Sunday, February 26, 2017

We have seen in the instant case that the witnesses have vividly deposed about the genesis of the occurrence, the participation and involvement of the accused persons in the crime. The non-examination of the witnesses, who might have been there on the way to hospital or the hospital itself when deceased narrated the incident, would not make the prosecution case unacceptable. Similarly, evidence of any witness cannot be rejected merely on the ground that interested witnesses admittedly had enmity with the persons implicated in the case. The purpose of recoding of the evidence, in any case, shall always be to unearth the truth of the case. Conviction can even be based on the testimony of a sole eye-witness, if the same inspires confidence. Moreover, prosecution case has been proved by the testimony of the eye-witness since corroborated by the other witnesses of the occurrence. We are constrained to reject the submissions made on behalf of the appellants.In the instant case, the witnesses, as the High Court has found and we have no reason to differ, are reliable and have stood embedded in their version and remained unshaken. They have vividly deposed about the genesis of occurrence, the participation and involvement of the accused persons in the crime and the injuries inflicted on the deceased, and on each of them.Thus, in the light of the above discussion, we are of the view that the present appeals are devoid of merits and the judgment passed by the High Court does not warrant interference. These appeals are, accordingly, dismissed.

                        IN THE SUPREME COURT OF INDIA
                     CRIMINAL APPEAL NOS.484-487 of 2008
      SHEIKH JUMAN & ANR. ETC.     ...        APPELLANT(S)

      STATE OF BIHAR                 ...           RESPONDENT(S)


      Pinaki Chandra Ghose, J.
   1. These appeals are directed against the judgment and  order  dated  5th
      October, 2007 passed by the High  Court  of  Judicature  at  Patna  in
      Criminal Appeal Nos.122, 92, 98 and 123  of  2003,  whereby  the  High
      Court while confirming  the  conviction  of  the  appellants  and  the
      sentence of life term, commuted the death sentence of  Sheikh  Shamsul
      and Sheikh Gheyas, to imprisonment for life and dismissed the appeals.

   2. The brief facts necessary to dispose of  these  appeals  are  that  on
      19.01.1991 at about 6:00 pm, one Askari (since deceased), who happened
      to be the nephew of the informant (PW14) was at his grocery shop  when
      appellants armed with bomb explosives and guns  came  near  his  shop.
      Appellant Sheikh Shamsul hurled a bomb at the deceased and as a result
      of the explosion Askari fell down on the Gaddi of  the  shop.  In  the
      meanwhile, appellant Sheikh Ashfaq also attacked him by a  bomb  which
      hit him on the chest and exploded and consequently Askari died at  the
      Gaddi itself.  Informant’s another nephew, namely, Mohd. Asad, who was
      at the Flour Mill just opposite the shop of Askari, hearing the  sound
      of explosion came running to the shop and he was also  attacked  by  a
      bomb by accused Sheikh Gheyas. Due to explosion Mohd.  Asad  sustained
      severe injury, fell down near the shop  and  became  unconscious.  Md.
      Vasir (PW1) who was standing there was also injured.  On  hearing  the
      sound of the bomb explosion, villagers assembled there and  appellants
      fled away towards North, firing shots in the air. Injured  Mohd.  Asad
      was taken to Bhagalpur hospital by the villagers in critical condition
      but he succumbed to injuries at the hospital on the same day.

   3.  Motive of the  occurrence,  according  to  first  information  report
      (‘FIR’), is that two years prior  to  the  occurrence,  a  case  under
      Section 307 of IPC was filed by the informant against  the  appellants
      and  they  were  threatening  the  informant  to  withdraw  the  case,
      otherwise they would eliminate the whole family.

   4. The law was set into motion upon lodging of FIR  by  PW14  (informant)
      arising out of Fardbeyan being Ext. No.7 on the same day at 10:00  pm,
      at Shahkund Police Station. The FIR was registered as C.R. No.I-69  of
      2009. The post-mortem of the deceased was performed by Dr. H.I. Ansari
      (PW13). Looking to the post-mortem  note  of  deceased  Mohd.  Askari,
      marked Annexure A-13, there were found  explosive  blast  injuries  on
      chest cavity deep, face; both lungs and hear were  lacerated.  As  per
      the Post-mortem Report of deceased Mohd. Asad, there were found  blast
      explosive injury on abdominal cavity; lacerated and  bruise  skin  and
      lever. Both the deceased died due to injuries caused by powerful  bomb
      blast as per above stated post-mortem reports marked Ext.13 and 13/13.

