Anand Mohan Vs State of Bihar

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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 1804-1805 OF 2009

Anand Mohan …… Appellant

Versus

State of Bihar …… Respondent

WITH

CRIMINAL APPEAL NO. 1536 OF 2009, CRIMINAL APPEAL NO. 1537 OF 2009, CRIMINAL APPEAL NO. 1538 OF 2009, CRIMINAL APPEAL NO. 1539 OF 2009, CRIMINAL APPEAL NO. 1540 OF 2009, CRIMINAL APPEAL NO. 1541 OF 2009, CRIMINAL APPEAL NO. 1542 OF 2009

AND CRIMINAL APPEAL NO. 1806 OF 2009

J U D G M E N T

A. K. PATNAIK, J.

These are all appeals by way of special leave under

Article 136 of the Constitution against the common

judgment of the Patna High Court in Death Reference

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No.12/2007 and Criminal Appeals (DB) Nos. 1282, 1308,

1318, 1327, 1345, 1354 of 2007.

FACTS

2. The facts are that a typed report was lodged by Mohan

Rajak, Deputy Superintendent of Police (East), Muzaffarpur

(for short ‘the informant’) on 05.12.1994 at 22.10 hours

(10.10 p.m.) at PS Sadar, District Muzaffarpur (East), which

was treated as FIR. The prosecution case in the FIR briefly

was as follows: On the night of 04.12.1994, certain

unknown criminals had murdered Shri Kaushlendra Kumar

Shukla @ Chhotan Shukla and his associates at NH-28 and

the post mortem on Chhotan Shukla and the other

deceased persons was done on 05.12.1994 at the SKM

College Hospital. The supporters of Chhotan Shukla

belonging to the Bihar Peoples Party gathered in large

numbers at the hospital. Considering the possibility of

breakdown of law and order, the officers of the civil and

police administration remained present with armed force

and lathi force at the hospital. After the post mortem, the

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dead bodies were taken in a procession to the house of

Chhotan Shukla. The procession was led by Arun Kumar

Singh, Ramesh Thakur, Shashi Shekhar Thakur, Ram Babu

Singh, Harendra Kumar, Vijay Kumar Shukla @ Munna

Shukla and others and was escorted by the officers of the

civil and police administration. When the procession

reached the house of Chhotan Shukla, Anand Mohan, MLA,

and Lovely Anand, M.P., and others who were present

there, offered flowers to the dead body of Chhotan Shukla.

At about 3.30 p.m., the dead body of Chottan Shukla was

taken in a procession to his ancestral house in village

Jalalpur under Lalganj Thana in Vaishali district where about

5000 people gathered. Thereafter, the procession was led

by Anand Mohan, Lovely Anand, Professor Arun Kumar

Singh, Akhlak Ahmad, Harender Kumar, Rameshwar Wiplavi

and others and they were all in different vehicles. Anand

Mohan and Lovely Anand were sitting in their Contessa car.

An Ambassador car and a white coloured Gypsy were

moving in front of the procession. When the procession

reached the Bhagwanpur Chowk, the dead body of Chottan

Shukla was kept for a while and Anand Mohan, Lovely

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Anand and Professor Arun Kumar Singh gave speeches

instigating the crowd to take revenge of the murder of

Chhotan Shukla and others by murder and to teach the

administration a lesson if it created any hurdle. After

listening to the speeches, the people became aggressive.

The procession then moved from Bhagwanpur Chowk

towards Ram Dayal Nagar through the National Highway.

At about 4.15 p.m. when the procession came near Khabra

Village on the National Highway, the shouts “Maro Maro”

were heard from the midst of the procession. When the

informant along with other officers reached the place from

where the shouts were being heard, they found that on the

right hand side of the road the Ambassador car of the

District Magistrate, Gopalganj, G. Krishnaiyyah (coming

from the opposite direction) had turned turtle and the

District Magistrate was lying on the ground. They also saw

Anand Mohan, Lovely Anand, Professor Arun Kumar Singh

and some others were loudly provoking Bhutkun Shukla

(brother of Chhotan Shukla) to kill the District Magistrate

and take revenge. Thereafter, Bhutkun Shukla drew out a

revolver from his waist and fired three shots and then

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escaped into the crowd. The District Magistrate got

wounded. Looking at the gravity of the situation, the Sub-

Divisional Officer (East) ordered lathi charge and the police

and other officers present started charging lathi at the

crowd. The District Magistrate, Gopalganj, was sent in a

Gypsy to the SKM College Hospital for treatment.

Information was sent through wireless to the District

Headquarters of Vaishali District about the incident. In the

meantime, the assailants fled to Hajipur and the informant

and the Sub-Divisional Officer (East) chased the assailants

and reached Hajipur where they found 15 persons including

Anand Mohan and Lovely Anand caught by the Hajipur

police. All the 15 persons were arrested and their vehicles

were seized. After the informant came back to

Muzaffarpur, he got information that the District Magistrate,

Gopalganj, died at the SKM College Hospital.

3. Pursuant to the FIR, investigation was carried out by

the police and a charge-sheet was filed against 36 accused

persons. The learned Chief Judicial Magistrate,

Muzaffarpur, committed the case to the Sessions Court.

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The Sessions Court framed charge under Section 147 and

Sections 302/149 of the Indian Penal Code (for short ‘the

IPC’) against all the 36 accused persons (A-1 to A-36) for

being members of unlawful assembly with the common

object of committing the murder of the District Magistrate,

Gopalganj, G. Krishnaiyyah, (for short ‘the deceased’) as

well as the charge under Section 307/149 IPC for being a

member of the unlawful assembly with the common object

of attempting to commit murder of the photographer, the

bodyguard and the driver of the deceased. All the 36

accused persons were also charged for the offence under

Sections 302/109 for abetting the commission of the

murder of the deceased. Anand Mohan, Lovely Anand and

Professor Arun Kumar Singh (A-1, A-2 and A-3 respectively)

were further charged under Sections 302/114 IPC.

