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PETITIONER:

STATE OF U.P.

Vs.

RESPONDENT:

DAN SINGH AND ORS.

DATE OF JUDGMENT: 03/02/1997

BENCH:

M.K. MUKHERJEE, B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

KIRPAL, J.

This is an appeal by special leave against the judgment

of the Allahabad High Court which had upheld the acquittal

of all the accused respondents of charges under Sections

147, 302/149, 436/149, 307/149 of the Indian Penal Code (for

short the `IPC') and under Section 4 (iv), (x) and Section

5.7 of the Protection of Civil Rights Act 1955. The

aforesaid charges were framed pursuant to an occurrence

which had taken place in village Kafalta Malla in district

Bilaspur in the State of U.P. wherein 14 persons were killed

and 7 injured. All the 32 accused-respondents were acquitted

by the Sessions Judge and, in appeal, the acquittal of all

of them was upheld except that accused Kishan Singh,

respondent no.20, and Jeet Singh respondent no.14, who were

convicted by the High Court under Section 325/34 IPC and

sentenced to five years rigorous imprisonment.

The occurrence in question took place on 9th May, 1980.

The complainant's side is Dom by caste. It was not disputed

during the arguments that Dom is a scheduled caste. The

prosecution case is that a marriage party from the

complainant's village Birlagaon Talla was going to village

Pinna. It had to pass through village Kafalta Malla. The

marriage party, consisting of about 40 persons, reached the

village kafalta Malla at 5p.m. There 4 women accused nos. 29

to 32 met the marriage party near the house of accused

no.13, Lachman Singh Bangari, i.e., in the beginning of the

village. These women stopped the doli of the bridegroom and

asserted that these Doms could not take their bridegroom on

a doli in front of the house of Thakurs and Brahmins. The

complainant's side replied that when Brahmins and Thakurs

could do it, the Doms had also right to do it. Then these

women shouted for their men folk of the village and all the

male accused, along with others, came at the spot. in all

there were 70 to 80 persons, and they were armed with

lathis, dandas, stones. When the marriage party reached near

the house of one Nari Ram, PW-8, a resident of this village

one Khima Nand Fauji attacked Diwani Ram, of the marriage

party, with a knife. Diwani Ram received injuries. Khima

Nand Fauji wanted to attack again. Then the bridegroom's

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father Mohan Ram tried to snatch the knife from Khima Nand.

In this scuffle the knife struck Khima Nand. (This Khima

Nand died after a few days). When the knife struck Khima

Nand and he got injured, the members of the marriage party

started running helter skelter. Some of them entered into

the house of Nari Ram as this Nari Ram was of their own

caste. In order to save themselves these persons bolted the

door of Nari Ram's house from inside. The accused assailants

bolted it from outside and after making a hole in the roof,

they put in dried grass, sprinkled keresone oil and put it

on fire. Some members of the marriage party ran else where

to save themselves but they were attacked with lathis and

stones etc. resulting in death of several persons.

Complainant Narendra Prasad (PW 1) was also in the marriage

party. He was injured. Some how he was able to escape and

reached his house after it being dark. Then he went to

Patwari's office which is at a distance of two or three

kilometers from his house and six kilometers from the place

of occurrence and lodged a written report (Ex. Ka.3) at 10

p.m. the same night.

Before the report was lodged by the complainant the

accused no.2 Inder Singh also lodged a report in the same

Patwari's office at 9.30 p.m. The version given in this

report was that the marriage party reached the village at 5

p.m. In the village there is a temple of Badri Nath where

bridegroom of every caste has to get down from doli. Then

the marriage party was asked that they should also take the

bridegroom on foot in front of them temple: but the members

of the marriage party did not agree and started quarrel.

They attacked Ram Singh accused no.10. As alarm was raised

in the village, the villagers assembled. The members of the

marriage party did not yield to persuasion. They took out

knife and were bent upon assaulting, and they started it.

They attacked Khima Nand with knife. Khima Nand received

serious injuries and became unconscious. In this scuffle the

marriage party, which consisted of fifty persons, dispersed

while the accused No.2 Inder Singh and No.20 Kishan Singh

had come to lodge the report on being asked by the

villagers. According to the accused, there were 50 to 60

persons in the marriage party.

The accused pleaded not guilty. The four women accused

merely said that they did not know anything about the

occurrence.

The accused Kunwar Singh son of Hayat Singh, Harish

Chandra, Trilok Singh son of Hayat Singh, Khushal Singh,

Bishan Datt, Madhava Nand, Bachey Singh, Deo Singh Jasod

Singh, Gosain Singh and Nardeo pleaded that they were not at

the spot.

Accused Hari Datt, Jai Singh alias Jasod Singh, Ram

Singh son of Daulat Singh, Trilok Singh son of Udai Singh,

Kunwar Singh son of Param Singh and Aan Singh did not raise

any particular defence.

Accused Dan Singh, Indra Singh, Chandra Mani, Khiali

Ram, Jagdish Chandra, Lachhman Singh Bangari, Jeet Singh and

Nardeo raised the defence that on the date of occurrence,

thee was a feast in the village at the house of Khiali Ram

accused. His brother' marriage party had returned on the

same day. There were quite a Number of invites in the feast

and Khima Nand deceased was sent to bring pan and cigarettes

for the invitees. They had stated that in the village there

is a temple of Badri Nath and the custom is that every

person gets down from his vehicle of carrier and walks on

foot in the village boundary.

Accused Kishan Singh and Ram Singh son of Parbat Singh

Pleaded that the marriage party was passing through the

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passage and the bridegroom was on doli. The marriage party

had crackers and guns with which they fired. Ram Singh, who

returned from the feast of Khiali Ram, requested the members

of the marriage party to take down the bridegroom from the

doli, because of the custom that the people go on foot in

the village boundary, there being the temple of Badri Nath.

