IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.407 of 2005
Against the judgment of conviction and order of sentence dated 29.4.2005
passed by 7th Addl. Sessions Judge, Gaya in Sessions Trial
No.89/2003/136/2003
===========================================================
Shailesh Kumar .... .... Appellant
Versus
State of Bihar .... .... Respondent
===========================================================
Appearance :
For the Appellant : Mr. Abhimanyu Sharma,Advocate
Mr. Shishir Kumar 1, Advocate
For the State : Mr. Ashiwini Kumar Sinha, APP
===========================================================
CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
and
HONOURABLE MR. JUSTICE VIKASH JAIN
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA)
In this appeal the appellant Shailesh Kumar has challenged the
judgment of conviction and order of sentence dated 29.04.2005 passed by the
learned 7th Additional Sessions Judge, Gaya in Sessions Trial
No.89/2003/136/2003 whereby and whereunder the appellant has been
convicted under Section 302/34 IPC and 27 of the Arms Act and has been
sentenced to undergo R.I. for life term for the offence under Section 302 IPC
and he has been further sentenced to undergo R.I. for three years for the
offence under Section 27 of the Arms Act. The sentences have been ordered to
run concurrently.
2. Fardbeyan (Exhibit 4 ) relates to an occurrence dated 1.5.2002
which was recorded against one unknown male and one unknown female on
the basis of fardbeyan of Havildar Bandan Oraon (not examined) by Inspector
Raj Kumar Singh officer-in-charge, Kotwali P.S., Gaya(not examined) at 3.30
Patna High Court CR. APP (DB) No.407 of 2005 dt.23-09-2011
2
A.M. on 1.5.2002 wherein the informant has stated that he was at patrolling
duty along with Home Guard Constable No.14559 Baldeo Yadav (deceased),
Home Guard Constable No.11673 Jagdeo Yadav( not examined ) and Home
Guard Constable No.11445 Baleshwar Yadav and the said Home Guards in
course of patrolling arrived at Jehanabad More at 3.00 A.M. in the night. At
that time Jagdeo Yadav went towards east of the road whereas Baldeo Yadav
went towards west of the road and Baleshwar Yadav remained on the road.
In the meanwhile, a boy and a girl came up on the road and Baldeo Yadav
signaled them to stop and wanted to know their identity and their
relationship and Baldeo Yadav (deceased) went towards the boy. The boy
and girl wanted to escape and Baldeo Yadav tried to catch him. On this the
boy took out a pistol from his waist and fired at Baldeo Yadav and Baldeo
Yadav fell down. Again the boy wanted to fire, but he was chased and so he
escaped. Balehswar Yadav fired from his rifle, but the boy and girl went
towards North and they were chased to some distance. Despite all efforts,
they could not be located. Baldeo Yadav was injured. He was taken to
hospital. The boy appeared to be the age of 20-22 years. Fardbeyan resulted
in Kotwali P.S.Case No.119 of 2002 under Sections 307/314/333/353/34
IPC and 27 of the Arms Act. Formal FIR (exhibit 5) and seizure list were
prepared. The seized articles including the empty cartridge and bloodstained
sample were sent for examination to Forensic Science Laboratory,
Bihar,Patna and reports were received. A test identification parade was
organized and T.I. parade chart (Exhibit-1) was prepared by PW4 Sri
Mritunjay Kumar Singh, Judicial Magistrate. In course of treatment the
injured Home Guard Constable Baldeo Yadav died and Section 302 IPC was
added on 3.5.2002. The case was investigated into and after completion of
Patna High Court CR. APP (DB) No.407 of 2005 dt.23-09-2011
3
investigation, charge sheet was submitted against this appellant and one
Rupa.
3. The case of the co-accused Rupa Kumari in the midst of trial was
transferred to Juvenile Justice Board. Trial was faced only by the appellant.
The charge was framed under Section 302, 304 IPC and 27 of the Arms Act.
4. After framing of charges evidences of altogether six witnesses
have been recorded, out of whom PW1 Rekha, PW2 Munni are the members
of a brothel where allegedly the appellant on the previous night stayed with
co-accused Rupa and further they were found missing from the brothel. PW3
Baleshwar Prasad Yadav, a Home Guard Constable has stated that he was on
patrolling duty in the night of the alleged occurrence along with the
deceased. PW4 Shri Mritunjay Kumar Singh is the Judicial Magistrate of Gaya
who have conducted the T.I. parade of the accused Shailesh Kuamr. PW5 Dr.
Arvind Kumar, Professor and Head of Department of Forensic Medicine,
Magadh Medical College, Gaya, who on 1.5.2002 has conducted the post
mortem examination of the dead boy of the deceased Baldeo Yadav and
found a wound of injury 5″ x 2 ½” and oral cavity present at the left side of
the face with exposed oral cavity. It has also been indicated that the death is
caused on account of fire arm injury. From the neck of the deceased a
metallic bullet was recovered and the factum of death further supported
from the inquest report (Exhibit -7). Death of Baldeo Yadav caused by
firearm has not been even challenged.
