DEATH REFERANCE No.7 OF 2007 STATE OF BIHAR-----------------------------(Appellant) Versus 1.NEERAJ KUMAR 2.RAVI CHOR @ RAVI RAI 3.SANTOSH KUMAR @ LOHA 4.RAVINDRA KUMAR @ RAVINDRA KUMAR SINGH 5.GORAKH SINGH @ GORAKH NATH SINGH 6.SUNNY @ SUNNY DEOL ----------------------(Respondents) with CR. APP (DB) No.1085 oF 2007 RAVINDRA KUMAR @ RAVINDRA KUAMR SINGH--------(Appellant) Versus STATE OF BIHAR------------------------------(Respondents) with CR. APP (DB) No.1173 oF 2007 RAVI CHOR @ RAVI RAI--------------------------(Appellant) Versus STATE OF BIHAR------------------------------(Respondents) with CR. APP (DB) No.1194 oF 2007 NEERAJ KUMAR----------------------------------(Appellant) Versus THE STATE OF BIHAR--------------------------(Respondents) with CR. APP (DB) No.1216 oF 2007 1.GORAKH SINGH @ GORAKH NATH SINGH 2.SUNNY @ SUNNY DEOL-----------------------(Appellants) Versus STATE OF BIHAR------------------------------(Respondents) with CR. APP (DB) No.1275 oF 2007 SANTOSH @ LOHA--------------------------------(Appellant) Versus STATE OF BIHAR------------------------------(Respondents) Reference made by Sri. Ram Pravesh Sharma, Additional Sessions Judge-1, Patna vide letter No.277 dated 20th of August, 2007 and appeal against the judgment and order dated 7.8.2007 passed in Sessions Trial No.1602 of 2005. ---------- Counsel for the appellants (D.Ref. No.7/07) with Cr.Appeal Nos.1216 and 1085 of 2007 Sri Rana Pratap Singh, Sr.Advocate Sri Sandeep Kumar, Advocate Sri Sumant Singh, Advocate Sri Aruni Singh, Advocate 2 Counsel for the appellant (Cr.Appeal No.1194/07) Mr. Kanhaiya Prasad Singh, Sr.Advocate Mr. Atal Bihari, Advocate Mr. Chandra Mohan Jha Counsel for the appellant (Cr.Appeal No.1173/07) Mr. Rajeev Ranjan Sinha, Advocate Mr. Sushil Kumar, Advocate Counsel for the appellant (Cr.Appeal No.1275/07) Mr. Raghu Bansh Singh, Sr.Advocate Mr. Satyapal Singh, Advocate Counsel for the State Mr. Ashwani Kumar Sinha, APP Counsel for the Informant (D.Reference No.7/07) Mr. Shyam Bihari Prasad, Advocate Mr. Praomod Kumar Bhartiya, Advocate Mr. Aradhana Bhartiha, Advocate --------- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE MADHAVENDRA SARAN Shiva Kirti Singh, J. The Death Reference is in respect of the six accused who have been tried together and convicted for the offence under Sections 364(A),302,201 and 120(B) read with Section 34 of the Indian Penal Code. Accused Gorakh Singh @ Gorakh Nath Singh has been sentenced to death for the offence under Section 302 read with 120(B) of the Indian Penal Code whereas the remaining five accused have 3 been sentenced to death for the offence under Section 364(A) of the Indian Penal Code. No separate sentence has been awarded to them for other offences. Accused, Gorakh Singh @ Gorakh Nath Singh and his son, accused Sunny @ Sunny Deol have jointly preferred Cr.Appeal No.1216 of 2007 whereas the remaining four accused, Ravindra Kumar @ Ravindra Kumar Singh, Ravi Chor @ Ravi Rai, Neeraj Kumar and Santosh Kumar @ Loha have preferred separate Criminal Appeals bearing No.1085,1173,1194 and 1275 all of 2007 respectively. The Death Reference and the Criminal Appeals have been heard together and are being disposed of by this common judgment. 2. The prosecution case, as disclosed in the written report (Ext-1) of Sudhir Kumar Sinha(PW-1) lodged on 22.9.2004 at 7:00 A.M. is to the following effect:- Informant’s son, Sumit Kumar aged about 13 years, on 21.9.2004 went on a bicycle to his school, BMP High School, Phulwarisharif from his house. Sunny, son of Gorakh Singh met 4 in the school at about 1:00 P.M. and told him that a cricket match is to be played for which a ball will be given by Ravindra Singh son of Ramnath Singh and for that Sumit should accompany Sunny. Sumit left the school with Sunny at about 1:30 P.M. He was kidnapped by Ravindra Singh and his gang with wrong motives. When Sumit did not return to his home till about 4:00 P.M. then efforts were made to search him. In the night at 8:00 P.M. a station diary (sanha) was recorded. In the morning at about 5:00 A.M. accused, Sunny was seen and was apprehended by the general public which informed the police. Sunny on being apprehended accepted his guilt and disclosed that Sumit had been murdered. Thereafter, police recovered the dead body of Sumit from the side of railway line and his school bag was also recovered. The informant claimed that Sunny, Ravindra Singh and their gang men had kidnapped Sumit and with a view to destroy evidence and with bad intentions they committed murder of Sumit. On the dead body of 5 Sumit there were marks of injury. Blood had flown from nose and ears. There were burn marks caused by cigarette and acid. Ravindra Singh and Sunny reside in Aadarsh Nagar Colony where the informant resides. 