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Monday, September 23, 2013

One accused is acquitted due to non-mention of his name in FIR and also no attributions or overt acts against him ; Death penalty converted in imprisonment to life = Principle of prudence, enunciated by Bachan Singh is sound counsel on this count which shall stand us in good stead – whenever in the given circumstances, there is difference of opinion with respect to any sentencing prop (sic)/rationale, or subjectivity involved in the determining factors, or lack of thoroughness in complying with the sentencing procedure, it would be advisable to fall in favour of the “rule” of life imprisonment rather than invoking the “exception” of death punishment.”= In the present case, even if we decide to ignore the similar deficiencies in the prosecution, and look into the oral evidence which has come on record, the case of prosecution against appellant no: 2, Naresh Paswan is rather weak. His name was not mentioned in the FIR. PW-2 Birendra Singh who is an injured witness, though states in the dock that he had seen the appellants slitting the throats, he failed to identify Naresh Paswan in Court. None of the other witnesses including PW-3 Lawlesh Singh, who is another injured witness, have attributed any role to him. None of them said that he was a member of MCC. It is material to note that Madhusudan who was named at Sr. No.5 in the FIR also faced a similar allegation. It was PW-2 Birendra Singh who named Madhusudan as one of the accused who slit the throats of the deceased, but had failed to identify him in the dock. In the absence of other witnesses throwing any light on his participation in the occurrence, Madhusudan was acquitted by the learned designated Judge. = (i) In the circumstances, Crl. Appeal No.791 of 2009 is allowed in part. The judgment convicting appellant no.2, accused Naresh Paswan is set- aside, and he will stand acquitted. He is acquitted of the offences for which he was charged, and it is ordered that he be released forthwith if not required in any other case. (ii) As far as appellant nos.1 and 3, accused Vyas Ram and Bugal Mochi are concerned, although their conviction under the offences for which they were charged is upheld, the death sentence awarded to them is commuted to imprisonment for life, which is to mean the rest of their natural life. (iii) Consequently, the Death Reference Case (R) No.2 of 2011 filed by State of Bihar is hereby dismissed.

          published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40818
                                                        REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       Criminal Appeal No.791 OF 2009

Vyas Ram @ Vyas Kahar & Ors.                 ...     Appellants

                                   Versus

State of Bihar                                     ...        Respondent

                                    With

                    Death Reference Case (R) No.2 of 2011


State of Bihar                                     ...       Applicant

                                   Versus


Vyas Ram @ Vyas Kahar & Ors.                 ...        Respondents



                          J  U  D  G  E  M  E  N  T



H.L. Gokhale J.

            This Criminal Appeal No. 791/2009 filed by Vyas Kahar alias Vyas-
jee, Naresh Paswan and Bugal Mochi alias Bugal Ravidas
 seeks  to  challenge
the Death sentence awarded to them by the Sessions  Judge-of  the-Designated
Court, Gaya, State of Bihar, by his judgment and order dated  11.02.2009  in
C.R Case No.430 of 1992 arising out of Tekri PS  Case  No.19/1992.
All  of
them have been convicted and sentenced to death under Section  3(1)  of  The
Terrorists and  Disruptive  Activities  (Prevention)  Act,  1987  (hereafter
referred to as  TADA),  and  for  life  imprisonment  on  each  count  under
Sections 302 read with 149, 364 r/w 149, 307 r/w 149 of  Indian  Penal  Code
(IPC in short), for rigorous imprisonment for 10  years  under  Section  436
r/w 149 IPC, and rigorous imprisonment for 1 year under Section 435 r/w  149
IPC.  The Death Reference Case (R) No.2 of 2011 arises out of the  award  of
death sentence made by the said learned Judge under Section 366 of the  Code
of Criminal Procedure, 1973 (Cr.P.C.) r/w Section 19 of TADA.

