DEATH REFERENCE No.8 OF 2006 WITH CR. APP. (DB) NO.1177 OF 2006 WITH CR. APP. (DB) NO.1185 OF 2006 ........ Reference made by Sri Diwakar Mishra, Presiding Judge, Fast Track Court No.V, Samastipur, through Letter No.10072 dated 6.11.2006 and appeals against the Judgment of conviction dated 20.10.2006 and Order of sentence dated 31.10.2006 passed by Sri Diwakar Mishra, Presiding Judge, Fast Track Court No.V, Samastipur in Sessions Trial No.270 of 2005/540 of 2006. ……… DEATH REFERENCE No.8 OF 2006 THE STATE OF BIHAR--------------------------------------------------------APPELLANT. Versus RAGHUBAR RAI, SON OF LATE SUNDER ROY, RESIDENT OF VILLAGE- JANARDANPUR, P.S. KALYANPUR, DISTRICT-SAMASTIPUR. --------------------------------------------------------------------------------------RESPONDENT. WITH CR. APP (DB) No.1177 OF 2006 BIRAL ROY, SON OF TRIVENI ROY ALIAS PRIKSHAN ROY, RESIDENT OF VILLAGE-KOTHEA, P.S.CHACKMEHSI, DISTRICT-SAMASTIPUR. -----------------------------------------------------------------------------------------APPELLANT. Versus THE STATE OF BIHAR------------------------------------------------------RESPONDENT. WITH CR. APP (DB) No.1185 OF 2006 RAGHUBAR RAI, SON OF LATE SUNDER ROY, RESIDENT OF VILLAGE- JANARDANPUR, P.S. KALYANPUR, DISTRICT-SAMASTIPUR. -----------------------------------------------------------------------------------------APPELLANT. Versus THE STATE OF BIHAR------------------------------------------------------RESPONDENT. --------- For the Appellants : M/s. Kanhaiya Prasad Singh, Senior Advocate and Khurshid Alam, Advocate (in both the appeals) and for the Respondent in D. Reference. For the informant : Mr. Basant Choudhary, Senior Advocate, in all three cases. 2 For the State : Mr. Ashwani Kumar Sinha, A.P.P.in all the three cases. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE ABHIJIT SINHA ……….. JUDGMENT. Abhijit Sinha,J: In the month of July, 2004 as the gurgling flood waters devastated areas under Kalyanpur P.S., Nand Kumar Thakur alias Ghuran Thakur, a Member of the Panchayat Samiti , though reported to be sick was taken away by boat at around 11 A.M. on 15th July, 2004 by Mukhia , Raghubar Roy, Vimlesh Kumar Gupta, Kailash Roy, Biral Roy, Kamod Paswan, Ashok Kumar Roy and Sikandar Roy and four other unknown persons on the pretext that the relief materials from the block could not be given to them in his absence because he was a Member of the Panchayat Samiti and the people under the panchayat were dying of starvation and thereafter he never returned home and no trace could be found. Accordingly, Nirmala Devi, wife of Nand Kumar Thakur alias Ghuran Thakur, submitted a written report before the Officer Incharge, Kalyanpur P.S. on 23.7.2004 on the basis whereof Kalyanpur P.S. Case No.90 of 2004 was registered against the seven persons aforesaid under Sections 364/120-B/34/302 I.P.C. 2. Briefly stated, the prosecution case as culled out from the written report of the informant is that at about 10 A.M. on 15.7.2004 while her husband, her dewar, Chandrakant Thakur, brothers-in-law, Binay Kumar Thakur and Bipin Kumar Thakur were sitting at the darwaza along with her, Vimlesh Kumar Gupta, Kailash Roy and boatman Biral Roy, came to the darwaza by boat and informed that Mukhia, Raghubar Roy, had called him to bring materials of flood relief and distribute the same. It is said that since her husband had fever, he refused to go but an hour later at about 11 A.M., Mukhia Raghubar Roy, himself accompanied by Vimlesh Kumar 3 Gupta, Kailash Roy, Biral Roy, Kamod Paswan, Ashok Kumar Roy, Sikandar Roy and four other unknown persons came over by boat to their darwaza and requested him that since he was a member of the panchayat samiti, the relief materials could not be released from the Block Office in his absence and the people would starve to death and when her husband expressed his inability on account of his illness to accompany them, Raghubar Roy said that he would get him examined by a doctor and even though the husband refused to accompany them, all the persons took him away against his will by boat to Kalyanpur block. It is said that when her husband did not return home till 7 P.M., she sent her dewar and both the brothers to the house of Raghubar Roy to know the whereabouts of her husband but it was learnt that Raghubar Roy had not returned till then. Other attempt was made at 10 P.M. when it was again found that Raghubar Roy had not returned. On the following day, her dewar and brothers again went to the house of Raghubar Roy to enquire about Nand Kumar Thakur and they were given to understand by Raghubar Roy that Nand Kumar Thakur had returned to his house in the night itself by another boat. Thereafter hectic search was made for Nand Kumar at the houses of the friends and relatives but no trace could be found. The putrefied and decomposed dead body was subsequently recovered. 