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V.N. Sinha, J.—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 u/s 302/34 read with Section 120B of the Penal Code appellant has been awarded death sentence. 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 day''s 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.
The fardbeyan was signed not only by the informant Babban Lal (P.W.-3) but also by domestic servant Pancham Kumar. On the basis of the fardbeyan recorded by S.I. P.K. Das (P.W.-15), Officer-in-Charge, Bhabhua P.S. on 19.10.2003 at 8.30 hrs. in the house of deceased N.K. Agrawal in Ward No. 10 of Bhabhua P.S., Bhabhua P.S. Case No. 298 dated 19.10.2003 was registered for the offences under Sections 302/452/447/120B/34 of the Penal Code and on the direction of the Superintendent of Police, Kaimur, Bhabhua investigation was entrusted to Circle Inspector, Bhabhua S.N. Jha (P.W.-18).
Investigating Officer Shambhu Nath Jha (P.W.-18) took up the investigation of the case in the night of occurrence itself at 9 P.M. On the instructions of the Investigating Officer P.W.-15 Pankaj Kumar Das prepared the Inquest Report of the two deceased, namely, Nalinikant Agrawal and his wife Mithilesh Kumari (Ext-5/1 and 5). After the occurrence Superintendent of Police, District Magistrate, Kaimur came to the place of occurrence and on their instruction the place of occurrence was preserved for taking out the finger print. Request was also made to the Bureau, Finger Print as also for making available the services of Dog Squad. After preserving the place of occurrence, Investigating Officer recorded further statement of the informant (P.W.-3) in which he supported the fardbeyan statement. Others serving at the petrol pump, namely, Sunil Agrawal (P.W.-20), Surendra Chaubey (P.W.-1), Sri Kant Mishra (P.W. 5), Dhirendra Dubey (not examined), Shivanand Chaturbedi (P.W.-2), Arun Pandey (P.W.-10), Md. Hayat Ansari (P.W.-7) and the Bodyguard of the deceased Constable 413 Arun Kumar Sharma (P.W.-21) also recorded their statement before the Investigating Officer. Fingerprint expert, Dog Squad also arrived in his presence. After fingerprint expert identified the chance fingerprints took these photograph and completed other formalities the Investigating Officer inspected the place of occurrence which is a double storeyed house of the deceased facing east in Ward No. 10 of Bhabhua town. The house is situate west of the road. On the eastern end of the house there is a large gate in which there is also a small gate. Both the gates are used for coming in forecourt. Before entering the house there is a forecourt, in the front of the house there is a temple in which there is idol of Ram and Janki. Just adjacent east of the temple there is a verandah. On the northern side of the verandah there is a Chowki on which the bodyguard Arun Kumar Sharma was lying flat. Just contiguous east-north of the verandah there is a room. In the northern side of the campus there is a cattle shed. On the southern side of the verandah abutting the temple on the north there is an entrance which first goes to the west and then towards north and finally ends in the courtyard. In the courtyard there are two rooms on the western side facing east. Out of the two rooms the main room is on the southern side with two doors in which the dead body of deceased Nalinikant Agrawal was found in sitting position on a white fiber chair facing south-west. Until arrival of the police the television in the room was in displaying mode. Investigating Officer reached the place of occurrence. On the dead body Investigating Officer found copious blood not only on the person but also on the chair and the floor. Near the dead body three slippers were also found. On the chair a dagger of 8" length with