RANJEET KUMAR RAM@ RANJEET KUMAR DASversusSTATE OF BIHAR

                        [2015] 7 S.C.R. 36


A      RANJEET KUMAR RAM@ RANJEET KUMAR DAS
                                 v.
                         STATE OF BIHAR
                (Criminal Appeal No. 1831 of2011)
B
                           MAY 15, 2015
            [T. 5. THAKUR AND R. BANUMATHI, JJ.]
            Penal Code, 1860: ss.364A, 302134, 1208, 201 -
c   Kidnapping and murder- Prosecution case was that five year
    old son of PW-8 was kidnapped for ransom and later
    murdered - The victim child was playing with his sister PW-
    2 in the street when A-5 and A-3 lured him with chocolates
    and took him away-After 5-6 days, A-1 and A-4 told PW8
D   that his son would come back if he would pay money-After
    3 months, PW8 received phone call demanding a ransom -
    Kidnappers informed PW8 to come with money with his
    neighbours A-1 and A-4 - PW8 wrapped the ransom money
    in plastic bag and kept it in gunny bag under the carrier of
E   his cycle and accompanied A-1, A-4 and A-2- They reached
    the place as instructed by kidnappers and A-3 and A-5 came
    out of a hut and snatched the money from under the caffier
    of the cycle and informed PW8 that his son would be back by
    evening - However the boy did not return - Investigating
F   officer conducted raid and made arrests - Based on
    statement ofA-1, cuffency notes were recovered- Based on
    statements of A-3, A-4 and A-5, 10 went to the place where
    dead body of victim boy was recovered- Trial court convicted
G   A-1, A-3, A-4 & A-5 for kidnapping and murder and A-2 for
    kidnapping - High Court acquitted A-2 however upheld
    conviction of A-1, A-3, A-4, A-5 - On appeals, held: The
    testimony of the PW-2, sole child witness was reliable and
    consistent- Evidence of PW-8 corroborated the evidence of
H   PW-2 - Evidence of PW-8 established that the victim boy
                                36
  RANJEET KUMAR RAM@ RANJEET KUMAR DAS v.                         37
               STATE OF BIHAR

was last seen in the company of A-3 and A-5 - Conduct ofA-        A
3 and A-5 of pulling money kept in gunny bag from PW-B's
cycle showed that they had knowledge about money which
only indicated prior meeting of minds of accused -
Concurrent finding of courts below that A-3 and A-5 were guilty
for kidnapping and murder not interfered with -As regards,        B
A-1, he was brother-in-Jaw ofA-3- His conduct in not showing
any reaction to his brother-in-law's act of kidnapping was not
in consonance with natural human conduct - This conduct
ofA-1 coupled with the evidence that he has been persuading
PWB to pay the money to kidnappers to get back his son Jed        C
to the irresistible inference that A-1 shared the common
intention with A-3 and A-5 in kidnapping the child and
committing murder - Recovery of currency note from the
house ofA-1 was yet another link strengthening his complicity
                                                                  0
in the commission of offence -As regards A-4, neither any
recovery was made from him nor any incriminating evidence
was available against him - Case against A-4 not proved
beyond reasonable doubt and his conviction set aside.

       Dismissing the appeals filed by A-1, A-3 and A-5 E
and allowing the appeal filed by A-4, the Court

       HELD: 1. Key witness PW2 aged seven years and
sister of the deceased boy identified A-3 during the test
identification parade and in the court she identified A-5 F
as the person who offered chocolate to her and to her
brother and took him away. lnspite of searching cross-
examination, PW2 remained consistent throughout.
Before she was examined as a witness in the court during
trial, her statement under Section 164 Cr.P.C. was G
recorded by the Judicial Magistrate (PW13). In his
evidence, PW13 has stated that he tested the
understanding of witness PW2 and after being satisfied
about her understanding, recorded her statement under H
38         SUPREME COURT REPORTS                 [2015] 7 S.C.R.


A Section 164 Cr.P.C. When PW2 was examined as a
  witness in the court during trial, the trial judge had also
  put preliminary questions to the child witness PW2 and
  satisfied that she was capable of understanding the
  questions put to her. PW2 though sole witness, by
B concurrent findings courts below found her evidence
  unassailable. [Paras 12 and 14] [46-H; 47-A-C; 48-A-D]

             2. In the test identification parade, PW8 identified
     A-5 and A-3 as the persons who took away ransom
C    money from the carrier of his cycle. The evidence of PW8
     amply corroborated the evidence of PW2 as to the
     complicity of A-5 and A-3 in the offence. Evidence of
     PW2 coupled with the evidence of PW8 clearly
     established that the accused A-5 and A-3 kidnapped
D    PW8's son and PW8 informant paid Rs. 1,05,000/- to them
     as ransom amount. On the evidence of PW2, courts
     below rightly recorded concurrent findings that the
     prosecution has established that deceased boy was last
     seen alive in the company of accused A-5 and A-3. There
E    is no explanation forthcoming from the accused which
     is a strong militating circumstance against the accused
     A-5 and A-3 which indicates that they are responsible
     for the crime. This is further fortified by the evidence of
     PW8 who stated that the accused Nos.3 and 5 had
F
     snatched the money kept in the carrier of his cycle, when
     he was near the hut of A-3. [para 15, 16] [48-G-H; 49-A-D]