The members of the marriage party did not agree and

proceeded ahead. Diwani Ram from the marriage party showed a

knife and Kishan Ram threatened with a lathi. Khima Nand

also asked the members of the marriage party to take down

their bridegroom from the doli and go on foot in view of the

village custom; but the members of the marriage party

quarrelled. Two of them, Mohan Ram and Kishan Ram caught

hold of Khima Nand's hands and Diwani Ram inflicted knife

injuries to Khima Nand due to which Khima Nand died and the

marriage party dispersed. In cross-examination it was

suggested that the house of Nari Ram caught fire due to

crackers of the marriage party and the other invitees who

had come to Khiali Ram's house might have indulged in this

episode.

The post mortem report on the dead bodies showed that

six persons had died of burns or suffocation. One of them

also had head injury. Eight other persons had lacerated

wounds, contusion and abrasion and they had died on account

of shock and haemorrhage due to brain injury. In addition to

the aforesaid 14 persons there were 7 other injured persons

on the side of the complainant, all of whom are eye-

witnesses it he case. Narendra Prasad, PW-1, had six

injuries which were lacerated wounds and abrasions.

Pitambar, PW-2, had lacerated wounds and some abrasions.

Ganga Ram, PW-3, had 11 injuries consisting of lacerated

wounds, contusion and abrasion. Bhawani Ram, PW-4, had 5

injuries which were abrasions and infected wounds. Diwani

Ram, PW-7, who had the first scuffle with Khima Nand (the

deceased on the side of the accused) had three injuries

consisting of two lacerated wounds and one contusion. Nari

Ram, PW-8, had two lacerated wounds, two contusions and

three abrasions. There were lacerated wounds and contusions

on the hand and shoulder and Bali Ram. PW-9, had 12

injuries, one of them was a contusion, one was abrasion and

the rest were lacerated wounds. Of these injuries one had

caused the fracture of mandible.

The matter was reported by Narendra Prasad, PW-1, to

Patwari Narain Singh Khetri because under Section 2 of The

Tehri-Garhwal Revenue Officials (Special Powers) Act, 1956

the Patwari had been invested with powers of an officer in

charge of a police station. This report was lodged the same

night at 10 p.m. whereupon the Patwari recorded the

statements of Narendra Prasad, PW-1, and Pitamber, PW-2, at

his office. The Patwari then sought help of one Devi Dutt

Satti (PW-13) who was the Patwari of another circle. Both of

these Patwaries then reached the place of incidence at 1.30

a.m. in the night and found Nari Ram. PW-8's, house burning

and also saw some dead bodies. Thereafter report was made by

Narain Singh to the higher officers while Devi Dutt Satti

examined PW-3, Ganga Ram and PW-8, Nari Ram amongst others

and also prepared the site plan. Inside the house of Nari

Ram five burnt bodies were found. In the courtyard of the

house one half burnt body of Kishan Ram was found. Other

bodies were found in the near-by fields.

After the initial investigation was made by the local

Patwaries, the investigation was trnsferred to the regular

police and then to the C.I.D. Some of the accused were

arrested by the police while others were arrested by the

C.I.D. On 26th May, 1980 C.I.D. Inspector Ram Charan Singh,

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PW-18, submitted the chargesheet whereupon the respondents

were put up for trial.

The prosecution examined eight eye witnesses, out of

who except for Amba Prasad, PW-5, all had been injured at

the time of the incident. Three doctors who had conducted

post mortem examination of the dead bodies, and had examined

the injuries of the injured witnesses, were also examined.

In addition thereto evidence of two Patwaries as well as the

investigation officers of the police and the C.I.D. was also

recorded.

The accused examined six witnesses in their defence in

support of the plea of alibi raised by Hayat Singh,

respondent no.5 and Harish Chandra, respondent no.6.

The Session Judge, Almora, vide his judgment dated 15th

April, 1981 acquitted all the accused of the above mentioned

charges framed against them. He came to the conclusion that

the prosecution had failed to establish the guilt of the

accused persons beyond a reasonable doubt.

Aggrieved by the aforesaid judgment the State filed a

Criminal Appeal No.1573 of 1981 before the High Court of

Allahabad. The said appeal came up for hearing before the

Division Bench of B.N. Katju and Rajeshwar Singh, JJ. By his

opinion dated 15th April, 1987 B.N. Katju, J. came to the

conclusion that except for respondents Jeet Singh a Kishan

Singh, the acquittal of all other respondents should be

upheld. While accepting that the incident had taken place in

the said village of kafalta Malla, the learned judge

expressed doubt whether the FIR had been lodged the same

night at 10 p.m.. The learned judge did not accept the

contention that the accused persons were members of the

unlawful assembly or that any unlawful assembly had come

into existence which had a common object of killing the

deceased. Only the evidence of Bali Ram, PW-9, was partly

believed to the extent that it implicated Jeet Singh and

Kishan Singh for assaulting him and causing injuries with

lathis and stones and in respect whereof the learned judge

held that these two assailants be sentenced to five years

rigorous imprisonment under Section 325/34 IPC.

