Patna High Court
Mungeshwar Yadav vs The State Of Bihar on 21 May, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
DEATH REFERENCE No.2 of 2017
Arising Out of PS. Case No.-22 Year-1999 Thana- KARPI District- Jehanabad
======================================================
The State of Bihar
... ... Petitioner
Versus
1. Bachesh Kumar Singh S/o Baiju Singh Resident of Village-Kurwama, P.S.-
Bansi Karpi, District-Arwal
2. Budhan Yadav Son of Late Triveni Yadav, resident of Village- Sonati,
Police Station- Karpi, District- Arwal.
3. Butai Yadav son of Jagarnath Yadav, resident of Mahadeo Bigha, P.S. -
Kurtha, District - Arwal.
4. Satendra Das s/o late Bhaju Das R/o Vill.- Kurmawan, P.S. karpi, District-
Arwal
5. Lallan Pasi @ Lalan Pasi S/o Late Nanhak Pasi resident of village-Pondil,
P.S-Kurtha, District-Arwal.
6. Gopal Sao @ Gopa Saw, son of Late Sarju Sao, both above are residents of
Village- Sonati, Police Station- Karpi, District- Arwal.
7. Dwarik Paswan S/o late Shyam Paswan, R/o Vill.- Kurmawan, P.S. Karpi,
District- Arwal
8. Kariman Paswan S/o Late Baldev Paswan, R/o Vill.- Kurmawan,P.S.
Karpi ,Distt.- Arwal
9. Gorai Paswan S/o Late Shyam Paswan, R/o vill.- Kurmawan,P.S. Karpi
Distt.- Arwal
10. Uma Paswan s/o late Baldev Paswan, R/o vill.- Kurmawan,P.S. Karpi
Distt.- Arwal
... ... Respondents
======================================================
with
CRIMINAL APPEAL (DB) No. 1271 of 2016
Arising Out of PS. Case No.-22 Year-1999 Thana- KARPI District- Jehanabad
======================================================
1. Dwarik Paswan S/o late Shyam Paswan
2. Uma Paswan s/o late Baldev Paswan
3. Kariman Paswan s/o late Baldev Paswan
4. Gorai Paswan s/o late Shyam Paswan
5. Satendra Das s/o late Bhaju Das R/o vill.- Kurmawan, P.S. Karpi ,Distt.-
Arwal
6. Lallan Pasi @ Lalan Pasi S/o Late Nanhak Pasi resident of village-Pondil,
P.S-Kurtha, District-Arwal.
... ... Appellants
Versus
The State Of Bihar
... ... Respondent
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
======================================================
with
CRIMINAL APPEAL (DB) No. 30 of 2017
Arising Out of PS. Case No.-22 Year-1999 Thana- KARPI District- Jehanabad
======================================================
1. Budhan Yadav Son of Late Triveni Yadav,
2. Gopal Sao @ Gopa Saw, son of Late Sarju Sao, both above are residents of
Village- Sonati, Police Station- Karpi, District- Arwal.
... ... Appellants
Versus
The State Of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 32 of 2017
Arising Out of PS. Case No.-22 Year-1999 Thana- KARPI District- Jehanabad
======================================================
Bachesh Kumar Singh S/o Baiju Singh Resident of Village-Kurwama, P.S.-
Bansi Karpi, District-Arwal
... ... Appellant
Versus
The State Of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 62 of 2017
Arising Out of PS. Case No.-22 Year-1999 Thana- KARPI District- Jehanabad
======================================================
Butai Yadav son of Jagarnath Yadav, resident of Mahadeo Bigha, P.S. -
Kurtha, District - Arwal.
... ... Appellant
Versus
The State Of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 96 of 2017
Arising Out of PS. Case No.-22 Year-1999 Thana- KARPI District- Jehanabad
======================================================
Mungeshwar Yadav S/o Pachu Yadav Resident of Village- Dhibri, P.S.-
Konch, District- Gaya.
... ... Appellant
Versus
The State Of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 184 of 2017
Arising Out of PS. Case No.-22 Year-1999 Thana- KARPI District- Jehanabad
======================================================
1. Arvind Kumar Son of Sakaldeo Yadav, Resident of village - Dhibri, P.S.
Konch, District - Gaya
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
2. Vinay Paswan, Son of Doman Paswan, Resident of village - Dhibri, P.S.
Konch, District - Gaya
... ... Appellants
Versus
The State Of Bihar
... ... Respondent
======================================================
Appearance :
(In DEATH REFERENCE No. 2 of 2017)
For the Petitioner : Dr. Mayanand Jha, APP
For the Respondents : Ms. Surya Nilambari, Amicus Curiae
(In CRIMINAL APPEAL (DB) No. 1271 of 2016)
For the Appellants : Mr. Surendra Singh, Sr. Adv.
Mr. Krishna Prasad Singh, Sr. Adv.
Mr. Bhaskar Shankar, Adv.
Mr. Rakesh Singh, Adv.
For the Respondent : Dr. Mayanand Jha, APP
(In CRIMINAL APPEAL (DB) No. 30 of 2017)
For the Appellants : Mr. Ansul, Adv.
Mr. Sunil Srivastava, Adv.
Mr. Girish Chandra Sharma, Adv.
For the Respondent : Dr. Mayanand Jha, APP
(In CRIMINAL APPEAL (DB) No. 32 of 2017)
For the Appellant : Mr. Surendra Singh, Sr. Adv.
Mr. Krishna Prasad Singh, Sr. Adv.
Mr. Bhaskar Shankar, Adv.
Mr. Rakesh Singh, Adv.
For the Respondent : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 62 of 2017)
For the Appellant : Mr. Ansul, Adv.
Mr. Upendra Kumar, Adv.
For the Respondent : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 96 of 2017)
For the Appellant : Mr. Surendra Singh, Sr. Adv.
Mr. Krishna Prasad Singh, Sr. Adv.
Mr. Bhaskar Shankar, Adv.
Mr. Rakesh Singh, Adv.
For the Respondent : Mr.Sri Abhimanyu Sharma, APP
(In CRIMINAL APPEAL (DB) No. 184 of 2017)
For the Appellants : Mr. Ansul, Adv.
For the Respondent : Ms. Shashi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)
Date : 21-05-2021
The appellants in these appeals challenge the
common judgment of conviction dated 27.10.2016 and order of
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
sentence dated 15.11.2016 passed by the learned 3rd Additional
Sessions Judge, Jehanabad in Sessions Trial No. 93/2013 /
281/2015. By the aforesaid judgment dated 27.10.2016, the
appellants have been convicted for the offences punishable
under Sections 148, 302/149, 307/149 of the Indian Penal Code,
27 of the Arms Act and 3/4 of the Explosive Substances Act.
Consequent upon conviction, vide aforesaid order dated
15.11.2016 the appellants Bachesh Kumar Singh in, Budhan
Yadav, Gopal Sao, Butai Yadav, Satendra Das, Lalan Pasi,
Dwarik Paswan, Kariman Paswan, Gorai Paswan and Uma
Paswan have been sentenced to death and the appellants
Mungeshwar Yadav, Vinay Paswan and Arvind Paswan have
been sentenced to undergo imprisonment for life and a fine of
Rs.1,00,000/- for the offence punishable under Section 302/149
of the Indian Penal Code and in default of payment of fine to
undergo further imprisonment for two years. All these appellants
have been further sentenced to undergo R.I. for three years and a
fine of Rs.10,000/- for the offences punishable under Section
148 of the Indian Penal Code and in default of payment of fine
to undergo further imprisonment for six months, R.I. for ten
years and a fine of Rs.50,000/- for the offence punishable under
Section 307/149 of the Indian Penal Code and in default of
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
payment of fine to undergo further imprisonment for two years,
R.I. for three years and a fine of Rs.10,000/- for the offence
punishable under Section 27 of the Arms Act and in default of
payment of fine to undergo further imprisonment for six months
and R.I. for three years and a fine of Rs.10,000/- for the offence
punishable under Section 3/4 of the Explosive Substances Act
and in default of payment of fine to undergo further
imprisonment for six months. It is directed by the Trial Court
that all the sentences shall run concurrently.
2. After passing the impugned judgment and order,
the Trial Court made a reference under Section 366 of the Code
of Criminal Procedure (for short "Cr.P.C") for confirmation of
death sentence awarded to the convicts Bachesh Kumar Singh,
Budhan Yadav, Gopal Sao, Butai Yadav, Satendra Das, Lalan
Pasi, Dwarik Paswan, Kariman Paswan, Gorai Paswan and Uma
Paswan, which has been registered as Death Reference No. 2 of
2017.
3. The appeals preferred by the appellants and the
reference made by the Trial Court have been heard together and
are being disposed of by a common order.
4. The Sessions Trial in which the impugned
judgment and order were passed relates to the First Information
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Report (for short 'FIR') that had been registered at 10:00 AM on
19th March, 1999 in Karpi Police Station under Section 154 of
the Cr.P.C in respect of an incident that had occurred at Senari
situated at a distance of 18 km from the Police Station between
07:30 PM to 11:00 PM on 18th March, 1999. The formal FIR
would indicate that the police had received the information
regarding the occurrence through wireless message at 11:40 PM
on 18th March, 1999.
5. The FIR giving rise to the Sessions Trial was
registered on the basis of the oral statement of Chintamani Devi,
wife of late Awadh Kishore Sharma, one of the persons, who
died in the occurrence, which was reduced into writing by
Jamuna Singh, the Sub-Inspector of Police-cum-Officer-in-
Charge of Karpi Police Station on 19th March, 1999 at 2:30 AM
at the house of Chintamani Devi situated at Senari under the
police station area Karpi of district Arwal, which was then part
of Jehanabad district.
6. In her oral statement, the informant Chintamani
Devi stated as under:-
"My name is Chintamani Devi, wife of late
Awadh Kishore Sharma, resident of Senari, P.S.-
Karpi, District- Jehanabad (Arwal). Today, on 19th
March,1999, at 02:30 AM, I am giving my
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
statement before the SHO of Karpi Police Station
that last evening at 7.30 PM, my son Madhukar @
Jhabbu was reading in the light of lantern on the
roof and I was also there. My husband came out of
the house after hearing some commotion. I and my
son saw that many persons had reached in the lane
near the house of Engineer Saheb Radhe Shyam
Sharma and started knocking his door. At this point
in time, my son informed them that there was no
male member in the house. One person among
them called my son. My son, under the impression
that they intend to ask about someone, came down
the roof taking lantern with him and opened the
door. I also followed him and saw co-villagers (1)
Ramashish Bhuiyan, son of Sona Bhuiyan, (2)
Ramlakhan Bhuiyan, son of not known, (3) Sadhu
Bhuiyan, son of not known, (4) Venkatesh Bhuiyan,
son of Mati Bhuiyan, (5) Bhoda Bhuiyan, son of
not known, (6) Biphan Bhuiyan son of Kulanjan
Bhuiyan, (7) Murgi Bhuiyan, son of not known, (8)
Genda Bhuiyan, son of not known and (9) Radhe
Shyam Ramani son of Nathun Rawani and (10)
Suresh Bhuiyan, son of Ghoghar Bhuiyan, (11)
Bhaglu Bhuiyan son of Lootan Bhuiyan, (12)
Chamaru Bhuiyan son of Bodh Bhuiyan belonging
to adjacent Tola-Azadbigha, P.S. Karpi, (13)
Dukhan Kahar, son of not known of village
Kutubpur, (14) Dulli Yadav and (15) Vyas Yadav,
both sons of Janardhan Yadav, of village
Gokhulpur and (16) Ramesh yadav son of
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Suryadeo Yadav, resident of Kurtha Police Station,
District- Jehanabad present at my door in the lane.
Among them, persons belonging to my village were
dressed in lungi and ganji. Their lungi was half
folded and Dukhan Kahar, Dulli Yadav, Vyas Yadav
and Ramesh Yadav were in police uniform. Along
with them, there were other persons also whom I
could not recognize.
In the meantime, Murgi Bhuiyan
caught hold of the hand of my son and was
dragging him out. I implored before him, but he did
not pay heed to my request and took him to
Thakurbadi situated in the north-east direction. I
started crying. In the meantime, I heard sound of 3-
4 rounds of firing and the slogan- "MCC
Zindabad". Then, I came to know that they were
members of the MCC party. They took away my son
to kill him. My husband had also gone out of the
house after taking tea a little while ago. They took
him away. I could not bear the shock of my
husband and son being taken away by the
extremists. I proceeded towards the Thakurbadi to
set them free. I saw that hundreds of extremists had
assembled there. Amongst them some were in
police uniform and some were dressed in lungi and
ganji and they were carrying pasuli and garasa (a
sharp-edged weapon). They tied my husband and
son by folding their hands. Genda Bhuiyan tied the
legs of my son and Murgi Bhuiyan tied the legs of
my husband and about 3-4 persons pushed them on
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
the ground and one person whom I did not
recognize slit their throat with a pasuli. When I
raised alarm, they pushed me abruptly as a result
of which I fell on a heap of straw and continued
watching them committing the crime. I saw that
they were bringing many persons of the village
forcibly and slitting their throats. Thereafter I saw
that the killings by cutting throats were mainly
being done by the accused Dukhan Ram Kahar and
Ramesh Yadav. I could not control myself any more
viewing the scene. I came back to my house crying
and beating my chest. After 2-3 hours, I heard a
sound of explosion and the extremists left the place
and went towards south of the village shouting the
slogan "MCC Zindabad". Many persons raised
hue and cry. I too went to Thakurbari where many
villagers were crying. I saw many dead bodies
lying beside the dead body of my son and dead
bodies in large number were also at the northern
side of the village. I came to know from the
villagers that hundreds of MCC extremists had
arrived and surrounded the village and took the
villagers forcibly to Thakurbari in the north. I also
came to know that they had committed murder of 3-
4 persons by slitting their throat with pasuli after
dragging them in the southern side of the village.
The villagers told me that besides my husband and
son, MCC people killed number of persons near
Thakurbari and also in the southern direction of
the village. I also came to know that some persons
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
were injured. The extremists took away the DBBL
licensee gun of Mukesh Kumar son of Pashupati
Singh. They also demolished his house and door by
causing explosion with dynamite.
I claim that hundreds of extremists
had assembled in the vicinity of my village last
night at about 7.30 PM. They attacked my village
being armed with rifle, gun and pasuli and
committed this massacre outside the village and
took away the DBBL gun of my villager Pashupati
Singh. They also demolished his house by dynamite
and committed massacre for four hours and left the
place shouting "MCC Zindabad".
7. Jamuna Singh, the Sub-Inspector of Police-cum-
Officer-in-Charge of Karpi Police Station forwarded the
recorded statement to the Karpi Police Station and took up
investigation of the case himself.
8. Upon receipt of the duly recorded oral statement of
the informant, a formal FIR, vide Karpi P.S. Case No. 22 of
1999, was instituted at 10.00 AM on 19th March, 1999 under
Sections 147, 148, 149, 324, 307, 302, 452, 380, 120-B of the
Indian Penal Code, 27 of the Arms Act, 17 of the Criminal Law
Amendment Act and 3/4 of the Explosive Substances Act
against the 15 named accused persons and others unknown by
the Sub-Inspector of Police Arjun Minz.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
9. During investigation, the police recovered 34 dead
bodies and inquests were held at the spot between 06:00 AM
and 09:50 AM on 19th March, 1999. Autopsy on the dead bodies
was conducted at the place of occurrence itself on 19 th March,
1999 between 04:00 PM and 07:15 PM by P.W.7 Dr. Srinath
Prasad, P.W.21 Dr. Harish Chandra Hari, P.W.22 Dr. Mithilesh
Kumar and Dr. Vinay Prakash Keshav (not examined). Dr.
Abhay Kumar Jha Suman, Senior resident in the Department of
Surgery, Magadh Medical College and Hospital had examined
five victims, who had sustained injuries in the incident. The
Investigating Officer seized certain incriminating articles like
residues present around the blast side, blood stained earth, a
blood stained farsa and a blood stained pasuli from the place of
occurrence.
10. On perusal of the record, I find that the police
submitted their 1st report under Section 173(2) of the Cr.P.C in
the court of Chief Judicial Magistrate, Jehanabad on 16 th June,
1999. They sent up 56 accused persons for trial and intended to
examine 82 witnesses. Thereafter, a supplementary charge-sheet
was submitted on 27th October, 1999 against one accused. The
second supplementary charge-sheet was submitted by the police
on 20th February, 2000 forwarding 19 additional accused
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
persons for trial. The third supplementary charge-sheet was
submitted on 5th May, 2000 against another additional accused.
Thus, in all, 77 accused persons were sent up for trial. On
receipt of the police reports submitted under Section 173(2) of
the Cr.P.C, the learned Chief Judicial Magistrate took
cognizance of the offences and, after complying with the
statutory requirements of Section 207 of the Cr.P.C, committed
the case to the court of Sessions for trial. Though, charges were
framed against 45 accused persons by the Trial Court, due to
death and other reasons, only 38 of them faced trial.
11. It is to be noted that during trial the prosecution
had produced 30 witnesses in order to prove the charges framed
against the accused persons. They are Ram Ratan Sharma
(P.W.1), Vishwa Vijay Sharma (P.W.2), Arjun Singh (P.W.3),
Suresh Sharma (P.W.4), Sanjay Kumar (P.W.5), Shyam Nandan
Singh (P.W.6), Bali Ram Sharma (P.W.6a), Rajeshwar Singh
(P.W.7), Arvind Kumar (P.W.8), Girija Devi (P.W.9), Pankaj
Kumar (P.W.10), Rakesh Kumar (P.W.11), Krtishna Bihari
Sharma (P.W.12), Ravindra Sharma (P.W.13), Dinesh Sharma
(P.W.14), Ran Vijay Sharma (P.W.15), Chinta Devi (P.W.16),
Mithilesh Sharma (P.W.17), Manorma Kuwar (P.W.18),
Janeshwar Sharma (P.W.19), Balkeshwari Devi (P.W.20), Sharda
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Devi (P.W.21), Dr. Sri Nath Prasad (P.W.22), Madhulika Kumari
(P.W.23), Mukesh Kumar (P.W.24), Ajay Kumar (P.W.25), Sri
Niwas Sharma (P.W.26), Vishwambhar Singh (P.W.27), Dr.
