DEATH REFERENCE No.1 OF 2007 --------- Reference made vide letter no. 90 dated 24.2.2007 by Shri Ram Pravesh Sharma, lst Additional Sessions Judge, Patna in Sessions Trial No. 87 of 2004. ---------- THE STATE OF BIHAR …………………………………………… Appellant Versus SANAULLAH KHAN ……………………………………….. Respondent W I t h CRIMINAL APPEAL (DB) No.379 OF 2007 -------- Against the judgement of conviction dated 8.2.2007 and order of sentence dated 23.2.2007 passed by Shri Ram Pravesh Sharma, lst Additional Sessions Judge, Patna in Sessions Trial No. 87 of 2004. ------ SANAULLAH KHAN ………………………………… Appellant Versus THE STATE OF BIHAR …………………………… Respondent ---------- For the Appellant: Mr. Kanhaiya Prasad Singh, Sr. Advocate, with M/s Nematullah, Ashutosh Kumar, Atal Bihari and Jyotasana, Advocates For the State: : Mr. Lala Kailash Bihari, Sr. Advocate. ------- P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA THE HON'BLE MR. JUSTICE DHARNIDHAR JHA J U D G E M E N T Navin Sinha,J. The present appeal arises from a judgment of conviction dated 8.2.2007 under Section 302, 201 and 120-B of the Penal Code and death sentence dated 23.2.2007 passed by the lst Additional Sessions Judge, Patna in Sessions Trial No. 87 of 2004 giving rise to Death 2 consumption of about 20-25 Kg of milk. The appellant had opened a ‘Khatal’ (hereinafter referred to as ‘cattleshed’) at the ‘Bakri Market’ (hereinafter referred to as the ‘goat Market’) adjacent east of the Pearl Cinema Hall. There were approximately 13 – 14 buffaloes and one cow in his cattleshed. The appellant requested the father of the informant (Ravindra Prasad-deceased) and who agreed to purchase milk from him. When the quality of the milk deteriorated the father of the informant complained. On 12.12.2002 at about 4 PM the appellant came to the Tea Stall with co-accused Md. Hamid and Arvind to demand payment. On accounting, Rs. 1000/- was found payable. The deceased paid Rs. 500/- and offered to pay the balance later. He told the appellant that he was no more interested in purchasing milk from him in view of the poor quality of the milk leading to loss of customers at the Tea Stall. The appellant got agitated and stated that he would not allow the Tea Stall to run, and threatened him with dire consequences, to kidnap him within days and teach him a lesson. On 16.12.2002, about 8 PM Arvind, (another deceased) servant of the appellant came and told the father of the informant that the appellant was calling him. Ravindra Prasad went with Arvind. He did not return even after half an hour. Arvind came back and asked the younger brother of the informant, Sunny Kumar (also deceased), to accompany him, as called for by the appellant. Both, the father and brother of the informant, did not return till the morning of 17.12.2002. Being suspicious, the informant started to search for them. He went to the cattleshed of the appellant which was closed, and neither the appellant nor his servant was found present. 3 refusal to purchase milk from him. The fardbeyan was signed as attesting witness by the informant’s cousin, Sanjay Kumar – PW 7. 3. The dead bodies of Ravindra Prasad, Sunny Kumar and one unknown were recovered on 17.12.2002 at about 9 PM from what is described in the Inquest Report as, the room meant for keeping fodder at the goat market situated to the east of Pearl Cinema Hall, PS Kotwali. The room was stated to belong to the appellant. PW 6 and PW 7 were witnesses to the three Inquest Reports which were marked as exhibits 5, 5/1 and 5/2. The first seizure list, marked as Exhibit 6, was witnessed by PWs 1 & 2, Vijay Kumar and Baleshwar Rai at about 11 PM for recovery of blood stained earth, small pieces of husk and small cuttings of blood stained paddy husk from the cattleshed of the appellant in the goat market. 4. The appellant was taken into custody on 23.12.2002. The appellant made his confessional statement on 25.12.2002 in presence of PW 8, the Investigating Officer, recorded by Sub Inspector Rajendra Tiwari. The disclosures made by him led to another search and seizure, marked as Exhibit 6/1, on 25.12.2002 at about 8.30 PM witnessed by PWs 1 & 2, Vijay Kumar and Baleshwar Rai for recovery from a garbage pile 25 yards north-east from the cattleshed of the appellant at the goat market of (1) blood stained old half shoes of plastic, two pairs, (2) blood stained white cotton ‘Gamchha’ in which ‘Sultali’ (joot string) and nylon rope were tied, (3) blood stained chequered ‘Gamachha’ of green colour in which a sachet of ‘Tiranga’ (tobacco-mix) was tied in one corner, (4) plastic rope of green colour about 8-9 cubits, (5) piece of blood stained 4 5. The police after investigation submitted chargesheet under Section 302/34 of the Penal Code and the accused were put on trial. Co-accused Md. Hamid was acquitted while the appellant was convicted and sentenced. 