DEATH REFERANC No.1 OF 2001. With CR. APPEAL NOS. 61 & 139 of 2001. - - - - - Reference made under Section 374 of the Code of Criminal Procedure by the 2nd Additional Sessions Judge, Aurangabad, vide Letter No.11 dated 16th January 2001 and appeals against the judgment dated 11th January, 2001 and sentence dated 16th January 2001 passed by Sri Pankaj Srivastava, 2nd Additional Sessions Judge, Aurangabad in S.Tr.No. 211 of 1998/8 of 2000. DEATH REFERANC No.1 OF 2001. STATE OF BIHAR Versus 1.KRISHNA SINGH………… ……………………………. Condemned prisoner. with CR. APP (DB) No.61 oF 2001. 1.Sidhi Yadav. 2.Jagdish Ram. 3.Ramashish Ram. 4.Ganesh Ram. 5.Baban Ram. 6.Chuta Ram. 7.Musan Ram. 8.Brahmdeo Paswan. 9.Ramrup Ram. 10.Ramchandra Ram. 11.Mandul Paswan @ Mundul Paswan ------Appellants. Versus STATE OF BIHAR ---------------------Respondent. With CR. APP (DB) No.139 OF 2001 1.Krishna Singh. 2.Suresh Singh -----------------Appellants. Versus STATE OF BIHAR-------------------------Respondents. - - - - - For the Appellants : M.Krishna Prasad Singh, Sr. Advocate. For the State : Mr.Ashwani Kumar Sinha, A.P.P. For the informant : Mr.Kanhaiya Prasad Singh, Sr. Advocate. : Mr.Atal Bihari, Advocate. P R E S E N T THE HON'BLE MR. JUSTICE CHANDRA MOHAN PRASAD THE HON'BLE MR. JUSTICE DHARNIDHAR JHA. C.M.Prasad,J & Dharnidhar Jha,J These appeals are directed against the judgment of conviction and sentence respectively dated 11th January 2001 and 16th January 2001 of the 2nd Additional Sessions Judge, Aurangabad passed in S.T.No. 711 of 1998/8 of 2000 whereby appellant Krishna Singh has been convicted under Section 302 IPC and he has been 2 sentenced to be hanged till death. Death Reference No.1 of 2001 is for confirmation of the death sentence passed against the said convict Krishna Singh. 2. Each of the remaining twelve appellants stand convicted under Section 302/145 IPC, 27 of the Arms Act and 17 of the Criminal Law Amendment Act and respectively sentenced to R.I. for life, R.I. for 3 years and S.I. for 6 months. 3. It is relevant to mention here that earlier death reference and Criminal Appeals with same numbers aforesaid had been filed before this Court against the said judgment of conviction and order of sentence of the said trial court and the death reference and criminal appeals were decided by this Court, vide judgment dated 15th February 2002 whereby the conviction and sentence, as passed by the trial court, was set aside and the appellants were acquitted. 4. It was against the aforesaid judgment dated 15th February 2002 of this Court that the prosecution side represented by Govind Singh filed Criminal Appeal No. 30 of 2003 and Criminal Appeal No. 31 of 2003 before the Hon‟ble Supreme Court against the appellants, excepting appellant Suresh Singh who also had been acquitted by this Court. The two appeals were decided by the Hon‟ble Supreme Court, vide judgment dated 3rd December 2008 whereby the aforesaid judgment dated 15th February 2002 of this Court was set aside on the ground mainly that the analysis of evidence and the conclusions as drawn by this Court was sketchy and the appeals have been remanded to this Court for a fresh consideration and disposal according to law. Accordingly, the death reference and the criminal appeals have been heard afresh and they 3 are being decided by this judgment. 5. Since Suresh Singh was not made respondent in the said Criminal Appeal Nos. 30 and 31 of 2003, before the Hon‟ble Supreme Court, the said judgment dated 15th December 2002 of this Court became final in the matter of acquittal of appellant Suresh Singh, inasmuch as his acquittal was not challenged by making him respondent in the aforesaid two appeals (Cr. Appeal Nos. 30 and 31 of 2003) before the Hon‟ble Supreme Court. The place of occurrence of this case is stated to be the eastern end of the Adari Pul (bridge) near village Maula Nagar situated at a distance of 9 Kms. from Aurangabad Muffasil Police Station. The date of occurrence is 6th August 1997 and the time of occurrence is stated to be 5:00 P.M. The fard beyan of the informant Govind Singh (P.W.2) was recorded on the same day (6th August 1997) at 9:45 P.M. at the P.O. The F.I.R. was registered on 7th August 1997 at 1:00 P.M. The deceased is Madan Singh, full brother of the informant Govind Singh. 