{"id":68795,"date":"2008-09-03T00:00:00","date_gmt":"2008-09-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/neeraj-kumar-vs-the-state-of-bihar-on-3-september-2008"},"modified":"2014-09-27T21:00:33","modified_gmt":"2014-09-27T15:30:33","slug":"neeraj-kumar-vs-the-state-of-bihar-on-3-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/neeraj-kumar-vs-the-state-of-bihar-on-3-september-2008","title":{"rendered":"Neeraj Kumar vs The State Of Bihar on 3 September, 2008"},"content":{"rendered":"
Patna High Court<\/div>\n
Neeraj Kumar vs The State Of Bihar on 3 September, 2008<\/div>\n
Author: Shiva Kirti Singh<\/div>\n
                    DEATH REFERANCE No.7 OF 2007\n\n\n      STATE OF BIHAR-----------------------------(Appellant)\n                                 Versus\n      1.NEERAJ KUMAR\n      2.RAVI CHOR @ RAVI RAI\n      3.SANTOSH KUMAR @ LOHA\n      4.RAVINDRA KUMAR @ RAVINDRA KUMAR SINGH\n      5.GORAKH SINGH @ GORAKH NATH SINGH\n      6.SUNNY @ SUNNY DEOL ----------------------(Respondents)\n                               with\n                  CR. APP (DB) No.1085 oF 2007\n      RAVINDRA KUMAR @ RAVINDRA KUAMR SINGH--------(Appellant)\n                                 Versus\n      STATE OF BIHAR------------------------------(Respondents)\n                               with\n                  CR. APP (DB) No.1173 oF 2007\n      RAVI CHOR @ RAVI RAI--------------------------(Appellant)\n                                 Versus\n      STATE OF BIHAR------------------------------(Respondents)\n                               with\n                  CR. APP (DB) No.1194 oF 2007\n      NEERAJ KUMAR----------------------------------(Appellant)\n                                 Versus\n      THE STATE OF BIHAR--------------------------(Respondents)\n                               with\n                  CR. APP (DB) No.1216 oF 2007\n       1.GORAKH SINGH @ GORAKH NATH SINGH\n       2.SUNNY @ SUNNY DEOL-----------------------(Appellants)\n                                 Versus\n      STATE OF BIHAR------------------------------(Respondents)\n                               with\n                  CR. APP (DB) No.1275 oF 2007\n      SANTOSH @ LOHA--------------------------------(Appellant)\n                                 Versus\n      STATE OF BIHAR------------------------------(Respondents)\n\n\nReference made by Sri. Ram Pravesh Sharma, Additional Sessions\nJudge-1, Patna vide letter No.277 dated 20th of August, 2007\nand appeal against the judgment and order dated 7.8.2007 passed\nin Sessions Trial No.1602 of 2005.\n                            ----------\n<\/pre>\n
Counsel for the appellants (D.Ref. No.7\/07) with
\nCr.Appeal Nos.1216 and 1085 of 2007
\n        Sri Rana Pratap Singh, Sr.Advocate
\n        Sri Sandeep Kumar, Advocate
\n        Sri Sumant Singh, Advocate
\n        Sri Aruni Singh, Advocate
\n                                       2<\/span><\/p>\n
Counsel for the appellant (Cr.Appeal No.1194\/07)
\n       Mr. Kanhaiya Prasad Singh, Sr.Advocate
\n       Mr. Atal Bihari, Advocate
\n       Mr. Chandra Mohan Jha<\/p>\n
Counsel for the appellant (Cr.Appeal No.1173\/07)
\n       Mr. Rajeev Ranjan Sinha, Advocate
\n       Mr. Sushil Kumar, Advocate<\/p>\n
Counsel for the appellant (Cr.Appeal No.1275\/07)
\n       Mr. Raghu Bansh Singh, Sr.Advocate
\n       Mr. Satyapal Singh, Advocate<\/p>\n
Counsel for the State
\n       Mr. Ashwani Kumar Sinha, APP<\/p>\n
Counsel for the Informant (D.Reference No.7\/07)
\n       Mr. Shyam Bihari Prasad, Advocate
\n       Mr. Praomod Kumar Bhartiya, Advocate
\n       Mr. Aradhana Bhartiha, Advocate<\/p>\n
                              ———\n<\/p>\n
                           P R E S E N T<\/p>\n
                THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
\n                THE HON’BLE MR. JUSTICE MADHAVENDRA SARAN<\/p>\n
                           Shiva          Kirti   Singh,       J.      The    Death<\/p>\n
               Reference is in respect of the six accused who<\/p>\n
               have been tried together and convicted for the<\/p>\n
               offence under Sections 364(A),302,201 and 120(B)<\/p>\n
               read with Section 34 of the Indian Penal Code.<\/p>\n
               Accused    Gorakh          Singh   @   Gorakh    Nath   Singh    has<\/p>\n
               been sentenced to death for the offence under<\/p>\n
               Section 302 read with 120(B) of the Indian Penal<\/p>\n
               Code    whereas     the       remaining     five     accused    have
\n                    3<\/span><\/p>\n
been sentenced to death for the offence under<\/p>\n
Section   364(A)       of    the    Indian    Penal     Code.    No<\/p>\n
separate sentence has been awarded to them for<\/p>\n
other offences. Accused, Gorakh Singh @ Gorakh<\/p>\n
Nath Singh and his son, accused Sunny @ Sunny<\/p>\n
Deol have jointly preferred Cr.Appeal No.1216 of<\/p>\n
2007    whereas        the    remaining        four     accused,<\/p>\n
Ravindra Kumar @ Ravindra Kumar Singh, Ravi Chor<\/p>\n
@ Ravi Rai, Neeraj Kumar and Santosh Kumar @<\/p>\n
Loha   have    preferred      separate       Criminal    Appeals<\/p>\n
bearing No.1085,1173,1194 and 1275                 all of 2007<\/p>\n
respectively.      The       Death        Reference     and     the<\/p>\n
Criminal Appeals have been heard together and<\/p>\n
are being disposed of by this common judgment.<\/p>\n
          2.     The prosecution case, as disclosed<\/p>\n
in the written report (Ext-1) of Sudhir Kumar<\/p>\n
Sinha(PW-1) lodged on 22.9.2004 at 7:00 A.M. is<\/p>\n
to the following effect:-\n<\/p>\n
               Informant’s         son,    Sumit   Kumar      aged<\/p>\n
about 13 years, on 21.9.2004 went on a bicycle<\/p>\n
to his school, BMP High School, Phulwarisharif<\/p>\n
from his house. Sunny, son of Gorakh Singh met
\n                      4<\/span><\/p>\n
in the school at about 1:00 P.M. and told him<\/p>\n
that a cricket match is to be played for which a<\/p>\n
ball   will    be    given     by    Ravindra       Singh    son    of<\/p>\n
Ramnath     Singh        and    for     that        Sumit       should<\/p>\n
accompany      Sunny.      Sumit      left    the    school        with<\/p>\n
Sunny at about 1:30 P.M. He was kidnapped by<\/p>\n
Ravindra Singh and his gang with wrong motives.<\/p>\n
When Sumit did not return to his home till about<\/p>\n
4:00 P.M. then efforts were made to search him.<\/p>\n
In    the   night    at     8:00     P.M.     a    station        diary<\/p>\n
(sanha) was recorded. In the morning at about<\/p>\n
5:00    A.M.    accused,       Sunny     was       seen     and     was<\/p>\n
apprehended by the general public which informed<\/p>\n
the police. Sunny on being apprehended accepted<\/p>\n
his    guilt   and       disclosed     that       Sumit   had      been<\/p>\n
murdered. Thereafter, police recovered the dead<\/p>\n
body of Sumit from the side of railway line and<\/p>\n
his school bag was also recovered. The informant<\/p>\n
