# Piyush Gupta v. State of U.P

- **Citation:** (2022) 8 ILRA 867
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-25
- **Case number:** Criminal Appeal No. 5806 of 2006
- **Bench:** Manoj Kumar Gupta, Om Prakash Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/piyush-gupta-v-state-of-u-p-48950
- **Pages:** 26

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 364-A, 302 & 201 - The
Uttar Pradesh Dacoity Affected Areas Act,
1983 - Sections 5,26 & 27 - appeal
against conviction -where it is proved that
the accused has kidnapped or abducted
any person from dacoity affected area, it
shall be presumed, unless the contrary is
proved, that the accused has kidnapped or
abducted such person for ransom - held -
presumption arises under Section 27 that
kidnapping was done with the motive to realise
ransom - authenticity of the recoveries made
from the accused cannot be doubted, merely for
the reason that there was no public witness - to
establish reliability in the recordings - it has to
be ensured that said recording has been
preserved
and
prepared
safely
by
an
independent authority, the police and not by
any party to the case. (Para -70,76,95,97)

Case relates to gruesome and heinous crime of
kidnapping and murder of a ten years boy
(victim) - no body witnessed actual commission
of
crime
-
prosecution
case
based
on
circumstantial evidence - statement of all three
witness consistent - no material contradiction or
variation to raise suspicion - demand of ransom
-
medical
evidence
fully
corroborates
prosecution case - victim was done to death a
day prior to the arrest of the accused-appellants
- criminal revision by complainant - for
enhancement
of
sentence
of
convicted
appellants from life imprisonment to capital
punishment.(Para -2,3,23,38,58)

(B) Evidence Law - Evidentiary Value of
Confessional
Statements
-
Indian
Evidence Act, 1872 - Section 24,25,26,27 -
confession cannot be used against an
accused
person
unless
the
court
is
satisfied that it was voluntary and at that
stage, the question whether it is true or
false, does not arise - question whether a
confession is voluntary or not is always a
question of fact - held - confessional
statement of accused appellants not admissible,
being hit by Section 25 and 26 of the Evidence
Act, except the portion which led to recovery of
the dead body - No evidence to establish that
victim was killed by accused appellants to save
themselves from being identified and punished.
(Para - 43,93)

HELD:-Conviction of appellants upheld under
Section 302,364-A and 201 IPC . Punishment of
life sentence death for offences held to be just,
fair and reasonable. Instant case not to be the
rarest of rare cases so as to convert sentence of
life imprisonment to capital punishment.(Para -
98,99)

Criminal Appeals, Criminal Revision and
Government Appeal dismissed. (E-7)

List of Cases cited:-
868 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

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8 All. Piyush Gupta Vs. State of U.P.
867
----------
(2022) 8 ILRA 867
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.07.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Appeal No. 5806 of 2006
Connected with
Criminal Appeal No. 6421 of 2006
Connected with
Criminal Appeal No. 6412 of 2006
Connected with
Criminal Appeal No. 6146 of 2006
AND
Criminal Appeal No. 598 of 2021

Piyush Gupta ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Pankaj Bharti, Sri Alok Ranjan Mishra,
Sri Anand Prakash Srivastava, Ms. Beenu
Singh, Sri Noor Mohammad, Sri Satya
Dheer Singh Jadaun, Sri Ved Prakash
Pandey, Sri Vishal Agarwal, Sri Rishi
Mehrotra

Counsel for the Opposite Party:
Govt. Advocate, Sri Dileep Kumar, Sri R.K.
Srivastava, Sri S.P.S. Raghav, Sri Rajarshi
Gupta

(A) Criminal Law - Indian Penal Code,
1860 - Sections 364-A, 302 & 201 - The
Uttar Pradesh Dacoity Affected Areas Act,
1983 - Sections 5,26 & 27 - appeal
against conviction -where it is proved that
the accused has kidnapped or abducted
any person from dacoity affected area, it
shall be presumed, unless the contrary is
proved, that the accused has kidnapped or
abducted such person for ransom - held -
presumption arises under Section 27 that
kidnapping was done with the motive to realise
ransom - authenticity of the recoveries made
from the accused cannot be doubted, merely for
the reason that there was no public witness - to
establish reliability in the recordings - it has to
be ensured that said recording has been
preserved
and
prepared
safely
by
an
independent authority, the police and not by
any party to the case. (Para -70,76,95,97)

Case relates to gruesome and heinous crime of
kidnapping and murder of a ten years boy
(victim) - no body witnessed actual commission
of
crime
-
prosecution
case
based
on
circumstantial evidence - statement of all three
witness consistent - no material contradiction or
variation to raise suspicion - demand of ransom
-
medical
evidence
fully
corroborates
prosecution case - victim was done to death a
day prior to the arrest of the accused-appellants
- criminal revision by complainant - for
enhancement
of
sentence
of
convicted
appellants from life imprisonment to capital
punishment.(Para -2,3,23,38,58)

