Identification of accused in court without Test Identification Parade insufficient: Patna High Court acquits all 13 accused in Senari Massacre

The Patna High Court, on Friday, acquitted all the thirteen persons accused in the 1999 Bihar Senari massacre in which 34 persons belonging to upper caste community were killed by a Maoist group in Senari village in the State (State of Bihar v. Bachesh Kumar Singh). .The Court said that identification of the accused persons by the witnesses for the first time in the trial court without prior test identification parade (TIP) cannot be relied upon to convict them. "It has (been) considered a safe rule of prudence to generally look for corroboration of the testimony of witnesses in court as to the identity of the accused who are strangers to them in the form of earlier TIP. It has further held that generally identification for the first time in dock is insufficient to warrant a conviction," the Court said. .A Division Bench comprising Justices Ashwani Kumar Singh and Arvind Srivastava, therefore, set aside the 2016 order of Sessions court which had convicted the accused for murder and rioting and sentenced ten of them to death and three to life imprisonment. "In the present case, on appreciation of evidence adduced during trial, I find that there is a real and reasonable doubt as to the guilt of the appellants.. Accordingly, the impugned judgment dated 15th November, 2016 and order of sentence dated 27th October, 2016 passed in Sessions Trial No.93/2013/281/2015, arising out of Karpi P.S.Case No.22/1999, so far as the appellants in these appeals are concerned are, hereby, set aside," the Court ordered. .The Court also said that the testimonies of witnesses cannot be relied upon, because the witnesses were hiding in different corners of the village and claimed to identify one or more accused persons "without any indication as to the source of light save the torches being carried by the miscreants.".The Court further said that the identification of these accused by a single witness after more than nine years, apart from being isolated, lacked consistency. Further, the Court also said that Section 313 of Code of Criminal Procedure (CrPC) casts a duty on the court to give an opportunity to the accused to explain the incriminating material against him, which was not done in this case by the lower court. .The IncidentOn March 18, 1999 at around 7:30 PM, around hundreds of armed miscreants entered Senari village in Central Bihar. They searched out persons allegedly belonging to Ranveer Sena, took 34 of them to the outskirts of the village and murdered all of them. The incident occurred between 7:30 to 11:30 PM and there was no electricity in the village. This was confirmed by Suresh Sharma (Prime Witness) and Dinesh Sharma (Prime Witness) in para 8 of the judgement.When the incident took place, some of the miscreants were carrying big torches. According to some of the prosecution witnesses, they identified the miscreants by the flash of torch light.FIR was filed on March 19 at around 2.30 am on the basis of the complaint tabled by one Chintamani Devi, who was the wife of late Awadh Kishore Sharma one of the deceased in the attack. "I claim that hundreds of extremists had assembled in the vicinity of my village last night at about 7.30 PM. They attacked my village being armed with rifle, gun and pasuli and committed this massacre outside the village and took away the DBBL gun of my villager Pashupati Singh. They also demolished his house by dynamite and committed massacre for four hours and left the place shouting “MCC Zindabad,” the complaint said..The accused were booked for offences under Sections 147, 148, 149, 324, 307, 302, 452, 380, 120-B of the Indian Penal Code, Section 27 of the Arms Act, Section 17 of the Criminal Law Amendment Act and 3/4 of the Explosive Substances Act against fifteen accused persons. .Arguments on behalf of the partiesThe counsel for the appellant contended that the appellants were not caught on the spot and no recoveries were made from them to connect them to the incident. Further, it was submitted that there is absolutely no material against them to hold them guilty.It was submitted that as there were many miscreants and the incident happened at night, the evidence in relation to the identification and participation of the accussed in the commission of the offence was wholly insufficient to warrant conviction.It was contended that the witnesses, who identified four of the accused, have not given any consistent account of the incident nor have they stated anything about their overt acts.It was urged that evidence brought on record between the charge and conviction was not put to any of the appellants while examining them under Section 313 of the CrPC and the material not put to the accused cannot be taken into consideration for convicting the accused..On the other hand, the Additional Advocate General submitted that the trial court was right in convicting all the accused."The 34 victims were forced out of their houses and most of them were lined up near the Thakurbadi on the outskirts of the village where their throats were slit like cattle by the cadre of the MCC. 70," the AAG said.It was further contended that the trial court discernibly and objectively considered the evidence in proper perspective and it is clear that a premeditated killing of 34 persons of a particular community was carried out in the most barbaric manner.He claimed that the witnesses examined during trial were consistent on sequence of events. He further contended that the Supreme Court has sustained conviction in a catena of cases even where the source of light was not disclosed. He also said that the conviction can be sustained even where the witnesses identified the accused for the first time in court."The accused persons and the victims were known to each other living in the same village or in the adjoining villages. They entered into the house of the victims, flashed their torches for identifying them and under such circumstance recognition was fully possible by the eye-witnesses, who saw the members of their family being dragged by the accused persons," he said. .Judgment.The court primarily noted that TIP was required be conducted in this regard, but in this case, no TIP was conducted during investigation and the conviction of the appellants was only based on dock identification made more than 7 years after the incident and extended to about 16 hours after the incident..The Court placed reliance on Kanta Prashad Vs. Delhi Administration, Sheo Shankar Singh vs State of Jharkhand, Vaikuntam Chandrappa and Ors. vs State of Andhra Pradesh and plethora of cases to observe that "ordinarily an accused should not be convicted on the testimony of witnesses identifying for the first time in court without any corroboration either by previous identification in the TIP or any other evidence.".While analyzing the principles laid down by the Supreme Court and the legal position, the Court said that there are two fundamental in criminal trials. First is whether the alleged offence was committed and, if it is established that the offence was committed, the second question which would arise would be as to who committed the offence. After analyzing each/individual cases of the appellants, the court noted that it is a safe rule of prudence to generally look for corroboration of the testimony of witnesses in court as to the identity of the accused who are strangers to them in the form of earlier TIP. .Accordingly, the appeal was allowed and reference by the lower court was rejected. The Court directed that all the appellants should be released forthwith, if they are not required in any other case. .[Read Judgment]