{"id":114221,"date":"2010-04-07T00:00:00","date_gmt":"2010-04-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-chandra-mahto-vs-state-of-bihar-on-7-april-2010"},"modified":"2015-05-06T09:32:31","modified_gmt":"2015-05-06T04:02:31","slug":"ram-chandra-mahto-vs-state-of-bihar-on-7-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-chandra-mahto-vs-state-of-bihar-on-7-april-2010","title":{"rendered":"Ram Chandra Mahto vs State Of Bihar on 7 April, 2010"},"content":{"rendered":"
Patna High Court<\/div>\n
Ram Chandra Mahto vs State Of Bihar on 7 April, 2010<\/div>\n
Author: C.M.Prasad<\/div>\n
                                                                       1\n\n\n\n\n                 DEATH REFERANC No.16 OF 2008\n                             - - - - -\n             Reference made under Section 366 of the Code of\n       Criminal Procedure by Additional Sessions Judge-cum-\n       Presiding Officer, Fast Track Court No.V,Patna, by his\n       letter No.427 of 2008 dated 20.9.2008 in connection\n       with S. T. Case No. 188 of 2007.\n                                - - - -\n       STATE OF BIHAR        ...         ...       State\n                             Versus\n       SHANKAR KANU @ SHANKAR SAO ...      Condemned prisoner\n                               With\n       CR. APP (DB) No.1224 of 2008\n            Against the judgment and order dated 18.9.2008\n       passed by the Additional Sessions Judge-cum-Presiding\n       Officer, Fast Track Court No.V, Patna in S.T. No.188\n       of 2007.\n                               - - - -\n       RAM CHANDRA MAHTO          ...         ...      Appellant\n                             Versus\n        THE STATE OF BIHAR ...       ....            ... Respondent<\/pre>\n
                               With<\/p>\n
       CR. APP (DB) No.1265 of 2008
\n       SHANKER KANU @ SHANKER SAO    …             …       Appellant
\n                             Versus
\n        THE STATE OF BIHAR     …              …            Respondent
\n                              With
\n       CR. APP (DB) No.1302 of 2008\n<\/p>\n
    1. ANIL URAON\n<\/p>\n
    2. Manohar Kumar\n<\/p>\n
    3. Ashish KLumar Rai …          …               Appellants
\n                              Versus
\n     THE STATE OF BIHAR   …       …               Respondent<\/p>\n
   For the Reference & the: Shri Ashwini Kumar Sinha,A.P.P.
\n   Respondent(in the three appeals)<\/p>\n
   For the appellants:    Shri Kanhaiya Prasad Singh,Sr. Adv.
\n   (in three appeals)     Shri Uday Kumar Singh,Adv.<\/p>\n
                           P R E S E N T<\/p>\n
               THE HON’BLE SHRI JUSTICE C.M.PRASAD
\n               THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA\n<\/p>\n
                            – – –\n<\/p>\n
\nDharnidhar Jha, J.-      The above noted Death Reference along<\/p>\n
       with   three   appeals   arise   out   of    the   Judgment   of
\n                                                                               2<\/span><\/p>\n
conviction dated 18th of September, 2008, passed by<\/p>\n
the   learned     Additional         Sessions     Judge-cum-Presiding<\/p>\n
Officer, Fast Track Court No.V, Patna, in Sessions<\/p>\n
Trial No.188 of 2007. They have been heard together<\/p>\n
and   are   being       disposed      of   by    the   present        common<\/p>\n
judgment.\n<\/p>\n
      While holding the appellants guilty of committing<\/p>\n
offences under Sections 396 and 412 of the Indian<\/p>\n
Penal    Code    by     the    above    order     of   conviction           the<\/p>\n
learned trial Judge heard the appellants on sentence<\/p>\n
on    19.9.2008        and    awarded      sentence       of     death      to<\/p>\n
appellant       Shankar       Kanu    alias     Shankar        Sao.         The<\/p>\n
sentence of rigorous imprisonment for life was awarded<\/p>\n
to appellants Anil Uraon, Manohar Kumar and Ashish<\/p>\n
Kumar    Rai     for    their    respective        convictions         under<\/p>\n
Section 396 of the Indian Penal Code. They were                          also<\/p>\n
directed    to    pay     fine   of     Rs.     5,000\/-    each       and    in<\/p>\n
default in paying the fine were directed to suffer<\/p>\n
further R.I. for six months each. The learned Judge<\/p>\n
did not pass any separate sentence under Section 412<\/p>\n
against any of the above noted appellants. As regards<\/p>\n
appellant Ram Chandra Mahto, he had been convicted for<\/p>\n
the charge under Section 414 of the Penal Code and he<\/p>\n
was     directed to suffer rigorous imprisonment for two<\/p>\n
years for committing that particular offence. Awarding<\/p>\n
sentence of death to Shankar Kanu alias Shankar Sao<\/p>\n
necessitated submission of the records of the trial
\n                                                                                 3<\/span><\/p>\n
court to this Court under Section 366 Cr.P.C. and, as<\/p>\n
such,     the      above        noted    death     reference.       Besides,<\/p>\n
appellant         Shankar        Kanu     alias        Shnakar    Sao        also<\/p>\n
preferred his appeal with other appellants.<\/p>\n
            2.      The facts of the case as per the                     F.I.R.<\/p>\n
and the evidence of witnesses are as follows:-<\/p>\n
                         The     deceased       Papiya     Ghosh       was     an<\/p>\n
academician, teaching History in one of the premier<\/p>\n
institutions        of     Patna,       the    capital    city    of     Bihar,<\/p>\n
namely, Patna Women’s College. She was a Bachelor, but<\/p>\n
was residing in a very big house. Her parents, it<\/p>\n
appears, had earned huge fortunes and different plots<\/p>\n
of land were acquired by them in the posh area of the<\/p>\n
city, known as Patliputra Colony. The house in which<\/p>\n
the    deceased         was     living    was    house     No.168      in     the<\/p>\n
Colony.      The        other    house        bearing    No.168A       of    the<\/p>\n
locality was situated just by the side of the house in<\/p>\n
which she was living. It appears from the evidence<\/p>\n
that    a        maid     servant,        namely,        Malti    Devi        was<\/p>\n
accompanying Papiya Ghosh since her very childhood who<\/p>\n
was    working      in    the     household       on    account     of      being<\/p>\n
employed by her parents and she was residing in a<\/p>\n
separate room in the same house. Pipiya Ghosh had<\/p>\n
authored many books and was living a comfortable life.<\/p>\n
Her household was fitted with many modern electronic<\/p>\n
gadgets.\n<\/p>\n
                                                                                 4<\/span><\/p>\n
          3.          It appears, things were normal in the<\/p>\n
night     intervening        2nd\/3rd     December,           2006    and    both<\/p>\n
Papiya Ghosh and her maid servant retired to their<\/p>\n
beds after meals. No one knew what happened in the<\/p>\n
dead of night. There was no movement of a soul till<\/p>\n
the morning of 3.12.2006 when another maid servant,<\/p>\n
namely, Geeta Devi,P.W.5) came there to perform her<\/p>\n
course around 7-7.15 A.M. She came shouting to P.W. 1<\/p>\n
Neeta    Aditya       to   tell    her     that    in    spite       of    having<\/p>\n
pushed    the    call      bell,     there    was       no    response      from<\/p>\n
inside.\n<\/p>\n
          4.      P.W.1 Neeta Aditya could say that she and<\/p>\n
others of her family thought that Papiya Ghosh had<\/p>\n
taken ill and, as such, she accompanied Geeta devi(<\/p>\n
P.W.5) to the house of Papiya Ghosh and pressed the<\/p>\n
call bell but no one came to open the door. She found<\/p>\n
that the gate of the compound had no lock and, as<\/p>\n
such, she entered into the verandah of the house from<\/p>\n
that gate and pressed the call bell again. Getting no<\/p>\n
response       from    inside,       she     pulled      the        door   which<\/p>\n
opened.    Calling         the     deceased       by    her     name,      P.W.1<\/p>\n
entered     inside         along    with     P.w.5       and     found      that<\/p>\n
articles in the first room were all scattered and the<\/p>\n
T.V. which used to be there was missing. The Almirah<\/p>\n
of the other room was open and most of the articles<\/p>\n
were lying on the ground. P.Ws. 1 and 5 entered the<\/p>\n
3rd room which was the bed room of Papiya Ghosh and
\n                                                                      5<\/span><\/p>\n
found that her dead body was wrapped into a quilt and<\/p>\n
it had partially slipped towards the ground. There was<\/p>\n
blood on the quilt and one of her legs was outside it.<\/p>\n
She was dead.         On touching the feet of Papiya Ghosh<\/p>\n
she felt it cold and when she turned out the quilt,<\/p>\n
she found that her omentum had come out.<\/p>\n
          5.     Both P.Ws. 1 and 5 came out shouting             and<\/p>\n
frightened. People started dropping in. When some of<\/p>\n
them had reached, they entered inside the other rooms<\/p>\n
and it was found that in another room, which was under<\/p>\n
occupation of the maid servant, she had also been<\/p>\n
killed by piercing another weapon into her belly. All<\/p>\n
the articles of the household were scattered or found<\/p>\n
missing. The computer, music system, T.V. and most of<\/p>\n
the household articles, it appeared, had been looted<\/p>\n
away.\n<\/p>\n
          6.     As may appear from the evidence of P.W.1<\/p>\n
and     other    witnesses,        the    police     was    informed<\/p>\n
telephonically. It reached there and Circle Inspector<\/p>\n
Nagendra Kumar Singh (P.W. 23) came there along with<\/p>\n
his patrolling party. He inspected             the inner parts of<\/p>\n
the   house     and   he   found   that   in   one   of    the   rooms<\/p>\n
situated on ground floor towards south west of the<\/p>\n
house, the dead body of Papiya Ghosh was lying which<\/p>\n
was covered with a quilt. The quilt was soaked with<\/p>\n
blood and the face was uncovered. There was a deep cut<\/p>\n
injury on the belly. The deceased had bled and there
\n                                                                             6<\/span><\/p>\n
were cut wounds also on her neck, cheeks, left eye and<\/p>\n
right forehead.          The deceased had bled from her ears<\/p>\n
too.    There was another wound also.\n<\/p>\n
            7.      There     was      another      room     which        was<\/p>\n
connected by a door with the room situated west of the<\/p>\n
above noted room of Papiya Ghosh and the maid servant<\/p>\n
of Papiya Ghosh, aged 60–65 years, was found lying<\/p>\n
dead by her belly. P.W. 23 found a deep cut mark on<\/p>\n
the belly of Malti and whole of the floor of the room<\/p>\n
splashed with copious blood. Almirah, attach\u00e9 cases<\/p>\n
and boxes were found open and the articles scattered<\/p>\n
all over. The computer, its printer, monitor, C.D.<\/p>\n
player, cordless phone, Sony colour T.V. of                              21\u2016,<\/p>\n
washing machine,         ornaments, cash and a Maruti 800 car<\/p>\n
bearing      registration        no.    BR    IV    5129     were       found<\/p>\n
missing.         The   mobile       phone    of     Papiya       with     Sim<\/p>\n
No.9334110212, was also found missing. P.W. 23 gave<\/p>\n
the above details which he could get at the spot,<\/p>\n
probably from persons assembled and noted that the<\/p>\n
full details of other articles could be provided by<\/p>\n
the family members of Sushri Papiya Ghosh.<\/p>\n
            8.         P.W.     23,    Circle      Inspector      Nagendra<\/p>\n
Kumar       Singh      who    was      the    Officer-in-charge            of<\/p>\n
Patliputra Police Station, drew up his own statement<\/p>\n
in the form of Ext.7 and entrusted the investigation<\/p>\n
to   S.I.    Kumar     Abhinav      (P.W.    28).   On     the   basis     of<\/p>\n
Ext.7, Ext.8 the F.I.R. of the case was drawn up at
\n                                                                             7<\/span><\/p>\n
9.15 A.M. on 3.12.2006 and P.W.28 S.I.                     Kumar Abhinav<\/p>\n
took up the investigation.\n<\/p>\n
          9.     While    investigating            the   case,      P.W.   28<\/p>\n
recorded the statement of the informant, inspected the<\/p>\n
place of occurrence, i.e., the house No.168 of late<\/p>\n
Papiya Ghosh which had on its south west the other<\/p>\n
house of the family bearing no. 168A. He inspected the<\/p>\n
place-    of-    occurrence-rooms            and    noted      down     their<\/p>\n
descriptions      in    the    case    diary.       He   found      a   blood<\/p>\n
stained knife on the bed over which late Ghosh was<\/p>\n
lying and the whole of the drawing room was found in a<\/p>\n
disorderly      condition.       It    was   not    that      things     were<\/p>\n
scattered in the room and other places of the ground<\/p>\n
floor, rather, things were also found in disorganized<\/p>\n
and disorderly fashion on the upper floor also. The<\/p>\n
grill gate which was fixed in the boundary wall of the<\/p>\n
house was also found unlocked though barbed wire had<\/p>\n
been fixed at the top of the boundary wall from all<\/p>\n
around. The suit cases, boxes, etc. kept on the floor<\/p>\n
were also found in a disarray. P.W. 28 found that<\/p>\n
