IN THE HIGH COURT OF JUDICATURE AT PATNA Govt. Appeal (DB) No.16 of 1992 Arising out of PS.Case No.-127 Year-1985 Thana-Sikandra District- MUNGER =========================================================== The State of Bihar .... .... Appellant Versus 1. Vijay Singh @ Vijay Kr. Sharma. 2. Tanik Singh @ Awadh Kishore Prasad Singh. Both residents of village Lohanda (Lohna), P.S. Sikandra, District Munger (Jamui). .... .... Respondents with =========================================================== Criminal Appeal (DB) No. 219 of 1992 Arising out of PS.Case No.-127 Year-1985 Thana-Sikandra District- MUNGER =========================================================== 1. Krishnandan Singh. 2. Rajnandan Singh. 3. Ramnandan Singh. All sons of Late Bindeshwari Singh. All residents of village Lohanda, P.S. Sikandra, District Jamui. 4. Bhagwan Singh @ Bhagwan Prasad Sharma, son of Late Lala Prasad, resident of village Tulsigarh, P.S. Chandi, District Nalanda. .... .... Appellants Versus The State of Bihar .... .... Respondent with =========================================================== Criminal Appeal (DB) No. 271 of 1992 Arising out of PS.Case No.-127 Year-1985 Thana-Sikandra District- MUNGER =========================================================== Shyamnandan Singh, son of Late Chhotelal Singh, resident of village Lohanda, P.S. Sikandra, District Jamui. .... .... Appellant Versus The State of Bihar .... .... Respondent =========================================================== Appearance: Govt. Appeal (DB) No. 16 of 1992 For the Appellant : Sri Dilip Kumar Sinha, APP For the Respondents : Sri Akhileshwar Prasad Singh, Sr. Advocate Sri Sanjiv Kumar Singh, Advocate Cr. Appeal (DB) No. 219 of 1992 with Cr. Appeal (DB) No. 271 of 1992 For the Appellants : Sri Naresh Dikshit, Advocate Sri Kunal Tiwary, Advocate For the State : Sri Dilip Kumar Sinha, APP Sri Abhimanyu Sharma, APP For the Informant : Sri Ajay Kumar Thakur, Advocate Sri Ravi Kumar, Advocate =========================================================== Patna High Court G. APP. (DB) No.16 of 1992 dt.26-03-2015 2 / 38 2 CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA and HONOURABLE SHRI JUSTICE AMARESH KUMAR LAL C.A.V. JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) Date: 26-03-2015 Seven accused persons were put on trial by the learned Sessions Judge in Sessions Case No. 65 of 1986 by being charged under Sections 323, 302, 364, 449, 450, 380/34 and 120B of the Indian Penal Code. Accused Vijoy Singh @ Vijoy Kumar Sharma and Tanik Singh @ Awadh Kishore Prasad Singh had distinctly been charged under Sections 342/34 of the Indian Penal Code. The judgment in the case was delivered by the learned 12th Additional Sessions Judge, Munger on 05.06.1992 by which two accused, namely, Vijoy Singh @ Vijoy Kumar Sharma and Tanik Singh @ Awadh Kishore Prasad Singh were acquitted of all the charges, five other accused persons who are the appellants in the two criminal appeals, namely, Krishna Nandan Singh, Raj Nandan Singh, Ram Nandan Singh, Shyam Nandan Singh and Bhagwan Singh @ Bhagwan Prasad Sharma were convicted of committing offences under Sections 364/34 and 302/34 of the Indian Penal Code and thus, they were also acquitted of charges under Sections 449, 450, 380, 323 and 120B of the Indian Penal Code. The five appellants, named above, who had been convicted under Sections 364/34 and 302/34 of the Indian Penal Code were heard on Patna High Court G. APP. (DB) No.16 of 1992 dt.26-03-2015 3 / 38 3 sentence and each of them was directed to suffer rigorous imprisonment for life under each of the two counts, the sentences being directed to run concurrently. Those five appellants have preferred the two criminal appeals against their conviction and sentence imposed upon them. While the State of Bihar has preferred a separate appeal for challenging the acquittal of Vijoy Singh @ Vijoy Kumar Sharma and Tanik Singh @ Awadh Kishore Prasad Singh. These appeals thus, arising out of the same judgment, have been heard together and are being disposed of by this common judgment. 