DEATH REFERANCE No.6 OF 2010 -------- Reference made under Section 366 of the Code of Criminal Procedure for confirmation of death sentence awarded to the convicts in judgment and order dated 17.4.2010 passed by Sri Vijay Kumar Sinha, Sessions Judge, Jamui in Sessions Trial No. 328 of 2006 arising out of Sikandra (Chandradeep) P.S. case No. 42 of 2006; THE STATE OF BIHAR ………….. Appellant. Versus SURENDRA YADAV @ SHAILENDRA PRASAD ………….. Respondent. With CR. APP (DB) No.482 of 2010 SURENDRA PRASAD @ SHAILENDRA PRASAD ………….. Appellant. Versus THE STATE OF BIHAR ………….. Respondent. With CR. APP (DB) No.551 of 2010 PREMAN YADAV …………… Appellant. Versus THE STATE OF BIHAR …………… Respondent. With CR. APP (DB) No.558 of 2010 BINOD YADAV …………… Appellant. Versus THE STATE OF BIHAR ………….. Respondent. With CR. APP (DB) No.581 of 2010 1. SAKINDAR YADAV @ SAKO YADAV 2. JAI RAM YADAV 3. SANJAY YADAV …………. Appellants. Versus THE STATE OF BIHAR …………. Respondent For the Appellants:- Mr. Rana Pratap Singh, Mr.D.K.Sinha,Sr.Advocates And Mr. Durgesh Nandan,Advocate For the State:- Mr. Ashwini Kumar Sinha,APP For the Informant:- Mr. Surendra Kishore Thakur & Mr. Satya Prakash Parasar, Advocates P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE JUSTICE Shri DHARNIDHAR JHA ************ Mridula Mishra, J. Sessions Trial No. 328 of 2006 and Sessions Trial No. 16 of 2009, arising out of Sikandara (chandradeep) P.S. case No. 42 of 2006 were conducted analogous by Sessions Judge, Jamui, framining charge against all accused under Section 302/34 of the Indian Penal Code. The trial Court by 2 judgment and order dated 17.4.2010 has convicted all accused- appellants under Section 302/34 of the Indian Penal Code. Appellants Surendra Yadav alias Shailendra Prasad and Preman Yadav were awarded sentence of death and directed to be hanged by their neck till they are dead. But other appellants have been sentenced R.I. for life and fine of Rs.50,000/- and in default of payment of fine S.I. for six months. The District and Sessions Judge, Jamui had made reference for confirmation of death sentence under Section 366 of the Code of Criminal Procedure, as such Death Reference and criminal appeals were heard analogous and being decided by a common judgment. 2. Nepali Yadav is the informant of Sikandara (Chandradeep) P.S. Case No. 42 of 2006, who was examined as P.W. 4 in Sessions Trial No. 328 of 2006 and P.W. 2 in Sessions Trial No. 16 of 2009. He is father of three children Kajal Kumari ( two years), Vikas Kumar (six years) and Mukesh Kumar (three and half years), who were killed by the accused persons, in order to create terror in the village, so that no other person than wife of Krishnandan Yadav should contest election for the post of Mukhia, in the Gram panchayat Election of 2006. 3. The prosecution story as revealed in the fard beyan of Nepali Yadav, recorded in between the 3 night of 19/20.3.2006 at 1.00 a.m. is that he along with his wife Uma Devi (P.W. 14 in Sessions Trial No. 328 of 2006 and P.W. 10 in Sessions Trial No. 16 of 2009) and three children namely, Kajal Kumari, Vikas Kumar and Mukesh Kumar, were sleeping in his room. He heard knocking sound at the door at about 11.00 p.m. and inquired, who was there, knocking at the door. The answer came that Dafadar Surendra Yadav, and Officer-in-charge of Police Station were waiting outside the door. Nepali Yadav opened the door and saw his villagers, Preman Yadav, Uday Yadav, Nepal Yadav, Sanjay Yadav and Jai Ram Yadav standing. They were fully armed, and forcibly pushed themselves into the room. Preman Yadav asked about the children of informant and he replied that two of his children were at their grand parents house and other three children were sleeping in the room. The accused persons lifted his three children from their bed and came out of room. Informant and his wife objected and tried to restrain them, but accused persons enhanced threat and asked them not to raise their voice, or otherwise they will be shot. Despite this threat Informant, raised alarm and also followed the accused persons, who were taking away his children. Informant, coming out of room saw that Kallu Yadav, Surnedra Yadav, Krishnandan Yadav, Sikandar Yadav, Binod Yadav and Gohan Yadav, were keeping watch 4 from outside of the room. They were also variously armed with fire arms. They surrounded the informant and enhanced threat. In the meantime, hearing the alarm raised by the informant and his wife, Raghu Yadav and Devi Yadav, two brothers of the informant, who were sleeping in the adjacent rooms, came out. They were also surrounded and overpowered by accused persons. The accused persons escorted the informant and his brothers