Patna High Court
Sunil Kumar @ Sunaina Sao @ Sunil vs The State Of Bihar on 24 April, 2026
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1098 of 2018
Arising Out of PS. Case No.-333 Year-1981 Thana- BIHAR District- Nalanda
======================================================
Ishwari Singh S/o Baldeo Singh, Resident of Mohalla- Alinagar, P.S.-
Biharsharif, District- Nalanda.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 979 of 2018
Arising Out of PS. Case No.-333 Year-1981 Thana- BIHAR District- Nalanda
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SUNIL KUMAR @ SUNAINA SAO @ SUNIL son of Late Ramu Sao,
resident of Village- Alinagar, P.S. Biharsharif, District Nalanda.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1030 of 2018
Arising Out of PS. Case No.-333 Year-1981 Thana- BIHAR District- Nalanda
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Nand Lal Yadav Son of Late Harangi Yadav, resident of Village/ Mohalla- Ali
Nagar, P.S. Bihar, District- Nalanda.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1063 of 2018
Arising Out of PS. Case No.-333 Year-1981 Thana- BIHAR District- Nalanda
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1. KISTO PATWA @ KISTU RAM and ANR S/o Late Mitar Patwa, R/o
Mohalla- Alinagar, P.S.- Bihar, District- Nalanda.
2. Ajay Singh S/o Late Hari Singh, R/o Mohalla- Alinagar, Ward No. 46, P.S.-
Bihar, District- Nalanda.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
2/142
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1067 of 2018
Arising Out of PS. Case No.-333 Year-1981 Thana- BIHAR District- Nalanda
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Laxman Ram S/o Late Chhedi Ram, R/o Mohalla- Alinagar, P.S.- Bihar,
District- Nalanda.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1124 of 2018
Arising Out of PS. Case No.-333 Year-1981 Thana- BIHAR District- Nalanda
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CHHOTEY KUMHAR @ CHOTE LAL PANDIT S/o Mahabir Kumhar, R/o
Vill./Mohalla- Ali Nagar, P.S.- Bihar Sharif, District- Nalanda.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1098 of 2018)
For the Appellant/s : Mr. Ravi Shankar Roy, Amicus Curiae
For the Respondent/s : Mr. Satya Narayan Prasad, Spl.PP
(In CRIMINAL APPEAL (DB) No. 979 of 2018)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Ritwaj Raman, Advocate
Mr. Nilesh Kumar
For the Respondent/s : Mr. Dilip Kumar Sinha, Spl.PP
(In CRIMINAL APPEAL (DB) No. 1030 of 2018)
For the Appellant/s : Mr. Rajendra Prasad, Sr. Advocate
Mr. Pramod Kumar, Advocate
Mr. Ritesh Kumar, Advocate
Mr. Dhirendra Kumar, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, Spl.PP
(In CRIMINAL APPEAL (DB) No. 1063 of 2018)
For the Appellant/s : Mr. Rajesh Kumar Singh, Sr. Advocate
Mr. Anil Kumar Singh, Advocate
Mr. Ashish Kumar, Advocate
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
3/142
Mr. Samir Kumar Bharti, Advocate
For the Respondent/s : Mr. Ashwani Kumar Sinha, Spl.PP
(In CRIMINAL APPEAL (DB) No. 1067 of 2018)
For the Appellant/s : Mr. Ravi Shankar Roy, Amicus Curiae
For the Respondent/s : Mr. Satya Narayan Prasad, Spl.PP
(In CRIMINAL APPEAL (DB) No. 1124 of 2018)
For the Appellant/s : Mr. Amit Narayan, Advocate
Mr. Aryan Kumar, Advocate
Mr. Praveen Kumar, Advocate
For the Respondent/s : Mr. Ajay Mishra, Spl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date: 24-04-2026
Prologue:
1. In the early summer of 1981, India stood at a
crossroads where hope and despair walked hand in hand. The
nation, still reeling from the political convulsions of the
Emergency and the short-lived Janata experiment, found itself
caught in the tightening grip of economic stagnation, spiraling
inflation, and deepening social fissures. Bihar, once the cradle
of ancient empires, had by then become a byword for chronic
backwardness, a land where grinding poverty and feudal land
relations cast long shadows over everyday life. In the villages
and mohallas of Nalanda and Bihar Sharif, ordinary citizens,
both Hindu and Muslim, eked out their existence through
small-scale trades like bidi-making, sharecropping, and petty
labour, their lives tethered to the uncertain rhythms of the
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
4/142
agrarian economy, barely keeping body and soul together.
2. Yet beneath this surface of shared hardship lay a
simmering cauldron of communal discord, turning the entire
region into a powder keg where even the smallest spark could
set the whole place ablaze, as the people were unwittingly
playing with fire. As the old proverb wisely warns, a single
spark is enough to turn the entire forest into ashes. Minor
disputes over a graveyard, a religious procession, or a local
leader's ambition could ignite into flames that consumed
entire neighbourhoods Politically, the decade had dawned with
the resurgence of identity-based mobilisations. The RSS and
its affiliates were steadily expanding their influence in Bihar's
towns, while sections of the Muslim community, feeling
increasingly marginalised, looked to external leadership for
protection and assertion. Economic competition in mixed
localities like Alinagar, where Hindus and Muslims had long
lived in uneasy proximity, sharing water sources, markets, and
even workplaces, only sharpened these fault lines. Peace was
not a natural state but a fragile truce perpetually balanced on a
razor's edge. In such an atmosphere, a single spark, a rumour,
a slight, or an unresolved local grievance, was often enough to
fan the embers of suspicion into a raging inferno.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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3. It was against this charged atmosphere backdrop
of poverty, political polarisation, and latent communal tension
that the tragic events of 1 May 1981 unfolded in Alinagar
Mohalla. What began as a Friday afternoon of routine prayer
and daily toil rapidly descended into one of the darkest
chapters of Bihar's communal history, a day when houses
were set ablaze, women and children were dragged into the
open, and lives were extinguished in a frenzy of collective
violence. At least eleven men, women and children were
brutally murdered by outrageous mob, houses were set ablaze,
household belongings were looted and even today many
people of a particular community remain untraceable. The
present appeal calls upon this Court to sift through the
evidence of that fateful day with the cold eye of justice,
unswayed by the passions of the past, yet mindful of the
human cost exacted when the fragile threads that bind a
diverse society are torn asunder.
Factual Matrix
4. These batch of criminal appeals have been
preferred under Section 374(2) of the Code of Criminal
Procedure against the common judgment of conviction, dated
21.07.2018and the order of sentence, dated 27.07.2018, Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 6/142 passed by the learned Presiding Officer, Fast Track Court-I, Nalanda at Bihar Sharif, in Sessions Trial No. 108 of 1983, arising out of Bihar P.S. Case No. 333 of 1981.
5. By the impugned judgment, the learned Trial Court has been pleased to convict the appellants along with several other accused persons for offences punishable under Sections 148, 302/149, 307/149, 392/149 of the Indian Penal Code and, in certain cases, also under Section 436 IPC and other allied provisions. Upon conviction, the appellants have been sentenced to undergo rigorous imprisonment for life for the offence under Section 302/149 IPC along with fine, and further sentenced under other provisions including Sections 307/149, 392/149 and 148 IPC, with a direction that all the sentences shall run concurrently.
6. The prosecution case arises out of Bihar P.S. Case No. 333 of 1981 registered on the basis of the fardbeyan of one Md. Hasim recorded on 01.05.1981 at Sadar Hospital, Bihar Sharif, alleging a large-scale incident of arson, assault and murder in Mohalla Alinagar under Bihar Sharif Police Station, District Nalanda.
7. The case involves allegations of formation of an unlawful assembly consisting of a large number of persons, Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 7/142 armed with deadly weapons, who allegedly committed offences including setting fire to residential houses, causing injuries to several persons and committing murder of multiple members of the informant's family and community.
8. After completion of investigation, charge-sheet was submitted against 63 accused persons. Upon cognizance and commitment, the case was tried as Sessions Trial No. 108 of 1983. The Trial Court framed charge against 61 accused persons. During trial, the prosecution examined 31 witnesses and proved several documentary exhibits including postmortem reports, injury reports, seizure lists, test identification parade chart, dying declaration and formal First Information Report.
9. Upon conclusion of trial, the learned Trial Court, by the impugned judgment and order, convicted the appellants and other accused persons as stated hereinabove, giving rise to the present batch of appeals.
10. Since all the appeals arise out of the same Sessions Trial, involve common evidence and relate to the same occurrence, they are being heard and disposed of together by this common judgment.
11. The prosecution case, as disclosed in the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 8/142 fardbeyan of Md. Hasim (P.W.14), recorded on 01.05.1981 at about 8:00 P.M. at Sadar Hospital, Bihar Sharif, is that on the same day at about 12:00 noon, the informant along with his younger brother Sahabuddin had gone to Bari Dargah for offering Namaz.
12. After the prayer in Dargah, when they were coming back, the informant came to learn that fire had been set in Mohalla Alinagar. Upon receiving such information, the informant along with others reached Dargah Police Chowki and thereafter, accompanied by police personnel, proceeded towards his house situated in Mohalla Alinagar.
13. On reaching there, it was found that the house of the informant had been set on fire and several members of his family had sustained injuries. Among the injured persons were Ishrat Begum, Md. Rizwan, Md. Alam, Nasima and Shamima Bano, who were brought to the police outpost and thereafter taken to Sadar Hospital for treatment. Other members of the family were also brought to the outpost in subsequent trips.
14. The informant came to learn from his family members that a large number of persons, numbering about fifty to sixty, including named accused persons, had formed an unlawful assembly and had attacked his house. It was alleged Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 9/142 that the said persons were variously armed with weapons such as bhala, knife, lathi and other sharp cutting weapons and had forcibly entered the house.
15. It was further alleged that the said accused persons not only set the house on fire but also assaulted the inmates indiscriminately, resulting in serious injuries to several persons and the death of multiple members of the informant's family, including women and a child. Some of the family members were stated to be missing. The dead bodies were subsequently brought to Sadar Hospital.
16. It was also stated that Ishrat Begum, who had sustained serious injuries, was lying unconscious at the time and that she would disclose the names of the accused persons upon regaining consciousness. The occurrence was stated to have taken place in the backdrop of communal tension between Hindu and Muslim communities.
17. On the basis of the aforesaid fardbeyan, Bihar P.S. Case No. 333 of 1981 was instituted under Sections 147, 148, 302, 307, 326, 324, 448, 436, 380 and 323 of the Indian Penal Code against certain named accused persons and several unknown persons.
18. During the course of investigation, the police Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 10/142 recorded statements of witnesses, prepared seizure lists, conducted inquest proceedings, obtained postmortem reports of the deceased persons and injury reports of the injured persons, and also conducted Test Identification Parade.
Proceeding in Trial Court
19. After completion of investigation, charge-sheet was submitted against 63 accused persons. The learned Chief Judicial Magistrate, Nalanda took cognizance of the offences and the case was committed to the Court of Sessions on 05.04.1983, where it was registered as Sessions Trial No. 108 of 1983.
20. Charges were framed against the accused persons under various provisions including Sections 153A, 364, 148, 201, 120B, 302/149, 307/149, 395/149, 295, 449 and 436/149 of the Indian Penal Code as well as under Section 3 of the Explosive Substances Act. The charges were read over and explained to the accused persons, who denied the same and claimed to be tried.
21. In order to prove its case, the prosecution examined 31 witnesses, including medical officers, eyewitnesses, formal witnesses and investigating officers. The prosecution also proved several documents including Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 11/142 postmortem reports of the deceased persons, injury reports of the injured persons, seizure lists, sketch map of the place of occurrence, test identification parade chart, dying declaration and formal First Information Report.
22. After closure of the prosecution evidence, the statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, wherein they denied the incriminating circumstances appearing against them and claimed false implication. No evidence was adduced on behalf of the defence.
Trial Court's Judgement - Salient Points
23. The learned Trial Court, upon consideration of the oral and documentary evidence adduced by the prosecution, first examined the nature of the occurrence and the medical evidence on record.
24. On the basis of the postmortem reports and the evidence of the medical witnesses, namely P.W.1 and P.W.2, the Trial Court recorded a categorical finding that the deaths of the deceased persons were homicidal in nature. It was observed that the injuries found on the bodies of the deceased were caused by sharp cutting weapons as well as hard and blunt substances and were sufficient in the ordinary course of Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 12/142 nature to cause death.
25. The Trial Court further considered the evidence relating to the injured witnesses and found that the injuries sustained by them were consistent with the prosecution case of assault by a mob armed with deadly weapons.
26. The learned Trial Court then proceeded to evaluate the ocular evidence of the prosecution witnesses. It relied upon the testimonies of several witnesses, including injured witnesses and other members of the informant's family, who supported the prosecution case regarding the occurrence of arson, assault and murder by a large group of persons. The court found that these witnesses had consistently stated about the unlawful assembly, the use of weapons and the acts of assault and burning of the house.
27. The Trial Court also took into account the Test Identification Parade conducted by the Magistrate (P.W.25) and held that the identification of certain accused persons by the witnesses in the said parade lent corroboration to the prosecution case.
28. Further, reliance was placed upon documentary evidence including the dying declaration of Ishrat Begum, seizure lists, sketch map and other exhibits to support the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 13/142 prosecution version.
29. Upon appreciation of the entire evidence, the Trial Court recorded a finding that the occurrence in question was the result of communal violence and that a large unlawful assembly had gathered with the common object of committing offences including arson, assault and murder.
30. The Trial Court held that the prosecution had succeeded in establishing the formation of an unlawful assembly and the participation of its members in the commission of offences. Accordingly, the provisions of Section 149 of the Indian Penal Code were held to be attracted.
31. The defence plea of false implication was rejected by the Trial Court. It was observed that the prosecution evidence was sufficient to establish the guilt of the accused persons beyond reasonable doubt.
32. However, the Trial Court also found that the evidence against all the accused persons was not uniform and, accordingly, extended the benefit of doubt to certain accused persons, while convicting others whose involvement was found to be established on the basis of evidence on record. Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 14/142 Accused-wise Findings
33. The learned Trial Court, while dealing with a large number of accused persons, proceeded to assess the evidence in respect of individual accused on the basis of identification by witnesses, attribution of role and corroboration from other evidence.
34. It is evident from the judgment that the Trial Court relied primarily upon:
35. Identification of accused persons by eyewitnesses and injured witnesses, both in court and in the Test Identification Parade;
36. Attribution of presence and participation of the accused in the unlawful assembly;
37. General role of assault, arson and participation in mob violence, even in cases where specific overt acts were not attributed individually;
38. Application of Section 149 IPC, holding that once participation in the unlawful assembly with common object was established, individual overt act was not necessary.
39. The Trial Court observed that in a case of mob violence involving a large number of persons, it may not be Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 15/142 possible for witnesses to assign specific overt acts to each accused and that the consistent evidence regarding participation in the unlawful assembly was sufficient to attract vicarious liability under Section 149 IPC.
40. Accordingly, the Trial Court convicted those accused persons against whom:
(i) There was identification by witnesses; and/or
(ii) Their presence and participation in the unlawful assembly was established; and/or
(iii) Their involvement was supported by corroborative evidence.
41. At the same time, the Trial Court acquitted certain accused persons where:
(i) Identification was found doubtful; or
(ii) Evidence was insufficient to establish participation; or
(iii) There was lack of corroboration.
42. Thus, the approach of the Trial Court indicates that while the occurrence and the formation of unlawful assembly were accepted as proved, the conviction of individual accused persons was based primarily on Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 16/142 identification and attribution of participation, rather than specific individual acts in every case.
Appreciation of Evidence
43. In order to appreciate the evidence in its proper perspective, the Court proposes to examine it category-wise. The analysis will first deal with the medical evidence, followed by the dying declaration, the direct testimony of the survivor eyewitnesses, the corroborative and peripheral witnesses, the test identification parade evidence, the informant's testimony and the question of prior enmity, and finally the official and technical evidence, before applying the relevant legal provisions and drawing conclusions.
