1 DEATH REFERANC No.15 OF 2008 - - - - - Reference under Section 366 of the Code of Criminal Procedure made by the Ist Additional Sessions Judge, Siwan, by his letter no.354 dated 10.9.2008 in connection with Sessions Trial No. 417 of 2006. … … State Versus RAMDEO PRASAD … … Condemned Prisoner For the Reference &: Shri Ashwani Kumar Sinha, A.P.P. The State For the respondent: Shri Ashwani Kumar Singh,Sr.Adv, ( Amicus Curiae ) P R E S E N T THE HON'BLE SHRI JUSTICE C.M.PRASAD THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha,J.- The solitary convict Ramdeo Prasad was tried by the Ist Additional Sessions Judge, Siwan, in Sessions Trial No.417 of 2006 for the charges under Sections 376 and 302 of the Indian Penal Code. By the judgment of conviction dated 6th of September, 2008, the respondent was held guilty of committing the two offences and was sentenced to death by order dated 9th of September, 2008 and, as such, the present Death Reference under Section 366 of the Code of Criminal Procedure for confirmation of the order of sentence passed by the learned Judge. 2. The respondent has not preferred an appeal, understandably because he could challenge the findings upon which the orders of conviction and sentence are based as if he had preferred an appeal. Finding that the respondent is under sentence of death, the Court requested Shri Ashwani Kumar Singh, Senior Advocate of 2 the Court, to assist it in hearing and disposing of the present Death Reference, as may appear from order dated 19.8.2009 passed by this Court. 3. The prosecution case is contained in(Ext.4) the Fardbeyan of the informant Md. Kamruddin Mian( not examined). It was stated by him that all of his family had retired to their beds after having taken their meals in the night intervening 20th and 21st of December, 2004. He had gone into his room whereas others had slept on the verandah. His four-year-old daughter Laila Khatoon was sleeping with the mother of the informant on one side of the bed created by straw whereas the wife of the informant was on the other side of the same bed with a one and half year old child. The informant awoke at about 12 in the night to attend to the call of nature and when he came at the verandah he found that Laila Khatoon was not by the side of his mother and, as such, he awoke his wife and mother and enquired abut Laila Khatoon. They could not give any satisfactory replies. The informant told his neighbours about the child going missing and upon that P.W.2 Suman Kumar Sah, one of his next door neighbours, informed the informant that he had just seen the present respondent moving headily towards east with a child in his lap who was crying. The informant and his co-villagers set out in the pointed direction and when they had gone about 1 K.M., they heard stomping sound of 3 feet and they moved in that direction from which the stomping sound was coming. The informant claimed that this respondent was seen running away with the informant‟s daughter who immediately threw the child into a wheat field. When the informant and others went near the child Laila Khatoon, she was found moaning and bleeding from her private part. The informant alleged that he was confident that the present respondent had committed rape upon the child and in order to killing her, he was taking her to some unknown place where he could conceal her. 4. On the basis of Ext.4, the police registered the F.I.R. and P.W.4 S.I. Mahboob Alam Khan took up the investigation of the case. P.W.4 inspected the place of occurrence and recorded the further statement of the informant besides taking the statements of other witnesses, like, P.W.3 Rukhsana Khatoon, P.W.1 Nasir Mian and others. The fardbeyan(Ext.4) of the informant was recorded in the hospital while the child was being treated there and P.W.4 learnt on 22.12.2004 that the child died. As such, he prepared inquest report and sent the dead body for post-mortem examination. The police submitted chargesheet sending up the present respondent for trial. It is how the respondent was tried and was directed to be hanged by his neck till he was dead. 4 5. There does not appear a clear-cut defence of the respondent except that he was falsely implicated by the villagers, as may appear from his statement recorded under Section 313 of the Code of Criminal Procedure, when he stated that the villagers came together to brand him as an insane person to falsely rope him in the present case. 6. For proving the charges framed against the respondent, the prosecution examined six witnesses. The informant of the case, as may appear from the judgment of the trial Judge, could not be produced in spite of all efforts made by the court and police. It appears from the judgment as also from the record of the lower court, specially from the orders passed on 28.8.2008 that the police reported to the court that the informant Md. Kamruddin Mian had gone to some foreign land and it was not possible for the police to produce him for his evidence and on consideration of the report as appears indicated in the above order passed by the court in the trial record, the court closed down the prosecution evidence on that particular date, i.e., 28.8.2008. 