5. The prosecution has examined six witnesses, they are PW1
Rekha, PW2 Munni, PW3 Baleshwar Prasad Yadav, PW4 Shri Mritunjay
Kumar Singh, Judicial Magistrate, Gaya, PW 5 Dr. Arvind Prasad and PW 6
Indradeo Singh, Advocate’s Clerk. The prosecution has not able to prove the
Patna High Court CR. APP (DB) No.407 of 2005 dt.23-09-2011
4
culpability of the evidence brought on record. The prosecution is also not
able to prove the culpability of the co-accused in the offence. Neither the
informant nor the Investigating officer has been examined.
6. In the present case, T.I. parade of the accused was conducted
on 8.5.2002 by PW4. PW 4 at that time was posted as Judicial Magistrate, Civil
Courts, Gaya and he was deputed by the Chief Judicial Magistrate to conduct
test identification parade of Shailesh Kumar, the accused of Kotwali P.S.Case
No.119/20002. For that purpose he went to Jail and after completing all
formalities for holding T.I.parade he asked the witnesses to identify the
accused persons. PW3 Baleshwar Prasad Yadav identified the accused person
as assailant. Rekha PW1, Munni PW 2 have identified the accused. The
identification of accused by Rekha and Munni was in the capacity that
Shailesh Kumar visited the brothel which was run by PW1 and in that
capacity they have attended the T.I. parade.
7. The prosecution case is in two parts. On one part the
evidence has been brought that just in the night of occurrence Shailesh
Kumar gone to the brothel of PW1 and 2 and Rekha ( PW1) has made her
statement that on the night of occurrence the accused visited the brothel
and stayed with Rupa and in the night he fled away with Rupa and
therefore, PW 1 and PW 2 identified the accused only in the capacity of
brothel visitor. PW 4 Sri Mritunjay Kumar Singh, Judicial Magistrate, Gaya
has formally proved the T.I.Parade. PW 6 has proved certain documents and
on the basis of his evidence Inquest Report, FIR etc., have been marked.
Thus the prosecution has been relied upon PW 3, who has stated that on
1.5.2002 during patrolling he was on duty at 3.00 P.M. and at that time
Bandhan Oraon, informant (not examined), Jagdeo Yadav (not examined)
Patna High Court CR. APP (DB) No.407 of 2005 dt.23-09-2011
5
and Baldeo Yadav ( deceased) were also there and they were on duty. At
that very moment the boy and girl came there and PW 3 wanted to ascertain
their identity. when the boy tried to escape, Baldeo Yadav made effort to
overpower him, then he was retaliated by the boy who tried to escape and
the boy fired causing injury to Baldeo Yadav. PW 3 came to know later on
that it was the appellant who has fired and the girl was Rupa.
8. PW 3 has identified the accused in Court and his deposition
was recorded on 23.2.2004 and the occurrence is of 1.5.2002. This PW 3 had
earlier failed to identify the accused when he has participated in the T.I.
Parade on 8.5.2002 and that was just after a week of occurrence. In front of
the Judicial Magistrate (PW 4), PW 3 failed to identify the accused Shailesh
Kumar. He had identified the accused in the dock. Such identification cannot
be considered true identification in view of the contrary nature of
identification by the witnesses. Identification for the first time in Court needs
support from the identification at the T.I. parade. When both are in
contradiction, then a doubt is created regarding the manner of identification.
In the present case, the doubt has further compounded from the fact that PW
3 was given an earlier opportunity to identify, but there he has failed to
identify and this fact has been noted by the Judicial Magistrate. Hence, his
identification in Court cannot be evidence which can be relied upon. Except
the evidence of PW3 who has not identified the accused in T.I. parade there is
no evidence at all on the basis of which it can be said that the appellant in any
manner has participated in the occurrence.
9. Learned counsel for the appellant has drawn our attention towards
an error of record committed by the trial court where he has noted that PW 3
has identified the accused. T.I. Chart has been fully discussed by PW 4 and he
Patna High Court CR. APP (DB) No.407 of 2005 dt.23-09-2011
6
in paragraph 1 of the judgment has detailed the manner of identification
where he has stated that Baleshwar Prasad Yadav has not identified the
accused. This oral version of the witness PW 4 is supported by the T.I. chart.
Hence, it appears that the noting in the judgment regarding identification by
PW 3 is nothing but an error of record. On this very error of record only order
of conviction has been based. Except this there is no evidence at all by which
the appellant can be linked with the offence. Thus, the judgment of conviction
is held to be improper and illegal.
10.In the result the judgment of conviction and order of sentence is
set aside and the appeal is allowed. The appellant is acquitted of the charges.
Let the appellant be released from custody forthwith, if not wanted in any
other case.
Patna High Court (Shyam Kishore Sharma, J.)
Dated, the 23rd September, 2011
NAFR
Chandran
(Vikash Jain, J.)
