State Of Bihar v. Md. Zahid @ Commando @ Md. Zahir Anjum
2010-12-22
DHARNIDHAR JHA, MRIDULA MISHRA
body2010
DigiLaw.ai
JUDGEMENT Dharnidhar Jha, J. 1. The present death reference and the connected criminal appeal arise out of judgment of conviction dated 24.3.2010 passed by the Presiding Officer of Fast Track Court No. III, Saharsa jointly in a set of four Sessions Trials in which 24 accused persons including Appellant Md. Zahid alias Commando @ Md. Zahir Anjum were put on trial. While the present Appellant was convicted of committing the offence under Section 302 of the IPC, the remaining accused persons, i.e., 23 other accused were acquitted of various charges. After hearing the Appellant on sentence on 1.4.2010 the learned trial Judge directed the Appellant to be hanged by his neck till he was dead. The sentence of death requiring the confirmation from this Court, the records were directed to be submitted to this Court and that gave rise to the present Death Reference. 2. The solitary Appellant Md. Zahid @ Commando @ Md. Zahir Anjum Respondent in the Death Reference also preferred the appeal under reference. 3. Both the matters were heard together and are being disposed of by the present common judgment. 4. Late Satyapal Kumar Singh was the Deputy Superintendent of Police and was posted in the district police headquarters, Saharsa. He had some information that a group of criminals headed by the present Appellant Md. Zahid @ Commando @ Md. Zahir Anjum wanted in many cases of murder dacoity, robbery and other offences of serious nature, were hiding in the double storey-building(Basa) of Md. Zafar Alam(an accused since acquitted)situated at village Nonha Chamarahi and they might commit other serious offences if prompt action was not taken against them. The deceased Dy. S.P. summoned the informant Shailesh Mishra (P.W.13) to his office where he found other police officers, like, Sub-Inspector (SI for short), Kuldeep Paswan, Officer-in-Charge of Salakhua police station, S.I. Shiv Kumar Singh(P.W.20), Officer-in-Charge of Bakhtiarpur police station, S.I. Rampravesh Singh(P.W.21), Officer-in-Charge of Sonbarsa Kutchery police station and S.I. Devesh Jha (not examined)of Bakhtiarpur police station also present at the residence of the deceased Dy. S.P. The deceased related the above information to the informant and other Officers and constituted a raiding party. Three sections of armed police forces were requisitioned from the police lines, Saharsa and all the officers headed by the deceased Dy. S.P., started for their destination at 11 P.M. so as to carrying out the raid and arresting the criminals.
S.P. The deceased related the above information to the informant and other Officers and constituted a raiding party. Three sections of armed police forces were requisitioned from the police lines, Saharsa and all the officers headed by the deceased Dy. S.P., started for their destination at 11 P.M. so as to carrying out the raid and arresting the criminals. They crossed rivers and reached the house where the criminals had hidden themselves at about 4.30 A.M. The police force laid a seize around the house at 6.30 A.M. The Dy. S.P. along with some officers, like, the officer-in-charge of Salakhua police station, attempted to get the doors of the house opened. Some criminals peeped down from the top of the house and Chaukidar Yogendra Sharma(P.W.24)and Chaukidar Saryug Tanti(P.W.23)as also constable Md. Azam(not examined due to his death), identified the present Appellant Md. Zahid @ Commando @ Md. Zahir Anjum and few others, like Md. Maheed, Md. Anjum, Md. Guddu, Md. Imo whereas others 2-3 criminals could not be identified. 5. The Dy. S.P. started commanding the criminals to surrender by shouting out that if they did not surrender, each one of them had to be shot dead. Hearing this, the criminals started firing indiscriminately at the police party. The Dy. S.P. also directed his accompanying police force to return the fires and himself fired two rounds from his revolver. During the course of firing and cross-firing P.W.5 Hawaldar Ganesh Rajak was hit by gun shot on his belly and right hand and he became injured. The criminals kept firing at the police party and the Dy. S.P. also egged on his police force to give a fierce fight and kill each and every criminal and, accordingly, the police force kept returning the fire. Some criminals also arrived there in help of the criminals already atop the building and started firing at the police force from south- west and east-south. In the meantime, Additional Superintendent of Police, Sadar, Saharsa, Sri Anil Kishore Yadav (P.W.19) also reached there with reinforcement with S.I.J.B. Prasad, Officer-in-Charge of Sonebarsa, S.I. Sushil Kumar Yadav, Officer-in Charge of Bihara, S.I. Nirmal Kumar, Officer-in-Charge of Bangaon police station and they along with their respective forces retaliated firings by other criminal groups from south west and east upon the police force.
Due to the firing made by the additional force which had reached and which had fired at the criminals who were firing from the ground, they started running away as a result of which Dy. S.P. again asked his force to keep attacking the criminals and himself came into the house with tiled roof from the pucca house occupied by the criminals and kept firing at the criminals along with the police force. In the meantime, a shot fired by the criminals hit the Dy. S.P. Satyapal Singh in his chest and he fell down there and when the informant rushed to take care of the Dy. S.P. he found that S.I. Ram Pravesh Singh (P.W.22) was also injured. The informant shouted about the Dy. S.P. being injured by a shot fired by the criminals. All the policemen came together to take care of the Dy. S.P. Taking advantage of the situation, the criminals ran away from there after getting down the roof top of the house towards south and west. The Dy. S.P. died there. 6. Chaukidar (P.W.10) and Dafadar (P.W.9) came and pointed out the names of other criminals belonging to the gang of one Kailu Miyan, who had fired at the police party. The informant stated that the house in which the criminals had hidden themselves was searched. Nine empties .30-0.6 ammunition from the roof top, a diary from a room and a few letters written in Hindi and Urdu were duly seized. 7. The written report(Ext-2) about the incident was presented by P.W.13 S.I. Shailesh Mishra, Officer-in-Charge of Salakhua police station, as a result of which Salakhua P.S. Case No. 91 of 1998 was registered by drawing up the FIR, Ext-10. The investigation was handed over to S.I. Kuldeep Paswan(P.W.22) and he, accordingly, investigated the case by recording the statements of witnesses. He held inquest upon the dead body of the Dy.S.P. Satyapal Singh and inspected the place of occurrence. 8. It was double-storey house which was belonging to Jafar Alam, who has been acquitted and there was another house with roof of tiles. A river was flowing east of it from north to south. On the eastern side of the same river started the territory of Khagaria district and on the western embankment of the river, was boundary of Saharsa district.
