It was stated that confessional statement of an accomplice is admissible under the Indian Evidence Act but requires corroboration in material particulars by other independent evidence
|Case name:||Rajesh Ranjan @ Pappu Yadav Versus The State of Bihar through the C.B.I.|
|Case number:||Criminal Appeal (DB) No.418 of 2008|
|Court:||THE HIGH COURT OF JUDICATURE AT PATNA|
|Bench:||Honourable Mr. Justice V.N. Sinha and Honourable Mr. Justice Amaresh Kumar Lal|
|Relevant Act/Sections:||Indian Penal Code: Section 302 Arms Act: Section 27|
- BRIEF FACTS AND PROCEDURAL HISTORY:
- These three appeals are filed against the judgment and order dated 14.02.2008 passed by Additional Sessions Judge-XI, Patna.
- 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
- Prosecution case 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.
- 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 the fardbeyan informant claimed that accused named in the fardbeyan conspired to kill his brother and others as also to grievously hurt the Bodyguard.
- ISSUE BEFORE THE COURT:
- Whether conviction and order of sentence dated 14.02.2008 passed by Additional Sessions Judge XI, Patna in Sessions Trial No. (976 of 1999) is valid?
- RATIO OF THE COURT
- The court observed that 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. The Court reffered to the case of Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637 and observed 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.
- The Court cannot be condoned with reference to the mandate of Section 463 Cr.P.C. as from the entire evidence of the prosecution including the evidence of P.Ws. 59, 61 , the court argued 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
- It was observed that 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.
- The court opined that 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.
- It was stated that confessional statement of an accomplice is admissible under the Indian Evidence Act but requires corroboration in material particulars by other independent evidence.
- Exaggerated devotion to the rule of benefit of doubt must not nature fanciful doubts or lingering suspicion and thereby destroy the social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilt 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.a
Validity of the custody of Rajan Tiwary obtained by P.W. 61 on 13.2.1999
- It was 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.
Validity of the order dated 15.9.1999 passed by the Special Magistrate, C.B.I., Patna discharging F.I.R. named accused
- The Court observed that order dated 15.9.1999 passed by the Special Magistrate C.B.I., Patna is wholly without jurisdiction. 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.
- It was also stated that the 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..
- The Court pointed out that 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.
- It later added that 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
- It was observed that 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 without undergoing the due process of trial which has occasioned in failure of justice.
- The court stated that 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.
- DECISION HELD BY COURT:
- The three appellants deserve to be granted benefit of doubt.
- The impugned judgment and the order of sentence dated 14.02.2008 was 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.