1 DEATH REFERANCE No.6 OF 2008 STATE OF BIHAR……………………………………………………….(Appellant) Versus CHINTOO SINGH @ VIJAY S/O JAMUNA SINGH………………..(Respondents) with CR. APP (DB) No.156 OF 2008 CHINTU SINGH @ VIJAY SINGH,S/O LATE JAMUNA SINGH R/O ANGHRAJI BAZAR SONEPUR, P.S. SONEPUR, DIST:CHAPRA (SARAN)………………………………………………………………….(Appellant) Versus STATE OF BIHAR……………………………………………………(Respondents) with CR. APP (DB) No.249 OF 2008 SANJEET KUMAR RAM @ SANJEET KUMAR DAS, S/O DUKHAN DAS, R/O VILLAGE-BARI ISUPUR, P.S.INDUSTRIAL AREA, DIST-VAISHALI AT HAJIPUR…………………………………………………………………(Appellant) Versus STATE OF BIHAR……………………………………………………(Respondents) with CR. APP (DB) No.268 OF 2008 RANJEET KUMAR RAM @ RANJEET KUMAR DAS, S/O DUKAN DAS , R/O VILLAGE-BARI ISUPUR, P.S.INDUSTRIAL AREA, DIST-VAISHALI AT HAJIPUR…………………………………………………………………(Appellant) Versus STATE OF BIHAR…………………………………………………....(Respondents) with CR. APP (DB) No.357 OF 2008 PANDIT @ SANJAY MAHTO, S/O MAHENDRA MAHTO R/O VILLAGE- SABALPUR, P.S. SONEPUR, DIST-SARAN…………………………..(Appellant) Versus STATE OF BIHAR……………………………………………….(Respondents) with CR. APP (DB) No.451 OF 2008 BIRENDRA BHAGAT,S/O MAHAVIR BHAGAT R/O VILLAGE-FAKULI, P.S. KURHARI, DIST-MUZAFFARPUR……………………………………(Appellant) Versus STATE OF BIHAR……………………………………………………(Respondents) ----------- Reference made by Sri Prem Chandra Gupta, Ist Additional District & Sessions Judge, Vaishali at Hajipur vide letter no. 18/08 dated 06.02.2008 and appeal against the judgment and order dated 28.01.2008 passed in Sessions Trial No. 422/2006. 2 ----------- For appellant ( Cr.Appeal No. 156/08):- Mr. Surendr Kumar Singh,Adv Mr. Ganesh Prasad Singh,Adv For appellant (Cr.Appeal No.249/08 & 268/08):- Mr. Kanhaiya Pd. Singh,Sr.Adv. Mr. Ashutosh Kumar, Adv. Mrs. Jyotsna, Adv. For appellant (Cr.Appeal No.357/08):- Mr. Jai Prakash Singh, Adv Mr. L.B. Singh, Adv. For appellant (Cr.Appeal No.451/08):- Mr. Rajeev Ranjan No.1 Mr. Sudhir Kumar Singh, Adv. For the State:- Mr. Lala Kailash Bihari Pd,APP --------------- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE DHARNIDHAR JHA Shiva Kirti Singh, J. The Death Reference and connected five Criminal Appeals arise out of a common judgment and order dated 24th January 2008 passed by learned First Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 422 of 2006 whereby he has convicted appellant, Chintoo Singh @ Vijay Singh and appellant, Birendra Bhagat under Section 364A of the IPC and the remaining three appellants under Section 364A read with Section 120B of the IPC and has awarded all of them rigorous imprisonment for life and fine of Rs.10,000/- each. Appellant Sanjeev Das has been acquitted of the charge under Section 302/34 and 201 of the IPC but the remaining four appellants have been convicted for the said charges also for which appellant Chintoo Singh @ Vijay Singh has been awarded death 3 sentence and the remaining three appellants have been awarded rigorous imprisonment for life and a fine of Rs. 10,000/- each. No separate sentence has been passed under Section 201 of the IPC but in default of payment of fine the concerned convict is required to undergo a further rigorous imprisonment for one year. 2. According to prosecution case, Vickey a five year old son of the informant, Sunil Kumar Singh (PW-8) was enticed away by two unknown persons on a motorcycle on 27.02.2006 at about 5:30 p.m. from near the vegetable shop of the informant at Paswan Chowk, Hajipur. A short and precise information was given by the informant to the police through written report dated 27.02.2006 (Ext-2) which disclosed that while the informant was selling vegetables in the evening hours at his shop at Paswan Chowk and his son was playing nearby, a person who came on motorcycle, gave chocolates to the boy and took him on his motorcycle. The age of the boy was five years. That person who enticed away the boy told the daughter of the informant that he would come back with the boy after returning from a washerman’s place but he did not come back till the time of information. The informant requested the police to search for the boy. On the basis of the said written report, Hajipur Town (Industrial) P.S. Case No. 105 of 2006 was instituted on 28.02.2006 at 10:15 a.m. against unknown persons. The formal FIR has been proved as Ext-13. 