DEATH REFERENC no.5 OF 2007 With Cr.Appeal no. 933 of 2007 With Cr.Appeal no. 1034 of 2007 ========= In Death Reference no. 5 of 2007 State of Bihar --------------------- Appellant Versus Ashok Yadav and anr.------------- --Respondents With In Criminal Appeal no. 933 of 2007 Ashok Yadav ------------------- - Appellant Versus State of Bihar ------------------ Respondent With In Criminal Appeal no. 1034 of 2007 Lal Babadur Ram @ Bahadur Ram --------Appellant Versus State of Bihar ------------- Respondent ========== For the appellants: Mr. Manan Kumar Mishra, (in all appeals) Sr.Advocate With Mr. Awinash Kr.Pandey For the Reference & State:Mr. Ashwani Kumar Sinha, (in all Appeals) A.P.P. ===== Reference made by Shri Jagannath Rai, Additional Sessions Judge, F.T.C.V, Kaimur at Bhabua vide letter no.15 dated 13.06.2007 and appeals against the judgment and order dated 5.6.2007 passed in Sessions Trial no.179/05/117/05 arising out of Kudra P.S.case no. 137/04. 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., The death reference and Criminal Appeals arise out of the same judgment and order dated 5th June, 2007 passed by learned Additional sessions Judge, F.T.C.V, Kaimur at Bhabua in Sessions Trial no. 179/05/117/05 whereby and whereunder both the 2 appellants have been convicted under section 364A of the Indian Penal Code (in short as `IPC’) and capital punishment has been awarded to them. 2. The prosecution case, in short, is that informant Yogendra Singh lodged fardbeyan on 23.11.2004 at 15.00 hours alleging therein that his nephew Amar Kumar Singh and one Ravi Kant Choubey were missing since last night from his chamber (the place where machine was installed for irrigation work) but their daily use articles such as slippers, sweaters and mufflers were lying at the machine itself. He thus suspected that both were kidnapped by some unknown miscreants. On the basis of fardbeyan, the police registered Kudra P.S. case no. 137/04 under section 365 IPC against unknown persons. Later on sections 364A and 216/34 IPC were added. The police took up the investigation and after concluding the same submitted charge sheet against (i) Ashok Yadav son of Musafir Yadav (ii) Musafir Yadav son of late Ganpat Yadav (iii) Gabbar Mian son of Alam Mian, all resident of village Ratwar, P.S. Bhabua District Kaimur, (iv) Bahadur Ram son of Sheo Nath of village Sondiha P.S. Bhabua District Kaimur and (v) Jagdish Ram son of Barhu Ram of village Natya, P.S. Kupra, District Kaimur. 3 3. After cognizance the case was committed to the court of Session for trial. During trial Jagdish Ram, Gabbar Mian and Musafir Ram absconded and therefore, their trial was separated. The two appellants faced the trial and were convicted and sentenced as mentioned above. 4. The defence of the appellants is denial simpliciter and no defence witness has been examined. 5. Thus the sole question now arises for consideration is whether the prosecution has been able to establish its case against the accused appellants beyond all reasonable doubt. 6. Altogether eight witnesses have been examined on behalf of the prosecution and out of them P.W.2 Munna Rai is a formal witness who simply proved the formal FIR exhibit-2. P.Ws 3 and 4 are two victims of this case. P.Ws 6,7 and 8 are three police officers who participated either in the investigation or recovery of the two victims. 7. P.W.1, Yogendra Singh, the informant, stated that the occurrence took place in the night of 22.11.2004. His nephew Amar Kumar Singh (P.W.4) and Ravi Kant Choubey (P.W.3) had gone to chamber for doing irrigation work but when they did not 4 return in the morning, he went to the chamber and found that their slippers and chadar had been thrown in the chaur. The cot was found thrown in the field. He thus suspected that they have been kidnapped. He gave information to the police about the incident in writing which is exhibit-1. Thereafter he received telephonic call to pay ransom of rupees ten lacs. He informed about the telephonic call to the police and gave his telephone number. According to this witness, the police proceeded on the basis of information furnished by him and conducted raid at the house of Musafir Yadav and Ashok Yadav (appellant) and recovered both the kidnapped persons from their house. He learnt that the two other criminals were also apprehended. He further learnt that the police recovered gun and country made pistol from the place where the raid was conducted. He, however, could not identify the accused persons in court room. 8. P.W.3 Ravi Kant Choubey is one of the victims of this case. He stated that on 22.11.2004 he along with Amar Kumar Singh (P.W.4) had gone to the chamber of P.W.1 Yogendra Singh for irrigation work. At about 10.00 to 11.00 PM some seven-eight persons arrived at the chamber, armed with gun and 5 rifle. They blind folded their eyes and forced them to move on foot. They kept them in a village. He further stated that P.W.8 Pawan Kumar Singh, Officer Incharge of Kudra police station on 5.12.2004 at about 1.00 to 1.30 AM conducted raid and arrested the kidnappers. He asked their names and untied the band of their eyes. After interrogation, this witness came to know that they had been kept in the house of chaukidar Musafir Yadav. He identified Gabbar Mian, appellants Ashok Yadav and Bahadur Ram. In cross examination this witness stated that he came to know from the police that Musafir Yadav was the owner of the house from which they were recovered. He stated that he did not recognize any person at the chamber. 