   5. Upon completion of investigation and submission of the  charge  sheet,
      Sessions Case  No.309/22  of  1993/1999  was  registered  against  the
      accused. Thereafter, the Court of 1st Additional District  &  Sessions
      Judge, Bhagalpur, framed charges against the accused persons  for  the
      offences punishable under Sections 302, 302 read with Section  149  of
      IPC, Sections 3, 4 of the Explosive Substances Act, and Section 27  of
      the Arms Act. After they denied the said charges in their  statements,
      the evidence of prosecution witnesses was recorded.

   6.  After  recording  the  evidence  of  the  prosecution  witnesses  and
      considering all the relevant facts, the Trial Court vide its  judgment
      and order dated 4.02.2003 convicted accused No.3,  8  and  9  for  the
      offence punishable under section 302 of  IPC  and  Sections  3,  4  of
      Explosive Substances Act and sentenced accused  Nos.3  and  9  (Sheikh
      Shamsul and Sheikh Gheyas) to death since the Court did  not  want  to
      give them opportunity to commit third homicide  as  they  had  already
      been convicted previously in some other homicidal death case.  Accused
      No.8 was sentenced to imprisonment for life. The accused  No.7  Sheikh
      Chengwa was convicted for offence punishable under  Section  302  read
      with Section 149 IPC and Sections 3 & 4 of  the  Explosive  Substances
      Act and sentenced him to rigorous imprisonment for 10 years.  Rest  of
      the accused were convicted for the offences punishable  under  Section
      302 read with Section 149 of IPC and Section 27 of the  Arms  Act  and
      sentenced to undergo rigorous  imprisonment  for  a  period  of  three

   7. Being aggrieved by the aforesaid  judgment  and  order  of  the  Trial
      Court, the accused persons filed appeals before the High Court.  While
      1st Additional Sessions Judge, Bhagalpur, made Death Reference No.2 of
      2003 vide letter dated 18.02.2003 for confirmation of death  sentence,
      Criminal Appeals Nos.92, 98, 122-126 of 2003  were  preferred  by  the
      accused persons seeking acquittal.

   8. The High Court vide its judgment and order dated  5th  October,  2007,
      rejected the death reference and also dismissed the aforesaid  appeals
      filed by accused persons and confirmed their conviction. However,  the
      death sentence of accused Sheikh Samsul and Sheikh Gheyas was commuted
      to imprisonment for life. Aggrieved  by  the  aforesaid  judgment  and
      order passed by the High Court, the accused  persons  have  sought  to
      challenge the same before us in these appeals.

   9. Keeping in mind the position of law as enunciated in the case of Ganga
      Kumar Srivastava Vs. State of Bihar, (2005) 6 SCC 211,  pertaining  to
      the principles for  exercise  of   power  under  Article  136  of  the
      Constitution of India and settled by a series  of  decisions  of  this
      Court, we shall now examine the evidence adduced by  the  parties  and
      the materials on record and see that in view of the nature of  offence
      alleged  to  have  been  committed  by  the  appellants,  whether  the
      concurrent findings of fact call for interference  in  the  facts  and
      circumstances of the case.

  10. In the present case, there are concurrent findings of both the  Courts
      below as to the guilt of the  accused  persons.  The  High  Court  has
      discussed  basically  four  issues   in   its   judgment,   viz.   (a)
      interpretation of Section 172 of Code of Criminal Procedure, 1973; (b)
      veracity of the evidence  adduced;  (c)  relevance  of  overt  act  in
      conviction under Section 149 of the Penal Code; and (d) rarest of  the
      rare cases theory for confirming death sentence.

  11. On the first issue, the High Court  has  observed  that  police  dairy
      cannot be used as evidence in the case but to aid it in  such  inquiry
      or trial, while relying upon the judgment  of  this  Court  in  Habeeb
      Mohammad Vs. State of Hyderabad, AIR 1954 SC 51: 1954 SCR 475, wherein
      it was held that when attention of a  witness  is  not  drawn  to  his
      previous statement during the course of investigation, same cannot  be
      looked into in exercise of powers under Section 172(2) of the Code  of
      Criminal Procedure.  Apropos second issue, it was observed by the High
      Court that failure of witness to go to police station  and  lodge  the
      report on time without delay, and minor contradictions  pertaining  to
      presence of customers at the shop, in no way, affects the case of  the

  12. High Court further found distinction between judgments  given  in  the
      case of Shambhu Nath Singh Vs. State of Bihar, AIR  1960  SC  725  and
      that of Ram Dular Rai & Ors. Vs. State of Maharashtra,  1961  SCR  (2)
      773, though  both  the  judgments  discuss  Section  149  of  the  IPC
      pertaining to unlawful assembly. With regard to third  issue,  it  was
      observed by the High Court that merely because  informant  (PW14)  was
      left unharmed or that all appellants did not enter into the shop,  the
      prosecution case cannot be rejected, since overt  act  of  acting  and
      omitting with regard to common object was proved  after  appraisal  of
      the evidence in the Court below. In support of the fourth  issue,  the
      High Court while relying upon its earlier judgments in State of  Bihar
      Vs. Sanjeet Rai and Anr., 2006 (4) PLJR 479 and  State  of  Bihar  Vs.
      Prajeet Kumar Singh, 2006 (2) PLJR 656, rejected the  death  reference
      holding that the case was not falling in the  category  of  rarest  of
      rare cases.