claimed     that    Sunny,     Ravindra       Singh       and     their<\/p>\n
gang men had kidnapped Sumit and with a view to<\/p>\n
destroy evidence and with bad intentions they<\/p>\n
committed murder of Sumit. On the dead body of
\n                    5<\/span><\/p>\n
Sumit   there   were      marks    of    injury.    Blood    had<\/p>\n
flown from nose and ears. There were burn marks<\/p>\n
caused by cigarette and acid. Ravindra Singh and<\/p>\n
Sunny reside in Aadarsh Nagar Colony where the<\/p>\n
informant resides.\n<\/p>\n
           3.   On the basis of the written report<\/p>\n
of Sudhir Kumar Sinha, Phulwarisharif P.S. Case<\/p>\n
No.649\/04 was instituted on 22.9.2004 at 11:15<\/p>\n
A.M. The FIR was sent to the court and seen by<\/p>\n
learned    Chief       Judicial    Magistrate,       Patna   on<\/p>\n
23.9.2004. The case was investigated by Anand<\/p>\n
Prakash Singh, Inspector of Police, then posted<\/p>\n
as Officer Incharge, (PW-18) and he was assisted<\/p>\n
by Sub Inspector, Arun Kumar (PW-16) who at the<\/p>\n
relevant   time    was    posted    as    Sub   Inspector     in<\/p>\n
Phulwarisharif         Police      Station.        PW-16     has<\/p>\n
admitted   that    in    the    evening    of   21.9.2004     at<\/p>\n
about 8:30 while he was on patrolling duty in<\/p>\n
the evening special mobile, he received wireless<\/p>\n
information about the missing of Sumit but no<\/p>\n
clues could be found in the evening. Next day,<\/p>\n
in the morning at about 7:00 A.M, on receiving
\n                          6<\/span><\/p>\n
information from father of Sumit (Sudhir Kumar<\/p>\n
Sinha,PW-1) that residents of Mohalla (colony)<\/p>\n
had   caught       Sunny       and    were    assaulting    him    and<\/p>\n
that Sunny had admitted the kidnapping of Sumit<\/p>\n
which had created anger amongst the people, he<\/p>\n
went with force and took Sunny in custody. After<\/p>\n
making       the        crowd        peaceful        he   began     to<\/p>\n
interrogate Sunny. He admitted his involvement<\/p>\n
and disclosed that with the help of his friends<\/p>\n
he had murdered Sumit. The confession (Ext-4)<\/p>\n
was   recorded          by   PW-16.     As    disclosed    by   Sunny<\/p>\n
Police      went    500      yards     east     of   Phulwarisharif<\/p>\n
station and from north of the railway line and<\/p>\n
about       10   yards         south    to     boundary    wall     of<\/p>\n
airport, from bushes the dead body of Sumit was<\/p>\n
recovered.         It    was    without       any    clothes.     There<\/p>\n
were plenty of bushes all around and ants had<\/p>\n
encroached all around the dead body. According<\/p>\n
to PW-16 he had recorded the confession of Sunny<\/p>\n
as    per    directions          of    Officer       In   charge    of<\/p>\n
Phulwarisharif P.S., PW-18 and participated in<\/p>\n
further investigation as per his orders.
\n                    7<\/span><\/p>\n
             4.    Allegedly,      Sunny    disclosed     the<\/p>\n
names   of    other     accused   persons   as   miscreants<\/p>\n
involved     in   the    occurrence.   PW-16     proved   the<\/p>\n
inquest report as Ext-5, the dead body chalan as<\/p>\n
Ext-6, seizure list in respect of school bag of<\/p>\n
Sumit as Ext-7, the confessional statement of<\/p>\n
another accused, Ravindra Kumar as Ext-8, the<\/p>\n
confessional statement of Santosh @ Loha as Ext-<\/p>\n
9, the confessional statement of Ravi Chor as<\/p>\n
Ext-10, the confessional statement of Neeraj as<\/p>\n
Ext-11,      station      diary    entry    No.693      dated<\/p>\n
21.9.2004 as Ext-12 and another station diary<\/p>\n
entry No.702 dated 22.9.2004 as Ext-13. He also<\/p>\n
identified the school bag(material exhibit 1\/8)<\/p>\n
as the bag recovered on the disclosure of Sunny.<\/p>\n
He also identified the books and copies kept in<\/p>\n
the bag.\n<\/p>\n
             5.    According to PW-18, the I.O. who<\/p>\n
at the relevant time was Officer In Charge of<\/p>\n
Phulwarisharif P.S., on 22.9.2004 he received a<\/p>\n
telephonic information from the informant that<\/p>\n
persons of the colony had apprehended Sunny on
\n                     8<\/span><\/p>\n
suspicion and Sunny had admitted that Sumit had<\/p>\n
been    kidnapped.       On        this     information      another<\/p>\n
station diary entry (sanha) No.702 was recorded.<\/p>\n
After taking Sunny in custody and recording his<\/p>\n
confession and after recovering the dead body on<\/p>\n
his    disclosure,           PW-18     prepared        the   inquest<\/p>\n
report and sent the dead body for autopsy to<\/p>\n
Patna Medical College Hospital. He also prepared<\/p>\n
a    seizure    list    in        respect      of   school    bag   of<\/p>\n
deceased,       Sumit    which        was      recovered     as     per<\/p>\n
disclosure       made        by     Sunny      from    inside       the<\/p>\n
boundary       of   airport.           He      recorded      further<\/p>\n
statement of the informant and the statement of<\/p>\n
other witnesses. He also got recorded statement<\/p>\n
of    Pramod    Kumar        (PW-10)      before      the    Judicial<\/p>\n
Magistrate under Section 164 Cr.P.C. He arrested<\/p>\n
the other accused persons who also gave their<\/p>\n
confessional statements as claimed by PW-16. He<\/p>\n
has    proved    his    signature         on    the    confessional<\/p>\n
statement of accused, Ravindra as Ext-8\/1 and<\/p>\n
his    signature        on        confessional        statement      of<\/p>\n
Santosh Kumar @ Loha as Ext-9\/1. According to
\n                          9<\/span><\/p>\n
him    Ravindra         had       admitted        his    guilt       and    had<\/p>\n
disclosed that the school dress of Sumit and a<\/p>\n
piece       of     tyre           strip     which        was     used       for<\/p>\n
strangulating Sumit had been thrown by him at a<\/p>\n
particular place amongst bushes inside boundary<\/p>\n
of    the    airport          at      about       150    yards       east   of<\/p>\n
western cabin of Phulwarisharif railway station<\/p>\n
and on his pointing out, the school uniform of<\/p>\n
Sumit- a blue full pant, a white shirt and a<\/p>\n
tyre    strip       about         1   and     \u00bd    cubits      length       was<\/p>\n
recovered         from       under     the    bushes.          The    seizure<\/p>\n
list for those articles was proved as Ext-14. He<\/p>\n
has     also        proved            his         signature          on     the<\/p>\n
confessional statement of accused Ravi Chor @<\/p>\n
Ravi Rai and confessional statement of accused<\/p>\n
Neeraj as Ext-10\/1 and 11\/1 respectively. After<\/p>\n
investigation                he       submitted          charge           sheet<\/p>\n
including supplementary charge sheet against the<\/p>\n
accused persons.\n<\/p>\n
             6.         After submission of charge sheet<\/p>\n
cognizance was taken by the learned Magistrate<\/p>\n
and    the       case    was       committed        to    the    court       of
