CRIMINAL APPEAL No.329 OF 2004 ******* Against the judgment and order of Sri Krishan Mohan Srivastava, Sessions Judge, Rohtas, Sasaram, dated 07th April, 2004, passed in Case No. R.C. 4(5)/2002. ******* 1. RUPDEV YADAV 2. BINOD RAJWAR--------------------Appellants Versus 1. THE STATE OF BIHAR 2. UNION OF INDIA, THROUGH C.B.I., NEW DELHI------------Respondents ******* For the Appellants : M/s Surya Narain Pd. Sinha, Nand Kumar, Jitendra Narain Sinha For the CBI : M/s Bipin Kumar Sinha with Sunil Kr. Ravi For the State : Ms. Shashi Bala Verma ******* P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. The two appellants have preferred this appeal against the order dated 07th April, 2004 passed by learned Sessions Judge, Rohtas, Sasaram, in case no.R.C. 4(5) of 2002 arising out of Nauhatta P.S. Case no. 04 of 2002 holding them guilty for the offences 2 under Sections 148, 302, 323, 353 read with Section 149 of the Indian Penal Code, 27 of the Arms Act besides Section 3(2)1 and 22(5) of Prevention of Terrorism Act, 2002 (hereinafter referred to as the Act) and respective sentences awarded rigorous imprisonment for one year, rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default to further undergo imprisonment for one year, rigorous imprisonment for six months, rigorous imprisonment for three years and to pay a fine of Rs.1,000/- each in default to undergo imprisonment for three months, imprisonment for life and to pay a fine or Rs.5,000/- each in default imprisonment for one year and imprisonment for ten years. However, all the sentences are to run concurrently. 2. The prosecution case, as revealed from Exhibit-3, fard-e-bayan of P.W.3, Kumar Narendra, a Range Officer of Forest, recorded by P.W.21, S.I. Ajoy Prasad, at Adhaura P.S. on 15th February, 2002 at 14.00 hours is that in the same morning at about 9.00 A.M. the informant along with Divisional Forest Officer 3 (hereinafter referred to as DFO), Sanjay Singh (deceased), Foresters B.N. Singh (not examined), Ramjivan Pandit (P.W.14), Ram Pravesh Choudhary (P.W.10), Shiv Murat Pandey (P.W.13), Bodyguard Umesh Prasad Singh (P.W.4) and driver of Government Gypsy Mahboob Alam (P.W.9) went to check the road under construction, running from Akberpur to Rehal and when at about 11.00 A.M. the group arrived near Forest Office at Rehal, they found one person in green uniform, heard from some one in the vehicle that perhaps he is „party wala‟. All alighted from the vehicle and started proceeding towards range office but within a short time they realized that he is, in fact, party wala, they tried to come back but were surrounded by five to six armed persons in the similar uniforms and for about forty five minutes all interrogated them by different means and when the group started to escape through their vehicle the men in uniform whistled. Twenty five to thirty persons of their group including four to five female in civil dress arrives, one of them aged forty years having one child and other four were aged about twenty five to 4 thirty years and their commander aged about forty years of a bit dark complex whereas remaining were also aged about twenty five to thirty years, lean and thin, and forced them to come out of the village, tied hands of D.F.O, Sanjay Singh, from behind through a towel, kept him separated from other companions and took the D. F. O ahead. On objection raised by himself and his fellow men they were assaulted by lathi and butt of gun. Ultimately, the companions kept themselves separated. Four to five terrorist forcibly brought the D.F.O in eastern side of the village from Morang road and forced others to maintain silence. Some time thereafter they heard sound of seven firing and a few minutes thereafter four to five terrorist returned, asked about their caste etc. and ultimately on being convinced that they belonged to poor section of people, returned the driver and key of the vehicle and permitted to go. The terrorist left the place raising slogan “M.C.C. Zindabad” and the group anyhow arrived at Adhaura Police Station, apprehends that the D.F.O might have been killed. On the basis of aforesaid fard-e-bayan a formal first information report, 5 Exhibit-10, was recorded by the concerned Police Station i.e. Nauhatta Police Station at 9.00 P.M against unknown. 