Death Reference No. 9 of 2007 With Criminal Appeal (DB) No. 1187 of 2007 With Criminal Appeal (DB) No. 1188 of 2007 *** Reference made by Sri Abhay Kumar, Additional District & Sessions Judge, Fast Track court No.1,Katihar, through Letter No. 397 dated 25th August, 2007 and appeal against the judgment and order dated 23rd and 24th August, 2007, respectively passed by Sri Abhay Kumar,Additional Dist. & Sessions Judge, Fast Track Court No.1,Katihar, in S.T. No. 178/2006 /T.R. No.72 of 2006. *** In Death Reference No. 9 of 2007: The State of Bihar … Appellant Versus Ganesh Singh …Respondent In Criminal Appeal No. 1187 of 2007: Ganesh Singh … Appellant Versus The State of Bihar …Respondent In Criminal Appeal No. 1188 of 2007: Ram Dulari Devi @ Dulari Devi … Appellant Versus The State of Bihar … Respondent *** For the Appellant : Mr. Ashwani Kumar Sinha, A.P.P. (In Death Ref. No. 9/2007) Mr. Rana Pratap Singh, Sr. Advocate with M/s Sumant Singh & Aruni Singh, Advocates (In Cr. Appeal No. 1187 & 1188 of 2007) For the Respondent : Mr. Rana Pratap Singh, Sr.Advocate with M/s Sumant Singh & Aruni Singh, Advocates (In Death Ref. No. 9 /2007) - 2 - Mr. Ashwani Kumar Sinha, A.P.P. (In Cr. Appeal No.1187 & 1188 of 2007) *** P R E S E N T Hon’ble Mr. Justice Shiva Kirti Singh & Hon’ble Mr. Justice Syed Md. Mahfooz Alam *** S.M.M.Alam,J. Death reference under consideration and Cr. Appeal nos. 1187 of 2007 and 1188 of 2007 arise out of the same judgment dated 23rd August, 2007 and order dated 24th August, 2007, passed by Sri Abhay Kumar, Additional District & Sessions Judge, Fast Track Court No.1, Katihar, in Sessions Trial No.178 of 2006/ T.R. No.72 of 2006 whereby he has been pleased to convict both the appellants under section 302 of the Indian Penal Code and has further been pleased to pass sentence of death by hanging till death against convict Ganesh Singh and against appellant Ram Dulari Devi @ Dulari Devi he has passed the sentence to undergo rigorous imprisonment for life and to pay fine of rupees ten thousand and in default thereof to undergo further simple imprisonment for two months. 2. The prosecution case, as per the written report (Ext.3) submitted by Narendra Prasad Singh (P.W.6) in Mansahi P.S. (Katihar) on 14.11.2005, in brief, is that on that date when the informant, P.W.6 was in the banana field situated in front of his village Bari Bathna, P.S. Mansahi, Dist.: Katihar, and had engaged some labourers to do cultivation work in the field, his elder son came - 3 - running towards him. The time was 11’O clock. His son told him that appellant Ganesh Singh was cutting his mother by Hasua. On getting the said information from his son, P.W.6, the informant came running to his house and saw appellant Ganesh Singh holding his wife Sarika Devi (deceased) by her hair. He was inflicting Hasua blow on her body and was dragging her by catching her hair. The informant also saw the wife of Ganesh Singh, his two sons present there armed with “Bhala” and “Dabiya”. As soon as the informant arrived there and wanted to intervene the appellant Ganesh Singh rushed towards him with Hasua in his hand then the informant raised hulla, whereupon, the appellant fled away. On hearing hulla, his neighbour Parikshan Singh along with his wife came there besides Umesh Singh, Sakmu Mian and Rustam Mian and saw the appellant Umesh Singh running away after committing the crime. At the time of occurrence, the informant’s brother-in-law Ashok Singh, P.W.1, was present at his house, who was about to proceed to Gramin Bank for depositing the money. He also witnessed the occurrence. 3. On submission of the written report in Mansahi P.S., Mansahi P.S. case no.71 of 2005 dated 14.11.2005 under section 302/34 of the Indian Penal Code was registered and a formal FIR (Ext.11) was drawn up against both the appellants and their two sons. After institution of the case, the investigation was handed over to P.W.13, Sachidanand Singh, who investigated the case but charge - 4 - sheet was submitted by Sri Ashok Singh, Sub-Inspector of Police of the said police station, against all the four accused of this case on the basis of which learned Chief Judicial Magistrate took cognizance of the offence against all the four accused of the said case but later on trial of two sons of the appellants, who were minor at that time, were separated and they were sent to Juvenile Court for trial. Thus, only two appellants were put on trial and they were convicted and sentenced by the impugned judgment as stated above. 