SHIBU SOREN Vs. C B I
LAWS(DLH)-2007-8-187
HIGH COURT OF DELHI
Decided on August 22,2007

SHIBU SOREN Appellant
VERSUS
C.B.I. Respondents

JUDGEMENT

R.S.SODHI, J. - (1.) Criminal Appeal Nos.64 of 2007, 158 of 2007 and Criminal Revision No. 99 of 2007 seek to challenge judgment and order of Additional Sessions Judge, Tis Hazari Courts, Delhi, in Sessions Case No.3 of 2006, arising out of F.I.R. being R.C. No.5 (S)/96-SIU- (XI)/CBI/New Delhi, whereby learned judge vide his judgment dated 28.11.2006, while acquitting Suni! Khaware and Ashish Thakur, has convicted the appellants, namely, Shibu Soren, for an offence under Section 120-B read with Section 364/302 IPC; Nand Kishore Mehta @ Nandu under Section 120- B read with Section 364/302 IPC and for substantive offence under Section 302/201 IPC; Shalendra Bhattacharya under Section 120-B read with Section 364/302 IPC and for substantive offence under Section 201 IPC; Ajay Kumar Mehta @ Dilip under Section 120-B read with Section 364/302 IPC and for substantive offence under Section 201 IPC and Pashupati Nath Mehta @ Posho under Section 120-B read with Section 364/302 IPC and for substantive offence under Section 201 IPC. Further, vide his order dated 5.12.2006 has sentenced Shibu Soren to life imprisonment with fine of Rs.5 lacs and in default of payment of fine, further Rigorous Imprisonment for one year under Section 120-B read with Section 364/302 IPC. Out of the fine, the entire amount was to be paid as compensation to the family of the deceased in proportions mentioned therein. Nand Kishore Mehta @ Nandu was awarded sentence of imprisonment for life besides fine of Rs. 10,000/- and in default, shall undergo Rigorous Imprisonment for one year under Section 120-B read with Section 364/302 IPC. He was further sentenced to imprisonment for life with fine of Rs.10,000/- and in default of payment, shall undergo Rigorous Imprisonment for one year for substantive offence under Section 302 IPC as also Rigorous Imprisonment for three years and fine of Rs.5,000/- and in default, further Rigorous Imprisonment for six months for substantive offence under Section 201 IPC. Shalendra Bhattacharya was awarded sentence of imprisonment for life besides fine of Rs.10,000/- and in default, shall undergo Rigorous Imprisonment for one year under Section 120-B read with Section 364/302 IPC. He was further sentenced to undergo Rigorous Imprisonment for three years and fine of Rs.5,000/- and in default, further Rigorous Imprisonment for six months for substantive offence under Section 201 IPC. Ajay Kumar Mehta @ Dilip was awarded sentence of imprisonment for life besides fine of Rs.10,000/- and in default, shall undergo Rigorous Imprisonment for one year under Section 120-B read with Section 364/302 IPC. He was further sentenced to undergo Rigorous Imprisonment for three years and fine of Rs.5,000/- and in default, further Rigorous Imprisonment for six months for substantive offence under Section 201 IPC. Pashupati Nath Mehta @ Posho was awarded sentence of imprisonment for life besides fine of Rs.10,000/- and in default, shall undergo Rigorous Imprisonment for one year under Section 120-B read with Section 364/302 IPC. He was further sentenced to undergo Rigorous Imprisonment for three years and fine of Rs.5,000/- and in default, further Rigorous Imprisonment for six months for substantive offence under Section 201 IPC. All sentences were directed to run concurrently.