A river was flowing east of it from north to south. On the eastern side of the same river started the territory of Khagaria district and on the western embankment of the river, was boundary of Saharsa district. The Nonha Chamrahi Tola was situated north -east of the place-of-occurrence-house and there were a number of Jhoparies as also some partly built Indira Aawas. To the north-west of the house was village Harahi and towards the north-east of the same was village Kajari. The main Nonha village was situated in the south eastern direction of the house. The villages around the double storey building were at a distance of 2-3 kilometers from it and the lands surrounding the place of occurrence house was vacant agricultural fields. There was a state boring situated north west of the house. There were marks created by gun shots on its wall as also on the wall of the house with roof of tiles. The parapet of the house which was about three feet in height had vacant spaces into it in 6"x6" dimension. 9. There was a big room on the western part of the house in which grains were found stored. A door was fixed in the eastern wall of the room through which one could go towards the east or could mount the stairs for reaching at the top of the house. There was a verandah on the southern side of the house. Seeds and fertilizers were found kept there. There was another room on the eastern side of the verandah to which was fixed another door on its northern side which connected this room with another room situated on the north. There was a lavatory just east of the stair case and it was found fitted with a door. Blood was found on the eastern door of the house. 10. Another house with roof of tiles was found situated at a distance of 40-50 yards from the main double storey-building. There was a small room on the northern side of the house in which there was a hearth. There was another room on the southern side of this house in which fodder was found stored. On the eastern side of the house was a verandah in which pegs were found fixed for teethering animals.
There was a small room on the northern side of the house in which there was a hearth. There was another room on the southern side of this house in which fodder was found stored. On the eastern side of the house was a verandah in which pegs were found fixed for teethering animals. There was open space in the said house with tiled roofs and it was open both on east and west. Blood was found there in the eastern sahan of the house where Naad and pegs were found fixed. To the south of this house was situated a Peepal tree. To the east of the house was found a well in dilapidated condition and just east of the well was fixed a telephone pole. The fields all around the house belonged to co-accused Jafar Alam. 11. The I.O. prepared sketch maps of the place of occurrence which have been marked Ext-8 and 8/1. The blood stained earth was seized and the seizure list was prepared by P.W.22 which has been marked Ext-9. A Kawasaki motorcycle bearing registration No. BR-07A-4717 was also found and that was also seized by preparing seizure memo Ext-9 and 9/1. As may appear from paragraph-41 of the evidence of P.W.22 the seized motorcycle was belonging to one Makeshwar Pd. Srivastava, resident of Laxmisagar, Darbhanga who had been relieved of the same by some criminals for which a case had been registered by the Darbhanga police. P.W.22 recorded the statements of witnesses, obtained the postmortem examination report of the deceased Dy.S.P. and also noted down the criminal history of the present Appellant Md. Zahid @ Commando @ Md. Zahir Anjum as appears from paragraph-30 of the evidence and, thereafter, submitted the chargesheet. 12. The defence of the accused persons as suggested to different witnesses including P.w.22 as may appear from paragraph-38 was that there was dispute for fishing rights between two groups of persons for fishing in the river which was situated just by the side of the double storey building and there was firing and counter-firing between them in which the Dy.S.P. was injured and killed. Thus, the murder of Dy.S.P. Satyapal Singh is not disputed. What is disputed is the participation of the Appellant and other accused persons. 13.
Thus, the murder of Dy.S.P. Satyapal Singh is not disputed. What is disputed is the participation of the Appellant and other accused persons. 13. A total number of 27 P. Ws were examined by the prosecution in support of the charges out of whom P. Ws.1, 2, 3, 7, 8, 9, 10, 11, 16, and 25 were declared hostile. P.W.26 S.I. Suresh Prasad Ram had produced a report which was in the pen of one Ganesh Prasad, Crime Reader of the Superintendent of Police, Saharsa which contained the criminal history of the present Appellant Md. Zahid @ Commando @ Md. Zahir Anjum. The report was marked Ext-13. P.W.27 was the officer-in-charge of Salakhua police station in the year 2000 and had produced the material exhibits of the case which have been marked Exts-M/9 and M/10. He had also proved paragraph-24 of the case diary Ext-15 which contained the statement of the deceased constable Md. Azam. As regards P. Ws.4, 6, 23 and 24, though they supported the prosecution case as regards the story which was contained in the written report Ext-2, they did not give evidence of identifying any of the accused persons as one of the participants in the offence. As such the four witnesses, i.e., P.W.4, 6, 23 and 24 were also declared hostile. The evidence of identification in one mode or the other, was given by P.W.5 Hawaldar Ganesh Rajak who was also injured in the same occurrence. P.W.12, constable Ugra Mohan Thakur, P.W.13 S.I. Shailesh Mishra, informant of the case, P.W.14 constable Raj Kishore Paswan, P.W.15 constable Deep Narain Yadav, P.W.19 Anil Kishore Yadav, Additional S.P., Saharsa, P.W.20 S.I. Sheo Kumar Singh, P.W.21 S.I. Ram Pravesh Singh (who was also injured in the incident) and finally P.W.22 S.I. Kuldeep Paswan who besides being the investigating officer of the case was also a witness to it, had given evidence on identification of the Appellant. The two doctors who held postmortem examination and had examined the two injured witnesses, namely, P.W.5 Hawaldar Ganesh Rajak and P.W.21 S.I. Ram Pravesh Singh, were also examined as P. Ws.17 and 18. 14. The learned trial Judge considering the evidence of witnesses acquitted 23 accused persons put on trial while convicted the present Appellant Md. Zahid @ Commando @ Md. Zahir Anjum. 15.
14. The learned trial Judge considering the evidence of witnesses acquitted 23 accused persons put on trial while convicted the present Appellant Md. Zahid @ Commando @ Md. Zahir Anjum. 15. Sri Shakeel Ahmad Khan, the learned senior counsel appearing for the Appellant in support of the appeal as also to resist the reference made by the learned trial Judge under Section 366 of the Code of Criminal Procedure , has submitted that the first information report does not say as to who had fired the shot which hit the deceased Dy.S.P. in his chest. It was uncertain from the evidence also, and, as such, the sentence of death passed upon the Appellant was not fit to be confirmed. It was next contended that the informant had not identified any of the accused persons. The identification was made by three persons who were the members of the raiding party, i.e., P.W.23 Chaukidar Saryug Tanti, P.W.24 Chaukidar Yogendra Sharma and constable Md. Azam, not examined on account of his death who as per written report had identified five accused persons out of whom only the Appellant was convicted. It was contended that P.Ws.23 and 24 the two Chaukidars did not support the prosecution story that they had seen and identified the present Appellant, Md. Zahid @ Commando @ Md. Zahir Anjum and as such the very conviction of the Appellant appears not sustainable. It was contended that the FIR was not lodged quickly or in a haste; the same was rather lodged on 8.12.1998 at 11.30 P.M., i.e., after about 12 hours of the occurrence and it was a very detailed narration containing all details right from the forming of the raiding party till the ultimate happening by way of the death of the Dy.S.P. on account of being hit by a bullet and as to who identified whom, but the evidence on record indicated that it was contrary to the detailed narration in the FIR as regards the identity of the Appellant. Specific mode of identification was introduced in evidence though some of the witnesses have stated that they had never learnt at the place of occurrence that any one had identified any of the criminals.
