bihar on 1.7.1998 to transfer the investigation of K. Hat P.S.

Case No. 230/98 to C.B.I. On 19.7.1998 Smt. Madhvi Sarkar filed

application under Section 452 Cr.P.C. before Chief Judicial Magistrate,

Purnea requesting for release of the Ambassador Car, which was

allowed under order dated 25.7.1998 and the car was handed over to

Smt. Madhvi Sarkar. While the investigation of K. Hat P.S. Case No.

230/98 continued the State Government issued notification dated

11.8.1998 under Section 6 of the Delhi Special Police Establishment

Act, 1946, Ext. 3 granting its consent for investigation of K. Hat P.S.


229

Case No. 230/98 by the C.B.I. Before consideration of the consent given

by the State Government under notification dated 11.8.1998 and issue of

notification by the Government of India entrusting investigation of K.

Hat P.S. Case No. 230/98 to the C.B.I. Purnea district police recorded on

12.8.1998 the statement of one Sanjay Rai under Section 164 Cr.P.C.

and as Sanjay Rai corroborated the contents of the fardbeyan including

further statement of the informant, P.W. 8 and the statement of the two

comrades, P.Ws. 9 and 10 submitted charge sheet no. 210 dated

20.9.1998 in the court of Chief Judicial Magistrate, Purna finding the

accusation true against accused no. 5 Bipin Singh @ Bipin Chaudhary

the arrested accused and four others i.e. Jawahar Yadav, Abdul Sattar,

Diwakar Chaudhary and Pappu Dev named in the fardbeyan showing

them as absconders. From perusal of the charge sheet submitted by

Purnea police, it is apparent that the investigation continued against the

other suspects named by Sanjay Rai in his statement recorded under

Section 164 Cr.P.C. including the three appellants herein. Chief Judicial

Magistrate, Purnea under order dated 23.9.1998 having perused the

charge sheet dated 20.9.1998 took cognizance of the offences found true

by Purnea police and summoned the accused sent up for trial i.e. Bipin

Singh, four absconders and kept pending the supplementary

investigation against the 11 persons, the three appellants (4) Harish

Chaudhary (5) Amar Yadav (6) Prabhat Yadav (7) Pawan Yadav (8)


230

Pankaj Yadav (9) Santosh Yadav (10) Raju Yadav and (11) Manoj

Yadav. Government of India issued notification dated 28.9.1998, Ext. 42

entrusting investigation of K. Hat P.S. Case No. 230/98 to the C.B.I.

C.B.I. having taken over the investigation of K. Hat P.S. Case No.

230/98 on 12.10.1998 for administrative convenience registered first

information no. RC 12(S)/98-SIC-IV/New Delhi, Ext. 37/1

incorporating the contents of the fardbeyan of K. Hat P.S. Case No.

230/98. After registration of RC 12 (S)/ 98-SIC-IV/ New Delhi

investigation of the said case was entrusted to Sri N. S. Kharayat, Dy.

S.P. C.B.I, P.W. 61 and Inspector M.L. Meena, P.W. 57. The

investigating team reached Purnea on 21/22.10.1998 for conducting

further investigation and called upon the District Magistrate,

Superintendent of Police, Purnea as also the I.O. of K. Hat P.S. Case No.

230/98, P.W. 56 with a request to P.W. 56 to hand over the case records,

which was duly handed over by P.W. 56 to P.W. 61 on 23.10.1998.

Having perused the investigation records of K. Hat P.S. Case No. 230/98

P.W. 61 recorded the statement of Ravindra Nath Singh, Kalyan

Chandra Sarkar, Madhusudan Rishi and Lal Bahadur Oraon, P.Ws. 7, 8,

9 and 10 on 25.10.1998, 24.10.1998, 29.10.1998 and 28.10.1998

respectively. In the statement recorded by the I.O. of C.B.I., P.W. 61,

P.W. 8 disowned his statement recorded on 14.6.1998 at 5.45 P.M. on

the basis of which fardebyan, Ext. 27 was recorded by A.K. Jha, P.W.


231

56. He also disowned his re-statement made under Section 161 Cr.P.C.

before A.K. Jha during the night between 14-15.6.1998. In the statement

made before the I.O. of C.B.I P.W. 8 claimed that while he reached

ahead of Kali Flour Mill near culvert along with P.Ws. 9 and 10 he saw

Ajit Sarkar coming in his white Ambassador Car from a distance of 100-

150 yards. He further claimed that a red bullet motorcycle with two

occupants intercepted the car followed by another black Yamaha

motorcycle also with two occupants stopped on the right side of the car.

The pillion rider of the red bullet motorcycle shot at the driver of the car.

The driver of red bullet motorcycle kept the motorcycle in start position.

The pillion rider of black Yamaha motorcycle resorted to indiscriminate

firing on the person of Ajit Sarkar with a weapon which looked like

A.K. 47. The accused driving Yamaha motorcycle was firing shots from

a small weapon. According to P.W. 8 accused persons riding the two

motorcycles killed the driver of the car Hirendra Sharma, Ajit Sarkar

and Asfaq Alam sitting on the rear seat of the car and injured Ramesh

Oran Bodyguard, P.W. 25 sitting on the front next to the driver.

According to P.W. 8 after the occurrence many people gathered at the

place of occurrence. The dead bodies and the injured were taken to

hospital in Ambulance. The dead body of Ajit Sarkar was brought to his

residence in the night of 14.6.1998. He further claimed before the I.O.

C.B.I. that local police arrived next day on 15.6.1998 between 10-11


232

A.M. to enquire from him about the incident. P.W. 8 claimed before the

I.O. C.B.I. that he did not make any statement before the local police but

had given the local police at their request blank paper with his signature

to the police officer who had come to take his statement indicating

14.6.1998 as the date beneath his signature on the blank paper. P.Ws. 9

and 10 stated before the I.O. C.B.I. that they had come to the residence

of Ajit Sarkar on 14.6.1998 at about 4 P.M. as Sri Sarkar had called

them for providing hand pump but they could not meet Sri Sarkar. P.W.

8 informed P.Ws. 9, 10 that Sri Sarkar has gone to village Tharhara for

panchayati then the three decided to return to their village Rani Patra.

While returning P.Ws. 8 to 10 having come ahead of Kali Flour Mill

near culvert saw white Ambassador car of the deceased Ajit Sarkar

followed by red bullet motorcycle driven by appellant Anil Yadav and

Harish Chaudhary sitting as pillion rider. They also saw a black Yamaha

motorcycle driven by Amar Yadav over which Rajan Tiwary was the

pillion rider. The black Yamaha motorcycle stopped on the right side of

the car of the deceased Ajit Sarkar. Anil Yadav kept the red bullet

motorcycle in start position. The other three i.e. the driver of black

Yamaha motorcycle and the pillion riders of red bullet and Yamaha

motorcycle resorted to indiscriminate firing killing Hirendra Sharma the

driver of the car, Ajit Sarkar and Asfaq Alam sitting on the rear seat of

the car and also inflicted grievous injury on the person of the Bodyguard


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Ramesh Oraon, P.W. 25 sitting in the front next to the driver. It would

appear from the statement of P.Ws. 8 to 10 made before the I.O. C.B.I.

that they gave a consistent description of an unknown assailant who was

later identified as Rajan Tiwary upon arrest and consequent disclosure

made by him in Delhi and Purnea. Having recorded the statement of the

eye witnesses investigators of C.B.I. conducted further investigation and

obtained report dated 23.12.1998, Ext. 9 with regard to three fired

cartridges recovered from the spot by P.W. 56. From perusal of report, it

appears that the shots were fired from single 7.62 MM assault rifle.

Investigators of C.B.I. under letter dated 5.1.1999 obtained information

from the General Manager (Vigilance) M.T.N.L., New Delhi about the

name of the subscriber of telephone nos. 3730767 and 3736358

including the print out of the calls made and received by those numbers

during the period between 14.4.1998-31.12.1998. Call details of the

aforesaid two telephone numbers was submitted by P.W. 12 on

15.1.1999 vide Exts. 3/4, 3/5. Delhi police arrested Rajan Tiwary on

12.2.1999 in connection with R.K. Puram P.S. Case No. 122/99

registered for the offence under Section 25 of the Arms Act. After arrest

Rajan Tiwary made disclosure pertaining to K. Hat P.S. Case No.

