Death Reference no. 10 of 2006 With Cr. Appeal no. 1230 of 2006 With Cr. Appeal no. 1250 of 2006 With Cr. Appeal no. 01 of 2007 ====== IN DEATH REFERENCE No.10 OF 2006 ------- State of Bihar --------------------- Appellant Versus Vijay Prasad & Ors.--------------- Respondents With IN Criminal Appeal no. 1230 of 2006 1. Bhuneshwar Prasad @ Muneshwar Prasad 2. Mahesh Prasad 3. Ajay Kumar Prasad 4. Vijay Prasad 5. Dhananjay Prasad ----------- Appellants versus The State of Bihar ------------ Respondent ------- For the appellants: Mr.Kanhaiya Pd.Singh Senior Advocate and Mr.Ashutosh Kumar With IN Criminal Appeal no. 1250 of 2006 Bipin Chaudhary ----------- ---- Appellant Versus The State of Bihar -------------- Respondent ------ For the appellant: Mrs. Soni Shrivastava With IN Criminal Appeal no. 01 of 2007 Baiju Yadav --------- ---------- Appellant Versus The State of Bihar ------------ Respondent -------- For the appellant: Smt.Anjana Prakash And Mr.Sudish Kumar For the State-Respondent: Mr.Ashwini Kr.Sinha, (In all the appeals) APP ******* Reference made by Sri B.D.Pathak, 1st Additional Sessions Judge, Nalanda at Biharsharif vide letter no.549/06 dated 2nd December, 2006 and appeals against the judgment and order dated 27.11.2006 passed in Sessions Trial no.79 of 2005 arising out of Asthawan (Sare) P.S.case no. 120/04. 2 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., Death Reference and Criminal Appeals arise out of the same judgment and order passed by learned 1st Additional Sessions Judge, Nalanda at Biharsharif in S.T.no. 79 of 2005 convicting the appellants of Cr. Appeal no. 1230 of 2006 under section 302/34 of the Indian Penal Code (in short as the Code) and sentencing them to death. They have also been convicted under sections 307/34, 386/34 and 120B of the Code as well as 27 of the Arms Act but no separate sentence has been awarded. The appellant of Cr. Appeal no. 1 of 2007 has been convicted under section 302/34 of the Penal Code and sentenced to death. He has also been convicted under sections 307/34, 386/34 and 120B of the Penal Code and also under section 27 of the Arms Act but no separate sentence has been awarded. The appellant of Cr. Appeal no. 1250 of 2006 has been convicted under section 302/34 read with 120B of the Code and sentenced to undergo rigorous imprisonment for life and payment of fine of Rs. five lacs and in default further to undergo simple imprisonment for two years. He has further been convicted under section 307/34 of the Code and sentenced to undergo rigorous imprisonment for life and payment of fine of Rs. Two lacs and in default of payment further simple imprisonment for two years. He has also been sentenced to undergo rigorous imprisonment for ten years under section 386/34 of the Code. All the sentences have been directed to run one after another. The learned Additional Sessions Judge has made reference of the case for confirmation of death sentence. 3 2. The incident which has given rise to the present criminal proceedings took place at about 11.00 PM on 4th June, 2004 at Pankaj Chimney Bhatta situated in Brham Asthan Khanda of village Benar P.S. Sare District Nalanda. Informant Abhayanand @ Abhay (P.W.10) lodged fardbeyan on 5.6.2004 at 00.15 hours before the officer incharge of Sare police station alleging therein that in the previous night of 5.6.2004 he was sleeping on the roof of the office of brick kiln and his father and Munshi Krishna Tanti were sleeping in the verandah of the office. Labourers were sleeping in the hut while fire man was sleeping over the kiln. At about 11.00 PM 20 to 30 persons armed with small and big arms arrived. Out of them 8 to 10 miscreants surrounded the office while ten miscreants surrounded the huts of the labourers. They took the labourers and fire man in their command, upon noise the informant got up and saw in the moonlit night as well as in the light of torch flashed by miscreants that the labourers were being taken adjoining west to the kiln while father of the informant and Munshi were made to stand there near the labourers. Thereafter appellant Vijay Prasad told that the amount of ransom is not properly paid by them to appellant Bipin Chaudhary and made protest. He further abused and told that neither he will remain alive nor the brick kiln will continue. Further he told that his brick kiln has been closed. Thereafter the father of the informant requested him and further requested from all the miscreants with folded hand to punish him