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DEATH REFERANC No.16 OF 2008
- - - - -
Reference made under Section 366 of the Code of
Criminal Procedure by Additional Sessions Judge-cum-
Presiding Officer, Fast Track Court No.V,Patna, by his
letter No.427 of 2008 dated 20.9.2008 in connection
with S. T. Case No. 188 of 2007.
- - - -
STATE OF BIHAR ... ... State
Versus
SHANKAR KANU @ SHANKAR SAO ... Condemned prisoner
With
CR. APP (DB) No.1224 of 2008
Against the judgment and order dated 18.9.2008
passed by the Additional Sessions Judge-cum-Presiding
Officer, Fast Track Court No.V, Patna in S.T. No.188
of 2007.
- - - -
RAM CHANDRA MAHTO ... ... Appellant
Versus
THE STATE OF BIHAR ... .... ... Respondent
With
CR. APP (DB) No.1265 of 2008
SHANKER KANU @ SHANKER SAO … … Appellant
Versus
THE STATE OF BIHAR … … Respondent
With
CR. APP (DB) No.1302 of 2008
1. ANIL URAON
2. Manohar Kumar
3. Ashish KLumar Rai … … Appellants
Versus
THE STATE OF BIHAR … … Respondent
For the Reference & the: Shri Ashwini Kumar Sinha,A.P.P.
Respondent(in the three appeals)
For the appellants: Shri Kanhaiya Prasad Singh,Sr. Adv.
(in three appeals) Shri Uday Kumar Singh,Adv.
P R E S E N T
THE HON’BLE SHRI JUSTICE C.M.PRASAD
THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA
– – –
Dharnidhar Jha, J.- The above noted Death Reference along
with three appeals arise out of the Judgment of
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conviction dated 18th of September, 2008, passed by
the learned Additional Sessions Judge-cum-Presiding
Officer, Fast Track Court No.V, Patna, in Sessions
Trial No.188 of 2007. They have been heard together
and are being disposed of by the present common
judgment.
While holding the appellants guilty of committing
offences under Sections 396 and 412 of the Indian
Penal Code by the above order of conviction the
learned trial Judge heard the appellants on sentence
on 19.9.2008 and awarded sentence of death to
appellant Shankar Kanu alias Shankar Sao. The
sentence of rigorous imprisonment for life was awarded
to appellants Anil Uraon, Manohar Kumar and Ashish
Kumar Rai for their respective convictions under
Section 396 of the Indian Penal Code. They were also
directed to pay fine of Rs. 5,000/- each and in
default in paying the fine were directed to suffer
further R.I. for six months each. The learned Judge
did not pass any separate sentence under Section 412
against any of the above noted appellants. As regards
appellant Ram Chandra Mahto, he had been convicted for
the charge under Section 414 of the Penal Code and he
was directed to suffer rigorous imprisonment for two
years for committing that particular offence. Awarding
sentence of death to Shankar Kanu alias Shankar Sao
necessitated submission of the records of the trial
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court to this Court under Section 366 Cr.P.C. and, as
such, the above noted death reference. Besides,
appellant Shankar Kanu alias Shnakar Sao also
preferred his appeal with other appellants.
2. The facts of the case as per the F.I.R.
and the evidence of witnesses are as follows:-
The deceased Papiya Ghosh was an
academician, teaching History in one of the premier
institutions of Patna, the capital city of Bihar,
namely, Patna Women’s College. She was a Bachelor, but
was residing in a very big house. Her parents, it
appears, had earned huge fortunes and different plots
of land were acquired by them in the posh area of the
city, known as Patliputra Colony. The house in which
the deceased was living was house No.168 in the
Colony. The other house bearing No.168A of the
locality was situated just by the side of the house in
which she was living. It appears from the evidence
that a maid servant, namely, Malti Devi was
accompanying Papiya Ghosh since her very childhood who
was working in the household on account of being
employed by her parents and she was residing in a
separate room in the same house. Pipiya Ghosh had
authored many books and was living a comfortable life.
Her household was fitted with many modern electronic
gadgets.
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3. It appears, things were normal in the
night intervening 2nd/3rd December, 2006 and both
Papiya Ghosh and her maid servant retired to their
beds after meals. No one knew what happened in the
dead of night. There was no movement of a soul till
the morning of 3.12.2006 when another maid servant,
namely, Geeta Devi,P.W.5) came there to perform her
course around 7-7.15 A.M. She came shouting to P.W. 1
Neeta Aditya to tell her that in spite of having
pushed the call bell, there was no response from
inside.
4. P.W.1 Neeta Aditya could say that she and
others of her family thought that Papiya Ghosh had
taken ill and, as such, she accompanied Geeta devi(
P.W.5) to the house of Papiya Ghosh and pressed the
call bell but no one came to open the door. She found
that the gate of the compound had no lock and, as
such, she entered into the verandah of the house from
that gate and pressed the call bell again. Getting no
response from inside, she pulled the door which
opened. Calling the deceased by her name, P.W.1
entered inside along with P.w.5 and found that
articles in the first room were all scattered and the
T.V. which used to be there was missing. The Almirah
of the other room was open and most of the articles
were lying on the ground. P.Ws. 1 and 5 entered the
3rd room which was the bed room of Papiya Ghosh and
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found that her dead body was wrapped into a quilt and
it had partially slipped towards the ground. There was
blood on the quilt and one of her legs was outside it.
She was dead. On touching the feet of Papiya Ghosh
she felt it cold and when she turned out the quilt,
she found that her omentum had come out.
5. Both P.Ws. 1 and 5 came out shouting and
frightened. People started dropping in. When some of
them had reached, they entered inside the other rooms
and it was found that in another room, which was under
occupation of the maid servant, she had also been
killed by piercing another weapon into her belly. All
the articles of the household were scattered or found
missing. The computer, music system, T.V. and most of
the household articles, it appeared, had been looted
away.
6. As may appear from the evidence of P.W.1
and other witnesses, the police was informed
telephonically. It reached there and Circle Inspector
Nagendra Kumar Singh (P.W. 23) came there along with
his patrolling party. He inspected the inner parts of
the house and he found that in one of the rooms
situated on ground floor towards south west of the
house, the dead body of Papiya Ghosh was lying which
was covered with a quilt. The quilt was soaked with
blood and the face was uncovered. There was a deep cut
injury on the belly. The deceased had bled and there
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were cut wounds also on her neck, cheeks, left eye and
right forehead. The deceased had bled from her ears
too. There was another wound also.
7. There was another room which was
connected by a door with the room situated west of the
above noted room of Papiya Ghosh and the maid servant
of Papiya Ghosh, aged 60–65 years, was found lying
dead by her belly. P.W. 23 found a deep cut mark on
the belly of Malti and whole of the floor of the room
splashed with copious blood. Almirah, attaché cases
and boxes were found open and the articles scattered
all over. The computer, its printer, monitor, C.D.
player, cordless phone, Sony colour T.V. of 21‖,
washing machine, ornaments, cash and a Maruti 800 car
bearing registration no. BR IV 5129 were found
missing. The mobile phone of Papiya with Sim
No.9334110212, was also found missing. P.W. 23 gave
the above details which he could get at the spot,
probably from persons assembled and noted that the
full details of other articles could be provided by
the family members of Sushri Papiya Ghosh.
8. P.W. 23, Circle Inspector Nagendra
Kumar Singh who was the Officer-in-charge of
Patliputra Police Station, drew up his own statement
in the form of Ext.7 and entrusted the investigation
to S.I. Kumar Abhinav (P.W. 28). On the basis of
Ext.7, Ext.8 the F.I.R. of the case was drawn up at
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9.15 A.M. on 3.12.2006 and P.W.28 S.I. Kumar Abhinav
took up the investigation.
9. While investigating the case, P.W. 28
recorded the statement of the informant, inspected the
place of occurrence, i.e., the house No.168 of late
Papiya Ghosh which had on its south west the other
house of the family bearing no. 168A. He inspected the
place- of- occurrence-rooms and noted down their
descriptions in the case diary. He found a blood
stained knife on the bed over which late Ghosh was
lying and the whole of the drawing room was found in a
disorderly condition. It was not that things were
scattered in the room and other places of the ground
floor, rather, things were also found in disorganized
and disorderly fashion on the upper floor also. The
grill gate which was fixed in the boundary wall of the
house was also found unlocked though barbed wire had
been fixed at the top of the boundary wall from all
around. The suit cases, boxes, etc. kept on the floor
were also found in a disarray. P.W. 28 found that
there were marks left on account of removal of
different articles from the household and further
found that there was tyre mark left on account of
movement of the vehicle and that the articles kept in
the Almirah were all scattered.
10. The inquest reports, Exts. 3 and 3/1,
were prepared by S.I. K.P.Singh by the orders of
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Circle Inspector Nagendra Kumar Singh. The statements
of witnesses present at the place of occurrence were
recorded. The photograph of the scene of the
occurrence was also taken by hiring the services of
the photographer.
11. The kitchen- knife which was found on
the bed of Papiya Ghosh was seized by P.W.28 by
preparing seizure report, Ext. 11, in presence of two
witnesses Aisan Kumar (P.W. 15) and Jesan Kumar( P.W.
26) who were the grand sons of deceased Malti Devi.
Some of the blood soaked clothes, like, the mattress,
quilt, sleeping gown and underwear were also seized by
preparing seizure memo Ext.11.
