Sheo Shankar Singh Vs
State of Jharkhand & ANR.
Umesh Singh Vs State
of Jharkhand & ANR.
JUDGMENT
T.S. THAKUR, J.
1.
These
appeals by special leave are directed against a common judgment and order dated
6th May, 2005 passed by the High Court of Jharkhand at Ranchi whereby the conviction
of appellant-Sheo Shankar Singh under Section302 read with Section 34 IPC and
that of appellant-Umesh Singh under Section 302 read with Section 34 IPC and Section
27 of the Arms Act have been confirmed and the sentence of rigorous
imprisonment for life imposed upon the said two appellants by the Trial Court
enhanced to the sentence of death. Criminal Revision Petition No.136 of
2004seeking enhancement of sentence imposed upon Umesh Singh and Sheo Shankar
Singh has been consequently allowed by the High Court while Criminal Revision
PetitionNo.135 of 2004 filed against the acquittal of three other accused
persons Md. Zahid, Premjeet Singh and Uma Shankar Singh dismissed.
2.
Briefly
stated the prosecution case is that on 14th April,2000, the deceased-Shri
Gurudas Chatterjee, a sitting member of Jharkhand State Legislative Assembly
was returning to Nirsa from Dhanbad riding the pillion seat of a motorcycle
that was being driven by the first informant Apurba Ghosh, examined at the trial
as PW 16. At about2.45 p.m. when the duo reached a place near Premier Hard Coke,
Apurba Ghosh, the informant heard the sound of a gunshot from behind. He looked
back only to find that appellant-Sheo Shankar Singh was driving a black motorcycle
on the left of the informant with an unknown person, later identified as Umesh
Singh, sitting on the pillion seat carrying a pistol in his hand. Umesh Singh,
the pillion rider, is alleged to have fired a second time from close range which
hit the deceased-Gurudas Chatterjee in the head, who slumped on the back of the
informant thereby disturbing the balance of the motorcycle and bringing both of
them to the ground.
The motorcycle driven
by Sheo Shanker Singh was stopped by him a little ahead whereupon Umesh Singh the
pillion rider got down; walked back to the place where the deceased had fallen,
abused the informant verbally and asked him to run away from there failing
which even he would be killed. So threatened the informant hurried away from
the spot whereupon Umesh Singh-appellant fired a third bullet at the deceased,
pushed his dead body down the side slope of the road, walked back to the
motorcycle whose engine was kept running by Sheo Shankar Singh and fled towards
Nirsa. Some people are said to have run towards them but were scared away by
Umesh Singh with the gun. The motorcycle did not have a registration number. A
crowd is said to have gathered on the spot that included Abdul Kudus Ansari
(PW1) and Lal Mohan Mahto (PW2) who disclosed that they had seen Sheo Shankar
Singh and one unknown person moving on a motorcycle without a registration
number sometime before the occurrence.
3.
On
hearing a rumour about the killing of the deceased MLA, Sub Inspector of Police
Ramji Prasad (PW17) rushed spot and recorded the statement of Apurba
Ghosh(PW16) in which the informant narrated the details of the incident as set
out above. The statement of Apurba Ghosh constituted the First Information
Report in the case which was signed not only by Apurba Ghosh but also by Abdul Kudus
Ansari (PW1) and Lal Mohan Mahto (PW2). Based on the said statement/FIR a case
under Section 302/34 and120B of IPC and Section 27 of the Arms Act was
registered in Police Station Govindpur and the investigation commenced.
4.
In
the course of the investigation an inquest report was prepared by BDO, Shishir Kumar
Sinha, while the investigating officer seized two empties of 9 M.M. bullet engraved
with "HP 59/2" at the bottom from the spot, apart from the red Hero
Honda splendour motorcycle bearing registration No. WB 38 E 7053 on which the
deceased was travelling at the time of occurrence. Blood-stained T Shirt and a
light blue coloured jeans worn by Apurba Ghosh were also seized, besides
blood-stained earth from the place of occurrence.
5.
On
15th April, 2000 investigation was taken over by Shri Raja Ram Prasad (PW18)
who on 16th April, 2000 seized theblack coloured Bajaj Caliber motorcycle
allegedly being driven by appellant-Sheo Shankar Singh at the time of the commission
of the offence. In addition, a Test Identification Parade was got conducted in
which Abdul Qudus Ansari(PW1) identified the accused appellant-Umesh Singh.
After completion of the investigation a charge-sheet was eventually filed
against the accused persons for offences punishable under Section 302/34/120B
and 201 of the Indian Penal Code. Appellant-Umesh Singh was further charged
with an offence punishable under Section 27 of the Arms Act. The accused were
committed to the Court of Sessions at Dhanbad who made the case over to the
Court of Additional Sessions Judge XIII, Dhanbad for trial before whom the
accused pleaded not guilty and claimed a trial.
6.
At
the trial the prosecution examined 20 witnesses while the accused remained
content with two in defence. The trial court by its judgment dated 18th
November, 2003found the appellants Sheo Shankar Singh and Umesh Singh guilty of
the charges under Section 302/34 IPC. Appellant-Umesh Singh was further held
guilty of the charge under Section 27 of the Arms Act. Out of the remaining six
accused persons, the trial court found Narmedeshwar Pd. Singh @ Chora Master,
Bijay Singh and Md. Nooren Master guilty of the charge under Section 302 read
with Section 120B of the IPC. Accused Uma Shankar Singh, Premjee Singh and Md. Zahid
were, however, acquitted for insufficiency of evidence against them.
7.
By
a separate order dated 20th November, 2003 passed by the Trial Court,
appellants Sheo Shanker Singh and Umesh Singh were sentenced to undergo rigorous
imprisonment for life. Appellant-Umesh Singh was in addition sentenced to
undergo rigorous imprisonment for three years under Section 27 of the Arms Act.
Similarly, accused Narmedeshwar Pd. Singh @ Chora Master, Bijay Singh and Md.
Nooren Master were sentenced to undergo rigorous imprisonment for life under
section 302/120B IPC.
8.
Aggrieved
by their conviction and sentence, the appellants herein and the other three
convicts filed criminal appeals No.43 and 78 of 2004 before the High Court of Jharkhand
at Ranchi. Criminal Revision Petition No.135 of2004 was filed by Apurba Ghosh
against the acquittal of accused Uma Shankar Singh, Premjeet Singh and Md.
Zahid,while Criminal Revision Petition No.136 of 2004 prayed for enhancement of
the sentence imposed upon the appellants from life to death.
9.
By
the judgment and order impugned in these appealsthe High Court acquitted
Narmedeshwar Pd. Singh @ Chora Master, Bijay Singh and Md. Nooren Master and
allowed criminal appeals No.43 and 78 to that extent. The conviction of
appellants Sheo Shankar Singh and Umesh Singh was upheld by the High Court and
the sentence imposed upon them enhanced to the sentence of death by hanging. Criminal
Revision Petition No.135 of 2004 against the acquittal of Uma Shankar Singh,
Premjeet Singh and Md.Zahid was, however, dismissed and their acquittal affirmed.