Specific mode of identification was introduced in evidence though some of the witnesses have stated that they had never learnt at the place of occurrence that any one had identified any of the criminals. It was contended that the written report was a fabricated and ante-dated document created with connivance of the superior police officers and the evidence of some of the witnesses, like, P.W.5 Hawaldar Ganesh Rajak on identifying the present Appellant appears missing from Ext-2, the written report, creating that evidence not acceptable. Same was the comment against the evidence of other identifying witnesses, like, P. Ws.12, 14, 15, 19, 20, 21 and 22. It was contended that the identification of the Appellant as one of the persons who had fired at the Dy.S.P. or the police party appears not established and, as such, the conviction of the Appellant was not fit to be sustained. It was contended that the FIR was drawn up on 8.12.1998 at 11.30 P.M. but the copy of the same was received by the Magistrate on 10.12.1998 which gave rise to an inference that the FIR was not recorded on 8.12.1998. It further gave rise to an inference that it might have been recorded some times on 8.12.1998 or even after the 9th of December, 1998 after due deliberation and consultation which makes the very prosecution case suspect. This alone makes the prosecution case suspect entitling the present Appellant to an order of acquittal. Sri Khan placed before us two decisions of the Supreme Court, one reported in 1994 BBCJ 116(SC) Arjun Marik v. State of Bihar and (2000)12 SCC 792 Badam Singh v. State of Madhya Pradesh to buttress his submission on belated dispatch of FIR to the Magistrate. It was contended further that when the evidence on identification was suspect it was necessary that a test identification parade ought to have been organized for establishing the evidence of identification and non-holding of the test identification parade was fatal to the prosecution case. In support of the contention, Sri Khan placed before us another decision of the Supreme Court reported in AIR 2002 SC 3325 Dana Yadav alias Dahu v. State of Bihar. 16. As against the above, Sri Ashwini Kumar Sinha, learned A.P.P. for the State submitted that it might be doubtful that Md.
In support of the contention, Sri Khan placed before us another decision of the Supreme Court reported in AIR 2002 SC 3325 Dana Yadav alias Dahu v. State of Bihar. 16. As against the above, Sri Ashwini Kumar Sinha, learned A.P.P. for the State submitted that it might be doubtful that Md. Zahid had fired and killed the Dy.S.P., but it could be said definitely that he was a member of the group responsible for killing him. It was contended that it was not a case of fleeting glimpse as was pointed out by the Supreme Court in 2007(1)SCC 582 Amit Singh Bhikam Singh Thakur v. State of Maharashtra, rather the evidence of some of the witnesses, like, P.Ws.15 and 20 goes to indicate that there was definite evidence of these witnesses identifying the present Appellant as one of the persons who was firing shots at the police party and as such there was no doubt about the participation of the Appellant in the occurrence and he was rightly found guilty of committing the offence. It was contended fairly by the learned A.P.P. that the sentence which was passed upon the Appellant might not be appropriate in the facts of the case as there is lack of evidence that it was this Appellant who had fired at the Dy.S.P. and killed him. 17. Thus, what appears from the above contentions of the two sides is that the decision of the present Death Reference and the appeal hinges upon the acceptability or non-acceptability of the evidence of the witnesses, as regards the present Appellant being identified as one of the participants who had fired at the police party, may be he had not killed the deceased. 18. It is true that most of the witnesses, like, P.Ws.1, 2, 3, 7, 8, 9, 10, 11, 16 and 25 did not support the prosecution case. Some of them, like, P.W.9, a Dafadar, P.W.10 a Chaukidar did not even support the fact that they were present at the place of occurrence or some where near it on account of being the part of the police party and as such had seen the occurrence.
Some of them, like, P.W.9, a Dafadar, P.W.10 a Chaukidar did not even support the fact that they were present at the place of occurrence or some where near it on account of being the part of the police party and as such had seen the occurrence. The worst was that the Dafadar and the Chaukidar, i.e., P. Ws.9 and 10 respectively, were very much cited as persons in written repot who had done some thing after the Dy.S.P. had been killed or had pointed out the names of the accused, but both of them have stated that none of them was present at the place of occurrence. They have further gone in denying their presence at the place of occurrence by stating that in fact none of them was present even at his respective house. However, some of other such witnesses, like, P. Ws.4 and 6 have supported the prosecution story as regards the formation of the police party by the Dy.S.P. which consisted of quite some good number of officers and constables and going to the place of occurrence. They have further deposed that they were told by some persons who were found sleeping in the same house on its ground floor that the present Appellant with some others were inside it and when the Dy.S.P. wanted to go up stairs and attempted to get the doors opened the criminals fired from the top floor as a result of which the police party retreated by shutting the doosr. Witnesses, like, P. Ws.12 and 13 constable Ugra Mohan Thakur and S.I. Shailesh Mishra(the informant)along with P.W.14 constable Raj Kishore Paswan have stated that the Dy.S.P., asked the criminals to surrender when they had started firing at the police party, telling them further that else they shall be retaliated and killed. But, that did not yield any result and the police party was fired indiscriminately at by the criminals. Other witnesses, like, P. Ws.5, 20, 21 and 22 along with P. Ws.4 and 6 have also supported the prosecution story in its totality. Thus, what I find is that the manner of occurrence is fully supported by the witnesses and that stands established. 19.
Other witnesses, like, P. Ws.5, 20, 21 and 22 along with P. Ws.4 and 6 have also supported the prosecution story in its totality. Thus, what I find is that the manner of occurrence is fully supported by the witnesses and that stands established. 19. There might be a stray suggestion here and the other there as appears given to P.W.22 in paragraph-38 that the Dy.S.P. was killed on account of being hit by a bullet which was fired in firing and cross-firing between two groups of persons fighting to fish out in the river situated east of the place of occurrence, but that does not appear of any consequence even on the balance of probability except that it is a grand invention of the fertile mind of an advocate. The Dy.S.P. was indeed killed when he had gone with a police force at the place of occurrence which was the double storey house of acquitted accused Md. Jafar Alam for capturing the criminals. The Appellant was a criminal bearing a huge antecedent, appears duly indicated by the evidence of P.W.22 in paragraph-30 in which the detail of cases against the Appellant has been stated. Those were the cases in which the Appellant had been chargesheeted. So far as the full detail of the cases in which the Appellant was wanted is concerned, it was contained in Ext-13 and the total number of cases in which the present Appellant was accused was 20 which related to the districts of Saharsa and Khagaria. One of the 20 cases was from the State of Rajasthan and it is indicated that he was being tried by the courts of law in five cases of different nature including one of escaping from lawful custody. The Dy.S.P. was within the legal obligation and fully within the requirements of his duties as a policeman to arrest such an infamous accused. 20. However, the proof of the facts regarding the occurrence could not be sufficient to dispose of the appeal unless the contentions of the counsel on the identification evidence and some other parts of the prosecution case are noticed and considered. The main challenge set up by the present Appellant was in respect of the evidence of his identification which was coming from witnesses.