By a separate opinion Rajeshwar Singh, J. observed that

the appeal should be partly allowed. He came to the

conclusion that the prosecution evidence clearly showed that

respondent no.1, Dan Singh, respondent no.2, Indra Singh,

respondent no.10, Ram Sigh son a Parvat Singh, respondent

no.14, Jeet Singh, respondent no.19, Trilok sigh son of

Hayat Singh and respondent no.20, Kishan Singh were members

of a unlawful assembly the object of which was not to let

the bridegroom pass on doli and then to kill and burn the

Doms who did not heed the accused and one of whom had

injured Khima Nand. It was held that charges against them,

under Section 4 (iv) and (x) of the Protection of Civil

rights Act, 1955 as well as charges under Sections 147,

302/149, 436/149, 232/149 and 307/149 IPC, stood established

and the judge proposed to sentence them to imprisonment for

life. The acquittal of your lady accused, namely, respondent

no.29, Rajmati, respondent no.30, Jaintuli Devi, respondent

no.31, Jhapri Devi and respondent no.32, Mana Devi under

Section 4 (iv), (x) and 7 of the Protection of Civil Rights

Act. 1955 was proposed to be set aside and they were to be

sentenced to undergo simple imprisonment for one month each

and to pay a fine of Rs.100/- each.

Thus while both the learned judges agreed on the

acquittal of 22 of the accused there was a difference of

opinion with regard to 6 other accused and the four ladies

who were charged with different offences. On 15the April,

1987 two orders were passed by the Division Bench. the first

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order regarding acquittal of 22 accused was as follows:

"Government appeal no.1573 of 1981

filed against the acquittal of Hari

Datt alias Hari Datt, Jai Singh

alias Jasod Singh, Hayat Singh son

of Dewan Singh, Harish Chandra,

Chandramani, Kunwar Singh son of

Hayat Singh, Khayali Ram, Ram Singh

son of Daulat Singh, Jagdish

Chandra, Bishan Datt, Lachham Singh

Bangari, Trilok singh son of Udai

Singh Madhavanand, Khushal Singh,

Bache Singh, Dev Singh, Jasod Singh

son of Jathal Singh, Gusain Singh,

Kunwal Singh son of Param Singh.

Mus Dev, Nar Dev and An Singh

respondent under Section 302/149,

307/149, 436/149, 323/149 and 147

I.P.C. and sub-sections (iv) and

(x) of Section 4 and Section 7 of

the Portection of Civil Rights Act,

1955 is dismissed."

By the second order the papers were directed to be

placed before the Chief Justice for the appeal to be placed

before another judge under Section 392 of the Code of

Criminal Procedure. This order was in the following terms:

"As there is a difference of

opinion between us regarding

Government appeal no.1573 of 1981

filed against the acquittal of Dan

Singh, Inder Singh, Ram Singh son

of Parvat Singh, Trilok Singh son

of Hayat Singh, Jeet Singh, Kishan

Singh, Smt. Rajmati, Smt. Jaintuli

Devi, Smt. Jhapri Devi and Smt.

Mane Devi respondents, we direct

that the appeal filed against them

along with our opinion shall be

placed before Hon'ble the Chief

Justice for being laid before

another Hon'ble Judge under Section

392 Cr.P.C."

The appeal was then heard by V.P. Mathur, J. who agreed

with the opinion of Katju, J. As a result thereof final

order was passed on 19th May, 1988 which is as follows;

" In view of the opinion of the

third Judge under Section 392

Cr.P.C. the Government Appeal

against the acquittal of Dan Singh,

Inder Singh, Ram Singh son of

Parvat Singh, Trilok Singh son of

Hayat Singh, Smt. Rajmati, Smt.

Jaintuli Devi, Smt. Jhapari Devi

and Smt. Mana Devi is dismissed.

The Government Appeal against the

acquittal of Jeet Singh and Kishan

Singh accused is allowed in part.

They are convicted under Section

325/34 I.P.C. and sentenced to five

years rigorious imprisonment.

Dan Singh, Inder Singh, Ram

singh son of Parvat Singh, Trilok

singh son of Hayat Singh, Smt.

Rajmati, Smt. Jaintuli Devi, Smt.

Jhapari Devi and Smt. Mana Devi

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respondents are on bail. They need

not surrender. Their bail bonds are

discharged.

Jeet Singh and Kishan Singh

respondents are also on bail. They

shall be taken into custody

forthwith to serve out the sentence

awarded to them."

Special leave petition was filed by the State against

all the 32 accused. Vide order dated 21st July, 1989, leave

was not granted in the case of the four ladies, namely,

respondent nos.29 to 32 and their acquittal has become

final. Leave was granted qua the other 28 accused.

Before dealing with the rival contentions of the

parties it will be appropriate to not that as per the record

of this Court, during the pendency of this appeal four of

the respondents, namely, Har Datt, respondent no.3, Trilok

Singh, respondent no.16, Madhavanand, respondent no.17 and

Nar Dev, respondent no.27, have expired. the appeal against

them, therefore, abates.

At the outset it was-sought to be contended on behalf

of the respondents that the appeal against the 22

respondents, qua whom the State's appeal was dismissed by

the Division Bench of B.N. Katju and Rajeshwar Singh, JJ.

vide order dated 15the April, 1987, had become final and no

appeal has been filed against the said decision. The appeal

had only been filed against the final order dated 19th May,

1988, pursuant to the opinion of the third judge. This order

only pertains to the four ladies and six other respondents.

Special leave not having been granted against the acquittal

of the four ladies, this appeal, it was submitted, should be

confined only to the case relating to the six accused in

respect of whom there was a difference of opinion which was

referred to the third judge.

In our opinion there is no merit in the aforesaid

contention. As is evident from the bare perusal of Section

392 of the code of Criminal Procedure, 1973, which is as

follows:

" Procedure where Judges of

Court of Appeal are equally divided

- When an appeal under this Chapter

is heard by a High court before a

Bench of Judges and they are

divided in opinion, the appeal with

their opinions, shall be laid

before another Judge of that Court,

and that Judge, after such hearing

s he thinks fit, shall deliver his

opinion and the judgment or order

shall follow that opinion;

Provided that if one of the

Judges constituting the Bench, or,

where the appeal is laid before

another Judge under this section,

that Judge, so requires, the appeal

shall be re-heard and decided by a

larger Bench of Judges."

