DEATH REFERENCE No.8 OF 2006
WITH
CR. APP. (DB) NO.1177 OF 2006
WITH
CR. APP. (DB) NO.1185 OF 2006
........
Reference made by Sri Diwakar Mishra, Presiding Judge, Fast Track Court No.V,
Samastipur, through Letter No.10072 dated 6.11.2006 and appeals against the Judgment
of conviction dated 20.10.2006 and Order of sentence dated 31.10.2006 passed by Sri
Diwakar Mishra, Presiding Judge, Fast Track Court No.V, Samastipur in Sessions Trial
No.270 of 2005/540 of 2006.
………
DEATH REFERENCE No.8 OF 2006
THE STATE OF BIHAR——————————————————–APPELLANT.
Versus
RAGHUBAR RAI, SON OF LATE SUNDER ROY, RESIDENT OF VILLAGE-
JANARDANPUR, P.S. KALYANPUR, DISTRICT-SAMASTIPUR.
————————————————————————————–RESPONDENT.
WITH
CR. APP (DB) No.1177 OF 2006
BIRAL ROY, SON OF TRIVENI ROY ALIAS PRIKSHAN ROY, RESIDENT OF
VILLAGE-KOTHEA, P.S.CHACKMEHSI, DISTRICT-SAMASTIPUR.
—————————————————————————————–APPELLANT.
Versus
THE STATE OF BIHAR——————————————————RESPONDENT.
WITH
CR. APP (DB) No.1185 OF 2006
RAGHUBAR RAI, SON OF LATE SUNDER ROY, RESIDENT OF VILLAGE-
JANARDANPUR, P.S. KALYANPUR, DISTRICT-SAMASTIPUR.
—————————————————————————————–APPELLANT.
Versus
THE STATE OF BIHAR——————————————————RESPONDENT.
———
For the Appellants : M/s. Kanhaiya Prasad Singh, Senior Advocate and Khurshid
Alam, Advocate (in both the appeals) and for the Respondent
in D. Reference.
For the informant : Mr. Basant Choudhary, Senior Advocate, in all three cases.
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For the State : Mr. Ashwani Kumar Sinha, A.P.P.in all the three cases.
PRESENT
THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON’BLE MR. JUSTICE ABHIJIT SINHA
………..
JUDGMENT.
Abhijit Sinha,J: In the month of July, 2004 as the gurgling flood waters devastated areas
under Kalyanpur P.S., Nand Kumar Thakur alias Ghuran Thakur, a Member of the
Panchayat Samiti , though reported to be sick was taken away by boat at around 11
A.M. on 15th July, 2004 by Mukhia , Raghubar Roy, Vimlesh Kumar Gupta, Kailash
Roy, Biral Roy, Kamod Paswan, Ashok Kumar Roy and Sikandar Roy and four other
unknown persons on the pretext that the relief materials from the block could not be
given to them in his absence because he was a Member of the Panchayat Samiti and
the people under the panchayat were dying of starvation and thereafter he never
returned home and no trace could be found. Accordingly, Nirmala Devi, wife of
Nand Kumar Thakur alias Ghuran Thakur, submitted a written report before the
Officer Incharge, Kalyanpur P.S. on 23.7.2004 on the basis whereof Kalyanpur P.S.