          3. Based on the statement of A-5 and A-3,
  investigating officer- PW12 went to a place where the
G body of a deceased boy was recovered. Identification
  of clothes recovered from the body of deceased boy
  beneath the pulia and identification of the photographs
  and knowledge of A-3 and as to the place of dead body
H is a strong militating circumstance against A-5 and A-3.
  RANJEET KUMAR RAM@ RANJEET KUMAR DAS v.                       39
               STATE OF BIHAR

Though the statement recorded from A-5 and A-3 did A
not lead to any recovery as admissible under Section 27
of the Evidence Act, their statement led to the disclosure
of the details of the dead body and registration of F.l.R.
If no statement was recorded from the accused, place of
the dead body of deceased boy would have remained B
unknown. [Paras 17 and 19] [49-E, G; 50-E-F]

        4. Ideally based on the statement recorded from
the accused, the investigating officer should have taken
the accused to the alleged place of occurrence which            C
would have led to the disclosure of place of occurrence
and omission to do so, is only a lapse in the investigation.
In criminal trials even ifthe investigation is defective, the
rest of the evidence must be scrutinized independently
of the impact of the defects in the investigation otherwise     D
the criminal trial will plummet to the level of the
investigation. Corpus delecti in some cases may not
be possible to be traced or recovered. If the recovery of
a dead body is an absolute- necessity to convict an
accused, in many cases the culprits would go                    E
unpunished as the accused would manage to see that
the dead body is destroyed or not recovered. Any lapse
in recovery of the dead body or missing link qua the dead
body will not enure to the benefit of the accused. The          F
courts below recorded cogent and concurrent reasoning
thatA-5 and A-3, for kidnapping the boy for ransom and
committed murder and the conviction of A-5 and A-3
under Sections 364A, 302 and 201 IPC and the sentence
of imprisonment imposed on them cannot be interfered            G
with. [Paras 20-23] [50-H; 51-A, C, E-H; 52-A]

       5. Conviction qua A-1 and A-4: A·3 is the brother-
in-law of A-1. Had there been no complicity of A-1 in the
commission of the offence, on knowing for the first time H
40       SUPREME COURT REPORTS               [2015] 7 S.C.R.


A that his brother- in-law A-3 was involved in the
  kidnapping, A-1 must have been greatly shocked and
  he must have questioned his brother-in-law A-3 as to
  why he had committed such gruesome act of kidnapping
  his neighbour's son? But A-1 had not reacted to the
B situation and he remained quiet. His conduct in not
  showing any reaction is not in consonance with natural
  human conduct. -This conduct of A-1 coupled with the
  evidence that he has been persuading PWB to pay the
  money to kidnappers to get back his son leads to the
C irresistible inference that A-1 shared the common
  intention with A-3 and A-5 in kidnapping the child 'and
  committing murder. Recovery of currency note from the
  house of A-1 is yet another link strengthening his
  complicity in the commission of offence. Considering the
0
  act of A-1 and the proved circumstances, courts below
  rightly held that A-1 had the common intention of
  kidnapping and committing murder of the boy. [Paras
  25, 26 and 28] [53-8-G; 54-F]
E        6. As far as A4 is concerned, he is also a vegetable
  vendor in the same market. Though the circumstances
  that he has also persuaded PWB to pay the ransom
  amount to kidnappers and also accompanied PWB to pay
F the ransom amount to the kidnappers, A-4 might have
  accompanied PWB as a bonafide helper. Neither any
  recovery was made from A-4 nor anyincriminating
  evidence is available against him. Though there may be
  strong suspicion about his involvement in the
G commission of the offence, suspicion however strong it
  may be, cannot take the place of proof. The case against
  A-4 is not proved beyond reasonable doubt and his
  conviction is liable to be set aside. [Para 29] [54-G-H;
  55-A-B]
H
     State of M.P vs. Mansingh & Ors. (2003) 10 SCC 414:
                                               ·-
  RANJEET KUMAR RAM @ RANJEET KUMAR DAS v.                    41
               STATE OF BIHAR

  2003 (2) Suppl. SCR 460 ; Sheo Shankar Singh vs.            A
  State of Jharkhand and Anr. (2011) 3 SCC 654: 2011
  (4) SCR 312; Munuiappan & Ors. vs. State of Tamil
  Nadu (2010) 9 SCC 567: 2010 (10) SCR 262 - relied
  on.
                                                               B
                  Case Law Reference

       2003 (2) Suppl. SCR 460 relied on.           Para 21
       2011 (4) SCR 312           relied on.        Para 21
       2010 (10) SCR 262          relied on.        Para 21   c
    CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 1831 of2011.

