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Allahabad High Court · body

2010 DIGILAW 936 (ALL)

VISHAL PARMANAND v. STATE OF U. P.

2010-03-19

B.N.SHUKLA, YATINDRA SINGH

body2010
JUDGMENT Hon’ble Yatindra Singh, J.—Children are innocent, unaware of the dangers lurking ahead they require care and protection rather than the sad fate of the boy, as in this case : this appeal is a stark reminder of it. THE FACTS 2. Manish Joshi (the Informant) is computer operator working in Ghaziabad. His son Dhananjay Joshi (the Deceased) was fair, 135 cm tall and was aged about 8 years. He used to learn Judo. On 6.9.2004 at 5:30 pm, he had gone to the park in sector-3, block-11 for his Judo-Karate class but never came back. His father, the Informant lodged a report with the police station Sahibabad District Ghaziabad on the same day at 10:35pm. The Informant also informed that the Deceased was wearing white dress of Judo-Karate and blue coloured slippers. 3. Another two days passed by, yet there was no trace of the Deceased and the Informant got worried. He went to the police station at 9:30 pm on 8.9.2004. He lodged another report expressing his doubts that the Deceased might have been kidnapped. 4. There were no phone calls, no trace of the Deceased for another two days, then the case unfolded like a thriller and police got into action : their investigation was equally dramatic. Phone Calls for Ransom 5. On 10.9.2004, the Informant received a phone call on the Reliance mobile number 33057452 (Informant’s mobile)1 that the Deceased is with the caller and money be arranged. Subsequently, some more phone calls upto 16.9.2004 asking ransom for the Deceased were received on the Informant’s phone. The Informant insisted that he should be permitted to talk with the Deceased but the Deceased was never put on the phone line by the assailants. Appendix-1 is an index of all other appendixes and explains mnemonic names of different phone numbers. The details of the calls demanding ransom on the Informant’s mobile are mentioned in Appendix-2. 6. The phone numbers of the phones from where calls were being made was never displayed except in the first and the last phone call. They were traced to a PCO in Murad Nagar district Ghaziabad. The other phone calls, where no phone number was displayed, were traced to Balasore, Orissa. This gave an inkling to the police that the assailant may be someone known to the family living in Murad Nagar and who hails from Orissa. They were traced to a PCO in Murad Nagar district Ghaziabad. The other phone calls, where no phone number was displayed, were traced to Balasore, Orissa. This gave an inkling to the police that the assailant may be someone known to the family living in Murad Nagar and who hails from Orissa. The police started looking for such a person. The Informant told them about Vishal Permanand (Appellant-1) and one more such person who were working in the shop of his younger brother. 7. The police took double pronged investigation : one investigating officer (IO) Alok Kumar (PW-11) was sent to Balasore, Orissa and the other IO, RB Kaul (PW-13) continued investigation at Ghaziabad. Police Investigation-Prosecution Case 8. Alok Kumar (PW-11) armed with the calls details of Informant’s mobile (which only had area code but not phone number) contacted Bharat Sanchar Nigam Limited (the BSNL) employees Shashidhar (PW-5) and Ram Chandra Nayak (PW-6) at Balasore, Orissa. They informed him that : At least four calls were from Basta main exchange that in turn has calls from 17 small exchanges; The remaining calls could not be located as their machines were not totally functional; Out of these 17 exchanges, calls from 12 exchanges do not indicate phone numbers as the callers-IDs have not been released; The machines in the PCOs have record of last two months and that can indicate from which PCO, the calls were made. These facts are deposed by the aforesaid two BSNL employees and Alok Kumar (PW-11) at the trial. 9. Alok Kumar (PW-11) had started checking the machine of the PCOs under the aforesaid 12 exchanges and then came across two PCOs that had call references to Informant’s mobile. They were across a railway crossing and were at 50 meters apart. One belonged to Chakradhar Giri (PW-7) (the Chakradhar PCO) and the other belonged to Ravindra Nath Khamre (PW-8) (the Khamre PCO). 10. During investigation with the PCO owners, the name of Subhash Rai (Appellant -3) surfaced. It was revealed that : Appellant-3 rings up the Informant’s number and another UP number 0-9412620338; and One Rajesh Panda (Appellant-2) from Ghaziabad/ Delhi also rings up and calls Appellant-3. 11. 10. During investigation with the PCO owners, the name of Subhash Rai (Appellant -3) surfaced. It was revealed that : Appellant-3 rings up the Informant’s number and another UP number 0-9412620338; and One Rajesh Panda (Appellant-2) from Ghaziabad/ Delhi also rings up and calls Appellant-3. 11. The police investigation at Ghaziabad revealed that : Mobile number 0-9412620338 was in the name of Arun Kumar Lala (PW-4), Additional General Manager, Ordinance Factory, Murad Nagar, Ghaziabad; He had taken it for use of appellant-2; and This mobile (numbered 9412620338) (Panda’s mobile) was used by Appellant-2. 12. The outgoing call details of Panda’s mobile indicated that calls were made to the phones to the two PCOs. These call details are indicated in two charts in Appendix-3. They also indicated phone calls to the three other mobile numbers (9437146683, 9437104932 and 9437159410) in Orissa. These call details are indicated in Appendix-4. 13. The incoming call details of Panda’s mobile indicated one call from the same PCO at Murad Nagar, Ghaziabad and many other calls where neither phone number nor the area code was displayed. These details are indicated in Appendix-5. The prosecution case is that the call details where neither phone number nor area code is indicated are from Balasore. 14. The Lok Kumar (the IO at Orissa) (PW-11) alongwith the local police Sub-Inspector Balbhadra Nayak (PW-9) arrested Appellant-3 on 3.10.2004 at 1:00 pm at the Khamre PCO. At the time of the arrest, they recovered (recovery memo Ex Ka-8) : Receipts of making phone calls from the Khamre PCO (Ex-1 to 6); Receipts of making phone calls from the Chakradhar PCO (Ex-7 to 14); and Three mobile phones (Recovery memo Ex Ka-16 to 18) that were dialled from Panda’s mobile namely mobile numbers (9437146683, 9437104932 and 9437159410). These mobiles are referred to as Subhash’s mobiles. These are case materials. The relevant details of the receipts are mentioned in two charts in Appendix-6. 15. On the same day (3.10.2004), RB Kaul (the IO at Ghaziabad) (PW-13) went to the house of Arun Kumar Lala (PW-4) to inquire about the mobile in his name that appeared to be connected with the crime. Arun Kumar Lala (PW-4) informed him that : The phone was being used by Appellant-2; and IO could inquire from him. 16. The IO talked to Appellant-2, who is said to have confessed the committing of the crime with Appellant-1 and 3. Arun Kumar Lala (PW-4) informed him that : The phone was being used by Appellant-2; and IO could inquire from him. 16. The IO talked to Appellant-2, who is said to have confessed the committing of the crime with Appellant-1 and 3. Thereafter, Appellant-2 was taken into custody. They went to the house of Appellant-1, where he was also taken into custody. Then, on their disclosure clothes, slippers (Ex Ka-3), and skeleton (bones) (Ex Ka-4) were recovered from the side path of Gang canal. 17. The police submitted a charge-sheet against the three accused on 30.12.2004. The Chief Judicial Magistrate Ghaziabad (the CJM) took cognizance on 3.1.2005. The case was committed to the Court of session on 5.2.2005. It was registered as ST No. 403 of 2005. The following charges were framed against the accused : Vishal Permanand (Appellant-1) and Rajesh Kumar Panda (Appellant-2) were charged under Section 302 and Section 364-A read with Section 34 IPC; and Subhash Rai (Appellant-3) was charged under Section 364-A read with 34 IPC. 18. Among the others, the prosecution filed the following documents : Recovery memo of clothes, belt and slipper (Ex Ka-3); Recovery memo of Skeleton bones and earth (Ex Ka-4); Recovery memo of arrest of Appellant-3 (Ex Ka-7); Property (phone bills and 3 mobiles) seizure memo (Ex Ka-8); Post-mortem report dated 3.10.2004 (Ex Ka-6); Phone call details (Ex Ka-19/1 to 19/26); Site Plan where the Deceased used to go for Judo classes (Ex Ka-15); Site plan from where recovery of skeleton, Judo dress and slipper was made (Ex Ka-16).;Report of the Vidhi Vigyan Prayogshala dated 4.4.2005 sent by letter dated 1.10.2005 (Paper No. 13-Ka); DNA report sent vide letter dated 5.8.2005 (Paper No. 11-Ka/6 to 11-Ka/9). 