DEATH REFERANCE No.1 OF 2008 Reference made under Section 366 of the Code of Criminal Procedure vide Letter No. 110 dated 24.12.2007 for confirmation of death sentence awarded to the convict under judgment and order dated 18/20.12.2007, passed by Sri Umesh Chandra Mishra, Additional District and Sessions Judge, Fast Track Court No. 5, Rohtas (Sasaram) in Sessions Trial No. 220 of 2006/ Trial No. 29 of 2007, arising out of Nasariganj P.S. Case No. 30 of 2004. THE STATE OF BIHAR----------------------------Appellant Versus CHANDAN KUMAR SON OF RAJENDRA PRASAD, RESIDENT OF VILLAGE HARIHARGANJ, P.S. NASRIGANJ, DISTRICT –ROHTAS --------Condemned Prisoner WITH CR. APP (DB) No.56 OF 2008 CHANDAN KUMAR SON OF RAJENDRA PRASAD, RESIDENT OF VILLAGE HARIHARGANJ, P.S. NASRIGANJ, DISTRICT -ROHTAS-----CHANDAN KUMAR -----------------------Appellant Versus THE STATE OF BIHAR---------------Respondent WITH DEATH REFERENCE No.2 OF 2008 Reference made under Section 366 of the Code of Criminal Procedure vide Letter No. 109 dated 24.12.2007 for 2 confirmation of death sentence awarded to the convicts under judgment and order dated 18/20.12.2007, passed by Sri Umesh Chandra Mishra, Additional District and Sessions Judge, Fast Track Court No. 5, Rohtas (Sasaram) in Sessions Trial No. 39 of 2005/ Trial No. 225 of 2007, arising out of Nasariganj P.S. Case No. 30 of 2004. THE STATE OF BIHAR------------------Appellant Versus 1. CHHOTAN KHAN, SON OF HASIM KHAN, RESIDENT OF VILLAGE NASRIGANJ, P.S. NASRIGANJ, DISTRICT- ROHTAS 2. ARBIND KUMAR, SON OF RAM CHANDRA SINGH, RESIDENT OF VILLAGE NASRIGANJ, P.S. NASRIGANJ, DISTRICT- ROHTAS 3. NANHKUT CHAUDHARY @ SHYAMJI CHAUDHARY SON OF RAJENDRA CHAUDHARY RESIDENT OF VILLAGE HARIHARGANJ, P.S. NASRIGANJ, DISTRICT- ROHTAS AT SASARAM ------Condemned Prisoners WITH CR. APP (DB) No.34 OF 2008 GYANI PRASAD, SON OF RAJENDRA PRASAD RESIDENT OF VILLAGE HARIHARGANJ, P.S. NASRIGANJ, DISTRICT- ROHTAS AT SASARAM -------------------Appellant Versus THE STATE OF BIHAR-----------------------Respondents 3 WITH CR. APP (DB) No.36 OF 2008 NANHKUT CHAUDHARY @ SHYAMJI CHAUDHARY @ NANHKUT, SON OF RAJENDRA CHAUDHARY RESIDENT OF VILLAGE HARIHARGANJ, P.S. NASRIGANJ, DISTRICT- ROHTAS AT SASARAM ---------- Appellant Versus THE STATE OF BIHAR---------------------------Respondent WITH CR. APP (DB) No.51 OF 2008 ARBIND KUMAR SON OF RAM CHANDRA SINGH, RESIDENT OF VILLAGE NASRIGANJ, P.S. NASRIGANJ, DISTRICT- ROHTAS ---------------------Appellant Versus THE STATE OF BIHAR-------- -------Respondent WITH CR. APP (DB) No.59 OF 2008 3. CHHOTAN KHAN SON OF HASIM KHAN, RESIDENT OF VILLAGE NASRIGANJ, P.S. NASRIGANJ, DISTRICT- ROHTAS ----------------------Appellant 4 Versus THE STATE OF BIHAR------------- --------------Respondent WITH CR. APP (DB) No.116 OF 2008 SONU KUMAR, SON OF SURENDRA PRASAD, RESIDENT OF VILLAGE HARIHARGANJ, P.S. NASRIGANJ, DISTRICT ROHTAS ---------------------Appellant Versus THE STATE OF BIHAR--------------------Respondent WITH CR. APP (DB) No.137 OF 2008 PRADEEP KUMAR SAH @ PRADEEP KUMAR SON OF BASANT KUMAR, RESIDENT OF NASRIGANJ (ROHTAS), P.S. NASRIGANJ, DISTRICT ROHTAS ---Appellant Versus THE STATE OF BIHAR------------------Respondent -------------- For the Appellants :M/s Kanhaiya Prasad Singh, Krishna Prasad Singh, Senior Advocate, Abhay Kumar Singh No.1, Ajay Kumar Tiwari, Shailendra Kumar 5 Singh, Mithilesh Kumar Singh & Parmatma Singh, Advocates For the Appellant Pradeep Kumar Sah @ Pradeep Kumar :Mr. Anil Kumar Singh, Amicus Curaie For the State :M/s Lala Kailash Bihari Prasad, Sr. Advocate, S.N. Prasad & Ajay Mishra, A.P.Ps. For the Informant :M/s Rajnikant Singh, Satyendra Kumar Singh & Angad Kunwar, Advocates P R E S E N T THE HON'BLE MR. JUSTICE C.M. PRASAD THE HON'BLE MR. JUSTICE V.N. SINHA V. N. Sinha, J. Death Reference Case No. 1 of 2008 and Cr. Appeal No. 56 of 2008 arise out of judgment/ order of sentence dated 18/20.12.2007, passed by Sri Umesh Chandra Mishra, Additional District and Sessions Judge, Fast Track Court No. 5, Rohtas (Sasaram) in Sessions Trial No. 220 of 2006/ Trial No. 29 of 2007. Death Reference Case No. 2 of 2008 and Cr. Appeal Nos. 34, 36, 51, 59, 116, 137 of 2008 arise out of judgment/ order of sentence dated 18/20.12.2007, passed by Sri Umesh Chandra Mishra, Additional District and Sessions Judge, Fast Track Court 6 No. 5, Rohtas (Sasaram) in Sessions Trial No. 39 of 2005/ Trial No. 225 of 2007. As the aforesaid two judgments have been rendered in connection with Nasariganj P.S. Case No. 30 of 2004, both the References and the seven appeals have been heard together and are being disposed of by this common judgment. 