3. On the basis of the written report of Sudhir Kumar Sinha, Phulwarisharif P.S. Case No.649/04 was instituted on 22.9.2004 at 11:15 A.M. The FIR was sent to the court and seen by learned Chief Judicial Magistrate, Patna on 23.9.2004. The case was investigated by Anand Prakash Singh, Inspector of Police, then posted as Officer Incharge, (PW-18) and he was assisted by Sub Inspector, Arun Kumar (PW-16) who at the relevant time was posted as Sub Inspector in Phulwarisharif Police Station. PW-16 has admitted that in the evening of 21.9.2004 at about 8:30 while he was on patrolling duty in the evening special mobile, he received wireless information about the missing of Sumit but no clues could be found in the evening. Next day, in the morning at about 7:00 A.M, on receiving 6 information from father of Sumit (Sudhir Kumar Sinha,PW-1) that residents of Mohalla (colony) had caught Sunny and were assaulting him and that Sunny had admitted the kidnapping of Sumit which had created anger amongst the people, he went with force and took Sunny in custody. After making the crowd peaceful he began to interrogate Sunny. He admitted his involvement and disclosed that with the help of his friends he had murdered Sumit. The confession (Ext-4) was recorded by PW-16. As disclosed by Sunny Police went 500 yards east of Phulwarisharif station and from north of the railway line and about 10 yards south to boundary wall of airport, from bushes the dead body of Sumit was recovered. It was without any clothes. There were plenty of bushes all around and ants had encroached all around the dead body. According to PW-16 he had recorded the confession of Sunny as per directions of Officer In charge of Phulwarisharif P.S., PW-18 and participated in further investigation as per his orders. 7 4. Allegedly, Sunny disclosed the names of other accused persons as miscreants involved in the occurrence. PW-16 proved the inquest report as Ext-5, the dead body chalan as Ext-6, seizure list in respect of school bag of Sumit as Ext-7, the confessional statement of another accused, Ravindra Kumar as Ext-8, the confessional statement of Santosh @ Loha as Ext- 9, the confessional statement of Ravi Chor as Ext-10, the confessional statement of Neeraj as Ext-11, station diary entry No.693 dated 21.9.2004 as Ext-12 and another station diary entry No.702 dated 22.9.2004 as Ext-13. He also identified the school bag(material exhibit 1/8) as the bag recovered on the disclosure of Sunny. He also identified the books and copies kept in the bag. 5. According to PW-18, the I.O. who at the relevant time was Officer In Charge of Phulwarisharif P.S., on 22.9.2004 he received a telephonic information from the informant that persons of the colony had apprehended Sunny on 8 suspicion and Sunny had admitted that Sumit had been kidnapped. On this information another station diary entry (sanha) No.702 was recorded. After taking Sunny in custody and recording his confession and after recovering the dead body on his disclosure, PW-18 prepared the inquest report and sent the dead body for autopsy to Patna Medical College Hospital. He also prepared a seizure list in respect of school bag of deceased, Sumit which was recovered as per disclosure made by Sunny from inside the boundary of airport. He recorded further statement of the informant and the statement of other witnesses. He also got recorded statement of Pramod Kumar (PW-10) before the Judicial Magistrate under Section 164 Cr.P.C. He arrested the other accused persons who also gave their confessional statements as claimed by PW-16. He has proved his signature on the confessional statement of accused, Ravindra as Ext-8/1 and his signature on confessional statement of Santosh Kumar @ Loha as Ext-9/1. According to 9 him Ravindra had admitted his guilt and had disclosed that the school dress of Sumit and a piece of tyre strip which was used for strangulating Sumit had been thrown by him at a particular place amongst bushes inside boundary of the airport at about 150 yards east of western cabin of Phulwarisharif railway station and on his pointing out, the school uniform of Sumit- a blue full pant, a white shirt and a tyre strip about 1 and ½ cubits length was recovered from under the bushes. The seizure list for those articles was proved as Ext-14. He has also proved his signature on the confessional statement of accused Ravi Chor @ Ravi Rai and confessional statement of accused Neeraj as Ext-10/1 and 11/1 respectively. After investigation he submitted charge sheet including supplementary charge sheet against the accused persons. 