3. It is further case of the prosecution as disclosed by the 4 informant that in spite of search the boy was not found. After five or six days of the kidnapping appellant, Sanjay Pandit and Ranjeet told the informant that his son would come back if he paid money. Both the said appellants have vegetable shops in the neighbourhood of informant’s shop. After three months on 23.06.2006 through telephonic information at the gaddi of one Baleshwar, the informant was asked to pay Rs.4 Lacs for return of his son, Vickey. When the informant expressed his inability to pay that much, the demand was reduced to Rs.2 Lacs and the phone was disconnected. On 1st July 2006, a telephone call came at the gaddi of one Surendra and after bargain the amount was fixed at Rs. 1,05000/- . On 3rd July 2006 phone was received at STD Booth in front of vegetable shop and when the informant replied that he had arranged the money then he was asked to bring the money across the new Gandak Bridge ahead of Line hotel of Bachcha Babu at Sonepur. When the informant expressed fear in coming with the money alone then he was instructed on telephone to come with his neighbours Ranjeet and Sanjay Pandit. Informant had withdrawn Rs. 80,000/- from his saving accounts with Bank of India at Rajendra Chowk, Hajipur and had taken loan of Rs. 20,000/- from his father-in-law, Sakal Mahto and Rs.5,000/- was available with him from before in cash. He requested Sanjay Pandit and Ranjeet to accompany him to Sonepur where he had to pay the money. By chance, appellant, Sanjeet also came there and offered to go along with them for paying the money. On the next date i.e., 5 4th July 2006 at about 4 O’Clock in the morning the informant wrapped the amount of Rs. 1,05000/- in a plastic bag and kept it in a gunny bag under the carrier of his cycle. Sanjeet sat on the informant’s cycle whereas Sanjay Pandit sat on the cyle of Ranjeet. They crossed the new Gandak Bridge and reached Sonepur. Two steps ahead of Line hotel of Bachcha Babu, Sanjeet got down from informant’s cycle and went in a hut on the left side of the road. After the informant had proceeded about five steps, two persons came out and pulled away the money concealed in a gunny bag under the carrier of informant’s cycle. It appeared that those two persons already knew where the money was kept. Appellants Ranjeet and Sanjay Pandit were also standing there. On enquiry by the informant he was told by the person who had taken the money that his son would reach him by evening hours. When the informant started returning, Sanjeet came out of the hut and sat on his cycle. On informant’s enquiry Sanjeet disclosed that his sister’s husband whose name is Birendra Bhagat lives in that hut. That Birendra Bhagat was wearing blue shirt and had a light moustache, he was short and fair complexioned whereas the other person was tall and wheatish in complexion and was wearing ring in his ears. This person with ring in his ears was subsequently identified as appellant, Chintoo Singh. 4. After two days also the boy did not return and then on 3rd day the informant went to the hut where he had paid the money. He learnt from the persons in the vicinity that Birendra Bhagat is an out-sider 6 who lives in that hut which is situated on Government land. He was told that Birendra Bhagat was a criminal and the other person Chintoo is a neighbour but on that date both could not be found at their place. Thereafter, informant went to the police again. According to the prosecution case as unfolded by the Investigating Officer, Reeta Kumari, PW-12 on 16.08.2006 she again recorded the statement of the informant in which he named five accused persons and further disclosed about the demand and payment of money. He explained that because of threat to the safety of his son he did not disclose these developments earlier to the police. According to I.O. a raid was conducted at Sonepur and at the same time Ranjeet Kumar and Sanjeet Kumar were arrested. Ranjeet made a confessional statement and disclosed that the kidnapped child was kept at Kudhni in the house of Kaushalya Devi but later he was killed by Chintoo Singh by pressing the neck and by further injuries to head by a brick and the dead body was left under the culvert of road going from Bhagwanpur to Bahadur. Ranjeet further disclosed about some ransom money being kept in a note book in his room. The I.O. also obtained signature of Ranjeet on the said confessional statement (Ext-14). The I.O. arrested Sanjay Mahto @ Pandit and recorded his confessional statement (Ext-15). According to I.O., thereafter, Birendra Bhagat and Chintoo Singh ware also arrested. Their confessional statements were also recorded and have been proved as Exts. 16 and 17 respectively. Same location of dead body is in Exts. 15,16 and 17. 