DEATH REFERANCE No.7 OF 2007
STATE OF BIHAR-----------------------------(Appellant)
Versus
1.NEERAJ KUMAR
2.RAVI CHOR @ RAVI RAI
3.SANTOSH KUMAR @ LOHA
4.RAVINDRA KUMAR @ RAVINDRA KUMAR SINGH
5.GORAKH SINGH @ GORAKH NATH SINGH
6.SUNNY @ SUNNY DEOL ----------------------(Respondents)
with
CR. APP (DB) No.1085 oF 2007
RAVINDRA KUMAR @ RAVINDRA KUAMR SINGH--------(Appellant)
Versus
STATE OF BIHAR------------------------------(Respondents)
with
CR. APP (DB) No.1173 oF 2007
RAVI CHOR @ RAVI RAI--------------------------(Appellant)
Versus
STATE OF BIHAR------------------------------(Respondents)
with
CR. APP (DB) No.1194 oF 2007
NEERAJ KUMAR----------------------------------(Appellant)
Versus
THE STATE OF BIHAR--------------------------(Respondents)
with
CR. APP (DB) No.1216 oF 2007
1.GORAKH SINGH @ GORAKH NATH SINGH
2.SUNNY @ SUNNY DEOL-----------------------(Appellants)
Versus
STATE OF BIHAR------------------------------(Respondents)
with
CR. APP (DB) No.1275 oF 2007
SANTOSH @ LOHA--------------------------------(Appellant)
Versus
STATE OF BIHAR------------------------------(Respondents)
Reference made by Sri. Ram Pravesh Sharma, Additional Sessions
Judge-1, Patna vide letter No.277 dated 20th of August, 2007
and appeal against the judgment and order dated 7.8.2007 passed
in Sessions Trial No.1602 of 2005.
----------
Counsel for the appellants (D.Ref. No.7/07) with
Cr.Appeal Nos.1216 and 1085 of 2007
Sri Rana Pratap Singh, Sr.Advocate
Sri Sandeep Kumar, Advocate
Sri Sumant Singh, Advocate
Sri Aruni Singh, Advocate
2
Counsel for the appellant (Cr.Appeal No.1194/07)
Mr. Kanhaiya Prasad Singh, Sr.Advocate
Mr. Atal Bihari, Advocate
Mr. Chandra Mohan Jha
Counsel for the appellant (Cr.Appeal No.1173/07)
Mr. Rajeev Ranjan Sinha, Advocate
Mr. Sushil Kumar, Advocate
Counsel for the appellant (Cr.Appeal No.1275/07)
Mr. Raghu Bansh Singh, Sr.Advocate
Mr. Satyapal Singh, Advocate
Counsel for the State
Mr. Ashwani Kumar Sinha, APP
Counsel for the Informant (D.Reference No.7/07)
Mr. Shyam Bihari Prasad, Advocate
Mr. Praomod Kumar Bhartiya, Advocate
Mr. Aradhana Bhartiha, Advocate
———
P R E S E N T
THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON’BLE MR. JUSTICE MADHAVENDRA SARAN
Shiva Kirti Singh, J. The Death
Reference is in respect of the six accused who
have been tried together and convicted for the
offence under Sections 364(A),302,201 and 120(B)
read with Section 34 of the Indian Penal Code.
Accused Gorakh Singh @ Gorakh Nath Singh has
been sentenced to death for the offence under
Section 302 read with 120(B) of the Indian Penal
Code whereas the remaining five accused have
3
been sentenced to death for the offence under
Section 364(A) of the Indian Penal Code. No
separate sentence has been awarded to them for
other offences. Accused, Gorakh Singh @ Gorakh
Nath Singh and his son, accused Sunny @ Sunny
Deol have jointly preferred Cr.Appeal No.1216 of
2007 whereas the remaining four accused,
Ravindra Kumar @ Ravindra Kumar Singh, Ravi Chor
@ Ravi Rai, Neeraj Kumar and Santosh Kumar @
Loha have preferred separate Criminal Appeals
bearing No.1085,1173,1194 and 1275 all of 2007
respectively. The Death Reference and the
Criminal Appeals have been heard together and
are being disposed of by this common judgment.
2. The prosecution case, as disclosed
in the written report (Ext-1) of Sudhir Kumar
Sinha(PW-1) lodged on 22.9.2004 at 7:00 A.M. is
to the following effect:-
Informant’s son, Sumit Kumar aged
about 13 years, on 21.9.2004 went on a bicycle
to his school, BMP High School, Phulwarisharif
from his house. Sunny, son of Gorakh Singh met
4
in the school at about 1:00 P.M. and told him
that a cricket match is to be played for which a
ball will be given by Ravindra Singh son of
Ramnath Singh and for that Sumit should
accompany Sunny. Sumit left the school with
Sunny at about 1:30 P.M. He was kidnapped by
Ravindra Singh and his gang with wrong motives.
