Chandramauli Kr. Prasad and Rekha Kumari, JJ.
1. Sheikh Samsul and Sheikh Asfaque were charged for intentionally committing murder of Md. Askari punishable under Section 302 of the Indian Penal Code. Sheikh Gayas was charged for committing murder by intentionally causing death of Md. Asad, punishable under Section 302 of the Indian Penal Code. Besides the aforesaid, they have also been charged for offence under Section 3 and 4 of the Explosive Substance Act. Aforesaid three persons along with six other persons, namely, Sheikh Chengwa, Sheikh Kalim @ Gedhwa, Sheikh Juman, Sheikh Aziz, Sheikh Ishteyaque and Sheikh Nayeem have been charged for committing the murders of Md. Askari and Md. Asad in prosecution of common object as a member of unlawful assembly punishable under Section 302/149 of the Indian Penal Code. In addition thereto, Sheikh Kalim, Sheikh Juman, Sheikh Aziz, Sheikh Ishteyaquye and Sheikh Nayeem have been charged for possessing arms for unlawful purposes, punishable under Section 27 of the Arms Act. Sheikh Aziz, Sheikh Kalim @ Gedhwa, Sheikh Juman, Sheikh Nayeem /.-- and Sheikh Ishteyaque have been held guilty of offence under Section 302/149 of the Indian Penal Code and Section 27 of the Arms Act by judgment and order dated 4th of February, 2003 and 18th of February 2003 passed by the Ist Additional Sessions Judge, Bhagalpur in Sessions Trial No. 309/22 of 1993/1999. Aforesaid persons have been sentenced to undergo rigorous imprisonment for life under Section 302/149 of the India Penal Code and rigorous imprisonment for three years under Section 27 of the Arms Act. By the said judgment, Sheikh Gayas, Sheikh Asfak and Sheikh Samsul have been held guilty of offence under Section 302 of the Indian Penal Code and Section 3/4 of the Explosive Substance Act. Sheikh Gayas and Sheikh Samsul have been awarded death sentence for offence under Section 302 of the Indian Penal Code, whereas Sheikh Asfak has been awarded rigorous imprisonment for life on that count. All of them have been sentenced to undergo rigorous imprisonment for ten years for offence under Section 3/4 of the Explosive Substance Act. Sheikh Chengwa who has been held guilty under Section 302/149 of the Indian Penal Code and Section 3/4 of the Explosive Substance Act has been awarded life imprisonment and rigorous imprisonment for ten years for the aforesaid offence respectively.
2. As death sentence has been awarded to Sheikh Gayas and Sheikh Samsul, the learned Judge, has submitted the proceeding to this Court for confirmation of the death sentence under Section 366 of the Code of Criminal Procedure, which has been registered as Death Reference No. 2 of 2003.
3. Sheikh Samsul and Sheikh Gayas, aggrieved by their conviction and sentence, have also preferred separate appeals which have been registered as Cr. Appeal Nos. 124/2003 and 125/2003. Appeal of Sheikh Ishteyaque and Sheikh Kalim has been registered as Cr. Appeal No. 92 of 2003, whereas appeal of Sheikh Nayeem has been registered as Cr. Appeal 98 of 2003. Cr. Appeal No. 122 of 2003 pertains to Sheikh Juman and Sheikh Aziz and appeal preferred by Sheikh Chengwa has given rise to Cr. Appeal No. 123 of 2003. Appeal of Sheikh Asfak has been registered as Cr. Appeal No. 126 of 2003.
4. All the appeals and Death Reference have been heard together and are being disposed of by this common judgment.
All the convicts hereinafter shall be referred to as the appellants.
5. Prosecution commenced on the basis of a fardbyan given by P.W.14 Md. Maksood on 19.1.1991 at 10 P.M. in Village Khaira before the Sub Inspector of Shahkund Police Station, namely, S.P. Singh (P.W.5). According to the First Information Report, at about 6 P.M. on 19.1.1991, Md. Askari was engaged in his grocery shop, whereas the informant was talking to his co-villager. Md. Zakiruddin (P.W.5), Md. Vasir (P.W.1), Md. Salauddin (P.W. (10), Md. Naim (P.W.4) and others near the shop. In the meantime, four of the appellants, namely, Sheikh Samsul, Sheikh Asfak, Sheikh Chengwa and Sheikh Gayas came armed with bombs, whereas five appellants, namely, Sheikh Kalim, Shiekh Juman, Shiekh Aziz, Sheikh Ishteyaque and Sheikh Nayeem came armed with guns from the northern side of the village and entered into the shop of Md. Askari. Appellant Sheikh Samsul threw bomb which hit on his chest. Sustaining the bomb injury, Askari fell down on the Gaddi of the shop itself and in the mean while, appellant Sheikh Asfak also attacked him by bomb on his chest, which hit him and exploded. Due to the injury sustained by him Askari died at the Gaddi itself.
6. Informant's nephew Md. Asad, according to the First Information Report, who was in flour mill just opposite the shop of Askari, came running to the shop after hearing the sound of explosion, who was attacked by bomb by appellant Gayas and due to the explosion, he sustained severe injury and fell down near the shop and became unconscious. Md. Vasir (P.W.1) who was standing there also got injured. On hearing the sound of bomb explosion, villagers assembled there and the appellants fled away towards north. Injured Md. Askari was taken to Bhagalpur hospitals by the villagers in critical condition. Md. Asad died on the same day at the Hospital.
7. Motive of the occurrence, according to the First Information Report, is that two years prior to the occurrence, a case under Section 307 of the Indian Penal Code was filed against the appellants and they were threatening to withdraw the case, otherwise to eliminate them.
8. On the basis of the aforesid information Shahkund P.S. Case No. 9 of 1991 was registered under Sections 302, 326 and 307/34 of the Indian Penal Code, Section 3/4 of the Explosive Substance Act and Section 27 of the Arms act.
9. Police, after usual investigation, submitted charge sheet against the appellants and ultimately committed to the Court of Sessions to face the trial, where they were charged for committing the offence as detailed above.
