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CASE NO.: Appeal (crl.)  98 of 1999

PETITIONER: State of M.P through C.B.I., etc.                                 

RESPONDENT: Paltan Mallah, etc.                                                      

DATE OF JUDGMENT: 20/01/2005

BENCH: K.G. Balakrishnan & Dr. AR. Lakshmanan  

JUDGMENT: J U D G M E N T WITH

CRIMINAL APPEAL NOS. 99/1999, 100-102/1999, 103-108/1999, 109- 114/1999

K.G. BALAKRISHNAN, J

       Criminal Appeal Nos. 98-102 of 1999 and Criminal Appeal Nos. 109-114  of 1999 are filed by the State of Madhya Pradesh through CBI and the Criminal  Appeal  Nos. 103-108 of 1999 are filed by the Chattisgarh Mukti Morcha.  All  these  appeals  arise  out  of  the  common Judgment passed by the High  Court   of  Madhya Pradesh  on  26.6.1998.  Nine accused persons were tried  by the Second  Addl. Sessions  Judge,  Durg, M.P.  Accused nos. 1 to 8 were  charged for  the  offence  under  Section  302 read with Section 120B IPC.   The 9th accused  was   charged  under Section  302 read with Section 120B,  and in the alternative, Section 302 read with Section 34 IPC and Section  25(1)(A) and Section 27 of the Arms Act.  The Sessions Judge acquitted A-6  Naveen Shah, A-7 Chandrabaksh Singh and A-8 Baldev Singh Sandhu. A-1  Chandrakant Shah, A-2 Gyan Prakash Mishra, A-3 Avdhesh Rai, A-4 Abhay  Kumar Singh, A-5 Moolchand Shah and A-9 Paltan Mallah @ Ravi were  convicted by the Sessions Judge for the offence under Section 302 read with  Section 120B.  A-9 Paltan Mallah was found guilty of the offence punishable  under Section 302 IPC  and sentenced to capital punishment whereas other  accused were sentenced to life imprisonment.  The High Court by the  impugned Judgment acquitted all the accused of the charges framed against  them.

       Deceased Shankar Guha Yogi was a popular, powerful trade union  leader in the industrial region of Bhillai, Durg, which was part of the then State  of Madhya Pradesh.  Deceased Shankar Guha Niyogi had been working for the  welfare of the labour demanding living wages, bonus, reinstatement of  retrenched workers and he organised the workers of the various industrial units  at Bhillai and Durg.  The labourers had an organisation by name  "CHATTISGARH MUKTI MORCHA" (hereinafter being referred to as "CMM")  and deceased Niyogi became a leader of this organisation.  He was leading the  labourers working at Rajaram Mines area which was a main source of raw  material iron ore for the Bhillai Steel Plant at Durg.  In the year 1989, there was  an agitation by the workers of industrial unit by name ACC, which is a leading  cement manufacturer.  A settlement was reached at the instance of deceased  Niyogi.  The workers in other industrial establishments sought the help of  deceased Niyogi to solve their problems.  In the year 1990, he came to Bhillai  and started occupying quarter no. MIG 1/55of HUDCO.  He stayed there with  his servant Bahal Ram.  The other members of his family continued to stay  near Rajhara. Deceased Niyogi set up an office for CMM at MIG-2/273  HUDCO.  In the year 1990, there was widespread labour movement against

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the management of various industrial units such as Simplex, Kedia, B.E.C, B.K,  etc.  According to the prosecution, the management of these industrial units    started opposing the labour movement and there was even physical attack on  some of the leaders of CMM.  One Uma Shankar Rai, a leader of CMM was  fatally assaulted by the agents of the industrialists.  Deceased Niyogi  apprehended serious threat to his life from the industrialists, especially from  Simplex and Kedia Group of Industries.  He made notes in his diary regarding  the apprehension of danger from the management of these industrial units.  On  27.9.1991, he had gone to Raipur and there he met one Rajendra Sail,  Secretary General of PUCL and reporter N.K. Singh of "India Today".  He  expressed an apprehension of danger to his life from Kedia and also from A-5  Moolchand Shah and A-1 Chandrakant Shah of Simplex Group.   On 27.9.1991  at about midnight, he left Raipur for Bhillai and reached his quarter no. MIG- 1/55 of HUDCO and went to bed.  His servant Bahal Ram was occupying the  neighbouring room.  In the night, Bahal Ram heard a noise like bursting of  crackers and he rushed to the room of Niyogi and found Niyogi writhing in pain  on his bed.  The window was found open.  Bahal Ram called for help of the  neighbour Sripad Mategaonkar.  Few workers from the CMM came to the place  and it was found that Niyogi had been shot.  He was immediately taken to the  Sector 9 Hospital of Bhillai.  Before reaching the hospital, Niyogi succumbed to  the gun shot injuries.  Post-mortem examination was conducted by a team of  doctors and they opined that death was due to bullet injuries.        

