Baban Rai and Others vs The State of Bihar

Rekha Kumari, J.—This appeal is directed against the judgment of conviction and sentence dated 21.1.1988 passed by Sri Nawal Kishore Singh, 8th Additional Sessions Judge, Sasaram in Sessions Trial No. 198 of 1980/26 of 1982 by which he has convicted all the appellants u/s 302/34 of the Indian Penal Code and sentenced them to undergo imprisonment for life. The prosecution case, as disclosed from the written report (Ext. 1) filed by the informant Shatrughan Sharma, the then Sub-Inspector of Police, Kargahar Police Station, district Rohtas is that on 26.4.1976 the informant alongwith constables Shatrughan Singh, Nand Gopal Singh, Ram Narain Chaudhary and Rajgrih Pandit had gone to village Pipri for investigation of Kargahar P.S. Case No. 11(4)76 under sections 461 and 380 of the Indian Penal Code and for night patrolling. During the course of investigation they stayed at the door of one Ram Lakshman Rai. The door of the house of Ram Lakshman Rai faced north and there was open space in front of it, which was fenced on east and north with wall about 6 ft. high. There were two open doors in the northern wall. The informant and other members of the police party were sitting in the south east portion of the Sahan (open space). At about 11.00 P.M. they were planning to go out for patrolling. Constable No. 831 Rajgrih Pandit (deceased) was doing the guard duty. At about 11.30 P.M. one man peeped through the north west door of the wall. Constable Rajgrih Pandit challenged him and twice and thrice asked as to who he was, when a shot was fired from northern side, which hit Rajgrih Pandit in his abdomen and hand, Rajgrih in reply also fired one round. Then again the miscreants fired a shot which hit Rajgrih Pandit and he fell down. In the meantime, the informant and other constables, for their safety, took lying position and he ordered to fire and the constables fired eight rounds and by that time the miscreants fled westward. It is also said that two miscreants were seen sitting on the roof of one Radhey Sao. They also fled towards west. The informant and the police constables had seen the two miscreants. It is further alleged that after firing and counter firing when they came out to chase the miscreants, Ram Ekbal Rai of the village, fired on them with his gun and when the informant disclosed his identity, he stopped firing and they returned to the Sahan of Ram Lakshman Rai and could not follow the miscreants. The informant and the other members of his party then were taking the injured to the police station, but on the way he died.

The informant then filed the written report to the Officer-in-charge of Kargahar Police Station, on the basis of which the case was registered. The police after investigation, submitted charge-sheet against the appellants and one Shri Ram Lohar who died during the course of trial.

The appellants were charged u/s 302/34 of the Indian Penal Code. They pleaded not guilty and claimed to be innocent.

At trial, the prosecution examined eleven witnesses. Out of them P.W. 1 Shatrughan Sharma is the informant, P.W. 2 Syed Zakiul Haque Akhtar is a part I.O., P.W. 3 Dr. Sharda Prasad Singh is the doctor who has conducted the post mortem examination on the dead body of the deceased, P.W. 4 Nand Gopal Singh, P.W. 5 Ram Nath Chaudhary are the constables who had accompanied the informant, P.W. 6 Mahendra Narayan Singh, P.W. 9 Ishwari Prasad, P.W. 11 Bidya Sagar Prasad were the Judicial Magistrates, who had conducted the T.I. Parades of the appellants, P.W. 10 Parmeshwar Dayal was the Of-ficer-in-charge of Kargahar P.S. who was the I.O. of the case who had prepared the inquest report (Ext. 6) of the deceased, recorded the statements of the witnesses and inspected the place of occurrence, P.W. 7 Ram Prasad Singh is a formal witness and has proved the T.I. Parade chart (Ext. 4/1) written by Bidya Sagar Prasad (P.W. 11). P.W. 8 Kulbans Singh is also a formal witness and has proved the endorsement (Ext. 5) on the written report of the informant.

The learned trial court after considering the evidence of the witnesses convicted the appellants and sentenced them as mentioned above.

Learned counsel for the appellants submitted that there is no cogent evidence on record to prove that the appellants were among the miscreants who had fired on the deceased. No sanctity can be attached to the Test Identification Parades which were conducted long after arrest of the appellants.

