DEATH REFERANCE No.11 OF 2007 STATE OF BIHAR--------------------------------Appellant Versus 1.SACHCHIDANAND SINGH 2.RAJA RAM SINGH 3.RAJ KUMAR SINGH 4.MAHESH SINGH @ BENGA SINGH All are residents of Village Dola, P.S. Pakariwarawan, District Nawada-----------------------------Respondents WITH CR. APP (DB) No.1211 of 2007 1.SACHITANAND SINGH @ BHOTHA SINGH 2.RAJARAM SINGH 3.RAJ KUMAR SINGH @ NATHHU SINGH 4.MAHESH SINGH @ BENGU SINGH All are residents of Village Dola, P.S.Pakariwarawan, District Nawada-----------Appellants Versus STATE OF BIHAR-------------------------------Respondent *** Reference made by Sri Sudarshan Kumar Roy, Additional Sessions Judge-Fast Track Court No.I, Nawada vide letter No.478 dated 13.9.2007 and appeal against the judgment dated 20.08.2007 and order dated 5.9.2007 in Sessions Trial No.248/2006 / 79/2006. *** For the Appellants: Mr. Rana Pratap Singh,Sr. Advocate With M/s Ajay Thakur, Amir Alam, Sumant Singh & Aruni Singh, Advocates For the State : Mr. Ashwini Kumar Sinha, Addl. P.P. For the Informant : Mr. Akhileshwar Prasad Singh & Mr. Kumar Sunil, Advocates *** P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE SYED MD.MAHFOOZ ALAM *** 2 S.M.M.Alam,J. By the judgment under appeal, the learned Additional District & Sessions Judge (Fast Track Court No.1), Nawada has been pleased to convict appellants Sachidanand Singh @ Bhotha Singh, Raja Ram Singh and Raj Kumar Singh under Sections 148 and 302 of the Indian Penal Code (hereinafter referred to as “I.P.C.”). He has further been pleased to convict appellant no.4 Mahesh Singh @ Bengu Singh for the offence under Sections 148, 302/149 of the I.P.C. and Section 27 of the Arms Act. The learned Additional District & Sessions Judge has further been pleased to award death sentence to appellant nos. 1, 2 and 3, namely, Sachidanand Singh @ Bhotha Singh, Raja Ram Singh and Raj Kumar Singh @ Nathhu Singh for the offence under Section 302 of the I.P.C. whereas appellant no.4 Mahesh Singh @ Bengu Singh was also awarded death sentence for the offence under Section 302/149 of the I.P.C. However, no separate sentence has been awarded under Section 148 of the I.P.C. as well as Section 27 of the Arms Act. After delivering the judgment under appeal, the learned Additional District & Sessions Judge made reference under Section 366 of the Code of Criminal Procedure for confirmation of death penalty. Accordingly, this reference bearing Death Reference No.11 of 2007 and Criminal Appeal No.1211 of 2007 are before us and are being disposed of together by this common judgment. 2. The prosecution case, as per the fardbeyan of P.W.6 Anil Kumar son of Ram Khelawan Singh (own brother of 3 deceased Raushan Kumar) resident of village Dolla P.S. Pakribarawan District Nawada recorded by P.W.11, S.I. Vijay Kumar Singh Officer Incharge Pakribarawan on 11.8.2005 at 8.30 P.M. near the premises of Durga Mandir of village Dolla, in brief, is that on the same day at about 4.00 P.M. the buffaloes of Sachidanand Singh (appellant no.1) were grazing the paddy crops standing in the field of the informant whereupon his younger brother Raushan Kumar (deceased) took the buffaloes to Darwaja of appellant no.1 and made protest as to why he had left his buffaloes free for grazing the fields of others. On protest made by Raushan Kumar, Raja Ram Singh (appellant no.2) became angry and started abusing the informant’s brother. He also gave threat that within two hours he would teach lesson that nobody would find any place to conceal. At this moment the informant and his cousin brother Mahesh Singh (P.W.5) also reached there, intervened and persuaded his brother Raushan Kumar to leave the place. Thereafter the informant came to Durga Mandir which is situated adjacent to south of his village. After some time, the informant saw appellant no.1 Sachidanand Singh, appellant no.2 Raja Ram Singh and appellant no.3 Raj Kumar Singh @ Nathhu Singh all of village Dolla going towards west of his