3. The informant further stated that her husband used to go to cattle mart held on his own lands near Durga temple in village-Janardanpur where cows and buffaloes were sold on every Tuesday and Raghubar Roy was demanding this plot of land to be given to him on contract for realization of money but her husband had refused which caused annoyance to Raghubar Roy. On this premise the informant expressed her suspicion and apprehension that the accused persons by hatching a conspiracy had kidnapped her husband and killed him on the pretext of distributing flood relief materials and in order to conceal the dead body had thrown it into the flood waters. 4 4. The police started investigation and found the accused persons absconding. However, in course of investigation they received secret information about accused Vimlesh Kumar Gupta and Biral Roy and reached Jathmalpur Mahadeo Sthan Chour with witnesses. It is alleged that on seeing the police force both the accused took to their heels and fled away towards bridge but were apprehended by the police on chase. Admitting his guilt accused Vimilesh Kumar Gupta gave out that the dead body of Nand Kumar Thakur had been thrown into the river after committing his murder in between Dhruvagama village and the saw mill near to it. This fact was supported by the confessional statement of accused Biral Roy. Search for the dead body of Nand Kumar Thakur in the surging flood water yielded no fruitful result and the dead body could not be found. On the following morning search continued by boat and in course thereof when they reached near the bamboo clump in village Dhruvagama, on being pointed out by the two accused they detected the dead body wearing kurta paijama floating on the water near a shisam tree. The witnesses, Jagdish Dubey and Chandrakant Thakur, the brother of the deceased, identified the dead body after seeing the same. This recovery was made at about 7.30 A.M. on 25.7.2004. The confessional statement of the accused persons were recorded who gave out that all the accused persons had gone to Kalyanpur on the boat of Raghubar Roy where Nand Kumar Thakur was administered mild medicines and while coming back in the evening by the boat, Raghubar Roy strangulated him to death and threw the dead body into the flood waters with the help of other accused persons. The police prepared inquest report and sent the dead body to Samastipur for post-mortem examination where the doctor found the cause of death to be asphyxia and stated the time of death before about 10 days. 5. Having completed the investigation the Investigating Officer submitted chargesheet no.93 of 2004 against Vimlesh Kumar Gupta and Biral Roy. Thereafter chargesheet no.3 of 2005 was submitted against accused Raghubar Roy, showing the 5 investigation to be pending against accused Kamod Paswan, Kailash Roy, Ashok Kumar Roy and Sikandar Roy. 6. Eventually, by order dated 1.6.2005, the then Ist Additional Sessions Judge, framed charges under Sections 120-B/34, 364/34, 302/34 and 201/34 I.P.C. against accused Vimilesh Kumar Gupta, Biral Roy and Raghubar Roy to which they pleaded not guilty and claimed to be tried. It would not be out of place to mention here that soon after the framing of charge the case in respect of Vimlesh Kumar Gupta was dropped by order dated 28.7.2005 since he had expired in the meantime and the trial proceeded against the remaining two. 7. At the trial, the prosecution in support of its case examined as many as 10 witnesses of whom P.W.9 is Dr. Ashok Bardhan Sahai who has proved the post- mortem (Ext.3) and P.W.10, Brij Bihari Pandey, is the Investigating Officer and Nirmala Devi, the informant, is P.W.6, apart from bringing on record the documentary evidence. 8. The defence case is that they are innocent and have been falsely implicated in this case due to previous enmity over a dispute with Nand Kumar Thakur over the issue of cattle mart in the village and that Nand Kumar Thakur often became traceless for years together and it was possible that he might have gone missing and the recovered dead body was of another unknown person and not of Nand Kumar Thakur and taking advantage of the same due to the previous enmity and caste rivalry the accused persons had been dragged in into this case in a well planned manner after 8 days. The defence also produced documentary evidence as also oral evidence in its defence to show that the contract of the said cattle fair was in the name of the accused Raghubar Roy from before and that the witnesses produced by the prosecution in the court were interested witnesses having previous animosity. 