Death Reference No. 13 of 2007 With Criminal Appeal No. 1402 of 2007 **** Reference made by Sri Vipin Bihari Srivastava, Additional District & Sessions Judge, Fast Track Court, IV, Samastipur, vide letter no. 407, dated 04.10.2007, and against the judgment of conviction, dated 28.09.2007, and order of sentence, dated 03.10.2007, passed by him in Sessions Trial No. 46 of 1996 **** Death Reference No.13 of 2007 The State of Bihar .. Appellant Versus Nand Kishore Yadav .. Condemned Prisoner **** Criminal Appeal No. 1402 of 2007 Nand Kishore Yadav, son of late Ram Agyan Yadav, resident of village Alampur, P.S. Bibhutipur, district Samastipur .. Appellant Versus The State of Bihar .. Respondent **** For the appellant .. M/S. R.B.S. Pahapuri, Amitabh Bharti & Sanjeev Kr. Singh, Advs. For the State .. Mr. Lala Kailash Bihari Prasad, Additional P.P. **** 2 P R E S E N T THE HON'BLE JUSTICE MRS. MRIDULA MISHRA THE HON'BLE MR. JUSTICE SYED MOHAMMAD MAHFOOZ ALAM Mridula Mishra, J. Death Reference No. 13 of 2007 has been made to the High Court for confirmation of the judgment and order, dated 03.10.2007, passed by the Additional District & Sessions Judge, Fast Track Court, IV, Samastipur, in Sessions Trial No. 46 of 1996. Trial Court as by the impugned judgment and order has convicted Nand Kishore Yadav for offence under Sections 302, 201 and 120B of the Indian Penal Code and sentenced him to be hanged till death for committing the offence under Section 302 of the Indian Penal Code. No separate sentence has been passed for conviction under Sections 201 and 120B of the Indian Penal Code. Nand Kishore Yadav has preferred Cr. Appeal No. 1402 of 2007 for setting aside the judgment and order of sentence, passed by the Trial Court. 2. The prosecution case unfolded in fardbeyan of informant, Ganga Prasad Yadav (P.W. 8), before the Offier-in-Charge of Bibhutipur Police Station on 04.02.1995 at 09.30 a.m. is that on 03.02.1995 at 10.30 a.m. The informant (P.W. 8) was returning home after cutting mustard (tori) crop. At that time he saw his neighbour, Nand Kishore Yadav, with his son, Saroj Kumar Rai, aged about seven years. Nand Kishore Yadav was giving a cycle ride to the son of the informant. At that time, one Ashok Yadav was also with them. The informant after taking lunch, again, went to his field and came back home at 05.00 p.m. On coming back he asked his wife about the son and she replied 3 that she has not seen him since 10.00 a.m. and last she saw him in the company of Nand Kishore Yadav and Ashok Yadav at 11.00 a.m. The informant, along with his cousin, started searching his son and also enquired at the house of Nand Kishore Yadav and Ashok Yadav, but, they were not present at their houses. The informant with the help of villagers tried to search his son in the night, but, could not go to the Police Station because it was already quite late. On the next day, i.e., 04.02.1995 at about 07.00 a.m. in the morning villagers, Ramashish Yadav and Yogendra Yadav, came to inform the informant that the dead body of his son, Saroj, is lying in the maize field of Nawal Kant Jha. Informant and his family members rushed to the spot and found dead body of Saroj in the field. The informant and his family members started crying out of grief. In the meantime, two girls, namely, Phulo Kumari and Asha Kumari disclosed before them that on 03.02.1995 at 12.00 p.m. while they were scraping grass, they saw Nand Kishore Yadav and Ashok Yadav assaulting the deceased in the „Arhar‟ field. They heard cry of Saroj and rushed towards the field. They saw Ashok Yadav pressing the mouth of Saroj and Nand Kishore Yadav pressing chest of Saroj. Both girls, thereafter, came back to their field. At that very time Ashok Yadav came and threatened the girls of dire consequences, in case they will disclose this incident to any one. Out of fear they went to their house and did not disclose it to any one. The motive alleged in the occurrence is previous enmity in between the informant and the accused persons. 3. Bibhutipur P.S. Case No. 12 of 1995 was registered on the basis of fardbeyan of P.W. 8 under Sections 302, 201 and 120B of the Indian 4 Penal Code against both the accused persons. Cognizance was taken and the case was committed to the Court of sessions for trial. Ashok Yadav absconded during the trial, as such, the judgment and order of conviction was passed only against Nand Kishore Yadav. 