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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.484-487 of 2008 SHEIKH JUMAN & ANR. ETC. ... APPELLANT(S)

:VERSUS:

STATE OF BIHAR         ...      RESPONDENT(S)

JUDGMENT

Pinaki Chandra Ghose, J.

1. These  appeals  are  directed  against  the  judgment

and order dated 5th October,  2007 passed by the High

Court of Judicature at Patna in Criminal Appeal Nos.122,

92, 98 and 123 of 2003, whereby the High Court while

confirming  the  conviction  of  the  appellants  and  the

sentence of  life  term, commuted the death sentence of

Sheikh Shamsul  and Sheikh Gheyas,  to  imprisonment

for life and dismissed the appeals.  

1. The brief facts necessary to dispose of these appeals

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are  that  on 19.01.1991 at  about  6:00 pm,  one Askari

(since deceased), who happened to be the nephew of the

informant  (PW14)  was  at  his  grocery  shop  when

appellants armed with bomb explosives and guns came

near his shop. Appellant Sheikh Shamsul hurled a bomb

at the deceased and as a result of the explosion Askari

fell  down on the  Gaddi of the shop. In the meanwhile,

appellant  Sheikh Ashfaq also attacked him by a bomb

which  hit  him  on  the  chest  and  exploded  and

consequently Askari died at the Gaddi itself.  Informant’s

another nephew, namely, Mohd. Asad,  who was at the

Flour Mill just opposite the shop of Askari, hearing the

sound of explosion came running to the shop and he was

also attacked by a bomb by accused Sheikh Gheyas. Due

to  explosion  Mohd.  Asad  sustained  severe  injury,  fell

down near the shop and became unconscious. Md. Vasir

(PW1)  who  was  standing  there  was  also  injured.  On

hearing  the  sound  of  the  bomb  explosion,  villagers

assembled there and appellants fled away towards North,

firing shots in the air. Injured Mohd. Asad was taken to

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Bhagalpur hospital by the villagers in critical condition

but he succumbed to injuries at the hospital on the same

day.

2.  Motive  of  the  occurrence,  according  to  first

information report (‘FIR’), is that two years prior to the

occurrence, a case under Section 307 of IPC was filed by

the  informant  against  the  appellants  and  they  were

threatening  the  informant  to  withdraw  the  case,

otherwise they would eliminate the whole family.

3. The law was set into motion upon lodging of FIR by

PW14  (informant)  arising  out  of  Fardbeyan  being  Ext.

No.7 on the same day at 10:00 pm, at Shahkund Police

Station. The FIR was registered as C.R. No.I-69 of 2009.

The post-mortem of the deceased was performed by Dr.

H.I. Ansari (PW13). Looking to the post-mortem note of

deceased  Mohd.  Askari,  marked  Annexure  A-13,  there

were found explosive blast injuries on chest cavity deep,

face;  both  lungs  and  hear  were  lacerated.  As  per  the

Post-mortem Report of deceased Mohd. Asad, there were

found  blast  explosive  injury  on  abdominal  cavity;

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lacerated and bruise skin and lever. Both the deceased

died due to injuries caused by powerful bomb blast as

per above stated post-mortem reports marked Ext.13 and

13/13.

4. Upon completion of investigation and submission of

the  charge  sheet,  Sessions  Case  No.309/22  of

1993/1999  was  registered  against  the  accused.

Thereafter, the Court of 1st Additional District & Sessions

Judge, Bhagalpur, framed charges against the accused

persons for the offences punishable under Sections 302,

302 read with Section 149 of IPC,  Sections 3, 4 of the

Explosive Substances Act,  and Section 27 of the Arms

Act.  After  they  denied  the  said  charges  in  their

statements,  the  evidence  of  prosecution  witnesses  was

recorded.  

5. After  recording  the  evidence  of  the  prosecution

witnesses and considering all the relevant facts, the Trial

Court  vide  its  judgment  and  order  dated  4.02.2003

convicted  accused  No.3,  8  and  9  for  the  offence

punishable under section 302 of IPC and Sections 3, 4 of

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Explosive Substances Act and sentenced accused Nos.3

and  9  (Sheikh  Shamsul  and  Sheikh  Gheyas)  to  death

since the Court did not want to give them opportunity to

commit  third  homicide  as  they  had  already  been

convicted previously in some other homicidal death case.

