DEATH REFERENCE No.4 of 2010 STATE OF BIHAR ------------- Appellant Vrs. MD. ZAHID @ COMMANDO @ Md. ZAHIR ANJUM---Respondent. With CRIMINAL APPEAL(D.B.) No.474 of 2010 Against the judgement of conviction and order of sentence dated 31.3.2010 and 1.4.2010 passed by Additional Sessions Judge(F.T.C.- III), Saharsa in Sessions Trial No.219 of 1999/096 of 2000, 011 of 2005 and 11A of 2005. MD. ZAHID @ COMMANDO @ MD. ZAHIR ANJUM----------Appellant Versus STATE OF BIHAR-----------------------------Respondent ------- For the appellant:- Sri Shakeel Ahmad Khan,Sr.Advocate Sri Sajid Salim Khan,Advocate. For the State:- Sri Ashwini Kumar Sinha, A.P.P. P R E S E N T THE HON‟BLE SMT. JUSTICE MRIDULA MISHRA THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The present death reference and the connected criminal appeal arise out of judgement of conviction dated 24.3.2010 passed by the Presiding Officer of Fast Track Court No.III, Saharsa jointly in a set of four Sessions Trials in which 24 accused persons including appellant Md. Zahid alias Commando @ Md. Zahir Anjum were put on trial. While the present appellant was convicted of committing the offence under Section 302 of the IPC, the remaining accused persons, i.e., 23 other accused were acquitted of 2 various charges. After hearing the appellant on sentence on 1.4.2010 the learned trial Judge directed the appellant to be hanged by his neck till he was dead. The sentence of death requiring the confirmation from this court, the records were directed to be submitted to this Court and that gave rise to the present Death Reference. 2. The solitary appellant Md. Zahid @ Commando @ Md. Zahir Anjum respondent in the Death Reference also preferred the appeal under reference. 3. Both the matters were heard together and are being disposed of by the present common judgement. 4. Late Satyapal Kumar Singh was the Deputy Superintendent of Police and was posted in the district police headquarters, Saharsa. He had some information that a group of criminals headed by the present appellant Md. Zahid @ Commando @ Md. Zahir Anjum wanted in many cases of murder dacoity, robbery and other offences of serious nature, were hiding in the double storey-building(Basa) of Md. Zafar Alam(an accused since acquitted)situated at village Nonha Chamarahi and they might commit other serious offences if prompt action was not taken against them. The deceased Dy.S.P. summoned the informant Shailesh Mishra (P.W.13) to his office where he found other police officers, like, Sub-Inspector (SI for short), 3 Kuldeep Paswan, Officer-in-Charge of Salakhua police station, S.I. Shiv Kumar Singh(P.W.20), Officer-in- Charge of Bakhtiarpur police station, S.I. Rampravesh Singh(P.W.21), Officer-in-Charge of Sonbarsa Kutchery police station and S.I.Devesh Jha(not examined)of Bakhtiarpur police station also present at the residence of the deceased Dy.S.P. The deceased related the above information to the informant and other Officers and constituted a raiding party. Three sections of armed police forces were requisitioned from the police lines, Saharsa and all the officers headed by the deceased Dy.S.P., started for their destination at 11 P.M. so as to carrying out the raid and arresting the criminals. They crossed rivers and reached the house where the criminals had hidden themselves at about 4.30 A.M. The police force laid a seize around the house at 6.30 A.M. The Dy.S.P. along with some officers, like, the officer-in-charge of Salakhua police station, attempted to get the doors of the house opened. Some criminals peeped down from the top of the house and Chaukidar Yogendra Sharma(P.W.24)and Chaukidar Saryug Tanti(P.W.23)as also constable Md. Azam(not examined due to his death), identified the present appellant Md. Zahid @ Commando @ Md. Zahir Anjum and few others, like Md. Maheed, Md. Anjum, Md. Guddu, Md. Imo whereas others 4 2-3 criminals could not be identified. 5. The Dy.S.P. started commanding the criminals to surrender by shouting out that if they did not surrender, each one of them had to be shot dead. Hearing this, the criminals started firing indiscriminately at the police party. The Dy.S.P. also directed his accompanying police force to return the fires and himself fired two rounds from his revolver. During the course of firing and cross-firing P.W.5 Hawaldar Ganesh Rajak was hit by gun shot on his belly and right hand and he became injured. The criminals kept firing at the police party and the Dy.S.P. also egged on his police force to give a fierce fight and kill each and every criminal and, accordingly, the police force kept returning the fire. Some criminals also arrived there in help of the criminals