Prasad and Rekha Kumari, JJ.@mdashSuchita Devi and Satya Narayan Jha besides their sons Krishna Kant Jha, Mohan Jha, Awadhesh Kumar Jha, Mithilesh Jha and Lalan Jha were put on trial for commission of offence u/s 302 read with Sections 34 and 201 of the Indian Penal Code. Additional Sessions Judge, Fast Track Court No. III, Vaishali at Hajipur by judgment and order dated 9th of March, 2005 and 10th of March, 2005 held them guilty on all the counts and sentenced Awadhesh Kumar Jha to death for offence u/s 302/34 of the Indian Penal Code but no separate sentence was awarded to him on other count. Others found guilty of offence u/s 302/34 of the Indian Penal Code have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 3,000/- each, in default to suffer simple imprisonment for six months. All of them have further been sentenced to undergo rigorous imprisonment of three years for offence u/s 201 of the Indian Penal Code and fine of Rs. 1,0007- each, in default to suffer simple imprisonment for one year. All the sentences have been directed to run concurrently. The learned Judge had submitted the proceeding for confirmation of the death sentence of Awadhesh Kumar Jha, which has been registered as Death Reference No. 3 of 2005. Awadhesh Kumar Jha. aggrieved by his conviction and sentence has also preferred appeal which has been registered as Criminal Appeal (DB) 420 of 2005. Rest of the convicts together have preferred separate appeal, which has been registered as Criminal Appeal (DB) No. 314 of 2005. All of them shall hereinafter be referred as the ''appellants''.
2. Both the appeals and the death reference have been heard together and are being disposed off by this common judgment.
3. Prosecution commenced on the basis of the fardbeyan given by Bhuwneshwar Jha (P.W. 5) on 7.4.2001 at 12.00 noon before the Sub-Inspector of Police of Jandaha Police Station. According to the Informant on 7.4.2001 appellant Lallan Kumar Jha had taken away his three years old son Nikesh Kumar on the pretext of playing and when he did not return made search of him. In course thereof he reached at 11 hours near the Ikri field by the side of the river alongwith his co-villagers Moti Lal Sah (P.W 3) Rama Kant Jha (P.W. 2), Guru Dayal Jha (P.W. 4) and few other co-villagers ana saw all the appellants concealing something under the earth. When they reached there, saw in the ditch finger of a child protruding from the earth. On removal of the earth, the dead body of Nikesh Kumar having his neck slit from the back was found. Appellants started fleeing away from there but appellants Mohan Jha, Suchita Devi and Awadhesh Kumar Jha who were armed with Garasa were apprehended. All other appellants fled away from the place of occurrence.
4. The motive of the occurrence, according to the First Information Report is a dispute between the appellants and the informant over the land belonging to the informant. On the basis of the aforesaid information, Jandaha Police Station Case No. 49 of 2001 was registered under Sections 302 and 201/34 of the Indian Penal Code against all the appellants, besides Satya Narayan Jha who died during the pendency of the trial.
5. Police after usual investigation submitted charge-sheet against all the appellants, besides aforesaid Satya Narayan Jha and ultimately all of them were committed to the Court of Sessions, where they were charged for committing murder by intentionally causing the death of Nikesh Kumar in furtherance of their common intention, punishable u/s 302/34 of the Indian Penal Code. They were further charged for causing disappearance of evidence of murder in order to screen themselves from legal punishment punishable u/s 201 of the Indian Penal Code,. Appellants pleaded not guilty and claimed to be tried.
6. Prosecution in order to bring home the charge had altogether examined eight witnesses. P.W. 1 Vivek Kumar Jha, P.W. 2 Rama Kant Jha, P.W. 4 Guru Dayal Jha and P.W. 5 Bhuwneshwar Jha are although not witnesses to the actual murder of Nikesh Kumar but they have been examined by the prosecution to prove circumstance which points to the guilt of the appellants. P.W. 3 Moti Lal Sah a witness, who had examined to prove the role played by appellant Lallan Kumar Jha. P.W. 6 H.A. Usmani at the relevant time was the Assistant Sub-Inspector of Police and the Investigating Officer of the case. He had submitted charge-sheet against the appellants. P.W. 7 Dr. Anand Prasad Sinha is a Medical Officer, who had conducted the post mortem examination on the dead body of Nikesh Kumar. P.W. 8 Basuki Paswan is another Police Officer, who had recorded the formal First Information Report, affected seizure of the garasa, prepared inquest report and thereafter handed over the charge of investigation to P.W. 6 H.A. Usmani.
