STATE OF BIHAR Vs. MANOJ KUMAR SINGH WITH

JUDGEMENT

(1.) DEATH Reference Case No. 4 of 2007 and Cr. Appeal Nos. 836, 887, 960 and 1006 of 2007 arise out of judgment and order dated 6/7.6.2007, passed by Ist Additional Sessions Judge, Aurangabad in Sessions Trial No. 302 of 2006/76 of 2006, whereunder each of the two appellants Manoj Kumar Singh and Yogendra Singh has been convicted for the offence under Sections 364 - A, 302, 201 and 120 -B of the Penal Code and sentenced under Sections 364 -A and 302 of the Penal Code to death with direction to be hanged by neck till they are dead. No separate sentence, however, has been awarded under Sections 120 -B and 201 of the Penal Code. Appellants Raju Kumar Gupta and Raghubir Singh have been convicted under Sections 364 -A/34, 302/34, 201/34 and 120 -B/34 of the Penal Code and each has been awarded imprisonment for life under Sections 364. -A/34, 302/34 of the Penal Code and seven year 'srigorous imprisonment under Sections 201/34 and 120 -B/34 of the Penal Code respectively with direction that the sentences shall run concurrently.

(2.) Death Reference Case No. 12 of 2008 and Cr Appeal No. 782 of 2008 arise out of judgment and Order dated 25/28.6.2008, passed by Additional Sessions Judge, Fast Track Court No. IV, Aurangabad in Sessions Trial Nos. (1) 319 of 2007/126 of 2007, (2) 351 of 2007/186 of 2007 and (3) 99 of 2007/194 of 2007, whereunder appellant Kameshwar Singh, Upendra Singh and Anuj Singh has been convicted under Sections 364 -A/34, 302/34, 201/34 and 120 -B/34 of the Penal Code and each sentenced under Sections 364 -A and 302 read with Sections 201/34 and 120. -B/34 to death with direction to be hanged by neck till he is dead. As the aforesaid two judgments dated 6/7.6.2007 and 25/28.6.2008 have been rendered in connection with Barun P.S. Case No. 165 of 2005, G.R. No.2330 of 2005 and the witnesses examined in the two trials are common, the references and the appeals have been heard together and are being disposed of by this common judgment. Prosecution case, as set out in the First Information Report of the aforesaid Barun P.S. Case No. 165. of 2005, Exhibit -5 is that, Uday Kumar Singh, the informant on 30.12.2005 at about 10.30 a.m. had gone to Barun Hydel to attend his duty where he received a call on his mobile from his home that his elder son Tej Pratap, aged about six years had gone to the neighbouring shop to purchase snack and has not returned for over an hour. The informant came back home and inquired in the household and searched his son in the nighbourhood and the nearby grocery shop.. When the son could not be traced, Barun Police Station was also informed that his elder son has gone missing. Having informed Barun Police Station the informant also asked, his men to search his son and also informed his relatives telephonically that his son has gone missing. When informant 'sson could not be traced until late in the evening, the informant apprehended that his son has been kidnapped by unknown miscreants and he lodged written report, Exhibit -3 dated 30.12.2005 at 22 hours giving description of victim 'sappearance and attire. On the basis of written report, First Information Report, Exhibit -5 alleging offence under Section 364 of the Penal Code was drawn against unknown accused. Sri Yogendra Paswan, Officer -in - Charge. Barun Police Station himself took up the investigation of the case and examined under Section 161, Cr PC on 30.12.2005 itself the parents and other family member of the victim including the grocery shop owner Rekha Devi where Tej Pratap had gone to purchase snack and they all supported the fact that Tej Pratap had gone to the nearby grocery shop of Rekha Devi, known as Shubham Kirana Store, for purchasing snack (Takatak) on 30.12.2005 at about 10.30 a.m. and having purchased the snack while coming back he became traceless and could not be found. The Superintendent of Police Aurangabad, having learnt of the kidnapping of Tej Pratap, formed two special task Force for recovery of the victim boy under his order bearing Memo No. 2767 dated 31.12.2005 with specific direction to Sub - Inspector of Police Sunil Kumar Singh to obtain print out of the concerned telephone numbers. Six days after the occurrence on 5.1.2006 a telephonic information was received by cousin of the informant Chandan Kumar on his telephone No. 244103 that Tej Pratap is with the caller and the caller is calling from Banaras. Another call was received on 9.1.2006 in which ransom amount of Rs. 60 lacs was demanded for releasing the victim boy. Information about the calls received was given to the Investigating Officer who made arrangement for installing Caller I.D. Another call was received on telephone No. 244103 of Chandan Kumar on 12.1.2006 at 10.25 a.m. from Mobile No. 9431615667. in which the caller asked the receiver of the call to call the father of the victim. Later, two more calls were received on the same telephone No. 244103 on 12.1.2006 at 10.48 and 11.37 a.m. from Mobile No. 9431135489 in which instructions were given to the father of the victim to arrange the ransom amount for securing the release of the victim boy. Further ransom calls were received on 14.1.2006 at 12 p.m., 14.42 p.m. and 16.55 p.m. from Mobile No. 9430055575 on Mobile No. 