4. At the trial, the prosecution examined as many as 25

witnesses. PW-1 to PW-14 were police officials who claimed

to be with or behind the procession till the incident

occurred. PW-15, PW-16 and PW-23 were doctors who

proved the injury reports and the post mortem report. PW-

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17 and PW-21 are the driver and the bodyguard of the

deceased. PW-18 and PW-19 are the Director and

employee of the Forensic Science Laboratory, Patna, who

collected the blood-stained earth and broken pieces of

glass from the place of occurrence. PW-20 is the Executive

Magistrate who accompanied the procession. PW-22 is the

Assistant Sub-Inspector, Muzaffarpur District, who

investigated the case from 14.12.1994 to 16.12.1994. PW-

25 is the Additional S.P. Muzaffarpur who investigated the

case for a few hours and PW-24 is the second investigating

officer. The defence also examined twelve witnesses at the

trial.

5. The Additional Sessions Judge-I, Patna (for short ‘the

trial court’) found Anand Mohan, Lovely Anand, Professor

Arun Kumar Singh, Akhlak Ahamad, Vijay Kumar Shukla @

Munna Shukla, Harendra Kumar @ Harendra Pd. Sahi and

Shashi Shekhar Thakur (A-1, A-2, A-3, A-4, A-5, A-6 and A-7

respectively) guilty of the offences under Sections 147,

302/149, 307/149 and 427/149 of the IPC. The trial court

also held Anand Mohan, Lovely Anand, Professor Arun

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Kumar Singh and Akhlak Ahamad (A-1, A-2, A-3 and A-4

respectively) guilty of the offence of abetment to commit

murder under Sections 302/109 IPC. The trial court

acquitted the remaining accused persons A-8 to A-36 of all

the charges. After hearing on the question of sentence, the

trial court sentenced A-1, A-3 and A-4 to death for the

offence under Sections 302/149 and 302/109 of the IPC and

further sentenced them for one year R.I. for the offence

under Section 147 IPC, 5 years R.I. for the offence under

Section 307/147 IPC and one year R.I. for the offence under

Section 427/149 IPC and all the sentences were to run

concurrently. The trial court, however, sentenced A-2 to

life imprisonment for the offences under Sections 302/149

and 302/109 IPC and a fine of Rs.25,000/-, for one year R.I.

for the offence under Section 147 IPC, 5 years R.I. for the

offence under Section 307/149 IPC and one year R.I. for the

offence under Section 427/149 IPC and all the sentences

were to run concurrently and in default of payment of fine

she was to undergo simple imprisonment for a period of

two years. The trial court sentenced A-5, A-6 and A-7 for

life imprisonment for the offence under Section 302/149 IPC

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and to pay fine of Rs.25,000/- each, R.I. for five years for

the offence under Section 307/149 IPC, R.I. for one year for

the offence under Section 147 IPC and R.I. for one year for

the offence under Section 427/149 IPC and in default of

payment of fine to undergo simple imprisonment for two

years and all the sentences were to run concurrently.

6. The sentence of death on A-1, A-3 and A-4 were

referred to the High Court. Criminal appeals were also filed

by the convicts before the High Court. The High Court held

in the impugned common judgment that the prosecution

has not been able to establish a case of unlawful assembly

with common object of causing death of the deceased, or

any other person and thus there could be no conviction

under Sections 147 and 302/149 IPC. The High Court,

however, held on the basis of evidence of PW-1, PW-3, PW-

4, PW-9, PW-10 and PW-14 that A-1 had exhorted the lone

shooter to kill the deceased and hence he alone was guilty

of the offence of abetment of murder under Section

302/109 IPC. Accordingly, the High Court acquitted A-2 to

A-7 of all the charges and sustained the conviction of A-1

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but converted the sentence of death on A-1 to one of

rigorous imprisonment for life.

7. Aggrieved, A-1 has filed Criminal Appeal No.1804-

1805 of 2009 challenging the impugned judgment of the

High Court in so far as it sustained his conviction under

Section 302/109 IPC and imposed the punishment of

rigorous imprisonment for life. The State of Bihar has filed

Criminal Appeal Nos. 1536, 1537, 1538, 1539, 1540, 1541,

1542 and 1806 of 2009 challenging the impugned

judgment of the High Court insofar as it acquitted A-2 to A-

7 and insofar as it converted the death sentence on A-1 to

life imprisonment.

CONTENTIONS

8. Mr. Ram Jethmalani, learned senior counsel appearing

for A-1 submitted that the occurrence took place at 4.15

P.M. on 05.12.1994 and soon thereafter information was

sent through wireless to the District Headquarter, Vaishali

District about the incident and hence this information was

the real FIR and would disclose the first account of the

occurrence. He vehemently argued that this wireless

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message sent soon after the incident to the District

Headquarters of District Vaishali clearly stated that the

people who got mixed with the funeral procession of the

cremation of Chhotan Shukla have injured the deceased by

shooting him with a revolver and fled towards Hajipur by

different vehicles and this was the real FIR of the case but

the High Court has not even applied its mind to this real FIR

of the case.

9. He submitted that instead of this wireless message, a

typed report of the informant PW-14 has been treated as

the FIR. He argued that this typed report of PW-14 treated

as FIR is stated to have been lodged in the Sadar P.S. at

22:10 hrs. (10.10 P.M.) on 05.12.1994, but the evidence of

PW-11 would show that the informant PW-14 returned to

Muzaffarpur only after 2.00 A.M. on 06.12.1994. He

submitted that the High Court has also noticed in the

impugned judgment that the FIR mentioned the name of

Dy.S.P.-Dhiraj Kumar as the Investigating Officer who joined

after leave on duty on 06.12.2004 and took up

investigation at 8.15 A.M. from the first I.O. PW-25 He

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argued that all these facts clearly establish that not only

the FIR was ante-dated and ante-timed as 05.12.1994,

10.10 P.M. but also fabricated by PW-14 making false

allegations against A-1 and against the members of his

political party on the instructions of political superiors. He

contended that the High Court having held that there was

evidence to suspect that the FIR was ante-dated and ante-

timed should have also come to the conclusion that the

entire prosecution case as stated in the FIR by PW-14 was

false.

