TMI Blog2005 (1) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... tive, 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. 2. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... octors and they opined that death was due to bullet injuries. 3. 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. 4. PW-187 R.S. Dhankad took over the investigation along with PW 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prehended 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. 13. 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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. 16. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 20. 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, 304B, 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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-66, 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. 24. 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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. 27. 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 respondent cannot be accepted. 28. In India, the evidence obtained un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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. 32. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icated 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. 36. 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 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 observati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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. 38. 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 dire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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