44. Medical Evidence (PW-1 Dr. Jagdeo Pd. Sinha and PW-2 Dr. Rajendra Kumar Singh): - The post-mortem reports (Ex. 1/7 to 1/10) and injury reports (Ex. 2 and 2/1) establish that the deaths were homicidal and caused by sharp cutting/penetrating weapons such as spears, swords, and gadasas, along with hard blunt objects (lathi/stone). Dr. Jagdeo Pd. Sinha (PW-1) found incised and penetrating wounds on the head, face, neck (carotid artery severance), abdomen (intestine/spleen punctured), and chest on the bodies of Nasima Begam, Meharunisa, Ishrat Begum, and Md. Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 17/142 Rizwan. Dr. Rajendra Kumar Singh (PW-2) similarly noted incised wounds on Shahnaz Bano, an unnamed wife of Md. Yunus, and the six-day-old infant of Ishrat Begum, with fractures, brain damage, and haemorrhage. Both doctors consistently opined that rigor mortis was present in the lower limbs and that death had occurred within about 24 hours, aligning precisely with the timing of the incident on 01.05.1981. The cause of death in each case was attributed to shock and hemorrhage from injuries that were sufficient in the ordinary course of nature to cause death.
45. This medical testimony provides powerful corroboration for the survivor accounts of cut injuries inflicted while women and children were dragged and assaulted in Ulfat Miyan's verandah and courtyard. The pattern of incised and penetrating wounds matches the repeated descriptions by multiple eyewitnesses of the use of spears, swords, and gadasas during the attack. In Darbara Singh v. State of Punjab, reported in (2012) 10 SCC 476, the Hon'ble Supreme Court emphasised that medical evidence is corroborative in nature. However, in a situation where the inconsistency between ocular and medical evidence is so extreme that the medical witness totally rules out the possibility of the ocular Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 18/142 evidence being true, the court must carefully examine the conflict before relying on the oral testimony. The relevant para number 10 of the said judgment is reproduced below:
"10. So far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved. (Vide State of U.P. v. Hari Chand [(2009) 13 SCC 542 : (2010) 1 SCC (Cri) 1112] and Bhajan Singh v. State of Haryana [(2011) 7 SCC Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 19/142 421 : (2011) 3 SCC (Cri) 241])"
46. Here, there is no conflict. The medical evidence strongly supports the oral testimony rather than contradicts it. The absence of gunshot wounds, however, weakens claims of firearm use by certain accused, such as Raj Kishore Sao, and underscores the need for caution in accepting every detail of the survivor narratives.
47. Dying Declaration of Ishrat Begum (PW-29 Hardev Prasad, JM) : - Ishrat Begum (daughter of the informant) was an injured eyewitness flagged in the fardbeyan as the person who would name the accused upon regaining consciousness. PW-29 Hardev Prasad, the Judicial Magistrate, recorded her dying declaration on 02.05.1981 at 11:00 a.m. in Sadar Hospital. He certified that her mental condition was normal, she was fit to make the statement, no one else was present, and the statement was read over to her before she affixed her thumb impression.
48. A dying declaration is substantive evidence and can form the sole basis of conviction if it inspires confidence, is voluntary, truthful, and made in a fit mental condition with expectation of death, as laid down in Khushal Rao v. State of Bombay, reported in AIR 1958 SC 22. Relevant para number Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 20/142 16 of the said judgment is reproduced below:
"16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made ; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions -and answers, and, as far as Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 21/142 practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human, memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the. circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the state- ment has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it-; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
49. In Laxman v. State of Maharashtra, reported in (2002) 6 SCC 710, the Hon'ble Supreme Court reiterated that the court must satisfy itself that the declarant was in a fit state of mind and that there was no tutoring or prompting. The Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 22/142 relevant para number 3 of the said judgment is reproduced below:
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross- examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 23/142 deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 24/142 it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
50. Yet this dying declaration presents material difficulties. It does not mention Raj Kishore Sao, a figure repeatedly named by almost every survivor as the man with a Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 25/142 gun giving orders to kill. It also omits Ishwari Singh, named in several TIPs and by some survivors. PW-7 Shahabuddin and PW-8 Murtuza claimed Ishrat named a long list including Raj Kishore and Ishwari Singh before the Magistrate, but PW- 29 explicitly states that no one else was present and the names are absent. These contradictions reduce the probative force of the declaration.
51. The Hon'ble Supreme Court in Khushal Rao (Supra) held that a dying declaration recorded by a competent magistrate in the proper manner (question-and-answer form, in the words of the declarant) stands on a much higher footing than an oral dying declaration (principle (v)). However, even a Magistrate-recorded dying declaration is not immune from close scrutiny.
52. Where such a declaration contains glaring omissions of named accused who are prominently featured in other evidence, such as FIR, eye-witness testimony, medical evidence, recoveries, etc., then the declaration becomes suspicious qua those accused. In such circumstances, the Court is required to approach it with heightened caution and cannot place implicit reliance upon it without independent corroboration. Reliance on this point may be placed by the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 26/142 Hon'ble Supreme Court's decision in Suresh v. State of T.N., reported in (2025) 4 SCC 794. The relevant para number 20 of the said judgment is reproduced below:
"20. As discussed above, in cases where the dying declaration is suspicious, it is not safe to convict an accused in the absence of corroborative evidence. In a case like the present one, where the deceased has been changing her stance and has completely turned around her statements, such a dying declaration cannot become the sole basis for the conviction in the absence of any other corroborative evidence."
53. It is equally settled that the Court must look for corroboration in each accused before acting upon a dying declaration; in the absence of such corroboration, conviction cannot be sustained on the dying declaration alone. This principle flows from Harbans Singh v. State of Punjab, reported in 1961 SCC OnLine SC 40. The relevant para number 16 of the said judgment is reproduced below:
"16. The learned Judge has also misdirected himself in thinking that the dying declaration had very little probative value because as many as six accused persons had been named and Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 27/142 that no conviction could in law be based on such dying declaration without corroboration. The law does not make any distinction between a dying declaration in which one person is named and a dying declaration in which several persons are named as culprits. A dying declaration implicating one person may well be false while a dying declaration implicating several persons may be true. Just as when a number of persons are mentioned as culprits by a person claiming to be an eye-witness in his evidence in court the court has to take care in deciding whether he has lied or made a mistake about any of them, so also when a number of persons appear to have been mentioned as culprits in a dying declaration that court has to scrutinise the evidence in respect of each of the accused. But it is wrong to think that a dying declaration becomes less credible if a number of persons are named as culprits. The contrary view taken in the Lahore High Court in Khurshaid Hussain v. Emperor (43 Criminal LJ (1942) 59) on which apparently the Trial Judge has relied is clearly erroneous."
54. Here, the omissions, combined with Ishrat's Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 28/142 severe head injuries (fractured parietal bone, brain matter incised and ecchymosed, as noted in PW-1), raise legitimate questions about her fitness despite the Magistrate's certification. While the declaration remains admissible, its weight is limited, and it cannot be the sole basis for convicting those not named in it, particularly when prior enmity is established.
55. Survivor Eyewitnesses (Direct Evidence of the Attack) : - The core of the prosecution case rests on the direct evidence of the survivors who hid in Md. Miyan's and Ulfat Miyan's houses during the attack. PW-6 Aftaab Alam, PW-10 Yunus, PW-13 Jamila Khatoon, PW-15 Samima Khatoon, PW-16 Salauddin, PW-17 Sarifan, PW-18 Jarina, PW-21 Md. Samim, and PW-22 Anwari give a consistent account of the mob surrounding the houses, setting Md. Miyan's house on fire, the group cutting a hole in the wall to move to Ulfat Miyan's house, the mob breaking the door, dragging women and children out to the verandah, beating them, snatching jewellery, and inflicting cut injuries. Specific roles are attributed repeatedly to Raj Kishore Sao (carrying gun and orders to kill), Panna Lal (carrying spear and orders), Gilu Pandey (carrying sword and dragging women), Umesh Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 29/142 Thathera (dragging and killing), Sadhu Singh (carrying spear and killing while snatching belongings), Chhote Kumhar (carrying sword and attack on the six-day-old child), and Sunil (carrying spear, killings, and abduction of Murshida). This multi-witness consistency on the sequence and the core accused is compelling.
56. In Muthu Naicker v. State of T.N., reported in (1978) 4 SCC 385, the Hon'ble Supreme Court held that in cases of rioting by a large unlawful assembly or mob violence, the evidence of identification and participation must be scrutinised with care and cannot be accepted mechanically. The relevant para number 6 of the said judgment is reproduced below:
"6. Where there is a melee and a large number of assailants and number of witnesses claim to have witnessed the occurrence from different places and at different stages of the occurrence and where the evidence as in this case is undoubtedly partisan evidence, the distinct possibility of innocent being falsely included with guilty cannot be easily ruled out. In a faction-ridden society where an occurrence takes place involving rival factions it is but Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 30/142 inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan is to shut one's eyes to the realities of the rural life in our country. Large number of accused would go unpunished if such an easy course is charted. Simultaneously, it is to be borne in mind that in a situation as it unfolds in the case before us, the easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and is to be eschewed and, therefore, the evidence has to be examined with utmost care and caution. It is in such a situation that this Court in Masalti v. State of U.P. [AIR 1965 SC 202 : (1964) 8 SCR 133 : (1965) 1 Cri LJ 226] adopted the course of adopting a workable test for being assured about the role attributed to every accused. To some extent it is inevitable that we should adopt that course."
57. Further, in Baladin v. State of U.P., reported in (1955) 2 SCC 260, the Hon'ble Supreme Court in paragraph 24 has observed as under:
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 31/142 "24. It is manifest that the first three grounds do not make out a case for special leave but we think that the fourth ground does. It is well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under Section 142 of the Penal Code. In this case there is no doubt that the original inhabitants of the village were all inimically disposed towards the newcomers. From the site plan (Ext. P-18) of the houses of the refugees, it is clear that the houses of the accused persons and of the refugees are situate close to one another. The house of Mangal Singh which was the scene of the occurrence was surrounded by the houses of the original inhabitants of the village including some of the accused persons.
According to the prosecution case, one party of the members of the unlawful assembly entered the first floor of the house of Mangal Singh through the roof of the house of Parichhat Lodhi adjacent to the south-east and attacked the three persons who were there. The other party Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 32/142 of the miscreants collected at the front door of Mangal Singh's house facing west. In front of Mangal Singh's house is the house of Mahabir, appellant, and on the other three sides of that house are the houses of Baladin Lodhi, Parichhat Lodhi and Ajodhia Lodhi, appellants. It would thus appear that the place of occurrence is surrounded on all sides by the houses of the appellants. If members of the family of the appellants and other residents of the village assembled, all such persons could not be condemned ipso facto as being members of that unlawful assembly. It was necessary therefore for the prosecution to lead evidence pointing to the conclusion that all the appellants before us had done or been committing some overt act in prosecution of the common object of the unlawful assembly. The evidence as recorded is in general terms to the effect that all these persons and many more were the miscreants and were armed with deadly weapons, like guns, spears, pharsas, axes, lathis, etc. This kind of omnibus evidence naturally has to be very closely scrutinised in order to eliminate all chances of false or mistaken implication. That feelings were running high on both sides is beyond question.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 33/142 That the six male members who were done to death that morning found themselves trapped in the house of Mangal Singh has been found by the courts below on good evidence. We have therefore to examine the case of each individual accused to satisfy ourselves that mere spectators who had not joined the assembly and who were unaware of its motive had not been branded as members of the unlawful assembly which committed the dastardly crimes that morning. It has been found that the common object of the unlawful assembly was not only to kill the male members of the refugee families but also to destroy all evidence of those crimes.
Thus even those who did something in connection with the carrying of the dead bodies or disposal of them by burning them as aforesaid must be taken to have been actuated by the common objective."
58. In cases of rioting by a large unlawful assembly, the evidence must be scrutinised with care, and mere presence in the mob is not enough; there must be evidence of participation or sharing the common object. The Hon'ble Supreme Court, keeping in acknowledging the need for appreciating evidence in such cases devised the Masalti rule in Masalti v. State of U.P., reported in 1964 SCC OnLine SC 30. Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 34/142 The relevant para number 16 of the judgment where the Court pronounced the said rule is as follows:
"16. Mr. Sawhney also urged that the test applied by the High Court in convicting the appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal court has to deal with 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 two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 35/142 because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But, sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case."
59. The survivor testimony satisfies this test for the core group, particularly when corroborated by the medical findings of cut injuries and the IO's seizures of burnt material and blood-stained items from the house cluster.
60. Corroborative and Peripheral Witness Testimony (PW-3, PW-4, PW-5, PW-9, PW-11, PW-12, PW-23, PW-27, PW-28, PW-30): - Several other prosecution witnesses lend important support to the factum of the occurrence, the scale of violence, and the surrounding circumstances, even though they do not provide direct identification of the accused or specific overt acts. PW-3 Md. Hanif heard the slogans "surround the Muslims and do not let them go" and "kill the Muslims" just before noon on 01.05.1981, saw smoke rising from Alinagar, and along with others went to the Dargah Outpost to report the fire; the police response was delayed, Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 36/142 and he later saw injured persons and children being brought to the Outpost. PW-4 Md. Salim Uddin gave a vivid eyewitness account of a mob of 400-500 persons approaching his house, identified several leading accused (Rajkishor Sao with gun, Panna Lal with spear, Rameshwar Sav Patwa with sword, Chhote Kumhar with sword, Billu Pandey with pistol and sword, Laxman Patwa with axe, Ramnath Patwa with sword, Vishwanath Patwa with saif), saw his mother being dragged away, and remained hidden on the toilet roof while the house was looted and set on fire. PW-5 Md. Alam, though an injured person, gave virtually no substantive evidence in examination- in-chief and was virtually tendered. PW-9 Azimuddin and his family took shelter in Jatti Singh's house; the mob pushed the door and beat Jatti Singh, but no accused were named by this witness. PW-11 Md. Halim took shelter in Salim Miyan's house, saw a huge armed mob, and came out only at 4:00 a.m. the next morning when the houses of seven-eight Muslims had been set on fire. PW-12 Akhtar Hussain was tendered and merely stated that his police statement was recorded one month after the occurrence; he had been working in a bidi godown in Jhingnagar. PW-23 Brij Nandan Kumar (BDO) spoke about the prior graveyard dispute in Mirganj field Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 37/142 involving Sahabuddin, Salimuddin, and Hasim. PW-27 Mohan Lal Singh deposed on the tense situation in Bihar Sharif from 30.04.1981, the imposition of curfew, and the arson in Gagan Diwan locality the previous evening. PW-28 Syed Abdul Gani (Constable at Dargah Outpost) described receiving three successive reports of fire and killings, the initial refusal to proceed without a Magistrate, the eventual armed police party reaching Alinagar around 02:30-03:00 p.m., seeing the burnt houses, dead bodies, and injured persons, and bringing survivors and injured to the Outpost. PW-30 Tamannah Ahmed formally proved the handwriting and signatures of Dr. V. Prasad and Dr. Arun Kumar Sinha on four post-mortem reports (Ex. 1/7 to 1/10).
61. Collectively, these witnesses establish the occurrence, the delayed police response, the prior communal tension, and the scale of the violence without contradiction. Their evidence forms a strong corroborative chain that buttresses the direct survivor testimony and medical findings, lending credibility to the prosecution version of a large-scale communal attack.
62. The hon'ble Supreme Court has consistently held that witnesses who support the factum of occurrence and Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 38/142 the surrounding circumstances furnish valuable corroboration that adds substantial weight to the prosecution case, even if they do not identify the accused. In Masalti (Supra), the Court emphasised that in cases involving a large number of offenders, the prosecution derives strength from a consistent account of the incident given by multiple witnesses. Testimony proving the genesis, manner, and surrounding circumstances of the crime constitutes material corroboration, irrespective of whether every witness identifies each accused.