19. The prosecution examined the following witnesses : Manish Joshi (PW-1) : Informant and father of the Deceased; Anoop Kumar Joshi (PW-2) : Uncle of the Informant and witness of the recovery memos (Ex Ka-3 and Ka-4); Amar Deep Haldhar (PW-3) : Karate instructor; Arun Kumar Lala (PW-4) : Additional General Manager Ordinance Factory, Muradnagar, Ghaziabad; Shashidhar Barik (PW-5) : Employee of BSNL posted as SDEP-III in Balasore exchange; Ram Chandra Nayak (PW-6) : SDO Telephone Balasore; Chakradhar Giri (PW-7) : PCO owner at Balasore; Ravindra Nath Khamre (PW-8) : Other PCO owner at Balasore; Balbhadra Nayak (PW-9) : Sub-Inspector posted at Balasore, Orissa, had accompanied PW-11 for the arrest of Subhash Rai; Dr. Dinesh Mohan Saxena (PW-10) : Doctor, conducted the post-mortem of the (skeleton bones); Alok Kumar (PW-11) : Investigated the case in Orissa and arrested Appellant-3; Rajendra Singh (PW-12) : Constable police station Sahibabad; RB Kaul (PW-13) : First IO, arrested appellant-2 and 3 and recovered the bones, clothes and slipper (Ex Ka-3); JP Yadav (PW-14) : Subsequent IO, filed the charge-sheet. 20. The accused were examined on 19.2.2008 under Section 313 CrPC. They did not file any documents but produced one witness namely, Praveen Kumar (DW-1). 21. The trial Court convicted the appellants on 11.9.2009 and awarded the following punishment on 16.9.2009. Rajesh Kumar Panda and Vishal Permanand (appellant-1 and 2) were awarded death sentence under Sections 364-A and 302 IPC; Subhash Rai (appellant-3) was awarded life imprisonment and a fine of Rs.50,000.00 under Section 364-A IPC and in default of payment of fine three months further simple imprisonment. 22. The trial Court has sent Reference No. 11 of 2009 to the High Court for confirmation of death sentence under Section 366 CrPC. The appellants have also filed Criminal Appeal No. 6080 of 2009. POINTS FOR DETERMINATION 23. We have heard Sri Ram Babu Sharma, counsel for the appellants; Sri DR Chaudhary, GA, Sri Arunendra Kumar Singh, AGA and Sri Anand Tiwari, brief holder for the State.2 The following points arise for determination in this case : (i) Whether mobile No. 9412620338 (Panda’s mobile) was used by Rajesh Kumar Panda (Appellant-2); (ii) Whether the extra-judicial confession is admissible; (iii) Whether the reliance phone number 33057452 (Informant’s mobile) was used by the Informant; (iv) Whether the call details are forged; (v) Whether the calls mentioned in Chart-1 of Appendix-2 are from Balasore, Orissa; (vi) Whether the recovery of chits and mobile phones from Appellant-3 is valid; (vii) Whether the mobile phone Nos. 9437146683, 9437104932 and 9437159410 (Subhash’s mobile) were used by appellant-3; (viii) Whether appellant- 3 has made phone calls from Balasore, Orissa; (ix) Whether at the relevant time, Appellant-2 and 3 were in touch with each other; (x) Whether the evidence of the PCO owners is inadmissible as they were neither granted pardon nor made approver in the case; (xi) Whether recovery of clothes, belt (judo dress), slipper, and skeleton (bones) is vitiated in law; (xii) In case the answer to the preceding question is in negative then do the recovered items relate to the Deceased? (xiii) Whether the appellants can be convicted even if the dead-body is not found; (xiv) Whether the irregularities in the trial have resulted in failure of justice, vitiating the trial; (xv) What are the circumstances against the accused? Are they proved; (xvi) Whether the appellants are guilty; (xvii) In case, appellant-3 is also guilty, then what offence has he committed; (xviii) In case the appellants are guilty, then what punishment should be awarded to them? 1st POINT : MOBILE PHONE (9412620338) USED BY APPELLANT-2 24. Arun Kumar Lala (PW-4) has deposed that : His relationship with his wife was not happy. Appellant No. 2 had worked as domestic servant in his house for last 10-12 years and had become very close to him; He had started treating him as adopted son; Appellant-2 solemnised love marriage with Seema daughter of Rajesh Permanand and went to Orissa with her after marriage; Appellant-2 came back after death of his father-in-law and lived in his in-law’s house and some time with him; He had a scooter numbered as UP 14G-3953. It was not used by him. Appellant-2 was using it; Appellant-2 was searching for a job and in this connection he required a phone. He could not get one as he did not have identity proof; He applied for the mobile phone on his ID on 3.9.2004 and phone (9412620338) (Panda’s phone) was allotted to him. It became operative on 7.9.2004. This was given to appellant-2, who was using it. 25. Arun Kumar Lala (PW-4) has been cross-examined at length. There is neither anything in the cross-examination nor any suggestion that this part of his deposition is incorrect. We accordingly hold that the mobile phone which was allotted in the name of Arun Kumar Lala (PW-4) was being used by appellant-2. We are referring to it as Panda’s mobile. 2nd POINT : EXTRA JUDICIAL CONFESSION EXCLUDED 26. Arun Kumar Lala (PW-4) has deposed that : RB Kaul (PW-13) had come to his house to inquire about Panda’s mobile; He informed RB Kaul (PW-13) that this phone number was taken by him on the request of Appellant-2, who was using it; This could be inquired from Appellant-2, who was also in the house. 27. Arun Kumar Lala (PW-4) has deposed that : RB Kaul (PW-13) had come to his house to inquire about Panda’s mobile; He informed RB Kaul (PW-13) that this phone number was taken by him on the request of Appellant-2, who was using it; This could be inquired from Appellant-2, who was also in the house. 27. Arun Kumar Lala (PW-4) has further deposed that on being questioned, Appellant-2 provided the following informations : (i) Appellant-1 and 2 conspired to kidnap the Deceased and ask for ransom; (ii) On 6.9.2009, they went to park in block No. 22 sector 3 where the Deceased used to go for his Judo/ Karate classes. After the class was over, they met the Deceased who greeted Appellant-1; (iii) Appellant-1 informed the Deceased that his uncle’s motor cycle was not working and the uncle had called him; (iv) They took the Deceased on the scooter to the residence of Arun Kumar Lala (PW-4) where they had planned to keep him. But as he was in the house and they did not know what to do with the Deceased. They thought of leaving him, but appellant-1 said if the Deceased was left then, He would disclose everything; and They would be in trouble. It was for this reason that they killed him at the side road of Gang canal. (v) Later, they started asking the Informant for ransom; (vi) Appellant-2 rang up his friend Subhash Rai (Appellant-3) at Balasore, Orissa from his mobile and told him that : They had kidnapped the Deceased; and He should ring up on reliance phone No. 33057452 (Informant’s mobile) which belonged to the wife of the Informant’s younger brother to get ransom. (vii) Appellant-3 started demanding money from the PCO, whose number did not come on the mobile. Thereafter he used to ring them on Panda’s mobiles and they were in constant touch with each other. 28. The prosecution case is that appellant-2 had confessed the crime in front of Arun Kumar Lala (PW-4). This extra judicial confession has been relied upon by the Session’s Court. According to the counsel for the appellants : (i) The police officer was also present when this confession was made; (ii) It was a confession made to the police officer during custody; (iii) It was done under coercion and threat; (iv) It is not admissible in law. This extra judicial confession has been relied upon by the Session’s Court. According to the counsel for the appellants : (i) The police officer was also present when this confession was made; (ii) It was a confession made to the police officer during custody; (iii) It was done under coercion and threat; (iv) It is not admissible in law. Let’s consider the circumstances in which it was made. 29. Appellant-3 was taken into custody by RB Kaul (the IO at Ghaziabad) (PW-13) only after the information in paragraph 27 was divulged. This information is confession. The question is, whether it is admissible. There is a doubt whether the appellant-2 was in custody at the time when he confessed the crime. It is relevant to note that : He was not being questioned at the police station; The RB Kaul (the Ghaziabad IO) also had not gone to question Appellant-2 but to question Arun Kumar Lala (PW-4) about the mobile phone in Arun Kumar Lala’s name; Appellant-2 was arrested after he confessed the crime but not before his confession. 