The initiation of prosecution
2.          As per the First  Information  Report  (FIR)  dated  13.02.1992,
there was a gruesome carnage in which 35 persons were killed, and 7  persons
were injured.
All of them belonged to the  Bhumihar  community  of  village
Bara, police station Tekari, District Gaya, State of  Bihar.
The  FIR  was
lodged on the basis of  the  fard-bayan  of  the  informant  Satendra  Kumar
Sharma who had stated that at 9:30 pm on 12.02.92, when  the  informant  was
preparing to go to bed, he heard sounds of explosions and  firing.   He  saw
the village ablaze.
About 10-15 unknown people knocked at the door  of  his
house violently, and told him that they had come to  pick  up  one  Dayanand
and Haridwar Singh, as according to them they were  hidden  in  one  of  the
houses.
When the informant opened the door, he was  forcibly  taken  to  the
north-eastern side of the village, near a  temple.  He  found  many  of  his
relatives sitting there, and their hands  were  tied  at  the  back  by  the
extremists.  
Soon thereafter 5-6 people including  one  of  the  appellants,
viz. Bugal Mochi came there, and told the  other  extremists  to  bring  all
those people near  the  canal  since  their  leader  one  Kirani  Yadav  had
directed so. The ladies were sent home, and these  people  were  taken  near
the canal.  The informant  claims  that  he  had  overheard  the  extremists
saying that they did not  intend  to  spare  any  person  belonging  to  the
Bhumihar caste. Some firing was  heard  from  the  west,  and  some  of  the
extremists, including Bugal Mochi fearing  the  arrival  of  police  started
slitting the necks of people.
The  informant  somehow  managed  to  escape,
though he lists some 37 persons whose dead bodies he claims  to  have  seen.
He also mentions the name of 8  injured  people.
The  extremists  retreated
soon  after  the  arrival  of  police,  shouting  slogans  of  “MCC  (Maoist
Communist  Centre)  zindabad”.
According  to  him  there  were  about  500
extremists in all, out of  whom  some  300  were  armed  with  firearms  and
explosives, and many were in police uniform.  
He named 34 people in the  FIR
including two of the appellants viz. Vyas Ram and Bugal Mochi, but the  name
of Naresh Paswan is not mentioned.
3.          On the statement of the informant,  the  police  registered  the
case under Sections 3, 4 and 5 of TADA, and under Sections  147,  148,  149,
302, 307, 326, 436, 452, 341 and 342 of IPC.
During the investigation,  many
arrests were made, and the  confessional  statement  of  Bihari  Manjhi  was
recorded.
After  further  investigation  the  charge-sheet  was   submitted
against as many as 119 persons, out  of  whom  13  were  brought  to  trial,
showing the remaining persons as absconders.

Proceeding of the trial at the earlier stage
4.           The learned Designated Judge who conducted  the  trial  of  the
Case C.R. No.430  of  1992,  by  his  judgment  and  order  dated  8.6.2001,
acquitted four of these  accused  viz.  Nanhey  Yadav,  Nanak  Teli,  Naresh
Chamar  and  Ramashish  Mahto.
Four  other  accused  viz.  Krishna  Mochi,
Dharmendra Singh alias Dharu Singh, Nanhey Lal Mochi and  Veer  Kuer  Paswan
alias Veer Kuer Dusadh were sentenced to death under Section 3(1)  of  TADA,
and for life imprisonment under Section 302 r/w 149  of  IPC.   
Their  death
sentence was confirmed by a bench  of  three  judges  of  this  Court  by  a
majority of two versus one, on 15.04.2002 in Criminal Appeal No.761 of  2001
read with Death Reference No.1 of 2001 i.e.  Krishna  Mochi  and  Others  v.
State of Bihar reported in 2002 (6) SCC 81 (wherein the Senior Judge on  the
bench viz. Hon’ble Mr. Justice  M.B.  Shah,  rendered  a  separate  judgment
acquitting Dharmendra Singh and commuting the death sentence  of  the  other
three to life imprisonment).
5.           Another group of accused facing  the  said  trial  viz.  Bihari
Manjhi, Ramautar Dusadh alias  Lakhan  Dusadh,  Rajendra  Paswan  and  Wakil
Yadav though convicted  under  Section  3(1)  of  TADA,  were  sentenced  to
rigorous imprisonment for  life  on  each  count.  
Bihari  Manjhi,  Ramautar
Dusadh and Wakil Yadav  filed  one  appeal,  and  Rajendra  Paswan  filed  a separate one. 
Both these appeals were  heard  together  and  allowed.  
Their
conviction and sentence was set aside by this Court in a unanimous  judgment of the same bench of three judges rendered on the same day  i.e.  15.04.2002 in Bihari Manjhi and Others v. State of Bihar and Rajendra Paswan  v.  State of Bihar, reported in 2002 (4) SCC 352.

