DEATH REFERENCE No.17 OF 2007 *** STATE OF BIHAR----------------------------------APPELLANT Versus 1. BISHWANATH SINGH, SON OF LATE SARVAJEET SINGH 2. PARVATI DEVI, WIFE OF LATE JHURI KAHAR BOTH RESIDENTS OF VILLAGE KARUP, P.S. KARGAHAR, DISTRICT ROHTAS ------------------------------RESPONDENTS With CR. APP (DB) No.1463 of 2007 RAM PRIT SINGH, SON OF LATE SARVAJEET SINGH, RESIDENT OF VILLAGE KARUP, POLICE STATION KARGAHAR, DISTRICT ROHTAS -----------------------------------------APPELLANT Versus THE STATE OF BIHAR-----------------------------RESPONDENT With CR. APP (DB) No.1480 of 2007 RAJU SINGH @ RAJEEV RANJAN SINGH @ RAJEEV RANJAN, SON OF RAMPRIT SINGH, RESIDENT OF VILLAGE KARUP, P.S. KARGAHAR, DISTRICT ROHTAS---------------------------------APPELLANT Versus STATE OF BIHAR---------------------------------RESPONDENT With CR. APP (DB) No.1481 of 2007 PRADEEP KUMAR @ PRADEEP KUMAR SINGH, SON OF VISWANATH SINGH RESIDENT OF VILLAGE KARUP, P.S. KARGAHAR, DISTRICT ROHTAS -----------------------------------------APPELLANT Versus STATE OF BIHAR---------------------------------RESPONDENT With CR. APP (DB) No.1499 of 2007 1.PARVATI DEVI, WIFE OF LATE JHURI KAHAR 2.BISHWANATH SINGH, SON OF LATE SARVAJEET SINGH, BOTH RESIDENTS OF VILLAGE KARUP, P.S. KARGAHAR, DISTRICT ROHTAS -------------------------------APPELLANTS Versus STATE OF BIHAR---------------------------------RESPONDENT *** Reference made by Sri Umesh Chandra Mishra, Additional District & Sessions Judge (Fast Track Court No.5), Rohtas at Sasaram vide letter no.101 dated 4.12.2007 and Criminal Appeals against the judgment dated 27.11.2007 and order dated 30.11.2007 in Sessions Case No.251/1999/Trial No.83/2007 *** For the Appellants: Mr. Kanhaiya Prasad Singh, Sr. Advocate with 2 M/s Ashutosh Kumar, Atal Bihari & Jyotasana, Advocates For the State : Mr. Lala Kailash Bihari Prasad, Sr. Advocate For the Informant : Mrs.Anjana Prakash, Sr. Advocate with Mr. Rakesh Kumar Sinha, Advocate *** P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR.JUSTICE SYED MD.MAHFOOZ ALAM *** Mridula Mishra, J. Death Reference No.17 of 2007 has been referred by the trial court to the High Court for confirmation of death sentence awarded by Sri Umesh Chandra Mishra, Additional District & Sessions Judge (Fast Track Court No.5), Rohtas at Sasaram to appellants, namely, Parvati Devi & Bishwanath Singh in Sessions Case No.251/1999 /Trial No.83/1999 for the offence under Section 302 of the Indian Penal Code (in short, “I.P.C.”). Besides their conviction and sentence under Section 302 of the I.P.C., these two appellants have also been convicted under Section 364/34 and Section 201/34 of the I.P.C. but no separate sentence has been awarded to them since they have been awarded death sentence. Other criminal appeals have also been preferred against the same judgment and order of conviction and sentence by Ram Prit Singh (Cr. Appeal No. 1463 of 2007), Raju Singh @ Rajeev Ranjan Singh @ Rajeev Ranjan (Cr. Appeal No.1480 of 2007) and Pradeep Kumar @ Pradeep Kumar Singh (Cr. Appeal No.1481). For their conviction under Sections 302/34, under Section 364/34 and under Section 201/34 of the I.P.C. all these appellants 3 have been sentenced to rigorous imprisonment for life and fine of Rs.5000/-, for conviction under Section 363/34 they have been sentenced to R.I. for ten years and fine of Rs.3000/- as well as for their conviction under Section 201/34 of the I.P.C. they have been sentenced to R.I. for three years and fine of Rs.1000/-. In case of default in payment of fine the appellants have been directed to undergo simple imprisonment for six months and three months, respectively. 2. Nandeshwar Singh (P.W.7) is the informant of Kargahar P.S. Case No.77/95. His fardbeyan was recorded by the Officer Inchrge of Kargahar P.S., Sri Ram Bharosha Das (P.W.11) on 6.6.1995 at 8.15 A.M. The fardbeyan discloses that the marriage of Arvind Singh younger brother of the informant was going to be solemnized on 6.6.95. On this occasion, his relatives and family members had assembled in the evening of 5.6.95 and feast was going on in the night of 5/6.6.1995. The wife of the informant Dahrmsheela Devi (P.W.8) had made her son Vishal aged about two and half years, sleep on the roof of the house after feeding him milk and at least 6-7 children of other family members were also sleeping on the roof of the house of the informant. At about 11 P.M. when P.W.8 wife of the informant again went to see her child she did not find him on the roof of the house, and search was made here and there; then she informed the informant but the child Vishal aged about two and half years was not found. The fardbeyan of the informant discloses that he suspected that some unknown persons had kidnapped his child Vishal with intention to kill him. On the basis of aforesaid fardbeyan, Kargahar P.S. Case No. 77/95 was registered 4 under Section 364 of the Indian Penal Code. The fact of the case discloses that subsequently, on the same day i.e. 6.6.1995 at 6 O’ clock in the evening, the dead body of the son of the informant, namely, Vishal was found and Sections 302 and 201 of the I.P.C. were added. 