DEATH REFERENCE No.17 OF 2007
***
STATE OF BIHAR———————————-APPELLANT
Versus
1. BISHWANATH SINGH, SON OF LATE SARVAJEET SINGH
2. PARVATI DEVI, WIFE OF LATE JHURI KAHAR
BOTH RESIDENTS OF VILLAGE KARUP, P.S. KARGAHAR,
DISTRICT ROHTAS ——————————RESPONDENTS
With
CR. APP (DB) No.1463 of 2007
RAM PRIT SINGH, SON OF LATE SARVAJEET SINGH, RESIDENT OF
VILLAGE KARUP, POLICE STATION KARGAHAR, DISTRICT
ROHTAS —————————————–APPELLANT
Versus
THE STATE OF BIHAR—————————–RESPONDENT
With
CR. APP (DB) No.1480 of 2007
RAJU SINGH @ RAJEEV RANJAN SINGH @ RAJEEV RANJAN, SON OF
RAMPRIT SINGH, RESIDENT OF VILLAGE KARUP, P.S. KARGAHAR,
DISTRICT ROHTAS———————————APPELLANT
Versus
STATE OF BIHAR———————————RESPONDENT
With
CR. APP (DB) No.1481 of 2007
PRADEEP KUMAR @ PRADEEP KUMAR SINGH, SON OF VISWANATH
SINGH RESIDENT OF VILLAGE KARUP, P.S. KARGAHAR, DISTRICT
ROHTAS —————————————–APPELLANT
Versus
STATE OF BIHAR———————————RESPONDENT
With
CR. APP (DB) No.1499 of 2007
1.PARVATI DEVI, WIFE OF LATE JHURI KAHAR
2.BISHWANATH SINGH, SON OF LATE SARVAJEET SINGH,
BOTH RESIDENTS OF VILLAGE KARUP, P.S. KARGAHAR,
DISTRICT ROHTAS ——————————-APPELLANTS
Versus
STATE OF BIHAR———————————RESPONDENT
***
Reference made by Sri Umesh Chandra Mishra, Additional
District & Sessions Judge (Fast Track Court No.5), Rohtas
at Sasaram vide letter no.101 dated 4.12.2007 and Criminal
Appeals against the judgment dated 27.11.2007 and order
dated 30.11.2007 in Sessions Case No.251/1999/Trial
No.83/2007
***
For the Appellants: Mr. Kanhaiya Prasad Singh,
Sr. Advocate with
2
M/s Ashutosh Kumar, Atal Bihari &
Jyotasana, Advocates
For the State : Mr. Lala Kailash Bihari Prasad,
Sr. Advocate
For the Informant : Mrs.Anjana Prakash, Sr. Advocate with
Mr. Rakesh Kumar Sinha, Advocate
***
P R E S E N T
THE HON’BLE JUSTICE SMT. MRIDULA MISHRA
THE HON’BLE MR.JUSTICE SYED MD.MAHFOOZ ALAM
***
Mridula Mishra, J. Death Reference No.17 of 2007 has been referred by
the trial court to the High Court for confirmation of
death sentence awarded by Sri Umesh Chandra Mishra,
Additional District & Sessions Judge (Fast Track Court
No.5), Rohtas at Sasaram to appellants, namely, Parvati
Devi & Bishwanath Singh in Sessions Case No.251/1999
/Trial No.83/1999 for the offence under Section 302 of the
Indian Penal Code (in short, “I.P.C.”). Besides their
conviction and sentence under Section 302 of the I.P.C.,
these two appellants have also been convicted under
Section 364/34 and Section 201/34 of the I.P.C. but no
separate sentence has been awarded to them since they have
been awarded death sentence. Other criminal appeals have
also been preferred against the same judgment and order of
conviction and sentence by Ram Prit Singh (Cr. Appeal No.