7. So far other witnesses are concerned, Nasir Mian(P.W.1), Suman Kumar Sah(P.W.2) and Rukhsana Khatoon(P.W.3) who is also the mother of the deceased child have supported the fact that the child had gone missing and that a search was made and that P.W. 2 Suman 5 Kumar Sah stated that he had seen a man carrying a child towards east whereafter they went in that particular direction in search of the man and the child. P.Ws.1 and 3 Nasir Mian and Rukshana Khatoon, respectively, have stated that it was P.W.2 Suman Kumar Sah who had stated to the informant and others accompanying him that the man carrying the child was the present respondent Ramdeo Prasad. P.W.2 Suman Kumar Sah, in spite of having supported all other facts, had dumped the prosecution on identification of the accused by resiling from his earlier statement made before the police during investigation that he had named the present respondent as the person who was identified by him, while he was carrying away the child. This has been a major issue raised by learned Senior counsel assisting the Court and I propose to reply to it in the light of the provisions of law and in the light of other facts coming on record through the evidence of the witnesses a little later. As indicated above, Sub-Inspector of Police Mahboob Alam Khan( P.W.4) is the Investigating Officer of the case whereas S.I. Birendra Kumar Pandey(P.W.6) is the Officer who recorded the fardbeyan and endorsed the investigation to be done to P.W. 4.( P.W.5) Dr. Seema Choudhary who was one of the members of the Board of three Doctors holding the autopsy on the dead body, prepared Ext.3 the post- mortem examination report and she has given evidence on 6 the finding of the Board and the real cause of death of the deceased. 8. The learned trial Judge accepted the evidence of the witnesses after placing reliance upon each of them and held that in spite of there being no witness on the part of the incident of lifting of the child as also on commission of sexual assault on her, the circumstances, quite strong in character, appeared from the evidence and those formed a complete chain pointing towards the guilt of the accused and completely eliminating any probability of his being innocent. The learned trial Judge inferred five circumstances out of the evidence and then went on to record the order of conviction so as to basing the sentence under consideration. 9. Learned Senior counsel while addressing us on the merits of the judgment and order of conviction left no stone unturned to convince us that the present could not be a case in which the respondent could have been, firstly, found guilty and, secondly, inflicted the ultimate sentence in law. A huge number of reasons were assigned by the learned Senor counsel to castigate the findings recorded by the learned trial Judge. It was contended that the Doctor who first attended upon the victim, on being brought to the hospital, was not examined nor any register/other documents of the hospital 7 created by the Doctor first attending upon her were brought forward before the learned trial Judge so as to satisfying him that indeed the little child had been sexually assaulted. It was contended that the evidence of doctor, namely, Dr. Seema Choudhary ( P.W. 5) does not indicate that there was any offence of rape committed by the respondent on the little child. It was contended that the other members of the Board of Doctors who held autopsy on the dead body, were not examined and this Court could, as such, draw an adverse inference against the prosecution. The other evidence on committing rape upon the child would have been by getting the present respondent medically examined and producing the report of the Doctor so as to testifying to the above but that has also not been done and that has seriously prejudiced the case of the respondent. 10. The contention next was that the evidence of the witnesses indicated that there was dense fog in the cold night and the informant along with other witnesses were moving without any source of identification though one of the witnesses had stated that someone had a torch light, but the same was not produced before the Investigating Officer. In support of the contention on means of identification, the attention of the Court was drawn to the decisions of the Court reported in 2005(3)P.L.J.R.43 Sunil Singh & Anr. Vs. The 8 State of Bihar and 1990(1)P.L.J.R.755 Mangal Singh & 5 ors. Vs. State of Bihar and Ors. The contention was that the informant was not examined nor any of the witnesses who signed (Ext.4) the fardbeyan at the time of its recording and who appeared the person who had stated that a search of the child was made in the fateful night were produced. Even, the grand mother, with whom the child was sleeping, was not examined and many of the villagers who had accompanied the informant were also not produced. It was contended that the evidence of the above persons was necessary for unfolding the prosecution narration and, as such, the Court could draw adverse inference against the prosecution. Learned Senior counsel castigated the judgment and findings recorded therein on the ground that inquest report was not produced. 11. It was next contended that non-examination of the informant is a material defect in the prosecution case and mere filing of a petition in the court by the police indicating as if the informant was living out side India appears not sufficient. The situation of non- examination of the informant gets further compounded, contended the learned Senior Counsel, because evidence was to be led that steps were really taken for getting the informant into the witness box for his evidence. Some decisions were also cited in support of the contention for drawl of adverse inference which are reported in 9 (2005) 13 S.C.C. 624 Pratap Singh and another Vs. State of M.P. and (2006) 12 S.C.C. 321 Ritesh Chakarvarti Vs. State of M.P. 12. Learned Amicus Curiae, lastly, contended that it could not be a case in which the extreme penalty of death could be inflicted upon the respondent and under circumstances more serious than the present one the Supreme Court either commuted the sentence of death to that of the life imprisonment or sentenced the appellant before them to suffer rigorous imprisonment for life. A couple of decisions, like, ((2008) 1 S.C.C.(Cri.) 766 Bishnu Prasad Sinha and another Vs. State of Assam and (2008)2 S.C.C.