30. We would have investigated the matter further and considered it whether this confession is admissible or not but refrain from doing so, as the GA on behalf of the State made a statement that : Information given in paragraph 27 of this judgement is in presence of the police officer; It is inadmissible; and He does not want to rely upon the same. We accordingly exclude the extra-judicial confession contained in paragraph 30 of this judgement from our consideration. 31. Nevertheless, the GA submitted that apart from the confession (mentioned in paragraph 27 of the judgement) the other information provided by Appellant-2 is not a confession and is admissible. This submission regarding other information divulged by Appellant-2 will be considered later (see point-15, sub heading ‘Third and Fourth Circumstance’). 32. There is no dispute that the information leading to discovery of skeleton (bones), dress, belt and slipper will be admissible under Section 27 of the Evidence Act. However, there is dispute whether, The recovery is valid; The dress, slipper and bones are of the Deceased. It will be considered later (see point-11 and 12). 3rd and 4th POINT : CALL DETAILS¯NOT FORGED 33. However, there is dispute whether, The recovery is valid; The dress, slipper and bones are of the Deceased. It will be considered later (see point-11 and 12). 3rd and 4th POINT : CALL DETAILS¯NOT FORGED 33. The counsel for the Appellants submitted that : (i) The reliance phone No. 33057452 is not of the Informant; (ii) The call details are neither signed nor sealed; (iii) They are not genuine; (iv) The entire prosecution case is doubtful. Reliance Mobile—Used by the Informant 34. The prosecution has examined the Informant (PW-1). He has deposed that : He uses reliance mobile number 33057452; and He has received ransom calls on this mobile; There is neither any suggestion nor anything in the cross-examination that this mobile was not used by the Informant. 35. The appellants have examined Pravin Kumar, Legal Executive Reliance Communication, New Delhi (DW-1). He has deposed that he does not know to which State this number belongs too. In our opinion he is not a competent person to depose about phone numbers. 36. It is not necessary that a person uses mobile that is registered in his name. Many times, the mobiles are registered in the name of one person and used by others. PW-11 in his cross-examination has deposed that this phone is in the name of wife of the Informant’s brother. The question who is registered owner of reliance phone number 33057452 is immaterial—the material thing is whether : It was used by the Informant; and He had received ransom calls on the same. This has been proved in evidence. This mobile number is referred to as Informant’s mobile. 37. The counsel for the appellants brought to our notice that part of deposition of Pravin Kumar (DW-1), where he has deposed that : Whenever any person wants call details, then that person has to give request in writing; The call details are signed, sealed, and They are then issued. On its basis, he submitted that : There is no application to obtain the call details; They are neither signed nor sealed; They are not genuine 38. Pravin Kumar (DW-1) is legal executive. He is neither a man from the technical side nor from the record keeping section. He has also deposed that : He does not know where the call details are kept; The records were destroyed in Bombay floods. Pravin Kumar (DW-1) is legal executive. He is neither a man from the technical side nor from the record keeping section. He has also deposed that : He does not know where the call details are kept; The records were destroyed in Bombay floods. In our opinion, this witness is not a competent witness to discuss about the record of the call details. Apart from it, his deposition is of no value, as he has also deposed that the records have been lost. Call Details—Genuine 39. RB Kaul (PW-13) is the IO who has investigated the case at Ghaziabad. He has filed and proved the call details (Ex Ka-19/1 to 19/26). He has explained in his cross-examination that : The call details are automatic computerised call details; and No signatures are necessary. This witness has been cross-examined at length on the call details. There is neither anything in his cross-examination nor anything (apart from statement of DW-1) has been pointed out to us to show that these calls are forged. There is not even such a suggestion. 40. In our opinion, the prosecution has proved that : Reliance mobile number 33057452 was used by the Informant; and The call details are genuine. 5th POINT : CALLS ARE FROM BALASORE, ORISSA 41. Chart-1 of Appendix-2 gives details of the relevant calls from Balasore on the informant’s mobile. The area code of Balasore is 06781 but in the Informant’s mobile incoming call are from 06782-000000. This is explained by Alok Kumar (PW-11). He has deposed that he was informed that : The calls coming from Basta main exchange go from Balasore main exchange via Cuttak; and Those exchanges, where caller identification is not released, the Basta exchange allots code 06782 and number 000 000 and forwards the call. This explanation is not challenged by the appellants. There is neither any suggestion that these calls are not from Balasore nor any such argument was raised. We accordingly bold that these calls, where phone number was not disclosed, were from Balasore, Orissa. 6th TO 8th POINTS : APPELLANT-3 DEMANDED RANSOM FROM BALASORE 42. The counsel for the appellants submitted that : (i) Recovery of mobile and chits from Appellant-3 is invalid; (ii) There is nothing to show that mobiles are registered in his name. We accordingly bold that these calls, where phone number was not disclosed, were from Balasore, Orissa. 6th TO 8th POINTS : APPELLANT-3 DEMANDED RANSOM FROM BALASORE 42. The counsel for the appellants submitted that : (i) Recovery of mobile and chits from Appellant-3 is invalid; (ii) There is nothing to show that mobiles are registered in his name. They do not belong to him; (iii) There is nothing to show that Appellant-3 was ringing up from the Balasore PCOs. (i) Recovery of Mobiles, Chits—Valid 43. The prosecution case regarding investigation and leading to arrest of Appellant-3 at the Khamre PCO has been previously mentioned (see heading ‘THE FACTS’ sub-heading ‘Police Investigation-prosecution case). At the time of arrest of Appellant-3, fourteen phone call receipts (Ex-1 to 6 of the Khamre PCO and Ex-7 to 14 of the Chakradhar PCO) and three mobile phones Ex-16 to 18 were recovered from him. These receipts indicate that appellant-2 used to ring up Informant’s as well as Panda’s mobile. Is this recovery is valid? 44. The counsel for the appellants submitted that the recovery is sham and unbelievable for the following reasons : (i) Why would a person carry receipts after ringing up from a PCO; (ii) There is no independent witness of the recovery; (iii) If a person is having three mobiles then what is necessity of ringing up from a PCO; (iv) If a person is going to a PCO to use the phone then why would he carry three mobile phones. 45. There could be many reasons why a person would keep receipts from a PCO. It has come in the evidence of the PCO owners (PW-7 and 8) that : Subhash Rai is a labourer; He was ringing Informant’s mobile as well Panda’s mobile. Apparently he was demanding money from the Informant. He might be keeping the receipts with him for the reason that : He was ringing up on account of others and the receipts might be required later to clear up the accounts; There might not be other safe place to keep them; or He might not trust keeping the receipt at any other place. The search and recovery cannot be disbelieved on this ground. 46. The recovery memo is witnessed by the two police officers as well as the PCO owners. The PCO owners are independent witnesses. They are not related to the Informant. The search and recovery cannot be disbelieved on this ground. 46. The recovery memo is witnessed by the two police officers as well as the PCO owners. The PCO owners are independent witnesses. They are not related to the Informant. Just because they are witnesses in the case does not mean that they are not independent witnesses. No mandatory provision has been brought to our notice that there should be an independent witness in such a recovery. 