6. This Court on 30.7.2008 directed the recording of additional evidence on two points (1) to get the confessional statement of the appellant on record as exhibit either by further examination of the Investigating Officer, Rajendra Mishra, PW 8 or by examining SI Rajendra Tiwari, who recorded the fardbeyan of the informant and the confession of the appellant, as a Court Witness, (2) the material exhibits, as per seizure allegedly made on disclosure by the appellant to be brought before the Court and PW 6 should be further examined by the court in respect of those articles for identifying them. The confessional statement of the appellant has then been marked as Ext. 1 after recall of PW 8 and the knife at item 10 of the seizure list, Exhibit 6/1, marked as Ext. 8. 7. The defence of the appellant in the statement of accusation under Section 313 was a complete denial of the material facts and allegations. Ownership of the Khatal, recovery of articles and the dead bodies inclusive of the story of selling milk to the deceased and the alleged threat a few days earlier when the deceased stopped purchasing milk from him due to poor quality were all denied. However, the appellant did not adduce any evidence in his defence. 8. Learned Senior Counsel Sri Kanhaiya Prasad Singh, on behalf of the appellant, submitted that the present was a case of 5 well known to PW 6 as evident from the fardbeyan and his deposition in court. There was thus no occasion for him not to identity the deceased at the time of the Inquest Report. For like reason, PW 7, a cousin of the informant shall also be presumed to recognize Arvind but did not do so as an Inquest Report witness. There is no material on record how and in what manner the dead body of Arvind was identified by his father through a photograph. The father of Arvind has not been examined. Arvind may be alive and was purposely being withheld by the prosecution in an effort to prove that the cattleshed belonged to the appellant because PW 3, an independent witness had stated that it was Arvind who was running a cattleshed at the old goat market. PW 4 had stated that the appellant was never engaged in a milk business. PW 6 for the first time stated in court that on 12.12.2002 the appellant had threatened to kill his father in an effort to embellish his case. In view of the strained relations and the altercation on 12.12.2002, it was an unnatural conduct on part of PW 6 not to have become cautious when his father did not return and his younger brother was also summoned. Nonetheless, PW 6 waited patiently till morning to start searching for them. PW 7 states that PW 6 and his father never ran a Tea Stall and lived in the village. PW 6 stayed at his house at Kumhrar in the night of 16.12.2002 and left his house at about 10-11 AM on 17.12.2002. PW 7 stated that the three dead bodies were lying in front of Pearl Cinema. He claims to have stated under Section 161 Cr.P.C. that the dead bodies were recovered from the room of the Pearl Cinema where the cattleshed of the appellant was situated but then again stated that he had not 6 9. The alleged recoveries from the garbage pile, a public place accessible to all, on 25.12.2002, mentioned in the seizure list do not pertain to the appellant in any manner and it is for the prosecution to prove the link of the appellant with the same which has not been done. Likewise, the blood stained earth and paddy husk do not lead to any conclusion of the guilt of the appellant. PWs 1 & 2 had gone hostile and denied having signed any seizure list. The seizure from the garbage pile was not made in the presence of PW 8, the Investigating Officer, and neither was it signed by him. There was no recovery on any confession by the appellant. It is for this reason that materials allegedly recovered on disclosure were not marked as exhibits during trial and were not produced or marked exhibits even after the order for additional evidence by this Court dated 30.7.2008. 