Acquittal of three other accused in the present proceeding
6.          Three other accused viz. Tyagi  Manjhi  alias  Tyagi-jee,  Vijay
Yadav and Madhusudan Sharma, were tried along with  the  present  appellants
subsequently, as all of them were absconding at  the  time  of  the  earlier
mentioned proceeding. The charges were framed against them on  15.04.04.  As
reflected in the presently impugned judgment  and  order,  all  the  accused
pleaded to be not guilty, and took the defence  of  false  implication.   At
the end of the trial, the above  referred  Tyagi  Manjhi,  Vijay  Yadav  and
Madhusudan Sharma were acquitted for want of sufficient evidence. The  three
appellants herein were, however, held guilty and sentenced to death  amongst
other punishments as mentioned earlier.
7.          The designated court observed that as far as the accused,  Tyagi
Manjhi and Vijay Yadav were concerned, both of them had been  named  in  the
confessional  statement  of  Bihari  Manjhi  but  that  confession  was  not accepted to be reliable by the Supreme Court in Bihari Manjhi and Others  v. State of Bihar (supra). 
The aforesaid confessional statement  had  not  been
produced before  Chief  Judicial  Magistrate  while  producing  the  accused Bihari Manjhi before him, and the said statement was produced for the  first time at the time of the trial i.e. after a lapse  of  five  years  from  the date of its  alleged  recording.  
Thus  it  was  hit  by  rule  15  of  TADA (Prevention) Rules, 1987. 
In  the  absence  of  other  evidence,  these  two
accused were therefore acquitted, as it was held that  the  prosecution  had not been able to prove the charges against them. 
As far  as  Madhusudan  was
concerned, he was named in the FIR at  serial  no.5.  The  only  prosecution witness, 
PW2, Birendra Singh who had named him as one  of  the  accused  who had slit throats of the deceased, had failed to identify him  in  the  dock.
There was no other evidence to throw light  on  his  participation  in  this
incident. Madhusudan was also accordingly acquitted.
Prosecution case against the present appellants
8.          Appellant No.1 Vyas Ram who was named in the FIR at serial  no.1
had been identified by PW-2, Birendra Singh. He had identified  him  in  the
dock also. He had also been identified by PW-16  Brajesh  Kumar,  and  PW-17
Bunda Singh who had identified all the appellants in  the  dock.   Appellant
No.3 Bugal Mochi had been identified by PW-2, PW-3 Lawlesh Singh  and  PW-15
Ram Sagar Singh apart from PW-16 and PW-17.  Appellant  No.2  Naresh  Paswan
was also identified by all of these witnesses except PW-3.
9.          The evidence of these  prosecution  witnesses  was  held  to  be
sufficient to show their participation in the crime since they were held  to
be members of an unlawful  assembly,  and  were  sentenced  to  death  under
Section 3(1) of  TADA,  and  for  life  imprisonment  on  each  count  under
Sections 302 r/w 149, 364 r/w 149, 307 r/w 149 of I.P.C,  and  for  rigorous
imprisonment for 10 years  under  Section  436  r/w  149  IPC  and  rigorous
imprisonment for 1 year under Section 435 r/w 149 IPC.