Harish Chandra Hari (P.W.28), Dr. Mithilesh Kumar (P.W.29)
and Dr. Abhay Kumar Jha Suman (P.W.30).
12. The prosecution also proved the following
documents during trial:-
1. Signature of witnesses on inquest report (Exhibit- 1
Series)
2. Seizure List (Exhibit- 2)
3. Inquest Report (Exhibit- 3 Series)
4. Fardbayan (Exhibit- 4)
5. Formal FIR (Exhibit- 5)
6. Charge Sheet (Exhibit- 6 Series)
7. Post Mortem Reports (Exhibit- 7 Series)
8. Injury Reports (Exhibit- 8 Series)
9. Sanction order of District Magistrate, Jehanabad
(Exhibit- 9)
10. Report of Forensic Science Laboratory (Exhibit-10)
13. Apart from the oral and documentary evidences,
the prosecution also produced one pamphlet, which was marked
as Material Exhibit- 1.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
14. Ram Ratan Sharma (P.W.1), while deposing
before the Trial Court on 1st November, 2007 states that on 18th
March, 1999, at about 7:00-7:30 PM, he was sitting at the door
of Pashupati Sharma (not examined). At that time, about 12-14
persons being armed with rifle and gun came to Pashupati
Sharma's house. They caught someone and took him towards
the road. They were looking for members of Ranveer Sena. He
also saw that out of the miscreants some were trying to break
the door of the house. They took the person in their captivity to
the door of Padma Narayan Singh (not examined). He claims to
have seen five persons including the appellant Budhan Yadav.
He further claims that the miscreants killed Amresh, Ramdayal
Sharma and Tulsi Sharma. He states that the aggressors were
carrying torch lights in which he recognized some of them. He
further states that when he came back, he saw that the throat of
his son was slit. The miscreants killed him near the Thakurbadi
and killed three others on the southern road. He identified
Budhan in the dock.
15. In cross-examination, he states that his house is at
the southern end of the house of Pashupati Sharma and he was
sitting at the door of Pashupati Sharma. His co-villagers Sanjay
Sharma, Vijay Sharma and Ajay Sharma were also sitting there.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
He also states that the son of Pashupati Sharma, namely,
Mukesh was in the house. He states that he saw the accused
persons from a distance of 100 yards. He did not flee away. The
persons sitting with him fled away. He further states at para 9
that he had not taken Budhan Yadav's name before the police in
his statement under Section 161 of the Cr.P.C. At para 11, he
states that the miscreants were at Padam Narayan Singh's house
for half an hour. He further states that from where he was seated
facing the southern direction he could not see the Thakurbadi.
He states that he came back to his house after half an hour and
did not go to Thakurbadi.
16. Vishwa Vijay Sharma (P.W.2), while deposing
before the court on 21st January, 2008 states that on the date and
time of occurrence he was at his home. He heard that MCC
cadre had come. He hid himself on the roof of Kailash Babu
(not examined). He states that he heard the sound of four firing
and two blasts. Thereafter, he saw 25-30 persons. They were
wearing lungi ganji and police uniform and were carrying pasuli
and rifle. He states that the accused persons were carrying big
torches and they were lighting them in which he identified the
miscreants Yogendra, Ramesh, Butta Thakur, Doman Mistri,
Shiv Lal, Budhan, Bhanu, Hari Bhushan, Gopal, Mohan,
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Radhey Shyam, Ramashish, Parikha, Murgiya, Chamarua,
Bifan, Prahlad, Sukhu, Bachesh, Dully and Vyas. He states that
the accused persons caught his son Pintu Kumar. Radhey Shyam
and Prahlad tied his hands and took him towards Thakurbadi.
He states that when the accused went back, he went towards
Thakurbadi where he saw the dead bodies of his son and others.
17. Arjun Singh (P.W.3) deposed before the court on
7th February, 2008. In his deposition, he states that the
occurrence took place on 18th March, 1999 at 7:30 PM. At that
time, he was at the door of his house along with his brothers
Suresh Sharma, Sachidanand Sharma, Naresh Sharma, Sheo
Kumar, Kavindra and others. The miscreants, who were in
police uniform, arrived there and they caught hold of Kavindra
and Vimlesh and took them towards Thakurbadi. They killed
them by cutting their throats. In all, they killed 34 persons on
that day. They also blew up his house by using dynamite. They
snatched the ornaments of his daughter-in-law Rina Devi. He
states that later on he came to know that the miscreants killed
his nephew Ranjay Sharma. He states that on that day 34-35
persons were killed by the miscreants. He states that the police
had enquired from him during investigation. He did not identify
any of the miscreants in dock.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
18. Suresh Sharma (P.W.4) deposed before the court
on 7th February, 2008. In his deposition, he states in para 1 that
at the time of occurrence he was with his brother Arjun Singh
(P.W.3) and others (not examined) at his doorstep. In para 2, he
states that party members came to his house carrying torch
lights. They were looking for members of Ranveer Sena. He
also states that Rajeshwar Sharma (P.W.7) got involved with the
miscreants. He further states that the miscreants tied his hands
and those of Sachidanand Sharma, Naresh, Kavindra (deceased).
During this time, he managed to escape. In para 4, he claims to
identify Uma Paswan as one of those aggressors, who had tied
his hands. In the same para, he also claims that his son Ranjay
Sharma was killed and Ajay Sharma (P.W. 25) was injured.
19. In his cross examination in para 12, he states that
when he was caught by the miscreants, his brother Arjun Singh
(P.W. 3) was present. In para 16 he states that he had hidden
himself in Mahesh Sharma's house. In Para 17, he states that the
night of occurrence was dark.
20. Sanjay Kumar (P.W.5) deposed before the court
on 15th May, 2008. In his deposition, he states that on 18th
March, 1999 at 7:30 PM he was at his door and was operating
flour mill with his brother Om Prakash. At that time, Sadan
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Badhai and Madan Badhai were also present. In the meantime,
miscreants came there and caught him and his brother Om
Prakash and brought them to Thakurbadi. The miscreants tied
their hands and legs. They slit the throat of his brother Om
Prakash with pasuli. In the meantime, he fell down and the
miscreants threw the dead bodies over him due to which his life
was saved. He states that he identified Bigan Kahar, Sukhu
Yadav, Bichesh Yadav, Prahlad, Ramesh, Dukhan Manjhi and
Dukhan Kahar in the light of torch. According to him, the
occurrence continued for about 2-3 hours.
21. Shyam Nandan Singh (P.W.6) deposed before the
court on 10th June, 2008. He supported the killing of several
persons near Thakurbadi on the date of occurrence. He claims to
identify Bachesh Yadav, Sukhu Yadav, Bifan Manjhi, Gond
Manjhi and Ram Kewal Manjhi in the light of torch. However,
he did not identify any accused in the dock.
22. Bali Ram Sharma (P.W.6-a) deposed before the
court on 3rd September, 2008. In his deposition, he claims that
about 20-25 miscreants entered his house, caught hold of his
uncle's hand and took him away. He identified Bachesh Yadav,
as one of the accused, who had come to his house. He states that
the miscreants were carrying torches and that he climbed a tree.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
23. In cross-examination, he admits that he had not
claimed to identify any of the miscreants in his statement under
Section 161 of the Cr.P.C. He further clarified that he had told
the police that 20-30 persons had entered his house, but he could
not say who had entered, as he did not know any one's name.
24. Rajeshwar Singh (P.W.7) deposed before the court
on 20th September, 2008. In his deposition, he states that on 18 th
March, 1999, at the time of occurrence, he was at the verandah
of Girijesh Singh along with Nageshwar Singh, Kamlesh and
Balram Singh. He heard hulla about arrival of party members.
He saw that they had tied the hands of Suresh Sharma. When he
enquired, he was told that they were taking Suresh Sharma for
identification of members of Ranveer Sena. He further states
that he engaged himself with the miscreants and Suresh Sharma
managed to escape. He states that the miscreants assaulted him
with butt of gun. According to him, they were carrying torch,
gun and country made pistol. He further states that the
miscreants slaughtered several persons at Thakurbadi. He claims
to identify Mishri Manjhi and Ganauri Ram. In cross-
examination, he states that he went to Saharsa O.P. and
remained there for the whole night.
25. Arvind Kumar (P.W.8) deposed before the court
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
on 16th June, 2009. He states in paras 1 and 2 that he was at
Arjun Singh's doorstep at the time of occurrence. He saw about
30-35 miscreants, who were looking for Ranveer Sena
members. At this time, Rajeshwar Singh got involved in a
scuffle with the miscreants. In para 3 he claims to recognize
Venkatesh Manjhi, Bhodu Manjhi, Budhan Yadav, Mishri
Manjhi, Naresh Ram, Bigan Ram, Vikash Yadav, Kariman
Paswan, Vyas Yadav, Karu Yadav, Mungeshwar Yadav and
Ganauri Manjhi. He further states that he fled away and
concealed himself. He also heard sound of firing and the slogan
"MCC Zindabad". He states that after 11:00 PM he went to
Thakurbadi where he saw several dead bodies. Throats of all
bodies were cut and their abdomen torn. In para 11, he identified
only Ganauri Manjhi and no other accused person.
26. Girija Devi (P.W.9) deposed before the court on 6 th
November, 2009. She states in her deposition that ten years ago
while she was sitting at the door of Chandra Bhushan Sharma,
10-15 persons being armed with gun in police uniform came
there. They were enquiring about the members of Ranveer Sena.
They caught hold of Chandra Bhushan Sharma and Arun Kumar
and dragged them away. They killed Chandra Bhushan Sharma
by cutting his throat. They also injured Arun Kumar, but he
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
survived. She states that she could identify only Dully Yadav
amongst the miscreants.
27. Pankaj Kumar (P.W.10) identifies his signature on
the inquest reports of Chandra Bhushan Sharma, Rohit Kumar,
Satyendra Kumar, Tulsi Sharma and Awadh Kishore, which
were marked as Exhibits- 1 to 1/4 respectively.
28. Rakesh Kumar (P.W.11) identifies his signature on
the inquest reports of Lalan Sharma, Ram Pravesh, Ram Slok
Singh, Jwala Sharma, Nand Lal Singh, Awadhes Sharma,
Sanjeev Kumar and Sachidanand Singh, which were marked as
Exhibits- 2 to 2/7 respectively.
29. Similarly, Krishna Bihari Sharma (P.W.12)
identifies his signature on the inquest reports of Lalan Sharma,
Ram Pravesh, Ram Slok Singh, Jwala Sharma, Nand Lal Singh,
Awadhesh Sharma, Sanjeev Kumar and Sachidanand Singh,
which were already marked as Exhibits- 2 to 2/7.
30. Likewise, Ravindra Sharma (P.W.13) identifies
his signature on the inquest reports of Awadh Kishore,
Satyendra Sharma @ Gulatan Sharma, Rohit, Tulsi and
Bhushan, which were marked as Exhibits- 3 to 3/4 respectively.
31. Dinesh Sharma (P.W.14) deposed before the court
on 22nd February, 2010. In his deposition, he states that the
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
occurrence took place on 18th March, 1999 at 7:30 PM. He saw
that one Chhotan Manjhi being armed with country made pistol
was trying to locate the family members of his neighbor
Madheshwar Sharma. When he could not locate them, he tried
to break open his door. When he failed, he came on the terrace
of Madheshwar Sharma. He states that he concealed himself
under the sacks and his neighbor Pramila Devi covered the
sacks with a thick blanket. In the meantime, 15-20 miscreants
came on the roof of his house. He identified Dwarik Paswan,
Gorai Paswan, Satyendra Das, Shambhu Das, Shambhu Dom,
Ramesh Yadav, Bhikhan Manjhi and Sadhu Bhuiyan amongst
them, who were armed with country made pistol and were
flashing torch light. He states that he kept himself hiding in the
same position till 3:00 AM. He came out of the hiding only after
the police had arrived. He identified Gorai Paswan in the dock.
In cross-examination, he admits that it was a dark night. He also
admits that he came out of hiding three hours after the
miscreants had left the village.
32. Ran Vijay Sharma (P.W.15) deposed before the
court on 22nd February, 2010. He states that while he was going
to attend call of nature, he saw near the verandah of Surendra
Singh that armed persons in police uniform were coming. He
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
states that thereafter he fled away and hid himself. Then he
states that Awadhesh Singh (deceased) was being brought down
from the roof by Natu Yadav, Budhan Yadav, Chandar Yadav
and Navrup Yadav. After the miscreants left the place, he saw
that Awadhesh and Jitendra were killed. He states that of all the
accused persons he had named before the police, none were
present in the court. After clearly giving up that the persons
whom he named before the police were not present, he
identified the accused Budhan Yadav in dock.
33. In cross-examination, He states that the incident
created quite a scene of tumult in the village. He states that
everyone was desperate to seek a good hiding place. He claims
that he concealed himself at a place where a house is located
and where no one had access. He states that on the arrival of the
Police he came out of his house. He further admits that Budhan
Yadav was to him a known person.
34. Chinta Devi (P.W.16) deposed before the court on
8th March, 2010. She also supports the killing of several persons
in the village on the date of occurrence. She claims to identify
Radhey Shyam, Dully Yadav, Kariman Yadav and Ramesh
Yadav. In cross-examination, she states that four days prior to
the occurrence, four persons had visited the village with Radhey
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Shyam, Dully Yadav, Ramesh Yadav, Kirani Yadav and Kariman
Yadav.
35. Mithilesh Sharma (P.W.17) deposed before the
court on 8th March, 2010. In his deposition, he states that the
occurrence had taken place in the year 1999 at about 7:30 PM.
At that time, he was at his house. He heard that miscreants had
arrived. He states that the villagers started running helter-skelter.
He concealed himself. The miscreants caught hold of the
villagers and took them towards the Thakurbadi. Thereafter, the
miscreants raised slogan and resorted to firing and left the place.
He states that subsequently the police arrived. He further states
that several persons were killed. However, he did not recognize
any of the miscreants.
36. Manorma Kuwar (P.W.18) deposed before the
court on 12th March, 2010. In her deposition, she states that on
18th March, in the evening at 7:00 PM, she was at her house. She
heard hulla that miscreants had arrived. She came out of the
house and saw that the miscreants had caught hold of her son
Vimlesh. She tried to rescue him but they dragged him towards
Thakurbadi. They slaughtered her son in her presence. She
further states that in all 34 persons were killed and five others
were injured. She further states that her younger son Kamlesh
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
was also killed. She claims to identify Bodha Bhuiyan, Kariman
Paswan, Raj Nath Kahar @ Naresh, Radhey Shyam, Prahlad
Goverdhan, Ramesh and Amrendra. In cross-examination, she
admits that the persons whose name she has taken are not
present in court.
37. Janeshwar Sharma (P.W.19) deposed before the
court on 12th March, 2010. He has supported the prosecution
case to the extent that on the date and time of occurrence 34
persons were killed and five others were injured by the MCC
cadre, but he did not name any accused. In cross-examination,
he admits that the miscreants were about 200-400 in number.
38. Balkeshwari Devi (P.W.20) has also supported the
prosecution case to the extent that on the date and time of
occurrence 34 persons were killed and five others were injured
by the MCC cadre. Her husband Ram Pravesh Sharma was
killed in the occurrence. She states the name of accused Gerwa
Bhuiyan only. She did not identify any accused in court.
39. Sharda Devi (P.W.21) also supported the
prosecution case that on the date and time of occurrence 34
persons were killed and five others were injured by the MCC
cadre. She claims to identify Vishu Ram, Butta Thakur, Genda
Bhuiyan, Modi Bhuiyan and Hare Kishore amongst the
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
miscreants. However, she states that the accused persons whom
she named were not present in the court.
40. Madhulika Kumari (P.W.23) also supported the
prosecution case that on the date and time of occurrence 34
persons were killed and five others were injured by the MCC
cadre. She states that her father Awadh Kishore Sharma and her
brother Madhukar Kumar were killed in the occurrence. She has
not stated name of any of the accused.
41. Mukesh Kumar (P.W.24) deposed before the court
on 29th September, 2010. In his deposition, he states that on 18 th
March, 1999, at about 7:30 PM, he was at his house. He heard
hulla that MCC cadre had arrived. He states that he went on his
terrace. He states that some unknown persons entered into his
courtyard. When he enquired from them, they asked him to
come down. While he was descending of his stairs, one of the
miscreants stated that if he would not come down he will be
shot dead. On this, he went back to his terrace. He states that he
took his gun and wanted to go out of his house but his mother
stopped him. He states that thereafter he concealed himself. He
saw that the miscreants had caught hold of his nephew Tunnu
and asked for the gun. He states that his mother gave them the
gun. Thereafter, they started searching for him and when they
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
could not locate him, they locked his room and went away. He
states that his verandah was blown by explosion. He further
states that when he came out and went to Thakurbadi, he found
that 34 persons were killed. He also saw dead bodies of his
brother Neeraj Kumar and uncle Birendra Kumar. He states that
4-5 persons had sustained injuries also. They were taken to
hospital. He further states that because of dark night, he could
not identify any of the miscreants.
42. Ajay Kumar (P.W.25) deposed before the court on
30th October, 2015. He states that on 18th March, 1999, at about
7:30 PM, he was at his house with his family members. In the
meantime, 15-20 outsiders came and took him and others to
Thakurbadi. At Thakurbadi, he and others were tied and
surrounded by 30-35 persons. He was assaulted by the
miscreants. He recognized Lalan Pasi. In cross-examination, he
states that he was examined by police 5-6 months after the
occurrence. He further states that at Thakurbadi he pretended to
become unconscious and kept his eyes closed as long as the
miscreants were there.