(2.) Brief facts of the case as have been noted by learned Additional Sessions Judge in his judgment under challenge are as follows :- "Seven accused persons, namely, (1) Shibu Soren, (2) Sunil Khaware, (3) Ashish Thakur, (4) Nand Kishore Mehta @ Nandu, (5) Shalendra Bhattacharya, (6) Ajay Kumar Mehta @ Dilip and (7) Pashupati Nath Mehta @ Posho have been chargesheeted by C.B.I. for facing trial in a case bearing RC No. 5(S)-96/SIU/XI, New Delhi for offence punishable 364/302/201/120-B I.P.C. on the basic accusation of having hatching criminal conspiracy by all the accused being masterminded by accused Shibu Soren for abduction and murder of Sh. Shashi Nath Jha, P.A. of accused Shibu Soren and in pursuance of said conspiracy, abducting said Sh. Shashi Nath Jha by accused Sunil Khaware and Ashish Thakur on 22.5.94 at about 11.00 p.m. near Dhaula Kuan and thereafter committing murder of said Sh. Shashi Nath Jha by striking heavy iron rod on his head by accused Nand Kishore Mehta @ Nandu inside his house in village Tikrac Toli, Distt. Ranchi, at about midnight in the last week of May, 1994 and thereafter removing dead body of said Sh. Shashi Nath Jha by accused Nand Kishore Mehta @ Nandu, Ajay Kumar Mehta @ Dilip, Pashupati Nath Mehta @ Posho, Shalendra Bhattacharya besides one lady and two other unknown persons and concealing the dead body of said Sh. Shashi Nath Jha by burying it near brick klin of accused Nand Kishore Mehta @ Nandu and subsequently removing the said dead body and burying it at jungle in Piska Bagan, Piska Nagri, Distt. Ranchi from where the remains dead body was ultimately exhumed on 13.8.98 by the CBI team in the presence of independent witnesses and Executive Magistrate. The precise case or the prosecution as found reflected from the case record is as given below :- Shashi Nath Jha (deceased) being working as P.A./P.S. to accused Shibu Soren, the then M.P. from Bihar was handling the confidential and secret matter and was having full knowledge of financial transactions of accused Shibu Soren. That on 26.7.93 'No Confidence Motion' was tabled in Lok Sabha against the minority Congress (I) Government led by Sh. P.V. Narsimha Rao and it is alleged that in order to defeat the said 'No Confidence Motion', support of four J.M.M. M.P.s including Shibu Soren was mobilised by giving them illegal gratification of huge amount and a separate chargesheet relating to said case bearing RC No.5A/(96)/ACU/VIII was filed by C.B.I. before the Special Judge, Delhi. It is further alleged that said Sh. Shashi Nath Jha (deceased) being full aware of illegal gratification as received by accused Shibu Soren, had been demanding a substantial share out of the said amount from Shibu Soren, who was evading to part with. It is also alleged that said Sh. Shashi Nath Jha was apprehensive of safety to his life from Shibu Soren prior to 3-4 months of the incident as Sh. Shashi Nath Jha had disclosed about this aspect to his mother Smt. Priyambda Devi (PW-20) and to Sh. Sushil Kumar (PW-36). It is further alleged that on 22.5.1994 at about 11:00 p.m. Sh. Shashi Nath Jha visited the tea shop at Sh. Balli Karan Pandey (PW-3) at Dhaula Kuan near petrol pump and purchased cigarette. In the meanwhile, a white ambassador car stopped opposite said shop and two persons, came out of the said car and insisted for purchasing cigarette and Bali Karan Pandey refused to oblige as he had closed the shop but on the request of Sh. Shashi Nath Jha being known to Bali Karan Pandey, he gave cigarette to them. Said two persons being known to Shashi Nath Jha talked with Sh. Shashi Nath Jha and after sometime suddenly they pushed Sh. Shashi Nath Jha inside the car and said car sped away from the spot. As said Sh. Shashi Nath Jha was found missing, missing report of Sh. Shashi Nath Jha was got lodged by his brother Sh. Amar Nath Jha (PW-19) on dt. 24.5.1994 at police post North Avenue vide D.D. No. 19, copy of which is Ex. PW 45/B but said Sh. Shashi Nath Jha was not found traceable. Thereafter, on the basis of written complaint dt. 02.6.199,4 of Sh. Amar Nath Jha (PW-19), which is Ex. PW-19/A, F.I.R. bearing No.168/94, U/S 365 IPC was registered on 02.6.1994 at P.S. Parliament Street, New Delhi and copy of said FIR is Ex. PW-43/A. As the local police was clueless in its investigation, in pursuance of orders dt. 14.2.1996 as passed by Hon'ble High Court of Delhi in Crl. Writ No.390/95 as filed by Smt. Priyambda Devi (PW-20), mother of the deceased, investigation of that case transferred to Crime Branch. But, even the Crime Branch also could not get any positive result, said mother of deceased filed another Crl. Writ registered as Cr. (Writ) No.620/96 praying for transfer of investigation by an independent agency. Thereafter, in pursuance of the order dated 10.10.1996 as passed by Hon'ble High Court of Delhi in criminal writ petition No.620/96, the investigation of this case was transferred to C.B.I. and fresh F.I.R. bearing RC No.5 (S)-96/SIU/SI was registered by C.B.I. on dt. 16.10.96, copy of which is Ex. PW-45/A. Hon'ble High Court