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CASE NO.:

Appeal (crl.) 98 of 1999

PETITIONER:

State of M.P through C.B.I., etc.

RESPONDENT:

Paltan Mallah, etc.

DATE OF JUDGMENT: 20/01/2005

BENCH:

K.G. Balakrishnan & Dr. AR. Lakshmanan

JUDGMENT:

J U D G M E N T

WITH

CRIMINAL APPEAL NOS. 99/1999, 100-102/1999, 103-108/1999, 109-

114/1999

K.G. BALAKRISHNAN, J

Criminal Appeal Nos. 98-102 of 1999 and Criminal Appeal Nos. 109-114

of 1999 are filed by the State of Madhya Pradesh through CBI and the Criminal

Appeal Nos. 103-108 of 1999 are filed by the Chattisgarh Mukti Morcha. All

these appeals arise out of the common Judgment passed by the High

Court of Madhya Pradesh on 26.6.1998. Nine accused persons were tried

by the Second Addl. Sessions Judge, Durg, M.P. Accused nos. 1 to 8 were

charged for the offence under Section 302 read with Section 120B IPC.

The 9th accused was charged under Section 302 read with Section 120B,

and in the alternative, Section 302 read with Section 34 IPC and Section

25(1)(A) and Section 27 of the Arms Act. The Sessions Judge acquitted A-6

Naveen Shah, A-7 Chandrabaksh Singh and A-8 Baldev Singh Sandhu. A-1

Chandrakant Shah, A-2 Gyan Prakash Mishra, A-3 Avdhesh Rai, A-4 Abhay

Kumar Singh, A-5 Moolchand Shah and A-9 Paltan Mallah @ Ravi were

convicted by the Sessions Judge for the offence under Section 302 read with

Section 120B. A-9 Paltan Mallah was found guilty of the offence punishable

under Section 302 IPC and sentenced to capital punishment whereas other

accused were sentenced to life imprisonment. The High Court by the

impugned Judgment acquitted all the accused of the charges framed against

them.

Deceased Shankar Guha Yogi was a popular, powerful trade union

leader in the industrial region of Bhillai, Durg, which was part of the then State

of Madhya Pradesh. Deceased Shankar Guha Niyogi had been working for the

welfare of the labour demanding living wages, bonus, reinstatement of

retrenched workers and he organised the workers of the various industrial units

at Bhillai and Durg. The labourers had an organisation by name

"CHATTISGARH MUKTI MORCHA" (hereinafter being referred to as "CMM")

and deceased Niyogi became a leader of this organisation. He was leading the

labourers working at Rajaram Mines area which was a main source of raw

material iron ore for the Bhillai Steel Plant at Durg. In the year 1989, there was

an agitation by the workers of industrial unit by name ACC, which is a leading

cement manufacturer. A settlement was reached at the instance of deceased

Niyogi. The workers in other industrial establishments sought the help of

deceased Niyogi to solve their problems. In the year 1990, he came to Bhillai

and started occupying quarter no. MIG 1/55of HUDCO. He stayed there with

his servant Bahal Ram. The other members of his family continued to stay

near Rajhara. Deceased Niyogi set up an office for CMM at MIG-2/273

HUDCO. In the year 1990, there was widespread labour movement against

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the management of various industrial units such as Simplex, Kedia, B.E.C, B.K,

etc. According to the prosecution, the management of these industrial units

started opposing the labour movement and there was even physical attack on

some of the leaders of CMM. One Uma Shankar Rai, a leader of CMM was

fatally assaulted by the agents of the industrialists. Deceased Niyogi

apprehended serious threat to his life from the industrialists, especially from

Simplex and Kedia Group of Industries. He made notes in his diary regarding

the apprehension of danger from the management of these industrial units. On

27.9.1991, he had gone to Raipur and there he met one Rajendra Sail,

Secretary General of PUCL and reporter N.K. Singh of "India Today". He

expressed an apprehension of danger to his life from Kedia and also from A-5

Moolchand Shah and A-1 Chandrakant Shah of Simplex Group. On 27.9.1991

at about midnight, he left Raipur for Bhillai and reached his quarter no. MIG-

1/55 of HUDCO and went to bed. His servant Bahal Ram was occupying the

neighbouring room. In the night, Bahal Ram heard a noise like bursting of

crackers and he rushed to the room of Niyogi and found Niyogi writhing in pain

on his bed. The window was found open. Bahal Ram called for help of the

neighbour Sripad Mategaonkar. Few workers from the CMM came to the place

and it was found that Niyogi had been shot. He was immediately taken to the

Sector 9 Hospital of Bhillai. Before reaching the hospital, Niyogi succumbed to

the gun shot injuries. Post-mortem examination was conducted by a team of

doctors and they opined that death was due to bullet injuries.

