2024 Supreme(Pat) 951

IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and RAJESH KUMAR VERMA, JJ.
Cr. App. (DB) Nos. 543 with 455, 523, 567, 577, 579, 605 and 789 of 2018
(11.12.2024)
Nikesh Dubey (in 543)
Munni Devi (in 455)
Mukesh Pathak @ Chutul Pathak
@ Aditya Kumar (in 523)
Vikash Jha @ Kalia (in 567)
Pintu Lal Dev @ Ajay Kumar (in 577)
Sanjay Lal Dev (in 579)
Pintu Jha @ Pintu Kumar Jha (in 605)
Pintu Tiwari @ Pintu Tiwary (in 789)
vs.
State of Bihar ... Respondent
(In all)

Headnote:

Indian Penal Code, 1860 – Sections 302, 387/109, 386/116 and 120B & Arms Act, 1959 – Section 27 – Murder – Appellants along with other accused persons alleged to have conspired and killed two engineers of a construction company using fire-arms – The substratum of the prosecution version is based on the inference of the I.O. (P.W. 19) about the activities of Bihar Peoples Liberation Army – The information was through sources which have not been disclosed – No witness appears to have examined to prove those facts viz. of appellant Santosh Jha (since dead) having set up Bihar Peoples Liberation Army and the appellants being active members of the militia. (Para 29)

Test Identification Parade – No Test Identification Parade was held during the course of investigation – The only person who identified appellants/Nikesh, Mukesh, Vikash and Santosh (since dead) is P.W. 15 – He never claimed, either in his fardbeyan or further statement, that he could identify the assailants if shown to him – The incident occurred in a sudden manner and if the prosecution verson is to be accepted, it would not have lasted for more than few minutes – Under such circumstances, Single dock identification would not warrant conviction – True it is that there is no hard and fast rule of a T.I. Parade preceding an identification in dock, but in the present case, nobody was named in the FIR or in the further statement – The lead to investigation was based on the names of two of the appellants in the pamphlets – There is no evidence of who printed those pamphlets and for whom – P.W. 15 had an ample opportunity to see the appellant prior to his identifying the appellants in Court as on each date of hearing, the appellants were brought to the court and there is no evidence of their being brought to the Court 'Ba-Parda' – it is difficult to believe the identification of four of the appellants by P.W. 15 – In the event of no TI Parade having been conducted during the investigation and the incident being sudden and unexpected, lasting for a few minutes, which would have caused pandemonium all around, failure to hold TI Parade was fatal. (Paras 36, 37, 42, 44, 45, 47)

Discovery of Weapons – Recovery becomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime, which actually lies in the authorship of the crime – What would be admissible as a criminating circumstance would be an accused giving information leading to the discovery, being the person who concealed the weapon – In the case at hand, there is no evidence that Mukesh Pathak was at any point of time in possession of any weapon or that he had handed over the weapons either to Vijay Kumar or to Sanjay Jha – Rather, evidence of the I.O. is that Vijay Kumar and Sanjay Jha informed him that weapons had been kept with them by some other named persons but not the appellant – It is really surprising that the Trial Court has accepted such discovery of weapons, not from anyone of the appellants or at their instance, to be admissible under Section 27 of the Arms Act – This alone leaves the court with great doubt with respect to the same weapons having been used in the occurrence. (Paras 49 to 52)

Opinion of Experts – "A court cannot be expected to surrender its own judgment and delegate its authority to a third person, however great" – Though the FSL report talks about the microscopic examination of the breach face marks, firing pin marks and ejector marks on the percussion caps of the cartridges, but no material brought before the Trial Court for him to cross-checked the opinion of the experts to verify its correctness or to come to his own conclusion and satisfaction that the seized weapons were used to fire the crime cartridges.

Burden of Proof – The connecting link between the appellants is sought to be established by the analysis of the CDRs – They could not constitute legal evidence as the certificate required under Section 65B of the Evidence Act has not been filed by prosecution – It is the initial burden of prosecution to prove that the appellants were perticeps criminis – Merely because accommodation was arranged for some of the appellants by the others, it cannot be said with certainty that it was part of the post-occurrence efforts to saw the culprits – The CDR is the only basis for the prosecution to assert so and that have been rendered meaningless with no proper certification under Section 65B of the Evidence Act. (Paras 59, 60, 61 & 64)

Appreciation of evidence – Not a single witness has deposed about the authorship of the pamphlet inscribing names of Mukesh Pathak and Vikash Jha – Allegation of slogan raising by the assailants also do not constitute substantive evidence – Appellants given benefit of doubt – Appeals allowed – Appellant acquitted. (Paras 68 & 73)

Malkhan Singh Vs. State of M.P., (2003) 5 SCC 746; Wakil Singh Vs. State of Bihar, AIR 1981 SC 1392; Subash and Shiv Shankar Vs. State of U.P., AIR 1987 SC 1222; N.J. Suraj Vs. State (2004) 11 SCC 346; Laxmipat Choraria Vs. State of Maharashtra, AIR 1968 SC 938; Dana Yadav @ Dahu Vs. State of Bihar, (2002) 7 SCC 295; Vijayan Vs. State of Kerala, (1999) 3 SCC 54; Shaikh Umar Ahmed Shaikh Vs. State of Maharashtra, (1998) 5 SCC 103; Pullukuri Kotaya's case (AIR 1947) PC, 67; K. Chinnaswamy Reddy Vs. State of A.P., AIR (1962) SC 1788; Anter Singh Vs. State of Rajasthan, (2004) 10 SCC 657; Ramanand @ Nandlal Bharti Vs. State of U.P., (2022) SCC online SC 1396; State of H.P. Vs. Jai Lal, (1999) 7 SCC 280; Titli vs Alfred Robert Jones, AIR (1934) ALL 273; Ramesh Chandra Agrawal Vs. State of Regency Hospital Ltd., AIR (2010) SC 806 – Relied.

Venkatesh @ Chandra Vs. State of Karnataka, 2022 (2) BLJ 175 (SC) : (2022) 16 SCC 797; Paramjeet Singh @ Pamma Vs. State of Uttarakhand, 2011 (1) BLJ 27 (SC) : AIR (2011) SC 200 – Referred.