1 DEATH REFERANC No.16 OF 2008 - - - - - Reference made under Section 366 of the Code of Criminal Procedure by Additional Sessions Judge-cum- Presiding Officer, Fast Track Court No.V,Patna, by his letter No.427 of 2008 dated 20.9.2008 in connection with S. T. Case No. 188 of 2007. - - - - STATE OF BIHAR … … State Versus SHANKAR KANU @ SHANKAR SAO … Condemned prisoner With CR. APP (DB) No.1224 of 2008 Against the judgment and order dated 18.9.2008 passed by the Additional Sessions Judge-cum-Presiding Officer, Fast Track Court No.V, Patna in S.T. No.188 of 2007. - - - - RAM CHANDRA MAHTO … … Appellant Versus THE STATE OF BIHAR … …. … Respondent With CR. APP (DB) No.1265 of 2008 SHANKER KANU @ SHANKER SAO … … Appellant Versus THE STATE OF BIHAR … … Respondent With CR. APP (DB) No.1302 of 2008 1. ANIL URAON 2. Manohar Kumar 3. Ashish KLumar Rai … … Appellants Versus THE STATE OF BIHAR … … Respondent For the Reference & the: Shri Ashwini Kumar Sinha,A.P.P. Respondent(in the three appeals) For the appellants: Shri Kanhaiya Prasad Singh,Sr. Adv. (in three appeals) Shri Uday Kumar Singh,Adv. P R E S E N T THE HON'BLE SHRI JUSTICE C.M.PRASAD THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA - - - Dharnidhar Jha, J.- The above noted Death Reference along with three appeals arise out of the Judgment of 2 conviction dated 18th of September, 2008, passed by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court No.V, Patna, in Sessions Trial No.188 of 2007. They have been heard together and are being disposed of by the present common judgment. While holding the appellants guilty of committing offences under Sections 396 and 412 of the Indian Penal Code by the above order of conviction the learned trial Judge heard the appellants on sentence on 19.9.2008 and awarded sentence of death to appellant Shankar Kanu alias Shankar Sao. The sentence of rigorous imprisonment for life was awarded to appellants Anil Uraon, Manohar Kumar and Ashish Kumar Rai for their respective convictions under Section 396 of the Indian Penal Code. They were also directed to pay fine of Rs. 5,000/- each and in default in paying the fine were directed to suffer further R.I. for six months each. The learned Judge did not pass any separate sentence under Section 412 against any of the above noted appellants. As regards appellant Ram Chandra Mahto, he had been convicted for the charge under Section 414 of the Penal Code and he was directed to suffer rigorous imprisonment for two years for committing that particular offence. Awarding sentence of death to Shankar Kanu alias Shankar Sao necessitated submission of the records of the trial 3 court to this Court under Section 366 Cr.P.C. and, as such, the above noted death reference. Besides, appellant Shankar Kanu alias Shnakar Sao also preferred his appeal with other appellants. 2. The facts of the case as per the F.I.R. and the evidence of witnesses are as follows:- The deceased Papiya Ghosh was an academician, teaching History in one of the premier institutions of Patna, the capital city of Bihar, namely, Patna Women‘s College. She was a Bachelor, but was residing in a very big house. Her parents, it appears, had earned huge fortunes and different plots of land were acquired by them in the posh area of the city, known as Patliputra Colony. The house in which the deceased was living was house No.168 in the Colony. The other house bearing No.168A of the locality was situated just by the side of the house in which she was living. It appears from the evidence that a maid servant, namely, Malti Devi was accompanying Papiya Ghosh since her very childhood who was working in the household on account of being employed by her parents and she was residing in a separate room in the same house. Pipiya Ghosh had authored many books and was living a comfortable life. Her household was fitted with many modern electronic gadgets. 4 3. It appears, things were normal in the night intervening 2nd/3rd December, 2006 and both Papiya Ghosh and her maid servant retired to their beds after meals. No one knew what happened in the dead of night. There was no movement of a soul till the morning of 3.12.2006 when another maid servant, namely, Geeta Devi,P.W.5) came there to perform her course around 7-7.15 A.M. She came shouting to P.W. 1 Neeta Aditya to tell her that in spite of having pushed the call bell, there was no response from inside. 