Patna High Court
State Of Bihar vs Chintoo Singh @ Vijay on 11 October, 2010
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh, Dharnidhar Jha
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DEATH REFERANCE No.6 OF 2008
STATE OF BIHAR................................................................(Appellant)
Versus
CHINTOO SINGH @ VIJAY S/O JAMUNA SINGH....................(Respondents)
with
CR. APP (DB) No.156 OF 2008
CHINTU SINGH @ VIJAY SINGH,S/O LATE JAMUNA SINGH R/O
ANGHRAJI BAZAR SONEPUR, P.S. SONEPUR, DIST:CHAPRA
(SARAN)............................................................................(Appellant)
Versus
STATE OF BIHAR............................................................(Respondents)
with
CR. APP (DB) No.249 OF 2008
SANJEET KUMAR RAM @ SANJEET KUMAR DAS, S/O DUKHAN DAS, R/O
VILLAGE-BARI ISUPUR, P.S.INDUSTRIAL AREA, DIST-VAISHALI AT
HAJIPUR...........................................................................(Appellant)
Versus
STATE OF BIHAR............................................................(Respondents)
with
CR. APP (DB) No.268 OF 2008
RANJEET KUMAR RAM @ RANJEET KUMAR DAS, S/O DUKAN DAS , R/O
VILLAGE-BARI ISUPUR, P.S.INDUSTRIAL AREA, DIST-VAISHALI AT
HAJIPUR...........................................................................(Appellant)
Versus
STATE OF BIHAR.............................................................(Respondents)
with
CR. APP (DB) No.357 OF 2008
PANDIT @ SANJAY MAHTO, S/O MAHENDRA MAHTO R/O VILLAGE-
SABALPUR, P.S. SONEPUR, DIST-SARAN................................(Appellant)
Versus
STATE OF BIHAR.......................................................(Respondents)
with
CR. APP (DB) No.451 OF 2008
BIRENDRA BHAGAT,S/O MAHAVIR BHAGAT R/O VILLAGE-FAKULI, P.S.
KURHARI, DIST-MUZAFFARPUR..........................................(Appellant)
Versus
STATE OF BIHAR............................................................(Respondents)
-----------
Reference made by Sri Prem Chandra Gupta, Ist Additional District &
Sessions Judge, Vaishali at Hajipur vide letter no. 18/08 dated 06.02.2008 and
appeal against the judgment and order dated 28.01.2008 passed in Sessions
Trial No. 422/2006.
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-----------
For appellant ( Cr.Appeal No. 156/08):- Mr. Surendr Kumar Singh,Adv
Mr. Ganesh Prasad Singh,Adv
For appellant (Cr.Appeal No.249/08 & 268/08):- Mr. Kanhaiya Pd. Singh,Sr.Adv.
Mr. Ashutosh Kumar, Adv.
Mrs. Jyotsna, Adv.
For appellant (Cr.Appeal No.357/08):- Mr. Jai Prakash Singh, Adv
Mr. L.B. Singh, Adv.
For appellant (Cr.Appeal No.451/08):- Mr. Rajeev Ranjan No.1
Mr. Sudhir Kumar Singh, Adv.
For the State:- Mr. Lala Kailash Bihari Pd,APP
---------------
P R E S E N T
THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON'BLE MR. JUSTICE DHARNIDHAR JHA
Shiva Kirti Singh, J. The Death Reference and connected five Criminal
Appeals arise out of a common judgment and order dated 24th January 2008
passed by learned First Additional Sessions Judge, Vaishali at Hajipur in
Sessions Trial No. 422 of 2006 whereby he has convicted appellant, Chintoo
Singh @ Vijay Singh and appellant, Birendra Bhagat under Section 364A of
the IPC and the remaining three appellants under Section 364A read with
Section 120B of the IPC and has awarded all of them rigorous imprisonment
for life and fine of Rs.10,000/- each. Appellant Sanjeev Das has been
acquitted of the charge under Section 302/34 and 201 of the IPC but the
remaining four appellants have been convicted for the said charges also for
which appellant Chintoo Singh @ Vijay Singh has been awarded death
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sentence and the remaining three appellants have been awarded rigorous
imprisonment for life and a fine of Rs. 10,000/- each. No separate sentence
has been passed under Section 201 of the IPC but in default of payment of
fine the concerned convict is required to undergo a further rigorous
imprisonment for one year.
2. According to prosecution case, Vickey a five year old
son of the informant, Sunil Kumar Singh (PW-8) was enticed away by two
unknown persons on a motorcycle on 27.02.2006 at about 5:30 p.m. from
near the vegetable shop of the informant at Paswan Chowk, Hajipur. A short
and precise information was given by the informant to the police through
written report dated 27.02.2006 (Ext-2) which disclosed that while the
informant was selling vegetables in the evening hours at his shop at Paswan
Chowk and his son was playing nearby, a person who came on motorcycle,
gave chocolates to the boy and took him on his motorcycle. The age of the
boy was five years. That person who enticed away the boy told the daughter
of the informant that he would come back with the boy after returning from
a washerman's place but he did not come back till the time of information.
The informant requested the police to search for the boy. On the basis of the
said written report, Hajipur Town (Industrial) P.S. Case No. 105 of 2006
was instituted on 28.02.2006 at 10:15 a.m. against unknown persons. The
formal FIR has been proved as Ext-13.
3. It is further case of the prosecution as disclosed by the
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informant that in spite of search the boy was not found. After five or six
days of the kidnapping appellant, Sanjay Pandit and Ranjeet told the
informant that his son would come back if he paid money. Both the said
appellants have vegetable shops in the neighbourhood of informant's shop.
