VERY IMPORTANT POINT
Supreme Court while upholding the convictions of the appellants under Sections 302, 149 IPC modifies death penalty of one and orders life term for rioters after 17 years from the date of incident.

Headnote:(i) Indian Penal Code, 1860-Sections 302 and 149-Murder during riot on the occasion of Holi in 1984-Victim was Vinod Kumar Mehta, DCP-First he took shelter in a Masjid and from there in house of a Police Constable PW21 Abdul Latif Khan as rioters were chasing him-Son of PW21 Md. Hadis Khan (PW24) gave asylam to DCP-He saw Appellant Nasim @ Naso along with others assaulting DCP-Appellant Nasim assaulted with iron rod on head-Medical evidence corroborating it which was found cause of death-PW24 s evidence also corroborated by PW21-Both were natural witnesses-No enimity or error in identification pointed out-Courts below concurrently found Appellant Nasim as one of the main culprits-Whether correct? (Yes) (Cross ref.: Evidence Act, 1872-Section 157-Corroborative evidence)-Case law referred.
       Held : Thus we have no reason to dissent from the findings of the trial Court in so far as the involvement of appellant Naso in the murder of Deputy Commissioner of Police (V.K. Mehta) is concerned. The conviction of the offences under different counts passed on that appellant thus needs no interference. (Para 9)
       (ii) Criminal Procedure Code, 1973-Section 164-Confession of Appellant Lokeman Shah-Indian Penal Code, 1860-Sections 302, 149 and 142-Offences under rioting and murder of Policeman-Confession Ex.13-Whether a confessional statement at all? (Yes) (Para 11)-Can it be relied on as voluntary? (Yes) (Para 13)-Is it insufficient to convict appellant for offences under Sections 302 and 149, IPC? (Yes)-Case law discussed-Whether conviction of this appellant needs any interference? (No).
       Held : The statement must be read as a whole and then only the court should decide whether it contains admissions of his incriminatory involvement in the offence. If the result of that test is positive then the statement is confessional, otherwise not. Applying that test on Ext.13 statement we have no doubt that it is a confessional statement. (Para 11)
       Held further that there is no allegation that the Judicial Magistrate has not adopted all the precautions enjoined by law before recording the confession. No other formality prescribed under law has been infringed by PW-51 Judicial Magistrate. (Para 13)
       Held, however, after ruminating deeper into it we felt that the contention is not legally acceptable. (Para 14)
       But there is no warrant for the proposition that the court cannot proceed from the confession even a wee bit for the purpose of knowing whether the confessor had entertained any particular intention while perpetrating the acts admitted by him in his confession. Whether such intention could have focussed on the common object of the unlawful assembly to which he joined depends upon other facts. (Para 17)
       But held finally : We have no doubt that appellant Lokeman Shah joined the unlawful assembly knowing fully well that it had already become unlawful as its common object was to chase the persons whom the rioters believed to be responsible for defilement of the mosque. It is immaterial that the deceased V.K. Mehta had no part in the destruction or defilement of any mosque, but the rioters believed him to be the one. We must bear in mind that the chasers carried with them explosive and lethal weapons. In all such broad circumstances it would be inane to presume that the common object of those chasers was something less than finishing the prey whom they were chasing after. For the aforesaid reasons we are not persuaded to interfere with the conviction passed by the trial court and concurred by the High Court, in respect of the appellant Lokeman Shah. (Paras 22 & 23)
       (iii) Criminal Procedure Code, 1973-Sentence for offences under Sections 302 r/w 149 IPC-Courts below imposing death penalty for appellant Nasim @ Naso-Whether needs interference? (Yes, converted to life imprisonment).
       Held : The last and the only remaining aspect is regarding sentence. Appellants had neither any previous enmity to the victims nor even any acquaintance with them. It is admitted fact that they acted in a rage of fury blind-folded by communal frenzy. We are aware that in most of the communal riots the participants are by and large illiterate and indoctrinated people. When the literate leaders try to keep themselves away, without participating in the perpetration of crimes though, perhaps, some such persons would fan up the communal frenzy by their utterances in the minds of the ignorant poor people who in a deranged fury rush into the streets prowling for prey. It was an unfortunate plight of the people who are ignorant about the real sublime thoughts of religions that they threw themselves into the cauldron of communal delirium which was burning up to boiling point. That was a time when the minds of the rioters turned demented and no sensible thoughts would enter into them. The leaders and the society have not played their part to teach them that religions are not meant for killing fellow human beings. If ignorance had prompted people to take up cudgels in the name of religion for indulging in carnage or murders they are no doubt liable to be convicted and sentenced for the offence committed by them. But we have great difficulty to treat such a case as rarest of the rare cases in which the alternative sentence of life imprisonment can unquestionably be foreclosed. Thus, we alter the sentence passed on Nasim @ Naso for the offence under Section 302 read with Section 149 IPC and impose the next alternative (imprisonment for life) for the said offence. Subject to this modification of the sentence we dismiss both these appeals. (Paras 24 & 25)

