1995 Supreme(SC) 644

SUPREME COURT OF INDIA
M.M. PUNCHHI AND K. JAYACHANDRA REDDY, JJ.
Shamshul Kanwar, Appellant
Versus
State of U.P., Respondent.
Criminal Appeal No. 887 of 1994 (with Cri. A. Nos. 888 and 889-91 of 1994 and 270-275 of 1995)
Decided on 4-5-1995.

Headnote:(i) Criminal Procedure Code, 1973 - Section 172 - Scope of - Nature of entries to be made in General diary as required u/s. 172 - Limited permissible use by court or by accused indicated therein - Vagueness as to nature of diary contemplated u/s. 172 - Some vagueness or confusion is there in respect of meaning of word diary used in Sec. 172 and other Sections of Cr. P.C. - A legislature change is necessary providing for framing of appropriate and uniform regulations regarding maintenance of diaries by police for purpose contemplated by Section 172 vis-a-vis other sections.

       Held, that the diary referred to in Section 172 and which the court may call for and which can be used to the limited extent mentioned therein obviously refers to the first part and to the copies of which the accused is not entitled to and the entries of which an be used to the limited extent by the court as well as by the accused as contained in Section 172 Cr. P.C. If by virtue of such police standing orders, the second part also forms compendiously part of the diary as a whole and if that also is before the court, the use of the entries in such second part which contains the statements of the witnesses recorded, would be of different nature. In some States for instance Uttar Pradesh there are regulations regarding the maintenance of general and case diaries. Section 161 Cr. P.C. provides for examination of witnesses by police. It a further lays down that the police officer during investigation may examine the witnesses and may I reduce into writing any statement made to him in the course of such examination and if he does so he shall "make a separate and true record" of the statement of each such person. Section 162 lays r down that no such statement made by any person to a police officer shall if reduced to writing be signed "nor shall any such statement or any record there of whether in a "police diary" or otherwise" be used for any purpose at any inquiry or trial save as provided under that Section. The words "police diary or otherwise" used in this Section have perhaps been the basis for dividing the diary into two parts. Section 167, an important provision, deals with the procedure when investigation is not completed within 24 hours and provides for production of the accused before a magistrate for seeking remand. This provision also lays down that the officer incharge of a police station or the police officer making the investigation "shall I forthwith transmit to the nearest judicial magistrate a copy of the entries in the diary hereinafter prescribed relating to the case" and at the same time forward the accused to such magistrate. Likewise sub-section (2 a) of Section 167 which provides for production of the accused before an executive magistrate lays down that the copy of the entry in the diary "hereinafter" prescribed relating to the case shall be transmitted while, forwarding the accused. The object underlying is that the magistrate before remanding the accused to custody should satisfy himself that there is a primafacie case for doing so after a perusal of the copies of the entries "in the diary". We are referring to this aspect only to point out that some vagueness or confusion is there in respect of the meaning of the word "diary" used in Section 172 and other Sections of Cr. P.C. and we suggest that a legislative change is necessary providing for framing of appropriate and uniform regulations regarding the maintenance of the diaries by the police for the purpose contemplated by Section 172 Cr. P.C. vis-a-vis the other sections referred to above. (Para 13)