The present appeals assail the correctness of the said judgment and order as
noticed above.
10.
We
have heard Mr. U.R. Lalit, learned senior counsel for the appellants, Mr.
A.T.M. Rangaramanujam and Mr. Sunil Kumar, learned senior counsels appearing for
the respondents at considerable length. We have also been taken through the
evidence on record and the judgments of the Courts below. We shall presently advert
to the submissions made by learned counsel for the parties but before we do so
we may at the outset point out that the cause of death of late Shri Gurudas
Chatterjee being homicidal was not disputed and in our view rightly so. That is
because the evidence on record amply proves that the deceased died of gunshot
injuries sustained by him in the head. The deposition of Dr. Shailender Kumar
(PW14) who conducted the post-mortem examination of the deceased along with two
other doctors viz. Prof. Dr. Rai Sudhir Prasad, and Dr. Chandra Shekhar Prasad
leaves no manner of doubt that the death of Shri Gurudas Chaterjee was the
result of two ante-mortem gunshot wounds, which the witness has described as
under in his deposition in the Court and the post-mortem report, Ex.5:
I.
Fire
arm wound of entrance > cm x = cm cavity deep with inverted margins and abrasion
collar located on the front of upper portion of left side of face about 1.5 cm
in front of Pinna of left ear. No burning, singing or tattooing were seen.
II.
Fire
arm exit wound 1< cm x > cm cavity deep with inverted margins placed 2.5
cm above the mid zone of right eye brow. No evidence of abrasion collar seen.
III.
Fire
arm wound of entrance > cm diameter, cavity deep with inverted margins and
abrasion collar on left side of back of head in prito occipital area 5 cm away
from left ear low. No burning, singing or tattooing were seen.
IV.
Fire
arm exit wounds > cm diameter cavity deep with inverted margins and
protruding brain matter in the left side of back of head in perito occipital
area 2 cm away from left ear low. No abrasion collar was seen. Injury no.
V.
IV
is the exit wound of injury no.1 and injury no.2 is exit wound of injury no.3
as it was confirmed by the track of blood clot and laceration found in
dissection.
VI.
Lacerated
wounds:
a. 1cm x = cm x scalp
deep on the right side of forehead, 6 cm above the inner end of right eye brow.
b. > cm x = cm x
scalp deep on occipital.
VII.
Abrasions:
a. 1-= cm x > cm on
middle of left side of forehead.
b. 2= cm x 1= cm with
tail of 3 cm x = cm horizontally placed on back of right shoulder.
c. = cm linear abrasion
of 9 cm x 1/3 cm horizontally placed on back of lower portion of left side of
chest.
d. 2= cm x > cm on
back of left side flank of abdomen."On dissection Multiple fractures of
frontal and both parietal bones were found Stomach contain about 100 M.L. semi
digested rice and sag.
All viscera were
pale, heart and bladder empty. Opinion In our opinion death occurred instantaneously
due to aforementioned cranio - cerebral injuries resulting from the fire arm. Time
elapsed since death - between and 24 hrs. before the time of post-mortem."
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11. In the light of the
above there is no gainsaying that the deceased died a homicidal death caused by
gunshot injuries. Apart from the fact that cause of the homicidal death was never
questioned by the accused before the trial court, the appellate court or even
before us, the line of cross-examination of the doctor who conducted the
post-mortem examination too does not question the veracity of the opinion of
the medical expert that the deceased had died because of the gunshot injuries
received by him. It is true that the doctor has not been able to specifically
state which of the two gunshot injuries had proved fatal, but that in our opinion
is wholly inconsequential, having regard to the sequence of events unfolded by
the deposition of the witnesses examined at the trial.
12. Coming then to the
substratum of the prosecution case we need point out that the same rests
entirely on the ocular testimony of Apruva Ghosh (PW16) and Prasant
Banerjee(PW6), apart from the incriminating circumstances called in aid by the
prosecution to lend support and corroboration to the testimony of the said two
eye-witnesses. We shall take up for discussion the deposition of the said
witnesses, but before we do so we may deal with the question whether the prosecution
has proved any motive for the commission of the crime alleged against the
appellants and if so to what effect.
13. The legal position
regarding proof of motive as an essential requirement for bringing home the
guilt of the accused is fairly well settled by a long line of decisions of this
Court. These decisions have made a clear distinction between cases where
prosecution relies upon circumstantial evidence on the one hand and those where
it relies upon the testimony of eye witnesses on the other. In the former category
of cases proof of motive is given the importance it deserves, for proof of a
motive itself constitutes a link in the chain of circumstances upon which the
prosecution may rely. Proof of motive, however, recedes into the background
incases where the prosecution relies upon an eye-witness account of the
occurrence. That is because if the court upon a proper appraisal of the
deposition of the eye-witnesses comes to the conclusion that the version given
by them is credible, absence of evidence to prove the motive is rendered
inconsequential. Conversely even if prosecution succeeds in establishing a
strong motive for the commission of the offence, but the evidence of the
eye-witnesses is found unreliable or unworthy of credit, existence of a motive does
not by itself provide a safe basis for convicting the accused. That does not,
however, mean that proof of motive even in a case which rests on an eye-witness
account does not lend strength to the prosecution case or fortify the court in
its ultimate conclusion. Proof of motive in such a situation certainly helps
the prosecution and supports the eye-witnesses. See Shivaji Genu Mohite v. The
State of Maharashtra, (1973) 3 SCC 219, Hari Shanker v. State of U.P. (1996) 9
SCC 40 and State of Uttar Pradesh v. Kishanpal and Ors. (2008) 16 SCC 73.
14. The case at hand
rests upon the deposition of the eyewitnesses to the occurrence. Absence of
motive would not, therefore, by itself make any material difference. But if a
motive is indeed proved it would lend support to the prosecution version. The
question is whether the prosecution has established any such motive to fortify
its charge against the appellants.
15. Depositions of Apurba
Ghosh (PW16), Aamlal Kisku(PW15) and Arup Chatterjee (PW19) are relevant on the
question of motive and may be briefly discussed at this stage. Arup Chatterjee
(PW19) happens to be the son of the deceased Gurudas Chatterjee. According to
this witness the appellants and most of their family members constitute whatis
described by him as "coal mafia" of Dhanbad whom the deceased used to
fight, with the help of the police and administration to prevent the theft of
coal in the region. The witness further states that Aamlal Kisku had a petrol pump
situate at Belchadi, which petrol pump was given by Shri Kisku to the
accused-Sheo Shanker Singh for being run. Aamlal Kisku being an illiterate
adivasi was, according to the witness, being kept as a bonded (bandhua)
labourer by the appellant on payment of Rs.30/- per day. The witness further
states that Aamlal Kisku approached the deceased for help and the later with the
help of police and administration got the ownership of the petrol pump restored
to Shri Kisku. Both these steps namely prevention of theft of coal in the
region and restoration of the petrol pump to Aamlal Kisku annoyed the
appellant-Sheo Shanker Singh, for which reason the deceased was done to death after
he had won his third consecutive election to the .