7 5. It is further case of the prosecution as disclosed by the I.O., PW-12 that on the basis of confessions by the aforesaid accused persons police went to Kudhni P.S. and reached Phakuli out-post. The Incharge of that Phakuli out-post, Rakesh Kumar Singh, S.I. of Police (PW- 11) gave a statement and disclosed that near the culvert of Bhagwanpur village the dead body of a boy aged about 4-5 years had been recovered for which Kudhni (Phakuli out-post) P.S. Case No. 128/06 dated 22.04.2006 under Sections 302, 201, and 34 of the IPC had been registered. Thereafter, the I.O. arrested co-accused, Kaushalya Devi (since acquitted) and placed the accused persons on Test Identification Parade after obtaining permission of the Chief Judicial Magistrate. She obtained from Phakuli O.P., the production/seizure list in relation to a vest and half pant and the informant identified the photograph of the dead body of the child as well as the clothes. According to I.O., in course of the investigation, on the confessional statement of Ranjeet, his room was searched and a currency note of Rs.500/- was seized on which name of the informant, Sunil Singh was written with a sketch pen of green colour. The said currency note has been proved as Material Ext. No.1 and the signature of the informant on that note of Rs. 500/- has been proved as Ext-6. The fardbeyan lodged by the concerned Chaukidar which is the basis of Kudhni (Phakuli out-post) P.S.Case No. 128/06 is Ext-9, the formal FIR is Ext-10. The Inquest Report of that case is Ext-8, the seizure list is Ext-11, photograph of the child is Ext-3 and the 8 production-cum-seizure list is Ext-12. 6. After completing the investigation the I.O. submitted charge-sheet under Sections 364A,302, 368 and 201 of the IPC in the court of Chief Judicial Magistrate, Vaishali against five appellants and one Kaushalya Devi, mother-in-law of appellant Birendra Bhagat. Learned Chief Judicial Magistrate, Vaishali took cognizance and committed the case to the court of sessions on 15.09.2006. The accused persons were charged under Section 364A, 120B, 302/34 and 201 of the IPC. They denied the charges and were hence put on trial. The general defence of the appellants is that they are innocent, have not committed any offence and have been falsely implicated due to enmity or business rivalry. It is the defence of accused Ranjeet Kumar that nothing was recovered from his house. The appellant Sanjeet Kumar Das has taken a further defence that on 27.02.2006 when the boy was enticed and kidnapped, he was taking examination of intermediate at Samastipur and from 2nd July to 6th July 2006 he was busy in the marriage of his Saali (wife’s sister) in a village in the district of Muzaffarpur. 7. The prosecution, in order to prove the charges examined 14 witnesses in total and exhibited a large number of documents whereas seven defence witnesses were examined on behalf of the accused persons. 8. PW-1, Rakesh Kumar Singh is a relation of the informant, he has corroborated the fact that informant’s son Vickey was enticed away by two persons on a motorcycle on 27.02.2006 and he 9 participated in the search but the boy could not be found. On other relevant and important aspects of the case, he is a hearsay witness. PW-2, Ruby Kumari is an important witness. She is daughter of the informant and sister of the victim boy, Vickey. At the time of occurrence, she was slightly less than 7 years of age and was playing near the place where Vickey was also playing with some other children. She has deposed that two persons came on a red motorcycle (splendor). The person who was wearing ring in the ears gave chocolates to all children including Vickey after purchasing the same from a shop at that place. He persuaded her also to sit on the motorcycle but she did not agree. Vickey sat on the motorcycle in the front, on tank. That man told her that he was going to washerman to bring clothes and thereafter he will drop the boy but they never came back. According to her, Ranjeet and Pandit also used to sell vegetables in the nearby shops and they used to tell her father to pay money to get the boy back. In the court, she recognized the accused persons including Chintoo Singh as a person who gave chocolate to her and to Vickey. She identified Birendra Bhagat as the person who was with Chintoo Singh at the time the boy was taken away. She claimed that she had identified Birendra Bhagat in jail also i.e., during Test Identification Parade. She has fairly admitted in cross-examination that she had learnt from her father regarding suggestion to pay money for return of the victim. Nothing material has been extracted from her cross-examination. Her claim that she recognized Chintoo Singh and he had given chocolate to 10 her and the victim boy has not been challenged in cross-examination. 