there    were    marks    left        on    account      of    removal     of<\/p>\n
different      articles       from    the    household        and     further<\/p>\n
found that there was tyre mark left on account of<\/p>\n
movement of the vehicle and that the articles kept in<\/p>\n
the Almirah were all scattered.\n<\/p>\n
          10.          The inquest reports, Exts. 3 and 3\/1,<\/p>\n
were    prepared   by     S.I.       K.P.Singh      by   the    orders     of
\n                                                                          8<\/span><\/p>\n
Circle Inspector Nagendra Kumar Singh. The statements<\/p>\n
of witnesses present at the place of occurrence were<\/p>\n
recorded.         The    photograph     of    the     scene     of     the<\/p>\n
occurrence was also taken by hiring the services of<\/p>\n
the photographer.\n<\/p>\n
            11.           The kitchen- knife which was found on<\/p>\n
the   bed    of    Papiya      Ghosh   was   seized    by     P.W.28   by<\/p>\n
preparing seizure report, Ext. 11, in presence of two<\/p>\n
witnesses Aisan Kumar (P.W. 15) and Jesan Kumar( P.W.<\/p>\n
26) who were the grand sons of deceased Malti Devi.<\/p>\n
Some of the blood soaked clothes, like, the mattress,<\/p>\n
quilt, sleeping gown and underwear were also seized by<\/p>\n
preparing seizure memo Ext.11.\n<\/p>\n
            12.          It came into light during course of<\/p>\n
investigation that Papiya Ghosh had a cellular phone<\/p>\n
with Sim No. 9334110212 and that had also been taken<\/p>\n
away by the criminals and, as such, a request was made<\/p>\n
to the service provider M\/S Reliance India Ltd. for<\/p>\n
supplying the call details of the said cellular phone<\/p>\n
along with time of its activation and the location of<\/p>\n
tower details.\n<\/p>\n
            13.          It appears that considering the nature<\/p>\n
of the offence and its impact on social order, Senior<\/p>\n
Superintendent            of    Police,      Patna,         formed     an<\/p>\n
investigating           team   consisting    of     Circle    Inspector<\/p>\n
Nagendra Kumar Singh (P.W.23) S.I.                    Abhaay Narayan<\/p>\n
Singh( P.W.25), the officer-in-charge of Gardanibagh
\n                                                                                       9<\/span><\/p>\n
Police Station and S.I. K.K.Singh( P.W. 27), the then<\/p>\n
officer-in-charge                of    Budha        Colony      Police       Station,<\/p>\n
S.I. Ajay Kumar, the then officer-in-charge of Kotwali<\/p>\n
Police       Station,         who      were        to   assist        P.W.    28    in<\/p>\n
investigation.\n<\/p>\n
             14.             Six steel knives were recovered from<\/p>\n
the room where Papiya Ghosh was murdered along with<\/p>\n
other articles which had blood stains over them the<\/p>\n
seizure of the knives was witnessed by the above noted<\/p>\n
witnesses, P.W. 15 and P.W. 26.\n<\/p>\n
             15.        As   may      appear        from      the     evidence      of<\/p>\n
P.W.28, S.I. Kumar Abhinav and P.W. 25 S.I. Abhay<\/p>\n
Narayan       Singh       who    were        also       the    members       of    the<\/p>\n
investigating team formed by the Senior Superintendent<\/p>\n
of Police, Patna, that the Manager of Reliance India<\/p>\n
Ltd. informed P.W. 28 S.I. Kumar Abhinav that a call<\/p>\n
had been made at 12.30 P.M. from the cellular phone of<\/p>\n
the    deceased          which        had        been   taken        away    by    the<\/p>\n
criminals on to another cellular phone bearing Sim No.<\/p>\n
9334134807 and that the tower location of the call was<\/p>\n
in    between      the       clinic         of    Dr.Hai       and    Kurji.       This<\/p>\n
information was passed on by P.W. 28 to the higher<\/p>\n
police Officers. P.W.25 was directed to investigate<\/p>\n
into the details of the call as to who had made the<\/p>\n
call     from       the       cellular            phone       bearing       Sim     No.<\/p>\n
9334110212         to    another        phone       bearing      no.9334134807.<\/p>\n
P.W.    25    investigated             into       it    and     found       that   the
\n                                                                    10<\/span><\/p>\n
cellular phone which received the call was registered<\/p>\n
in the name of one Ashok Kumar( p.W. 17). P.W. 28<\/p>\n
questioned Ashok Kumar by calling him to his Police<\/p>\n
Station and he admitted that indeed he had received a<\/p>\n
call from the cellular phone of the deceased and was<\/p>\n
asked by the caller as to where he was and further<\/p>\n
that he should switch off his cellular phone( P.W. 25,<\/p>\n
paragraph    1).    This     information     was   given    to    the<\/p>\n
investigating Police Station Patliputra. P.W. 25 got<\/p>\n
further     direction      and     accordingly      he     came    to<\/p>\n
Patliputra Police Station and Ashok Kumar( P.W. 17)<\/p>\n
was questioned by all the Police Officers including<\/p>\n
the Investigating Officer( P.W. 28). He stated that he<\/p>\n
could take them to the person who had given the call<\/p>\n
to P.W. 17 from the area described by him as Kurji<\/p>\n
Balupar.     Accordingly,      a   team    of    Police     Officers<\/p>\n
consisting    of   Circle     Inspector-cum-Officer-in-charge<\/p>\n
of   Patliputra     Police     Station,    K.N.    Singh,     Circle<\/p>\n
Inspector-cum- officer-in-charge of                Kotwali Police<\/p>\n
Station,      Ajay Kumar, Circle Inspector-cum- Officer-<\/p>\n
in-charge    of    Patliputra       Police      Station,     Circle<\/p>\n
Inspector Nagendra Kumar Singh and              the Investigating<\/p>\n
Officer of the      case, (P.W. 28)        set out with P.W. 17<\/p>\n
at about 7 P.M. and reached a place described as house<\/p>\n
of one Jalandhar Rai situated in Kurji locality. P.W.<\/p>\n
17 pointed to them a particular room and when it was<\/p>\n
got opened two persons,            that’s,appellants        Manohar
\n                                                                        11<\/span><\/p>\n
Kumar and       Ashish Kumar Rai were found sleeping there.<\/p>\n
On search of that particular house Sony                     Colour T.V.<\/p>\n
of 21\u2016, music system of Phillips, a L.P.G. cylinder, a<\/p>\n
pearl     neckless         and       many   other     articles       were<\/p>\n
recovered as per details contained in seizure memo<\/p>\n
Ext. 11\/12 available at pages 525 to 527 of the Paper<\/p>\n
Book. The seizure memo was prepared in respect of the<\/p>\n
seized articles in presence of two witnesses and a<\/p>\n
copy of seizure memo Exts. 11\/12 was also given to<\/p>\n
both    the    appellants        Ashish   Kumar    Rai   and    Manohar<\/p>\n
Kumar.\n<\/p>\n
          16.        The   two    appellants      Manohar    Kumar   and<\/p>\n
Ashish Kumar Rai were            questioned by the police after<\/p>\n
being arrested at the very place and they confessed to<\/p>\n
their guilt of committing the offence along with other<\/p>\n
accused persons, namely, Shankar Kanu alias Shankar<\/p>\n
Sao, Sanyog Rai, Ashish Kumar Rai and Md. Mustakim in<\/p>\n
the night intervening              between 2nd\/3rd of December,<\/p>\n
2006 and pointed out that those were the articles<\/p>\n
which     belonged to the deceased          Papiya Ghosh and         had<\/p>\n
been removed by them after committing                 their murders.<\/p>\n
On further questioning the two above named appellants<\/p>\n
Manohar Kumar and Ashish Kumar Rai pointed out the<\/p>\n
whereabouts of Shankar Kanu alias Shankar Sao.<\/p>\n
          17.        The police, accordingly, came to Chauhan<\/p>\n
Apartment situated in            New Patliputra Colony and found<\/p>\n
Shankar       Kanu   alias   Shankar        Sao    sleeping     in    the
\n                                                                    12<\/span><\/p>\n
servant   room.    Shankar       Kanu   alias    Shankar   Sao   was<\/p>\n
arrested and searched and the cellular phone of the<\/p>\n
deceased Papiya Ghosh bearing Sim No.9334110212 was<\/p>\n
recovered from him. Shankar Kanu alias Shanker Sao was<\/p>\n
questioned there and he confessed to his guilt and<\/p>\n
pointed out that the articles which were looted from<\/p>\n
the house of Papiya Ghosh after committing her murder<\/p>\n
were, in some part, lying at his house and some were<\/p>\n
in possession of his companions and that he could get<\/p>\n
them   recovered        after     going     to    those    places.<\/p>\n
Accordingly,    the     Police    brought   Shankar    Kanu   alias<\/p>\n
Shankar Sao, firstly, to his house situated in the<\/p>\n
same locality Kurji, Balupur, and searched the room<\/p>\n
belonging to him. On opening a box, the police found<\/p>\n
the owner book in respect of the vehicle of Maruti Car<\/p>\n
of Papiya Ghosh as also the photo copy of the driving<\/p>\n
licence which had the photograph of Papiya Ghosh over<\/p>\n
it. Some bank cheques, already bearing signature of<\/p>\n
Papiya Ghosh, were also found there. Those articles<\/p>\n
were seized after preparing the seizure memo along<\/p>\n
with other articles, as may appear from the evidence<\/p>\n
of P.W. 28 in paragraph 38, which corresponds to the<\/p>\n
seizure memo Ext. 11\/4, available to us at pages 530<\/p>\n
and 531 of the Paper Book. A copy of the seizure memo<\/p>\n
was made over to appellant Shankar Sao also.<\/p>\n
          18.     The   three    apprehended     appellants      were<\/p>\n
brought thereafter, with seizure witnesses on account
\n                                                                            13<\/span><\/p>\n
of being led by appellant Shankar Kanu alias Shankar<\/p>\n
Sao to the garage of one Harinandan Singh which was a<\/p>\n
tin roofed structure, situated by the road side and<\/p>\n
the same was searched by the police officers.                             The<\/p>\n
Maruti Car 800 having no number plates either in front<\/p>\n
or back of it and which had chassis no.SB-308-IN- and<\/p>\n
178912 and Engine No.F.8 PIN 2483877 was found kept<\/p>\n
there. Inside the vehicle was found a lock upon which<\/p>\n
a particular number was engraved. Other articles as<\/p>\n
per details available to us in paragraph 38 of the<\/p>\n
evidence of P.W. 28 (which correspond to the seizure<\/p>\n
memo Ext. 11\/5.) were also found. On the back of the<\/p>\n
seat of the vehicle some clothes were found bundled up<\/p>\n
in     a    piece    of   cloth       and    those    were     saries     and<\/p>\n
different           wearing     apparels         of      the     deceased.<\/p>\n
Accordingly, those were also seized as per the above<\/p>\n
seizure memo.\n<\/p>\n
             19.      The three accused who were in custody,<\/p>\n
namely, appellant             Shankar        Kanu alias shankar Sao,<\/p>\n
Manohar Kumar and Ashish Kumar Rai promised the police<\/p>\n
to lead them to accused Sanyog Rai, Md. Mustakim and<\/p>\n
Anil       Uraon    who   had   also    some     parts    of     the    theft<\/p>\n
properties           in       their         respective         possessions.<\/p>\n
Accordingly, the raiding party along with the accused<\/p>\n
persons      in     custody,    came    to     the    house     of   accused<\/p>\n
Sanyog Rai. Sanyog Rai was not found inside the house,<\/p>\n
but the house as per description in paragraph 43 of
\n                                                                            14<\/span><\/p>\n
the evidence of P.W. 28 was searched. From inside a<\/p>\n
room situated in the southern part of the house, a<\/p>\n
Flatron   computer       monitor      of    L.G.    make,    Key    board,<\/p>\n
Microsoft CPU, of L.G,               two speakers, a printer of<\/p>\n
H.P., the cheque book in respect of S\/B Accounts No.<\/p>\n
106160 containing cheque numbers S\/B 198571 to 198580<\/p>\n
of which those bearing from serials no. 198571 to<\/p>\n
198574 had been utilized and which                   account was held<\/p>\n
by the deceased in Allahabad Bank as also the Pass<\/p>\n
Book of S\/B accounts of Punjab National Bank,bearing<\/p>\n
S.B.Account No.177440 were recovered. The seizure list<\/p>\n
was prepared in respect of the recoveries made from<\/p>\n
the house of accused Sanyog Rai, a copy of which was<\/p>\n
handed over to his father Nagina Rai. This seizure<\/p>\n
memo is Ext. 11\/6 which is available to us at page 534<\/p>\n
of the Paper Book.\n<\/p>\n
          20.    The police party with three accused in<\/p>\n
custody started from the house of Ram Sanyog Rai to<\/p>\n
the   house     of     appellant      Anil     Uron,     who       as     per<\/p>\n
information given by the arrested accused, was also in<\/p>\n
possession      of    certain    properties         belonging      to     the<\/p>\n
deceased. While proceeding towards the house of Anil<\/p>\n
Uraon, the police found a person moving on the road<\/p>\n
and   that    particular       man    was    pointed    by   the        three<\/p>\n
accused as appellant Anil Uraon. He was stopped and<\/p>\n
questioned      and   gave     his    name    as      Anil   Uraon        and<\/p>\n
readily      confessed    to    his    guilt       finding   the        three
\n                                                                     15<\/span><\/p>\n
other accused in custody. He was searched. His                   cloth<\/p>\n
