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TMI Blog2001 (4) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... nch 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. 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. 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) besid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licated appellant Naso. It must be pointed out that the trial court and the High Court have concurrently accepted the evidence of PW-24 (Md. Hadis Khan) as reliable. Normally the Supreme Court would not upset such a finding unless it is shown that his evidence is afflicted with such serious infirmity. The positional importance of PW-24 (Md. Hadish Khan) as a witness for the occurrence is significant. The incident happened in his own house and in his presence. He would thus be one of the most natural witnesses to speak about what happened in front of him. We are not told of any cause for PW-24 to have any bias against appellant Naso for falsely implicating him nor are we told of any difficulty for PW-24 to identify Naso as one among the assailants particularly when the witness ascribed a specific serious role to that accused. His evidence has secured corroboration from the testimony of his father PW- 21 Abdul Latif who said that his son told him that Deputy Commissioner of Police took shelter in his house and that appellant Naso and some other persons (whose names were also mentioned) assaulted him. Such evidence of PW-21 is admissible under Section 157 of the Evidence Act as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the others caught him, I too caught him. Then Naso hit him with an iron rod on his head, but his helmet fell off. Naso hit him again and then the policeman fell down. Puttan and Akhtar also dealt blows on him with deadly weapons. As I could not stand the gushing of blood I left the room. Shri A.K. Ganguli, learned senior counsel raised a three-pronged attack on Ext.13. Firstly, he said it did not amount to a confession at all. Second is, even assuming that it is a confession it cannot be relied on as the statement was not voluntary. Third is, even if it can be acted on as a confession it is insufficient to convict its maker for the offence under Section 302 read with Section 49 IPC as the confessor never said that there was a common object to murder the police officer. Alternatively, he contended that there is nothing in Ext.13 to show that the confessor shared any knowledge with any others, much less a common object to murder a police officer. Dealing with the first point we have no doubt that the statement (Ext.13) attributed to accused Lokeman Shah, does incriminate himself very much. At any rate it is not exculpative despite the possibility of reading one or two senten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipation of the accused person in the crime must be separately and independently corroborated, nor is it essential that the corroboration must come from facts and circumstances discovered after the confession was made. Dealing with the contention that a confession was not voluntary learned senior counsel invited our attention to a fact that one of the persons arrested along with the appellant died in the lock up (his name is Idris) and that would give sufficient indication as to the physical torture which the persons involved in this case would have been subjected to. Unfortunately neither the prosecution nor the defence could show how Idris died when he was in police custody. The defence did not even bother to ask the investigating officer about the result of the inquiry conducted by a magistrate under Section 176 of the Code of Criminal Procedure, regarding the death of Idris (if he had died while he was in the lock up the afore-mentioned provision mandates that the inquiry should be conducted by a magistate). In the absence of any such material it is too late in the day for this Court, particularly dealing with the appeal under Article 136 of the Constitution, to use the deat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aching the supposition that a certain fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting on any important matter concerning him. [vide M. Narsinga Rao vs. State of A.P. {2001 (1) SCC 691}]. It is within the radius of permissibility that court can rely on a factual presumption for the purpose of reaching one conclusion. Thus, the confessional statement, if admissible and reliable, can be used by the court for drawing inferences as to whether the confessor shared the common object with the rest of the members of the unlawful assembly. For that purpose the court will take into account other materials available in evidence. 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. Section 149 of IPC consists of two parts. The fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an act committed in prosecution of the common object of the unlawful assembly. Nor can the remaining accused be imputed with the knowledge that such an offence was likely to be committed in prosecution of the common object of the assembly. In Samant vs. State of Maharashtra (AIR 1979 SC 1265) this Court observed that it is an over statement of law that when a morcha moved on to a stage when it became unlawful any person who was a member of that morcha must be presumed to share the common object of the unlawful assembly. The court must enter satisfaction that a particular accused was a member of the unlawful assembly either through his active participation or otherwise. It must further be shown that he shared the common object of the assembly. Of course the court can draw necessary inference from the conduct, but mere presence in the assembly is hardly sufficient to draw any adverse inference against him. The question whether or not the offence having been committed in prosecution of the common object of the assembly is one of the fact, depending upon facts and circumstances of each particular case. In this context it is appropriate to refer to Section 142 of the IPC. It pertain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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