  13. While upholding the judgment and order of  conviction  passed  by  the
      Trial Court, the High Court has primarily relied upon the evidence  of
      eye-witnesses, PW14, PW4, PW5 and PW9 who were found to be trustworthy
      and reliable. The High Court held that the accused  were  sharing  the
      common object of doing away the deceased. However, from a  perusal  of
      the cross examinations of PW4 and  PW5,  it  appears  that  there  was
      personal enmity and PW3, PW4, PW14 were made  accused  in  a  case  of
      murder of Asfak, son of Sheikh Samsul, appellant herein. PW14 had also
      filed a case under Section 307 of IPC against the appellants two years
      prior to the date of the incident which was still pending.

  14. Further, looking to the evidence given by  PW9,  though  not  an  eye-
      witness, the factum of assault with a bomb on deceased Mohd. Asad  was
      corroborated. According to him he is also a witness to the seizure  of
      empty cartridge from Sheikh Ishteyaque.

  15. Mr. Huzefa Ahmadi, learned senior  counsel  for  appellants  contented
      that both the Courts below have committed an error in  convicting  the
      appellants for the offence punishable under Section  302  IPC,  along-
      with other accused. He submitted that there were material improvements
      made by PW14 in his deposition when compared to the fardbeyan given to
      the police on the date of the incident and no specific role  has  been
      attributed to the present appellants. But after  careful  analysis  of
      the fardbeyan (Ext.7), we have an entirely different  opinion.  It  is
      true that deposition is somewhere literally larger than the fardbeyan,
      however, it is no where contrary to it. It may rightly  be  said  that
      the deposition of PW14 is merely elaborated form of statement recorded
      before the police, with  minor  contradictions.  Oral  evidence  of  a
      witness could be looked with suspicion  only  if  it  contradicts  the
      previous statement.

  16. He further submitted that narration of the incident  by  the  deceased
      Asad to PW3, as stated by  PW3,  is  only  to  falsely  implicate  the
      present appellants. According to him, such  deposition  is  improbable
      since PW15 – Investigating Officer  of  the  case  and  PW12  did  not
      narrate that deceased had regained consciousness and named the accused
      and no other witness was examined to  prove  the  fact  that  deceased
      regained consciousness and most importantly no  recovery  of  gun  has
      been made. Thus, the prosecution  case  is  shrouded  with  reasonable
      doubt. It was further argued that in the light  of  judgment  of  this
      Court in the case of K. M. Ravi  and  Ors.  Vs.  State  of  Karnataka,
      (2009) 16 SCC 337, the appellants holding outside shop cannot be  held
      guilty, wherein it was held that “mere presence  or  association  with
      other members alone does not per se be sufficient to hold everyone  of
      them criminally liable for the offences committed by the others unless
      there was sufficient evidence on record to show  that  one  such  also
      indented to or knew the likelihood of commission of such an  offending

  17. Reliance was further placed on the judgment of this  Court  in  Jodhan
      Vs. State of Madhya Pradesh, (2015) 11 SCC 52, wherein it was held  in
      paragraphs 25 & 26 that if the testimony is of an  interested  witness
      who have a motive to falsely implicate  the  accused  then  the  Court
      before relying upon his testimony should seek corroboration in  regard
      to material particulars. In paragraphs 28 & 29 also it was  held  that
      the testimony of the injured witness stands on a higher pedestal  than
      other witnesses and reliance should be placed on it unless  there  are
      strong grounds for rejection of his evidence. [See also  Hem  Raj  and
      Ors. Vs. State of Haryana, (2005) 10 SCC 614]

  18. Finally, it has been argued by the learned  senior  counsel  appearing
      for the appellants that the post-mortem report does  not  support  the
      prosecution story that injury was caused only by a powerful  bomb.  It
      was submitted that both the deceased were not close to each other  and
      deceased Asad was running towards the shop when a bomb  was  allegedly
      thrown at him. Other accused were standing with guns  in  their  hands
      but they did not share the common object  and  hence  cannot  be  held
      liable. In support of this, learned senior counsel relied on the  case
      of Bhim Rao and Ors. Vs.  State  of  Maharashtra,  (2003)  3  SCC  37,
      wherein it was observed:
           “In the absence of any material to the contrary,  it  should  be
           presumed that those members of the  original  unlawful  assembly
           who  only  shared  the  common  object  of  assaulting  deceased
           Prabhakar cannot be attributed with the subsequent change in the
           common object of some of the members of the assembly who entered
           the house of Prabhakar and caused grievous injuries to  him.  So
           far as the present appellants are concerned, who  stood  outside
           the house of the deceased and who  could  not  have  known  what
           actually transpired inside the house, the act of  those  members
           of the original unlawful assembly who entered the house,  cannot
           be attributed, hence, as contended by the  learned  counsel  for
           the appellants at the most these appellants will be liable to be
           punished for sharing the original common object which is only to
           assault the deceased, therefore, they can be held guilty  of  an
           offence   punishable   under Section    352 read    with Section
           149 only.”