3. On getting such information the Police and other concerned authorities came into action and near the place of occurrence Police in large number arrived and on search recovered the dead body of deceased from inside the forest. Inquest report, Exhibit- 15, was prepared. Dead body was brought to Rohtas, sent for post mortem examination in the hospital. Investigation was being conducted by P.W.20, Samarendra Kumar Mouwar, but subsequently, considering the gravity of the situation, investigation was handed over to Central Bureau of Investigation where case no. R.C 4(S) of 2002 / SIC-IV New Delhi dated 22nd March, 2002, Exhibit-18, was instituted and investigation was conducted and concluded by P.W.22, Vaibhav Agasiv, charge sheet, Exhibit-28, was submitted against the appellants keeping the investigation against others pending whose case was separated subsequently and trial of the appellants 6 commenced. During such transactions initially the case was pending before the Chief Judicial Magistrate,Sasaram, but for some time it was at Patna Special Court and then again transferred to Sasaram where trial commenced after framing the charges on 14th February, 2003 initially instead of under Section 353 / 149 of the Indian Penal Code charge was framed under Section 352 / 149 but subsequently, vide order dated 24th February, 2004 it was amended. 4. The prosecution, in support of its case, has produced a good number of documentary evidence as Exhibits-1 to 31 and X and X/1. Exhibit-1 Sanction Order Exhibit-2 Post Mortem Report Exhibit-3 Fard-e-bayan Exhibit-4 Signature of P.W.3 on Ex.13 Exhibit-4/1 Signature of P.W.4 on Ex.13 Exhibit-4/2 Signature of P.W.5 on Ex.13 Exhibit-4/3 Signature of P.W.10 on Ex.13 Exhibit-4/4 Signature of P.W.5 on Ex.15 Exhibit-4/5 Signature of P.W.5 on Ex.20 to 4/6 Exhibit-4/7, Signature of P.W.5 on Ex.21 4/8 & 4/9 & 22 Exhibit-4/10 Signature of P.W.5 on Ex24 & 4/11 Exhibit-4/12 Signature of DFO on letter by MCC Exhibit-4/13 Signature of Head Clerk on Envelop Exhibit- 4/14, Signature of P.W.7 on Ex.6 7 4/15 & 4/16 Exhibit-4/17 Signature of P.W.9 on Ex.26 Exhibit-4/18 Signature of P.W.3 on Log Book Exhibit-4/19 Signature of P.W.10 on & 4/20 Ex.24 Exhibit-4/21 Signature of P.W.14 on cloth in which Ex.I to VI were seized Exhibit-4/22, Signature of P.W.14 on 4/23 & 4/24 Ex.21 & 22 Exhibit-4/25 Signature of P.W.15 on & 4/26 Ex.20 Exhibit-4/27 Seizure memo. prepared by P.W.20 regarding seizure of blood stained earth Ex.XI Exhibit-4/28 Signature of P.W.20 on & 4/29 Ex.23 Exhibit-4/30 Signature of P.W.20 on Ex.VII Exhibit-4/31 Signature of P.W.20 on envelop containing blood stained earth Ex.XI Exhibit-4/32 Signature of Sr.S.P. on & 4/33 FIR Ex.18 Exhibit- Signature of P.W.22 4/xxxii on Ex.7 Exhibit-4/34 Signature of P.W.22 on Ex.8 Exhibit-4/35 Signature of P.W.22 on Ex.6 Exhibit-5 Letter no.151 of STF Exhibit-5/1 Letter no.357 of Conservator of forests Exhibit-6 Test Identification Parade Chart (3 copies) Exhibit-7 Application U/S 164 Cr.P.C filed by P.W.22 and endorsement of Metropolitan Magistrate P.W. 12 8 Exhibit-7/1 Order of Metropolitan Magistrate P.W.12 Exhibit-8 Confession of accused Vinod Rajwar Exhibit-9, Reports of CFSL 9/1, 9/2 & 9/3 Exhibit-10 FIR recorded by Bihar Police Exhibit-11 Endorsement of P.W.20 On Ex.3 Exhibit-12 Seizure of Poster Ex.13 Exhibit-13 Poster Exhibit-14 Endorsement of P.W.21 on Ex.3 Exhibit-15 Inquest report Exhibit-16 Seizure memo. of pellet By CBI from Bihar Police Exhibit-17 Seal sample Exhibit-18 FIR recorded by CBI Exhibit-19 Seizure of local Police files and Ex.13 by CBI Exhibit-20 Recovery Memo. prepared by P.W.22 at the spot Exhibit-21 Seizure of Ex.I to VI by CBI Exhibit-22 Sample seal Exhibit-23 Seizure Memo. Exhibit-24 Photo identification Memo. Exhibit-25 Photo identification Memo. Exhibit-26 Seizure Memo. of Log Book Exhibit-27 Site Plan Exhibit-28 Charge sheet Exhibit-29 G.D. Entry of P.S. Rohtas Exhibit-30 