12. It came into light during course of
investigation that Papiya Ghosh had a cellular phone
with Sim No. 9334110212 and that had also been taken
away by the criminals and, as such, a request was made
to the service provider M/S Reliance India Ltd. for
supplying the call details of the said cellular phone
along with time of its activation and the location of
tower details.
13. It appears that considering the nature
of the offence and its impact on social order, Senior
Superintendent of Police, Patna, formed an
investigating team consisting of Circle Inspector
Nagendra Kumar Singh (P.W.23) S.I. Abhaay Narayan
Singh( P.W.25), the officer-in-charge of Gardanibagh
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Police Station and S.I. K.K.Singh( P.W. 27), the then
officer-in-charge of Budha Colony Police Station,
S.I. Ajay Kumar, the then officer-in-charge of Kotwali
Police Station, who were to assist P.W. 28 in
investigation.
14. Six steel knives were recovered from
the room where Papiya Ghosh was murdered along with
other articles which had blood stains over them the
seizure of the knives was witnessed by the above noted
witnesses, P.W. 15 and P.W. 26.
15. As may appear from the evidence of
P.W.28, S.I. Kumar Abhinav and P.W. 25 S.I. Abhay
Narayan Singh who were also the members of the
investigating team formed by the Senior Superintendent
of Police, Patna, that the Manager of Reliance India
Ltd. informed P.W. 28 S.I. Kumar Abhinav that a call
had been made at 12.30 P.M. from the cellular phone of
the deceased which had been taken away by the
criminals on to another cellular phone bearing Sim No.
9334134807 and that the tower location of the call was
in between the clinic of Dr.Hai and Kurji. This
information was passed on by P.W. 28 to the higher
police Officers. P.W.25 was directed to investigate
into the details of the call as to who had made the
call from the cellular phone bearing Sim No.
9334110212 to another phone bearing no.9334134807.
P.W. 25 investigated into it and found that the
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cellular phone which received the call was registered
in the name of one Ashok Kumar( p.W. 17). P.W. 28
questioned Ashok Kumar by calling him to his Police
Station and he admitted that indeed he had received a
call from the cellular phone of the deceased and was
asked by the caller as to where he was and further
that he should switch off his cellular phone( P.W. 25,
paragraph 1). This information was given to the
investigating Police Station Patliputra. P.W. 25 got
further direction and accordingly he came to
Patliputra Police Station and Ashok Kumar( P.W. 17)
was questioned by all the Police Officers including
the Investigating Officer( P.W. 28). He stated that he
could take them to the person who had given the call
to P.W. 17 from the area described by him as Kurji
Balupar. Accordingly, a team of Police Officers
consisting of Circle Inspector-cum-Officer-in-charge
of Patliputra Police Station, K.N. Singh, Circle
Inspector-cum- officer-in-charge of Kotwali Police
Station, Ajay Kumar, Circle Inspector-cum- Officer-
in-charge of Patliputra Police Station, Circle
Inspector Nagendra Kumar Singh and the Investigating
Officer of the case, (P.W. 28) set out with P.W. 17
at about 7 P.M. and reached a place described as house
of one Jalandhar Rai situated in Kurji locality. P.W.
17 pointed to them a particular room and when it was
got opened two persons, that’s,appellants Manohar
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Kumar and Ashish Kumar Rai were found sleeping there.
On search of that particular house Sony Colour T.V.
of 21‖, music system of Phillips, a L.P.G. cylinder, a
pearl neckless and many other articles were
recovered as per details contained in seizure memo
Ext. 11/12 available at pages 525 to 527 of the Paper
Book. The seizure memo was prepared in respect of the
seized articles in presence of two witnesses and a
copy of seizure memo Exts. 11/12 was also given to
both the appellants Ashish Kumar Rai and Manohar
Kumar.
16. The two appellants Manohar Kumar and
Ashish Kumar Rai were questioned by the police after
being arrested at the very place and they confessed to
their guilt of committing the offence along with other
accused persons, namely, Shankar Kanu alias Shankar
Sao, Sanyog Rai, Ashish Kumar Rai and Md. Mustakim in
the night intervening between 2nd/3rd of December,
2006 and pointed out that those were the articles
which belonged to the deceased Papiya Ghosh and had
been removed by them after committing their murders.
On further questioning the two above named appellants
Manohar Kumar and Ashish Kumar Rai pointed out the
whereabouts of Shankar Kanu alias Shankar Sao.
17. The police, accordingly, came to Chauhan
Apartment situated in New Patliputra Colony and found
Shankar Kanu alias Shankar Sao sleeping in the
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servant room. Shankar Kanu alias Shankar Sao was
arrested and searched and the cellular phone of the
deceased Papiya Ghosh bearing Sim No.9334110212 was
recovered from him. Shankar Kanu alias Shanker Sao was
questioned there and he confessed to his guilt and
pointed out that the articles which were looted from
the house of Papiya Ghosh after committing her murder
were, in some part, lying at his house and some were
in possession of his companions and that he could get
them recovered after going to those places.
Accordingly, the Police brought Shankar Kanu alias
Shankar Sao, firstly, to his house situated in the
same locality Kurji, Balupur, and searched the room
belonging to him. On opening a box, the police found
the owner book in respect of the vehicle of Maruti Car
of Papiya Ghosh as also the photo copy of the driving
licence which had the photograph of Papiya Ghosh over
it. Some bank cheques, already bearing signature of
Papiya Ghosh, were also found there. Those articles
were seized after preparing the seizure memo along
with other articles, as may appear from the evidence
of P.W. 28 in paragraph 38, which corresponds to the
seizure memo Ext. 11/4, available to us at pages 530
and 531 of the Paper Book. A copy of the seizure memo
was made over to appellant Shankar Sao also.
18. The three apprehended appellants were
brought thereafter, with seizure witnesses on account
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of being led by appellant Shankar Kanu alias Shankar
Sao to the garage of one Harinandan Singh which was a
tin roofed structure, situated by the road side and
the same was searched by the police officers. The
Maruti Car 800 having no number plates either in front
or back of it and which had chassis no.SB-308-IN- and
178912 and Engine No.F.8 PIN 2483877 was found kept
there. Inside the vehicle was found a lock upon which
a particular number was engraved. Other articles as
per details available to us in paragraph 38 of the
evidence of P.W. 28 (which correspond to the seizure
memo Ext. 11/5.) were also found. On the back of the
seat of the vehicle some clothes were found bundled up
in a piece of cloth and those were saries and
different wearing apparels of the deceased.
Accordingly, those were also seized as per the above
seizure memo.
19. The three accused who were in custody,
namely, appellant Shankar Kanu alias shankar Sao,
Manohar Kumar and Ashish Kumar Rai promised the police
to lead them to accused Sanyog Rai, Md. Mustakim and
Anil Uraon who had also some parts of the theft
properties in their respective possessions.
Accordingly, the raiding party along with the accused
persons in custody, came to the house of accused
Sanyog Rai. Sanyog Rai was not found inside the house,
but the house as per description in paragraph 43 of
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the evidence of P.W. 28 was searched. From inside a
room situated in the southern part of the house, a
Flatron computer monitor of L.G. make, Key board,
Microsoft CPU, of L.G, two speakers, a printer of
H.P., the cheque book in respect of S/B Accounts No.
106160 containing cheque numbers S/B 198571 to 198580
of which those bearing from serials no. 198571 to
198574 had been utilized and which account was held
by the deceased in Allahabad Bank as also the Pass
Book of S/B accounts of Punjab National Bank,bearing
S.B.Account No.177440 were recovered. The seizure list
was prepared in respect of the recoveries made from
the house of accused Sanyog Rai, a copy of which was
handed over to his father Nagina Rai. This seizure
memo is Ext. 11/6 which is available to us at page 534
of the Paper Book.
20. The police party with three accused in
custody started from the house of Ram Sanyog Rai to
the house of appellant Anil Uron, who as per
information given by the arrested accused, was also in
possession of certain properties belonging to the
deceased. While proceeding towards the house of Anil
Uraon, the police found a person moving on the road
and that particular man was pointed by the three
accused as appellant Anil Uraon. He was stopped and
questioned and gave his name as Anil Uraon and
readily confessed to his guilt finding the three
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other accused in custody. He was searched. His cloth
had some blood mark on it and from the pocket of his
pant Pound-currency- notes two in number, each of 20
denomination were recovered which had been issued by
the Bank of England and which bore numbers as
indicated in paragraph 44 of the evidence of P.W. 28.
The other recovery was of an Allwyn lady watch of
golden colour fitted with leather belt, an ornament,
which articles were also seized vide seizure memo
ext.11/7, a copy of which was handed over to appellant
Anil Uraon.
21. On questioning Anil Uraon, it came into
light that the front and rear plate numbers of the car
of the deceased had been handed over to one M/s Munna
Arts for repainting by the accused persons.
Accordingly, all the accused persons in custody were
taken by the police to the saidM/s Munna Arts and
during search the two number plates were found there
which had new numbers written over them as BR-IR-1881
which inscription was fresh and new.