After three months on 23.06.2006 through telephonic information at the
gaddi of one Baleshwar, the informant was asked to pay Rs.4 Lacs for return
of his son, Vickey. When the informant expressed his inability to pay that
much, the demand was reduced to Rs.2 Lacs and the phone was
disconnected. On 1st July 2006, a telephone call came at the gaddi of one
Surendra and after bargain the amount was fixed at Rs. 1,05000/- . On 3rd
July 2006 phone was received at STD Booth in front of vegetable shop and
when the informant replied that he had arranged the money then he was
asked to bring the money across the new Gandak Bridge ahead of Line hotel
of Bachcha Babu at Sonepur. When the informant expressed fear in coming
with the money alone then he was instructed on telephone to come with his
neighbours Ranjeet and Sanjay Pandit. Informant had withdrawn Rs.
80,000/- from his saving accounts with Bank of India at Rajendra Chowk,
Hajipur and had taken loan of Rs. 20,000/- from his father-in-law, Sakal
Mahto and Rs.5,000/- was available with him from before in cash. He
requested Sanjay Pandit and Ranjeet to accompany him to Sonepur where he
had to pay the money. By chance, appellant, Sanjeet also came there and
offered to go along with them for paying the money. On the next date i.e.,
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4th July 2006 at about 4 O'Clock in the morning the informant wrapped the
amount of Rs. 1,05000/- in a plastic bag and kept it in a gunny bag under the
carrier of his cycle. Sanjeet sat on the informant's cycle whereas Sanjay
Pandit sat on the cyle of Ranjeet. They crossed the new Gandak Bridge and
reached Sonepur. Two steps ahead of Line hotel of Bachcha Babu, Sanjeet
got down from informant's cycle and went in a hut on the left side of the
road. After the informant had proceeded about five steps, two persons came
out and pulled away the money concealed in a gunny bag under the carrier
of informant's cycle. It appeared that those two persons already knew where
the money was kept. Appellants Ranjeet and Sanjay Pandit were also
standing there. On enquiry by the informant he was told by the person who
had taken the money that his son would reach him by evening hours. When
the informant started returning, Sanjeet came out of the hut and sat on his
cycle. On informant's enquiry Sanjeet disclosed that his sister's husband
whose name is Birendra Bhagat lives in that hut. That Birendra Bhagat was
wearing blue shirt and had a light moustache, he was short and fair
complexioned whereas the other person was tall and wheatish in complexion
and was wearing ring in his ears. This person with ring in his ears was
subsequently identified as appellant, Chintoo Singh.
4. After two days also the boy did not return and then on
3rd day the informant went to the hut where he had paid the money. He
learnt from the persons in the vicinity that Birendra Bhagat is an out-sider
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who lives in that hut which is situated on Government land. He was told that
Birendra Bhagat was a criminal and the other person Chintoo is a neighbour
but on that date both could not be found at their place. Thereafter, informant
went to the police again. According to the prosecution case as unfolded by
the Investigating Officer, Reeta Kumari, PW-12 on 16.08.2006 she again
recorded the statement of the informant in which he named five accused
persons and further disclosed about the demand and payment of money. He
explained that because of threat to the safety of his son he did not disclose
these developments earlier to the police. According to I.O. a raid was
conducted at Sonepur and at the same time Ranjeet Kumar and Sanjeet
Kumar were arrested. Ranjeet made a confessional statement and disclosed
that the kidnapped child was kept at Kudhni in the house of Kaushalya Devi
but later he was killed by Chintoo Singh by pressing the neck and by further
injuries to head by a brick and the dead body was left under the culvert of
road going from Bhagwanpur to Bahadur. Ranjeet further disclosed about
some ransom money being kept in a note book in his room. The I.O. also
obtained signature of Ranjeet on the said confessional statement (Ext-14).
The I.O. arrested Sanjay Mahto @ Pandit and recorded his confessional
statement (Ext-15). According to I.O., thereafter, Birendra Bhagat and
Chintoo Singh ware also arrested. Their confessional statements were also
recorded and have been proved as Exts. 16 and 17 respectively. Same
location of dead body is in Exts. 15,16 and 17.
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5. It is further case of the prosecution as disclosed by the
I.O., PW-12 that on the basis of confessions by the aforesaid accused
persons police went to Kudhni P.S. and reached Phakuli out-post. The
Incharge of that Phakuli out-post, Rakesh Kumar Singh, S.I. of Police (PW-
11) gave a statement and disclosed that near the culvert of Bhagwanpur
village the dead body of a boy aged about 4-5 years had been recovered for
which Kudhni (Phakuli out-post) P.S. Case No. 128/06 dated 22.04.2006
under Sections 302, 201, and 34 of the IPC had been registered. Thereafter,
the I.O. arrested co-accused, Kaushalya Devi (since acquitted) and placed
the accused persons on Test Identification Parade after obtaining permission
of the Chief Judicial Magistrate. She obtained from Phakuli O.P., the
production/seizure list in relation to a vest and half pant and the informant
identified the photograph of the dead body of the child as well as the
clothes. According to I.O., in course of the investigation, on the confessional
statement of Ranjeet, his room was searched and a currency note of Rs.500/-
was seized on which name of the informant, Sunil Singh was written with a
sketch pen of green colour. The said currency note has been proved as
Material Ext. No.1 and the signature of the informant on that note of Rs.
500/- has been proved as Ext-6. The fardbeyan lodged by the concerned
Chaukidar which is the basis of Kudhni (Phakuli out-post) P.S.Case No.
128/06 is Ext-9, the formal FIR is Ext-10. The Inquest Report of that case is
Ext-8, the seizure list is Ext-11, photograph of the child is Ext-3 and the
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production-cum-seizure list is Ext-12.
