DEATH REFERANCE No.8 OF 2010 Death Reference made by Additional Sessions Judge, FTC-I, Lakhisarai in Sessions Trial No. 561 of 2000 against appellant Vijay Yadav alias Vijay Kumar Yadav son of Late Govind Prasad Yadav on 16th July 2010 and 19th of July, 2010; THE STATE OF BIHAR---------------------------------Appellant Versus VIJAY YADAV @ VIJAY KUMAR YADA--------------Respondents With CR. APP (DB) No.930 oF 2010 VIJAY YADAV @ VIJAY KUMAR YADAV-------------Appellant Versus STATE OF BIHAR-------------------------------------Respondents For the Appellant:- Mr. Shakil Ahmad Khan, Senior Advocate & Mr. Kanhaiya Pd. Singh, Senior Advocate For the State :- Mr. Dilip Kumar Sinha, A.P.P. For the Informant:- Mr. Devendra Kumar Singh, Advocate. ----------- P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE DHARNIDHAR JHA Mridula Mishra,J:- The criminal reference for confirmation of death sentence as referred under Section 366 of the Code of Criminal Procedure, 1973, has been heard analogous with Criminal Appeal No. 930 of 2010, preferred by sole appellant, against the judgment dated 16th July, 2010 and order of sentence dated 19th of July, 2010, passed by Additional Sessions Judge, Fast Track Court no.I, Lakhisarai in Sessions Trial No. 561 of 2000, whereby the appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to death and fine of Rs. 50,000/-, for conviction under 2 Section 27 of the Arms Act, he has been sentenced R.I. for five years and fine of Rs. 5,000/-. 2. The incident, with regard to which Halsi P.S. case no. 2 of 2000 was instituted under Section 302/34 of the Indian penal Code and 27 of the Arms Act, is based on the fardbeyan of Yogendra Singh, recorded at 4 P.M. on 1.1.2000 at Ramgarh Chowk by the Officer Incharge of Halsi Police Station, for an occurrence which took place at 2.30 P.M. on the sameday at Ramgarh Chowk. Informant Yogendra Singh ( P.W.2) was coming from Lakhisarai market on a bicycle and reached Ramgarh Chowk at about 2.30 P.M. He saw 10-15 persons assaulting some persons near three storied building of Vijay Yadav (appellant). He parked his bicycle, went towards place of occurrence and saw Vijay Yadav armed with rifle, Kampany Yadav, Padarath Yadav, Brijnandan Yadav and two nephews of Vijay Yadav, armed with lathi, brutally assaulting his nephew Pintu Kumar, son-in-law, Sunil Kumar and one villager Dipak Kumar. There were other 15-20 persons, who were also enhancing help to the accused persons. The accused persons were uttering that since these three persons are members of criminal gang of Thepari Singh, as such they should be killed. The accused persons tied rope around the neck of Pintu and Sunil Kumar. Dipak Kumar fell on his knee and started begging for his life, in response to this Vijay Yadav fired on Dipak. Vijay Yadav also fired on Pintu and Sunil and all three died at the spot. On direction of Vijay Yadav one pistol was put in the Jacket’s pocket of Sunil Kumar, some Wads and one live cartridge was also placed near the dead body of deceased, in order to create evidence against them. 3 3. The fardbeyan of Yogendra Singh was recorded by Dhananjay Kumar ( P.W.6) Officer In-charge of Halsi Police Station at about 4 P.M. on 1.1.2000 at Ranmgarh Chowk, which is the place of occurrence. The formal First Information Report of Halsi P.s. case No. 2 of 2000 was instituted on the same day at 6 P.M. against seven named accused and 15-20 unknown accused persons. Investigation of the case started immediately, by I.O. (P.W.6). He prepared inquest report of all three deceased persons (Exts-1,1/1 and ½) and these inquest reports were signed by Jai Kisun Singh and Baiju Singh (P.W.2). Dead bodies were brought to the police Station and on the next day i.e. 2.1.2000 these were sent for post mortem. Dead body was received by doctors. P.W. 8, P.W. 9 and P.W. 10, who conducted post mortem on the dead body of these deceased. Dr. Krishna Mohan Purbey ( P.W.9), conducted post-mortem on the dead body of Sunil Kumar, Dr. Rakesh Kumar Sinha (P.W.8), conducted post mortem on the dead body of deceased Deepak Kumar and Dr. Ramesh Chandra Jha, (P.W. 10) conducted post-mortem on the dead body of Pintu Kumar. The Investigating Officer ( P.W.6) interrogated witnesses and finally submitted charge-sheet on 20.5.2000 against all accused persons, namely, Brijnandan Yadav, Kamapany Yadav, Padarath Yadav, Vijay Yadav, Sudhir Yadav and Sujit Yadav. Charge-sheet was submitted against Vijay Yadav, Sujit Yadav, and Sudhir Yadav showing them absconder. Sujit Yadav and Sudhir Yadav appeared on 29.8.2000 and took plea of juvenility, as such their case was referred to Juvenile Justice Board. Appellant Vijay Yadav remained absconder for eight years and he was arrested on 4 9.2.2008. Cognizance for offence was taken by the Magistrate and case of all accused was committed to the Court of Sessions vide Sessions Case No. 327 of 2000. Since Vijay Yadav was absconding, the trial Court issued permanent warrant of arrest against him and also issued process for attachment. The trial Judge, separated his trial from Sessions Trial No. 327 of 2000 and passed an order that whatever evidence will come forward against accused facing trial, will also be relevant for absconding accused under Section 299 of the Code of Criminal Procedure. 