4. P.W.1 Neeta Aditya could say that she and others of her family thought that Papiya Ghosh had taken ill and, as such, she accompanied Geeta devi( P.W.5) to the house of Papiya Ghosh and pressed the call bell but no one came to open the door. She found that the gate of the compound had no lock and, as such, she entered into the verandah of the house from that gate and pressed the call bell again. Getting no response from inside, she pulled the door which opened. Calling the deceased by her name, P.W.1 entered inside along with P.w.5 and found that articles in the first room were all scattered and the T.V. which used to be there was missing. The Almirah of the other room was open and most of the articles were lying on the ground. P.Ws. 1 and 5 entered the 3rd room which was the bed room of Papiya Ghosh and 5 found that her dead body was wrapped into a quilt and it had partially slipped towards the ground. There was blood on the quilt and one of her legs was outside it. She was dead. On touching the feet of Papiya Ghosh she felt it cold and when she turned out the quilt, she found that her omentum had come out. 5. Both P.Ws. 1 and 5 came out shouting and frightened. People started dropping in. When some of them had reached, they entered inside the other rooms and it was found that in another room, which was under occupation of the maid servant, she had also been killed by piercing another weapon into her belly. All the articles of the household were scattered or found missing. The computer, music system, T.V. and most of the household articles, it appeared, had been looted away. 6. As may appear from the evidence of P.W.1 and other witnesses, the police was informed telephonically. It reached there and Circle Inspector Nagendra Kumar Singh (P.W. 23) came there along with his patrolling party. He inspected the inner parts of the house and he found that in one of the rooms situated on ground floor towards south west of the house, the dead body of Papiya Ghosh was lying which was covered with a quilt. The quilt was soaked with blood and the face was uncovered. There was a deep cut injury on the belly. The deceased had bled and there 6 were cut wounds also on her neck, cheeks, left eye and right forehead. The deceased had bled from her ears too. There was another wound also. 7. There was another room which was connected by a door with the room situated west of the above noted room of Papiya Ghosh and the maid servant of Papiya Ghosh, aged 60—65 years, was found lying dead by her belly. P.W. 23 found a deep cut mark on the belly of Malti and whole of the floor of the room splashed with copious blood. Almirah, attaché cases and boxes were found open and the articles scattered all over. The computer, its printer, monitor, C.D. player, cordless phone, Sony colour T.V. of 21‖, washing machine, ornaments, cash and a Maruti 800 car bearing registration no. BR IV 5129 were found missing. The mobile phone of Papiya with Sim No.9334110212, was also found missing. P.W. 23 gave the above details which he could get at the spot, probably from persons assembled and noted that the full details of other articles could be provided by the family members of Sushri Papiya Ghosh. 8. P.W. 23, Circle Inspector Nagendra Kumar Singh who was the Officer-in-charge of Patliputra Police Station, drew up his own statement in the form of Ext.7 and entrusted the investigation to S.I. Kumar Abhinav (P.W. 28). On the basis of Ext.7, Ext.8 the F.I.R. of the case was drawn up at 7 9.15 A.M. on 3.12.2006 and P.W.28 S.I. Kumar Abhinav took up the investigation. 9. While investigating the case, P.W. 28 recorded the statement of the informant, inspected the place of occurrence, i.e., the house No.168 of late Papiya Ghosh which had on its south west the other house of the family bearing no. 168A. He inspected the place- of- occurrence-rooms and noted down their descriptions in the case diary. He found a blood stained knife on the bed over which late Ghosh was lying and the whole of the drawing room was found in a disorderly condition. It was not that things were scattered in the room and other places of the ground floor, rather, things were also found in disorganized and disorderly fashion on the upper floor also. The grill gate which was fixed in the boundary wall of the house was also found unlocked though barbed wire had been fixed at the top of the boundary wall from all around. The suit cases, boxes, etc. kept on the floor were also found in a disarray. P.W. 28 found that there were marks left on account of removal of different articles from the household and further found that there was tyre mark left on account of movement of the vehicle and that the articles kept in the Almirah were all scattered. 