22. The owner of the said Munna Arts was
questioned by the police and he has been examined as
P.W. 11 in the case, who admitted that his profession
was creating number plates of different vehicles. He
stated that the three appellants brought by the police
to his house on 16.12.2006 had handed over to him the
two number plates for repainting on 11.12.2006. This
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witness P.W. 11 had identified the two accused as
Shankar Kanu alias Shankar Sao and Anil Uraon in court
during his evidence as may appear from his evidence in
paragraph 11. P.W. 2 further stated that the number
which was previously written on the two number plates
and which had been defaced by rubbing could be read by
him and that number was BR-IV- 5129. He had been told
by the accused to write No.BR-1R-1881 and,
accordingly, he had created the new number over the
old number plates which had been seized by the police
from his shop. The seizure memo in respect of two
number plates has been marked Ext. 11/8. The two
number plates have also been marked material exhibits
as may appear from Paragraph 4 of the evidence of P.W.
11. It may appear further from the evidence of P.W. 11
that he had noted down the number desired to be
painted by the accused persons on the reverse side of
the two plates for memory purpose, so that the number
was correctly written on the plates( P.W. 11,
paragraph 8).
23. After having recovered the two number
plates recreated on the number plates of the vehicle
of the deceased, as indicated above, the raiding party
moved further from that place to come to the tyre
puncture repairing and air filling shop of accused Md.
Mustakim Mian which was situated at Makhdumpur Digha,
and which was found closed by putting a lock on a
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Chachari gate(manufactured from Bamboo) on it. A
Micro Oven made by Nikai, Japan, was found concealed
amidst the old tyres in the south-eastern corner of
the shop. It was further found that the micro oven was
bundled into an old window curtain. The police party
found a Tata phone of white colour, another phone set
of Beetel make, a cordless phone set of Sony carrying
some descriptions over it along with a charger and an
umbrella of blue colour over which Mist Harbour was
written and an automatic umbrella of blue and white
colouer, brass plates and other utensils used in
worship, rituals brass candle stand were also seized
by preparing the seizure memo Ext. 11/3. The police
returned back along with the seized articles and the
arrested accused persons. Md. Mustakim was also not
found and could not be arrested till date of judgment.
24. During questioning of the accused
persons on 16.12.2006 at 5.30 P.M. it was learnt by
the police that the washing machine which was removed
from the house of the deceased was given to appellant
Ram Chandra Mahto, a practicing Advocate who was
residing in Ashiyana Nagar under Shastrinagar Police
Station, Patna, and, accordingly, the house of
appellant Ram Chandra Mahto was searched. It was a
pucca house of appellant Ram Chandra Mahto and the
police found there a fully automatic washing machine
with black paint on its rear side. This machine was
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seized and seizure memo Ext. 11/10 was prepared. The
washing machine was produced during course of hearing
of the case and it was marked material Ext. 2/35 by
the learned Judge. A copy of the seizure memo Ext.
11/10 was handed over to appellant Ram Chandra Mahto.
25. During the course of investigation
P.W. 28 entered into correspondences with the District
Transport Officer, Patna, and the Manager, Reliance
India Ltd. for ascertaining the ownership respectively
of the seized vehicle as also the registration of the
Sim Card No. 9334110212 issued by M/s Reliance India
Ltd. P.W. 28 was informed by the District Transport
Officer, Patna that the seized car which bore the
chassis and vehicle number as indicated in some
earlier part of the present judgment was registered
in the name of the deceased Papiya Ghosh, daughter of
Sri U.K.Ghosh, resident of 168 Patliputra Colony,
Patna, and that the engine and chassis number tallied
with those which were appearing on the recovered
vehicle and which were noted down by the police during
the course of its seizure. Likewise, the Manager of
Reliance India Ltd. also furnished the details of the
cellular phone. It was found that it bore no. RS No.
RLGHS 1000309516, M.D. No. 6123110212 and was
registered in the name of Papiya Ghosh of Indian
nationality, resident of 168, Patliputra Colony,
Patna, which tallied with the full details of RS No.
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of the phone which was recovered from the possession
of appellant Shankar Kanu alias Shankar Sao. Not only
that, P.W.28 represented to the Chief Judicial
Magistrate, Patna of deputation of any Magistrate for
overseeing the T.I.Parade of the seized articles and
accordingly Shri Nirmal Kumar( P.W. 24), who was the
Block Development-cum-Circle Officer, Patna, was
ordered to be deputed for the purpose. Accordingly,
the T.I. Parade of articles was held on 26..12.2006 by
calling P.W.14 Kamla Ram who was the son of the
deceased Malti Devi and his two sons P.W. 15 Aisan
Kumar and P.W. 26 Jesan Kumar and, accordingly, the
articles were identified by them in the T.I. Parade
organized for identification of the seized properties.
The T.I. Charts have been marked ext. 9 series and the
objects have also been marked as various material
exts. The blood stained articles were also sent to the
Forensic Science Laboratory, Patna, and after
completion of the investigation, the appellants were
sent up for trial keeping the investigation pending
against the absconding accused Md. Mustakim and Sanyog
Rai. This is how the appellants were tried and
convicted as indicated at the very out set of the
present judgment.
26. In support of the prosecution
charges, as many as 30 witnesses were examined. None
of these witnesses are eye witnesses to the
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occurrence. In fact, no one had seen the occurrence
being committed in his presence. The witnesses have
been examined on one fact or the other or, in other
words, on one circumstance or the other. The core
evidence against the appellants, as may appear from
the above narration, was the very information of the
accused persons while in police custody which led to
recoveries of different articles from different places
and identification of those articles by P.Ws. 14,15
and 26 as belonging to the deceased. The legal
inference of culpability and knowledge as also the
inference of participation of the appellants in the
commission of the twin murders or theft of the
properties is based only on the above available on
record.
27. The defence of the appellants was of
innocence and also of being falsely implicated under
some influence, as suggested by the appellants, so as
to giving a clean chit, to P.Ws. 15 and 26 the two
brothers Aisan Kumar and Jesan Kumar, who are the two
grand sons of the other deceased Malti Devi. The other
defence of the appellants, which was agitated before
us was that some records were created in support of
the prosecution even during the course of examination
of the witnesses so as to lending credence to the
evidence not only of recovery of different articles,
but also of their ownership.
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28. We have heard Shri Kanhaiya Prasad
Singh, learned Senior Advocate appearing for appellant
Ram Chandra Mahto and also Shri Uday Kumar Singh,
learned counsel appearing on behalf of the remaining
appellants.
29. Shri Uday Kumar Singh was highly critical of the prosecution approach in leading
evidence and was submitting before us that there being
no eye witness to the occurrence or no evidence, in
fact, connecting directly any of the appellants with
the crime. The police has simply created unacceptable
materials so as to getting a judgment of conviction
against the appellants from the trial Judge who in
spite of the materials on record, appears falling in
error of acting on that fabricated evidence. Shri
Singh took us through the evidence of each and every
witness and contended that the interestedness of the
Investigating Officer and whole of the police
establishment was of such a class and degree that
while P.W. 14 was amidst his cross examination, they
created evidence by allegedly searching the house of
the deceased on 8.5.2007 and showed recovery of
certain packing materials in respect of different
articles said to be recovered from the possession of
different accused persons which were allegedly taken
away by the accused persons by committing the twin
murders on account of their seizure on 8.5.2007 and
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those cartons or packing materials were produced in
court as evidence of the articles belonging to late
Papiya Ghosh and accordingly the evidence was led
through P.W. 14 in paragraph 66 that he was called by
the police and the house was re-searched to recover
those articles. It was further contended that it was
not the end of the matter. The police prepared seizure
memos of different vouchers/ receipts issued to the
deceased late Papiya Ghosh for purchasing different
articles which were the subject matters of theft from
different retailers and the copies of the vouchers
which were got generated electronically to be seized
and produced in court by different seizure memos
which were dated 12.5.2007. It was contended that P.W.
15( Aisan Kumar) was examined in court on 26.4.2007
and his cross examination was concluded on 21.5.2007
and it is unusual that further investigation was done
amidst the evidence of that particular witness along
with others. It was as such contended that the Court
should reject whole of the above evidence on account
of being fabricated so as to strengthening the
prosecution evidence to obtain a conviction of the
appellants of the charges.
30. It was contended that the seizure
witnesses, like, P.Ws. 18, 19, and 20 did not support
the seizure along with P.W.12 and as such the evidence
of recovery of articles consequent upon the
23
information received from the accused, appears of no
consequence. It was contended further that the
appellants appear being picked up by the police for
creating some evidence so as to calm down the public
outcry as also to satisfy some of the higher ups,
like, one of the sisters of the deceased, namely, Smt.
Tuktuk Ghosh being one of the high ranking officer in
the services of the Indian Union. It was contended
that the whole investigation, prosecution and
conviction of the appellants is fit to be rejected.
31. Shri Uday Kumar Singh also contended
that the F.I.R. is a doubtful document as it mentions
some of the articles which were removed by the
culprits from the house of the deceased. It was
contended that there was no mention in the document,
Ext.7, as to who had pointed out the removal of these
articles from the house of the deceased. It was
contended that there is completely no evidence about
theft of the properties from the house of Sushri
Papiya Ghosh against any of the accused persons. It
was next contended that Papiya Ghosh’s sister Smt.
