REPORTABLE

IN THE SUPREME COURT OF INDIA   

CRIMINAL APPELLATE JURISDICITION   

CRIMINAL APPEAL NOS.791-792 OF 2005    Sheo Shankar Singh                                   …Appellant

 Versus

 State of Jharkhand & Anr.                        …Respondents   

With   

CRIMINAL APPEAL NOS.793-794 OF 2005

Umesh Singh                                …Appellant   

 Versus   

 State of Jharkhand & Anr.                         …Respondents   

J U D G M E N T     

T.S. THAKUR, J.     1. These appeals by special leave are directed against a  

common judgment and order dated 6th May, 2005 passed by

the  High  Court  of  Jharkhand  at  Ranchi  whereby  the  

conviction of  appellant-Sheo Shankar Singh under  Section  

302 read with Section 34 IPC and that of appellant-Umesh  

Singh  under  Section  302  read  with  Section  34  IPC  and  

Section 27 of the Arms Act have been confirmed and the  

sentence of rigorous imprisonment for life imposed upon the  

said  two  appellants  by  the  Trial  Court  enhanced  to  the  

sentence of death. Criminal Revision Petition No.136 of 2004  

seeking  enhancement  of  sentence  imposed  upon  Umesh  

Singh  and  Sheo  Shankar  Singh  has  been  consequently  

allowed by the High Court while Criminal Revision Petition  

No.135  of  2004  filed  against  the  acquittal  of  three  other  

accused  persons  Md.  Zahid,  Premjeet  Singh  and  Uma  

Shankar Singh dismissed.

2. Briefly stated the prosecution case is that on 14th April,  

2000,  the  deceased-Shri  Gurudas  Chatterjee,  a  sitting  

member  of  Jharkhand  State  Legislative  Assembly  was  

returning to Nirsa from Dhanbad riding the pillion seat of a  

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motorcycle  that  was  being  driven by  the  first  informant  

Apurba Ghosh, examined at the trial as PW 16.  At about  

2.45 p.m. when the duo reached a place near Premier Hard  

Coke,  Apurba Ghosh, the informant heard the sound of  a  

gunshot  from  behind.  He  looked  back  only  to  find  that  

appellant-Sheo  Shankar  Singh  was  driving  a  black  

motorcycle  on the left  of  the  informant  with an unknown  

person, later identified as Umesh Singh, sitting on the pillion  

seat carrying a pistol in his hand. Umesh Singh, the pillion  

rider, is alleged to have fired a second time from close range  

which hit the deceased-Gurudas Chatterjee in the head, who  

slumped on the back of the informant thereby disturbing the  

balance of the motorcycle and bringing both of them to the  

ground. The motorcycle driven by Sheo Shanker Singh was  

stopped by him a little ahead whereupon Umesh Singh the  

pillion rider got down; walked back to the place where the  

deceased  had  fallen,  abused  the  informant  verbally  and  

asked him to  run away from there  failing  which even he  

would be killed.  So threatened the informant hurried away  

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from  the  spot  whereupon  Umesh  Singh-appellant  fired  a  

third bullet at the deceased, pushed his dead body down the  

side slope of the road, walked back to the motorcycle whose  

engine was kept running by Sheo Shankar Singh and fled  

towards Nirsa. Some people are said to have run towards  

them but were scared away by Umesh Singh with the gun.  

The motorcycle did not have a registration number. A crowd  

is  said  to have gathered on the spot  that  included Abdul  

Kudus  Ansari  (PW1)  and  Lal  Mohan  Mahto  (PW2)  who  

disclosed that they had seen Sheo Shankar Singh and one  

unknown  person  moving  on  a  motorcycle  without  a  

registration number sometime before the occurrence.

3. On hearing a rumour about the killing of the deceased  

MLA, Sub Inspector of Police Ramji Prasad (PW17) rushed to  

the  spot  and  recorded  the  statement  of  Apurba  Ghosh  

(PW16) in which the informant narrated the details of the  

incident as set out above. The statement of Apurba Ghosh  

constituted the First Information Report in the case which  

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was signed not  only  by Apurba Ghosh but  also  by Abdul  

Kudus Ansari (PW1) and Lal Mohan Mahto (PW2).  Based on  

the said  statement/FIR a  case under  Section  302/34 and  

120B of IPC and Section 27 of the Arms Act was registered  

in  Police  Station  Govindpur  and  the  investigation  

commenced.  

4. In the course of the investigation an inquest report was  

prepared  by  BDO,  Shishir  Kumar  Sinha, while  the  

investigating  officer  seized  two  empties  of  9  M.M.  bullet  

engraved with “HP 59/2” at the bottom from the spot, apart  

from  the  red  Hero  Honda  splendour  motorcycle  bearing  

registration No. WB 38 E 7053 on which the deceased was  

travelling at the time of occurrence. Blood-stained T Shirt  

and a light blue coloured jeans worn by Apurba Ghosh were  

also seized, besides blood-stained earth from the place of  

occurrence.   

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5. On 15th April, 2000 investigation was taken over by Shri  

Raja Ram Prasad (PW18) who on 16th April, 2000 seized the  

black  coloured  Bajaj  Caliber  motorcycle  allegedly  being  

driven by appellant-Sheo Shankar Singh at the time of the  

commission of the offence. In addition, a Test Identification  

Parade  was  got  conducted  in  which  Abdul  Qudus  Ansari  

(PW1) identified the accused appellant-Umesh Singh. After  

completion  of  the  investigation  a  charge-sheet  was  

eventually  filed  against  the  accused  persons  for  offences  

punishable  under  Section  302/34/120B  and  201  of  the  

Indian  Penal  Code.  Appellant-Umesh  Singh  was  further  

charged with an offence punishable under Section 27 of the  

Arms  Act.  The  accused  were  committed  to  the  Court  of  

Sessions at Dhanbad who made the case over to the Court  

of Additional Sessions Judge XIII, Dhanbad for trial before  

whom the accused pleaded not guilty and claimed a trial.

6. At  the  trial  the  prosecution  examined  20  witnesses  

while  the accused remained  content  with  two in  defence.  

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The trial court by its judgment dated 18th November, 2003  

found the appellants Sheo Shankar Singh and Umesh Singh  

guilty of the charges under Section 302/34 IPC. Appellant-

Umesh Singh was further held guilty of  the charge under  

Section 27 of the Arms Act. Out of the remaining six accused  

persons, the trial  court found Narmedeshwar Pd. Singh @  

Chora Master, Bijay Singh and Md. Nooren Master guilty of  

the charge under Section 302 read with Section 120B of the  

IPC.  Accused Uma Shankar Singh, Premjee Singh and Md.  

Zahid were, however, acquitted for insufficiency of evidence  

against them.   

7. By a separate order dated 20th November, 2003 passed  

by  the  Trial  Court,  appellants  Sheo  Shanker  Singh  and  

Umesh  Singh  were  sentenced  to  undergo  rigorous  

imprisonment  for  life.  Appellant-Umesh  Singh  was  in  

addition  sentenced  to  undergo  rigorous  imprisonment  for  

three  years  under  Section  27  of  the  Arms Act.  Similarly,  

accused  Narmedeshwar  Pd.  Singh  @ Chora  Master,  Bijay  

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Singh and Md. Nooren Master were sentenced to undergo  

rigorous imprisonment for life under section 302/120B IPC.  

8. Aggrieved  by  their  conviction  and  sentence,  the  

appellants herein and the other three convicts filed criminal  

appeals  No.43  and  78  of  2004  before  the  High  Court  of  

Jharkhand at  Ranchi.  Criminal  Revision Petition No.135 of  

2004  was  filed  by  Apurba  Ghosh  against  the  acquittal  of  

accused Uma Shankar Singh, Premjeet Singh and Md. Zahid,  

while Criminal Revision Petition No.136 of 2004 prayed for  

enhancement of the sentence imposed upon the appellants  

from life to death.  

9. By the judgment and order impugned in these appeals  

the High Court acquitted Narmedeshwar Pd. Singh @ Chora  

Master,  Bijay  Singh  and  Md.  Nooren  Master  and  allowed  

criminal appeals No.43 and 78 to that extent. The conviction  

of  appellants  Sheo  Shankar  Singh  and  Umesh  Singh  was  

upheld by the High Court and the sentence imposed upon  

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them  enhanced  to  the  sentence  of  death  by  hanging.  

Criminal  Revision  Petition  No.135  of  2004  against  the  

acquittal  of  Uma Shankar  Singh,  Premjeet  Singh and Md.  

Zahid was, however, dismissed and their acquittal affirmed.  

The  present  appeals  assail  the  correctness  of  the  said  

judgment and order as noticed above.