6. After completing the investigation the I.O. submitted
charge-sheet under Sections 364A,302, 368 and 201 of the IPC in the court
of Chief Judicial Magistrate, Vaishali against five appellants and one
Kaushalya Devi, mother-in-law of appellant Birendra Bhagat. Learned Chief
Judicial Magistrate, Vaishali took cognizance and committed the case to the
court of sessions on 15.09.2006. The accused persons were charged under
Section 364A, 120B, 302/34 and 201 of the IPC. They denied the charges
and were hence put on trial. The general defence of the appellants is that
they are innocent, have not committed any offence and have been falsely
implicated due to enmity or business rivalry. It is the defence of accused
Ranjeet Kumar that nothing was recovered from his house. The appellant
Sanjeet Kumar Das has taken a further defence that on 27.02.2006 when the
boy was enticed and kidnapped, he was taking examination of intermediate
at Samastipur and from 2nd July to 6th July 2006 he was busy in the marriage
of his Saali (wife's sister) in a village in the district of Muzaffarpur.
7. The prosecution, in order to prove the charges examined
14 witnesses in total and exhibited a large number of documents whereas
seven defence witnesses were examined on behalf of the accused persons.
8. PW-1, Rakesh Kumar Singh is a relation of the
informant, he has corroborated the fact that informant's son Vickey was
enticed away by two persons on a motorcycle on 27.02.2006 and he
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participated in the search but the boy could not be found. On other relevant
and important aspects of the case, he is a hearsay witness. PW-2, Ruby
Kumari is an important witness. She is daughter of the informant and sister
of the victim boy, Vickey. At the time of occurrence, she was slightly less
than 7 years of age and was playing near the place where Vickey was also
playing with some other children. She has deposed that two persons came on
a red motorcycle (splendor). The person who was wearing ring in the ears
gave chocolates to all children including Vickey after purchasing the same
from a shop at that place. He persuaded her also to sit on the motorcycle but
she did not agree. Vickey sat on the motorcycle in the front, on tank. That
man told her that he was going to washerman to bring clothes and thereafter
he will drop the boy but they never came back. According to her, Ranjeet
and Pandit also used to sell vegetables in the nearby shops and they used to
tell her father to pay money to get the boy back. In the court, she recognized
the accused persons including Chintoo Singh as a person who gave
chocolate to her and to Vickey. She identified Birendra Bhagat as the person
who was with Chintoo Singh at the time the boy was taken away. She
claimed that she had identified Birendra Bhagat in jail also i.e., during Test
Identification Parade. She has fairly admitted in cross-examination that she
had learnt from her father regarding suggestion to pay money for return of
the victim. Nothing material has been extracted from her cross-examination.
Her claim that she recognized Chintoo Singh and he had given chocolate to
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her and the victim boy has not been challenged in cross-examination.
9. PW-3, Sukhdeo Singh is maternal uncle of the
informant. He has deposed that on the date of occurrence at about 9:00 p.m.
he was at his house and the informant came and told him that his son,
Vickey had been kidnapped at about 5:00 in the evening. He had been taken
away on a motorcycle. He has not been cross-examined in respect of his
aforesaid statement and only some formal questions were put to him.
10. PW-4, Raj Bansi Devi is a witness of search of the
house of accused, Ranjeet Das and of recovery of a currency note of
Rs.500/- on which name of the informant was written with green ink. She
has identified that currency note as Material Ext-1. She has also identified
her signature on the seizure list as Ext-1. She has identified appellant,
Ranjeet & Sanjeet. In cross-examination, she has admitted that the house
from-where recovery of currency note was made is inhabited by other
members of the family of Ranjeet also. She has claimed that the I.O. went
inside the house and opened an almirah from which the currency note of
Rs.500/- was recovered from a copy. She has also admitted that she was at
the entrance of the concerned room inside the house. There is nothing to
discredit the claim of PW-4 that she witnessed search and seizure as claimed
by her. She has not been shown to be an interested or partisan witness.
11. PW-5, Jay Kumar Singh is also only a hearsay witness
about kidnapping of Vickey which was disclosed to him by the informant
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and his wife on the date of occurrence itself. He was told that two persons
on motorcycle had taken away Vickey.
12. PW-6, Neelam Devi is wife of the informant. She has
claimed that at the time of occurrence at about 5:00 p.m. she along with her
husband was selling vegetables in their shop. Her daughter and her son
Vickey were playing nearby along with other children. After some time on
enquiry she learnt from that two persons had come on a red colour
motorcycle and had given chocolate to the children. She was asked to sit on
the motorcycle but she expressed fear. Vickey was made to sit on the
motorcycle and on her query she was told that while returning from
washerman's house with clothes, Vickey will be dropped. But her son was
not brought back. In spite of search, Vickey could not be found. She had one
son and one daughter only. She had undergone an operation for family
planning only 15-20 days earlier. Next to her shop is the shop of Sanjay
Pandit followed by shop of Ranjeet and Sanjeet. She has deposed that phone
calls started coming after 8-10 days demanding 8 to 10 Lacs as extortion
money. On her husband's expressing inability to pay such amount the phone
calls stopped coming. Two months later again phone call came whereupon
Sanjay Pandit, Ranjeet and Sanjeet taunted that they were being guided by
love for money and not for their son. Thereafter, agreement was reached on
phone for payment of Rs.1,0,5000/- .Her husband went with the money at
about 5:00 in the morning across the new bridge along with Sanjay Pandit,
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Ranjeet and Sanjeet. The money was taken away but the boy was not
returned. Later, it was found that the boy had been killed. She has identified
appellants, Sanjay Pandit and Sanjeet. In cross-examination, it has been
extracted from her that Sanjay Pandit was running his shop in the
neighbourhood for about 10 years. Because there was more sale in her shop
hence, others were jealous of her. She has admitted that talks on phone and
demand for money was disclosed to her by her husband, the informant. She
has admitted that Sanjeet has a kirana shop away from her house but has
denied the suggestion that Sanjeet has been falsely implicated. Her evidence
is found to be reliable and nothing has been extracted to discredit her
testimony.