Submissions by the appellants
10.          The  main  grounds  raised  by  the  learned  counsel  for  the
appellants Ms. Kamini Jaiswal to challenge the impugned order  are  the
 non
application of TADA in the present case, the effect of the  amended  Section
20A of TADA, unreliable investigation especially in the  light  of  the  non
examination of the informant, and the belated recording of the statement  of
the witnesses. The learned counsel for the appellants, has referred  to  the
supplementing opinion of Katju J. in Vijay Kumar Baldev Sharma v.  State  of
Maharashtra reported in 2007 (12) SCC 687, and  submitted  that  after  TADA
came to an automatic end on  24.05.1995,  and  when  there  was  no  further
extension of the period for  which  the  act  would  remain  in  force,  the
continuation of the   proceeding thereafter was  clearly  violative  of  the
constitution.
11.         It was further submitted that the prosecution had not been  able
to prove the notification of the notified area  as  required  under  Section
2(f) of TADA, and therefore, the constitution of the  designated  court  for
this area under Section 9(1) of the act was bad.
Section 9(1) of  the  TADA
lays down that “The Central  Government  or  the  State  Government  may  by
notification in the official  Gazette  constitute  one  or  more  designated
courts, for such an area or areas or for such case  or  class  or  group  of
cases as may be specified in the Notification.” It is, therefore,  necessary
to prove that the area/district where the occurrence took place is  notified
under Section 2(f) to invoke TADA.
12.         The learned counsel for appellants also relied
 on  the  amended
Section 20A which came into existence on 22-05-1993.  According  to  Section
20A(1) no information in the form of FIR  can  be  recorded  by  the  police
without prior  written  approval  of  the  District  Superintendent  of  the
police.  
That is the condition precedent for recording of the  FIR,  and  no
cognizance of an offence can be taken without compliance of Section  20A(1).
 It was contended that in Hitendra Vishnu Thakur  v.  State  of  Maharashtra
reported in AIR 1994 SC 2623, this Court has held that the  amended  Section
20A had retrospective effect.
13.         However, most of these arguments have already been  rejected  by
the relevant observations in the majority judgment of this  Court  in  Death
reference 1/2001, i.e. Krishna Mochi’s case  (supra)  decided  on  15.04.02.
Besides as far as applicability of Section 20A is concerned, the  submission
on behalf of the appellant is not wholly correct.  
In fact  at  the  end  of
paragraph 25 of Hitendra Thakur  (supra),  this  court  has  held  that  the
amendment of 1993 would apply to the cases which were pending  investigation
on 22.5.1993, and in which the challan had not  been  filed  in  Court  till
then. The present case was registered on 13.02.1992,  the  charge-sheet  was
submitted on 12.02.1993, and the cognizance  was  taken  6  days  thereafter
i.e. on 18.02.1993. Thus, all these steps  were  taken  before  coming  into
force of the amendment act.  Therefore,  the  appellants  cannot  claim  the
benefit of the amendment, nor does the case cited  by  them  come  to  their
rescue.
14.         Non-examination of the informant is once again stressed  by  the
appellants in defence. The informant is, as claimed  by  the  appellants,  a
member of Sawarna Liberation Front, and  was  the  accused  in  the  carnage
known as Miyanpur Narsanghar. Non examination of S.I. Ram Japit  Kumar  also
weakens the  prosecution’s  case,  because  according  to  the  counsel  for
appellants he was entrusted with the preliminary investigation, but  neither
the case diary was brought in, nor was he examined.
15.         The learned senior counsel for the State Mr. Rai  on  the  other
hand submitted that the above submission  is  completely  misconceived,  and
reiterated the findings of the Apex Court in para 35  of  Krishna  Mochi  v.
State (supra) viz. that an F.I.R is not a  substantial  piece  of  evidence,
and non-examination of the informant would not entitle the appellants to  an
order of acquittal on this ground alone.  The case  should  be  examined  on
the basis of the evidence led by the prosecution.  The carnage  of  Miyanpur
had taken place after the carnage  in  the  present  case.  The  prosecution
witnesses in the present case had supported the Fard-Bayan. As far  as  non-
examination of Ram Japit Kumar is concerned, it was submitted  that  he  was
directed to investigate the case  under  the  verbal  orders  of  Suptd.  of
Police, Gaya.  However, Ram Japit Kumar never  made  himself  available  for
taking over the investigation of the case, and then  the  investigation  was
consequently entrusted to Suresh Chander Sharma, who had been examined as  a
prosecution witness (PW-21).  This has also been observed in para 36 of  the
judgment in Krishna Mochi (supra).
16.         Furthermore, the appellants have stressed upon the fact that  no
particular role was assigned to them, and in such a  scenario  there  cannot
be any conviction, leave aside the death sentence, for merely being  present
in the unlawful assembly at the place of incident. In Baladin  v.  State  of
U.P reported in AIR 1956 SC 181 a bench of three Judges  held  in  paragraph
19 as follows:-