Tuktuk Ghosh was not examined and there was no reason
as to why she was feeling shy in making any statement
either on facts of the case including the details of
the articles. It was next contended by Shri Uday Kumar
Singh that the articles had been shown to the P.Ws as
has been testified by PW. 26 in paragraph 73 and
24
thereafter the T.I. Parade was organized so that they
did not have any difficulty in identifying them. It
was contended as such that the T.I. parade Charts,
Ext.9 series were table works having no sanction of
law and procedure. Learned counsel appearing for the
appellant Shankar Kanu alias Shankar Sao and others
also made submission on sentence that all the
appellants except Ram Chandra Mahto were young persons
and it was their first offence. Their whole lives were
ahead of them. They do not bear any previous history
of conviction and it was a fit case in which a chance
must be given to them for reforming themselves.
32. Shri Kanhaiya Prasad Singh, learned
Senior counsel took us through the provision of the
Indian Penal Code in respect of retaining or
possessing properties obtained in theft and then
submitted that the conviction of appellant Ram Chandra
Mahto under Section 414 of the Penal Code was not
justified as the offence Under Section 414 and the
offence under Section 412 of the I.P.C. do not go
hand in hand. Shri Singh submitted that the offences
under Sections 411/412 of the Penal Code are different
from the offence under Section 414 of the Penal Code.
The charge was under Section 412 of the Penal Code and
as such the conviction of appellant Ram Chandra Mahto
under Section 414 of the Penal Code was not legally
fit to be sustained. Shri Singh has referred to us
25
some of paragraphs of the judgment impugned on
discussions of the evidence and ultimate finding of
guilt in respect of appellant Ram Chandra Mahto,
like paragraph 64 and has referred also to some of the
judgments, like, A.I.R. 1955 S.C. 274, Nanak Singh Vs.
State of Punjab A.I.R. 1956, S.C.116 Willie(William)
Slaney Vs. State of Madhya Pradesh and A.I.R. 1928
Bombay, 145 Emperor Vs. Hanma Timma Bhandiwaddar to
submit that the offence under Section 411 of the Penal
Code on receiving of stolen property and that under
Section 414 of assisting to conceal stolen property
being distinct from each other, the conviction of the
appellant under Section 414 of the Penal Code without
there being any charge under that section was not fit
to be sustained. It was further contended that by
virtue of his statement under Section 313 Cr. P.C.
that he was handed over the washing machine by Shankar
Kanu alias Shankar Sao, appellant Ram Chandra could
not be assigned the knowledge that it was a stolen
property and still he retained the property in his
possession. Shri Singh also referred to the evidence
of P.Ws. 18 and 19 and the provision of Section 104 of
the Cr.P.C. to submit that they were not willing
witnesses to associate themselves with the search and
seizure rather they were forced to put their
signatures over the document without being associated
with that part of investigation. Shri Singh pointed
26
out to us that the very manner of keeping the washing
machine and also the very place where it was kept
could give rise to an inference that it was not the
possession knowingly obtained by appellant Ram Chandra
Mahto and there was no evidence on record to show that
the receipt of the property was dishonest.
33. As against the above, Shri Ashwini
Kumar Sinha, learned Additional Public Prosecutor has
submitted that the information given by the accused
persons in custody of the police and consequent
recoveries are the foundation of the prosecution
evidence. The seizure witnesses have, of course, gone
hostile but that may not be of any avail to the
defence because they had admitted that they had signed
the seizure memo and they had also admitted that the
search and seizure were made in their presence and
their writings to the above effect were there on it.
Shri Sinha placed reliance upon (2006) 2 S.C.C.(Cri.)
444, Surendra Singh Vs.State of Haryana It was
contended that once recovery was consequent upon the
information given by the accused persons, the burden
to explain the possession of the articles obtained
through theft by committing the twin murders and their
participation in the offence rested upon them. It was
submitted that even if there had not been any T.I.
parade, it was of no consequence as the articles were
all bearing manufacturing serials number, etc. and the
27
documents regarding their purchase by or possession of
the deceased, that’s, the receipts were produced
during the course of hearing.
34. As regards the conviction of
appellant Ram Chandra Mahto, it was contended by Shri
Sinha that he could not derive any benefit of being
convicted of offence which was different from the one
under which he had been charged in the light of the
provision of Sections 221 and 464 Cr. P.C. It was
contended that the trial court took a lenient view of
sentencing while passing of sentence upon appellant
Ram Chandra Mahto.
35. Shri Sinha contended that awarding
death sentence to appellant Shankar Kanu alias Shankar
Sao and awarding rigorous imprisonment for life to
appellants who also appear convicted on same and
similar nature of evidence does not conform to the
principle of uniform sentence for equal offence and
participation in it. Shri Sinha was fairly conceding
that the appellants other than Shankar Kanu alias
Shanker Sao were being awarded rigorous imprisonment
for life and it was required of the learned trial
Judge to be uniform in equally awarding the same
sentence to appellant Shankar Kanu alias Shankar Sao.
Though Shri Sinha was very strongly arguing that it
could be a very fit case coming under the category of
the rarest of rare cases, but one could not choose one
28
accused out of many to hang him to death while the
other equal participants could be directed to suffer
rigorous imprisonment for life. It was contended by
Shri Sinha that in absence of any appeal for
enhancement of sentence in respect of appellants Anil
Uraon, Manohar Kumar and Ashish Kumar the court is
free to pass equal sentence upon them and while doing
so the court must apply the principle of Shraddanand
Swami’s case.
36. Before I grapple with the contentions
of the sides to record my findings on facts of the
case, I want to point out that the witnesses could be
categorized in more than four classes. I have mainly
categorised them in three categories. P.Ws. 1 and 5
are witnesses to speak of their being no response from
inside the house when P.W. 5 Gita Devi, a maid servant
of the deceased, reached early in the morning to do
the household cores. She informed that P.W. 1 Neeta
Aditya and this is how the two entered inside the
house. P.W. 2 Ram Prasad was a labourer, who as per
his evidence was doing maintenance works in the house
of the deceased for about one month and on the eve of
the occurrence he had been paid his labour charges by
the deceased, late Papiya Ghosh. He stated that he
came on picking up a rumour about his temporary
employer being murdered with her maid servant and
found the dead bodies in her house. The other class of
29
witnesses is of those who witnessed seizure of
different articles from different places on pointing
of the accused persons or on searches made by the
police.
37. The third class of witnesses are
officials like the Police Officers associated with the
investigation of the case and the circle officer,
Patna, who supervised T.I. Parades. The category of
seizure witnesses includes P.W. 3 Alok Ranjan who
noticed that on 15.12.2006 a vehicle and some police
personnel having come in the neighbourhood of his
house at Mohalla Kurji Balupar came there with P.W. 8
Om Prakash and both of them were requested by the
police to accompany them in searching different houses
and places and the first house searched was that
belonging to appellant Shankar Kanu alias Shankar Sao
who was the fourth son of one Yugeshwar Sao. He has
testified the recoveries of different articles from
the house of the above noted accused in respect of
which Ext. 11/4 was prepared. He,( P.W. 3) further
stated in paragraph 5 of his evidence that the two
witnesses along with the police personnel were led to
a garage which had a lock over it and which once used
to be of one Harinandan Singh. The witness stated that
the key of the lock was produced by accused Shankar
Kanu alia Shankar Sao and the garage was unlocked and
a Maruti 800 Car of white colour was found kept there.
30
The doors of the car were pulled open and the
properties were found kept there in a bundle of cloth
and those were seized, as per his evidence in
paragraph 5 and as per the descriptions of the
properties in Exts. 11/4 and 11/5.
38. P.W. 8 Om Prakash Puri has not
supported the above statement of P.W. 3 but both of
them ( P.Ws. 3 and 8) have admitted that the
recoveries were made in their presence. Om Prakash
Puri( P.W.8) was declared hostile. But, if he was
admitting the searches being made and further if he
was admitting his writing and signature on the seizure
memos, then the Court has little to say on the
veracity of the witness and his subsequent conduct of
turning hostile. The witness had really witnessed the
search and seizure of the articles as per Exts. 11/4
and 11/5. Thus, the evidence of those witnesses( P.Ws.
3 and 8) when read in the light of the evidence of
police witnesses, like, P.W. 25 S.I.Abhay Narayan
Singh and P.W. 28 S.I. Kumar Abhinav establishes the
fact that accused Shankar Kanu alias Shankar Sao led
the police to places where properties belonging to
the deceased were concealed and those were the
properties discovered consequent upon the information
given by appellant Shankar Kanu alias Shankar Sao to
the police while he was in custody.
31
39. The other witnesses in the above category
are other seizure witnesses like P.Ws. 4 Kumar Ranjan
Singh and P.W. 20 Pintu Kumar who had witnessed the
search of the house of absconding accused Sanyog Rai
by the police on account of being led to that place by
appellants Shankar Kanu alias Shankar Sao, Ashish
Kumar Rai and Manohar Kumar. The recoveries were, as
per the seizure memo Ext. 11/6. Those witnesses too
did not support the search and seizure being made in
their presence. But, both of them(P.Ws. 4 and 20) have
admitted by writing over Ext. 11/6 that the properties
described in Ext. 11/6 were recovered in their
presence. They have further admitted their respective
signatures being genuine. Thus, the evidence of these
witnesses, in spite of turning hostile, appears
sufficient to establish that on searches, recoveries
were made of the properties which were belonging to
the deceased, as per their own evidence.
