Patna High Court
Arun Mandal & Ors vs State Of Bihar on 19 October, 2011
Author: Shyam Kishore Sharma
Bench: Shyam Kishore Sharma, Sheema Ali Khan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.352 of 2005
======================================================
1. RAM BILASH YADAV
2. NARO YADAV @ NARESH YADAV SON OF LATE JHARI YADAV
3. SHIYA RAM YADAV SON OF LATE BALDEO YADAV
4. SARYUG YADAV @ SAJJO YADAV @ SAJO YADAV @ SAJI
YADAV SON OF LATE JAGESHWAR YADAV
ALL R/O VILLAGE- KAMARGANJ, P.S.- SULTANGANJ, DISTRICT-
BHAGALPUR
.... .... APPELLANT/S
VERSUS
STATE OF BIHAR............................. .... RESPONDENT/S
With
CRIMINAL APPEAL (DB) NO. 425 OF 2005
=====================================================
1. ARUN MANDAL SON OF PUNNA MANDAL
2. DHURUB BHAGAT SON OF LATE BECHU BHAGAT
3. JAI JAI YADAV SON OF LATE BALDEO YADAV
4. TARKESHWAR YADAV SON OF LATE RATTAN YADAV
5. MAHENDRA YADAV SON OF LATE MAHADEO YADAV
6. RAJ KISHORE YADAV @ RAJ KISHORE BHAGAT
ALL RESIDENT OF VILLAGE- KAMARGANJ, P.S.- SULTANGANJ,
DISTRICT- BHAGALPUR........................ .... APPELLANT/S
VERSUS
STATE OF BIHAR............................. .... RESPONDENT/S
======================================================
Against the judgment of conviction and order of sentence dated 9th
and 12th May, 2005 passed in Sessions Case No. 359 of 1990 ( R )
by Sri N. K. Pandey, 7th Additional Sessions Judge, Bhagalpur
=======================================================
Appearance :
For the Appellant/s : Mr. Baxi S.R.P. Sinha, Sr. Advocate
Mr. Lokesh Kumar Sinha, Advocate
For the Respondent/s : Mr. Salahuddin Khan, Spl. PP
Mr. Saurabh Kr. JC to Spll. P. P.
======================================================
CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
And
HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA)
Above noted both the appeals are related with the
massacre of the district of Bhagalpur in the month of November,
Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 2
1989 when frenzied mob of thousands surrounded the village and
indiscriminately killed the persons belongings to a particular
community.
2. Above noted both the appeals, preferred by the above
named appellants, have arisen out of common judgment dated 9th
and 12th May, 2005 passed in Sessions Trial No. 359 of 1990 ( R ) by
the learned 7th Additional Sessions Judge, Bhagalpur whereby the
appellants were convicted for offences punishable under Sections
302/149, 436/149, 153 A/149 of the Indian Penal Code and were
sentenced to undergo rigorous imprisonment for life for the offence
under Sections 302/149 of the Indian Penal Code, 10 years rigorous
imprisonment for the offence under Section 436/149 IPC and 2
years for the offence under section 153A/149 Indian Penal Code. All
the sentences were directed to run concurrently.