already atop the building and started firing at the police force from south- west and east-south. In the meantime, Additional Superintendent of Police, Sadar, Saharsa, Sri Anil Kishore Yadav(P.W.19) also reached there with reinforcement with S.I. J.B.Prasad, Officer-in-Charge of Sonebarsa, S.I. Sushil Kumar Yadav, Officer-inCharge of Bihara, S.I. Nirmal Kumar, Officer-in-Charge of Bangaon police station and they along with their respective forces retaliated firings by other criminal groups from south west and east upon 5 the police force. Due to the firing made by the additional force which had reached and which had fired at the criminals who were firing from the ground, they started running away as a result of which Dy.S.P. again asked his force to keep attacking the criminals and himself came into the house with tiled roof from the pucca house occupied by the criminals and kept firing at the criminals along with the police force. In the meantime, a shot fired by the criminals hit the Dy.S.P. Satyapal Singh in his chest and he fell down there and when the informant rushed to take care of the Dy.S.P. he found that S.I. Ram Pravesh Singh (P.W.22) was also injured. The informant shouted about the Dy.S.P. being injured by a shot fired by the criminals. All the policemen came together to take care of the Dy.S.P. Taking advantage of the situation, the criminals ran away from there after getting down the roof top of the house towards south and west. The Dy.S.P. died there. 6. Chaukidar (P.W.10) and Dafadar(P.W.9) came and pointed out the names of other criminals belonging to the gang of one Kailu Miyan, who had fired at the police party. The informant stated that the house in which the criminals had hidden themselves was searched. Nine empties .30-0.6 ammunition from the roof top, a diary from a room and a few letters 6 written in Hindi and Urdu were duly seized. 7. The written report(Ext-2) about the incident was presented by P.W.13 S.I. Shailesh Mishra, Officer-in-Charge of Salakhua police station, as a result of which Salakhua P.S.Case No.91 of 1998 was registered by drawing up the FIR, Ext-10. The investigation was handed over to S.I. Kuldeep Paswan(P.W.22) and he, accordingly, investigated the case by recording the statements of witnesses. He held inquest upon the dead body of the Dy.S.P. Satyapal Singh and inspected the place of occurrence. 8. It was double-storey house which was belonging to Jafar Alam, who has been acquitted and there was another house with roof of tiles. A river was flowing east of it from north to south. On the eastern side of the same river started the territory of Khagaria district and on the western embankment of the river, was boundary of Saharsa district. The Nonha Chamrahi Tola was situated north -east of the place-of-occurrence-house and there were a number of Jhoparies as also some partly built Indira Aawas. To the north-west of the house was village Harahi and towards the north-east of the same was village Kajari. The main Nonha village was situated in the south eastern direction of the house. The villages around the double storey building were at a distance of 2-3 7 kilometers from it and the lands surrounding the place of occurrence house was vacant agricultural fields. There was a state boring situated north west of the house. There were marks created by gun shots on its wall as also on the wall of the house with roof of tiles. The parapet of the house which was about three feet in height had vacant spaces into it in 6”x6” dimension. 9. There was a big room on the western part of the house in which grains were found stored. A door was fixed in the eastern wall of the room through which one could go towards the east or could mount the stairs for reaching at the top of the house. There was a verandah on the southern side of the house. Seeds and fertilizers were found kept there. There was another room on the eastern side of the verandah to which was fixed another door on its northern side which connected this room with another room situated on the north. There was a lavatory just east of the stair case and it was found fitted with a door. Blood was found on the eastern door of the house. 