DEATH REFERENCE No. 10 OF 2008 ----- Reference made vide letter no. 58 dated 23.6.2008 by Shri Anil Kumar Srivastava, Additional Sessions Judge, Buxar in Sessions Trial No. 120 of 200/241of 2007. ----- THE STATE OF BIHAR …… Appellant Versus KRISHNA BIHARI SINGH @ KRISHNA SINGH & JAWAHAR KOIRY @ JAWAHAR SINGH @ NETAJI ... Respondents W I T H CRIMINAL APPEAL (DB) No. 648 OF 2008 -------- Against the judgment of conviction dated 11.6.2008 and order of sentence dated 18.6.2008 passed by Shri Anil Kumar Srivastava, Additional Sessions Judge, Buxar in Sessions Trial No. 120 of 200/241of 2007 ------ BIRBAL CHOUDHARY @ MUKHIYA JEE………………… Appellant Versus THE STATE OF BIHAR …………………………… Respondent W I T H CRIMINAL APPEAL (DB) No.716 OF 2008 -------- KRISHNA BIHARI SINGH @ KRISHNA SINGH ................ Appellant Versus THE STATE OF BIHAR …………………………… Respondent W I T H CRIMINAL APPEAL (DB) No.761OF 2008 -------- JAWAHAR KOIRY @ JAWAHAR SINGH @ NETAJI ........ Appellant Versus THE STATE OF BIHAR ……………………… Respondent W I T H CRIMINAL APPEAL (DB) No. 773 OF 2008 -------- RAMASHARAYA KOIRY ............... Appellant Versus THE STATE OF BIHAR ………………Respondent W I T H 2 CRIMINAL APPEAL (DB) No.809 OF 2008 -------- SHYAM BIHARI PASWAN ............... Appellant Versus THE STATE OF BIHAR ………………Respondent W I T H CRIMINAL APPEAL (DB) No.851 OF 2008 -------- ANGAD KOIRY ............... Appellant Versus THE STATE OF BIHAR ……………Respondent W I T H CRIMINAL APPEAL (DB) No.908 OF 2008 -------- 1. RAM BRIKSHA KOIRY 2. HIRDYA KOIRY 3. MANGLA KOIRY 4. SAROJ KOIRY .............. Appellants Versus THE STATE OF BIHAR …………Respondent W I T H CRIMINAL APPEAL (DB) No. 910 OF 2008 -------- RAM DARASH KOIRY ............... Appellant Versus THE STATE OF BIHAR ……………Respondent W I T H CRIMINAL APPEAL (DB) No. 956 OF 2008 -------- HARBANSE RAM @ HARIVANSH RAM ............... Appellant Versus THE STATE OF BIHAR ……………Respondent ------ For the Appellants: Mr. Kanhaiya Prasad Singh, Mr. Krishna Prasad Singh and Mr. Shakeel Ahmad Khan, Sr. Advocates, Mrs. Kanak Verma, Sri Yogendra Kumar, Sri Sanjay Singh, Advocates. For the State: Mr. Lala Kailash Bihari, Sr. Advocate. For the Informant : Sri Akhileshwar Prasad Singh, Advocate ------- 3 P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA THE HON'BLE MR. JUSTICE DHARNIDHAR JHA -------- Navin Sinha,J. The appellants have been variously convicted under sections 364A, 34, 395 & 412 of the Indian Penal Code (hereinafter referred to as I. P. C.) as discussed in detail while considering their individual cases hereinafter. The appellants in Criminal Appeal Nos. 716 and 761 of 2008 have been sentenced to death giving rise to the Death Reference. The appellants in the remaining appeals have been sentenced to undergo imprisonment for life and rigorous imprisonment for ten years. All the appellants have been acquitted of the charge under Section 120 B I.P.C. 2. The written report of Arun Kumar Mishra, P.W. 5, was lodged with the Officer Incharge, Rajpur Police Station on 21.11.2006 at 10 P.M. marked as Exhibit-1, and formal F.I.R. registered at the same time. It was sent to the Magistrate on 22.11.2006. The informant stated that he was engaged in the business of cement, iron and dealership of Hindustan Lever along with his cousin Ajay Shankar Mishra, P.W. 17. The business was spread between Buxar and Ramgarh. P.W. 17 was responsible for collection of money dues from business associates in the Ramgarh area and travelled frequently for the purpose. On 20.11.2006, P.W. 17, and the informant's cousin Raju Mishra, P.W. 20, with the driver Manoj Singh, P.W. 18, left Buxar at about 10 A.M. on his white Gypsy bearing no. BR ID 2619, for Ramgarh and other places to collect money dues. P.W. 17 collected such dues from business associates at Nuao, Rajesh Jaiswal, P.W. 2, Sandeep Kumar Jaiswal, P.W. 3, Parwej Ansari, P.W. 4, and Santosh. At Ramgarh they collected dues from Sanjay Jaiswal, P.W. 1 and others. With the total collection of about Rupees four lacs they proceeded for Buxar at about 3.30 P.M. and 4 telephonically informed him that they did not propose to stop anywhere. A repeat conversation at 4.30 confirmed that they had reached Rampur. There was no contact thereafter and neither did they reach home. The next whole day was spent searching for them. Birendra Singh, P.W. 6, a businessman of Tiara informed him that the previous evening at about 6 P.M. the Maruti Gypsy was seen on the canal road from Rampur to Jamauli proceeding towards Jamauli driven by another. It was preceded by a black Hero Honda Motorcycle motorcycle, followed by a silver coloured Bolero with dark glasses and a Bajaj Discover Motorcycle behind it. P.W. 18 called from Sonbarsa next day at about 8.45 P.M. that P.W. 17 and P.W. 20 had been abducted by seven unknown persons on the point of arms at about 5 P.M. near Rampur village on the Hadhadva bridge after they were intercepted by motorcycles and he had been released near Sonbarsa. The informant was convinced that the abduction was for ransom. 