Patna High Court
State Of Bihar vs Krishna Yadav @ Bigga Mahata @ on 28 September, 2012
Author: Amaresh Kumar Lal
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Death Reference No.1 of 2012
(Against the judgment of conviction and order
of sentence dated 21.02.2012 and 23.02.2012
respectively passed by Shri Sultan Muzaffer,
1st Additional Sessions Judge, West
Champaran, Bettiah in Sessions Trial No.628
of 2011 arising out of Bettiah Town P.S. Case
No.592 of 2011)
===========================================================
The State of Bihar
.... .... Appellant
Versus
1. Krishna Yadav @ Bigga Mahata @ Mama @ Mulla, resident of village-
Singahi, P.S.- Bairiya, District- West Champaran.
2. Bhola Prasad Kushwaha, son of Late Jabali Kushwaha, resident of village-
Gobarahi, P.S.- Sri Nagar, District- West Champaran.
.... .... Respondents
With
Criminal Appeal (DB) No. 232 of 2012
===========================================================
1. Mukti Narayan Chaudhary S/O Late Rameshwar Chaudhary R/O Vill-Athahiya
Bishambharpur, P.S.Bhairoganj, District West Champaran
.... .... Appellant
Versus
1. The State Of Bihar
.... .... Respondent/s
With
Criminal Appeal (DB) No. 237 of 2012
===========================================================
1. Upendra Chaudhary S/O Suresh Chaudhary Resident Of Village- Inglishiya,
P.S.- Chautarwa, District- West Champaran
.... .... Appellant
Versus
1. The State Of Bihar
.... .... Respondent
With
Criminal Appeal (DB) No. 361 of 2012
===========================================================
1. Bhola Prasad Kushwaha S/O Late Jababi Kushwaha R/O Village - Gobarahi,
Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 2
Police Station - Sri Nagar, District - West Champaran
.... .... Appellant
Versus
1. The State Of Bihar
.... .... Respondent
With
Criminal Appeal (DB) No. 382 of 2012
===========================================================
1. Krishna Yadav @ Bigga Mahto @ Mama @ Mulla S/O Nathuni Mahto R/O
Village - Singahi, P.S. Bairiya Under The District Of West Champaran
2. Ravi Mahto S/O Krishna Yadav @ Bigga Mahto @ Mama @ Mulla R/O Village
- Singahi, P.S. Bairiya Under The District Of West Champaran
.... .... Appellants
Versus
1. The State Of Bihar
.... .... Respondent
With
Criminal Appeal (DB) No. 638 of 2012
===========================================================
1. Dashrath Chauhan S/O Natha Chauhan R/O Village - Belwa Dumaria, P.S.
Chautarwa Under The District Of West Champaran
.... .... Appellant/s
Versus
1. The State Of Bihar
.... .... Respondent/s
With
Criminal Appeal (DB) No. 736 of 2012
===========================================================
Chandeshwar Sah, son of Kishun Sah, resident of village- Inglishiya, P.S.-
Chautarwa, District- West Champaran.
.... .... Appellant
Versus
The State Of Bihar
.... .... Respondent
===========================================================
Appearance :
(In D. REF. No. 1 of 2012)
For the State : Mr. Ashwani Kumar Sinha, Add.P.P.
For the respondent : Mr. Amarendra Nath Verma, Advocate
Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 3
(In Appeals)
For the Petitioner/s : Mr. Amarendra Nath Verma, Advocate
: Mr. Dhirendra Kumar, Advocate
For the Respondent/s : Mr. Ashwini Kumar Sinha, Add.P.P.
===========================================================
CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
And
HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
C.A.V.JUDGMENT
(Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL)
Date: 28-09-2012
Death Reference Case No.01 of 2012 and Cr. Appeal
(D.B.) Nos. 232, 237, 361, 382, 638 and 736 of 2012 arise out of the
judgment of conviction and order of sentence dated 21.02.2012 and
23.02.2012respectively passed by the learned 1 st Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No.628 of 2011 arising out of Bettiah Town P.S. Case No.592 of 2011 by which the accused Krishna Yadav @ Bigga Mahato @ Mama @ Mulla and Bhola Prasad Kushwaha have been held guilty under Sections 120 B and 364A/34 of the Indian Penal Code (hereinafter referred to as I.P.C.) and both have been sentenced to death and the remaining appellants namely, Ravi Mahto, Upendra Choudhary, Chandeshwar Sah, Mukti Narayan Choudhary and Dashrath Chauhan have been convicted and sentenced to undergo life imprisonment for the offence punishable under Sections 120B and 364 A of the I.P.C. and the reference has been made to the Patna High Court for the confirmation of the death sentence under Section 366 Cr.P.C.
Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 4
2. Since all the cases arise out of the judgment of conviction and order of sentence passed in Sessions Trial No.628 of 2011 arising out of Bettiah Town P.S. Case No.592 of 2011, as such, they have been heard together and are being disposed of by this common judgment.
