In a significant development with far reaching consequences, the Patna High Court in a latest, landmark, laudable and learned judgment titled State of Bihar v. Bachesh Kumar Singh in Death Reference No. 2 of 2017 dated 21-05-2021 has 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 Bihar. 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. The Court was hearing a criminal reference along with an appeal related to the Senari massacre in 1999.

Background of the incident
It must be mentioned here that on March 18, 1999 ab I'm lt 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. It also must be mentioned here that this was confirmed by Suresh Sharma (Prime Witness) and Dinesh Sharma (Prime Witness) in para 8 of the judgment.
It would be worthwhile to mention here that 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.

The complaint said that:
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.

To start with, this notable judgment by a Division Bench of Patna High Court comprising of Justice Ashwani Kumar Singh and Justice Arvind Srivastava sets the ball rolling by first and foremost putting forth in para 1 that:
The appellants in these appeals challenge the common. judge of conviction dated 27.10.2016 and order of sentence dated 15.11.2016 passed by the learned 3rd Additional Sessions Judge, Jehanabad in Sessions Trial No. 93/2013/281/2015. By the aforesaid judgment dated 27.10.2/016, the appellants have been convicted for the offences punishable under Sections 148, 302/149, punishable under Sections 148, 302/149, 307/149 of the Indian Penal Code, 27 of the Arms Act and 3/4 of the Explosives Substances Act. Consequent upon conviction, vide aforesaid order dated 15.11.2016 the appellants Bachesh Kumar Singh, Budhan Yadav, Gopal Sao, Butai Yadav, Satendra Das, Lalan Pasi, Dwarik Paswan, Kariman Paswan, Gorai Paswan and Uma Paswan have been sentenced to death and the appellants Mungeshwar Yadav, Vinay Paswan and Arvind Paswan have been sentenced to undergo imprisonment for life and a fine of Rs. 1,00,000/- for the offence punishable under Section 302/149 of the Indian Penal Code and in default of payment of fine to undergo further imprisonment for two years.

All these appellants have been further sentenced to undergo R.I. for three years and a fine of Rs. 10,000/- for the offences punishable under Section 148 of the Indian Penal Code and in default of payment of fine to undergo further imprisonment for six months, R.I. for ten years and a fine of Rs. 50,000/- for the offence punishable under Section 307/149 of the Indian Penal Code and in default of payment of fine to undergo further imprisonment for two years, R.I. for three years and a fine of Rs. 10,000/- for the offence punishable under Section 27 of the Arms Act and in default of payment of fine to undergo further imprisonment for six months, R.I. for ten years and a fine of Rs. 50,000/- for the offence punishable under Section 307/149 of the Indian Penal Code and in default of payment of fine to undergo further imprisonment for two years, R.I. for three years and a fine of Rs. 10,000/- for the offence punishable under Section 27 of the Arms Act and in default of payment of fine to undergo further imprisonment for six months and R.I. for three years and a fine of Rs. 10,000/- for the offence punishable under. Section 3/4 of the Explosive Substances Act and in default of payment of fine to undergo further imprisonment for six months. It is directed by the Trial Court that all the sentences shall run concurrently.

Needless to say, it is then stated in para 2 that:
After passing the impugned judgment and order, the Trial Court made a reference under Section 366 of the Code of Criminal Procedure (for short Cr.P.C) for confirmation of death sentence awarded to the convicts Bachesh Kumar. Singh, Budhan Yadav, Gopal Sao, Butai Yadav, Satendra Das, Lalan Pasi,, Dwark Paswan, Kariman Paswan, Gorai Paswan and Uma Paswan, which has been registered as Death Reference No. 2 of 2017.

To put things in perspective, the Bench then observes in para 152 that:
Having analyzed the testimony of the witnesses examined before the court in respect of each of the convicts, there remains no doubt that the time of occurrence was dark, the site of unfortunate massacre was beset with mayhem with villagers making desperate attempts to seek refuge in a place and position in which they would remain unseen by the miscreants lest they fell a prey to their barbarism. In such a state of complete chaos, witnesses hiding in different corners of the village have 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. Moreover, the witnesses have claimed that the miscreants were more or less identically clad, some in police uniforms, some others in the local outfits.

Also, almost all the P.Ws, who claimed identification, had done so at the time of occurrence from a distance i.e., they claimed to identify the miscreants from their respective hiding places. Only Suresh Sharma (P.W..4) claimed to identify when his hands were tied but on other counts his evidence does not inspire confidence. Ajay Kumar (P.W. 25), an injured witness identified them without specifying where and how and Manorama Kuwar (P.W.8) claimed to identify when her son was taken. Their evidence on other counts have been found doubtful.