                 “19.  … 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,
           Indian Penal Code.”

The Court was concerned with a trial of some 57  persons  for  murder  of  6
persons, out of whom 36 were  convicted  under  Sections  148,  201/149  and
302/149 IPC, and 9 of whom were sentenced to death, and  others  were  given
different punishments for the roles assigned to them.  This  court  examined
the evidence, and  upheld  their  sentences  including  death.   Where  some
specific role was attributed to some of the accused like inciting  the  mob,
the court held in paragraph 24 of  the  judgment  that  the  theory  of  the
person being a mere sight-seer will not help them.   However,  at  the  same
time, where the court found  that  four  of  the  appellants  had  not  been
assigned any particular part in the occurrence, nor any overt act  had  been
attributed to them, they were given benefit  of  doubt  and  acquitted.  The
court held in paragraph 28 that “they might possibly  have  been  spectators
who got mixed up in the crowd.”
17.         In Masalti v. State of U.P. reported in AIR  1965  SC  202,  the
accused had brutally killed one Gayadin and four members of his family,  and
then set the bodies on fire in the middle of the field.  This  had  happened
due  to  rivalry  between  two  factions.  F.I.R  disclosed  35  persons  as
assailants and five more persons were added to  the  list  by  a  subsequent
committal order leading to the charges being framed against all 40  persons.
A bench of four judges of  this  Court  did  not  accept  the  defence  that
specific role had not been attributed to the  accused,  and  that  the  mere
presence of the accused  in  the  unlawful  assembly  at  the  time  of  the
incident does not justify the imposition of death sentence.  However,  as  a
rule of prudence, the court fixed the minimum number of witnesses needed  to
accept prosecution case to base a conviction on.  It was emphasised  by  the
court that it was unsafe to rely  on  the  evidence  of  persons  who  spoke
generally without specific reference to the  identity  of  the  individuals,
and their overt acts that  took  place  in  the  course  of  incident.  This
judgment laid down the principle of common  liability  viz.,  that  where  a
crowd of assailants, who were the members of an  unlawful  assembly  proceed
to commit a crime, in pursuance of the common object of  that  assembly,  it
is often not possible for the witnesses to describe the actual  part  played
by each one of them, and when a large crowd of persons  armed  with  weapons
assaults the intended victims, it may not be  necessary  that  all  of  them
have to take part in the actual assault. In that case several  weapons  were
carried by different members of the unlawful assembly, and  an  accused  who
was the member of such  an  assembly  and  was  carrying  firearms  was  not
permitted to take any advantage of the  fact  that  he  did  not  use  those
firearms, though  other  members  of  the  assembly  used  their  respective
firearms.
18.         Thus,  the  defining  ingredient  for  the  involvement  of  the
accused would be the common intention.  Section-149 of I.P.C makes it  amply
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.
Masalti (supra) emphatically brings home 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.   At the same time  we  cannot  ignore  the
law as laid down in Baladin (supra) that if a person is  a  mere  bystander,
and no specific role is attributed to him, he may not come  under  the  wide
sweep of Section 149.
19.         The submission of  the  appellants  which  does  merit  a  close
scrutiny and a thorough examination by the  court  is,  however,  concerning
the  allegedly  faulty  investigation,  especially  the   failure   of   the
prosecution to conduct a  Test  Identification  Parade,  and  the  delay  in
recording the statements of the witnesses which according to  them  rendered
the  entire  alleged  identification  of  the   appellants   doubtful.   The
appellants claim to be entitled to the benefit of doubt as it  is  dangerous
to uphold the death sentence of the appellants on such shaky  evidence.  The
appellants draw support from a judgment in the case of Jamuna  Chaudhary  v.
State of Bihar reported in AIR 1974 SC 1822. In that case benefit  of  doubt
was given to some of the accused in view of the unsatisfactory  material  on
record. At the same time, we must also note that in that very  matter  where
there was evidence of an injured witness, deposing against the accused,  the
same was accepted. The appellants have  also  drawn  the  attention  of  the
court to the fact that a set of persons who were accused in  the  same  case
had been acquitted in  the  case  of  Bihari  Manjhi  and  Others  v.  State
(supra).  However, here the bone of contention  is  with  respect  to  their
participation itself, in the light of the deficiency in  the  investigation.
Those  deficiencies  also  find  a  place  in  Hon’ble  Mr.  Justice  Shah’s
observations in the Krishna Mochi
case (supra).