10. We have heard Mr. U.R. Lalit, learned senior counsel for  

the appellants, Mr. A.T.M. Rangaramanujam and Mr. Sunil  

Kumar,  learned  senior  counsels  appearing  for  the  

respondents  at  considerable  length.  We  have  also  been  

taken through the evidence on record and the judgments of  

the  Courts  below.  We  shall  presently  advert  to  the  

submissions  made  by  learned  counsel  for  the  parties  but  

before we do so we may at the outset point out that the  

cause  of  death  of  late  Shri  Gurudas  Chatterjee  being  

homicidal was not disputed and in our view rightly so. That  

is  because the evidence on record amply proves that the  

deceased died of gunshot injuries sustained by him in the  

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head. The deposition of Dr. Shailender Kumar (PW14) who  

conducted  the  post-mortem  examination  of  the  deceased  

along with two other doctors viz. Prof. Dr. Rai Sudhir Prasad,  

and Dr. Chandra Shekhar Prasad leaves no manner of doubt  

that the death of Shri Gurudas Chaterjee was the result of  

two ante-mortem gunshot  wounds,  which the witness has  

described as under in his deposition in the Court and the  

post-mortem report, Ex.5:  

I. Fire arm wound of entrance ¾ cm x ½ cm  cavity  deep  with  inverted  margins  and  abrasion  collar  located  on  the  front  of  upper portion of left side of face about 1.5  cm in front of Pinna of left ear. No burning,  singing or tattooing were seen.

II. Fire arm exit wound 1¼ cm x ¾ cm cavity  deep with inverted margins placed 2.5 cm  above the mid zone of right eye brow. No  evidence of abrasion collar seen.

III.Fire  arm  wound  of  entrance  ¾  cm  diameter,  cavity  deep  with  inverted  margins and abrasion collar on left side of  back of  head in prito  occipital  area 5 cm  away from left ear low. No burning, singing  or tattooing were seen.

IV.Fire arm exit wounds ¾ cm diameter cavity  deep with inverted margins and protruding  

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brain matter in the left side of back of head  in perito occipital area 2 cm away from left  ear low. No abrasion collar was seen.

Injury no.IV is the exit wound of injury no.1  and injury no.2 is exit wound of injury no.3 as  it  was  confirmed  by the track  of  blood clot  and laceration found in dissection.  

V.   Lacerated wounds:

a) 1cm x ½ cm x scalp deep on the right side  of forehead, 6 cm above the inner end of  right eye brow.

b) ¾ cm x ½ cm x scalp deep on occuipttal.

VI.  Abrasions:    a) 1-½ cm x ¾ cm on middle of left side of  

forehead.

b) 2½ cm x 1½ cm with tail of 3 cm x ½ cm  horizontally  placed  on  back  of  right  shoulder.

c) ½ cm linear  abrasion  of  9  cm x  1/3  cm  horizontally placed on back of lower portion  of left side of chest.

d) 2½ cm x ¾ cm on back of left side flank of  abdomen.”

On dissection

Multiple  fractures  of  frontal  and  both  parietal  bones  were  found  Stomach  contain  about 100 M.L.  semi digested rice and sag.  

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All  viscera  were  pale,  heart  and  bladder  empty.

Opinion

In  our  opinion  death  occurred  instantaneously due to aforementioned cranio  – cerebral injuries resulting from the fire arm.

Time elapsed since death – between 18  and 24 hrs. before the time of post-mortem.”

11. In the light of the above there is no gainsaying that the  

deceased died a homicidal death caused by gunshot injuries.  

Apart from the fact that cause of the homicidal death was  

never questioned by the accused before the trial court, the  

appellate  court  or  even  before  us,  the  line  of  cross-  

examination of the doctor who conducted the post-mortem  

examination  too  does  not  question  the  veracity  of  the  

opinion of the medical  expert that the deceased had died  

because of the gunshot injuries received by him.  It is true  

that the doctor has not been able to specifically state which  

of the two gunshot injuries had proved fatal, but that in our  

opinion  is  wholly  inconsequential,  having  regard  to  the  

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sequence  of  events  unfolded  by  the  deposition  of  the  

witnesses examined at the trial.

12. Coming then to the substratum of the prosecution case  

we need point out that the same rests entirely on the ocular  

testimony of  Apruva Ghosh (PW16) and Prasant  Banerjee  

(PW6), apart from the incriminating circumstances called in  

aid by the prosecution to lend support and corroboration to  

the testimony of the said two eye-witnesses. We shall take  

up for discussion the deposition of the said witnesses, but  

before we do so we may deal with the question whether the  

prosecution has proved any motive for the commission of  

the crime alleged against the appellants and if so to what  

effect.  

13. The  legal  position  regarding  proof  of  motive  as  an  

essential  requirement  for  bringing  home  the  guilt  of  the  

accused is fairly well settled by a long line of decisions of  

this  Court.  These  decisions  have  made a  clear  distinction  

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between cases where prosecution relies upon circumstantial  

evidence on the one hand and those where it relies upon the  

testimony  of  eye  witnesses  on  the  other.  In  the  former  

category of cases proof of motive is given the importance it  

deserves, for proof of a motive itself constitutes a link in the  

chain of circumstances upon which the prosecution may rely.  

Proof  of  motive, however,  recedes into the background in  

cases  where  the  prosecution  relies  upon  an  eye-witness  

account of the occurrence. That is because if the court upon  

a  proper  appraisal  of  the  deposition  of  the  eye-witnesses  

comes to the conclusion that the version given by them is  

credible,  absence  of  evidence  to  prove  the  motive  is  

rendered  inconsequential.  Conversely  even  if  prosecution  

succeeds in establishing a strong motive for the commission  

of  the  offence,  but  the  evidence  of  the  eye-witnesses  is  

found unreliable or unworthy of credit, existence of a motive  

does not  by  itself  provide  a  safe  basis  for  convicting  the  

accused. That does not, however, mean that proof of motive  

even in a case which rests on an eye-witness account does  

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not lend strength to the prosecution case or fortify the court  

in its ultimate conclusion. Proof of motive in such a situation  

certainly  helps  the  prosecution  and  supports  the  eye-  

witnesses.  See  Shivaji  Genu  Mohite v.  The  State  of  

Maharashtra, (1973) 3 SCC 219,  Hari Shanker v.  State  

of U.P. (1996) 9 SCC 40 and  State of Uttar Pradesh v.  

Kishanpal and Ors. (2008) 16 SCC 73.

14. The  case  at  hand  rests  upon  the  deposition  of  the  

eyewitnesses  to the occurrence.  Absence of  motive would  

not, therefore, by itself make any material difference.  But if  

a  motive  is  indeed  proved  it  would  lend  support  to  the  

prosecution version. The question is whether the prosecution  

has established any such motive to fortify its charge against  

the appellants.  

15. Depositions  of  Apurba  Ghosh  (PW16),  Aamlal  Kisku  

(PW15)  and  Arup  Chatterjee  (PW19)  are  relevant  on  the  

question  of  motive  and  may  be  briefly  discussed  at  this  

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stage.  Arup Chatterjee (PW19) happens to be the son of the  

deceased Gurudas Chatterjee. According to this witness the  

appellants and most of their family members constitute what  

is described by him as “coal mafia” of Dhanbad whom the  

deceased  used  to  fight,  with  the  help  of  the  police  and  

administration to prevent the theft of coal in the region. The  

witness further states that Aamlal Kisku had a petrol pump  

situate at Belchadi,  which petrol  pump was given by Shri  

Kisku  to  the  accused-Sheo  Shanker  Singh  for  being  run.  

Aamlal Kisku being an illiterate adivasi was, according to the  

witness, being kept as a bonded (bandhua) labourer by the  

appellant  on  payment  of  Rs.30/-  per  day.  The  witness  

further states that Aamlal  Kisku approached the deceased  

for  help  and  the  later  with  the  help  of  police  and  

administration  got  the  ownership  of  the  petrol  pump  

restored to Shri Kisku. Both these steps namely prevention  

of theft of coal in the region and restoration of the petrol  

pump to Aamlal Kisku annoyed the appellant-Sheo Shanker  

Singh,  for  which reason the deceased was done to death  

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after he had won his third consecutive election to the State  

Assembly.

16. In  cross-examination  the  witness  has  expressed  his  

ignorance  about  the  land  where  the  petrol  pump  was  

installed and about the source of income of Aamlal Kisku.  

The witness also expressed ignorance about the expenditure  

involved in the installation of the pump or the source from  

where Shri Kisku had arranged finances. The witness stated  

that criminal cases were pending before the Court against  

Sheo Shanker Singh and Narmedeshwar Pd. Singh and his  

sons, but expressed ignorance about filing of the civil suit by  

Narmadeshwar Singh regarding the petrol pump in dispute.  

Witness  claimed  to  have  heard  a  conversation  between  

Aamlal Kisku and the deceased regarding the dispute over  

the petrol pump.

17. Aamlal Kisku (PW15) has, in his deposition, stated that  

he owns a petrol pump in Belchadi which was allotted to him  

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out of the Advasi quota. Since he was not familiar with the  

business in the sale of oil and lubricants he had taken help  

from  Narmedeshwar  Pd.  Singh  and  Sheo  Shanker  Singh.  

