Death Reference No. 06 of 2009 WITH CR. APPEAL (DB) No. 989 of 2009 WITH CR. APPEAL (DB) No.158 of 2010 Against the judgment and order of conviction and sentence dated 17.09.2009 / 30.10.2009 passed by Sri Upendra Bhushan Mishra, Learned Additional District & Sessions Judge, Fast Tract Court No. 02, Hazipur, Vaishali in Session‟s Trial No. 195 of 2006/571 of 2006. **** Death Reference No. 06 of 2009 The State of Bihar ……. Appellant. Versus 1. Deepak Rai @ Bipat Rai 2. Jagat Rai 3. Bachcha Babu Rai. …. Respondent-Condemned Prisoners. **** CR. APPEAL (DB) No. 989 of 2009 Deepak Rai @ Bipat Rai, Son of Bechan Rai, Resident of Village – Rampur Shyamchand, Police Station – Raghopur, District – Vaishali. ……. (Appellant) CR. APP (DB) No.158 oF 2010 1. Jagat Rai, Son of Late Rameshwar Rai, Resident of Village – Rampur Shyam Chand, P.S. – Raghopur, District Vaishali. 2. Bachcha Babu Rai, S/O. Late Ramishwar Rai, Resident of Village – Rampur Shyam Chand, P.S. – Raghopur, District – Vaishali. ……………… (Appellants) Versus The State Of Bihar …………… (Respondent) (in all the Criminal Appeals) 2 P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Death Reference No. 06 of 2009 along with Cr. App. (DB) No. 989 of 2009 preferred by the appellant Deepak Rai @ Bipat Rai and Cr. App. (DB) No. 158 of 2010 preferred by the appellants Jagat Rai and Bachcha Babu Rai are being heard together and disposed of by the common judgment as both the appeals arises out of the common order and judgment passed by Sri Upendra Bhushan Mishra, Additional District and Sessions Judge-cum- F.T.C. No. 2, Vaishali at Hazipur in Sessions Trial No. 195 of 2006 / 571 of 2006 by which all the three appellants convicted for offence under Sections 120B, 148, 302/149, 307/149, 326, 429, 436 and 452 of the Indian Penal Code and have been sentenced to death and as such the Additional District and Sessions Judge has referred the proceeding of the Sessions Trial No. 195 of 2006 / 571 of 2006 for confirmation of death sentence before this Hon‟ble Court. 3 2. It is pertinent to mention that both the Sessions Trial No. 195 of 2006 and Sessions Trial No. 571 of 2006 arising out of Raghopur P.S. Case No. 01 of 2006 under the Vaishali District were heard together. In Sessions Trial No. 195 of 2006 accused Jagat Rai and accused Deepak Rai @ Bipat Rai were tried together. In Sessions Trial No. 571 of 2006 Bachha Babu Rai, Maula Devi, Krishnadeo Rai @ Kishundeo Rai and Shivdhari Rai were tried together. In both the cases two sets of witnesses were examined for each set of Sessions Trial. However, after the closure of the evidence of prosecution in Sessions Trial No. 195 of 2006 and after the recording of the statement of the accused after close of the evidence of the prosecution in Sessions Trial No. 571 of 2006, the two Sessions Trial No. 195 of 2006 and 571 of 2006 were consolidated together by order dated 12.01.2008 at the request of the prosecution which was not opposed by the accused persons and hence two Session‟s Trial case 195/2006 and 571/2006 with two sets of prosecution witnesses consolidated together and after the consolidation the statement of the accused persons of Sessions Trial No. 195 of 2006 recorded under 4 Section 313 of the Cr.P.C and thereafter the evidence of defence started and several defence witnesses were examined on behalf of different sets of accused persons. 3. The prosecution case as alleged in the fardbeyan by the informant Vijendra Mahto P.W. 1 in Sessions Trial No. 571 of 2006 and P.W. 7 Nanhki Devi in Sessions Trial No. 195 of 2006 is that he was sleeping in the Varanda and his wife along with children was sleeping in the room. In the night at about 1:00 P.M, he get up on the sound of foot steps of several people and then he identified accused Jagat Rai, Bipat Rai, Ram Babu Ram, Binay Ram, Dandu Ram, Shankar Ram, Dev Nath Ram, Nathu Ram, Chhabila Ram, Baccha Babu Ram, Jaybabu Ram, Ranjay Ram in the light of bulb as well as from their voice who had come along with 10 – 11 unknown persons. All the accused persons were armed with lethal weapons. On seeing them while he (informant) wanted to flee away then Jagat Rai and Bipat Rai catch hold of him and threw him on the ground and 3 – 4 persons got over his body and put gunny bag in his mouth by which he was unable to make a cry or shout and thereafter Jagat Rai 5 commended to surround and set on fire on sprinkling kerosene after the house of the informant was locked from out