2. Under judgment and order dated 18/20.12.2007, passed in Sessions Trial No. 220 of 2006/ Trial No. 29 of 2007, appellant Chandan Kumar has been convicted for the offence under Sections 302/149, 364A and 201 of the Indian Penal Code and has been sentenced to death with further direction to pay a fine of 5,000/- ( Five thousand). Under judgment dated 18/20.12.2007, passed in Sessions Trial No. 39 of 2005/ Trial No. 225 of 2007, Nanhkut Chaudhary @ Shyamji Chaudhary @ Nanhkut, Arbind Kumar, Chhotan Khan, Gyani Prasad, Sonu Kumar and Pradeep Kumar Sah @ Pradeep Kumar have been convicted for the offence under Sections 302/149, 364A, 201 and 120B of the Indian Penal Code. Out of the aforesaid six appellants, Nanhkut Chaudhary @ Shyamji Chaudhary @ Nanhkut, Arbind Kumar and Chhotan Khan have been sentenced to death with direction to pay a fine of 7 5,000/- ( Five thousand) each. Appellants Gyani Prasad, Sonu Kumar and Pradeep Kumar Sah have been sentenced to undergo rigorous imprisonment for life with further direction to pay a fine of 5,000/- ( Five thousand) and in default to undergo rigorous imprisonment for one year for their conviction under Sections 302/149 of the Indian Penal Code.. For conviction under Section 120B of the Indian Penal Code, they have been asked to undergo rigorous imprisonment for ten years with further direction to pay a fine of 3,000/- ( Three thousand) and in default to further undergo rigorous imprisonment for six months. For conviction under Section 201 of the Indian Penal Code, the aforesaid three appellants have been asked to undergo rigorous imprisonment for five years and to pay a fine of 1,000/- ( One thousand) and in default to further undergo rigorous imprisonment for three months. The sentences have been directed to run concurrently and no separate sentence has been passed for conviction under Section 364A of the Indian Penal Code. 3. The prosecution case, as set out in the fard-e- beyan of the Informant, Jai Prakash Gupta, son of Dhruv Narain Sah of Mohalla Hariharganj, P.S. Nasariganj, District 8 Rohtas dated 24.3.2004 is that he serves as a Manager in the Liquor Shop of Manish Sah at Raigarh in the State of Orissa where he telephonically learnt during the night on 21.3.2004 from his father that his son Ujjawal has perhaps been made to disappear by some one. Having received such information, he came and learnt from his father, Dhruv Narain Sah and mother, Mandodari Devi that on 21.2.2004 at about 6.00 P.M. Ujjawal was playing outside the house along with Raju Kumar, son of Ramji Prasad Sah alias Domi Sah, resident of Mohalla Hariharganj. Mother of the Informant asked Ujjawal to come inside the house, but he continued playing. Soon thereafter Ujjawal disappeared, mother and father of the Informant searched for him in the vicinity, but Ujjawal was not found, whereafter information was sought about the whereabouts of Ujjawal from Raju Kumar, son of Ramji Prasad Sah alias Domi Sah, who informed that sometime before he had seen Ujjawal and Chandan going along with another person. Ujjawal was even calling Raju Kumar to accompany him but Raju Kumar refused to accompany Ujjawal, as he was doing his home work, whereafter parents of the Informant went to Chandan, son of Rajendra Prasad, who is the agnate of the Informant 9 and sought information about the whereabouts of Ujjawal, who refused to divulge any information about the whereabouts of Ujjawal. It is further averred in the fard-e- beyan that there is land dispute between Rajendra Prasad, his son, Chandan and the Informant