13. PW-7, Arvind Kumar Yadav has a shop near the place
of occurrence. He has deposed that on the date of occurrence at about 6:00
in the evening one person purchased toffees for Rs.4.50 paise from his shop.
He had come on a motorcycle. He gave toffees to the children who were
playing in front of his shop. After some time he heard that son of the
informant namely, Vickey had been kidnapped. He has claimed that Sunil,
the informant runs vegetable shop at some distance towards north-east of his
shop. He has been cross-examined on behalf of appellant, Birendra Bhagat,
Chintoo Singh and Ranjeet but nothing has come out in such cross-
examination so as to affect his testimony.
14. PW-8, Sunil Kumar Singh is the informant. His
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evidence will be considered later.
15. PW-9, Sahdeo Singh is another maternal uncle of the
informant who has, like PW-3, Sukhdeo Singh has claimed to have heard
about the occurrence in the same evening from the informant and his wife.
16. PW-10, Dr. Ram Biswash Yadav has proved the
postmortem report of a boy aged about 5 to 6 years at the hospital in
Muzaffarpur on 22nd April, 2006. He has proved the postmortem report as
Ext-8 and his signature thereupon as Ext-7. According to the doctor, there
were bruises of various shapes and sizes in the anterior portion of the neck.
There was bleeding from nose and mouth. One lacerated wound of size 4"x
1"x 1/2" in the left parietal region and a swelling in the right parietal region
of the scalp of the size 5"x 1 ½". On dissection of scalp the doctor found the
right parietal bone and right portion of the frontal bone fractured. The right
parietal, left parietal, frontal and occipital bones were found separated at
sutures. The 4th and 5th cervical vertebrae were also found fractured. In the
opinion of the doctor the deceased died due to haemorrhage and shock as a
result of blow by heavy blunt object. Time since death was six to ten hours
approximately. He has stated in cross-examination that the dead body was
not decomposed, it was identifiable. Although, in cross-examination it has
been obtained that the injuries on the body of the deceased might be caused
in accident but it appears that unlikely in view of bruises of different shapes
and sizes in the anterior portion of the neck and injuries on the left parietal
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region as well as on the right parietal region along with fractured 4th and 5th
cervical vertebrae. Such injuries from different sides of the body clearly
suggest assault in a deliberate attempt to cause death.
17. PW-11, Rakesh Kumar Singh is a Sub-Inspector of
Police who at the relevant time was In-charge of Phakuli O.P. under Kudhni
P.S. He has deposed that on 22.04.2006 body of a dead boy was recovered
from under a culvert on the road going from Bhagwanpur to Bahadurpur. He
lodged Kudhni P.S. Case No.128/06 on the statement of Chaukidar, Bharat
Rai. He has proved the Fardbeyan as Ext-9 and the formal FIR as Ext-10.
He has deposed that he took up investigation of that case and prepared
inquest report (Ext-8). He recorded statement of witnesses and obtained
post-mortem report. He recovered an old striped towel having blood marks
from the place where the dead body was found. He prepared seizure list for
the same which has been marked as Ext-11. He got the dead body of the
deceased boy photographed. He has proved the photograph which has been
marked as Ext-3. He has further deposed that on account of an accident he
went on leave and on joining his duties on 15.11.2006, he was informed by
Surya Narayan Yadav that Sub-Inspector, Reeta Kumari of Hajipur Town
(Industrial) P.S. and Sunil, father of the deceased boy had come and the
dead body was identified with the help of photograph and that a case for
kidnapping of the dead boy had been lodged by father of the deceased in the
Hajipur (Industrial) P.S. as case No. 105/2006. On that basis this witness
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prepared a production-cum-seizure list of the seized clothes and photograph
which has been marked as Ext-12. He has also deposed that on the date of
recovery the dead body was not decomposed. Nothing material has been
extracted in cross-examination of this witness. The evidence of Investigating
Officer, S.I. Reeta Kumari, PW-12 shall be considered later.
18. PW-13, Sandeep Mishra is a Judicial Magistrate who
while posted at Hajipur recorded the statement of PW-2, Kumari and PW-8,
Sunil (informant) under Section 164 Cr.P.C. on 18.08.2006 in connection
with Hajipur (Industrial) Town P.S. Case No.105/06. Statement of PW-2 has
been marked as Ext-19 and that of PW-8 as Ext-20.
19. PW-14, Dilip Kumar Singh is another Judicial
Magistrate, 1st Class who was posted at Hajipur on 23.08.2006 when he
conducted TIP of accused persons in the Hajipur Divisional Jail in
connection with present case. In the TIP PW-8 and PW-2 participated as
witnesses and Birendra Bhagat and Chintoo Singh were amongst suspects.
PW-2, Kumari identified Birendra Bhagat as the person who was driving
the motorcycle and PW-8, the informant identified both the suspects who
had extorted money. The TIP chart has been exhibited as Ext-21. Both the
witnesses are formal and nothing material has come in their cross-
examination.
20. Coming to the deposition of the informant, Sunil
Kumar Singh, PW-8, it is clear that he has not claimed to be a witness of the
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actual occurrence of kidnapping because admittedly he was busy in selling
vegetables in his shop at that time along with his wife PW-6. However, after
the actual kidnapping he has deposed that he learnt of the whole occurrence
from his daughter, Rubi (PW-2). He has given the same account of
occurrence of kidnapping as given by PW-2. After occurrence when his son
did not return, he searched for him and went to washerman's house as well
as to his own house but could not found his son. Then he gave a written
information at the police station which he has identified and proved as Ext-
2.
