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2022 DIGILAW 100 (CHH)

Mukesh Kumar Sahu v. State of Chhattisgarh

2022-02-22

ARVIND SINGH CHANDEL, RAJENDRA CHANDRA SINGH SAMANT

body2022
JUDGMENT : Rajendra Chandra Singh Samant, J. 1. Both the appeals have been preferred against the judgment of conviction and order of sentence dated 28.5.2013, passed by the learned Second Additional Sessions Judge, Sakti, District Janjgir-Champa, Chhattisgarh in Sessions Trial Case No. 157 of 2012, whereby and where-under the learned Second Additional Sessions Judge has convicted the appellants under Sections 302, 364-A, 201, 120-B, 386 and 148 of the Indian Penal Code (for short 'IPC') and sentenced them to undergo life imprisonment with fine of Rs.25,000/-, life imprisonment with fine of Rs.25,000/-, R.I. for 3 years with fine of Rs.1,000/-, life imprisonment with fine of Rs.10,000/-, R.I. for 7 years with fine of Rs.1,000/- and R.I. for 3 years to each of the appellants, respectively with default stipulations. 2. The case of the prosecution, in brief, is this that Dilip Sahu (deceased) went to appear for examination in Sanskar School, Jaijaipur in the morning of 19.3.2012. Dilip Sahu did not come back because of which, complainant – Phool Singh Sahu (PW-1) kept searching for him and not being successful, he lodged a missing report on 28.3.2012 (Ex. P-1). Subsequent to that, Phool Singh Sahu (PW-1) received a phone call from mobile No.9806978731 on his own mobile No. 7566815079 on 7.4.2012. The caller threatened him that if he wants to see his son alive, he will have to pay Rs.10,00,000/- as ransom. This call was repeated on 8.4.2012 and 9.4.2012. The complainant informed about this phone call in the Police Station Jaijaipur by a written complaint (Ex.P-1) on which basis, FIR (Ex.P-2) was lodged. 3. Phool Singh Sahu (PW-1) bargained with the unknown caller who agreed to take Rs.1,00,000/- as ransom. He made arrangement for Rs.1,00,000/-. On 11.4.2012, he again received a phone call from unknown person, who informed about the place for leaving the money. Phool Singh Sahu (P.W.-1) went to the place alongwith Chandrika Prasad (P.W.-3) on a motorcycle with the money. He had put his name Phool Singh on some of the currency notes for the purpose of identification. The money was left on the indicated place by him. After making payment of the money, his son did not return. Phool Singh Sahu (P.W.-1) went to the place alongwith Chandrika Prasad (P.W.-3) on a motorcycle with the money. He had put his name Phool Singh on some of the currency notes for the purpose of identification. The money was left on the indicated place by him. After making payment of the money, his son did not return. On the same day, he received a phone call from the same mobile No. 9806978731, in which a boy who was imitating the voice of his son Dilip Sahu, said that he had given trouble and harassed his father, therefore, he is going to Jammu & Kashmir and he will return after sometime. After that, Phool Singh Sahu (P.W.-1) did not receive any other call. 4. The police took up the investigation. Appellant – Chandra Shekhar @ Chhotu Chandra was apprehended and interrogated, who after making admissions about the commission of offences, made a statement for recovery of cash of Rs.12,000/-, some articles purchased by him and also about discovery of dead body and a stone in memorandum (Ex.P-3). At the instance of appellant – Chandra Shekhar, a stone having blood like stain was seized vide (Ex. P/4). According to his statement for recovery of the deadbody in his memorandum statement (Ex.P-3), the dead body of Dilip Sahu was recovered vide panchanama (Ex.P-16) from the spot. Further, at his instance, a mobile of Samsung Company, a mobile of YXTEL Company and another mobile of YXTEL Company were seized alongwith currency notes of Rs.12,000/- which were two currency notes of Rs.1,000/- and in 20 currency notes of Rs.500/-. Name of Phool Singh was found written on both the currency notes of Rs.1,000/-. Another article, a pair of shoes were also seized vide (Ex. P-19). 5. Appellant – Mukesh Kumar Sahu was interrogated and he gave a memorandum statement vide (Ex.P-7) and at the instance of appellant –Mukesh Kumar Sahu, a blood-stained stone was seized from the place indicated vide (Ex.P-8). Further, at the instance of appellant – Mukesh Sahu, seizure of currency notes of Rs.20,000/- was made, in which there were three currency notes of Rs.1,000/- and 34 currency notes of Rs.500/-. The name of Phool Singh was found written in three currency notes of Rs.500/- and the seizure was made vide (Ex.P-22). The juvenile offenders who were party to this offence were also interrogated. The name of Phool Singh was found written in three currency notes of Rs.500/- and the seizure was made vide (Ex.P-22). The juvenile offenders who were party to this offence were also interrogated. Their memorandum statements were recorded and seizure of articles were made at their instance regarding which, reference is not needed in this case. The dead-body was exhumed vide (Ex. P-13). 