4. A counter case was filed by Vijay Yadav vide Halsi P.S. case No. 3 of 2000 alleging that three accused i.e. Pintu, Sunil and Deepak, members of Thepari Singh’s Criminal gang, came and started indiscriminate firing on Vijay Yadav. In order to save his life and in exercise of right of private defence, he fired on them and all three died, receiving the fire arm injury. Halsi P.s. case No. 3 of 2000 was investigated and found false by the Investigating Officer. First Information Report of Halsi P.S. case No. 3 of 2000 was brought as evidence and marked as Ext. A in Sessions Trial No. 327 of 2000 to show that there was an admission of shooting by Vijay Yadav and despite this fact that Halsi P.S. case No. 3 of 2000 was found false, admission of Vijay Yadav that he fired on three deceased could not be wiped out. 5. The separated Sessions Trial No. 561 of 2000 started against Vijay Yadav on 9.2.2008 after his arrest. In the separated trial, charge was framed against Vijay Yadav on 27.4.2008. 5 6. The prosecution in order to prove charges framed against sole accused Vijay Yadav, examined 10 witnesses. Baiju Yadav (P.W.1) Yogendra Singh (P.W.2), Uma Singh ( P.W.3), Naresh Singh (P.W.4) and Permanand Singh ( P.W.5) were examined as eye- witnesses and they fully supported the case of the prosecution. P.W.7 Dinesh Yadav was declared hostile as he did not support the case of the prosecution. The Investigating Officer Dhananjay Kumar Singh (P.W.6) Dr. Rakesh Kumar Sinha ( P.W.8), Dr. Krishna Mohan Purbey ( P.W.9) and Dr. Ramesh Chandra Jha ( P.W.10) were the official witness, who investigated the case, submitted charge-sheet and conducted post mortem on the dead body of the deceased and submitted post mortem report. 7. All witnesses examined as eye-witnesses were residents of village Nandnama, which was also village of all three deceased persons as well as P.W.2, the informant. 8. Baiju Singh ( P.W.1) reached Ramgarh Chowk at about 2.30 P.M. on Ist of January, 2000, when coming from village Sarmera and going to his village Nandnama. He alighted at Ramgarh Chowk from aTata Mexi vehicle and saw 10-15 persons standing near the house of Vijay Yadav. He heard sound of assault and out cry of persons being assaulted. He went near the house of Vijay Yadav and saw that his villagers Deepak, Pintu and Pintu’s brother-in-law Sunil were being assaulted with lathi by Kampany Yadav, Sujit Yadav and Sudhir Yadav. Vijay Yadav armed with rifle was standing there and watching them being assaulted. He directed other accused to kill Deepak, Pintu and Sunit as they belonged to village Nandnama. 6 Kampany Yadav and others tied rope around the neck of Pintu, Dipak and Sunil and started tightening it. These victims, started begging for their lives, on which Vijay Yadav fired at each of them, one by one. Vijay Yadav directed to put one country made revolver in the jaket’s pocket of Sunil and three wads and one life cartridge near his dead body. P.W.1 admitted, in his cross examination, that his father Brahmdeo Singh and Jai Kishun Singh, father of Yogendra Singh (P.W.2) were brothers. Yogendra ( P.W.2), Birendra and Devendra Singh are brothers and deceased Pintu was son of Devendra and deceased Sunil was his son-in-law. In this way, P.W.1, P.W.2 and two deceased Pintu Singh and Sunil were closely related to each other. P.W.1 has deposed that after the occurrence he stayed for one hour at the place of occurrence and thereafter proceeded for his village home on foot. P.W. 1 has disclosed that village Nandnama is situated at a distance of two and half kilometers from Ramgarh Chowk. He after reaching village, gave information regarding occurrence to his uncle Jai Kisun Singh (father of informant) and both of them, along with some other villagers, again came to the place of occurrence at Ramgarh Chowk. Other villagers who had also came with them were not examined as witness. He reached at the place of occurrence