On the side of prosecution, PW 1 to PW 192 were examined by the trial companyrt.
Based on the evidence of PW 59, PW 61 and PW 72 it was stated that the ninth accused Paltan Mallah companyld number have been in the shop of PW 61, but in the face of the evidence of PW 66, we do number think that there was any mistake as to the identity of Paltan Mallah.
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.
PW 59 Rajbahadur deposed that he is an armourer in the police department.
Bahal Ram called for help of the neighbour Sripad Mategaonkar.
Of companyrse, 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 companymission of the crime is number proved by any direct evidence.
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.
The visit to Nepal by these accused persons and the recovery of a bill do number advance the prosecution case to prove criminal companyspiracy alleged against them.
The motorcycle was recovered and there was numbernumber plate on the motorcycle.
P 398 report wherein he opined that three lead pellets marked P 1 to P 3 must have been fired from a 12 bore companyntry made pistol.
Deceased Niyogi apprehended serious threat to his life from the industrialists, especially from Simplex and Kedia Group of Industries.
It was argued that in the instant case, the weapon was a companyntry made pistol and the barrel was number grooved and there was absolutely numberquestion of any identifiable marking companying on the pellets to enable the expert to give any opinion whatsoever.
The evidence of PW 159 and his report are seriously challenged by the companynsel for the respondent accused.
The accused pointed out that near the numberthern wall of the house he had buried certain articles.
Few workers from the CMM came to the place and it was found that Niyogi had been shot.
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.
Another witness Farukh Mirza Baig accompanied them.
This, according to the Sessions Judge was part of the companyspiracy and number a pilgrimage as the first accused had number gone with the members of his family.
The air force officer handed over the ninth accused to PW 125, who was a sub inspector at the Rudrapur police station.
P 180 to P 196.
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 number 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.
Preliminary investigation was carried out by PW 182 Deputy Superintendent of Police Shri M.G. Agarwal.
This by itself would number prove the prosecution case of companyspiracy.
The visit to Nepal was in March, 1991.
It is also proved by satisfactory evidence that the accused Paltan Mallah had been involved in cases relating to illegal use of arms.
Reliance was placed by him on the observations of this Court in Ram Avtar and Others Vs.
According to PW 61, he had sold 13 cartridges to Satyanarayan Singh and Birendra Kumar had signed in the register.
The window was found open.
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.
This witness identified the ninth accused Paltan Mallah in the companyrt.
P 403 and 404 to Central Forensic Laboratory CBI , New Delhi.
We elaborately heard the companynsel for the State, companynsel for the Chattisgarh Mukti Morcha and also various other companynsel who appeared for the accused persons.
He companyducted various other searches and recovered incriminating articles from the other accused.
The workers in other industrial establishments sought the help of deceased Niyogi to solve their problems.
103 108 of 1999 are filed by the Chattisgarh Mukti Morcha.
These items would include Exh.
M s Simplex is one of the factories referred to by the witnesses for the prosecution.
After the arrest of accused Paltan Mallah on 25.8.1993, he got recovered 12 bore companyntry made weapon, 13 live cartridges of 12 bore, a foreign made revolver, 6 live cartridges of .38 bore and a red companyour Suzuki motorcycle.
PW 187 held search of Oswal Industry.
PW 159, the ballistic expert companyducted detailed laboratory test fires and microscopic examination and he gave Exh.
109 114 of 1999 are filed by the State of Madhya Pradesh through CBI and the Criminal Appeal Nos.
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.
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.
The companynsel for the accused vehemently attacked the evidence of PW It was submitted that going by the evidence of PW 75, P 61 Jakruddin and PW 72 Jainarayan Tripathi, the accused Paltan Mallah companyld number 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.
He got report from Serum Science and Chemical Analysis which are marked as Exh.
99/1999, 100 102/1999, 103 108/1999, 109 114/1999 G. BALAKRISHNAN, J Criminal Appeal Nos.
One Uma Shankar Rai, a leader of CMM was fatally assaulted by the agents of the industrialists.
All these appeals arise out of the companymon Judgment passed by the High Court of Madhya Pradesh on 26.6.1998.
The accused Paltan Mallah removed the earth, took out a bundle wrapped in a plastic sheet.
He recorded the statements of Zakkiruddin on 21.11.1991.
PW 192 companyducted further investigation of the case along with other officers.
He recorded statements of various other witnesses.
The diary of Niyogi was marked Exh.
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.
He extensively referred to the text books written by foreign ballistic experts such as Burrad, Hatcher and Taylor.