10. Another house with roof of tiles was found situated at a distance of 40-50 yards from the main double storey-building. There was a small room on the northern side of the house in which there was a hearth. There was another room on the southern side of 8 this house in which fodder was found stored. On the eastern side of the house was a verandah in which pegs were found fixed for teethering animals. There was open space in the said house with tiled roofs and it was open both on east and west. Blood was found there in the eastern sahan of the house where Naad and pegs were found fixed. To the south of this house was situated a Peepal tree. To the east of the house was found a well in dilapidated condition and just east of the well was fixed a telephone pole. The fields all around the house belonged to co-accused Jafar Alam. 11. The I.O. prepared sketch maps of the place of occurrence which have been marked Ext-8 and 8/1. The blood stained earth was seized and the seizure list was prepared by P.W.22 which has been marked Ext-9. A Kawasaki motorcycle bearing registration no.BR-07A-4717 was also found and that was also seized by preparing seizure memo Ext-9 and 9/1. As may appear from paragraph-41 of the evidence of P.W.22 the seized motorcycle was belonging to one Makeshwar Pd. Srivastava, resident of Laxmisagar, Darbhanga who had been relieved of the same by some criminals for which a case had been registered by the Darbhanga police. P.W.22 recorded the statements of witnesses, obtained the postmortem examination report of the deceased Dy.S.P. and also noted down the 9 criminal history of the present appellant Md. Zahid @ Commando @ Md. Zahir Anjum as appears from paragraph- 30 of the evidence and, thereafter, submitted the chargesheet. 12. The defence of the accused persons as suggested to different witnesses including P.w.22 as may appear from paragraph-38 was that there was dispute for fishing rights between two groups of persons for fishing in the river which was situated just by the side of the double storey building and there was firing and counter-firing between them in which the Dy.S.P. was injured and killed. Thus, the murder of Dy.S.P. Satyapal Singh is not disputed. What is disputed is the participation of the appellant and other accused persons. 13. A total number of 27 P.Ws were examined by the prosecution in support of the charges out of whom P.Ws.1, 2, 3, 7, 8, 9, 10, 11, 16, and 25 were declared hostile. P.W.26 S.I. Suresh Prasad Ram had produced a report which was in the pen of one Ganesh Prasad, Crime Reader of the Superintendent of Police, Saharsa which contained the criminal history of the present appellant Md. Zahid @ Commando @ Md. Zahir Anjum. The report was marked Ext-13. P.W.27 was the officer-in-charge of Salakhua police station in the year 2000 and had produced the material exhibits of 10 the case which have been marked Exts-M/9 and M/10. He had also proved paragraph-24 of the case diary Ext-15 which contained the statement of the deceased constable Md. Azam. As regards P.Ws.4, 6, 23 and 24, though they supported the prosecution case as regards the story which was contained in the written report Ext-2, they did not give evidence of identifying any of the accused persons as one of the participants in the offence. As such the four witnesses, i.e., P.W.4, 6, 23 and 24 were also declared hostile. The evidence of identification in one mode or the other, was given by P.W.5 Hawaldar Ganesh Rajak who was also injured in the same occurrence. P.W.12, constable Ugra Mohan Thakur, P.W.13 S.I. Shailesh Mishra, informant of the case, P.W.14 constable Raj Kishore Paswan, P.W.15 constable Deep Narain Yadav, P.W.19 Anil Kishore Yadav, Additional S.P., Saharsa, P.W.20 S.I.Sheo Kumar Singh, P.W.21 S.I.Ram Pravesh Singh (who was also injured in the incident) and finally P.W.22 S.I. Kuldeep Paswan who besides being the investigating officer of the case was also a witness to it, had given evidence on identification of the appellant. The two doctors who held postmortem examination and had examined the two injured witnesses, namely, P.W.5 Hawaldar Ganesh Rajak and P.W.21 S.I. Ram Pravesh Singh, were also examined as P.Ws.17 and 18. 11 14. The learned trial Judge considering the evidence of witnesses acquitted 23 accused persons put on trial while convicted the present appellant Md. Zahid @ Commando @ Md. Zahir Anjum. 15. Sri Shakeel Ahmad Khan, the learned senior counsel appearing for the appellant in support of the appeal as also to resist the reference made by the learned trial Judge under Section 366 of the Cr.P.C., has submitted that the first information report does not say as to who had fired the shot which hit the deceased Dy.S.P. in his chest. It was uncertain from the evidence also, and, as such, the sentence of death passed upon the appellant was not fit to be confirmed. It was next contended that the informant had not identified any of the accused persons. The identification was made by three persons who were the members of the raiding party, i.e., P.W.23 Chaukidar Saryug Tanti, P.W.24 Chaukidar Yogendra Sharma and constable Md. Azam, not examined on account of his death who as per