63. It is equally well settled that the failure of a witness to identify the accused does not render his evidence worthless on the question of the factum of occurrence. Such testimony retains its full corroborative value and adds substantial weight to the prosecution case when read with the identifying witnesses or other material on record. Reliance on this point may be placed by referring the hon'ble Supreme Court's judgment in Ramesh Harijan v. State of U.P., reported in (2012) 5 SCC 777, where the witness had turned hostile on naming/identifying certain accused but the Court relied on his testimony regarding the factum of the occurrence and convicted the appellants on the basis of the credible portion. The relevant paragraph number 23 of the said Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 39/142 judgment is reproduced below:
"23. It is a settled legal proposition that the evidence of a prosecution 9 witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examine him.
"6....The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof."
[Vide Bhagwan Singh v. State of Haryana: Rabindra Kumar Dey v.
State of Orissa: Syad Akbar v. State of Karnataka and Khujji v. State of M.P."
(SCC p. 635. para 6).
64. Thus, where independent or semi-independent witnesses consistently depose to the occurrence and its surrounding circumstances, their evidence provides strong corroboration and cannot be brushed aside merely because they did not identify the accused persons.
65. TIP Evidence (PW-25 Ibrar Hasan, SDJM) : -
PW-25 conducted multiple TIPs on 28.05.1981, 09.06.1981, 10.06.1981, and 11.06.1981. Several witnesses (Jamila, Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 40/142 Anwari, Salauddin, Shamim, Sharifan, Shamima) identified accused such as Ishwari Singh, Ajay Singh, Kisto Patwa, Laxman Ram Patwa, Naresh Das, Moti Dusad, Om Prakash, and Kamal Kishore, with roles stated during the parades (armed with spear or saif, setting fire, dragging and killing).
However, the TIP evidence suffers from procedural infirmities. Many suspects in several parades came from the same village (Ganjpar), creating a risk of unfair mixing. Queues were large, sometimes exceeding 280 persons, making fair identification difficult. Bail accused were produced by their lawyers, raising the possibility of prior exposure. No identification marks were noted on the suspects. In Dana Yadav v. State of Bihar, reported in (2002) 7 SCC 295, the hon'ble Supreme Court held that the purpose of a Test Identification Parade is to test the memory of the witnesses based upon the first impression so as to verify the accused from among other persons without any aid or external influence. The relevant paragraph number 6 of the judgment is reproduced below:
"6. It is also well settled that failure to hold test identification parade, which should be held with reasonable dispatch, does not make the evidence of Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 41/142 identification in court inadmissible, rather the same is very much admissible in law. Question is, what is its probative value? Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence. We are fortified in our view by a catena of decisions of this Court in the cases of Kanta Prashad v. Delhi Admn. [AIR 1958 SC 350 : 1958 Cri LJ 698] , Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 42/142 Vaikuntam Chandrappa [AIR 1960 SC 1340 : 1960 Cri LJ 1681] , Budhsen [(1970) 2 SCC 128 : 1970 SCC (Cri) 343] , Kanan v. State of Kerala [(1979) 3 SCC 319 : 1979 SCC (Cri) 621] , Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700 : 1982 SCC (Cri) 334] , Bollavaram Pedda Narsi Reddy [(1991) 3 SCC 434 : 1991 SCC (Cri) 586] , State of Maharashtra v. Sukhdev Singh [(1992) 3 SCC 700 : 1992 SCC (Cri) 705] , Jaspal Singh v. State of Punjab [(1997) 1 SCC 510 : 1997 SCC (Cri) 358] , Raju v. State of Maharashtra [(1998) 1 SCC 169 : 1998 SCC (Cri) 296] , Ronny [(1998) 3 SCC 625 : 1998 SCC (Cri) 859] , George v. State of Kerala [(1998) 4 SCC 605 : 1998 SCC (Cri) 1232] , Rajesh Govind Jagesha [(1999) 8 SCC 428 : 1999 SCC (Cri) 1452] , State of H.P. v. Lekh Raj [(2000) 1 SCC 247 : 2000 SCC (Cri) 147] and Ramanbhai Naranbhai Patel v. State of Gujarat [(2000) 1 SCC 358 : 2000 SCC (Cri) 113]."
66. However, the evidentiary value of a TIP is minimal if the witnesses knew the accused earlier or if the parade is not conducted fairly. In Raj Kumar v. State (NCT of Delhi), reported in 2025 SCC OnLine SC 2465, the Hon'ble Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 43/142 Supreme Court expounded the same principle, holding, if witness had opportunity to see accused before TIP, then test identification proceedings are not reliable. The relevant para number 62 of the said judgment is reproduced below:
"62. It is trite that where the witnesses have had an opportunity to see the accused prior to the holding of the TIP, the evidentiary worth of such proceedings stands considerably diminished. It is the duty of the prosecution to establish beyond doubt that right from the time of arrest, the accused was kept baparda to rule out the possibility of his face being seen before the identification proceedings are conducted. If the witnesses have had any opportunity to see the accused before the TIP - whether physically or through photographs - the credibility and sanctity of the identification proceedings would stand seriously compromised."
67. The TIPs therefore provide only limited corroboration and cannot cure the identification weaknesses where the court testimony already suffers from prior acquaintance or delay.
68. Informant's Evidence and Prior Enmity (PW- Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 44/142 14 Md. Hasim): - The informant, Md. Hasim (PW-14), was absent during the attack. His fard beyan is hearsay for the core facts of the violence. In court, he claimed the injured were found in Ulfat Miyan's house (not his own house as stated in the fardbeyan) and that names came from Younis Miyan and others at the Dargah Outpost. He also admitted prior enmity with Raj Kishore Sao and Panna Lal over the graveyard dispute and the RSS shakha. These contradictions damage the foundational document. In Rammi v. State of M.P., reported in (1999) 8 SCC 649, the hon'ble Supreme Court held that, while normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. The omissions which amount to contradictions in material particulars render the testimony of the witness liable to be discredited. The relevant Paragraph Nos. 26 and 27 of the said judgment are reproduced below:
"26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be "contradicted" would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross- Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 45/142 examiner to use any former statement of the witness, but it cautions that if it is intended to "contradict" the witness the cross-examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross- examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to "contradict" the witness.
27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Cri LJ 1231] )."
69. The informant's evidence therefore carries limited weight on the identity of the accused, though it supports the occurrence and the initial police response.
70. Prior enmity, a factor that can discredit identification evidence, is established through the graveyard dispute and RSS shakha. The Hon'ble Supreme Court in Piara Singh v. State of Punjab, reported in (1977) 4 SCC Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 46/142 452, held that where enmity is proved between the parties, the evidence of interested or inimical witnesses must be scrutinised with greater care and circumspection. The relevant para number 4 of the said judgment is reproduced below:
"4. The central evidence against the appellant consisted of the three eyewitnesses, namely, PW 3 Harbhajan Singh, PW 5 Chanan Kaur and PW 6 Kesar Kaur. It is true that the three witnesses were relations of the deceased and bore animus against the accused but as the occurrence had taken place near the door of the house of the deceased these persons were the natural witnesses and were in fact sitting in the court-yard when the occurrence took place. It may be difficult to get witnesses from the village when an assault of the type suddenly takes place in the house of the deceased. It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the court is satisfied that the evidence is credit-worthy there is no bar in the Court relying on the said evidence. The High Court was fully alive to these principles and has in fact Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 47/142 found that the evidence of these three witnesses has a ring of truth. After having perused the evidence ourselves also we fully agree with the view taken by the High Court. In fact, the learned Sessions Judge has not made any attempt to dwell into the intrinsic merits of the evidence of these witnesses but has rejected them mainly on general grounds most of which are either unsupportable in law or based on speculation. The evidence of the eyewitnesses is sought to be corroborated by the evidence of PW 7 Kundan Singh to whom the whole occurrence was narrated immediately after the accused left the house. There is also the evidence of Balbir Singh, PW 17, who is a Sarpanch of the village and an independent witness and who proves that the appellant Piara Singh had made an extra judicial confession before him in which he admitted to have committed the murder of the deceased Surjit Singh along with his companions Kashmir Singh, Gian Singh and Joginder Singh. This witness also proves that Kashmir Singh on being narrated by the details made a disclosure which resulted in the recovery of the Kirpan from the sugarcane field of Meja Singh for which a search list was prepared and the Kirpan Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 48/142 was also found stained with human blood. According to the Investigating Officer an empty cartridge was also found at the spot and he sent the same to the Ballistic Expert along with the rifle recovered from Piara Singh who was a constable in the Border Security Force and the Ballistic Expert found that the empty could have been shot from the rifle in question. These circumstances fully corroborate the evidence of the eyewitnesses. Finally, there is the medical evidence of Dr Jatinder Singh who performed the post- mortem examination on the deceased and he found as many as 7 incised wounds on the various parts of the body of the deceased and 7 incised punctured wounds on some vital parts of the body. Apart from these injuries the deceased had also sustained a gun shot injury with a wound of entry and exit on the left buttock, which according to Dr Jatinder Singh could be caused by a firearm including a rifle. The Doctor further deposed that the contusions and abrasions were caused by a blunt weapon and the other incised wounds were caused by a sharp cutting instrument like the Gandasa. Another Doctor was examined by the Sessions Judge as Court Witness 1 who on seeing Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 49/142 the post-mortem report of Dr Jatinder Singh was of the view that Injury 11 could not have been caused by a rifle and much capital was made by the accused out of the evidence given by Dr Paramjit Singh."
71. It is equally well settled that enmity is a double- edged weapon. While it may provide a motive for the offence, it also raises a serious possibility of false implication of innocent persons. In such cases, the Court is duty-bound to examine the evidence with heightened scrutiny so as to ensure that no innocent person is roped in on account of previous enmity. The graveyard incident, involving Raj Kishore Sao and Panna Lal on one side and the informant and Muslim witnesses on the other, provides a clear motive for selective implication, particularly of prominent local figures.
72. Official and Technical Evidence: - The official and technical evidence further strengthens the occurrence. PW-19 Vinay Kumar Sinha and PW-20 Kameshwar Prasad Singh confirm the afternoon police response, the recovery of nine dead bodies and seven injured, and the presence of at least two burnt houses. PW-26 Rajendra Prasad, the Magistrate, proves seizures of burnt wood, ashes, blood- soaked soil, and blood-soaked cloth from the house cluster. Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 50/142 PW-24 Avindra Ranjan, the CID photographer, proves photographs of burnt thatched roofs and walls. PW-31 Pannalal Mehra, the Investigating Officer, details the scene visit, seizures, line diagrams, and statements recorded from key survivors. These witnesses corroborate the scale of arson and violence but do not identify any accused.
Evidence on behalf of the prosecution in Trial Court
73. It is already mentioned that during trial, prosecution examined as many as 31 witnesses. The nature of witnesses may be classified in the following categories:-
(a) eyewitnesses;
(b) witnesses, who described the incident but did not see the incident of arson, looting and murder;
(c) medical evidence and;
(d) Investigating Officer.
74. It is pertinent to mention here that the investigation of the case was conducted by the CID, but the Investigating Officer (PW-31) did not face the cross examination by the defense. Therefore, evidence of the Investigating Officer without cross-examination cannot be Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 51/142 considered. Amongst the eyewitnesses, PW-4, Md. Salimuddin was examined on 25.04.1985. It is found from his evidence that on 01.05.1981 (Friday), he was in his house with his family members. At about 12:00 Noon, he noticed that a gathering was being formed in their locality and they were declaring that the Mohammedan inhabitants of the locality would not be allowed to go anywhere. Hearing this, PW-4 apprehended that the mob might eliminate the Mohammedans. Then he instructed his four sons and three daughters to leave the house and take shelter in the "Dargah". PW-4, his wife Sayeda Khatoon and old mother were in the house. Gradually, he saw that the number of people in the mob had increased. There were about 400-500 people. Seeing the agitated mob, he and his wife took shelter in the house of one Jatti Singh to save their lives. Since, the mother of PW-4 could not walk, she was left behind the house. The mob attacked the house of PW-4. He then climbed up to the roof of his toilet and laid down to conceal himself on the roof. He saw that about 40-50 people entered into his house, looted the household articles and set the house ablaze. He identified Raj Kishore Sao with a gun in his hand, Panna Lal with a Bhala, Rameshwar Sao Katwa with sword, Surendra Sharma @ Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 52/142 Sheetal Sharma with Lathi, Chhote Kumhar with sword, Bindu Pandey with a pistol and a sword. The son of one Panditayan with sword, Lakhan Kotwa with Garasa, Ram Nath Kotwa with sword and Vishwanath Kotwa with a weapon (lSaQ). He also stated on oath that Rameshwar Kotwa dragged his mother out of the house, catching hold of her hand and till date he did not find his mother. After ransacking the house of PW-4, the mob proceeded towards the house of other Mohammedan inhabitants of the village. He heard screams of cry of the local inmates and sounds of explosion of bomb. The tension continued for about three days. Thereafter, police came to the village and the said mob disbursed. The witness spent one night on the roof of the toilet out of fear. On the next day of occurrence, he went to the Dargah. He found many other people in Dargah except his mother. On the third day of incident, he returned his house. He did not find any household articles there. On the fourth day, he and his wife left the village for Kunasarai and stayed there for one month. The witness identified six accused persons, who were named by him. He also stated that he would be able to identify the remaining accused persons.
75. During cross-examination, the learned Defense- Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 53/142 Counsel took elaborate topography of the house of the witness. During cross-examination, the witness reiterated that he saw entire incident lying on the roof of his toilet made of "Khapra" (mud tiles). It was also taken during cross- examination that none of the mob tried to climb bath to the roof of the toilet of the witness. None of them threw pieces of bricks on the roof. Thus, it is clear that PW-4 saw the incident without any interruption or hindrance by anybody.
76. It is also found from the cross-examination of PW-4 that he stayed in Dargah for about four days and during the said period, these victims did not get any government help or police help. In cross examination, he also stated that one of the accused Raj Kishore Sao is a Ward Commissioner and at the relevant point of time he was Vice President of Bihar Municipality. It was suggested during cross-examination of PW-4 that accused Raj Kishore Sao was the Secretary of the School and Secretary or a Member of a Political Party named "Bharatiya Janta Party". The witness expressed his ignorance and stated that he did not know the above-mentioned facts.
77. PW-6, Md. Aftab Alam claimed himself to be another eyewitness of the occurrence. It is ascertained from his evidence also that on the date of occurrence at about 12:00 Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 54/142 Noon, he found a group of persons of a particular community gradually assembling at a place near their mohalla. His father informed the matter to him. Seeing the mob, PW-6 and his brother-in-law Ali Ahmad proceeded towards the main Dargah of the village riding on two cycles. When they reached near the bridge, they saw the mob being armed with weapons. Seeing the armed mob, he returned his house but his brother- in-law remained untraceable till date. PW-6 took shelter in the house of one Mohammad Miyan. He saw the women and small children also taking shelter in the house of Mohammad Miyan to conceal themselves from the mob. The house of Mohammad Miyan was closed from inside. Within few minutes, PW-6 heard a sound of explosion of bomb near the house of Mohammad Miyan. Some of the miscreants set the house of Mohammad Miyan on fire. Since, the house of one Ulfat Miyan was on the adjacent east of the house of Mohammad Miyan, the people who took shelter in the house of Mohammad Miyan cut a hole on the eastern side wall and took shelter in the northern side room of Ulfat Miyan. The miscreants then set the house of Ulfat Miyan on fire. After fire broke out, the father of PW-6 and some woman and children again seeped through the said hole to the house of Mohammad Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 55/142 Miyan, while others remained in the house of Ulfat Miyan. The miscreants indiscriminately started assaulting the people who took shelter in the house of Ulfat Miyan and Mohammad Miyan amongst the miscreants. The witness could identify Raj Kishore Sao, Sunil Sao @ Ranu Sao, Gilu Pandey (son of Pandatayan), Umesh Thathera, Radhe Pandit @ Radhey Kumhar, Chhote Kumhar. He also described how the above- named accused persons were armed. The witness further stated that Chhote Pandit being armed with a sword committed murder of a six-days old baby, throwing him on the grinding stone and assaulting him with the help of stone grinder (pestle). In cross-examination, it was specifically taken that one of the accused, namely Umesh Thathera openly committed rape upon the wife of Salauddin in the room of Ulfat Miyan in presence of 50-60 Mohammedans and thereafter, she was murdered by Umesh. From his cross- examination, it is ascertained that he saw the incident from the northern side room "kothari" of Ulfat Miyan. Police rescued him from the said room (Kothari) and he was taken to the main Dargah of the village.
