Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 1804-1805 OF 2009
Anand Mohan …… Appellant
Versus
State of Bihar …… Respondent
WITH
CRIMINAL APPEAL NO. 1536 OF 2009,
CRIMINAL APPEAL NO. 1537 OF 2009,
CRIMINAL APPEAL NO. 1538 OF 2009,
CRIMINAL APPEAL NO. 1539 OF 2009,
CRIMINAL APPEAL NO. 1540 OF 2009,
CRIMINAL APPEAL NO. 1541 OF 2009,
CRIMINAL APPEAL NO. 1542 OF 2009
AND
CRIMINAL APPEAL NO. 1806 OF 2009
J U D G M E N T
A. K. PATNAIK, J.
These are all appeals by way of special leave under Article 136 of
the Constitution against the common judgment of the Patna High Court in
Death Reference No.12/2007 and Criminal Appeals (DB) Nos. 1282, 1308,
1318, 1327, 1345, 1354 of 2007.
FACTS
2. The facts are that a typed report was lodged by Mohan Rajak, Deputy
Superintendent of Police (East), Muzaffarpur (for short ‘the informant’)
on 05.12.1994 at 22.10 hours (10.10 p.m.) at PS Sadar, District
Muzaffarpur (East), which was treated as FIR. The prosecution case in the
FIR briefly was as follows: On the night of 04.12.1994, certain unknown
criminals had murdered Shri Kaushlendra Kumar Shukla @ Chhotan Shukla and
his associates at NH-28 and the post mortem on Chhotan Shukla and the
other deceased persons was done on 05.12.1994 at the SKM College Hospital.
The supporters of Chhotan Shukla belonging to the Bihar Peoples Party
gathered in large numbers at the hospital. Considering the possibility of
breakdown of law and order, the officers of the civil and police
administration remained present with armed force and lathi force at the
hospital. After the post mortem, the dead bodies were taken in a
procession to the house of Chhotan Shukla. The procession was led by Arun
Kumar Singh, Ramesh Thakur, Shashi Shekhar Thakur, Ram Babu Singh,
Harendra Kumar, Vijay Kumar Shukla @ Munna Shukla and others and was
escorted by the officers of the civil and police administration. When the
procession reached the house of Chhotan Shukla, Anand Mohan, MLA, and
Lovely Anand, M.P., and others who were present there, offered flowers to
the dead body of Chhotan Shukla. At about 3.30 p.m., the dead body of
Chottan Shukla was taken in a procession to his ancestral house in village
Jalalpur under Lalganj Thana in Vaishali district where about 5000 people
gathered. Thereafter, the procession was led by Anand Mohan, Lovely
Anand, Professor Arun Kumar Singh, Akhlak Ahmad, Harender Kumar, Rameshwar
Wiplavi and others and they were all in different vehicles. Anand Mohan
and Lovely Anand were sitting in their Contessa car. An Ambassador car
and a white coloured Gypsy were moving in front of the procession. When
the procession reached the Bhagwanpur Chowk, the dead body of Chottan
Shukla was kept for a while and Anand Mohan, Lovely Anand and Professor
Arun Kumar Singh gave speeches instigating the crowd to take revenge of
the murder of Chhotan Shukla and others by murder and to teach the
administration a lesson if it created any hurdle. After listening to the
speeches, the people became aggressive. The procession then moved from
Bhagwanpur Chowk towards Ram Dayal Nagar through the National Highway. At
about 4.15 p.m. when the procession came near Khabra Village on the
National Highway, the shouts “Maro Maro” were heard from the midst of the
procession. When the informant along with other officers reached the
place from where the shouts were being heard, they found that on the right
hand side of the road the Ambassador car of the District Magistrate,
Gopalganj, G. Krishnaiyyah (coming from the opposite direction) had
turned turtle and the District Magistrate was lying on the ground. They
also saw Anand Mohan, Lovely Anand, Professor Arun Kumar Singh and some
others were loudly provoking Bhutkun Shukla (brother of Chhotan Shukla)
to kill the District Magistrate and take revenge. Thereafter, Bhutkun
Shukla drew out a revolver from his waist and fired three shots and then
escaped into the crowd. The District Magistrate got wounded. Looking at
the gravity of the situation, the Sub-Divisional Officer (East) ordered
lathi charge and the police and other officers present started charging
lathi at the crowd. The District Magistrate, Gopalganj, was sent in a
Gypsy to the SKM College Hospital for treatment. Information was sent
through wireless to the District Headquarters of Vaishali District about
the incident. In the meantime, the assailants fled to Hajipur and the
informant and the Sub-Divisional Officer (East) chased the assailants and
reached Hajipur where they found 15 persons including Anand Mohan and
Lovely Anand caught by the Hajipur police. All the 15 persons were
arrested and their vehicles were seized. After the informant came back to
Muzaffarpur, he got information that the District Magistrate, Gopalganj,
died at the SKM College Hospital.
3. Pursuant to the FIR, investigation was carried out by the police and
a charge-sheet was filed against 36 accused persons. The learned Chief
Judicial Magistrate, Muzaffarpur, committed the case to the Sessions
Court. The Sessions Court framed charge under Section 147 and Sections
302/149 of the Indian Penal Code (for short ‘the IPC’) against all the 36
accused persons (A-1 to A-36) for being members of unlawful assembly with
the common object of committing the murder of the District Magistrate,
Gopalganj, G. Krishnaiyyah, (for short ‘the deceased’) as well as the
charge under Section 307/149 IPC for being a member of the unlawful
assembly with the common object of attempting to commit murder of the
photographer, the bodyguard and the driver of the deceased. All the 36
accused persons were also charged for the offence under Sections 302/109
for abetting the commission of the murder of the deceased. Anand Mohan,
Lovely Anand and Professor Arun Kumar Singh (A-1, A-2 and A-3
respectively) were further charged under Sections 302/114 IPC.