10. The inquest reports, Exts. 3 and 3/1, were prepared by S.I. K.P.Singh by the orders of 8 Circle Inspector Nagendra Kumar Singh. The statements of witnesses present at the place of occurrence were recorded. The photograph of the scene of the occurrence was also taken by hiring the services of the photographer. 11. The kitchen- knife which was found on the bed of Papiya Ghosh was seized by P.W.28 by preparing seizure report, Ext. 11, in presence of two witnesses Aisan Kumar (P.W. 15) and Jesan Kumar( P.W. 26) who were the grand sons of deceased Malti Devi. Some of the blood soaked clothes, like, the mattress, quilt, sleeping gown and underwear were also seized by preparing seizure memo Ext.11. 12. It came into light during course of investigation that Papiya Ghosh had a cellular phone with Sim No. 9334110212 and that had also been taken away by the criminals and, as such, a request was made to the service provider M/S Reliance India Ltd. for supplying the call details of the said cellular phone along with time of its activation and the location of tower details. 13. It appears that considering the nature of the offence and its impact on social order, Senior Superintendent of Police, Patna, formed an investigating team consisting of Circle Inspector Nagendra Kumar Singh (P.W.23) S.I. Abhaay Narayan Singh( P.W.25), the officer-in-charge of Gardanibagh 9 Police Station and S.I. K.K.Singh( P.W. 27), the then officer-in-charge of Budha Colony Police Station, S.I. Ajay Kumar, the then officer-in-charge of Kotwali Police Station, who were to assist P.W. 28 in investigation. 14. Six steel knives were recovered from the room where Papiya Ghosh was murdered along with other articles which had blood stains over them the seizure of the knives was witnessed by the above noted witnesses, P.W. 15 and P.W. 26. 15. As may appear from the evidence of P.W.28, S.I. Kumar Abhinav and P.W. 25 S.I. Abhay Narayan Singh who were also the members of the investigating team formed by the Senior Superintendent of Police, Patna, that the Manager of Reliance India Ltd. informed P.W. 28 S.I. Kumar Abhinav that a call had been made at 12.30 P.M. from the cellular phone of the deceased which had been taken away by the criminals on to another cellular phone bearing Sim No. 9334134807 and that the tower location of the call was in between the clinic of Dr.Hai and Kurji. This information was passed on by P.W. 28 to the higher police Officers. P.W.25 was directed to investigate into the details of the call as to who had made the call from the cellular phone bearing Sim No. 9334110212 to another phone bearing no.9334134807. P.W. 25 investigated into it and found that the 10 cellular phone which received the call was registered in the name of one Ashok Kumar( p.W. 17). P.W. 28 questioned Ashok Kumar by calling him to his Police Station and he admitted that indeed he had received a call from the cellular phone of the deceased and was asked by the caller as to where he was and further that he should switch off his cellular phone( P.W. 25, paragraph 1). This information was given to the investigating Police Station Patliputra. P.W. 25 got further direction and accordingly he came to Patliputra Police Station and Ashok Kumar( P.W. 17) was questioned by all the Police Officers including the Investigating Officer( P.W. 28). He stated that he could take them to the person who had given the call to P.W. 17 from the area described by him as Kurji Balupar. Accordingly, a team of Police Officers consisting of Circle Inspector-cum-Officer-in-charge of Patliputra Police Station, K.N. Singh, Circle Inspector-cum- officer-in-charge of Kotwali Police Station, Ajay Kumar, Circle Inspector-cum- Officer- in-charge of Patliputra Police Station, Circle Inspector Nagendra Kumar Singh and the Investigating Officer of the case, (P.W. 28) set out with P.W. 17 at about 7 P.M. and reached a place described as house of one Jalandhar Rai situated in Kurji locality. P.W. 17 pointed to them a particular room and when it was got opened two persons, that‘s,appellants Manohar 11 Kumar and Ashish Kumar Rai were found sleeping there. On search of that particular house Sony Colour T.V. of 21‖, music system of Phillips, a L.P.G. cylinder, a pearl neckless and many other articles were recovered as per details contained in seizure memo Ext. 11/12 available at pages 525 to 527 of the Paper Book. The seizure memo was prepared in respect of the seized articles in presence of two witnesses and a copy of seizure memo Exts. 11/12 was also given to both the appellants Ashish Kumar Rai and Manohar Kumar. 