\n                        10<\/span><\/p>\n
sessions. Charges were framed on 14.2.2006 to<\/p>\n
which the accused persons pleaded not guilty and<\/p>\n
hence they were put on trial. The defence of the<\/p>\n
accused persons, as appears from the trend of<\/p>\n
cross-examination             is        total       denial          of    their<\/p>\n
involvement       in        the    kidnapping         and        murder      of<\/p>\n
Sumit.\n<\/p>\n
            7.     The prosecution, in order to prove<\/p>\n
the    charges    examined          20       witnesses         in    all    and<\/p>\n
also     proved       several           documents         such       as     the<\/p>\n
written     report,           the       FIR,        the        confessional<\/p>\n
statement, the seizure list and the postmortem<\/p>\n
report     as     exhibits.             In    the     main          trial    no<\/p>\n
witnesses        were       examined           on    behalf          of     the<\/p>\n
defence.    Only        for       the    purpose          of    enquiry      in<\/p>\n
respect of claim of accused Sunny that he was a<\/p>\n
juvenile        and     which           plea        was        subsequently<\/p>\n
rejected up to the stage of this Court, some<\/p>\n
persons were examined as witnesses.<\/p>\n
            8.        As noticed earlier, PW-1, Sudhir<\/p>\n
Kumar Sinha is father of the deceased, Sumit and<\/p>\n
also the informant of this case who gave written
\n                    11<\/span><\/p>\n
report (Ext-1) to the police. PW-2, Om Prakash<\/p>\n
is a witness in respect of seizure of clothes<\/p>\n
and a tyre strip which according to him were<\/p>\n
recovered    on    the    disclosure   made    by    accused,<\/p>\n
Ravindra Singh. He has proved his signature on<\/p>\n
the   seizure      list    as   Ext-1\/9.      He    has     also<\/p>\n
identified    accused      Ravindra.   PW-3,       Anil    Kumar<\/p>\n
Sinha is brother of PW-1 and a witness of the<\/p>\n
facts stated by PW-1 that Sumit became traceless<\/p>\n
after going to school and during search the name<\/p>\n
of Sunny and Ravindra was heard and police was<\/p>\n
informed which took Sunny in custody and then he<\/p>\n
confessed his guilt and on his disclosure dead<\/p>\n
body was recovered from the place pointed out by<\/p>\n
him. He has supported the prosecution case and<\/p>\n
has proved the signature on inquest report as<\/p>\n
Ext-1\/10.    He    has    deposed   that   besides         Sunny<\/p>\n
Ravindra     was    also    apprehended       and     on     his<\/p>\n
disclosure full pant and shirt of Sumit which<\/p>\n
were tied with a tyre strip were also recovered<\/p>\n
for which the seizure list was prepared. He has<\/p>\n
proved his signature on the said seizure list as
\n                        12<\/span><\/p>\n
Ext-1\/11.\n<\/p>\n
            9.        PW-4, Manish Ranjan Sinha and PW-5,<\/p>\n
Sonu    @   Rajive          Ranjan    are     sons    of    PW-3    and<\/p>\n
cousins of the deceased. According to them also<\/p>\n
in course of search for Sumit on 21.9.2004 the<\/p>\n
names of Sunny and Ravindra surfaced. They went<\/p>\n
to their houses but their family members did not<\/p>\n
disclose     anything         and    they     were    not   found    at<\/p>\n
their houses. Next day in the early morning at<\/p>\n
about   5:00      A.M.       Sunny    was    apprehended      by    the<\/p>\n
residents        of    colony        and    on     their    query    he<\/p>\n
admitted     that       Sumit        had    been     kidnapped      for<\/p>\n
ransom. When police came and took him in custody<\/p>\n
and made further interrogation then he admitted<\/p>\n
the    entire     occurrence          and    also    disclosed      the<\/p>\n
names of his friends and accomplices as Loha,<\/p>\n
Neeraj,     Ravi       Chor    and    Ravindra       Singh.   On    the<\/p>\n
disclosure of Sunny police recovered the dead<\/p>\n
body as well as the school bag and books of<\/p>\n
deceased,        Sumit.        They        have     identified      the<\/p>\n
accused persons in dock. PW-6, Bittu Kumar is<\/p>\n
son of sister of PW-1, the informant. He has
\n                    13<\/span><\/p>\n
given the details that in course of search for<\/p>\n
Sumit he and his friends met a boy named, Ranjan<\/p>\n
who disclosed that Sunny had come to school gate<\/p>\n
during lunch time. In the colony Gopal Sharma<\/p>\n
(PW-15)   another       boy   who   was     friend   of   Sumit<\/p>\n
disclosed that Ravindra had promised to give a<\/p>\n
ball to Sumit and had called him from school<\/p>\n
through Sunny. They went to the house of Sunny<\/p>\n
where his father accused, Gorakh Nath Singh gave<\/p>\n
different excuses but in the meantime younger<\/p>\n
brother of Sunny came out from his room and on<\/p>\n
asking he also disclosed that during lunch time<\/p>\n
Sunny had come at the school gate. In view of<\/p>\n
conflicting versions of family members of Sunny<\/p>\n
a suspicion arose about them. During search this<\/p>\n
witness and his friends also went to the house<\/p>\n
of accused, Ravindra but his family members also<\/p>\n
made   different        excuses.    After    some    time   the<\/p>\n
police had also come to make interrogations. On<\/p>\n
22.9.2004 Sunny was seen in the colony and was<\/p>\n
apprehended by the residents of the colony on<\/p>\n
suspicion.    On         sustained        interrogation      he
\n                        14<\/span><\/p>\n
admitted that he and his friends had kidnapped<\/p>\n
Sumit.         Thereafter          PW-1         gave         telephonic<\/p>\n
information to the police which came and took<\/p>\n
Sunny     in     its        custody.      Thereafter,          he     has<\/p>\n
supported         the        prosecution            case      regarding<\/p>\n
confessions by Sunny and recovery of the dead<\/p>\n
body as well as school bag and books of deceased<\/p>\n
Sumit     as    per     disclosure         made      by      Sunny.   He<\/p>\n
identified the accused persons but wrongly named<\/p>\n
Ravi Chor as Loha and Loha as Ravi Chor.<\/p>\n
            10.         PW-7, Baidyanath Lal is a formal<\/p>\n
witness who has admitted his signature on the<\/p>\n
inquest report relating to dead body of Sumit.<\/p>\n
PW-8,     Girish       Prasad      Singh       is    another       formal<\/p>\n
witness    who     has       proved      his    signature       on    the<\/p>\n
seizure    list       relating      to    school       bag    of    Sumit<\/p>\n
containing his books and copies. He has deposed<\/p>\n
that the said recovery was made in his presence<\/p>\n
on the disclosure of accused Sunny.<\/p>\n
            11.       PW-9, Archana Sinha is wife of PW-<\/p>\n
1   and   mother        of   the    deceased.         Her     statement<\/p>\n
under Section 164 of the Cr.P.C. has been proved
\n                   15<\/span><\/p>\n
by her as Ext-2. She has in general supported<\/p>\n