had some blood mark on it and from the pocket of his<\/p>\n
pant Pound-currency- notes two in number, each of 20<\/p>\n
denomination         were recovered which had been issued by<\/p>\n
the     Bank    of    England   and    which    bore    numbers    as<\/p>\n
indicated in paragraph 44 of the evidence of P.W. 28.<\/p>\n
The other recovery was of an Allwyn lady watch of<\/p>\n
golden colour fitted with leather belt, an ornament,<\/p>\n
which    articles      were   also    seized   vide    seizure    memo<\/p>\n
ext.11\/7, a copy of which was handed over to appellant<\/p>\n
Anil Uraon.\n<\/p>\n
          21.        On questioning Anil Uraon, it came into<\/p>\n
light that the front and rear plate numbers of the car<\/p>\n
of the deceased had been handed over to one M\/s Munna<\/p>\n
Arts     for     repainting      by     the    accused     persons.<\/p>\n
Accordingly, all the accused persons in custody were<\/p>\n
taken by the police to the saidM\/s Munna Arts and<\/p>\n
during search the two number plates were found there<\/p>\n
which had new numbers written over them as BR-IR-1881<\/p>\n
which inscription was fresh and new.\n<\/p>\n
          22.        The owner of the said Munna Arts was<\/p>\n
questioned by the police and he has been examined as<\/p>\n
P.W. 11 in the case, who admitted that his profession<\/p>\n
was creating number plates of different vehicles. He<\/p>\n
stated that the three appellants brought by the police<\/p>\n
to his house on 16.12.2006 had handed over to him the<\/p>\n
two number plates for repainting on 11.12.2006. This
\n                                                                          16<\/span><\/p>\n
witness P.W. 11 had identified the two accused as<\/p>\n
Shankar Kanu alias Shankar Sao and Anil Uraon in court<\/p>\n
during his evidence as may appear from his evidence in<\/p>\n
paragraph 11. P.W. 2 further stated that the number<\/p>\n
which was previously written on the two number plates<\/p>\n
and which had been defaced by rubbing could be read by<\/p>\n
him and that number was BR-IV- 5129. He had been told<\/p>\n
by     the        accused    to     write        No.BR-1R-1881         and,<\/p>\n
accordingly, he had created the new number over the<\/p>\n
old number plates which had been seized by the police<\/p>\n
from his shop. The seizure memo in respect of two<\/p>\n
number   plates       has    been   marked       Ext.   11\/8.    The    two<\/p>\n
number plates have also been marked material exhibits<\/p>\n
as may appear from Paragraph 4 of the evidence of P.W.<\/p>\n
11. It may appear further from the evidence of P.W. 11<\/p>\n
that   he    had     noted   down    the    number      desired    to   be<\/p>\n
painted by the accused persons on the reverse side of<\/p>\n
the two plates for memory purpose, so that the number<\/p>\n
was    correctly       written      on     the    plates(       P.W.    11,<\/p>\n
paragraph 8).\n<\/p>\n
            23.       After having recovered the two number<\/p>\n
plates recreated on the number plates of the vehicle<\/p>\n
of the deceased, as indicated above, the raiding party<\/p>\n
moved further from that place to come to the tyre<\/p>\n
puncture repairing and air filling shop of accused Md.<\/p>\n
Mustakim Mian which was situated at Makhdumpur Digha,<\/p>\n
and which was found closed by putting a lock on a
\n                                                                       17<\/span><\/p>\n
Chachari   gate(manufactured         from   Bamboo)      on   it.      A<\/p>\n
Micro Oven made by Nikai, Japan, was found concealed<\/p>\n
amidst the old tyres in the south-eastern corner of<\/p>\n
the shop. It was further found that the micro oven was<\/p>\n
bundled into an old window curtain. The police party<\/p>\n
found a Tata phone of white colour, another phone set<\/p>\n
of Beetel make, a cordless phone set of Sony carrying<\/p>\n
some descriptions over it along with a charger and an<\/p>\n
umbrella       of blue colour over which Mist Harbour was<\/p>\n
written and an automatic umbrella of blue and white<\/p>\n
colouer,   brass    plates     and    other   utensils        used   in<\/p>\n
worship, rituals brass candle stand were also seized<\/p>\n
by preparing the seizure memo Ext. 11\/3. The police<\/p>\n
returned back along with the seized articles and the<\/p>\n
arrested accused persons. Md. Mustakim was also not<\/p>\n
found and could not be arrested till date of judgment.<\/p>\n
         24.     During       questioning     of      the     accused<\/p>\n
persons on 16.12.2006 at 5.30 P.M. it was learnt by<\/p>\n
the police that the washing machine which was removed<\/p>\n
from the house of the deceased was given to appellant<\/p>\n
Ram   Chandra    Mahto,   a    practicing     Advocate        who    was<\/p>\n
residing in Ashiyana Nagar under Shastrinagar Police<\/p>\n
Station,   Patna,     and,      accordingly,       the      house     of<\/p>\n
appellant Ram Chandra Mahto was searched. It was a<\/p>\n
pucca house of appellant Ram Chandra Mahto and the<\/p>\n
police found there a fully automatic washing machine<\/p>\n
with black paint on its rear side. This machine was
\n                                                                              18<\/span><\/p>\n
seized and seizure memo Ext. 11\/10 was prepared. The<\/p>\n
washing machine was produced during course of hearing<\/p>\n
of the case and it was marked material Ext. 2\/35 by<\/p>\n
the learned Judge. A copy of the seizure memo Ext.<\/p>\n
11\/10 was handed over to appellant Ram Chandra Mahto.<\/p>\n
          25.         During       the       course     of    investigation<\/p>\n
P.W. 28 entered into correspondences with the District<\/p>\n
Transport Officer, Patna, and the Manager, Reliance<\/p>\n
India Ltd. for ascertaining the ownership respectively<\/p>\n
of the seized vehicle as also the registration of the<\/p>\n
Sim Card No. 9334110212 issued by M\/s Reliance India<\/p>\n
Ltd. P.W. 28 was informed by the District Transport<\/p>\n
Officer, Patna that the seized car which bore the<\/p>\n
chassis    and       vehicle     number        as    indicated      in    some<\/p>\n
earlier part of the present judgment                         was registered<\/p>\n
in the name of the deceased Papiya Ghosh, daughter of<\/p>\n
Sri    U.K.Ghosh,      resident         of    168     Patliputra        Colony,<\/p>\n
Patna, and that the engine and chassis number tallied<\/p>\n
with    those    which      were      appearing        on    the   recovered<\/p>\n
vehicle and which were noted down by the police during<\/p>\n
the course of its seizure. Likewise, the Manager of<\/p>\n
Reliance India Ltd. also furnished the details of the<\/p>\n
cellular phone. It was found that it bore no. RS No.<\/p>\n
RLGHS     1000309516,          M.D.      No.        6123110212      and     was<\/p>\n
registered      in    the   name      of      Papiya    Ghosh      of    Indian<\/p>\n
nationality,         resident      of        168,    Patliputra         Colony,<\/p>\n
Patna, which tallied with the full details of RS No.
\n                                                                           19<\/span><\/p>\n
of the phone which was recovered from the possession<\/p>\n
of appellant Shankar Kanu alias Shankar Sao. Not only<\/p>\n
that,     P.W.28      represented     to       the    Chief       Judicial<\/p>\n
Magistrate, Patna of deputation of any Magistrate for<\/p>\n
overseeing the T.I.Parade of the seized articles and<\/p>\n
accordingly Shri Nirmal Kumar( P.W. 24), who was the<\/p>\n
Block     Development-cum-Circle            Officer,        Patna,       was<\/p>\n
ordered to be deputed for the purpose. Accordingly,<\/p>\n
the T.I. Parade of articles was held on 26..12.2006 by<\/p>\n
calling    P.W.14      Kamla    Ram   who      was   the    son    of   the<\/p>\n
deceased Malti Devi and his two sons P.W. 15                           Aisan<\/p>\n
Kumar and P.W. 26 Jesan Kumar and, accordingly, the<\/p>\n
articles were identified by them in the T.I. Parade<\/p>\n
organized for identification of the seized properties.<\/p>\n
The T.I. Charts have been marked ext. 9 series and the<\/p>\n
objects    have      also   been   marked      as    various      material<\/p>\n
exts. The blood stained articles were also sent to the<\/p>\n
Forensic       Science      Laboratory,          Patna,     and        after<\/p>\n
completion of the investigation, the appellants were<\/p>\n
sent up for trial keeping the investigation pending<\/p>\n
against the absconding accused Md. Mustakim and Sanyog<\/p>\n
Rai.    This    is    how   the    appellants        were     tried      and<\/p>\n
convicted as indicated at the very out set of the<\/p>\n
present judgment.\n<\/p>\n
          26.          In      support      of       the    prosecution<\/p>\n
charges, as many as 30 witnesses were examined. None<\/p>\n
of     these    witnesses       are      eye     witnesses        to     the
\n                                                                    20<\/span><\/p>\n
occurrence. In fact, no one had seen the occurrence<\/p>\n
being committed in his presence. The witnesses have<\/p>\n
been examined on one fact or the other or, in other<\/p>\n
words, on one circumstance or the other. The core<\/p>\n
evidence against the appellants, as may appear from<\/p>\n
the above narration, was the very information of the<\/p>\n
accused persons while in police custody which led to<\/p>\n
recoveries of different articles from different places<\/p>\n
and identification of those articles by P.Ws. 14,15<\/p>\n
and   26    as    belonging    to    the   deceased.   The      legal<\/p>\n
inference of culpability and knowledge as also the<\/p>\n
inference of participation of the appellants in the<\/p>\n
commission       of   the   twin    murders   or   theft   of    the<\/p>\n
properties is based only on the above available on<\/p>\n
record.\n<\/p>\n
           27.        The defence of the appellants was of<\/p>\n
innocence and also of being falsely implicated under<\/p>\n
some influence, as suggested by the appellants, so as<\/p>\n
to giving a clean chit, to P.Ws. 15 and 26 the two<\/p>\n
brothers Aisan Kumar and Jesan Kumar, who are the two<\/p>\n
grand sons of the other deceased Malti Devi. The other<\/p>\n
defence of the appellants, which was agitated before<\/p>\n
us was that some records were created in support of<\/p>\n
the prosecution even during the course of examination<\/p>\n
of the witnesses so as to lending credence to the<\/p>\n
evidence not only of recovery of different articles,<\/p>\n
but also of their ownership.\n<\/p>\n
                                                                               21<\/span><\/p>\n
          28.           We    have       heard       Shri   Kanhaiya     Prasad<\/p>\n
Singh, learned Senior Advocate appearing for appellant<\/p>\n
Ram Chandra Mahto and also Shri Uday Kumar Singh,<\/p>\n
learned counsel appearing on behalf of the remaining<\/p>\n
appellants.\n<\/p>\n
          29.       Shri          Uday     Kumar       Singh      was    highly\n\ncritical       of   the       prosecution            approach     in    leading\n\n<\/pre>\n
evidence and was submitting before us that there being<\/p>\n
no eye witness to the occurrence or no evidence, in<\/p>\n
fact, connecting directly                  any of the appellants            with<\/p>\n
the crime. The police has simply created unacceptable<\/p>\n
materials so as to getting a judgment of conviction<\/p>\n
against the appellants                   from the trial Judge who in<\/p>\n
spite of       the materials on record, appears falling in<\/p>\n
error    of    acting        on    that    fabricated        evidence.      Shri<\/p>\n
Singh took us through the                  evidence of each and           every<\/p>\n
witness and contended               that the interestedness of the<\/p>\n
Investigating        Officer             and     whole      of    the    police<\/p>\n
establishment was of such a class and degree that<\/p>\n
while P.W. 14 was amidst his cross examination, they<\/p>\n
created evidence by allegedly searching the house of<\/p>\n
the     deceased    on       8.5.2007          and    showed     recovery     of<\/p>\n
certain       packing     materials            in    respect     of    different<\/p>\n
articles said to be recovered from the possession of<\/p>\n
different accused persons which were allegedly taken<\/p>\n
away by the accused persons by committing the twin<\/p>\n
murders on account of their seizure on 8.5.2007 and
\n                                                                 22<\/span><\/p>\n
those cartons or packing materials were produced in<\/p>\n
court as evidence of the articles belonging to late<\/p>\n
Papiya Ghosh and accordingly the             evidence was led<\/p>\n
through P.W. 14 in paragraph 66 that he            was called by<\/p>\n
the police and the house was re-searched to recover<\/p>\n
those articles. It was further contended that it was<\/p>\n
not the end of the matter. The police prepared seizure<\/p>\n
memos of different vouchers\/ receipts issued to the<\/p>\n
deceased late Papiya Ghosh for purchasing different<\/p>\n
articles which were the subject matters of theft from<\/p>\n
different retailers and the copies of the vouchers<\/p>\n
which   were got generated electronically to be seized<\/p>\n
and produced in court by different seizure                   memos<\/p>\n
which were dated 12.5.2007. It was contended that P.W.<\/p>\n