10. Mr. Jethmalani next submitted that the High Court has

rightly rejected the prosecution version that there was an

unlawful assembly with the object of murdering the

deceased and, therefore, the offences under Section 147

and 302/149 were not made out against any of the accused

persons. He contended that having come to this finding,

the High Court could not have held A-1 guilty of the offence

of abetting the murder under Section 302/109 IPC on the

ground that A-1 had incited Bhutkun Shukla to commit the

murder. He submitted that almost all the prosecution

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witnesses have stated that the deceased was shot by

Bhutkun Shukla when he was lying injured on the ground,

but the medical evidence establishes that he was shot

when he was in a standing position and thus the

prosecution witnesses have not actually seen the incident

nor heard any exhortation by A-1 to Bhutkun to kill the

deceased. He argued that the High Court having recorded

the finding that PW-11 was a false witness could not have

believed the other witnesses supporting the case that was

put forward by PW-11 in his evidence. He relied on the

station Diary entry Nos. 92, 94, 97 and 102 of the Police

Station of PW-11 to show that PW-11 was not even there in

the procession accompanying the dead body of Chhotan

Shukla but had gone for some investigation at the

University where he was stationed as a police officer.

11. He argued that the High Court failed to realize that A-1

along with his wife A-2 were in a white Contessa Car which

was almost at the front of the procession behind the police

car and the Tata Maxi carrying the dead bodies of Chhotan

Shukla and another, whereas the shouts of “maro maro”

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came from the rear of the procession and the witnesses

have all deposed that when they reached there they found

that the Car was over-turned and the deceased was lying

injured on the ground. He submitted that the deceased

was, therefore, dead before A-1 Anand Mohan could come

from his Contessa car to the place of occurrence and the

entire prosecution story that Bhutkun was incited by A-1 to

kill the deceased must necessarily be false.

12. Mr. Jethmalani submitted that the High Court failed to

appreciate the following circumstances:

(i) There is no evidence that A-1 knew the

deceased and, therefore, when the car of the

deceased came from the opposite direction

and crossed the Contessa Car in which A-1 was

sitting he did not know that it was the

deceased who was sitting in the car and there

was no reason for him to incite any one to kill

him;

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(ii) There is no evidence that A-1 got out of

his Contessa Car which was in front of the

procession and went towards the rear of the

procession to incite the killing of the deceased;

(iii) The provocative speech attributed to A-

1 were at Bhagwanpur Chowk and the police

officers are the only witnesses who have

deposed with regard to such provocative

speech by A-1 and their deposition that the

speech was provocative was the opinion of the

police officers and hence the High Court rightly

did not rely on the provocative speech of A-1

to convict him;

(iv) There were discrepancies in the evidence

of witnesses with regard to the exhortation by

the accused persons to Bhutkun to shoot and

thus the High Court should have rejected the

story of the prosecution that A-1 incited

Bhutkun to shoot the deceased;

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(v) The prosecution story that the procession

wanted to seek vengeance on the

administration is falsified by an independent

witness PW-12 (Tara Razak), the SDO who

accompanied the procession;

(vi) The High Court did not take into

consideration the evidence of PW-17 and 21,

the driver and the body guard of the deceased,

who did not support the prosecution case.

He submitted that had the High Court considered these

circumstances, it would have acquitted A-1 of all the

charges.

13. Mr. Ranjeet Kumar, learned senior counsel appearing

for the State of Bihar, submitted that the court must

appreciate the facts which have led to the occurrence in

this case. He submitted that Chhotan Shukla was a

candidate in the ensuing State Assembly elections on

behalf of the Bihar Peoples Party of which A-1 and A-2 were

leaders and on 04.12.1994 Chhotan Shukla and his four

associates were killed by some unknown persons in

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Muzaffarpur. He submitted that the gathering on

05.12.1994 at the SKM College Hospital where the bodies of

Chhotan Shukla and others were taken for post mortem

was of people belonging to the Bihar Peoples Party and the

procession which accompanied the dead bodies of Chhotan

Shukla and others was a show of political strength

displayed by A-1 and A-2 and his political associates. He

submitted that the provocative speeches delivered by A-1,

A-2 and others of the Bihar Peoples Party at the

Bhagwanpur Chowk aroused the emotions in the crowd of

almost 5000 people to take revenge by bloodshed and this

was the cause for the violence on the car of the deceased

which was coming from the opposite direction when the

procession reached Village Khabra. He submitted that the

violent crowd pulled out the occupants of the car, beat

them, overturned the car and finally Bhutkun Shukla shot

the deceased on the exhortation of A-1 to A-4 because the

deceased represented the State administration. He

submitted that the High Court has not appreciated these

background facts which led to the murder of the deceased

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and has acquitted A-2 to A-7 and has sustained only the

conviction of A-1 under Section 302/109 IPC.

14. In reply to the submissions of Mr. Jethmalani that the

wireless message sent to the District Headquarters,

Vaishali district soon after the incident on 5.12.1994 was

the real FIR, Mr. Ranjeet Kumar submitted that the wireless

message was very cryptic and could not be treated as an

FIR. He cited the decision of this Court in Binay Kumar

Singh and others v. State of Bihar [(1997) 1 SCC 283] in

which it has been held that the officer in-charge of the

police station is not obliged to accept as FIR any nebulous

information received from somebody which does not

disclose any authentic cognizable offence and it is open to

the officer in-charge to collect more information containing

details of the occurrence, if available, so that he can

consider whether a cognizable offence has been committed

warranting investigation.

15. On the delay in lodging the FIR, he referred to the

evidence of the informant, PW-14, to show that he had to

first send the deceased in the Gypsy car for treatment to

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the SKM College Hospital and he had to go to Hajipur to

arrest the accused persons and only after the accused

persons were taken to custody at Hajipur, he came back to

Muzaffarpur and prepared the typed report and lodged the

same as FIR in the Sadar P.S. at about 10.00 P.M. in the

night. He submitted that there was thus sufficient

explanation for the delay in lodging the FIR. He cited

Erram Santosh Reddy and others v. State of Andhra

Pradesh [(1991) 3 SCC 206] in which there was a delay of

six hours in lodging the FIR and the prosecution explained

that the police had to raid, effect recoveries and thereafter

submit a report in the concerned police station and on

these facts this Court held that no adverse inference could

be drawn because of the delay in lodging the FIR. He

submitted that in Amar Singh v. Balwinder Singh & Ors.

[(2003) 2 SCC 518] this Court has held that a delay of 26

hours in lodging the FIR from the time of the incident was

fully explained from the evidence on record and, therefore,

no adverse inference could be drawn against the

prosecution.