Case No.90 of 2004 was registered against the seven persons aforesaid under Sections
2. Briefly stated, the prosecution case as culled out from the written report of
the informant is that at about 10 A.M. on 15.7.2004 while her husband, her dewar,
Chandrakant Thakur, brothers-in-law, Binay Kumar Thakur and Bipin Kumar Thakur
were sitting at the darwaza along with her, Vimlesh Kumar Gupta, Kailash Roy and
boatman Biral Roy, came to the darwaza by boat and informed that Mukhia,
Raghubar Roy, had called him to bring materials of flood relief and distribute the
same. It is said that since her husband had fever, he refused to go but an hour later at
about 11 A.M., Mukhia Raghubar Roy, himself accompanied by Vimlesh Kumar
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Gupta, Kailash Roy, Biral Roy, Kamod Paswan, Ashok Kumar Roy, Sikandar Roy
and four other unknown persons came over by boat to their darwaza and requested
him that since he was a member of the panchayat samiti, the relief materials could not
be released from the Block Office in his absence and the people would starve to death
and when her husband expressed his inability on account of his illness to accompany
them, Raghubar Roy said that he would get him examined by a doctor and even
though the husband refused to accompany them, all the persons took him away
against his will by boat to Kalyanpur block. It is said that when her husband did not
return home till 7 P.M., she sent her dewar and both the brothers to the house of
Raghubar Roy to know the whereabouts of her husband but it was learnt that
Raghubar Roy had not returned till then. Other attempt was made at 10 P.M. when it
was again found that Raghubar Roy had not returned. On the following day, her
dewar and brothers again went to the house of Raghubar Roy to enquire about Nand
Kumar Thakur and they were given to understand by Raghubar Roy that Nand Kumar
Thakur had returned to his house in the night itself by another boat. Thereafter hectic
search was made for Nand Kumar at the houses of the friends and relatives but no
trace could be found. The putrefied and decomposed dead body was subsequently
recovered.
3. The informant further stated that her husband used to go to cattle mart
held on his own lands near Durga temple in village-Janardanpur where cows and
buffaloes were sold on every Tuesday and Raghubar Roy was demanding this plot of
land to be given to him on contract for realization of money but her husband had
refused which caused annoyance to Raghubar Roy. On this premise the informant
expressed her suspicion and apprehension that the accused persons by hatching a
conspiracy had kidnapped her husband and killed him on the pretext of distributing
flood relief materials and in order to conceal the dead body had thrown it into the
flood waters.
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4. The police started investigation and found the accused persons
absconding. However, in course of investigation they received secret information
about accused Vimlesh Kumar Gupta and Biral Roy and reached Jathmalpur
Mahadeo Sthan Chour with witnesses. It is alleged that on seeing the police force
both the accused took to their heels and fled away towards bridge but were
apprehended by the police on chase. Admitting his guilt accused Vimilesh Kumar
Gupta gave out that the dead body of Nand Kumar Thakur had been thrown into the
river after committing his murder in between Dhruvagama village and the saw mill
near to it. This fact was supported by the confessional statement of accused Biral
Roy. Search for the dead body of Nand Kumar Thakur in the surging flood water
yielded no fruitful result and the dead body could not be found. On the following
morning search continued by boat and in course thereof when they reached near the
bamboo clump in village Dhruvagama, on being pointed out by the two accused they
detected the dead body wearing kurta paijama floating on the water near a shisam
tree. The witnesses, Jagdish Dubey and Chandrakant Thakur, the brother of the
deceased, identified the dead body after seeing the same. This recovery was made at
about 7.30 A.M. on 25.7.2004. The confessional statement of the accused persons
were recorded who gave out that all the accused persons had gone to Kalyanpur on
the boat of Raghubar Roy where Nand Kumar Thakur was administered mild
medicines and while coming back in the evening by the boat, Raghubar Roy
strangulated him to death and threw the dead body into the flood waters with the help
of other accused persons. The police prepared inquest report and sent the dead body
to Samastipur for post-mortem examination where the doctor found the cause of death
to be asphyxia and stated the time of death before about 10 days.
5. Having completed the investigation the Investigating Officer submitted
chargesheet no.93 of 2004 against Vimlesh Kumar Gupta and Biral Roy. Thereafter
chargesheet no.3 of 2005 was submitted against accused Raghubar Roy, showing the
5
investigation to be pending against accused Kamod Paswan, Kailash Roy, Ashok
Kumar Roy and Sikandar Roy.
6. Eventually, by order dated 1.6.2005, the then Ist Additional Sessions
Judge, framed charges under Sections 120-B/34, 364/34, 302/34 and 201/34 I.P.C.
against accused Vimilesh Kumar Gupta, Biral Roy and Raghubar Roy to which they
pleaded not guilty and claimed to be tried. It would not be out of place to mention
here that soon after the framing of charge the case in respect of Vimlesh Kumar
Gupta was dropped by order dated 28.7.2005 since he had expired in the meantime
and the trial proceeded against the remaining two.