and his parents. Clod was thrown at the house of the informant during the previous Holi festival at their instance while betel shop of Chandan Kumar situate by the side of the house of informant remained open leading to altercation with the mother of the informant, in retaliation, Chandan Kumar conspired for disappearance of Ujjawal with intention to kill him. 4. Having investigated the case, police submitted charge-sheet for the offence under Sections 302/149, 364A, 201 and 120B of the Indian Penal Code against the aforesaid seven appellants and Rajendra Prasad, Gyani Kumar Sulesh Kumar and Surendra Prasad. In support of the accusation, Investigating Agency cited number of witnesses, namely, Ganesh Prasad, resident of the locality, Raju Kumar, who was playing with the victim boy just before his disappearance, Mandodari Devi, mother of the informant, who had asked the victim to come inside the house just 10 before his disappearance and searched for him in the vicinity after his disappearance as also sought information about the victim from Raju Kumar, Chandan Kumar and Rajendra Prasad, Kashi Prasad Gupta, brother of the informant, Jitendra Prasad alias Jitendra Kumar, cousin of informant, Bharat Prasad Sah, uncle of the informant, Jai Prakash Gupta, the informant and father of the victim, Sushma Kumari, the Investigating Officer, Dr. Arvind Kumar Singh, Medical Officer, but did not include Sunita Devi, wife of the younger brother of the informant, although she is said to have informed her mother-in-law, Mandodari Devi soon after the disappearance of Ujjawal that she had seen Chandan from roof top holding the hand of Ujjawal and going together. Rajendra, Surendra, Gautam, Gyani, Salekh and Sonu were following the two. After submission of the charge-sheet, cognizance of the offence(s) alleged was taken, appearance of the accused persons secured, case was committed to the court of Sessions for trial. Two trials were conducted. In Sessions Trial No. 220 of 2006, appellant Chandan Kumar was tried and in Sessions Trial No. 39 of 2005, six other appellants along with four others were tried. 11 The trial court framed charges for the offence under Sections 302/149, 364A, 201 and 120B of the Indian Penal Code. 5. In Sessions Trial No. 39 of 2005, prosecution examined the aforesaid ten witnesses, out of whom, Ganesh Prasad and Raju Kumar did not support the prosecution case and were declared hostile. The other witnesses, namely, Mandodari Devi, Kashi Prasad Gupta, Jitendra Prasad alias Jitendra Kumar, Bharat Prasad Sah, Jai Prakash Gupta, Sushma Kumari, Dr. Arvind Kumar Singh and Sunita Devi have supported the prosecution case in both the trials. In Sessions Trial No. 220 of 2006, all the aforesaid witnesses were examined, except Ganesh Prasad and Raju Kumar. 6. Mandodari Devi, mother of the informant has been examined as P.W.3 in Sessions Trial No. 39 of 2005 and as P.W.4 in Sessions Trial No. 220 of 2006. She has supported the occurrence and has asserted that the occurrence took place about three years earlier. On the date of occurrence at about 6.00 P.M., she was sitting along with her husband near the entrance of her house. Rajendra, Gyani, Gautam, Chandan, Surendra, Salekh and Sonu were also present at the entrance of their houses. Her grandson Ujjawal aged about 12 years, was playing with Raju. Near about dusk, she 12 asked Ujjawal to come inside the house to resume studies, but Ujjawal continued playing. Mandodari Devi, however, returned inside the house to light the lamp. Having lit the lamp, she came to the entrance of her house, but did not find Ujjawal, Raju, Rajendra, Chandan, Gyani and quietness prevailed all around. She searched for Ujjawal in the vicinity and asked about his whereabouts from Raju, who informed her that Chandan had taken Ujjawal in the lane where an unknown person was standing. Mandodari along with her husband searched for Ujjawal in the lane, but his whereabouts could not be known. She returned home where her daughter-in-law, Sunita Devi, wife of Om Prakash informed her that she had seen from the roof