Vs. State of Bihar  INSC 343 (8 September 1993)
K. Jayachandra (J) Reddy, K. Jayachandra (J) Ray, G.N. (J)
1994 SCC Supl. (1) 551 JT 1993 (5) 174 1993 SCALE (3)663
Judgment of the Court was delivered by K.JAYACHANDRA REDDY, J.- Both these
appeals are directed against the judgment of the Patna High Court confirming
the convictions and sentences awarded by the trial court against the
appellants. In the trial court as many as 13 accused were tried for offences
punishable under Sections 148, 307, 326, 302/34 and 302/149 IPC. The trial
court convicted all of them under Sections 148 and sentenced each of them to
undergo RI for two years. Indradeo Rai, A- 1, Doman Rai, A- 9 and Raj Ballav Rai,
A-10 were also convicted under Sections 302/34 IPC and sentenced to
imprisonment for life.
Rai, A-5 and Chandradip Rai, A-6 were also convicted under Sections 307 and 324
IPC and were sentenced to undergo RI for seven years and two years
respectively. Basantlal Rai, A- 11 and Anuplal Rai, A-] 3 were also convicted
under Sections 307 and 326 IPC and were sentenced to undergo RI for seven years
on each count. The sentences were directed to run concurrently. The appeal
filed by them was dismissed by the High Court. During the pendency of the
appeal, Chhotan Rai, A-7 died. Out of the remaining 12 convicted accused, Kashi
Rai, A-2, Satrughan Rai, A-3, Sukhdeo Rai, A- 4 and Gopal Rai, A-8 have
preferred Criminal Appeal No. 115 of 1984. The remaining accused have preferred
Criminal Appeal No. 164 of 1984.
prosecution case is as follows: The accused, the main prosecution witnesses and
the deceased Maksudan belong to Rasalpur Village. On May 23, 1968 PW 6, brother
of PW 15, went to see his sweet potato field in the morning and he found Al 1
with his men taking out sweet potato from his field to which he objected. A- 11
and his men assaulted PW 6 and took away sweet potato. PW 6 went to Samastipur
to lodge a complaint on the same day. On May 24, 1968 in the morning PW 15 had gone to
river to take his bath. He found a mob consisting of about 200 to 250 persons
collected at Bariyapur Ghat and some of them were crossing the river on boat.
PW 15 became suspicious and went to PW 11 and informed him about the same.
Subsequently he learnt that the mob was collecting near Kati Asthan with an
intention to loot the shops of villagers of Rasalpur. PW 11 called PWs 3, 7 and
9 and the deceased and they all started for Kali Asthan. There they found a mob
of about 200 to 250 persons and they tried 553 to persuade the mob to go away
but the mob started pelting brickbats on them due to which PW 15 and others
tried to move back but PW 15 and the deceased were surrounded by the mob. A- 11
assaulted PW 15 with a bhala on his chest. A-5 assaulted him with a bhala on
the lower portion of his leg.
assaulted him on his right knee with gupti. A-13 assaulted him with a bhala on
his head and also hit him with his gun. Meanwhile the deceased was also
assaulted and he fell down. Thereafter the mob went away. PW 15 could not say
as to which of the assailants assaulted the deceased.
the mob left, the deceased was removed from the place of assault to the Pipal
tree. PW 17, the Officer-incharge of the Mohiuddin Nagar Police Station
received information at about 8.15 a.m.
through a constable PW 5. PW 17 went to Rasalpur Village and he also saw some persons
found PW 15 and the deceased lying under the Pipal tree and the deceased was
unconscious. He recorded the statement of PW 15 which is the first report. In
the meantime, the deceased died. PW 17 inspected the scene of occurrence and
there he found marks of trampling and footprints and also fresh copious blood
in the field.
a short distance of 50 to 60 yards from the place of occurrence, there are
other houses. In the house of Shri Sah the dead body of Ram Baran Rai belonging
to the accused party was found. One Mishri Thakur, also belonging to the
accused party, died during the same occurrence and his dead body was found in
his house and Indradeo Rai, A-1 also received injuries. PW 17 sent the dead
body of the deceased Maksudan for postmortem and PW 15 for treatment. PW 18,
the Doctor examined PW 15 and found two penetrating wounds, one incised wound
and two firearm injuries on him. PW 19 conducted the postmortem on the dead
body of Maksudan and he found five incised wounds and one lacerated wound which
was on the head and which resulted in the fracture of the skull and proved
fatal. The prosecution examined 19 witnesses.
them PW 15 is the main injured witness and informant in the case and others are
PWs 1, 3, 7, 9 and 11.The accused denied the offence and they stated that the
entire occurrence took place at Village Mohanpur and not at the place as
alleged by the prosecution. A-1 lodged a case against the prosecution party
stating that the prosecution party caused the death of Mishri Thakur and Ram Baran
Rai and also caused injuries to him. PW 17 registered a case on the basis of
the report given by A-1. He also held inquest on the dead bodies of Mishri Thakur
and Ram Baran Rai and also got A-1 examined. Two defence witnesses were
examined on behalf of the accused to prove their case.
