JUDGMENT (SHYAM KISHORE SHARMA) Death Reference No. 3 of 2012 has been referred to this Court for confirmation of sentence of death of condemners Nagendra Rai alias Raj Punchum Rai and Rajesh Mishra under Section 374 of the Code of Criminal Procedure by learned Additional Sessions Judge, Fast Track Court No.V, Buxar passed on 17th February, 2012 in Sessions Trial No. 200 of 2009 and Cr. Appeal (DB) No. 272 of 2012 has been filed by the contemned-appellants against the judgment of conviction dated 10.02.2012 and order of sentence dated 17.02.2012 passed by Additional Sessions Judge, Fast Track Court No.V, Buxar in Sessions Trial No. 200 of 2009 by which both the appellants have been sentenced to undergo rigorous imprisonment for seven years each for offences under Sections 201 and 380/34 of the Indian Penal Code and to pay a fine of Rs.25,000/- and in default of payment of fine to undergo rigorous imprisonment for six months and for offence under Sections 302 and 120(B)/34 of the Indian Penal Code, both the appellants have been imposed death penalty (hang till death) considering that the case is “rarest of rare cases”. 2. Simari P.S.Case No. 5 of 2009 (G.R.Case No. 81 of 2009) under Sections 302 and 201/34 of the Indian Penal Code was registered on 16.01.2009 with regard to an occurrence of the night of 3/4.01.2009 on the basis of written report of Satrughan Prasad Singh, Inspector of Police, Simari Police Station in which both the appellants namely, Nagendra Rai alias Raj Punchum Rai and Rajesh Mishra were made accused. It has been alleged in the written report that on 04.01.2009 Surendra Kumar Thakur of village Sahiyar, P.S. Simari, District Buxar had filed a written application before the Officer-in-Charge, Simari Police Station mentioning therein that his mother Annapoorna Devi aged 82 years was living alone in her house and his other family members have almost settled at Dhanbad. He stated in the application that he received telephonic message that his mother Annapurna Devi died on account of burning in the worship house while she was doing pooja. After getting information, he along with other family members rushed to his native village Sahiyar from Dhanbad and when he reached the village, he found his mother dead on account of burn injury. Her body was turned in asses. He suspected none. After getting information, he along with other family members rushed to his native village Sahiyar from Dhanbad and when he reached the village, he found his mother dead on account of burn injury. Her body was turned in asses. He suspected none. This information given by Surendra Kumar Thakur resulted into Simari (U.D.) Case No. 1 of 2009 on 04.01.2009 and investigation started. The Police reached the place of occurrence in night in connection with investigation of U.D.Case and during night time where gathering was present and all narrated that Annapoorna Devi became Sati and the people were doing Jai-jaikar and Pranam. As there was religious touch of her death, no post mortem of her body was done. After cremation, the place of occurrence was investigated on 05.01.2009. one Bakula of bamboo having blood stain and in the last portion having sign of burn by fire, one wooden bit having blood stain, one woollen lady scarf having spot of blood, and one plastic tub and one plastic katora (pot) having blood stain and one white sari having spot like blood were found in the room of Annapoorna Devi which were seized in presence of two independent witnesses namely Gangesh Thakur (P.W.2) and Abhay Naresh Thakur (P.W.5) and seizure list was prepared upon which the witnesses put their signatures. During inspection, blood spot was found on the southern wall of the victim’s room by the Investigating Officer and it was suspected that first victim might have been killed and later on her dead was burnt. During investigation, son of the deceased Surendra Prasad Thakur in his further statement stated that his Mausera brother namely, Nagendra Rai alias Punchum Rai and his friend namely Rajesh Mishra had visited Annapoorna Devi and they might have killed her and with a view to save themselves might have stated that Annapoorna Devi has become Sati and also she has become Devi. He has further stated that one day prior to the occurrence, his Mausera brother Nagendra Rai alias Punchum Rai along with his companion Rajesh Mishra had come and told people that his Mausi had given Kawatch and blessing that every work would be done and asked him to come on the next day in the morning. He has further stated that one day prior to the occurrence, his Mausera brother Nagendra Rai alias Punchum Rai along with his companion Rajesh Mishra had come and told people that his Mausi had given Kawatch and blessing that every work would be done and asked him to come on the next day in the morning. He also stated in his further statement that the visit of his Mausera brother Nagendra Rai alias Raj Panchum Rai and his friend Rajesh Mishra was not being liked by the sons of Annapoorna Devi. In course of supervision it was suspected that Annapoorna Devi was killed, so the present case was registered against Nagendra Rai alias Raj Punchum Rai and Rejesh Mishra. After completion of investigation, chargesheet was submitted, cognizance was taken and the case was committed to the court of sessions where charges under Sections 302, 201/34, 120B and 380/34 of the Indian Penal Code were framed and explained to the accused persons who pleaded innocence. Hence trial proceeded. 