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16. Mr. Ranjeet Kumar submitted that the medical

evidence did not altogether make the ocular evidence

improbable. He argued that the ocular evidence of

different witnesses categorically states that Bhutkun Shukla

came out from the crowd and fired 3 shots and PW-16, who

conducted the post mortem, has stated that there were

three bullet injuries in the body of the deceased. He

submitted that no one can predict how a human body

would respond to the first bullet shot and therefore from

the nature of the bullet injuries in the body of the deceased

who was shot from a very close range, one cannot conclude

that the deceased could not have been shot after he fell on

the ground as contended by Mr. Jethmalani. He cited the

decision of this Court in Abdul Sayeed v. State of Madhya

Pradesh [(2010) 10 SCC 259] for the proposition that ocular

testimony has greater evidentiary value vis-à-vis medical

evidence. He submitted that in the present case the

medical evidence does not go so far as to rule out the truth

of the ocular evidence.

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17. He submitted that the oral evidence in this case is

consistent that A-1, A-2, A-3 and A-4 not only delivered

provocative speeches against the administration and

aroused the emotions of the crowd to resort to bloodshed

but also exhorted Bhutkun Shukla to shoot at the deceased

who represented the State administration. He referred to

the evidence of PWs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13

and 14 who have deposed about the provocative speeches

and exhortation of A-1 to A-4. He cited Masalti v. State of

U.P. [1964(8) SCR 133] wherein this Court has held that

where a criminal court has to deal with the evidence

pertaining to the commission of offence involving large

number of offenders and large number of victims, it is usual

to adopt a test that the conviction could be sustained only

if it is supported by two or three or more witnesses who

give a consistent account of the incident. He also referred

to the decisions of this Court in Binay Kumar Singh and

others v. State of Bihar (supra) and Abdul Sayeed v. State

of Madhya Pradesh (supra) in which the test laid down in

Masalti v. State of U.P. (supra) has been reiterated. He

submitted that unfortunately the High Court disbelieved the

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police witnesses and preferred to rely on the evidence of

only the civilian officials and acquitted A-2 to A-7 of all the

charges and sustained only the conviction of A-1 although

there was sufficient evidence against A-2 to A-7. He cited

Girja Prasad v. State of M.P. [(2007) SCC 625] wherein it

has been held by this Court that it is not the law that police

witness should not be relied upon and their evidence

cannot be accepted unless it is corroborated in material

particulars by other independent evidence.

18. He submitted that the High Court also acquitted A-1

to A-7 of the charges under Sections 147 and 302/149 IPC

on the ground that there was no unlawful assembly with

common object to commit the murder of the deceased or

any other person. He cited the decisions of this Court in

Sikandar Singh and others v. State of Bihar [(2010) 7 SCC

477] and Virendra Singh v. State of Madhya Pradesh

[(2010) 8 SCC 407] to contend that the A-1 to A-7 had

formed an unlawful assembly with the common object of

murdering the deceased and the other occupants of the car

at the spur of the moment.

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19. He relied on the decision of this Court in Rizan and

Another v. State of Chhattisgarh [(2003) 2 SCC 661] to

argue that normal discrepancies in evidence are likely to

occur due to normal errors of observations, normal errors of

memory due to lapse of time and due to mental disposition

such as shock and horror at the time of occurrence but

these discrepancies do not make the evidence of a witness

untrue and it is only the material discrepancy which affect

the credibility of a party’s case. He submitted that had the

High Court overlooked the minor and normal discrepancies

in the evidence of different witnesses who had given their

account of the incident as observed by them from different

places at the spot at the time of occurrence it would have

come to the conclusion that the witnesses gave a

consistent account of the involvement of A-1 to A-7 in

committing the offence under Sections 302/149 and

302/109 IPC. He submitted that High Court, therefore,

could not have set aside the findings of the trial court and

should have sustained also the death sentence on A-1, A-3

and A-4.

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20. Mr. Surinder Singh, learned senior counsel appearing

for the respondents in Criminal Appeals Nos. 1536, 1537,

1538, 1540, 1541 and 1542 of 2009, submitted in reply

that the fact that the FIR was not lodged soon after the

incident at 4.15 P.M. on 05.12.1994 indicates that the

informant and all other officers accompanying the

procession had no inkling whatsoever as to who committed

the murder of the deceased. He cited the decision of this

Court in Bhagaloo Lodh and Another v. State of Uttar

Pradesh [(2011) 13 SCC 206] in which it has been held that

prompt and early reporting of the occurrence by the

informant with all its vivid details gives an assurance

regarding the truth of its version and where there is a delay

in lodging the FIR without any explanation a presumption

can be raised that the allegations in the FIR were false and

that it contains a coloured version of the events that had

taken place. He also relied on Awadesh v. State of M.P.

[AIR 1988 SC 1158], in which this Court found that the FIR

was lodged belatedly because the names of the assailants

were not known and a lot of deliberation took place before

lodging the FIR and this Court held that the prosecution has

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failed to prove its case beyond reasonable doubt. He also

cited Ganesh Bhavan Patel v. State of Maharashtra [(1978)

4 SCC 371] in which this Court has held that the inordinate

delay in the registration of the FIR and further delay in

recording the statement of material witnesses caused a

cloud of suspicion on the credibility of the entire warp and

woof of the prosecution story. He submitted that in

Marudanal Augusti v. State of Kerala [(1980) 4 SCC 425]

this Court gave the benefit of doubt to the accused and

acquitted him after it found that the FIR was fabricated and

brought into existence long after the occurrence.

21. He submitted that the High Court was right in coming

to the conclusion that no case of unlawful assembly was

established against A-1 to A-7. He argued that the

speeches made at Bhagwanpur Chowk were not

provocative but rhetorical and in any case since an

Executive Magistrate was also present all through along

with the procession the Court could not come to the

conclusion that the accused persons constituted an

unlawful assembly either at Bhagwanpur Chowk where the

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speeches were delivered or at Khabra where the incident

took place.

22. He referred to the evidence of PW-12 & PW-13 who

were sub-divisional officers and to the evidence of PW-21

who was the bodyguard of the deceased to show that these

independent witnesses have not said anything about the

exhortation by A-1 to A-7 to Bhutkun to kill the deceased.