10. PW 7 an attesting witness to the fardbeyan lodged on 17.12.2002 at 4 PM states that he learnt that his uncle and cousin were missing at 7 PM. The FIR itself is therefore collusive and non- examination of S. I. Rajendra Tiwary who recorded the fardbeyan has caused prejudice to the appellant. The prosecution, aware of this contradiction, purposefully withheld the witness and for which adverse inference be drawn under Section 114(g) of the Evidence Act. In fact, the fardbeyan has been recorded and FIR registered after recovery of the bodies falsely implicating the appellant. This shall fully explain the contradiction in the statements of PW 7 with that of PW 6. Column 3(b) of the FIR with regard to the time of receipt of the information was blank for that reason. 7 12. PW 8 does not state the source of information for identification that the room in question was under occupation of the appellant. The recovery of the bodies was not from any cow shed but from a room. This is contrary to the statement of PW 6. He has further stated that none of the witnesses had identified any articles seized. He has further stated that he did not find any item during search near Sona Medical Hall. 13. The appellant was taken on police remand on 23.12.2002 and his confession obtained on 25.12.2002. The confession recorded on the third day of police custody is itself evidence of it having been obtained under duress. Sub Inspector Rajendra Tiwari, who recorded the confession, was not the Investigating Officer. The confession has been retracted under Section 313 Cr.P.C. PW 8 also says that in the confession the appellant stated he was innocent. It was submitted that if that part of the confession leading to recovery is an integral part of the confession and cannot be segregated, the entire confession including the recovery part is inadmissible in evidence. The statement of the appellant that the knife used by him in committing murder, the rope used for tying hands and legs of the deceased persons, blood stained clothes, shoes and sandals of the deceased concealed by him and recovered after disclosure made by him was one integral whole of a confession before the police and the entire statement was inadmissible. Reliance for the proposition was placed on AIR 1966 SC 119 (Aghnoo Nagesia Vrs State of Bihar). The trial court has classified the case as one of circumstantial evidence. If the 8 evidence is complete. There was a relationship between two of the deceased and the accused as purchaser and supplier of milk for the Teastall over a period of three months. Differences arose between them with regard to the quality of milk and accounts. The deceased also told the appellant that they shall not purchase milk any further from him. The appellant then threatened to teach them a lesson. The motive for the crime was therefore clearly existent. Deceased Ravindra left with Arvind in front of the informant on the call of the appellant and did not return. Arvind came back again and took deceased’s son along with him to the appellant. Nothing further transpired thereafter. PW 6 went home expecting that the two would come back given the fact that the appellant was well known and there had been a business relationship between them. PW 6 therefore did not suspect any foul play at this time. The opportunity to kill the deceased who were present at the premises of the appellant is an important link in the chain of circumstances. The conduct of PW 6 in starting to search for his father and brother when they did not return home till the morning was perfectly natural. The recovery of the dead bodies, followed by the confession and on basis of which items belonging to the deceased were recovered thereafter was clearly admissible under Section 27 of the Indian Evidence Act. That part of the confession inadmissible under Section 25 of the Indian Evidence Act can easily be segregated from that admissible under Section 27 of the Indian Evidence Act. Reliance was placed on 2008) 1 SCC (Cri.) 72 (Anil alias Raju Namdev Patil Vrs Administration of Daman and Diu) and (2008) 1 SCC (Cri.) 109 (Gagan Kanojia and anr 9 conviction. The absence of any forensic report of the blood found is of no consequence. On disclosure made by PW 6 of the ownership of the room being with the appellant, large amount of blood has been found there. The room where the bodies and blood was found was not a Slaughter House suggestive of animal blood. Section 8 of the Evidence Act, 1972 makes motive, preparation and the previous or subsequent conduct relevant which are all to be found in the present case. The motive accrued on refusal to purchase milk. The