15( Aisan Kumar) was examined in court on 26.4.2007<\/p>\n
and his cross examination was concluded on 21.5.2007<\/p>\n
and it is unusual that further investigation was done<\/p>\n
amidst the evidence of that particular witness along<\/p>\n
with others. It was as such contended that the Court<\/p>\n
should reject whole of the above evidence on account<\/p>\n
of   being    fabricated   so    as   to    strengthening     the<\/p>\n
prosecution evidence to obtain a conviction of the<\/p>\n
appellants of the charges.\n<\/p>\n
        30.        It   was     contended   that    the   seizure<\/p>\n
witnesses, like, P.Ws. 18, 19, and 20 did not support<\/p>\n
the seizure along with P.W.12 and as such the evidence<\/p>\n
of   recovery     of    articles      consequent      upon     the
\n                                                                         23<\/span><\/p>\n
information received from the accused, appears of no<\/p>\n
consequence.          It   was    contended        further   that      the<\/p>\n
appellants appear being picked up by the police for<\/p>\n
creating some evidence so as to calm down the public<\/p>\n
outcry as also to satisfy some of the higher ups,<\/p>\n
like, one of the sisters of the deceased, namely, Smt.<\/p>\n
Tuktuk Ghosh being one of the high ranking officer in<\/p>\n
the services of the Indian Union. It was contended<\/p>\n
that     the     whole       investigation,         prosecution        and<\/p>\n
conviction of the appellants is fit to be rejected.<\/p>\n
          31.         Shri Uday Kumar Singh also contended<\/p>\n
that the F.I.R. is a doubtful document as it mentions<\/p>\n
some    of     the    articles    which      were    removed      by   the<\/p>\n
culprits       from    the   house   of      the    deceased.     It   was<\/p>\n
contended that there was no mention in the document,<\/p>\n
Ext.7, as to who had pointed out the removal of these<\/p>\n
articles       from    the   house   of      the    deceased.     It   was<\/p>\n
contended that there is completely no evidence about<\/p>\n
theft    of    the    properties     from     the    house   of    Sushri<\/p>\n
Papiya Ghosh against any of the accused persons. It<\/p>\n
was next contended that Papiya Ghosh’s sister Smt.<\/p>\n
Tuktuk Ghosh was not examined and there was no reason<\/p>\n
as to why she was feeling shy in making any statement<\/p>\n
either on facts of the case including the details of<\/p>\n
the articles. It was next contended by Shri Uday Kumar<\/p>\n
Singh that the articles had been shown to the P.Ws as<\/p>\n
has    been    testified     by   PW.   26    in    paragraph     73   and
\n                                                                       24<\/span><\/p>\n
thereafter the T.I. Parade was organized so that they<\/p>\n
did not have any difficulty in identifying them. It<\/p>\n
was contended as such that the T.I. parade Charts,<\/p>\n
Ext.9 series were table works having no sanction of<\/p>\n
law and procedure. Learned counsel appearing for the<\/p>\n
appellant Shankar Kanu alias Shankar Sao and others<\/p>\n
also     made   submission        on   sentence        that   all   the<\/p>\n
appellants except Ram Chandra Mahto were young persons<\/p>\n
and it was their first offence. Their whole lives were<\/p>\n
ahead of them. They do not bear any previous history<\/p>\n
of conviction and it was a fit case in which a chance<\/p>\n
must be given to them for reforming themselves.<\/p>\n
          32.        Shri Kanhaiya Prasad Singh, learned<\/p>\n
Senior counsel took us through the provision of the<\/p>\n
Indian     Penal   Code      in    respect        of    retaining    or<\/p>\n
possessing      properties    obtained       in    theft      and   then<\/p>\n
submitted that the conviction of appellant Ram Chandra<\/p>\n
Mahto under Section 414 of the Penal Code was not<\/p>\n
justified as the offence Under Section 414 and the<\/p>\n
offence under Section 412              of the I.P.C. do not go<\/p>\n
hand in hand. Shri Singh submitted that the offences<\/p>\n
under Sections 411\/412 of the Penal Code are different<\/p>\n
from the offence under Section 414 of the Penal Code.<\/p>\n
The charge was under Section 412 of the Penal Code and<\/p>\n
as such the conviction of appellant Ram Chandra Mahto<\/p>\n
under Section 414 of the Penal Code was not legally<\/p>\n
fit to be sustained.          Shri Singh has referred to us
\n                                                                   25<\/span><\/p>\n
some    of      paragraphs    of     the   judgment   impugned    on<\/p>\n
discussions of the evidence and ultimate finding                  of<\/p>\n
guilt        in respect of     appellant Ram Chandra Mahto,<\/p>\n
like paragraph 64 and has referred also to some of the<\/p>\n
judgments, like, A.I.R. 1955 S.C. 274, Nanak Singh Vs.<\/p>\n
State of Punjab A.I.R. 1956, S.C.116 Willie(William)<\/p>\n
Slaney Vs. State of Madhya Pradesh and A.I.R. 1928<\/p>\n
Bombay, 145 Emperor Vs. Hanma Timma Bhandiwaddar to<\/p>\n
submit that the offence under Section 411 of the Penal<\/p>\n
Code on receiving of stolen property and that under<\/p>\n
Section 414 of assisting to conceal stolen property<\/p>\n
being distinct from each other, the conviction of the<\/p>\n
appellant under Section 414 of the Penal Code                without<\/p>\n
there being any charge under that section was not fit<\/p>\n
to be sustained. It was further contended that by<\/p>\n
virtue of his statement under Section 313 Cr. P.C.<\/p>\n
that he was handed over the washing machine by Shankar<\/p>\n
Kanu alias Shankar Sao, appellant Ram Chandra could<\/p>\n
not be assigned the knowledge that it was a stolen<\/p>\n
property and still he retained the property in his<\/p>\n
possession. Shri Singh also referred to the                 evidence<\/p>\n
of P.Ws. 18 and 19 and the provision of Section 104 of<\/p>\n
the Cr.P.C. to submit that they were not                     willing<\/p>\n
witnesses to associate themselves            with the search and<\/p>\n
seizure       rather   they   were     forced   to    put      their<\/p>\n
signatures over the document without being associated<\/p>\n
with that part of investigation. Shri Singh pointed
\n                                                                             26<\/span><\/p>\n
out to us that the very manner of keeping the washing<\/p>\n
machine and also the very place where it was kept<\/p>\n
could give rise to an inference that it was not the<\/p>\n
possession knowingly obtained by appellant Ram Chandra<\/p>\n
Mahto and there was no evidence on record to show that<\/p>\n
the receipt of the property was dishonest.<\/p>\n
          33.      As     against         the    above,      Shri    Ashwini<\/p>\n
Kumar Sinha, learned Additional Public Prosecutor has<\/p>\n
submitted that the information given by the accused<\/p>\n
persons   in    custody       of    the    police           and    consequent<\/p>\n
recoveries      are     the    foundation            of   the     prosecution<\/p>\n
evidence. The seizure witnesses have, of course, gone<\/p>\n
hostile   but   that    may        not    be    of    any    avail    to   the<\/p>\n
defence because they had admitted that they had signed<\/p>\n
the seizure memo and they had also admitted that the<\/p>\n
search and seizure were made in their presence and<\/p>\n
their writings to the above effect were there on it.<\/p>\n
Shri Sinha placed reliance upon (2006) 2 S.C.C.(Cri.)<\/p>\n
444,   Surendra        Singh       Vs.State          of   Haryana     It   was<\/p>\n
contended that once recovery was consequent upon the<\/p>\n
information given by the accused persons, the burden<\/p>\n
to explain the possession of the articles obtained<\/p>\n
through theft by committing the twin murders and their<\/p>\n
participation in the offence rested upon them. It was<\/p>\n
submitted that even if there had not been any T.I.<\/p>\n
parade, it was of no consequence as the articles were<\/p>\n
all bearing manufacturing serials number, etc. and the
\n                                                                         27<\/span><\/p>\n
documents regarding their purchase by or possession of<\/p>\n
the     deceased,     that’s,        the    receipts    were    produced<\/p>\n
during the course of hearing.\n<\/p>\n
          34.          As     regards         the      conviction      of<\/p>\n
appellant Ram Chandra Mahto, it was contended by Shri<\/p>\n
Sinha    that he      could not derive any benefit of                being<\/p>\n
convicted of offence          which was different from the one<\/p>\n
under which he had been               charged in the light of the<\/p>\n
provision of Sections 221 and 464                    Cr. P.C. It was<\/p>\n
contended that the trial court took a lenient view of<\/p>\n
sentencing while passing of sentence upon appellant<\/p>\n
Ram Chandra Mahto.\n<\/p>\n
          35.         Shri    Sinha        contended    that    awarding<\/p>\n
death sentence to appellant Shankar Kanu alias Shankar<\/p>\n
Sao and awarding rigorous imprisonment for life to<\/p>\n
appellants      who   also    appear        convicted    on    same    and<\/p>\n
similar nature of evidence does not conform to the<\/p>\n
principle of uniform sentence for equal offence and<\/p>\n
participation in it. Shri Sinha was fairly conceding<\/p>\n
that    the   appellants      other        than   Shankar     Kanu   alias<\/p>\n
Shanker Sao were being awarded rigorous imprisonment<\/p>\n
for life and it was required of the learned trial<\/p>\n
Judge    to   be    uniform     in    equally     awarding     the    same<\/p>\n
sentence to appellant Shankar Kanu alias Shankar Sao.<\/p>\n
Though Shri Sinha was very strongly arguing that it<\/p>\n
could be a very fit case coming under the category of<\/p>\n
the rarest of rare cases, but one could not choose one
\n                                                                      28<\/span><\/p>\n
accused out of many to hang him to death while the<\/p>\n
other equal participants could be directed to suffer<\/p>\n
rigorous imprisonment for life. It was contended by<\/p>\n
Shri   Sinha      that    in       absence    of   any    appeal    for<\/p>\n
enhancement of sentence in respect of appellants Anil<\/p>\n
Uraon, Manohar Kumar and Ashish Kumar the court is<\/p>\n
free to pass equal sentence upon them and while doing<\/p>\n
so the court must apply the principle of Shraddanand<\/p>\n
Swami’s case.\n<\/p>\n
            36.      Before I grapple with the contentions<\/p>\n
of the sides to record my findings on facts of the<\/p>\n
case, I want to point out that the witnesses could be<\/p>\n
categorized in more than four classes. I have mainly<\/p>\n
categorised them in three categories. P.Ws. 1 and 5<\/p>\n
are witnesses to speak of their being no response from<\/p>\n
inside the house when P.W. 5 Gita Devi, a maid servant<\/p>\n
of the deceased, reached early in the morning to do<\/p>\n
the household cores. She informed that P.W. 1 Neeta<\/p>\n
Aditya and this is how the two entered inside the<\/p>\n
house. P.W. 2 Ram Prasad was a labourer, who as per<\/p>\n
his evidence was doing maintenance works in the house<\/p>\n
of the deceased        for about one month and on the eve of<\/p>\n
the occurrence he had been paid his labour charges by<\/p>\n
the deceased, late Papiya Ghosh. He stated that he<\/p>\n
came   on    picking     up    a    rumour    about   his   temporary<\/p>\n
employer     being   murdered        with    her   maid   servant   and<\/p>\n
found the dead bodies in her house. The other class of
\n                                                                             29<\/span><\/p>\n
witnesses       is   of     those     who   witnessed          seizure      of<\/p>\n
different articles from different places on pointing<\/p>\n
of the accused persons or on searches made by the<\/p>\n
police.\n<\/p>\n
          37.             The    third    class       of    witnesses     are<\/p>\n
officials like the Police Officers associated with the<\/p>\n
investigation        of    the     case   and    the       circle   officer,<\/p>\n
Patna, who supervised T.I. Parades. The category of<\/p>\n
seizure    witnesses        includes      P.W.    3    Alok     Ranjan    who<\/p>\n
noticed that on 15.12.2006 a vehicle and some police<\/p>\n
personnel having come in the neighbourhood                            of his<\/p>\n
house     at Mohalla Kurji Balupar came there with P.W. 8<\/p>\n
Om Prakash and both of them were requested by the<\/p>\n
police to accompany them in searching different houses<\/p>\n
and   places     and      the     first   house   searched          was   that<\/p>\n
belonging to appellant Shankar Kanu alias Shankar Sao<\/p>\n
who was the fourth son of one Yugeshwar Sao. He has<\/p>\n
testified the recoveries of different articles from<\/p>\n
the house of the above noted accused in respect of<\/p>\n
which Ext. 11\/4 was prepared. He,( P.W. 3) further<\/p>\n
stated in paragraph 5 of his evidence that the two<\/p>\n
witnesses along with the police personnel were led to<\/p>\n
a garage which had              a lock over it and which once used<\/p>\n
to be of one Harinandan Singh. The witness stated that<\/p>\n
the key of the lock was produced by accused Shankar<\/p>\n
Kanu alia Shankar Sao and the garage was unlocked and<\/p>\n
a Maruti 800 Car of white colour was found kept there.