of Delhi also monitored the investigation by C.B.I. in this case. It is further alleged that Sh. Shashi Nath Jha (deceased) after being abducted from Delhi was taken to the village Tikra Toli, District Ranchi and he was seen there in the company of leaders of Jharkhand Mukti Morcha (J.M.M.) Party including Nand Kishore Mehta, Shalendra Bhattacharya, Ajay Kumar Mehta and Pashupati Nath Mehta in the last week of May, 1994, on the day of football tournament in the village. Said Sh. Shashi Nath Jha was thereafter taken to the house of Nand Kishore Mehta, where liquor and meat were served at the party. On the said night, Charu Oraon (PW-4) also attended the said party at the house of accused Nand Kishore Mehta and after taking liquor he had fallen asleep and at about midnight on hearing the scream of "BACHAO BACHAO", he woke up and saw Sh. Shashi Nath Jha lying on the ground and Nand Kishore Mehta hitting him with a heavy iron rod on his head. Thereafter, Sh. Shashi Nath Jha started bleeding from his head and became unconscious. Then, Sh. Charu Oraon (PW-4) being terrified left the house of Nand Kishore Mehta @ Nandu with the help of accused Pashupati Nath Mehta @ Posho, It is further alleged that Sh. Sudershan Soni (PW-6), neighbour of accused Nand Kishore Mehta, also woke up on hearing scream in the said midnight and came out of his house and saw that body of Shashi Nath Jha being removed from the house of accused Nand Kishore Mehta by accused Nand Kishore Mehta @ Nandu, Ajay Kumar Mehta @ Dilip, Pashupati Nath Mehta, and placing the body of Shashi Nath Jha in an Ambassador Car, waiting outside. Shalendra Bhattacharya along with one lady also came out from the house of Nand Kishore Mehta and sat in said car, which left the spot being followed by accused Nand Kishore Mehta and Pashupati Nath Mehta on a motorcycle towards Ranchi Road. It is further alleged that on the next morning some villagers had noticed half buried human body near a pond in the village near brick klin of accused Nand Kishore Mehta @ Nandu, being snatched by dogs and when Dr. Gautam Sharma (PW-5) enquired about it from accused Nandu, he advised him to keep quiet and mind his own business. It is further alleged that thereafter body of Sh. Shashi Nath Jha was shifted from the aforesaid place to a nearby safer place and buried at Piska Bagan, Piska Nagri (Distt. Ranchi) where from remains of dead body was exhumed by the C.B.I. team on 13.8.1998 in the presence of Sh. Ravinder Nath Panda, Executive Magistrate (PW-35), Ex-mukhia of village Sh. Jag Niwas Mehto (PW-12), Dr. Sushil Kumar Shukla (PW-30), Sh. U.K. Goshwami, D.S.P., C.B.I. (PW-46) and Inspector V.K. Pandey (PW-45) vide Recovery Memo (Panchnama) Ex. PW 30/A. Postmortem of the said recovered remains of skeleton was got conducted on the same day at Ranchi Medical Hospital through Dr. Ajit Kumar Chaudhary (PW-17) vide Post Mortem Report Ex. PW 17/A and as per said report age, sex and injury over the skull and time of death found matched with that of Sh. Shashi Nath Jha. The recovered "Skull" and other articles were sent to Andhra Pradesh Forensic Science Laboratory, Hyderabad and on the basis of the superimposition test with the enlarged photograph of Sh. Shashi Nath Jha vide report Ex. PW 16/A, it was opined that the said skull could be of the individual as per photograph mark item - 11 (photograph of Sh. Shashi Nath Jha) and the injuries on that skull, were ante mortem and must have been caused at the time of death. It is further alleged that on 2.6.1994 when Amar Nath Jha (PW-19), brother of the deceased along with his mother Smt. Priyambda Devi (PW-20) and Kumari Kavita (PW-24) and Kumari Preeti (PW-25), daughters of said Sh. Shashi Nath Jha met accused Shibu Soren at his residence, accused Shibu Soren is alleged to have stated that Sh. Shashi Nath Jha has already died and said Shibu Soren also offered to get admitted both the daughters of Sh. Shashi Nath Jha in Day Boarding School and to bear their expenses. It is further alleged that when family members of Sh. Shashi Nath Jha requested accused Shibu Soren to get hand over the investigation of the case to C.B.I. and to give media publicity, Shibu Soren was found evading to do so. It is further alleged that during investigation it revealed that accused Sunil Khaware and Ashish Thakur, are the persons, who abducted Sh. Shashi Nath Jha from Dhaula Kuan on 22.5.1994. Efforts were made for their interrogation and thereafter Sunil Khaware was arrested on 29.11.1997 and Ashish Thakur surrendered in the court on 23.1.1998. Accused Sunil Khaware and Ashish Thakur declined to participate in the T.I.P. on the ground that they have been already shown to the witness. During the course of investigation, other accused persons were arrested and interrogated, statement of the relevant witnesses were recorded, necessary steps towards investigation were carried out by the I.O. and after the conclusion of the investigation, chargesheet against aforesaid seven accused was filed by the C.B.I. before the court of Ld. C.M.M., Delhi on 10.11.1998."