4. At the trial, the prosecution examined as many as 25 witnesses. PW-
1 to PW-14 were police officials who claimed to be with or behind the
procession till the incident occurred. PW-15, PW-16 and PW-23 were doctors
who proved the injury reports and the post mortem report. PW-17 and PW-21
are the driver and the bodyguard of the deceased. PW-18 and PW-19 are the
Director and employee of the Forensic Science Laboratory, Patna, who
collected the blood-stained earth and broken pieces of glass from the
place of occurrence. PW-20 is the Executive Magistrate who accompanied
the procession. PW-22 is the Assistant Sub-Inspector, Muzaffarpur
District, who investigated the case from 14.12.1994 to 16.12.1994. PW-25
is the Additional S.P. Muzaffarpur who investigated the case for a few
hours and PW-24 is the second investigating officer. The defence also
examined twelve witnesses at the trial.
5. The Additional Sessions Judge-I, Patna (for short ‘the trial court’)
found Anand Mohan, Lovely Anand, Professor Arun Kumar Singh, Akhlak
Ahamad, Vijay Kumar Shukla @ Munna Shukla, Harendra Kumar @ Harendra Pd.
Sahi and Shashi Shekhar Thakur (A-1, A-2, A-3, A-4, A-5, A-6 and A-7
respectively) guilty of the offences under Sections 147, 302/149, 307/149
and 427/149 of the IPC. The trial court also held Anand Mohan, Lovely
Anand, Professor Arun Kumar Singh and Akhlak Ahamad (A-1, A-2, A-3 and A-4
respectively) guilty of the offence of abetment to commit murder under
Sections 302/109 IPC. The trial court acquitted the remaining accused
persons A-8 to A-36 of all the charges. After hearing on the question of
sentence, the trial court sentenced A-1, A-3 and A-4 to death for the
offence under Sections 302/149 and 302/109 of the IPC and further
sentenced them for one year R.I. for the offence under Section 147 IPC, 5
years R.I. for the offence under Section 307/147 IPC and one year R.I. for
the offence under Section 427/149 IPC and all the sentences were to run
concurrently. The trial court, however, sentenced A-2 to life
imprisonment for the offences under Sections 302/149 and 302/109 IPC and a
fine of Rs.25,000/-, for one year R.I. for the offence under Section 147
IPC, 5 years R.I. for the offence under Section 307/149 IPC and one year
R.I. for the offence under Section 427/149 IPC and all the sentences were
to run concurrently and in default of payment of fine she was to undergo
simple imprisonment for a period of two years. The trial court sentenced
A-5, A-6 and A-7 for life imprisonment for the offence under Section
302/149 IPC and to pay fine of Rs.25,000/- each, R.I. for five years for
the offence under Section 307/149 IPC, R.I. for one year for the offence
under Section 147 IPC and R.I. for one year for the offence under Section
427/149 IPC and in default of payment of fine to undergo simple
imprisonment for two years and all the sentences were to run concurrently.
6. The sentence of death on A-1, A-3 and A-4 were referred to the High
Court. Criminal appeals were also filed by the convicts before the High
Court. The High Court held in the impugned common judgment that the
prosecution has not been able to establish a case of unlawful assembly
with common object of causing death of the deceased, or any other person
and thus there could be no conviction under Sections 147 and 302/149 IPC.
The High Court, however, held on the basis of evidence of PW-1, PW-3, PW-
4, PW-9, PW-10 and PW-14 that A-1 had exhorted the lone shooter to kill
the deceased and hence he alone was guilty of the offence of abetment of
murder under Section 302/109 IPC. Accordingly, the High Court acquitted A-
2 to A-7 of all the charges and sustained the conviction of A-1 but
converted the sentence of death on A-1 to one of rigorous imprisonment for
life.
7. Aggrieved, A-1 has filed Criminal Appeal No.1804-1805 of 2009
challenging the impugned judgment of the High Court in so far as it
sustained his conviction under Section 302/109 IPC and imposed the
punishment of rigorous imprisonment for life. The State of Bihar has
filed Criminal Appeal Nos. 1536, 1537, 1538, 1539, 1540, 1541, 1542 and
1806 of 2009 challenging the impugned judgment of the High Court insofar
as it acquitted A-2 to A-7 and insofar as it converted the death sentence
on A-1 to life imprisonment.
CONTENTIONS
8. Mr. Ram Jethmalani, learned senior counsel appearing for A-1
submitted that the occurrence took place at 4.15 P.M. on 05.12.1994 and
soon thereafter information was sent through wireless to the District
Headquarter, Vaishali District about the incident and hence this
information was the real FIR and would disclose the first account of the
occurrence. He vehemently argued that this wireless message sent soon
after the incident to the District Headquarters of District Vaishali
clearly stated that the people who got mixed with the funeral procession
of the cremation of Chhotan Shukla have injured the deceased by shooting
him with a revolver and fled towards Hajipur by different vehicles and
this was the real FIR of the case but the High Court has not even applied
its mind to this real FIR of the case.
9. He submitted that instead of this wireless message, a typed report
of the informant PW-14 has been treated as the FIR. He argued that this
typed report of PW-14 treated as FIR is stated to have been lodged in the
Sadar P.S. at 22:10 hrs. (10.10 P.M.) on 05.12.1994, but the evidence of
PW-11 would show that the informant PW-14 returned to Muzaffarpur only
after 2.00 A.M. on 06.12.1994. He submitted that the High Court has also
noticed in the impugned judgment that the FIR mentioned the name of
Dy.S.P.-Dhiraj Kumar as the Investigating Officer who joined after leave
on duty on 06.12.2004 and took up investigation at 8.15 A.M. from the
first I.O. PW-25 He argued that all these facts clearly establish that
not only the FIR was ante-dated and ante-timed as 05.12.1994, 10.10 P.M.
but also fabricated by PW-14 making false allegations against A-1 and
against the members of his political party on the instructions of
political superiors. He contended that the High Court having held that
there was evidence to suspect that the FIR was ante-dated and ante-timed
should have also come to the conclusion that the entire prosecution case
as stated in the FIR by PW-14 was false.