the prosecution case regarding missing of her<\/p>\n
son, Sumit on 21.9.2004, Sunny being apprehended<\/p>\n
by people of the colony on 22.9.2004                    and his<\/p>\n
confession before the people that he with his<\/p>\n
friends had kidnapped Sumit for ransom, about<\/p>\n
arrival of the police on telephonic information<\/p>\n
and about confession by Sunny before the police<\/p>\n
in which he allegedly disclosed the names of the<\/p>\n
co-accused.      Besides     the   above     she    has    also<\/p>\n
deposed   that    in   the    evening   of    21.9.2004        at<\/p>\n
about 7:00 P.M., in course of search for Sumit<\/p>\n
and while going towards station she saw accused,<\/p>\n
Gorakh Singh talking to an unknown person. She<\/p>\n
heard Gorakh Singh saying that family members of<\/p>\n
the boy are searching for him desperately and it<\/p>\n
appears that the matter is turning serious and<\/p>\n
police may have been informed and his name may<\/p>\n
also come into open therefore, sweep the market<\/p>\n
clean.\n<\/p>\n
          12.      PW-10,     Pramod    Kumar      is   also    a<\/p>\n
young boy acquainted with the accused Ravindra
\n                      16<\/span><\/p>\n
and Sunny. He has deposed that his statement was<\/p>\n
recorded by the police and he had also given a<\/p>\n
statement     in   the         court    before      the    Magistrate<\/p>\n
disclosing that on 21.9.2004 at about 9:30 P.M.<\/p>\n
Ravindra and his friend Sunny came to him. He<\/p>\n
enquired as to what was the reason for their<\/p>\n
coming. Ravindra said that he had entered into<\/p>\n
arguments     with        his        father.      About    Sunny   he<\/p>\n
disclosed that he is a neighbour and they will<\/p>\n
go back in the morning. Both of them slept at<\/p>\n
his house during the night and in the morning<\/p>\n
when he woke up he found that both of them have<\/p>\n
gone away. The witness was thereafter declared<\/p>\n
hostile and on cross-examination by the public<\/p>\n
prosecutor he claimed that due to fear he had<\/p>\n
made the statement before the Magistrate that<\/p>\n
when he got up in the morning he found that<\/p>\n
Sunny   had    gone           away    and    on    query    Ravindra<\/p>\n
disclosed     that        a    boy     had   been    murdered.     He<\/p>\n
admitted that he never gave in writing to any<\/p>\n
court that he is under fear or he has been put<\/p>\n
under pressure by any body.                       He admitted his
\n                       17<\/span><\/p>\n
signature       on    his   statement        under       Section       164<\/p>\n
Cr.P.C. The said statement has been marked as<\/p>\n
Ext-3. He has also admitted that he had stated<\/p>\n
before the Magistrate all the facts stated in<\/p>\n
Ext-3 including the fact that in the morning he<\/p>\n
saw that Sunny had gone away and on his enquiry<\/p>\n
Ravindra       disclosed         that      he     and        Sunny    had<\/p>\n
committed       murder      of     the     boy    and        they     were<\/p>\n
therefore hiding themselves and on knowing this<\/p>\n
fact he had turned Ravindra Kumar out of his<\/p>\n
house. His attention was also drawn to the facts<\/p>\n
to the aforesaid effect disclosed by him to the<\/p>\n
police and he admitted his earlier statement in<\/p>\n
favour of the prosecution case.\n<\/p>\n
              13.    PW-11, Surendra Singh is a peon of<\/p>\n
BMP-5    High       School.      PW-12,     Ranjan       Raj,       PW-13,<\/p>\n
Prem Sagar and PW-14, Pintu Kumar are students.<\/p>\n
The    peon    has    simply       stated    that       on    21.9.2004<\/p>\n
during night hours PW-12 and some other boys had<\/p>\n
come    to     enquire      about      another      boy       and    this<\/p>\n
witness       told   them     to    come    next     day      at     about<\/p>\n
10:00     when       the      school       will     be       open.     On
\n                      18<\/span><\/p>\n
22.9.2004, he learnt that the missing boy had<\/p>\n
been killed and after five minutes of observing<\/p>\n
silence     the     school        was   closed.        The    three<\/p>\n
students have also deposed simply to the effect<\/p>\n
that they went to the school to enquire about<\/p>\n
the   missing      boy     and    thereafter      they       got   no<\/p>\n
knowledge about anything relating to the case.<\/p>\n
            14.      PW-15,       Gopalji    is   an    important<\/p>\n
witness who had, according to some of the PWs,<\/p>\n
disclosed     that        Sumit   was   called     by    Ravindra<\/p>\n
through Sunny for giving him cricket ball. But<\/p>\n
in    court       Gopalji     turned        hostile.     He        was<\/p>\n
definitely under pressure to conceal the truth<\/p>\n
because in paragraph-1 he has gone to the extent<\/p>\n
of saying that he does not know any boy of the<\/p>\n
name Sumit from his colony. But on being cross-<\/p>\n
examined by the prosecution, in para-3 he has<\/p>\n
deposed that by the side of his house is the<\/p>\n
house of one constable (sipahiji) and the next<\/p>\n
house is of Sumit. He has also disclosed that<\/p>\n
Sumit was also known by his alias name Lalan.<\/p>\n
He has denied the suggestion that he has deposed
\n                           19<\/span><\/p>\n
due to fear.\n<\/p>\n
                 15.       The     gist    of     evidence       of     Sub<\/p>\n
Inspector, Arun Kumar PW-16 and Inspector, Anand<\/p>\n
Prakash, PW-18 has already been noticed earlier.<\/p>\n
PW-18 is the investigating officer and PW-16 had<\/p>\n
assisted him in course of investigation. PW-17,<\/p>\n
Dr.Pankaj Kumar conducted autopsy on the dead<\/p>\n
body        of     deceased       Sumit    and       has     proved     the<\/p>\n
postmortem report as Ext-13. From his evidence<\/p>\n
it     is        clear    that     autopsy       was       conducted     on<\/p>\n
22.9.2004 and he found ligature mark all around<\/p>\n
neck which had indicated strangulation and cause<\/p>\n
of death was asphyxia. He also found abrasion on<\/p>\n
right arm and spots of ant bite marks all over<\/p>\n
the    body,        mostly     over      the   chest,       upper     limb,<\/p>\n
interior           abdominal        wall       and     lower        limbs.<\/p>\n
According to him those marks had been wrongly<\/p>\n
suspected           as    cigarette        marks.       According        to<\/p>\n
doctor           the     injury     on     the       dead     body      was<\/p>\n
sufficient to cause death in ordinary course of<\/p>\n
nature       and       death     had     taken    place       within     24<\/p>\n
hours.\n<\/p>\n
                      20<\/span><\/p>\n
            16.      PW-19, Satyendra Singh and PW-20,<\/p>\n
Raj Kishore Rai are the Judicial Magistrates,<\/p>\n
(First      Class)        who       have     deposed       that     they<\/p>\n
recorded statements of Pramod Kumar PW-10 and<\/p>\n
statement of Archana Sinha, PW-9 respectively,<\/p>\n
under    Section      164       of     the    Code       of     Criminal<\/p>\n