He also submitted that the evidence of the prosecution

witnesses are not consistent on the point as to who

exhorted Bhutkun to kill the deceased and, therefore, the

decision of this Court in Masalti v. State of U.P (supra) does

not apply to the facts of the present case. He submitted

that in Jainul Haque v. State of Bihar [AIR 1974 SC 45] this

Court has held that evidence of exhortation is in the very

nature of things a weak piece of evidence and there is

often quite a tendency to implicate some person in addition

to the actual assailant by attributing to that person an

exhortation to the assailant to assault the victim and unless

the evidence in this respect is clear, cogent and reliable, no

conviction for abetment can be recorded against the person

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alleged to have exhorted the actual assailant. He

submitted that considering the proposition of law laid down

in this decision, and considering the fact that there are

discrepancies with regard to who exhorted Bhutkun to

shoot at the deceased, the conviction of A1-A7 would not

be unsafe.

23. He submitted that if as has been deposed by the

prosecution witnesses the deceased was lying on the

ground when Bhutkun shot at him, then the first injury on

the deceased could not have at all been caused by shooting

and, therefore, the witnesses were lying. He cited

Awadesh v. State of M.P. (supra) in which this Court did

not believe the prosecution witnesses because of the

opinion of the doctor that the person who had caused the

injuries on the deceased was at a higher level than the

deceased and this opinion was wholly inconsistent with the

testimony of the eye-witnesses and the medical expert’s

opinion corroborated other circumstances which indicated

that the eye-witnesses had not seen the actual occurrence.

He also relied on Budh Singh v. State of U.P. [AIR 2006 SC

Page 28

2500] in which this Court has held that from the medical

evidence it appeared that the direction of the injury was

from upwards to downwards and this belies the statements

of prosecution witnesses that the accused and the

deceased were in a standing position and were quarrelling

with each other.

24. He finally submitted that the High Court lost sight of

the fact that although the procession started from

Muzaffarpur and the speeches were delivered at

Bhagwanpur Chowk the incident took place at Khabra

Village and the car could have been overturned and

deceased could have been shot not by any person coming

in the procession but by a person from amongst the crowd

of Khabra Village who had gathered to see the procession.

25. Mr. Nagendra Rai, learned senior counsel appearing

for the respondent in Criminal Appeal No.1539 of 2009 (A-4

Akhlak Ahmad), submitted that it has come in evidence

that the Chief Minister of Bihar was present at the SKM

College and Hospital, Muzaffarpur. He cited the decision of

this Court in Om Prakash v. State of Haryana [(2006) 2

Page 29

SCC 250], in which this Court considered the presence of

Dy. S.P. at the place of occurrence for about three hours

and also considered the fact that there was no explanation

for the long delay in lodging the FIR and gave the benefit of

doubt to the accused persons. He also relied on Ganesh

Bhavan Patel v. State of Maharashtra (supra) wherein this

Court took into consideration the delay in registration of the

FIR as a circumstance for acquitting the accused of the

charges.

26. He submitted that the High Court has rightly held that

there was no unlawful assembly with the object of

murdering the deceased or any other person. He

submitted that the accused persons could not have shared

the object of Bhutkun to kill the deceased and, therefore,

there was no “common object” which is a necessary

ingredient of an unlawful assembly and hence the offences

under Section 147 and 302/149 IPC have not been made

out against the accused persons.

27. He also referred to the evidence of PWs 12, 13 and 20

to show they have not supported the prosecution case that

Page 30

the killing of the deceased took place before them and they

have stated in their evidence that when they reached the

spot, the shooting incident had already taken place. He

submitted that even PW-1 has stated that no police

personnel had reached the spot where the shooting took

place. He argued that PW-21, the bodyguard of the

deceased who is the most material witness had not

supported the case of the prosecution that A-1, A-2, A-3

and A-4 had exhorted Bhutkun to shoot at the deceased.

He submitted that it is difficult to believe that the police

personnel would not have prevented the killing of the

deceased if the killing was about to take place in their

presence. He finally submitted that the photographer, who

accompanied the deceased, though a material witness, has

not been examined in Court and an adverse inference

should be drawn against the prosecution for withholding

the photographer from giving evidence in Court.

FINDINGS

28. The first question that we have to decide is whether

the wireless message sent soon after the incident on

Page 31

05.12.1994 is the real FIR as contended on behalf of the

defence or whether the typed report subsequently lodged

by PW-14 in the Muzaffarpur Sadar Police Station is the FIR

as contended on behalf of the prosecution. Sub-section (1)

of Section 154 Cr.P.c. which provides for the First

Information Report is quoted hereinbelow:

“(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.”

It will be clear from the language of sub-section (1) of

Section 154 Cr.P.C. that every information relating to the

commission of a cognizable offence whether given in

writing or reduced to writing shall be signed by the person

giving it. Hence, the person who gives the information and

who has to sign the information has to choose which

particular information relating to the commission of a

Page 32

cognizable offence is to be treated as an FIR. In the

present case, PW-14, the informant has chosen not to treat

the wireless message but the subsequent typed

information as the FIR and the police has also not treated

the wireless message but the subsequent typed

information as the FIR. Moreover, the wireless message

sent soon after the incident on 05.12.1994 stated only that

the people mixed with the crowd of funeral procession for

the cremation of Chottan Shukla have injured the deceased

by shooting him with revolver and have fled towards

Hajipur by different vehicles. This wireless message was

cryptic and did not sufficiently disclose the nature of the

offence committed much less the identity of the persons

who committed the offence. Unless and until more

information was collected on how exactly the deceased was

killed, it was not mandatory for either PW-14 to lodge the

same as FIR or for the Officer Incharge of a police station to

treat the same as an FIR. Such cryptic information has

been held by this Court not to be FIR in some cases. In

Sheikh Ishaque and Others v. State of Bihar [(1995) 3 SCC

392] Gulabi Paswan gave a cryptic information at the police

Page 33

station to the effect that there was a commotion at the

village as firing and brick batting was going on and this

Court held that this cryptic information did not even

disclose the commission of a cognizable offence nor did it

disclose who were the assailants and such a cryptic

statement of Gulabi Paswan cannot be treated to be an FIR

within the meaning of Section 154 Cr.P.C. Similarly, in

Binay Kumar Singh and others v . State of Bihar (supra)

information was furnished to the police in Ex.10/3 by

Rabindra Bhagat that the sons of late Ram Niranjan Sharma

along with large number of persons in his village have set

fire to the houses and piles of straws and have also

resorted to firing. This Court held that Ex.10/3 is evidently

a cryptic information and is hardly sufficient to discern the

commission of any cognizable offence therefrom. In our

considered opinion, therefore, the trial court and the High

Court have rightly treated the subsequent typed written

information lodged by PW-14 and not the wireless message

as the FIR.