Accused  No.8  was  sentenced  to  imprisonment  for  life.

The  accused  No.7  Sheikh  Chengwa  was  convicted  for

offence punishable under Section 302 read with Section

149 IPC and Sections 3 & 4 of the Explosive Substances

Act and sentenced him to rigorous imprisonment for 10

years. Rest of the accused were convicted for the offences

punishable under Section 302 read with Section 149 of

IPC and Section 27 of  the Arms Act and sentenced to

undergo  rigorous  imprisonment  for  a  period  of  three

years.  

6. Being  aggrieved  by  the  aforesaid  judgment  and

order  of  the  Trial  Court,  the  accused  persons  filed

appeals  before  the  High  Court.  While  1st Additional

Sessions Judge, Bhagalpur, made Death Reference No.2

of 2003 vide letter dated 18.02.2003 for confirmation of

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death sentence, Criminal Appeals Nos.92, 98, 122-126 of

2003  were  preferred  by  the  accused  persons  seeking

acquittal.  

7. The High Court vide its judgment and order dated

5th October, 2007, rejected the death reference and also

dismissed the aforesaid appeals filed by accused persons

and  confirmed  their  conviction.  However,  the  death

sentence of accused Sheikh Samsul and Sheikh Gheyas

was commuted to imprisonment for life. Aggrieved by the

aforesaid judgment and order passed by the High Court,

the accused persons have sought to challenge the same

before us in these appeals.

8. Keeping in mind the position of law as enunciated

in the case of  Ganga Kumar Srivastava Vs.  State of

Bihar, (2005) 6 SCC 211, pertaining to the principles for

exercise of  power under Article 136 of the Constitution of

India and settled by a series of decisions of this Court, we

shall now examine the evidence adduced by the parties

and the materials on record and see that in view of the

nature of offence alleged to have been committed by the

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appellants, whether the concurrent findings of  fact call

for  interference  in  the  facts  and  circumstances  of  the

case.  

9. In the present case, there are concurrent findings of

both  the  Courts  below  as  to  the  guilt  of  the  accused

persons.  The  High  Court  has  discussed  basically  four

issues in its judgment, viz. (a) interpretation of Section

172 of Code of Criminal Procedure, 1973; (b) veracity of

the  evidence  adduced; (c)  relevance  of  overt  act  in

conviction under Section 149 of the Penal Code; and (d)

rarest  of  the  rare  cases  theory  for  confirming  death

sentence.  

10. On the first issue, the High Court has observed that

police dairy cannot be used as evidence in the case but to

aid  it  in  such  inquiry  or  trial,  while  relying  upon the

judgment of this Court in Habeeb Mohammad Vs. State

of Hyderabad, AIR 1954 SC 51: 1954 SCR 475, wherein

it was held that when attention of a witness is not drawn

to  his  previous  statement  during  the  course  of

investigation, same cannot be looked into in exercise of

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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.

11. High  Court  further  found  distinction  between

judgments given in the case of Shambhu Nath Singh

Vs. State of Bihar, AIR 1960 SC 725 and that of Ram

Dular Rai & Ors. Vs. State of Maharashtra, 1961 SCR

(2) 773, though both the judgments discuss Section 149

of the IPC pertaining to unlawful assembly. With regard

to third issue, it  was observed by the High Court that

merely because informant (PW14) was left unharmed or

that  all  appellants  did  not  enter  into  the  shop,  the

prosecution case cannot be rejected,  since overt  act  of

acting and omitting with regard to common object was

proved after appraisal of the evidence in the Court below.

In  support  of  the  fourth  issue,  the  High  Court  while

relying upon its earlier judgments in State of Bihar Vs.

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

Bihar Vs.  Prajeet  Kumar Singh,  2006 (2)  PLJR 656,

rejected the  death reference holding that  the  case was

not falling in the category of rarest of rare cases.