43. Sri Niwas Sharma (P.W.26) deposed before the
court on 2nd November, 2015. He states in his deposition that on
18th March, 1999 he was at his house. Around 7:00 PM he heard
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
an announcement being made that members of Ranveer Sena
were being sought. He states that he took refuge in the field near
his house, amidst the chaff. He further claims that he identified
Bachesh Yadav and Radhey Shyam when they were taking one
Sanjeev Kumar (deceased) towards Thakurbadi through the field
in which he was hiding, at around 10:00 PM. He also states that
he had signed over the inquest report of Vimlesh and Kamlesh.
In his cross examination, he states that he concealed himself so
completely that he could not be seen by anyone and remained so
hidden for 3 hours. He states that when all the miscreants left,
he came out of hiding. He admits that accused Bachesh was
known to him from before the occurrence.
44. Vishambar Singh (P.W.27) deposed before the
court on 1st December, 2015. He states that he had taken over
the investigation of the case from the then investigating officer
Jamuna Singh on 18th June, 1999. He states that in course of
investigation he had sent spear, pasuli, farsa and residues of
explosive to the Forensic Science Laboratory. He further states
that he had received the injury reports of the injured Mohan and
Munna Kumar from Magadh Medical College, Gaya. He states
that during investigation he had recorded the statements of
Rakesh Kumar, Mohan Sharma, Arun Kumar @ Munna and
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Bibha Kumari. He further states that he had handed over the
charge of investigation to the police Inspector Alok Kumar on
14th October, 1999. He proved carbon copies of the seizure lists
in the writing of his predecessor Jamuna Singh, which were
marked as Exhibits-2 and 2/1. He proved the fardbeyan of the
informant Chintamani Devi reduced in writing by the aforesaid
Jamuna Singh, which was marked as Exhibit-4. He also proved
the formal FIR of Karpi P.S. Case No. 22 of 1999 drawn in the
writing and signature of Arjun Minz, which was marked as
Exhibit-5. He proved the charge-sheet nos. 41 of 1999, 54 of
2000, 8 of 2000 and 105 of 1999 submitted by the police in
connection with Karpi P.S. Case No. 22 of 1999, which were
marked as Exhibits - 6 to 6/3. He states that the first charge-
sheet is in the writing of Jamuna Singh and all the
supplementary charge-sheets were submitted by his successor
Alok Kumar. He also proved the Pamphlet, which was seized
from the place of occurrence, which was marked as Material
Exhibit -1. He states that the then officer-in-charge of Karpi
Police Station Jamuna Singh and police officer Alok Kumar had
passed away. In cross-examination, he admits that no TIP was
undertaken in the case. He also admits that he did not arrest any
accused in connection with the present case.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
45. Dr. Srinath Prasad (P.W.22), who was posted at
Sadar Hospital, Jehanabad had conducted autopsy on the dead
bodies of (1) Babu Lal Singh @ Shyam Narayan Singh, (2)
Awadh Kishor Sharma, (3) Sanjeev Kumar, (4) Chandra
Bhushan Sharma, (5) Parikshit Sharma, (6) Ramnath Sharma
and (7) Jitendra Sharma on 19th March, 1999 between 4:00 PM
and 7:15 PM under the orders of the District Magistrate at
Senari village. He proved the respective post-mortem reports of
the seven deceased persons, which were marked as Exhibits- 7
to 7/6. The respective post-mortem reports would reflect the
following ante-mortem injuries on the bodies of the deceased
persons: -
Babu Lal Singh @ Shyam Narayan Singh
Mouth and eyes partially opened.
Both upper arms tied on the back.
Incised wound at the level of C-3, from front of
neck 8" x 1½" x bone deep from left side by sharp
cutting weapon including neck muscles, carotid
sheath, neck vessels & nerves & trachea.
Viscera pale, heart empty both sides, stomach
contains partially digested food present.
Time elapsed after death- Eighteen to
Twenty-four hrs. (18-24 hrs.) Mode of weapon-
Sharp cutting weapon may be sickle.
Cause of death- Shock and haemorrhage
leading to C/R failure due to above injuries.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Awadh Kishor Sharma
Both arms (upper) tied on the back.
Incised wound at the level of C-4, from front of the
neck 8" x 1" x bone deep by sharp cutting weapon
including neck muscles, carotid sheath, neck
vessels & nerves & trachea.
Viscera pale, heart empty both sides, stomach
contains partially digested food present.
Time elapsed after death- Eighteen to
Twenty-four hrs. (18-24 hrs.) Mode of weapon-
Sharp cutting weapon may be sickle.
Cause of death- Shock and haemorrhage
leading to C/R failure due to above injuries.
Sanjeev Kumar
Mouth and eyes partially opened.
Both upper arms tied on the back.
Incised wound at the level of C-4, from front of
neck from left side 5½" x 1" x bone deep by sharp
cutting weapon including neck muscles, carotid
sheath, neck vessels & nerves & trachea.
Viscera pale, heart empty both sides, stomach
partially digested food present.
Time elapsed after death- Eighteen to
Twenty-four hrs. (18-24 hrs.) Mode of weapon-
Sharp cutting weapon may be sickle.
Cause of death- Shock and haemorrhage
leading to C/R failure due to above injuries.
Chandra Bhushan Sharma
Both upper arms tied on the back.
Incised wound at the level of C-4, from front of
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
neck 8" x 1½" x bone deep by sharp cutting
weapon including neck muscles, carotid sheath,
neck vessels & nerves & trachea.
Viscera pale, heart empty both sides, stomach
partially digested food present.
Time elapsed after death- Eighteen to
Twenty-four hrs. (18-24 hrs.) Mode of weapon-
Sharp cutting weapon may be sickle.
Cause of death- Shock and haemorrhage
leading to C/R failure due to above injuries.
Parikshit Sharma
Hands tied on the back.
Both legs tied.
Sharp cut wound at the level of C-4, from front of
neck 6½" x 1" x bone deep by sharp cutting
weapon including neck muscles, carotid sheath,
neck vessels & nerves and trachea.
Viscera pale, stomach partially digested food
present.
Time elapsed after death- Eighteen to Twenty-four
hrs. (18-24 hrs.) Mode of weapon-Sharp cutting
weapon may be sickle.
Cause of death- Severe Shock &
haemorrhage leading to C/R failure due to above
injuries.
Ramnath Sharma
Both hands tied on the back.
Incised wound at the level of C-5, from front of
neck 6" x 1" x bone deep by sharp cutting weapon
including neck muscles, carotid sheath, neck
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
vessels & nerves and trachea.
Viscera pale, heart empty both sides, stomach
partially digested food present.
Time elapsed after death- Eighteen to
Twenty-four hrs. (18-24 hrs.) Mode of weapon-
Sharp cutting weapon may be sickle.
Cause of death- Shock & haemorrhage
leading to C/R failure due to above injuries.
Jitendra Sharma
Hands tied on the back.
Legs tied.
Incised wound from the front of neck including
neck muscles, carotid sheath, neck vessels &
nerves 6" x 1" x bone deep at the level of C3 by
sharp cutting weapon.
Trachea at the lower level sharply cut.
Viscera pale, stomach partially digested food
present.
Time elapsed after death- Eighteen to
Twenty-four hrs. (18-24 hrs.) Mode of weapon-
Sharp cutting weapon may be sickle.
Cause of death- Severe Shock &
haemorrhage leading to C/R failure due to above
injuries.
46. Dr. Harish Chandra Hari (P.W. 28), who was also
posted as Medical Officer at Sadar Hospital, Jehanabad had
conducted autopsy on the dead bodies of (1) Awadhes Sharma,
(2) Kundan Sharma, (3) Rajesh Kumar, (4) Sanjeev Kumar, (5)
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Ram Pravesh Singh, (6) Pintu Sharma, (7) Jwala Sharma, (8)
Ramslok Sharma and (9) Nand Lal Sharma `on 19.03.1999
between 4:00 PM and 7:15 PM at village Senari under the
orders of the District Magistrate. He proved the post-mortem
reports of the aforesaid nine deceased persons, which were
marked as Exhibits 7/7 to 7/15. The respective post mortem
reports would reflect the following ante-mortem injuries on the
bodies of the deceased persons:-
Awadhes Sharma
Mouth and eyes partially opened.
Both hands tied on back.
Sharp cut injuries were present on front of neck,
extending from right to left of both lateral side of
neck (Size-6" x 1½" x bone deep at level of C-4.
All muscles sheath, nerve and vessels of front of
neck & trachea & esophagus were cutting. All
viscera pale, Heart empty, urinary bladder and
stomach partial undigested food material present
(empty)
Mode of death- Shock and haemorrhage caused by
sharp cutting weapon.
Time elapsed since death-18-24 hours.
Death due to shock and haemorrhage caused by
sharp cutting weapon.
Kundan Sharma
Mouth and eyes partially opened. Both hands tied
on back.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
(i) Sharp cut injuries on the front of neck,
extending from right to left lateral side of neck.
Size-6½" x 1½" x bone deep. Muscles sheath and
nerve of front of neck and trachea and esophagus
were cutting.
(ii) Sharp cutting injuries at middle of abdomen,
size- 5" x 1" x peritoneal deep.
All visceras pale, Heart empty, urinary bladder
empty, stomach partial foods material (undigested)
present.
Mode of death- Shock and haemorrhage due to
sharp cutting weapon.
Time elapsed since death-18-24 hours.
Death due to shock and haemorrhage due to sharp
cutting weapon.
Rajesh Kumar
Mouth and eyes partially opened.
Sharp cutting injuries on front of neck, extending
from left lateral side to right lateral side. Size-6" x
1" x bone deep (level C-3). All muscles vessels,
nerve front of neck and trachea esophagus cut.
Viscera were pale, Heart empty, stomach empty,
urinary bladder empty.
Mode of death- Shock and haemorrhage caused by
sharp cutting weapon.
Time since death-18-24 hours.
Death due to C.R. fracture, shock and haemorrhage
caused by sharp cutting weapon.
Sanjeev Kumar
Eye & Mouth were partially opened. Both the
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
hands tied on back.
(i) Sharp cutting injuries on the front of neck at the
level of C-4 of size-6" x 1½" x bone deep. All the
muscles vessels & nerve of front of neck and
trachea and esophagus were cutting upto lower
bone.
(ii) Sharp cutting injuries on middle of abdomen of
size- 5" x 1" x peritoneal deep. All visceras were
pale, Heart were empty, urinary bladder and
stomach were empty.
Mode of death- Shock and haemorrhage caused by
sharp cutting weapon.
Time elapsed since death-18-24 hours.
Death due to shock and haemorrhage caused by
sharp cutting weapon.
Ram Pravesh Singh
Mouth and eye partially opened. Both hands tied on
the back.
Sharp cutting injuries over the front neck size-6" x
1½" x bone deep (C-4) with cutting injuries of neck
muscle, vessels, nerve & trachea esophagus
extending left lateral to right lateral side of neck.
Sharp cutting injuries on the middle of abdomen
with injuries to abdominal muscle and upto
peritoneal size 6½" x 1" x peritoneal deep. All
visceras pale, stomach empty, heart empty, urinary
bladder empty.
Mode of death- Shock and haemorrhage caused by
sharp cutting weapon.
Time since death-18-24 hours.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Death due to C.R. fracture caused by shock and
haemorrhage leading by sharp cutting injuries.
Pintu Sharma
Eye and mouth partially opened. Both hand tied
back.
(i) Sharp cutting injuries on the front of neck with
injuries on the neck muscle, vessels, nerve and
trachea and esophagus upto cervical bone, Size-5"
x 1½" x bone deep (C-4).
(ii) Sharp cutting on the front of chest, size- 4" x 1"
x 1".
(iii) Sharp cutting injuries at lower abdomen, size-
6" x 1" x peritoneal deep. Abdominal viscera were
protruded out. Intestine were intact. Heart-empty,
viscera-pale, Stomach empty, urinary bladder
empty.
Mode of death- Haemorrhage and Shock caused by
sharp cutting weapon.
Time since death-18-24 hours.
Death due to shock and haemorrhage due to sharp
cutting weapon.
Jwala Sharma
Mouth and eye partially closed.
Sharp cutting injuries on the front of neck
extending from both lateral side of neck, size-6" x
1½" x bone deep upto cervical bone at the level of
C-3 with neck muscles, neck vessels, trachea,
esophagus and both shoulder. Visceras were pale.
Heard empty, stomach empty, urinary
bladder empty.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Time elapsed since death-18-24 hours.
Mode of death- Shock and haemorrhage caused by
sharp cutting weapon.
Death occurred due to C.R. failure and by shock
and haemorrhage due to sharp cutting weapon.
Ramslok Sharma
Mouth and eyes closed.
Sharp cutting injuries on the front of neck at the
level of C-4 extending from both lateral side of
neck. Size-7" x 1½" x bone deep upto cervical
bone. All the muscles & sheath, vascular nerve,
trachea and esophagus of front of neck were cut.
Heart empty, Viscera Pale, stomach empty, urinary
bladder empty.
Mode of death- Shock and haemorrhage caused by
sharp cutting weapon.
Time elapse since death- within 18-24 hours.
Death due to C.R. failure caused by shock and
haemorrhage due to sharp cutting weapon.
Nand Lal Sharma
Mouth and eye partially opened. Both upper arms
tied on back.
Incised wound at the level of cervical 4 from front
of neck 7" x 1¼" x bone deep from left side by
sharp cutting weapon including neck muscle, neck
vessel and nerve and trachea and esophagus. All
visceras pale, Heart empty, urinary bladder empty,
stomach empty.
Time elapsed since death - 18-24 hrs.
Mode of death - by shock and haemorrhage caused
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
by sharp cutting weapon.
Death due to shock and haemorrhage caused by
sharp cutting weapon.
47. Dr. Vinay Prakash Keshav (not examined)
conducted post-mortem examination on the bodies of (1)
Vimlesh Sharma, son of Kapildeo Sharma, (2) Upendra Kumar,
son of Vyas Sharma, (3) Satyendra Kumar, son of Raghuraj
Sharma, (4) Ram Dayal Sharma, son of Anirudh Sharma, (5)
Kamlesh Kumar, (6) Tulsi Sharma and (7) Kavindra Sharma.
48. Dr. Harish Chandra Hari (P.W. 28) has proved
the seven post-mortem reports prepared by Dr. Vinay Prakash
Kesav (not examined), which were marked as Exhibits- 7/16 to
7/22. He also proved 11 post-mortem reports prepared by
Dr.Mithilesh Kumar(P.W.30), which were marked as Exhibits
7/23 to 7/33.
49. Dr. Mithilesh Kumar (P.W. 30), who was also
posted as Medical Officer at Sadar Hospital, Jehanabad had
conducted autopsy on the bodies of (1) Sukhalu Sharma, (2)
Lalan Sharma, (3) Sukhan Sharma, (4) Sachidanand Sharma, (5)
Jitendra Sharma, (6) Raju Sharma, (7) Om Prakash, (8) Jhabbal
Kumar, (9) Pintu Sharma, (10) Birendra Sharma and (11) Rohit
Sharma on 19.03.1999 under the orders of District Magistrate
on the site of occurrence at village-Senari. He explained the
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
injuries, the time elapsed since death and the cause of death of
the 11 persons whose autopsy had been conducted by him in the
following manner: -
Sukhalu Sharma
Incised wound over front of neck at level of Hyoid
bone, 6" x 1" x 4" with cutting of wind pipe and
carotid sheath with its content and related muscles.
Internal examination: - Both chambers of heart-
Empty. Liver, Lung, Spleen, Kidney- Pale,
Bladder-Empty. Stomach contains 3 oz. partially
digested food.
Cause of death- Haemorrhage and shock due to
sharp cut injuries over neck by sharp weapon.
Time since death-12-24 hours.
Lalan Sharma
Bruise- both wrists circumferentially about 1"
wide.
Incised wound over front of neck at level of Hyoid
bone by cutting of both carotid sheath with its
content. Cutting of wind pipe with related muscles-
8" x ½" x 4".
Internal Examination: - Both chamber of Heart
Empty, Liver, Lung, Spleen, Kidney- Pale.
Bladder- Empty. Stomach contains about 3 oz
partially digested food.
Cause of death- Haemorrhage and shock due to
sharp cut injury of neck by sharp weapon.
Time elapsed since death-12-24 hours.
Sukhan Sharma
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Incised wound over neck at level of thyroid
cartilage, 8" x 2" x 4".
Cutting of both sides of carotid sheath with its
content and wind pipe and related muscle.
Internal Examination: - Both Chamber of Heart
Empty, Liver, Lungs, Spleen, Kidney-Pale.
Bladder- Empty. Stomach contains semi digested
food about 3 oz.
Cause of death- Haemorrhage and shock due to
sharp cutting over neck by sharp weapon.
Time since death- 12-24 hours.
Sachidanand Sharma
Incised wound just below the right side of ear over
face, 6" x ¼" x 2" and incised wound at level of
thyroid cartilage over neck behind one side of the
Sternomastoid to other side. Cutting of both side of
carotid sheath with its content including muscle
and cartilage.
Internal Examination: - Both Chamber of Heart -
Empty, Liver, Lung, Spleen, Kidney- Pale.
Stomach contains digested food. Bladder- Empty
Cause of death- Haemorrhage and shock due to
sharp cut injury by sharp weapon.
Time elapsed since death- 12-24 hours.
Jitendra Sharma
Bruise both wrist circumferentially. Incised wound
over front of neck at level of Hyoid bone, 10" x ½"
x 4". Cutting of both sides of carotid sheath with its
content and related structure muscle and wind pipe.
Internal Examination: - Both Chamber of Heart
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Empty. Liver, Lung, Spleen, Kidney- Pale.
Bladder- Empty. Stomach contains partially
digested food about 2 oz.
