State of Bihar vs Rakesh Kumar Mishra - 2015 Supreme(Pat) 1103

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2015 Supreme(Pat) 1103

HIGH COURT OF PATNA
V.N. SINHA AND JITENDRA MOHAN SHARMA, JJ.
(4.11.2015)
Death Ref. Nos. 1 of 2014 with Cri. Appeal No. 540, 595, 612, 628, 650, 680, and 652 of 2014
The State of Bihar (in 1)
Kumud Kumar @ Kumod
Kumar (in 540) : Appellants
Rakesh Kumar Mishra (in 595)
Soni Kumar @ Soni Rajak (in 612)
Anil Kumar (in 628)
Shamshe Alam @
Md. Shamse Alam (in 650)
Arun Kumar Singh (in 680)
Kamlesh Kumar Gautam (in 652)
Vs.
Shamshe Alam @
Md. Shamse Alam (In 1)
The State of Bihar : Respondent
(In all)

Advocates:
For the Appellants : M/s Surendra Singh, Kanhaiya Prasad Singh, Akhileshwar Prasad Singh, Ajay Kumar Thakur, Ram Sevak Chaudhary, Prabhu Narayan Sharma, Anil Singh, Shiva Shankar Prasad Singh, Surya Prakash Singh, Pushpendra Priyadarshi, Amrit Anunay, Jitendra Prasad Shaha, Hans Raj, Ravi Ranjan and Anjani Kumar Jha.
For the C.B.I. : M/s Bipin Kumar Sinha, Subhash Chandra Mishra, Sunil Kumar Ravi and Shashi Shekhar Kumar Prasad.
For the Informant : M/s Chitranjan Sinha and Ravi Bhardwaj.

Headnote:Indian Penal Code, 1860–Sections 302, 148, 342 and 201–Arms Act, 1959–Section 27–Code of Criminal Procedure, 1973–Section 366–Fake encounter killing–Death sentence–Evidence of identification unsupported by photograph is nothing more than an expression of opinion–Evidence does not establish that test cartridges and empty cartridges were fired from same weapon or that misfired cartridge was fired from same weapon–expert witness did not take composite photograph of empty cartridges superimposed by test cartridges–Photographs taken were not in same condition of light–If identification marks were different at face of cartridge that would show that they were not fired from same weapon, evidence of Expert in absence of photograph cannot be relied upon–It could not be proved that shots were fired from service Revolver of accused Police Officer–Accused Police Officer having not been examined as witness, his written report cannot be looked into and read into evidence–Conviction and sentence set aside and accused persons acquitted–State directed to grant compensation to parents of each of three deceased a sum of Rs. 10 lacs from Victim Compensation Fund referred to under Government of India, Ministry of Home Affairs letter No. 24013/94/Misc./2014-CSR.III dated 14th October, 2015. (Paras 52, 53, 58, 61, 68, 69, 72, 74 and 75)
Indian Evidence Act, 1872–Section 45–Expert opinion–Duty of expert witness is to furnish to Court necessary scientific criteria, all materials together with reasons which induce him to come to conclusion so as to enable Judge to form his independent judgment by application of criteria to facts found so as to test conclusion arrived by Expert–Scientific opinion if intelligible, convincing and tested becomes a factor and often an important factor for considering other evidence of case–Credibility of expert witness depends on scientific data, materials and reasons which he has furnished in support of conclusion–Expert is not a witness of fact–His evidence is really of an advisory character. (Para 60)

V.N. SINHA, J.:–Instant death reference and the seven analogous appeals arise out of judgment of conviction, order of sentence dated 05/ 24.06.2014, passed by Ad hoc Additional District and Sessions Judge-I, Patna, in Sessions Trial No. 523/04 & S.T. No. 918/04, arising out of Gardanibagh (Shastri Nagar) P.S. Case No. 868/02 dated 29.12.2002, which was transferred to C.B.I. whereafter the case was renumbered as R.C No.5(S) of 2003 whereunder Accused No. 1 Shamshey Alam appellant in Criminal Appeal (DB) No. 650 of 2014 has been convicted for the offences under Sections 302, 148, 342 and 201 of the Penal Code and Section 27 of the Arms Act, sentenced to suffer capital punishment, Rigorous Imprisonment for 3, 1, 7 years with further direction to pay fine of Rs. 10,000/- each to the family of the three deceased under Sections 302, 148, 342, 201 of the Penal Code respectively, in default of payment of fine to further undergo rigorous imprisonment for three months. The sentences have been directed to run concurrently. No separate sentence, however, has been awarded under Section 27 of the Arms Act.

Accused No.2 Arun Kumar Singh, appellant in Criminal Appeal (DB) No. 680 of 2014 has been convicted for the offences under Sections 148, 342, 302/149 and 201 of the Penal Code, sentenced to suffer Rigorous Imprisonment for life till death as also to pay fine of Rs. 10,000/- each to the family of the three deceased under Section 302/149 of the Penal Code, in default of payment of fine to further undergo Rigorous Imprisonment for three months. He has further been sentenced to suffer Rigorous Imprisonment for 3, 1 and 3 years with fine of Rs. 10,000/- each to family of the three deceased, in default of payment of fine to suffer Rigorous Imprisonment for three months for the offence under Sections 148, 342 and 201 of the Penal Code respectively. His sentences are also directed to run concurrently.

Accused Nos. 3 to 8, appellant in Criminal Appeal (DB) Nos. 652, 595, 612, 540, 628 all of 2014 have been convicted for the offences under Sections 147, 342, 307/149 and 201 of the Penal Code, sentenced to suffer imprisonment for life till death as also to pay fine of Rs. 10,000/- each to family of the three deceased, in default of payment of fine to suffer Rigorous Imprisonment for three months for the offence under Section 307/149 of the Penal Code. They have further been sentenced to suffer Rigorous Imprisonment for two, three year with direction to pay fine of Rs. 5,000/- each to family of the three deceased, in default of payment of fine to suffer Rigorous Imprisonment for three months, Rigorous Imprisonment for one year for the offences under Sections 147, 201 and 342 of the Penal Code respectively. Sentences imposed on Accused Nos. 3 to 8 have, however, been directed to run concurrently.

2. Prosecution case, as set out in the written report of Mukesh Ranjan (P.W. 1) proprietor of Manbhawan Sweets, Ashiyana Road, Patna-14 dated 29.12.2002, addressed to Superintendent of Police, Patna, on the basis of which aforesaid Gardanibagh (Shastri Nagar) P.S. Case No. 868/02 dated 29.12.2002 was registered, is that yesterday i.e. 28.12.2002 his brother Vikash Ranjan got ready around 4:00 P.M. for going to Ara, went with friend Prashant to park his scooter at the residence of Prashant. Both were also accompanied by their friend Himanshu. The three went to the STD booth of Kamlesh Kumar Gautam (Accused No.3) to telephonically call their another friend, protest was raised on the issue of false bill being raised by the booth owner leading to quarrel between them and booth owner. STD booth owner Gautam with the assistance of the owner of Sammelan Market assaulted the three, the market owner also made the three captive inside the market by locking the grill. Afterwards owner of the hardware shop with the assistance of the owner of Sammelan Market also gave the three good thrashing and telephonically called both Digha, Shastri Nagar police with force. Police force

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2015 Supreme(Pat) 1103

Cases Referred (1)