12. While  upholding  the  judgment  and  order  of

conviction passed by the Trial Court, the High Court has

primarily  relied  upon  the  evidence  of  eye-witnesses,

PW14,  PW4,  PW5  and  PW9  who  were  found  to  be

trustworthy and reliable. The High Court held that the

accused were sharing the common object of doing away

the  deceased.  However,  from  a  perusal  of  the  cross

examinations of PW4 and PW5, it appears that there was

personal  enmity  and  PW3,  PW4,  PW14  were  made

accused  in  a  case  of  murder  of  Asfak,  son  of  Sheikh

Samsul,  appellant  herein.  PW14 had  also  filed  a  case

under  Section  307  of  IPC  against  the  appellants  two

years  prior  to  the  date  of  the incident  which was still

pending.

13. Further,  looking  to  the  evidence  given  by  PW9,

though not an eye-witness, the factum of assault with a

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bomb  on  deceased  Mohd.  Asad  was  corroborated.

According to him he is also a witness to the seizure of

empty cartridge from Sheikh Ishteyaque.  

14. Mr.  Huzefa  Ahmadi,  learned  senior  counsel  for

appellants  contented  that  both  the  Courts  below have

committed an error in convicting the appellants for the

offence  punishable  under  Section  302  IPC,  along-with

other  accused.  He  submitted  that  there  were  material

improvements  made  by  PW14  in  his  deposition  when

compared to the fardbeyan given to the police on the date

of the incident and no specific role has been attributed to

the present appellants. But after careful analysis of the

fardbeyan  (Ext.7), we have an entirely different opinion.

It  is  true  that  deposition  is  somewhere  literally  larger

than the  fardbeyan, however, it is no where contrary to

it. It may rightly be said that the deposition of PW14 is

merely elaborated form of statement recorded before the

police,  with  minor  contradictions.  Oral  evidence  of  a

witness  could  be  looked  with  suspicion  only  if  it

contradicts the previous statement.

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15. He further submitted that narration of the incident

by the deceased Asad to PW3, as stated by PW3, is only

to falsely implicate the present appellants. According to

him,  such  deposition  is  improbable  since  PW15  –

Investigating  Officer  of  the  case  and  PW12  did  not

narrate that deceased had regained consciousness and

named the accused and no other witness was examined

to prove the fact that deceased regained consciousness

and most importantly no recovery of gun has been made.

Thus, the prosecution case is shrouded with reasonable

doubt. It was further argued that in the light of judgment

of  this  Court in the case of K. M. Ravi and Ors. Vs.

State of Karnataka, (2009) 16 SCC 337, the appellants

holding outside shop cannot be held guilty,  wherein it

was held that  “mere presence or association with other

members  alone  does  not  per  se  be  sufficient  to  hold

everyone  of  them  criminally  liable  for  the  offences

committed  by  the  others  unless  there  was  sufficient

evidence on record to show that one such also indented to

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or knew the likelihood of commission of such an offending

act.”

16. Reliance was further placed on the judgment of this

Court in Jodhan Vs. State of Madhya Pradesh, (2015)

11 SCC 52, wherein it was held in paragraphs 25 & 26

that if the testimony is of an interested witness who have

a motive to falsely implicate the accused then the Court

before  relying  upon  his  testimony  should  seek

corroboration  in  regard  to  material  particulars.  In

paragraphs 28 & 29 also it was held that the testimony of

the  injured  witness  stands  on  a  higher  pedestal  than

other  witnesses  and  reliance  should  be  placed  on  it

unless  there  are  strong  grounds  for  rejection  of  his

evidence.  [See  also  Hem  Raj  and  Ors.  Vs.  State  of

Haryana, (2005) 10 SCC 614]

17. 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

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each other and deceased Asad was running towards the

shop when a bomb was allegedly thrown at him. Other

accused were standing with guns in their hands but they

did not share the common object and hence cannot be

held  liable.  In  support  of  this,  learned  senior  counsel

relied on the case of  Bhim Rao and Ors. Vs. State of

Maharashtra,  (2003)  3  SCC  37,  wherein  it  was

observed:   “In the absence of any material to the contrary, it should be presumed that those members of the  original  unlawful  assembly  who  only shared  the  common  object  of  assaulting deceased Prabhakar cannot be attributed with the subsequent change in the common object of some of the members of the assembly who entered  the  house  of  Prabhakar  and  caused grievous injuries to him. So far as the present appellants  are  concerned,  who stood  outside the house of the deceased and who could not have  known  what  actually  transpired  inside the  house,  the  act  of  those  members  of  the original  unlawful  assembly  who  entered  the house,  cannot  be  attributed,  hence,  as contended  by  the  learned  counsel  for  the appellants at the most these appellants will be liable to be punished for sharing the original common object  which  is  only  to  assault  the deceased, therefore, they can be held guilty of an offence punishable under Section 352 read with Section 149 only.”