10. Appellants pleaded not guilty and claimed to be tried.
11. Prosecution, in support of its case, has altogether examined seventeen witnesses, out of whom, P.W.1 Md. Vasir, P.W.2 Md. Aslam, and P.W.10 Md. Salauddin have been declared hostile by the prosecution and cross-examined. P.W.3 S.K. Sajid, P.W.6 Md. Afzal, P.W.7 Salamul Ansari, P.W.8 Jainul Abdin and P.W.16 Ram Bahadur Kshetriya do not claim to be eye witnesses to the occurrence, but have been examined to corroborate the case of the prosecution. P.W.4 Md. Naim, P.W.5 Md. Jakiruddin, P.W.9 Md. Rajjak and P.W.14 Md. Maksood claim to be the eye witnesses to the occurrence. P.W.14 Md. Maksood happens to be the informant of the case. P.W.11 Md. Sohail Ahmad and P.W.12 Md. Mahboob Alam are witnesses to the Inquest Report and have proved the same. P.W.17 Ajay Kumar Singh is another formal witness who has proved the sanction order for prosecution of the appellants. P.W.13 Dr. H.I. Ansari is the Medical Officer, who had conducted the Post Mortem Examination on the dead body of the two deceased. P.W.15 Shankar Dayal Singh is the Investigating Officer of the case.
12. Defence of the appellants is denial simplicitor and they have pleaded false implication. From the trend of cross-examination, their defence seems to be that they have been falsely implicated in the case on account of previous enmity. Specific defence of appellant Sheikh Kaleem and Sheikh Gayas is that they were witnesses in Afaq murder case in which Md. Maksood (P.W.14), Md. Nayeem (P.W.4) and S.K. Sajid (P.W.3) were accused and held guilty and on account thereof, they have been falsely implicated in the case. According to appellant Sheikh Chengwa, his brother Afaq was murdered by the aforesaid witnesses as also Asad, the deceased in the present case and on account thereof he has been falseley implicated in the case.
13. Appellant Sheikh Samsul pleaded alibi and stated that he had been out side the village on the date of the occurrence and has been implicated in the case due to enmity. However, no defence witness has been examined.
14. P.W.1 Md. Vasir has although been declared hostile, but has stated in his evidence that a bomb had exploded when he was at the shop of Askari and he and Askari sustained injury due to explosion of bomb. According to his evidence, Askari died inside the shop itself. He did not disclose the names of the assailants and hence, declared hostile by the prosecution and cross-examined. In the cross-examination, he has stated that the bomb exploded all of a sudden causing heavy smoke which lasted for long time and none had seen who and from which side the bombs were was hurled. He admitted to have undergone treatment.
15. P.W.2 Md. As lam has been declared hostile by the prosecution. He did not know anything about the occurrence and denied to have given any statement before the police, during the course of investigation.
16. P.W.3 S.K. Sajid happens to be the father of the deceased Md. Asad. According to him, on the date of occurrence at about 6 P.M. while he was going towards his shop, heard the sound of bomb explosion and came running at the shop of his nephew, namely, Askari. He saw all the appellants fleeing away from there. He found his nephew lying dead and his son unconscious in injured condition. With the help of P.W.2 Md. Aslam and P.W.6 Md. Afjal and Ekram, carried his son on a cot to village Samastipur and from there, by bus to the Hospital at Bhagalpur. According to him while going by bus, his son Asad regained consciousness and on enquiry by him as to who had assaulted him, Asad replied that appellant Samsul and Asfak had hurled bomb on deceased Askari and appellant Gayas threw bomb on him. His son died in the Hospital before the doctor could attend to him.
17. In the cross-examination, he has stated that his brother P.W.14 Md. Maksood had filed a case under Section 307 of the Indian penal Code against the appellants which is pending for trial. Son of appellant Sheikh Samsul, according to this witness, was murdered before the occurrence, in which all his brothers, i.e. P.W.4 Md. Nayeem, P.W.5 Md. Jakiruddin and P.W.14 Md. Maksood are accused. He has admitted that appellants Sheikh Asfak, Sheikh Gayas, Sheikh Kalimuddin, Shiekh Juman and Sheikh Samsul are the witnesses in the said case. In his cross-examination, it has also come that the shop, where the occurrence had taken place, is at a distance of 100 yards east from his house.
18. He has denied the suggestion that he had not stated before the Police during the course of investigation to have seen the accused persons running away. In the cross-examination, he has reiterated that while his son Asad was disclosing the names of the assailants P.W.2 Md. Aslam, P.W.6 Md. Afjal and Ekram were present. He has also denied the suggestion that his son did not disclose the names of the assailants, while being taken to the Hospital.
19. P.W.6 Md. Afjal is another witness who does not claim to be an eye witness to the occurrence. He happens to be the co-brother (Sarhoo) of the informant. According to him, on hearing the sound of bomb explosion, he went to the shop of Askari and saw Md. Asad lying injured close to the shop and Askari lying dead at the Gaddi of the shop having injury on his chest. According to him, P.W.4 Md. Naim and P.W.14 Md. Maksood disclosed to him that appellants Shiekh Samsul and Sheikh Afaq had hurled bomb at Askari and Sheikh Gayas hurled bomb at Asad. P.W. 1 Md. Vasir was injured when appellant Sheikh Chengwa threw bomb at him. According to this witness, the aforesaid persons further disclosed that appellant Sheikh Juman, Sheikh Aziz, Sheikh Kalim, Sheikh Ishteyaque and Sheikh Nayeem were armed with gun and had fled away towards north firing shots. He along with P.W.3 Sheikh Sajid and P.W.2 Md. Aslam carried the injured Asad on a cot to Samastipur Bus Stand. There, Asad took water and all of them proceeded on bus to Bhagalpur for treatment. In the bus, Asad regained consciousness and on enquiry by his father, he disclosed that appellant Sheikh Samsul and Sheikh Asfak hurled bomb at Askari and appellant Sheikh Gayas hurled bomb at him. They reached Bhagalpur Hospital and some of them went to call the doctor, but before the arrival of the doctor, Asad died. He denied the suggestion that the fact of Asad regaining consciousness, taking water at Samastipur and disclosing the names of the appellants were not stated during the course of investigation.
