Patna High Court
Munni Devi vs The State Of Bihar on 11 December, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Rajesh Kumar Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.543 of 2018
Arising Out of PS. Case No.-270 Year-2015 Thana- BAHERI District- Darbhanga
======================================================
Nikesh Dubey Son of Vijay Dubey resident of Village - Koigama, Police
Station - Chakiya, District - East Champaran at Motihari.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 455 of 2018
Arising Out of PS. Case No.-270 Year-2015 Thana- BAHERI District- Darbhanga
======================================================
Munni Devi Wife of Sanjay Lal Dev, Resident of Village- Shivram, P.S.-
Baheri, District- Darbhanga.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 523 of 2018
Arising Out of PS. Case No.-270 Year-2015 Thana- BAHERI District- Darbhanga
======================================================
Mukesh Pathak @ Chutul Pathak @ Aditya Kumar S/o Late Lalan Pathak,
R/o Vill.- Maruabad, P.S.- Mehsi, District- East Champaran at Motihari.
Patna High Court CR. APP (DB) No.543 of 2018 dt.11-12-2024
2/38
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 567 of 2018
Arising Out of PS. Case No.-270 Year-2015 Thana- BAHERI District- Darbhanga
======================================================
Vikash Jha @ Kalia Son of Subodh Jha, Resident of Village- Bathnaha, Police
Station- Bathnaha, District- Sitamarhi.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 577 of 2018
Arising Out of PS. Case No.-270 Year-2015 Thana- BAHERI District- Darbhanga
======================================================
Pintu Lal Dev @ Ajay Kumar Son of Late Mahesh Lal Dev, Resident of
Village Shivram, P.S. Baheri, District- Darbhanga.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Patna High Court CR. APP (DB) No.543 of 2018 dt.11-12-2024
3/38
with
CRIMINAL APPEAL (DB) No. 579 of 2018
Arising Out of PS. Case No.-270 Year-2015 Thana- BAHERI District- Darbhanga
======================================================
Sanjay Lal Dev Son of Dinesh Lal Dev @ Parmod Kumar, Resident of
Village- Shivram, P.S. Baheri, District- Darbhanga.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 605 of 2018
Arising Out of PS. Case No.-270 Year-2015 Thana- BAHERI District- Darbhanga
======================================================
Pintu Jha @ Pintu Kumar Jha S/o Pawan Jha, R/o Vill.- Belwa, P.S.- Piprahi,
District- Sheohar.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 789 of 2018
Arising Out of PS. Case No.-270 Year-2015 Thana- BAHERI District- Darbhanga
======================================================
Pintu Tiwari @ Pintu Tiwary S/o Sri Ashok Tiwari, R/o Vill.- Rashidpur, P.S.-
Sheohar, District- Sheohar.
Patna High Court CR. APP (DB) No.543 of 2018 dt.11-12-2024
4/38
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 543 of 2018)
For the Appellant/s : Mr. Sunil Kumar Pathak, Adv.
For the State : Mr. Abhimanyu Sharma, APP
(In CRIMINAL APPEAL (DB) No. 455 of 2018)
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Ms. Kiran Kumari, Adv.
Mr. Md. Imteyaz Ahmad, Adv.
Mr. Anisur Rahman, Adv.
Mr. Ritwik Thakur, Adv.
Ms. Vaishnavi Singh, Adv.
For the State : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 523 of 2018)
For the Appellant/s : Mr. Surendra Singh, Sr. Adv.
Mr. Sunil Kumar Pathak, Adv.
For the State : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 567 of 2018)
For the Appellant/s : Mr. Ashhar Mustafa, Adv.
Mr. Vikash Kumar Jha, Adv.
Mr. Ashish Kumar Ranjan, Adv.
For the State : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 577 of 2018)
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Ms. Kiran Kumari, Adv.
Mr. Md. Imteyaz Ahmad, Adv.
Mr. Anisur Rahman, Adv.
Mr. Ritwik Thakur, Adv.
Ms. Vaishnavi Singh, Adv.
For the State : Mr. Abhimanyu Sharma, APP
(In CRIMINAL APPEAL (DB) No. 579 of 2018)
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Ms. Kiran Kumari, Adv.
Mr. Md. Imteyaz Ahmad, Adv.
Mr. Anisur Rahman, Adv.
Mr. Ritwik Thakur, Adv.
Ms. Vaishnavi Singh, Adv.
