Central Bureau of Investigation vs Shyam Bihari & Others…

THE SUPREME COURT OF INDIA

Central Bureau of Investigation vs Shyam Bihari & Others

Case No :- CRLAPPEAL 413/13

DATE OF DECISION:- 17-07-2023

HEADNOTE WITH FULL TEXT JUDGMENT

CRIMINAL LAWS

Murder by policemen – Reliability of ocular evidence of PW3 and PW6 – As per the FIR filed by PW6, while he and PW3, on one scooter, and deceased on another scooter, were going to attend a marriage, they saw three policemen standing on the road – One of them flashed a torch light and they lost control and their scooters skidded – Another exhorted to shoot – Shots fired hit the deceased and he collapsed – PW-3 and PW-6 escaped to the village – Whether acquittal recorded by trial court and affirmed by High Court was justified? Held, yes. PW3 nor PW6 could identify any of the three accused. They did not depose that the three policemen involved in the crime were those who were facing trial. Thus, trial court rightly found their evidence to be not of much help. (Para 28)

Evidence of PW15, an eye-witness – Reliability – Murder by policemen – PW15’s presence was not confirmed by PW3 and PW6 (eye-witnesses) – PW15’s first statement was not to the investigating agency but made on an affidavit prepared by a lawyer, who had simultaneously prepared three identically worded affidavits – PW-15 lied about going alone to get the affidavit prepared, as all the three affidavits were prepared on stamp papers, consecutively numbered, bought from the same vendor and sworn in quick succession, giving rise to a definite conclusion that they were prepared by an advocate – PW15’s conduct in not remaining silent for a week, was strange – He made no disclosures even to the father of the deceased – Instead he straightaway went to swear and dispatch an affidavit by post to a higher officer of the police even though, by that time, investigation had been transferred to the CB-CID from the local police and there was no threat from the local police – Trial Court noticed these facts and recorded detailed reasons to hold PW15 unreliable. Held, it appears that PW15 was a witness set up on advise. Trial court rightly discarded his testimony (Para 29)

Murder by policemen – Allegedly deceased was fired at by the policemen who had rifles – But deceased did not die of a rifle bullet injury – He died from a .12 bore gunshot which could not be ascribed to the rifles issued to the accused persons (policemen) – There was no recovery of a .12 bore gun – Admittedly, some of the empty cartridges found at the spot, as per the ballistic expert report, were not fired from the rifle issued to the accused – This indicated presence of some other rifle also. Held, even if empties of rifle cartridges relatable to service rifles issued to the accused were found at the spot, culpability of the accused persons could not be inferred. Accused persons were not identified by eye-witnesses PW3 and PW6. After the incident, villagers had gathered at the crime scene, police had arrived and injured was taken to the hospital. All this while accused persons continued to stay at the spot. This conduct belied their guilty mind. The accused persons were required to patrol two villages and it was possible that by the time they arrived at the spot, incident had already taken place and to chase away the miscreants, they fired shots. There was no evidence to suggest that an exchange of fire between policemen and members of the public, was with a view to kill. The circumstances found proved do not constitute a chain so complete as to show that in all human probability it were the accused persons who committed the crime and no one else. Hence, benefit of doubt was rightly extended to them. (Para 30)

Criminal Procedure Code, 1973

Section 378 – Appeal against acquittal – Whether High Court’s confirmation of acquittal by a cryptic judgment and order calls for remitting the matter back to it? Held, no. This, by itself, is not a ground to remit the matter. Incident is of the year 1987 and the appeal has remained pending for more than a decade. Remitting the matter to rewrite the judgment, would be travesty of justice. Trial court has dealt with the matter at great length and has discussed each piece of evidence relied upon by the prosecution. The relevant record to assess the merit was before the Supreme Court. The Court thought that it was apposite for it to assess whether, by not granting leave to appeal against the judgment of the trial court, High Court led to any miscarriage of justice. (Para 26)

Appeal against acquittal – Powers of appellate court. Held, in an appeal against acquittal, power of the appellate court to reappreciate evidence and come to its own conclusion is not circumscribed by any limitation. But appellate court must not interfere merely because a contrary view is permissible, particularly, where the view taken by the trial court is a plausible view based on proper appreciation of evidence and is not vitiated by ignorance/misreading of relevant evidence on record. (Para 27)

MANOJ MISRA, J.

