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Chandan Chaudhry vs The State Of Bihar on 16 October, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1695 of 2017
Arising Out of PS. Case No.-60 Year-2004 Thana- BACHHWARA District- Begusarai

Chandan Chaudhry S/o- Nathuni Chaudhry @ Natho Chaudhry Resident of
Village- Rahimpur- Chaudhary Tola, P.S.- Muffasil, District- Khagaria.

… … Appellant
Versus
The State Of Bihar

… … Respondent

Appearance :

For the Appellant/s : Mr. Ramakant Sharma, Sr. Adv.

Mr. Anjani Parashar, Adv.

Mr. Dhananjay Kr. Tiwary, Adv.

For the Respondent/s : Mr. S.A.Ahmad, A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date : 16-10-2019

Appellant Chandan Chaudhary has been found guilty for

an offence punishable under section 307/34 I.P.C. and sentenced to

undergo R.I. for seven years as well as to pay fine appertaining to

Rs.2,000/- and in default thereof, to undergo S.I. for six months,

additionally, under section 326/34 I.P.C. and sentenced to undergo

R.I. for seven years as well as to pay fine appertaining to

Rs.2,000/- and in default thereof, to undergo S.I. for six months,

additionally, under section 447/34 I.P.C. and sentenced to undergo

S.I. for one month, under section 341/34 I.P.C. and sentenced to

undergo S.I. for one month with a further direction to run the

sentences concurrently, with a further direction that the period

having undergone during course of trial will be set off in
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accordance with section 428 Cr.P.C. vide the judgment of

conviction dated 18.5.2017 and order of sentence dated 19.5.2014

passed by the Fast Track Court No.I, Begusarai in S.Tr.No.

277/2006.

Nilkamal Ray (P.W.4) while was admitted at Kalpana

Nursing Home, Begusarai gave his Fard Beyan on 3.8.2004 at

about 3.40 P.M. inscribing therein that on 2.8.2004 at 9.45 P.M.

while he was reading in his room, his wife was taking meal and

during course thereof was screening T.V. as well in Dinning Hall,

his parents were also screening T.V. in the T.V. room, all on a

sudden two persons intruded through balcony having back side of

his house. He identified them in the electric light to be Bambam

Rai, S/o late Mirtunjay Kumar Rai co-villager and other, his

cousin brother (Mamera Bhai), Chandan Kumar Chaudhary, son of

Ramashrai Choudhary of village Rahimpur Tola, Panchkhuti, P.S.

Mufassil, District Khagaria. Seeing both of them coming inside,

his wife as well as his mother raised alarm. Without wasting time,

Chandan Chaudhary took out dagger and then gave blow over the

waist (right side), left hand, stomach left side of his wife and then

proceeded towards his mother whom he repeatedly gave 3-4

dagger blow. He rushed shouting in order to save his mother

whereupon, Bambam Rai gave blow with pistol having loud
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sound. He tried to snatch pistol from him and during course

thereof, Chandan Chaudhary gave dagger blow over his wrist (left

side), stomach. During midst thereof, Bambam Rai shot at his

father causing injury over the back of his head. The motive for the

occurrence has been shown as persisting animosity in between

father-in-law of the sister of the accused Bambam Rai, namely,

Shyam Sunder Rai with them.

Bachwara P.S.Case No. 60/2004 was registered

thereupon followed with an investigation as well as submission of

the charge sheet against Bambam Kumar Rai (Juvenile), Shyam

Sunder Singh (since acquitted) and Chandan Chaudhary,

facilitating the trial meeting with ultimate result, subject matter of

the instant appeal.

Defence case as is evident from the mode of cross-

examination as well as statement recorded under section 313

Cr.P.C. is that of complete denial of the occurrence. It has also

been pleaded that they have been implicated in this case in the

background of persisting animosity. However, nothing has been

adduced in defence.

In order to substantiate its case, prosecution has

examined altogether five P.Ws., who are Babli Ray P.W.1, Sushila

Ray P.W.2, Dhnanjay Kumar Ray P.W.3, Neel Kamal Ray P.W.4
Patna High Court CR. APP (SJ) No.1695 of 2017
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and Dr. Ashok Kumar Sharma P.W.5 as well as also exhibited

Ext.1 the signature of the informant and Exts. 2 series the injury

report. As stated above, nothing has been adduced in defence.

While assailing the judgment impugned, it has been

submitted at the end of learned counsel for the appellant that the

same has been passed mechanically without properly appreciating

the facts and circumstances of the case. The first and foremost

argument is that on account of non-examination of the I.O. the

right of the appellant has been prejudiced more particularly in the

background of material exaggeration in the evidence of respective

P.Ws and further, being inconsistent amongst themselves would

have properly been appreciated corresponding to objective finding

relating to the P.O. Had there been examination of the I.O. the

falsity of the evidences of the PWs could have been exposed

leading to unreliability. That being so, on the sole ground alone,

the judgment of conviction is fit to be annulled.

Then, it has been submitted that on proper consideration

of the evidence of the P.Ws., it is crystal clear that the occurrence

as alleged had never been taken place in a manner so suggested.

The prosecution party faced different kind of activity, but being on

inimical term, roped the appellant and others. Presence of

appellant alongwith others inside the house as alleged by the
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prosecution, in a manner as projected could not have been

materialized as the witnesses themselves deposed that the main

door having at the backside of the house was closed. Latch was

properly affixed. Then in that circumstance, unless and until the

door would have been broken entrance was not possible, which is

not the case of the prosecution. So, there was no route available to

come inside the house. Hence, presence of the appellant as

suggested, appears to be umbrageous.

It has also been submitted that from the record it

transpires that whosoever been examined are the inmates of the

house being father, mother, son and the daughter-in-law, and

further, they all have sustained injuries. Then in that event there

would not have possibility in getting themselves admitted at the

hospital without having indulgence of others and, as is evident

those persons have not been examined during course of

investigation nor, they have been cited as a witness in the charge

sheet nor, the prosecution took proper legal step to bring them as a

witness during trial. That means to say, had there been

examination of the I.O. then in that circumstance, the appellant

would have been in a position to cross-examine on that very score

and further, would have in a position to expose mala fide, ulterior

motive of the prosecution in grabbing the appellant and other with
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the present allegation. So, in sum and substance it has been

submitted that due to non-examination of the I.O. the interest of

the appellant has been severely prejudiced.

Now coming to the individual status of the appellant, it

has been argued that the identity of the appellant has been shown

by the informant to be the cousin (Mamera brother of Bambam).

But, after going through evidence of other P.Ws., it is crystal clear

that they have got no opportunity for having proper identification

of the appellant and in the aforesaid background, the appellant is

entitled for benefit of doubt. In its continuity, it has further been

submitted that the prosecution, even during course of trial, has

gone to such extent that at one occasion, the wife of the informant

has stated that he is not the same person, who was present at an

earlier occasion in dock and, this was only to prejudice mind of the

court as well as in order to wrap incompetency in proper

identification. That being so, the judgment impugned is fit to be

set aside.

On the other hand, learned Addl. P.P. has submitted that

from the evidence of the doctor, it is manifest with regard to

sustenance of the injury over the person of the respective injured.

