Amar Nath Jha vs Nand Kishore Singh

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 2

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 3

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 4 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 concerned. Consequently, the judgment and

order of conviction and sentence imposed upon them was set aside. So

far as Mintu Kumar @ Mintu Singh is concerned, the High Court

confirmed the judgment of conviction passed by the Trial Court;

however, since it was found that Mintu Kumar @ Mintu Singh was

juvenile on the date of the offence and he was given benefit of Section

7A of Juvenile Justice Act (Care & Protection of Children) Act, 2000,

as amended in 2006, his case was forwarded to the Board constituted

to deal with the Juvenile Justice (Care & Protection of Children) Act,

2000, with the direction to pass appropriate orders in respect of Mintu

Kumar @ Mintu Singh.

5. Before proceeding on merits of the matter, it is pertinent to note

that the State has not filed an appeal against the acquittal of the

respondents-Nand Kishore Singh and Maheshwar Singh. The original

informant-Amar Nath Jha had lodged the special leave petitions. When

the matters were posted before the Court on 08.07.2011, the first

informant sought permission to withdraw the special leave petitions 5

though by then this Court had granted permission to him to file

special leave petitions on 09.01.2009. This Court was pleased to reject

the prayer of informant to withdraw the special leave petitions by

observing that the proceedings in the criminal case, especially of this

nature cannot depend on the whims of the informant. Since the

informant was not interested to pursue the appeals, Mr. Himanshu

Munshi, advocate, was appointed as an amicus curiae to pursue the

appeals. Further, two accused mentioned supra though were served

with the notice, remained absent; hence in compliance of the

directions of this Court, the Supreme Court Legal Services Committee

appointed Ms. Nidhi, Advocate as amicus curiae, and on her behalf

Smt. Kiran Suri, Senior Advocate assisted the court on behalf of the

unrepresented accused. Heard the learned advocate appearing on

behalf of the State and both amici curiae and perused the records. On

going through the material on record and after hearing we find that

the Division Bench of the High Court has answered each and every

point on which the Trial Court had convicted the accused. The High

Court has given detailed reasons to acquit and as to how and why the

case of the prosecution as made out before the Court is unbelievable,

in so far as the respondents are concerned.

6. Having perused the documents available on record and having

heard the contentions of learned advocates appearing on behalf of

both parties, we are of the considered opinion that three essential 6

aspects of this case are to be concentrated which may indicate

whether the prosecution was able to prove the case beyond reasonable

doubts.

7. The first aspect, we need to consider is that the inadequacy of

Test Identification Parade [hereinafter referred as ‘TIP’ for brevity] has

been conducted herein. Though it is a case of the prosecution that the

dacoits were armed with a gun, the country made pistol, lathis and

bamboos etc., but none of these weapons were recovered from the

accused persons except a piece of dhoti, blouse and nose stud, other

articles alleged to have been stolen by the dacoits were not recovered.

It is borne out of the record that the accused-Nand Kishore Singh and

Maheshwar Singh were not subjected to T.I.P. The only person who

was subjected to T.I.P. was a minor (Mintu Singh). It may be of some

relevance to note that aforesaid Mintu Singh who has identified during

the T.I.P. was referred to Juvenile Justice Board, as he was found to

be a Juvenile. In this context we may note that in cases like present

one T.I.P. acquires significance and lack of conduction of the same

cannot be ignored. It is well settled that non-conduction of T.I.P. may

not itself be fatal to the prosecution case but certainly it must be

weighed in by the Court while considering the facts and circumstances

of each case. [See: Kanta Prashad V. Delhi Administration, 1958

CrilJ 698 and Vaikuntam Chandrappa & Ors. V. State of Andhra

Pradesh, AIR 1960 SC 1340].

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8. On a different note we may notice that PW-7 (Gena Ram) who

was one of the injured witnesses on account of the bomb thrown by

the dacoits, has himself not identified any of the dacoits. It is indeed

suspicious to note that the injured witness deposed that he arrived at

the place of occurrence only after dacoits managed to run away. PW-9

(the informant) has also failed to identify any of the dacoits. It may not

be out of context to note that even PW-10 and PW-12, PW-8 and PW-4

have equivocally have failed to identify or recognize the said dacoits.

This factor was considered by the High Court which may be noted

from the impugned judgment.

9. The second aspect is the lack of recovery and identification of

stolen articles. It is already mentioned above that the recovery of the

stolen article was limited to one dhoti, a blouse and a nose stud.

