[2017] l S.C.R. 779

SHEIKH JUMAN & ANR. ETC.

STATE OF BlHAR

(Criminal Appeal Nos. 484-487 of2008)

FEBRUARY 23, 2017

[PINAKI CHANDRA GROSE AND ASHOK BHUSHAN, JJ.]

Penal Code, 1860 - ss. 302, 302 read with s.149 - Explosive Substances Act, 1908 - ss. 3, 4 -Arms Act, 1959s. 27 -Appellants and others armed with bomb explosives and guns attacked informant's nephews - Hurling of bomb at the victim by SS and SA resulting in his death - Informant's other nephew also attacked by SG resulting in his death - Injuries inflicted to PW 1 also -

Thereafter, villagers assembled and appellants fled away firing shots in the air - Motive behind the incident was previous enmity - Trial court convicted acciised No.3(SS), 8 and 9(SG) for the offence punishable u/s. 302 and ss.3, 4 of the 1908 Act and sentenced accused Nos.3 and 9 to death sentence and accused No.8 to imprisonment for life - Accused No. 7 convicted for offence

punishable u/s. 3021149 and ss.3 & 4 of the 1908 Act and sentenced to rigorous imprisonment for 10 years - Rest of the accused convicted for the offences punishable u!s. 3021149 ands. 27 of the Arms Act and sentenced. to three years RI - High Court upheld conviction. of the appellants and the sentence of life term, however. commuted the death sentence of SS and SG to life imprisonment - Interference with - Held: Not called for - Witnesses are reliable and have stood embedded in their version and remained unshaken - They vividly deposed about the genesis of occurrence, participation and involvement of the accused in the crime and injuries inflicted on the deceased, and on each of them.

Dismissing the appeals, the Court

HELD: The witnesses, as the High Court has found and there is no reason to differ, are reliable and have stood em bedded in their version and remained unshaken. They 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. The nonexamination 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 inte'rested witnesses admittedly had enmity witJi 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. The conviction can even be based on the testimon(. oCa sole .eye-witness, if the same inspires confidence. More<Wer, prosecution case was proved by the testimony of the eye-witness since. corro.borated by the other witnesses of the occurrence.

Thus, thejudgment passed by the High Court does not warrant interference. [Paras 21, 23 and 24] [787-D-E; 788-C.-D]

Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211; Habeeb Mohammad v. State of Hyderabad [1954]

SCR 475; Shambhu Nath Singh v. State of Bihar AIR 1960 SC 725; Ram Dular Rai & Ors. v. State of Maharashtra [1961] SCR 2773; State of Bihar v.

Sanjeet Rai and Anr.. 2006 (4) PLJR 479; State of Bihar

V. Prajeet Kumar Singh 2006 (2) PLJR 656; K. M Ravi and Ors. v. Siate of Karnataka (2009) 16 SCC 337; Jodhan v. State of Madhya Pradesh (2015) 11 SCC 52 : [20151 4 SCR 789; Hem Raj and Ors. v. State of ' Haryana (2005) 10 SCC 614 : [2005] 2 SCR 1152; Bhim Rao and Ors. v. State of Maharashtra (2003) 3 sec 37 - referred to.

Case Law Reference

(2005) 6 sec 211 referred to Para9

[1954] SCR 475 referred to Para 11

AIR 1960 SC 725 referred to Para 12

L1'?61J ~~R 773 . referred .to Para 12

2006 (4) PLJR 479. referred to Para 12

~006 (2) PLlR 6S6 referred to Para 12

c2009) 16 sec 337 referred to Para 16

SHEIKH JUMAN & ANR. ETC. v. STATE'OF BIHAR 781

. [2015) 4 SCR 789

[2005] 2 SCR 1152

(2003) 3 sec 37

referred to

referred to

referred to

Para 17

Para 17

Para 18

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal

Nos. 484-487 of2008.

From the Judgment and Order dated 05. I 0.2007 of the High Court of Judicature at Patna in Criminal Appeal Nos. 122, 92, 98 and 123 of 2003.

Huzefa Ahmadi, Sr. Adv., C. George Thomas; Rohan Sha.rma, Ms. Qurratulain, Ms. Tanya Shree, Mohd. Shahid Hussain (For Ejaz C Maqbool) Advs. for the Appellants.