(Cri.) 264 Alok Nath Dutta and others Vs.State of West Bengal were placed for our consideration. 13. Shri Ashwani Kumar Sinha, learned Additional Public Prosecutor replying to the contentions of learned Amicus Curiae submitted that it is not that the prosecution did not produce the witnesses who were named in the chargesheet, like, Hasbuddin and Gumani Pandit or any other else. It was submitted by drawing the attention of the Court to the order dated 26.7.2007 appearing at page 19 of the Paper Book, that warrant of arrest for production of witnesses was sent with a reminder to the Superintendent of Police and consequent upon the issuance of warrant of arrest Gumani Pandit and 10 Hasbuddin, the two witnesses cited in the chargesheet, were produced under arrest before the court on 5.10.2007. It is indicated by order dated 30.10.2007 appearing at page 21 of the Paper Book that the prosecution produced two witnesses named above besides Ram Chhabila Prasad and the in-charge Public Prosecutor filed a petition that the three witnesses produced on 30.10.2007 were not inclined to support the prosecution story and, as such, he was giving them up and was not in favour of examining them. That petition was disposed of by order dated 13.11.2007 and the three persons were discharged from giving evidence in the case. It was contended, as such, that the P.Ws. were produced and in that light there could not be any drawl of adverse inference against the prosecution. 14. Learned Additional Public Prosecution contended that the witnesses examined in the case including the Doctor, fully substantiated the charges and there was no scope for interfering with the findings arrived at by the learned trial Judge. Shri Sinha, learned Additional Public Prosecutor further submitted that sentencing is a serious jurisdiction of the court and one could hardly submit that it has always to be proportionate to the crime which was committed by an accused. 15. The issue of non-examination of the informant as a witness of the prosecution was vigorously 11 agitated before us by learned Senior counsel appearing as Amicus Curiae in the case. The learned trial Judge was also faced up with the above contention while hearing arguments and he has dealt with, in some detail, the contention, as may appear from the impugned judgment at its page 9. The learned trial Judge has held that it was of no consequence whether the informant was examined or not. I endorse the view taken by the learned trial Judge by pointing out that the evidence of a particular witness, be his the informant of the case or other witnesses, is simply to support or not to support the charges. The informant of the case holds a place primal in the scheme of prosecution case. He happens to be the person who initiates it and his statement could be the basis for launching the prosecution of an accused. The other aspect of the matter could be that the statement of an informant which could be in the form of F.I.R. is the basic prosecution version upon which the whole of the edifice of charges is created and their corroboration is considered judicially by looking to the elementary prosecution version in the light of the criticism the defence could be targeting against the whole charges and the prosecution story. It remains a piece of material-not an evidence- which is sought to be corroborated by the evidence of the informant and other witnesses. In a case in which the informant does not come forward to support 12 the charges and if the prosecution does not satisfy the court by placing before it reasonable explanation for his non-examination, the court could frown with some disdain at the prosecution and may in a suitable case draw adverse inference against it. In other words, if the court has before it a reasonable explanation placed by the prosecution for non-production of the informant, it may not draw adverse inference against the prosecution and could proceed to consider the evidence of other witnesses to record a finding of the charges being proved, disproved or not proved. This should be the approach of courts in a case in which the informant is not coming forward to support the charges or if he had not been produced by the prosecution in spite of its efforts made in that behalf. 16. I have pointed out in some earlier paragraph of the judgment as to what was the reason for non-examination of the informant. The lower court orders are relevant to the above context and a reference may be made to the order passed by the learned trial Judge on 28.8.2008( at page 27 of the Paper Book) which points out that the Public Prosecutor had filed a petition annexing therewith an application of the Officer-in-charge of Pachrukhi Police Station, which had investigated the case, that because the informant Kamruddin Mian was away to some other country it was not possible to produce him 13 at that particular time for his evidence. The learned trial Judge ordered the closure of the prosecution evidence holding that there was no prospect of the informant being produced in near future for his evidence on account of the above reason and other witnesses had been examined by the State. The accused was in custody. He was facing a serious charge and he had the right of getting expeditious justice as a matter of his fundamental right. Unreasonable delay or impediments which could be beyond the control of the court or the agency responsible for production of witness, to me, appears good ground which may convince a court not to linger the proceedings by keeping it pending without any progress if the informant was not likely to come before it for his evidence for reasons that he was not likely to be produced on account of undue delay or necessary expenses. The court, under the above circumstances, may proceed with the trial and dispose it of by looking to the evidence of other witnesses. This could be the only reasonable view under the circumstances as presently obtained in the present case. 17. This could be the place when I must consider the argument of the learned Senior counsel on non-production of other material witnesses of the prosecution also. It was contended that the evidence of other persons, like, Hasbuddin, Gumani Pandit and Ram 14 Chhabila Prasad was material for unfolding of the prosecution case and their non-examination adversely affects the findings recorded by the learned Judge and, as such, the court may draw adverse inference on account of their non-examination. 