9. PW-3, Sukhdeo Singh is maternal uncle of the informant. He has deposed that on the date of occurrence at about 9:00 p.m. he was at his house and the informant came and told him that his son, Vickey had been kidnapped at about 5:00 in the evening. He had been taken away on a motorcycle. He has not been cross-examined in respect of his aforesaid statement and only some formal questions were put to him. 10. PW-4, Raj Bansi Devi is a witness of search of the house of accused, Ranjeet Das and of recovery of a currency note of Rs.500/- on which name of the informant was written with green ink. She has identified that currency note as Material Ext-1. She has also identified her signature on the seizure list as Ext-1. She has identified appellant, Ranjeet & Sanjeet. In cross-examination, she has admitted that the house from-where recovery of currency note was made is inhabited by other members of the family of Ranjeet also. She has claimed that the I.O. went inside the house and opened an almirah from which the currency note of Rs.500/- was recovered from a copy. She has also admitted that she was at the entrance of the concerned room inside the house. There is nothing to discredit the claim of PW-4 that she witnessed search and seizure as claimed by her. She has not been shown to be an interested or partisan witness. 11. PW-5, Jay Kumar Singh is also only a hearsay witness about kidnapping of Vickey which was disclosed to him by the informant 11 and his wife on the date of occurrence itself. He was told that two persons on motorcycle had taken away Vickey. 12. PW-6, Neelam Devi is wife of the informant. She has claimed that at the time of occurrence at about 5:00 p.m. she along with her husband was selling vegetables in their shop. Her daughter and her son Vickey were playing nearby along with other children. After some time on enquiry she learnt from that two persons had come on a red colour motorcycle and had given chocolate to the children. She was asked to sit on the motorcycle but she expressed fear. Vickey was made to sit on the motorcycle and on her query she was told that while returning from washerman’s house with clothes, Vickey will be dropped. But her son was not brought back. In spite of search, Vickey could not be found. She had one son and one daughter only. She had undergone an operation for family planning only 15-20 days earlier. Next to her shop is the shop of Sanjay Pandit followed by shop of Ranjeet and Sanjeet. She has deposed that phone calls started coming after 8-10 days demanding 8 to 10 Lacs as extortion money. On her husband’s expressing inability to pay such amount the phone calls stopped coming. Two months later again phone call came whereupon Sanjay Pandit, Ranjeet and Sanjeet taunted that they were being guided by love for money and not for their son. Thereafter, agreement was reached on phone for payment of Rs.1,0,5000/- .Her husband went with the money at about 5:00 in the morning across the new bridge along with Sanjay Pandit, 12 Ranjeet and Sanjeet. The money was taken away but the boy was not returned. Later, it was found that the boy had been killed. She has identified appellants, Sanjay Pandit and Sanjeet. In cross-examination, it has been extracted from her that Sanjay Pandit was running his shop in the neighbourhood for about 10 years. Because there was more sale in her shop hence, others were jealous of her. She has admitted that talks on phone and demand for money was disclosed to her by her husband, the informant. She has admitted that Sanjeet has a kirana shop away from her house but has denied the suggestion that Sanjeet has been falsely implicated. Her evidence is found to be reliable and nothing has been extracted to discredit her testimony. 13. PW-7, Arvind Kumar Yadav has a shop near the place of occurrence. He has deposed that on the date of occurrence at about 6:00 in the evening one person purchased toffees for Rs.4.50 paise from his shop. He had come on a motorcycle. He gave toffees to the children who were playing in front of his shop. After some time he heard that son of the informant namely, Vickey had been kidnapped. He has claimed that Sunil, the informant runs vegetable shop at some distance towards north-east of his shop. He has been cross-examined on behalf of appellant, Birendra Bhagat, Chintoo Singh and Ranjeet but nothing has come out in such cross- examination so as to affect his testimony. 14. PW-8, Sunil Kumar Singh is the informant. His 13 evidence will be considered later. 