top Chandan holding the hand of Ujjawal and going along with him. Mandodari also instructed the family members to telephonically inform her three sons in Orissa about the disappearance of Ujjawal. Sister-in-law of Mandodari, Saraswati Devi was called from adjoining village Sato Amiyawar, who later telephonically informed the three sons of Mandodari as also other relatives about the disappearance of Ujjawal. Mandodari further stated that having received telephonic information, her three sons arrived from Orissa 13 three days after the occurrence, whereafter Jai Prakash, the eldest son of the witness went to the Police Station to solicit assistance from the police and lodged the present case. Mandodari further asserted that the kidnappers of Ujjawal telephonically called upon the household to pay the ransom amount of Rs. Ten/ five lacs, whereafter her son Jai Prakash, as per the instruction of the accused persons, went to Dhawapul at 12 noon and paid the ransom amount. In exchange, the accused persons handed over T. Shirt/ apparel of Ujjawal to Jai Prakash. Jai Prakash informed her that Gyani, Chandan, Sonu, Nanhkut Chaudhary, Chhotan Khan, Pradeep and Arbind had taken money from him and had also asked him to wait near the bus stand with further undertaking that they shall ensure that Ujjawal boarded the bus. Mandodari further stated that the accused persons had accepted before the police at the Police Station that Ujjawal was killed by them by tying a rope around his neck, his body is buried in a ditch, which is full of watercress. They also dug out the carcass of Ujjawal and handed over to the police. The witness identified the accused persons in court, namely, Gyani, Rajendra, Sonu, Nanhakut and Chhotan Khan as kidnappers of Ujjawal. The witness has stood the 14 test of cross-examination and stated in paragraph 13 that she, her husband and daughter-in-law, Sunita Devi, wife of the informant informed her three sons after their arrival from Orissa the manner in which the occurrence was committed. She also stated in paragraph 14 that before the arrival of the sons from Orissa, police was not informed about the occurrence. In paragraph 15 of the cross- examination, she stated that neither she nor her husband had asked Saraswati Devi or men coming from her house to inform the police about the occurrence. She further confirmed in paragraph 16 that she met the police three days after the occurrence when her sons arrived. In paragraph 18 of the cross- examination, she stated that she had informed the Investigating Officer that her son, Jai Prakash, the informant had informed her that Arvind, Pradeep, Chandan, Nanhkut, Chhotan Khan had taken the ransom money. In paragraph 18 of the cross- examination, she categorically denied the suggestion that Arvind, Pradeep, Chhotan Khan, Gyani, Chandan, Sonu have been falsely implicated. In paragraph 19 of the cross- examination, she has accepted that her father-in-law Maujilal had one brother, Hiralal. Accused Rajendra Prasad is son of Hiralal whose sons Gyani, Gautam and Chandan 15 are also accused in the case. In paragraph 20 of the cross- examination, she has admitted that there was land dispute between her family and the family of Rajendra Prasad, which was decided 20-21 years earlier in favour of Rajendra Prasad, for the present, they were on dining and visiting terms with each other. In paragraph 22, it has been stated that her house is surrounded by the house of the accused persons and in front of her house, there is vacant land over which the children of the vicinity play. In paragraph 24, she has stated that Chandan was arrested three days after the occurrence. In paragraph 25, she has stated that her statement was recorded by the police also three days after the occurrence. In paragraph 26, she stated Surendra and Rajendra did not visit her house after the occurrence. In paragraph 27, she has confirmed that she and her husband, both were shocked and did not speak to each other about the occurrence. 