1463 of 2007), Raju Singh @ Rajeev Ranjan Singh @ Rajeev
Ranjan (Cr. Appeal No.1480 of 2007) and Pradeep Kumar @
Pradeep Kumar Singh (Cr. Appeal No.1481). For their
conviction under Sections 302/34, under Section 364/34 and
under Section 201/34 of the I.P.C. all these appellants
3
have been sentenced to rigorous imprisonment for life and
fine of Rs.5000/-, for conviction under Section 363/34
they have been sentenced to R.I. for ten years and fine of
Rs.3000/- as well as for their conviction under Section
201/34 of the I.P.C. they have been sentenced to R.I. for
three years and fine of Rs.1000/-. In case of default in
payment of fine the appellants have been directed to
undergo simple imprisonment for six months and three
months, respectively.
2. Nandeshwar Singh (P.W.7) is the informant of
Kargahar P.S. Case No.77/95. His fardbeyan was recorded by
the Officer Inchrge of Kargahar P.S., Sri Ram Bharosha Das
(P.W.11) on 6.6.1995 at 8.15 A.M. The fardbeyan discloses
that the marriage of Arvind Singh younger brother of the
informant was going to be solemnized on 6.6.95. On this
occasion, his relatives and family members had assembled
in the evening of 5.6.95 and feast was going on in the
night of 5/6.6.1995. The wife of the informant Dahrmsheela
Devi (P.W.8) had made her son Vishal aged about two and
half years, sleep on the roof of the house after feeding
him milk and at least 6-7 children of other family members
were also sleeping on the roof of the house of the
informant. At about 11 P.M. when P.W.8 wife of the
informant again went to see her child she did not find him
on the roof of the house, and search was made here and
there; then she informed the informant but the child
Vishal aged about two and half years was not found. The
fardbeyan of the informant discloses that he suspected
that some unknown persons had kidnapped his child Vishal
with intention to kill him. On the basis of aforesaid
fardbeyan, Kargahar P.S. Case No. 77/95 was registered
4
under Section 364 of the Indian Penal Code. The fact of
the case discloses that subsequently, on the same day i.e.
6.6.1995 at 6 O’ clock in the evening, the dead body of
the son of the informant, namely, Vishal was found and
Sections 302 and 201 of the I.P.C. were added.
3. The police, who arrived at the place of occurrence,
during course of investigation, found the dead body of
child lying on the platform of Shiv Mandir near the well.
It was informed to the Investigating officer by the
villagers that the dead body was found in a well and it
was taken out. The inquest report prepared by the
Investigating Officer does not show that the dead body was
taken out in presence of the Investigating Officer rather
it was already on the platform of the Shiv Mandir. The
dead body of the child was sent for post mortem
examination. The post mortem was conducted by Dr. Srikant
Prasad, (P.W.10, who was posted as Assistant Professor of
Skin & V.D., N.M.C.H, Patna. The post mortem report which
has been marked as Ext.3 discloses that the dead body was
received for post mortem at 9.45 A.M. on 7.6.1995. It was
first seen by P.W.10 at 10.30 A.M. on the same day and
post mortem commenced at 11 A. M. on 7.6.1995. At the time
of post mortem examination it was found that the dead body
is of male child aged about two and half years. No rigor
mortis could be ascertained. The face of the deceased was
swollen, abdomen disturbed, greenish coloration of skin on
the face and abdomen was found. Blood was found oozing
through nostrils but no external injury was found on the
dead body. Since on dissection, the cause of the death
could not be ascertained by P.W.10, as such the viscera
was presented for forensic examination and it was sent to
5
the Forensic Science Laboratory. The report of Forensic
Science Laboratory has been marked as Ext.6. Ext.6
discloses that it was not a case of poisoning as no
metallic, alkaloidal, glycosidal, pesticidal or volatile
poison could be detected in the dark-brown fluid.
4. P.W.10 doctor, who conducted post mortem examination
of the dead body, has stated in his deposition that since
cause of death, in his opinion, could not be ascertained,
viscera was preserved for forensic examination. He
assessed that time elapsed since death to post mortem
examination as within 32 to 72 hours. P.W.10 has further
stated that time in vanishing the entire rigor mortis was
complete within 36 hours. It starts disappearing from six
hours of death. Since, in sum and substance, the evidence
of P.W.10 is that cause of death could not be ascertained,
as such he could not mention – whether it was a case of
homicidal death. Considering Exts. 3 and 6 and the
evidence of the doctor (P.W.10)), it is difficult to hold
that it was a case of homicidal death.