3. The police, who arrived at the place of occurrence, during course of investigation, found the dead body of child lying on the platform of Shiv Mandir near the well. It was informed to the Investigating officer by the villagers that the dead body was found in a well and it was taken out. The inquest report prepared by the Investigating Officer does not show that the dead body was taken out in presence of the Investigating Officer rather it was already on the platform of the Shiv Mandir. The dead body of the child was sent for post mortem examination. The post mortem was conducted by Dr. Srikant Prasad, (P.W.10, who was posted as Assistant Professor of Skin & V.D., N.M.C.H, Patna. The post mortem report which has been marked as Ext.3 discloses that the dead body was received for post mortem at 9.45 A.M. on 7.6.1995. It was first seen by P.W.10 at 10.30 A.M. on the same day and post mortem commenced at 11 A. M. on 7.6.1995. At the time of post mortem examination it was found that the dead body is of male child aged about two and half years. No rigor mortis could be ascertained. The face of the deceased was swollen, abdomen disturbed, greenish coloration of skin on the face and abdomen was found. Blood was found oozing through nostrils but no external injury was found on the dead body. Since on dissection, the cause of the death could not be ascertained by P.W.10, as such the viscera was presented for forensic examination and it was sent to 5 the Forensic Science Laboratory. The report of Forensic Science Laboratory has been marked as Ext.6. Ext.6 discloses that it was not a case of poisoning as no metallic, alkaloidal, glycosidal, pesticidal or volatile poison could be detected in the dark-brown fluid. 4. P.W.10 doctor, who conducted post mortem examination of the dead body, has stated in his deposition that since cause of death, in his opinion, could not be ascertained, viscera was preserved for forensic examination. He assessed that time elapsed since death to post mortem examination as within 32 to 72 hours. P.W.10 has further stated that time in vanishing the entire rigor mortis was complete within 36 hours. It starts disappearing from six hours of death. Since, in sum and substance, the evidence of P.W.10 is that cause of death could not be ascertained, as such he could not mention – whether it was a case of homicidal death. Considering Exts. 3 and 6 and the evidence of the doctor (P.W.10)), it is difficult to hold that it was a case of homicidal death. 5. The prosecution, in order to prove charges framed against the accused persons, examined altogether 11 witnesses. The evidence of the doctor (P.W.10) has already been discussed above. P.W.1 Md. Ahsamuddin Khan, who is a formal witness, has proved Ext.1 formal F.I.R; other witnesses examined by prosecution are P.W.2 Amrendra Singh, P.W.3 Shyamji Singh, P.W.4 Harendra Singh, P.W.5 Shankar Dayal Singh, P.W.6 Chandradeo Singh, P.W. 7 Nandeshwar Singh and P.W.8 Dharmsheela Devi. P.W.7 and P.W.8 are parents of deceased, the unfortunate boy Vishal. P.W.7 is informant of this case. 6 6. P.W.2 has admitted in paragraphs 2 and 10 of his evidence about his relationship with the informant. P.W.3 has also admitted in paragraphs 2 and 21 of his evidence about his relationship with the deceased as well as the informant. P.W.8 is none else than mother of the deceased and wife of the informant. P.W.4 has also admitted his relationship with informant in paragraph 6 of his evidence. P.W.5 Shyamji Singh has admitted his relationship with the informant and the wife of the informant. He is maternal uncle of P.W.8. P.W.4 is cousin of the informant. P.W.4 has admitted in paragraph 6 of his deposition that he is related as brother of the informant. P.Ws. 5 and 6 are own brothers. They also have admitted in paragraph 6 and paragraph 1, respectively, of their evidence about their relationship. Their evidences go to show that they are very closely related to the informant. P.W.7 is father and P.W.8 is the mother of the deceased. 