The main challenge set up by the present Appellant was in respect of the evidence of his identification which was coming from witnesses. As pointed out earlier the evidence of identifying the Appellant was coming from P. Ws.5, 12, 13, 14, 15, 19, 20, 21 and 22. As regards the evidence of the above witnesses it was contended that it could not be said that they had the opportunity of regularly seeing the Appellant and being well acquainted with him so as to picking up his features for identifying him as one of the participants in the occurrence. It was contended that most of the witnesses who had claimed to have identified the Appellant appears not to have stated that fact of identifying the Appellant before the police and it appears that it was a subsequent improvement introduced by them in their evidence during trial. It was, as such, incumbent upon the prosecution to organize a test identification parade by putting the Appellant and other accused on it for identification. It was in the above connection that the learned Counsel appearing for the Appellant had placed before us the Supreme Court decision reported in AIR 2002 SC 3325 Dana Yadav alias Dahu v. State of Bihar. Special reference was made to paragraph-38 of the report appearing at its page 3340 which contains the conclusion on the law of identification and I am tempted to reproduce paragraph 38 of the report which runs as under: In view of the law analysed above, we conclude thus: (a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same. (b) In cases where according to the prosecution the accused is known to the prosecution witnesses from before, but the said fact is denied by him and he challenges his identity by the prosecution witnesses by filing a petition for holding test identification parade, a Court while dealing with such a prayer, should consider without holding a mini inquiry as to whether the denial is bona fide or a mere pretence and/or made with an ulterior motive to delay the investigation.
In case Court comes to the conclusion that the denial is bona fide, it may accede to the prayer, but if, however, it is of the view that the same is a mere pretence and/or made with an ulterior motive to delay the investigation, question for grant of such a prayer would not arise. Unjustified grant or refusal of such a prayer would not necessarily enure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his so-called claim that the accused was known to him from before and the evidence of identification in Court should not be accepted. But in case either prayer is not granted or granted but no test identification parade held, the same ipso facto cannot be a ground for throwing out evidence of identification of an accused in Court when evidence of the witness, on the question of identity of the accused from before, is found to be credible. The main thrust should be on answer to the question as to whether evidence of a witness in Court to the identity of the accused from before is trustworthy or not. In case the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in Court in relation to identity of the accused. But if, however, such an evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in Court. (c) Evidence of identification of an accused in Court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in Court.
(c) Evidence of identification of an accused in Court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in Court. (d) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable dispatch for the purpose of enabling the witnesses to identify either the properties which are subject matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits. (e) Failure to hold test identification parade does not make the evidence of identification in Court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in Court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in Court of an accused by a witness and the same is a rule of prudence and not law. In exceptional circumstances only, as Discussed above, evidence of identification for the first time in Court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction. (f) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in Court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above. 21. As may appear from the observations of the Supreme Court the identification parades are to be held during the course of investigation when the accused is not known to a witness and who claims to have properly identified the accused who could further be identified by him if he had the opportunity of seeing him again.
21. As may appear from the observations of the Supreme Court the identification parades are to be held during the course of investigation when the accused is not known to a witness and who claims to have properly identified the accused who could further be identified by him if he had the opportunity of seeing him again. The purpose of holding the test identification parade, it is too well known to be stated, is to verify the claim of the witness of identifying the accused and his further claim of identifying the accused if he had opportunity of seeing him. It is well known as was pointed out by the Supreme Court in the above judgment of Dana Yadav (supra) that the evidence of identification in court by a witness is the substantive evidence and it has grater probative value but when there could be the evidence of a witness who could have seen the accused only once during the commission of the offence then the evidence of solitary identifying witness has to be approached with great care and caution and his evidence has to be appreciated by seeking further support from other evidence or circumstances. Further if the evidence of identification of a witness for the first time in court could very well be made the basis of conviction if found trustworthy 22. Here in the present case, the two witnesses who were named in the FIR to have identified or pointed out the man as to be the Appellant, i.e., Chaukidars Saryug Tanti (P.W.23) and Yogendra Sharma (P.W.24)did not support that they had pointed out to the informant and others of the police party that it was the Appellant who had fired shot or who was firing shots. Thus, the prosecution case appears suffering a jolt as regards the statement in the above behalf being made in Ext-2. However, other witnesses, like, P. Ws.5, 12, 13, 14, 15, 19, 20 to 22 have come forward to depose in court that they had picked up the Appellant and identified him as one of the persons who had fired shots at the Dy.S.P. or the police party. Most of the above witnesses have stated that when the Dy.S.P. was looking towards the top of the building by just exiting out of the Khaprail house, a shot was fired which hit the Dy.S.P. in his chest.
Most of the above witnesses have stated that when the Dy.S.P. was looking towards the top of the building by just exiting out of the Khaprail house, a shot was fired which hit the Dy.S.P. in his chest. This evidence is acceptable but the evidence of some of the witnesses that it was the present Appellant who had fired at the Dy.S.P. and killed him does not appear established beyond all reasonable doubts. 23. P.W.5 Hawaldar Ganesh Rajak has stated in paragraph-7 of his evidence that the present Appellant Md. Zahid @ Commando @ Md. Zahir Anjum and others were at the top of the bungalow and they were firing shots. This evidence has not been challenged by the defence. On perusal of the entire evidence of P.W.5 what I find is that no meaningful cross-examination was even made of P.W.5 which could create any doubt about his claim of identifying the present Appellant. This witness was injured. He has stated that he also received injury after he had fired 2-3 rounds of shots. One of the doctors, namely, P.W.7 had examined Hawaldar Ganesh Rajak(P.W.5) on 8.12.1998 at 5.20 P.M. and had found the following injuries on his person (i) Two lacerated wound 1/2"x1/2", muscle deep with margin inverted and 1"x1"x muscle deep with blackening and margin inverted on right lateral part of chest. (ii) Lacerated wound of right wrist 1"x1"x1/4". The injuries were caused by fire arms. Thus the presence of P.W.5 at the place of occurrence could not be doubted. 24. He was a Hawaldar who was posted on 8.12.1998 in Sonbarsa Raj police station in the district of Saharsa. He has stated that there were 25-30 armed police-men and Sub-Inspectors together at the place of occurrence who were posted in Bakhtiyarpur, Banmana Ithari, Sonbarsa and other police stations. On account of being posted in the police force, Saharsa and on account of the fact that the present Appellant was accused in as many as 20 cases or more which were reported in various police stations of the district of Saharsa and Khagaria, it could not be unusual that the policemen were knowing him, both by his name and face.
