Death Reference no. 8 of 2007 With Cr.Appeal no. 1152 of 2007 With Cr.Appeal no. 1338 of 2007 ===== IN DEATH REFERENC No.8 OF 2007 STATE OF BIHAR--------------------------(Appellant) Versus LAXMI NARAYAN SINGH @ LAXMI SINGH------(Respondent) with IN CRIMINAL APPEAL (DB) No.1152 of 2007 LAXMI NARAYAN SINGH @ LAXMI SINGH @ MUNNA @ AMIT ------(Appellant) Versus STATE OF BIHAR-------------------------(Respondent) with IN CRIMINAL APPEAL (DB) No.1338 of 2007 MOHAN SINGH-----------------------------(Appellant) Versus STATE OF BIHAR-------------------------(Respondent) ****** For the Reference & State:Mr. Ashwini Kr Sinha,APP (in all the appeals) For the appellant:Mr Rana Pratap Singh,Sr.Advocate And Mr. Arun Singh (in Cr.Appeal no. 1152/07) For the appellant: Mr.Virendra Kuar, Advocate (in Cr.Appeal no. 1338/07) ======= Reference made by Sri Ramesh Chandra Singh, Additional Sessions Judge, F.T.C.IV, Motihari vide letter no.176 dated 23.8.2007 and appeals against the judgment and order dated 14.8.2007 passed in Sessions Trial no. 101/16 of 2006/07 arising out of Motihari Town P.S. case no. 246/05 corresponding to G.R.no.1882/05. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE MADHAVENDRA SARAN M.Saran,J. The death reference and the two Criminal Appeals arise out of the same judgment and order dated 14.8.2007 passed by learned 2 Additional Sessions Judge, F.T.C.IV, Motihari in Sessions Trial no. 101/16 of 2006/07 arising out of Motihari Town P.S. case no. 246/05 corresponding to G.R.no. 1882/05 whereby and whereunder appellant Laxmi Narayan Singh @ Laxmi Singh @ Munna @ Amit (Cr.Appeal no. 1152 of 2007) has been convicted under section 302 of the Indian Penal Code (in short as IPC) and has been awarded death sentence. He has further been convicted under section 307 IPC and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 10,000/- and in default of payment of fine to further undergo simple imprisonment for one year. The amount of fine, if realised, shall be paid to the victim. He has also been convicted under sections 120B of the IPC and 27(3) of the Arms Act but no separate sentence has been awarded. The appellant Mohan Singh of Cr.Appeal no. 1338 of 2007 has been convicted under section 120B IPC and has been sentenced to undergo rigorous imprisonment for life and a fine of Rs. 25,000/- and in default of payment of fine to further undergo simple imprisonment for one year. He has further been convicted under section 386 IPC and sentenced to undergo rigorous imprisonment for seven years and fine of Rs. 5,000/- and in default of payment of fine to further undergo simple imprisonment for six months. The entire amount of fine, if realised, shall be paid to the legal heirs of the deceased. 2. The prosecution story ran as follows:- Informant Vikas Kumar Jha (P.W.4) on 3.8.2005 at 22.30 hours gave fardbeyan before the Inspector, Sri S.B.Pandey of Motihari Police Station at Sadar Hospital, Motihari to the effect that on 23.7.2005 at 3 about 5.00 PM a telephone call was received on his telephone no. 239727 between 3.30 PM to 5.00 PM by his staff Birendra Sah at his medical shop from a number of Air tel and the caller inquired about Anil kumar Jha, brother of the informant, which was replied by his staff in negative. The caller then directed to give the phone to informant Vikas Kumar Jha and the caller disclosed his name as Mohan Singh and directed him to send Rs. 50,000/- in court premises. The informant told him that his elder brother Anil Kumar Jha is the owner of the medical shop and he had gone to Babadham and therefore, he is unable to oblige him. Again on 25.7.2005 in between 11.30 AM to 12.30 PM a call was received by the informant from Mohan Singh from mobile no. 9835273765 and he told “you have not given money, be ready to face the consequences.” The informant disclosed about all these happenings to his family members on 25.7.2005. When informant’s brother Anil Kumar Jha returned back home from Babadham, the informant informed him about the threatening but his brother told that someone might have joked. On 3.8.2005 at about 9.00 PM while the informant Vikas Kumar Jha (P.W.4) was at Balua Chowk, his driver Dhanai Yadav (P.W.1) made a call on his mobile and informed that his father Sureshwar Jha (P.W.2) and brother Anil Kumar Jha have sustained fire arms injuries. On hearing the news the informant rushed to Sadar Hospital and saw his brother Anil Kumar Jha lying dead and the persons present there informed that his father had been shifted to Rahman’s Nursing Home. The persons present at the hospital also disclosed the informant that Laxmi Singh and Niraj