7. At the trial, the prosecution in support of its case examined as many as 10
witnesses of whom P.W.9 is Dr. Ashok Bardhan Sahai who has proved the post-
mortem (Ext.3) and P.W.10, Brij Bihari Pandey, is the Investigating Officer and
Nirmala Devi, the informant, is P.W.6, apart from bringing on record the
documentary evidence.
8. The defence case is that they are innocent and have been falsely
implicated in this case due to previous enmity over a dispute with Nand Kumar
Thakur over the issue of cattle mart in the village and that Nand Kumar Thakur often
became traceless for years together and it was possible that he might have gone
missing and the recovered dead body was of another unknown person and not of
Nand Kumar Thakur and taking advantage of the same due to the previous enmity
and caste rivalry the accused persons had been dragged in into this case in a well
planned manner after 8 days. The defence also produced documentary evidence as
also oral evidence in its defence to show that the contract of the said cattle fair was in
the name of the accused Raghubar Roy from before and that the witnesses produced
by the prosecution in the court were interested witnesses having previous animosity.
9. At the conclusion of the trial both the accused, Raghubar Rai and Biral
Roy, were adjudged to be guilty of and convicted for commission of offences under
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Sections 364/34 , 120B/34, 302/34 and 201/34 I.P.C. Taking into consideration the
presumptively heinous nature of the crime, dubious role played by him therein and
the pendency of a conglomerate of criminal cases of various nature against him,
convict Raghubar Rai was sentenced to the gallows for the offence under Section 302
I.P.C. He was further sentenced to undergo rigorous imprisonment for 10 years for
the offence under Section 364 I.P.C. along with a fine of Rs.25, 000/- payable to the
wife of the deceased and in default to undergo simple imprisonment for two years.
For the offences under Sections 120 B / 34 and 201/34 I.P.C., he was sentenced to
rigorous imprisonment for 7 years each. Co-convict Biral Roy on a finding of being a
conspirator and close associate of the main accused, Raghubar Rai, was sentenced to
life imprisonment for the offence under Section 302/34 I.P.C., rigorous imprisonment
for 10 years for the offence under Section 364/34 I.P.C, rigorous imprisonment for 7
years for the offence under Section 201/34 I.P.C. and rigorous imprisonment for 5
years for the offence under Section 120B/34 I.P.C. with a direction for all sentences
to run concurrently.
FINDINGS
10. Admittedly, the factum of death of Nand Kumar Thakur alias Ghuran
Thakur is neither in controversy nor in dispute. The primary question which calls for
pointed consideration is whether the prosecution has been able to prove the charge
against the accused herein beyond all reasonable doubts and if the answer is in the
positive then whether the case of the appellant Raghubar Rai would fall within the
category of “rarest of rare” cases so as to deserve capital punishment.
11. Admittedly again, there are no eye witnesses of the occurrence and the
entire prosecution case is based upon circumstantial evidence. As observed in the
case of Deepak Chandrakant Patil Vrs.State of Maharshtra reported in ( 2006) 10
SCC 151, in a case based on circumstantial evidence there may be no direct evidence
to prove the manner of assault or the actual participation of an accused in the assault
7
on the deceased resulting in his death, but if the circumstantial evidence is conclusive
in nature, a conviction on the basis of such circumstantial evidence may be recorded.
Keeping this principal in mind we have to delve and deliberate as to whether the
circumstances established on record are incriminating in nature and the chain of
circumstances established by the prosecution is so complete as not to be consistent
with any other hypothesis except the guilt of the accused.
12. As per the written report ( Ext.2) submitted by Nirmala Devi ( P.W.6)
the wife of the deceased, the presence of her dewar Chandrakant Thakur ( P.W.2) ,
and brothers-in-law Binay Kumar Thakur ( P.W.1) and Bipin Kumar Thakur ( not
examined) is indicated at her darwaja wherefrom Nand Kumar Thakur was allegedly
taken away by the accused and their henchmen. This fact finds support from the
evidence of P.Ws.1,2 and 6 . This fact is also supported by the evidence of Mahanth
Ram Lakhan Das ( P.W.5) ,the father of the deceased, and P.W.2 who though not
shown to be present at the darwaza of Nand Kumar Thakur claims to have seen the
departure of Nand Kumar with the accused. P.Ws 1,2 and 6 have also supported the
prosecution story of Nand Kumar Thakur being indisposed and refusing to go at the
first instance when Vimlesh Kumar Gupta, Kailsh Roy and boatman Biral Roy had
come to call him. P.W.3 ( Paltan Sahni) claims to have seen Nand Kumar Thakur in
the company of the accused and their accomplices on a big boat going towards
Kalyanpur. The fact of Nand Kumar leaving with the accused persons is not in
dispute nor has any controversy thereto been raised by the defence.
