DEATH REFERENCENo.1 OF 2010 -------------- Death reference and both the appeals are against the judgment and order dated12.1.2010 and 16.1.2010 respectively passed in Sessions Trial No. 906 of 2006/ 56 of 2009 by Additional Sessions Judge, Fast Track Court No. III, Samastipur. ------------- THE STATE OF BIHAR …… APPELLANT. Versus 1. ASHOK KUMAR RAI 2. PREMI SAHNI @ FIRANGI SAHNI 3. BHOLA KAPPAR 4. AMARJEET SAHNI SAHNI @ CHONCHAWA 5. RAM KHELAWAN SAHNI ……… RESPONDENTS. With CR. APP (DB) No.137 OF 2010 --------------- 1. BHOLA KAPAR, SON OF RAM TANUK KAPAR 2. AMARJEET SAHNI @ GHOCHWA, SON OF BACHKUN SAHNI. BOTH RESIDENTS OF VILLAGE – GUNAI BASAHI, POLICE STATION – TAJPUR, DISTRICT – SAMASTIPUR. ………. APPELLANTS Versus THE STATE OF BIHAR ……….. RESPONDENTS. With CR. APP (DB) No.150 OF 2010 ------------- 1. ASHOK RAI, SON OF RAM JAPAN RAI 2. RAM KHELAWAN SAHNI, SON OF LATE FAGUNI SAHNI 3. PREMI SAHNI @ FIRANGI SAHNI, SON OF RAM KHELAWAN SAHNI ALL RESIDENTS OF VILLAGE – HARPUR BHINDI, POLICE STATION – TAJPUR, DISTRICT – SAMASTIPUR. ……….. APPELLANTS. Versus THE STATE OF BIHAR ……….. RESPONDENT. ------------- FOR THE APPELLANTS : - MR. KANHAIYA PD. SINGH, SR. ADV. MR. GANESH PD. SINGH, ADV. MR. DR. RAJESH KUMAR, ADV. FOR THE RESPONDENT : - MR. ASHWINI KR. SINHA, APP ------------- P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE SRI JUSTICE DHARNIDHAR JHA ******************* Mridula Mishra & DharnidharJha, JJ. All five appellants, namely, Bhola Kapar and Amarjeet Sahni @ Ghochwa (Cr. Appeal No. 137 of 2 2010), Ashok Rai, Ram Khelawan Sahni and Premi Sahni @ Firangi Sahni (Cr. Appeal No. 150 of 2010) have been awarded death sentence by Additional Sessions Juddge, Fast Track Court No. III, Samastipur for their conviction under Sections 364A/34 and 302/34 of the IPC in Sessions Trial No. 906 of 2006/56 of 2009 by judgment and order dated 12.1.2010/16.1.2010. These two appeals are being heard analogous with Death Reference Case No. 01 of 2010 as the trial court on account of awarding death sentence to these appellants has made a reference before the High Court, under Section 366 of the Cr.P.C. for it’s affirmation. 2. Lakhindra Sah (PW 8), uncle of Rahul Kumar, the victim boy, is the informant of Tajpur P.S. Case No. 151 of 2006. Fard beyan of informant was recorded by the Officer-in-charge of Tajpur police station on 13.6.2006 at 11.00 p.m. at village Harpur Bhindi, wherein it stated that on 13.6.2006 the nephew of the informant, aged about 5 years had gone to play in the village but he did not return till 6.30 in the evening. The family members thereafter started searching for him and in course of this they came to know that in a pre-planned manner Ram Japan Rai and 3 Rajesh Kumar were keeping a watch on his nephew, sitting on a cot near milk centre, where Rahul had gone to play. The nephew of the informant was allured by Ashok Kumar Rai stating that he will be given fruits to eat and took him away from that place. Premi Sahni @ Firangi and Bhola Kapar gagged the boy and took him to Ekari. Pramod Sahni and Amarjeet Sahni @ Ghochwa thereafter crossed the river with the child Rahul Kumar. The informant has disclosed that all 7 accused persons, in a pre-planned manner have kidnapped his nephew Rahul for ransom. 3. On the basis of this fard beyan F.I.R. of Tajpur P.S. Case No. 151 of 2006 (Ext. 4) was instituted and the Investigating Officer (PW 10) S.I. Kunal Anand Chakravarty started investigation of the case. Further development in the prosecution case has been disclosed in the evidence of the witnesses, which indicates that on the next day, one Ram Khelawan Sahni asked the father of victim boy Rahul, that in case Rs. 1,00,000/- is paid Rahul can be released. Two persons PW 3 and PW 4 accompanied Ram Khelawan and went to village Turky in search of Rahul, but he could not be find out. Ram Khelawan, thereafter disappeared from village and after 4 two days dead body of victim was recovered from a field, with multiple injuries. The dead body could be identified from his clothes as the face was completely smashed. 