G.D. Entry of P.S. Rohtas Exhibit-31 G.D.Entries of P.S.Nauhatta Mark-X Forwarding letter of Sr.S.P to CFSL Mark-X/1 Injury report of P.W.5 Followed by following material exhibits. Exhibit-I Jean Pant 9 Exhibit-II Sweater Exhibit-III T-Shirt Exhibit-IV Leather Belt Exhibit-V Shoes Exhibit-VI Socks Exhibit-VII Bullet Jacket Exhibit-VIII Deformed bullet Exhibit-IX Fired cartridge Exhibit-X Fired cartridge Exhibit-XI Blood stained earth Exhibit-XII Blood stained earth Exhibit-XIII Control sample of earth 5. The prosecution has proved the above exhibits besides other circumstances and its case by examining altogether following twenty four witnesses. P.W. 1 Birendra Kumar Gupta P.W.2 Dr. Kanhai Mahto P.W.3 Kumar Narendra P.W.4 Umesh Pd. Singh P.W.5 Prithwinath singh P.W.6 Shashi Kumar P.W.7 Deep Nr. Mandal, P.W.8 Sanjay Kumar P.W.9 Mahboob Alam P.W.10 Ram Pravesh Chy. P.W.11 Ajoy Kr. Singh P.W.12 Gulshan Kumar P.W.13 Shiv Murat Pandey P.W.14 Ramjiwan Pandit P.W.15 Sri N.B. Bardhan P.W.16 D.S. Chakoutra P.W.17 O.S. Srivastava P.W.18 Doman Yadav P.W.19 Ram Krit Oraon P.W.20 Samrendra Kr. Mouar P.W.21 Ajoy Prasad P.W.22 Vaibhav Agasi P.W.23 Ram Pukar Singh P.W.24 Sant Vilash Singh 10 Out of whom only P.W.1, P.W.23 and P.W.24 are purely formal witnesses who have proved respectively Exhibits 1, 29, 30 and 31 and P.Ws3, 4, 9. 10, 11, 13, 14, 18 and 19 are the witnesses of the occurrence. P.W.7, Deep Nr. Mandal, Jailor, P.W.8, Sanjay Kumar, Judicial Magistrate, are the persons on test identification parade wherein P.W.4, Umesh Prasad Singh, has participated and identified by the appellants and P.W.12, Gulshan Kumar, is a Metropolitan Magistrate at Delhi who recorded statement of appellant no.2, Vinod Rajwar under section 164 of the Code of Criminal Procedure (Exhibit-8). P.Ws 15. 16 and 17 are the officials of Forensic Science Laboratory. P.W.2, Dr. Kanhai Mahto, has conducted post mortem examination and proved Exhibit-2. 6. While assailing the findings of the trial court, learned counsel for the appellants submitted that there was delay in conducting test identification parade as the appellants were in custody right from 12th April, 2002 whereas test identification parade was held on 01st 11 October, 2002, even the confessional statement of appellant no.2, Vinod Rajwar, was recorded without observing the legal requirements. There is no legal evidence at all against either of the appellants specially against appellant no.1, against whom the said confessional statement, Exhibit-8, also cannot be used. There was further delay in transmission of first information report to the court where it was received on 18th February, 2002. The witnesses coming in court to identify appellant no.2, Vinod Rajwar, did not participate in test identification parade and there is no explanation that they have further been shown by albums and photographs on the basis whereof they claim to identify the only appellant no.2, their evidence cannot be said legal one to hold the appellants guilty. 7. Learned special Public Prosecutor, representing C.B.I, while supporting the findings, submitted that all legal requirements have been observed; witnesses have supported the prosecution version and trial court has, by a detailed reasoned order, held them guilty, no prejudice was caused to the 12 appellants neither their photograph was shown or even earlier, all precautions have been taken in recording confession statement of appellant no.2, who, even at the time of explaining the charge, confessed his guilt so the appeal may be dismissed. 8. Now, on the basis of materials available and on consideration of rival contention it is to be determined in this appeal whether prosecution has been able to substantiate the charges against the appellants beyond any shadow of reasonable doubt or findings of the court below needs interference. 