It is further evident that all the four injured witnesses had
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substantiated the case whereupon, the finding so recorded by the

learned lower court did not require interference.

In order to explain absence of the independent witness,

it has been submitted that the occurrence is inside the house. There

happens to be specific disclosure that at the time of occurrence, the

injured were screening T.V. and so, the sound coming out from the

T.V. virtually restrained the neighbours to perceive commission of

an occurrence as, the sound of the respective victims got merged

and, getting benefit thereof, accused persons had safe departure. It

has further been submitted that due to non-examination of the I.O.

no prejudice has been caused to the appellant, rather it is the

prosecution which interest is found at stake because of the fact that

the relevant objective finding relating to the place of occurrence

gone unattended. It has thus been submitted that the finding

recorded by learned lower court is fit to be confirmed.

P.W.1 is Babli Ray, wife of the informant, one of the

injured. She during her examination-in-chief has stated that on

2.8.2004 at about 9.30 P.M. she was taking meal, her father-in-law

Dhananjay Kumar Ray, mother-in-law Shushila Ray,her husband

Neelkamal Ray, her both children and servant were there. Chandan

came through back room and gave chhura blow from behind over

her waist. Thereafter, he moved towards the T.V. room leaving
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chhura remained with her body. She shouted, whereupon her

husband came out from another room and rushed towards the T.V.

room in order to save his father. During course thereof, her

husband was assaulted by the knife, as a result of which, he fell

down in the kitchen itself. She rushed towards her personal room

to save her children where, her servant extracted knife from her

body. During midst thereof, his father-in-law was shot at over his

head while her mother-in-law was given chhura blow over her

stomach. At that very moment, as she was near about her children

so, she could not be able to see the assailant. Then she came out

from her room to see till then, Chandan had given another knife

blow as a result of which, she fell down, became unconscious. All

of them have been lifted to Kalpana Nursing Home and from there,

considering critical condition, her father-in-law and mother-in-law

were shifted to Patna. The motive for the occurrence has been

shown as prevailing animosity amongst her father-in-law as well

as Shyam Sunder Singh. The aforesaid Shyam Sunder Singh had

threatened at earlier occasions twice or thrice. Claimed

identification of both accused. Identified.

During cross-examination at Para- 3 there happens to be

contradiction but, on account of non-examination of the I.O., the

same has not been confronted, apart from the fact that para-3 of
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her cross-examination is confined exclusively relating to co-

accused Shyam Sunder Singh (since acquitted).

On behalf of the appellant Chandan Chaudhary, at para-

4 she has stated that her statement was recorded by the police after

arrival at her house from Kalpana Nursing Home about a month

after the occurrence. At that very time all were present. Daroga Jee

one by one interrogated and then recorded. Then there happens to

be contradiction, but the same has got no relevance in the

background of non-examination of the I.O. Then she has disclosed

that all the family members were present at the house. As she

became unconscious on account thereof, she is unable to disclose

who came subsequently. Then there happens to be cross-

examination relating to her admission at Kalpana Nursing Home.

Then at para-6 there happens to be cross-examination relating to

family status. During course thereof, she has disclosed that her

father-in-law happens to be three brother, Bhuneshwar Ray,

Janardan and Dhananjay Ray (her father-in-law). Mritunjay Ray is

the father of Bambam. The mother’s name of Bambam is

Kadambini. Her Maike happens to be at village Rahimpur. She

does not know with regard to brother and nephew of Kadambini.

She has got no information with regard to dispute with Bambam.

Bambam and his mother were on visiting terms. Chandan
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Chaudhary is (Mamera) cousin brother of Bambam. She does not

know father’s name of Chandan Chaudhary to be Ramashray

Chaudhary. Then she said that she had heard about father’s name

of Chandan Chaudhary, to be Ramashray Chaudhary. Then she has

stated at para-7 that Mritunjay (father of Bambam) is the son of

Bhuneshwar Ray. He is dead. At para-10 she had shown boundary

of her house, North- house of Raj Kumar Mahto, South- house of

Arbind Babu, East- Road, West- field. In para-11 she has stated

that her building is double storyed. At the ground floor there

happens to be Exchange Office of BSNL. Guard resides at the

office. There happens to be four rooms at the upper floor, out of

which, three are bed room. They usually close entrance gate at

about 10 P.M. The entrance is through the Southern side of the

house. In para-12 she has stated that she was not knowing

Chandan since before the occurrence. None had introduced her

Chandan after the occurrence. She is seeing Chandan second time

in court . Before today she had seen Chandan alongwith Shyma

Sunder in the dock. Then she denied the suggestion that the

person, who is standing in the dock, is not the same Chandan,

Mamera brother of Bambam whom she has wrongly identified.

Then has been suggested, the person, who is in dock, is Chandan

Chaudhary @ Samkas Chauhary, son of Ram Narain Chaudhary,
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resident of village Rahimpur Chaudhary Tola, P.S. Muffasil,

District Khagaria. Then she admitted that the Mamera brother of

Bambam is Chandan Chaudhary, son of Ramashray Chaudhary, of

village Rahimpur, Tola Panchkhuti, P.S. Muffasil, District

Khagaria. Then again said after seeing Chandan Chaudhary in

dock that he is not the same person, who was standing in the dock

alongwith Shyam Sunder on previous date. She is seeing for the

first time in court the person claiming to be Chandan Chaudhary.

During course of occurrence, it was different Chandan Chaudhary.

Hence, denied the suggestion that out of village politics they have

implicated Chandan Chaudhary.

P.W.2 is mother of the informant, mother-in-law of

P.W.1. She has stated that on 2.8.2004 at about 9.30 P.M. she was

screening the T.V. alongwith her husband. At that very time, she

alongwith her husband, her daughter-in-law, son, servant and

minor grand-sons were residing over the first floor of the house.

Two persons intruded inside her house out of whom, Bambam was

armed with pistol while another was armed with knife. The person,

who was carrying knife had given a blow over her daughter-in-law.

Thereafter, he gave blow over her stomach as well as chest. Her

son came for rescue who was also assaulted with knife. Bambam

shot at her husband. She later on came to know her assailant as
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Chandan Chaudhary, son of Nathuni Chaudhary of village

Rahimpur, Mamera brother of Bambam. It has further been

disclosed that has her husband had protested over frequent visit of

Shyam Sunder at the place of Kadambari (mother of Bambam).

So, she apprehended that the occurrence was committed at his

instance. She has further stated that Daroga Jee of Bachchwara

P.S. lifted all the injured to Kalpana Nursing Home wherefrom she

alongwith her husband was sent to Patna while, her son and

daughter-in-law remained at Kalpana Nursing Home, Begusarai

where they were treated. It has further been disclosed that the

police had recorded her statement at Patna, 3-4 days after the

occurrence over which, she had put her signature. She identified

the accused Shyam Sunder Singh, who was only present in dock. It

has further been disclosed that Kadambari happens to be daughter-

in-law of her husband. Her husband died in the year 1994.