Singh have fired and caused injuries. The informant came to Rahman’s Nursing Home where 4 his father Sureshwar Jha told that Laxmi Singh fired from his A.K. 47 rifle and Niraj Singh was removing other persons from the shop and asking him not to fire on others. After making the firing they fled away towards Balua Chowk on a motorcycle. Informant’s father after making the disclosure became senseless. The informant thus alleged that the crime was committed by Laxmi Singh and Niraj Singh at the behest of Mohan Singh in which his father and brother were also instrumental. On the basis of fardbeyan of the informant, Motihari Town P.S. case no. 246/05 on 3.8.2005 was registered against Mohan Singh (in Jail), Niraj Singh, Laxmi Singh and others. After concluding investigation the police submitted charge sheet. Cognizance was taken and the case was committed to the court of session for trial. After trial Pankaj Singh was acquitted but two appellants were convicted and sentenced as mentioned above. 3. The defence of the appellants was total denial of the occurrence. Their further defence was that the deceased Anil Kumar Jha was in association with many criminals and he was shot dead by other criminals. Appellants, however, did not produce any oral and documentary evidence in their defence. 4. The sole question, therefore, arises for consideration is whether the prosecution has proved its case against accused appellants beyond all reasonable doubt. 5. In order to bring home the charges, the prosecution examined 11 witnesses. P.W.1 Dhanai Yadav is the driver of the informant. P.W.2 Sureshwar Jha is injured and father of deceased Anil Kumar Jha. P.W.3 Sunil Jha is brother of the deceased. P.W.4 Vikas 5 Kumar Jha is the informant and brother of the deceased. P.W.5 Dr S.K.Choudhary is the doctor who had performed post mortem examination. P.W.6 Satyadeo Pandey is the first Investigating Officer of the case. P.W.8 Chandeshwar Prasad Yadav is the second Investigating Officer of the case. P.W.10 Dayanand Singh is the third Investigating Officer and P.W. 7 Birendra Narayan Singh is the 4th Investigating Officer of the case. P.W.9 Dr Tabrez Aziz is the doctor who had examined injured Sureshwar Jha and P.W.11 Sarfuddin Ahmad is Officer Incharge of Naka no.4 and had produced the seized three empty cartridges in court. 6. P.W.1 Dhanai Yadav stated in court that on the date of occurrence at about 8.00 to 8.30 PM he was sitting inside the Shanti Medical Hall situated at Hospital Chowk owned by deceased Anil Kumar Jha. Anil Kumar Jha and his father Sureshwar Jha were also sitting inside the shop. He heard the sound of firing. He saw that Laxmi Singh was firing and Niraj Singh was removing the people. The shot fired by Laxmi Singh hit Anil Kumar Jha and Sureshwar Jha and thereafter the criminals fled away on motorcycle towards Balua Chowk. Thereafter they carried Anil Jha and Sureshwar Jha to hospital. Anil Kumar Jha died in the Hospital and his father Sureshwar Jha was shifted to Rahman’s Nursing Home. Sureshwar Jha was treated in Rahman’s Nursing Home and from there he was referred to Patna. He further stated that on the same day the police officer came and seized empty cartridges from the shop and prepared the seizure list upon which he and Sunil Jha put their signature. The signature of this witness on the seizure list is exhibit-1. He identified Laxmi Singh, Pankaj Singh and Mohan Singh present in court. He further 6 stated that Pankaj Singh was keeping motorcycle in starting position. He further stated that he was working as driver of Anil Kumar Jha since three years. Then in cross examination at paragraph-16 this witness stated that he was sitting on the floor whereas the deceased and his father were selling medicines sitting on the counter. Suddenly he heard sound of continuous firing. He stood up, became senseless and fell down and when he regained senses he found the deceased and his father in unconscious condition. He was not taken to the hospital. He informed Vikas Kumar Jha through telephone about the incident. In the same night he went to Patna. From Patna he returned back after 15 to 20 days and thereafter his statement was recorded by the police. In paragraph-20 he however stated that he carried both the injured one after another to the hospital. 