Procedure. Those statements have been marked as<\/p>\n
Ext-3\/1 and 2\/1 respectively. From the evidence<\/p>\n
of these Judicial Magistrates, it is clear that<\/p>\n
they     had   taken        precaution         by        warning       the<\/p>\n
witnesses and according to them the witnesses<\/p>\n
have given their statements voluntarily.<\/p>\n
            17.      Before discussing the submissions<\/p>\n
advanced on behalf of the accused persons so as<\/p>\n
to   find   out   whether           they   have     been       convicted<\/p>\n
rightly or not and whether it is a case fit for<\/p>\n
sentencing     them       to    death      penalty,       it    will    be<\/p>\n
useful to first take a bird’s eye view of the<\/p>\n
evidence       emerging             from     the     statement         of<\/p>\n
witnesses noticed above.\n<\/p>\n
            18.       It       is    admittedly      a    case     where<\/p>\n
there is no eyewitness and therefore no direct
\n                        21<\/span><\/p>\n
evidence         either     in   respect          of   kidnapping       of<\/p>\n
Sumit Kumar or his killing. The circumstantial<\/p>\n
evidence         on   record,        even    prior        to   detailed<\/p>\n
scrutiny and thorough examination, is only by<\/p>\n
way of-(i) Suspicion against the two accused,<\/p>\n
Sunny @ Sunny Deol and Ravindra Kumar @ Ravindra<\/p>\n
Kumar Singh in course of search and their being<\/p>\n
named in the FIR lodged by PW-1 on the next day<\/p>\n
of   the     occurrence.         (ii)       Sunny      was     allegedly<\/p>\n
apprehended by the residents of the colony and<\/p>\n
had confessed before them regarding kidnapping<\/p>\n
of Sumit. (iii) Confessions of accused persons<\/p>\n
except     Gorakh      Singh     @    Gorakh       Nath      Singh    made<\/p>\n
before       the      police     while       in        custody,      (iv)<\/p>\n
recovery of dead body and school bag of Sumit<\/p>\n
Kumar on the disclosure by accused, Sunny, (v)<\/p>\n
recovery of clothes of Sumit and a tyre strip of<\/p>\n
1 and \u00bd cubit length alleged to be weapon used<\/p>\n
for strangulation, recovered on the disclosure<\/p>\n
made    by    accused,       Ravindra        Kumar        Singh,      (vi)<\/p>\n
evidence of PWs indicating that during search<\/p>\n
Sunny      and     Ravindra      were       not    found       in    their
\n                     22<\/span><\/p>\n
houses and its corroboration by evidence of PW-<\/p>\n
10, Pramod Kumar although he has been declared<\/p>\n
hostile and (vii) evidence of Archana Sinha, PW-<\/p>\n
9   against   accused      Gorakh     Singh       @   Gorakh    Nath<\/p>\n
Singh that she over heard his conversation with<\/p>\n
an unknown person in the late evening hours of<\/p>\n
21.9.2004 which suggests that he was a party to<\/p>\n
the killing of the kidnapped boy at least as a<\/p>\n
conspirator.\n<\/p>\n
            19.     It requires no detailed scrutiny<\/p>\n
and   reasoning     to    come   to    the    conclusion        that<\/p>\n
confessions       attributed     to    the    accused      persons<\/p>\n
which were allegedly made by them to the police<\/p>\n
officials     while       they     were      in       custody     are<\/p>\n
inadmissible in evidence except to the extent<\/p>\n
permitted by Section 27 of the Indian Evidence<\/p>\n
Act. On that well established principle of law<\/p>\n
the confessions of other accused persons except<\/p>\n
that of accused Sunny @ Sunny Deol and Ravindra<\/p>\n
Kumar Singh @ Ravindra Kumar are inadmissible in<\/p>\n
evidence. Once those confessions are left out of<\/p>\n
consideration,       no    legal      evidence        is   left    on
\n                       23<\/span><\/p>\n
record in respect of accused Ravi Chor @ Ravi<\/p>\n
Rai, Neeraj Kumar and Santosh @ Loha.<\/p>\n
           20.        So far as remaining three accused<\/p>\n
are     concerned,         against     accused       Ravindra     and<\/p>\n
Sunny there are more than one circumstances but<\/p>\n
against    accused,         Gorakh     Singh     @    Gorakh      Nath<\/p>\n
Singh the only circumstance is the allegation by<\/p>\n
PW-9,     Archana        Sinha    that    she,        while      going<\/p>\n
towards station in course of search for Sumit<\/p>\n
saw accused, Gorakh Singh talking to an unknown<\/p>\n
person on 21.9.2004 at about 7:00 P.M. She has<\/p>\n
claimed that she heard Gorakh Singh saying that<\/p>\n
since     the     family      members      of        the   boy     are<\/p>\n
desperately searching for him (boy) and since<\/p>\n
the matter is turning serious and the police may<\/p>\n
have been informed and there was likelihood of<\/p>\n
his     name     being      disclosed,     hence       the    market<\/p>\n
should be swept clean. This kind of statement,<\/p>\n
according to prosecution was in relation to the<\/p>\n
missing        boy,   Sumit      and    cleaning       the    market<\/p>\n
impliedly meant killing Sumit. She has further<\/p>\n
claimed that these facts were conveyed by her to
\n                         24<\/span><\/p>\n
her husband (PW-1) at about 11:00 P.M. in the<\/p>\n
night. There is no witness to support such a<\/p>\n
claim of PW-9 and no other material to prove the<\/p>\n
charge     that         accused           Gorakh      Singh      was    in<\/p>\n
conspiracy with the other accused persons in the<\/p>\n
matter of kidnapping and killing of Sumit. The<\/p>\n
evidence of PW-1 shows that he has not supported<\/p>\n
the aforesaid claim of PW-9 that she disclosed<\/p>\n
to him the alleged utterances of Gorakh Singh<\/p>\n
while talking to any person. No such facts were<\/p>\n
disclosed     by    PW-1           even    in   the     Sanha,    Ext-13<\/p>\n
lodged on 22.9.2004 or in the first information<\/p>\n
report. Such uncorroborated claim of PW-9 which<\/p>\n
is   the   only     evidence          against         accused,    Gorakh<\/p>\n
Singh is clearly not sufficient to establish the<\/p>\n
charges against him.\n<\/p>\n
             21.              So    far    as    the    case     against<\/p>\n
accused Sunny & Ravindra Kumar is concerned, it<\/p>\n
has been noticed earlier that they are named in<\/p>\n
the FIR lodged soon after arrest and confession<\/p>\n
of   Sunny    and       recovery          of    the    dead    body     and<\/p>\n
school     bag     of        the    deceased       Sumit.      The     most
\n                   25<\/span><\/p>\n
important    circumstance      against     these      two<\/p>\n
appellants   is   their   alleged    disclosure    before<\/p>\n
the police which fact has been corroborated by<\/p>\n
witnesses and which resulted in recovery of dead<\/p>\n
body and school bag of deceased, Sumit on the<\/p>\n
disclosure   by    accused   Sunny   and   recovery    of<\/p>\n
clothes of Sumit and a tyre strip of 1 and \u00bd<\/p>\n
cubit   length    on   the   disclosure    by     accused<\/p>\n
Ravindra Kumar Singh. The other circumstance is<\/p>\n