       Preliminary investigation was carried out by PW-182 Deputy  Superintendent of Police Shri M.G. Agarwal.  There was agitation by the  workers that investigation shall be conducted by the Central Bureau of  Investigation and the Government of Madhya Pradesh requested the Union of  India seeking help of the Central Bureau of Investigation.  As part of police  investigation, PW-182 visited the scene of occurrence and got prepared map of  the site and he took steps to see that viscera of the victim was sent for  laboratory tests.   He took into custody the pellets recovered from the body of  Niyogi.   He took statements from Bahal Ram, the servant and also from the  widow and daughter of deceased.   He got prepared photograph Exh. P-180 to  P-196.   He got report from Serum    Science and Chemical Analysis which are  marked as Exh. P-430 to P-432.   He recorded statements of various other  witnesses.   Accused A-3 Avdhesh Rai was taken into custody on 13.10.1991.     On 1.11.1991, he seized diary of deceased Niyogi and on 9.11.1991 he  handed over the investigation to CBI officials.  

 PW-187  R.S. Dhankad took over the investigation along with PW 192  R.S. Prasad.   PW-187 held search of Oswal Industry.   He recorded the  statements of Zakkiruddin on 21.11.1991.   This witness identified the  photographs of A-2 Gyan Prakash Mishra and A-3 Abhay Kumar Singh.   PW- 192 conducted further investigation of the case along with other officers.   On  10.11.1991, he seized the window curtains from the house of Niyogi.   On  15.11.1991, he conducted searches of the business premises of Jain and Shah  and Company,  108 A.Khan Goga Complex and recovered articles  under Exh.  P-297.

 After the arrest of accused Paltan Mallah on 25.8.1993, he got  recovered  12 bore country made weapon, 13 live cartridges  of 12 bore, a  foreign made revolver, 6 live cartridges of .38 bore and a  red colour Suzuki  motorcycle.  He sent  Exh. P-403 and 404 to Central Forensic Laboratory  (CBI), New Delhi.   He conducted various other searches and recovered  incriminating  articles from the other accused.   After investigation, final report  was filed.

On the side of prosecution, PW 1 to PW-192 were examined by the trial  court.

       The High Court  by the impugned judgment acquitted  all the accused  and that is challenged before us.    

       We elaborately heard the counsel for the State, counsel for the  Chattisgarh Mukti Morcha and also various other counsel who appeared for the

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accused persons.   The accused  A-1, A-3, A-4, A-5 and A-7 were found guilty  by the Sessions Court on the basis of the circumstantial evidence adduced by  the prosecution.   The Division Bench held that these circumstances were not  sufficient to  prove the guilt of the accused. This being an appeal against  acquittal, this Court would be slow in interfering with the findings of the High  Court, unless  there is perverse appreciation of the evidence which resulted in  serious miscarriage of justice  and if the High Court has  taken a plausible view  this Court would not be justified in interfering with the acquittal passed in favour  of the accused and if  two views are possible and the  High Court  had chosen   one view which is  just and reasonable, then also this Court would be  reluctant  to interfere  with the judgment of the High Court.   With these principles in  mind,  we have carefully considered the evidence of the prosecution.

       The Sessions Judge relied on various items of evidence to prove that  there was a deep-rooted  conspiracy  among the accused to murder the  deceased Shankar Guha Niyogi.   In order to prove the conspiracy, the  Sessions Judge relied on certain circumstances.   One of the circumstance  relied  is that  A-1, A-4, A-5 and A-7 had a strong motive to do away with  deceased Shankar Guha Niyogi.   Motive by itself is not sufficient to  prove the  guilt of the accused.     However, the prosecution adduced  extensive evidence  to  show that A-1, A-4, A-5 and A-7, were owners of certain industries at Durg  and the trade union activities of deceased Niyogi  created a lot of problems in  running their  business and  caused loss to these industries.    M/s Simplex is  one of the  factories referred to by  the witnesses for the prosecution.   Several  witnesses were examined to prove that Simplex and Kedia Distilleries  were  acting against the  interests of the workers and there were series of agitations  by the workers against the  factory owners.   Evidence was also  adduced to  show that  some workers were retrenched from  Simplex and the agitating  workers wanted the reinstatement of the  retrenched workers.    Some of the  witnesses examined by the prosecution turned hostile and did not  support this  version.  The overall  evidence given by the prosecution would only show that  some agitation had been going on against the management of these industries  and the deceased Niyogi was spearheading many of these agitations.   This by  itself would not prove the prosecution case of conspiracy.