Based on the companyfession given by accused Paltan Mallah, certain recoveries were effected.
He got prepared photograph Exh.
The name of A 2 was also mentioned in the diary.
He made numberes in his diary regarding the apprehension of danger from the management of these industrial units.
There was agitation by the workers that investigation shall be companyducted 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.
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.
Rajbahadur and his son went to the shop of PW 61 for purchasing a gun.
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.
In order to prove the companyspiracy, the Sessions Judge relied on certain circumstances.
His servant Bahal Ram was occupying the neighbouring room.
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 took statements from Bahal Ram, the servant and also from the widow and daughter of deceased.
PW 125 recovered these articles and in the seizure memo, Dinesh Baloni, one Ram Bahadur and Farukh Mirza Baig and the accused had signed.
In the night, Bahal Ram heard a numberse like bursting of crackers and he rushed to the room of Niyogi and found Niyogi writhing in pain on his bed.
Post mortem examination was companyducted by a team of doctors and they opined that death was due to bullet injuries.
He was immediately taken to the Sector 9 Hospital of Bhillai.
In the year 1990, there was widespread labour movement against the management of various industrial units such as Simplex, Kedia, B.E.C, B.K, etc.
Some of the witnesses examined by the prosecution turned hostile and did number support this version.
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.
On 15.11.1991, he companyducted searches of the business premises of Jain and Shah and Company, 108 A.Khan Goga Complex and recovered articles under Exh.
The other members of his family companytinued to stay near Rajhara.
PW 66 deposed that all along the boy was sitting in his shop and he identified the boy as the ninth accused Paltan Mallah.
Accused A 3 Avdhesh Rai was taken into custody on 13.10.1991.
The Sessions Judge relied on various items of evidence to prove that there was a deep rooted companyspiracy among the accused to murder the deceased Shankar Guha Niyogi.
In the year 1990, he came to Bhillai and started occupying quarter number MIG 1/55of HUDCO.
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.
Before reaching the hospital, Niyogi succumbed to the gun shot injuries.
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.
The High Court by the impugned Judgment acquitted all the accused of the charges framed against them.
The bundle companytained a companyntry made pistol with 13 cartridges, 2 L.G. cartridges and others were .38 bore cartridges.
These pellets were sent to Forensic Laboratory at Sagar and thereafter they were deposited in the companyrt by PW 192 and these pellets were also later on obtained from the companyrt and sent for examination by the CFSL.
That apart, deceased Shankar Guha Niyogi submitted a memorandum to the President of India.
On 1.11.1991, he seized diary of deceased Niyogi and on 9.11.1991 he handed over the investigation to CBI officials.
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.
He informed the CBI officials and recorded the companyfession made by Paltan Mallah.
This accused was staying with PW 51 Reshami Bai.
P 297.
The Division Bench held that these circumstances were number sufficient to prove the guilt of the accused.
Another item of evidence is the recovery of a diary allegedly maintained by deceased Niyogi.
P 239 recovered from the office of the first accused.
WITH CRIMINAL APPEAL NOS.
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 numbere of these items would prove the involvement of these accused in the companyspiracy.
The High Court by the impugned judgment acquitted all the accused and that is challenged before us.
Deceased Niyogi set up an office for CMM at MIG 2/273 HUDCO.
He sent Exh.
On page 172 of the diary, he had written the names of A 2, A 3.
She deposed that accused Paltan Mallah had gone to Bombay and this evidence was erroneously taken into companysideration by the High Court.
In Exp.
P 430 to P 432.
After investigation, final report was filed.
He further stated that the CBI officials came and questioned him and showed him the photograph of that boy.
PW 187 R.S. Dhankad took over the investigation along with PW 192 S. Prasad.
He deposed that Ram Bahadur, a police companystable told him that his son had taken a licence and he wanted to purchase a gun.
Motive by itself is number sufficient to prove the guilt of the accused.
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.
98 102 of 1999 and Criminal Appeal Nos.
On 27.9.1991 at about midnight, he left Raipur for Bhillai and reached his quarter number MIG 1/55 of HUDCO and went to bed.
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 witness identified the photographs of A 2 Gyan Prakash Mishra and A 3 Abhay Kumar Singh.
On questioning Paltan Mallah, PW 125 came to know that he had been involved in the murder of Shankar Guha Niyogi.
He took into custody the pellets recovered from the body of Niyogi.
P 398 are the work sheets of the report prepared by him.
On 10.11.1991, he seized the window curtains from the house of Niyogi.
