JUDGMENT : Shree Chandrashekhar. J. Kamlesh Kumar Chobey @ Chitput, Mukesh Paswan and Gautam Giri were put on trial on the charge of kidnapping Bhawesh Kumar Mishra to compel his guardian to pay ransom. The accused were further charged under sections 302/34 and 201/34 of Indian Penal Code for committing murder and causing disappearance of dead body of Bhawesh Kumar Mishra. In the middle of trial, Gautam Giri took a plea of juvenility and by an order dated 11.06.2008 passed in Criminal Revision No.370 of 2006 trial of Gautam Giri was separated and sent to Juvenile Justice Board - by that time the prosecution had already examined six witnesses. The learned Additional Sessions Judge-V, Hazaribag convicted and sentenced Kamlesh Kumar Chobey @ Chitput and Mukesh Pas wan to R.I for life both under sections 302/34 and 364A/34 of Indian Penal Code and R.I for two years under section 201/34 of Indian Penal Code _ all the sentences were to run concurrently. 2. The convicts are in appeal under section 374(2) of Code of Criminal Procedure. 3. In the afternoon of 15.09.2004, Bhawesh Kumar Mishra left home for attending classes at Rajesh Tuition Centre, Ranchi Road but did not come back by the evening - normally he would return home by 05:30 PM. His uncle lodged a missing report with the police which was entered in the station diary and his fardbeyan was recorded by P.N. Ram, officer-in-charge of Ramgarh PS at about 08:30 PM the same evening. The informant has stated that while he was busy searching his nephew a call came at 07: 15 PM asking whether his brother Narendra Mishra was at home. The caller said that Bhawesh Kumar Mishra was kidnapped and would be released on payment of rupees five lacs, but when he asked about his identity the caller disconnected the phone. On the basis of statement of Upendra Mishra, Ramgarh PS Case No. 322 of 2004 was registered under sections 364 and 364A of Indian Penal Code against unknown. Next day, the villagers found a dead body in Nala (drain) inside the forest near IFFCO Guesthouse and then Naresh Mahto, Mahaveer Mahto and Raghunandan Mahto gave information that on 15.09.2004 while returning home from duty they had seen two-three boys talking to Bhawesh Kumar Mishra near IFFCO factory. Next day, the villagers found a dead body in Nala (drain) inside the forest near IFFCO Guesthouse and then Naresh Mahto, Mahaveer Mahto and Raghunandan Mahto gave information that on 15.09.2004 while returning home from duty they had seen two-three boys talking to Bhawesh Kumar Mishra near IFFCO factory. Kamlesh Kumar Chobey and Gautam Giri were arrested soon thereafter and they suffered disclosure statements before the police. Bhaskar Dutta, Pradeep Kumar Singh, Mahaveer Mahto and Raghunandan Mahto were present when the dead body of Bhawesh Kumar Mishra was recovered, and the bloodstained Khukhri, wooden log and earth were also seized in their presence on disclosure of Kamlesh Kumar Chobey and Gautam Giri. From the house of Kamlesh Kumar Chobey and Gautam Giri bloodstained clothes were seized and the seized articles were sent for chemical examination. In the FSL report no stain of blood was found on the clothes of Kamlesh Kumar Chobey contained in packet-E and packet-F, however, bloodstains were found on soil, wooden log and a shirt seized from the house of Gautam Giri. After their arrest, Kamlesh Kumar Chobey and Gautam Giri were brought to telephone booth from where a call was made in the evening of 15.09.2004 at the house of the informant. Sumit Chatterjee who was an employee at Surbhi S.T.D identified Kamlesh Kumar Chobey as the person who made a call at telephone no. 223374 around 07.00 PM on 15.09.2004. He took printout of the call log and gave to the Superintendent of Police who himself was monitoring the whole operation. Later, Sumit Chatterjee in presence of the Superintendent of Police identified the accused in Test Identification Parade which was held inside the jail. Dr. Binod Narayan who conducted the postmortem examination on 16.09.2004 over the dead body of Bhawesh Kumar Mishra has found one abrasion of the size of 1/2" x 1/2" over the forehead and one incised wound of the size of 3" x 2" which slashed the trachea and front blood vessels of Bhawesh Kumar Mishra. According to the doctor the injuries were caused by sharp cutting instrument, the death was caused due to hemorrhage and shock and time elapsed since death was 06 to 36 hours. With a bit delay, the statements of Sumit Chatteljee, Raghunandan Mahto, Mahaveer Mahto and Naresh Mahto were recorded under section 164 of Code of Criminal Procedure. According to the doctor the injuries were caused by sharp cutting instrument, the death was caused due to hemorrhage and shock and time elapsed since death was 06 to 36 hours. With a bit delay, the statements of Sumit Chatteljee, Raghunandan Mahto, Mahaveer Mahto and Naresh Mahto were recorded under section 164 of Code of Criminal Procedure. A charge-sheet was filed against Kamlesh Kumar Chobey and Gautam Giri on 26.11.2004. Mukesh Paswan who had absconded was arrested on 18.12.2004 and against him a supplementary charge-sheet was filed. A common charge under sections 364A/34, 302/34 and 201/34 of Indian Penal Code was framed against them vide order dated 13.09.2005 and during the trial the prosecution has examined 14 witnesses to prove charges against the accused - the informant is PWI4. 4. On identification of the appellants as the persons who had kidnapped Bhawesh Kumar Mishra for ransom and murdered him, the learned trial Judge has held as under: "27. Learned counsel for the defence further raised regarding alleged doubtful identifications of the accused persons in this case. He has contended that no one has come before this Court to say that he identified the accused persons. According to him, inquest report would not suffice to connect the accused persons with their respective identities. On the other hand, learned Addl. PP has drew the attention of the court towards the depositions of Sumit Chatterjee (PW10) who has claimed that these are the accused persons who had visited his telephone booth to make a call for demand of ransom. Superintendent of Police of the district was accompanying with the accused persons while they were brought before P W 10. I find that the depositions of PW1, PW2 and PW3 are quite clear on the point of "last seen" theory. Therefore, the testimony of PWl 0 clubbed with