Cause of death- Haemorrhage and shock due to
sharp cut injury over neck.
Time elapsed since death-12-24 hours.
Raju Sharma
Incised wound over neck at level of thyroid
cartilage, 8" x ½" x 5". Cutting of both side of
carotid sheath and its content and related muscle
and cartilages of wind pipe.
Internal Examination: - Both chamber of Heart -
Empty. Liver, Lung, Spleen, Kidney-Pale. Bladder-
Empty
Cause of death- Haemorrhage and shock due to
incised wound over neck by sharp weapon.
Time elapse since death-12-24 hours.
Om Prakash
Incised wound over neck thyroid cartilage 8" x 1" x
4".
Cutting of both side of carotid sheath with its
content. Cutting of wind pipe and muscle onward.
Internal Examination:- Both chamber of Heart -
Empty. Liver, Lung, Spleen, Kidney Pale. Bladder-
Empty. Stomach contains about 2 oz partially
digested food.
Cause of death- Haemorrhage and shock due to
sharp cut over neck by sharp weapon.
Time since death-12-24 hours.
Jhabbal Kumar
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Incised wound over front of neck at level of Hyoid
bone, 8" x 2" x 6". Cutting of both sides of carotid
sheath with its content and wind pipe, structure and
muscle cut in way.
Internal Examination: - Heart both chamber -
Empty. Liver, Lung, Spleen, Kidney-Pale. Bladder-
Empty. Stomach contains about 3 oz semi digested
food.
Time elapse since death-12-24 hours.
Cause of death- Haemorrhage and shock due to
sharp cut over neck by sharp weapon.
Pintu Sharma
Incised wound over the front of neck at level of
thyroid cartilage at right side 8" x 1" 6". Incised
cutting of Rt carotid sheath with its content and
cutting of wind pipe and related muscle.
Internal Examination: - Both chamber of Heart -
Empty, Liver, Lung, Spleen, Kidney-Pale. Bladder-
Empty. Stomach contain about 3 oz semi digested
food.
Cause of death- Haemorrhage and shock due to
sharp cut injury over neck by sharp weapon.
Time elapse since death-12-24 hours.
Birendra Sharma
Bruise both wrists circumferential.
Incised wound front of neck to right side of back
over neck about 8" x 1" x 4" with incised wound of
thyroid, carotid sheath with its content and related
muscle.
Internal Examination: - Both chamber of Heart
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Empty. Liver, Lung, Spleen, Kidney-Pale. Bladder-
Empty. Semi digested food about 2 oz in stomach.
Cause of death- Haemorrhage and shock due to
sharp cut injury over neck.
Time elapse since death- 12-24 hours.
Rohit Sharma
Incised wound over front of abdomen at level of
Xiphisternum to umbilicus 6" x 1" x 6" with
protrusion of jaw.
Incised wound over front of neck 6" x 2" x 4' with
incised wind pipe, Carotid sheath with its content
of both side.
Internal Examination: - Both chamber of Heart
Empty, Liver, Lungs, Spleen, Kidney-Pale.
Bladder-Empty. Stomach contains 3 oz semi
digested food.
Cause of death- Haemorrhage and shock due to
sharp cutting injury over neck and abdomen by
sharp weapon.
Time since death-12-24 hours.
50. P.W.29 has proved his writings and signature over
the aforesaid 11 post-mortem reports, which were already
marked as Exhibits-7/23 to 7/33.
51. Dr. Abhay Kumar Jha Suman (P.W.30) had
examined five injured persons, namely, (1) Rakesh Kumar, (2)
Ajay Kumar, (3) Mathura Sharma, (4) Anil Sharma and (5)
Bibha Kumari at Magadh Medical College Hospital, Gaya on
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
19th March, 1999. At that time, he was posted as Senior Resident
in the Department of Surgery. He proved the injury reports of
the aforesaid five injured persons, which were marked as
Exhibits-8 to 8/4. The injury reports reflect the following
injuries on their person :-
(1) Rakesh Kumar
i) One incised wound over right iliac fossa 2.5" x 1.5" x
communicating to peritoneal cavity through which
part of small intestine protruding. At laparotomy
peritoneal cavity was full of blood and fecal matter,
perforation was found in ilium 2" x 1". The lower two
ribs in right side were incised in the upper part of
wound.
ii) One incised wound over neck extending from right
side to left side, 6" x ½" x muscle deep and on the
cleft of wound in mid line thyroid cartilage was cut.
iii) One incised wound over right Tina almost dissecting
it.
iv) One incised wound over right elbow 2" x 1" x ½".
v) One incised wound over chin 1" x ½" x ¼".
vi) One incised wound over neck in left lower part 2" x
½" x ½".
vii) Multiple shallow incised wound over lower part of
neck over upper part of chest.
viii) One incised wound over right side of chest ½" x ¼"
x ¼".
ix) Multiple incised wound over left upper part of neck.
x) One incised wound over left upper part of chest 1.5" x
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
½" x ½".
xi) One incised wound over left upper part of middle of
neck, ½" x ¼" x ¼".
All above injuries were caused by sharp cutting weapon
and injuries no. (i) and (ii) were grievous in nature, age of
the injuries within 12 hours.
2. Ajay Kumar Sharma
i) One incised wound over lower part on the right side of
neck 2.5" x 1" x ½" muscle deep.
ii) One incised wound over right iliac fosa, 2" x 1" x
communicating to peritoneal cavity through which
part of small intestine protruding. At laparotomy
peritoneal cavity was full of blood and fecal matter,
perforation was found in ilium.
Both the above injuries were caused by sharp cutting
weapon and injuries were grievous in nature, age of the
injuries within 12 hours.
3. Mathura Sharma
i) Incised wound over neck in middle on upper part with
skin flap hanging, 2" x ½" x ½".
ii) Incised wound over lower part of neck 1.5" x ¼" x ¼".
iii) Incised wound over right chick 1" x ½" x 1".
iv) Incised wound over right upper part of neck 3" x 1.5"
x 1".
All the injuries were simple in nature caused by sharp
cutting weapon, age within 12 hours.
4. Anil Sharma
One incised wound over upper part of left thigh 3" x
1.5" x 1".
Injury was simple in nature caused by sharp cutting
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
weapon, age within 12 hours.
5. Bibha Kumari
No evidence of external injury on her body was found.
52. After closure of the prosecution case, in order to
enable the appellants to explain the circumstances appearing
against them, the Trial Court recorded their statements under
Section 313 of the Cr.P.C in which they denied the charges and
pleaded their innocence. The questions put to all the 38 accused
persons facing trial by the Trial Court were uniform. They are as
under: -
"Q1. Have you heard the evidence of the witnesses?
Q2. There is evidence against you that on 18.03.99
in the night at village Senari, P.S.-Karpi, District-
Jehanabad, Present District-Arwal, you in
association with other accused persons having
common intention and being armed with deadly
weapons committed murder of 34 persons of Senari
and caused injury to other persons with intention to
commit their murder.
Q3. There is also evidence against you that you
caught all the deceased and injured persons in their
house and took them to Senari Thakurbadi from
their house to commit their murder and murdered
them by slitting their neck and cutting their
abdomen?
Q4. There is evidence against you that you used
illegal firearm to commit the said occurrence?
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Q5. There is evidence against you that with
intention to commit occurrence and terrorize
persons you exploded bomb with other accused
persons?
Q6. There is also evidence against you that you are
a member of a banned extremist organization
M.C.C. and while committing occurrence you
raised slogan-MCC Zindabad with other persons?
Q7. What have you got to say in your defence?"
53. The defence did not lead any oral or documentary
evidence during trial.
54. After analyzing the evidence on record and, after
hearing the arguments on behalf of the parties, the Trial Court
found the prosecution case proved beyond reasonable doubt
against the 13 appellants in these appeals and two others
namely, Vyas Yadav @ Naresh and Ganauri Manjhi and
acquitted 23 accused persons for lack of evidence, vide
impugned judgment dated 27th October, 2016.
55. Assailing the impugned judgment of conviction
and order of sentence, Mr. Surendra Prasad Singh, learned
senior advocate appearing for the appellants in Cr.Appeal (DB)
Nos. 1271 of 2016, 32 of 2017 and 96 of 2017 being assisted by
Mr. Krishna Prasad Singh, learned senior advocate and Mr.
Bhashkar Shankar, learned advocate submitted that the incident
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
occurred on 18th March, 1999 between 7:30 PM and 11:00 PM
at village Senari. It was a dark night as stated by Suresh Sharma
(P.W.4) in para 17 and Dinesh Sharma (P.W.6) in para 8.
Moreover, Bali Ram Sharma (P.W.6-a) also stated in para 8 that
as it was a dark night, it was not possible to identify any body in
the absence of artificial illumination. He submitted that there
was no electricity in the village and it would not have been
possible to identify the miscreants involved in the offence. He
submitted that according to some of the witnesses they
identified some of the miscreants as the miscreants were
carrying torches and were flashing them in order to identify the
victim. He submitted that under similar circumstance the
Supreme Court has doubted the identification of the miscreants
in Ashoksinh Jayendrasinh vs The State of Gujarat, since
reported in (2019) 6 SCC 535 and Tamilselvan Vs. State, since
reported in (2008) 7 SCC 755.
56. Mr. Singh, learned senior advocate further
submitted that there was no Test Identification Parade (for short
'TIP') to pinpoint the assailants during investigation. The
conviction of the appellants is based on dock identification,
which took place about 7 years after the incident and extended
to about 16 years. Relying on the judgments of the Supreme
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Court in Dana Yadav @ Dahu & Ors. vs State of Bihar, since
reported in (2002) 7 SCC 295; Krishna & Anr vs State Of U.P,
since reported in AIR 2007 SC 2452 and Mulla v. State of U.P.,
since reported in AIR 2010 SC 942, he submitted that such dock
identification could not be made basis of a conviction.
57. Mr. Singh, learned senior advocate next submitted
that according to the prosecution case about 500 miscreants
participated in the incident in which 34 persons were murdered.
In such a situation, in view of the judgments of the Supreme
Court in Masalti v. State of Uttar Pradesh, since reported in
AIR 1965 SC 202; Binay Kumar Singh v. State of Bihar, since
reported in AIR 1997 SC 322; Chandra Shekhar Bind and Ors.
v. State of Bihar, since reported in (2001) 8 SCC 690; and
Ranjit Singh & Ors vs State of M.P., since reported in AIR
2011 SC 255, at least two witnesses, who deposed in a
consistent manner regarding the participation of the accused
would be necessary to hold the accused guilty.
58. Mr. Singh, learned senior advocate further
submitted that six of the appellants, namely, Mungeshwar
Yadav, Butai Yadav, Dwarik Paswan, Gorai Paswan, Vinay
Paswan and Arvind Paswan have been identified by a single
witness. He submitted that as there were many miscreants and
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
there was darkness, the evidence in relation to their
identification and their participation in the commission of the
offence is wholly insufficient to warrant conviction.
59. Referring to the deposition of the witnesses
examined during trial, Mr. Singh, learned senior advocate
contended that the appellants Satendra Das, Lalan Pasi, Gopal
Sao and Uma Paswan were identified by two witnesses. He
contended that the witnesses, who identified them have not
given any consistent account of the incident nor have they stated
about their overt acts. He argued that the Trial Court has failed
to appreciate the evidence in correct perspective and has come
to an erroneous conclusion.
60. He submitted that the appellant Bachesh Kumar
Singh has been identified by four witnesses, namely, Vishwa
Vijay Sharma (P.W.2), Suresh Sharma (P.W.4), Bali Ram
Sharma (P.W.6-a) and Sri Niwas Sharma (P.W.26). However, on
a close scrutiny of the deposition made before the court, it
would be manifest that they are not reliable witnesses. He
argued that no overt act has been attributed against the appellant
Bachesh Kumar Singh. His presence in the unlawful assembly is
also not established.
61. Lastly, he submitted that the prosecution has not
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
led any evidence whatsoever to prove that there is no chance of
rehabilitation of the appellants. He submitted that the question
of imposition of death penalty has been dealt with in detail by
the Supreme Court in Chhannu Lal Verma v. State of
Chhattisgarh, since reported in AIR 2019 SC 243 wherein it
has been held that death sentence should not be imposed unless
there is not a single mitigating factor and that evidence has been
led by the prosecution to prove that there is no chance of
rehabilitation. He further contended that there is no evidence to
suggest that during the period of trial or after conviction the
behavior of the appellants in jail is such as to indicate that there
is no chance of rehabilitation. Moreover, there is no evidence
that the appellants have any criminal antecedent. He contended
that the appellants belong to a depressed class and in view of the
surrounding circumstances, it is not a fit case for imposition of
death sentence.
62. Mr. Ansul, learned advocate appearing for the
appellants in Cr.Appeal (DB) No. 184 of 2017 while adopting
the submissions made by Mr. Surendra Singh, learned senior
advocate, submitted that the appellants herein are not
challenging the homicidal death of 34 persons and injuries
sustained by five persons. They are challenging the allegation
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
that they are perpetrators of a serious offence.
63. He submitted that from the evidence adduced
during trial it would be evident that the witnesses were not in a
position due to dark night, commotion and absence of proper
source of identification to actually see the perpetrators or to
witness the killings taking place. He contended that the normal
human behavior in a case like the present one would impel a
person to run away and place himself in a position of safety and
not to place himself in a position from where he could witness
the occurrence.
64. He further contended that from a perusal of the FIR
it would appear that the informant first went to Thakurbadi
following her husband and son and saw the killings and
thereafter she returned. She again went to Thakurbadi where she
met large number of villagers, who told her about the
occurrence in detail. The FIR has been lodged after that. The
same means that the FIR not only contains the version of the
informant but also the persons, who reached the Thakurbadi in
the immediate aftermath of the occurrence. He contended that
the FIR contains the names of 16 persons, but the appellants are
not amongst them. Thus, the names of these appellants were not
known either to the informant or to other villagers, who
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
gathered at the Thakurbadi in the immediate aftermath of the
occurrence. He contended that two of the appellants, namely,
Budhan Yadav and Gopal Sao are the residents of village Senari.
They must have been known to the informant and other
witnesses whose version went to lodging of the FIR till these
two co-villagers apart from others have not been named in the
FIR. The omission of their names in the FIR raises serious doubt
about their involvement in the case.
65. He contended that the appellants were not caught
on the spot and no recoveries were made from them to connect
them in the instant case. Apart from identification in court, there
is absolutely no material against them to hold them guilty. He
contended that the material relied upon by the trial court for
convicting the appellant is nothing but the identification of the
appellants in dock by particular witnesses. He urged that no
evidence brought on record between the charge and conviction
has been put to any of the appellants while examining them
under Section 313 of the Cr.P.C. Hence, in view of the settled
law, the material not put to the accused cannot be taken into
consideration for convicting the accused. He submitted that the
trial court while convicting the appellants has erred both on law
as well as on facts.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
66. Mr. Sunil Srivastava, learned advocate appearing
for the appellants in Cr.Appeal (DB) Nos. 30 of 2017 and 62 of
2017 has adopted the submissions made by Mr. Surendra Prasad
Singh, learned senior advocate and Mr. Ansul, learned advocate.
He contended that the arguments advanced by them completely
cover the case of the appellants whom he represents.
67. Ms. Surya Nilambari, learned advocate appointed
as amicus curiae in Death Reference No. 2 of 2017 submitted
that six of the convicts, namely, Mungeshwar Yadav, Butai
Yadav, Dwarik Paswan, Gorai Paswan, Vinay Paswan and
Arvind Paswan have been identified by only one witness. She
submitted that in their case the conviction should be
reconsidered within the parameters laid down by the Supreme
Court in Masalti v. State of Uttar Pradesh (Supra), which has
been followed by the Supreme Court in several subsequent
judgments. She also contended that from the evidence adduced
by the prosecution witnesses in court, there remains no doubt
that at the time of occurrence it was dark and the villagers were
making desperate attempts to seek refuge in a place and position
in which they would remain unseen by the miscreants. In such a
state of complete chaos, the claim of identification made by
some of the witnesses seems to be highly improbable. She
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
further contended that the miscreants have been identified in the
dock for the first time after a gap of 7 to 16 years of the
occurrence. The circumstances in which the identification was
made make such identification rather weak without any
corroboration. She contended that the identification must fulfill
the mandatory requirements of being without reasonable doubt.
She also reiterated the point argued by Mr. Ansul, learned
advocate regarding the questions asked from the accused
persons under Section 313 of the Cr.P.C. She contended that the
accused persons were subjected to a series of identical questions
even though the evidence against them is disparate. She
contended that no questions were put to the accused persons
regarding their identification by different persons and the places
in the village in which they were claimed to be identified.
According to her, this sort of examination goes against essence
of Section 313 of the Cr.P.C.
68. On the point of sentencing, Ms. Surya Nilambari,
learned amicus curiae has drawn the attention of the Court
towards age of the appellants Bachesh Singh, Budhan Yadav,
Satendra Das, Lalan Pasi, Gopal Saw, Dwarik Paswan, Kariman
Paswan, Gorai Paswan and Uma Paswan, as recorded by the
Trial Court and submitted that they all are now in their old age.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
She submitted that some of them are approaching 70 years.
Furthermore, the appellants Arvind Paswan, Mungeshwar
Paswan and Vinay Paswan were in their 30's at the time of
conviction. They have been identified by one witness each.
According to her, such feeble identification is a strong
mitigating factor against the death sentence.
69. On the other hand, Mr. Yogendra Prasad Sinha,
learned Additional Advocate General No.7 being assisted by Dr.
Mayanand Jha, Mr. Dilip Kumar Sinha, Mr. Abhimanyu Sharma
and Ms. Shashi Bala Verma, learned Additional Public
Prosecutors submitted that at 07:30 PM on 18 th March, 1999
hundreds of men in police uniform carrying pasuli, garasi,
hasiya, khanti, rifle and gun surrounded Senari village. The 34
victims were forced out of their houses and most of them were
lined up near the Thakurbadi on the outskirts of the village
where their throats were slit like cattle by the cadre of the MCC.