16. The two appellants Manohar Kumar and Ashish Kumar Rai were questioned by the police after being arrested at the very place and they confessed to their guilt of committing the offence along with other accused persons, namely, Shankar Kanu alias Shankar Sao, Sanyog Rai, Ashish Kumar Rai and Md. Mustakim in the night intervening between 2nd/3rd of December, 2006 and pointed out that those were the articles which belonged to the deceased Papiya Ghosh and had been removed by them after committing their murders. On further questioning the two above named appellants Manohar Kumar and Ashish Kumar Rai pointed out the whereabouts of Shankar Kanu alias Shankar Sao. 17. The police, accordingly, came to Chauhan Apartment situated in New Patliputra Colony and found Shankar Kanu alias Shankar Sao sleeping in the 12 servant room. Shankar Kanu alias Shankar Sao was arrested and searched and the cellular phone of the deceased Papiya Ghosh bearing Sim No.9334110212 was recovered from him. Shankar Kanu alias Shanker Sao was questioned there and he confessed to his guilt and pointed out that the articles which were looted from the house of Papiya Ghosh after committing her murder were, in some part, lying at his house and some were in possession of his companions and that he could get them recovered after going to those places. Accordingly, the Police brought Shankar Kanu alias Shankar Sao, firstly, to his house situated in the same locality Kurji, Balupur, and searched the room belonging to him. On opening a box, the police found the owner book in respect of the vehicle of Maruti Car of Papiya Ghosh as also the photo copy of the driving licence which had the photograph of Papiya Ghosh over it. Some bank cheques, already bearing signature of Papiya Ghosh, were also found there. Those articles were seized after preparing the seizure memo along with other articles, as may appear from the evidence of P.W. 28 in paragraph 38, which corresponds to the seizure memo Ext. 11/4, available to us at pages 530 and 531 of the Paper Book. A copy of the seizure memo was made over to appellant Shankar Sao also. 18. The three apprehended appellants were brought thereafter, with seizure witnesses on account 13 of being led by appellant Shankar Kanu alias Shankar Sao to the garage of one Harinandan Singh which was a tin roofed structure, situated by the road side and the same was searched by the police officers. The Maruti Car 800 having no number plates either in front or back of it and which had chassis no.SB-308-IN- and 178912 and Engine No.F.8 PIN 2483877 was found kept there. Inside the vehicle was found a lock upon which a particular number was engraved. Other articles as per details available to us in paragraph 38 of the evidence of P.W. 28 (which correspond to the seizure memo Ext. 11/5.) were also found. On the back of the seat of the vehicle some clothes were found bundled up in a piece of cloth and those were saries and different wearing apparels of the deceased. Accordingly, those were also seized as per the above seizure memo. 19. The three accused who were in custody, namely, appellant Shankar Kanu alias shankar Sao, Manohar Kumar and Ashish Kumar Rai promised the police to lead them to accused Sanyog Rai, Md. Mustakim and Anil Uraon who had also some parts of the theft properties in their respective possessions. Accordingly, the raiding party along with the accused persons in custody, came to the house of accused Sanyog Rai. Sanyog Rai was not found inside the house, but the house as per description in paragraph 43 of 14 the evidence of P.W. 28 was searched. From inside a room situated in the southern part of the house, a Flatron computer monitor of L.G. make, Key board, Microsoft CPU, of L.G, two speakers, a printer of H.P., the cheque book in respect of S/B Accounts No. 106160 containing cheque numbers S/B 198571 to 198580 of which those bearing from serials no. 198571 to 198574 had been utilized and which account was held by the deceased in Allahabad Bank as also the Pass Book of S/B accounts of Punjab National Bank,bearing S.B.Account No.177440 were recovered. The seizure list was prepared in respect of the recoveries made from the house of accused Sanyog Rai, a copy of which was handed over to his father Nagina Rai. This seizure memo is Ext. 11/6 which is available to us at page 534 of the Paper Book. 20. The police party with three accused in custody started from the house of Ram Sanyog Rai to the house of appellant Anil Uron, who as per information