7. P.W.2 Sureshwar Jha is injured and most important witness of this case. He stated that the deceased Anil Kumar Jha was his eldest son. He was running a medicine shop near the Hospital gate. On 3.8.2005 he was sitting in the medicine shop along with his son Anil Jha and the driver (P.W.1). At about 8.00 to 8.30 PM two persons arrived on the veranda of the shop and one man began to remove the persons present there. Next man named Laxmi Singh started firing indiscriminately. His son Anil Jha received fire arms injury and fell down. Blood began to spread. When he went to save him he also received injury at his ribs and fell down. He stood up and rushed towards his son when he again received two fire arms injuries. One pellet hit in his left abdomen and the other pellet hit his backbone. Thereafter he became senseless. He regained senses in Dr Rahman’s clinic. The police reached there and 7 inquired from him. Thereafter he again became senseless. He was treated at Magadh Hospital, Patna. He returned from Patna after 17 to 18 days. The police came at his residence and recorded his statement. He further stated that his son died due to fire arms injury on the spot. According to this witness, Mohan Singh had demanded a sum of Rs. 50,000/- as ransom and threatened to face the consequences in case no payment was made. He identified Laxmi Singh by asserting that he was the person who killed his son. He also identified Mohan Singh as the person who had demanded ransom. He identified Pankaj Singh as the person who was keeping the motorcycle in starting position. In cross examination at paragraph-17 this witness stated that firing was made from a distance of 3 to 4 feet. He received fire arms injury when he was in the standing position. He fell down on the ground after receiving the injury and at that time his driver was watching T.V. sitting on the ground. He had no sense to raise alarm. He had no talk with any one in the Government Hospital. He had also no talk with any person about the occurrence before proceeding to Patna. He further stated in cross examination that after receiving senses in Magadh Hospital, he talked about the incident to Sunil Jha and his driver. 8. P.W.3 Sunil Jha is brother of the deceased. He is a hearsay witness. He stated that at the time of occurrence he was at Balua Chowk. At that time his father and brother were at the medical shop. His driver Dhanai Yadav informed him on mobile that firing had been made in the shop. He went to the shop. He came to the Hospital and found his brother lying dead. He was informed that his father had been taken to Rahman’s 8 Nursing Home. He then went to Rahman’s Nursing Home and met his father who told that Laxmi Singh and Niraj Singh caused fire arms injury to them and during talk he became senseless. He further stated that on the advice of the doctor of Nursing Home he carried his father to Patna where he was treated and returned from there after 20-25 days. He identified Laxmi Singh and Mohan Singh but did not identify Pankaj Singh. This witness has also stated that Mohan Singh had demanded Rs. 50,000/- as ransom and due to non-payment of the same, the incident occurred. He further stated that on the date of occurrence the police came and seized empty cartridges of A.K.47 rifle and prepared seizure list upon which he put his signature. In cross examination at paragraph 23 he stated that he reached at the Nursing Home of Dr. Rahman at about 9.00 to 9.30 PM where his father was admitted in I.C.U. He talked to his father after taking permission of the doctor. 9. P.W.4 Vikas Kumar Jha is the informant. He stated that his brother Anil Jha was murdered on 3.8.2005 between 8.30 PM to 9.00 PM and at that time he was at Balua Chowk. His driver Dhanai Yadav informed him on phone that Anil Bhaiya and Chachaji have received fire arms injuries. On getting the said information he went to his shop named Shanti Medical Hall where there was a crowd. He got information about the incident. He went to the hospital and found his brother lying dead. The people present there told him that his father had been taken to Rahman’s Nursing Home. He went there. His father told him taking the name of Laxmi Singh and Niraj Singh that they had fired on them. His father after disclosing the name of the accused became unconscious. Thereafter his 9 father was taken to I.C.U. He further stated that 2-3 hours thereafter Dr Tabrez (P.W.9) asked him to take his father to Patna. Sunil and driver Dhanai carried his father to Patna for further treatment. He has further stated that reason behind the occurrence is non-fulfillment of demand of ransom of Mohan Singh. He stated that Mohan Singh had telephoned him on 23.7.2005 at his shop and asked him to send Rs. 50,000/- in court. Again Mohan Singh had made a call on 25.7.2005 and threatened to face the consequences. He further stated that his telephone connection had caller I.D. facility and it had displayed the