Section 396 IPC = The second aspect is the lack of recovery and identification of stolen articles. It is already mentioned above that the recovery of the stolen article was limited to one dhoti, a blouse and a nose stud. These articles were recovered from Maheshwar Singh which have been identified only by PW-10 (Gita Devi), PW-12 (Indu Devi) and PW-4 (Uday Nath Jha). Although, number of witnesses including the family members witnessed the aforesaid dacoity, only three persons could individually identify three different objects separately which this Court finds suspicious to believe in. This Court in the light of facts and circumstances cannot lend any credibility to the alleged allegations regarding dacoity.; he was aware of presence of PW-1 during the incident but he failed to mention his name in the FIR. Such non-mentioning of presence of PW-1, who was a material witness in this case, creates further suspicion on the hypothesis portrayed by the prosecution. ; the informant (PW-9) was aware of the names of dacoits who had killed the deceased but failed to name them in the FIR. In this context we may note that the incident is alleged to have taken place in the intervening night of 21st-22nd April, 1999, whereas the FIR came to be registered at 3.15 a.m., after a lapse of 3 hours. Despite sufficient time for the informant to gather necessary 9 information, which he did, the names of two accused respondents have conspicuously been missing, which also formed an additional factor for the High Court to acquit accused respondents Although we accept that FIR need not be an encyclopedia of the crime, but absence of certain essential facts, which were conspicuously missing in the present FIR, point towards suspicion that the crime itself may be staged.; We also do not find any justification to reverse the finding given by the High Court relating to juvenility of Mintu Kumar @ Mintu Singh. On facts, on re-appreciation of the material on record, the High Court concluded that Mintu Kumar @ Mintu Singh was less than 18 years of age. The record reveals that he was directed to be examined by a Medical Board by the High Court during the course of hearing. The report of the Medical Board discloses that he was 20-22 years of age as on 22.04.2006. This conclusion arrived at by the Medical Board was based on radiological findings. The date of occurrence was 22.04.1999, which means that Mintu Kumar @ Mintu Singh was below 18 years of age as on the date of incident.

1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 94-97 OF 2013
AMAR NATH JHA ….Appellants
Versus
NAND KISHORE SINGH & ETC. …..Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
The judgment and order dated 11.1.2008 passed by the High
Court of Judicature at Patna in Death Reference No.7/2005 along with
Criminal Appeal No. 622/2005 and Criminal Appeal No. 643/2005,
whereby the High Court answered the death reference in the negative
and set aside the judgment of the Sessions Court convicting the
accused-Nand Kishore Singh and Maheshwar Singh for the offences
under Section 396 IPC is called in question in these appeals. By the
very judgment, the High Court also set aside the conviction of
Maheshwar Singh under Section 412 of IPC and Criminal Appeal
No.763/2005 filed by Mintu Kumar @ Mintu Singh was remanded for
2
consideration by Juvenile Justice Board constituted to deal with
juveniles under the provisions of Juvenile Justice (Care & Protection of
Children) Act, 2000. These appeals are not only relating to acquittal of
Nand Kishore Singh and Maheshwar Singh but also relate to the
finding arrived at by the High Court that Mintu Kumar @ Mintu Singh
was a juvenile at the time of commission of offence in question.
2. The case of the prosecution in brief is that in the intervening
night between 21st-22nd April, 1999 at about 12.00, about 30-40
unknown persons committed dacoity in the house of informant (PW9)
and also in the adjoining house of his uncle-Madhukant Jha
(deceased). The dacoits looted away gold chains, gold ring, bicycle and
other household articles and cash from the two houses. In the course
of dacoity, the dacoits fired gun shot towards Madhukant Jha aged
about 75 years who died immediately thereafter due to gun shot
injuries sustained. The dacoits were young and of different
complexion; they fled away from the scene after committing the
dacoity and murder. The first informant (PW9) was the eye-witness of
the incident. Immediately, after the accused fled away from the scene,
the informant came to know about the dacoity in the house of his
uncle Madhukant Jha (deceased) and that he died due to shots fired
at him; he came to the house of Madhukant Jha and saw his uncle
lying dead. Ishwar Nath Jha (PW8) and Gena Ram (PW 7) also had
sustained injuries because of the assault by the dacoits using stick
3
and bamboos. One of the dacoit was armed with gun and other dacoits
were armed with lathis, bamboo, country made pistol and stick in
their hands. While fleeing, the dacoits had exploded the bomb
consequent upon which Gena Ram (PW 7) was injured. The first
information did not specify any of the names of the dacoits. The
informant claimed that himself and the family members of his uncle
(deceased) could identify the dacoits who looted the articles. The first
information was lodged at 3.15 am on 22.4.1999 at the place of
incidence, i.e., Bhau Chapra after due consultation with all family
members of deceased and others. The police official of P.S. Meenapur
(district Muzaffarpur) recorded the first information.
