DEATH REFERENCE No.3 OF 2010 The death reference and the two appeals are against the judgment and order dated 23.1.2010 and 30.1.2010 respectively passed by Ist Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 326 of 2009/Tr. No. 38 of 2009. THE STATE OF BIHAR ………… Appellant. -Versus- RAJU SINGH, Son of late Ramji Singh, resident of village – Amatha, Police station – Sheosagar (Baddi O.P.), District – Rohtas at Sasaram. ……. Respondent. With CR. APP (DB) No.420 OF 2010 RAJESH SINGH, Son of late Ramji Singh, resident of village – Amatha, Police Station – Sheosagar (Baddi O.P.), District – Rohtas at Sasaram. …… Appellant. Versus THE STATE OF BIHAR ………….. Respondent. With CR. APP (DB) No.467 OF 2010 RAJU SINGH, Son of late Ramji Singh, resident of village – Amatha, Police station – Sheosagar (Baddi O.P.), District – Rohtas at Sasaram. ………. Appellant. Versus THE STATE OF BIHAR ………. Respondent. For the Accused-Appellants : - Sri Vikram Deo Singh, Advocate Sri Sadanand Roy, Advocate Sri Manoj Kumar, Advocate Sri Dharmendra Kr. Singh, Advocate Sri Narendra Kumar, Advocate For the Informant : - Sri Kamal Nayan Chaubey, Sr. Advocate Sri Siddharth Harsh, Advocate For the State : - Sri Ashwini Kumar Sinha, Addl. P.P. ----------- P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE SRI JUSTICE DHARNIDHAR JHA ******* Mridula Mishra & Dharnidhar Jha, JJ. Four accused persons including appellants Rajesh Singh and Raju Singh were put on trial by the learned Ist 2 Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 326 of 2009/Tr. No. 38 of 2009 by framing charges under Sections 364/34, 302/34 & 201/34 of the Indian Penal Code. While Vikrama Singh and Sugreev Singh were acquitted of the charges, the two appellants before us were found guilty for committing the offences under Sections 302/34, 364/34 & 201/34 of the Penal Code by judgment dated 23.3.2010, consequent upon which the order of sentence was passed by the learned Judge on the 30th of March, 2010. Appellant Raju Singh was directed to be hanged by his neck till he was dead for committing the offence under Section 302/34 of the IPC, whereas no separate order of sentence was passed by the learned trial Judge on him under Sections 364/34 & 201/34 of the Penal Code. So far appellant Rajesh Singh is concerned, he was directed to suffer rigorous imprisonment for life and to pay a find of Rs.10,000/- else to suffer R.I. for a further period of one year for being found guilty under Section 302/34 of the IPC. The other two sentences of R.I. for 10 years and a fine of Rs.3,000/-, in default six months’ R.I. under Section 364/34 of the IPC and R.I. for 7 years with fine of Rs.2,000/- else R.I. for three months were also inflicted 3 upon appellant Rajesh Singh. For, the appellant Raju Singh were inflicted the extreme penalty, the learned Judge made a reference under Section 366 of the Cr.P.C. to this Court for confirmation of the order of sentence passed by him. This is how we have death reference 03 of 2010 along with two criminal appeals noted above, before us. 2. The prosecution narration could be put down as under. 3. P.W. 9 Prem Lata Devi, who is the sister of P.W. 8 Shivajee Singh, had come to village – Amtha under P.S. Shivsagar (Baddi) to her father’s house to attend the marriage ceremony of P.W. 8 Shivajee Singh. It appears from the evidence of P.W. 9 that she had two children accompanying her. A son named Sundaram, who was aged 3 years and a daughter of 3 months in her lap. On 10.5.2009, the marriage of the daughter of one Ram Sagar Singh was to be solemnized in the evening. The ceremony of Dwarpuja was under way and the Barat party along with the villagers had assembled at the house of the said Ram Sagar Singh. Sundaram, the son of P.W. 9 Prem Lata Devi, was playing there at about 8.30 p.m. It appears that he went missing. Hectic search was made of him throughout the 4 night and at all possible places but to no avail, resulting into the filing of an information on 11.5.2009 at 6.05 hours, i.e., 6.05 a.m. That information has been brought on record as Ext. A. 4. It appears that while the search was being continued throughout the day of 11.5.2009 and in its evening also, the dead body of the child was found floating in the well situated in the premises of the house of a certain Sukhdeo Singh. The dead body was retrieved by the informant and others and thereafter a full-fledged fard- beyan was given by P.W. 8 Shivajee Singh at 