Patna High Court
The State And Etc. vs Hari Narayan Mahto And Ors. on 29 February, 2000
Equivalent citations: 2000CRILJ5009
Author: Bisheshwar Prasad Singh
Bench: Bisheshwar Prasad Singh, D.P.S. Choudhary
JUDGMENT Bisheshwar Prasad Singh, J.
1. The two appeals before us and the Death Reference arise out of a common judgment and order of the 2nd Addl. Sessions Judge, Nalanda dated 11th August, 1998 in Sessions Trial No. 507 of 1996/33 of 1997, 12 persons were variously charged of offences under Sections 302, 302/34, IPC and Section 27 of the Arms Act. The trial Court recorded a finding that the prosecution had failed to prove its case against 8 of the accused persons who were put up for trial, and consequently recorded an order of acquittal in their favour. It however found that the prosecution had established its case beyond reasonable doubt against the remaining four accused who are the appellants in the two appeals before us. Appellants Hari Sarain Mahto, Deoki Mahto and Lakhan Mahto, appellants in Criminal Appeal No. 392 of 1998, have been found guilty of the offence under Section 302, IPC and all of them have been sentenced to death. Appellant Subodh Kumar, the sole appellant in Criminal Appeal No. 420 of 1998, has been found guilty of the offence under Sections 302/34, IPC and sentenced to rigorous imprisonment for life. Though found guilty of the offence under Section 27 of the Arms Act, the trial Court did not pass any separate sentence on that count. The trial court has made a reference to this Court being Death Reference No. 9 of 1998 for confirmation of the death sentence passed against the appellants in Criminal Appeal No. 392 of 1998.
2. The prosecution case is that a dastardly crime was committed in village Bishunpur lying within the jurisdiction of Chandi police station 4 k.m. away on the night intervening the 10th and 11th November, 1995 at about 1 a.m. It is alleged that the appellants as well as other accused, since acquitted, entered the house of the informant P. W. 5 Shankar and shot dead his mother Bedamia Devi, his son Jitendra Kumar and his niece Gayatri Kumari. The informant Shankar, P.W. 5 had hid himself on the Machan in the same room in which his mother and son were sleeping, and therefore escaped the wrath of the appellants. The Investigating Officer, P.W. 7 on coming to know about the occurrence at about 3 a.m. came to the place of occurrence and reached the house of Shankar at about 4.15 a.m. He recorded the fardbeyan of Shankar (Ext-1) at 4.30 a.m., and thereafter took up investigation of the case. A formal first information report was drawn up at the police station at 9 a.m. on the same day.
3. In his fardbeyan, the informant, P.W. 5 stated that he was sleeping in his house along with his mother, son and niece. His son Jitendra Kumar, (deceased) and mother Bedamia Devi, (deceased) were sleeping on the same cot in the room while his niece Gayatri Kumari, (deceased) was sleeping on another cot. The informant was also sleeping in the same room. At about 1 O' Clock in the night he woke up and came outside to urinate. He saw that about 15-16 persons armed with weapons were coming towards his house. He immediately rushed inside his Court yard and he could make out from the conversation of those persons in the lane that they were searching for him. Apprehending danger, he went inside the room and hid himself on the Machan inside the room where a heap of husk was kept. He saw that all those persons entered his Courtyard and started searching for him. His mother told them that he (the informant) was not at home. The four appellants herein were carrying rifles in their hands. Appellant Hari Narain Prasad ordered his companions to eliminate the entire family even if the informant was not available. Saying so, he shot at his niece Gayatri Kumari causing injuries to her. Appellant Lakhan Mahto fired at his son Jitendra, who was aged about 12 years, and Deoki Mahto shot at his mother. The remaining persons who were also armed with rifles and guns started firing indiscriminately as a result of which two kids tied in the house, were also injured. Thereafter, appellant Hari Narain Prasad said that the job was done and they should go. Thereafter they all went towards the village.
After coming down from Machan, the informant found his mother and son dead. He found that his niece Gayatri had suffered fire arm injuries on her neck. On hearing the report of gun shot and his cries, his neighbours Ram Nandan Ram (not examined) and Satya Narain Yadav, P.W. 3, reached there immediately. At that time, his niece Gayatri was speaking, though she was injured, and saying that appellant Hari Narain Prasad had shot her. The informant claimed to have identified all the accused persons since she had seen them in the light of lantern. Thereafter Ram Bhajan, P.W. 4, Sadhu P.W. 2., Balram Gope P.W. 1 and other villagers also came to his house and those persons had also seen the accused persons returning home in moon light. The villagers took away Gayatri Kumari to Chandi hospital for treatment.
It was stated by the informant that in the last assembly election they had cast their votes against the wishes of the accused persons on account of which they had set fire to the house of the poor people and had also committed assault, in respect of which cases were registered at the police station and they were still pending. He was the informant in one of those cases.
4. Satya Narain Prasad, P.W. 3 and Sheo Kumar Gope (not examined) are the two persons who are said to have put their signatures as witnesses on the fardbeyan recorded at 4.30 a.m. On the basis of the aforesaid fardbeyan, the Investigating officer, P.W. 7 took up investigation and recorded the statement of witnesses. After investigation, the appellants and the 8 other accused were put up for trial before the 2nd Addl. Sessions Judge, Nalanda.
5. At the trial the prosecution examined eight witnesses, whereas the defence also examined three witnesses in defence. The appellants pleaded not guilty and were tried by the 2nd Addl. Sessions Judge, Nalanda. There is really only one solitary eye-witness to the occurrence, namely, the informant Shankar Gope, P.W. 5. Four witnesses, namely, Balram Yadav, P.W. 1 Sadhu Gope, P.W. 2., Satya Narain Yadav, P.W. 3 and Ram Bhajan Ram P.W. 4 claimed to have seen the appellants and others returning after the occurrence. They also claimed to have come to the house of the informant and the occurrence was narrated by the informant, P.W. 5 to them. Dr. Mathura Prasad P.W. 6 performed the post-mortem examination on the dead bodies of the deceased, while P.W. 7 Ashok Kumar is the Investigating Officer of the case. P.W. 8 Dr. Prem Kumar Das a veterinary doctor of Chandi Block had examined the two kids injured in the occurrence.
6. The testimony of Dr. Mathura Prasad, P.W. 6, leaves no room for doubt that the three deceased met homicidal deaths. Dr. Mathura Prasad deposed that he was posted at the Sadar hospital, Biharsharif on 11-11-1995 and performed the post-mortem examination on the dead bodies of the deceased between 2.40 and 3.40 p.m. on 11-11-1995.
