Allowed

Basudeo Kumar @ Basudeo Yadav v. State of Bihar

Patna HC1 Apr 2014CR. APP (DB)/565/2009

Case brief

AI extract

What is this about?

The High Court allowed criminal appeals by the accused challenging their conviction for abduction and murder. The Court held that prosecution evidence was grossly inadequate, as the headless body was not reliably identified and key material evidence was generic. Convictions based on inadmissible confessions and weak circumstantial particulars were set aside with benefit of doubt.

What did the court decide?

Impugned conviction and sentences set aside; appellants acquitted of the charges; Bail bond cancelled and sureties discharged.

Basudeo Kumar @ Basudeo Yadav Vs State of Bihar — Murder and Culpable Homicide | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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CRIMINAL APPEAL (DB) NO. 562 OF 2009 WITH

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CRIMINAL APPEAL (DB) NO. 565 OF 2009 (AGAINST THE JUDGMENT OF CONVICTION, DATED 30^TH APRIL, 2009, AND THE ORDER OF SENTENCE, DATED 05^TH MAY, 2009, PASSED BY SHRI AJIT KUMAR SINHA, ADDITIONAL SESSIONS JUDGE VIII, PATNA IN SESSIONS TRIAL NO. 659 OF 2007, ARISING OUT OF DANAPUR POLICE STATION CASE NO. 445 OF 2006) =========================================================== AMAR NATH JHA, SON OF SHRI SANTOSH KUMAR JHA, RESIDENT OF VILLAGE MADANPUR, POLICE STATION – JHANJHARPUR (R.S.), DISTRICT MADHUBANI .... .... Appellant ( IN CR. APP.(DB) No. 562/2009) Versus

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THE STATE OF BIHAR

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.... .... Respondent ( IN CR. APP.(DB) No. 562/2009)

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WITH

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BASUDEO KUMAR @ BASUDEO YADAV, SON OF MUNGA LAL YADAV, RESIDENT OF VILLAGE KOSIYAMA, POLICE STATIONPALI, DISTRICT JEHANABAD .... .... Appellant ( IN CR. APP.(DB) No. 565/2009) Versus THE STATE OF BIHAR

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.... .... Respondent ( IN CR. APP.(DB) No. 565/2009) =========================================================== Appearance : (In BOTH THE APPEALS) For the Appellant/s : Mr. Surendra Singh, Senior Advocate Mr. Akhileshwar Prasad Singh, Senior Advocate Mr. Abhishek Anand, Advocate Mr. Surya Swetabh, Advocate For the Respondent/s : Mr. Ashwini Kumar Sinha, A.P.P. Mr. S. C. Mishra, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI and HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE I. A. ANSARI) Date: 01-04-2014

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I. A. Ansari & The facts of a case may stir emotion of a Court. S. P. Singh, JJ.

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Patna High Court CR. APP (DB) No.562 of 2009 dt.01-04-2014

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Nevertheless, duty of the Court is to marshal evidence dispassionately and determine, in the face of the materials brought on record, as to whether any offence is proved to have been committed and, then, decide if the person, accused of having committed an offence, has been proved, beyond reasonable doubt, guilty of the offence, which he is alleged to have committed.

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2 . The rudimentary principle, indicated above, appears to have escaped the notice of the learned trial Court, in the present appeals, which have arisen out of the judgment, dated 30^th April, 2009, passed, in Sessions Trial No. 659 of 2007/06 of 2009, by the learned Additional Sessions Judge VIII, Patna, convicting the two accused-appellants, namely, Amarnath Jha ( A-1) and Basudeo Yadav ( A-2) under Sections 364A, 302, 201 and 120B of the Indian Penal Code and, in consequence of their conviction under Section 364A of the Indian Penal Code, both the accused-appellants have been, under the impugned order, dated 05.05.2009, sentenced to suffer imprisonment for life with fine of Rs. 25,000/- each and, in default of payment of fine, suffer rigorous imprisonment for a period of three months and to also suffer, in consequence of their conviction under Section 302 of the Indian Penal Code, imprisonment for life. The two accused-appellants stand further sentenced, for their conviction under Section 201 of the Indian Penal Code, to

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suffer rigorous imprisonment for a period of 7 (seven) years. In addition thereto, the two appellants herein stand sentenced to undergo, for their conviction under Section 120B of the Indian Penal Code, rigorous imprisonment for a period of 10 (ten) years. All the sentences have been directed to run concurrently.