21.30 hours on 11.5.2009. That fard-beyan has been marked Ext.5 by the learned trial Judge. It was stated in the fard-beyan that the child Sundaram was seen being lifted by appellant Raju Singh and Rajesh Singh to be taken away. The villagers could not attach much importance to it, as they thought that the two appellants were also related as Mama to the ill- fated child. Ultimately, the dead body of the child was found as just narrated. It was further alleged in the fard- beyan that it appeared that the neck of the child had been twisted and it further came in the light that the two acquitted accused Sugreev and Vikrama also went with the 5 present two appellants after they had picked up the child for being taken away and they were the persons, who had killed the child after twisting his neck and had thrown the dead body in the well. 5. The reason for committing the murder of the child by the accused persons was the family dispute between the parties and in that connection threats had been held out earlier by them of committing any serious act of offence. 6. It appears that Ext.5 was recorded by S.I. D.N. Jha (P.W.10) at the village near the well from where the dead body of the child had been retrieved. The evidence of P.W. 10 S.I. D.N. Jha indicates that he was telephonically informed by P.W. 8 Shivajee Singh about the retrieval of the dead body from the well and the same being kept by the side of it. P.W. 10 also stated that P.W. 8 Shivajee Singh lodged an information at the police station at 6.05 a.m. on 10.5.2009 and that information indicated that the child had gone missing. P.W. 10 made a station diary entry and proceeded from the police station at 8.50 p.m. along with two A.S.I. and few police personnel to the place of occurrence to reach there by 21.15 hours to hold inquest 6 upon the dead body and to record the fard-beyan of P.W. 8. After recording the same he read the same over to the informant, who finding it correctly recorded, signed it. He sent a copy of the fard-beyan to the police station for registering a case and he himself took up the investigation. The FIR of the case has been marked as Ext. 6. The inquest report (Ext.4) was prepared at 5.45 hours on 12.5.2009. Thereafter he sent the dead body for post-mortem examination and after holding the inspection of the place of occurrence, recorded the statements of different witnesses, made investigation about the calls made by different persons on the cellular phones of appellant Rajesh Singh and acquitted accused Sugreev Singh and after completing the investigation sent up the accused persons including the two appellants for their trial. 7. During the course of the trial a total number of 11 witnesses were examined. P.W. 1 Birendra Singh and P.W. 2 Jalendra Singh have stated about the child going missing, when Dwarpuja ceremony was going on in the house of Ram Sagar Singh, whose daughter was to be married off. P.W. 3 Ram Sagar Singh has also stated the same facts. P.W. 5 Sukhdeo Singh also gave in dock on 7 similar lines that Sundaram had gone missing. P.W. 6 Satendra Singh was declared hostile as he did not state anything, even that Sundaram had gone missing. Thus, what we find from the evidence of P.W’S. 1, 2, 3 & 5 is that there is evidence sufficiently available on record that Sundaram, the son of P.W. 9 Prem Lata Devi and nephew (Bhagina) of P.W. 8 Shivajee Singh, had gone missing from the venue of marriage in the night of 10.5.2009. The evidence of P.Ws. 8 and 9, the informant and his sister Prem Lata Devi is that a hectic search was made by all concerned for tracing out the child but without any success. So far the evidence of P.W. 7 Prabhat Kumar Singh is concerned, he was the uncle of the deceased child and he had come on the 3rd day after the dead body of the child was retrieved after having learnt about the incident, as such he is a hearsay witness. 