Patna High Court: The Division Bench of Ashwani Kumar and Arvind Srivatava, JJ., acquitted the death convicts in Senari Massacre incident that took place on 18-03-1999. The Bench stated,
“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.”
The undisputed facts of the case were that on 18-03-1999 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. A large number of accused persons were charge-sheeted and out of them 38 persons faced the present trial. The Trial Court made a reference for confirmation of death sentence of main accused.
Contentions raised by the Appellants
Assailing the impugned judgment of conviction and order of sentence, counsel for the appellants, Mr. Surendra Prasad Singh submitted that there was no Test Identification Parade (TIP) to pinpoint the assailants during investigation. Further the witnesses had claimed to identify the miscreants in the flashing of torch lights carried by the miscreants and such dock identification could not be made basis of a conviction. Relying on the decision of the Supreme Court in Chhannu Lal Verma v. State of Chhattisgarh, (2019) 12 SSC 438, wherein it had 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”; the counsel contended that the appellants belong to a depressed class and in view of the surrounding circumstances, it was not a fit case for imposition of death sentence.
Analysis and Observations by the Court
Whether failure to Conduct TIP would make subsequent identification of accused in the Court inadmissible?
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 can be used only to corroborate the identification of the accused in the court of law. In Sheo Shankar Singh v. State of Jharkhand, (2011) 3 SCC 654, the Supreme Court observed that the CrPC does not oblige the investigating agency to necessarily hold a TIP. In State of Maharashtra v. Sukhdeo Singh, (1992) 3 SCC 700, it had been held by the Supreme Court that the “…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.” On a perusal of the ratio laid down by the Supreme Court, the Bench held that ordinarily an accused should not be convicted on the testimony of witnesses identifying for the first time in court without any corroboration. 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.
Whether Conviction can be based on the testimony of Single Witness in Carnage cases?
So far as conviction of an accused on the testimony of a single witness was concerned, the Bench opined that the general principle of law is that conviction may be based on the testimony of single witness without any corroboration, if the evidence of the solitary witness is fully reliable, trustworthy and inspires confidence. 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, the Supreme Court had held in Binay Kumar Singh v. State of Bihar, (1997) 1 SSC 283, that, “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.”
Hence, the Bench held that there is no rule of law for universal application that conviction cannot be sustained on the evidence of solitary witness and that the corroboration, unless required by the statute, is a rule of prudence and not rule of law. However, the Bench added,
“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.”
Further, from the ratio laid down by the Supreme Court in the aforementioned cases, it would also be evident
Findings of the Court
Observing that, the appellants had not challenged the homicidal death of 34 persons and injuries sustained by five persons, the Bench said, it had rightly been submitted on behalf of the appellants that the FIR, though contained name of 16 persons, the appellants were not amongst them. Having analyzed the testimony of the witnesses in respect of each of the convicts and after considering the case of each convict separately, the Bench opined 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. In such a state of complete chaos, witnesses 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. Other witnesses who claimed to identify inspire confidence, Their evidence on other counts have been found doubtful. 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, make such identification rather weak without any corroboration.
Another important factor was the manner in which the appellants were deprived of their statutory right to be heard, as provided under Section 313 of the CrPC. Section 313 (1)(b) casts a duty on the Court to give an opportunity to the accused to explain the incriminating material against him. In State of U.P. v. Md. Iqram, (2011) 8 SSC 80, the Supreme Court had 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.” Hence, the Bench opined that,
“The accused persons have been subjected to seven standard and identical questions even though the witnesses against them were disparate; this sort of examination goes against the essence of Section 313. Thus, the material not put to the accused cannot be taken into consideration for convicting them.”
In the backdrop of above mentioned, after appreciating evidence adduced during trial, the Bench reached to the findings that there was a real and reasonable doubt as to the guilt of the appellants. Accordingly, the impugned judgment and order of sentence passed in Sessions Trial so far as the appellants in these appeals were concerned were set aside. The appellants Bachesh Kumar Singh, Budhan Yadav and Gopal Sa, Butai Yadav, Satendra Das, Lalan Pasi, Dwarik Paswan, Kariman Paswan, Gorai Paswan and Uma Paswan, Mungeshwar Yadav, Vinay Paswan and Arvind Paswan were directed to be released and the reference made by the Trial Court under Section 366 of the CrPC was rejected.
[State of Bihar v. Bachesh Kumar Singh, 2021 SCC OnLine Pat 1011, decided on 21-05-2021]
Kamini Sharma, Editorial Assistant has put this report together
Appearance before the Court by:
For the Appellants: APP Mayanand Jha, APP
For the Respondents: Amicus Curiae Surya Nilambari