47. Alok Kumar (PW-11) has explained why there is no other witness in the recovery. He has deposed that : The others were afraid of being involved in the case; and No one was ready to be a witness. The case related to kidnapping in Ghaziabad, UP. A person may consider it to be a hassle to travel such a distance just to give evidence. There is satisfactory explanation for not having any other witness for the search and recovery. In any case, there are independent witnesses-the PCO owners. A copy of the recovery memo was given to appellant-3. It is so recorded in it. The recovery cannot be disbelieved on this ground. 48. In a case, where ransom is being demanded, no one is likely to use his own phone. A kidnapper is likely to use different PCOs so that there may be difficulty in tracing the culprit. There is no merit in the submission that why would a person, having three mobile phones, use a PCO to ring up. 49. Apart from above, the PCO owners have deposed that there was trouble in mobile connection. In such a situation, a person will use a PCO. This also explains as to why appellant-3 was using the PCOs at Balasore to ring up Panda’s mobile. 50. If a person has a mobile he is likely to carry it everywhere. This is the advantage of having the same. Appellant No. 3 had gone out of his house. He was likely to keep his mobiles with him. This is not unusual. The recovery of three mobile phones cannot be disbelieved on this ground. The recovery is valid. (ii) Mobiles used by Appellant-3 51. The mobiles were recovered from possession of Appellant-3. We have upheld the search as well as recovery memo. He was likely to keep his mobiles with him. This is not unusual. The recovery of three mobile phones cannot be disbelieved on this ground. The recovery is valid. (ii) Mobiles used by Appellant-3 51. The mobiles were recovered from possession of Appellant-3. We have upheld the search as well as recovery memo. As indicated in discussion under point-3 and 4 subheading ‘Reliance mobile - Used by the Informant.’ A person may use a mobile phone registered in another’s name; The relevant point is, who is using the mobile and not in whose name it was registered. They were found in possession of Appellant-3. He was the one using them. (iii) Appellant-3 Rang Up from the Balasore PCOs 52. At the relevant time, Shashidhar Barik (PW-5) was posted in the Balasore Tax Exchange as SDEP-III. He deposed that : PW-11 had asked him for the call details of a few numbers including that of the Informant and Panda mobile; He had given a copy of the same to him; He informed him that calls are coming from Basta exchange but he could not tell from which phone numbers they were coming. 53. At that time, Ramchandra Nayak (PW-6) was SDO Telephone Balasore, Orissa. He deposed that : There were 17 exchange in Basta exchange; In 12 exchanges, the caller ID was not released and as such phone numbers were not displayed; The phone calls could be traced after looking into the machine of the PCO; The machines at the PCO kept the record for last two months. 54. Alok Kumar (PW-11) had investigated the case at Balasore, Orissa. He deposed that : He looked into the machines of the PCOs under the aforesaid 12 exchanges from one side; He found two PCOs that contained Informant’s mobile number as out going number; They were across the Railway crossing and 50 meters away with each other; One was owned by Chakradhar Giri and the other was owned by Ravindra Nath Khamre; The record of the machine also tallied with the details in the calls mentioned in the chart-1 of Appendix-2. 55. Chakradhar Giri (PW-7) and Ravindra Nath Khamre (PW-8) are PCO owners at Balasore, Orissa. They deposed that : Appellant-3 used to ring up Informant’s mobile number and also used to ring up Panda’s mobile number; He used to call from these PCOs as the mobile connection was often not good. 56. 55. Chakradhar Giri (PW-7) and Ravindra Nath Khamre (PW-8) are PCO owners at Balasore, Orissa. They deposed that : Appellant-3 used to ring up Informant’s mobile number and also used to ring up Panda’s mobile number; He used to call from these PCOs as the mobile connection was often not good. 56. The aforesaid deposition of Chakradhar Giri (PW-7), Ravindra Nath Khamre (PW-8) and Alok Kumar (PW-11) shows that Appellant-3 was the person who was ringing up on The Informant’s mobile and had demanded money from him. Murad Nagar is a big place and the PCO owner there, could not identify the person who might have rung up the Informant’s phone from the Murad Nagar PCO but Balasore, Orissa is not such a big place : a PCO owner in Balasore can remember such a person. 57. In our opinion, (i) The recovery of chits and mobiles is valid and is believable; (ii) It is proved that Appellant No. 3 was the one who used the aforesaid Balasore PCOs and demanded money from the Informant; 9th POINT : APPELLANT-2 AND 3 WERE IN TOUCH 58. The prosecution case is that : Appellant-1 and 2 had kidnapped the Deceased; Appellant-3 demanded money for ransom. Was he in contact with them? 59. Appellants-2 and 3 were in close contract with each other. It is clear from the following facts : (i) Appellant-2 also used to ring up PCO. Chart-1 of Appendix-3 is phone calls from Panda’s mobile to the Khamre PCO whereas the chart-2 of the same appendix is of phone calls from Panda’s mobile to the Chakradhar PCO; (ii) Ravindra Nath Khamre (PW-8) has also deposed that one Rajesh Kumar Panda (Appellant-2) used to ring up from Delhi area for Appellant-3; (iii) Chakradhar Giri (PW-7) does not remember whether phone calls for Appellant-3 were received from Delhi or not but chart -2 of Appendix-3 indicates that phone calls were received in his PCO from Panda’s mobile as well. There were few phone calls to his PCO. It is possible that he does not remember them; (iv) Appendix-5 is call detail of the calls received on Panda’s mobile. Chart-1 of this appendix is call received on Panda’s mobile from Murad Nagar PCO whereas chart-2 of this appendix shows calls received, where no phone number or area code is displayed. There were few phone calls to his PCO. It is possible that he does not remember them; (iv) Appendix-5 is call detail of the calls received on Panda’s mobile. Chart-1 of this appendix is call received on Panda’s mobile from Murad Nagar PCO whereas chart-2 of this appendix shows calls received, where no phone number or area code is displayed. Apparently, these phones are from the exchange where the caller ID is not released. It is correct that from this chart, it cannot be said that these phone calls are from Balasore, Orissa (Chakradhar or Khamre PCOs) or from anywhere else. But this should be seen alongwith, Ex-1 to 14 the receipts recovered from Appellant-3 (Appendix-6); and Deposition of PW-7 and 8. It is clear that these calls were from the aforesaid PCOs. In any case it was for the Appellant-2 to explain from where he had received these calls. There is no explanation from his side. 60. In our opinion prosecution has proved that Appellant-2 and 3 were in constant touch with each other. Appellant-3 was in Orissa; Kidnapping was in Ghaziabad-quite a distance. We have no doubt that he was in conspiracy with the others in kidnapping and demanding money. 10th POINT : STATEMENT OF PCO OWNERS—ADMISSIBLE 61. The counsel for the appellant submitted that : The Balasore PCO owners (PW-7 and 8) are accomplice in the crime; Their deposition is admissible under Section 133 of the Evidence Act only if they are granted pardon under Section 306 CrPC and made approver. 62. There is a fundamental fallacy in this submission. The Balasore PCO owners are not accomplice in the crime. There is nothing to show that they were party to the conspiracy. Merely because appellant-3 used to ring up his conspirators at Ghaziabad from their PCO or some time Appellant-2 used to ring up Appellant-3 at their PCOs does not mean that they were also conspirators in the crime. 63. The Balasore PCO owners were examined for the facts within their knowledge. They also deposed about recovery of the chits and mobiles. Their ocular testimony is admissible. There is no question of they being made approvers in the case. 11th and 12th POINT : JUDO DRESS, SLIPPER-BELONGED TO DECEASED 64. 