3. The prosecution case as disclosed from the written report (Ext.1) of Kamal Kishore Choudhary, S.I. of Police, Bettiah Town Police Station (P.W.4) is that on 6.12.2011 at 10.30 A.M. he received a telephonic message from Rajendra Singh (P.W.7), 1047 Baranari, P.S.- Aslali, District- Ahmadabad that Krishna Yadav @ Mama called his cousin brother Ravindra Singh (P.W.8), House No.272, Sector 4/A, S.D. Public School, Shastrinagar, P.S.- Govindgarh, District- Fatehgarh, Punjab to Bettiah for installing a rolling machine and has kidnapped him. He has been demanding a sum of Rs.25 lacs through the mobile no.9878633782 on the mobile of his house bearing no.9878433782. A Sanha has been instituted and an information has also been given to the Superintendent of Police, Bettiah.
4. On the basis of this written report, Bettiah Town P.S. Case No.592/2011 dated 6.12.2011 was instituted for the offence punishable under Section 364A of the I.P.C. After investigation, charge-sheet was submitted against all the seven appellants named- Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 5 above under Section 364A of the I.P.C. and cognizance was taken against them. The case was committed to the Court of Sessions. The contents of the charges for the offence punishable under Sections 120B and 364A/34 of the I.P.C. was read over and explained to all the appellants to which they denied and claimed to be tried. As such, the trial proceeded. The defence of the accused is that they are innocent. Further defence of the accused-appellants Mukti Narayan Choudhary and Chandeshwar Sah is that they have been falsely implicated by the police due to non-fulfillment of the demand of money made by the police for which they filed an informatory petition before the S.D.O. After the trial, the appellants have been convicted and sentenced as aforesaid by the learned trial court.
5. This Court is required to reappraise the evidence and to consider as to whether the prosecution has been able to substantiate its charges against the appellants beyond shadow of all reasonable doubts.
6. This Court is further required to consider as to whether the death sentence awarded to Krishna Yadav @ Bigga Mahato @ Mama @ Mulla (appellant no.1 in Cr. Appeal No.382 of 2012) and Bhola Prasad Kushwaha (appellant in Cr. Appeal No.361 of 2012) is fit to be confirmed by this Court.
7. The prosecution has examined the following Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 6 witnesses in support of its case: P.W.1 Islam Gaddi, P.W.2 Manzoor Gaddi, P.W.3 Sheo Chandra Choudhary, P.W.4 Kamal Kishore Choudhary, P.W.5 Surjit Kumar, P.W.6 Indrajit Singh, P.W.7 Rajendra Singh, P.W.8 Ravindra Singh, P.W.9 Pranav Shankar, P.W.10 Ajay Kumar, P.W.11 Pawaneshwar Mahato, P.W.12 Atul Kumar Pathak, P.W.13 Jarnail Singh and P.W.14 Naresh Kumar.
8. The defence has examined the following witnesses in support of its case: D.W.1 Ram Prasad Sah and D.W.2 Ashok Ram.
9. P.W.1 has stated that on the date of occurrence, he was at Sighi Peepra Ghat and saw that three persons were with a Panjabi Sardar. One of them took Sardar Ji on the boat and went to the other side of the river and two of them returned from the Ghat (bank of river). Two days thereafter at about 10-11 A.M., the man who has taken the Sardar Ji on the other side of the river was returning alone. The Sardar Ji was not with him. He has identified the accused Krishna Yadav @ Mama, Upendra Choudhary and Chandeshwar Sah who were accompanying Sardar Ji on the first day of the occurrence. 3-4 days thereafter in the night at about 7-8 P.M., the police came there. Krishna Yadav @ Mama was also with the police party. P.W.1 and others crossed the river and went ahead at the instance of Krishna Yadav. After going 3-4 K.Ms. there was a sugarcane field. At the instance of Krishna Yadav, Sardar Ji and Bhola Mahto were found in Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 7 the sugarcane field. The police took two persons in its custody. He has identified the accused Bhola Mahto, who was present in the court. In his cross-examination, he has stated that he is the contractor of the Ghat (bank of river) and he remained present on his duty from 8.00 A.M. to 11.30 A.M. and 3.00 P.M. to 5 P.M. He takes fare and takes the person who wants to go other side the river. He has further stated that he was knowing Bhola Mahto and Krishna Yadav prior to the occurrence. Krishna Yadav had identified Upendra Choudhary as his son. Prior to this occurrence, he had never seen Upendra with Krishna.
10. P.W.2 has stated that 15 days prior to his deposition on 22.12.2011 at about 9.00 P.M. he was on the Sighi Pipra Ghat. The Officer-in-charge brought two persons. At his instance, he took them on the other side of the river by boat. He has been identified in the court as Krishna Yadav and Ravi. The police officer asked Krishna as to where he has kept Sardar Ji. Thereafter, Krishna proceeded ahead and other persons followed him. After going about 2 K.M. they went in the filed of Bhola Kushwaha and saw that hands and legs of Sardar Ji were tied and Bhola Kushwaha (appellant) was present there. A mobile was recovered from Bhola Kushwaha. In his cross- examination, he has stated that he is not the contractor of the Ghat. He is only worker on the Ghat for the last four years. He has further Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 8 stated that the police party was armed with firearms. No one was flashing light. They had gone to the sugarcane field where the Sardar Ji had been confined.