\n                                                                                       30<\/span><\/p>\n
The    doors         of     the        car       were    pulled        open    and   the<\/p>\n
properties were found kept there in a bundle of cloth<\/p>\n
and    those         were       seized,           as     per     his    evidence      in<\/p>\n
paragraph        5        and     as     per       the    descriptions          of   the<\/p>\n
properties in Exts. 11\/4 and 11\/5.\n<\/p>\n
           38.                  P.W.         8    Om     Prakash       Puri    has   not<\/p>\n
supported the above statement of P.W. 3 but both of<\/p>\n
them   (   P.Ws.           3    and      8)       have     admitted       that       the<\/p>\n
recoveries were made in their presence. Om Prakash<\/p>\n
Puri( P.W.8) was declared hostile. But, if he was<\/p>\n
admitting the searches being made and further if he<\/p>\n
was admitting his writing and signature on the seizure<\/p>\n
memos,     then       the       Court            has    little     to    say    on   the<\/p>\n
veracity of the witness and his subsequent conduct of<\/p>\n
turning hostile. The witness had really witnessed the<\/p>\n
search and seizure of the articles as per Exts. 11\/4<\/p>\n
and 11\/5. Thus, the evidence of those witnesses( P.Ws.<\/p>\n
3 and 8) when               read in the light of the evidence of<\/p>\n
police     witnesses, like, P.W. 25                              S.I.Abhay Narayan<\/p>\n
Singh and P.W. 28 S.I. Kumar Abhinav establishes the<\/p>\n
fact that        accused Shankar Kanu alias Shankar Sao led<\/p>\n
the police to               places where properties belonging to<\/p>\n
the    deceased            were        concealed          and     those       were   the<\/p>\n
properties discovered consequent upon the information<\/p>\n
given by       appellant Shankar Kanu alias Shankar                              Sao to<\/p>\n
the police while he was in custody.\n<\/p>\n
                                                                            31<\/span><\/p>\n
            39.    The other witnesses in the above category<\/p>\n
are other seizure witnesses like P.Ws. 4 Kumar Ranjan<\/p>\n
Singh and P.W. 20 Pintu Kumar who had witnessed the<\/p>\n
search of the house of absconding accused Sanyog                         Rai<\/p>\n
by the police on account of being led to that place by<\/p>\n
appellants        Shankar       Kanu      alias    Shankar     Sao,   Ashish<\/p>\n
Kumar Rai and Manohar Kumar. The recoveries were, as<\/p>\n
per the seizure memo Ext. 11\/6. Those witnesses too<\/p>\n
did not support the search and seizure being made in<\/p>\n
their presence. But, both of them(P.Ws. 4 and 20) have<\/p>\n
admitted by writing over Ext. 11\/6 that the properties<\/p>\n
described         in     Ext.     11\/6     were    recovered     in     their<\/p>\n
presence. They have further admitted their respective<\/p>\n
signatures being genuine. Thus, the evidence of these<\/p>\n
witnesses,         in     spite     of     turning    hostile,        appears<\/p>\n
sufficient to establish that on searches,                       recoveries<\/p>\n
were made of the properties which were belonging to<\/p>\n
the    deceased, as per their own evidence.<\/p>\n
            40.         The above noted witnesses( P.W. 4 Kumar<\/p>\n
Ranjan Singh and P.W. 20 Pintu Kumar) were brought<\/p>\n
along   with       the    accused        persons   who   were    in   police<\/p>\n
custody to another place and while the police were<\/p>\n
moving on road            they found appellant Anil Uraon going<\/p>\n
by    the   road       and   he   was     questioned     and    taken   into<\/p>\n
custody. From his possession two notes of 20 pounds as<\/p>\n
also a lady watch of Allwyn make which were said to be<\/p>\n
belonging to the deceased which, as appears from the
\n                                                                              32<\/span><\/p>\n
confessional statement of appellant Shankar Kanu alias<\/p>\n
Shankar Sao, was handed over to appellant Anil Uraon<\/p>\n
were   also      recovered       from    his    pant-    pocket       as    per<\/p>\n
evidence of P.W. 28 S.I. Kumar Abhinav and those were<\/p>\n
recovered in presence of P.Ws. 4 and 20, vide Exts.<\/p>\n
11\/7 and they again wrote over the seizure memo that<\/p>\n
the articles were recovered in their presence. They<\/p>\n
have admitted the writings and their signatures.<\/p>\n
           41.           P.W. 9 Harendra Ram is the son of<\/p>\n
Jalandhar     Rai    and    his     house      is   situated     at     Kurji<\/p>\n
Balupar. It may be recalled that after a call was<\/p>\n
received    by     P.W.    17    Ashok    Kumar     from   the    cellular<\/p>\n
phone of the deceased and details were supplied by the<\/p>\n
service     provider,       i.e.,       Reliance       India    Ltd.,       the<\/p>\n
police called P.W. 17 and questioned him who led them<\/p>\n
to   the    house    of    Jalandhar          Rai   situated     at     Kurji<\/p>\n
Balupar and, accordingly, a room was pointed out by<\/p>\n
P.W. 17 where the person making a call could be found.<\/p>\n
A knock was given at the door. The door was opened.<\/p>\n
Appellants       Manohar    Kumar       and    Ashish   Kumar    Rai       were<\/p>\n
found inside and a search of the room was made in<\/p>\n
presence of P.W. 9 Harendra Rai and P.W. 10 Rikky<\/p>\n
Kumar. In fact, the evidence of P.W. 10 Rikky Kumar<\/p>\n
indicates that the police had made enquiries from him<\/p>\n
about the location of the house of Jalandhar Rai and<\/p>\n
it   was    P.W.    10     who    had    led     the    police    to       that<\/p>\n
particular house. On search of the house of Jalandhar
\n                                                                         33<\/span><\/p>\n
Rai,    articles,    such    as     Sony    Colour     T.V.,    Phillips<\/p>\n
music system, L.P.G. cylinder, stabilizer, etc. which<\/p>\n
were said to be the properties of the deceased were<\/p>\n
recovered as per the evidence of P.W. 9 Harendra Rai<\/p>\n
and P.W. 10 Rikky Kumar and also in the light of the<\/p>\n
evidence of P.W. 28 Kumar Abhinav and P.W. 25 S.I.<\/p>\n
Aabhay Narayan Singh and, accordingly, seizure memo<\/p>\n
Ext. 11\/2 was prepared by the police in presence of<\/p>\n
P.Ws. 9 and 10. Both the witnesses have testified to<\/p>\n
the recovery of the articles on the basis of their<\/p>\n
evidence which were also marked as material Exts.<\/p>\n
          42.         During course of argument Shri Uday<\/p>\n
Kumar     Singh     learned       counsel         appearing    for     the<\/p>\n
appellant Shankar Kanu alias Shankar Sao and others<\/p>\n
was criticizing the evidence of P.Ws. 9 and 10 on the<\/p>\n
ground that the witness P.W. 9 has stated in paragraph<\/p>\n
10 of his evidence that he was put in the police lock<\/p>\n
up for two days and was threatened to give evidence<\/p>\n
then only he would be released. The argument appears<\/p>\n
of no merit inasmuch as if there was                   threat that he<\/p>\n
would be released only when he had given evidence in<\/p>\n
the case, then it could be presumed that the witness<\/p>\n
was     in confinement and           produced        before the court<\/p>\n
under    arrest.     The    order    of     the    court   below     dated<\/p>\n
10.4.2007    on     which   date     P.W.    9    Harendra     Rai     was<\/p>\n
produced by learned Additional Public Prosecutor for<\/p>\n
his evidence, does not indicate that he was produced
\n                                                                         34<\/span><\/p>\n
under   arrest.     The        other    reason     for     rejecting   the<\/p>\n
argument    is    that     there       was   no    hindrance    for    the<\/p>\n
witness when he appeared before the court below for<\/p>\n
giving evidence to file a petition to the above effect<\/p>\n
that he had been threatened or was confined by being<\/p>\n
put in police lock up for giving his evidence. The<\/p>\n
witness appears further stating in paragraph 10 that<\/p>\n
the police had put a lock in a room from which the<\/p>\n
recoveries       were     made,    but       again    he    appears    not<\/p>\n
bringing into the notice of the court the above fact<\/p>\n
through a proper petition for delivery of possession<\/p>\n
of the said room after removal of the lock. On these<\/p>\n
grounds the contention appears hollow and fit to be<\/p>\n
rejected.\n<\/p>\n
         43.            Other argument which was advanced by<\/p>\n
Shri Uday Kumar Singh was that the witness, P.W.9, had<\/p>\n
given his evidence on recovery of articles in the<\/p>\n
court not out of his own free will. The recoveries<\/p>\n
were made in presence of P.W. 9 Harendra Rai appears<\/p>\n
established by the fact that in paragraph 26 of his<\/p>\n
cross examination the witness has stated that he had<\/p>\n
seen the         articles which were marked Exts. During<\/p>\n
course of his deposition he stated that the articles<\/p>\n
had been seen by him on the day of their recoveries<\/p>\n
also.\n<\/p>\n
         44.            Shri    Singh    was      contending    that   the<\/p>\n
recovery memo Ext. 11\/2 indicates that the search was
\n                                                                                 35<\/span><\/p>\n
made in the house of Jalandhar Rai but the police<\/p>\n
Officers have stated that it was the house of Harendra<\/p>\n
Rai. As may appear from the parentage of P.W. 9 he is<\/p>\n
the son of Jalandhar Rai and if the witness is taking<\/p>\n
the name of his son instead of the real landlord it<\/p>\n
was not going to make any difference. Both P.Ws. 9 and<\/p>\n
10 have stated that the articles were recovered in<\/p>\n
their     presence      and        they,        accordingly,       signed      the<\/p>\n
seizure memo.\n<\/p>\n
          45.         The    other       witnesses         belonging      to   the<\/p>\n
above     category          of     seizure        witnesses        are     P.W.12<\/p>\n
Rabindra Kumar and P.W. 13 Shravan Kumar Gupta. It may<\/p>\n
be recalled that after the search of the house of<\/p>\n
Jalandhar       Rai     or       of      P.W.     9   Harendra          Rai,   the<\/p>\n
appellants Manaohar Kumar and Ashish Kumar Rai were<\/p>\n
taken into custody and they pointed out to the police<\/p>\n
that Shankar Kanu alias Shankar Sao could be found in<\/p>\n
Chauhan    Apartment         in        New   Patliputra       Colony,      Patna.<\/p>\n
Accordingly, the police along with the two arrested<\/p>\n
accused Manohar Kumar and Ashish Kumar Rai came to New<\/p>\n
Patliputra      Colony           and    on        being     led    by    the   two<\/p>\n
appellants      to     the        guard      room     of    that    apartment,<\/p>\n
accused Shankar Kanu alias Shankar Sao was found lying<\/p>\n
there   who     was    identified            by    the     above   appellants.<\/p>\n
Shankar Kanu alias Shankar Sao was arrested and he was<\/p>\n
searched and from the right pocket of his full pant a<\/p>\n
cellular phone with Reliance Sim was recovered in his
\n                                                                             36<\/span><\/p>\n
presence. P.W. 12 Rabindra Kumar turned hostile and<\/p>\n
did   not    support       the      search       of   person   of   accused<\/p>\n
Shankar Kanu alias Shankar Sao and recovery of the<\/p>\n
cellular phone, though he              admitted that he had signed<\/p>\n
a   piece    of     paper.    He    has     further    admitted      in    his<\/p>\n
evidence in paragraph 3 that he had written that the<\/p>\n
seizure was made in his presence and, accordingly, he<\/p>\n
had signed the document. As regards P.W. 13 Shravan<\/p>\n
Prasad      Gupta,    he     has    fully    supported      the     fact    of<\/p>\n
search of the person of present appellant Shankar Kanu<\/p>\n
alias Shankar Sao and the recovery of the cellular<\/p>\n
phone. In spite of P.W. 12 being hostile his very<\/p>\n
admission of the fact that he wrote about the search<\/p>\n
being made in his presence and further that he signed<\/p>\n
the       seizure      memo        makes    it    utterly      meaningless<\/p>\n
whether he was supporting the seizure or not through<\/p>\n
his evidence in court. The evidence of P.Ws. 12 and 13<\/p>\n
proved      quite    satisfactorily          that     on   search    of    the<\/p>\n
person of accused Shankar Kanu alias Shankar Sao the<\/p>\n
recovery of the cellular phone was made.<\/p>\n
            46.            P.W. 18 Jitendra Kumar and P.W. 19<\/p>\n
Pappu     Singh are the witnesses in whose presence the<\/p>\n
house of appellant Ram Chandra Mahto was searched and<\/p>\n
a fully      automatic washing machine was recovered. P.W.<\/p>\n
18 Jitendra Kumar has testified to the above facts<\/p>\n
besides stating that copy of the seizure memo was also<\/p>\n
made over to appellant Ram Chandra Mahto. P.W. 19
\n                                                                   37<\/span><\/p>\n
Pappu Singh did not support this fact and as such he<\/p>\n
was declared hostile. But, Ext. 11\/10 which is the<\/p>\n
seizure memo in respect of the recovery of washing<\/p>\n
machine from the house of appellant Ram Chandra Mahto<\/p>\n
indicated that both the witnesses had written in their<\/p>\n
own hands that the washing machine was recovered in<\/p>\n
their presence and they duly signed over it which fact<\/p>\n
was admitted even by P.W. 19 Pappu Singh. Thus, the<\/p>\n
search of the house of appellant Ram Chandra Mahto and<\/p>\n
recovery of the washing machine therefrom is fully<\/p>\n
established.\n<\/p>\n
         47.    It is not that the recoveries of articles<\/p>\n
were made from different places in presence of the<\/p>\n
witnesses as pointed out in some earlier parts of the<\/p>\n
judgment, but those properties were also put on T.I.<\/p>\n
parade   in    presence    of   P.W.   24   who   was   the    Block<\/p>\n
Development Officer-cum-Circle Officer, Patna, and who<\/p>\n
was deputed by the Chief Judicial Magistrate, Patna<\/p>\n
for   conducting    the    T.I.    Parade    of   the   recovered<\/p>\n
articles. If one considers the evidence of P.W. 24<\/p>\n
Shri Nirmal Kumar, in the light of the evidence of<\/p>\n
P.Ws. 15 and 26, namely, Aisan Kumar and Jesan Kumar,<\/p>\n
one could very well find that there was clinching<\/p>\n
evidence      indicating    that    the     articles    were     the<\/p>\n
household articles of the deceased which were removed<\/p>\n
by the accused persons after committing the murder of<\/p>\n
the two deceased. Aisan Kumar and Jesan Kumar are the
\n                                                                                    38<\/span><\/p>\n
sons of P.W. 14 Kamla Ram. The evidence of                                 P.W. 14<\/p>\n
Kamla Ram may indicate that his mother, the other<\/p>\n
deceased Malti Devi,                was working in the house of late<\/p>\n
Papiya Ghosh for last 40 years and used to reside in<\/p>\n
the    same    house.          He    has     stated     that    after        having<\/p>\n
received information about the murder of his mother<\/p>\n
and     the land lady deceased                   Papiya Ghosh, he                went<\/p>\n
there and found that the floor of the                      rooms where the<\/p>\n
dead bodies were found were splashed with blood. It<\/p>\n
appears from the evidence of P.W. 14 that after having<\/p>\n
committed the murders, the culprits had looted away or<\/p>\n
taken away the properties from the house. He gave the<\/p>\n
details      of     the    properties           in    paragraph       3     of    his<\/p>\n
evidence. He further stated that when the articles<\/p>\n