side by Ram Babu Ram in which the wife and children were sleeping. Thereafter Binay Ram, Dandu Ram and Shankar Ram got over the house sprinkling kerosene set on fire. Further case is that Nathu Ram and Chhabila Ram sprinkled kerosene on the body of the informant and kept him pressed their left chest and thereafter Jaget Ram set on fire at his mouth and when the house started burning in flames then accused person flee away and the informant also ran away to save him. 4. Further case is that Bipat Ram fired at him but it could not hit the informant and informant fled away making Halla. On his Halla his brother Vinod Mahto, Bideshwar Mahto and other family members got up fire but in the mean time the wife of the informant and his daughters Nilam Kumari and Punam Kumari and sons Suraj Kumar, Anil Kumar and Rajesh Kumar died by burn in the room. Even the buffalo and calf also got injury by fire and the entire property in the house burnt to ashes. The motive of the occurrence as alleged is that about three months prior to the occurrence the buffalo 6 of the informant was stolen away by Jagat Ram and his family and for which a case was lodged and Jagat Ram was pressurizing informant to withdraw the case since last fifteen days but he was not able to withdraw as the case was in the court. 5. The fardbeyan was recorded at 7:30 hours on 01.01.2006 by S.I. Anjani Kumar, Officer-In-Charge, Rustampur at Primary Health Centre, Raghopur and the fardbeyan itself mentions that the fardbeyan was recorded at 7:30 A.M at Raghopur Primary Health Centre. On the basis of the fardbeyan, the First Information Report was drawn at 9:00 A.M on 01.01.2006 and the said fardbeyan was seen by the Magistrate on 02.01.2006 and the First Informant Report was drawn for offence under Sections 147, 148, 149, 452, 342, 324, 326, 427, 436, 307 and 302 of the Indian Penal Code and 27 of the Arms Act. After investigation the charge sheet was submitted and hence the first charge sheet was submitted against Jagat Rai, Bipat Rai, Ram Babu Ram, Binay Ram, Dandu Ram, Shankar Ram, Dev Nath Ram, Nathu Ram, Jaybabu Ram, Ranjay Ram, Maula Devi, Gautam Rai, Krishna Dev Rai, Shiv Dhari Rai. After submission of 7 the charge sheet the cognizance was taken for offence under Section 302 of the Indian Penal Code and other allied Sections of the Indian Penal Code for which the case was instituted on 13.04.2006 against 16 persons against whom charge sheet was submitted out of which five were in custody and 11 were absconder. Subsequently one accused Baccha Babu Rai was arrested and hence 10 remained absconder and so the case of 10 accused persons who have absconder were bifurcated and the case of 6 accused persons, namely, Krishna Dev Rai, Gautam Rai, Ranjay Ram, Maula Devi, Baccha Babu Rai and Shiv Dhari Rai were committed to the Court of Sessions by order dated 06.05.2006 and after commitment numbered as Sessions Trial No. 195 of 2006 and the charge was framed against the six accused persons for offence under Sections 302/149, 307/149, 148, 436, 326, 120B and 452 of the Indian Penal Code. 6. Subsequently in the bifurcated case of 10 accused persons accused Binay Rai and Jagat Rai were apprehended and one Deepak Rai @ Bipat Rai produced from New Delhi on a production warrant issued by the court and hence the accused Binay Rai, Jagat Rai and 8 Deepak Rai @ Bipat Rai were committed to the Court of Sessions by order dated 15.12.2006 and after commitment of the case a separate Sessions Trial No. 571 of 2006 was registered before Session‟s Judge on the supplementary record and after commitment the charge was framed against three accused Binay Rai, Jagat Rai and Deepak Rai @ Bipat Rai for offence under Sections 302/149, 148, 304/149, 436, 326, 429, 120B and 450 of the Indian Penal Code by order dated 20.01.2007. 