DEATH REFERENCE No.2 OF 2009. - - - - - - - From reference made, vide letter no. 33 dated 1st April 2009 of and against the judgment and order respectively dated 28th March 2009 and 1st April 2009 passed by Sri Jhula Nand Jha, Addl. Sessions Judge, cum-Fast Track Court No. V, Bhagalpur in S.T. No.1271/ 07 / Tr.No.158 /07. - - - - - - - - STATE OF BIHAR-----------------------------Appellant. Versus MD. BADRUDDING------------------------Respondent. With CR. APP (DB) No.376 OF 2009. MD. BADRUDDIN-------------------------Appellant. Versus STATE OF BIHAR---------------------Respondent. ----------- For the Appellant : Mr. Ajay Kumar Thakur, adv. Mr. Amish Kumar, Adv. For the State : Mr.Ashwani Kumar, Sinha, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE CHANDRA MOHAN PRASAD. THE HON’BLE MR.JUSTICE DHARNIDHAR JHA. C.M.Prasad,J The Death Reference and the Criminal Appeal aforesaid arise out of the judgment of conviction and order of sentence respectively dated 28th March 2009 and 1st April 2009 of the Additional Sessions Judge cum-Fast Track Court No.V as passed under Sessions Trial No. 1271 of 2007/Tr.No. 158 of 2007 whereby the appellant has been convicted under Section 302 of the Indian Penal Code and he has been sentenced to be 2 hanged by neck till he is dead. 2. The prosecution case depicts the story of an ill fated woman, the deceased who was killed in her house when she was there with two minor children and the husband had gone out of station for appearing at an examination for getting employment. The case of prosecution as set forth in the fard-beyan of the informant Mukund Chaudhary (P.W.5), which was recorded by S.I. Sanjit Kumar Sinha (P.W.7), Officer In-charge, Sabour Police Station on 5th June 2006 at 7:00 A.M. at the Darwaja of the house of the deceased, is that on 5th June 2006, at 6:00 P.M., he (informant) received a telephonic information that his sister Sanjita Devi (deceased) had been killed and on learning this, he came to the house of the deceased and saw that his sister, the deceased was lying dead in the Angan of the house. He has stated that Sanjita was married to Sanjay Chaudhary 15 years ago and they were living as tenants in the house of Baldeo Sah near Shitala Sthan at village Sabour. He also stated that his brother-in- law Sajnjay Chaudhary was running a poultry firm in the house for earning his livelihood. He further stated that on 2nd June 2006, his brother in-law Sanjay Chaudhary (P.W.2) had gone to Bhopal for appearing at a recruitment examination in the Railways. He also stated that he learnt from his Bhagina Lucky 3 Kumar (P.W.4), aged 12 years and also some others of the locality that the appellant Md. Badruddin with one unknown had entered into the deceased‟s house in the preceding night at 12:30 O‟clock and had tried to rape her and in the attempt of rape, he had dragged her in the Angan and had killed her there by throttling her. As to the motive for the occurrence, the informant stated that some days ago his brother in-law (P.W.2) had sold his tempo bearing Regd. No. BR-10B / 0173 to the appellant and the sale money of the same had remained due for the realization of which an altercation had also taken place between them. The informant suspected that due to this grudge also the appellant committed the offence. The informant claimed that his Bhagina Lucky Kumar (P.W.4) and some neighboring persons had also seen the occurrence but any neighbor was not named in the fard- beyan (Ext-4/2). On the basis of the fard-beyan, the FIR (Ext-5) for the offence under Section 376/302/34 IPC was registered at the Police Station and the investigation commenced. On completion of investigation charge-sheet for the offence under Section 302 IPC was filed against the appellant who was put on trial as a result of which he was convicted and sentenced as above. 3. As many as seven witnesses were examined by the 4 prosecution. P.W.1 Anil Kumar Chaudhary, the Mamera brother of the deceased is a resident of the locality who learning about the occurrence, had came to the P.O. and had seen the dead body of the deceased and he had also learnt about the occurrence from the deceased‟s son Lucky Kumar (P.W.4) who stated as an eye witness to the occurrence. P.W.2 Sanjay Chaudhary is the husband of the deceased who had gone out-station on the date of occurrence and on getting information about the occurrence, he came back and learnt in detail about the occurrence from his son Lucky Kumar (P.W.4) who has claimed to have seen the occurrence. P.W.3 Atul