Ritesh Choudhary @ Ritesh Kumar Choudhary vs The State Of Bihar

(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)

In the course of hearing these batch of appeals, we were constantly confronted with the question as to whether the duty of the Court is confined merely to following the requirements of the statutory provisions contained in the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act, while adjudicating upon a horrific and barbaric act of criminality involving the murder of a young boy by burying him alive. This question arises, especially, in view of lackadaisical and negligent investigation on the part of the Investigating Officer.

We found during the course of hearing that the Investigating Officer had failed to adhere to the basic requirements for collecting legally admissible evidence necessary to establish the charges against the accused persons beyond reasonable doubt. Consequently, the Trial Court was constrained to rely upon, and at times, even accept evidence that was inadmissible in law while recording the conviction and imposing sentence. The said judgment of conviction and order of sentence have been brought before us by the appellants for judicial scrutiny in these appeals.

It is one of the cardinal axioms of the administration of criminal justice that the prosecution is under an obligation to prove the charge against the accused persons beyond any shadow of reasonable doubt. There cannot be any rule of preponderance applicable in criminal trials. The charge is required to be proved based on evidence admissible under the law. Inadmissible evidence, however strong it might be, cannot lead the Court to pass an order of conviction and sentence. We are also aware that, while considering an appeal against the order of conviction and sentence, we are not supposed to overburden our conscience considering the nature of the offence. Only when an offence is proved to the hilt by the witnesses, a charge is said to be established.

With the above introduction, we proceed to discuss the prosecution case.

A young boy in his teens was found missing on and from 14^th November, 2016. On the following day, the father of the boy made a complaint before the SHO, Katihar P.S., stating, inter alia, that on 14^th November, 2016 at about 3:30 pm., he went to the house of one Sachidanand Tiwari situated near Bada Baazar, Katihar to take private tuition. Thereafter, he did not return to his house. The informant asked Mr. Tiwari about his son and he informed him that his son did not come to take tuition on 14^th November, 2016. Over the said complaint, police registered Katihar P.S. Case No. 741 of 2016, dated 15^th November, 2016 and took up the case for investigation. In the course of investigation, firstly, one Ritesh Kumar Chaudhary was arrested from Manihari, Katihar, on 28^th February, 2017. Subsequently, other accused persons, namely, Deepak Jha, Sanjay Sharma, Kishan Chaudhary, Kunal Paswan and Amar Chaurasia were arrested in connection with this case on the basis of phone Call Details Report (CDR). According to the I.O., the principal accused, namely, Ritesh Choudhary made a statement to the police that on 5^th November, 2016 when Saurabh came to the house of his paternal grandfather at Motihari to perform Chhath Puja, Ritesh and Sanjay went to the house of Saurabh and introduced Sanjay with him. Again on 11^th November, 2016, he came to Katihar to meet Saurabh and on 13^th November, 2016, he met him in Vatika Madhuban Restaurant, along with his friends and all of them had food in the said restaurant. On 14^th November, 2016, Ritesh and Saurabh came to Shaheed Chowk in Katihar. On the way, Saurabh told Ritesh that he needed to meet some person in Motihari. Ritesh then and there contacted his friends and they were waiting at Nawabganj for Saurabh. At about 05:00 pm, Saurabh reached Nawabganj, he visited different areas at Motihari with Ritesh and his friends by Motorcycle and Cycle. At about 07:00 pm, the appellants purchased a bottle of Sprite cold-drink, one Deepak Jha brought some intoxicating material/drug with him. Another friend of Ritesh Choudhary, namely, Kishan Chowdhary mixed the intoxicated drug with the cold-drink in a plastic glass and offered it to Saurabh. Saurabh consumed the same, he became unconscious and fell down on the ground. As the accused persons had no other place to confine Saurabh, they decided to bury his body in the agricultural land of Deepak Jha. Then, they brought Saurabh by a motorcycle while the pillion rider was holding him (Saurabh) on the middle of the seat and they brought him to the agricultural land of Deepak Jha. Deepak Jha and others dug a deep trench on a portion of the land and buried him alive in a sitting position, taking away his red- colored T-shirt and a pair of jeans pant from his body. Trench was filled with earth and subsequently, Deepak sowed seeds of mustard on it. The Investigating Officer recorded the statement of Ritesh and arrested other appellants. During search, number of mobile phones were recovered from them with multiple SIMs. The Investigating Officer obtained Call Details Report (CDR) from the concerned office of the Police Department and found that on some occasions other appellants made phone calls to the father of the deceased, i.e., the informant, demanding ransom of Rs. 50,000,00/- (Fifty Lakhs). They also went on bargaining at the rate of ransom from 50,000,00/- to 40,000,00/-, and then to 30,000,00/-. In order to scrimp himself, Ritesh started to go to the house of the informant very often, apparently to take information about Saurabh. On one such occasion, he dropped the red-colored T-shirt of the deceased in a drain near the house of the informant, in order to create a scene that Saurabh was kidnapped from Katihar itself. Even after the victim was buried, one of the appellants made a phone call to the informant to give the impression that Saurabh was alive saying that his jeans and bag would be available from a particular place. The informant and others rushed to that place and recovered the same. Based on the statement made by the Ritesh Choudhary, Ritesh described and identified the place where Saurabh was buried. Police dug out the said place by a JCB but on the first day they did not find the body. On the second day, it was further dug and absolutely decomposed body of a boy, mainly the skeleton in sitting position was recovered from the said trench. After recovery of the dead body and collecting evidence of demanding ransom, the I.O. made a prayer to add Section 365/364A/302/201/120 B/34 of the IPC against the appellants.

Investigation of the case concluded with submission of the charge-sheet. As the case was exclusively triable by the Court of Sessions, the case was committed to the Court of learned Sessions Judge, Katihar.

It was registered as Sessions Trial No. 259 of 2017. By judgment dated 25^th April, 2019, the learned Sessions Judge convicted accused Ritesh Choudhary for the offence punishable under Section 302 of the I.P.C. However, remaining accused persons were acquitted of the charge for the offence under Section 302 of the I.P.C. Accused Ritesh Choudhary and Deepak Jha were also found guilty for offence under Section 201 of the I.P.C.

Appellant Ritesh Choudhary, Amar Chaurasia, Deepak Jha and Kunal Paswan were also convicted for the offence punishable under Section 120(B) read with Section 364 A of the IPC. The appellants, namely, Ritesh Choudhary and Deepak Jha were sentenced to suffer imprisonment for life for the offence punishable under Section 302 of the IPC. The above-named appellants were sentenced to suffer rigorous imprisonment for seven years with fine and default clause for the offence punishable under Section 201 of the IPC.

Furthermore, all the appellants were sentenced to suffer imprisonment for life with fine and default clause for the offence punishable under Section 120(B) read with Section 364A of the IPC. The appellants have preferred the above-named appeals separately, challenging the order of conviction and sentence.

In order to prove its case, prosecution examined altogether 22 witnesses. The names and identity of the witnesses are as follows:-

Chandra Narayan Singh (PW-1) was posted as Circle Officer on 28^th February, 2017 at Manihari. As per the order issued by the District Magistrate dated 28^th February, 2007, he was present as a witness along with the Investigating Officer and other Police Officers of Town P.S. and Manihari P.S. At the time of digging out of trench on a lane situated on the Eastern Side of Baghmara Railway Station with the help of JCB machine on 28^th February, 2017 and 1^st March, 2017, the dead body of the deceased was recovered, as per the identification of the place of digging by Ritesh Choudhary and Deepak Jha. The dead body of Saurabh was identified by his father and other relatives. The place from where the dead body was recovered was the ancestral agricultural land of Deepak Jha.