11. P.W.3 has also supported the case as P.W.1. He has identified Krishna, Mukti Narayan, Chandeshwar and Dashrath in the court. Two persons Krishna and Sardar Ji had crossed the river and Krishna had given Rs.30/- as fare for both of them. After two days, Krishna came alone and went towards the market. In his cross- examination, he has started that he is the boatman of the P.W.1, who has three boats.
12. P.W.4 is the informant of this case. He has stated that on 6.12.2011 while posted as S.I., Bettiah Town Police Station at 10.30 A.M., he received the telephonic message of Rajendra Singh (P.W.7) from Ahmadabad that Krishna Yadav @ Mama called his cousin brother Ravindra Singh (P.W.8), House No.272, Section 4/A, S.D. Public School, Shastrinagar, P.S.- Govindgarh, District- Fatehgarh, Punjab to Bettiah for installing rolling machine and has kidnapped him and has demanded a sum of Rs.25 lacs as ransom through the mobile no.9878633782 on the mobile of his house bearing no.9878433782. A Sanha has been instituted and an information has also been given to the Superintendent of Police, Bettiah and Officer I/C through telephone. He gave the written report to this effect to the Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 9 Officer I/C of the police station. He has identified the written report (Ext.1). He has also identified the certified copy of station diary entry no.121 (Ext.2). In his cross-examination, he has stated that he is not the Investigating Officer. He passed the information to the Superintendent of Police through his mobile no.9934260271. On the basis of the written information given by him, FIR was lodged. He had been informed only the name of Krishna, name of his parents was not told him.
13. P.W.5 has stated that Ravindra Singh (P.W.8) is his relative. On 30.11.2011 Awtar Singh, son of Ravindra Singh (P.W.8) informed him through mobile that Ravindra Singh (P.W.8) has been kidnapped in Bihar. On the same day, he went to the house of Ravindra Singh at Mandi Govindgarh. He also inquired about the matter from the members of Ravindra Singh's family. 6-7 persons went to local police station (Govindgarh) and narrated this fact to the police station, but the Officer I/c told him that as the occurrence has taken place in Bihar, as such, the case would not be lodged in his police station. On 5.12.2011, P.W.5, P.W.6 and P.W.7 came to Gurudwara at Patna in the evening. On 6.12.2011, they went to the office of Superintendent of Police, Patna at 9.30 A.M. and met the police officers. P.W.7 narrated about the occurrence. The telephone number of Bettiah police station was given. Rajendra Singh (P.W.7) Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 10 talked to Kamal Kishore Singh (P.W.4) at Bettiah police station through mobile. He has further stated that they did not go to Bettiah as the kidnapper had threatened that if they would go to Bettiah, they would kill the kidnapped victim. On 8.12.2011, P.W.7 got information from the Bettiah police station that his brother Ravindra Singh has been recovered who also talked with his brother Ravindra Singh. On 8.12.2011 at 12.30 P.M., P.W.5 and others went to the police station where Ravindra Singh (P.W.8) the victim of the occurrence began to weep after seeing them. The police officer took their statement. On 10.12.2011, his statement was made before the Magistrate which has been marked as Ext.3. In his cross-examination, he has stated that prior to 8.12.2011 also he came to Bettiah. Ravindra Singh (P.W.8) is his Samdhi.
14. P.W.6 has also supported the prosecution case as P.W.5.
15. P.W.7 has stated that on 25.11.2011, he came to his house at Punjab from his Sasural at Gujarat. He came to know that on 27.11.2011 Ravindra Singh (P.W.8) had gone to Bettiah at the instance of Krishna Yadav (appellant). On 28.11.2011, Ravindra Singh did telephone in the evening to his house that he reached to Krishna Yadav and he was with him. On 29.11.2011 Ravindra Singh did telephone that Krishna Yadav and his companions have kidnapped Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 11 him and are making a demand of Rs.25 lacs as ransom, if the demand is not fulfilled, he would be killed. He has further stated that Krishna Yadav and others had also demanded the ransom through telephone. P.W.7 and others went to the local police station, but FIR was not lodged and the police officer told that they would have to go to Bettiah for lodging a case. P.W.7 came to Patna with P.W.5 and P.W.6. Krishna Yadav has also threatened them that if they would go to Bettiah, Ravindra Singh would be killed. On 6.12.2011, they (P.Ws. 5, 6 and 7) went to the office of the Superintendent of Police at Patna and P.W.7 narrated about the occurrence to the police. He got the telephone number of Bettiah town police station and talked there, who disclosed his name as Kamal Kishore Singh (P.W.4). He gave the mobile number through which the message was passed and received on the mobile. In the meantime, a message was received through mobile that amount of ransom has been decided as Rs.10 lacs and the accused told in the house of the victim through mobile to send the man having Rs.10 lacs. On 8.12.2011 in the morning, he got information from Bettiah Town Police Station that Ravindra Singh (victim) has been recovered who also talked to him. Thereafter P.Ws. 5, 6 and 7 went to Bettiah. The statement of P.W.7 was taken by the Investigating Officer and his statement was also made under Section 164 Cr.P.C. in the court. He has identified his signature (Ext.3/2). In Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 12 his cross-examination, he has stated that he had no acquaintance with Krishna Yadav. Rabindra Singh has given his mobile through which there was talking on the mobile of his house as mentioned in the written information. He has further stated that he went to the Mandi police station for 3-4 days, but the case was not lodged. He has further stated that Krishna Yadav has disclosed his name on the telephone. On 8.12.2011 he had gone to Bettiah for the first time in the police station and met his brother.
