DEATH REFERANC No.12 OF 2007 ------- Reference under section 366 of the Code of Criminal Procedure made by Additional Sessions Judge I, Patna vide his letter no.370 dated 5.10.2007. ------- The State of Bihar Versus 1. Anand Mohan 2. Prof. Arun Kumar Sinha 3. Akhlakh Ahmad WITH CRIMINAL APPEAL (DB) NO.1282 OF 2007 Lovely Anand the then elected Member of Parliament wife of Sri Anand Mohan, resident of village- Panchgachhia, Police Station- Bihra, District Saharsa …. Appellant WITH CRIMINAL APPEAL (DB) NO.1308 OF 2007 Vijay Kumar Shukla alias Munna Shukla, son of late Ram Das Shukla, resident of village Khanjaha Chak, P.S. Lalganj, District Vaishali. …. Appellant WITH CRIMINAL APPEAL (DB) NO.1318 OF 2007 Sashi Shekhar Thakur son of Late Madanendra Pd. Thakur, resident of Mohalla Juran Chhapra, P.S. Brahamyma, District Muzaffarpur …. Appellant WITH CRIMINAL APPEAL (DB) NO.1327 OF 2007 2 Harendra Prasad @ Harendra Prasad Sahi, son of late Pasupati Thakur, resident of Chakiya House, Imali Chatti, P.S. Brahampura, District Muzaffarpur …. Appellant WITH CRIMINAL APPEAL (DB) NO.1345 OF 2007 Anand Mohan son of late Sachita Nand Singh, the then Member of Legislative Assembly and elected Member of Parliament, resident of village- Panchgachhia, Police Station Bihra, District Saharsa …. Appellant WITH CRIMINAL APPEAL (DB) NO.1354 OF 2007 Prof. Arun Kumar Sinha alias Arun Kumar Singh son of late Basawan Singh, resident of Chakkar Maidan, P.S. Kazi Mohammadpur, District Muzaffarpur …. Appellant WITH CRIMINAL APPEAL (DB) NO.1361 OF 2007 Akhlaque Ahmad (written as Akhlak Ahmad in the order) son of Md. Zubair Khan, resident of Ghushian, P.O. Ghusian, P.S. Bikramganj, District Rohtas ….. Appellant VERSUS State of Bihar ….. Respondent (In all the Appeals) ------ Appeals against the judgment and order of conviction dated 1.10.2007/ 3.10.2007 passed by Additional Sessions Judge I, Patna in Sessions Trial No.115 of 1996 ------ 3 For the Reference : M/s Shymeshwar Dayal, Mukeshwar Dayal and the State Shiwesh Chandra Mishra, Abhimanyu Sharma, Ashwani Kumar Sinha, Dilip Kumar Sinha and Rajendra Nath Jha, APPs. For the Appellants : M/s Surendra Singh, Kanhaiya Prasad Singh, Ganesh Prasad Singh, Senior Advocates, Akhileshwar Prasad Singh, Ajay Kumar Thakur, P.N.Shahi, Sumant Singh, Ashutosh Kumar, C.M.Jha, Ram Vinay Singh Ravindra Nath Dubey, S. Parasmani, Ashok Kumar and Mukesh Kumar, Advocates For Intervener : M/s Rakesh Kumar and Prabhu Narayan Sharma, Advocates. ------ P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE SYED MD. MAHFOOZ ALAM Shiva Kirti Singh,J. The Death Reference under consideration and the connected seven Criminal Appeals arise out of Muzaffarpur Sadar P.S. Case No.216 of 1994 dated 5.12.1994 corresponding to G.R. Case No.2660/94 which led to joint trial of 36 accused persons for the offence under Sections 147, 302/149, 307/149, 427, 302/109 and 302/114 of the Indian Penal Code (hereinafter referred to as IPC). By the judgment and order dated 1st October, 2007 passed in Sessions Trial No.115/1996 by learned Additional Sessions Judge-1, Patna, seven appellants have been convicted for various offences 4 leading to infliction of death penalty to three accused namely, Anand Mohan, Professor Arun Kumar Singh and Akhlak Ahmad for the offences under Section 302/149 and 302/109. They have also been awarded R.I. for five years under Section 307/149, R.I. for one year under Section 427/149 and R.I. for 1 year under Section 147 of the IPC. Accused, Lovely Anand, a lady has been similarly convicted but for the offence for which death sentence has been awarded to the aforesaid three accused, she has been awarded life imprisonment and a fine of Rs.25,000/- and in default thereof simple imprisonment for two years. The remaining three accused have also been held guilty of all the offences except offence under Section 302/109 IPC and have been awarded similar sentence as awarded to accused, Lovely Anand. The remaining 29 accused have been acquitted of all the charges. The Death Reference and connected appeals have been heard together and shall be governed by this common judgment. 