Deficiencies in the prosecution:-

Non examination  of  Investigating  Officer,  Non  submission  of  his  case
records

20.          Suresh  Chander  Sharma  (PW21)  who   had   taken   over   the
investigation after Ram Japit Kumar, had admitted in his  cross  examination
that the entire investigation had been conducted by Ram Japit Kumar.  PW  21
had not recorded the  statements  of  many  witnesses  including  the  three
chowkidaars who were the first to meet  inspector  Vijay  Pratap  Singh  the
then Station Incharge, and report the incident to him when he  had  come  on
patrolling, and heard the sounds of firing and explosion. The  investigation
conducted by Ram Japit had never been brought on record  nor  was  his  case
diary submitted. PW21 had also admitted that the case  diary  was  not  with
him, and that he had not seen the notification under TADA (para 61). It  was
also admitted that investigation has been done on the oral  instructions  of
the Superintendent of Police without the necessary written orders  from  him
or Director General of Police.
Statement of the SP
21.         According to the  statement  of  the  Superintendent  of  Police
Sunil Kumar, he received  the  information  of  Bihari  Manjhi’s  arrest  on
27.2.1992, and he went there to record the statement. He claims to have  met
Bihari Manjhi and told him to make his statement  without  fear  or  favour,
and Bihari Manjhi did  so.  However,  the  same  officer  was  not  able  to
identify Bihari Manjhi in the Court.   Moreover,  the  police  personnel  of
P.S. Tekari were busy in  making  arrests,  and  a  number  of  V.I.Ps  were
visiting.  So  the  investigation  had  been  entrusted  to  Suresh  Chander
Sharma, Inspector from Chandauti Police Station. Surprisingly, he  does  not
remember whether written permission, to invoke TADA was taken  or  not,  and
whether under TADA the investigation had  to  be  carried  out  only  by  an
officer of rank of DSP or above.
Station in-charge of Police Station Bodh Gaya, Virendra Kumar Singh.