               Another item of evidence is the recovery of a diary allegedly maintained  by deceased Niyogi.   The diary of Niyogi was marked Exh. P-93.   In the diary,  Niyogi had written that industrialists like Simplex/Kedia along with higher  officials of Durg district  had formed a fascist gang and that  the sad thing was  that the judiciary of Durg and Rajnanadagaon districts had also joined this gang.    On page 172 of the diary, he had written the names of A-2, A-3.  In a micro  cassette  produced as Article ’C’, deceased Shankar Guha Niyogi had recorded  a speech wherein he  mentioned that he apprehended a danger at the hands of  some persons and he also said that  people of Simplex were indulging in   mischief and in  particular  the fifth respondent Moolchand Shah.     The name  of A-2 was also mentioned  in the diary.   That apart,  deceased Shankar Guha  Niyogi submitted a memorandum  to the President of India.   In this  memorandum  he has stated elaborately the grievances  of the workers and   emphasized that  the industrialists had been doing their utmost to break the  workers organization and they had even resorted to physical violence on  workers.   He  alleged that police personnel were helping the industrialists and  he appealed to the President to  bring a check on these acts of violence by  industrialists.

       The entries in the diary  and certain statements of  the deceased  recorded  on a micro cassette  were sought to be  made admissible as  evidence under Section 32 of the Evidence Act.   Section 32 of the Evidence  Act says that the statement, written or oral,  of  relevant facts made by a  person who is dead,  are themselves relevant facts, but this statement should  have been made as to the cause of his death or as to any of the circumstances  of the transaction which resulted in his death when such question comes  up  for consideration by the court.   It is true that  when such statements were  made,   the maker of the statement need not be under the expectation of  death.   But nevertheless, these statements should give either  the cause of his  death or any of the circumstance which led to his death.   

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               The entries in the diary and the representation Niyogi had submitted to  the President of India were in general terms.   He apprehended some danger at  the  hands of  some industrialists  as the agitation of the workers had been  going on and in some instances the henchmen  of the industrialists had   unleashed physical violence on the workers.   Even though he  had mentioned  the names of some of the accused persons in  the diary and in the cassette, that  by itself may not  be of any assistance to the prosecution to prove the case as  the entries in the diary and cassette  do not refer to any  event  which ultimately  was the cause of his death.  

       Another item of evidence strongly relied on by the prosecution to prove  the case of conspiracy is that some of the accused persons had visited Nepal,  which, according to the prosecution, was to  procure  some illegal weapons to  carry out the common object of the conspiracy.   PW-91 Ravinder Kumar  Mende @ Ravi deposed that the first accused Chander Kant  Shah made the  programme of going to Nepal in a tempo truck and the first accused along with  A-4 Abhay  Kumar Singh and A-3 Avdhesh Rai  went to  Nepal via Banaras.   On the way, they stayed at Khalispur and  reached Nepal on the next day and  stayed at Hotel Kailash.   The second accused Gyan Prakash Misra  reached  there after two days.   The  second accused when questioned under Section  313 Cr.P.C. admitted that they had gone to Nepal on a pilgrimage.    The  prosecution, when conducted a search at the  residence of A-1 Chandrakant  Shah recovered certain articles.   Some of the old bills were   recovered and on   the reverse side of a bill   marked as Exh. P-393 (8)   issued  on 12.11.91 by a   provision store  in Nepal, certain entries have been made in respect of some   foreign-made firearms.   These entries were in the hand writing of the second  accused Gyan Prakash Misra.   The price of the  weapons also is mentioned.    The Sessions court assumed that these accused must have procured some  weapons during their visit to Nepal.   These  entries  in Exh.  P393(8)  by itself  do not prove that fact.   No  bills proving purchase of foreign-made weapons  were recovered from any of these accused persons.   The visit to Nepal was in  March, 1991.   This, according  to the  Sessions Judge  was part of the  conspiracy and not a pilgrimage as the  first accused  had not gone  with the  members of his family.   The visit to  Nepal by these accused persons and the  recovery of a  bill do not advance the prosecution case to prove criminal  conspiracy alleged against  them.

The other items relied on  by the prosecution to prove the case against  the accused are the various recoveries effected by the investigating agency,  but  none of  these items would  prove the involvement of these accused in the   conspiracy.    These items would include Exh. P-239 recovered from the office  of the first accused.   In Exp. P-239 slip, the registration number of the car  which was being used by deceased Niyogi and also the registration number of  a jeep  registered in the name of Chattishgarh Mukti Morcha were written.     This according to the prosecution would show that the accused  were watching  the movements of deceased Niyogi.    We are  not able to attach any further   importance to these documents.

         Another document is Ex-P-298, which is a letter alleged to have been  written by the second accused to the sixth accused indicating that he had  received Rs.20,000/- for the work he had done.    The recovery of this letter by  the investigating officer is surrounded in mystery.   It is alleged that it was found  in  torn pieces and this letter is alleged to have been recovered on 15.12.1991  by the investigating officer when a search was conducted in the office of the first  accused.   The case of the prosecution is that  the money transaction indicated   in Exh. P-298 is the consideration given  to the second accused for  having  caused the death of deceased Niyogi.    PW-158  Devendra Jain was alleged to  be the  person who delivered this letter  to the first accused, but he turned  hostile and did not support the prosecution.   Even if the letter is assumed to be  true, it would only show that there was some money transaction between the  second accused and the sixth accused and in no way  it is  proved that  the  amount of Rs.20,000/- alleged to have  passed between the  parties was in  consideration of the illegal act carried out at the instance of the second  accused.   The High Court was justified in not relying on this document.