These articles were recovered from Maheshwar Singh which have been

identified only by PW-10 (Gita Devi), PW-12 (Indu Devi) and PW-4

(Uday Nath Jha). Although, number of witnesses including the family

members witnessed the aforesaid dacoity, only three persons could

individually identify three different objects separately which this Court

finds suspicious to believe in. This Court in the light of facts and

circumstances cannot lend any credibility to the alleged allegations

regarding dacoity.

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10. The third circumstance which we need to concentrate concerns

non-reporting of essential facts which were known to the informant in

the FIR. The High Court while appreciating the entire materials on

record has affirmatively concluded that PW-1, 2, 3, 4, 8, 10 & 12

belong to the same family of the deceased and reside in the same

house. It may be of some significance to note that PW-9 (the

informant) of this case is the nephew of deceased who lives in an

adjacent house to that of the deceased. In the FIR, PW-9 has failed to

mention the name of PW-1, is a significant person as per the

prosecution as he had allegedly identified the accused-Nand Kishore

Singh and Maheshwar Singh, who were the dacoits responsible for the

aforesaid crime. It has come out from the cross-examination of PW-9

that he was aware of presence of PW-1 during the incident but he

failed to mention his name in the FIR. Such non-mentioning of

presence of PW-1, who was a material witness in this case, creates

further suspicion on the hypothesis portrayed by the prosecution. The

High Court on appreciation of detailed evidence has for the right

reasons concluded that the informant (PW-9) was aware of the names

of dacoits who had killed the deceased but failed to name them in the

FIR. In this context we may note that the incident is alleged to have

taken place in the intervening night of 21 st-22nd April, 1999, whereas

the FIR came to be registered at 3.15 a.m., after a lapse of 3 hours.

Despite sufficient time for the informant to gather necessary 9

information, which he did, the names of two accused respondents

have conspicuously been missing, which also formed an additional

factor for the High Court to acquit accused respondents. Although we

accept that FIR need not be an encyclopedia of the crime, but absence

of certain essential facts, which were conspicuously missing in the

present FIR, point towards suspicion that the crime itself may be

staged.

11. Further it is also relevant to note that the names of the

respondents were very well known to the family of the first informant

as well as the family of the deceased. It has also come on record that

there was animosity between these two accused and the family of the

deceased in respect to certain matters. In this context, learned amicus

curiae may be justified in arguing that there is every likelihood that

the accused might have been falsely implicated.

12. The last aspect which we need to concern ourselves is the scope

of the appellate jurisdiction in this case when High Court has

acquitted the concerned accused respondents. It is well settled that

the appellate courts cannot upset an order of acquittal in a casual

manner when there are two possibilities of view which can be taken

from the evidences on record. On an entire perusal of the testimonies

of the witnesses and other evidences on record, we find that the High

Court has reasonably taken its view as the prosecution was not able to 10

explain and prove certain missing links in the alleged offence of

dacoity. In the light of facts and circumstances of the case it is not

appropriate or proper to convert an order of acquittal into conviction,

even though the trial court on an erroneous basis had convicted the

respondents accused to death penalty.

13. The judgment and order of acquittal does not deserve

interference inasmuch as the view taken by the High Court while

acquitting the accused can be said to be a possible view under the

facts of the case. On the other hand, having regard to the material on

record, we are of the opinion that the High Court has taken the only

view which is possible in the facts and circumstances of the case.

14. We also do not find any justification to reverse the finding given

by the High Court relating to juvenility of Mintu Kumar @ Mintu

Singh. On facts, on re-appreciation of the material on record, the

High Court concluded that Mintu Kumar @ Mintu Singh was less than

18 years of age. The record reveals that he was directed to be

examined by a Medical Board by the High Court during the course of

hearing. The report of the Medical Board discloses that he was 20-22

years of age as on 22.04.2006. This conclusion arrived at by the

Medical Board was based on radiological findings. The date of

occurrence was 22.04.1999, which means that Mintu Kumar @ Mintu

Singh was below 18 years of age as on the date of incident. There is 11

no contrary material on record for taking different view that has been

expressed by the Medical Board which is consisted of three doctors

including Civil Surgeon-cum-Chief Medical Officer, Muzaffarpur.

Hence, the appeal questioning the order holding that Mintu Kumar @

Mintu Singh was a juvenile is also liable to be dismissed and is

accordingly dismissed.

15. Since, we find that the High Court has appreciated every aspect

of the matter on facts and has considered the entire material on record

while acquitting the accused and since we do not have any material to

disagree with the reasons assigned and the conclusion arrived at by

the High Court, we decline to interfere with the impugned judgment

and accordingly the appeals fail and stand dismissed.

..........................................J. (N.V. Ramana)

............................................J. (Mohan M. Shantanagoudar) New Delhi August 03, 2018