20. P.W.7 Salamul Ansari is another witness who does not claim to be an eye witness to the occurrence. According to him, on hearing the sound of explosion, he went to the shop of Askari and found him lying dead at the Gaddi of the shop and Asad lying unconscious in injured condition. According to him, on arrival of the police, informant Md. Maksood disclosed that appellant Sheikh Samsul and Sheikh Asfak had hurled bomb at Askari and appellant Gayas hurled bomb at Asad, Sheikh Chengwa had hurled bomb on P.W.1 Md. Vasir, as a result whereof, he sustained injury in his foot. Thereafter, according to this witness, he along with P.W.9 Md. Rajjak chased the appellants and went to their houses. Appellant Sheikh Ishteyaque was apprehended and on search, empty cartridges were recovered from his lungi. A seizure list was prepared and he is a witness to the same.
21. In the cross-examination, he has admitted that he did not give any statement before the police that on being asked, informant Md. Maksood told that appellant Sheikh Chengwa had hurled bomb at P.W.1 Md. Vasir. He had admitted that he is not a witness to the occurrence.
22. P.W.8 Zainul Abdin also does not claim to be an eye witness to the occurrence. According to him, on hearing the bomb explosion, he came out from his shop and saw 8-9 persons fleeing away from there. Out of whom, he identified appellant Sheikh Samsul, Sheikh Asfak, Sheikh Chengwa, Sheikh Juman and Sheikh Ishteyaque fleeing away firing gun shots. He went to the shop of Askari and saw him lying dead in the shop. Asad was lying out side the shop in injured condition. On enquiry by this witness, P.W.14 Md. Maksood disclosed that appellant Samsul had hurled bomb at Askari, whereas appellant Sheikh Gayas threw bomb on Asad and appellant Sheikh Chengwa at P.W.1 Md. Vasir, as a result thereof, they received injuries. According to him, P.W.14 Sheikh Maksood also disclosed that he was surrounded by five appellants, namely, Sheikh Juman, Sheikh Aziz, Sheikh Kalim, Sheikh Ishteyaque and Sheikh Nayeem.
23. In the cross-examination, he has admitted that he had not seen anybody hurling bomb and the occurrence did not take place in his presence. Deceased Asad, according to his evidence in the cross-examination, was an accused in the murder case of the son of appellant Sheikh Samsul. He had denied the suggestion that in order to put pressure on the appellants and to save his son-in-law, accused in the murder case of the son of appellant Sheikh Samsul, he had falsely deposed in the case.
24. P.W.10 Md. Salauddin has been declared hostile by the prosecution. He has stated in his evidence that while he, P.W.14 Md. Maksood, P.W.4 Md. Naim, P.W.5 Md. Jakiruddin and P.W.1 Md. Vasir were talking at a distance of about 8-10 cubits east of the shop of Askari, 8-9 persons came there from north to whom, he could not identify. He denied to have given any statement before the police during the course of investigation.
25. P.W.11 Md. Sohail Ahmad and P.W.12 Md. Mahboob Alam are witnesses to the inquest and have proved their signatures on the Inquest Reports (Exts.2 and 3).
26. P.W.16 Ram Bahadur Kshetriya was posted at a Police Camp at Village Khaira, where the occurrence had taken place. According to him, he went to the shop of Askari on hearing alarm and found him dead inside the shop. On enquiry, villagers disclosed that appellants had fled away. Then he along with the police personnel, went in that direction and travelling a distance of 200 yards, apprehended appellant Sheikh Ishteyaque. On search, an empty cartridge concubed in the Lungi was recovered. He apprehended said appellant, brought him to the Camp and handed over him as also the cartridge to the Sub Inspector of Police. In the cross-examination, he has stated that the man apprehended was sitting in a hut like house situated at a distance of 200 yards from the place of occurrence.
27. P.W.17 Ajay Kumar Singh is another formal witness, who had proved the sanction order (Ext.12) granted for prosecution of the appellants.
28. Now, we refer to the evidence of the eye witnesses. It is relevant here to state that P.W.4 Md. Naim, P.W.5 Md. Jakiruddin, P.W.9 Md. Rajjak and P.W.14 Md. Maksood claim to be the eye witnesses to the occurrence, out of whom, P.Ws. 4, 5 and 14 happen to be own brothers.
29. P.W.4 Md. Naim has stated in his evidence that 5 cubits east of the place of occurrence, he along with his brothers, namely, P.W.5 Md. Jakiruddin, P.W.14 Md. Maksood, P.W.10 Md. Saluddin were standing and talking to each other. P.W.1 Md. Vasir also came there. In the meanwhile, all the appellants, excepting appellant Sheikh Naim, came there from the northern side. Appellants Sheikh Samsul, Sheikh Asfak, Sheikh Gayas and Sheikh Chengwa were carrying bombs, whereas four other appellants were armed with guns. Those appellants who were armed with guns, surrounded him and all other persons and appellant Sheikh Samsul and Sheikh Asfak, entered into the shop of his nephew Md. Askari. Appellant Sheikh Samsul hurled bomb at Md. Askari followed by Sheikh Asfak, which caused injury on his chest, as a result whereof, Askari died at the Gaddi itself.
30. On hearing bomb explosion, according to this witness, his another nephew, namely, Md. Asad (deceased), came there, when appellant Sheikh Gayas hurled bomb at him. Sustaining injury, he fell down at that very place. Thereafter, appellant Sheikh Chengwa hurled bomb causing injury in the foot of P.W.1 Md. Vasir. The motive of occurrence according to this witness, is that his brother Md. Maksood (P.W.14) had filed a case under Section 307 of the Indian Penal Code in the year 1998 against some of the appellants. They had threatened his brother and him to withdraw the case, otherwise, they would be eliminated. He identified all the appellants excepting appellant Md. Nayeem.
31. In the cross-examination, he has stated that son of the appellant Sheikh Samsul was murdered in which his three brothers are accused, which is pending for trial. He has also admitted that appellant, Sheikh Samsul, Sheikh Gayas, Sheikh Kalim, Sheikh Juman and Sheikh Asfak are the witnesses in the murder case. According to him, appellants came and surrounded him and other persons from all sides and only appellant Sheikh Samsul and Sheikh Asfak entered in the shop but not the other appellants. In the cross-examination, he has also disclosed that the appellants did not assault him or his two brothers but stopped them on the point of guns. According to this witness, the Sub Inspector of Police had seen the remnants of bomb at the spot. He has denied the suggestion that none of his three brothers were present at the time of occurrence and the occurrence had not taken place in the shop. He has also denied the suggestion that they had not seen any one committing the murder and for that reason, did not go to the Police Station to give information.