Page 34

29. The second question that we are called upon to decide

is whether the typed report of PW-14 which has been

treated as the FIR was lodged at 10.10 p.m. on 05.12.1994

as claimed by prosecution or was actually lodged at the

Muzaffarpur Sadar Police Station in the morning of

16.12.1994 as contended by the defence. We have

perused the evidence of PW-14, the informant. He has

stated that after the deceased was injured by a person with

his revolver at about 4.15 p.m. on 05.12.1994, the mob

starting escaping from the main road to Lalganj and some

people ran towards Hajipur and he along with others

followed the mob and reached Hajipur at 6 O’ Clock and

went to the Circuit House and stayed there for one hour

and then left for Muzaffarpur at 7 O’ Clock. In the

impugned judgment, the High Court did not accept this

evidence of PW-14 that he left Hajipur for Muzaffarpur at

7.00 P.M. as it found that most of the other witnesses had

admitted that they left Hajipur at 9.00 P.M. and PW-11 had

admitted that he left Hajipur at 12.00 in the midnight so as

to reach Muzaffarpur at 2.00 A.M. in the night along with

others. Though PW-11 has stated in his evidence that all

Page 35

the people returned from Hajipur Circuit House at 7 O’

Clock, he has also stated in his evidence that he was with

the SDO till 12 in the midnight and he went to Garoul,

Hajipur, and after apprehending the accused he returned to

Muzaffarpur. PW-11 has further stated that he returned to

the Sadar Police Station at Muzaffarpur at 2 O’ Clock at

night and the DM, SP, SDO, DSP (PW-14) and other officers

also returned with him. Hence, the High Court has held

that PW-14 along with other officers including PW-11

reached Muzaffarpur at 2.00 pm in the night. After

reaching the Sadar Police Station at Muzaffarpur, PW-14

has taken some more time to lodge the lengthy typed

written FIR. PW-14 has stated that for lodging the FIR at

the Muzaffarpur Sadar Police Station he took help from all

the officers present and in fact took the statements of 4-5

officers. He has stated that he made a typed FIR and he

took half an hour to complete the statement and it took one

hour to lodge the FIR. On the basis of all these evidence

on record, the High Court did not accept the version of the

prosecution that the FIR was lodged with the Muzaffarpur

Sadar Police Station at 10.10 p.m. on 05.12.1994 and has

Page 36

instead held that the evidence creates a reasonable

suspicion about the FIR being ante dated and ante timed.

We do not find any error in this finding of the High Court.

30. We now come to the main contention on behalf of the

defence that the High Court should have totally discarded

the prosecution story once it held that the evidence creates

a reasonable suspicion about the FIR being ante-dated and

ante-timed. In none of the cases cited by the defence, we

find that this Court has discarded the entire prosecution

story only on the ground that the FIR was ante dated and

ante timed. In Ganesh Bhavan Patel v. State of

Maharashtra (supra) relied on by the defence this Court

considered the inordinate delay in recording the statements

of witnesses under Section 161 Cr.P.C. and other

circumstances along with the fact that the FIR was lodged

belatedly without proper explanation and then held that the

prosecution case was not reliable. Again, in Marudanal

Augusti v. State of Kerala (supra) cited by the defence,

this Court disbelieved the prosecution story not because of

unexplained delay in the dispatch of the FIR to the

Page 37

Magistrate only but also because the FIR which contained

graphic details of the occurrence with the minutest details

did not mention the names of the witnesses and there were

other infirmities to throw serious doubt on the prosecution

story. In Awadesh v. State of M.P. (supra) relied on by the

defence, besides finding that the delay in lodging the FIR

was suspicious, this Court also found that the empty

cartridges were recovered from the place of occurrence one

day after the incident and the medical evidence established

that the witnesses had not actually seen the incident and

considering all these circumstances this Court held that the

prosecution had not proved the case beyond reasonable

doubt. This Court has, on the other hand, held in State of

M.P. v. Mansingh and others [(2003) 10 SCC 414] that if the

date and time of the FIR is suspicious, the prosecution

version is not rendered vulnerable but the court is required

to make a careful analysis of the evidence in support of the

prosecution case. Thus, we will have to make a careful

analysis of the evidence in this case to find out how far the

prosecution case as alleged in the FIR is true.

Page 38

31. In the present case, the fact remains that soon after

the incident at about 4.15 P.M. on 05.12.1994 information

was sent from the place of the incident to the District

Headquarters of Vaishali district that the people mixed with

the funeral procession for the cremation of Chottan Shukla

have injured the deceased by a revolver and fled towards

Hajipur by different vehicles. At least this part of the

prosecution case which finds place in the subsequent typed

FIR lodged by PW-14 in the early hours of 06.12.1994

cannot be discarded to be false and the court will have to

decide on the basis of evidence as to who amongst the

people in the funeral procession for cremation of Chottan

Shukla are responsible for the injury caused to the

deceased.

32. In fact, the High Court also has not accepted the

entire version of the FIR lodged by PW-14 and has rejected

the case of the prosecution in the FIR that there was an

unlawful assembly and that A-1 to A-7 were part of that

unlawful assembly with the object of killing the deceased.