9. P.W.4 Amar Kumar Singh is the other kidnapped person. He supported the incident and stated that he along with P.W.3 were present at the chamber for irrigation work. During night hours seven-eight criminals came, armed with gun and rifle. They caught both of them. They took them to a little distance and blind folded their eyes. They made them to walk on foot throughout the night. He cannot state about the place where they were taken. After 12 to 13 days both of them were recovered by 6 the police from the house of Musafir Yadav and his son Ashok Yadav. According to this witness, Bahadur Ram, Gabbar Mian and Ashok Yadav were guarding the room. Country made pistols, gun and some cartridges were recovered from the place. He stated that they were kidnapped for ransom. The accused were demanding money. He identified both the appellants in court. In cross examination this witness has stated that the kidnappers used to remove the bands from their eyes only at the time of taking the food. 10. P.W.5 Rohit Kumar Singh is a student. He stated that he had given his mobile no. 9431447449 to appellant Ashok Yadav who was a watch man in the bank. Ashok Yadav was known to him as they were school friends. This witness had gone to the bank to get K.C.C.Account opened. As the Account was not being opened he became disturbed. He asked the appellant Ashok Yadav to get the K.C.C.Account opened. Ashok Yadav requested him to give his mobile as his wife was ailing. He gave his mobile in anticipation of his work being done by him. He took his mobile from Ashok Yadav on the next day in the noon. He learnt about the occurrence when the police asked him about his mobile and he was surprised to know that ransom call had been made 7 from his mobile. As per his disclosure the police conducted raid at the house of Ashok Yadav. He identified Ashok Yadav in court room. 11. P.W.6 Pankaj Kumar Das on 5.12.2004 was posted as Officer Incharge of Bhabua police station. He was asked by P.W.8 Pawan kumar Singh, Officer Incharge of Kudra police station to reach village Bare. According to this witness, P.W.8 also arrived there. He interrogated P.W.5 Rohit Kumar Singh and told him that the mobile through which the ransom was demanded 4-5 days ago, belonged to him. Rohit replied that on being demanded, he had given his mobile to Ashok Yadav of village Ratwar who had studied with him in the school. This witness further stated that after getting above information from Rohit Kumar Singh they went immediately to village Ratwar at the house of Ashok Yadav and started interrogating him in respect of mobile. In course of interrogation the conduct of Ashok Yadav was found suspicious. Thereafter the witness searched the room situated in the north west corner of the courtyard which was chained from outside and a man was found standing outside the room. They recovered kidnapped persons named Amar Kumar Singh and Ravi Kant Choubey from the room and the kidnappers Gabbar Mian and 8 Bahadur Ram were arrested from the room. In course of search fire arms and cartridges in huge quantity were found. Seizure list in respect of fire arms and cartridges was prepared. He identified appellant Ashok Yadav and Gabbar Mian present in dock and claimed to identify the remaining accused persons. He has clearly stated that the house from where the kidnapped persons were recovered, belonged to Musafir Yadav and Ashok Yadav. In cross examination, this witness has admitted that the mobile was not produced before them by Rohit Kumar Singh (P.W.5). They also could not get the mobile from the possession of Ashok Yadav. 12. On 23.11.2004 P.W.8 Pawan Kumar Singh was posted as Officer Incharge of Kudra Police Station. He received written application of informant (P.W.1). The endorsement in respect of institution of the case is exhibit-1/A on the written application. After receiving information regarding ransom call made through mobile no. 9431447449 he along with Officer Incharge of Bhabua police station namely Pankaj Kumar Das (P.W.6) and Ramesh Singh (P.W.7) located through the caller I.D. of phone no. 247325 of village Natya and through the Telecommunication Department that the 9 said mobile number belonged to one Rohit Kumar Singh (P.W.5). On being interrogated P.W.5 informed that he had given his mobile to Ashok Yadav. On getting such information, this witness went to the house of Ashok Yadav for verification. Ashok Yadav was present in the house and he expressed his ignorance about the mobile. This witness found a person in suspicious condition at the house of Ashok Yadav. On being asked that person disclosed his name as Gabbar Mian. He found a room situated in the north west direction of the court yard locked from outside. He got the room unlocked by Ashok Yadav and both kidnapped persons were recovered from that room. Many weapons were found there and the appellant Bahadur Ram was found guarding the closed room. All the arms were seized. Seizure list was prepared in presence of independent witnesses. Both the appellants were arrested. Gabbar Mian, however, escaped taking advantage of the darkness. Both kidnapped persons were set free. He handed over the seized arms and cartridges together with the written application to the Officer Incharge of Bhabua police station for instituting a case on the basis of which Bhabua P.S. case no. 439/04 was registered. In cross examination this witness stated that he recorded the 10 statement of two kidnapped persons at the place of occurrence as well as at the police station. He has further stated that on the basis of call made on the phone of the informant’s side by the kidnappers he did not obtain any print out of the call from the Department of Telecommunication. 