STATE OF BIHAR Vs. SANJAY TIWARY

JUDGEMENT

(1.) INSTANT Death Reference and Cr. Appeal arise out of judgment, order dated 6,13.09.2010 passed by 1st Additional Sessions Judge, Kaimur at Bhabhua in Sessions Trial No. 89/32(A) of 2005, whereunder sole appellant has been convicted for the offences under Sections 347, 380, 452, 460, 302/34 and 120B of the Penal Code and sentenced to undergo R.I. for 3, 7, 7 years and life sentence for the offences under Sections 347, 380, 452 and 460 of the Penal Code respectively with direction that the sentences shall run concurrently. For the offence under Section 302/34 read with Section 120B of the Penal Code appellant has been awarded death sentence.

(2.) PROSECUTION case, as set out in the fardbeyan (Ext. 4) of informant Babban Lal (P.W. 3) recorded on 19.10.2003 at 8.30 P.M. is that he is serving as a clerk for the last 2 1/2 years at N.K. Agrawal Petrol Pump, Bhabhua and for such service is being paid salary of Rs. 1200/ per month. Every day after closure of the petrol pump the informant use to come to the house of the petrol pump owner with the days collection for handing over the amount and then use to return to the petrol pump. At times he even slept in the house of the owner but generally slept at the petrol pump itself. Besides the informant Sunil Agrawal (P.W. 20), resident of Chitrakut, Ram Sewak Yadav, Birendra Bind, both of village Saitha, Sri Kant Mishra (P.W. 5) Vidya Nand Chaturvedi (not examined), Raju Chaurasiya of Bhabhua (not examined), Himatu Ansari (not examined), Sanjay Jaiswal (not examined), Sunil Pandey of Dhodhi Sonhan (not examined) and driver Raju Ansari (P.W. 8) of Bhabhua also served at the petrol pump. On 19.10.2003 after closing the petrol pump at about 7.15 P.M. the informant along with Sunil Agrawal left with the cash for the house of the owner on scooter and reached there within 10 minutes at 7.25 P.M., found the main gate of the residential campus closed which is generally open at this time. Informant and Sunil Agrawal then loudly called to open the gate. After ten minutes and much effort Banshi Bind who served as a servant in the house opened the gate. Informant asked him as to why did he take so much of time to open the gate then he replied that the miscreants had come and had tied his hands and legs. Meanwhile informant came in the forecourt near the temple, saw north of the temple Arun Sharma (P.W. 21) security guard of his master hands and legs tied, eyes folded with cloth. Nearby another servant Pancham Lal was also sitting quietly. On being asked informant was informed by domestic servants, bodyguard that criminals had come and after tying them entered the house. Informant and Sunil Agrawal when tried to untie the hands of the bodyguard Arun Sharma, he asked them to first inform the Superintendent of Police about the occurrence and only after his arrival untie his hands. The informant, Sunil Agrawal (P.W. 20) thereafter straightway came to the Police Station and again returned to the place of occurrence with the police force and the officers. The police force untied the hands of the bodyguard, thereafter informant and others entered the house and saw in the eastern room situate west of the courtyard dead body of Nalinikant Agrawal on a white fiber chair. His throat was slit with a sharp weapon and there was ink smeared on his right thumb. There was copious blood also found on the floor of the room, besides two knives, one on the chair near the thigh of the deceased and the other on the ground was also found. In room situate east of the courtyard facing west the dead body of mistress of the house Mithilesh Kumari was found lying on the belly on the floor. Her throat was also slit by a sharp edged weapon. Fasuli used for vegetable cutting was found close to her neck. In both the rooms as also in the other rooms belongings of the deceased were found scattered. All the almiraha and godrej were found open. The back door exit of the house was also found open as one flank of the said door was extracted though lock and the chain was intact. The gun belonging to the deceased was found kept with the support of the door. Domestic servant Pancham was earlier cutting vegetables sitting on a Chowki near temple but was called by the deceased by ringing the call bell and asked to switch on the tube light. While Pancham was about to switch on the tube light three miscreants entered the house, one of them shut his eyes. Another miscreant pointed country made pistol towards him and the 3rd caught and brought him near the temple, tied his hands and blind folded him. Out of the three miscreants one was fair, light built without moustache, other was dark and as they were in hurry the face of the third miscreants could not be seen. All were clad in full pant and shirt and had partly muffled their face. After 10 15 minutes one of the miscreants came near the temple and asked domestic servant Pancham as to where is the safe, Pancham replied that he is not aware about the safe, he was assaulted by foot, the miscreant again went inside and again came out little later and asked where are the keys of the rear door and the keys kept on the window are of which place. Pancham thereafter replied that the keys found on the window may be the key which they are looking for. The miscreant again went inside and came out within a minute or two and dragged Pancham inside asking him to open the lock put on the rear door but he could not unlock the rear door as his hands were tied, the miscreants thereafter forcibly extracted the flank of the door and all the miscreants went out from the rear side of the house leaving Pancham in the lane connecting the rear door with direction to run towards the temple. Pancham thereafter came to the temple, the miscreants escaped from the rear door. Once the miscreants went away, Pancham untied the rope from the hands of Banshi Bind and thereafter Banshi Bind opened the main gate and thereafter the informant and others came inside and learnt the details of the occurrence after arrival of the police. Pancham also informed them that in all the miscreants were 8 10 in number. Informant further claimed that the belongings kept in the rooms were disturbed by the miscreants. Informant also stated that about the loss of belongings, i.e. valuables, cash and document he can make statement only after arrival of the daughters and the son in law(s) of the two deceased. Informant, however, claimed that as ink used for taking thumb impression having been found on the thumb of the deceased, it appears that the miscreants have taken his thumb impression for creating fraudulent document as son of the deceased Dharmendra Agrawal was killed three years earlier and four daughters are married to Bharatji Bhushan, resident of 177 Bombay Bazar, Meerut, Alabhya Narayan Agrawal, Kora Kagaj, Main Road, Begusarai, Sri Gupta, A7/2, Annapurna Nagar Colony, Varanasi and Ravi Agrawal, 23 Hingan Katra, Jhanshi and they are well settled in their matrimonial home. According to the informant, present occurrence has been effected only with a view to grab the properties of the deceased. The informant also claimed that miscreants having entered the house for the purpose of creating forged document obtained thumb impression of the master and thereafter killed both the husband and wife by slitting their neck with sharp cutting weapon.

(3.) INVESTIGATING Officer during investigation recorded the confessional statement of Birendra Bind, Banshi Bind and Ram Sewak Yadav. On the basis of the confessional statement of Ram Sewak Yadav the house of the appellant was searched on 29.10.2003 and one pass book of the appellant of State Bank of India, ADB Bhabhua bearing No. 5184 was seized vide seizure list Exhibit 1/18 wherefrom it appeared that a sum of Rs. 3,00,000/ (three lacs) was deposited in his account on 27.10.2003. In the light of the investigation conducted, Investigating Officer (P.W. 18) submitted charge sheet, three supplementary charge sheets against 10 accused persons including the appellant. In the light of the charge sheet, supplementary charge sheet, cognizance was taken against the 10 accused persons and after supply of the police papers the case was committed to the court of sessions.