Holding

The High Court's acquittal of Paltan Mallah was erroneous; the prosecution evidence, including the ballistic report and corroborative extra‑judicial confessions, proved his guilt beyond reasonable doubt, and his death sentence was commuted to life imprisonment.

Summary

The State of Madhya Pradesh, represented by the CBI, appealed against the High Court's acquittal of nine accused, including Paltan Mallah, for the murder of trade‑union leader Shankar Guha Niyogi. The trial court had convicted them under Section 302 read with Section 120B IPC based on circumstantial evidence, but the High Court set aside those convictions. The Supreme Court examined whether the High Court erred in rejecting the ballistic expert's report linking a recovered country‑made pistol to the murder, the admissibility of extra‑judicial confessions of co‑accused, and the relevance of evidence obtained through alleged illegal searches. It held that the evidence against Mallah was overwhelming and that the High Court’s acquittal was perverse. Consequently, Mallah's death sentence was commuted to life imprisonment, while the acquittals of the other accused were upheld.

Issues considered

The propriety of the High Court's acquittal of the accused on the basis of the evidence on record
The admissibility and evidentiary value of extra‑judicial confessions of co‑accused under Section 30 of the Evidence Act
The reliability and admissibility of ballistic expert testimony linking the recovered pistol to the murder
The effect of alleged illegal search and seizure on the admissibility of the seized weapons and related evidence
Whether the death sentence imposed on Paltan Mallah should be reduced to life imprisonment due to the lapse of time

Legislation cited

Arms Acts. 25(1)(A), s. 27, s. 34
Code of Criminal Procedure, 1973s. 103, s. 165
Indian Evidence Act, 1872s. 30, s. 32
Indian Penal Code, 1860s. 120B, s. 302

Subjects

murderconspiracyextra‑judicial confessionballistic evidenceillegal search and seizuredeath sentence commutationappeal against acquittalcircumstantial evidence

Judgment

A STATE OF M.P. THROUGH C.B.I. ETC.
v.
PALTAN MALLAH AND ORS. ETC.

JANUARY 20, 2005

B [K.G. BALAKRISHNAN AND DR. AR. LAKSHMANAN, JJ.]

Constitution of India, 1950-Article 136-Appeal against acquittal by -i
High Court-Interference with-On facts, prosecution case that conspiracy ...
among accused to murder deceased-Conviction of accused under section
c 302 read with 120B on basis ofcircumstantial evidence by trial court-Acquittal
by High Court-Correctness of-Held : High Court has given cogent and
satisfying reasons for the acquittal of the accused-Hence, interference with
such finding not called/or since Supreme Court would be slow in interfering
with the findings of High Court, unless there is perverse appreciation of
D evidence resulting in miscarriage ofjustice-Penal Code, 1860-Sections 302
and 120B-Evidence Act, 1872.