230/98. Rajan Tiwary was produced on 13.2.1999 in the court of Sri

K.S. Mohi, Metropolitan Magistrate, Patiala House in connection with

R.K. Puram P.S. Case No. 122/99 vide remand application dated


234

13.2.1999, Ext. F/4 on the basis of which he was remanded to judicial

custody until 26.2.1999. P.W. 61 obtained custody of Rajan Tiwary on

13.2.1999 from S.I. Palvinder Singh for a period of 10 days until

23.2.1999 as would appear from the following endorsement ―received

accused in muffled condition with warrant‖ made by P.W. 61 in the

margin of petition dated 13.2.1999, Ext. F filed by S.I. Palvinder Singh

on the basis of which Metropolitan Magistrate remanded the accused

Rajan Tiwary to judicial custody till 26.2.1999. During the period

between 13-23.2.1999 Rajan Tiwary was subjected to sustained

interrogation by moving him from Delhi to Purnea and back. During the

period of sustained interrogation search warrant was also obtained on

17.2.1999 to search the house of the appellants. From Delhi house of

appellant Rajesh Ranjan @ Pappu Yadav one photograph, material

Ext.VII was seized vide seizure memo, Ext. 39 in which appellant

Rajesh Ranjan @ Pappu Yadav, his wife and child are seen with

appellant Rajan Tiwary. Appellant Anil Yadav was called to C.B.I.

Camp Office at Purnea on 17.2.1999, arrested and produced before the

Chief Judicial Magistrate, Purnea on 18.2.1999 who remanded him to

C.B.I. custody for ten days under order dated 18.2.1999 passed in K. Hat

P.S. Case No. 230/98. Anil Yadav also made disclosures on the basis of

which red bullet motorcycle was recovered from his house. He was

again produced before the Chief Judicial Magistrate, Purnea on


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28.2.1999 in K. Hat P.S. Case No. 230/98 as suspect. Call details of

Katihar P.C.O. booth no. 34679 was obtained under memo dated

18.2.1999, Ext. 3. Appellant Rajan Tiwary also made disclosures on

18/17.2.1999 leading to recoveries vide Exts. 1/8, 1/9, 1/10. Rajan

Tiwary was produced before the Chief Metropolitan Magistrate, Delhi

on 22.2.1999 and a petition Ext. 41 was filed to examine Rajan Tiwary

under Section 164 Cr.P.C. Chief Metropolitan Magistrate, Delhi

endorsed the said petition to Sri G.S. Saini, Metropolitan Magistrate,

P.W. 59. Appellant Rajan Tiwary with muffled face was thereafter

produced by the I.O. C.B.I., P.W. 61 before Sri G.S. Saini at 12.30 P.M.

for recording his 164 Cr.P.C. statement. Sri Saini after observing the

safeguards provided under Sub-clause (2) of Section 164 proceeded to

record the confessional statement of Rajan Tiwary at 1.15 P.M. Having

recorded the confessional statement of Rajan Tiwary on 22.2.1999 Sri

G.S. Saini, P.W. 59 gave his custody to I.O. C.B.I., P.W. 61, who again

produced Rajan Tiwary before Chief Metropolitan Magistrate, Delhi on

23.2.1999 when he was remanded to judicial custody in Tihar Jail. After

being lodged in Tihar on 23.2.1999 Rajan Tiwary filed undated

application addressed to Chief Metropolitan Magistrate, Delhi informing

the Chief Metropolitan Magistrate, Delhi that he has been implicated in

a false case by the crime branch of Delhi police. Perusal of undated

application further indicates that while Rajan Tiwary was in C.B.I.


236

custody he was subjected to extensive beating, torture and other third

degree methods as also forced to sign various blank papers, written

document and false statements. He was also not allowed to meet any one

including press person(s). Having come to jail custody he has learnt

from others about his statement which the police got published in

newspaper, which is wholly false. Aforesaid undated application of

Rajan Tiwary was forwarded to Chief Metropolitan Magistrate, Delhi by

the Deputy Superintendent, Central Jail No. 5, Tihar, New Delhi under

letter no. 181 dated 1.3.1999. The validity of the safeguards observed by

Sri G.S. Saini before recording the confessional statement of Rajan

Tiwary including his conduct of handing over the custody of Rajan

Tiwary to the I.O. of C.B.I., P.W. 61 after recording his 164 Cr.P.C.

statement shall be examined in this judgment a little later. Black

Yamaha motorcycle bearing Registration No. WB72-7109 was seized on

25.2.1999 from Jogbani P.S. vide Ext. 33/2 as the said motorcycle was

recovered by Jogbani P.S. on 4.7.1998 in abandoned condition. Two

steel core portions of A.K. 47 bullet were recovered under memo dated

3.3.1999, Ext. 10 from Ambassador car of the deceased parked in the

garage of Nitu da. Rajan Tiwary was again produced before the Chief

Metropolitan Magistrate, Delhi on 9.3.1999 when Chief Metropolitan

Magistrate, Delhi directed the Superintendent, Central Jail, Tihar to

arrange for transfer of Rajan Tiwary to concerned jail for his appearance


237

before the Special Judicial Magistrate, C.B.I. Patna on or before

23.3.1999. Rajan Tiwary was transferred to Adarsh Central Jail, Beur,

Patna and produced before the Special Judicial Magistrate, C.B.I. Patna

on 22.3.1999 and remanded to judicial custody. The two steel core

portions recovered from the car of the deceased on 3.3.1999 were

subjected to examination. Sri Rup Singh, P.W. 33 under report dated

22.3.1999, Ext. 9/1 reported that the aforesaid two steel core portions

were fired from 7.62 MM assault rifle. Call records of telephone nos.

23150, 23929 and 23446 installed at Purnea residence of Rajesh Ranjan

@ Pappu Yadav was received by the C.B.I. on 26.3.1999 under the

signature of S.Z. Hassan, P.W. 11. Rup Singh Scientific Officer, P.W.

33 under report no. 171 dated 1.4.1999, Ext. 9/2 reported that multiple

holes found in the Ambassador car of the deceased was caused by

passage of 7.62 MM bullet. Rajan Tiwary was subjected to Test

Identification Parade in Adarsh Central Jail, Beur, Patna on 1.5.1999

conducted by Sri Dharmsheel Srivastava, Judicial Magistrate, Ist Class,

P.W. 17. In the said Test Identification Parade P.W. 8 identified the

suspect Rajan Tiwary in 5th

attempt, as would appear from the

memorandum dated 3.5.1999, Ext. 7 prepared by the T.I. Magistrate,

P.W. 17. I.O. C.B.I., P.W. 61 relying on the statement of the eye

witnesses as also the other witnesses including identification made by

P.W. 8 submitted charge sheet no. 01 dated 10.5.1999 before the Special


238

Magistrate, C.B.I., Patna finding the accusation made against accused

persons named in column nos. 1 and 2 of the report dated 10.5.1999 to

be true. In paragraph 13 of the report dated 10.5.1999 it is further

observed that local police had filed charge sheet no. 210/98 dated

19.9.1998 (mistake for 20.9.1998) in the court of Chief Judicial

Magistrate, Purnea against accused Bipin Singh @ Bipin Chaudhary and

four others, namely, Jawahar Yadav, Abdul Sattar, Diwakar Chaudhary

and Pappu Dev of Saharsa with intimation to the court that investigation

against others including the appellants herein is in progress but the

accused persons named in the charge sheet filed by the local police have

not been found involved in the commission of this crime. It is further

stated in the report dated 10.5.1999 that the record concerning the charge

sheet submitted by the local police before Chief Judicial Magistrate,

Purnea may be summoned and the accused persons named in the charge

sheet submitted by the local police be discharged from the case. Another

T.I.P. was arranged on 12.5.1999 which was conducted by Sri Ravindra

Patwari, Judicial Magistrate, Ist Class, P.W. 13 in which P.Ws. 9 and 10

identified Rajan Tiwary vide T.I. Chart, Ext. 6. Appellant Rajesh Ranjan

@ Pappu Yadav was arrested on 23.5.1999. C.B.I. Magistrate in the

light of the charge sheet dated 10.5.1999 took cognizance of the offence

under order dated 16.7.1999 and summoned the accused sent up for trial

by the C.B.I. Supplementary charge sheet no. 04 dated 19.8.1999 was


239

submitted in continuation of the earlier charge sheet dated 10.5.1999

showing accused Rajesh Ranjan @ Pappu Yadav in judicial custody and

two others as absconders. Having filed charge sheet, supplementary

charge sheet I.O. C.B.I., P.W. 61 also filed separate application dated

15.9.1999 before the Special Magistrate C.B.I., Patna for discharge of

accused sent up for trial by the Purnea police under charge sheet no. 210

dated 20.9.1998. Special Magistrate C.B.I, Patna under order dated

15.9.1999 not only discharged the accused sent up for trial by the Purnea

police under charge sheet dated 20.9.1998 but also committed the case

of the three appellants sent up for trial by I.O. C.B.I. under charge sheet

dated 10.5.1999 and supplementary charge sheet dated 19.8.1999. The

validity of the order dated 15.9.1999 passed by the Special Magistrate

C.B.I., Patna discharging the accused sent up for trial by the Bihar police

shall also be examined a little later. Additional Sessions Judge-XI cum

C.B.I. Court, Patna under order dated 19.8.2000 framed common

charges separately against the appellants which has been indicated in

paragraph 7 at page 21 above. In support of the prosecution case C.B.I.

examined 61 witnesses including the three eye witnesses, P.Ws. 8 to 10

as indicated in paragraph 8 above. Besides the oral evidence C.B.I. also

relied on the documentary evidence as also materials exhibits which has

also been indicated in paragraphs 9 and 10 above.