Para-5 of her cross-examination, it is related to Shyam

Sunder (since acquitted). At para-6 there happens to be cross-

examination over the family status. She has further stated that the

partition took place amongst the brothers of her husband in the

year 1993 in presence of her father-in-law Ram Gulam Ray. Her

husband’s brother Bhuneshwari Ray died in the year 2009 while

his son Mritunjay Ray had predeceased him (3rd April, 1994).
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Mritunjay Ray has two daughters and a son, wife Kadambani Ray.

Mritunjay was married at Rahimpur with the daughter of

Sachchidanand Chaudhary, namely, Kadambani. He was Lecturer.

In para-7 she has stated that save and except three Mamu of

Bambam, she does not know about the other villagers. She has

further stated that she has got no animosity with Bambam as well

as his Mamera brother. Her son Neelkamal Ray has wrongly stated

before the police that Mamera brother of Bambam, namely,

Chandan Kumar Chaudhary of village Rahimpur, Tola Pachkhuti,

District Khagaria was involved in the occurrence. Then she stated

that at the time of recording of the statement of Neelkamal Ray,

she was not present as, at that very time she was admitted at the

clinic of Dr. Hai. She was admitted on 3.8.2004 at about 7.30-8

P.M.. Then she stated that so many persons of her Mohalla came

whom she disclosed about the occurrence but, she is unable to

divulge their names. Her father was also present on the date of

occurrence. She had not informed the police. Who informed, she

does not know. Sanjay Ray, Daroga was on visiting term since

before. After arrival of Mohalla people her father had opened the

door. There is only one door through which there happens to be

passage of ingress-outgress. Then she stated that they were lifted

by the Mohalla people over the Jeep belonging to O.C. She had
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disclosed before the O.C. regarding the occurrence. She alongwith

her husband, son, daughter-in-law, all were conscious. At that very

time Daroga Jee had not recorded statement of her son. Only her

statement was recorded. She had not put her signature over the

statement, but later on she had signed after returning from Patna,

approximately after 15 days. Her statement was recorded at I.C.U.,

Patna but she is unable to disclose the date of statement. In her

statement she had disclosed the name of Chandan Kumar

Chaudhary, son of Nathuni Chaudhary. She had put her signature

after going through the statement. None of both statement which

she had given before the Daroga Sanjay Singh as well as at the

clinic of Dr. Hai is present before her. Then she denied the

suggestion that the statement whatever been given by her at Dr.

Hai clinic did not disclose complicity regarding Chandan

Chaudhary, son of Nathuni Chaudhary. In para-8 she has stated

that the accused Chandan Chaudhary is not son of own Mama of

Bambam rather, he happens to be villager. He is not on visiting

term. So many people of Bachhwara have disclosed regarding

complicity of Chandan Chaudhary. Surendra Ray is one of them.

She has stated that so many girls of Rahimpur are present at

Bachhwara who have disclosed with regard to complicity of

Chandan Chaudhary and on the basis thereof, she has named
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Chandan. She has further stated that at the time of occurrence

Surendra Ray was present at her house. He had come at her house

at about 10 P.M. At that very time, she was at her house. Surendra

had disclosed the name after 3-4 days. Then she again corrected,

she returned on 13-14th August from Patna then, he had disclosed

to her father, who is now dead. In para-9 she has stated that while

she was admitted at hospital Chandan was apprehended. In para-10

there happens to be tomography of her house. Then she disclosed

that the accused persons came at 9.30 P.M. Just two minutes

thereafter she heard shout of her daughter-in-law whereupon, she

alongwith her husband put query and ran towards same. Her

daughter-in-law was injured. She was over Chauki till then. There

were repeated knife blow from behind. As soon as she came, she

was also assaulted twice with knife. Just after receiving knife

blow, she fell down but was conscious. In para-11 she has stated

that she was at forefront. As soon as she reached near Chaukhat,

the accused had assaulted her from in front. Just after receiving

injury, she fell down. She was taken to Kalpana Nursing Home.

10-15 minutes thereafter, the police arrived at the place of

occurrence. At that very time all were conscious. The O.C. Sanjay

Singh did not interfere at that very moment, rather during course

of taking them to hospital he interrogated. First of all she was
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interrogated. She is not remembering whether her statement was

recorded, her signature was taken, then has stated that Dr. Ashok

Sharma happens to be her son-in-law.

P.W.3 has stated that on the alleged date and time of

occurrence, he was screening T.V. alongwith his wife. All on a

sudden they heard sound of shout of their daughter-in-law Babli

Kumari whereupon, he alongwith his wife Sushila Devi (P.W.2)

rushed and as soon as reached near door, Chandan Chaudhary and

Bambam came running. Chandan was armed with knife while

Bambam was armed with pistol. Chandan gave knife blow on the

stomach of his wife while Bambam shot at causing injury over his

head, right side. He fell down. He saw Neelkamal Ray coming in

rescue but was assaulted by Chandan with knife, as a result of

which his son also became unconscious. Her daughter-in-law had

shouted after having been assaulted with knife. Chandan

Chaudhary had pierced the knife in the stomach of his wife. After

some time, he became unconscious. They were lifted to Kalpana

Nursing Home and from there, he alongwith his wife was taken to

Patna. Neelkamal and his wife were treated at Begusarai itself. He

was treated at the clinic of Dr. A.K.Agrawal while his wife was

treated at the clinic of Dr. Hai. Then has stated that Shyam Sunder

Singh happens to be the father-in-law of Bambam Ray. He began
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to visit at his house frequently whereupon, it became a hot cafe

discussion in the village. That so, he forbade Shyam Sunder Singh

and in the aforesaid background, this occurrence was committed.

He identified the accused. Para-3 happens to be cross-examination

relating to Shyam Sunder (since acquitted). In para-4 he has stated

that he has got no relationship at village Rahimpur and so, he had

not visited the village Rahimpur. That being so, neither Chandan

Chaudhary had visited to his place nor he had visited at his place.

Then has stated that while they were screening T.V., they heard

outcry of their daughter-in-law. The voice came from the western

side of the room in which they were sitting whereupon, he

alongwith his wife rushed and had seen their daughter-in-law in an

injured condition. Then has stated that the accused (Chandan), who

is present in dock, has assaulted by giving knife blow. He is unable

to say how many times he had given blow. In para-5 he has stated

that his wife fell down at the Eastern side of the room. He had

tried to apprehend the accused while his wife was being struck

down and during midst thereof, he was shot at by Pranav Kumar

Ray. He sustained injury over head. Just after sustaining injury he

sat down as, he perceived dizzynell and then he became

unconscious. He regained sense at Patna. How many days

thereafter he regained sense he is unable to say. At that very time,
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other injured were not alongwith him rather, his sister was present.

In para-6 he has stated that he had instituted case against Pranav

Kumar @ Bamabm and his Mamera brother Chandan Chaudhary.

Then has stated that his statement was not recorded at Patna. Then

has stated that he has registered case against Chandan Chaudhary,

son of Ramashray Chaudhary but in order to save him got

Chandan Chaudhary, son of Ram Narain Chaudhary implicated in

this case.