We propose to deal with the cross-examination of the witnesses, subsequently at the time of appreciation of evidence.

Sachidanand Tiwary (PW-2) was the private tutor of the deceased Saurabh. On 14^th November, 2016, the deceased did not attend his tuition class. The family members of Saurabh called him over mobile phone and asked him as to whether Saurabh went to attend the tuition class or not, he answered in the negative. Subsequently, he came to know that the deceased was murdered by burying him alive inside a trench.

Nisha Kumari (PW-3) is the elder sister of deceased Saurabh. According to her, Saurabh left the house on 14^th November, 2016 at about 05:15 pm. to attend tuition class in the house of the PW-2, since then he did not return to his house. PW-3 informed her father and he immediately came to the house. He contacted Saurabh’s teacher in the private tuition but the teacher (PW-2) told him that Saurabh did not come to attend his class. PW-3 and her family members conducted search but did not find the deceased anywhere. On the following day, the informant lodged a written complaint in the local Police Station. It is further ascertained from the evidence of PW-3 that on 13^th November, 2016, Ritesh Choudhary came to their house, he is the cousin-brother of the informant and PW-3 called him uncle. Ritesh Choudhary was a frequent visitor of the house of the informant. According to PW-3 whenever he came to the house, he used to talk to Saurabh privately. On 13^th November, 2016, Ritesh met Saurabh in his house and they had a private conversation. He also brought his friends and introduced them to Saurabh. In this way, Ritesh and his friends befriended Saurabh. They spent one night during Durga Puja of 2016 and whenever they used to visit some place, they took Saurabh with them too. On the next day after his disappearance, the above-named accused came to informant’s house, when he heard from the family members of Saurabh that he was missing, he started visiting the house almost daily. Seven days after the date of missing, Ritesh came with accused Amar Chaurasia and Kunal Paswan and told the family members of the deceased that he and his friends were trying to find Saurabh’s whereabouts.

It is further ascertained from the evidence of PW-3 that after seven days of Saurabh’s disappearance, Ritesh Choudhary and Amar Chaurasia came to the house of the informant and after some time Amar left the house but Ritesh stayed in the house. On the next day, in the morning at about 09:00 or 10:00 am, he asked for some water to wash/rinse his mouth. He did not use the wash basin or the place around the tube-well of the house to rinse out the water in his mouth but went towards the drain situated at some distance from the house of the informant. From that place, Ritesh called the mother of the deceased to see whether her Petticoat had fallen in the drain. Both the witness and her mother came near the drain and Ritesh himself dragged a red-colored T-shirt kept concealed in the drain with the help of a stick. He also brought out a letter from the drain, demanding ransom of Rs. 50,000,00/- (Fifty Lakhs) in order to release Saurabh. In the said letter also, it was written that money in the denomination of Rupees Five Hundreds and One Thousand notes would not be accepted because at the relevant point of time note-bandi (demonetization) was in operation. PW-3 informed the matter to the police. Police came to their house and seized the said T-shirt and letter. On that very day, the father of the PW-3 received a phone call directing him to arrange for the ransom money and take back Saurabh alive. Again after 4 or 5 days, the offenders called the father of the PW-3 demanding ransom and asking him.

Gopal Kumar (PW-11) is the witness to the seizure of a red-coloured T-Shirt belonging to Saurabh Chaudhary. In his presence, his signature on the seizure list was marked Exhibit 7. On 29^th November 2016, the I.O. of this case showed a letter, demanding ransom of Rs. 50,000,00/- (Fifty Lakhs), allegedly written by one Qadir Khan for the kidnapped boy. The witness also put his signature on the seizure list of the said letter which was marked as Exhibit 8. The witness also stated that the said T-shirt and the letter were recovered from a drain near Amla Tola House where Saurabh along with his family members used to reside.

Shashi Kumar Jaiswal (PW-12) was a resident of Katihar. He is the son of informant, namely, Jay Kumar Choudhary @ Jai Prakash Choudhary. It is ascertained from his evidence that on 10^th December 2016, Jay Kumar Choudhary received a phone call, the caller described his identity as one Qadir Khan. He told him that the personal belongings of Saurabh were kept concealed under a seat of a railway station situated by the side of Mangal Bazar Sabzi Market, on the way to Manihari. After receiving the phone call, Jay Kumar Chaudhary and the witness went to the spot and recovered one wet jeans pant with stains of mud and sand in a bag. The witnesses brought the Jeans Pant to the house. The informant showed it to all the family members, who identified the same as Saurabh’s. Then the informant along with the witness no. 12 came to Katihar Police Station and handed over the said jeans pant to the police. The Police seized the said pant under the seizure list where PW-12 put his signature as a witness to his signature on the seizure list is marked as Exhibit 9.

PW-13, namely, Amit Kumar Patel, identified his signature on 6 numbers of seizure list and arrest memo which were marked as Annexures 10 and 11 series. However, he did not support the prosecution’s case and stated on oath that his signature was obtained on some white blank papers.