handle was found near the thigh of the deceased smeared with blood. Another knife was also found lying on the floor which was also of similar type. On the floor one steel glass was also found. The throat of deceased was found slit by a sharp cutting weapon. In the same room towards the north, eastern corner one Godrej almirah with stainless steel Tiffin box, pair of shoes and steel box was found with fingerprints which was preserved by the Fingerprint Expert. Near the northern wall of the room there were two Chowkies over which there was no sleeping mattresses and cotton sheet. On the Chowki there was a V.I.P. and steel box, both found unlocked and the articles kept therein scattered. Near the eastern wall of the room there is a fridge and contiguous south of the fridge there is a sofa-set and table over which cassette recorder was found kept. There is a watch on the western wall. On the east-southern corner of the room there is a door. Adjacent south of the room there is a small room which was found locked. Contiguous north of the room there is a passage with a door for going out of the house. North of the courtyard on the western corner there is a bathroom. Adjacent to the bathroom on the eastern side there is a computer room in which computer was found safely kept. Near the western wall of the computer-room there is an almirah which was found locked. North of the almirah there was a table on which fingerprints were available and preserved by the experts. Computer and the key-board were found kept on one another table. Adjacent to the computer-room there is yet another room on the northern side. In the western wall of that room there is an inbuilt almirah with rack. Fingerprints were also found over the glass of the wall almirah which was also preserved by the expert team. East of the courtyard there is a room facing west in which the dead body of deceased Mithilesh Kumari was found. Her both hands were tied with a white coloured bandage, dead body lying tilted towards left, neck found slit by a sharp cutting weapon which was found tagged with the neck. Copious blood was found in the room. Adjacent north of her dead body a Chowki was there over which two attach� case and a tin box, another V.I.P. was found unlocked and the articles kept therein scattered. Adjacent north of the dead body of the lady deceased there was a Chowki over which mattress and cotton sheet was also found smeared with blood. In the room in which the dead body of lady deceased was found, on a tin medicine box and the cassette fingerprints were also found and preserved by the experts. On the southern side of the room two chairs and sofa-set, table-fan etc. were also found kept. On the Chowki kept south of the dead body belongings were found scattered. From the place of occurrence the Investigating Officer seized the knife and the fasuli found in the two rooms. He also prepared the sketch map of the place of occurrence which is available in the case diary. Both the dead bodies were sent for post-mortem after preparing dead body challan. Photographs of the place of occurrence was also taken.
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.
During trial prosecution examined P.W.-1 Surendra Chaubey, P.W.-2 Shivanand Chaturbedi, P.W.-3 Babban Lal (informant), P.W.-4 Vinod Kant Agrawal, P.W.-5 Sri Kant Mishra, P.W.-6 Rakesh Kumar Keshari, P.W.-7 Md. Hayat Ansari, P.W. 8-Raju Khan, P.W.-9-Shiv Chand Yadav, P.W.-10-Arun Pandey, P.W.-11-Vijay Shankar Tiwary, P.W.-12-Md. Nizamuddin Mian, P.W.-13-Ashok Kumar Singh, P.W.-14-Dr. Ajay Kumar Manjhi, P.W.-15-Pankaj Kr. Das, P.W.-16-Kaushal Kishore Prasad Shrivastava, P.W. 17-Pawan Kumar Singh, P.W.-18-Shambhu Nath Jha, P.W.-19 Dr. Sudhir Kumar Sinha, P.W. 20-Sunil Kumar Agrawal, P.W. 21-Arun Kumar Sharma, P.W. 22-Punit Singh.