2. Neelam, the deceased, was married to Ashok Kumar Singh who happened to be the son of Ganesh Prasad Singh (P.W.3) and brother of Ramanand Singh (P.W.18) the informant of the case. The informant stated that Neelam, her husband Ashok Kumar Singh and the informant the elder brother of her husband were residing in the house of her father situated at Simultala which belonged to late Jang Bahadur Singh the father of Neelam. It was stated that while the informant, the deceased and her husband were residing in some part of the house, some other parts of it had been let out to tenants who were also in occupation of their tenanted portion. It was stated by the informant that on the 30th of August, 1985 at about 10 p.m. he was sitting on the rickshaw of one Patna High Court G. APP. (DB) No.16 of 1992 dt.26-03-2015 4 / 38 4 Doman Tanti (not examined) and was talking to the said Doman Tanti, Daso Mistri and a blind man deceased Neelam, at that time was sleeping inside the house and her husband Ashok Kumar Singh had gone to his native place Ghonghasa. All on a sudden the seven accused persons, named in the First Information Report, which included the five appellants of the two criminal appeals and the two respondents of the government appeal came there along with 15 unknown persons from north. As soon as the accused persons had arrived, respondent Vijoy Singh @ Vijoy Kumar Sharma is said to have pulled down the informant (P.W.18) from the rickshaw over which he was sitting. At that time Vijoy Singh @ Vijoy Kumar Sharma was accompanied by 2-3 unknown persons of Lohanda. The informant raised alarms shouting as to why they were committing such highhandedness upon which two unknown persons pointed pistols towards him and commanded him to keep silent, else, he will be shot dead. Those accused persons caught the informant, assaulted him with fists and slaps and took him towards the north side of the house near a well and kept him confined there. In the meantime, appellant Krishna Nandan Singh got the doors of the entry of the house unlatched through Kumud Ranjan Singh (not examined) and entered inside it with 5-7 persons and dragged Neelam out of the house. While dragging Neelam out of the room, the accused persons also picked up her two Sarees Patna High Court G. APP. (DB) No.16 of 1992 dt.26-03-2015 5 / 38 5 with two blouses and two petticoats besides a pair of her slippers. After Neelam had been brought out, four persons lifted Neelam by catching her legs and hands and started moving towards Lohanda. The informant raised alarms as a result of which people of the mohalla as also his uncle Chandra Shekhar Prasad Singh (P.W.4), Vinay Kumar Singh @ Ganauri Singh (P.W.2) and Ram Naresh Singh (P.W.5) came to the place of occurrence and saw and identified the accused persons. Those witnesses also told the accused persons as to why they had committed such an act but the accused persons did not give Neelam up and took her towards north. The informant stated that no one dared follow the accused persons on account of frighten by the pistols they had been carrying and further that besides being identified the accused who had been named by him in the First Information Report he could identify those also who participated in commission of the offence. 3. The motive for commission of the offence, as per the informant, was that let Jang Bahadur Singh who happened to be the father of Neelam had no son and his house which was situated at Simultala was in possession of his elder daughter Neelam. In order to divesting Neelam of the house and the other immovable properties of her father, the accused persons had committed her abduction in order to killing her. It was further stated that some litigation was pending in between the wife of late Jang Bahadur Patna High Court G. APP. (DB) No.16 of 1992 dt.26-03-2015 6 / 38 6 Singh and his other co-sharers. 4. The First Information Report of the case (Ext.16) was drawn up at the statement of Rama Nand Singh (P.W.18) the informant of the case by Uday Kant Pathak (P.W.21) who was the Officer-in-Charge of Sikandara police station which had the jurisdiction over the place of occurrence. At the time of lodging the First Information Report, as may appear from the very document as also from the very first line of the evidence of P.W.21, P.W.18 was accompanied by Vinay Kumar Singh @ Ganauri Singh (P.W.2) and Chandra Shekhar Prasad Singh (P.W.4) as also by Ram Naresh Singh (P.W.5) out of whom Vinay Kumar Singh @ Ganauri Singh (P.W.2) and Chandra Shekhar Prasad Singh (P.W.4) had signed the document as witnesses to the fact that the report had been lodged in their presence. P.W.21 thereafter took up the investigation of the case and came to the place of occurrence at 11.20 p.m. He made search for Neelam but could not find trace her house. He thereafter went to the village of accused persons at Lohanda and reached there at 11.30 p.m. and again searched for the lady Neelam but without any success. He searched for the accused persons also searched their houses but could not find anything on search of their houses nor could he find any of the accused persons. The search memo has been marked ‘A’ for identification. The Investigating Officer again came to Patna High