Subsequently Sheo Shanker Singh-appellant started treating  

him  like  a  labourer  and  did  not  render  any  accounts  

regarding the petrol pump. He, therefore, made complaints  

to  the  company  and  approached  late  Gurudas  Chatterjee  

MLA, and it was after long efforts that the petrol pump was  

restored  to  the  witness.  Sheo  Shankar  Singh  and  

Narmedeshwar  Pd.  Singh  had  extended  threats  to  him  

regarding which he had informed the police.

18. In  cross-examination  the  witness  stated  that  the  

business  of  petrol  pump  was  carried  on  by  him  in  

partnership with Sheo Shanker Singh for 4-5 months in the  

year 1997. No partnership-deed was, however, written.  He  

did not know whether any joint account with the appellants  

had been opened in Poddardih branch of  Allahabad Bank.  

He also did not know whether sales tax registration was in  

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joint names and whether the land belonged to Sheo Shankar  

Singh.  The witness  admits  that  he  had lodged a  criminal  

case against Sheo Shankar Singh, Rama Shanker Singh and  

Rajesh  Singh  and  that  another  case  was  filed  against  

Narmedeshwar Pd. Singh also. The witness denied that the  

petrol pump had been installed with the help of the money  

provided  by  Sheo  Shanker  Singh  and  Narmedeshwar  Pd.  

Singh and that the cases referred to by him had been lodged  

against the said two persons on the incitement of others.   

19. Apurba Ghosh (PW16) apart from being an eye-witness  

to the incident also mentions about a petrol pump situated  

on  G.T.  Road  at  Nirsa  owned  by  a  person  belonging  to  

Scheduled  Tribe  community  but  was  being  run  by  

Narmedeshwar  Pd.  Singh  illegally.  The  deceased  fought  

against them with the help of Police and local administration  

because of which the ownership of the petrol pump was got  

restored to the owner concerned. The witness also refers to  

a statement made by the deceased regarding coal theft 5 or  

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6 days before the incident in question as a result whereof  

Narmedeshwar Pd. Singh and Nooren Master were both sent  

to jail.

20. There  is  thus  evidence  to  prove  that  a  petrol  pump  

situated at G.T. Road at Nirsa stood in the name of Aamlal  

Kisku which had been allotted in his name in the Scheduled  

Tribe’s quota. It is also evident that to establish and run the  

said petrol pump Aamlal Kisku had taken the help from Shri  

Narmedeshwar Pd. Singh and Sheo Shankar Singh. Disputes  

between  the  original  allottee  and  the  appellant-Sheo  

Shankar Singh and his father Narmedeshwar Pd. Singh had,  

however,  arisen  and  manifested  in  the  form  of  civil  and  

criminal  cases  between  them.  Aamlal  Kisku  had  in  that  

connection taken the help of the deceased who had with the  

help  of  the  police  and  local  administration  secured  the  

restoration of the petrol pump to Shri Kisku which annoyed  

the  appellant-Sheo  Shankar  Singh  and  his  father  

Narmedeshwar  Pd.  Singh.  There  is  also  evidence  to  the  

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effect that the deceased had acted against what has been  

described as ‘coal mafia’ of Dhanbad with the help of police  

and administration to prevent the coal  theft in the region  

and the steps taken by the deceased had resulted in the  

arrest  of  Narmedeshwar  Pd.  Singh  and  Nooren  Master  in  

connection  with  the said  cases.  Both  these circumstances  

appear to have contributed to the incident that led to the  

killing of the deceased who was perceived by the appellants  

as a hurdle in their activities.   

21. That brings us to the most critical part of the case in  

which we shall examine whether the prosecution has proved  

beyond  a  reasonable  doubt,  the  sequence  of  events  on  

which is  based the charge of  murder  levelled against  the  

appellants.  The evidence adduced by the prosecution in this  

regard comprises the following distinct features:

(i) Evidence  suggesting  that  on  the  date  of  occurrence and proximate in point of time  the appellants were seen together riding a  

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black  coloured  motor  cycle,  without  a  registration number.

(ii) Evidence establishing  seizure of the motor  cycle  on  which  the  deceased  was  riding  from the place of occurrence and that which  was  being  driven  by  appellant-Sheo  Shankar Singh from his factory.

(iii) The  eye witness account of the occurrence  as given by Shri Apurva Ghosh PW16 and  Shri Prabshant Banerjee PW6.   

(iv) Medical evidence, supporting the version of  PW 16, that he sustained injuries when he  fell  from the motor  cycle  being  driven by  him on the deceased who was on the pillion  being shot by appellant Umesh Singh.

We propose to deal with each one of the above aspects ad  

seriatim.  

22. Abdul Kudus Ansari (PW1), in his deposition before the  

trial  court  stated that on 14th April,  2000 i.e.  the date of  

occurrence while he was at “Amona turn” (Mod in Hindi) he  

saw appellant-Sheo Shankar Singh going towards Nirsa on a  

Caliber Motorcycle at about 11.15 A.M.  The witness further  

states that he was at Amona Mod till  around 1 p.m.-1.15  

p.m.  when  he  saw  appellant-Sheo  Shankar  Singh  going  

22

towards Gobindpur on a motorcycle with another person on  

the  pillion  seat.  At  about  2.45  p.m.  when he was  at  his  

house,  he  heard  that  the  deceased  M.L.A.  had  been  

murdered. He reached the spot where some persons were  

already present. The person who was driving the motorcycle  

on which the deceased was riding said that appellant-Sheo  

Shanker Singh was driving the motorcycle while the person  

sitting behind had fired the shots.  In a Test Identification  

Parade  the  witness  claims  to  have  identified  appellant-

Umesh Singh as the person whom he had seen on the pillion  

seat  of  the  motorcycle  driven  by  appellant-Sheo  Shankar  

Singh  on  the  date  of  the  occurrence.  The  witness  was  

extensively  cross-examined  by  the  defence,  but  there  is  

nothing in  the deposition  which  would  render  the version  

given by him doubtful and unworthy or credence. The fact  

that the witness is a signatory to the statement of Apurba  

Ghosh  (PW16),  which  statement  was  recorded  by  the  

Investigating Officer on 14th April, 2000 at about 4.15 p.m.  

only  shows  that  he  had  indeed  reached  the  place  of  

23

occurrence immediately after hearing about the killing of the  

deceased as stated by him in his deposition in the court; and  

that he had not only offered but actually identified the pillion  

rider in the Test Identification Parade.

23. To the same effect is the deposition of Lal Mohan Mahto  

(PW2) who in his deposition stated that on 14th April, 2000  

at  about  11  A.M.  he  saw  the  deceased  going  towards  

Dhanbad on a motorcycle,  who told him to stay near the  

party office at Ratanpur. After some time he saw appellant-

Sheo  Shanker  Singh  riding  a  motorcycle  without  a  

registration number and going towards Nirsa. Around 1.30  

P.M.  again  he  saw  the  said  appellant  going  towards  

Govindpur by the same motorcycle with one other person  

sitting on the pillion seat.  Around 3 P.M. there was a hue  

and cry that M.L.A. Shri Gurudas Chatterjee had been killed.  

He reached the G.T. Road at Deoli and found the deceased  

soaked in  blood.   Apurva Ghosh (PW16) told  the witness  

that  while  appellant-Sheo  Shanker  Singh  was  driving  the  

24

motorcycle the person sitting behind had fired the bullet that  

killed  the  deceased.  The  witness  identified  the  appellant-

Sheo  Shanker  Singh  as  the  person  who  was  driving  the  

motorcycle and appellant-Umesh Singh as the person who  

was sitting on the pillion seat.   

24. In cross-examination this witness has, inter alia, stated  

that he reached the place of occurrence on hearing the noise  

about the killing of the deceased. There was a crowd.  The  

police  had  arrived  on  the  spot  after  few  minutes  of  his  

reaching  there.  He  told  the  police  he  could  identify  the  

person sitting behind Sheo Shankar Singh and that he knew  

Apurva Ghosh (PW16) from the date of incident itself.  He  

had seen Sheo Shankar Singh standing near Khalsa hotel on  

the date of the incident. At that time there was nobody with  

him.  The  witness  denies  being  a  member  of  Maharashta  

Coordination  Committee  (MCC).  He  admitted  being  a  

member of the Committee formed for the construction of a  

memorial to Gurudas Chatterjee.  

25

25. The  deposition  of  Subodh  Chandra  Kumbhkar  (PW8)  

goes to show that the appellant-Umesh Singh was seen by  

the witness on 14th April, 2000 at 11.00 a.m. at Amona turn  

(Mod) when he visited the restaurant of the witness for food.  

The witness further stated that he had seen appellant-Sheo  

Shankar Singh on the same day in the morning towards the  

side of the weigh bridge (Kanta).  Appellant-Sheo Shankar  

Singh was at that time with Vijay Singh Chaudhari.  

26. In cross-examination this witness has stated that the  

license  to  run  the  restaurant  (described  as  Hotel  by  the  

witness)  is  in  the  name  of  his  brother  Nagenddra  Nath  

Kumbhkar. He is running the hotel for the past 10-12 years.  