(B) Evidence Law - Evidentiary Value of
Confessional
Statements
-
Indian
Evidence Act, 1872 - Section 24,25,26,27 -
confession cannot be used against an
accused
person
unless
the
court
is
satisfied that it was voluntary and at that
stage, the question whether it is true or
false, does not arise - question whether a
confession is voluntary or not is always a
question of fact - held - confessional
statement of accused appellants not admissible,
being hit by Section 25 and 26 of the Evidence
Act, except the portion which led to recovery of
the dead body - No evidence to establish that
victim was killed by accused appellants to save
themselves from being identified and punished.
(Para - 43,93)

HELD:-Conviction of appellants upheld under
Section 302,364-A and 201 IPC . Punishment of
life sentence death for offences held to be just,
fair and reasonable. Instant case not to be the
rarest of rare cases so as to convert sentence of
life imprisonment to capital punishment.(Para -
98,99)

Criminal Appeals, Criminal Revision and
Government Appeal dismissed. (E-7)

List of Cases cited:-
868 INDIAN LAW REPORTS ALLAHABAD SERIES
1. St. of U.P. Vs Rajju & ors., (1971) 3 SCC 174,

2. Indra Dalal Vs St. of Har., (2015) 11 SCC 31

3. St. of U.P. Vs Deoman Upadhyay, 1960
Cr.L.J. 1504

4. St. of Raj. Vs Rajaram, (2003) 8 SCC 180

5. Balvinder Singh Vs St. of Punj. ,1995 Supp.
(4) SCC 259

6. Kavita Vs St. of T.N., (1998) 6 SCC 108

7. Sahadevan & anr. Vs St. of T.N., (2012) 6
SCC 403

8. St. (NCT of Delhi) Vs Navjot Sandhu @ Afsan
Guru, (2005) 11 SCC 600

9. St. of U.P. Vs Anil Singh, 1989 SCC (Cri) 48

10. Ram Swaroop Vs St. (Govt. of N.C.T. of
Delhi), (2013) 14 SCC 235

11. Yusufalli Esmail Nagree Vs St. of Maha.,
(1967) 3 SCR 720

12. R.M. Malkani Vs St. of Maha., (1973)1 SCC
471

13. Ziyauddin Burhanuddin Bukhari v. Brijmohan
Ramdass Mehra, (1976) 2 SCC 571

14. Raju Manjhi Vs St. of Bihar, (2019) 12 SCC
784

15. Shaik Ahmad Vs St. of Telangana, Criminal
Appeal No. 533 of 2021

16. Sonu @ Amar Vs St. of Haryana, 2017 (8)
SCC 570

17. Shyam Babu & Ors. Vs St. of Har., 2008
(15) SCC 418

18. Vikram Singh @ Vicky Vs U.O.I., (2015) 9
SCC 502

(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Om Prakash Tripathi, J.)

1. Appeals bearing No.5806 of 2006,
6421 of 2006 and 6412 of 2006 are by
accused persons against the judgment by
the Court of Special Judge (D.A.A.), Agra
dated 26.8.2006 convicting them under
Sections 364-A, 302, 201 IPC and
sentencing
them
to
rigorous
life
imprisonment and fine of Rs.10,000/- each
under Section 364-A IPC and same
punishment for offence under Section 302
IPC and seven years rigorous imprisonment
and fine of Rs.10,000/- each for offence
under Section 201 IPC and in case of
default in payment of fine, additional
simple imprisonment of one year for each
offence. All the sentences so awarded were
to run concurrently and default sentences
consecutively. Half of the fine was to go to
the complainant, PW-1.

2. Criminal Revision No.6146 of
2006 is by complainant for enhancement of
sentence of the convicted appellants from
life imprisonment to capital punishment.
The same prayer has been made in G.A.
No.598 of 2021. Since all these matters
relate to the same offence and involve
common questions of facts and law,
therefore, all the matters were heard
together and are being decided by this
common judgement.

3. The case relates to gruesome and
heinous crime of kidnapping and murder of
a ten years boy Gaurav Mittal (victim).

4. According to the prosecution story,
the
victim
had
gone
missing
since
19.02.2004. Initially, a missing report was
lodged by his father Rakesh Kumar Mittal
(PW-1) on 22.2.2004 at 03:30 p.m. at P.S.
MM Gate (Ext. Ka-12) stating that his son
Gaurav Mittal aged 10 years had gone from
8 All. Piyush Gupta Vs. State of U.P.
869
his house to his grandfather's house who
lived nearby at about 5:00 p.m. on
19.02.2004. After sometime, it transpired
that his son did not reach his grandfather's
house. Consequently, they made hectic
search for him. He was wearing full sleeves
green coloured bush shirt, grey coloured
pant and sleepers. His complexion is fair
and on his right eye, there is a black
coloured mark.

5. On 21.2.2004, suspecting foul play,
PW-1 got installed ID Caller on his landline number 0562-2363149. PW1 received
a ransom call on 22.2.2004 on his land-line
number. The kidnappers asked for ransom
for safe release of his son. They said that
the sum would be disclosed to him on the
following day.

6. S.S.P., Agra, looking to the
seriousness of the crime, handed over the
investigation to SOG. It was headed by
Sub-Inspector Avaneesh Dixit (PW3).

