Judgment:
1. The death reference and the appeal are against the judgement of conviction and sentence dated 15.12.2008 of the 3rd Additional Sessions Judge, Naugachia (Bhagalpur) in Sessions Trial No. 743 of 2005 whereby all the three convicts have been convicted under Sections 302, 364A, 120B and 201 IPC. Each of the three appellants has been sentences to. death under Section 302, 364A and 120B IPC. No separate sentence was passed under Section 201 IPC.
2. The prosecution case as per the fardbeyan lodged by the informant, namely, Sanjay Kumar Thakur(P.W.7) was that his son Sanu @ Samarjit Thakur aged 9 years, who was a student of class IVth, had gone out towards fields in the eastern side with Mangan. Thakur (appellant) aged 18 years, but he did not come back. In, course of search, when the informant questioned Mangan Thakur about Sanu @ Samarjit he (Mangan Thakur)stated that he had taken Sanu @ Samarjit to Kalu Chak and had handed him over to Mangla Harijan and Mangan Harijan. When the informant proceeded towards Kalu Chak with Mangan Thakur, Magan Thakur slipped out on some pretext. The informant alleged that Mangan Thakur, Mangan Harijan and Vijay Singh @ Vijaya had kidnapped his son for ransom.
3. In course of investigation it also appeared to be the further case that Mangla Thakur was apprehended from his Nanihal and he confessed that he along with Golha Thakur @ Dhirendra Thakur had taken Sanu @ Samarjit away and had killed him and had thrown the dead body in a bush near the house of Birendra Jha. This information was passed on to Gopalpur police. The Gopalpur police is also said to have apprehended Kedar Thakur who is said to have made similar confession as that of Mangan Thakur. It is further said that the police recovered the dead body consequent upon the confessions.
4. In course of hearing we noticed that as amongst other evidence the most striking part of the evidence was that the two convicts namely, Mangan Thakur and Kedar Thakur, had confessed before police and the villagers and their confessions led to the recovery of the dead body. This part of the evidence has been relied upon by the learned trial court for basing the conviction.
5. But, during hearing while perusing the statements of the accused/convicts as recorded by the learned trial court under Section 313 Cr.P.C. We found that the learned trial court had dealt with this part of the proceedings in its judgment in a very casual manner. Some simple questions have been asked which inspires a feeling that the learned trial court did not try to go through the evidence for the purpose of ascertaining as to what important facts and circumstances had come out in the evidence, which could be the basis of a conviction and which were necessarily to be put to the accused by way of question for the purpose of enabling the accused to explain them.
6. On going through the evidence of the witnesses, we notice that the P.W.1, P.W.2, P.W.4, P.W.7 and 1.0. (P.W.10) have stated in their evidence that the accused/convict Mangan Thakur and Kedar Thakur had confessed their guilt about having concealed the dead body at a particular place and that on the basis of such confession the dead body was recovered. The triad court has relied upon this part of the evidence for passing order of conviction and sentence. But from perusal of the statement of the convicts as recorded by the trial court we find that these circumstances were not at all put to the accused/convicts by way of question under Section 313 Cr.P.C. in order to enable them to explain it. This is a serious lacuna which vitiates the Judgment of conviction and sentence. In such view of the matter, we feel that the order of conviction and sentence under challenge herein cannot be sustained. But in view of the glaring mistake and the nature of the offence and the facts and circumstances of the case taken it in its totality, we find that it will not be proper to pass an order of acquittal and consign the matter, without recording any finding, without directing the learned trial Judge to pass a fresh Judgment after questioning the accused over this circumstance after obtaining the reply and explanation of the accused in light of the evidence on record. In the interest of justice, we set aside the conviction and sentence and remit the matter back to the trial court for proceeding with the trial from the stage of recording of the statements of the accused under Section 313 of the Cr.P.C. The trial court will properly read the evidence of the witnesses to consider the important facts and circumstances of the case and question the accused persons over it in order to enable them to reply to the matter and then after hearing the parties and in the special circumstances of this particular case and, also, after affording an opportunity of defence evidence to the accused, if they like to adduce them, then after hearing the parties to pass a fresh Judgment according to law. Thus, the Judgment and order of sentence passed by the learned trial court below is I hereby set aside and the. matter is remitted back in terms as indicated above.
7. The appeal is accordingly disposed of.
8. The fees of learned Amicus Curiae Sri Shivendra Kumar Sinha will be paid by the Patna High Court Legal Services Committee.