SHEIKH JUMAN & ANR.ETC. Vs. STATE OF BIHAR

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 484-487 of 2008, Judgment Date: Feb 23, 2017

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.484-487 of 2008

SHEIKH JUMAN & ANR. ETC. ... APPELLANT(S)

:VERSUS:

STATE OF BIHAR ... RESPONDENT(S)

JUDGMENT

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
years.

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
prosecution.

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
act.”

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.

…………………………………..J.
(Pinaki Chandra Ghose)

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

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