5. The prosecution, in order to prove charges framed
against the accused persons, examined altogether 11
witnesses. The evidence of the doctor (P.W.10) has already
been discussed above. P.W.1 Md. Ahsamuddin Khan, who is a
formal witness, has proved Ext.1 formal F.I.R; other
witnesses examined by prosecution are P.W.2 Amrendra
Singh, P.W.3 Shyamji Singh, P.W.4 Harendra Singh, P.W.5
Shankar Dayal Singh, P.W.6 Chandradeo Singh, P.W. 7
Nandeshwar Singh and P.W.8 Dharmsheela Devi. P.W.7 and
P.W.8 are parents of deceased, the unfortunate boy Vishal.
P.W.7 is informant of this case.
6
6. P.W.2 has admitted in paragraphs 2 and 10 of his
evidence about his relationship with the informant. P.W.3
has also admitted in paragraphs 2 and 21 of his evidence
about his relationship with the deceased as well as the
informant. P.W.8 is none else than mother of the deceased
and wife of the informant. P.W.4 has also admitted his
relationship with informant in paragraph 6 of his
evidence. P.W.5 Shyamji Singh has admitted his
relationship with the informant and the wife of the
informant. He is maternal uncle of P.W.8. P.W.4 is cousin
of the informant. P.W.4 has admitted in paragraph 6 of his
deposition that he is related as brother of the informant.
P.Ws. 5 and 6 are own brothers. They also have admitted in
paragraph 6 and paragraph 1, respectively, of their
evidence about their relationship. Their evidences go to
show that they are very closely related to the informant.
P.W.7 is father and P.W.8 is the mother of the deceased.
7. The first contention of the counsel appearing for the
appellants is that this is a case in which there is no
direct evidence either on the point of taking away the
victim from the roof of the informant’s house by anyone or
giving the child to the accused persons by Parwati Devi
who has been awarded death sentence for her conviction
under Sections 302 and 364/34 of the Indian Penal Code. No
other person than family members closely related to the
informant has come forward to support the case of the
prosecution on the point of circumstance to show
involvement of the accused persons. Even the
circumstances, which have been brought by the prosecution
by way of evidence of the witnesses, suggest that there
are so many missing links in between the alleged taking
7
away of the victim boy from the roof and finally in
recovery of the dead body on the next day. There is
admitted enmity between the witnesses and the accused
persons. In paragraph 11 of his evidence, P.W.2 has
admitted enmity with appellant Bishwanath Singh. P.Ws. 7
and 8 have admitted enmity in paragraphs 10 and paragraph
7 of their respective evidence. All these witnesses have
admitted that Bishwanath Singh was made accused in a
criminal case under Section 377 I.P.C. Victim was Jitendra
Singh and P.W.7 was the informant of the case. Other
persons were named as witnesses in this case. In that
case, Bishwanath Singh was finally acquitted of the
charge. Subsequently, Bishwanath Singh’s son was killed in
which criminal case was instituted by Bishwanath Singh and
these witnesses were named as accused in the case.
8. Mr. Kanhaiya Prasad Singh, Senior Advocate appearing
for the appellants has stated that in the given background
of the case where all the prosecution witnesses are
partisan and closely related to each other and that also
when they have deposed in the background of admitted
enmity with the accused persons, how reliance can be
placed on their evidence for conviction of the appellants,
when circumstances have not been proved by them, beyond
reasonable doubt.
9. The evidence of P.W.2 is that in the evening of
5.6.1995 pre-marriage celebrations were being solemnized
of his cousin Arbind Singh. In that connection he went on
the roof of Nandeshwar Singh. He had gone there to spread
carpet along with Rameshwar Singh to make space for
dinner. Children who were sleeping at that time on the
eastern side of the roof of the house were brought to
8
the western sides. Carpet was being spread over the roof
for the feast of the guests. After completion of the Ist
round of feast, Parwati Devi had removed the plates for
cleaning the ground. She continued to do her work, for
sometime, but subsequently, when searched, she was found
missing. Dinner completed at 11 P.M. and then mother of
Vishal came on the roof of the house and searched him, but
he was not found. She informed her husband P.W.7 about
missing of the child. P.W.7 along with others started
searching the child here and there but he was not found.