70. He submitted that the Trial Court discernibly and
objectively considered the evidence in proper perspective. He
contended that in the case at hand, it is clear that a premeditated
killing of 34 persons of a particular community was carried out
in the most barbaric manner. According to him, the witnesses
examined during trial are consistent on sequence of events. He
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
further contended that the Supreme Court has sustained
conviction even where the source of light was not disclosed in
catena of cases.
71. He submitted that in the case of Nathuni Yadav
And Ors. vs State of Bihar and Anr., since reported in AIR
1997 SC 1808, the Supreme Court sustained the conviction even
when there was absence of artificial light. He further submitted
that in the case of S. Sudershan Reddy & Ors. vs The State of
Andhra Pradesh, since reported in AIR 2006 SC 2716, it has
been held that as the accused were known to the witnesses,
identification was possible.
72. He has also relied upon the judgments of the
Supreme Court in the case of State of U.P. Vs. Babu & Ors.,
since reported in (2003) 11 SCC 280 and Kedar Singh & Ors.
Vs. State of Bihar, since reported in 1999 Cr.L.J. 601 (SC) to
submit that identification of known persons is possible from the
manner of speech, walking and gesticulating.
73. Mr. Yogendra Prasad Sinha, learned Additional
Advocate General No.7 further contended that the conviction
can be sustained even where the witnesses identified the
accused for the first time in court.
74. He contended that the identification of the
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
appellants in court is an admissible evidence. According to him,
the accused persons and the victims were known to each other
living in the same village or in the adjoining villages. They
entered into the house of the victims, flashed their torches for
identifying them and under such circumstance recognition was
fully possible by the eye-witnesses, who saw the members of
their family being dragged by the accused persons. He
contended that P.W.25, an injured witness, identified the
appellants as the miscreants, who had participated in the
commission of the offence. He argued that it is well settled by
now that the identification even in darkness is possible if the
accused were known to the witnesses. He submitted that there
was sufficient time to notice the facial features of the accused
persons and, thus, non-holding of TIP in the instant case would
be of no import. He submitted that in Sheo Shankar Singh vs
State of Jharkhand & Anr., since reported in (2011) 3 SCC 654
and Dana Yadav @ Dahu & Ors. vs State of Bihar, since
reported in (2002) 7 SCC 295, it has been held by the Supreme
Court that the identification of the accused in the court by the
witnesses constitutes substantive evidence. He submitted that it
has been further held by the Supreme Court in the above noted
cases that Cr.P.C does not oblige the investigating agency to
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
necessarily hold TIP nor is there any provision under which the
accused may claim a right to hold TIP.
75. He argued next that Section 134 of the Indian
Evidence Act provides that no particular number of witnesses
shall be required for the proof of any fact. He urged that the
requirement of law is the quality and not the quantity of the
evidence necessary for proving or disproving a fact. In the
present case, since the witnesses examined on behalf of the
prosecution were wholly reliable, the court has rightly come to
its conclusion in convicting the appellants even in case of single
identification.
76. Mr. Yogendra Prasad Sinha, learned Additional
Advocate General No.7 further contended that the appellants
were fully aware of the charges framed against them. Hence,
any omission on the part of the court in bringing to the
appellant's notice, the circumstances, which came against them
would be of no consequence. According to him, non-
examination of the first Investigating Officer, who had recorded
the oral statement of the informant and the statements of the
witnesses, was neither deliberate nor willful. As a matter of fact,
PW 27, who had taken over the charge of investigation has
categorically stated in his deposition that Jamuna Singh (the
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
first Investigating Officer) and Alok Kumar (another
Investigation Officer) had passed away. He contended that non-
examination of the deceased Investigating Officers has in no
way prejudiced the case of the defence.
77. I have given my anxious consideration to the rival
submissions and have carefully perused the evidence on record.
78. The undisputed facts of the case are as follows: -
(a) On 18th March, 1999 at 7:30 PM hundreds of armed
miscreants entered the village Senari. They
searched out persons allegedly belonging to
Ranveer Sena, took them to Thakurbadi at the
outskirts of the village and murdered 34 of them.
The incident occurred between 7:30 PM and 11:30
PM.
(b) There was no electricity in the village. Moreover, it
was a dark night as stated by Suresh Sharma
(P.W.4) in para 17 and Dinesh Sharma (P.W.6) in
para 8.
(c) Some of the miscreants were carrying big torches.
According to some of the prosecution witnesses,
they identified the miscreants in the flash of torch
light.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
(d) No TIP was conducted during investigation.
(e) The conviction of the appellants is based on dock
identification made more than 7 years and extended
to about 16 hours after the incident.
79. The purpose of TIP is to test the veracity and
trustworthiness of the evidence of the witnesses. The idea
behind the TIP is to test whether or not the witness, who claims
to have seen the culprits at the time of commission of the
offence is reliable and can identify the culprits amidst other
individuals.
80. True it is that identification of an accused in the
court of law is substantive evidence whereas the evidence of
identification in TIP though a primary evidence, it is not
substantive one and, it can be used only to corroborate the
identification of the accused in the court of law. Further, if the
TIP is not conducted and the witness identifies the accused for
the first time in court then evidence regarding identification in
the court of law does not become inadmissible. Such evidence
cannot be discarded on the ground that it was not preceded by
TIP However, court identification of an accused without TIP is
admissible, if the court finds it trustworthy.
81. In Kanta Prashad Vs. Delhi Administration, since
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
reported in AIR 1958 SC 350, the Supreme Court observed that
the purpose of TIP is to test the statement of a witness made in
the court when conducted during the time of investigation, it
assures the investigating agency that the investigation is
proceeding in the right direction.
82. In Sheikh Hasib Alias Tabarak vs The State of
Bihar, since reported in (1972) 4 SCC 773, the Supreme Court
observed that TIP during investigation is held to minimize the
chances of the memory of the identifying witnesses fading away
by reason of long lapse of time.
83. In Dana Yadav @ Dahu (Supra) relied upon by the
State, the Supreme Court carved out certain exceptions to the
ordinary rule that identification of an accused for the first time
in court is a weak type of evidence. Relying on State of
Maharashtra Vs. Sukhdeo Singh (Supra) and Ronny
alias Ronald James Alwaris and Ors. v. State of Maharashtra,
since reported in (1998) 3 SCC 625, the Supreme Court noticed
that where the witness had a chance to interact with the accused
or that in a case where the witness had an opportunity to notice
the distinctive features of the accused which lends assurance to
his testimony in court, the evidence of identification in court for
the first time by such a witness cannot be thrown away merely
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
because any TIP was not held. In this regard, the Supreme Court
held in paras 6 to 8 as under:-
"6. It is also well settled that failure to hold test
identification parade, which should be held with
reasonable despatch, does not make the evidence
of identification in court inadmissible rather the
same is very much admissible in law. Question is
what is its probative value? Ordinarily
identification of an accused for the first time in
court by a witness should not be relied upon, the
same being from its very nature, inherently of a
weak character, unless it is corroborated by his
previous Identification in the test identification
parade or any other evidence. The purpose of test
identification parade is to test the observation,
grasp, memory, capacity to recapitulate what a
witness has seen earlier, strength or
trustworthiness of the evidence of identification of
an accused and to ascertain if it can be used as
reliable corroborative evidence of the witness
identifying the accused at his trial in court. If a
witness identifies the accused in court for the first
time, the probative value of such uncorroborated
evidence becomes minimal so much so that it
becomes, as a rule of prudence and not law,
unsafe to rely on such a piece of evidence. We are
fortified in our view by catena of decisions of this
Court in the cases of Kanta Prashad v. Delhi
Administration, AIR (1958) SC 350, Vaikuntam
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Chandrappa (supra), Budhsen (supra), Kanan
and Ors. v. State of Kerala, [1979] 3 SCC 319,
Mohanlal Gangaram Gehani v. State of
Maharashtra, [1982] l SCC 700, Bollavaram
Pedda Narsi Reddy (supra), State of Maharashtra
v. Sukhdev Singh and Anr., [1992] 3 SCC 700,
Jaspal Singh alias Pali v. State of Punjab, [1997]
l SCC 510, Raju alias Rajendra v. State of
Maharashtra, [1998] l SCC 169, Ronny alias
Ronald James Alwaris, (supra), George and Ors.
v. State of Kerala and Anr., [1998] 4 SCC 605,
Rajesh Govind Jagesha, (supra), State of H.P. v.
Lekh Raj and Anr., [2000] l SCC 247 and
Ramanbhai Naranbhai Patel and Ors. v. State of
Gujarat, [2000] l SCC 358.
7. Apart from the ordinary rule laid down in the
aforesaid decisions, certain exceptions to the same
have been carved out where identification of an
accused for the first time in court without there
being any corroboration whatsoever can form the
sole basis for his conviction. In the case of
Budhsen (supra) it was observed: -
"There may, however, be exceptions to this
general rule, when for example, the court is
impressed by a particular witness, on whose
testimony it can safely rely, without such or
other corroboration."
8. In the case of State of Maharashtra (supra), it
was laid down that if a witness had any particular
reason to remember about the identity of an
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
accused, in that event, the case can be brought
under the exception and upon solitary evidence of
identification of an accused in court for the first
time, conviction can be based. In the case of Ronny
alias Ronald James Alwaris and Ors. (supra), it
has been laid down that where the witness had a
chance to interact with the accused or that in a
case where the witness had an opportunity to
notice the distinctive features of the accused which
lends assurance to his testimony in court, the
evidence of identification in court for the first time
by such a witness cannot be thrown away merely
because no test Identification parade was held. In
that case, the concerned accused had a talk with
the identifying witnesses for about 7/8 minutes. In
these circumstances, the conviction of the accused,
on the basis of sworn testimony of witnesses
identifying for the first time in court without the
same being corroborated either by previous
identification in the test identification parade or
any other evidence, was upheld by this Court. In
the case of Rajesh Govind Jagesha (supra), it was
laid down that the absence of test identification
parade may not be fatal if the accused is
sufficiently described in the complaint leaving no
doubt in the mind of the court regarding his
involvement or is arrested on the spot immediately
after the occurrence and in either eventuality, the
evidence of witnesses identifying the accused for
the first time in court can form the basis for
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
conviction without the same being corroborated by
any other evidence and, accordingly, conviction of
the accused was upheld by this Court. In the case
of State of H.P. (supra), it was observed that "..test
identification is considered a safe rule of prudence
to generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of
the accused who are strangers to them. There may,
however, be exceptions to this general rule, when,
for example, the court is impressed by a particular
witness on whose testimony it can safely rely
without such or other corroboration." In that case,
laying down the aforesaid law, acquittal of one of
the accused by High Court was converted into
conviction by this Court on the basis of
identification by a witness for the first time in court
without the same being corroborated by any other
evidence. In the case of Ramanbhai Naranbhai
Patel and Ors. (supra), it was observed "It,
therefore, cannot be held, as tried to be submitted
by learned counsel for the appellants, that in the
absence of a test identification parade, the
evidence of an eyewitness identifying the accused
would become inadmissible or totally useless;
whether the evidence deserves any credence or not
would always depend on the facts and
circumstances of each case." The Court further
observed "the fact remains that these eyewitnesses
were seriously injured and they could have easily
seen the faces of the persons assaulting them and
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
their appearance and identity would well remain
imprinted in their minds especially when they were
assaulted in broad day light." In these
circumstances, conviction of the accused was
upheld on the basis of solitary evidence of
identification by a witness for the first time in
court." (emphasis mine)
84. In Sheo Shankar Singh vs State of Jharkhand
(Supra) relied upon by the State, the Supreme Court observed
that the Cr.P.C does not oblige the investigating agency to
necessarily hold a TIP. The failure of the investigating agency to
hold a test TIP does not, in that view, have the effect of
weakening the evidence of identification in the court. It further
held that in appropriate cases the court may accept the evidence
of identification in the court even without insisting on
corroboration. In paras 46 to 48 the Supreme Court held as
under:-
"46. It is fairly well settled that identification
of the accused in the court by the witness
constitutes the substantive evidence in a case
although any such identification for the first time at
the trial may more often than not appear to be
evidence of a weak character. That being so a test
identification parade is conducted with a view to
strengthening the trustworthiness of the evidence.
Such a TIP then provides corroboration to the
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
witness in the court who claims to identify the
accused persons otherwise unknown to him. Test
identification parades, therefore, remain in the
realm of investigation.
47. The Code of Criminal Procedure does
not oblige the investigating agency to necessarily
hold a test identification parade nor is there any
provision under which the accused may claim a
right to the holding of a test identification parade.
The failure of the investigating agency to hold a
test identification parade does not, in that view,
have the effect of weakening the evidence of
identification in the court. As to what should be the
weight attached to such an identification is a
matter which the court will determine in the
peculiar facts and circumstances of each case. In
appropriate cases the court may accept the
evidence of identification in the court even without
insisting on corroboration.
48. The decisions of this Court on the subject
are legion. It is, therefore, unnecessary to refer to
all such decisions. We remain content with a
reference to the following observations made by
this Court in Malkhansingh v. State of M.P. [(2003)
5 SCC 746: 2003 SCC (Cri) 1247] : (SCC pp. 751-
52, para 7)
"7. It is trite to say that the substantive
evidence is the evidence of identification in
court. Apart from the clear provisions of
Section 9 of the Evidence Act, the position in
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
law is well settled by a catena of decisions of
this Court. The facts, which establish the
identity of the accused persons, 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 person at the trial for the first time
is from its very nature inherently of a weak
character. 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 testimony of
witnesses in court as to the identity of the
accused who are strangers to them, in the
form of earlier identification proceedings.
This rule of prudence, however, is subject to
exceptions, when, for example, the court is
impressed by a particular witness on whose
testimony it can safely rely, without such or
other corroboration. The identification
parades belong to the stage of investigation,
and there is no provision in the Code of
Criminal Procedure which obliges the
investigating agency to hold, or confers a
right upon the accused to claim a test
identification parade. They do not constitute
substantive evidence and these parades are
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
essentially governed by Section 162 of the
Code of Criminal Procedure. Failure to hold
a test identification parade would not make
inadmissible the evidence of identification in
court. The weight to be attached to such
identification should be a matter for the
courts of fact. In appropriate cases it may
accept the evidence of identification even
without insisting on corroboration. (See
Kanta Prashad v. Delhi Admn. [AIR 1958
SC 350 : 1958 Cri LJ 698] , Vaikuntam
Chandrappa v. State of A.P. [AIR 1960 SC
1340 : 1960 Cri LJ 1681] , Budhsen v. State
of U.P. [(1970) 2 SCC 128 : 1970 SCC (Cri)
343] and Rameshwar Singh v. State of J&K
[(1971) 2 SCC 715 : 1971 SCC (Cri)
638] .)"
85. In Mulla & Another vs State Of U.P (Supra) on
which reliance has been placed by the learned amicus curiae,
the Supreme Court observed that failure to hold TIP does not
make the evidence of identification in court inadmissible, rather
the same is very much admissible in law. However, where
identification of an accused by a witness is made for the first
time in Court, it should not form the basis of conviction. The
relevant para 21 of the said judgment reads as under:-
"21. Failure to hold test identification parade does
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
not make the evidence of identification in court
inadmissible, rather the same is very much
admissible in law. Where identification of an
accused by a witness is made for the first time in
Court, it should not form the basis of conviction.
As was observed by this Court in Matru v. State of
U.P., (1971) 2 SCC 75 : (AIR 1971 SC 1050),
identification tests do not constitute substantive
evidence. They are primarily meant for the purpose
of helping the investigating agency with an
assurance that their progress with the investigation
into the offence is proceeding on the right lines.
The identification can only be used as
corroborative of the statement in Court. (Vide
Santokh Singh v. Izhar Hussain, (1973) 2 SCC 406)
: (AIR 1973 SC 2190)." (emphasis mine)
86. In Sukhbir Singh v. State of Punjab (Supra) on
which also reliance has been placed by the learned amicus
curiae, the Supreme Court observed that there is no inflexible
rule that an identification made for the first time in court has to
be always ruled out of consideration, but the broad principle is
that if there is no other evidence against an accused, an
identification in court made long after the event is not
acceptable. Paras 13 and 14 of the said judgment read as under:-
"13. We have considered the arguments advanced
by the learned counsel for the parties. It will be
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
seen that the incident happened at about 9 p.m. on
26-12-1991. In the FIR recorded about 8 hours
later, the appellants had been described as two
Sikh youths 25/30 years of age wearing kurta-
pajamas. The appellants were arrested on 21-5-
1992 by Sub-Inspector Pyara Singh (who was not
examined as a witness) and they were identified for
the first time in court by Naranjan Singh on 21-9-
1993. We are of the opinion that the physical
description of the appellants given in the FIR
would fit millions of youth in Punjab, and could not
by itself pin the murder on them. The prosecution
has also not come out with the steps in the
investigation which had led to their identification
as the primary assailants. It was, in this
background, obligatory on the part of the
prosecution to have produced Sub-Inspector Pyara
Singh who could have testified to the steps in the
investigation made by him which had enabled him
to identify the appellants as the killers. This was
not done. In this view of the matter, the judgments
cited by Mr Patwalia fully apply to the facts of the
case.
14. There is absolutely no evidence other than the
identification in court made by Naranjan Singh
long after the incident. It is true that there is no
inflexible rule that an identification made for the
first time in court has to be always ruled out of
consideration; but the broad principle is that (sic
if) in the background there is no other evidence
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
against an accused, an identification in court
made long after the event is clearly not
acceptable. The judgment cited by Mr Kuldip Singh
of Malkhansingh case [(2003) 5 SCC 746: 2003
SCC (Cri) 1247] is on the facts of that particular
case, as a prosecutrix, who was the victim of a
gang rape, had identified some of the accused for
the first time in court on which this Court opined
that the identification was acceptable as a good
piece of evidence." (emphasis mine)
87. In State of Maharashtra Vs. Sukhdeo
Singh (Supra), at para 25, it has been held by the Supreme
Court that the "(i) identification for the first time after a lapse
of considerable time in Court or (ii) identification at a test
identification parade in the case of total strangers, it is not safe
to place implicit reliance on the evidence of witnesses who had
just a fleeting glimpse of the person identified or who had no
particular reason to remember the person concerned, if the
identification is made for the first time in Court."