1. This appeal assails the judgment and order of the High Court of Uttarakhand at Nainital (in short, “the High Court”), dated 26.07.2012, in Government Appeal No.4 of 2022. By the said order, though the delay in preferring the appeal against the judgment and order of acquittal dated 13.12.2011 passed by the third Additional District & Sessions Judge/Special Judge (Prevention of Corruption Act), C.B.I., Dehradun (for short “the trial court”) in C. No. RC-5/87-SIU.II was condoned, the application seeking leave to appeal under section 378 (3) of the Code of Criminal Procedure, 1973 (in short, “the Code”) was rejected and in consequence the Government Appeal was dismissed.

Introductory Facts

2. In the night/late evening of 24.06.1987, one Raj Kumar Baliyan (in short, “the deceased”) was killed. A first information report (FIR) was lodged by Pramod Kumar Tyagi (PW-6) alleging, inter-alia, that while he and Sudeep (PW-3), on one Scooter, and Raj Kumar Balyan (the deceased) on another Scooter, were travelling from Muzaffarnagar to Meerapur to attend a marriage, near Bhatoda turn, at about 9.30 pm, in the light of the Scooter, they saw three policemen standing on the road. One of them had a Danda (stick) whereas the other two were carrying rifles. The person who had the Danda flashed a torch light on them. As a result, they lost control of their respective scooters, which skidded and fell. One of the policemen exhorted to shoot to kill. In consequence, shots were fired hitting the deceased, who collapsed at the spot. PW-3 and PW-6, however, managed to escape to the village. On information, villagers arrived at the scene of crime and so did the police. In the presence of police the deceased was rushed to the hospital but he succumbed to his injuries on the way. Thereafter, the dead body was taken to the hospital and after leaving the body there, PW-6 lodged the FIR, which was registered as Case Crime No.48/87 at P.S. Sikhera.
3. Another version of the incident was lodged at the instance of one Mahindra Singh on 25.06.1987, which gave rise to Case Crime No.48A/87. There it was alleged, inter-alia, that on 26.05.1987 a robbery took place in the village wherein one person died. As criminals were regularly visiting the village since then, a constant vigil was maintained by the villagers as well as the police which had been patrolling the area. It was alleged therein that while three police constables were patrolling the village and people of the village were keeping a watch in the night of 24.06.1987, at about 9.00 pm, a man came and raised an alarm that 5-6 criminals were about to come to the village on motorcycles and scooters. On receiving this information, the villagers and the policemen became alert. At about 9.30 pm, a motorcycle came and stopped a little ahead of Bhatoda turn. Thereafter, two scooters came at a fast speed. When torch lights were flashed and the scooters were signalled to stop, the rider fired a shot with a view to kill the villagers and the policemen. However, one of the scooters skidded and the other stopped. The criminals however started running away while firing shots. As a result, there was retaliatory fire by the police and the villagers. One of the criminals was chased and nabbed by the villagers. He was also beaten by them. At that time, from P.S. Sikhera, an Inspector arrived in an Ambassador Car. He interrogated the criminal. Later, several villagers arrived and informed that the person caught is Raj Kumar, Advocate. Thereafter, Raj Kumar was taken to the hospital. At the same time, the spot was searched and two empty shells of cartridges were recovered from the spot.
4. The investigation of the aforesaid two cases was assigned to CB-CID and later, for further investigation, to Central Bureau of Investigation (CBI) upon which, CBI registered a case No.RC-5/87-SIU.II. After investigation, CBI submitted a chargesheet against the accused persons (the respondents herein) under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short, “I.P.C.”) After taking cognizance on the police report, the Court of First Additional Sessions Judge, Dehradun charged Anil Kumar, Shyam Bihari and Arshad Ali (the respondents herein) for committing offence punishable under Section 302 read with Section 32 I.P.C. The accused pleaded not guilty and claimed trial.
5. During the trial, the prosecution examined 33 witnesses and produced various documentary evidences with regard to GD entries, seizure memos, site plan, forensic reports, autopsy report, etc. Various material exhibits such as articles seized during investigation were produced and exhibited during trial.
6. After closure of prosecution evidence, the incriminating circumstances appearing in the prosecution evidence were put to the accused for recording their statement under section 313 of the Code. In their statement, under section 313 of the Code, the accused denied the incriminating circumstances appearing against them and claimed that they have been falsely implicated and made scapegoat.