7. Appellants denied to have committed any offence and their plea is of false implication. From the trend of cross-examination, their defence further seem to be that appellant Awadhesh Kumar Jha had illicit relationship with the daughter of P.W. 2 Rama Kant Jha and therefore, he got the crime committed and implicated him and all his family members. Defence of appellant Krishna Kant Jha further is that at the time of occurrence he had gone outside the village. Appellant Awadhesh Kumar Jha, in his statement u/s 313 of the Code of Criminal Procedure had admitted his guilt and stated that he had murdered Nikesh Kumar. However no defence witness has been examined.
8. P.W.1 Vivek Kumar Jha had stated in his evidence that at about 11 to 12 O'' clock on 7.4.2001 while he was at his darwaza informant Bhuwneshwar Jha (P.W. 5), Guru Dayal Jha (P.W. 4), Rama Kant Jha (P.W. 2) and few other villagers came and informant inquired about whereabout of his three years old son Nikesh Kumar. He disclosed that he had seen Lallan Kumar Jha taking away the boy. He alongwith the aforesaid persons left the place and after travelling some distance they met Moti Lal Sah (P.W. 3) in the way. Informant also made inquiry from him about his son and he also stated that he had seen appellant Lallan Kumar Jha taking away the boy through the orchard. When they were little behind a Guava tree, belonging to Satya Narayan Jha (since deceased) they saw him as also all the appellants hiding something hurriedly under the earth. On seeing them, appellants started fleeing away. He saw a spade in the hand of appellants Mithilesh Jha and garasa in the hand of appellant Awadhesh Kumar Jha. According to this witness, on chase the three appellants, namely, Suchita Devi, Mohan Jha and Awadhesh Kumar Jha were apprehended.
9. When this witness reached the place, where the appellants were concealing something under earth, the finger of the child was seen and on removal of the earth, the dead body of Nikesh Kumar with his half neck cut from the back side was found. The dead body was removed from the ditch. On arrival of the police after sometime, appellant Suchita Devi, Mohan Jha and Awadhesh Kumar Jha were handed over. According to this witness, motive of the occurrence was the protest made by the informant for selling of wine and Ganja from the Gumti on the informant''s land by Awadhesh Kumar Jha.
10. In the cross-examination he denied the suggestion that appellant Krishna Kant Jha and Mohan Jha were not in the village. In paragraph 23 of the cross-examination he had stated that his statement was recorded after one month of the occurrence, whereas in paragraph 35 of the cross-examination he denied the suggestion that the police had recorded the statement after one month of the occurrence. He claimed that it was recorded sometime after the occurrence. He has also stated in the cross-examination that Awadhesh Kumar Jha was arrested by the police with Garasa in his hand.
11. According to P.W. 2 Rama Kant Jha, while he was at his residence at 11-12 0'' clock on the date of occurrence,informant came there and inquired about his son. He replied that he had not seen him. He alongwith the informant went in search of his son and in course thereof, went to the Darwaja of P.W. 1 Vivek Kumar Jha. On inquiry by the informant, Vivek Kumar Jha replied that he had seen Lallan Kumar Jha taking away his son Nikesh Kumar. Thereafter he alongwith the informant and other persons proceeded further and met P.W. 3 Moti Lal Sah. Moti Lal Sah inquired as to what they are searching, whereupon informant replied that his son Nikesh Kumar is missing. Moti Lal Sah (P.W. 3) told that he had seen appellant Lallan Kumar Jha taking Nikesh Kumar towards the orchard.
12. This witness alongwith other co-villagers proceeded towards the orchard and saw all the appellants including Satya Narayan Jha (since deceased) burying something hastily. Seeing the witnesses, the appellants tried to flee away but they could succeed in apprehending appellants Suchita Devi, Mohan Jha and Awadhesh Kumar Jha. According to this witness, Awadhesh Kumar Jha was armed with garasa, whereas Mithilesh Kumar Jha was carrying a spade. When this witness alongwith other persons reached the place where the appellants were burying something, noticed finger of child over the earth and when it was removed, the dead body of the child, whose neck slit from the back side was found.