22.         He  admitted that he was an  accused  in  the  murder  case   of
Vasuki Yadav, nephew of Vakil Yadav, (one of  the  accused  in  the  present
case), and had filed a petition before the Supreme Court  for  quashing  the
cognizance taken against him in that case.
23.         Hon’ble Mr. Justice Shah had drawn support  from  the  principle
laid down in Masalti’s case to emphasise the  impossibility  of  basing  the
conviction on such shaky investigation. Such a view  had  been  taken  in  a
catena of other judgments, like Kamaksha Rai v. State of U.P.,  reported  in
1999 (8) SCC 701. These principles were also followed in Binay  Kumar  Singh
v. State of Bihar reported in 1997(1) SCC 283.
24.         The delay in  recording  the  statements  of  witnesses  by  the
Investigating Officer and absence of the  Test  Identification  Parade  were
also instrumental in demolishing the credibility of the  investigation,  and
thus led to Hon’ble Mr. Justice Shah’s dissenting opinion.
Analysis of the evidence on record
25.         In the present case, as  per  the  statement  of  PW  21  Suresh
Chander Sharma the investigation prior to him had been  conducted  by  PW22,
Vijay Pratap Singh who was the sub inspector and  the  officer  incharge  of
Tekari Police station at the time  of  occurrence,  as  Ram  Japit  who  had
originally been entrusted with the investigation had fallen ill. He  further
adds that case diary from para 1- 222 had been  recorded  by  PW22  and  the
rest, from 223 to 538, by himself. He does not know whether  S.P  wrote  any
letter to the government for the invocation of TADA. PW 22 was the  one  who
was the officer incharge of the Tekari P.S, and had gone for routine  patrol
at about 9 p.m. on 12.2.92, when he heard  sounds  of  explosion.  He  heard
from the Mukhia Sideshwar Yadav, whom he met on the way, that explosion  was
taking place in the  north.  On  going  there,  he  met  three  chowkidaars,
Krishna Yadav, Bhola Paswan and Dafadar Ramparwesh Singh who told  him  that
‘partywalas’ had come, and set the village on  fire,  and  were  terrorising
people by firing and exploding bombs. Interestingly, none of  these  people,
through whom the police had come to know of  the  incident,  were  examined.
Their fard bayan was not taken. PW 22 has stated in his deposition  that  he
informed the SP of the gravity of the situation, and  the  SP  came  at  the
place of occurrence with his force and they all proceeded further.  At  this
point of time, they were approached  by  one  Sarwan  Kumar,  who  had  come
running to them, after coming to know that they were  police  officers.  His
hands were tied at his back, he told them that extremists had  come  to  the
village, and had proceeded toward  the  east.  Sarwan  Kumar  was  also  not
examined. The reason given for this by PW22 is that  Sarwan  Kumar  did  not
give the entire account of the happening, and  because  the  entire  village
was on fire. The statements of none of the women who were weeping  near  the
culvert were recorded either. Understandably,  they  were  very  upset,  and
possibly not in the position to give their statements.  However,  this  does
not explain as to why the statements of none of those people from  whom  the
police had originally come to know of the incident, had been  recorded,  and
why the F.I.R was recorded on the Fard  bayan  of  the  informant  Satyendra
Sharma later at 3 a.m. in the morning when the chowkidaars, the mukhiya  and
Sarwan Singh had much earlier informed the police  about  the  incident.  In
fact statements  of  none  of  the  women,  and  persons  belonging  to  the
communities of Brahmans, schedule castes or Yadavs were recorded by PW-22.
26.         PW 22 claims to have taken  over  the  investigation  after  Ram
Japit Kumar was not available at the place of occurrence,  but  he  did  not
have any written orders or approval for proceeding with  the  investigation.
In para 28 of his deposition it is also revealed that none of  the  material
exhibits of the case were submitted to the Court as the  Malkhana  had  been
attacked by the extremists in 1996, and all its articles were,  consequently
destroyed. In para 35 of his cross examination he had admitted that  it  had
been recorded in para 23 of the police case diary that Ram  Japit  was  busy
with the investigation.  In para 2 of the case diary it was  mentioned  that
investigation of this case had been endorsed by the SP to  Ram  Japit  Kumar
who was at the place of occurrence. This  contradicts  his  statement  (para
26) that Ram Japit was not available at the place of occurrence.
27.         In para 43, PW22 admits that  no  T.I.P  was  conducted  of  any
suspect. PW22 investigated the case for only 8 days,  and  did  not  mention
any time and place of the examination of any of  the  witnesses.  There  are
also discrepancies in the depositions of PW21 and PW22 as far as the  extent
of case diary recorded by PW22 is concerned. PW 21 has stated it to be  from
para 1-222, while PW22 has stated it to be from 2-22  in  para  27,  and  in
para 40, he has stated it to be from 1-212. In addition to this, no  seizure
list was prepared.  In the deposition of PW 20, it was found that  informant
was never seen after the recording of fard bayan and further  statement.  In
para 12 he also states that there was no need for  obtaining  sanction  from
government for invoking TADA as there was provision to that effect.  He  did
not specify the provision.
With evidence being in such a state, the question would be -  who  could  be
convicted ?