In the light of the evidence of prosecution witnesses 1 to 22 the case of co-accused Birendra Bind, Madhu Mangal Choubey, Santosh Panda, Banshi Bind, Sri Niwas Singh Kushwaha @ Mohan Koiri, Ram Sewak Yadav, Rajbans Tiwari, Bhola Tiwari, Pancham Kumar @ Pancham Kumar was considered by the trial court under judgment dated 9.5.2006 passed in Sessions Trial No. 89 of 2005 and the aforesaid accused were acquitted. The case of the appellant was not considered under judgment dated 9.5.2006 as he remained absconding even after cancellation of his bail bond under orders dated 27.10.2005 and his case was split up under order dated 6.3.2006 and numbered as Sessions Trial No. 89/32(A) of 2005. It appears from order dated 3.5.2006 of the present trial that appellant was remanded in the present trial on the basis of the production warrant while appellant was in custody in connection with Bhabhua P.S. Case No. 196/2005. His request for grant of bail was refused on 4.7.2006 and on the same day his statement u/s 313 Cr.P.C. was recorded. Later on 2.11.2006 the report dated 12.8.2006 received from the Fingerprint Bureau, Criminal Investigation Department, Bihar, Patna, thumb impression of the appellant taken in presence of the court on 24.2.2005 X-1, photograph of chance print-K, L.T.S. and R.T.S. of the appellant dated 13.6.2006 in three pages were marked as Exhibits-14, 15, 15/1, 15/2, 15/3, 15/4 and 15/5 respectively. The trial court initially considered the case of the appellant on the first occasion under judgment dated 4.11.2006 and taking into account the report of the Fingerprint Bureau marked Exhibit-14, 15 convicted him for the offence of murder of the two deceased and sentenced him to suffer death sentence. The appellant was also convicted for the lesser offences as well. The reference made for the confirmation of the death sentence imposed on the appellant under judgment dated 4.11.2006 and the appeal filed by him were considered along with Government Appeal No. 11/2006 arising out of the judgment of acquittal dated 9.5.2006 passed in favour of the other co-accused were heard together and disposed of under judgment dated 10.7.2008, whereunder the Government Appeal was dismissed. The death reference was also answered in negative the appeal filed by the appellant allowed on the ground that while recording his statement u/s 313 Cr.P.C. on 4.7.2006 he was not given an opportunity to explain the findings recorded by the Fingerprint Bureau in report dated 12.8.2006 (Ext.-14) with reference to his L.T.I. taken in presence of court on 24.2.2005 (Ext.-15) which were brought on record as an exhibit under order dated 2.11.2006 and the matter was remanded for further consideration by the trial court.
In the light of the judgment of the High Court dated 10.7.2008 prosecution examined P.W. 23 Dinanath Choubey, Fingerprint Expert, P.W. 24 Shailendra Kr. Chaturvedi photographer who took photograph of place of occurrence, P.W. 25 Santosh Sudhakar who developed the photographs of the fingerprints, P.W. 26 Rajendra Jha who also developed the photographs of the fingerprints.
After examining the aforesaid witnesses P.W. 23 to 26 the appellant was again examined u/s 313 Cr.P.C. and thereafter the impugned judgment has been passed again holding the appellant guilty for the offence or murder of the two deceased and awarding him death sentence which is impugned in the present case.
Now we proceed to consider the merit of the prosecution evidence.
(a). P.W.-1 Surendra Chaubey is a resident of Village-Saitha, Bhabhua where the deceased has his farm lands. He has stated in his evidence that he knew the deceased Nalinikant Agrawal, resident of Ward No. 10, Bhabhua but he does not have any acquaintance with his wife. He admits in his evidence that the farm land of the deceased was in his village where agriculture operations are not being conducted presently as Nalinikant Agrawal died more than one year earlier. P.W.-1 further admitted that he learnt about killing of Nalinikant Agrawal and his wife. He further states that he is not aware whether Nalinikant Agrawal and his wife were killed during the day or in the night. Witness however, admitted his signature on the seizure-list (Ext.-1 to 1/5) and further stated that his signatures were obtained by Sub-Inspector on blank paper. In the light of the aforesaid evidence of P.W.-1, he was declared hostile and was made available for cross-examination by the prosecution.
(b). P.W.-2 Shivanand Chaturbedi is also a witness of the seizure and admits his signature over seizure-list (Ext.-1/6) but clarified that neither the seizure-list was prepared in his presence nor the materials said to have been seized thereunder were seized in his presence. Witness further claimed that he was never examined by the police. In the light of the evidence P.W.-2 has also been declared hostile and made available for cross-examination by the prosecution.
(c). P.W.-3 Babban Lal is the informant. From the information given by the witness at the time of his deposition it appears that he is in service at Agrawal Petrol Pump in Bhabhua. The witness further states that the owner of the Agrawal Petrol Pump late Nalinikant Agrawal was resident of Ward No. 10. He further states that the present case has not been filed by him. Witness, however, admits his signature over the fardbeyan which is marked as Exhibit-1/7. Witness also admits his signature over seizure-list which is marked as Exhibit-1/8. Witness further admits his signature over carbon copy of the inquest-report (Ext.-5, 5/1) and proves his signature over the two inquest-reports as Exhibit-1/9 and 1/10. Informant P.W.-3 has also been declared hostile and made available for cross-examination by the prosecution.