When Sumit did not return to his home till about
4:00 P.M. then efforts were made to search him.
In the night at 8:00 P.M. a station diary
(sanha) was recorded. In the morning at about
5:00 A.M. accused, Sunny was seen and was
apprehended by the general public which informed
the police. Sunny on being apprehended accepted
his guilt and disclosed that Sumit had been
murdered. Thereafter, police recovered the dead
body of Sumit from the side of railway line and
his school bag was also recovered. The informant
claimed that Sunny, Ravindra Singh and their
gang men had kidnapped Sumit and with a view to
destroy evidence and with bad intentions they
committed murder of Sumit. On the dead body of
5
Sumit there were marks of injury. Blood had
flown from nose and ears. There were burn marks
caused by cigarette and acid. Ravindra Singh and
Sunny reside in Aadarsh Nagar Colony where the
informant resides.
3. On the basis of the written report
of Sudhir Kumar Sinha, Phulwarisharif P.S. Case
No.649/04 was instituted on 22.9.2004 at 11:15
A.M. The FIR was sent to the court and seen by
learned Chief Judicial Magistrate, Patna on
23.9.2004. The case was investigated by Anand
Prakash Singh, Inspector of Police, then posted
as Officer Incharge, (PW-18) and he was assisted
by Sub Inspector, Arun Kumar (PW-16) who at the
relevant time was posted as Sub Inspector in
Phulwarisharif Police Station. PW-16 has
admitted that in the evening of 21.9.2004 at
about 8:30 while he was on patrolling duty in
the evening special mobile, he received wireless
information about the missing of Sumit but no
clues could be found in the evening. Next day,
in the morning at about 7:00 A.M, on receiving
6
information from father of Sumit (Sudhir Kumar
Sinha,PW-1) that residents of Mohalla (colony)
had caught Sunny and were assaulting him and
that Sunny had admitted the kidnapping of Sumit
which had created anger amongst the people, he
went with force and took Sunny in custody. After
making the crowd peaceful he began to
interrogate Sunny. He admitted his involvement
and disclosed that with the help of his friends
he had murdered Sumit. The confession (Ext-4)
was recorded by PW-16. As disclosed by Sunny
Police went 500 yards east of Phulwarisharif
station and from north of the railway line and
about 10 yards south to boundary wall of
airport, from bushes the dead body of Sumit was
recovered. It was without any clothes. There
were plenty of bushes all around and ants had
encroached all around the dead body. According
to PW-16 he had recorded the confession of Sunny
as per directions of Officer In charge of
Phulwarisharif P.S., PW-18 and participated in
further investigation as per his orders.
7
4. Allegedly, Sunny disclosed the
names of other accused persons as miscreants
involved in the occurrence. PW-16 proved the
inquest report as Ext-5, the dead body chalan as
Ext-6, seizure list in respect of school bag of
Sumit as Ext-7, the confessional statement of
another accused, Ravindra Kumar as Ext-8, the
confessional statement of Santosh @ Loha as Ext-
9, the confessional statement of Ravi Chor as
Ext-10, the confessional statement of Neeraj as
Ext-11, station diary entry No.693 dated
21.9.2004 as Ext-12 and another station diary
entry No.702 dated 22.9.2004 as Ext-13. He also
identified the school bag(material exhibit 1/8)
as the bag recovered on the disclosure of Sunny.
He also identified the books and copies kept in
the bag.
5. According to PW-18, the I.O. who
at the relevant time was Officer In Charge of
Phulwarisharif P.S., on 22.9.2004 he received a
telephonic information from the informant that
persons of the colony had apprehended Sunny on
8
suspicion and Sunny had admitted that Sumit had
been kidnapped. On this information another
station diary entry (sanha) No.702 was recorded.