Satyendra Prasad (PW-14) produced a sealed packet in connection with seized materials of Katihar Town P. S. Case No. 741 of 2016, the wife of the witness informed him over phone that Saurabh did not return even at 07:00 pm. The witness then closed his office and went to the house of the private tutor. He came to know that his son did not attend tuition class on the said date. Thereafter, he came to his house, conducted search in the houses of his friends of his school known to him but he did not find him. Thereafter, he informed the matter orally to the local police. The SHO told him to wait for the night to see as to whether he would return or not. Since, he did not return on night of 14^th November 2016, the witness made a complaint in Katihar Town P.S. Over the said complaint, a case under Section 363 of the IPC was registered. When he reached his house from the police station, he found his cousin brother, namely, Ritesh Chaudhary staying in his house. He also informed him that he did not know whereabouts of Saurabh. On the same date, the SHO of Katihar Town P.S. called the informant to the police station and showed him his other adjoining areas’ CCTV footage of the locality, on perusal of which, it was found that the son of the informant was going through the road with a backpack. The SHO also showed CCTV footage of different areas of the Town and the informant found that he went up to Rajendra Stadium. On being requested, the SHO of Katihar Town P.S. handed over the relevant CCTV footage to the informant in a pen-drive. On 16^th November, 2016 at about 08:30/08:45 pm, Ritesh again came to the house of the informant. He stayed whole day in the house of the informant and left during the evening. Thereafter, he used to come regularly to the house of the informant and in the evening go back to Manihari. The informant also stated that on 11^th November 2016, Ritesh came to his house and told his wife that he wanted to open a mobile phone shop. At this, wife of the informant told him to bring a mobile phone set for Saurabh. On the next day, he brought a small Samsung brand mobile phone set for Saurabh. Saurabh did not like it because he wanted a high-end touch screen mobile phone. Then, Ritesh took him to the Katihar Market. Both of them had their dinner in a restaurant in Katihar and brought some preparation of chicken for the family members. During the said night, Ritesh stayed in the house of the informant. He slept with Saurabh in the same room. On the following morning on 14^th November 2016, Ritesh left for his house at Manihari at about 06:20 am and Saurabh left for his school at about 06:30 am. It was stated by the informant further that Saurabh generally used to go to the school by school bus which had a stop in front of Nandwani Handloom Shop but on the date of occurrence, he boarded the bus from Saheed Chowk. Two days after Saurabh’s missing, Ritesh came to the house of the informant with his friend Sanjay Sharma and stay there for the whole day. On the next day, he again came to the house of the informant and went to the courtyard inside the house where the mother of the informant was taking her food sitting on a cot. Ritesh then asked for a glass of water and rinsed out the water after washing his mouth in a drain adjacent to the house. While rinsing out the water, Ritesh called his wife and asked her whether any of her garments had fallen in the drain from the roof. He showed his family members that some cloth was lying deep inside the drain. Then, Ritesh himself brought out the said cloth with the help of a stick from the drain and it was found that it was the T-shirt worn by Saurabh on the date of occurrence. Seeing the T-shirt, the informant and others were apprehensive. After about an hour, Ritesh again went towards the drain and came back with a letter where a demand of ransom amounting to Rs. 50,000,00/-(Fifty Lakhs) and safe return of Saurabh was demanded. It was allegedly written by one Qadir Khan. The informant immediately communicated the incident to the local police station. Police came to his house and seized the said T-shirt and the letter. The said T-shirt was marked as material exhibit no. A. The informant did not produce letter demanding ransom before 29^th November, 2016 because Ritesh told them that the letter contained some words of threat that Saurabh would be murdered if such information is tried to be passed to the police. However, on 29^th November 2016, the said letter was handed over to police. The said letter dated 24^th November, 2016 marked as Exhibit-B. Two days after the said incident, the informant got a phone call from mobile no. 9097261332, the caller asked him to arrange for the ransom money as early as possible. Again after about 4 or 5 days, the wife of the informant received the same phone call from the same phone number. When the wife of the informant said that they did not have the financial capacity to arrange for a sum of Rs. 50,000,00/- (Fifty Lakhs), then the caller told her to arrange a sum of Rs. 40,000,00/-(Forty Lakhs). After much bargaining, the caller lastly told her to pay a sum of Rs. 30,000,00/- (Thirty Lakhs) towards ransom. He also threatened her saying that if such conversation was disclosed to the police, Saurabh would be finished. Again, after a lapse of 4/5 days, maternal nephew of the informant, namely, Sunny, received a phone call demanding a ransom. On 10^th December, 2016, the kidnapper(s) contacted Sunny over phone by Mobile SIM Card No. 9097260942 and stated that some personal belongings of Saurabh were lying under a seat in a small railway platform situated before Manihari Station. After getting the said information, the informant, his brother and others went to the said Station and recovered a packet containing a wet jeans pant lying under the seat made for the passengers on the railway station. They brought the pant to their house, the family members of the informant identified the pant to be of the missing boy. The said pant was then handed over to police who seized the same under the seizure list. In the meantime, the informant, Sunny, the brother of the informant, namely, Ajay Kumar Chaudhary, his wife Jyoti received phone calls from 9097261332, 8294741732, 7549235916, 8678051019, 9097260942 and some other numbers demanding ransom with dire consequence of the son of the informant. When the informant started getting such phone calls, he started recording the phone calls in his mobile. However, the I.O. did not seize his conversation between the informant and the kidnapper(s) to take appropriate step for identification of the miscreants by voice identification test. For the first time, the kidnapper (s) asked the informant to come to Nawgachia with ransom amount. They also told two persons to send Sahibganj where Saurabh would be handed over. However, the informant could not arrange such huge amount of money. He informed the matter to the police. Again, the kidnapper(s) told him to hand over the ransom amount at Araria. The informant informed the matter to the Superintendent of Police. The Superintendent of Police suggested him to go to Araria with a bag. When the informant went to the office of the S.P. with the bag, the S.P. attached a GPS Device in the bag and told him to take the money without removing the GPS Device. He also stated that Police Force would follow the informant. On the way to Araria, the Kidnapper(s) talked to the informant. At about 02:00am at night, the informant and others reached Araria but nobody came to receive the ransom money. The informant tried to contact them over phone on which he received phone calls but the said phone numbers were switched off. The Superintendent of Police then directed the team of police officers to examine CCTV footage. On examination of the CCTV footage, police found that Saurabh boarded a tempo from the opposite side of his coaching center to go towards Manihari, his face was wrapped with a handkerchief. The I.O. managed to identify the tempo and brought the driver of the said tempo to the police station. Seeing the CCTV footage, the tempo driver told the police party in presence of the informant that the son of the informant hired his tempo to go to Manihari. He got down from the tempo either at Manihari or Nawabganj which the driver could not remember. The I.O. then took him to the Superintendent of Police. The Superintendent of Police interrogated him to know if there was anybody at Manihari who had frequently contacted with his son. Then, the informant took the name of his cousin-brother Ritesh. The Superintendent of Police took the mobile phone number of Ritesh. Police took entire information about frequent visit of Ritesh to the house of the informant commencing from few days before the incident and almost regularly after the incident and he used to deal with the business of purchasing and selling of mobile phones. The I.O. collected the Call Details Report (CDR) of Ritesh Choudhary and on examination, it was found that during the period between 1^st November, 2016 and 13^th November, 2016, Ritesh used to call the family members of the informant 4/5 times a day. But during the period between 14^th November and 15^th November 2016, he contacted the family members of the informant for about 65/70 times. He contacted the informant and his family members on 15^th November, 2016 by conference call. The police officer also received the phone number/Sim Card numbers of the kidnapper(s) who demanded ransom from the informant. The informant gave the said numbers to the Superintendent of Police. On examination of CDR, the Superintendent of Police took the informant to Manihari by his police vehicle at Manihari. Deepak Jha saw the informant and police party in police vehicle and started running away. However, he was apprehended by police party and made to board the car. Thereafter, Ritesh and other accused persons were apprehended. On interrogations, the accused persons disclosed that Saurabh was buried alive in the agricultural land of Deepak Jha. Police asked Deepak to identify the said place. Thereafter, the said place was dug and deep trench was made with the help of JCB machine. On the first day, the dead body of Saurabh was not recovered but on the second day, it was further dug and a highly decomposed dead body, mainly skeleton of a human being was recovered from the said trench dug in the agricultural land of Deepak Jha.

Amit Kumar (PW-16) stated in his evidence that on the 01^st March 2017, police arrested Ritesh Choudhary, Amar Kumar Chaurasia @ Amar Kumar, Kunal Kumar and two other accused persons and recovered mobile phone set and number of Sim cards from them. The said mobile phones and sim cards were seized in his presence. The seizure list were marked as Exhibit-16 series. The Signature of PW-16 on the said seizure list were marked as Exhibit 16 to 16/5.

Vikash Kumar Singh (PW-17) stated in his evidence that on 01^st March 2017, hearing the hue and cry, he went to the agricultural land of Deepak Jha and found that a portion of the land was being dug and a dead body was recovered. The family members of the deceased identified the dead body as that of Saurabh’s. Police prepared an Inquest Report at the spot where PW-17 and one Ranjit Yadav put their signatures. On his identification, the signature of PW-17 and said Ranjit Yadav was marked as Exhibit 17/1 and 17/2 respectively. On the basis of the said Inquest Report, penal provisions under Section 363, 365, 364A, 302, 201 and 120 B of the IPC were added.

Raja Kumar Sah (PW-18) is a resident of Manihari. On 01^st March 2017 police arrested Ritesh Choudhary. PW-18 put his signature on the arrest memo of Ritesh. The signature of the witness has been marked as Exhibit-18. He also signed on the arrest memo of Sanjay Kumar Sharma which has been marked as Exhibit- 18/1. The signature of the witness on the arrest Memo of Kunal Kumar, Amar Kumar Chourasia, Kishan Choubey and Deepak Kumar Jha were marked as Exhibit 18/2, 18/3, 18/4 and 18/5 respectively.

Ranjit Kumar Yadav (PW-19) is another resident of Manihari. He is also a signatory on the Inquest Report of the deceased.