According to this section if there is a difference of

opinion amongst the judges of the Bench, then their opinions

are laid before another judge. It is only after the third

judge gives his opinion that the judgment or order follows.

it is clear from this that a judgment or order which can be

appealed against, under Article 136 of the constitution, is

only that which follows after the opinion of the third judge

has been delivered. What B.N. Katju and Rajeshwar Singh, JJ.

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wrote was not their judgments but they were their opinions.

Due to disagreement amongst them, Section 392 of the Code of

Criminal Procedure required the appeal as a whole was then

required to be laid before the third judge (V.P. Mathur, J.

in this case) whose opinion was to prevail. the first order

of 15th April, 1987 was clearly not contemplated by Section

392 of the Code of Criminal Procedure and is, therefore,

honest.

When the appeal as a whole is heard by the third judge,

he not only has an option of delivering his opinion but,

under the proviso to Section 392 of the Code of Criminal

Procedure he may require the appeal to be re-heard and

decided by a larger bench of judges. This was an option

which, under the proviso, was also open for any one of the

two judges, namely, B.N. Katju and Rajeshwar Singh, JJ. to

exercise, but hey choose not to do so. What is clearly

evident is that the appeal is finally disposed of by the

judgment and order which follows the opinion of the third

judge. This being so special leave petition could only have

been filed after the appeal was disposed of by the High

Court vide its final order dated 19th May, 1988. Even though

the said order purports to relate only to ten out of thirty

two accused the said order has to be read along with the

earlier order of 15th April, 1987 and, in law, the effect

would be that the order dated 19th May, 1988 will be

regarded as the final order whereby the appeal of the State

was partly allowed, with only two of the thirty two accused

being convicted under Section 325 read with Section 34 IPC,

while all the other accused were acquitted.

Coming to the merits of the case the appellant has

contended that all the 28 respondents, in respect of whom

the special leave has been granted, should have been

convicted of the charges framed against them. It was

submitted by learned counsel that there was no valid reason

not to accept the testimony of the eight eye witnesses,

seven of whom were injured. It was contended that the

evidence on record clearly showed that there existed an

unlawful assembly the common object of which was to attack

and kill the members of the marriage party who were

scheduled castes. It is pursuant to this common object that

the members of the unlawful assembly attacked the members of

the marriage party which led to death of fourteen and

injuries to seven. It was submitted that the said decision

is contrary to the well established principles of law and no

court could have, on the basis of the evidence on record,

acquitted all the respondents of the charges framed against

them.

Mr. U.R. Lalit, learned senior counsel, appearing for

the respondents, on the other hand, submitted that while

there can be no doubt that the marriage party was attacked

by the villagers the Court cannot come to the conclusion

that there was any unlawful assembly which had a common

object of killing the members of the marriage party. He

further submitted that even if it be assumed that an

unlawful assembly was formed the prosecution had failed to

prove, beyond reasonable doubt, that the respondent were

members of that unlawful assembly or that they shared the

same common object. It was also vehemently contended that

the respondents having been acquitted, both by the trial

court and the High court, this court should accept the

concurrent findings of fact arrived at and it ought not to

come to a different conclusion.

We are conscious of the fact that in dealing with an

appeal where both the courts below have acquitted the

respondents of the serious charges levelled against them,

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there should be very strong reasons to set-aside the verdict

of acquittal and to convict the respondents. There have,

therefore, to be compelling reasons for us to come to the

conclusion that the decisions of the courts below are

clearly unsustainable both in fact an din law. If two views

are possible then this Court would not, readily or

ordinarily, reverse the concurrent findings of acquittal

arrived at by the trial court and the High Court. On the

other hand,if the only conclusion, which could be arrived at

on the basis of the evidence on record, shows that there has

been a serious mis-carriage of justice, than,

notwithstanding the concurrent findings of fact arrived at

by the courts below, this Court would not hesitate in coming

to a different conclusion. It is for this reason that the

evidence of witnesses and the other materials on record have

to be carefully considered and examined before this Court

can come to the conclusion that the prosecution was able to

prove its case against all or some of the accused.

What has to be considered in this case is whether there

was any unlawful assembly at the place of occurrence and,

secondly what was the common object of the said assembly

and, particularly, who were the members of the said unlawful

assembly. it is only after the court comes to the conclusion

that the respondents or any of them, was member of such

unlawful assembly who shared the common object of killing

the Doms can they be convicted even if no overt act can be

assigned to any one of them.

Before examining the evidence of the eye-witnesses we

may note the undisputed facts. On 9th May, 1980 an

occurrence took place in the village of Kafalta Malla. Most

of the residents of the said village were Thakurs of

Brahmins. The only house of a scheduled caste in that

village was that of Nari Ram, PW-8. The occurrence took

place when the complainant's party reached the said village

taking a doli in which the bridegroom was sitting. Even if

the story with regard to the four ladies stopping the doli

is not accepted as correct, it is not in dispute that near

the house of Nari Ram, to which the doli had proceeded, some

words were exchanged between Khima Nand (deceased) and

Divani Ram, PW-7. A large number of villagers had collected

there. According to the complainant, Khima Nand took out a

knife and there was a scuffle between him and diwani Ram and

during this scuffle the father of the bridegroom, namely,

Mohan Ram tried to snatch the knife. Dewani Ram was injured

and Khima Nand was also injured, but he succumbed to those

injuries after a few days. The defence version, believed by

the High Court, was that Khimanand was attacked by Diwani

Ram. The manner as to now injuries were caused to Khimanand

is not very material but what is relevant is that after the

injuries were sustained by Khima Nand the riot started.

According to PW 1 to PW 5, PW 7 and PW 9 some of the

villagers shouted that they should kill and burn the Doms

and it was thereafter that the marriage party was attacked.

