Virender Singh, C.J.
1. We have three analogous appeals preferred against one and the same impugned judgment of conviction and order of sentence, dated 24.01.2006 and 27.01.2006 respectively, passed by Special Judge, C.B.I Ranchi in Sessions Trial No. 158 of 1998 and S.T No. 107 of 2003 arising out of one and same R.C. Case 17 (S)/1994(R). They have been taken together for the convenience of the Court. Accused -appellants namely Lalit Chandra Biswas @ Rajiv Sen @ Raju, Amarendra Kumar Singh, Yogendra Sharma @ Munna Sharma and Kunal Jena @ Kunna (hereinafter to be referred to as ''accused'') stand convicted under section 302 read with 120B of IPC and 27 Arms Act. They have been sentenced to undergo rigorous imprisonment for life with fine of Rs. 5,000/-each, in default to pay fine, simple imprisonment for 3 months for the offence under section 302 read with 120B of IPC, to undergo rigorous imprisonment for three years, with a fine of Rs. 1,000/-each, for the offence made out under Section 27 Arms Act, in default thereof, to undergo simple imprisonment for 15 days with the rider that both the substantive sentences shall run concurrently.
2. The case of the prosecution sans unnecessary details, as one elicits from the fardbeyan (initial statement) of PW-15 Prabhu Charan, the driver of the Ambassador car of Sri V.G. Gopal President, Tata Workers'' Union (since deceased), recorded by Bistupur Police in TMH, Jamshedpur is that on 14-10-1993, at about 9.30 A.M., the informant alongwith V.G. Gopal and security guard Madan Prasad arrived at the Union Office by the said Ambassador car. At about 12.05 P.M., the security guard Madan Prasad (also deceased) intimated to the informant that Gopal Babu was alighting down the stairs. Hearing this the informant hurriedly moved towards the car and saw that V.G Gopal was accompanied by a press reporter and another companion of his. They were descending from the stairs. As soon as V.G Gopal reached near the Ambassador car, the security guard Madan Prasad opened the rear door of the car and as V.G Gopal stepped into the car, the informant heard a gunshot. Thereafter, the informant noticed Madan Prasad, the body guard scampering towards the office for cover. He seemed to be giving some interdicting signal by shaking his hand. Thereafter, other persons of the office were also seen scuttling here and there for cover against the firing. Soon thereafter, one of the assailants bearing a good, stodgy physique came near V.G. Gopal and fired a shot at his head. Consequentially, V.G. Gopal fell down on the rear seat of the car. Thereafter, the same miscreant again fired 4-5 shots at V.G. Gopal. This assailant was accompanied by another miscreant, aged about 27/28 years, who was also brandishing a pistol in his hand. As per the informant, he had noticed two other persons standing outside the main gate, one of them was heard exhorting these two miscreants to hurry and he shouted "Jaldi Chalo Bahar Aaoo". Thereafter, both the miscreants went out of the main gate, where one person was sitting on a blue L.M.L scooter, while another person was sitting on one Bajaj Super Scooter. Both the accused persons sat on scooters and escaped in the western direction. Thereafter, Chhedi Singh and the press-reporter alongwith the informant, removed V.G. Gopal to Tata Medical College Hospital in same Ambassador car. Security Guard, namely Madan Prasad, was also ferried to the same hospital in a jeep. On medical examination, the doctors pronounced that both the injured persons had succumbed to the injuries. According to the informant (as has been stated by him in his fardbeyan), the genesis of the occurrence and the impelling motive behind the murder of V.G Gopal can be traced to the factionalism going on within the Union. V.G. Gopal wanted to convene Union election in the month of November, but a committee member namely Sri B.N. Singh, along with his supporters was opposing to that as he feared losing his seat. The informant further stated that the previous President of the Tata Workers'' Union, Sri S.N. Singh, was running a parallel Union and he too in order to establish his supremacy, was opposing the steps taken by V.G. Gopal. Said B.N Singh and S.N. Singh, were also in touch with Malkhan Singh, a Mafia leader. The triumvirate wanted to establish their supremacy over the Union, which was then being run by the deceased V.G. Gopal. At foot of the fardbeyan, the informant has also disclosed the names of the eye witnesses to occurrence. He has named Chhedi Singh, the Press Reporter, other employees of the Union, Tea vendor and Mahavir Singh as the eye witnesses to the occurrence.
3. On the aforesaid allegations made in the fardbeyan, Bistupur P.S. Case No. 346 of 1993 was registered against unknown accused persons, under Section 302 read with Section 120B , IPC and Section 27 , Arms Act. Investigation was thereafter undertaken by the local police. However, subsequently the investigation in the said case was handed over to the Special Investigation Team which was constituted for this purpose. Finally, this case was handed over to CBI on 29.07.1994 whereupon R.C. Case No. 17(S)/94 was got registered by C.B.I. under Section 302 read with Section 120B , IPC and Section 27 , Arms Act.
4. Since the present case has been investigated by three different Investigating Agencies, it would be apt if the outcome of these three Investigating Agencies is depicted in brief. As per the fardbeyan of PW Prabhu Charan, he had suspected three persons namely B.N. Singh, S.N. Singh and one Malkhan Singh, a mafia leader behind this incident as they wanted to establish their supremacy over the Tata Union which was being run by deceased V.G. Gopal. He, at the same time, had disclosed the names of certain eye witnesses to the occurrence also. When the matter was taken up by Special Investigation Team which was constituted for the purposes of investigating this particular case, being of that nature, SIT filed its chargesheet No. 1 dated 05.01.1994 wherein five accused were chargesheeted under Section 302 /120B IPC out of which three were shown in custody namely Kartik Ghosh, Surya Kant Patel and Ranjan Ahuja and two who were shown on bail were Gauri Shankar and Ratan Ghosh. Other seven persons who were suspected in the said chargesheet were Arvind Singh @ Malkhan Singh, S.N. Singh, Arun Kumar Singh, Arjun Singh, Ashok Kumar, Balram and Praveen. The investigation was shown as continuing in the first chargesheet. Cognizance of the offence on the basis of the said chargesheet was taken by the court concerned on 07.01.1994.
5. One Lalit Chandra Biswas (now convicted) was shown to have been arrested on 24.01.1994 in some other case and when he was produced before the court on 25.01.1994, his confessional statement under Section 164 Cr.P.C. was recorded before the concerned Magistrate. It is thereafter, a supplementary chargesheet dated 30.04.1994 was filed in which five accused persons were shown as arrested namely Lalit Chandra Biswas, Pranab Kumar Jena, Kunal Jena @ Kunna, Arvind Singh @ Malkhan Singh and S.N. Singh. Othere four persons were shown as absconding namely Munna Sharma @ Yogendra Sharma, Rajan Shukla, Banti Sahu and Amarendra Kumar Singh. Cognizance on the basis of the supplementary chargesheet was also taken by the court on 10.05.1994. It is thereafter the Central Bureau of Investigation took up the investigation of this case and started investigation in its own manner in which on completion of investigation the first chargesheet by CBI was submitted on 13.11.1995 against Amarendra Kumar Singh and Lalit Chandra Biswas (both convicted). The case was committed to the Court of Sessions on 20.09.1997 and registered as Sessions Trial No. 158/98. It is thereafter supplementary chargesheet was filed by CBI on 28.09.2001 against six persons namely Yogendra Sharma @ Munna Sharma, Kunal Jena @ Kunna, Rajan Shukla @ Pandit, Bunty Sahu, Pranab Kumar Jena and Javed Akhtar. Yogendra Sharma @ Munna Sharma are shown to have been arrested on 10.11.2004 whereas except Pranab Kumar Jena who shown to have died, other three were shown as absconder. It needs to be mentioned here that Yogendra Sharma @ Munna Sharma and Kunal Jena @ Kunna were earlier shown as absconded from jail and arrested on 10.11.2000 only. This is how the case of Yogendra Sharma @ Munna Sharma and Kunal Jena @ Kunna was committed to the Court of Sessions and trial commenced as Sessions Trial No. 107/03. In its chargesheet CBI stated that during investigation they could not find prima facie case against Kartik Ghosh, Rajan Shukla, Surna Kant Patel, Ratan Ghosh, S.P. Singh, S.N. Singh and Malkhan Singh @ Arvind Singh. It is how accused Amarendra Kumar Singh, Lalit Chandra Biswas, Yogendra Sharma @ Munna Sharma and Kunal Jena @ Kunna were put to trial and consequently charged under Section 120B read with Section 302 IPC and Section 27 Arms Act for which they now stand convicted and sentenced vide impugned judgment.
