9911796707
TMI Blog1997 (2) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... The complainant's side is Dom by caste. It was not disputed during the arguments that Dom is a Scheduled Caste. The prosecution case is that a marriage party from the complainant's village Birlagaon Talla was going to village Pinna. It had to pass through village Kafalta Malla. The marriage party, consisting of about 40 persons, reached the village Kafalta Malla at 5 p.m. There 4 women accused Nos. 29 to 32 met the marriage party near the house of accused No. 13, Lachman Singh Bangari, i.e., in the beginning of the village. These women stopped the doli of the bridegroom and asserted that these Doms could not take their bridegroom on a doli in front of the house of Thakurs and Brahmins. The complainant's side replied that when Bahrainis and Thakurs could do it, the Doms had also right to do it. Then these women shouted for their men folk of the village and all the male accused, along with others, came at the spot; Nail there were 70 to 80 persons, and they were amend : with lathis, dandas, stones. When the marriage party reached near the house of one Nari Ram, PW-8 a resident of this village one Khima Nand Fauji attacked Diwani Ram, of the marriage party, with a knife, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t guilty. The four women accused merely said that they did not know anything about the occurrence. 5. The accused Kunwar Singh son of Hayat Singh, Harish Chandra, Trilok Singh son of Hayat Singh, Khushal Singh, Bishan Datt, Madhava Nand, Bachey Singh, Deo Singh, Jasod Singh, Gosain Singh and Nardeo pleaded that they were not at the spot. 6. Accused Hari Datt, Jai Singh alias Jasod Singh, Ram Singh son of Daulat Singh, Trilok Singh son of Udai Singh, Kunwar Singh son of Param Singh and Aan Singh did not raise any particular defence. 7. Accused Dan Singh, Indra Singh, Chandra Mani, Khiali Ram, Jagdish Chandra, Lachham Singh Bangari Jeet Singh and Nardeo raised the defence that on the date of occurrence, there was a least in the village at the house of Khilai Ram accused. His brother's marriage party had returned on the same day. There were quite a number of invitees in the feast and Khima Nand deceased was sent to bring pan and cigarettes for the invitees. They had stated that in the village there is a temple of Badri Nath and the custom is that every person gets down from his vehicle or carrier and walks on foot in the village boundary. 8. Accused Kishan Singh and Ram Singh son ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racture of mandible. 10. The matter was reported by Narendra Prasad, PW-1 to Patwari Narain Singh Khetri because under Section 2 of the Tehri Garhwal Revenue Officials (Special Powers) Act, 1956 the Patwari had been invested with powers of an officer in charge of a police station. This report was lodged the same night at 10 p.m. whereupon the Patwari recorded the statements of Narendra Prasad, PW-1, and Pitamber, PW-2, at his office. The Patwari then sought help of one Devi Dutt Satti (PW-13) who was the Patwari of another circle. Both of these Patwaries then reached the place of incidence at 1.30 a.m. in the night and found Nari Ram, PW-8's, house burning and also saw some dead bodies. Thereafter report was made by Narain Singh to the higher officers while Devi Dutt Satti examined PW-3, Ganga Ram and PW-8, Nari Ram amongst others and also prepared the site plan. Inside the house of Nari Ram five burnt bodies were found. In the courtyard of the house one half burnt body of Kishan Ram was found. Other bodies were found in the nearby fields. 11. After the initial investigation was made by the local Patwaries, the investigation was transferred to the regular police and then to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly showed that respondent No. 1, Dan Singh, respondent No. 2, Indra Singh, respondent No. 10, Ram Singh son of Parvat Singh, respondent No. 14, Jeet Singh; respondent No. 19, Trilok Singh son of Hayat Singh and respondent No. 20, Kishan Singh were members of a unlawful assembly, the object of which was not to let the bridegroom pass on doli and then to kill and burn the Doms who did not heed the accused and one of whom had injured Khima Nand. It was held that charges against them under Section 4(iv) and (x) of the Protection of Civil Rights Act, 1955 as well as charges under Sections 147 302/149 436/149 323/149 and 307/149, IPC, stood established and the Judge proposed to sentence them to imprisonment for life. The acquittal of four lady accused, namely, respondent No. 29, Rajmati, respondent No. 30, Jaintuli Devi, respondent No. 31, Jhapri Devi and respondent No. 32, Mana Devi under Section 4(iv), (x) and 7 of the Protection of Civil Rights Act, 1955 was proposed to be set aside and they were to be sentenced to undergo simple imprisonment for one month each and to pay a fine of Rs. 100/- each. 17. Thus while both the learned Judges agreed on the acquittal of 22 of the accused ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh son of Hayat Singh, Smt. Rajmati, Smt. Jaintuli Devi. Smt. Jhapari Devi and Smt. Mana Devi respondents are on bail. They need not surrender. Their bail bonds are discharged. Jeet Singh and Kishan Singh respondents are also on bail. They shall be taken into custody forthwith to serve out the sentence awarded to them. 19. Special leave petition was filed by the State against all the 32 accused. Vide order dated 21st July, 1989, leave was not granted in the case of the four ladies, namely, respondent Nos. 29 to 32 and their acquittal has become final. Leave was granted qua the other 28 accused. 20. Before dealing with the rival contentions of the parties it will be appropriate to note that as per the record of this Court, during the pendency of this appeal four of the respondents, namely, Har Datt, respondent No. 3, Trilok Singh, respondent No. 16, Madhavanand, respondent No. 17 and Nar Dev, respondent No. 27, have expired. The appeal against them, therefore, abates. 