88. In Vaikuntam Chandrappa and Ors. Vs State of
Andhra Pradesh, (Supra), the Supreme Court inter alia
observed as follows:-
"It is true that when he came to give
evidence in court, the witness did point out to the
same three accused as having been seen by him at:
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
the time of the murder. It is also true that the
substantive evidence is the statement in court; but
the purpose of test identification is to test that
evidence and the safe rule is that the sworn
testimony of witnesses in court as to the identity of
the accused who are strangers to the witnesses,
generally speaking, requires corroboration which
should be in the form of an earlier identification
proceeding."
89. In George & Ors vs State of Kerala & Anr., since
reported in AIR 1979 SC 1127, the Supreme Court held that "...
though not fatal, absence of the corroborative evidence of prior
identification in a T.I. parade makes the substantive evidence of
identification in Court after a long lapse of time a weak piece of
evidence and no reliance can be placed upon it unless
sufficiently and satisfactorily corroborated by other evidence."
90. In Rabindra Kr. Pal @ Dara Singh vs Republic of
India, since reported in (2011) 2 SCC 490, the Supreme Court
held that "it is clear that identification of accused persons by
witness in dock for the first time though permissible but cannot
be given credence without further corroborative evidence.
Though some of the witnesses identified some of the accused in
the dock as mentioned above without corroborative evidence the
dock identification alone cannot be treated as substantial
evidence, though it is permissible."
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
91. On a perusal of the ratio laid down by the
Supreme Court in the above noted cases, it would be evident
that ordinarily an accused should not be convicted on the
testimony of witnesses identifying for the first time in court
without any corroboration either by previous identification
in the TIP or any other evidence. If there is no other
evidence against the accused identification in court made
long after the incident should not form the basis of
conviction as it is regarded as evidence of weak character.
However, in appropriate cases, in exception to the general
rule, if a witness has any particular reason to remember
about the identity of an accused or the accused is known to a
witness from before, the court may rely on such
identification without other corroboration.
92. So far as conviction of an accused on the testimony
of a single witness is concerned, the issue had come up for
consideration before the Supreme Court in Vadivelu Thevar vs
The State of Madras, since reported in AIR 1957 SC 614. In
that case conviction of the appellant rested on the testimony of
the sole witness. The Supreme Court found that if the evidence,
read as a whole, rings quite true, there should be no hesitation in
acting upon it. Having considered the relevant authority and the
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
provisions of the Evidence Act, the Supreme Court outlined the
following propositions:-
"(1) As a general rule, a court can and may act on
the testimony of a single witness though
uncorroborated. One credible witness outweighs the
testimony of a number of other witnesses of indifferent
character.
(2) Unless corroboration is insisted upon by
statute, courts should not insist on corroboration
except in cases where the nature of the testimony of
the single witness itself requires as a rule of prudence,
that corroboration should be insisted upon, for
example in the case of a child witness, or of a witness
whose evidence is that of an accomplice or of an
analogous character.
(3) Whether corroboration of the testimony of a
single witness is or is not necessary, must depend
upon facts and circumstances of each case and no
general rule can be laid down in a matter like this and
much depends upon the judicial discretion of the
Judge before whom the case comes."
93. In view of Section 134 of the Indian Evidence Act,
it has rightly been urged on behalf of the state that no particular
number of witnesses shall be required for the proof of any fact
in a case. The general principle of law is that generally
conviction may be based on the testimony of single witness
without any corroboration, if the evidence of the solitary witness
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
is fully reliable, trustworthy and inspires confidence.
94. However, with reference to carnage cases, in view
of the peculiarity of the circumstances, as they generally involve
large number of victims, witnesses and the accused persons, in
Masalti Vs. State of U.P. (Supra), a four judge Bench of the
Supreme Court held that "where a criminal court has to deal
with evidence pertaining to the commission of an offence
involving a large number of offenders and a large number of
victims, it is usual to adopt the test that the conviction could be
sustained only if it is supported by two or three or more
witnesses who give a consistent account of the incident. In a
sense, the test may be described as mechanical; but it is
difficult to see how it can be treated as irrational or
unreasonable. Therefore, we do not think any grievance can be
made by the appellants against the adoption of this test. If at all
the prosecution may be entitled to say that the seven accused
persons were acquitted because their cases did not satisfy the
mechanical test of four witnesses, and if the said test had not
been applied, they might as well have been convicted. It is, no
doubt, the quality of the evidence that matters and not the
number of witnesses who give such evidence. But sometimes it
is useful to adopt a test like the one which the High Court has
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
adopted in dealing with the present case." (emphasis mine)
95. The proposition of law laid down in Masalti v
State of U.P. (supra) was followed in the case of Binay Kumar
Singh v. State of Bihar, since reported in AIR 1997 SC 322,
wherein the Supreme Court held as follows: -
"There is no rule of evidence that no conviction
can be based unless a certain minimum number of
witnesses have identified a particular accused as a
member of the unlawful assembly. It is axiomatic
that evidence is not to be counted but only weighed
and it is not the quantity of evidence but the quality
that matters. Even the testimony of one single
witness, if wholly reliable, is sufficient to establish
the identification of an accused as a member of an
unlawful assembly. All the same, when the size of
the unlawful assembly is quite large (as in this
case) and many persons would have witnessed the
incident, it would be a prudent exercise to insist on
at least two reliable witnesses to vouchsafe the
identification of an accused as a participant in the
rioting."
96. In Kamaksha Rai v. State of U.P., since reported in
(1999) 8 SCC 701, which was related to an incident where large
number of people exceeding 500 in number are said to have
taken part, the Supreme Court held that "Taking into
consideration the nature of attack and the possibility or
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
otherwise of the identification of these accused persons by the
prosecution witnesses and bearing in mind the principles laid
down by this Court in the above-cited judgments, we are of the
opinion that it is not safe to rely on the evidence of witnesses
who speak generally and in an omnibus way without specific
reference to the identity of the individuals and their specific
overt acts in regard to the incident..." (emphasis mine)
97. In Kamaksha Rai (Supra), the Supreme Court
further observed that "as a rule of prudence it is necessary to
fix a minimum number of witnesses needed to accept the
prosecution case to base a conviction...."
98. The aforesaid proposition laid down in Masalti
case (Supra) has consistently been followed in a number of
cases of similar nature such as State of A.P. v. Thakkidiram
Reddy, since reported in (1998) 6 SCC 554 and Hukam Singh
v. State of Rajasthan, since reported in (2000) 7 SCC 490.
99. In Chandra Shekhar Bind Vs. State of Bihar,
since reported in AIR 2001 SC 4024, the Supreme Court
observed that "The Constitution Bench of this Court has, in the
case of Masalti v. State of U.P. [AIR 1965 SC 202 : (1965) 1 Cri
LJ 226] held that under the Evidence Act, trustworthy evidence
given by a single witness would be enough to convict the
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
accused persons, whereas evidence given by half-a-dozen
witnesses which is not trustworthy would not be enough to
sustain the conviction. It was held that where a criminal court
has to deal with evidence pertaining to the commission of an
offence involving a large number of offenders, it is usual to
adopt the test that the conviction could be sustained only if it is
supported by two or three or more witnesses who give a
consistent account of the incident."
100. In Chandra Shekhar Bind (Supra) relying upon
Masalti case (Supra), the Supreme Court acquitted three of the
appellants observing as under :-
"On the basis of this two-witness theory, benefit of
doubt would have to be and is given to Accused 9,
10 and 12 inasmuch as more than one witness has
not identified them."
101. In Duleshwar v. State of M.P. (now Chhattisgarh),
since reported in (2020) 11 SCC 440, the Supreme Court
observed : "Thus, it is the quality of evidence that matters and
not the quantity; and even the testimony of a single witness may
be sufficient to establish the identity of an accused as member of
an unlawful assembly but, when the size of assembly is quite
large and many persons have witnessed the incident; and
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
when a witness deposes in general terms, it would be useful to
adopt the test of consistency of more than one witness so as to
remove any doubt about identity of an accused as a member of
the assembly in question. However, even if adopting such a test
of consistency, what is to be looked for is the "consistent
account of the incident" and the requirement of consistency
cannot be overstretched as if to search for repetition of each
and every name of the accused in each and every testimony. In
other words, the comprehension of overall evidence on record is
requisite; and mere counting of heads or mere recitation of
names or omission of any name in the testimony of any
particular witness cannot be decisive of the matter. In such facts
and circumstances, even the relevance of the corroborating
facts and factors like that of recovery of weapons or any other
article co-related with the crime in question cannot be ignored
altogether." (emphasis mine)
102. In Krishna Mochi Vs. State of Bihar, since
reported in (2002) 6 SCC 81, relied upon by Mr. Yogendra
Prasad Sinha, learned Additional Advocate General No.7
appearing for the State, the Supreme Court observed that "This
Court has observed such a rule of caution ordinarily, which
would obviously mean that there is no blanket ban or rule of
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
universal application that if the number of eyewitnesses is less
than two, in no case conviction can be upheld... ... no rule of
universal application was intended to be laid down or has been
laid down."
103. The Supreme Court further observed in Krishna
Mochi (Supra) that "even if the complicity of the accused is
proved by credible evidence of one or two witnesses, it would
not be unsafe to convict an accused, rather a duty is enjoined
upon the court not to acquit an accused on this ground alone
unless the prosecution case is otherwise found to be
untrustworthy. It is well settled that in a criminal trial credible
evidence of even a solitary witness can form the basis of
conviction and that of even half a dozen witnesses may not form
such a basis unless their evidence is found to be trustworthy
inasmuch as what matters in the matter of appreciation of
evidence of witnesses is not the number of witnesses, but the
quality of their evidence."
104. In Ranjit Singh v. State of M.P., since reported in
(2011) 4 SCC 336, the Supreme Court held as under:-
"Thus, from the above, the law on the issue
remains that in a case involving an unlawful
assembly with a very large number of persons,
there is no rule of law that states that there cannot
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
be any conviction on the testimony of a sole
eyewitness, unless that the court is of the view that
the testimony of such sole eyewitness is not
reliable. Though generally it is a rule of prudence
followed by the courts that a conviction may not
be sustained if it is not supported by two or more
witnesses who give a consistent account of the
incident, in a fit case the court may believe a
reliable sole eyewitness if in his testimony he
makes specific reference to the identity of the
individual and his specific overt acts in the
incident. The rule of requirement of more than
one witness applies only in a case where a witness
deposes in a general and vague manner, or in the
case of a riot." (emphasis mine)
105. From reading of the abovementioned judgments of
the Supreme Court, it can safely be said that the court may rely
upon the testimony of the single witness, if it is wholly reliable,
trustworthy and inspires confidence, as there is no rule of law
for universal application that conviction cannot be sustained on
the evidence of solitary witness. However, even though the
quality of evidence is paramount, when the size of the assembly
is quite large and many persons have witnessed the incident, it
would be useful to adopt the test of consistency of more than
one witness so as to remove any doubt about the identity of the
accused persons as a member of the assembly in question.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
106. Further, from the ratio laid down by the Supreme
Court in the aforementioned cases, it would also be evident that
the corroboration, unless required by the statute, is a rule of
prudence and not rule of law.
107. Keeping the aforesaid legal principles in mind,
when we look to the facts of the present case, we find that in the
case at hand several hundred miscreants had participated and 34
persons were killed. A large number of accused persons were
charge-sheeted and out of them 38 persons faced the present
trial.
108. In a criminal trial, there are two fundamental
issues. The first is whether the alleged offence was committed
and, if it is established that the offence was committed, the
second question would arise as to who committed the offence?
The appellants herein have not challenged the homicidal death
of 34 persons and injuries sustained by five persons. They have
challenged the allegation that they are perpetrators of this
heinous offence. They have stated that the witnesses were not in
a position, due to dark night, commotion and absence of proper
source of identification to actually see the perpetrators or to
witness the killings taking place.
109. It would appear from the evidence on record that
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
the informant Chintamani Devi passed away during the trial.
She could not be examined as a prosecution witness. It would
also be evident from the perusal of the FIR that the alleged
occurrence concluded at 11:00 PM on 18th March, 1999 and the
FIR was lodged at 2:30 AM on 19th March, 1999. As per the
informant, she first went to Thakurbadi following her husband
and son and saw the killing and thereafter she returned. She
again went to the Thakurbadi after the miscreants had left the
place, where she met large number of villagers, who told her
about the occurrence in detail. Her fardbeyan was recorded after
she had met a number of villagers. It has rightly been submitted
on behalf of the appellants that the FIR not only contains
version of the informant but also the persons, who reached the
Thakurbadi, in the immediate aftermath of the occurrence. It
contains name of 16 persons. The appellants are not amongst
them. Presumably, the appellants were not known either to the
informant or to the other villagers, who had gathered at the
Thakurbadi in the immediate aftermath of the occurrence.
110. At this stage, it would be pertinent to note that two
of the appellants, namely, Budhan Yadav and Gopal Sao are the
residents of the village Senari. They must have been known to
the informant and other witnesses whose version went to
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
lodging of the FIR, still, these two co-villagers apart from others
have not been named in the FIR.
111. Having said so, now I would like to deal with the
individual case of each of the convicts (appellants).
Budhan Yadav (Cr.Appeal (DB) No. 30 of 2017)
112. So far as appellant Budhan Yadav is concerned, he
has been identified by four witnesses. They are Ram Ratan
Sharma (P.W.1), Vishwa Vijay Sharma (P.W.2), Arvind Kumar
(P.W.8) and Ran Vijay Sharma (P.W.15).
113. Ram Ratan Sharma (P.W.1) has stated in his
deposition that at the time of occurrence he was sitting at the
door of Pashupati Sharma. He saw 12-14 miscreants being
armed with rifle and gun. He claims to have seen five persons
including the appellant Budhan Yadav and claimed that they
killed Amresh, Ramdayal Sharma and Tulsi Sharma. He further
states that when he came back, he saw the throat of his son
Srimohan was slit. He states in his deposition that he saw the
accused persons from a distance of 100 yards. He did not run
away. He also states that the miscreants were having big torches
and he identified them in the light. However, the most
significant weakness in his evidence is his own admission made
before the court that he had not taken Budhan Yadav's name as
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
an aggressor in his statement before police. When he admits this
material omission, no reliance can be placed on his evidence
against Budhan Yadav whom he identified in the dock after
eight years of the occurrence. Further, in para 11, he states that
Naxals kept him at the door of Judge sahib for half an hour. He
states that Thakurbadi was not visible from the place he was
sitting. He further states that he came back to his house after
half an hour and he did not go to the Thakurbadi. He states that
he was sitting at the door of Pashupati Sharma, who has not
been examined. As per his deposition, Pashupati Sharma's son
Mukesh was also there. It is of salience to note that this Mukesh
has been referred to in the FIR as the person who was mourning
the death of his brother and uncle and who also told the
informant that his double barrel gun was taken away by the
Naxals. It is trite law that the FIR can be used only to contradict
or corroborate the maker of it. However, if the version of a
particular person has gone into the making of the FIR then the
omissions of such facts, affecting the probabilities of the case,
are relevant on which the veracity of the prosecution case can be
tested. In the instant case, the version of Mukesh son of
Pashupati Sharma has gone into making of the FIR. He
apparently did not supply the name of the appellant to the
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
informant. This omission is noteworthy as the appellant belongs
to village Senari and there cannot be any question mark of his
identification. The fardbeyan has been exhibited as Exhibit-
4.The defence has rightly relied upon it to say that had the
appellant Budhan been present at the house of Pashupati
Sharma, the knowledge must have travelled from Mukesh to the
informant. This fact coupled with the omission by P.W.1 to state
the name of the appellant Budhan Yadav before the police in his
statement made under Section 161 of the Cr.P.C would clearly
go to show that the appellant was nowhere in the scheme of
allegations made initially, but later on he has been transposed as
an accused.
114. Another important aspect to be kept in mind in the
deposition of P.W.1 is that the appellant Budhan along with four
others slit the throat of Amresh, Ramdayal Sharma and Tulsi
Sharma. He states that he was at the door of Pashupati Sharma
and returned to his house after half an hour. He also clearly
states that he did not go to Thakurbadi. A look on the inquest
report of Amresh (Exhibit-7/29) and Ram Dayal Sharma
(Exhibit- 7/30) would show that their dead bodies were found
on the north of village Senari near temple, but the inquest report
of Tulsi Sharma (Exhibit-7/28) would show that his dead body
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
was found south of village Senari on road. Thus, these three
persons were surely not killed at one place, but at least at two
different places. They were also not killed at the door of
Pashupati Sharma whose son Srimohan as per the statement of
P.W.1 was killed at Thakurbadi where he admittedly did not go.
Thus, the place of occurrence as evidenced by inquest reports
and statement of P.W.1 are at three different places and P.W.1
could not have been omnipresent at all these three places to
have witnessed the occurrence. Hence, the version of P.W.1
regarding witnessing the killing of four persons and that too by
Budhan Yadav whom he had not named before the police is
highly doubtful and cannot be relied upon.
115. The next witness, who has taken the name of the
appellant Budhan Yadav is Vishwa Vijay Sharma (P.W.2). He
claims to identify him and some other convicts. He states in his
deposition that at the time of occurrence he was at his house.