the depositions of PW1, PW2 and PW3 provide a clear cut picture regarding proof on the point of 'identities' of the accused persons. In other words, I don't find any serious infirmity regarding identities of the accused persons facing the trial. Learned counsel for the defence has submitted that there are so many lapses in scientific investigations of the samples referred to FSL. In other words, I don't find any serious infirmity regarding identities of the accused persons facing the trial. Learned counsel for the defence has submitted that there are so many lapses in scientific investigations of the samples referred to FSL. He contended that there was a reasonable and probable opportunity for a vested interests to maneuver the report in favour of the prosecution in the intervening period of sending the articles to FSL and their final scientific scrutiny in the laboratory. He has further contended that there is no medical or scientific evidence on the record to infer that the blood allegedly found on the chopper (Khukri) and wooden-log were that of human beings. He has further contended that there has been no D.NA test to match the samples allegedly recovered on the clothes of accused persons. He, therefore, argued that in absence of such connecting scientific investigations, the accused persons and the accused only cannot be said to have committed this murder. He contended that accused persons deserve benefit of doubts. But, I am not convinced with the arguments advanced by learned counsel for the defence. The deposition of PW12 (Assistant Director FSL) is quite clear in respect of the packet marked as 'A' & 'C'. His categorical scientific finding is that these two packets contained human blood. He has also found that blood group of particular individual is not an universal scientific phenomenon. I, therefore find that matching of blood group or any further D.NA test was not required to connect these accused persons with alleged crime. 29. The demand of ransom, search of the boy by their family members, the disclosures regarding dead body by local populace, the subsequent actions regarding arrest of the culprits, recovery of the dead body at the instance of such culprits, recovery of arm used for killing and recovery of other accessories school bag, bicycle etc. and also confession of the culprits before police clearly satisfy the test (a) enumerated above. 30. Learned counsel for the defence has drawn the attention of the Court towards the deposition of Investigating Officer (PW7) wherein the matter relating to land dispute has been mentioned with some 'known persons' 'with the family of the deceased. He, therefore, contended that it was quite possible for those 'known persons' of the locality to cause killing of the boy. Learned counsel for the defence has drawn the attention of the Court towards the deposition of Investigating Officer (PW7) wherein the matter relating to land dispute has been mentioned with some 'known persons' 'with the family of the deceased. He, therefore, contended that it was quite possible for those 'known persons' of the locality to cause killing of the boy. Therefore, it cannot be gathered that these are the accused persons and the accused only, who might have killed the deceased. According to him, it provides an occasion to think about reasonable doubts. But, 1 am not convinced with arguments advanced by learned counsel for the defence in this regard. The motive of killing, here, is quite clear; and, that is demand of ransom. The so-called probability pointed out by learned counsel for the defence is a 'remote possibility' which does not satisfy the test of res gestea. I, therefore, find there was no intervening circumstance to gather the complicity of others in the present groosome killing. In that view of the matter, the test mentioned in the head (b) is also satisfied. 31. The confessional statement of two accused persons before the police which led towards the recovery of dead body and other articles are the pointers towards the guilt of the accused persons and none others. Therefore the test (c) is also satisfied." 5. There is no witness who saw the accused kidnapping and committing murder of Bhawesh Kumar Mishra. The prosecution has produced witnesses to prove circumstances implicating the appellants in the crime. We, therefore, need to keep in mind that an inference of guilt can be justified only when all the circumstances are found incompatible with innocence of the accused. The present day law on circumstantial evidence which originated from "Reg v. Hodge" (1838) 2 Lewin 227: 168 ER 1136 is that before convicting a person on the basis of circumstantial evidence the Court must be satisfied not only that the evidence is consistent with the guilt of the person but is also inconsistent with any rational inference pointing to innocence of the accused. The Courts in India seem to adopt the tests propounded in Hodge' case in evaluating the circumstantial evidence against an accused. The Courts in India seem to adopt the tests propounded in Hodge' case in evaluating the circumstantial evidence against an accused. In one of the earliest cases, as far back as 1952, in "Hanumant Govind Nargundkar v. State of Madhya Pradesh" AIR 1952 SC 343 the Hon'ble Supreme Court has laid down that there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 6. Three employees of a factory owned by uncle of the victim boy have tendered evidence on last seen together. PW3, Naresh Mahto has stated that he was working in the factory of P.C. Jha who was uncle of Bhawesh Kumar Mishra. On 15.09.2004, he was going to market at around 03 :00-03: 15 PM to fetch jute ropes when saw Bhawesh Kumar Mishra talking to unknown boys. After the duty was over, he left for home with Mahaveer Mahto and Raghunandan Mahto around 05: 15 PM. This time also he saw Bhawesh Kumar Mishra alongwith two unknown boys, they were talking. In the cross-examination, he has stated that the boys were trying to seize the bicycle from Bhawesh Kumar Mishra but he did not suspect any foul play. Next day morning, he came to know in the factory that Bhawesh Kumar Mishra was missing since last evening and then he narrated the incident of previous evening to the father of Bhawesh Kumar Mishra. He has identified Kamlesh Kumar Chobey and Gautam Giri in the dock. PW4, Mahaveer Mahto was another employee under the uncle of Bhawesh Kumar Mishra who has deposed