Some of the members of the marriage party took shelter in

the house of Nari Ram, but that house was set on fire which

resulted in the death of five of them inside the house,

while the body of another person was found in the courtyard

of Nari Ram's house which was half burnt. Apart from these

six deceased, eight other persons were killed and their

bodies were found laying in the adjoining fields of the

village. the nature of the injuries on the deceased and the

assailants, except for the injury on Khima Nand (deceased)

and, Possibly Diwani Ram, were all caused by blunt

instruments or stones. Except for Khimanand, no other

villager was injured. On the other hand, except for those

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members of the marriage party who ran away from the scene of

occurrence, when the riot started, none were spared. It is

accepted by the High Court that death of fourteen persons

and injuries to seven others was caused by the villagers who

were present there.

From the aforesaid facts, as found by the High court,

let us examine whether there existed any unlawful assembly

and what was its common object. It is possible that there

was no unlawful assembly in existence at the time when the

`doli' was stopped. Nevertheless as per the evidence of all

the eye witnesses, a large number of villagers had gathered

there and they had with them lathis and sticks. According to

the explanation to Section 141 I.P.C. and assembly which is

not unlawful when it assembles may subsequently become an

unlawful assembly. As observed by this Court in Lalji & Ors.

Vs. State of U.P., 1989(1) SCC 437 "that common object of

the unlawful assembly can be gathered form the nature of the

assembly, arms used by them and the behaviour of the

assembly at or before the scene of occurrence. It is an

inference to be deduced from the facts and circumstances of

each case". What has happenned in the present case is

precisely what has envisaged in the explanation to Section

141 I.P.C. With Khima Nand being injured, all hell broke

loose. A cry was raised that the doms should be burnt and

killed, and this is precisely what happened. the marriage

party was assaulted by the villagers. Six of the members of

the marriage party were burnt, five of them having been

locked inside the house of the only Dom resident of the

village whose house was also burnt. Eight others were

pursued and then mercilessly beaten and were killed

elsewhere in the village. We fail to appreciate how anyone,

under the circumstances, can possibly come to the conclusion

that an unlawful assembly having the common object of

killing the Doms did not exist when fourteen people have

been killed without the use of any weapon more lethal than a

stick or stone. Considering the number of injuries on the

persons who had died, it is evident that a large number of

persons must have taken part in the assualt. Even if the

assembly of villagers was initially lawful, the same,

undoubtedly, became unlawful when the riot started after

Khima Nand was injured. All the eye witnesses have said that

fifty or more villagers had taken part in the attack. Who

were members of the assembly will be considered later but

what is relevant to note is that a large number of villagers

were present, duly armed with lathis and sticks, when the

occurrence started and except six people who were burnt,

eight others were beaten to death by blows from lathis,

sticks an stones. It is difficult to appreciate the

conclusion of the High Court that, under the circumstances,

the attackers probably had a similar object but not a common

object.

It was sought to be contended that there is nothing to

show that the unlawful assembly continued to exist during

the course of the entire incident. it is not possible to

accept this considering that when all that remained in the

village, of the marriage party, were fourteen corpses. it is

only those members of the marriage party who had ran away

were able to save their lives. The only conclusion which we

can arrive at, in the instant case, is that there was an

unlawful assembly which attacked the marriage party and

which had the common object of killing them, and they

succeeded in their endeavour to a large extent.

This brings us to the next question as to who were the

persons who were members of this unlawful assembly. it is no

doubt true that some of the villagers may have been present

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at the time of the occurrence who were mere spectators and

could not be regarded as being members of the unlawful

assembly. It also happens, when people are killed during a

riot, there may be a possibility of the incident being

exaggerated or some innocent persons being named as being

part of the assailants party. This may happen wittingly or

unwittingly. But just because there may be some

inconsequential contradictions or exaggeration in the

testimony of the eye witnesses that should not be a ground

to reject their evidence in its entirety. In the cases of

rioting, where there are a large number of assailants and a

number of witnesses, it is but natural that the testimony of

the witnesses may not be identical. What has to be seen is

whether the basic features of the occurrences have been

similarly viewed and/or described by the witnesses in a

manner which tallies with the outcome of the riot, viz., the

injuries sustained by the victims and the number of people

who are attacked and killed.

Before we deal with the testimony of these witnesses,

it will be important to bear in mind that in the present

case the conviction is being sought under Section 302 I.P.C.

with the aid of Section 149 I.P.C.. The two essential

ingredients of this Section are that there must be a

commission of an offence by any member of unlawful assembly

and that such offence must be committed in prosecution of

common object of that assembly or must be such as the

members of that assembly knew to be likely to be committed.

It is also a well-settled law (see Masalti Vs. State of

Uttar Pradesh, AIR 1965 SC 202) that it is not necessary for

the prosecution to prove which of the members of the

unlawful assembly did which or what act. In fact as observed

in Lalji's case (supra) "while overt act and active

participation may indicate common intention of the person

perpetrating the crime, the mere presence in the unlawful

assembly may fasten vicariously criminal liability under

Section 149".

Mr. Lalit is right in submitting that the witnesses

would be revengeful as a large scale violence had taken

place where the party, to which the eye witnesses belonged,

had suffered and it is, therefore, necessary to fix the

identity and participation of each accused with reasonable

certainty. Dealing with a similar case of riot where a large

number of assailants who were members of an unlawful

assembly committed an offence of murder in pursuance of a

common object, the manner in which the evidence should be

appreciated was adverted upon by this court in Masalti's

case (supra) at page 210 as follows:

"Then it is urged that the evidence

given by the witnesses conforms to

the same uniform pattern and since

no specific part is assigned to all

the assailants, that evidence

should not have been accepted. This

criticism again is not well

founded. where a crowd of

assailants who are members of an

unlawful assembly proceeds to

commit an offence of murder in

pursuance of the common object of

the unlawful assembly, it is often

not possible for witnesses to

describe accurately the part played

by each one of the assailants.