Preliminary investigation was carried out by PW-182 Deputy

Superintendent of Police Shri M.G. Agarwal. There was agitation by the

workers that investigation shall be conducted by the Central Bureau of

Investigation and the Government of Madhya Pradesh requested the Union of

India seeking help of the Central Bureau of Investigation. As part of police

investigation, PW-182 visited the scene of occurrence and got prepared map of

the site and he took steps to see that viscera of the victim was sent for

laboratory tests. He took into custody the pellets recovered from the body of

Niyogi. He took statements from Bahal Ram, the servant and also from the

widow and daughter of deceased. He got prepared photograph Exh. P-180 to

P-196. He got report from Serum Science and Chemical Analysis which are

marked as Exh. P-430 to P-432. He recorded statements of various other

witnesses. Accused A-3 Avdhesh Rai was taken into custody on 13.10.1991.

On 1.11.1991, he seized diary of deceased Niyogi and on 9.11.1991 he

handed over the investigation to CBI officials.

PW-187 R.S. Dhankad took over the investigation along with PW 192

R.S. Prasad. PW-187 held search of Oswal Industry. He recorded the

statements of Zakkiruddin on 21.11.1991. This witness identified the

photographs of A-2 Gyan Prakash Mishra and A-3 Abhay Kumar Singh. PW-

192 conducted further investigation of the case along with other officers. On

10.11.1991, he seized the window curtains from the house of Niyogi. On

15.11.1991, he conducted searches of the business premises of Jain and Shah

and Company, 108 A.Khan Goga Complex and recovered articles under Exh.

P-297.

After the arrest of accused Paltan Mallah on 25.8.1993, he got

recovered 12 bore country made weapon, 13 live cartridges of 12 bore, a

foreign made revolver, 6 live cartridges of .38 bore and a red colour Suzuki

motorcycle. He sent Exh. P-403 and 404 to Central Forensic Laboratory

(CBI), New Delhi. He conducted various other searches and recovered

incriminating articles from the other accused. After investigation, final report

was filed.

On the side of prosecution, PW 1 to PW-192 were examined by the trial

court.

The High Court by the impugned judgment acquitted all the accused

and that is challenged before us.

We elaborately heard the counsel for the State, counsel for the

Chattisgarh Mukti Morcha and also various other counsel who appeared for the

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accused persons. The accused A-1, A-3, A-4, A-5 and A-7 were found guilty

by the Sessions Court on the basis of the circumstantial evidence adduced by

the prosecution. The Division Bench held that these circumstances were not

sufficient to prove the guilt of the accused. This being an appeal against

acquittal, this Court would be slow in interfering with the findings of the High

Court, unless there is perverse appreciation of the evidence which resulted in

serious miscarriage of justice and if the High Court has taken a plausible view

this Court would not be justified in interfering with the acquittal passed in favour

of the accused and if two views are possible and the High Court had chosen

one view which is just and reasonable, then also this Court would be reluctant

to interfere with the judgment of the High Court. With these principles in

mind, we have carefully considered the evidence of the prosecution.

The Sessions Judge relied on various items of evidence to prove that

there was a deep-rooted conspiracy among the accused to murder the

deceased Shankar Guha Niyogi. In order to prove the conspiracy, the

Sessions Judge relied on certain circumstances. One of the circumstance

relied is that A-1, A-4, A-5 and A-7 had a strong motive to do away with

deceased Shankar Guha Niyogi. Motive by itself is not sufficient to prove the

guilt of the accused. However, the prosecution adduced extensive evidence

to show that A-1, A-4, A-5 and A-7, were owners of certain industries at Durg

and the trade union activities of deceased Niyogi created a lot of problems in

running their business and caused loss to these industries. M/s Simplex is

one of the factories referred to by the witnesses for the prosecution. Several

witnesses were examined to prove that Simplex and Kedia Distilleries were

acting against the interests of the workers and there were series of agitations

by the workers against the factory owners. Evidence was also adduced to

show that some workers were retrenched from Simplex and the agitating

workers wanted the reinstatement of the retrenched workers. Some of the

witnesses examined by the prosecution turned hostile and did not support this

version. The overall evidence given by the prosecution would only show that

some agitation had been going on against the management of these industries

and the deceased Niyogi was spearheading many of these agitations. This by

itself would not prove the prosecution case of conspiracy.

Another item of evidence is the recovery of a diary allegedly maintained

by deceased Niyogi. The diary of Niyogi was marked Exh. P-93. In the diary,

Niyogi had written that industrialists like Simplex/Kedia along with higher

officials of Durg district had formed a fascist gang and that the sad thing was

that the judiciary of Durg and Rajnanadagaon districts had also joined this gang.