78. PW-9, Azimuddin corroborates the sequence of events as narrated by PW-4 & PW-6. From his evidence, we Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 56/142 find that seeing the agitated, armed mob he along with some other people of the said mohalla took shelter in the house of Jatti Singh. Jatti Singh was assaulted by the miscreants, because he gave shelter to the neighbouring Mohammedan people and tried to save them. He was rescued by police at about 04:30 P.M. on the date of occurrence. Only then, he saw that the houses of some Mohammedan people were burning. The miscreants also killed and injured number of Muslims of the said Mohalla. PW-9, however, did not tell the name of any of the assailants.
79. PW-10, Md. Yunus gave an elaborate account of the incident in his examination-in-chief. On the date of occurrence at about 12:30 P.M. he was in his house. Seeing a gathering of about 200 people of another community armed with weapons, he along with his family members took shelter in the house of Mohammad Miyan. Some other Mohammedan inhabitants also took shelter in the said house to save themselves from the agitated mob. Mohammad Miyan closed the door of his house from inside. When the mob could not enter inside the house of Mohammad Miyan, they set his house on fire from outside. House of Ulfat Miyan is attached to the house of Mohammad Miyan on the eastern side of wall. Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 57/142 The witness and others opened a hole on the common wall of the house of Mohammad Miyan to go to the house of Ulfat Miyan to take shelter. When the miscreants found that some people of the locality took shelter in the house of Ulfat Miyan, they set fire on the house of Ulfat too. The people taking shelter in the house of Ulfat Miyan again came to the house of Mohammad Miyan like mice in the cage trying to find out some way to save their lives. They took shelter in a "Kothari" in the house of Mohammad Miyan. The miscreants broke open the bolt of the said Kothari where mainly, the women and children were taking shelter. They forcibly dragged the women from the said Kothari and started injuring them with sharp cutting weapons. They snatched away the ornaments of the ladies. One of the female child, named, Murshida was taken away by some miscreants and till date she remains untraceable. The wife of Sahabuddin, namely, Sairunnisha and the daughter of Hasib Miyan, named Ishrat were murdered by the miscreants. The dead body of Sairunisha has not been recovered till date. Mother of Salim named Judari Begum, son-in-law of PW-10 named Ali Ahmad are also untraceable till date. After the incident, police came and seeing police party the miscreants left the place, then only the witness and Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 58/142 other people who could save their lives came out from their places and hiding. Police took them to the main Dargah of the Village. The witness stated that amongst the miscreants, he could identify Raj Kishore Sao, Panna Lal, youngest son of Rama Sao, Sunil, Radhey Kumhar, Chhotey Kumhar, Lakhan Kumhar, Surendra Sharma @ Sheetal Sharma, Bholu Chamar, Nathun Chamar @ Jhapsi Chamar. The witness further stated that Sairunnisha and Ishrat were murdered by Sunil. Sunil also committed murder of the wife of PW-10 Kaniza Bibi and their four-months old girl child Muni. Radhey Kumhar assaulted Asgari Khatoon with the help of a bhala. Chhotey Kumhar committed murder of 06 days baby of Ishrat, throwing him against a grinding stone. PW-10 also stated that the offenders whom he identified in Test Identified Parade (TIP) and also in Court where setting fire on the houses of Mohammedans. The Examination-in-Chief of PW-10 remained unshaken in spite of long and elaborate cross-examination.
80. PW-13, Jamila Khatoon, is one of the injured eyewitnesses, who gave a detailed and vivid account of the attack. She deposed that at about 12:30 p.m. on 01.05.1981, a large mob surrounded the houses in Alinagar Mohalla. She, along with other women, children and some men, took shelter Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 59/142 in Mohammad Miyan's house and locked the door from inside. When the mob set that house on fire, the inmates broke a hole in the common wall between the house of Mohammad Miyan and Ulfat Miyan. Thereafter, the mob then broke the entrance door of Ulfat Miyan's house also entered the premises, dragged the women and children out on the Verandah and courtyard and assaulted them brutally, looted their jewellery and killed nine persons including Kaniza Khatoon, Asgari Begum, Meharun, Shahnaz, Naseema, Salauddin's wife, Ishrat's six-days-old infant, Armaan and Rizwan. She specifically named Raj Kishore Sao, Panna Lal, Gilu Pandey and others as the persons who were actively involved in the assault, looting, and killing. She identified several of them, both in court and during the Test Identification Parade. In cross-examination, she stood firm on her identification and denied having been tutored. Her testimony is one of the most important direct eyewitness accounts of the actual violence inside the houses.
81. PW-14, Md. Hasim, who is the informant on the basis of whose recorded statement (Fardbeyan), Bihar P.S. Case No. 333 of 1981 was registered. He is not an eyewitness of the incident but we would like to record the evidence of Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 60/142 PW-14 here and now, because upon his statement the case was registered. According to the informant PW-14, he and his brother Sahabuddin were going to Bari Dargah of the village to offer Jumma prayer. After the prayer, when he came out, he saw spiraling of smoke flowing towards the sky from Alinagar Mohalla. He immediately rushed to the Police Outpost situated outside the Dargah to seek help for the safety of his family members, but the police initially did not pay any heed to his request. Later, he again approached the on-duty police officer along with Md. Aziz and Madrasi Baba, then only police reached initially Alinagar in the afternoon. He accompanied the police and found nine dead bodies and four injured persons inside house of Ulfat Miyan. The police brought the dead bodies and injured persons first to the Dargah Outpost and thereafter to Sadar Hospital. Police prepared inquest report in his presence and he put his signature on the inquest report, which had been marked as Exhibit-3/13 to 3/20. It is stated in his statement as well as during his deposition that though he did not see the incident, he came to know about the names of the attackers from the injured persons, particularly, Ishrat Begum. In cross- examination, he admitted the existence of a communal dispute Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 61/142 with Raj Kishore Sao and Panna Lal over the graveyard of the village. From his cross-examination, it is also ascertained that Muslim leaders from Delhi, Lucknow, Agra, Patna and other places had gone to Alinagar indicating political involvement and backing of the communities from behind the curtain in the entire episode. His evidence is important for establishing the fact of the incident, the scale of casualties, and the initial police response, though he is not a direct eyewitness to the violence.
82. It is ascertained from the evidence of PW-16- Md. Salauddin that on 01.05.1981 at about 12:30 P.M., the people of the Hindu community came and surrounded his house in Alinagar. He, along with other residents of the locality, took shelter in Mohammad Miyan's house and locked the door from inside. When the mob set Mohammad Miyan's house on fire and started breaking the door, he and Yunus Miyan broke a hole of about 3½ feet in the common wall that separated the house of Mohammad Miyan and Ulfat Miyan. After making a hole, all the inhabitants of Mohammadan community, who took shelter in Mohammad Miyan's house seeped through the house of Ulfat Miyan. The rioters then broke open the entrance door of Ulfat Miyan and killed ten Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 62/142 women and children including his wife Nazneen alias Razia Khatun. They also looted the ornaments and jewellery. He named a large number of accused with specific weapons and roles, including Raj Kishore Sao giving orders to kill the people belonging to Mohammadan Community, Ajay Singh dragging women and looting and many others out the injured Shahabuddin's son and Hasim's daughter, who later on died in hospital. He identified ten persons in the Test Identification Parade as well as in Court. His testimony is one of the most detailed direct accounts of the killings and looting inside Ulfat Miyan's house.
83. PW-17, Mostt. Sharifan, is the wife of Mohammad Miyan, whose house was burnt to ashes, household articles were lootted and the entire house was ransacked. She corroborated the evidence of other eyewitnesses in detail. In her evidence, she identified Raj Kishore Sao, Lakhan Sao, Panna Lal, Daso Pawaria, Uday Sao, Gilu Pandit, Sadhu Singh, Chandar Patwa, Laxman Patwa, Naresh Gwala and Chhote Kumhar.
84. PW-18, Jarina, is another eyewitness, who corroborated the incident of setting the house of Mohammad Miyan on fire by the rioters, ransacking the house, looting the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 63/142 household articles and snatching the belongings of the Muslims of the locality. She also corroborated that the members of Mohammedan community were assaulted by the mob. She identified Gilu Kumhar, Chandra Patwa s/o Chedi Patwa, and Pandit Thathera as members of unlawful assembly with deadly weapons. In cross-examination, she identified a large number of persons from Patwa Toli, namely, Bharat Patwa, Durga Patwa, Rajendra Patwa, Dinesh Patwa, Mohan Patwa, Rameshwar Patwa, Jagarnath Patwa, Lakshman Patwa, Kesto Patwa. She also identified Aitwari Chamar, Naresh Chamar from Chamartoli, Sharan Yadav from Ganj, Ajay Singh, Brahmdev Sao and Raj Kishore Sao. From her evidence, it is also ascertained that about 10-15 persons of her community saved their lives taking shelter in the house of Jatti Singh.
85. PW-21, Md. Samim and PW-22, Anwari (daughter of Ulfat Miyan), corroborated the eyewitnesses account of the incident. PW-21 identified Raj Kishore Sao, Gilu Pandey, Sadhu Singh and Umesh Thathera. He also identified four persons, namely, Ishwari Singh, Mahavir Prasad, Bharat Prasad and Lakshman Ram in the Test Identification Parade as well as in Court. PW-22 identified Raj Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 64/142 Kishore Sao, Gilu Pandey, Chandra Patwa s/o Chedi Patwa, Umesh Thathera, Vishwanath, and Nandu (Suresh Gowala), among the rioters. She also identified Dinesh Ram and Ishwari Singh in the Test Identification Parade as well as in Court. Her presence at Alinagar on the date and time of occurrence was questioned during her cross-examination but in reply she reiterated that she was present on the date and time of occurrence at Alinagar.
86. Amongst other witnesses, PW-3, Md. Hanif did not see the actual incident. From his evidence, it is found that on 01.05.1981 at about 12:00 noon, some people had assembled on the backside of his house. Amongst them, there were Nandu Kotwa, Vinay Kotwa, Lakhan Kotwa, Nilu Pandey, Chhotey Kumhar and others. They were saying that no Mohammedan inhabitants would be allowed to leave the place. From his evidence, we came to know for the first time that one day before the date of occurrence there was a communal clash between Hindus and Muslims and hearing the words of threat, PW-3 become afraid and left his house with his family members to Bari Dargah to offer Jumma prayer. When he reached near Dargah, he saw smoke spiraling out from Alinagar Mohalla. There was a police outpost outside Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 65/142 the Dargah and Md. Hasim went to the Outpost to record a statement. After sometime, Md. Hasim returned and said that no police personnel were ready to go to Alinagar to pacify the incident. Thereafter, PW-3, Md. Aziz and Madrasi Baba went to police Chawki, they reported that Alingar Mohalla was set on fire and requested them to immediately proceed to Alinagar. Then, a police in the rank of Hawaldar talked to one Shuklaji at about 03:00 P.M. Hawaldar Ganni, Shuklaji and five police personnel armed with rifle reached Alinagar. After about 1-2 hours, the witness saw that Hawaldar Ganni brought the women and children, who were leaving to the Police Outpost. Thereafter, two vehicles reached Alinagar from the police station. The dead bodies of the persons who were killed as well as the injured persons were taken to the vehicles. One Md. Hasim went to the hospital along with the deceased and injured persons. He identified some of the accused persons, namely, Nilu Pandey and Laxman Kotwa.
87. Evidence of PW-7, Sahabuddin is almost similar to the evidence of PW-3. When the incident took place, he was in Bari Dargah to offer Jumma prayer. He accompanied the persons who died and suffered injuries to the hospital by police vehicle. He is a witness of two inquest reports marked Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 66/142 as Exhibit-3 and 3/1.
88. PW-19, Vinay Kumar Sinha, as a police personnel was in-charge of the Control Room. At about 2:40 p.m. on 01.05.1981, he received an instruction from the Collector to go to Alinagar with police force. One Sub- Inspector, armed police force was arranged from him and he reached at about 4:00 p.m. with police force. In Police Chawki near Alinagar Dargah, some people belonging to Mohammedan community had assembled. There were some injured persons in the said police outpost. PW-19 was brought about the incident and informed the matter to the local police station with a request to send more police force to maintain law and order at Alinagar area, then he went to Alinagar Mohalla. He saw one room in burnt condition and in his presence nine dead bodies and six injured persons were recovered. Outside the said house, an injured lady was lying. In all there were seven injured persons- two of them women and five of them were little children. The injured persons were admitted to the hospital.
89. PW-20, Kameshwar Prasad Singh, was the second officer attached to Bihar Police Station at Biharsharif. At about 04:00 P.M., he was in the Control Room of the police Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 67/142 station. At that time, as per the instruction of Collector, he went to Alinagar by a Jeep with police force. He also brought the injured persons, who were waiting in the Outpost at Alinagar to the hospital. He visited the place of occurrence and found three dead bodies lying in front of a house.
90. PW-24, Avindra Ranjan, who took photographs of the place of occurrence. A series of photographs were marked exhibits during trial of the case. The said photographs depict enormity of the incident, showing demolition of houses, thatched roofs, blood stained earth, burnt thatches etc., thereby corroborating the ocular testimony of the eye- witnesses.
91. PW-25, Ibrar Hasan was the Sub-Divisional Judicial Magistrate of Biharsharif. As per the order of the learned Chief Judicial Magistrate, Biharsharif, he conducted Test Identification Parade on several dates of suspects. Conducting of Test Identification Parade, identification of the witnesses, and the specific role attributed against the suspects are delineated below in a tabular form:-
Accused Key TIP Discrepancies
Name witnesses Identificatio
and Roles n
Raj P.W. 4; gunsNot recordedHeavily named in Court
Kishore and orderedas identifiedwith gun / ordered by Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 68/142 Sao to kill in P.W. 25'snearly all key survivers, P.W. 6; gun TIP chartsbut absent from TIP Chart. P.W. 10 ; gunfor the mainAlso absent from Ishart's ordered towitnesses dying declaration. Strong kill prior enmity (grave yard / P.W. 13 ; gun RSS Shakha Head) ordered to kill P.W. 15; guns order to kill P.W. 16;
ordered to set fire kill and loot P.W. 17 ;
guns, ordered to kill P.W. 18 ; part of the mob of assailants P.W. 21; gun Identified in Court by most Panna Lal P.W. 4 ; spearNot recordedConsistent Court roles and order in P.W. 25's(spears / ordered), but P.W. 10 ;TIP charts missing from TIP records.
spear and Linked to same prior
order enmity as Raj Kishore Sao
P.W. 13;
spear and
ordered to
kill
P.W. 15;
spear and
ordered
P.W. 17;
spear, ordered
to kill
Identified in
Court by
most
Gilu P.W. 3; partIdentified byHigh consistency between
Pandit of group Md. Samim,Court and TIP.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 69/142 P.W. 4 ; pistolSamima Stronges identification / sword Khatoon, evidence among all P.W. 6 sword,Md. accused.
hitting Sallauddin
women (roles;
P.W. 10dragging
sword ,women,
hitting killing)
women
P.W. 13
sword,
beating
women took
away her
gold tika of
eight anna
P.W. 15;
dragging
P.W. 16;
dragging /
killing
P.W. 17;
sword,
dragging /
killing
P.W. 18; part
of tbe mob of
assailants
P.W. 21;
sword
Strong Court
identification
Umesh P.W. 6Identified byConsistent Court and TIP
Thathera beating andMd. roles (dragging / killing
harrassing Sallauddin women).
women (dragging /Prior enmity noted (old
(raped killing) case where he testified
Salauddin's against informant's family
wife and then - P.W. 6 and P.W. 10)
killled her;
allegation in
cross-
examination)
P.W. 10;
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 70/142 dragging and killing P.W. 13, dragging and beating women and setting them on fire, took away her gold tika of eight anna P.W. 16;
dragged and
killed wife
Nazneen @
Razia Khatun
P.W. 17;
dragging and
killing
P.W. 21;
spear
Sadhu P.W. 13;Not Consistent Court roles
Singh spear, killingspecifically (spear / killing /
and recorded insnatching); weak or absent
sprinkling P.W. 25'sinexplicit TIP records.
kerosene andsummarized
setting fire charts
P.W. 16;
spear, killing
P.W. 17,
spear, killing
and snatching
belongings
P.W. 21, spear
Chhotey P.W. 3; sword Not Strong consistency on
Kumhar P.W. 4 sword specifically sword and child attack in P.W. 6;recorded inCourt; missing from sword, killedP.W. 25'sexplicit TIP records.
six day's oldTIP charts
child
P.W. 10;
sword, threw
child
P.W. 13;
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 71/142 sword P.W. 16 ;
sword
P.W. 17;
sword
Sunil Sao P.W. 6;Not Consistent Court roles
orders, specifically (spear / killinng /
abduction ofrecorded inabduction); absent from Murshida, P.W. 25'sexplicit TIP records beating TIP charts P.W. 10;
spear, killings (Saibunnisha, Ishrat, wife Kaniza), threw away fourt month old daughter Munni P.W. 13;
killing women and children P.W. 16 ;
killng Ishwari P.W. 13; gunIdentified byGood consistency Singh and looting Jamila between Court and TIP P.W. 15; TIP Khatun, Md.roles P.W. 16; SaifSamim, killing Anwari P.W. 21; TIP Khatun, Md.