      From the Judgment and Order dated 11.10.2010 of the D
Division Bench of the High Court at Patna in CR.APP (DB)
No. 268 of 2008.

                           WITH

     CrlA. Nos. 1820-1821and1817 of2013                        E

    Anupam Lal Das, Anirudh Singh, Shankar Divate,
Sushma Manchanda for the Appellant.

     Anuj, Shubhra Rai, Gopal Singh, Abhinav Mukerji,          F
Purnima Krishna for the Respondent.

     The Judgment of the Court was delivered by

      R. BANUMATHI, J. 1. These appeals are directed
against the judgment dated 11.10.2010 passed by the Patna G
High Court in Criminal Appeals (DB) No.268/2008, 357/2008,
451/2008, No.156/2008 and Death Reference No.6/2008, in
and by which, the High Court dismissed the appeals filed by
the accused persons confirming the verdict of conviction on
the charge of murder of five years oJd boy Vicky and dismissed H
42          SUPREME COURT REPORTS                    [2015) 7 S.C.R.


A the death reference by converting the death sentence of
  Chintoo Singh (A-5) into life imprisonment.

              2. On 27.02.2006, Sunil Kumar Singh-PW8, a
      vegetable vendor in Paswan Chowk, lodged a complaint
B     stating that his son Vicky aged five years was playing near
      PW8's vegetable shop and Rubi Kumari aged seven years
      sister of the victim boy Vicky was also playing with him. At that
      time two unknown persons [later identified as Chintoo Singh
      (A-5) and Birendra Bhagat (A-3)] offered chocolates to Vicky
C     and other children and took away Vicky saying that they would
     come back and drop the boy; but the boy Vicky did not come
      back. On the above complaint on 28.02.2006, a case was
      registered as P.S. Case No.105/2006 at Hazipur Town
     (Industrial Area), Police Station, Vaishali. lnspite of search,
D    the missing boy could not be traced. After 5-6 days passed,
     Ranjeet Kumar Ram (A-1) and Sanjay (A-4), who were also
     vegetable vendors in the same market i.e. at Paswan Chowk,
     told PW8 that his son would come back if he would pay money.
     Nearly after three months of the incident, on 23.06.2006, PW8
E    received a phone call and the kidnappers demanded a ransom
     of four lakh rupees for return of his son; but PW8 expressed
     his helplessness to meet the demand, and the demand was
     reduced to two lakh rupees. Another telephone call was
F    received by PW8 on 1.07 .2006 and the final amount of ransom
     was fixed for Rs.1,05,000/-. On 3.07.2006, PW8 received
     another call from the kidnappers and PW8 informed them that
     he has arranged the ransom money and PW8 was asked to
     bring the money at New Gandak Bridge ahead of Line Hotel
G    of Bachcha Babu at Sonepur. When PW8 expressed fear in
     coming alone with money, he was instructed by the kidnappers
     to come with his neighbours Ranjeet Kumar Ram (A-1) and
     Sanjay (A-4).

            3. In order to pay the ransom money, PW8 had
H
  RANJEET KUMAR RAM@ RANJEET KUMAR DAS v.                          43
       STATE OF BIHAR [R. BANUMATHI, J.]

withdrawn Rs.80,000/- from his Savings Bank account with           A
Bank of India at Rajendra Chowk, Hazipur and PW-8 arranged
balance money from his own savings and borrowings from his
father-in-law. On 4.07.2006, PW8 wrapped the ransom amount
in a plastic bag and kept it in a gunny bag under the carrier of
his cycle and PW8 accompanied by Ranjeet Kumar Ram (A-             B
1) and Sanjay (A-4) and Sanjeet (A-2) proceeded to the place
as instructed by the kidnappers. When they reached the New
Gandak Bridge, Sanjeet (A-2) got down from PW8's cycle and
went inside a hut on the left side of the road and PW8 followed
him. At that time two persons came out and pulled away the         C
money from the carrier of PW8's cycle. Sanjeet (A-2) informed
PW8 that his brother-in-law-Birendra Bhagat (A-3) lives in that
hut and PW8 was informed that his son would be returned by
evening. Even after payment of the money, the boy was not
                                                                   0
returned. To inquire about the boy, PW8 went to the hut and
learnt from the local people that Birendra Bhagat (A-3) is a
criminal and the other person was identified as Chintoo Singh
(A-5). On 16.08.2006, PW8 informed the investigating officer-
Reeta Kumari (PW12), the names of the accused persons and          E
also about the demand and payment of money to the
kidnappers.