at about 4.30 or 4.45 P.M., but till then sun has not set. Besides P.W. 1, at the place of occurrence Permanand Singh (P.W.5), Bachu Singh (not examined since dead) Naresh Singh (P.W.4) and Yogendra Singh (P.W.2) were also present. The Investigating Officer has already reached there and was doing some writing work. P.W.1 and Jai Kisun Singh both put their 7 signature on some papers but as he did not read it, could not know what was that paper. He came back to his village thereafter. He was interrogated by the I.O. No other witnesses were interrogated by the I.O. in his presence. P.W.1 has admitted in Para 2 and Para 7 of his evidence that there were more than 100 people at Ramgarh Chowk, when he alighted from vehicle and near-about 40-50 persons when he came back to the place of occurrence from his village. He has denied the suggestion that deceased persons were members of Thepari Singh’s gang, and had come to kill Vijay Yadav, who fired on them to save his life and for that Halsi P.S. case No. 3 of 2000 had been instituted. 9. P.W.2 is the informant of the case. He came at Ramgarh Chowk near-about 2.30 P.M., while coming back from Lakhisarai. He heard crying and shouting of Pintu, Sunil and Deepak, who were being assaulted by Kampany Yadav and others. He saw Vijay Yadav armed with rifle, commanding his associates to hang three victims, as they were resident of village Nandnama. Kampany Yadav and other accused persons tied rope around their neck. Deepak, Sunil and Pintu were begging for their life and is retaliation Vijay Yadav fired from his rifle on all three of them. Vijay Yadav ordered Kampany Yadav to bring a pistol and put it in the Jacket of Sunil. The occurrence was witnessed by Baiju Singh ( P.W.1), Uma Singh (PW.3), Permanend Singh ( P.W.5), Naresh Singh ( P.W.4) and Bachu Singh (dead). P.W.2 saw that all three persons, who were shot by Vijay Yadav died at the place of occurrence. Police came at the place of occurrence and his fardbeyan was recorded, on which he put his 8 signature. P.W.2 has admitted that the deceased Pintu was his nephew and son of his brother Devendra. He saw more than 100 persons at Ramgarh Chowk, who were not known to him. Those persons, left the place of occurrence, prior to arrival of Investigating Officer. When Investigating Officer came at the place of occurrence, sun has not set. The Investigating Officer recorded his fard-beyan, after verification of dead body of three deceased persons. P.W. 2 has stated that he had not given any information to his father about the occurrence, but he came at the place of occurrence and put his signature on inquest report. In order to justify his presence at the place of occurrence, P.W.2 has stated that he had gone to purchase diesel from Lakhisarai Bazar but could not purchase due to insufficient money and a hole in the container. He has given full detail of the occurrence right from the assault on the deceased by other accused persons, tying of rope around the neck of the deceased and firing made on them by Vijay Yadav. He has denied the suggestion that deceased persons were members of the criminal gang of Thepari Singh, and had come to fire upon Vijay Yadav, who in exercise of his right of private defence, fired on them from his licensed rifle and in this regard Halsi P.s. case No. 3 of 2000 was also instituted by him. P.W. 2 has denied the suggestion that the original FIR on which Jai Kisun Singh and Baiju Singh had put their signature as attesting witness was torn and in connivance with the Investigating Officer another First Information Report was drawn, which is the FIR of Halsi P.s. case No. 2 of 2000. 9 10. Uma Singh ( P.W.3) had reached at Ramgarh Chowk at 2.30 P.M. on Ist of January, 2000 while coming from village Aure and going to his village Nandnama. He alighted from a bus at Ramgarh Chowk and saw 10-15 persons standing near the house of Vijay Yadav. He came forward and saw Deepak, Pintu and Sunil being assaulted by Kampany Yadav with lathi and bamboo. Vijay Yadav was standing there with rifle and ordering his people to kill them. The accused persons tied rope around the neck of all three victims who were begging for their lives. Vijay Yadav fired on all three of them, one by one and they died there at the place of occurrence itself. P.W.3 has stated that out of fear, he went towards the southern direction. Thereafter the Investigating Officer came at the place of occurrence and he was also interrogated. Dead bodies were brought at Lakhisarai P.S.. He also came at the police station and remained there for whole of night and in the next morning went