P.W.4 is the informant. He during his examination-in-

chief has stated that on 2.8.2004 at about 9.45 P.M. he was in his

room. His parents (father and mother) and his older son were in a

T.V.room and were screening the T.V. His wife Babli was also

screening T.V. during course of taking meal. Two persons intruded

inside the house through Balcony. They firstly assaulted his wife

with knife over her back, stomach whereupon, his wife shouted.

He came out from his room. Till then, he saw one person having

pistol in his hand and was going towards his father whereupon, he

tried to snatch the pistol but, during midst thereof, the other

assailant gave knife blow whom he had identified to be Chandan

Kumar Chaudhary. The person who was carrying pistol was

Bambam Kumar, who shot at his father causing injury over his

head. He was assaulted twice. His mother was also assaulted.
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Shown the scat mark of wound before the court. His wife, then

thereafter in order to save his son took effort whereupon, she was

again given chhura blow by Chandan Chaudhary. Thereafter, both

the accused persons fled away. They were taken to Kalpana

Nursing Home where they were treated but, as the condition of his

mother deteriorated, so she was referred to the clinic of Dr. A. Hai,

Patna. His statement was recorded by Bachhwara Police over

which he had put his signature as well as his father also put his

signature. Exhibited the same. Then has disclosed that Bambam

happens to be cousin nephew. After death of Bambam’s father, his

father became his guardian but after the marriage father-in-law of

Bambam did not like and in the aforesaid background, at his

provocation, occurrence had been committed by the accused

persons.

During cross-examination he has stated that the P.O.

land is his ancestral land but the house has been constructed by his

father. Bambam has been allotted with the old house. Another

brother of his father got house lying near Mission. His father has

been allotted same land near station. All the lands have equal area.

Then has stated that at the time of occurrence, respective injured

were in respective rooms adjacent to each other. First of all, he

heard the outcry of his wife while he was in his room. She shouted
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‘Mar Diya’. When he came out he saw his wife over Chauki. He

has further stated that his mother was admitted to hospital at Patna

on 3.8.2004. The statement of the mother was recorded by the

Patna Police. He is unable to say whether his mother had named

Chandan Kumar Chaudhary or not. Then there happens to be

contradiction with regard to motive but as the I.O. has not been

examined so, the aforesaid statement has got no legal entity. Then

there happens to be contradiction relating to his further statement

over the manner of occurrence. Then has stated that at the ground

floor of the house there happens to be the Exchange Office. It has

also been disclosed that the Security Guard of BSNL always

remains there but on the alleged date there was no security. Then

there happens to be cross-examination relating to Nanihal, family

of maternal grand father of Bambam Chaudhary. He has further

stated that he had gone to Nanihal of Bambam thrice or even more

than that. He is unable to disclose the name of others with the

family members of Nana of Bambam. He is unable to disclose the

name of mother of Chandan. Then has stated that during course of

recording of Fard Beyan he had named the accused with his

parentage. At that very time he was conscious. At that very time,

he had disclosed regarding the location of the body aimed at by the

accused father- head, right side, mother over stomach, three
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injuries over her stomach, two injuries over stomach, one at back

side over his wife and two injuries including one on left hand, one

back over him. He has also stated that there was blood stained over

apparel of his maternal grand father, namely, Ramdeo Ray. They

have shown blood stained cloth to Daroga Jee but unable to

disclose whether any document was prepared or not. Then has

stated that he had not gone to the place of Chandan. Before the

occurrence there was good relationship in between the father of

Bambam as well as his father. Chandan Chaudhary has got some

sort of connectivity with Bambam as well as Shyam Sunder

Chaudhary. Again said that Chandan Chaudhary has got no

concern with them. He is not knowing whether Chandan

Chaudhary is an accused in any other case or not. His father

remained at Patna from 4.8.2010 to 10-11.11.2010. He is not

knowing whether statement of his father was recorded at Patna or

not. At the time of occurrence Manoj Pandit was serving as his

servant. His elder son Tushar Kumar was aged about four years at

the time of occurrence. Then has said that the police had arrived.

They have not informed the police. Then has denied the suggestion

that his father had developed illicit relationship with the mother of

Bambam, namely, Kadambani over which there was resentment in

the surrounding. The he stated that he was not knowing father’s
Patna High Court CR. APP (SJ) No.1695 of 2017
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name of Chandan Chaudhary. As disclosed by others he mentioned

the name of father of Chandan Chaudhary. Surendra Kumar Ray

had disclosed the name of the father of Chandan.

P.W.5 is the doctor, who had examined Babali Devi on

2.8.2004 and found the following injuries:

“(i) Incised wound 1″x1/2″x communicating to
abdominal cavity on left side of abdomen.

(ii) Incised would 2″x1/2″ on right side of back.

All the injuries caused within six hours. Nature of injury
grievous, caused by sharp cutting weapon. Stomach was pierced
by sharp cutting weapon which was repaired.

On the same day at 10.40 P.M. he examined Neel Kamal

Rai (informant) and found only one injury:

Incised would 6″x2″x2″ on left side of back of chest.
Nature of would- grievous caused by sharp cutting
weapon, Age within 6 hours.

On the same day at 10.30 P.M. he examined Dhananjay

Kumar Ray (P.W.3) and found the following injuries:

(1) Entry would 1/2″ in diameter on right side of head
with fraction of skull bone.

(2) Exit would 1″x1/2″ right side of skull back of right
ear.

(3) Incised would 1/2″x1/2″x right side of chest.

Nature- grievous injury no.1 caused by firearm. Injury

no.(3) caused by sharp cutting weapon.

Patna High Court CR. APP (SJ) No.1695 of 2017
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On the same day at 11.45 P.M. he examined Sushila

Devi and found the following injuries:

(1) Incised would 2 1/2″x 1″ on left side of abdomen
communicating to abdominal cavity.

(2) Incised would 2″x1/2″ on left side of chest.

Nature grievous, caused by sharp cutting weapon. The

injuries was serious.”

During cross-examination he has stated that fire arm

injury might have been caused from the distance of 4-7 feet. Then

has said that he is unable to say the exact condition of the

respective injured during course of inflicting knife blow.