10. Mr. Jethmalani next submitted that the High Court has rightly
rejected the prosecution version that there was an unlawful assembly with
the object of murdering the deceased and, therefore, the offences under
Section 147 and 302/149 were not made out against any of the accused
persons. He contended that having come to this finding, the High Court
could not have held A-1 guilty of the offence of abetting the murder under
Section 302/109 IPC on the ground that A-1 had incited Bhutkun Shukla to
commit the murder. He submitted that almost all the prosecution witnesses
have stated that the deceased was shot by Bhutkun Shukla when he was lying
injured on the ground, but the medical evidence establishes that he was
shot when he was in a standing position and thus the prosecution witnesses
have not actually seen the incident nor heard any exhortation by A-1 to
Bhutkun to kill the deceased. He argued that the High Court having
recorded the finding that PW-11 was a false witness could not have
believed the other witnesses supporting the case that was put forward by
PW-11 in his evidence. He relied on the station Diary entry Nos. 92, 94,
97 and 102 of the Police Station of PW-11 to show that PW-11 was not even
there in the procession accompanying the dead body of Chhotan Shukla but
had gone for some investigation at the University where he was stationed
as a police officer.
11. He argued that the High Court failed to realize that A-1 along with
his wife A-2 were in a white Contessa Car which was almost at the front of
the procession behind the police car and the Tata Maxi carrying the dead
bodies of Chhotan Shukla and another, whereas the shouts of “maro maro”
came from the rear of the procession and the witnesses have all deposed
that when they reached there they found that the Car was over-turned and
the deceased was lying injured on the ground. He submitted that the
deceased was, therefore, dead before A-1 Anand Mohan could come from his
Contessa car to the place of occurrence and the entire prosecution story
that Bhutkun was incited by A-1 to kill the deceased must necessarily be
false.
12. Mr. Jethmalani submitted that the High Court failed to appreciate
the following circumstances:
(i) There is no evidence that A-1 knew the deceased and, therefore,
when the car of the deceased came from the opposite direction and
crossed the Contessa Car in which A-1 was sitting he did not know
that it was the deceased who was sitting in the car and there was no
reason for him to incite any one to kill him;
(ii) There is no evidence that A-1 got out of his Contessa Car
which was in front of the procession and went towards the rear of
the procession to incite the killing of the deceased;
(iii) The provocative speech attributed to A-1 were at
Bhagwanpur Chowk and the police officers are the only witnesses who
have deposed with regard to such provocative speech by A-1 and their
deposition that the speech was provocative was the opinion of the
police officers and hence the High Court rightly did not rely on the
provocative speech of A-1 to convict him;
(iv) There were discrepancies in the evidence of witnesses with
regard to the exhortation by the accused persons to Bhutkun to shoot
and thus the High Court should have rejected the story of the
prosecution that A-1 incited Bhutkun to shoot the deceased;
(v) The prosecution story that the procession wanted to seek
vengeance on the administration is falsified by an independent
witness PW-12 (Tara Razak), the SDO who accompanied the procession;
(vi) The High Court did not take into consideration the evidence
of PW-17 and 21, the driver and the body guard of the deceased, who
did not support the prosecution case.
He submitted that had the High Court considered these circumstances, it
would have acquitted A-1 of all the charges.
13. Mr. Ranjeet Kumar, learned senior counsel appearing for the State
of Bihar, submitted that the court must appreciate the facts which have
led to the occurrence in this case. He submitted that Chhotan Shukla was
a candidate in the ensuing State Assembly elections on behalf of the Bihar
Peoples Party of which A-1 and A-2 were leaders and on 04.12.1994 Chhotan
Shukla and his four associates were killed by some unknown persons in
Muzaffarpur. He submitted that the gathering on 05.12.1994 at the SKM
College Hospital where the bodies of Chhotan Shukla and others were taken
for post mortem was of people belonging to the Bihar Peoples Party and the
procession which accompanied the dead bodies of Chhotan Shukla and others
was a show of political strength displayed by A-1 and A-2 and his
political associates. He submitted that the provocative speeches
delivered by A-1, A-2 and others of the Bihar Peoples Party at the
Bhagwanpur Chowk aroused the emotions in the crowd of almost 5000 people
to take revenge by bloodshed and this was the cause for the violence on
the car of the deceased which was coming from the opposite direction when
the procession reached Village Khabra. He submitted that the violent
crowd pulled out the occupants of the car, beat them, overturned the car
and finally Bhutkun Shukla shot the deceased on the exhortation of A-1 to
A-4 because the deceased represented the State administration. He
submitted that the High Court has not appreciated these background facts
which led to the murder of the deceased and has acquitted A-2 to A-7 and
has sustained only the conviction of A-1 under Section 302/109 IPC.
14. In reply to the submissions of Mr. Jethmalani that the wireless
message sent to the District Headquarters, Vaishali district soon after
the incident on 5.12.1994 was the real FIR, Mr. Ranjeet Kumar submitted
that the wireless message was very cryptic and could not be treated as an
FIR. He cited the decision of this Court in Binay Kumar Singh and others
v. State of Bihar [(1997) 1 SCC 283] in which it has been held that the
officer in-charge of the police station is not obliged to accept as FIR
any nebulous information received from somebody which does not disclose
any authentic cognizable offence and it is open to the officer in-charge
to collect more information containing details of the occurrence, if
available, so that he can consider whether a cognizable offence has been
committed warranting investigation.
15. On the delay in lodging the FIR, he referred to the evidence of the
informant, PW-14, to show that he had to first send the deceased in the
Gypsy car for treatment to the SKM College Hospital and he had to go to
Hajipur to arrest the accused persons and only after the accused persons
were taken to custody at Hajipur, he came back to Muzaffarpur and prepared
the typed report and lodged the same as FIR in the Sadar P.S. at about
10.00 P.M. in the night. He submitted that there was thus sufficient
explanation for the delay in lodging the FIR. He cited Erram Santosh
Reddy and others v. State of Andhra Pradesh [(1991) 3 SCC 206] in which
there was a delay of six hours in lodging the FIR and the prosecution
explained that the police had to raid, effect recoveries and thereafter
submit a report in the concerned police station and on these facts this
Court held that no adverse inference could be drawn because of the delay
in lodging the FIR. He submitted that in Amar Singh v. Balwinder Singh &
Ors. [(2003) 2 SCC 518] this Court has held that a delay of 26 hours in
lodging the FIR from the time of the incident was fully explained from the
evidence on record and, therefore, no adverse inference could be drawn
against the prosecution.