40. The above noted witnesses( P.W. 4 Kumar
Ranjan Singh and P.W. 20 Pintu Kumar) were brought
along with the accused persons who were in police
custody to another place and while the police were
moving on road they found appellant Anil Uraon going
by the road and he was questioned and taken into
custody. From his possession two notes of 20 pounds as
also a lady watch of Allwyn make which were said to be
belonging to the deceased which, as appears from the
32
confessional statement of appellant Shankar Kanu alias
Shankar Sao, was handed over to appellant Anil Uraon
were also recovered from his pant- pocket as per
evidence of P.W. 28 S.I. Kumar Abhinav and those were
recovered in presence of P.Ws. 4 and 20, vide Exts.
11/7 and they again wrote over the seizure memo that
the articles were recovered in their presence. They
have admitted the writings and their signatures.
41. P.W. 9 Harendra Ram is the son of
Jalandhar Rai and his house is situated at Kurji
Balupar. It may be recalled that after a call was
received by P.W. 17 Ashok Kumar from the cellular
phone of the deceased and details were supplied by the
service provider, i.e., Reliance India Ltd., the
police called P.W. 17 and questioned him who led them
to the house of Jalandhar Rai situated at Kurji
Balupar and, accordingly, a room was pointed out by
P.W. 17 where the person making a call could be found.
A knock was given at the door. The door was opened.
Appellants Manohar Kumar and Ashish Kumar Rai were
found inside and a search of the room was made in
presence of P.W. 9 Harendra Rai and P.W. 10 Rikky
Kumar. In fact, the evidence of P.W. 10 Rikky Kumar
indicates that the police had made enquiries from him
about the location of the house of Jalandhar Rai and
it was P.W. 10 who had led the police to that
particular house. On search of the house of Jalandhar
33
Rai, articles, such as Sony Colour T.V., Phillips
music system, L.P.G. cylinder, stabilizer, etc. which
were said to be the properties of the deceased were
recovered as per the evidence of P.W. 9 Harendra Rai
and P.W. 10 Rikky Kumar and also in the light of the
evidence of P.W. 28 Kumar Abhinav and P.W. 25 S.I.
Aabhay Narayan Singh and, accordingly, seizure memo
Ext. 11/2 was prepared by the police in presence of
P.Ws. 9 and 10. Both the witnesses have testified to
the recovery of the articles on the basis of their
evidence which were also marked as material Exts.
42. During course of argument Shri Uday
Kumar Singh learned counsel appearing for the
appellant Shankar Kanu alias Shankar Sao and others
was criticizing the evidence of P.Ws. 9 and 10 on the
ground that the witness P.W. 9 has stated in paragraph
10 of his evidence that he was put in the police lock
up for two days and was threatened to give evidence
then only he would be released. The argument appears
of no merit inasmuch as if there was threat that he
would be released only when he had given evidence in
the case, then it could be presumed that the witness
was in confinement and produced before the court
under arrest. The order of the court below dated
10.4.2007 on which date P.W. 9 Harendra Rai was
produced by learned Additional Public Prosecutor for
his evidence, does not indicate that he was produced
34
under arrest. The other reason for rejecting the
argument is that there was no hindrance for the
witness when he appeared before the court below for
giving evidence to file a petition to the above effect
that he had been threatened or was confined by being
put in police lock up for giving his evidence. The
witness appears further stating in paragraph 10 that
the police had put a lock in a room from which the
recoveries were made, but again he appears not
bringing into the notice of the court the above fact
through a proper petition for delivery of possession
of the said room after removal of the lock. On these
grounds the contention appears hollow and fit to be
rejected.
43. Other argument which was advanced by
Shri Uday Kumar Singh was that the witness, P.W.9, had
given his evidence on recovery of articles in the
court not out of his own free will. The recoveries
were made in presence of P.W. 9 Harendra Rai appears
established by the fact that in paragraph 26 of his
cross examination the witness has stated that he had
seen the articles which were marked Exts. During
course of his deposition he stated that the articles
had been seen by him on the day of their recoveries
also.
44. Shri Singh was contending that the
recovery memo Ext. 11/2 indicates that the search was
35
made in the house of Jalandhar Rai but the police
Officers have stated that it was the house of Harendra
Rai. As may appear from the parentage of P.W. 9 he is
the son of Jalandhar Rai and if the witness is taking
the name of his son instead of the real landlord it
was not going to make any difference. Both P.Ws. 9 and
10 have stated that the articles were recovered in
their presence and they, accordingly, signed the
seizure memo.
45. The other witnesses belonging to the
above category of seizure witnesses are P.W.12
Rabindra Kumar and P.W. 13 Shravan Kumar Gupta. It may
be recalled that after the search of the house of
Jalandhar Rai or of P.W. 9 Harendra Rai, the
appellants Manaohar Kumar and Ashish Kumar Rai were
taken into custody and they pointed out to the police
that Shankar Kanu alias Shankar Sao could be found in
Chauhan Apartment in New Patliputra Colony, Patna.
Accordingly, the police along with the two arrested
accused Manohar Kumar and Ashish Kumar Rai came to New
Patliputra Colony and on being led by the two
appellants to the guard room of that apartment,
accused Shankar Kanu alias Shankar Sao was found lying
there who was identified by the above appellants.
Shankar Kanu alias Shankar Sao was arrested and he was
searched and from the right pocket of his full pant a
cellular phone with Reliance Sim was recovered in his
36
presence. P.W. 12 Rabindra Kumar turned hostile and
did not support the search of person of accused
Shankar Kanu alias Shankar Sao and recovery of the
cellular phone, though he admitted that he had signed
a piece of paper. He has further admitted in his
evidence in paragraph 3 that he had written that the
seizure was made in his presence and, accordingly, he
had signed the document. As regards P.W. 13 Shravan
Prasad Gupta, he has fully supported the fact of
search of the person of present appellant Shankar Kanu
alias Shankar Sao and the recovery of the cellular
phone. In spite of P.W. 12 being hostile his very
admission of the fact that he wrote about the search
being made in his presence and further that he signed
the seizure memo makes it utterly meaningless
whether he was supporting the seizure or not through
his evidence in court. The evidence of P.Ws. 12 and 13
proved quite satisfactorily that on search of the
person of accused Shankar Kanu alias Shankar Sao the
recovery of the cellular phone was made.
46. P.W. 18 Jitendra Kumar and P.W. 19
Pappu Singh are the witnesses in whose presence the
house of appellant Ram Chandra Mahto was searched and
a fully automatic washing machine was recovered. P.W.
18 Jitendra Kumar has testified to the above facts
besides stating that copy of the seizure memo was also
made over to appellant Ram Chandra Mahto. P.W. 19
37
Pappu Singh did not support this fact and as such he
was declared hostile. But, Ext. 11/10 which is the
seizure memo in respect of the recovery of washing
machine from the house of appellant Ram Chandra Mahto
indicated that both the witnesses had written in their
own hands that the washing machine was recovered in
their presence and they duly signed over it which fact
was admitted even by P.W. 19 Pappu Singh. Thus, the
search of the house of appellant Ram Chandra Mahto and
recovery of the washing machine therefrom is fully
established.
47. It is not that the recoveries of articles
were made from different places in presence of the
witnesses as pointed out in some earlier parts of the
judgment, but those properties were also put on T.I.
parade in presence of P.W. 24 who was the Block
Development Officer-cum-Circle Officer, Patna, and who
was deputed by the Chief Judicial Magistrate, Patna
for conducting the T.I. Parade of the recovered
articles. If one considers the evidence of P.W. 24
Shri Nirmal Kumar, in the light of the evidence of
P.Ws. 15 and 26, namely, Aisan Kumar and Jesan Kumar,
one could very well find that there was clinching
evidence indicating that the articles were the
household articles of the deceased which were removed
by the accused persons after committing the murder of
the two deceased. Aisan Kumar and Jesan Kumar are the
38
sons of P.W. 14 Kamla Ram. The evidence of P.W. 14
Kamla Ram may indicate that his mother, the other
deceased Malti Devi, was working in the house of late
Papiya Ghosh for last 40 years and used to reside in
the same house. He has stated that after having
received information about the murder of his mother
and the land lady deceased Papiya Ghosh, he went
there and found that the floor of the rooms where the
dead bodies were found were splashed with blood. It
appears from the evidence of P.W. 14 that after having
committed the murders, the culprits had looted away or
taken away the properties from the house. He gave the
details of the properties in paragraph 3 of his
evidence. He further stated that when the articles
were recovered he went to identify them before a
Magistrate and did identify them. The evidence of
identification of articles comes in paragraphs 5 and 6
of his evidence. During his course of cross-
examination, P.W. 14 has stated that there were eight
other cars and he identified the car of the deceased.
He further stated that there was no number plate over
the car and this evidence gets support from the
evidence of P.W. 11 and also from the of P.W. 28,
the Investigating Officer and other witnesses on the
point.
48. As regards the competence of other
witness, like P.Ws. 15 and 26, the evidence of P.W. 14
39
could be relevant. He has stated that his son Jesan
Kumar( P.W. 26) was a student in the NIIT and he used
to live in the house of Papiya Ghosh. Prior to him,
Aisan Kumar( P.W. 15) was living in the house of
Papipa Ghosh. If one considers the evidence of P.Ws.