32. P.W.5 Md. Jakiruddin is another eye witness to the occurrence. According to him, on the date of occurrence at about 6 P.M. while he was talking to the witnesses Md. Maksood (P.W.14), Md. Naim (P.W.4), Md. Salauddin (P.W.10) and Md. Vasir (P.W.1), all of a sudden all the appellants came from the northern side and those armed with guns surrounded them. Appellants Sheikh Samsul and Sheikh Asfak entered into the shop of Askari and hurled bomb at him, which hit him on his chest and he died in the shop itself. On hearing the bomb explosion, his brother came out of the shop, but appellant Sheikh Gayas hurled bomb at Asad, as a result thereof, Asad also got injured. Thereafter, appellant Sheikh Chengwa threw bomb which caused injury in the foot of P.W.1 Md. Vasir. On hearing bomb explosion, according to this witness, the villagers collected and appellants fled away. Sheikh Sajid (P.W.3) father of Asad took him to Bhagalpur Hospital, but he died there. According to this witness, appellants had committed the offence because of previous enmity.
33. In the cross-examination, he has admitted that appellants Sheikh Samsul's son, namely, Asfak, was murdered in which Md. Maksood (P.W.14) Md. Naim (P.W.4) and S.K. Sajid (P.W.3) were made accused, but he is not an accused in that case. Said murder had taken place earlier than the present one. According to him, five appellants who were armed with guns had surrounded them from all sides for about 1-2 minutes. He has also stated that at the time of occurrence, Askari was only in the shop and excepting two appellants, none had entered into the shop. He denied the suggestion that all the nine appellants had entered into the shop. According to this witness, Asad was taken to Hospital after one and half minutes of sustaining the injury and none had gone to the Police Station to lodge the report. The Sub Inspector of Police came there from the Police Station at 10/11 P.M. At that time the dead body of Askari was in the shop itself. He has denied the suggestion that during the course of investigation, he did not disclose the names of the appellants.
34. P.W.9 Md. Rajjak does not claim to be an eye witness to the first part of the incident, but asserts to have seen Asad being assaulted. According to him, he was at the mill of Asad and on hearing the bomb explosion, Asad ran towards the shop of Askari which was across the road. He saw appellant Sheikh Gayas hurling bomb at Asad and appellant Chengwa also throwing one bomb. After commission of the offence, according to this witness, the assailants started fleeing away and out of then he identified all the appellants, excepting appellant Sheikh Nayeem. According to him, the police apprehended appellant Sheikh Ishteyaque, seized an empty cartridge from him and prepared seizure list to which he is a witness.
35. In the cross-examination, he has stated that his signature on the seizure list was taken on the next morning at about 8 A.M. and appellant Sheikh Ishteyaque was not present at the place, where seizure list was prepared. He denied the suggestion that he had not stated during the course of investigation that appellant Sheikh Gayas had hurled bomb at Asad. He has also denied the suggestion that during the course of investigation, he had stated that appellants had fled away from the place of occurrence before he reached there.
36. P.W.14 Md. Maksood is the informant of the case and claim to be an eye witness to the occurrence. According to his evidence, his nephew Askari was busy in the shop and in the meanwhile, appellant Sheikh Samsul, Sheikh Asfak Sheikh Gayas, and Sheikh Chengwa armed with bombs, appellants Sheikh Kalim, Sheikh Ishteyaque, Sheikh Juman, Sheikh Aziz and Sheikh Nayeem armed with gun, came from the northern side. Those appellants armed with guns surrounded them and appellant Sheikh Samsul and Sheikh Asfak hurled bomb at Askari while he was sitting in the shop. Immediately thereafter, appellant Sheikh Asfak also hurled bomb at him. Both hit on his chest and as a result thereof, he died at the Gaddi itself. On hearing the bomb explosion, his another nephew namely Asad came running from his cloth shop, situated east to the shop of Askari, when appellant Sheikh Gayas hurled bomb at him. Sustaining injury he fell down there. Appellant Sheikh Chengwa threw bomb causing injury in the foot of P.W.1 Md. Vasir. The appellants, seeing the villagers gathering there, fled away from the place of occurrence firing gun shots. Asad's father Sheikh Sajid (P.W.3), Md. Afzal (P.W.6) and Md. Aslam (P.W.2) and others took the injured Asad to Government Hospital at Bhagalpur for treatment, where he died. According to this witness, the police personnel deputed in the village, came on hearing the bomb explosion, chased the persons who had committed the murder and with the help of the villagers, appellant Sheikh Ishteyaque was apprehended and on his search, an empty cartridge was recovered from his possession. He has stated that Police had recorded his fardbeyan. He has proved the same.
37. According to this witness, he had filed a case under Section 307 of the Indian Penal Code against the appellants of the case two years prior to the occurrence and appellant Sheikh Samsul, Sheikh Asfak and Sheikh Gayas used to pressurise them to withdraw the case, failing which their family members would be eliminated and on account thereof, they had committed murder of both the brothers.
In course of cross-examination, he has stated that the police came to the place of occurrence within 5-6 minutes and appellant Sheikh Ishteyaque was apprehended within 5-7 minutes thereafter. He had admitted that in the fardbeyan, he had not stated about appellant Sheikh Ishteyaque being caught or recovery of empty cartridges from him. In the cross-examination, he has asserted that it was not dark at the time when the appellants reached the place of occurrence and according to him the lantern was burning in the shop. According to this witness, two appellants entered into the shop whereas others remained out side. He has further admitted that the appellants, who had surrounded them, did not threw bomb. He feigned ignorance as to how the Sub Inspector of Police came to the village and asserted that none of them had gone to the Police Station to lodge the report. He admitted to have been made an accused in the murder case of Asfak. He denied the suggestion that both the deceased and P.W.1 Md. Vasir received gun shot injury inside the shop itself and they could not see the occurrence as it was dark. He also denied the suggestion that the name of accused persons have been given on account of previous enmity.
38. P.W.13 Dr. H.I. Ansari, who had conducted the Post Mortem Examination, has found the following antemortem injuries on the person of the deceased Askari:
(i) Explosive blast injury on upper part front of chest and neck. Size 11' x 7' chest cavity deep, with lacerated black bruise and irregular margin.
Yellow deposits of powder with unnatural smell was found on the surrounding of the wound.
On the right side first to fifth rib and on the left side first to sixth rib found broken along with fracture of sternum making a big hole on the front of chest.