9431223950. Thereafter, another ransom call was received on 15.1.2006 from Telephone No. 95184252696 and again on 20.1.2006 at 11.35 a.m. and 5.19 p.m. from Telephone Nos. 06184 -252840 and 06184 -252499. The Investigating Officer in order to identify the ransom callers obtained the print out of the telephone numbers through Sub - Inspector Sunil Kumar Singh under guidance of superior police officer. On the basis of the print outs subscriber of Mobile Nos. 9431615667. and 9431135489 were identified as Radhe Shyam Gupta and Arvind Kumar Singh, both of Pandu Bazar, Jharkhand. Having identified the subscribers, the Investigating Officer examined both Radhe Shyam Gupta and Arvind Kumar Singh for fixing the identity of the callers who had made the ransom call on 12.1.2006 at 10.25 a.m., 10.48 a.m. and 11.37 a.m. on telephone No. 244103. Arvind Kumar Singh stated before the Investigating Officer that he has exchanged his SIM Card with Raju Kumar Gupta of Pandu Bazar who is using the same for operating the telephone booth with number 9431135489 and the telephone booth is managed by his nephew Mukesh Kumar Gupta. He further stated that Raju Kumar Gupta and his nephew Mukesh Kumar Gupta may be in a position to identify the caller who made call on telephone No. 244103. from the booth on 12.1.2006 at 10.48 and 11.37 a.m. The Investigating Officer having identified the telephone booth requested A.S.I. Ram Baleshwar Ram, Officer -in -charge of Kutumba Police Station and Dinesh Jha, ASI Vishrampur Police Station to seize the SIM Card and router machine of the two telephone booths having number 9431615667 and 9431135489, which was seized on 24.1.2006 at 14.30 p.m. and 15.30 p.m. in presence of two seizure -list witnesses, namely, Munna Kumar Singh and Sanjay Kumar Gupta, as is evident from the seizure -list dated 24.1.2006, Exhibits 6 and 6/1. The Investigating Officer thereafter interrogated both Radhe Shyam Gupta and Raju Kumar Gupta. Radhe Shyam Gupta stated that he is not in a position to identify the caller who made call from his both on 12.1.2006 at 10.25 a.m. on telephone No. 244103. Raju Kumar Gupta, however, confirmed the fact that he has exchanged his SIM card with Arvind Kumar Singh and his telephone booth with number 9431135489 is being managed by his nephew Mukesh Kumar Gupta who may be in a position to fix the identity of those who made call from the booth on telephone No. 244103 on 12.1.2006 at 10.48 and 11.37 a.m. On the basis of the statement of Raju Kumar Gupta, Mukesh Kumar Gupta was also examined by the Investigating Officer on 29.1.2006 who stated that on 12.1.2006 Upendra Singh, Manoj Singh and Yogendra Singh along with few others came to his booth looking for his uncle Raju Kumar Gupta and along with him went inside the residential house wherefrom they made the two calls on telephone No. 244103. at 10.48 and 11.37 a.m. While they were making calls from inside the house, they had snapped the telephone connection of the booth. On the basis of the statement of Mukesh Kumar Gupta, Raju Kumar Gupta, Upendra Singh and Manoj Singh were arrested on 30.1.2006 and Upendra Singh interrogated who recorded his confessional statement on 31.1.2006 at 14 hours at Barun Police Station. From the confessional statement of Upendra Singh it appears that Yogendra Singh and Kameshwar Singh had come to his house 20 -21 days earlier along with two unknown persons and in presence of Manoj Singh had conveyed that they have kidnapped the son of a big man of Barun, Aurangabad, the boy is in custody of their men and if they (Upendra Singh and Manoj Kumar Singh) helped them in making the ransom call, they may earn 3 -4 lacs. Next morning also Yogendra Singh and Kameshwar Singh came to him along with the two unknown persons, whereafter Upendra Singh, Manoj Singh, Yogendra Singh, Kameshwar Singh and the two unknown persons went to the booth of Raju Kumar Gupta and met his nephew Mukesh Kumar Gupta and asked him to call his uncle Raju Kumar Gupta and along with Raju Kumar Gupta went inside the house and made the ransom calls demanding Rs. 60 lacks but the father of the victim did not agree to pay more than 10 lac rupees as also insisted that he should be allowed to talk to his son. After about half an hour another call was made giving out the description of the victim together with his dress but his father insisted that he must first speak to the victim. Upendra Singh further clarified in his confessional statement that before making the two calls from the booth of Raju Kumar Gupta one call was made from the booth of Radhe Shyam Gupta asking the recipient of the call to make available the father of the victim within five minutes to receive another call. It further appears from the confessional statement that after the seizure of the telephone booth of Arvind Kumar Singh and Raju Kumar Gupta on 24.1.2006 Upendra Singh became apprehensive of his arrest and in order to avoid the same met Yogendra Singh along with Manoj Singh and instructed him to kill the victim boy and dispose of his dead body. Two days earlier Yogendra Singh informed Upendra Singh that with the help of local liner the victim boy has been killed, his dead body confined in a gunny bag has been thrown in a dry well near a temple located in a field situate on the western side of