16. In cross-examination
the witness has expressed his ignorance about the land where the petrol pump
was installed and about the source of income of Aamlal Kisku. The witness also
expressed ignorance about the expenditure involved in the installation of the
pump or the source from where Shri Kisku had arranged finances. The witness
stated that criminal cases were pending before the Court against Sheo Shanker
Singh and Narmedeshwar Pd. Singh and his sons, but expressed ignorance about
filing of the civil suit by Narmadeshwar Singh regarding the petrol pump in
dispute. Witness claimed to have heard a conversation between Aamlal Kisku and
the deceased regarding the dispute over the petrol pump.
17. Aamlal Kisku (PW15)
has, in his deposition, stated that he owns a petrol pump in Belchadi which was
allotted to him out of the Advasi quota. Since he was not familiar with
thebusiness in the sale of oil and lubricants he had taken help from
Narmedeshwar Pd. Singh and Sheo Shanker Singh. Subsequently Sheo Shanker
Singh-appellant started treating him like a labourer and did not render any
accounts regarding the petrol pump. He, therefore, made complaints to the
company and approached late Gurudas Chatterjee MLA, and it was after long
efforts that the petrol pump was restored to the witness. Sheo Shankar Singh and
Narmedeshwar Pd. Singh had extended threats to him regarding which he had
informed the police.
18. In cross-examination
the witness stated that the business of petrol pump was carried on by him in partnership
with Sheo Shanker Singh for 4-5 months in the year 1997. No partnership-deed
was, however, written. He did not know whether any joint account with the
appellants had been opened in Poddardih branch of Allahabad Bank. He also did
not know whether sales tax registration was in joint names and whether the land
belonged to Sheo ShankarSingh. The witness admits that he had lodged a criminal
case against Sheo Shankar Singh, Rama Shanker Singh andRajesh Singh and that
another case was filed against Narmedeshwar Pd. Singh also. The witness denied
that the petrol pump had been installed with the help of the money provided by
Sheo Shanker Singh and Narmedeshwar Pd.Singh and that the cases referred to by
him had been lodged against the said two persons on the incitement of others.
19. Apurba Ghosh (PW16)
apart from being an eye-witness to the incident also mentions about a petrol
pump situated on G.T. Road at Nirsa owned by a person belonging to Scheduled Tribe
community but was being run by Narmedeshwar Pd. Singh illegally. The deceased
fought against them with the help of Police and local administration because of
which the ownership of the petrol pump was got restored to the owner concerned.
The witness also refers to a statement made by the deceased regarding coal
theft 5 or 6 days before the incident in question as a result whereof Narmedeshwar
Pd. Singh and Nooren Master were both sent to jail.
20. There is thus
evidence to prove that a petrol pumpsituated at G.T. Road at Nirsa stood in the
name of Aamlal Kisku which had been allotted in his name in the
ScheduledTribe's quota. It is also evident that to establish and run the said
petrol pump Aamlal Kisku had taken the help from Shri Narmedeshwar Pd. Singh
and Sheo Shankar Singh. Disputes between the original allottee and the appellant-Sheo
Shankar Singh and his father Narmedeshwar Pd. Singh had, however, arisen and
manifested in the form of civil and criminal cases between them. Aamlal Kisku
had in that connection taken the help of the deceased who had with the help of
the police and local administration secured the restoration of the petrol pump
to Shri Kisku which annoyed the appellant-Sheo Shankar Singh and his father Narmedeshwar
Pd. Singh. There is also evidence to the effect that the deceased had acted
against what has been described as `coal mafia' of Dhanbad with the help of
police and administration to prevent the coal theft in the region and the steps
taken by the deceased had resulted in the arrest of Narmedeshwar Pd. Singh and
Nooren Master in connection with the said cases. Both these circumstances appear
to have contributed to the incident that led to the killing of the deceased who
was perceived by the appellants as a hurdle in their activities.
21. That brings us to the
most critical part of the case in which we shall examine whether the
prosecution has proved beyond a reasonable doubt, the sequence of events on which
is based the charge of murder levelled against the appellants. The evidence
adduced by the prosecution in this regard comprises the following distinct
features:
i.
Evidence
suggesting that on the date of occurrence and proximate in point of time the
appellants were seen together riding a black coloured motor cycle, without a registration
number.
ii.
Evidence
establishing seizure of the motor cycle on which the deceased was riding from
the place of occurrence and that which was being driven by appellant-Sheo Shankar
Singh from his factory.
iii.
The
eye witness account of the occurrence as given by Shri Apurva Ghosh PW16 and Shri
Prabshant Banerjee PW6.
iv.
Medical
evidence, supporting the version of PW 16, that he sustained injuries when he fell
from the motor cycle being driven by him on the deceased who was on the
pillion being shot by appellant Umesh Singh.
We propose to deal
with each one of the above aspects adseriatim.
22. Abdul Kudus Ansari
(PW1), in his deposition before the trial court stated that on 14th April, 2000
i.e. the date of occurrence while he was at "Amona turn" (Mod in
Hindi) he saw appellant-Sheo Shankar Singh going towards Nirsa on a Caliber
Motorcycle at about 11.15 A.M. The witness further states that he was at Amona
Mod till around 1 p.m.-1.15p.m. when he saw appellant-Sheo Shankar Singh going towards
Gobindpur on a motorcycle with another person on the pillion seat. At about
2.45 p.m. when he was at his house, he heard that the deceased M.L.A. had been murdered.
He reached the spot where some persons were already present. The person who was
driving the motor cycle on which the deceased was riding said that
appellant-Sheo Shanker Singh was driving the motorcycle while the person sitting
behind had fired the shots. In a Test Identification Parade the witness claims
to have identified appellant-Umesh Singh as the person whom he had seen on the
pillion seat of the motorcycle driven by appellant-Sheo ShankarSingh on the
date of the occurrence. The witness was extensively cross-examined by the defence,
but there is nothing in the deposition which would render the version given by
him doubtful and unworthy or credence. The fact that the witness is a signatory
to the statement of Apurba Ghosh (PW16), which statement was recorded by the Investigating
Officer on 14th April, 2000 at about 4.15 p.m. only shows that he had indeed
reached the place of occurrence immediately after hearing about the killing of
the deceased as stated by him in his deposition in the court; and that he had
not only offered but actually identified the pillion rider in the Test
Identification Parade.
23. To the same effect is
the deposition of Lal Mohan Mahto(PW2) who in his deposition stated that on
14th April, 2000at about 11 A.M. he saw the deceased going towards Dhanbad on a
motorcycle, who told him to stay near the party office at Ratanpur. After some
time he saw appellant-Sheo Shanker Singh riding a motorcycle without a registration
number and going towards Nirsa. Around 1.30P.M. again he saw the said appellant
going towards Govindpur by the same motorcycle with one other person sitting on
the pillion seat. Around 3 P.M. there was a hue and cry that M.L.A. Shri
Gurudas Chatterjee had been killed. He reached the G.T. Road at Deoli and found
the deceased soaked in blood. Apurva Ghosh (PW16) told the witness that while
appellant-Sheo Shanker Singh was driving the motorcycle the person sitting
behind had fired the bullet that killed the deceased. The witness identified
the appellant-Sheo Shanker Singh as the person who was driving the motorcycle
and appellant-Umesh Singh as the person who was sitting on the pillion seat.