Besides, if a large crowd of

persons armed with weapons assaults

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the intended victims, it may not be

necessary that all of them have to

take part in the actual assault. In

the present case, for instance,

several weapons were carried by

different members of the unlawful

assembly, but it appears that the

guns were used and that was enough

to kill 5 persons. In such a case,

it would be unreasonable to contend

that because the other weapons

carried by the members of the

unlawful assembly were not used,

the story in regard to the said

weapons itself should be rejected.

Appreciation of evidence in such a

complex case is not doubt a

difficult task; but criminal courts

have to do their best in dealing

with such cases and it is their

duty to sift the evidence carefully

and decide which part of it is true

and which is not."

One more principle which was laid down in Masalti's

case (supra), and which would be applicable here, is that

where a "court has to deal with the evidence pertaining to

the commission of an offence involving a large number of

offenders and a large number of victims, it is usual to

adopt the test that the conviction could be sustained only

if it is supported by 2/3 or more witnesses who give a

consistent account of the incident. In a sense the test may

be described as mechanical; but it cannot be treated as

irrational or unreasonable".

It is in the background of the aforesaid principles

that we now proceed to examine the testimony of the eye

witnesses, in order to determine as to which of the

respondents could be stated to have been a part of the

unlawful assembly whose common object was to kill the

members of the marriage party.

Out of the fourteen people who had been killed, six of

them were burnt. This incident took place when PW 8 Nari

Ram's house was burnt in which five of the victims had been

locked in. It will be appropriate, therefore, to determine,

if possible, as to which of the respondents were responsible

for this act. Out of the seven eye witnesses PW 1 Narendra

Parsad and PW 7 Diwani Ram named all the 28 respondents,

other than four ladies, as being the assailants who were

part of the unlawful assembly. PW3 Ganga Ram identified,

apart from the four ladies, 26 of the respondents as having

attacked the marriage party. The presence of these three

witnesses at the place of occurrence has been accepted by

the High Court. What, in our opinion, is the most important

evidence with regard to the burning of the Nari Ram's house

is the testimony of Nari Ram PW8 himself. He has deposed

that his was the only scheduled caste Family in the village

and he has stated, in no uncertain terms, that he witnessed

the act of the burning of his house. He stated that he was

coming back from his field at about 6 P.M. when he heard the

noise in his court-yard. He saw Dan Singh respondent No. 1 &

Ram Singh respondent No. 10 who were spraying kerosene oil

on his house. According to him respondent No. 23 Jasod Singh

and respondent No. 24 Gusain Singh were putting the house on

fire from below by putting the light. He found his wife and

children standing outside in the court-yard and they were

crying. Some of the processionists, who were members of the

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marriage party were inside the house and they had been

locked from outside. The house, as well as his belonging

inside, were burning and at that time "swarnas injured me

also". He stated that he was injured as a result of the

lathis blows and stones being thrown on him.

Nari Ram's evidence has bee rejected by the High Court

for two reasons. Firstly, it has been observed that before

the Investigating Officer, he had stated that he came to his

house after it had been set on fire and he did not know who

had lit the fire and who killed the members of the marriage

party. The second reason for not accepting his testimony is

that he did not name who were the assailants who injured

him. In our opinion, these are not good enough reasons for

not accepting the evidence of PW8 Nari Ram. The High Court

failed to appreciate that in his evidence Nari Ram has

stated that when his house had been set on fire he and his

family members hid themselves in the adjoining house of

Keshi Ram. They stayed in that house the whole night and he

further deposed that because of fear he did not come out of

keshi Ram's house even the next morning. In this state of

fear and dread in which Nari Ram was on the day following

the burning of his house if he did not mention to the

Investigating officer the names of those persons who had set

his house on fire, the same cannot be regarded as

surprising. As already noticed, Nari Ram's was the only

scheduled caste family in the village consisting of Thakurs

and Brahmins. These Thakurs and Brahmins had attacked the

marriage party of the Doms and had killed fourteen of them.

If, due to fear, no assailants or attacker was named by Nari

Ram to the investigation Officer on the following day, the

same is not unexpected. We see no reason to dis-believe his

evidence. The persons identified by him in his evidence as

being responsible for setting the house on fire have also

been named by the other witnesses. Apart from PW 1 and PW 7

who had named all the respondents as being the assailants,

respondents Dan Singh, Ram Singh, Jasod Singh and gusain

Singh had been identified by PW 8 and other eye witnesses

also as being part of the unlawful assembly. Other eye

witnesses who had identified these four persons, as being

part of the unlawful assembly, though they have not been

specifically named as being the persons who set Nari Ram's

house on fire, are PW 2, PW 3, PW 5 and PW 9 who had

identified Dan Singh and Ram Singh and PW 3 who had

identified Jasod Singh and Gusain Singh. it is true that

Nari Ram has not named the persons who attacked him with

sticks and stones but the very fact that he was attacked and

he suffered injuries shows that at the time of the

occurrence he was present at his house and, therefore, he

must have seen the assailants specifically named by him, We

have read his evidence with care and we see no reason as to

why he would wrongly name only four persons out of a mob of

more than sixty, as being responsible for burning his house

with the five Doms and all of his belongs being inside.

There is no justifiable reason for not accepting his

evidence as being worthy of acceptance.

We, therefore, come to the conclusion that these four

persons namely Dan Singh, Ram Singh, Jasod Singh and Gusain

Singh were present who set the house of Nari Ram on fire and

were responsible for the killing of six of the deceased who

had died at this place due to burns.