240

Ocular and documentary evidence :

176. Success of the prosecution case will depend upon the

truthfulness or otherwise of the eye witnesses i.e. P.Ws. 8 to 10.

Aforesaid eye witnesses were first examined by the I.O. of local police

A.K. Jha, P.W. 56 on 14.6.1998 and during the night between 14-

15.6.1998. Before P.W. 56 the eye witnesses are said to have implicated

the accused persons named in the fardbeyan, Ext. 27, namely, Bipin

Singh @ Bipin Chaudhary and four others i.e. Jawahar Yadav, Md.

Sattar, Diwakar Chaudhary and Pappu Dev and sent up for trial under

charge sheet no. 210/98 dated 20.9.1998 filed by the Purnea police in the

court of Chief Judicial Magistrate, Purnea. These eye witnesses were

examined by the I.O. C.B.I., P.W. 61 between 25 to 29.10.1998. In the

statement recorded before P.W. 61 the eye witnesses disowned their

earlier statement recorded on 14.6.1998 and during the night between

14-15.6.1998 by the I.O. of Purnea police, P.W. 56 and implicated these

three appellants and the two absconders named in the charge sheet,

supplementary charge sheet dated 10.5.1999, 19.8.1999 filed by the I.O.

C.B.I., P.W. 61. P.W. 61 having noticed that the eye witnesses have

completely changed the identity of the accused as given in the

fardbeyan, Ext. 27 and the statement recorded by P.W. 56 during the

night between 14-15.6.1998 and the statement given before him,

confronted the eye witnesses with their earlier statement made on


241

14.6.1998 and during the night between 14-15.6.1998. The eye

witnesses, however, maintained before P.W. 61 that whatever they are

saying before him they have already stated before K. Hat police. In the

court the eye witnesses further changed their stand. P.W. 8 stated in

paragraph 1 that he never recorded his fardbeyan as Purnea police

arrived on 15.6.1998 between 10-11 A.M. to enquire from him about the

occurrence. P.W. 8 refused to make any statement before the officer who

had come to enquire from him about the occurrence but on the

instruction of the officer gave the officer blank paper with his signature

indicating 14.6.1998 as the date beneath his signature. P.W. 8 identified

his signature over the fardbeyan, which was marked as Ext. 1/4. P.W. 8

further reiterated in paragraph 7 of his cross examination that he had not

given any statement before the police as an eye witness of the

occurrence either on 14.6.1998 or on 15.6.1998 but had only put his

signature on 15.6.1998. In the same paragraph he has further stated that

he had not shown the place of occurrence to the police officials. In

paragraph 11, P.W. 8 stated that he had not shown the place from where

he had seen the occurrence to any one. In the same paragraph P.W. 8

further stated that he had given the first statement to the C.B.I. The two

witnesses who accompanied him at the time of occurrence also did not

record their statement before the local police. In the same paragraph he

further stated that on the date of occurrence wife and son of the deceased


242

Ajit Sarkar were available in the house but he did not inform them about

the occurrence. P.W. 9 also in paragraph 5 of his cross-examination

accepted that he had given his first statement before the C.B.I. after four

months of the occurrence. In paragraph 6 of his cross examination P.W.

9 further accepted that until he made statement before the I.O. of C.B.I.

he had not disclosed to any one, except his party workers that he is an

eye witness of the occurrence. P.W. 10 in paragraph 6 of his cross

examination also accepted that he had not disclosed any information

about the occurrence to the local police. In paragraph 7 he further stated

that he had not given any statement about the occurrence to the local

police. Aforesaid stand of the three eye witnesses is contrary to the

evidence of the I.O. of local police, P.W. 56 who has asserted in his

evidence that P.W. 8 recorded the fardbeyan giving the manner of

occurrence as also the name of the five accused persons i.e. Bipin Singh

@ Bipin Chaudhary, Jawahar Yadav, Abdul Sattar, Diwakar Chaudhary

and Pappu Dev incorporated in the fardbeyan. He further stated that

P.W. 8 further reiterated the version recorded by him in the fardbeyan in

his further statement which was recorded during the night between 14-

15.6.1998. He also stated that P.Ws. 9 and 10 in their statement under

Section 161 Cr.P.C. recorded during the night between 14-15.6.1998

also reiterated the version of the occurrence given by P.W. 8 including

the name of the accused mentioned in the fardbeyan and the further


243

statement of P.W. 8. I.O. C.B.I., P.W. 61 having noticed the

contradiction in the statement of the three eye witnesses given before

him and the statement given before the I.O. Purnea police, P.W. 56

confronted P.Ws. 8 to 10 with their previous statement recorded before

the I.O. of local police, P.W. 56. Eye witnesses, however, maintained

that whatever they had stated before the I.O. C.B.I. they had already

stated before the K.Hat police. In this regard reference is required to be

made to the statement of the I.O. C.B.I., P.W. 61 in paragraph 237, 238

of his deposition, which is incorporated hereinbelow for ready reference

:

237. Before recording the evidence of K.C. Sarkar, Madhusudan

Rishi and Lal Bahadur Oraon, I tried and find out that the

statement of those three witnesses recorded by K. Hat Police. I had

gone through their earlier statement recorded by K. Hat police

before recording their statement.

238. I confronted the witnesses at the time of recording their

evidence from earlier evidence. They have stated that whatever

they are saying before me, they have already stated before K. Hat

Police.

It would, thus, appear that the three eye witnesses of the

occurrence are not only contradicting themselves about the identity of

the assailants before the I.O. of local police P.W. 56 and the I.O. of


244

C.B.I., P.W. 61 but are also contradicting themselves on the point of

recording first statement. Before I.O. C.B.I. they stated that they

recorded the same statement before the I.O. of local police which they

have recorded before him. In court the eye witnesses i.e. P.Ws. 8 to 10

stated that they had not recorded fardbeyan, further statement and the

statement before the I.O. of local police and made their first statement

before the I.O. of C.B.I. P.W. 8 further stated in court that on 15.6.1998

between 10-11 A.M. police officer from K. Hat P.S. had approached him

to enquire about the occurrence but he refused to make any statement,

however, at the request of the police officer gave him blank paper with

signature indicating 14.6.1998 as the date beneath the signature.

Aforesaid two material contradictions in the deposition of the eye

witnesses is required to be considered in the light of the evidence of I.O.

of local police, P.W. 56. The evidence of P.W. 56 has not been

challenged by the prosecution nor has any suggestion been made to him

that he fabricated the fardbeyan and misconducted the investigation. On

the contrary P.W. 8 having admitted his signature on the fardbeyan, the

evidence of P.W. 56 is required to be accepted. P.W. 8 and the two

comrades, P.Ws. 9 and 10 when confronted by the I.O. C.B.I., P.W. 61

admitted before him that they had given the same statement to the I.O. of

local police which they are giving before him. P.W. 8 never made

complaint before any authority that his signature was taken by P.W. 56


245

on blank paper on 15.6.1998 with date 14.6.1998 beneath his signature.

The contents of the fardbeyan are detailed and it is not possible to accept

the criticism that the I.O. of local police, P.W. 56 imagined those details

and prepared/fabricated Ext. 27. Reference in this connection is made to

the judgment of the Supreme Court in the case of Sarwan Singh and

Others Vs. State of Punjab, (1976) 4 SCC 369, paragraph 8 at page

375. Judgment of the Supreme Court in the case of Kanti Kumari Roy

Vs. Suresh Kumar Roy and others, AIR 1990 Supreme Court 1631,

paragraph 6 and Khujji @ Surendra Tiwari Vs. State of Madhya

Pradesh, (1991) 3 SCC 627, paragraph 6 has been relied upon by the

counsel for the appellant to substantiate the submission that P.W. 8

being a retired Sergeant Driver of the Railway Protection Force cannot

be believed that he handed over blank paper with his signature to the

I.O. of local police, P.W. 56 and did not disclose such fact even to the

I.O. of C.B.I., P.W. 61 till he came to the court to give evidence that he

gave blank paper with his signature to the I.O. of State police, P.W. 56.