Penal Code, 1860-Sections 302 and 120B-Evidence Act, 1872- ,.
Sections 3 and 27-Prosecution case that conspiracy among accused to murder
deceased-Conviction of one accused under section 302 read with section
E 120B and also section 302 and imposition of death sentence by trial court-
Acquittal by High Court-Correctness of-Held : There is overwhelming
evidence to prove his complicity in crime-Recovery of weapon usedfor causing
,.
death of the deceased, evidence of ballistic expert, his two extra-judicial
confession, his presence at the place of incident during the relevant period
and also his involvement in several criminal cases and offences relating to
F
fire-arms proves the case against him beyond reasonable doubt-Hence,
conviction under section 302 justified, however due to long lapse of time
sentenced reduced to life imprisonment.
..
According to the prosecution, there was wide spread labour
G movement by an organisation against the management of various
industrial units. Management of various industrial units opposed the
labour movement. N - leader of the organisation apprehended serious
threats to his life from the industrialists. He made entries in his diary and
recorded statement in the cassette with regard to apprehension of danger
and also submitted memorandum to the President of India. He also
H 710
STATE OF M.P. v.PALTAN MALLAH 711
1 expressed the same to secretary general of PUCL and reporter of India A
Today. Thereafter, at midnight, he was shot in his quarter. He succumbed
to his injuries on the way to the hospital. Investigations were carried out.
Post mortem examination was conducted and it was opined that death was
due to bullet injuries. Statement of the witnesses were recorded. Diary of
N was seized and several articles were recovered. Accused persons were B
arrested. Ninth accused made extra judicial confession wherein he named
A t, A 2, A 5 and A 6. At the iastance of ninth accused 12 bore country
made weapon, 13 live cartridges of 12 bore, a foreign made revolver, 6
live cartridges of .38 bore and motor cycle were recovered and were sent
for forensic analysis. Pellets recovered from the body of N were also sent.
Ballistic expert conducted the examination and submitted th.e report. Also C
other incriminating articles were recovered from other accused. Trial
Court examined prosecution witnesses. Sessions Judge on basis of the
circumstantial evidence acquitted A6, A7 and A-8 however, convicted At,
A2, A3, A4, AS and A9 for offence under section 302 read with Section
1208 IPC. A9 was also convicted under Section 302 IPC and sentenced to
capital punishment and others were sentenced to life imprisonment. High D
Court acquitted all the accused. Hence the present appeals.

Disposing of the appeals, the Court

HELD : l. In appeal against acquittal, this Court would be slow in
interfering with the findings of High Court, unless there is perverse E
appreciation of the evidence which resulted in serious miscarriage of
justice and if 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 High Court had chosen one view which
is just and reasonable, then also this Court would be reluctant to interfere F
with the judgment of the High Court. In the instant case, High Court has
.... given cogent and satisfying reasons for the acquittal of the accused A-1
to A-8. There is no reason to interfere w.ith such a finding.
[718-E-G; 722-E)

2.1. In order to prove the conspiracy among the accused to murder G
the deceased N, Sessions Judge relied on various items of evidence. 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 N was spearheading many of these agitations and also
that A-1, A-4, A-5 and A-7, owners of certain industries had a strong H
y

712 SUPREME COURT REPORTS [2005) 1 S.C.R.

A motive to do away with deceased N. This by itself would not prove the
prosecution case of conspiracy. 1718-H; 719-AI

2.2. 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. The entries in the diary
B and the representation N 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
C of the accused persons in the diary and in the cassette, that by itself may
not be of any assistance to the prosecution case as the entries in the diary
and cassette do not refer to any event which ultimately was the cause of
his death. (719-H; 720-B-D]

2.3. Some of the old bills issued in the year 1991, which were
recovered from the residence of A-1 issued by a provision store in Nepal
D showing entries with regard to foreign made fire arms and their price do
not prove the prosecution case that some of the accused persons had visited
Nepal to procure some illegal weapons to carry out the common object of
the conspiracy. No bills proving purchase of foreign-made weapons were
recovered from any of these accused persons. [720-F-H]
E 2.4. The various recoveries affected by the investigating agency, does
not prove the involvement of these accused in the conspiracy. The slip
recovered from the office of the first accused in which the registration
number of the car being used by deceased N and also the registration
number of a jeep registered in the name of the organisation would show
F that the accused were watching the movements of deceased N cannot be
given importance. Furthermore, the recovery of 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 by the investigating officer,
even if the letter is found to be true, would only show that there was some
money transaction between the second accused and the sixth accused and
G 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. It is also alleged that the letter was
found in torn pieces and was recovered on 15.12.1991 by the investigating
officer when a search was conducted in the office of the first accused.
H [721-B-C, D, F, EJ
STATE OF M.P. v.PALTAN MALLAH 713
2.5. The prosecution relied on the arrangement of granting the A
contract for a cycle stand in the cinema theatre in the name of A-3 and
the income from the cycle stand was deposited in the Syndicate Bank in
the account of the second accused made at the instance of A-8. The person
who deposed the same does not know anything about the nature of this
transaction and there is no other evidence, oral or documentary, to show B
that the contract of the cycle stand has got anything to do with the murder
of the deceased N. 1721-G-H; 722-AI