9. At the conclusion of the trial both the accused, Raghubar Rai and Biral Roy, were adjudged to be guilty of and convicted for commission of offences under 6 Sections 364/34 , 120B/34, 302/34 and 201/34 I.P.C. Taking into consideration the presumptively heinous nature of the crime, dubious role played by him therein and the pendency of a conglomerate of criminal cases of various nature against him, convict Raghubar Rai was sentenced to the gallows for the offence under Section 302 I.P.C. He was further sentenced to undergo rigorous imprisonment for 10 years for the offence under Section 364 I.P.C. along with a fine of Rs.25, 000/- payable to the wife of the deceased and in default to undergo simple imprisonment for two years. For the offences under Sections 120 B / 34 and 201/34 I.P.C., he was sentenced to rigorous imprisonment for 7 years each. Co-convict Biral Roy on a finding of being a conspirator and close associate of the main accused, Raghubar Rai, was sentenced to life imprisonment for the offence under Section 302/34 I.P.C., rigorous imprisonment for 10 years for the offence under Section 364/34 I.P.C, rigorous imprisonment for 7 years for the offence under Section 201/34 I.P.C. and rigorous imprisonment for 5 years for the offence under Section 120B/34 I.P.C. with a direction for all sentences to run concurrently. F I N D I N G S 10. Admittedly, the factum of death of Nand Kumar Thakur alias Ghuran Thakur is neither in controversy nor in dispute. The primary question which calls for pointed consideration is whether the prosecution has been able to prove the charge against the accused herein beyond all reasonable doubts and if the answer is in the positive then whether the case of the appellant Raghubar Rai would fall within the category of “rarest of rare” cases so as to deserve capital punishment. 11. Admittedly again, there are no eye witnesses of the occurrence and the entire prosecution case is based upon circumstantial evidence. As observed in the case of Deepak Chandrakant Patil Vrs.State of Maharshtra reported in ( 2006) 10 SCC 151, in a case based on circumstantial evidence there may be no direct evidence to prove the manner of assault or the actual participation of an accused in the assault 7 on the deceased resulting in his death, but if the circumstantial evidence is conclusive in nature, a conviction on the basis of such circumstantial evidence may be recorded. Keeping this principal in mind we have to delve and deliberate as to whether the circumstances established on record are incriminating in nature and the chain of circumstances established by the prosecution is so complete as not to be consistent with any other hypothesis except the guilt of the accused. 12. As per the written report ( Ext.2) submitted by Nirmala Devi ( P.W.6) the wife of the deceased, the presence of her dewar Chandrakant Thakur ( P.W.2) , and brothers-in-law Binay Kumar Thakur ( P.W.1) and Bipin Kumar Thakur ( not examined) is indicated at her darwaja wherefrom Nand Kumar Thakur was allegedly taken away by the accused and their henchmen. This fact finds support from the evidence of P.Ws.1,2 and 6 . This fact is also supported by the evidence of Mahanth Ram Lakhan Das ( P.W.5) ,the father of the deceased, and P.W.2 who though not shown to be present at the darwaza of Nand Kumar Thakur claims to have seen the departure of Nand Kumar with the accused. P.Ws 1,2 and 6 have also supported the prosecution story of Nand Kumar Thakur being indisposed and refusing to go at the first instance when Vimlesh Kumar Gupta, Kailsh Roy and boatman Biral Roy had come to call him. P.W.3 ( Paltan Sahni) claims to have seen Nand Kumar Thakur in the company of the accused and their accomplices on a big boat going towards Kalyanpur. The fact of Nand Kumar leaving with the accused persons is not in dispute nor has any controversy thereto been raised by the defence. 13. What is worth noting is the fact that whereas P.W.1 deposed that when Nand Kumar refused to go on the second occasion , Raghubar Rai caught hold of his arm and forcibly got him seated on the boat, P.Ws 2 and 6 state of Raghubar Rai , merely catching hold of Nand Kumar’s hands but they do not give any suggestion of any force being applied on Nand Kumar to force him on to the boat. Even P.W.5 does not give any indication of Nand Kumar being held in captivity. 