P.W. 9 is also not to be relied as he is member of C.P.M. District

Committee and did not disclose to the local police that he is an eye

witness but disclosed such fact after four months of the occurrence to the

C.B.I. He is also not to be relied as he knew Anil Yadav, Harish

Chaudhary, Amar Yadav by face and name prior to the occurrence but

his failure to disclose their names to P.W. 8 renders his claim doubtful.


246

He also stands extensively contradicted in the light of his case diary

statement recorded by P.W. 56. P.W. 9 claimed that he informed his

party worker about identity of the assailant but not a single party worker

has been examined to corroborate him. On the contrary I.O. C.B.I., P.W.

61 stated that he could not locate any party worker to whom P.W. 9 had

disclosed the name of the assailants. Aforesaid false evidence given by

P.W. 9 shakes the foundation of the prosecution case. P.W. 9 is also not

to be relied as he stands contradicted by injured P.W. 25 as according to

P.W. 9 injured was sent to hospital in Ambulance, which is incorrect in

view of the evidence of the injured that he went to the hospital in tempo.

P.W. 9 having not disclosed to the local police soon after the incident

that he is an eye witness no reliance can be placed on his evidence.

Evidence of P.W. 10 is also not fit to be relied as he having counter-

signed the fardbeyan, Ext. 27 on 14.6.1998 denied such fact. P.W. 10

also knew Anil Yadav, Amar Yadav and Harish Chaudhary from before

but did not disclose their names to P.W. 8 vide paragraph 10 of the

evidence of P.W. 8. He also did not disclose the names of the assailants

to the wife of the deceased vide paragraph 10 of the evidence of P.W.

10. He also did not inform local police that he is an eye witness vide

paragraphs 6, 7 of his evidence. He disclosed the fact that he is an eye

witness to the occurrence one month after the occurrence vide paragraph

2 of his evidence. In view of the aforesaid material contradictions in the


247

statement and deposition of the eye witnesses, the submission of the

counsel for the appellants that P.Ws. 8 to 10 cannot be relied as they are

residents of village Rani Patra, which is seven kilometers away from the

place of occurrence and reached the place of occurrence after 45 minutes

of the occurrence as per the evidence of Ranu Kumar Singh, P.W. 19

paragraph 8 and injured Ramesh Oraon, P.W. 25 paragraphs 8 to 10 that

he remained at the place of occurrence for about half an hour after the

occurrence but the eye witnesses were not seen by him, is required to be

appreciated. Injured P.W. 25 further stated in paragraph 2 that Subhash

Singh was first to arrive at the place of occurrence and that Subhash

Singh rescued him from the car. The evidence of P.Ws. 19, 25

contradicts the eye witnesses that they were the first to reach the place of

occurrence. Sunil Kumar Singh, P.W. 14 has also corroborated the

injured Ramesh Oraon about the presence of Subhash Singh and has

stated that it was Subhash Singh who gave information at the house of

the deceased Ajit Sarkar about incident at 5 P.M. The evidence of P.Ws.

19, 25, 14 having not been challenged by the prosecution their evidence

is binding on the prosecution. Reference in this connection is made to

the judgment of the Supreme Court in the case of Javed Masood and

Another Vs. State of Rajasthan, AIR 2010 Supreme Court 979,

paragraphs 9, 10, 13 to 16. Placing reliance over the judgment in the

case of Javed Masood (supra) it is observed that in view of the evidence


248

of P.Ws. 19, 25, 14 which has not been challenged by the prosecution

the presence of the eye witnesses P.Ws. 8 to 10 at the place, time of

occurrence becomes doubtful. The examination in chief of Ravindra

Nath Singh, Subodh Yadav, P.Ws. 7, 20 in paragraph 1 indicate that on

8.6.1998 P.W. 7 had come to Purnea Bar Library to meet a friend

Advocate where he learnt from his old acquaintance Subodh Yadav,

P.W. 20 that Rajesh Ranjan @ Pappu Yadav had called Rajan Tiwary to

Purnea who is about to kill M.L.A. Dilip Yadav and Ajit Sarkar as P.W.

20 had given to him a written piece of paper in which it was so written.

Aforesaid evidence of P.Ws. 7, 20 cannot be accepted for the failure of

P.Ws. 7, 20 to take any step in the matter including lodging of the F.I.R.

against Rajesh Ranjan @ Pappu Yadav and Rajan Tiwary. Having not

lodged F.I.R. strong inference of falsehood of the said statement and

existence of piece of paper dated 8.6.1998 has to be drawn and

consequential benefit given to the appellants. The evidence of Domai

Thakur P.W. 15 and Shambhoo Prasad Mehta, P.W. 16 that they had

seen Anil Yadav, Harish Chaudhary, Amar Yadav and one unknown in

Harda Market in the afternoon of 14.6.1998 taking rounds on the market

road over red bullet and black motorcycle and thereafter followed the car

of the deceased is also not worthy of credence in view of the evidence of

I.O. C.B.I., P.W. 61 vide paragraphs 109, 289 that P.Ws. 15, 16 had not

made such statement before him. Reliance placed by the prosecution on


249

telephone print out Ext. 3 series to establish the conspiracy hatched by

the appellant for elimination of Ajit Sarkar is also misplaced. Perusal of

Ext. 3 series indicates that call of long duration was made in the morning

of 14.6.1998 from Delhi residence of appellant Rajesh Ranjan @ Pappu

Yadav to his Purnea residence. The print out further indicates that on the

date of occurrence at 18 hours 16 minute 48 second call of 42 second

duration and at 18 hours 18 minute 16 second call of 32 second duration

was made from Katihar P.C.O. telephone no. 34679 to Delhi residence

of appellant Rajesh Ranjan @ Pappu Yadav on telephone no. 3730767

subscribed in his name and on telephone no. 3736358 subscribed in the

name of his wife. On the same day at 20 hours 08 minute 41 second call

from the same P.C.O. of one minute 26 second duration was made to

Gorakhpur residence of appellant Rajan Tiwary on telephone no.

0551322035. From the print out Ext. 3 series, the evidence of

Ramashray Rajak, P.W. 6 officer of the telephone company who issued

print out and Om Prakash Ramnani, P.W. 52 husband of the telephone

booth owner, it is impossible to identify either the caller or the called or

the contents of their conversation, as such, it is not safe to rely on the

print out, Ext. 3 series in support of the prosecution case. In this

connection, it may be stated here that this Court categorically asked the

counsel for the C.B.I. to indicate the material on the basis of which it is

concluded by C.B.I. that telephone no. 0551322035 is the telephone


250

subscribed by appellant Rajan Tiwary at his Gorakhpur residence.

Counsel could not refer to any material, as such, it is difficult for this

Court to accept the submission that Rajan Tiwary made call of one

minute 26 second duration from Katihar P.C.O. booth no. 34679 to his

Gorakhpur residence on 14.6.1998 at 20 hours 08 minute 41 second.

Recovery of the two steel core portions from the car of the deceased on

3.3.1999 and the report of Rup Singh, P.W. 33 dated 22.3.1999, Ext. 9/1

that the aforesaid two steel core portions were fired from 7.62 MM

assault rifle cannot be relied upon as possibility of plantation of the two

steel core portions in the car of the deceased cannot be ruled out after its

release by the Chief Judicial Magistrate, Purnea under order dated

25.7.1998 in favour of Madhvi Bose (Sarkar), wife of the deceased,

whereafter the car was parked in the garage of Nitu da for repair

wherefrom the two steel core portions were recovered on 3.3.1999 i.e.

after about 9 months of the occurrence. Photograph, material Ext. VII in

which appellant Rajesh Ranjan @ Pappu Yadav his wife and child are

seen with appellant Rajan Tiwary is indicative of the association

between the two appellants seen in the photograph but association

simplicitor does not establish hatching and execution of conspiracy by

them and others.

Judicial Confession

177. Having considered the merit of the deposition of P.Ws.


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7 to 10, 14 to 16, 19, 20 and 25, the documentary evidence, Ext. 3 series,

material Ext. VII, I proceed to consider the validity of the judicial

confession recorded by Rajan Tiwary on 22.2.1999 before Sri G.S.

Saini, Metropolitan Magistrate, New Delhi, P.W. 59. Delhi police

arrested Rajan Tiwary on 12.2.1999 in connection with R.K. Puram P.S.