Nirmal Kumar Yadvendu (PW-20) was the I.O. of this case. It appears from his evidence that initially the investigation was handed over to S.I. Dinesh Kumar but by an order dated 20^th November 2016, issued by the Superintendent of Police, Katihar. He took up the case for investigation and during investigation, he examined CCTV footage, recorded further statement of the informant on 22^nd November 2016, examined the friends of Saurabh, recovered CDR by mobile phones used by the informant and his family members bearing SIM Card Nos. 9431291236, 8406072339 and 7870956928. On 24^th November, 2016, he received an information from the informant that the red colored T-shirt worn by Saurabh before he had gone missing was recovered from the drain outside his house. He seized the said T-shirt under seizure list (Exhibit-19). On examination of the spot, it was understood that no outsider could throw away the said T-shirt in the drain adjacent to the house of the informant. On 29^th November, 2016, he seized one old partly destroyed letter being produced by the informant and came to know that Saurabh was apprehended for ransom. The said seizure list was marked as Exhibit-20. During investigation, he arrested Kundan Kumar Verma, an employee of the informant as the informant suspected him to be the perpetrator of the offence. On 10^th December 2016, the informant stated to the I.O. that some miscreants called him, demanding a ransom of Rs. 50,000,00/- (Fifty Lakhs) for releasing Saurabh alive. The said miscreants also told the informant that they had kept a jeans pant in a packet under the seat of a small platform before Manihari Railway Station as an evidence to show that Saurabh was alive. The informant, his brother and other family members went to the said Railway Station and found the jeans pant of Saurabh being produced by the informant before the police who seized the said jeans pant and marked it as Exhibit-21. On 21^st December 2016, as per the direction of the Superintendent of Police, the I.O. obtained phone numbers of the informant and his family members and collected CDR from the District Intelligence Unit (DIU), Police Department. On examination of the CDR, it was ascertained that phone calls of accused Ritesh were increased abnormally after disappearance of Saurabh. The CDR was marked as material Exhibit-D and the certificate issued under Section 65 B of the Evidence Act by the Officer-in-charge, DIU, was marked as Exhibit-22. During investigation, the I.O. came to know that the miscreants were directing/threatening the informant and his family members to bring ransom at different places like, Kantakosh, Tejnarayanpur station or its surrounding area near Manihari. Therefore, the I.O. suspected that the kidnapper(s) were operating around the area within jurisdiction of Manihari P.S. On 10^th January 2017, police came to know during further investigation of CCTV footage that Saurabh went towards Manihari from Saheed Chowk at Katihar by a tempo. The I.O. identified the tempo bearing Registration No. BR-11T-7945 and interrogated the driver Arvind Kumar. When Arvind Kumar was shown the CCTV footage, he admitted that the said passenger, namely, Saurabh traveled towards Manihari by his tempo and he got down either at Nawabganj or Manihari. PW-20 has deposed that on 15.11.2016 he was posted as Station House Officer, Katihar Town Police Station. On the written application of informant Jai Kumar Choudhary, FIR No. 741/2016 under Section 363 IPC was registered against unknown persons. He has proved the formal FIR (Exhibit-5 and 5/1) and the endorsement on the written application (Exhibit-6). Section 304 A IPC was added on 12.12.2016 and Sections 302, 201 and 120B IPC were added on 01.03.2017 after obtaining necessary orders.

Investigation was initially entrusted to SI Dinesh Kumar. On 20.11.2016, as per the orders of the Superintendent of Police, he took over the investigation himself. He reviewed the earlier investigation, collected and examined CCTV footage, re-recorded the statement of the informant, and recorded statements of friends of the deceased and other witnesses. CDRs of various mobile numbers provided by the informant were obtained and analyzed.

On 24.11.2016, the informant produced the red-colored T-shirt of the deceased recovered from the drain; a production-cum-seizure list was prepared (Exhibit-19). Inspection of the place showed that only a person who had entered the house could have placed the article there. On 29.11.2016 a torn ransom letter was produced and seized (Exhibit- 20). On 10.12.2016 the jeans of the deceased were produced and seized (Exhibit- 21).

Detailed analysis of CDRs (Exhibit D, accompanied by certificate Exhibit-22) of the family members and of Ritesh Chaudhary’s mobile numbers revealed a sharp increase in calls after 14.11.2016 and tower locations around Manihari, matching the locations of the ransom calls. CCTV footage showed the deceased wearing a handkerchief over his face and travelling in a tempo towards Manihari. The tempo (BR-11T-7945) and its driver Arvind Kumar Mandal were traced; the driver identified the deceased and submitted a written application (Exhibit-23). His statement under Section 161 CrPC was also recorded.

Suspicion having crystallized against Ritesh Choudhary, a raid was conducted at his house on 28.02.2017. Ritesh confessed to having abducted Saurabh along with Deepak Jha, Sanjay Sharma, Kunal Paswan, Kishan Chaudhary and Amar Chaurasia, administered an intoxicant mixed in a cold drink, stripped him and buried him alive in Deepak Jha’s field at Baghmara. His confessional statement was recorded (Exhibit 24). From his house several mobile phones, SIM cards used for ransom calls, a purse containing cash, two handwritten threat/ransom notes, a restaurant bill dated 13.11.2016 and other articles were recovered and seized (Exhibit 25). The recovered mobiles, SIMs, purse, notes and related articles have been marked as material exhibits.

On the disclosure of Ritesh, the other five accused were arrested one after another. Mobile phones and SIMs were recovered from each of them and seized under separate seizure lists (Exhibit 26 to 30). All six accused admitted that they had buried Saurabh alive in Deepak Jha’s field.

Pursuant to their identification of the place, the Circle Officer, Manihari (appointed as Magistrate by the District Magistrate, Katihar – Exhibit 34) supervised the exhumation with the help of a JCB machine. Digging commenced on 28.02.2017 but was stopped due to nightfall; it resumed on 01.03.2017 and the body of Saurabh (wearing only underpants) was recovered. The entire process was videographed; the CDs and the videographer’s certificate have been proved (Exhibits E, E/1 and 31). The inquest report was prepared (Exhibit 32). Because of the highly decomposed condition of the body it was sent to Jawaharlal Nehru Medical College and Hospital, Bhagalpur for post-mortem after a Medical Board report (Exhibit 33). Blood samples of the parents and a bone sample of the deceased were collected and sent to the Forensic Science Laboratory, Patna for DNA examination.

Arrest memos of all six accused were prepared (Exhibits 35 to 35/5). The T-shirt, jeans and ransom letter produced by the informant were identified in Court. Finding the case true, charge-sheet No. 110/2017 dated 28.05.2017 was submitted against all six accused under Sections 363, 365, 364A, 302, 201 and 120B/34 IPC.

PW-20 has identified the four accused present in Court (Ritesh Kumar Choudhary, Kunal Kumar, Amar Kumar Chaurasia and Deepak Kumar Jha) and has stated that he can identify the two absconding accused Sanjay Kumar Sharma and Kishan Kumar Choudhary.

Dr. Rajiv Ranjan (PW-21) is the Medical Officer attached to the Department of Forensic Medicine & Toxicology (FMT) at Jawahar Lal Nehru Medical College and Hospital (J.L.N.M.C.H) at Bhagalpur. On 03^rd March 2017, he received a box from the police in connection with Katihar Town P.S. Case No. 741/2016. On opening the said box, he found one highly decomposed remains of a dead body. After preliminary examination, the dead body was subjected to repeated processing and drying for final examination. On examination of Skull, Mandible and Saccrum, the autopsy surgeon found that the metropic suture had fused and this fusion occur at the age of two to four years. The basi-sphenoide and basi-occiput was not fused. This fusion occurred at the age of eighteen to twenty one years. On examination of mandible, he found that third molar was not erupted properly and according to the Medical Officer, the third molar erupted at the age of 18 to 25 years. He also found that saccrum vertibra was not fused properly and the fusion occurs at the age of nineteen to twenty five years. He did not find any injury on the dead body of the person. The body was sent to medical legal expert and it was opined by the medical legal expert that the age of the victim/deceased was between 12 to 18 years. Examining the condition of ligaments and tissues attached with the bone, the deceased might have died between 10 to 15 days prior to the date of examination. The Medical officer put his signature on post-mortem report of deceased and the same was marked as Exhibit-36.

