Case: State Of M.P. Through C.B.I Vs. Paltan Mallah

2. Deceased Shankar Guha Yogi was a popular, powerful trade union leader in the industrial region of Bhillai, Durg, which was part of the then State of Madhya Pradesh. Deceased Shankar Guha Niyogi had been working for the welfare of the labour demanding living wages, bonus, reinstatement of retrenched workers and he organised the workers of the various industrial units at Bhillai and Durg. The labourers had an organisation by name CHATTISGARH MUKTI MORCHA (hereinafter being referred to as CMM) and deceased Niyogi became a leader of this organisation. He was leading the labourers working at Rajaram Mines area which was a main source of raw material iron ore for the Bhillai Steel Plant at Durg. In the year 1989, there was an agitation by the workers of industrial unit by name ACC, which is a leading cement manufacturer. A settlement was reached at the instance of deceased Niyogi. The workers in other industrial establishments sought the help of deceased Niyogi to solve their problems. In the year 1990, he came to Bhillai and started occupying quarter no. MIG 1/55of HUDCO. He stayed there with his servant Bahal Ram. The other members of his family continued to stay near Rajhara. Deceased Niyogi set up an offence for CMM at MIG-2/273 HUDCO. In the year 1990, there was widespread labour movement against the management of various industrial units such as Simplex, Kedia, B.E.C., B.K. etc. According to the prosecution, the management of these industrial units started opposing the labour movement and there was even physical attack on some of the leaders of CMM. One Uma Shankar Rai, a leader of CMM was fatally assaulted by the agents of the industrialists. Deceased Niyogi apprehended serious threat to his life from the industrialists, especially from Simplex and Kedia Group of Industries. He made notes in his diary regarding the apprehension of danger from the management of these industrial units. On 27.9.1991, he had gone to Raipur and there he met one Rajendra Sail, Secretary General of PUCL and reporter N.K. Singh of India Today. He expressed an apprehension of danger to his life from Kedia and also from A-5 Moolchand Shah and A-1 Chandrakant Shah of Simplex Group. On 27.9.1991 at about midnight, he left Raipur for Bhillai and reached his quarter no. MIG-1/55 of HUDCO and went to bed. His servant Bahal Ram was occupying the neighbouring room. In the night, Bahal Ram heard and noise like bursting of crackers and he rushed to the room of Niyogi and found Niyogi writing in pain on is bed. The window was found open. Bahal Ram called for help of the neighbour Sripad Mategaonkar. Few workers from the CMM came to the place and it was found that Niyogi had been shot. He was immediately taken to to the Sector 9 Hospital of Bhillai. Before reaching the hospital, Niyogi succumbed to the gun shot injuries. Post-mortem examination was conducted by a team of doctors and they opined that death was due to bullet injuries3. Preliminary investigation was carried out by PW-182 Deputy Superintendent of Police Shri M.G. Agarwal. There was agitation by the workers that investigation shall be conducted by the Central Bureau of Investigation and the Government of Madhya Pradesh requested the Union of India seeking help of the Central Bureau of Investigation. As part of police investigation, PW-182 visited the scene of occurrence and got prepared map of the site and he took steps to see that viscera of the victim was sent for laboratory tests. He took into custody the pellets recovered from the body of Niyogi. He took statements from Bahal Ram, the servant and also from the widow and daughter of deceased. He got prepared photograph Exh. P-180 to P-196. He got report from Serum Science and Chemical Analysis which are marked as Exh. P-430 to P-432. He recorded statements of various other witnesses. Accused A-3 Avdhesh Rai was taken into custody on 13.10.1991. On 1.11.1991, he seized diary of deceased Niyogi and on 9.11.1991 he handed over the investigation to CBI officials4. PW-187 R.S. Dhankad took over the investigation along with PW 192 R.S. Prasad. PW-187 held search of Oswal Industry. He recorded the statements of Zakkiruddin on 21.11.1991. This witness identified the photographs of A-2 Gyan Prakash Mishra and A-3 Abhay Kumar Singh. PW-192 conducted further investigation of the case along with other officers. On 10.11.1991, he seized the window curtains from the house of Niyogi. On 15.11.1991, he conducted searches of the business premises of Jain and Shah and Company, 108 A. Khan Goga Complex and recovered articles under Exh. P-2975. After the arrest of accused Paltan Mallah on 25.8.1993, he got recovered 12 bore country made weapon, 13 live cartridges of 12 bore, a foreign made revolver, 6 live cartridges of .38 bore and a red colour Suzuki motorcycle. He sent Exh. P-403 and 404 to Central Forensic Laboratory (CBI), New Delhi. He conducted various other searches and recovered incriminating articles from the other accused. After investigation, final report was filed