6. The prosecution in all has examined 29 witnesses out of which 12 are official and police witnesses. From the remaining 17 witnesses, 7 witnesses have been declared hostile. Apart from the oral evidence, prosecution has proved and exhibited the following documents :--
"Exhibit 1 - P.M. Report of Madan Mohan Prasad
Exhibit 2 - P.M Report of V.G. Gopal
Exhibit 3 - Signature of Dr. Y. Nath in the P.M Report of Madan Mohan Prasad
Exhibit 4 - Letter written by Raju to Kusum Lata
Exhibit 5 - Postal envelope containing letter
Exhibit 3/1 - Signature of Kusum Lata on seizure memo
Exhibit 3/2 - Signature of Sri V.N. Sahgal on forwarding note
Exhibit 3/3 - Signature of Sri A. Dey on forwarding note
Exhibit 3/4 - Signature of N.B Burdhan on forwarding note
Exhibit 6 - Report of C.F.S.L
Exhibit 3/5 - Signature of Dr. S.R. Singh on forwarding note
Exhibit 3/6 - Signature of N.B Burdhan on forwarding note
Exhibit 6/1 - Report of C.F.S.L
Exhibit 3/7 - Signature of Prabhu Charan on Fardbeyan
Identification mark X to X/2 - photocopy of three seizure memo
Identification mark X/3 - T.I. chart dt. 16.08.1994
Exhibit 7 - Statement u/s. 164 of Cr.P.C of Lalit Chandra Biswas
Exhibit 8 - F.I.R of R.C Case No. 17(S)/94(R)
Exhibit 9 - Notification of Govt. of Bihar
Exhibit 9/1 - Notification of Govt. of India
Exhibit 10 - Production cum seizure memo dt. 22.03.1995
Exhibit 10/1 - Endorsement and signature on seizure memo
Exhibit 11 - Forwarding letter for expert opinion
Exhibit 12 - Handing over and taking over memo of two pistols
Exhibit 13 - Forwarding note of S.P. C.B.I
Identification mark X/4 to X/15 - Specimen writing of Lalit Chandra Biswas
Exhibit 14 - Opinion of expert
Exhibit 15 - forwarding letter with opinion
Exhibit 16 - Reasons for opinion
Exhibit -17 - Forwarding letter enclosed with reasons for opinion
Exhibit 18 - Forwarding letter enclosed with questions
Exhibit 19 to 19/11 - Specimen signature of Lalit Chandra Biswas."
7. P.W. 1 is Dr. Lalan Chaudhary. He has proved the Post Mortem Report of Madan Mohan Prasad, marked as Ext. 1 and he stated that he and Dr Y. Nath had conducted the post mortem on the dead body of Madan Mohan Prasad. He had found the following ante mortem injuries:
"Injury No. 1 - Entry wound of size 1/2 cm, situated over back of the left scapular area, 18 cm below the shoulder and 8 cm length mid line body and surrounded by abrasion and contusion collar.
Injury No. 2- Entry wound of size 1 cm, 0.75 cm over left upper arm. Projectile entered into the muscle and subcutaneous tissue and made the exit to the inner surface of left arm measuring about 1.5 cm x 0.75 cm. The projectile then made entrance into chest cavity though entrance wound by the same projectile over lateral side of chest 12 cm below the auxiliary point measuring 1.2 cm x 0.75 cm.
Injury No. 3- Entry wound of size 1 cm x 1.5 cm, over back of the left thigh. Margin was abraded and concise of size 5 cm x 2 cm.
On dissection - Thigh projectile entered into the muscle and tissue travelled upward and laterally up to 21 cm distance and found lodged into muscle of left pelvis region. The bullet was deformed.
Chest and abdomen - one bullet was found embedded in the upper skin and the level of left 4th rib with adjoining margin of sternum. Hole measuring 1cm X 2 cm fracture of 4th left rib was found surrounding tissues were contused. Chest cavity contained about 2.5 liters of blood and blood clots were also found. Both lungs were found pierced and heart was pierced through and through. Sixth inter coastal space in left back was pierced at the entry wound.
Entry Wound No. 1 communicates the left 4th rib fracture. One bullet was embedded in the middle lobe of right lung communicate the second entry wound. Left 5th inter coastal space pierced. Total number of bullets found were three which were sealed properly.
Opinion - Death was due to bleeding and hemorrhagic shock caused by fire arms.
All injuries were ante-mortem and caused by fire arms.
Time since death - Between 18 to 24 hrs from the time of post mortem examination."
8. P.W.2 Dr. Y. Nath has proved the Post Mortem Report of deceased V.G Gopal, marked as Exhibit 2. He has stated that he had conducted the post mortem over the dead body of V.G Gopal and found the following injuries on the dead body of V.G. Gopal:--
"A. Firearm injury No. 1a - Wound of entrance -.5 cm in diameter situated over right face surrounded by tattoo mark around the wound of entrance over and area of 12x10 cm right face. The wound was situated 2 cm away from right ear lobules.
Wound of exit - 2 cm in diameter over left temporal bone. The bone had a hole of exit measuring 1 cm.
The projectile after lacerating the facial skin entered into middle cranial fossa, fractured the bone, lacerated the base of the brain and passed upward, backward towards left side and made exit was through temporal bone. There was blood and blood clots in the cranial cavity before making exit, the projectile also lacerated the left temporal lobe of brain.
B. Fire arm injury No. 2 a.--Wound of entrance -.5 cm in diameter over left upper arm 7 cm bone elbow over back of the upper arm. The projectile passed though the substance of soft tissue and muscles fractured the humerus bone into two pieces with bony chips embedded in the muscles.
Wound of exit - 1.2 cm x 2 c.m over left upper arm inner surface 16 cm below axilla and lost in the air.
C. Fire arm injury No. 3 -a. Wound of Entrance.5 cm in diameter over right elbow back. The projectile travelled in the muscles and soft tissue of right upper arm, fractured the right humerus bone and made exit.
Wound of exit - 7x 5 cm x bone deep upper arm lateral side 18 cm below axilla. The wound showed incised skin perhaps enlarged by the attending surgeon for extraction of impacted bullet should be confirmed by attending surgeon.
D. Fire arm injury No. 4 - 1 cm in diameter over left nape of neck middle part, 9 cm behind and below left ear. Contusion and abrasion collars around the wound of entrance. The bullet travelled sharp course in the soft tissue and got lodged in the second and third cervical vertebrae from where it was recovered and sent in a sealed cover along with P.M. report.
E. Fire arm injury No. 5-- 02 cm in diameter over right chest wall lateral side.
The injury is entrance wound fire arm injury No. 3. After making exit, the projectile with the corresponding chest wall but failed to enter into the chest cavity.
Opinion -All the injuries were ante mortem and were caused by firearm. Death was due to bleeding and hemorrhagic shock. Time since death- Within 3 to 6 hours from the time of post mortem."