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3. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus:

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(i) The appellant, Amarnath Jha (A-1) , and Arbind Kumar Jha were contemporaries in school at Patna. In the year 1998, Arbind Kumar Jha shifted to Delhi in order to pursue higher studies and started residing in room No. B-4 of a lodge, at Christian Colony. Shekharji Mishra (PW 8) was room-mate of Arbind and Tauquir Alam (PW 9) became a friend of Arbind. When A-1 went to Delhi for higher studies, he ( A-1), being a friend of Arbind, used to visit to Arbind at the said lodge.

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(ii) Amarnath Jha ( A-1) and Basudeo Yadav ( A-2 ) entered into a criminal conspiracy along with accused Sadhu Yadav (since absconder) and accused Vikash Yadav (since absconder) to abduct Arbind for ransom . Pursuant to this conspiracy, A-1 and A-2 , on 25.07.2006, hired a flat, in Kalyan Vihar Colony, Patna, belonging to Ram Briksh Singh (PW 1). Having hired the flat, A-1 and A-2 brought their luggage to the said flat on 27.07.2006.

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(iii) On 30.07.2006, Arbind informed Shekharji Mishra (PW 8), his room-mate in Christian Colony, Delhi, that he (Arbind Kumar Jha) was going to Cannaught Place on having been called, on telephone, by A-1 . Arbind also informed PW 8 that he would be going to Patna with A-1 . Since thereafter, Arbind was never seen alive. On the same very day, i.e. on 30.07.2006, from Arbind’s mobile, an SMS was received by Shekharji Mishra (PW 8), which read, “ I am going to Patna and come back in one or two days” .

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(iv) On 30.07.2006 itself, at about 8:00-9:00 PM, Satish Chandra Jha (PW 11), father of Arbind Kumar Jha, received a call from Arbind, the call having been made from Delhi. On 31.07.2006, at around mid-day, Renu Devi (PW 10), mother of Arbind, received two telephone calls. However, on each occasion, the caller merely said ‘ MAA’ and, thereafter, the telephone line was disconnected. Renu Devi (PW 10) recognized the voice as that of her son, Arbind, but she received, thereafter, no further calls from Arbind.

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(v) Having enticed Arbind with promise to enable him (Arbind) have sex with a girl at Patna, A-1 took Arbind to his rented accommodation, in the house of Ram Briksh Singh (PW 1), where Arbind was given a sedative in a glass of beer and when Arbind became unconscious, the two appellants, along with co-accused, Sadhu Yadav and Vikash Yadav, severed

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Arbind’s head and disposed of his head and the body at two different locations.

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(vi) On the following day, i.e. on 01.08.2006, a headless body was found, in Teshlal Verma Nagar, near the house of one Johan Bind (PW 5), the headless body having been found wrapped in plastic sheets and tied with plastic ropes. On receiving the information about the said headless body, Sub-Inspector of Police, Jitendra Kumar Singh (PW 12), Station House Officer, Rupaspur Police Station, went to the spot, held inquest over the dead body, which was also subjected to post mortem examination. Having, however, sent the said headless dead body, for post mortem examination, PW 12 sent a written report (Exhibit-10) to Danapur Police Station and, based on the said written report (Exhibit-10), Danapaur Police Station Case No. 445 of 2006 was registered, under Sections 302/201/34 of the Indian Penal Code, against unknown persons .

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(vii) Post mortem examination, which was conducted by Dr. Parmanand Kumar (PW 14), revealed that the death was caused by shock and hemorrhage arising out of decapitation, Exhibit-18 being the post mortem report .

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(viii) A photograph of the headless dead body was taken and the headless dead body was cremated without the said headless dead body having been identified by anyone. On

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01.08.2006, at about 7:00 AM, A-1 went to the lodge, where Arbind used to reside, and enquired from Shekharji Mishra (PW 8) and Tauquir Alam (Pw 9) about Arbind’s whereabouts. On the query so being made by A-1 , Shekharji Mishra (PW 8) asked A-1 if Arbind had not gone to Patna with him ( A-1 ). On being so questioned, the face of A-1 appeared worried and anxious. A-1 , immediately, denied that he and Arbind had gone to Patna. Thereafter, A-1 and Tauquir Alam (PW 9) went out to have breakfast.