13. What is worth noting is the fact that whereas P.W.1 deposed that
when Nand Kumar refused to go on the second occasion , Raghubar Rai caught hold
of his arm and forcibly got him seated on the boat, P.Ws 2 and 6 state of Raghubar
Rai , merely catching hold of Nand Kumar’s hands but they do not give any
suggestion of any force being applied on Nand Kumar to force him on to the boat.
Even P.W.5 does not give any indication of Nand Kumar being held in captivity.
8
Curiously, in course of his cross-examination, P.W.1 admits that neither Nand Kumar
nor any of the relatives present there at the relevant time, including himself and
Nirmala Devi, made any attempt to set him free or raise any hulla. He also admitted
that there had been no struggle or tussle. The behaviour of the relatives of Nand
Kumar not to offer any resistance to his being taken away is a matter which pricks the
conscience with an element of doubt and unreasonableness. From the above one may
deduce that with Raghubar Rai’s assurances of getting Nand Kumar examined by a
doctor and providing medicines for his ailment he only had extended a helping hand
to Nand Kumar to enable him to get on to the boat.
14. P.W.1 also deposed that when Nand Kumar did not return by 7 P.M.
he in the company of P.W.2 and Bipin Kumar Thakur went to the house of Raghubar
Rai and found that he had not returned by then. He also speaks of going there a
second time at 10 P.M but even then Raghubar was not available. Having spent the
night in anxiety, they again visited Raghubar Rai the following morning when
Raghubar informed them that Nand Kumar had already returned to his house by
another boat in the evening. Search for him in the houses of the relatives yielded no
positive result. P.W.2 has supported P.W.1 in the aspect. This led to the filing of the
written report (Ext.2) after eight days.
15. P.W.1 in course of his testimony sought to give a criminal tinge to
the otherwise innocuous occurrence by stating that the cause of occurrence was that
Nand Kumar Thakur had a cattle mart in village Janardanpur and Raghubar Rai with
avaricious eyes thereupon was pressurizing Nand Kumar to hand over the same to
him on contract which had not been acceded to and as a result thereof Nand Kumar
had been taken away by the accused persons and murdered. P.W. 2 in substantiating
the fact of enmity in course of his deposition added that there used to be frequent
squabbles between the two over the issue. P.Ws 2,5 and 6 have substantiated the fact
of existence of differences and ill- feelings between Nand Kumar and Raghubar Rai.
9
Curiously, the Investigating Officer does not appear to have considered this as a
matter of which required investigation and he is silent in this regard.
16. To establish an offence punishable under Section 364 I.P.C. it is
required to be proved that the person charged with the offence had the intention at
the time of the abduction that the person abducted would be murdered or would be so
disposed of as to be put in danger of being murdered . The pre-requisite for the
prosecution is to establish that he intended at the time of the abduction to place the
abducted person in a position which would put him/her in danger of being murdered.
One may, for this purpose, take into consideration the motive, previous relations of
the parties and the circumstances showing clearly that the deceased was abducted
with the object of being murdered.
17. From the evidence available it is apparent that the area was reeling
under the devastating fury of the flood waters causing all round misery, grief and
depression with hungry populace clamouring for food and solace. In such a situation
it is but common expectation that people swayed by humanitarianism would eschew
their animosity and differences would join hands in amity to ameliorate the human
sufferings. From the evidence of P.Ws 1,2, 3,5 and 6 as discussed in the foregoing
paragraphs , it does not appear that the deceased Nand Kumar Thakur was forcibly
taken away from his darwaja with the pre-determined motive or intention of his
being murdered or being disposed of as to be put in danger of being murdered. None
of the witnesses have stated anything in this regard so as to come to the conclusion
that Nand Kumar Thakur was kidnapped/ abducted from his darwaja. Had these
winesses been aware of the alleged intention or motive of the accused persons of
killing Nand Kumar Thakur, they would definitely have offered some sort of
resistance, but the depositions of the witnesses are absolutely silent regarding
resistance being offered to Nand Kumar Thakur being taken away by boat. Even the
police was not informed of Nand Kumar Thakur being taken away for eight days.