After taking Sunny in custody and recording his
confession and after recovering the dead body on
his disclosure, PW-18 prepared the inquest
report and sent the dead body for autopsy to
Patna Medical College Hospital. He also prepared
a seizure list in respect of school bag of
deceased, Sumit which was recovered as per
disclosure made by Sunny from inside the
boundary of airport. He recorded further
statement of the informant and the statement of
other witnesses. He also got recorded statement
of Pramod Kumar (PW-10) before the Judicial
Magistrate under Section 164 Cr.P.C. He arrested
the other accused persons who also gave their
confessional statements as claimed by PW-16. He
has proved his signature on the confessional
statement of accused, Ravindra as Ext-8/1 and
his signature on confessional statement of
Santosh Kumar @ Loha as Ext-9/1. According to
9
him Ravindra had admitted his guilt and had
disclosed that the school dress of Sumit and a
piece of tyre strip which was used for
strangulating Sumit had been thrown by him at a
particular place amongst bushes inside boundary
of the airport at about 150 yards east of
western cabin of Phulwarisharif railway station
and on his pointing out, the school uniform of
Sumit- a blue full pant, a white shirt and a
tyre strip about 1 and ½ cubits length was
recovered from under the bushes. The seizure
list for those articles was proved as Ext-14. He
has also proved his signature on the
confessional statement of accused Ravi Chor @
Ravi Rai and confessional statement of accused
Neeraj as Ext-10/1 and 11/1 respectively. After
investigation he submitted charge sheet
including supplementary charge sheet against the
accused persons.
6. After submission of charge sheet
cognizance was taken by the learned Magistrate
and the case was committed to the court of
10
sessions. Charges were framed on 14.2.2006 to
which the accused persons pleaded not guilty and
hence they were put on trial. The defence of the
accused persons, as appears from the trend of
cross-examination is total denial of their
involvement in the kidnapping and murder of
Sumit.
7. The prosecution, in order to prove
the charges examined 20 witnesses in all and
also proved several documents such as the
written report, the FIR, the confessional
statement, the seizure list and the postmortem
report as exhibits. In the main trial no
witnesses were examined on behalf of the
defence. Only for the purpose of enquiry in
respect of claim of accused Sunny that he was a
juvenile and which plea was subsequently
rejected up to the stage of this Court, some
persons were examined as witnesses.
8. As noticed earlier, PW-1, Sudhir
Kumar Sinha is father of the deceased, Sumit and
also the informant of this case who gave written
11
report (Ext-1) to the police. PW-2, Om Prakash
is a witness in respect of seizure of clothes
and a tyre strip which according to him were
recovered on the disclosure made by accused,
Ravindra Singh. He has proved his signature on
the seizure list as Ext-1/9. He has also
identified accused Ravindra. PW-3, Anil Kumar
Sinha is brother of PW-1 and a witness of the
facts stated by PW-1 that Sumit became traceless
after going to school and during search the name
of Sunny and Ravindra was heard and police was
informed which took Sunny in custody and then he
confessed his guilt and on his disclosure dead
body was recovered from the place pointed out by
him. He has supported the prosecution case and
has proved the signature on inquest report as
Ext-1/10. He has deposed that besides Sunny
Ravindra was also apprehended and on his
disclosure full pant and shirt of Sumit which
were tied with a tyre strip were also recovered
for which the seizure list was prepared. He has
proved his signature on the said seizure list as
12
Ext-1/11.
9. PW-4, Manish Ranjan Sinha and PW-5,
Sonu @ Rajive Ranjan are sons of PW-3 and
cousins of the deceased. According to them also
in course of search for Sumit on 21.9.2004 the
names of Sunny and Ravindra surfaced. They went
to their houses but their family members did not
disclose anything and they were not found at
their houses. Next day in the early morning at
about 5:00 A.M. Sunny was apprehended by the
residents of colony and on their query he
admitted that Sumit had been kidnapped for
ransom. When police came and took him in custody
and made further interrogation then he admitted
the entire occurrence and also disclosed the
names of his friends and accomplices as Loha,
Neeraj, Ravi Chor and Ravindra Singh. On the
disclosure of Sunny police recovered the dead
body as well as the school bag and books of
deceased, Sumit. They have identified the
accused persons in dock. PW-6, Bittu Kumar is
son of sister of PW-1, the informant. He has
13
given the details that in course of search for
Sumit he and his friends met a boy named, Ranjan
who disclosed that Sunny had come to school gate
during lunch time. In the colony Gopal Sharma
(PW-15) another boy who was friend of Sumit
disclosed that Ravindra had promised to give a
ball to Sumit and had called him from school
through Sunny. They went to the house of Sunny
where his father accused, Gorakh Nath Singh gave
different excuses but in the meantime younger
brother of Sunny came out from his room and on
asking he also disclosed that during lunch time
Sunny had come at the school gate. In view of
conflicting versions of family members of Sunny
a suspicion arose about them. During search this
witness and his friends also went to the house
of accused, Ravindra but his family members also
made different excuses. After some time the
police had also come to make interrogations. On
22.9.2004 Sunny was seen in the colony and was
apprehended by the residents of the colony on
suspicion. On sustained interrogation he
14
admitted that he and his friends had kidnapped
Sumit. Thereafter PW-1 gave telephonic
information to the police which came and took
Sunny in its custody. Thereafter, he has
supported the prosecution case regarding
confessions by Sunny and recovery of the dead
body as well as school bag and books of deceased
Sumit as per disclosure made by Sunny. He
identified the accused persons but wrongly named
Ravi Chor as Loha and Loha as Ravi Chor.