(d). P.W.-5 Sri Kant Mishra is an advocate and part time employee serving at the petrol pump of the deceased. He has proved his signature over four pieces of seizure-list vide Exhibit-1/11 to 1/14. he has also been declared hostile as he stated before the court that he was never examined by the police.
(e). P.W.-12 Md. Nizamuddin Mian is a co-villager of the appellant and has proved his signature (Exhibit-1/15) over seizure-list (Exhibit-1/17) regarding seizure of Mahendra Jeep bearing Registration No. MP-27-2668 from the house of the appellant said to have been used during the present occurrence. He has further stated that Shiv Chand Yadav (P.W.-9) in his presence put his L.T.I. over the seizure-list, copy whereof was handed over to the father of the appellant Rambilas Tiwari. This witness has also been declared hostile as he has stated in court that he was not examined by the police.
During evidence P.W.-4 Vinod Kant Agrawal businessman and neighbour of the deceased, P.W.-6 Rakesh Kumar Keshari driver of the deceased, P.W.-7 Md. Hayat Ansari employee serving at the petrol pump of the deceased, P.W.-8 Raju Khan mechanic and employee serving at the petrol pump of the deceased, P.W.-9 Shiv Chand Yadav employee of the deceased at the petrol pump, P.W.-10 Arun Pandey also employed at the petrol pump and serving as priest in the temple situate in the forecourt of the deceased, P.W.-11 Vijay Shankar Tiwary brother of the appellant, P.W.-13 Ashok Kumar Singh owner of the P.C.O. booth have not supported the prosecution story, as such, their evidence is not of any consequence to the prosecution and is not being discussed in this judgment.
Now, we come to the evidence of P.W.-20 Sunil Agrawal who is related to the deceased and was serving at his petrol pump on the date of occurrence. He has stated in his evidence that deceased was killed on 19.10.2003 by slitting his throat. Witness has further stated that wife of the deceased Mithilesh Kumari was also killed. In paragraph 3 P.W.-20 has further stated that he was looking after the affairs of the petrol pump and was entrusted with the job of obtaining draft. It, further appears from the evidence of P.W.-20 that he has supported the contents of the fardbeyan that on 19.10.2013 (Sunday) after closing the petrol pump he along with P.W. 3 informant Babban Lal came on a scooter to the house of his master at about 7 P.M. but found the gate closed. The witness and informant waited for 10 minutes whereafter Banshi Bind opened the gate. The witness has supported the contents of the fardbeyan. P.W.-20 has further proved his signature over the Inquest Report of the two deceased vide Exhibit-1/24 and 1/25. He has further stated that Inquest Report of the two deceased was also signed by P.W. 3 Babban Lal.
P.W.-21 Constable Arun Kumar Sharma served on the date of occurrence as the bodyguard of the deceased. He has stated in his evidence that the occurrence took place about 7 years earlier on 19.10.2003 at about 7.30 P.M. He has further stated that at the time of occurrence he was cooking meal, the miscreants suddenly came to him folded his eyes, pointed iron like weapon and abusingly asked to keep quiet failing which threatened to shoot him. As the witness wanted to raise his hands the miscreants tied his hands, legs and lifted him. After some time he could hear that the miscreants were asking for the keys of the locker on which the witness replied that he is unaware about the keys. Sometime thereafter he heard that the miscreants were asking Banshi and Pancham about the keys of the safe. Earlier Pancham informed P.W. 21 that tube-light fixed in the room of the master is not lighting and is required to be repaired. After some time the witness heard that miscreants were asking Pancham about the keys of the rear door, who replied that the same must be inside on a window. P.W. 21 thereafter realized that Pancham was being dragged and abused. After some time Pancham removed the cotton fold which the miscreants put over the eyes of the witness and also informed him that on the gate Munshiji is raising alarm. Soon thereafter witness asked Pancham to open the gate and inform the Superintendent of Police and the Police Station about the occurrence. After opening the gate Munshiji and Sunil Agrawal came inside the campus and were informed that miscreants had entered the house and have escaped from the rear door as per information given by Pancham. After opening the gate Munshiji and Sunil Agrawal came inside the campus and were informed by Pancham that miscreants entered the house and escaped from the rear door. After sometime the Officer-in-charge, 2nd officer Surendra Singh and S.I. Manju Devi along with constables came to the place of occurrence and untied his hands and legs and thereafter P.W.-21 along with the police officers went inside the house and found both Nalinikant Agrawal and his wife killed. From further evidence of P.W.-21 it, however, appears that he has not supported the further case of the prosecution and was declared hostile by the trial court.