In order to appreciate the argument of the learned counsel for the appellants, I have gone through their evidence.

P.W. 3 the doctor has deposed that on 27.4.1976 he held the post mortem examination on the dead body of Rajgrih Pandit, Constable No. 831 (deceased of this case) and found the following ante mortem injuries on his dead body:-

(i) One wound of entry in front of lower part of left fore-arm size 1/2" x 1/2" x muscle x wound of exit (size 1" x 1/2") on the back of wrist at the lower end of left radius. The lower end of left radius was found fractured;

(ii) Two wounds of the entry size of each 1/2" x 1/4" on back of left forearm 2" below elbow x soft tissues x wound of exit (size 1 1/2" x 1") on the back left forearm on the middle of left ulna;

(iii) One wound of entry of 1/6" diameter on the dorsum of penis x the muscles of penis x scrotum. One flatten pillet was recovered from the penoserotal junction;

(iv) One wound of entry of 1/4" diameter at the lower end of right side of back x the muscles of the back. One flatten pillet was recovered embedded in the muscles of back 2 1/2" above the right iliac crest;

(v) Two wounds of entry of 1/2" diameter each in left hypo chondrium (left upper quadrant of abdominal wall) x muscles of the abdomen x stomach x mesentry x pelvic colon (large intestine.). One pillet was recovered from the lumen of pelvic colon. The abdominal cavity contained about 2500 C.C. of blood.

(vi) Two wounds of the entry of 1/ 4" diameter each on the left waist line x soft tissues and muscles x 2 wounds of exit on back of 2/3" diameter each immediately above left iliac crest;

(vii) One wound of entry 1/3" diameter of left side of back below the 12th rib x soft tissues and muscles x wound of exit of 1" diameter in front of lower end of left side of chest wall.

He has opined that the death was due to haemorrhage and shock caused by the above noted injuries which were caused by firearm. He has further opined that the time elapsed between the death and the post mortem examination was within 24 hours.

Thus, from the evidence of the doctor it is clear that the death of the deceased was homicidal and caused by firearm injuries and the death took place on 26.4.1976.

I shall next discuss as to whether the murder took place in the manner as alleged by the prosecution.

P.W. 1 Shatrughan Sharma, the informant has stated that on 26.4.1976 while he was posted at Kargahar Police Station, he alongwith armed forces went to village Pipri in connection with the investigation of Kargahar P.S. Case No. 11(4)76. During the course of investigation in the night they stayed in the house of Ram Lakshman Rai of that village and at about 11.30 P.M. they were sitting in the Sahan of Ram Lakshman Rai and were planning to go for night patrolling. Rajgrih Pandit, at that time, was on guard duty there. There was a wall on the north side of the Sahan in which there were two doors for coming to the house through the lane. Both the doors were open. At that time two persons armed with gun peeped through the western door of the wall. The deceased challenged them twice and one of them fired on Rajgrih Pandit (deceased). The deceased in reply also fired on them, when another shot was fired on the deceased. The deceased received injuries from both the firings. His evidence further is that they then went out to follow the miscreants when one Ram Ekbal Rai of the village fired on them. They (police party) disclosed that they were police men and Ram Ekbal Rai stopped firing. They did not chase the above two miscreants thereafter. He has further stated that when Rajgrih Pandit was shot at, two miscreants were also seen on the roof of one Ragho Sao. They also fled toward west. His evidence further is that in the same night they were taking injured Rajgrih Pandit on cot when on the way he died.

P.Ws. 4 & 5 have also corroborated the evidence of P.W. 1 and have deposed in the same line as P.W. 1. According to P.W. 4 he was posted at Kargahar Police Station in the Reserved guard and had accompanied the informant and according to P.W. 5 he was posted on the date of occurrence at Kargahar Police Station as Special Guard and had gone to the P.O. village with the informant.