preparation consisted of the earlier threats held out by the appellant and calling the father and brother of the informant one by one to the room. It was lastly submitted that the conduct of the appellant was highly relevant. Deceased Arvind was his own servant. Presumably he was an aid in the killing of the other two deceased as manifest I from the Post Mortem Report indicating tying of their hands and feet which the appellant could not have done alone. If Arvind was found dead in the room belonging to the appellant on account of an act of other than himself, surely as the employer the appellant would have taken legal steps with regard to the death either accidental or deliberate by another. The absence of any such effort on his part lends credence to his complicity in the crime. 16. Three persons have been killed. The first two deceased were called one after the other. Their hands and feet were tied and neck of the first deceased was also tied. One of them, (either the father or the son) must have been a witness to the trauma of watching the other being killed. Realising that the accomplice Arvind was also a witness to 10 17. In the opinion of this Court, the occurrence can be can be compartmentalized in four categories; the business relationship between the parties and the souring of the same, the conduct of the appellant in summoning the father and brother of the informant, the recovery of their dead bodies along with that of Arvind, servant of the appellant, from the room stated to belong to the appellant and lastly the recovery of the belongings of the first two deceased along with the weapon of offence on the information furnished by the appellant. These are the links in the chain of circumstances for an occurrence to which otherwise there is no eye witness, what Criminal Jurisprudence defines as circumstantial evidence. 18. In a case of circumstantial evidence, the links in the chain of circumstances on which the hypothesis of the guilt of the accused is founded must be complete, inconsistent with any other conclusion. If the links be not established raising the scepter of any other hypothesis inconsistent with the guilt of the accused, thereby putting forth two possible views of the occurrence, the benefit thereof must go to the accused. The continuity in the chain of circumstances must be established beyond doubt. 19. In Padala Veera Reddy vs. State of A.P. (AIR 1990 SC 79) it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; 11 evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 20. The appellant is stated to be having 14 to 15 cattle in his Cattleshed. He had a captive market in the tea stall run by the informant and his family for 25-30 Kgs of milk daily. The abrupt stoppage of the same at the behest of deceased Ravindra naturally infuriated the appellant. He called Ravindra to his premises either to cajole him or to translate his earlier threat into action to revive his captive market. His servant, deceased Arvind, was also present. Presumably, unable to persuade Ravindra, the appellant tied him up as evident from the Inquest Report and then had his younger son, Sunny, aged about 17 years also summoned. Clearly the appellant intended thereby to bring more pressure to resume purchase of milk from him. The failure to persuade led to the tying up of Sunny also as evident from the Inquest Report. Arvind, whose livelihood was dependent on the income of the appellant, was only too eager to help. But, when the appellant realized the status of Arvind as a witness also to the assault upon Ravindra and Sunny, obviously the appellant decided to leave no traces by doing away with Arvind also. The appellant has not disputed the identity of Arvind as his servant. Once the prosecution claimed that one of the dead bodies was of Arvind, identified by his father, the onus lay on the appellant to demonstrate that his employee was alive by either producing him in Court or leading evidence to that effect. 