13. On arrival of the police, seized garasa was recovered from the possession of Awadhesh Kumar Jha and a seizure list was prepared in his presence. He is a witness to the seizure list (Ext.1), According to him, the Sub-Inspector of Police recorded the statement of the informant there and he is a witness to the said statement. According to this witness, the Sub-Inspector of Police, prepared the inquest report of the deceased and he is witness to the inquest report (Ext. 3) also.
14. In paragraph 11 of the cross-examination, he had stated that his statement was recorded by the Police after one month and eight days of the occurrence and all other witnesses have given their statements after him. He had reiterated in the cross-examination that appellants Suchita Devi, Mohan Jha and Awadhesh Kumar Jha were handed over to the police at the place of occurrence. In the cross-examination he had further stated that an altercation had taken place between appellant Awadhesh Kumar Jha and the informant on the issue of shop 5-7 days before the occurrence. He has admitted that Satya Narayan Jha (since deceased) was his uncle (Phupa). He had denied the suggestion that there is dispute between Satya Narayan Jha and him over a piece of land and on account thereof had given the false evidence. He had reiterated that Goran the daughter of Rama Kant Jha (P.W. 2) died after three years of the occurrence.
15. P.W. 3 Moti Lal Sah has been examined by the prosecution to prove a part of the occurrence. According to him on the date of occurrence at about 10-11 A.M. while he was at his Darwaja, the informant Vivek Kumar Jha (P.W. 1) and Rama Kant Jha (P.W. 2) and many other persons came to inquire the whereabout the informant''s son. He informed that he had seen appellant Lallan Kumar Jha taking away the informant''s son and thereafter he went to the market and returned in the night. In the cross-examination he had admitted that he had seen appellant Lallan Kumar Jha taking the child at about 10 A.M. but had not stated the fact to anyone before the informant came at his darwaja. He denied the suggestion that appellant Krishna Kant Jha was not in the village at the time of occurrence. He had admitted that he had not seen anybody committing the murder of the child.
16. P.W. 4 Guru Dayal Jha had stated in his evidence that while he was at the Tea stall, at about 11-12 O''clock on the date of occurrence, informant came there searching for his son Nikesh Kumar. He alongwith the informant, Rama Kant Jha (P.W. 2) and other co-villagers went to the house of P.W. 1 Vivek Kumar Jha in search of the boy. On inquiry by the informant Vivek Kumar Jha told that he had seen Lallan Kumar Jha taking the deceased with him. Thereafter all of them went to the house of Moti Lal Sah (P.W. 3) in search of the boy and he also stated that he had seen appellant Lallan Kumar Jha taking the deceased towards the orchard. Thereafter all of them proceeded towards the orchard and from a little distance saw all the appellants besides Satya Narayan Jha concealing the dead body of the child beneath the earth. When they reached there, appellants started fleeing away from the place of occurrence. Four of them succeeded in fleeing away but the appellants Awadhesh Kumar Jha, Suchita Devi and Mohan Jha were apprehended. According to him. appellant Awadhesh Kumar Jha was armed with Garasa and Mithilesh Kumar Jha was seen fleeing away with spade.
17. According to this witness, they saw child''s finger under the earth and on its removal the dead body of the informant''s son, whose neck slit from the back side, was found.
18. On arrival of the police, the inquest report of the deceased was pro-pared and he is a witness to that. In the cross-examination he had stated that the Sub-Inspector of Police had seized blood stained garasa. According to him. appellant Awadhesh Kumar Jha had installed a gumti over the land of the informant and he had shifted the same 3-4 months prior to the occurrence. He had admitted that nobody had seen the accused persons committing the murder of Nikesh Kumar He had also denied the suggestion that appellant Awadhesh Kumar Jha had illicit relationship with Goran the daughter of Rama Kant Jha and on that account implicated appellant Awadhesh Kumar Jha and all his family members.