Kumar Mallik is the doctor who had conducted the P.M. post mortem on the deceased. P.W.4 Lucky Kumar is deceased‟s son who deposed as an eye witness to the occurrence. P.W.5 Mukund Chaudhary and P.W.6 Manoj Kumar Chaudhary (informant) are the brothers of the deceased, who had learnt about the occurrence in the ensuing morning and then they had come to the deceased‟s house, P.O. where the dead body was lying. P.W.7 Sujit Kumar Sinha is the I.O. 4. Out of the witnesses it is proper to discuss the evidence of the doctor first. The doctor (P.W.3) has stated that he had conducted post mortem on the dead body of the deceased Sanjita Devi aged 20 years (The age ‟20 years‟ appears to be a 5 mistake of the reading of the P.M. Report (Ext-1) by the doctor wherein the age has been described actually as „28 years‟) on 5th June 2006 and found as follows: (I) Reddish fluid was coming out of right angle of mouth. The nail bed and lips were cyanosed. The face and conjunctiva were deeply congested. Injuries: (i) One cescentic abrasion 1”x3”x1/8” was present on upper part of left side of face 1” inner to left ear. Another linear abrasion ¼”x1/8” was present on outer aspect of left side of face near its middle. One bruise 1”x1/3” was present on left side of chin. On cutting skin over nose underlying tissues were bruised near its opening. The mucosa of lower lip was abraded in an area of 1”x1/4” near its middle. (ii) On dissection of neck and chest, the mucosa of larynges and trachea was found deeply congested and contained reddish fluid. On opening the chest cavity, both lungs were found deeply congested and exuded dark frothy blood on cutting. Chambers of left side of heart were empty while right side contained dark fluid blood. Genital Examination: (iii) Deceased was found to wear a stripped panty which was 6 not disturbed. Under the panty, 4 pieces of clothe were found in front. These pieces of clothe and panty had stains over them. They were handed over under 3 packets to the Choukidar for sending them to the FSL, Patna to detect the presence of blood and seminal stains. Genital and inner aspect of the thing did not show any injury. The hymen had several old tears and was present as carunculous myrtibor . However, vaginal swab was taken and was sent to the Department of Pathology, JLNMCH, Bhagalpur for detection of human spermatozoa. Opinion: Injuries were ante mortem, grievous and dangerous to life in ordinary course of nature and caused by closure of mouth and nostril by some soft and blunt object, such as, fingers and palms of assailant or assailants. Cause of death: Asphyxia and shock due to smothering. T i m e : Within 12 hours to 24 hours from the time of P.M. Examination. The original P.M. Report and its carbon copy which was in the writing and signature of the witness was produced and provedas Ext-1.The doctor also proved Ext-2 and 7 Ext-3 which were the pathological report and reply to the query made by the I.O. 5. As would appear from the evidence of the I.O. (P.W.7, Para-5) that on inspection of the P.O. Angan he had found a mat spread in the Angan where the dead body was found and some vomited substance was there on the mat. In this context the I.O. had made a query from the doctor vide Ext-8 whether in a case of killing by smothering by way of closure of mouth and nostril, vomited substance could be found at the P.O. Angan or not and the reply submitted vide Ext-2 was that in such a case of killing, vomited substance could be found in the Angan if there was undigested food in the stomach at the time of killing. Ext-3 is the pathological report mentioning that on examination of the vaginal swab, no spermatozoa were found. It will be relevant to mention here that deceased‟s son Lucky Kumar (P.W.4, Para-2) has stated in his evidenced that his mother (deceased) had taken meal with them in the night before going to bed. The Col.21 of the P.M. Examination Report (Ext-1) mentions pasty food was found in the stomach. Thus there are materials and evidence to show that there was undigested food in the stomach and the vomited material could be found in the P.O. Angan when the deceased had been killed by smothering by way of closing the 8 mouth and nostril. The Doctor witness was subjected to a very short cross-examination and there is nothing to discredit his testimony on any count. 