On page 172 of the diary, he had written the names of A-2, A-3. In a micro

cassette produced as Article 'C', deceased Shankar Guha Niyogi had recorded

a speech wherein he mentioned that he apprehended a danger at the hands of

some persons and he also said that people of Simplex were indulging in

mischief and in particular the fifth respondent Moolchand Shah. The name

of A-2 was also mentioned in the diary. That apart, deceased Shankar Guha

Niyogi submitted a memorandum to the President of India. In this

memorandum he has stated elaborately the grievances of the workers and

emphasized that the industrialists had been doing their utmost to break the

workers organization and they had even resorted to physical violence on

workers. He alleged that police personnel were helping the industrialists and

he appealed to the President to bring a check on these acts of violence by

industrialists.

The entries in the diary and certain statements of the deceased

recorded on a micro cassette were sought to be made admissible as

evidence under Section 32 of the Evidence Act. Section 32 of the Evidence

Act says that the statement, written or oral, of relevant facts made by a

person who is dead, are themselves relevant facts, but this statement should

have been made as to the cause of his death or as to any of the circumstances

of the transaction which resulted in his death when such question comes up

for consideration by the court. It is true that when such statements were

made, the maker of the statement need not be under the expectation of

death. But nevertheless, these statements should give either the cause of his

death or any of the circumstance which led to his death.

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The entries in the diary and the representation Niyogi had submitted to

the President of India were in general terms. He apprehended some danger at

the hands of some industrialists as the agitation of the workers had been

going on and in some instances the henchmen of the industrialists had

unleashed physical violence on the workers. Even though he had mentioned

the names of some of the accused persons in the diary and in the cassette, that

by itself may not be of any assistance to the prosecution to prove the case as

the entries in the diary and cassette do not refer to any event which ultimately

was the cause of his death.

Another item of evidence strongly relied on by the prosecution to prove

the case of conspiracy is that some of the accused persons had visited Nepal,

which, according to the prosecution, was to procure some illegal weapons to

carry out the common object of the conspiracy. PW-91 Ravinder Kumar

Mende @ Ravi deposed that the first accused Chander Kant Shah made the

programme of going to Nepal in a tempo truck and the first accused along with

A-4 Abhay Kumar Singh and A-3 Avdhesh Rai went to Nepal via Banaras.

On the way, they stayed at Khalispur and reached Nepal on the next day and

stayed at Hotel Kailash. The second accused Gyan Prakash Misra reached

there after two days. The second accused when questioned under Section

313 Cr.P.C. admitted that they had gone to Nepal on a pilgrimage. The

prosecution, when conducted a search at the residence of A-1 Chandrakant

Shah recovered certain articles. Some of the old bills were recovered and on

the reverse side of a bill marked as Exh. P-393 (8) issued on 12.11.91 by a

provision store in Nepal, certain entries have been made in respect of some

foreign-made firearms. These entries were in the hand writing of the second

accused Gyan Prakash Misra. The price of the weapons also is mentioned.

The Sessions court assumed that these accused must have procured some

weapons during their visit to Nepal. These entries in Exh. P393(8) by itself

do not prove that fact. No bills proving purchase of foreign-made weapons

were recovered from any of these accused persons. The visit to Nepal was in

March, 1991. This, according to the Sessions Judge was part of the

conspiracy and not a pilgrimage as the first accused had not gone with the

members of his family. The visit to Nepal by these accused persons and the

recovery of a bill do not advance the prosecution case to prove criminal

conspiracy alleged against them.

The other items relied on by the prosecution to prove the case against

the accused are the various recoveries effected by the investigating agency,

but none of these items would prove the involvement of these accused in the

conspiracy. These items would include Exh. P-239 recovered from the office

of the first accused. In Exp. P-239 slip, the registration number of the car

which was being used by deceased Niyogi and also the registration number of

a jeep registered in the name of Chattishgarh Mukti Morcha were written.

This according to the prosecution would show that the accused were watching

the movements of deceased Niyogi. We are not able to attach any further

importance to these documents.

Another document is Ex-P-298, which is a letter alleged to have been

written by the second accused to the sixth accused indicating that he had

received Rs.20,000/- for the work he had done. The recovery of this letter by

the investigating officer is surrounded in mystery. It is alleged that it was found

in torn pieces and this letter is alleged to have been recovered on 15.12.1991

by the investigating officer when a search was conducted in the office of the first

accused. The case of the prosecution is that the money transaction indicated

in Exh. P-298 is the consideration given to the second accused for having

caused the death of deceased Niyogi. PW-158 Devendra Jain was alleged to

be the person who delivered this letter to the first accused, but he turned

hostile and did not support the prosecution. Even if the letter is assumed to be

true, it would only show that there was some money transaction between the

second accused and the sixth accused and in no way it is proved that the

amount of Rs.20,000/- alleged to have passed between the parties was in

consideration of the illegal act carried out at the instance of the second

accused. The High Court was justified in not relying on this document.