Both the lungs and heart found lacerated, chest cavity contains blood,
The diaphragm found confused along with a portion of a lever.
Foreign bodies including blood stained 'suthri' glass pieces and a piece of tin were recovered from the injury and from the margin of the wound.
(ii) Blast injury explosive on left side of chin of face. Size 1' x 3/4 ' X muscle deep. A piece of tin was taken out from the wound.
(iii) Blast injury explosive on left fore-arm. Size 2' x 1.1/2 ' superficial on the enterior surface with bruising six inches long, a piece of glass was taken out from the wound,
(iv) Blast injury on both knee superficial 2' x 2'.
2. On dissection, viscera found congested along with laceration of lungs and heart. Liver and diaphragm were confused. Stomach contained gas.
39. According to the doctor, the injuries found on the person of Askari were caused by explosive substance, like, bomb. In his opinion, the cause of death was haemorrhage and shock due the injuries found on his person and death had taken place about 18-24 hours of the occurrence.
He had also conducted post mortem examination of the dead body of Md. Asad and found injury on his person caused by explosive substance like bomb. The injuries found on his person are detailed below:
(i) Blast explosive injury size 5' x 4' x abdominal cavity deep found on the right side back of the abdomen with irregular lacerated and bruised margin with burning yellow deposits, burning yellow deposits.
Abnormal smell was found on the margin and surrounding skin,
On dissection foreign bodies including bunch of blood stained sutri, tin plate and glass pieces were taken out from inside the wound and from the margin,
On dissection, lungs were pailed, heart chambers were empty. Lever was lacerated posteriorily, spleen diaphragm and left kidney were confused right kidney also confused with blood clot,
The ninth rib posteriorly found broken, stomach contained partly digested rice and full. Bladder was empty. Canal contained gas. Brain was congested.
In the opinion of the doctor, the death had taken place due to haemorrhage and shock on account of the injuries sustained by him and the death had taken place within 12-18 hours. He has also proved the Post Mortem Reports (Exts.4 and 5).
40. P.W.15 Shankar Dayal Singh is the Investigating Officer of the case. He got the fardbeyan of the informant recorded by Assistant Sub Inspector of Police Nanku Ram and has proved the same (Ext.7). He found the dead body of Askari inside the Kirana shop, prepared the inquest report, which is also in the pen of aforesaid Nanku Ram. He inspected the place of occurrence and found remnants of bombs as also blood stains inside the shop. He has also stated that appellant Sheikh Ishteyaque was in custody of the Havaldar and was handed over to him.
41. Mr. Kanhaiya Prasad Singh, Senior Advocate, appears on behalf of appellants Sheikh Samsul and Sheikh Gayas, who have been awarded death sentence. Mr. Akhileshwar Prasad Singh appears on behalf of appellants in Cr. Appeal Nos. 92, 122, 123 and 126 of 2002. Appellant in Cr. Appeal No. 98 of 2003 is represented by Mr. Krishna Mohan.
42. Mr. Lala Kailash Bihari Prasad, Additional Public Prosecution appears on behalf of the State, whereas the informant is represented by Mr. Ajay Kumar Thakur.
43. Mr. Singh, submits that P.W.1 Md. Vasir and P.W.10 Md. Salauddin have been named in the First Information Report, but they have not supported the case of the prosecution. He points out that according to the prosecution itself, Md. Vasir had sustained injury in the occurrence and their failure to support the case of the prosecution, entitles the appellants the benefit of doubt. He points out that P.W.3 Md. Sajid, P.W.4 Md. Naim, P.W.5 Md. Jakiruddin and P.W.14 Md. Maksood are full brothers and though Md. Nasim, Md. Jakiruddin and Md. Maksood claim to be the eye witnesses to the occurrence and claim to be gossiping near the shop of Askari but P.W.1 Md. Vasir had not supported the case of the prosecution in this regard.
44. Mr. Prasad, submits that P.W.1 Md. Vasir and P.W.10 Md. Salauddin have been declared hostile and as such, the case of the prosecution cannot be rejected only on the ground that they have not supported the case of the prosecution.
45. Having appreciated the rival submission, we find substance in the submission of Mr. Prasad. True it is that the evidence of hostile witnesses are not wiped up from the record of the case, but it cannot be said that the prosecution will fail only on their failure to support the case of the prosecution. The prosecution cannot be left hostage at the hands of the witnesses mentioned in the First Information Report. P.W.1 Md. Vasir in fact had supported the case of the prosecution so far as factum of occurrence is concerned and had admitted that deceased Askari and Asad sustained injury due to bomb explosion.
46. Mr. Singh, draws our attention to the evidence of P.W.4 Md. Naim in paragraph No. 8 of his cross-examination, where he has stated that appellants had surrounded them from all sides. In this connection, our attention has also been drawn to the evidence of P.W.4 Md. Naim at paragraph No. 10, P.W.5 Md. Jakiruddin at paragraph No. 6 and P.W.14 Md. Maksood at paragraph No. 2. The evidence of the prosecution witnesses, where they have admitted that although P.W.14 Md. Maksood was surrounded by five of the appellants armed with gun, but no harm was caused to him has also been brought to our notice. Mr. Singh submits that the motive for the occurrence, according to the witnessed, is refusal by P.W.14 Md. Maksood to withdraw the case lodged by him under Section 307 of the Indian penal Code against some of the appellants and although, he was surrounded by few of the appellants from all sides, but no harm was caused to him. This, according to Mr. Singh, renders the case of the prosecution improbable.
47. Mr. Prasad, submits that merely the fact that the informant P.W.14 Md. Maksood was left unharmed, is not enough to reject the case of the prosecution.
48. We do not have the slightest hesitation in rejecting this submission of Mr. Singh. Why the appellants had left the informant unharmed can not be explained by the prosecution. In our opinion, in case the court, on appraisal of the evidence of the witnesses, find them trustworthy, prosecution case cannot be rejected on the ground that others have been left unharmed. May be the appellants had chosen to murder two young persons of the family to teach them the lesson.
49. Mr. Singh, then submits that during the trial, the prosecution had departed from the original story. He points out that according to the First Information Report, all the appellants had entered into the shop, but during the trial, the witnesses have stated that only Sheikh Samsul and Sheikh Asfak had entered into the shop. This according to Mr. Singh, renders the case of the prosecution doubtful.