2. The informant of this case is Mohan Rajak, Deputy Superintendent of Police (East), Muzaffarpur (PW-14). His typed report running into four pages has been made the basis of First Information Report lodged on 5.12.1994 at 22:10 P.M. for an occurrence which allegedly took place on the same day at about 16- 15 P.M. The place of occurrence is village, Khabra situated on 5 National Highway-28 at a distance of about three kilometers east of the Police Station. From the FIR it transpires that on 4.12.1994 in the night hours one, Kaushalendra Kumar Shukla @ Chhotan Shukla said to be a criminal and his associates were murdered by some unknown persons on NH-28 under Brahampur P.S. of Muzaffarpur district. Their autopsy was conducted on 5.12.1994 at Srikrishna Medical College Hospital, Muzaffarpur. On hearing the news of said murders the supporters of Chhotan Shukla and of Bihar People’s Party gathered at the hospital in large number. They were agitated. Apprehending breach of law and order, Sub Divisional Officer (East), Tara Rajak-(PW-12), Sub Divisional Officer (West),B.P. Singh, (PW-13), Executive Magistrate, M.o. Siddiqui, Inspector- cum-Incharge, Mithanpura, B.D.Nigam-(PW-6), Officer Incharge, Ahiyapur, N.P. Dev (PW-9), Sub Inspector, Gaya Prasad Chaubey of Ahiyapur P.S-(PW-5), Sub Inspector, K.N. Chaudhary, Officer Incharge, Sadar P.S.(PW-7), ASI, S.N.Singh, Sub Inspector, Ravindra Sharma of Mithanpura P.S.(PW-3), Sub Inspector, Raja Ram of Town PS (PW-10), Inspector Sadar “B” J.P. Narain (PW-8) along with armed police force and lathi force were present at the hospital. After autopsy the dead bodies were taken from the hospital at about 11:30 A.M. to the house of Chhotan Shukla and they were escorted by the aforesaid police officials. The procession was 6 agitated and was led by appellant, Arun Kumar Singh, Ramesh Thakur, appellant, Shashi Shekhar Thakur, Ram Babu Singh, appellant, Harendra Kumar, appellant, Vijay Kumar Shukla @ Munna Shukla and others. Some slogans were raised in the way against the administration. At the residence of Chhotan Shukla floral tributes were paid to the dead persons present there along with appellant, Anand Mohan,a Member of Legislative Assembly, Lovely Anand, a Member of Parliament. At about 3:30 P.M. the procession started for the ancestral home of Chhotan Shukla in village, Jalalpur, P.S. Lalganj. District, Vaishali along with his and another dead body. There were about five thousand persons in the said processions which allegedly included some criminal elements also. The procession passed through some places in the town and reached Bhagwanpur Chowk where it was stopped for some time. That procession was led by appellants, Anand Mohan and Lovely Anand who were in their white coloured Contessa car and by appellants, Arun Kumar Singh, a former Member of Legislative Assembly, Akhlak Ahmad, a former Member of Legislative Assembly, the appellant, Harendra Kumar, Rameshwar Wiplavi and others. Various types of vehicles such as Buses, Maxi, 407 Tata vehicle, Jeep, Car, Maruti, Motocycle/Scooter were in the procession along with own buses and vehicles of Chhotan Shukla 7 and all his relations. Anand Mohan and Lovely Anand were sitting in their car bearing No.WB-16-8253. There were some unnumbered vehicles also. Lovely Anand, Akhlak Ahmad, Professor Arun Kumar Singh and Anand Mohan exhorted the crowd to take revenge for the murder and if administration would come in the way then it should also be taught a lesson and there should be a “Holi” of blood in the whole of Bihar. After such inflammatory slogans the procession which consisted of a large number of persons slowly proceeded on the National Highway towards Ramdayalu Nagar. Along with the procession, besides the earlier named officials, Sub Inspector, K.D. Singh, Officer Incharge, Kazimohammadpur (PW- 11), Inspector, B.P. Chaudhary of Kazimohammadpur, Sub Inspector, Ramchandra Prasad of Sadar PS (PW-1), Sub Inspector, Amarnath Prasad of Kazimohammadpur(PW-4) and others also proceeded along with armed forces and lathi forces. Along with the informant and Sub Divisional Officer (East) and (West) also there ware armed forces of 2 to 6 and a lathi force of 34. 