Nature of the Prosecution Evidence

7. The prosecution sought to bring home the charge against the aforesaid three accused by leading evidence to the following effect: (i) On the date, time and place of the incident, the three accused were on a picket duty as reflected by the GD Entries made at the police station concerned; (ii) The GD Entries reflected that they had departed from the police station with a rifle and 50 cartridges each; (iii) The ballistic expert report confirmed that some of the empty rifle cartridges recovered from the spot were fired from the service rifles of the accused thereby confirming their presence at the spot; (iv) PW-3 and PW-6 narrated that the shots were fired by policemen who flashed torch light at the scooter riders; (v) PW-15 (Shyam Singh) confirmed participation of the three accused in the crime and proved that on exhortation by the other two accused, Anil Kumar took out a country made pistol and had fired a shot at the deceased; (vi) The villagers who had arrived at the spot after the incident had noticed that the three accused along with others were present at the spot; (vii) Police set up a false cross version of the incident, namely, Case Crime No. 48A/87, which indicated that there was a deliberate attempt on the part of the police to save themselves from the clutches of law.

Trial Court Findings

8. The trial court found the testimony of PW-3 and PW-6 inconsequential because the two witnesses did not state that the policemen involved in the crime were the ones facing trial. Rather, they admitted that they had not seen the accused before and that the accused were not put for identification.
9. As regards eye-witness Shyam Singh (PW15), the trial court found him unreliable for the following reasons: (a) PW15 made no prompt disclosure of his knowledge about the incident and the culprits either to the police or to the villagers, rather, after a lapse of several days, chose to swear an affidavit and dispatch it by post to a higher official of the police; (b) three affidavits, including that of PW15, making the same disclosure in identical language, sworn on the same day, at more or less the same time, and prepared by the same lawyer, were received by the police after a few days; and (c) PW15 lied that he was alone when he went to swear the affidavit.
10. Having discarded the eye witness account of PW-15 and finding the eye witness accounts of PW-3 and PW-6 inconsequential to inculpate the accused, the trial court proceeded to address other circumstances on which the prosecution relied. These were: (a) few empty cartridge shells lifted from the spot were found to have been fired from the rifles issued to the accused; and (b) there was an attempt to set up a false narration of the incident vide Case Crime No.48A of 1987.
11. In respect of some of the empty cartridges matching with service rifles of the accused, the trial court noticed that out of four .303 cartridges recovered from the scene of crime, one was fired from the rifle of accused Anil, one from the rifle of accused Shyam Bihari whereas the remaining two cartridges were not fired from service rifles of any of the three accused persons. Thus, it was not clear from the prosecution evidence as to from whose rifle the remaining two bullets were fired. This discrepancy, according to the trial court, rendered the prosecution version against the accused doubtful because there could be the hand of some other person also.
12. In addition to the above, the trial court noticed from the autopsy report that the gun shot injury sustained by the deceased was not from a rifle bullet but from a .12 bore weapon which was not recovered from any of the accused persons. Hence, even if rifle bullets were found at the spot, they were not the ones from which injuries were caused to the deceased. As regards the cross version of the incident (i.e. Case Crime No.48A/87), no adverse inference was drawn against the accused as it was not at their behest.
13. Apart from above, the trial court noticed that, according to the prosecution version, several persons (i.e. villagers including PW-3 and PW-6 and police personnel) had arrived at the spot and the three accused were also present there, yet they were not identified. In these circumstances, it was concluded that if PW-3 and PW-6, who were travelling on another scooter in close proximity to the deceased, had recognized the accused persons, they would have identified them at the scene of crime as those who killed the deceased, and country made pistols might have also been recovered.
14. After analysing the entire prosecution evidence in detail, the trial court concluded that the prosecution had failed to prove that those three policemen in uniform, who attacked Raj Kumar Baliyan (the deceased), were the persons facing trial.