21. According to PW-8 the informant, his son could not be
found in spite of search. After 5-6 days of the occurrence Sanjay Pandit and
Ranjeet Ram told him that on paying money his son will come back. After
three months on 23.06.2006 4 Lacs was demanded on telephone for release
of the boy. The demand was reduced to 2 Lacs and the telephone was
disconnected. On 1st July, on telephone the amount was fixed as
Rs.1,0,5000/- and on 3rd July again a telephone call was received and on
informant disclosing that he has arranged the money, he was asked to come
with the money ahead of Line Hotel of Bachcha Babu at Sonepur after
crossing the new Gandak Bridge. When the informant expressed fear in
going with the money, he was told on telephone that he could bring his
neighbours Ranjeet and Sanjay Pandit. When the informant requested both
of them for going to Sonepur with money, Sanjeet also arrived there and
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volunteered to go for paying the money. The informant has given account of
how he concealed the money in a gunny bag and pressed it in the carrier of a
cycle and went to pay the money with Sanjeet on his cycle and Sanjay
Pandit on the cycle of Ranjeet. After they had gone about two steps ahead of
the Line Hotel of Bachcha Babu, Sanjeet got down from the cycle and went
inside the hut on the left side. When the informant proceeded five steps
further, two persons came and pulled away the money from the carrier of his
cycle as if they knew where the money was kept. Ranjeet and Sanjay Pandit
were standing at that place. The person who took the money told the
informant on enquiry that the boy would reach him by evening hours. When
the informant started coming back, Sanjeet came out of the hut and sat on
his cycle and disclosed to him that his relation, Birendra Bhagat lives in that
hut and he was the person who was wearing blue shirt and had a light
moustache and he was short and fair while the other person was wheatish
and was wearing ring in his ears. The person with ring in ears was identified
by the informant in the court also as appellant, Chintoo Singh. The
informant and others came back but the boy did not return. After two days
the informant went back to the place where he had delivered the money and
learnt that Birendra Bhagat lives there and hut was constructed on
Government land. He learnt that Birendra Bhagat is a criminal and the other
person with ring in the ears is Chintoo Singh. His house was by the side of
house of Birendra Bhagat but both could not be found in their houses. The
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informant has deposed that he did not disclose about the phone calls and
demand of money to the police because Sanjay Pandit, Ranjeet and Sanjeet
used to tell him that if it was disclosed to the police then criminals would
kill his son. They also used to tell him that when demand was being made
on phone he should pay the money. After some time the informant disclosed
all the facts to the police whereupon Sanjay and Ranjeet were arrested. Then
it was learnt that the boy had been kept at Phakuli village with Kaushalya
Devi but he was killed and the dead body was concealed under a culvert.
Phakuli village is within Muzaffarpur district. He claimed to identify the
photograph of the dead body as that of his son and also the clothes which
were shown to him by the police. Both the photographs identified by the
informant as that of his son have been marked as material Exts-3 and 3/1.
The clothes (vest and half-pant) were identified by the informant have been
marked as material Ext-2. He has proved his signature on the statement
under Section 164 Cr.P.C. as Ext-4 and has claimed that he identified
appellants, Birendra Bhagat and Chintoo Singh in the TIP which was held in
jail in presence of a Magistrate. He has also deposed that he taken out
Rs.80,000/- from the Bank account No.16808 of Bank of India whose pass
book was produced by him. He has deposed that he had paid the ransom
money in currency having denomination of 500/- and on 2-3 notes he had
put his signature and mentioned the date as 3/7. He has identified his
signature in green ink upon material Ext. No.1 as Ext-6. Although,
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suggestion has been given to this witness that he has implicated Ranjeet,
Sanjeet and Sanjay Mahto @ Pandit on account of business rivalry or
enmity but nothing material has been elicited in the cross-examination
which may discredit the testimony of this witness. His deposition appears to
be truthful and reliable. The criticism that he did not disclose about
telephone calls and payment of money to the police at the relevant time is
well explained by the witnesses that he did not do so because of threat and
fear that his son, the victim may be harmed by the criminals.
22. PW-12, Reeta Kumari is the Investigating Officer of
this case. She has proved the formal FIR as Ext-13. She claims to have
examined the place of occurrence soon after taking charge of investigation.
She also recorded statement of PW-2 and other witnesses. She has claimed
that on 16.08.2006 the informant Sunil Kumar came to the police station and
again gave a statement in which he named all the five appellants and gave
details about the demand of money on telephone and payment of money at
Sonepur. He also told her that he was threatened not to disclose the demand
of money to the police.
23. As per information given by the informant, the I.O.
went to Sonepur to effect arrest. There, she learnt that Birendra Bhagat was
a criminal and was living in a hut made over Government land. She arrested
Ranjeet Kumar and Sanjeet Kumar. Ranjeet made a confessional statement
disclosing where the kidnapped boy had been kept near village, Kudhni with
20
Kaushalya Devi. The confessional statement recorded in her own hand-
writing and signed by Ranjeet as identified by the I.O. in her deposition has
been marked as Ext-14. She also recorded confessional statement of Sanjay
Mahto @ Pandit (Ext-15). She arrested Birendra Bhagat and Chintoo Singh
from a bazaar at Sonepur. Confessional statement of Birendra Bhagat and of
Chintoo Singh have been proved by her as Ext-16 and 17. She has claimed
that on the basis of the confessional statements she went to P.S Kudhni and
reached Phakuli O.P. and recorded statement of In-charge of that outpost,
Rakesh Kumar Singh (PW-11). He disclosed about the recovery of dead
body of a child aged 4-5 years leading to Kudhni (Phakuli O.P.) P.S Case
No. 128/2006 dated 22.04.2006 under Sections 302, 201 and 34 of the IPC.