7. Second ransom call according to
PW-1 was received by him on 23.2.2004.
The kidnappers demanded Rs. 15 lakhs as
ransom money. On 24.2.2004, he again
received call from the kidnappers and
ultimately the deal was settled for a sum of
Rs. 5 lakhs. Some calls were received from
mobile number 9899580426 and some from
land-line number 22311244. On 22.2.2004
at 3:20 p.m., the missing report was
converted into first information report,
bearing Crime Case No. 29 of 2004, under
Section 364-A IPC, against unknown
persons (Ext.-14).

8. The SOG team came to know that
ransom calls were being made from Delhi.
They headed for Delhi and reached Police
Station Vivek Vihar on 25.2.2004 at 10:30
a.m. They apprised SI Atul Tyagi (PW6)
and SI Vinay Tyagi about the episode. On
investigation, it transpired that landline
number 22311244 from which ransom calls
were received, was that of a PCO at Balbir
Nagar, Shahdra, Delhi, owned by one
Sachin Chauhan and the Service Provider
was Hutch company.

9. At 11:15 a.m., they reached the
said location. They could not gather any
clue as Sachin Chauhan told the police that
it was not possible for him to remember
identity of every customer who uses PCO.

10. At about 11:20 a.m., when the
police party was returning after making
enquiry
from
Sachin
Chauhan,
SubInspector Atul Tyagi (PW6) received
information
from
mukhbir
(police
informer) that since last 2-3 days, a boy
aged 10 years was seen in company of
Piyush Gupta (C1), who lives in a room on
rent in Balbir Nagar, and his two
companions Lokesh alias Babloo (C2) and
Manoj Sharma (C3). Piyush Gupta is
introducing him as his bhanja (sister's son).
Their activities appear to be suspicious.
When the photograph of the victim was
shown to the Mukhbir, he immediately
identified him as the same child who was
seen in company of Piyush Gupta and his
friends. He also informed that they were
planning to go to Karkardooma at around
12.00 - 01.00 p.m. through Jhilmil
Industrial Area and in case timely action is
taken, they can be trapped.

11. The police party reached the
railway pulia at Pratap Khand, Shahadara at
11:50 a.m., along with the mukhbir and
PW1. At about 12:30 p.m. the mukhbir
pointed out towards three persons coming
on Rajdoot Motorcycle bearing number
DL55/6977. He identified them as Piyush
Gupta and his companions and went away.
870 INDIAN LAW REPORTS ALLAHABAD SERIES
The police succeeded in catching them. It
had to use force to control them. In the
scuffle that followed, Sub-Inspector Atul
Tyagi and Assistant Police Inspector Majid
Khan also received minor injuries. They
revealed to the police that they had
kidnapped the child for ransom on
19.2.2004 at 5:30 p.m. and they made calls
to
Rakesh
Mittal
(PW1)
demanding
ransom. The deal was struck at a sum of
Rs. 5 lakhs. As the victim knew Piyush
Gupta, being son-in-law of younger brother
of Rakesh Mittal, therefore, fearing that
their identity will get disclosed, they had
done him to death in the morning of
23.2.2004 and the dead body was burried in
a pit caused by uprooting of a tree on the
backside of Institute of Human Behaviour
and Allied Sciences, Shahadra and GTB
Hospital Shahadra. All the three were
arrested and their arrest memos were
prepared (Ext. Ka16, Ka17, KA18). The
confessional statement of the accused were
recorded separately (Ext. Ka1, Ext. Ka2,
Ext. Ka3). They admitted having abducted
and killed the victim by strangulating him
with the aid of a shoe lace and that they
continued to demand ransom money even
after Gaurav was killed.

12.

Upon
search,
the
police
succeeded in recovering a mobile SIM
Card bearing Number 9899580426 (Ext.
Ka5) and one Motorola Mobile set (Ext.
Kha1)
from
Piyush
Gupta.
In his
confessional statement, Piyush Gupta
admitted that it was the same SIM from
which they used to make ransom calls to
Rakesh Mittal over his land-line number
05622363149. On search of Manoj
Sharma, a mobile phone of Nokia makemodel
3315
bearing
IMEI
number
351479600989140 was recovered (Ext.
Ka6). Another mobile of Siemens make
was also seized (Ext. Kha3). A seizure
memo in respect of motorcycle was also
prepared (Ext.Ka-7).

13. Thereafter the police party on
pointing out of the accused went to open
ground on the backside of GTB Hospital,
where they had dumped the body of the
victim. The body was found lying in a pit
caused by uprooting of a tree. It was duly
identified by PW-1 as that of his son. The
police prepared recovery memo of dead
body (Ext.Ka-10) and inquest report (Ext.
Ka-20). While the said proceedings were
in progress, a mob assembled at the site
and it got emotionally charged on coming
to know about the incident. Despite best
efforts by the police to disperse the crowd
they attacked the accused resulting in
minor injuries to them (Injury report8A/1, 8A/2, 8A/3).