6. Phool Singh Sahu (PW-1) identified the dead-body as that of his son Dilip Sahu. The dead-body was subjected to postmortem examination jointly by Dr. Shyamlal Banjare (PW-9) and Dr. K.L. Urao (PW-10). On the basis of the findings in the postmortem examination, both the witnesses have opined that the deceased had excessive bleeding from the cut injury of the vein of right hand and also the injuries that were found on the vital parts of the body i.e. fracture of skull and ribs as mentioned in the report. It was reported that the death of the deceased was homicidal. The other investigative procedures were carried out, in which spot map was prepared vide (Ex.P-34) and query was made from the doctors regarding the stones seized as weapon of offence. Report (Ex.P-36) was given by Dr. Shyamlal Banjare (PW-9) and Dr. K.L. Urao (PW-10) that the stones may have been weapon of offence for causing death of the deceased. The other investigative procedures were completed. The statements of the witnesses were recorded under Section 161 of the Cr.P.C. and on completion of investigation, the charge-sheet was filed before the Court. 7. Learned trial Court framed the charges against both the appellants under Sections 302, 364-A, 201, 120-B, 386, 148, 302/149 and 364A/149 of the IPC. The appellants denied the charges and pleaded innocence. The prosecution has examined as many as 16 witnesses. On completion of the prosecution evidence, both the appellants were examined under Section 313 of the Cr.P.C., in which they denied all the incriminating evidence present against them and they again made a statement that they are innocent and they have been falsely implicated in this case. No witness was examined in the defence. Learned trial Court after giving opportunity of hearing to the prosecution and defence has delivered the impugned judgment convicting and sentencing the appellants in the manner mentioned herein-above. 8. No witness was examined in the defence. Learned trial Court after giving opportunity of hearing to the prosecution and defence has delivered the impugned judgment convicting and sentencing the appellants in the manner mentioned herein-above. 8. It is submitted by the learned counsel for the appellants in both the cases, that the conviction against the appellants is erroneous and bad in law. There is no eye-witness of this case. The prosecution against the appellants was based only on the circumstantial evidence. The complete chain of circumstances has not been proved. The FIR in this case has been lodged after a delay of 9 days, therefore, the same was not believable. The statement of the witnesses had been full of contradictions and omissions, hence the same were not trustworthy. The recovery of dead body was made about after a month from the date, since the date the deceased was went missing and body recovered was not fit to be identified. The doctor conducting autopsy Dr. Shyam Lal Banjare (P.W.-09) has made admission in the cross-examination, that the body of the deceased had been decomposed and disfigured and the face of the deceased was not recognizable, hence, the identification of this body made by Phool Singh Sahu (P.W.-1) is full of doubt and the prosecution has failed to prove the essential fact that the dead body found was that of the missing person – Dilip Sahu. The witnesses of memorandum and seizure are Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3), both are related to each other and deceased was the son of Phool Singh Sahu (P.W.-1), therefore, these witnesses have interest against the appellants, because of which, their evidence should not have been relied upon reliance for conviction of the appellants. 9. It is further submitted that Phool Singh Sahu (P.W.-1) had lodged FIR against the holder of the mobile phone No. 9806978731, but no such mobile phone have been seized from any of the appellants having the SIM number as mentioned hereinabove. 9. It is further submitted that Phool Singh Sahu (P.W.-1) had lodged FIR against the holder of the mobile phone No. 9806978731, but no such mobile phone have been seized from any of the appellants having the SIM number as mentioned hereinabove. Although some mobile phones were seized from the appellant Chandra Shekhar @ Chhotu Chandra having IMEI mentioned in the seizure memo (Ex.P-19), but the call details obtained do not confirm that the mobile phone having IMEI number seized from the appellant Chandrashekar @ Chhotu Chandra was the same in which, the SIM number 9806978731 was used to make call to the complainant for payment of ransom, hence this evidence of the prosecution is also not at all against the appellants and the same could not have been used for convicting the appellants. The other evidence on which, the learned trial Court has placed reliance is the name Phool Singh found written on some currency notes, regarding which, there is no specific evidence of Phool Singh Sahu (P.W.