      4. Investigating Officer (PW-12) conducted a raid at
Sonepur and arrested Ranjeet Kumar Ram (A-1) and Sanjeet F
(A-2) and recorded their statement. Based on the statement
of Ranjeet Kumar Ram (A-1 ), investigating officer recovered
a currency note of five hundred rupee containing the name of
Sunil Kumar Singh-PW8, written in green ink in the handwriting
of PW8, from the house of Ranjeet Kumar Ram(A-1 ), which G
is recorded in the seizure list (Ex.18). Thereafter, the accused
persons Sanjay (A-4), Birendra Bhagat (A-3) and Chintoo
Singh (A-5) were also arrested and their statements were
recorded. Investigating Officer-PW12, on the basis of
statements went to Fakuli Out-Post and learnt about recovery H
44          SUPREME COURT REPORTS                    [2015] 7 S.C.R.


A of dead body of a boy aged 4-5 years near the culvert of
  Bhagwanpur village wherein (Fakuli OP) P.S. Case No.128/
  06 dated 22.04.2006 under Sections 302, 201 and 34 IPC
  was registered. PW12 obtained from Fakuli police the seizure
  list relating to recovery of vest and half pant of deceased boy
B and his photograph. From the photograph shown to PW8, he
  identified the dead body of child as well as clothes, as that of
  Vicky. After the completion of the investigation, PW-12 filed
  the chargesheet against five accused under Sections 364A,
  302/34, 1208 and 201 IPC.
c
        5. To bring home the guilt of the accused, prosecution
  has examined fourteen witnesses and exhibited documents
  and material objects. When questioned under Section 313
  Cr.P.C., the accused denied incriminating evidence and
D circumstances put against them. Defence has examined seven
  defence witnesses.

           6. Vide judgment dated 24/28.01.2008, the First
     Additional Sessions Judge, Vaishali at Hazipur convicted the
E    accused Chintoo Singh (A-5) and Birendra Bhagat (A-3) under
     Section 364A IPC and sentenced them to undergo rigorous
     imprisonment for life with fine of Rs.10,000/-. For his conviction
     under Sections 302/34 IPC, Chintoo Singh (A-5) was awarded
     death sentence. Sanjeet (A-2), Ranjeet Kumar Ram (A-1) and
F    Sanjay (A-4) were convicted under Section 364A/120B IPC
     and were sentenced to undergo rigorous imprisonment for life
     and were imposed a fine of rupees Rs.10,000/- each with
     default clause. Further, Ranjeet Kumar Ram (A-1 ), Sanjay (A-
     4) and Birendra Bhagat (A-3) V>fere convicted under Section
G    302/34 IPC and were sentenced to undergo rigorous
     imprisonment for life with a fine of Rs.10,000/- each with default
     clause. The sentences imposed on Birendra Bhagat (A-3),
     Ranjeet Kumar Ram (A-1) and Sanjay (A-4) were ordered to
H    run concurrently.
  RANJEET KUMAR RAM@ RANJEET KUMAR DAS v.                         45
       STATE OF BIHAR [R. BANUMATHI, J.]

       7. Being aggrieved by the verdict of conviction, accused A
filed Criminal Appeals No. 268/2008, 357/2008, 451 /2008 and
156/2008 in the High Court of Patna. For confirmation of death
sentence awarded to Chintoo Singh(A-5), State filed Death
Reference Case No.6/2008. The High Court vide common
impugned judgment dated 11.10.2010, dismissed the appeals B
filed by the accused persons and thereby confirmed the
conviction and sentence imposed on accused A-1, A-3 to A-5.
The High Court converted the death sentence awarded to
Chintoo Singh (A-5) as life imprisonment. Accepting the
defence plea of alibi, the High Court acquitted 2nd accused- C
Sanjeet in Criminal Appeal (DB) No.249/2008. In these
appeals, appellants assail the correctness of the verdict of the
conviction and sentence imposed on them.

      8. Learned counsel for the appellants contended that D
Rubi Kumari (PW2) aged seven years, daughter of PW8, the.
key witness has not implicated Ranjeet Kumar Ram (A-1) and
in her statement she has identified only Birendra Bhagat (A-3)
and PW2 being a child witness her sole testimony cannot form
the basis for conviction. It was submitted that Sunil Kumar E
Singh (PW8) on his own has requested Ranjeet Kumar
Ram(A-1) and Sanjay (A-4) to accompany him to pay the
alleged ransom and merely because A-1, A-2 and A-4
accompanied PW8, they are being falsely implicated. Learned F
counsel for Chintoo Singh (A-5) submitted that in the test
identification parade, PW2 has not identified Chintoo Singh
(A-5) and her identification of A-5 in the open court is unreliable
and without proper appreciation of the flaws in the prosecution
case, courts below erred in convicting the accused.                 G

     9. Per contra, learned counsel appearing for the
respondent-State contended that the sole eye-witness-Rubi
Kumari (PW2) has satisfactorily identified accused-Birendra
Bhagat (A-3) in the test identification parade and while she       H
46        SUPREME COURT REPORTS                 (2015] 7 S.C.R.