3. The defence of the accused persons was of false implication. The defence of accused Nagendra Rai alias Raj Puncham Rai was that as the informant is his Mausera brother and family dispute are going on, hence he has been implicated due to enmity. The defence of accused Rajesh Mishra is that he is friend of Nagendra Rai alias Raj Puncham Rai, so he has been falsely implicated in this case. 4. In order to substantiate its case, the prosecution has examined altogether 13 witnesses. They are: P.W.1 Ram Nath Thakur, P.W.2 Gangeshwar Thakur, P.W.3 Surendra Kumar Thakur, P.W.4 Ram Deyal Prasad, P.W.5 Abhay Naresh Thakur, P.W.6 Sushil Thakur, P.W.7 Shatrughan Prasad Singh, the informant of the case, P.W.8 Virendra Nath, P.W.9 Narendra Kumar Thakur, P.W.10 Sushila Devi, P.W.11 Narmdeshwar Thakur, P.W.12 Kusheshwar nath Singh, P.W.13 Nathuni Yadav. 5. Besides oral evidence, the prosecution has exhibited some documents: The signatures of Gangeshwar Thaur, Abhay Narayan Thakur, Awadhesh Narayan Thakur on the seizure lists have been marked as Exts.1,1/1,1/2 and 1/3 respectively. 5. Besides oral evidence, the prosecution has exhibited some documents: The signatures of Gangeshwar Thaur, Abhay Narayan Thakur, Awadhesh Narayan Thakur on the seizure lists have been marked as Exts.1,1/1,1/2 and 1/3 respectively. The F.I.R. has been marked as Ext.2, the signature of Rajendra Thakur on the Inquest Report has been marked as Ext.3, the signature of Raghubansh Paswan on the fardbeyan has been marked as Ext.4, signature of Raghubansh Paswan on seizure list has been marked as Ext.5, signature and writing of Investigating Officer Satrughan Prasad Singh from page 1 to 36 in U.D.Case No. 1/09 has been marked as Ext.6, writing and signature of Ghanshyam Prasad on requisition has been marked as Ext.7 and report of Forensic Science Laboratory has been marked as Ext.8. Material Exts. A/1,B,C and D are other documents which have been relied upon by the prosecution. 6. No oral and documentary evidence has been produced by the defence. 7. The trial court after hearing learned counsel for the parties and considering the evidences on record came to the conclusion that the prosecution has been able to prove the charges against the accused persons beyond the shadow of all reasonable doubts and found that the case is “rarest of the rare cases” and thereafter convicted and sentenced, as stated above. 8. This Court is required to see in its entirety the oral evidence, documents, exhibits and also to analyse the arguments of the learned counsels assisting the Court and to see as to whether the judgment passed by the trial court is based upon the materials available on record or not. 9. The death of Annapoorna Devi aged 82 years at the outset is not in dispute. It is also not in dispute that she died in her own house where she was living alone. From the trend of cross-examination also it is apparent that death of the deceased due to burning has not been questioned. So the consistent version of the prosecution regarding the death of Annapoorna Devi in her house has been established beyond the shadow of all reasonable doubts. 10. The informant of U.D. Case Surendra Kumar Thakur and his two brothers with their family members were living at Dhanbad. The deceased was living in her house alone. So the consistent version of the prosecution regarding the death of Annapoorna Devi in her house has been established beyond the shadow of all reasonable doubts. 10. The informant of U.D. Case Surendra Kumar Thakur and his two brothers with their family members were living at Dhanbad. The deceased was living in her house alone. Unchallenged version of the prosecution is that the telephonic message regarding death of Annapoorna Devi while performing pooja has led the sons and other family members of Annapoorna Devi to rush to native place from Dhanbad. After reaching their native place the sons and other family members in the evening of date of occurrence found Annapoorna Devi no more. Her body was completely burnt and her body by way of ashes was available. 