50. We do not find any substance in the submission of the learned Counsel. All the eye witnesses, during the course of trial, have consistently stated that other appellants remained outside the shop and only appellants Sheikh Samsul and Sheikh Asfak had entered into the shop. In our opinion, the statement of the informant is not to be taken literally. When the informant has stated in the First Information Report that all the appellants had entered in the shop same does not mean that they had entered into the shop, but it means that they had gone near the shop.
51. Mr. Singh submits that according to the prosecution, Asad was assaulted by bomb out side the shop, but the Investigating Officer of the case has not found remnants of bomb out side the shop. In this connection, our attention has been drawn to the evidence of P.W.15 Shankar Dayal Singh, the Investigating Officer of the Case, wherein, he has stated that he did not find the remnants of the bomb outside the shop.
52. Mr. Prasad, submits that according to the prosecution, a large number of persons had collected at the place of occurrence on the road and the remnants of bomb getting lost in the process, can not be ruled out. He points out that the remnants of bomb were found, inside the shop.
53. In our opinion, absence of remnants of bomb out side the shop itself, is not sufficient to discard the case of the prosecution. We are entirely in agreement with the submission of Mr. Prasad that on account of a large number of persons having collected at the road, same got lost in the process. The presence of remnants of bomb inside the shop, in fact, gives credence to the case of the prosecution that the bomb was hurled.
It is relevant here to state that in order to bring home the charges, the prosecution has brought on record the oral dying declaration given by the deceased Asad in presence of P.Ws.3 and 6, namely, S.K. Sajid and Md. Afzal respectively.
54. Mr. Singh, points out that the fact of the oral dying declaration was not stated by P.W.6 Md. Afzal before the police during the course of investigation. He submits that this witness although has denied the suggestion given to him, but P.W.15 Shankar Dayal Sharma, the Investigating Officer of the case has stated that P.W.6 Md. Afzal had not stated before him that Asad regained consciousness and disclosed the names of the assailants. He accordingly, submits that the evidence of P.W.6 Md. Afzal on the point of oral dying declaration is fit to be rejected. He further points out that the evidence of P.W.3 Sheikh Sajid on this point is also fit to be rejected. He has referred to the statement of P.W.3 S.K. Sajid given during the course of investigation and submits that this witness had also not disclosed about the oral dying declaration. He submits that Section 172(2) of the Code of Criminal Procedure entitles the Court to use the police diary for an enquiry or trial.
55. Mr. Prasad, however, submits that the statement of a witness to the police case diary cannot be used as a substantive evidence and the attention of the witness having not been drawn as contemplated under Section 145 of the Evidence Act, same is not fit to be looked into for any purpose.
56. We find substance in the submission of Mr. Prasad. Undoubtedly, the aforesaid omission was not put to P.W.3 Sheikh Sajid during his evidence. From a plain reading of Section 145 of the Evidence Act, it is evident that the attention of a witness is to be drawn to his previous statement. Section 172 of the Code of Criminal Procedure empowers any criminal court to send for the police case diary and use it not as evidence, but to aid it in such inquiry or trial. It is evident that a police diary cannot be used as evidence in the case but can be taken into consideration in aid of and inquiry or trial. In our opinion, when attention of a witness is not drawn to his previous statement during the course of investigation, same can not be looked into in exercise of powers under Section 172(2) of the Code of Criminal Procedure. The view which we have taken, finds support from the judgment of the Supreme Court in the case of Habeeb Mohammad v. State of Hyderabad : [1954]1SCR475 , in which it has been held as follows:
xxx Section 172 provides that any criminal court may send for the police diaries of a case under inquiry or trial in such court and may use such diaries, not as evidence in the case but to aid it in such inquiry or trial'. It seems to us that the learned Judge was in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries. The only proper use he could make of these diaries was the one allowed by Section 172 Cr.P.C., i.e. during the trial he could get assistance from them by suggesting means of further elucidating points which needed clearing up and which might be material for the purpose of doing justice between the State and the accused. This he did not do because the diaries were not before him.
It is relevant here to state that the case of the prosecution is not depended only on the oral dying declaration but the prosecution has come out with this to lend support to its case.
57. Learned Counsels have drawn our attention to the evidence of the prosecution witnesses, where they have admitted that P.W.3 Sheikh Sajid, P.W.4 Md. Naim, P.W.5 Md. Jakiruddin and P.W.14 Md. Maksood are accused in the murder case in which the appellants, Sheikh Asfak, Sheikh Juman, Sheikh Samsul are witnesses. They submit that on account thereof, the possibility of the appellants having been implicated falsely, cannot be ruled out.
58. There is overwhelming evidence on record that the aforesaid witnesses are accused in the murder case of Asfak in which some of the appellants are witnesses. The question, therefore, is as to whether on this ground, the case of the prosecution deserves to be rejected. As it is well settled, enmity is a double edged weapon which furnishes cause for commission of crime and at the same time, gives opportunity for false implication. Here, in the face of the evidence of the prosecution witnesses, it is difficult to reject the case of the prosecution and hold that the appellants have been falsely implicated in the case.
59. Our attention has been drawn by the learned Counsels to the evidence of P.W.4 Md. Naim in paragraph No. 11, P.W.5 Md. Jakiruddin in Paragraph No. 10 and P.W.14 Md. Maksood in paragraph No. 26, where they have stated that nobody was sent to the Police Station to lodge the report. According to them, had the witnesses seen the occurrence, they ought to have rushed to the Police Station to lodge the report. This clearly shows that witnesses had not seen the occurrence and on account of previous enmity, implicated the appellants falsely.
60. Mr. Prasad, points out that two young members of the family having lost their lives, they were in shock and therefore, did not go to the police station immediately. He also points out that a Police Out Post was in the village and before the witnesses can gather strength, the Sub Inspector of Police came to the village at 10 P.M. on the date of occurrence. Whereas the occurrence had taken place at about 6 P.M.
61. We find substance in the submission of Mr. Prasad. In the back ground of what has been stated above, failure of the witness to go to the Police Station and lodging the report, in no way, creates any doubt to the case of the prosecution.
62. Our attention has been drawn to the evidence of P.W.14 Md. Maksood, wherein, he has stated that at the time of occurrence, customers were not present in the shop. He points out that during the course of investigation, the witness had stated about the presence of customers. In our opinion, this minor contradiction, in no way, affects the case of the prosecution.