A was examined in the court she has identified Chintoo Singh
  (A-5). It was submitted that PW8 has clearly deposed that
  Ranjeet Kumar Ram (A-1), Sanjay (A-4) in conspiracy with
  Birendra Bhagat (A-3), Chintoo Singh (A-5), induced him to
  pay ransom money, even when no such demand was made,
B which clearly shows their involvement in the commission of
  the offence. It was submitted that the kidnappers asked PW8
  to bring Ranjeet Kumar Ram (A-1 ), Sanjay (A-4) and that they
  accompanied PW8 to pay the money which proves the
  complicity of accused Ranjeet Kumar Ram (A-1) and Sanjay
C (A-4) in the commission of the offence and upon proper
  appreciation of evidence, courts below rightly convicted the
  appellants for the offence under Sections 302/34, 364A, 120B
  and 201 IPC and the concurrent findings recorded by the courts
  below warrant no interference.
0
         10. We have considered the rival contentions and
  perused the impugned judgment, evidence and material on
  record.

E       11. Sunil Kumar Singh (PW8) and his wife Nilam Devi
  (PW6) are vegetable vendors in Paswan Chowk Market,
  Hazipur. Ranjeet Kumar Ram (A-1) and Sanjeet (A-2) [since
  acquitted] are brothers who are also vegetable vendors in the
  same market having shop situated nearby the shop of PW8
F and Birendra Bhagat (A-3) is their brother-in-law. In her
  evidence, PW6 stated that first accused and his brother Sanjeet
  were jealo1,1_s of them as PW8 had good business. Though
  jealousy is suggested as a motive, but it appears that the
  commission of murder of victim boy Vicky is mainly due to
G kidnapping for ransom.

        12. Key witness PW2-Rubi Kumari is aged seven years
  and is the sister of the deceased boy Vicky. PW2 deposed
  that on the date of incident i.e. 27.02.2006, PW2 was playing
H around the place where PW8 was selling the vegetables. PW2
   RANJEET KUMAR RAM@ RANJEET KUMAR DAS v.                               47
        STATE OF BIHAR [R. BANUMATHI, J.]

stated that two persons came 011 a motor cycle ann gave A
chocolate to the children including PW8's son Vicky anu .nade
Vicky to sit on the tank of the motor cycle and took him away.
PW2 stated that the man who took her brother-Vicky told that
he would come back and drop her brother. Rubi Kumari (PW2)
identified Birendra Bhagat (A-3) during the test identification B
parade and in the court she identifi~d Chintoo Singh (A-5) as
the person who offered chocolate to her and to her brother
and took him away. lnspite of searching cross-examin~on,
PW2 remained consistent throughout her cross-examination.
                                                                         c
       13. On behalf of Chintoo Singh (A-5), it was contended
that PW2's testimony is not reliable as she has not identified
Chintoo Singh during the test identification parade and that
PW2's identification of Chintoo Singh (A-5) in the court was
not reliable. Identification of the accused by the witness soon          D
after the/armer's arrest is of course important because it lends
assurance to the prosecution, in addition to corroboration of
the evidence of the witnesses. As noticed earlier, in the open
court during the trial, Rubi Kumari (PW2) identified Chintoo
Singh (A-5) and she has not id"entified him in the test                  E
identification parade conducted in the prison. Ordinarily, courts
do not give much credence to the identification made in the
court for the first time; but the identification of the accused for
the first time in court is permissible in law. But the said princif)le   F
has to be applied in the facts and circumstances of each case.
While PW2 was examined in the court, trial court which had
the opportunity of seeing and observing demeanour of PW2
found her version identifying Chintoo Singh (A-5) trustworthy
and we see no reason to take a different view.                           G

      14. At the time of occurrence, as well, while deposing in
Court, Rubi Kumari (PW2) was aged only seven years.
Evidence of the child witness and·it& credibility would depend
upon the circumstances of each case. Only precaution which H
th~ court has to bear in mind while assessing the evidence of
48        SUPREME COURT REPORTS                   [2015] 7 S.C.R.


A a child witness is that the witness must be a reliable one.
  Before PW2 was examined as a witness in the court during
  trial, her statement under Section 164 Cr.P.C. was recorded
  by the Judicial Magistrate (PW13). In his evidence PW13 has
  stated that he tested the understanding of witness Rubi Kumari
B (PW2) and after being satisfied about her understanding,
  recorded her statement under Section 164 Cr. P. C. When PW2
  was examined as a witness in the court during trial, the trial
  judge had also put preliminary questions to the child witness
  Rubi Kumari (PW2) and satisfied that she was capable of
C understanding the questions put to her. When the trial court
  has ascertained the discernment of PW2 and has formed an
  opinion that PW2-Rubi Kumari is competent to testify and then
  recorded her evidence, we see no reason to discredit PW2's
  testimony. PW2 though sole witness, by concurrent findings
0
  courts below found her evidence unassailable and we find no
  ground to take a different view.