were    recovered         he    went       to   identify       them       before    a<\/p>\n
Magistrate         and    did       identify     them.    The    evidence          of<\/p>\n
identification of articles comes in paragraphs 5 and 6<\/p>\n
of     his    evidence.             During      his     course        of     cross-<\/p>\n
examination, P.W. 14 has stated that there were eight<\/p>\n
other cars and he identified the car of the deceased.<\/p>\n
He further stated              that there was no number plate over<\/p>\n
the    car    and        this       evidence     gets    support          from    the<\/p>\n
evidence of P.W. 11 and also                         from the of           P.W. 28,<\/p>\n
the Investigating Officer and other witnesses on the<\/p>\n
point.\n<\/p>\n
             48.          As regards the competence of other<\/p>\n
witness, like P.Ws. 15 and 26, the evidence of P.W. 14
\n                                                                        39<\/span><\/p>\n
could be relevant. He has stated that his son Jesan<\/p>\n
Kumar( P.W. 26) was a student in the NIIT and he used<\/p>\n
to live in the house of Papiya Ghosh. Prior to him,<\/p>\n
Aisan   Kumar(     P.W.   15)    was     living   in    the    house   of<\/p>\n
Papipa Ghosh.       If one considers the evidence of P.Ws.<\/p>\n
14, 15 and 26 one could come to a conclusion that the<\/p>\n
three witnesses were fully acquainted with every nook<\/p>\n
and corner of the house and each and every household<\/p>\n
article available in the house.                They appear not only<\/p>\n
completely attached to the deceased Papiya Ghosh, but<\/p>\n
also to her belongings which fact appears remarkably<\/p>\n
coming out of the evidence when the two witnesses<\/p>\n
Aisan Kumar and Jesan Kumar( P.Ws. 15 and 26) gave<\/p>\n
specific      reasons     for     identifying        each     and   every<\/p>\n
article    by them. P.W. 15 has given identifying marks<\/p>\n
by which he identified the T.V.( P.W. 15, paragraph<\/p>\n
42), the computer monitor ( P.W. 15, paragraph 45) and<\/p>\n
L.P.G. cylinder( P.W. 15, paragraph 49). The letter<\/p>\n
\u2017p’ found by the witness written on the sound box<\/p>\n
which   was   the    first      letter    of   the     first    name   of<\/p>\n
deceased Papiya Ghosh on some of her belongings was<\/p>\n
one such special mark for identification. Similar is<\/p>\n
the evidence of P.W. 26 who has given specific reasons<\/p>\n
for identifying the articles by pointing out those<\/p>\n
special    marks    of    identification          during      his   cross<\/p>\n
examination from paragraph 7 onwards.                   Thus, I find<\/p>\n
that the articles which were removed from the house of
\n                                                                            40<\/span><\/p>\n
Sushri   Papiya      Ghosh      were     duly      recovered     and     duly<\/p>\n
identified     by   the    witnesses         who       were   competent    to<\/p>\n
identify them.\n<\/p>\n
         49.         It was contended by Shri Uday Kumar<\/p>\n
Singh that no family member of Papiya Ghosh, specially<\/p>\n
Ms Tutuk Ghosh came forward to give her evidence and<\/p>\n
further came forward to identify the belongings of the<\/p>\n
deceased which, as per the prosecution, were recovered<\/p>\n
on   pointing   of     the      accused     persons       or    from   their<\/p>\n
possession.     This      may    be    evidently         clear   that     the<\/p>\n
deceased   late     Papiya       Ghosh      was    an    unmarried     lady(<\/p>\n
P.W.14 Paragraph 15) and she had                   three sisters( P.W.<\/p>\n
14, Paragraph 19) and they were all married and were<\/p>\n
residing   with      their      husbands.         Ms    Tutuk    Ghosh    was<\/p>\n
Secretary to the Speaker of the Lok Sabha and it is<\/p>\n
admitted that in the night of occurrence the deceased<\/p>\n
and the maid servant were residing in the house. The<\/p>\n
fact of the case does not indicate that any of the<\/p>\n
sisters of Papiya Ghosh had come in the near future<\/p>\n
even to see her. The deceased’s maid servant Malti,<\/p>\n
her son P.W. 14 and her two grand sons were companions<\/p>\n
of her or frequent visitors to the deceased Papiya<\/p>\n
Ghosh. It may be appreciated only after going through<\/p>\n
the evidence of P.W. 14 in paragraphs 29 and 30, as to<\/p>\n
how close the family members of Malti had been to the<\/p>\n
deceased     Papiya       Ghosh.       As    such,       they    could     be<\/p>\n
competent persons to identify each and every article
\n                                                                           41<\/span><\/p>\n
in the house and that appears the reason that they<\/p>\n
have    very    meticulously          given        special      signs    for<\/p>\n
identifying      each        and     every       article       which    were<\/p>\n
recovered      from    different       places       by   the    police   on<\/p>\n
pointing of the accused persons. Even P.W. 14 Kamla<\/p>\n
Ram    has   given     very        sound     and    good     reasons     for<\/p>\n
identifying different articles as may appear from his<\/p>\n
cross examination in paragraph 48 and onwards. Hence,<\/p>\n
non-examination of Ms. Tutuk Ghosh or any other sistr<\/p>\n
of Sushri Papiya Ghosh appears of no consequence.<\/p>\n
          50.    From the narration which is based on the<\/p>\n
evidence of the prosecution, it is quite clear that<\/p>\n
the    police    had    no    clue     for    quite      sometimes      from<\/p>\n
3.12.2006 up to 16.12.2006 when a call was made by the<\/p>\n
cellular phone of the deceased by one of the accused<\/p>\n
persons to P.W. 17 Ashok Kumar. He led the police to<\/p>\n
appellants Mahohar Kumar and Ashishs Kumar Rai. The<\/p>\n
recoveries      were   made        there   and     the   two    appellants<\/p>\n
having given information about the whereabouts of the<\/p>\n
appellant      Shankar       Kanu    alias    Shankar      Sao,    he    was<\/p>\n
apprehended from the guard room of the Apartment and<\/p>\n
he led the police to the recoveries from different<\/p>\n
places even from the possession of absconding accused<\/p>\n
persons, namely, Sanyog Rai and Md. Mustakim Mian. The<\/p>\n
confessional statements of the accused persons appear<\/p>\n
recorded by the police. The confessional statement of<\/p>\n
appellant Manohar Kumar and Ashish Kumar Rai are Exts.
\n                                                                             42<\/span><\/p>\n
12 and 12\/1,while that of Shankar Kanu alias Shankar<\/p>\n
Sao   has     been       marked       Ext.12\/2.       The     confessional<\/p>\n
statement of appellant Anil Uraon is Exrt. 12\/3. As<\/p>\n
regards the recoveries from the room in occupation of<\/p>\n
Manohar Kumar and Ashish Kumar Rai it was not made<\/p>\n
consequent upon any information about the place of<\/p>\n
concealment of the theft properties. It was simply by<\/p>\n
virtue of a call made by one of the accused persons on<\/p>\n
the cellular phone of P.W. 17 that the police was led<\/p>\n
to the room in occupation of the two appellants and<\/p>\n
recovered         the    theft       properties.      As      such,    those<\/p>\n
recoveries        are    not    covered      by     Section    27     of   the<\/p>\n
Evidence     Act.       Whereas      the    place    of   concealment       of<\/p>\n
Shankar      Kanu       alias     Shankar     Sao     was     consequently<\/p>\n
discovered by the police on the information given to<\/p>\n
it by appellants Manohar Kumar and Ashish Kumar Rai to<\/p>\n
the police and thereafter appellant Shankar Kanu alias<\/p>\n
Shanar Sao was arrested and on search was found in<\/p>\n
possession of the cellular phone registered in the<\/p>\n
name of the deceased.\n<\/p>\n
            51.          I have already discussed the evidence<\/p>\n
on    the    ownership          of    the     cellular        phone    while<\/p>\n
discussing the facts of the case which is mainly based<\/p>\n
on the evidence on record that the Reliance India Ltd.<\/p>\n
informed that it was registered in the name of the<\/p>\n
deceased Papiya Ghosh. Shankar Kanu alias Shankar Sao<\/p>\n
stated in his confessional statement about the place
\n                                                                     43<\/span><\/p>\n
of concealment of the properties which were removed<\/p>\n
from the house of the deceased after commission of the<\/p>\n
murder and, accordingly, the searches were made in his<\/p>\n
own house, in the garage of one Harinandan Singh and<\/p>\n
the house of              Sanyog Rai and the garage of Md.<\/p>\n
Mustakim Mian. Those places were found concealing one<\/p>\n
or the other articles which were identified by P.Ws.<\/p>\n
14,15 and 26 before P.W. 24 Shri Nirmal Kumar. Thus,<\/p>\n
the recoveries from the house of Shankar Kanu alias<\/p>\n
Shankar Sao and, thereafter, from the places, like,<\/p>\n
garage of Harinandan Singh, the houses of Sanyog Rai<\/p>\n
and   Md.    Mustakim      were   duly    admissible       as    facts<\/p>\n
discovered        under Section 27 of the Evidence Act. It<\/p>\n
is    needless      to    point     out   that    the   term     \u2015fact<\/p>\n
discovered\u2016 includes the places of concealment of the<\/p>\n
properties        or     objects.      Accordingly,        the   whole<\/p>\n
statement as regards the               discovery of the fact of<\/p>\n
concealment        of different articles from a particular<\/p>\n
place or places appears clearly admissible which were<\/p>\n
consequent upon to the information received by the<\/p>\n
police      from Shankar Kanu alias Shankar Sao after he<\/p>\n
had   given       the    information      on     account    of   being<\/p>\n
questioned during police custody.\n<\/p>\n
            52.    So far     the recoveries of articles from<\/p>\n
the room in possession of appellant               Manohar Kumar and<\/p>\n
Ashishk Kumar Rai and Anil Uraon is concerned, it may<\/p>\n
be true that Shankar Kanu alias Shankar Sao had merely
\n                                                                   44<\/span><\/p>\n
pointed out that two          notes of 20 pounds each along<\/p>\n
with a lady watch of Allwyn make which belonged to the<\/p>\n
deceased     and which was identified by P.Ws. 14, 15 and<\/p>\n
26, were recovered from         the pant pocket of appellant<\/p>\n
Anil Uraon but there was no exact information about<\/p>\n
the place from where those could be found. Hence, that<\/p>\n
recovery, to me, appears not covered by Section 27 of<\/p>\n
the Evidence Act. Likewise, the recoveries from the<\/p>\n
room in which appellant Manohar Kumar and Ashish Kumar<\/p>\n
Rai were found on search, were also not consequent<\/p>\n
upon   any   information      received   from    the   appellants.<\/p>\n
Hence, those recoveries may also not be admissible<\/p>\n
under Section 27 of the Evidence Act.\n<\/p>\n
          53.      Now, the question is as to how evidence<\/p>\n
of    recoveries    as    against   appellants   Manohar      Kumar,<\/p>\n
Ashish Kumar Rai and Anil Uron could be admissible and<\/p>\n
may be sufficient for upholding their convictions. The<\/p>\n
recoveries are admissible on account of the conduct of<\/p>\n
the    appellants    of    having   participated       and   thereby<\/p>\n
being found in possession of the theft properties.<\/p>\n
Section 114(a) of the Evidence Act reads that if a<\/p>\n
person is found in possession of any theft property<\/p>\n
just after the theft has been committed, he is either<\/p>\n
a thief or is a receiver of the stolen property. It<\/p>\n
may be argued, though it has not been argued before<\/p>\n
us, that the recoveries were made after about 13 days<\/p>\n
of the occurrence from the possession of Manohar Kumar
\n                                                                   45<\/span><\/p>\n
and   Ashish     Kumar    from   a   room     as   also   from   the<\/p>\n
possession of Anil Uraon and as such the recoveries<\/p>\n
are not \u2015just after\u2016 the removal of the properties<\/p>\n
from the house of the deceased to their respective<\/p>\n
possessions.     It must be borne in mind that a stricter<\/p>\n
application of the provision by construing the term<\/p>\n
\u2016just after the offence has been committed\u2016, may lead<\/p>\n
to disastrous results inasmuch as recoveries could be<\/p>\n
relatable to the commission of the offence under the<\/p>\n
special facts of a particular case.\n<\/p>\n
         54.         Here the police was groping in dark<\/p>\n
after the twin murders had been committed and the<\/p>\n
whole of the properties of the household including a<\/p>\n
vehicle had been removed by the culprits. The police<\/p>\n
was not getting any opening. It was only sitting tight<\/p>\n
and watching out for any error to which the culprits<\/p>\n
may fall. Lastly, that plan occurred and a call from<\/p>\n
the   cellular    phone    was   made   and    that   led   to   the<\/p>\n
complete cracking of the case. It may also be relevant<\/p>\n
to point out that there was no defence taken that the<\/p>\n
properties had been possessed by any of the appellants<\/p>\n
bona fide on account of being handed over to them by<\/p>\n
any other person.          This at best could be said in<\/p>\n
respect of appellant Shankar Kanu alias Shankar Sao,<\/p>\n
Manohar Kumar and Ashish Kumar Rai. As soon as the<\/p>\n
police got an information from the arrested appellants<\/p>\n
Manohar Kumar and Ashish Kumar Rai the whole truth
\n                                                                             46<\/span><\/p>\n
came out in the form of informations, firstly, about<\/p>\n
appellant        Shankar        Kanu     alias      Shankar    Sao     and,<\/p>\n
thereafter, from him of other destinations and the<\/p>\n
persons who could be found in possession of different<\/p>\n
properties. Thus, to me, it appears a case where the<\/p>\n
gap of 12-13 days in making recoveries appears of no<\/p>\n
consequence.          It   could       still   be   \u2017just     after’       the<\/p>\n
incident on the special facts of the present case. As<\/p>\n
such, in spite of there being no information leading<\/p>\n
to   the   recovery        of    the    articles     from    the    room    in<\/p>\n
occupation       of    appellants        Manohar     Kumar    and    Ashish<\/p>\n
Kumar Rai the respective recoveries established their<\/p>\n
participation both as participants and retainers of<\/p>\n
the stolen properties.\n<\/p>\n
            55.        On the same reasons the recoveries of<\/p>\n
the two notes of 20 pounds each and a lady watch<\/p>\n
belonging to the deceased could bring the charges home<\/p>\n
against Anil Uraon.\n<\/p>\n
           56.         Thus, the contention that there was no<\/p>\n
evidence on the theft of properties from the house of<\/p>\n
Sushri Papiya Ghosh appears of no consequence inasmuch<\/p>\n
as   the     evidence           is     sufficient.     Many        witnesses<\/p>\n
including        the       police      officers      stated    that        the<\/p>\n
properties were found removed from the house and those<\/p>\n
were ultimately recovered from difference places as<\/p>\n
already discussed. The evidence of the police officers<\/p>\n
that they found the marks of keeping of the properties
\n                                                                                   47<\/span><\/p>\n
at    different         places       on     account      of     dust       having<\/p>\n
deposited,        is     not    an    untrustworthy           circumstantial<\/p>\n
evidence. We put our household articles at many places<\/p>\n