16. P.W.8 is the victim of the occurrence. He has stated that one week prior to 27.11.2011 Krishna Yadav @ Mama talked him through telephone that a rolling machine was to be installed at Bettiah. On 27.11.2011, he started for Bettiah from his house at Mandi Govindgarh and reached at Bettiah in the evening on 28.11.2011. Krishna Yadav asked him to come to the Station Chowk at Bettiah and he went there. Krishna Yadav was present there with two other persons. He, Krishna Yadav and others went to some house through auto and he was stayed in the night there. On the next day, after taking breakfast, Krishna talked to G.M. who gave him time at 4.00 P.M. Krishna asked to meet his brother in the field as there was plenty of time. Thereafter P.W.8, Krishna Yadav and his two companions started and came to the bank of the river. P.W.8 and Krishna boarded on the boat and remaining two returned. After Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 13 crossing the river, Krishna gave money to the boatman. P.W.8 and Krishna walked for about 45 minutes and reached at a hut. P.W.8 was made to sit and Krishna told that he was calling his brother. After about one and half hours, Krishna Yadav returned and told that his brother did not come and asked him to sit there. After some time, Krishna Yadav brought a man and introduced him as his brother. Thereafter, Krishna Yadav throttled him (P.W.8) and asked his companion to tie him. The hands and legs of P.W.8 were tied. Krishna Yadav took his mobile and purse and assaulted him and asked him to tell the mobile number of his house and Krishna Yadav dialed and asked him to talk to the members of his house. As such, he talked on mobile phone at his house and told that he was kidnapped and Rs.25 lacs was being demanded for his release. Thereafter, Krishna Yadav also talked at his house through mobile and abused the members of his family and he also demanded Rs.25 lacs as ransom failing which P.W.8 would be killed within two days. P.W.8 was thrown in the sugarcane field. He was kept confined for 11 days. Krishna and his companions assaulted him at the intervals of 3-4 hours daily. The place of his abode was changed each time. In the meantime during that period Krishna also talked on mobile at his house. The members of his (P.W.8) family agreed to pay Rs. 10 lacs to Krishna and Krishna said that he would receive money at the station. Thereafter, Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 14 Krishna went to Bettiah Station leaving P.W.8 with the accused Bhola and did not meet him for 2-3 days. In the night, he heard the noise of footsteps of some persons. At that time, Bhola was also with him. They apprehended Bhola and some of them showed the identity card disclosing their identity as police personnel. He has identified Krishna Yadav, Bhola, Ravi, Chandeshwar and Upendra in the court as culprit of the offence. He has also stated that Ravi Mahto had also taken him to the bank of the river. His statement was also recorded by the Magistrate, which has been exhibited as Ext. 3/3. He has also stated that he has also identified the accused persons in the Test Identification Parade. In his cross-examination, he has stated that Krishna Yadav asked him to install a rolling machine. He came to Krishna Yadav believing his statement. Prior to that, he had also installed rolling machine in the State of Jharkhand. On 27.11.2011, he started for Bettiah by train. He came to Bettiah. He had also gone to Jail after releasing from captivity for T.I.P. 9-10 persons have been placed and he identified the accused persons out of them. The defence has not been able to demolish his evidence.
17. P.W.9 is the Judicial Magistrate, who has recorded the statement of victim Ravindra Singh (P.W.8) under Section 164 Cr.P.C. He has identified his signature (Ext.4) on 9.12.2011. On 10.12.2011, he recorded the statement of P.W.5, P.W.6 and P.W.7 Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 15 under Section 164 Cr.P.C.
18. P.W.10 is also the Judicial Officer, who has held the T.I.P. on 10.12.2011 and Rabindra Singh (P.W.8) had identified the accused Bhola Prasad and Krishna Yadav @ Mama. He has also identified both of them in the court. The T.I.P. chart has been marked as Ext.5 and 5/1. In his cross-examination, he has stated that the accused had been mixed with other person of the same age and height.