63. The Balasore PCO owners were examined for the facts within their knowledge. They also deposed about recovery of the chits and mobiles. Their ocular testimony is admissible. There is no question of they being made approvers in the case. 11th and 12th POINT : JUDO DRESS, SLIPPER-BELONGED TO DECEASED 64. The counsel for the appellants submitted that : (i) Recovery of bones, slipper, Judo dress, and belt is illegal; (ii) Judo dress, belt and slipper did not identify a person and could always be planted. (iii) There was nothing to indicate that bones were of the Deceased; (i) Recovery Valid 65. RB Kaul (PW-13) deposed that : He arrested appellant-2 first and then appellant-1 was arrested; thereafter On their pointing bones, slipper, Judo dress and belt were discovered. This is not only mentioned in the recovery memo Ex Ka-3 but is also deposed to by the Informant (PW-1) and Anoop Kumar Joshi (PW-2), witnesses in the recovery memo. It is also signed by appellant-1 and 2. There is nothing to vitiate the recovery. 66. It is correct that there is no independent witness but suffice to say, there was neither any enmity with these witnesses, nor any mala fide has been alleged against the police. Merely because the Informant (PW-1) is the father of the Deceased and Anoop Kumar Joshi (PW-2) is the uncle of the Informant, it cannot be ignored. However, the relevant question is, do they relate to the Deceased? (ii) Judo Dress of the Deceased 67. The Informant recognised the Judo dress and slippers. He has deposed about the same. The judo dress is distinctive; it was for a child : it could be identified. So is the case of the slipper. 68. It is correct that they can be planted but we have already indicated there is neither any enmity nor mala fide. There is no reason to do so. There is nothing to show that ocular evidence in this regard is false or incorrect. Bones’ Test—Inconclusive 69. The bones were sent for DNA testing. The DNA report is inconclusive on the question whether they could be of the Deceased or not. Report of the Vidhi Vigyan Prayogshala and DNA report are on the records (paper number 13 Ka and paper number 11 Ka/6 to 11-Ka/9). However they are not exhibited and cannot be taken into account. 70. The bones were sent for DNA testing. The DNA report is inconclusive on the question whether they could be of the Deceased or not. Report of the Vidhi Vigyan Prayogshala and DNA report are on the records (paper number 13 Ka and paper number 11 Ka/6 to 11-Ka/9). However they are not exhibited and cannot be taken into account. 70. The doctor (PW-10) has deposed that the bones are of human being and not of an animal but he could not tell the age of the person to whom they belonged. In our opinion no final conclusion can be drawn either way about the bones being that of the Deceased or not though there can be a presumption as they were in proximity with the judo dress and slipper of the Deceased. 71. In our opinion, The discovery is not vitiated and can be relied; The Judo dress and slipper belonged to the Deceased; and They were discovered at the instance of appellant-1 and 2. 13th POINT : DEAD-BODY NOT FOUND—IMMATERIAL 72. The counsel for the appellants submitted that : The dead-body of the Deceased was not found; There was no evidence that the Deceased was died; The corpus delicti has not been proved. 73. In this connection, the counsel for the appellants brought to our notice the following passage from Modi’s Medical Jurisprudence and toxicology (23rd edition page 204), ‘In India, owing to its rapid decomposition in the hot seasons, or through damage caused by wild animals when exposed on the outskirts of a village, the identification of a dead-body sometimes becomes very difficult. However, it is essential for a dead-body to be thoroughly identified and the proof of corpus delicti to be established before a sentence is passed in murder trials, as unclaimed, decomposed bodies, or portions of a dead-body, or even bones are sometimes brought to support false charges. More so because in a country like India, it is not difficult to obtain such bodies, since villagers are in the habit of cremating bodies partially, or throwing them into shallow streams, rivulets or canals, or burying them in shallow graves from where carrion feeders may dig them out. Sometimes, in order to mislead, someone else’s clothes or handkerchief may be deliberately put on the dead person.’ 74. Bryan A Garner in ‘A Dictionary of Modern Legal Usage’ (2nd edition) explains, ‘Corpus delicti. ... Sometimes, in order to mislead, someone else’s clothes or handkerchief may be deliberately put on the dead person.’ 74. Bryan A Garner in ‘A Dictionary of Modern Legal Usage’ (2nd edition) explains, ‘Corpus delicti. ... The general sense of corpus delicti is “the nature of the transgression.” ... In cases of felonious homicide, the corpus delicti is usu. evidence of a death and of a criminal agency as its cause. Thus, corpus delicti “has traditionally been established by proof of the dead-body and evidence of an unnatural cause of death.’’ ..... But the dead-body is not necessary to establish a corpus delicti. “Despite clarification of the early confusion about the meaning of the Latin idiom ...... as used in homicide cases, there remains, among many laymen at least, some lingering misunderstanding that the corpus delicti in such cases refers to the body of the deceased. It does not, of course, and refers instead to the body (corpus) of the wrong (delicti), ‘the loss sustained.’” ....................................... The phrase is some times misspelled corpus delecti, a sort of macabre etymological double entendre.’ 75. Corpus delicti is Latin word meaning the foundation or material substance of a crime. It is often used to mean the physical object on which the crime was committed such as a dead-body or charred remains of a house or it might itself signify murder or Arson. However, in crime Jargon it refers to the body of the murder victim. 76. The recovery or tracing dead-body is not necessary before convicting a person for culpable homicide. It is merely a rule of caution and nothing more. The necessary condition is that there should be reliable and acceptable evidence that the offence has been committed. And in cases, where the offence is sought to be proved by circumstantial evidence, then the circumstances must be proved and they should be of a clinching and definite character leading to the inference that the victim has been killed.3 77. In this case, the dead-body of the Deceased has not been found, the DNA test on the bones is inconclusive but judo dress and slippers have been recognised. Since his disappearance, the Deceased has neither been heard nor found. We have no doubt that the Deceased has been killed. 78. The Deceased was kidnapped. The Informant received phone calls demanding ransom. Since his disappearance, the Deceased has neither been heard nor found. We have no doubt that the Deceased has been killed. 78. The Deceased was kidnapped. The Informant received phone calls demanding ransom. This has given apprehension in the mind that the Deceased would be put to death. It cannot be said that the appellant cannot be tried for the offence. 14th POINT : NO PREJUDICE-TRIAL NOT VITIATED 79. The counsel for the appellants submitted that the trial was vitiated due to the following irregularities in conducting the trial : (i) PW- 4 to 9 were examined as witnesses though their names were not mentioned in the police report under Section 173 CrPC; (ii) The statements of the aforesaid witnesses were recorded under 161 of CrPC yet their copies were not supplied; (iii) The objections were raised at the time of recording the depositions. Yet, no order was passed deciding them. Have these irregularities vitiated the trial? 80. The names of PW-4 to 9 were not mentioned as witnesses in the police report under Section 173 CrPC. At the time of recording evidence, the following objections were taken. They are also mentioned alongwith the depositions : (a) In respect to PW-7 and PW-8 only objection was that their names were not mentioned in the charge-sheet. (b) In respect to PW-4 to PW-6 two objections were taken : (i) The names were not mentioned in the charge-sheet; and (ii) Copies of their statement under Section 161 CrPC were not supplied; There is no objection so far as PW-9 is concerned. 81. The prosecution filed the following three applications to examine PW-5 to PW-9 and one other person whose names were not recorded in the report under Section 173 CrPC. In some of the applications, some orders were also passed. These applications and the orders passed thereon are as follows : (i) Application dated 18.9.2005 : To record the evidence of Shashidhar Barik (PW-5), SDO-II Basta (PW-6), Ravindra Nath Khamre (PW-7), Chakradhar Giri (PW-8) and one Jaswant Samal on the ground that their names in report under Section 173 CrPC were omitted due to mistake. In this application, it is mentioned ‘Sir opposed’. No orders have been passed on the same. (ii) Application dated 30.10.2006 : To record the evidence of Shashidhar Barik and Ram Chandra Nayak (PW-5 and PW-6). It was allowed on the same date. In this application, it is mentioned ‘Sir opposed’. No orders have been passed on the same. (ii) Application dated 30.10.2006 : To record the evidence of Shashidhar Barik and Ram Chandra Nayak (PW-5 and PW-6). It was allowed on the same date. (iii)Application dated 21.12.2006 : To record the evidence of BB Nayak (PW-9). It was allowed on the same date. There is no application to record the evidence of Arun Kumar Lala (PW-4). 