On the dead body of Jitendra Kumar aged about 12 years, he found the following ante-mortem injuries.
(i) Elliptical lacerated wound of one inch diameter near lower jaw towards the right side. Margin of the wound sinzed and black. White particles of the gunpowder (found) on the skin all around in the circle of two inches to three inches. Entry wound was found.
(2) Lacerated wound of 3" x 3" on the back portion of the head the skull of the same portion blown up. Only small portion of the brain left in the skull. Major portion of the brain is missing. This wound is on the back-portion of the head slightly towards the right side instead of the left side. Both the wounds are in continuation. The injury number one is entry wound and number two is exit wound. Both the injuries are ante-mortem. The viscera of the body is slightly congested. Semi-digested food in the stomach. Some amount of urine in the blader. Cause of death - The above stated injury. Instant death.
On the dead body of Gayatri Kumari, he found the following injuries.
Rigor mortis found in all the four limbs. The following ante-mortem injury caused by fire arms, were found on her person.
(i) Lacerated wound on the back-portion of the right arm-pit, entry wound of 1/2" diameter. Margin of the wound sinzed and black. Round about half-burnt particles of gunpowder (were found).
(ii) Lacerated wound of 1/2" diameter on the middle portion of the right shoulder joint, near the shoulder, (exit wound).
(iii) Lacerated wound of 1/2" diameter on the right side of the neck, inverted wound.
Injury numbers (i) and (ii) are in continuation, spinal column of the neck, larynx, trachea and oesophagus severely damaged. Spinal chord severely contused. The cartridge could not be extracted from the neck-injury. For extracting the cartridge, it was essential to sever the neck and to separate it from the body, but considering the sentiments of the relatives of the deceased, the same (separating the neck from the body) was not done. The injury No. (i) is entry wound and the injury No. (ii) is exit wound. The injury No. (iii) appears to have been caused with separate cartridge. The injury No. (iii) might have been caused with the same cartridge which has caused injury No. (i) and injury No. (ii) if the hands (sic) nocre folded towards the back. The cause of death-above stated injury.
On the dead body of Bedamia Devi, he found the following ante-mortem injuries.
Rigor mortis present on all the organs (of the body), a severe ante-mortem fire arm injury of 4" x 3" x 1" size on the face, the remaining portion of the left check black and sinzed. Lacerated wound. Both the upper and lower jaws severely contused, one tooth with the upper jaw and two teeth with the lower jaw in the taction tongue severely lacerated, blood-clotting in the neck, blood clotting in the larynx and trachea, some portion of nose lacerated, all the internal organs congested; semi digested food in the stomach, some amount of urine in the bladder; brain also congested; cause of death; the above stated fire arm injury. Death occurred due to passing the blood into the trachea and due to shock caused by the wound; Time since death; within 3 hours to 48 hours. The above stated injury was sufficient for death in a normal condition.
7. It may be noticed at the threshold that in the opinion of the doctor, the injuries suffered by Gayatri Kumari were such that they would have caused instantaneous death. In any event, the injuries were such that after suffering such injuries, one could not speak.
8. The injuries found on the three deceased therefore conclusively establish that all of them died a homicidal death on account of injuries caused by fire arms and such injuries could be caused in the course of the occurrence in question, since in the opinion of the doctor, time that elapsed since death was between 3 to 48 hours.
9. From the evidence on record, it appears that village Bishunpur is divided into two parts by a river known as 'Chiria river' which flows from north to south. The major part of the village is situated on the western side of the river, but large number of houses have come up on the eastern side of the river as well. The house of the informant where this occurrence is said to have taken place is located on the eastern bank of the river towards the southern end of the village. It also appears from the record that in the western part of the village, there is a road running from north to south by the side of the river. This road leads from south to north and in the northern part of the village there is a bridge over the river which connects the eastern part of the village with the western part of the village. The prosecution case appears to be that after committing the crime the appellants and their companions came out of the house of the informant and proceeded north whereafter they crossed the river by going over the bridge and came to the western part of the village. They then took the road on the western part of the village and moved south along that road. Three of the witnesses had seen them when they were moving on this road from north to south.
10. It also appears from the evidence of the informant P.W. 5 and the Investigating Officer, P.W. 7 that the house of the informant is on the eastern bank of the river Chiria facing east. There is a trick wall towards the east which has an entrance without a door. There is a lane running north to south adjacent east to the house of the informant. Upon entering the house of the informant, there is a court yard. Towards the north and south of the courtyard, there are two thatched small rooms facing south and north respectively. Towards the west of the Court yard there is a room with tiled roof with a covered varandah to its south. The door of the room opens in the covered varandah, and in the covered varandah there is a door towards the east leading to the court yard. According to the prosecution, the deceased as well as the informant were sleeping in the room and varandah which are to the west of the court yard. In the small thatched room located to the south of the courtyard, the two kids were tethered who were also injured in the course of the incident. The room towards the west with a tiled roof has also a machan on which husk and straw etc. are stored. According to P.W. 5, the said machan was at a level 3 feet higher than the door, and 2 feet above the machan was the roof of the house. The machan was at a distance of about 3 feet from the door. Though the dimensions given by rustic villagers are not always reliable, it may still be worth noticing that according to the informant the two thatched rooms towards the north and south of the court yard were 10' x 5' while the room on the western side of the court yard was 15' x 5'. According to the informant his house is located on a plot of land measuring 32' x 40'. Unfortunately, the Investigating Officer did not depose about the size to these rooms as he had not measured them, but the impression that one gets from the description given by the informant is that the rooms were small sized rooms.