For the State : Mr. Satya Narayan Prasad, APP
(In CRIMINAL APPEAL (DB) No. 605 of 2018)
For the Appellant/s : Mr. Pratik Mishra, Adv.
Mr. Vatsal Vishal, Adv.
Patna High Court CR. APP (DB) No.543 of 2018 dt.11-12-2024
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Ms. Anita Kumari, Adv.
For the State : Mr. Mayanand Jha, APP
(In CRIMINAL APPEAL (DB) No. 789 of 2018)
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Ms. Kiran Kumari, Adv.
Mr. Md. Imteyaz Ahmad, Adv.
Mr. Anisur Rahman, Adv.
Mr. Ritwik Thakur, Adv.
Ms. Vaishnavi Singh, Adv.
For the State : Mr. Ajay Mishra, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 11-12-2024
The afore-captioned eight appeals have been
heard together and are being disposed of by this common
judgment.
2. We have heard Mr. Surendra Singh, Senior
Advocate and Mr. Ajay Kumar Thakur; Mr. Sunil Kumar
Pathak; Mr. Ashhar Mustafa and Mr. Pratik Mishra,
Advocates for the appellants. The State is represented by
Mr. Abhimanyu Sharma, Mr. Dilip Kumar Sinha, Mr.
Satya Narayan Prasad, Mr. Mayanand Jha and Mr. Ajay
Mishra, the learned APPs.
3. The appellants/Nikesh Dubey, Mukesh Pathak
and Vikash Jha have been convicted under Sections 302,
Patna High Court CR. APP (DB) No.543 of 2018 dt.11-12-2024
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387/109, 386/116 and 120B of the IPC and Section
27(2) of the Arms Act vide judgment dated 26.02.2018
passed by the learned Additional Sessions Judge-V,
Darbhanga, in connection with Sessions Trial No. 146 of
2016, arising out of Baheri P.S. Case No. 270 of 2015.
By the same judgment, appellants/Munni Devi, Pintu Lal
Dev, Sanjay Lal Dev, Pintu Jha and Pintu Tiwari have
been convicted under Sections 302/109, 387/109,
386/116 and 120B of the IPC. By order dated
07.03.2018
, they have been sentenced to undergo R.I.
for life for the offence under Section 302 of the IPC. The
appellants have also been sentenced for rest of the
offences. They have been saddled with different amounts
of fine with respect to all the offences including for the
offence of murder.
4. The sentences have been ordered to run
concurrently.
5. Along with the appellants, six other accused
persons were also tried but co-accused Subodh Dubey @
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Ajay Kumar Dwivedi, Rishi Jha, Anchal Jha and Tuna Jha
were acquitted for the paucity of evidence against them.
Out of ten accused persons including the appellants who
have been convicted, Abhishek Jha and Santosh Jha died
during the pendency of their respective appeals preferred
before this Court.
6. As such, the appeals of Abhishek Jha and
Santosh Jha stood abated.
7. The appellants have been charged for
conspiring and killing the two engineers of BSC C&C JV
company, a construction company which was awarded the
contract for constructing the road between Baheri and
Bahera, falling under the territorial jurisdiction of Baheri
police station. The two engineers viz. Mukesh Kumar and
Brajesh Kumar were killed on 26.12.2015 at 01:00 P.M.
at the construction site.
8. The FIR was lodged by Dhiraj Singh (P.W.
15), the nephew of one of the deceased/Mukesh Kumar.
He has alleged that on 26.12.2015 at about 01:00 P.M.,
Patna High Court CR. APP (DB) No.543 of 2018 dt.11-12-2024
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while the deceased engineers were at the construction
site, four unknown persons came on motorcycles and
started firing indiscriminately, injuring and killing both the
engineers. The marauders thereafter left the scene. The
two injured were brought by the company officials to
Darbhanga Medical College & Hospital (DMCH) but on
way, they succumbed to the injuries. While the
miscreants left the place of occurrence, they threw
pamphlets, hailing appellants/Mukesh Pathak and Vikash
Jha.
9. On the basis of the aforenoted fardbeyan of
P.W. 15, Baheri P.S. Case No. 270 of 2015 was
registered for investigation under various Sections of the
IPC and the Arms Act against unknown persons.
10. It appears from the records that the news
regarding this incident was conveyed to one Mritunjay
Pandey (P.W. 2), a Project Manager of the company, who
was present at a different site but only 12 to 15 kms.
away. He brought the injured/Mukesh and Brajesh to
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DMCH, where they were declared dead.