The High Court has held in the impugned judgment that the

Page 39

mob which surrounded the car of the deceased caused

damage to the car by throwing brickbats and caused

injuries to its occupants after pulling them out and had

turned into an unlawful assembly but from the evidence on

record and the circumstances it is not established that even

the members of such mob shared the common object of

killing the deceased. The High Court has further held that

some of the processionists who were in the vehicles close

to the place of occurrence could have come out from their

vehicles to find out the reasons for the commotion but

when nobody was even aware that the deceased would be

passing through the place such persons cannot be held to

be members of unlawful assembly actuated by the common

object of killing the deceased. The High Court has also held

that there were no allegations that the processionists were

carrying any arms and there was insufficient evidence

about the exact behaviour of the assembly at the scene of

the occurrence. The High Court has further held that the

driver and the bodyguard of the deceased have stated in

their evidence that the car could not pass on the left side of

the road because of presence of a mob on the flank of the

Page 40

road while the funeral procession was moving and this

shows that the attack on the car of the deceased and its

occupants was a sudden act of the mob which had

gathered to watch the funeral procession near Khabra

Village. The High Court has found that the driver and the

bodyguard of the deceased have not said anything in their

evidence on what led to the anger of the mob and instead

they had been anxious to show that they had committed no

mistake due to which the deceased was killed. The High

Court has thus held that the processionists, who were going

with the dead body on motor vehicle, did not have any

common object and therefore did not constitute an

unlawful assembly and hence A-1 to A-7 could not be held

liable for the offence under Section 302/149 IPC on the

ground that they were members of an unlawful assembly

which had the object of killing the deceased or any other

person. In our considered opinion, the High Court rightly

rejected the contention of the prosecution that A-1 to A-7

were liable for conviction under Section 302/149 IPC.

Page 41

33. The High Court after carefully scrutinizing the

evidence of the witnesses has also discarded the

prosecution story in the FIR lodged by PW-14 that A-2, A-3

and A-4 had exhorted Bhutkun Shukla to kill the deceased.

The High Court has held that none of the eye-witnesses of

Category-II comprising the civil officials, the driver and the

bodyguard, namely, PW-12, PW-13, PW-17 and PW-21 have

supported the allegations of exhortation by A-1 to A-7 and

out of the Category-I witnesses comprising Police

Personnel, PW-5 and PW-9 have not heard anyone

exhorting Bhutkun Shukla to kill the deceased. The High

Court has further held that out of the seventeen alleged

eye-witnesses, six witnesses do not speak of exhortation

and out of the remaining eleven prosecution witnesses, six

witnesses namely, PW-1, PW-3, PW-4, PW-9, PW-10 and PW-

14, have said that only A-1 exhorted Bhutkun Shukla to

shoot at the deceased. Accordingly, the High Court has

recorded the finding that only A-1 exhorted the lone

shooter to kill the deceased and was guilty of the offence of

abetment under Section 109 IPC and was liable for

punishment under Section 302/109 IPC for the murder of

Page 42

the deceased and A-2, A-3 and A-4 have to be acquitted of

the charges under Section 302/109 IPC.

34. We have gone through the evidence of the witnesses

and we find that this finding of the High Court that A-2, A-3

and A-4 cannot be held guilty of the offences under Section

302/109 IPC is based on a correct appreciation of evidence

of the prosecution witnesses. Out of fourteen witnesses

who accompanied the procession, only four witnesses,

namely, PW-6, PW-7, PW-8 and PW-11 have said that A-2

along with A-1 exhorted Bhutkun Shukla to shoot at the

deceased, whereas the remaining eight do not say that A-2

also exhorted Bhutkun Shukla to shoot at the deceased.

Similarly, out of the fourteen witnesses who accompanied

the procession, only PW-7 and PW-8 have spoken of

exhortation by A-3 to Bhutkun Shukla to shoot at the

deceased and the remaining eleven witnesses have not

said that A-3 also exhorted Bhutkun Shukla to shoot at the

deceased. Again out of the fourteen witnesses examined

by the prosecution, only PW-7 and PW-11 have said that A-

4 also exhorted Bhutkun Shukla to shoot at the deceased,

Page 43

but the remaining twelve witnesses have not said that A-4

also exhorted Bhutkun Shukla to shoot at the District

Magistrate. This Court has held in Jainul Haque v. State of

Bihar (supra) that evidence of exhortation is in the very

nature of things a weak piece of evidence and there is

often quite a tendency to implicate some person in addition

to the actual assailant by attributing to that person an

exhortation to the assailant to assault the victim and unless

the evidence in this respect is clear, cogent and reliable, no

conviction for abetment can be recorded against the person

alleged to have exhorted the actual assailant. Since the

majority out of the fourteen prosecution witnesses

comprising both civilian and police personnel

accompanying the procession do not support the

prosecution version that A-2, A-3 and A-4 also exhorted

Bhutkun Shukla to shoot at the deceased, it will not be safe

to convict A-2, A-3 and A-4 for the offence of abetment of

the murder of the deceased. In our view, therefore, the

High Court was right in acquitting A-2, A-3 and A-4 of the

charge under Section 302/109 IPC.

Page 44

35. In Masalti vs. State of U.P. (supra), this Court has held

that where a criminal court has to deal with the evidence

pertaining to the commission of offence involving large

number of offenders and large number of victims, it is usual

to adopt a test that the conviction could be sustained only

if it is supported by two or three or more witnesses who

give a consistent account of the incident. In this case, ten

out of the fourteen witnesses who were accompanying the

procession and were near the place of occurrence have

given a consistent version that A-1 exhorted Bhutkun

Shukla to shoot at the deceased. PW-1, PW-3, PW-4, PW-6,

PW-7, PW-8, PW-9, PW-10, PW-11 and PW-14, have

consistently deposed that A-1 exhorted Bhutkun Shukla to

shoot at the deceased. The remaining four witnesses may

be at the place of occurrence but for some reason or the

other may not have heard the exhortation by A-1 to

Bhutkan to shoot at the deceased. Hence, just because

four of the fourteen witnesses have not deposed regarding

the fact of exhortation by A-1, we cannot hold that the ten

witnesses have falsely deposed that A-1 had exhorted

Bhutkun to shoot at the deceased.

Page 45

36. We have also considered the submission of the

defence that these witnesses have deposed that the

deceased was shot by Bhutkun Shukla when he was lying

injured on the ground but the medical evidence establishes

that the bullets were fired when the deceased was in the

standing position and on this ground the evidence of these

ten witnesses who have deposed with regard to exhortation

by A-1 to Bhutkun Shukla to shoot at the deceased should

be discarded. We find that PW-16, Dr. Momtaj Ahmad who

carried out the post mortem on the dead body of the

deceased on 05.12.1994 at 4.40 P.M. has described in his

evidence the following three ante mortem injuries on the

body of the deceased:

“(1)(a) Due oval wound 1/3” in diameter with inverted margin and burning of the area on lateral side of the left eye brow.