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The prosecution relied on the arrangement of granting the contract for a

cycle stand in the cinema theatre, by name Maurya Talkies. PW-102

Kamaluddin was examined to prove this fact. He deposed that the contract

was taken in the name of A-3 Avdhesh Rai and the income from the cycle

stand was deposited in the Syndicate Bank in the account of the second

accused Gyan Prakash Mishra. This, according to the prosecution, was an

arrangement made at the instance of A-8 Baldev Singh Sandhu. PW-102 does

not know anything about the nature of this transaction and there is no other

evidence, oral or documentary, to show that the contract of the cycle stand at

Maurya Talkies has got anything to do with the murder of the deceased

Shankar Guha Niyogi.

The fact that some of these accused had absconded from the place of

their business at the relevant time is also pointed out by the counsel for the

appellant as an incriminating circumstance. When the murder of a trade

union leader took place, there were strong allegations that the industrialists in

the area had been instrumental in causing his death. Under those

circumstances, if any of these accused had absconded from the place, it could

not be said to be a factor to prove their guilt.

Another incriminating circumstance sought to be proved against the

accused is the extra-judicial confession alleged to have been made by the

ninth accused Paltan Mallah wherein he named A-1, A-2, A-5 and A-6. It is

alleged that he made the confession to PW-105 Satyaprakash Nishad and A-9

is alleged to have disclosed to PW-105 that these accused persons had given

him money and he murdered Shankar Guha Niyogi for the sake of money.

Under Section 30 of the Evidence Act, the extra-judicial confession made by a

co-accused could be admitted in evidence only as a corroborative piece of

evidence. In the absence of any substantive evidence against these accused

persons, the extra-judicial confession allegedly made by the ninth accused

loses its significance and there cannot be any conviction based on such extra-

judicial confession. The High Court, in our view, has given cogent and

satisfying reasons for the acquittal of the accused A-1 to A-8. We do not find

any reason to interfere with such a finding, especially when this being an

appeal against acquittal and this Court would be slow in reversing such a

finding unless the High Court had made a perverse or erroneous appreciation

of the evidence resulting in grave miscarriage of justice. The evidence

adduced by the prosecution can only throw some serious suspicion against

these accused which cannot be used as a substitute for evidence.

Now we come to the question of the complicity of the ninth accused

Paltan Mallah. His case stands on a entirely different footing. There is

evidence against this accused and the High Court brushed aside the

prosecution evidence against him on flimsy reasons. There are several items

of evidence to show that the ninth accused and none else caused the death of

Shankar Guha Niyogi. This accused is a person hailing from Gorakhpur in

the State of Uttar Pradesh. He had come to Bhilai and was engaged in petty

jobs. He had been involved in a series of criminal cases and happened to be

in custody for some period.

PW-63 who was the sub-jailor at Durg jail for the period 1988 to 1992

deposed that the ninth accused Paltan Mallah was lodged as an under-trial

prisoner at Durg jail from 1995 to 1998. The second accused Gyan Prakash

Mishra and the third accused Avdhesh Rai were also under-trial prisoners in

Durg jail during this period. Accused Paltan Mallah had involved himself in

several criminal cases registered for offences punishable under Section 457,

380, 370, 394 IPC and Section 25 of the Arms Act. He was also involved in

another case registered under Section 353, 307, 397, 341, 294, 506-B, 323

IPC and Section 25 of the Arms Act and he was lodged as a prisoner from

1.3.1988 to 10.8.1988 in Durg jail. PW-121 is a photographer who deposed

that in the beginning of 1991, he had taken photograph of a prisoner and he

identified the Exh. P-318 photograph . This photograph is admittedly that of

the ninth accused Paltan Mallah.

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The High Court in the impugned judgment stated that there is absolutely

no evidence to show that Paltan Mallah could have been at Bhilai during the

relevant period. In a murder that took place during night, there would not be

any direct evidence to prove the fact, but various circumstances would show

that the ninth accused was in Bhilai during 1991. This accused was staying

with PW-51 Reshami Bai. She deposed that accused Paltan Mallah had gone

to Bombay and this evidence was erroneously taken into consideration by the

High Court. It is common knowledge that the wife of an accused, leave

aside the exceptional cases, would always give evidence only to support the

husband.