7. However, the trial proceeded in both the cases separately and 17 witnesses were examined on behalf of the prosecution in Sessions Trial No. 195 of 2006. The 17 witnesses were examined in Sessions Trial No. 195 of 2006 are P.W. 1 Biond Kumar Mahto, P.W. 2 Kiran Mahto, P.W. 3 Bindeshwar Mahto, P.W. 4 Babloo Mahto, P.W. 5 Maha Devi, P.W. 6 Dulari Devi, P.W. 7 Bijendra Mahto, P.W. 8 Dr. Sunil Keshri, Primary Health Center, Raghopur, P.W. 9 Dr. Ashok Kumar, P.W. 10 Dr. Rajendra Kumar Rajesh, P.W. 11 Anjani Kumar, P.W. 12 Dr. Devendra Prasad Singh, Veterinary Doctor who treated the calf, P.W. 13 Manji Prasad Singh, ASI, 9 Raghopur who prepared the inquest report, P.W. 14 Jaga Devi, P.W. 15 Kamli Devi, P.W. 16 Nanhki Devi, P.W. 17 Bhuneshwar Rai. 8. The documentary evidence adduced on behalf of the prosecution in Sessions Trial No. 195 of 2006 is Exts. 1 Signature of Vinod Kumar Mahto on fardbeyan, 1/1 to Exts. 1/6 are the signature of Vinod Kumar Mahto on the inquest report of Babi Devi, Nilam Kumar, Punam Kumari, Suraj Kumar, Anil Kumar, Rajesh Kumar respectively. Exts. 2, 3, 4, 5, 6 and 7 are the post mortem report of Babi Devi, Nilam Kumari, Punam Kumari, Suraj Kumari, Anil Kumar and Rajesh Kumar a three years old male respectively, Ext. 1/7, 1/8, 1/9, 1/10, 1/11 and 1/12 signature of Doctor Ashok Kumar on the post mortem report of Anil Kumar, Rajesh Kumar, Suraj Kumar, Babi Devi, Nilam Kumari, Punam Kumari respectively, Ext. 8 is the injury report, Ext. 9 is the fardbeyan, Ext. 10 is the sketch map of place of occurrence, Ext. 11 is a petition (requisition) sent to Primary Health Centre, Raghopur for the treatment of Bijendra Mahto, Ext. 12 is the report of Dr. Devendra Prasad Singh regarding the examination of buffalow, Ext. 13 is a formal First Information 10 Report, Ext. 14, 14/1 to 14/5 are the carbon copy of the inquest report of Babi Devi, Nilam Kumai, Punam Kumari, Suraj Kumar, Anil Kumar and Rajesh Kumar respectively, the attested photo copy of the injury report of Bijendra Mahto has been marked “X” for identification. 9. Fourteen (14) witnesses were examined on behalf of the prosecution in Sessions Trial No. 571 of 2006 P.W. 1 Bijendra Mahto, Informant, P.W. 2 Kiran Mahto, P.W. 3 Binod Mahto, P.W. 4 Bindeshwar Mahto, P.W. 5 Babloo Mahto, P.W. 6 Maha Devi, P.W. 7 Nanhki Devi, P.W. 8 Jago Devi, P.W. 9 Kamli Devi, P.W. 10 Dulari Devi, P.W. 11 Dr. Sunil Keshri, P.W. 12 Dr. Rajendra Kumar „Rajesh‟, P.W. 13 Dr. Devendra Prasad Singh, P.W. 14 Anjani Kumar, I.O. 10. The documentary evidence proved by the prosecution in Sessions Trial No. 571 of 2006 is Ext. 1 is the photo copy (certified) of fardbeyan, Ext. 2 to 7 photo copy (certified) of the post mortem report of Babi Devi, Ext. 3 certified photo copy of post mortem report of Nilam Kumari, Ext. 4 certified photo copy of the post 11 mortem report of Punam Kumari, Ext. 5 is the certified photo copy of post mortem report of Suraj Kumar, photo copy (certified) of post mortem report of Anil Kumar and Rajesh Kumar respectively, Ext. 8 photo copy (certified) of injury report of injured Bijendra Mahto, Ext. 9 photo copy (certified) of injury report of buffalow, Ext. 10 to 10/5 photo copy (certified) of inquest report of Babi Devi, Nilam Kumari, Punam Kumari respectively, Ext. 11 photo copy (certified) of formal First Information Report. 11. However, after the evidence of the witnesses recorded separately in two Sessions Trial as mentioned above both the Session‟s Trial were consolidated as both arises out of the same fardbeyan and First Informant Report of Raghopur P.S. Case No. 01 of 2006 and hence consolidated together and the defence witnesses were examined after consolidation of the case i.e. Session‟s Trial and hence there is only one set of defence witnesses for both the cases. The defence witness examined on behalf of Bipat Rai is D.W. 1 Bambam Thakur, D.W. 2 Munsi Rai, D.W. 3 Gauri Bhagat, D.W. 4 Lala Rai, D.W. 5 Nawab Thakur, D.W. 6 Mulhai Rai, D.W. 7 Baskit 12 Rai, D.W. 8 Deoraj Rai. Five defence witnesses adduced on behalf of the accused Binay Rai are D.W. 1 Rabindra Rai, D.W. 2 Gowar Mahto, D.W. 3 Chandradeo Mahto, D.W. 4 Mukesh Kumar and D.W. 5 Sunil Kumar. 12. Three witnesses were examined on behalf of the accused Ranjay Rai who was D.W. 1 Brahmdeo Pandit, D.W. 2 Churawan Sharam, and D.W. 3 Ramwali Rai. 13. However, during the trial of S.T. 195/2006 the case of the accused Binay Kumar was bifurcated from the original case by order dated 08.11.2008 for an enquiry on the ground of his being a juvenile. Further by order dated 07.07.2009 the case of accused Ranjay Kumar was bifurcated in view of the order dated 24.02.2009 and 30.04.2009 passed in Cr. Revision No. 1468 of 2008 on ground of juvenile and hence the case proceeded with regard to the six accused out of eight accused facing the trial. After considering the oral and documentary evidence and considering the submission made by the parties the learned Sessions Judge acquitted the accused Maula Devi, Krishna Dev Rai and Shiv Dhari on the ground that they 13 were not named as accused in the fardbeyan or FIR and no reliable evidence and evidence against them contradictory convicted Deepak Rai @ Bipat Rai, Jagat Rai and Baccha Babu for offence under Sections 302/149 of the Indian Penal Code and other allied Sections of the Indian Penal Code for alleged setting on fire on the house of informant Bijendra Mahto with intention to causing the death of Babi Devi, Nilam Kumari, Punam Kumari, Suraj Kumar, Anil Kumar and Rajesh Kumar causing death of them hence being a member of unlawful assembly and have been sentenced to death and the proceeding referred for confirmation of the death sentence. 