3. The prosecution story, in brief, is that on 14.11.1989 at
9.00 AM the Officer In-Charge of Sultanganj Police Station along
with other police officials was establishing contacts with general
public so that a peace meeting at the police station in the wake of
communal situation then prevailing in Bhagalpur District may be
arranged. At that very time, he (PW 22) came to know that the
village Karamganj was being burnt by the rioters. Immediately
thereafter, he with police party rushed towards Karamganj village
and arrived there at 9.20 AM and saw that the village was
surrounded from all directions by the rioters who were burning the
houses of Muslims. At the sight of the police, the rioters retreated
Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 3
towards the Railway Station Muslim Tola. The Officer In-charge (PW
22) went there and saw the houses belonging to the Muslims were
being burnt there also. The rioters thereafter, went towards the river
and from there they started firing upon the Muslims. When the
police party arrived at the bank of the river, then the Officer-in-
charge ordered his policemen to resort to firing so that the police
and victims may be saved. The rioters on the arrival of the police,
escaped towards „Diyara‟ land. Thereafter, the fard-beyan of Badrul
Islam, Son of Md. Kalam resident of village Karamganj was taken at
10.30 AM on the same day wherein Badrul Islam described the
occurrence saying that about 500-2000 Hindu rioters variously
armed with Farsa, lathi and gun had started firing indiscriminately
upon the persons of Muslim community. The Muslims in order to
save themselves tried to escape from the village. The mob of rioters
was being led by Dayanand Yadav and Jai Jai Yadav. Among the
rioters, the informant identified 52 persons, namely, (1) Dayanand
Yadav, (2) Mahendra Yadav, (3) Sajo Yadav, (4) Khelo Yadav, (5)
Chitpur @ Ram Baran Yadav (6) Siya Ram Yadav, (7) Jai Jai Yadav,
(8) Arun Mandal (9) Ram Bilash Yadav (10) Tarkeshwar Yadav (11)
Kailash Yadav, (12) Sajji Yadav (13) Sudhir Kumar Yadav, (14)
Dinesh Yadav, (15) Raj Kmar Yadav, (16) Ram Kumar Bhagat, (17)
Ram Bhu Yadav, (18) Hari Kishore Yadav, (19) Rajgir Yadav, (20) Raj
Janam Yadav, (21) Dukhan Yadav, (22) Subelal Yadav, (23)
Ramanand Yadav, (24), Mangal Yadav, (25), Sitaram Tiwary, (26)
Tuna Tiwary, (27) Raj Kumar Tiwary, (28) Sikander Yadav, (29)
Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 4
Nandu Bhagat, (30) Bhangi Rai, (31) Dhrub Bhagat, (32) Naro
Yadav, (33) Raju Yadav, (34) Sashi Bhagat (35) Kishori Bhagat (36)
Bahadur Yadav, (37) Arjun Yadav, (38) Prakash Yadav (39) Malkha
Yadav, (40) Nawal Yadav, (41) Dayanand Tiwary, (42) Gaya Tiwary,
(43) Satya Narayan Bhagat, (44) Sarchan Yadav, (45) Sarjan Yadav,
(46) Tini Yadav, (47) Upendra Yadav, (48) Congressi Yadav, (49)
Parsadi Mandal, (50) Anil Mandal, (51) Vijay Yadav and (52) Shankar
Yadav. The informant further told that the rioters killed his father
Md. Kalam and his younger brother Md. Mahboob Alam, and also
killed Md. Sauf, son of late Md. Habib and Md. Zahir Khan, son of
Md. Doman Khan. He further stated that his villagers Md. Kamal
Hussain, Md. Nizamuddin, Md. Fakruddin, Md. Nasim, Hafijan Bibi,
and one Md. Rizwan of village Kol were the persons who were
seriously injured. His villager Wasim @ Karoo was found missing
and later on his dead body was also found. The fard-beyan signed
by the informant, led to the registration of Sultanganj P.S. Case No.
213 dated 14.11.1989 under Sections 147, 148, 436, 307, 302,
295/364 of the Indian Penal Code and Section 27 of the Arms Act.
Inquest reports of the deceased were prepared. The allegations were
investigated into. The post mortem reports as well as the injury
reports were obtained and after investigation, the case was found to
be true and chargesheet was submitted. Accordingly, cognizance
was taken and the case was committed to the court of Sessions
where the charge under Section 302 Indian Penal Code was framed
against Congressi Yadav, Arun Mandal, Jai Jai Yadav, Dayanand
Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 5
Yadav, Dukhan Yadav and Dhrub Bhagat. Charges under Sections
302/149, 148, 436/149, 307/149 and 153 A (1) (b) of the Indian
Penal Code were framed against Satyanarayan Bhagat, Dhrub
Bhagat, Kishori Bhagat, Jai Jai Yadav, Tarkeshwar Yadav, Ram
Bilash Yadav, Hari Kishore Yadav, Mahednra Yadav, Mogal Yadav,
Dukhan Yadav, Tunna Tiwari, Ram Janam Yadav, Rajgir Yadav,
Naro Yadav @ Naresh Yadav, Subelal Yadav, Sikandar Yadav, Raj
Kishore Yadav, Nand Kishroe Yadav, Siya Ram Yadav, Ram Baran
Yadav, Bahadur Yadav, Arun Mandal, Sanju Yadav, Anil Mandal,
Sarjan Yadav, Sarchan Yadav, Congressi Yadav and Khelo Yadav
and Charge under Section 27 of the Arms Act was framed against
Jai Jai Yadav, Tunna Tiwari @ Shiv Kumar Tiwari, Mahendra Yadav,
Tarkeshwar Yadav, Daya @ Daya Nand Yadav, Sajo @ Saji Yadav,
Siya Ram Yadav, Rama Nand @ Kaila Yadav, Sikandra Yadav,
Nandu Bhagat, Congressi Yadav, Raj Kishore Bhagat @ Raj Krishna
Yadav, Subelal Yadav, Rama Nand Yadav, Sarchan Yadav, Malkha @
Mogal Yadav and Kishori Bhagat.
