1997 Supreme(SC) 937

1997(6) Supreme 435
SUPREME COURT OF INDIA
K. Ramaswamy and D.P. Wadhwa, JJ.
State of Gujarat —Appellant
versus
Anirudhsing & Anr.        —Respondents
Criminal Appeal No. 626 of 1997
(Arising out of SLP (Crl.) No. 1982 of 1997)
With
Criminal Appeal No. 1919 of 1996
Decided on 10-7-1997
Counsels For the Parties :
For the Appellant : B.V. Desai, Mrs. H. Wahi and Ms. S. Hazarika, Advocates.
For the Respondents : Sushil Kumar, Sr. Advocate, Deepak H. Raval, Shailendra N. Singh, Ms. Neelam Kalsi and Vimal Dave, Advocates

IMPORTANT POINTS
1. A senior reserve police officer appointed under the Bombay State Reserve Police Force Act, 1951, is not an investigating officer within the meaning of Chapter XII of the Criminal Procedure Code and therefore, a confession recorded by him is not hit by Section 25 of the Evidence Act.
2. It is the duty of the Court to scan the evidence, test it on the anvil of human conduct and reach a conclusion whether the evidence brought on record even of the turning hostile witnesses would be sufficient to bring home the commission of the crime.

Headnote:(i) Evidence Act, 1872—Section 25—Admissibility of confession—A senior reserve police officer appointed under Bombay State Reserve Police Force Act, 1951—Not an Investigating Officer within meaning of Chapter XII of Cr.P.C.—Whether confession made to him is hit by Section 25 of the Act?—(No).

       Held that a senior reserve police officer appointed under the SRPF Act, though is a police officer under the Bombay Police Act and an officer in charge of a police station, he is in charge only for the purpose of maintaining law and order and tranquility in the society and the powers of investigation envisaged in Chapter XII of the Cr.P.C. have not been invested with him. (Para 16)

       (ii) Criminal Procedure Code, 1973—Section 154—Evidence Act, 1872—Section 157—First Information Report—Not a substantive piece of evidence—It can only be used to corroborate or contradict statement of maker.

       Held that the first information report is never treated as a substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in Court as a witness. Its value must always depend on the facts and circumstances of a given case. The first information report can only discredit the testimony of the maker thereof. It can by no means be utilised for contradicting or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate an innocent person. Prosecution case cannot be thrown out on the mere ground that in the first information report an altogether different version was given by the informant. (Para 21)

       (iii) Evidence Act, 1872—Hostile witness—Admissibility of evidence of.

       Held; merely because some of the witnesses have turned hostile, their ocular evidence recorded by the Court cannot be held to have been washed off or unavailable to the prosecution. It is the duty of the Court to carefully analyse the evidence and reach a conclusion whether that part of the evidence consistent with the prosecution case, is acceptable or not. It is the salutary duty of every witness who has the knowledge of the commission of crime, to assist the State in giving the evidence; unfortunately for various reasons, in particular deterioration in law and order situation and the principle of self-preservation, many a witness turn hostile and in some instances even direct witnesses are being liquidated before they are examined by the Court. In such circumstances,, it is high time that the Law Commission looks into the matter. We are informed that the Law Commission has recommended to the Central Government to make necessary amendments to the Cr.P.C. and this aspect of the matter should also be looked into and proper principles evolved in this behalf. Suffice it to state that responsible persons like Sub-Divisional Magistrate turned hostile to the prosecution and most of the responsible persons who were present at the time of flat hoisting ceremony on the Independence Day and in whose presence a ghastly crime of murdering a sitting M.L.A. was committed, have derelicted their duty in assisting the prosecution and to speak the truth relating to the commission of the crime. However, we cannot shut our eyes to the realities like the present ghastly crime and would endeavour to evaluate the evidence on record. Therefore, it is the duty of the trial Judge or the appellate Judge to scan the evidence, test it on the anvil of human conduct and reach a conclusion whether the evidence brought on record even of the turning hostile witnesses would be sufficient to bring home the commission of the crime. (Para 24)

       (iv) Evidence Act, 1872—Murder case—High ranked officers in the State present on scene of occurrence—Merely because they are police officers, their evidence cannot and must not be rejected outrightly as unreliable or unworthy of acceptance—It requires to be subjected to careful evaluation like any other witness of occurrence. (Para 25)

