2002 Supreme(SC) 455

2002(3) Supreme 199
SUPREME COURT OF INDIA
(From Kerala High Court)
M.B. Shah and B.N. Agrawal, JJ.
Farooq @ Karatta Farooq & Ors. etc. -Appellants
versus
State of Kerala etc. -Respondents
Criminal Appeal Nos. 656-57 of 2001
With
Criminal Appeal Nos. 1049-50 of 2001
Decided on 9-4-2002
Counsel for the Parties :
For the Appearing Parties : U.R. Lalit and Sushil Kumar, Sr. Advocates, C.N. Sreekumar, Mrs. M.L. Shyjatha, Ms. Deepa S. Monappan, K.R. Sasiprabhu, John Mathew, E.M.S Anam and Fazlin Anam, Advocates.

IMPORTANT POINT
Although Accused 1 (Farooq) and Accused 2 (Sathar) are properly identified at least by one of the eye-witnesses for the offences under Section 302/34 IPC which they have committed in a broad day light at the jail gate when the victim was in judicial custody but the extreme penalty of death was not called for in the facts and circumstances of case and the same is commuted to life imprisonment.

Headnote:(i) Indian Penal Code, 1860-Sections 302 r/w 34, 302/120B, 302/109, 307 r/w 34, 324 r/w 34-Explosive Substances Act-Sections 3 and 5 -Offences under-Nine accused were tried for murder by criminal conspiracy etc. by explosive committed in a broad day light at the jail gate when victim was in judicial custody causing fatal injuries to police and passerby-Four convicted (A1, A2, A7 and A8), 2 acquitted (A3 and A9), 3 absconding (A4, A5 and A6) (their trial separated)-Appeals against conviction (Paras 1 to 4)-Factum of occurrence not challenged but their participation in crime challenged for lack of proper identification (Para 5)-Accused No.1 (Appellant Farooq) alleged to be identified by PW2 (S. Ramachandran Nair), PW5 (S. Anil Kumar) and PW14 (N. Madhusoodhanan)-PW 2 was disclosed name of appellant by Police-PW14 was also shown the accused in Jail-PW5 consistently supported prosecution case-Result-Accused 1 properly identified only by PW5 (See Para 5)-Accused No. 2 (Appellant Sathar) alleged to be identified by PW7 and PW13 awarded different sentences including death penalty to A1 and A2-PW 7 was not found reliable-But PW13 was found reliable (Para 6)-Result-Conviction of accused 1 and accused 2 sustained. (Para 10)

       Held : Thus, in Criminal Appeal Nos. 656-57 of 2001, we are called upon to examine evidence showing complicity of the four appellants with the crime and consider their cases individually. Appellant Farooq (accused No.1) is said to have been identified by prosecution witnesses, namely, S. Ramachandran Nair (PW2), S. Anil Kumar (PW 5) and N. Madhusoodhanan (PW 14). PW 2 claimed to be an eye witness of the alleged occurrence. In examination-in-chief, he claimed to have identified this appellant but in cross-examination, the witness had no option but to admit that he could not tell name of this appellant to the police which disclosed to him name of this appellant. It shows that the so called identification of this appellant by the witness is farce and cannot be relied upon. PW 5 claimed to be the eye witness of the occurrence as he had gone to the lottery shop belonging to PW2 to check the lottery result as he had taken a lottery ticket. He claimed to have witnessed the occurrence from a distance of 25 feet only and knew this appellant from much before and identified him by name. The evidence of this witness was assailed on two grounds, firstly, that though, he went to the lottery shop of PW2 and met him but PW2 in his evidence is silent about the presence of this witness in his shop at the time of the alleged occurrence. This is a mere omission and the same itself cannot affect the veracity of the witness if his evidence is otherwise found to be credible. Secondly, it has been submitted that the witness did not tell anything about the incident even to his wife. In our view, non disclosure of this fact by the witness to anybody cannot alone be a ground to discredit his evidence especially when the offence had been committed in a broad day light at the jail gate when the victim was in judicial custody, people were panicky and, therefore, if a witness could not dare to disclose the factum to anybody, the same cannot show that his conduct was unnatural. This witness has consistently supported the prosecution case in all material particulars and there is no reason to discard his evidence. PW14 also claimed to be the eye witness of the alleged occurrence. According to him, he did not know the accused from before but he identified him in Court. This witness had gone to the watch shop for taking his watch which was given for repair and when he was in front of the shop, he found four persons came in a car including this appellant and they were looking towards the Sub Jail. After the incident, it was said that this appellant got into the back seat of the car. The witness has stated during the course of cross-examination that he did not know the appellant from before but the police called him at the police station and got this appellant identified inasmuch as disclosed name of the appellant before this witness. This being the position, no reliance can be placed upon evidence of the witness on the question of participation of this appellant. Thus, so far as appellant No. 1 is concerned, it is not possible to place reliance upon the evidence of PWs 2 and 14 on the question of participation of this appellant but the evidence of PW 5 is unimpeachable. Now, we consider the evidence against appellant Sathar (accused No. 2) who is said to have been identified by G. Chandrasekharan Nair (PW7) and K. Sajilal (PW 13) and out of whom, PW7 claimed to be the eye witness of the occurrence. He claimed that one person of short stature who had a plastic kit in his hands and took a bundle from inside the said kit and made over the same to the tall person meaning thereby this appellant who is said to have hurled bomb at the prisoner Kabir who was in judicial custody which hit him and he succumbed to the injuries. It has been further stated that after hurling the bomb, this appellant was found fleeing with a chopper in his hands. It appears that this witness has introduced the story for the first time in Session Court that a person of short stature had made over explosive substances to this appellant describing him as a tall person as he did not make any such statement before the police as it appears from the evidence of the investigating officer V.B. Ramesh Kumar (PW 79). In Court, when the chopper was shown to the witness, first he denied the chopper to be the same one which was carried by this appellant but later on he admitted the same to be the chopper which was carried by this appellant. The witness has admitted that during investigation, when he went to the police station two weeks after the incident, the police showed him the chopper which was in the hands of this appellant. These facts make the evidence of this witness on the question of participation of this appellant highly doubtful especially when undisputedly this accused was not known to the witness from before. PW 13 stated that he had a shop and had gone for purchasing bananas and after purchasing, when he was returning in an auto rickshaw and passing through the place of occurrence in front of the Sub Jail, there was sound of explosion and he found that this appellant was running away with a chopper in his hands. The witness specifically admitted that he knew this appellant since last five to six years and he was found running with a chopper and mounted on the back seat of motor cycle parked in front of Buhari hotel immediately after the incident. It has been submitted that the driver of the auto rickshaw who was the most competent person to prove the presence of this witness at the place of alleged occurrence has not been examined. In the case on hand, we find that this witness has supported the prosecution case consistently in all material particulars and nothing could be pointed out to create doubt regarding veracity of his evidence, therefore, merely because driver of the auto rickshaw was not examined, his evidence cannot be thrown out. Thus, so far as the appellant No. 2-Sathar is concerned, it is not possible to place reliance of evidence of PW7 but so far PW 13 is concerned, his evidence is free from any doubt. (Paras 5 and 6)