4. Prosecution, in order to prove the charges, examined altogether ten witnesses. P.W. 1, Phulo Kumari, is the star witness as she is the sole eye witness of the occurrence. P.W. 3, Surya Narain Yadav, P.W. 4, Ramji Yadav, P.W. 5, Shivdhari Yadav, P.W. 7, Deochand Devi and P.W. 8, Ganga Prasad Yadav (informant and father of the deceased) claimed to have last seen the deceased in the company of accused persons. P.W. 2 is a formal witness, who identified signature as exhibits 1 and 1/1 on inquest report. P.W. 6, Nawal Kant Jha, is the person in whose maize field the dead body of the deceased was found. P.W. 10, Dr. Binod Kumar Verma, is the surgeon, who held autopsy over the dead body of the deceased and submitted post mortem report. P.W. 9, Madan Prasad Kharhar, is the investigating officer, who after investigation submitted charge sheet. 5. Counsel for the appellant submitted that there are two parts of the prosecution story. First part relates to the story where the accused persons were last seen in the company of the deceased. P.Ws. 3, 4, 5, 7 and 8 have deposed on this point that the deceased was last seen in the company of the accused persons in between 10.00 to 11.00 a.m. None of these witnesses have seen the accused taking away, thereafter, to the place, which, according to the evidence of P.W. 1, is the place of occurrence. A very vital link to connect the 5 accused appellant with the alleged offence is missing and on the basis of such evidence the appellant can not be held guilty of offence under Section 302 of the Indian Penal Code. It has also been submitted that P.Ws. 3, 4, 5, 7 and 8 are all family members closely related to each other, as such, interested and partisan witnesses. In the evidence of these witnesses it has come that there are several houses adjacent to the place where the deceased was last seen in the company of the accused, but, no other person than the family members of the informant have been examined by the prosecution to prove this fact that the deceased was last seen in the company of the accused. It has also been submitted by the counsel for the appellant that though, in the first information report, the informant has alleged a motive and stated that because of enmity, on account of purchase and transfer of a particular land, offence has been committed by the accused it has not been proved. The onus for proving motive was on the prosecution, but, it has miserably failed in proving it though specifically stated in the first information report. P.W. 8 was given a suggestion that there was no enmity on account of transfer of land as the father of accused appellant was himself an identifying witness in the sale deed through which land was purchased from Gulabia Devi. This suggestion has though been denied by P.W., 8, but, it can be inferred that there did not exist any enmity on account of transfer of a particular piece of land. Since, there was no cogent motive for committing such a heinous offence, it seems that the appellant has been falsely implicated by the prosecution in the murder of informant‟s son. How the occurrence took place and in which manner it happened for that defence is not 6 answerable and simply because the accused appellant has not come out with another story of occurrence, he is not liable to be convicted. 6. Mr. Lala Kailash Bihari Prasad, counsel for the State, on the other hand, has submitted that the evidence of last seen, in the present case, is such a strong circumstance, which can not be brushed aside. The evidence of last seen connected with the evidence of P.W. 1, Phulo Kumari, who is an eye witness, if considered, it is apparent that there is very short time gap in between the time when the deceased was seen in the company of the accused and the time when P.W. 1, Phulo Kumari, witnessed the accused persons committing the offence. Even if there is no evidence relating to the short gap of time, it can not be presumed that there is any missing link. There is no gap in between the evidence of last seen and the actual occurrence. It has further been submitted by him that since the prosecution has been able to bring reliable evidence establishing that the missing boy was last seen in the company of the accused and was never seen, thereafter, it is obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. Since, this circumstance has not been explained by the accused he has rightly been convicted by the trial Court under Section 302 of the Indian Penal Code. In support of his submission the counsel appearing for the State has placed reliance on a decision reported in 2003 S.C.C. (Cri.), 382 (Sahadevan @ Sagadevan vrs. State represented by the Inspector General of Police, Channai) and 2008 (4) B.B.C.J. (S.C.) 43 (Manivel & Ors. vrs. State of 7 Tamil Nadu). In the recent decision reported in B.B.C.J., the Apex Court has held as follows : “The appellants convicted for causing death of the deceased as the deceased was last seen by prosecution witnesses in their company and dead body was found floating in the well. Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances were found to be incompatible with the innocence of the accused or the guilt of any other person. P.W. 7 saw the deceased in the company of the accused persons in the evening and earlier next morning his dead body was found in the water of a well, conviction upheld.” 7. Another contention of the counsel for the appellant, relates to reliability of the evidence of sole eye witness, P.W. 1. It has been contended that P.W. 1 is also related to other prosecution witnesses as well as the deceased. Her introduction in the case is the master mind of the investigating officer, P.W. 9, which has come in the evidence of P.W. 6 that the police when reached at the place of occurrence called the informant and took him aside. The investigating officer asked something from Gango and, thereafter, there was some exchange of information in between Gango and the investigating officer. This evidence read with evidence of P.W. 1 will indicate that till arrival of the investigating officer the informant had no such story as revealed in the 8 fardbeyan. P.W. 1 has stated in paragraph 6 of her evidence that within five minutes of the occurrence she left the place and went to her house. Her parents were not there. They came in the night. While going from the field to her house she did not meet any one. In paragraph 7 she has stated that she had not disclosed about the incident to any one till she was interrogated by the investigating officer. Before her interrogation by the investigating officer she had not gone any where and remained inside her house. If that is so, then how the informant came to know that P.W. 1 and Asha Kumari have witnessed the occurrence and they have seen Nawal Kishore Yadav and Ashok Yadav committing murder of Saroj. It has also been submitted that the connivance of the investigating officer with the informant is further disclosed from the evidence of P.W. 4. P.W. 4 is the father of informant and grandfather of deceased, Saroj. He has deposed before the Court that in the night itself information was given at the Police Station regarding disappearance of Saroj. Police came at the place of occurrence next day at 06.30 in the morning. The investigating officer saw the dead body. He loitered for some time and went back to the Police Station. Thereafter, his son, Gango, and others went at the Police Station. P.W. 4 also went at the Police Station and at the Police Station fardbeyan of informant was registered. Counsel for the appellant submits that P.W. 8, in his evidence, has stated that Asha Kumari and Phulo Kumari disclosed before him regarding the occurrence prior to the arrival of the investigation officer. The statement of P.W. 8 is falsified by the evidence of P.W. 2, who has deposed that the investigating officer came at the place of 9 occurrence and he recorded fardbeyan of P.W. 8, Gango Yadav. The investigating officer, thereafter, enquired about Phulo Kumari and Asha Kumari and, thereafter, both of them were brought near the field. Subsequently, statement of Phulo Kumari and Asha Kumari was recorded by the investigating officer. P.W. 3, on the other hand, stated that Asha Kumari and Phulo Kumari arrived near the dead body in the field of Nawal Kant Jha and disclosed about the occurrence. One of the witnesses has stated that only guardian of Phulo Kumari and Asha Kumari came in the field of Nawal Kant Jha. P.W. 1, in her deposition, has stated that for the first time she narrated the incident before the investigating officer. In such case, how the prosecution came out with a story. This is a story, which has been concocted by the investigating officer in connivance with P.W. 8. Further, it has been submitted that fardbeyan, as per the evidence of P.Ws. 2, 3 and 6, was recorded in the field of Nawal Kant Jha, then how it has been stated by P.W. 4 that no fardbeyan was recorded at the place of occurrence, but, the investigating officer went back to the Police Station and there P.Ws. 4, 8 and others also went and fardbeyan was recorded. In fact, the fardbeyan which was recorded at the place of occurrence was