14. Information regarding recovery of
dead body was given to police station
Dilshad Garden Delhi over telephone and
whereupon S.H.O. of the said police station
Satish Sharma, Sub-Inspector Virendra and
other police personnel came to the spot.
The body was taken in possession and its
fard (Ext. Ka-10) was prepared. There was
a black shoelace tied around the neck of
Gaurav and he was wearing a white
coloured slippers. The left eye of the victim
was found damaged. The right eye and
mouth were found closed.

15. All the three accused as well as
Sub-Inspector Atul Tyagi and Majid Khan
had undergone medical examination at
S.D.N. Hospital, Shahadara at 5:00 p.m.
onwards and thereafter the accused were
brought to police station Vivek Vihar,
Delhi. On the same day, police added
Section 302, 201 IPC. On the next date, at
about 11:00 a.m., post mortem of the dead
body
(Ext.
Ka-5)
was
carried
out.
8 All. Piyush Gupta Vs. State of U.P.
871
Thereafter the police obtained transit
remand of the accused from the local court
at Delhi and brought them to Agra. On
27.04.2004, the Investigating Officer took
in his custody the audio cassette attached to
I.D. Caller from PW-1 and prepared fard
Ext. Ka-11. The Investigating Officer also
obtained CDR of the mobile phone from
which ransom calls were received (Ext. Ka29). After completing the investigation, a
charge sheet under Section 364-A, 302, 201
IPC was submitted to the concerned court
against the accused persons. The accused
denied the charges and claimed to be tried.

16. The prosecution in support of its
case examined the following witnesses:-

(1) PW-1 - Rakesh Kumar Mittal,
complainant,

(2) PW-2 - Rajendra Prasad,
neighbour of PW-1,

(3) PW-3 - Avaneesh Dixit, SOG
Incharge, Agra,

(4) PW-4- Ram Autar Singh,
Constable Clerk, P.S. M.S. Gate, Agra,

(5) PW-5 - Dr. S. Lal who carried
out post mortem,

(6) PW-6 - Atul Tyagi, SI, P.S.
Vivek Vihar, Delhi as on 25.02.2004,

(7) PW-7 - Virendra Kumar, SI,
P.S. Dilshad Garden, Delhi,

(8) PW-8 - SI Virendra Singh,
P.S. M.S. Gate, Agra, Investigating Officer,

(9) PW-9 - Chhatrapal, witness of
last seen,

(10) PW-10 - Gulshan Arora,
Nodal Officer, Hutch Company.

17. The accused did not examine
themselves. They examined one S.M.P.
Singh, retired employee of Private Security
Company as DW-1.

18. The accused were confronted with
the
incriminating
circumstances
and
evidence under Section 313 Cr.P.C. C1
admitted that he knew PW-1 and also
disclosed that he is distantly related to him,
but alleged that he was falsely implicated.
C2 Lokesh Sharma denied having known
PW-1 and alleged that he was falsely
implicated. Similar stand was taken by C3.
The Special Judge (D.A.A.), Agra after
hearing the parties and considering the
evidence
on
record
convicted
and
sentenced the accused of offences under
Sections
364-A,
302,
201
IPC
by
judgement dated 26.8.2006.

19. We have heard Sri Rishi Mehrotra
and Sri V.P. Pandey for the appellants, Sri
Rajarshi Gupta for the complainant and
learned A.G.A. Sri A.N. Mulla for the State
and perused the record.

20. Learned counsel for the accused
appellants attacked the prosecution case
and the judgement of the trial court on the
following grounds:-

(a) The prosecution case which is
based on circumstantial evidence has several
missing links in the chain of circumstances.
The mukhbir who forms the most important
link in the prosecution story was not
examined. He, according to the prosecution
story, was the last person who saw the
accused with the victim. His non-examination
is thus fatal to the prosecution case.
872 INDIAN LAW REPORTS ALLAHABAD SERIES

(b) The evidence of PW-1 was
unreliable. He was an interested witness
and he had falsely implicated the accused
appellants on account of matrimonial
discord between Pramod Agrawal, his
Buwa's son and his spouse (Preeti),
younger sister of C1.

(c)
PW-1
admits
that
the
confessional statements of accused persons
were made before the police, consequently,
the same is inadmissible being hit by
Section 25/26 of the Evidence Act.

(d) PW-1 admitted that he had
conversation with the victim on 22.02.2004
and even at that time, he did not inform
him that he was with his uncle Piyush
Gupta (C1).

(e) PW-9 Chhatrapal was a
planted witness. PW-8 admitted that he did
not inquire from the employer of PW-9
about his employment. He despite knowing
that the victim was seen in company of
accused persons on 19.02.2004, did not
inform any one about the same for almost a
month. Moreover, it was admitted by PW-9
that no TIP was done to ascertain the
identity of accused persons.

(f) According to the prosecution
case, the accused-appellants had killed the
deceased not because of non payment of
ransom money, but because of fear of being
caught and as such, ingredients of Section
364-A IPC are not made out.

21. Per contra, learned counsel for the
complainant and learned A.G.A. contended
that:-

(a) The prosecution has been
successful in leading cogent and credible
evidence
to
complete
the
chain
of
circumstances
which
conclusively
establishes the guilt of the accused persons
and also excludes role of any other person
in the crime and thus, the judgement of the
trial court requires no interference.