11. P.W. 1 Balram Yadav deposed that on the night of the occurrence at about 1 O' Clock he woke up on hearing the sound of gun firing. He came out of his house and saw 12 persons armed with guns. He identified them in moon light and named all the 12 accused who were put up for trial. On hearing the sound of crying, he went to the house of Shanker and found that the dead son of Shankar was in his lap while his mother was also lying dead on a cot. His niece Gayatri was writhing in pain and saying that Hari Narain (appellant) had shot her. He carried the female child (Gayatri) on a cot to Chandi hospital, but the doctor asked them to take her to Patna. While she was being taken to Patna on a tractor, she succumbed to her injuries near Chiria bridge. They, therefore, took her back to their village and put her at the same place from where she was lifted. According to this witnesss, Ram Bhajan, P.W. 4, his cousin Ram Nandan, Sadhu P.W. 2 and informant Shankar P.W. 5 also accompanied him to the Chandi hospital, Shankar P.W. 5 had told him that appellant Lakhan Mahto had killed his son while appellant Deoki Mahto had shot dead his mother. He was categoric in saying that Shankar had accompanied him because he made a specific statement in the course of his cross-examination that while taking the injured girl to the hospital, he had not talked to Shankar about the occurrence. He deposed that the village Bishunpur is divided by river Chiria and the village is situated on both sides of the river. The main village is on the western bank of the river while the new habitation has come up on the eastern bank of the river. Towards the extreme north of the village there is a bridge which connects the eastern and western habitation. There is a road on the western side of the river which goes from south to north along the river. This witness has given the location of the houses of different villagers from which it appears that the house of this witness is also located in the western part of the village. He has also deposed to the effect that Shankar P.W. 5 also has his ancestral home in the western part of the village across the river. His wife and children live in the old house which is located in the main village to the west of the river. According to this witness, he came out of his house and then came to the main road and there he was told by a villager that the gun shots have been fired in the house of the informant Shankar. That house was located on the eastern side of the river. According to this witness, the said house of Shankar Gope was at a distance of about 200 yards from his house. He further deposed that the house of Sadhu Gope, P.W. 2 would be at a distance of about 300 yards towards the south of the house of the informant and in the same direction was the house of P.W. 3 Satya Narain Yadav at a distance of about 150 yards. The house of P.W. 4 Ram Bhajan Ram was also at a distance of about 150 yards south of the house of the informant. According to this witness, the houses of these witnesses are on the eastern bank of the river.
This witness has further stated that informant Shankar Gope had two sons and three daughters, out of whom one son was killed in the occurrence. Shankar has four brothers who are all married and whose families live in the old house of Shankar which is on the western bank of the river.
In the course of his cross-examination, this witness further stated that he had heard sound of three gun shots being fired, and while he was coming out of his house he heard the sound of one more gun shot. He saw 12 persons on the bridge who were coming from the eastern direction. He did not talk to them nor did those accused persons see him. According to this witness, he was in a lane to the west of the bridge and from there he saw 12 persons who were variously armed with weapons. He was in the lane in which the house of Ganauri Tanti was situated and he saw the accused persons from distance of about 5 bans (40 feet approximately). He was the first to reach the house of Shanker. He also admitted that Chandi police station and the hospital are situated at the same place, but none of them went to the police station.
12. From the deposition of P.W. 1, it appears that his house is located on the western side of the river in the main village. On being awakened by the sound of gun shots, he came out of his house, took the main road leading towards the north and saw the 12 accused persons whom he identified near the bridge, which is in the northern extermity of the village. He thereafter went to the house of Shankar where he found the dead bodies of the informant's son and mother, and also saw his niece writing on the floor saying that Hari Narain had shot her. He accompanied the informant and other villagers who took Gayatri for treatment to the Chandi hospital, but the doctor asked them to take her to Patna. While she was being taken to Patna, she succumbed to her injuries near Chiria bridge and therefore they brought her back to her house. He also admits that the police station and the hospital at Chandi are at the same place, but no one went to the police station to report the matter.
13. The next witness is Sadhu Gope, P.W. 2. He also got up on hearing the report of gun fire. On coming out of his house, he saw the accused going towards Mahto toli. He identified all the 12 accused. On coming out of his house, he heard the sound of weeping coming from the house of Shankar and therefore he went to the house of Shankar. Shankar told him about the manner of occurrence. He found his niece groaning and saying that Hari Narain had shot her. Others had also come to the house of Shankar and while Gayatri was speaking, others were listening to her. This witness does not claim to have gone to the Chandi hospital along with other villagers. He admitted that his house is on the western bank of the river and situated in the southern part of the village. In the extreme south of the village are the houses of Prahlad and Badan Tanti and to the north of their house intervened by 10-12 house is his house. The bridge over the river Chiria is at a distance of about 400 yards from his house. He had seen the accused coming from the east.
It would thus appear that even this witness has his house on the western bank of the river and this witness as well had seen the accused moving in a group on the main road which runs along the river on its western bank. The place where this witness appears to have seen the accused is different from the place where P.W. 1 had seen them, because it appears that this witness had seen them near his house on the road, which means that the accused persons had travelled further south when this witness saw them.
14. P.W. 3 Satya Narain Yadav also claims that on hearing the sound of gun shots, he came out of his house and saw 12 persons fleeing with arms and ammunition. He saw them in moon light and identified all of them. On hearing the sound of weeping coming from the house of the informant, he went to his house along with Ram Nandan (not examined). Shankar narrated the occurrence to them naming all the 12 accused persons whom he had identified. Gayatri was then alive and she was naming Hari Narain as her assailant.
This witness also claims to have gone with the villagers to Chandi hospital where the villagers took Gayatri for treatment. According to this witness, the doctor had asked them to take the girl to Patna and he had also given them a paper which got misplaced. Since Gayatri succumbed to her injuries, she was brought back to the house of Shankar and kept there. She was alive when she reached the hospital as she was asking for water, but thereafter died when she was being taken to Patna. According to this witness, half an hour after they reached the house of Shankar with the dead body of Gayatri, the police came. The fardbeyan of shankar was recorded in his presence as also in the presence of Shiv Kumar (not examined). The Investigating Officer prepared the inquest reports in his presence. It appears that the house of this witness also is located on the western bank of the river since he stated that he had seen the accused persons going towards south. He further stated that near the house of Shankar was a house of a person who was A.S.I. (Jail) and adjacent to his house are the two houses of his two sons.
15. P.W. 4 Ram Bhajan Ram also stated that he woke up on hearing the report of gun fire and came out in the lane. He saw the 12 accused persons coming out of the house of Shankar and proceeding towards the north. They were all armed. When he went inside the house of Shankar, he found that Gayatri was screaming and naming Hari Narain as her assailant. Shankar narrated to him the matter in which the occurrence took place ascribing specific roles to the appellants. He also claims to have accompanied the informant and other villagers to the Chandi hospital for the treatment of Gayatri, but the doctor advised them to take her to Patna. While she was being taken to Patna, she died and therefore, she was brought back to the house of Shankar. This witness has made one significant statement. He stated that when they went to Chandi hospital, Ramnandan, who accompanied them, and who has not been examined, went to the police station and reported the matter and had disclosed the names of the assailants. He also stated that Chandi hospital and the police station are situated side by side. This witness claims that his house is situated on the eastern bank of the river and the house of Shankar was at a distance of 100 to 125 yards from his house. Shankar had also an ancestral home in the main village which is on the western bank of the river.