Deepak Kumar Gupta (PW-22) is a videographer who videographed the entire process of exhumation of the dead body of the victim and submitted a pen drive containing the videography for two days with a certificate. The pen drive was marked as Material Exhibit-P. The certificate containing the recording of the videography in the pen drive by the videographer (PW-22) was marked as Exhibit-37. The bone materials of the deceased and Blood Samples of parents of the deceased were sent to the Forensic Science Laboratory at Patna for DNA test and the following observations were made on conclusion of the DNA by the Assistant Director, Forensic Science Laboratory, Govt. of Bihar, Patna:-

This is all about the evidence on behalf of the prosecution. After examination of the accused persons under Section 313 of the CrPC, when the defence was called for to adduce evidence, the principal accused, namely, Ritesh Kumar Chaudhary deposed as DW-1. He claimed his evidence that the incident of kidnapping took place on 14^th November 2016 and on that date he closed his shop and went to his home. Only then, he got the information from his aunt (Badi Maa) who was the grandmother of Saurabh that Saurabh was missing. Ritesh admitted that he met Saurabh during Chatth Puja when he came to Manihari. When the family members of Saurabh informed him about his disappearance, he used to visit now and then to the house of the informant situated at Amla Tola. Even the family members of Ritesh used to visit Amla Tola. He also admitted that when Saurabh was missing, he had his mobile number 9525791000 and except the said mobile number, he did not have any other sim card/mobile number. It is also stated by him during examination-in -chief that Saurabh used to visit him and informed him about his girlfriends. Police arrested Ritesh on 28^th February 2017. He did not make any confessional statement to the police. Police obtained his signature on some plain papers using 3^rd Degree method. Police did not seize any article from his room after his arrest except his identity card and a sum of Rs. 230/-. Police obtained his signature on the seizure list which was blank at the relevant point of time. Police never took him to the place from where the body of Saurabh was exhumed. He denied the fact that his presence was proved from the videography. He also stated that the informant and his full brother are the sons of his own uncle and the daughter of the informant is his niece. Thus, he denied entire allegation levelled against him. In his cross-examination, he claimed that the informant had dispute with his father over ancestral landed property and he would be able to produce the papers relating to Court Cases over the said dispute. Over the said dispute, the father of the informant wrote a letter to the Circle Officer about ten years before the incident. It is also admitted by him that he used to work in a mobile repairing shop. He also denied the prosecution case that after kidnapping and committing murder of Saurabh, he and the co-accused persons demanded ransom, almost regularly from the family members of Saurabh using different Sim cards. Thus, defence case as disclosed from the trend of cross-examination and examination of the accused person under Section 313 of the CrPC as well as the evidence of the accused Ritesh Choudhary is that Ritesh and his friends were falsely implicated in this case due to property dispute between the informant and his father.

The argument advanced by the learned Senior Counsel in Criminal Appeal (DB) No. 677 of 2019 and the learned counsels for other appellants. We proposed to record the argument adduced by the learned counsels on behalf of the appellants taking their submissions together. First and foremost argument advanced by the learned counsels for the appellants is that the prosecution's case is entirely based on circumstantial evidence. Nobody saw the deceased in association with any of the accused persons before he was allegedly buried alive. The learned trial court relied on the prosecution's story on the basis of the statement recorded by the I.O. after his arrest. It is needless to say that the statement of an accused recorded by the I.O. is not admissible in evidence. Section 25 of the Indian Evidence Act clearly lays down "no confession made to a police officer shall be proved as against a person accused of any offence. "Section 26 of the said Act states that no confession made by any person whilst he is in custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Surprisingly enough, the alleged statement made by Ritesh Kumar Choudhary to the police was marked as Exhibit-24 during the trial of the case. It is contended by the learned counsels for the appellants that when a statement of an accused is not admissible under the law, how could such statement be made an exhibit and relied upon by the trial court. It is submitted by all the learned Advocates on behalf of the appellants that the Court of Trial committed grave error in relying upon an inadmissible evidence of Ritesh and convicted all the accused persons. Ritesh Choudhary and Deepak Jha were convicted under Section 302, 201 and 120 B read with Section 364-A of the IPC and the remaining accused persons namely, Amar Chaurasia and Kunal Kumar under Section 120B, 364-A of the IPC. It is also submitted by the learned Advocates on behalf of defence at a tune that a statement made either by the witnesses or by the accused before the police can be treated as a statement under Section 161 of the CrPC and an accused is not bound to give answer to the questions which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. However, in the instant case, the I.O. recorded the self-incriminating statement of the accused, Ritesh Choudhary, and obtained his signature thereon, which is absolutely against the established principles and statutory dictum under the Code of Criminal Procedure.

The learned Advocates on behalf of the accused persons/appellants further raises a question as to why the statement of Ritesh Choudhary was not recorded under Section 164 of the CrPC. Had it been a spontaneous and voluntary statement of the appellant, Ritesh, there would not have been any reason for his non-production before the learned Judicial Magistrate for the purpose of recording a confessional statement, which could have been exhibited as a corroborative piece of evidence. Failure on the part of the I.O. to take such step shall perish the prosecution's case.

Learned Advocates for the appellants next submits that dead body of Saurabh was exhumed from a trench dug in the land of accused Deepak Jha. The dead body was allegedly identified by the family members of the deceased. The learned counsels for the appellants have raised a question as to whether the trial court was right to accept the identification of the dead body when the autopsy surgeon (PW-21) stated that the body was produced before him in a box and it was highly decomposed. Practically, there was a skeleton of a human body without him wearing apparels except inner garment on the waist (Jhanghiya).

Thirdly, it is submitted by the learned Advocates on behalf of the appellants that the trial court believed the evidence of the I.O. regarding seizure of mobile phones and numbers of Sim cards from the possession of Ritesh and other accused persons and stated that he obtained Call Details Report (CDR) of the mobile phone number of the informant and other family members of the deceased to ascertain the phone calls which they received demanding ransom. The I.O. found 5 or 6 different numbers from where phone calls were coming to the informant and his family members. He obtained CDR and the said Sim cards were found from Ritesh and other accused persons. It is submitted by the learned Advocates for the appellants that unless conversation between the caller and the receipts of the said phone calls was produced, CDR does not prove demand of ransom against the appellants.

Fourthly, it is submitted by the learned counsels for the appellants that the informant stated in course of his evidence that when he started receiving phone calls demanding ransom, he started recording the said phone calls and the said recordings were submitted by him to the I.O. in a pen drive. Thus, when the I.O. received conversation between the informant, his family members and the kidnappers, after arresting the appellants the prosecution could have opted for voice test of the appellant with his recorded statement. This could have been a conclusive proof against the appellants. When the prosecution failed to prove the said fact, this cannot be held that the prosecution was able to prove the case beyond any shadow of doubt. As such, it is submitted by the learned Advocates for the appellants that the appellants ought to have been given benefit of doubt and they were entitled to be acquitted.