When he heard the alarm that MCC members had arrived, he
escaped to one Kailash Babu's terrace. He saw 25-30 persons
from the terrace, who were clad in local outfits and police
uniform armed with weapons. He states that the miscreants were
carrying huge lights. In those lights, he claims to identify the
appellant Budhan Yadav and some other convicts. He further
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
claims that his son Pintu was caught by the miscreants. When he
went to Thakurbadi after departure of miscreants, he saw dead
bodies and recognized only Bachesh Yadav amongst the seven
accused persons present in the court. However, from the records
of the Trial Court, it is not clear which of the accused persons
were in attendance on the day his evidence was taken. He states
in his cross-examination that when the accused persons came to
the village, in the ensuing commotion, everyone made a frantic
effort to hide. He went to Kailash Babu's terrace. From the
terrace, which had no boundary, he claims to have seen the
miscreants whilst seated two feet away from the edge. He also
states that there was a distance of about 80-85 feet between him
and the aggressors. He states that he remained at the terrace for
3 ½ hours.
116. As already stated, P.W.2 had not pointed out the
source of identification in his statement made under Section 161
of the Cr.P.C and had mentioned it in the court for the first time.
What becomes important in view of the fact that Budhan Yadav,
being a co-villager, his presence at Senari was not unusual.
However, P.W.2 does not explain how Budhan shared the
common object of the unlawful assembly of which he was
alleged to be a part. It is well settled that an essential
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
requirement of Section 149 of the Indian Penal Code is sharing
of the common object of the unlawful assembly. The presence of
Budhan Yadav in his own village is perfectly normal, so his
identification at the place of occurrence alone would not be
sufficient without establishing a nexus between his presence and
the common object of the unlawful assembly. The prosecution
ought to have been more meticulous in demonstrating how
Budhan Yadav had participated in sharing the common object of
the unlawful assembly. P.W.2 generally states that the accused
persons caught hold of Pintu Kumar and slaughtered, but no
specific testimony has been rendered to show that Budhan
Yadav shared the common object of the unlawful assembly. It
must be borne in mind that Budhan Yadav and others have been
convicted under Section 302/149 IPC. So the prosecution, at
least in his case, cannot merely rely on vague and general
identification without establishing his clear membership of the
unlawful assembly along with his participation in the carrying
out of common object of the unlawful assembly through cogent
and credible evidence. Furthermore, from the evidence of P.W.2,
it seems that he was not in a position to see the occurrence or
the accused persons. He states that there was distance of 80-85
ft. between him and the accused persons. He disowns his own
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
statement in para 21 that he stated before the police that he
heard four fires and two blasts and the accused persons were
carrying big torches. Under the circumstance, in absence of the
source of identification, the claim of his identification of
Budhan Yadav from a distance of 80-85 ft. seems to be highly
improbable.
117. The next witness, who identified the appellant
Budhan Yadav is Arvind Kumar (P.W.8). He was examined in
the court on 16th June, 2009. He has stated in his deposition that
he was at Arjun Singh's doorstep at the time of occurrence.
About 30-35 extremists came looking for Ranveer Sena
members. At this time one Rajeshwar Singh (not examined) got
involved in a scuffle with extremists. He claimed to recognize
Budhan Yadav and other convicts. However, he identified only
Ganauri Manjhi and no other accused person. What is
noteworthy in his deposition is that from the order sheet dated
16th June, 2009 it would appear that the appellant Budhan Yadav
was in attendance in court in person. Despite his presence in
court, P.W.8 did not identify him. Dock identification, which is
generally regarded as substantive evidence, is conspicuous by
its absence. This fact alone vitiates the testimony of P.W. 8.
118. The next witness, who has stated the name of the
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
appellant Budhan Yadav is Ran Vijay Sharma (P.W.15). At the
outset, it is to be noted that P.W. 15 in his examination-in-chief
admits that of all the persons, whose names he had revealed to
the police under Section 161 of the Cr.P.C, none was present in
the court. In court, he recognized Budhan Yadav, but it is
obvious from his statement made in examination-in-chief that
Budhan Yadav was not one of those whose names he had taken
before the Police during investigation. This omission to take
Budhan Yadav's name under section 161 of the Cr.P.C becomes
even more fatal to the testimony of P.W. 15 as Budhan Yadav
was a co-villager and he knew him well enough to identify him
before the Police. Apart from the omission noted above, another
important aspect in his evidence is his position at the time of
occurrence. He does not claim to identify anyone from the
verandah of Surendra Singh where he saw the miscreants
arriving in uniform, rather he fled from the verandah on seeing
the miscreants coming and thereafter claimed to identify the
aggressors from the house in which he had hidden. He claimed
that he concealed himself at a place where the house is located
and where no one had access. Admittedly, from hiding he
witnessed the occurrence whereas he stated that nobody could
reach where he had hidden himself and nobody could have gone
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
there. On arrival of the police, he came out of the house. He
admittedly was hidden in a very difficult position and without
source of identification. Under such circumstance, his claim of
identification seems to be highly improbable.
Bachesh Kumar Singh (Cr.Appeal (DB) No. 32 of 2017)
119. Appellant Bachesh Kumar Singh has been
identified by Vishwa Vijay Sharma (P.W.2), Sanjay Kumar
(P.W.5), Bali Ram Sharma (P.W.6-a) and Sri Niwas Sharma
(P.W.26).
120. So far as the evidence of P.W.2 is concerned, he has
identified the appellant on 21st January, 2008 about 8 years after
the incident. I have already discussed the evidence adduced by
him hereinabove while dealing with the case of the appellant
Budhan Yadav. He has identified Bachesh Kumar Singh
amongst seven persons present in the court. As per his own
admission, as soon as the accused persons entered the village,
without witnessing anything, he went to his room and hid
himself at the terrace of Kailash Babu. He claims to have seen
the miscreants from a distance of 80-85 ft. between him and the
aggressors whilst seated two feet away from the edge. He denies
stating before the police that the aggressors were carrying torch
light. From the sequence of events narrated by him, it would be
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
evident that he was in a difficult situation and his pre-dominant
motive at the relevant time was to conceal himself so that
nobody could view him. Under such circumstance, when the
appellant Bachesh Kumar Singh was a totally stranger to the
P.W.2, it would not be safe to place implicit reliance on the
identification made by him for the first time in court after 8
years.
121. Bali Ram Sharma (P.W.6-a) has identified the
appellant in dock on 3rd September, 2008, i.e., after almost nine
years. He claims in para 2 of his examination-in-chief that about
20-25 miscreants entered his house, caught hold of his uncle's
son and took him away. He identified Bachesh Kumar Singh as
one of the miscreants, who had come to his house. In Para 4, he
states that the miscreants were carrying torches and that he
climbed a tree in order to save himself. In cross-examination, he
admits at Paras 5 and 7 that he had not claimed to have
identified any of the miscreants in his statement made under
Section 161 of the Cr.P.C. He further clarified that he had told
the Police that 20-30 persons had entered his house, but he
could not say who had entered as he did not know any one's
name.
122. Bali Ram Sharma's identification of Bachesh
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Kumar Singh becomes unreliable in view of the blatant
contradiction between his statements in court and before the
Police. He has accepted in his cross examination that in his
statement under Section 161 Cr.P.C, he had not claimed to
identify any of the miscreants. This discrepancy in his
statement under section 161 Cr.P.C and before the court makes
his testimony doubtful.
123. Sri Niwas Sharma (P.W.26) claimed to identify the
appellant Bachesh Kumar Singh. He states in his examination-
in-chief in Paras 1 and 3 that he was at his house when around
7:30 P.M. he heard an announcement being made that members
of Ranveer Sena were being sought. In Para 4, he states that he
took refuge in the field near his house amidst the chaff. He
further claims in para 4 that he identified Bachesh and others
when they were taking one Sanjeev towards Thakurbadi through
the field in which he was hiding at around 10:00 P.M. In his
cross-examination, he admits in para 16 that he had concealed
himself so completely that he could not be seen by anyone and
remained so hidden for 3 hours. In para 18, he states that when
all the miscreants left, he came out of hiding. In para 24, he
admits that the accused Bachesh was known to him from before.
No overt act has been attributed by him to the appellant.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
124. It is surprising that if the appellant Bachesh Kumar
Singh was known to P.W.26 from before, as to why his name
was not disclosed to the informant or the police officer at the
time of recording of fardbeyan as the incident occurred between
7:30 P.M. to 11:30 P.M. and the police recorded the fardbeyan at
2:30 A.M. Hence, there was sufficient time to divulge his name
to the informant. Further, even if it is believed that the appellant
Bachesh Kumar Singh was familiar to P.W.26, it is not his case
that he identified him through his voice or gait or clothes etc.
Any source of identification is also missing from his testimony,
which could have added weight to his identification at 10 P.M.
when the night was pitch dark. It is further compounded by the
position through which he testified at the time of identification
i.e. amidst loads of chaff, well hidden from public view. Both
the absence of source of identification at a time of darkness
coupled with his position in the hay and chaff, make his claim of
identification doubtful.
125. It is pertinent to note here that in para 10 at page 14
and in para 37 at page 48 of the impugned judgment, the Trial
Court has recorded that Sanjay Kumar (P.W.5) stated that he
identified the appellant Bachesh Kumar Singh in the light of
torch along with others amongst the miscreants. On a careful
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
perusal of the evidence of P.W.5, I find that he claimed to
identify Bigan Kahar, Sukhu Yadav, Bichesh Yadav, Prahlad,
Ramesh, Dukhan Manjhi and Dukhan Kahar amongst the
miscreants at the time of occurrence. He did not name the
appellant amongst the miscreants he claimed to identify.
Inclusion of his name amongst the miscreants in the aforesaid
paragraphs by the Trial Court is contrary to the evidence on
record.
Kariman Paswan (Cr.Appeal (DB) No. 1271 of 2016
126. So far as the appellant Kariman Paswan is
concerned, he has been identified by Ran Vijay Sharma
(P.W.15), Chinta Devi (P.W.16), Manorma Kuwar (P.W.18) and
Arvind Kumar (P.W.8).
127. I have already discussed the testimony of P.W.15
hereinabove while dealing with the case of Budhan Yadav.
P.W.15 has identified Kariman Paswan in the court. He stated in
para 1 that on noticing the arrival of miscreants from the
verandah of Surendra Singh, he fled and hid himself. It is from
his hiding place that he claimed to see Kariman and others
taking Awadhesh (deceased). In his cross examination, he
clarified the place where he had concealed himself i.e. in a
house where no one else could come. He came out of this house
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
after the arrival of the Police. No details have been given by the
prosecution as to where the house was located, its distance from
Awadhes's house and whether the house could be seen from
where he was hiding. It is reiterated that P.W.15 has clearly
stated in his deposition that the persons whom he named before
the police were not present and after so saying he identified
Uma Paswan, Budhan Yadav and Kariman Paswan in court.
Thus, apparently, in his substantive evidence before the court,
he has clearly stated that Kariman Paswan was not amongst the
persons whom he had named before the police. It is also
relevant to note here that the appellant Kariman Paswan is not
the resident of village Senari. The sequence of events narrated
by P.W.15 has been discussed in detail while dealing with the
case of the appellant Budhan Yadav. He was admittedly hidden
in a very difficult position and that too without source of
identification. Under such circumstance, no implicit reliance can
be placed on the identification made by him for the first time in
court after 11 years of the occurrence.
128. Chinta Devi (P.W.16) identified Kariman Paswan in
court. She states in her deposition that she had seen Kariman in
village Senari with one Radhey Shyam before the incident. She
does not identify Kariman Paswan as being part of the
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
occurrence. She does not specify the time elapsed between his
presence in the village and the incident. She does not whisper a
word in her evidence against Kariman relating to any sort of
overt act. There is nothing on record to suggest that visit of
Kariman had any nexus with the actual carnage. Thus, the
evidence of P.W.16 is of no help to the prosecution.
129. So far as Manorma Kuwar (P.W.18) is concerned,
she states that she was at her house at the time of occurrence.
Her son was caught and taken to Thakurbadi. She identified
Bodha Bhuiyan, Kariman Paswan, Raj Nath Kahar @ Naresh,
Radhey Shyam, Prahlad Goverdhan, Ramesh and Amrendra on
seeing them in court. In her cross-examination, she states that
the police had arrived at 11:00 P.M. in the night and enquired
about the incident. She further states that she did not name of
the persons whom she identified in the court before the police.
She also states that those whose name she had mentioned before
the police are not present in court. Thus, from the evidence of
P.W.18 it transpires that she had not named Kariman before the
police. She identified him along with others on seeing him in the
court. However, she has not uttered anything specific against
him. She has also not mentioned any source of identification in
her deposition. Such identification made by P.W.18 in the court
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
after 11 years of the occurrence cannot be relied upon for
upholding the conviction.
130. The next witness, who identified Kariman Paswan,
is Arvind Kumar (P.W.8). In his deposition, he claimed that he
recognized Kariman and others in the group of miscreants.
However, he was unable to identify Kariman in the dock despite
the fact that he was in attendance and present in court on 16 th
June, 2009, the date on which P.W.8 testified, as would be
evident from the order sheet dated 16 th June, 2009. Hence, no
reliance can be placed on the evidence of P.W.8.
Gopal Sao (Cr.Appeal (DB) No. 30 of 2017)
131. The appellant Goal Sao has been identified by Ram
Ratan Sharma (P.W.1), Vishwa Vijay Sharma (P.W.2) and Ran
Vijay Sharma (P.W.15).
132. So far as Ram Ratan Sharma (P.W.1) is concerned,
while dealing with the case of the appellant Budhan Yadav, I
have already discussed his testimony in detail and have found
the version of P.W.1 regarding witnessing the killing of four
persons and that too by the persons whom he had not named
before the police highly doubtful. However, it would be apposite
to analyze his testimony with regard to its reliability against the
appellant Gopal Sao and others killing Amresh, Ramdayal and
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Tulsi. It is the prosecution case that all the killings took place at
Thakurbadi. In para 11 of his testimony, he accepted that
Thakurbadi was not visible from the place where he was seated
and further in para 13, he states that he did not go to
Thakurbadi. It is his specific case that while he was at Padam
Narayan Singh's house he saw Gopal Sao and some others
killing the persons named above. The killings he accepts took
place near Thakurbadi. Thus, his basis of identification of the
Gopal Sao collapses when admittedly he was not so placed that
Thakurbadi could be visually accessible to him. Moreover,
inquest report of Tulsi Sharma would show that his body was
found at south of village Senari on road and inquest reports of
Amresh Kumar and Ramdayal Sharma would show that their
bodies were found at north of village Senari near temple. Thus,
these three persons were surely not killed at one place, but at
least at two different places. They were also not killed at the
door of Pashupati Sharma. His son Srimohan was killed at
Thakurbadi where admittedly he did not go. Thus, the place of
occurrence as would appear from the inquest reports are at three
different places and P.W.1 would not have been omnipresent at
all these three places. The aforesaid facts make it clear that
P.W.1 was not in a position to identify the miscreants whom he
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
claims to recognize in the act of killing.
133. So far as Vishwa Vijay Sharma (P.W.2) is
concerned, he identified the appellant Gopal Sao along with
Budhan Yadav in court almost nine years after the occurrence.
The appellant Gopal Sao is his co-villager. I have already
discussed the reliability and credibility of his evidence while
dealing with the case of the appellant Budhan Yadav. While
dealing with the sequence of events, I have already held that
P.W.2 was not in a position to witness the occurrence and, thus,
no reliance can be placed on the identification made by him so
far as Gopal Sao is concerned, who is also a resident of Senari
village. He could have been easily identified, but initially he has
not been named. Moreover, his presence outside his house in the
village at the time of occurrence cannot be treated as doubtful
and the same may not make him a member of unlawful
assembly sharing common object.
134. So far as Ran Vijay Sharma (P.W.15) is concerned,
he has stated the name of Gopal Sao as one of the miscreants
who took Awadhes. However, he recognized only Uma Paswan,
Budhan Yadav and Kariman Paswan and no other accused
person in dock. So, there was no dock identification of Gopal
Sao by P.W.15. Apart from the above, while dealing with the
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
case of appellant Budhan Yadav, I have already discussed the
testimony of P.W.15 and held that his claim of identification
seems to be highly improbable. Considering his failure to
identify Gopal Sao in court as also other attending
circumstances discussed hereinabove, I am constrained not to
place implicit reliance on his testimony.
Uma Paswan (Cr.Appeal (DB) No. 1271 of 2016)
135. So far as the appellant Uma Paswan is concerned,
he has been named by Suresh Sharma (P.W.4) in his deposition
and identified by Bali Ram Sharma (P.W.6-a) and Ran Vijay
Sharma (P.W.15).
136. The testimony of Suresh Sharma (P.W.4) needs to
be analyzed with that of Arjun Singh (P.W.3) as P.W.4 has
referred his presence at the time his hands were tied by the
miscreants. As per P.W.4, he identified Uma Paswan when he
and others tied his hands. Thereafter, he managed to escape and
did not claim to identify anyone. Thus, the only time when he
was in a position to identify the accused persons, P.W.3 was also
with him. P.W.4 states in his testimony that at the time of
occurrence he was with his brother Arjun Singh (P.W.3) and
others (not examined) at his door step. At that time party
members came to his house carrying torch light. They were
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
looking for the members of Ranveer Sena. He further states that
the miscreants tied his hands and those of Sachidanand Sharma,
Naresh and Kavindra (deceased). He also states that Rajeshwar
Sharma (P.W 7) got involved in a scuffle with the miscreants
and during this time he managed to escape to Mahesh Sharma's
house (not examined). In para 4, he claims to identify Lalan Pasi
as one of those aggressors, who had tied his hands. He claims
that his son Ranjay Sharma was killed and Ajay Sharma (P.W.