3. Learned Senior Counsel, Sri Kanhaiya Prasad Singh on behalf of the appellant Birbal Choudhary in Criminal Appeal No. 648 of 2008 submitted that P.W. 18 did not identify him in the first Test Identification Parade (hereinafter referred to as T. I. P.) on 11.12.2006. Only in a repeat T.I.P. held on 14.12.2006 he was identified when again in the dock the witness did not identify. Even P.W. 17, who identified accused Shyam Bihari Paswan, Angad Koeri, Krishna Bihari Singh and Jawahar Koeri did not identify him. P.W. 20, another victim denied having named the appellant during investigation. The identification of the appellant was, therefore, not confirmed and he was entitled to acquittal. 4. Sri Yogendra Kumar, Advocate in Cr. Appeal No. 851 of 2008 for appellant Angad Koeri submitted that there is a single identification during T.I.P. by P.W. 17. He acknowledged that the defence of a scar injury over the left eye and non-compliance with requirement for T.I.P. thereunder were issues which had not been 5 raised before the Trial Court at any stage or in the cross-examination of P.W.9, the Judicial Magistrate, who held it. The next submission was that there is no specific role attributed to him except for sitting on a motorcycle at the time of abduction. The petitioner was a member of the mob and could not be assigned the same status of an accused, who took a more active participation in the entire episode. 5. Smt. Kanak Verma, Advocate, in Cr. Appeal No. 956 of 2008 on behalf of appellant Harivansh Ram submitted that co-accused Jawahar Choudhary named the son of the appellant, Radhey Shyam, as an accomplice and the Police referred to the appellant only in context of his status as father of Radhey Shyam and implicated him for the misdeeds of his son. He had been acquitted of the charge under Section 412 I.P.C. with regard to the Hero Honda Motorcycle recovered from his house as the same belonged to co- accused Krishna Bihari Singh. Charge was framed against the appellant under Section 368 of the Indian Penal Code but he has been convicted under Section 364 A of the same, when no such accusation was explained to him under section 313 Cr.P.C. This vitiates his entire trial. 6. Mr. Shakeel Ahmad Khan, Sr. Advocate in Cr. Appeal 761 of 2008 and 901 of 2008 on behalf of appellants Jawahar Koeri and Ram Briksha Koeri, Hirdya Koeri, Mangal Singh Saroj Singh submitted that P.W. 18 was the first reliable evidence for identification. He does not identify the appellants even in the dock, which rules out their participation in the occurrence. Jawahar Koeri was arrested in the market place but search and seizure of the ring of P.W. 17 was made only at the Police Station. False implication and concoction at the Police Station by implanting evidence cannot be ruled out. 7. It was next submitted that the identification of the single storeyed white coloured house at village Simri as belonging to the appellant Jawahar Koery , and where the three victims were allegedly kept on the first night is not free from doubt. P.W. 18 rendering the first 6 account of the occurrence, which shall take precedence over the later rendition by P.W. 17, only states that they were kept in a house at night. The house has not been shown to the Police and there is nothing to suggest that the victims were kept in the house of the appellant. Likewise, P.W. 20 does not state anything about the place of stay much less about the house of the appellant. The alleged identification of the appellant by P.W. 17 for the first time in the Court is too vague and to weak to be relied upon after over ten months of the occurrence when P.W. 18 & 20 were kept in confinement in the same house but say nothing on his identification. The alleged identification by P.W. 17 is nothing but the mere act of a site plan drawn up by the Police recording the statement of P.W. 17 without actually visiting the places of stay as allegedly disclosed. 