with the dead bodies when forwarded for post mortem. He has also stated that at the place of occurrence Baiju (P.W.1) Jai Kisun Singh ( not examined) Yogendra Singh (P.W.2), Permanend (P.W.5) and Bachhu were present and they were also interrogated by I.O. As per the statement of P.W.3, Deepak and Pintu had received two shots and three firings were made at Sunil. He has admitted that the deceased Deepak was his nephew. He has denied the suggestion regarding falsely deposing in the case. He has also denied that three deceased were members of the criminal gang of Thepari Singh, who with an intention to kill had made an attack upon Vijay Yadav and in exercise of his right of 10 private defence Vijay Yadav fired on them and in this regard Halsi P.S. case no. 3 of 2000 had been instituted. 11. Naresh Singh ( P.W.4) has come at Ramgarh Chowk at about 2’ 0 clock, while coming from Salonachak and going to his home at Nandnama. He saw a crowd and went near it. He saw Deepak Singh, Pintu Singh and Sunil Singh being assaulted by Vijay Yadav, Kampany Yadav and others with Lathi. Vijay Yadav was armed with rifle. Ropes were tied around the neck of all three persons and thereafter they were shot by Vijay Yadav from his rifle. He has admitted that deceased Sunil was his brother-in-law. He has also admitted that the occurrence was witnessed by Jai Kishun Singh, Yogi Singh, Bachchu Singh, Baiju Singh, Uma Singh and Paro Singh. He has given details of his traveling from Salonachak to Ramgarh Chowk in Para 3 of his deposition. P.W.4 has stated that his statement was not recorded by the Investigating Officer and for the first time he has come to depose in the Court. However, deposition of P.W.4 in Para 4 has completely been contradicted by the I.O., who has stated that Naresh Singh ( P.W.4) was interrogated by him. This witness has stated that deceased Deepak was brother of Thepari Singh and deceased Sunil was the son-in-law of Yogi Singh, who is the informant of the case. 12. Permanand Singh ( P.W.5) has admitted in Para 14 of his deposition that deceased Deepak was his nephew. Davesh Singh alias Thepari Singh was own brother of deceased Deepak. P.W.5 was at Ramgarh Chowk on 1.1.2000 at about 2.30 P.M. as he had gone to make some purchase. In his presence Sunil, Pintu and Deepak 11 came on a motorcycle at Ramgarh Chowk and were taking betel from the shop of Chaurasia. Vijay Yadav came there from his house. He called his people and asked them to drag all three persons upto his house. These three persons were assaulted, dragged and brought near the house of Vijay Yadav. They started begging for their lives but Vijay Yadav fired at Deepak, Sunil and Pintu. All of them died at the place of occurrence itself. In para 17 of his deposition P.w.5 has stated that when he came at Ramgarh Chowk, none of his villagers were there but within half an hour of his arrival, P.w.2 came there. I.O. reached at Ramgarh Chowk, after half an hour of arrival of P.w.2. This witness has also stated in his deposition that at the time of occurrence there were no shops at his village and shops were at Ramgarh Chowk. He has admitted that near about 100 peoples were present at the place of occurrence, when the occurrence took place. He has also denied the suggestion regarding the right of private defence claimed by Vijay Yadav, due to which he claimed to have fired on three deceased persons. 13. The Investigating Officer Dhananjay Kumar ( P.w.6) was posted as Officer In-charge of Halsi P.s. on Ist of January, 2000. He had recorded the fardbeyan of Yogendra Singh ( P.w.2) on 1.1.2000 aat 4 P.M. at the place of occurrence which is Ramgarh Chowk, on which Permanand Singh ( P.W.5) and Naresh Singh( P.W.4) had put their signature as attesting witnesses. Place of occurrence as per the deposition of the I.O. was a vacant land adjacent to three storied building of Vijay Yadav at Ramgarh Chowk. Three dead bodies were found by him at the vacant space in front of the house of Vijay Yadav. 