4. The prosecution examined altogether 12 witnesses, out of which the solitary witness, who claimed to have seen Ashok Rai taking away the victim boy Rahul is Kismat Devi (PW 1). She is the aunt of the victim boy and mother of Manoj Sah (PW 3). Renu Devi (PW 2) is the mother of victim boy. She is not an eye witness but in her deposition she has disclosed that her son had gone for playing along with one Deepak Kumar. In the evening, Deepak came back but her son did not come back when she enquired from Deepak, he disclosed that Rahul has been taken away by Ashok Rai, giving allurement of feeding some fruits. Similar allurement was given to Deepak also, and he was asked to bring sickle (Hasua) for cutting the fruit. When Deepak had gone to bring Hasua, Rahul was taken away by Ashok Rai. Similar information was given to PW 2 by PW 1, who disclosed that when she had gone to tie her she goat, she had seen Ashok taking away Rahul. PW 2 has stated that at the time of this occurrence her husband was not present in the village. Her 5 husband came back after getting the information regarding his son’s kidnapping. PW 2 has disclosed in her deposition that Ram Khelawan had asked to pay Rs. 1,00,000/- for recovery of his son. Thereafter Manoj Sah (PW 3) and Vinod Sah (PW 4), had gone with Ram Khelawan to sasural of accused Pramod, but her son could not be found there. Ram Khelawan, thereafter disappeared from village and on 17.6.2006, dead body of her son was recovered from chaur (field). The evidence of PW 2 clearly indicates that whatever information she gathered, that was from others, like PW 1 and Deepak Kumar, who was not examined. She is a hearsay witness. 5. PW 3 Manoj Sah is the witness, who has gone with Ram Khelawan to village Turky in search of victim boy, but the boy could not be found there. PW 3 has also admitted that he came to know about taking away of victim boy Rahul, by accused persons from his mother PW 1. PW 4 Binod Kumar Sah is another person, who has claimed to have accompanied Ram Khelawan to village Turky for searching the victim boy. PW 4 has stated that Ram Khelawan had given assurance of the recovery of boy on payment of Rs.1,00,000/-. PW 4 has admitted that his 6 statement was recorded by the police after 7 to 8 days of the occurrence. Nothing important, on the point of kidnapping or killing of victim boy has been disclosed in the evidence of this witness. PW 5, another hearsay witness, has admitted that he did not see any part of the occurrence from his own eyes. Whatever he has disclosed, that is on the basis of hearsay. He has also admitted that usually he does not reside in the village, and lives at Samastipur, as such his statement was also recorded by the police at Samastipur. PW 6 Devendra Sah is the father of victim Rahul Kumar. The evidence of other witnesses, as well as own admission of PW 6 discloses that he was not present in the village on the date of occurrence. He runs his shop at Ara and on the date of occurrence he was there, doing his business. PW 7 Ram Babu Sah was declared hostile as he did not support the case of prosecution. PW 8 Lakhindra Sah is the informant. PW 8 in para 19 of his deposition has admitted that whatever he has stated in his fard beyan is on the basis of information given to him by Kismat Devi, PW 1 and he himself has not witnessed any part of occurrence. PW 8 has admitted that he has no personal knowledge of the occurrence. Informant of the 7 case is a hearsay witness. PW 9 Dr. Ashok Vardhan is one of the members of the Medical Board, conducting post mortem examination on the dead body of the deceased. PW 10 Kunal Anand Chakravarty is the I.O. of the case, who investigated the case, as fard beyan had been recorded by the Officer-in-charge of Tajpur Police Station, Sri Jaishankar Mishra, on the basis of which F.I.R. of Tajpur P.S. Case No. 151 of 2006 had been instituted under Section 364A/34 of the IPC. PW 10, in course of investigation recorded re-statement of the informant, prepared inquest report, sent the dead body for post mortem examination and recorded statement of witnesses, inspected the place of occurrence. He conducted raids at the residence of accused, who found to be absented. Accused Ashok Rai, Bhola Kapar and Premi Sahni were arrested but who arrested them that is not known to PW 10. He also submitted charge sheet. PW 11 Dilip Sah and PW 12 Makhan Sah are the hearsay witnesses, who have not deposed anything, which is relevant for proving the case of prosecution. 