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(ix) On the other hand, Shekharji Mishra (PW 8) telephoned Satish Chandra Jha (PW 11), father of Arbind, on 01.08.2006 itself, and asked him if Arbind had reached Patna. From the reply of Satish Chandra Jha (PW 11), Shekharji Mishra (PW 8) was surprised to learn that Arbind had not reached Patna. Similarly, A-1 , too, rang up and enquired, in the evening, from PW 11, if Arbind was in Patna. A-1 was informed by Satish Chandra Jha (PW 11) that Arbind had not come to Patna. As the whereabouts of Arbind remained not known, Satish Chandra Jha (PW 11) made queries from his relatives and, thereafter, went to Delhi on 03.08.2006.

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(x) Though PW 11 made enquiries from Arbind’s friends about Arbind, he (PW 11) received no clear information, whereupon he (PW 11) lodged, on 06.08.2006, a missing report as regards Arbind, at Morris Nagar Police Station, Delhi.

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Based on this information, F.I.R. No. 108 of 2006 was registered under Section 365 of the Indian Penal Code.

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(xi) On 04.08.2006, at about 9:00 PM, Sadhana Jha (PW 7), sister of Arbind, received a telephone call, at Patna, from a stranger, who informed her (PW 7) that Arbind was in his custody and demanded a ransom of Rs. 10,00,000/-. This demand was conveyed by Sadhana Jha (PW 7) to her father, Satish Chandra Jha (PW 11), who was in Delhi at the relevant point of time.

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(xii) A report, as regards the demand for said ransom said to have been received by Sadhana Jha (PW 7), sister of Arbind, was claimed to have been reported to polic at Patna; but no such report has been proved. Satish Chandra Jha (PW 11), too, did not lodge any report, at Delhi, regarding ransom , though he continued his stay in Delhi till 15.08.2006.

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(xiii) Inspector Rakesh Tyagi, Morris Nagar Police Station, Delhi, undertook investigation of the case (F.I.R. No. 108 of 2006), registered on the basis of the information received, as indicated above, at Morris Nagar Police Station, Delhi, from PW 11, and took A-1 into custody on 15.08.2006 and, on 16.08.2006, A-1 spoke, over phone, to Satish Chandra Jha (PW 11), who had, by that time, reached Patna and confessed to Satish Chandra Jha (PW 11) that he ( A-1 ), along with three co-accused aforementioned, had abducted Arbind for

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ransom and murdered him. This oral confession was allegedly made by A-1 , while he was in the police custody at Morris Nagar Police Station.

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(xiv) On 18.08.2006, Delhi Police brought A-1 to Patna and took him to the house of Ram Briksh Singh (PW 1). The flat, said to have been hired by A-1 and A-2 , was found locked. The lock was broken and police seized, by seizure list (Exhibit-12), one rope made of coconut fibre, one iron saw, one pair of jeans, two caps of beer bottles, cigarette packets, butts of cigarette and one pair of black slippers.

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(xv) On 18.08.2006, Basudeo Yadav ( A-2 ) was arrested at village Mithapur from the house of Santosh and Ramlal. Upon his arrest, A-2 was brought to Danapur Police Station, where Ashtam Paswan (PW 13), Assistant SubInspector of Police, Rupaspur Police Station, recorded, on 19.08.2006, at 07:45 AM, confession (Exhibit-13) made by A2 . In his alleged confessional statement (Exhibit-13), A-2 disclosed that the skull would be found lying on the land of one P. N. Jha in Ambika Vihar Colony. Police visited the spot and recovered therefrom one skull along with one ganji (vest) and one gamacha (country-towel), vide seizure list (Exhibit-14) at 11:50 AM, on 19.08.2006. However, no witness identified the skull as that of Arbind nor did any witness identify the said ganji and gamacha as apparels belonging to Arbind.

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(xvi) A-1 was taken back to Delhi, where PW 13 had arrested him on 15.09.2006, and, upon being brought to Patna, he was kept incarcerated at Danapur Police Station, where Ashtam Paswan (PW 13) recorded his confession (Exhibit-16) on 25.09.2006.