in the Court that on the day of occurrence at about 05:00-05:15 PM he was returning home after the duty - Naresh Mahto and Raghunandan Mahto were with him. On the way, he met Bhawesh Kumar Mishra who asked him whether he was returning home. He has further stated that the victim boy was dragged to the nearby bushes by three boys and next morning he came to know that Bhawesh Kumar Mishra was missing. On the way, he met Bhawesh Kumar Mishra who asked him whether he was returning home. He has further stated that the victim boy was dragged to the nearby bushes by three boys and next morning he came to know that Bhawesh Kumar Mishra was missing. In his cross-examination, he has stated that Bhawesh Kumar Mishra and the accused were talking near IFFCO gate, fifteen feet away, there are other colonies all around IFFCO gate and it is a thoroughfare. To a suggestion that under influence of the factory owner he has implicated the accused, he did not budge and again stated that he saw two boys talking to the victim boy near IFFCO gate and at that time the accused were holding his bicycle so he thought that they were friends. In a lengthy cross-examination, mostly suggestion only - but with reference to his statement under section 161 CrPC this witness has admitted that he stated before the police that around 05:00-05:15 PM in the evening of 15.09.2004 he had seen Bhawesh Kumar Mishra talking to two unknown boys. PW5, Raghunandan Mahto was also an employee under uncle of the victim. On 15.09.2004, on his way back home he saw Chobey Ji (refers to Kamlesh Kumar Chobey), Giri Ji (refers to Gautam Giri) and one unknown boy talking to Bhawesh Kumar Mishra. He has stated that the accused led the police to different places where Avon bicycle, knife and bloodstained clothes were concealed. He has identified the accused in the dock and said that he does not know name of the third boy - the unknown boy was Mukesh Paswan and his identification by PW5 was objected by the defence. His cross-examination reveals that at the time of seizures he was present there though his signature was not taken by the investigating officer on Seizure-memos. 7. The presence of witnesses PW3, PW4 and PW5 near IFFCO gate on 15.09.2004 was challenged on the ground that they were chance or planted witnesses. 8. The evidence of PW3, PW4 and PW5 that they saw Bhawesh Kumar Mishra in the evening of 15.09.2004 talking to unknown boys near IFFCO gate is the main plank of the prosecution to prove charges against the appellants. The statements of these witnesses were recorded by the investigating officer on 16.09.2004 and the Magistrate recorded their statements under section 164 Cr.P.C on 07.10.2004. The statements of these witnesses were recorded by the investigating officer on 16.09.2004 and the Magistrate recorded their statements under section 164 Cr.P.C on 07.10.2004. In "Mahavir Singh v. State of MP” (2016) 10 SCC 220 the Hon'ble Supreme Court has observed that evidence of a chance witness is acceptable in India yet the chance witness has to reasonably explain his presence at that particular moment. In their testimony, the prosecution witnesses have offered a reasonable and acceptable explanation and on the ground that some of them were employees under uncle of the victim their evidence cannot be doubted and discarded. The seizures were made in daytime and the witnesses have seen Bhawesh Kumar Mishra in the company of unknown boys who were later identified by them in the dock. Their evidence is not consistent on complicity of three accused, as PW3 has stated that he saw two boys talking to the victim and PW 4 would admit in the cross-examination that he said about two boys to the police whereas PW5 has involved three boys. As regards intention of the accused to be inferred from spoken words or their act these witnesses do not seem to corroborate each other. But the discrepancies in their testimony do not render them unreliable witnesses, rather excluding possibility of involvement of a third boy in the occurrence their evidence is cogent, consistent and corroborates each other. Even assuming that any indication on ill motive of the accused cannot be inferred from their evidence, nonetheless, the prosecution has proved that in the evening of 15.09.2004 the victim was with two of them and thereafter he was not seen alive. PW9, cousin brother of the victim is another witness who has claimed in the Court that the villagers informed him that around 03:30 PM they had seen Bhawesh Kumar Mishra in the company of three unknown boys, but this part of his evidence appears to be improvement by him to meet the prosecution case and we would exclude from consideration his evidence on last seen together. 9. A doubt on conduct of these witnesses may arise because they seem to suggest that they saw three unknown boys dragging Bhawesh Kumar Mishra towards bushes. 9. A doubt on conduct of these witnesses may arise because they seem to suggest that they saw three unknown boys dragging Bhawesh Kumar Mishra towards bushes. They were acquainted with Bhawesh Kumar Mishra but did not stop and intervene rather proceeded for home and the next day only when dead body of Bhawesh Kumar Mishra was found they disclosed the previous evening incident. But, as we have stated, once a part of their evidence is excluded and we take a view that there was some exaggeration in their testimony the rest part of their evidence is reliable. Moreover, there is no sets rule of natural reactions and there may not be similarity in behaviour of two persons. In 'Rana Pw'tap v. State of Haryana' (1983) 3 SCC 327 the Hon'ble Supreme Court has observed that to discard the evidence of a witness on the ground that he did not react in a particular manner is to appreciate the evidence in a wholly unrealistic and unimaginative way. Every omission or inconsistency in the evidence of a witness or a witness failing to state something before the police which do not affect substance of his testimony would not make his evidence susceptible. It is also well discussed in various judgments that exaggeration per se do not brittle the evidence. In a lengthy cross-examination by the defence these witnesses have remained firm to their grounds and their presence at a particular place and time was established. The witnesses had no malice towards the accused and no suggestion was put to them in their cross-examination for false implication of the accused. All the material prosecution witnesses were examined by the investigating officer immediately after the dead body of Bhawesh Kumar Mishra was recovered and there was no possibility of fabrication of evidence. In the circumstances, it would be a highly unreasonable approach to think that a large number of persons coming from different places were planted by the police to falsely implicate the accused in the case. The father and uncle of Bhawesh Kumar Mishra had no previous animosity with the accused and the investigating officer also had no animus towards the accused. Whether sufficient materials were produced during the trial to prove the accused guilty is yet to be examined by us, but, there is no doubt on the prosecution story that Bhawesh Kumar Mishra was abducted for ransom. 