8. On the issue of the test identification parade of the ring belonging to P.W. 17, marked as exhibit-5/2, it was submitted that the appellant was arrested on 10.7.2007 and the T.I.P. held only on 21.7.2007. The delay makes the possibility of the ring kept at the Police Station having been shown to P.W. 17 earlier, a distinct possibility. The evidence of P.W. 14, who conducted the T.I.P. makes it apparent that the ring was displayed, P.W. 17 came first to the Police Station and P.W. 14 followed thereafter. P.W. 18 & 20 were not associated with the T.I.P. All this makes the T.I.P. invalid in law. The belated identification of the appellant in the dock on 27.11.2007, when he was present the previous day also and much after his arrest on 10.7.2007 vitiates the identification in absence of having put the appellant on T.I.P. Reliance was placed on A.I.R. 1979 Supreme Court 1761, A.I.R. 1979 Supreme Court 1127, A.I.R. 1992 Supreme Court 2100, A.I.R. 1991 Supreme Court 1468. 9. On the recovery of the black Hero Honda motorcycle from the house of co-accused Harivansh Ram, on the disclosure made by the appellant , it was submitted that there is no material to suggest that it 7 was actually the same motorcycle used in the alleged occurrence. Reliance was placed on A.I.R. 1976 Supreme Court 483. It was submitted that the confession of the appellant as disclosed by P.W. 19 has to be read as a whole and, therefore, any disclosure by the appellant of the place of stay during the abduction being a composite confession of the occurrence was not admissible in evidence in its entirety. 10. The appellants Ram Briksha Koery, Hirdaya Koery, were arrested on 10.12.2006 as the were allegedly seeing running away from the house of accused Jawahar Koery, where the three victims were kept on the first night. Yet, P.W. 18, who was freed on the second day, does not identify them. Likewise, appellants Mangala Singh and Saroj Singh were witnesses to the execution of distress warrants of appellant Jawahar Koery on 5.12.2006. They were not taken into custody on that day. No evidence has transpired for their arrest five days later on 10.12.2006. There is no substantive evidence against them. There has been no T.I. P. and neither have they been identified in the dock. 11. Learned Senior Counsel, Sri Krishna Prasad Singh appearing for the appellant, Krishna Bihari Singh @ Krishna Singh in Cr. Appeal No. 716 of 2008 submitted that the involvement of the appellant in the occurrence was limited till he parted ways with Rs. 1.50 lacs of money after five hours of the abduction which at best may make out an offense under Section 395 of the Penal Code. The appellant had no concern with the subsequent confinement of the victims or other acts of the abductors. The appellant surrendered on 28.11.2006 and was remanded to Police custody for approximately 8 days on 29.11.2006 but never put on T.I.P. even though some other accused were put on T.I.P. thereafter. There is no explanation for the same, and, therefore, the belated identification in the dock on the second day of appearance, stands vitiated. Much emphasis was laid on the statement of P.W. 17 at paragraph 33 of his evidence to submit that the witness has stated that 8 the appellant was not present at the time of occurrence. It was obligatory on part of the Investigating Officer to explain why T.I.P. of the accused was not done when he was on Police remand for several days. Reliance was also placed on AIR 1979 SC 1127. 12. The Bolero was not seized from the house of the appellant but from the road in front where it was parked. There was no material to demonstrate that the Bolero belonged to the appellant. The ownership and recovery was thrust upon the appellant. The money packet recovered from the house of the appellant did not tally in content with the denominations in each packet as given by P.Ws. 1 to 4 in payment reflective of the fact that it was not the same money which was recovered. None of the two bundles recovered bore the writing „Ansari Nuao‟ .P.W. 22 states of signing of seizure list at the Police Station. The alleged recoveries were, therefore, fake. The Remo rifle was a licensed weapon of the appellant. There is no material to suggest that the other Bolero vehicles identified during T.I.P. by P.W. 18 also had red seat cover. The belated identification of the vehicle in Court by P.W. 17 was not in accordance with law. 13. Learned Senior counsel, Sri Rana Pratap Singh for the appellant Shyam Bihari Paswan in Criminal Appeal No. 809 of 2008 submitted that the entire genesis of the case for implication of the appellants was shrouded in a maze of false implication by creation of evidence. On 23.11..2006 there was no evidence before the Police. Yet alleged recovery of the Bolero vehicle, money and licensed rifle of appellant Krishna Bihari Singh was made from his residence as related to the offence. On that date P.W. 18 was the only competent witness and had made no disclosures to warrant such search and seizure. The money packet was allegedly identified by 'Ansari Nuao' written on it. P.W. 4, Parwez Ansari was not examined on this writing and neither has it been proved whose writing it was. The money allegedly seized and the rifle was not properly sealed and opened at the T.I.P. as acknowledged by 9 P.W. 15, who conducted the same. Tampering with the money as evidence, therefore, could not be ruled out. There was no evidence that the money seized was the very money snatched from the victims. Reliance was placed on AIR 1998 SC 1660. 