Now we consider the evidence of P.W.-14 Dr. Ajay Kumar Manjhi, P.W. 16 Dr. Kaushal Kishore Prasad Shrivastava and P.W.-19 Dr. Sudhir Kumar Sinha. The post mortem of the two deceased was conducted by P.W.-16 Dr. Kaushal Kishore Prasad Shrivastava in presence of P.W.-14 Dr. Ajay Kumar Manjhi, P.W.-19 Dr. Sudhir Kumar Sinha, the two observers who were present in course of the post-mortem examination of the two deceased. The post-mortem report of deceased Mithilesh Kumari is Exhibit-2 and that of her husband Nalnikant Agrawal is Exhibit-3. Both the post mortem reports have been proved by Dr. Ajay Kumar Manjhi P.W.-14. According to the post-mortem report and the evidence of P.W.-16 Dr. Kaushal Kishore Prasad Shrivastava, the two deceased died on account of slitting of their throat by a sharp cutting weapon. The nature of the injury as indicated in the post mortem report and corroborated in the evidence by P.W.-16 confirm the fact that the two deceased were killed by slitting their throat by a sharp cutting weapon.
Now we consider the evidence of the three police officers, namely, P.W.-15 Pankaj Kumar Das, Officer in charge, Bhabhua Town P.S. who is the scribe of the fardbeyan (Ext.-4) as also prepared the Inquest Report of the two deceased Mithilesh Kumari and Nalinikant Agrawal (Ext.-5,5/1 respectively). P.W.-15 has stated in his evidence that on 19.10.2003 he was serving as Officer incharge of Bhabhua Police Station. He further confirms that on the date of occurrence he had noted the fardbeyan of Babban Lal (P.W.-3) in the house of deceased Nalnikant Agrawal in Ward No. 10 at about 8.30 P.M. He has also confirmed that at the time of the recording of the fardbeyan the dead body of the two deceased was found in the house. P.W.-15 has proved the fardbeyan of Babban Lall (P.W.-3) as Exhibit-4. P.W.-15 further states that after recording the fardbeyan he forwarded the same to the Police Station for drawing the formal F.I.R. The forwarding is also in his handwriting. In the light of the fardbeyan formal F.I.R. was drawn by Manju Singh, S.I. which the witness proved as Exhibit-8. P.W.-15 prepared the Inquest Report of the dead body of Mithilesh Kumari and Nalinikant Agrawal between 9-9.30 P.M. and proved the same as Exhibit-5, 5/1. Investigation of the case was handed over to P.W.-18 Shambhu Nath Jha, Circle Inspector on the instructions of Superintendent of Police, Bhabhua. P.W.-15, however, seized Mahendra Jeep bearing Registration No. MP-27-2668 from the house of appellant on 5.11.2003 vide seizure-list dated 5.11.2003 (Ext.-1/17). P.W.-15 also seized Passbook No. 5184 of SBI, ADB, Bhabhua issued in the name of the appellant from his house on 28.10.2003 showing deposit of Rs. 3,00,000/- (three lacs) in presence of Moon Chand Kharwar and Babban Prasad Bind vide Exhibit-1/18.