18. The learned Additional Public Prosecutor has replied to the above contention by making reference to the orders passed by the learned trial Judge on different dates and that appears available to this Court on the Paper Book as also on the records of the trial court. It appears that the witnesses were not coming forward for their evidence and, as such, the court had issued warrant of arrest non-bailable against them and accordingly two persons Hasbuddin and Gumani Pandit were produced by the police under arrest in execution of the warrant before the trial court on 5.10.2007. The two witnesses were let off on execution of their personal recognizance bonds for appearing on the next date. Accordingly, the two, as also P.W. Ram Chhabila Prasad, appeared before the court on 30.10.2007 and their attendance was filed by the learned Public Prosecutor along with a petition that they appeared not supporting the prosecution story and, as such, the Public Prosecutor was not desirous of examining them and was giving them up. The learned trial Judge passed an order dated 13.11.2007 by discharging the three persons from giving 15 evidence on the reason indicated by the learned Public Prosecutor. The Public Prosecutor has the right to examine the witnesses, specially the witnesses whose examination is necessary for unfolding the prosecution case. He has a right not to examine a particular witness if he finds that the witness may not be supporting the charges and, rather, would be damaging the case of the prosecution on account of being gained over as appeared the stand taken by learned Public Prosecutor. What witnesses could be supporting or not supporting could initially be known to the Public Prosecutor only and he is the only arbiter as regards the production of witness during a trial in support of the charges. If he finds that the examination of a particular witness may not be in the interest of the prosecution, he has the right to give up any of them. Above all, only those witnesses are required to be examined whose examination appears necessary for unfolding the prosecution story. It is not necessary that the number of witness should be multiplied by examining other witnesses. The evidence of a single witness might appear to the Public Prosecutor sufficient to unfold the prosecution story as also to prove the charges. He may not be forced to produce all witnesses if he shows good and satisfactory reasons for non-examination of a particular witness. This appears the case here too. I do 16 not find any case made out for drawing adverse inference either for production of the witnesses who were indeed produced before the court below or for their non examination. The ground appeared sufficient and the reasons satisfactory. 19. Under the above circumstances, the decisions cited by the learned Senior counsel reported in (2008)1 S.C.C. 766,(2008) 2 S.C.C. 264, (2005) 13 S.C.C. 624 and ( 2006) 12 S.C.C. 321 are not applicable to the present situation. 20. P.W.3 Rukhsana Khatoon is the wife of the informant and the mother of the deceased child. Her evidence states that in the night of the occurrence she as also her deceased child were sleeping with her mother- in-law. The informant was sleeping inside the room and he woke up and enquired from her as to where was Laila Khatoon. A search for Laila Khatoon was made during which course Suman Sah( P.W.2) stated to them that it was this respondent Ramdeo Prasad who was seen by him going away with the girl. The villagers and her husband, the informant, set out on search of the girl and saw the present respondent throwing away the child in the field and running away. The child was brought to the house who was unconscious and bleeding from her private parts and was further taken to Sadar Hospital, Siwan, for treatment where she died. The witness stated that this respondent 17 had done similar acts earlier with other girls also. In cross-examination P.W.3 has stated that Suman Sah met them at his Darbaja. P.W. 2 Suman Sah has supported the story that when he woke up to urinate at about 11-11.30 P.M. in the night of the occurrence, he found a man going towards the field of one Ram Bachan Mishra with a child in his lap. He went to sleep again. 10-20 minutes after, the informant, Nasir Mian, P.W. Gumani Pandit and Ram Chhabila Prasad (both not examined) were passing through the road in front of his house upon which P.W.2 also woke up and went near them when he learnt that the daughter of Kamruddin Mian ( informant) had been taken away by some one upon which P.W. 2 Suman Sah informed them that he had seen a man moving with a child just a few moments earlier. P.W. 2 Suman Sah also accompanied them in search of the child. He stated that the child was found in the field of one Sachchidanand Mishra who was bleeding from her private parts and that the child was taken to Siwan, for treatment where she died. Thus, the major part of the occurrence is supported by P.W. 2. He supports that some enquiries were made from him also or he had volunteered some information himself as per which a man