10. Whether sufficient materials were produced during the trial to prove the accused guilty is yet to be examined by us, but, there is no doubt on the prosecution story that Bhawesh Kumar Mishra was abducted for ransom. 10. Generally the circumstance of last-seen-together is considered highly incriminating and a clinching evidence provided the circumstance is proved by cogent evidence and possibility of a casual or accidental meeting of the accused with the deceased is ruled out. In "Navaneethakrishnan v. State by Inspector of Police" (2018) 16 SCC 161 the Hon'ble Supreme Court has observed that the law presumes that it is the person who was last seen with the deceased would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. There are well measured and tested norms to examine efficacy and applicability of the last seen story. A man facing the charge of murder may be a friend, personal doctor, his lawyer, co-worker or co-villager of the victim and by purely casual or accidental meeting both were seen together, but that by itself may not be sufficient to draw an inference on complicity of the accused. In "Bodhraj alias Bodha and Ors. v. State of J & K,, (2002) 8 SCC 45 the Hon'ble Supreme Court applied 'proximity test' to hold that where the time gap between the point of time when the victim was last seen alive with the accused and when he was found dead was so small that chances of any other person other than the accused committing the crime becomes remote the last seen theory become credible. This circumstance would turn incriminating if there is evidence, direct or circumstantial, establishing intention of the accused to commit the crime. Still, the accused cannot be convicted unless the prosecution establishes that the victim was last seen alive with the accused and there are other independent incriminating circumstances available on record which the accused has failed to explain satisfactorily and all taken together complete the chain of circumstances to draw a conclusive inference that the accused is guilty. 11. In "Kanhaiya Lal v. State of Rajasthan" (2014) 4 SCC 715 the Hon'ble Supreme Court has observed as under: “(12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. 11. In "Kanhaiya Lal v. State of Rajasthan" (2014) 4 SCC 715 the Hon'ble Supreme Court has observed as under: “(12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant." 12. In the present case, the prosecution story of last seen together is an incriminating circumstance because of all the prosecution witnesses, besides PW3, PW4 and PW5, atleast two of them have tendered direct evidence on complicity of two accused. 13. PW 1 has deposed in the Court that in the morning he came to know that a boy was murdered, he was son of Narendra Mishra. He came to his house and by that time the dead body was found near IFFCO Guesthouse. There the police was questioning two boys and on their pointing bloodstained Khukri was seized. The boys led the police to a place at some distance where Avon bicycle and school bag of the victim were found. The police then brought both the accused to their house. One pant and green colour half shirt were recovered from the courtyard of house of one accused and one cream coloured check shirt and dark pant concealed in the bathroom of the other accused were also seized. He has further stated that the seizure-memos were prepared on the spot in his presence and he put his signature after reading the same. He has identified Kamlesh Kumar Chobey and Gautam Giri as the boys at whose instance seizures were made by the police. In the cross-examination he has stated that the seizures were made in the forest west of Ranchi Road within a radius of five hundred meters to one kilometer. The victim was a resident of Marar Industrial Area and a large crowd of, about two hundred people had gathered there. PW2 visited the house of Narendra Mishra on hearing hul1a. He is another seizure witness who has affirmed in the Court that the seizures were made by the police in his presence on the pointing of the accused. The victim was a resident of Marar Industrial Area and a large crowd of, about two hundred people had gathered there. PW2 visited the house of Narendra Mishra on hearing hul1a. He is another seizure witness who has affirmed in the Court that the seizures were made by the police in his presence on the pointing of the accused. On the day his evidence was taken in the Court, Kamlesh Kumar Chobey, Gautam Giri and Mukesh Paswan were present in the dock and he has informed the Court that Kamlesh Kumar Chobey and Gautam Giri were the boys who were put under Hathkari (handcuff) by the police and at their instance the incriminating articles were recovered. 14. In the cross-examination of PW 1 and PW2, the defence has elicited that they had no previous acquaintances with Mishra Ji (refers to father of the victim); they were residing at Ramgarh about three kilometers away from the place of occurrence; several employees were working at the factory; there were colonies near IFFCO factory, and; the road near which the dead body, bloodstained wooden log and Khukhri were recovered was a thoroughfare. In the background of the aforesaid facts, Mr. Arwind Kumar, the learned counsel has contended that it was highly improbable that kidnapping and murder of Bhawesh Kumar Mishra would go unnoticed. 