DEATH REFERANC No.6 OF 2007 ----- STATE OF BIHAR ---------- -Appellant Versus MD.MANNAN @ ABDUL MANNA ----Respondent With CR. APP (DB) No .963 oF 2007 MD. MANNAN @ ABDUL MANNAN Appellant Versus STATE OF BIHAR Respondent -------- Reference made by Additional Sessions Judge, Fast Track Court No. 3, Darbhanga vide letter no. 789 dated 12-7- 2007and appeal against the judgment and order 29-5-2007 passed in Sessions Trial No.220 of 2004 arising out of ManigachiP.S.Case No. 13 of 2004. COUNSEL FOR THE APPELLANT : MR.KUMR RAJEEV COUNSEL FOR THE STATE : MR.A.K. SINHA, APP --------- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON’BLE MR. JUSTICE MADHAVENDRA SARAN -------- Shiva Kirti Singh,J The death reference in respect of the sole accused Md. Mannan @ Abdul Mannan and his appeal have been heard together and are being disposed of by this common judgment . 2. The appellant has been convicted under section 366 of the Indian Penal Code ( hereinafter referred to as the I.P.C.) and sentenced to R.I. for 10 years, under section 376 I.P.C. and sentenced to life - 2 - imprisonment, under section 201 I.P.C. and sentenced to R.I. for 7 years and under section 302 I.P.C. for which he has been awarded death sentence. 3. According to the prosecution case the occurrence took place on 28-2-2004 at 1400 hours and a written information ( Ext.3) was lodged at police station Manigachi on the same day at 23.00 hours by Shrawan Kumar Jha (P.W.10), leading to Manigachi P.S. Case No. 13 of 2004. The prosecution case is that appellant Md. Mannan who was working as a mason and was engaged in the plaster work at the residence of informant’s uncle Devi Kant Jha ( P.W.8 ). On 28-2-2004 at about 2 P.M. he gave rupees two to the niece of the informant, Kalyani Kumari aged about 8 years, to bring betel for him from Hanuman Chawk. After some time, leaving his work the appellant also reached at the Chawk and got seated Kalyani on the carrier of his bicycle and went away talking with her. Some women such as Maya Devi wife of Sona Mishra (P.W.5) heard the pieces of casual conversation which the appellant was having with Kalyani but at that time they did not pay any attention to such a happening. When Kalyani did not return home then after some time a search was made. In course of that the informant learnt the aforesaid facts from the women such as P.W.5 that they had seen a person taking away Kalyani on bicycle. Then the informant and his family members - 3 - began a search for the girl. In course of search they went to the houses of the appellant and a contractor, Md. Tahir through whom the appellant was engaged to work as mason. The Officer Incharge at Bahera P.S.( under which the village of the appellant lies) was also informed for help in the search. In course of enquiry the informant came to learn about the appellant that in the past also he had taken away minor girls by alluring them and after committing rape he had murdered them. While the informant and some others were returning home from Bahera, they saw the appellant in the way, a little south from Udai Chauk who was going towards Bahera. He tried to escape but was caught. On enquiry he did not reveal any information about the girl. He was brought to the house of the informant where the women who had seen him ( P.W.5) told that he was the person who had taken away Kalyani on his bicycle. After such confirmation the informant and his family members brought the appellant to Manigachi police station at about 11.30 P.M. and handed him over to the officer incharge and filed a written information for taking suitable action apprehending that he had kidnapped and killed Kalyani after committing wrong acts. 4. The Officer-in-Charge, S.I. of Police, Hari Ram (P.W.11) took up investigation after registering the case. The appellant gave a confessional statement ( Ext.6) to the I.O. at 12.30 in the night of 29-2-2004 in the - 4 - presence of witnesses Amar Kishore Jha (P.W.2) and Devi Kant Jha (P.W.8) and other villagers. The confessional statement was signed by the appellant, the I.O. and the aforesaid two witnesses.. Since the appellant had confessed his guilt and disclosed the place where he has raped and killed Kalyani the I.O. went to the concerned place in village Ijar Hat Bandh along with armed force and family members of the victim girl at about 3 O’ clock in the morning of 29/2/2004. As per disclosure made by the appellant the I.O. recovered the dead body of the kidnapped girl from amidst field having wheat and Rahar crops standing. Uncle of the deceased and other villagers identified the dead body as that of Kalyani Kumari. The I.O. prepared the inquest report in presence of Amar Kishore Jha ( P.W.2) and another person. After getting the postmortem of the victim girl done by Government doctor, Prafulla Kumar Das ( P.W.4) and recording statement of witnesses, the I.O. submitted charge sheet against the appellant for kidnapping , raping and killing a minor girl. 5. After cognizance the case was committed to the court of sessions where the trial commenced by framing of charges against the appellant. He denied the charges and therefore, faced the trial in which he has been convicted and sentenced, as already noted, to capital punishment of death and some other punishments also. - 5 - 6. The prosecution, in order to prove its case, has examined 11 witnesses in total. It has also brought on record the postmortem report as Ext.1, the signature of P.W.8, Devi Kant Jha on the confessional statement of the appellant as Ext.2, the signature of appellant on his confessional statement as exhibit 2/1, the signature of Amar Kishore Jha (P.W.2) on confession as ext.2/2, hand-writing and signature of the informant on the written information as ext.3, the formal F.I.R. as Ext.4, the endorsement on the written information as ext.5, the confessional statement of the appellant as ext.6, paragraphs 1 to 66 of the case diary which includes copy of inquest report as ext.7 and an attested photo copy of the inquest report as ext.8. 