16. P.W. 5 Shankar is the informant. He deposed that he woke up at about 1 O'clock in the night to urinate. When he came out of his house in the lane he saw 15-16 persons coming towards his house armed with guns and rifles. He immediately entered his Court yard and from there he could hear the conversation in the lane from which he made out that they were searching for him. He then entered the room and hid himself on the machan. He identified all the accused persons who also entered his house after him. The four appellants in these two appeals were the persons who entered the room. Hari Narain ordered his companions to eliminate his entire family whereafter he fired from his rifle causing injuries to his niece. Deoki Mahto and Lakhan Mahto fired at his mother and his son Jitendra Kumar killing them instantaneously. Thereafter they all went away. When he came down from the Machan he found that his mother and son were dead while Gayatri was shouting that appellant Hari Narain had fired at her. This witness claims to have witnessed the occurrence in the light of a lantern which was hanging in the room. Soon after the occurrence several villagers came and he told them about the occurrence. Gayatri also told them that Hari Narain had fired at her. Sheo Kumar, not examined, Satya Narain, P.W. 3, Ram Bhajan, P.W. 4, etc took Gayatri to the hospital. The doctor referred Gayatri to Patna, but she died at Chirai bridge. The occurrence took place as a result of election to the legislative assembly. The accused persons had earlier raided his house to commit his murder, even before this occurrence, and he had filed a case against them which was pending before the Court. When the police came, this witness gave his fardbeyan which was recorded in the presence of Sheo Kumar and Satya narain, P.W. 3.
In cross-examination, the informant admitted that the members of his family reside in the family house which is on the western bank of the river. Food is cooked in the family house on the western bank of the river, but cooked food is brought to the house on the eastern bank of the river where the occurrence took place. He described his house and the location of the rooms, which I have noticed earlier. According to this witness, he had brought dinner for his mother, son and niece and after taking dinner, utensils had been kept in the room. Thereafter they all went to sleep. His mother and son slept on a cot in the room while his niece slept on a cot placed near the door of that room. He himself slept in the cot placed in the varandah. The first part of the night was dark, but it had not rained, though there was some rain in the day time.
He stated that when he went outside to urinate he saw that the accused persons were entering his lane from the northern direction. According to this witness, the distance of the bridge from his house is 4 yards only, and he denied the suggestion that the bridge was at a distance of about 500 yards from his house. He was emphatic in stating that when he saw the accused persons first they were on the bridge and he was at his darwaja. When he saw them on the bridge, he could not recognise them, but out of fear he came inside and hid himself. He had heard the accused persons talking among themselves in the lane and he guessed that they were searching for him. He recognised the accused persons when they all entered the Court yard. At that time he was hiding himself on the machan. Only the four appellants had entered the room while the others were present in the varandah. The machan was 3 feet higher than the door, and the roof was 2 feet higher than the machan. The Machan was 10 feet in width and 10 feet in length and was at a distance of 8 feet from the darwaja of the room. He climbed the machan and hid himself in the husk which was stored there. He concealed himself in such a way that no one could see him. He was lying on his belly in the mound of chaff on the Machan.
17. According to the informant, the accused persons stayed in the house for about 20 minutes. The villagers came to his house half an hour after the accused persons had left his house. He denied having gone to Chandi hospital. This witness has also deposed about the rival groups in the village which were divided on caste line and political affiliation etc. The accused belonged to the rival group. He denied the suggestion that he had started harassing the people belonging to other castes in connivance with the police.
18. Ashok Kumar P.W. 7 is the Investigating Officer of the case. He deposed that at about 3 a.m. he received information in the police station that three members of a family had been shot dead. He made an entry in the police station diary and started for the village of occurrence. He reached the village at 4 a.m. He saw a big mob in the village and he came to know that the murders had been committed in the house of Shankar situated at the end of Bishunpur village across the culvert. He also came to know that the villagers had taken Gayatri for treatment. He reached the house of Shankar, the informant, at 4.15 a.m. He saw the dead bodies of Bedamia Devi and Jitendra Kumar lying on the same cot. He recorded the statement of Shankar P.W. 5 at 4.30 in the morning in the presence of witnesses Satya Narain Prasad P.W. 3, and Sheo Kumar Gope. The formal first information report was prepared by literate constable Bijali Singh under the signature of Assistant Sub-Inspector of Police Umesh Prasad Yadav.
At 6-25 a.m. the dead body of Gayatri was brought on a cot and kept in the house of Shankar Gope. He prepared three inquest reports, Exts. 2, 2/1 and 2/2. These reports show that they were prepared between 6.30 and 7 a.m. He also claims to have collected blood stained earth from under the cot on which the dead bodies were lying. This seizure memo, Ext. 5, was prepared at 7-10 a.m. He also prepared another seizure memo, Ext. 5/1 at 7.15 a.m. whereunder he seized the one empty cartridge made of brass found in the lane in front of the house of the informant. He claims to have inspected the place of occurrence between 7.05 and 7.20 a.m. This witness has admitted that the seized items were kept in the Malkhana of the police station and he had not sent the blood stained earth to the Forensic Science Laboratory for its report. This witness also deposed about Chandi P.S. case No. 85 of 1995 dated 22-3-1995 instituted under Section 436, IPC for which a charge sheet has been submitted. He also stated about the Chandi P.S. case No. 228 of 1995 filed by the informant against the appellant Hari Narain in which charge sheet had been submitted on 30th August, 1995. According to this witness, the distance of the bridge from the house of the informant was about 200 yards. This witness clarified that he had not made any entry in the station diary of the police station regarding any information received by him, but he had only made entry about leaving the police station. He came to know about the occurrence only after reaching the place of occurrence. He denied the suggestion that information had been given to him by Ramanand or any one else about the occurrence at 3 a.m. in the police station. He admitted that he had recorded the statement of the informant and the witnesses in paras 7 to 13 of the case diary. These paragraphs had been written in the case diary before he sent the Chowkidar to the police station to inform about the occurrence so that higher police officers may be informed on telephone. However, he did not send the fardbeyan with the Chowkidar to the police station for registering a case. He had found a lantern inside the room which was hanging from the Machan. He admitted that appellant Hari Narain Mahto had made a complaint on 1-8-1995 in the form of an information petition to the S.D.O. Hilsa against the officer of the Chandi police station, but he denied the suggestion that he did not conduct an impartial investigation due to complaints lodged by appellant Hari Narain against the police, and that he had tried to falsely implicate the accused person.