82. Section 465 CrPC is titled as ‘Finding or Sentence when reversible by reason or error, omission or irregularity’. It provides that : A finding, order or sentence of competent Court cannot be set aside in appeal or revision/ or reference due to any irregularity or error in the trial unless there has been failure of justice; In determining the question of failure of justice, a Court has to take into account whether the objection could or should have taken at an earlier stage. The trial would be vitiated only if the irregularities have resulted into failure of justice. Let’s consider if there has been failure of justice. Names not Mentioned in Police Report—No Injustice 83. The name of the witnesses to be relied upon by the prosecution should be indicated in the police report under Section 173 CrPC. Nevertheless, a Court has power to examine any witness even if his name is not mentioned in the report under Section 173 CrPC. This can be done on an application filed by the prosecution or of its own under Section 311 CrPC. It is not such an irregularity that causes any prejudice : it does not occasion any failure of justice itself-the only requirement is that : (i) In case statement under Section 161 CrPC is recorded then its copy should be given; and (ii) The defence should have sufficient time to prepare for cross-examination. 84. In our opinion, recording evidence of a person not mentioned in the report under Section 173 CrPC is an irregularity but it is not such an irregularity so as to vitiate the trial or render conviction or sentence illegal by itself. In order to vitiate the trial, it has to be accompanied by the other two conditions mentioned in the preceding paragraph. Appellant had Knowledge of the Contents of Statements U/S 161 CrPC 85. It is not necessary that the statement of all witnesses should be recorded under Section 161 CrPC. In order to vitiate the trial, it has to be accompanied by the other two conditions mentioned in the preceding paragraph. Appellant had Knowledge of the Contents of Statements U/S 161 CrPC 85. It is not necessary that the statement of all witnesses should be recorded under Section 161 CrPC. In case the statement is not recorded then it will not be necessary to give the copy of the same. However, in case statement under Section 161 is recorded then copy of the same has to be supplied : non supply of the statements vitiates the trial. The Privy Council in Katya v. Emperor : AIR 1947 Privy Council 67 observed : ‘The right given to an accused person by this section is a very valuable one and often provides important material for cross-examination of the prosecution witnesses. However, slender the material for cross-examination may seem to be, it is difficult to gauge its possible effect. Minor inconsistencies in his several statements may not embarrass a truthful witness, but may cause an untruthful witness to prevaricate, and may lead to the ultimate break down of the whole of his evidence and in the present case it has to be remembered that the accused’s contention was that the prosecution witnesses were false witnesses.’ 86. A scrutiny of deposition of PW-4 to 9 reveals the following : (i) For one of them, namely PW-9, no objection was taken; (ii) The cross-examination of two witnesses (PW-7 and PW-8) indicates that they were confronted with their statements under Section 161 CrPC. It shows that the accused had copies of statements under Section 161 CrPC of these witnesses before their examination and were fully prepared; (iii) The statement of PW-5 is exhaustive. In his examination-in-chief he has deposed that he had given details of two phone numbers namely 011-33057452 and 011-334556. In his statement under Section 161 CrPC he had mentioned about only one telephone number namely 011-33057452. The statement in trial is in variance with statement under Section 161 CrPC though not a material one : there is no other material contradiction in his deposition with his statement under Section 161 CrPC. In his statement under Section 161 CrPC he had mentioned about only one telephone number namely 011-33057452. The statement in trial is in variance with statement under Section 161 CrPC though not a material one : there is no other material contradiction in his deposition with his statement under Section 161 CrPC. In the cross-examination PW-5 was asked the specific question ‘In your statement you have referred to one phone number 011-33057452 but not the other one.’ This question could not be asked unless the accused knew about the contents of the statement under Section 161 CrPC. This shows that they had full knowledge about the contents of statement of 161 CrPC of PW-5 and they were prepared for cross-examination. (iv) There is no contradiction or material variance between their deposition and their statements under Section 161 CrPC. The cross-examination of PW-4 and PW-6 is exhaustive. This shows that they were ready for cross-examination of these witnesses. 87. The statements under Section 161 CrPC of all witnesses including PW-4 to PW-9 are on record of the case alongwith the case diary. They were filed alongwith the report under Section 173 CrPC. The counsel for the appellants had copies of the same i.e. statements of all witnesses (Including PW-4 to PW-9) under Section 161 CrPC with him, when this appeal was argued. However, there is neither anything on the record to show that the copies of these statements were supplied to the accused nor prosecution is able to make a statement if this was done. 88. The counsel for the appellants could not make statement how appellants received copies of the statements if they were not supplied by the prosecution or the Court. He was also permitted to see the file and requested to point out, Any contradiction other than already asked in the cross-examination; or Any other question that appellants wanted to ask but could not do so as the statements under Section 161 CrPC are said to be not supplied to them. No such contradiction or question was pointed out. 89. He was also permitted to see the file and requested to point out, Any contradiction other than already asked in the cross-examination; or Any other question that appellants wanted to ask but could not do so as the statements under Section 161 CrPC are said to be not supplied to them. No such contradiction or question was pointed out. 89. It is possible that : (i) The copies of statement under Section 161 CrPC were supplied to the appellants but due to the mistake4 of, The Prosecuting counsel before the trial Court it could not be pointed out; or The trial judge neither this fact could be recorded, nor any order was passed on the objections; (ii) The appellants copied down the statements under Section 161 CrPC or got them otherwise as they were on the record before the trial Court. Objection for Time—Not Raised 90. The Supreme Court in Noor Khan v. State of Rajsthan : AIR 1964 SC 286 observed that : ‘However, strong the inference, may be failure to supply copies will not by itself render the trial illegal. The Court must in each case consider the nature of the defect, the objection raised at the trial, and the circumstances which lead to an inference of prejudice. The strength of the inference of prejudice must always be adjudged having regard to the circumstances of each particular case.’ 91. The objection taken by the appellants at the time of examination of PW-4 to PW-6 has been mentioned previously (paragraph 80). There was no objection that : They did not have copies of their statements under Section 161 CrPC and could not prepare the case; Before proceeding further, a copy of their statements under Section 161 CrPC be given; or The case be adjourned so that they might prepare for cross-examination. On the contrary their cross-examination shows that detailed cross-examination was done. 92. It is relevant to point out that there is no objection that copies of the statements under Section 161 CrPC be given to them and the case be adjourned to the next date so that they might prepare for cross-examination. The appellants were represented by the counsel of their choice. It was easy for them to do so. Yet, they have not done it. The appellants were represented by the counsel of their choice. It was easy for them to do so. Yet, they have not done it. The reason appears to be simple : they had full knowledge about the contents of the statements under Section 161 CrPC and were ready for cross-examination. 