SHEO SHANKAR SINGH v. STATE OF JHARKHAND & Anr.

HELD:1.

The legal position regarding proof of motive as an ·ess~ntial requirement for bringing home the guilt of the accused is fairly well settled. There is a clear F distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon_ G which the prosecution may rely. Proof of motive, however, recedes into the background i,n,.:-e:ases where the prosecution relies upon an eye-witn-Eiss account 9f the occurrence. That is because if the co1,1rt upon a-'P'roper I H • 318 SUPREME COURT REPORTS [2011) 4 S.C.R. A appraisal of the deposition of the eye-witnesses comes to the conclusion that the version given by them Is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely even If prosecution succeeds in establishing a strong motive for the B commission of the offence, but the evidence of the eye witnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on c an eye-witness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eye- witnesses. [Para 13) [337-0-H; 338-A] D

1.

The case at hand rests upon the deposition of the eyewitnesses to the occurrence. Absence of motive would not, therefore, by itself make any material difference. But if a motive is indeed proved it would lend support to the prosecution version. [Para 14) [338-C] E

1.

In the instant case, the depositions of PW16, PW15 and PW19 are relevant on th-e question of motive. There is evidence to prove that a petrol pump stood In the name of PW1_pwhich had been allotted In his name In the F Scheduled Tribe's quota. It is also evident that to establish and run the said .Petrol pump, PW15 had taken the help from appellant S and his father. Disputes between the original allottee and the appellant-$ and his father had, however, arisen and manifested in the form of civil and G criminal cases between them. PW15 had In that connection taken the help of the deceased who had with the help of the police and local administration secured the restoration of the petrol pump to PW15 which annoyed the appellant-$ and his father. There Is also evidence to the effect that the deceased had acted against what has H 'HEO SHANKAR SINGH v. STATE OF JHARKHAND 319 &ANR. been described as 'coal mafia' of Dhanbad with thei help A of police and administration to prevent the coal theft in the region and the steps taken by the deceased had resulted in the arrest of the father of appellant S and a co accused in connection with the said cases.

2.2. The depositions of all the witnesses satisfactorily prove that the appellants were seen hanging around the place of occurrence on the incident date and were seen together riding a motorcycle without registration number going towards Govindpur at around 1.30 p.m. which is s proximate in point of time when the deceased was gunned down. From the deposition of PW1 it is further proved that the witness had identified appellant-U as the person who was riding the motorcycle sitting behind appellant-S not only in the Court, but also in the test c identification parade held during the course of investigation. [Para 27] [344-D-E] D

2.3. It is clear that while the motorcycle on which the deceased was travelling along with PW16 was seized from the place of occurrence in terms of seizure memo, the Motor Cycle used by accused was seized from the premises owned by appellant-S. From a reading of the seizure memo it is evident that the motorcycle was a black colour, Caliber Bajaj make with no registration number on the plate. From the motorcycle was recovered E a certificate of registration and fitness showing the name of the brother of appellant-S, as its owner .. [Para 28] [345- F-H; 346-A]

2.

The prosecution led evidence to prove that the F empty cartridges of 9 M.M. bullets were seized from the place of occurrence. One of the empty cartridges was recovered from near the dead body while the other was recovered from the mud footpath on the southern side of the road. This is evident from the seizure memo. In G addition and more importantly is the seizure of light green T-shirt of the complainant- (PW-16) with blood stains at the arm and back thereof. The T-shirt is torn near the left shoulder. Blue coloured jeans worn by the witness was also seized with a tear on the left knee. The H deposition of PW1 and PW2 support these seizures • SHEO SHANKAR SINGH v. STATE OF JHARKHAND 321 &ANR. which corroborate the version of the prosecution that the A .occurrence had taken place at the spot from wtu~re the dead body, the motorcycle, the empty cartridges and the blood stained earth were seized. The seizure of the T shirt and the Jeans worn by PW16 with bloodstains on the T-shirt, scratches damaging the T-shirt near the left B the Jeans on the left knee also shoulder and corroborates the prosecution version that when hit by the . . bullet fired by the pillion rider of the motorcycle ~driven by appellant-S, the motorcycle on which the deceased was travelling lost its balance bringing both of them down to c the ground and causing damage to the clothes worn by PW16 and injuries to his person. The Courts below correctly appreciated the evidence produced by the prosecution in this regard and rightly concluded that the seizure of the article's mentioned above clearly supports the prosecution version and the sequence of ev~ehce underlying the charge. [Para 29] [345-B-G] 0 ·- ·. 2 .

The third aspect is the medical evidence, supporting the version of PW16' that he had sustained injuries when he fell down from the motor cycle aftei".·the E deceased had been shot by the appellant-LI. The medical certificate goes on to state that the injuries had been · caused by hard and blunt substance. The making of the requisition by the Medical Officer (by which PW16 was sent for treatment with request for issue of an injury F report), the medical examination of PW16 and presence of injuries on his person were satisfactorily proved by the prosecution and go a long way to support the prosecution version that PW16 was driving the motorcycle at the time of the incident and had sustained G injuries once he lost his balance after the deceased sitting on the pillion was shot by the appellant-LI. [Paras 30, 31] [345-H; 346-B-C; F-H]

2.