7. The first contention of the counsel appearing for the appellants is that this is a case in which there is no direct evidence either on the point of taking away the victim from the roof of the informant’s house by anyone or giving the child to the accused persons by Parwati Devi who has been awarded death sentence for her conviction under Sections 302 and 364/34 of the Indian Penal Code. No other person than family members closely related to the informant has come forward to support the case of the prosecution on the point of circumstance to show involvement of the accused persons. Even the circumstances, which have been brought by the prosecution by way of evidence of the witnesses, suggest that there are so many missing links in between the alleged taking 7 away of the victim boy from the roof and finally in recovery of the dead body on the next day. There is admitted enmity between the witnesses and the accused persons. In paragraph 11 of his evidence, P.W.2 has admitted enmity with appellant Bishwanath Singh. P.Ws. 7 and 8 have admitted enmity in paragraphs 10 and paragraph 7 of their respective evidence. All these witnesses have admitted that Bishwanath Singh was made accused in a criminal case under Section 377 I.P.C. Victim was Jitendra Singh and P.W.7 was the informant of the case. Other persons were named as witnesses in this case. In that case, Bishwanath Singh was finally acquitted of the charge. Subsequently, Bishwanath Singh’s son was killed in which criminal case was instituted by Bishwanath Singh and these witnesses were named as accused in the case. 8. Mr. Kanhaiya Prasad Singh, Senior Advocate appearing for the appellants has stated that in the given background of the case where all the prosecution witnesses are partisan and closely related to each other and that also when they have deposed in the background of admitted enmity with the accused persons, how reliance can be placed on their evidence for conviction of the appellants, when circumstances have not been proved by them, beyond reasonable doubt. 9. The evidence of P.W.2 is that in the evening of 5.6.1995 pre-marriage celebrations were being solemnized of his cousin Arbind Singh. In that connection he went on the roof of Nandeshwar Singh. He had gone there to spread carpet along with Rameshwar Singh to make space for dinner. Children who were sleeping at that time on the eastern side of the roof of the house were brought to 8 the western sides. Carpet was being spread over the roof for the feast of the guests. After completion of the Ist round of feast, Parwati Devi had removed the plates for cleaning the ground. She continued to do her work, for sometime, but subsequently, when searched, she was found missing. Dinner completed at 11 P.M. and then mother of Vishal came on the roof of the house and searched him, but he was not found. She informed her husband P.W.7 about missing of the child. P.W.7 along with others started searching the child here and there but he was not found. It has been admitted by P.W.2 that on disappearance of the child, they had suspicion against Bishwanath Singh and others, who are inimical to the informant but out of fear, their names were not disclosed, even before the police. Evidence of P.W.2 is that in the night of occurrence, there were near about 100 persons assembled for dinner. This has been admitted by P.W.2 that he came down from the roof only when dinner completed at 11 O’ clock but till then he had no knowledge about the disappearance of the child. It has also come in the evidence of this witness that the place from where the dead body of the child was recovered, is also within the temple premises. He had also admitted that he did not disclose names of the accused persons to any one due to apprehension that the child might be killed. 10. P.W.3 Shyamji Singh is the maternal uncle of P.W.8 i.e. mother of the deceased. His evidence is that at about 9.30 P.M. he had gone to ease himself. When he was returning back he saw Bishwanath Singh, Ramprit Singh, Raju Singh and Pradeep with a child on the shoulder of Bishwanath Singh. They were going towards north of the 9 village. He enquired from Bishwanath Singh as to where he was going and he replied that the child is being taken for some treatment. Thereafter he came at the Dalan of the informant (P.W.7), took his dinner and after taking dinner he went to sleep. When he was at his house he heard the alarm that Vishal has disappeared. He has admitted in his evidence that he took dinner in the last batch near about 11 O’ clock. After coming to his house, he did not meet anyone. On the next