the fact emerging from the evidence of several<\/p>\n
PWs indicating that during search for Sumit they<\/p>\n
went to the house of Sunny and Ravindra but they<\/p>\n
were not in their houses. It is also clear from<\/p>\n
the evidence of PW-10, Pramod Kumar although he<\/p>\n
has been declared hostile, that on 21.9.2004 at<\/p>\n
9:30 P.M. Ravindra and Sunny had gone to his<\/p>\n
house and they spent the night at his house. He<\/p>\n
has also admitted that he had given a statement<\/p>\n
under Section 164 Cr.P.C. before a Magistrate<\/p>\n
which is contained in Ext-3. According to that<\/p>\n
statement and as per statement of the I.O. PW-18<\/p>\n
in paragraph-2 of his deposition, this witness
\n                        26<\/span><\/p>\n
had disclosed that Ravindra and Sunny had come<\/p>\n
to his house on the relevant date at about 9:30<\/p>\n
P.M.    and     they        stayed      in    his     house.     In    the<\/p>\n
morning    he    found        that      Sunny      had    left   and    on<\/p>\n
enquiry Ravindra disclosed that he, Sunny and<\/p>\n
some others had killed the boy. The evidence of<\/p>\n
the Magistrate, PW-19 Satyendra Singh confirms<\/p>\n
that PW-10, Pramod Kumar had given his statement<\/p>\n
under     Section           164    Cr.P.C.         voluntarily.        The<\/p>\n
Magistrate has deposed that before recording the<\/p>\n
statement he had pointed out that it could be<\/p>\n
used also against him and he had also tested<\/p>\n
that     person        was        ready       to      make     statement<\/p>\n
voluntarily. The Magistrate has further deposed<\/p>\n
that    Pramod    Kumar           did   not    make      any   complaint<\/p>\n
before    him    that        he     was      making      the   statement<\/p>\n
under pressure of anyone. In paragraph-2 of his<\/p>\n
deposition PW-10 has admitted that he never gave<\/p>\n
in writing to the court that he was in fear of<\/p>\n
anyone or he had been pressurized by anyone. In<\/p>\n
paragraph-1 he has no doubt given an explanation<\/p>\n
that he had deposed before the Magistrate out of
\n                     27<\/span><\/p>\n
fear that when he got up in the morning he found<\/p>\n
that Sunny had gone away and on enquiry Ravindra<\/p>\n
disclosed       about    the       murder     of    a   boy.     Such<\/p>\n
explanation in respect of statement before the<\/p>\n
Magistrate does not appear to be convincing in<\/p>\n
view    of    evidence        of    the     Magistrate,        PW-19.<\/p>\n
Moreover, no such explanation has been given for<\/p>\n
his statement before the police about which he<\/p>\n
has admitted in paragraph-5 of his deposition<\/p>\n
that he stated before the police that on enquiry<\/p>\n
in the morning Ravindra disclosed that in the<\/p>\n
night he and Sunny had committed murder of a<\/p>\n
boy.\n<\/p>\n
             22.      Simply       because     PW-10      has    been\n\ndeclared      hostile     and       cross-examined         by     the\n\n<\/pre>\n
prosecution, his evidence in court does not lose<\/p>\n
its    value.      His   admission          about   his    earlier<\/p>\n
statement before the police in Paragraph-5 came<\/p>\n
out    in    course      of    cross-examination           by     the<\/p>\n
prosecution and it is supported by the evidence<\/p>\n
of the I.O., PW-18. This part of evidence of PW-<\/p>\n
10 is clearly reliable and can be used against
\n                        28<\/span><\/p>\n
the    appellant,           Ravindra.     Since    the    aforesaid<\/p>\n
part of evidence of PW-10 is found reliable it<\/p>\n
flows from the same that accused, Ravindra had<\/p>\n
made an extra judicial confession before PW-10<\/p>\n
that he and the co-accused, Sunny who has been<\/p>\n
tried together had committed murder of the boy<\/p>\n
in the night of 21.9.2004 and thereafter instead<\/p>\n
of remaining in their houses, obviously for the<\/p>\n
purpose       of    hiding     themselves,        they   spent    the<\/p>\n
night in the house of PW-10.\n<\/p>\n
              23.      The extra judicial confession of<\/p>\n
accused, Ravindra proved through PW-10 may also<\/p>\n
be    taken    into     consideration          against    Sunny    in<\/p>\n
view of Section 30 of the Evidence Act, although<\/p>\n
with great caution only for seeking assurance<\/p>\n
for   the     inference        which    may    arise     from    other<\/p>\n
circumstances           appearing         against        him.     The<\/p>\n
position       would        have   been    different,      had    the<\/p>\n
confession of Ravindra been exculpatory but that<\/p>\n
is not the situation here. From the evidence of<\/p>\n
PW-10     noticed       above      it     is    clear     that     the<\/p>\n
confession of Ravindar Kumar before PW-10, as
\n                          29<\/span><\/p>\n
corroborated             by    Ext-3,         the     statement        under<\/p>\n
Section       164        Cr.P.C.        and     by     the    I.O.     PW-18<\/p>\n
disclosing the earlier statement of PW-10 made<\/p>\n
before him, was voluntary and inculpatory.<\/p>\n
              24.              Learned          counsel         for      the\n\nappellants,         Ravindra        and        Sunny     has    submitted\n\nthat    the     prosecution             evidence       that    Sunny    was\n\n<\/pre>\n
apprehended by persons of the colony and before<\/p>\n
them he confessed that he with his friends had<\/p>\n
kidnapped       Sumit         is   not    reliable           because    such<\/p>\n
people of the colony have not been named and the<\/p>\n
admission of the I.O. that there were injuries<\/p>\n
on the person of Sunny for which he was sent for<\/p>\n
medical       examination               also        shows      that     such<\/p>\n
confession could at best be under coercion and<\/p>\n
threat. The aforesaid submission appears to have<\/p>\n
merit     and       in     that     view        of     the    matter     the<\/p>\n
aforesaid       confession          of        Sunny     allegedly       made<\/p>\n
before    the       people         of     the        colony    cannot    be<\/p>\n
accepted as a voluntary confession and hence it<\/p>\n
is inadmissible in view of Section 24 of the<\/p>\n
Evidence Act.\n<\/p>\n
                      30<\/span><\/p>\n
             25.      It was next contended on behalf<\/p>\n
of the aforesaid two accused persons that from<\/p>\n
admission of the I.O. made in paragraph-29 of<\/p>\n
his deposition it is clear that the dead body of<\/p>\n
Sumit   was    recovered      from     a   place    within     the<\/p>\n
jurisdiction        of     Gardanibagh       Police     Station.<\/p>\n
Further, on the basis of suggestion to the I.O.<\/p>\n
that the dead body was recovered by police of<\/p>\n
that police station and that in her statement<\/p>\n
under Section 164 Cr.P.C. PW-9, Archana Sinha,<\/p>\n
the mother of the deceased indicated the time of<\/p>\n
recovery of the dead body as 7:30 or 8:00 in the<\/p>\n