but to leave the poor labourers but even then the miscreants did not agree and made them to stand in front of the line. Father of the informant with folded hand was requesting by saying that very soon he will send Rs. One lac as ransom to Bipin Chaudhary at the gate of jail but in the meantime appellant Vijay Prasad fired at him from the rifle. Other miscreants also fired from their 4 small and big fire arms blindly and after sustaining injury the injured persons fell down. Some labourers began to flee away to save their lives but the miscreants blindly fired at them. In the moonlit night and in the light of torch flashed by miscreants and in the light of lantern the miscreants were seen who were Vijay Prasad, Ajay Kumar, Dhananjay Prasad, Muneshwar Prasad, Mahesh Prasad, Uday Mahto, Guddu Yadav and Baiju Yadav. All the miscreants fled away towards south. 3. It is further alleged that after fleeing away of the miscreants, the informant somehow came down from the roof and saw that his father Kamta Prasad along with labourers Karu Dharhi, Bishu Dhari, Bishundhar Paswan, Raj Kumar Paswan, Suresh Paswan, Ramsanjiwan Paswan and Krishna Tanti had died at the spot and labourers Sagar Paswan, Birchandra Paswan, Lakhan Paswan and Shankar Dhari had sustained injuries. He further alleged that some labourers named Surendra Tanti, Nand kishore Tanti, Umesh Tanti and one fire man were successful to flee away and save their lives. Much blood had fallen on the ground. Many empty cartridges were found there. Some labourers informed to the villagers about the occurrence. Female labourers and their children were raising alarm. Persons of nearby villagers gathered. Information was sent to the police station. The police arrived. Injured persons were carried to Biharsharif hospital with the help of the villagers. It is further alleged that the reason behind the occurrence is that Vijay Prasad had brick kiln near the brick kiln of the informant which although being older was closed and for that cause Vijay Prasad with the help of local veteran criminal Bipin Chaudhary in a planned manner had demanded Rs. One lac as ransom which was to be sent at jail. Even earlier Vijay Prasad with the help of gangman of Bipin Chaudhary namely 5 Guddu and Udai Yadav had demanded ransom by arriving at the brick kiln of the informant. On the basis of fardbeyan of the informant the police registered Asthawan (Sare) P.S. case no. 120/04 dated 5.6.2004 and after investigation submitted charge sheet. Accused Dina Mahto @ Dinesh Mahto and Ram Pravesh Paswan @ Pairu, however, were acquitted by the trial court. 4. The defence of the accused was total denial of the alleged occurrence and false implication in the case. 5. Thus the sole question now arises for determination as to whether the prosecution has been able to establish the charges against the appellants beyond all reasonable doubt. 6. During the trial the prosecution in support of its case had examined 15 witnesses. Out of them P.W.1 is a witness of seizure list which was prepared on 5.6.2004 at 6.30 AM in respect of 14 empty cartridges, blood stained earth, blood stained bed sheet, lungi and other clothes. The signature of this witness on the seizure list is exhibit-1. He identified the signature of other witness on the seizure list as exhibit-1/1. 7. P.Ws 12 and 13 were declared hostile and they have not said anything against the appellants. P.Ws 11 and 14 are Dr. J.P.Gupta and Dr Uday Shankar Prasad. P.W.11 conducted post mortem examination on the dead bodies of Kamta Prasad, Karu Dharhi, Vinod Ravidas, Sitaram Kewat, Bishundhar Paswan, Rajkumar Paswan, Suresh Paswan, Ramsanjiwan Paswan, Krishna Tanti and Sagar Paswan. Post mortem reports are exhibits 5 to 5/9. P.W.14 was present during post mortem examination as observer. According to P.W.11 all the persons died due to fire arms injury. 