P.W. 10 has stated that on 26.4.1976 he was posted as Officer-in-charge of Kargahar Police Station and on that date at 2.00 in the night he instituted the case on the basis of the written report of S.I. Shatrughan Sharma (P.W. 1) and prepared the inquest report (Ext. 6) of the dead body of constable 831 Rajgrih Pandit, and after recording the statements of the witnesses, reached the place of occurrence at 3.15 A.M. He has further stated that the P.O. was the open sahan land of the house of Ram Lakshman Rai of village Pipri. The Sahan was fenced on east and north with 6 ft. high wall. There were two doors without any door plank on the northern side. He has further stated that he found two pellets in the northern wall of the house and seized them. He has also stated that there was a lane north of the Sahan and there were houses on both sides of the lane and he found the tiles of the roof of Ragho Sao broken. He has also stated that the door of the wall was visible from the place where the deceased had received injuries. He has further stated that on 14.3.1978 he handed over the case to S.I. Rama Shankar Singh, for further investigation. In cross-examination he has stated that the Sahan was surrounded by walls on all four sides and there were two doors in the northern wall.

Thus, from the evidence of the above witnesses, it is also clear that Constable No. 831 Rajgrih Pandit received firearm injuries on the alleged night and at alleged place in the manner as alleged as a result of which he died.

The most important question in this case, however, is whether the appellants took part in the above murder.

In this connection from the evidence of the eye witnesses i.e. the informant and the two constables examined, it appears that the appellants were not known to them from before. The appellants, hence, were put on test identification parade.

The evidence of P.W. 6 is that on 26.6.1976 he had conducted the test identification parade of suspect Baban Rai in Sasaram Jail, and constable Nand Gopal Singh (P.W. 4) and constable Ram Nath Choudhary (P.W. 5) had identified him. P.W. 9 has deposed that on 26.8.1978 he had conducted the test identification parade of appellant Lallan Rai and Dadan Kahar in court room and S.I. Shatrughan Sharma (P.W. 1) had identified Lallan Rai as the miscreant who had come to the place of occurrence with gun. P.W. 11 has stated that on 1.9.1978 he had conducted the test identification parade of the suspects Dhanuk Rai, Jag Lal Ram, Chhotu Ram, Mallu Mian, Shri Ram Lohar, Babuli Kahar, Narain Kahar, Lallan Ram, Ram Ekbal Ram, Badan Kahar and Dadan Kahar in the verandah of the civil courts and witness Shatrughan Sharma (P.W. 1) had identified Shri Ram Lohar (since dead) and Narain Kahar and witness Nand Gopal Singh (P.W. 4) had identified Babuli Kahar, Jaglal Ram, Lallan Rai and Mallu Mian and witness Ram Nath Chaudhary (P.W. 5) had identified Babuli Kahar, Lallan Rai and Narain Kahar.

P.W. 1 has stated that in the test identification parade on two dates he had identified three miscreants and in court he identified appellants Lallan Rai and Narain Kahar as the persons whom he identified in the test identification parades.

P.W. 4 has also stated that he had attended the test identification parade on two dates and he had identified Baban Rai in Sasaram Jail and Babuli Kahar and Narain Kahar in front of the court room of the Sub-divisional Officer. He has identified these three appellants in Court also. He has further stated that he had identified Lallan Rai, Mallu Mian and Jaglal Ram also in the T.l. Parade and in court he had identified Baban Rai and had claimed to identify Jag Lal Ram and Mallu Mian who were not physically present in court on that date.

P.W. 5 has stated that he had attended the test identification parade on two dates and had identified 5-6 persons. In court he had identified Baban Rai and by seeing the other six accused persons, present in court, he stated that he had identified them also.

Now, though according to the above evidence P.Ws. 4 and 5 had identified appellant Baban Rai in test identification parade held in Sasaram Jail and they have identified him in court also, P.W. 4 in his evidence has stated in clear words that this appellant after arrest was brought to Kargahar police station and at that time he came to know that he was Babban Rai. Thereafter he had gone to identify him in -T.l. Parade. Hence, it is clear that this appellant was shown to the witness before the test identification parade was held. So, no sanctity can be attached to the identification of the appellant by this witness in the T.l. Parade.

As regards P.W. 5, he has stated that he had seen Baban Rai fleeing towards west and that he had identified him in the light of the torch and lamp and that the appellant was at a distance of 10-15 yards from him. Though he claims to have identified the appellant while fleeing, his evidence further shows that he was, at that time, inside the compound and the compound was encircled on all sides with waist high wall and he was in lying position and the firing was being done from the western side from the roof of Laldhari Rai and that when the appellant was fleeing, there were other culprits ahead and behind him.