morning,     it    was    submitted    that    there    is    some<\/p>\n
discrepancy regarding the time of recovery of<\/p>\n
the dead body and since it was recovered from a<\/p>\n
place under different police station hence the<\/p>\n
prosecution case of recovery of the dead body on<\/p>\n
the basis of arrest and confession of accused,<\/p>\n
Sunny   is    doubtful      and   such      claim     should    be<\/p>\n
rejected as such. However, on a careful perusal<\/p>\n
of   the     FIR,    the     inquest       report     which    was<\/p>\n
prepared      on    22.9.2004     at   8:30    A.M.     and    the
\n                      31<\/span><\/p>\n
evidence of witnesses it is found that there is<\/p>\n
no    material     contradiction        and    the     prosecution<\/p>\n
case cannot be doubted that in the morning of<\/p>\n
22.9.2004 Sunny was taken into custody by the<\/p>\n
police and on his disclosure made to the police<\/p>\n
in presence of witnesses, the dead body and the<\/p>\n
school bag of deceased, Sumit was recovered by<\/p>\n
the police.\n<\/p>\n
             26.    It was further submitted on behalf<\/p>\n
of the aforesaid two accused that prosecution<\/p>\n
has not proved that the I.O. obtained a written<\/p>\n
permission for entering into premises of airport<\/p>\n
for     recovery         of   school     bag     and        articles<\/p>\n
belonging to the deceased, Sumit. No doubt, the<\/p>\n
I.O.     has    admitted      that      he    did     not    obtain<\/p>\n
permission from the authorities of the airport<\/p>\n
in course of investigation but this fact alone<\/p>\n
is     not   sufficient       to    raise      doubt     regarding<\/p>\n
recovery of school bag of deceased Sumit along<\/p>\n
with    books      and    copies     which     have     been    made<\/p>\n
material       exhibits,      and      also    in     respect     of<\/p>\n
recovery of clothes of Sumit along with a tyre
\n                        32<\/span><\/p>\n
strip.     Both       the     recoveries         are    supported          by<\/p>\n
seizure      lists          which        have    been      proved          by<\/p>\n
witnesses. The conduct of the I.O. in gaining<\/p>\n
entry      into        the       airport        without      obtaining<\/p>\n
permission of the competent authority, at least<\/p>\n
in      writing,           can      have        several      plausible<\/p>\n
explanations including reluctance of the Guards<\/p>\n
at   the    airport         to     interfere      with     the   police<\/p>\n
investigation. On this account alone the factum<\/p>\n
of   recovery         of    incriminating         articles       on    the<\/p>\n
basis of disclosure made by accused Sunny and<\/p>\n
Ravindra cannot be disbelieved.\n<\/p>\n
            27.                  Learned        counsel      for       the\n\nappellants,           Sunny        and    Ravindra       referred          to\n\nseveral     judgments            including       the      judgment         of\n\nPrivy      Council         reported        in    AIR     1947    P.C.67\n\n<\/pre>\n
(Kottaya Vs.Emperor) to submit that only those<\/p>\n
words given out by the accused to the police are<\/p>\n
admissible in evidence under Section 27 of the<\/p>\n
Evidence        Act        which     directly      and      distinctly<\/p>\n
relate     to   the        relevant      facts    discovered          as   a<\/p>\n
consequence of such disclosure. The other part
\n                       33<\/span><\/p>\n
of statement of the accused before the police<\/p>\n
which do not relate to the discovery of relevant<\/p>\n
facts are inadmissible.\n<\/p>\n
              28.     The law relating to Section 27 of<\/p>\n
the     Evidence       Act        is   no   longer        under       any<\/p>\n
confusion. Through catena of judgments including<\/p>\n
a recent judgment of the Supreme Court in the<\/p>\n
case    of    Anil    Vs.    Administration          of    Daman      and<\/p>\n
Diu, Daman, reported in (2008)1 SCC (Cri) 72 it<\/p>\n
is well recognized that Section 27 is by way of<\/p>\n
exception to Section 25 and 26 of the Evidence<\/p>\n
Act    and    it    makes    admissible       only     so      much    of<\/p>\n
information         given     by       an   accused       in    police<\/p>\n
custody       as    relates        distinctly    to       the     facts<\/p>\n
thereby discovered. It is also now settled that<\/p>\n
the    fact    discovered          embraces     the       place      from<\/p>\n
which    the       object    is    produced     as    well      as    the<\/p>\n
knowledge of the accused and not only to the<\/p>\n
material objects found at the place disclosed by<\/p>\n
the accused.\n<\/p>\n
              29.    While keeping the aforesaid law in<\/p>\n
mind and also the admitted legal position that
\n                     34<\/span><\/p>\n
the fact of disclosure leading to recovery of<\/p>\n
incriminating facts alone is not sufficient for<\/p>\n
conviction as held by a bench of this Court in a<\/p>\n
recent judgment in the case of State of Bihar<\/p>\n
Vs. Diwakar Mehta, 2008(3) PLJR 118 to which one<\/p>\n
of us (Shiva Kirti Singh,J.) was a party, we<\/p>\n
have analyzed all the facts and circumstances<\/p>\n
and found that against the FIR named appellants,<\/p>\n
Sunny   and    Ravindra      Kumar     the   prosecution        has<\/p>\n
succeeded        in         proving          the         following<\/p>\n
circumstances:-\n<\/p>\n
            (i) In the night of the occurrence i.e.<\/p>\n
21.9.2004 in course of search of the deceased,<\/p>\n
Sumit, they were not at their houses.<\/p>\n
            (ii) Both the said accused had taken<\/p>\n
unusual step of staying in that night at the<\/p>\n
house of PW-10.\n<\/p>\n
            (iii)        Accused Ravindra had made extra<\/p>\n
judicial      confession      before     PW-10       which      was<\/p>\n
inculpatory in nature to the effect that he and<\/p>\n
Sunny   had    committed      murder    of    a    boy    in   that<\/p>\n
night before taking shelter in the house of PW-
\n                        35<\/span><\/p>\n
10.<\/p>\n
            (iv)            While    in     custody       of    police<\/p>\n
accused, Sunny made disclosures which lead to<\/p>\n
discovery       of     dead       body    and        school    bag    of<\/p>\n
deceased, Sumit found concealed amongst bushes.<\/p>\n
            (v)        While in police custody accused,<\/p>\n
Ravindra made disclosures leading to recovery of<\/p>\n
clothes    of     deceased,         Sumit    along      with   a     tyre<\/p>\n
strip of 1 and \u00bd cubit, alleged to be used for<\/p>\n
strangulating the deceased.\n<\/p>\n
            30.        The aforesaid facts coupled with<\/p>\n
lack of any explanation by the said two accused<\/p>\n
as to how they could know the facts disclosed by<\/p>\n
them    leading         to       recovery       of     incriminating<\/p>\n
materials,        in        my    view      are      sufficient        to<\/p>\n