24. In cross-examination
this witness has, inter alia, stated that he reached the place of occurrence on
hearing the noise about the killing of the deceased. There was a crowd. The police
had arrived on the spot after few minutes of his reaching there. He told the
police he could identify the person sitting behind Sheo Shankar Singh and that
he knew Apurva Ghosh (PW16) from the date of incident itself. He had seen Sheo
Shankar Singh standing near Khalsa hotel on the date of the incident. At that
time there was nobody with him. The witness denies being a member of Maharashta
Coordination Committee (MCC). He admitted being a member of the Committee
formed for the construction of a memorial to Gurudas Chatterjee.
25. The deposition of
Subodh Chandra Kumbhkar (PW8)goes to show that the appellant-Umesh Singh was
seen by the witness on 14th April, 2000 at 11.00 a.m. at Amona turn(Mod) when
he visited the restaurant of the witness for food. The witness further stated
that he had seen appellant-Sheo Shankar Singh on the same day in the morning
towards the side of the weigh bridge (Kanta). Appellant-Sheo Shankar Singh was
at that time with Vijay Singh Chaudhari.
26. In cross-examination
this witness has stated that the license to run the restaurant (described as
Hotel by the witness) is in the name of his brother Nagenddra Nath Kumbhkar. He
is running the hotel for the past 10-12 years. The witness does not know where
Umesh Singh used to work and had no acquaintance with him. The witness denied the
suggestion that he used to ask Umesh Singh about his well being whenever he met
him. Umesh Singh had on that date taken food in the hotel of the witness and
gone away. There were several others like Tapan Bharti and Mantoo present in
the restaurant. The witness denied the suggestion that he had made a false
statement that he had seen Sheo Shankar Singh and Umesh Singh on the date of
the incident. There is nothing in the deposition of even this witness that could
render his version unworthy of credence.
27. The depositions of
all the witnesses referred to above, in our opinion, satisfactorily prove that
the appellants were seen hanging around the place of occurrence on 14th
April,2000 and were seen together riding a motorcycle without registration
number going towards Govindpur at around 1.30p.m. which is proximate in point
of time when the deceased was gunned down. From the deposition of Abdul Kudus Ansari
(PW1) it is further proved that the witness had identified Umesh Singh as the
person who was riding the motorcycle sitting behind appellant-Sheo Shankar
Singh not only in the Court, but also in the test identification parade held
during the course of investigation.
28. Coming to the second
aspect on which the prosecution has led evidence in support of its case we may
point out that while the motorcycle on which the deceased was travelling along
with Apurba Ghosh PW16 was seized from the place of occurrence in terms of
seizure memo marked Exh.3, the Motor Cycle used by accused was seized from the
premises of Kalyans Vyapor Brisket Udyog owned by the appellant-Sheo Shankar
Singh. This seizure was made on 16th April,2000 at 2.20 p.m. From a reading of
the seizure memo it is evident that the motorcycle was a black colour, Caliber
Bajajmake with no registration number on the plate. From the motorcycle was
recovered a certificate of registration and fitness showing the name of Jai
Shankar Singh, son of N.P. Singh of Nirsa, as its owner. Jai Shankar Singh, it
is noteworthy, is none other than the brother of appellant-Sheo Shankar Singh.
29. Apart from the seizure
mentioned above, the prosecution has led evidence to prove that the empty cartridges
of 9 M.M. bullets with HP-59-II and Triger mark on them were seized from the
place of occurrence. One of the empty cartridges was recovered from near the
dead body while the other was recovered from the mud foot path on the southern
side of the road. This is evident from the seizure memo marked Exh.1/9. In
addition and more importantly is the seizure of light green T-shirt of the complainant-Apurba
Ghosh (PW-16) with blood stains at the arm and back thereof. The T-shirt is
torn near the left shoulder. Blue coloured jeans worn by the witness was also seized
with a tear on the left knee. The deposition of Abdul Qudus (PW1) and Lal Mohan
Mahto (PW2) support these seizures which corroborate the version of the
prosecution that the occurrence had taken place at the spot from where the dead
body, the motorcycle, the empty cartridges and the blood stained earth were
seized. The seizure of the T-shirt and the Jeans worn by Apurba Ghosh (PW16) with
bloodstains on the T-shirt, scratches damaging the T-shirt near the left
shoulder and the Jeans on the left knee also corroborates the prosecution version
that when hit by the bullet fired by the pillion rider of the motorcycle driven
by appellant-Sheo Shankar Singh, the motorcycle on which the deceased was
travelling lost its balance bringing both of them down to the ground and
causing damage to the clothes worn by Apurba Ghosh (PW16) and injuries to his
person. The Courts below have, in our opinion, correctly appreciated the
evidence produced by the prosecution in this regard and rightly concluded that
the seizure of the articles mentioned above clearly supports the prosecution
version and the sequence of evidence underlying the charge.
30. The third aspect on
which the prosecution hassled evidence and which we need to examine before we
go to the deposition of the eye witnesses is the medical evidence, supporting
the version of Apurba Ghosh (PW16) that he had sustained injuries when he fell
down from the motor cycle after the deceased had been shot by the
appellant-Umesh Singh. Reliance is in this regard placed by the prosecution upon
the request made by Ramjee Prasad (PW17) to the Medical Officer, Primary Health
Centre, Govindpur by which Apurba Ghosh (PW16) was sent for treatment with a
request for issue of an injury report. The requisition is dated 14 th April,
2000 and records three injuries which the witness had sustained apart from the
complaint of pain in the chest and the body. Dr. S.C. Kunzni of Primary Health
Centre, Govindpur accordingly examined the injured Apurba Ghosh(PW16) at 10.25
p.m. on 14th April, 2000 and found the following injuries on his person:
1. Complain of chest
pain.
2. An abrasion about
=" x =" injury on the left knee it. And blackish colour.
3. An abrasion on the
lateral malloouo of left leg which is <" x <" size.
4. Abrasion about
=" in radius on circular in size and blackish crust on the left shoulder.
5. Complain of body
ache.
31. The certificate goes
on to state that the injuries had been sustained within 8 hours and had been
caused by hard and blunt substance. The making of the requisition, the medical
examination of the injured, the presence of injuries on his person have been,
in our opinion, satisfactorily proved by the prosecution and go a long way to
support the prosecution version that Apurba Ghosh (PW16) was driving the
motorcycle at the time of the incident and had sustained injuries once he lost
his balance after the deceased sitting on the pillion was shot by the
appellant-Umesh Singh.
32. Time now to examine
the eye-witness account of the occurrence. In his deposition before the trial
court Apurba Ghosh (PW16) stated that according to a previously arranged
programme he had borrowed a Hero Honda motorcycle from one of his friends and
reached the house of the deceased Gurudas Chatterji at 7.00 a.m. After visiting
the party office and talking to some persons there the deceased returned to his
residence at 9.30 a.m., had his meals and left for Dhanbad at about 10.15 a.m.