7. The defence has not examined any witness nor it has filed any documentary evidence. 8. The defence of the appellant is simply a denial of the occurrence and a general grievance that the investigation was not conducted fairly and that on the point of kidnapping, the statements of the witnesses suffer from contradictions. 9. From the medical evidence adduced in this case by Dr. Prafulla Kumar Das, P.W.4 it is established beyond any doubt that the autopsy was conducted on the dead body of Kalyani aged about 8 years, thin built, 4 feet in height,on 29-2-2004 at 4.50 P. M.. The doctor found one - 6 - bruise ½” x ¼” over right cheek, 2” below right lower eye lid. The smaller lacerations varyimg in size ¼” x 1/8” to 1/8” x 1/16” were present all around the nail beds in the lateral fingers of right hand. They were covered with blood and blood clots. One bruise ½” x ½” was found on the left lower jaw in the middle. Underlying soft tissues and muscles were found contused and infilterated with blood and blood clots. Besides those ante mortem injuries which were simple in nature and caused by hard and blunt objects, the doctor also found bruise 3” x 2” on the front of neck over thyroid cartiledge. Neck muscles were deeply contused and bruised. The injury around the neck was grievous and dangerous to life in ordinary course of nature, caused by some hard and blunt object or pressure over neck obstruct ting the air passage. Death was due to asphyxia and haemorrhage as a result of strangulation within 18 to 24 hours from the time of post mortem examination. The doctor also found the pant soaked with blood and blood clots. There was big tear in front of the pant. Lobia majora was swollen and bruised with blood all around. On cleaning there was perincal tear with hymenal tear extending from vaginal wall at 9 O’ clock position measuring 1” x ½” x ¼”. Underlying soft tissues and perincal muscles were bruised and infilterated with blood and blood clots. Vaginal canal contained blood secretations. Vaginal swab and secretions taken from the vaginal canal - 7 - were examined under the microscope immediately after the collection of the sample. Few intact spermatozoa were seen in these with plenty of red blood corpusules. According to opinion of the doctor there was positive evidence to suggest commission of recent forceful sexual intercourse with the victim with emission. 10. In the facts of the case the medical evidence clearly establishes the prosecution case that the victim Kalyani Kumari was subjected to rape and murder. 11. The issues which require further consideration are – (1) whether the appellant kidnapped the victim as alleged by the prosecution and (2) whether the appellant can be held guilty of the offence of rape and murder of Kalyani for which there is no direct evidence except the alleged confession of the appellant before the police recorded in presence of witnesses and pursuant to which, allegedly on appellant’s disclosure the dead body was found in a field by the side of a river. 12. For deciding the aforesaid issue it is relevant to notice the evidence of prosecution witnesses . P.W.1, Raj Kumar Jha is a relation of the informant and of deceased. He has a shop at Hanuman Chauk . He has claimed also to be Mukhia of the local Gram Panchayat. He claimed that he knew the appellant and identified him in dock. He also knew the deceased Kalyani. He has supported the prosecution case that the - 8 - appellant was doing the work of a mason in the house of Devi Kant Jha( P.W.8) who was grand-father of deceased Kalyani. He has claimed to have seen the appellant coming to Hanuman Chawk and getting seated Kalyani on his bicycle and taking her towards village Igharata. Thereafter Kalyani never returned nor the appellant came back till evening when the search started. He along with others went to the house of the appellant but he was not there. The house of the appellant is in village Kaziana near Baheri P.S. When appellant was not found in his house, the witness informed Baheri police station to look for him and the girl and when they reached near Udai Chawk they saw the appellant in an inebriated condition. He was caught and brought to the village and then he was handed over to the police along with a written petition. Next day appellant led them to the wheat field and showed the dead body of deceased Kalyani. There was only a panty on the person of the dead body and no other clothes. P.W.1 has admitted that the deceased was his sister’s daughter and his house is situated ½ km .east to the house of the sister. He has disclosed that Kalyani came to take betel from the shop of Phul Jha ( P.W.3) which is at a distance of 5 feet from his shop and Phul Jha knew that Kalyani was his sister’s daughter. He has given the distance of appellant’s village to be 10 km. south from his village. He claims to have given verbal information at Bahera police at about 8 o’ - 9 - clock. Appellant was apprehended at Udai Chawk at 8.30 in the night and he was in an inebriated condition. He claims to have accompanied the appellant to the police station and also to have accompanied the police party when it went in search of the dead body. He was present at the time when dead body was recovered . There was none near the dead body before the arrival of the search party as it is a lonely low land. Nothing material has been elicited in his cross-examination except some minor discrepancies which are of no consequence. 