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(xvii) The pair of slippers, seized from the flat, vide seizure memo (Exhibit-12), were put up for Test Identification Parade, on 15.11.2008, by Block Development Officer and Satish Chandra Jha (PW 11) identified the said pair of slippers as belonging to Arbind.

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(xviii) The photograph, which had been taken of the said headless dead body, was shown by police to Satish Chandra Jha (PW 11), at Rupaspur Police Station, and was identified by PW 11 as being the headless dead body of his son. This identification was made on the basis of scanty hair on chest. No other mark of identification was given by PW 11. The said photograph and its negative were, however, not brought and proved in Court.

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(xix) The jeans, seized from the flat by Exhibit-12, the ganji and gamacha , found along with the skull, were sent for serological test. The forensic laboratory’s report (Exhibit20) indicated that the ganji and jeans had human blood of group-A; while gamacha had human blood of group-B. There is, however, no evidence as to what the blood group of Arbind

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was or what is the blood group of any of the appellants.

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4. At the trial, when charges, under Sections 364A, 302, 201 and 120B of the Indian Penal Code, were framed against the two appellants, both of them pleaded not guilty thereto.

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5. In support of their case, prosecution examined altogether 16 witnesses. The appellants were, then, examined under Section 313 (1) (b) of the Code of Criminal Procedure and, in their examinations aforementioned, the two appellants denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. The defence, too, adduced evidence by examining two witnesses.

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6. Having, however, found the two appellants guilty of the offences charged with, they have been convicted accordingly and sentences have been passed against them as have been mentioned above.

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7. We have heard Mr. Surendra Singh and Mr. Akhileshwar Prasad Singh, learned Senior Counsel appearing on behalf of the appellants, and Mr. Ashwini Kumar Singh and Mr. S. C. Mishra, learned Additional Public Prosecutor, appearing on behalf of the State.

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8. While considering the present appeals, let us, first, take note of the evidence of the doctor (PW 14), who had,

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admittedly, conducted post mortem examination, on 01.08.2006, at 2:00 PM, on a headless dead body and found the following ante mortem injuries.

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“Two abrasion – one in right wrist and one in left wrist, ½” wide;

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Two abrasion around right and left ankle, 1” wide, Body without neck,

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Incised wound at the root of neck cutting all structure oesophagous, crachea, muscles of neck, all vessels of neck, all vessels and nerve of neck with vertebra with it contents at level 1 of 6^th cervical vertebra

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On dissection, internal finding,

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Stomach contain 3 ml. of semi-digested food. Heard – empty of left side and full on right side Urinary bladder – empty.

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9. All other organs were, according to the doctor, found pale and intact and time since death was between 6 and 36 hours before examination.

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10. In the opinion of the doctor, the cause of death was shock and hemorrhage, which resulted from the ante mortem injuries, the ante mortem injuries having been caused by sharp cutting weapon.

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11. PW 12 has proved the post mortem report (Exhibit-18) and, in his cross-examination, he has stated that the margin of incised wound was regular and sharp.

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12. The findings of the doctor and his opinion with regard to the nature of injuries, which were found on the said

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dead body, the cause of death as also the weapon, which might have been used, were not disputed at the trial. We, too, do not notice anything inherently incorrect or improbable in the findings of the doctor or his opinion with regard to the nature of injuries, cause of death and the kind of weapon used.

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13. Bearing in mind that a headless dead body, which had been subjected to post mortem examination , was found to have ante mortem injuries, as mentioned above, leading to death of the person concerned, let us, now, consider the various aspects emerging from the evidence on record in order to determine if the charges can be said to have been brought home, legally and validly, against the accused-appellants.

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14. There are, broadly, speaking three distinct circumstances, which the prosecution have relied upon in order to secure conviction of the two appellants. These circumstances are: (i) demand for ransom is claimed to have been made; (ii) Arbind is claimed to have been killed and his headless dead body was found, which came to be identified as the dead body of Arbind. In order to prove the identity of the said dead body and the claim that Arbind was put to death, some other circumstances, such as, recovery of a pair of black slippers from the flat, owned by Ram Briksh Singh (PW 1), is sought to be taken aid of; and (iii) the confession , said to have been made by A-1 , while in the custody of police, to Satish Chandra

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Jha (PW 11), father of Arbind.