9. Kumar Narendra, P.W.3, in his statement, has said that on relevant date, that is on 15th February, 2002, he along with his D.F.O., Sanjay Singh, deceased, and other companions, after spending previous night at forest rest house of Rohtas range, about 9.30 A.M. on 15th February, 2002, proceeded for Taradi Dhansa to inspect forest road. In the group P.W.5, Prithwinath Singh, P.W.14, Ramjivan Pandit, P.W.10, Ram Pravesh Choudhary, P.W.13, Shiv Murat Pandey, body guard of the deceased, and P.W.4, Umesh 13 Prasad Singh, were on the Gypsy jeep being driven by Mahboob Alam, P.W.9, and when they arrived at about 11.30 A.M. near village Rehal, where there were quarters of Forest employees, out of the group P.W. 14, Ramjivan Pandit, informed about presence of party wala (members of Maoist Communist Centre) around office and quarters. The group alighted from the vehicle near range office, found one poster, Exhibit-13, being pasted with the wall and another armed extremist was running behind the office. One, who was pasting the poster, Exhibit-13, enquired from them the identity which was disclosed with further assertion that they have come to see the work of forest office. Meanwhile, the driver had turned the vehicle for return but the moment the guard tried to go back they were stopped by the extremist pasting poster in the garb of having some talk and did not permit them to proceed. Meanwhile, fifteen to twenty persons of same group with arms arrived and forced them to surrender, enquired and verified about any weapons with them. Further enquiry was made from the deceased about his caste etc. and 14 subsequently a verbal complaint was lodged about non- contribution towards party fund from the expenditures for road under construction. The deceased expressed his inability to divest any amount as per their wishes. Demand of Rs.5 lacs was made but the deceased was not agreeable to pay even a single penny. Meanwhile, villagers, including P.W.11, arrived, started requesting the extremists to spare the District Forest Officer and his fellow men. They were forced to go ahead to have talk. Soon thereafter villagers also arrived at the place ultimately by firing in air the villagers were forced to disperse and the group was forced to proceed further. When protested hands of the deceased were tied from behind and the extremist took him towards forest site leaving the rest under control of other members of their group. Soon thereafter they could heard sound of firing and some extremist returned. On some enquiry permitted the group to go back even key of the vehicle was also provided. Slogan of M.C.C. Zindabad was raised and, ultimately, the group could be able to arrive at Adhaura Police Station where fard-e-bayan, Exhibit- 15 3, was recorded and with the help of Officer-in-charge, P.W.21, the informant could be able to talk with the Superintendent of Police and other authorities of the Forest Department. The informant and his group returned with Police force, arrived at about 5.00 P.M., on search dead body of the deceased could be located, inquest report was prepared. The poster, which was being pasted at the wall was also taken out by the Police, seizure list was prepared whereupon witnesses, including this witness put their signatures, marked Exhibits-4 to 4/3. Dead body was brought to Rohtas Police Station from where sent to Sadar Hospital, Sasaram for autopsy. In reply to the court question this witness could not be able to identify the appellants in court. 10. Almost similar is the statement of P.W.13, Shiv Murat Pandey, one of the companion of the decedased and informant, who also has narrated about the incident etc. but could not identify either of the two appellants in court. P.W.11, Ajoy Kumar Singh, P.W.18, Doman Yadav and P.W.19, Ramkrit Oraon, are 16 the three villagers examined on behalf of the prosecution. Out of them, P.W.11 has said that on hearing some sound he came out of his house, found some armed persons querying from District Forest Officer about some work, demanding money which was refused by the deceased, who was subsequently forced to go with them. The witness and another villagers requested the extremists to spare them but could not succeed rather forced to return. The extremists carried D.F.O and his companions towards forest side. Some time thereafter he heard sound of firing whereas P.W.18 goes to say almost same thing but also stated that to disperse the villagers the extremists fired in sky. Similar is the statement of P.W.19, Ramkrit Oraon. But, none of these three witnesses, like informant, P.W.3, claimed to identify the appellants or other extremists. The learned counsel for the appellants also could not point out anything otherwise from the statements of these witnesses. 