The  witness  does  not  know  where  Umesh  Singh  used  to  

work and had no acquaintance with him. The witness denied  

the suggestion that he used to ask Umesh Singh about his  

well being whenever he met him. Umesh Singh had on that  

date taken food in the hotel of the witness and gone away.  

There  were  several  others  like  Tapan  Bharti  and  Mantoo  

26

present in the restaurant. The witness denied the suggestion  

that he had made a false statement that he had seen Sheo  

Shankar Singh and Umesh Singh on the date of the incident.  

There is nothing in the deposition of even this witness that  

could render his version unworthy of credence.

27. The depositions of all the witnesses referred to above,  

in our opinion, satisfactorily prove that the appellants were  

seen hanging around the place of occurrence on 14th April,  

2000 and were seen together riding a motorcycle without  

registration number going towards Govindpur at around 1.30  

p.m. which is proximate in point of time when the deceased  

was  gunned  down.  From  the  deposition  of  Abdul  Kudus  

Ansari  (PW1)  it  is  further  proved  that  the  witness  had  

identified Umesh Singh as the person who was riding the  

motorcycle sitting behind appellant-Sheo Shankar Singh not  

only in the Court, but also in the test identification parade  

held during the course of investigation.       

27

28. Coming to the second aspect on which the prosecution  

has led evidence in support of its case we may point out that  

while the motorcycle on which the deceased was travelling  

along with Apurba Ghosh PW16 was seized from the place of  

occurrence  in  terms  of  seizure  memo marked  Exh.3,  the  

Motor Cycle used by accused was seized from the premises  

of Kalyans Vyapor Brisket Udyog owned by the appellant-

Sheo Shankar Singh. This seizure was made on 16th April,  

2000 at 2.20 p.m. From a reading of the seizure memo it is  

evident that the motorcycle was a black colour, Caliber Bajaj  

make with no registration number on the plate. From the  

motorcycle  was recovered a  certificate  of  registration  and  

fitness showing the name of Jai Shankar Singh, son of N.P.  

Singh  of  Nirsa,  as  its  owner.  Jai  Shankar  Singh,  it  is  

noteworthy,  is  none other  than  the  brother  of  appellant-

Sheo Shankar Singh.   

29. Apart  from  the  seizure  mentioned  above,  the  

prosecution  has  led  evidence  to  prove  that  the  empty  

28

cartridges of 9 M.M. bullets with HP-59-II and Triger mark  

on them were seized from the place of occurrence. One of  

the  empty  cartridges  was  recovered  from  near  the  dead  

body while the other was recovered from the mud footpath  

on the southern side of the road. This is evident from the  

seizure  memo  marked  Exh.1/9.  In  addition  and  more  

importantly  is  the  seizure  of  light  green  T-shirt  of  the  

complainant-Apurba Ghosh (PW-16) with blood stains at the  

arm  and  back  thereof.  The  T-shirt  is  torn  near  the  left  

shoulder. Blue coloured jeans worn by the witness was also  

seized with a tear on the left knee.  The deposition of Abdul  

Qudus  (PW1)  and  Lal  Mohan  Mahto  (PW2)  support  these  

seizures  which  corroborate  the version  of  the  prosecution  

that the occurrence had taken place at the spot from where  

the dead body, the motorcycle, the empty cartridges and the  

blood stained earth were seized. The seizure of the T-shirt  

and  the  Jeans  worn  by  Apurba  Ghosh  (PW16)  with  

bloodstains on the T-shirt,  scratches damaging the T-shirt  

near the left shoulder and the Jeans on the left knee also  

29

corroborates the prosecution version that when hit by the  

bullet fired by the pillion rider of the motorcycle driven by  

appellant-Sheo Shankar Singh, the motorcycle on which the  

deceased  was  travelling  lost  its  balance  bringing  both  of  

them down to the ground and causing damage to the clothes  

worn by Apurba Ghosh (PW16) and injuries to his person.  

The Courts below have, in our opinion, correctly appreciated  

the evidence produced by the prosecution in this regard and  

rightly concluded that the seizure of the articles mentioned  

above  clearly  supports  the  prosecution  version  and  the  

sequence of evidence underlying the charge.

30. The  third  aspect  on  which  the  prosecution  has  led  

evidence and which we need to examine before we go to the  

deposition  of  the  eye  witnesses  is  the  medical  evidence,  

supporting the version of Apurba Ghosh (PW16) that he had  

sustained injuries when he fell down from the motor cycle  

after the deceased had been shot by the appellant-Umesh  

Singh. Reliance is in this regard placed by the prosecution  

30

upon the request  made by Ramjee Prasad (PW17) to the  

Medical Officer, Primary Health Centre, Govindpur by which  

Apurba Ghosh (PW16) was sent for treatment with a request  

for issue of an injury report. The requisition is dated 14th  

April, 2000 and records three injuries which the witness had  

sustained apart from the complaint of pain in the chest and  

the  body.  Dr.  S.C.  Kunzni  of  Primary  Health  Centre,  

Govindpur accordingly examined the injured Apurba Ghosh  

(PW16)  at  10.25 p.m.  on 14th April,  2000 and found the  

following injuries on his person:

1.    Complain of chest pain.

2.   An abrasion about ½” x ½” injury on the left knee it.  And blackish colour.  

3. An abrasion on the lateral malloouo of left leg which is  ¼” x ¼” size.  

4. Abrasion  about  ½”  in  radius  on  circular  in  size  and  blackish crust on the left shoulder.  

5. Complain of body ache.    

31

31. The certificate goes on to state that the injuries had  

been sustained within 8 hours and had been caused by hard  

and  blunt  substance.  The  making  of  the  requisition,  the  

medical examination of the injured, the presence of injuries  

on  his  person  have  been,  in  our  opinion,  satisfactorily  

proved by the prosecution and go a long way to support the  

prosecution version that Apurba Ghosh (PW16) was driving  

the motorcycle at the time of the incident and had sustained  

injuries once he lost his balance after the deceased sitting  

on the pillion was shot by the appellant-Umesh Singh.   

32. Time now to examine the eye-witness account of the  

occurrence. In his deposition before the trial  court Apurba  

Ghosh  (PW16)  stated  that  according  to  a  previously  

arranged  programme  he  had  borrowed  a  Hero  Honda  

motorcycle from one of his friends and reached the house of  

the deceased Gurudas Chatterji at 7.00 a.m.  After visiting  

the  party  office  and  talking  to  some  persons  there  the  

deceased returned to his  residence  at  9.30 a.m.,  had his  

32

meals and left for Dhanbad at about 10.15 a.m. On the way  

they  visited  Mylasia  Company  and  finally  started  for  

Dhanbad from there at 11.00 a.m. At Govindpur Block they  

met Lal Mohan Mahto (PW2) who was told by the deceased  

to remain at the party office till he returned from Dhanbad.  

They  started  from  Dhanbad  at  about  12.00  noon  and  

reached Kalyan Bhawan for the meeting in which the MLA  

met  the  people  assembled  there.  In  the  meantime  the  

witness  went  to  the  mining  office  which  was  closed  and  

handed over a sum of Rs.9850/- to the Peon for making a  

deposit  of  the  same  towards  royalty.  The  witness  then  

returned to the place where the meeting was convened and  

started back for Nirsa at around 1.30 p.m. on the motorcycle  

with the deceased sitting on the pillion seat. At about 2.45  

p.m. they crossed Premier Hard Coke, situated at G.T. Road,  

when the witness heard the sound of firing from behind. On  

this  he  turned  back  only  to  see  that  one  100  CC  black  

coloured Caliber motorcycle which was being driven by the  

appellant-Sheo  Shankar  Singh  with  an  unknown  person  

33

sitting on the pillion carrying a pistol in his right hand, was  

on his  left.  The person fired a second shot  which hit  the  

deceased who slumped on the back of the witness with the  

result  that  the  balance  of  the  motorcycle  got  disturbed  

bringing the witness and the deceased down to the ground.  

The appellant-Sheo Shankar Singh stopped the motorcycle  

being driven by him at some distance whereupon the man  

sitting  at  the  back  ran  towards  the  deceased  verbally  

abusing the witness and asking him to run away. On seeing  

this,  the  witness  started  running  towards  the  west.  The  

unknown person went near the MLA and fired another shot  

and pushed the dead body towards the slope on the side of  

the  road.  The  unknown  person  then  ran  back  to  the  

motorcycle driven by Sheo Shanker Singh who was waiting  

for him with the engine of the motorcycle running.  