3. After the investigation, police laid the charge-sheet against only
four persons for the offences punishable under Section 396 and 412 of
IPC. For the very offences, four accused including the respondents
were tried. The Trial Court on evaluation of the material on record
convicted the three accused namely, Nand Kishore Singh, Mintu Singh
and Maheshwar Singh for the offences punishable under Section 396
IPC, the accused-Maheshwar Singh was also convicted under Section
412 IPC; whereas the another accused, i.e., Ramesh Singh, was
acquitted with respect to both offences. The Sessions Court sentenced
the accused-Nand Kishore Singh to death punishment and sentenced
the other two convicted accused for imprisonment for life under
4
Section 396 IPC. No separate sentence was awarded against the
accused-Maheshwar Singh for the offence under Section 412 IPC.
4. The convicted accused filed appeals questioning the judgment
and order of conviction and the same came to be allowed by the
impugned judgment in so far as two accused-Nand Kishore Singh and
Maheshwar Singh were concerned. Consequently, the judgment and
order of conviction and sentence imposed upon them was set aside. So
far as Mintu Kumar @ Mintu Singh is concerned, the High Court
confirmed the judgment of conviction passed by the Trial Court;
however, since it was found that Mintu Kumar @ Mintu Singh was
juvenile on the date of the offence and he was given benefit of Section
7A of Juvenile Justice Act (Care & Protection of Children) Act, 2000,
as amended in 2006, his case was forwarded to the Board constituted
to deal with the Juvenile Justice (Care & Protection of Children) Act,
2000, with the direction to pass appropriate orders in respect of Mintu
Kumar @ Mintu Singh.
5. Before proceeding on merits of the matter, it is pertinent to note
that the State has not filed an appeal against the acquittal of the
respondents-Nand Kishore Singh and Maheshwar Singh. The original
informant-Amar Nath Jha had lodged the special leave petitions. When
the matters were posted before the Court on 08.07.2011, the first
informant sought permission to withdraw the special leave petitions
5
though by then this Court had granted permission to him to file
special leave petitions on 09.01.2009. This Court was pleased to reject
the prayer of informant to withdraw the special leave petitions by
observing that the proceedings in the criminal case, especially of this
nature cannot depend on the whims of the informant. Since the
informant was not interested to pursue the appeals, Mr. Himanshu
Munshi, advocate, was appointed as an amicus curiae to pursue the
appeals. Further, two accused mentioned supra though were served
with the notice, remained absent; hence in compliance of the
directions of this Court, the Supreme Court Legal Services Committee
appointed Ms. Nidhi, Advocate as amicus curiae, and on her behalf
Smt. Kiran Suri, Senior Advocate assisted the court on behalf of the
unrepresented accused. Heard the learned advocate appearing on
behalf of the State and both amici curiae and perused the records. On
going through the material on record and after hearing we find that
the Division Bench of the High Court has answered each and every
point on which the Trial Court had convicted the accused. The High
Court has given detailed reasons to acquit and as to how and why the
case of the prosecution as made out before the Court is unbelievable,
in so far as the respondents are concerned.
6. Having perused the documents available on record and having
heard the contentions of learned advocates appearing on behalf of
both parties, we are of the considered opinion that three essential
6
aspects of this case are to be concentrated which may indicate
whether the prosecution was able to prove the case beyond reasonable
doubts.
7. The first aspect, we need to consider is that the inadequacy of
Test Identification Parade [hereinafter referred as ‘TIP’ for brevity] has
been conducted herein. Though it is a case of the prosecution that the
dacoits were armed with a gun, the country made pistol, lathis and
bamboos etc., but none of these weapons were recovered from the
accused persons except a piece of dhoti, blouse and nose stud, other
articles alleged to have been stolen by the dacoits were not recovered.
It is borne out of the record that the accused-Nand Kishore Singh and
Maheshwar Singh were not subjected to T.I.P. The only person who
was subjected to T.I.P. was a minor (Mintu Singh). It may be of some
relevance to note that aforesaid Mintu Singh who has identified during
the T.I.P. was referred to Juvenile Justice Board, as he was found to
be a Juvenile. In this context we may note that in cases like present
one T.I.P. acquires significance and lack of conduction of the same
cannot be ignored. It is well settled that non-conduction of T.I.P. may
not itself be fatal to the prosecution case but certainly it must be
weighed in by the Court while considering the facts and circumstances
of each case. [See: Kanta Prashad V. Delhi Administration, 1958
CrilJ 698 and Vaikuntam Chandrappa & Ors. V. State of Andhra
Pradesh, AIR 1960 SC 1340].
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8. On a different note we may notice that PW-7 (Gena Ram) who
was one of the injured witnesses on account of the bomb thrown by
the dacoits, has himself not identified any of the dacoits. It is indeed
suspicious to note that the injured witness deposed that he arrived at
the place of occurrence only after dacoits managed to run away. PW-9
(the informant) has also failed to identify any of the dacoits. It may not
be out of context to note that even PW-10 and PW-12, PW-8 and PW-4
have equivocally have failed to identify or recognize the said dacoits.
This factor was considered by the High Court which may be noted
from the impugned judgment.