3. It is further case of the informant in his typed report that in front of the procession were Sri B.D. Nigam and armed forces whereas other officials and forces were at the end of the procession with a view to escort the same and in this manner the procession started for Lalganj. At about 4:15 P.M. when it reached 8 Khabra village on the National Highway then from the middle part of the procession noise and exhortation for assault was heard. The informant and other officials ran to that place and saw that on the right flank of the road a white coloured Ambassador car bearing No.777 was overturned. The car had a plate scripted D.M. Gopalganj. A man was lying on the ground in injured condition. The informant saw appellants, Anand Mohan,Lovely Anand, Professor Arun Kumar Singh and some others repeatedly asking one Bhutkun to kill because the person was a D.M. belonging to administration. On this the crowd became aggressive and a fair complexioned, tall and slim person aged about 25-26 years took out a revolver from his waist and after firing shots melted in the crowd. As a result the person who was lying near the Ambassador car was seriously injured. The Officer Incharge of Kazimohammadpur PS (PW-11) disclosed to the informant that the assailant was Bhutkun Shukla. Due to gravity of the situation the Sub Divisional Officer (East) ordered for lathi charge. On account of such lathi charge there was commotion all around. Some persons received injuries and started running in different directions. Amongst the assailants he claimed to identify Pramod Sharma, Om Prakash, Vijay Prasad Singh, appellant, Harendra Kumar, Lalan Sharma, Appellant, Shashi Shekhar Thakur, Dhirendra Mishra, Rakesh Kumar @ Pappu, 9 Rambabu Singh, Niranjan Prasad, appellant, Vijay Kumar Shukla @ Munna Shukla, Arun Kumar and Ranjeet Kumar. Police Inspector,B.P. Chaudhary of Kazimohammadpur also claimed to identify several persons including appellants, Harendra Kumar, Vijay Kumar Singh @ Munna Shukla, Anand Mohan, Lovely Anand and Professor Arun Kumar Singh. The Officer Incharge, Sadar PS (PW-7) also claimed to identify several persons including appellants, Shashi Shekhar Singh, Akhlak Ahmad, Anand Mohan, Lovely Anand, Vijay Kumar Shukla @ Munna Shukla. Police Inspector, J.P. Narain also claimed to identify several persons including some of the appellants. He also claimed to have heard appellants, Anand Mohan, Lovely Anand and Professor Arun Kumar Singh exhorting the crowd and asking Bhutkun Shukla to assault on which Bhutkun fired thrice on the injured person who was later found to be D.M. of Gopalganj. The other officials also claimed to identify many persons. 4. It is further alleged in the FIR that after assault the assailants boarded various vehicles and went away speedily towards Hajipur. Near the car there were two other persons who disclosed that the injured who was lying unconscious was D.M. of Gopalganj. They disclosed that D.M. had attended meeting at Hajipur and while returning when they were passing at the place of occurrence, some 10 members of the procession on seeing their car raised slogans to assault and started throwing brickbats. They claimed to have heard some persons in the crowd exhorting Bhutkun to assault on which a young person of 25-26 years took out a weapon from his waist and fired thrice on the head of the D.M. and thereafter disappeared in the crowd. They also disclosed that they came to know from the crowd that the name of the assailant was Bhutkun Shukla. The informant carried the injured D.M. on his Gypsy to S.K.Medical College and Hospital for treatment, along with Officer Incharge, Ahiyapur (PW- 9),ASI, Raja Ram (PW-10) and some others. The information of the occurrence was given by the informant immediately through wireless to the District Headquarters and Superior Officers. Information was also given to the