Ext-13 which is the antecedent report of the Appellant indicates that most of the police stations of Saharsa and the neighbouring police stations of Khagaria were the areas of operation of the present Appellant in which he committed various criminal acts. In five of those cases he was already on trial and he must be known to the policemen on these accounts. It has come in the evidence of P.W.14, constable, Rajkishore Paswan who has also given evidence of identification of the present Appellant and others that some persons were sleeping on the verandah of the house and they pointed out as to who were the persons inside it and it was pointed out by them that it was the present Appellant and others. It has further come in the evidence of P.W.12 in paragraph-3, P.W.13 in paragraph-3 that the deceased Dy.S.P. was asking the present Appellant to surrender and the present Appellant was asking the police men to go altogether, else they would be killed. In fact the witnesses have stated that as soon as the Dy.S.P. told them to surrender, the criminals retaliated by firing at the police party. Thus, also the evidence indicates that the Appellant Md. Zahid @ Commando @ Md. Zahir Anjum was there and deceased Dy.S.P. had asked him to surrender. 25. The other evidence of identification has come from P.W.12 Ugra Mohan Thakur in paragraphs-3 and 4 in which he has stated that 25 The other evidence of identification has come from P.W.12 Ugra Mohan Thakur in paragraphs-3 and 4 in which he has stated that the present Appellant did not surrender after the Dy.S.P. had asked him to and was rather firing shots. In paragraph-3 he has stated that the shots fired by him did not hit anybody. He has stated in paragraph-5 that he had pointed out this fact to the police that policemen were talking to the present Appellant and were pleading with him to surrender but he was declining to surrender on the ground that he had brought somebodys arms and as such he would surrender later. P.W.12 Ugra Mohan Thakur has stated that he had identified the present Appellant.
P.W.12 Ugra Mohan Thakur has stated that he had identified the present Appellant. This witness appears declared hostile by the prosecution due to having not stated in court that he had seen that the present Appellant had fired and killed the Dy.S.P. which was his statement under Section 161 Code of Criminal Procedure The cross-examination by the defence does not contain any fact on the basis of which the evidence of identification as given from P.W.12, constable Ugra Mohan Thakur could be discarded. The evidence appears sufficient to establish the fact that the present Appellant was one of the persons who was firing at the police party. 26. P.W.13 S.I. Shailesh Mishra who was the informant of the case has also stated in his evidence in paragraph-4 that this Appellant was asked to surrender but he started firing shots and when the Dy.S.P. asked him to surrender he said that he would not and that the Dy.S.P. should go back(P.W.13 para-5) on perusal of the evidence in cross-examination of P.W.13 I do not find that there is any cross-examination on facts stated by P.W.13 in paragraph-5 that this Appellant had, on being asked by the Dy.S.P. to surrender, replied to the deceased Dy.S.P., Satyapal Singh, that he should go back and had started firing shots. This evidence in my opinion is admissible under Section 6 of the Evidence Act as it speaks about the words spoken by the deceased Dy.S.P. as also the present Appellant on one transaction. However, the defect in the evidence of P.W.13 as regards his evidence of identification is that he had not identified the Appellant in court. But, in spite of that the evidence of P.W.13 could not be ignored completely as it could sufficiently indicate that the presence of this Appellant could be one of the probabilities. 27. So far as the evidence of P.W.14 Raj Kishore Paswan is concerned there is no dispute in it that he was one of the members of the raiding party. He has stated that when he and others reached at the place of occurrence house some persons were found sleeping in its verandah who pointed out that the present Appellant along with others were inside it. When the criminals were asked to open the door, they started firing. The deceased Dy.S.P. requested the criminals to surrender before the police which was retaliated by firing shots at them.
When the criminals were asked to open the door, they started firing. The deceased Dy.S.P. requested the criminals to surrender before the police which was retaliated by firing shots at them. The Dy.S.P. was pleading with the criminals for their surrender but they were stating that they would not. P.W.14 has stated that in the exchange of firing between the two groups of the police men and the criminals, a shot hit the Dy.S.P. at about 11 or 12 A.M. and when the police men were engaged in attending on the Dy.S.P., the criminals started running away and during that course the present Appellant was identified by P.W.14(P.W.14 paragraphs-4 and 5). This witness P.W.14 has identified the Appellant in the dock also. But the difficulty in accepting the evidence of P.W.14. On identification of the present Appellant is that his attention to the above statement of having identified the present Appellant while he was making good his step after the Dy.S.P. had been hit by a bullet was drawn in paragraph-18 of his evidence and the same was proved by P.W.22, i.e., the investigating officer of the case in paragraph-47 of his evidence in which he has stated that none of the facts stated by P.W.14 in his paragraphs-4 and 5, attention to which facts were drawn by the defence in paragraph-18 during cross-examination of P.W.14, were stated to him. Thus, it is not safe to record that the evidence of P.W.14 could be sufficient for holding that he had duly and properly identified the present Appellant. 28. Another identifying witness is P.W.15, constable Deep Narain Yadav. This witness was one of the members of the police party which had gone on that particular day to the Basa of acquitted accused Jafar Alam. Besides, other facts which have been stated by all the witnesses the witness P.W.15 has stated that there was indiscriminate firing made by the criminals from the top floor of the house as soon as they had reached there. One of the shots had hit Havildar P.W.5 and one of the shots fired from the top of the house hit the Dy.S.P. Satyapal Singh in his chest. The most important facts on identification of the present Appellant were stated in paragraphs-4 and 5 by P.W.15 in his evidence. The witness stated that the shot fired by Appellant Md. Zahid @ Commando @ Md.
The most important facts on identification of the present Appellant were stated in paragraphs-4 and 5 by P.W.15 in his evidence. The witness stated that the shot fired by Appellant Md. Zahid @ Commando @ Md. Zahir Anjum had hit the Dy.S.P. while the other criminals were firing shots from all around. The trial court had recorded in paragraph-5 that the witness had correctly identified the present Appellant in the dock. The witness appears cross-examined by the Appellant in paragraph-13 and he has again stated that he had identified the Appellant while firing shots from a distance of about 100 yards. The evidence in cross-examination of P.W.15 is very short but it does not appear pointing out that there was even an attempt by the defence to challenge the evidence of P.W.15 in paragraphs-4 and 5 as regards his claim of identifying the present Appellant by substantially cross-examining him on that fact and thereby creating some doubt in the prosecution claim that P.W.15 was an identifying witness. 29. Thus what I find is that besides P.W.5 and also P.W.12 Ugra Mohan Thakur and some part of the evidence of P.W.14 as regards the presence of this Appellant at the place of occurrence, the evidence of P.W.15 also appears sufficient to indicate that this Appellant Md. Zahid @ Commando @ Md. Zahir Anjum was one of the criminals who had participated in the offence and was seen and identified by firing shots. 30. The other witnesses whose evidence was considered by the court below for holding that the present Appellant was the person who fired and killed the deceased was those of P.W.19 Anil Kishore Yadav, the then A.S.P., Saharsa, P.W.20 S.I. Sheo Kumar Singh, P.W.21 retired Circle Inspector Ram Pravesh Singh and P.W.22 S.I. Kuldeep Paswan who had given evidence both as a witness as also the investigating officer. While I was considering the evidence of P.W.19 I found that his evidence could not be accepted in its totality and as such his evidence could not be used on identification of an accused also. P.W.19 has stated that when he reached with the additional force the occurrence was already on and he learnt from a Chaukidar that the criminals were lodged in the house of Jafar Alam and the present Appellant was their leader.