10. PW-7, Baidyanath Lal is a formal
witness who has admitted his signature on the
inquest report relating to dead body of Sumit.
PW-8, Girish Prasad Singh is another formal
witness who has proved his signature on the
seizure list relating to school bag of Sumit
containing his books and copies. He has deposed
that the said recovery was made in his presence
on the disclosure of accused Sunny.
11. PW-9, Archana Sinha is wife of PW-
1 and mother of the deceased. Her statement
under Section 164 of the Cr.P.C. has been proved
15
by her as Ext-2. She has in general supported
the prosecution case regarding missing of her
son, Sumit on 21.9.2004, Sunny being apprehended
by people of the colony on 22.9.2004 and his
confession before the people that he with his
friends had kidnapped Sumit for ransom, about
arrival of the police on telephonic information
and about confession by Sunny before the police
in which he allegedly disclosed the names of the
co-accused. Besides the above she has also
deposed that in the evening of 21.9.2004 at
about 7:00 P.M., in course of search for Sumit
and while going towards station she saw accused,
Gorakh Singh talking to an unknown person. She
heard Gorakh Singh saying that family members of
the boy are searching for him desperately and it
appears that the matter is turning serious and
police may have been informed and his name may
also come into open therefore, sweep the market
clean.
12. PW-10, Pramod Kumar is also a
young boy acquainted with the accused Ravindra
16
and Sunny. He has deposed that his statement was
recorded by the police and he had also given a
statement in the court before the Magistrate
disclosing that on 21.9.2004 at about 9:30 P.M.
Ravindra and his friend Sunny came to him. He
enquired as to what was the reason for their
coming. Ravindra said that he had entered into
arguments with his father. About Sunny he
disclosed that he is a neighbour and they will
go back in the morning. Both of them slept at
his house during the night and in the morning
when he woke up he found that both of them have
gone away. The witness was thereafter declared
hostile and on cross-examination by the public
prosecutor he claimed that due to fear he had
made the statement before the Magistrate that
when he got up in the morning he found that
Sunny had gone away and on query Ravindra
disclosed that a boy had been murdered. He
admitted that he never gave in writing to any
court that he is under fear or he has been put
under pressure by any body. He admitted his
17
signature on his statement under Section 164
Cr.P.C. The said statement has been marked as
Ext-3. He has also admitted that he had stated
before the Magistrate all the facts stated in
Ext-3 including the fact that in the morning he
saw that Sunny had gone away and on his enquiry
Ravindra disclosed that he and Sunny had
committed murder of the boy and they were
therefore hiding themselves and on knowing this
fact he had turned Ravindra Kumar out of his
house. His attention was also drawn to the facts
to the aforesaid effect disclosed by him to the
police and he admitted his earlier statement in
favour of the prosecution case.
13. PW-11, Surendra Singh is a peon of
BMP-5 High School. PW-12, Ranjan Raj, PW-13,
Prem Sagar and PW-14, Pintu Kumar are students.
The peon has simply stated that on 21.9.2004
during night hours PW-12 and some other boys had
come to enquire about another boy and this
witness told them to come next day at about
10:00 when the school will be open. On
18
22.9.2004, he learnt that the missing boy had
been killed and after five minutes of observing
silence the school was closed. The three
students have also deposed simply to the effect
that they went to the school to enquire about
the missing boy and thereafter they got no
knowledge about anything relating to the case.
14. PW-15, Gopalji is an important
witness who had, according to some of the PWs,
disclosed that Sumit was called by Ravindra
through Sunny for giving him cricket ball. But
in court Gopalji turned hostile. He was
definitely under pressure to conceal the truth
because in paragraph-1 he has gone to the extent
of saying that he does not know any boy of the
name Sumit from his colony. But on being cross-
examined by the prosecution, in para-3 he has
deposed that by the side of his house is the
house of one constable (sipahiji) and the next
house is of Sumit. He has also disclosed that
Sumit was also known by his alias name Lalan.
He has denied the suggestion that he has deposed
19
due to fear.
15. The gist of evidence of Sub
Inspector, Arun Kumar PW-16 and Inspector, Anand
Prakash, PW-18 has already been noticed earlier.