District Administration, Vaishali on wireless that the processionists had shot the D.M., Gopalganj and ware fleeing towards Hajipur on different vehicles. The informant boarded the vehicle of Sub Divisional Officer (East) and along with other officers and police force chased the processionists. In the way near a village Chandrahatti they saw some miscreants getting down from an Ambassdor car and running away. Seven persons were caught after chase. They had injuries on their persons. They included appellant, Professor Arun Kumar Singh also. When the informant in course of chase reached Hajipur then he learnt that 11 Vaishali police had already apprehended 15 persons with their vehicles. Appellants, Anand Mohan and Lovely Anand were amongst them. Some of those 15 also had injuries on their persons which appeared to be due to lathi charge at village Khabra. Those 15 persons allegedly admitted that they were in the funeral procession and when it had reached Khabra, D.M.,Gopalganj was assaulted and thereafter they were returning to Patna. Those 15 persons included appellants, Anand Mohan, Lovely Anand and Akhlak Ahmad and a bodyguard of Anand Mohan, MLA. He returned to Muzaffarpur Sadar PS along with arrested persons and three seized vehicles. There he learnt that the D.M.,Gopalganj, Sri G.Krishnayya had died in course of treatment in the hospital. It was claimed that all the 28 named persons in the FIR and 50-60 unknown persons had by forming an unlawful assembly and by delivering inflammatory speech had instigated people to indulge in assault and brick batting which caused damage to the car of the D.M. and death of the D.M. on account of firing. The signature of the informant on the typed report has been marked as Exhibit-6 and the formal FIR has been marked as Exhibit-3. 5. According to the prosecution, besides the District Magistrate, Gopalganj who died due to assault, in the same occurrence murderous attack was made upon three other persons, 12 namely, Deepak Kumar, Driver(PW-17), T.M.Hembram, Bodyguard of the D.M.(PW-21) and P.L.Tangri, a Photographer said to be traveling in the same car with the deceased District Magistrate. He has not been examined as a witness although out of three alleged injured only his injury report has been brought on record through Dr.Nagendra Pd.Sinha (Pw-23). PW-25, Chandrika Prasad Kiran was posted as additional Superintendent of Police, Mazaffarpur at the relevant time. He has claimed to have investigated this case as the first I.O. upon orders to that effect by S.P.,Muzaffarpur. He claims to have recorded further statement of the informant on 6.12.1994 at 1:00 A.M. and thereafter along with informant he inspected the place of occurrence with the help of torch and petromax. The village, Khabra where the occurrence took place was found to be four kilometers from zero mile Muzaffarpur. The road (NH) at that place goes from North to South but is slightly inclined towards the East to West at the actual place of occurrence. The pitched road had a width of about 23 feet with 8 feet of kuchha flank on both sides. The car of D.M.,Gopalganj bearing No.BHQ-777 was coming from south to north i.e. from Hajipur to Muzaffarpur. He found that the vehicle had been subjected to assault since about 111 feet from the actual place of occurrence. The assault was near an electric pole on the western side of kuchha flank. From that place to 13 the place where the car was found overturned was littered with broken glass pieces of the same car which was found overturned on its left side on the western kuchha flank heading towards north. Both the wheels of the right side were up in the air. At the place of occurrence broken glass pieces and broken VIP light glass and bulbs were found scattered. The wind screen both front and rear as well as looking glass on the front body were found broken. Many items fitted inside the case were also found in broken condition including glass items on the dashboard. The upper portion of rear dickey was found dented. Some papers and other articles of the District Magistrate were found on the rear seat. The bunch of keys of the car was found at a distance of 10 feet towards west in bushes. A wrist watch with some blood and one of the straps broken and spectacles with golden frame were found near the car. Some other articles such as broken thermos and tiffin-carrier were also found there. 