11. P.W.5, Prithwinath Singh, one of the companion of deceased, Sanjay Singh, informant 17 P.W.3, and P.W.11, like P.W.9, Mahboob Alam, the driver of the vehicle, P.W.10, Ram Pravesh Choudhary and P.W.14, Ramjivan Pandit, the forst guards, have also stated the happenings of the day in almost similar way but not parrot like rather with natural variations and claimed to identify in court out of the two appellants, Vinod Rajwar, appellant no.2, as one of the members of the extremist, participated in the occurrence. P.W.5, in his cross-examination, paragraph 43, on the point of identification, is specific that he had not seen the appellant no.2 prior to occurrence or even thereafter but only earlier on the day of his arrest he could be able to see him and thereafter only in Court whereas P.W.9, in paragraph 15, has stated that except during occurrence he did not see appellant no.2 either earlier or subsequently. Similarly, P.W.10, in cross-examination paragraph 13, and P.W.14, in cross-examination, paragraph 8, have said that neither they could see the appellant no.2 prior to occurrence or subsequently prior to their instant deposition in court. P.W.14 in paragraph 5 is specific that appellant no.2 is the person who was 18 one amongst others taking away the deceased. 12. Umesh Prasad singh, P.W.4, body guard of deceased, is the only witness of the occurrence who has stated almost same thing what his other companions have said but added only that he too was armless as directed by the deceased on the ground of presence of small pistol may not be able to provide any security either to him or to the witness but its appearance alone may cause their death. He further participated in test identification parade, conducted on 01st October, 2002 in Sasaram Jail under supervision of P.W.8, Sanjay Kumar, Judicial Magistrate, assisted by P.W.7, Deep Naraian Mandal, Assistant Jailor, wherein this witness, P.W.4, could identify them before the court and is specific that the two appellants participated in the occurrence with arms and kept them confined. Deep Narain Mandal, P.W.7, has corroborated statement of this witness about his participation in test identification parade, proved his own signatures, Exhibits-4/14 to 4/16, and test identification parade prepared in triplicate. Likewise, Sanjay Kumar, P.W.8, 19 Judicial Magistrate, conducted the test identification parade, proved the test identification parade chart, Exhibit-6. 13. Learned counsel, representing the appellants, on the point of test identification parade, submitted that the persons put for identification were not similar to each other and legal requirements were not fulfilled but nowhere from the statement of these three witnesses any material irregularity / illegality could be pointed out. It was further argued that there was delay in holding test identification parade. In this regard it is pointed out that appellant no.1 was in custody since 06th June, 2002 and appellant no.2 since 19th April, 2002 but test identification parade could be held on 01st October, 2002. True it is that apparently there is some delay but it is well explained from the records, initially Nauhatta P.S. Case no. 04 of 2002 was instituted on the fard-e- bayan of P.W.3, first information report etc. could be placed in the court of Chief Judicial Magistrate, Sasaram on 18th February, 2002 from where at the request of prosecution several requests were issued against 20 different persons. Appellant no.2, Vinod Rajwar, who was in custody in connection with Rohtas P.S. Case no. 25 of 2002, as prayed by prosecution, remanded in this case on 22nd April, 2002 and since in the case, wherein he was in custody earlier, his face was covered. It was specifically