2.6. 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 C
had absconded from the place, it could not be said to be a factor to prove
their guilt. [722-B-C]

2.7. Ninth accused made confession to PW-105 that A-1, A-5 and A-
6 had given him money and he murdered N for the sake of money. Under
section 30 of the Evidence Act, the extra judicial confession made by a D
co-accused could be admitted in evidence only as a corroborative piece of
evidence. The evidence adduced by the prosecution can only throw some
; serious suspicion against these accused, which cannot be used as a
substitute for evidence. In the absence of any substantive evidence against
these accused persons, the extra-judicial confession allegedly made by the E
ninth accused loses its significance and there cannot be any conviction
based on such extra-judicial confession. 1722-D-E)

3.1. High Court brushed aside the prosecution evidence against ninth
accused and acquitted him on fanciful reasons. There is overwhelming
evidence to prove his complicity in the crime and that none else caused F
the death of N. Though there is no direct and convincing evidence against
). other accused, the case against him is proved beyond reasonable doubt.
Therefore, acquittal of the respondent-accused is set aside and he is
convicted for the offence punishable under Section 302 IPC. Since there
is long lapse of time imposition of death sentence by the Sessions Court is G
not justified and is reduced to life imprisonment. 1731-A, B, C, D-E)

3.2. In a murder that took place during night, there would not be
any direct evidence to prove the fact that the accused was there during
the relevant period, but various circumstances would show that the ninth
accused was there during 1991. There is also prosecution evidence to the H
714 SUPREME COURT REPORTS [2005) I S.C.R.

A effect that the accused had got accessibility to the weapons and that he
was doing various jobs. Photographer who took the photograph of the
ninth accused in the year 1991 identified him. High Court erroneously took
into consideration the deposition of the wife of ninth accused that the
accused had gone to place B during the relevant period. In the face of the
B evidence of PW-66, who is running an arms shop to the effect that ninth
accused along with other person came to his shop to purchase gun and
cartridges, there was no mistake as to the identity of ninth accused and it
is clear that the accused was at the place of incident during the relevant
period. [723-D-E; 731-B; 723-C, E; 724-C-E)

c and happened
3.3. Ninth accused had been involved in a series of criminal cases
to be in custody for the same period. Sub-jailer at the jail
deposed that the ninth accused was lodged as an under-trial prisoner at
the jail from 1995 to 1998. Second and third accused were also lodged as
an under-trial prisoner for the same period. [722-H; 723-A, B]

D 3.4. It is also established that accused is involved in other offences
relating to fire-arms. In 1993 ninth accused was arrested by an air force
officer for illegal possession of certain fire arms and was handed over to
the sub-inspector who recorded the confession made by ninth accused that
he had been involved in the murder of N and had concealed the weapon.
Based on the disclosure statement, sub-inspector along with PW-104 left
E for village N and recovered a country-made pistol with 13 cartridges 2 L
G cartridges and .38 bore cartridges from the house of ninth accused and
a motorcycle without number plate hidden by the accused, from the house
of PW-1 OS. The recover of the country-made pistol at his instance, is
proved to have been used for causing the death of N. Also it cannot be
F said that the evidence was obtained under illegal search on account of
minor violation. [731-C; 724-E-H; 725-A-B; 731-A; 725-H)

Mohmed lnayatullah v. State of Mahrashtra, [1976) 1 SCC 828 and
Pohalya Matya Va/vi v. State of Maharashtra, [1980) 1 SCC 530,
distinguished.
G
Radha Krishan v. State of U.P., AIR (1963) SC 822; Pooran Mal v.
Director of Inspection, (1974) 1 SCC 354 and Dr. Pratap Singh v. Director
of Enforcement, [1985) 3 SCC 72, referred to.