14. Defence of the accused persons that the witnesses have not seen the occurrence and the fardbeyan is not the fardbeyan on the statement of Bijendra and the fire set in the house by the electricity and the accused persons has not done the occurrence. 15. Learned counsel for the appellant Deepak Rai @ Bipat Rai submits that there is no allegation of burning of match stick or setting on fire nor any specific allegation attributing weapon to this appellant and there is basic difference in prosecution case in 14 fardbeyan and evidence of witness during trial and the claim of identification of accused in the fardbeyan is by electric bulb however, in the evidence the claim of identification is by the flame of the fire. It has further been contended that there is enmity with the appellant Deepak Rai @ Bipat Rai and further the independent persons or the neighbourers have not been examined as a witness and though the motive alleged is against Jagat Rai but there is no motive against Bipat and others. It is alleged that the accused persons fled away at a considerable distance and further some of the witness though came to support the prosecution case as eye witness but were not at the place of occurrence and further the fardbeyan is doubtful and the means of identification is not wholly established and however, the informant was unconscious not able to give statement and was not in a position to depose or give statement and different witnesses have given different version and the fardbeyan is alleged to be recorded at 7:30 AM whereas it has come in evidence that the informant become unconscious and was unable to give statement and hence the First Information Report is anti time and anti dated and 15 hence it gives reasonable doubts that the name of the appellants have falsely been implicated. 16. The prosecution case as alleged in the fardbeyan that the informant was sleeping in Varandha, his wife and children were sleeping in room and then the informant got up on hearing the foot steps on several persons and identified Jagat Ram, Bipat Ram and Baccha Babu and others named and tried to flee then Jagat Ram and Bipat Ram catch hold of him and throw him on the ground and 3-4 unknown persons got over his body put gunny bag in his mouth and Jagat Ram commanded to sprinkle kerosene and set on fire. Ram Babu locked the room in which the children and wife were sleeping from out side and thereafter Binay Ram, Dandu Ram and Shankar Ram got over the house and sprinkle kerosene. Nathu and Chabila sprinkle kerosene on the body of the informant and Jagat Ram lit the matches and set on fire at his mouth when the flame of the fire came out then the accused persons flee away and then the informant anyhow ran to save his life on which Bipat Ram fired but Bipat Ram fired from his gun but on the cry his brother Vinod Mahto and 16 Bindeshwar Mahto and other family members came and in the mean time his wife, daughters, sons and his wife Babi Devi, daughters Neelam Kumari and Punam Kumari, his sons Suraj Kumar, Anil Kumar and Rajesh Kumar died and the buffalo and his calf also injured by fire and the entire property burnt to ashes. It has further been stated that about three months prior his buffalo was theft away by Jagat Ram and his family for which a case was instituted and since last fifteen days the brother was being made to withdraw the case but since the case was pending in court he was unable to answer. 