13. P.W.7 Ramesh Prasad Singh was posted as S.I. of Bhabua police station. He was also a member of raiding party. It appears that after examination in chief he was not produced by the prosecution for cross examination. 14. As mentioned above, the accused appellants in defence did not examine any witness. 15. It has been argued on behalf of the appellants that both the victims were not produced before any court. They were also not examined under section 164 Cr.P.C. They were simply handed over to their father/guardian. It has also been argued that the motive behind the occurrence has not been established and no ransom amount was paid. 16. After carefully examining the evidence on record, I find that P.Ws 3 and 4 in the night of 22.11.2004 had gone to the chamber of P.W.1 for doing irrigation work and when they did not return next day in the morning, P.W. 1 went in search of 11 them. He found that their muffler and sweater had been thrown in the Chaur. The cot was found thrown in the field. He thus suspected that they have been kidnapped by some unknown persons. He accordingly informed the police about the incident on 23.11.2004 at 3.00 PM. Thereafter demand for ransom was made on the phone of the informant. He informed the police about it. P.W.5 during interrogation by the police informed that he had given his mobile to appellant Ashok Yadav. Thereafter P.Ws 6 and 8 raided the house of Musafir Yadav and Ashok Yadav and recovered the two victims. Accused Gabbar Mian and Bahadur Ram were also apprehended from the house of Ashok Yadav. Bahadur Ram was found guarding the room from which the recovery was made. 17. Section 164 comes within chapter xii of Cr.P.C. It starts with the heading information to the police and their powers to investigate. Admittedly in the present case the two victims were recovered by the police during investigation. They were not recovered on the basis of search warrant issued by the court. The police has statutory right to carry on investigation. The mere fact that two kidnapped persons were not produced in court for recording their statement would not make their 12 confinement as legal and exonerate the two appellants from the charges. The acts of two appellants are sufficient to disclose their intention. There is convincing evidence on record to show that the abduction was made with a view to realise money and for that purposes demand for ransom call was made through the mobile of Rohit (P.W.5). 18. It has further been argued on behalf of the appellants that P.W.1 has not stated that as to on which phone number or mobile he received the call for payment of ransom. The police has not verified the fact that the informant had a telephone or mobile. It is true that there is no convincing evidence that the informant had a telephone connection in which there was facility of caller I.D. but there is sufficient evidence to show that ransom call was made through mobile no. 9431447449 of Rohit Yadav and on the basis of information furnished by Rohit the police raided the house of Musafir Yadav and Ashok Yadav and recovered the two victims. 19. The most important aspect of this case is that the two kidnapped persons were recovered from the house of Ashok Yadav whose father Musafir 13 Yadav is a village chaukidar. The other appellant was also arrested at the spot while found guarding the room from which the recovery was made. Kidnapping is a professional crime. It is a continuing offence. There is nothing to show that P.Ws 1,3,4,5,6 and 8 have any enmity with the appellants. Their evidence is quite consistent. They corroborate each other in material particulars and the manner in which this professional crime took place. Some minor contradictions and omissions are bound to occur in the evidence of any witness. The court below has rightly accepted the evidence of above six witnesses and I find no good ground to differ with the findings as recorded by the trial court with respect to present two appellants. 20. Now next question is what punishment should be imposed on the appellants. It has been contended on behalf of the appellants that in the facts and circumstances of the case, the case does not fall within the category of “rarest of rare case” and on consideration of all relevant circumstances the imposition of death sentence would not be an appropriate sentence. 21. I find substance in the argument of learned counsel. Life sentence is the rule and death 14 sentence is an exception. Considering the evidence on record, in my view, it would not be proper to impose sentence of death on the two appellants. Thus in the facts and circumstances of the case, the death sentence imposed upon the two appellants namely Ashok Yadav and Lal Bahadur Ram alias Bahadur Ram is modified to one of life imprisonment. 22. With the above modification and sentence, the two appeals are dismissed. The Death Reference is answered in negative. (Madhavendra Saran,J.) (Shiva Kirti Singh,J.) I agree. (Shiva Kirti Singh,J.) PATNA HIGH COURT Dated 3rd September, 2008 AI/NAFR