(b) The discovery of dead body at
the pointing out of the accused persons
from an isolated place is admissible under
Section 27 of the Indian Evidence Act and
is a crucial incriminating circumstance.

(c) The recovery of sim card as
well as mobile phone by which ransom
calls were made by the accused persons
establishes their involvement in the crime.

(d) The demand of ransom stands
corroborated by the audio recordings.

(e) The making of call by accused
persons by use of sim card and mobile
phone recovered from them matches with
the CDR and EMEI number. The same has
been duly proved by the Nodal Officer of
Hutch Company (PW-10).

(f) The evidence of last seen of
PW-9 Chhatrapal clinches the case in
favour of the prosecution. His testimony is
of
unimpeachable
character.
He
has
identified all the three accused.

(g) At the time of discovery of
dead body, the general public in a fit of
rage attacked the accused, resulting in
injuries to them. It establishes the presence
of the accused at the place from where dead
body was recovered.

(h) C1 being distantly related to
the family of PW-1 and on visiting terms,
was aware of the financial status of the
complainant. Moreover, he also had grudge
against PW-1 on account of differences
8 All. Piyush Gupta Vs. State of U.P.
873
between his younger sister and her spouse
who is related to PW-1 and whom C1
believed to be the person instrumental in
their separation.

(i) The victim was kept alive only
till the complainant's family was made to
believe that he had been kidnapped so as to
extract the ransom amount. After ensuring
that, even before ransom money was
received, he was done to death.

(j) As PW-9 knew that C1 is
related to PW-1 and was on visiting terms,
there was no incriminating circumstance in
existence on 19.02.2004 so as to alarm him
to report about his seeing the victim in the
company of the accused-appellants. As
soon as he returned from Vaishno Devi and
came to know of the murder of the victim,
he reported the matter. Consequently, short
delay after which he became part of the
investigation would be of no significance
nor in any manner raises any doubt about
the credibility of the witness.

(k) The identity of the mukhbir of
the police is generally not disclosed.
Moreover, there is other clinching evidence
which fully establishes the prosecution
case.

22. Some of the facts which are not in
dispute are as follows:-

On 22.2.2004, PW-1 lodged a
report mentioning that his son Gaurav
Mittal was missing since 19.02.2004. On
23.02.2004 the police added Section 364-A
IPC and the missing report was registered
as Crime Case No.29 of 2004 against
unknown persons. On 25.02.2004 the
police added Section 302/201 IPC. Piyush
Gupta (C1) in his statement under Section
313 Cr.P.C. admitted that he knew PW-1
Rakesh Kumar Mittal and also the fact that
he was resident of 9/409 Karigar Ki
Bageechi, Noori Darwaja, P.S., M.S. Gate,
Agra. He also admitted that he is brother in
law (Sala) of younger brother of PW-1. He
further stated that his second sister Preeti
was married to Pramod Agrawal who is son
of aunt (Buwa) of PW-1. He stated that
Pramod Agrawal used to assault his sister
physically and about which he had made
complaint to PW-1 several times. He
further stated that PW-1 was instrumental
in causing rift between his sister and her
husband and cases under Section 498-A
IPC and 125 CrPC were pending against
Pramod Agrawal. He alleged that he was
falsely implicated for the above reason. He
thus admitted close relationship between
him and PW-1. The above facts supports
the version of PW-1 and PW-9 that C1
used to visit Rakesh Kumar Mittal (PW-1)
and his family in Agra and thus had
knowledge of the status of PW-1.

23. However, no body had witnessed
the actual commission of crime and
prosecution case is based on circumstantial
evidence.

24. The first and most crucial part of
the prosecution story in the chain of events
is the evidence of last seen of the accused
persons with the victim. We, therefore, first
proceed to consider the said aspect.

Evidence of last seen

25. PW8 (Investigating Officer), in his
cross-examination stated that on 24.02.2004,
he was informed by PW-1 that certain
persons of the Mohalla were heard saying
that on 19.02.2004 victim was seen going
towards Rajamandi at about 6:00 p.m. with
certain persons. He enquired from one or two
persons of the Mohalla but their names have
874 INDIAN LAW REPORTS ALLAHABAD SERIES
not been mentioned in the case diary. He
could not get any relevant information on that
date. On 19.03.2004 he went for making
investigation to Mohalla- Karigaron Ki
Bageechi where PW1 resides. There he was
informed by certain persons that one
Chhatrapal who works with Gopal Kachcha
Petha Arhat and now with Keshav &
Company, Chitra Talkies, saw certain
persons taking the victim alongwith them at
about 5:30 p.m. towards Raja Mandi
crossing. They also informed that he
recognizes one of them. The Investigating
Officer stated that he searched for Chhatrapal
on that day but could not find him.
Ultimately, he succeeded in tracing him out
and recorded his statement on 21.03.2004 at
Keshav & Company, Chitra Talkies (place
where he works). He told the Investigating
Officer that he had seen the victim alongwith
Piyush Gupta (C1) and his two accomplices
(C2, C3) on 19.02.2004 at 5:30 p.m.