PW-18 is the investigating officer and PW-16 had
assisted him in course of investigation. PW-17,
Dr.Pankaj Kumar conducted autopsy on the dead
body of deceased Sumit and has proved the
postmortem report as Ext-13. From his evidence
it is clear that autopsy was conducted on
22.9.2004 and he found ligature mark all around
neck which had indicated strangulation and cause
of death was asphyxia. He also found abrasion on
right arm and spots of ant bite marks all over
the body, mostly over the chest, upper limb,
interior abdominal wall and lower limbs.
According to him those marks had been wrongly
suspected as cigarette marks. According to
doctor the injury on the dead body was
sufficient to cause death in ordinary course of
nature and death had taken place within 24
hours.
20
16. PW-19, Satyendra Singh and PW-20,
Raj Kishore Rai are the Judicial Magistrates,
(First Class) who have deposed that they
recorded statements of Pramod Kumar PW-10 and
statement of Archana Sinha, PW-9 respectively,
under Section 164 of the Code of Criminal
Procedure. Those statements have been marked as
Ext-3/1 and 2/1 respectively. From the evidence
of these Judicial Magistrates, it is clear that
they had taken precaution by warning the
witnesses and according to them the witnesses
have given their statements voluntarily.
17. Before discussing the submissions
advanced on behalf of the accused persons so as
to find out whether they have been convicted
rightly or not and whether it is a case fit for
sentencing them to death penalty, it will be
useful to first take a bird’s eye view of the
evidence emerging from the statement of
witnesses noticed above.
18. It is admittedly a case where
there is no eyewitness and therefore no direct
21
evidence either in respect of kidnapping of
Sumit Kumar or his killing. The circumstantial
evidence on record, even prior to detailed
scrutiny and thorough examination, is only by
way of-(i) Suspicion against the two accused,
Sunny @ Sunny Deol and Ravindra Kumar @ Ravindra
Kumar Singh in course of search and their being
named in the FIR lodged by PW-1 on the next day
of the occurrence. (ii) Sunny was allegedly
apprehended by the residents of the colony and
had confessed before them regarding kidnapping
of Sumit. (iii) Confessions of accused persons
except Gorakh Singh @ Gorakh Nath Singh made
before the police while in custody, (iv)
recovery of dead body and school bag of Sumit
Kumar on the disclosure by accused, Sunny, (v)
recovery of clothes of Sumit and a tyre strip of
1 and ½ cubit length alleged to be weapon used
for strangulation, recovered on the disclosure
made by accused, Ravindra Kumar Singh, (vi)
evidence of PWs indicating that during search
Sunny and Ravindra were not found in their
22
houses and its corroboration by evidence of PW-
10, Pramod Kumar although he has been declared
hostile and (vii) evidence of Archana Sinha, PW-
9 against accused Gorakh Singh @ Gorakh Nath
Singh that she over heard his conversation with
an unknown person in the late evening hours of
21.9.2004 which suggests that he was a party to
the killing of the kidnapped boy at least as a
conspirator.
19. It requires no detailed scrutiny
and reasoning to come to the conclusion that
confessions attributed to the accused persons
which were allegedly made by them to the police
officials while they were in custody are
inadmissible in evidence except to the extent
permitted by Section 27 of the Indian Evidence
Act. On that well established principle of law
the confessions of other accused persons except
that of accused Sunny @ Sunny Deol and Ravindra
Kumar Singh @ Ravindra Kumar are inadmissible in
evidence. Once those confessions are left out of
consideration, no legal evidence is left on
23
record in respect of accused Ravi Chor @ Ravi
Rai, Neeraj Kumar and Santosh @ Loha.
20. So far as remaining three accused
are concerned, against accused Ravindra and
Sunny there are more than one circumstances but
against accused, Gorakh Singh @ Gorakh Nath
Singh the only circumstance is the allegation by
PW-9, Archana Sinha that she, while going
towards station in course of search for Sumit
saw accused, Gorakh Singh talking to an unknown
person on 21.9.2004 at about 7:00 P.M. She has
claimed that she heard Gorakh Singh saying that
since the family members of the boy are
desperately searching for him (boy) and since
the matter is turning serious and the police may
have been informed and there was likelihood of
his name being disclosed, hence the market
should be swept clean. This kind of statement,
according to prosecution was in relation to the
missing boy, Sumit and cleaning the market
impliedly meant killing Sumit. She has further
claimed that these facts were conveyed by her to
24
her husband (PW-1) at about 11:00 P.M. in the
night. There is no witness to support such a
claim of PW-9 and no other material to prove the
charge that accused Gorakh Singh was in
conspiracy with the other accused persons in the
matter of kidnapping and killing of Sumit. The
evidence of PW-1 shows that he has not supported
the aforesaid claim of PW-9 that she disclosed
to him the alleged utterances of Gorakh Singh
while talking to any person. No such facts were
disclosed by PW-1 even in the Sanha, Ext-13
lodged on 22.9.2004 or in the first information
report. Such uncorroborated claim of PW-9 which
is the only evidence against accused, Gorakh
Singh is clearly not sufficient to establish the
charges against him.