63. In addition thereto, Mr. Akhileshwar Prasad Singh, submits that the case of the prosecution is fit to be rejected as the material witnesses are clearly related and inimical to the appellants.
64. We do not find any substance in the submission of the learned Counsel. It is well settled that the evidence of related witness cannot be rejected only on the ground of relationship. Their evidence is to be appreciated with care and caution. We cannot brush aside the stark reality that independent witnesses do not come forward to support the case of the prosecution, apprehending, danger and threat to their lives.
65. Mr. Singh, draws our attention to the evidence of P.W.1 Md. Vasir and submits that the explanation put forth by him that none could see the appellants due to heavy smoke is quite convincing, which clearly goes to show that none had seen the appellants committing the crime.
66. We do not find any force in this submission. Witnesses have stated that they were near the shop, where the occurrence had taken place and their evidence is not fit to be rejected only on the failure of P.W.1 Md. Vasir to identify the appellants on account of heavy smoke.
67. Mr. Singh, submits that the evidence of an infirm witness cannot be said to corroborated by another infirm witness. He also points out that in case the truth and falsehood are so intermingled that it becomes difficult to separate the truth, the entire evidence deserves to be rejected. In support of the submission, he has placed reliance on a decision of the Supreme Court in the case of Muluwa S/o Binda and Ors. v. The State of Madhya Pradesh : 1976CriLJ717 and our attention has been drawn to paragraph No. 18 of the said judgment, which reads as follows:
18. - It is elementary that the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; for, evidence is to be weighed not counted. Since the evidence of P.Ws.5 and 6 suffered from the same infirmities as that of Smt. Jugatia, it cannot be said that the trial Judge had no basis, whatsoever, for stigmatising it as unreliable.
68. Yet another decision on which reliance has been placed is the decision of the Supreme Court in the case of Kanbi Nanji Virji and Ors. v. State of Gujarat : 1970CriLJ363 and out attention has been drawn to paragraph No. 7 of the said judgment, which reads as follows:
7. - xxx Having come to the conclusion that right from the beginning P.W.5 was giving a distorted version of the incident, the High court was not right in holding that any portion of P.W.5's evidence can be relied upon merely because that some portion of his testimony in court accords with the version given by him to P.W.10. It is true that often times the courts have to separate the truth from falsehood. But where the two are so intermingled as to make it impossible to separate them, the evidence has to be rejected in its entirety.
69. We do not have the slightest hesitation in accepting the broad submission of Mr. Singh that evidence of an infirm witness cannot be corroborated by another infirm witness and in case, in the evidence of a witness, truth and falsehood is so intermingled, that truth can not be separated, evidence of such witness has to be rejected in its entirety. In fairness, the judgments relied on by him do support his submission but in our opinion, same has no bearing at all in the facts of the present case. The evidence of the witnesses are not infirm, nor their evidence is so intermingled that the truth cannot be separated. Accordingly, we reject this submission of Mr. Singh.
70. Mr. Singh, then submits that according to the prosecution, after Sheikh Samsul threw bomb causing injury to the deceased Askari, appellant Asfak had also thrown bomb causing injury on the chest, but same has not been corroborated by the medical evidence.
71. This submission has been noted only to be rejected. The injuries found on the person of deceased by the doctors have been quoted in extenso earlier. The doctor has found several injuries on the chest of the deceased Askari. It is well known that splinters travel in different directions and several injuries are caused by explosion of bomb. The doctor having found such injuries, it cannot be said that the case of the prosecution is not corroborated by the medical evidence.
72. Mr. Singh, submits that according to the prosecution itself, two of the members of the unlawful assembly had entered into the shop of Askari and hurled bomb at them, whereas another appellant caused injuries to Asad. He submits that rest of the appellants did not share common object of the unlawful assembly and therefore, cannot be held guilty with the aid of Section 149 of the Indian Penal Code. He points out that other than the aforesaid three appellants, no overt act has been alleged against others and further there is nothing to show prior meeting of mind. In support of the submission, he has placed reliance on a judgment of the Supreme Court in the case of Shambhu Nath Singh and Ors. v. State of Bihar : AIR1960SC725 and our attention has been drawn to the following passage from paragraph No. 6 of the said judgment, which reads as follows:
6. xxx But 'members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly'. Jhairuddin v. Queen Empress, ILR 22 Cal 306.
73. Reliance has also been placed on the decision of the Supreme Court in the case of Bhimrao alias Ramesh Pandhari Bhade and Ors. v. State of Maharashtra : 2003CriLJ1204 , relevant portion whereof reads as follows:
8. xxx In the absence of any material to the contrary, it should be presumed that those members of the original unlawful assembly who only shared the common object of assaulting deceased Prabhakar cannot be attributed with the subsequent change in the common object of some of the members of the assembly who entered the house of Prabhakar and caused grievous injuries to him. So far as the present appellants are concerned, who stood outside the house of the deceased and who could not have known what actually transpired inside the house, the act of those members of the original unlawful assembly who entered the house, cannot be attributed, hence, as contended by the learned Counsel for the appellants at the most these appellants will be liable to be punished for sharing the original common object which was only to assault the deceased, therefore, they can be held guilty of an offence punishable under Section 352 read with Section 149 only.
74. Yet another decision on which reliance has been placed is the decision of the Supreme Court in the case of Ram Dular Rai and Ors. v. State of Bihar : 2004CriLJ635 and our attention has been drawn to para-13 of the said judgment which reads as follows:
13. In the present case, the evidence of eyewitnesses which has been analysed in great detail by both the trial court and the High Court shows that though four appellants were specifically identified, other persons carrying weapons were present along with the appellants at the time and place of occurrence. That being so, Section 149 has been rightly applied.
75. We do not find any substance in the submission of the learned Counsel. There is overwhelming evidence on record to show that all the appellants came together and out of them four were armed with bomb and the rest with guns. Two of the appellants entered into the shop of Askari, threw bomb on him which caused his death. Another appellant threw bomb at Asad which resulted into his death. Other appellants had surrounded the informant and other witnesses so that they may not intervene to save the deceased. They had left the place firing gun shots. From aforesaid, there is no escape from the conclusion that the appellants were the members of the unlawful assembly and shared the common object although.
