The Patna High Court has, in the case of State of Bihar v. Bachesh Kumar Singh, acquitted all the thirteen persons accused in the 1999 Bihar Senari massacre in which 34 persons belonging to the upper caste community were killed by a Maoist group in Senari village in Bihar. The Court stated that identification of the accused persons by the witnesses for the first time in the Trial Court without prior test identification parade (TIP) cannot be relied upon to convict them.
Background of the incident
The High Court was hearing a criminal reference along with an appeal related to the Senari massacre in 1999. The appellants in these appeals challenged the common judgment of conviction and order of sentence passed by the learned 3rd Additional Sessions Judge, Jehanabad. By the aforesaid judgment, the appellants were convicted for the offenses punishable under Sections 148, 302/149, punishable under Sections 148, 302/149, 307/149 of the Indian Penal Code, 27 of the Arms Act, and 3/4 of the Explosives Substances Act.
Reasoning and Decision of the Court
The Court observed that it was dark at the time of occurrence and the villagers were running to save their lives. Hence, except for the few torches that were being carried by the villagers, there was no source of light and hence identifying the miscreants was difficult. The Court further observed that since no one claimed to have identified the miscreants through voice or clothes or any other mark of familiarity or from proximate location, therefore the witness testimony could not be believed.
"Having analyzed the testimony of the witnesses examined before the court in respect of each of the convicts, there remains no doubt that the time of occurrence was dark, the site of unfortunate massacre was beset with mayhem with villagers making desperate attempts to seek refuge in a place and position in which they would remain unseen by the miscreants lest they fell a prey to their barbarism. In such a state of complete chaos, witnesses hiding in different corners of the village have claimed to identify one or more accused persons without any indication as to the source of light save the torches being carried by the miscreants. Moreover, the witnesses have claimed that the miscreants were more or less identically clad, some in police uniforms, some others in the local outfits.
Also, almost all the P.Ws, who claimed identification, had done so at the time of occurrence from a distance i.e., they claimed to identify the miscreants from their respective hiding places (…)
Their evidence on other counts have been found doubtful. Even if the miscreants were known to some of the witnesses, they have been identified by witnesses, who did not claim to be in proximity with the miscreants as they were more concerned about concealing themselves in safe places. It is nobody's case that the miscreants were identified through voice or clothes or any other mark of familiarity. In such a situation, characterized by darkness and physical distance, the question naturally arises as to how could any kind of identification of faces of the miscreants be made. The seizure lists do not indicate the seizure of any artificial sources of light which could have aided the identification on a dark night."
Further, the Court observed that admittedly, there was no TlP and the evidence of identification of the accused persons at the trial for the first time was (from its very nature) a weak piece of Evidence.
“It has considered a safe rule of prudence to generally look for corroboration of the testimony of witnesses in court as to the identity of the accused who are strangers them in the form of earlier TIP. It has further held that generally identification for the first time in dock is insufficient to warrant a conviction."
"Another important feature of this case is the manner in which the appellants were deprived of their statutory right to be heard, as provided under Section 313 of the Cr.P.C."
Reflecting on the provisions of Section 313 of Cr.P.C., the Court observed that,
"A plain reading of Section 313 of the Cr.P.C would demonstrate that the question under Clause (1) (a) is discretionary. It empowers the Court to put such question to the accused as the court considers necessary for the purpose of enabling him personally to explain any circumstance appearing in evidence against him at any stage without previoúsly warranting. However, Clause (1) (b) empowers the court to question the accused on the case after the witnesses or the prosecution has been examined and before is called upon for his defence. It casts a duty on the court to give an opportunity to the accused to explain the incriminating material against him."
“The membership of an unlawful assembly, allegation under the Arms Act, Explosive Substances Act and killing of 34 persons by the unlawful assembly were the charges on which the appellants were tried. The evidence against the appellants is the material on which the Trial Court has relied upon to convict them."
The Bench then while citing the relevant case laws put forth in para 162 that,
"The examination of the accused persons under Section 313 of the Cr.P.C when compared with the charges framed will illustrate the utility of the examination in this case. The accused persons have been subjected to severe standard and identical questions even though the witnesses against them are disparate. While some of the accused persons have been identified by some witnesses, the others have been identified by a single witness. No question has been put to them regarding identification by different persons and the places in the village in which they were claimed to be identified. For instance, the evidence against Butai Yadav, Uma Paswan and Lalan Pasi is that they tied the hands of Suresh Sharma. However, they have not been confronted with these evidences. Instead of seeking their explanation with regard to the incriminating material, the accused persons have been asked to explain the charges for which they were being tried. This sort of examination goes against the essence of Section 313 of the Cr.P.C.”
"Thus, the identification of the accused persons by the witnesses in the court cannot be relied upon to convict them."
"Moreover, the conviction in a criminal trial is required to be certain and not doubtful. The burden of proof of guilt of an accused is upon the prosecution. It must stand by itself. In the present case, on appreciation of evidence adduced during trial, I find that there is a real and reasonable doubt as to the guilt of the appellants."
Held
The Court while setting aside the 2016 order of Sessions Court which convicted the accused for murder and rioting and sentencing ten of them to death and three to life imprisonment made it amply clear that identification of accused in court without Test Identification Parade, was insufficient and thus acquitted all the 13 accused in Senari massacre case. We thus see that the Patna High Court in this leading case very rightly ordered that,
"In the present case, on appreciation of evidence adduced during trial, I find that there is a real and reasonable doubt as to the guilt of the appellants.Accordingly, the impugned judgment dated 15th November, 2016 and order of sentence dated 27th October, 2016 passed in Sessions Trial No. 93/2013/281/2015, arising out of Karpi P.S. Case No. 22/1999, so far as the appellants in these appeals are concerned, are, hereby, set aside.”
Case Details
Name: State of Bihar v. Bachesh Kumar Singh
Case No.: Death Reference No. 2 of 2017
Date of Decision: 21-05-2021
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