15. Since the evening of 15.09.2004 the boy was missing and his dead body was found early next morning in the forest. An inquest report was prepared at 10:00 AM in presence of Upendra Mishra, the informant, and Praveen Kumar Jha. Kamlesh Kumar Chobey and Gautam Giri were apprehended by the police and on their pointing bloodstained wooden log was recovered at 10:45 AM, bloodstained Khukhri at 12:50 PM, Avon bicycle at 01 :30 PM, and school bag at 02: 1 0 PM. The aforesaid recoveries were made from the places in close' vicinity to IFFCO factory. The house of Kamlesh Kumar Chobey and Gautam Giri was not far off and recoveries from their house were made the same day between 02:30 to 02:50 PM. The evidence of father and uncle of the deceased does not appear tainted and the other prosecution witnesses have fully supported the prosecution case. The father of Bhawesh Kumar Mishra was examined as PW11. He has stated in the Court that on 15.09.2004 he had gone to Ranchi with his brother-in-law. The evidence of father and uncle of the deceased does not appear tainted and the other prosecution witnesses have fully supported the prosecution case. The father of Bhawesh Kumar Mishra was examined as PW11. He has stated in the Court that on 15.09.2004 he had gone to Ranchi with his brother-in-law. Around 05:30 PM in the evening he came back home but by that time his son had not returned from tuition. After waiting for some time he went to Rajesh Tuition Centre and made enquiries about his son, and at the residence of his brother-in-law also did not find his son. He made enquiries from other students who were taking tuition with his son but he could not get a clue about his son, and at about 07:00-07: 15 PM a ransom call came which was attended by his younger brother Upendra Mishra. A demand of rupees five lacs was made and when Upendra Mishra made enquiry about identity of the caller the call was disconnected. PW14, the informant has stated that around 03:00 PM his nephew left home for coaching but did not come back home. On that day his brother and P.C. Jha had gone to Ranchi for some official work and by the time his brother came back home Bhawesh Kumar Mishra was not back home. The informant has narrated the incident of 15/16.09.2004 and his evidence in the Court is in tune with the prosecution story. In his cross-examination he has stated that he was residing with his brother and on 16.09.2004 he had gone to the house of Kamlesh Kumar Chobey with the police where the accused disclosed involvement of Gautam Giri and Mukesh Paswan and on pointing of Kamlesh Kumar Chobey, Avon bicycle and school bag of Bhawesh Kumar Mishra were recovered. The evidence of PW 11 and PW 14 does not indicate any effort on their part to fabricate evidence against the accused. Their testimony in the court, plain and simple, indicates that when the witnesses disclosed that Bhawesh Kumar Mishra was seen in the company of 2-3 boys the police apprehended the accused, one was Kamlesh Kumar Chobey. 16. PW7, the investigating officer received a telephonic message that the son of Narendra Mishra, a resident of industrial area, Ramgarh, was missing. Their testimony in the court, plain and simple, indicates that when the witnesses disclosed that Bhawesh Kumar Mishra was seen in the company of 2-3 boys the police apprehended the accused, one was Kamlesh Kumar Chobey. 16. PW7, the investigating officer received a telephonic message that the son of Narendra Mishra, a resident of industrial area, Ramgarh, was missing. He entered the information in station diary vide Entry No. 418 at 08: 15 PM and along with Kusum Pathak, Ram Lakhan Singh and Krishna Rai proceeded from the police station for enquiry - the superior police officers were also informed. He visited the house of Upendra Mishra and the fardbeyan of Upendra Mishra was recorded. In course of the investigation enquiries from the tutors and other students who were enrolled at Rajesh Tuition Centre were made but no worthwhile information about Bhawesh Kumar Mishra could be obtained. The father of the victim informed him that Ramesh Dom, Vikram Dom and Dharmendra Dom were raising objection in respect of a land, however, in course of the investigation he did no find their involvement in the occurrence. He has stated that about 09:00 AM next morning an information was received that a dead body was lying near IFFCO Guesthouse and around 09:30 AM he reached there, a large crowd had gathered there. An information was sent to the family of the victim and they identified the dead body. He has inspected the place of occurrence and recorded statement of the witnesses. Naresh Kumar Mahto informed him that he had seen two boys with Bhawesh Kumar Mishra the previous evening and upon this information Kamlesh Kumar Chobey was arrested at 11:00 AM and Gautam Giri was at Tested at around 12:00 noon. He has further stated that the accused confessed their involvement in the crime and they pointed the places where the incriminating articles were concealed by them. From the evidence of the investigating officer it appears that the dead body was found in a Nala (drain) adjacent to Guesthouse in the forest. He has admitted that on information of the local people the dead body was recovered, but no Test Identification Parade was conducted by him. He has denied that confessional statement of the accused was extracted by force. He has admitted that on information of the local people the dead body was recovered, but no Test Identification Parade was conducted by him. He has denied that confessional statement of the accused was extracted by force. He did not find any mark of violence at the place of occurrence and says that marks of identification were put on the seized articles at the police station. The seized articles were deposited in Malkhana, entries were made in Malkhana and the articles were produced in the Court of Chief Judicial Magistrate in sealed cover. He has further stated that there is a reference in the case diary about the document collected from S.T.D. booth but the printout was not produced in the Court. 