8. P.W.2 Pankaj Kumar is son of deceased Kamta Prasad. He stated that 6 at the time of occurrence he was sleeping in the house. He heard noise and came out of the house. He saw labourers Aulad Tanti (P.W.7) in injured condition. He was besmeared with blood. He was raising alarm that the owner of the brick kiln and labourers had been killed. He went to the brick kiln. His brother used to live at the brick kiln. He learnt from his brother and the labourers that 20-25 persons armed with weapons came and made the persons to stand in queue and fired shot at all of them. Nine persons died at the spot and 4 to 5 persons sustained injury. They were telling that adjoining owner of brick kiln namely Vijay Prasad, Muneshwar Prasad, Mahesh Prasad, Dhananjay Prasad and Ajay Kumar had killed them. They were also telling the name of Guddu Yadav and Uday Mahto. Then according to this witness his father Kamta Prasad, Muneshwar Prasad, Munshi Krishna Tanti, labourers Karu Dharhi, Vinod Ravidas, Sitaram Kewat, Bisundhar Paswan, Sagar Paswan, Rajkumar Paswan and Suresh Paswan were killed. Kanhaiya Dharhi, Lakhan Paswan, Birchandra Paswan and Aulad Tanti were among the injured. He further stated that at the time of recording of fardbeyan he was present and had put the signature over the same. He identified his signature exhibit-2. He identified accused Vijay Prasad, Mahesh Prasad, Muneshwar Prasad, Ajay Kumar and Dhananjay Prasad present in the court and claimed to identify other accused persons. P.W.3 Srikant Prasad averred that on 4.3.2004 at 11.30 PM he was at his house. He heard sound of firing. He thereafter heard hulla. He went running towards brick kiln of Kamtaji and there he found nine bodies which were of Kamta Prasad, Krishna Tanti, Karu Dhari, Sitaram Kewat and others. He also found two persons in injured condition. The women were crying and saying that they had identified Vijay. They were also uttering the names of Muneshwar Prasad, Mahesh Prasad, 7 Dhananjay and Ajay among them. They were also stating the names of about 20-25 persons. Then this witness stated that Abhay (P.W.10) was saying that he had identified Vijay, Muneshwar, Mahesh, Ajay and Dhananjay. The inquest reports were prepared by the police in his presence. He identified his signature on the inquest reports which were marked as exhibits 3 to 3/8. This witness identified Vijay Prasad, Mahesh Prasad, Dhananjay Prasad and Ajay Prasad present in the court. In paragraph 58 this witness on recall stated that he did not find any female at the place of occurrence, nor talked to any woman. P.W.4 Kanhaiya Dharhi was declared hostile by the prosecution but he stated that he was in the hut of the kiln of Pankaj Mahto. At about 11.00 PM 12 persons came and lined up all the persons and shot at them. He had sustained fire arms injury on his arm. He however, could not say the name of the persons who shot at him. According to this witness nine persons had died at the spot. 9. P.W.5 Shankar Dharhi was also declared hostile by the prosecution. He averred that he was sleeping at the kiln of Pankaj along with others. Miscreants arrived and made them to stand in a queue and fired shot at them. He also sustained injury. Aulad Tanti also sustained injury. According to this witness nine persons died at the spot. He however, failed to identify the accused persons. P.W. 6 also turned hostile during evidence. He reached at the place of occurrence in the morning and saw the dead bodies. 10. P.W.7 is an eye witness of the alleged occurrence. He averred that he was living in a hut constructed near the kiln of Pankaj Mahto. At about 11.30 PM 25 to 26 persons arrived at the brick kiln. They forcibly overpowered him and made him to sit down. They forced all the persons to assemble at one place. They inquired about their residence and ordered all the persons to stand in a 8 line. Vijay Mahto went behind the back of all the persons and started firing. Thereafter all the accused persons also started firing and of them he identified five persons namely Vijay Mahto, Ajay Mahto, Sanjay, Mahesh and father of Vijay Mahto. Nine persons died at the spot. He also received fire arms injury on the left shoulder. Shankar (P.W.5) and Kanhaiya Dharhi (P.W.4) were also injured. He further averred that after receiving shot injury he ran away. He went running to the house of Pankaj Ji (P.W.2) and narrated him all the facts. He took him to the police station. He underwent treatment at Biharsharif. According to this witness it was moonlit night. He identified only Vijay Mahto, Sanjay, Ajay, Mahesh and father of Vijay. Then in cross examination this witness stated that accused persons were in baniyan and some were in shirt. They had not covered their faces. Then this witness on recall stated that he could not say who killed whom because he had not seen it. 11. P.W.8 Upendra Kumar also turned hostile. He had only seen the dead bodies. 