14, 15 and 26 one could come to a conclusion that the
three witnesses were fully acquainted with every nook
and corner of the house and each and every household
article available in the house. They appear not only
completely attached to the deceased Papiya Ghosh, but
also to her belongings which fact appears remarkably
coming out of the evidence when the two witnesses
Aisan Kumar and Jesan Kumar( P.Ws. 15 and 26) gave
specific reasons for identifying each and every
article by them. P.W. 15 has given identifying marks
by which he identified the T.V.( P.W. 15, paragraph
42), the computer monitor ( P.W. 15, paragraph 45) and
L.P.G. cylinder( P.W. 15, paragraph 49). The letter
‗p’ found by the witness written on the sound box
which was the first letter of the first name of
deceased Papiya Ghosh on some of her belongings was
one such special mark for identification. Similar is
the evidence of P.W. 26 who has given specific reasons
for identifying the articles by pointing out those
special marks of identification during his cross
examination from paragraph 7 onwards. Thus, I find
that the articles which were removed from the house of
40
Sushri Papiya Ghosh were duly recovered and duly
identified by the witnesses who were competent to
identify them.
49. It was contended by Shri Uday Kumar
Singh that no family member of Papiya Ghosh, specially
Ms Tutuk Ghosh came forward to give her evidence and
further came forward to identify the belongings of the
deceased which, as per the prosecution, were recovered
on pointing of the accused persons or from their
possession. This may be evidently clear that the
deceased late Papiya Ghosh was an unmarried lady(
P.W.14 Paragraph 15) and she had three sisters( P.W.
14, Paragraph 19) and they were all married and were
residing with their husbands. Ms Tutuk Ghosh was
Secretary to the Speaker of the Lok Sabha and it is
admitted that in the night of occurrence the deceased
and the maid servant were residing in the house. The
fact of the case does not indicate that any of the
sisters of Papiya Ghosh had come in the near future
even to see her. The deceased’s maid servant Malti,
her son P.W. 14 and her two grand sons were companions
of her or frequent visitors to the deceased Papiya
Ghosh. It may be appreciated only after going through
the evidence of P.W. 14 in paragraphs 29 and 30, as to
how close the family members of Malti had been to the
deceased Papiya Ghosh. As such, they could be
competent persons to identify each and every article
41
in the house and that appears the reason that they
have very meticulously given special signs for
identifying each and every article which were
recovered from different places by the police on
pointing of the accused persons. Even P.W. 14 Kamla
Ram has given very sound and good reasons for
identifying different articles as may appear from his
cross examination in paragraph 48 and onwards. Hence,
non-examination of Ms. Tutuk Ghosh or any other sistr
of Sushri Papiya Ghosh appears of no consequence.
50. From the narration which is based on the
evidence of the prosecution, it is quite clear that
the police had no clue for quite sometimes from
3.12.2006 up to 16.12.2006 when a call was made by the
cellular phone of the deceased by one of the accused
persons to P.W. 17 Ashok Kumar. He led the police to
appellants Mahohar Kumar and Ashishs Kumar Rai. The
recoveries were made there and the two appellants
having given information about the whereabouts of the
appellant Shankar Kanu alias Shankar Sao, he was
apprehended from the guard room of the Apartment and
he led the police to the recoveries from different
places even from the possession of absconding accused
persons, namely, Sanyog Rai and Md. Mustakim Mian. The
confessional statements of the accused persons appear
recorded by the police. The confessional statement of
appellant Manohar Kumar and Ashish Kumar Rai are Exts.
42
12 and 12/1,while that of Shankar Kanu alias Shankar
Sao has been marked Ext.12/2. The confessional
statement of appellant Anil Uraon is Exrt. 12/3. As
regards the recoveries from the room in occupation of
Manohar Kumar and Ashish Kumar Rai it was not made
consequent upon any information about the place of
concealment of the theft properties. It was simply by
virtue of a call made by one of the accused persons on
the cellular phone of P.W. 17 that the police was led
to the room in occupation of the two appellants and
recovered the theft properties. As such, those
recoveries are not covered by Section 27 of the
Evidence Act. Whereas the place of concealment of
Shankar Kanu alias Shankar Sao was consequently
discovered by the police on the information given to
it by appellants Manohar Kumar and Ashish Kumar Rai to
the police and thereafter appellant Shankar Kanu alias
Shanar Sao was arrested and on search was found in
possession of the cellular phone registered in the
name of the deceased.
51. I have already discussed the evidence
on the ownership of the cellular phone while
discussing the facts of the case which is mainly based
on the evidence on record that the Reliance India Ltd.
informed that it was registered in the name of the
deceased Papiya Ghosh. Shankar Kanu alias Shankar Sao
stated in his confessional statement about the place
43
of concealment of the properties which were removed
from the house of the deceased after commission of the
murder and, accordingly, the searches were made in his
own house, in the garage of one Harinandan Singh and
the house of Sanyog Rai and the garage of Md.
Mustakim Mian. Those places were found concealing one
or the other articles which were identified by P.Ws.
14,15 and 26 before P.W. 24 Shri Nirmal Kumar. Thus,
the recoveries from the house of Shankar Kanu alias
Shankar Sao and, thereafter, from the places, like,
garage of Harinandan Singh, the houses of Sanyog Rai
and Md. Mustakim were duly admissible as facts
discovered under Section 27 of the Evidence Act. It
is needless to point out that the term ―fact
discovered‖ includes the places of concealment of the
properties or objects. Accordingly, the whole
statement as regards the discovery of the fact of
concealment of different articles from a particular
place or places appears clearly admissible which were
consequent upon to the information received by the
police from Shankar Kanu alias Shankar Sao after he
had given the information on account of being
questioned during police custody.
52. So far the recoveries of articles from
the room in possession of appellant Manohar Kumar and
Ashishk Kumar Rai and Anil Uraon is concerned, it may
be true that Shankar Kanu alias Shankar Sao had merely
44
pointed out that two notes of 20 pounds each along
with a lady watch of Allwyn make which belonged to the
deceased and which was identified by P.Ws. 14, 15 and
26, were recovered from the pant pocket of appellant
Anil Uraon but there was no exact information about
the place from where those could be found. Hence, that
recovery, to me, appears not covered by Section 27 of
the Evidence Act. Likewise, the recoveries from the
room in which appellant Manohar Kumar and Ashish Kumar
Rai were found on search, were also not consequent
upon any information received from the appellants.
Hence, those recoveries may also not be admissible
under Section 27 of the Evidence Act.
53. Now, the question is as to how evidence
of recoveries as against appellants Manohar Kumar,
Ashish Kumar Rai and Anil Uron could be admissible and
may be sufficient for upholding their convictions. The
recoveries are admissible on account of the conduct of
the appellants of having participated and thereby
being found in possession of the theft properties.
Section 114(a) of the Evidence Act reads that if a
person is found in possession of any theft property
just after the theft has been committed, he is either
a thief or is a receiver of the stolen property. It
may be argued, though it has not been argued before
us, that the recoveries were made after about 13 days
of the occurrence from the possession of Manohar Kumar
45
and Ashish Kumar from a room as also from the
possession of Anil Uraon and as such the recoveries
are not ―just after‖ the removal of the properties
from the house of the deceased to their respective
possessions. It must be borne in mind that a stricter
application of the provision by construing the term
‖just after the offence has been committed‖, may lead
to disastrous results inasmuch as recoveries could be
relatable to the commission of the offence under the
special facts of a particular case.
54. Here the police was groping in dark
after the twin murders had been committed and the
whole of the properties of the household including a
vehicle had been removed by the culprits. The police
was not getting any opening. It was only sitting tight
and watching out for any error to which the culprits
may fall. Lastly, that plan occurred and a call from
the cellular phone was made and that led to the
complete cracking of the case. It may also be relevant
to point out that there was no defence taken that the
properties had been possessed by any of the appellants
bona fide on account of being handed over to them by
any other person. This at best could be said in
respect of appellant Shankar Kanu alias Shankar Sao,
Manohar Kumar and Ashish Kumar Rai. As soon as the
police got an information from the arrested appellants
Manohar Kumar and Ashish Kumar Rai the whole truth
46
came out in the form of informations, firstly, about
appellant Shankar Kanu alias Shankar Sao and,
thereafter, from him of other destinations and the
persons who could be found in possession of different
properties. Thus, to me, it appears a case where the
gap of 12-13 days in making recoveries appears of no
consequence. It could still be ‗just after’ the
incident on the special facts of the present case. As
such, in spite of there being no information leading
to the recovery of the articles from the room in
occupation of appellants Manohar Kumar and Ashish
Kumar Rai the respective recoveries established their
participation both as participants and retainers of
the stolen properties.
55. On the same reasons the recoveries of
the two notes of 20 pounds each and a lady watch
belonging to the deceased could bring the charges home
against Anil Uraon.
56. Thus, the contention that there was no
evidence on the theft of properties from the house of
Sushri Papiya Ghosh appears of no consequence inasmuch
as the evidence is sufficient. Many witnesses
including the police officers stated that the
properties were found removed from the house and those
were ultimately recovered from difference places as
already discussed. The evidence of the police officers
that they found the marks of keeping of the properties
47
at different places on account of dust having
deposited, is not an untrustworthy circumstantial
evidence. We put our household articles at many places
and when that very thing is removed after some months,
the mark of early presence of that thing is left
behind after its removal.