different, but, in consultation with the investigating officer another fardbeyan was recorded at the Police Station in which name of accused appellant and Ashok Yadav was given and they were falsely implicated. It has also been stated that P.W. 1 was a minor girl. At the time of deposition in Court also she was fourteen years of age. It has come in the evidence that P.W. 8 has given financial support in solemnization of the marriage of P.W. 1. Under such 10 obligation P.W. 1 has falsely deposed against the accused appellant. Counsel for the appellant has also submitted that P.W. 1 in her deposition has stated that she could see the occurrence as at that time she was scraping grass near the place of occurrence. The investigating officer did not find any sign of scrapping of grass near the place of occurrence. If it was not found by the investigating officer, there is no reason for presence of P.W. 1 near the place of occurrence. 8. The counsel for the State, on the other hand, stated that P.W. 1 is the most natural witness. Her conduct, disclosed in her deposition, indicates that she became so apprehensive on account of threat enhanced to her, she did not disclose this incident to any one, even to her parents. Next day in the morning when the investigating officer came and several persons gathered at the place of occurrence she found herself confident enough to disclose the incident. There is nothing to show that either she was tutored or she did not disclose this fact before the villagers prior to arrival of investigating officer at the place of occurrence. In the evidence of P.Ws. 2 and 4 it has come that P.W. 1 had disclosed about the incident before the villagers prior to the arrival of the investigating officer. In such circumstance, it can not be considered that prosecution case is concocted and fabricated story and the result of consultation in between P.Ws. 8 and 9, the investigating officer. 9. Considering the evidence of witnesses, on record, I find that P.Ws. 2, 3, 4, 7 and 8, who are most natural witnesses, have deposed on the point of last seen. These witnesses have seen the deceased in the company of accused in between 10.00 – 11.00 a.m. P.W. 1, thereafter, saw the deceased 11 with the accused persons in the field at 12.00 p.m. She witnessed pressing of mouth by Ashok Yadav and pressing of the chest of the deceased by accused appellant, Nand Kishore Yadav. This evidence of P.W. 1 has duly been corroborated by the medical evidence and the evidence of P.W. 10, doctor, who held post mortem. One rib of the deceased was fractured, his lungs and other internal part were found congested. On account of pressure on the chest, blood had come out from the nostril and the ear. The doctor had stated that on account of such pressure there will be bleeding from the nose and the ear. Tongue was also found to be protruded and coming out of the mouth. All these evidence support the evidence of P.W. 1 relating to the manner of occurrence. 10. Counsel for the appellant has contended that so far eye witness‟s account of the occurrence by P.W. 1 is concerned, it was disclosed for the first time, near about twenty four hours later. In case such an occurrence would have taken place in her presence, it is highly improbable that she could have concealed this fact for such a long time and would not have disclosed even to her parents. The counsel for the appellant has relied on a decision reported in 1976 S.C., 2488 (State of Orissa vrs. Brahmanand). In that case also there was solitary evidence of an eye witness, disclosed after one and half days of the occurrence. Evidence of the witness was disbelieved by the High Court. The State of Orissa preferred appeal before the Supreme Court against the appellant‟s acquittal and the Supreme Court dismissed the appeal holding “eye witness not disclosing name of assailant for a day and half after the incident and the explanation offered for non-disclosure was untenable. None-disclosure was 12 a serious infirmity which destroyed the credibility of the evidence of the witness”. It has been submitted by the appellant‟s counsel that in the present case also the circumstance is similar and conviction placing reliance on such evidence is not legal. I find that the difference, in the present case and the case in which finding was recorded by the Apex Court, is that the witness, in the present case, is a minor and must have been very much shocked, specially when there was a threat not to disclose. The judgment cited by the Supreme Court does not fully