33. The witness further stated that a crowd assembled near  

the place of  occurrence including Lal  Mohan Mahto (PW2)  

and Abdul  Kudus Ansari  (PW1) who stated that  they had  

34

seen Sheo Shankar Singh riding 100 CC black colour Caliber  

motorcycle  without  a  registration  number  going  towards  

Nirsa. After some time they had again seen appellant-Sheo  

Shankar  Singh  coming  back  from  Nirsa  going  towards  

Govindpur.  At  about  1.15  p.m.  Sheo  Shankar  Singh  was  

again seen by these two witnesses going towards Govindpur  

on the same motorcycle with a person sitting on the pillion  

seat.  The  witness  proved  the  statement  recorded  by  the  

investigating  officer  after  the  police  arrived  at  the  spot,  

which statement has been marked Exh.1/6. The witness also  

identified in the Court Sheo Shankar Singh as the person  

driving the motorcycle and Umesh Singh as the person who  

had fired  the bullets  that  killed  the deceased.  He further  

stated that he was given treatment for the injuries sustained  

by  him  and  that  his  bloodstained  clothes  as  also  the  

motorcycle were seized.  

34. The  witness  was  cross-examined  extensively  but  his  

deposition has been accepted by the Courts below who have  

35

found the  version  to  be  both  consistent  and reliable.  Mr.  

Lalit, learned senior counsel all the same took pains to read  

before us the entire deposition of this witness, in an attempt  

to show that he was not actually present on the spot with  

the deceased at the time of the occurrence either driving his  

motorcycle  or  otherwise.  He urged that the witness  could  

not have looked back while driving the motorcycle and that  

the fleeting glimpse he may have got of the assailant was  

not enough for the witness to identify him. We do not think  

so. There is in the first place nothing inherently improbable  

about  the  manner  in  which  the  witness  has  narrated  the  

occurrence or his presence on the spot. There is not even a  

suggestion of any enmity between the appellants and the  

witness nor a bias  favouring the prosecution to make his  

version  suspect.  The  narration  given  by  the  witness  is  

natural and does not suffer from any material inconsistency  

or improbability of any kind. Having said that we must also  

note that the presence of the witness on the spot is proved  

by PWs 1 & 2, Abdul Kudus Ansari  and Lal  Mohan Mahto  

36

both of whom reached the place of occurrence immediately  

after  hearing  about  the  killing  of  the  deceased  and  met  

Apurba  Ghosh (PW16)  on the spot.  Both  these  witnesses  

have  testified  that  the  T-shirt  worn  by  the  witness  was  

bloodstained and the motorcycle which he was driving was  

lying on the spot  with the dead body of  the deceased at  

some  distance.  Both  of  them have  signed  the  statement  

made  by  Apurba  Ghosh  (PW16)  before  the  police  which  

constitutes the first information report about the incident in  

which both of them have claimed that they have seen Sheo  

Shankar  Singh  with  one  other  person  going  on  the  

motorcycle  whom  they  could  identify.  The  presence  of  

Apurba  Ghosh  (PW16)  on  the  spot  is  testified  even  by  

Prasant  Banerjee  (PW6),  also  an  eye-witness  to  the  

occurrence.  That  apart  the  presence  of  injuries  on  the  

person of  the Apurba Ghosh (PW16) duly certified by the  

medical officer concerned, and the fact that the T-shirt worn  

by him was torn at two different places corresponding to the  

injuries sustained by him also corroborates the version given  

37

by  the  witness  that  he  was  driving  the  motorcycle  as  

claimed by him when the deceased was gunned down.  

35. It is noteworthy that the first information report was  

registered  without  any  delay  and  Apurba  Ghosh  (PW 16)  

medically examined on 14th April, 2000 itself though late in  

the evening.  All  these  circumstances  completely  eliminate  

the possibility of the witness being a planted witness. The  

testimony  of  this  witness  and  the  deposition  of  the  PWs  

Abdul Kudus Ansari and Lal Mohan Mahto prove his being  

with the deceased before the incident and being on the spot  

immediately  after  the  occurrence  with  bloodstains  on  his  

clothes  with  the  motorcycle  being  driven  by  him  lying  

nearby.  We have,  therefore,  no  difficulty  in  affirming  the  

finding recorded by the two courts below that the deceased  

was  travelling  with  Apurba  Ghosh  (PW16)  on  the  latter’s  

motorcycle  from  Dhanbad  to  Nirsa  at  the  time  of  the  

occurrence  and  was,  therefore,  a  competent  witness  who  

38

could and has testified to this occurrence, as the same took  

place.   

36. Mr.  Lalit,  then argued that while  a test  identification  

parade had been conducted in which the appellant-Umesh  

Singh was identified by Abdul Kudus Ansari  (PW1) as the  

person who was the pillion rider with Sheo Shankar Singh  

driving the motorcycle, the version of Apurba Ghosh (PW16)  

was not similarly put to test by holding a test identification  

parade for him also. He urged that while the identification of  

the accused in the Court is the substantive evidence and a  

test  identification parade only meant to reassure that the  

investigation of the case is proceeding in the right direction,  

the failure of the prosecution to offer an explanation for not  

holding a test  identification parade for  this  witness would  

cast a serious doubt about the credibility of the witness and  

his version that it was the appellant-Umesh Singh who had  

shot the deceased. Relying upon the decision of this Court in  

Krishna Govind Patil v.  State of Maharashtra 1964 (1)  

39

SCR 678, Mr. Lalit argued that Umesh Singh had not been  

identified  properly  and  cannot,  therefore,  be  convicted  in  

which  event  Section  34  will  not  be  available  to  convict  

appellant-Sheo Shankar Singh also.  

37. It is fairly well-settled that identification of the accused  

in  the  Court  by  the  witness  constitutes  the  substantive  

evidence in a case although any such identification for the  

first time at the trial may more often than not appear to be  

evidence  of  a  weak  character.  That  being  so  a  test  

identification  parade  is  conducted  with  a  view  to  

strengthening the trustworthiness of the evidence. Such a  

TIP then provides corroboration to the witness in the Court  

who  claims  to  identify  the  accused  persons  otherwise  

unknown  to  him.  Test  Identification  parades,  therefore,  

remain in the realm of investigation. The Code of Criminal  

Procedure  does  not  oblige  the  investigating  agency  to  

necessarily hold a test identification parade nor is there any  

provision under which the accused may claim a right to the  

40

holding  of  a  test  identification  parade.  The  failure  of  the  

investigating agency to hold a test identification parade does  

not, in that view, have the effect of weakening the evidence  

of  identification  in  the  Court.  As  to  what  should  be  the  

weight attached to such an identification is a matter which  

the  Court  will  determine  in  the  peculiar  facts  and  

circumstances of each case. In appropriate cases the Court  

may accept the evidence of identification in the Court even  

without  insisting  on  corroboration.  The  decisions  of  this  

Court on the subject are legion. It is, therefore, unnecessary  

to  refer  to  all  such  decisions.  We  remain  content  with  a  

reference to the following observations made by this Court  

in Malkhansingh and Ors. v. State of M.P. (2003) 5 SCC  

746 :

“It is trite to say that the substantive evidence is the  evidence  of  identification  in  court.  Apart  from the  clear provisions of Section 9 of the Evidence Act, the  position in law is well settled by a catena of decisions  of this Court. The facts, which establish the identity  of the accused persons, are relevant under Section 9  of  the  Evidence  Act.  As  a  general  rule,  the  substantive evidence of a witness is the statement  made in court. The evidence of mere identification of  the accused person at the trial for the first time is  

41

from its very nature inherently of a weak character.  The purpose of a prior test identification, therefore,  is to test and strengthen the trustworthiness of that  evidence. It is accordingly considered a safe rule of  prudence to generally look for corroboration of the  sworn  testimony  of  witnesses  in  court  as  to  the  identity of the accused who are strangers to them, in  the  form  of  earlier  identification  proceedings.  This  rule of prudence, however, is subject to exceptions,  when,  for  example,  the  court  is  impressed  by  a  particular witness on whose testimony it can safely  rely,  without  such  or  other  corroboration.  The  identification  parades  belong  to  the  stage  of  investigation, and there is no provision in the Code  of Criminal Procedure which obliges the investigating  agency to hold, or confers a right upon the accused  to  claim a  test  identification  parade.  They  do  not  constitute  substantive  evidence  and  these  parades  are essentially governed by Section 162 of the Code  of  Criminal  Procedure.  Failure  to  hold  a  test  identification  parade  would  not  make  inadmissible  the evidence of identification in court. The weight to  be attached to such identification should be a matter  for  the courts of  fact.  In appropriate cases it  may  accept  the  evidence  of  identification  even  without  insisting  on  corroboration.  (See  Kanta  Prashad v.  Delhi  Admn.  AIR  1958  SC  350,  Vaikuntam  Chandrappa v.  State  of  A.P.  AIR  1960  SC  1340,  Budhsen v.  State  of  U.P.  (1970)  2  SCC  128 and  Rameshwar  Singh v.  State  of  J&K.  (1971)  2  SCC  715)”

38. We  may  also  refer  to  the  decision  of  this  Court  in  

Pramod Mandal v.  State  of  Bihar (2004)  13  SCC 150  

where this Court observed:

“20. It is neither possible nor prudent to lay down  any invariable rule as to the period within which a  test  identification  parade  must  be  held,  or  the  

42

number of witnesses who must correctly identify the  accused,  to  sustain  his  conviction.  These  matters  must be left to the courts of fact to decide in the  facts and circumstances of each case. If a rule is laid  down  prescribing  a  period  within  which  the  test  identification  parade  must  be  held,  it  would  only  benefit the professional criminals in whose cases the  arrests are delayed as the police have no clear clue  about their identity, they being persons unknown to  the victims. They, therefore, have only to avoid their  arrest for the prescribed period to avoid conviction.  Similarly, there may be offences which by their very  nature may be witnessed by a single witness, such  as rape. The offender may be unknown to the victim  and the case depends solely on the identification by  the victim, who is otherwise found to be truthful and  reliable. What justification can be pleaded to contend  that such cases must necessarily result in acquittal  because of there being only one identifying witness?  Prudence  therefore  demands  that  these  matters  must  be  left  to  the  wisdom of  the  courts  of  fact  which must consider all aspects of the matter in the  light of the evidence on record before pronouncing  upon  the  acceptability  or  rejection  of  such  identification.”