14. The confessional statement of appellant Jawahar Koery in Criminal Appeal No. 761 of 2008, exhibit-9, made on 10.7.2007 was not the basis for the alleged recoveries and its admissibility was limited to the extent permissible under section 27 of the Evidence Act. Reliance was placed on (2008) 2 SCC (Cri) 264. 15. The appellant Shyam Bihari Paswan surrendered on 18.12.2006 and was remanded to Police custody ending on 26.12.2006. The T.I.P was held only on 5.2.2007. The appellant was photographed and moved from one village to another. He wrote to the Human Rights Commission, exhibit-F/2 and also stated so in evidence as D.W. 9. He repeated the same in his statement under 313 Cr.P.C. The appellant had a black mole on his face. The requirements for a T.I.P. by either hiding the same or giving similar mark on others was not followed. In this background, the identification of the appellant by his name, and not his face, by P.W. 17, vitiates the entire T.I.P. Relying on 1981 PLJR 462 (Vakil Singh v. State of Bihar), it was submitted that in a case of single identification, in an otherwise illegal T.I.P. there was no other evidence forthcoming against the appellant. P.W. 17, in Court, at paragraph 33 of his deposition stated that he recognises none of the accused present in Court, but subsequently identified four including the appellant. He has not been identified by the other two victims, P.Ws. 18 & 20. Reliance was placed on AIR 2002 SC 3325 (Dana Yadav versus State of Bihar) and AIR 2008 SC 2343 (Mahavir versus State of Delhi) for the proposition of delayed identification in the dock in the background of an invalid T.I.P. 16. Learned counsel Sri Kailash Bihari Verma appearing on behalf of the appellant Ramashraya Koery in Cr. Appeal No. 773 of 2008 10 submitted that allegedly the victims on the second day were kept in a house in village Dilhuva, P.S. Dinar. The appellant has been falsely implicated as he happened to be a resident of the same village. P.Ws. 17 & 20, the two victims have neither named the appellant nor identified him in the Court or his house. The appellant was never put on T.I. Parade. The only material against the appellant was the alleged confession before the Police of co-accused Krishna Bihari Singh dated 29.11.2006 leading to the Police raid long before the victims are stated to have been released on 11.1.2007. Co-accused Birbal Choudhary allegedly confessed before the Police that the victims had been kept at village Dilhuva without any identification of the appellant or his house. Accused Shyam Bihari Paswan had only stated before the Police that two of the accused had stayed at the house of the appellant, there was no reference to the victim being present. The appellant was arrested on aforesaid basis from his house on 20.12.2006. The appellant in his confession before the Police never stated that the victims stayed in his house. The only tangible material was the confession before the Police by accused Jawahar Koery that the victims were kept in the house of the appellant and Ram Darash Koery (Criminal Appeal 910 of 2008). This confession of accused Jawahar Koery, exhibit-9, was recorded in presence of P.W. 13, Abdul Hamid, the Circle Officer, but, the confession was not in compliance with Section 164 Cr.P.C. and, therefore, not admissible. Reliance was placed on A.I.R. 1954 SC 15 at paragraph 13 (Zwinglee Ariel versus State of M.P.). Relying upon A.I.R. 1964 SC 1184 (Hari Charan Kurmi versus State of Bihar, it was submitted that mere confession of a co-accused without substantive evidence could not be the basis for conviction. 17. Learned counsel Sri Sanjay Singh, for the appellant – Ram Darash Koery in Criminal Appeal 910 of 2008 made similar submissions as on behalf of appellant Ramashraya Koery. 