It has been admitted by P.W.2 that on disappearance of the
child, they had suspicion against Bishwanath Singh and
others, who are inimical to the informant but out of fear,
their names were not disclosed, even before the police.
Evidence of P.W.2 is that in the night of occurrence,
there were near about 100 persons assembled for dinner.
This has been admitted by P.W.2 that he came down from the
roof only when dinner completed at 11 O’ clock but till
then he had no knowledge about the disappearance of the
child. It has also come in the evidence of this witness
that the place from where the dead body of the child was
recovered, is also within the temple premises. He had also
admitted that he did not disclose names of the accused
persons to any one due to apprehension that the child
might be killed.
10. P.W.3 Shyamji Singh is the maternal uncle of P.W.8
i.e. mother of the deceased. His evidence is that at about
9.30 P.M. he had gone to ease himself. When he was
returning back he saw Bishwanath Singh, Ramprit Singh,
Raju Singh and Pradeep with a child on the shoulder of
Bishwanath Singh. They were going towards north of the
9
village. He enquired from Bishwanath Singh as to where he
was going and he replied that the child is being taken for
some treatment. Thereafter he came at the Dalan of the
informant (P.W.7), took his dinner and after taking dinner
he went to sleep. When he was at his house he heard the
alarm that Vishal has disappeared. He has admitted in his
evidence that he took dinner in the last batch near about
11 O’ clock. After coming to his house, he did not meet
anyone. On the next day in the morning he remained at his
residence till 11 O’ clock and only when Investigating
Officer came he went at the door of Nandeshwar Singh. This
witness, who is maternal uncle of P.W.8 and very close to
the informant, did not go to enquire about the child till
11 A.M. on the next date even after hearing the rumour
about disappearance of the child and also having seen
accused Bishwanath Singh with a child at 9 O’ clock. He
did not disclose this fact to anyone that he has seen
Bishwanath going with a child. In court he has not
disclosed that the dead body of the child which was
discovered on the next day in the evening, was of the same
child whom he had seen on the shoulder of Bishwanath
Singh.
11. P.W.4 Harendra Singh is another eye-witness who had
also claimed to have seen Bishwanath and other accused
with a child in the night of occurrence. P.W.4 has deposed
that on 5.6.1995 at 9.00 P.M. when he was going to ease
out, he saw Ramprit Singh, Bishwanath Singh, Raju Singh
and Pradeep Singh going towards north in haste. Bishwanath
Singh had a child on his shoulder. The child was wrapped
in a cloth. On that very night at about 11 O’ clock alarm
was raised regarding disappearance of the child of
10
Nandeshwar Singh. On the next day the dead body of the
child was recovered from well in his presence. The Inquest
report was prepared by the Sub-Inspector on which he and
one Sant Bilash Singh put their signatures, (Exts. 2 and
2/4). The evidence of this witness P.W.4 is that
Nandeshwar Singh is related to him as brother, as per
village relationship. He went to the house of Nandeshwar
Singh at 8 O’ clock to attend the feast. Thereafter he
came from his house. In paragraph 1 of his deposition
P.W.4 has stated that he saw Bishwanath Singh and others
at about 9 P.M. with the child, when he was going to ease
out. This goes to show that after taking dinner he went to
ease out and seen Bishwanath and others with child. P.W.4
has further deposed that he had seen the accused persons
in the flash of the torch light. What makes his statement
doubtful that even though he came to know about the
disappearance of the child in the night itself he did not
go to the house of accused persons to verify as to who was
that child and where the child was taken away. He did not
disclose this fact to anyone that he had seen Bishwanath
Singh carrying a child. In paragraph 11 he has stated that
in that very night at 11.30 P.M. he met Nandeshwar Singh
(P.W.7) but he did not disclose this fact to him. In
paragraph 12 of his deposition he has stated that for the
first time he made such statement before the Investigating
Officer after one and half months of the occurrence. In
paragraph 6 P.W.4 has admitted that during this period he
has remained in the village itself. This witness has also
not stated that the child whose body was recovered on the
next day was same whom he saw in the company of the
accused. In sum and substance, on consideration of the
11
evidence of P.Ws. 3 and 4 it transpires that the identity
of the child who was seen in the company of the accused
persons has not been established.