16. Mr. Ranjeet Kumar submitted that the medical evidence did not
altogether make the ocular evidence improbable. He argued that the ocular
evidence of different witnesses categorically states that Bhutkun Shukla
came out from the crowd and fired 3 shots and PW-16, who conducted the
post mortem, has stated that there were three bullet injuries in the body
of the deceased. He submitted that no one can predict how a human body
would respond to the first bullet shot and therefore from the nature of
the bullet injuries in the body of the deceased who was shot from a very
close range, one cannot conclude that the deceased could not have been
shot after he fell on the ground as contended by Mr. Jethmalani. He cited
the decision of this Court in Abdul Sayeed v. State of Madhya Pradesh
[(2010) 10 SCC 259] for the proposition that ocular testimony has greater
evidentiary value vis-à-vis medical evidence. He submitted that in the
present case the medical evidence does not go so far as to rule out the
truth of the ocular evidence.
17. He submitted that the oral evidence in this case is consistent that
A-1, A-2, A-3 and A-4 not only delivered provocative speeches against the
administration and aroused the emotions of the crowd to resort to
bloodshed but also exhorted Bhutkun Shukla to shoot at the deceased who
represented the State administration. He referred to the evidence of PWs
1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 who have deposed about
the provocative speeches and exhortation of A-1 to A-4. He cited Masalti
v. State of U.P. [1964(8) SCR 133] wherein this Court has held that where
a criminal court has to deal with the evidence pertaining to the
commission of offence involving large number of offenders and large number
of victims, it is usual to adopt a test that the conviction could be
sustained only if it is supported by two or three or more witnesses who
give a consistent account of the incident. He also referred to the
decisions of this Court in Binay Kumar Singh and others v. State of Bihar
(supra) and Abdul Sayeed v. State of Madhya Pradesh (supra) in which the
test laid down in Masalti v. State of U.P. (supra) has been reiterated.
He submitted that unfortunately the High Court disbelieved the police
witnesses and preferred to rely on the evidence of only the civilian
officials and acquitted A-2 to A-7 of all the charges and sustained only
the conviction of A-1 although there was sufficient evidence against A-2
to A-7. He cited Girja Prasad v. State of M.P. [(2007) SCC 625] wherein
it has been held by this Court that it is not the law that police witness
should not be relied upon and their evidence cannot be accepted unless it
is corroborated in material particulars by other independent evidence.
18. He submitted that the High Court also acquitted A-1 to A-7 of the
charges under Sections 147 and 302/149 IPC on the ground that there was no
unlawful assembly with common object to commit the murder of the deceased
or any other person. He cited the decisions of this Court in Sikandar
Singh and others v. State of Bihar [(2010) 7 SCC 477] and Virendra Singh
v. State of Madhya Pradesh [(2010) 8 SCC 407] to contend that the A-1 to A-
7 had formed an unlawful assembly with the common object of murdering the
deceased and the other occupants of the car at the spur of the moment.
19. He relied on the decision of this Court in Rizan and Another v.
State of Chhattisgarh [(2003) 2 SCC 661] to argue that normal
discrepancies in evidence are likely to occur due to normal errors of
observations, normal errors of memory due to lapse of time and due to
mental disposition such as shock and horror at the time of occurrence but
these discrepancies do not make the evidence of a witness untrue and it is
only the material discrepancy which affect the credibility of a party’s
case. He submitted that had the High Court overlooked the minor and
normal discrepancies in the evidence of different witnesses who had given
their account of the incident as observed by them from different places at
the spot at the time of occurrence it would have come to the conclusion
that the witnesses gave a consistent account of the involvement of A-1 to
A-7 in committing the offence under Sections 302/149 and 302/109 IPC. He
submitted that High Court, therefore, could not have set aside the
findings of the trial court and should have sustained also the death
sentence on A-1, A-3 and A-4.
20. Mr. Surinder Singh, learned senior counsel appearing for the
respondents in Criminal Appeals Nos. 1536, 1537, 1538, 1540, 1541 and 1542
of 2009, submitted in reply that the fact that the FIR was not lodged soon
after the incident at 4.15 P.M. on 05.12.1994 indicates that the informant
and all other officers accompanying the procession had no inkling
whatsoever as to who committed the murder of the deceased. He cited the
decision of this Court in Bhagaloo Lodh and Another v. State of Uttar
Pradesh [(2011) 13 SCC 206] in which it has been held that prompt and
early reporting of the occurrence by the informant with all its vivid
details gives an assurance regarding the truth of its version and where
there is a delay in lodging the FIR without any explanation a presumption
can be raised that the allegations in the FIR were false and that it
contains a coloured version of the events that had taken place. He also
relied on Awadesh v. State of M.P. [AIR 1988 SC 1158], in which this
Court found that the FIR was lodged belatedly because the names of the
assailants were not known and a lot of deliberation took place before
lodging the FIR and this Court held that the prosecution has failed to
prove its case beyond reasonable doubt. He also cited Ganesh Bhavan Patel
v. State of Maharashtra [(1978) 4 SCC 371] in which this Court has held
that the inordinate delay in the registration of the FIR and further delay
in recording the statement of material witnesses caused a cloud of
suspicion on the credibility of the entire warp and woof of the
prosecution story. He submitted that in Marudanal Augusti v. State of
Kerala [(1980) 4 SCC 425] this Court gave the benefit of doubt to the
accused and acquitted him after it found that the FIR was fabricated and
brought into existence long after the occurrence.
21. He submitted that the High Court was right in coming to the
conclusion that no case of unlawful assembly was established against A-1
to A-7. He argued that the speeches made at Bhagwanpur Chowk were not
provocative but rhetorical and in any case since an Executive Magistrate
was also present all through along with the procession the Court could not
come to the conclusion that the accused persons constituted an unlawful
assembly either at Bhagwanpur Chowk where the speeches were delivered or
at Khabra where the incident took place.
