Manjhi & Ors Vs. State of Bihar  Insc
204 (15 April 2002)
Shah, B.N. Agrawal & Arijit Pasayat Shah, J.
Appeal (crl.) 765 of 2001
gruesome carnage, 35 persons lost their lives, some houses/huts were burnt, number
of persons were injured and in that case charge-sheet was submitted against 119
persons. Out of them, 13 were tried by the Designated Court of Sessions Judge, Gaya
in G.R. Case No.430 of 1992, Tekari Police Station Case No.19 of 1992 under the
provisions of Terrorist and Disruptive Activities (Prevention) Act, 1987
(hereinafter referred to as "TADA Act") and under Section 302/149 of
Indian Penal Code (hereinafter referred to as "IPC").
recording the evidence, by judgment and order dated 8.6.2001, the Designated Court
A-1 Nanhe Yadav @ Dina Yadav, A-10 Nanhak Teli, A-11 Naresh Chamar and A-12 Ramashish
A-5 Veer Kuer Paswan, A-8 Krishna Mochi, A-9 Dharmendra Singh @ Dharu Singh,
A-13 Nanhe Lal Mochi and sentenced to death;
A-2 Bihari Manjhi, A-4 Ramautar Dusadh @ Lakhan Dusadh, A-6 Rajendra Paswan,
A-7 Wakil Yadav and imposed life imprisonment;
A-3 Ravindra Singh and imposed RI for ten years. He has not filed any appeal.
Manjhi, A-4 Ramautar Dusadh @ Kakhan Dusadh, A-7 Wakil Yadav have filed
Criminal Appeal No.752 of 2001; A-6 Rajendra Paswan has filed Criminal Appeal
No.765 of 2001; A-5 Veer Kuer Paswan, A-8 Krishna Mochi, A-9 Dharmendra Singh @
Dharu Singh, A-13 Nanhe Lal Mochi have preferred Criminal Appeal No.761 of 2001
and also there is a Death Reference Case No.1 of 2001 against A-5 Veer Kuer Paswan,
A-8 Krishna Mochi, A-9 Dharmendra Singh @ Dharu Singh, A-13 Nanhe Lal Mochi.
this judgment and order, we are disposing of Criminal Appeal No.752 of 2001 and
Criminal Appeal No.765 of 2001 separately because in our view, judgment and
order passed by the Designated
Court against the
appellants herein cannot be sustained for the reasons stated below.
The Designated Court convicted the aforesaid four accused
only on the basis of the confessional statement Ex.2 dated 27.2.1992 of A-2 Bihari
Manjhi. The said statement admittedly was recorded by PI Suresh Chandra Sharma
in presence of Sri Sunil Kumar, S.P. Gaya, and Birendra Kumar Singh O/C Bodh Gaya Police Station. The Designated Court held that the
confessional statement of Bihari Manjhi was recorded by the Superintendent of
Police and in his inculpatory statement he has named A-4, A-6 and A-7 as
participants and since confessional statement is admissible, there is no reason
to disbelieve the same and, therefore, the participation of all accused in the
carnage is well proved. Thereafter, the Court observed that A-6 was named as
participant by PW6 and PW7 and this gets corroboration from their statement under
Section 161 Cr.P.C. recorded by the Police. No doubt, the learned Judge
hastened to add that as the witnesses were terrorised, they have evaded either
to name or to identify them in the court but on the basis of the confessional
statement he held them guilty and convicted them under Section 3(1) of the TADA
Act and also for the offence punishable under Section 302/149 IPC and sentenced
them to suffer life imprisonment. The Court also negatived the submission made
by the learned counsel for the accused that in the statement recorded under
Section 313 Cr.P.C. accused Bihari Manjhi A-2 has denied to have made any such
statement before Superintendent of Police, by holding that on each page of
confessional statement there is signature of A-2 Bihari Manjhi and, therefore,
there is no reason to disbelieve the evidence of Superintendent of Police.
view, in the facts of the present case, it would be difficult to hold that the
confessional statement recorded by Police Inspector, who went there for
apprehending the accused, can be considered to be confessional statement
recorded under Section 15 of the TADA Act even though it was recorded in
presence of Superintendent of Police.
statement was recorded by the police officers in presence of the police party
at night time at about 2.30
a.m. between 26th and 27th February, 1992 in the light of the jeep as there
was no other light available.
admittedly, the statement was not sent to the Chief Judicial Magistrate as
required under Rule 15 of the TADA Rules.
statement was produced for the first time before the Designated Court on 21.3.1997 which was allegedly
kept in the police diary.
with this contention, the Designated Court
held that the procedure prescribed under the Rules was directory. In our view,
even though this Court has held the procedure prescribed under Rule 15 as directory,
that would not mean that Investigating Officer is not required to follow the
said procedure. He has to follow the said procedure. If there is delay in sending
the statement, the Court would consider its evidentiary value by weighing other
evidence brought on record by the prosecution. It is to be stated that in our
country under Constitution, there is separation of judiciary from executive and
if lapses on the part of the Investigating Officer are condoned and such
statements are used for convicting the accused then the liberty of the citizens
would not be safe. It appears that instead of collecting any material or
evidence for connecting these accused with the crime, investigating agency has
adopted unjustified method.
PW2 Sunil Kumar, Superintendent of Police, in whose presence the statement was
recorded, as well as PW17 Suresh Chander Sharma who recorded the said statement
have not identified A-1 Bihari Manjhi before the Court. This would throw a
serious doubt with regard to the said confessional statement being recorded by
PW17 and putting of signatures by A-2 Bihari Manjhi on the same.
is no other evidence so far as co-accused appellants are concerned despite the
fact that accused are residents of same village where occurrence took place and
no other prosecution witnesses have identified them as the persons present at
the scene of offence nor there is any recovery alleged to have been made from
them or at their instance. In the aforesaid circumstances and for the
infirmities, we are in agreement with the submission of learned counsel
appearing for the accused-appellants that the said confessional statement ought
not to have been relied upon by the court for convicting the accused-
result, Criminal Appeal No.752 of 2001filed by A-2 Bihari Manjhi, A-4 Ramautar Dusadh
@ Lakhan Dusadh, A-7 Wakil Yadav and Criminal Appeal No.765 of 2001 filed by
A-6 Rajendra Paswan are allowed and the judgment and order convicting the
appellants is set aside and they are acquitted of the offences for which they
were charged and it is ordered that they be released forthwith, if not required
in any other case.
PASAYAT) April 15, 2002.