93. In our opinion, in view of the following circumstances, it cannot be said that there was any prejudice or failure of justice : The cross-examination has been exhaustive; In case of contradictions, the questions have been already asked; Neither any other contradiction was pointed out nor any other question was suggested; Appellants had full knowledge of the contents of statements under Section 161 CrPC; Neither the copies of the statements under Section 161 CrPC nor time to prepare cross-examination were asked for. It appears that the objection during deposition of PW-4 to 8 was taken merely for the purpose of preparing a ground in the higher Court. The conviction and sentence cannot be set aside on this ground. 15th POINT : CIRCUMSTANCES PROVED 94. This case is based on circumstantial evidence. The law—when a case can be said to be proved against an accused on circumstantial evidence—has been established in different decisions (see below for citations)5. It is as follows : (i) The circumstances from which the conclusion of guilt is to be drawn should or must be established. (ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (iii) The circumstances should be of a conclusive nature and tendency. (iv) They should exclude every possible hypothesis except the one to be proved, and There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been perpetrated by the accused. 95. (iv) They should exclude every possible hypothesis except the one to be proved, and There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been perpetrated by the accused. 95. The following circumstances indicate that the appellants are guilty of the crime : (i) The Deceased was kidnapped without any commotion in Ghaziabad indicating that it was done by some known person; (ii) Most of the phone calls demanding ransom were made from Balasore, Orissa by appellant-3; (iii) The person should have some connection with Orissa as calls for ransom were made from Orissa; (iv) The relationship and status of the Applicants : Appellants-1 and 2 are close relatives; Appellants-2 and 3 are friends; (v) They were in need of money; (vi) Appellants were in contact with each other; (vii) The recovery of the judo dress and slipper-that Deceased was wearing last time when he was seen alive-was at the instance and pointing of appellants-1 and 2. First Circumstance 96. The Deceased was kidnapped after Judo classes. The Informant (PW-1) has deposed that : Park was at about 100-150 paces from the house; The Deceased used to go and come back alone; He used to start from the park at 7:00 pm and reach the house at 7:05 pm. 97. Judo-Karate instructor (PW-3) has deposed that nothing unusual happened in the class. The Deceased never reached home : he must have been kidnapped on his way to his house. RB Kaul, the IO at Ghaziabad (PW-11) has deposed that the road from the park to the house is crowded. No unpleasant incident or any commotion is reported in the evening that day on the road from the park (where Judo classes were held) to the house. It shows that the Deceased was picked up by someone known to him. 98. The Informant (PW-1) has deposed that Appellant-1 had worked in the shop of his brother and used to drop the children to school. The Deceased knew him. Second Circumstance 99. This circumstance is proved while dealing points-3 to 8. We need not repeat again. Third to Fifth Circumstance 100. 98. The Informant (PW-1) has deposed that Appellant-1 had worked in the shop of his brother and used to drop the children to school. The Deceased knew him. Second Circumstance 99. This circumstance is proved while dealing points-3 to 8. We need not repeat again. Third to Fifth Circumstance 100. Arun Kumar Lala (PW-4) deposed that on being questioned by RB Kaul (the IO at Ghaziabad) (PW-13), appellant-2 had informed that : Appellant-2 after his marriage with Seema had gone to Orissa and worked in a construction company; He became friendly with Subhash Rai (Appellant-3). He came back to Ghaziabad after death of his father-in-law. Appellant -1 is his brother-in-law (lkyk). He was getting married. He needed money. Is this information admissible in view of Sections 24 or 26 of the Evidence Act? 101. There wasn’t any coercion when the aforesaid information was divulged. Arun Kumar Lala (PW-4) has also deposed that information was given when the RB Kaul (PW-13) asked with strictness ('k[rh ls). However, there is nothing on record to show that : Any threat or violence was used against Appellant-2 or He was beaten up. It is not hit by Section 24 of the Evidence Act. 102. The counsel for the appellants cited Narayane Swami v. Emperor : AIR 1939 PC 47 and State of U.P. v. Deoman Upadhyay : APR 1960 SC 1125 and submitted that : The aforesaid information is not exculpatory; It points towards the circumstances that might convict the appellant; It is hit by Sections 25 and 26 of the Evidence Act; and It should be excluded from the consideration. 103. There might be some force in submission of the counsel for the appellants, but the Supreme Court in the Padayachi case6 held otherwise. In this case the accused had made statement to the doctor in the police custody that the Deceased in that case had caused injuries to him on the night that he was killed. The question was if this statement was admissible. The Supreme Court held, ‘It is thus clear that an admission of a fact however incriminating, but not by itself establishing the guilt of the maker of such admission would not amount to confession within the meaning of Sections 24 to 26 of the Evidence Act. The question was if this statement was admissible. The Supreme Court held, ‘It is thus clear that an admission of a fact however incriminating, but not by itself establishing the guilt of the maker of such admission would not amount to confession within the meaning of Sections 24 to 26 of the Evidence Act. On the authority of these pronouncements by this Court, it is clear that the statement in question did not amount to a confession. It was an admission of a fact, no doubt of an incriminating fact, and which established the presence of the appellant in the deceased’s room but which clearly was not barred under Section 26.’ 104. Confession is an admission for committing a crime. An information that is not an admission of crime is not a confession and is admissible. The information here is not a confession; it does not admit the guilt and is admissible. However it does not make any difference even if this information is inadmissible and is not taken into account. 105. Rajesh Permanand was father of Appellant-1. Arun Kumar Lalal (PW-4) has deposed that : Appellant-2 solemnised love marriage with a girl named Seema daughter of Rajesh Permanand; Appellant-2 had gone to Orissa after marriage but came after death of his father-in-law; and He lives with in laws and some times with him; Thus Appellants-1 and 2 are brother in laws and they have connection in Orissa. 106. In deciding point-9 we have held that Appellants-2 and 3 were in constant touch and were regularly phoning each other. This conduct also shows that they are friends. 107. The Appellants were not well off and needed money : (i) Appellant-1 was working in shop of the younger brother of the Informant. (ii) Appellant-2 worked as a domestic helper with PW-4. After he came back from Orissa, he was jobless and was in need of a job. (iii) Appellant-3 was in similar position. PW-7 and 8 have deposed that he was a labourer. There is nothing to show that they were financially well off. 108. Third to fifth circumstances are proved. Sixth and Seventh Circumstance 109. These circumstances are proved while deciding points-9 and 11. We need not repeat it again. 16th AND 17th POINT : APPELLANTS GUILTY 110. This is a case of circumstantial evidence and most important aspect of this case is the call details that cannot be disputed. 108. Third to fifth circumstances are proved. Sixth and Seventh Circumstance 109. These circumstances are proved while deciding points-9 and 11. We need not repeat it again. 