17. The other prosecution witnesses have also tendered useful evidence. PW8 is the tutor. He has deposed in the Court that on 15.09.2004 he took tuition class till 04:45 PM and thereafter the batch was released - Bhawesh Kumar Mishra was one of the students. The same evening the guardian of Bhawesh Kumar Mishra came to him and informed that his son was kidnapped. PW9 is cousin brother of the victim. On 15.09.2004 around 06:00 PM he got a call from his maternal uncle (Upendra Mishra) enquiring about his son. Another call came at 07:30 PM the same evening and his maternal uncle told him that Bhawesh Kumar Mishra was kidnapped and the abductor was demanding ransom of rupees five lacs. On 16.09.2004, the dead body of Bhawesh Kumar Mishra was recovered from a Nala (drain) falling between the factory and Guesthouse - according to him information was given by the villagers. He has stated that the police went to the house of Kamlesh Kumar Chobey and when made enquiries from him he confessed that with the help of Gautam Giri and Mukesh Paswan he committed murder of Bhawesh Kumar Mishra with khukhri. In his presence bloodstained clothes were recovered from the house of Kamlesh Kumar Chobey and on his pointing khukhri was also recovered. This witness has further stated that he was present there when Kamlesh Kumar Chobey and Gautam Giri made disclosures that they had planned kidnapping and murder ofBhawesh Kumar Mishra. 18. Mr. Arvind Kumar, the learned counsel has contended that there are serious discrepancies in the time of arrest, recording of confessional statements and recovery of incriminating articles. This witness has further stated that he was present there when Kamlesh Kumar Chobey and Gautam Giri made disclosures that they had planned kidnapping and murder ofBhawesh Kumar Mishra. 18. Mr. Arvind Kumar, the learned counsel has contended that there are serious discrepancies in the time of arrest, recording of confessional statements and recovery of incriminating articles. The learned counsel would submit that Kamlesh Kumar Chobey was at Tested from his house at 11:00 AM on 16.09.2004 and soon thereafter Gautam Giri was also nabbed and their confessional statements were recorded but before that first recovery was already made at 10:45 AM the same day and while so the recoveries cannot be said to be pursuant to their disclosure statement. It was further contended that the recoveries were not made on disclosure of Kamlesh Kumar Chobey and Gautam Giri because in the confessional statement the accused do not say that they can show the places where wooden log, khukhri, school bag, Avon bicycle etc. were concealed and get those articles recovered. Mr. Arwind Kumar, the learned counsel has lastly contended that if the recovery evidence is excluded from consideration the last seen story is not sufficient to convict Kamlesh Kumar Chobey for kidnapping and murder. 19. Section 27 of the Evidence Act carves out a well defined exception to the ban imposed by sections 25 and 26. In respect of the information received from a person accused of any offence in the custody of a police officer which relates distinctly to discovery of a fact, section 27 provides a protective umbrella permitting the prosecution to prove so much of the information which distinctly relates to discovery of a fact. Section 27 of the Evidence Act is based on the doctrine of confirmation that if any fact is discovered in a search made on the strength of any information obtained from an accused such discovery is a guarantee that the information supplied by the prisoner was true. 20. In "Suresh Chandra Bahri v. State of Bihar, 1995 Supp (1) SCC 80 the Hon'ble Supreme Court has observed as under: "71. …. 20. In "Suresh Chandra Bahri v. State of Bihar, 1995 Supp (1) SCC 80 the Hon'ble Supreme Court has observed as under: "71. …. The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be false….” 21. Section 27 does not speak about a confession to be reduced in writing and as held in 'Bodhraj' (2002) 8 SCC 45 it is sufficient if the investigating officer deposes in the Court the contents of the confessional statement made by the accused. In "Suresh Chandra Bahri" 1995 Supp (1) 80 the prosecution case was that the recoveries were made from the place shown by the accused. The Hon'ble Supreme Court has held that it is immaterial whether confessional statement of the accused was recorded or not and the recoveries would come within the sweep of section 27 of the Evidence Act. In the present case, the discrepancies in the prosecution case are result of inexperience and negligence of the investigating officer. Once the events of 16.09.2004 are visualized without initial doubt keeping in mind that every action of the investigating officer in course of the investigation cannot be measured with mathematical precision, in our opinion, it was not possible for the investigating officer and family of Bhawesh Kumar Mishra to get the incriminating articles planted and witnesses made ready to depose against the appellants and, that too, within few hours. As regards arguments on custody of the accused, no doubt the plain language of section 27 of the Evidence Act which contains the expression 'in the custody of a police officer' gives an impression that confessional statement of the accused can be recorded after he is taken into custody, but at the same time we would indicate that the dictionary meaning of the word 'custody' is wide enough to comprehend a variety of circumstances. In interpreting a statute the most preferred choice of the Courts is literal construction but the difficulties in literal construction of different provisions of a statute prompted the Courts to adopt different interpretations of statutes. It is widely recognized that intention of the legislature, object and purpose for which a provision was incorporated and whether literal construction leads to patent absurdity are kept in mind and efforts of the Courts have always been to give effect to provisions of the statutes. In "Mohd. Arif v. State (NCT of Delhi)" (2011) 13 SCC 621 the Hon'ble Supreme Court has observed that for the accused to be in custody of the investigating agency he need not be formally arrested and it is enough if his movements were under the control of the investigating agency. It is trite that a simple touch by the police constitutes arrest and, moreover, in course of the investigation the memorandum of arrest, seizure-memo, confessional statement etc. may not be prepared in a seriatim. If these events from part of the same transaction nothing would really turn on which document was prepared first. In "Vikram Singh v. State of Punjab" (2010) 3 SCC 56 the Hon'ble Supreme Court has held that there is no need of a formal arrest for the applicability of section 27. 