19. On behalf of the defence three witnesses have been examined. D.W. 1 Kameshwar Pd. Singh was examined to prove Ext. 1 which was filed on 1-8-1995 by appellant Hari Narain before the Sub-divisional Officer, Hilsa. In the said information petition, the opposite parties are 11 in number including P.W. 5, the informant, P.W. 2 and P.W. 3. He had complained that the opposite parties were criminals and in connivance with anti social elements were terrorising and frightening the petitioner in view of the impending election. In the same petition, it was alleged that the opposite parties were in connivance with the police and the police was trying to falsely implicate the petitioner in false cases in connivance with the opposite parties.
The second petition, Ext. A/1 was filed by the appellant Hari Narain before the Sub-divisional Officer, Hilsa in which three police officers are the opposite parties including P.W. 7 Ashok Singh, the Investigating Officer in this case. It is alleged in the said petition that the opposite parties were trying to harass and ruin the petitioner in connivance with people belonging to Yadav caste, and that they had falsely implicated him in Chandi P.S. case No. 228 of 1995. The petitioner apprehended that they will implicate him in false cases and that they were always demanding money from the petitioner.
These two petitions have been brought on record to show that the members of the Yadav community were acting in connivance with the Investigating Officer, P.W. 7, were inimically disposed towards appellant Hari Narain and were bent upon falsely implicating him in criminal cases.
20. D.W. 2 Harendra Kumar was the Chairman of Chandi Block Panchayat Samity and he produced the proceeding book of the Panchayat Samity. He proved that on 17-5-1995 a resolution proposed by appellant Hari Narain Mukhiya of Madhopur Gram Panchayat was passed by the Samity in which it was resolved to give information to the District Officer, Sub-divisional Officer and the Officer-in-charge of the police station that tension was prevailing in village Bishunpur due to caste disputes and the anti social elements were creating tension by obtaining fire arms illegally.
21. D.W. 3 is one of the Mukhiyas who had signed the proceedings of Block Panchayat Samity held on 7-7-1995.
22. This is all the evidence that is there on record. On an appraisal of the evidence on record, the trial Court came to the conclusion that the prosecution had proved its case against the appellants herein. The trial Court relied upon the eye-witness account given by P.W. 5, the informant in the case. It also relied upon the dying declaration said to have been made by Gayatri before the villagers. It further held that the prosecution had failed to prove its case as against the remaining accused persons since it was not possible for P.W. 5 to identify the other persons, who are said to have entered his Courtyard, from the Machan where he was hiding. On these findings, the trial Court convicted and sentenced the appellants as earlier noticed.
23. The facts of the case establish that village Bishunpur is a caste and faction ridden village, and the rival groups belonging to different castes and factions are also motivated by political considerations. The prosecution witnesses on the one hand, and the appellants on the other, belong to rival groups. P.W. 5, the sole eye-witness is himself an informant in a criminal case against appellant Hari Narain and others. The defence evidence also suggests that Hari Narain has been complaining against Yadavs of the village. He has also been complaining to the higher authorities against the Investigating Officer, P.W. 7 on account of his partisan attitude towards Yadav and vindictive attitude towards him and his supporters. In the premises, it follows that the evidence has to be viewed with caution, particularly when the prosecution case rests on the sole testimony of the informant who is the only eyewitness of the occurrence. The prosecution evidence consists of the ocular account given by P.W. 5, the dying declaration of Gayatri, (deceased) and the evidence of P.Ws. 1 to 4 who had seen the accused persons going together soon after the occurrence and to whom P.W. 5 had narrated the occurrence when they came to his house.
24. It is contended on behalf of the defence that the whole case is a concocted case. It is not seriously disputed that in the night intervening 10th and 11th of November, 1995 this ghastly incident took place, but it is submitted that the occurrence was not witnessed by any one. P.W. 5 was not present in the house where the occurrence took place otherwise he would not have been spared when the assailants did not even spare a female member of the family and two children. In all probability, the occurrence came to light later and thereafter P.W. 5 and his associates in collusion with the Investigating Officer concocted a false case and made it appear as if the matter had been promptly reported to the police with full particulars. It was contended that Gayatri, having regard to injuries suffered by her, could not have survived, and must have died instantaneously. Even if it is assumed that she survived for some time, in view of the injuries suffered by her, it would have been impossible for her to speak. The prosecution made a deliberate effort to concoct a false case that she was alive and was in a position to speak with a view to buttress their case with the aid of a dying declaration. It was further submitted that the corroborating witnesses namely, P.Ws. 1 to 4 were not the next door neighbours of the informant. They came from different parts of the village, and except one, the remaining three live in the village on the western bank of the river. These witnesses saw the accused at different places in the night, and it is not a mere coincidence that each one of them identified all the 12 accused persons. This only shows that these witnesses were made to depose in a parrot like manner with a view to support the concocted version of the occurrence. Counsel further submitted that there is intrinsic evidence on record to prove that the fardbeyan was not recorded at 4-30 a.m. and that the whole case was concocted later.
25. I shall first take up for consideration the evidence relating to the dying declaration said to have been made by Gayatri before the villagers. I may notice the medical evidence on record which does not support the case of the prosecution on this aspect of the matter. The doctor found ante-mortem injuries caused by fire arms on the dead body of Gayatri. He found that the spinal column of the neck, larynx, trachea and oesophagus were severely damaged. The spinal chord was severely contused. In his opinion, the injury caused to Gayatri Devi could have resulted in her instantaneous death. He also opined that in view of the injuries suffered by her, she could not be in a position to speak.