PW16 was cross-examined extensively but his deposition was accepted by the Courts below who found H 322 SUPREME COURT REPORTS [2011) 4 S.C.R. • A B the version to be both consistent and reliable. There is nothing inherently improbable about the manner in which PW16 narrated the occurrence or his presence on the spot. There is not even a suggestion of any enmity between the appellants and the witness nor a bias favouring the prosecution to make his version suspect. The narration given by the witness is natural and does not suffer from any material inconsistency or improbability of any kind. The presence of the witness on the spot is proved by PWs 1 & 2, both of whom reached c the place of occurrence immediately after hearing about the killing of the deceased and met PW16 on the spot. Both these witnesses have testified that the T-shirt worn by the witness was bloodstained and the motorcycle which he was driving was lying on the spot with the dead o body of the deceased at some distance. Both of them have signed the statement made by PW16 before the police which constitutes the first information report about the incident in which both of them have claimed that they have seen appellant-$ with one other person going on the motorcycle whom they could identify. The presence of PW16 on the spot is testified even by PWG, also an eye-witness to the occurrence. That apart the presence of injuries on the person of the PW16 duly certified by the medical officer concerned, and the fact that the T-shirt worn by him was torn at two different places F corresponding to the injuries sustained by him also corroborates the version given by the witness that he was driving the motorcycle as claimed by him when the deceased was gunned down. [Para 34] [348-F-H; 349-A- E G E]

2.

The first information report was registered without any delay and PW16 was medically examined on the incident date itself, though late in the evening. All these circumstances completely eliminate the possibility H of the witness being a planted witness. The testimony of • SHEO SHANKAR SINGH v. STATE OF JHARKHAND 323 & ANR. this witness and the deposition of the PWs 1 and 2 prove A his being with the deceased before the incident and being on the spot immediately after the occurrence with bloodstains on his clothes with the motorcycle being driven by him lying nearby. Therefore, the finding recorded by the two courts below that the deceased was B travelling with PW16 on the latter's motorcycle from Dhanbad to Nirsa at the time of the occurrence and was, therefore, a competent witness who could and has testified to this occurrence, as the same took place, is affirmed. [Para 35] [349-F-H; 350-A-B] · c

3.1. Identification of an accused in the Court by a witness constitutes substantive evidence in a case although any such identification for the first time at the trial may more often than not appear to be evidence of a weak character. That being so, a test identification D par~de (TIP) is conducted with a view to strengthening the trustworthiness of the evidence. Such a TIP then provides corroboration to the witness in the Court who claims to identify the accused persons otherwise unknown to him. Test Identification parades, therefore, E remain in the realm of investigation. The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any provision under which the accused may claim a right to the holding of a test identification parade. The failure F of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the Court. As to what should be the weight attached to such an identification is a matter which the Court will determine G in the peculiar facts and circumstances of each case. In appropriate cases the Court may accept the evidence of identification in the Court even without insisting on corroboration. [Para 37) [350-F-H; 351-A-C] H 324 SUPREME COURT REPORTS [2011] 4 S.C.R. A 0

3.2. The omission of the investigating agency to associate PW16 with the test identification parade in which PW1 identified the appellant-U will not ipso jure prove fatal to the case of the prosecution, although the investigating agency could and indeed ought to have B associated the said witness also with the test identification parade especially when the witness had not claimed familiarity with the appellant-U before the incident. Even so, its omission to do so does not affect the credibility of the identification of the said appellant by c PW16 in the Court. That is because the manner in which the incident has taken place and the opportunity which PW16 had, to see and observe the actions of appellant U were sufficient for the witness to identify him in the Court. This opportunity was more than a fleeting glimpse of the assailants. Appellant-U was seen by the witness pillion riding the motorcycle, coming in close proximity to his motorcycle, shooting the deceased from close range, stopping at some distance and coming back to the motorcycle where the deceased and the witness had fallen, abusing and threatening the witness and asking him to run away from the spot. All this was sufficient to create an impression that would remain imprinted in the memory of anyone who would go through such a traumatic experience. It is not a case where a chance and uneventful glance at another motorcyclist may pass without leaving any impression about the individual concerned. It is a case where the nightmare of the occurrence would stay in the memory of and indeed haunt the person who has undergone through the experience for a long long time. Absence of a test identification parade and the failure of the Investigating Officer to associate th~ witness with the same does not, therefore, make any material difference in the instant case. [Para 40] [353-D-H; 354-A-C] F E G H Ma/khansingh and Ors. v. State of MP. (2003) 5 SCC SHEO SHANKAR SINGH v. STATE OF JHARKHAND 325 I , & ANR.