P.W.19 has stated that when he reached with the additional force the occurrence was already on and he learnt from a Chaukidar that the criminals were lodged in the house of Jafar Alam and the present Appellant was their leader. In paragraph-1 P.W.19 stated that he heard accused persons shouting the name of this Appellant as Commando Bhaie, Anjun Bhaie, etc and they were taking their positions when he had reached at the place of occurrence. 31. Some of the evidence produced on record point out that after some times the firing had continued, the deceased Dy.S.P. sent a particular officer for fetching additional force and that was brought by P.W.19 Anil Kishore Yadav, the additional S.P.. Thus, the stage of taking position could not be at the time when P.W.19 reached there. The other difficulty in accepting the P.W.19 as a witness to the occurrence is that he stated about learning from a Chaukidar that this Appellant was leading the gang of criminals who had lodged themselves in the house of Jafar Alam, but no where in his evidence which runs from pages-171 to 175 of the paper book has he given the name of the Chaukidar who had pointed out to him the above fact. So on these scores, I do not find it safe to several place reliance upon the evidence of P.W.19. 32. So far as the evidence of P.W.20, S.I. Sheo Kumar Singh is concerned, his evidence may also not be utilized for recording the finding that he had identified the Appellant as one of the criminals. In paragraphs-3 and 4 of his evidence, P.W.20 has stated that he learnt about the names of the criminals from P.W.24 Chaukidar Yogendra Sharma. He has further stated in paragraph-4 that when the Dy.S.P. was hit by a shot fired from the top of the house, he changed his position a bit to see and find that there was an arms in the hand of the present Appellant and that he retreated immediately from that position. P.W.20 stated that it was this Appellant who had fired the shot at the Dy.S.P. and further claimed that he could identify the present Appellant and identified him in Court in the same paragraph-4.
P.W.20 stated that it was this Appellant who had fired the shot at the Dy.S.P. and further claimed that he could identify the present Appellant and identified him in Court in the same paragraph-4. There is cross-examination of P.W.20 in paragraph-7 in which he has stated that he was never posted in Salkhua police station and further that the house of the present Appellant Md. Zahid @ Commando @ Md. Zahir Anjum was situated in the jurisdiction of Banma Ithari police station. He had never had the occasion of arresting the Appellant nor P.W.20 had the opportunity of going to the house of the Appellant. The attention of the witness P.W.20 was drawn in para-12 to the facts stated by him in paragraphs-3 and 4 regarding his claim of identifying the present Appellant and those facts were proved by cross-examining the investigating officer, P.W.22 in paragraph-50 in which the I.O. of the case stated that P.W.20 had not made any statement as he made in paragraphs-3 and 4 of his evidence. In fact P.W.20 himself in paragraph-13 had stated that he stated the facts stated by him in paragraphs-3 and 4 for the first time in court and in paragraph-14 he had stated that the fact of identifying the Appellant as stated by him, was pointed out to him by the Chaukidar Yogendra Sharma(P.W.24). These are some of the reasons upon which I do not find it prudent and safe to place reliance upon the evidence P.W.20 Sheo Kumar Singh on the identification of the Appellant. The witness was definitely present at the seen of occurrence, but his claim of identifying the Appellant appears doubtful. 33. So far as the evidence of P. Ws.21 and 22 on identification of the Appellant is concerned, they also appear sailing in the same boat like P.W.20 Sheo Kumar Singh. P.W.21 Ram Pravesh Singh who was also injured in the incident was definitely present as appears stated by him. His injuries were also proved by the prosecution by examining P.W.18 Dr. Arun Kumar Singh who stated that he found: (i) An abrasion on left side of face 2"x1/2". The margin of the wound was black. (ii) An abrasion on anterior fold of axial 1-1/2"x1/4". (iii) A defused swelling with tenderness on left knee. 34. As per the opinion of P.W.18 Dr. Arun Kumar Singh, injuries Nos.
Arun Kumar Singh who stated that he found: (i) An abrasion on left side of face 2"x1/2". The margin of the wound was black. (ii) An abrasion on anterior fold of axial 1-1/2"x1/4". (iii) A defused swelling with tenderness on left knee. 34. As per the opinion of P.W.18 Dr. Arun Kumar Singh, injuries Nos. 1 and 2 on P.W.21 were caused by fire arms before six hours of examination of the injured and injury No. 3 was caused by hard blunt substance and all the injuries were simple in nature. 35. Besides, the evidence of identification given by P.W.21 is based on the evidence of P.W.24 Chaukidar Yogendra Sharma who had pointed out to him that the Appellant was one of the criminals lodged in the house. I have already pointed out that Chaukidar Yogendra Sharma was declared hostile and further that he did not support that he had identified any criminals on that particular day in that particular incident. The witness himself stated in paragraph-2 of his evidence that as soon as the Dy.S.P. peeped outside the Khaprail house this Appellant fired a shot at him and he was killed. His attention was drawn in paragraph-11 of his evidence to the above fact and it was suggested that he had not made the above statement to the police which fact was proved by the investigating officer P.W.22 in paragraph-51 of his evidence. Similar is the evidence of P.W.22 S.I. Kuldeep Paswan who besies being a witness was also the investigating officer of the case. He also stated that it were P. Ws. 23 and 24 Chaukidar Saryug Tanti and Yogendra Sharma who had pointed out the names of the criminals and he further stated in paragraph-3 that as soon as the Dy.S.P. exited a bit out of the Khaprail house and looked up towards the top of the house, one of the criminals hiding there, namely, Md. Zahid @ Commando @ Md. Zahir Anjum had fired a shot from his rifle hitting the deceased in his chest. His attention also appears drawn to the above fact in paragraph-43 of his own evidence. Thus, the evidence of P.W.22 also appears not fit to be accepted as regards his claim of having seen and identified the Appellant during the course of the occurrence. 36.
Zahir Anjum had fired a shot from his rifle hitting the deceased in his chest. His attention also appears drawn to the above fact in paragraph-43 of his own evidence. Thus, the evidence of P.W.22 also appears not fit to be accepted as regards his claim of having seen and identified the Appellant during the course of the occurrence. 36. However, I have already Discussed the evidence of P. Ws.5, 12, 14 and 15 in detail in some early parts of the present discussion and I have found their evidence acceptable and trustworthy, as regards the identification of the present Appellant as one of the criminals who had indulged in firing shots. The evidence appears sufficient in the above behalf but as regards the allegation that it was the shot fired by the present Appellant which had killed the deceased, I do not find it clearly coming out of the evidence of P. Ws.5, 12, 14 and 15. 37. It was contended in the above connection by Sri Khan, the learned Counsel appearing for the Appellant that whereas the written report contained a statement regarding identification of other accused which fact was also supported by some witnesses, but only the Appellant was convicted. It needs hardly to be pointed out that the F.I.R. does not have any evidentiary value. The witnesses whose evidence I have scanned and marshalled had neither identified any other accused in dock except the Appellant nor had given any acceptable evidence establishing the identity of other participating accused. As I have just recorded, P. Ws.5, 12, 14 and 15 appear trustworthy witnesses on identity of the present Appellant. 38. Sri Shakeel Ahmad Khan, the learned senior counsel appearing for the Appellant also made scathing attack on the merits of the evidence of identification while attacking the general features of the prosecution case and called upon us to reject the whole prosecution story as not acceptable. While addressing us Sri Khan was highly critical of the investigation being conducted by P.W.22 who was also a witness to the occurrence. It was submitted that it was against a long chain of judicial pronouncements that the police officer who is a witness to the occurrence should never be entrusted with the task of carrying out the investigation.