6. The prosecution case vide the informant‟s fard-beyan, was that 12-13 days prior to the occurrence, the MCC Committee of the area had sent him a letter through appellant Brahmdeo Paswan promulgating prohibition on cultivation of his land, but he did not take much care of it as he had no enmity with MCC people. On 5th August 1997 appellant Ram Chandra Ram, Ganesh Ram, Ramashish Ram and Sidhi Yadav had come to his house at about 9:00 P.M. and they had stated that the MCC people were calling him in the village orchard but since it was night time, he (informant) did not go there. Further case, as stated in the fard 4 beyan was that that day (6th August 1997) when he (informant) along with his brother Madan Singh (deceased) was returning on a bicycle after purchasing some articles from Aurangabad Bazar and when they reached near Rampur Pul, he (informant) got down from the bicycle as he had to engage some laborers for paddy sowing in his field and the deceased slowly proceeded ahead with the bicycle. As soon as the deceased reached the eastern end of Adari Pul (bridge) lying ahead, the appellants Krishna Singh, Suresh Singh, Ram Chandra Ram, Ramrup Ram, Ganesh Ram, Ramashish Ram, Jagdish Ram, Sidhi Yadav, Mandul Paswan, Brahmdeo Paswan, Chuta Ram, Musan Ram surrounded the deceased from his front and back and they captured him. Thereafter, appellant Suresh Singh fired a shot from his revolver. Then appellant Krishna Singh caught hold of the deceased by his hair and started slitting his neck with a Pasuli. Seeing this, the informant shouted and ran towards village Karma and reaching there disclosed before the villagers about the incident and then he returned to the P.O. with some villagers and he found that the accused persons had already fled away and the deceased was also lying there. The informant claimed that some villagers who were working in the nearby agricultural field might have seen the incident and they would disclose about the same. About the cause of occurrence, it was stated by the informant that his relative Shankar Dayal Singh, the Mukhiya of village Karma was on inimical term with MCC Party as a result of which the Kutchery of Mukhiyajee situated in village Unthu had been set on fire by the MCC People and in connection with that incident, two persons, namely, Babal Ram and Mahendra Yadav of the village had been sent to jail and the MCC People had a suspicion that the informant 5 side had given the names of those two persons to the Police and that out of that grudge, the appellants, who were the active members of MCC Party did commit the occurrence. 7. In order to prove the prosecution case, the prosecution examined nine witnesses. The accused also examined one defence witness. P.W.1 Hawaldar Kanchan Mandal produced the bicycle and the Chappals respectively marked Material Ext-I and Ext-II which are said to have been seized from the P.O. P.W.2 Govind Singh is the informant. P.W.3 Birendra Singh, resident of village Karma is said to be the relative of the informant and it is said that the informant had rushed to this P.W.3 in village Karma from the P.O. and had come back from there to the P.O. with some villagers. P.W.4 Ramraj Singh is the father of the informant and the deceased and he claimed to be working in the field nearby at a distance of about 150 yards from the P.O. and to have come to the P.O. on hearing the sound of firing and the shouting of the deceased and the informant. P.W.5 Narendra Kumar Singh is the son-in-law of P.W.4. 8. P.W.4 has claimed that he along with his two sons-in-law, namely, Narendra Singh (P.W.5) and Ram Kumar Singh (not examined) was working in his field and from there he had rushed to the P.O. with them. But Ram Kumar Singh has not been examined by the prosecution and another son-in-law, namely, P.W.5 does not say to have rushed to the P.O. ,but he stated that hearing the sound of firing, out of fear, he had fled away to his Sasural house in the village. P.W.6 is Dr. Dhirendra Narayan, who held the P.M. Examination on the dead body of the deceased. The P.M. Report was marked as Ext-5. P.W.7 Mahfooz Alam is the I.O. 6 of the case. P.W.8 Mumtaz Khan is a formal witness who had proved the S.D. Entry No.100 dated 6th August 1997, Ext-12 which is said to have been recorded by the Officer In-charge on receiving information about the occurrence and after recording it he had proceeded towards the P.O. P.W.9 Basudeo Prasad is also a formal witness who has proved the fard-beyan and the F.I.R. respectively marked Ext-13 and Ext-14. 9. D.W.1 Shambhu Nath Rai is a Junior Engineer who has stated about the topography and the measurement of the canal and the bridge (Adari Pul) where the occurrence is said to have taken place. 