21. So far as the case against
accused Sunny & Ravindra Kumar is concerned, it
has been noticed earlier that they are named in
the FIR lodged soon after arrest and confession
of Sunny and recovery of the dead body and
school bag of the deceased Sumit. The most
25
important circumstance against these two
appellants is their alleged disclosure before
the police which fact has been corroborated by
witnesses and which resulted in recovery of dead
body and school bag of deceased, Sumit on the
disclosure by accused Sunny and recovery of
clothes of Sumit and a tyre strip of 1 and ½
cubit length on the disclosure by accused
Ravindra Kumar Singh. The other circumstance is
the fact emerging from the evidence of several
PWs indicating that during search for Sumit they
went to the house of Sunny and Ravindra but they
were not in their houses. It is also clear from
the evidence of PW-10, Pramod Kumar although he
has been declared hostile, that on 21.9.2004 at
9:30 P.M. Ravindra and Sunny had gone to his
house and they spent the night at his house. He
has also admitted that he had given a statement
under Section 164 Cr.P.C. before a Magistrate
which is contained in Ext-3. According to that
statement and as per statement of the I.O. PW-18
in paragraph-2 of his deposition, this witness
26
had disclosed that Ravindra and Sunny had come
to his house on the relevant date at about 9:30
P.M. and they stayed in his house. In the
morning he found that Sunny had left and on
enquiry Ravindra disclosed that he, Sunny and
some others had killed the boy. The evidence of
the Magistrate, PW-19 Satyendra Singh confirms
that PW-10, Pramod Kumar had given his statement
under Section 164 Cr.P.C. voluntarily. The
Magistrate has deposed that before recording the
statement he had pointed out that it could be
used also against him and he had also tested
that person was ready to make statement
voluntarily. The Magistrate has further deposed
that Pramod Kumar did not make any complaint
before him that he was making the statement
under pressure of anyone. In paragraph-2 of his
deposition PW-10 has admitted that he never gave
in writing to the court that he was in fear of
anyone or he had been pressurized by anyone. In
paragraph-1 he has no doubt given an explanation
that he had deposed before the Magistrate out of
27
fear that when he got up in the morning he found
that Sunny had gone away and on enquiry Ravindra
disclosed about the murder of a boy. Such
explanation in respect of statement before the
Magistrate does not appear to be convincing in
view of evidence of the Magistrate, PW-19.
Moreover, no such explanation has been given for
his statement before the police about which he
has admitted in paragraph-5 of his deposition
that he stated before the police that on enquiry
in the morning Ravindra disclosed that in the
night he and Sunny had committed murder of a
boy.
22. Simply because PW-10 has been declared hostile and cross-examined by the
prosecution, his evidence in court does not lose
its value. His admission about his earlier
statement before the police in Paragraph-5 came
out in course of cross-examination by the
prosecution and it is supported by the evidence
of the I.O., PW-18. This part of evidence of PW-
10 is clearly reliable and can be used against
28
the appellant, Ravindra. Since the aforesaid
part of evidence of PW-10 is found reliable it
flows from the same that accused, Ravindra had
made an extra judicial confession before PW-10
that he and the co-accused, Sunny who has been
tried together had committed murder of the boy
in the night of 21.9.2004 and thereafter instead
of remaining in their houses, obviously for the
purpose of hiding themselves, they spent the
night in the house of PW-10.
23. The extra judicial confession of
accused, Ravindra proved through PW-10 may also
be taken into consideration against Sunny in
view of Section 30 of the Evidence Act, although
with great caution only for seeking assurance
for the inference which may arise from other
circumstances appearing against him. The
position would have been different, had the
confession of Ravindra been exculpatory but that
is not the situation here. From the evidence of
PW-10 noticed above it is clear that the
confession of Ravindar Kumar before PW-10, as
29
corroborated by Ext-3, the statement under
Section 164 Cr.P.C. and by the I.O. PW-18
disclosing the earlier statement of PW-10 made
before him, was voluntary and inculpatory.