Salauddin
(armed with
Gadasi / saif,
killing /
looting)
Ajay P.W. 13;Identified byConsistent Court and TIP
Singh spear, killing Jamila roles
P.W. 15; TIP Khatun, Md.
P.W. 16;Samim,
dragged/kill /Anwari
loot Khatun,
(armed with
Bhala /
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 72/142 Spear killing) Naresh P.W. 13; Saif,Identified byConsistent Court in Court Ravidas killing Md. and TIP P.W. 16,Salauddin, dragged andSamima killed wifeKhatun Razia (dragging / Khatoon killing) Rameshw P.W. 4;Identified byModerate consistency; ar Ram sword, tookwidow some Court roles, TIP mother Sharifan support from Sarifan.
P.W. 10;(looting /
sword arson /
P.W. 13;killing
sword
P.W. 17;
identified in
TIP
Moti Mentioned inIdentified byLimited Court mention;
Dusadh TIP Md. mainly TIP based.
Salauddin
(setting fire
to Md.
Miyan's
house)
Om Mentioned inIdentified byMainly TIP based; limited
Prakash TIP Md. Court detail.
Sao, Salauddin
Kamal and Md.
Kishore Samim
Sao (beating /
looting,
setting fire)
92. PW-26, Rajendra Prasad Sinha was an Executive Magistrate, who accompanied Inspector of Police and Deputy Superintendent of Police and CID, Bihar to Alinagar. The Inspector seized burnt wood and some burnt Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 73/142 arms from three houses under a seizure list. He also seized bloodstained earth and bloodstained apparels from the place of occurrence under two separate seizure lists. PW-26 put his signature as a witness to the seizure on all three above- mentioned seizure lists. His signatures were marked as Exhibit-3/22 to 3/24.
93. PW-27 was tendered by the prosecution.
94. PW-28 was a Hawaldar posted at Police Outpost of Bari Dargah, he accompanied the police force to the place of occurrence on being requested by the Madrasi Baba.
95. PW-29, was a Judicial Magistrate at the relevant point of time, who identified two numbers of TIP reports during his evidence. PW-31, Panna Lal Mehra was the I.O. of the case. He was subjected to Examination-in-Chief, but he did not come forward to face cross examination. Therefore, we are not in a position to consider his statement during Examination-in-Chief.
96. This is all about the evidence on behalf of the prosecution. Accused persons did not lead any evidence in support of their defence. In course of examination under Section 313 of the Cr.P.C., they denied their involvement in the incident.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 74/142 Arguments on behalf of the appellants: -
97. Learned counsels appearing on behalf of the appellants raised the following issues in order to argue that there were material contradictions in the prosecution case and the appellants ought to have been allowed the benefit of doubt. In other words, the evidence on record is not so convincing that the appellants were convicted and sentenced by the Trial Court: -
(i) It is submitted on behalf of the appellants that the statement of the informant (P.W. 14), which was treated as F.I.R. was cryptic in nature, did not describe the names of all the miscreants, who were involved in the alleged offence and especially the appellants were not named in the F.I.R. The informant stated the names of Ranjit Sao, Chandar Patwa, elder son of Chhedi Patwa, two persons, whose names could not be understood from the paper book and Raj Kishore Sao and other 40-50 persons in a group allegedly committed the offence. Thus, the names of the appellants were not stated in the F.I.R.
(ii) The appellants were made accused in connection with Bihar P.S. Case No. 333 of 1981 on the basis of identification by the witnesses in TI Parade, which were Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 75/142 conducted after a lapse of two and a half months from the date of occurrence. The learned counsels also raised various technical questions in the mode and manner of conducting TI Parade.
(iii) The entire incident that took place on 1 st of May, 1981 was in retaliation of a previous incident which took place a day before 1st of May, 1981, when Hindus were attacked by Mohammedans in the same village. Therefore, the incident ought to have been treated as a product of grave provocation and charge under Section 302 of the I.P.C. ought not to have been held to be established.
(iv) The witnesses who claimed themselves to be the eye-witnesses of the occurrence are all close relatives and members of the extended family and no independent witnesses were examined.
(v) All the injured witnesses were not examined.
There were material discrepancies in the prosecution evidence with regard to the roles attributed to the accused persons and the testimonies of witnesses are not consistent in respect of individual participation of the appellants.
(vi) Identification of the accused persons in the Test Identification Parade, without their names being mentioned in Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 76/142 the F.I.R., raises a serious doubt, particularly in absence of evidence to show that the accused persons were not previously known or shown to the witnesses.
(vii) It is also submitted that in a case involving a large mob, the possibility of false implication cannot be ruled out and the evidence of identification must be scrutinized with great caution.
(viii) Mere presence in alleged unlawful assembly is not sufficient to attract liability under Section 149 of the I.P.C., unless participation and common object are clearly established.
(ix) The appellants, so to say, the entire defence did not get any opportunity to cross-examine the Investigating Officer, causing serious prejudice to them.
(x) Last but not the least, when the prosecution case itself alleges persons of a mob consisting of about 50-60 person, in such circumstances, the identification of individual accused persons becomes inherently doubtful unless supported by clear and consistent evidence. The so called eye- witnesses were consistent in saying that they took shelter inside the Kothari / Kothi in the house of Ulfat Miyan. It is submitted that Kothari or Kothi is a small store room used for Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 77/142 storing food grains and generally there is no window or any other weapon except a small place of entry and exit to keep the food grains, to keep them immune from getting rotten or infected by insects. Therefore, it was not possible for the so called eye-witnesses to see the incident from inside the Kothari or Kothi.
Arguments on behalf of Chhotey Kumhar (Cr. Appeal (D.B.) No. 1124 of 2018) : -
98. In addition to the general argument as stated above, the learned Advocate on behalf of the above-named appellant states that the prosecution relied upon heavily on the dying declaration of Ishrat Begum, which was recorded by P.W. 29, Hardev Prasad, Judicial Magistrate, Biharsharif on 2nd of May, 1981. The said dying declaration was marked as Exhibit-7 during trial of the case. In the said dying declaration, it was stated by the deceased: -
मे रा नाम इशरत है . मै मोहममद हाशशम की पु त्री हं ू. मे रा घर अलीनगर है . मु झे रामशकशोर लकडहारा के बे टा, पशडएशनया के बे टा, अं गनू साव का पोतन, पटवा, कुमहार, एक राजपूत जो रामे शवर के यहां बीडी बनता है , गोर फुलली का बे टा, दुसाध सब मोहलला का आया और मे रे घर मे आग लगा शदया तथा खपडा नोचने लगा. सब शमलकर तलवार और छुडा से मु झे मारा और कहा शक जयादा कुछ Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 78/142 करोगी तो बम से मार दे गे . मे री मां को भी उन लोगो ने मार शदया.
मे री बहन, चाची, यूनुस के घरवाली को भी मारा. राम शकशोर फटफशटया चलता है . उहे हुकम शदया था.
99. Thus, it is pointed out by the learned Advocate on behalf of the above-named appellant, that deceased, Ishrat did not take the name of the appellant as one of her assailants. Learned counsel for the appellant also submits that the Medical Officer, P.W. 1, who conducted post-mortem examination over the dead-body of Ishrat, found as many as 8 sharp cutting injuries on her body. According to report, one incised wound of bone rub on the head; incised wound on the right side of the face causing fracture of mandible; incised wound in orbital cavities; and incised wound in abdomen of the deceased causing puncture of abdominal cavity, were sufficient to cause death of Ishrat. The Medical Officer during cross-examination also opined that he found ecchymosis in the brain matter of Ishrat. He also opined that ecchymosis appears in brain matter within two hours of receiving the injury. In case of the deceased, there was ecchymosis in brain matter due to rupture of blood vessels in the brain. As a result of ecchymosis, memory, ability to speak and consciousness of the injured is effected. In view of such expert opinion by the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 79/142 Medical Officer, it is highly questionable as to whether Ishrat was in proper physical and mental ability to make a dying declaration on the next date of the occurrence before the learned SDJM, Biharsharif.
100. Reliance was placed by the learned Advocate on behalf of the above-named appellant in case of Ganesh Bhavan Patel & Anr. v. State of Maharashtra, reported in AIR 1979 SC 135, wherein the Hon'ble Supreme Court observed that delay in recording the statement of eye- witnesses may amount to serious infirmities in the prosecution case.
101. Again, in Govind Mandavi v. State of Chattisgarh, reported in 2025 INSC 1399, the Hon'ble Apex Court was pleased to set aside the conviction based upon the evidence of a woman witness who provided information to the informant about the occurrence without making any allegation against the convict due to which the name of the convict was not incorporated in the F.I.R. Subsequently, after four days of the occurrence, her statement under Section 161 Cr.P.C. was recorded by the Investigating Officer and for the first time, the allegation was levelled against the convict.
102. Factual matrix of Govind Mandavi (supra) is Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 80/142 not similar to that of the present case. The present case depicted an incident of violent communal riot where the people of Hindi community unleashed terror in "Mohalla" of Muslim people. As many as 9 persons were murdered. Many others are till unnoticed and untraceable. Good number of people were injured. The Police Authority, though posted in the same village in an outpost, did not initially come in rescue of the victims. Tension prevailed for about four days after the incident. In such circumstances, it is obvious, prompt investigation was halted. Administration might have been busy for the settlement of the victims. Under such circumstances, delay caused by the Investigating Officer to record the statement of witnesses under Section 161 of the Cr.P.C. cannot be held to be fatal for the prosecution.
103. The learned Advocate appearing on behalf of the appellant further submits that the Trial Court relied on the evidence of P.W. 10 only to convict the appellant. While convicting the appellant, the Trial Court did not consider the evidence against the accused Raj Kishore Sao, practically under whose leadership, the alleged incident took place. The Trial Court in its judgement clearly observed "Admittedly there is rivalry regarding religious fought between RSS and Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 81/142 Muslim Community, hence every possibility of false implication of some of the accused cannot be ignored."
104. In support of his argument, he refers to the decision of Javed Shaukat Ali Kureshi v. State of Gujarat, reported in 2023 AIR (SC) 4444. In the said decision, it was held by the Hon'ble Supreme Court that same evidence of one or two witnesses on the point of incident cannot be used to convict one accused and again to acquit another. The appellant stands on the same footing as that of Raj Kishore Sao. Therefore, he was also entitled to be benefited by an order of acquittal.
Arguments on behalf of Kisto Patwa @ Kistu Ram and Ajay Singh (Criminal Appeal (DB) No. 1063 of 2018) : -
105. Learned Advocate on behalf of the above- named appellants submits that the above-named appellants were not named in the F.I.R.. They participated on the basis of their identification in the TI Parade by P.W. 15, P.W. 16 and P.W. 21.
106. The learned Advocate on behalf of the appellants took us to paragraph nos. 39 to 41 of the impugned judgement and submits that Kisto Patwa and Ajay Singh were Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 82/142 held guilty only on the basis of their identification in TI Parade and the Trial Court also believed the statement of witnesses, who identified the above-named appellants about their role in the incident attributed against them.
107. It is submitted by the learned Advocate appearing on behalf of the appellants that identification in TI Parade by the witnesses and description about their overt act to the learned Magistrate during TI Parade are not substantive pieces of evidence. It is no longer res integra that TI Parade is held only in the aid of investigation to ascertain as to whether the investigation was being proceeded in right direction or not. Identification of suspects in the TI Parade acts as a corroborative piece of evidence when the same witness identifies the accused during trial and makes statement on oath regarding his role in the commission of offence.
108. In the instant case, though the witnesses were identified by some of the eye-witnesses, there is no consistency in evidence in respect of their role attributed against them. They were also not named in the F.I.R.. Even they were not named by the deceased in the dying declaration.
109. The learned Advocate on behalf of the appellants also submits that as per the statement of witnesses, Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 83/142 they took shelter in the house of Ulfat Miyan, when the house of Mohammad Miyan was set on fire. Some of them broke a hole in the common wall of Mohammad Miyan and Ulfat Miyan. Tormented victims went to the house of Ulfat Miyan through the said hole and took shelter in the Kothari/Kothi of Ulfat Miyan. The house of Ulfat Miyan was also set on fire. Surprisingly enough, no person of Mohammaden Community received any burn injury, though both the houses were gutted by fire. This is a strange incident which cannot be believed to be true.
110. The learned Advocate on behalf of the appellants also raised doubt about the mode and manner of holding TI Parade of the suspects.
111. With regard to delay in conducting TI Parade, the learned Advocate on behalf of the appellants refers to a decision of the Hon'ble Supreme Court in Sheikh Hasib @ Tabarak v. the State of Bihar, reported in 1972 4 SCC 773. It is observed in the aforesaid decision that identification parades are ordinarily held at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject-matter of alleged offence or the persons who are alleged to have been concerned Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 84/142 in the offence. Such tests or parades belong to the investigation stage and they serve to provide the investigating authority with material to assure themselves if the investigation is proceeding on right lines. It is accordingly desirable that such test parades are held at the earliest possible opportunity. Early opportunity to identify also tends to minimise the chances of the memory of the identifying witnesses fading away by reason of long lapse of time. But much more vital factor in determining the value of such identification parades is the effectiveness of the precautions taken by those responsible for holding them against the identifying witness having an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned.
112. A careful perusal of the aforesaid observation tends to lead us to hold that if delay in holding the Test Identification Parade is couched with improper activity of the Investigating Officer by showing and identifying the suspects with the witness before identification parade or failure on the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 85/142 part of the learned Judicial Magistrate to take statutory precautions while holding the test, such delay will go against the prosecution, but delay, per se, is not a ground to suspect identification parade. In the absence of cross-examination and suggestions that were required to put to the identifying witnesses and the learned Judicial Magistrate that the suspects were identified with the witnesses to be conducting the TI Parade or the TI Parade was conducted without following the statutory procedure, solitary submission that the Test Identification Parade ought not to be considered only for delay in holding such identification parade, is untenable and cannot be considered.
Arguments on behalf of Nand Lal Yadav (Cr. Appeal (DB) No. 1030 of 2018) : -
113. The learned Advocate on behalf of the above- named appellant has adopted the submissions made by the learned counsels on behalf of other appellants. It is also submitted by him that no specific role was attributed against Nand Lal Yadav by the so called witnesses.