village and then within few minutes he saw Rajiv Kumar, Surendra Singh, Sagar Singh, all of village Dolla going towards north along with one Chiku Singh of village Dariyapur Distict Lakhisarai and another 4 boy, namely, Fekan Singh of village Khutaha District Lakhisarai. The informant followed them whereupon he noticed that all the above named persons were going towards village Hathiyari. The informant thought that above named persons might be going for some work and so, he returned back and again came back to Durga Mandir premises as it was time of evening Puja. At this stage, the informant’s co-villager Mahesh Singh, son of Nand Keshwar Singh, Tripurari Kumar, Anil Singh, Nand Keshwar Singh, Pramod Singh alias Tipan Singh, Rajendra Singh, Navin Singh and Raushan Singh also joined the informant. After the evening prayer was over, some persons proceeded towards their home but the informant and above named persons stayed back there and started gossiping. At about 7.30 P.M. Sachidanand Singh alias Bhotha Singh (appellant no.1), Sagar Singh, Raj Kumar Singh, Raja Ram Singh, Surendra Singh all of village Dolla, Chiku Singh of village Dariyapur, Fekan Singh of village Khutaha District Lakhisarai, Ashok Mahto of village Barhauna, P.S. Pakribarawan, District Nawada along with 10 to 12 persons of his gang emerged from the back side as well as from the west of Durga Mandir. They were armed with rifles and other sophisticated weapons. On seeing them the informant along with Mahesh Singh, Tripurari, and Anil Singh son of Chander Singh ran towards the village in order to save their lives but others were restrained by the above named persons. The above named persons opened fire upon the informant and other 5 fleeing persons but fortunately, they remained unhurt and concealed themselves in Baithaka of Krishnandan Singh from where they saw Sanjay Kumar, Ram Balak Singh, Indradeo Singh, Manish Kumar, Manoj Kumar and Mahesh Singh alias Baiju Singh coming out from the Dalan of Bhotha Singh armed with fire-arms and joining the above named criminals. The informant saw appellant no.1 Sachidanand Singh putting his rifle at the chest of Pramod alias Tipan Singh and shouted at him to kill all the persons by firing on their chest so that no one could be left alive. The informant and the witnesses identified the voice of appellant no.1 Sachidanand Singh then Raj Kumar Singh aimed his fire-arm at Raushan Kumar, Raja Ram Singh aimed his fire-arm at Nand Keshwar Singh, Rajiv Kumar pointed his fire-arms at Navin Singh and other culprits surrounded them from all sides and they all started doing indiscriminate firings. The informant and others were witnessing the entire occurrence in the moon light and on hearing the sound of firing the villagers started running towards Durga Mandir but the miscreants stopped them from coming to Durga Mandir by resorting firing. Due to fear, the villagers stopped near the house of Krishna Singh and saw the occurrence from that place. The miscreants did firing about 40-50 rounds and thereafter they all fled away towards west and then the informant and others rushed towards Durga Mandir and on reaching there, he saw the dead bodies of Nand Keshwar Singh, Rajendra Singh, 6 Pramod Singh alias Tipan Singh, Navin Singh and Raushan Kumar (his own brother) lying within the premises of Durga Mandir in pool of blood. They all had fire-arm injuries on their chest, abdomen, arms and other parts of their bodies. It has further been stated in the fardbeyan that appellant no.1 Sachidanand Singh alias Bhotha Singh, who was hardened criminal, was involved in several cases of dacoity. He is also an associate and member of gang of veteran criminal Ashok Mahto and after the incident of grazing of the paddy field of the informant by the buffalos, protest was lodged by informant’s brother Raushan Kumar. He along with other associates and with the help of veteran criminal Ashok Mahto conspired to commit the heinous crime and thereafter he and his associates with the help of gang of Ashok Mahto, who were opposed to Bhumihar caste, had committed the murder of five persons. 