The Supreme Court has admitted the Bihar government appeal challenging the judgment acquitting all accused in the 1999 Senari massacre of 34 upper caste persons by Maoists. The division bench of Justices S. Abdul Nazeer and Krishna Murari asked the state government to serve notice on all acquitted persons.
Advocate Abhinav Mukerji is the Advocate On Record for the petitioner. Earlier, the Patna High Court in May acquitted 13 accused persons in the Senari massacre case in which 34 persons were killed on March 18, 1999 by an erstwhile Maoist group in Senari village in central Bihar.
According to the petitions , the case of the prosecution is supported by a total of 23 witnesses out of which 9 are eyewitnesses who lost their near family in the mass carnage and includes 1 injured witness. None of the accused disputed the date, time, place and manner of occurrence but still stand acquitted by the impugned judgment on a misreading of the law and evidence on record.
It is submitted that the High Court discarded the testimony of the 9 persons who are eye-witnesses including injured witnesses of the event primarily on erroneous grounds such as (i) failure of certain witnesses to specify source of identification even though event was not disputed and many witnesses had stated that the perpetrators carried torches and fire sticks with them, (ii) omission of witnesses to name accused in their 161 statements – the High Court erred in treating the 161 statements as a substantive evidence to discard testimony of the witnesses, (iii) discarded all identification made by witnesses in the Court on the ground that such identification was being made by them for the first time – contrary to settled law that test identification parade is not mandatory, (iv) discarded all medical evidence establishing the crime without any reason, (v) stated that certain witnesses hid themselves so they could not have seen assailants – contrary to normal human conduct, (vi) applied the maxim false in one thing false in everything while appreciating the evidence of all witnesses, (vii) discarded evidence merely because witnesses had omitted to state certain aspects during deposition in Court, (viii) misapplied the law on section 313 CrPc and (viii) overturned the conviction without appreciating the cogent views of the Trial Court.
It is alleged in the Petitions that the Impugned Order is in disregard of the law declared by this Supreme Court in Ramesh Harijan v. State of U.P. (2012) 5 sec 777 wherein the Apex Court held that minor discrepancy in the testimony of an eye-witness will not render the whole testimony inadmissible. Thus, merely because few of the PW were not able to recall the exact sequence of events will not render their entire testimony inadmissible.
Further, the state government has submitted that the impugned Order is against the settled law declared by the Supreme Court that merely because names of accused have not been mentioned in statements of witnesses recorded by the police and that their description is not given, the evidence of the eye witness cannot be discarded on that ground (Simon and Ors v. State of Karnataka (2004)2SCC694, Malkhansingh v. State of M.P (2003) 5 sec 746, Rizan v. State of Chattisgarh (2003) 2 sec 661, Munshi Singh Gautam (Dead) and others vs. State of M.P (2005)9SCC631, Rajubhai Dhamirbhai Baria & Ors v. State of Gujarat and Ors 2012(114)BOMLR 3549).
Reliance was made on Leela Ram (Dead) Through Duli Chand v. State of Haryana and Anr; (1999) 9 sec 525 wherein the Top Court has held that to contradict a witness, is to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness. It is submitted that the Hon’ble ft Court erroneously treated the minor contradictions in the statements of the eyewitnesses as good enough to discredit their entire testimony contrary to the aforesaid principles of law.
“This Hon’ble Court has also held that failure to hold a test identification parade would not result in acquittal of the accused and the substantive evidence is identification in Court. In a case of mass carnage involving multiple chargesheets, 23 witnesses and originally 38 accused (in another trial) it was but natural for the investigation and trial to take considerable time and that by e itself would not be a ground to discredit and discard the identification made in Court’, reads the Special Leave Petition.
Earlier , the Patna High Court in May acquitted 13 accused persons in the Senari massacre case in which 34 persons were killed on March 18, 1999 by an erstwhile Maoist group in Senari village in central Bihar.
A division bench of Justice Ashwini Kumar Singh and Justice Arvind Srivastava ruled that the prosecution witnesses “are not reliable” and the appellants deserved to be given the benefit of the doubt. “The acquitted persons should be released forthwith if they were not wanted in any other case,” said the Court.
“The burden of proof of guilt of an accused is upon the prosecution. It must stand by itself. In the present case, on appreciation of evidence adduced during the trial, I find that there is real and reasonable doubt as to the guilt of the persons, the Judgment reads.
Those who were acquitted are Bacchesh Singh, Buddhan Yadav, Butai Yadav, Satendra Das, Lallan Pasi, Dwarika Paswan, Kariban Paswan, Godai Paswan, Uma Paswan, Gopal Paswan (all were sentenced to death), Arvind Yadav, Mungeshwar Yadav and Vinay Paswan (life imprisonment).
After nearly 17 years, a trial court of ADJ-III in Jehanabad had held 16 accused guilty and sentenced 11 of them to the death penalty and life imprisonment to the rest three in two separate judgments delivered on November 15 and November 18, 2016.
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In the caste war which had raged in parts of central Bihar in 1990s, the banned Maoist Communist Centre (MCC) had killed 34 people belonging to the upper caste Bhumihar community with weapons at Senari village in the then Jehanabad district. The village now falls in Arwal district, which was created later.
Chinta Devi, whose husband Awadh Kishore Sharma and son Madhukar alias Jhabbu were among those massacred, was the complainant in the case. She died in 2011.