9. P.W.3 Ashit Biswash is an eye witness to the occurrence. He deposed that on the day of occurrence, he along with Prasant Ghosh had met V.G. Gopal, soon before 12.00 noon, in his office, which was situated at the Tata Workers'' Union office and at 12.10 P.M. V.G. Gopal started leaving his office and came down the staircase. At that time, PW 3 was just a step behind the deceased V.G. Gopal. He stated that when V.G. Gopal reached near his car and was trying to sit on the rear seat of the car, he wanted to ask something, but suddenly his voice stopped, he gasped and fell on the rear seat of the car. According to him, he noticed that one of the miscreants who had fired at V.G. Gopal was wearing a helmet. He has given a physical description of the assailant and deposed about his physique, complexion and approximate age. He further added that the miscreant had also fired a shot at him and thereafter he had again fired shots at V.G. Gopal and then the miscreants fled away from the scene of crime. PW3 then sought the help of bystanders. Some persons including the driver of the deceased V.G. Gopal, arrived there. Thereafter, with the help of the driver and other persons, the injured V.G. Gopal was ferried to the Tata Medical Hospital. He has further stated that he had seen the face of miscreant, who had fired shots with his firearms.
10. P.W. 4 Narayan Shasi Kumar has stated that he had heard some sound. Thereafter, he saw the injured V.G. Gopal lying prostrate in a pool of blood on the rear seat of the Ambassador car. He also had noticed the presence of Biswas Babu, driver-Prabhu Charan and Babuwa Jha. Later, he came to know that V.G. Gopal and his bodyguard had succumbed to their injuries.
11. P.W. 5 Ram Lakhan Singh has stated that he had heard sound of firing. Thereafter, he noticed two people fleeing away from the office campus. One scooter was parked outside the office gate, on the western side. Both the accused sat on it and escaped. According to him he reached at P.O first of all.
12. P.W. 6 Dashrath Sharma has turned hostile and during cross-examination conducted by the learned A.P.P., he has denied his testimony recorded under Section 161 Cr.P.C.
13. P.W. 7 Shiv Kumar Yadav is relative of one convict namely Munna Sharma. He stated that on 14-10-1993., he came to know about the murder of V.G. Gopal, the president of Tata Workers'' Union. After three-four days, Banti, who normally had a beard, returned home clean shaven, whereupon he asked him about the murder of V.G. Gopal. Thereupon, Banti replied that at the time of the murder, he was near the gate of the Union office and this murder was committed by Pandit (Rajen Shukla), Raja and others, whose names he couldn''t recall. He also stated that there were good, cordial relations between Banti and Munna Sharma and Banti used to address Munna Sharma as the boss. He has also disclosed that this murder was committed as per the direction of boss.
14. P.W. 8 Chandradeo Prasad has stated the hearsay story of murder. He has also disclosed that on the night of 14-10-1993, when he returned from his duty at 10.30 P.M. he saw that Rajen Shukla was sleeping in the quarter.
15. P.W. 9 Shankar Das @ Dilip Das has stated that he knew Lalit Chandra Biswas alias Rajiv alias Raju, who had worked in his establishment of transport business and he also used to teach his children for which he had given accommodation in transport office and used to pay him cash Rs. 300 per month along with his fooding. On 14-10-1993, when Raju came for lunch, he was visibly perturbed and on being asked, he disclosed that ''he along with two-four boys (their names were not in his memory) had committed murder of V.G. Gopal''. On hearing this, he had ousted the accused from his house. PW 9 further stated that Raju had come back after 15 days and informed that he had gone to Jahanabad.
16. P.W. 10 Dayanand Prasad runs a jewellery shop by the name of ''Santosh Jewellers''. He stated that he knew Rajen Shukla alias Pandit and Sunil Mandal. He also knew Lalit Chandra Biswas by face. According to him, he had provided two tickets for Jahanabad to Rajan Shukla.
17. P.W. 11 Kushum Lata has stated on oath that she being a sportswoman had met Lalit Chandra Biswas, who is also a sportsperson in J.L. Nehru Stadium during practice sessions and had become well acquainted with him. Lalit Chandra Biswas had also stayed with her at her residence for some time. Thereafter, he went away in search of a job, but he used to write letters to her on her address of Punjab National Bank, South Extension, New Delhi, where she was posted. She has brought on record one of such letters alongwith its postal envelop, which had been sent to her South Extension address (old address), from where it was redirected and received at her Safdarjung address (present address), as she had been transferred meanwhile from PNB, South Extension to Safdarjung. She has proved the letter (Ext-4) and also the addressed postal envelop within which it was sent (Ext-5) to be in the handwriting of the accused Lalit Chandra Biswas. She has also identified and thus proved her signature on the seizure list prepared for recovery of the said letter and its envelop, marked as Exhibit 3/1. She, at the time of deposition, identified accused Lalit Chandra Biswas also, who was present in accused dock.
18 P.W. 12 Lalu Prasad is tea vendor. Although he has turned hostile, but he has proved that Raju lived in the house of Shankar Das.
19. P.W. 13 Lal Babu Singh is neighbour of Banti (absconder accused).He has stated that he knew the friends of Banti, namely Raja, Rajan Shukla and Munna, who used to come to Banti''s house. On 14-10-93, in the evening he saw Banti''s clean shaven face, who otherwise wore a bearded look. According to him, he on the instruction of Banti, had brought the grey/black coloured LML Vespa scooter from Dilip Mandal, a vegetable shopkeeper and handed it over to him and again brought a bag from Dilip Mandal after a few days. PW 13 however turned hostile during cross-examination and showed unawareness about arms kept in the said bag. He also denied his earlier testimony on the point recorded under Section 161 Cr.P.C. during cross examination conducted by A.P.P.
20. P.W. 14 Bimlesh Kumar Ojha has also turned hostile during cross-examination and denied his earlier testimony recorded under Section 161 Cr.P.C by the I.O.
21. P.W. 15 Prabhu Charan is the informant. He has stated that before retirement he was a driver of Tata Workers'' Union and used to drive an Ambassador car bearing No. BR. 16-9047. On 14-10-93, the President of Union V.G. Gopal (deceased) arrived in the said car at Union office and thereafter he parked the car in the portico and went for some work as per the instruction of V.G. Gopal. He returned to the Union office at 11.40 A.M. Meanwhile the bodyguard Madan Prasad Sao (also deceased) informed that Gopal Babu was leaving his office and was climbing down the staircase. He was accompanied by 25/30 persons, including Ashit Babu (Press Reporter). No sooner the bodyguard opened the rear gate of the car parked in the portico, a sound of firing was heard. Thereafter, bodyguard Madan became restless and rushed towards the office. Other persons accompanying Gopal Babu also rushed inside the office but he, hiding himself, sat in the right side of the car. After some time he saw two boys, who were going outside the office, shouting out "Chalo Chalo". Thereafter, he saw that half portion of the lumpen and motionless body of Gopal Babu was hanging outside the car. He also noticed bleeding from his ears and nose. He removed Gopal Babu to Tata Medical Hospital, Jamshedpur. After some time, he also saw that the bodyguard Madan was also brought there. PW 15 has admitted that he had identified one person in the Test Identification Parade (hereinafter TIP) who had shouted "Chalo Chalo". However on oath, PW 15 has shown some reluctance and doubt in recognizing the said accused in court. (This reservation in identification may be attributed to the lapse of 11 years since occurrence till his deposition in Court).
22. P.W.16 Dhani Ram Chandeshwar is a barber who runs a Saloon at Sakchi Kashidih. He has stated that he knew Raju. According to him, Raju had come to his Saloon, in between 1.00 P.M. to 2.00 P.M. on the day when V.G. Gopal was murdered. That day Raju was accompanied by another boy who too had a bearded face. Raju had asked him to shave the beard of that boy too. Thereupon, he had shaved his beard, for which Raju paid. He identified Raju, who was present in court in the accused dock.