11 18. Learned Counsel on behalf of the appellants sentenced to death submitted death sentence could be imposed if death ensued during abduction or confinement both being at par. Life imprisonment is an alternative punishment. The present case on facts was a fit case for punishment of life imprisonment. No special features were attributed to the two appellants. They were only one of the many abductors. The conduct of the two appellants shows that they had no intention, willingness or depravity to cause death for obtaining ransom. They intended to release the victims on payment of ransom but released them without such payment. It was not even a case to enhance their imprisonment beyond a period of 14 years. Reliance was placed on A.I.R. 2003 S.C. 4427 in support of the proposition. Relying upon 2008(4) PLJR 122 (SC) (Swamy Shraddananda v. State of Karnataka), (2003) 8 SCC 461 (Nazir Khan versus State of Delhi) for the propositions that death sentence was to be awarded only in the rarest of rare cases, which was not the case presently. On behalf of those sentenced to life imprisonment, it was submitted that life imprisonment as understood for a term of 14 years was sufficient punishment. The facts and circumstances of the case did not warrant the imposition of any enhanced punishment beyond 14 years, judicially interpreted as either 20 years or for the entire life. In fact, given their individual roles some of them should have been awarded a lesser punishment of ten years only under section 364 of the Penal Code. 19. Learned Senior counsel, Sri Lala Kailash Bihari Prasad appearing on behalf of the State submitted that the present was a case of planned premeditated abduction when the appellants lay in wait for the victims. 12 Individual overt acts were, therefore, not relevant and the conviction was sustainable under the separate offences read with Section 34 of the Penal Code. P.W. 6, being declared hostile is inconsequential. The witness has identified the Gypsy driven by P.W.17. The abduction took place at 4 P.M. The witness at 4.30 P.M. saw a motorcycle, followed by the Gypsy driven by another, being followed by a Bolero in turn followed by another motorcycle. The witness has confirmed the sequence of events regarding the abduction corroborated by the victim P.W. 17 including the manner and direction of movement narrated by P.W. 17 in paragraph 9 of his deposition. The witness was also a local businessman and, therefore, naturally in the interest of his own safety declined to corroborate his statements before the Police of identification by evasive answers,and not denials. The identity of the vehicle of the abductors, a Bolero is not denied. 20. The appellant Krishna Bihari Singh was unable to explain the recovery of Rs. 1.50 lacs from his house and contradicted himself in his statement under 313 Cr.P.C. by first stating that it was money withdrawn on his wife‟s credit card and subsequently said that it was income from his Chimni business. This corroborates the allegations of his involvement and that the recovered money belonged to the persons abducted. P.W. 17 was kept in captivity for 52 days. Reliance was placed on (2000) 1 SCC 358 (paragraph 20 & 21) (Raman Bhai Narain Bhai Patel and others versus State of Gujarat) for the proposition that the identification of the accused “was imprinted in the mind” and absence of T.I.P. was not relevant in support of the identification made in the dock of some of the accused. Reliance was also placed on 2000(2) SCC 254 (paragraph 21) ( S.N. Dube versus N.B. Bhoir & ors. ) 21. The recovery and identification in T.I.P. of the money, along with the news paper packet in which it was kept with “Nuao Ansari written on it as also the identification of the Bolero in which the victims were taken after abduction were all corroborative evidence linked to the 13 crime. P.W. 17 was a thoroughly reliable witness as in his deposition he completed relived the evidence in lucid detail from the stage of abduction to the date of release. Reliance was placed on 2009(1) PLJR 70 to justify the conviction and sentence under Section 364 A. 22. Sri Akhileshwar Prasad Singh, learned counsel for the informant assisting the arguments of the prosecution submitted that from a conjoint reading of the evidence of the first and second Investigating Officers, P.W. 8 & 19 read with that of the victims P.W. 17 and 18 reveals that the victims during abduction were kept in the house of appellant Jawahar Koery @ Netaji at village Simri, shifted to village Bhanpur and then to Ganjbharsara where they were kept in the house of appellant Birbal Chaudhary @ Mukhiya Ji. They were then moved to village Dilhuva, Bhabhni and Baradih. P.W. 8 had confirmed from the mobile conversations of the accused as reported by Bharat Sanchar Nigam Limited (hereinafter referred to as BSNL) that all these villages fell under the location of one mobile tower identified as Kochas A. The place of abduction, Hadhadwa Bridge near Nuaon also fell within the same. 23. Accused Birbal Chaudhary had clearly been identified by P.W. 17. On 27.11.2007, P.W. 17 clearly