17. P.W. 7 is the informant. He has supported the prosecution case in his evidence that he was sleeping in Varandaha, the wife and children were sleeping in the northern room, the buffalo were tied in southern room, he got up on the sound of foot steps of several persons. He saw that Bipat and Jagat throw him. Four persons caught hold of him. Jagat Rai put gunny bag on his mouth and set on fire by match stick. Ram Babu lock the door of the house. Binay Ram, Chabila and Nathu Ram got over the house and sprinkle kerosene 17 and set on fire. The house started burning and he started flee toward northern. His brother Bindeshwar, Vinod came and others set off fire of his body his wife Babi Devi, daughter Neelam Kumari and Punam Kumari and sons Suraj Kumar, Anil Kumar and Rajesh Kumar all burnt along with the articles. He has further stated that he had lodged a case for theft of buffalo in the said case. Ajay and Vazir were arrested and thereafter accused persons used to threaten to get release the Ajay (the son of Jagat) otherwise they will burn the entire members. He has further stated that he was taken to Raghopur hospital. The statement was read over and he put his thumb impression. Thereafter in his cross-examination, he has stated that his statement was recorded by Daroga at Raghopur and he got unconscious after giving statement. He has further stated that he cannot say that his statement was recorded at Raghopur by Raghopur and Rustampur. He has further stated that even prior to the occurrence he used to serve Daroga, Raghopur Police Station and even used to say that the accused persons will kill him and his family, however, there is nothing in his cross examination. 18 18. P.W. 10, is the Doctor who treated the victim Vijendra Mahto at 1.45 A.M. and found the following injury:- (i) Burn injury on the face. (ii) Burn injury on both sides of wrists. (iii) Burn injury on both legs. (iv) Total burn injury is about twenty percent. (vi) Age of injury with two hours and has stated that the patient referred to PMCH for opinion and needful. 19. However, in his evidence in cross examination he has stated that he has not given the dimension of the burn injury and he has proved the injury report as Ext. 8 and has stated in his cross- examination that he wrote in his injury report that he examined Vijender Mahto and has stated that he has not submitted any supplementary report about the mentioning of the wrong name of the injured in his injury report. He has further stated that while he examined the injured, Vijendra Mahto Police was present in the hospital and while he was examining the injured the injured was in sense to make statement. He has further stated that during his presence 19 the Police did not take any statement of the injured. He has further stated that he examined Vijendra Mahto but due to his mistake wrong name mentioned in the injury report and hence from the evidence of the Doctor corroborated the injury by fire received by the informant and corroborated the time of injury on face and other within two hour and the injured examined as 1.45 A.M whereas the time of occurrence as per prosecution case is stated to have been between 12.30 to 1.00 A.M is well within 2 hours as opined by doctor which corresponds and corroborated to the time of occurrence. 20. P.W. 1 Vinod Kumar Mahto has stated that he got up at 12:30 P.M on 1st January, 2006. His house is adjoining the house of Bijendra Mahto and when he saw the flame of the fire and got up and when he came out then he saw brother Bijendra Mahto is burning in fire and so he put blanket on his body to set off the fire on body of Bijendra Mahto. He has further stated that the house of the Bijendra Mahto is burning and inside the house the cry of the children and wife were coming out. They tried to set off the fire of the house then Jagat Rai fired from rifle son Bipat, Rambabu, Nathu, Deonath, Shankar, 20 Binay fleeing towards west. He has stated that Bhabhi Bebi Devi and the niece Neelam Kumari and Punam Kumari and the nephew Anil Kumar, Suraj Kumar and Rajesh Kumar burn to death. The buffalo also died out of the burnt supported the prosecution case about three months prior to the occurrence. He has further stated that the buffalo of Bijender was theft away for which the case was instituted in which Vazir and Ajay son of Jagat was arrested and Jagat and Bipat and others were threatening his borther Bijender to withdraw the case otherwise they will burnt him alive. He has further stated that his brother treated as Primary Health Centre, Raghopur where the statement of his brother was recorded by the Officer-In-Charge, Rustampur P.S. He has also proved his signature on the inquest report of the six deceased persons, namely, Babi Devi, Neelam Kumari, Punam Kumari, Anil Kumar, Suraj Kumar and Rajesh Kumar which has been marked as Exts. 1/1 to 1/6 in cross examination this witness stated