19. P.W. 5 Bhuwaneshwar Jha is the informant of the case. According to him, while he was at his house saw appellant Lallan Kumar Jha taking away his son Nikesh Kumar towards the Ikri Guava orchard on the pretext of playing. When he did not return, he went out to search him and in that process went to the house of his co-villagers Rama Kant Jha (P.W. 2) and others and also at the Tea stall of Guru Dayal Jha (P.W. 4). They also went to the house of P.W.1 Vivek Kumar Jha and on inquiry he told them that he had seen appellant Lallan Kumar Jha taking the deceased with him. Thereafter all of them went to the house of Satya Narayan Jha (since deceased) in search of the child, where his daughter-in-law told them that the child was not there and all of them are in the orchard.
20. Informant alongwith P.W. 1 Vivek Kumar Jha, P.W. 3 Rama Kant Jha, P.W. 4 Guru Dayal Jha besides other persons went in search of the child and arrived at the house of P.W. 3 Moti Lal Sah and on inquiry he replied that he had seen appellant taking the deceased with him.
21. Thereafter all of them went to Guava Ikri orchard and from some distance saw" all the appellants and Satya Narayan Jha (deceased) covering something by earth. Seeing them all the appellants started fleeing away but on chase three appellants namely, Mohan Jha, Awadhesh Kumar Jha and Suchita Jha were arrested and rest of the appellants managed to flee away. Awadhesh Kumar Jha was armed with garasa and from amongst the appellants who had fled away, appellant Mithilesh Kumar Jha was holding spade.
22. According to him, the motive of occurrence was installation of gumti by appellant Awadhesh Kumar Jha and sale of wine and Ganja from there. According to this witness, the Sub-Inspector of Police came to the village, where his statement was recorded. He had proved his signature on the fardbeyan. In the cross examination he had admitted that besides P.W. 1 Vivek Kumar Jha, P.W. 2 Ramakani Jha and P.W. 4 Gurudayal Jha, a large number of persons had gone to the orchard in search of the child. According to him, appellant Awadhesh Kumar Jha used to sell wine and ganja from the gumti in his land and the appellants became hostile when he removed the gumti. In paragraph 35 of the cross-examination he had admitted that none of the co-villagers informed him that he had seen other accused persons, except Lallan Kumar Jha going towards the orchard.
23. P.W. 6 H.A.Usmani, at the relevant time, was Sub-Inspector of Police of Jandaha Police Station and according to him on 7.4.2001 he received the fardbeyan recorded by Officer-lncharge of the Police Station and took up investigation of the case. He had inspected the place of occurrence and in freshly dug ditch found dead body of child with half of his neck slit. He had also stated that three appellants were arrested there. According to him, he recorded the statement of the witnesses and finding the allegation to be true submitted charge-sheet in the case. He had admitted that he had not seized anything from the place of occurrence but he stated that garasa was seized by another Sub-Inspector of Police.
24. P.W. 7 Dr. Anand Prasad Sinha, at the relevant time was posted as Civil Assistant Surgeon at Sadar Hospital, Hajipur. On 8.4.2001 at 6.30 A.M. he conducted the post mortem examination on the dead body of Nikesh Kumar and found incised wound in the back of neck of the size 4" x 3" x 3". In his opinion death had occurred due to shock and haemorrhage, as a result of the injury found on his person, which was sufficient in ordinary course of nature to cause death. In his opinion injury was caused by a sharp weapon. He had proved the injury report (Ext. 4).
25. P.W. 8 Basuki Paswan is another Police Officer who had produced the material exhibit garasa from the Malkhana.
26. P.W. 9 Uttam Singh, at the relevant time was the Officer-lncharge of the Police Station and according to him on hearing information that a child has been killed in the village, he went there and found the dead body of the child in the Ikri field of Satya Narain Jha, where the villagers had apprehend the three assailants. Awadhesh Kumar Jha was holding a garasa. He recorded the fardbeyan (Ext. 6) of the informant, seized garasa from Awadhesh Kumar Jha and prepared the seizure list. He had also prepared inquest report of the dead body of the child ( Ext. 4). Later on, he handed over the investigation to the Assistant Sub-Inspector of Police.
27. The Court below on appraisal of evidence, came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and accordingly convicted and sentenced the appellants as above.