22. He referred to the evidence of PW-12 & PW-13 who were sub-divisional
officers and to the evidence of PW-21 who was the bodyguard of the
deceased to show that these independent witnesses have not said anything
about the exhortation by A-1 to A-7 to Bhutkun to kill the deceased. He
also submitted that the evidence of the prosecution witnesses are not
consistent on the point as to who exhorted Bhutkun to kill the deceased
and, therefore, the decision of this Court in Masalti v. State of U.P
(supra) does not apply to the facts of the present case. He submitted
that in Jainul Haque v. State of Bihar [AIR 1974 SC 45] this Court has
held that evidence of exhortation is in the very nature of things a weak
piece of evidence and there is often quite a tendency to implicate some
person in addition to the actual assailant by attributing to that person
an exhortation to the assailant to assault the victim and unless the
evidence in this respect is clear, cogent and reliable, no conviction for
abetment can be recorded against the person alleged to have exhorted the
actual assailant. He submitted that considering the proposition of law
laid down in this decision, and considering the fact that there are
discrepancies with regard to who exhorted Bhutkun to shoot at the
deceased, the conviction of A1-A7 would not be unsafe.
23. He submitted that if as has been deposed by the prosecution
witnesses the deceased was lying on the ground when Bhutkun shot at him,
then the first injury on the deceased could not have at all been caused by
shooting and, therefore, the witnesses were lying. He cited Awadesh v.
State of M.P. (supra) in which this Court did not believe the prosecution
witnesses because of the opinion of the doctor that the person who had
caused the injuries on the deceased was at a higher level than the
deceased and this opinion was wholly inconsistent with the testimony of
the eye-witnesses and the medical expert’s opinion corroborated other
circumstances which indicated that the eye-witnesses had not seen the
actual occurrence. He also relied on Budh Singh v. State of U.P. [AIR
2006 SC 2500] in which this Court has held that from the medical evidence
it appeared that the direction of the injury was from upwards to downwards
and this belies the statements of prosecution witnesses that the accused
and the deceased were in a standing position and were quarrelling with
each other.
24. He finally submitted that the High Court lost sight of the fact that
although the procession started from Muzaffarpur and the speeches were
delivered at Bhagwanpur Chowk the incident took place at Khabra Village
and the car could have been overturned and deceased could have been shot
not by any person coming in the procession but by a person from amongst
the crowd of Khabra Village who had gathered to see the procession.
25. Mr. Nagendra Rai, learned senior counsel appearing for the
respondent in Criminal Appeal No.1539 of 2009 (A-4 Akhlak Ahmad),
submitted that it has come in evidence that the Chief Minister of Bihar
was present at the SKM College and Hospital, Muzaffarpur. He cited the
decision of this Court in Om Prakash v. State of Haryana [(2006) 2 SCC
250], in which this Court considered the presence of Dy. S.P. at the place
of occurrence for about three hours and also considered the fact that
there was no explanation for the long delay in lodging the FIR and gave
the benefit of doubt to the accused persons. He also relied on Ganesh
Bhavan Patel v. State of Maharashtra (supra) wherein this Court took into
consideration the delay in registration of the FIR as a circumstance for
acquitting the accused of the charges.
26. He submitted that the High Court has rightly held that there was no
unlawful assembly with the object of murdering the deceased or any other
person. He submitted that the accused persons could not have shared the
object of Bhutkun to kill the deceased and, therefore, there was no
“common object” which is a necessary ingredient of an unlawful assembly
and hence the offences under Section 147 and 302/149 IPC have not been
made out against the accused persons.
27. He also referred to the evidence of PWs 12, 13 and 20 to show they
have not supported the prosecution case that the killing of the deceased
took place before them and they have stated in their evidence that when
they reached the spot, the shooting incident had already taken place. He
submitted that even PW-1 has stated that no police personnel had reached
the spot where the shooting took place. He argued that PW-21, the
bodyguard of the deceased who is the most material witness had not
supported the case of the prosecution that A-1, A-2, A-3 and A-4 had
exhorted Bhutkun to shoot at the deceased. He submitted that it is
difficult to believe that the police personnel would not have prevented
the killing of the deceased if the killing was about to take place in
their presence. He finally submitted that the photographer, who
accompanied the deceased, though a material witness, has not been examined
in Court and an adverse inference should be drawn against the prosecution
for withholding the photographer from giving evidence in Court.
FINDINGS
28. The first question that we have to decide is whether the wireless
message sent soon after the incident on 05.12.1994 is the real FIR as
contended on behalf of the defence or whether the typed report
subsequently lodged by PW-14 in the Muzaffarpur Sadar Police Station is
the FIR as contended on behalf of the prosecution. Sub-section (1) of
Section 154 Cr.P.c. which provides for the First Information Report is
quoted hereinbelow:
“(1) Every information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police
station, shall be reduced to writing by him or under his direction,
and be read over to the informant; and every such information,
whether given in writing or reduced to writing as aforesaid, shall
be signed by the person giving it, and the substance thereof shall
be entered in a book to be kept by such officer in such form as the
State Government may prescribe in this behalf.”
It will be clear from the language of sub-section (1) of Section 154
Cr.P.C. that every information relating to the commission of a cognizable
offence whether given in writing or reduced to writing shall be signed by
the person giving it. Hence, the person who gives the information and who
has to sign the information has to choose which particular information
relating to the commission of a cognizable offence is to be treated as an
FIR. In the present case, PW-14, the informant has chosen not to treat
the wireless message but the subsequent typed information as the FIR and
the police has also not treated the wireless message but the subsequent
typed information as the FIR. Moreover, the wireless message sent soon
after the incident on 05.12.1994 stated only that the people mixed with
the crowd of funeral procession for the cremation of Chottan Shukla have
injured the deceased by shooting him with revolver and have fled towards
Hajipur by different vehicles. This wireless message was cryptic and did
not sufficiently disclose the nature of the offence committed much less
the identity of the persons who committed the offence. Unless and until
more information was collected on how exactly the deceased was killed, it
was not mandatory for either PW-14 to lodge the same as FIR or for the
Officer Incharge of a police station to treat the same as an FIR. Such
cryptic information has been held by this Court not to be FIR in some
cases. In Sheikh Ishaque and Others v. State of Bihar [(1995) 3 SCC 392]
Gulabi Paswan gave a cryptic information at the police station to the
effect that there was a commotion at the village as firing and brick
batting was going on and this Court held that this cryptic information did
not even disclose the commission of a cognizable offence nor did it
disclose who were the assailants and such a cryptic statement of Gulabi
Paswan cannot be treated to be an FIR within the meaning of Section 154
Cr.P.C. Similarly, in Binay Kumar Singh and others v . State of Bihar
(supra) information was furnished to the police in Ex.10/3 by Rabindra
Bhagat that the sons of late Ram Niranjan Sharma along with large number
of persons in his village have set fire to the houses and piles of straws
and have also resorted to firing. This Court held that Ex.10/3 is
evidently a cryptic information and is hardly sufficient to discern the
commission of any cognizable offence therefrom. In our considered
opinion, therefore, the trial court and the High Court have rightly
treated the subsequent typed written information lodged by PW-14 and not
the wireless message as the FIR.