26. The prosecution has led evidence to establish that Gayatri was alive when the witnesses reached the house of Shankar P.W. 5. She was immediately removed to the hospital at Chandi by the villagers. The prosecution evidence as to the villagers who took her to Ghandi is some what discrepant. According to Balram Yadav, P.W. 1 he went with Ram Bhajan, P.W. 4, Ramnandan, Sadhu P.W. 2 and the informant Shankar P.W. 5, to Chandi hospital. Sadhu, P.W. 2 on the other hand does not claim to have gone to the Chandi hospital. Similarly, Shankar, P.W. 5 also denied that he had gone to Chandi hospital. He named Satya Narain P.W. 3, Sheo Kumar, Ram Bhajan P.W. 4 etc as the persons who had taken Gayatri to Chandi hospital. P.W. 3 claims to have gone to the hospital along with other villagers and he went to the extent of saying that the doctor there gave him some paper while referring Gayatri to Patna. He however misplaced the paper. Ram Bhajan, P.W. 4 claims that he went with Balram P.W. 1, Sadhu, P.W. 2, Satyanarain P.W. 3, Shankar, P.W. 5 and others to the Chandi hospital. From the evidence of these witnesses the picture that emerges is some what confusing particularly, as to whether Shankar the informant, P.W.5, and Sadhu P.W. 2 at all went to the hospital at Chandi. Some of the witnesses have mentioned that they had gone with them, but P.Ws. 2 and 5 do not claim to have gone to the Chandi hospital. The only documentary evidence which could have established their visit to the Chandi hospital was the paper said to have been given by the doctor at Chandi hospital, but the same was misplaced as stated by Satya Narain, P.W. 3. I shall deal with the evidence later which suggests that if Satya Narain P.W. 3 had really accompanied Gayatri to the Chandi hospital, he could not have been present at the village when the fardbeyan was recorded at 4-30 a.m.
27. The evidence of the witnesses is to the effect that Gayatri was alive when they reached the house of Shankar. They have described her variously as writing in pain, screaming and shouting. While doing so, she was naming Hari Narain as her assailant. A reading of the deposition of these witnesses gives the impression that Gayatri was in a position to talk and she was talking to the witnesses as and when they came, mentioning the name of Hari Narain as her assailant. In this context, it would be important to remember that according to P.W. 5, the accused stayed in his house for about 20 minutes and only after half an hour after their departure did the witnesses reach his house. The witnesses were, therefore, deposing to the facts noticed by them about 50 minutes after the occurrence. It appears to me that the witnesses are not speaking the truth when they say that Gayatri was shouting or screaming and naming Hari Narain as her assailant. Having regard to medical evidence on record, I am inclined to accept the opinion of the doctor P.W. 6 that Gayatri Devi may have met instanteneous death after suffering the injuries described by him. In any event, even if she were alive, she would not be in a position to make a dying declaration in the manner alleged before the witnesses. The learned trial Court has tried to explain the opinion of the doctor by reference to Modi's jurisprudence and has reached the conclusion that Gayatri must have been in a position to whisper. This however, is not the evidence of the witnesses because their evidence is to the effect that Gayatri was shouting and screaming when they reached the house of Shankar. Moreover the trial Court has not given due importance to the extensive injuries found by the doctor. From the evidence of P.W. 6 as also from the postmortem report prepared by him, it appears that the spinal column of the neck, larynx, trachea and oesophagus were severely damaged. The spinal chord was severely contused. There was a fraction of cervical vertebra. A bullet was found stuck which could not be extracted without severing the neck. These injuries, to my mind, may have resulted in instantaneous death. However, [even if it is assumed that Gayatri survived for some time, it is impossible to imagine that she could have made a dying declaration in the manner alleged by the witnesses. The doctor who deposed as a witness had actually seen the injuries caused to the neck of the deceased and was, therefore, in a better position to give an opinion as to whether a person having suffered such injuries could speak at all. His opinion is to the effect that a person suffering such injuries could die instantaneously and in any event could not speak. I am, therefore, of the view that there was no good reason to discard the opinion of the doctor having regard to the nature of injuries found by him. The evidence on record supports the view that even if Gayatri was alive for some time, she could not have made a dying declaration. P.W. has gone to the extent of saying that when Gayatri was brought to the hospital at Chandi, she was alive and was asking for water. Unfortunately, the doctor who attended her at Chandi hospital, has not been examined.
28. From the facts noticed above, I have no doubt that the witnesses were not speaking the truth when they stated that Gayatri was shouting and screaming when they reached the place of occurrence, and that she had named Hari Narain as her assailant. Having regard to the nature of injuries caused to her neck severely damaging the spinal column of the neck, larynx, trachea and oesophagus, and severely contusing the spinal chord, together with fracture of the cervical vertebra, she could not have spoken a word after suffering these injuries. She was a child 14 years of age, and it appears highly improbable that with such injuries, she could name her assailant before the witnesses. The medical evidence on record also accords with the conclusion reached by me.
29. The next submission urged on behalf of the appellants is that no one had witnessed the occurrence and that with the connivance with the investigating Officer the fardbeyan was ante-timed with a view to strengthen the prosecution case that the matter was immediately reported disclosing the names of the assailants.
30. The Investigating Officer, P.W. 7, has deposed that he had learnt about the occurrence at about 3 a.m. whereafter he proceeded to the village of occurrence which was 4 K.Ms. away. He stated in his examination-in-chief that he proceeded for the village of occurrence after making an entry of this information in the police station diary entry No. 224. In his cross-examination, however, he clarified that the entry made in the police diary was not regarding the information received by him, but regarding his departure from the police station. He came to know about the occurrence only on reaching the village at 4 a.m. It was submitted that the Investigating Officer was not correctly stating the facts before the Court. P.W. 1 who was one of the villagers who is said to have accompanied the injured Gayatri to the hospital, has stated that the hospital as well as the police station are at the same place. P.W. 4 has further clarified the position by stating that the police station and the hospital are side by side at Chandi. In these circumstances, if the villagers had actually gone to Chandi hospital they would have certainly lodged a report at the police station. If they did not do so, their conduct was most unnatural. But counsel submitted that there is evidence adduced by the prosecution itself that the matter was reported to the police at about 3 a.m. when the villagers had gone to Chandi hospital for the treatment of Gayatri. P.W. 4 Ram Bhajan has stated in clear terms that Ram Nandan, his cousin, who had also accompanied him, went to the police station and disclosed the names of the assailants. The aforesaid Ram Nandan has not been examined to deny the fact that he had gone to the police station and reported the matter to the police naming the assailants. The Investigating Officer. P.W. 7, clearly denies the fact that any report was made to him about the occurrence by any villager at 3 a.m. It was, therefore, submitted that there are two possibilities. Firstly, Ramnandan may have reported the matter to the police which is the earliest version of the occurrence. The prosecution is withholding the information given by Ramnandan to the Investigating Officer. If it is assumed that the villagers did not make a report to the police, their conduct is most unnatural having regard to the fact that several villagers had accompanied Gayatri to Chandi hospital and the police station was just adjacent to the hospital. If they had really gone to Chandi hospital and the Medical Officer had examined Gayatri, they would have certainly reported the matter to the police immediately. It was, therefore, submitted that from whichever angle viewed, this circumstance supports the case of the defence that a false case was concocted later. The witnesses did not make a report even though they had gone to Chandi as they did not know anything about the occurrence. On the other hand, if a report was actually made as stated by P.W. 4 that report has been withheld from the Court, which contained the earliest version of the occurrence. There is substance in the submission urged on behalf of the defence, but this circumstance is not the only circumstance which casts a doubt on the prosecution case.