6. After submission of charge sheet cognizance was taken by the learned Magistrate and the case was committed to the court of 10 sessions. Charges were framed on 14.2.2006 to which the accused persons pleaded not guilty and hence they were put on trial. The defence of the accused persons, as appears from the trend of cross-examination is total denial of their involvement in the kidnapping and murder of Sumit. 7. The prosecution, in order to prove the charges examined 20 witnesses in all and also proved several documents such as the written report, the FIR, the confessional statement, the seizure list and the postmortem report as exhibits. In the main trial no witnesses were examined on behalf of the defence. Only for the purpose of enquiry in respect of claim of accused Sunny that he was a juvenile and which plea was subsequently rejected up to the stage of this Court, some persons were examined as witnesses. 8. As noticed earlier, PW-1, Sudhir Kumar Sinha is father of the deceased, Sumit and also the informant of this case who gave written 11 report (Ext-1) to the police. PW-2, Om Prakash is a witness in respect of seizure of clothes and a tyre strip which according to him were recovered on the disclosure made by accused, Ravindra Singh. He has proved his signature on the seizure list as Ext-1/9. He has also identified accused Ravindra. PW-3, Anil Kumar Sinha is brother of PW-1 and a witness of the facts stated by PW-1 that Sumit became traceless after going to school and during search the name of Sunny and Ravindra was heard and police was informed which took Sunny in custody and then he confessed his guilt and on his disclosure dead body was recovered from the place pointed out by him. He has supported the prosecution case and has proved the signature on inquest report as Ext-1/10. He has deposed that besides Sunny Ravindra was also apprehended and on his disclosure full pant and shirt of Sumit which were tied with a tyre strip were also recovered for which the seizure list was prepared. He has proved his signature on the said seizure list as 12 Ext-1/11. 9. PW-4, Manish Ranjan Sinha and PW-5, Sonu @ Rajive Ranjan are sons of PW-3 and cousins of the deceased. According to them also in course of search for Sumit on 21.9.2004 the names of Sunny and Ravindra surfaced. They went to their houses but their family members did not disclose anything and they were not found at their houses. Next day in the early morning at about 5:00 A.M. Sunny was apprehended by the residents of colony and on their query he admitted that Sumit had been kidnapped for ransom. When police came and took him in custody and made further interrogation then he admitted the entire occurrence and also disclosed the names of his friends and accomplices as Loha, Neeraj, Ravi Chor and Ravindra Singh. On the disclosure of Sunny police recovered the dead body as well as the school bag and books of deceased, Sumit. They have identified the accused persons in dock. PW-6, Bittu Kumar is son of sister of PW-1, the informant. He has 13 given the details that in course of search for Sumit he and his friends met a boy named, Ranjan who disclosed that Sunny had come to school gate during lunch time. In the colony Gopal Sharma (PW-15) another boy who was friend of Sumit disclosed that Ravindra had promised to give a ball to Sumit and had called him from school through Sunny. They went to the house of Sunny where his father accused, Gorakh Nath Singh gave different excuses but in the meantime younger brother of Sunny came out from his room and on asking he also disclosed that during lunch time Sunny had come at the school gate. In view of conflicting versions of family members of Sunny a suspicion arose about them. During search this witness and his friends also went to the house of accused, Ravindra but his family members also made different excuses. After some time the police had also come to make interrogations. On 22.9.2004 Sunny was seen in the colony and was apprehended by the residents of the colony on suspicion. On sustained interrogation he 14 admitted that he and his friends had kidnapped Sumit. Thereafter PW-1 gave telephonic information to the police which came and took Sunny in its custody. Thereafter, he has supported the prosecution case regarding confessions by Sunny and recovery of the dead body as well as school bag and books of deceased Sumit as per disclosure made by Sunny. He identified the accused persons but wrongly named Ravi Chor as Loha and Loha as Ravi Chor. 10. PW-7, Baidyanath Lal is a formal witness who has admitted his signature on the inquest report relating to dead body of Sumit. PW-8, Girish Prasad Singh is another formal witness who has proved his signature on the seizure list relating to school bag of Sumit containing his books and copies. He has deposed that the said recovery was made in his presence on the disclosure of accused Sunny. 