given by the arrested accused, was also in possession of certain properties belonging to the deceased. While proceeding towards the house of Anil Uraon, the police found a person moving on the road and that particular man was pointed by the three accused as appellant Anil Uraon. He was stopped and questioned and gave his name as Anil Uraon and readily confessed to his guilt finding the three 15 other accused in custody. He was searched. His cloth had some blood mark on it and from the pocket of his pant Pound-currency- notes two in number, each of 20 denomination were recovered which had been issued by the Bank of England and which bore numbers as indicated in paragraph 44 of the evidence of P.W. 28. The other recovery was of an Allwyn lady watch of golden colour fitted with leather belt, an ornament, which articles were also seized vide seizure memo ext.11/7, a copy of which was handed over to appellant Anil Uraon. 21. On questioning Anil Uraon, it came into light that the front and rear plate numbers of the car of the deceased had been handed over to one M/s Munna Arts for repainting by the accused persons. Accordingly, all the accused persons in custody were taken by the police to the saidM/s Munna Arts and during search the two number plates were found there which had new numbers written over them as BR-IR-1881 which inscription was fresh and new. 22. The owner of the said Munna Arts was questioned by the police and he has been examined as P.W. 11 in the case, who admitted that his profession was creating number plates of different vehicles. He stated that the three appellants brought by the police to his house on 16.12.2006 had handed over to him the two number plates for repainting on 11.12.2006. This 16 witness P.W. 11 had identified the two accused as Shankar Kanu alias Shankar Sao and Anil Uraon in court during his evidence as may appear from his evidence in paragraph 11. P.W. 2 further stated that the number which was previously written on the two number plates and which had been defaced by rubbing could be read by him and that number was BR-IV- 5129. He had been told by the accused to write No.BR-1R-1881 and, accordingly, he had created the new number over the old number plates which had been seized by the police from his shop. The seizure memo in respect of two number plates has been marked Ext. 11/8. The two number plates have also been marked material exhibits as may appear from Paragraph 4 of the evidence of P.W. 11. It may appear further from the evidence of P.W. 11 that he had noted down the number desired to be painted by the accused persons on the reverse side of the two plates for memory purpose, so that the number was correctly written on the plates( P.W. 11, paragraph 8). 23. After having recovered the two number plates recreated on the number plates of the vehicle of the deceased, as indicated above, the raiding party moved further from that place to come to the tyre puncture repairing and air filling shop of accused Md. Mustakim Mian which was situated at Makhdumpur Digha, and which was found closed by putting a lock on a 17 Chachari gate(manufactured from Bamboo) on it. A Micro Oven made by Nikai, Japan, was found concealed amidst the old tyres in the south-eastern corner of the shop. It was further found that the micro oven was bundled into an old window curtain. The police party found a Tata phone of white colour, another phone set of Beetel make, a cordless phone set of Sony carrying some descriptions over it along with a charger and an umbrella of blue colour over which Mist Harbour was written and an automatic umbrella of blue and white colouer, brass plates and other utensils used in worship, rituals brass candle stand were also seized by preparing the seizure memo Ext. 11/3. The police returned back along with the seized articles and the arrested accused persons. Md. Mustakim was also not found and could not be arrested till date of judgment. 24. During questioning of the accused persons on 16.12.2006 at 5.30 P.M. it was learnt by the police that the washing machine which was removed from the house of the deceased was given to appellant Ram Chandra Mahto, a practicing Advocate who was residing in Ashiyana Nagar under Shastrinagar Police Station, Patna, and, accordingly, the house of appellant Ram Chandra Mahto was searched. It was a pucca house of appellant Ram Chandra Mahto and the police found there a fully automatic washing machine with black paint on its rear side. This machine was 18 seized and seizure memo Ext. 11/10 was prepared. The washing