There is also evidence of PW-66 Nuruuddin. PW-66 is running an arms

shop at Sadar Bazar in Raipur. He deposed that on 14.9.1991 one Birendra

Kumar came to his shop along with a boy to purchase certain material. He

showed his licence and expressed his intention to purchase a gun. He told him

that he was acquainted with a person who was an expert in firearms. He then

left the boy in the shop to fetch that armourer. After 15-20 minutes, Birendra

Kumar came with PW-59 Rajbahadur who selected a twelve bore gun of

single barrel and entries were made in the register. He deposed that Birendra

Kumar purchased five cartridges along with the gun and few L.G. cartridges

by using the licence of a person, by name, Satya Narayan Singh. PW-66

deposed that all along the boy was sitting in his shop and he identified the boy

as the ninth accused Paltan Mallah. He further stated that the CBI officials

came and questioned him and showed him the photograph of that boy. This

witness identified the ninth accused Paltan Mallah in the court.

The counsel for the accused vehemently attacked the evidence of PW-

66. It was submitted that going by the evidence of PW-75, P-61 Jakruddin

and PW-72 Jainarayan Tripathi, the accused Paltan Mallah could not have

been present in the shop and that those who were in the shop were

Birendra Kumar, PW-59 Rajbahadur and the father of PW-59. According

to PW-61, he had sold 13 cartridges to Satyanarayan Singh and Birendra

Kumar had signed in the register. PW-59 Rajbahadur deposed that he is an

armourer in the police department. He deposed that Ram Bahadur, a police

constable told him that his son had taken a licence and he wanted to purchase

a gun. Rajbahadur and his son went to the shop of PW-61 for purchasing a

gun. Based on the evidence of PW-59, PW-61 and PW-72 it was stated that

the ninth accused Paltan Mallah could not have been in the shop of PW-61,

but in the face of the evidence of PW-66, we do not think that there was any

mistake as to the identity of Paltan Mallah. Of course, the fact that the

prosecution wanted to prove further that the L.G. cartridges were passed on to

these accused and the same were used in the commission of the crime is not

proved by any direct evidence. PW-66 appears to be an independent reliable

witness and from his evidence, it is clear that the accused was at Bhilai during

the relevant period. It is also proved by satisfactory evidence that the

accused Paltan Mallah had been involved in cases relating to illegal use of

arms.

The next evidence against the ninth accused came to surface in 1993

at the time of his arrest by an air-force officer alleging that he was in illegal

possession of certain firearms. The air-force officer handed over the ninth

accused to PW-125, who was a sub-inspector at the Rudrapur police station.

On questioning Paltan Mallah, PW-125 came to know that he had been

involved in the murder of Shankar Guha Niyogi. He informed the CBI officials

and recorded the confession made by Paltan Mallah. Based on the

confession given by accused Paltan Mallah, certain recoveries were effected.

Based on the information furnished by him, PW-125 along with PW-104

Dinesh Baloni left for the village Nibahi and reached the place which

according to the prosecution was the house of the accused Paltan Mallah.

Another witness Farukh Mirza Baig accompanied them. This witness is a

resident of Nibahi. The accused pointed out that near the northern wall of the

house he had buried certain articles. The accused Paltan Mallah removed the

earth, took out a bundle wrapped in a plastic sheet. The bundle contained a

country-made pistol with 13 cartridges, 2 L.G. cartridges and others were

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.38 bore cartridges. PW-125 recovered these articles and in the seizure

memo, Dinesh Baloni, one Ram Bahadur and Farukh Mirza Baig and the

accused had signed. From there, they left and reached the house of PW-

105, Satyaprakash Nishad, in village Chainpur, where the accused had hidden

his TVS Suzuki motorcycle. The motorcycle was recovered and there was no

number plate on the motorcycle.

The recovery of the country-made pistol at the instance of the accused

Paltan Mallah was seriously challenged on various grounds. It was contended

by the counsel that the recovery of the weapon was not effected in accordance

with law and the witness PW-104 Dinesh Baloni was not a resident of the

village Nibahi and that he was brought from a different place only for the

purpose. It was argued that as recovery was not effected in accordance with

law, the entire evidence is inadmissible as the search itself is illegal. The

counsel further contended that the recovery of weapons at the instance of the

accused Paltan Mallah is not admissible in evidence as the disclosure

statement marked Exh. P-285 would only show that the accused had the

knowledge of the concealment of the weapon and that he was not the author

of that concealment. Counsel for the accused Paltan Mallah placed reliance

on two decisions, namely, (1976) 1 SCC 828 Mohmed Inayatullah vs. State

of Maharashtra and (1980) 1 SCC 530 Pohalya Motya Valvi vs. State of

Maharashtra. The above two decisions are not relevant in this case as in

the Exp. P-285 the accused specifically says that he concealed the weapon

himself. As the alleged confession clearly states that the accused himself has

concealed it, the recovery of the weapon assumes importance in this case.