-1) and neither any report of handwriting expert was taken to confirm that Phool Singh’s name was written by the Phool Singh Sahu (P.W.-1) hiself. Further there is no evidence of any witness regarding last seeing the appellants and the deceased together. 10. It is further submitted that when the appellants were interrogated they were not in the custody of the police. The memorandum statement of the appellant Chandrashekar @ Chhotu Chandra was recorded on 13.04.2012 at 5.10 AM in the morning, whereas, his arrest memo shows that he was arrested on the same day at 15.05 PM. Similarly, memorandum statement of appellant Mukesh Kumar Sahu was recorded on 13.04.2012 at 5.40 AM in the morning and his arrest memo shows the time of 15.20 PM of the same date. Hence, the requirements under Section 27 of the Evidence Act that the accused has to be taken into custody for interrogation was not complied with, therefore, the non-compliance of mandatory provisions by itself vitiates the proceeding of recording of memorandum statements. Hence, under these circumstances, the appellants are entitled for benefit of doubt. It is prayed that both the appeals be allowed and the appellants be acquitted of the charges against them. 11. Hence, under these circumstances, the appellants are entitled for benefit of doubt. It is prayed that both the appeals be allowed and the appellants be acquitted of the charges against them. 11. Learned State counsel opposes the submissions made by the learned counsel for the appellants and submits that the prosecution has very clearly proved its case against the appellants beyond reasonable doubt. Witnesses of circumstances namely Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3) both are wholly reliable witness, only for the reason that they are related to each other and to the deceased, their evidence could not have been discarded. The evidence of memorandum statements given by the appellants and the recovery made on that basis are totally reliable and trustworthy. The appellants had not been able to explain circumstances against them. It was on the basis of memorandum statement (Ex.P-3) given by the appellant Chandra Shehar @ Chhotu Chandra, the dead body of the deceased was recovered. Phool Singh Sahu (P.W.-1) had identified the dead body recovered as that of his son Dilip Sahu, who has remained firm in the statement of identification throughout the cross-examination. It was the burden of the appellants to prove that Dilip Sahu son of Phool Singh Sahu (P.W.-1) was alive, but they have not brought any evidence to prove the same. It is submitted that although the SIM card bearing No.9806978731 could not be recovered and seized, but the mobile instruments were seized from the appellant Chandra Shekhar @ Chhotu Chandra having IMEI number of 15 digits. Call details obtained from the cellular network company mentions that the call made from one of the seized mobile having IMEI number as mentioned. The IMEI number of calling mobile differs only in one digit, which may be a clerical mistake, therefore, the prosecution has proved that the mobile set having IMEI number as mentioned was in possession of the appellant Chandra Shekhar @ Chhotu Chandra, which was used for making call for ransom amount. 12. It is also submitted that Phool Singh Sahu (P.W.-1) has made very clear statement, that he had put his signature on the currency notes to be given in ransom to the abductors of his son, which is unrebutted throughout in his statement and the same currency notes were seized from the possession of the appellants, which is an evidence of direct circumstance against these appellants. The appellants were required to give explanation, but they have failed to do so. The appellants have not taken any specific defence in the case except for denying the charges and denying the prosecution evidence against them. Further no evidence was lead by the appellants in their defence. Hence, the conviction against the appellants is based on reliable and trustworthy evidence, which is not liable to be interfered with. It is prayed that both the appeals be dismissed. 13. We have heard the learned counsel for both the parties at length and perused the record of the trial Court. 14. There appears to be no dispute that the deceased Dilip Sahu went missing on 19.03.2012. The statement of Phool Singh Sahu (P.W.-1) that he received a phone call from mobile number 9806978731 on his own mobile number 7566815079 on 07.04.2012, making a demand for ransom and the repeated calls made from the same mobile number on 08.04.2012 and 09.04.2012 is not specifically rebutted, neither have been specifically denied by the appellants/accused persons. The lodging of written complaint (Ex.P-1) by the Phool Singh Sahu (P.W.-1) is also not contested. The statement of Phool Singh Sahu (P.W.