39. The  decision  of  this  Court  in  Malkhansingh’s case  

(supra) and Aqeel Ahmad v. State of Uttar Pradesh 2008  

(16) SCC 372 adopt a similar line of the reasoning.

40. The omission of the investigating agency to associate  

Apurba Ghosh (PW16) with the test identification parade in  

which Abdul Kudus Ansari (PW1) identified Umesh Singh will  

not  ipso  jure prove  fatal  to  the  case  of  the  prosecution,  

although the investigating agency could and indeed ought to  

43

have  associated  the  said  witness  also  with  the  test  

identification  parade  especially  when  the  witness  had  not  

claimed familiarity  with  the appellant-Umesh Singh before  

the incident. Even so, its omission to do so does not, in our  

opinion, affect the credibility of the identification of the said  

appellant  by  Apurba  Ghosh  (PW16)  in  the  Court.  That  is  

because the manner in which the incident has taken place  

and the opportunity which Apurba Ghosh (PW16) had, to see  

and  observe  the  actions  of  appellant-Umesh  Singh  were  

sufficient for the witness to identify him in the Court.  This  

opportunity  was  more  than  a  fleeting  glimpse  of  the  

assailants. Appellant-Umesh Singh was seen by the witness  

pillion riding the motorcycle, coming in close proximity to his  

motorcycle,  shooting  the  deceased  from  close  range,  

stopping  at  some  distance  and  coming  back  to  the  

motorcycle where the deceased and the witness had fallen,  

abusing and threatening the witness and asking him  to run  

away  from  the  spot.  All  this  was  sufficient  to  create  an  

impression that would remain imprinted in the memory of  

44

anyone who would go through such a traumatic experience.  

It is not a case where a chance and uneventful glance at  

another  motorcyclist  may  pass  without  leaving  any  

impression  about  the  individual  concerned.  It  is  a  case  

where the nightmare of  the occurrence would stay in the  

memory of and indeed haunt the person who has undergone  

through the experience for a long long time. Absence of a  

test identification parade and the failure of the Investigating  

Officer  to  associate  the  witness  with  the  same does  not,  

therefore, make any material difference in the instant case.

41. Mr.  Lalit  next  contended  that  according  to  the  

prosecution case and deposition of Apurba Ghosh (PW16),  

the  T-shirt  worn  by  him  had  got  bloodstained  when  the  

deceased was shot.  He urged that although the T-shirt was  

seized by the investigating officer the same was not sent to  

the  forensic  science  laboratory  for  examination  and  for  

matching the blood group of the deceased with that found  

on the T-shirt nor were the empty cartridges seized from the  

45

spot sent to the Ballistic Expert. This was, according to the  

learned  counsel,  a  serious  discrepancy  which  adversely  

affected the prosecution version that Apurba Ghosh (PW16)  

indeed  was  the  driver  of  the  motorcycle  on  which  the  

deceased was a pillion rider.

42. It  is  true  that  not  only  according  to  Apurba  Ghosh  

(PW16) but also according to Abdul Kudus Ansari (PW1), Lal  

Mohan Mahto (PW2) and the Investigating  Officer,  the T-

shirt worn by Apurba Ghosh (PW16) was bloodstained which  

was seized in terms of the seizure memo referred to earlier.  

It  is  also  true  that  a  reference  to  the  forensic  science  

laboratory  would  have  certainly  corroborated  the  version  

given  by  these  witnesses  about  the  T-shirt  being  

bloodstained and the blood group being the same as that of  

the  deceased.  That  no  explanation  is  forthcoming for  the  

failure  of  the  prosecution  in  making  a  reference  to  the  

forensic  science laboratory which could have strengthened  

the version  given by Apurba Ghosh (PW16) too  is  not  in  

46

dispute. The question, however, is whether the failure of the  

investing  agency  to  make  a  reference  would  in  the  

circumstances of the case discredit either the version of the  

witnesses  that  the  T-shirt  was  bloodstained  when  it  was  

seized or constitute a deficiency of the kind that would affect  

the  prosecution  version.  Our  answer  is  in  the  negative.  

Failure to make a reference to forensic science laboratory is  

in the circumstances of the case no more than a deficiency  

in the investigation of the case. Any such deficiency does not  

necessarily lead to the conclusion that the prosecution case  

is totally unworthy of credit.  Deficiencies in investigation by  

way of  omissions  and  lapses  on  the  part  of  investigating  

agency cannot in themselves justify a total rejection of the  

prosecution case. In Ram Bihari Yadav v. State of Bihar  

and Ors. (1998) 4 SCC 517 this Court while dealing with  

the  effect  of  shoddy  investigation  of  cases  held  that  if  

primacy was given to such negligent investigation or to the  

omissions  and  lapses  committed  in  the  course  of  

investigation, it will shake the confidence of the people not  

47

only  in  the  law  enforcing  agency  but  also  in  the  

administration of justice. The same view was expressed by  

this  Court  in  Surendra Paswan  v.  State of  Jharkhand  

(2003) 12 SCC 360. In that case the investigating officer  

had not sent the blood samples collected from the spot for  

chemical examination. This Court held that merely because  

the sample was not so sent may constitute a deficiency in  

the  investigation  but  the  same  did  not  corrode  the  

evidentiary value of the eye-witnesses.

43. In Amar Singh v. Balwinder Singh and Ors. (2003)  

2 SCC 518 the investigating agency had not sent the firearm  

and  the  empties  to  the  forensic  science  laboratory  for  

comparison.  It  was  argued on behalf  of  the  defence  that  

omission was a major flaw in the prosecution case sufficient  

to  discredit  prosecution  version.  This  Court,  however,  

repelled that contention and held that in a case where the  

investigation is found to be defective the Court has to be  

more circumspect in evaluating the evidence. But it would  

48

not be right to completely throw out the prosecution case on  

account of any such defects, for doing so would amount to  

playing in the hands of the investigating officer who may  

have kept the investigation designedly defective. This Court  

said:

“It  would  have  been  certainly  better  if  the  investigating agency had sent the firearms and the  empties  to  the  Forensic  Science  Laboratory  for  comparison.  However,  the  report  of  the  ballistic  expert  would  in  any  case  be  in  the  nature  of  an  expert opinion and the same is not conclusive. The  failure  of  the  investigating  officer  in  sending  the  firearms  and  the  empties  for  comparison  cannot  completely throw out the prosecution case when the  same  is  fully  established  from  the  testimony  of  eyewitnesses whose presence on the spot cannot be  doubted as they all received gunshot injuries in the  incident.”

44. In the light of the above the failure on the part of the  

investigating officer in sending the blood stained clothes to  

the  FSL  and  the  empty  cartridges  to  the  ballistic  expert  

would not be sufficient to reject the version given by the eye  

witnesses.  That  is  especially  so  when  a  reference  to  the  

ballistic expert would not have had much relevance since the  

weapon  from  which  the  bullets  were  fired  had  not  been  

49

recovered  from  the  accused  and  was  not,  therefore,  

available for comparison by the expert.

45. It was argued by Mr. Lalit  that  the version given by  

Apurba  Ghosh  (PW16)  about  his  having  borrowed  the  

motorcycle on which the deceased was travelling with him  

on the pillion on the fateful day had not been corroborated  

by examining the owner of the motorcycle. The fact that no  

effort was made by Apurba Ghosh (PW16) or by the owner  

to  have  the  motorcycle  released  in  his  favour  also,  

contended the learned counsel, adversely reflected upon the  

veracity of the case set up by the prosecution.  We do not  

think so. The fact that the motorcycle on which the deceased  

was travelling along with Apurba Ghosh (PW16) was found  

at the place of occurrence is amply proved by the evidence  

adduced  by  the  prosecution.  It  is  also  clear  that  the  

motorcycle in question did not belong either to the deceased  

or to Apurba Ghosh (PW16). In the circumstances there is  

no improbability in the version of Apurba Ghosh (PW16) that  

50

the  said  motorcycle  had  been borrowed  by  him from his  

friend. The mere fact that the owner of the motorcycle or  

Apurba  Ghosh (PW16)  had not  applied  for  release  of  the  

motorcycle in their favour does not in the least affect the  

prosecution case muchless does it render the same doubtful  

in toto.   