7. Kashi Prasad Gupta, brother of the informant has been examined as P.W.4 in Sessions Trial No. 39 of 2005 and P.W.1 in Sessions Trial No. 220 of 2006. He also arrived with informant from Orissa on 23.3.2004 between 7.30 -8.00 P.M. when he was informed about the occurrence 16 by his mother, Mandodari Devi, father and sister-in-law, Sunita Devi that Ujjawal was playing with Raju on 21.3.2004 in front of the house. While Ujjawal and Raju were playing, Rajendra Prasad, Gyani Prasad, Gautam Kumar, Chandan Kumar, Surnedra Prasad, Salekh Kumar and Sonu Kumar were also present at the entrance of their house. After the evening set in, his mother Mandodari Devi asked Ujjawal to come inside the house to resume studies, but Ujjawal continued playing, his mother Mandodari, however, came inside to light the lamp. Having lit the lamp, she came outside not to find Ujjawal, Raju. Rajendra Prasad, Gyani Prasad, Gautam Kumar, Chandan Kumar, Surendra Prasad, Salekh Prasad, Sonu Kumar were also not present at the entrance of their houses and quietness prevailed all around. His mother searched for Ujjawal in the vicinity and asked for his whereabouts from Raju who informed her that Ujjawal went along with Chandan and one unknown person was in the lane, Ujjawal had also asked Raju to accompany him, but he did not. The witness further stated that his mother searched for Ujjawal, but he could not be found, his sister-in-law, Sunita Devi had seen from the roof top Chandan going along with Ujjawal and such information 17 was conveyed to his mother. In paragraph 2, the witness confirmed that having arrived, he went to the house of Rajendra and Surendra to know about the whereabouts of Ujjawal, but he could not meet any male members in the house of Rajendra Prasad and the family members of Surendra Prasad informed him that they are unaware about the occurrence. In the morning, on 24.3.2004 the Officer-in- charge came at his residence and Jai Prakash lodged the criminal case. Ransom call(s) were received on 1.4.2004 demanding 30/10/5 lacs. Finally the accused persons agreed to release Ujjawal on payment of one lac. On 7.4.2004, I along with Jai Prakash and cousin Jitendra Prasad Gupta went to Bikramganj Dhawapul for payment of the ransom amount, but on account of the presence of the patrolling party near Dhawapul, the witness and others could not contact the accused persons. Having waited for 1½ hours, the witness and others returned back. Again on 8.4.2004 telephone call was received asking them to come near Dhawapul at about 1.00 P.M. In compliance of such instructions, witness along with informant Jai Prakash and Jitendra went to Dhawapul with the ransom amount where the accused persons called them and after the three covered 18 some distance, accused persons asked the witness and Jitendra to wait. Witness identified six accused persons present at Dhawapul, namely, Chhotan Khan, Arvind Kumar, Pradeep Kumar, Gyani Prasad, Nanhkut Chaudhary and Sonu. Chhotan Khan took the bag containing the ransom amount of one lac and handed over the T-shirt of Ujjawal. All the accused persons present warned the witness and his two brothers not to disclose, failing which they along with Ujjawal shall be killed. Accused present at the Dhawapul also assured that Ujjawal shall return within two hours. Witness and others waited for return of Ujjawal for 4-5 days, but when he did not come back, Police was informed the names of the accused persons, Chhotan Khan, Arbind, Pradeep, Nanhkut and Gyani. On 27.4.2004, the Officer-in- charge arrested Chhotan Khan, Arvind Kumar, Pradeep and Sonu and recorded confessional statement of Chhotan Khan, who confessed to have kidnapped Ujjawal on 21.3.2004 and to have killed him on the banks of Sone river by tying a rope around his neck and buried his dead body in a ditch beneath the watercress. Chhotan Khan further confessed that his accomplice in the crime, who had conspired for the abduction of Ujjawal were Rajendra Sao, Surendra, Gautam 19 and Salekh and occurrence was committed with the active assistance of Arbind, Pradeep, Sonu, Gyani, Chandan. The witness also confirmed that he was present at the police station when