11. P.W.7 Satrughan Prasad Singh, Inspector of Police, Simari police station is the informant of the case. On 04.01.2009 while he was at police station, an information was received by him from Officer-in-Charge Sri R.K.Bhalu that Annapoorna Devi of village Sahiyar has burnt to death while she was worshiping and an U.D.case No. 1 of 2009 was registered. Informant rushed to the said village and found remnants of some part of her head after burnt, mob was there and they were shouting that Annapoorna Devi has become Sati and due to strong protest the post mortem could not be held. As it was night, the place of occurrence was not inspected. On the next day, the place of occurrence was inspected. After cremation, the family members had returned. Surendra Kumar Thakur told that Nagendra Rai, his Mausera brother and his friend Rajesh Mishra had come to his house and it was told by Nagendra Rai that a kawach was given to him by Annapoorna Devi by saying that nothing would harm him. Statements of Gangeshwar Thakur (P.W.2), Abhay Naresh Thakur (P.W.5), Mukteshwar Thakur (not examined) and others were recorded and seizure lists were prepared. Surendra Kumar Thakur, son of the deceased, had submitted a written application to the Officer-in-charge but did not give reason of death by burn which his mother has received while worshiping. So no suspicion was raised. No evidence could be collected on 01.04.2009. No one from the family of the deceased became the informant. So after eleven days of the occurrence, this witness himself became the informant of the case. 12. So no suspicion was raised. No evidence could be collected on 01.04.2009. No one from the family of the deceased became the informant. So after eleven days of the occurrence, this witness himself became the informant of the case. 12. P.W.1 Ram Nath Thakur and P.W.2 Gangeshwar Thakur (nephew of the deceased Annapoorna Devi) have stated the same thing that Ram Deyal Thakur (P.W.4) was running a Mill and he used to lock the outer gate in the night. Both the witnesses had gone to the place of occurrence in the next morning after hearing the sad news, so the evidence of these two witnesses are of no help. 13. P.W.3 Surendra Kumar Thakur is the son of the deceased who rushed from Dhanbad to his native place after receiving information and his initial version was that nobody was responsible for causing death of her mother Annapoorna Devi but suspicion was raised later on that Nagendra Rai might have the motive to grab the property of victim Annapoorna Devi but the motive has been demolished by this witness himself when in paragraph 9 in the evidence has stated that his mother was owner of ten bighas of land. 15 years ago she possessed 20 bighas of land but his mother transferred 15 bighas of land to Onkar Nath Rai, brother-in-law (sala) of this witness in the year 1993. This witness further states that Only two or one and half bighas of land was remained with her. Subsequently power of attorney was given to P.W.3 by Onkar Nath Rai. The simple reading of the evidence of this witness shows that his mother Annapoorna Devi possessed no such land so there was no question of grabing the property by appellant no.1 Nagendra Rai. This witness has further stated in his evidence that there was an unanimous view that his mother has died while worshiping. That was the first version which was passed over to the police. 14. P.W.4 Ram Deyal Prasad, who was possessing the key of main gate of the house and his duty was to lock and unlock the main gate, has stated that when he went inside near the room of Annapoorna Devi he found smoke and a body was burning. Seeing the scene, this witness cried and on his cry, others came. A mob of 100 to 150 persons assembled and all told that Annapoorna Devi died. Seeing the scene, this witness cried and on his cry, others came. A mob of 100 to 150 persons assembled and all told that Annapoorna Devi died. In the gathering appellants were also present and they also told that Mausi became Sati. 15. P.W.5 Abhay Naresh Thakur, who is grand son of deceased Annapoorna Devi and was living at Dhanbad, made the similar version to that of P.W.3. P.W.6 is hearsay witness and at the time of occurrence he was residing at Delhi and after hearing the news of death of Annapoorna Devi he came to the village on 7th January, 2009. P.W.8 Birendra Nath Thakur is another son of deceased Annapoorna Devi who has deposed that at the time of occurrence he was at Dhanbad and on receipt of information regarding death of his mother, he reached the native village. This witness has stated that he has three brothers and he categorically stated that no property was got registered or executed by the accused from his mother. P.W.9 Narendra Kumar Thakur is another son of the deceased Annapoorna Devi. He has stated in his evidence that at the time of occurrence he was at Dhanbad and there an information was received that his mother died while worshiping. P.W.10 Shushila Devi who was a domestic help has stated that Annapoorna Devi died while worshiping. P.W.11 Narmadesdhwar Thakur who is cousin of Surendra Kumar Thakur (P.W.3) has stated in paragraph 6 of his evidence that his statement was not taken by the Investigating Officer under Section 161 of the Code of Criminal Procedure meaning thereby this witness, for the first time, has deposed in court, so his evidence has to be ignored. Even if, for the sake of argument, the evidence of this witness P.W.11 is looked into, then it is apparent that he came later on and unanimous view of the assembled persons was that Annapoorna Devi has died while worshiping. P.W.12 Kusheshwar Nath Singh, Inspector of Police, has stated that while he was inspecting the place of occurrence in respect to an U.D.Case a shelf was found and when it was broken, then the ornaments, cash and key bunch were found missing. 