-1) that he bargained with unknown caller and then the unknown caller agreed to have Rs.1.00 lakh as ransom, has not been challenged in defence. Further that Phool Singh Sahu (P.W.-1) made arrangements of Rs.1.00 Lakh and after putting his signature on some of currency notes of the ransom amount, he left the same in the place designated by the unknown phone caller, from where ransom amount was taken away, is also not specifically challenged in the trial. 15. The appellant – Chandra Shekhar @ Chhotu Chandra was interrogated by the Police on 13.04.2012 at 5.10 AM, in presence of witness Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3). He made disclousere statement regarding the place, where the dead body of the deceased was to be found and also about the recovery of stone, mobile phone and other articles purchased by him along with currency notes of Rs.12,000/-. The Investigation Officer, K.R. Kaushle (P.W.-12) has proved this statement being given by appellant Chandra Shekhar @ Chhotu Chandra and his statement has been supported by Phool Singh (P.W.-1) and Chandrika Prasad (P.W.-3). The Investigation Officer, K.R. Kaushle (P.W.-12) has proved this statement being given by appellant Chandra Shekhar @ Chhotu Chandra and his statement has been supported by Phool Singh (P.W.-1) and Chandrika Prasad (P.W.-3). It was at the instance of Chandra Shekhar @ Chhotu Chandra, the dead body was recovered from the place identified by the appellant – Chandra Shekhar @ Chhotu Chandra vide Ex.P-16, which was buried in the ground. This proceeding of investigation under (Ex.P-16) have also been supported by the Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3). 16. The dead body was exhumed by the orders of the Executive Magistrate vide Ex.P-13, on its exhumation, the dead body recovered was identified by the Phool Singh Sahu (P.W.-1) as the body of his son, which is mentioned in (Ex.P-13). S.R. Sidar (P.W.-6), Executive Magistrate had conducted exhumation procedure, who has also stated that the dead body was identified by Phool Singh Sahu (P.W.-1) and others, regarding which, there is mention in Ex.P-13, which has been signed by this witness and other witnesses present. He has further clarified in his cross-examination that Phool Singh Sahu (P.W.-1) had identified the dead body on the basis of his face, clothes and the slippers. There is discrepancy regarding mention of slippers, it can be regarded as footwear, which was not the only basis of identification of the deceased by Phool Singh Sahu (P.W.-1). There is no other statement given by him, which could be regarded to consider that his statement about exhumation and identification of the deceased can be doubted in any manner. The witnesses of exhumation procedure are Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3) who have fully supported this investigation procedure. 17. Similarly by other seizure memo, the seizure of stone having blood stain vide Ex.P-4 at the instance of the appellant-Chandra Shekhar @ Chhotu Chandra, seizure of mobile phones one of which having IMEI No. 357679035404508 and the other mobile phones along with currency notes Rs.12,000/- out of which, there were two currency notes of denomination Rs.1000/- and 20 currency notes of Rs.500/- and on both the currency notes having denomination of Rs.1,000/-, the name Phool Singh Sahu was found written, were recovered at the instance of the appellant Chandra Shekhar @ Chhotu Chandra vide Ex.P-19, which has been proved by the Sub-Inspector, K.R. Kaushle (P.W.-12) and Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3). 18. 18. Mukesh Kumar Sahu was interrogated on 13.04.2012 at about 5.40 AM, who gave memorandum statement vide Ex.P-7, regarding the place, where the dead body was to be found and also regarding the articles to be recovered at his instance. Recording of this memorandum statement has been proved by the Sub-inspector K.R. Kaushle (P.W.-12) and the other witness Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3). At the instance of the appellant Mukesh Kumar Sahu, one stone having blood stain was recovered vide Ex.P-8 and further at the instance of appellant Mukesh Kumar Sahu and from his possession currency notes of Rs.20,000/- having three notes of denomination of Rs.1000/- and 34 notes of Rs.500/- were seized. On three notes of Rs.500/-, name of Phool Singh was found written. The seizure was made vide Ex.P-22. This procedure regarding memorandum statement and recovery and seizure has been proved by Sub-Inspector K.R. Kaushle (P.W.-12) as well as supported by Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3). 19. The issue raised by the learned counsel for the appellants regarding identification of dead body of the deceased needs consideration. 20. The Executive Magistrate, S.R. Sidar (P.W.-6) has conducted exhumation procedure of the dead body and he has stated that although the body was decomposed but Phool Singh Sahu (P.W.