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The prosecution  relied on the arrangement of granting the contract for a  cycle stand in the cinema theatre, by name Maurya Talkies.   PW-102  Kamaluddin was examined to prove this fact.   He deposed that the contract   was taken in the name of A-3 Avdhesh Rai and the income from the cycle  stand was  deposited in the Syndicate Bank in the account of the second  accused Gyan Prakash Mishra.   This, according to the prosecution, was an  arrangement made at the instance of A-8 Baldev Singh Sandhu.  PW-102 does  not know anything about the nature of this transaction and there is no other   evidence, oral or  documentary, to  show that the contract of the cycle stand  at  Maurya Talkies has got anything to do with the murder of the deceased  Shankar Guha Niyogi.     

The fact that some  of these accused  had absconded from the place of  their business at the relevant time is also pointed out  by the counsel for the  appellant as an incriminating circumstance.    When the murder of a  trade  union leader took place, there were strong allegations  that the industrialists in  the area had been  instrumental in causing his death.   Under those  circumstances, if any of these accused had absconded from the place, it  could  not be  said to be a factor to  prove their guilt.

Another incriminating  circumstance sought to be proved  against the  accused is the extra-judicial confession alleged to have been made by the  ninth accused  Paltan  Mallah  wherein he named A-1, A-2, A-5  and A-6.    It is  alleged that he made the confession to PW-105 Satyaprakash Nishad and A-9  is alleged to have disclosed to PW-105 that these accused persons had given  him money and he murdered Shankar Guha Niyogi for the sake of money.     Under Section 30 of the  Evidence Act, the extra-judicial confession  made by a  co-accused could be admitted in evidence only as a corroborative piece of  evidence.  In the absence of any substantive evidence against these accused  persons, the extra-judicial confession allegedly made by the ninth accused   loses its  significance and there cannot be any conviction based on such extra- judicial confession.   The High Court, in our view, has given cogent and  satisfying reasons for the acquittal of the accused A-1 to A-8.   We do not find  any reason to interfere with such a finding, especially when this being an  appeal against acquittal and this Court would be slow in reversing such a  finding unless  the High Court had made a perverse  or erroneous appreciation  of the  evidence resulting in grave  miscarriage of justice.    The evidence  adduced by the prosecution  can only throw some serious suspicion against  these accused which cannot be used as a substitute for evidence.

Now we come to the question of the complicity of the ninth accused  Paltan Mallah.  His case stands on a entirely different footing.   There is  evidence against this  accused and the High Court  brushed aside  the  prosecution evidence against him on flimsy reasons.    There are several items  of evidence to show that the ninth accused and none else caused the death of  Shankar Guha Niyogi.    This accused  is a person hailing from Gorakhpur in  the State of Uttar Pradesh.   He had come to Bhilai and was engaged in petty  jobs.    He had been involved  in a series of criminal cases and happened to be  in custody for some period.

PW-63 who was the sub-jailor at Durg jail for the period 1988 to 1992  deposed that the ninth accused Paltan Mallah was lodged as an under-trial  prisoner at Durg jail from 1995  to 1998.   The second accused Gyan Prakash  Mishra  and the third accused Avdhesh Rai were also under-trial prisoners in  Durg jail during this period.    Accused Paltan Mallah had  involved  himself in  several criminal cases  registered for offences punishable under Section 457,  380, 370, 394 IPC and Section 25 of the Arms Act.   He  was also involved in  another case registered under Section 353, 307, 397, 341, 294, 506-B, 323  IPC and Section 25 of the Arms Act and  he was  lodged as a prisoner from  1.3.1988 to 10.8.1988 in Durg jail.   PW-121 is a photographer  who  deposed  that in the beginning of 1991, he had taken photograph of a prisoner  and he  identified the  Exh. P-318  photograph .  This photograph is admittedly that of  the ninth accused Paltan Mallah.

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       The High Court in the impugned judgment stated that there is absolutely  no  evidence to show that Paltan Mallah could have been at Bhilai during the  relevant period.   In a murder that took place during night, there would not  be  any direct evidence to prove the fact, but  various circumstances would show  that the ninth accused was in Bhilai during 1991.   This accused was staying  with PW-51 Reshami Bai.   She deposed that accused Paltan Mallah had gone  to Bombay and this evidence was erroneously taken into consideration by the  High Court.   It is   common knowledge that the  wife of an accused, leave  aside the exceptional cases,   would always give evidence only to support the  husband.