10. Out of the prosecution witnesses, P.W.2 and P.W.4 claim to be the eye witnesses to the occurrence. 11. P.W.2 deposed that on 6th August 1997, at 5:00 P.M. he along with his brother Madan Singh (deceased) was returning on a bicycle from Aurangabad Bazar after purchasing articles. He further deposed that at Rampur Nahar Pul he got down from the bicycle for arranging some laborers for agriculture work and that the deceased proceeded ahead with the bicycle. After some time he (P.W.2) proceeded behind him. He further deposed that when he was close to the Adari Pul (bridge) and the deceased reached on the eastern end i.e. the other side of the bridge, extremists surrounded him from his front and back. He claims to have identified the appellants amongst the extremists and he named them in his evidence. Then he gave a detailed and minute description of the manner of assault stating that Suresh Singh made a sky fire, Ram Chandra, Chutta and Mundul caught hold of the deceased and thrashed him down on the earth. Chuta Ram caught 7 hold of the neck of the deceased. Musan and Baban pressed the chest and abdomen of the deceased on the ground. Jagdish, Sidhi and Ramswarup caught hold of the legs of the deceased and kept it pressing on the ground and Ganesh and Ramashish caught hold of both the hands of the deceased. Then Krishna Singh caught hold of the deceased‟s hair and he started slitting his neck with Pasuli . Mundul assaulted the deceased on the wrist and fingers of right hand as a result of which the skin of the finger was cut. Thus, the informant gives very minute details of the assault and the injuries, even miner injuries like cut of skin as one could have described only when he had watched the occurrence from a close distance with equanimity. But on critical analysis of evidence, in the context of the informant‟ further evidence and the evidence of other witnesses, it will transpire that the informant had no opportunity or occasion to witness the occurrence in order to state about the manner of occurrence and the nature of injuries as stated by him. 12. The informant further deposed at Para-3 that at that time Ramraj Singh (P.W.4), Gajendra Singh and Ram Kumar Singh (both not examined) were working in the nearby field. P.W.4 is the father of the informant, but in his fard-beyan which was recorded at the P.O. after 5 hours of the occurrence, the informant did not mention him (P.W.4) as an eye witness to the occurrence. The informant further deposed that seeing the occurrence, he fled towards village Karma and disclosed to the villagers there about the occurrence and then returned with some residents of the village to the P.O. and that out of them, he knew only Birendra Singh (P.W.3) who admittedly is his relative. He further deposed that the Police (I.O.) had come to the P.O. and he had recorded his fard-beyan. 8 About the cause of occurrence, he has deposed the same thing as stated in his fard-beyan. About the length of the P.O. Bridge, namely, Adari Pul he stated that it was about 300 feet long and it was situated at a distance of about 500 yards from Rampur Pul. At Para-29 of his evidence, he deposed that the deceased had not shouted when he had reached on the eastern end of the bridge, but he had shouted “Mujhe Bachao” when he had been captured by the extremists. At Para-31, P.W.2 deposed that he had not raised any shout at the time when the deceased had been thrashed on the ground and when his neck was slit. Thus, the informant states not to have raised any shout at the time of capturing the deceased. At Para- 44 he further deposed that he had purchased 5 Kg. of Gur and 5 Kg. of potato. Potato was kept in a Jhoja hanging from bicycle and Gur (Juggery) was kept on the carrier tied with a rope. At Para-45 he further deposed that the potato had got smeared with blood on the ground. 13. At Para-59 of his evidence, P.W.2 has deposed that at Chowk in village Karma where he had rushed from the P.O. the people had enquired him about the occurrence and asking him about the occurrence they had also come to the P.O. but he had not disclosed the name of any of the accused/appellants before them. Thus the informant does not disclose the name of any of the appellants before the villagers when they had questioned him shortly after the occurrence. At Para-78 of his evidence he further deposed that when the extremists surrounded the deceased, he (informant) became afraid and after hearing the sound of firing, he became terror striken and he kept standing quietly at his place. Thus, the informant was terror striken on hearing the sound of firing and 9 thereafter he did not proceed further towards the P.O. where the assault had taken place. 