4. The defence case as it is disclosed from the trend of cross-examination as well as the statement of the accused recorded under section 313 Cr.P.C. is that the appellants were falsely implicated in this case due to land dispute between the parties and no such occurrence in the manner as alleged by the prosecution had taken place. 5. In order to prove its case, the prosecution has examined altogether sixteen witnesses in this case, namely, Ashok Singh (PW1), Parikshan Singh (PW2), Rajendra Singh (PW3), Bhola Rai (PW4), Rakesh Kumar (PW5), Narendra Prasad Singh (PW6), Ranjeet Kumar (PW7), Alok Kumar (PW8), Dr. Om Prakash Singh (PW9), Nishant Kumar (PW10), Rajendra Singh (PW11), Raghunandan Paswan (PW12), Sacchita Nand Singh (PW13), Ashok Kumar (PW14), Nasir (PW15) and Pradeep Kumar Rai (PW16). The defence has also examined one witness, namely, Janardhan Singh (DW1). - 5 - 6. Besides the oral evidence some papers have also been brought on records on behalf of the prosecution which are exhibits. Ext.1 is the inquest report of the deceased, Ext.2 is the seizure list, Ext.2/a is another seizure list, Ext.3 is fard bayan, Ext.4 is post mortem report, Ext.5 is signature of the Officer-in-charge on the FIR, Ext.6 is the SD entry, Ext.7 is the endorsement on written report, Ext.8 is Malkhana register, Ext.9 is signature of the Officer-in-charge over charge sheet, Ext.10 is charge-sheet and Ext.11 is the formal FIR. Besides the above exhibits, there are two material exhibits i.e. one Dabiya (Material Ext.1) and one Bhala (Material Ext.2). 7. In this case, P.W.1 Ashok Kumar Singh, who happens to be the brother in law of the informant, PW2 Parikshan Singh, a neighbour of the informant, PW6 informant Narendra Pd. Singh and PW10 Nishant Kumar, son of the informant and deceased are the eye witnesses of the occurrence and, as such, their testimony are very vital for arriving at the right conclusion. The rest witnesses, who are co- villagers of the informant, are either hear say witnesses or part eye witnesses. First of all, I would like to incorporate the evidence of PW6, who is the informant of this case. His evidence is as follows: Deceased Sarika Devi was his wife. The occurrence took place on 14.11.2005 in between 10-11 AM. At that time, he was watching the work done by the labourers in his banana field situated at a distance of about 200 yards east of his house. At that time, his younger son - 6 - Nishant Kumar @ Bittu came there shouting and told him that appellant Ganesh Singh, his wife Dulari Devi and his two sons Manoj Kumar and Rabindra Kumar were cutting his Mummy (mother), whereupon, he rushed towards his house. He has further deposed that when he arrived there he saw appellant Ganesh Singh holding his wife by her hair and dragging her. He was giving repeated blow on her body by Hasua. By that time, his wife had fallen down. As soon as he arrived there and enquired what was happening, the appellant Ganesh Singh rushed towards him with Hasua in his hand and shouted that he would also be cut, whereupon, he (PW6) ran towards the road raising hulla. On hulla, people of the locality, namely, Parikshan Singh (PW 2), Sakmu Mian, Rustam Mian, Nasir Mian rushed towards his house. His brother-in-law Ashok Singh (PW 1) also started raising hulla. On arrival of the witnesses and the people of the locality, the appellants along with their sons fled away. While they were fleeing away, the wife of Ganesh Singh assaulted his wife with Bhala. The informant as well as the witnesses tried to catch hold of Ganesh Singh but he fled away with Hasua riding on a bicycle. After fleeing away of appellant Ganesh Singh, he went near his wife but by that time she was already dead. Thereafter, he gave written statement with regard to the alleged occurrence to the police. The written statement of the informant has been marked Ext.3. He has further deposed that the Sub-Inspector had prepared inquest report of the dead body of his wife in presence of - 7 - Alok Kumar (PW 8) and Rakesh Kumar (PW 5) and both had put their signature on the inquest report. He has further deposed that the Sub-Inspector had also seized blood stained earth, blood stained Bhala and some broken bangles as per the seizure list prepared by him which was signed by PW 8 Alok Kumar and PW 5 Rakesh Kumar. Thereafter, the Sub-Inspector sent the dead body for post mortem. PW 6 has also identified appellants Ganesh Singh and Dulari Devi in dock. In cross-examination, this witness