         15. On 4. 7.2006, PW8 wrapped the ransom amount in a
  plastic bag and kept it in a gunny bag under the carrier of his
E cycle and accompanied by Ranjeet Kumar Ram (A 1), Sanjeet
  (A-2) and Sanjay (A-4), PW8 went to pay the ransom amount
  to the kidnappers. When they reached New Gandak Bridge,
  accused-Sanjeet (A-2) got down from the cycle and went inside
F the hut on the left side of the road and PW8 followed him. At
  that time, two persons came out of the hut and took away the
  money from the carrier of PW8's cycle. In the test identification
  parade, PW8 identified Chintoo Singh (A-5) and Birendra
  Bhagat (A-3) as the persons who took away ransom money
G from the carrier of his cycle. The evidence of PW8 amply
  corroborates the evidence of PW2 as to the complicity of
  Chintoo Singh (A-5) and Birendra Bhagat (A-3) in the offence.

       16. Evidence of Rubi Kumari (PW2) coupled with the
H evidence of Sunil Kumar Singh (PW8) clearly establishes
  RANJEET KUMAR RAM@ RANJEET KUMAR DAS v.                          49
       STATE OF BIHAR [R. BANUMATHI, J.]

that the accused Chintoo Singh (A-5) and Birendra Bhagat           A
(A-3) kidnapped PW8's son Vicky and PW8 informant paid
Rs.1.05,000/- to them as ransom amount. On the evidence of
PW2, courts below rightly recorded concurrent findings that
the prosecution has established that. deceased boy Vicky was
last seen alive in the company of accused Chintoo Singh (A-        B
5) and Birendra Bhagat (A-3). It is for the accused to explain
how and when they parted company of the deceased child
Vicky. Absolutely, there is no explanation forthcoming _from
the accused which is a strong militating circumstance against
the accused Chintoo Singh (A-5) and Birendra Bhagat (A-3)          C
which indicates that they are responsible for the crime. This is
further fortified by the evidence of PW8 who stated that the
accused Nos.3 and 5 had snatched the money kept in the
carrier of his cycle, when he was nearthe hut of Birendra Bhagat
                                                                   0
(A-3).

      17. Based on the statement of Chintoo Singh (A-5) and
Birendra Bhagat (A-3), investigating officer- Reeta Kumari
(PW12) went to Fakuli O.P. and learnt that the body of a
deceased boy was recovered on 22.4.2006 beneath the pulia E
in between Bhagwanpur-Bahadurpurroad for which F.l.R. in
(Fakuli OP) P.S. Case No.128/2006 dated 22.4.2006 under
Sections 302, 201 IPC read with Section 34 IPC was
registered. PW12 received the clothes (material Ext.11 ), F
photographs of the deceased boy and PW8 has identified the
said clothes (material Ext.11) as that of his son and also
photographs (Ext.3 & 3/1) as of deceased boy Vicky.
Identification of clothes recovered from the body of deceased
boy beneath the pulia and identification of the photographs G
and knowledge of accused No.3 and as to the place of dead
body is a strong militating circumstance against the accused
Chintoo Singh (A-5) and Birendra Bhagat (A-3).

     18. Learned counsel for the accused Chintoo Singh(A-          H
50        SUPREME COURT REPORTS                   [2015] 7 S.C.R.


A 5) and Birendra Bhagat (A-3) contended that the alleged
  disclosure statement of the accused is hit by Section 25 of the
  Evidence Act which makes the disclosure statement
  inadmissible and the statement recorded from the accused
  did not lead to disclosure of any fact so as to make it
B admissible under Section 27 of the Evidence Act and there is
  nothing to connect the accused with the dead body of a boy
  recovered from beneath the pu/ia in connection with (Fakuli
  OP) P.S. Case No.128/2006. It was submitted that the link to
  connect the accused with the murder of deceased boy Vicky
C is missing and that the confession statement of accused
  Chintoo Singh (A-5) and Birendra Bhagat (A-3) recorded
  by police is not admissible in evidence which was not kept in
  view by the courts below.

D       19. So far as the recovery of dead body of boy under the
  culvert between Bhagwanpur and Bahadarpur road is
  concerned, as noticed earlier, a F.l.R. was registered in (Fakuli
  OP) P.S. Case No.128/2006 dated 22.4.2006 under Sections
  302, 201 IPC read with Stj!ption 34 IPC. Though the statement
E recorded from the accused Chintoo Singh (A-5) and Birendra
  Bhagat (A-3) did not lead to any recovery as admissible under
  Section 27 of the Evidence Act, their statement led to the
  disclosure of the details of the dead body and registration of
F F.l.R. in (Fakuli OP) P.S. Case No.128/2006. If no statement
  was recorded from the accused, place of the dead body of
  deceased boy would have remained unknown.