6. One defence witness, namely, Awadhesh Singh was also examined, who has proved FIR of Tajpur 8 P.S. Case No. 152 of 2006 along with the fard beyan. Tajpur P.S. Case No. 152 of 2006 had been instituted against Officer-in-charge of Tajpur P.S. Case No. 151 of 2006, under section 302 of the IPC, on account of custodial death of two accused persons Ram Japan Rai and Rajesh Rai, suspected accused of Tajpur P.S. Case No. 151 of 2006. 7. Mr. Kanhaiya Prasad Singh, Senior counsel appearing on behalf of the appellants has submitted that the trial court while awarding death sentence to all five appellants completely overlooked that absolutely there is no evidence against any of the accused, either with regard to their participation in the murder of the deceased or in kidnapping of the deceased. The trial court has passed the judgment of conviction solely relying on the evidence of PW 1 Kismat Devi. This witness herself has admitted in para 9 of her deposition that in fact she did not know as to who had kidnapped the victim and killed him. Whatever she has stated, is due to suspicion. All other witnesses PW 2, PW 3, PW 4, PW 5, PW 6 and PW 8 have admitted that their source of information is PW 1 and whatever they have deposed, placing reliance on the information 9 furnished to them by PW 1. Since the source of information, PW 1 herself is not confident about this fact that these accused are the persons who have kidnapped and killed the victim boy, then there is no reason for believing the evidence of any other witness, who have deposed relying on the information supplied to them by PW 1. On the basis of such fragile evidence, the trial court has awarded death sentence to all appellants, when there is no sufficient evidence to hold even their conviction. 8. Mr. Kanhaiya Prasad Singh while assailing the conviction of the appellants under Section 364A of the IPC has submitted that the evidence for conviction under this section is very weak and shaky as none of the witnesses have stated that they have seen the accused persons taking away the victim. Name of the accused persons have been disclosed by PW 1 and she is the source of information to all other witnesses. She has not disclosed the name of Bhola and Ram Khelawan in her deposition. PW 1 has also not stated about the role played by any other accused persons in kidnapping of the victim except that she has raised some suspicion against Ashok. The names of other accused persons have been disclosed in the fard beyan of 10 PW 8, the maker of the fard beyan, without disclosing the reason for suspecting their involvement. PW 8 himself has admitted that whatever he has stated in his fard beyan i.e. solely on the basis of the information furnished to him by PW 1. The question arises that from where names of other accused persons have been included but that is not disclosed in evidence of any witness. So far confessional statement of Ashok Rai, Bhola Kapar and Premi Sahni, recorded by PW 10 on 15.6.2006 is concerned, that does not disclose anything which can be considered as confessional statement leading to recovery. These accused persons were not put any question at the time of recording of their statement under Section 313 of the Cr.P.C. regarding their confessional statement. The trial court placing reliance on such evidence has convicted the accused-appellants for offence under Sections 302/34 and 364/34 of the IPC and awarded severest punishment of death to them, on the basis of such uncertain and unconvincing evidence of prosecution witnesses, the conviction and sentence cannot be sustained. 