has deposed that he had no land dispute with Ganesh Singh. At paragraph 10 his attention was drawn by the learned defence counsel that he had stated before the police that there was land dispute between him and appellant Ganesh Singh to which he denied but paragraph 6 of PW 13 (Investigating Officer) establishes that PW 6 had stated before the police that he had land dispute with appellant Ganesh Singh. The defence has drawn his attention that in the written statement he has not stated that his son Nishant had told him that the appellant Ganesh Singh along with his wife and two children, namely, Manoj Kumar and Rabindra Kumar were cutting his Mummy to which he replied that he had made the said statement in his written statement. However, the perusal of the written statement (Ext.3) shows that about assault by Dulari Devi wife of Ganesh Singh and her two sons there is no mention in it. Thus, the evidence of the informant shows that he for the first time introduced in court the story of assault to the deceased by appellant no.2 Dulari - 8 - Devi wife of Ganesh Singh and her two children Manoj Kumar and Rabindra Kumar which story does not find mentioned in the written statement (Ext.3) of PW 6. Likewise, it appears that PW 6 has also disowned his statement made under section 161 of the Code of Criminal Procedure with regard to the fact that there was land dispute between him and appellant Ganesh Singh. 8. The next important witness on the point of occurrence is PW 10 Nishant Kumar, who is the son of the informant as well as the deceased. According to the case of the prosecution, he was the first person, who had given information about the occurrence to PW 6. This witness is aged about only ten years old and, so, he is a child witness. His evidence is that Sarika Devi was his mother. She has been murdered by appellant Ganesh Singh. The said occurrence had taken place about one year ago and he was eye witness of the said occurrence. Time was 11 AM. At that time, he was playing in the bamboo clump adjacent to his house. At that time, his Mummy was inside her house. Ashok Singh (PW 1), who happens to be his Fufa, came to his house. Thereafter, his Mummy came out of his house for giving fodder to goat. His Mummy called him and then he came from bamboo clump and stood near the mango tree. Thereafter, his Mummy started combing her hair. At that moment, appellant Ganesh Singh having Hasua and stone in his hand came near his Mummy and firstly he threw stone on his Mummy. His mummy escaped unhurt and then - 9 - appellant Ganesh Singh caught hold of his mummy by her hair from behind and started cutting (attacking) her with Hasua. His Mummy raised hulla, whereupon, his Fufa came out from inside the room. Then Ganesh Singh started dragging away his Mummy giving Hasua blows to her. He dragged his Mummy up to his Darwaza and then two sons of Ganesh Singh and his wife also started assaulting his Mummy with their weapons. He rushed to call his father, who was working in the field. His father came running on hearing about the incident. His father also raised hulla and then Ganesh Singh ran towards his father to assault him. On raising hulla by his father, people started assembling and then Ganesh Singh, his wife and children fled away. After that he along with his father went near his Mummy, who was already dead. After the occurrence, the Sub-Inspector came there who took his statement. PW 1 has also identified accused Ganesh Singh in dock and claimed to have identified the other accused. At paragraph 8 of his cross-examination, he has deposed that PW 2 Parikshan Singh and appellant Ganesh Singh are his neighbours. This witness has also denied this fact that there was previous enmity between his father and appellant Ganesh Singh. 9. The next important witness on the point of occurrence is PW 1 Ashok Singh. He happens to be the brother-in-law (Bahnoi) of the informant. His evidence is that the alleged occurrence took place on 14.9.2005 at 10.45 AM. At that time, he was at the house of his - 10 - brother-in-law Narendra Prasad Singh (informant). At that time, the wife of Narendra Prasad Singh was combing her hair standing near the stair. He heard the cry of Sarika Devi (wife of Narendra Prasad Singh), whereupon, he came out of the house and saw appellant Ganesh Singh attacking her with Hasua. Sarika Devi (deceased) was trying to run away. At that time, two sons of Ganesh Singh and the wife of Ganesh Singh were also present there and they were also