24. Learned counsel for the appellants, Ravindra and Sunny has submitted that the prosecution evidence that Sunny was
apprehended by persons of the colony and before
them he confessed that he with his friends had
kidnapped Sumit is not reliable because such
people of the colony have not been named and the
admission of the I.O. that there were injuries
on the person of Sunny for which he was sent for
medical examination also shows that such
confession could at best be under coercion and
threat. The aforesaid submission appears to have
merit and in that view of the matter the
aforesaid confession of Sunny allegedly made
before the people of the colony cannot be
accepted as a voluntary confession and hence it
is inadmissible in view of Section 24 of the
Evidence Act.
30
25. It was next contended on behalf
of the aforesaid two accused persons that from
admission of the I.O. made in paragraph-29 of
his deposition it is clear that the dead body of
Sumit was recovered from a place within the
jurisdiction of Gardanibagh Police Station.
Further, on the basis of suggestion to the I.O.
that the dead body was recovered by police of
that police station and that in her statement
under Section 164 Cr.P.C. PW-9, Archana Sinha,
the mother of the deceased indicated the time of
recovery of the dead body as 7:30 or 8:00 in the
morning, it was submitted that there is some
discrepancy regarding the time of recovery of
the dead body and since it was recovered from a
place under different police station hence the
prosecution case of recovery of the dead body on
the basis of arrest and confession of accused,
Sunny is doubtful and such claim should be
rejected as such. However, on a careful perusal
of the FIR, the inquest report which was
prepared on 22.9.2004 at 8:30 A.M. and the
31
evidence of witnesses it is found that there is
no material contradiction and the prosecution
case cannot be doubted that in the morning of
22.9.2004 Sunny was taken into custody by the
police and on his disclosure made to the police
in presence of witnesses, the dead body and the
school bag of deceased, Sumit was recovered by
the police.
26. It was further submitted on behalf
of the aforesaid two accused that prosecution
has not proved that the I.O. obtained a written
permission for entering into premises of airport
for recovery of school bag and articles
belonging to the deceased, Sumit. No doubt, the
I.O. has admitted that he did not obtain
permission from the authorities of the airport
in course of investigation but this fact alone
is not sufficient to raise doubt regarding
recovery of school bag of deceased Sumit along
with books and copies which have been made
material exhibits, and also in respect of
recovery of clothes of Sumit along with a tyre
32
strip. Both the recoveries are supported by
seizure lists which have been proved by
witnesses. The conduct of the I.O. in gaining
entry into the airport without obtaining
permission of the competent authority, at least
in writing, can have several plausible
explanations including reluctance of the Guards
at the airport to interfere with the police
investigation. On this account alone the factum
of recovery of incriminating articles on the
basis of disclosure made by accused Sunny and
Ravindra cannot be disbelieved.
27. Learned counsel for the appellants, Sunny and Ravindra referred to several judgments including the judgment of Privy Council reported in AIR 1947 P.C.67
(Kottaya Vs.Emperor) to submit that only those
words given out by the accused to the police are
admissible in evidence under Section 27 of the
Evidence Act which directly and distinctly
relate to the relevant facts discovered as a
consequence of such disclosure. The other part
33
of statement of the accused before the police
which do not relate to the discovery of relevant
facts are inadmissible.
28. The law relating to Section 27 of
the Evidence Act is no longer under any
confusion. Through catena of judgments including
a recent judgment of the Supreme Court in the
case of Anil Vs. Administration of Daman and
Diu, Daman, reported in (2008)1 SCC (Cri) 72 it
is well recognized that Section 27 is by way of
exception to Section 25 and 26 of the Evidence
Act and it makes admissible only so much of
information given by an accused in police
custody as relates distinctly to the facts
thereby discovered. It is also now settled that
the fact discovered embraces the place from
which the object is produced as well as the
knowledge of the accused and not only to the
material objects found at the place disclosed by
the accused.
29. While keeping the aforesaid law in
mind and also the admitted legal position that
34
the fact of disclosure leading to recovery of
incriminating facts alone is not sufficient for
conviction as held by a bench of this Court in a
recent judgment in the case of State of Bihar
Vs. Diwakar Mehta, 2008(3) PLJR 118 to which one
of us (Shiva Kirti Singh,J.) was a party, we
have analyzed all the facts and circumstances
and found that against the FIR named appellants,
Sunny and Ravindra Kumar the prosecution has
succeeded in proving the following
circumstances:-
(i) In the night of the occurrence i.e.
21.9.2004 in course of search of the deceased,
Sumit, they were not at their houses.
(ii) Both the said accused had taken
unusual step of staying in that night at the
house of PW-10.
(iii) Accused Ravindra had made extra
judicial confession before PW-10 which was
inculpatory in nature to the effect that he and
Sunny had committed murder of a boy in that
night before taking shelter in the house of PW-
35
10.