6. The panty and 4 clothes under the front of panty on the deceased, were sent to FSL, Bihar, Patna for chemical examination report. The Report of FSL is as Ext-9 on the record. It mentions the articles received as follows: The packet marked-A contained one panty and four cloth pieces- pink yellow, blue and black which were further marked 1,2,3,4 and 5 respectively in this laboratory. (1) The Panty (Janghia) marked-A/1 bore reddish brown stains over large areas It also bore gheysh white stains which were stiff to feel and which produced characteristic bluish white fluorescence in ultra violet light. (2) The pink cloth piece marked –A/2 bore reddish brown stains over large areas. It also bore some greyish stains which were stiff to feel but they did not produce characteristic bluish white fluorescence in ultra violet light. (3) The yellow cloth piece marked –A/3 bore reddish brown stains over large areas. It also bore greysh 9 stains which were stiff to feel but they did not produce characteristic bluish white fluorescence in ultra violet light. (4) The blue cloth piece marked-A/4 bore some white stains which were neither stiff to feel nor did they produce any characteristic bluish white fluorescence in ultra violet light. (5) The black cloth piece marked-A/5 bore blackish stains at places. It also bore some white stains which were stiff to feel but they did not produce characteristic bluish white fluorescence in Ultra Violet light. The result of examination is mentioned as below: (1)Blood has been detected in the exhibits as noted below:- (i) Exhibit marked-a/1 . .Over large areas. (ii) Exhibit marked-a/2 …… Over large areas. (iii) Exhibit marked-a/3 …. ...Over large areas. (iv) Exhibit marked-a/4…. …. At places. (2) Blood could not be detected in the exhibit marked –A/4. (3) Blood mixed semen has been detected in the exhibit marked A/1. 10 (4) Spermatozoa could not be detected in any of the exhibits marked A/2, A/3, A/4 and A/5. (5) Serological report on origin and group of blood and semen would follow. Thus, semen was detected over the panty found on the deceased. Semen is whitish liquid containing sperm produced by male animal/human. Presence of semen on the panty is indicative of the fact that a male body was responsible for causing it. 7. Before entering into discussion of the evidence of the eye witnesses, it is further proper to discuss the evidence of the Investigating Officer who had visited the P.O., prepared the inquest report, took statement of the witnesses and sent the dead body for P.M. Examination and received the P.M. Examination report and also report from the FSL where the undergarment and some clothes under it was sent for chemical examination. 8. The I.O. (P.W.7) deposed that on 5th June 2006 at 6:30 A.M., he was the Officer In-charge of Sabaur Police Station, when he received telephonic message that near Shitala Sthan, Sabour Poultry farm a female had been killed in the 11 preceding night. On this information, he recorded S.D.Entry No. 769 dated 5th June 2006 and with Chaukidars Jayant Kumar and Naresh Paswan and two armed constables proceeded to the P.O. He further deposed that on reaching at the P.O. he recorded the statement of informant Mukul Chaudhary (P.W.5) and witness Manoj Kumar (P.W.6) had also put his signature in witnessing the recording thereof. The informant‟s statement i.e. fard-beyan has been marked as Ext-4/2. The first information report which was registered on the basis of fard-beyan was proved as Ext-5. The I.O. described about the P.O. as the Angan of the house of Baldeo Sah in village Shitala Sthan, Sabaur and there was a poultry farm in the building. As would also appear from the evidence of other witnesses that the deceased, her husband and children were living in the house and were running a Poultry Farm in two rooms of the house. The I.O. mentioned that in south of the Angan there was a Khaprail (tiled) room which was the living room of the deceased. It was further stated by the I.O. that towards west and south of the Angan there were two other Khaprail rooms which were being used as Poultry Farm and net barricades and poultry fodders were there. About the boundary of the house, the I.O. mentioned that towards north there was barren land, towards south there was house of Ramesh 12 Kumar Dwivedi, in the east there was pitch road and in the west there was mango orchard of Sukhdeo Sah. Thus in the three sides of the house, there were barren lands, road and mango orchard and only in one side of the boundary, there was house of one Ramesh Kumar Dwivedi. 