        20. So far as the contention regarding the inadmissibility
  of the statement recorded from the accused Chintoo Singh
G (A-5) and Birendra Bhagat (A-3), of course, the statement did
  not lead to the disclosure of any fact as admissible under
  Section 27 of the Evidence Act. Ideally based on the statement
  recorded from the accused,"' the investigating officer should
H have taken the accused to the alleged place of occurrence
  RANJEET KUMAR RAM@ RANJEET KUMAR DAS v.                     51
       STATE OF BIHAR [R. BANUMATHI, J.]

which would have led to the disclosure of place of occurrence A
and omission to do so, is only a lapse in the investigation.
Even if it is accepted that there was deficiency in investigation
that cannot be a ground to doubt the prosecution version which
is otherwise cogent and credible.
                                                               B
      21. It is well settled that in criminal trials even if the
investigation is defective, the rest of the evidence must be
scrutinized independently of the impact of the defects in the
investigation otherwise the criminal trial will plummet' Mthe
level of the investigation. Criminal trials should not be made C
casualties for any lapses committed by the          investigating
officer. In State of M. P vs. Mansingh & Ors., (2003) 10 SCC
414, it was held that even if there was deficiencies in the
investigation that cannot be a ground for discrediting the
prosecution version. The same view was reiterated in Sheo D
Shankar Singh vs. State of Jharkhand And Anr., (2011) 3 SCC
654 and C. Muniappan & Ors. vs. State of Tamil Nadu, (2010)
9 sec 567.

      22. We are not impressed with the arguments advanced E
on behalf of the accused Chintoo Singh (A-5) and Birendra
Bhagat (A-3) that there is nothing to connect the accused with
the body found under the bridge. Corpus de/ecti in some cases
may not be possible to be traced or recovered. If the recovery
of a dead body is an absolute necessity to convict an accused, F
in many cases the culprits would go unpunished as the accused
would manage to see that the dead body is destroyed or not
recovered. Any lapse in recovery of the dead body or missing
link qua the dead body will not enure to the benefit of the
accused.                                                       G

      23. Upon appreciation of evidence of PW2 and PW8,
the courts below recorded cogent and concurrent reasonings
that Chintoo Singh (A-5) and Birendra Bhagat (A-3), for
kidnapping the boy Vicky for ransom and committed murder H
52         SUPREME COURT REPORTS                   [2015] 7 S.C.R.


A and the conviction of Chintoo Singh (A-5) and Birendra Bhagat
  (A-3) under Sections 364A, 302 and 201 IPC and the sentence
  of imprisonment imposed on them cannot be interfered with.

           24. Conviction qua Ranjeet Kumar Ram (A-1) and
B     Sanjay (A-4): PW6-Nilam Devi and PW8-Sunil Kumar Singh,
      mother and father respectively of the deceased boy Vicky are
     the vegetable vendors in the Paswan Chowk Market. Ranjeet
      Kumar Ram (A-1) and San jay (A-4) were also selling
      vegetables in the same market. In her evidence, PW6 stated
C    that Ranjeet Kumar Ram (A-1) and Sanjay (Ac4) were jealous
     of PW6 and PW8 as in their vegetable shops they were having
     good business. PW8 in his evidence stated that he was
     persuaded by Ranjeet Kumar Ram (A-1) and Sanjay (A-4) to
     pay the ransom money and get back his son even when no
D    such demand was made by the kidnappers viz., Chintoo Singh
     (A-5) and Birendra Bhagat (A-3). After number of phone calls,
     demand of ransom was reduced to Rs.1,05,000/- and PW8
     was asked to deliver the amount. PW8 categorically stated
     that when he expressed fear of going alone, kidnappers told
E    him over phone to bring his neighbours Ranjeet Kumar Ram
     (A-1) and Sanjay (A-4). PW8 withdrew Rs.80,000/- from his
     Savings Bank account with Bank of India at Rajendra Chowk
     and Ext.5 is the Savings Bank passbook of PW8. PW8 took
F    loan of Rs.20,000/- from his father-in-law Sakal Mahto and
     PW8 was already having Rs.5,000/-. In his evidence, PW8
     stated that the amount he arranged was of denomination of
     five hundred rupees and in some of the currency notes, he has
     signed. PW8 stated that he wrapped the ransom amount in a
G    plastic bag and kept in a gunny bag in the carrier of his cycle
     and when they reached New Gandak Bridge, Sanjeet (A-2)
     got down from his cycle and went to the hut on the left side of
     the road and when PW8 followed him, Chintoo Singh (A-5)
     and Birendra Bhagat (A-3) pulled away money kept in the gunny
H    bag from PW8's cycle. Only accused Ranjeet Kumar Ram
   RANJEET KUMAR RAM @ RANJEET KUMAR DAS v.                     53
        STATE OF BIHAR [R. BANUMATHI, J.]