21. The appellant had business relations for the past months with the tea stall. The deceased Ravindra and Sunny were summoned 12 unsuspecting till then. Had it been otherwise, the witness aged about 21 years on the date of occurrence would not have allowed his younger brother aged about 16 years to go to the appellant while his father was yet to return. He would have made efforts in the night itself to trace them if he had any suspicion of the conduct of the appellant. Not unusually, on a cold winter night, PW 6 retired to the warmth of the quilt. When the two deceased did not return till the morning, only then, PW 6 suspected foul play and after having looked for them in vain lodged the missing persons report on 17.12.2002 at 4 PM. At the first opportunity he expressed his suspicion to the Police against the appellant and took the police to the room of the appellant in the Pearl Cinema Hall premises where fodder was also stored and the three dead bodies found. Huge amount of blood was found clotted and stained on the floor and the wall. The bodies were concealed in the heap of husk. Adjacent to the cemented floor towards the east of the room was a hut made of straw used for keeping the cattle where blood was also found. It is, therefore, apparent that PW 6 used the terminology cattleshed in the loose sense to include both where the cattle was kept and the fodder room adjacent to each other. 22. The informant stated that he was running the tea stall for several years. PW 7, an attesting witness to the fardbeyan and the Inquest Report both of which he did not deny, stated that the informant and others never ran a tea stall. In the facts and circumstances of the case, apparently, PW 7 is not a reliable witness and therefore was stating falsehood when he said that on the night of 16.12.2002 the 13 preparation of the Inquest Report classifying the body as unidentified does not impress the Court. His Post Mortem Report reveals injuries and perforation of the eyes, deep slitting of the throat from left to right about 6” X 1.1/2” X bone deep. The face was clearly disfigured in a manner making identification difficult. In this perturbed atmosphere of identifying the bodies both of his father and younger brother, the informant cannot be faulted with for non-identification of Arvind so as to cast doubt on the entire prosecution case .Arvind has been identified by his father and the non-examination of his father has not caused prejudiced to the appellant in any manner as the appellant does not deny at any stage that the body was that of his employee Arvind. Surely, if the employee of the appellant was missing or had otherwise been done away with, natural conduct of the appellant would have been to take appropriate steps in that regard by search or reporting to the Police. The appellant did no such thing. 24. When a crime takes place, it is not unusual for a Police team to proceed for the place of occurrence. The case is then entrusted to an officer to investigate. Clause 161 of the Bihar Police Manual authorizes the Investing Officer to proceed to the spot himself or to depute any of his subordinate. The recording of the fardbeyan by SI Rajendra Tiwary in the presence of PW 8 cannot be faulted. The latter in his deposition has proved the fardbeyan as written in his presence and identified the writer and his signature. Likewise, SI Rajendra Tiwary is also stated to have prepared the Inquest Report on directions of PW 8 and who also signed the same and duly proved it. The first Seizure List of blood 14 Post Mortem Examination Report of Ravindra is (1) one incised wound 1” X ½” X ½” over left chest 1.1/2” left to the left nipple. (2) One penetrating injury 1.1/2” X 1/3” X cavity deep over left back of chest on mid-scapular region. Scapula and sixth rib were found fractured on back. (3) One ligature mark 18” X ½” X 1” around the neck situated below the thyroid cartilage and continuous up to back, lung was found ruptured due to injury. Injuries (1) & (2) were attributed to a sharp pointed weapon and injury no. (3) to a jute ligature. Death was caused by asphyxia due to strangulation. The Post Mortem Examination Report of Sunny indicated (1) one incised wound 6.1/2” X 1” X bone deep over front of neck from left to right, trachea, oesophagus and fourth cervical vertebra cut through and through. The injuries were attributed to a sharp cutting weapon. The Post Mortem Examination Report of Arvind pointed out (1) one perforating injury cutting right upper eye-lid 1” X ½” X cavity deep. Right eye ball was perforated, (2) one incised would 6” X 1.1/2” bone deep over front of neck from left to right trailing right side above thyroid, trachea, esophagus and fifth cervical vertebra fracture. The nature of weapon used was suspected to be sharp and pointed. The appellant could not have committed these attacks single handedly. Apparently he tied up Ravindra and Sunny with the help of Arvind and did away with them. Either the son or the father was therefore exposed to the