and when that very thing is removed after some months,<\/p>\n
the   mark   of        early    presence      of   that       thing    is    left<\/p>\n
behind after its removal.\n<\/p>\n
         57.        Shri Uday Kumar Singh, learned counsel<\/p>\n
for the appellants Shankar Kanu alias Shankar Sao,<\/p>\n
Manohar Kumar, Ashish Kumar Rai and Anil Uraon has<\/p>\n
criticized the F.I.R. as a doubtful document. One must<\/p>\n
not lose sight of the fact that P.Ws. 1 and 5 were the<\/p>\n
first   persons         who    entered      the    house.      P.W.    1     is   a<\/p>\n
neighbour      of      the     deceased      and    she       appears       quite<\/p>\n
familiar with the deceased Papiya Ghosh and her family<\/p>\n
members. She has given the description of all the<\/p>\n
other three sisters of Papiya Ghosh in paragraphs 17<\/p>\n
and 18 of her evidence and further the intellectual<\/p>\n
activity of the deceased Papiya Ghosh in paragraph 19.<\/p>\n
P.W. 5 Gita Devi was the maid servant. She was working<\/p>\n
in the household and she could be also knowing about<\/p>\n
the belongings of the deceased Pappiya Ghosh. It may<\/p>\n
be true that the name of the person who could have<\/p>\n
given full account of the missing properties might not<\/p>\n
have been given in the F.I.R., but at the same time it<\/p>\n
may be remembered that such details were not required<\/p>\n
to be given and even if it was given, it was not<\/p>\n
required     to     give       the   name    of    the    person       who    had
\n                                                                   48<\/span><\/p>\n
furnished those details. The veracity of the document<\/p>\n
appears genuine inasmuch as it was merely a document<\/p>\n
which was drawn up for setting the investigation in<\/p>\n
motion of a criminal case and if at all it had been<\/p>\n
drawn up with a motive to falsely              implicate someone,<\/p>\n
the police or any one who could have been influenced<\/p>\n
them,   could    have    put    any   name   with    more   specific<\/p>\n
details in it.\n<\/p>\n
         58.         The criticism of Shri Uday Kumar Singh<\/p>\n
on Test Identification Parade that the witnesses had<\/p>\n
been shown the articles appears meritless inasmuch as<\/p>\n
the seizure was made on 16.12.2006 and the T.I. Parade<\/p>\n
was held on 26.12.2006 in which              P.Ws. 14, 15 and 26<\/p>\n
were asked to participate and accordingly the articles<\/p>\n
were identified.        Even if they were shown the articles<\/p>\n
which were lying in the house of accused Shankar Kanu<\/p>\n
alias   Shankar        Sao     each   and    every    article    was<\/p>\n
identified      by    some   special    mark    or   some   special<\/p>\n
features appeared on each of them. while being cross<\/p>\n
examined the three witnesses pointed out the special<\/p>\n
marks and, thereafter, they were suggested that                 they<\/p>\n
had not made any such statement before P.W. 24 while<\/p>\n
identifying the articles.\n<\/p>\n
         59.         The rule of T.I. Parade of the articles<\/p>\n
is contained in Rule 236(b) of the Bihar Police Manual<\/p>\n
which reads as follows:\n<\/p>\n
                                                                49<\/span><\/p>\n
        \u2015236(b) Identification of suspected articles.-
\nIn this connection, the following instructions shall
\nbe followed word by word:-\n<\/p>\n
             (1)  For identification of one article
\n     three or four articles of similar nature shall be
\n     mixed up.\n<\/p><\/blockquote>\n
             (2) No mark shall be put on a suspected
\n     article. If it is essential to give a mark
\n     similar marks shall be placed on unsuspected
\n     articles.\n<\/p><\/blockquote>\n
             (3)  Care shall be taken to see that
\n     witnesses have not seen the suspected articles
\n     before the identification. Hence the witnesses
\n     shall not go with that officer who carries the
\n     articles before magistrate.\n<\/p><\/blockquote>\n
             (4)    Where any special mark has been\n     given   on    articles    from   before   and  their\n<\/pre>\n
     descriptions have been noted in first information
\n     report and in the statement of witnesses, the
\n     investigator shall fully scrutinize it after the
\n     article    has    been   recovered    and   if  from
\n     descriptions      given,     those    articles   are
\n     established, it shall not be necessary to get
\n     identification done. Only at the time of trial,
\n     the witnesses concerned shall identify these
\n     articles before courts.<\/p><\/blockquote>\n
             (5)  For the sake of identification it
\n     will be proper if articles, similar to suspected
\n     articles are made available.\u2016<\/p>\n
It may be found from the above provision of the Bihar<\/p>\n
Police Manual that for identifying a suspected article<\/p>\n
there is no necessity for any witness to say as to<\/p>\n
what was the special mark by which he picked up the<\/p>\n
articles   as   a   property   which   was   relatable    to   an<\/p>\n
offence. As in the case of suspected human being who<\/p>\n
bears any special marks of identification and who is<\/p>\n
put on T.I. Parade, there is no requirement              to blur<\/p>\n
or conceal that special mark in a case of suspected
\n                                                                        50<\/span><\/p>\n
article,    rather    the     provision       under    Sub-Rule(4)    of<\/p>\n
Rule 236(b) indicates that if the                article       bears any<\/p>\n
special marks of identification, as could be                      stated<\/p>\n
in the     first information report or in the statement<\/p>\n
of any witness during investigation, on recovery of<\/p>\n
such articles the marks of identification have to be<\/p>\n
tallied with the marks given by the witness or by the<\/p>\n
informant in his information and on being satisfied<\/p>\n
that the two tallied, there is no need of holding the<\/p>\n
T.I. parade of articles. It may be pointed out that<\/p>\n
while P.W. 26 was being cross examined the police<\/p>\n
recovered certain packing materials from the place of<\/p>\n
occurrence and also obtained electronically generated<\/p>\n
receipts      of     different        articles        from     different<\/p>\n
retailers      and      those     bore         special        marks   of<\/p>\n
identification which were also affixed on different<\/p>\n
articles which were recovered and identified by the<\/p>\n
witnesses. It appears that on account of ignorance of<\/p>\n
the rules, the articles were put on T.I. Parade by the<\/p>\n
police and they were duly identified by the witnesses<\/p>\n
by pointing special marks of identification. Hence,<\/p>\n
the T.I.      Parade does not appear against the rules<\/p>\n
rather   it   appears    as     per    rules    and,     as   such,   the<\/p>\n
suggestion     to the witnesses by the            defence that they<\/p>\n
had   not     pointed       out       those    special        marks   of<\/p>\n
identification to P.W. 24 appears completely out of<\/p>\n
the purview of Rule 236(b) of the Bihar Police Manual.
\n                                                                       51<\/span><\/p>\n
      60.          The other argument of Shri Uday Kumar<\/p>\n
Singh was that the witnesses had been shown the<\/p>\n
articles. It is true that in paragraph 73 P.W. 26<\/p>\n
has stated that he had seen the articles at the<\/p>\n
Police       Station         on    the    same     day     they     were<\/p>\n
recovered. But, he has corrected himself in the<\/p>\n
next line that he had seen the articles one day<\/p>\n
after        the    occurrence.           This    witness        appears<\/p>\n
confused       if        one      considers      his     evidence    in<\/p>\n
paragraph          73,    probably,       on     account    of     being<\/p>\n
subjected          to    a     very   lengthy,         gruelling     and<\/p>\n
searching cross examination. The evidence of the<\/p>\n
witness in paragraph 73 appears not affecting the<\/p>\n
merits of the proof of identification of articles<\/p>\n
inasmuch as there is no suggestion to any of the<\/p>\n
witnesses, be he a public witness or the police<\/p>\n
witness, that the articles were not belonging to<\/p>\n
the     deceased         which     were    not    removed     in    the<\/p>\n
occurrence. It is also not denied that the police<\/p>\n
had seized those articles and those articles were<\/p>\n
put     on     T.I.Parade          and     the    three     witnesses<\/p>\n
participated. In such view of the evidence, and<\/p>\n
in absence of any suggestion the argument appears<\/p>\n
of no consequence.\n<\/p>\n
      61.          One of the most important contentions<\/p>\n
of Shri Uday Kumar Singh was that while P.W. 15<\/p>\n
was amidst his cross examination the police went
\n                                                                      52<\/span><\/p>\n
to the place of occurrence house for searching it<\/p>\n
with P.Ws. 15 and 26 on 8.5.2007 and showed the<\/p>\n
recoveries of certain cartons and other packing<\/p>\n
materials      said      to    be    recovered       from   different<\/p>\n
accused persons which were allegedly taken away<\/p>\n
by the accused after committing the twin murders.<\/p>\n
It was contended that it was an unknown procedure<\/p>\n
of investigation and the evidence which was led<\/p>\n
through P.W. 14 on search and recovery of the<\/p>\n
above      packing    material         and   other    materials     as<\/p>\n
also of obtaining cash memo, etc. in respect of<\/p>\n
purchases of different articles were fit to be<\/p>\n
rejected.\n<\/p>\n
     62.      While narrating the facts of the case,<\/p>\n
it    has     been       pointed       out    that      there      were<\/p>\n
recoveries         from        the     respective       house      and<\/p>\n
establishment         of      accused    Sanyog       Rai   and    Md.<\/p>\n
Mustakim Mian who could not be apprehended. The<\/p>\n
Police submitted charge sheet by sending up the<\/p>\n
present      set    of     accused     for   trial     keeping     the<\/p>\n
investigation         pending.       Thus,    the     investigation<\/p>\n
was continuing and as such if the police was<\/p>\n
again going to the house of the deceased for<\/p>\n
collecting         further      evidence        in    the   form    of<\/p>\n
obtaining the cash receipts showing purchases and<\/p>\n
payment of price in respect of various articles<\/p>\n
by   the     deceased         Papiya    Ghosh    which      were   the
\n                                                                                  53<\/span><\/p>\n
subject matters of the present offence, it does<\/p>\n
not    appear          to    me     anything           unusual      under       the<\/p>\n
scheme of the Cr. P.C. Even if the investigation<\/p>\n
had    completely            been        closed        by    submitting         the<\/p>\n
report under Section 173 Cr. P.C. showing the<\/p>\n
other accused persons absconding, there was no<\/p>\n
hindrance in law by virtue of Section 173(8) Cr.<\/p>\n
P.C.        that       the        police         could        have        further<\/p>\n
investigated            the       case.        There    is    no        set   stage<\/p>\n
under       law    for       reopening          the     case       for    further<\/p>\n
investigating            it.       The     police       could       reopen     the<\/p>\n
investigation to carry out further investigation<\/p>\n
in     a    criminal          case        if    it     finds       such       fresh<\/p>\n
evidence. It is its statutory duty to collect all<\/p>\n
material evidence which may be required for doing<\/p>\n
complete justice and further to place it before<\/p>\n
the        court       for        its     consideration.                The    very<\/p>\n
language          of    Section           173(8)       is     explicit.        The<\/p>\n
police        was       within            its        powers        to     collect<\/p>\n
additional             evidence           by      taking           up     further<\/p>\n
investigation and to produce that fresh evidence<\/p>\n
in court any, which could be necessary for the<\/p>\n
proof       of     charges          in     a    case        even    after       the<\/p>\n
investigation               was    shut        out     and    the       case    was<\/p>\n
amidst       trial.          As         pointed        out     earlier,        the<\/p>\n
investigation was kept pending which means that<\/p>\n
the investigation was very much continuing. If
\n                                                                          54<\/span><\/p>\n
the police went again to the place of occurrence<\/p>\n
to collect further materials showing ownership of<\/p>\n
the properties and in that connection it obtained<\/p>\n
the    receipts    in     token     of       purchases          of    those<\/p>\n
properties and produced them in court, I do not<\/p>\n
see anything unusual in it which could affect the<\/p>\n
very merits of the evidence.\n<\/p>\n
      63.         Thus, on reading the evidence and<\/p>\n
considering the arguments in the light of the<\/p>\n
evidence,    I     find     that       the       very     recovery       of<\/p>\n
articles either directly from the possession of<\/p>\n
the    accused     persons        or        on    account        of    the<\/p>\n
information given by them to the police clearly<\/p>\n
proved the charges that the two deceased persons<\/p>\n
were    killed     in     course       of    commission          of     the<\/p>\n
dacoity and the properties were taken away. I<\/p>\n
uphold the conviction recorded against accused<\/p>\n
Shankar     Kanu        alias      Shankar              Sao,      Manohar<\/p>\n
Kumar,Ashish Kumar Rai and Anil                   Uraon.<\/p>\n
      64.           As regards appellant Ram Chandra<\/p>\n
Mahto, his conviction has been questioned mainly<\/p>\n
on the ground that though he was charged under<\/p>\n
Section     412    of      the     I.P.C.,         was         ultimately<\/p>\n
convicted under Section 414 of the Penal Code.<\/p>\n
The contention was further that the two offences<\/p>\n
being dissimilar the conviction of the appellant<\/p>\n
was bad in law.             Shri Kanhaiya Prasad Singh,
\n                                                                            55<\/span><\/p>\n
learned Senior counsel has placed reliance upon a<\/p>\n
few   decisions         which      I    have        noted    down       while<\/p>\n
noticing his arguments in the present judgment. I<\/p>\n
do    not    want      to    discuss          the    ratio       of     those<\/p>\n
decisions. I        want simply to note that it is true<\/p>\n
that the offences under Section 412 and 414 of<\/p>\n
the Penal Code are diametrically                           dissimilar as<\/p>\n
regards the ingredients of the two offences, but<\/p>\n
the     truth     of    the     matter         is     that       there     is<\/p>\n
sufficient evidence of                   the seizure witnesses,<\/p>\n
like P.Ws. 18 and 19 and that of P.W. 28 S.I.<\/p>\n
Kumar Abhinav that the washing machine which was<\/p>\n
identified by P.Ws. 14,15 and 26 was recovered<\/p>\n
from a part of the house, that’s from under the<\/p>\n
stair     case,     which       was      in     possession         of    the<\/p>\n
present appellant Ram Chandra Mahto.                          During his<\/p>\n
statement under Section 313 Cr. P.C. in answer to<\/p>\n
question no. 16, which is available to us at page<\/p>\n
390     of   the       Paper    Book,         this     appellant         has<\/p>\n