11. PW-9, Archana Sinha is wife of PW- 1 and mother of the deceased. Her statement under Section 164 of the Cr.P.C. has been proved 15 by her as Ext-2. She has in general supported the prosecution case regarding missing of her son, Sumit on 21.9.2004, Sunny being apprehended by people of the colony on 22.9.2004 and his confession before the people that he with his friends had kidnapped Sumit for ransom, about arrival of the police on telephonic information and about confession by Sunny before the police in which he allegedly disclosed the names of the co-accused. Besides the above she has also deposed that in the evening of 21.9.2004 at about 7:00 P.M., in course of search for Sumit and while going towards station she saw accused, Gorakh Singh talking to an unknown person. She heard Gorakh Singh saying that family members of the boy are searching for him desperately and it appears that the matter is turning serious and police may have been informed and his name may also come into open therefore, sweep the market clean. 12. PW-10, Pramod Kumar is also a young boy acquainted with the accused Ravindra 16 and Sunny. He has deposed that his statement was recorded by the police and he had also given a statement in the court before the Magistrate disclosing that on 21.9.2004 at about 9:30 P.M. Ravindra and his friend Sunny came to him. He enquired as to what was the reason for their coming. Ravindra said that he had entered into arguments with his father. About Sunny he disclosed that he is a neighbour and they will go back in the morning. Both of them slept at his house during the night and in the morning when he woke up he found that both of them have gone away. The witness was thereafter declared hostile and on cross-examination by the public prosecutor he claimed that due to fear he had made the statement before the Magistrate that when he got up in the morning he found that Sunny had gone away and on query Ravindra disclosed that a boy had been murdered. He admitted that he never gave in writing to any court that he is under fear or he has been put under pressure by any body. He admitted his 17 signature on his statement under Section 164 Cr.P.C. The said statement has been marked as Ext-3. He has also admitted that he had stated before the Magistrate all the facts stated in Ext-3 including the fact that in the morning he saw that Sunny had gone away and on his enquiry Ravindra disclosed that he and Sunny had committed murder of the boy and they were therefore hiding themselves and on knowing this fact he had turned Ravindra Kumar out of his house. His attention was also drawn to the facts to the aforesaid effect disclosed by him to the police and he admitted his earlier statement in favour of the prosecution case. 13. PW-11, Surendra Singh is a peon of BMP-5 High School. PW-12, Ranjan Raj, PW-13, Prem Sagar and PW-14, Pintu Kumar are students. The peon has simply stated that on 21.9.2004 during night hours PW-12 and some other boys had come to enquire about another boy and this witness told them to come next day at about 10:00 when the school will be open. On 18 22.9.2004, he learnt that the missing boy had been killed and after five minutes of observing silence the school was closed. The three students have also deposed simply to the effect that they went to the school to enquire about the missing boy and thereafter they got no knowledge about anything relating to the case. 14. PW-15, Gopalji is an important witness who had, according to some of the PWs, disclosed that Sumit was called by Ravindra through Sunny for giving him cricket ball. But in court Gopalji turned hostile. He was definitely under pressure to conceal the truth because in paragraph-1 he has gone to the extent of saying that he does not know any boy of the name Sumit from his colony. But on being cross- examined by the prosecution, in para-3 he has deposed that by the side of his house is the house of one constable (sipahiji) and the next house is of Sumit. He has also disclosed that Sumit was also known by his alias name Lalan. He has denied the suggestion that he has deposed 19 due to fear. 15. The gist of evidence of Sub Inspector, Arun Kumar PW-16 and Inspector, Anand Prakash, PW-18 has already been noticed earlier. PW-18 is the investigating officer and PW-16 had assisted him in course of investigation. PW-17, Dr.Pankaj Kumar conducted autopsy on the dead body of deceased Sumit and has proved the postmortem report as Ext-13. From his evidence it is clear that autopsy was conducted on 22.9.2004 and he found ligature mark all around neck which had indicated strangulation and cause of death was asphyxia. He also found abrasion on right arm and spots of ant bite marks all over the body, mostly over the chest, upper limb, interior abdominal wall and lower limbs. According to him those marks had been wrongly suspected as cigarette marks. According to doctor the injury on the dead body was sufficient to cause death in ordinary course of nature and death had taken place within 24 hours. 