P.W.-17 Pawan Kumar Singh, Sub Inspector was asked by the Superintendent of Police to assist the Investigating Officer in investigation of the case. Witness also confirms the aforesaid fact and further states that he assisted the Investigating Officer by remaining present along with him at the different stages of the investigation. According to the witness the employees of the two deceased who were made accused in the case recorded their confession and on the basis of the said confession present appellant was apprehended and from his house pass-book of State Bank of India, Bhabhua Branch was seized, wherefrom it appears that he has deposited Rs. 3,00,000/- (three lacks )in the said account after 5-6 days of the occurrence. Father, brother of the appellant could not explain the deposit made by the appellant in his account. He has further stated that from the place of occurrence of the present murder case photograph of chance fingerprint was taken and the accused persons their fingerprint was obtained.
P.W. 22 Punit Singh, A.S.I. brought material exhibit from Malkhana in court. There is nothing substantial in the evidence of this witness about the place, manner of occurrence, as such, his evidence is not being considered in detail.
Now we come to the evidence of P.W.-18 Shambhu Nath Jha, Circle Inspector, Bhabhua and the Investigating Officer of the case. P.W.-18 took up the investigation of the present case on the instructions of the Superintendent of Police on 19.10.2003 and as per his instructions P.W.-15 prepared the Inquest Report. He, however, conducted further investigation by inspecting the place of occurrence, recorded the statement of the witnesses, then collected post-mortem report and submitted charge-sheet, supplementary charge-sheet against ten persons including appellant. The investigation, however, continued against others.
(a). Now we consider the evidence of P.W.-23 Dinanath Choubey who at the relevant time served as Director-cum-Chief State Examiner of Fingerprint, C.I.D., Bihar. He has stated in his evidence that chance fingerprint marked-K for identification taken from the place of occurrence of Bhabhua Town P.S. Case No. 298/2003 dated 19.10.2003 registered for the offence under Sections 302, 452, 347, 120B and 34 of the Penal Code was examined, compared by him and his staff M/s. Jayant Kumar, Ashutosh Kumar and Lakhan Lal Singh with the left, right hand finger print, palm print of the appellant taken in presence of Judicial Magistrate, 1st Class, D.K. Mishra and sent to his office for comparison. Having examined and compared the two fingerprints, the witness and other examiners unanimously came to the conclusion that the chance fingerprint-K was similar to the specimen L.T.I.-X-1 of the appellant. In paragraph 2 of his evidence P.W.-23 specifically stated that the fingerprints of the other accused marked-A, B, C, D, E, F, G, H, I, J, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y could not match with the chance fingerprint because of the difference in the ridge characteristics and the comparison was not possible.
(b). P.W. 24 Shailendra Kr. Chaturvedi is the photographer who took the photograph on 20, 21.10.2003 of the chance print from the Sunmica table found at the place of occurrence of Bhabhua P.S. Case No. 298/2003. In paragraph 2 he has further stated that he has also brought the negative of the photographs of the chance print which he had taken. He has also stated that after taking the photograph of the chance print from the Sunmica table, the same was marked as K and later K is available on the negative as well.
(c). P.W.-25 Santosh Sudhakar is also a Fingerprint Expert who on the instruction of the then Director Dinanath Choubey (P.W.-23) had come to the place of occurrence of Bhabhua Town P.S. Case No. 298/203 along with A.S.I. Shailendra Kumar Chaturvedi (P.W.-24) and had assisted in searching the chance print at the place of occurrence and thereafter took photograph which was developed by P.W. 24 Shailendra Kumar Chaturvedi.
(d). P.W.-26 Rajendra Jha is Photo S.I. in C.I.D. Department, Patna. He had taken the photograph of the thumb impression of the appellant in connection with Bhabhua P.S. Case No. 298/2003, marked X-1 which was further developed on the basis of the negative.
Having considered the evidence of the prosecution witnesses recorded in two stages, one before remand i.e. of P.W. 1 to 22 and the other after remand i.e. of P.W.-23 to 26 now we proceed to consider the submission made by the counsel for the appellant.