On the way they visited Mylasia Company and finally started for Dhanbad from
there at 11.00 a.m. At Govind pur Block they met Lal Mohan Mahto (PW2) who was
told by the deceased to remain at the party office till he returned from
Dhanbad. They started from Dhanbad at about 12.00 noon and reached Kalyan
Bhawan for the meeting in which the MLA met the people assembled there. In the
meantime the witness went to the mining office which was closed and handed over
a sum of Rs.9850/- to the Peon for making a deposit of the same towards
royalty. The witness then returned to the place where the meeting was convened
and started back for Nirsa at around 1.30 p.m. on the motorcycle with the deceased
sitting on the pillion seat. At about 2.45p.m. they crossed Premier Hard Coke,
situated at G.T. Road, when the witness heard the sound of firing from behind.
On this he turned back only to see that one 100 CC black coloured Caliber
motorcycle which was being driven by the appellant-Sheo Shankar Singh with an
unknown person sitting on the pillion carrying a pistol in his right hand, was on
his left. The person fired a second shot which hit the deceased who slumped on
the back of the witness with the result that the balance of the motorcycle got
disturbed bringing the witness and the deceased down to the ground. The
appellant-Sheo Shankar Singh stopped the motorcycle being driven by him at some
distance whereupon the man sitting at the back ran towards the deceased
verbally abusing the witness and asking him to run away. On seeing this, the
witness started running towards the west. The unknown person went near the MLA
and fired another shot and pushed the dead body towards the slope on the side
of the road. The unknown person then ran back to the motorcycle driven by Sheo
Shanker Singh who was waiting for him with the engine of the motorcycle
running.
33. The witness further
stated that a crowd assembled near the place of occurrence including Lal Mohan
Mahto (PW2)and Abdul Kudus Ansari (PW1) who stated that they had seen Sheo
Shankar Singh riding 100 CC black colour Caliber motorcycle without a
registration number going towards Nirsa. After some time they had again seen
appellant-Sheo Shankar Singh coming back from Nirsa going towards Govindpur. At
about 1.15 p.m. Sheo Shankar Singh was again seen by these two witnesses going
towards Govind puron the same motorcycle with a person sitting on the pillion seat.
The witness proved the statement recorded by the investigating officer after
the police arrived at the spot, which statement has been marked Exh.1/6. The
witness also identified in the Court Sheo Shankar Singh as the person driving
the motorcycle and Umesh Singh as the person who had fired the bullets that
killed the deceased. He further stated that he was given treatment for the
injuries sustained by him and that his bloodstained clothes as also the motorcycle
were seized.
34. The witness was
cross-examined extensively but his deposition has been accepted by the Courts
below who have found the version to be both consistent and reliable. Mr.Lalit,
learned senior counsel all the same took pains to read before us the entire
deposition of this witness, in an attempt to show that he was not actually
present on the spot with the deceased at the time of the occurrence either
driving his motorcycle or otherwise. He urged that the witness could not have
looked back while driving the motorcycle and that the fleeting glimpse he may
have got of the assailant was not enough for the witness to identify him. We do
not think so. There is in the first place nothing inherently improbable about
the manner in which the witness has narrated the occurrence or his presence on
the spot. There is not even a suggestion of any enmity between the appellants
and the witness nor a bias favouring the prosecution to make his version
suspect. The narration given by the witness is natural and does not suffer from
any material inconsistency or improbability of any kind. Having said that we
must also note that the presence of the witness on the spot is proved by PWs 1
& 2, Abdul Kudus Ansari and Lal Mohan Mahto both of whom reached the place
of occurrence immediately after hearing about the killing of the deceased and
met Apurba Ghosh (PW16) on the spot. Both these witnesses have testified that
the T-shirt worn by the witness was bloodstained and the motorcycle which he
was driving was lying on the spot with the dead body of the deceased at some
distance. Both of them have signed the statement made by Apurba Ghosh (PW16)
before the police which constitutes the first information report about the
incident in which both of them have claimed that they have seen Sheo Shankar Singh
with one other person going on the motorcycle whom they could identify. The
presence of Apurba Ghosh (PW16) on the spot is testified even by Prasant Banerjee
(PW6), also an eye-witness to the occurrence. That apart the presence of
injuries on the person of the Apurba Ghosh (PW16) duly certified by the medical
officer concerned, and the fact that the T-shirt worn by him was torn at two
different places corresponding to the injuries sustained by him also
corroborates the version given by the witness that he was driving the
motorcycle as claimed by him when the deceased was gunned down.
35. It is noteworthy that
the first information report was registered without any delay and Apurba Ghosh
(PW 16) medically examined on 14th April, 2000 itself though late in the
evening. All these circumstances completely eliminate the possibility of the witness
being a planted witness. The testimony of this witness and the deposition of
the PWs Abdul Kudus Ansari and Lal Mohan Mahto prove his being with the
deceased before the incident and being on the spot immediately after the
occurrence with bloodstains on his clothes with the motorcycle being driven by
him lying nearby. We have, therefore, no difficulty in affirming the finding
recorded by the two courts below that the deceased was travelling with Apurba
Ghosh (PW16) on the latter's motorcycle from Dhanbad to Nirsa at the time of
the occurrence and was, therefore, a competent witness who could and has
testified to this occurrence, as the same tookplace.
36. Mr. Lalit, then
argued that while a test identification parade had been conducted in which the appellant-Umesh
Singh was identified by Abdul Kudus Ansari (PW1) as theperson who was the
pillion rider with Sheo Shankar Singh driving the motorcycle, the version of
Apurba Ghosh (PW16)was not similarly put to test by holding a test
identification parade for him also. He urged that while the identification of the
accused in the Court is the substantive evidence and a test identification
parade only meant to reassure that the investigation of the case is proceeding
in the right direction, the failure of the prosecution to offer an explanation
for not holding a test identification parade for this witness would cast a
serious doubt about the credibility of the witness and his version that it was
the appellant-Umesh Singh who had shot the deceased. Relying upon the decision
of this Court in Krishna Govind Patil v. State of Maharashtra 1964 (1) SCR 678,
Mr. Lalit argued that Umesh Singh had not been identified properly and cannot,
therefore, be convicted in which event Section 34 will not be available to
convict appellant- Sheo Shankar Singh also.
37. 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. 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. 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 and Ors. v. State of M.P. (2003) 5 SCC746 :
"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 42 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 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, Vaikuntam Chandrappa v. State of A.P. AIR 1960 SC 1340, Budhsen v.
State of U.P. (1970) 2 SCC 128 and Rameshwar Singh v. State of J&K. (1971)
2 SCC 715)"
38. We may also refer to
the decision of this Court inPramod Mandal v. State of Bihar (2004) 13 SCC
150where this Court observed: "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 43 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 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."
39. The decision of this
Court in Malkhansingh's case(supra) and Aqeel Ahmad v. State of Uttar Pradesh
2008(16) SCC 372 adopt a similar line of the reasoning.