written report had identified five accused persons out of whom only the appellant was convicted. It was contended that P.Ws.23 and 24 the two Chaukidars did not support the prosecution story that they had seen and identified the present appellant, Md. Zahid @ Commando @ Md. Zahir Anjum and as such the very conviction of the appellant appears 12 not sustainable. It was contended that the FIR was not lodged quickly or in a haste; the same was rather lodged on 8.12.1998 at 11.30 P.M., i.e., after about 12 hours of the occurrence and it was a very detailed narration containing all details right from the forming of the raiding party till the ultimate happening by way of the death of the Dy.S.P. on account of being hit by a bullet and as to who identified whom, but the evidence on record indicated that it was contrary to the detailed narration in the FIR as regards the identity of the appellant. Specific mode of identification was introduced in evidence though some of the witnesses have stated that they had never learnt at the place of occurrence that any one had identified any of the criminals. It was contended that the written report was a fabricated and ante- dated document created with connivance of the superior police officers and the evidence of some of the witnesses, like, P.W.5 Hawaldar Ganesh Rajak on identifying the present appellant appears missing from Ext-2, the written report, creating that evidence not acceptable. Same was the comment against the evidence of other identifying witnesses, like, P.Ws.12, 14, 15, 19, 20, 21 and 22. It was contended that the identification of the appellant as one of the persons who had fired at the Dy.S.P. or the police party 13 appears not established and, as such, the conviction of the appellant was not fit to be sustained. It was contended that the FIR was drawn up on 8.12.1998 at 11.30 P.M. but the copy of the same was received by the Magistrate on 10.12.1998 which gave rise to an inference that the FIR was not recorded on 8.12.1998. It further gave rise to an inference that it might have been recorded some times on 8.12.1998 or even after the 9th of December, 1998 after due deliberation and consultation which makes the very prosecution case suspect. This alone makes the prosecution case suspect entitling the present appellant to an order of acquittal. Sri Khan placed before us two decisions of the Supreme Court, one reported in 1994 BBCJ 116(SC) Arjun Marik Vrs. State of Bihar and (2000)12 SCC 792 Badam Singh Vrs. State of Madhya Pradesh to buttress his submission on belated dispatch of FIR to the Magistrate. It was contended further that when the evidence on identification was suspect it was necessary that a test identification parade ought to have been organized for establishing the evidence of identification and non-holding of the test identification parade was fatal to the prosecution case. In support of the contention, Sri Khan placed before us another decision of the Supreme Court reported in AIR 2002 SC 3325 Dana Yadav alias Dahu 14 Vrs. State of Bihar. 16. As against the above, Sri Ashwini Kumar Sinha, learned A.P.P. for the State submitted that it might be doubtful that Md. Zahid had fired and killed the Dy.S.P., but it could be said definitely that he was a member of the group responsible for killing him. It was contended that it was not a case of fleeting glimpse as was pointed out by the Supreme Court in 2007(1)SCC(Criminal)582 Amit Singh Bhikam Singh Thakur Vrs. State of Maharashtra, rather the evidence of some of the witnesses, like, P.Ws.15 and 20 goes to indicate that there was definite evidence of these witnesses identifying the present appellant as one of the persons who was firing shots at the police party and as such there was no doubt about the participation of the appellant in the occurrence and he was rightly found guilty of committing the offence. It was contended fairly by the learned A.P.P. that the sentence which was passed upon the appellant might not be appropriate in the facts of the case as there is lack of evidence that it was this appellant who had fired at the Dy.S.P. and killed him. 17. Thus, what appears from the above contentions of the two sides is that the decision of the present Death Reference and the appeal hinges upon the acceptability or non-acceptability of the evidence 15 of the witnesses, as regards the present appellant being identified as one of the participants who had fired at the police party, may be he had not killed the deceased. 