(a). It is submitted by the learned counsel for the appellant that prosecution witnesses P.W. 1 to 13, 20, 21 having not supported the prosecution case that the two deceased were done to death in the evening of 19.10.2003 in their double storeyed house situate in Ward No. 10 of Bhabhua Town it would not be prudent for this Court to convict the appellant only on the basis of the report of the Finger print Expert (Ext.-14, 15). It is further submitted that the other corroborative evidence Ext.-11 pass-book of the appellant seized from his house is only indicative of the fact that on 27.10.2003 appellant deposited Rs. 3,00,000/- (three lacs) in his account and the deposit of the amount by any stretch of imagination cannot connect the appellant with the murder.
(b). Learned counsel for the appellant also submitted that the fingerprint report is the evidence of an expert referable to Section 45 of the Evidence Act and is not a primary evidence as it is well settled that the report of the Fingerprint Expert is a secondary evidence which can only be used as a corroborative piece of evidence. In this connection he placed reliance on the judgment of the Supreme Court in the case of Musheer Khan @ Badshah Khan and Another Vs. State of Madhya Pradesh, which is quoted hereinbelow for ready reference:--
Learned counsel for the State relied very much on the evidence of finger print expert (PW-23). It is well known that the evidence of finger print expert falls under the category of expert evidence u/s 45 of the Indian Evidence Act, 1872.
It will be noticed that under the Indian Evidence Act, the word ''admissibility'' has very rarely been used. The emphasis is on relevant facts. In a way relevancy and admissibility have been virtually equated under the Indian Evidence Act. But one thing is clear that evidence of finger print expert is not substantive evidence. Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record.
Counsel for the appellant in this connection also placed reliance on another judgment of the Supreme Court dated 20.6.2008 in the case of Roop Singh @ Rupa v. The State of Punjab Cr. Appeal No. 1307 of 2005 and referred to paragraph 13, relevant portion whereof is also quoted hereunder:--
.....................There was no evidence led by the prosecution to show that the prints in question came into existence at the time of alleged incident took place.
(c). Learned counsel for the appellant further submitted that from the impugned judgment it will appear that the trial court has also relied on the criminal antecedent, factum of appellant having absconded during trial for recording the conviction. It is submitted that the circumstance that the antecedent of the appellant is not clean for the reason that several cases are registered against him and that he had absconded during trial was never put to him during his examination u/s 313 Cr.P.C. and ought not to have been relied for his conviction.
Counsel for the State has supported the judgment of conviction and submitted that the trial court has rightly placed reliance on the report of the finger print expert Ext.-14 and the admitted L.T.I. of the appellant Ext.-15 for convicting him with reference to the further evidence of deposit having been made in the account of the appellant of a substantial amount of Rs. three lacs just few days after the occurrence on 27.10.2003 which is indicative of the fact that the amount appellant must have taken from the house of the two deceased after he committed their murder, which is established by his presence in the house with reference to the report of the finger print expert. In this connection he referred to the 313 Cr.P.C. statement of the appellant dated 13.10.2009 recorded after the remand of the matter by this Court in July, 2008. Specific reference was made to Question Nos. 7,8, perusal whereof indicates that in Question No. 7 appellant was asked by the trial court to explain as to how he could deposit Rs. 3 lacs in Bhabhua ADB branch of the S.B.I. which is apparent from his Pass Book No. 5184. In response to the said question appellant submitted that the sum deposited in the account is income from dairy business. From perusal of the Pass Book (Ext.-11) it is quite evident that besides sum of Rs. 3 lacs no other deposit has been made in the account as prior to the deposit the balance is only Rs. 566/-. Another question referred to by the State counsel is Question No. 8 where he was asked to explain as to how his finger print matched with the chance print as per the report (Ext.-14) and evidence of P.W. 23. Appellant in response to the said question only stated that his admitted finger print was taken by Pankaj Kumar Das (P.W.-15) thrice.