       (v) Terrorist and Disruptive Activities (Prevention) Act, 1987—Section 25—Indian Penal Code, 1860—Sections 302 and 114 — Appeal against acquittal for offences under—Flag hoisting ceremony on Independence Day—Murder of a sitting M.L.A.—Homicidal death of deceased—Apprehension of first respondent at scene of occurrence proved—Recovery of pistol and handkerchief allegedly thrown over head of PW-58, have been proved—Pellet found inside the brain—Senior high ranking police officers being on duty there—No possibility of false implication—Absence of motive not a ground to reject prosecution case—Conviction u/s 302—Sentence of imprisonment for life—Conviction u/s 5 TADA—Sentence of imprisonment for three years.

       Held; the FIR given by Shekhawat under Ex. 203/1 was the first information report. As extracted earlier, it does contain wealth of material particulars regarding the apprehension of Anirudhsing on the spot. The only omission therein was of the apprehension of the accused by Jhala, PW-4. As regards the factum of apprehension of the first respondent on the spot, his identify and name, being brought by PW-58, PW-46 and others find place in the first information report itself. Therefore, the evidence of PW-58 that he had brought the Accused No.1, Anirudhsing from the scene of the offence and handed him over to police Rawat, Inspector to record the FIR gets corroboration from Ex. 203/1. (Para 30)

       A reading of the post-mortem report which is a part of the record and the evidence recorded in the judgment of the Sessions Court, correctness of which even was not commented upon, does indicate that the post-mortem was conducted jointly by Dr. Buch and Dr. Trivedi and the major work was done by Dr. Buch. It is also the evidence of Dr. Buch. In view of that positive evidence, as per the post-mortem report which is a part of the record, the injury to the head have been caused due to the firm arm and, therefore, there is no doubt that the homicidal death and was not due to any other cause. That was not even the case of the accused. The omission to examine Dr. Trivedi is not of relevance. As regards the identification of the weapon, there is evidence of PW-58, I.B. Shekhawat who is also an officer admittedly on duty at that time and in his evidence he categorically stated that he saw that a fire arm was thrown above his head, he immediately swung into action and ran towards the direction where it had fallen; he took it in his hand, identified it to be pistol wrapped up with handkerchief. That fact finds express mention in the FIR, Ex. 203/1. That was also spoken to by PW-46, another officer on duty and also spoken by PW-4, Jhala. As regards the pistol which was seized, we have unimpeachable evidence on record of Bharat Virji S/o Kapilrai Mistry, Senior Scientific Forensic Officer, PW-55, who had done the analysis after the receipt of the pistol from the ballistic expert, that it is the pistol that was placed before the Court. Thus it could be held that the prosecution has established that the weapon which was thrown over the head of PW-58, I.B. Shekhawat, was the one that was seized by him and placed before the police under FIR, Ex. 203/1; mention thereof was made in the custody of the Court immediately at 12.15 p.m. on that date. Thus the prosecution has conclusively proved that the firm-arm Ex. A-1 was recovered from the scene. It is true that the empty cartridge could not be recovered to connect whether the cartridge was discharged from the pistol. It is in the evidence of PW-4, Jhala and PW-58, I.B. Shekhawat, that they heard the sound like cracker from behind them and immediately they saw the people running helter-skelter and when PW-4 got up on the chair and looked around, he saw Anirudhsing, Accused No. 1 attempting to run away. As a consequence, he immediately jumped from the chair and caught him. (Para 33)

       In view of the unimpeachable evidence of PW-58 who seized the weapon thrown immediately after the commission of the offence over his head and in view of further corroboration in that behalf received from the evidence of PW-4 and PW-46, another officer on duty, the omission to place on record the sketch of the scene of the offence or fire arm expert, is not material consequence. As regards photographs, their relevance will be considered while examining the evidence of Anirudhsing having been caught on the spot. (Para 34)