Court G. APP. (DB) No.16 of 1992 dt.26-03-2015 7 / 38 7 Simultala at 1 a.m. and recorded the statements of Chandra Shekhar Prasad Singh (P.W.4), Vinay Kumar Singh @ Ganauri Singh (P.W.2), Ram Naresh Singh, Kumud Ranjan Singh (not examined) and Chando Devi (also not examined). He thereafter inspected the place of occurrence which was a house facing west situated east of the macadamized road. There was a room situated in front of the house and there were four other houses located on the Verandah of the house. There was a passage which was leading to the courtyard of the house in the eastern and that passage was located north of the southern room. The building was two parts from inside. One part of the house was accessible by the above noted lane but the southern part of it was accessible by another lane situated in the southern part of the house and to the west of that passage was situated a room which was interconnected with another room. There were two interconnected rooms and there was no exit towards the courtyard or on the outer side of the house. There were other two rooms which were on the south of the passage and those rooms opened in the passage and the rooms which were opening into the passage, in one of them the Investigating Officer found a Chowki, a cot, a rack fixed in the wall with some books, one Algani (a wooden of bamboo structure meant for hanging clothes) in which, as per the Investigating Officer, was residing Neelam the deceased. In the same room the Patna High Court G. APP. (DB) No.16 of 1992 dt.26-03-2015 8 / 38 8 Investigating Officer found a Khadi Chadar kept in a Jhola and some make-up articles. There was a rope fixed in the passage which was also used for putting clothes on it and he found some clothes hanging by it. To the east of the passage was another room facing north and in that room also, the Investigating Officer found a cot, bed, books, boxes etc. There was another room in the Aangan which was facing east and it was being used as the kitchen and he found fuel materials kept inside it. The lavatory was situated on the north-eastern corner of the courtyard. The southern most room which was located on the Verandah of the house and which was facing west was, as per the evidence of P.W.21, in occupation of the Block Education Extension Officer who was a tenant of the house whose office was being run in the two interconnected room situated north of the passage and signboard to that effect was also hanging there. Some records of the office of the Block Education Extension Officer was also there whereas in the northern most room located on the Verandah, the Investigating Officer found some bags of cement stored there. Fallow land was towards the north of the house whereas a well was located on the south-eastern corner of the house. Another well was also located on the north-eastern corner in the fallow land. The house was surrounded by house of other persons on all its sides. 5. The Investigating Officer stated that while he was still Patna High Court G. APP. (DB) No.16 of 1992 dt.26-03-2015 9 / 38 9 in the process of inspecting the place of occurrence, he received an information at 7.45 a.m. that the dead body of Neelam was lying in a field situated west of the road which was in front of the house and as such he went there and found the dead body at 8 a.m. He held inquest upon the dead body and prepared the inquest report (Ext.2) in presence of witnesses, namely, Chandra Shekhar Prasad Singh (P.W.4) and Nand Kishore Singh (P.W.1). The field where the dead body was found was situated at a distance of 1000 yards north of the place of occurrence house of Jang Bahadur Singh and was at a distance of about 400 yards in the west of the road running in between Lakhisarai and Sikandara. The dead body was found lying 10 feet north of the southern ridge and 2 feet east of the western road. Paddy plants were standing there and water was available in the field here and there. The standing paddy crop was found trampled and the blood was mixed with water which was found by the Investigating Officer. The house of the accused persons was at a distance of about 1½ k.m. from that field and village Achmiyo (sic) was located at a distance of about 1 k.m. to the west of the field and Sikandara Block Development Office was at a distance of about 1/2 k.m. straight way from the field. To the south of the field in which the dead body was fond was located another field of one Lalo Yadav and the Investigating Officer found on the northern ridge of that field a petticoat, two blouses, Patna High Court G. APP. (DB) No.16 of 1992 dt.26-03-2015 10 / 38 10 one chester (brassier) and two Sarees and he seized those articles in presence of the witnesses, above named, by preparing seizure memo (Ext.5). 