4. Though charges were framed against 28 persons but
only 23 have faced the trial. Defence of the accused persons was of
false implication and also that mere presence of the
accused/appellants were not enough to establish that they, in any
manner, were concerned with the occurrence.
5. In order to prove the charges, the prosecution has
examined 23 witnesses. They are: Mir Mohammad Ali (PW 1), Md.
Haider Ali (PW 2), Ainul Haque (PW 3), Sk. Kasim (PW 4), Abdul
Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 6
Qudus (PW 5), Md. Nizamuddin (PW 6) (injured), Md. Kalam (PW 7)
(injured), Md. Wali (PW 8), Abdul Gaffar (PW 9), Rahmatullah (PW
10), Md. Kamal Hassan (PW 11), Md. Sahabuddin (PW 12), Md.
Hakim (PW 13), Azaj Ahmad (PW 14), Md. Raza (PW 15), Md. Afsar
(PW 16), Soms Tavraz (PW 17), Md. Naseem (PW 18) (injured), Md.
Badrul Islam the informant (PW 19), Dr. Nagendra Narayan Bhagat
(PW 20), Md. Naushad Ali (PW 21), Prem Ranjan Sharma the
Investigating Officer (PW 22) and Dr Kailah Jha (PW 23).
6. The defence has examined 10 witnesses. They are: Dr.
Shiv Kumar Mahanraria (DW 1), Anil Mandal (DW 2), Fulchan
Mandal (PW 3), Wakil Mandal (DW 4), Lukho Mandal (DW 5), Bhola
Prasad Mandal (DW 6), Bharat Sah (DW 7), Dilip Kumar Yadav (DW
8), Dilip Kumar Yadav (DW 9) and Angad Yadav (DW 10).
7. PW 10 has been tendered by the prosecution whereas
PWs 1 to 9, 11 to 13 and 21 were declared hostile. PW 22 is the
Investigating Officer and PWs 20 and 23 are the doctors who have
conducted the post mortem examination on the persons of the
deceased. The occurrence has been supported by PWs 14, 15, 16,
17, 18 and 19.
8. On the basis of depositions, documents made available
by both the sides and after considering the defence and prosecution
witnesses, the trial court found the appellants guilty and acquitted
others from the charges.
9. This Court is now required to see as to whether the trial
court was justified in its conclusion and also as to whether the
Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 7
prosecution has been able to establish the charge against the
appellants beyond the shadow of all reasonable doubts or not.
10. Dr. Nagendra Narayan Bhagat (PW 20) has conducted
the post mortem examination upon the dead body of Md. Zahir
Khan, son of Md. Demu Khan aged 65 years at 11.15 AM on
15.11.1989and found following injuries:
(i) Incised wound 3" x 1" x bone deep on left leg 3" above ankle cutting muscle vessels and bone,
(ii) Incised wound 4‟ x 1½" x bone deep on right leg 4" above ankle and
(iii) Bruises 4" x 1" on upper part of left side of abdomen.
The injuries were caused by sharp cutting weapon and death was within 30 hours. The Post mortem report (Ext. 2) gives the detail of the ante-mortem injuries of Md. Zahir Khan.
On the same day at 11.25 AM post mortem of Md. Kalam aged 60 was performed by this witness and he has found following injuries:
(i) Incised wound 5" x 2" x bone deep on left side skull on left parital region,
(ii) Incised wound 2½" x ½" x bone deep left temporal region cutting left ear.
Injuries were ante mortem caused by sharp Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 8 cutting weapon. The post mortem report (Ext. 2/1) notes the detail of ante-mortem injuries of the deceased Md. Kalam.