12. So far as P.W.5 Shankar Dayal Singh is concerned,
his evidence is that till 11 O’ clock in the night of
5.6.1995 he was on the roof of Nandeshwar Singh where
child was sleeping. In the night when Parvati was not
found on the roof of the house, he went to her house
because she had left without taking meal. His evidence is
that when the dinner was going on, Parvati Devi was
frequently coming from downstairs to upstairs because she
was engaged for cleaning work. Except this, there is
nothing in the evidence of P.W.5 to connect Parvati with
kidnapping of victim child.
13. P.W.6 Chandradeo Singh in paragraph 10 of his
evidence has admitted that in the night of the occurrence
no one had seen the child being taken away by anyone. It
has been admitted by him that immediately after
disappearance police was not informed. This question was
put to him as to whether child was on the roof when he had
gone to take the meal his answer was that he did not
notice it. So there is no specific evidence in deposition
of P.W.6 that either he had seen Parvati Devi taking away
the child or doing any suspicious act to connect her with
disappearance of the child, except that in between the
completion of dinner she disappeared. For the first time
disappearance of child was noticed when P.W.8 had gone to
feed milk to her child, till then no suspicion was made
against Parvati that she kidnapped the child.
14. P.W.7 Nandeshwar Singh is the informant of this
case. His evidence is that till the dinner was finished no
12
one had taken notice of disappearance of the child. At 11
O’ clock in the night when his wife came on the roof for
feeding the child Vishal and he was not found, then only
search was made at several places. He has also admitted
that children sleeping in the eastern side of the roof of
the house were removed to the western side but it has not
been stated that Parvati, in any manner participated in
removing children from eastern to western side. The
evidence of P.W.7 is that Parvati, while on the roof was
collecting plates when dinner was going on. He has also
stated that since Parvati Devi without informing his
family members left the place, he had confirm opinion that
she had taken away the child and given him to Bishwanath
Singh, with whom he has enmity. P.W.7 has not stated in
his evidence that Parvati was seen either in lifting or
taking away the child and giving the child to the accused
persons or to any one in conspiracy with other accused.
There is no evidence to show that there was any
consultation in between Parvati and Bishwanath for
kidnapping of the child.
15. P.W.8 Dahrmsheela Devi, mother of the deceased is
also not specific on the point of kidnapping. She has
stated that she laid her son to sleep on the roof at 7 O’
clock in the night. Thereafter, she became engaged in
other works. Thereafter she went on the roof to feed the
child at about 11 P.M. and then only she detected that her
child was not present. She has stated that search was made
in the village in the night but has not disclosed the
places where search was made. From the evidence of P.W.8
as well evidence of P.W.4 and P.W.3 it transpires that in
spite of disappearance of a child, the normal activities
13
were going on in the family peacefully. P.W.8 has
admitted that on 6.6.95 in the evening Barat of his
bother-in-law went for solemnization of marriage, and
family members joined the Barat party.
16. Counsel for the appellants has submitted that the
evidence of P.Ws. 3 and 4 that they saw the accused
persons in the company of a “child” at 9 P.M. to 9.30 P.M.
in the night of 5.6.95 is not sufficient to fasten the
accused persons with the charge of Section 364 of the
Indian Penal Code for the reason that these witnesses have
not stated even in the court that the child with whom they
saw accused persons was the child who disappeared and
subsequently whose dead body was recovered from well.