28. Mr. Vinod Kumar, appears on behalf of the appellants in Criminal Appeal No. 314 of 2005 whereas Mr. Dinesh Prasad Verma (Amicus Curiae) appears on behalf of appellant Awadhesh Kumar Jha in Criminal Appeal No. 420 of 2005 and the death reference.
29. Mr. Verma, submits that according to the prosecution witnesses itself, a large number of persons had gone alongwith the informant in search of the son but only few of the witnesses have been examined. He submits that failure on part of the prosecution to examine all the persons who had accompanied the informant in search of his son makes the prosecution case doubtful.
30. We do not find any substance in this submission of Mr. Verma. It is well settled that it is not the quantity of evidence but the quality which is material. Here P.W. 1 Vivek Kumar Jha, P.W. 2 Rama Kant Jha, P.W. 4 Guru Dayal Jha and P.W. 5 Bhuwneshwar Kumar Jha have been examined to support the case of the prosecution. Their evidence is not fit to be rejected only on the ground that other witnesses who had accompanied the informant have not been examined.
31. Mr. Verma, then submits that the case of the prosecution is founded on circumstantial evidence and chain of circumstances do not point out conclusively towards the guilt of appellant Awadhesh Kumar Jha. He points out that none had seen this appellant committing the crime.
32. Mr. Verma is not right when he submits that the entire prosecution case is dependent on the circumstantial evidence. Occurrence is in two parts; one in respect of the death of the son of the informant Nikesh Kumar and the other the concealment of his dead body for screening the offence. So far as the story of murder is concerned, there is no eyewitness to the occurrence but there are circumstances which point out conclusively towards the guilt of the appellants Lallan Kumar Jha and Awadhesh Kumar Jha. P.W. 1 Vivek Kumar Jha had stated that he had seen Lallan Kumar Jha taking away the deceased. Later on, his dead body was found in the ditch. P.W. 2 Rama Kant Jha had also stated that appellant Awadhesh Kumar Jha was arrested while fleeing away from the bed of the river where the dead body was burried. P.W. 2 Rama Kant Jha had also stated that when he alongwith the informant and others were going in search of the child P.W. 1 Vivek Kumar Jha and P.W. 3 Moti Lal Sah and P.W. 5 Bhuwneshwar Jha had stated that they had seen appellant Lallan Kumar Jha taking away the deceased towards the orchard. He had also stated about the seizure of garasa from appellant Awadhesh Kumar Jha. P.W. 3 Moti Lal Sah had also stated that he had seen appellant Lallan Kumar Jha taking away the deceased in presence of P.W. 1 Vivek Kumar Jha, P.W. 2 Rama Kant Jha and P.W. 5 Bhuwneshwar Jha.
33. P.W. 4 Guru Dayal Jha had stated that P.W. 1 Vivek Kumar Jha and P.W. 3 Moti Lal Sah had stated in his presence that they had seen appellant Lallan Kumar Jha taking the deceased towards the orchard. He had also stated about the arrest of appellant Awadhesh Kumar Jha after chase from the place the dead body was burried alongwith the garasa.
34. Similar is the statement of P.W. 5 Bhuwneshwar Jha, the informant of the case. According to him, his son Nikesh Kumar (deceased) was taken by the appellant Lallan Kumar Jha to the Erki Guava orchard on the pretext of playing. When his son did not return, he went in his search and gone to the residence of P.W. 2 Rama Kant Jha & P.W. 4 Guru Dayal Jha & thereafter to the house of P.W. 1 Vivek Kumar Jha. According to him Vivek Kumar Jha informed that he had seen appellant Lallan Kumar Jha taking away the deceased. He is also a witness to the arrest of appellant Awadhesh Kumar Jha. Thus there is consistent evidence that appellant Lallan Kumar Jha was last seen with the deceased and after few hours his dead body was found. Appellant Awadhesh Kumar Jha was apprehended from near the place where the dead body was burried with garasa. He had motive to commit the crime, as the informant had removed his gumti standing over his land from where he used to sell Ganja and Liquor. Further in his statement u/s 313 of the Code of Criminal Procedure he had admitted his guilt. Taking into account the aforesaid, we are of the opinion that the prosecution has been able to prove its case beyond all reasonable doubt against the aforesaid appellants so far as the offence u/s 302/34 of the Indian Penal Code is concerned.