14 feet North-East of the car, 6 feet from the pitched road on the western kuchha flank large quantity of blood mark was found. At that place two broken blood stained teeth were also found. That was the spot where the D.M. was found in injured condition and from where he had been sent to the hospital. At a distance of 76 feet West from the car was Southern corner of a wall of a factory. About 31 feet south of that place and 15 feet north of a mango tree was place where 14 some blood spots were found along with brick having blood marks. In the near vicinity brick pieces were found at various places showing brick batting at that place. This witness had prepared a sketch map of the place of occurrence on page 5 of the case diary which he has proved as Exhibit-11. He has also proved seizure list of articles found at the place of occurrence as Exhibit-12. 6. He has admitted that in the relevant column of the FIR the name of (PW-24) Dhiraj Kumar is shown as the Investigating Officer and to him this witness claims to have handed over the investigation at about 8:15 A.M. of 6.12.1994. 7. Dhiraj Kumar (PW-24) is the second Investigating Officer of this case who at the relevant time was posted as DSP, Muzaffarpur Town. After taking charge of investigation from PW- 25, he claims to have recorded the statement of witnesses as well as of several accused persons including appellants, Anand Mohan, Lovely Anand and Akhlak Ahmad who were sent to Chief Judicial Magistrate, Muzaffarpur on 6.12.1994 for the purpose of remand. After completing investigation he submitted charge sheet on 31.1.1995. In the charge sheet accused, Bhutkun Shukla and Dhirendra Mishra were shown as absconders but later accused, Birendra Mishra appeared in the case and faced trial. In respect of Bhutkun Shukla a report was submitted by the police that he was 15 killed on 16.2.1997 for which Lalganj PS Case No.100/97 had been instituted. 8. After cognizance and supply of police papers the case was committed to the court of sessions on 24.2.1996. One accused, Munna Kapar absconded and hence his case was split up and the remaining accused persons including the appellants were put on trial because they pleaded not guilty to the charges. During trial one accused, Rameshwar Biplavi died and out of remaining 36 persons 29 were acquitted and the 7 appellants were convicted and sentenced by the judgment and order under appeal, as already noticed. 9. In order to prove the charges, the prosecution has examined altogether 25 witnesses. Out of them PW-1 to 11 namely, Ramchandra Prasad, Jeevan Bhengra, Ravindra Sharma, Amarnath Prasad, Gaya Prasad Chaubey, B.D. Nigam, Kaushalya Nand Choudhary, Jai Prakash Narain, Nagendra Prasad Deo, Raja Ram and Kumar Devendra Singh are all police officials who have claimed to be with or behind the procession till the occurrence. PW- 12, Tara Rajak, SDO, Sadar (East) and PW-13, Basudeo Prasad Singh, SDO, Sadar(West) have also claimed to be present along with the police officials behind the procession till the occurrence. PW-14, Mohan Rajak, DSP, as noticed earlier is the informant of 16 this case. PW-15, Dr. Naresh Kumar, PW-16, Dr.Mumtaz Ahmad and PW-23, Dr. Nagendra Prasad Sinha have proved injury reports and postmortem report. PW-15 has proved injury reports of accused Satyendra Kumar, Akhlak Ahmad, Rameshwar Biplavi, Ramesh Thakur and Prakash Chandragupta as Exhibits-7 to 7/5. PW-16 has proved the postmortem report of deceased G. Krishnayya, D.M., Gopalganj as Exhibit-8 and PW-23 has proved the injury report of Sri P.L. Tangri, the photographer traveling with the deceased, as Exhibit-7/6. 