On the same day, PW 20 performed post mortem on the dead body of Md. Sauf son of late Habib of village Karamganj and prepared the post mortem report (Ext. 2/2) which noted following injuries:
(i) Incised wound 7" x 3" x vertibera deep on left side and posterior part of neck
(ii) Incised wound 3" x 1" x bone deep on left jaw.
Injuries were ante-mortem in nature and caused by sharp cutting weapon.
On that very day, again at 11.45 AM PW 20 performed post mortem examination on the dead body of Md. Mahboob Alam son of Md. Kalam of Kamarganj aged about 23 years and found following injuries:
(i) Fire arm wound of entry 1c.m. diameter margin inverted, abraded 2" medial, 1"
below left nipple,
(ii) Wound of exit 2 c.m. diameter margin everted on back mid spinal line projectile passed through left lung, heat posterior wall, muscles spine out through wound of Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 9 exit. Blood was in the chest cavity,
(iii) Incised wound 1¼" x 1/3" x muscle deep on chin and
(iv) Fire arm grazing wound on right hand 2" x ½" x muscle deep.
According to the opinion of the doctor, the injuries were caused by sharp cutting weapon and the post mortem report (Ext. 2/3) reveals the details of the ante-mortem injuries of Md. Mahboob Alam. PW 23, Dr. Kailash, on 18.11.1989 at 11.45 has conducted post mortem upon the dead body of Md. Washim @ Karoo aged about 20 years and found following ante mortem injuries:-
(i) Firearm wound of entry at the eye cavity, tattooing around wound,
(ii) Firearm wound of exit on occipital area head skull fracture wound, the projectile passed out of the body,
(iii) Sharp cut on back of neck at root 1½" x 1"
x bridge and
(iv) Sharp cut on nose interior 1"x ½" x nose bridge.
According to the opinion of the doctor, the death was 3-5 days prior to the post mortem examination. The Post Mortem examination report Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 10 (Ext. 2/4) reveals the details of the ante mortem injuries of Md. Wasim @ Karoo.
11. The death of aforesaid persons is not under challenge which is apparent from the trend of cross-examination and the prosecution has proved that the persons whose post mortem examinations were done were actually killed by means of firearm and sharp cutting weapons. The time and date of their killing is in tune with the prosecution version which has been detailed in the inquest report. Therefore, their killing has been established beyond the shadow of all reasonable doubts.
12. Once the prosecution has proved that the persons were killed, then the onus to establish is on the prosecution that the killing was by the accused persons and for that the evidence is required to be considered.
13. PWs 1 to 9, 11 to 13 and PW 21 have stated that a mob of about 2500 persons had assembled in the morning on the date of occurrence and they killed and injured the persons. Therefore, their evidence is only to that extent that rioters by forming unlawful assembly have burnt the houses, killed five persons and injured others. Therefore, from their evidence, though they have been declared hostile, it has been proved that the rioters have killed the persons belonging to muslim community, but their evidence does not disclose participation of any of the accused persons and so their evidence so far as identification is concerned, is of no use for the prosecution. PW 10 has been tendered by the Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 11 prosecution.
14. Learned counsel for the appellants submitted that due to tendering of PW 10 the defence case has been prejudiced. It has further been submitted that the judgment in the case of Sukhwant Singh Versus State of Punjab reported in (1995) 2 Supreme Court Cases 367 shows that the tendering of witness for cross- examination without their being any examination-in-chief is not permissible and it amounts to giving up of the witness.
15. Section 138 of the Evidence Act prescribes the order of examination of a witness according to which a witness is firstly examined in-chief, then (if the adverse party so desires) cross- examined, then (if the party calling him so desires) re-examined. The practice of tendering witness for cross-examination is not dealt with in this section. This practice only enhances the confusion and it does not assist the court in discovering the real issue. It is apparent that tendering of a witness for cross-examination only tantamount to giving up a witness. Therefore, tendering of one witness cannot be said to be the cause of causing prejudice to the defence.