Since identification of the child itself has not been
established, the accused persons cannot be held guilty of
kidnapping of the child whose dead body was recovered on
the next day. For roping the accused persons with the
charge of Section 364/34 of the Indian Penal Code, it was
essential that identity of the kidnapped child should have
been established. It has been submitted by the counsel for
the appellants that this is a case where there is no
direct evidence either on the point of kidnapping or on
the point of murder of child Vishal. This is a case in
which conviction is based on circumstantial evidence. So
far as conviction under Section 302 of the I.P.C. is
concerned, for that there was no evidence on record as
none of the witnesses has stated that the appellants have
killed the child. The evidence of the doctor (P.W.10) as
well as Exts. 3 and 6 on record shows that the cause of
death was not ascertained. Unless it is proved that it was
a case of homicidal death in which the appellants
14
participated, they could not have been convicted under
Section 302 of the I.P.C. The trial court has convicted
the appellants merely on conjectures, surmises and
presumptions. There being no legal evidence to connect the
appellants with the death of the child, the judgment of
the trial court for their conviction under Section 302 of
the I.P.C. is against the evidence on record and such
judgment must be set side by this Court.
17. Counsel for the appellants has further submitted
that so far as Section 364 of the I.P.C. is concerned it
is based on circumstantial evidence. In a case of
circumstantial evidence, it is well settled that the
circumstance from which conclusion of guilt is drawn
should be fully proved and such circumstance must be
conclusive in nature. All the circumstances should be
complete and there should be no lacuna in the chain of
circumstance. The circumstances must be consistent and
pointing towards only hypothesis of the guilt of the
accused and are totally inconsistent with their innocence.
In the present case, there are many gaps in the chain of
the circumstances. The first gap is that no one had seen
Parwati Devi taking away the child. Second gap is that no
one had seen Parvati Devi either before or after the
occurrence in the company of the accused. No one had seen
Parvati giving child to any one or to accused persons.
The fact is that Parwati was arrested from her house on
the next day. This conduct of Parwati shows that she did
not have any knowledge about occurrence. A case which is
based on circumstantial evidence if there are so many
missing links to connect the accused with kidnapping of
15
the victim and finally with his murder, there cannot be
any conviction.
18. Mr. Lala Kailash Bihari Prasad, counsel for the
State has stated that the conduct of Parvati is first
circumstane to show her involvement in the disappearance
of the child. Parvati, as per evidence of the prosecution
witness and the prosecution case, was engaged for throwing
away the eaten-plates. She worked for some time and in the
mid way she disappeared without informing anyone. This
conduct indicates that both child and Parvati disappeared
simultaneously. It has further been submitted that this
circumstance against Parvati connects her with Bishwanath
Singh who was seen by P.W.3 and P.W.4 with a child. These
circumstances which surfaced in the evidence of
prosecution witnesses, were put to the accused persons
when their statement was recorded under Section 313 of the
Cr.P.C. but they failed to explain these circumstances.
Except simple denial no explanation came from the accused.
This is also a circumstance to connect them with crime.
19. I find that the circumstances on which reliance is
being placed by State Counsel were, in fact, not placed
before the accused when their statements were being
recorded under Section 313 of the Cr.P.C. This
circumstance was not put to Parvati Devi as to why she
left the place without informing family members, when she
was engaged for doing the cleaning work and throwing away
the eaten-plates. The circumstance which was put to the
accused at the time of recording statements under Section
313, Cr.P.C. was that they participated in killing of the
child though this circumstance has not come in the
evidence of any of the prosecution witnesses. None of the
16
prosecution witnesses have stated that they saw the
accused persons participating in the murder of the
deceased. In case, circumstance would have been legally
placed to the accused persons then only non-explanation
could have been taken as a circumstance against them.
Circumstance relied upon by State Counsel in order to show
their guilt, is insufficient and chain of circumstances is
not complete.
20. Mrs. Anjana Prakash, Senior Advocate, who appeared on
behalf of the informant, has based her submission on
motive. She has stated that in a case of circumstantial
evidence, motive of the accused persons plays a vital
role. On account of admitted enmity accused persons had
motive to commit offence. The enmity is so strong that
P.W.2, P.W.3, P.W.4 and P.W.5 were again made accused in a
subsequent case filed by Bishwanath because of this
motive, disappearance of the child connects the accused
with the alleged occurrence specially when P.Ws. 3 and 4
had seen Bishwanath Singh with the child in the night of
occurrence and immediately thereafter the child was found
missing in continuation of the chain of circumstances on
the next day the dead body was found. I do not find this
submission convincing for the reason that the motive or
enmity, if accepted, it cuts both ways. There can be
motive for false implication also.