Case No. 122/99 registered for the offence under Section 25 of the Arms

Act and produced him before Sri K.S. Mohi, Metropolitan Magistrate,

Patiala House, Delhi on 13.2.1999 in connection with R.K. Puram P.S.

Case No. 122/99 vide remand application dated 13.2.1999 filed by S.I.

Palvinder Singh of Special Team, Crime Branch, Delhi, Ext. F/4. Perusal

of Ext. F/4 indicates that the Metropolitan Magistrate having considered

the contents of the application passed orders for remand of Rajan Tiwary

to judicial custody until 26.2.1999. I.O. C.B.I, P.W. 61, however,

obtained custody of Rajan Tiwary in muffled condition with warrant,

which would appear from endorsement made by P.W. 61 on copy of

remand application dated 13.2.1999, Ext. F. Counsel for the parties

made lengthy submission about the legality or otherwise of the nature of

custody of Rajan Tiwary obtained by I.O. C.B.I. on 13.2.1999. Nature of

the custody of Rajan Tiwary obtained by I.O. C.B.I., P.W. 61 on

13.2.1999 shall be considered a little later. P.W. 61 having obtained the

custody of Rajan Tiwary subjected him to sustained interrogation by

moving him from Delhi to Purnea and back. Rajan Tiwary is said to


252

have made disclosures on 18/17.2.1999 leading to recoveries vide Exts.

1/8, 1/9, 1/10. Rajan Tiwary having made disclosures was produced

before the Chief Metropolitan Magistrate, Delhi on 22.2.1999 and a

petition, Ext. 41 was filed to examine Rajan Tiwary under Section 164

Cr.P.C. Chief Metropolitan Magistrate, Delhi endorsed Ext. 41 to Sri

G.S. Saini, Metropolitan Magistrate, P.W. 59 vide endorsement Ext. 36

made over Ext. 41. Ext. 41 was considered by Sri Saini on the same day

i.e. 22.2.1999 and Sri Saini directed over Ext. 41 itself that accused be

produced before him at 12.30 P.M. Rajan Tiwary with muffled face was

produced by I.O. C.B.I., P.W. 61 before Sri G.S. Saini at 12.30 P.M.

who directed P.W. 61 to go out of court and accused be made to sit in

court, proceeding be recorded in separate sheet vide endorsement made

by Sri Saini, Ext. 36/1 over Ext. 41. From perusal of proceeding in

separate sheet maintained by Sri Saini on 22.2.1999 at 12.30 P.M., it

appears that application for recording of statement of accused Rajan

Tiwary was moved before learned Chief Metropolitan Magistrate and

the same was assigned to Sri Saini. Accused Rajan Tiwary with muffled

face was produced before Sri Saini. Sri Saini sent all the police persons

out of court and the accused was made to sit in his Chamber. He

explained to the accused that he is not bound to make his statement. He

also told Rajan Tiwary that if he makes the statement, it can be used

against him as evidence. Rajan Tiwary insisted in making the statement.


253

Sri Saini thereafter gave Rajan Tiwary one hour time to reflect over the

matter again. Sri Saini again asked Rajan Tiwary at 1.15 P.M. in his

Chamber whether he wants to record his confessional statement. Rajan

Tiwary stated that he wants to bring real culprit to book and is making

statement voluntarily. Sri Saini again warned Rajan Tiwary that he is not

bound to make confessional statement and his statement shall be used as

evidence against him but Rajan Tiwary insisted again for making

statement. Sri Saini thereafter put following two questions to Rajan

Tiwary (1) Why do you want to make confessional statement? Rajan

Tiwary answered that he wants to make statement as he wants to

improve himself and to disclose the identity of the real culprit. In answer

to the second question as to whether he has been pressurized by the

police or C.B.I. to make statement, Rajan Tiwary answered that he has

not been pressurized by any one to record his statement. Having put the

question and recorded the answer of Rajan Tiwary Sri Saini put his own

signature on the right hand side of page 2 of the proceeding drawn in

separate sheet and obtained signature of Rajan Tiwary on the left hand

side of page 2 of the proceeding. Signature of Rajan Tiwary over the

proceeding has been marked as Ext. 34. Beneath the signature of Rajan

Tiwary, Ext. 34 Sri Saini recorded his satisfaction that Rajan Tiwary is

making confessional statement voluntarily without any force from any

quarter in order to make clean breast and then proceeded to record his


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statement, which begins from page 3 and concludes at page 6 of the

proceeding. At the bottom of the confessional statement at page 6 of the

proceeding Sri Saini and Rajan Tiwary again put their signature.

Signature of Rajan Tiwary at page 6 is marked as Ext. 34/1. After

recording of confessional statement P.W. 61 identified accused Rajan

Tiwary and endorsement to that effect is in the left hand margin of page

6 of the proceeding. Beneath the signature of Sri Saini and Rajan Tiwary

at page 6 of the proceeding memorandum in terms of Sub-section (4) of

Section 164 Cr.P.C. has been recorded by Sri Saini. At page 7 of the

proceeding Sri Saini has certified that the above proceeding conducted

in his Chamber is the true and correct account of the proceeding and

nothing has been added or subtracted therefrom. Having recorded the

proceeding Sri Saini directed the office to send the proceedings in sealed

cover to the office of learned Chief Metropolitan Magistrate after giving

one copy to the I.O. C.B.I., P.W. 61. Having recorded the confession of

Rajan Tiwary Sri Saini, P.W. 59 handed over the custody of Rajan

Tiwary to I.O. C.B.I., P.W. 61, which is evident from the evidence of

P.W. 59, paragraph 17, 29, 32. Aforesaid conduct of Sri Saini, P.W. 59

to hand over the custody of Rajan Tiwary to I.O. C.B.I. after recording

his confessional statement is contrary to Rule 7 framed by Delhi High

Court. From perusal of proceeding recorded in separate sheet, Ext. 35, it

does not appear that Sri Saini, P.W. 59 informed Rajan Tiwary that he is


255

a Magistrate. It also does not appear from the proceeding that P.W. 59

put searching questions to Rajan Tiwary about the custody from which

he has been produced and the treatment which was given to him during

the period of his remand between 13.2.1999-22.2.1999 when he was

being moved from Delhi to Purnea and back and is said to have made

disclosure statements on 18/17.2.1999 leading to recoveries vide Exts.

1/8, 1/9, 1/10. It only appears from proceeding in separate sheet, Ext. 35

that Rajan Tiwary was insisting to record his confessional statement

which is proof of coercion. It also does not appear from the proceeding

that while P.W. 59 observed safeguards under Sub-section (2) of Section

164 Cr.P.C. and informed Rajan Tiwary that he is not bound to make

confessional statement and if he makes one the confessional statement

shall be used against him in evidence, observed safeguard under Sub-

section (3) of Section 164 Cr.P.C. which require the Magistrate

recording confessional statement to lend assurance to the accused

recording confessional statement that if he chooses not to record his

confessional statement he shall not be sent back to the custody from

which he has been produced. In my opinion, Sri Saini was required to

have observed not only the safeguard under Sub-section (2) of Section

164 Cr.P.C. but also Sub-section (3) of Section 164 as both the

safeguards provided in Sub-sections (2), (3) of Section 164 Cr.P.C. are

to be read in conjunction for securing the mandate of Articles 20, 21 and


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22 of the Constitution of India. Reliance in this connection be placed

over the judgment of the Supreme Court in the case of Shivappa Vs.

State of Karnataka, (1995) 2 SCC 76 quoted with approval in Ravindra

Kumar Pal @ Dara Singh Vs. Republic of India, AIR 2011 SC 1436,

paragraphs 30, 31 and Mohammed Ajmal Mohammed Amir Kasab @

Abu Mujahid Vs. State of Maharashtra, (2012) 9 SCC 169.