16. The informant, PW 19 has described the occurrence. On 14.11.1989 at about 8.30 AM, his statement was recorded by the police (Ext. 1). Describing the occurrence, he stated that about 8.30 AM he was inside the house. Suddenly the sound of firing was heard and rioters raising the slogan of "Jai Bajrang Bali" attacked the village. The informant came out from his house and saw the Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 12 rioters there. In order to save himself, the informant and other persons went upon the roof of Aziz Khan and from there he saw the persons with gun, sword, farsa etc. encircling the houses and they were firing indiscriminately. The informant‟s father was coming from the tea-stall situated towards east. The rioters indiscriminately assaulted his father, Abdul Kalam. The informant has identified the assailants, i.e. appellants, Arun Mandal and Dhrub Bhagat. He also subsequently named the appellant Mahendra Yadav, accused Raj Kumar Bhagat, and Raj Kumar Yadav. He also identified Jai Jai Yadav, Siya Ram Yadav, Sajo Yadav, Rambilash Yadav, Kalachand Yadav, Congressi Yadav, Daya Yadav, Chutput Yadav @ Ram Baran Yadav (dead), Tarkeshwar Yadav, Khalo Yadav, Dukhan Yadav, Raj Kumar Bhagat, Raj Kumar Yadav and Sudhir Yadav. He stated that his father was assaulted by sharp cutting instrument by Arun Mandal and others assaulted him by means of lathi. The informant‟s brother Mahboob ran to save his father, then he too was chased by Congressi Yadav and Shambhu Yadav and others and was assaulted by Sharp cutting instrument. Others also assaulted and subsequently Congressi Yadav fired upon the informant‟s brother who died there. Zahir Khan who was beaten and dragged towards the river by Jai Jai Yadav and that mob consisted of Khalo Yadv, Sajo Yadav and Tarkeshwar Yadav. According to the witness, the rioters have brunt 15-16 houses. The Mosque was destroyed. Books which were kept for Namaz were burnt. Jai Jai Yadav was armed with gun, Sajo Yadav was armed with rifle, Khalo Yadav having Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 13 lathi, Mashal and carried a can of kerosene oil, were committing various overt acts. Tarkeshwar was armed with gun, Siyaram with a rifle, Kalachand with gun, Mahendra with a gun, Congressi with a gun, Arun Mandal with a small gun and sharp cutting instrument, Rambilash was armed with a Dampola and can of Kerosene oil. Ram Kumar Bhagat and Raj Kumar Bhagat were armed with sharp cutting instruments and lathi. Daya Yadav with gun, Ram Baran Yadav with small gun, were identified by the informant.
17. Altogether five persons were killed and five persons, namely, Md. Kamal, Ekbal, Badrujamma, Nizam and Rizwan were injured in rioting. The police came one and half hours after the commencement of the occurrence and opened fire, on the rioters which led to flee away. When the Superintendent of Police came to the place of occurrence then the informant and others came down and narrated in detail about the occurrence. Inquest reports were prepared by the Officer-In-charge and this witness put his signature on the inquest reports (Exts. 1/1 to 1/3). Md. Sahabuddin, Md. Bali, Md. Nasim, Md. Afsar, Md. Ezaz, Tabrez have came to identify Dukhan Ydav, Kishore, Naro Yadva and Satyanarayan Bhagat as rioters.
18. PW 14 has described the occurrence and he has supported the entire manner and stated that on 14.11.1989 at about 8.30 AM he heard shouts of "Jai Bajrang Bali". Out of fear he went to his roof and saw Satynarayan Bhagat with a red flag. He was followed by others and PW 14 identified Satya Narayan Bhagat, Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 14 Arun Mandal, Sajo Yadva, Anil carrying country made pistols and Sajo Yadav carrying a rifle. The rioters indiscriminately fired and burnt 15-16 houses. According to him, he has identified only 4 persons and about others he has stated that they were not of his village. He has denied the suggestion that persons were killed on account of firing by the police.
19. PW 15 has described the manner of occurrence and has identified Naro Yadav, Nandu Bhagat carrying a gun and Mashal, Jai Jai Yadav also armed with a gun, Siyaram Yadav with a rifle, Chutput @ Rambaran Yadav (dead) with a gun, Subelal with a Bhala, Dukhan with a lathi, Rambilash with a Damkhola and tin of kerosene oil and Raj Kishore Bhagat with a gun.