(3.) Central Bureau of Investigation (C.B.I.) in order to establish its case examined as many as 46 witnesses. Of these PW-1, Lekhraj, who does not support the prosecution, was allegedly witness to the T.I.P. of the accused Sunil Khaware at C.B.I. Office, New Delhi on 10.12.1997. PW-2, Anil Kumar Pancholi, also does not support the prosecution and is an alleged witness to T.I.P. of accused Sunil Khaware at C.B.I. Office, New Delhi on 10.12.1997. PW-3, Bali Karan Pandey; PW-4, Charu Oraon; PW-5, Dr. Gautam Sharma and PW-6, Sudershan Soni are the material witnesses who have been pressed into service to establish the case of the prosecution on the facts of conspiracy, abduction and murder of Shahi Nath Jha. PW-7 is Subodh Krishan Prasad, Sub-Inspector, who took photographs of the exhumed body from Piska Bagan, Piska Nagri. PW-8, Jumman Ali, is the owner of the plot where football match was held and which was attended by Shahi Nath Jha along with other leaders of the Jharkhand Party. PW-9, Mohd. Mumtaz Ahmed Khan, deposes to the allocation of party ticket of Nand Kishore Mehta for the Assembly Election from Hatia Constituency by the J.M.M. Party, Executive Committee, headed by Shibu Soren. PW-10, Vijay Raje, Junior Engineer, C.P.W.D. from Ranchi, prepared the site plan of the house of Nand Kishore Mehta @ Nandu as also of the place of recovery of the skeleton on the pointing of Charu Oraon, PW-4 and V.K. Pandey, PW-45. PW-11, Shamim Akhtar, deposes to have seen one dark complexion lady Tara Devi with Shalendra Bhattacharya travelling in a white Ambassador Car in May, 1994 in the village. PW-12, Jagniwas Mehto, is a witness of exhumed human skeleton from Piska Bagan, - Piska Nagri on 13.8.1998. PW-13, Dr. S.K. Lahiri, Senior Scientific Officer, C.F.S.L. Lodhi Road, deposes to the Polygraphy Test conducted and the report prepared. PW-14, Ram Dev Gop and PW-15, Kumari Kamla, are the formal witnesses. PW-16, Dr. T.S.N. Murthy, Joint Director, F.S.L., Hyderabad, conducted the superimposition test on the skull of the exhumed skeleton and prepared his report Exhibit PW-16/A with the opinion that the skull could belong to Shashi Nath Jha, the individual in the photograph. PW-17, Dr. Ajit Chaudhary from Department of Forensic Medicine, Rajendra Medical College, Ranchi, deposes to the postmortem conducted on the skeleton on 13.8.1998 and proves his report Exhibit PW 17/A. The report indicates the sex, age, injury and the time of death. PW-18, Vijay Nath Jha, younger brother of Shashi Nath Jha, deposes to an offer made to him of Rs.3-4 lacs to withdraw the complaint through Bhaskar on behalf of Shibu Soren. PW-19, Amar Nath Jha, is the elder brother of Shashi Nath Jha. He deposes to the complaint filed by him which was recorded as D.D. No. 19 dated 24.5.1994 at P.P. North Avenue, Delhi, Exhibit PW 45/B as also another complaint dated 2.6.1994 Exhibit PW 19/A which form the basis of the F.I.R. Exhibit PW 43/A, registered at Police Station Parliament Street, New Delhi. PW-20, Priyambda Devi, who is the mother of Shashi Nath Jha, deposes to the effect that Shashi Nath Jha apprehended danger from Shibu Soren 3 or 4 months prior to the incident. PW-21, Dhani Ram, who is a taxi driver, deposes to having dropped Shashi Nath Jha at Dhaula Kuan bus stand on 22.5.1994 at about 9:15 p.m. PW-22, Pawan Kumar Sharma, deposes to his friendship with Shashi Nath Jha and to the fact of Shashi Nath Jha being