178. I.O. C.B.I., P.W. 61 obtained custody of Rajan Tiwary

on 13.2.1999, after nine days of sustained interrogation leading to

disclosure, recoveries on 18/17.2.1999 produced him in the court of Sri

Saini on 22.2.1999 at 12.30 P.M. for recording his confessional

statement, whereafter Sri Saini allowed Rajan Tiwary 45 minutes time to

reflect and proceeded to record his confession at 1.15 P.M. Rajan

Tiwary having remained in C.B.I. custody for nine days in which he was

kept incommunicado, subjected to sustained interrogation leading to

disclosures, recovery on 18/17.2.1999 was granted 45 minutes for

reflection. Grant of 45 minutes for reflection in the facts and

circumstances of the case, in my opinion, does not appear to be

reasonable as 45 minutes is not enough to completely free Rajan Tiwary

from the possible influence of the C.B.I. The effective way for securing

such freedom from fear of C.B.I. was to send Rajan Tiwary to jail

custody and to grant him adequate time to consider whether he should

make confession at all. In the instant case, Rajan Tiwary after sustained


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interrogation of nine days was produced by the I.O. of C.B.I., P.W. 61

before P.W. 59 on 22.2.1999 at 12.30 P.M. for recording his

confessional statement, whereafter P.W. 59 asked the police official

producing Rajan Tiwary to go out of his court and asked Rajan Tiwary

to wait in his Chamber where none of the police official remained

present. Recording of confession began at 1.15 P.M. on the same day.

After recording the confessional statement of Rajan Tiwary the police

officer producing Rajan Tiwary i.e. I.O. C.B.I., P.W. 61 was asked to

identify Rajan Tiwary and P.W. 61 identified Rajan Tiwary by putting

his signature by the side of the signature of Rajan Tiwary, Ext. 34/1. The

confessional statement of Rajan Tiwary may not have been recorded in

presence of the C.B.I. official i.e. I.O. C.B.I., P.W. 61 who produced

him on 22.2.1999 for recording confessional statement. The statement

was recorded 45 minutes after production without granting Rajan Tiwary

reasonable, sufficient time for reflection, after recording the statement

Rajan Tiwary was not only identified by P.W. 61 but his custody was

also given to P.W. 61, there cannot be any doubt that the confessional

statement of Rajan Tiwary was recorded by P.W. 59 under the shadow

of I.O. C.B.I., P.W. 61. Rajan Tiwary was not granted reasonable and

sufficient time to relieve himself of the pressure generated by the

investigators of C.B.I. during the period of sustained interrogation

between 13.2.1999-22.2.1999 which is evident from the fact that he was


258

insisting before Sri Saini, P.W. 59 to record his confession. Aforesaid

finding is being reached in the background of the fact that P.W. 59 did

not observe the safeguards required under Sub-section (3) of Section 164

Cr.P.C. as he did not lend assurance to Rajan Tiwary that if he chooses

not to record his confessional statement he will not be remanded to

C.B.I. custody and shall be sent to judicial custody. Reliance in this

connection is placed on the judgment of the Supreme Court in the case

of Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637,

paragraph 10, Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569,

paragraph 390. In the case of Sarwan Singh (Supra) Supreme Court

observed that it would be reasonable to insist upon giving an accused

person at least 24 hours to decide whether or not he should make a

confession. In the case of Kartar Singh (supra) Supreme Court upheld

the vires of Section 15 of the Terrorist and Disruptive Activities

(Prevention) Act, 1987 as amended by TADA (Amendment) Act, 1993

providing for recording of confession by a person before a police officer

not lower in rank than a Superintendent of Police. The leading judgment

in the case of Kartar Singh (supra) was authored by Pandian, J. In

paragraphs 262, 263 Pandian, J upheld the vires of the aforesaid Act

without indicating the duration of reasonable time which should be

allowed to the accused person for reflection if he is coming forward to

record his confession. K. Ramaswamy, J in his separate judgment


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placing reliance on the judgment of Sarwan Singh (supra) in paragraph

390 observed ―it is settled law that at least 24 hours should be given to

the accused to decide whether or not he should make a confession‖. The

submission of the counsel for the C.B.I. that the view of Ramaswamy, J

is a minority view does not appear to be correct as in the majority

opinion Pandian, J has not indicated the duration of time which should

be allowed to an accused for reflection who is coming forward to record

his confession. Similarly, reliance placed by the counsel for the C.B.I.

over the judgment in the case of Shankaria Vs. State of Rajasthan

(supra) to justify reflection time of 45 minutes to Rajan Tiwary is also

misconceived. Perusal of judgment in the case of Shankaria (supra)

would indicate that Shankaria was produced before learned Magistrate

on 12.6.1974 who lodged him in judicial lock up. On 13.6.1974

application was filed before Judicial Magistrate requesting him to record

the confessional statement of Shankaria. The Magistrate thereafter

ordered that Shankaria be produced from judicial lock up on 14.6.1974

at 7 A.M. for recording his confession. Shankaria was accordingly,

produced before the Magistrate for recording his confession on

14.6.1974 at 7 A.M. The Magistrate after putting questions to Shankaria

about the voluntary nature of the statement allowed Shankaria some time

for reflection and proceeded to record his confession from 8.45 A.M.

Supreme Court in the background of the fact that Shankaria was sent by


260

the Magistrate to judicial lock up on 12.6.1974 wherefrom he was

produced to record his confession on 14.6.1974 at 7 A.M. and his

confession was recorded from 8.45 A.M. onwards rejected the

submission of Shankaria that he was not granted sufficient time for

reflection. In the case in hand, custody of Rajan Tiwary was obtained by

P.W. 61 on 13.2.1999 whereafter Rajan Tiwary was moved from Delhi

to Purnea and back, kept incommunicado, subjected to sustained

interrogation vide paragraph 57 of the evidence of P.W. 61 and then

produced for recording his confession before P.W. 59 on 22.2.1999 at

12.30 P.M. who allowed Rajan Tiwary one hour time for reflection but

proceeded to record his confession at 1.15 P.M., which is indicative of

the fact that Rajan Tiwary was not allowed reasonable and sufficient

time for reflection before recording his confession by P.W. 59.

179. Failure to observe the safeguard provided under Sub-

section (3) of Section 164 Cr.P.C. and to lend assurance to Rajan Tiwary

that in case he chooses not to make confession he shall not be remanded

to C.B.I. custody, failure to grant Rajan Tiwary sufficient, reasonable

time for reflection, coupled with the fact that after recording confession

of Rajan Tiwary his custody was handed over to I.O. C.B.I. who

produced him for recording confession violating Rule 7 of the Delhi

High Court Rules, in the opinion of this Court cannot be condoned with

reference to the mandate of Section 463 Cr.P.C. as from the entire


261

evidence of the prosecution including the evidence of P.Ws. 59, 61 it

does not appear as to why the prosecution did not comply the

requirement of Sub-section (3) of Section 164 Cr.P.C. and lend

assurance to Rajan Tiwary that in case he chooses not to record his

confession his custody shall not be handed over to the C.B.I. From the

prosecution evidence it also does not appear as to why Rajan Tiwary

after his production by the I.O. C.B.I. on 22.2.1999 for recording his

confession was not granted sufficient, reasonable time for reflection by

remanding him to jail custody with direction to produce him on the next

day for recording his confession. It also does not appear from the

prosecution evidence as to why custody of Rajan Tiwary was handed

over to I.O. C.B.I., P.W. 61 after he recorded his confession violating

Rule 7 of the Delhi High Court Rules.

180. According to the evidence of P.W. 59 in paragraph 22

the confessional statement of Rajan Tiwary is in continuation from page

nos. 3 to 6 of Ext. 35. Signature of Rajan Tiwary was obtained on page

nos. 3, 4 and 5 of Ext. 35 but perusal of Ext. 35 indicates that signature

of Rajan Tiwary is not taken on page nos. 3, 4 and 5 as claimed by P.W.

59. Though Rajan Tiwary is said to have recorded his confessional

statement Ext. 35 on 22.2.1999 but the same was produced in court on

17.11.2005 without there being any explanation for such delay. In this

connection, P.W. 59 in paragraph 95 of his evidence further stated that


262

C.B.I. officials never approached him for making fair copy of the

confessional statement of Rajan Tiwary for the purpose of supply to the

accused persons.

181. For the reasons indicated above in paragraphs 177 to

180, it is not safe to rely on the confessional statement of Rajan Tiwary,

Ext. 35 when the same has been retracted by Rajan Tiwary after he was

remanded to judicial custody on 23.2.1999 in Tihar Jail vide undated

retraction which was forwarded by the Deputy Superintendent, Central

Jail No. 5, Tihar, New Delhi under letter no. 181 dated 1.3.1999 to Chief

Metropolitan Magistrate, Delhi and was filed before this Court by Rajan

Tiwary by way of supplementary affidavit dated 28.9.2004 in Cr. Misc.

No. 10646 of 2003 and submission to the contrary made by the counsel

for the C.B.I. noted in paragraph 126 of this judgment that on 9.3.1999

Rajan Tiwary was produced from judicial custody in the court of Chief

Metropolitan Magistrate Sri R.K. Gauba with his Advocate Sri S.A.

Hasmi but no retraction was made by him is incorrect.