From the evidence of P.W. 23 Dinanath Choubey and report of the finger print expert (Ext.-14) it would appear that finger print of the L.T.I. of the appellant X-1 matched with the chance finger print K found on sunmica top of the table kept in the computer room of the two deceased. With reference to the report of the finger print examiner Ext.-14 it can be conclusively said that the finger prints of the appellant was available on the table with Sunmica top kept in the computer room of the deceased. Such availability of the finger print of the appellant on the table of the deceased kept in the computer room establish his presence in the house of the deceased. In view of the report of the finger print expert, in our opinion, the appellant was required to have explained as to how and when he visited the house of the deceased and his chance finger print was left on the table with Sunmica top. Appellant having not even attempted to explain the availability of his finger print in the house of the deceased, in our opinion is feigning ignorance about his presence in the house of the deceased. Such feigning ignorance about the presence in the house of the deceased is indicative of the fact that he is involved in the murder of the two deceased and the other offences committed in the same transaction. In this connection, we may refer to the evidence of P.W.-3 the informant who admitted his signature over the fardbeyan Ext.-4, Inquest Report Ext.-5,5/1 as also to the evidence of P.W.-20, Sunil Agrawal who came to the place of occurrence soon after the occurrence along with the informant and met P.W.-21 Arun Kumar Sharma the bodyguard of the deceased. From perusal of the evidence of P.W.-20, 21 it would appear that the manner of occurrence, as has been stated in the fardbeyan of P.W.-3 has been admitted by P.W.-20, 21. The manner of occurrence having been admitted by P.W. 20, 21 the employees serving at the petrol pump or the house of the two deceased were examined by the Investigating Officer. In the light of their statement including the confessional statement of Ram Sewak Yadav, appellant was arrested, seizure of the pass-book No. 5184 vide seizure-list Ext. 1/18 made from his house showing deposit of Rs. 3,00,000/- (three lacs) in his account on 27.10.2003, his Left Thumb Impression-X-1 marked for identification having matched with the chance finger print-K found at the place of occurrence on the top of the Sunmica table the two having been compared and found similar by the expert P.W.-23 vide report Exhibit-14 there cannot be any doubt in concluding that it is the appellant and his other accomplice committed the murder of the two deceased as also the other offences in the same transaction. The submission that chance finger print did not come into existence at the time of the alleged incident is wholly misconceived as it is quite evident from the evidence of Investigating Officer P.W.-18 and P.W.-24 that soon after the occurrence, place of occurrence was preserved and the chance prints were taken on 20,21.10.2003 by P.W.-24. In view of the aforesaid evidence the submission raised by the learned counsel for the appellant with reference to the judgment of the Supreme Court in the case of Roop Singh @ Rupa (supra) is wholly misconceived.
At this stage we may also observe that aforesaid finding of ours is bereft of the finding of the trial court as while recording the conviction the trial court not only relied on the report of the finger print expert and the pass-book but also placed reliance on the criminal antecedent of the appellant about his involvement in several criminal cases including the factum of his absconding during trial. In our opinion, neither the criminal antecedent nor the absconding of the appellant during trial is a circumstance connecting him with the crime, as such, was neither required to be put to the appellant during his 313 Cr.P.C. statement nor was required to have been taken into account for convicting him.
Having maintained the conviction of the appellant we consider the efficacy of the death sentence imposed on the appellant. True it is that appellant has been found guilty of double murder but the present case does not come within the category of rarest of the rare case, as enumerated by the Hon''ble Supreme Court in the case of Bachan Singh Vs. State of Punjab, . The case of the appellant being not rarest of the rare case, the sentence of death awarded to the appellant for his conviction u/s 302/34 read with Section 120B of the Penal Code is converted into life sentence and the sentence imposed for the other offences is maintained. It is, however, directed that the sentences imposed on the appellant shall run concurrently and appellant shall also be entitled for grant of remission as per the provisions in the Cr.P.C. and the rules framed by the Government. In the result, the death reference is answered in negative, with the aforesaid modification in sentence, appeal is dismissed.