12. Now the next important witness is P.W.10 Abhaya Nandan Singh. He is the informant of this case. He was also declared hostile by the prosecution. He identified his signature on the fardbeyan. This witness stated that the occurrence took place on 4.6.2004 at 11.45 PM. He was sleeping on the top of the roof of his office of brick kiln. When he woke up he saw 20-25 persons. They had made labourers and his father Kamta Prasad to line up in a queue and were firing shot at them indiscriminately. He had seen the miscreants in the light of lantern and of them identified Ajay, Abhay, Dhananjay, Muneshwar, Mahesh Prasad, Udai Mahto, Guddu Yadav, Baiju Yadav and Vijay Prasad. P.W.15 Brajnandan Mehta is the Investigating Officer. He had taken investigation from the first 9 Investigating Officer. He had investigated the case in part. He submitted charge sheet on the direction of the superior officer. This witness had identified the writing and signature on fardbeyan and formal FIR marked respectively as exhibits-6 and ½. 13. It has been argued on behalf of the appellants of Cr. Appeal no. 1230 of 2006 that from the witnesses examined during trial it would appear that there is no iota of evidence against them in the case. In this connection learned counsel referred to the evidence of P.W.2 and contended that he has stated that at the time of occurrence he was sleeping at his village home and learnt about the occurrence. He then referred to evidence of P.W.7 and submitted that this witness has stated that two persons entered in the kholi by masking their faces and as such he could not identify them. This witness also denied to have seen the murder of nine persons and claimed to have become unconscious after assault and regained senses in the hospital. He further argued that P.Ws 4 to 10, 12 and 13 were declared hostile as they did not support any part of the case. He thus contended that statements of witnesses examined by the prosecution suffer from serious contradictions and infirmities. 14. Before I proceed to examine the argument of learned counsel, the background of the incident and the nature of injuries caused to the deceased persons beside other factors require to be properly considered and appreciated. The background of the present incident as disclosed in the fardbeyan is that the appellant Vijay Prasad had a brick kiln near the brick kiln of the informant and the same was closed inspite of being older than that of the informant’s kiln. The kiln of the informant was running smoothly and due to that jealousy, Vijay Prasad with the help of local notorious criminal Bipin Chaudhary (appellant of 10 Cr.Appeal no. 1250 of 2006) lodged in jail had demanded Rs. One lac as ransom on telephone which was to be sent at the jail gate. Threatening was also given to kill and ruin the business of the informant. Even Vijay Prasad with the help of his gang man had demanded ransom by arriving at the kiln of the informant. P.W.2 in his evidence stated before the court that the brick kiln was a new and the brick kiln of Vijay Prasad was old one. He had threatened that he would not allow the brick kiln of the informant to run . He had also demanded Rs. One lac if the informant wants to run his business otherwise he will ruin them. P.W.3 stated that the brick kiln of Vijay Prasad was closed and he was saying that he will get the kiln of others closed. P.W.10 admitted that he had stated before the police that he identified Vijay Prasad in the light of torch who told that as he had not paid the ransom amount to Bipin Chaudhary and so neither you nor your kiln would exist. From the evidence of above three witnesses it appears that due to business rivalry and jealousy, appellant Vijay Prasad had a strong motive to ruin the brick kiln business of his neighbour i.e. the informant for which threatening was also given to the informant. 15. The Supreme Court in the case of Masalti and ors. Vs State of Uttar Pradesh reported in AIR 1965 202 has observed as follows: “It is true that under the Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. But where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it cannot be treated as irrational or unreasonable. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give evidence. But sometimes it is useful to adopt a mechanical test.” 11 “In the case of Jodra Singh Vs State of Rajasthan (2007(4) BBCJ 192 ) the Supreme Court has observed that the Courts are entitled to rely upon a part of testimony of a witness who has been permitted to be cross- examined by the prosecution.” 