2005 Supreme(SC) 114

2005(1) Supreme 372
Supreme Court of India
(From Madhya Pradesh High Court)
K.G. Balakrishnan & Dr. AR. Lakshmanan, JJ.
State of M.P. through C.B.I. etc. —Appellants
versus
Paltan Mallah and Ors. etc. —Respondents
Criminal Appeal No. 98 of 1999
With
Criminal Appeal Nos. 99, 100-102, 103-108, 109-114 of 1999
Decided on 20-1-2005
Counsel for the Parties :
For the Appellants : Amrendra Sharan, Additional Solicitor General, Sushil Kumar, Sr. Advocate. A.D.N. Rao, A. Mariarputham, T.A. Khan, P. Parmeswaran, S. Murali­dhar, Ms Sudha Bhardwaj, Somiran Sharma, Amit Sharma, Advocates.
For the Respondents : Rajendra Singh, Surendra Singh, S.C. Dutta, K. Radhakrishanan, U.U. Lalit, Sr. Advocates, Karan Singh, Ashok Yadav, Narendra Kumar, B.L. Jain, Lalit Singh Chauhan, P.H. Parekh, Prashant Kumar, Rohan Thawani, Prasanjit Keswani, Nitin Sangra, Joseph Pookkett, Rana S. Biswas, M.P. Singh Chauhan, Shyam Dewani, Sanjay Sen, Anis Ahmed Khan, Ms. Kamakshi S. Mehlwal, Ms. Vasudha Sharma, Ms. Sarla Chandra, Prakash Srivastava, Ms. Anu Mohla, Pranab Kumar Mullick, Advocates.
For the State of Chhattisgarh : Ms. Suparna Srivastava and Rajesh Srivastava, Advocates.

Important pointThe entries in the diary and certain statements of the deceased, a trade union leader recorded on a micro cassette made in general terms apprehending danger at the hands of some industrialists, are not admissible as evidence under Section 32 of the Evidence Act.

Headnote:(i) Indian Penal Code, 1860—Section 302/120B—Evidence Act, 1872—Section 32—Niyogi Murder case—Deceased was a popular, powerful trade union leader in the industrial region of Bhillai—Deceased had been working for the welfare of labour demanding living wages, bonus, reinstatement of retrenched workers—In year 1990, there was widespread labour movement against the management of various industrial units—Management of these industrial units allegedly started opposing the labour movement—Deceased apprehended serious threat to his life from industrialists, especially from Simplex and Kedia Group of Industries—He made notes in his diary regarding the apprehension of danger from the management of these industrial units—In the night, his servant occupying the neighbouring room heard a noise like bursting of crackers and found deceased writhing in pain on his bed—Window was found open—It was found that deceased had been shot—Accused A1, A3, A4, A5 and A7 were found guilty by the Sessions Court on basis of circumstantial evidence—Division Bench of the High Court held that these circumstances were not sufficient to prove guilt of the accused—A1, A4, A5 and A7 were owners of certain industries—Sessions Judge held that there was a deep rooted conspiracy among the accused to murder the deceased—Whether entries in the diary and statements of the deceased recorded on a micro cassette were admissible as evidence u/s 32 of the Evidence Act—(No)—Acquittal of A1, A3, A4, A5 and A7 sustained—A9 convicted for offence u/s 302 IPC.

       Held : We elaborately heard the counsel for the State, counsel for the Chattisgarh Mukti Morcha and also various other counsel who appeared for the accused persons. The accused A-1, A-3, A-4, A-5 and A-7 were found guilty by the Sessions Court on the basis of the circumstantial evidence adduced by the prosecution. The Division Bench held that these circumstances were not sufficient to prove the guilt of the accused. This being an appeal against acquittal, this Court would be slow in interfering with the findings of the High Court, unless there is perverse appreciation of the evidence which resulted in serious miscarriage of justice and if the High Court has taken a plausible view this Court would not be justified in interfering with the acquittal passed in favour of the accused and if two views are possible and the High Court had chosen one view which is just and reasonable, then also this Court would be reluctant to interfere with the ­judgment of the High Court. With these ­principles in mind, we have carefully considered the evidence of the pro­secution. (Para 8)

       The Sessions Judge relied on various items of evidence to prove that there was a deep-rooted conspiracy among the accused to murder the deceased Shankar Guha Niyogi. In order to prove the conspiracy, the Sessions Judge relied on certain circumstances. One of the circumstance relied is that A-1, A-4, A-5 and A-7 had a strong motive to do away with deceased Shankar Guha Niyogi. Motive by itself is not sufficient to prove the guilt of the accused. However, the prosecution adduced extensive evidence to show that A-1, A-4, A-5 and A-7, were owners of certain industries at Durg and the trade union activities of deceased Niyogi ­created a lot of problems in running their business and caused loss to these industries. M/s Simplex is one of the factories referred to by the witnesses for the prosecution. Several witnesses were examined to prove that Simplex and Kedia Distilleries were acting against the ­interests of the workers and there were series of agitations by the workers against the factory owners. Evidence was also adduced to show that some workers were retrenched from Simplex and the agitating workers wanted the reinstatement of the retrenched workers. Some of the witnesses examined by the prosecution turned hostile and did not support this version. The overall evidence given by the prosecution would only show that some agitation had been going on against the management of these industries and the deceased Niyogi was spearheading many of these agitations. This by itself would not prove the prosecution case of conspiracy. (Para 9)