23. P.W.-17 Anil Kumar Srivastava (the then Inspector of Police cum officer-in-charge of Bistupur) was the first Investigating Officer of this case. He has described the place of occurrence as the portico of the south facing Tata Workers'' Union office, where the car of V.G. Gopal was parked and at a distance of 20 to 25 yards towards the southern direction, there was a gate of the office adjacent to the road. According to him, he was informed on 24-01-94 by Kadma Police that one Lalit Chandra Biswas, arrested in Kadma P.S. Case No. 82/93, registered under Section 392 IPC by Kadma police station had also confessed his guilt in the murder of V.G. Gopal, whereupon he had made an application for recording his statement under Section 164 Cr.P.C. Thereafter his statement was recorded by the Judicial Magistrate.
24. P.W.18 N.B. Berdhan is the Senior Scientific Officer Grade-I (Ballistics Division). He has stated that five parcels sent by CBI were received for ballistic examination. The details of the parcels are: (i) Parcel No. 1 contained two 9 mm KF fired cartridge cases, one deformed and damaged 315/8 mm copper jacketed fired bullet; (ii) Parcel No. 2 contained one deformed and badly mutilated 9 mm fired cartridge case having its percussion cap in a blown off condition, one deformed 0.380 fired bullet, one deformed 9 mm fired bullet, one deformed 9 mm fired bullet and one badly mutilated 9 mm fired bullet; (iii) Parcel No. 3 contained one tin container of 0.132 numbers Gopal Jarda containing 0.380 fired bullets; (iv) Parcel No. 4 contained one brown paper, two 0.380 fired bullet and one deformed and badly mutilated 9 mm fired bullet; (v) Parcel No. 5 contained one 303 country made pistol (vi) Parcel No. 6 contained one 315/8 mm double barrel country made pistol. After scientific examination of the said material exhibits, he submitted the following report:--
� "The 303 country made pistol marked K of Parcel No. 5 is in working order and can be used for firing.
� The left barrel of 315/8 mm double barrel country made pistol marked K/2 of Parcel No. 6 is in working order and can be used in firing but the right barrel of the above mentioned country made pistol is not in working order in its present condition and its firing pin require repair/replacement to bring it into working order.
� The 315/8 mm bullet marked A/3 of Parcel No. 1 had been fired from the left barrel of the 315/8 mm double barrel country made pistol marked K/2 of Parcel No. 6.
He has proved his report as Exhibit-6."
25. P.W.19 Vijay Kumar Choudhary has turned hostile during cross-examination conducted by the learned APP and has denied his testimony incorporated in case diary during investigation.
26. P.W. 20 Jagarnath Modak is a seizure list witness who has turned hostile and denied his earlier testimony stated during investigation.
27. P.W-21 Ashutosh Bole, has stated that he and Jagarnath Modak had gone to the house of Kunal Jena with officer-in-charge of Mango police station and put their signature on three seizure lists. Seeing the three documents, which have been marked as Exhibit X, X/1 and X/2, he identified them as the same seizure lists. During cross-examination, he denied the factum of recovery of arms and ammunitions in his presence.
28. P.W 22 Shambhu Nath Chaudhary has done part investigation of this case. He only arrested the chargesheeted accused Lalit Chandra Biswas, who had escaped from jail custody. He also took the statement of Lalit Chandra Biswas, who confessed his guilt.
29. P.W-23 is Additional sessions Judge Mr. S.K. Jha, who was wrongly summoned in this case in place of J. M Mr. S.K. Jha, has denied having conducted any T.I.P. in this case.
30. P.W.24 Nagendra Ram was the Investigating Officer in Kadma P.S. Case No. 12/93 registered under Section 392 IPC. He has stated that he had arrested a suspect Lalit Chandra Biswas in the said case of robbery. During interrogation, Lalit Chandra Biswas had confessed his guilt about the murder of V.G. Gopal and also disclosed the complicity of Pranab Kumar Jena, Banti Sahu, Amarendra Kumar Singh, Rajan Shukla, Kunal Jena @ Kunna in this murder. Thereafter, with the help of Mango Police, he raided the house of Pranab Kumar Jena. During the search, a loaded double barrel country made pistol along with and two cartridge of 0.315 was recovered from the waist of Pranab Kumar Jena, a country made pistol loaded with 303 cartridges was recovered from the waist of Kunal Jena, six cartridges of 0.22 were recovered beneath the bed and a L.M.L Vespa Scooter bearing No. BBH-4200 seized from their house. Thereafter, three seizure lists (X, X/1 and X/3) were prepared by him in presence of Ashutosh Bal and Jagarnath Modak upon which he, witnesses and the accused put their respective signature. He has added that Lalit Chandra Biswas, in his statement recorded under Section 164 Cr.P.C before Judicial Magistrate Jamshedpur, had admitted his complicity coupled with the complicity of his companions. During cross examination he has stated that Lalit Chandra Biswas was arrested on 23.01.94 in a robbery case and was forwarded on 24.01.94.
31. P.W.25 Sayad Akhtar Uddin, Additional District and Sessions Judge, Sitamarhi, Bihar, has stated that in the year 1994 he was posted at Jamshedpur as Judicial Magistrate, 1st Class. On 25.01.94, he had recorded the statement of suspect Lalit Chandra Biswas @ Rajeev Sen @ Raju under Section 164 Cr.P.C. (Exhibit-7) in compliance of the direction of the learned Chief Judicial Magistrate, Jamshedpur. Confessional statement was recorded in accordance with the law and in the language spoken by the accused. Necessary statutory warning was given to the accused before recording his statement and he was told that his statement could be used against him. During cross examination, P.W. 25 has stated that he had again recorded the statement of Lalit Chandra Biswas (Exhibit-A) in compliance of the direction of Chief Judicial Magistrate, Jamshedpur on 18.2.94.
32. P.W. 26 Arjun Prasad Singh, the Assistant Jailor, Central Jail, Ranchi, in whose presence TIP of the accused Amarendra Kumar Singh was conducted on 16.08.95 by Mr. S.K. Jha, Judicial Magistrate, 1st Class, Ranchi has proved and exhibited his signature in Column 6 of the TIP chart, which was prepared by Mr. S.K. Jha, (Exhibit- 8). During his cross examination he has admitted that Ext-8 is the carbon copy of the TIP Chart prepared.
33. P.W. 27 Sharvan Kumar, the then Dy. S.P. C.B.I., Ranchi has stated that on 27.09.94, R.C. Case No. 17(S)/94 was registered by him against unknown accused persons under Section 302 read with 120B IPC and Section 27 Arms Act on the basis of notification issued by the Government of Bihar vide Memo No. 3/C-4/10395/93 (Part) H (P) 1668, dated 04.03.94 (Exhibit-9) and Notification No. 228/11/94-AVB II, dated 18.07.94 of the Government of India (Exhibit-9/I). Earlier an F.I.R. No. 346/93 was registered under Section 302 read with Section 120B IPC and Section 27 , Arms Act, dated 14.10.93 in Bistupur P.S. Having obtained the order of court he took over the exhibits and the case diary (Ext-12). Lalit Chandra Biswas, who had escaped from the jail custody, was arrested. On the basis of disclosure statement made by him, he visited New Delhi and seized a letter from Miss Kusumlata Toppo (Exhibit-4), in presence of independent witnesses Shri Anil Verma and Rajeev Nagpal, who had put their signature on the seizure list. He also arrested Amarendra Kumar Singh and put him on TIP in Jail. Informant Prabhu Charan had identified him to be the person found at the gate of the place of occurrence, who had exhorted the murderers to come out after the shootout, by shouting "Chalo Chalo". He had obtained specimen writing and signature of Lalit Chandra Biswas (Ext-11) and forwarded the letter and envelope seized from Miss Kusumlata Toppo along with specimen writing and signature of Lalit Chandra Biswas to G.E.Q.D., Kolkata for opinion on his query. He also forwarded the two pistols, projectiles and the empties recovered from the scene of crime to C.F.S.L (Ext-13). The C.F.S.L. Expert confirmed that one of the bullets recovered from the scene of crime was fired from the double barrel pistol (Exhibit-6). He has stated that he submitted an interim charge sheet against Lalit Chandra Biswas and Amarendra Kumar Singh, keeping investigation pending against Munna Sharma, Rajan Shukla, Banti Sahu, Pranab Kumar Jena and Kunal Jena. Thereafter, he had handed over the charge of investigation of this case on his transfer. Nothing cogent has been elicited during cross-examination to shake his testimony.