Gopal Singh, Ravi Bhushan, Milind Kumar, Advs. for the Respondent.

The Judgment of the Court was delivered by

PIN AKI CHANDRA GHOSE, J. I. These appeals are directed against the judgment and order dated 5"' October, 2007 passed by the High Court of Judicature at Patna in Criminal Appeal Nos.122, 92, 98 and 123 of2003, whereby the High Court while confirming the conviction of the appellants }:tnd the :sentence of life term, commuted the death sentence of.Sheikh Shamsul and Sheikh Gheyas, to imprisonment for life and djsmissed the appeals.

2. The brief facts necessary to dispose of these appeals are that on J9.0L199J at about 6:00 pm, one \skari (since deceasd), who happened to be the nephew of the informant (PWl4) 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 hithitn 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 ofe1<plosion 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.(l'W l) 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 !PC 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 I 0:00 pm, at Shahkund Police Station. The FIR was registered as C.R.

No.l-69 of 2009. The post-mortem of the deceased was performed by Dr. H.r. Ansari (PWl3). 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 13113.

5. Upon completion of investigation and submission of the charge sheet, Sessions Case No.309/22 of 1993/1999 was registered against tl1e accused. Thereafter, the Court of 1 "Additional District & Sessions Judge, Bhagalpur, framed charges against the accused persons for the offences punishable under Sections 302, 302 read with Section 149 of !PC, 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 !PC 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

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

[PINAKI CHANDRA GHOSE, J.]

sentenced to imprisonment for life. The accused No.7 Sheikh Chengwa was convicted for offence punishable under Section 302 read with Section 149 !PC and Sections 3 & 4 of the Explosive Substances Act and sentenced him to rigorous imprisonment for I 0 years. Rest of the accused were convicted for the offences punishable under Section 302 read with Section I 49 of !PC 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 I" 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 of2003 were preferred by the accused persons seeking acquittal.

8. The High Court vide its judgment and order dated S'h 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 exeroise of power under Article 136 of the Constitution oflndia 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.

I 0. ln 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 ito juJgment, viz. (a) interpretation of Section 172 of Code of Criminal Procedure, 1973; (b) veracity of the evidence adduced; ( c) relevance of overt ad 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

SUPREME COURT REPOI~. S

[2017] 1 S.C.R.

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 4 75, wherein it was held that when attention ofa 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 SIU1mbftu Nath Singh Vs. State of Billllr, AIR 1960 SC 725 and that of Ram Dular Rai & Ors. Vs. State of Malum1shtra, 1961 SCR (2) 773, though both the judgments discuss Section 149 of the !PC 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 ofBillllr Vs. Sanjeet Rai<ind Anr., 2006 (4) PLJR 479 and State of Bilwr Vs. Prajeet Kumar Singh, 2006 (2) PLJR 656, rejected the death reference holding that the case was not falling in the category of rarest ofrare 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, PWl4 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 !PC against the appellants two years prior to the date of the incident which was still pending.

14. Further, looking to the evidence give11by 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

SHEIKH JUMAN & ANR. ETC. v. STATE OF BIHAR 785

[PINAKI CHANDRA GHOSE, J.]

seizure of empty cartridge from Sheikh lshteyaque.

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 PW 14 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 ifit 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 PW 1 5 - Investigating Officer of the case and PW 12 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 tJf 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 offr:nces 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 p:aced on the judgment of this Court in Jodhan Vs. State of Madhya P, ., t/esh, (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 testimoliy 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. StateofHaryana, (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 runni.ng 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 Bltim 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

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

[PINAKI CHANDRA GHOSE, J.)

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, PWS, 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 PW?, PW9, PW14, PW! 5 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 nonexamination 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 Jodlum's

ase (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 appellants presence but also his active participation as a member of the unlawful

asse111bly. He might not have thrown the bo111b at the deceased, but thereby he does not cease to be a 111e111ber ()(the unlawful assembly as understood within the ambit of Section 149 !PC 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 com111on 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 eayh 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.

Nidhi Jain Appeals dismissed.