On the basis of confessional statements she raided the house of Kaushalya
Devi and arrested her. She obtained permission of the Magistrate and placed
the accused persons on TIP. She received from Phakuli O.P. vest and half
pant with production-cum-seizure list. The informant identified the
photograph of the dead boy and his clothes as that of his son, the victim. In
course of investigation, on the basis of confessional statement of Ranjeet she
recovered a currency note of Rs.500/- from room of Ranjeet. On that note
name of Sunil Singh was written with green sketch pen. She has identified
that currency note (material Ext-1). She claimed that she had prepared
seizure list of the currency note in presence of two witnesses and on her
identification the seizure list has been proved as Ext-18. She also received
21
postmortem of the deceased boy and on completing investigation submitted
charge-sheet. She identified all the accused persons present in court.
24. The cross-examination of this witness discloses that
she committed several kinds of careless mistakes in conducting the
investigation. She has admitted that she was taken by the informant to the
place where money was paid but admits that the fact that she saw the place
and identified it, is not mentioned in the case diary. She also admitted that
she did not give a copy of the seizure list to any member of family of
Ranjeet. She did not examine the chaukidar of Phakuli O.P., Bharat Rai, the
informant of Kudhni P.S.Case No.128 of 2006. She did not mention the fact
in the case diary that she had received photographs of the dead body from
the Officer In-charge of Phakuli O.P. She did not record the statement of
witnesses of seizure made at the house of Ranjeet. She has also admitted in
paragraph-108 and 109 of her deposition that in her later statement PW-6,
Neelam Devi had disclosed that ransom amount was fixed at Rs.1,0,5000/-
and her husband went with Ranjeet and Sanjeet across the new bridge and
paid the money but child was not returned. But she has added that even after
listening to such statement of PW-6 she did not record the same in the case
diary. Thus, the I.O. appears to be lacking in efficiency and competence but
this has not affected the prosecution case because the material facts have
been proved by either PW-2 who has identified the two persons who
kidnapped the victim boy and took him on motorcycle or by the informant,
22
PW-8 who has truthfully given out all the circumstances and has also
identified the two kidnappers as the persons who took money from his cycle
at the place near Line Hotel of Bachcha Babu in Sonepur. The
circumstances against the other three accused persons are also proved by the
informant and corroborated by his wife, PW-6 and by two police officials-
PW-11 and the I.O. (P.W-12).
25. The defence has examined 7 witnesses in all. DW's
1,2,3 and 6 have deposed in favour of plea of alibi or defence of Sanjeet that
he took Intermediate Exam from 13.02.2006 to 3.3.2006 at Samastipur and /
or he attended his sister-in-law's marriage between 2 to 6th July 2006. The
charge of conspiracy is not affected by such defence plea. DW's 4 and 5
have come forward to support general defence of enmity as reason for false
implication. They do not inspire any confidence. DW-7 has raised a plea of
alibi for Chintoo Singh although this accused never took such plea himself.
Hence the DW's are found to be of no substance and value.
26. The fact that informant's son, Vickey was kidnapped in
the evening hours on 27.02.2006 by two persons on a motorcycle has not
been seriously controverted and stands proved by the evidence of PW-2,
PW-6 and the informant, PW-8. The occurrence has been corroborated by
some of the hearsay witnesses also who met the informant and his wife soon
after the occurrence. The fact that the victim boy Vickey never returned is
also not disputed. The recovery of dead body of a boy from a place near
23
Kudhni, the Inquest Report and Post Mortem Report are also not under
challenge. The dispute raised on behalf of the appellants is with regard to
identification of Chintoo Singh @ Vijay and Birendra Bhagat as the two
persons who had come on motorcycle and taken away the victim boy after
Chintoo Singh had given chocolates to the children and the victim. Further
dispute is that these two persons have not been correctly identified as the
persons who took the ransom money from the informant by snatching it
from the carrier of the cycle. On these two aspects, after going through the
statement of PW-2 and of the informant PW-8, there appears no doubt that
both these persons have been correctly identified. On behalf of the appellant
Chintoo Singh an attempt was made to take advantage of the fact that he
could not be identified by PW-2 in course of TIP wherein she identified only
Birendra Bhagat. However, she has identified him in court with confidence
and this was not challenged by way of cross-examination. Further, his
identification by the informant, both in Test Identification Parade as well as
in court does not suffer from any infirmity and cannot be doubted. Appellant
Birendra Bhagat has been identified by both the witnesses in the T.I.P. as
well as in Court. Hence, the direct involvement of appellants, Chintoo Singh
@ Vijay Singh and Birendra Bhagat in the offence of kidnapping and taking
of ransom money i.e., under Section 364A of the IPC is found to have been
proved beyond any reasonable doubts.
27. The other aspect of the case relating to murder of the
24
victim boy and charge under Section 302 read with Section 34 and Section
201 of the IPC requires deeper consideration in view of submission
advanced on behalf of the convicted accused persons that there is no direct
or circumstantial evidence in support of charge under Sections 302/34 and
201 of the IPC.
28. On analyzing the evidence led on behalf of prosecution
it is found that it has succeeded in proving that on the basis of confessional
statement of Ranjeet (Ext-14) and that of 3 others (Exts 15 to 17) recorded
one after another in succession within a short span of time, i.e., between
9.20 hours to 12.40 hours of 18.08.2006 as deposed by the I.O., she learnt
that the boy had been kept near Kudhni. On the basis of such disclosure the
I.O. went to Kudhni P.S. and Phakuli O.P. there-under, leading to discovery
of the fact that dead body of a boy aged 4-5 years had been recovered from
the place revealed in the confessional statements leading to Kudhni (Phakuli
O.P.) P.S. Case no. 128 of 2006 dated 22.04.2006. It is also established that
on the basis of photograph and clothes of that dead body PW-8, informant
identified the same to be of his son, Vickey. Considering that Vickey never
returned and his father identified the photograph and clothes and there being
no good or conceivable reason of making a false identification, it is found
that the prosecution has established that the victim boy Vickey was
murdered by some person or persons a few hours earlier to discovery of his
dead body as per the postmortem examination which was held on
25
22.04.2006 itself. The main challenge before the prosecution was to
establish as to who were the persons responsible for causing murder of the
victim boy Vickey. It has to be seen whether the prosecution has been
successful in proving the charge under Section 302/34 and 201 of the IPC
against remaining four appellants or not (appellant, Sanjeet Kumar Ram @
Sanjeet Kumar Das has been acquitted of this charge).