40. The omission of the
investigating agency to associate Apurba Ghosh (PW16) with the test
identification parade in which Abdul Kudus Ansari (PW1) identified Umesh Singh
will not ipso jure prove fatal to the case of the prosecution, although the
investigating agency could and indeed ought to have associated the said witness
also with the test identification parade especially when the witness had not claimed
familiarity with the appellant-Umesh Singh before the incident. Even so, its
omission to do so does not, in our opinion, affect the credibility of the
identification of the said appellant by Apurba Ghosh (PW16) in the Court. That
is because the manner in which the incident has taken place and the opportunity
which Apurba Ghosh (PW16) had, to see and observe the actions of
appellant-Umesh Singh were sufficient for the witness to identify him in the
Court. This opportunity was more than a fleeting glimpse of the assailants.
Appellant-Umesh Singh was seen by the witness pillion riding the motorcycle,
coming in close proximity to his motorcycle, shooting the deceased from close range,
stopping at some distance and coming back to the motorcycle where the deceased
and the witness had fallen, abusing and threatening the witness and asking him
to run away from the spot. All this was sufficient to create an impression that
would remain imprinted in the memory of anyone who would go through such a
traumatic experience. It is not a case where a chance and uneventful glance at another
motorcyclist may pass without leaving any impression about the individual
concerned. It is a case where the nightmare of the occurrence would stay in the
memory of and indeed haunt the person who has undergone through the experience
for a long time. Absence of a test identification parade and the failure of the
Investigating Officer to associate the witness with the same does not, therefore,
make any material difference in the instant case.
41. Mr. Lalit next contended
that according to the prosecution case and deposition of Apurba Ghosh
(PW16),the T-shirt worn by him had got bloodstained when the deceased was shot.
He urged that although the T-shirt was seized by the investigating officer the
same was not sent to the forensic science laboratory for examination and for matching
the blood group of the deceased with that found on the T-shirt nor were the
empty cartridges seized from the spot sent to the Ballistic Expert. This was,
according to the learned counsel, a serious discrepancy which adversely affected
the prosecution version that Apurba Ghosh (PW16)indeed was the driver of the
motorcycle on which the deceased was a pillion rider.
42. It is true that not
only according to Apurba Ghosh (PW16) but also according to Abdul Kudus Ansari
(PW1), Lal Mohan Mahto (PW2) and the Investigating Officer, the T-shirt worn by
Apurba Ghosh (PW16) was bloodstained which was seized in terms of the seizure
memo referred to earlier. It is also true that a reference to the forensic
science laboratory would have certainly corroborated the version given by these
witnesses about the T-shirt being blood stained and the blood group being the
same as that of the deceased. That no explanation is forthcoming for the failure
of the prosecution in making a reference to the forensic science laboratory
which could have strengthened the version given by Apurba Ghosh (PW16) too is
not in dispute. The question, however, is whether the failure of the investing agency
to make a reference would in the circumstances of the case discredit either the
version of the witnesses that the T-shirt was bloodstained when it was seized
or constitute a deficiency of the kind that would affect the prosecution
version. Our answer is in the negative. Failure to make a reference to forensic
science laboratory is in the circumstances of the case no more than a deficiency
in the investigation of the case. Any such deficiency does not necessarily lead
to the conclusion that the prosecution case is totally unworthy of credit.
Deficiencies in investigation by way of omissions and lapses on the part of
investigating agency cannot in themselves justify a total rejection of the prosecution
case. In Ram Bihari Yadav v. State of Biharand Ors. (1998) 4 SCC 517 this Court
while dealing with the effect of shoddy investigation of cases held that if primacy
was given to such negligent investigation or to the omissions and lapses committed
in the course of investigation, it will shake the confidence of the people not only
in the law enforcing agency but also in the administration of justice. The same
view was expressed by this Court in Surendra Paswan v. State of Jharkhand(2003)
12 SCC 360. In that case the investigating officer had not sent the blood
samples collected from the spot for chemical examination. This Court held that
merely because the sample was not so sent may constitute a deficiency in the investigation
but the same did not corrode the evidentiary value of the eye-witnesses.
43. In Amar Singh v.
Balwinder Singh and Ors. (2003)2 SCC 518 the investigating agency had not sent
the firearm and the empties to the forensic science laboratory for comparison.
It was argued on behalf of the defence that omission was a major flaw in the
prosecution case sufficient to discredit prosecution version. This Court, however,
repelled that contention and held that in a case where the investigation is
found to be defective the Court has to be more circumspect in evaluating the
evidence. But it would not be right to completely throw out the prosecution
case on account of any such defects, for doing so would amount to playing in
the hands of the investigating officer who may have kept the investigation
designedly defective. This Court said:
"It would have
been certainly better if the investigating agency had sent the firearms and the
empties to the Forensic Science Laboratory for comparison. However, the report
of the ballistic expert would in any case be in the nature of an expert opinion
and the same is not conclusive. The failure of the investigating officer in
sending the firearms and the empties for comparison cannot completely throw out
the prosecution case when the same is fully established from the testimony of eyewitnesses
whose presence on the spot cannot be doubted as they all received gunshot
injuries in the incident."
44. In the light of the
above the failure on the part of the investigating officer in sending the blood
stained clothes to the FSL and the empty cartridges to the ballistic expert would
not be sufficient to reject the version given by the eyewitnesses. That is
especially so when a reference to the ballistic expert would not have had much
relevance since the weapon from which the bullets were fired had not been recovered
from the accused and was not, therefore, available for comparison by the
expert.
45. It was argued by Mr.
Lalit that the version given by Apurba Ghosh (PW16) about his having borrowed
the motorcycle on which the deceased was travelling with him on the pillion on
the fateful day had not been corroborated by examining the owner of the
motorcycle. The fact that no effort was made by Apurba Ghosh (PW16) or by the
owner to have the motorcycle released in his favour also, contended the learned
counsel, adversely reflected upon the veracity of the case set up by the
prosecution. We do not think so. The fact that the motorcycle on which the
deceased was travelling along with Apurba Ghosh (PW16) was found at the place
of occurrence is amply proved by the evidence adduced by the prosecution. It is
also clear that the motorcycle in question did not belong either to the
deceased or to Apurba Ghosh (PW16). In the circumstances there is no
improbability in the version of Apurba Ghosh (PW16) that the said motorcycle
had been borrowed by him from his friend. The mere fact that the owner of the
motorcycle or Apurba Ghosh (PW16) had not applied for release of the motorcycle
in their favour does not in the least affect the prosecution case much less
does it render the same doubtful in toto.
46. It was also contended
by Mr. Lalit that the first information report was not lodged as claimed by the
prosecution. According to the learned counsel if appellant-Sheo Shankar Singh
had been named in the first information report, there is no reason why the
investigating officer would not have gone after him before taking any further
step in the matter. The argument has not appealed to us. The incident in
question had taken place around 2.45 p.m. The statement of Apurba Ghosh (PW16)
was recorded by the investigating officer at around 4.15 p.m. on the same day based
on which first information report No.90/2000 was registered in the police station.
The copy of the first information was received by the jurisdictional magistrate
on15.4.2000. Apart from Apurba Ghosh (PW16) the statement was also signed by
Abdul Kudus Ansari (PW1) and Lal Mohan Mahto (PW2). All the three witnesses
have stood by what has been attributed to them in the first information report.