(iv) While in custody of police
accused, Sunny made disclosures which lead to
discovery of dead body and school bag of
deceased, Sumit found concealed amongst bushes.
(v) While in police custody accused,
Ravindra made disclosures leading to recovery of
clothes of deceased, Sumit along with a tyre
strip of 1 and ½ cubit, alleged to be used for
strangulating the deceased.
30. The aforesaid facts coupled with
lack of any explanation by the said two accused
as to how they could know the facts disclosed by
them leading to recovery of incriminating
materials, in my view are sufficient to
establish the charge under Section 302 read with
34 of the Indian Penal Code against appellants
Sunny @ Sunny Deol and Ravindra Kumar @ Ravindra
Kumar Singh beyond any reasonable doubts.
However, the charge of kidnapping for ransom or
conspiracy has not been proved beyond reasonable
doubts.
36
31. On behalf of the appellant Sunny,
argument was advanced that his plea of being a
juvenile on the date of occurrence has been
wrongly disallowed by the trial court although
he had examined some witnesses including himself
in course of enquiry for that purpose. It has
been submitted that on account of Section-7A of
the Juvenile Justice (Care and Protection of
Children) Act, 2000 which has been introduced
through Amendment Act, 2006 w.e.f. 22.8.2006,
the claim of juvenility can be raised before any
court at ant stage and after determining such
claim in terms of provisions contained in Act of
2000 and the rules made thereunder, even in the
case of a juvenile who has ceased to be so, the
sentence passed against a person who is found to
be a juvenile on the date of commission of the
offence must be declared to have no effect.
32. The aforesaid plea suffers from a
factual fallacy. No doubt, under law as amended
through Section-7A, now it has been recognized
through the statute that a claim of juvenility
37
may be raised before any court at any stage but
that does not mean that such a claim which has
been raised before the competent court and
decided against the accused on facts, can again
be raised although the earlier finding that
appellant, Sunny Deol was not a juvenile under
the Act of 2000 has already attained finality on
account of dismissal of his criminal revision
bearing No.471/07 dismissed by this Court on
16.5.2007. Learned counsel for the State has
rightly placed reliance upon the judgment of the
Supreme Court in the case of Sidharth Vs.State
of Bihar, (2006)1 SCC 175 in paragraph-9 whereof
the Supreme Court has held that since at the
earlier stage the accused had failed in his
challenge to the finding that he was not a
juvenile, again before the Supreme Court he
could not challenge that finding because the
decision on that issue had become conclusive and
final. Hence, in the facts of the case, this
Court has no option but to hold that since
appellant, Sunny could not succeed even before
38
this Court in challenging the finding of the
trial court that he was not a juvenile and
therefore not entitled to protection of the
Juvenile Justice Act of 2000, such plea cannot
be permitted to be raised by the appellant again
before this Court in the present proceeding.
33. Coming to the question of
sentence, I have considered all the facts and
circumstances and I have no hesitation in coming
to the conclusion that the offence in question
cannot be treated as rarest of rare and
therefore award of death penalty to appellant,
Sunny @ Sunny Deol and appellant, Ravindra Kumar
@ Ravindra Kumar Singh is found to be not in
accordance with law. In view of earlier
discussions and findings these two accused are
found guilty of the charge under Section 302/34
of the IPC and their conviction for such charge
is affirmed. As discussed above it is not a rare
case deserving award to extreme penalty of death
and hence the award of death penalty to these
two appellants is not found appropriate. For the
39
charge found approved against them, the ends of
justice would be satisfied by awarding them life
imprisonment.
34. As a result of discussions and
findings given earlier the other four accused
persons, namely, Ravi Chor @ Ravi Rai, Neeraj
Kumar, Gorakh Singh @ Gorakh Nath Singh and
Santosh @ Loha are acquitted of all the charges.
Accordingly, the death reference against them is
answered in negative. Their appeals stand
allowed. The appeals of appellant, Sunny @ Sunny
Deol and Ravindra Kumar @ Ravindra Kumar Singh
are allowed in part but dismissed in respect of
their conviction under Section 302 read with
Section 34 of the Indian Penal Code. As
discussed, the death penalty awarded to them is
commuted to life imprisonment. The death
reference in respect of them is also answered in
negative. As a result of their acquittal of
all the charges, the appellants, Ravi Chor @
Ravi Rai, Neeraj Kumar, Gorakh Singh @ Gorakh
Nath singh and Santosh @ Loha are directed to be
40
released from custody forthwith if they are not
required in connection with any other case.
(Shiva Kirti Singh,J.)
(Madhavendra Saran, J)
(Madhavendra Saran,J.)
Patna High Court
Dated the 3rd of September,2008
AFR/PERWEZ