14. At Para-28 of his evidence, the informant (P.W.2) has deposed that a person sitting on the eastern end of Adari Pul will not be visible to other persons standing on the western end, i.e. the other side of Adari Pul. This has to be remembered here that the occurrence had taken place on the eastern end of the Adari bridge and the informant claims to have seen the occurrence and to have identified the accused from the western end of the bridge when he had just stepped into the bridge. 15. The P.W.4 who has also claimed to be an eye witness has deposed that on 6th August 1997 at 5:00 P.M. while he along with his son-in-law Narendra (P.W.5) and Ram Kumar (not examined) was working in his field, he heard the sound of firing coming from the eastern end of Adari river. Then he says that he heard the cries of Madan Singh (deceased) and Govind Singh (informant) of “Bachao-Bachao” and thereafter he along with his two sons-in-law rushed towards the P.O. and climbed over the embankment on the canal below the bridge and then he saw the appellants assaulting he deceased. He has stated about the manner of assault and injuries caused thereby. He also stated that he had raised shouts but appellant Suresh Singh had chased him with revolver, hence, he had fled away from there to village Maula Nagar. He has further deposed at Para-3 that Gur and potato lay scattered at the P.O. At Para-5 he has deposed about the motive for the occurrence as stated by the informant. This witness claims to be working in his field at the time of occurrence and to have rushed to the P.O. from there. But at Para-42 of his evidence, he stated he has got a shop at 10 Aurangabad and that there are several other shops around his shop and that on the day of occurrence, he was at his shops. The time of occurrence is 5:00 P.M. which is the normal working hours for the shops when they remaine open and since this witness says that he was at his shop, how can he be expected to be working in the field near the P.O. at the same time. At Para-53 of his evidence, he has stated that after the occurrence, he had started wearing spectacles. Thus, it is clear that at the time of occurrence, his vision was not normal and he needed spectacles to identify or see a thing from a distance. 16. As would appear from the evidence of the I.O. the place of occurrence is on the road on the eastern end of Adari bridge situated on canal over Adari river. P.W.4 at Para-1 has stated that he had rushed to the P.O. and had seen the occurrence by climbing on the embankment of the canal. At Para-44 of his evidence, he further deposed that he had climbed 4 feet on the embankment from the ground. It is relevant to mention here that P.W.5 at Para-18 has deposed that the P.O. road is situated at a height of 15-20 feet on the embankment. 17. P.W.5 is the son-in-law of P.W.4. P.W.4 claimed that he along with his two sons-in-law, namely, P.W. 5 and Ram Kumar Singh had rushed to the P.O. but Ram Kumar Singh was not examined by the prosecution and P.W.5 did not support P.W.4 when he (P.W.5) stated in his evidence that hearing the sound of firing and cries of the deceased and the informant he became afraid and he rushed to his Sasural home in village Maula Nagar. He further deposed at Para-3 that 15-20 minutes thereafter his father-in- law (P.W.4) came back to the house and he disclosed that his son 11 (deceased) had been killed. Then he further deposed that he along with his father-in-law and some co- villagers came to the P.O. and he found the deceased lying there dead with half of his neck slit and injury above his right eyebrow. He further deposed that Gur and potato lay scattered on the P.O. At Para-18 he has stated that there lies a canal over Adari river and the road at the P.O. situates at a height of 15-20 feet on the embankment of the canal. At Para-21 he stated that the mouth of the dead body was gagged with a Gamchha. It is relevant to mention here that the I.O. has not found this as stated by this witness. 