29. The charge of murder has been fastened against four
appellants with the aid of Section 34 of the IPC which provides that when a
criminal act is done by several persons in furtherance of the common
intention of all, each of such person is liable for that act in the same manner
as if it were done by him alone. In the case of Maqsoodan V. State of Uttar
Pradesh, AIR (1983) SC 126 it has been held that common intention is a
question of fact. Its determination is subjective and can be inferred from the
facts and circumstances brought on record by the prosecution. In order to
meet the argument advances on behalf of the appellants that there is no
evidence on record as to who participated in the criminal act of murder, the
prosecution is required to prove by direct evidence or by circumstances that
the four appellants in question had participated in the criminal act of murder.
Admittedly, there is no direct evidence as to who committed the murder of
the victim boy and in what manner. The circumstances proved by the
prosecution against the concerned appellants is to the effect that the boy was
kidnapped and kept concealed for some days till his dead body was found on
26
22.04.2006 from the place and with injuries, as disclosed in their
confessional statements. Since the boy was kidnapped by appellants,
Chintoo Singh and Birendra Bhagat, they are the persons who were last seen
with the deceased boy. They have not offered any explanation as to
subsequent events leading to murder and recovery of dead body of the
victim boy. The burden of proving any fact which is especially within the
knowledge of any person lies upon that person as per Section 106 of the
Indian Evidence Act. Once it is found that the aforesaid two appellants had
possession of the victim boy on account of his kidnapping, subsequent
information about that boy was within their special knowledge but they have
not stated or led any evidence to prove that they parted company with the
kidnapped boy while he was still alive. It was within their power to depose
on this issue or lead material evidence but no such evidence was produced
by them. Section 114 of the Indian Evidence Act permits the court to
presume the existence of any fact which it would think likely to have
happened regard being had to the relevant factors. As per illustration (d) to
that Section a thing or state of things which has been shown to be in
existence may be presumed to be still in existence till it is shown to have
changed. According to illustration (g) of the same Section 114 of the Indian
Evidence Act, the evidence which could be and is not produce may be
presumed to be unfavourable to the person who withholds it, if it had been
produced. In the circumstances of the case, it can safely be presumed that
27
possession of appellants Chintoo Singh and Birendra Bhagat over the
kidnapped boy continued in existence till he was murdered. They have not
produced evidence of any kind to show that something else happened to the
victim boy and hence, in the facts of the case, it would be quite safe to
presume that evidence if produced on this point would be unfavourable to
these two appellants who have withheld the evidence.
30. In view of the aforesaid facts and circumstances and
legally drawn presumptions it is found that appellants Chintoo Singh and
Birendra Bhagat were having control over the victim boy till his death. They
had full opportunity to cause his murder in view of apparent difficulty in
keeping a kidnapped boy concealed for a long period. Thus, they had the
opportunity and motive and no other person except the appellants had any
reason or opportunity to cause the murder of the deceased boy. Accordingly,
it is found and held that the charge under Section 302/34 and Section 201 of
the IPC has been rightly held proved against these two appellants.
31. Charge under the aforesaid Sections in respect of
appellants Ranjeet and Sanjay Mahto @ Pandit have been found proved by
the learned trial court. But on their behalf it has been argued that since their
conviction is based solely upon their alleged confessional/disclosure
statements before the Police, it cannot be sustained. It is clear from evidence
on record that against aforesaid two appellants circumstantial evidence has
been adduced but those relate to charge under Section 364A read with
28
Section 109 of the IPC which shall be discussed hereinafter. But the charge
under Sections 302/34 and 201 of the IPC is dependent only upon their
confessional/disclosure statements (Exts-14 and 15). In those statements
before the I.O. during investigation it was disclosed inter alia that Vicky, the
victim boy was taken to a place near Kudhni and was then murdered at a
place on the road from Bhagwanpur to Bahadur and the body was left under
a culvert over a dry "Nala", i.e., drain or canal. On this information I.O.
went to the concerned Police Station because long time had elapsed from
murder and confessional statements. The facts found by the I.O.
corroborated the disclosure as to the place of keeping the dead body as well
as the manner of killing by injuries on the neck and head. The Inquest report
(Ext-8) corroborates both while the Post Mortem Report (Ext-7)
corroborates the location and nature of injuries appearing from the
confessional statements.
32. Section 27 of the Indian Evidence Act is in the nature
of exception to Sections 25 and 26. As held in several cases including in the
case of Arun Mandal Vs. State of Bihar, 2008 (1) PLJR 296, decided by us
on 2.11.2007, Section 27 makes admissible only so much of information
given by an accused in police custody as relates distinctly to the facts
thereby discovered. This Section is based on the doctrine of confirmation by
subsequent events. In the present case, the subsequent events confirm the
correctness of disclosure made as noticed above. The facts proved attract
29
Section 27 and make it applicable as per law laid down by the Supreme
Court in the case of Geejagonda Somaiah Vs. State of Karnataka, (2007) 3
SCC (Cri) 135, wherein it has also been held that the requirements for the
applicability of the Section 27 are:-
(i) Information must be such as has caused discovery of
material facts and
(ii) Information must relate distinctly to the facts
discovered.