8 Curiously, in course of his cross-examination, P.W.1 admits that neither Nand Kumar nor any of the relatives present there at the relevant time, including himself and Nirmala Devi, made any attempt to set him free or raise any hulla. He also admitted that there had been no struggle or tussle. The behaviour of the relatives of Nand Kumar not to offer any resistance to his being taken away is a matter which pricks the conscience with an element of doubt and unreasonableness. From the above one may deduce that with Raghubar Rai’s assurances of getting Nand Kumar examined by a doctor and providing medicines for his ailment he only had extended a helping hand to Nand Kumar to enable him to get on to the boat. 14. P.W.1 also deposed that when Nand Kumar did not return by 7 P.M. he in the company of P.W.2 and Bipin Kumar Thakur went to the house of Raghubar Rai and found that he had not returned by then. He also speaks of going there a second time at 10 P.M but even then Raghubar was not available. Having spent the night in anxiety, they again visited Raghubar Rai the following morning when Raghubar informed them that Nand Kumar had already returned to his house by another boat in the evening. Search for him in the houses of the relatives yielded no positive result. P.W.2 has supported P.W.1 in the aspect. This led to the filing of the written report (Ext.2) after eight days. 15. P.W.1 in course of his testimony sought to give a criminal tinge to the otherwise innocuous occurrence by stating that the cause of occurrence was that Nand Kumar Thakur had a cattle mart in village Janardanpur and Raghubar Rai with avaricious eyes thereupon was pressurizing Nand Kumar to hand over the same to him on contract which had not been acceded to and as a result thereof Nand Kumar had been taken away by the accused persons and murdered. P.W. 2 in substantiating the fact of enmity in course of his deposition added that there used to be frequent squabbles between the two over the issue. P.Ws 2,5 and 6 have substantiated the fact of existence of differences and ill- feelings between Nand Kumar and Raghubar Rai. 9 Curiously, the Investigating Officer does not appear to have considered this as a matter of which required investigation and he is silent in this regard. 16. To establish an offence punishable under Section 364 I.P.C. it is required to be proved that the person charged with the offence had the intention at the time of the abduction that the person abducted would be murdered or would be so disposed of as to be put in danger of being murdered . The pre-requisite for the prosecution is to establish that he intended at the time of the abduction to place the abducted person in a position which would put him/her in danger of being murdered. One may, for this purpose, take into consideration the motive, previous relations of the parties and the circumstances showing clearly that the deceased was abducted with the object of being murdered. 17. From the evidence available it is apparent that the area was reeling under the devastating fury of the flood waters causing all round misery, grief and depression with hungry populace clamouring for food and solace. In such a situation it is but common expectation that people swayed by humanitarianism would eschew their animosity and differences would join hands in amity to ameliorate the human sufferings. From the evidence of P.Ws 1,2, 3,5 and 6 as discussed in the foregoing paragraphs , it does not appear that the deceased Nand Kumar Thakur was forcibly taken away from his darwaja with the pre-determined motive or intention of his being murdered or being disposed of as to be put in danger of being murdered. None of the witnesses have stated anything in this regard so as to come to the conclusion that Nand Kumar Thakur was kidnapped/ abducted from his darwaja. Had these winesses been aware of the alleged intention or motive of the accused persons of killing Nand Kumar Thakur, they would definitely have offered some sort of resistance, but the depositions of the witnesses are absolutely silent regarding resistance being offered to Nand Kumar Thakur being taken away by boat. Even the police was not informed of Nand Kumar Thakur being taken away for eight days. 10 18. Having given my anxious thought to this aspect of the matter I am of the confirmed opinion that it cannot be said with certainty that the accused persons were guilty of the offence under Section 364/34 I.P.C. and, accordingly, their conviction and sentence thereunder is set aside. 