22. The confessional statement of Kamlesh Kumar Chobey was recorded on 16.09.2004. The witnesses have deposed in the Court that in presence of Kamlesh Kumar Chobey and Gautam Giri and on their pointing crime weapon and other incriminating materials were recovered. The investigating officer has stated in the Court that he recorded confessional statements of Kamlesh Kumar Chobey and Gautam Giri on 16.09.2004 and in their confessional statement the accused said that they had concealed Khukri, wooden log, school bag, clothes and bicycle of Gautam Giri and they took him to the places where these articles were concealed. The bloodstained Khukri was found in the forest about 30 feet from the place of occurrence, Avon bicycle was found in the forest west of kharkhari nala and a school bag was found about 300 feet north-west from the place of occurrence. The evidence of seizure witnesses does not indicate that these articles were concealed beneath the ground, however, we see no reason to discard this piece of evidence. Kamlesh Kumar Chobey never complained about his ill treatment at the hands of the police. The evidence of seizure witnesses does not indicate that these articles were concealed beneath the ground, however, we see no reason to discard this piece of evidence. Kamlesh Kumar Chobey never complained about his ill treatment at the hands of the police. At no stage before conclusion of the trial he has retracted his confessional statement and no material is available on record to infer that his confessional statement was not voluntary. In "State of H.P. v. Jeet Singh" (1999) 4 SCC 370 the Hon'ble Supreme Court has observed that recovery of the articles made from a place which is "open or accessible" to others does not make the statement of the accused inadmissible under section 27 of the Evidence Act. 23. In "Jeet Singh" (1999) 4 SCC 370 ", the Hon'ble Supreme Court has observed as under: "26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made From any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others." 24. The dead body was first seen by the local people and on information of the factory workers Kamlesh Kumar Chobey and Gautam Giri were apprehended. If it is not, then it is immaterial that the concealed place is accessible to others." 24. The dead body was first seen by the local people and on information of the factory workers Kamlesh Kumar Chobey and Gautam Giri were apprehended. The prosecution has produced truthful witnesses and quality of their evidence is such that the plea, a technical plea, raised on the basis of time of preparation of arrest memo, seizure memo and recording of confessional statement is best ignored. The prosecution has proved confessional statement of Kamlesh Kumar Chobey and recovery of the articles on his pointing. Kamlesh Kumar Chobey had exclusive Knowledge where the incriminating articles were concealed. He has failed to offer an explanation how he could know about concealing of the articles inside the forest. From the disclosure made by him, the Investigating Officer came to know that Avon bicycle and school bag of the victim were concealed in the forest and thereby discovered a new fact hitherto unknown to him. In our opinion, section 27 of the Evidence Act would come in aid to the prosecution and a part of the confessional statement of Kamlesh Kumar Chobey is usable and can be proved by the prosecution . 25. The offence under section 364A of Indian Penal Code which was amended to provide death penalty requires the prosecution to prove that (i) the accused kidnapped or abducted the person (ii) the abductee was kept under detention after such kidnapping or abduction and (iii) the kidnapping or abduction was for ransom. 26. The prosecution witnesses have seen Bhawesh Kumar Mishra in the company of 2-3 boys in the afternoon of 13.09.2004. For making a ransom call, two accused one of whom was Kamlesh Kumar Chobey had gone to Surbhi S.T.D where Sumit Chatterjee attended them. He was examined as PWIO. From his cross-examination, we gather that his presence at the telephone booth in the evening of 15.09.2004 was challenged by the defence. He has provided printout of the call record and admitted in the cross-examination that about 70-80 calls were made on that day but he cannot give any detail of the numbers at which calls were made. Kamlesh Kumar Chobey was present in the dock when he identified him as the person who had visited S.T.D booth in the evening of 15.09.2004 at about 7:00 PM and made a call. Kamlesh Kumar Chobey was present in the dock when he identified him as the person who had visited S.T.D booth in the evening of 15.09.2004 at about 7:00 PM and made a call. Kamlesh Kumar Chobey and Gautam Giri were brought to Surbhi S.T.D at around 03 :30 on 16.09.2004 and he identified one of them (Kamlesh Kumar Chobey). The statement of PW10 was recorded under section 164 CrPC and in the Court he would stick to his ground that Kamlesh Kumar Chobey made a call from Surbhi S.T.D in the evening of 15.09.2004. It appears that for further verification a Test Identification Parade was conducted in the jail in presence of the Superintendent of Police. The prosecution does not rely on identification of Kamlesh Kumar Chobey in Test Identification Parade conducted in the jail rightly so; but his identification in the Court by PW 10 is a substantive evidence which together with other evidences would establish that he was involved in the occurrence. There was some delay in recording statement of PW 10 under section 164 CrPC but before that his statement under section 161 CrPC was already recorded by the investigating officer and his evidence in the Court is in confirmity with his previous statements. The printout of call record was not tendered in evidence but PW 11 and PW 14 have deposed that a ransom call was made and others have also spoken about ransom call. From the aforesaid evidences, it can be safely inferred that ransom call was made by Kamlesh Kumar Chobey. This is not clear why Bhawesh Kumar Mishra was killed in the night of 15.09.2004 before ransom was paid, but at that moment what was going inside the mind of the accused and what prompted the accused to commit murder of Bhawesh Kumar Mishra would remain closeted in their chest and no significance can be attached to this. 27. Furthermore, the scientific evidence though does not implicate Kamlesh Kumar Chobey directly but a part of FSL report supports the prosecution case. 28. The relevant portions of F. S.L. Report are extracted below: Description of Article(s) contained in parcel 1. The earthen pot marked-A contained some earth with two pieces said to be wooden piece bearing reddish brown stains practically all Over: 2. The Packet marked-B contained one rusted khukhri with black bakelite handle said to be wooden handle. 