34. P.W. 28 H.M. Saxena is the Government document examiner, having experience of several years as a handwriting expert in different Departments of the Central Government. He has stated that he had received a document from C.B.I./A.H.D., Ranchi in R.C. Case No. 17(S)/94(R) alongwith a forwarding letter, dated 29.03.95 for comparison of the two sheets. The said letter contained a list of documents and a questionnaire on which the opinion of G.E.Q.D. was called for. The disputed documents and specimen writing of Shri Lalit Chandra Biswas (marked S/1 to S/12) were examined by him. After careful and thorough scientific examination of the document, he came to the conclusion which is in the form of opinion vide letter No. DXC-56/96, dated 10.04.95. (Exhibit-14). He further stated that Mr. Subhashish Dey, G.E.Q.D. had also examined the document independently and came to the same conclusion and signed the report. As per his opinion in Exhibit-14, para-2, the person who wrote in blue enclosed marked S/1 to S/11 (specimen handwriting) also wrote the red enclosed writing similarly stamped in Exhibit-4 (letter) and 5 (envelop).
35. P.W. 29 R.K. Gupta (Asst. C.V.O) has stated that the specimen signature of Shri Lalit Chandra Biswas @ Raju @ Rajeev Sen was taken on 12 sheets by Sharvan Kumar, Dy. S.P., C.B.I in his presence and Shri M. Prasad. Thereafter, he alongwith Shri M. Prasad and the then Dy. S.P., C.B.I. Sharvan Kumar had put their respective signatures. He has identified and proved the specimen signature of accused Lalit Chandra Biswas on 12 sheets as Exhibit-19 to 19/11. He also identified Lalit Chandra Biswas, who was present in the accused dock.
36. This is all, in brief, about the prosecution evidence available on trial court record.
37. The case of accused persons, as can be elicited from their statements recorded under Section 313 , Cr.P.C, is denial simplicitor coupled with the plea of false implication. The main attack by way of defence of the accused persons is that the confessional statement of accused Lalit Chandra Biswas, in which he admitted his complicity and of other co-accused also, was made by him under duress, compulsion and inducements emanating from the Police authorities.
38. We have heard learned counsel for both the sides and perused the trial court records minutely.
39. Learned counsel for the appellants, Mr. M.A. Niyazi and Mr. Tripathy, while assailing the impugned judgment, submitted that admittedly there is no eye witness in this case, who could have revealed who the real assailant was and the entire prosecution case hinged solely on the confessional statement of one accused, which was procured under compulsion and was thus a tainted piece of evidence, worthy to be discarded by the Court. The defence counsel have tried to adroitly assail the prosecution story by pointing out several lacunae and flaws in the case made out by the prosecution. The defence counsel while putting stress on the different versions of the occurrence as given by P.W.-15 and P.W-3 submitted that it creates a serious doubt about the presence of informant at the scene of occurrence as has been claimed by the informant in the FIR. Further, the voluntariness as well as truthfulness of the confessional statement of accused Lalit Chandra Biswas, recorded under Section 164 Cr.P.C is highly a suspect. It has also been strenuously contended that the statement under Section 164 Cr.P.C has not been recorded in judicial custody rather it was recorded in police custody of accused Lalit Chandra Biswas, who was handed over by Kadma police to Bistupur Police and thus no reliance can be place on it. Learned counsel cited a case law reported in
40. Defence counsel further seek to impeach the prosecution story, by averring that the extra judicial confession brought forward by the prosecution by producing a letter written by accused Lalit Chandra Biswas to his girl friend, P.W.-11 Kusum Lata was of a highly dubious origin and the facts scribed in the letter itself belied the possibility of events mentioned therein.
41. Relying upon a case law reported in
42. Finally, the defence counsel assailed the prosecution case stating that it had completely failed to discharge its burden of proving the conspiracy beyond all reasonable doubts. Coupled with these lacunae, the prosecution has also failed to elicit and prove beyond reasonable doubts, the impelling motive behind the twin murders. Submitting that if a holistic and reasonable appraisal of the prosecution story is undertaken, it would become apparent that the prosecution has not been able to prove its case beyond all reasonable doubts, and consequentially, all the four accused appellants be extended the benefit of doubt, as is the pressing requirement of criminal jurisprudence, whereunder the presumption of innocence has to be dislodged, before conviction. The defence counsel therefore made a fervent plea that the conviction slapped upon the present four accused appellants be set aside.
43. Per contra, Mr. K.P. Deo, learned counsel appearing for CBI, vehemently submitted that the confessional statement made by accused Lalit Chandra Biswas was voluntary and truthful and its subsequent retraction was a mere afterthought which was a result of tutoring. He submitted that on the basis of the confessional statement of Lalit Chandra Biswas police seized one country made loaded pistol and two live cartridges of.315 from Pranab Kumar Jena and one country made pistol loaded with.303 and 26 live cartridges from Kunal Jena @ Kunna, similarly recovery of LML Vespa Scooter BBH-4200 from Pranab and Kunal Jena. He further submitted that the statement of Lalit Chandra Biswas regarding firing on V.G. Gopal (since deceased) and fleeing away of the accused on scooter are also getting the support from PW-3 Ashit Biswas and PW-5 Ram Lakhan Singh. According to learned counsel even statement of PW Shiv Kumar Yadav also corroborates the confessional statement of accused Lalit Chandra Biswas regarding something which had happened prior to the occurrence. Learned counsel further submitted that similarly the evidence of PW-9 also gives corroboration to the extra judicial confession of accused Lalit Chandra Biswas. Mr. Deo further contended that the letter written by accused Lalit Chandra Biswas to his girlfriend PW Kusum Lata and proved by PW H.M. Saxena (Government Examiner of Questioned Document) can also be said to be a clinching factor in this case. Learned counsel for CBI further contended that besides this, there is otherwise sufficient, corroborating and incriminating evidence on record to establish the guilt of all the four accused, therefore, their conviction as recorded by the learned trial court deserves to be maintained.