upto Devisthan, where in their presence Krishnandan Yadav cut and tear (pierced) the abdomen of Kajal Kumari, the daughter of the informant. At that time Preman Yadav and Surendra Yadav had caught hold of Kajal Kumari and Nepal Yadav slit her neck. The accused persons, thereafter took away two sons of the informant, namely, Vikas Kumar and Mukesh Kumar towards west of the village. The informant was threatened by the accused persons not to disclose about the occurrence before anyone or otherwise other family members will also be killed. Kajal Kumari was still alive, as such informant and his brothers lifted her and brought near the village road. At that very time police jeep came, and informant narrated about the incident to the police officials. The Police Officer, immediately sent Kajal Kumari for her treatment to Sadar Hospital, Jamui on the Police jeep. The Officer- in-charge along with other police personnels, the 5 informant, his brothers and villagers started searching for his two sons. In course of search, dead body of two sons of the informant, namely, Vikas Kumar and Mukesh Kumar was found thrown near the northern wall of the Upper Primary School, Islam Nagar. The abdomen of Mukesh and Vikas were also cut and torn and their necks slit. The motive for committing such offence by the accused persons as disclosed in the FIR was the ensuing 2006 Panchayat Election, for the post of Mukhia in which Uma Devi, wife of the informant intended to stand for the post of Mukhiya and wife of accused Krishnandan Yadav was also intending to contest. A threat had already been enhanced by Preman Yadav and Krishnandan Yadav to the informant that if his wife will contest the election, entire family will be killed. The case of the prosecution is that just to create terror in the minds of the electorate and to restrain informant’s wife from contesting election, his three innocent minor children were killed in such brutal manner. 4. On the basis of fard beyan of informant Nepali Yadav, FIR of Sikandara (Chandradeep) P.S. Case No. 42 of 2006 was instituted at 10.30 a.m. on 20.3.2006 against 10 named accused persons for offence under Sections 302, 307, 324/34 of the Indian Penal Code. The case was investigated by the S.I. Jai Prakash Singh (examined as P.W. 15 in Sessions Trial 6 No. 328 of 2006 and P.W. 13 in Sessions Trial No. 16 of 2009), who on completion of investigation, submitted charge sheet against 10 accused persons. Charge sheet was submitted against some of the accused persons showing them as absconders. Out of 10 charge sheeted accused persons, only three were committed to the Court of Sessions for facing trial in Sessions No. 328 of 2006. After three years, during the pendency of the Sessions Trial No. 328 of 2006, three accused, namely, Binod Yadav, Jai Ram Yadav and Sanjay Yadav were also apprehended and committed to the Court of Sessions for facing trial, being Sessions Trial No. 16 of 2009. Rest four accused persons are still absconding and as such not put on trial. Two of the main accused, who as per the prosecution case, have cut the abdomen of three children and slit their necks, namely, Nepal Yadav and Krishnandan Yadav, are still absconding ,not put on trial. 5. Accused persons, who faced trial allegation against them was that they entered into the room of the informant, lifted his three children from their bed, while sleeping and brought them to a place where they were later on, killed by Nepal Yadav and Krishnandan Yadav. Further allegation against the accused/appellants is that they surrounded, overpowered the informant and his brothers, outside 7 informant’s room, restrained them from putting any obstruction to the accused persons, in taking away informant’s three children. The accused/appellants are also alleged to have brought the informant and his brother in escort to Devisthan, where Kajal was killed in their presence and two sons were taken away towards north of village, and later on found dead and their bodies lying near School’s compound wall. Specific allegation against Surendra Yadav and Preman Yadav is that they caught hold of Kajal Kumari, while her abdomen was being cut and pierced by Krishnandan Yadav and neck slit by Nepal Yadav. 6. The prosecution in order to prove the charges against accused persons examined altogether 15 witnesses in Sessions Trial No. 328 of 2006 and 13 witnesses in Sessions trial No. 16 of 2009. P.W.1 Bhagwan Prasad Yadav and P.W.2 Rajendra Yadav, two advocate clerks were examined as formal witness in Sessions Trial No. 328 of 2006. They were not examined in Sessions Trial No. 16 of 2009. All other witnesses, namely, Chand Yadav, Nepali Yadav, Rameshwar Yadav, Rajeshwar Yadav alias Rameshwar Yadav, Raghu Yadav, Nandu Yadav, Devi Yadav,Dasrath Yadav, Brahmdeo Yadav, Arjun Yadav, Krishna Yadav and Uma Devi were examined in both the sessions trial. Dr. Vijay Kumar, CAS, Jamui who conducted post mortem was examined as 8 P.W.12 in both the sessions Trial. S.I. Jai Prakash Singh, the Investigating Officer has been examined as P.W.15 in Sessions Trial No. 328 of 2006 and P.W.13 in Sessions Trial No. 16 of 2009. 