29. The second question that we are called upon to decide is whether the
typed report of PW-14 which has been treated as the FIR was lodged at
10.10 p.m. on 05.12.1994 as claimed by prosecution or was actually lodged
at the Muzaffarpur Sadar Police Station in the morning of 16.12.1994 as
contended by the defence. We have perused the evidence of PW-14, the
informant. He has stated that after the deceased was injured by a person
with his revolver at about 4.15 p.m. on 05.12.1994, the mob starting
escaping from the main road to Lalganj and some people ran towards Hajipur
and he along with others followed the mob and reached Hajipur at 6 O’
Clock and went to the Circuit House and stayed there for one hour and then
left for Muzaffarpur at 7 O’ Clock. In the impugned judgment, the High
Court did not accept this evidence of PW-14 that he left Hajipur for
Muzaffarpur at 7.00 P.M. as it found that most of the other witnesses had
admitted that they left Hajipur at 9.00 P.M. and PW-11 had admitted that
he left Hajipur at 12.00 in the midnight so as to reach Muzaffarpur at
2.00 A.M. in the night along with others. Though PW-11 has stated in his
evidence that all the people returned from Hajipur Circuit House at 7 O’
Clock, he has also stated in his evidence that he was with the SDO till 12
in the midnight and he went to Garoul, Hajipur, and after apprehending the
accused he returned to Muzaffarpur. PW-11 has further stated that he
returned to the Sadar Police Station at Muzaffarpur at 2 O’ Clock at night
and the DM, SP, SDO, DSP (PW-14) and other officers also returned with
him. Hence, the High Court has held that PW-14 along with other officers
including PW-11 reached Muzaffarpur at 2.00 pm in the night. After
reaching the Sadar Police Station at Muzaffarpur, PW-14 has taken some
more time to lodge the lengthy typed written FIR. PW-14 has stated that
for lodging the FIR at the Muzaffarpur Sadar Police Station he took help
from all the officers present and in fact took the statements of 4-5
officers. He has stated that he made a typed FIR and he took half an hour
to complete the statement and it took one hour to lodge the FIR. On the
basis of all these evidence on record, the High Court did not accept the
version of the prosecution that the FIR was lodged with the Muzaffarpur
Sadar Police Station at 10.10 p.m. on 05.12.1994 and has instead held that
the evidence creates a reasonable suspicion about the FIR being ante dated
and ante timed. We do not find any error in this finding of the High
Court.
30. We now come to the main contention on behalf of the defence that the
High Court should have totally discarded the prosecution story once it
held that the evidence creates a reasonable suspicion about the FIR being
ante-dated and ante-timed. In none of the cases cited by the defence, we
find that this Court has discarded the entire prosecution story only on
the ground that the FIR was ante dated and ante timed. In Ganesh Bhavan
Patel v. State of Maharashtra (supra) relied on by the defence this Court
considered the inordinate delay in recording the statements of witnesses
under Section 161 Cr.P.C. and other circumstances along with the fact that
the FIR was lodged belatedly without proper explanation and then held that
the prosecution case was not reliable. Again, in Marudanal Augusti v.
State of Kerala (supra) cited by the defence, this Court disbelieved the
prosecution story not because of unexplained delay in the dispatch of the
FIR to the Magistrate only but also because the FIR which contained
graphic details of the occurrence with the minutest details did not
mention the names of the witnesses and there were other infirmities to
throw serious doubt on the prosecution story. In Awadesh v. State of
M.P. (supra) relied on by the defence, besides finding that the delay in
lodging the FIR was suspicious, this Court also found that the empty
cartridges were recovered from the place of occurrence one day after the
incident and the medical evidence established that the witnesses had not
actually seen the incident and considering all these circumstances this
Court held that the prosecution had not proved the case beyond reasonable
doubt. This Court has, on the other hand, held in State of M.P. v.
Mansingh and others [(2003) 10 SCC 414] that if the date and time of the
FIR is suspicious, the prosecution version is not rendered vulnerable but
the court is required to make a careful analysis of the evidence in
support of the prosecution case. Thus, we will have to make a careful
analysis of the evidence in this case to find out how far the prosecution
case as alleged in the FIR is true.
31. In the present case, the fact remains that soon after the incident
at about 4.15 P.M. on 05.12.1994 information was sent from the place of
the incident to the District Headquarters of Vaishali district that the
people mixed with the funeral procession for the cremation of Chottan
Shukla have injured the deceased by a revolver and fled towards Hajipur by
different vehicles. At least this part of the prosecution case which
finds place in the subsequent typed FIR lodged by PW-14 in the early hours
of 06.12.1994 cannot be discarded to be false and the court will have to
decide on the basis of evidence as to who amongst the people in the
funeral procession for cremation of Chottan Shukla are responsible for the
injury caused to the deceased.