cover present case. 11. In the given circumstance, the evidence of P.W. 1 can not be brushed aside. I find that the prosecution has been able to prove charge under Section 302 of the Indian Penal Code. 12. So far the conviction under Sections 201 and 120B of the Indian Penal Code is concerned, there is evidence of P.Ws. 3, 4, 5, 7 and 8 that seven years aged son of the informant was being entertained and allured by the accused persons for more than one hour by giving him a cycle ride. Once the accused persons gained over the confidence of the child, he was taken to the field of Nand Kishore Yadav and committed the offence. P.W. 1 and Asha Kumari, were present in the neighbouring filed, witnessed the occurrence, but, they were threatened not to divulge it to any one or they will also meet similar fate. Due to this threat two minor girls, kept silence and could get courage to reveal it on recovery of the dead body in presence of several villagers. Thus, the accused appellant and the accused, who absconded during trial, had conspired to commit offence and subsequently got the dead body thrown in 13 other field in order to screen the evidence. Ocular evidence as well as the circumstantial evidence sufficiently proves charge under Sections 201 and 120B of the Indian Penal Code. 13. First part of present case is based on circumstantial evidence and the final occurrence is based on ocular evidence of an eye witness. It is not a case which squarely rests on circumstantial evidence. In a case based on circumstantial evidence, the law is settled that the circumstance from which the conclusion of guilt is drawn should be fully proved and such circumstance must be conclusive in nature. There should not be any gap left in the chain of the evidence and the circumstances must be consistent only with the hypothesis that the guilt of the accused is totally inconsistent with his innocence. In the present case, the circumstantial evidence, regarding the accused, last seen in the company of the deceased, is further corroborated by the eye witness‟s account of P.W. 1. There is no missing chain of evidence for coming to this conclusion that the accused appellant is guilty of the murder of the missing child. No explanation regarding disappearance of the child has been given by the accused appellant, when circumstance, which came against him in the evidence of witnesses, were put to him for recording his statement under Section 313 of the Criminal Procedure Code. This is also a circumstance, which goes against the appellant and supports the hypothesis of his guilt. 14. Thus, the evidence available on record fully establishes that the prosecution has succeeded in proving the charge under Sections 302, 201 and 120B of the Indian Penal Code levelled against the appellant and so I am of 14 the view that he has rightly been convicted by the trial Court for the above charges. In this view of the matter, the conviction of the appellant under Sections 302, 201 and 120B of the Indian Penal Code is upheld. 15. Now only question which is to be answered whether in a case of this nature death sentence should be imposed. The aim of punishment is only to prevent committing new crimes. Punishments, therefore, should be chosen in due proportion to the crime so as to make most efficacious and lasting impression on the minds of men and at least an impression on the criminal. The punishment should be efficacious to the extent that the disadvantage of the punishment should exceed the advantage anticipated from the crime. In the present case, prosecution has not been able to prove motive for the offence. In the circumstance, what advantage the accused appellant would have anticipated in committing this offence has not been brought by evidence on record. This principle has been settled by a catena of decisions of the Apex Court that there should be intensive and exhaustive enquiry into accused related parameters before imposing the maximum sentence by a Court of law. Reasons must be detailed stating querry why any punishment other than the maximum punishment will not be sufficed. The law itself mandates that for imposing death sentence, special reasons are to be assigned in terms of sub section (3) of Section 354 of the Code of Criminal Procedure. In the reported decision L. Ram Singh vrs. Sonia & Ors. [(2007) 3 Scale 106] there extra ordinary situation was explained in following words : 15 “The fact that murders in question were committed in such a diabolic manner while the victims were sleeping, without