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15. In the backdrop of the various incriminating circumstances, which the prosecution have relied upon, let us, first, determine the question as to whether the prosecution could satisfactorily prove that a demand for ransom had been raised and whether the demand for ransom , if so made as alleged, can be attributed to both or any of the two appellants.

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16. With regard to the above, it is noticeable that the solitary witness, examined by the prosecution to prove the alleged demand for ransom, is Sadhana Jha (PW 7), sister of Arbind. The evidence of PW 7 is to the effect that she had received, on 04.08.2006, at about 9:00 PM, a telephone call from a stranger, who had claimed that Arbind was in his custody and demanded a ransom of Rs. 10,00,000/- for safe return of Arbind and this fact, according to PW 7, was conveyed to her father, Satish Chandra Jha (PW 11), who was, at the relevant point of time, at Delhi.

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17. Admittedly, as far as PW 11 is concerned, he did not inform the police about the demand for ransom claimed to have been received by Sadhana Jha (PW 7), sister of Arbind. However, it is the evidence of Sadhana Jha (PW 7) that she and Amarendra Singh, a friend of her father, lodged a report with the police, at Patna, in this regard, on 05.08.2006, (i.e. on the following day of the receipt of the telephonic call by PW 7,

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whereby demand for ransom had been raised). No such information/report has, however, been proved at the trial. The non-production of any report, in this regard, constraints us to draw an adverse inference against the prosecution, the inference being that had such information been really received by the police, there was no reason for them to withhold the information .

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18. In fact, it is noteworthy that PW 11, father of PW 7, lodged, with the police, at Morris Nagar Police Station, Delhi, a missing report , as regards disappearance of Arbind, subsequent to the demand for ransom received by PW 7; yet the missing report , which came to be registered as F.I.R. No. 108 of 2006, does not make mention of any demand for ransom . This apart, curiously enough, PW 11 continued to stay, at Delhi, till 15.08.2006 and had been in touch with the Investigating Officer; but no report, as regards the demand for ransom having been received by his daughter (PW 7), was given by PW 11 to the police. Even the call details report of PW 7 has not been produced to prove that she had actually received any call, on 04.08.2006, at about 9:00 PM, raising demand for ransom as claimed by her.

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19. In the circumstances indicated above, it is wellneigh impossible to hold, far less confidently conclude, that any telephonic call, raising demand for ransom, had been received

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by PW 7 as has been claimed at the trial.

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20. We, now, turn to the most significant question, namely, as to whether the headless dead body, in question, was that of Arbind. It has been pointed out, on behalf of the appellants, that the prosecution had failed to prove the corpus delecti and, in this regard, reliance has been placed on the decision in Harendra Narain Singh and Others v. State of Bihar [ (1991) 3 SCC 609]. In this regard, it has also been pointed out, on behalf of the appellants, that merely because Arbind is untraceable, no presumption can be raised that he was put to homicidal death . Support for this submission is sought to be derived from the decisions in The State of Punjab v. Bhajan Singh and Others [AIR 1975 SC 258], Harendra Narain Singh (supra) and Ravindra Prakash and Another v. State of Haryana [(2002) 8 SCC 426.

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21. In the light of the above submissions made on behalf of the appellants, when we examine the evidence on record, what attracts our attention, most prominently, is that the headless dead body, claimed to be of Arbind, was identified by his father, Satish Chandra Jha (PW 11), as the dead body of his son, Arbind. What is, however, noticeable is that no special mark has been mentioned by PW 11 enabling him to identify the said dead body as the dead body of his son, Arbind, and exclude thereby the possibility of the said headless dead body

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being the dead body of anyone else.

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22. With regard to the above, PW 11 has, however, claimed that he had identified the said dead body on the basis of scanty hair on the chest of the said headless dead body. Mr. Surendra Singh, learned Senior Counsel, appearing on behalf of the appellants, has considerable force, while he submits that there would be countless men, in India, with scanty hair on their chests , and, hence, the reason, assigned by PW 11 for identifying the said headless dead body as the dead body of his son, Arbind, cannot be safely relied upon and the evidence given in this regard by Satish Chandra Jha (PW 11), cannot be confidently made basis for concluding that the said headless dead body was that of Arbind.