57. Shri Uday Kumar Singh, learned counsel
for the appellants Shankar Kanu alias Shankar Sao,
Manohar Kumar, Ashish Kumar Rai and Anil Uraon has
criticized the F.I.R. as a doubtful document. One must
not lose sight of the fact that P.Ws. 1 and 5 were the
first persons who entered the house. P.W. 1 is a
neighbour of the deceased and she appears quite
familiar with the deceased Papiya Ghosh and her family
members. She has given the description of all the
other three sisters of Papiya Ghosh in paragraphs 17
and 18 of her evidence and further the intellectual
activity of the deceased Papiya Ghosh in paragraph 19.
P.W. 5 Gita Devi was the maid servant. She was working
in the household and she could be also knowing about
the belongings of the deceased Pappiya Ghosh. It may
be true that the name of the person who could have
given full account of the missing properties might not
have been given in the F.I.R., but at the same time it
may be remembered that such details were not required
to be given and even if it was given, it was not
required to give the name of the person who had
48
furnished those details. The veracity of the document
appears genuine inasmuch as it was merely a document
which was drawn up for setting the investigation in
motion of a criminal case and if at all it had been
drawn up with a motive to falsely implicate someone,
the police or any one who could have been influenced
them, could have put any name with more specific
details in it.
58. The criticism of Shri Uday Kumar Singh
on Test Identification Parade that the witnesses had
been shown the articles appears meritless inasmuch as
the seizure was made on 16.12.2006 and the T.I. Parade
was held on 26.12.2006 in which P.Ws. 14, 15 and 26
were asked to participate and accordingly the articles
were identified. Even if they were shown the articles
which were lying in the house of accused Shankar Kanu
alias Shankar Sao each and every article was
identified by some special mark or some special
features appeared on each of them. while being cross
examined the three witnesses pointed out the special
marks and, thereafter, they were suggested that they
had not made any such statement before P.W. 24 while
identifying the articles.
59. The rule of T.I. Parade of the articles
is contained in Rule 236(b) of the Bihar Police Manual
which reads as follows:
49
―236(b) Identification of suspected articles.-
In this connection, the following instructions shall
be followed word by word:-
(1) For identification of one article
three or four articles of similar nature shall be
mixed up.
(2) No mark shall be put on a suspected
article. If it is essential to give a mark
similar marks shall be placed on unsuspected
articles.
(3) Care shall be taken to see that
witnesses have not seen the suspected articles
before the identification. Hence the witnesses
shall not go with that officer who carries the
articles before magistrate.
(4) Where any special mark has been
given on articles from before and their
descriptions have been noted in first information
report and in the statement of witnesses, the
investigator shall fully scrutinize it after the
article has been recovered and if from
descriptions given, those articles are
established, it shall not be necessary to get
identification done. Only at the time of trial,
the witnesses concerned shall identify these
articles before courts.
(5) For the sake of identification it
will be proper if articles, similar to suspected
articles are made available.‖
It may be found from the above provision of the Bihar
Police Manual that for identifying a suspected article
there is no necessity for any witness to say as to
what was the special mark by which he picked up the
articles as a property which was relatable to an
offence. As in the case of suspected human being who
bears any special marks of identification and who is
put on T.I. Parade, there is no requirement to blur
or conceal that special mark in a case of suspected
50
article, rather the provision under Sub-Rule(4) of
Rule 236(b) indicates that if the article bears any
special marks of identification, as could be stated
in the first information report or in the statement
of any witness during investigation, on recovery of
such articles the marks of identification have to be
tallied with the marks given by the witness or by the
informant in his information and on being satisfied
that the two tallied, there is no need of holding the
T.I. parade of articles. It may be pointed out that
while P.W. 26 was being cross examined the police
recovered certain packing materials from the place of
occurrence and also obtained electronically generated
receipts of different articles from different
retailers and those bore special marks of
identification which were also affixed on different
articles which were recovered and identified by the
witnesses. It appears that on account of ignorance of
the rules, the articles were put on T.I. Parade by the
police and they were duly identified by the witnesses
by pointing special marks of identification. Hence,
the T.I. Parade does not appear against the rules
rather it appears as per rules and, as such, the
suggestion to the witnesses by the defence that they
had not pointed out those special marks of
identification to P.W. 24 appears completely out of
the purview of Rule 236(b) of the Bihar Police Manual.
51
60. The other argument of Shri Uday Kumar
Singh was that the witnesses had been shown the
articles. It is true that in paragraph 73 P.W. 26
has stated that he had seen the articles at the
Police Station on the same day they were
recovered. But, he has corrected himself in the
next line that he had seen the articles one day
after the occurrence. This witness appears
confused if one considers his evidence in
paragraph 73, probably, on account of being
subjected to a very lengthy, gruelling and
searching cross examination. The evidence of the
witness in paragraph 73 appears not affecting the
merits of the proof of identification of articles
inasmuch as there is no suggestion to any of the
witnesses, be he a public witness or the police
witness, that the articles were not belonging to
the deceased which were not removed in the
occurrence. It is also not denied that the police
had seized those articles and those articles were
put on T.I.Parade and the three witnesses
participated. In such view of the evidence, and
in absence of any suggestion the argument appears
of no consequence.
61. One of the most important contentions
of Shri Uday Kumar Singh was that while P.W. 15
was amidst his cross examination the police went
52
to the place of occurrence house for searching it
with P.Ws. 15 and 26 on 8.5.2007 and showed the
recoveries of certain cartons and other packing
materials said to be recovered from different
accused persons which were allegedly taken away
by the accused after committing the twin murders.
It was contended that it was an unknown procedure
of investigation and the evidence which was led
through P.W. 14 on search and recovery of the
above packing material and other materials as
also of obtaining cash memo, etc. in respect of
purchases of different articles were fit to be
rejected.
62. While narrating the facts of the case,
it has been pointed out that there were
recoveries from the respective house and
establishment of accused Sanyog Rai and Md.
Mustakim Mian who could not be apprehended. The
Police submitted charge sheet by sending up the
present set of accused for trial keeping the
investigation pending. Thus, the investigation
was continuing and as such if the police was
again going to the house of the deceased for
collecting further evidence in the form of
obtaining the cash receipts showing purchases and
payment of price in respect of various articles
by the deceased Papiya Ghosh which were the
53
subject matters of the present offence, it does
not appear to me anything unusual under the
scheme of the Cr. P.C. Even if the investigation
had completely been closed by submitting the
report under Section 173 Cr. P.C. showing the
other accused persons absconding, there was no
hindrance in law by virtue of Section 173(8) Cr.
P.C. that the police could have further
investigated the case. There is no set stage
under law for reopening the case for further
investigating it. The police could reopen the
investigation to carry out further investigation
in a criminal case if it finds such fresh
evidence. It is its statutory duty to collect all
material evidence which may be required for doing
complete justice and further to place it before
the court for its consideration. The very
language of Section 173(8) is explicit. The
police was within its powers to collect
additional evidence by taking up further
investigation and to produce that fresh evidence
in court any, which could be necessary for the
proof of charges in a case even after the
investigation was shut out and the case was
amidst trial. As pointed out earlier, the
investigation was kept pending which means that
the investigation was very much continuing. If
54
the police went again to the place of occurrence
to collect further materials showing ownership of
the properties and in that connection it obtained
the receipts in token of purchases of those
properties and produced them in court, I do not
see anything unusual in it which could affect the
very merits of the evidence.
63. Thus, on reading the evidence and
considering the arguments in the light of the
evidence, I find that the very recovery of
articles either directly from the possession of
the accused persons or on account of the
information given by them to the police clearly
proved the charges that the two deceased persons
were killed in course of commission of the
dacoity and the properties were taken away. I
uphold the conviction recorded against accused
Shankar Kanu alias Shankar Sao, Manohar
Kumar,Ashish Kumar Rai and Anil Uraon.
64. As regards appellant Ram Chandra
Mahto, his conviction has been questioned mainly
on the ground that though he was charged under
Section 412 of the I.P.C., was ultimately
convicted under Section 414 of the Penal Code.
The contention was further that the two offences
being dissimilar the conviction of the appellant
was bad in law. Shri Kanhaiya Prasad Singh,
55
learned Senior counsel has placed reliance upon a
few decisions which I have noted down while
noticing his arguments in the present judgment. I
do not want to discuss the ratio of those
decisions. I want simply to note that it is true
that the offences under Section 412 and 414 of
the Penal Code are diametrically dissimilar as
regards the ingredients of the two offences, but
the truth of the matter is that there is
sufficient evidence of the seizure witnesses,
like P.Ws. 18 and 19 and that of P.W. 28 S.I.