directed to keep him in same way. Similar direction was renewed on subsequent date that is 04th May, 2002 on his production. Soon thereafter the case was transferred to the court of C.B.I. Patna, where already R.C. Case no.4(5) of 2002 had already been instituted on 01st April, 2002 since C.B.I. had undertaken investigation, the record was received and here also appears from the order sheet that accused was kept under covered face as it is and matter was further kept pending awaiting special authorization of the Presiding Officer to conduct C.B.I. cases from this court (High Court). Meanwhile, on 04th June, 2002 appellant no.1 was also remanded in this case and by the time the Presiding Officer could be authorized the case itself was ordered to be transferred to the court of Sessions Judge, Sasaram, where the record was received on transfer on 21 22nd August, 2002 where prayer was made on 27th September, 2002 for holding test identification parade which was done on 01st October, 2002 and the test identification chart, Exhibit-6, was submitted immediately. 14. The above facts are sufficient to indicate that time was consumed due to some jurisdictional lacking and the moment such problem was set at rest the prosecution took steps for test identification parade without causing any further dealy. 15. It is also argued that there is no explanation as to why only P.W.4 participated in test identification parade but other witnesses claimed witnessing the occurrence or identifying the appellant no.2 in court did not participate in such test identification parade. It is true that other witnesses did not participate in test identification parade. But, in the instant case it is also to be considered that the person who participated in test identification parade, P.W.4, whose identity also to be kept concealed by the orders of the court, taking into considerations the provision of 22 Prevention of Terrorist Activity and gravity of the situation. P.W.4 is a Police Personnel living in some sort of security whereas other persons are none-else than the employees of Forest Department were to remain there and it was difficult to conceal their identity if they had to participate in test identification parade. So if the witnesses, other than P.W.4, did not participate in test identification parade no prejudice is caused to the appellants. 16. The decision of the Apex Court in Antar Singh V. State of Madhya Pradesh; A.I.R. 1979 S.C.=1979 Cr.L.J. 715, wherein test identification parade was held after twelve months of the occurrence, is not applicable in the instant case. Similarly, another decision of the Apex Court in Shabad Pulla Reddy and another V. State of Andhra Pradesh; A.I. R. 1997 S.C. 3087, wherein test identification parade was held after some delay but without any convincing explanation is also not available to the appellants here in face of the explanation afore-mentioned. Similar is the position of the decision of the Aapex Court in Nirmal Pasi and 23 Others V. State of Bihar; 2003 (1) S.B.R. 670, wherein also test identification was held after one month and ten days of arrest of accused without any explanation. 17. Learned counsel for the appellants placed further reliance upon the decision of the Apex Court in Vijayan @ Ranjan V. State of Kerala with K.S. Sadanandan V. State of Kerala; 1999 Cr.L.J 1638, but in the aforesaid case at was evident from the evidence on record that photograph of the accused was published in all local newspapers and were shown to the witnesses before test identification parade. On that basis their testimony was held not reliable but it is also not available in the instant case. The learned counsel could not be able to point out from any material on record to show that photographs of either of the two appellants were ever shown to any witness or photograph was ever taken or published anywhere. On the contrary, the order sheet of the court below, right from the date of remand of the appellants till test identification parade was held, indicates that the faces of either of the appellants were kept covered and no photograph