15. PW-9, Sahdeo Singh is another maternal uncle of the informant who has, like PW-3, Sukhdeo Singh has claimed to have heard about the occurrence in the same evening from the informant and his wife. 16. PW-10, Dr. Ram Biswash Yadav has proved the postmortem report of a boy aged about 5 to 6 years at the hospital in Muzaffarpur on 22nd April, 2006. He has proved the postmortem report as Ext-8 and his signature thereupon as Ext-7. According to the doctor, there were bruises of various shapes and sizes in the anterior portion of the neck. There was bleeding from nose and mouth. One lacerated wound of size 4”x 1”x 1/2” in the left parietal region and a swelling in the right parietal region of the scalp of the size 5”x 1 ½”. On dissection of scalp the doctor found the right parietal bone and right portion of the frontal bone fractured. The right parietal, left parietal, frontal and occipital bones were found separated at sutures. The 4th and 5th cervical vertebrae were also found fractured. In the opinion of the doctor the deceased died due to haemorrhage and shock as a result of blow by heavy blunt object. Time since death was six to ten hours approximately. He has stated in cross-examination that the dead body was not decomposed, it was identifiable. Although, in cross-examination it has been obtained that the injuries on the body of the deceased might be caused in accident but it appears that unlikely in view of bruises of different shapes and sizes in the anterior portion of the neck and injuries on the left parietal 14 region as well as on the right parietal region along with fractured 4th and 5th cervical vertebrae. Such injuries from different sides of the body clearly suggest assault in a deliberate attempt to cause death. 17. PW-11, Rakesh Kumar Singh is a Sub-Inspector of Police who at the relevant time was In-charge of Phakuli O.P. under Kudhni P.S. He has deposed that on 22.04.2006 body of a dead boy was recovered from under a culvert on the road going from Bhagwanpur to Bahadurpur. He lodged Kudhni P.S. Case No.128/06 on the statement of Chaukidar, Bharat Rai. He has proved the Fardbeyan as Ext-9 and the formal FIR as Ext-10. He has deposed that he took up investigation of that case and prepared inquest report (Ext-8). He recorded statement of witnesses and obtained post-mortem report. He recovered an old striped towel having blood marks from the place where the dead body was found. He prepared seizure list for the same which has been marked as Ext-11. He got the dead body of the deceased boy photographed. He has proved the photograph which has been marked as Ext-3. He has further deposed that on account of an accident he went on leave and on joining his duties on 15.11.2006, he was informed by Surya Narayan Yadav that Sub-Inspector, Reeta Kumari of Hajipur Town (Industrial) P.S. and Sunil, father of the deceased boy had come and the dead body was identified with the help of photograph and that a case for kidnapping of the dead boy had been lodged by father of the deceased in the Hajipur (Industrial) P.S. as case No. 105/2006. On that basis this witness 15 prepared a production-cum-seizure list of the seized clothes and photograph which has been marked as Ext-12. He has also deposed that on the date of recovery the dead body was not decomposed. Nothing material has been extracted in cross-examination of this witness. The evidence of Investigating Officer, S.I. Reeta Kumari, PW-12 shall be considered later. 18. PW-13, Sandeep Mishra is a Judicial Magistrate who while posted at Hajipur recorded the statement of PW-2, Kumari and PW-8, Sunil (informant) under Section 164 Cr.P.C. on 18.08.2006 in connection with Hajipur (Industrial) Town P.S. Case No.105/06. Statement of PW-2 has been marked as Ext-19 and that of PW-8 as Ext-20. 19. PW-14, Dilip Kumar Singh is another Judicial Magistrate, 1st Class who was posted at Hajipur on 23.08.2006 when he conducted TIP of accused persons in the Hajipur Divisional Jail in connection with present case. In the TIP PW-8 and PW-2 participated as witnesses and Birendra Bhagat and Chintoo Singh were amongst suspects. PW-2, Kumari identified Birendra Bhagat as the person who was driving the motorcycle and PW-8, the informant identified both the suspects who had extorted money. The TIP chart has been exhibited as Ext-21. Both the witnesses are formal and nothing material has come in their cross- examination. 20. Coming to the deposition of the informant, Sunil Kumar Singh, PW-8, it is clear that he has not claimed to be a witness of the 16 actual occurrence of kidnapping because admittedly he was busy in selling vegetables in his shop at that time along with his wife PW-6. However, after the actual kidnapping he has deposed that he learnt of the whole occurrence from his daughter, Rubi (PW-2). He has given the same account of occurrence of kidnapping as given by PW-2. After occurrence when his son did not return, he searched for him and went to washerman’s house as well as