20. PW 16 has identified Dhrub Bhagat, Dukhan Yadav, Hari Kishore Yadav assaulting Klam Sipahi. At that time Dukhan was carrying a Lathi, Hari Kishore was carrying a Bhala and Dhrub was carrying a khanti. This witness later on went upon the roof of Abul Khan and saw Sarchand Yadav and Mahendra Yadav firing. Raj Kishroe Yadav and Sikander Yadav were burning the paddy. He further saw Daya Yadav, Jai jai Yadav, Siya Ram Yadav, Subedar Yadav dragging Zahir Khan after killing him. At that time Daya Yadav was armed with a gun, Siyaram was carrying a rifle and Subelal was armed with a gun. According to him, Daya Yadav and Siya Ram Yadav fired on the police also. He further stated that Malkhu Yadav and Tarkeshwar Yadav have also fired on the police. He denied the suggestion that the police firing led to the death of Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 15 any person. He has seen Subelal Yadav and Siyaram Yadav near the Mosque which was destroyed and burnt. This witness has identified the persons who were present in the Court.
21. PW 17 has supported the occurrence and he has stated that among rioters Dhrub Bhagat was having Khanti.
22. PW 18 is an injured witness and has identified Mahendra Yadav, Tarkeshwar Yadav dragging and assaulting Zahir Khan. Other injured witnesses, namely, PWs 6 and 7 though have supported the factum of occurrence but they have not identified the accused.
23. The evidence of the witnesses can be summed up in tabular form for proper and smooth understanding of the prosecution case, as far as it relates to the identification of witnesses.
Name of PW 14 PW PW PW 17 PW PW 19 No. of
the Ezaz 15 16 Samar 18 Badrul identification
appellants Ahmad Md. Md. Tabrez Md. Islam
with their Raza Afsar Nasim
respective
serial
number in
the
accused
column of
FIR
Ram Bilash
Yadav at sl. Para Para 4 2
No. 9 1
Naro Yadav Para Para 2
at Sl. No. 1, 11
32 and
6
Siya Ram Para Para Para 4 3
Yadav at 1, 2 2
Sl. No. 6 and
Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 16
6
Saryug Para 2
hyadv @ Para 1 4, 7
Sajjo Yadav and 8
at Sl. No.
12
Para
Arun Para 1 3, 4 2
Mandal at and 5
Sl. No. 8
Dhrub Para Para Para 3
Bhagat at 1 1 3
Sl. No. 31
Jai Jai Para Para Para 3
Yadav at 1 2 7&8
Sl. No. 7
Tarkeshwar Para Para Para 3
Yadav at 3 1 4, 7
Sl. No. 10 and 8
Mahednra Para Para Para 3
Yadav at 2 1 3, 4
Sl. No. 2 and 8
Rajkishore Para 2
Yadav @ Para 2
Raj Kishore 6
Bhagat at
Sl. No. 15
24. To sum up the prosecution evidence, Ram Bilash Yadav stands identified by PW 15 (Para 1), PW 19 (Para 4). Naro Yadav by PW 15 (Para 1 and 6) and PW 19 (Para 11), Siya Ram Yadav by PW 15 (Para 1, 2 & 6), PW 16 (para 2) and Pw 19 (para 4). Sarju Yadav @ Sajo Yadav by PW 14 (Para 1) and PW 19 (Para 4, 7 and 8). Arun Mandal by PW 14 (Para 1) and PW 19 (para 3, 4 and 5). Dhrub Bhagat by PW 16 (para1), PW 17 (para 1) and PW 19 (para 3). Jai Jai Yadav by PW 15 (Para 1), PW 16 (Para 3), PW 18 (Para 1) and PW 19 (Para 4, 7 and 8). Mahendra Yadav by PW 16 (Para 2), PW 18 para 1 and PW 19 (Para 3, 4 and 8) and Raj Kishore Yadav @ Raj Kishore Bhagat by PW 15 (Para 6) and PW 16 (Para 2) meaning Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 17 thereby appellant Ram Bilash Yadav, Naro Yadav, Sarju Yadav @ Sajo Yadav, Arun Mandal and Raj Kishore Yadav @ Raj Kishore Bhagat were identified by two witnesses whereas others were identified by 3 witnesses.