18. It is true that most of the witnesses, like, P.Ws.1, 2, 3, 7, 8, 9, 10, 11, 16 and 25 did not support the prosecution case. Some of them, like, P.W.9, a Dafadar, P.W.10 a Chaukidar did not even support the fact that they were present at the place of occurrence or some where near it on account of being the part of the police party and as such had seen the occurrence. The worst was that the Dafadar and the Chaukidar, i.e., P.Ws.9 and 10 respectively, were very much cited as persons in written repot who had done some thing after the Dy.S.P. had been killed or had pointed out the names of the accused, but both of them have stated that none of them was present at the place of occurrence. They have further gone in denying their presence at the place of occurrence by stating that in fact none of them was present even at his respective house. However, some of other such witnesses, like, P.Ws.4 and 6 have supported the prosecution story as regards the formation of the police party by the Dy.S.P. which consisted of quite some good number of officers and constables and going to the place of occurrence. They have further deposed 16 that they were told by some persons who were found sleeping in the same house on its ground floor that the present appellant with some others were inside it and when the Dy.S.P. wanted to go up stairs and attempted to get the doors opened the criminals fired from the top floor as a result of which the police party retreated by shutting the doosr. Witnesses, like, P.Ws.12 and 13 constable Ugra Mohan Thakur and S.I. Shailesh Mishra(the informant)along with P.W.14 constable Raj Kishore Paswan have stated that the Dy.S.P., asked the criminals to surrender when they had started firing at the police party, telling them further that else they shall be retaliated and killed. But, that did not yield any result and the police party was fired indiscriminately at by the criminals. Other witnesses, like, P.Ws.5, 20, 21 and 22 along with P.Ws.4 and 6 have also supported the prosecution story in its totality. Thus, what I find is that the manner of occurrence is fully supported by the witnesses and that stands established. 19. There might be a stray suggestion here and the other there as appears given to P.W.22 in paragraph-38 that the Dy.S.P. was killed on account of being hit by a bullet which was fired in firing and cross-firing between two groups of persons fighting to fish out in the river situated east of the place 17 of occurrence, but that does not appear of any consequence even on the balance of probability except that it is a grand invention of the fertile mind of an advocate. The Dy.S.P. was indeed killed when he had gone with a police force at the place of occurrence which was the double storey house of acquitted accused Md. Jafar Alam for capturing the criminals. The appellant was a criminal bearing a huge antecedent, appears duly indicated by the evidence of P.W.22 in paragraph-30 in which the detail of cases against the appellant has been stated. Those were the cases in which the appellant had been chargesheeted. So far as the full detail of the cases in which the appellant was wanted is concerned, it was contained in Ext-13 and the total number of cases in which the present appellant was accused was 20 which related to the districts of Saharsa and Khagaria. One of the 20 cases was from the State of Rajasthan and it is indicated that he was being tried by the courts of law in five cases of different nature including one of escaping from lawful custody. The Dy.S.P. was within the legal obligation and fully within the requirements of his duties as a policeman to arrest such an infamous accused. 20. However, the proof of the facts regarding the occurrence could not be sufficient to dispose of 18 the appeal unless the contentions of the counsel on the identification evidence and some other parts of the prosecution case are noticed and considered. The main challenge set up by the present appellant was in respect of the evidence of his identification which was coming from witnesses. As pointed out earlier the evidence of identifying the appellant was coming from P.Ws.5, 12, 13, 14, 15, 19, 20, 21 and 22. As regards the evidence of the above witnesses it was contended that it could not be said that they had the opportunity of regularly seeing the appellant and being well acquainted with him so as to picking up his features for identifying him as one of the participants in the occurrence. It was contended that most of the witnesses who had claimed to have identified the appellant appears not to have stated that fact of identifying the appellant before the police and it appears that it was a subsequent improvement introduced by them in their evidence during trial. It was, as such, incumbent upon the prosecution to organize a test identification parade by putting the appellant