The Supreme Court has thus expanded the meaning of this
Section and has further held that in appropriate case after applying Section
27 for the limited purpose, the Courts can also draw presumption under
Section 114, and Section 106 of the Evidence Act. The disclosure part of
Exts. 14 and 15 is, therefore, found admissible against appellants Ranjeet
and Sanjay Mahto @ Pandit also. The presumption under Section 114(g) is
also available against them. Regard being had to the common course of
natural events and human conduct, a presumption will arise that they were
associated with the murder of the deceased boy whose body was found at
the very place disclosed by them. It also had injuries on neck and head as
disclosed. Under Section 106 of the Evidence Act, mitigating facts to
explain such knowledge was in their special knowledge and the burden of
proving such facts was not discharged even in their statements under Section
313 of Cr.P.C. wherein they have simply pleaded false implication due to
enmity. Hence, charge under Section 302/34 and 201 of the IPC is found
proved against Ranjeet and Sanjay Mahto @ Pandit also.
30
33. So far as charge under Section 364A read with Section
120B of the IPC against the appellants, Sanjeet Kumar, Ranjeet Kumar &
Sanjay Mahto @ Pandit is concerned, it has been argued on their behalf that
the circumstances proved by the prosecution are not sufficient to prove the
said charge beyond reasonable doubts and they have been implicated only
on account of petty business rivalry, jealousy and suspicion. As noticed
earlier there is no direct evidence on record in respect of the aforesaid
charges relating to these three appellants. The circumstances which have
been proved by the prosecution are slightly different against each of the
three appellants named above. Against Sanjay Pandit and Ranjeet the
informant has deposed that after 5-6 days of the occurrence they told him
that on paying money his son will come back. The informant has disclosed
the name of these two appellants as the persons who were to accompany him
for paying the ransom money as per suggestion given to him on telephone
by the criminals. On informant's request these two agreed to go with him
and were present when the money was snatched away from his cycle. His
wife, PW-6 has corroborated him on some of these claims. It has also come
in the evidence that these two appellants and Sanjeet used to tell the
informant not to disclose about the ransom calls to the police. Against
appellants Ranjeet and Sanjay Mahto @ Pandit it has further come in the
evidence of the I.O. that they in their confessional statements disclosed that
the victim boy had been kept near Kudhni and as per Ext-14 and 15, he was
31
killed at a nearby place. On such disclosure the I.O. went to Kudhni P.S.
leading to facts showing recovery of the dead body of the victim boy from
the particular place. According to evidence of the I.O. supported by PW-4,
Raj Banhi Devi, a currency note of Rs.500/- was also recovered from the
room of Ranjeet on the basis of his disclosure. That currency note bearing
name of the informant has been proved as Material Ext-1. No doubt copy of
the seizure list in respect of seizure of the said currency note was not given
to family members of Ranjeet and that makes the seizure procedure
defective but for that lapse of the I.O. it is not possible to disbelieve the
evidence of the PW-4 who has deposed regarding the factum of recovery of
Material Ext-1 from room of Ranjeet.
34. On careful consideration of the aforesaid
circumstances, the charge of conspiracy in relation to offence under Section
364A read with under Section 109 of the IPC is found to have been proved
beyond reasonable doubts against appellant, Ranjeet Das and Sanjay Mahto
@ Pandit. However, the circumstances mentioned above against appellants
Sanjeet Das do create some suspicion but are not sufficient to show that he
was also in conspiracy with the other appellants. The circumstances against
him are capable of being compatible with his innocence and hence the
appellant Sanjeet Das deserves to be given benefit of doubt in respect of
charge under Section 364A/120B of the IPC.
35. As discussed and found earlier, the charge under
32
Sections 302/34 and 201 and also the charge under Section 364A of the IPC
are found proved against appellants, Chintoo Singh and Birendra Bhagat.
Appellants, Ranjeet Das and Sanjay Mahto @ Pandit are also found guilty
under Sections 302/34 and 201 as well as Section 364A/109 of the IPC. The
appellant, Sanjeet Das stands acquitted of all the charges.
36. The sentence awarded to appellants, Birendra Bhagat
and the other convicted appellants, Ranjeet Das and Sanjay Mahto @ Pandit
for the respective charges require no interference. But so far as sentence of
death awarded to appellant, Chintoo Singh is concerned, upon proper
consideration of law laid down by the Apex Court in the case of Machhi
Singh Vs. State of Punjab, AIR 1983 S.C. 957 and some other cases that
death sentence should be awarded only in rarest of the rare cases and upon
considering the facts and circumstances of this case wherein conviction is
based for the offence under Section 302/34 and Section 201 of the IPC only
on circumstantial evidence, the sentence of death awarded to appellant,
Chintoo Singh is not found fit to be confirmed. The same is set aside and is
commuted to rigorous imprisonment for life and also fine of Rs.10,000/-
which, if not paid would require him to undergo further rigorous
imprisonment for one year. Life imprisonment awarded to the appellants in
this case would not be less than actual rigorous imprisonment for fourteen
years.
37. As a result, death reference is answered in negative and
33
with modification in sentence in respect of offence under Section 302/34 of
the IPC the appeal of Chintoo Singh stands dismissed. Similarly, the appeal
of Birendra Bhagat, Ranjeet Kumar Ram and Pandit @ Sanjay Mahto also
stand dismissed. The appeal of Sanjeet Das is allowed as he has been
acquitted of all the charges. He should be released forthwith if not required
to be kept in jail in connection with any other case.
(Shiva Kirti Singh, J.)
Dharnidhar Jha, J.
(Dharnidhar Jha, J.) Patna High Court Dated the 11th of October, 2010 Md. Perwez Alam/AFR