Submissions on behalf of Sunil Kumar @ Sunaina Sao @ Sunil (Criminal Appeal (DB) No. 979 of 2018):-
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 86/142
114. The learned counsel appearing on behalf of the appellant submits that the appellant is not named in the F.I.R. He was implicated in this case and subsequently convicted only on the basis of his identification in TI Parade and subsequently identification of some of the witnesses in Court, attributing certain overt act against him. It is also submitted by him that as per the prosecution case, one Md. Hasim (P.W. 14) reported for the first time to the Police Officer posted in the outpost of village-Alinagar that fire broke out in Alinagar Mohalla. Police did not take any action on such report. Subsequently, Md. Hanif (P.W. 3), Md. Aziz and Madrasi Baba of main Dargah again went to the outpost and requested police to take appropriate step to save the residents of Alinagar. Then, Police went to Alinagar.
115. It is contended on behalf of the accused Sunil Kumar that the prosecution suppressed the initial statement, on the basis of which police went to the place of occurrence and took step to prevent further commission of cognizable offence. According to the learned Advocate, the first information by the police was suppressed by the prosecution.
116. It is also submitted by him that the statement made by P.W. 14 (informant) is nothing but a statement under Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 87/142 Section 161 of the Cr.P.C. and such statement cannot be treated as statement under Section 154.
117. In support of his contention, he refers to an unreported judgement of the Hon'ble Supreme Court in State of M.P. v. Ratan Singh & Ors., Criminal Appeal No. 1034 of 2013, decided on 5th of September, 2018. In paragraph no. 5 of the judgement, the Hon'ble Supreme Court observed: -
"5. ...... It is a clear case of suppression of earliest information which was of vital importance. As emphasised by this Court in Amitbhai Anil Chandra Shah v. Central Bureau of Investigation, (2013) 6 SCC 348, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154, and consequently there cannot be a second F.I.R. Rather it is absurd or ridiculous to call such information as second F.I.R. In the case of Subramaniam v. State of T.N., (2009) 14 SCC 415, this Court observed that if an F.I.R. is filed after recording the statement of the witnesses, such second information would be inadmissible in evidence. Moreover, in Nallabothu Ramulu v. State of A.P., (2014) 12 SCC 261, the Court was of the view that the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 88/142 non-treatment of statements of injured witnesses as the first information cast doubt on the prosecution version."
118. The learned Advocate further submits that the statement of Md. Hasim (P.W. 14), which was treated as F.I.R. was recorded on 1st of May, 1981 at 08.00 P.M. in Bihar Sadar Hospital. The prosecution suppressed the fact altogether that Md. Hasim went to the outpost of his village situated by the side of main Dargah when he found smoke coming out from Alingar locality. No statement of Md. Hasim was recorded at that time by the on-duty police officer in the outpost. On the contrary, Fard Beyan was recorded at Bihar Sadar Hospital after a lapse of about 5/6 hours. The Investigating Authority suppressed the fact that the informant went to the outpost and narrated the incident to the on-duty police officer, rather the Investigating Officer stated that the statement of Md. Hasim in the hospital was the first statement which was treated as F.I.R.. Suppression of the initial statement renders the entire prosecution case suspect.
119. With regard to the identification of the accused, the learned Advocate appearing on behalf of the appellant refers to another decision of the Hon'ble Supreme Court in Prakash v. State of Karnataka, reported in 2014 INSC 271. He especially Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 89/142 refers to paragraph nos. 26 to 33 of the aforesaid report.
Arguments advanced by the learned Amicus Curiae, namely, Mr. Ravi Shankar Roy, on behalf of Ishwari Singh (Cr. Appeal (DB) No. 1098 of 2018) and Laxman Ram (Cr. Appeal (DB) No. 1067 of 2018): -
120. The learned Amicus Curiae has adopted the submissions made by the learned counsels for the other accused persons. It is submitted by him that the appellants are victims of communal enmity and they were wrongly implicated in the case. No overt act was attributed against the appellants. They are in custody for a pretty long time. Therefore, the appellants should be acquitted.
Conclusion: -
121. We have elaborately appreciated the evidence hereinbefore. There are certain important circumstances discernible from the Trial Court record. Though the Trial Court record is very old, we have given patient perusal of each and every page of the Trial Court record.
122. It is needless to say that the deposition of a person consists of three parts, examination in chief, cross- examination and re-examination if any, and further cross examination. All the witnesses on behalf of the prosecution were Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 90/142 elaborately cross-examined. No suggestion was put to any of the witnesses in the form of denial that no incident of communal riot took place on 1st of May, 1981 at about 12.00 to 12.30 p.m. at Alinagar Mohalla. Therefore, the defence has also admitted that there was communal riot between two communities on 1st of May, 1981 at Alingar, The accused persons also did not deny that during such communal riot, 9 persons, mostly women and little children, including a 6 days old baby were killed. Some old and young persons of Mohammaden Community were missing and untraceable till date from the date of occurrence. When they are not found within seven years of their disappearance, it would be held that they also received the same fate as that of the deceased. It is found from the evidence of P.W. 3, P.W. 14 as well as other witnesses, who were going to offer Jumma Namaz to main Dargah that they saw assembly of people of another community gradually increasing and they were saying amongst themselves that the entire Mohalla of Mohammaden Community would be surrounded by them so that nobody could leave from the Mohalla. Hearing this, they became afraid and went away towards Dargah. This form of unlawful assembly was not challenged anywhere by the defence in course of cross-examination of witnesses. Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 91/142
123. Section 141 defines unlawful assembly in the following words: -
"141. Unlawful assembly. - An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is-
First. - To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State), or any public servant in the exercise of the lawful power of such public servant; or Second. - To resist the execution of any law, or of any legal process; or Third. - To commit any mischief or criminal trespass, or other offence; or Fourth. - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right;
or Fifth. - By means of criminal Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 92/142 force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation. - An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."
124. A plain reading of the provision contained in Section 141 of the I.P.C. states that the important ingredients of the unlawful assembly are the number of persons forming it, i.e., five and their common object. Common object of the person composing that assembly would be formed on the spur of the moment and does not require prior deliberation. The code of conduct adopted by such assembly; their behaviour before, during and after the incident; and the arms carried by them, are a few basic and relevant factors to determine the common object.
125. In the instant case, evidence of P.W. 3, P.W. 14 and others who are not even eye-witnesses clearly proves formation of unlawful assembly by members of Hindu Community armed with deadly weapons, like, guns, rifles, pistols, Bhala, sword and similar others declaring that not a single person of Mohammaden Community would be allowed to Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 93/142 leave the place, clearly suggests formation of unlawful assembly and common object of the assembly.
126. It is found from the record that appellant Ishwari Singh was identified in Court by P.W. 15, P.W. 16 and P.W. 21. Appellant Sunil Kumar and Nand Lal Yadav were identified by P.W. 6 and P.W. 13. Appellant Kisto Patwa and Ajay Singh were identified by P.W. 16 as well as deceased Ishrat in her dying declaration. Appellant Laxman Ram was identified by P.W. 13, P.W. 16 and P.W. 21. Appellant Chhotey Kumhar was identified by P.W. 4, P.W. 6, P.W. 10 and P.W. 17 during trial of the case.
127. The witnesses who identified the above-named appellants clearly state the specific role of the appellants in the offence.
128. In Nallamsetty Yanadaiah & Ors. v. State of Andhra Pradesh, reported in AIR 1993 SC 1175, it is held by the Hon'ble Supreme Court that for the purpose of application of Section 149, I.P.C., the prosecution has to prove the presence and participation in an unlawful assembly. The presence of these accused was mentioned consistently by all the witnesses. In a case of this nature, particularly, when the occurrence has taken place in a village, several villagers might have gathered and, therefore, the further test is whether the participation has been Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 94/142 proved so that their being members of an unlawful assembly can be accepted safely. In that view of the matter, the Courts below accepted the evidence of the injured witnesses who consistently deposed that these accused who were convicted under S. 302/149, I.P.C. were present and also participated in the occurrence by setting the house of Mohammad Miyan and Ulfat Miyan on fire, looting of household articles and jewelleries from the women of the said community and causing indiscriminate murder of more than 9 persons and injuries to number of persons. Therefore, the evidence on record is more than satisfactory against the accused persons / appellants that they had common object to commit the above offence and they could be convicted under Section 302 of the I.P.C. with the aid of Section 149.
129. It is needless to say that in order to fasten vicarious responsibility on any member of an unlawful assembly, the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 95/142 himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or the common object is/are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposed a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object, and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 96/142 prosecution of any one or more of the five objects mentioned in Section 141 I.P.C. will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149 1.P.C.
130. A common question was raised by all the learned counsels appearing on behalf of the accused persons that as the victims were compelled to take shelter inside a Kothari or Kothi, which is a small dark space made of mud wall without any window, the witnesses could not have been any opportunity to identify the accused persons.
131. We are not in a position to accept such argument because it is in the evidence, that, women and the children were dragged from inside and murdered in the open verandah of the house of Ulfat Miyan. The Executive Magistrate who visited the place of occurrence found one dead body of a woman lying outside the door of Ulfat Miyan. When the victims were dragged from the Kothari or Kothi to the Varandah, the survivors had automatic opportunity to see the perpetrators of offence. Thus, we are satisfied that the identification of the accused persons with their specific role in the commission of offence.
132. Another question was raised very seriously by the defence that proper procedure was not maintained while Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 97/142 conducting the TI Parade. This issued cannot be argued without specific cross-examination to the learned Magistrate. No cross- examination was made to the learned SDJM (P.W. 25) as regards the mode and manner of the test identification parade. Moreover, we have already stated that test identification parade is held during the time of investigation and the basic purpose of the test identification parade is to ascertain as to whether the investigation is proceeding in right direction as against the suspects, who have been apprehended in an offence. TI parade operates as a corroborative evidence as it is held by the learned Judicial Magistrate free from all embellishment. Now TI parade was held by the learned SDJM, Biharsharif of 26 suspects. No question was asked in course of cross-examination of the learned SDJM that TI parade was not properly held or that the suspects were previously identified with the witnesses or that the procedure was not maintained. Even during the TI parade, none of the suspects made any complaint to the learned SDJM that they were shown to the witnesses prior to TI parade.
133. Under such circumstances, we do not find any reason to disbelieve the identification of the witnesses in TI parade. However, at the same time, we are of the view that we do not want to rely on identification of the accused in TI parade. Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 98/142 We rely on the substantive piece of evidence of identification by the witnesses in Court in the following manner: -
Witness Vantage Point Perpetrators Specifically Identified PW-4 Md. Roof of his ownRajkishor Sao (gun), Panna Lal Salim (spear), Rameshwar Sav Patwa toilet (hidden while Uddin (sword), Surendra Sharma @ mob looted andShital Sharma (lathi), Chhote Kumhar (sword), Billu Pandey burnt his house) (pistol & sword), Laxman Patwa Para 2 (axe), Ramnath Patwa (sword), Vishwanath Patwa (saif) -
leading the mob
PW-6 Md. Inside UlfatRaj Kishore Sao (giving orders),
Aftaab Sunil Sao (bhala, assaulting &
Miyan's house
Alam killing), Gillu Pandey (sword,
(northern room /assaulting women), Umesh
Thathera (assaulting & killing
courtyard area after
women), Radhey Pandit @
moving through theRadhe Kumhar (bhala), Chhote Kumhar (sword, killed 6-day-old wall hole) baby) Para 1 PW-10 Inside MohammadSunil (bhala, killed Saibunnisha, Md. Yunus Ishrat, Kaniza & 4-month-old Miyan's house, in baby), Radhey Kumhar (bhala, the south-westkilled Asgari), Chhote Kumhar (sword, killed 6-day-old baby), corner, behind the Lakhan Kumhar (sword), wall (hid in a roomSurendra Sharma (lathi), Nathun Chamar (bhala & bomb) and watched the women & children being dragged out) Para 1 & 6 PW-13 Inside UlfatRajkishore Sao (orders), Panna Jamila Lal (orders), Gilu Pandey (sword, Miyan's house Khatoon dragging & assaulting), Umesh (corner room - theThathera (dragging & killing), Sadhu Sao (bhala, killing one whose wall children & ladies), Nandu Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 99/142 broke, then pulledPandey (garasa), Shree Sao (garasa), Rameshwar Patwa outside after door (sword), Bisheshwar Sonar, Ram broken) Chandra, Naresh Gop, Suresh Gop, Bijay (pistol), Laxman & Para 1 & 9 Vishwanath (garasa) PW-15 Inside UlfatRajkishore Sao (gun, giving Samima orders), Panna Lal (spear, giving Miyan's house Khatun orders), Gilu Pandey (dragged (small room, thenher from small room to verandah and assaulted) the mob took them to a big room and then to the verandah, personally dragged) Para 1 PW-16 Hid in a room nextRajkishore Sao (orders), Gilu Md. Pandey & Umesh Thathera to a Kothi (Para 2) Salauddin (dragging & killing women), Behind a kothiNaresh Ravidas (dragged & killed his wife), Ajay Singh (Para 6) (dragging women & looting) + Both in Ulfat long list of others with weapons Miyan's house PW-17 Her ownRajkishore Sao (gun, orders), Mostt. Lakhan Sao (pistol), Panna Lal (Mohammad Sarifan (spear, orders), Daso Pawaria Miyan's) house,(pistol), Uday Sao (gun), Gilu Pandit (sword, killing), Sadhu watching through Singh (spear, killing & robbing), the "sendh" (hole)Chandar Patwa, Laxman Patwa, Naresh Gwala, Chhote Kumhar into Ulfat Miyan's house Para 1 PW-18 Inside her ownGilu Kumhar, Chandra Patwa s/o Jarina Chedi Patwa, Pandit Thathera + (Ulfat Miyan's) large number from Patwa Toli house (Bharat, Durga, Rajendra, Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 100/142 Para 1 Dinesh, Mohan, Rameshwar, Jagarnath, Lakshman, Kesto Patwa), Ajay Singh, Brahmdev Sao, Raj Kishore Sao PW-21 In a room behind Rajkishore Sao (gun, orders), Md. the kothi in Ulfat Gilu Pandey (sword), Sadhu Samim Miyan's house Singh & Umesh Thathera (spears) PW-22 Inside Ulfat Rajkishore Sao (gun), Gilu Anwari Miyan's house Pandey, Chandra Patwa s/o Chedi (northern room) Patwa, Umesh Thathera, Vishwanath, Nandu (Suresh Gowala) + Dinesh Ram & Ishwari Singh in TIP
134. Another issue was raised by the defence to the effect that when the houses of Mohammad Miyan and Ulfat Miyan was attacked by a mob of about 50-60 persons, it was not possible for the witnesses to identify the appellants.
135. In Lokeman Shah v. State of West Bengal, reported in 2001 5 SCC 235, one Vinod Kumar Mehta, a 35 years old IPS officer was then the Deputy Commissioner of Police (DCP) at the Port Division, Calcutta. The Garden Reach Police Station falls within the territorial limits of his domain and, hence, he set out to quell the riots, escorted by his security guard Murkhtar Ali (A Police Constable) besides some other Police personnel. When they felt that the infuriated rioters were thirsting for victims, they thought it safe to go into a mosque expecting asylum. But the Imam of the mosque was not Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 101/142 disposed to afford a shelter to such people. So they went out of the mosque. The security guard Mukhtar Ali ran into the house of a private individual while the Deputy Commissioner ran into the house of a Police Constable (PW-21, Abdul Latif Khan). As the rioters were chasing him, PW-24, Md. Hadish Khan, son of PW-21, Abdul Latif Khan gave asylum to the Deputy Commissioner in his house. The rioters spotted the fleeing cops. The Deputy Commissioner in order to save himself from the fury of the chasing mob got into the bathroom of the house of PW-21 but a few of the murderers pursued him up to that place and caught him and killed him.
136. Under such factual backdrop, it was held by the Hon'ble Supreme Court that the positional importance of PW-24 (Md. Hadish Khan) as a witness for the occurrence is significant. The incident happened in his own house and in his presence. He would, thus, be one of the most natural witnesses to speak about what happened in front of him. There was no cause for PW-24 to have any bias against appellant-Naso for falsely implicating him nor was there any difficulty for PW-24 to identify Naso as one among the assailants particularly when the witness ascribed a specific serious role to that accused. His evidence has secured corroboration from the testimony of his Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 102/142 father PW-21, Abdul Latif who said that his son told him that Deputy Commissioner of Police took shelter in his house and that appellant-Naso and some other persons (whose names were also mentioned) assaulted him. Such evidence of PW-21 is admissible under S. 157 of the Evidence Act as a corroborative material.
