SUPREME COURT ACQUITS THE APPELLANTS-ACCUSED OWING TO YAWNING GAPS IN THE CHAIN OF CIRCUMSTANTIAL EVIDENCE

A three Judge Bench of the Supreme Court comprising of Justice B.R. Gavai, Justice J.B. Pardiwala and Justice Sanjay Kumar passed a Judgment dated 21.09.2023, in Rajesh & Anr v. The State of Madhya Pradesh, Criminal Appeal No. 793-794 of 2022, and held that as the chain of circumstantial evidence failed to directly connect the Appellants-Accused to the death of the Deceased, hence, the Accused were given the benefit of doubt and thereby, acquitted.

Facts

(i) In the present case, one, Mrs. Rajwant Kaur, the Complainant (PW-1), who is the Mother of the Deceased- Ajit Pal @ Bobby (Deceased), filed a Complaint of ‘missing person’ before the Gorakhpur Police Station on 27.03.2013 at 16:15 hours, stating that on 26.03.2013, her son, Ajit Pal, left the house at 9 pm to see the ‘Holika’ and did not return.

(ii) On 28.03.2013, one, Amarjeet Singh @ Mitthu, brother of the Complainant (PW-2) and one, Om Prakash Yadav (Complainant’s Neighbor), went to the Gurudwara in Gwarighat to look for the Deceased. Although they did not find the Deceased at that place, but PW-2 received a call on his mobile phone from xxxxxxx (Mobile Number) while they were on their way back. The caller stated “I’m Khan speaking, and Bobby is with me. Send me Rs. 50 Lakh”.

(iii) When PW-2 went to PW-1 to inform her about the ransom call, PW-2 again received a call from the same Mobile Number, when PW-2 handed over his phone to his mother, PW-1. The caller stated ‘I’m with Bobby, your Bobby. Send me 50 lakh rupees, and if you inform the police or anyone else, I’ll kill Bobby by slitting his throat.’ PW-1 sought to speak to her son and warned the caller against harming her son. A voice then cried out, “Mummy, save me, Mummy, save me, I am Bobby.” PW1 claimed that when she heard Bobby’s voice, she sat down and the phone dropped from her hand.

(iv) On 28.03.2013 at about 3:30 pm, basing on the Complaint and details of the ransom calls, the Police registered an FIR No. 273/13 at 18:20 hours against unknown persons under Sections 364A of the Indian Penal Code, 1860 (IPC) (Kidnapping for ransom, etc) and 365 IPC (Kidnapping or abducting with intent secretly and wrongfully to confine person).

(v) Thereafter, the Investigating Officer (PW-16) obtained call records and IMEI information for the said Mobile Number from the Cyber Cell. The Cyber Cell notified PW-16 that the mobile phone handset with IMEI No. ####### was used to make the ransom calls and that the said handset was earlier used by the Complainant’s Neighbor, Om Prakash Yadav.

(vi) On 29.03.2013 at 13:45 hours, PW-16 interrogated one, Rajesh Yadav, brother of Om Prakash Yadav, the Complainant’s Neighbor, in the Police Station, where he admitted to killing Ajit Pal along with an accomplice, Raja Yadav, his brother. Further, Rajesh Yadav confessed in a Memorandum ( P8) that PW-16 recorded that he also promised to assist in finding Ajit Pal’s body and the murder weapon. PW-16 along with Rajesh Yadav visited the house of Om Prakash Yadav in Narmada Nagar, Gwarighat. They were taken to a well by Rajesh Yadav close to the Khandari Canal, which contained Ajit Pal’s body. It was packed inside a white plastic bag. The present witnesses recognised the body as that of Ajit Pal. The Police found hair samples (of Rajesh Yadav and Raja Yadav, which was later established from DNA reports) in the fingers of Ajit Pal’s right hand fingers and that his throat had been slit.

(vii) Thereafter, the PW-16 prepared a Panchayatnama and a Naksha Panchayatnama, which were signed by PW-2. An empty liquor bottle lying at some distance and an iron knife from the canal were seized under a Property Seizure Memo, at the behest of Rajesh Yadav. There were blood-like stains on the knife. The seizure was effected in the presence of witnesses under a Property Seizure Memo. Accused-Rajesh Yadav was then arrested on 29.03.2013 at 18:30 hours.