26.

Chhatrapal
about
whom
Investigating Officer has stated as above, was
examined as PW-9. In his examination-inchief, he stated that he knew PW-1 since last
3 - 31⁄2 years. PW-1 is engaged in business of
Petha. He stated that he himself works with
Keshav & Company, commission agent in
front of Chitra Talkies. He clarified that he
was working as an employee in the said
Company. He also disclosed that raw Petha
was supplied by Keshav & Company to PW1 and he used to visit his shop in connection
with realization of money for the supplies
made to PW-1. He was introduced to Piyush
Gupta (C1) by PW1. He had told him that C1
is brother-in-law of his younger brother
Pappu. He further stated that when he used to
visit the shop of PW-1, many a time, C1 was
found sitting there. On 19.02.2004 at about
5:30 p.m. when he was standing near a paan
shop (in front of Venus Studios) eating
Gutka, he saw Piyush Gupta taking the victim
alongwith him holding his finger. His two
accomplices were also there. He further
stated that he could identify those two
persons if they come before him. He admitted
that he did not know them from before. He
further stated that at that time, he had no
reason to get alarmed and, therefore, after
making his purchases, he went away.
Thereafter on 21.02.2004 he went to Vaishno
Devi for pilgrimage. He returned after 25
days. He came to Arhat (place where he
works) on 15-16.03.2004 and there he heard
from the employer Holu Keshav that son of
PW-1 has been murdered. Then he informed
that on 19.02.2004 he saw Piyush Gupta and
his two accomplices alongwith the victim
near Venus Studio. He again stated that he
can identify the two persons who were
accompanying C1. He thereafter identified
Piyush Gupta (C1), who was present in the
court. He further stated that the persons, who
were accompanying Piyush Gupta on that
day, are standing alongwith him in court. He
admitted that he did not know the names of
two other persons. He was put to lengthy
cross-examination wherein he reiterated his
version during examination-in-chief. He
denied that he had any family terms with
Rakesh Mittal (PW-1).

27. Learned counsel for the appellants
vehemently urged that PW-9 was a planted
witness. It is submitted that if PW-9 had
seen the accused persons taking away the
victim on 19.02.2004, he would have
disclosed the said fact immediately, or soon
after his kidnapping and not after more than
one month. Recording of his statement on
21.03.2004 under Section 161 CrPC with
delay of one month clearly reveals that he
was a planted witness and had made a false
deposition.

28. It is clear from the statement of
PW-9 that he was knowing C1 since last 3 -
8 All. Piyush Gupta Vs. State of U.P.
875
3 1⁄2 years. He also knew that he is brotherin-law of Pappu, younger brother of PW-1.
He thus knew about the relationship
between the victim and C1.

29. In the above backdrop, the
statement of PW-9 that on 19.02.2004
when he saw the victim accompanying C1
and his two accomplices, there was no
incriminating circumstance so as to get
alarmed, seems very natural and devoid of
any suspicion.

30. The credibility of a witness has to
be decided on fact of each case. In the
instant case, the Investigating Officer has
given specific reasons for not examining
PW-9 in the initial stages of investigation.
PW-9 himself has given valid explanation
for not reporting the matter to any one
immediately
as
there
was
nothing
suspicious in seeing the victim along with
C1. He reported the matter as soon as he
returned from pilgrimage and came to
know of the death of the victim.

31. PW-9 had no enmity with accused
persons. There is no evidence that he was
puppet witness of the police and had
deposed in any other criminal case in
favour of the prosecution. The defence had
also tried to dent his testimony by
suggesting that he was employed as a clerk
of Achal Kumar Sharma, who was one of
the Advocates for the prosecution. He had
denied having worked as clerk with Achal
Kumar Sharma, though he admitted that he
lived for some time in one kothari
belonging to him. The trial court has given
valid and convincing reasons for not
discarding the testimony of PW-9 on the
said ground and this Court fully concurs
with the same. There is no major
contradiction in the testimony of PW-9
except for some minor variation at few
places. When considered as a whole, there
is a ring of truth in his deposition and we
find no reason to discard the same.
Accordingly, the submission of learned
counsel for the appellants that PW-9 is not
reliable witness or was planted by the
prosecution does not merit acceptance.

32. Learned counsel for the appellants
submitted that the prosecution case hinges
upon the information given by the informer
to the police. However, he was not
examined
and
this
is
fatal
to
the
prosecution case.

33. A mukhbir or a police informer is
generally a person who gives lead to the
police regarding suspicious activities or
crime coming to his knowledge. Such
persons are generally paid by the police
department, when any important lead is
given by them. A police informer/mukhbir
never comes on the forefront of a crime
scene, so that the general public may not
come to know of his link with the police.
He is able to deliver results till the time his
identity is not known to general public. The
police usually does not discloses identity of
such person in trial, nor examines its
mukhbir. The examination of a police
mukhbir is never considered an important
part of criminal trial as even otherwise, no
importance would be attached to his
version. He would be labelled as a pocket
witness of the police. Moreover, as noted
above, where there was other witness
available who had witnessed the victim in
company of the accused, and his testimony
is found to be reliable and trustworthy, the
non-examination of the mukhbir does not
have any adverse impact on the prosecution
case.