caller’s phone number. He informed about it to the police. He had also informed his brother deceased Anil Bhaiya about the demand when he returned from Babadham. His brother took it lightly and had told that some one might have joked. He returned from Rahman’s Nursing Home to Sadar Hospital where the police recorded his fardbeyan. The signature of this witness on fardbeyan is exhibit-1/B. He also identified the signature (exhibit-1/C) of Prakash Kumar Jha and signature (exhibit-1/D) of Niraj Kumar on the fardbeyan. The Police Officer prepared the inquest report upon which he put his signature (Exhibit-1/E) next day in the morning. He identified Laxmi Singh and Mohan Singh. However, he did not identify Pankaj Singh. In cross examination at paragraph-17 this witness stated that he had talked directly with Mohan Singh at Hospital Chowk prior to the occurrence. At that time he had not demanded ransom rather he was demanding contribution on the occasion of Durga Puja and Saraswati Puja. 10. P.W.9 Dr Tabrez Alam on 3.8.2005 at 9.10 PM examined P.W.2 Sureshwar Jha and found the following injuries on his person:- 10 (i) A tatooing wound over left side of the back of scapula 4” below, measuring about 3”x ½ “x cavity deep- it is wound of entry; (ii) A tatooing wound over the left side of humerus, posteriorly measuring about 1”x ½”x subcutaneous deep – wound of entry; (iii) Wound of exit over the left side of humerus anteriorly measuring about 1”x ½”x subcutaneous deep; Local anesthesia was done on the left side of chest and after resuscitation the patient became stable. The patient was referred to heart hospital and medicare at Patna for further treatment. Age of injuries within six hours. Nature of injury:- injury no.(i) was grievous and injury nos (ii) and (iii) were simple in nature. All injuries were caused by fire arms. The injury report is exhibit-7. In cross examination he stated that there was no exit wound of injury no.(i). 11. P.W.5 Dr S.K.Choudhary on 4.8.2005 was posted at Sadar Hospital, Motihari as Medical Officer. On the same day at about 7.15 AM he conducted post mortem examination on the dead body of Anil Kumar Jha and found the following antemortem injuries: - (i) Oval shaped lacerated wound ½” x 1/3” x cavity deep margin black and inverted over right side of the face just below right eye (wound of entry) communicating with injury no.ii; (ii) Lacerated wound oval blackened everted margin of 1 1/2” x 1” x cavity deep over back left ear (wound of exit); (iii) Lacerated wound blackened and inverted margin ½” x 11 1/3” x cavity deep over front of the chest at left side. Sternum in 5th inter coastal space (wound of entry) communicating with injury no.iv; (iv) Lacerated wound with everted margin 1” x ½” x cavity deep over left side of the chest in 7th inter coastal space (wound of exit); (v) Rounded lacerated wound of ½” x ½” x soft tissue deep with blacken and inverted margin over left shoulder (wound of entry) communicating with injury no.vi; (vi) Lacerated wound 1” x ½” x soft tissue deep with everted margin in left axilla (wound of exit); (vii) Lacerated wound 1 ½” x 1” x soft tissue deep with inverted margin over inner aspect of left upper arm (wound of entry) communicating with injury viii; (viii) 2 ½” x 1” x soft tissue deep with everted margin over lateral and lower aspect of left upper arm with communicated fracture of shaft and left humerus (wound of exit). On dissection he noticed the following:- Brain and the meninges pale, fracture of right axilla, left side of chest cavity full of blood, lungs lacerated, heart lacerated. All abdominal visceras were pale and in tact. Stomach was containing semi digested food materials. Time elapsed since death within 12 hours. All the injuries were caused by fire arms. The death in the opinion of the doctor took place due to haemorrhage and shock caused by the abovementioned injuries. Post mortem report is exhibit-2. According to the doctor, all the above injuries were caused by the same fire arms. 12 12. P.W.6 Satyadeo Pandey on 3.8.2005 was posted as Officer Incharge of Motihari Town Police Station. On the same day at about 20.50 hours he received information that firing has been made at the Hospital Chowk. On getting information he went to Hospital Chowk after registering Sanha no. 97 dated 3.8.2005 at the Police Station. He was informed at the Hospital Chowk that firing had been made in Shanti Medical Hall and Anil Kumar Jha had been killed in the said firing and his father Sureshwar Jha had been sent to Rahman Clinic for treatment. He recorded the fardbeyan of Vikash Kumar Jha (P.W.4) in Sadar