19. P.W.11 is the Block Development Officer, who has held the T.I.P. on 13.12.2011 at the instance of C.J.M. and Jarnail Singh (P.W.13) had identified his mobile set. The T.I.P. chart has been marked as Ext.6. In his cross-examination, he has stated that altogether 10 mobiles of the same company had been put during the T.I.P.
20. P.W.12 is also a Judicial Officer, who has recorded the statement of Jarnail Singh (P.W.13), son of Dilbagh Singh under Section 164 Cr.P.C. and he has identified his signature as Ext.4/4 and the signature of Jarnail Singh as Ext.4/5. In his cross-examination, he has stated that Jarnail Singh was not known to him prior to that.
21. P.W.13 Jarnail Singh is also the victim of the occurrence. He has stated that on 22/23.11.2011 he talked to Krishna Yadav @ Mama that he had no time to install the rolling machine, but Krishna Yadav was telling that he would get full money. Thereafter Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 16 he became ready on 26.11.2011. He started for Ambala Cant and reached at Gorakhpur on 27.11.2011. Thereafter by another train, he came to Bettiah and Krishna Yadav asked whereabouts of P.W.13, who replied that he reached at the Bettiah Station. At the instance of Krishna Yadav, he went to the Station Chowk. Krishna Yadav with three persons offered tea and snakes. He has identified Krishna, Chandeshwar, Upendra and Bhola in the court. He has further stated that they took him on a Scorpio vehicle. After one and half hour journey, P.W.13 asked about the plant. Thereafter, Upendra put pistol on his temporal and he was taken to the forest. He was tied with Shisham Tree. Three more persons came there, who has been identified as the accused Ravi, Mukti and Dasrath. The accused travelled him during night in the field and took him in the sugarcane field and tied him by rope. Bhola was with him for a day. Thereafter, he did not meet him. Accused Ravi came to him and snatched bag and mobile of P.W.13. After 2-3 days Upendra demanded Rs.25 lacs as ransom on the mobile no.9729733305 of his wife which was given by him as asked by the accused. The accused were gossiping that they had also kidnapped a Sardar Ji of the Punjab and demanded Rs.25 lacs as ransom which would be given to them and why she was making late in paying ransom. He has further stated that during kidnapping Mukti and Dasrath were also living with him. Both of them were Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 17 gossiping that pressure of the police has been intensified and both of them left him after tying him. An old man of the village came to him and untied him. He narrated about the occurrence to him who told that he would see him off at Bagha and he would go by train during night failing which the accused would kill him. He boarded in the train and he went to his house. He has further stated that he went to the local police station and narrated about the occurrence. Thereafter, the police came to his house and he went to Bettiah with the police on 11.11.2011. His statement was recorded in the court under Section 164 Cr.P.C. He has identified his signature (Ext.4/5). He has also identified his mobile. In his cross-examination, he has stated that prior to the occurrence, he was not identifying Krishna Yadav who had identified himself as the contractor. He has further stated that he had also not seen the accused prior to the occurrence. He does not know the name of the old man. After getting himself released, he went to Bagha Station and boarded in the train at midnight. He went to his house to save his life. He has further stated that the accused were talking themselves and disclosing their names as Bhola and Upendra.
22. P.W.14 is the Investigating Officer. He has stated that on 6.12.2011, S.I. Kamal Kishore Chaudhary (P.W.4) gave information that in Bettiah Town P.S. Case No.592 of 2011 he was was appointed as Investigating Officer by the order of the Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 18 Superintendent of Police. He has proved the formal FIR (Ext.7). He took the re-statement of the informant (P.W.4) and went to the Confidential Section of the office of Superintendent of Police and requested to give the call details and town location of the mobile no.9878633782 of Rabindra Singh (P.W.8) and later on, he met the Superintendent of Police. The location of the kidnapped Rabindra Singh was detected. A Special Task Force was constituted. He has identified the Call Details Report received from the Confidential Section of the S.P. Office (Ext.8). He has given the details about the number of calls, outgoing on the mobile no.9878633782 mobile of Rabindra Singh. He has also stated that it appears from the Call Details Report that 58 calls have been made on the mobile no.9878433782 at the house of Rabindra Singh and the location of the mobile of Rabindra Singh was found at Pokhraha Bazar. He has further stated that he came to know that IMEI No. of mobile phone of the victim Rabindra Singh (P.W.8) was 359070045562780 and the mobile SIM of the victim Rabindra Singh (P.W.8) has been used on mobile phone bearing IMEI Nos. (i) 352450043390630 (ii) 910578308942610 and (iii) 9105783008942600 (as per Ext.8) (the detail number of incoming and outgoing has been mentioned in paragraph 9 of the impugned judgment). In his cross-examination, he has stated that on the basis of the mobile number, the name and Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 19 address of the persons holding the mobile was also located and accordingly, raids were made at different places showing the tower location. This witness has given the details about the location and on the basis of which arrest was made of the accused appellants. On comparative study of Call Details Report, it appears that all the accused were in the contacts of each other. He has also stated that he has got recorded the statement of witnesses under Section 164 Cr.P.C. before the learned Magistrates. In paragraph 40, he has stated that for the first time, he came to know from the confessional statement of the accused Krishna Yadav that Jarnail Singh has also been kidnapped by the same group of accused. The confessional statement of Krishna Yadav was recorded on 7.12.2011. He received the confessional statement of the accused Upendra Chaudhary on 8.12.2011 and recovered the mobile phone of the victim Jarnail Singh (P.W.13) from the possession of accused Ravi Mahto. The mobile phone of the victim Rabindra Singh (P.W.8) was recovered from the appellant Bhola Pd. Kushwaha and the mobile phone used in the occurrence has been recovered from the possession of accused Krishna Yadav. He has further stated that Jarnail Singh (P.W.13) and Rabindra Singh (P.W.8) were kidnapped separately and the place of their kidnapping is different. He has denied the suggestion of the accused that on the basis of the forged documents the accused have been falsely Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 20 implicated in this case.