3. After recording the said fardbeyan of Anil Kumar, S.I. Vijay Kumar Singh forwarded the same to the Officer Incharge, Pakribarawan P.S. where on receipt of the fardbeyan, Pakribarawan P.S. Case No.91/05 dated 11.8.2005 under Sections 147, 148, 149, 302 of the I.P.C. and 27 of the Arms Act was registered and formal F.I.R. of the said case was drawn up. Thereafter the said S.I. took up investigation of this case and submitted charge sheet against above named appellants and others, on the basis of which the learned Chief Judicial Magistrate, Nawada took 7 cognizance of the offence under Sections 147, 148, 149, 307 and 302/120B of the I.P.C. and 27 of the Arms Act vide order dated 8.5.2006 and thereafter he committed the case to the Court of Session vide his order dated 26.5.2006. Thereafter the case was sent to the file of the learned Additional Sessions Judge for disposal. 4. The appellants have denied the charges and have claimed that they have been falsely implicated in this case at the instance of informant Anil Kumar with whom they had got old enmity and several litigations were going on between the informant side on the one hand and the appellants on the other. Further defence is that murder has been committed by some unknown criminals. 5. In support of the case, the prosecution has examined altogether 11 witnesses, namely, Umesh Singh (P.W.1), Bipin Kumar Singh (P.W.2), Naresh Singh (P.W.3), Tripurari Singh (P.W.4), Mahesh Singh (P.W.5), Anil Kumar (P.W.6), Dinesh Singh (P.W.7), Dr. Nand Kishore Singh (P.W.8), Ramanuj Singh (P.W.9), Dr. Akhilesh Kumar Prasad (P.W.10) and Vijay Kumar Singh (P.W.11). Out of the said witnesses, P.W.6 Anil Kumar is the informant of this case, P.W.8 andP.W.10 are two doctors who had conducted autopsy on the dead bodies of five deceased and P.W.11 is the Investigating Officer of this case. Rest witnesses are eye-witnesses of the occurrence. 8 6. Besides oral evidence, the prosecution has brought on record certain documentary evidence which have been marked exhibits. These exhibits are as follows: Ext.1 is the affidavit sworn by P.W.5 Mahesh Singh, Ext.2 is the signature of informant Anil Kumar on the fardbeyan, Ext.3 is the signature of informant Anil Kumar on the inquest report of deceased Raushan Kumar; Ext.3/1 is the signature of informant Anil Kumar on the inquest report of deceased Rajendra Singh; Ext.3/2 is the signature of informant Anil Kumar on the inquest report of deceased Pramod Singh; Ext.3/3 is the signature of informant Anil Kumar on the inquest report of deceased Nand Keshwar Singh.; Ext.3/4 is the signature of informant Anil Kumar on the inquest report of deceased Navin Kumar Singh; Ext.4 is the signature of Bhola Singh on the inquest report of deceased Raushan Singh; Ext.4/1 is the signature of Bhola Singh on the inquest report of deceased Rajendra Singh; Ext.4/2 is the signature of Bhola Singh on the inquest report of deceased Pramod Singh; Ext.4/3 is the signature of Bhola Singh on the inquest report of deceased Nand Keshwar Singh; Ext.4/4 is the signature of Bhola Singh on the inquest report of deceased Navin Kumar Singh; Ext.5 is the signature of Anil Kumar on the seizure list; Ext.6 is the signature of Anurag Kumar on the seizure list, Ext.7 is the signature of Anil Kumar on the protest petition; Ext.8 is the post mortem report of deceased Rajendra Singh; Ext.9 is the post mortem 9 report of deceased Pramod Singh; Ext.10 is the post mortem report of deceased Raushan Singh; Ext.11 is the post mortem report of deceased Navin Singh. Ext.12 is the post mortem report of deceased Nand Keshwar Singh; Ext.13 is the fardbeyan; Ext.14 is the signature of Vijay Kumar Singh on the fardbeyan; Ext.15 is the formal F.I.R.; Ext.16 is the signature of P.W.11 Vijay Kumar Singh on the formal F.I.R; Ext.17 is the inquest report of deceased