11. The fardbeyan was countersigned by Rupesh
Kumar (P.W. 3) who though claims to be an eye witness
but has been declared hostile and Ramesh Kumar as well
as Anil Chandra Suman, both of whom have not been
examined at the Trial. The fardbeyan had been recorded
by ASI/Brahmdeo Prasad, who has also not been
examined. The fardbeyan was recorded in the Emergency
Ward of DMCH.
12. Shortly after the occurrence and the
registration of the FIR, one Sachchidanand Yadav (P.W.
8), a Sub-Inspector posted in Baheri Police Station visited
the P.O. and seized the pamphlets referred to above
(Material Ext. 2) and 12 fired cartridge cases of rifle and
one fired cartridge case of a pistol. It further appears that
on suspicion, because of the proclamation in the
pamphlets, investigation proceeded on the assumption
that Mukesh Pathak and Vikash Jha are behind the
occurrence. They were arrested. The names of the other
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appellants surfaced during the course of investigation.
The investigation had proceeded on the premise that the
murders were committed at the behest of one Santosh
Jha, who had set up a kind of private militia called Bihar
Peoples Liberation Army. The appellants are in some way
or the other alleged to be associated with Bihar Peoples
Liberation Army.
13. The investigations revealed that the private
army, referred to above, thrived on the extortion money
from the Road Construction companies. The
protection/extortion money was demanded from the
officials of the company viz. the Project Manager S.B.
Singh who has not been examined at the Trial; Senior
Manager, Devesh Rathore (P.W. 16) and Chief Project
Manager, B.K. Jha (P.W. 6).
14. It further came to light that
appellants/Sanjay Lal Dev, Munni Devi and Ajay Kumar
@ Pintu Lal Dev are residents of the area where the
occurrence took place; whereas the other appellants and
Patna High Court CR. APP (DB) No.543 of 2018 dt.11-12-2024
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accused persons are residents of districts Sitamarhi,
Sheohar, Motihari and Muzaffarpur. Appellants/Sanjay Lal
Dev, Pintu Lal Dev and Munni Devi are alleged to have
procured mobile telephone numbers of the officials of the
company on the asking of Santosh Jha, Mukesh Pathak
and Vikash Jha. Later, the three officials of the company,
named above, were told to pay up the extortion money.
15. The prosecution version is that amongst the
miscreants who had come to the spot, Pintu Lal Dev and
Sanjay Lal Dev pointed at the engineers (deceased),
whereafter Vikash Jha, Abhishek Jha, Nikesh Dubey and
Mukesh Pathak fired from their weapons, killing the two
deceased. Appellants/Munni Devi, Pintu Lal Dev and
Sanjay Lal Dev had arranged for accommodation of
Vikash Jha, Karan Jha, Pintu Jha and Mukesh Pathak.
They had stayed in a lodge owned by one Sanjeev Mishra.
The miscreants kept on changing their location and after
sometime, they shifted to the house of one Durga Nand
Jha, situated within the territorial jurisdiction of
Patna High Court CR. APP (DB) No.543 of 2018 dt.11-12-2024
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Laheriasarai Police Station in the district of Darbhanga.
On the disclosure of Munni Devi, a raid was conducted in
the house of Durga Nand Jha from where a paper with
mobile number 7549355779 written on it, was recovered.
It was later found out that the said mobile number was
registered in the name of one Kesho Devi, mother of
Pintu Lal Dev, who had been using the number. Two other
telephone numbers which were put on surveillance,
reflected that Santosh Jha, Munni Devi and Sanjay Lal
Dev were in constant touch with each other.
Appellant/Munni Devi is said to be the sister of Santosh
Jha. She is the wife of Sanjay Lal Dev. Ajay Kumar @
Pintu Lal Dev is the cousin of Sanjay Lal Dev. Thus,
Santosh Jha, Munni Devi, Sanjay Lal Dev and Ajay Kumar
@ Pintu Lal Dev are closely related to each other.
16. Post-mortem examination was done on the
two deceased by Dr. Ravi (P.W. 5), who found that both
the deceased had suffered several gun-shot wounds.
17. Before the Trial Court, twenty witnesses
Patna High Court CR. APP (DB) No.543 of 2018 dt.11-12-2024
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were examined and several Exhibits/Material Exhibits
were produced. The Trial Court found 10 out of 14
persons put on Trial to be guilty. Appellant/Mukesh
Pathak had absconded for a while, as a result of which his
trial was separated but was later amalgamated with the
main trial viz. Sessions Trial No. 146 of 2016.
