Head Notes:
1.
Defective or illegal investigation - Failure of investigating
officer in sending bloodstained clothes to forensic science laboratory and
empty cartridges to ballistic expert - Effect - Whether such failure sufficient
to reject version given by eyewitnesses and fatal to prosecution case - Held,
failure to make reference to forensic science laboratory is in circumstances of
the case no more than deficiency in investigation of case - Any such deficiency
does not necessarily lead to conclusion that prosecution case is totally
unworthy of credit - Deficiencies in investigation by way of omissions and
lapses on part of investigating agency cannot in themselves justify a total
rejection of prosecution case - Aforementioned failure on part of investigating
officer not sufficient in present case to reject version given by eyewitnesses
- This was especially so, when reference
to ballistic expert had no relevance, since weapon from which bullets were
fired was not recovered from accused and was not, therefore, available for
comparison by expert.
2. S. 161 - Delay in examination of witness - Effect -
Whether such delay should by itself justify rejection of his testimony and
render prosecution case suspect - Held, mere delay in examination of a
particular witness, does not, as a rule of universal application, render
prosecution case suspect - It depends upon circumstances of case and nature of
offence that is being investigated; on availability of information by which
investigating officer could reach witness and examine him; and on explanation,
if any, which investigating officer may offer for delay - In a case where
investigating officer has reasons to believe that a particular witness is
eyewitness to occurrence, but he does not examine him without any possible
explanation for any such omission, delay may assume importance and require
court to closely scrutinise and evaluate delayed testimony - But where
investigating officer had no such information about any particular individual
being eyewitness to occurrence, mere delay in examining such a witness, would
not ipso facto render testimony of witness suspect or affect prosecution
version - Herein, trial court and High Court accepted explanation offered by
investigating officer for delay - There is no reason to take a different view
or to reject the testimony of witness herein, only because his statement was
recorded a month and half after occurrence.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITION
CRIMINAL APPEAL NOS.791-792 OF 2005
Sheo Shankar Singh …Appellant
Versus
State of Jharkhand & Anr. …Respondents
With
CRIMINAL APPEAL NOS.793-794 OF 2005
Umesh Singh …Appellant
Versus
State of Jharkhand & Anr. …Respondents
J U D G M E N T: 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 Section 302
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 2004 seeking enhancement of sentence imposed upon
Umesh Singh and Sheo Shankar Singh has been consequently allowed by the High
Court while Criminal Revision Petition No.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
about 2.45 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 to the 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 and 120B 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 the black 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, 2003 found
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 of 2004 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 appeals the 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 ¾ cm x ½ 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 1¼ cm x ¾ 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 ¾ 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 ¾ 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.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.
V Lacerated wounds:
a) 1cm x ½ cm x scalp deep on the right side of
forehead, 6 cm above the inner end of right eye brow.
b) ¾ cm x ½ cm x scalp deep on occuipttal.
VI Abrasions:
a) 1-½ cm x ¾ cm on middle of left side of forehead.
b) 2½ cm x 1½ cm with tail of 3 cm x ½ cm horizontally
placed on
back of right shoulder.
c) ½ cm linear abrasion of 9 cm x 1/3 cm horizontally
placed on back of lower portion of left side of chest.
d) 2½ cm x ¾ 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 18 and 24 hrs.
before the time of post-mortem.”
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 in cases 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 eyewitnesses. 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 what is 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 State Assembly.
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 the business 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 Shankar Singh. The witness admits that he had lodged a criminal case
against Sheo Shankar Singh, Rama Shanker Singh and Rajesh 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
pump situated at G.T. Road at Nirsa stood in the name of Aamlal Kisku which had
been allotted in his name in the Scheduled Tribe’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
ad seriatim.
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.-1.15 p.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 motorcycle 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 Shankar Singh 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, 2000 at
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 1.30 P.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 1.30 p.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 Bajaj make 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 footpath 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 has
led 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 14th 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 ½” x ½” injury on the left knee it. And blackish colour.
3. An abrasion on
the lateral malloouo of left leg which is ¼” x ¼” size.
4. Abrasion about
½” 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 Govindpur
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 2.45 p.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 Govindpur on
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 took place.
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 the person 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 SCC 746 :
“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 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 in Pramod Mandal v. State of Bihar (2004) 13 SCC 150 where 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 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 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 Tshirt 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 bloodstained 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 Bihar and 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 eye witnesses. 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 muchless 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 on 15.4.2000. 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
incharge. 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 depends upon 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 facto render 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 the very 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 has given
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 been recorded 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 5-7 minutes 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 of death.
54.
In Jagmohan
Singh v. The State of U.P (1973) 1 SCC 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 SCC 684 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:
“(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.
(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-à-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.
(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.
(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.
(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 Satishbhushan 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 Vasave and 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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