The record of the committing court shows that this appellant Baban Rai was produced in court after arrest on 6.5.1976 and the evidence of P.W. 6 shows that he was put on T.l. Parade on 25.6.1976 i.e. after more than one and a half months. In assessing the value of the T.l. Parades, one of the vital factors is whether the test identification parade was held within a reasonable time after the accused''s arrest and if not so whether there was convincing explanation from the prosecution for delay in conducting the T.I.Parade but in this case no explanation has been given by the prosecution for the delay in holding the T.I. Parade. Besides this, the evidence of this witness shows that he had heard that this appellant was brought to the police station after arrest. He was posted in the police station on the date of occurrence and there is nothing to show that he was transferred from the police station on the date the appellant Baban Rai was arrested. The appellant was also produced in court on 10.5.1976 before the T.I. Parade was held. Therefore, the possibility cannot be ruled out that he had also seen appellant Baban Rai before the T.I. Parade. His identification in the T.I. Parade, hence, also appear to be meaningless.

The learned A.P.P. appearing on behalf of the State has argued that identification in court is the substantive evidence and conviction can be based on the identification of the appellant in court without there being any identification in the test identification parade.

Though the evidence in court is a substantive evidence, as held by the Supreme Court in the case of State of Himachal Pradesh Vs. Lekh Raj and Another, , identification of an accused for the first time at trial is a weak evidence. It has further been held therein that though T.I. Parade is not a substantive evidence but holding of T.I. Parade is a safe rule of prudence and can be used for corroboration purpose.

So, without proper identification of the appellant in the T.I. Parade only on the basis of identification in court, it would not be safe to hold that actually the appellant took part in the above murder. It may also be mentioned here that even if it be assumed that P.W. 5 did not see the appellant before the T.I. Parade and he had identified him in T.I. Parade and in court, only on the basis of the evidence of a solitary witness it would not be safe to hold that appellant Baban Rai had taken part in the murder specially when the circumstances mentioned above, show that it is doubtful that this witness (P.W. 5) could actually identify the appellant Baban Rai.

As regards appellant Lallan Rai, it appears that Shatrughan Sharma (P.W. 1) had identified him in the T.I. Parade on 26.8.1978 and P.Ws. 4 and 5 had identified him in the T.I. Parade on 1.9.1978. P.Ws. 1, 4 and 5 have also identified him in court at the time of their evidence.

P.W. 1 has stated that he had seen both the miscreants who had fired on the deceased and in the T.I. Parade he had identified one of them and by identifying the appellant Lallan Rai in court, he has stated that he was the same person. P.W. 4 has stated that when he had seen the appellant Lallan Rai he was outside the compound in the western side and he had seen him fleeing. He has further stated that the night was moonlit and he had seen the appellant in the light of torch and lamp. P.W. 5 has stated that he had seen the appellant fleeing and at the time of identifying him he was in the lying position and the appellant was at the same distance from him as Babban Rai.

Though the above witnesses have claimed to have identified this appellant Lallan Rai in T.I. Parade and in court, the record shows that he was arrested on 6.5.1976 and was released on bail on 5.7.1976. But though appellant Baban Rai was put on T.I. Parade on 25.6.1976 he was not put on T.I. Parade on that date and no explanation has been given as to why he was not put on T.I. Parade on that date or till he was in custody. Then, the T.I. Parade in which Shatrughan Sharma (P.W. 1) had identified this appellant was held after more than three years on 26.8.1978 and the T.I. Parade in which P.Ws. 4 and 5 had identified this appellant had taken place even after that i.e. on 1.9,1978, and no cogent explanation has been furnished by the prosecution for the long delay in holding the T.I. parades. The evidence of P.W. 1 shows that he was posted in Sasaram court as court S.I. from before the date on which the T.I. Parade was held. The record shows that 26.8.1978 was the date fixed in the case and this appellant had appeared in court and thereafter the prayer was made for holding T.I. parade. The record further shows that even prior to that on some dates the appellant was personally present in court. Therefore, this witness (P.W 1) had opportunity to see the appellant Lalan Rai prior to his identification in T.I. parade. A petition was also filed on 28.8.1978 that the appellant Lalan Rai was shown to the witness before the T.I. parade. As regards the T.I. Parade held on 1.9.1978 it also appears that that was also a date fixed in the case, and after this appellant filed attendance in court, the Magistrate was deputed to hold T.I. parade. As already mentioned, the appellant attended the court even prior to 8.9.1978. Therefore, there was opportunity for this witness also to identify this appellant before the T.I. Parade.