137. The same principle is applicable in the instant case. It is true that a mob of about 50-60 persons attacked Mohammaden Community of Alinagar Mohalla, but it is not disputed that both the appellants and the witnesses used to live in the same village for long time. They were known to each other. In case of mob attack, it is not expected that all 50-60 persons will commit the same overt act. But the mere presence in the unlawful assembly with sharing of common object is enough to pass an order of conviction with the aid of vicarious liability under Section 149 of the I.P.C.
138. Learned counsels for all the appellants on the same tune echoed that during trial, the Investigating Officer was not examined.
139. It appears from the record that the Investigating Officer was examined in chief as P.W. 31, but his presence could not be ascertained during cross-examination. Therefore, Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 103/142 evidence of P.W. 31 cannot be taken into consideration without he being cross-examined.
140. At this stage, a question naturally comes for consideration as to the effect of non-examination of the Investigating Officer in a criminal trial.
141. It is no longer res integra that Investigating Officer is a formal witness. However, his evidence is necessary for affirmation of contradiction in the statement of witnesses recorded by him under Section 161 of the Cr.P.C. and the statement given by such witnesses during trial on oath.
142. Section 161 of the Cr.P.C. empowers any Police Officer making investigation under Chapter-XII of the Code to examine orally any person supposed to be acquainted with the circumstances of the case. Sub-section (iii) of Section 161 states that the Investigating Officer may record the statement of a witness in writing. But no such statement shall be signed by the witness or that such statement cannot be used as evidence except for contradiction. This provision is laid down in Section 162 of the Cr.P.C., which runs thus: -
"162. Statements to police not to be signed: Use of statements in evidence. -
(1) No statement made by any Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 104/142 person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 105/142 falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.
Explanation. - An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
143. A plain reading of the above provision, especially the proviso to Section 162(1) of the Cr.P.C. makes it abundantly clear that when any witness is called for prosecution in any enquiry or trial, whose statement has been recorded into writing by the Investigating Officer, any part of his statement, if duly proved, may be used by the accused and with the permission of the Court, by the prosecution to contradict such witness in the manner provided by Section 145 of the Evidence Act and when part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 106/142
144. This provision seems to us, creates a lack of understanding as to how a contradiction is to be taken to the minds of most of the Judicial Officers in district judiciary. We feel it necessary to state that if there remain contradiction in the evidence of a witness stated on oath and his earlier version recorded by an Investigating Officer under Section 161 of the Cr.P.C., such contradiction can only be taken by way of suggestion, forming the question in following manner: -
"I put it to you that you have not stated to the IO ............."
145. Whatever may be the answer of the witness, either affirmative or negative, is required to be corroborated by the cross-examining Advocate with the IO bringing his attention to the statement recorded under Section 161 of the Cr.P.C. by him and asking the question as to whether the particular witness had stated the fact contradicted to him while making statement under Section 161 of the Cr.P.C. or not. The Court is bound to record the answer of the IO, then only taking contradiction between the earlier statement of the witness and his statement on oath subsequently in oath, will be held to be complete. So the evidence of Investigating Officer is necessary when there remains need for taking affirmation or negation of contradictory Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 107/142 statement made by a witness.
146. In the instant case, no contradiction was taken by the cross-examining Advocate in respect of the previous statement made by the eye-witnesses and other witnesses to the occurrence during their cross-examination. Therefore, cross- examination of Investigating Officer was not necessary and under such circumstances, non-examination of the IO is also not fatal.
147. In Behari Prasad & Ors. v. State of Bihar, reported in (1996) 2 SCC 317, the Hon'ble Supreme Court found while assessing the facts of the case that the involvement of the accused in committing the murder was clearly established by evidences of the eye-witnesses. Such evidences are in conformity with the case made out in F.I.R. and also with the medical evidence. Hence, for non-examination of the Investigating Officer, the prosecution case should not fail. The Hon'ble Supreme Court was also pleased to indicate that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross- examine the witnesses for the prosecution and to bring out the contradictions in their statement before the police. A case of Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 108/142 prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straight jacket formula should be laid down that non-examination of the Investigating Officer per se vitiates a criminal trial.
148. In the instant case, in view of the fact that no contradiction was taken from any of the witnesses between their earlier statement recorded under Section 161 of the Cr.P.C. and the subsequent statement recorded by the Court, question of taking contradiction by cross-examining the Investigating Officer does not arise.
149. We therefore, do not find any merit in the instant appeal to turn down the judgement passed by the Trial Court.
150. Accordingly, all the appeals are dismissed on contest.
151. However, there shall be no order as to costs.
152. Before we part with, we must record a disturbing feature appearing in the Trial Court judgement. In the F.I.R., it was stated that the entire incident was committed by a riotous mob under the leadership of one Raj Kishore Sao. Raj Kishore Sao faced trial along with the appellants. However, the Trial Court acquitted him, stating, inter alia, that so far as the involvement of accused Raj Kishore Sao & Panna Lal is Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 109/142 concerned, the prosecution witnesses have stated in their deposition that Raj Kishore Sao armed with a gun & Panna Lal with a bhala were ordering to assault & kill them, and except this allegation, no other overt act was done by them. The learned counsel for defence has submitted that Raj Kishore Sao was Ward Commissioner as well as President of R.S.S. of Ali Nagar Shakha. It is an admitted fact that prior to this occurrence, there was an occurrence of demolishing of a Kabragah in which Raj Kishore Sao was also one of the accused, but the witness has denied the suggestion of defence that he has been falsely implicated in this case due to previous enmity. So enmity has been admitted between accused Raj Kishore Sao & prosecution party. The learned counsel for defence has submitted that it is well known to all that there is a wide difference on the point of religious thought, between R.S.S. & Muslim community. P.W. 14 - Md. Hasim has admitted in para 7 of his cross examination that "शदलली, लखनउ, अलीगढ और पटना आशद सथानो के मु सलमान ने ता लोग आए हुए थे " This version of witness clearly shows that Muslim leaders were also involved in this case with a view to make the case as per their desire, and in such circumstance, it is highly probable that the leader of R.S.S., namely Raj Kishore Sao has been implicated falsely and thereby none of the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 110/142 witnesses have dared to say about any overt act by him except that Raj Kishore Sao & Panna Lal were ordering to assault & kill. The accused Raj Kishore Sao has also filed document to show enmity as previous case was lodged against him prior to the occurrence, relating to demolishing a grave yard, which is admitted by the prosecution witnesses. As, per these material evidence on record as discussed above, I do not find that the prosecution has falsely implicated Raj Kishore Sao & Panna Lal in this case.
153. The learned Trial Judge recorded an order of acquittal of Raj Kishore Sao and Panna Lal, though all the witnesses stated unequivocally about the presence of the above- named two persons respectively with a gun and bhala in their hands and directing other people to assault and kill the members of Mohammaden community. They were acquitted on the ground that Raj Kishore Sao was made accused in another case, relating to taking over forcibly possession of a grave-yard and there were previous enmity between Raj Kishore Sao and the witnesses. Secondly, Raj Kishore Sao was a member of RSS and after the incident of communal riot, many leaders of Mohammadan Community came to Alinagar from Delhi, Lucknow, Aligarh, Patna and other places of the country. Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 111/142 Therefore, Raj Kishore Sao and Panna Lal were falsely made accused in this case due to political and ideological rivalry. The learned Trial Judge forgot for the time being that he was trying a criminal case where there no role of preponderance of probability is applicable but he recorded an order of acquittal in favour of Raj Kishore Sao and Panna Lal on the ground that it is highly probable that the leader of RSS namely, Raj Kishore Sao has been implicated falsely.
154. We are not amused but ashamed by the decision when almost all the witnesses stated that Raj Kishore Sao led the mob to commit the massacre, how was he set at free. We are not unmindful to note that the impugned judgement was delivered on 27th July, 2018, i.e., 37 years of the incident. Political scenario of the country and the State have changed altogether. At the time of occurrence, the offenders who were religiously divided and politically polarized were treated not with the same eyes as of these days. Today religion has become the basis of politics. People having strong religious base become political leaders. Probably due to such reason being guided by the political executive, in spite of having enough evidence, people like Raj Kishore Sao and Panna Lal were acquitted. The State did not file any appeal against the order of acquittal of the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 112/142 above-named two persons. The said two persons are also not before us so that we can re-appreciate the evidence against them.
155. Very recently, the Hon'ble Supreme Court in the case of Nagarajan v. State of Tamil Nadu, reported in (2025) 8 SCC 331, held that under Section 401 of the Cr.P.C., the High Court is not authorised to convert the findings of acquittal into one of conviction by exercise of revisional jurisdiction. This salutary principle can be extended to also mean that the High Court cannot enhance the sentence imposed by a trial court on conviction in an appeal filed by the accused/convict. Thus, any appeal filed by the accused seeking setting aside of the conviction of sentence, the High Court cannot exercise its revisional powers and while affirming the conviction direct for enhancement of sentence, when actually appeal could have been filed by the State, complainant or the victim but not filed. The Hon'ble Supreme Court further held that even if an opportunity of hearing is given to such an accused/convict, the High Court can not exercise its revisional jurisdiction under Section 401 CrPC while exercising its appellate jurisdiction in an appeal filed by the accused/convict in the High Court. All that the High Court can do is to set aside the judgment of conviction and Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 113/142 sentence and acquit the accused, or while doing so, order for a retrial, or in the alternative, while maintaining the conviction, reduce the sentence. Thus, in an appeal filed only by the accused/convict, the High Court cannot suo motu exercise its revisional jurisdiction and enhance the sentence against the accused while maintaining the conviction.
156. The Hon'ble Supreme Court held as hereinabove, that in an appeal where Trial Court convicted the appellant under Section 354 and 448 and acquitted him of charge under Section 306 of the I.P.C. Order of acquittal was not challenged by the State. However, upon prima facie appraisal of the Trial Court's reasoning, the High Court opined necessity of further examination of acquittal under Section 306 I.P.C. Resultantly, in suo motu revision, the High Court dismissed the appeal of the appellant and convicted him under Sections 306 and 448 of the I.P.C.
157. In Mahabir & Ors. v. State of Haryana, reported in 2025 SCC OnLine SC 184, the Hon'ble Supreme Court in paragraph nos. 39 to 47 held as hereunder: -
"39. This Court in Bindeshwari Prasad Singh v. State of Bihar (now Jharkhand) reported in (2002) 6 SCC 650, laid down that there is a limit on the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 114/142 powers of the High Court as a Revisional Court, prohibiting it from converting a finding of acquittal into one of conviction. Para 12 reads thus:-
"12. We have carefully considered the material on record and we are satisfied that the High Court was not justified in reappreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code of Criminal Procedure. Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a retrial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 115/142 revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party. (See D. Stephens v. Nosibolla [1951 SCC 184 1951 SCC 184: AIR 1951 SC 196 1951 Cri LJ 5101. K. Chinnaswamy Reddy v. State of A.P. [AIR 1962 SC 1788:1963) 1 Cri L) 8J. Akalu Ahir v. Ramdeo Ram [(1973) 2 SCC 583: 1973 SCC (Cri) 903), Pakalapati Narayana Gajapathi Raju v Bonapalli Peda Appadu ((1975) 4 SCC 477: 1975 SCC (Cri) 543: AIR 1975 SC 1854] and Mahendra Pratap Singh v. Sarju Singh (AIR 1968 SC 707: 1968 Cri Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 116/142 LJ 665].)"
40. This Court in Joseph Stephen v. Santhanasamy reported in (2022) 13 SCC 115, laid down that on a plain reading of sub-section (3) of Section 401 CrPC, it has to be held that sub-
section (3) of Section 401 CrPC prohibits/bars the High Court to convert a finding of acquittal into one of conviction. Para 10 reads thus:-
10. Applying the law laid down by this Court in the aforesaid decisions and on a plain reading of sub-section (3) of Section 401 CrPC, it has to be held that sub-section (3) of Section 401 CrPC prohibits/bars the High Court to convert a finding of acquittal into one of conviction. Though and as observed hereinabove, the High Court has revisional power to examine whether there is manifest error of law or procedure, etc. however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial court and/or the first appellate court, as the case may be."
41. This Court in Joseph Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 117/142 Stephen (supra), holds that first, the High Court has to pass a judicial order to treat an application for revision as petition of appeal. The High Court has to pass a judicial order because sub-section (5) of Section 401 CrPC provides that if the High Court is satisfied that such revision application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do. While treating the application for revision and to deal with the same as a petition of appeal, the High Court has to record the satisfaction as provided under sub-section (5) of Section 401 CrPC. Para 14 reads thus:-
14. Now so far as the power to be exercised by the High Court under sub-section (5) of Section 401 CrPC, namely, the High Court may treat the application for revision as petition of appeal and deal with the same accordingly is concerned, firstly the High Court has to pass a judicial order to treat the application for revision as petition of appeal. The High Court has to pass a judicial order because sub-section (5) of Section 401 CrPC provides that if the High Court is satisfied that such revision application was made under the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 118/142 erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do. While treating with the application for revision as petition of appeal and deal with the same accordingly, the High Court has to record the satisfaction as provided under sub-
section (5) of Section 401 CrPC. Therefore, where under the CrPC an appeal lies, but an application for revision has been made to the High Court by any person, the High Court has jurisdiction to treat the application for revision as a petition of appeal and deal with the same accordingly as per sub-
section (5) of Section 401 CrPC, however, subject to the High Court being satisfied that such an application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do and for that purpose the High Court has to pass a judicial order, may be a formal order, to treat the application for revision as a petition of appeal and deal with the same accordingly."
42. This Court in Ganesha v.
Sharanappa reported in (2014) 1 SCC 87, in para 11, clarifies that:
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 119/142 "... Interference with the order of acquittal is called for only in exceptional cases where there is manifest error of law of procedure resulting into miscarriage of justice, and, where the acquittal has been caused by shutting out evidence which otherwise ought to have been considered or where material evidence which clinches the issue has been overlooked. In such exceptional cases, the High Court can set aside an order of acquittal, but it cannot covert it into one of conviction. The only course left to the High Court in such exception cases, is to order retrial.
43. This Court in Santhakumari v. State of Tamil Nadu reported in (2023) 15 SCC 440, laid down that the order passed by the High Court is in the teeth of the provisions of sub-section (2) of Section 401 of the CrPC as interpreted by this Court in Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel reported in (2012) 10 SCC 517. Paras 5 and 6 respectively read thus:-
"5. Having considered the submissions, since it is not in dispute that the proposed accused were not served notice of the revision proceedings, the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 120/142 order passed by the High Court is in the teeth of the provisions of sub-section (2) of Section 401 of the Code as interpreted by this Court in Manharibhai Muljibhai Kakadia [Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517: (2013) 1 SCC (Cri) 218).
6. The decision in Manharibhai Muljibhai Kakadia [Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517:
(2013) 1 SCC (Cri) 218] has also been followed in Bal Manohar Jalan v. Sunil Paswan [Bal Manohar Jalan v. Sunil Paswan, (2014) 9 SCC 640 (2014) 5 SCC (Cri) 256], wherein it was held: (Bal Manohar Jalan case [Bal Manohar Jalan v. Sunil Paswan, (2014) 9 SCC 640 (2014) 5 SCC (Cri) 256], SCC p. 644, para 9) "9. In the present case challenge is laid to the order dated 4-3-
2009 at the instance of the complainant in the revision petition before the High Court and by virtue of Section 401(2) of the Code. the accused mentioned in the first information report get the right of hearing before the Revisional Court Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 121/142 although the impugned order [Sunil Paswan v. State of Bihar, 2011 SCC OnLine Pat 600] therein was passed without their participation. The appellant who is an accused person cannot be deprived of hearing on the face of the express provision contained in Section 401(2) of the Code and on this ground, the impugned order [Sunil Paswan v.
State of Bihar, 2011 SCC OnLine Pat 600] of the High Court is liable to be set aside and the matter has to be remitted.""