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23. What can also be not ignored is that the identification of the said dead body, according to PW 11, was made at Rupaspur Police Station, where he was shown the photograph. This identification, even if made, was not substantive evidence inasmuch as the identification from the photograph, so carried out, was merely a part, or stage, of investigation. This apart, it is not the prosecution’s case that the said headless dead body’s photograph was mixed with other photographs of similar headless dead bodies for the purpose of ascertaining as to how far identification, if made, can be safely relied upon.

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24. Over and above what have been indicated with regard to the infirmities with which suffer the evidence of identification of the said headless dead body by PW 11 as the dead body of Arbind, it is important to bear in mind that the photograph, which had become the basis for identification by PW 11, was never produced in Court and, in the absence of any identification of the said dead body, on the basis of any photograph, carried out at the trial, there can be no escape from the conclusion that there was no substantive evidence proving the factum of identification of the said headless dead body by PW 11 as the dead body of his son, Arbind.

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25. With regard to the above, rightly points out Mr. Surendra Singh, learned Senior Counsel, appearing on behalf of the appellants, that the said dead body was preserved at the Police Station for about 72 hours and was, thereafter, cremated and, during this period, nobody identified the dead body and, similarly, nobody has identified the skull as belonging to Arbind. The reference, made by Mr. Surendra Singh, learned Senior Counsel, to the case of Harendra Narain Singh (supra), is not misplaced inasmuch as the case of Harendra Narain Singh (supra) is one, wherein the correct identification of the dead body was questioned. The Supreme Court pointed out in Harendra Narain Singh (supra) that when none of the prosecution witness has deposed that he had seen the face of

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the dead body or identified the same, it would not be reasonable to assume that the dead body was that of the deceased concerned and, in the absence of identification of dead body by the witnesses, it is not legitimate to hold that the dead body was of the person claimed to have been killed .

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26. In the present case, too, in the face of the vague, uncertain and unsafe evidence of identification of the said headless dead body, it cannot be concluded, far less confidently held, that the said headless dead body was of Arbind.

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27. Further-more, the ganji (vest) and gamacha (country towel) found near the skull as well as the jeans, found in the flat, owned by Ram Briksh Singh (PW 1), have not been identified as ganji (vest), gamacha (country towel) and jeans belonging to Arbind.

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28. Coupled with the above, it is the prosecution’s case, as has emerged from the evidence on record, that a pair of black slippers was found in the flat of Ram Briksh Singh (PW 1) and seized by seizure memo (Exhibit-12). PW 11 has identified the slippers in a Test Identification Parade , which was said to have been conducted, on 15.11.2008, by Block Development Officer.

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29. The identification of slippers suffers from serious infirmity inasmuch as PW 11 claims that he had purchased the said slippers for Arbind three months before the occurrence.

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However, during the said period of three months, PW 11 was at Patna; whereas Arbind was in Delhi. There was, therefore, no adequate opportunity for PW 11 to see and notice the slipper for such a long period of time that he could have identified the said slippers as of Arbind; more so, when the slippers, in question, are, admittedly, easily available in the market and has been admitted so by none other than PW 11 himself, when he admits, “ there are many slippers like this”.

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30. Hence, the identification of the slippers as slippers of Arbind does not, in the facts and attending circumstances of the present case, inspire confidence or cannot, therefore, be safely relied upon. Reference made, on behalf of the appellants, to the decisions of Mohammad Arif v. Allah Rabbul Alamin and Others (AIR 1982 SC 948) and Bharat v. State of M.P., [(2003) 3 SCC 106], cannot be said to be wholly misplaced.

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31. Though it has been agitated, on behalf of the appellants, that Block Development Officer, who had carried out the identification parade of the slippers, has not been examined during trial, we do not find that merely because of the fact that Block Development Officer was not examined as a witness at the trial, identification of the slippers could have been brushed aside. What, however, cannot be ignored is the grievance of the appellants that as far as the identification of

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the slippers by PW 11 is concerned, the same has not been satisfactorily proved and cannot, therefore, be safely relied upon inasmuch as the pair of slippers, recovered in the present case, can be easily purchased in the market and are commonly available. Even, according to the prosecution’s case, there has been no significant mark of identity. The identification of the slippers cannot, therefore, in the facts and attending circumstances of the present case, be of any avail to the prosecution.