       The entries in the diary and certain statements of the deceased recorded on a micro cassette were sought to be made admissible as evidence under Section 32 of the Evidence Act. Section 32 of the Evidence Act says that the statement, written or oral, of relevant facts made by a person who is dead, are themselves relevant facts, but this statement should have been made as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death when such question comes up for consideration by the court. It is true that when such statements were made, the maker of the statement need not be under the expectation of death. But nevertheless, these statements should give either the cause of his death or any of the circumstance which led to his death. (Para 11)

       The entries in the diary and the representation Niyogi had submitted to the President of India were in general terms. He apprehended some danger at the hands of some industrialists as the agitation of the workers had been going on and in some instances the henchmen of the industrialists had unleashed physical violence on the workers. Even though he had mentioned the names of some of the accused persons in the diary and in the cassette, that by itself may not be of any assistance to the prosecution to prove the case as the entries in the diary and ­cassette do not refer to any event which ­ultimately was the cause of his death. (Para 12)

       The fact that some of these accused had absconded from the place of their business at the relevant time is also pointed out by the counsel for the appellant as an incriminating circumstance. When the murder of a trade union leader took place, there were strong allegations that the industrialists in the area had been instrumental in causing his death. Under those circumstances, if any of these accused had absconded from the place, it could not be said to be a factor to prove their guilt. (Para 17)

       Another incriminating circumstance sought to be proved against the accused is the extra-judicial confession alleged to have been made by the ninth accused Paltan Mallah wherein he named A-1, A-2, A-5 and A-6. It is alleged that he made the confession to PW-105 Satyaprakash Nishad and A-9 is alleged to have disclosed to PW-105 that these accused persons had given him money and he murdered Shankar Guha Niyogi for the sake of money. Under Section 30 of the Evidence Act, the extra-judicial confession made by a co-accused could be admitted in evidence only as a corroborative piece of evidence. In the absence of any substantive evidence against these accused persons, the extra-judicial confession allegedly made by the ninth accused loses its significance and there cannot be any conviction based on such extra-judicial confession. The High Court, in our view, has given cogent and satisfying reasons for the acquittal of the accused A-1 to A-8. We do not find any reason to interfere with such a finding, especially when this being an appeal against acquittal and this Court would be slow in reversing such a finding unless the High Court had made a perverse or erroneous appreciation of the evidence resulting in grave miscarriage of justice. The evidence adduced by the prosecution can only throw some ­serious suspicion against these accused which cannot be used as a substitute for evidence. (Para 18)

       In the case of the respondent-accused Paltan Mallah, there is overwhelming evidence to prove his complicity in the crime. The recovery of the country-made pistol at his instance, which is proved to have been used for causing the death of Shankar Guha Niyogi; and the evidence of the ballistic expert coupled with two extra-judicial confessions made to PW-105 and PW-124 support the prosecution case fully. There is also prosecution evidence to the effect that the accused had got accessibility to the weapons and that he was staying at the place of occurrence and doing various jobs. It is also established that accused Paltan Mallah is involved in other offences relating to fire-arms. Though there is no direct and convincing evidence against other accused, the case against Paltan Mallah is proved beyond reasonable doubt. He was acquitted by the High Court on fanciful reasons. The evidence of extra-judicial confessions was rejected without any valid reasons. The report of the ballistic expert also was not appreciated in the correct perspective by the High Court. In our view, the Division Bench seriously erred in acquitting the respondent-accused Paltan Mallah. (Para 38)

       In the result, we reverse the acquittal of the respondent-accused Paltan Mallah. The incident leading to these appeals had taken place as early as 1991. As there is a long lapse of time, we do not think that the sentence of death imposed upon him by the Sessions Court is justified in the circumstances. We set aside the acquittal of respondent-accused Paltan Mallah and find him guilty of the offence punishable under Section 302 IPC and sentence him to undergo imprisonment for life. (Para 39)

       (ii) Evidence Act, 1872—Section 32—Dying Declaration—Entries in diary and certain statements of the deceased recorded on a micro cassette—Admissibility u/s 32 of the Act—Entries in diary and representation deceased had submitted apprehending danger at hands of industrialists were in general terms—Even though he had mentioned names of some of the accused persons in the diary and in the cassette, that was not admissible as the entries in diary and cassette do not refer to any event which ultimately was the cause of his death—To be admissible u/s 32 of the Act, statements should give ­either the cause of his death or any of the circumstance which led to his death. (Paras 11, 12)

       (iii) Evidence Act, 1872—Section 30—Extra-judicial confession made by co-accused—Admissibility only as corroborative piece of evidence—In absence of any substantive evidence against accused persons, extra judicial confession allegedly made by co-accused loses its significance—There cannot be conviction based on such extra judicial confession. (Para 18)

       (iv) Evidence Act, 1872—Sections 25 to 27—Recovery Evidence—Accused conferred that he concealed the weapon himself—Recovery of weapon by him held admissible in evidence. (Para 26)

       (v) Criminal Procedure Code, 1973 —Sections 103, 165—Search and Seizure—Evidence obtained under illegal search—Admissibility—Discretion has always been given to the court to ­decide whether such evidence is to be accepted or not—In India, evidence obtained under illegal search is not completely excluded unless it has caused serious prejudice to the accused.