9. The I.O. stated that he prepared the inquest report which has been proved as Ext-6. Then he stated that he had found one 7-inch long hair from the left fist and two hairs each 1 inch long from the right fist of the deceased. The three hairs were seized and seizure-list was prepared by him and it was proved as Ext-7. 10. The I.O. further stated at Para-6 that he raided the house of the appellant, but he (appellant) was found absconding. He further stated that he filed a petition for issuance of process for apprehension of the appellant. 11. The I.O. further deposed at Para-8 that he received the supervision notes of the Deputy Supedrinte4ndent of Police which mentions that the appellant had long hairs on his head and, thus, it was opined by the Deputy Superintendent of Police that the long hair found in the fist of the deceased was of the appellant. Thus, the supervision notes indicated that after apprehension of accused-appellant, long hair were found on his 13 head which indicated that the long hairs in the fist of the deceased were of the appellant. 12. The I.O. also stated about having received the report of the FSL and also the reply to his query regarding vomited substance found on the P.O. The report of the FSL is Ext-9. The I.O. was cross-examined by the defence but any material omission or contradiction in the evidence with respect to the earlier statement of witnesses made during the investigation was not proved during the cross-examination. 13. Out of the witnesses on the point of occurrence, P.W.5 Mukund Chaudhary, the informant deposed that his sister Sanjita (deceased) was married to Sanjay Chaudhary and they were living as tenant at Sabour in the house of Baldeo Sah where they also carried on poultry farm business. He further deposed that his Bhagina(sister‟s son) Lucky Kumar (P.W.4) had informed him in the morning at about 6 O‟clock and thereafter his two Bhaginas, namely, Lucky Kumar and Ishu had come to him and had disclosed to him about the occurrence. Then he went to the P.O. He further deposed that Lucky Kumar had disclosed to him that in the preceding night at 12:30 O‟clock, Badruddin (appellant) had mounted over his mother (deceased) and had closed her mouth and thereby killed her. He also 14 deposed that he had gone to the P.O. along with his wife, brother Manoj Kumar (P.W.6) and the two Bhaginas. People of the locality had assembled there. He gave his statement before the Police which was recorded at the P.O. The statement, namely, fard-beyan is Ext-1. He identified the appellant in the dock during his examination. He stated that he had learnt about the occurrence for the first time from his Bhagina Lucky Kumar. Then he informed his wife and elder brother Manoj (P.W.6). He further deposed that when he had reached the P.O., he had also got some knowledge from Anil Chaudhary, Birju Chaudhary, Prahlad Chaudhary, Niranjan Das etc. who had assembled there. But he has not said what he had learnt from these persons. Naturally, these persons who had assembled at the P.O. would have talked to the informant and they would have communicated their knowledge about the occurrence, but no such person is said to have claimed before him as witness to the occurrence. There is nothing in the cross-examination of this witness to discredit his testimony. This witness who happens to be the informant of the case is not an eye witness, but the has deposed about the earliest version of his Bhagina Lucky Kumar (P.W.4), the sole eye witness to the occurrence that the appellant was seen mounting over the deceased and to have closed her 15 mouth and thereby suffocated her to death. 14. The most important witness of the occurrence is Lucky Kumar (P.W.4). This witness, when he was examined on 18th December 2008, was aged about 11 years and was reading in Class-V. The date of occurrence is the night of 4th June 2006. Thus, the witness would be of 9 years age at the time of occurrence. While recording the evidence of this witness, the learned trial court has observed in the deposition itself that the boy was of proper understanding. Thus this boy was able to know and tell about the things he had seen. He has deposed (Para-1) that he along with his parents and younger brother aged 5 years was living in his house and on the date of occurrence, his father was not in the house as he had gone to Bhopal for appearing in one examination. He further deposed that in the night of 4th June 2006, at about 12.30 O‟clock while he was asleep in his house, he woke up hearing the cries of his mother and then he came into the Angan and saw that the appellant Badruddin had mounted over his mother and he had closed the mouth of