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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA       CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 94-97 OF 2013

AMAR NATH JHA ....Appellants

Versus

NAND KISHORE SINGH & ETC.   .....Respondents

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

The judgment and order dated 11.1.2008 passed by the High

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

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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

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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

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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

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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

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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 21st-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

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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

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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

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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