182. It may be stated here that confessional statement of an

accomplice is admissible under the Indian Evidence Act but requires

corroboration in material particulars by other independent evidence. This

Court in paragraph 176 above doubted the ocular, found documentary

evidence of no consequence, does not feel confident to rely on the

confessional statement, Ext. 35 for the reasons given in paragraphs 177


263

to 181 above.

183. Submission of the counsel for the appellant Rajesh

Ranjan @ Pappu Yadav with regard to the vires of Section 30 of the

Evidence Act in the light of the 69th

report of the Law Commission of

India and the provisions of the Constitution is not being considered in

the present case in view of my finding that in the facts of the present

case it is unsafe to rely on the confessional statement made by Rajan

Tiwary.

184. Now we proceed to consider the validity of the custody

of Rajan Tiwary obtained by P.W. 61 on 13.2.1999 vide endorsement

―received accused in muffled condition with warrant‖ made by P.W. 61

in the margin of remand application dated 13.2.1999, Ext. F filed by S.I.

Palvinder Singh, Special Team Crime Branch in the court of Duty

Metropolitan Magistrate, Patiala House in connection with R.K. Puram

P.S. Case No. 122/99 dated 12.2.1999 under Section 25 of the Arms Act

praying inter alia to remand Rajan Tiwary for 14 days judicial custody in

the said case. It appears after receipt of the remand application dated

13.2.1999 the Magistrate passed orders ―received accused from police

custody remanded to judicial custody till 26.2.1999‖, which is evident

from remand application dated 13.2.1999 Ext. F. It, however, appears

from copy of remand application dated 13.2.1999, Ext. F/4 filed by S.I.

Palvinder Singh in connection with R.K. Puram P.S. Case No. 122/99,


264

which is addressed to Sri K.S. Mohi, Metropolitan Magistrate, Patiala

House, Delhi praying inter alia for judicial custody of Rajan Tiwary in

R.K. Puram P.S. Case No. 122/99 for 14 days. Magistrate having

considered the prayer passed the same order ―received accused from

police custody remanded to judicial custody till 26.2.1999‖, Ext. F/4

does not contain endorsement by P.W. 61 in the margin of remand

application ―received accused in muffled condition with warrant‖.

Having perused the aforesaid two remand application, Exts. F, F/4 filed

in R.K. Puram P.S. Case No. 122/99 and the order dated 13.2.1999

passed by Metropolitan Magistrate ―received accused from police

custody remanded to judicial custody till 26.2.1999 including the fact

that endorsement made by P.W. 61 ―received accused in muffled

condition with warrant‖ was not made by P.W. 61 on Ext. F/4, this Court

asked the counsel for the C.B.I. to produce the order on the basis of

which P.W. 61 received accused Rajan Tiwary in muffled condition with

warrant on 13.2.1999 as the order of the Magistrate which was passed on

petition, Exts. F, F/4 was only to the effect that received accused from

police custody remanded to judicial custody till 26.2.1999. Counsel for

the C.B.I. then submitted that before Rajan Tiwary could be lodged in

judicial custody in Tihar Jail pursuant to order dated 13.2.1999 passed

by Sri K.S. Mohi/Duty Magistrate another order was passed on the same

day i.e. 13.2.1999 (Second Saturday) by Duty Magistrate on the basis of


265

disclosure made by Rajan Tiwary to Delhi police authorizing his custody

to C.B.I. for 10 days i.e. until 23.2.1999. In the light of the subsequent

order passed by the Duty Magistrate on the same day P.W. 61 received

Rajan Tiwary in muffled condition with warrant and made such

endorsement on the petition dated 13.2.1999, Ext. F. In the light of the

aforesaid submission of the counsel for the C.B.I. this Court directed the

learned counsel for the C.B.I. to produce the subsequent order dated

13.2.1999 passed by the Duty Magistrate authorizing C.B.I. custody of

Rajan Tiwary until 23.2.1999. Counsel for the C.B.I. then submitted that

the subsequent order passed by the Duty Magistrate on 13.2.1999 may

be available in the record of R.K. Puram P.S. Case No. 122/99. To verify

the aforesaid submission of the learned counsel for the C.B.I. this Court

under order dated 12.2.2013 called for the records of R.K. Puram P.S.

Case No. 122/99 which was received in this Court on 18.2.2013. With

the assistance of the counsel for the parties records of R.K. Puram P.S.

Case No. 122/99 was examined but neither the original nor the copy of

the subsequent order dated 13.2.1999 passed by the Duty Magistrate

authorizing C.B.I. custody of Rajan Tiwary until 23.2.1999 was found in

the records of R.K. Puram P.S. Case No. 122/99. Learned counsel for

the C.B.I. then submitted that copy of subsequent order dated 13.2.1999

may not be available in the records of R.K. Puram P.S. Case No. 122/99

but copy thereof having been filed by Rajan Tiwary himself as


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Annexure-8 series to the supplementary affidavit filed by him in Cr.

Misc. No. 10646 of 2003 (Rajan Tiwary Vs. The State of Bihar through

C.B.I.) before this Court, there should not be any dispute/doubt about the

existence of the order dated 13.2.1999. Perusal of supplementary

affidavit dated 28.9.2004 filed by Rajan Tiwary in Cr. Misc. No. 10646

of 2003 do indicate that copy of order dated 13.2.1999 authorising C.B.I.

custody of Rajan Tiwary until 23.2.1999 has been annexed with the said

affidavit. From perusal of Xerox copy of the order dated 13.2.1999 filed

along with supplementary affidavit dated 28.9.2004 in Cr. Misc. No.

10646 of 2003 on 29.9.2004 it appears that said order was passed in first

information No. RC 12(S)/98-SIC-IV/New Delhi. It, however, does not

appear from perusal of the said order as to who is the author of the order

dated 13.2.1999 authorising C.B.I. remand of Rajan Tiwary until

23.2.1999. Another Xerox copy of order dated 13.2.1999 authorising

C.B.I. remand of Rajan Tiwary until 23.2.1999 produced by learned

counsel for C.B.I. during hearing of this appeal indicates that the said

order was passed in R.K. Puram P.S. Case No. 122/99 but from perusal

of said order also it does not appear as to who is the author of the order

dated 13.2.1999 authorising C.B.I. remand of Rajan Tiwary until

23.2.1999. Certified copy of the order dated 13.2.1999 authorising C.B.I.

remand of Rajan Tiwary until 23.2.1999 being not available either in the

record of R.K. Puram P.S. Case No. 122/99 or in the record of RC


267

12(S)/98-SIC-IV/New Delhi, it is difficult for this Court to uphold the

contention of the C.B.I. that as Xerox copy of the order dated 13.2.1999

authorising C.B.I. remand of Rajan Tiwary until 23.2.1999 has been

filed by Rajan Tiwary himself there cannot be any doubt about the

existence of the said order. It is observed that Rajan Tiwary being in

custody his pairvikar filed copy of order dated 13.2.1999 before this

Court by way of supplementary affidavit on 29.9.2004 in Cr. Misc. No.

10646 of 2003 but no sooner Rajan Tiwary discovered the fact that order

dated 13.2.1999 authorising his remand to C.B.I. custody until 23.2.1999

is not in existence he obtained certified copy of remand application, Ext.

F, F/4 and submitted before the trial court that forgery has been

committed in judicial record by writing Duty Magistrate after cutting

K.S. Mohi at the top of remand application, Ext. F and thereafter his

custody obtained by I.O., C.B.I., P.W. 61 on 13.2.1999 by writing in the

margin of Ext. F ―received accused in muffled condition with warrant‖.

Copy of Ext. F was also shown to Special Public Prosecutor, C.B.I. on

21.5.2007 when remand application was admitted in evidence vide Ext.

F. The trial court noticed the aforesaid submission and found in

paragraph 41 of its judgment that in Ext. F after cutting K.S. Mohi Duty

Magistrate has been written and then observed that enquiry about cutting

and writing of Duty Magistrate in Ext. F be made by Delhi Court in

whose record the forgery was committed. C.B.I. authorities have not


268

challenged the aforesaid finding of the trial court.

185. Now I come to consider the validity of the order dated

15.9.1999 passed by the Special Magistrate, C.B.I., Patna discharging

F.I.R. named accused i.e. Bipin Singh @ Bipin Chaudhary, Jawahar

Yadav, Abdul Sattar, Diwakar Chaudhary and Pappu Dev of K.Hat P.S.

Case No. 230/98 sent up for trial by the Purnea police under charge

sheet no. 210/98 dated 20.9.1998 in the court of Chief Judicial

Magistrate, Purnea on the basis of which Chief Judicial Magistrate,

Purnea having taken cognizance of the offence summoned those accused

to face trail under order dated 23.9.1998. Investigation of K.Hat P.S.