High Court’s observations

15. Having failed to succeed in the trial, the State filed a time-barred appeal along with a delay condonation application and an application seeking leave to appeal. The High Court by the impugned order allowed the delay condonation application but rejected the application seeking leave to appeal and dismissed the appeal accordingly.
16. While rejecting the application seeking leave to appeal, the High Court noticed that the prosecution case rested on three eye-witnesses’ accounts. Eye-witnesses PW-3 and PW-6 could not identify the policemen and in so far as PW-15 was concerned, he was found not reliable. Moreover, the medical evidence indicated that the deceased died due to gun-shot injuries fired from a .12 bore weapon and not a rifle, which was with the accused, hence, granting leave to appeal to formally hear the appeal would be an exercise in futility.
17. We have heard Shri Vikramjit Banerjee, learned Additional Solicitor General, assisted by Shri Rajan Kumar Chaurasia, learned Advocate for the appellant; Shri Anil K. Sharma, learned Advocate for the respondents; and have perused the record.

Submissions

18. The learned counsel for the appellants submitted that this is a case where it was proved beyond doubt that the deceased was shot by persons who were wearing police uniform. On the night of the incident, the three accused, namely, Shyam Bihari, Anil Kumar Sharma and Arshad Ali, all armed constables, were patrolling the area, as per evidence brought on record. Soon after the incident these constables were found present at the spot. Hence, their presence at the scene of crime was confirmed not only by eye witnesses but also by circumstances including the fact that certain empty cartridges recovered from the spot were fired from their service rifles. Thus, not only their presence was proved but another version of the incident i.e. Case Crime No.48A of 1987, depicting police action, confirmed that death was a consequence of police action. Therefore, the burden was heavy on the accused to explain these incriminating circumstances and in absence whereof, an adverse inference ought to have been drawn against the accused persons.
19. It was also argued that even if PW-3 and PW-6 could not identify the accused persons, they corroborated the prosecution story with regard to the manner in which the incident occurred and, therefore, their testimony could be used to corroborate the testimony of PW-15, who not only narrated the incident but could recognize and identify the accused persons.
20. Thus, according to the learned counsel for the appellant, the trial court’s verdict was perverse and rejection of the application seeking leave to appeal has resulted in grave miscarriage of justice. It has therefore been prayed that the appeal be allowed and the matter be remitted to the High Court to accord fresh consideration on merits.
21. Per contra, the learned counsel for the respondents submitted that, firstly, PW-3 and PW-5, who were travelling with the deceased, have not been able to identify the accused as those who were involved in the killing of the deceased; and, secondly, the deceased died of a gun-shot wound which could be ascribed to a .12 bore weapon, not a rifle which was with the accused. Moreover, some of the empty cartridges lifted from the spot did not match with the rifles of the three accused thereby giving rise to a possibility that someone else was also present with a rifle and had used it. In these circumstances, if the trial court gave the benefit of doubt to the accused, the judgment and order of the trial court cannot be held perverse as to warrant reversal in an appeal.
22. With regard to the testimony of PW-15, the learned counsel for the respondent submitted that PW-15 has been found not reliable for multiple reasons. Firstly, he did not make disclosure to anyone of having witnessed the incident even though the villagers had arrived and congregated at the spot in sufficient numbers to instil confidence in any person to make a disclosure against any person regardless of his position. Secondly, instead of giving his statement to the investigating agency, the witness got an affidavit prepared from a lawyer, who prepared not one but three affidavits identically worded. One was of PW15 and the other two were of those two persons who could not appear as witnesses during the trial. This would indicate that those affidavits were prepared on legal advice. Thirdly, PW15’s version that Anil Kumar took out a country made pistol to shoot the deceased appears improbable for two reasons, namely, there was no proven motive to commit such an act and once they had already fired from their rifles they could easily have used the same to kill the deceased by giving the incident a colour of an encounter.
23. In respect of the incriminating circumstances such as the pr