admitted     that      he    was       handed       over    the       washing<\/p>\n
machine by appellant Shankar Kanu alias Shankar<\/p>\n
Sao. In fact,            question No.16 put to appellant<\/p>\n
Ram Chandra         Mahto, was to the following effect<\/p>\n
\u2016The evidence was that you in your bail petition<\/p>\n
dated     1.2.2007       had     stated         that       you    had    got<\/p>\n
Manohar      Kumar          (appellant)         and         Sanyog       Rai(<\/p>\n
absconding accused) released on bail and that the
\n                                                                  56<\/span><\/p>\n
washing machine was given to you by appellant<\/p>\n
Shankar Kanu alias Shankar Sao. What have you to<\/p>\n
say?.\u2016 It is true that the answer is that the<\/p>\n
above statement was made in his application for<\/p>\n
bail    without     his    instructions.    But,      I    am   not<\/p>\n
inclined to accept this stand of the appellant<\/p>\n
inasmuch he is an Advocate who was practicing in<\/p>\n
the lower courts, Patna and no application could<\/p>\n
be said to be filed without his instructions. The<\/p>\n
replies of the appellant to various questions put<\/p>\n
under     Section    313    Cr.    P.C.    are   against        the<\/p>\n
established facts but I am not going to take note<\/p>\n
of that because the statement of an accused under<\/p>\n
Section3 13 Cr. P.C. could never be used against<\/p>\n
him. P.W.19 and the Investigating Police Officer<\/p>\n
have testified that the recovery of the washing<\/p>\n
machine was made from the house of appellant Ram<\/p>\n
Chandra     Mahto.    It    is    true    that   no       one   had<\/p>\n
participated in the T.I.parade but we must not<\/p>\n
loose sight of the provision of Section 221 Cr.<\/p>\n
P.C. which reads as under:-\n<\/p>\n
  \u2015 221. Where it is doubtful what offence has
\n  been committed.- (1) If a single act or series
\n  of acts is of such a nature that it is doubtful
\n  which of several offences the facts which can
\n  be proved will constitute, the accused may be
\n  charged   with having committed all or any of
\n  such offences and any number of such charges
\n  may be tried at once; or he may be charged in
\n  the alternative with having committed some one
\n  of the said offences.\n<\/p>\n
                                                                          57<\/span><\/p>\n
          (2) If in such a case the accused is charged
\n          with one offence, and it appears in evidence
\n          that he committed a different offence for which
\n          he might have been charged under the provisions
\n          of sub-section(1), he may be convicted of the
\n          offence which he is shown to have committed,
\n          although he was not charged with it.\u2016<\/p>\n
Besides    the      above,   there    is   yet    another       provision<\/p>\n
under    Section      464    Cr.   P.C.    according      to    which    no<\/p>\n
finding, sentence or order by a court of competent<\/p>\n
jurisdiction could be deemed invalid merely on the<\/p>\n
ground that there was any error or omission in framing<\/p>\n
of charges. The evidence is clear that the washing<\/p>\n
machine was found in possession of the appellant Ram<\/p>\n
Chandra Mahto. The evidence further is that it was<\/p>\n
recovered from his possession. He is supposed to be<\/p>\n
versed in law. He was further supposed to apply good<\/p>\n
care and precaution before allowing anything to be<\/p>\n
kept in his house. No property which could be a theft<\/p>\n
property       or   about    which    there      could    not    be     any<\/p>\n
certainty of being a thing to be allowed to be kept in<\/p>\n
one’s possession, could be allowed by a reasonable<\/p>\n
person to be kept in his house. Thus, I find that the<\/p>\n
appellant Ram Chandra Mahto was voluntarily assisting<\/p>\n
in concealment of the property on account of the fact<\/p>\n
that he was not putting any question to the person who<\/p>\n
had brought the machine to him as to what was the<\/p>\n
source    of    the   property       as   regards   the    same       being<\/p>\n
obtained. His act could be voluntary and it could be<\/p>\n
further said that he knew that it was not a fair
\n                                                                                    58<\/span><\/p>\n
 property. The evidence shows that it was obtained in<\/p>\n
 theft and the appellant Ram Chandra Mahto allowed it<\/p>\n
 to be kept and, thus, he kept it at his house. The<\/p>\n
 only     purpose       could      be     to    intentionally           allow    its<\/p>\n
 concealment by providing the proper place. May be,<\/p>\n
 that he was very much sure that on account of being an<\/p>\n
 Advocate     no       police    Officer        will    be    suspecting         his<\/p>\n
 indulgence and as such the                     property could very well<\/p>\n
 be concealed.\n<\/p>\n
            65.         Thus,    I      find    that   there       is     no    error<\/p>\n
committed by the learned trial Judge in convicting the<\/p>\n
appellant Ram Chandra Mahto of the offence under Section<\/p>\n
414 of the Penal Code in spite of there being no charge<\/p>\n
under that section.\n<\/p>\n
            66.               Having upheld the findings of the<\/p>\n
trial court as regards the finding of guilt against the<\/p>\n
appellants,       I    want     to      scrutinize      the       contention       of<\/p>\n
learned counsel for the appellants on sentence. It was<\/p>\n
contended by Shri Uday Kumar Singh learned counsel of<\/p>\n
appellants Shankar Kanu alias Shankar Sao, Manohar Kumar<\/p>\n
Ashish Kumar Rai and Anil Uraon that they are young<\/p>\n
persons     and       there   is     no       record    of    conviction         for<\/p>\n
committing     any       offence.        It     was    contended         that    the<\/p>\n
sentence of death passed against appellant Shankar Kanu<\/p>\n
alias     shankar       Sao   appears          excessive      and       should    be<\/p>\n
commuted     to       imprisonment        for     life.      It     was    further<\/p>\n
contended that appellant Shankar Kanu alias Shankar Sao
\n                                                             59<\/span><\/p>\n
could be given an opportunity of reforming himself. As<\/p>\n
regards appellant Ram Chandra Mahto it was contended by<\/p>\n
Shri Kanhaiya Prasad Singh, learned Senior Advocate that<\/p>\n
he is an Advocate practicing in civil courts, Patna and<\/p>\n
it was an unintentional, ignorant act that the washing<\/p>\n
machine could be allowed to be kept at his residence. It<\/p>\n
was contended that his whole career is there and as such<\/p>\n
he may be released on admonition.\n<\/p>\n
            67.   I first want to take up the contention<\/p>\n
on sentence passed against appellant Ram Chandra Mahto.<\/p>\n
He is a person who is        lettered in law. He practices<\/p>\n
law in lower courts. He belongs to a profession which<\/p>\n
has its own history of upholding values in society. His<\/p>\n
profession and the professionals belonging to it, were<\/p>\n
high class persons, like the father of Nation, the first<\/p>\n
President and the first Prime Minister of our country.<\/p>\n
All   the   leaders   who   fought   for   our   freedom   and<\/p>\n
independence belonged to that profession.        He appears a<\/p>\n
person who fell in greed forgetting his professional<\/p>\n
lineage and willfully concealed the theft property, the<\/p>\n
washing machine in his residence.      It was falling quite<\/p>\n
short of the etiquette offence when it is considered in<\/p>\n
context to the professional etiquettes of an Advocate.<\/p>\n
Having considered sentence passed against him in the<\/p>\n
above background, I find that the learned trial Judge<\/p>\n
has taken unduly a lenient view on it. The difficulty<\/p>\n
with this Court is that it had not issued notice of
\n                                                                              60<\/span><\/p>\n
enhancement, else, it was a fit case for inflicting<\/p>\n
enhanced sentence to appellant Ram Chandra Mahto. I do<\/p>\n
not have any reason for reducing the sentence or letting<\/p>\n
him off on admonition.\n<\/p>\n
               68.        The principle of sentencing envisages<\/p>\n
that equal sentence should be passed against all the<\/p>\n
accused who appear having participated in the same act<\/p>\n
or in similar acts in commission of an offence. The<\/p>\n
other aspect of sentencing is that the court inflicting<\/p>\n
sentence should ensure, as far as could be possible for<\/p>\n
it,   that     the    sentence      is    neither        excessive    nor    is<\/p>\n
disproportionately         inadequate.         It   is    evidently       clear<\/p>\n
from the findings recorded by me while confirming the<\/p>\n
finding      recorded      by    the     learned     trial     Judge,      that<\/p>\n
appellants       Shankar     Kanu      alias    Shankar       Sao,   Manohar<\/p>\n
Kumar,     Ashish     Kumar      Rai     and   Anil      Uraon   definitely<\/p>\n
participated         in   the    commission         of     murder    of     two<\/p>\n
defenceless women who had retired to the comforts and<\/p>\n
warmth    of    their     respective       beds     in    a   cold   December<\/p>\n
night. The injuries which were found by the Doctor, P.W.<\/p>\n
21 could be sufficient indicators of the above fact that<\/p>\n
the murders were diabolically committed for no rhyme or<\/p>\n
reason only with a view to eliminating any resistance of<\/p>\n
any sort to it either by an act or by voice so that the<\/p>\n
culprits       removed     the    properties        unhindered.           Their<\/p>\n
brutal act places the case amongst one of the rarest of<\/p>\n
rare cases.\n<\/p>\n
                                                                            61<\/span><\/p>\n
            69.             But, the difficulty with this Court<\/p>\n
is that there is no evidence coming directly against<\/p>\n
any of the appellants as to who had indeed committed<\/p>\n
the twin murders. The manner of killing of the deceased<\/p>\n
indicates as if they were stabbed and attacked while<\/p>\n
they    were    fast    asleep.       This    makes       the    act    very<\/p>\n
disturbing and barbarous. The manner and the mode of<\/p>\n
liquidating the two innocent                 lives out of which one<\/p>\n
was an intellectual and the other always in service of<\/p>\n
such an intellectual, who was nursing the intellectual<\/p>\n
as if she were the mother of Sushri Papiya Ghosh. This<\/p>\n
brings the act in the class of the most brutal and<\/p>\n
diabolic of murders. In absence of any direct evidence,<\/p>\n
this    Court   finds   it    difficult       to   confirm       the    death<\/p>\n
sentence passed against appellant Shankar Kanu alias<\/p>\n
Shankar Sao and has no other option than to commute it,<\/p>\n
though the Court feels that it is a case in which the<\/p>\n
death-sentence could be the most appropriate sentence<\/p>\n
to be inflicted upon the appellants. But, in absence of<\/p>\n
the direct evidence on participation by all or any of<\/p>\n
the     appellants,     namely,       Shankar      Kanu   alias       Shankar<\/p>\n
Sao,    Manohar    Kumar,Ashish       Kumar     Rai   and       Anil   Kumar<\/p>\n
Uraon the Court        feels that the life imprisonment which<\/p>\n
means 20 years after          insertion of Section 333A of the<\/p>\n
Cr.P.C. is also not an adequate sentence. Faced with<\/p>\n
the similar situation as we are faced in the present<\/p>\n
case,    the      Supreme     Court     in     the    case       of    Swamy
\n                                                                          62<\/span><\/p>\n
Shraddananda(2) alias Murali Manohar                  Mishra Vs. State<\/p>\n
of Karnataka reported in (2008) 13 S.C.C. 767 justified<\/p>\n
taking a recourse which could be               expanding the span of<\/p>\n
sentence   in     such    situations.    I     am    tempted   to   quote<\/p>\n
paragraph 92 of the said decision which is as under:-<\/p>\n
               \u2015 The matter may be looked at from
\nslightly different angle. The issue of sentencing has
\ntwo aspects. A sentence may be excessive and unduly
\nharsh or it may be highly disproportionately inadequate.
\nWhen an appellant comes to this Court carrying a death
\nsentence awarded by the trial court and confirmed by the
\nHigh Court, this Court may find, as in the present
\nappeal, that the case just falls short of the rarest of
\nthe rare category and may feel somewhat reluctant in
\nendorsing the death sentence. But at the same time,
\nhaving regard to the nature of the crime, the Court may
\nstrongly feel that a sentence of life imprisonment
\nsubject to remission normally works out to a term of 14
\nyears would be grossly disproportionate and inadequate.
\nWhat then should the Court do? If the Court’s option is
\nlimited only to two punishments, one a sentence of
\nimprisonment, for all intents and purposes, of not more
\nthan 14 years and the other death, the Court may feel
\ntempted and find itself nudged into endorsing the death
\npenalty. Such a course would indeed be disastrous. A far
\nmore just, reasonable and proper course would be to
\nexpand the options and to take over what, as a matter of
\nfact lawfully belongs to the Court, i.e., the vast
\nhiatus between 14 years’ imprisonment and death. It
\nneeds to be emphasised that the Court would take
\nrecourse to the expanded option primarily because in the
\nfacts   of  the   case,  the   sentence  of   14  years’
\nimprisonment would amount to no punishment at all.\u2016<\/p>\n
           In the present case also, in my considered<\/p>\n
view,    the    period     of   20     years        which   means      life<\/p>\n
imprisonment as per the provision of Section 333A Cr.<\/p>\n
P.C.    appears    inadequate        because        after      grant    of<\/p>\n
remission, etc.          which are without any legal basis as<\/p>\n
was noticed       by the Supreme Court in the above noted<\/p>\n
case, it may come down to             14 years and that will be<\/p>\n
simply a mockery as regards passing of sentence on the
\n                                                                         63<\/span><\/p>\n
         convicts     of   twin    murders   of   such   magnitude.    I,<\/p>\n
         therefore, direct that no remission shall be granted to<\/p>\n
         any of the four appellants, namely, Shankar Kanu alias<\/p>\n
         Shankar Sao, Manohar Kumar,Ashish Kumar Rai and              Anil<\/p>\n
         Uraon and they shall serve out 20 complete years of<\/p>\n
         sentence individually.\n<\/p>\n
                     70.          The reference is negatived with the<\/p>\n
         above modification in sentence. The three appeals also<\/p>\n
         stand dismissed for the reasons indicated above.<\/p>\n
\n\n\n\n                                       ( Dharnidhar Jha, J.)\n\nC.M.Prasad, J.-     I agree.\n\n                                        (C.M.Prsad,J.)\n\n Patna High Court.\n The 7th    April, 2010\n Kanth\/A.F.R.\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Ram Chandra Mahto vs State Of Bihar on 7 April, 2010 Author: C.M.Prasad 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-114221","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nRam Chandra Mahto vs State Of Bihar on 7 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-chandra-mahto-vs-state-of-bihar-on-7-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Chandra Mahto vs State Of Bihar on 7 April, 2010 - 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