       In view of the unchallengeable and unimpeachable evidence of PW-55, the Forensic Doctor who has spoken of the pistol and handkerchief in the Court, and in view of the acceptable evidence of PW-58 and of PW-4 and PW-46, another officer on duty, we have no hesitation to hold that the muddamal pistol, Ex. 1A was the one that was used to hit the deceased, Popatbhai. It is true that it depends upon the velocity with which the trigger was operated that would generate the speed for causing the wound and it is difficult for the prosecution to establish in that behalf the speed but the fact remains that the pellet having been found in the head of the deceased, it is clear that pistol was used in causing the death of the deceased and the deceased was shot dead from behind. (Para 36)

       The next question is : whether the death was caused by Anirudhsing ? We have the evidence of PW-4, PW-58 and PW-46 in this behalf. Undoubtedly, they are police officers. Their presence cannot be disputed for the reason that they were deployed on duty at the time of flag hoisting ceremony. We have already noted that in the First Information Report the identity of the first respondent was specifically mentioned and he was produced within 25 minutes after the time of occurrence. The occurrence had taken place at 9.30 a.m. and he was produced before the police at 9.55 a.m. The Report contained the material particulars that Anirudhsing was caught; handed over to and was kept in the custody of the police, FIR was in the custody of the court at 12.15 p.m. even before Bhattacharya, D.I.G. had started real investigation into the matter. Thus we hold that Anirudhsing, Accused No. 1 was caught on the spot at the scene of the crime. In fact, the trial Judge also has accepted his presence at the scene of occurrence. It has been proved beyond reasonable doubt. Shri Sushil Kumar, learned senior counsel in fairness has also not seriously disputed in that behalf. From this perspective, the omission to place on record the photographs is not at all relevant. The photographer normally concentrates on high dignitaries and it is not the case that the photographer had clicked any photograph of the actual commission of the crime. Perhaps, if the Accused No.1 was taken into police custody long after the incident, then the photos become relevant evidence. It is an admitted position that in one of the photographs Accused No.1 was seen at the time of flag hoisting ceremony. (Para 37)

       Further held : Merely because others were taken into custody, it cannot lead one to conclude that others committed the crime and that the first respondent has been falsely implicated in the crime. No other ground was even suggested to make any false implication of Anirudhsing. The fact that immediately after Ex.A-1, the pistol wrapped in Ex.A-2, the handkerchief was thrown over the head of PW-58, Shekhawat, PW-4, Jhala had looked behind after getting on the chair and on finding the first respondent attempting to run away, he ran and caught him immediately. When the first respondent was caught immediately, necessarily his mental faculty would be disturbed as was found but it is not sufficient base to conclude that he has not committed the crime. That is also a relevant fact to be taken into account in PW-4 to reach the conclusion that he is the suspect in the commission of the crime. It can in fairness, be said that PW-4, has not stated in his evidence that Accused No.1, Anirudhsing has committed the crime by throwing it. Therefore, the conduct of PW-4 in instantly swinging into action and the manner in which he acted upon and gave the evidence in the court, creates an unmistakeable impression in our mind that PW-4 is a truthful witness. That evidence was also corroborated from the evidence of PW-58 and PW-46. Special Reserve Police Officer on duty. It would thus be seen that throwing of the handkerchief and catching of Anirudhsing have been established beyond doubt. (Para 38)

       When the pistol and the handkerchief were thrown from behind and when Anirudhsing was caught when he was at the back of the deceased, the necessary conclusion to be drawn unmistakably is that it was Anirudhsing who hit the deceased and thereafter he had thrown the pistol over the head of Shekhawat, PW-58 so as to avoid his being identified and he made an attempt to run away from the scene. Therefore, we hold that Anirudhsing, Accused No. 1 alone has done Popatbhai to death. (Para 39)

       Finally held : Thus considered in the light of the circumstances, we have no hestitation to hold that the prosecution has established the case that Anirudhsing, and none else, has committed the murder of the deceased, Papatbhai. The learned designated Court has not correctly appreciated the evidence in the proper perspective. Accordingly, we hold that the prosecution has proved its case beyond reasonable doubt that Anirudhsing, the first respondent was in possession of a fire arm which was not proved to be licensed one. Therefore, it is an unauthorised weapon. Accordingly, the first respondent, Anirudhsing has committed the offence under Section 5 of the TADA Act and also the offence of murder punishable under Section 302, IPC. (Para 41)