35. As regards the other appellants, the evidence on record show that they were seen burying the dead body and seeing the witness they tried to flee away. All of them had been identified by a large number of witnesses and further three of the appellant, namely, Suchita Devi, Mohan Jha and Awadhesh Kumar Jha were ar-rested at the spot. Neck of Nikesh Kumar was cut from behind. All the appellants have seen burying the dead body. From that there is no difficulty in coming to the conclusion that all the appellants knew that Nikesh Kumar was murdered and they were causing disappearance of the evi-dence with intention to screen them from legal punishment. We are of the opinion that the prosecution has been able to prove its case beyond all reasonable doubt against all the appellants for offence u/s 201/34 of the Indian Penal Code.
36. Mr. Verma, submits that case in hand does not come within the category of rarest of the rare cases so as to call for the extreme penalty of death. We had the occasion to consider this question in the case of
"True it is that the crime has been committed in a heinous and brutal manner but there is nothing on record to show that the two condemned shall be menace to the society threatening its peaceful existence and continuous threat to the society, if come out of incar ceration. There is no reason to believe that they cannot be reformed and they are likely to continue criminal activities. Having given my most anxious consideration and viewed from this angle, the case in hand does not come within the category of rarest of the rare cases, calling for extreme penalty of death."
37. A Division Bench of this Court had also the occasion to consider this question in the case of
"The authorities on the question lead us to conclude that death sentence can be inflicted in rarest of the rare case and the number of persons killed is not decisive. Crime being brutal and heinous itself do not turn the scale towards death sentence. If these factors are present the Court has to see as to whether the accused is a menace to the society and continue to be so, threatening the peaceful and harmonious co-existence of society. The Court has to further enquire and believe that the accused condemned cannot be reformed or rehabilitated and shall continue with the criminal acts. In this way a balance-sheet is to be prepared while considering the imposition of extreme penalty of death of aggravating and mitigating circumstances and just balance is to be struck. So long the death sentence is provided in the statute and when collective conscience of the community is petrified, the holders of judicial power will not stammer, de hors their personal opinion and inflict death penalty."
38. Bearing in mind the principles aforesaid, when we proceed to examine the facts of the case we are of the opinion that the case does not fall within the category of rarest of rare cases. There is nothing on record to show that this appellant cannot be reformed and shall continue with his criminal activity.
39. Accordingly, his conviction u/s 302/34 of the Indian Penal Code is maintained but the sentence is commuted to that of life imprisonment.
40. While assailing the conviction of the appellants Krishna Kant Jha, Suchita Devi, Mohan Jha and Mithilesh Kumar Jha, Mr. Vinod Kumar, contends that the evidence on record do not conclusively prove that these appellants had in anyway participated in causing the death of the deceased Nikesh Kumar.
41. Mr. Lala Kailash Bihari Prasad, however contends that these appellants were seen fleeing away from the place of occurrence immediately after the incident and in fact appellants Suchita Devi and Mohan Jha were in fact chased and arrested from near the place of occurrence. He submits that from the aforesaid, there is no escape from the conclusion that these appellants also shared the common intention with others.
42. We find substance in the submission of Mr. Kumar. There is no chain which connects these appellants with the offence of murder. It is not the case of the prosecution that the deceased was murdered at the place, where the appellants were seen burying the dead body. The offence of murder had taken place earlier and thereafter these appellants attempted to burry the deceased to screen the offence and to avoid legal punishment. Accordingly, we are of the opinion that the conviction of the appellants Krishna Kant Jha, Suchita Devi, Mohan Jha and Mithilesh Kumar Jha u/s 302/34 of the Indian Penal Code is not fit to be sustained.
43. In the result, the reference is rejected and the appeal preferred by Awadhesh Kumar Jha is dismissed with the modification of sentence as aforesaid. Criminal Appeal No. 314 of 2005 is partly allowed. Conviction and sentence of Lallan Kumar Jha under Sections 302/34 and 201 of the Indian Penal Code is maintained. Appeal preferred by appellants Krishna Kant Jha, Suchita Jha, Mohan Jha and Mithilesh Kumar Jha is partly allowed and their conviction and sentence u/s 302/34 of the Indian Penal Code is set aside. However, their conviction and sentence u/s 201 of the Indian Penal Code is maintained.