13. P.W.2, Amar Kishore Jha also has a shop at Hanuman Chawk. He has claimed to have seen the appellant getting Kalyani seated on his bicycle at the Chawk and heading towards south. They did not return till evening and then he also went with P.W.1 to the village of the appellant in the search. He has deposed in support of P.W.1 that information was given at Bahera police station and then the appellant was caught and taken to the village and thereafter to the police station where a written petition was also given to the police. He has claimed that the appellant confessed in presence of all that he has committed rape on Kalyani and thereafter he killed her. He has claimed that he also went with the search party from where the dead body of Kalyani was recovered with injuries on her private parts. Her nails were munched and there were marks of bruises at different places of the body. He has also identified the - 10 - appellant. There is some apparent error in recording his deposition in paragraphs 18 and 19 while his attention was drawn to his earlier statements before the I.O. but while examining the I.O., no contradiction has been obtained in respect of earlier statements and the I.O. has deposed in paragraphs 15 and 19 that this witness and other witnesses fully supported the occurrence. 14. P.W.3, Phul Jha is the owner of betel shop from where deceased Kalyani purchased betel on 28-2-2004 between 2 to 2.30 in the day. He has deposed that after receiving betel she gave him two rupees and when he was returning 50 paise to her she asked for toffee for the said amount which he gave to her.When Kalyani got down from his shop after taking toffee the appellant came by a bicycle, took betel from her hand after getting her seated on the carrier of his bicycle, took her in the southern direction. After one or two hours he saw family members of Kalyani searching for her and he informed to them that the appellant had taken her towards southern direction then all started searching for the appellant. He was caught in between Mathore and Udai village but Kalyani was not with him. He has also deposed that the appellant was brought to the village and then taken to police station where he confessed his guilt and the dead body was recovered from the place pointed out by the appellant. He has identified the appellant in court also and claimed that he knew - 11 - him from before since 7-8 days when he started working as mason in the house of grand-father of the deceased. He has deposed that he knew the deceased from before . He has admitted that he was not amongst the persons who were searching Kalyani. His attention has been drawn to several earlier statements before the I.O. but no contradictions have been obtained from the I.O. ( P.W.11) who has said in paragraph-19 that this witness and some others had fully supported the occurrence. 15. P.W.5, Maya Devi has deposed that her house is situated in the village of the occurrence by the side of road. At about 2 o’clock in the day time while she was standing towards the road side she saw the accused going towards south and Kalyani was seated on the carrier of the bicycle. She has also deposed, as disclosed in the F.I.R. that the accused was asking Kalyani as to where her father resided and Kalyani replied that her father lived in Bombay. She has further deposed that in course of search village people brought the accused from Udai Chawk to the village. she was called by the villagers and after looking at the accused she identified him as the person who had taken away Kalyani with him. She identified the appellant in the dock also as the person whom she had seen taking away Kalyani on his bicycle. Nothing material has been elicited in her cross-examination. 16. P.W.6 is Radhe Shyam Jha. He has claimed to be acquainted - 12 - with the informant, the deceased and the appellant whom he knew as a mason working in the house of Devi Kant Jha. He has claimed that on 28-2-2004 at about 2 Ó’clock in the day while he was taking with a co - villager Basukinath Jha by the side of road at Hanuman Chawk he saw the appellant going towards south with Kalyani after getting her seated on his bicycle. After 1- 2 hours the family members of Kalyani started searching for her in the village and he disclosed to them that he had seen the appellant taking away Kalyani towards south on his bicycle. He claims that appellant was apprehended at Udai Chawk and brought to the village and at the Darwaja of Devi Kant Jha the appellant was recognized by him as the person who had taken away Kalyani . He has also claimed to have gone with the police party in search of the dead body along with the appellant and that the dead body was recovered from a wheat grown field by the side of Ghat. On disclosure made by the appellant, S. I. of police seized the dead body and brought it to the police station. He has identified the appellant in the dock. Nothing material has been elicited in his cross-examination. 17. P.W.7, Pramod Kumar Jha is a cousin of the informant. He has deposed some of the facts regarding appellant being apprehended and his confession at the police station. He has admitted that no occurrence had taken place before him and his statement is based upon the confessional - 13 - statement given by the appellant at the village and at the police station. 