10
18. Having given my anxious thought to this aspect of the matter I am of
the confirmed opinion that it cannot be said with certainty that the accused persons
were guilty of the offence under Section 364/34 I.P.C. and, accordingly, their
conviction and sentence thereunder is set aside.
19. It appears from the evidence of Jagdish Dubey ( P.W.4 ) that after
kidnapping of Nand Kumar Thakur, the Kalyanpur Police led by the Sub-Inspector
of Police went to Jathmalpur Mahadeo Asthan with Chandrakant Thakur in the
evening of 24.7.2004 where the accused persons Biral Roy and Vimlesh Kumar
Gupta were reported to be hiding . He stated that on seeing the police vehicle the
accused persons attempted to flee but were apprehended on chase and on
interrogation Biral Roy and Vimlesh Kumar Gupta confessed their guilt and divulged
that they along with Raghubar Rai and other persons had committed the murder of
Nand Kumar Thakur on 15.7.2004 and threw the dead body into the flood waters.
These two apprehended accused also gave out that they could show the place where
the dead body was. He further stated that the police along with both the accused
persons started searching in the light of Petromax and torch but due to the late night
and fury of the flood water the search could not be concluded and on the following
day at about 7 A.M. the search started again and they proceeded towards
Dhrubgama along with accused persons by boat and the dead body Nand Kumar was
pointed out and identified by the apprehended accused. The dead body was lying in
a clump of bamboos and a shisham tree towards the north east corner of Dhrubgama.
The dead body was floating face upwards and was clad in Kurta- Payjama.
Chandrakant Thakur ( P.W. 2) who was accompanying the police party identified
the dead body of his brother by face and his ring . The dead body was brought to the
darwaja of Prabhakar Jee where the inquest report by carbon process was prepared
and the same was attested by him and Chandra Kant Thakur who put their signatures
11
thereupon. The statement of P.W.4 finds corroboration from P.W.2 and the
Investigating Officer (P.W.10).
20. The defence has assailed the impugned Judgment of conviction
and order of sentence on the ground that although Nand Kumar Thakur was found
missing from the night of 15.7.2004, no information about this fact was given to the
police by any of the relatives till the F.I.R. was lodged eight days thereafter. No
reasonable explanation is forthcoming from any of the prosecution witnesses for this
inordinate delay in lodging the F.I.R. . It is evident from the deposition of P.W.6, the
informant, that she had not stated anything to the inmates of the house, namely, her
mother-in-law and sister-in-law. The other aspect which had been asserted is that all
the witnesses who have supported the prosecution case are in some way related to the
deceased and the informant and the defence has put forward the plea of the evidence
being those of interested witnesses. Relying on the deposition of P.W. 3, it was
submitted that he had company of Suraj Sahni , Raj Kumar Sahni and the Samdhi of
his brother on the boat from which he had seen Nand Kumar Thakur being taken
away by the accused but curiously none of these independent witnesses have been
examined by the prosecution. Similarly, although several persons were present at the
time of recovery of the dead body and preparation of inquest report, none of these
persons were sought to be examined in the court or were made to figure as witnesses
of the inquest. In this context, it was sought to be pointed out with reference to the
deposition of P.W.10 that no investigation was held with regard to the alleged motive
and there is also no explanation as to why the confessional statements of Biral Roy
and Vimlesh Kumar Gupta were recorded at the Police Station at 11 A.M. after the
recovery of the dead body and not prior thereto when they had allegedly confessed of
their guilty on the previous evening and were in custody throughout the night.