Hospital, Motihari. The said fardbeyan is exhibit-3. Thereafter he went to Rahman Nursing Home and talked to Sureshwar Jha (P.W.2). He recorded his statement also. He learnt later on that Sureshwar Jha has been referred to Patna. He further stated that when he was ready to record the statement of Sureshwar Jha the doctor advised him to take his statement later on because his condition was serious. He arranged Ambulance for carrying Sureshwar Jha for Patna. From Rahman Nursing Home he came to the place of occurrence and inspected the same. He found blood in huge quantity scattered on the floor of the shop. He also found several sign of firing on cartoons kept in the almirah of the shop. He found three empty cartridges of A.K. 47 rifle in the Sahan portion of the shop. The seizure list of the empty cartridges was prepared in presence of Sunil Jha and the driver Dhanai. The inquest report was prepared in his presence by the A.S.I. Jagdish Choudhary. The inquest report is exhibit-6. He handed over the charge of investigation to S.I. Sanjai Jha on 3.9.2005. In cross examination he stated that he did not send the FIR late to the court. 13 13. P.W.7 Birendra Narayan Singh on 19.7.2006 took over charge of investigation from the then Officer Incharge. He examined the case diary and the supervision note and submitted charge sheet against Laxmi Singh. 14. P.W.8 Chandeshwar Prasad Yadav took over the charge of investigation of the case on 4.10.2005 from P.W.6. He received post mortem report. He recorded inquest report in the case diary. He submitted charge sheet against Binda Singh and Mohan Singh and kept investigation pending against other accused persons. In paragraph 14 he has stated that he learnt that mobile no. 9835273765 was of Mohan Singh. Mobile no. 9431428630 was of Laxmi Singh. Telephone no. of shop of the deceased was 06252-239727. He has further stated that on 25.7.2005 at 11.21-50 hours conversation was made for 54 seconds from mobile no. 9835273765 to telephone no. 06252-239727. Then at paragraph 16 this witness stated that on 23.7.2005 four calls were made between mobile nos. 9431428630 and 9835273765. Then on 3.8.2005 five calls were made from mobile of Laxmi Singh to mobile of Mohan Singh. The Call details of mobile no. 9835273765 has been marked as exhibit-10 and the print out copy of the said mobile has been marked as exhibit.9. This witness has further said that he tried to find out the names in which SIMS of these mobile nos. had been allotted but could not receive any report. He however, stated that the informant had provided those mobile numbers to him. 15. On behalf of the appellants it has been seriously contended that the family members of the deceased had shown extremely unnatural 14 conduct by not informing about the demand of ransom and also not disclosing the name of the assailants immediately after the incident. In this connection learned counsel referred to the evidence of P.Ws 1,2,4 and 6. He contended that though the fardbeyan of the informant was recorded on 3.8.2005 at 22.30 hours but the same was received in the office of Chief Judicial Magistrate, Motihari on 5.8.2005. The inquest report was prepared on 4.8.2005 but the case number over the same was not mentioned. He further contended that on the post mortem report also the case number was not mentioned. He thus contended that the whole FIR is antedated and fabricated one. In support of his argument that delay of one day in sending the FIR is fatal reliance has been placed on the following two decisions of the Supreme Court. (1) AIR 1976 SC 2423 and (2) AIR 1994 suppl.(2) SCC 372. 16. As mentioned above the occurrence took place on 3.8.2005 at 8-8.30 PM in the medicine shop of P.W.4 situated at Hospital Chowk, Motihari. At the time of firing P.Ws 1,2 and the deceased Anil Kumar Jha were present in the shop. P.W.2 and his son Anil Kumar Jha were engaged in selling the medicine. The driver, P.W.1, was sitting on the floor and watching the T.V. Suddenly appellant Laxmi Singh and Niraj Singh arrived in the shop and Laxmi Singh started indiscriminate firing from A.K.47 rifle. P.W.2 and his son Anil kumar Jha became severely injured due to firing. Therefore, it is not expected that they would have disclosed the name of the assailant to the public. P.W.1 is a driver and he might not have dared to disclose the name of the accused on telephone to P.W.4. He might not also have dared to disclose the name of accused to the public for 15 the reason that both the appellants have criminal background. P.Ws 1,2,3 and 4 have identified accused appellants in open court. It is true that the FIR was seen by