18. In sum and substance, the case of the
prosecution is that Santosh Jha (since dead) was the
linchpin who had set up Bihar Peoples Liberation Army
and along with his associates had demanded protection
money from the construction company, which money was
never paid. The murders were executed for instilling fear
in the minds of company officials as also for their not
having paid the extortion money.
19. The appellants, however, have argued that
the prosecution has relied upon absolute guess-work and
all persons who are in some way or the other associated
or related with Santosh Jha have been made the
scapegoat. Before the Trial Court, a weird defence was
Patna High Court CR. APP (DB) No.543 of 2018 dt.11-12-2024
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taken that the management of the company itself got
their engineers killed as otherwise they would have had to
pay a penalty of Rs. 6.76 Crores because of delayed
completion of the project. There was a clause in the
agreement which stipulated a penalty of 10%, if the
project were not completed within the timeline. Penalty
wound not be payable in the event of any natural calamity
or law and order problem.
20. The other defence taken by the appellants
before the Trial Court was that (i) the informant (P.W.
15) was not present at the P.O. and, therefore his claim
of being an eye witness to the occurrence is false; (ii)
there is an interpolation in the FIR and a day’s delay in
the FIR being placed before the Magistrate; (iii) the
certificate regarding CDR of various telephone numbers
on surveillance was not in accordance with the provisions
contained in Section 65(B) of the Indian Evidence Act;
(iv) credible witnesses were not examined; (v) the
decoding of CDR reflected a patent mistake; (vi) the
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scribe of the FIR had not been examined; (vii) and the
investigator (P.W. 19) had reasons to falsely implicate
the appellants.
21. It was urged before us that Mukesh Pathak,
one of the killers, was arrested on 12.07.2016 who was
taken on police remand and interrogated by the
investigator (P.W. 19). Based on his confession (Ext. 53),
there were recoveries of firearms but that was of no value
as it did not reflect the authorship of concealment. It only
reflected his knowledge as to where the firearms were
kept. In that connection, it has been argued that based on
his confession, one pistol (Material Exhibit No. 8) was
recovered from one Vijay Kumar, who, later disclosed
about another weapon viz. AK-56 rifle (Material Exhibit 6)
which was seized from one Sanjay Jha. Neither Vijay
Kumar nor Sanjay Jha were arraigned as accused persons
in the Trial. They, in fact, were prosecuted separately for
the offence under Section 25 of the Arms Act.
22. The two weapons which were seized along
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with the fired empty cartridge cases were dispatched to
the RFSL, Patna. It was opined by the laboratory that with
those weapons only, the shots were fired and the 12 fired
cartridge cases were the ammunition.
23. It was summed up on behalf of the
appellants that the Trial Court convicted them only on the
basis of the conclusions drawn by the I.O. (P.W. 19) that
they were the members of Bihar Peoples Liberation Army.
During the course of investigation, the I.O. had learnt
through secret sources about the formation of Bihar
Peoples Liberation Army and the association of the
appellants with the organization. The information about
such private militia seeking extortion money from
construction companies was based on hearsay reports.
The Trial Court wrongly but heavily relied upon the dock
identification of four of the appellants by Dhiraj Singh
(P.W. 15) as also on the recovery of AK-56 rifle and a
pistol on the so-called confession of Mukesh Pathak and
the reports of the RFSL, Patna opining that the crime
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cartridges found at the P.O. were fired by the seized
weapons.
24. The Trial Court had also, according to the
appellants, erroneously relied upon the call detail records
which were certified by S.I./Dilip Kumar Pathak (P.W. 18)
and not by any official of the telephone company. There
was no way, the appellants have argued, that the seizure
of pamphlets from the P.O. and the claim of some of the
P.Ws. that slogans were raised at the time of occurrence,
could have been relied upon by the Trial Court to conclude
that the appellants are guilty.
25. With respect to the case of Munni Devi,
Sanjay Lal Dev, Pintu Lal Dev and Pintu Tiwari in
particular, it was argued that none of them were either
named in the FIR nor during the Trial, any witness had
spoken about their complicity in the crime or their having
conspired with the other assailants. It was further argued
that the I.O. (P.W. 19) in his examination-in-chief has
admitted that on 26.12.2015 i.e., the day of the
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occurrence, he had conducted raids in the houses of
Sanjay Lal Dev and Pintu Lal Dev but he did not at all
speak about the smoking gun for him to do so. He
admitted of knowing Sanjay Lal Dev and Munni Devi even
prior to the occurrence.