               There is also evidence of PW-66 Nuruuddin.  PW-66 is  running an arms  shop at Sadar Bazar in Raipur.     He deposed that on 14.9.1991 one Birendra  Kumar came to his shop along with a boy to purchase certain material.   He  showed his licence and expressed his intention to purchase a gun.   He told him  that he was acquainted with  a person who was an expert in firearms.   He then  left  the boy in the shop to fetch that armourer.   After 15-20 minutes, Birendra  Kumar came with PW-59 Rajbahadur  who selected a twelve bore  gun   of  single barrel and entries were made in the register.   He  deposed that Birendra  Kumar purchased  five cartridges along with the gun and  few  L.G. cartridges   by using the licence of a person, by name, Satya Narayan Singh.    PW-66  deposed that all along the boy was sitting in  his shop and he identified the boy  as the ninth accused Paltan Mallah.  He further stated that the CBI officials  came and questioned him and  showed him the photograph of that boy.   This  witness  identified the ninth accused Paltan Mallah in the court.

       The counsel for the accused vehemently attacked the evidence of PW- 66.   It was submitted that going by the evidence of PW-75,  P-61 Jakruddin  and PW-72 Jainarayan Tripathi, the accused Paltan Mallah  could not have  been present in the shop   and  that those who were   in the shop were   Birendra Kumar,    PW-59 Rajbahadur   and  the father of PW-59.   According  to PW-61, he had sold 13 cartridges  to Satyanarayan Singh and Birendra  Kumar had signed in the register.  PW-59 Rajbahadur  deposed that he is an  armourer  in the police department.  He deposed that Ram Bahadur, a police  constable told him that his son had taken a licence and he wanted to purchase  a gun.    Rajbahadur and his son went to  the shop of PW-61 for purchasing a  gun.  Based on the evidence of PW-59, PW-61 and PW-72 it was stated that   the ninth accused Paltan Mallah could not have been in the shop of  PW-61,   but  in the face of the evidence of PW-66, we do not think that there  was any   mistake  as to the identity of Paltan Mallah.   Of course,  the fact that the  prosecution  wanted to prove further that the L.G. cartridges were passed on to  these accused and the same were used in the commission of the crime is not  proved by any direct evidence.    PW-66 appears to be an independent  reliable  witness and from his evidence, it is clear that  the accused was at Bhilai during  the relevant period.   It is also proved  by satisfactory evidence that the  accused Paltan Mallah had been involved in cases relating to illegal use of  arms.

The next  evidence against the ninth  accused came to surface  in 1993  at the time of his arrest  by an air-force officer alleging that he was in illegal  possession of certain firearms.    The air-force officer handed over  the ninth  accused to PW-125, who was a sub-inspector at the Rudrapur police station.    On questioning Paltan Mallah, PW-125  came to know that he had been  involved in the murder of Shankar Guha Niyogi.  He informed the CBI officials  and recorded the confession made by Paltan Mallah.   Based on the  confession given by accused Paltan Mallah, certain recoveries were effected.

Based on the information furnished by him,  PW-125 along with PW-104  Dinesh Baloni left  for the village Nibahi and reached the place which   according to the prosecution was the house of the  accused Paltan Mallah.   Another witness Farukh Mirza Baig  accompanied them.   This witness is a  resident of Nibahi.   The accused pointed out that near the northern wall of the  house he had buried certain articles.   The accused Paltan Mallah removed the  earth, took out a bundle wrapped in a plastic sheet.  The bundle contained a  country-made pistol with 13 cartridges,  2 L.G. cartridges   and   others were  

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.38 bore cartridges.  PW-125 recovered these articles and  in the seizure  memo,  Dinesh Baloni, one Ram Bahadur and  Farukh Mirza Baig and the  accused had signed.    From there, they left and reached   the  house of PW- 105, Satyaprakash Nishad,  in village Chainpur, where the accused had hidden  his TVS Suzuki motorcycle.  The motorcycle was recovered and there was no  number plate on the motorcycle.   

The recovery of the country-made pistol at the instance of the accused  Paltan Mallah was seriously challenged on various grounds.   It was contended   by the  counsel that the recovery of the weapon was not effected in accordance  with law and the witness PW-104 Dinesh Baloni was not a resident of the  village Nibahi and that he was brought from a different place only for the  purpose.  It was argued that  as recovery was not effected in accordance with  law, the entire evidence is inadmissible as the search itself is illegal.     The  counsel further contended that the recovery of weapons at the instance of the  accused  Paltan Mallah is not admissible in evidence as the disclosure  statement marked Exh. P-285 would only show that the accused had the  knowledge of the concealment of the weapon and that  he was not the author  of that concealment.   Counsel for the accused Paltan Mallah placed reliance   on  two decisions, namely, (1976) 1 SCC 828 Mohmed Inayatullah vs. State  of Maharashtra and (1980) 1 SCC 530 Pohalya Motya Valvi  vs.    State of  Maharashtra.     The above two decisions are not relevant in this case as in  the Exp. P-285 the accused specifically says that he concealed the weapon  himself.   As  the alleged confession clearly states that the accused himself has  concealed it, the recovery of the weapon assumes importance in this case.