7. The Investigating Officer Jai Prakash Singh has deposed that on 19.3.2006, during his night mobile duty, he reached near primary school of village Islampur and saw assemblance of some persons there. Nepali Yadav was standing with his injured daughter Kajal Kumari. He disclosed about some incident. His statement was recorded by him and read over to him. Injured daughter of informant, Kajal Kumari was sent for her treatment to Sadar Hospital, Jamui. Nepali Yadav, informed the Investigation Officer regarding kidnapping of his two sons, as such he proceeded in search of two kidnapped sons of informant. In course of search, he reached near the Primary School, situated near Bisahri Asthan and there he found dead bodies of Vikash Kumar and Mukesh Kumar, whose abdomen were torn and necks slit. Both the boys were killed inflicting similar injuries. The inquest report of both the deceased were prepared. Dead bodies of two sons of the informant were sent to Sadar Hospital, Jamui for post mortem. The 1st place of occurrence, as disclosed in the fard beyan of informant is his house made of mud having tiled roof. In the same campus, 9 there were three rooms. In one of the room, facing east, the informant Nepal Yadav is said to be residing with his family and in other two rooms Devi Yadav (P.W.7) and Raghu Yadav ( P.W.6) brothers of the informant used to reside. In all three rooms, wodden doors were found fitted. The children are said to be sleeping in the room of the informant, from where they were lifted by the accused persons and brought to a distance of 200 yards near Dargah field, where daughter of informant Kajal Kumari is said to be killed by slitting her neck and tearing her abdomen. The Investigating Officer has deposed that he found Kajal Kumari alive, when he reached there and sent her for treatment to Sadar Hospital, Jamui. He also found out the dead bodies of Vikash Kumar and Mukesh Kumar, two sons of the informant, who were also killed in similar manner by inflicting similar injuries as inflicted and found on the body of Kajal Kumari. A blood stained, small knife was also recovered from the place, where dead bodies of two boys were found lying. The blood-stained knife was seized and a seizure list (Ext.3) was prepared. Blood-stained soil was also seized and seizure list ( Ext.3/1) was prepared. The place from where dead bodies of two boys were recovered was an open field, at a distance of 100 yards from the village road. Adjacent to the place of occurrence, in the southern side was the 10 house of accused Krishnandan Yadav, who was found absconding. The Investigating Officer has deposed that on completion of investigation, he submitted charge sheet showing Krishnandan Yadav, Preman Yadav, Nepal Yadav, Uday Yadav, Kallu Yadav, Binod Yadav and Surendra Yadav as absconding. Surendra Yadav and Satendra Yadav were arrested and taken in the custody. So far Surendra Yadav is concerned; he was arrested in the night of the occurrence itself from his house, where he was found sleeping. 8. The prosecution has examined Rajeshwar alias Rameshwar Yadav (P.W.5), Ram Chand Yadav ( P.W.8), cousin of the informant, Brahmdeo Yadav (P.W.9), the uncle of the informant as hear say witnesses. They have specifically stated in their deposition that they have not seen the accused persons either taking away the children or killing them. They also have not seen the accused persons fleeing away from the place of occurrence. Whatever they have deposed that is on the basis of the disclosure made before them by the Informant Nepali Yadav. A suggestion has been put by the defence to all hear say witnesses that since all of them were accused in the murder case of Bhagia Devi and Sumitra Devi along with the informant, as such they have deposed falsely. P.W.11 Dasrath Yadav is also a hear say witness and he has stated in para 6 of his 11 deposition that he had not made any statement before the Police during investigation and for the first time, he has come to depose as witness in Sessions Trial No. 16 of 2009. P.W.12 Arjun Yadav and P.W.13 Krishna Yadav have been declared hostile and were cross examined by the prosecution, since they made statement that for the first time, they have come to depose in Court and earlier they had