23. D.W.1 has stated that the accused Upendra Chaudhary and Chandeshwar Sah are his co-villagers. The accused Upendra Chaudhary was arrested from his shop by the police on 6.12.2011 at 11.00 A.M. and in the same night, Chandeshwar Sah was arrested. In his cross-examination, he has stated that at the time of arrest, he was in the shop of Upendra Chaudhary. Chandeshwar Sah was arrested from his house at 11.00 P.M. and he got information on 7.12.2011. He has also stated that no one went to the police station to search the arrested person.
24. D.W.2 has stated that the accused Mukti Narayan Chaudhary was arrested on 6.12.2011 in the midnight in his presence. Nothing was recovered from his possession.
25. The learned counsel for the appellants has submitted that the FIR is cryptic in complete, as such, no case should have been lodged on its basis. He has further submitted that the FIR has been lodged on the basis of the telephonic message, as such, it should have not been treated as FIR. In support of his contention, he has referred to a decision in the case of Dhananjoy Chatterjee Vs. State of West Bengal reported in (1994) 2 Supreme Court Cases 220. He has also referred to a decision in the case of Damodar Vs. State of Rajasthan reported in (2004) 12 Supreme Court Cases 336.
Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 21
26. In this case, a written information has been addressed to the S.H.O. Bettiah Town Police Station by the S.I. Kamal Kishore Chaudhary (P.W.4), Bettiah Town Police Station. The source of the information has been received from Rajendra Singh (P.W.7). It appears from the reading of the written report, which is the basis for the lodging of the FIR is quite clear and it is not vague nor indefinite, as such, the written report submitted by P.W.4 has rightly been treated as the FIR.
With great respect, in my opinion, the aforesaid decisions do not help the appellants in the facts and circumstances of this case.
27. In the case of Vishwanath Gupta Vs. State of Uttaranchal reported in (2007) 11 Supreme Court Cases 633, it has been held that the case can be proceeded at three places where the cause of action has arisen. In that case, the case was instituted on the basis of the written information of Sub-Inspector Shyam Nath Pandey of police station Haldwani of District Nainital under Section 364 A I.P.C. on the basis of the news item published in the Dainik Jagaran, as such, it can be held that the information received from any source either the newspaper or the telephonic message, the police officer can submit the written report to the police station on the basis of which case can be registered.
Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 22
28. The next contention of the learned counsel for the appellants is that there is delay in lodging the FIR. The date of occurrence is 28.11.2011, whereas, the FIR has been lodged on 6.12.2011 and not any plausible and logical explanation has been given for it. As such, the prosecution case should not be believed. In support of his contention, he has referred to a decision in case of Budh Singh and Ors. Versus State of U.P. reported in (2006) 9 Supreme Court Cases 731.
29. It appears from this decision that the FIR was lodged on 13.04.1992 and it was received by the Judicial Magistrate only on 18.04.1992 and there was no plausible explanation for sending the FIR to the learned Magistrate and the learned trial court had held that there was possibility of FIR being ante-timed sustainable since although the number of FIR was mentioned other details were lacking.
30. In the case in hand, the FIR has been lodged at Bettiah Town Police Station Case No.592 of 2011 dated 6.12.2011 and the FIR has been received by the learned Chief Judicial Magistrate on 9.12.2011. It appears from the case in hand that the victim for which the case was lodged is hailing from the state of Punjab and the contents of the FIR has been recorded on the basis of telephonic message of Rajendra Singh (P.W.7) who has given Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 23 information from Baranari, P.S.- Aslali, District- Ahmedabad in the District of Gujarat. There is little chance of any manipulation in the FIR. The prosecution has explained the delay that on 6.12.2011, the Officer-in-charge of Bettiah Town Police Station was on duty on the occasion of Muharram and he was away from the police station. Due to engagement in Muharram, the FIR could not be sent in due time.
31. It appears from the facts and circumstances of the case that the prosecution has explained the delay and it has rightly been accepted by the learned trial court.
32. It has also been contended by the learned counsel for the appellants that the criminal conspiracy and common intention have not been proved, as such, the conviction of the appellants is not proper.
