Failure to Conduct Test Identification Parade (TIP) is Fatal Where Identification Happens After a Year of the Incident: Patna High Court Overturns Conviction in Double Murder

Patna High Court overturned the conviction of eight individuals accused of conspiracy and murder of two engineers in the Baheri-Bahera road construction project. The appellants were acquitted of all charges under Sections 302, 387/109, 386/116, and 120B of the IPC and Section 27(2) of the Arms Act. The Court cited significant evidentiary flaws, including reliance on single dock identification without a prior Test Identification Parade (TIP), inadmissibility of call detail records (CDRs) under Section 65B of the Indian Evidence Act, and procedural lapses in the investigation.

The case arose out of the killings of Mukesh Kumar and Brajesh Kumar, engineers working for BSC C&C JV, a construction company awarded the Baheri-Bahera road project. On December 26, 2015, four assailants allegedly fired at the engineers at the construction site, resulting in their deaths. Pamphlets naming two alleged militia leaders, Mukesh Pathak and Vikash Jha, were left at the scene, suggesting extortion as the motive.

The appellants were convicted by the Additional Sessions Judge-V, Darbhanga, in February 2018 and sentenced to life imprisonment. The appellants challenged the verdict, arguing that the evidence was riddled with procedural lapses, contradictions, and a lack of substantive corroboration.

The prosecution relied on the testimony of Dhiraj Singh (P.W. 15), who identified the accused during the trial, over a year after the incident, without participating in a prior TIP.

The Court observed: "The evidence of mere identification of the accused at the trial for the first time, from its very nature, is inherently of weak character. Failure to conduct TIP was fatal, particularly as the witness had the opportunity to see the accused in court hearings prior to identification."

Citing Malkhan Singh & Ors. v. State of M.P. (2003) 5 SCC 746, the Court emphasized that TIP ensures trustworthiness, especially in cases involving strangers. In this instance, the absence of TIP coupled with doubts about P.W. 15’s presence at the crime scene cast serious doubts on the identification.

The recovery of weapons allegedly used in the murders, based on the confession of appellant Mukesh Pathak, was another pillar of the prosecution's case. The recovered weapons included an AK-56 rifle and a pistol. However, the Court noted a lack of evidence establishing the accused's authorship of concealment or possession of the weapons.

The Court stated: "Recovery becomes incriminating not because of the recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime, which actually lies in the authorship of concealment."

The Court further cited Pullukuri Kotaya v. Emperor AIR (1947) PC 67, emphasizing that mere discovery of facts under Section 27 is insufficient unless linked directly to the accused.

The prosecution attempted to establish a conspiracy using CDRs purportedly showing communication between the accused. However, the Court found that the required certification under Section 65B of the Evidence Act was absent, rendering the CDRs inadmissible.

The Court observed: "The prosecution relied on call detail records but failed to provide the requisite certification by the nodal officer of the service provider, as mandated under Section 65B of the Evidence Act."

This rendered the evidence legally inadmissible, further weakening the conspiracy allegations.

The prosecution claimed the appellants were associated with the Bihar People’s Liberation Army, an alleged extortion militia. The Court, however, noted that the slogans raised at the crime scene and the pamphlets lacked evidentiary value under Sections 62-67 of the Evidence Act. No direct evidence connected the appellants to the conspiracy, and the circumstantial evidence failed to meet the standard of proof.

The Court stated: "While criminal conspiracy is usually proved through circumstantial evidence, the prosecution must establish its case beyond reasonable doubt. The evidence presented here does not exclude the possibility of others committing the crime."

No credible eyewitnesses were examined. The key witness (P.W. 15) failed to identify the accused in earlier statements.
The FIR exhibited interpolation and delay in submission before the Magistrate.

The forensic analysis of the recovered weapons lacked transparency and corroborative material, such as photographs of microscopic comparisons.
The Court stressed that reliance on weak evidence and conjecture is insufficient for conviction.

The Court emphasized the principle that suspicion, no matter how strong, cannot replace proof. It concluded that the prosecution failed to meet the burden of proof, necessitating the appellants' acquittal.

"The appellants may have been associated amongst themselves, and there could be a strong possibility of their involvement, but the law does not permit punishment on moral conviction or suspicion alone."

The appeals were allowed, and all appellants were acquitted of charges under Sections 302, 387/109, 386/116, 120B IPC, and Section 27(2) of the Arms Act. The Court directed the release of incarcerated appellants and discharged bail liabilities of those on bail.

Date of Decision: December 11, 2024