assaulting the deceased Sarika Devi with their weapons. He started raising hulla and the son of Narendra Prasad Singh rushed towards the field to call his father, who was working in his banana field at that time. Narnedra Prasad Singh (informant) came running there and seeing the occurrence he also raised hulla. Appellant Ganesh Singh threatened him that if he came near him then he would also be cut. On hulla, people of the locality assembled and then appellant Ganesh Singh along with his wife and children fled away. Thereafter, he went near Sarika Devi, who was found dead. There were altogether 30-40 sharp cutting injuries on her body. Amongst the witnesses he identified Parikshan Singh (PW 2), who was neighbour of the informant. He was first to reach there on hulla. He had also identified Rustam Mian (not examined). He has further deposed that the Sub- Inspector had prepared inquest report of the dead body and had also seized the bhala. The hair of Sarika Devi and blood were found scattered at the place of occurrence. In paragraph 10 of his cross- - 11 - examination, he has deposed that the house of Parikshan Singh (PW 2), Rajendra Singh, Baleshwar Singh, Tarkeshwar Singh, Mahadeo Singh, Sahdeo Singh, Mahabir Singh, Rustam Mian (all not examined) are adjacent to the PO house. This witness has also denied this fact that he had stated before the police that there was enmity between informant Narendra Prasad Singh and appellant Ganesh Singh from before but the Investigating Officer has accepted that this witness had stated before him with regard to the enmity between the informant and appellant Ganesh Singh. 10. Another eye witness Parikshan Singh (PW 2) is the next door neighbour of the informant as well as the appellant Ganesh Singh and it appears from his deposition that he is not related either with Narnedra Prasad Singh (informant) or accused Ganesh Singh and thus, he appears to be an independent witness. His evidence is as follows: He has got his house adjacent north to the house of the informant. The occurrence had taken place about nine months ago. The time was between 10-11 AM. At that time, he was working in his field in which he had grown cauliflower. The said field is by the side of the house of the informant Narnedra Prasad Singh. He heard the cry of a child and went running towards the Darwaza of Narendra Prasad Singh where he saw appellant Ganesh Singh assaulting the wife of Narenda Prasad Singh with Hasua. He ran there and raised hulla, whereupon, several persons reached their and then he left the place. He has further - 12 - deposed that Sub-Inspector had come to the place of occurrence and recorded his statement. He has identified appellant Ganesh Singh in dock. He has deposed that due to assault wife of Narendra Prasad Singh died. Again at para 7, this witness has deposed that his house as well as his field (field of cauliflower) are both at the same place. At paragraph 8 of his cross-examination, he has deposed that he stayed at the place of occurrence for only one minute and when he reached at the place of occurrence about 100-150 persons were surrounding the wife of Narendra Prasad Singh, who was lying on the ground. PW 2 has also denied the suggestion that the appellants were falsely implicated by Narendra Prasad Singh due to land dispute. 11. Admittedly, PW 2 is a neighbour of the informant and being not related either to the informant or to the accused he is an independent witness. His evidence as well as the evidence of PW 10 will show that he was the first person who had reached at the place of occurrence on hearing hulla. So, his evidence is of much importance. His evidence shows that amongst the accused he has named only appellant Ganesh Singh and so far the other persons i.e. Dulari Devi wife of Ganesh Singh and her two children are concerned, this witness has not attributed any overt act to them and even their presence at the spot at the time of alleged occurrence has not been admitted by this witness. I will discuss this aspect at the appropriate stage. - 13 - 12. The next witness on the point of occurrence is PW 3 Rabindra Singh. He is not an eye witness of the occurrence but is definitely an important witness as his evidence shows that immediately on hearing hulla at about 11 AM on 14.11.2005 he rushed to the place of occurrence and saw appellant Ganesh Singh running away towards south with a blood stained Hasua in his hand and when he reached at the place of occurrence he saw Sarika Devi (deceased) lying on the ground in pool of blood and by that time she was already dead. Thus, the evidence of PW 3 also shows that he had seen only appellant Ganesh Singh running away with a blood stained Hasua after the occurrence and there is nothing in his evidence that other accused persons specially appellant Dulari Devi was also seen present at the place of occurrence with weapons in their hands. 