6. P.W.1 found the dead body lying by its back and the head was tilted towards right, the eyes were half open and the left hand of the deceased was bent towards the head while her right hand was under her body. Her left leg was placed at her right leg and her right hand was crashed and a paddy plant was in the grasp of that right hand in the right palm. The throat was slit in its front and only blouse was over her body and the lower part of her body was naked except that a red coloured Saree had been placed at the private part of the dead body. The lock of hair had been band into with the help of a ribbon and there was a ring like ornament in her nose and a gold ring was placed in one of her fingers of her right hand. The Investigating Officer requisitioned P.W.9 Dayanand Mishra to take the photograph of the deceased and that photograph was marked by the learned trial Judge as Ext.9 and that is available on the lower court records with the exhibited documents which indicates that the description of the dead body is fully true. The Investigating Officer sent the dead body by preparing the dead body challan for post-mortem examination through Constable 707, Ram Bilash Mandal. The Investigating Officer thereafter recorded the statements of witnesses, obtained Patna High Court G. APP. (DB) No.16 of 1992 dt.26-03-2015 11 / 38 11 the post-mortem report and the copy of the photograph and took steps for enforcing the appearance of the accused persons. After receiving the post-mortem examination report, the Investigating Officer made an enquiry from the doctor through Ext.17 as to whether the deceased had been raped and the Deputy Superintendent of Sub-divisional Hospital, Jamui through Ext.18 pointed out that there was no evidence of rape committed on the dead body. The Investigating Officer after recording the statements of witnesses and finding material sufficient sent the five appellants and the two respondents up for their trial which resulted in the impugned judgment. 7. The defence of the appellants was many folds. It was suggested that they did not commit an offence alleged and they had been roped in on account of the admitted enmities and litigation. They appeared also challenging that Jang Bahadur Singh was not married to Premlata @ Prabhawati the sister of P.W.7 Rajendra Prasad Singh rather he was married to a different lady and further that Neelam the deceased was not the daughter of late Jang Bahadur Singh from the said Premlata @ Prabhawati. 8. In support of the charges, the prosecution examined as many as 27 witnesses out of whom Nand Kishore Singh (P.W.1) was a witness to the inquest as also to the seizure of the clothes which were found lying near the dead body. Vinay Kumar Singh Patna High Court G. APP. (DB) No.16 of 1992 dt.26-03-2015 12 / 38 12 @ Ganauri Singh (P.W.2) was an eye-witness to the whole occurrence with Chandra Shekhar Prasad Singh (P.W.4) and Ram Naresh Singh (P.W.5) who had supported P.W.18 Ramanand Singh the informant of the case. Ganesh Prasad Singh (P.W.3) the father of the informant and the father-in-law of deceased Neelam, as per his evidence, who gave statement inter alia on the fact that Neelam was married to his second son Ashok Kumar Singh and that she was residing in the house and after learning about the incident, he rushed to Simultala and requested the police to take necessary steps for tracing out Neelam but the police was indifferent towards his request and further that the dead body of Neelam was found in the paddy field and the scene was extremely painful. P.W.6 Suresh Prasad Singh was a teacher who had given evidence on the fact that Neelam was residing in the house in question which originally belonged to her father late Jang Bahadur Singh and further that he knew Neelam because late Jang Bahadur Singh had been his colleague and he used to go to the house in question because Ram Chhabila Singh the Block Education Extension Officer was a tenant in that house. Rajendra Prasad Singh (P.W.7) was the maternal uncle of the deceased Neelam and he gave evidence on the motive part of the occurrence as also on the fact that Neelam was residing in the house with her husband and the informant and that P.W.7 was also residing there in order Patna High Court G. APP. (DB) No.16 of 1992 dt.26-03-2015 13 / 38 13 to extending protection to Neelam who had the threat over life. Baleshwar Prasad Singh (P.W.8) was a witness of formal character who produced the school admission register and this Court could not understand as to what was the purpose in producing