44. So far as question of fresh investigation/de novo investigation conducted by CBI after investigation conducted by SIT as well as Bistupur Police Station raised by learned defence counsel is concerned, in our considered view, it cannot be claimed at this stage, however, we perused Ext. 9/1 (notification of Government of India) and Ext. 9 (notification of Government of Bihar) which both empowered CBI to investigate this case, do not disclose about fresh investigation or reinvestigation of case, rather the case record reveals that CBI had adopted the investigation of this case in continuation of the investigation already done by Bistupur Police. During further investigation CBI has taken the confessional statement recorded under Section 164 Cr.P.C, recovery of empty cartridge, projectile at P.O, recovery of weapon used in this case on confession of an accused and statements of witnesses recorded under Section 161 Cr.P.C by Bistupur Police, into consideration. Moreover, there is nothing to show that fresh cognizance has been taken on charge sheet filed by CBI in this case. Thus, we are of the considered view that the investigation done by CBI is within the purview of further investigation in terms of provision under section 173(8) Cr.P.C. and not a fresh investigation/de novo investigation /reinvestigation. The judgment rendered in the case of
45. Although with regard to the presence of PW-15 and PW-3, an attempt has been made by learned counsel for the accused to develop as if they were not the eye witnesses to the occurrence or could reveal as to who were the real assailants, we are at this juncture, without entering into a detailed discussion, leaving it to be touched at the proper stage in succeeding paras when we would discuss the entirety of facts of the prosecution case, find nothing to communicate that informant (driver of the car of the deceased) was not present at the place of occurrence at the time of commission of crime, rather the circumstance that firing was made when V.G. Gopal (deceased) was about to board in his car unerringly probablises the presence of the driver of the car (informant) at the place of occurrence. The evidence of PW-3 also does not rule out the presence of informant at the time of occurrence. Therefore, very comfortably it can be said that the contention of learned counsel creating doubt about the presence of PW-15 at the place of occurrence or for that matter PW-3 has not legs to stand.
46. Let us now enter into the vital aspect of the matter. Since the case of the prosecution is primarily dependent upon the statement of accused Lalit Chandra Biswas, therefore, let us first of all examine the case of the prosecution from that angle.
47. Confessional statement of Lalit Chandra Biswas @ Rajiv Sen @ Raju (Ext-7) recorded under Section 164 Cr.P.C. by Judicial Magistrate; retracted confessional statement recorded under Section 164 Cr.P.C by Judicial Magistrate; extra- judicial confessions and a letter sent to his girlfriend PW-11 Kusumlata (Ext-4) in envelop (Ext-5) of Indian postal service by Raju Sen @ Raju are important oral and documentary pieces of evidence upon which the entire case of the prosecution is based. Therefore, these documents ought to be examined with greater care and circumspection.
48. The order dated 25.01.1994 passed by learned Chief Judicial Magistrate, Jamshedpur spells out that Bistupur Police filed a petition praying therein that accused Lalit Chandra Biswas who was forwarded by Kadma Police in a robbery case today i.e. 25.01.1994 may be remanded in this case. Learned Chief Judicial Magistrate accepted the prayer of Bistupur Police and ordered remanding Lalit Chandra Biswas in custody till 07.02.1994. The order reveals that Bistupur Police, after the order of judicial remand of the accused, prayed for recording of the confessional statement of accused Lalit Chandra Biswas which was allowed by learned Chief Judicial Magistrate and thereafter his statement was recorded by Judicial Magistrate. Thus, there appears to be no substance in the argument of the learned defence counsel that accused Lalit Chandra Biswas was handed over to Bistupur Police by Kadma Police and that when his confessional statement was recorded, he was in police custody.
49. It appears that accused Lalit Chandra Biswas had first confessed his guilt on 25.01.1994 before the Judicial Magistrate, 1st Class, Jamshedpur which was duly recorded after following the procedure laid down in Section 164 Cr.P.C. Thereafter, he retracted it on 18.02.1994 giving two reasons for resiling from his earlier statement:--
"(1) He had confessed his guilt under threat given by the police.
(2) Police had promised to give him a job."
50. At this juncture, it would be prudent to recapitulate the conspectus of law pertaining to the evidentiary value of confessions which are retracted subsequently and which are ironically becoming a ubiquitous trend in criminal trials underway in our country.
51. In the case of
"Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed, a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an after-thought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true."
52. Keeping in mind the above quote view of the Supreme Court, we arrive at the conclusion that there are two litmus tests for determining the admissibility and weight of a confessional statement. They are:--
* "whether the confession was under duress, inducement or promise?
Or
* whether the confession was perfectly voluntary and if so, whether it is true and trustworthy."
We accordingly apply the above mentioned tests while appraising the confessional statement made by the accused.
53. Perusing through the records of the case and on analysing the factual matrix of the case, we have been able to elicit the following facts:--
"i. Accused Lalit Chandra Biswas was arrested by Kadma police in Kadma P.S. Case No. 82/93, registered under Section 392 IPC on 23-01-1994, where he not only had confessed his guilt in said case of robbery, but also revealed his complicity in the murder of V.G. Gopal. The accused at the time of making the said confessional statement was not in the custody of Bistupur police, which had jurisdiction to carry on the investigation in the murder case of V.G. Gopal. Thus, we are of the considered opinion that the confessional statement of the accused before the Kadma Police, unveiling his complicity in the case of murder of V.G. Gopal, registered in Bistupur police, was not procured by administering any threat, inducement or promise. The impugned confessional statement appears to be untainted and unblemished by any duress or compulsion.
ii. Stepping into the shoes of a reasonable, prudent man, we are unconvinced by the averments of the defence counsel that Kadma Police had coerced the accused to admit his guilt and to also inculpate his accomplices. It appears improbable and highly incongruous that police personnel posted at a different Police Station and unconnected with a case would be interested in coercing an accused to make a confessional statement.
iii. It is also worth to mention here that after remand of accused- Lalit Chandra Biswas in jail by Kadma police in a case of robbery, a petition was filed by Bistupur police in the court of learned C.J.M Jamshedpur to remand him in the case at hand and thereafter, on prayer of the then I.O, of this case (not CBI) the confessional statement of accused under Section 164 Cr.P.C was recorded by the Judicial Magistrate 1st Class on 25-01-1994 (after two days since his previous confession before Kadma police).
iv. It appears that the accused Lalit Chandra Biswas is a well educated person, who had expressed his wish to give his confessional statement in English language and hence we feel that he himself had full knowledge and awareness about the consequences of his confession before the Judicial Magistrate. Court shouldn''t be considered so naive and gullible, so as to believe that an educated person like the accused in the instant case would have implicated himself by confessing his guilt in such an infamous murder case, merely on the promise of a job by the police. This allegation of the accused appears to be an afterthought, a deviously ingenious way of escaping from the consequences of his confessional statement.
v. The Judicial Magistrate while recording the confessional statement of the Accused has substantially complied with all the precautionary rules enumerated in Section 164 , Cr.P.C., thereby ensuring that the confession was made voluntarily and out of free volition. It appears that the Judicial Magistrate had reasonably satisfied himself that the accused had made the confessional statement devoid of any pressure, threat, inducement and blandishment emanating from the police.
vi. The Accused has subsequently resiled from his confessional statement. The retraction was done 24 days after it was recorded in the Court of Judicial Magistrate, First Class, Jamshedpur. In the interregnum period i.e. between the time it was first made and when it was subsequently retracted from, the Accused had ample opportunity to tell the Chief Judicial Magistrate, before whom he was brought twice or thrice, that he had been coerced to make the confessional statement. Accused failed to avail of these opportunities which also clearly indicates that the retraction is a mere afterthought."
54. For the aforesaid reasons, we arrive at conclusion that confessional statement of accused recorded by the learned Magistrate appears to be voluntary and it was retracted because of an after-thought or advice.
55. As far as the applicability of the second test is considered, we have the case of
"The Court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test."
56. To compare the prosecution evidence with the confessional statement the table below can be perused.
57. The above chart, coupled with the evidence discussed for testing the voluntariness of confession unequivocally revealed that the confession recorded under Section 164 Cr.P.C (Ext-7) appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances. Therefore, we are of the view that Ext-7 is a true confession, which was made voluntarily. As a necessary corollary, we also hold that the retraction, which was made after 24 days, was merely an after-thought.
58. Let us now discuss extra-judicial confession made by accused Lalit Chandra Biswas. P.W-9 Shankar Das @ Dilip Das has unveiled about the extra-judicial confession made by accused Lalit Chandra Biswas, who lived in the house of this witness. According to P.W. 9, on 14-10-1993 when Raju came back at the time of lunch, he seemed perturbed. On being asked, he disclosed that ''he along with two-four boys (their names are not in his memory at present) have committed murder of V.G. Gopal'', whereupon he had ousted him from his house.