26. There is absolutely no evidence, the
appellants have contended, of any conspiracy which was
hatched for committing the occurrence.
27. It was also seriously criticized by the
appellants that the confession of the accused persons
before the police was exhibited before the Trial Court,
notwithstanding the deprecation of such practice by the
Supreme Court in the case of Venkatesh @ Chandra
and Anr. v. State of Karnataka (2022) 16 SCC
797.
28. Before, we discuss the evidence, we stand
reminded of a pithy observation of the Supreme Court in
Paramjeet Singh @ Pamma v. State of
Uttarakhand AIR (2011) SC 200, that a Court must
Patna High Court CR. APP (DB) No.543 of 2018 dt.11-12-2024
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bear in mind that “human nature is too willing, when
faced with brutal crimes, to spin stories out of strong
suspicion.” The Courts have been cautioned that even
though an offence may be gruesome and revolting to the
human conscience, an accused can be convicted only on
legal evidence and not on surmises and conjectures. The
fact that the offence is committed in a very cruel and
revolting manner may in itself be a reason for scrutinizing
the evidence more closely, lest the shocking nature of the
crime may induce an instinctive reaction against
dispassionate judicial scrutiny of facts and law.
29. The substratum of the prosecution version is
thus based on the inference of the I.O. (P.W. 19) about
the activities of Bihar Peoples Liberation Army. The
information gathered was through sources which have not
been disclosed. No witness appears to have been
examined to prove those facts viz. of Santosh Jha (since
dead) having set up Bihar Peoples Liberation Army and
the appellants being active members of the militia.
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30. While going through the evidence, we found
that Dhiraj Singh (P.W. 15) had lodged the fardbeyan
(Ext. 17) and on the same day, his further statement was
recorded. He did not give any description of the
miscreants nor claimed to identify them.
31. Om Prakash Paswan (P.W. 1) though claims
to have been present at the time of occurrence at the
P.O., but he did not identify anyone of the four assailants.
He had come to the Court to depose for the first time.
However, he was declared hostile.
32. Mritunjay Pandey (P.W. 2) who had brought
the two injured/deceased to DMCH also does not claim to
have identified anyone of the assailants. In fact, he has
clearly stated that he had received information that two of
the engineers of the company were shot at and injured at
about 12:30 P.M. in the day. At that time, he was
camping somewhere else but nearby. Hearing this, he
went to the P.O. and carried the two injured/deceased to
DMCH, where they were declared dead.
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33. Rupesh Kumar (P.W. 3) was also present at
the P.O. but because he did not claim to identify anyone,
he was also declared hostile.
34. The only other person who claims to have
been present at the site is one Darsaniya Devi (P.W. 13)
who has, in a truthful manner, stated before the Trial
Court that hearing the sound of gun-shot, she became
unconscious and did not see anything. She was brought to
her home by local people. She regained her consciousness
only after two hours.
35. Thus, the only person who identified
appellants/Nikesh, Mukesh, Vikash and Santosh (since
dead) is Dhiraj (P.W. 15).
36. A serious objection has been raised with
respect to the credibility of the assertion of P.W. 15. It
has been argued that he never claimed, either in his
fardbeyan or further statement, that he could identify the
assailants if shown to him. The incident occurred in a
sudden manner and if the prosecution version is to be
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accepted, it would not have lasted for more than few
minutes. Under such circumstances, single dock
identification, it has been argued, would not warrant
conviction of the appellants. The evidence of P.W. 15 was
recorded on 24.11.2016 i.e. after a year when he
identified the four above named appellants in the dock as
assailants of the deceased.
37. No Test Identification Parade was held
during the course of investigation.
38. In Malkhan Singh & Ors. v. State of
M.P. (2003) 5 SCC 746, a question was raised
whether the conviction of appellants could be sustained
on the basis of identification of the appellants by the
prosecutrix in Court without holding a Test Identification
Parade in the course of investigation. It was contended
that the identification in Court not proceeded by a TIP is
of no evidentiary value. On behalf of the prosecution in
that case, it was argued that the substantive evidence is
the evidence of identification in Court and therefore, the
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value to be attached to such identification must depend
on facts and circumstances of each case. No general rule
could be laid that such identification in the Court is of no
value. It was held by the Supreme Court that there could
be no doubt about the substantive evidence being the
evidence of identification in Court.