-1), father of the deceased and other witnesses identified the dead body on the basis of the face, cloths and footwear, which is a statement made by him in the cross-examination itself. This statement has been confirmed by Phool Singh Sahu (P.W.-1) in his examination-in-chief, that the dead body exhumed was that of his son and he had made identification. In the cross-examination, he has denied the adverse suggestion regarding the identification of the dead body and he has clarified that he has identified the body of his son after looking to the whole body and the face of the deceased was identifiable. There is no other statement on the basis of which, it can be regarded that his statement about identifying the dead body has been rebutted. It is to be noted that the Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3) were not strangers to the deceased and the identification of the dead body made by them had been on the basis and taking into consideration all the features of the deceased Dilip Sahu. It is to be noted that the Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3) were not strangers to the deceased and the identification of the dead body made by them had been on the basis and taking into consideration all the features of the deceased Dilip Sahu. Hence, the finding of the learned trial Court regarding the identification of the dead body appears to be correct and needs no interference. 21. The question raised on the reliability of evidence of Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3) has to be dealt with at first. 22. Deceased Dilip Sahu was son of Phool Singh Sahu (P.W.-1) and Chandrika Prasad Sahu (P.W.-3) is uncle of the deceased, who is brother-in-law of Phool Singh Sahu (P.W.-1). In case of Raju @ Balachandran & Ors. v. State of Tamilnadu, reported in AIR 2013 SC 983 , it has been held that the evidence of any related or interested witnesses can not be rejected out-rightly, it is only that the rule of caution applies. Evidence of related or interested witnesses has to be meticulously and carefully examined. In case related and interested witnesses have any enmity with the assailant, only in that circumstance, the evidence may be disbelieved. Hence, the evidence of Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3) has to be examined in the light of this observations in the case of Raju @ Balchandran (supra). 23. On careful scrutiny of evidence of Phool Singh Sahu (P.W.-1), there is his statement in cross-examination, that he saw the appellant Chandra Shekhar for the first time on 20.03.2012, there is no such suggestion given to him in cross-examination that he had any enmity with the appellants and further there is no such story in defence. Similar is the statement of Chandrika Prasad (P.W.-3). On the scrutiny of his complete deposition, it is found that there is not a single statement on the basis of which, it can be held that these witnesses had any personal interest against the appellants. Therefore, after following the rule of caution, it is found that there is no reason present to disbelieve the statement of Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3). Hence, the learned trial Court has not committed any error in placing reliance on the evidence of these two witnesses. 24. Therefore, after following the rule of caution, it is found that there is no reason present to disbelieve the statement of Phool Singh Sahu (P.W.-1) and Chandrika Prasad (P.W.-3). Hence, the learned trial Court has not committed any error in placing reliance on the evidence of these two witnesses. 24. The ground raised in appeal regarding the reliability of the evidence with respect to phone calls, needs examination. The statement of Phool Singh (P.W.-1) that he received phone call from mobile number 9806978731 on his mobile phone 7566815079 making demand of ransom has not been challenged at all in defence. The only defence raised is this that the mobile number 9806978731 did not belong to the appellant Chandra Shekhar @ Chhotu Chndra. It is true that there is no recovery of SIM having this mobile number from the possession of the appellant Chandra Shekhar @ Chhotu Chandra, however, one Samsung mobile set has been recovered, which had IMEI number 357679035404508. The call details present on record Ex.P-46 and Ex.P.-47 have not been specifically challenged by the appellants side. The IMEI number of the mobile set, which were used for making calls from SIM No. 9806978731 is shown in the calls details as 357679035404500. All the digits of the IMEI number, excepting the last digit are identical to the IMEI number of the mobile set, which was seized from the appellant Chandra Shekhar @ Chhotu Chandra. This difference in one digit was needed to be explained and clarified by the prosecution, but the same has not been done, neither any witnesses has been summoned from the telecom department to give any clarification in this respect. Difference in one digit alone makes a lot of difference and it raises doubt. Hence, the evidence in this regard that the mobile number, which was used for making some calls to the complainant Phool Singh Sahu (P.W.