The counsel for the respondent-accused further contended that PW-125

was not investigating the case of accused Paltan Mallah and that the custody

of the accused Paltan Mallah was entrusted to him alleging that he had

unlawfully trespassed into the prohibited area belonging to Air Force and PW-

125 could have conducted investigation of that case only and if at all he had

come to know of the involvement of the accused in other cases, he should

have contacted the CBI and informed them of the alleged concealment of

weapon. It was pointed out that the CBI officers had reached that place and

met PW-125 even before he went with the accused Paltan Mallah for the

alleged search and seizure. The counsel submitted that the search and

seizure was completely illegal and therefore the evidence obtained under such

illegal search is to be completely excluded. The plea of the appellant cannot

be accepted.

In India, the evidence obtained under illegal search is not completely

excluded unless it has caused serious prejudice to the accused. The discretion

has always been given to the court to decide whether such evidence is to be

accepted or not. In Radha Krishan vs. State of U.P. AIR 1963 SC 822,

speaking for a three Judge Bench, Justice Mudholkar held :

"So far as the alleged illegality of the search is concerned, it is

sufficient to say that even assuming that the search was illegal

and the seizure of the articles is not vitiated. It may be that

where the provisions of Sections 103 and 165 of the Code of

Criminal Procedure are contravened the search could be resisted

by the person whose premises are being searched. It may also

be that because of the illegality of the search the Court may be

inclined to examine carefully the evidence regarding the seizure.

But beyond these two consequences, no further consequence

ensues."

In a subsequent decision reported in Pooran Mal vs. Director of

Inspection (1974) 1 SCC 354, this Court held :

"So far as India is concerned its law of evidence is modeled on

the rules of evidence which prevailed in English Law, and Courts

in India and in England have consistently refused to exclude

relevant evidence merely on the ground that it is obtained by

illegal search or seizure\005. It would thus be seen that in India, as

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in England, where the test of admissibility of evidence lies in

relevancy, unless there is an express or necessarily implied

prohibition in the Constitution or other law, evidence obtained as a

result of illegal search or seizure is not liable to shut out."

This decision was later followed in Dr. Pratap Singh vs. Director of

Enforcement (1985) 3 SCC 72.

The provisions contained in the Criminal Procedure Code relating to

search and seizure are safeguards to prevent the clandestine use of powers

conferred on the law enforcing authorities. They are powers incidental to the

conduct of investigation and the legislature has imposed certain conditions for

carrying out search and seizure in the Code. The courts have interpreted

these provisions in different ways. One view is that disregard to the provisions

of the Code of Criminal Procedure relating to the powers of search and

seizures amounts to a default in doing what is enjoined by law and in order to

prevent default in compliance with the provisions of the Code, the courts

should take strict view of the matter and reject the evidence adduced on the

basis of such illegal search. But often this creates a serious difficulty in the

matter of proof. Though different High Courts have taken different views, the

decisions of this Court quoted above have settled the position and we have

followed the English decisions in this regard. In the Privy Council decision in

Kuruma v. The Queen (1955) A.C. 197, Lord Goddard, C.J. was of the firm

view that in a criminal case the Judge always has a discretion to disallow

evidence if the strict rule of admissibility would operate unfairly against an

accused. The trend of judicial pronouncements is to the effect that evidence

illegally or improperly obtained is not per se inadmissible. If the violation

committed by the investigating authority is of serious nature and causes

serious prejudice to the accused, such evidence may be excluded.

It may also be noticed that the Law Commission of India in the 94th

Report suggested the incorporation of a provision in Chapter 10 of the Indian

Evidence Act, 1872. The suggestion was to the effect that in a criminal

proceeding, where it is shown that anything in evidence was obtained by

illegal or improper means, the court, after considering the nature of the illegality

or impropriety and all the circumstances under which the thing tendered was

obtained, may refuse to admit it in evidence, if the court is of the opinion that

because of the nature of the illegal or improper means by which it was

obtained, its admission would tend to bring the administration of justice into

disrepute. The Commission also quoted the various circumstances

surrounding the proceedings that may entail the exclusion of such evidence

but the suggestion of the Law Commission was not accepted and no legislation

was effected in line with the recommendations of the 94th Report of the Law

Commission and the position continues to be that the evidence obtained under

illegal search could still be admitted in evidence provided there is no express

statutory violation or violation of the constitutional provisions. For example, if

certain specific enactments are made and the search or seizure is to be

effected in accordance with the provisions of such enactment, the authorities

shall comply with such provisions. The general provisions given in the

Criminal Procedure Code are to be treated as guidelines and if at all there is

any minor violation, still the court can accept the evidence and the courts

have got discretionary power to either accept it or reject it.