44. The decision in Manharibhai Muljibhai (supra) was referred to and relied upon in Bal Manohar Jalan v. Sunil Paswan reported in (2014) 9 SCC 640, wherein it was inter alia, held that "The appellant who is an accused person cannot be deprived of hearing on the face of the express provision contained in Section 401(2) of the Code and on this ground, the impugned order of the High Court is liable to be set aside...".
45. This Court in Nandini Satpathy v. P.L. Dani reported in (1978) 2 SCC 424 held that the right to consult an advocate of choice shall not be denied to any person who is arrested. This does not Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 122/142 mean that persons who are not under arrest or custody can be denied such right. The spirit and ethos of Article 22(1) is that it is fundamental to the rule of law that the service of a lawyer shall be available for consultation to the accused person under circumstances of near custodial interrogation. Moreover, the right against self-incrimination is best practiced & best promoted by conceding to the accused, the right to consult a legal practitioner of his choice. Lawyers' presence is a constitutional claim in some circumstances of our country, and in the context of Article 20(3), is an assurance of awareness and observance of the right to silence.
46. Thus, it is as clear as a noonday that the High Court committed an egregious error in reversing the acquittal and passing an order of conviction in exercise of its revisional jurisdiction and that too without affording any opportunity of hearing to the appellants herein.
47. We could have closed this matter at this stage; however, we would like to explain the position of law in so far as the applicability of sub section (5) Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 123/142 to Section 401 of the CrPC read with the provision to sub section 372 of the CrPC is concerned."
158. In this judgement, the Hon'ble Supreme Court further discussed the cumulative effect of Section 401 and the proviso to Section 372 of the Cr.P.C. where the right to appeal is extended even to the victims. In the instant case, the victim would have filed an appeal, challenging acquittal against Raj Kishore Sao and Panna Lal, but when such steps were also not taken by the victim or the informant, this Court does not have any power to hold otherwise against the appellants.
159. Acceptance of the above ratio laid down by the Hon'ble Supreme Court means only that even against an order that suffers from material perversity, the High Court or the Division Bench of the High Court would not have any power even to direct the acquitted persons to come forward by issuing a notice to plead as to whether the impugned judgement shall not be set aside so far as the above-named persons are concerned on the ground of illegality and perversity.
160. In Nadir Khan v. the State (Delhi Administration) reported in (1975) 2 SCC 406, the Hon'ble Supreme Court held that the High Court is not required to act Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 124/142 in revision merely through a conduit application at the instance of an aggrieved party. The High Court, as an effective instrument for administration of criminal-justice, keeps a constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounded duty to suo motu act where there is flagrant abuse of the law. The character of the offence and the nature of disposal of a particular case by the subordinate court prompt remedial action on the part of the High Court for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for under the new Code. The High Court in a given case of public importance e.g. is now too familiar cases of food adulteration reacts to public concern over the problem and may act suo motu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such offenders. Paragraph 3 and 4 of the above-mentioned judgement are relevant and are quoted below: -
"3. The question raised by the learned counsel in this application is, that the High Court, in revision under Section 401 CrPC, has no jurisdiction or power to enhance the sentence in the absence of an appeal against the inadequacy of sentence under Section 377.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 125/142
4. It is well known and has been ever recognised that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party. The High Court, as an effective instrument for administration of criminal justice, keeps a constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounden duty to suo motu act where there is flagrant abuse of the law. The character of the offence and the nature of disposal of a particular case by the subordinate court prompt remedial action on the part of the High Court for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for under the new Code. The High Court in a given case of public importance e.g. in now too familiar cases of food adulteration, reacts to public concern over the problem and may act suo motu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such offenders. This position was true and extant in the old Code of 1898 and this salutary power has not been denied by Parliament under the new Code by rearrangement of the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 126/142 sections. It is true the new Code has expressly given a right to the State under Section 377 CrPC to appeal against inadequacy of sentence which was not there under the old Code. That however does not exclude revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases. What is an appropriate case has to be left to the discretion of the High Court. This Court will be slow to interfere with exercise of such discretion under Article 136 of the Constitution."
161. In Sahab Singh & Ors. v. State of Haryana, reported in (1990) 2 SCC 385, the appellants were convicted by the Additional Sessions Judge on three counts and sentenced to rigorous imprisonment for one year under Section 148 IPC; for six months under Section 323/149 I.P.C. and imprisonment for life and fine of Rs. 200 under Section 302/149 I.P.C. The appellants preferred an appeal against the order of conviction and sentence passed by the Trial Court. No appeal was filed by the Sate against the sentence awarded by the Trial Judge on the ground of its inadequacy. The High Court while discussing their appeal clarified that their conviction was on six counts and altered the fine awarded under Section 30/149 I.P.C. from Rs. 200 to Rs. 5,000/- in Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 127/142 respect of each appellant per count i.e., Rs. 30,000/- per appellant. No notice of enhancement of fine or opportunity of hearing on question of inadequacy of sentence was given to the appellant.
162. Being aggrieved, the appellant moved the Hon'ble Supreme Court. In paragraph nos. 4 and 5, the Hon'ble Supreme Court held as hereunder: -
"4. Section 374 of the Code of Criminal Procedure ('the Code' hereinafter) provides for appeals from conviction by a Sessions Judge or an Additional Sessions Judge to the High Court. Section 377 entitles the State Government to direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. Sub-section (3) of Section 377 says that when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause the accused may plead for his acquittal or for the reduction of the sentence. Admittedly no appeal was Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 128/142 preferred by the State Government against the sentence imposed by the High Court on the conviction of the appellants under Section 302/149, IPC. Section 378 provides for an appeal against an order of acquittal. Section 386 enumerates the powers of the appellate court. The first proviso to that section states that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. Section 397 confers revisional powers on the High Court as well as the Sessions Court. It, inter alia, provides that the High Court may call for and examine the record of any proceeding before any inferior criminal court situate within its jurisdiction for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any inferior court. Section 401 further provides that in the case of any proceedings, the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a court of appeal by Sections 386, 389, 390 and 391 of the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 129/142 Code. Sub-section (2) of Section 401 provides that no order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. Sub-section (4) next provides that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. It is clear from a conjoint reading of Sections 377, 386, 397 and 401 that if the State Government is aggrieved about the inadequacy of the sentence it can prefer an appeal under Section 377(1) of the Code. The failure on the part of the State Government to prefer an appeal does not, however, preclude the High Court from exercising suo motu power of revision under Section 397 read with Section 401 of the Code since the High Court itself is empowered to call for the record of the proceeding of any court subordinate to it. Sub-section (4) of Section 401 operates as a bar to the party which has a right to prefer an appeal but has failed to do so but that sub-section cannot stand in the way of the High Court exercising revisional jurisdiction suo Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 130/142 motu. But before the High Court exercises its suo motu revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice and is given an opportunity of being heard on the question of sentence either in person or through his advocate. The revisional jurisdiction cannot be exercised to the prejudice of the convict without putting him on guard that it is proposed to enhance the sentence imposed by the trial court.
5. Now, in the present case the appeal was filed under Section 374(2) of the Code by the convicts against the order passed by the Additional Sessions Judge. No appeal was filed by the State under Section 377(1) of the Code against the sentence awarded by the trial court for the offence under Section 302/149, IPC on the ground of its inadequacy. Nor did the High Court exercise suo motu revisional powers under Section 397 read with Section 401 of the Code. If the High Court was minded to enhance the sentence the proper course was to exercise suo motu powers under Section 397 read with Section 401 of the Code by issuing notice of enhancement and hearing the convicts on the question of Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 131/142 inadequacy of sentence. Without following such procedure it was not open to the High Court in the appeal filed by the convicts to enhance the sentence by enhancing the fine. The High Court clearly acted without jurisdiction. For the above reasons we are clearly of the opinion that the appeal must succeed."
163. In Popular Muthiah v. State, reported in (2006) 7 SCC 296, the Hon'ble Supreme Court was pleased to consider the scope and applicability of Section 482, 374(2), 386 and 397. It was held by the Hon'ble Supreme Court that while exercising appellate jurisdiction, High Court can suo motu exercise its inherent power, can direct further investigation of the case against persons who were not charge- sheeted and were not accused at the stage of trial but whom High Court felt should have been included in the challan. But High Court should exercise the inherent jurisdiction sparingly and only after applying its mind to the material on record so as to be satisfied about existence of a strong prima facie case against such persons and shall also whether any useful purpose is served by issuing such directions particularly after a long lapse of time. Moreover, having regard to facts and circumstances of the present case, High Court should also Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 132/142 give an opportunity of hearing to those persons before issuing the directions.
164. Thus, according to Apex Court, the High Court acts as an ex debito justitiae to do real and substantial justice. So, while exercising appellate jurisdiction, the High Court has inherent power to pass any order for ends of justice under the facts and circumstances of the case.
165. We have carefully perused the judgement passed by the Hon'ble Supreme Court in Nagarajan (supra) and Mahabir & Ors. (supra). In both the judgments, the above decisions of the Co-ordinate Benches were not considered.
166. In National Insurance Co. Ltd. v. Pranay Sethi & Ors., reported in (2017) 16 SCC 680, a Five Judges Bench of the Hon'ble Supreme Court held in paragraph nos. 16 to 21 as hereunder: -
"16. In State of Bihar v. Kalika Kuer [State of Bihar v. Kalika Kuer, (2003) 5 SCC 448] , it has been held :
(SCC p. 454, para 10) "10. ... an earlier decision may seem to be incorrect to a Bench of a coordinate jurisdiction considering the Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 133/142 question later, on the ground that a possible aspect of the matter was not considered or not raised before the court or more aspects should have been gone into by the court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the later Bench of coordinate jurisdiction. ..."
The Court has further ruled :
(SCC p. 454, para 10) "10. ... Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways -- either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits."
17. In G.L. Batra v. State of Haryana [G.L. Batra v. State of Haryana, (2014) 13 SCC 759 : (2015) 3 SCC (L&S) 575] , the Court has accepted the said principle on the basis of judgments of this Court rendered in Union of Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 134/142 India v. Godfrey Philips India Ltd. [Union of India v. Godfrey Philips India Ltd., (1985) 4 SCC 369 : 1986 SCC (Tax) 11] , Sundarjas Kanyalal Bhatija v. Collector, Thane [Sundarjas Kanyalal Bhatija v. Collector, Thane, (1989) 3 SCC 396] and Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel [Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel, AIR 1968 SC 372] . It may be noted here that the Constitution Bench in Madras Bar Assn. v. Union of India [Madras Bar Assn. v. Union of India, (2015) 8 SCC 583] has clearly stated that the prior Constitution Bench judgment in Union of India v. Madras Bar Assn. [Union of India v. Madras Bar Assn., (2010) 11 SCC 1] is a binding precedent. Be it clarified, the issues that were put to rest in the earlier Constitution Bench judgment were treated as precedents by the later Constitution Bench.
18. In this regard, we may refer to a passage from Jaisri Sahu v. Rajdewan Dubey [Jaisri Sahu v. Rajdewan Dubey, AIR 1962 SC 83] : (AIR p. 88, para 10) "10. Law will be bereft of all its Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 135/142 utility if it should be thrown into a state of uncertainty by reason of conflicting decisions, and it is therefore desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision [Dasrath Singh v. Damri Singh, 1925 SCC OnLine Pat 242 : AIR 1927 Pat 219] given by a Bench is not brought to the notice of a Bench [Ram Asre Singh v. Ambica Lal, AIR 1929 Pat 216] hearing the same question, and a contrary decision is given without reference to the earlier decision. The question has also been discussed as to the correct procedure to be followed when two such conflicting decisions are placed before a later Bench. The practice in the Patna High Court appears to be that in those cases, the earlier decision is followed and not the later. In England the practice is, as noticed in the judgment in Gundavarupu Seshamma v. Kornepati Venkata Narasimharao [Gundavarupu Seshamma v. Kornepati Venkata Narasimharao, 1939 SCC OnLine Mad 367 : ILR 1940 Mad 454] that the decision of a Court of Appeal is considered as a general rule to be binding on it. There are exceptions to it, Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 136/142 and one of them is thus stated in Halsbury's Laws of England, 3rd Edn., Vol. 22, Para 1687, pp. 799-800:
'1687. ... the court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of a coordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords.' In Katragadda Virayya v. Katragadda Venkata Subbayya [Katragadda Virayya v. Katragadda Venkata Subbayya, 1955 SCC OnLine AP 34 : AIR 1955 AP 215] it has been held by the Andhra High Court that under the circumstances aforesaid the Bench is free to adopt that view which is in accordance with justice and legal principles after taking into consideration the views expressed in the two conflicting Benches, vide also the decision of the Nagpur High Court in D.D. Bilimoria v. Central Bank of Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 137/142 India [D.D. Bilimoria v. Central Bank of India, 1943 SCC OnLine MP 97 : AIR 1943 Nag 340] . The better course would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other. We have no doubt that when such situations arise, the Bench hearing cases would refer the matter for the decision of a Full Court."
19. Though the aforesaid was articulated in the context of the High Court, yet this Court has been following the same as is revealed from the aforestated pronouncements including that of the Constitution Bench and, therefore, we entirely agree with the said view because it is the precise warrant of respecting a precedent which is the fundamental norm of judicial discipline.
20. In the context, we may fruitfully note what has been stated in Pradip Chandra Parija v. Pramod Chandra Patnaik [Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1] . In the said case, the Constitution Bench was dealing with a Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 138/142 situation where the two-Judge Bench [Pradip Chandra Parija v. Pramod Chandra Patnaik, Civil Appeal No. 791 of 1993, order dated 24-10-1996 (SC)] disagreeing with the three-Judge Bench [Nityananda Kar v. State of Orissa, 1991 Supp (2) SCC 516 : 1992 SCC (L&S) 177] decision directed the matter to be placed before a larger Bench of five Judges of this Court. In that scenario, the Constitution Bench stated : (SCC p. 4, para 6) "6. ... In our view, judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. ..."
21. In Chandra Prakash v. State of U.P. [Chandra Prakash v. State of U.P., (2002) 4 SCC 234 : 2002 SCC (L&S) Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 139/142 496] , another Constitution Bench dealing with the concept of precedents stated thus : (SCC p. 245, para 22) "22. ... The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court. It is in the above context, this Court in Raghubir Singh [Union of India v. Raghubir Singh, (1989) 2 SCC 754] held that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or smaller number of Judges. ..."
Be it noted, Chandra Prakash [Chandra Prakash v. State of U.P., (2002) 4 SCC 234 : 2002 SCC (L&S) 496] concurred with the view expressed in Raghubir Singh [Union of India v. Raghubir Singh, (1989) 2 SCC 754] and Pradip Chandra Parija [Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1]."
167. Again in paragraph 28 of the aforesaid Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 140/142 judgement, the Hon'ble Supreme Court held as follows: -
"28. In this context, we may also refer to Sundeep Kumar Bafna v. State of Maharashtra [Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558] which correctly lays down the principle that discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench. There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of same strength.
Though the judgment in Rajesh case [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 141/142 149] was delivered on a later date, it had not apprised itself of the law stated in Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191: (2013) 3 SCC (Cri) 826] but had been guided by Santosh Devi [Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 :
(2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] . We have no hesitation that it is not a binding precedent on the co-equal Bench."
168. Thus, we are of the respectful view that in case of conflicting decisions of the High Court or the Hon'ble Supreme Court, on the same issue, the earlier precedent shall prevail, especially when the subsequent decisions were rendered without considering the earlier decisions.
169. For the reasons stated above, we are of the view that we are inclined to issue notice to Raj Kishore Sao and Panna Lal, if they are alive, under Section 401 read with Section 482 of the Cr.P.C., directing them to appear before us to show cause as to whether this Court shall not quash the order of acquittal passed in favour of them by the learned Trial Judge in Sessions Trial No. 108 of 1983 within a period of four weeks from the date of this order.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026 142/142
170. The department is directed to issue notice upon Raj Kishore Sao and Panna Lal through the SHO, Bihar Police Station, Nalanda at Bihar Sharif.
(Bibek Chaudhuri, J) Chandra Shekhar Jha, J: I agree.
(Chandra Shekhar Jha, J) skm/-
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