day in the morning he remained at his residence till 11 O’ clock and only when Investigating Officer came he went at the door of Nandeshwar Singh. This witness, who is maternal uncle of P.W.8 and very close to the informant, did not go to enquire about the child till 11 A.M. on the next date even after hearing the rumour about disappearance of the child and also having seen accused Bishwanath Singh with a child at 9 O’ clock. He did not disclose this fact to anyone that he has seen Bishwanath going with a child. In court he has not disclosed that the dead body of the child which was discovered on the next day in the evening, was of the same child whom he had seen on the shoulder of Bishwanath Singh. 11. P.W.4 Harendra Singh is another eye-witness who had also claimed to have seen Bishwanath and other accused with a child in the night of occurrence. P.W.4 has deposed that on 5.6.1995 at 9.00 P.M. when he was going to ease out, he saw Ramprit Singh, Bishwanath Singh, Raju Singh and Pradeep Singh going towards north in haste. Bishwanath Singh had a child on his shoulder. The child was wrapped in a cloth. On that very night at about 11 O’ clock alarm was raised regarding disappearance of the child of 10 Nandeshwar Singh. On the next day the dead body of the child was recovered from well in his presence. The Inquest report was prepared by the Sub-Inspector on which he and one Sant Bilash Singh put their signatures, (Exts. 2 and 2/4). The evidence of this witness P.W.4 is that Nandeshwar Singh is related to him as brother, as per village relationship. He went to the house of Nandeshwar Singh at 8 O’ clock to attend the feast. Thereafter he came from his house. In paragraph 1 of his deposition P.W.4 has stated that he saw Bishwanath Singh and others at about 9 P.M. with the child, when he was going to ease out. This goes to show that after taking dinner he went to ease out and seen Bishwanath and others with child. P.W.4 has further deposed that he had seen the accused persons in the flash of the torch light. What makes his statement doubtful that even though he came to know about the disappearance of the child in the night itself he did not go to the house of accused persons to verify as to who was that child and where the child was taken away. He did not disclose this fact to anyone that he had seen Bishwanath Singh carrying a child. In paragraph 11 he has stated that in that very night at 11.30 P.M. he met Nandeshwar Singh (P.W.7) but he did not disclose this fact to him. In paragraph 12 of his deposition he has stated that for the first time he made such statement before the Investigating Officer after one and half months of the occurrence. In paragraph 6 P.W.4 has admitted that during this period he has remained in the village itself. This witness has also not stated that the child whose body was recovered on the next day was same whom he saw in the company of the accused. In sum and substance, on consideration of the 11 evidence of P.Ws. 3 and 4 it transpires that the identity of the child who was seen in the company of the accused persons has not been established. 12. So far as P.W.5 Shankar Dayal Singh is concerned, his evidence is that till 11 O’ clock in the night of 5.6.1995 he was on the roof of Nandeshwar Singh where child was sleeping. In the night when Parvati was not found on the roof of the house, he went to her house because she had left without taking meal. His evidence is that when the dinner was going on, Parvati Devi was frequently coming from downstairs to upstairs because she was engaged for cleaning work. Except this, there is nothing in the evidence of P.W.5 to connect Parvati with kidnapping of victim child. 13. P.W.6 Chandradeo Singh in paragraph 10 of his evidence has admitted that in the night of the occurrence no one had seen the child being taken away by anyone. It has been admitted by him that immediately after disappearance police was not informed. This question was put to him as to whether child was on the roof when he had gone to take the meal his answer was that he did not notice it. So there is no specific evidence in deposition of P.W.6 that either he had seen Parvati Devi taking away the child or doing any suspicious act to connect her with disappearance of the child, except that in between the completion of dinner she disappeared. For the first time disappearance of child was noticed when P.W.8 had gone to feed milk to her child, till then no suspicion was made against Parvati that she kidnapped the child. 