In the instant case, we do not think that the court has violated any

such provision merely because the witness was not from the same locality and

his evidence cannot be rejected.

The next important evidence against the respondent-accused Paltan

Mallah are the two extra-judicial confessions allegedly made by him to two

witnesses. The first is the confession the appellant is alleged to have made

to PW-105 Satyaprakash Nishad and the second to PW-124 Bishambhar

Prasad Sahni. PW-105 Satyaprakash Nishad is related to Paltan Mallah. He

deposed that in 1991 Paltan Mallah came to Chainpur village which is about

35-40 kms. away from his village at Nibahi. PW-105 deposed that Paltan

Mallah told him that he is involved in the murder of a leader and the CBI was in

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search of him and on further questioning he told the entire details. He gave

the names of other accused also and informed the witness that CBI had

announced Rupees one lakh as reward for his capture and therefore he wanted

to go to Nepal. The witness agreed to take him to Pohari Bazar where his

sister was married to one Keshnath Nishad. The witness further deposed that

he took Paltan Mallah to his brother-in-law who was working in the Railways,

but his brother-in-law said he could not hide Paltan Mallah. He had also given

evidence to the effect that Paltan Mallah left his motorcycle at his residence

and he later came to know that in August, 1993 Paltan Mallah was caught by

the police. The evidence of this witness was seriously challenged in cross-

examination. He was extensively cross-examined and a perusal of his cross-

examination would show that the witness could withstand the cross-examination

successfully. His evidence is to be appreciated in the light of the evidence of

PW-124 and also the recovery of the motorcycle from the premises of the

witness. The evidence of PW-124 fully supports the evidence of PW-105.

PW-124 Bishambhar Prasad Sahni was the headmaster of a school during the

relevant time and he was working in the Higher Secondary School of Navalparsi

since 1976. He is a post-graduate from Tribhuvan University and his relatives

are in village Kusha (U.P.). PW-124 deposed that accused Paltan Mallah

came to his house along with Keshnath, the brother-in-law of PW-105. They

came in the evening and on the next morning he asked Paltan Mallah about the

purpose of his visit. Then Keshnath told that Paltan Mallah was a distant

relative of his brother-in-law and that he should get some safe place for him in

Nepal. The witness asked why he wanted to stay in Nepal and Paltan Mallah

had a detailed discussion and he revealed that he had murdered Shankar

Guha Niyogi in complicity with Gyan Prakash Mishra. The witness deposed

that he got agitated and angry and scolded his brother-in-law Keshnath and

asked them to leave the place immediately. The statement of PW-124 was

recorded in 1993, but in the cross-examination, he mistakenly stated that CBI

officers had come there fifteen days after the departure of Paltan Mallah. This

evidently is a mistake and for this sole reason the evidence of this witness was

discarded. The extra-judicial confession made by the accused Paltan Mallah

to PW-124 is unimpeachable. PW-124 is a headmaster of a school who had

no axe to grind against the accused and he was working at a far distant place

and the CBI must have come to know of the alleged extra-judicial confession

made on the basis of questioning the accused. The questioning of PW-124 by

police was in 1993. The extra-judicial confession implicating the second

accused Gyan Prakash Mishra is not strictly admissible as it is a confession

made by a co-accused and could be used only as a supporting evidence.

Though the evidence as such cannot be used against Gyan Prakash Mishra,

the extra-judicial confession revealed by PW-124 Bishambhar Prasad Sahni is

reliable and trustworthy and fully supported by the evidence of PW-125 and we

find no reason to discard the same.

Then the most important item of evidence against the accused, Paltan

Mallah, is the report of the ballistic expert. PW-192, the Deputy

Superintendent of Police of the CBI deposed that after the arrest of the

appellant Paltan Mallah on 25.8.1993, he recovered one 12 bore country-made

pistol, 13 live cartridges 12 bore, one foreign made pistol, 6 live cartridges of

.38 bore and a motorcycle. The country-made pistol, the foreign made pistol

and the cartridges were sent for examination by the ballistic expert to the

Central Forensic & Science Laboratory, New Delhi. During the post-mortem

of the deceased Shankar Guha Niyogi, three pellets were extricated from his

body. These pellets were sent to Forensic Laboratory at Sagar and thereafter

they were deposited in the court by PW-192 and these pellets were also later

on obtained from the court and sent for examination by the CFSL. PW-159,

the ballistic expert conducted detailed laboratory test-fires and microscopic

examination and he gave Exh.P-398 report wherein he opined that three lead

pellets marked P-1 to P-3 must have been fired from a 12 bore country-made

pistol. He deposed that he had prepared the report on the basis of the

microscopic examination and he had also taken photographs of the pellets and

Exh. P-398 are the work-sheets of the report prepared by him.