28. The relevant portions of F. S.L. Report are extracted below: Description of Article(s) contained in parcel 1. The earthen pot marked-A contained some earth with two pieces said to be wooden piece bearing reddish brown stains practically all Over: 2. The Packet marked-B contained one rusted khukhri with black bakelite handle said to be wooden handle. The blade and handle portion of khukhri were measured about 28.5 c.m and 9.4 c.m respectively. It bore brownish stains. 3. The packet marked-c contained one cream colour dirty check full shirt bearing reddish brown stains at places. 4. The packet marked-D contained one black, dirty terycott full pants bearing brownish stains. 5. The packet marked-E contained one bluish green half T-Shirt with embroidery (booty) at places. It bore brownish stains. 6. The packet marked-F contained one light grey jeans full pants which bore brownish stains. Results of Examination 1. Blood has been detected in each of the exhibits as noted below : - (i) Exhibit marked-A-All over. (ii) Exhibit marked- C- At places. 2. Blood could not be detected in any of the exhibits marked - B, D, E and F 3. Serological report on origin etc. of blood would follow. Results of the Serological Examination Portion of stains/tissue of the exhibit (s) submitted was/were examined to ascertain 5pecies origin and blood group, using serological tests. A detailed description of the exhibit(s) is/are mentioned in the Main Report Form (No.1 G) related to Biological Examination. Following are the results: Sl. No. Exhibits marked Nature of Stains/tissue Origin Grouping Remarks Species of origin Results A B C Grouping Results Others (Particularly when origin /Grouping             not determined) 1 A Blood Human Group-A - - 2 C Blood Human Group-A - - 29. PW 12 was posted as Assistant Director at State Forensic Science Laboratory, Jharkhand. He has stated that on 11.11.2004 two samples were received but the samples could not be examined because no scientist was available at that time. He has stated that for the sake of convenience he labeled the packets 'A' to 'F'. In packet-A which contained soil and branch of plants blood was detected; no blood was found in packet-B which contained rusted khukhri; shirt which was labeled packet-C contained blood; black pant vide packet-D, green T-Shirt vide packet-E and jeans pant vide packet-F were found without any trace of blood. In packet-A which contained soil and branch of plants blood was detected; no blood was found in packet-B which contained rusted khukhri; shirt which was labeled packet-C contained blood; black pant vide packet-D, green T-Shirt vide packet-E and jeans pant vide packet-F were found without any trace of blood. Packet-A and packet-C contained human blood of group "A" and in the cross-examination PW 12 has stated that there may be several persons with blood group "A", and the parcels sent from the Court did not bear stamp of the Court. Even so, the report provides important support to the prosecution. The recovery of clothes from his house was not challenged by Kamlesh Kumar Chobey and no matter if bloodstains are not found on the clothes seized from his house vide packets 'E' and IF' his involvement in the crime is proved. He was completely silent in his examination under section 313 CrPC and that is another circumstance, an incriminating circumstance, against him which would provide an important link in the chain of circumstances. 30. However, the evidence on complicity of Mukesh Paswan in abduction and murder of Bhawesh Kumar Mishra is not sufficient for his conviction. PW3, PW4 and PW5 have deposed in the Court that in the evening of 15.09.2004 they found Bhawesh Kumar Mishra in the company of unknown boys. As noticed above, PW3 has stated about two boys but PW4 and PW5 have said that three boys were entangled with Bhawesh Kumar Mishra. In his cross-examination, PW4 has admitted that to the police he did tell about two boys only. In the confessional statement, Kamlesh Kumar Chobey and Gautam Giri have stated about a plan to kidnap Bhawesh Kumar Mishra but a reading of their statements does not indicate that on 15.09.2004 Mukesh Paswan was with them. Kamlesh Kumar Chobey has stated in the confessional statement that he discussed the plan to abduct Bhawesh Kumar Mishra for ransom with Mukesh Pas wan and according to him he was present with the other accused on 14.09.2004 when Kamlesh Kumar Chobey offered a ride to Bhawesh Kumar Mishra with intention to abduct him for ransom, but on 15.09.2004 Mukesh Paswan was not with him. The confession of a co-accused and confession made by Mukesh Pas wan himself, about three months after the occurrence, are not sufficient to hold him guilty. The confession of a co-accused and confession made by Mukesh Pas wan himself, about three months after the occurrence, are not sufficient to hold him guilty. There is no material, direct or circumstantial, to hold Mukesh Paswan guilty. The first clue about abduction and murder of Bhawesh Kumar Mishra came from the factory workers and Kamlesh Kumar Chobey succumbed to questioning by the police and told the whole story. The recoveries of incriminating articles on his disclosure establish a definite role played by him. The prosecution witnesses have exaggerated their version to rope in Mukesh Paswan and that is the reason there is some inconsistency in the evidence of PW3, PW4 and PW5, however, there is no doubt on involvement of Kamlesh Kumar Chobey in kidnapping and murder of Bhawesh Kumar Mishra. 31. In the result, Criminal Appeal (DB) No. 773 of 2012 filed by the appellant, namely, Kamlesh Kumar Chobey @ Chitput is dismissed. 32. Criminal Appeal (DB) No. 771 of 2012 against the appellant, namely, Mukesh Paswan is allowed. 33. Accordingly, the appellant, namely, Mukesh Paswan in Criminal Appeal (DB) No. 771 of 2012 who is in custody shall be released forthwith if not wanted in connection to any other case. 34. The appellant, namely, Kamlesh Kumar Chobey @ Chitput in Criminal Appeal (DB) No. 773 of 20 12 shall serve the remaining sentence. 35. Copy of the judgment shall be sent to the Court concerned for information and necessary action. 36. Let the lower Court records be sent to the Court concerned forthwith.