From the record, it is evident that the I.O. has not been

examined. It is not the sound principle of law that there should be

examination of I.O. in order to prove its case at the end of the

prosecution. However, the court has to see, whether the

prosecution has succeeded in substantiating its case even in

absence of I.O. But, if it is found that prosecution version is found

suffering from knickering then, in that circumstances examination

of I.O. is found necessary. And, in that circumstances the non-

examination of I.O. will be considered a severe lacuna in the

prosecution case coupled with other ancillary grounds so stated at

the end of defence. In Mano Dutt Anr. vs. State of U.P,

reported in 2012(2) PLJR 163 (SC) it has been held:
Patna High Court CR. APP (SJ) No.1695 of 2017
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“17. As per the medical report, the injuries on the body
of Ram Dutt were found to be ‘simple in nature’. On
the other hand, we have a complete version of the
prosecution, duly supported by witnesses, out of which
PW-1 and PW-2 are eye-witnesses to the occurrence.
The bone of contention between the parties was the
statement of the deceased, that he was filling the earth
over some land, which he claimed to be his land;
according to the accused, the earth-filling was carried
out in front of the door of Ram Dutt. According to
both the parties, the villagers came to the spot. Out of
the two versions, the one put forward by the
prosecution and the other in the defence of the
accused, the version of the prosecution, as has been
disclosed by the eye-witnesses, is trustworthy, reliable
and entirely plausible in the facts and circumstances of
the case. The mere fact that the Investigating Officer
has not been produced, or that there is no specific
explanation on record as to how Ram Dutt suffered
these injuries, would not vitiate the trial or the case of
the prosecution in its entirety. These claims of the
accused would have been relevant considerations,
provided the accused had been able to establish the
other facts alleged by them. It is not always mandatory
for the prosecution to examine the Investigating
Officer, provided it can establish its case beyond
reasonable doubt even in his absence. The present case
certainly falls in the latter class. Where the accused
lead no defence, they cannot take benefit of the fact
that the prosecution did not examine any independent
Patna High Court CR. APP (SJ) No.1695 of 2017
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witnesses. The accused would be deemed to have been
aware of the consequences in law when they gave a
statement admitting the occurrence but attributing
aggression and default to the deceased and his family
members.”

In Tej Parkash vs. State of Haryana, reported in

(1996)7 SCC 322 it has been held:

“18. In support of his contention that serious prejudice
was caused to the appellant by non-examination of
Phool Singh who had been cited by the prosecution as
one of the witness, Mr Ganesh relied upon Stephen
Seveviratne v. King, AIR 1936 PC 289, Habeeb Mohd.
v. State of Hyderabad, AIR 1954 SC 21, and State of
U.P. v. Jaggo, (1971)2 SCC 42. The aforesaid
decisions can be of little assistance to the appellant in
the present case. What was held by the Privy Council
and this Court was that witnesses who were essential
to the unfolding of the narrative on which the
prosecution is based must be called by the prosecution
whether the effect of their testimony is for or against
the case for the prosecution and that failure to examine
such a witness might affect a fair trial. It was also
observed that all the witnesses of the prosecution need
not b called. In the present case, the witnesses who
were essential to the unfolding of the narrative had
been examined. One of the facts which had to be
established was that the body of the deceased was
found in the well and the same was taken out by two
labourers, namely, Giarsi Lal P.W.6 and Phool Singh.

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The Fact that this body was recovered from the well
was proved by Giarsi Lal P.W.6, among other
witnesses, and Phool Singh who had apparently been
cited as a witness for the same purpose was not
examined. His non-examination cannot be regarded as
causing any prejudice to the appellant. Our attention
was also drawn to the decision of the Allahabad High
Court in the case of Sahabjan v. State of UP, 1990
CriLJ 980, where it was observed that the mere
allegation that some witnesses were not prepared to
support the prosecution case and had been won over
by the accused would not be sufficient and that
opportunity should be given to the court to assess their
evidence and to come to such a conclusion. In that
case the witnesses given up had been named as being
the eye witness to the incidence and it is in that
context the Court made the aforesaid observation.
Non-examination of a witness who had been cited by
the prosecution would of course result in an adverse
inference being drawn in view of Illustration (g) of
Section 114 of the Evidence Act and may in some
cases even caused prejudice to the defence, but in the
present case, Phool Singh who merely recovered the
body from the well along with Giarsi Lal P.W.6 was
not such an important witness whose non-examination
could be said to have caused any prejudice to the
appellant.”

In Avtar Singh vs. State of Haryana, reported in

(2012)9 SCC 432 it has been held:

Patna High Court CR. APP (SJ) No.1695 of 2017
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“19. The law on this aspect can be succinctly stated to
the effect that in order to prove the guilt of the
accused, the prosecution should make earnest effort to
place the material evidence both oral and documentary
which satisfactorily and truthfully demonstrate and
fully support the case of the prosecution. Where there
were several persons stated to have witnessed the
incident and the prosecution examined those witnesses
who were able to depose the nature of offence
committed more accurately leaving no room for doubt
about the involvement with specific overt act and also
were able to withstand the cross-examination by
maintaining the sequence and the part played as
originally stated, it will be wholly irrelevant and
unnecessary to multiply the number of witnesses to
repeat the same version.”

For bring home the charge it is the quality that matters

and not the quantity as has been decided by the Apex Court in

Harbeer Singh vs. Sheespal ors., reported in 2017(1) PLJR

129(SC) as well as Section 134 of the Evidence Act also takes care

of. So, the evidence of single P.W. if inspires confidence will be

suffice to accept the version.

So far as the status of the injured witness is concerned,

that has got priority and presence of the injury is indicative of the

fact that the witness has sustained injury in a manner as deposed

by him and his presence is further found affirmed at the place of
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occurrence and so, unless resolutely filliped, his version is to be

accepted as has been observed by the Apex Court in Mukesh

Anr. vs. State for NCT of Delhi ors., reported in 2017(3) PLJR

248 (SC).

“79. The injuries found on the person of PW-1 and the
fact that PW-1 was injured in the same occurrence
lends assurance to his testimony that he was present at
the time of the occurrence along with the prosecutrix.
The evidence of an injured witness is entitled to a
greater weight and the testimony of such a witness is
considered to be beyond reproach and reliable. Firm,
congent and convincing ground is required to discard
the evidence of an injured witness. It is to be kept in
mind that the evidentiary value of an injured witness
carries great weight. In Mano Dutt and Another vs.
State of Uttar Pradesh, (2012)4 SCC 79, it was held
as under:

“31. We may merely refer to Abdul Sayeed vs.
State of M.P., (2010)10 SCC 259, where this Court
held as under:

“28. The question of the weight to be attached to
the evidence of a witness that was himself injured
in the course of the occurrence has been
extensively discussed by this Court. Where a
witness to the occurrence has himself been injured
in the incident, the testimony of such a witness is
generally considered to be very reliable, as he is a
witness that comes with a built-in guarantee of his
Patna High Court CR. APP (SJ) No.1695 of 2017
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presence at the scene of the crime and is unlikely
to spare his actual assailant(s) in order to falsely
implicate someone. ‘Convincing evidence is
required to discredit an injured witness’. [Vide
Ramlagan Singh vs. State of Bihar,
(1973(3)SCC881, Malkhan Singh vs. State of U.P.,
(1975(3) SCC 311, Machhi Singh vs. State of
Pubjab, (1983)3 SCC 470, Appabhai vs. State of
Gujarat, 1988 (Supp.) SCC 241, Bonkya vs. State
of Maharashtra, (1995)6 SCC 447, Bhag Singh vs.
State of Punjab, (1997)7 SCC 712, Mohar vs. State
of U.P., (2002) 7 SCC 606, Dinesh Kumar vs. State
of Rajasthan, (2008)8 SCC 270, Vishnu vs. State of
Rajasthan, (2009)10 SCC 477, Annareddy
Sambasiva Reddy vs. State of A.P., (2009)12 SCC
546 and Balraje vs. State of Maharashtra, (2010)6
SCC 673]

29. While deciding this issue, a similar view was
taken in Jamail Singh vs. State of Punjab, (2009)9
SCC 719, where this Court reiterated the special
evidentiary status accorded to the testimony of an
injured accused and relying on its earlier
judgments held as under:

’28. Darshan Singh (PW-4) was an injured
witness. He had been examined by the doctor. His
testimony could not be brushed aside lightly. He
had given full details of the incident as he was
present at the time when the assailants reached the
tubewell. In Shivalingappa Kallayanappa vs. State
of Karnataka, 1994 Supp.(3) SCC 235, this Court
Patna High Court CR. APP (SJ) No.1695 of 2017
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has held that the deposition of the injured witness
should be relied upon unless there are strong
grounds for rejection of his evidence on the basis
of major contradictions and discrepancies, for the
reason that his presence on the scene stands
established in case it is proved that he suffered the
injury during the said incident.