18. P.W.8 Devi Kant Jha is grand-father of the deceased Kalyani. He has deposed that he came from the Bank where he works at about 3.30 in the day of occurrence and learnt from his family members that Kalyani had gone to purchase Paan ( betel ) and appellant had also gone behind her and that Kalyani and the appellant had not returned. He along with others started searching for Kalyani and came to know from Maya Devi (P.W.5) and some others that they had seen a person taking Kalyani towards south on his bicycle. They went to the house of Mannan (appellant) who was not present there. They saw Mannan at Udai Chawk where he was apprehended and brought to his village. He did not reveal anything. Women of the village disclosed that he was the person who had taken Kalyani on his bicycle. They took the appellant to Manigachi police station. There, on police interrogation in their presence the appellant gave a confessional statement and confessed that he took Kalyani to Baghla Ghat on the bank of Kamla river and after committing rape he killed her and her dead body is lying in the wheat field. The confessional statement of appellant was read over to him on which he signed. This witness as well as P.W.2 also signed on the statement of the appellant. He has identified his signature as Ext.2, signature of the appellant as ext.2/1 and the signature of P.W.2 as Ext.2/2. In the next - 14 - morning he accompanied the police and others to the place pointed out by the appellant from where the dead body of Kalyani was recovered. He has described the injury on the body of the deceased Kalyani. He has stated that the police prepared the inquest report after inspecting the dead body. He has also deposed that appellant was engaged as a mason in his house since one week. He has identified the appellant in court also. Nothing material has been elicited in his cross-examination. 19. P.W.9, Tapeshwar Prasad is another shop owner who has a shop at Hanuman Chawk. He has claimed that he was present in shop on 28-2- 2004 when at about 2-2.30 in the day Kalyani had gone to the shop of Phul Jha to purchase betel. The betel shop is situated on the other side of the road exactly opposite to the shop of this witness. Kalyani purchased betel and toffee for herself. Meanwhile appellant reached there on bicycle. The witness saw that appellant got Kalyani seated on the carrier of his bicycle and went towards village Ejarhatta in southern direction. Thereafter he has deposed about a search being made for Kalyani at about 4 O’clock by her family members. He and Phul Jha disclosed that Mannan had taken away Kalyani on his bicycle. The family members of Kalyani and others went towards the village of the appellant in search of Kalyani. Later in the evening they returned with the appellant and at the residence of Devi Kant Jha this witness affirmed that he was the person - 15 - who had taken away Kalyani . This was confirmed by others also. When appellant did not reveal anything at the village, he was taken to police station where he confessed that he committed rape and then killed Kalyani. He disclosed that the dead body was in the wheat field near Baghla Ghat. In the next morning police took the appellant to the place disclosed by him from where the dead body was recovered. He identified the appellant in dock. An absurd suggestion was made to this witness that Devi Kand Jha did not pay money to the appellant in respect of his labour charges and therefore the appellant was falsely implicated. Nothing material has been elicited in the cross-examination of this witness. 20. P.W.10, Shrawan Kumar Jha is the informant of this case. He has fully supported the prosecution case that appellant gave rupees two to Kalyani and asked her to bring betel for him and buy toffee for herself. Kalyani went to Hanuman Chawk and the appellant followed. After some time when search was made for Kalyani then Maya Devi (P.W.5) and other ladies informed him that they had seen the appellant taking away Kalyani on his bicycle. This was confirmed by P.W 3. They went in search to the village of the appellant but he was not at his house. In course of enquiry at the village of the appellant, he learnt that appellant had committed crime of rape and murder also. He got panicky and - 16 - informed Bahera police station but they did not pay any attention to it. While they were returning home, near a bridge before Udai Chawk they noticed the appellant coming. On seeing them he tried to escape but they caught him and brought him to the residence of Devi Kant Jha in the village where Maya Devi ( P.W.5) and other witnesses confirmed that the appellant had taken away Kalyani on his bicycle. Then the appellant was taken to police station where the informant gave a petition in writing which he identified as Ext 3. At the police station the appellant confessed his guilt before the police in their presence. He revealed that after committing rape he killed Kalyani and threw her dead body in the wheat field near Baghla Ghat. Next day he and others accompanied the police party which took the appellant to Baghla ghat. Police recovered the dead body of Kalyani in their presence from the place disclosed by the appellant. He described the injuries on the dead body of the victim. The police prepared inquest report and sent the dead body for postmortem examination. He identified the appellant in dock. He has denied that there was any labour charge of Mannan due with Devi Kant Jha. Nothing has been obtained in his cross-examination. 21. As already noticed earlier, P.W.11 Hari Ram is the Investigating Officer who