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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 5

th

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 1

st

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 1

st

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

5

th

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.