-1, has been seized from the appellant Chandra Shekhar @ Chhotu Chandra can not be regarded as conclusive. Hence, the finding on this point alone in the impugned judgment appears to be not proved and the same could not have been relied upon. 25. Another evidence of circumstances on which, the question has been raised by the appellants side is the identification mark of the currency notes, which was recovered from the possession of the appellants. Hence, the finding on this point alone in the impugned judgment appears to be not proved and the same could not have been relied upon. 25. Another evidence of circumstances on which, the question has been raised by the appellants side is the identification mark of the currency notes, which was recovered from the possession of the appellants. Phool Singh Sahu (P.W.-1) has stated in his examination-in-chief, that at the time of delivering the ransom amount, he had put his signature on some of the currency notes on the instruction given by the Police Officer. In cross-examination, he had denied that he had affixed his signature at the time, when the currency notes were seized from the possession of the appellants. Further there was no suggestion to challenge the signature of Phool Singh Sahu (P.W.-1) present on the currency notes. Apart from that, no other question was put to this witness for the purpose of rebutting his statement given in examination-in-chief. It is clearly mentioned in the seizure memo (Ex.P-19) from the appellant Chandra Shekhar @ Chhotu Chandra that out of currency notes, two currency notes of denomination of Rs.1000/- had the name of Phool Singh Sahu written on them. Similarly currency notes that was seized from he appellant Mukesh Kumar Sahu vide (Ex.P-22), three currency notes of denomination of Rs.500/- had name of Phool Singh had written on them. This is mentioned in these seizure memos, which corroborates the statement given by Phool Singh Sahu (P.W.-1). It was the turn of the appellants/accused person to explain as to in what manner, the currency notes seized from them had the name of the Phool Singh written on them. The case of the appellants was simple denial. They have denied the seizure of currency notes from them. Therefore, no circumstances have been brought forth by the defence to contradict the evidence of prosecution regarding identification of the currency notes, that has passed from the hands of the complainant Phool Singh Sahu (P.W.-1) and were recovered from the possession of both the appellants, which is a very strong circumstances present against both the appellants. 26. It is argued by the counsel for the appellants that the appellants were not arrested at the time they were interrogated and their statements were recorded under Section 27 of the Evidence Act. 26. It is argued by the counsel for the appellants that the appellants were not arrested at the time they were interrogated and their statements were recorded under Section 27 of the Evidence Act. Section 27 of the Evidence Act requires that the person accused has to be in custody of police officer at the time when he gives statement regarding discovery of facts and articles. The accused persons has to be in custody of police officer, when he makes the discovery statement for the purpose of making his statement admissible under Section 27 of the Indian Evidence Act. The word custody as mentioned in Section 27 of the Evidence Act does not mean a custody after formal arrest, but also includes such state of affairs, in which the accused can be said to have come into the hands of a police officer or can be said to have been under some sort of surveillance or restriction. It has been held in the case of Mt. Maharani v. Emperor, reported in AIR 1948 All 7 , in which it was held that the custody as mentioned in Section 26 or 27 of the Evidence Act does not mean formal custody. In the case of Onkar v. State of M.P., reported in 1974 CR.L.J. 1200, the M.P. High Court has held that when a person is called to the police station and is interrogated as an accused in connection with the investigation of a crime, he must be deemed to be in the custody of the police while he is so interrogated and no formal arrest is necessary. In this particular case, the appellants were either called or they themselves submitted, before the police and made statement regarding discovery of facts and articles, hence, this submission of the appellants for interrogation to the police officer is certainly to be regarded as custody, although it was not formal arrest and the formal arrest has been made later on, on the same day. Therefore, the legal point raised by the counsel for the appellants in this case regarding inadmissibility of the discovery statement made by the appellants does not hold ground. Hence, this ground raised is not sustainable. 