29. In State of U.P. vs. Kishan Chand, (2004)7 SCC
629, a similar view has been reiterated observing
that the testimony of a stamped witness has its own
relevance and efficacy. The fact that the witness
sustained injuries at the time and place of
occurrence, lends support to his testomony that he
was present during the occurrence. In case the
injured witness is subjected to lengthy cross-
examination and nothing can be elicited to discard
his testimony, it should be relied upon (vide
Krishna vs. State of Haryana, (2006)2 SCC 459).
Thus, we are of the considered opinion that
evidence of Darshan Singh (PW-4) has rightly been
relied upon by the courts below.’

30. The law on the point can be summarized to the
effect that the testimony of the injured witness is
accorded a special status in law. This is as a
consequence of the fact that the injury to the
witness is an inbuilt guarantee of his presence at
the scene of the crime and because the witness will
not want to let this actual assailant go unpunished
merely to falsely implicate a third party for the
commission of the offence. Thus, the deposition of
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the injured witness should be relied upon unless
there are strong grounds for rejection of his
evidence on the basis of major contradictions and
discrepancies therein.”

To the similar effect is the judgment of this Court
in Balraje (supra).”

After all, it is the duty of the court to appreciate, to

scrutinize, to analyze evidence in a manner like separating grain

from the chaff, that means to say separating truth from the

falsehood as has been observed by the Apex Court in Mahavir

Singh v. State of M.P., reported in 2017(1) PLJR 177(SC).

“24. It is the duty of the Apex Court to separate chaff
from the husk and to dredge the truth from the
pandemonium of Statements. It is but natural for
human beings to state variant statements due to time
gap but if such statements go to defeat the core of the
prosecution then such contradictions are material and
the Court has to be mindful of such statements [see:
Tahsildhar Singh vs. State of U.P., AIR 1959 SC 1012;
:Puddu Raja vs. State, (2012)11 SCC 196; State of
U.P. vs. Naresh, (2011)9 SCC 698]. The case in hand
is a fit case, wherein there are material exaggerations
and contradictions, which inevitably raises doubt
which is reasonable in normal circumstances and
keeping in view the substratum of the prosecution
case, we cannot infer beyond reasonable doubt that
the appellant caused the death of the deceased.”

Patna High Court CR. APP (SJ) No.1695 of 2017
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As stated above, the defence could not be able to

challenge the said testimony of P.W.5 doctor with regard to nature

of injury having over the person of the respective injured though,

the report regarding subsequent treatment is not on the record. It is

further evident that the P.O. has been properly substantiated. The

trend of the prosecution evidence as is evident, initially Chandan

Kumar Chaudhary was made an accused claiming to be son of

Ramashray Chaudhary but after investigation the proper

identification of the accused Chandan Kumar Chaudhary, son of

Nathuni Chaudhary has been made, which, as is evident not been

challenged on the score of dock identification. It is further evident

that although, during course of cross-examination, there happens

to be some sort outcoming visible in the evidence of P.W.2 but she

also identified the appellant in dock. Although, the presence of

Chandan Chaudhary in the dock has been put under the mark of

interrogation at the end of P.W.1, but again not been objected.

From the evidence of P.W.1, P.W.2, P.W.3 and P.W.4 it is crystal

clear that the appellant has not claimed, challenged his

identification as one of the accused, irrespective of his status. That

means to say right from the initial stage there happens to be no

challenge at the end of the appellant, nor his status to be an
Patna High Court CR. APP (SJ) No.1695 of 2017
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accused irrespective of some sort of confusion over the parentage

name. More over, his identification is found consistent in the dock.

Now coming on the score of identification, it is evident

that some sort of discrepancy is there, whose name and parentage

of appellant has been exposed, right from the initial version, and

on that very aspect, attention of concerned witness has also been

drawn up.

But, one consistent approach of the witnesses has

completely been overlooked at the end of learned counsel for the

appellant, which is identification before court and on that score,

respective witness has not been tested. How far, identification

before court is to be seen.

In Mahabir v. State of Delhi, reported in (2008)16 SCC

481, it has been held:

“11. We shall deal with the appeal filed by the accused
Mahabir. From the evidence of PW4 it is clear that
after the incident accused Mahabir and Mahesh were
shown to P.W.4 at the time of their arrest. In fact,
police brought many persons for identification of
culprits and identified Mahabir and Mahesh to P.W.4.

She admitted that these two persons were brought to
the hospital. Subsequently, she had identified them in
court. So far as recovery of VCR is concerned, which
was treated as a ground for holding Mahabir and
Jalvir guilty, she accepted that it was not told to her
Patna High Court CR. APP (SJ) No.1695 of 2017
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about recovery of VCR. She was told by the police
that VCR had been recovered after the police persons
had brought Mahabir and Mahesh. Interestingly, she
also accepted that Mahabir and Mahesh were brought
to the hospital where she was asked to identify them.”
In Sheo Shankar Singh v. State of Jharkhand,

reported in (2011) 3 SCC 654, it has been held:

“46. It is fairly well settled that identification of the
accused in the court by the witness constitutes the
substantive evidence in a case although any such
identification for the first time at the trial may more often
than not appear to be evidence of a weak character. That
being so a test identification parade is conducted with a
view to strengthening the trustworthiness of the evidence.
Such a TIP then provides corroboration to the witness in
the court who claims to identify the accused persons
otherwise unknown to him. Test identification parades,
therefore, remain in the realm of investigation.

47. The Code of Criminal Procedure does not oblige the
investigating agency to necessarily hold a test
identification parade nor is there any provision under
which the accused may claim a right to the holding of a
test identification parade. The failure of the investigating
agency to hold a test identification parade does not, in
that view, have the effect of weakening the evidence of
identification in the court. As to what should be the
weight attached to such an identification is a matter
which the court will determine in the peculiar facts and
circumstances of each case. In appropriate cases the court
may accept the evidence of identification in the court
even without insisting on corroboration.