(viii) On 30.03.2013, PW-16 returned to Rajesh Yadav’s home in an effort to locate the SIM card for the aforementioned Mobile Number, but the SIM card could not be located. A House Search Panchnama (Ex. P37) was prepared in this regard. Thereafter, on 31.03.2013, Rajesh Yadav was again interrogated at the Gorakhpur Police Station in front of witnesses, and his statement was documented in a Memorandum (Ex. P15). He promised to assist in locating the cell phone that was used to place the ransom calls, which was said to be with his brother Brijesh Yadav.

(ix) Thereafter, on 31.03.2013, Brijesh Yadav, another brother of the Accused was taken to the Police Station and was interrogated. In a Memorandum (Ex. P17), the confessed statement of Brijesh Yadav was recorded i.e. “he had hidden the mobile phones that were given to him by his younger brother Rajesh Yadav in a bag in his room.”

(x) On 31.03.2015 at 15:00 hours, PW-16 interrogated Raja Yadav in Gorakhpur Police Station in the presence of witnesses. He confessed that he had hidden the blood-stained clothes worn by him at the time of the incident. His statement was recorded in a Memorandum (Ex. P16) and thereafter he took the police and witnesses to his Dairy in Narmada Nagar, where his clothes, with blood-like stains, were seized under a Seizure Memo (Ex. P18). Thereafter, the Accused-Raja Yadav was also arrested.

(xi) The Postmortem Report (Ex. P7) of the Deceased prepared by Dr. Vivek Shrivastav (PW-7) on 30.03.2013 indicated that the death had occurred 3 to 5 days prior to the examination and that the cause of death was haemorrhagic shock which occurred due to the throat being cut prior to death.

(xii) Thereafter the Police filed a Charge Sheet before the Ld. Additional Sessions Judge, Jabalpur, Madhya Pradesh (Trial Court).

(xiii) Thereafter the Trial Court passed a Judgment dated 29.12.2016 by convicting all three Accused, Om Prakash Yadav, Rajesh Yadav and Raja Yadav on different counts:

(xiv) That Om Prakash Yadav was held guilty under Section 364A of IPC read with Section 120B IPC (Punishment of criminal conspiracy) sentenced to life imprisonment along with default imprisonment of two months, if he failed to pay a fine of 2,000/-.

(xv) That Raja Yadav and Rajesh Yadav were held guilty of offences under Section 302 IPC (Punishment for murder) read with Section 120B IPC; Section 364A read with Section 120B IPC; and Section 201 IPC (Causing disappearance of evidence of offence, or giving false information, to screen offender). They were sentenced to death for the offences under Sections 302 and 364A IPC and to two months default imprisonment each, if they individually failed to pay the fine amounts of 1,000/- Both of them were also sentenced to five years rigorous imprisonment and payment of fine of 500/- each in relation to the offence under Section 201 IPC coupled with one month’s default imprisonment.

(xvi) Aggrieved by the Trial Court Order dated 29.12.2016, the Appellant-Accused, Om Prakash Yadav filed a Criminal Appeal before the High Court of Madhya Pradesh (High Court) in Criminal Appeal No.83 of 2017 and the Appellants-Accused, Rajesh Yadav and Raja Yadav filed Criminal Appeal No. 84 of 2017, before the High Court seeking setting aside of Trial Court Order dated 29.12.2016. The Appeals were clubbed with ‘In reference CRRFC-1 of 2017’ by the High Court.

(xvii) The High Court dismissed the Criminal Appeals filed by the Accused vide Order dated 10.08.2017 by upholding the Ld. Trial Court Order dated 29.12.2016.

Supreme Court Analysis

Aggrieved by the High Court Order dated 10.08.2017, the Appellant-Accused filed Criminal Appeal No. 793-794 of 2022 before the Supreme Court. The Apex Court passed a Judgment dated 21.09.2023 and observed as follows:

(1) That as per the statement of a witness, Puran Singh (PW-3), who was allegedly used by the Prosecution as a witness to support a “last seen” theory to strengthen its case, the PW-2 and PW-3’s daughter were married and that PW-3 knew the Accused. He asserted that he went to Narmada Nagar on 26.03.2013, at 6 p.m., to deliver a box of candy to his daughter in honour of Holi and that after leaving from his daughter’s house, he encountered Raja Yadav, Rajesh Yadav, and Ajit Pal at the railway crossing. It was after nine o’clock when he met the Deceased- Ajit Pal who then informed PW-3 that he would be viewing the “Holika”. PW-3 then went home and was informed by his daughter on 28.03.2013 that Ajit Pal had been kidnapped and ransom calls had been made. On 29.03.2013, his daughter informed him that Ajit Pal’s dead body was found inside a well and that Raja Yadav, Rajesh Yadav, Brijesh Yadav and Om Prakash Yadav had helped the Police to recover it. PW-3 also stated that he went for Ajay Pal’s last rites on 30.03.2013 and when he met the Town Inspector at the crossing, he told him that he had met Ajit Pal along with Raja Yadav and Rajesh Yadav on 26.03.2013.

(2) That the Prosecution’s case clearly reveals that it is poised entirely on circumstantial evidence as there was no eyewitness to the kidnapping and murder of the Deceased.

(3) That in Chenga Reddy and others vs. State of A.P (1996) 10 SCC 193 in respect of circumstantial evidence, the prosecution must establish a chain of unbroken events unerringly pointing to the guilt of the accused and none other.

(4) That there is no clarity as to the time at which the Deceased went missing. Ex. P1, being the ‘missing person’ Complaint filed by the Complainant, recorded that Ajit Pal left the house on 26.03.2013 at 9 o’clock and went somewhere and that he was searched for but was not found. Significantly, there is no mention therein of whether it was at 9 am or 9 pm that Ajit Pal had left the house or that it was to see the ‘Holika’.

(5) That according to FIR No. 273/13, the Deceased departed the residence on 26.03.2013, at “9 in the morning,” without telling anyone, which was filed on 28.03.2013, at 18:20 hours. It was noted that he was looked for everywhere but could not be located. Again, there is no indication of the Deceased having visited the Holika, but there is obvious doubt as to whether Deceased went missing on 26.03.2013, at 9 a.m., or at 9 p.m.

(6) That PW-2 stated in his examination-in-chief that the Police caught Rajesh Yadav and took him to Gorakhpur Police Station during the afternoon hours of 28.03.2013. During his cross-examination, PW-2 asserted that the Police did not take Om Prakash Yadav on 28.03.2013 but they took Rajesh Yadav and Raja Yadav.  PW-2 categorically denied the fact that the Police did not take Raja Yadav and Rajesh Yadav on 28.03.2013 and that they took them on 29.03.2013.

(7) According to one, Princy Thakur (DW-2), her mother used to work for Om Prakash Yadav, and hence, she used to frequently visit their home. She stated that on 27.03.2013, between 3 and 4 p.m., the Gorakhpur Police detained Raja Yadav and Rajesh Yadav and took them to the police station for questioning. She claimed that on that day, between 8 and 9 o’clock, the Police had taken her as well to the Police Station for questioning. She claimed that the cops had taken all of their cell phones. She claimed that Raja Yadav and Rajesh Yadav were severely beaten by the cops. She added that Rajesh Yadav had his hair torn out and that the three of them had been interrogated day and night. She said that the Police seized her mobile and she got it back through the Court. The Evidence of DW-2 remained practically unshaken during her cross-examination.

(8) That in Bodhraj alias Bodha and others vs. State of Jammu & Kashmir (2002) 8 SCC 45, the Supreme Court held that in respect of Section 26 of the Evidence Act 1872 (Confession by accused while in custody of Police not to be proved against him)

“the requirement of ‘police custody’ is productive of extremely anomalous results and may lead to the exclusion of valuable evidence in cases where a person, after committing a crime meets a police officer and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him, and he is subsequently taken into custody and becomes an ‘accused’. This Court pointed out that this information, which would otherwise be admissible, becomes inadmissible under Section 26 of the Evidence Act as it did not come from a person in the ‘custody of a police officer’ or rather, came from a person not in the ‘custody of a police officer”.”

(9) In State of Karnataka vs. David Rozario and another Criminal Appeal No. 1439 of 2009, decided on 12.01.2023 the Apex Court held that in respect of statements made by an ‘Accused’ in ‘Police Custody’ to be proved.