59. The lower court record reveals that when accused Lalit Chandra Biswas @ Raju was in judicial custody after his formal arrest on 25-01-1994, he absconded on or around August, 1994 and is shown to have been rearrested on 16-03-1995 by the CBI. It also reveals that during the investigation by I.O. of CBI (P.W. 27), a letter (Ext-4) with its envelop (Exhibit-5) was seized on 22-03-1995 from P.W-11, Kusumlata Toppo (ex girlfriend of the accused), which also reveals another extra- judicial confession of the accused Lalit Chandra Biswas, regarding the commission of murder of V.G. Gopal. This confession has further buttressed the evidentiary value of the confessional statement made by the accused before the Judicial Magistrate, 1st Class, under Section 164 , Cr.P.C. PW 11 has deposed in Court on oath that the said letter was sent to her by Lalit Chandra Biswas to her old address (P.N.B South extension New Delhi) from where it was redirected and thereafter received at her Safdarjung address (present address). PW 11 has also identified the accused in court and has also recognised his handwriting on letter and envelop. Contents of the letter disclosed that the writer of the letter i.e. the accused himself was the perpetrator of the murder of V.G. Gopal. Thereafter, an application was moved by the CBI for obtaining the specimen signature of the accused Lalit Chandra Biswas, for comparing his hand writing with the letter as well as the handwriting of the address scribed on the envelop which were allegedly seized from his ex-girlfriend (Kusum Lata -P.W-11). As per handwriting expert''s i.e. PW H.M. Saxena''s opinion, the handwriting in the letter as well as the address scribed on the envelope tallied with the specimen handwriting of the accused Lalit Chandra Biswas. Even otherwise, handwriting of Lalit Chandra Biswas is at no stage disputed.
60. On the basis of aforesaid evidence, we are of the view that Ext-7 is not only a true confession, which was made voluntarily but it has also been corroborated by two extra-judicial confessions made by the accused i.e. (a) confession made orally on the day of occurrence before his employer P.W. 9 on being asked about the reason for his vexed state of mind; (b) confession made in a letter to his ex-girlfriend (employee in PNB) seeking help to tide over the financial problems he was facing post the killing of V.G. Gopal. We, thus, are of the considered opinion that none of the confessional statements, whether judicial or extra- judicial, were affected by any vitiating factor like threat, duress, coercion or inducement and were thus not hit by the statutory bar under Section 24 Indian Evidence Act.
61. The scientific evidence also goes against accused Lalit Chandra Biswas as he had admitted that he had taken a double barrel pistol and bullets of 315 bore from his companion Kunna, who was cleaning the same alongwith other arms and used it at the time of occurrence. According to him one shot was misfired. Police recovered a double barrel and a single barrel pistol on having raided the house of Kunna on the basis of the confessional statement of Lalit Chandra Biswas before Kadma police. P.W. 27, who had sent the recovered pistols, projectiles and the emptied cartridges recovered from the scene of crime for ballistic examination to the C.F.S.L. has stated that the Ballistic Expert (P.W.18) confirmed that one of the bullets recovered from the scene of crime was fired from the double barrel pistol (Expert Opinion-Exhibit-6). P.W. 18 also opined that the right barrel of the double barrel country made pistol was not in working order in its present condition and thus also unveiled the reason why it misfired. This scientific evidence further bolsters the confession of accused as a cogent, truthful and reliable version.
62. Accused Lalit Chandra Biswas has not only confessed his guilt but also unveiled the complicity of Rajen Shukla, Amarendra Kumar Singh, Banti, Raja and Kunal Jena alias Kunna and Yogendra Sharma @ Munna Sharma.
63. Section 30 of the Evidence Act reads as:
"When more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and others of such persons is proved, the court may take into consideration such confession as against such other persons as well as against the person who makes such confession".
64. The question of evidentiary value of the confessional statement made by one accused against the other co-accused persons has been comprehensively discussed in
65. In
"In Principles and Digest of the Law of Evidence, Volume 1, New Edition, by Chief Justice M. Monir, after noticing conflicting views and discussing various authorities, the learned author stated the rule as follows : The rule may, therefore, be stated to be that whereas the evidence in proof of a confession having been made is always to be suspected, the confession, if once proved to have been made and made voluntarily, is one of the most effectual proofs in the law."
66. There is a plethora of case law available, holding that the confession of an accused recorded in the manner provided under Cr.P.C. and admissible under the provisions of the Evidence Act, even if retracted later, is a substantive evidence as against the maker thereof. Section 30 of the Evidence Act which deals with consideration of a proved confession affecting the person making it and others jointly under trial for same offence, is quoted below:
"A plain reading of Section 30 of the Evidence Act discloses that when the following conditions exist, namely, (i) more persons than one are being tried jointly; (ii) the joint trial of the persons is for the same offence; (iii) a confession is made by one of such persons (who are being tried jointly for the same offence); (iv) such a confession affects the maker as well as such persons (who are being tried jointly for the same offence); and (v) such a confession is proved in Court, the Court may take into consideration such confession against the maker thereof as well as against such persons (who are being jointly tried for the same offence)."
67. In the light of above discussed law, we can take the confessional statements of the accused, namely Lalit Chandra Biswas, into consideration against some accused persons, namely Amarendra Kumar Singh, Yogendra Sharma @ Munna Sharma and Kunal Jena alias Kunna, on the strength of Section 30 of Indian Evidence Act, as it fulfilled all the mandatory requirements.
68. Now, it is appropriate at this juncture to appreciate the rest of the evidence adduced along with the confessional statement of Lalit Chandra Biswas, recorded under Section 164 Cr.P.C (Ext-7) against the accused persons namely Amarendra Kumar Singh and Kunal Jena alias Kunna, who had taken part in this twin murder in furtherance of their common intention.
Evidence against Amarendra Kumar Singh:--
69. Ext-7 (the confessional statement of Lalit Chandra Biswas, recorded under Section 164 Cr.P.C) reveals that
* "He was present with other co-accused persons in a house situated at Pardesipada Mohalla, from where they proceeded for Tata Workers'' Union office.
* He reached the office of the Union, but on instructions of Rajen Shukla, he went to the gate of the Union office.
* According to the plan, Amarendra had shouted a slogan near the gate of the Union office just after the assassination, "whoever faces or tries to face Munna, will have to face the same fate and meet the same fate".
Rest evidence (other than confession recorded u/s. 164 Cr.P.C)
* "Informant has stated in the FIR that he saw two persons standing outside the main gate and one of them shouted "Jaldi Chalo Bahar Aaoo" to the accused persons, exhorting them to come out soon. Thereafter, both the miscreants went out of the main gate. He claims to have seen the miscreants and has identified them in TIP. TIP Chart (Ext-8) reveals that the informant had identified Amerandra Kumar Singh as the same person, who was present at the gate of the Union office and had asked his companions to come out of the premises of the Union Office just after the assassination.
* P.W.15 Prabhu Charan, the informant, at the time of adducing his evidence, has identified one person in TIP, who had shouted "Chalo Chalo", but on oath he showed some doubt in recognising the said accused in court. However, he has not refused to identify him. Learned trial court, which had the opportunity to watch the demeanour of the witness, has convicted Amerandra Singh, noting that it might be due to some changes in face after a lapse of a period of 11 years since occurrence till PW 15''s deposition in Court. We concur with the inference drawn by the Trial Court. Hence, we have no reason to take a contrary view."