his mother, who was trying to cry out. He further deposed that seeing him there, Badrudding (appellant) threatened him that if he disclosed about the occurrence to any one then he would kill him and his father and saying so he fled 16 away from the place. He continued to depose that when he came close to his mother, he found that she was dead and her limbs had spread out. He also deposed that he cried but nobody came there. By this expression it appears that the boy means to say that he wept there, may be loudly, but nobody came. He also deposed that he had identified the appellant Badruddin in the light of electric bulb. He also deposed that Badruddin was on visiting terms to his father. Therefore, he knew him from before. He also deposed that his father was running poultry farm in his house. This witness had also identified the appellant in the dock. He also deposed that he informed his Mama (maternal uncle Mukund Chaudhary, informant) who had also come to the P.O. in the morning. In his cross-examination he deposed that his Mama Mukund Chaudhary was not living in that house and that Mama‟s house situated at a distance of about 2 Kms. from his house at Tilka Majhi Chowk. He also stated at Para-9 of his cross-examination that he and his brother Chiku Kumar had gone to his Mama‟s house at Tilka Majhi Chowk at about 6 O‟clock in the morning and he had traveled on a tempo. He further deposed that on reaching his Mama, he talked to his mama‟s wife (Mami) and the children in the house. He also deposed that he remained there till 7 O‟clock and along with 17 two persons he had come back to the P.O. house on a tempo. He also deposed that at that time he could not talk to his father who had gone to Bhopal. He further deposed that since last 3 years, his family was living as a tenant in the house of Baldeo Sah whose residence situated at a considerable distance from there. At Para-15 of his cross-examination, he admitted that Sabour Police Station situated at a distance of 20 steps from his house, but he had not gone to the police Station before going to Tilka Majhi i.e his Mama‟s house. Then he said that after talking to his Mama Mukund Chaudhary, he had given his statement before the Police. At Para-17 of his evidence, he has deposed that the relationship between his parents was good and that his Mummy was not on visiting terms with any other persons. He has deposed that there were three rooms in the house and he was sleeping in the house situated towards north. He also deposed that there was small boundary around his wall and things outside house could be seen from the window. He also deposed at Para- 21 that in the night of occurrence at 8 O‟clock he had taken his meal with his mother. He has also deposed that towards north of his house, there was house of one Mandhan and in the south, the house of Sukhdeo situated. He further deposed that those persons were not on visiting terms to his family, but there was 18 not any kind of dispute with them. He also deposed that his mother was Inter Pass educated lady. On considering the evidence of this witness, it is found that his evidence is quite natural, proper and trustworthy. There is nothing in his evidence to discredit his testimony on any count. Though he happens to be the sole eye witness to the occurrence, but in the facts and circumstances of the case and on considering the intrinsic value of his evidence, it is felt that the evidence of this witness can be fully relied upon. 15. P.W.1 Anil Kumar Chaudhary is the Mamera brother of the deceased who was residing at Sabnour in Prem Nagar locality. He deposed that he learnt about the occurrence in the ensuing morning and then he went to the P.O. house, the house of Baldeo Sah where his Bahnoi Sanjay Kumar was living as a tenant. He further deposed that he found the dead body of his sister Sanjita lying in the Angan of his house. He also depose that Lucky Kumar was present there who disclosed to him that in the preceding night at 12 O‟clock hearing cries of his mother, he (Lucky Kumar) went into the Angan and saw that Badruddin (appellant) who had mounted over his mother (deceased) was pressing her neck and mouth and that seeing him (Lucky Kumar), he (appellant) fled from there. This witness stated that 19 he had reached the P.O. in the morning at 7 O‟clock and that the Police had recorded his statement. Thus this witness fully corroborates the evidence of sole eye witness Lucky Kumar who had disclosed to him what ever he had seen at the earliest time in the ensuing