21. At the outset it was sought to be contended on behalf of the respondents that the appeal against the 22 respondents, qua whom the States appeal was dismissed by the Division Bench of B. N. Katju and Rajeshwar Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be reheard and decided by a larger Bench of Judges. This was an option which, under the proviso, was also open for any one of the two Judges, namely, B. N. Katju and Rajeshwar Singh, JJ. to exercise, but they choose not to do so. What is clearly evident is that the appeal is finally disposed of by the judgment and order which follows the opinion of the third Judge. This being so special leave petition could only have been filed after the appeal was disposed of by the High Court vide its final order dated 19th May, 1988. Even though the said order purports to relate only to ten out of thirty-two accused the said order has to be read along with the earlier order of 15th April, 1987 and, in law, the effect would be that the order dated 19th May, 1988 will be regarded as the final order whereby the appeal of the State was partly allowed with only two of the thirty-two accused being convicted under Section 325 read with Section 34, IPC, while all the other accused were acquitted. 25. Coming to the merits of the case the appellant has contended that all the 28 respondents, in respect of whom the special leave has been granted, should have been convicted of the charges framed against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding the concurrent findings of fact arrived at by the Courts below, this Court would not hesitate in coming to a different conclusion. It is for this reason that the evidence of witnesses and the other materials on record have to be carefully considered and examined before this Court can come to the conclusion that the prosecution was able to prove its case against all or some of the accused. 28. What has to be considered in this case is whether there was any unlawful assembly at the place of occurrence and, secondly what was the common object of the said assembly and, particularly lady, who were the members of the said unlawful assembly. It is only after the Court comes to the conclusion that the respondents, or any of them was member of such unlawful, assembly who shared the common object of killing the Doms can they be convicted even if no overt act, can be assigned to any one of them. 29. Before examining the evidence of the eyewitnesses we may note the undisputed facts. On 9th May, 1980 an occurrence took place in the village of Kafalta Malla. Most of the residents of the said village were Thakurs of Brahmins. The only house of a Scheduled Caste in that village was that of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the doli was stopped. Nevertheless as per the evidence of all the eye-witnesses, a large number of villagers had gathered there and they had with them lathis and sticks. According to the explanation to Section 141, IPC an assembly which is not unlawful when it assembles may subsequently become an unlawful assembly. As observed by this Court in Lalji v. State of U.P. 1989 CriLJ 850, that common, object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behavior of the assembly at/of before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case . What has happened in the present case is precisely what has envisaged in the explanation to Section 141, IPC. With Khima Nand being injured, all hell broke loose. A cry was raised that the Doms should be burnt and killed, and this is precisely what happened. The marriage party was assaulted by the villagers. Six of the members of the marriage party were burnt, five of them having been locked inside the house of the only Dom resident of the village whose house was also burnt. Eight others were pursued and then mercilessly beaten and were ki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or exaggeration in the testimony of the eye-witnesses that should not be a ground to reject their evidence in its entirety. In the cases of rioting, where there are a large number of assailants and a number of witnesses, it is but natural that the testimony of the witnesses may not be identical. What has to be seen is whether the basic features of the occurrence have been similarly viewed and/or described by the witnesses in a manner which tallies with the outcome of the riot, viz., the injuries sustained by the victims and the number of people who are attacked and killed. 33. Before We deal with the testimony of these witnesses, it will be important to bear in mind that in the present case the conviction is being sought under Section 302, IPC with the aid of Section 149: IPC: The two essential ingredients of this section are that there must be a commission of an offence by any member of unlawful assembly and that such offence-must be committed in prosecution of common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. It is also a well-settled law (see Masalti v. State of Uttar Pradesh [1964] 8 SCR 133) that it is not neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in Masalti's case [1964] 8 SCR 133 (supra), and which would be applicable here, is that where a Court has to deal with the evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by 2/3 or more witnesses who give a consistent account of the incident, in a sense the test may be described as mechanical; but it cannot be treated as irrational or unreasonable . 36. It is in the background of the aforesaid principles that we now proceed to examine the testimony of the eye-witnesses, in order to determine as to which of the respondents could be stated to have been a part of the unlawful assembly whose common object was to kill the members of the marriage party. 