46. It  was  also  contended  by  Mr.  Lalit  that  the  first  

information  report  was  not  lodged  as  claimed  by  the  

prosecution. According to the learned counsel if appellant-

Sheo Shankar Singh had been named in the first information  

report, there is no reason why the investigating officer would  

not have gone after him before taking any further step in  

the  matter.  The  argument  has  not  appealed  to  us.  The  

incident in question had taken place around 2.45 p.m. The  

statement  of  Apurba  Ghosh  (PW16)  was  recorded  by  the  

investigating officer at around 4.15 p.m. on the same day  

based  on  which  first  information  report  No.90/2000  was  

registered  in  the  police  station.  The  copy  of  the  first  

51

information was received by the jurisdictional magistrate on  

15.4.2000. Apart from Apurba Ghosh (PW16) the statement  

was also signed by Abdul Kudus Ansari (PW1) and Lal Mohan  

Mahto (PW2). All  the three witnesses have stood by what  

has been attributed to them in the first information report.  

In the absence of any unexplained or abnormal delay in the  

registration  of  the  case  and  the  despatch  of  the  first  

information report to the jurisdictional magistrate we have  

no reason to hold that the obvious is not the real state of  

affairs as claimed by Mr. Lalit.

47. We may now turn to the deposition of Prasant Banerjee  

(PW6) who is the other eye-witness to the occurrence. This  

witness has in his  deposition before the trial  court  stated  

that on 14th April, 2000 he was at a distance of about 100  

yards from the place of occurrence. According to the witness  

while  he  was  going  on  his  motorcycle  with  Ravi  Ranjan  

Prasad, on the pillion seat the deceased Gurdas Chatterjee  

was  going  on  the  pillion  seat  of  another  motorcycle.  

52

Appellant-Sheo Shankar Singh was following the deceased  

on a motorcycle with appellant-Umesh Singh sitting on the  

pillion  of  that  motorcycle.  The witness  further  states  that  

appellant-Sheo Shankar  Singh took the motorcycle  to the  

left of the motorcycle on which the deceased was travelling  

whereupon appellant-Umesh Singh who was sitting on the  

pillion fired two shots because of  which the deceased fell  

down on the south side of the G.T. Road. The motorcycle of  

appellant-Sheo Shankar Singh stopped at a short distance  

whereupon the appellant-Umesh Singh got down from the  

motorcycle and came to the place where the deceased was  

lying and then fired another shot at him, pushed him so that  

his body rolled down the slope.  Appellant-Umesh Singh then  

returned to the motorcycle and went away towards Nirsa.  

The witness further stated that he knew both the accused-

appellants.  

48. In  cross-examination  this  witness  stated  that  he  

remained on the spot for 10-15 minutes after the occurrence  

53

during which time Ravi Ranjan was with him. He and Ravi  

Ranjan then proceeded to Panchat.  He did  not  lodge any  

report in the police station but the witness told his wife, son  

and father about the occurrence. He knew the deceased for  

the last  10-12 years  prior  to  the occurrence but  had not  

visited his house. He was summoned to the police station in  

the month of April 2000 but could not meet the officer in-

charge.  The  police  recorded  his  statement  one  and  half  

months after the occurrence at Nirsa. The witness further  

states that the first shot from the motorcycle was fired from  

behind  that  injured  the  back  portion  of  the  head of  MLA  

while the second shot was fired by appellant-Umesh Singh  

after he got down from the motorcycle which too had injured  

the deceased in his head. The witness further stated that a  

large crowd had assembled at the place of occurrence during  

the time he remained on the spot but he did not talk to any  

person nor remember any persons having talked to him. The  

witness also denies the suggestion made to him that he had  

old  friendship  with  appellants-Umesh  Singh  and  Sheo  

54

Shankar Singh or that he had been frequently visiting the  

house of  both the appellants.  The witness  stated that  he  

went to the place where Gurdas Chatterji had fallen after 7-

8 minutes and that 10-15 persons had arrived at the place  

of occurrence before he reached there. The witness denied  

the suggestions that he is a member of the political party of  

the deceased-Gurdas Chatterji.

49. Mr. Lalit contended that Mr. Prasant Banerjee (PW-6)  

was  not  an  eye-witness  as  he had come to  the  place  of  

occurrence 7-8 minutes after the occurrence. He also argued  

that the witness had not made any statement to the police  

till 2nd June, 2000 which renders his story suspect. There is  

no doubt a delay of one and half months in the recording of  

statement  of  Prasant  Banerjee  (PW-6).  The  question  is  

whether  the  same should  by itself  justify  rejection  of  his  

testimony. Our answer is in the negative. The legal position  

is  well  settled  that  mere  delay  in  the  examination  of  a  

particular  witness  does  not,  as  a  rule  of  universal  

55

application, render the prosecution case suspect. It depends  

upon  circumstances  of  the  case  and  the  nature  of  the  

offence  that  is  being  investigated.   It  would  also  depend  

upon  the  availability  of  information  by  which  the  

investigating  officer  could  reach the  witness  and examine  

him.  It  would  also  depend  upon  the  explanation,  if  any,  

which the investigating officer may offer for the delay. In a  

case where the investigating officer has reasons to believe  

that a particular witness is an eye-witness to the occurrence  

but  he  does  not  examine  him  without  any  possible  

explanation for any such omission, the delay may assume  

importance and require the Court to closely scrutinize and  

evaluate the version of the witness but in a case where the  

investigating  officer  had  no  such  information  about  any  

particular individual being an eye-witness to the occurrence,  

mere delay in examining such a witness would not ipso facto  

render the testimony of the witness suspect  or affect the  

prosecution version. We are supported in this view by the  

decision  of  this  Court  in  Ranbir and  Ors.  v.  State  of  

56

Punjab (1973) 2 SCC 444 where this Court examined the  

effect of delayed examined of a witness and observed:

“....... The question of delay in examining a witness  during investigation is material only if it is indicative  and  suggestive  of  some  unfair  practice  by  the  investigating agency for the purpose of introducing a  got-up  witness  to  falsely  support  the  prosecution  case.  It  is,  therefore,  essential  that  the  “Investigating  Officer  should  be  asked  specifically  about the delay and the reasons therefore......”  

50. Again  in  Satbir  Singh and Ors. v.  State  of  Uttar  

Pradesh (2009) 13 SCC 790 the delay in the examination of  

the witness was held to be not fatal to the prosecution case.  

This Court observed:

“32. Contention  of  Mr.  Sushil  Kumar  that  the  Investigating  officer  did  not  examine  some  of  the  witnesses on 27th January, 1997 cannot be accepted  for more than one reason; firstly, because the delay  in  the  investigation  itself  may  not  benefit  the  accused; secondly, because the Investigating Officer  (PW 8) in his deposition explained the reasons for  delayed examination of the witnesses…..”     

57

51. The investigating officer has, in the instant case, stated  

that Prasant Banerjee (PW6) had met him for the first time  

on 2nd June, 2000 and that he recorded his statement on the  

very same day. He has further stated that prior to 2nd June,  

2000 he had no knowledge that Prasant Banerjee (PW6) was  

a  witness  to  the  occurrence.  Even  Prasant  Banerjee  has  

given an explanation how the investigating officer reached  

him. According to his deposition the Inspector had told him  

that he had come to record his statement after making an  

enquiry from the person who was sitting on the pillion of his  

motorcycle on the date of occurrence. Ravi Ranjan the pillion  

rider  had also informed him that  his  statement had been  

recorded by the police. The Trial Court and the High Court  

have accepted the explanation offered by the investigating  

officer for the delay.  We see no reason to take a different  

view or to reject the testimony of this witness only because  

his  statement  was  recorded  a  month  and  half  after  the  

occurrence.  

58

52. Coming  then  to  the  second  facet  of  the  submission  

made by Mr. Lalit, we find that the contention urged by the  

learned counsel is not based on an accurate reading of the  

deposition of the witness. The witness has clearly stated that  

he has seen the deceased going on a motorcycle on the date  

of  the occurrence  and that  appellant-Sheo  Shankar  Singh  

had brought his motorcycle to the left of the motorcycle of  

the deceased whereupon appellant-Umesh Singh pillion rider  

had shot the deceased in the head. The version given by the  

witness does not admit of being understood to suggest that  

the  witness  reached  the  place  of  occurrence  after  the  

occurrence had taken place. What the witness has stated is  

that he went to the place where the deceased had fallen 5-7  

minutes  after  the  occurrence  was  over.  Witnessing  the  

occurrence  cannot  be  confused  with  going  to  the  place  

where the deceased had fallen. On a careful reading of the  

deposition of the witness we do not see any infirmity in the  

same that may justify the rejection of the version of PW6.  