Even if the miscreants were known to some of the witnesses, they have been identified by witnesses, who did not claim to be in proximity with the miscreants as they were more concerned about concealing themselves in safe places. It is nobody's case that the miscreants were identified through voice or clothes or any other mark of familiarity. In such a situation, characterized by darkness and physical distance, the question naturally arises as to how could any kind of identification of faces of the miscreants be made. The seizure lists do not indicate the seizure of any artificial sources of light which could have aided the identification on a dark night.

To be sure, it is then stated by the Bench in para 153 that:
Furthermore the miscreants have been identified in the dock for the first time more than seven years and extended upto about 16 years after the occurrence. The circumstances in which the identifications were made, as discussed above, make such identification rather weak without any corroboration. The dock identification was based on recollection of the events, which took place long back.

While citing the relevant case laws, the Bench then concedes in para 154 that, Admittedly, there was no TlP. The Supreme Court has consistently held in Dana Yadav @ Dahu (Supra); Sheo Shankar Singh vs State of Jharkhand (Supra); Mulla & Another vs State of U.P. (Supra); Sukhbir Singh vs State of Punjab (Supra); State of Maharashtra vs Sukhdeo Singh (Supra); Vaikuntam Chandrappa and Ors. vs State of Kerala (Supra) that the evidence of identification of the accused persons at the trial for the first time is from its very nature, inherently of a. weak character. It has 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 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.

Briefly stated, it is then put forth in para 155 that:
Another important feature of this case is the manner in which the appellants were deprived of their statutory right to be heard, as provided under Section 313 of the Cr.P.C.
To state the ostensible, the Bench then points out in para 156 that:
A plain reading of Section 313 of the Cr.P.C would demonstrate that the question under Clause (1) (a) is discretionary. It empowers the Court to put such question to the accused as the court considers necessary for the purpose of enabling him personally to explain any circumstance appearing in evidence against him at any stage without previoúsly warranting. However, Clause (1) (b) empowers the court to question the accused on the case after the witnesses or the prosecution has been examined and before is called upon for his defence. It casts a duty on the court to give an opportunity to the accused to explain the incriminating material against him.

Of course, the Bench then stated in para 161that:
The membership of an unlawful assembly, allegation under the Arms Act, Explosive Substances Act and killing of 34 persons by the unlawful assembly were the charges on which the appellants were tried. The evidence against the appellants is the material on which the Trial Court has relied upon to convict them.

Quite remarkably, the Bench then while citing the relevant case laws put forth in para 162 that:
The examination of the accused persons under Section 313 of the Cr.P.C when compared with the charges framed will illustrate the utility of the examination in this case. The accused persons have been subjected to severe standard and identical questions even though the witnesses against them are disparate. While some of the accused persons have been identified by some witnesses, the others have been identified by a single witness.

No question has been put to them regarding identification by different persons and the places in the village in which they were claimed to be identified. For instance, the evidence against Butai Yadav, Uma Paswan and Lalan Pasi is that they tied the hands of Suresh Sharma. However, they have not been confronted with these evidences. Instead of seeking their explanation with regard to the incriminating material, the accused persons have been asked to explain the charges for which they were being tried. This sort of examination goes against the essence of Section 313 of the Cr.P.C. Thus, in view of the ratio laid down by the Supreme Court in State of U.P. Vs. Md. Iqram & Anr (Supra), Naval Kishore Vs. State of Bihar (Supra), Dara Singh And Anr. vs The State of Punjab (Supra) and Reena Hazarika Vs. State of Assam (Supra), the material not put to the accused cannot be taken into consideration for convicting them.

As a corollary, the Bench then holds in para 163 that:
Thus, the identification of the accused persons by the witnesses in the court cannot be relied upon to convict them.
No doubt, it cannot be lost on us that it is then observed in para 164 that, Moreover, the conviction in a criminal trial is required to be certain and not doubtful. The burden of proof of guilt of an accused is upon the prosecution. It must stand by itself. 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.

In essence, the Division Bench comprising of Justice Ashwani Kumar Singh and Justice Arvind Srivastava of Patna High Court while setting aside the 2016 order of Sessions Court which had convicted the accused for murder and rioting and sentencing ten of them to death and three to life imprisonment made it amply clear that identification of accused in court without Test Identification Parade is insufficient and thus acquitted all the 13 accused in Senari massacre case. We thus see that the Patna High Court in this leading case very rightly ordered that:
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

As we see, the Patna High 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. Unquestionably, the Court rightly 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 (Cr.P.C) 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. Thus we see that due to paucity of evidence and due to identification of accused in court without Test Identification was found to be insufficient for conviction. As a consequence the Patna High Court thus acquitted all the 13 accused in Senari massacre in Bihar. Very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, .,Meerut - 250001, Uttar Pradesh.