Evidence against Kunal Jena alias Kunna:--
70. Ext-7 (the confessional statement of Lalit Chandra Biswas, recorded under Section 164 Cr.P.C) reveals that -
"i. When he reached the house situated at Pardesipada Mohalla, Raja, Banti, Amarendra Kumar Singh and Kunna were present. Kunna was cleaning a revolver sixer 38, a 9 mm pistol, double barrel and a single barrel.
ii. Kunal Jena reached at Union office but Rajen Shula sent him to the gate of the Union office.
iii. Kunna was riding a Bajaj scooter and after occurrence he tried to start it frantically, in order to escape but it didn''t start. He later tried to restart it."
Rest evidence (other than confession recorded u/s. 164 Cr.P.C)
"(a) On the basis of the confessional statement of Lalit Chandra Biswas before Kadma police, the house of Kunal Jena alias Kunna was raided and one double barrel pistol and one single barrel pistol were recovered.
(b) Investigating Officer (C.B.I.) P.W. 27 has stated that the recovered pistols, projectiles and the emptied cartridges recovered from the scene of crime were sent for ballistic examination to C.F.S.L and the Ballistic Expert (P.W.18) confirmed that one of the bullets recovered from the scene of crime was fired from the double barrel pistol. (Exhibit-6)
(c) P.W. 18 also opined that the right barrel of the double barrel country made pistol was not in working order in its present condition, thereby lending credence to the version of Lalit Chandra Biswas, who had admitted that one shot of the double barrel pistol had misfired at the place of occurrence."
71. From the aforesaid discussion wherein we have tried to meticulously appraise each relevant piece of evidence, we are of the considered view that there was sufficient evidence on record to hold that the prosecution has been able to prove the charge of twin murders in furtherance of common intention against three accused persons, namely Lalit Chandra Biswas alias Rajiv Sen alias Raju Amarendra Kumar Singh and Kunal Jena alias Kunna, under Section 302 read with Section 34 , IPC. Their presence as well as active participation in this double murder case stands proved beyond all reasonable doubts.
72. Since there is no evidence on record to show the presence and participation of accused Yogendra Sharma @ Munna Sharma, the evidence against him are to be scrutinized in terms of Section 10 of the Evidence Act. First of all, it would be better to summarise the evidence brought against him by prosecution.
73. Ext-7 (the confessional statement of Lalit Chandra Biswas, recorded under Section 164 Cr.P.C) reveals.
"i. When we had to finish the job it was planned to shout loudly by the time of killing that whoever faces or tries to face Munna will have to face the same fate and to meet the same fate only to create a terror.
As per plan he and Rajen had boarded in bus for Jahanabad and near Jahanabad, Amarendra and Munna Sharma stopped the bus thereafter Rajen Shukla deboarded the bus and went with Munna Sharma on Hero Honda while Amarendra boarded in bus and sat on his seat with him thereafter they went at village Kairvan, which is village of Munna Sharma.
ii. Munna Sharma introduced himself to him at his house and said that you are newcomer in the gang and will get profit.
iii. Munna Sharma disclosed the motive behind murder of V.G. Gopal as he wants power in Tisco Management and also wants his name to be a Terror. He further said that he was also interested in getting the present S.P. transferred from here by this way."
Rest evidence (other than confession recorded u/s. 164 Cr.P.C)
"a) Extra judicial confession of Lalit Chandra Biswas alias Rajiv Sen alias Raju (Ext-4) unveils that he was in financial crisis and asked his ex-girlfriend for financial help disclosing that he was involved in the killing of a leader named Shri V.G. Gopal Saheb in the order of our Boss. Although he would get sufficient amount but he (his boss) did not pay that much so he thought to meet him but he has been arrested.
b) P.W.7 is a relation of Munna Sharma and neighbour of Banti (absconder accused). He has stated that he knew Rajen Shukla alias Pandit and Amarendra Kumar Singh, who used to come to meet. He added that Banti used to call Munna Sharma as Boss. According to him, Banti had told him that the murder was committed in compliance of the direction of Boss.
c) P.W.10 has admitted that he had provided two bus tickets for Jahanabad as per the instruction of Rajen Shukla alias Panditji. He has identified Lalit Chandra Biswas alias Rajiv Sen, as the person to whom he had handed over tickets, who was present in accused dock at the time of deposing in the Court.
d) Yogendra Sharma alias Munna Sharma, at the time of recording of his statement under Section 313 Cr.P.C, had stated his address as village Kairvan, P.S Ghoshi, District Jahanabad."
74. Now the question of law arises as to whether the confessional statement of accused Lalit Chandra Biswas recorded under Section 164 Cr.P.C against Yogendra Sharma @ Munna Sharma, can be read in terms of section 10 of the Indian Evidence Act, particularly when his statement was recorded after the conspiracy had ended and he was arrested and sent in judicial custody.
75. Section 10 of Evidence Act runs inter alia, "Things said or done by conspirator in reference to common design.-Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it".
76. A three-Judge Bench of the Hon''ble Supreme Court in
77. There be clear distinction between communications between conspirators, while the conspiracy was going on with reference to the carrying out of conspiracy and statements made, after arrest or after the conspiracy has ended, by way of description of events then past.
78. In a case State (N.C.T. Of Delhi) v. Navjot Sandhu @ Afsan Guru (2012) 6 SCC 204 the law has been settled by the Hon''ble Supreme court that the statements made by the conspirators after they are arrested cannot be brought within the ambit of Section 10 of the Evidence Act, because by that time the conspiracy would have ended.
79. In the light of aforesaid settled position of law, we are of the view that neither the confessional statement of Lalit Chandra Biswas recorded under Section 164 Cr.P.C nor the extra judicial confession of Banti even before his arresting can be read against Yogendra Sharma @ Munna Sharma and hence we have to arrive at the conclusion that prosecution (CBI) has completely failed to bring even an iota of legal evidence against Yogendra Sharma @ Munna Sharma to substantiate the charge under Section 302 read with section 120B of the I.P.C.
80. We are conscious of the fact that it is accused Yogendra Sharma @ Munna Sharma who, in the entire case, appears to be the kingpin and also known as ''Boss'' as one finds from the evidence available on record, but the prosecution evidence available on record against him, when tested on the legal anvil, is not sufficient to connect him with the commission of alleged offence for which he stands charged. We thus, extend all benefit of doubt to him. However, with regard to the other three accused namely Kunal Jena @ Kunna, Lalit Chandra Biswas @ Rajiv Sen @ Raju and Amarendra Kumar Singh, after churning the entire prosecution evidence minutely and testing it within the parameters of settled legal position, we hold that the prosecution has been able to prove its case against these three accused beyond any shadow of doubt. The conviction and sentence slapped upon them vide impugned judgment deserves to be upheld. Ordered accordingly.
81. The net result now surfaces is that Criminal Appeal (DB) No. 177 of 2006 filed by Yogendra Sharma @ Munna Sharma is allowed. He is acquitted of the charges framed against him. Criminal Appeal (DB) No. 356 of 2006 filed by Kunal Jena @ Kunna and Criminal Appeal (DB) No. 365 of 2006 filed by Lalit Chandra Biswas @ Rajiv Sen @ Raju and Amarendra Kumar Singh stand dismissed.
82. Record reveals that accused Yogendra Sharma @ Munna Sharma is on bail. He is discharged from the liability of bail bonds. Accused Amarendra Kumar Singh is stated to be on bail as his substantive sentence was suspended during the pendency of the instant appeal. He shall now be taken in custody forthwith for the purposes of serving the sentence already imposed vide impugned judgment and now affirmed. Accused Lalit Chandra Biswas @ Rajiv Sen @ Raju and Kunal Jena @ Kunna are stated to be in custody as their prayer for suspension of sentence was declined by this Court. They shall serve the remainder of their sentence.
83. A copy of this judgment along with original records shall be sent to the learned trial Judge forthwith for compliance.