JUDGMENT

Thomas, J.-On the day of Holi celebrations, seventeen years ago in Calcutta, (as the city was then known) an infuriated motley mob carmined one street not with "Gulal" (which is often used by ecstatic celebrants) but with human blood. They ran berserk blinded by communal frenzy and unleashed a terror of murder spree on 18.3.1984, along Fatehpur Village Road, which was within the limits of Garden Reach Police Station. Two among the innocent casualties of the gory episode were a young IPS officer and his security guard, both of whom were violently murdered.

2. Four persons, out of a number of accused arraigned before the Sessions Court for murder and other allied offences, were convicted and sentenced to death by the trial court at the first round. But on a retrial as ordered by the High Court the Sessions Court confined the conviction to two persons (the appellants herein) and awarded the sentence of death to both of them. A Division Bench of the High Court of Calcutta, while confirming the conviction of both, has chosen to uphold the death penalty for appellant Nasim @ Naso, and altered the sentence passed on appellant Lokeman Shah from death to life imprisonment, besides lesser sentences for lesser counts of offences. Both of them have filed appeal before this Court by special leave.

3. State of West Bengal is not prepared to spare Lokeman Shah from extreme penalty for murdering two of its police personnel and hence the State has filed an appeal for enhancement of the sentence to the extreme penalty. As we heard both the appeals together we have the advantage of disposing of both of them together by this common judgment.

4. A communal riot broke out on the morning of 18.3.1984. The rioters were running on a rampage hither and thither with bombs, brickbats and other weapons, prowling for human prey. Vinod Kumar Mehta, a 35-year old IPS officer was then the Deputy Commissioner of Police (DCP) at the Port Division, Calcutta. The Garden Reach Police Station falls within the territorial limits of his domain and hence he set out to quell the riots, escorted by his security guard Mukhtar Ali (a police constable) besides some other police personnel. When they felt that the infuriated rioters were thirsting for victims they thought it safe to go into a mosque expecting asylum. But the Imam of the mosque was not disposed to afford a shelter to such people. So they went out of the mosque. The security guard Mukhtar Ali ran into the house of a private individual while the Deputy Commissioner ran into the house of a police constable (PW-21 Abdul Latif Khan). As the rioters were chasing him PW-24 Md. Hadis Khan son of PW-21 Abdul Latif Khan gave asylum to the Deputy Commissioner in his house.

5. The rioters spotted the fleeing cops. The Deputy Commissioner in order to save himself from the fury of the chasing mob got into the bathroom of the house of PW-21 but a few of the marauders pursued him up to that place and caught him and killed him. The security guard was also intercepted by the blood thirsty assailants and he too was killed. Not having satisfied with the death of these police personnel the killers mutilated their corpses, stripped them off, tethered them and tried to incinerate the dead bodies which succeeded only partly as the bodies remained charred.

6. We may refer to the evidence focussing on the two appellants alone. As against appellant Nasim @ Naso, PW-24 Hadis Khan has deposed that he saw that accused among the assailants inflicting two blows with an iron rod on the head of the Deputy Commissioner of Police, the first blow caused his helmet to slide off, but the second blow fell on the head of the victim. The doctor who conducted the autopsy noted as many as twenty two ante-mortem injuries on the dead body of the Deputy Commissioner, out of which the injuries on the head consisted of a depressed comminuted fracture involving the right frontal and parietal and left temporal bones of the skull

Click Here to Read the rest of this document

2001 Supreme(SC) 665

VERY IMPORTANT POINTSupreme Court while upholding the convictions of the appellants under Sections 302, 149 IPC modifies death penalty of one and orders life term for rioters after 17 years from the date of incident.

Cases Referred (9)

VERY IMPORTANT POINT
Supreme Court while upholding the convictions of the appellants under Sections 302, 149 IPC modifies death penalty of one and orders life term for rioters after 17 years from the date of incident.