  19. Mr. Ravi Bhushan, learned counsel appearing for the  respondent-State,
      on the other hand, supported the  order  of  conviction  and  sentence
      passed by both the Courts below. He submitted that judgments cited  by
      the counsel for appellants have no point relevant to the present case.
      The judgment given in the case of K. M. Ravi (supra), is not  relevant
      in whatsoever manner to the present case,  as  in  the  present  case,
      there was facilitating the act  of  hurling  of  bombs  by  the  other
      accused persons as well as captivating the relatives of  the  deceased
      so as to prevent them to come to his rescue. This shows  their  active
      participation in the crime though having overt act of  merely  holding
      guns outside the place of occurrence.

  20. It was further argued that the  position  cited  in  Bhim  Rao’s  case
      (supra) is different from that of the present  case.  PW14  and  other
      witnesses present with him were  prevented  from  saving  the  victims
      while bombs were hurled  at  the  deceased.  While  relying  upon  the
      evidence of PW4,  PW5,  PW6  and  PW16  and  other  witnesses,  it  is
      corroborated that after hurling of bomb  by  Shamsul  and  Ashfaq  the
      appellants fled away by firing in the air. One of the  appellants  was
      caught with hot cartridge tied in his lungi by PW-16 and this fact has
      been corroborated by PW7, PW9, PW14, PW15  and  PW16.  Therefore,  the
      prosecution case  leaves  no  room  for  doubt  whatsoever  about  the
      commission of offence by the appellants.

  21. We have seen in the instant  case  that  the  witnesses  have  vividly
      deposed about the genesis of the  occurrence,  the  participation  and
      involvement of the accused persons in the crime.  The  non-examination
      of the witnesses, who might have been there on the way to hospital  or
      the hospital itself when deceased narrated  the  incident,  would  not
      make the prosecution case unacceptable.  Similarly,  evidence  of  any
      witness cannot be  rejected  merely  on  the  ground  that  interested
      witnesses admittedly had enmity with the  persons  implicated  in  the
      case. The purpose of recoding of the  evidence,  in  any  case,  shall
      always be to unearth the truth of the case.  Conviction  can  even  be
      based on the testimony of a sole eye-witness,  if  the  same  inspires
      confidence.  Moreover,  prosecution  case  has  been  proved  by   the
      testimony of the eye-witness since corroborated by the other witnesses
      of the occurrence. We are constrained to reject the  submissions  made
      on behalf of the appellants.

  22. Keeping the facts and circumstances of the present case  in  mind,  we
      wish to emphasize the judgment of this Court in Jodhan’s case  (supra)
      and the relevant part of the judgment is reproduced hereunder:
           “On the bedrock of  the  aforesaid  pronouncement  of  law,  the
           submission  canvassed  by  Mr.  Sharma  does   not   merit   any
           consideration inasmuch as  the  prosecution  has  been  able  to
           establish not only the appellant’s presence but also his  active
           participation as a member of the unlawful assembly. He might not
           have thrown the bomb at the deceased, but thereby  he  does  not
           cease to be a member of  the  unlawful  assembly  as  understood
           within the ambit of Section 149 IPC and there is ample  evidence
           on record to safely conclude that all the  accused  persons  who
           have been convicted by the High Court  had  formed  an  unlawful
           assembly and there was common object to assault the deceased who
           succumbed to the injuries inflicted on him. Thus  analysed,  the
           submission enters into the realm of total insignificance.”

  23. In the instant case, the witnesses, as the High Court has found and we
      have no reason to differ, are reliable  and  have  stood  embedded  in
      their version and remained unshaken. They have vividly  deposed  about
      the genesis of occurrence, the participation and  involvement  of  the
      accused persons in  the  crime  and  the  injuries  inflicted  on  the
      deceased, and on each of them.

  24. Thus, in the light of the above discussion, we are of  the  view  that
      the present appeals are devoid of merits and the  judgment  passed  by
      the High Court does  not  warrant  interference.  These  appeals  are,
      accordingly, dismissed.

                                     (Pinaki Chandra Ghose)

                                     (Ashok Bhushan)
      New Delhi;
      February 23, 2017.

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