8. P.Ws. 8 and 9, i.e. the informant and his sister Prem Lata Devi have stated that it were the two appellants Raju Singh and Rajesh Singh, who were seen picking up the child and taking him away and were being followed by the acquitted two accused persons. They are the witnesses, who also made statements along with others on the finding 8 of the dead body from the well. P.W. 4 Dr. Rajesh Kumar Singh had held post-mortem examination on the dead body of Sundaram and had prepared the post-mortem examination report (Ext.2) and had found that the cervical vertebra had been fractured on account of the deceased being asphyxiated. In cross-examination P.W. 4 stated that fracture of the cervical vertebra could be possible by the accidental fall into the well. 9. The learned trial Judge in spite of having found recorded his finding in para 21 that there were documentary evidence, which initially did not point out the complicity of the two appellants Raju Singh and Rajesh Singh and there being a report after due verification of the statements in Ext.A, which did not disclose as to who could be the person or persons, who could have caused disappearance of the child, went on convicting the two appellants Raju Singh and Rajesh Singh while acquitted Vikrama Singh and Sugreev Singh. While hearing on sentence the maximum was awarded to appellant Raju Singh. 10. The only point which has been raised before us is as to whether in the face of the contents of Ext.A and the 9 report Ext. C, which were fully brought into the knowledge of P.Ws. 8 and 9, was in legitimate for the court below to, firstly, convict the appellants and, secondly, to pass a sentence of extreme penalty upon appellant Raju Singh. 11. We were taken through the evidence of the witnesses and this appears admitted by P.W. 8 in paragraph 7 and also the evidence available of five prosecution witnesses that Prem Lata had come to his house about 13 days prior to the occurrence along with her deceased son Sundaram to participate in the marriage ceremony of P.W. 8. This is also available in the same paragraph 7 that there was bad relationship between the family of the appellants and that of P.W. 8. This was also admitted by P.W. 9 Prem Lata Devi in her evidence in paragraph 21 of her evidence, when she stated that there was no perceptible enmity between the prosecution and the two appellants, but they were not eating at each others place and that the strained relationship had developed much before P.W. 9 was married off. P.W. 9 has stated that she got married 9 years prior to the marriage of P.W. 8 Shivajee Singh. Thus, we are very much conscious that the strained relationship between P.W. 8 and the appellants could very well be 10 enough to raise some degree of suspicion that it could be the deemed enemies, who could also be related to them, who could have done the act to settle some scores. However, the evidence on record suggests us that the case was not such that the two appellants should have been convicted. 12. It is admitted in paragraph 23 of his evidence by P.W. 8 that he had gone to Baddi O.P. and had filed a written report on 11.5.2009. This is how Ext. A was brought on record. Ext. A in its original would be available to us at page 118 of the paper book. It is stated in this document that while P.W. 9 had gone to witness the ceremonies in the marriage of the daughter of Ram Sagar Singh, her son Sundaram aged about 3 years, who was of fair complexion and was wearing a pair of shoes with jeans pant and half shirt, was playing there and he went missing in the night of 10.5.2009. The informant and others made hectic search for him but he could not be traced out. A request was made to the Officer-in-charge of Shivsagar (Baddi) O.P. by Ext. A to make his own efforts by publishing the incident of the boy going missing. We could not have considered the contents of Ext. A in isolation, had 11 the defence not brought its contents on record. The attention of P.W.8 was drawn to the contents of Ext. A in paragraph 36 of his evidence. The whole contents of Ext. A was put to him and it was suggested to him that he had filed such a report on 10.5.2009. Surprisingly P.W. 8 was denying that he had made such statement in Ext. A. We have the evidence of the Investigating Officer, who was the Officer-in-charge of the Police Station on the relevant day. P.W. 10 S.I. D.N. Jha stated in the very opening lines of his evidence that P.W. 8 had come to the police station on 11.5.2009 to lodge a report about his Bhagina going missing in the night of 10.5.2009 and he had made an entry in station dairy bearing no. 162 dated 11.5.2009. Not only that it appears that the veracity of the contents of Ext. A was enquired into. This could very much be appearing from the evidence of P.W. 10 both in paragraphs 3, 26, 27 & 28. The same witness stated in paragraph 29 that the veracity of the information was got enquired into by A.S.I. Ram Awatar Singh and that report was received and was entered into station diary