“Section 27 of the Evidence Act 1872 (How much of information received from accused may be proved) is brought into operation when a person in ‘police custody’ produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime, of which the informant is accused”

(10) In the present case, the Apex Court observed that though Rajesh Yadav was taken to the Police Station, on 29.03.2013 or even earlier, he could not be said to be in ‘Police Custody’ till he was arrested at 18:30 hours on 29.03.2013, as he did not figure as an ‘Accused’ in the FIR and was not ‘Accused of any offence’ till his arrest. Therefore, it was his arrest which resulted in actual ‘Police Custody’. Hence, the confession made by him, before such arrest and prior to his being ‘Accused of any offence’, would be directly hit by Section 26 of the Evidence Act and there is no possibility of applying the exception under Section 27 to any information given by him in the course of such confession, even if it may have led to the discovery of any fact.

(11) In Khet Singh vs. Union of India (2002) 4 SCC 380, the Supreme Court held that in respect of seizure of evidences, if there is a procedural illegality in conducting the search and seizure, the evidence collected thereby would not become inadmissible and the Court would consider all the circumstances to find out whether any serious prejudice has been caused to the accused. However, if the search and seizure were in complete defiance of the law and procedure and there was any possibility of the evidence collected having been tampered with or interpolated during the course of such search and seizure, then that evidence could not be admitted.

(12) That in the present case, the seizure of the blood-stained soil, controlled soil, plastic slippers, liquor bottle, the body of the Deceased and his clothes along with the hair found in his right fist, seizure of the murder weapon, the two mobile phones; etc and the witness statements thereof did not disclose as to how these objects were discovered, i.e., at whose instance and how.

(13) That the Accused’s height was more than 5.7” and the Deceased’s height was 5.4”, hence, the Deceased could not have caught hold of a much taller Accused’s hair.

(14) That the Mobile Number from which ransom calls were made, was in the name of one Bhuraji, s/o Deepu, and his address was available. However, the Police did not even attempt to contact Bhuraji or examine him to find out how and why his SIM card was used for making the ransom calls.

(15) That Dr. Vivek Shrivastav, who conducted the postmortem examination, stated that semi-digested food was found in the stomach of the Deceased and it would have been consumed less than six hours prior to death. According to him, it could have been 30 minutes or 1 hour. He also stated that if alcohol is consumed with food and death occurs within 1 hour thereafter, then it is possible for the semi-digested food to traces of alcohol. He admitted that he did not find any such traces of alcohol.

(16) That unsatisfactory Police Investigative standards seem to be the constant standard of investigation in India. In the year 2003, the Report of Dr. Justice V.S.Malimath’s ‘Committee on Reforms of Criminal Justice System’ had recorded as follows:

‘The manner in which police investigations are conducted is of critical importance to the functioning of the Criminal Justice System. Not only serious miscarriage of justice will result if the collection of evidence is vitiated by error or malpractice, but successful prosecution of the guilty depends on a thorough and careful search for truth and collection of evidence which is both admissible and probative. In undertaking this search, it is the duty of the police to investigate fairly and thoroughly and collect all evidence, whether for or against the suspect. Protection of the society being the paramount consideration, the laws, procedures and police practices must be such as to ensure that the guilty are apprehended and punished with utmost dispatch and in the process the innocent are not harassed. The aim of the investigation and, in fact, the entire Criminal Justice System is to search for truth. ……The standard of police investigation in India remains poor and there is considerable room for improvement. The Bihar Police Commission (1961) noted with dismay that “during the course of tours and examination of witnesses, no complaint has been so universally made before the Commission as that regarding the poor quality of police investigation”. Besides inefficiency, the members of public complained of rudeness, intimidation, suppression of evidence, concoction of evidence and malicious padding of cases…..’

Conclusion

Thus, based on the aforesaid observations and laws, the Supreme Court held that the facts that came to light during the trial had yawning infirmities and gaps in the chain of circumstantial evidence that failed to directly connect the Appellants-Accused to the death of the Deceased. Hence, the Appellants-Accused ought to be given the benefit of doubt and be acquitted. Thus, the Appeals filed by the Appellants were allowed and the High Court Order dated 10.08.2017 and the Trial Court Order dated 29.12.2016 convicting the Appellants-Accused were set aside.

Suneel Kumar Jaiswal

Associate

The Indian Lawyer