39. Apart from the clear provision contained in
Section 9 of the Evidence Act, the position under law is
well settled: the facts which establish the identity of the
accused are relevant under Section 9 of the Evidence Act.
As a general rule, the substantive evidence of a witness is
the statement made in Court. The evidence of mere
identification of the accused at the Trial for the first time,
is from its very nature, inherently of a weak character.
40. The purpose of a prior Test Identification,
therefore, is to test and strengthen the trustworthiness of
that evidence. It is accordingly considered a safe rule of
prudence to generally look for corroboration of the sworn
testimonies of the witnesses in Court as to the identity of
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the accused who are strangers to them, in the form of
earlier identification proceedings. The Supreme Court
elaborated that this rule of prudence is subject to
exceptions. If a Court is impressed by a particular witness
on whose testimony it can safely rely, there would be no
need of a prior Test Identification Parade.
41. The Identification Parades belong to the
stage of investigation and there is no provision in the
Cr.P.C. which obliges the investigating agency to hold, or
confer a right upon the accused to claim a Test
Identification Parade. They do not constitute substantive
evidence and these parades are essentially governed by
Section 162 of Cr.P.C. The failure to hold TIP would not
make inadmissible the evidence of identification in Court.
The weight to be attached to such identification should be
left to the Courts of facts. In appropriate cases, it may
accept the evidence of identification even without
insisting on corroboration.
42. True it is that there is no hard and fast rule
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of a Test Identification Parade preceding an identification
in dock, but in the present case, we find that nobody was
named in the FIR or in the further statement. The lead to
investigation was based on the names of two of the
appellants in the pamphlets. There is no evidence of who
printed those pamphlets and for whom.
43. P.W. 15 was examined in Court after a year
of the occurrence. There also appears to be a doubt
regarding his presence at the site. He is not an employee
of the company. The first person to receive the
information about the incident is P.W. 2, the Project
Manager in the company, who was camping nearby. In his
statement also, there is nothing to indicate that P.W. 15
was present at the P.O. from before and he witnessed the
occurrence.
44. That apart, it has been argued that P.W. 15
had ample opportunity to see the appellants prior to his
identifying the appellants in Court. The evidence at the
Trial commenced on 02.08.2016, when P.W. 1 was
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examined. Before P.W. 15, fourteen other witnesses had
already been examined. On each date of hearing, the
appellants were brought to the Court. There is no
evidence of their being brought to the Court ‘Ba-Parda’.
45. With such doubts in our minds, it is difficult
for us to believe the identification of four of the appellants
by P.W. 15.
46. The Supreme Court in Wakil Singh & Ors.
v. State of Bihar AIR (1981) SC 1392 , has held that:
“in the instant case we may mention that none of the
witnesses in their earlier statements or in oral evidence
gave any description of the dacoits, whom they have
alleged to have identified in the dacoity nor did the
witnesses give any identification marks viz. stature of the
accused or whether they were fat or thin or of a fair
colour or of a black colour. In the absence of any such
description, it will be impossible for us to convict an
accused on the basis of single identification, in which case
the reasonable possibility of mistaken identification
Patna High Court CR. APP (DB) No.543 of 2018 dt.11-12-2024
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Shankar v. State of U.P. AIR 1987 SC 1222; N.J.
Suraj v. State (2004) 11 SCC 346; Laxmipat
Choraria v. State of Maharashtra AIR (1968) SC
938; Dana Yadav @ Dahu v. State of Bihar
(2002) 7 SCC 295; Vijayan v. State of Kerala
(1999) 3 SCC 54 and Shaikh Umar Ahmed Shaikh
v. State of Maharashtra (1998) 5 SCC 103].
47. Thus we are of the considered view that in
the event of no Test Identification Parade having been
conducted during the investigation and the incident being
sudden and unexpected, lasting for a few minutes, which
would have caused pandemonium all around, failure to
hold Test Identification Parade was fatal. There is also
doubt about P.W. 15 being present at the time of the
occurrence. The doubt is further exacerbated when P.W.
15 identified the four appellants after a year of the
occurrence when on each and every date when other
witnesses were examined, the appellants were brought to
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the Court in custody without concealing their faces.
48. The next evidence relied upon by the Trial
Court is the discovery of the weapons of assault under
Section 27 of the Evidence Act.