Patna High Court CR. APP (SJ) No.1695 of 2017
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48. The decisions of this Court on the subject are legion.
It is, therefore, unnecessary to refer to all such decisions.
We remain content with a reference to the following
observations made by this Court in Malkhansingh v. State
of M.P. [(2003) 5 SCC 746 : 2003 SCC (Cri) 1247] :
(SCC pp. 751-52, para 7)

“7. It is trite to say that the substantive evidence is
the evidence of identification in court. Apart from
the clear provisions of Section 9 of the Evidence
Act, the position in law is well settled by a catena
of decisions of this Court. The facts, which
establish the identity of the accused persons, are
relevant under Section 9 of the Evidence Act. As a
general rule, the substantive evidence of a witness
is the statement made in court. The evidence of
mere identification of the accused person at the
trial for the first time is from its very nature
inherently of a weak character. The purpose of a
prior test identification, therefore, is to test and
strengthen the trustworthiness of that evidence. It
is accordingly considered a safe rule of prudence
to generally look for corroboration of the sworn
testimony of witnesses in court as to the identity of
the accused who are strangers to them, in the form
of earlier identification proceedings. This rule of
prudence, however, is subject to exceptions, when,
for example, the court is impressed by a particular
witness on whose testimony it can safely rely,
without such or other corroboration. The
identification parades belong to the stage of
investigation, and there is no provision in the Code
of Criminal Procedure which obliges the
Patna High Court CR. APP (SJ) No.1695 of 2017
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investigating agency to hold, or confers a right
upon the accused to claim a test identification
parade. They do not constitute substantive
evidence and these parades are essentially
governed by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification
parade would not make inadmissible the evidence
of identification in court. The weight to be
attached to such identification should be a matter
for the courts of fact. In appropriate cases it may
accept the evidence of identification even without
insisting on corroboration. (See Kanta Prashad v.
Delhi Admn. [AIR 1958 SC 350 : 1958 Cri LJ 698]
, Vaikuntam Chandrappa v. State of A.P. [AIR
1960 SC 1340 : 1960 Cri LJ 1681] , Budhsen v.

State of U.P. [(1970) 2 SCC 128 : 1970 SCC (Cri)
343] and Rameshwar Singh v. State of JK
[(1971) 2 SCC 715 : 1971 SCC (Cri) 638] .)”

49. We may also refer to the decision of this Court in
Pramod Mandal v. State of Bihar [(2004) 13 SCC 150 :
2005 SCC (Cri) 75] where this Court observed: (SCC p.
158, para 20)

“20. It is neither possible nor prudent to lay down
any invariable rule as to the period within which a
test identification parade must be held, or the
number of witnesses who must correctly identify
the accused, to sustain his conviction. These
matters must be left to the courts of fact to decide
in the facts and circumstances of each case. If a
rule is laid down prescribing a period within which
the test identification parade must be held, it
would only benefit the professional criminals in
Patna High Court CR. APP (SJ) No.1695 of 2017
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whose cases the arrests are delayed as the police
have no clear clue about their identity, they being
persons unknown to the victims. They, therefore,
have only to avoid their arrest for the prescribed
period to avoid conviction. Similarly, there may be
offences which by their very nature may be
witnessed by a single witness, such as rape. The
offender may be unknown to the victim and the
case depends solely on the identification by the
victim, who is otherwise found to be truthful and
reliable. What justification can be pleaded to
contend that such cases must necessarily result in
acquittal because of there being only one
identifying witness? Prudence therefore demands
that these matters must be left to the wisdom of the
courts of fact which must consider all aspects of
the matter in the light of the evidence on record
before pronouncing upon the acceptability or
rejection of such identification.”

50. The decision of this Court in Malkhansingh case
[(2003) 5 SCC 746 : 2003 SCC (Cri) 1247] and Aqeel
Ahmad v. State of U.P. [(2008) 16 SCC 372 : (2010) 4
SCC (Cri) 11] adopt a similar line of reasoning.”

In State of Rajasthan vs. Daud Khan, reported in

(2016) 2 SCC 607, it has been held:

“44. That apart, it was recently held in Ashok Debbarma
v. State of Tripura [Ashok Debbarma v. State of Tripura,
(2014) 4 SCC 747 : (2014) 2 SCC (Cri) 417] that while
the evidence of identification of an accused at a trial is
admissible as a substantive piece of evidence, it would
depend on the facts of a given case whether or not such a
Patna High Court CR. APP (SJ) No.1695 of 2017
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piece of evidence could be relied upon as the sole basis
for conviction of an accused. It was held that if the
witnesses are trustworthy and reliable, the mere fact that
no TIP was conducted would not, by itself, be a reason
for discarding the evidence of those witnesses. In arriving
at this conclusion, this Court relied upon a series of
decisions. [Kanta Prashad v. Delhi Admn., AIR 1958 SC
350 : 1958 Cri LJ 698; Harbajan Singh v. State of JK,
(1975) 4 SCC 480 : 1975 SCC (Cri) 545; Jadunath Singh
v. State of U.P., (1970) 3 SCC 518 : 1971 SCC (Cri) 124;
George v. State of Kerala, (1998) 4 SCC 605 : 1998 SCC
(Cri) 1232; Dana Yadav v. State of Bihar, (2002) 7 SCC
295 : 2002 SCC (Cri) 1698] Earlier, a similar view was
expressed in Manu Sharma v. State (NCT of Delhi)
[Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 :
(2010) 2 SCC (Cri) 1385, paras 255, 258] .

In Mukesh Anr. v. State (NCT Delhi) ors.,

reported in (2017) 6 SCC 1, it has been held:

“144. In Malkhansingh v. State of M.P. [Malkhansingh v.

State of M.P., (2003) 5 SCC 746 : 2003 SCC (Cri) 1247] ,
it has been held thus: (SCC pp. 751-52, para 7)

“7. … The identification parades belong to the
stage of investigation, and there is no provision in
the Code of Criminal Procedure which obliges the
investigating agency to hold, or confers a right
upon the accused to claim a test identification
parade. They do not constitute substantive
evidence and these parades are essentially
governed by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification
parade would not make inadmissible the evidence
Patna High Court CR. APP (SJ) No.1695 of 2017
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of identification in court. The weight to be
attached to such identification should be a matter
for the courts of fact. …”

And again: (SCC p. 755, para 16)

“16. It is well settled that the substantive evidence
is the evidence of identification in court and the
test identification parade provides corroboration to
the identification of the witness in court, if
required. However, what weight must be attached
to the evidence of identification in court, which is
not preceded by a test identification parade, is a
matter for the courts of fact to examine. …”143. In
Santokh Singh v. Izhar Hussain [Santokh Singh v.
Izhar Hussain, (1973) 2 SCC 406 : 1973 SCC
(Cri) 828] , it has been observed that the
identification can only be used as corroborative of
the statement in court.