PA to Shibu Soren. PW-23, Satbir Ahmed, deposes to having seen Shashi Nath Jha on the evening of 22.5.1994. PW-24, Kumari Kavita, daughter of Shashi Nath Jha, deposes to the effect that on 2.6.1994, Shibu Soren stated to her sister Preeti and grandmother that Shashi Nath Jha was dead as also reluctance of Shibu Soren for investigation to the C.B.I. as also the help sought to be rendered by Shibu Soren to the child of Shashi Nath Jha. PW-25, Kumari Preeti's statement is on the same lines as of PW-24, Kumari Kavita. PW-26, Shashi Kumar Tripathi, deposes to have seen Shashi Nath Jha with Sushil Kumar. PW-27, S.I. Sukhi Ram, made an endorsement Exhibit PW 27/A on the complaint of Amar Nath Jha, PW-19, and got the F.I.R. registered at Police Station Parliament Street on 2.6.1994. PW-28, Viney Kumar Gupta, learned Metropolitan Magistrate, recorded the statement under Section 164 of Code of Criminal Procedure of Charu Oraon,(PW-4), Priyambda Devi (PW-20), Kumari Kavita (PW-24) and Kumari Preeti (PW-25). PW-29, Asha, deposes about the visit of Shashi Nath Jha to their office on 20.5.1994. PW-30, Dr. Sushil Kumar Shukla, Medical Officer from Sadar Hospital, Ranchi, is a Panch witness to the recovery memo Exhibit PW 30/A in respect of the skeleton exhumed from Piska Bagan on 13.8.1998. PW-32, G.R. Bhashkar, Retired Principal, Hyderabad, examined the skull and proved his report Exhibit PW 16/A. He also proved Clarificatory Report Exhibit PW 32/A. PW-33, Dr. K.C. Gandhi, Director Andhra Pradesh State, Forensic Science Laboratory, Hyderabad, deposes that the test conducted by T.S.N. Murthy (PW-16) were under his supervision and his report Exhibit PW 16/A. PW-35, Ravinder Nath Pandey, A.D.M., witnesses the recovery of skeleton ' from Piska Bagan on 13.8.1998. PW-36, Sushil Kumar, is a Chartered Accountant, who deposes to the deposit of Rs.30 lacs on 31.7.1993 at Punjab National Bank, Nauroji Nagar Branch, New Delhi by Shibu Soren. He also deposes to the events in the third week of January, 1994 where Shashi Nath Jha expressed his apprehension of danger to his Ifie from Shibu Soren. PW- 37, Dr. B.P. Sinha, deposes to be the owner of the plot from where human skeleton was recovered on 13.8.1998. PW-38, Mukti Tirthi, deposes to the visit of Shashi Nath Jha to his office on 20.5.1994. PW-39, Inspector R.L. Yadav, was an associated Investigating Officer as also witness to the search of residence of Sunil Khaware on 29.11.1997. PW-40, Ramesh Prasad Sahu, deposes that Nand Kishore Mehta is a member of the Jharkhand Mukti Morcha Party and Shibu Soren is its leader as also to the visit of Shibu Soren and his party members to the house of Nand Kishore Mehta. PW-41, Vijay Mahto, is the neighbour of Nand Kishore Mehta, who deposes to the same effect as deposed by Ramesh Prasad Sahu, PW-40. PW-42, S.I. Satyapal Singh, deposited the case property at F.S.L., Hyderabad, vide Exhibit PW 33/A and that the case property, while in his custody, remained intact. PW-43, S.I. Inderwati, recorded the F.I.R. No. 168 of 1994, under Section 365 IPC, Police Station Parliament Street on 2.6.1994. PW-44, Hemant Soren, son of Shibu Soren, deposes to his relations with Shashi Nath Jha. PW-45, Vinod Kumar Pandey, is the Investigating Officer while PW-46, U.K. Goshwami, D.S.P., C.B.I., New Delhi, deposes to have assisted Vinod Kumar Pandey (PW-45), Investigating Officer.;


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