The learned Public Prosecutor in charge submits that Mr. Rajendra Narayan, learned Senior Counsel is representing the informant and he shall adopt the submission advanced by Mr. Rajendra Narayan on behalf of the informant. It is submitted by Mr. Rajendra Narayan in support of the prosecution's case that there is no denial of the issue that a statement of an accused recorded by the I.O. cannot be treated as an evidence in view of the specific provision contained in Section 25 and 26 of the Indian Evidence Act. However, Section 27 of the said Act is an exception to Section 25 and Section 26 of the Indian Evidence Act. Section 27 reads as follow:-

In order to substantiate his argument, the learned Senior Counsel submits that the alleged confessional statement (Exhibit-24) of Ritesh contains a statement in the following words: -

Thus, it is urged by Mr. Rajendra Narayan, learned Senior Counsel that the above statement contains recovery statement of Ritesh Chaudhary. Coupled with the aforesaid part of the statement of the deceased, the learned Senior counsel refers to the evidence of PW-1 (Chandra Kumar), the then Circle Officer of Manihari who was deputed by the District Magistrate as the Executive Officer to witness the work of exhumation and recovery of the dead body. It is ascertained from his evidence that as per the identification of place of Ritesh Kumar Chaudhary, the dead body was recovered and Deepak Jha was also present. After the recovery of the dead body, the informant identified it as his son's dead body. Entire process of recovery was videographed and the videography was submitted by the videographer in a pen drive along with a certificate that he, in course of his business as videographer, recorded the entire incident of exhumation of the dead body of the deceased. Thus, it is submitted by the learned Senior Counsel on behalf of the informant that the evidence of PW-1 and the videographer (PW-22) are considered together with the statement recorded by the I.O. The relevant part of the statement made by Ritesh to the I.O. recorded hereinabove along with the direct evidence of PW-1 and PW-22 conclusively established that on the identification of Ritesh and Deepak Jha, the dead body of Saurabh was recovered.

During his cross-examination, it was stated by PW-1 that Deepak Jha and local villagers who assembled there identified the land from where the dead body was exhumed as that of Deepak Jha's agricultural land. It is also found from his cross-examination that Inquest Report of the dead body was prepared in presence of PW-1. On being asked, he stated that he reported the executive authority of the District about the exhumation of dead body.

Learned Senior counsel for the informant next submits that the appellants vehemently urged that the dead body was decomposed. However, PW-1 stated that the dead body was fully decomposed but some portion of skin of the deceased became whitish. Thus, the learned counsels for the appellants tried to prove contradiction between the evidence of PW-1 and the autopsy surgeon. It is submitted by the learned Senior Counsel on behalf of the informant that the learned counsels for the appellants did not consider that before post-mortem, the dead body was subjected to repeated processing and drying for final examination. When there is decomposition of the body of a deceased, it starts with increase of bacterial activity, discoloration of body and formation of gases. The next stage is putrefaction where bacteria break down tissues, producing gases swelling/bloating and characteristic odor. In the fourth stage, active decay starts with soft tissues break down rapidly, fluids are released and insects may contribute substantially. The fifth stage is the advanced decay causing disappearance of decomposed soft tissues and thereafter decomposition slows. The last stage is skeletonization that contains mainly bones with possibly small amount of dried tissues, hair, or cartilage remaining. It is contended by the learned counsel on behalf of the appellant, that as per the prosecution's case, the deceased was buried on 14^th November 2016, the dead body was recovered on 01^st March 2017, therefore, the dead body was recovered after about four months from the date of burying. The question appears what would happen to a dead body four months after death? Medical reply to this question is that there is no single stage fixed because the decomposition depends heavily on temperature, moisture, burial/exposure, insects and other conditions. In forensic terms, around four months body’s post-mortem, a dead body may be in advanced decomposition stage, potentially progressing towards skeletonization. In some condition, substantial soft tissues could still remain. PW-1 might say seeing the dead body and the soft tissue that it was not highly decomposed, on the other hand, as per the forensic expert, the body was highly decomposed, therefore, the difference in the evidence of PW-1 and PW-21 cannot be said to be a material contradiction.

Mr. Rajendra Narayan, learned Senior Counsel next submits on behalf of the de facto complainant duly supported by the learned Advocate for the State Respondent that the evidence of Sachidanand (PW-20) and Arvind Kumar (PW-6), if taking into consideration together, it would be found that on 14^th November 2016, the deceased did not attend his tuition class. On the contrary, he went to Manihari by a tempo and got down from the tempo at a place before Manihari Ghat. Initially his face was wrapped by a handkerchief but at the time of payment of tempo fare, he removed his handkerchief from his face. The tempo driver (PW-6) saw the face of the passenger at that point of time and from the CCTV footage, he identified the picture of Saurabh as the passenger who hired his tempo to go to Manihari. This piece of evidence of PW-2 and PW-6 are direct evidence because PW-2 had the personal knowledge that the deceased did not come to his tuition class on the said date. His absence from tuition class and further going to Manihari was proved by PW-6, who himself stated on oath that he took the deceased to Manihari on 14^th November 2016 by his tempo in the afternoon.

The learned Senior Counsel for the informant submits that Nisha Kumari (PW-3) is the elder sister of the deceased, Ajay Kumar Choudhary (PW-4) is the uncle, Kanchan Jaiswal (PW-10) is the mother of the deceased, Shasi Kumar Jaiswal (PW-12) is the maternal uncle, Jay Kumar Choudhary (PW-15) is the father of the deceased and is also the informant of this case. The learned Senior Counsel for informant refers to their evidence to show that the appellant, namely, Ritesh was the cousin brother of the informant. Deceased Saurabh used to call him uncle. Since, Ritesh was a close relative of the informant, he used to visit his house and talk to family members of the informant over telephone. On 13^th November 2016, Ritesh came to the house of the informant and took Saurabh to a restaurant and gave him treat. He also brought his friends to the house of the informant and identified or made Saurabh familiar with them. From the evidence of PW-3, it is found that during Durga Puja of 2016, Ritesh and his friends came to Katihar and they stayed with them, spend the night in some Durga Puja Pandal. At this PW-3 and her family members made arrangement of their stay at night in the verandah of their house. She identified all the accused persons on dock. Whenever they used to hop Durga Puja Pandals, they took Saurabh with them. After the disappearance of Saurabh, appellant, Ritesh started going almost regularly to the house of the informant. About 7/8 days after the incident, Ritesh came to their house with Amar Chaurasia and Kunal Kumar @Kunal Paswan. They gave an impression that they were helping the informant's family to find out Saurabh. On one of these occasions, Ritesh stayed in the house of the informant at night and on the following morning, he asked PW-3 to give him some water to rinse his face. Then, instead of using the wash basin or the area around the tube well, he went towards the drain adjacent to their house on the pretext of rinsing his mouth and called the family members of the deceased to show them that a red-coloured garment was stuck in the drain. Thereafter, Ritesh took out the said garment from the drain with the help of a stick, and the witnesses identified it as the T-shirt of Saurabh, which he had been wearing on the day of his disappearance. On the same day, after a lapse of one hour or so, he again went to inspect the said drain and brought a wet partly destroyed letter demanding ransom of Rs. 50,000,00/- (Fifty Lakhs). It is contended by the learned Senior Counsel on behalf of the informant that it was Ritesh who, taking advantage of his stay in the house of the informant, had concealed the T-shirt of the deceased and a letter demanding ransom and himself recovered the said articles in order to prove his innocence before the family members of the deceased. According to the learned Senior Counsel, had there not been previous knowledge of keeping the garment of Saurabh and a letter demanding ransom in the particular place of the drain, he could have found out and recovered same with ease on the pretext of proving his innocence.

