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CASE NO.: Appeal (crl.) 784  of  2000 Appeal (crl.)   785      of  2000

PETITIONER: LOKEMAN SHAH AND ANR.

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT:       11/04/2001

BENCH: K.T. Thomas, R.P. Sethi & S.N. Phukan

JUDGMENT:

THOMAS, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   On  the day of Holi celebrations, seventeen years ago in Calcutta,  (as the city was then known) an infuriated motley mob  carmined  one street not with Gulal (which  is  often used by ecstatic celebrants) but with human blood.  They ran berserk blinded by communal frenzy and unleashed a terror of murder  spree  on  18.3.1984, along Fatehpur  Village  Road, which  was within the limits of Garden Reach Police Station. Two among the innocent casualties of the gory episode were a young  IPS officer and his security guard, both of whom were violently murdered.

   Four  persons,  out  of a number  of  accused  arraigned before  the  Sessions  Court  for murder  and  other  allied offences, were convicted and sentenced to death by the trial court  at  the first round.  But on a retrial as ordered  by the High Court the Sessions Court confined the conviction to two persons (the appellants herein) and awarded the sentence of  death  to  both of them.  A Division Bench 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

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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) besides some other  police personnel.   When they felt that the infuriated rioters were thirsting  for  victims  they thought it safe to go  into  a mosque expecting asylum.  But the Imam of the mosque was not disposed  to afford a shelter to such people.  So they  went out  of the mosque.  The security guard Mukhtar Ali ran into the  house  of  a  private   individual  while  the   Deputy Commissioner  ran into the house of a police constable  (PW- 21 Abdul Latif Khan).  As the rioters were chasing him PW-24 Md.  Hadis Khan son of PW-21 Abdul Latif Khan gave asylum to the Deputy Commissioner in his house.

   The  rioters  spotted  the  fleeing  cops.   The  Deputy Commissioner  in order to save himself from the fury of  the chasing  mob got into the bathroom of the house of PW-21 but a  few  of  the marauders pursued him up to that  place  and caught  him  and  killed him.  The security guard  was  also intercepted  by the blood thirsty assailants and he too  was killed.  Not having satisfied with the death of these police personnel the killers mutilated their corpses, stripped them off,  tethered them and tried to incinerate the dead  bodies which succeeded only partly as the bodies remained charred.

   We  may  refer  to  the evidence focussing  on  the  two appellants  alone.  As against appellant Nasim @ Naso, PW-24 Hadis  Khan  has deposed that he saw that accused among  the assailants inflicting two blows with an iron rod on the head of  the Deputy Commissioner of Police, the first blow caused his  helmet  to slide off, but the second blow fell  on  the head  of  the victim.  The doctor who conducted the  autopsy noted as many as twenty two ante-mortem injuries on the dead body  of the Deputy Commissioner, out of which the  injuries on  the  head consisted of a depressed  comminuted  fracture involving  the right frontal and parietal and left  temporal bones  of  the skull crushing the brain.  According  to  the doctor the said injury could be inflicted by an iron rod and that  was  sufficient  in the ordinary course of  nature  to cause death.

   Shri  A.K.   Ganguli, learned senior counsel who  argued for  the  appellants contended that the testimony  of  PW-24 cannot  be treated as wholly reliable and hence there is  no legal  justification  in relying on his evidence  being  the solitary  item  as against appellant Naso.   Learned  senior counsel   alternatively   contended  that    there   is   no corroboration  for the evidence of PW-24 (Md.  Hadish  Khan) in  so  far  as he implicated 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

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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 corroborative  material.   (vide State of T.N.  vs.   Suresh and anr.  {1998 (2) SCC 372}.

   Thus  we have no reason to dissent from the findings  of the  trial  court in so far as the involvement of  appellant Naso  in  the murder of Deputy Commissioner of Police  (V.K. Mehta)  is concerned.  The conviction of the offences  under different  counts  passed  on that appellant thus  needs  no interference.   The  question whether the sentence of  death passed on him need be altered or not can be dealt with while considering the appeal filed by the State of West Bengal for enhancement  of  the  sentence passed on the  co-  appellant Lokeman Shah.

   Now  we proceed to consider the appeal filed by  Lokeman Shah.   The  only  evidence which prosecution  succeeded  in adducing  against  him  is  a statement  (Ext.13)  which  is described  as  confessional statement of  appellant  Lokeman Shah as recorded by PW-51 P.K.  Deb (Sub Divisional Judicial Magistrate).  That statement was acted on by the trial court and  the High Court as a confession voluntarily made by  the appellant,  and  the conviction of that appellant  was  made entirely  on  the  said material.  Before dealing  with  the contention  advanced  by Shri A.K.  Ganguli, learned  senior counsel  we  deem  it apposite to extract the  substance  of Ext.13 below:

   At  about  10 or 10.30 A.M.  Naso, Puttan,  Akhtar  and Chowdhary  came  to me for money.  They said that money  was needed  to buy weapons to fight against persons who set fire to the mosque if they created any trouble.  I told them that I  would  also fight out.  After they ran away I  heard  the sound  of  a commotion around 11.45 A.M.  I saw  two  police officers  scampering  and  many   who  chased  them  pelting brickbats  at them.  One policeman in white uniform went  to the house of the Mulla and the other police officer in Khaki dress  ran  straight.  I threw a brickbat when  that  police officer  crossed  me, but I do not know whether it hit  him. He  entered  the house of PW-21 and he was chased by  others who  threw  brickbats  at  him.  I also  threw  one  or  two brickbats  but  I am not sure whether they hit him  or  not. After  some  time  four persons (Naso,  Puttan,  Akhtar  and Chowdhary)  came  from the side of Battikal mosque.   I  was also  taken by them inside the house of PW-21.  I found  the police  officer  in Khaki dress standing near  the  kitchen. When  he revealed his identity as the DC some among us  said that  they did not know whether he was DC or not.  Then  all 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

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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 sentences  culled  out  separately from the rest of  it,  in order  to say that they are not tantamounting to inculpative nature.   But  the  test of discerning whether  a  statement recorded  by  judicial magistrate under Section 164 from  an accused  is  confessional  or  non-confessional  is  not  by dissecting  the statement into different sentences and  then to  pick out some as not inculpative.  The statement must be read  as  a  whole  and then only the  court  should  decide whether   it  contains  admissions   of  his   incriminatory involvement  in the offence.  If the result of that test  is positive  then the statement is confessional, otherwise not. Applying that test on Ext.13 statement we have no doubt that it is a confessional statement.

   Learned  counsel  contended that the confession  without corroboration cannot be acted on for the purpose of entering a  conviction.   We  are  unable  to  agree  with  the  said submission  as  a legal proposition.  Way back in 1957,  the Supreme  Court has laid down the law in explicit terms  that confession  if  true  and  reliable can form  the  basis  of conviction.   [vide  Balbir Singh vs.  State of Punjab  (AIR 1957  SC  216), Pyare Lal Bhargava vs.  State  of  Rajasthan (AIR 1963 SC 1094 = 1963 Supple (1) SCR 689) and Ram Chandra Prasad Sharma vs.  State of Bihar (AIR 1967 SC 349 = 1966(3) SCR 517].  Yet this Court said time and again that as a rule of  prudence  the  court must seek  other  circumstances  to corroborate  a  confession,  particularly when the  same  is retracted.   There  also  the delay involved in  making  the retraction  was  considered  relevant for a court  to  judge regarding  genuineness  of the confession.  Even  about  the extent  of corroboration this Court has pointed out as early as  in  1954,  that if it is insisted that each  and  every circumstance mentioned in the confessional statement must be separately  and  independently  corroborated then  the  rule would  become  meaningless  inasmuch   as  the   independent evidence itself would afford sufficient basis for conviction and  hence it would be unnecessary to call the confession in aid.  (vide Hemraj vs.  The State of Ajmer (1954 SCR 1133). This  was reiterated by a three-Judge Bench of this Court in Balbir Singh vs.  State of Punjab (supra).  This is what the learned Judges observed then:

   It  is  necessary  to emphasise here that the  rule  of prudence  does not require that each and every  circumstance mentioned in the confession with regard to the participation 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

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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 death  of  Idris  as  a sufficient  ground  to  eclipse  the voluntariness  of  the confession of Lokeman Shah which  was recorded  by a judicial magistrate.  In this context we  may also point out that there is no allegation that the Judicial Magistrate  has not adopted all the precautions enjoined  by law  before  recording the confession.  No  other  formality prescribed  under  law has been infringed by PW-51  Judicial Magistrate.

   It  is on the next point (whether anything more could be built  up on the basis of the confession) that Shri Ganguli, learned  senior  counsel for the appellant, and  Shri  Altaf Ahmad,  learned Additional Solicitor General, appearing  for the State of West Bengal, argued in extenso.  Learned senior counsel  for the appellants pointed out that de hors  Ext.13 there  is not even a shred of evidence for involving accused Lokeman  Shah  with  this  crime   and  hence  even  if  the confession  in  its full text is received in evidence it  is impermissible  to  add  anything to it for  the  purpose  of building  up  a conviction of the confessor.  At  the  first blush we felt that the above contention was impressive.  But after hearing Shri Altaf Ahmad, learned Additional Solicitor General and after ruminating deeper into it we felt that the contention is not legally acceptable.

   The  confession  shows that appellant Lokeman  Shah  got himself  involved in the episode and the role played by him. True,  he  did not say in so many words that he  shared  the common  object  of  the unlawful assembly.   Usually  nobody would say like that.  We may observe that even a witness for prosecution  in cases involving unlawful assembly would  not testify  in court that the accused persons had a  particular common  object.   It  is normally the judicial work  of  the court  to  make out from proved facts whether  a  particular accused  shared  the common object of the  assembly.   After all,  the common object once formed would invariably  remain in  the minds of the members of the unlawful assembly and it is very seldom that they proclaim it to be heard by others.