21. Now the next question which arises for consideration
is whether it was a fit case in which death sentence could
have been awarded to Parvati and Bishwanath. Only
evidence which has come against appellant Parwati is that
she was engaged for cleaning and throwing away the eaten-
plates on 5.6.95. P.W.8 in her evidence has stated that
17
normally, she was not working as house-maid but for that
very day she was engaged for doing the cleaning work. This
is also a circumstance which raises suspicion regarding
presence of Parvati in the house on 5.6.95. Even if the
evidence of the prosecution witnesses is accepted that
Parvati was engaged for cleaning work, then the question
which falls for consideration is as to whether the fact
that she simply left the work without completing it, can
connect her with the kidnapping of the child as well as
for killing of the child. There is no eye-witness on this
point. It has come in the evidence of the prosecution
witnesses that Parvati was more than 50 years of age at
the time of occurrence and if there is such lapses
attributed to her – whether this can be considered as
circumstance to connect her with disappearance of the
child or alleged killing of the child. The evidence
against appellant Bishwanath Singh which connects him with
disappearance of the child is in deposition of P.W.3 and
P.W.4. P.W.3 is very much close to the informant and his
wife. He has even admitted that after he saw Bishwanath
Singh going with child and he remained in the house of
informant till 11 O’ clock, when alarm was raised
regarding disappearance he did not disclose this fact to
anyone. He came to his house, remained sitting in his
house on the next day till 11 A.M. For the first time on
the next date when he came to informant’s house, on
arrival of the I.O. he did not disclose this fact to
anyone. So far as P.W.4 is concerned, in the night when
he heard alarm he went to the house of the informant and
till 11.30 P.M. he remained in the company of P.W.7. He
did not disclose that he had seen the accused persons
18
carrying a child. He disclosed this fact for the first
time after one and half months that he had seen Bishwanath
Singh in the night of occurrence going with a child. How
relying on such evidence anyone can be convicted and
sentenced to death. I am conscious of the fact that for
proving the crime, it is not necessary that it must have
been seen being committed by witnesses but it is very much
essential that all the circumstances must be proved by
direct or ocular evidence by the persons who have seen
either full or any part of the commission of the
occurrence. What is required that if vital evidence is not
disclosed immediately, it creates doubt and the benefit of
this doubt always goes to the accused. Considering these
aspects of the matter, specially when the evidence is not
sufficient even for conviction, it cannot be held that the
accused persons could have been awarded death sentence. By
no stretch of imagination, present case on account of
fragile and scanty evidence can be brought in the category
of “rarest of the rare cases”. The circumstances are
tilted towards the innocence of the accused.
22. For the reasons aforementioned, I hold that the
prosecution has not been able to prove the charges framed
against the appellants either under Section 302 or 302/34
of the I.P.C. as well as under Section 364/34 of the
Indian Penal Code. Not being found guilty of the charges
framed against the appellants, they are acquitted of the
charges framed by the trial court. As a result, Death
Reference No.17 of 2007 is answered in the negative.
Criminal Appeal Nos. 1463 of 2007 (DB), 1480 of 2007 (DB),
1481 of 2007 (DB) and 1499 of 2007 (DB) are allowed and
the conviction and sentence passed against the appellants,
19
namely, Ram Prit Singh, Raju Singh @ Rajeev Ranjan Singh @
Rajeev Ranjan, Pradeep Kuamr @ Pradeep Kumar Singh,
Parvati Devi and Bishwanath Singh are set aside. The
appellants who are on bail, are discharged from the
liability of their bail bonds. Since Parvati Devi and
Bishwanath Singh, who are in custody, have been awarded
death sentence, they are directed to be released
forthwith, if not wanted in any other case.
(Mridula Mishra, J.)
Syed Md. Mahfooz Alam, J. I agree.
(Syed Md. Mahfooz Alam, J.)
Patna High Court, Patna
The 21st November, 2008
A.F.R. (B.T.)