While addressing us Sri Khan was highly critical of the investigation being conducted by P.W.22 who was also a witness to the occurrence. It was submitted that it was against a long chain of judicial pronouncements that the police officer who is a witness to the occurrence should never be entrusted with the task of carrying out the investigation. It was pointed out that the defence was greatly prejudiced because it was very difficult for it to cross-examine P.W.22 on some facts which might have been stated by him in his evidence which had not appeared in his statement recorded during investigation. It was further contended that he will be making all efforts to present the fool proof case in court so as to obtaining conviction of the Appellant and getting him severely punished against real state of facts. 39. I appreciate the contention of Sri Khan that a police officer who is a witness to any occurrence should not be the investigating officer of such case. But this principle may not always be applicable to all cases. There might be a case in which most of the police officers of a district may be witnesses and there could not be any officer left to investigate the case. In the present case also all the officers-in-charge of all the police stations of Saharsa appear engaged in forming a party or being called into action as reinforcement to the beleaguered Dy.S.P. who was fighting the criminals so as to subduing and capturing them for brining them to justice. After all could not it be the situation in all cases that any police officer has to investigate a case which might have been initiated by another police officer. It could be very difficult for the courts to lay down a hard and fast rule which could be universally applicable to all such cases. Situations could be such as may not make it reasonably correct to adhere to the above principle of law as it may create a very anomalous and piquant situation when the courts shall have to reject the whole of the prosecution and allow a serious offence to go unpunished.
Situations could be such as may not make it reasonably correct to adhere to the above principle of law as it may create a very anomalous and piquant situation when the courts shall have to reject the whole of the prosecution and allow a serious offence to go unpunished. Courts are expected to appreciate the evidence with objectivity and on known canons of appreciation and they have the ability to judge the facts of the case on reasonableness and they are known further to come to a conclusion as to whether a case was cut out for obtaining prosecution or was it presented as perfectly as required under law to be judged during trial by the court. It has seldom been noticed that the courts have never rejected the prosecution story where it was required to, or when it was found that the police had made out a case out of nothing so as to dishonestly involving an innocent dishonest person with the sole purpose of getting him punished for any particular reason. At the same time, the courts have never acted on partial, dishonest or even illegal investigation to throw out a good case. Courts have rendered their judgments correctly. 40. Here in the present case as I have just noted the whole police force including all the police officers-in-charge of all police stations of Saharsa were joining the Dy.S.P. to fight the criminals. Some who could not came immediately with the Dy.S.P., had arrived there with the A.S.P. Anil Kishore Yadav(P.W.19). There was no officer left any where in the district of the rank of Sub Inspector or Inspector of Police who could be entrusted with the task of investigating such a case. No cross-examination appears made on the above point by the defence while cross-examining any of the witnesses to bring a fact on record that there was any officer available for carrying out the investigation of the case other than the officers who had participated in the operation. As such, I do no find it an illegality which could go to the root of the trial of the accused on account of the case being investigated by P.W.22, S.I. Kuldeep Paswan. 41. Sri Khan was attacking the prosecution case from another angle.
As such, I do no find it an illegality which could go to the root of the trial of the accused on account of the case being investigated by P.W.22, S.I. Kuldeep Paswan. 41. Sri Khan was attacking the prosecution case from another angle. It was submitted that the written report was a detailed narration which included the fact that the Chaukidar Yogendra Sharma(P.W.24) and Chaukidar Saryug Tant (P.W.23) with deceased constable Md. Azam had identified and pointed out the names of the present Appellant and four others who were named in the FIR but it did not contain any statement that P. Ws.5, 12, 14, 15 and others had also pointed out the names of the present Appellant or any one else on account of being identified on that particular day. It was contended that it might be a subsequent improvement which was properly thought out by the higher police officers as witnesses appear making their statements in the office of the S.P.(P.W.14 paragraph-17) and the witnesses were made to make the above statement in court. It is true that one of the witnesses, namely, constable Raj Kishore Paswan (P.W.14) who has also given a evidence on identification of the present Appellant has stated that he and others made statements before the I.O. of the case in the office of the S.P. but no other witness has supported him on this fact. Moreover, even if the other witness had supported him, the law does not say that it could be illegal. Witnesses are the police men, most of whom are constables. The very written report states, which is supported by the evidence of witnesses that the police force was drawn from the police lines, Saharsa. It could be assumed that the police lines includes the office of the S.P. and could be located in one campus. If the police was to make out a concrete case to be presented before the court, most of the witnesses could have been made to say that they had identified the Appellant and had known him from before. 42. As regards the written report being a full-fledged narration it might be like that but one has to appreciate the fact that in spite of being filed after about 12 hours of the occurrence, it may not be containing many facts.
42. As regards the written report being a full-fledged narration it might be like that but one has to appreciate the fact that in spite of being filed after about 12 hours of the occurrence, it may not be containing many facts. The distance and the difficult terrain could be gathered from the fact that witnesses have stated that they could start at about 11 P.M. in the night intervening 7th and 8th of December, 1998 and could reach the place of occurrence at around 4 A.M. They had crossed two rivers, one by boat. The time taken in travel by the police force may indicate the distance between the police headquarters at Saharsa and the place of occurrence. After the deceased Dy.S.P. was hit by a bullet and killed, his dead body must have been brought to the police headquarters and the police force which had been put on the operation could have converged at Saharsa police lines with the dead body of the Deputy Superintendent of Police. They must have been in a very battered mental state and it could never have been possible for them either to narrate as minute and important a fact as picking out the identity of the Appellant and narrating it to the informant or other police officers. Even assuming for the sake of argument that the informant had been told by some one that he had identified the Appellant as one of the criminals who was firing the shots from the house top, the state of things which could have prevailed along with the confusion and chaos, could not have made it possible for the informant to narrate the name of persons who had identified the Appellant. Moreover, the present FIR, in spite of being so detailed, still could not be containing all the necessary facts which could be collected during the course of the trial. Witnesses are examined for presenting the facts as was seen or perceived by them. If a single narration contained in a document could be sufficient to prove the charges, then the whole criminal jurisprudence could not be available to us. Witnesses are examined for bringing out the truth as per their testimony.