Hence, the identification of this appellant in the T.I. Parades is meaningless.

As regards the identification of the appellant in court, the evidence of P.W. 1 shows that he had seen him when he was peeping through the door. He had, therefore, a fleeting glimpse of the appellant. As regards P.Ws. 4 and 5, they claimed to have seen the appellant fleeing. It is, therefore, doubtful that they had seen the face of appellant. P.W. 1 was examined in court on 16.10.1982 and P.Ws. 4 and 5 were examined on 6.10.1983. The witnesses, thus, were examined after more than six years. Hence, it is difficult to hold that they could identify the appellant after such a long time specially when they got very short duration to see the appellant. So, on the basis of the identification of the appellant in court only it cannot be held that actually he had participated in the murder.

Regarding other appellants, the record shows that appellant Babuli Kahar was remanded in this case on 2.6.1976 and was released on bail on 4.10.1976 but curiously enough he was not put on T.I. Parade held on 25.6.1976. This appellant and other appellants were put on T.I. Parade on 1.9.1978, when appellants Mallu Mian and Jaglal Ram had surrendered and granted bail on 19.1.1977 and appellant Narayan Kahar was granted anticipatory bail on 10.12.1976. I have already mentioned that the T.I. Parade was held on the date fixed in the case and after the attendance of these appellants also, the Magistrate was deputed for holding the T.I. parade. The identifying witness/witnesses, therefore, had opportunity to see these appellants before the T.I. Parade was held. As the appellants were on bail, the witnesses had opportunity to see them earlier on the dates fixed in the case. The identification of these appellants in T.I. parade, hence, is meaningless. The evidence of P.W. 1 also shows that on the firing on the deceased all of them took the lying position to save them and that they could not chase the miscreants. It is thus, evident that the witnesses could not have a clear view of the miscreants. So, only on the basis of the identification of these appellants in court, after so many years, it is difficult to accept the identification and hold the appellants responsible for the murder of the deceased.

Thus, having given a careful consideration to the facts, evidence, circumstances and the submissions made by the learned counsel for the parties, I am clearly of the opinion that the prosecution has not succeeded in establishing its case against the appellants beyond reasonable doubt. Therefore, the findings and order of the learned trial court in holding the appellants guilty and convicting them, as mentioned above, is not justified.

In the result, this appeal is allowed. The impugned order of conviction and sentence passed by the learned court below is set aside and the appellants are acquitted. They are discharged from the liabilities of their bail bonds. Before parting with the records of the case, I would like to put on record my deep unhappiness over the way the police investigation was made in this case. These days investigations of even serious criminal cases are shoddy and clumsy. Cases in which this Court comes across a thorough and completely satisfactory police investigations are becoming rarer. But the way the police investigation in this case was made shows either a total and callous disregard or a complete lack of knowledge of the legal procedure and the provisions of the Police Manual and other relevant rules. Appellants 2-5 remained in jail for several weeks before they were released on bail but no steps were taken to put them on T.I. Parade while they were in custody in jail. Steps were taken to put them on T.I. Parade long after they were released on bail. Appellant No. 6 was similarly put on T.I. Parade after he was granted anticipatory bail by the Court. Even then T.I. parades were held on different dates fixed in the case when the appellants would come to the court openly and without concealing their identity as they were obliged to do in terms of the bail order. The T.I. Parade was held in court room or in the verandah of the court building, both being practically open public places. The I.O. and the superior police officers should have known better than to follow such a farcical way. That would only lead to the throwing away of the result of the test identification. The Superintendent of Police, Rohtas is directed to look into the matter so that such gross and basic errors in the investigation of a case may not be repeated in future.

Aftab Alam, J.

I agree.