76. Now, referring to the decision of the Supreme Court in the case of Shambhu Nath Singh (supra) and Ramesh Pandhari bade and others (supra), we find that the same are clearly distinguishable. In the facts of those cases, the Supreme Court found that all the members of the unlawful assembly did not share the common object. So far as the decision of the Supreme Court in the case of Ram Dular Rai and ors. (supra) is concerned, same instead of supporting the case of the appellants, goes against them. In the said case, appellants were found present along with other persons carrying weapons and taking into account the aforesaid fact, the Supreme Court found that Section 149 of the Indian Penal Code shall be clearly attributed.
77. Mr. Krishna Mohan, while assailing the conviction of Sheikh Naim in Cr. Appeal No. 98 of 2003, submits that the motive of the occurrence, according to the prosecution itself, was purported pressure exhorted by the appellants to withdraw the criminal case lodged by the informant against them, but in that case, appellant Sheikh Naim was not an accused and hence, he had no reason to participate in the occurrence. He points out that this appellant belongs to another village. He also submits that P.W.4 Md. Nasim and P.W.9 Md. Rajjak had not disclosed his name during trial.
78. We do not find any substance in the submission of the learned Counsel. Even if we ignore the evidence of P.W.4 Md. Nasim and P.W.9 Md. Rajjak, P.W.5 Md. Jakiruddin, P.W.6 Md. Afzal, and P.W.14 Md. Maksood have identified him from amongst the assailants. Hence, the conviction of appellant Sheikh Naim cannot be faulted on the ground urged by Mr. Krishna Mohan
79. P.W.4 Md. Naim, P.W.5 Md. Jakiruddin, P.W.9 Md. Rajjak and P.W.14 Md. Maksood are the eye witnesses to the occurrence. They have consistently stated about the appellants' participation in the crime. P.W.3 S.K. Sajid, P.W.8 Jainul Abdin had seen the appellant fleeing away from the place of occurrence. The names of the appellants have been disclosed by the witnesses to P.W.6 Md. Afzal, who along with P.W.7 Salamul Ansari came immediately after the occurrence. Thus, the evidence of the eye witnesses is corroborated by the aforesaid witnesses, who had seen them fleeing away from the place of occurrence. Further disclosure of the names of the assailants by the eye witnesses to the witnesses who reached there immediately thereafter also lends support to the case of the prosecution. Dr. H.I. Ansari (P.W.13) who had conducted the post mortem examination, had found injuries caused by explosion on the persons of the deceased. P.W.15 Shankar Dayal Singh, the Investigating Officer of the case, had found remnants of bomb in the shop, where the occurrence had taken place. The aforesaid evidence taken together clearly prove the case of the prosecution beyond all reasonable doubt.
80. It is relevant here to state that the Court below has awarded death sentence to Sheikh Samsul and Sheikh Gayas primarily on the ground that although they were convicted and sentenced to life imprisonment in an earlier case, still they had committed the offence of murder. This, according to the Court below, renders the case in hand to be the rarest of the rare case calling for the death sentence.
81. Mr. Singh, submits that this itself shall not bring out the case amongst rarest of the rare case. In support of the submission, he has placed reliance on a judgment of the Supreme Court in the case of Krishan v. State of Haryana : 1997CriLJ3180 and our attention has been drawn to the following passage from para-10 of the judgment which reads as follows:
10. - Coming now to the sentence we find that the principal reason which weighed with the Courts below to hold that the extreme penalty of death was called, was that earlier the appellant had committed a murder for which he was serving the sentence of life imprisonment at the material time and that he committed another murder while he was released on parole.
Mr. Prasad as also Mr. Thakur, appearing on behalf of the informant submit that this is one of the rarest of the rare case where the death penalty is called for.
82. We had the occasion to consider this question in the case of The State of Bihar v. Sanjeet Rai and Anr. 2006 (4) PLJR 479, in which in para-59, it has been held as follows :
59. - True it is that the crime has been committed in a heinous and brutal manner but there is nothing on record to show that the two condemned shall be menace to the society threatening its peaceful existence and continuous threat to the society, if come out of incarceration. There is no reason to believe that they cannot be reformed and they are likely to continue criminal activities. Having given my most anxious consideration and viewed from this angle, the case in hand does not come within the category of rarest of the rare case cases, calling for extreme penalty of death.
83. This Court had also the occasion to consider this question in little detail in the case of The State of Bihar v. Prajeet Kumar Singh 2006 (2) PLJR 656 in which it has been held as follows :
32. - The authorities on the question lead us to conclude that death sentence can be inflicted in rarest of the rare case and the number of persons killed is not decisive. Crime being brutal and heinous itself do not turn the scale towards death sentence. If these factors are present the Court has to see as to whether the accused is a menace to the society and continue to be so, threatening the peaceful and harmonious co-existence of society. The Court has to further enquire and believe that the accused condemned cannot be reformed or rehabilitated and shall continue with the criminal acts. In this way a balance-sheet is to be prepared while considering the imposition of extreme penalty of death of aggravating and mitigating circumstances and just balance is to be struck. So long the death sentence is provided in the statute and when collective conscience of the community is pertified, the holders of judicial power will not stammer, de hors their personal opinion and inflict death penalty.
84. Bearing in mind the principle aforesaid, when we proceed to examine the facts of the case, we are of the opinion that the case in hand does not fall within the category of rarest of the rare case. True it is that the two condemned had committed the crime and before that, another offence of murder was committed by them, but that itself, shall not make the case rarest of the rare case. The view which we have taken finds support from the judgment of the Supreme Court in the case of Krishnan (supra). Further there is nothing on record to show that the two condemned shall be menace to the society, threatening its peaceful existence and continuous threat to the society. There is also nothing on the record to show that they cannot be reformed and rehabilitated and likely to continue with the criminal activities.
85. Viewed from this angle, the case in hand does not come within the category of rarest of rare case. Accordingly, we sustain the conviction of all the appellants, but decline to confirm the death sentence of Sheikh Samsul and Sheikh Gayas. We commute the sentence of death imposed on them to imprisonment for life.
86. In the result, the death reference is rejected and all the appeals are dismissed with the aforesaid modification in the sentence.
As all the appellants, excepting appellant Sheikh Samsul, Sheikh Gayas and Sheikh Asfak are on bail, their bail bonds are cancelled and they are directed to surrender to serve out the sentence.