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 Dated, the 23rd September, 2011 NAFR Chandran (Shyam Kishore Sharma, J.) (Vikash Jain, J.)