(b) lacerated injury internal cavity deep with inverted margin was found on central part of forehead just above eye brow 3” x 1.2” into internal cavity from which fractured piece of frontal bone and brain material was prodding out.

On dissection the two wound were found interconnected.

Page 46

(ii) One oval wound ¼” in diameter with inverted margin was found at left cheek.

On dissection maxilla and mandible were found fractured and tongue and inner part of lower lip was found lacerated. The projectile after entering the left cheek and damaging above organs have passed away from oval cavity.

(iii) One oval wound with interverted margin and singling and burning of the margin ¼” in diameter was found on right parietal region of head;

(b) One oval wound 1.3” x ½’’ into internal cavity deep with everted margin was found on left parietal region of head.

On dissection two wounds were found interconnected with facture of skull bone into so many pieces and laceration of brain tissue.”

PW-16 has further stated in his evidence that out of these 3

wounds, 2 were on the left side and one on the right side of

the body. In his cross examination, PW-16 has stated:

“34. The projectile may travel in the body even in standing or sleeping position.

38. Injury No.II indicates that the patient may be able to move his face. From my postmortem report it appears that only after causing injury No.II the other injury No.III was caused. After sustaining injury No.III the one could not be moved and as

Page 47

such injury No.1 might not have been inflicted. On parity of logic vice versa is also correct. Thus injury No.(i) was caused before injury No.II (Volunteers that instead of definite was or were, if they should be read may and might)”

The evidence of PW-16 is clear that the projectile may

travel in the body even in standing or sleeping position.

PW-16 has stated that injury No.I may have been caused

and thereafter injury No.II may have been caused.

Moreover, injury No.II indicates that the deceased may

have been able to move his face. He has also stated that

from the postmortem report it appears that only after

causing injury No.II the other injury No.III may have been

caused. Thus, the argument of Mr. Ranjeet Kumar that

after the injury No.II on his left cheek, the deceased may

have turned his face and thereafter injury No.III on the left

parietal region of his head may have been caused cannot

be rejected. We cannot, therefore, hold that the medical

evidence is such as to entirely rule out the truth of the

evidence of the prosecution witnesses that the deceased

was shot when he was lying injured on the ground.

Page 48

37. We may now deal with the contention of the defence

that the High Court did not take into consideration the

evidence of PW-17 and PW-21, who were the driver and the

bodyguard of the deceased respectively, and who did not

support the prosecution case. We have gone through the

evidence of PW-17 (driver) who has stated that the people

participating in the procession surrounded the car of the

deceased and were shouting ‘maro maro’ and that they

pulled out the deceased and the bodyguard and then

began to assault them, but he escaped and hid behind the

vehicle and after a gap of five to six minutes when he

returned he found the procession was not there but the

police was present there with their vehicles and he saw the

deceased lying on the road in injured condition and the car

of the deceased was lying inverted and thereafter the

deceased was carried to the Hospital in the police vehicle

and he also went in the same vehicle to the Hospital and

later on he came to know that the deceased was dead. We

have also gone through the evidence of PW-21 (bodyguard)

who has deposed that the crowd was shouting ‘maro maro’

and they beat him, the driver as well as the deceased and

Page 49

turned the vehicle and they sustained injuries and after

some time the police came over there and the stampede

started and police sent the deceased and him to the

Hospital and he came to know that the deceased was dead.

Both PW-17 and PW-21, therefore, are silent with regard to

exhortation by A-1, A-2, A-3 and A-4 to Bhutkun to shoot at

the deceased. It appears that PW-17 and PW-21 were not

aware of any shooting incident at all and they were under

the impression that the deceased had been injured by the

assault of the mob after he was pulled out from the car.

PW-17 and PW-21, in our considered opinion, do not seem

to know what exactly happened after they were pulled out

from the car and beaten up by the mob. On the basis of

their evidence, the Court cannot discard the evidence of

ten other witnesses that the deceased was shot by Bhutkun

with the revolver on the exhortation of A-1 when the

medical evidence established that the cause of death of the

deceased was on account of the bullet injuries on the

deceased and not the assault by the mob. Moreover, PW-

17 and PW-21 may not have supported the prosecution

case but their evidence also does not belie the prosecution

Page 50

case that the deceased was shot by Bhutkun on the

exhortation by A-1.

38. We now come to the submission of Mr. Jethmalani that

as A-1 was sitting in a Contessa car which was in the front

of the procession and as the killing of the deceased took

place in the middle of the procession, the evidence of the

eye-witnesses should be discarded as not probable. The

prosecution has been able to adduce evidence through its

witnesses that at the time of shooting of the deceased, A-1

was at the spot and was exhorting Bhutkun Shukla to shoot

at the deceased. If A-1 wanted the Court to believe that at

the time of the incident he was in the Contessa car in the

front of the procession and not at the spot, he should have

taken this defence in his statement under Section 313

Cr.P.C. and also produced reliable evidence in support of

this defence. Section 103 of the Indian Evidence Act, 1872

provides that the burden of proof as to any particular fact

lies on that person who wishes the Court to believe in its

existence, unless it is provided by any law that the proof of

that fact shall lie on any particular person. The prosecution

Page 51

by leading evidence through its several witnesses has

established that A-1 was at the place of occurrence and

had exhorted Bhutkun Shukla to shoot at the deceased. If

A-1 wanted the Court to reject this prosecution version as

not probable, burden was on him to lead evidence that he

was not at the spot and did not exhort Bhutkun Shukla to

shoot at the deceased. Since he has not discharged this

burden, the High Court was right in holding that A-1 was

guilty of the offence under Section 302/109 IPC.

39. Regarding the sentence, the High Court has held that

though the deceased was a District Magistrate, he was

killed in another district as an occupant of a car by chance

on account of mob fury and exhortation by A-1 and firing by

Bhutkun Shukla and as A-1 was not the assailant himself,

death sentence would not be the appropriate sentence. We

agree with this view of the High Court and we are of the

view that this was not one of those rarest of rare cases

where the High Court should have confirmed the death

sentence on A-1. In our considered opinion, A-1 was liable

for rigorous imprisonment for life.

Page 52

40. In the result, we do not find any merit in either the

appeal of A-1 or the appeals of the State and we

accordingly dismiss all the criminal appeals.

.……………………….J. (A. K. Patnaik)

………………………..J. New Delhi, (Swatanter Kumar) July 10, 2012.