16th AND 17th POINT : APPELLANTS GUILTY 110. This is a case of circumstantial evidence and most important aspect of this case is the call details that cannot be disputed. In our opinion all circumstances have been proved. They show that the offence must have been committed by the accused and the evidence does not leave of any reasonable ground for their innocence. 111. It is proved that appellants-1 and 2 had kidnapped the Deceased. Two phone calls have been received by the Informant from Murad Nagar Ghaziabad and money was demanded. These call can only be done by appellants-1 and 2. These calls gave reasonable apprehension that the Deceased would be put to death and he was killed. They are guilty under Section 302 read with Section 364-A IPC. 112. Appellant-3 was making calls from Balasore, Orissa and was demanding money for release of the Deceased. He is also guilty. However the counsel for the appellants submitted that : Appellant-3 was in Orissa and had neither abducted the Deceased nor killed him; He came in the picture after the Deceased was killed; He cannot be held guilty of Section 364-A IPC; At the most, he could be guilty of cheating. 113. The relevant facts regarding Appellant-3 are as follows : The appellants-1 and 2 had kidnapped the Deceased and killed him. It was not known to the Informant and his family that the Deceased has been killed. They were given the impression that he was alive; There is nothing to show that even Appellant-3 knew about the death of the Deceased. This was in his knowledge. He should have explained it; Appellant-3 was demanding ransom from Balasore, Orissa; The Informant and his family members had reasonable apprehension that in case money was not given, the Deceased would be put to death; Appellant-3 used to ring up from Orissa and demand ransom from the Informant. 114. The aforesaid facts show that Appellant-3 was part of the crime and had common intention with the other two. He is guilty under Section 364-A IPC read with Section 34 IPC. 115. Appellant-3 was charged under Section 364-A read with 34 IPC. 114. The aforesaid facts show that Appellant-3 was part of the crime and had common intention with the other two. He is guilty under Section 364-A IPC read with Section 34 IPC. 115. Appellant-3 was charged under Section 364-A read with 34 IPC. The Court convicted him for those offences but at the time of sentencing, the trial Court has mentioned only Section 364-A IPC. This appears to be typing mistake. We convict and sentence Appellant-3 under Section 364-A read with 34 IPC. This does not cause any prejudice to him. 18th POINT : PUNISHMENT TO THE APPELLANTS 116. The trial Court has awarded death penalty to appellants-1 and 2 and life imprisonment to appellant-3 and Rs.50,000.00 as fine. It is a sad case, an eight years old boy has been done away with without there being any fault on his part. It is even unfortunate that it was done by someone known to the family and the boy. Nevertheless the case is based on circumstantial evidence. Considering the circumstances of the case, it will not be proper to accept the reference and instead to award imprisonment of life and a fine of Rs.10,000.00 with default stipulation of six months simple imprisonment to each one of the appellants. SOME SUGGESTIONS 117. In criminal cases, three different wings are important : investigation, prosecution, and judiciary. We have decided this appeal but feel that something more ought to have been done. Here, we are incorporating them as suggestions to be considered : (i) Investigation : We appreciate the fact that the prosecution team had traced the call to Orissa and had gone there and found out the person who was demanding ransom. However, this case was of kidnapping and ransom. After the first phone for ransom was received by the Informant, it would have been better that the phone should have been tapped to keep further watch on the conversation if any. This would have been an important piece of evidence in this case rather than mere deposition of the Informant. The Director General of Police may consider issuing instruction that in the cases of kidnapping and ransom, phone may be tapped so that tape recorder version of conversation may be filed in the Court. (ii) Prosecution : Six witnesses (PW-4 to 9) were not mentioned as witnesses to be examined in the police report under 173 CrPC. The Director General of Police may consider issuing instruction that in the cases of kidnapping and ransom, phone may be tapped so that tape recorder version of conversation may be filed in the Court. (ii) Prosecution : Six witnesses (PW-4 to 9) were not mentioned as witnesses to be examined in the police report under 173 CrPC. It is for this reason the statements under Section 161 CrPC were not supllied to the accused. The prosecution filed three applications for examining five witnesses. In this application also name of one of them (PW-4) was not mentioned. The objection for five of them (PW-4 to 8) were taken. The prosecuting counsel should have; Taken care that proper application alongwith offer of providing statement under Section 161 CrPC was filed; Pointed out to the trial Court to pass appropriate order when the objection were recorded. The Legal Remembrance (LR), Lucknow and Director of Prosecution, Lucknow may consider taking appropriate steps that this kind of short coming may not be repeated. (iii) Judiciary : The objections regarding non-mention of the name and non-supply of the copies of statement under Section 161 were taken at the time when the deposition of these witnesses (PW-4 to 8) were recorded. This objection is mentioned in the deposition itself. The Court has not passed any orders. As soon as objections were taken appropriate orders should have been passed on the same. In this case, we have inferred from the circumstances that no prejudice was caused and as such trial was not vitiated. Nevertheless, we spent considerable time and have spent some anxious moments in deciding this point. Had the Judge of the trial Court taken a little precaution, this could have been easily avoided. The Director Judicial Training Institute, Lucknow may emphasise this point during training of the officers so that such mistakes are not repeated. CONCLUSIONS 118. Our conclusions are as follows : (i) The recovery or tracing dead-body is not necessary before convicting a person for culpable homicide. Where the offence is sought to be proved by circumstantial evidence, then the circumstances must be proved and they should be of a clinching and definite character leading to the inference that the victim has been killed. This has been done in this case. Where the offence is sought to be proved by circumstantial evidence, then the circumstances must be proved and they should be of a clinching and definite character leading to the inference that the victim has been killed. This has been done in this case. (ii) Examining witnesses, not mentioned in the police report under Section 173 CrPC, is not such an irregularity by itself that causes any failure of justice. It is only when the defence is neither provided copies of the statements under Section 161 CrPC nor reasonable time to prepare for the cross-examination that failure of justice may be occasioned. In this case, the circumstances indicate that there was no failure of justice. (iii) Section 26 of the evidence does not bar that part of the information that is not an admission of a crime and is not a confession. (iv) The circumstances pointing towards guilt of the accused have been proved. They show that the offence must have been committed by the accused and the evidence does not leave any reasonable ground of their innocence. (v) Appellants-1 and 2 are guilty under Section 302 read with Section 364-A IPC whereas Appellant-3 is guilty under Section 364-A read with 34 IPC. However, it is not a fit case to accept the reference and award death penalty to appellants-1 and 2. It will be proper to award imprisonment of life with a fine. 119. In view of our conclusions, the reference is not accepted. The appeal against the conviction dated 11.9.2009 passed in ST No. 403 of 2005 by Additional Session Judge, Court No. 2, Ghaziabad is dismissed. However the sentence dated 16.9.2009 is altered as follows : (i) Life imprisonment to appellants-1 and 2 under Section 364-A read with Section 302 IPC and a fine of Rs.10,000.00 each. (ii) Life imprisonment to appellant No. 3 under Section 364-A read with 34, IPC and a fine of Rs. 10,000.00. The death of a son cannot be compensated in terms of money. However, considering the circumstances the case, the fine recovered may be paid to Sri Manish Joshi (the Informant) the father of Dhananjay Joshi (the Deceased) as compensation under Section 357, Cr.P.C. ————