32. In fact, the High Court also has not accepted the entire version
of the FIR lodged by PW-14 and has rejected the case of the prosecution in
the FIR that there was an unlawful assembly and that A-1 to A-7 were part
of that unlawful assembly with the object of killing the deceased. The
High Court has held in the impugned judgment that the mob which surrounded
the car of the deceased caused damage to the car by throwing brickbats and
caused injuries to its occupants after pulling them out and had turned
into an unlawful assembly but from the evidence on record and the
circumstances it is not established that even the members of such mob
shared the common object of killing the deceased. The High Court has
further held that some of the processionists who were in the vehicles
close to the place of occurrence could have come out from their vehicles
to find out the reasons for the commotion but when nobody was even aware
that the deceased would be passing through the place such persons cannot
be held to be members of unlawful assembly actuated by the common object
of killing the deceased. The High Court has also held that there were no
allegations that the processionists were carrying any arms and there was
insufficient evidence about the exact behaviour of the assembly at the
scene of the occurrence. The High Court has further held that the driver
and the bodyguard of the deceased have stated in their evidence that the
car could not pass on the left side of the road because of presence of a
mob on the flank of the road while the funeral procession was moving and
this shows that the attack on the car of the deceased and its occupants
was a sudden act of the mob which had gathered to watch the funeral
procession near Khabra Village. The High Court has found that the driver
and the bodyguard of the deceased have not said anything in their evidence
on what led to the anger of the mob and instead they had been anxious to
show that they had committed no mistake due to which the deceased was
killed. The High Court has thus held that the processionists, who were
going with the dead body on motor vehicle, did not have any common object
and therefore did not constitute an unlawful assembly and hence A-1 to A-7
could not be held liable for the offence under Section 302/149 IPC on the
ground that they were members of an unlawful assembly which had the object
of killing the deceased or any other person. In our considered opinion,
the High Court rightly rejected the contention of the prosecution that A-1
to A-7 were liable for conviction under Section 302/149 IPC.
33. The High Court after carefully scrutinizing the evidence of the
witnesses has also discarded the prosecution story in the FIR lodged by PW-
14 that A-2, A-3 and A-4 had exhorted Bhutkun Shukla to kill the deceased.
The High Court has held that none of the eye-witnesses of Category-II
comprising the civil officials, the driver and the bodyguard, namely, PW-
12, PW-13, PW-17 and PW-21 have supported the allegations of exhortation
by A-1 to A-7 and out of the Category-I witnesses comprising Police
Personnel, PW-5 and PW-9 have not heard anyone exhorting Bhutkun Shukla to
kill the deceased. The High Court has further held that out of the
seventeen alleged eye-witnesses, six witnesses do not speak of exhortation
and out of the remaining eleven prosecution witnesses, six witnesses
namely, PW-1, PW-3, PW-4, PW-9, PW-10 and PW-14, have said that only A-1
exhorted Bhutkun Shukla to shoot at the deceased. Accordingly, the High
Court has recorded the finding that only A-1 exhorted the lone shooter to
kill the deceased and was guilty of the offence of abetment under Section
109 IPC and was liable for punishment under Section 302/109 IPC for the
murder of the deceased and A-2, A-3 and A-4 have to be acquitted of the
charges under Section 302/109 IPC.
34. We have gone through the evidence of the witnesses and we find that
this finding of the High Court that A-2, A-3 and A-4 cannot be held guilty
of the offences under Section 302/109 IPC is based on a correct
appreciation of evidence of the prosecution witnesses. Out of fourteen
witnesses who accompanied the procession, only four witnesses, namely, PW-
6, PW-7, PW-8 and PW-11 have said that A-2 along with A-1 exhorted Bhutkun
Shukla to shoot at the deceased, whereas the remaining eight do not say
that A-2 also exhorted Bhutkun Shukla to shoot at the deceased.
Similarly, out of the fourteen witnesses who accompanied the procession,
only PW-7 and PW-8 have spoken of exhortation by A-3 to Bhutkun Shukla to
shoot at the deceased and the remaining eleven witnesses have not said
that A-3 also exhorted Bhutkun Shukla to shoot at the deceased. Again out
of the fourteen witnesses examined by the prosecution, only PW-7 and PW-11
have said that A-4 also exhorted Bhutkun Shukla to shoot at the deceased,
but the remaining twelve witnesses have not said that A-4 also exhorted
Bhutkun Shukla to shoot at the District Magistrate. This Court has held
in Jainul Haque v. State of Bihar (supra) that evidence of exhortation is
in the very nature of things a weak piece of evidence and there is often
quite a tendency to implicate some person in addition to the actual
assailant by attributing to that person an exhortation to the assailant to
assault the victim and unless the evidence in this respect is clear,
cogent and reliable, no conviction for abetment can be recorded against
the person alleged to have exhorted the actual assailant. Since the
majority out of the fourteen prosecution witnesses comprising both
civilian and police personnel accompanying the procession do not support
the prosecution version that A-2, A-3 and A-4 also exhorted Bhutkun Shukla
to shoot at the deceased, it will not be safe to convict A-2, A-3 and A-4
for the offence of abetment of the murder of the deceased. In our view,
therefore, the High Court was right in acquitting A-2, A-3 and A-4 of the
charge under Section 302/109 IPC.
35. In Masalti vs. State of U.P. (supra), this Court has held that where
a criminal court has to deal with the evidence pertaining to the
commission of offence involving large number of offenders and large number
of victims, it is usual to adopt a test that the conviction could be
sustained only if it is supported by two or three or more witnesses who
give a consistent account of the incident. In this case, ten out of the
fourteen witnesses who were accompanying the procession and were near the
place of occurrence have given a consistent version that A-1 exhorted
Bhutkun Shukla to shoot at the deceased. PW-1, PW-3, PW-4, PW-6, PW-7, PW-
8, PW-9, PW-10, PW-11 and PW-14, have consistently deposed that A-1
exhorted Bhutkun Shukla to shoot at the deceased. The remaining four
witnesses may be at the place of occurrence but for some reason or the
other may not have heard the exhortation by A-1 to Bhutkan to shoot at the
deceased. Hence, just because four of the fourteen witnesses have not
deposed regarding the fact of exhortation by A-1, we cannot hold that the
ten witnesses have falsely deposed that A-1 had exhorted Bhutkun to shoot
at the deceased.
36. We have also considered the submission of the defence that these
witnesses have deposed that the deceased was shot by Bhutkun Shukla when
he was lying injured on the ground but the medical evidence establishes
that the bullets were fired when the deceased was in the standing position
and on this ground the evidence of these ten witnesses who have deposed
with regard to exhortation by A-1 to Bhutkun Shukla to shoot at the
deceased should be discarded. We find that PW-16, Dr. Momtaj Ahmad who
carried out the post mortem on the dead body of the deceased on 05.12.1994
at 4.40 P.M. has described in his evidence the following three ante mortem
injuries on the body of the deceased:
“(1)(a) Due oval wound 1/3” in diameter with inverted margin and
burning of the area on lateral side of the left eye brow.
(b) lacerated injury internal cavity deep with inverted margin was
found on central part of forehead just above eye brow 3” x 1.2”
into internal cavity from which fractured piece of frontal bone and
brain material was prodding out.