the school admission register as the evidence of P.W.8 did not appear necessary for proof of the charges. Dayanand Mishra (P.W.9), it has already been noted, the photographer who was hired by P.W.21 the Investigating Officer to take photograph of the dead body which photograph had been marked Ext.9 on behalf of the prosecution. P.W.10 Ashok Kumar Choudhary was a witness who went to the place of occurrence after knowing about the occurrence while Brahmdeo Singh (P.W.11) gave statement that he had acted as a mediator to negotiate the marriage of Neelam to Ashok Kumar Singh while Umesh Singh (P.W.12) also gave statement on the same fact, like, Ashok Kumar Choudhary (P.W.10) that he also went to the place of occurrence after learning about the occurrence. Satya Narain Singh (P.W.13) had held post-mortem examination on the dead body of Neelam while Ram Balak Singh (P.W.14), Ram Bilash Singh (P.W.15) had given evidence that they had participated in the marriage of Neelam and had identified their photographs from the group photographs which had also been brought on record as Exts. 12 series. Kapildeo Singh (P.W.16) had given evidence on the marriage of Premlata @ Prabhawati the Patna High Court G. APP. (DB) No.16 of 1992 dt.26-03-2015 14 / 38 14 mother of Neelam to let Jang Bahadur Singh and had stated that after the death of Jang Bahadur Singh, Premlata @ Prabhawati was residing at the residence of P.W.7 Rajendra Prasad Singh. Kameshwar Thakur (P.W.17) was the Pandit who had performed the marriage of Neelam with Ashok Kumar Singh. P.W.19 Constable Ram Vilash Mandal had taken the dead body for post- mortem examination while P.W.20 Satya Narain Singh had given evidence on the marriage of Jang Bahadur Singh and Neelam his daughter. Anhach Singh (P.W.22) also gave statement on the marriage of Neelam and Kiran Kumari (P.W.23) the younger sister of Neelam who had given evidence not only on the marriage of Neelam, has also stated that Neelam was residing in the house and she has overheard the appellants’ plan to murder Neelam. Vinod Kumar (P.W.24) was a witness of formal character who had given evidence that the document which was requisitioned by the learned trial Court was searched by him and the document was produced before the trial court by him. P.W.25 Bhuneshwar Prasad had produced the nomination papers on the requisition of the trial court from the office of the District Superintendent of Education where he was posted as an Assistant. P.W.26 Ranvijay Singh was also a witness of formal character who had produced the Vakalatnama filed by advocates of this Court in Civil Revision No. 575 of 1988 which was preferred before this Court. P.W.27 Damodar Singh Patna High Court G. APP. (DB) No.16 of 1992 dt.26-03-2015 15 / 38 15 was again a witness of formal character who had produced the copy of the bail order. It may be pertinent to point out at this very place itself that the evidence of P.Ws. 24 to 27 was of no consequence as regards the proof of the charges. 9. The defence also examined seven witnesses. D.W.1 Anirudh Singh had proved two Kewalas which were executed in favour of late Jang Bahadur Singh and Chhote Lal Singh. This Court again could not find out the relevance of production of these two Kewalas. D.W.2 Madan Mohan Gupta also produced and we could not even find out from the whole bunch of prosecution evidence as to what was the basis in context to which D.W.2 was examined and had produced the Kewalas. D.W.3 Ashok Kumar Singh was the Deputy Superintendent of Police in Jamui and has supervised the case whereas D.W.4 D.N. Gautam was the Superintendent of Police, Munger and who had also supervised the case. D.W.5 Gajadhar Singh was examined to say that the office of Sri Krishna Mahavidyalaya, Lohanda of which institution, he was a treasurer was located in the house of Chhote Lal Singh. D.W.6 Dasarath Prasad Singh was a teacher in the Primary School, Naungarh and he had produced a certificate which was in the handwriting of one Ram Bilash Singh the School Sub-Inspector. This Court again failed to appreciate as to what was the purpose of Patna High Court G. APP. (DB) No.16 of 1992 dt.26-03-2015 16 / 38 16 examining D.W.6 and producing the certificate. D.W.7 Fauzdari Singh was the father-in-law of appellant Shyam Nandan Singh and he had given evidence on alibi of that appellant by stating that on the day of occurrence appellant Shyam Nandan Singh was at Barahiya with his family. 10. Shri Naresh Dixit, advocate has appeared on behalf of the appellants in two appeals while Shri Ajay Kumar Thakur, advocate appeared on behalf of the informant in the batch of appeals. The State was represented by Shri