       Further held: Now coming to the position in the present case on this aspect we do not find anything on the record to show as to how Ex. Ka-124 the entry in the general diary came on record. It is nowhere endorsed in the deposition of P.W. 20 that he used the same for refreshing his memory or the court used it for contradicting P.W.20 with reference to the entries in the diary. It is just mentioned that Ex. Ka-l24 is marked. Thereafter we find a lengthy cross-examination on the basis of the contents of Ex. Ka-124 which is impermisible for the abovesaid reasons. In any event P.W. 20 has rightly asserted that no further details need be mentioned in the entry in the general diary, Ex. Ka-124. It may be mentioned at this stage that P.W. 20 as a police officer left the police station under the orders of his superior to give protection to the funeral party. Therefore he was on duty and in respect of the same he made the necessary entries in the general diary. Being a witness to the occurrence he was examined by the investigating officer, P.W. 8 under Section 161 Cr. P.C. There is very little cross-examination of P.W. 20 with reference to the contents of his statement under Section 161. On the other hand, the whole cross-examination proceeded on the basis of Ex. Ka-l24 by the learned defence counsel pointing out that the details given by him regarding the occurrence as an eye-witness are not there in Ex. Ka-124. As explained above this is not the scope of the use of the entries in the diary as provided under Section 172 Cr. P.C. At this stage we have to point out that strictly speaking Ex. Ka-124 cannot be said to be an entry in case diary within the meaning of Section 172 Cr. P.C. nor it is a statement recorded under Section 161 Cr. P.C. P.W. 20 as an officer on duty made that entries in the diary kept in the Station which is also called general diary and different from "case diary". However, having regard to the way this document has been used in the case we are constrained to go into the scope of Section 172 Cr. P.C. and the nature of the entries to be made in the respective diaries. For all these reasons we are unable to agree with the learned counsel that P.W. 20 was not an eye-witness and that he was also subscribing to the version given by the interested witnesses. The evidence of P.W 20 amply corroborates the evidence of the other eye-witnesses whose presence at the scene of occurrence cannot be doubted. (Para 15)

       (ii) Indian Penal Code, 1973 - Sections 302/149 - Unlawful Assembly - Rioting of grave nature - Scope of Sec. 149 - Eye-witnesses Concurrent finding that accused persons formed into an unlawful assembly with common object of attacking and killing members of opposite party - Their names mentioned in FIR - Eye-witnesses deposed that they were present at scene of occurrence duly armed - Specific overt acts attributed to six of them - Held, in an occurrence of this magnitude where several persons participated, such of those accused who come to scene of occurrence armed with lethal weapons and proceeded to participate in attack, shared common object of unlawful assembly - They would be liable u/Ss. 329/149 - To infer common object it is not necessary that each one of them should have participated in attack. (Para 20)

       (iii) Indian Penal Code, 1860 - Sections 148, 302/149, 307/149 and 332/149 - Appeal against conviction - Unlawful Assembly - Each one of these convicted accused being member of unlawful assembly - Evidence of eye witnesses corroborated by medical evidence - High Court altered sentence of death to imprisonment for life in respect of five of accused - Death sentence of A-1 confirmed - State appeal for awarding death sentence to all accused - Rioting of grave nature inspite of presence of police party - 10 persons on side of prosecution died Enmity between parties - Accused were aggressors - However, it being not a case of rarest of rare cases - No reason to award death sentence to five accused - Considering faits and circumstances death sentence awarded to A-1 should also be reduced to imprisonment for life.

       Held: This is a case arising out of acute faction. It is unfortunate that inspite of the presence of the police party a rioting took place. It is clear from the prosecution case that the prosecution party in large number alongwith four gunmen from Dariyapur whose services were enlisted and also the armed police party proceeded to the village under the umbrella provided by the Labour Minister and Pradhan of Village Dariyapur to bury the dead body of the old lady. The evidence of P.W. 20 also shows that there was tension. The way the prosecution party went to the Village in gusto with a spirit of bravado itself indicates that there must have been some provocative acts which created the tension particularly in the background of the acute faction. As already pointed out nothing happened for quite some time and it is also the case of the prosecution that the accused did not interfere with the burial. It is only thereafter that some incident triggered off in firing by the accused persons. Unfortunately 10 persons on the side of the prosecution died. The large number of deaths on one side cannot ipso facto be a ground to bring the case in to the category of "rarest of rare cases" particularly when we take into consideration the other aspects. (Para 23)

       Further held: It is pertinent to note that none of the accused caused any injuries to any of the policemen. No doubt prosecution alleged that one Constable Kanshi Ram received a stray pellet injury which is simple. However, he was not even examined. Admittedly the police fired and caused the death of one of the accused persons. Yet there is nothing to show that the accused acted cruelly and attacked them. To that extent they manifested a sense of restraint. No doubt we have held that the accused were the aggressors. But aggression again could also be due to provocation, resulting in a disturbed and agitated state of mind. Many a time, in such a situation, heat of passion would be the mob of the man that commits a riot on his reason and does not look beyond the moment of its existence, causing disappearance of the sense of reasoning. (Para 24)