49. Mukesh Pathak had given a memorandum
(Ext. 53) in which he had disclosed that he had
knowledge regarding the weapons. This per se does not
incriminate Mukesh Pathak. Recovery becomes
incriminating not because of its recovery at the instance
of the accused but the element of criminality tending to
connect the accused with the crime, which actually lies in
the authorship of concealment. What would be admissible
as a criminating circumstance would be an accused giving
information leading to the discovery, being the person
who concealed the weapon. As observed in Pullukuri
Kotaya’s case (AIR 1947) PC, 67, it can seldom
happen that information leading to discovery of a fact
forms the foundation of prosecution case; it is just one
link in the chain of proof and the other links must be
Patna High Court CR. APP (DB) No.543 of 2018 dt.11-12-2024
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forged in a manner allowed by law [also refer to K.
Chinnaswamy Reddy v. State of A.P. AIR (1962)
SC 1788 and Anter Singh v. State of Rajasthan
(2004) 10 SCC 657].
50. In the case at hand, there is no evidence
that Mukesh Pathak was at any point of time in
possession of any weapon or that he had handed over the
weapons either to Vijay Kumar or to Sanjay Jha. Rather,
the evidence of the I.O. is that Vijay Kumar and Sanjay
Jha informed him that weapons had been kept with them
by some other named persons but not the appellant [also
refer to Ramanand @ Nandlal Bharti v. State of
U.P. (2022) SCC online SC 1396].
51. It is really surprising that the Trial Court has
accepted such discovery of weapons, not from anyone of
the appellants or at their instance, to be admissible under
Section 27 of the Arms Act.
52. This alone leaves us with great doubt with
respect to the same weapons having been used in the
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occurrence. Even if it were, whether it was at the instance
of appellants is rendered very doubtful.
53. Nonetheless, we would examine the forensic
evidence on record.
54. The RFSL report though confirms that the
empty cartridge cases were fired by the two weapons
seized but how such an impression was arrived at by the
experts remain undeciphered to us.
55. Section 45 of the Evidence Act speaks of
expert evidence. It reads as follows:
45. Opinions of experts.–When
the Court has to form an opinion upon a point
of foreign law or of science, or art, or as to
identity of handwriting 2
[or finger
impressions], the opinions upon that point of
persons specially skilled in such foreign law,
science or art, 3[or in questions as to identity
of handwriting] 2[or finger impressions] are
relevant facts.
Such persons are called experts.
Illustrations
(a) The question is, whether the
death of A was caused by poison.
The opinions of experts as to the
symptoms produced by the poison by which A
is supposed to have died, are relevant.
(b) The question is, whether A, at
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the time of doing a certain act, was, by reason
of unsoundness of mind, incapable of knowing
the nature of the act, or that he was doing
what was either wrong or contrary to law.
The opinions of experts upon the
question whether the symptoms exhibited by
A commonly show unsoundness of mind, and
whether such unsoundness of mind usually
renders persons incapable of knowing the
nature of the acts which they do, or of
knowing that what they do is either wrong or
contrary to law, are relevant.
(c) The question is, whether a
certain document was written by A. Another
document is produced which is proved or
admitted to have been written by A.
The opinions of experts on the
question whether the two documents were
written by the same person or by different
persons, are relevant.
56. The importance of the provision has been
explained in the case of State of H.P. vs. Jai Lal and
Ors. (1999) 7 SCC 280. In order to bring the evidence
of a witness as that of an expert, it has to be shown that
he has made a special study of the subject or acquired a
special experience therein, or in other words, he is skilled
and has adequate knowledge of the subject.
57. Way back in Titli vs Alfred Robert Jones
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AIR (1934) ALL 273, it was held that the real function
of an expert is to put before the Court all the materials,
together with the reasons which induce him to come to
the conclusion so that the Court, although not an expert,
may form its own judgment by its own observation of the
materials.
58. An expert’s opinion has to be demonstrative
and should be supported by convincing reasons.
59. “A Court cannot be expected to surrender its
own judgment and delegate its authority to a third
person, however great”.
60. Though the report talks about the
microscopic examination of the breech face marks, firing
pin marks and ejector marks on the percussion caps of
the cartridges, but no material has been brought before
the Trial Court for him to have cross-checked the opinion
of the experts to verify its correctness or to come to his
own conclusion and satisfaction that the seized weapons
were used to fire the crime cartridges. This could have
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been done provided the experts had taken the
photographs during the examination under the
comparative microscope so as to enable the Court to
cross-check and verify the breech face markings, the
firing pin impressions and the ejector marks [refer to
Ramesh Chandra Agrawal v. State of Regency
Hospital Ltd. & Ors. AIR (2010) SC 806].