Eight other person were killed by the members of the

unlawful assembly at different places in the adjoining

fields. it is obvious that there must have been a fairly

large number of assailants who could have chased and then

beaten eight different people to death at different place.

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Till the entire incident came to an end with the killing of

these fourteen persons, the unlawful assembly which came

into existence immediately on the injury of Khima Nand

continued. The members thereof would be liable for the

killing of these persons, even if it is not possible to

ascribe the overt acts of each of the assailants.

In order to determine who were other members of the

unlawful assembly in which eight other persons were killed,

it will be necessary to see the evidence of the witnesses

other than Nari Ram. The main case of the prosecution rested

on the evidence of PW1 Narendra prasad who lodged the First

Information Report with the patwari on the night of the

incident itself. PW 1 Narendra Parsad stated that he was the

teacher in this village Kafalta Malla from 1965 to 1969. He,

as well as all other eye witnesses have deposed that the

"doli" was sought to be stopped firstly by the four ladies

and, thereafter by Khima Nand deceased. At that time when an

altercation took place between Khima Nand deceased and

Dewani Ram, there were about fifty to sixty villagers

including some residents of near by villages who had

assembled there. Though these fifty to sixty people are

alleged to have taken part in the attack on the marriage

party, Narendra Parsad named only the respondents as being

part of the said assembly of fifty to sixty people who had

taken part in the riot which had ensued after Khima Nand had

been injured PW 1 Narendra Parsad further deposed that after

Khima Nand was injured, all the accused present in the court

came and said "do not leave them alive. Kill them" and these

people attacked on the processionists with lathis, knives,

sticks and stones. PW1 further stated that some of the

processionists, in order to save their lives, entered into

the house of PW8 Nari Ram and some other processionists ran

to the fields. He also deposed to the burning of the house

of Nari Ram by the accused persons as a result of which five

processionists were burnt to death inside the house and one

died in the court-yard with half of his body having been

burnt. PW1 further stated that the respondents chased those

processionists who had ran away towards the fields and beat

them with lathis, sticks and stones. As a result of this,

some of the processionists died and other were seriously

injured. At the time of this occurrence, PW1 Narendra Parsad

was himself injured and, according to him, the whole

occurrence took place within a period of 1 to 1 1/2 hours.

He also mentioned in his evidence that he met Nari Ram his

house when it was burning and that Nari Ram PW8 had told him

about the injuries sustained by him only on the next day

i.e. 10th may, 1980.

The High Court did not accept the evidence of PW1

Narendra Parsad as it came to the conclusion that when the

marriage party was attacked, PW1 Narendra Parsad had

concealed himself behind banana plants which were five to

six feet high and he was there till it became dark. Katju,

J. further observed that PW1 Narendra parsad had mentioned

the names of five respondents as having broken the roof of

Nari Ram and setting it on fire but their names had not been

mentioned in the First Information Report lodged by him. it

also dis-believed his statement that he had met Nari Ram PW

8 because according to the High Court Nari Ram was not there

when his house was set on fire. Nari Ram's evidence in court

was rejected by the High Court because in his statement

under Section 161 I.P.C. Nari Ram had stated that he had

come to his house after it had been set on fire.

We have gone through the evidence of PW1 Narendra

Parsad very carefully and we find that there is a ring of

truth in the same. Having worked as a teacher in the school,

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one can safely presume that he would be in a position to

identify at-least some of the villagers who were assembled

there. Further more, he himself had suffered a number of

injuries and it is difficult to accept that in an incident

where fourteen people were killed and seven injured,

including PW 1 himself, he would not have seen anyone taking

part in the attack. Merely because he had not mentioned in

the First Information Report the names of the persons who

had set on fire the house of Nari Ram, can be no ground for

rejecting his testimony. This was not a serious omission in

the context of this case. Further more even though PW1

Narendra Parsad had sought shelter behind the banana plants,

he has said in his statement that he remained hidden for

about an hour. The incident had occurred, according to the

prosecution, between 5 P.M. & 6.30 P.M. PW 1 Narendra

Parshad, after going back to his villager, wrote out the

First Information Report in which the entire incident which

had occurred was mentioned in which all the respondents were

implicated. This report was given to the patwari at 10 P.M.

on the night of the incident. the mentioning of the names of

all the respondents in this report soon after such a serious

incident had occurred, does clearly indicate that PW1

Narendra Parsad must have been able to identify at-least

some if not all the person named therein.

The evidence of these two witnesses, i.e., PW 1

Narendra Parsad and PW 8 Nari Ram is fully corroborated by

the evidence of the other eye witnesses. In the evidence of

Bali Ram PW 9 which corrborates the testimony of PW 1, he

has named Jeet Singh respondent No. 14 and Kishan Singh

respondent No. 20 as being the persons who assaulted him. To

this extent the High Court has accepted his evidence and

that is why these two respondents have been convicted and

sentenced under Section 325/34 IPC. We, however, see no

reason as to why testimony of Bali ram as a whole should not

have been accepted. The incident, according to him, had

occurred in the manner stated by the other eye witnesses and

PW 1 in particular. That his evidence does not suffer from

any exaggeration is evident from the fact that he identified

only ten of the respondents from amongst the members of the

unlawful assembly, apart from the four ladies identified by

him.

We, however, find that Katju J. and Mathur, J. have not

specifically dealt with the evidence of PW 2, PW3, PW 4, PW

5 and PW 7, No reason has thus been given for not believing

their testimony. All of these witnesses have given a

consistent version of the manner in which the occurrence

started. They have given the names of the assailants who had

identified by them. the assailants identified by them, other

then the identification of the ladies, are sixteen by PW 2,

twenty six by PW 3, nine by PW and eight by PW 5, PW 2's

evidence is important for another reason because he had

accompanied PW1 Narendra Prasad when Narendra Prasad had

gone to the `patwari' for lodging of the First Information

report the same night. He and the other three witnesses no

doubt ran away to save themselves, once the riots started,

but at the time when the riot commenced they were present

there and they were able to identify the persons named by

them in their evidence who were the part of the riotous mob.