31. The second circumstance is that admittedly the fardbeyan was recorded by the Investigating Officer in the village at 4.30 a.m. The fardbeyan has been witnessed by two persons, namely, Satya Narain P.W. 3 and Sheo Kumar. Satya Narain, P.W. 3 has stated that after they returned to the village and placed the dead body of Gayatri in the house of the informant, the police came half an hour later. This means that the police came half an hour after the villagers had returned from the Chandi hospital. It is, however, not disputed that the fardbeyan witnessed by these two witnesses was recorded at 4-30 a.m. This becomes doubtful when one closely examines the deposition of the Investigating Officer, P.W. 7, He has deposed to the effect that the dead body of Gayatri was brought at 6.25 a.m. and kept in the house of the informant. Counsel for the appellants submitted that under Sub-section (2) of Section 172 Cr. P.C., the Court may use the case diary not as evidence in the case, but to aid it in the trial. He submitted that a mere perusal of the case diary for this limited purpose would show that in paragraph 15 of the case diary it is recorded that the dead body of Gayatri was brought at 6.25 a.m. That is also the statement of the Investigating Officer. One fails to understand how the fardbeyan could be recorded at 4.30 a.m. and witnessed by P.W. 3 Satyanarain, when he returned with the dead body of the deceased Gayatri at 6.25 a.m. If what is stated by the Investigating Officer and recorded in the case diary is true, that the dead body of Gayatri was brought back to the village at 6.25 a.m., it must follow that the police came half an hour later i.e. at about 7 a.m. Even if it is assumed that the fardbeyan was recorded at 4-30 a.m. Satyanarain P.W. 3, could not have signed as a witness to the fardbeyan since the same was recorded at 4-30 a.m. and he returned from Chandi hospital at 6-25 a.m. The informant is also categoric in saying that Satyanarain and Sheo Kumar were present when the fardbeyan was recorded. In view of the evidence adduced by the prosecution itself, it is difficult to believe that the fardbeyan could have been recorded at 4-30 a.m. since the same was recorded in the presence of Satyanarain, P.W. 3. who returned from Chandi hospital only at 6-25 a.m. This circumstance certainly supports the defence case that the fardbeyan was ante-timed to make it appear prompt.
32. The third circumstance highlighted by the counsel for the appellant is that the fardbeyan was not sent immediately to the police station for registering the case in the police station. In this regard, the statement made by the Investigating Officer is significant. He admitted that he had recorded the fardbeyan at 4-30 in the morning. He thereafter prepared the inquest reports and prepared the seizure memos. He inspected the place of occurrence from 7-05 to 7-20 a.m. He did not record the statement of any witnesss between 5-30 and 6-25 a.m. From the inquest reports, it appears that three inquest reports were prepared between 6-30 and 7 a.m. The two seizure memos were prepared at 7-10 a.m. and 7-15 a.m. The Investigating Officer admitted the fact that he had recorded the statement of the witnesses in paragraphs 7 to 13 of the case diary. He had sent the Chowkidar to the police station to give information about the occurrence to the senior officers on telephone. By the time, he sent the Chowkidar to the police station he had already recorded the fardbeyan as also the statement of the witnesses. However, he did not send the fardbeyan to the police station for registering a case. From paragraph 14 of the case diary we have verified that the Chowkidar was sent to the police station at 5-30 a.m. Counsel submitted that these facts indicate that the fardbeyan was not recorded as promptly as it purports to have been recorded. If the fardbeyan was recorded at 4-30 a.m., the statement of witnesses by 5-30 a.m., and the Chowkidar was sent to the police station at 5.30 a.m. there was no reason why the Investigating Officer did not send the fardbeyan to the police station for registering the case. These facts do indicate that the fardbeyan had really not been recorded at 4-30 a.m. as claimed by the prosecution.
33. The next circumstance pointed out was that from the formal FIR it appears that it was prepared at 9 a.m. on 11th November, 1995 and that the same was sent to the magistrate through Special Messenger. It however, reached the Magistrate only on the following day i.e. 12th of November, 1995. It was submitted that if the special report was sent on the 11th of November, 1995 at about 9 a.m., there is no reason why it should have reached the Magistrate only a few kilometers away on the next day. There is no explanation for the delay, and in the light of the circumstances noticed above, it makes the prosecution case even more suspicious.
34. Another circumstance pointed out by counsel for the appellants is that the seizure lists were prepared at about 7-10 a.m. By then a case had not been registered in the police station. The Investigating Officer himself stated that he had not sent the fardbeyan to the police station through the Chowkidar. It is therefore, surprising to find that the seizure lists mention the number of the Chandi P.S. Case. It was submitted that number of the case registered in the police station could be given on the seizure list only after the case was registered in the police station and certainly, it could not be given at 7-10 a.m. when the case was registered in the police station at 9 a.m. counsel for the State submitted that the number of the police station case may have been filled up later after the case was registered, but counsel for the appellants requested us to examine the original or the carbon copy of Exhibits 5 and 5/1. We have perused the documents marked Exts. 5 and 5/1 by the trial Court, which are really carbon copies of their respective originals. From a scrutiny of the same, it appears that the entire document was written by the same person and at the same time. In column (1) it is mentioned Chandi P.S. 322 of 1995 dated 11-11-95 under Sections 302/34, IPC and 27 Arms Act. In column (2) the date and time is mentioned. In column No. (3) the place from where recovery has been made is mentioned and in column (4) the names of the witnesses have been mentioned. Column (5) mentions the description of the items seized. Column (6) contains the signature of the witnesses and column (7) contains the signature of the Investigating Officer. Though it may not be possible to record a conclusive opinion by a mere perusal of the documents, it does appear that the seizure memos were written at the same time by the same person.