19. It appears from the evidence of Jagdish Dubey ( P.W.4 ) that after kidnapping of Nand Kumar Thakur, the Kalyanpur Police led by the Sub-Inspector of Police went to Jathmalpur Mahadeo Asthan with Chandrakant Thakur in the evening of 24.7.2004 where the accused persons Biral Roy and Vimlesh Kumar Gupta were reported to be hiding . He stated that on seeing the police vehicle the accused persons attempted to flee but were apprehended on chase and on interrogation Biral Roy and Vimlesh Kumar Gupta confessed their guilt and divulged that they along with Raghubar Rai and other persons had committed the murder of Nand Kumar Thakur on 15.7.2004 and threw the dead body into the flood waters. These two apprehended accused also gave out that they could show the place where the dead body was. He further stated that the police along with both the accused persons started searching in the light of Petromax and torch but due to the late night and fury of the flood water the search could not be concluded and on the following day at about 7 A.M. the search started again and they proceeded towards Dhrubgama along with accused persons by boat and the dead body Nand Kumar was pointed out and identified by the apprehended accused. The dead body was lying in a clump of bamboos and a shisham tree towards the north east corner of Dhrubgama. The dead body was floating face upwards and was clad in Kurta- Payjama. Chandrakant Thakur ( P.W. 2) who was accompanying the police party identified the dead body of his brother by face and his ring . The dead body was brought to the darwaja of Prabhakar Jee where the inquest report by carbon process was prepared and the same was attested by him and Chandra Kant Thakur who put their signatures 11 thereupon. The statement of P.W.4 finds corroboration from P.W.2 and the Investigating Officer (P.W.10). 20. The defence has assailed the impugned Judgment of conviction and order of sentence on the ground that although Nand Kumar Thakur was found missing from the night of 15.7.2004, no information about this fact was given to the police by any of the relatives till the F.I.R. was lodged eight days thereafter. No reasonable explanation is forthcoming from any of the prosecution witnesses for this inordinate delay in lodging the F.I.R. . It is evident from the deposition of P.W.6, the informant, that she had not stated anything to the inmates of the house, namely, her mother-in-law and sister-in-law. The other aspect which had been asserted is that all the witnesses who have supported the prosecution case are in some way related to the deceased and the informant and the defence has put forward the plea of the evidence being those of interested witnesses. Relying on the deposition of P.W. 3, it was submitted that he had company of Suraj Sahni , Raj Kumar Sahni and the Samdhi of his brother on the boat from which he had seen Nand Kumar Thakur being taken away by the accused but curiously none of these independent witnesses have been examined by the prosecution. Similarly, although several persons were present at the time of recovery of the dead body and preparation of inquest report, none of these persons were sought to be examined in the court or were made to figure as witnesses of the inquest. In this context, it was sought to be pointed out with reference to the deposition of P.W.10 that no investigation was held with regard to the alleged motive and there is also no explanation as to why the confessional statements of Biral Roy and Vimlesh Kumar Gupta were recorded at the Police Station at 11 A.M. after the recovery of the dead body and not prior thereto when they had allegedly confessed of their guilty on the previous evening and were in custody throughout the night. 21. The defence with reference to the postmortem report (Ext.3) and the testimony of Dr.Ashok Bardhan Sahay ( P.W.9 ) who conducted the postmortem 12 on the dead body of Nand Kumar Thakur submitted that no external ante mortem injury was found on the dead body which was swollen and putrefied and the face of the dead body was moth-eaten and full of maggots . The cause of death was attributed to asphyxia due to drowning and the time since death was given as 10 to 14 days. 22. From the prosecution evidence and the impugned judgment it appears that the conviction is based primarily on the “last seen together” theory ignoring the defence case as also the postmortem report and the evidence of the doctor conducting postmortem examination as also the defence case. It is necessary to mention that although the confessional statements of the two accused have been taken into account, Vimlesh Kumar Gupta was not examined since he was shot to death allegedly by the son of the informant. The other accused who confessed has been convicted. A co-accused who confesses is naturally an accomplice and the danger of using such extra-judicial confession is not far to appreciate. The danger is in no way lessened when such confession is not on oath and cannot be tested by cross examination. Prudence will dictate the same rule of caution in case of a witness who though not an accomplice is regarded by the Judge as having no greater probative value. That