Kuruma v. The Queen, (1955) A.C. 197, referred to.
H
STATE OF M.P. v.PALTAN MALLAR 715
3.5. The evidence of the ballistic expert that he conducted detailed A
laboratory test-fires and microscope examination and opined that three
pellets extricated from the body of the deceased must have been fired from
the country made pistol recovered at the instance of accused on basis of
the identifiable marks of barrel, fully supports the prosecution case. There
was no necessity to produce the micro photographs when the expert has B
given convincing reason to support his opinion. (729-E-F; 730-E]

Ram Avtar and Ors. v. Ram Dhani and Ors., (1997] 2 SCC 263 and
).
Ramanathan v. State of Tamil Nadu, (1978] 3 SCC 86, referred to.
\
3.6. Two extra-judicial confessions made to PW-105, who is related
to him and from whose premises motor cycle was recovered and PW-124, c
who is a headmaster of a school had no axe to grind against the accused,
also support the prosecution case fully. (728-A; 729-A]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 98
of 1999.
D
From the Judgment and Order dated 26.6.98 of the Madhya Pradesh
High Court in Crl.R. No. 5197 with Crl. A. No. 1371 of 1997.
-1
WITH

Crl. A. Nos. 99,100-102,103-108,109-114 of 1999. E

Amrendra Sharan, Additional Solicitor General, Sushi! Kumar, A.D.N.
Rao, A. Mariarputham, T.A. Khan, P. Parmeswaran, S. Muralidhar, Ms. Sudha
Bhardwaj, Somiran Sharma and Amit Sharma for the Appellants.

Rajendra Singh, Surendra Singh, S.C. Dutta, K. Radhakrishnan, U.U. F
)
;._ Lalit, Karan Singh, Ashok Yadav, Narendra Kumar, B.L. Jain, Lalit Singh
Chauhan, P.H. Parekh, Prashant Kumar, Rohan Thawani, Prasanjit Keswani,
Nitin Sangra, Joseph Pookkett, Rana S. Biswas, M.P. Singh Chauhan, Shyam
Dewani, Sanjay Sen, Anis Ahmed Khan, Ms. Kamakshi, S. Mehlwal,
Ms.Vasudha Sharma, Ms. Sarla Chandra, Prakash Srivastava, Ms. Anu Mohla G
and Pranab Kumar Mullick for the Respondents.

Ms. Supama Srivastava and Rajesh Srivastava for State of Chhattisgarh.

The Judgment of the Court was delivered by
H
716 SUPREME COURT REPORTS [2005] I S.C.R.

A K.G. BALAKRISHNAN, J. Criminal Appeal Nos. 98-102 of 1999
and Criminal Appeal Nos. 109-114of1999 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.
B Nine accused persons were tried by the Second Addi. Sessions Judge, Durg,
M.P. Accused nos. I to 8 were charged for the offence under Section 302
read with Section 1208 JPC. The 9th accused was charged under Section 302
read with Section 1208, and in the alternative, Section 302 read with Section
34 JPC 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
C Singh Sandhu. A-I 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 1208. 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
D 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
E 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
"CHA TTISGARH MUKTI MORCHA" (hereinafter being referred to as
"CMM") and deceased N iyogi became a leader of this organisation. He was
F leading the labourers working at Rajaram Mines area which was a main
source ofraw 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
G sought the help of deceased Niyogi to solve their problems. Jn the year 1990,
he came to Bhillai and started occupying quarter no. MIG 1/55 of 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 the management of various industrial units such as Simplex,
H Kedia, B.E.C, B.K, etc. According to the prosecution, the management of
STATEOFM.P. v.PALTANMALLAH (BALAKRISHNAN ,J.] 717
these industrial units started opposing the labour movement and there was A
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 B
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 c
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 D
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
E
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 F
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- I80 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.
G
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 H
718 SUPREME COURT REPORTS [2005] 1 S.C.R.
~
A 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.
B
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 {

c 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 I to PW-192 were examined by the
trial court.