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18. Mr.  Ravi  Bhushan,  learned  counsel  appearing  for

the respondent-State, on the other hand, supported the

order  of  conviction  and  sentence  passed  by  both  the

Courts below. He submitted that judgments cited by the

counsel  for  appellants  have  no  point  relevant  to  the

present case. The judgment given in the case of  K. M.

Ravi (supra), is not relevant in whatsoever manner to the

present  case,  as  in  the  present  case,  there  was

facilitating  the  act  of  hurling  of  bombs  by  the  other

accused persons as well as captivating the relatives of the

deceased so as to prevent them to come to his rescue.

This shows their active participation in the crime though

having overt act of merely holding guns outside the place

of occurrence.

19. It was further argued that the position cited in Bhim

Rao’s case (supra) is different from that of the present

case. PW14 and other witnesses present with him were

prevented  from  saving  the  victims  while  bombs  were

hurled at the deceased. While relying upon the evidence

of PW4, PW5, PW6 and PW16 and other witnesses, it is

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corroborated that after hurling of bomb by Shamsul and

Ashfaq the appellants fled away by firing in the air. One

of the appellants was caught with hot cartridge tied in his

lungi by PW-16 and this fact has been corroborated by

PW7,  PW9,  PW14,  PW15  and  PW16.  Therefore,  the

prosecution case  leaves  no room for  doubt  whatsoever

about the commission of offence by the appellants.

20. We have seen in the instant case that the witnesses

have vividly deposed about the genesis of the occurrence,

the participation and involvement of the accused persons

in the crime. The non-examination of the witnesses, who

might  have  been  there  on  the  way  to  hospital  or  the

hospital  itself  when  deceased  narrated  the  incident,

would  not  make  the  prosecution  case  unacceptable.

Similarly,  evidence  of  any  witness  cannot  be  rejected

merely  on  the  ground  that  interested  witnesses

admittedly had enmity with the persons implicated in the

case.  The  purpose  of  recoding  of  the  evidence,  in  any

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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.

21. Keeping the facts and circumstances of the present

case in mind, we wish to emphasize the judgment of this

Court in Jodhan’s case (supra) and the relevant part of

the judgment is reproduced hereunder: “On  the  bedrock  of  the  aforesaid pronouncement  of  law,  the  submission canvassed by Mr. Sharma does not merit any consideration inasmuch as the prosecution has been able to establish not only the appellant’s presence but also his active participation as a member of the unlawful assembly. He might not have  thrown  the  bomb  at  the  deceased,  but thereby he does not cease to be a member of the  unlawful  assembly  as  understood  within the ambit of Section 149 IPC and there is ample evidence on record to safely conclude that all the accused persons who have been convicted by  the  High  Court  had  formed  an  unlawful assembly  and  there  was  common  object  to assault  the  deceased  who  succumbed  to  the injuries  inflicted  on  him.  Thus  analysed,  the submission  enters  into  the  realm  of  total

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insignificance.”

22. In  the  instant  case,  the  witnesses,  as  the  High

Court  has  found and we have no reason to differ,  are

reliable and have stood embedded in their version and

remained unshaken. They have vividly deposed about the

genesis of occurrence, the participation and involvement

of  the  accused  persons  in  the  crime  and  the  injuries

inflicted on the deceased, and on each of them.

23. Thus, in the light of the above discussion, we are of

the view that the present appeals  are devoid of  merits

and the  judgment  passed by  the  High Court  does  not

warrant  interference.  These  appeals  are,  accordingly,

dismissed.

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

…………………………………..J.    (Ashok Bhushan)

New Delhi; February 23, 2017.