IMPORTANT POINTS
Non conduction of TI Parade is not fatal, normally; but when no witness identifies any accused it assumes significance.
Not mentioning a significant witness or names of the accused in FIR makes the proceedings doubtful.
An accused can be declared juvenile in accordance with section 7A of the Act.

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

The judgment and order dated 11.1.2008 passed by the High Court of Judicature at Patna in Death Reference No.7/2005 along with Criminal Appeal No. 622/2005 and Criminal Appeal No. 643/2005, whereby the High Court answered the death reference in the negative and set aside the judgment of the Sessions Court convicting the accused-Nand Kishore Singh and Maheshwar Singh for the offences under Section 396 IPC is called in question in these appeals. By the very judgment, the High Court also set aside the conviction of Maheshwar Singh under Section 412 of IPC and Criminal Appeal No.763/2005 filed by Mintu Kumar @ Mintu Singh was remanded for consideration by Juvenile Justice Board constituted to deal with juveniles under the provisions of Juvenile Justice (Care & Protection of Children) Act, 2000. These appeals are not only relating to acquittal of Nand Kishore Singh and Maheshwar Singh but also relate to the finding arrived at by the High Court that Mintu Kumar @ Mintu Singh was a juvenile at the time of commission of offence in question.

2. The case of the prosecution in brief is that in the intervening night between 21st-22nd April, 1999 at about 12.00, about 30-40 unknown persons committed dacoity in the house of informant (PW9) and also in the adjoining house of his uncle-Madhukant Jha (deceased). The dacoits looted away gold chains, gold ring, bicycle and other household articles and cash from the two houses. In the course of dacoity, the dacoits fired gun shot towards Madhukant Jha aged about 75 years who died immediately thereafter due to gun shot injuries sustained. The dacoits were young and of different complexion; they fled away from the scene after committing the dacoity and murder. The first informant (PW9) was the eye-witness of the incident. Immediately, after the accused fled away from the scene, the informant came to know about the dacoity in the house of his uncle Madhukant Jha (deceased) and that he died due to shots fired at him; he came to the house of Madhukant Jha and saw his uncle lying dead. Ishwar Nath Jha (PW8) and Gena Ram (PW 7) also had sustained injuries because of the assault by the dacoits using stick and bamboos. One of the dacoit was armed with gun and other dacoits were armed with lathis, bamboo, country made pistol and stick in their hands. While fleeing, the dacoits had exploded the bomb consequent upon which Gena Ram (PW 7) was injured. The first information did not specify any of the names of the dacoits. The informant claimed that himself and the family members of his uncle (deceased) could identify the dacoits who looted the articles. The first information was lodged at 3.15 am on 22.4.1999 at the place of incidence, i.e., Bhau Chapra after due consultation with all family members of deceased and others. The police official of P.S. Meenapur (district Muzaffarpur) recorded the first information.

3. After the investigation, police laid the charge-sheet against only four persons for the offences punishable under Section 396 and 412 of IPC. For the very offences, four accused including the respondents were tried. The Trial Court on evaluation of the material on record convicted the three accused namely, Nand Kishore Singh, Mintu Singh and Maheshwar Singh for the offences punishable under Section 396 IPC, the accused-Maheshwar Singh was also convicted under Section 412 IPC; whereas the another accused, i.e., Ramesh Singh, was acquitted with respect to both offences. The Sessions Court sentenced the accused-Nand Kishore Singh to death punishment and sentenced the other two convicted accused for imprisonment for life under Section 396 IPC. No separate sentence was awarded against the accused-Maheshwar Singh for the offence under Section 412 IPC.

4. The convicted accused filed appeals questioning the judgment and order of conviction and the same came to be allowed by the impugned judgment in so far as two accused-Nand Kishore Singh and Maheshwar Singh were concer