the road in village Barain. Having recorded the confessional statement of Upendra Singh the Investigating Officer proceeded to locate the dry well near a temple on the western side of the road in village Barain and recovered the dead body from the dry well of Ram Eqbal Singh on 31.1.2006 at 18.30 hours in presence of Chandan Kumar, cousin of informant and Jag Narayan Choudhary, as is evident from the Inquest Report, Exhibit - 8 and Seizure -List - Exhibit - 8/1. Having recovered the dead body of the victim boy the Investigating Officer sent the same for post -mortem examination which was conducted by a Medical Board and the report of the Medical Board is dated 31.1.2006, Exhibit -3, wherefrom it appears that the boy was strangulated to death as there was finger -tip pressure mark on left side of his wind pipe in front of neck leading to cardiac respiratory failure on account of asphyxia. Having obtained the post -mortem report, the Investigating Officer requested the Chief Judicial Magistrate, Aurangabad to add Section 364 A/302/34 and 120 -B of the Penal Code in the First Information Report, which request of the Investigating Officer was allowed by the learned Chief Judicial Magistrate, Aurangabad under order dated 2.2.2006. In order to confirm the 161, Cr PC statement of M/s. Arvind Kumar Singh and Mukesh Kumar Gupta the Investigating Officer also produced them for their examination under Section 164, Cr PC before the learned Magistrate, who recorded their statement, Exhibits -9 and 9/1 on 2.2.2006 in which both the witnesses confirmed their statement made under Section 161, Cr PC that Arvind Kumar Singh had exchanged his SIM Card with Raju Kumar Gupta on the basis of which Raju Kumar Gupta established his telephone booth with Telephone No. 9431135489 which was managed by his nephew Mukesh Kumar Gupta. In his statement under Section 164 Cr PC Mukesh Kumar Gupta also confirmed his statement recorded under Section 161, Cr PC that on 12.1.2006 when he was at the booth, Upendra Singh, Kameshwar Singh, Manoj Singh and Yogendra Singh had come and had asked for his uncle Raju Kumar Gupta and with him Upendra Singh and Yogendra Singh went inside his residence and after snapping the connection with the booth made call for about one hour from inside the house. In consideration of the materials collected during investigation as also the statement of Arvind Kumar Singh and Mukesh Kumar Gupta under Section 164, Cr PC the Investigating Officer submitted charge -sheet against Upendra Singh, Manoj Singh, Raju Kumar Gupta and Raghubir Singh vide charge - sheet No. 32 of 2006 dated 15.4.2006. Yogendra Singh who was in jail custody in connection with some other case was taken on police remand in the instant case on 3.7.2006, whereafter he recorded his confessional statement in presence of the Investigating Officer on 5.7.2006 at Town Police Station, Aurangabad in which he gave a graphic description of the manner in which the victim boy was kidnapped by Upendra Singh and others and when he asked for his share in the ransom amount then Upendra Singh told him that money has not been paid and the victim is to be killed. Charge -sheet was submitted against Yogendra Singh vide charge - sheet No. 53 of 2006 dated 17.7.2006, against Anuj Singh vide charge -sheet No. 104 of 2006 dated 16.11.2006 and against Kameshwar Singh, vide charge -sheet No. 76 of 2007 dated 13.5.2007. After submission of charge - sheets, cognizance of the offence under Sections 364 -A, 302, 201 and 120 -B read with Section 34 of the Penal Code was taken and the case was committed to the Court of Sessions and Sessions Trial Nos. 302 of 2006/ 76 of 2006 proceeded in regard to appellant Manoj Kumar Singh, Raju Kumar Gupta, Raghubir Singh and Yogendra Singh after charges were framed against them under orders dated 18.9.2006 and 9.10.2006. The trial of Kameshwar Singh, Upendra Singh, Anuj Singh was split up vide Sessions Trial Nos. (1). 319 of 2007/126 of 2007, (2). 351 of 2007/186 of 2007 and (3). 99 of 2007/194 of 2007 and charges framed under orders dated 10.7.2007 and 26.7.2007 and after amalgamation of the trials the trial proceeded.

(3.) DURING trial, prosecution examined as many as 13 witnesses. PW -1, Rekha Devi is the owner of the grocery shop - Shubham Kirana Store, where the victim had gone to purchase snack (Takatak) and while returning home he was kidnapped. The witness has confirmed the fact that the victim boy had come to her shop alone on 30.12.2005 in between 10.10.30 a.m. and after purchasing snack (Takatak) returned back. Near about the time when the boy had come to her shop, she had also seen Raghubir Singh, the guard of P.N.B., Barun Branch near the bank gate. The witness further claimed that on the date of occurrence the guard was not on cash duty. She further stated that she learnt about the kidnapping on the same day around 11 a.m. She further claimed to have seen Kameshwar Singh, Upendra Singh and one another (who was not present in dock) with the Bank guard on the date of occurrence in between 9 -9.30 a.m. but no such claim about identifying the other accused persons with Bank guard was ever made by the witness before the Investigating Officer, as is evident from paragraph 11 of her deposition in Sessions Trial Nos. 319 of 2007/126 of 2007.