21. The defence with reference to the postmortem report (Ext.3) and
the testimony of Dr.Ashok Bardhan Sahay ( P.W.9 ) who conducted the postmortem
12
on the dead body of Nand Kumar Thakur submitted that no external ante mortem
injury was found on the dead body which was swollen and putrefied and the face of
the dead body was moth-eaten and full of maggots . The cause of death was attributed
to asphyxia due to drowning and the time since death was given as 10 to 14 days.
22. From the prosecution evidence and the impugned judgment it
appears that the conviction is based primarily on the “last seen together” theory
ignoring the defence case as also the postmortem report and the evidence of the
doctor conducting postmortem examination as also the defence case. It is necessary to
mention that although the confessional statements of the two accused have been taken
into account, Vimlesh Kumar Gupta was not examined since he was shot to death
allegedly by the son of the informant. The other accused who confessed has been
convicted. A co-accused who confesses is naturally an accomplice and the danger of
using such extra-judicial confession is not far to appreciate. The danger is in no way
lessened when such confession is not on oath and cannot be tested by cross
examination. Prudence will dictate the same rule of caution in case of a witness who
though not an accomplice is regarded by the Judge as having no greater probative
value. That apart the Investigating Officer never sought to get the confessional
statement recorded under Section 164 Cr.P.C. In the circumstances no reliance can be
placed on the confessional statement and the corroboration thereof by P.Ws 2, 4 and
10 to the giving of the confessional statement becomes the evidence of hearsay
witnesses. Accordingly, the guilt of Section 302 and 201 I.P.C. has not been
established beyond all reasonable doubts.
23 . It appears that the conviction has been based entirely on
circumstantial evidence mainly the deceased being last seen with the accused and
apparent story of animosity between the deceased and Raghubar Rai on refusal by
the deceased to give the cattle mart on contract basis to accused Raghubar Rai. The
conviction purely on the basis of circumstantial evidence can be sustained only if the
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circumstantial evidence is such that leads to an irresistible conclusion that in all
human probabilities the murder of the deceased was committed by the accused. In a
situation where the motive for the occurrence remains in doubt and except for the
deceased being last seen with the accused it is rather hazardous to come to a
conclusion that the chain is complete to exclude all reasonable hypothesis consistent
with the innocence of the accused. The informant not informing anyone about the
missing of her husband for almost eight days till the recovery of the dead body is a
point which goes against the prosecution. Even otherwise, apart from seeing the
deceased being taken by boat, no one saw him thereafter till the dead body was
recovered eight days later does not by itself lead to a conclusion that it were the
accused persons who had committed the murder of the deceased. Even the guilt of
conspiracy cannot be fastened on the accused persons merely on vague
circumstances. No reason has been assigned why the boatman Biral Roy would enter
into conspiracy. Under Section 120B I.P.C. there must be an agreement between two
or more persons to commit an offence . It is manifest that a conspiracy is always
hatched in secrecy and it is impossible to adduce direct evidence of the same. The
offence can be only proved largely from inferences drawn from acts of illegal
omissions committed by the conspirators in pursuance of a common design. Nothing
has been brought on record to make any such inference. The allegation of offence
under Section 120B I.P.C. is also not proved beyond all reasonable doubts. Even
otherwise the prosecution evidence far from being of a compulsive nature is not free
from infirmities and doubt goes against the prosecution.
24. Having given my anxious thoughts to the evidence on record
and the submissions advanced by the learned counsels for the parties I am of the
opinion that the judgment of conviction and order of sentence recorded by the learned
Presiding Judge, Fast Track Court no.5, Samastipur, cannot be sustained and has to
14
be set aside and, accordingly , I do hereby set aside the impugned judgment and
order.
25. Accordingly, the Death Reference is answered in the negative and
the Appeals are allowed.
26. Accused Biral Roy was enlarged on bail by order dated 4.12.2006
of this Court. He is discharged from the liabilities of his bail bonds. The prayer for
bail of accused Raghubar Rai was rejected by this Court and he remains incarcerated.
In view of the acquittal, he is directed to be released from custody forthwith provided
he is not required to be in custody in connection with any other case.
(Abhijit Sinha, J)
Shiva Kirti Singh, J : I agree.
(Shiva Kirti Singh, J)
Patna High Court,Patna
Dated: The 11th December, 2008
Pradeep Srivastava/ A.F.R.