18. P.W.3, who is a relative of the informant and resident of village Karma where the informant says to have run away from the P.O., has stated that the informant had come to his village and he had disclosed that his brother (deceased) had been killed. He also stated that the deceased had hurriedly stated some names of the culprits but he does not state about those names as is said to have been stated by the informant. He also deposed that he along with some villagers came to the P.O. and found the dead body of the deceased lying there. He further deposed that some potato as well as a bicycle and Hawai Chappals were lying near the dead body. He stated that he had remained at the P.O. till 9-10:00 P.M. and Police had come there, but his statement was not recorded there. Thus, this witness who is a relative of the informant claims that the informant had come to him and he had disclosed that the deceased had been killed. He stated that some names were hurriedly disclosed by the informant but he was unable to say as to what were those names. 19. P.W.6, the Doctor, who conducted the Post 12 Mortem Examination on the deceased has deposed that he examined the dead body on 7th August 1997 and found the following ante mortem injuries: i) Incised wound over right side of forehead, above right eye-brow to posteriorly about right ear 4”x1” bone deep tapering posteriorly. ii) Incised wound7”x2”x2” in front of neck about thyroid cartilage at both sides of neck. iii) Incised wound at the base of right index finger 2”x ½ ”x bone deep, tapering medially. On dissection, he found as under: a) Skull intact, brain manenges pale, neck cutting of skin deep, fascia, muscle, blood vessel and trachea lying to the cervical vertebra posteriorly, neck intact. b) Thorax: Heart pale, both chambers empty, lung pale, thoracic cage normal and intact. c) Abdomen: Liver spleen, kidney - pale. Stomach contained about 225 ml. of undigested food. Bladder contained about 151 ml. of urine. Cause of death was haemorrhage and shock as a result of above injuries caused by sharp weapon, such as, Pasuli. Time elapsed since death – 12 to 24 hours till P.M. done. P.M. Report in the pen of the doctor was marked Ext-5. 20. P.W.7, the I.O. deposed that on 6th August 1997, 13 at 21.45 hours (9:45 P.M.) he received information that one person had been killed near the bridge on Adari river between village Rampur and Maula Nagar. On receiving this information he recorded S.D.Entry No.100 of 1997 and proceeded to the spot for verification of the information. The S.D. Entry was marked „X‟ for identification. He further deposed that he reached at the P.O. and recorded the fard-beyan of the informant Govind Singh and thereafter the F.I.R. was registered at the Police Station. He also states to have prepared the inquest report (Ext-7) regarding the dead body. He further deposed that he inspected the P.O. which lies on the eastern end of the bridge of Adari river. He also stated that copious blood was there on the P.O. and he scrapped some blood and seized it there. He further deposed that one Avon cycle as well as one pair of Chappals was also lying there and that some blood spots were found on the bicycle. He states to have learnt that the Chappals belonged to the deceased. Then he further deposed that he seized the scrapped blood, the bicycle as well as Chappals and prepared a seizure list therefor. The seizure-list is marked Ext-8. At Para-27 of his cross-examination, he deposed : “?kVuk LFky ij ls vkyw ;k xqM+ fNrjk;k gqvk ;k lkbZfdy esa yVdk >ksyk eSa tIr ugha ik;k FkkA” which would mean that he did not find any potato or Gur scattered at the P.O. or any Jhola hanging in the bicycle and seized as such. Thus, this expression as stated by the I.O. in his deposition means that he had not found Gur or Potato scattered at the P.O. or already seized by anyone when he had come to the P.O. 21. D.W.1, a Junior Engineer was examined by the defence who stated about the topography of the Adari bridge 14 situated over the Adari Pul. He has stated that the canal and bridge situated over the Adari river. He has further stated that the length of Adari river is 451 feet. He also stated to have prepared a sketch map of the bridge. The same was marked as Ext-A. 22. Considering the medical evidence, there remains no doubt over this part of the prosecution story that the deceased had been killed by way of slitting his neck by a sharp weapon may be Pasuli. But this has to be considered further whether the prosecution has been able to prove that the appellants did commit the offence of murder in the manner as alleged by the prosecution. 23. It was contended on behalf of appellants that the P.W.2 and 4 i.e. the son and father are the only eye witnesses who have stated about the