The High Court by the impugned judgment acquitted all the accused
D
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 accused persons. The accused A-1, A-2, A-3, A-4, A-5 and A-9 were
E 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
F 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 A.
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
G 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 T.
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,
H A-4, A-5 and A-7 had a strong motive to do away with deceased Shankar
ST ATE OF M.P. v.PALTAN MALLAH [BALAKRISHNAN, l.] 719

Guha Niyogi. Motive by itself is not sufficient to prove the guilt of the A
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 N iyogi created a lot of problems in running
their business and caused loss to these industries. Mis Simplex is one of the
factories referred to by the witnesses for the prosecution. Several witnesses B
were examined to prove that Simplex and Kedia Distilleries were actin5
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 C
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 D
by deceased Niyogi. The diary ofNiyogi was marked Exh. P-93. In the diary,
Niyogi had written that industrialists like Simplex/Kedia along with higher
officials of Durg district had fonned 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 E
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 F
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 G
industrialists.

The entries in the diary and certain statements of the deceased recorded
on a micro cassette were sought to be made admissible as eviden~e 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 w~o is dead, H
720 SUPREME COURT REPORTS [2005) l S.C.R.

A are themselves relevant facts, but this statement should have been made as to t
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
B circumstance which led to his death.

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

c 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.
D
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
E programme of going to Nepal in a tempo truck and the first accused along J
with A-4 Abhay Kumar Singh and A-3 Avdhesh Rai went to Nepal via
Banaras. On the way, ~hey 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 '
F 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
-
'll
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
G accused Gyan Prakash Misra. The price of the weapons also is mentioned. I"
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
H
STATE OF M.P. v.PALTAN MALLAH [BALAKRISHNAN, J.] 721
t-
and not a pilgrimage as the first accused had not gone with the members of A
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, B
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. C
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 D
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 tom 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 E
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 p
it is proved that the amount of Rs. 20,000 alleged to have passed between the
parties was in consideration of the ilie gal act carried out at the instance of the
second accused. The High Court was justified in not relying on this document.

The prosecution relied on the arrangement of granting the contract for
a cycle stand in the cinema theatre, by name Maurya Talkies. PW-102 G
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 H
722 SUPREME COURT REPORTS (2005] I S.C.R.
....
I

A 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 Guba Niyogi.

The fact that some of these accused had absconded from ihe place of
B 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
c 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-
D 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
E 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
F 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
,J,..
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
G 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
Ni yogi. 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
H
STATE OF M.P. v.PALTAN MALLAH [BALAKRISHNAN, J.] 723
-t involved in a series of criminal cases and happened to be in custody for some A
period.

PW-63 who was the sub-jailor at Durg jail for the period 1988 to 1992
deposed that the ninth accused Pallan 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 B
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 !PC 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
!PC and Section 25 of the Arms Act and he was lodged as a prisoner from
1.3.1988 to 10.8.1988 in Durgjail. PW-121 is a photographer who deposed
c
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 Pallan Mallah.

The High Court in the impugned judgment stated that there is absolutely D
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
"JI
that the ninth accused was in Bhilai during 1991. This accused was staying
with PW-51 Reshami Bai. She deposed that accused Pallan Mallah had gone
to Bombay and this evidence was erroneously taken into consideration by the E
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
F
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 G
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
H
724 SUPREME COURT REPORTS (2005) I S.C.R.