37. Out of the fourteen people who had been killed, six of them were burnt. This incident took place when PW-8 Nari Ram's house was burnt in which five of the victims had been locked in. It will be appropriate, therefore, to determine, if possible, as to which of the respondents were responsible for this act. Out of the seven eyewitnesses PW-1 Narendra Parsad and PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rning of his house if he did not mention to the Investigating Officer the names of those persons who had set his house on fire, the same cannot be regarded as surprising. As already noticed, Nari Ram's was the only Scheduled Caste family in the village consisting of Thakurs and Brahmins. These Thakurs and Brahmins had attacked the marriage party of the Doms and had killed fourteen of them. If, due to fear, no assailants or attacker was named by Nari Ram to the Investigation Officer on the following day, the same is not unexpected. We see no reason to disbelieve his evidence. The persons identified by him in his evidence as being responsible for setting the house on fire have also been named by the other witnesses. Apart from PW-1 and PW-7 who had named all the respondents as being the assailants, respondents Dan Singh, Ram Singh, Jasod Singh and Gusain Singh had been identified by PW-8 and other eye-witnesses also as being part of the unlawful assembly. Other eyewitnesses who had identified these four persons as being part of the unlawful assembly, though they have not been specifically named as being the persons who set Nari Ram's house on fire, are PW-2, PW-3, PW-5 and PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng some residents of nearby villages who had assembled there. Though these fifty to sixty people are alleged to have taken part in the attack on the marriage party, Narendra Parsad named only the respondents as being part of the said assembly of fifty to sixty people who had taken part in the riot which had ensued after Khima Nand had been injured. PW-1 Narendra Parsad further deposed that after Khima Nand was injured, all the accused present in the Court came and said do not leave them alive, kill them and these people attacked on the processionists with lathis, knives, sticks and stones. PW-1 further stated that some of the processionists, in order to save their lives, entered into the house of PW-8 Nari Ram and some other processionists ran to the fields. He also deposed to the burning of the house of Nari Ram by the accused persons as a result of which five processionists were burnt to death inside the house and one died in the courtyard with half of his body having been burnt. PW-1 further stated that the respondents chased those processionists who had ran away towards the fields and beat them with lathis, sticks and stones. As a result of this, some of the processionists died ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort in which the entire incident which had occurred was mentioned in which all the respondents were implicated. This report was given to the Patwari at 10 p.m. on the night of the incident. The mentioning of the names of all the respondents in this report soon after such a serious incident had occurred, does clearly indicate that PW-1 Narendra Parsad must have been able to identify at least some if not all the persons named therein. 44. The evidence of these two witnesses, i.e., PW-1 Narendra Parsad and PW-8 Nari Ram is fully corroborated by the evidence of the other eye-witnesses. In the evidence of Bali Ram PW-9 which corroborates the testimony of PW-1, he has. named Jeet Singh respondent No. 14 and Kishan Singh respondent No. 20 as being the persons who assaulted him. To this extent the High Court has accepted his evidence and that is why these two respondents have been convicted and sentenced under Section 325/34, IPC. We, however, see no reason as to why testimony of Bali Ram as a whole should not have been accepted. The incident, according to him, had occurred in the manner stated by the other eyewitnesses and PW-1 in particular. That his evidence does not suffer from any exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tness is not worthy of acceptance because we have already found as a fact that the house of Nari Ram was set on fire by some of the respondents. It is unbelievable even if the marriage party had crackers with them, that the same could be the cause of Nari Ram's house being put on fire and that also in such a manner that five of the members of the marriage party would continue to remain inside and not be able to escape from the house. The fact that five members of the marriage party were burnt inside the house clearly shows that the door of the house was locked from outside preventing the five persons, stranded inside, to come out. This by itself clearly demonstrates the falsity of the testimony of DW-6 Harak Singh. 47. Now remains the statement of DW-4 Chandan Singh Rawat. This witness was a Physical Training Teacher in the Government Higher Secondary School in which the respondent No. 6 Harish Chandra was a student of class IX. This witness stated that on 9-5-1980 examination of Physical Training was going on. On that day the physical training test was held from 3 p.m. to 6 p.m. and that the respondent Harish Chandra remained in school up to 6 p.m. The distance of the school f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Inder Singh, respondent No. 7 Chandramani, respondent No. 8 Kunwar Singh, respondent No. 9 Khyali Ram, respondent No. 10 Ram Singh, Respondent No. 11 Jagdish Chandra, respondent No. 12 Bishan Dutt, respondent No. 13 Lachhman Singh, respondent No. 14 Jeet Singh, respondent No. 15 Ram Singh s/o Daulat Singh, respondent No. 19 Trilok Singh, respondent No. 20 Kishan Singh, respondent No. 23 Jasod Singh, respondent No. 24 Gusain Singh and respondent No. 25 Kunwar Singh under Sections 147 302/149 436/ 149 323/149 and 307/149, IPC is set aside and all these accused are found guilty and convicted under the aforesaid sections. They are sentenced to undergo rigorous imprisonment for one year under Section 147, IPC, imprisonment for life under Section 302/149, IPC, rigorous imprisonment for seven years under Section 436/149, IPC, rigorous imprisonment for nine months under Section 323/149, IPC and rigorous imprisonment for seven years under Section 307/149, IPC. All the sentences will run concurrently. These accused persons, who are on bail, shall be taken into custody to serve out the sentences. The appeal in respect of other accused is dismissed and they are discharged from the bail bonds, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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