13. PW 4 Bhola Rai is a hearsay witness and his evidence also shows that after the occurrence he was told that appellant Ganesh Singh had killed the wife of Narendra Prasad Singh. 14. PW 5 Rakesh Kumar is also a hearsay witness. He is also the witness of preparation of inquest report and seizure list. His evidence shows that at the time of occurrence he was at his shop where someone told him that appellant Ganesh Singh had killed the wife of Narendra Prasad Singh. On getting that information, he came to the place of occurrence and saw the dead body of the wife of Narnedra Prasad Singh lying in the pool of blood. He has further - 14 - deposed that the Sub-Inspector had prepared the inquest report and he had put his signature over the same. He has further deposed that the Sub-Inspector had also prepared the seizure list of Bhala, broken bangles, broken hairs and blood stained earth and he had also put his signature over the said seizure list. On his identification, the inquest report and the seizure list were marked Ext. 1 and 2 respectively. Thus, the evidence of PW 5 discloses that he had heard the name of appellant Ganesh Singh, who had killed the informant’s wife. In cross-examination, he has deposed that he can not say the name of the persons, who had told him that appellant Ganesh Singh had killed the wife of the informant which makes his statement inadmissible. 15. PW 7 Ranjeet Kumar is also a hearsay witness. His evidence is that the occurrence had taken place on 14.11.2005 at about 11 AM. At that time, he was at his house and on hearing hulla he went to the place of occurrence where he saw Sarika Devi lying dead in pool of blood and some persons were telling that Ganesh Singh had killed her by assaulting her with Hasua. His evidence also shows that he did not name any other accused including appellant Dulari Devi, who had assaulted the deceased. 16. PW 8 Alok Kumar is also a hearsay witness. He happens to be the nephew of the informant. His evidence is that on 14.11.2005 his uncle told him on telephone that appellant Ganesh Singh had killed his aunt (deceased Sarika Devi). On getting the said - 15 - information, he came to the house of the informant and saw his aunt lying dead in pool of blood. Some persons told him that the appellant Ganesh Singh, his wife and his two children had cut his aunt. He has further deposed that the Sub-Inspector came there, prepared inquest report as well as the seizure list and on those papers he also put his signature. The evidence of this witness also shows that he has not disclosed the name of the persons, who had told him that his aunt was assaulted by appellant Ganesh Singh, his wife and his two sons and so, his evidence with regard to the assault on deceased is inadmissible in evidence. 17. PW 11 Rajendra Singh is also a hearsay witness and his evidence is similar to the evidence of PW 8 and since he has not disclosed the name of persons, who had disclosed to him that the appellant Ganesh Singh, his wife and two children had killed the wife of Narendra Prasad Singh, his evidence is also inadmissible. 18. Similar is the fate of PW 12 Raghunandan Paswan, who is also a hearsay witness. 19. The next witness on the point of occurrence is PW 15 Nasir but he has been declared hostile by the prosecution as he has deposed that he does not know anything about the occurrence and as such, his evidence is of no help to the prosecution. - 16 - 20. So far PW 16 Pradeep Kumar Rai is concerned, he is simply a formal witness and he has proved the formal FIR which has been marked Ext.11. 21. From the scrutiny of the evidence of the above said witnesses, it appears that PW 1, 2, 6 and 10 are the eye witnesses of the occurrence but PW 1, 6 and 10 are highly interested witnesses as PW 10 is the son of PW 6 (informant) and PW 1 is the brother-in-law of PW 6. So, the only independent eye witness is PW 2 Parikshan Singh. His evidence shows that he had named only appellant Ganesh Singh as the assailant of deceased Sarika Devi and has not named any other accused including the appellant Dulari Devi. The other witnesses whose