25) was injured. In his cross examination, he states that when he
was caught by the miscreants, his brother Arjun Singh (P.W. 3)
was present. He also states that the night of occurrence was
dark. However, P.W 3 does not corroborate that P.W. 4 was
caught by the aggressors or that his hands were tied by them
although P.W. 3 does make a mention of what happened to
Kavindra (deceased) and Vimlesh. P.W. 25 also does not refer to
the presence of P.W. 4 at his house. Further, no source of
identification has been disclosed on a dark night. Furthermore,
P.W.4 has not identified Uma Paswan in court despite the fact
that he was in attendance on the date of his deposition. Hence,
the uncorroborated testimony of P.W.4 can not be made basis for
arriving at a conclusion of guilt.
137. Bali Ram Sharma (P.W.6-a) has identified Uma
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Paswan after nine years in dock. In his cross-examination, he
admits at paras 5 and 7 that he had not claimed to identify any
of the miscreants in his statement under Section 161 Cr.P.C. He
further clarified that he told the Police that 20-30 persons had
entered his house, but he could not say who had entered. Under
such circumstance, identification of Uma Paswan after nine
years of the occurrence becomes unreliable in view of blatant
contradiction between his statement in court and before the
Police. This discrepancy in his statement under Section 161
Cr.P.C and before the court makes his testimony doubtful.
138. So far as Ran Vijay Sharma (P.W.15) is concerned,
his testimony has been discussed above. He does not say that
there was any light to facilitate identification. The identification
of Uma Paswan made by him in court after almost 11 years of
the occurrence in absence of any light to facilitate identification
gives rise to chance of wrong identification. Moreover, I have
already discussed that his evidence is highly discrepant and does
not inspire confidence. In any case, even if the testimony of
P.W.15 is believed to be true, it will remain uncorroborated
testimony of a single witness, as the evidence given by P.W.4
and P.W. 6-a, in view of the reasons pointed out above, is not
reliable and fulfilling of the criterion of beyond reasonable
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
doubt.
Satyendra Das (Cr.Appeal (DB) No. 1271 of 2016)
139. The appellant Satyendra Das was identified by Bali
Ram Sharma (P.W.6-a) and Dinesh Sharma (P.W.14).
140. So far as Dinesh Sharma (P.W.14) is concerned, he
has stated that he had hidden himself under the sack which was
covered on top with a thick blanket by his neighbour. In the
meanwhile, 15-20 miscreants came, amongst whom he
identified appellant Satendra Das and others, who were carrying
torch lights. In court, he identified only Gorai Paswan. In his
cross examination, he stated the night was dark and he further
repeated that at the time the aggressors came to his house, he
was hidden under the cover of blanket. With regard to the
veracity of his testimony, it can only be said that given his
position under layers of thick sack on top of which a thick
blanket was also placed, any chance of identification ranged
from minimal to non-existent.
141. The evidence of Bali Ram Sharma (P.W.6-a) has
been discussed above. He has identified the appellant on 3 rd
September, 2009 after nine years of the occurrence. He stated
that in order to save himself, he climbed a tree. He identified
appellant Satyendra Das, as one of 20-25 persons, who had
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
come to his house. However, no reliability upon his
identification can be placed as in his cross examination he
admitted that he had not claimed to identify any of the
miscreants in his statement under Section 161 Cr.P.C. Further,
he clearly states that he could not identify any of the miscreants,
who had entered his house.
Lalan Pasi (Cr.Appeal (DB) No. 1271 of 2016)
142. The convict Lalan Pasi was identified by Suresh
Sharma (P.W.4) and Ajay Kumar (P.W.25).
143. So far as Suresh Sharma (P.W.4) is concerned, I
have already discussed his evidence while dealing with the case
of the appellant Uma Paswan and held that the evidence given
by P.W.4 remains uncorroborated by other witnesses mentioned
in his testimony. He identified Lalan Pasi almost 9 years after
the occurrence. He claims that it was a dark night. However, he
did not mention any source of identification in his deposition.
His deposition has not been corroborated either by P.W.3 or by
P.W.25. The evidence given by him has also not been
corroborated by P.W.7 even though he has referred to the
presence of P.W.7 at the time he claims to identify Lalan Pasi.
144. So far as Ajay Kumar (P.W.25) is concerned, he has
identified Lalan Pasi after 16 years of the occurrence. He has
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
not stated that there was any illumination. The dock
identification after so many years cannot be placed reliance for
arriving at the conclusion of guilt. True it is that P.W.25 is an
injured witness, but he has admitted in cross-examination at
para 27 that he was examined by the police 5-6 months after the
occurrence. He also admitted that at Thakurbadi he pretended to
be unconscious and kept his eyes shut as long as the miscreants
were there. He identified the appellant but did not specifically
state, who had taken him from his house and assaulted. Since he
has stated that at Thakurbadi he claimed to become unconscious
and kept his eyes closed as long as the miscreants were present
to convince them that he was not conscious and thereby to
escape a fatal assault, any identification at Thakurbadi by
P.W.25 becomes difficult. Despite being victim of occurrence,
he has given a general statement without attributing any action
to the accused persons identified by him. While his testimony
does corroborate the basic prosecution story, which in any case
was not doubtful, the evidence with regard to identification
becomes doubtful.
145. The remaining six convicts, namely, Mungeshwar
Yadav, Butai Yadav, Dwarik Paswan, Gorai Paswan, Vinay
Paswan and Arvind Paswan have been identified by only one
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
witness.
Vinay Paswan and Arvind Paswan
(Cr.Appeal (DB) No. 184 of 2017)
146. The next set of convicts are Vinay Paswan and
Arvind Paswan. As seen above, the convicts Arvind Paswan and
Vinay Paswan have been named by Ajay Kumar (P.W.25) only,
who is an injured witness, in dock on 30th October, 2015, i.e.,
after sixteen years of the incident. He suffered injury on his leg,
which is simple, and in his stomach, which is grievous. He has
not stated that the miscreants were carrying torches. As noticed
above, the sequence of events as detailed by him is not
supported by P.Ws. 3, 4 and 7. He has baldly taken the names of
the accused persons without clarifying whether they were
involved in taking him to Thakurbadi or assaulting him. He
admitted in his deposition that his statement was recorded by the
police after 5-6 months. Such delay in examination by the
Police may not cast doubts about the basic prosecution story of
the massacre, which in any case is admitted, but surely it makes
the point of his identification vulnerable to doubts regarding its
credibility. Furthermore, the appellants Vinay Paswan and
Arvind Paswan belong to a different village and P.W.25 has no
where stated as to how he came to know them.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
Dwarik Paswan and Gorai Paswan
(Cr.Appeal (DB) No. 1271 of 2016)
147. These two convicts have been identified by Dinesh
Sharma (P.W.14). I have discussed the testimony of P.W.14
hereinabove. As noticed, before the miscreants came to the
terrace where he was hiding, he covered himself with sacks.
Moreover, a neighbor had placed covering over the sack. His
assertion that he identified the accused persons in such a
position cannot be believed, especially as he had admitted that
he had hidden himself to save his life. The story of identification
narrated by him is unconvincing.
Butai Yadav (Cr.Appeal (DB) No.62 of 2017)
148. So far as the convict Butai Yadav is concerned, he
has been identified by Suresh Sharma (P.W.4). The credibility of
his testimony has already been discussed hereinabove. He
claimed that his hands were tied by Butai Yadav and others, but
his testimony has not been corroborated by P.W.3 or P.W.7, who
were said to have been present with him at the time he was
caught by the miscreants. He admits that he ran away from the
place. Therefore, he also had no opportunity to identify Butai
Yadav.
Mungeshwar Yadav
149. So far as the convict Mungeshwar Yadav is
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
concerned, Arvind Kumar (PW-8) has named him in his
deposition. However, he did not identify him in court despite his
physical presence as is evident from the order sheet dated 16 th
June,2009. He does not say that there was any illumination at
the time of the incident. Moreover, he says that he ran away
within two minutes of the miscreants coming. As there were
many miscreants and there was darkness, it would be unsafe to
rely upon such identification, especially when he failed to
recognize the convict in court.
150. The convict Mungeshwar Yadav has been identified
by Arvind Kumar (P.W.8), Butai Yadav has been identified by
Suresh Sharma (P.W.4), Dwarik Paswan and Gorai Paswan have
been identified by Dinesh Sharma (P.W.14) and Vinay Paswan
and Arvind Paswan have been identified by Ajay Kumar
(P.W.25). Their case has to be considered within the parameters
laid down by the Constitution Bench of the Supreme Court in
Masalti Vs. State of U.P. (Supra), which has consistently been
followed by the Supreme Court in Binay Kumar Singh Vs.
State of Bihar (Supra), Chandra Shekhar Bind Vs. State of
Bihar (Supra) and more recently in Duleshwar Vs. State of
M.P. (Supra). As noticed, the Supreme Court has consistently
taken the view that even though the quality of evidence is
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
paramount, when the size of the assembly is quite large and
many persons have witnessed the incident, it would be useful to
adopt the test of consistency of more than one witness so as to
remove any doubt about the identity of the accused persons as a
member of the assembly. The Supreme Court also emphasized
the utility of this test when the deposition of the witnesses is
general rather than more precise or detailed. I find that in case
of each of the convicts identified by a single witness, the
deposition of the witnesses identifying them is in general terms.
Even P.W. 25, an injured witness, has baldly taken the names of
the accused persons without clarifying whether they were
involved in taking him to Thakurbadi or assaulting him. An
important fact with regard to P.W. 25 is his delayed examination
by the Police. Such delay in examination by the police may not
cast doubts about the basic prosecution story of the massacre,
which in any case is admitted, but surely makes the point of his
identification vulnerable.
151. Thus, the deposition with regard to these
appellants, who have been identified by a single witness after
more than nine years, apart from being isolated, lacks
consistency and precision laid down by the Supreme Court in
Krishna Mochi (Supra) and other decisions, which could make
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
the testimony of a single witness sufficient for convicting the
accused persons in a case where size of assembly was quite
large and many persons had witnessed the incident.
152. 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 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. Only
Suresh Sharma (P.W.4) claimed to identify when his hands were
tied but on other counts his evidence does not inspire
confidence, Ajay Kumar (P.W.25), an injured witness identified
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
them without specifying where and how and Manorama Kuwar
(P.W.8) claimed to identify when her son was taken. 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.
153. Furthermore, the miscreants have been identified in
the dock for the first time more than seven years and extended
up to about 16 years after the occurrence. The circumstances in
which the identifications were made, as discussed above, make
such identification rather weak without any corroboration. The
dock identification was based on recollection of the events,
which took place long back.
154. Admittedly, there was no TIP. The Supreme Court
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
has consistently held in Dana [email protected] Dahu (Supra); Sheo
Shankar Singh vs State of Jharkhand (Supra); Mulla &
Another vs State of U.P.(Supra); Sukhbir Singh vs State of
Punjab (Supra); State of Maharastra vs Sukhdeo Singh
(Supra); Vaikuntam Chandrappa and Ors. vs State of Andhra
Pradesh (Supra) and George & Ors. vs State of Kerala (Supra)
that the evidence of identification of the accused persons at the
trial for the first time is from its very nature, inherently of a
weak character. 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 to 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.
155. 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.,
which reads as under:-
"313. Power to examine the accused.
(1) In every inquiry or trial, for the purpose of
enabling the accused personally to explain any
circumstances appearing in the evidence against
him, the Court-
(a) may at any stage, without previously warning
the accused, put such questions to him as the Court
considers necessary;
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
(b) shall, after the witnesses for the prosecution
have been examined and before he is called on for
his defence, question him generally on the case:
Provided that in a summons- case, where the
Court has dispensed with the personal attendance
of the accused, it may also dispense with his
examination under clause (b).
(2) No oath shall be administered to the accused
when he is examined under sub- section (1).
(3) The accused shall not render himself liable to
punishment by refusing to answer such questions,
or by giving false answers to them.
(4) The answers given by the accused may be taken
into consideration in such inquiry or trial, and put
in evidence for or against him in any other inquiry
into, or trial for, any other offence which such
answers may tend to show he has committed.
(5) The court may take help of Prosecutor and
defence Counsel in preparing relevant questions
which are to be put to the accused and the court
may permit filing of written statement by the
accused as sufficient compliance of this section."
156. 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 previously
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.
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
157. In State of U.P. Vs. Md. Iqram & Anr. Since
reported in AIR 2011 SC 2296, the Supreme Court held:
"...The attention of the accused must
specifically be brought to inculpatory pieces of
evidence to give him an opportunity to offer an
explanation if he chooses to do so.
Therefore, the court is under a legal
obligation to put the incriminating circumstances
before the accused and solicit his response. This
provision is mandatory in nature and casts an
imperative duty on the court and confers a
corresponding right on the accused to have an
opportunity to offer an explanation for such
incriminatory material appearing against him.
Circumstances which were not put to the accused
in his examination under Section 313 Cr.P.C.
cannot be used against him and have to be
excluded from consideration."
158. In Nawal Kishore Vs. State of Bihar, since
reported in (2004) 7 SCC 502, the Supreme Court observed:
"Under Section 313 Cr.P.C. the accused should
have been given opportunity to explain any of the
circumstances appearing in the evidence against
him. At least, the various items of evidence, which
had been produced by the prosecution, should have
been put to the accused in the form of question and
he should have been given opportunity to give his
explanation. No such opportunity was given to the
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
accused in the instant case. We deprecate the
practice of putting the entire evidence against the
accused put together in a single question and
giving an opportunity to explain the same, as the
accused may not be in a position to give a rational
and intelligent explanation. The trial judge should
have kept in mind the importance of giving an
opportunity to the accused to explain the adverse
circumstances in the evidence and the Section
313 examination shall not be carried out as an
empty formality. It is only after the entire evidence
is unfurled the accused would be in a position to
articulate his defence and to give explanation to
the circumstances appearing in evidence against
him. Such an opportunity being given to the
accused is part of a fair trial and if it is done in
slipshod manner, it may result in imperfect
appreciation of evidence."
159. In Dara Singh And Anr. vs The State of Punjab
since reported in AIR 1952 P H 214, the Supreme Court held
"... it is not sufficient compliance to string together a long
series of facts and ask the accused what he has to say about
them. He must be questioned separately about each material
circumstance which is intended to be used against him. The
whole object of the section is to afford the accused a fair and
proper opportunity of explaining circumstances which appear
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
against him. The questioning must, therefore, be fair and must
be couched in a form which an ignorant or illiterate person will
be able to appreciate and understand. Even when an accused
person is not illiterate, his mind is apt to be perturbed when he
is facing a charge of murder. He is, therefore, in no fit position
to understand the significance of a complex question. Fairness
therefore requires that each material circumstance should be
put simply and separately in a way that an illiterate mind, or
one which is perturbed or confused, can readily appreciate and
understand."
160. In Reena Hazarika Vs. State of Assam, since
reported in AIR 2018 SC 5361, the Supreme Court held:
"Section 313, Cr.P.C. cannot be seen simply as
a part of audi alteram partem. It confers a
valuable right upon an accused to establish his
innocence and can well be considered beyond a
statutory right as a constitutional right to a fair
trial under Article 21 of the Constitution, even if
it is not to be considered as a piece of
substantive evidence, not being on oath under
Section 313(2), Cr.P.C. The importance of this
right has been considered time and again by
this court, but it yet remains to be applied in
practice as we shall see presently in the
discussion to follow. If the accused takes a
defence after the prosecution evidence is closed,
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
under Section 313(1)(b) Cr.P.C. the Court is
duty bound under Section 313(4) Cr.P.C. to
consider the same. The mere use of the word
'may' cannot be held to confer a discretionary
power on the court to consider or not to
consider such defence, since it constitutes a
valuable right of an accused for access to
justice, and the likelihood of the prejudice that
may be caused thereby. Whether the defence is
acceptable or not and whether it is compatible
or incompatible with the evidence available is
an entirely different matter. If there has been no
consideration at all of the defence taken under
Section 313 Cr.P.C. in the given facts of a case,
the conviction may well stand vitiated."
161. 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.
162. 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 seven standard and
identical questions even though the witnesses against them are
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
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, in view
of the ratio laid down by the Supreme Court in State of U.P. Vs.
Md. Iqram & Anr (Supra), Nawal Kishore Vs. State of Bihar
(Supra), Dara Singh And Anr. vs The State of Punjab (Supra)
and Reena Hazarika Vs. State of Assam (Supra), the material
not put to the accused cannot be taken into consideration for
convicting them.
163. Thus, the identification of the accused persons by
the witnesses in the court cannot be relied upon to convict them.
164. Moreover, the conviction in a criminal trial is
required to be certain and not doubtful. The burden of proof of
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
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.
165. Accordingly, the impugned judgment dated 15th
November, 2016 and order of sentence dated 27 th 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. The appellants
Bachesh Kumar Singh (Cr.Appeal (DB) No. 32 of 2017),
Budhan Yadav and Gopal Sao (Cr. Appeal (DB) No. 30 of
2017), Butai Yadav (Cr.Appeal (DB) No. 62 of 2017), Satendra
Das, Lalan Pasi, Dwarik Paswan, Kariman Paswan, Gorai
Paswan and Uma Paswan (Cr.Appeal (DB) No. 1271 of 2016),
Mungeshwar Yadav (Cr.Appeal (DB) No. 96 of 2017), Vinay
Paswan and Arvind Paswan (Cr.Appeal (DB) No. 184 of 2017)
are directed to be released forthwith, if they are not required in
any other case.
166. These appeals stand allowed.
167. The reference made by the trial court under Section
366 of the Cr.P.C is rejected.
168. The Patna High Court, Legal Services Committee
Patna High Court D. REF. No.2 of 2017 dt.21-05-2021
is, hereby, directed to pay Rs. 10,000/- to Ms. Surya Nilambari,
learned amicus curiae in Death Reference Case No. 2 of 2017 as
a consolidated fee for the services rendered by her.
(Ashwani Kumar Singh,J.)
Arvind Srivastava,J: I agree.
( Arvind Srivastava, J)
Pradeep/-
AFR/NAFR AFR
CAV DATE 15.04.2021
Uploading Date 21.05.2021
Transmission Date 21.05.2021