never made any statement before the Police, after the occurrence. These two witnesses have also stated that Nepali Yadav, the informant had not narrated anything about the incident before them. Counsel for the appellants has submitted that four material witnesses examined as an eye-witness to the occurrence are admittedly closely related to the deceased and the informant. P.W.4 the informant is the father of three deceased children. P.Ws. 6 and 7 Raghu Yadav and Devi Yadav are own brothers of the informant and uncle of the deceased children. P.W.14 Uma Devi is the wife of informant, mother of three deceased children and sister in law of P.W. 6 and 7. So far P.W. 14 Uma Devi is concerned, she is not the eye witness of the killing of her children by the accused persons. She has witnessed the occurrence only relating to forcible entry of accused persons, with arms into her room and taking away of her three children by the accused persons towards Bishahri Asthan. In Para 1 of her 12 deposition, she has stated that when her husband came back then she was informed that her daughter and two sons were killed by the accused persons near Bishari Asthan, inflicting injury by knife. She has not even witnessed accused Kallu Yadav, Gohan Yadav, Krishnanand Yadav and Binod Yadav surrounding the house and keeping watch from outside the room, while other accused persons had entered into the rooms for taking away her children. As per her deposition Nepali Yadav, Preman Yadav, Jairam Yadav, Sanjay Yadav and Uday Yadav had entered into her room and taken away her three children, despite her serious resistance. In this way she has not witnessed the actual incident of killing of her children. P.W. 6 and P.W.7 have not witnessed the initial entry of the accused persons fully armed, into the room of the informant after knocking at the door of informant as well as taking away of three children of informant by the accused persons despite serious resistance. 9. P.W.6 and P.W.7 woke up and came out of their rooms, hearing the alarm raised by Nepali yadav P.W.4. They saw that Nepali Yadav has been overpowered by Surendra Yadav, Gohan Yadav, Kalu Yadav, Krishnanand Yadav and Binod Yadav. P.W.6 and P.W.7 have not witnesses Preman Yadav, Nepal Yadav Sanjay Yadav, Jairam Yadav and Uday Yadav 13 forcibly taking away Kajal Kumari, Vikash Kumar and Mukesh Kumar from the room. They saw Kajal Kumari in the lap of Preman Yadav, when they reached Bishahari sthan escorted by other accused persons from their house. They saw Surendra Yadav pulling away Kajal Kumari from the lap of Preman Yadav and at that very time Krishnanand Yadav tearing her abdomen with knife and Nepal Yadav slitting her neck. P.W.6 and P.W.7 as per deposition have witnessed all accused persons, taking away Mukesh Kumar and Vikash Kumar towards western direction of the village. Names of accused persons have not been specified by P.W.6 and P.W.7, who took away three sons of the Informant. P.W.6 and P.W.7 have stated that they did not follow the accused persons; rather they brought injured Kajal Kumari towards village road as she was still alive and at that very time police came. They were interrogated by the Officer In- charge and they narrated the incident before him. As per evidence of P.W.6 and P.W.7, some villagers had also assembled. They along with the police and villagers proceeded in search of two sons of the informant, where dead bodies were found near the school wall. In this way P.W.6 and P.W.7 have not seen those persons inflicted injuries to Vikash and Mukesh, two sons of the informant and killed them. 14 10. So far P.W.4 Nepali Yadav is concerned, he is the sole witness who has witnessed the occurrence right from beginning to end, but he has also not witnessed the actual killing of his two sons, namely, Mukesh and Vikash Kumar by the accused persons. He as per his deposition has witnessed taking away of his sons towards western side of the village by all accused persons. 11. P.W.10 Dr. Vijay Kumar had conducted post mortems on the dead body of all three deceased children on 20.3.2006. His deposition discloses that similar injuries were found on the persons of all three deceased children. He found incised wound on the person of all three deceased children. He found incised wounds 5” x 1” muscle and trachea deep in interior part of neck, with blood clots, traches incised and left carotid lacerated. Incised would 10”x5” x abdominal cavity deep intestinal loops protruding through wound on anterior wall and lower part of right chest. On dissection he found abdomen and chest in lower part of right lower ribs (6th and 7th) fractured with laceration through wound, blood clots present. Injuries were caused by sharp cutting weapon, such as knife. The injuries found on the person of all three deceased were found to be the cause of death. He found similar injuries on the dead body of Vikash Kumar, Mukesh Kumar and Kajal Kumari, with 15 different specification. The injuries which were found on the person of all three children weresuggestive of this fact that all three children must have been inflicted injury by the same person, with same weapon and the manner also must have been same as injuries were identical. 