20 16. PW-19, Satyendra Singh and PW-20, Raj Kishore Rai are the Judicial Magistrates, (First Class) who have deposed that they recorded statements of Pramod Kumar PW-10 and statement of Archana Sinha, PW-9 respectively, under Section 164 of the Code of Criminal Procedure. Those statements have been marked as Ext-3/1 and 2/1 respectively. From the evidence of these Judicial Magistrates, it is clear that they had taken precaution by warning the witnesses and according to them the witnesses have given their statements voluntarily. 17. Before discussing the submissions advanced on behalf of the accused persons so as to find out whether they have been convicted rightly or not and whether it is a case fit for sentencing them to death penalty, it will be useful to first take a bird’s eye view of the evidence emerging from the statement of witnesses noticed above. 18. It is admittedly a case where there is no eyewitness and therefore no direct 21 evidence either in respect of kidnapping of Sumit Kumar or his killing. The circumstantial evidence on record, even prior to detailed scrutiny and thorough examination, is only by way of-(i) Suspicion against the two accused, Sunny @ Sunny Deol and Ravindra Kumar @ Ravindra Kumar Singh in course of search and their being named in the FIR lodged by PW-1 on the next day of the occurrence. (ii) Sunny was allegedly apprehended by the residents of the colony and had confessed before them regarding kidnapping of Sumit. (iii) Confessions of accused persons except Gorakh Singh @ Gorakh Nath Singh made before the police while in custody, (iv) recovery of dead body and school bag of Sumit Kumar on the disclosure by accused, Sunny, (v) recovery of clothes of Sumit and a tyre strip of 1 and ½ cubit length alleged to be weapon used for strangulation, recovered on the disclosure made by accused, Ravindra Kumar Singh, (vi) evidence of PWs indicating that during search Sunny and Ravindra were not found in their 22 houses and its corroboration by evidence of PW- 10, Pramod Kumar although he has been declared hostile and (vii) evidence of Archana Sinha, PW- 9 against accused Gorakh Singh @ Gorakh Nath Singh that she over heard his conversation with an unknown person in the late evening hours of 21.9.2004 which suggests that he was a party to the killing of the kidnapped boy at least as a conspirator. 19. It requires no detailed scrutiny and reasoning to come to the conclusion that confessions attributed to the accused persons which were allegedly made by them to the police officials while they were in custody are inadmissible in evidence except to the extent permitted by Section 27 of the Indian Evidence Act. On that well established principle of law the confessions of other accused persons except that of accused Sunny @ Sunny Deol and Ravindra Kumar Singh @ Ravindra Kumar are inadmissible in evidence. Once those confessions are left out of consideration, no legal evidence is left on 23 record in respect of accused Ravi Chor @ Ravi Rai, Neeraj Kumar and Santosh @ Loha. 20. So far as remaining three accused are concerned, against accused Ravindra and Sunny there are more than one circumstances but against accused, Gorakh Singh @ Gorakh Nath Singh the only circumstance is the allegation by PW-9, Archana Sinha that she, while going towards station in course of search for Sumit saw accused, Gorakh Singh talking to an unknown person on 21.9.2004 at about 7:00 P.M. She has claimed that she heard Gorakh Singh saying that since the family members of the boy are desperately searching for him (boy) and since the matter is turning serious and the police may have been informed and there was likelihood of his name being disclosed, hence the market should be swept clean. This kind of statement, according to prosecution was in relation to the missing boy, Sumit and cleaning the market impliedly meant killing Sumit. She has further claimed that these facts were conveyed by her to 24 her husband (PW-1) at about 11:00 P.M. in the night. There is no witness to support such a claim of PW-9 and no other material to prove the charge that accused Gorakh Singh was in conspiracy with the other accused persons in the matter of kidnapping and killing of Sumit. The evidence of PW-1 shows that he has not supported the aforesaid