The evidence of PW-159 and his report are seriously challenged by the

counsel for the respondent accused. He extensively referred to the text books

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written by foreign ballistic experts such as Burrad, Hatcher and Taylor. It was

argued that in the instant case, the weapon was a country-made pistol and the

barrel was not grooved and there was absolutely no question of any

identifiable marking coming on the pellets to enable the expert to give any

opinion whatsoever. Reliance was placed by him on the observations of this

Court in Ram Avtar and Others Vs. Ram Dhani and Others (1997) 2 SCC 263

wherein this Court relied on the opinion of J.S. Hatcher in his text book of Fire

Arms & Investigation to the effect that "unless there were rifling marks in the

bullets which were not defaced by the entry in the bodies of the victims, no

expert can ordinarily and generally give an opinion." It was also pointed out

that in the case of country-made pistol, it was difficult to assume that the

ballistic expert could have found identifying marks on the pellets. The

evidence given by the ballistic expert was questioned in great detail. He was

cross-examined extensively by counsel for all the accused. He deposed in

the cross-examination that when these pellets are fired, then they among

themselves would press each other inside the barrel [on inside parts] their

effect could be on one side of inner side of barrel, they will take special

individual mark on them and these marks will be in the form of a line on the

pellets and if the barrel is tight then pellets will be more rubbed, and on more

parts, lines will come. If barrel is tight then half part of the pellets are

pressed and the barrel was nicely tight and the witness himself said that in the

test fire which he did on all of the six pellets good marks of barrel had come.

He had also stated that he had taken micro-photograph of only one pellet and

had compared all pellets but he had not made any separate comparative

record or photograph.

It was argued that micro-photographs were not produced and mere

observation by the expert was not sufficient and that he should have

produced these photographs. We do not think that there was any such

necessity to produce the micro photographs when the expert has given

convincing reasons to support his opinion. This Court in Ramanathan vs.

State of Tamil Nadu [1978] 3 SCC 86 held that the production of such

photographs is not necessary and such a plea was rejected. In paragraph 26,

it was held as under :

"It is true that there has been considerable difference of opinion

amongst investigators regarding the use of photographs in a court

for the purpose of illustrating the matching of the markings, and

while it may be that microscopic photographs, when taken with

due care and in the best of conditions, may enable the evidence

to be placed on the record in a visible form, it cannot be denied

that a court would not be justified in rejecting the opinion of an

expert who has examined the markings under the comparison

microscope simply for the reason that he has not thought it

necessary to take the photographs. It is therefore not possible

for us to reject the evidence of Ramiah (PW 23) who has

categorically stated that he had compared the land and groove

markings on the bullets under a comparison microscope, simply

because he did not think it necessary to take the photographs."

In the case of the respondent-accused Paltan Mallah, there is

overwhelming evidence to prove his complicity in the crime. The recovery of

the country-made pistol at his instance, which is proved to have been used for

causing the death of Shankar Guha Niyogi; and the evidence of the ballistic

expert coupled with two extra-judicial confessions made to PW-105 and PW-

124 support the prosecution case fully. There is also prosecution evidence to

the effect that the accused had got accessibility to the weapons and that he

was staying at the place of occurrence and doing various jobs. It is also

established that accused Paltan Mallah is involved in other offences relating to

fire-arms. Though there is no direct and convincing evidence against other

accused, the case against Paltan Mallah is proved beyond reasonable doubt.

He was acquitted by the High Court on fanciful reasons. The evidence of

extra-judicial confessions was rejected without any valid reasons. The report of

the ballistic expert also was not appreciated in the correct perspective by the

High Court. In our view, the Division Bench seriously erred in acquitting the

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respondent-accused Paltan Mallah.

In the result, we reverse the acquittal of the respondent-accused Paltan

Mallah. The incident leading to these appeals had taken place as early as

1991. As there is a long lapse of time, we do not think that the sentence of

death imposed upon him by the Sessions Court is justified in the circumstances.

We set aside the acquittal of respondent-accused Paltan Mallah and find him

guilty of the offence punishable under Section 302 IPC and sentence him to

undergo imprisonment for life.

The appeals preferred by the State and also by the Chhatishgarh Mukti

Morcha are allowed to the extent indicated above. All other appeals shall

stand dismissed. The acquittal of other accused by the High Court is

confirmed.