Learned Senior Counsel appearing on behalf of the informant has placed before the Court other circumstances to establish that Ritesh and his friends were involved in the kidnapping and gruesome murder of Saurabh. It is pointed out by the learned Senior Counsel that the evidence on record suggests that Ritesh made about 65 to 75 calls to the informant and his family members after the disappearance of the deceased. Making phone calls by Ritesh was increased abnormally, if according to the learned Senior Counsel for the informant, the appellant no. 1 made repeated phone calls to the family members of the informant only to be sure that they did not suspect him as the perpetrator of the offence. Not only this, on 13^th November 2016, i.e., a day before the date of occurrence, Ritesh came to the House of the informant and took Saurabh to a restaurant, treated him with sumptuous food and also brought chicken for the other family members of the informant. On 14^th November 2016, he left the house in the morning. On the same day, in the afternoon, Saurabh went to Manihari.

No evidence has been brought on record to suggest that Saurabh knew any persons other than Ritesh and his friends in Manihari or that he had gone there to meet any such persons. Therefore, it is obvious that he had gone there to meet Ritesh and his friends.

Next important circumstance, according to learned Senior Counsel for the informant is that the informant received phone calls from phone numbers 9097261332, 8540022554 and 9097260942, demanding ransom. One of the family members of the informant, namely, Sunny, received phone call from 8540022554 and 8406072339, demanding ransom. The wife of his brother Ajay received phone call demanding ransom from 9097261332, 8294741732, 7549235916, 8678051019, 9097260942 and other phone numbers demanding ransom.

Next, it is pointed out by the learned Senior Counsel on behalf of the informant that police recovered 5 numbers of mobile sets from the possession of Ritesh Choudhary after his arrest. The said mobile sets were marked as Material Exhibit No. 1 series. In one of the mobile phones, Sim Card No. 8294741732, 85406072327 were inserted and connected. From the evidence of the informant, it appears that he received phone call demanding ransom from mobile number 8294741732. Beside the said mobile phone with the above numbered SIM cards, loose SIM cards bearing number 9525791000, 9546839600, 8540879436, 9708072870, 9709564400, 8678051019 and 9006734767 were recovered from the possession of Ritesh, from his bed and room. From accused Sanjay Sharma, one mobile phone bearing number 9006526014 was recovered. From Kunal Kumar, two mobile sets were recovered. The SIM Card No. has not been stated by the I.O. in his evidence or the same was not even recorded in the seizure list (Exhibit 27). From the possession of the appellant Amar Kumar Chourasia, two mobile phone sets were recovered, in which Jio SIM Card No. 7004782442 and Airtel SIM Card No. 980145878 were inserted. Another mobile phone set, having Vodafone No. 8298783608, was also recovered from the possession of the appellant. The SIM Card Nos. inserted in the said mobile phone were Uninor No. 7479777946 and Vodafone No. 9534313941. From the possession of Deepak Jha, one Samsung mobile set with SIM Card No. 7909056589 and 8677872181 were recovered. It is submitted by the learned Senior Counsel on behalf of the informant that the above-mentioned SIM Cards of the appellants were used either for demanding ransom or two maintain track amongst the appellants regarding the development of the case.

He also refers to the evidence of Amit Kumar Patel (PW-16) and Raja Kumar Sah (PW-18) who corroborated the fact of seizure of mobile phone sets SIM Cards from the possession of the appellants and their signature on the seizure list.

The learned Senior Counsel on behalf of the informant further submits that appellant Ritesh Choudhary accepted in his own statement before the I.O. that he used to work in the shop of his father who took entire earning with him. He was not paid any money to spend. On the other hand, he found Saurabh spending money lavishly as his father was a well-to-do businessman. So he made a plan with his friends to kidnap Saurabh and demand ransom from his father. The amount of ransom would be divided equally amongst all the appellants. With the said money, appellant Ritesh would start a new business. This was the motive behind kidnapping of Saurabh. According to the plan of the appellants, Saurabh came to Manihari and meet Ritesh and his friends. When they were talking to each other, one of the appellants purchased a bottle of Sprite cold-drink. Another appellant distributed the cold-drink in plastic disposable glasses to all of them. While distributing the cold-drink, he mixed some intoxicant in Saurabh’s glass. After consuming the cold drink, Saurabh became unconscious. As there was no place to keep Saurabh confined, the appellants decided to commit his murder. Then, they brought Saurabh in unconscious state, making him to sit in the middle of a motorcycle. The pillion rider was holding him. He was taken to the agricultural land of Deepak Jha and was buried there. After digging the trench of about 7ft in depth, Saurabh was made to sit in the said trench, some stones used in railway track were placed over his body and thereafter the said trench was filled by earth. On the next date, accused Deepak Jha sowed Mustard seed on the top of the land where Saurabh was buried.

According to the learned Senior Counsel for the informant this was the motive for causing the death of Saurabh.

Learned Advocate on behalf of the respondent adopted the submission made by the learned Senior Counsel on behalf of the informant.

Indisputably, this is a case of circumstantial evidence, there is no direct evidence of kidnapping or committing murder of the deceased Saurabh Choudhary by the appellants. The evidence of the informant is absolutely truthful and there is no reason to raise any doubt in his evidence when in the cross-examination he admitted that he had no knowledge regarding the whereabouts of Saurabh during the period between his disappearance and exhumation of his dead body. Nobody saw Saurabh in association with the appellants on the date of occurrence, i.e., on 14^th November 2016 at Manihari. Therefore, the fate of these batch of appeals squarely depends on circumstantial evidence. In a case based on circumstantial evidence, it is consistently held by the Hon'ble Supreme Court that in cases were the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established, should be consistent only with the hypothesis of the guilt of the accused. Again, circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

In Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116 : AIR 1984 SC 1622, the Hon'ble Supreme Court laid down the following five golden principles, i.e., the (panchsheel) of proof of accused based on circumstantial evidence. They are as follows:-

In Shivaji Kisan Narwane v. State of Maharashtra, the Hon'ble Supreme Court relied on the ratio laid down in Sharad Birdhichand Sarda (supra). In paragraph 18 of the said judgment, the Hon'ble Supreme Court observed as follows:

In paragraph no. 19 of the said judgment, the Hon'ble Supreme Court laid down the ratio in the following words:-

In these batch of appeals, we have already discussed that the statement of an accused, confessional in nature, cannot be treated as evidence in view of Sections 25 and 26 of the Indian Evidence Act as well as Section 161 and 162 of the CrPC. Therefore, we are not relying upon the so-called confessional statement recorded by the I.O. (PW-20). If we discard the said purported confessional statement, we have no other alternative but to hold that the prosecution failed to prove the motive of the appellants in committing the alleged offence. It is needless to say that in a case based on circumstantial evidence, motive is one of the most important links to complete the chain of circumstances. In a recent judgment reported as 2025 INSC 800, Vaibhav v. State of Maharashtra, the Hon’ble Supreme Court observed as follows:- "There is no rule of law that the absence of motive would ipso facto dismember the chain of evidence and would lead to automatic acquittal of the accused. It is so because the weight of other evidence needs to be seen and if the remaining evidence is sufficient to prove guilt, motive may not hold relevance. But a complete absence of motive is certainly a circumstance which may weigh in favour of the accused." (emphasis supplied by us). In this case, the absence of evidence of motive and surrounding circumstances led the Hon'ble Supreme Court to hold that the death of the friend of the accused was purely accidental and no homicide.

Thus, it is clear that, in a case based on circumstantial evidence, motive is an important circumstance; however, the absence of motive, by itself, would not in all cases discredit the chain of circumstances or lead to the acquittal of the accused.