10. Deepak Kumar, PW-17 is the driver of the car of the D.M. He and PW-21, D.N. Hembram, a Security Guard of the deceased, D.M. are also eyewitnesses of the occurrence. Pw-18, Umesh Kumar Sinha was Incharge, Director of Forensic Science Laboratory, Patna. He has claimed that along with a team of finger print experts etc he went to the place of occurrence on 8.12.1994 and collected blood stained earth and broken pieces of glass from the place of occurrence. They also collected broken pieces of glass of the concerned car from Sadar PS and after marking those articles he gave it to the Investigating Officer, Dhiraj Kumar, DSP. A document was prepared to that effect which he has proved as Exhibit-9. According to him the blood stained earth was collected from near a mango tree. PW-19, Jawahar Pd.Singh was an employee 17 of Forensic Science Laboratory, Patna. He was also a member of the team along with PW-18. He has proved his signature on Exhibit-9. 11. PW-20, Awadhesh Mishra was an Executive Magistrate and in that capacity he had accompanied the proecession. He is a civil official and in the same category as PWs-12 and 13. It has already been noticed that PW-21, D.N. Hembram was Security Guard of the deceased D.M. and like the driver PW-17 he was traveling in the same car at the time of occurrence. PW-22, Gupteshwar Singh was posted as Assistant Sub Inspector in Muzaffarpur District at the time of occurrence. He also participated in the investigation of the case from 14.12.1994 to 16.12.1994. He has deposed that a requisition was sent by him to the treating physician at Sadar Hospital, Muzaffarpur for the injury report of P.M. Tangri, Photographer. He has proved the said requisition as Exhibit-1/6. It has already been noticed that PW-24, Dhiraj Kumar, DSP is the second Investigating Officer and PW-25, Chandrika Prasad Kiran investigated the case for few hours as Additional S.P., Muzaffarpur and gave charge of investigation to PW-24. 12. The defence of the accused persons including the appellants is denial of their involvement in the murder and also of false implications on account of political rivalry. Besides bringing on record a large number of documents-Exhibit-A to A/11, Exhibit- 18 B to B/25, Exhibit-C and C/19 the defence has also examined 12 witnesses on the point of alibi of appellants Anand Mohan, Lovely Anand and Akhlak Ahmad. However, during arguments before this Court the plea of alibi was not pressed and therefore the defence witnesses are not relevant. However, some of the documents exhibited on behalf of the defence were strongly relied upon, particularly to support the submission that the FIR has been ante dated and ante time and the earliest version of the occurrence has been suppressed. However, these documents shall be considered at later and appropriate stage. 13. Before proceeding to examine the submissions advanced on behalf of the appellants and analyzing the relevant evidence in the light of submissions of the parties, it is useful to keep in mind that the defence has not made any serious challenge to the time and place of occurrence. Damage to the car of the deceased and his death in the occurrence is also not in dispute. However, the defence has seriously challenged the presence of such a large number of police witnesses at the place of occurrence, the truthfulness and time of the FIR and the manner of the alleged occurrence. According to the defence the unfortunate occurrence was committed by unknown persons, mainly by the way side crowd which had gathered on the western flank of the road in Kabra village 19 and not by processionists who had left Bhagwanpur Chowk in Muzaffarpur on vehicles which were speeding away towards Lalganj so that cremation of the dead bodies could be held without delay. The submission on behalf of the appellants is that in order to cross the stretch of road over which procession was going by vehicles, admittedly the driver of the deceased DM did not stop and moved on his left flank of the road; thereafter some occurrence took place which enraged the people who had gathered on the western flank at village, Khabra, leading to brickbat and assault. According to defence