34. In State of Uttar Pradesh Vs.
Rajju and others, (1971) 3 SCC 174,
876 INDIAN LAW REPORTS ALLAHABAD SERIES
similar plea regarding non-examination of
the police informer was raised, but it was
repelled by the Supreme Court disagreeing
with the contrary observations made in this
behalf by the High Court. The observation
which was made by the High Court in the
said case was as follows:-

"The informer would have been
the best person to corroborate the story as
given by Sri Siddiqi. It is correct that it is
not necessary for the police to produce the
informer, but, as mentioned above, he
would have been the best person to
corroborate the story of Sri Siddiqi."

35. The Supreme Court disapproved
the said view making the following
observations:-

"With great respect, the learned
Judge has not given any good reason for
disagreeing with the judgment of the
learned Sessions Judge. The fact that the
informer has not been produced does not
weaken the prosecution case, especially as
PW1 had recorded the information in the
general diary."

36. The next crucial circumstance in
the chain of events is the arrest of accused
and recovery of dead body of the victim on
the pointing out of the accused. We now
proceed
to
examine
whether
the
prosecution has been successful in proving
these events.
37. PW1, PW3, PW6 and PW8 are eye
witnesses of the arrest of C1, C2 and C3
and recovery of dead body of the victim.
According to the prosecution case, on
receipt of information from mukhbir about
the movements of accused, they reached a
pulia
of
a
railway
crossing,
near
Kakarduma Court at about 11:50 a.m. on
25.2.2004. The police carried out naka
bandi. At about 12:30 noon, they saw a
rajdoot motorcycle coming towards them
with three persons riding it. The mukhbir
pointing out towards them, informed the
police that they were same persons and
then went away. The police succeeded in
catching
the
accused
persons.
They
disclosed their identity to the police and
also confessed having committed the crime.
The police searched them (jama talashi)
and prepared recovery memos of goods and
articles recovered from them (Ext. Ka5,
KA6, Ext. 7).

38. They confessed before the police
about their crime. On their pointing out, the
police succeeded in recovering the dead
body of the victim. The statement of all the
three witness on the above aspect is
consistent
and
there
is
no
material
contradiction or variation so as to raise
suspicion or discard the same. We now
proceed to examine whether it stands
corroborated by other evidence on record
or not.

39. We first proceed to examine the
evidentiary value of the alleged confessions
(Ext. Ka1, Ka2, Ka3).

Evidentiary
Value
of
Confessional Statements-

40. There are three witnesses of the
confession memos. They are S.I. Atul
Tyagi (PW-6), S.I. Avaneesh Dixit (PW-3)
and Rakesh Kumar Mittal (PW-1). In their
confessional statements, the accused have
admitted having kidnapped the victim with
intention to extort a heavy amount of
ransom. They stated that after kidnapping
the victim, they brought him to Delhi and
kept him at 1/5679 Gali 18, Balbeer Nagar,
Shahadara, Delhi. They demanded ransom
money from the house at Rohtas Nagar and
8 All. Piyush Gupta Vs. State of U.P.
877
Loni Road, M.I.G. flat by using mobile
no.9899580426. Initially, they demanded
Rs.15 lakhs, but ultimately the deal was
struck at Rs.5 lakhs. In case they would
have left the victim after realising ransom,
he would have revealed their names and
consequently, they planned to kill him.
Accordingly, they took him to open ground
between G.T.B. Hospital, Shahadara and
Institute of Human Behaviour and Allied
Sciences at 10.00 a.m. on 23.02.2004 and
murdered him by strangulating him with
the use of a shoe lace. Thereafter, they
dumped his body under the roots of a tree
which had fallen. Even after killing him,
they kept demanding ransom money. Now
the police has arrested all three of them and
also recovered the mobile phone from
which ransom calls were made. They also
stated that they can help in recovery of the
dead body. In the end, they accepted their
mistake in committing the offence and
prayed for mercy.

41. Learned counsel for the appellants
vehemently urged that Ext Ka1, Ka2 and
Ka3 are inadmissible in evidence, being hit
by Section 25 and 26 of the Evidence Act.
In support of his contention, he has placed
reliance on Indra Dalal vs. State of
Haryana (2015) 11 SCC 31, wherein the
Supreme Court has held that if confessional
statement is made in presence of police
officer, it is inadmissible in evidence as per
Section 26 of the Evidence Act.

42. The Supreme Court in the case:
State of Uttar Pradesh Vs. Deoman
Upadhyay, 1960 Cr.L.J. 1504 interpreted
Section 24 to 27 of the Indian Evidence
Act, 1872 and also Section 162 of the
Criminal Procedure Code and laid down
the following propositions: -

"(a) Whether a person in custody
or outside, a confession made by him to a
police officer of the making of which is
procured by inducement, threat or promise,
having reference to the charge against him
and proceeding from a person in authority,
is not provable against him in any
proceeding in which he is charged with the
commission of an offence.