Both the Courts below have, in our opinion, rightly accepted  

59

the testimony of Prashant Banerjee PW 6 while finding the  

appellants guilty.  

53. That brings us to the question whether the present is  

one of those rare of rarest cases in which the High Court  

could have awarded to the appellants the extreme penalty of  

death.    

54. In  Jagmohan Singh v.  The State of U.P (1973) 1  

SCC 20 a Constitution Bench of this Court held that in cases  

of culpable homicide amounting to murder the normal rule is  

to sentence the offender to imprisonment for life, although  

the Court could for special reasons to be recorded in writing  

depart from that rule and impose a sentence of death. The  

Court held that while a large number of murders are of the  

common  type,  there  are  some  that  are  diabolical  in  

conception and cruel in execution.  Such murders cannot be  

wished away by finding alibis in the social maladjustment of  

the  murderer.  Prevalence  of  such  crimes  speaks  in  the  

60

opinion of many, for the inevitability of death penalty not  

only  by way of  a  deterrence  but  as  a  token of  emphatic  

disapproval by the society.

55. In  Bachan Singh v.  State of Punjab (1980) 2 SCC  

684  this  Court  examined  the  constitutional  validity  of  

Section  302  IPC  and  sentencing  procedure  provided  in  

Section 354 (3) of the Code of Criminal Procedure and ruled  

that  Section  302 of  the  Indian Penal  Code,  1860 did  not  

violate Article 19 or Article 21 of the Constitution of India.  It  

was  further  held  that  while  considering  the  question  of  

sentence to be imposed for the offence of murder the Court  

must  record  every  relevant  circumstance  regarding  the  

crime as well as the criminal and that if the Court finds that  

the  offence  is  of  an  exceptionally  depraved  and  heinous  

character and constitutes on account of its design and the  

manner of its execution,  a source of grave danger to the  

society at large, it may impose the death sentence. Taking  

note  of  the  aggravating  circumstances  relevant  to  the  

61

question  of  determination  of  the  sentence  to  be  imposed  

upon an offender, this Court held that death sentence could  

be  imposed  only  in  the  rarest  of  rare  cases  when  the  

alternative option was unquestionably foreclosed.  This Court  

observed:

“209. …….Judges  should  never  be  bloodthirsty.  Hanging of murderers has never been too good for  them. Facts and Figures, albeit incomplete, furnished  by the Union of India, show that in the past, courts  have  inflicted  the  extreme  penalty  with  extreme  infrequency — a fact which attests to the caution and  compassion which they have always brought to bear  on the exercise of their sentencing discretion in so  grave a matter. It is, therefore, imperative to voice  the  concern  that  courts,  aided  by  the  broad  illustrative guide-lines indicated by us, will discharge  the onerous function with evermore scrupulous care  and humane concern, directed along the highroad of  legislative policy outlined in Section 354(3) viz., that  for persons convicted of murder, life imprisonment is  the rule and death sentence an exception. A real and  abiding  concern  for  the  dignity  of  human  life  postulates resistance to taking a life through law’s  instrumentality. That ought not to be done save in  the rarest of rare cases when the alternative option  is unquestionably foreclosed.”

56. In Machhi Singh and Ors. v. State of Punjab (1983)  

3 SCC 470 this Court followed the guidelines flowing from  

Bachan Singh’s case (supra) and held that death sentence  

could be imposed only in the rarest of rare cases when the  

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collective conscience of the community is so shocked that it  

would  expect  the  holders  of  judicial  power  to  inflict  the  

death  penalty  irrespective  of  their  personal  opinion  as  

regards  the  desirability  or  otherwise  of  retaining  death  

penalty as a sentencing option. This Court enumerated the  

following circumstances in which such a sentiment could be  

entertained by the community:

“(1) When the murder is committed in an extremely  brutal,  grotesque,  diabolical,  revolting  or  dastardly  manner  so  as  to  arouse  intense  and  extreme  indignation of the community.

(2) When the murder  is  committed for  a motive  which  evinces  total  depravity  and  meanness;  e.g.  murder by hired assassin for money or reward; or  cold-blooded murder for gains of a person vis-a-vis  whom the murderer is in a dominating position or in  a position of trust;  or murder is  committed in the  course for betrayal of the motherland.

(3) When  murder  of  a  member  of  a  Scheduled  Caste or minority community etc., is committed not  for  personal  reasons  but  in  circumstances  which  arouse social wrath; or in cases of “bride burning” or  “dowry  deaths”  or  when  murder  is  committed  in  order  to  remarry  for  the sake of  extracting dowry  once again or to marry another woman on account of  infatuation.

(4) When the crime is enormous in proportion. For  instance when multiple murders, say of all or almost  all  the members of a family or a large number of  

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persons of a particular caste, community, or locality,  are committed.

(5) When the victim of murder is an innocent child  or  a  helpless  woman or  old  or  infirm person or  a  person  vis-a-vis  whom  the  murderer  is  in  a  dominating  position,  or  a  public  figure  generally  loved and respected by the community”

57. In Farooq alias Karattaa Farooq and Ors.  v.  State  

of Kerala (2002) 4 SCC 697 this Court was dealing with a  

case  where  the  appellant  was  alleged  to  have  thrown  a  

bomb on an under-trial prisoner at the jail gate resulting his  

death  and  severe  injuries  to  others.  Relying  upon  the  

decision of this Court in Bachan Singh case and in the case  

of  Machhi Singh  (supra) this Court held that the extreme  

penalty  of  death  was  not  called  for  and  accordingly  

commuted the sentence to life imprisonment.

58. In Santosh Kumar Satishbhushan Bariyar v. State  

of Maharashtra (2009) 6 SCC 498 this Court once again  

reviewed the case law on the subject  and reiterated that  

although  judicial  principle  of  imposition  of  death  penalty  

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were  far  from  being  uniform  the  basic  principle  that  life  

imprisonment  is  the rule and death penalty an exception,  

would call  for  examination of  each case to determine the  

appropriateness of punishment bearing in mind that death  

sentence  is  awarded  only  in  rarest  of  rare  cases  where  

reform is not possible. The discretion given to the Court in  

such cases assumes importance and its exercise rendered  

extremely difficult  because of  the irrevocable  character  of  

that penalty.  The Court held where two views are possible  

imposition of death sentence would not be appropriate, but  

where there is no other option and where reform was not  

possible  death  sentence  may  be  imposed.  Applying  the  

principles evolved in Bachan Singh case and in the case of  

Machhi  Singh  (supra)  this  Court  commuted  the  death  

sentence  awarded  to  one  of  the  appellants  to  life  

imprisonment  holding  that  the  case  did  not  satisfy  the  

“rarest of rare” test to warrant the award of death sentence,  

even  when  the  decapitation  of  the  victim’s  body  and  its  

disposal was termed brutal.   

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59. State  of  Maharashtra  v.  Prakash  Sakha  Vasave  

and Ors.  (2009) 11 SCC 193 too was a case where this  

Court  while  setting  aside  the  acquittal  of  the  accused  

awarded life imprisonment to him. That was a case where  

the accused was alleged to have hit the deceased with an  

axe with such great force that the axe got struck into the  

head of the deceased and the handle of the axe was also  

broken.  

60. Coming to the case at hand we are of the opinion that  

the High Court  was not justified in imposing the extreme  

penalty of death upon the appellants. We say so for reasons  

more  than  one.  Firstly,  because  the  appellants  are  not  

professional killers. Even according to the prosecution they  

were  only  a  part  of  the  coal  mafia  active  in  the  region  

indulging in theft of coal from the collieries.  The deceased  

being opposed to such activities appears to have incurred  

their wrath and got killed. Secondly, because even when the  

deceased was a politician there was no political angle to his  

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killing.  Thirdly,  because  while  all  culpable  homicides  

amounting  to  murder  are  inhuman,  hence  legally  and  

ethically  unacceptable  yet  there  was  nothing  particularly  

brutal,  grotesque,  diabolical,  revolting  or  dastardly  in  the  

manner of its execution so as to arouse intense and extreme  

indignation  of  the  community  or  exhaust  depravity  and  

meanness  on  the  part  of  the  assailants  to  call  for  the  

extreme penalty. Fourthly, because there was difference of  

opinion on the question of sentence to be awarded to the  

convicts. The Trial Court did not find it to be a rarest of rare  

case and remained content with the award of life sentence  

only  which  sentence  the  High  Court  enhanced  to  death.  

Considering  all  these  circumstances,  the  death  sentence  

awarded  to  the  appellants  in  our  opinion  deserves  to  be  

commuted to life imprisonment.

61. In  the  result,  we  affirm  the  judgments  and  orders  

under appeal with the modification that instead of sentence  

of  death awarded by the High Court,  the appellants  shall  

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suffer  rigorous  imprisonment  for  life.  The  appeals  are  

accordingly  allowed  but  only  in  part  and  to  the  extent  

indicated above.

                                   ...........................J.                                           (V.S. SIRPURKAR)

...........................J. (T.S. THAKUR)

New Delhi February 15, 2011

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