16. In the background of what has been mentioned above let us now examine the argument of learned counsel. It is true that P.W.2 is a hearsay witness. He learnt about the occurrence from P.W.7. P.W.2 had seen P.W.7 in injured condition. He immediately went to the place of occurrence and saw the dead bodies of his father Kamta Prasad, Munshi Krishna Tanti, labourers Karu Dharhi, Vinod Ravidas, Sitaram Kewat, Bishundhar Paswan, Sagar Paswan, Rajkumar Paswan and Suresh Paswan. He learnt the name of the assailants Vijay Prasad, Bhuneshwar Prasad, Mahesh Prasad, Dhananjay Kumar, Ajay Kumar, Guddu Yadav and Uday Mahto. It has also come in the evidence of this witness that two to four days before the occurrence they had threatened him. P.W.3 is also a hearsay witness. On hearing halla he also went running to the brick kiln of Kamtaji and there he found the dead bodies of Kamta Prasad, Krishna Tanti, Karu Dharhi and others. According to this witness female labourers were speaking the names of Bhuneshwar Prasad, Mahesh Prasad, Dhananjay and Ajay. Aulad P.W.7 told that he had identified Vijay, Bhuneshwar, Mahesh, Ajay and Dhananjay. He also learnt about the altercation between Vijay and Pankaj which had taken place four to five days before the occurrence. P.W.7 is an eye witness. He has narrated the incident. He had identified Vijay Mahto, Ajay Mahto, Dhananjay, Mahesh and father of Vijay Mahto. He also stated that after sustaining injury he immediately went to the house of P.W.2. P.W.7 was a labourer at the brick kiln of P.W.2. He has 12 narrated the incident in court. He has no enmity with accused Vijay and his family members. His presence on the spot was natural. The occurrence took place at about 11.30 PM at the brick kiln. Presence of labourers and employees of the brick kiln at the spot is quite natural. The court cannot expect much corroboration of his evidence. Then come to the evidence of P.W.10. He is the informant of this case. He is son of deceased Kamta Prasad and brother of P.W.2 Pankaj. He was sleeping at the brick kiln and when he woke up he saw 20-25 persons. They had made the labourers and his father Kamta Prasad to line up in a queue and were firing shot at them indiscriminately. He has seen the accused in the light of lantern and of them identified Ajay, Abhay, Dhananjay, Muneswar, Mahesh Prasad, Uday Yadav, Guddu Yadav, Baiju Yadav and Vijay Prasad. The prosecution though declared him as hostile but he has supported the prosecution story. He has also admitted that in the light of torch he identified Vijay Prasad who told that as he has not paid the ransom money to Bipin Choudhary so neither you nor your kiln would exist, upon which his father requested to punish him and to spare the labourers but the accused persons did not agree. I am aware as to how a rustic or semi literate witness behaves in a witness box when he is put in a whirlwind of cross examination especially when the prosecution is conducting trial in a most uninterested manner. The evidence of such witness therefore, cannot be scrutinized on mathematical calculation. The entire evidence has to be considered whether it can be found to be reliable, satisfactory and trustworthy. Some minor contradictions and omissions are bound to occur in the evidence of any witness. The court below has accepted the version of P.Ws 2, 3, 7 and 10 so far as five appellants are concerned and I see no reason to differ with the findings as recorded by the trial 13 court with respect to these five appellants. 17. Learned counsel appearing on behalf of the appellant Bipin Chaudhary of Cr. Appeal no. 1250/06 has contended that it would appear from the evidence on record that this appellant was in jail at the time of occurrence and it is not the case of the prosecution that he was ever present at the scene of the occurrence. Learned counsel further contended that according to P.W.10 co-accused Vijay introduced the name of this appellant by asking as to why he had not paid the amount of ransom to Bipin Chaudhary. Learned counsel pointed out that except such type of evidence there is no evidence to show his involvement in the occurrence. It is admitted position that the appellant Bipin Chaudhary was in custody during and prior to the present occurrence. From the evidence of witnesses it appears that he was not present at the scene of the occurrence. His name was disclosed by co-accused Vijay. To constitute an offence under section 120B of the Code there must be an agreement to commit the offence. Mere disclosure of name of this appellant by co-accused Vijay is not sufficient to lead an inference of conspiracy. There is