On dissection the two wound were found interconnected.
(ii) One oval wound ¼” in diameter with inverted margin was found
at left cheek.
On dissection maxilla and mandible were found fractured and tongue
and inner part of lower lip was found lacerated. The projectile
after entering the left cheek and damaging above organs have passed
away from oval cavity.
(iii) One oval wound with interverted margin and singling and
burning of the margin ¼” in diameter was found on right parietal
region of head;
(b) One oval wound 1.3” x ½’’ into internal cavity deep with
everted margin was found on left parietal region of head.
On dissection two wounds were found interconnected with facture of
skull bone into so many pieces and laceration of brain tissue.”
PW-16 has further stated in his evidence that out of these 3 wounds, 2
were on the left side and one on the right side of the body. In his cross
examination, PW-16 has stated:
“34. The projectile may travel in the body even in standing or
sleeping position.
38. Injury No.II indicates that the patient may be able to move his
face. From my postmortem report it appears that only after causing
injury No.II the other injury No.III was caused. After sustaining
injury No.III the one could not be moved and as such injury No.1
might not have been inflicted. On parity of logic vice versa is
also correct. Thus injury No.(i) was caused before injury No.II
(Volunteers that instead of definite was or were, if they should be
read may and might)”
The evidence of PW-16 is clear that the projectile may travel in the body
even in standing or sleeping position. PW-16 has stated that injury No.I
may have been caused and thereafter injury No.II may have been caused.
Moreover, injury No.II indicates that the deceased may have been able to
move his face. He has also stated that from the postmortem report it
appears that only after causing injury No.II the other injury No.III may
have been caused. Thus, the argument of Mr. Ranjeet Kumar that after the
injury No.II on his left cheek, the deceased may have turned his face and
thereafter injury No.III on the left parietal region of his head may have
been caused cannot be rejected. We cannot, therefore, hold that the
medical evidence is such as to entirely rule out the truth of the evidence
of the prosecution witnesses that the deceased was shot when he was lying
injured on the ground.
37. We may now deal with the contention of the defence that the High
Court did not take into consideration the evidence of PW-17 and PW-21, who
were the driver and the bodyguard of the deceased respectively, and who
did not support the prosecution case. We have gone through the evidence
of PW-17 (driver) who has stated that the people participating in the
procession surrounded the car of the deceased and were shouting ‘maro
maro’ and that they pulled out the deceased and the bodyguard and then
began to assault them, but he escaped and hid behind the vehicle and after
a gap of five to six minutes when he returned he found the procession was
not there but the police was present there with their vehicles and he saw
the deceased lying on the road in injured condition and the car of the
deceased was lying inverted and thereafter the deceased was carried to the
Hospital in the police vehicle and he also went in the same vehicle to the
Hospital and later on he came to know that the deceased was dead. We have
also gone through the evidence of PW-21 (bodyguard) who has deposed that
the crowd was shouting ‘maro maro’ and they beat him, the driver as well
as the deceased and turned the vehicle and they sustained injuries and
after some time the police came over there and the stampede started and
police sent the deceased and him to the Hospital and he came to know that
the deceased was dead. Both PW-17 and PW-21, therefore, are silent with
regard to exhortation by A-1, A-2, A-3 and A-4 to Bhutkun to shoot at the
deceased. It appears that PW-17 and PW-21 were not aware of any shooting
incident at all and they were under the impression that the deceased had
been injured by the assault of the mob after he was pulled out from the
car. PW-17 and PW-21, in our considered opinion, do not seem to know what
exactly happened after they were pulled out from the car and beaten up by
the mob. On the basis of their evidence, the Court cannot discard the
evidence of ten other witnesses that the deceased was shot by Bhutkun with
the revolver on the exhortation of A-1 when the medical evidence
established that the cause of death of the deceased was on account of the
bullet injuries on the deceased and not the assault by the mob. Moreover,
PW-17 and PW-21 may not have supported the prosecution case but their
evidence also does not belie the prosecution case that the deceased was
shot by Bhutkun on the exhortation by A-1.
38. We now come to the submission of Mr. Jethmalani that as A-1 was
sitting in a Contessa car which was in the front of the procession and as
the killing of the deceased took place in the middle of the procession,
the evidence of the eye-witnesses should be discarded as not probable.
The prosecution has been able to adduce evidence through its witnesses
that at the time of shooting of the deceased, A-1 was at the spot and was
exhorting Bhutkun Shukla to shoot at the deceased. If A-1 wanted the
Court to believe that at the time of the incident he was in the Contessa
car in the front of the procession and not at the spot, he should have
taken this defence in his statement under Section 313 Cr.P.C. and also
produced reliable evidence in support of this defence. Section 103 of the
Indian Evidence Act, 1872 provides that the burden of proof as to any
particular fact lies on that person who wishes the Court to believe in its
existence, unless it is provided by any law that the proof of that fact
shall lie on any particular person. The prosecution by leading evidence
through its several witnesses has established that A-1 was at the place of
occurrence and had exhorted Bhutkun Shukla to shoot at the deceased. If A-
1 wanted the Court to reject this prosecution version as not probable,
burden was on him to lead evidence that he was not at the spot and did not
exhort Bhutkun Shukla to shoot at the deceased. Since he has not
discharged this burden, the High Court was right in holding that A-1 was
guilty of the offence under Section 302/109 IPC.
39. Regarding the sentence, the High Court has held that though the
deceased was a District Magistrate, he was killed in another district as
an occupant of a car by chance on account of mob fury and exhortation by A-
1 and firing by Bhutkun Shukla and as A-1 was not the assailant himself,
rigorous imprisonment for life and death sentence would not be the
appropriate sentence. We agree with this view of the High Court and we
are of the view that this was not one of those rarest of rare cases where
the High Court should have confirmed the death sentence on A-1. In our
considered opinion, A-1 was liable for rigorous imprisonment for life.
40. In the result, we do not find any merit in either the appeal of A-1
or the appeals of the State and we accordingly dismiss all the criminal
appeals.
.……………………….J.
(A. K.
Patnaik)
………………………..J.
New Delhi, (Swatanter Kumar)
July 10, 2012.