33. He has further submitted that only Bhola and Krishna were put on T.I.P. though all the accused were in custody, but no identification parade was made with respect to other accused.
34. It appears that Krishna and Bhola have been put on Test Identification Parade and both of them have been identified by Rabindra Singh (P.W.8) on 10.12.2011 in the Mandal Kara, Bettiah. The accused Ravi Mahto has also been put on T.I.P. and he has been identified by Jarnail Singh (victim P.W.13). He has also identified his mobile which was recovered from the possession of Ravi Mahto. Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 24 Three mobiles have been recovered from the possession of the accused Mukti Narayan Chaudhary which have been used for the purpose of demanding ransom vide Ext.11/3. P.W.13 has also made his statement before the learned Judicial Magistrate under Section 164 Cr.P.C. (Ext.4/4) from which it appears that on the telephone call of Krishna Yadav, he went to Bettiah from where Krishna Yadav took him on the Scorpio vehicle. Three persons were also sitting in the vehicle who were named as Upendra, Chandra Shekhar and the name of one another could not be known. After his journey for one and half hour, the forest area started. One person namely Upendra has pointed pistol on his head and took him to the Shisham tree where his hand and legs were tied. Two persons also came there and their names were Mukti Narayan Chaudhary and another was Dashrath. Both of them travelled during the night and after 4-5 days on Saturday, he got the contact on mobile with the members of his family. He has also stated that Upendra demanded Rs.25 lacs as ransom and this message was also conveyed to his wife failing which he would be killed. The accused were gossiping that one more Sardar Ji of Punjab has been kidnapped and Rs.25 lacs had also been demanded from the members of his family, who were likely to come with money. After some time, they were gossiping that the pressure of police has been made, as such, he should be killed and one of them told that his killing will not Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 25 yield anything, as such, he was left alone in the evening on 7.12.2010 in the field itself. An old man came there who managed to reach him to Bagha from where he proceeded to his house by train and this fact has also been stated by P.W.13 while deposing before the learned trial court. As such, it cannot be said that the accused other than Krishna and Bhola were identified for the first time in the court by the prosecution witnesses.
35. It appears from the statement of P.W.13 Jarnail Singh under Section 164 Cr.P.C. as well as from the deposition of P.W.13 in the court on 11.01.2012 that after his kidnapping, he was kept in the Forest and also in the sugarcane field and did not make any contact with the members of his family for 2-3 days, as such, he remained without any trace and later on when the case regarding the kidnapping of Ravindra Singh was lodged by P.W.4, Special Task Force was constituted, which made raids at different places and due to apprehension and pressure of the police, the victim Jarnail Singh was left in the forest. Later on, he was rescued by an old man and according to his advice to save his life, he went to his house by boarding in the train.
36. It appears from the prosecution evidence that kidnappers were common in both the cases, rather, it appears from the evidence and the confessional statement of the accused that prior to Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 26 this occurrence, they had also kidnapped one Yogendra Singh and had kept in the sugarcane field, but due to apprehension of the police and the cutting away crops of sugarcane, he was let loose. It further appears that the appellants are the members of a gang which is indulged in kidnapping the persons for getting ransom.
37. It has been further submitted that Upendra Choudhary has been falsely implicated in this case by the police due to enmity with the police as Surendra Choudhary, uncle of Upendra Chaudhary has earlier been falsely implicated in this case by P.W.4 Kamal Kishore Chaudhary and his prosecution was quashed by the Patna High Court. As such, the police had the grudge against the family of Surendra Chaudhary and Upendra Chaudhary has been falsely implicated in this case.
38. So far as the contention of the learned counsel for the appellants regarding enmity of Upendra Chaudhary and Mukti Narayan Chaudhary with the S.I. of Police Kamal Kishore Chaudhary (P.W.4) is concerned, it appears that P.W.4 is the informant of this case on the basis of message received from Rajendra Singh (P.W.7) against one Krishna Yadav @ Mama only, the case was registered only against Krishna Yadav @ Mama. Kamal Kishore Chaudhary (P.W.4) was neither the Officer-in-charge nor the Investigating Officer in this case. The names of both the persons have also appeared Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 27 in the confessional statement of co-accused as well as in the statement of P.W.13 Jarnail Singh, victim of the occurrence. As such, informatory petition dated 29.12.2010 (Ext.A) and Informatory Petition dated 2.07.2011 filed by Mukti Narayan (Ext.B) do not help them. During investigation, Mukti Narayan Chaudhary and Upendra Chaudhary have been arrested by the Special Task Force of Police on 6.12.2011 and thereafter, Reena Devi, wife of Mukti Narayan Chaudhary has filed a petition (Ext. C) and similarly Rameshwar Chaudhary, father of Upendra Chaudhary has filed a petition dated 8.12.2011 (Ext. E) regarding their arrest by the police and since then, they have not returned. Both these petitions also do not help the appellants.
39. Lastly, it has been submitted by the learned counsel for the appellants that there has been excessive punishment. Death sentence and life imprisonment do not commensurate with crime in its totality and it does not come within the purview of rarest of rare case.