12 He found blood on the soil at the place of occurrence. He also found one live cartridge, three wads and one country made pistol kept in the jacket’s pocket of deceased Sunil. People, present at P.O. disclosed that Vijay Yadav was taking liquor at the first floor of his house, prior to the occurrence. I.O. (P.W. 6) found one chowki, two chairs, three empty bottles of liquor, 2-3 glasses, one packet of cigarette and match boxes at first floor of the house of Vijay Yadav. He did not find any sign of firing either on wall or at any place of Vijay Yadav’s first floor house which could have indicated any firing made by deceased persons on Vijay Yadav.. There was no sign of firing present there, whatever sign of firing he found, that was at vacant land in front of the house of Vijay Yadav. Persons present near the place of occurrence, at the time of investigation, disclosed that three deceased persons came on a black coloured Rajdoot motorcycle bearing No. BP-IL-5486 and were taking betel from the betel shop of one Chourasia. Vijay Yadav also came there and asked his associates to drag them upto the place near his house. The associates of Vijay Yadav, assaulted and dragged all three deceased upto his newly constructed house. All three persons were assaulted and finally shot dead near the house of Vijay Yadav. The motorcycle on which the deceased persons had come, was seized by the I.O. and a seizure list was prepared, on which Suryadeo Mistri and Lakhan Sah ( not examined) had put their signature. P.W.6 had inspected first floor of the house of Vijay Yadav, but did not find any mark of firing, which could have supported the plea taken by Vijay Yadav regarding right of private defence. He prepared inquest report of all three deceased 13 persons, on which Jai Kishun Singh and Baiju Singh (P.W.2) had put their signature. He also issued command for sending dead bodies for post mortem on 2.1.2000. On 5.1.2000 he interrogated P.W.1, P.W.3, P.W.4 Bachu Singh, ( now dead) and some persons at Ramgarh Chowk. Persons examined at Ramgarh Chowk have not been examined as witness. P.W. 5 was examined by him on 21.6.2000. P.W. 6 in para 23 of his deposition has stated that Halsi P.s. case no. 3 of 2000 instituted by Vijay Yhadav was also investigated by him and his claim that firing was made by him in exercise of his right of private defence was found false. He has denied the suggestion that investigation was not done properly by him and the accused persons were charge-sheeted by him in connivance with the prosecution witnesses. 14. P.Ws. 8, 9 and 10 had conducted post mortem on the dead body of the three deceased persons. Dr. Rakesh Kumar P.W.8 had conducted post mortem on deceased Pintu kumar and found four ante mortem injuries. Three injuries were caused by fire arms and one injury by hard and blunt substance. Dr. Krishna Mohan Purbey P.W.9 had conducted post mortem on the person of Sunil Kumar and found three fire arm injuries. He did not find any charring on the site of the injuries. According to P.W.9 firing might have been made from a distance of 4 feet. Dr. Ramesh Chandra Jha P.W.10 had conducted post mortem on the dead body of Deepak Kumar. As per the opinion of P.W.10 injuries found on the dead body were caused by hard and blunt substance as well as by fire arm and cause of death was both asphixia as well as fire arm injuries. 14 15. From the order-sheet of the trial Court, it transpires that sufficient time was allowed to the accused for examining defence witnesses but not a single defence witness was produced for examination. Appellant’s statement was recorded under Section 313 Cr.P.C., but he refused to sign his statement recorded under Section 313 of the Code of Criminal Procedure, as such his Advocate Shri Janardan Prasad Mahto put his signature on it. 16. The appellant was represented by two learned Senior Counsels, Shri Kanhiya Prasad Singh and Shri Shakil Ahmad Khan. Counsels appearing for the appellant have assailed impugned judgment of conviction stating that the Trial Court has completely misjudged the quality of prosecution evidence, before awarding highest punishment of death to the appellant. Prosecution was never interested in examining independent and trustworthy witnesses. There were eight charge-sheet witnesses, out of which only five have been examined. One of the charge-sheet witness, Bachhu Singh died before his deposition, as such he was not examined, but Jaikisun Singh, Monikant Singh, Ramakant Singh and Kedar Singh whose names have been mentioned by P.W. 1 in his evidence and who were also charge-sheeted witnesses were also not examined. The Prosecution has not shown any reason for their non examination. P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 who have been examined as eye-witnesses, are resident of village Nandnama. All three deceased also belonged to village Nandnama. There was no natural reason for presence of these witnesses at Ramgarh Chowk at the time of occurrence. Evidence of all these witnesses show that distance of 15 village Nandmana from Ramgarh Chowk is 2 to 3 Kms. The date of occurrence was 1st January, i.e., first day of the year. This is not the case of prosecution that no other person than these villagers