Chhotan Khan was recording his confessional statement. The witness further stated that Officer-in-charge along with accused persons, Chhotan, Arbind, Pradeep and Nanhkut went to the bank of river Sone at Dehri and recovered the dead body of Ujjawal at the instance of the aforesaid four accused persons in presence of the witness, Jai Prakash Gupta and Bharat Sao, who identified the dead body. The witness has stood the test of cross-examination and has again reiterated in paragraphs 13 and 14 of the cross-examination that after his arrival on 23.3.2004, he had gone to the house of Ramji Prasad, Baijnath, Soni, Ajay, Sanjay Sah and others as also to the house of Rajendra Prasad and Gyani on 23.3.2004 itself, but none had told him anything about the occurrence. In paragraph 15, the witness confirmed that his father had given information to the police on the basis of which station diary entry was recorded on 22.3.2004. He also confirmed that fard-e-beyan was lodged on 24.3.2004 in the morning and name of Chandan Kumar was also disclosed to the police on the same day. In 20 paragraph 19 of the cross-examination, he confirmed that he does not have the list of telephone number wherefrom ransom call was received. Verbal information about the ransom call received was being conveyed to the Officer-in- charge. In the same paragraph the witness admitted that advance information about the instructions dated 7/8.4.2004 of the accused persons to come with the ransom amount of one lac at Dhawapul was not given to the officer-in-charge. In paragraph 21 of the cross-examination, he has confirmed the name of his relatives from whom One lac was arranged for payment to the accused persons. In paragraphs 22 and 23 witness further confirmed that dead body of Ujjawal was a carcass, which was identified by him on account of overlapping incisor (front) teeth and fracture sign on the forehead of Ujjawal. After recovery of the dead body, the Officer-in-charge prepared a recovery memo. In the same paragraph, the witness has denied the suggestion that Rajendra and his two sons have been falsely implicated. In paragraph 24, the witness accepts that at the time of his arrival on 23.3.2004, his relatives were at his residence, who informed him that station diary entry has been made in regard to the occurrence. The witness confirmed in 21 paragraph 26 that information about non-payment of One lac to the accused persons as ransom amount near Dhawapul on 7.4.2004 was not given to the Officer-in-charge. In paragraph 27 of the cross-examination, the witness confirmed that accused Arbind Kumar and Pradeep Kumar are co-villagers and are known to him from much before. In the same paragraph and in paragraph 31, it is further stated that even after payment of ransom amount on 8.4.2004 when Ujjawal did not return, information was given in the police station on 12.4.2004 disclosing the names of the accused persons. The witness, however, states that he does not remember whether he or his other brothers and relatives had gone to the police station on or before 9/11.4.2004. In paragraph 28, the witness confirmed that besides the present case, accused Arbind and Pradeep are not accused in any other case. In paragraph 29, the witness states that on 7/8.4.2004 when he had gone to Dhawapul for payment of ransom amount, other strangers were not present in its vicinity. In paragraph 32, the witness confirmed that he had informed the Officer-in-charge about the complicity of accused Arbind Kumar and Pradeep Kumar in the crime and denied the suggestion that Arbind Kumar and Pradeep 22 Kumar have been falsely implicated in the case for the reason that they are the neighbours of the witness. In paragraph 34 of the cross-examination, the witness accepted that the accused persons while accepting the ransom money at the Dhawapul had covered their face with towel and witness was at a distance of 20 feet from the accused persons. In paragraph 35, the witness accepted that he does not remember the size and the mark of T-shirt of Ujjawal, which remained in the house during the period between