In the absence of any unexplained or abnormal delay in the registration of the
case and the despatch of the first information report to the jurisdictional
magistrate we have no reason to hold that the obvious is not the real state of affairs
as claimed by Mr. Lalit.
47. We may now turn to
the deposition of Prasant Banerjee(PW6) who is the other eye-witness to the
occurrence. This witness has in his deposition before the trial court stated that
on 14th April, 2000 he was at a distance of about 100 yards from the place of
occurrence. According to the witness while he was going on his motorcycle with
Ravi Ranjan Prasad, on the pillion seat the deceased Gurdas Chatterjee was
going on the pillion seat of another motorcycle. Appellant-Sheo Shankar Singh
was following the deceased on a motorcycle with appellant-Umesh Singh sitting
on the pillion of that motorcycle. The witness further states that appellant Sheo
Shankar Singh took the motorcycle to the left of the motorcycle on which the
deceased was travelling whereupon appellant-Umesh Singh who was sitting on the pillion
fired two shots because of which the deceased fell down on the south side of
the G.T. Road. The motorcycle of appellant-Sheo Shankar Singh stopped at a
short distance whereupon the appellant-Umesh Singh got down from the motorcycle
and came to the place where the deceased was lying and then fired another shot
at him, pushed him so that his body rolled down the slope. Appellant-Umesh
Singh then returned to the motorcycle and went away towards Nirsa. The witness
further stated that he knew both the accused-appellants.
48. In cross-examination this
witness stated that he remained on the spot for 10-15 minutes after the
occurrence during which time Ravi Ranjan was with him. He and Ravi Ranjan then
proceeded to Panchat. He did not lodge any report in the police station but the
witness told his wife, son and father about the occurrence. He knew the
deceased for the last 10-12 years prior to the occurrence but had not visited
his house. He was summoned to the police station in the month of April 2000 but
could not meet the officer in-charge. The police recorded his statement one and
half months after the occurrence at Nirsa. The witness further states that the
first shot from the motorcycle was fired from behind that injured the back
portion of the head of MLA while the second shot was fired by appellant-Umesh
Singh after he got down from the motorcycle which too had injured the deceased
in his head. The witness further stated that a large crowd had assembled at the
place of occurrence during the time he remained on the spot but he did not talk
to any person nor remember any persons having talked to him. The witness also
denies the suggestion made to him that he had old friendship with appellants-Umesh
Singh and Sheo Shankar Singh or that he had been frequently visiting the house
of both the appellants. The witness stated that he went to the place where
Gurdas Chatterji had fallen after 7-8 minutes and that 10-15 persons had
arrived at the place of occurrence before he reached there. The witness denied the
suggestions that he is a member of the political party of the deceased-Gurdas
Chatterji.
49. Mr. Lalit contended
that Mr. Prasant Banerjee (PW-6)was not an eye-witness as he had come to the
place of occurrence 7-8 minutes after the occurrence. He also argued that the
witness had not made any statement to the police till 2nd June, 2000 which
renders his story suspect. There is no doubt a delay of one and half months in
the recording of statement of Prasant Banerjee (PW-6). The question is whether
the same should by itself justify rejection of his testimony. Our answer is in
the negative. The legal position is well settled that mere delay in the
examination of a particular witness does not, as a rule of universal application,
render the prosecution case suspect. It dependsupon circumstances of the case
and the nature of the offence that is being investigated. It would also depend upon
the availability of information by which the investigating officer could reach
the witness and examine him. It would also depend upon the explanation, if any,
which the investigating officer may offer for the delay. In a case where the
investigating officer has reasons to believe that a particular witness is an
eye-witness to the occurrence but he does not examine him without any possible explanation
for any such omission, the delay may assume importance and require the Court to
closely scrutinize and evaluate the version of the witness but in a case where
the investigating officer had no such information about any particular
individual being an eye-witness to the occurrence, mere delay in examining such
a witness would not ipso factor ender the testimony of the witness suspect or
affect the prosecution version. We are supported in this view by the decision
of this Court in Ranbir and Ors. v. State of Punjab (1973) 2 SCC 444 where this
Court examined the effect of delayed examined of a witness and observed: ".......
The question of delay in examining a witness during investigation is material
only if it is indicative and suggestive of some unfair practice by the investigating
agency for the purpose of introducing a got-up witness to falsely support the
prosecution case. It is, therefore, essential that the "Investigating
Officer should be asked specifically about the delay and the reasons
therefore......"
50. Again in Satbir Singh
and Ors. v. State of Uttar Pradesh (2009) 13 SCC 790 the delay in the
examination of the witness was held to be not fatal to the prosecution case. This
Court observed: "32. Contention of Mr. Sushil Kumar that the Investigating
officer did not examine some of the witnesses on 27th January, 1997 cannot be
accepted for more than one reason; firstly, because the delay in the
investigation itself may not benefit the accused; secondly, because the
Investigating Officer (PW 8) in his deposition explained the reasons for delayed
examination of the witnesses....."
51. The investigating
officer has, in the instant case, stated that Prasant Banerjee (PW6) had met
him for the first time on 2nd June, 2000 and that he recorded his statement on
thevery same day. He has further stated that prior to 2nd June,2000 he had no
knowledge that Prasant Banerjee (PW6) was a witness to the occurrence. Even
Prasant Banerjee hasgiven an explanation how the investigating officer reached him.
According to his deposition the Inspector had told him that he had come to
record his statement after making an enquiry from the person who was sitting on
the pillion of his motorcycle on the date of occurrence. Ravi Ranjan the
pillion rider had also informed him that his statement had beenrecorded by the
police. The Trial Court and the High Court have accepted the explanation
offered by the investigating officer for the delay. We see no reason to take a
different view or to reject the testimony of this witness only because his
statement was recorded a month and half after the occurrence.
52. Coming then to the
second facet of the submission made by Mr. Lalit, we find that the contention
urged by the learned counsel is not based on an accurate reading of the deposition
of the witness. The witness has clearly stated that he has seen the deceased
going on a motorcycle on the date of the occurrence and that appellant-Sheo
Shankar Singh had brought his motorcycle to the left of the motorcycle of the
deceased whereupon appellant-Umesh Singh pillion rider had shot the deceased in
the head. The version given by the witness does not admit of being understood
to suggest that the witness reached the place of occurrence after the occurrence
had taken place. What the witness has stated is that he went to the place where
the deceased had fallen 5-7minutes after the occurrence was over. Witnessing
the occurrence cannot be confused with going to the place where the deceased
had fallen. On a careful reading of the deposition of the witness we do not see
any infirmity in the same that may justify the rejection of the version of
PW6.Both the Courts below have, in our opinion, rightly accepted the testimony
of Prashant Banerjee PW 6 while finding the appellants guilty.
53. That brings us to the
question whether the present is one of those rare of rarest cases in which the
High Court could have awarded to the appellants the extreme penalty ofdeath.