25. Learned counsel for the appellants submitted that there is no evidence that unlawful assembly was for the purpose of killing and mere presence as a member of mob will not make that person accused in the case. There must be some evidence that the presence was for the purpose of doing something and then only conviction can be made with the assistance of section 149 Indian Penal Code. It has further been submitted that in the case of Masalti & Ors. Vrs. State of U.P. reported in AIR 1965 Supreme Court 202 it has been held that all the members of such assembly cannot be said to be involved in the offence and so all cannot be fastened with the liability of being branded as members of unlawful assembly. Reliance has been placed on para 17 of the judgment aforesaid which is reproduce below:
17. "Mr Sawhney then attempted to argue that the High Court failed to give effect to the principles enunciated by this Court in the case of Baladin v. State of Uttar Pradesh(S) AIR 1956SC 181.. In that case, it was observed by Sinha, J., who spoke for the Court that it is well-
settled that mere presence in an assembly does not make a person, who is present, a member of an unlawful Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 18 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 IPC. The argument is that evidence adduced used by the prosecution in the present case does not assign any specific part to most of the accused persons in relation to any overt act, and so, the High Court was in error in holding that the appellants were members of an unlawful assembly. The observation of which Mr Sawhney relies, prima facie, does seem to support his contention;
but, with respect, we ought to add that the said observation cannot be read as laying down a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of such an unlawful assembly. In appreciating the effect of the relevant observation on which Mr Sawhney has built his argument, we must bear in mind the facts which were found in that case. It appears that in the case of Baladin (s) AIR 1956 SC 181 the members of the family of the appellants and other residents of the village had assembled together; some of them shared the common object of the Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 19 unlawful assembly, while others were merely passive witnesses. Dealing with such an assembly, this Court observed that the presence of a person in an assembly of that kind would not necessarily show that he was a member of an unlawful assembly. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained long with the other members of the assembly the common object as defined by Section 141 IPC Section 142 provides that however, being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continue in it, is said to be a member of an unlawful assembly.
In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common object specified by the five clauses of Section 141, is an unlawful assembly.
The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 20 were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin (S) AIR 1956 SC 181 assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of Baladin(S) AIR 1956 SC 181 Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 21 must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition or law such as Mr Sawhney suggests."
Further reliance has been placed on the judgment in the case of Dani Singh & Ors. Versus State of Bihar reported in 2004 CRI. L. J. 3328 (Supreme Court). Paragraph 21 of the judgment aforesaid is reproduced below:
21. The plea that some of the accused persons did not commit any overt act would really of no consequence. They were not mere sightseers as claimed.
There is nothing to show that they had dissuaded the persons from committing the criminal act or withdrew at any point of time during the course of the incident constituting by itself or as a step in furtherance of the ultimate offence.
There is nothing unusual in deceased Gopi running after the deceased Kishun and other eyewitnesses. In order to ascertain as to what was the cause of the explosion and to run after the deceased seeing him towards house of PW-6. The eyewitnesses have identified the accused persons and have stated about their presence inside the house of PW-6. There is no discrepancy so far as the identification is concerned and about the weapons carried by the identified Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 22 accused persons. It has also come in evidence that the targeted victims were the deceased persons with whom the animosity is admitted. The objective findings recorded by the IO on spot verification also are in line with the evidence of eyewitnesses.
Reliance has also been placed on the judgment in the case of Shambhu Nath Singh & Others Versus State of Bihar reported in AIR 1960 Supreme Court 725. It has been submitted that if one or more members of a mob causes death then the others may not be held to be vicariously liable, unless it is shown that they had knowledge of the intention to kill and thus can be convicted under section 326/149 IPC even though no member has cause grievous shot. Paragraph 6 of the judgment is reproduced below:
6. Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence, and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 23 that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. But "members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly." Jahiruddin v.
Queen Empress, ILR 22 Cal 306.
Further reliance has been placed on the judgment of Santosh Versus The State of Madhya Pradesh reported in AIR 1975 SC 654 and it has been argued that all the members of unlawful assembly may not be necessarily mentioned with the object of causing death. Reliance has been placed on paragraph 8 of the judgment which is reproduced hereinbelow:
Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 24
8. A reference made to Chikkarange Gowda & Ors. v. State of Mysore(2), would show that each member of a mob need not be necessarily be held liable for the actions of every other member of that mob. It may be easier, in some respects, to prove a common object as a basis for a vicarious liability under Section 149 IPC, than to establish a common intention within the meaning of Section 34 IPC. Nevertheless, as was pointed out by this Court in Chikkarange Gowda's case (supra), the principle has been well recognised, since the decision in 1873 in Queen v. Sabed Ali(3), that every offence which may be committed by a member of an unlawful assembly will not be necessarily ascribed to or vicariously fastened upon every other member of that assembly by using Section 149 IPC.