A boy. This witness identified the ninth accused Paltan Mall: Ii in the court. i
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
B 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.
C 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-66, 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
D 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 lr
that the accused Paltan Mallah had been involved in cases relating to illegal
E 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.
F 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 Pa!tan 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-
G 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 ofNibahi. The accused pointed out that near the northern wall of the
house he had buried certain articles. The accused Paltan Mallah removed the
H earth, took out a bundle wrapped in a plastic sheet. The bundle contained a
STATE OF M.P.·v.PALTAN MALLAH [BALAKRISHNAN, J.] 725
-~
country-made pistol with 13 cartridges, 2 L.G. cartridges and others were .38 A
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.
B

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
c
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 sta\ement
marked Exh. P-285 would only show that the accused had the knowledge of D
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) I SCC 828 Mohmed Jnayatullah v. State of
Maharashtra and [1980) I SCC 530 Pohalya Motya Va/vi v. State of
Maharashtra. The above two decisions are not relevant in this case as in the
E
Exp. P-285 the accused specifically says that he concealed the weapon himself.
As the alleged confession clearly states that the accused himself has conr.ealed
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 F
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 cast:s, 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 piace G
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 respondent cannot be
accepted. H
726 SUPREME COURT REPORTS (2005) 1 S.C.R.

A In India, the evidence obtained under illegal search ;c_ 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 v. State of UP., AIR (1963) SC 822,
speaking for a three Judge Bench, Justice Mudholkar held :

B "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
c 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 v. Director of
D Inspection, [I 974] I sec 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
E seizure. It would thus be seen that in India, as 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."

F This decision was later followed in Dr. Pratap Singh v. 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
G 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
H to prevent default in compliance with the provisions of the Code, the courts
STATEOFM.P. v.PALTAN MALLAH [BALAKRISHNAN ,J.] 727
t should take strict view of the matter and reject the evidence adduced on the A
basis 9f 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) AC. 197, Lord Goddard, CJ was of the
firm view that in a criminal case the Judge always has a discretion to disallow B
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
I committed by the investigating authority is of serious nature and causes
serious prejudice to the accused, such evidence may be excluded. c
It may also be noticed that the Law Commission of India in the 94th
Report suggested the incorporation of a provision in Chapter I 0 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 D
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
E
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 F
) provisions. For example, if certain specific enactments are made and the
..4. 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. G

(-.....,.. 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.
H
728 SUPREME COURT REPORTS (2005] I S.C.R.

A 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-I 05 Satyaprakash Nishad is related to Pallan Mallah. He deposed
B that in 1991 Pallan Mallah came to Chainpur village which is about 35-40
kms. away from his village at Nibahi. PW- I 05 deposed that Paltan Mallah
told him that he is involved in the murder of a leader and the CBI was in
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
C 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 Pallan 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 Pallan Mallah left his motorcycle at his
residence and he later came to know that in August, 1993 Paltan Mallah was
D 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
E 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 Pallan
Mallah came to his house along with Keshnath, the brother-in-law of PW-
F 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
G 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
H of this witness was discarded. The extra-judicial confession made by the
STATE OF M.P. v.PALTAN MALLAH [BALAKRISHNAN, J.] 729
t accused Paltan Mallah to PW-124 is unimpeachable. PW-124 is a headmaster A
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 co-.ld !:le used only as a B
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
c
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 D
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
E
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 F
and Exh. P-398 are the work-sheets of the report prepared by him.
-4,
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
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 G
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 Ors. v. Ram Dhani and Ors, (1997] 2 SCC 263,
wherein this Court relied on the opinion of J.S. Hatcher in his text book of
H
730 SUPREME COURT REPORTS [2005] 1 S.C.R.

A 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
B 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
C 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
D 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
E produce the micro photographs when the expert has given convincing reasons
to support his opinion. This Court in Ramanathan v. 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
F 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
G the markings under the comparison microscope simply for the reason
that he has not thought it necessary to take the photographs. I! 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."
H
-+
STATE OF M.P. v.PALTAN MALLAH [BALAKRISHNAN, J.) 731
In the case of the respondent-accused Paltan Mallah, there is A
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 B
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 Pallan 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. C
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 respondent-accused Pallan Mallah.

In the result, we reverse the acquittal of the respondent-accused Paltail D
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 !PC and sentence him to E
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.
F
N.J. Appeals dismissed.