16. P.W.12 Kusheshwar Nath Singh, Inspector of Police, has stated that while he was inspecting the place of occurrence in respect to an U.D.Case a shelf was found and when it was broken, then the ornaments, cash and key bunch were found missing. 16. Learned counsel for the appellants has submitted that in absence of post mortem it cannot be presumed that the victim has died on account of burn injury as cause of death has not been brought on record and in absence of post mortem report, no order of conviction can be recorded. In this connection, he placed reliance upon the decisions of this Court reported in 2006(3) Cri.L.J. 2526 (Sowam Kishku.Vrs.The State of Bihar(now Jharkhand), 2007 (1) BBCJ 368 (Sallo Singh.Vrs.The State of Bihar) and 1986 PLJR 604 (Shiv Balak Rai and others.Vrs.The State of Bihar). 17. On the other hand, learned Additional Public Prosecutor has submitted that in absence of post mortem over the dead body of the deceased, order of conviction can be recorded because in the present case though there was no post mortem, the death has not been disputed. The decisions cited by the learned counsel for the appellants are applicable only when the post mortem was done but post mortem report was not produced. 18. In the present case, although the post mortem report is not on the record but the consistent case of the prosecution is that after death almost the entire body was burnt and turned into ashes and there was no remnant of any part of the body. The definite case of the prosecution is that post mortem of the dead body was not done. Therefore, in the present case, there was no post mortem, so the decisions cited by the appellants are of no help to them because the death is not under challenge. It is not under challenge that the death is on account of burning and there was no post mortem. 19. To sum up the evidences, it can be said that it has come to light that Annapoorna Devi (deceased) aged 82 years was living alone in her house in the village. Her sons, grand sons and other family members remained outside. 19. To sum up the evidences, it can be said that it has come to light that Annapoorna Devi (deceased) aged 82 years was living alone in her house in the village. Her sons, grand sons and other family members remained outside. A telephonic call was received by the sons of the deceased that their mother Annpoorna Devi has died on account of burn injury while worshiping and thereafter the sons and other family members arrived at the place of occurrence. At that very time, no suspicion was raised against any one. Only two witnesses i.e., P.Ws.4 and P.W.10 who were the domestic help of deceased lady reached in the morning of 04.01.2009. The main gate was opened by P.W.4 Ram Deyal Prasad and after pushing the room of Annapoorna Devi, both P.Ws. 4 and 10 found the room packed with smoke and Annapoorna Devi was found dead with burn injury. Their cry resulted in assemblage of a number of persons. Both the appellants met P.W.4 while he was going to village Miyadpur and it was told to Nagendra Rai that his Mausi has become Sati. There is no evidence on record to show that the appellants were present at the spot at the time of occurrence or prior to the occurrence. Initially unanimous version was that the death of Annapoorna Devi was on account of burning while performing pooja. The best evidence which has come is that the appellants, for the first time, came at the place of occurrence after meeting P.W.4 in the way. P.W.10 and other remaining witnesses have not supported any part of the occurrence because the occurrence was not witnessed by any witness and on the basis of such sketchy evidence, order of conviction could not have been passed. For proving the charge of murder, substantial evidence is required to be brought on record and the prosecution must prove that the offence was committed by the charged persons alone. The prosecution must not rule out all other possibilities and then only order of conviction can be sustained. 20. In the present case not even one witness has stated either about presence of any of the accused at the place of occurrence or nobody has witnessed the occurrence and only on the basis of remote suspicion at the belated stage the appellants were framed in. 20. In the present case not even one witness has stated either about presence of any of the accused at the place of occurrence or nobody has witnessed the occurrence and only on the basis of remote suspicion at the belated stage the appellants were framed in. The evidence against the appellants is not at all reliable, so the order of conviction cannot be sustained and the appellants deserve to be acquitted. 21. In the result, Death Reference is answered in the negative and Cr. Appeal is allowed. The order of conviction and sentence of the appellants is set aside and the appellants are acquitted of the charges. Since the appellants are in custody, they are directed to be released forthwith if not wanted in any other case.