Raushan Singh; Ext.17/1 is the inquest report of deceased Rajendra Singh; Ext.17/2 is the inquest report of deceased Pramod Singh alias Tipan Singh; Ext.17/3 is the inquest report of deceased Nand Keshwar Singh; Ext.17/4 is the inquest report of deceased Navin Kumar Singh; Ext.18 is the signature of Vijay Kumar Singh on the inquest report of Raushan Singh; Ext.18/1 is the signature of Vijay Kumar Singh on the inquest report of Rajendra Singh; Ext.18/2 is the signature of Vijay Kumar Singh on the inquest report of Pramod Singh alias Tipan Singh; Ext.18/3 is the signature of Vijay Kumar Singh on the inquest report of Nand Keshwar Singh; Ext.18/4 is the signature of Vijay Kumar Singh on the inquest report of deceased Navin Singh; Ext.19 is the seizure list and Ext.20 is the signature of Vijay Kumar Singh on the seizure list. 7. Although the defence has not adduced any oral evidence but has brought certain documentary evidence on 10 record which have been marked as exhibits which are as follows:- Ext.A is the certified copy of F.I.R. of Pakribarawan P.S. Case No.55/2000 lodged by Ravindra Yadav on 4.6.2000 against Akhilesh Singh alias Sardar and others; Ext.A/1 is the certified copy of F.I.R. of Warsaliganj P.S. case No. 85/2000 lodged by Nilesh Kumar of village Upraur P.S. Warsaliganj against Uchhat Singh and others; Ext.A/2 is certified copy of F.I.R. of Kashichak P.S. Case No.47/2000 lodged by Mahesh Prasad against Shrawan Singh and others; Ext.A/3 is the certified copy of F.I.R. of Warsaliganj P.S. Case No.22/2003 lodged by Rajesh Kumar against Sahdeo Prasad and others. Ext.B is certified copy of the complaint petition bearing Complaint Case No.798/01 filed by appellant no.1 Sachidanand Singh against informant Anil Kumar, deceased Raushan Singh and others; Ext. C is the certified copy of the plaint of Title Suit No.05/2002 of the court of Sub-Judge, Nawada in which appellant no.1 Sachidanand Singh, Raja Ram Singh and others figured as plaintiffs and the State of Bihar along with Anchal Adhikari, Pakribarawan, B.D.O. Pakribarawan and Mukhiya, Gram Panchayat, Ukaura figured as defendants. 8. The point for consideration is as to whether on the basis of the materials available on record it can be held that the prosecution has fully been able to prove the charges levelled against the appellants and whether the 11 conviction of the appellants and death sentence awarded to the appellants are just and proper. 9. In order to find out whether the prosecution has succeeded in proving its case, I would like first to discuss the evidence of the prosecution case which is on record. First of all, I would like to refer the evidence of P.W.6 Anil Kumar, who happens to be the informant of this case. He is also own brother of deceased Raushan Singh, who was one of the deceased and had been killed in the evening of 11.8.2005. The evidence of P.W.6 is as follows:- The occurrence had taken place on 11.8.2005. In the evening at about 4.30 P.M. the buffalos of Sachidanand Singh (appellant no.1) had grazed his paddy field whereupon his younger brother Raushan took the buffalos to Darwaja of Sachidanand Singh and lodged protest with him whereupon Raja Ram Singh (appellant no.2) became enraged and started abusing Raushan Kumar. He also gave threat that within two hours he would teach lesson and then no one will get any chance to escape whereupon the informant intervened and persuaded his brother Raushan to leave the place. The informant told them (appellant no.1 and appellant no.2) as to why they were making a small matter as big issue. Thereafter he proceeded towards Durga Mandir. Some other persons joined him at Durga Mandir and they started discussing about the tension created in the village on small matter. In the meantime, he saw Sachidanand Singh alias 12 Bhotha Singh, Raja Ram Singh, Raj Kumar Singh and Surednra Singh going towards west of the village and after 10-15 minutes he saw Sagar Singh, Rajiv Kumar, Chiku Kumar, Fekan