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32. What also cannot be ignored is that there is no evidence on record to show that at the Test Identification Parade, the said slippers were mixed with other slippers of the same make and design. The possibility, therefore, of a defective identification cannot be boldly ruled out. Furthermore, the slippers, in question, were not produced in Court nor were the slippers identified in the Court. There is, therefore, no substantive evidence on record with regard to the identification of the slippers as the slippers of Arbind.

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33. We are, now, turning to the last, but most important feature of the evidence, which, according to the learned trial Court, proves the prosecution’s case, namely, the confession , alleged to have been made by A-1 and A-2 . The learned trial Court, in paragraph 3 of the impugned judgment, has, observed, “…………. the whole prosecution story is based on

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the confessional statements of accused Amarnath and Basudeo Yadav………..” .

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34. The confessions , so referred to, by the learned trial Judge, have been proved as Exhibit-16 of A-1 and Exhibit13 of A-2 . Both these confessions, having been made by the accused, while they were in police custody, were inadmissible in evidence, for, Section 25 of the Evidence Act makes a confession, made to a police officer, inadmissible by laying down that no confession made to a Police Officer shall be proved as against a person of any offence.

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35. The only other confession is the extra-judicial confession , claimed to have been made to PW 11, father of Arbind, by A-1 , on 16.08.2006, while in the custody of police at Morris Nagar Police Station, Delhi, inasmuch as PW 11 claims that A-1 had confessed to him, over phone, as regards the commission of offence of abduction and murder of Arbind. This alleged confession is also, correctly submits Mr. Surendra Singh, learned Senior Counsel, appearing on behalf of the appellants, inadmissible being hit by Section 26 of the Evidence Act, which reads thus:

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“ 26. Confession by the accused while in custody of police not to be proved against him…….

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No confession made by any person whilst he is in the custody of a police officer, unless it be made in

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the immediate presence of a Magistrate shall be proved as against such person.”

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36. Support for the above submission is sought to be derived from the decisions in Pakala Narayana Swami v. Emperor (AIR 1939 PC 47), State of A.P. v. Gangula Satya Murthy [(1997) 1 SCC 272] and State (N.C.T. of Delhi) v. Navjot Sandhu (AIR 2005 SC 3820).

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37. Though it has been submitted, on behalf of the appellants, that Ram Briksh Singh (PW 1) and his son, Awadhesh Kumar (PW 2), have claimed that their flat was taken on rent by A-1 , but there is no adequate evidence to positively prove the fact of the flat having been taken on rent by A-1 , what is important to note is that even if one assumes that any of the appellants had taken the said flat on rent, then, it does not ipso facto prove that Arbind was taken to the said flat; more so, when neither PW 1 nor PW 2 has stated that anyone had stayed there after 27.07.2006 and no article belonging to the appellants or Arbind, is proved to have been recovered or seized from the said flat.

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38. The various circumstances, which the prosecution has sought to prove as incriminating circumstances and which we have discussed above, do not prove that Arbind was put to death or that he has been made to meet homicidal death . This apart, there is no cogent, safe and reliable evidence on record

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proving that the appellants were involved in causing death of Arbind even if one assumes that Arbind was put to homicidal death .

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39. Because of what have been discussed and pointed out above, we are satisfied that the evidence on record was grossly inadequate and did not meet the standard of proof, which is insisted in a criminal trial, and, in a case of present nature, the accused-appellants could not have been convicted of the offences, which they stood charged with. The learned trial Court, in the circumstances, which we have discussed above, ought to have accorded, at least, benefit of doubt to the accused-appellants.

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40. In the result, and for the reasons discussed above, both the appeals succeed. The impugned conviction of the accused-appellants by the judgment, under appeals, and the consequential sentences, passed under the impugned order, are hereby set aside. The two accused-appellants are held not guilty of the offences, which they stand convicted of, and are acquitted of the same under benefit of doubt

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41. Bail bond of the accused-appellant Amarnath Jha ( A-1), is hereby cancelled and his sureties stand discharged.

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42. So far as the accused-appellant, Basudeo Yadav (A-2), is concerned, he is directed to be released forthwith from custody unless he is required to be detained in connection

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with any other case.

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43. Send back the Lower Courts Record along with a copy of this judgment and order.

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