11. None of the witnesses has seen, who inflicted injury to Mukesh and Vikash but they have witnessed injuries being inflicted on Kajal Kumari. It was Krishnanand Yadav who had inflicted injury on her abodomen and Nepal Yadav who slit her neck. The witnesses have also stated that so far Preman Yadav and Surendra Yadav is concerned, they had caught hold of Kajal Kumari. There is no evidence to show that Preman and Surendra Yadav have given any blow through knife to Kajal Kumari. So far other two deceased are concerned, there is no evidence that the appellants Surendra Yadav and Preman Yadav have caught hold of them or in any manner caused injury to the deceased. 12. In the background of these evidence, Mr. Farooque Ahmad Khan, who appeared on behalf of appellant Surendra Yadav alias Shailendra Prasad has submitted that there is no evidence on record to show that appellant Surendra Yadav alias Shailendra Prasad had ever enhanced any threat to the informant and his family that in case his wife will contest 16 election of Mukhia the family will have to face dire consequences. Evidence of P.Ws. 4,5,6,7,8,9 and 14 disclosed that it was Krishnanand Yadav who had threatened the informant that his wife should not contest the election of Mukhiya, since wife of Krishnanand Yadav was also one of the intending candidate for this post. The evidence of P.Ws. 4,6 and 7 is also specific that it was Krishnanand Yadav who gave knife blow in the abdomen of Kajal Kumari and thereafter Nepal Yadav had slit her neck due to which she died subsequently. 13. The evidence of P.Ws. 4 and 14 is very specific on this point that accused Preman Yadav, Nepal Yadav, Jairam Yadav, Sanjay Yadav and Uday Yadav entered into their room and forcibly took away their three children for the purposes of killing, despite their resistance. Binod Yadav and Sako alias Sakindar Yadav were awaiting outside the room and as soon as informant and his brothers Raghu Yadav and Devi Yadav came out, they were surrounded and overpowered by them. P.W. 5 has not witnessesd any part of the occurrence but when he went at Bishari Asthan, hearing the alarm, Nepal Yadav the informant disclosed before him that the accused-appellants had forcibly brought his children and killed them. P.Ws. 6 and 7 are the brothers of informant. They have stated that when they came out of the room Surendra Yadav, 17 Binod Yadav, Gohan Yadav, Kallu Yadav and Krishnand Yadav overpowered them. They were fully armed. P.Ws. 4,5 and 6 were escorted by them to Bishari Asthan, where they saw Preman Yadav, Nepal Yadav, Sanjay Yadav and Uday Yadav with the children of the informant. Kajal Yadav was in the lap of Preman and Surendra Yadav forcibly pulling her from the lap of Preman Yadav. P.W.8 is a hear-say witness and he has disclosed that informant P.W.4 has narrated the story before him and he came to know about presence of all the accused-appellants. The name of the accused persons have been disclosed by P.W.4 also before P.W.9. Only name of Preman Yadav, Jairam Yadav, Sanjay Yadav, was disclosed by the P.W.4 before I.O. P.W.13, the Investigating Officer, in para 8 of his evidence has stated that when he reached at the place of occurrence, near Bishari Asthan, he met the informant P.W.4 and his brothers. He has also stated that P.W.4 in his fardbeyan or in his written statement had not disclosed that he has narrated about the occurrence before any other person, though persons, assembled there were themselves knowing about the occurrence. 14. The evidence of witnesses sufficiently indicate the presence and participation of Surendra Yadav, Preman Yadav, Binod Yadav, Jairam Yadav and Sanjay Yadav so far forcibly entering into the 18 room of the informant and taking away three children from the house of the Informant to Bishari Asthan, where one by one all three children were killed. Though there is no specific evidence regarding assault made by any of these accused persons to the deceased children but there is evidence of their presence and participation in this heinous crime, as such there is sufficient evidence for their conviction under Section 302/34 of the Indian Penal Code. 15. Mr. Farooque