entry bearing no. 177 dated 11.5.2009 at 17.00 hours. This station diary entry has been marked Ext. C as may appear from the evidence of P.W. 10 in 12 paragraphs 30 and 31. We were taken through the contents of the two documents, we find that in none of the two documents even a suspicion was cast against any person least to talk of the accused persons that they could be the persons, who could have directly or indirectly been involved in commission of the offence. Ext. A, which was the first information in point of time as regard the fact of the child going missing, in fact appears a pure and simple missing information in respect of the child and the request, which was made to the police was in terms of making its own efforts on publishing the incident of the boy going missing so that he could be traced out. It appears to us that subsequently on account of some suspicion the informant and his sister (P.W. 9) built up a story that the two appellants Rajesh Singh and Raju Singh were seen taking the boy away. This evidence has not been found by us of a class as to satisfy our conscience. The reason, which we find, firstly, is that if at all P.W. 8 or 9 had seen the two appellants picking up the boy then it was legitimate for them to have put down a full-fledged information before the police about the boy being kidnapped or being forcibly taken away instead of filing a missing report, that was not 13 done. The explanation, which was attempted to be offered to us, during the hearing of the present appeals by the learned counsel for the informant was that the informant and his sister probably were being guided by their fear of endangering the life of the child if they filed a full-fledged First Information Report of committing the offence by the two appellants. We do not find any reason for the above apprehension, inasmuch as, no one has come to support even this fact that the two appellants were seen by any of them taking away the child. It was a day of marriage. Admittedly, there was a huge gathering there and the Barat party had also arrived there and if the child was being picked up by appellant Raju Singh and Rajesh Singh, it could legitimately be noted that the same incident could be seen by many other independent witnesses. Many of them have come to depose in the case as may appear from the evidence of P.W’S. 1, 2, 3, 5 and others, but none stated that it were the two appellants, who had been seen taking away the boy. None of them has also stated that either P.W. 8 or P.W. 9 had whispered to any of them that the child had been picked up and taken away by the two appellants. It is not that the witnesses were not cross-examined on this fact. 14 P.W. 9 was put a question in paragraph 25 of her evidence and admittedly she did not told the above fact to any of her villagers, though she claimed pointing out the above fact to P.W. 8. However, had P.W. 9 pointed out the above incident to P.W. 8 he must have filed a full-fledged report. We believe and we are convinced from the evidence on record that it was a subsequent development, which could crop up in the minds of P.Ws. 8 and P.W. 9 to rope in the accused persons on apriori suspecting them to have committed the offence. 13. P.W. 4 the doctor has pointed out that when the fracture of the cervical vertebra could be on account of fall in water. We are aware that it was a child of 3 years, who was falling in the well; his system could be too tender to withstand the pressure of a fall from a height on a liquid surface, like, water. There was not even a single scratch or bruise on any part of the dead body. It might be a possibility, as was suggested to some of the witnesses, that the child while playing could have strayed to fall into the well so as to be drowned and found subsequently dead. 14. After having considered the evidence available to us on record, we find that the learned trial Judge was 15 unfairly passing a judgment of conviction as regards the two appellants Raju Singh and Rajesh Singh. It was a clear case in which the two appellants deserved to be acquitted. Accordingly, we negative the death reference, allow the two appeals by setting aside the judgment of conviction and the sentences passed upon the two appellants. Appellant Raju Singh is in custody. He is directed to be released forthwith, if not wanted in any other case. Patna High Court, Dated 29th October, 2010, DKS/N.A.F.R. (Mridula Mishra, J.) (Dharnidhar Jha, J.)