14. P.W.7 Nandeshwar Singh is the informant of this case. His evidence is that till the dinner was finished no 12 one had taken notice of disappearance of the child. At 11 O’ clock in the night when his wife came on the roof for feeding the child Vishal and he was not found, then only search was made at several places. He has also admitted that children sleeping in the eastern side of the roof of the house were removed to the western side but it has not been stated that Parvati, in any manner participated in removing children from eastern to western side. The evidence of P.W.7 is that Parvati, while on the roof was collecting plates when dinner was going on. He has also stated that since Parvati Devi without informing his family members left the place, he had confirm opinion that she had taken away the child and given him to Bishwanath Singh, with whom he has enmity. P.W.7 has not stated in his evidence that Parvati was seen either in lifting or taking away the child and giving the child to the accused persons or to any one in conspiracy with other accused. There is no evidence to show that there was any consultation in between Parvati and Bishwanath for kidnapping of the child. 15. P.W.8 Dahrmsheela Devi, mother of the deceased is also not specific on the point of kidnapping. She has stated that she laid her son to sleep on the roof at 7 O’ clock in the night. Thereafter, she became engaged in other works. Thereafter she went on the roof to feed the child at about 11 P.M. and then only she detected that her child was not present. She has stated that search was made in the village in the night but has not disclosed the places where search was made. From the evidence of P.W.8 as well evidence of P.W.4 and P.W.3 it transpires that in spite of disappearance of a child, the normal activities 13 were going on in the family peacefully. P.W.8 has admitted that on 6.6.95 in the evening Barat of his bother-in-law went for solemnization of marriage, and family members joined the Barat party. 16. Counsel for the appellants has submitted that the evidence of P.Ws. 3 and 4 that they saw the accused persons in the company of a “child” at 9 P.M. to 9.30 P.M. in the night of 5.6.95 is not sufficient to fasten the accused persons with the charge of Section 364 of the Indian Penal Code for the reason that these witnesses have not stated even in the court that the child with whom they saw accused persons was the child who disappeared and subsequently whose dead body was recovered from well. Since identification of the child itself has not been established, the accused persons cannot be held guilty of kidnapping of the child whose dead body was recovered on the next day. For roping the accused persons with the charge of Section 364/34 of the Indian Penal Code, it was essential that identity of the kidnapped child should have been established. It has been submitted by the counsel for the appellants that this is a case where there is no direct evidence either on the point of kidnapping or on the point of murder of child Vishal. This is a case in which conviction is based on circumstantial evidence. So far as conviction under Section 302 of the I.P.C. is concerned, for that there was no evidence on record as none of the witnesses has stated that the appellants have killed the child. The evidence of the doctor (P.W.10) as well as Exts. 3 and 6 on record shows that the cause of death was not ascertained. Unless it is proved that it was a case of homicidal death in which the appellants 14 participated, they could not have been convicted under Section 302 of the I.P.C. The trial court has convicted the appellants merely on conjectures, surmises and presumptions. There being no legal evidence to connect the appellants with the death of the child, the judgment of the trial court for their conviction under Section 302 of the I.P.C. is against the evidence on record and such judgment must be set side by this Court. 17. Counsel for the appellants has further submitted that so far as Section 364 of the I.P.C. is concerned it is based on circumstantial evidence. In a case of circumstantial evidence, it is well settled that the circumstance from which conclusion of guilt is drawn should be fully proved and such circumstance must be conclusive in nature. All the circumstances should be complete and there should be no lacuna in the chain of circumstance. The circumstances must be consistent and pointing towards only hypothesis of the guilt of the accused and are totally inconsistent with their innocence. In the present case, there are many gaps in the chain of the circumstances. The first gap is that no one had seen Parwati Devi taking away