35. The circumstances noticed above do create a serious doubt as to whether the fardbeyan was really recorded at 4-30 a.m. as alleged by the prosecution. There is material for suspecting that the fardbeyan as well as the case diary was written out later, but while doing so the Investigating Officer lost sight of the fact that the witnesses who had signed the first information report, had returned to the village at 6.25 a.m., whereas the fardbeyan was shown to have been recorded at 4-30 a.m. In this case, it cannot be disputed that there is subsisting enmity between the appellants on the one hand and the informant on the other. In view of subsisting enmity between them, the evidence has to be viewed applying the rule of caution. Counsel for the appellants submitted that if 12 accused persons came in search of the informant, it is unlikely that he would have been spared. The room in which he was hiding was a small room, and if the appellants had really come determined to kill him, they would have made a search for the informant and found him out. It was submitted that in all probability, the informant was not present in the house when the occurrence took place. He may have been at his family house on the western bank of the river when the occurrence took place. Later when the three persons were found murdered in his house on the eastern bank of the river, in collusion with the police a false case was concocted ante-timing the fardbeyan. It is not possible for this Court to express any definite opinion in this regard, but the circumstances discussed above do create a serious doubt about the recording of the fardbeyan at 4.30 a.m.
36. The trial Court has not attached much importance to the testimony of P.Ws. 1, 2, 3 and 4 inasmuch as on their testimony, it has not found a case under Section 302/34, IPC proved against the eight accused who were acquitted by him. The evidence of these witnesses does not inspire confidence. They are not the next door neighbours of the informant. In fact three of the witnesses are residents of the village situated on the western bank of the river. All of them claimed to have seen the 12 assailants moving together, though at different places. All of them have identified all the 12 accused without making any mistake. They identified the assailants at about 1 a.m. in moon light. In these circumstances, it appears some what unnatural that each one of them identified all the 12 assailants at night without making a mistake. The informant deposed that he saw 15-16 persons coming towards his house. Coincidentally, he also identified the same 12 persons identified by P.Ws. 1 to 4.
P.Ws. 1, 2 and 3 are the residents of the village which lies on the western bank of the river. Only P.W. 4 claimed that his house was located on the eastern bank of the river at a distance of about 100-125 yards from the house of the informant. He claimed that he saw the 12 accused persons coming out of the house of the informant. However, it has been elicited from the Investigating Officer, P.W. 7 that Ram Bhajan P.W. 4 had not stated before him that he had seen the accused persons coming out from the house of Shankar, the informant. He had only stated that on seeing the accused persons he hid himself. I am, therefore, of the considered opinion that the evidence of P.Ws. 1 to 4 is not reliable and cannot be acted upon. It appears that they have all been tutored to name the same accused whom they claim to have identified in moon light, though at different places in the village. It also appears improbable that the assailants after committing such a ghastly crime would move about freely in the village without making an attempt to conceal themselves. The testimony of these witnesses has already been rejected by me in regard to making of dying declaration by Gayatri.
37. We are then left with the testimony of P.W. 5 the informant. This witness was on inimical terms with the appellants. His evidence has, therefore, to be viewed with caution. The trial Court has disbelieved him inasmuch as it has rejected his testimony as regards the identification of 8 of the assailants, who have been acquitted by the trial Court. The trial Court has recorded a clear finding, and rightly, that the informant could not have identified the persons who had entered his courtyard from the place where he was hiding. The informant did not claim that he had identified the persons who were coming in a mob towards his house when he first saw them. He claims to have identified them only when they entered his courtyard, and at that time he was concealing himself on the machan inside the room. It was impossible for the informant to have identified those 8 persons who had remained in the courtyard because the courtyard was not visible from the machan where the informant was hiding. Moreover the informant claimed that he was lying on the machan on his belly and had hid himself in the husk stored on the machan. Counsel for the State also frankly submitted that having regard to the facts of the case, it would not be possible for him to support the prosecution case that the informant could have identified those eight persons while hiding on the machan. Though he claims to have seen that appellants who had entered the room where he was hiding, it appears highly improbable that a person in his state of mind, apprehending death at the hands of the assailants, would have noticed them in the room when he was himself hiding on the machan lying on his belly in the husk stored there. If he could see the appellants, the appellants could have also noticed his presence and would not have spared him. It may be, as suggested by counsel for the appellants, that he was not present in the house at the time of occurrence, and was in his ancestral home on the western bank of the river where his wife and children and other members of the family resided. To prove his presence at the place of occurrence, the informant stated that he had brought cooked food from his family house and after taking their meals all had gone to sleep. The utensils had been kept in the room situated on the western side, meaning thereby the room in which they were all sleeping. However, P.W. 7, the Investigating Officer did not find any utensils inside the room where the dead bodies were found.
38. The quality of evidence of P.W. 5 is not such that on his sole testimony a conviction can be recorded in such a serious case of triple murder. He cannot be classified as a wholly reliable witness. Even on the findings recorded by the trial Court, and on the basis of the evidence on record, it must be held that he tried to falsely implicate eight persons by naming them in the fardbeyan, when he could not have possibly seen and identified them in his courtyard. The trial Court has, therefore, acquitted those eight accused persons. There is also clear enmity between the appellants and the informant. The case made out by the informant that Gayatri was shouting and naming Hari Narain as her assailant, also appears to be untrue. I have recorded a finding that Gayatri was not in a position to speak, even if she had not died instantaneously. The circumstances surrounding the recording of the fardbeyan also create a serious doubt about the fair and honest investigation of the case by the Investigating Officer. The fardbeyan appears to be ante-timed since the witnesses who have signed the fardbeyan as witnesses were not present in the village at 4.30 a.m. when the fardbeyan is said to have been recorded. All these circumstances create a reasonable doubt about the truthfulness of the prosecution case. In my view, the appellants are, at least, entitled to the benefit of doubt.
39. In the result, Criminal Appeal No. 392 of 1998 and Criminal Appeal No. 420 of 1998 are allowed and the appellants are acquitted of the charges levelled against them. The appellant in Cr. Appeal No. 420 of 1998 is on bail granted by this Court by its order dated 9-9-1998. His bail bonds are discharged. The remaining appellants are in custody and they are directed to be released forthwith unless required to be detained in custody in connection with any other case. The Death Reference is declined.
D.P.S. Choudhary, J.
40. I agree.