54. In Jagmohan Singh v.
The State of U.P (1973) 1SCC 20 a Constitution Bench of this Court held that in
cases of culpable homicide amounting to murder the normal rule is to sentence
the offender to imprisonment for life, although the Court could for special
reasons to be recorded in writing depart from that rule and impose a sentence
of death. The Court held that while a large number of murders are of the common
type, there are some that are diabolical in conception and cruel in execution.
Such murders cannot be wished away by finding alibis in the social
maladjustment of the murderer. Prevalence of such crimes speaks in the opinion
of many, for the inevitability of death penalty not only by way of a deterrence
but as a token of emphatic disapproval by the society.
55. In Bachan Singh v.
State of Punjab (1980) 2 SCC684 this Court examined the constitutional validity
of Section 302 IPC and sentencing procedure provided in Section 354 (3) of the
Code of Criminal Procedure and ruled that Section 302 of the Indian Penal Code,
1860 did not violate Article 19 or Article 21 of the Constitution of India. It was
further held that while considering the question of sentence to be imposed for
the offence of murder the Court must record every relevant circumstance regarding
the crime as well as the criminal and that if the Court finds that the offence
is of an exceptionally depraved and heinous character and constitutes on
account of its design and the manner of its execution, a source of grave danger
to the society at large, it may impose the death sentence. Taking note of the
aggravating circumstances relevant to the question of determination of the
sentence to be imposed upon an offender, this Court held that death sentence
could be imposed only in the rarest of rare cases when the alternative option
was unquestionably foreclosed. This Court observed: "209. .......Judges
should never be bloodthirsty. Hanging of murderers has never been too good for them.
Facts and Figures, albeit incomplete, furnished by the Union of India, show
that in the past, courts have inflicted the extreme penalty with extreme infrequency
-- a fact which attests to the caution and compassion which they have always
brought to bear on the exercise of their sentencing discretion in so grave a
matter. It is, therefore, imperative to voice the concern that courts, aided by
the broad illustrative guide-lines indicated by us, will discharge the onerous
function with evermore scrupulous care and humane concern, directed along the
highroad of legislative policy outlined in Section 354(3) viz., that for
persons convicted of murder, life imprisonment is the rule and death sentence
an exception. A real and abiding concern for the dignity of human life postulates
resistance to taking a life through law's instrumentality. That ought not to be
done save in the rarest of rare cases when the alternative option is
unquestionably foreclosed."
56. In Machhi Singh and
Ors. v. State of Punjab (1983)3 SCC 470 this Court followed the guidelines
flowing from Bachan Singh's case (supra) and held that death sentence could be
imposed only in the rarest of rare cases when the collective conscience of the
community is so shocked that it would expect the holders of judicial power to
inflict the death penalty irrespective of their personal opinion as regards the
desirability or otherwise of retaining death penalty as a sentencing option.
This Court enumerated the following circumstances in which such a sentiment
could be entertained by the community:
a. "(1) When the
murder is committed in an extremely brutal, grotesque, diabolical, revolting or
dastardly manner so as to arouse intense and extreme indignation of the
community.
b. (2) When the murder
is committed for a motive which evinces total depravity and meanness; e.g. murder
by hired assassin for money or reward; or cold-blooded murder for gains of a
person vis-a-vis whom the murderer is in a dominating position or in a position
of trust; or murder is committed in the course for betrayal of the motherland.
c. (3) When murder of a
member of a Scheduled Caste or minority community etc., is committed not for
personal reasons but in circumstances which arouse social wrath; or in cases of
"bride burning" or "dowry deaths" or when murder is
committed in order to remarry for the sake of extracting dowry once again or to
marry another woman on account of infatuation.
d. (4) When the crime is
enormous in proportion. For instance when multiple murders, say of all or
almost all the members of a family or a large number of persons of a particular
caste, community, or locality, are committed.
e. 5) When the victim of
murder is an innocent child or a helpless woman or old or infirm person or a person
vis-a-vis whom the murderer is in a dominating position, or a public figure
generally loved and respected by the community"
57. In Farooq alias
Karattaa Farooq and Ors. v. State of Kerala (2002) 4 SCC 697 this Court was
dealing with a case where the appellant was alleged to have thrown a bomb on an
under-trial prisoner at the jail gate resulting his death and severe injuries
to others. Relying upon the decision of this Court in Bachan Singh case and in
the case of Machhi Singh (supra) this Court held that the extreme penalty of
death was not called for and accordingly commuted the sentence to life
imprisonment.
58. In Santosh Kumar
Satish bhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 this Court once
again reviewed the case law on the subject and reiterated that although
judicial principle of imposition of death penalty were far from being uniform
the basic principle that life imprisonment is the rule and death penalty an
exception, would call for examination of each case to determine the appropriateness
of punishment bearing in mind that death sentence is awarded only in rarest of
rare cases where reform is not possible. The discretion given to the Court in such
cases assumes importance and its exercise rendered extremely difficult because
of the irrevocable character of that penalty. The Court held where two views
are possible imposition of death sentence would not be appropriate, but where
there is no other option and where reform was not possible death sentence may
be imposed. Applying the principles evolved in Bachan Singh case and in the
case of Machhi Singh (supra) this Court commuted the death sentence awarded to one
of the appellants to life imprisonment holding that the case did not satisfy
the "rarest of rare" test to warrant the award of death sentence, even
when the decapitation of the victim's body and its disposal was termed brutal.
59. State of Maharashtra
v. Prakash Sakha Vasaveand Ors. (2009) 11 SCC 193 too was a case where this Court
while setting aside the acquittal of the accused awarded life imprisonment to
him. That was a case where the accused was alleged to have hit the deceased
with an axe with such great force that the axe got struck into the head of the
deceased and the handle of the axe was also broken.
60. Coming to the case at
hand we are of the opinion that the High Court was not justified in imposing
the extreme penalty of death upon the appellants. We say so for reasons more
than one. Firstly, because the appellants are not professional killers. Even
according to the prosecution they were only a part of the coal mafia active in
the region indulging in theft of coal from the collieries. The deceased being
opposed to such activities appears to have incurred their wrath and got killed.
Secondly, because even when the deceased was a politician there was no
political angle to his killing. Thirdly, because while all culpable homicides amounting
to murder are inhuman, hence legally and ethically unacceptable yet there was
nothing particularly brutal, grotesque, diabolical, revolting or dastardly in
the manner of its execution so as to arouse intense and extreme indignation of
the community or exhaust depravity and meanness on the part of the assailants
to call for the extreme penalty. Fourthly, because there was difference of opinion
on the question of sentence to be awarded to the convicts. The Trial Court did
not find it to be a rarest of rare case and remained content with the award of
life sentence only which sentence the High Court enhanced to death. Considering
all these circumstances, the death sentence awarded to the appellants in our
opinion deserves to be commuted to life imprisonment.
61. In the result, we
affirm the judgments and orders under appeal with the modification that instead
of sentence of death awarded by the High Court, the appellants shall suffer
rigorous imprisonment for life. The appeals are accordingly allowed but only in
part and to the extent indicated above.
...........................J.
(V.S. SIRPURKAR)
...........................J.
(T.S. THAKUR)
New
Delhi
February
15, 2011
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