(A-1) and Sanjay (A-4) had the knowledge that the money was A
kept in the gunny bag in the carrier of cycle. From the conduct
of A-5 and A-3, it appeared as if they were already having
knowledge about money being kept in the gunny bag in the
carrier of the cycle of PW8 which only indicates prior meeting
of minds of the accused.                                        B

       25. Birendra Bhagat (A-3) is the brother-in-law of Ranjeet
Kumar Ram (A-1 ). Had there been no complicity of Ranjeet
 Kumar Ram (A-1) in the commission of the offence, on knowing
for the first time that his brother-in-law Birendra Bhagat (A-3) C
was involved in the kidnapping, Ranjeet Kumar Ram (A-1) must
 have been greatly shocked and he must have questioned his
brother-in-law Birendra Bhagat (A-3) as to why he had
committed such gruesome act of kidnapping his neighbour's
son? But Ranjeet Kumar Ram (A-1) had not reacted to the D
situation and he remained quiet. His conduct in not showing
any reaction to his brother-in-law's act of kidnapping of PW8's
son, which is not in consonance with natural human conduct.
This conduct of first accused coupled with the evidence that
he has been persuading PW8 to pay the money to kidnappers E
to get back his son leads to the irresistible inference that
accused Ranjeet Kumar Ram (A-1) shared the common
intention with accused Nos.3 and 5 in kidnapping the child
and committing murder.
                                                                  F
      26. Recovery of five hundred rupee currency note (Ex.1)
from the house of Ranjeet Kumar Ram (A-1) is yet another link
strengthening his complicity in the commission of offence.
Pursuant to the statement of accused Ranjeet Kumar Ram (A-
1), currency note of Rs.500/- which contained signature of G
PW8-Sunil Kumar Singh in green ink was seized from the
house of first accused under Ext.1 seizure list (Ext.18). PW4-
Raj Banshi Devi, a neighbour had spoken about the recovery
of Ext.1 currency note of Rs.500/-from the house of accused H
54        SUPREME COURT REPORTS                 [2015] 7 S.C.R.


A No.1 and PW8 had identified his signature on Ext.1 currency
  note. Recovery of a part of ransom amount from the house of
  Ranjeet Kumar Ram (A 1) is a determining link completing the
  chain of ci(cumstantial evidence against Ranjeet Kumar Ram
  (A-1 ), pointing to his guilt.
B
         27. Defence plea of accused Ranjeet Kumar Ram (A-1)
  is that some time prior to the occurrence, there was an
  altercation between him and PW8 and at that time PW8-Sunil
  Kumar Singh stated.that he would falsely implicate Ranjeet in
C a criminal case. To prove the defence plea, defence witnesses
  Baiju Sharma and Budhan Paswan were examined as DWs 4
  and 5. The defence plea that PW8 falsely implicated Ranjeet
  Kumar Ram (A-1) and his family members in the offence of
  kidnapping and murder of his son defies logic and rightly
D rejected by the trial court as well by the High Court.

        28. Direct evidence of common intention is seldom
  available. Such common intention of the accused can only be
  inferred from the evidence and circumstances appearing from
E proved facts of case. In furtherance of common intention,
  Ranjeet Kumar Ram (A-1) had been persuading PW8 to pay
  the ransom amount even before there was no such demand
  from the kidnappers viz., Chintoo Singh (A-5), Birendra Bhagat
  (A-3). Considering the act of Ranjeet Kumar Ram and the
F proved circumstances, courts below rightly held that Ranjeet
  Kumar Ram had the common intention of kidnapping and
  committing murder of the boy Vicky and the courts below rightly
  convicted Ranjeet Kumar Ram (A-1) under Section 364A IPC
  and Sections 302/34 IPC.
G
        29. As far as Sanjay Mahto (A4) is concerned, he is also
  a vegetable vendor in Paswan Chowk Market. Though the
  circumstances that he has also persuaded PW8 to pay the
  ransom amount to kidnappers and also accompanied PW8
H to Sonepur to pay the ransom amount to the kidnappers, Sanjay
   RANJEET KUMAR RAM @ RANJEET KUMAR:OAS v.                      55
        STATE OF BIHAR [R. BANUMATHI, J.]

might have accompanied PW8 as a bonafide helper. Neither A
any recovery was made from Sanjay nor any incriminating
evidence is available against him. So far as Sanjay Mahto
(A-4) is concerned, though there may be strong suspicion about
his involvement in the commission of the offence, suspicion
however strong it may be, cannot take the place of proof. The B
case against Sanjay (A-4) is not proved beyond reasonable
doubt and his conviction is liable to be set aside.
                                              •( .l ~ ~ ~

     30. Criminal Appeals No.1831/2011, 1817/2013 and
1821/2013: These appeals filed by Ranjeet Kumar Ram (A- C
1), Chintoo Singh (A-5) and Birendra Bhagat (A-3) are
dismissed.

      31. Criminal Appeal No.1820/2013: Conviction of
Sanjay (A-4) is set aside and this appeal is allowed. He is D
acquitted of the charges and he is ordered to be set at liberty
forthwith if not required in any case.

Devika Gujral                             Appeals disposed of.

                                                                 E




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