On behalf of the respondents, six defence witnesses

were examined. DW 1 to DW 3 have been examined in support of

the case of respondent No. 5 Hayat Singh that he was not

present at the place of incident. DW 1 Khima Nand is only a

clerk in the office of Deputy Inspector of Schools who

proved some documents. His evidence is not very material. DW

2 and DW 3 have deposed that Hayat Singh was not present at

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the place of incident. Inasmuch as only three eye witnesses

have identified respondent no.5 as being one of the

assailants, and in view of the fact that he has not been

identified by four of the eye witnesses he, is, therefore,

given the benefit of doubt and we do not propose to deal

with the evidence of these defence witnesses. DW 5 Hira

Singh Rawat is a clerk of a Court of Munsif Magistrate and

is of no relevance. DW6 Harak Singh has been produced to

support the case of the respondents that the marriage party

came to the village and passed in front of his shop at 6.30

or 7 P.M. and it was dark at that time. He was also produced

to support the case of the respondents that the house of

Nari Ram was burnt because of the crackers which were being

lit by the marriage party. The evidence of this witness is

not worthy of acceptance because we have already found as a

fact that the house of Nari Ram was set on fire by some of

the respondents. It is unbelievable even if the marriage

party had crackers with them, that the same could be the

cause of Nari Ram's house being put on fire and that also in

such a manner that five of the members of the marriage party

would continue to remain inside and not be able to escape

from the house. The fact that five members of the marriage

party were burnt inside the house clearly shows that the

door of the house was locked from outside preventing the

five persons, stranded inside, to come out. This by itself

clearly demonstrates the falsity of the testimony of DW 6

Harak Singh

Now remains the statement of DW 4 Chandan Singh Rawat.

This witness was Physical Training Teacher in the Government

Higher Secondary School in which the respondent No. 6 Harish

Chandra was a student of class IX. This witness stated that

on 9.5.1980 examination of physical training was going on.

On that day the Physical training test was held from 3 P.M.

to 6 P.M. and that the respondent Harish Chandra remained in

school up to 6 P.M. the distance of the school from the

house was stated to be 1 to 1 1/2 K.Ms.. He also produced

the list giving marks in he physical training test which

contained the name of Harish Chandra. This sheet also bears

the signatures of the Principal as well as the class

teacher. He has denied the suggestion that the accused

Harish Chandra might have gone out after the physical

training examination at 4 P.M. Four of the eye witnesses

namely PW 1 Narendra Prasad, PW 2 Pitamber. PW 3 Ganga Ram

and PW 7 Dewani Ram have identified Harish Chandra as being

one of the person who was present at the time of the

incident and took part in the attack. On the other hand, the

testimony of DW4 Chandan Singh Rawat, who was a teacher in

the school in which Harish Chandra was a student, is quite

impeachable. He has stated that on the day of the incident.

Harish Chandra was in the school till 6 P.M. and that he had

taken the physical training examination. In view of the

conflicting state of evidence as regards the presence of

Harish Chandra, it cannot be said with certainty that the

testimony of DW 4 Chandan Singh Rawat is false. While

hearing this appeal against acquittal, we are of the opinion

that benefit of doubt should be given to Harish Chandra and

the appeal against him is also liable to be dismissed.

If we accept the testimony of PW 1 and PW 7 in its

entirety then all the respondents must be regarded as being

members of the unlawful assembly and provisions of Section

149 IPC would be applicable to them. Even though we see no

reason to disregard their evidence, nevertheless, keeping in

mind the observations of this Court in Masalti's case

(supra), we feel that even though a very large number of

members of the unlawful assembly had taken part in the

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attack on the Doms, it would be safe it only those of the

respondents should be held to be the members of the unlawful

assembly who have been specifically identified by at-least

four eye witnesses. Applying this test, we find that apart

from respondent no.5 Hayat Singh, respondent No. 4 Jai

Singh, respondent No. 21 Bache Singh, respondent No. 22 Dev

Singh, respondent No. 26 Mus Dev and PW 28 An Singh have

been identified by less than four eye witnesses. This being

so, we give the benefit of doubt and their acquittal by the

High Court is upheld.

The acquittal of other respondents, namely, respondent

No. 1 Dan Singh, respondent No. 2 Inder Singh, respondent

No. 7 Chandramani, respondent No. 8 Kunwar Singh, respondent

No. 9 Khyali Ram, respondent No. 10 Ram Singh, respondent

No. 11 Jagdish Chandra, respondent No. 12 Bishan Dutt,

respondent No. 13 Lachhman Singh, respondent No. 14 Jeet

Singh, respondent No. 15 Ram Singh s/o Daulat Singh,

respondent No. 19 Trilok Singh, respondent No. 20 Kishan

Singh, respondent No. 23 Jasod Singh, respondent No. 24

Gusain Singh and respondent No. 25 Kunwar Singh under

Sections 147, 302/149, 436/149, 323/149 & 307/149 I.P.C. is

set-aside and all these accused are found guilty and

convicted under there aforesaid sections. They are sentenced

to undergo rigorous imprisonment for one year under section

147 I.P.C., imprisonment for life under Section 302/149

I.P.C., rigorous imprisonment for seven years under Section

436/149 I.P.C., rigorous imprisonment for nine months under

Section 323/149 I.P.C. and rigorous imprisonment for seven

years under Section 307/149 I.P.C.. All the sentences will

run concurrently. These accused persons, who are on bail,

shall be taken into custody to serve out the sentences. The

appeal in respect of other accused is dismissed and they are

discharged from the bail bonds, if any.