The likelihood of causing of death by the nature of the actions of the members of the assembly must be shown to be within the knowledge of a member who is to be made vicariously liable for a death. Such knowledge may be inferred from the nature of the actions committed by others in an unlawful assembly which the member held vicariously liable continues to associate himself with despite these actions seen by him or known to him.
Reliance has also been placed on the judgment of Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 25 Gangadhar Behera and others Versus State of Orissa reported in 2002 AIR SCW 4271. Paragraph 22 and 24 thereof are reproduced hereinbelow:
22. Another plea which was emphasized relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 26 commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 27 may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly.
24. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 28 common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be called out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word 'knew' used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part.
The distinction betweens the two parts of Section 149 cannot be ignored or obliterated. In every case is would be an issue to be determined, whether the offence committed falls within the first Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 29 part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and others v. State of Mysore :
AIR 1956 SC 731.)
26. On the other hand learned counsel appearing on behalf of the State has relied upon the judgment in the case of State of U. P. Versus Kishan Chand and others reported in (2204) 7 Supreme Court Cases 629.
27. Section 149 creates a specific and distinct offence. The vicarious liability of members of unlawful assembly extends only to:
(1) the acts done in pursuance of the common object of the unlawful assembly, and (2) such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. An accused person whose case falls in this section cannot take defence that he did not with his own hand commit the offence in prosecution of the common object of unlawful assembly or for the member of the assembly. He knew that such offence was likely to be committed. It is not necessary in two cases that all the persons Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 30 forming the unlawful assembly must do some overt act. Where the accused had assembled, taking arms weapons and were parties to the assault then the prosecution is not obliged to prove each specific overt act was done by each of the accused. In such circumstances every member of unlawful assembly is responsible for an offence committed by any member or other members in prosecution of the common object of such assembly. The provision of Section 149 IPC takes the accused out of the reason of abetment and makes him responsible for the acts of each and all because he is a member of unlawful assembly.
28. In the case in hand, the Investigating Officer has described the magnitude of the offence. Riots were going on in the District of Bhagalpur since 14th of November, 1989 and he was engaged in arranging a meeting of the peace committee, at the police station. In the meanwhile he received information that houses of Muslims of Kamarganj were being burnt and they are being assaulted. He rushed towards the place of occurrence with police party and found that the village was encircled by the rioters. When the police tried to save them, the mob opened fire on the police. The police had to retaliate and only thereafter, the rioters retreated. According to him, at 11 places the occurrence has occurred and in all the places houses of Muslims were found burnt and destroyed. In the present occurrence alone, five Muslims were killed and some persons sustained injuries. Therefore, the object of the mob was definitely to cause ultimate harm because when the police had gone Patna High Court CR. APP (DB) No.352 of 2005 dt.16-09-2011 31 to save the sufferers, they too were attacked by the mob. There can be no better evidence than this that the police who tried to intervene was also fired upon and their aim was only to do the maximum hurt to the Muslims who were at the receiving end at the hands of the rioters. The witnesses, examined before the trial court, were the natural witness and their presence at the place of occurrence cannot be doubted in any manner. Their presence at the place of occurrence has been established beyond the shadow of all reasonable doubts and despite the witnesses being cross-examined in details, no abnormality would be pointed out to hold that evidence was inconsistent, regarding manner, time and magnitude of the offence.
29. In view of the above discussions, we are of the view that the prosecution has proved the charges against all the appellants beyond the shadow of all reasonable doubts. Accordingly, the judgment of conviction and order of sentence is affirmed and both the appeals are dismissed. Appellant No. 2 Naro @ Naresh Yadav of Cr. Appeal no. 352 of 2005 (DB) is on bail, his bail bond is cancelled and he is directed to surrender before the court below to serve out the sentences. The court below is also directed to take coercive steps to take him into custody. Rest of the appellants are in custody, so they will serve their sentences.
(Shyam Kishore Sharma, J.) Sheema Ali Khan, J. :- I agree (Sheema Ali Khan, J.) Patna High Court, Patna Dated 19th September, 2011.
Avin/N.A.F.R.