       Consequently held: Having given our earnest consideration to the facts and circumstances of the case and particularly to the background and the nature of the occurrence and the atmosphere in which the occurrence took place, we do not think that we should interfere and award death sentence to these five accused at this distance of time. It cannot be said that the reasons given by the High Court are wholly irrelevant particularly when viewed from the angle of the concept of "rarest of rare cases". (Para 26)

       Finally held: Now coming to the death sentence awarded to A-1, the question is whether the reasons given by the High Court would bring his case in the category of "rarest of rare cases"? One of the reasons given by the High Court is that he was the Pradhan of the Village and he incited others. In the earliest report it is mentioned that A-1 said in a loud voice that the prosecution party would be taught a lesson for entering the Village and that it was A-2 who declared that none of the enemies should be allowed to go alive. Learned counsel for the accused also pointed out that in Ex. Ka-124 namely the general diary it is not mentioned that A-1 gave any such incitement and that on the other hand it is mentioned that A-1 and his party men surrounded and began to fire. We have perused Ex. Ka-124 and as pointed out we do not find any such incitement by A-1 having been mentioned there. Though we are not using the same as evidence but by way of taking aid in the matter of awarding sentence, we are referring to the same. That apart it has to be noted that for quite some time nothing happened. The presence of four gunmen, of Village Dariyapur and the provocative gusto in which the funeral procession took place must have created lot of tension and all the persons belonging to the accused party in the Village who had bitter enemity against the prosecution party because of the earlier murder must have all gathered and it cannot definitely be said that it was only because of the lead given by A-1 the firing took place. That apart, A-1 who was armed with a rifle fired only once simultaneously alongwith A-2 as a result of which each one of two deceased persons Shabir Hussain and Munnawar Hussain received one fire-arm injury and no other overt act is attributed to him. It is not definite as to whose shot hit whom. One of the deceased persons namely Munnawar Hussain had only one fire-arm injury and the other deceased Shabir Hussain also had one fire-arm injury as well as several incised injuries and the Doctor who conducted post-mortem on the dead body of Shabir Hussain opined that his death was due to shock and haemorrhage as a result of ante-mortem injuries thereby indicating that the death was not entirely due to fire-arm injury which can as well be attributed to the shot fired by A-1, Shamshul Kanwar. Therefore it is not established that the rifle shot fired by A-1 alone was responsible for causing the death of Shabir Hussain, deceased. The prosecution case is that apart from A-1 and A-2, one Vihlyat Hussain was also armed with rifle and he fired. The High Court, however, acquitted Vilayat Hussain on the ground that he must have fired just a little later and thus was not responsible for causing any rifle shot injuries to either of the two deceased persons. In this context the inference drawn by the High Court is that only two rifle shots were fired one each by A-1 and A-2. However, the medical evidence also is not definite whether there were other fire-arm injuries on anyone of the deceased which can be attributed to rifle shots. That only shows that A-1, even if the prosecution case is to be accepted, shot only once and as discussed above it is also not clear whether it alone proved to be fatal, if we take the injuries on deceased No.2 and the cause of his death. We are only pointing out these circumstances to show that A 1 did not act in a cruel and diabolical manner so as to bring his case with ill the meaning of "rarest of rare cases". No doubt in the present depositions, P.Ws. 1 to 4 stated that A-1, gave incitement. They were all interested witnesses and normally there would be tendency to give a leading role to the leader. We think it cannot definitely be concluded that A-1 was at the command or he had full control as to stop the other members from indulging in violence. In the background mentioned above, infuriation was common to every one member of the accused party who were closely related to each other particularly in the background of bitter enemity mentioned above. Therefore ill that situation they could have become uncontrollable. Having given our earnest consideration we arc not able to separate the case of A-1 for awarding death sentence and the reasons given by the High Court namely that A-1 was Pradhan in commanding position etc. do not aggravate the case against A-1. (Para 27)