The counsel for the respondent-accused further contended that PW-125  was not investigating the case of accused Paltan Mallah and that the custody  of the accused Paltan Mallah was entrusted to him alleging that he had  unlawfully trespassed into the prohibited area belonging to  Air Force and PW- 125  could have conducted  investigation of that case only and if at all he had  come to know of the involvement of the accused in other cases, he should  have contacted the CBI and informed them of the alleged concealment of  weapon.   It was   pointed out that the CBI officers had reached that place and  met PW-125 even before he went with the accused Paltan Mallah for the  alleged search and seizure.   The counsel submitted that the search and  seizure  was completely illegal and therefore the evidence obtained under such  illegal search is to be completely excluded.   The plea of the appellant cannot  be accepted.  

In India, the evidence obtained under illegal search is not completely  excluded unless it has caused serious prejudice to the accused.  The discretion  has always been given to the court to decide whether such evidence is to be  accepted or not.   In Radha Krishan vs. State of U.P. AIR 1963 SC 822,   speaking for  a  three Judge Bench, Justice Mudholkar held :

"So far as the alleged illegality of the search is concerned, it is  sufficient to say that even assuming that the search was illegal  and the seizure of the articles is not vitiated.   It may be  that  where the provisions of Sections 103 and 165 of the Code of  Criminal Procedure are contravened the search could be resisted  by the person whose premises are being searched.   It may also  be that  because of the illegality of the search the Court may be  inclined to examine carefully the evidence regarding the seizure.    But beyond these two consequences, no further consequence  ensues."

In a subsequent decision reported in  Pooran Mal vs. Director of  Inspection (1974) 1 SCC 354,  this Court held :

"So far as India is concerned its law of evidence is modeled on  the rules of evidence which prevailed in English Law, and Courts  in India and in England have consistently refused to exclude  relevant evidence merely on the ground  that it is obtained  by  illegal search or seizure\005. It would thus be seen that  in India, as

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in England, where the test of admissibility of evidence lies in  relevancy, unless there is an express or necessarily implied  prohibition in the Constitution or other law, evidence obtained as a  result of illegal search or seizure is not liable to shut out."

This decision was later followed in  Dr. Pratap Singh vs. Director of  Enforcement  (1985)  3 SCC 72.

The provisions contained in the Criminal Procedure Code  relating to  search and seizure are safeguards to prevent the clandestine use of powers  conferred on the  law enforcing authorities.  They are powers incidental to the  conduct of investigation and the legislature has imposed certain conditions for   carrying out search and seizure in the Code.   The courts have interpreted  these provisions in different ways.  One view is that disregard to the provisions  of the Code of Criminal Procedure relating to the  powers of search and  seizures amounts to a default in doing what is enjoined by law and in order to  prevent default in compliance with the provisions of the Code, the courts  should take strict view of the matter and  reject the evidence adduced on the  basis of such illegal search.   But often this creates a serious difficulty in the  matter of proof.  Though different  High Courts have taken different views, the  decisions of this Court quoted above have settled the position and  we have   followed the English decisions in this regard.   In the Privy Council  decision in   Kuruma v.  The Queen (1955) A.C. 197, Lord Goddard, C.J. was of the  firm  view that in a criminal case the Judge always has a discretion to disallow  evidence if the strict rule of admissibility would operate unfairly against an  accused.  The trend of judicial pronouncements is to the effect that evidence  illegally or improperly obtained is not per se inadmissible.  If the violation  committed by the investigating authority is of serious nature and causes  serious prejudice to the accused, such evidence may be excluded.  

It may also be noticed  that  the Law Commission of India in the 94th  Report suggested the incorporation of  a provision in  Chapter 10 of the Indian  Evidence Act, 1872.  The suggestion  was to the effect that in a criminal  proceeding,  where it is shown that anything in evidence was obtained by  illegal or improper means, the court, after considering the nature of the illegality  or impropriety and all the circumstances under which the thing tendered was  obtained, may refuse to admit it in evidence, if the court is of the opinion that  because of the nature of the illegal or improper means by which  it was  obtained, its admission would  tend to bring the administration of justice into  disrepute.  The Commission also quoted the various circumstances  surrounding the proceedings that may  entail the exclusion of such evidence  but the suggestion of the Law Commission was not accepted and no legislation  was effected in line with the recommendations of the 94th Report of the Law  Commission and the position continues to be that the evidence obtained under  illegal search  could still be admitted in evidence provided there is no express  statutory violation or violation of the constitutional  provisions.   For example, if  certain  specific  enactments are made and the search or seizure is to be  effected in accordance  with  the provisions of such enactment, the authorities  shall comply with such provisions.   The general provisions  given in the  Criminal Procedure Code are to be treated as guidelines  and if at all there is   any minor violation, still the court can  accept  the evidence and  the courts  have got discretionary power to either accept it or reject it.