       Held : The provisions contained in Criminal Procedure Code relating to search and seizure are safeguards to prevent the clandestine use of powers conferred on the law enforcing authorities. They are powers incidental to the conduct of investigation and the legislature has imposed certain conditions for carrying out search and seizure in the Code. The courts have interpreted these ­provisions in different ways. One view is that disregard to the provisions of the Code of Criminal Procedure relating to the powers of search and seizures amounts to a default in doing what is enjoined by law and in ­order to prevent default in compliance with the provisions of the Code, the courts should take strict view of the matter and reject the evidence adduced on the basis of such illegal search. But often this creates a serious ­difficulty in the matter of proof. Though different High Courts have taken different views, the decisions of this Court quoted above have settled the position and we have followed the English decisions in this regard. (Para 31)

       The general provisions given in the Criminal Procedure Code are to be treated as guidelines and if at all there is any minor violation, still the court can accept the evidence and the courts have got discretionary power to either accept it or reject it. (Para 32)

       (vi) Evidence Act, 1872—Section 45—Ballistic Report—Admissibility—Identifiable marking coming on pellets—Recovery of 12 bore country made pistol, 13 live cartridges 12 bore, one foreign made pistol, 6 live cartridges and a motorcycle—During post mortem of deceased, three pellets were extricated from his body—Ballistic expert conducted detailed laboratory test fires and microscopic examination—He gave report wherein he opined that three lead pellets marked must have been fired from a 12 bore country made pistol—He deposed that he had prepared the report on basis of microscopic examination and he had also taken photographs of the pellets—Whether in case of country made pistol, ballistic expert could have found identifying marks on pellets—(Yes)—Whether failure to produce micro-photographs was fatal—(No).

       Held : The most important item of evidence against the accused, Paltan Mallah, is the report of the ballistic expert. PW-192, the Deputy Superintendent of Police of the CBI deposed that after the arrest of the ­appellant Paltan Mallah on 25.8.1993, he recovered one 12 bore country-made pistol, 13 live cartridges 12 bore, one foreign made pistol, 6 live cartridges of .38 bore and a motorcycle. The country-made pistol, the foreign made pistol and the cartridges were sent for examination by the ballistic expert to the Central Forensic & Science Laboratory, New Delhi. During the post-mortem of the deceased Shankar Guha Niyogi, three pellets were extricated from his body. These pellets were sent to Forensic Laboratory at Sagar and thereafter they were deposited in the court by PW-192 and these pellets were also later on obtained from the court and sent for examination by the CFSL. PW-159, the ballistic expert conducted detailed laboratory test-fires and microscopic examination and he gave Exh.P-398 report wherein he opined that three lead pellets marked P-1 to P-3 must have been fired from a 12 bore country-made pistol. He deposed that he had prepared the report on the basis of the microscopic examination and he had also taken photographs of the pellets and Exh. P-398 are the work-sheets of the report prepared by him. (Para 35)

       The evidence of PW-159 and his report are seriously challenged by the counsel for the respondent accused. He extensively referred to the text books written by foreign ballistic experts such as Burrad, Hatcher and Taylor. It was argued that in the instant case, the weapon was a country-made pistol and the barrel was not grooved and there was absolutely no question of any identifiable marking coming on the pellets to enable the expert to give any opinion whatsoever. Reliance was placed by him on the observations of this Court in Ram Avtar and Others Vs. Ram Dhani and Others (1997) 2 SCC 263 wherein this Court relied on the opinion of J.S. Hatcher in his text book of Fire Arms & Investigation to the effect that “unless there were rifling marks in the bullets which were not defaced by the entry in the bodies of the victims, no expert can ordinarily and generally give an opinion.” It was also pointed out that in the case of country-made pistol, it was difficult to assume that the ballistic expert could have found identifying marks on the pellets. The evidence given by the ballistic expert was questioned in great detail. He was cross-examined extensively by counsel for all the accused. He deposed in the cross-examination that when these pellets are fired, then they among themselves would press each other inside the barrel [on inside parts] their effect could be on one side of inner side of barrel, they will take special individual mark on them and these marks will be in the form of a line on the pellets and if the barrel is tight then pellets will be more rubbed, and on more parts, lines will come. If barrel is tight then half part of the pellets are pressed and the barrel was nicely tight and the witness himself said that in the test-fire which he did on all of the six pellets good marks of barrel had come. He had also stated that he had taken micro-photograph of only one pellet and had compared all pellets but he had not made any separate comparative record or photograph. (Para 36)

       We do not think that there was any such necessity to produce the micro photographs when the expert has given convincing reasons to support his opinion. (Para 37)