2017 (2) TMI 1544 - SC - Indian Laws

Commutation of death sentence of Sheikh Shamsul and Sheikh Gheyas, to imprisonment for life - conviction confirmed - interpretation of Section 172 of Code of Criminal Procedure, 1973 - veracity of the evidence adduced - relevance of overt act in conviction Under Section 149 of the Penal Code - rarest of the rare cases theory for confirming death sentence. HELD THAT - While upholding the judgment and order of conviction passed by the Trial Court, the High Court has primarily relied upon the evidence of eye-witnesses, PW14, PW4, PW5 and PW9 who were found to be trustworthy and reliable. The High Court held that the Accused were sharing the common object of doing away the deceased. However, from a perusal of the cross examinations of PW4 and PW5, it appears that there was personal enmity and PW3, PW4, PW14 were made Accused in a case of murder of Asfak, son of Sheikh Samsul, Appellant herein. PW14 had also filed a case Under Section 307 of Indian Penal Code against the Appellants two years prior to the date of the incident which was still pending. It is seen in the instant case that the witnesses have vividly deposed about the genesis of the occurrence, the participation and involvement of the Accused persons in the crime. The non-examination of the witnesses, who might have been there on the way to hospital or the hospital itself when deceased narrated the incident, would not make the prosecution case unacceptable - prosecution case has been proved by the testimony of the eye-witness since corroborated by the other witnesses of the occurrence. In the instant case, the witnesses, as the High Court has found and there are no reason to differ, are reliable and have stood embedded in their version and remained unshaken. They have vividly deposed about the genesis of occurrence, the participation and involvement of the Accused persons in the crime and the injuries inflicted on the deceased, and on each of them. The present appeals are devoid of merits and the judgment passed by the High Court does not warrant interference - Appeal dismissed.

Summary

Issues Involved:
1. Interpretation of Section 172 of the Code of Criminal Procedure, 1973.
2. Veracity of the evidence adduced.
3. Relevance of overt act in conviction under Section 149 of the Indian Penal Code.
4. Application of the "rarest of the rare cases" theory for confirming the death sentence.

Issue-wise Detailed Analysis:

1. Interpretation of Section 172 of Code of Criminal Procedure, 1973:
The High Court observed that the police diary cannot be used as evidence in the case but can aid in such inquiry or trial. This observation was based on the precedent set in *Habeeb Mohammad v. State of Hyderabad* (AIR 1954 SC 51), which held that when a witness's attention is not drawn to their previous statement during the investigation, the statement cannot be considered under Section 172(2) of the Code of Criminal Procedure.

2. Veracity of the Evidence Adduced:
The High Court noted that the failure of witnesses to go to the police station and lodge the report on time, along with minor contradictions about the presence of customers at the shop, did not affect the prosecution's case. The court found the testimonies of eye-witnesses (PW14, PW4, PW5, and PW9) to be trustworthy and reliable, despite personal enmity and previous cases filed by the informant against the accused. The court emphasized that oral evidence should only be viewed with suspicion if it contradicts previous statements.

3. Relevance of Overt Act in Conviction Under Section 149 of the Indian Penal Code:
The High Court distinguished between the judgments in *Shambhu Nath Singh v. State of Bihar* (AIR 1960 SC 725) and *Ram Dular Rai and Ors. v. State of Maharashtra* (1961 SCR (2) 773), both discussing Section 149 of the Indian Penal Code related to unlawful assembly. The court held that the prosecution case could not be rejected merely because the informant was left unharmed or not all appellants entered the shop. The court found that the overt act of acting and omitting with regard to the common object was proven after evaluating the evidence.

4. Application of the "Rarest of the Rare Cases" Theory for Confirming Death Sentence:
The High Court, while relying on earlier judgments in *State of Bihar v. Sanjeet Rai and Anr.* (2006 (4) PLJR 479) and *State of Bihar v. Prajeet Kumar Singh* (2006 (2) PLJR 656), rejected the death reference. The court held that the case did not fall under the "rarest of rare cases" category, thus commuting the death sentence of Sheikh Samsul and Sheikh Gheyas to life imprisonment.

Additional Considerations:
The Supreme Court upheld the High Court's judgment, noting that the evidence of the eye-witnesses was reliable and corroborated by other witnesses. The court dismissed arguments that the prosecution's case was shrouded with reasonable doubt due to material improvements in testimonies or lack of specific roles attributed to the appellants. The court emphasized that the testimony of an injured witness stands on a higher pedestal and should be relied upon unless there are strong grounds for rejection.

Conclusion:
The Supreme Court found no merit in the appeals and upheld the High Court's judgment, confirming the conviction and life imprisonment sentences. The court reiterated that the prosecution had established the appellants' active participation in the unlawful assembly and the common object to assault the deceased. The appeals were dismissed, affirming the findings and sentences of the lower courts.