9. The counsel for the appellants has stated that the prosecution willingly has not examined relevant 11 witnesses, like, Deepak Kumar, who as per PW 2 had gone to play with the victim boy, when he was kidnapped. PW 2 has stated that Deepak had informed her that Rahul was allured by Ashok Rai stating that he will be given some fruits to eat. Deepak would have been the most important witness, as he had given such information to PW 2 and also because if he could have actually seen Ashok Rai taking away the victim boy, there was no reason for prosecution to keep on waiting for institution of FIR till recovery of the dead body. The prosecution was reluctant to examine this witness without any specific reason. 10. Besides this, counsel for the appellants has stated that trial court has committed serious error while framing charge against the accused persons under Section 364 of the IPC. The charge framed against the accused persons do not disclose the essential ingredients to make out prima facie case against accused for the offence under Section 364 of the IPC. The charge do not disclose that at the time of kidnapping there was any intention to kill for ransom and to put the victim in danger of being murdered. In support of his contention, the counsel for the appellants has placed reliance on a decision reported in 2006 Crl. L.J. 12 2494. In para 13 and 15 of the judgment there is discussion on this point. Para 15 of the judgment is relevant, which reads as follows:- “From a bare reading of this Section, it becomes luculent that it is not the demand of ransom alone, but it is when the conduct of the person who demands ransom that gives rise to a reasonable apprehension that the person for whose release the demand has been made that on failure such person may be put to death or caused hurt, that the provision is attracted.” 11. In the reported judgment one Durga Shankar, like Ram Khelawan of the present case is said to have demanded Rs.30,000/- from Vishnu Prasad, PW 5 so that child could be released. In the reported judgment also there was no evidence that Durga Shankar was acting as agent for other accused persons and he had authority on behalf of other accused persons to settle the amount for the release of the kidnapped person. 12. In the present case also PW 1 has not named Ram Khelawan. She has not stated that Ram Khelawan 13 was seen in the company of other accused persons rather she has said that when ransom was demanded, she was not present. She has heard about ransom amount being demanded by Ram Khelawan. There is no evidence on the record that Ram Khelawan at any point of time met with any of the accused or seen with the victim. PW 6 Devendra Sah, father of the kidnapped boy has not stated that at any point of time Ram Khelawan disclosed that he had any talk with any of the accused persons and they have authorized him to convey PW 6 that on payment of Rs.1,00,000/-, boy will be released. There is no evidence that any question was put to witness on this point and also that there is no disclosure in the evidence of any witness that Ram Khelawan was acting as an agent of other accused persons or he had any authority on behalf of any of the accused persons for demanding ransom for the purposes of the release of the kidnapped boy. This circumstance like demanding ransom from PW 6 was not put to Ram Khelawan, while being examined under Section 313 of the Cr.P.C. 13. On consideration of the submissions made by Sri Kanhaiya Singh, Senior counsel appearing for the 14 appellants, we find that absolutely there is no evidence to prove the participation of any of the accused persons either for their conviction under Section 302/34 of the IPC or under Section 364A/34 of the IPC. We are surprised that how the trial court was convinced that the present case is one of the rare of the rarest case in which the accused persons should be awarded the highest punishment of death sentence. 14. In view of the above reasons, the Death Reference referred by the trial court is hereby negatived. Both the appeals are allowed. The order of conviction and sentence is set aside. All the appellants are in custody on account of their death sentence. They are directed to be released forthwith, if not wanted in any other case. Patna High Court, Dated 7th September, 2010, N.A.F.R./DKS (Mridula Mishra, J.) (Dharnidhar Jha, J.)