61. The connecting link between the appellants
is sought to be established by the analysis of the CDRs.
They could not constitute legal evidence as the certificate
required under Section 65B of the Indian Evidence Act
has not been filed by the prosecution. The certificate was
required to be signed by the nodal officer of the service
provider. There also does not appear to be any proof of
the appellants being in possession of such mobile
telephones which was put under surveillance.
62. Section 109 of the Indian Evidence Act
reads as hereunder:
109. Burden of proof as to
relationship in the cases of partners,
Patna High Court CR. APP (DB) No.543 of 2018 dt.11-12-2024
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— When the question is whether persons are
partners, landlord and tenant, or principal and
agent, and it has been shown that they have
been acting as such, the burden of proving
that they do not stand, or have ceased to
stand, to each other in those relationships
respectively, is on the person who affirms it.
63. The wordings of the Section are absolutely
clear.
64. It is the initial burden of the prosecution to
prove that the appellants were particeps criminis. If that
were proved, then perhaps the onus would have shifted to
the appellants to confirm that they were not partners in
crime. Merely because accommodation was arranged for
some of the appellants by the others, though related to
each other, it cannot be said with certainty that it was
part of the post-occurrence efforts to save the culprits.
The CDR is the only basis for the prosecution to assert so
and as we have noted, those have been rendered
meaningless with no proper certification under Section
65B of the Indian Evidence Act in this case.
65. True it is that for the offence of criminal
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conspiracy, it is very difficult and rare to find direct proof
of it because of the very fact that it is hatched in
conspiracy. Unlike other offences therefore, criminal
conspiracy in most of the cases is proved by
circumstantial evidence only; but then, relying on
circumstantial evidence has its own limitations. It has to
cross through the litmus test of Panchsheel principle that
unless it is shown that the offence was committed by the
appellants only and by no one else, it could not be pressed
into use for convicting the appellants.
66. The investigation appears to have been
carried forward in the direction of finding out who Mukesh
Pathak and Vikash Jha were, because of their names
inscribed on the seized pamphlets.
67. Could that have been taken as an evidence?
68. Not a single witness has deposed about the
authorship of the document. It had to be proved in
accordance with Sections 62 to 67 of the Evidence Act for
it to have been relied upon.
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69. The allegation of slogan raising by the
assailants also do not constitute substantive evidence.
70. The slogans do not prove the truth of what is
being uttered.
71. Sloganeering has a purpose which need not
necessarily be linked with the truth of the matter. The
raising of slogans or names inscribed in the pamphlets do
not prove the presence of the named persons at the spot.
These could only be the starting point of investigation and
not the end result.
72. The appellants may have been associated
amongst themselves and there could be a strong
possibility of the appellants being behind the occurrence,
but such an inference is only in the realm of possibilities.
The law does not permit the Courts to punish the accused
on the basis of any moral conviction or suspicion alone.
The burden of proof in a criminal Trial never shifts and it
is always the burden of the prosecution to prove its case
beyond all reasonable doubts on the basis of acceptable
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evidence.
73. For the aforenoted discrepancies in the
prosecution case and the version of P.W. 15 as an
eyewitness to the occurrence being in great doubt, we
have no option but to give benefit of doubt to the
appellants.
74. The appellants are acquitted of all the
charges levelled against them.
75. All the appeals are allowed.
76. Appellants/Nikesh Dubey, Mukesh Pathak @
Chutul Pathak@ Aditya Kumar, Vikash Jha @ Kalia, Pintu
Jha @ Pintu Kumar Jha and Pintu Tiwari @ Pintu Tiwary
are in jail.
77. They are directed to be released forthwith, if
not wanted or required in any other case.
78. So far as appellants/Munni Devi, Pintu Lal
Dev @ Ajay Kumar and Sanjay Lal Dev are concerned,
they are on bail.
79. They are discharged of their liabilities under
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the bail-bonds.
80. Let a copy of this judgment be dispatched to
the Superintendent of the concerned Jail forthwith for
compliance and record.
81. The records of these cases be returned to
the Trial Court forthwith.
82. Interlocutory application/s, if any, also stand
disposed off accordingly.
(Ashutosh Kumar, J)
(Rajesh Kumar Verma, J)
krishna/-
AFR/NAFR AFR CAV DATE 23.10.2024 Uploading Date 11.12.2024 Transmission Date 11.12.2024