establish the charge under Section 302 read with<\/p>\n
34 of the Indian Penal Code against appellants<\/p>\n
Sunny @ Sunny Deol and Ravindra Kumar @ Ravindra<\/p>\n
Kumar     Singh        beyond       any     reasonable         doubts.<\/p>\n
However, the charge of kidnapping for ransom or<\/p>\n
conspiracy has not been proved beyond reasonable<\/p>\n
doubts.\n<\/p>\n
                   36<\/span><\/p>\n
           31.    On behalf of the appellant Sunny,<\/p>\n
argument was advanced that his plea of being a<\/p>\n
juvenile    on   the   date    of   occurrence    has   been<\/p>\n
wrongly disallowed by the trial court although<\/p>\n
he had examined some witnesses including himself<\/p>\n
in course of enquiry for that purpose. It has<\/p>\n
been submitted that on account of Section-7A of<\/p>\n
the   Juvenile   Justice      (Care   and   Protection   of<\/p>\n
Children) Act, 2000 which has been introduced<\/p>\n
through    Amendment    Act,   2006   w.e.f.     22.8.2006,<\/p>\n
the claim of juvenility can be raised before any<\/p>\n
court at ant stage and after determining such<\/p>\n
claim in terms of provisions contained in Act of<\/p>\n
2000 and the rules made thereunder, even in the<\/p>\n
case of a juvenile who has ceased to be so, the<\/p>\n
sentence passed against a person who is found to<\/p>\n
be a juvenile on the date of commission of the<\/p>\n
offence must be declared to have no effect.<\/p>\n
           32.    The aforesaid plea suffers from a<\/p>\n
factual fallacy. No doubt, under law as amended<\/p>\n
through Section-7A, now it has been recognized<\/p>\n
through the statute that a claim of juvenility
\n                    37<\/span><\/p>\n
may be raised before any court at any stage but<\/p>\n
that does not mean that such a claim which has<\/p>\n
been    raised     before    the    competent          court      and<\/p>\n
decided against the accused on facts, can again<\/p>\n
be   raised    although      the    earlier      finding          that<\/p>\n
appellant, Sunny Deol was not a juvenile under<\/p>\n
the Act of 2000 has already attained finality on<\/p>\n
account of dismissal of his criminal revision<\/p>\n
bearing   No.471\/07       dismissed        by   this    Court       on<\/p>\n
16.5.2007.    Learned       counsel      for    the    State       has<\/p>\n
rightly placed reliance upon the judgment of the<\/p>\n
Supreme Court in the case of Sidharth Vs.State<\/p>\n
of Bihar, (2006)1 SCC 175 in paragraph-9 whereof<\/p>\n
the Supreme Court has held that since at the<\/p>\n
earlier   stage     the     accused      had    failed       in    his<\/p>\n
challenge     to   the    finding     that      he    was    not     a<\/p>\n
juvenile,     again      before    the     Supreme      Court       he<\/p>\n
could   not   challenge      that     finding        because       the<\/p>\n
decision on that issue had become conclusive and<\/p>\n
final. Hence, in the facts of the case, this<\/p>\n
Court   has   no    option    but     to    hold      that     since<\/p>\n
appellant, Sunny could not succeed even before
\n                        38<\/span><\/p>\n
this    Court     in    challenging        the     finding         of   the<\/p>\n
trial    court     that     he     was     not    a    juvenile         and<\/p>\n
therefore       not     entitled      to      protection           of   the<\/p>\n
Juvenile Justice Act of 2000, such plea cannot<\/p>\n
be permitted to be raised by the appellant again<\/p>\n
before this Court in the present proceeding.<\/p>\n
            33.             Coming       to      the    question         of<\/p>\n
sentence, I have considered all the facts and<\/p>\n
circumstances and I have no hesitation in coming<\/p>\n
to the conclusion that the offence in question<\/p>\n
cannot    be      treated        as      rarest        of        rare   and<\/p>\n
therefore award of death penalty to appellant,<\/p>\n
Sunny @ Sunny Deol and appellant, Ravindra Kumar<\/p>\n
@ Ravindra Kumar Singh is found to be not in<\/p>\n
accordance        with      law.      In      view          of     earlier<\/p>\n
discussions and findings these two accused are<\/p>\n
found guilty of the charge under Section 302\/34<\/p>\n
of the IPC and their conviction for such charge<\/p>\n
is affirmed. As discussed above it is not a rare<\/p>\n
case deserving award to extreme penalty of death<\/p>\n
and hence the award of death penalty to these<\/p>\n
two appellants is not found appropriate. For the
\n                      39<\/span><\/p>\n
charge found approved against them, the ends of<\/p>\n
justice would be satisfied by awarding them life<\/p>\n
imprisonment.\n<\/p>\n
             34.        As a result of discussions and<\/p>\n
findings given earlier the other four accused<\/p>\n
persons, namely, Ravi Chor @ Ravi Rai, Neeraj<\/p>\n
Kumar,      Gorakh   Singh      @    Gorakh     Nath   Singh     and<\/p>\n
Santosh @ Loha are acquitted of all the charges.<\/p>\n
Accordingly, the death reference against them is<\/p>\n
answered      in     negative.         Their     appeals      stand<\/p>\n
allowed. The appeals of appellant, Sunny @ Sunny<\/p>\n
Deol and Ravindra Kumar @ Ravindra Kumar Singh<\/p>\n
are allowed in part but dismissed in respect of<\/p>\n
their    conviction       under      Section     302   read     with<\/p>\n
Section      34    of     the       Indian     Penal    Code.       As<\/p>\n
discussed, the death penalty awarded to them is<\/p>\n
commuted      to     life       imprisonment.          The    death<\/p>\n
reference in respect of them is also answered in<\/p>\n
negative.          As a result of their acquittal of<\/p>\n
all   the    charges,     the       appellants,    Ravi      Chor   @<\/p>\n
Ravi Rai, Neeraj Kumar, Gorakh Singh @ Gorakh<\/p>\n
Nath singh and Santosh @ Loha are directed to be
\n                   40<\/span><\/p>\n
released from custody forthwith if they are not<\/p>\n
required in connection with any other case.<\/p>\n
                                  (Shiva Kirti Singh,J.)<\/p>\n
(Madhavendra Saran, J)<\/p>\n
                                  (Madhavendra Saran,J.)<\/p>\n
Patna High Court
\nDated the 3rd of September,2008
\nAFR\/PERWEZ\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Neeraj Kumar vs The State Of Bihar on 3 September, 2008 Author: Shiva Kirti Singh DEATH REFERANCE No.7 OF 2007 STATE OF BIHAR—————————–(Appellant) Versus 1.NEERAJ KUMAR 2.RAVI CHOR @ RAVI RAI 3.SANTOSH KUMAR @ LOHA 4.RAVINDRA KUMAR @ RAVINDRA KUMAR SINGH 5.GORAKH SINGH @ GORAKH NATH SINGH 6.SUNNY @ SUNNY DEOL ———————-(Respondents) […]<\/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-68795","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nNeeraj Kumar vs The State Of Bihar on 3 September, 2008 - 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\/neeraj-kumar-vs-the-state-of-bihar-on-3-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Neeraj Kumar vs The State Of Bihar on 3 September, 2008 - 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