   A  fact is said to be proved when, after considering the matters  before it, the court either believes it to exist or considers its existence so probable that a prudent man ought under  the  circumstances of a particular case, to act  upon the  supposition  that  it exists, (vide Section  3  of  the Evidence  Act).  What is required is materials on which  the court can reasonably act for reaching 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}].

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   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  first part  deals with the commission of an offence by any  member of the unlawful assembly in prosecution of the common object of  that assembly.  Second part deals with commission of  an offence by any member of an unlawful assembly in a situation where other members of that assembly know to be likely to be committed  in  prosecution of that object.  In  either  case every  member of that assembly is guilty of the same offence which another members committed in prosecution of the common object.  The focal point is the common object.

   In  Mizaji  vs.  State of U.P.  (AIR 1959 SC  572)  this Court  vivisected  S.149  into two parts and held  that  the first  part means that the offence committed in prosecution of  the common object must be one which is committed with  a view  to accomplish with the common object.  Learned Judges further  observed  that  the   offence  committed  must  be connected immediately with the common object of the unlawful assembly  of  which accused were members. If it is to  come under  the  second part, the court must be in a position  to hold that the offence committed was such as the members knew was  likely  to  be committed, even if the offence  was  not committed  in direct prosecution of the common object.   But in  that event mere possibility of commission of offence  by one  of  the  members of the assembly is not  enough.   Mere possibility would swing only in the range of might or might not  happen.  A higher degree of possibility is required to say  that  the member of the assembly knew that the  offence was reasonably likely to be committed.  In Muthu Naicker vs. State  of  T.N.   (AIR  1978 SC 1647) this  Court  made  the following observations, which should always be borne in mind by  the courts while considering the application of S.149 of the  Penal  Code.   Whenever an  uneventful  rural  society something  unusual occurs, more so where the local community is  faction  ridden and a fight occurs amongst  factions,  a good number of people appear on the scene not with a view to participating  in the occurrence but as curious  spectators. In  such  an  event mere presence in the  unlawful  assembly should  not be treated as leading to the conclusion that the person  concerned was present in the unlawful assembly as  a member of the unlawful assembly.

   In  that  case this Court held that where a large  crowd collected, and one among them committed a stray assault on a victim,  the  said  assault  cannot be  treated  as  an  act committed  in  prosecution  of  the  common  object  of  the unlawful assembly.  Nor can the remaining accused be imputed

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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 pertains to a person who  intentionally joins  an unlawful assembly and continues to involve himself in  it.   The only condition which the section envisages  is that  the person who joins the unlawful assembly should have been  aware  of  the facts which rendered such  assembly  as unlawful.   If  he knew that an unlawful assembly  had  been formed  with a common object and if he has chosen to join it en-route  to  its destination the person joining midway  can also  be fastened with the vicarious liability envisaged  in Section  149 of the IPC, unless he drops himself out  before reaching such destination.

   We  have no doubt that appellant Lokeman Shah joined the unlawful  assembly  knowing fully well that it  had  already become  unlawful  as  its  common object was  to  chase  the persons  whom  the  rioters believed to be  responsible  for defilement  of  the  mosque.   It  is  immaterial  that  the deceased  V.K.   Mehta  had no part in  the  destruction  or defilement of any mosque, but the rioters believed him to be the one.  We must bear in mind that the chasers carried with them  explosive  and  lethal  weapons.  In  all  such  broad circumstances  it would be inane to presume that the  common object  of  those chasers was something less than  finishing the prey whom they were chasing after.

   For  the  aforesaid  reasons  we are  not  persuaded  to interfere  with the conviction passed by the trial court and concurred  by  the High Court, in respect of  the  appellant Lokeman Shah.

   The  last  and  the only remaining aspect  is  regarding sentence.  Appellants had neither any previous enmity to the victims nor even any acquaintance with them.  It is admitted fact  that  they  acted in a rage of fury blind-  folded  by communal  frenzy.  We are aware that in most of the communal riots  the  participants  are by and  large  illiterate  and indoctrinated people.  When the literate leaders try to keep themselves  away, without participating in the  perpetration of  crimes  though, perhaps, some such persons would fan  up the  communal frenzy by their utterances in the minds of the ignorant  poor  people who in a deranged fury rush into  the streets  prowling for prey.  It was an unfortunate plight of the  people who are ignorant about the real sublime thoughts of religions that they threw themselves into the cauldron of communal  delirium  which was burning up to  boiling  point.

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That  was  a  time  when the minds  of  the  rioters  turned demented  and  no sensible thoughts would enter  into  them. The  leaders  and the society have not played their part  to teach  them that religions are not meant for killing  fellow human  beings.  If ignorance had prompted people to take  up cudgels  in the name of religion for indulging in carnage or murders  they  are  no  doubt liable  to  be  convicted  and sentenced  for  the offence committed by them.  But we  have great  difficulty to treat such a case as rarest of the rare cases in which the alternative sentence of life imprisonment can unquestionably be foreclosed.

   Thus,  we alter the sentence passed on Nasim @ Naso  for the  offence under Section 302 read with Section 149 IPC and impose  the next alternative (imprisonment for life) for the said  offence.  Subject to this modification of the sentence we dismiss both these appeals.