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 6

th

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 14

th

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

2

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

3

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

4

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.

5

5.On 15

th

April, 2000 investigation was taken over by Shri

Raja Ram Prasad (PW18) who on 16

th

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.

6

The trial court by its judgment dated 18

th

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 20

th

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

7

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

8

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

9

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

10

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.

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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 14

th

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 14

th

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 14

th

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 14

th

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 14

th

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 16

th

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 14

th

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 14

th

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 14

th

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 14

th

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 2

nd

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 27

th

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 2

nd

June, 2000 and that he recorded his statement on the

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

nd

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

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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

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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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