Let us now examine the instant appeals on the basis of the evidence on record and the principles of law laid down by the Hon'ble Supreme Court on this issue. From the evidence of the witnesses who are close relatives of appellant Ritesh Choudhary, it is ascertained that they never raised any doubt against Ritesh before his arrest, recovery of mobile phone and identification of the place where the deceased was buried. However, it is ascertained from the evidence of the parents, uncle and elder sister of the deceased that Ritesh was a frequent visitor in the house of the informant. Secondly, Ritesh established a close relationship with Saurabh. Thirdly, he used to take him along with his friends to different places including restaurants. Fourthly, on 13^th November 2016, he treated Saurabh in a restaurant at Katihar and stayed in their house at night. They slept together in a room in the house of the informant. Fifthly, on 14^th November 2016, Saurabh went to Manihari without disclosing anything to his family members, wrapping a handkerchief around his face so that nobody could identify him, by a tempo. Sixthly, on 14^th November 2016, he did not attend his tuition class. Seventhly, it was Ritesh who recovered a red-coloured T-shirt belonging to Saurabh from a drain adjacent to the house of the informant, in order to lead the informant to believe that Saurabh had been kidnapped by some very close persons from the locality. Eightly, on the same date after about an hour, he recovered a wet and partly destroyed letter demanding a ransom from the same drain outside the house of the informant. The letter disclosed a demand of ransom of Rs. 50,000,00/- by one Qadir Khan. Thereafter, phone calls were coming from different mobile numbers to the informant, informant's brother, brother's wife and maternal nephew Sunny, demanding ransom. Ninthly, one of such SIM Cards were recovered from the possession of Ritesh. The Sim Card bearing no. 8294741732 and 8540879327 were recovered from the possession of the appellant, namely, Ritesh Choudhary. The informant stated in his evidence that he received the phone calls from the above-mentioned phone numbers demanding ransom for the release of Saurabh. Tenthly, accused Ritesh made a statement before the police after his arrest that Saurabh was buried alive in the land of Deepak Jha by him and his associates. He led the police to the said place which was corroborated by the Circle Officer of Manihari (PW-1). This part of statement made by Ritesh is admissible in evidence under Section 27 of the Indian Evidence Act.

On identification of the place by Ritesh and Deepak, it was dug with the help of a JCB machine in presence of the Circle Officer (PW-1), informant and his other family members on 28^th February 2017, the trench was further dug and the body of the deceased was exhumed. PW-1 stated in his evidence that the place was identified by Ritesh and Deepak in his presence, therefore, the fact of identification of the place where Saurabh was buried has been proved by direct evidence in addition to the relevant portion of the statement recorded by the I.O. which is admissible under Section 27 of the Indian Evidence Act. Last but not the least, the entire process of exhumation of the dead body was videographed. The videographer handed over the videograpy in a pen drive with a certificate of videography and copy thereof in pen drive which is admissible under Section 65(B) of the CrPC. The prosecution also proved the CDR between the informant, his family members and especially from the SIM Cards used by Ritesh demanding ransom. The CDR was certified by the Officer-in-charge of the District Intelligence Unit, Police Department. All these circumstances clearly lead this Court to come to a conclusion that appellant Ritesh Choudhary and Deepak Jha were involved in committing Murder of Saurabh by burying him alive.

Charge against all the appellants, namely, Ritesh Choudhary, Amar Chourasia, Deepak Jha and Kunal Paswan under Section 120(B) read with Section 364 A of the IPC, in our considered view, has not been proved because of lack of evidence of criminal conspiracy and demand of ransom by them. There is absolutely no evidence that the above-named appellants conspired to kidnap Saurabh for demand of ransom. The prosecution tried to prove the case only on the basis of inadmissible statement of Ritesh Choudhary recorded by the I.O. It is needless to say that a statement made by an accused implicating another in course of investigation of a criminal case and even in certain cases in course of evidence is not admissible against the co-accused. Nobody saw the appellants in association with Saurabh on 14^th November 2016. Also, nobody saw them consuming cold drink with Saurabh. There is no direct evidence that all the appellants took Saurabh to the agricultural land of Deepak Jha to bury him alive. In this regard, we are compelled to note that the case was monitored by superior officer of the Police Force, i.e., the Superintendent of Police, Katihar. Even he did not advise the I.O. to take step for recording the statement of the appellant Ritesh Choudhary by a learned Judicial Magistrate under Section 164 of the CrPC which could have been admissible in evidence. There are lacunae in the investigation of the case. It is evident from the statement of the informant on oath that he recorded the phone calls demanding a ransom by the miscreants and handed over the said recordings by a pen drive to the I.O. The I.O. did not take any attempt or step for voice test of the appellants with the recordings of the said phone calls.

For the reasons stated above, we have no other alternative but to hold that the learned trial court fell short in appreciating the evidence in light of the statutory guidelines. As a result, charge under Section 120(B) read with Section 364 A of the IPC against the appellants for which they were convicted is found to be incorrect, in violation of legal provisions and is liable to be set aside. At the same time, we confine that the chain of evidence established against Ritesh Choudhary and Deepak Jha in respect of charge under Section 302 of the IPC and Section 201 of the IPC has been sufficiently complete to lead us to affirm and record the order of conviction under Section 302 and 201 of the IPC against the above-named appellants.

It is needless to say that the convict Ritesh is the own uncle’s son of the informant. He is his father’s first cousin-brother. Though, Ritesh deposed as DW-1 and stated that he was falsely implicated by the informant due to landed property dispute between the informant and his family, such claim is proved to have been utterly false. If a property dispute persisted between the two families, is it natural to believe the past conduct of Ritesh with Saurabh, informant and his family members? He was a frequent visitor of the house of the informant. He befriended Saurabh. He gave a treat to Saurabh in a restaurant. The restaurant’s bill was recovered from the purse of the convict and therefore, we are not in a position to accept such submission that there was a landed property dispute between the families for which Ritesh was falsely implicated.

Practically, Ritesh was not at all implicated by the informant till the dead body of Saurabh was exhumed. The informant did not raise any doubt against the convict Ritesh when he recovered a red-colored T-shirt and letter containing demand of ransom from the drain adjacent to the house of the informant. In spite of a very cordial relationship between the convict and the family members of the informant as well as with the deceased, the latter was murdered by burying him alive. The nature of the offence, the manner of perpetration and possessing criminal mind and criminality of principal offender Ritesh, lead us to consider as to whether we shall modify the sentence of life imprisonment to the sentence of death.

We are of the considered view that though the incident of murder caused under the leadership of Ritesh by him and Deepak Jha and the mode and manner of commission of murder is barbaric, deeply touches the conscience of a normal human-being, we are in conformity with the learned trial Judge that this is not the rarest of rare case, therefore, the sentence of imprisonment for life passed against Ritesh Choudhary with fine for the offence punishable under Section 302 of the IPC by the learned trial Judge is maintained.

The order of acquittal passed against Deepak Jha for the offence punishable under Section 302 of the IPC is set aside. Deepak Jha is sentenced to suffer rigorous imprisonment for life with fine of Rs. 10,000/-. In default to suffer rigorous imprisonment for a further period of six months for the offence punishable under Section 302 of the IPC. Order of sentence passed against both the appellants under Section 201 of the IPC is affirmed.

Appeal against Amar Kumar Chaurasia @ Amar Kumar (In Cr. Appeal (DB) No. 688 of 2019) and Kunal Kumar (In Cr. Appeal (DB) 814 of 2019) are allowed. The above-mentioned appellants/accused person are acquitted of the charge under Section 120-B read with 364-A of the IPC. The appellants are set at liberty and are hereby discharged from the obligation of their respective bail bonds. The sureties are also discharged from their liabilities under the said bail bonds. If the appellants are in custody, they shall be released forthwith, unless their custody is required in connection with any other case.

With the above-order, all the appeals are accordingly, disposed of.

I agree.