(b) A confession made by a
person whilst he is in custody of a police
officer to a person other than a police
officer is not provable in a proceeding in
which he is charged with the commission of
an offence unless it is made in the
immediate presence of a Magistrate.

(c) That part of the information
given by a person whilst in police custody,
whether the information is confessional or
otherwise, which distinctly relates to the
fact thereby discovered but no more, is
provable in a proceeding in which he is
charged with the commission of an offence.

(d) A statement, whether it
amounts to a confession or not, made by a
person when he is not in custody, to
another person, such latter person not
being a police officer may be proved if it is
otherwise relevant.

(e) A statement made by a person to
a Police Officer in the course of an
investigation of an offence under Chapter 14
of the Criminal Procedure Code cannot except
to the extent permitted by Section 27 of the
Indian Evidence Act, be used for any purpose
at any enquiry or trial in respect of any offence
under investigation at the time when the
statement was made in which he is concerned
as a person accused of an offence."
878 INDIAN LAW REPORTS ALLAHABAD SERIES

43. State of Rajasthan Vs. Rajaram
(2003) 8 SCC 180, deals in some detail the
law in relation to extra judicial confessions.
It was observed that the confession made to
the police is not admissible in view of
Section 24 of the Evidence Act. A
confession cannot be used against an
accused person unless the court is satisfied
that it was voluntary and at that stage, the
question whether it is true or false, does not
arise. If any doubt arises in relation to
voluntariness of the confession, the court
may refuse to act upon the confession even
if it is admissible in evidence. One
important question in regard to which the
court has to be satisfied with is whether
when the accused made the confession, he
was a freeman and his movements were
controlled
by
the
police
either
by
themselves or through some other agency
implied by them for the purpose of securing
such a confession. The question whether a
confession is voluntary or not is always a
question of fact. So where the statement is
a result of harassment or continuous
interrogation for several hours, such
statement
must
be
discarded,
being
involuntary.

44. In Balvinder Singh Vs. State of
Punjab [1995 Supp. (4) SCC 259], the
Supreme Court stated the principle that:-

"an extra-judicial confession, by
its very nature is rather a weak type of
evidence and requires appreciation with a
great deal of care and caution. Where an
extrajudicial confession is surrounded by
suspicious circumstances, its credibility
becomes
doubtful
and
it
loses
its
importance."

45. In Kavita Vs. State of Tamil
Nadu (1998) 6 SCC 108, the Supreme
Court held that:-

"there is no doubt that conviction
can be based on extrajudicial confession,
but it is well settled that in the very nature
of things, it is a weak piece of evidence. It
is to be proved just like any other fact and
the value thereof depends upon veracity of
the witnesses to whom it is made."

46. In a more recent judgement in
Sahadevan and another Vs. State of
Tamil Nadu (2012) 6 SCC 403, the
Supreme Court after considering large
number of previous judgemens on the point
laid down the following principles in
relation to admissibility of extra judicial
confession:-

"Upon a proper analysis of the
above-referred judgments of this Court, it
will be appropriate to state the principles
which would make an extra- judicial
confession an admissible piece of evidence
capable of forming the basis of conviction
of an accused. These precepts would guide
the judicial mind while dealing with the
veracity of cases where the prosecution
heavily relies upon an extra-judicial
confession alleged to have been made by
the accused:

(i) The extra-judicial confession
is a weak evidence by itself. It has to be
examined by the court with greater care
and caution.

(ii) It should be made voluntarily
and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession
attains greater credibility and evidentiary
value, if it is supported by a chain of cogent
circumstances and is further corroborated
by other prosecution evidence.
8 All. Piyush Gupta Vs. State of U.P.
879

(v)
For
an
extra-judicial
confession to be the basis of conviction, it
should not suffer from any material
discrepancies and inherent improbabilities.

(vi) Such statement essentially
has to be proved like any other fact and in
accordance with law."

47. Keeping the above principles in
mind, we now proceed to find out whether
the confessions made by the accused passes
the
muster
laid
down
in
various
pronouncements of the Apex Court.

48. It is noteworthy that all the
confessions though given by different
persons are almost identically worded.
Most of the portion is exactly similar. In
the instant case, the accused persons were
arrested, while they were in process of
executing their plan. It seems highly
improbable that at the said stage when they
were abruptly taken in custody, they
immediately confessed to their guilt. The
normal human behaviour is of denial. They
were not caught alongwith the victim. Two
of the witnesses were police personnel. The
third
one
is
the
complainant.
The
confession were recorded while the accused
were in police custody. The trial court
while relying on the confessions of the
accused has not considered the said aspects
at all. The trial court has altogether ignored
the fact that these statements were made to
the police while investigation was in
progress. Undoubtedly, the confessions
were hit by Sections 25 and 26 of the
Evidence Act. However, so much of the
statement as has led to discovery can be
admissible under Section 27. We therefore
proceed to examine the said aspect.

Discovery of the body of the
victim on the pointing out of C1, C2, C3 -

49.