Witnesses are examined for presenting the facts as was seen or perceived by them. If a single narration contained in a document could be sufficient to prove the charges, then the whole criminal jurisprudence could not be available to us. Witnesses are examined for bringing out the truth as per their testimony. The part of the story has to be believed or disbelieved after appreciating the evidence of the witnesses and some times it may be accepted in spite of there being some lack of some details in the FIR. This appears a case to me in which it would never have been possible nor practicable that the whole plethora of informations or details could have been put down in the FIR itself. Thats never the purpose of drawing up of the FIR and that could never be the compulsion with which the prosecution could be taxed. 43. Sri Khan was directing his attack also on the belated report of the case and its belated receipt by the Magistrate. I must point out that in Arjun Marik and Ors. v. State of Bihar 1994 BBCJ 116 (SC) as also in Badam Singh v. State of M.P., (2003) 12 SCC 792 , the necessity of quick receipt of the report by the Magistrate was highlighted. In Badam Singh the delay in receipt of the special report by the Magistrate was of ten days which discussions appear in paragraphs-23 and 24 of the report. There was a categorical statement by the investigating officer that he was not in a position to give any explanation for such a long delayed receipt of the report by the Magistrate. In Arjun Marik the evidence on record indicated that the FIR was dispatched from the police office on the 3rd of its being drawn up and the explanation was that it was Sunday or a holiday on which the Courts in Bihar were closed and as such it could not reach the Magistrate. Thus, the explanation placed by the prosecution in Arjun Marik was on account of a Sunday or any holiday and the Courts being closed and as such not dispatching the report due to death. 44.
Thus, the explanation placed by the prosecution in Arjun Marik was on account of a Sunday or any holiday and the Courts being closed and as such not dispatching the report due to death. 44. On perusal of both cases what I find is that there was proper cross-examination of the investigating officer in both the cases by the defence so as to eliciting from them the reasons as to why the FIR could be belatedly dispatched and received by the Magistrate. In Arjun Marik the explanation on dispatch to and receipt by Magistrate of the F.I.R was negatived and in Badam Singh non-explanation of ten days delays was found fatal to the prosecution case. P.W.22 S.I. Kuldeep Paswan was cross-examined on different dates from paragraphs 28 to 61 of his evidence but no question was put to him as to why the document was received by the Magistrate on 10.12.1998. P.W.22 has stated in paragraph-59 in answer to another question that he reached Saharsa from Salkhua by motorcycle and used to take 4 1/2 to five hours in covering the distance. 45. It is true that it is expected that the special report of the case, i.e., the FIR has to be transmitted to the nearest Magistrate forthwith, without any undue delay but, there could not be any hard and fast rule on its dispatch as the situations in each case may vary. I have already Discussed as to how the state of things would have been in police establishment in Saharsa on account of the tragic death of the Dy.S.P. who was killed while performing his duties. The entire force would have been a completely devastated. The police force would have been demoralized and ruing the situation under which the tragic incident had occurred. Any delay in such a situation on the institution of the case or investigating the same may be appreciable and no strider view could be taken under the above circumstances. Moreover, the defence could take advantage of the delayed receipt of the report only when it had laid down the foundation for the same and had brought materials on record which could give rise to an inference in the mind of the court that it was deliberate and with some definite purpose. I could not find out any such material available on the whole of the record.
I could not find out any such material available on the whole of the record. Besides, the witnesses say that the Dy.S.P. had been hit and killed by a bullet some times in the day and probably at around 11 A.M. on 8.12.1998. The FIR of the incident was registered at 8.30 P.M. after the written report was presented by P.W.13. P.W.22 in paragraph-59 might have said that it could take four and half to five hours in reaching Saharsa from Salkhua, but the evidence in that particular paragraph-59 indicates that the witness was traveling by a motorcycle. What were other modes of coming to Saharsa does not appear from the record. Generally, documents from the police station are dispatched by the officer-in-charge of the police station and entries are made in the general diary of the police station along with the detail as to who was the messenger who had taken the particular document to the courts. No such document was brought before the court or was attempted to be brought before it so as to laying down the foundation. The officer-in-charge of the police station P.W.22 was very much in dock, but no question was put as to when and by whom the copy of the FIR was dispatched to the court. It was definitely reaching as per the defence itself on 10.12.1998. The part of the district of Saharsa where I had personally been posted as District & Sessions Judge as also as Additional District & Sessions Judge is almost inaccessible on account of being one of the badly ravaged areas of the district by flood. I could take judicial notice on account of my days there that it is not easy to travel from Salkhua to Saharsa. Moreover, I have already noted that there was no evidence on record indicating that there was any delay in dispatching the copy of the FIR and that delay was deliberately occurring because the police establishment was huddled up in thinking out a story so as to implicating innocent persons. 46.
Moreover, I have already noted that there was no evidence on record indicating that there was any delay in dispatching the copy of the FIR and that delay was deliberately occurring because the police establishment was huddled up in thinking out a story so as to implicating innocent persons. 46. In the light of the discussions which I have just made, I find that the participation of the Appellant was properly established from evidence which indicated that he had fired shots on the police party and he was not only a member of the gang of criminals but was leading that gang with fire-arms which had taken shelter in the house of acquitted accused Md. Jaffar and in that firing which was also resorted to by the Appellant and others the deceased was killed. 47. The Appellant has been convicted under Section 302 of the Penal Code and 27 of the Arms Act. I find that his conviction could be under Section 302/149 of the Penal Code and 27 of the Arms Act. Accordingly, I propose to convert his conviction from that under Section 302 IPC to Section 302/149 IPC and 27 of the Arms Act. It is accordingly converted. 48. As regards the sentence of death inflicted upon the Appellant considering that the case of the prosecution that it was the Appellant who had fired the shot and killed the Dy.S.P. not being established beyond doubt and further considering that the prosecution has succeeded only in establishing the participation of the Appellant who fired shots at the police party, I would simply be opposed to confirm the sentence of death passed upon the Appellant. However, it is a case in which the Dy.S.P. was killed. The Dy.S.P. was performing his duties which were enjoined upon him by virtue of being one of the officers of the police force as also by virtue of Section 41 of the Code of Criminal Procedure He was duty bound to arrest the Appellant or any other persons who within his knowledge appeared having committed cognizable and non-bailable offence. There is a huge list of cases in which the Appellant was wanted. The deceased was perfectly within his duties to form the raiding party so as to reaching the place of occurrence. He asked the Appellant to surrender. The Appellant did not do it.
There is a huge list of cases in which the Appellant was wanted. The deceased was perfectly within his duties to form the raiding party so as to reaching the place of occurrence. He asked the Appellant to surrender. The Appellant did not do it. On the contrary, he resorted to firing at the police party in which the Dy.S.P. was killed and a few, like, P. Ws.5 and 21 were injured. It might not be a murder committed in a diabolic manner which may be revolting to the conscience, but it was certainly a threat to the existence of the democratic set up and its system of rule of law. Imprisonment for life is generally imprisonment for 14 years after which prisoners are released on account of remission policies of the state government. It might not be one among the rarest of the rare cases, but it certainly is a case among the rare categories, considering which I commute the sentence of death passed upon the Appellant into rigorous imprisonment for life which, I direct, shall extend to the whole life of the Appellant Md. Zahid @ Commando @ Md. Zahir Anjum who shall never be granted any remission by the Govt. of Bihar or any authority and released ever. 49. Accordingly, the death reference is negatived. The appeal filed by the Appellant is dismissed.