IMPORTANT POINT
Mitigating circumstances must be duly considered before awarding death sentence.

JUDGEMENT

H.L. Gokhale J.

This Criminal Appeal No. 791/2009 filed by Vyas Kahar alias Vyas- jee, Naresh Paswan and Bugal Mochi alias Bugal Ravidas seeks to challenge the Death sentence awarded to them by the Sessions Judge-of the-Designated Court, Gaya, State of Bihar, by his judgment and order dated 11.02.2009 in C.R Case No.430 of 1992 arising out of Tekri PS Case No.19/1992. All of them have been convicted and sentenced to death under Section 3(1) of The Terrorists and Disruptive Activities (Prevention) Act, 1987 (hereafter referred to as TADA), and for life imprisonment on each count under Sections 302 read with 149, 364 r/w 149, 307 r/w 149 of Indian Penal Code (IPC in short), for rigorous imprisonment for 10 years under Section 436 r/w 149 IPC, and rigorous imprisonment for 1 year under Section 435 r/w 149 IPC. The Death Reference Case (R) No.2 of 2011 arises out of the award of death sentence made by the said learned Judge under Section 366 of the Code of Criminal Procedure, 1973 (Cr.P.C.) r/w Section 19 of TADA.

The initiation of prosecution

2. As per the First Information Report (FIR) dated 13.02.1992, there was a gruesome carnage in which 35 persons were killed, and 7 persons were injured. All of them belonged to the Bhumihar community of village Bara, police station Tekari, District Gaya, State of Bihar. The FIR was lodged on the basis of the fard-bayan of the informant Satendra Kumar Sharma who had stated that at 9:30 pm on 12.02.92, when the informant was preparing to go to bed, he heard sounds of explosions and firing. He saw the village ablaze. About 10-15 unknown people knocked at the door of his house violently, and told him that they had come to pick up one Dayanand and Haridwar Singh, as according to them they were hidden in one of the houses. When the informant opened the door, he was forcibly taken to the north-eastern side of the village, near a temple. He found many of his relatives sitting there, and their hands were tied at the back by the extremists. Soon thereafter 5-6 people including one of the appellants, viz. Bugal Mochi came there, and told the other extremists to bring all those people near the canal since their leader one Kirani Yadav had directed so. The ladies were sent home, and these people were taken near the canal. The informant claims that he had overheard the extremists saying that they did not intend to spare any person belonging to the Bhumihar caste. Some firing was heard from the west, and some of the extremists, including Bugal Mochi fearing the arrival of police started slitting the necks of people. The informant somehow managed to escape, though he lists some 37 persons whose dead bodies he claims to have seen. He also mentions the name of 8 injured people. The extremists retreated soon after the arrival of police, shouting slogans of “MCC (Maoist Communist Centre) zindabad”. According to him there were about 500 extremists in all, out of whom some 300 were armed with firearms and explosives, and many were in police uniform. He named 34 people in the FIR including two of the appellants viz. Vyas Ram and Bugal Mochi, but the name of Naresh Paswan is not mentioned.

3. On the statement of the informant, the police registered the case under Sections 3, 4 and 5 of TADA, and under Sections 147, 148, 149, 302, 307, 326, 436, 452, 341 and 342 of IPC. During the investigation, many arrests were made, and the confessional statement of Bihari Manjhi was recorded. After further investigation the charge-sheet was submitted against as many as 119 persons, out of whom 13 were brought to trial, showing the remaining persons as absconders.

Proceeding of the trial at the earlier stage

4. The learned Designated Judge who conducted the trial of the Case C.R. No.430 of 1992, by his judgment and order dated 8.6.2001, acquitted four of these accused viz. Nanhey Yadav, Nanak Teli, Naresh Chamar and Ramashish Mahto. Four other accused viz. Krishna Mochi, Dharmendra Singh alias Dharu Singh, Nanhey Lal Mochi