Sessions Court, however, accepted the prosecution case and held that the accused
were the aggressors and accordingly held them guilty and the same has been
upheld by the High Court.
the above-stated facts, it can be seen that the occurrence did take place on May 24, 1968 at about 9 a.m. during which the deceased Maksudan on the side of the
prosecution party died and PW 15 received several injuries and on the accused
side, Mishri Thakur and Ram Baran Rai died and A-] also sustained injuries. The
main question that arose for consideration before the trial court as well as the
High Court was as to who were the aggressors.
15 is the main witness who was injured and who gave the report. In the FIR,
though he mentioned the names of some of the accused, he did not mention as to
who attacked the deceased and he mentioned only the names of his assailants.
The other main eyewitnesses admittedly were examined a week 554 after the
occurrence. Each party tried to throw the blame on the other. The High Court
relying on the evidence of PWs 1, 3, 7, 9 and 15 held that the accused persons
collected themselves into a mob and they commenced the fight. Shri Justice Uday
Sinha, one of the members of the Division Bench of the High Court, however,
wrote a separate but concurring judgment. He gave a finding that the parties
fought and the crucial matter to be found out is as to who started the fight.
must be noted that the prosecution did not explain as to how the two persons on
the side of the accused died and how A-1 received injuries. The learned Judges
of the High Court proceeded on the footing that though there was a fight
between the two groups, it was the accused party who started the fight and
therefore it alone must be treated as the aggressors and consequently must be
held guilty. But taking into consideration all the facts and surrounding
circumstances of the case to us it looks as though it was a free fight where
both the parties collected into groups with the determination to fight. In such
a situation as to who started the fight is not very material.
such a situation though it can be held that there was an unlawful assembly to
the extent of committing rioting but the common object of every member of the
unlawful assembly cannot be said to commit murder. In a case of free fight of
such nature, the assailants should be liable for their individual acts and it
may be unsafe to convict all of them by applying Section 149 for the offence of
murder. In the instant case, PW 15 who gave the first information report has
not mentioned any of the accused as having attacked the deceased. It is only
week later, the other interested witnesses have come forward with the version
that A-1, A-9 and A-10 attacked the deceased Maksudan. But it is highly unsafe
to accept this version. A-] also gave a report almost immediately naming some
of the prosecution witnesses as the assailants of the two deceased persons Mishri
Thakur and Ram Baran Rai and in the version given by the prosecution, in the
instant case, A- 1 is named as the principal assailant as far as attack on the
deceased Maksudan is concerned. We think it is highly unsafe to convict A-1,
A-9 and A-10 for the offence of murder of deceased Maksudan under Sections
302/34 IPC. However, their presence in the unlawful assembly cannot be doubted.
Now, coming to the attack on PW 15, both the courts below have held A-5, A-6,
A- 1 and A-13 guilty under Sections 307, 324 and 326 IPC. Learned counsel
appearing for the appellants could not persuade us as to why the same cannot be
15's evidence is corroborated by the medical evidence and he has also mentioned
the names of these accused in the FIR which was promptly given. PW 15 will be
the last person to leave out his own assailants and implicate others falsely.
we set aside the conviction of Indradeo Rai, A-1, Doman Rai, A-9 and Raj Ballav
Rai, A-10 under Sections 302/34 IPC and sentence of imprisonment of life
awarded thereunder. Their conviction under Section 148 IPC and the sentence of
two years' RI is, however, confirmed.
the other convictions and sentences awarded against the other appellants are
also confirmed. But the ' sentence of sevens years' RI awarded against A-5 and
A-6 under Section 307 IPC is reduced to five years' RI. Likewise the sentence
of seven years' RI each under Sections 307 and 326 IPC awarded against A- 11
and A-13 is reduced to five years' RI under each count. All the sentences shall
run 555 concurrently. Subject to the above modification of sentences, both the
appeals are disposed of.