  In the instant case, we do not think that the court has violated any  such provision merely because the witness was not  from the same locality and   his evidence cannot be rejected.

The  next important evidence against the respondent-accused Paltan  Mallah  are the two extra-judicial confessions allegedly made by him to two  witnesses.   The  first is the confession  the appellant is  alleged to have made  to PW-105 Satyaprakash Nishad and the second to  PW-124 Bishambhar  Prasad Sahni.    PW-105 Satyaprakash Nishad is related to Paltan Mallah.    He   deposed that in 1991 Paltan Mallah came to  Chainpur village which is about  35-40 kms. away from his village at Nibahi.   PW-105 deposed that Paltan  Mallah told him that he is involved in the murder of a leader and the CBI was in

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search of him and on further questioning he  told the entire details.   He gave   the names of other accused also and informed the witness that CBI had  announced Rupees one lakh as reward for his capture  and therefore he wanted  to go to Nepal.  The witness agreed to take him to  Pohari Bazar where his  sister was married  to one Keshnath Nishad.    The witness further deposed that  he took Paltan Mallah to his brother-in-law who was working  in the Railways,  but his brother-in-law said he could not hide Paltan Mallah.  He had also given  evidence to the effect that  Paltan Mallah left  his  motorcycle at his residence  and he  later came to know that in August, 1993  Paltan Mallah was caught by  the police.  The evidence of this witness was seriously challenged in cross- examination.   He was extensively cross-examined and  a perusal of his cross- examination would show that the witness could withstand the cross-examination  successfully.  His evidence is to be appreciated in the light of the evidence of  PW-124 and also the recovery of the motorcycle from the  premises of the  witness.   The evidence of PW-124 fully supports the evidence of PW-105.    PW-124 Bishambhar Prasad Sahni was  the headmaster of a school during the  relevant time and he was working in the Higher Secondary School of Navalparsi  since 1976.  He is a post-graduate from Tribhuvan University and his relatives  are in  village Kusha (U.P.).   PW-124 deposed that accused Paltan Mallah  came to his house along with Keshnath, the brother-in-law of PW-105.   They   came in the evening and on the next morning he asked Paltan Mallah about  the  purpose of his visit.   Then Keshnath told that Paltan Mallah was a distant  relative of his brother-in-law  and that he should get some safe place for him   in  Nepal.   The witness asked why he wanted to stay in Nepal and Paltan Mallah  had a  detailed discussion and he revealed that he had murdered Shankar  Guha Niyogi  in complicity with Gyan Prakash Mishra.   The witness deposed  that he got agitated and angry and scolded his brother-in-law Keshnath and  asked them to leave the place immediately.   The statement of PW-124 was  recorded in 1993, but in the cross-examination, he mistakenly stated that CBI  officers had come there fifteen days after  the departure of Paltan Mallah.   This  evidently is a mistake and for this sole reason the evidence of this witness was  discarded.    The extra-judicial confession made by the accused Paltan Mallah  to PW-124 is unimpeachable.   PW-124 is a headmaster of a school who had   no axe to grind against the accused and he was working at a far distant place  and the CBI must have come to know of the alleged extra-judicial confession  made on the basis of questioning the accused.   The questioning  of PW-124 by  police  was in 1993.   The extra-judicial confession implicating the second  accused Gyan Prakash Mishra  is not strictly admissible as it is a confession  made by a co-accused and  could be used only as a supporting evidence.    Though the evidence as such cannot be used against Gyan Prakash Mishra,  the extra-judicial confession revealed by PW-124 Bishambhar  Prasad Sahni is    reliable and trustworthy and fully supported by the evidence of  PW-125 and we  find no reason to discard the same.

Then  the most important item of evidence against the accused,  Paltan  Mallah,  is the report of the ballistic expert.  PW-192, the Deputy  Superintendent of Police of  the CBI  deposed that after the arrest of  the  appellant Paltan Mallah on 25.8.1993, he recovered one 12 bore country-made  pistol, 13 live cartridges 12 bore, one foreign made pistol, 6  live cartridges of  .38 bore and a motorcycle.   The country-made pistol, the foreign made pistol  and the cartridges were sent for examination by the ballistic expert to the  Central  Forensic & Science Laboratory, New Delhi.    During the post-mortem  of the deceased Shankar Guha Niyogi, three pellets  were extricated from his  body.  These pellets were sent  to Forensic Laboratory at Sagar and thereafter  they were deposited in the court by PW-192 and these pellets were also later  on  obtained from the court and  sent  for examination  by the CFSL.   PW-159,  the ballistic expert conducted detailed laboratory test-fires and microscopic  examination and he gave Exh.P-398 report wherein he opined that three lead  pellets marked  P-1 to P-3 must have been fired from a  12 bore  country-made  pistol.   He deposed that he had prepared the report on the basis of the  microscopic examination and he  had also taken photographs of the pellets and  Exh. P-398 are the work-sheets of the report prepared by him.