Singh, Sanjay Singh, Manoj Kumar, Manish Kumar and Mahesh Singh going towards north of the village. He thought that they might be going for some work and started gossiping with other persons. At about 5.45 P.M. evening Puja (Arti) was performed and thereafter several persons left the place after taking Parsad. The informant along with Tripurari Singh, Anil Singh son of Chandrashekhar Singh, Pramod Singh, Raushan Singh, Nand Keshwar Singh, Navin Singh, Naresh Singh, Bipin Singh, Mahesh Singh, Ramanuj Singh and some other persons stayed back at Mandir. At about 7.30 P.M. 10- 15 persons having fire-arms in their hands suddenly emerged from the southern and western side of temple. Amongst them, he identified Sachidanand Singh alias Bhotha Singh (appellant no.1), Raja Ram Singh (appellant no.2), Raj Kumar Singh (appellant no.3), Surendra Singh, Sagar Singh, Sanjay Singh, Manoj Singh, Manish Singh, Indradeo Singh, Ram Balak Singh, Mahesh Singh alias Bengu Singh (appellant no.4). Chiku Singh and Fekan Singh joined them from the western side of the school. Having seen them armed with fire-arms he along with other persons ran for safety and they hid themselves behind the Baithaka of Krishnandan Singh. He has further deposed that it was moonlit night and in the moon light he saw Sanchidanand Singh putting his rifle on the 13 chest of Pramod Singh and then he fired shot from his rifle and shouted to surround all others and shoot them. He has further deposed that Manoj Singh also shot at Pramod Singh on his chest. Pramod Singh fell down and died. Then Raj Kumar Singh shot at Raushan Singh with his rifle causing injury on his chest; Surednra Singh also shot at Raushan Singh causing injury on his chest. Raushan Singh sustained injuries on his chest and other parts of his body. He has further deposed that Raja Ram Singh and Chiku Singh shot at Nand Keshwar Singh with their respective rifles. Nand Keshwar Singh sustained injuries on his armpit. He fell down and died. Raj Kumar Singh and Fekan Singh shot at Navin Singh with their respective rifles who sustained injuries on his chest and fell down and died. Other persons also opened fire in the air. Amongst them, he identified Mahesh Singh, Manish Kumar, Ram Balak Singh and Indradeo Singh. They all fled away towards west by firing in the air. He has further deposed that the villagers also rushed towards the place of occurrence but due to fear, none dared to go near the place of occurrence but when the sound of firing was stopped then after 5 to 10 minutes he along with others came out from Dalan of Krishnandan Singh and with several persons of his village went to Durga Mandir premises where he and other persons saw Pramod Singh alias Tipan Singh, Raushan Singh, Rajendra Singh, Nand Keshwar Singh and Navin Singh lying dead having bullet injures on their chest. He has further 14 deposed that on arrival of the police he gave his fardbayan over which he put his signature (Ext.2). He has further deposed that the police officer prepared inquest report of the dead bodies and he put his signatures on all the inquest reports. Signatures of P.W.6 are Exts. 3, 3/1, 3/2, 3/3, and 3/4. He has further deposed that Bhola Singh had also put his signatures on all the inquest reports. The signatures of Bhola Singh are Exts. 4, 4/1, 4/2, 4/3 and 4/4. At paragraph 7 P.W.6 has deposed that Sagar Singh and Sanjay Singh also shot at Rajendra Singh who had sustained injuries on his chest and died. He has further deposed that the police officer had seized the blood-stained earth as well as empty cartridges from the place of occurrence and had prepared the seizure list and on that seizure list he had put his signature along with Anurag Kumar Ext.5. He has further deposed that the cause of occurrence was that there is a Gairmazarua Aam land of the State of Bihar over which school building, Durga Asthan, Samudayik Bhawan are standing but on the remaining part of the land, the appellants and others had intention to take forcible possession and due to that, the occurrence had taken place. P.W.6 has further deposed that he had filed protest petition in this case and on his identification, the protest petition has been marked Ext.7. P.W.6 has also identified all the accused present in the dock except accused Ravi Shankar Kumar, who has been acquitted by the trial court. 