40. It appears that the prosecution witnesses are quite natural and their evidence are convincing. The victims have given description as to how they were kidnapped by the accused Krishna Yadav on the temptation of getting employment in establishing a rolling machine at Bettiah and when the victim Ravindra Singh Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 28 (P.W.8) came to the Bettiah railway station, he was taken to lonely place and kept in the Forest and sugarcane field and the other victim Jarnail Singh (P.W.13) has also given vivid description as to how he was called by the appellant Krishna Yadav and was taken in the sugarcane field and the forest for getting ransom by the appellants.
41. It also appears that Krishna Yadav is the gang leader consisting of several persons including the appellants. The evidence of P.Ws. 1, 2, 3, 5, 6, 7, 8 and 13 are quite natural and convincing and their evidence has rightly been relied upon by the learned trial court.
42. Considering the facts and circumstances of the case, in my opinion, the conviction and sentence of the appellants namely, Mukti Narayan Choudhary, Upendra Choudhary, Ravi Mahto, Dashrath Chauhan and Chandeshwar Sah are justified and it requires no interference by this Court. As such, we do not find any merit in their appeals. Their appeals are dismissed.
43. Death Reference Case No.1/2012 has been referred by the learned trial court under Section 366 Cr.P.C. for confirmation of the death sentence with regard to accused Krishna Yadav @ Bigga Mahata @ Mama @ Mulla and Bhola Prasad Kushwaha to this Court for confirmation. In the opinion of the learned trial court, both these convicts have committed brutal and inhuman acts to the victims and Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 29 both the victims have been tortured by them, as such, they required extreme penalty.
44. The extreme penalty of death has been considered in a number of cases and in the recent decision also, the Hon'ble Supreme Court has considered the matter in case of Neel Kumar Vs. State of Haryana reported in (2012) 5 Supreme Court Cases 766 and has considered a number of cases on this point. It has been held in paragraph 32 of the judgment as follows:
"The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the offender also require to be taken into consideration along with the circumstances of the crime for the reason that life imprisonment is the rule and death sentence is an exception. The penalty of death sentence may be warranted only in a case where the court comes to the conclusion that imposition of life imprisonment is totally inadequate having regard to the relevant circumstances of the crime. The balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances before the option is exercised".
45. In the case of Neel Kumar Vs. State of Haryana (supra), a number of decisions have been considered by the Hon'ble Supreme Court. In case of Haresh Mohandas Rajput Vs. State of Maharastra, it has been observed in paragraph 34 which is as follows:
"20. The rarest of the rare case comes when a Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 30 convict would be a menace and threat to be harmonious and peaceful coexistence of the society. The crime may be heinous or brutal but may not be in the category of " the rarest of the rare case". There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The accused may be menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of community and shock the collective conscience of the society. Where an accused does not act on any spur-of-the-moment provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fibre of the society e.g. crime committed for power or political ambition or indulging in organized criminal activities, death sentence should be awarded".
46. Thus, it is evident that for awarding the death sentence, there must be existence of aggravating circumstances and the consequential absence of mitigating circumstances. As to whether death sentence should be awarded, would depend upon the factual scenario of the case in hand. The instant case is required to be examined in the light of the aforesaid settled legal propositions. Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 31
47. In the facts and circumstances of the case, we find that there is no reason to disbelieve the above evidence and circumstances nor is there any reason to doubt the commission of offence by the appellants. So far as the sentence part is concerned, in view of the law referred to hereinabove, we are of the considered opinion that the case in hand does not fall within the rarest of rare cases. However, considering the nature of offence, the appellants cannot be awarded a lenient punishment.
48. In the case of Ramraj Vs. State of Chhattisgarh reported in (2010) 1 SCC 573 : (2010) 1 SCC (Cri) 842 : AIR 2010 SC 420, the Hon'ble Supreme Court while setting aside the death sentence made a direction that the appellant therein would serve minimum period of 20 years including remissions earned and would not be released on completion of 14 years' imprisonment.
49. Thus, in the facts and circumstances of the case, we set aside the death sentence and award life imprisonment to both the appellants Krishna Yadav and Bhola Prasad Kushwaha. Both the appellants must serve a minimum of 20 years in jail excluding remissions earned and would not be released on completion of 14 years imprisonment.
50. In the result, death reference is negatived.
Accordingly, the Cr. Appeal (D.B.) No.361/2012 filed by Bhola Patna High Court D. REF. No.1 of 2012 dt.28-09-2012 32 Prasad Kushwaha and Cr. Appeal (D.B.) No.382/2012 filed by Krishna Yadav @ Bigga Mahto @ Mama @ Mulla are dismissed with the above modification in their sentence.
(Amaresh Kumar Lal, J)
Shyam Kishore Sharma, J :- I agree.
(Shyam Kishore Sharma, J)
Patna High Court, Patna
Dated the 28th of September, 2012
A.F.R./V.K. Pandey/-