The evidence of PW-159 and his report are seriously challenged by the  counsel for the respondent accused.   He extensively referred to the text books  

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written by foreign ballistic experts such as Burrad, Hatcher and Taylor.   It was  argued that  in the instant case, the weapon was a country-made pistol and the  barrel was not grooved and  there was absolutely no question of any  identifiable marking coming on the pellets to enable the  expert to give any  opinion whatsoever.   Reliance was placed by him on the observations of this  Court in Ram Avtar and Others Vs. Ram Dhani and Others (1997) 2 SCC 263  wherein this Court relied on the opinion of J.S. Hatcher in his text book of Fire  Arms & Investigation to the effect that "unless there were rifling marks in the  bullets which were not defaced by the entry in the bodies of the victims, no  expert can ordinarily and generally give an opinion."   It was also pointed out  that in the case of country-made pistol, it was difficult to assume that the  ballistic expert could have found identifying marks on the pellets.   The  evidence given by the ballistic expert was questioned in great detail.   He was  cross-examined extensively by counsel for all the accused.   He deposed  in  the cross-examination that when  these  pellets are fired, then they among  themselves would press each other  inside the  barrel [on inside parts] their  effect  could  be on one side of inner side of barrel, they will take special  individual mark on them and these  marks will be in  the form of a line on the  pellets and if  the barrel is tight then pellets will be more rubbed,  and on more  parts,  lines will come.   If barrel is tight then half part of the pellets   are  pressed and the barrel was nicely tight and the witness himself said that in the  test fire which he did on all of the six pellets good marks of barrel had come.    He had also stated that he had taken micro-photograph of only one pellet and  had compared all pellets but he had not made any separate comparative  record or photograph.

It was argued that micro-photographs were not produced and mere  observation by the expert   was not sufficient and that he should have  produced these photographs.   We do not think that there was any such  necessity to produce the micro photographs when the expert has given  convincing reasons to support his opinion.   This Court in Ramanathan vs.  State of Tamil Nadu  [1978] 3 SCC 86 held that the production of such  photographs is not necessary and such a plea was rejected.   In paragraph 26,  it was held as under :

"It is true that there has been considerable difference of opinion  amongst investigators regarding the use of photographs in a court  for the purpose of illustrating the matching of the markings, and  while it may be that microscopic photographs, when taken with  due care and in the best of conditions, may enable the evidence  to be placed on the record in a visible form, it cannot be denied  that a court would not be justified in rejecting the opinion of an  expert who has examined the markings under the comparison  microscope simply  for the reason that he has not thought it  necessary to take the  photographs.   It is therefore not possible  for us to reject the evidence of Ramiah (PW 23) who has  categorically stated that he had compared the land and groove  markings on the bullets under a comparison microscope, simply  because he did not think it necessary to take the photographs."

In the case of the respondent-accused  Paltan Mallah, there is  overwhelming evidence to prove his complicity in the crime.   The recovery of  the country-made pistol at his instance,  which is proved to  have been used for  causing the death of Shankar Guha Niyogi;   and the evidence of  the ballistic  expert coupled with two extra-judicial confessions   made to PW-105 and PW- 124 support the prosecution case  fully.   There is also prosecution evidence to  the effect   that the accused had got accessibility to the weapons and that he  was staying at the place of occurrence and doing various jobs.    It is also  established that accused Paltan Mallah is involved in other offences relating to  fire-arms.   Though there is no direct and convincing evidence against other  accused, the case against Paltan Mallah is proved beyond reasonable doubt.    He was acquitted by the High Court on fanciful reasons.    The evidence of  extra-judicial confessions was rejected without any valid reasons.   The report of  the ballistic expert also was not appreciated in the correct perspective by the  High Court.   In our view, the Division Bench seriously erred in acquitting the

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respondent-accused Paltan Mallah.

In the result, we reverse the acquittal of the respondent-accused Paltan  Mallah.    The incident leading to these appeals had taken place as early as  1991.   As there is a long lapse of time, we do not think that the sentence of  death imposed upon him by the Sessions Court is justified in the circumstances.   We set aside the acquittal of respondent-accused Paltan Mallah and find him  guilty of the offence punishable under Section 302 IPC and sentence him to  undergo imprisonment for life.   

The appeals preferred by the State and also by the Chhatishgarh Mukti  Morcha   are allowed to the extent indicated above.   All other appeals shall  stand dismissed.    The   acquittal of other accused by the High Court is  confirmed.