145. In this context, reference to a passage from
Visveswaran v. State [Visveswaran v. State, (2003) 6 SCC
73 : 2003 SCC (Cri) 1270] would be apt. It is as follows:
(SCC p. 78, para 11)

“11. … The identification of the accused either in test
identification parade or in Court is not a sine qua non in
every case if from the circumstances the guilt is
otherwise established. Many a time, crimes are
committed under the cover of darkness when none is able
to identify the accused. The commission of a crime can
be proved also by circumstantial evidence. …”

146. In Manu Sharma v. State (NCT of Delhi) [Manu
Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 : (2010)
2 SCC (Cri) 1385] , the Court, after referring to Munshi
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40/44

Singh Gautam v. State of M.P. [Munshi Singh Gautam v.
State of M.P., (2005) 9 SCC 631 : 2005 SCC (Cri) 1269] ,
Harbajan Singh v. State of JK [Harbajan Singh v. State
of JK, (1975) 4 SCC 480 : 1975 SCC (Cri) 545] and
Malkhansingh [Malkhansingh v. State of M.P., (2003) 5
SCC 746 : 2003 SCC (Cri) 1247] , came to hold that the
proposition of law is quite clear that even if there is no
previous TIP, the court may appreciate the dock
identification as being above board and more than
conclusive.

147. In the case at hand, the informant, apart from
identifying the accused who had made themselves
available in the TIP, has also identified all of them in
court. On a careful scrutiny of the evidence on record, we
are of the convinced opinion that it deserves acceptance.
Therefore, we hold that TIP is not dented.”

In Prakash vs. State of Karnataka, reported in (2014)

12 SCC 133, it has been held:

“15. An identification parade is not mandatory [Ravi
Kapur v. State of Rajasthan, (2012) 9 SCC 284 : (2012) 4
SCC (Civ) 660 : (2012) 3 SCC (Cri) 1107] nor can it be
claimed by the suspect as a matter of right. [R. Shaji v.
State of Kerala, (2013) 14 SCC 266 : (2014) 4 SCC (Cri)
185] The purpose of pre-trial identification evidence is to
assure the investigating agency that the investigation is
going on in the right direction and to provide
corroboration of the evidence to be given by the witness
or victim later in court at the trial. [Rameshwar Singh v.
State of JK, (1971) 2 SCC 715 : 1971 SCC (Cri) 638] If
the suspect is a complete stranger to the witness or
victim, then an identification parade is desirable [Mulla v.

Patna High Court CR. APP (SJ) No.1695 of 2017
41/44

State of U.P., (2010) 3 SCC 508 : (2010) 2 SCC (Cri)
1150; Kishore Chand v. State of H.P., (1991) 1 SCC 286 :
1991 SCC (Cri) 172] unless the suspect has been seen by
the witness or victim for some length of time. [State of
U.P. v. Boota Singh, (1979) 1 SCC 31 : 1979 SCC (Cri)
115] In Malkhansingh v. State of M.P. [(2003) 5 SCC 746
: 2003 SCC (Cri) 1247] it was held: (SCC pp. 751-52,
para 7)

“7. … The identification parades belong to the
stage of investigation, and there is no provision in
the Code of Criminal Procedure which obliges the
investigating agency to hold, or confers a right
upon the accused to claim a test identification
parade. They do not constitute substantive
evidence and these parades are essentially
governed by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification
parade would not make inadmissible the evidence
of identification in court. The weight to be
attached to such identification should be a matter
for the courts of fact.”

16. However, if the suspect is known to the witness or
victim [Jadunath Singh v. State of U.P., (1970) 3 SCC
518 : 1971 SCC (Cri) 124] or they have been shown a
photograph of the suspect or the suspect has been
exposed to the public by the media [R. Shaji v. State of
Kerala, (2013) 14 SCC 266 : (2014) 4 SCC (Cri) 185] no
identification evidence is necessary. Even so, the failure
of a victim or a witness to identify a suspect is not always
fatal to the case of the prosecution. In Visveswaran v.
State [(2003) 6 SCC 73 : 2003 SCC (Cri) 1270] it was
held: (SCC p. 78, para 11)
Patna High Court CR. APP (SJ) No.1695 of 2017
42/44

“11. … The identification of the accused either in a
test identification parade or in court is not a sine
qua non in every case if from the circumstances
the guilt is otherwise established. Many a time,
crimes are committed under the cover of darkness
when none is able to identify the accused. The
commission of a crime can be proved also by
circumstantial evidence.”

In Suraj Pal vs. State of Haryana, reported in (1995)2

SCC 64, it has been held:

“14. ———- It may be pointed out that the holding of
identification parades has been in vogue since long in the
past with a view to determine whether an unknown
person accused of an offence is really the culprit or not,
to be identified as such by those who claimed to be the
eyewitnesses of the occurrence so that they would be able
to identify the culprit if produced before them by
recalling the impressions of his features left on their
mind. That being so, in the very nature of things, the
identification parade in such cases serves a dual purpose.
It enables the investigating agency to ascertain the
correctness or otherwise of the claim of those witnesses
who claimed to have seen the offender of the crime as
well as their capacity to identify him and on the other
hand it saves the suspect from the sudden risk of being
identified in the dock by such witnesses during the course
of the trial. This practice of test identification as a mode
of identifying an unknown person charged of an offence
is an age-old method and it has worked well for the past
several decades as a satisfactory mode and a well-

founded method of criminal jurisprudence. It may also be
Patna High Court CR. APP (SJ) No.1695 of 2017
43/44

noted that the substantive evidence of identifying witness
is his evidence made in the court but in cases where the
accused person is not known to the witnesses from before
who claimed to have seen the incident, in that event
identification of the accused at the earliest possible
opportunity after the occurrence by such witnesses is of
vital importance with a view to avoid the chance of his
memory fading away by the time he is examined in the
court after some lapse of time.”

In Dana Yadav @ Dahu ors. vs. State of Bihar,

reported in (2002)7 SCC 295, it has been held:

“38. (e) Failure to hold test identification parade does not
make the evidence of identification in court inadmissible,
rather the same is very much admissible in law, but
ordinarily identification of an accused by a witness for
the first time in court should not form the basis of
conviction, the same being from its very nature inherently
of a weak character unless it is corroborated by his
previous identification in the test identification parade or
any other evidence. The previous identification in the test
identification parade is a check valve to the evidence of
identification in court of an accused by a witness and the
same is a rule of prudence and not law.”

In Hari Kishan v. Sukhbir Singh ors., reported in

AIR 1988 SC 2127, it has been observed:

The question of intention to kill or knowledge of the

death in terms of Section 307 I.P.C. is a question of fact and not

one of law. It would all depend on the facts of the given case. It is
Patna High Court CR. APP (SJ) No.1695 of 2017
44/44

not at all governed by the nature of injury. What is material to

attract the provisions of Section 307 I.P.C. is guilty intention or

knowledge with which all was done irrespective of its result. The

intention and knowledge are matters of interference from the

totality of the circumstances and cannot be measured merely from

the result.

Presence of the appellant alongwith Bambam inside the

house having duly armed in the night and then giving

indiscriminate blow over the person of the respective injured side

by side also giving firearm injury over the person of P.W.3 by his

associate, speaks a lot with regard to intention of the accused in

predetermined manner and that being so, the judgment of

conviction and order of sentence recorded by the learned lower

court did not attract interference. Consequent thereupon, this

appeal sans merit and is accordingly, dismissed. The appellant is in

custody which he will remain till saturation of period of sentence.

(Aditya Kumar Trivedi, J)

Surendra/-

AFR/NAFR NAFR
CAV DATE 04.07.2019
Uploading Date 16.10.2019
Transmission Date 16.10.2019

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