Reasoning: 18. Another incriminating circumstance sought to be proved against the accused is the extra-judicial confession alleged to have been made by the ninth accused Paltan Mallah wherein he named A-1, A-2, A-5 and A-6. It is alleged that he made the confession to PW-105 Satyaprakash Nishad and A-9 is alleged to have disclosed to PW-105 that these accused persons had given him money and he murdered Shankar Guha Niyogi for the sake of money. Under Section 30 of the Evidence Act, the extra-judicial confession made by a co-accused could be admitted in evidence only as a corroborative piece of evidence. In the absence of any substantive evidence against these accused persons, the extra-judicial confession allegedly made by the ninth accused loses its significance and there cannot be any conviction based on such extra-judicial confession. The High Court, in our view, has given cogent and satisfying reasons for the acquittal of the accused A-1 to A-8. We do not find any reason to interfere with such a finding, especially when this being an appeal against acquittal and this Court would be slow in reversing such a finding unless the High Court had made a perverse or erroneous appreciation of the evidence resulting in grave miscarriage of justice. The evidence adduced by the prosecution can only throw some serious suspicion against these accused which cannot be used as a substitute for evidence21. The High Court in the impugned judgment stated that there is absolutely no evidence to show that Paltan Mallah could have been at Bhilai during the relevant period. In a murder that took place during night, there would not be any direct evidence to prove the fact, but various circumstances would show that the ninth-accused was a Bhilai during 1991. This accused was staying with PW-51 Reshami Bai. She deposed that accused Paltan Mallah had gone to Bombay and this evidence was erroneously taken into consideration by the High Court. It is common knowledge that the wife of an accused, leave aside the exceptional cases, would always give evidence only to support the husband31. In the instant case, we do not think that the court has violated any such provision merely because the witness was not from the same locality and his evidence cannot be rejected36. In the case of the respondent-accused Paltan Mallah, there is overwhelming evidence to prove his complicity in the crime. The recovery of the country-made pistol at his instance, which is proved to have been used for causing the death of Shankar Guha Nihogi; and the evidence of the ballistic expert coupled with two extra-judicial confessions made to PW-105 made PW-124 support the prosecution case fully. There is also prosecution evidence to the effect that the accused had got accessibility to the weapons and that he was staying at the place of occurrence and doing various jobs. It is also established that accused Paltan Mallah is involved in other offences relating to fire-arms. Though there is no direct and convincing evidence against other accused, the case against Paltan Mallah is proved beyond reasonable doubt. He was acquitted by the High Court on fanciful reasons. The evidence of extra-judicial confessions was rejected without any valid reasons. The report of the ballistic expert also was not appreciated in the correct perspective by the High Court. In our view, the Division Bench seriously erred in acquitting the respondent-accused Paltan Mallah37. In the result, we reverse the acquittal of the respondent-accused Paltan Mallah. The incident leading to these appeals had taken place as early as 1991. As there is a long of time, we do not think that the sentence of death imposed upon him by the Sessions Court is justified in the circumstances. We set aside the acquittal of respondent-accused Paltan Mallah and find him guilty of the offence punishable under Section 302 IPC and sentence him to undergo imprisonment for life.