       (ii) Death Penalty to Accused 1 (Appellant Farooq) and Accused 2 (Appellant Sathar)-Whether covered by rare of the rarest cases? (No)-Result-death penalty reduced to life imprisonment.

       Held : Next question which is to be considered is as to whether the High Court was justified in upholding the death penalty imposed against appellant Farooq and appellant Sathar. Reference in this connection may be made to the Constitution Bench decision of this Court in the case of Bachan Singh v. State of Punjab, AIR 1980 SC 898, as well as, following the same, three Judge Bench decision of this Court in Machhi Singh & Ors. v. State of Punjab, 1983(3) SCC 470, wherein various circumstances have been enumerated and it was laid down that if the case squarely falls within its ambit, only in that eventuality, death penalty can be awarded. It was observed that in rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise retaining death penalty, such a penalty can be inflicted. In the facts and circumstances of the present case, it is not possible to come to the conclusion that the present case would fall within the category of rarest of rare one. Therefore, we are clearly of the opinion that in the fitness of things, extreme penalty of death was not called for and the sentence is fit to be commuted to life imprisonment. (Para 8)

       (iii) Identification of other two convicted accused 7 (Ayoob) and Accused 8 (Hashim) in same occurrence by PW2, PW5 and PW14-Accused were shown and their names disclosed by Police-Not reliable witnesses-Result their conviction and sentences set aside. (Paras 7 to 10)

       Held : Lastly, we proceed to consider the case of appellants Ayoob (accused No. 7) and Hashim (accused No. 8) who are said to have been identified by S. Ramachandran Nair (PW 2), S. Anil Kumar (PW 5) and N. Madhusoodhanan (PW 14). These two appellants were not known to any of these witnesses. PW2 claimed to have identified them but during cross-examination, he specifically admitted that the police told him the names of these appellants at the police station. PW 5 stated in his evidence that when he went to the police station to give his statement, these appellants were shown to him. PW 14 in his examination-in-chief, though claimed to have identified these appellants but during the course of re-examination, he admitted that these accused persons were shown to him and the police got them identified at the police station. Thus, so far as appellant Nos. 7 and 8 are concerned, in our view, it is not possible to place reliance upon the evidence of any of three witnesses and there being no other evidence to show their complicity with the crime, it is not possible to uphold their convictions. (Para 7)

       (iv) State s appeal against acquittal of Accused No. 3 (Manaf) and Accused No. 9 (Sulaiman) in same factum of occurrence-No infirmity shown-Not possible to interfere (Para 9)-State s appeal dismissed. (Para 10)

       Held finally (in both set of appeals) : In the result, Criminal Appeal Nos. 656-57 of 2001 are allowed in part so far as it relate to appellants Farooq and Sathar and while upholding convictions and sentences of imprisonment awarded against them the sentence of death penalty is commuted to imprisonment for life. We direct that all the sentences awarded against these appellants shall run concurrently. Appeals of appellants Ayoob and Hashim are allowed, their convictions and sentences are set aside and they are acquitted of all the charges. These appellants who are in custody are directed to be released forthwith, if not required in connection with any other case. Criminal Appeals Nos. 1049-50 of 2001 fail and the same are, accordingly, dismissed. (Para 10)