9. The second aspect is the lack of recovery and identification of
stolen articles. It is already mentioned above that the recovery of the
stolen article was limited to one dhoti, a blouse and a nose stud.
These articles were recovered from Maheshwar Singh which have been
identified only by PW-10 (Gita Devi), PW-12 (Indu Devi) and PW-4
(Uday Nath Jha). Although, number of witnesses including the family
members witnessed the aforesaid dacoity, only three persons could
individually identify three different objects separately which this Court
finds suspicious to believe in. This Court in the light of facts and
circumstances cannot lend any credibility to the alleged allegations
regarding dacoity.
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10. The third circumstance which we need to concentrate concerns
non-reporting of essential facts which were known to the informant in
the FIR. The High Court while appreciating the entire materials on
record has affirmatively concluded that PW-1, 2, 3, 4, 8, 10 & 12
belong to the same family of the deceased and reside in the same
house. It may be of some significance to note that PW-9 (the
informant) of this case is the nephew of deceased who lives in an
adjacent house to that of the deceased. In the FIR, PW-9 has failed to
mention the name of PW-1, is a significant person as per the
prosecution as he had allegedly identified the accused-Nand Kishore
Singh and Maheshwar Singh, who were the dacoits responsible for the
aforesaid crime. It has come out from the cross-examination of PW-9
that he was aware of presence of PW-1 during the incident but he
failed to mention his name in the FIR. Such non-mentioning of
presence of PW-1, who was a material witness in this case, creates
further suspicion on the hypothesis portrayed by the prosecution. The
High Court on appreciation of detailed evidence has for the right
reasons concluded that the informant (PW-9) was aware of the names
of dacoits who had killed the deceased but failed to name them in the
FIR. In this context we may note that the incident is alleged to have
taken place in the intervening night of 21st-22nd April, 1999, whereas
the FIR came to be registered at 3.15 a.m., after a lapse of 3 hours.
Despite sufficient time for the informant to gather necessary
9
information, which he did, the names of two accused respondents
have conspicuously been missing, which also formed an additional
factor for the High Court to acquit accused respondents. Although we
accept that FIR need not be an encyclopedia of the crime, but absence
of certain essential facts, which were conspicuously missing in the
present FIR, point towards suspicion that the crime itself may be
staged.
11. Further it is also relevant to note that the names of the
respondents were very well known to the family of the first informant
as well as the family of the deceased. It has also come on record that
there was animosity between these two accused and the family of the
deceased in respect to certain matters. In this context, learned amicus
curiae may be justified in arguing that there is every likelihood that
the accused might have been falsely implicated.
12. The last aspect which we need to concern ourselves is the scope
of the appellate jurisdiction in this case when High Court has
acquitted the concerned accused respondents. It is well settled that
the appellate courts cannot upset an order of acquittal in a casual
manner when there are two possibilities of view which can be taken
from the evidences on record. On an entire perusal of the testimonies
of the witnesses and other evidences on record, we find that the High
Court has reasonably taken its view as the prosecution was not able to
10
explain and prove certain missing links in the alleged offence of
dacoity. In the light of facts and circumstances of the case it is not
appropriate or proper to convert an order of acquittal into conviction,
even though the trial court on an erroneous basis had convicted the
respondents accused to death penalty.
13. The judgment and order of acquittal does not deserve
interference inasmuch as the view taken by the High Court while
acquitting the accused can be said to be a possible view under the
facts of the case. On the other hand, having regard to the material on
record, we are of the opinion that the High Court has taken the only
view which is possible in the facts and circumstances of the case.
14. We also do not find any justification to reverse the finding given
by the High Court relating to juvenility of Mintu Kumar @ Mintu
Singh. On facts, on re-appreciation of the material on record, the
High Court concluded that Mintu Kumar @ Mintu Singh was less than
18 years of age. The record reveals that he was directed to be
examined by a Medical Board by the High Court during the course of
hearing. The report of the Medical Board discloses that he was 20-22
years of age as on 22.04.2006. This conclusion arrived at by the
Medical Board was based on radiological findings. The date of
occurrence was 22.04.1999, which means that Mintu Kumar @ Mintu
Singh was below 18 years of age as on the date of incident. There is
11
no contrary material on record for taking different view that has been
expressed by the Medical Board which is consisted of three doctors
including Civil Surgeon-cum-Chief Medical Officer, Muzaffarpur.
Hence, the appeal questioning the order holding that Mintu Kumar @
Mintu Singh was a juvenile is also liable to be dismissed and is
accordingly dismissed.
15. Since, we find that the High Court has appreciated every aspect
of the matter on facts and has considered the entire material on record
while acquitting the accused and since we do not have any material to
disagree with the reasons assigned and the conclusion arrived at by
the High Court, we decline to interfere with the impugned judgment
and accordingly the appeals fail and stand dismissed.
……………………………………J.
(N.V. Ramana)
……………………………………..J.
(Mohan M. Shantanagoudar)
New Delhi
August 03, 2018