Kumar Abhinav that the washing machine which was
identified by P.Ws. 14,15 and 26 was recovered
from a part of the house, that’s from under the
stair case, which was in possession of the
present appellant Ram Chandra Mahto. During his
statement under Section 313 Cr. P.C. in answer to
question no. 16, which is available to us at page
390 of the Paper Book, this appellant has
admitted that he was handed over the washing
machine by appellant Shankar Kanu alias Shankar
Sao. In fact, question No.16 put to appellant
Ram Chandra Mahto, was to the following effect
‖The evidence was that you in your bail petition
dated 1.2.2007 had stated that you had got
Manohar Kumar (appellant) and Sanyog Rai(
absconding accused) released on bail and that the
56
washing machine was given to you by appellant
Shankar Kanu alias Shankar Sao. What have you to
say?.‖ It is true that the answer is that the
above statement was made in his application for
bail without his instructions. But, I am not
inclined to accept this stand of the appellant
inasmuch he is an Advocate who was practicing in
the lower courts, Patna and no application could
be said to be filed without his instructions. The
replies of the appellant to various questions put
under Section 313 Cr. P.C. are against the
established facts but I am not going to take note
of that because the statement of an accused under
Section3 13 Cr. P.C. could never be used against
him. P.W.19 and the Investigating Police Officer
have testified that the recovery of the washing
machine was made from the house of appellant Ram
Chandra Mahto. It is true that no one had
participated in the T.I.parade but we must not
loose sight of the provision of Section 221 Cr.
P.C. which reads as under:-
― 221. Where it is doubtful what offence has
been committed.- (1) If a single act or series
of acts is of such a nature that it is doubtful
which of several offences the facts which can
be proved will constitute, the accused may be
charged with having committed all or any of
such offences and any number of such charges
may be tried at once; or he may be charged in
the alternative with having committed some one
of the said offences.
57
(2) If in such a case the accused is charged
with one offence, and it appears in evidence
that he committed a different offence for which
he might have been charged under the provisions
of sub-section(1), he may be convicted of the
offence which he is shown to have committed,
although he was not charged with it.‖
Besides the above, there is yet another provision
under Section 464 Cr. P.C. according to which no
finding, sentence or order by a court of competent
jurisdiction could be deemed invalid merely on the
ground that there was any error or omission in framing
of charges. The evidence is clear that the washing
machine was found in possession of the appellant Ram
Chandra Mahto. The evidence further is that it was
recovered from his possession. He is supposed to be
versed in law. He was further supposed to apply good
care and precaution before allowing anything to be
kept in his house. No property which could be a theft
property or about which there could not be any
certainty of being a thing to be allowed to be kept in
one’s possession, could be allowed by a reasonable
person to be kept in his house. Thus, I find that the
appellant Ram Chandra Mahto was voluntarily assisting
in concealment of the property on account of the fact
that he was not putting any question to the person who
had brought the machine to him as to what was the
source of the property as regards the same being
obtained. His act could be voluntary and it could be
further said that he knew that it was not a fair
58
property. The evidence shows that it was obtained in
theft and the appellant Ram Chandra Mahto allowed it
to be kept and, thus, he kept it at his house. The
only purpose could be to intentionally allow its
concealment by providing the proper place. May be,
that he was very much sure that on account of being an
Advocate no police Officer will be suspecting his
indulgence and as such the property could very well
be concealed.
65. Thus, I find that there is no error
committed by the learned trial Judge in convicting the
appellant Ram Chandra Mahto of the offence under Section
414 of the Penal Code in spite of there being no charge
under that section.
66. Having upheld the findings of the
trial court as regards the finding of guilt against the
appellants, I want to scrutinize the contention of
learned counsel for the appellants on sentence. It was
contended by Shri Uday Kumar Singh learned counsel of
appellants Shankar Kanu alias Shankar Sao, Manohar Kumar
Ashish Kumar Rai and Anil Uraon that they are young
persons and there is no record of conviction for
committing any offence. It was contended that the
sentence of death passed against appellant Shankar Kanu
alias shankar Sao appears excessive and should be
commuted to imprisonment for life. It was further
contended that appellant Shankar Kanu alias Shankar Sao
59
could be given an opportunity of reforming himself. As
regards appellant Ram Chandra Mahto it was contended by
Shri Kanhaiya Prasad Singh, learned Senior Advocate that
he is an Advocate practicing in civil courts, Patna and
it was an unintentional, ignorant act that the washing
machine could be allowed to be kept at his residence. It
was contended that his whole career is there and as such
he may be released on admonition.
67. I first want to take up the contention
on sentence passed against appellant Ram Chandra Mahto.
He is a person who is lettered in law. He practices
law in lower courts. He belongs to a profession which
has its own history of upholding values in society. His
profession and the professionals belonging to it, were
high class persons, like the father of Nation, the first
President and the first Prime Minister of our country.
All the leaders who fought for our freedom and
independence belonged to that profession. He appears a
person who fell in greed forgetting his professional
lineage and willfully concealed the theft property, the
washing machine in his residence. It was falling quite
short of the etiquette offence when it is considered in
context to the professional etiquettes of an Advocate.
Having considered sentence passed against him in the
above background, I find that the learned trial Judge
has taken unduly a lenient view on it. The difficulty
with this Court is that it had not issued notice of
60
enhancement, else, it was a fit case for inflicting
enhanced sentence to appellant Ram Chandra Mahto. I do
not have any reason for reducing the sentence or letting
him off on admonition.
68. The principle of sentencing envisages
that equal sentence should be passed against all the
accused who appear having participated in the same act
or in similar acts in commission of an offence. The
other aspect of sentencing is that the court inflicting
sentence should ensure, as far as could be possible for
it, that the sentence is neither excessive nor is
disproportionately inadequate. It is evidently clear
from the findings recorded by me while confirming the
finding recorded by the learned trial Judge, that
appellants Shankar Kanu alias Shankar Sao, Manohar
Kumar, Ashish Kumar Rai and Anil Uraon definitely
participated in the commission of murder of two
defenceless women who had retired to the comforts and
warmth of their respective beds in a cold December
night. The injuries which were found by the Doctor, P.W.
21 could be sufficient indicators of the above fact that
the murders were diabolically committed for no rhyme or
reason only with a view to eliminating any resistance of
any sort to it either by an act or by voice so that the
culprits removed the properties unhindered. Their
brutal act places the case amongst one of the rarest of
rare cases.
61
69. But, the difficulty with this Court
is that there is no evidence coming directly against
any of the appellants as to who had indeed committed
the twin murders. The manner of killing of the deceased
indicates as if they were stabbed and attacked while
they were fast asleep. This makes the act very
disturbing and barbarous. The manner and the mode of
liquidating the two innocent lives out of which one
was an intellectual and the other always in service of
such an intellectual, who was nursing the intellectual
as if she were the mother of Sushri Papiya Ghosh. This
brings the act in the class of the most brutal and
diabolic of murders. In absence of any direct evidence,
this Court finds it difficult to confirm the death
sentence passed against appellant Shankar Kanu alias
Shankar Sao and has no other option than to commute it,
though the Court feels that it is a case in which the
death-sentence could be the most appropriate sentence
to be inflicted upon the appellants. But, in absence of
the direct evidence on participation by all or any of
the appellants, namely, Shankar Kanu alias Shankar
Sao, Manohar Kumar,Ashish Kumar Rai and Anil Kumar
Uraon the Court feels that the life imprisonment which
means 20 years after insertion of Section 333A of the
Cr.P.C. is also not an adequate sentence. Faced with
the similar situation as we are faced in the present
case, the Supreme Court in the case of Swamy
62
Shraddananda(2) alias Murali Manohar Mishra Vs. State
of Karnataka reported in (2008) 13 S.C.C. 767 justified
taking a recourse which could be expanding the span of
sentence in such situations. I am tempted to quote
paragraph 92 of the said decision which is as under:-
― The matter may be looked at from
slightly different angle. The issue of sentencing has
two aspects. A sentence may be excessive and unduly
harsh or it may be highly disproportionately inadequate.
When an appellant comes to this Court carrying a death
sentence awarded by the trial court and confirmed by the
High Court, this Court may find, as in the present
appeal, that the case just falls short of the rarest of
the rare category and may feel somewhat reluctant in
endorsing the death sentence. But at the same time,
having regard to the nature of the crime, the Court may
strongly feel that a sentence of life imprisonment
subject to remission normally works out to a term of 14
years would be grossly disproportionate and inadequate.
What then should the Court do? If the Court’s option is
limited only to two punishments, one a sentence of
imprisonment, for all intents and purposes, of not more
than 14 years and the other death, the Court may feel
tempted and find itself nudged into endorsing the death
penalty. Such a course would indeed be disastrous. A far
more just, reasonable and proper course would be to
expand the options and to take over what, as a matter of
fact lawfully belongs to the Court, i.e., the vast
hiatus between 14 years’ imprisonment and death. It
needs to be emphasised that the Court would take
recourse to the expanded option primarily because in the
facts of the case, the sentence of 14 years’
imprisonment would amount to no punishment at all.‖
In the present case also, in my considered
view, the period of 20 years which means life
imprisonment as per the provision of Section 333A Cr.
P.C. appears inadequate because after grant of
remission, etc. which are without any legal basis as
was noticed by the Supreme Court in the above noted
case, it may come down to 14 years and that will be
simply a mockery as regards passing of sentence on the
63
convicts of twin murders of such magnitude. I,
therefore, direct that no remission shall be granted to
any of the four appellants, namely, Shankar Kanu alias
Shankar Sao, Manohar Kumar,Ashish Kumar Rai and Anil
Uraon and they shall serve out 20 complete years of
sentence individually.
70. The reference is negatived with the
above modification in sentence. The three appeals also
stand dismissed for the reasons indicated above.
( Dharnidhar Jha, J.)
C.M.Prasad, J.- I agree.
(C.M.Prsad,J.)
Patna High Court.
The 7th April, 2010
Kanth/A.F.R.