Case No. 230/98 was entrusted to C.B.I. by the Government of India

under notification dated 28.9.1998 whereafter for administrative

convenience C.B.I. registered RC 12(S)/98-SIC-IV/New Delhi

incorporating the contents of F.I.R. of K. Hat P.S. Case No. 230/98 and

entrusted its investigation to Sri N.S. Kharayat, Dy. S.P., C.B.I, P.W. 61

who along with his team proceeded with the investigation and submitted

charge sheet dated 10.5.1999 and supplementary charge sheet dated

19.8.1999 under Sub-section (8) of Section 173 Cr.P.C. finding the

accusation true against the appellants and two others and not true against

Bipin Singh @ Bipin Chaudhary, Jawahar Yadav, Abdul Sattar, Diwakar

Chaudhary and Pappu Dev who were sent up for trial by the Purnea

police under charge sheet dated 20.9.1998 filed under Sub-section (2) of


269

Section 173 Cr.P.C and summoned to face trial by Chief Judicial

Magistrate, Purnea under order dated 23.9.1998. In the light of the

findings recorded by P.W. 61 in charge sheet dated 10.5.1999 that

accusation was not true against Bipin Singh @ Bipin Chaudhary,

Jawahar Yadav, Abdul Sattar, Diwakar Chaudhary and Pappu Dev P.W.

61 not only recommended for their discharge but also filed separate

application dated 15.9.1999 before the Special Magistrate C.B.I., Patna

for discharge of accused persons sent up for trial by the Purnea police

under charge sheet dated 20.9.1998. Special Magistrate C.B.I., Patna

under order dated 15.9.1999 discharged the accused sent up for trial by

the Purnea police under charge sheet dated 20.9.1998. Aforesaid order

dated 15.9.1999 passed by the Special Magistrate C.B.I., Patna is wholly

without jurisdiction. At the relevant time competent Investigating

Agency, i.e. Purnea police on the basis of the material collected during

investigation found the accusation true against five F.I.R. named

accused persons of K.Hat P.S. Case No. 230/98, submitted charge sheet

dated 20.9.1998 under Sub-section (2) of Section 173 Cr.P.C on the

basis of which competent court i.e. Chief Judicial Magistrate, Purnea

summoned the five F.I.R. named accused persons under order dated

23.9.1998 to face the trial. I.O. C.B.I., P.W. 61 while further

investigating K.Hat P.S. Case No. 230/98 did not find accusation true

against the five F.I.R. named accused i.e. Bipin Singh @ Bipin


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Chaudhary, Jawahar Yadav, Abdul Sattar, Diwakar Chaudhary and

Pappu Dev of K.Hat P.S. Case No. 230/98. P.W. 61 ought not to have

recommended for their discharge under charge sheet dated 10.5.1999 as

also filed petition dated 15.9.1999 for such purpose. Similarly C.B.I.

Magistrate while committing RC 12(S)/98-SIC-IV/New Delhi for its

trial by Additional Sessions Judge-XI cum C.B.I. Court, Patna ought not

to have discharged the F.I.R. named accused under order dated

15.9.1999, which is wholly without jurisdiction. In any case, the trial

court i.e. Additional Sessions Judge-XI cum C.B.I. Court, Patna after

receipt of the records of K. Hat P.S. Case No. 230/98 from Chief

Judicial Magistrate, Purnea on 7.1.2002 in compliance of the order of

the High Court dated 11.12.2001 passed in Cr. Revision No. 883 of 2001

should have summoned Bipin Singh @ Bipin Chaudhary, Jawahar

Yadav, Abdul Sattar, Diwakar Chaudhary and Pappu Dev the five F.I.R.

named accused persons of K. Hat P.S. Case No. 230/98 to face trial

along with these appellants. Trial court having tried the appellants alone

who have been sent up for trial by the C.B.I. under charge sheet dated

10.5.1999 and supplementary charge sheet dated 19.8.1999 filed under

Sub-section (8) of Section 173 Cr.P.C and not the five F.I.R. named

accused of K. Hat P.S. Case No. 230/98 who were sent up for trial by the

Purnea police under charge sheet dated 20.9.1998 filed under Sub-

section (2) of Section 173 Cr.P.C and summoned to face trial under


271

order dated 23.9.1998 has committed gross injustice and illegality as the

five F.I.R. named accused persons against whom the accusation was

found true by the competent Investigating Agency i.e. Purnea police

under Sub-section (2) of Section 173 Cr.P.C on the basis of which those

accused persons were summoned to face trial by the competent court i.e.

Chief Judicial Magistrate, Purnea under order dated 23.9.1998 have been

let off on the recommendation of the Investigating Agency which was

entrusted with further investigation of the case. Neither the agency

further investigating the case i.e. C.B.I. nor the C.B.I. Magistrate, Patna

had the jurisdiction to let off five F.I.R. named accused sent up for trial

by the Purnea police under Sub-section (2) of Section 173 Cr.P.C. and

summoned to face trial by the competent court under order dated

23.9.1998. After receipt of the record of K. Hat P.S. Case No. 230/98 in

compliance of the order of the High Court dated 11.12.2001 passed in

Cr. Revision No. 883 of 2001 it was the bounden duty of the Trial Judge

to have issued fresh summons to those who were erroneously let off by

the C.B.I. Magistrate, Patna under order dated 15.9.1999 as neither the

Delhi High Court under order dated 5.5.1999 passed in Cr. Writ Petition

No. 258 of 1999 nor this Court under order dated 20.3.2002 reported in

2002 (4) PLJR 327 referred to in paragraphs 91, 92 and 93 of this

judgment approved discharge of five F.I.R. named accused of K. Hat

P.S. Case No. 230/98. Reliance in this connection be placed over the


272

judgment of the Supreme Court in the case of T.T. Antony Vs. State of

Kerala and others, AIR 2001 SC 2637, Rama Chaudhary Vs. State of

Bihar, AIR 2009 SC 2308 and Vinay Teyagi Vs. Irshad Ali @ Deepak

and others., 2013 CRI.L.J. 754.

186. There is yet another aspect of the matter. The trial court

in the light of the evidence recorded by A.K. Jha, P.W. 56 in court, who

scribed the fardbeyan dated 14.6.1998, Ext. 27, recorded the further

statement of the informant, P.W. 8 and the statement of the two eye

witnesses, P.Ws. 9, 10 during the night between 14-15.6.1998 as also

took various other steps in investigation and then filed charge sheet no.

210 dated 20.9.1998 against the five F.I.R. named accused persons as

also in the light of the evidence of P.W. 61 who did not find fault with

the investigation conducted by P.W. 56 (vide paragraph 216 of his

evidence) and further did not give reason in his charge sheet for not

accepting the charge sheet submitted by Purnea police (vide paragraph

235 of his evidence), exercising its power under Section 319 Cr.P.C.

should have summoned the accused let off by the Special Magistrate,

C.B.I. under order dated 15.9.1999. In the absence of accused persons let

off by the C.B.I. Magistrate the trial of the appellants is an abuse of the

process of the court as other set of accused sent up for trial for the same

offence have been let off by the C.B.I. Magistrate under order dated

15.9.1999 on the recommendation of another Investigating Agency


273

without undergoing the due process of trial which has occasioned in

failure of justice. It was for the court to decide the correctness of the

investigation conducted by the two separate Investigating Agency fixing

the identity of the two different set of accused, one set of accused named

in the F.I.R. and the other set of accused named for the first time before

the C.B.I. authorities. By trying these appellants alone after letting off

the other set of accused named in the F.I.R. the dice has been loaded

exclusively against these appellants which has occasioned in failure of

justice.

187. In view of my findings and observations in paragraphs

176 to 182, 184 to 186 above, the three appellants deserve to be granted

benefit of doubt. The impugned judgment and the order of sentence

dated 14.02.2008 is set aside. Appellant Rajesh Ranjan @ Pappu Yadav

is directed to be released forthwith, if not required in any other case.

Appellants Anil Kumar Yadav and Rajan Tiwary are discharged from

their bail bonds.

Rajesh/AFR

(V.N. Sinha, J)

Amaresh Kumar Lal, J : I agree.

(Amaresh Kumar Lal, J)

Documents

IN THE HIGH COURT OF JUDICATURE AT PATNA High Court CR. APP (DB) No.418 of 2008 dt.17-05-2013 2 Kumar Ravi, Shashi Shekhar Kumar Prasad, Advocates. (For P.W. 9 in all appeals) : M/s