15 10. In paragraph 15 of his cross-examination, P.W.6 has deposed that the police had arrived at the place of occurrence at about 8 P.M. At paragraph 16 he has deposed that D.M., Nawada and S.P., Nawada also reached at the place of occurrence but cannot say at what time they had arrived. At paragraph 15A P.W.6 has deposed that he was the first man who had given his statement before the police and again said that the police had recorded his statement at about midnight and from 8 P.M. upto midnight he always remained present at the place of occurrence. At paragraph 16A he has deposed that on arrival of police, about 400-500 persons assembled at the place of occurrence but the police did not make any enquiry from them prior to recording his evidence. At paragraph 17 he has deposed that his statement was recorded by the police in absence of D.M. and S.P., Nawada. At paragraph 18 P.W.6 has deposed that Durga Mandir premises consists of an area of 1.95 acres of land and on the northern and western side of Durga Mandir premises there are boundary walls. P.W.6 has again reiterated at paragraph 19 that he along with Mahesh Singh, Tripurari Singh and Anil Singh ran for safety from Durga Mandir and hid themselves in the Baithaka of Krishnandan Singh which is situated towards the north of Durga Mandir premises, after northern boundary wall of Durga Mandir. He again said that from the boundary wall of Durga Mandir, the Baithaka of Krishnandan Singh is situated towards north east corner at a distance of 50 16 yards and in between the boundary wall and Baithaka no other Baithaka or house is situated. At paragraph 20 he again reiterated that on hearing the sound of firing, the villagers had rushed to the place of occurrence but due to fear they also stopped behind Baithaka of Krishnandan Singh. At paragraph 22 he has said that after the occurrence Ramanuj Singh, Ragho Yadav, Vijay Singh, Kamlesh Singh, Ghanshyam Kumar, Sukhdeo Singh and several other villagers had gone to the place of occurrence, besides Mahesh, Tripurari and Anil Singh. At paragraph 23 P.W.6 has deposed that the house and Baithaka of Sachidanand Singh (appellant no.1) stand over the land of Durga Mandir and the same are there for the last 15-20 years ago. This witness has also admitted at paragraph 24 that Sachidanand Singh (appellant no.1) and Raja Ram Singh (appellant no.2) and others had brought a title suit in respect of the land of Durga Mandir bearing Title Suit No.5/2002. He has also admitted that Ram Sagar Singh, Raja Ram Singh, Surendra Singh, Sachidanand Singh, Mahesh Singh and Raj Kumar Singh (all are accused in this case) are plaintiffs of the said suit and the suit was brought against the State of Bihar. He also admitted that during the pendency of the said suit, Anchal Adhikari with the help of some villagers constructed school, community hall and Mandir over the land in dispute. At paragraph 25 P.W.6 has admitted that Sachidanand Singh (appellant no.1) had instituted a criminal case bearing Complaint case 17 no.793/2001 against 17 accused persons and in that very case, he was also one of the accused along with his brother Raushan Singh (deceased). He also admitted that Dinesh Singh (P.W.7), Umesh Singh (P.W.1), Mahesh Singh (P.W.5), Ramanuj Singh (P.W.9) were also accused in the said complaint case. He also admitted that in that very case Raja Ram Singh (appellant no.2), Raj Kumar Singh (appellant no.3), Vakil Singh son of Ram Balak Singh and Sadhu Sharan Singh son of Rajo Singh were witnesses of that case. He has deposed that the said complaint is still pending. At paragraph 26 he has