27. After making careful scrutiny of all the evidence present in the record, we are of the view that the circumstances that have been proved by the prosecution are proved beyond reasonable doubt. Hence, this ground raised is not sustainable. 27. After making careful scrutiny of all the evidence present in the record, we are of the view that the circumstances that have been proved by the prosecution are proved beyond reasonable doubt. The first circumstances is missing of Dilip Sahu, although the call on mobile phone can not be connected with the appellants because of the failure of the prosecution to prove beyond reasonable doubt that the mobile phone used for making ransom call was in possession of these appellants. Further the culpability of the appellants is indirectly connected with the other circumstances proved, that is the currency notes, which were delivered as ransom amount were found in possession of both the appellants and juvenile offenders. 28. There had been no dispute that the cause of death of the deceased was the injuries found on his body and his death was homicidal. Another strong circumstance present against the appellants is that the dead body of the deceased was recovered at the instance of the appellant Chandra Shekhar @ Chhotu Chandra. The identification of the dead body has also been found proved. Hence, the discovery of the dead body at the instance of the appellant Chandra Shekhar @ Chhotu Chandra connects the incident directly with the death of the deceased Dilip Sahu. Hence, the chain of circumstances that has been proved are sufficient to conclude that it were the appellants and their associates, who had abducted the deceased, murdered him, and also received the ransom amount. This conclusion is also fit to be drawn that the dead body of the deceased was buried to conceal the evidence of heinous offence of murder committed by the appellants and others. 29. On the basis of the proof of circumstantial evidence against the appellants, there is nothing present to exclude the appellants from the commission of offence that have been committed in this case. It is fit to be concluded that it were the appellants, who had abducted the deceased Dilip Sahu to make demand for ransom. It were the appellants, who are directly responsible for the homicidal death of the deceased – Dilip Sahu. It were the appellants, who had buried the dead body of the deceased to conceal the commission of offence of murder. It were the appellants, who are directly responsible for the homicidal death of the deceased – Dilip Sahu. It were the appellants, who had buried the dead body of the deceased to conceal the commission of offence of murder. In the manner, the full incident was transacted by the appellants on that basis clearly the inference can be drawn, that there was meeting of minds and prior agreement, which reflects commission of offence of conspiracy. It is also concluded that it was the appellants, who had demanded ransom and extorted the complainant – Phool Singh Sahu (P.W.-1). The conviction of the appellants under Section 302, 364A, 201, 120-B, 386 of the Indian Penal Code is clearly made out. 30. According to the prosecution case, there had been juvenile offenders on whose inclusion, the number of offenders would be five, it was on that basis, the learned trial Court framed the charges under Section 302 read with Section 149 and Section 364A read with section 149 and Section 148 of the Indian Penal Code. 31. On perusal of the complete evidence present in the record of the trial Court, there appears to be no evidence present regarding participation of the juvenile offenders, therefore there is nothing to hold, the presence of unlawful assembly. Furtherance of common object for commission of offence is found proved here-in-above it can be presumed, therefore, the conviction of the appellants under Section 148 of the Indian Penal Code appears to be without any basis. However, it is a case of joint act of the appellants, therefore, Section 34 of the Indian Penal Code comes into play in such a case. 32. After considering on all the grounds raised, submissions made by the learned counsel for the both the parties and scrutiny of the evidence present on record, we are of the considered opinion that the conviction against the appellants under Section 302, 364A, 201, 120-B and 386 of the Indian Penal Code is sustainable and that can not be interfered with. Further the conviction against the appellants under Section 148 of I.P.C. is not sustainable. The conviction against the appellants under Section 148 of I.P.C. is set-aside. The conviction and sentence of the appellants in the other offences mentioned here-in-above, are upheld and hereby confirmed. 33. Accordingly both these appeals are disposed off with the observations as aforesaid.