28.         We cannot forget that in Krishna Mochi (supra) the accused  were
tried on the basis of same FIR, and two Judges in a bench  of  three  upheld
the conviction of Krishna Mochi, Dharmendra Singh, Nanhe Lal Mochi and  Veer
Kuer Paswan.  Hon’ble  Mr.  Justice  M.B.  Shah,  in  paragraph  96  of  his
judgment, noted that the investigation was totally defective, the  witnesses
had exaggerated to a large extent, they had not assigned any  specific  role
to the accused except their presence in the mob  at  the  time  of  offence,
they nowhere stated that the identified accused were having  any  weapon  of
offence, and the investigating officers had  not  recovered  any  weapon  of
offence or any incriminating article from their  possession.   In  paragraph
96 (2) he referred to Dilavar Hussain v. State of Gujarat 1991 (1)  SCC  253
and observed that when the accused are charged with heinous  brutal  murders
punishable with highest penalty, the judicial approach in such cases has  to
be cautious, circumspect and careful.   He acquitted Dharmendra  Singh.   As
far  as  the  other  accused  were  concerned,  although  he   upheld   that
conviction, presumably in view of the oral evidence on record,  in  view  of
the deficiencies noted by him, he  altered  their  death  sentence  to  life
imprisonment.
29.         In the present case, even if we decide  to  ignore  the  similar
deficiencies in the prosecution, and look into the oral evidence  which  has
come on record, the case of prosecution  against  appellant  no:  2,  Naresh
Paswan is rather weak.  His  name  was  not  mentioned  in  the  FIR.   PW-2
Birendra Singh who is an injured witness, though states in the dock that  he
had seen the appellants slitting the throats, he failed to  identify  Naresh
Paswan in Court.  
None of the other witnesses including PW-3 Lawlesh  Singh,
who is another injured witness, have attributed any role to  him.   None  of
them said that he was a  member  of  MCC.   
It  is  material  to  note  that
Madhusudan who was named at Sr.  No.5  in  the  FIR  also  faced  a  similar
allegation.  It was PW-2 Birendra Singh who named Madhusudan as one  of  the
accused who slit the throats of the deceased, but  had  failed  to  identify
him in the dock.  
In the absence of other witnesses throwing  any  light  on
his participation  in  the  occurrence,  Madhusudan  was  acquitted  by  the
learned designated Judge. 
 In paragraph 39 of his judgment in Krishna  Mochi
(supra) Hon’ble Mr. Justice Aggarwal, rejected the theory  of  some  of  the
accused  being  mere  sight-seers.
This  was  because,  as  the  paragraph
indicates, a specific role was attributed to them such as entering into  the
houses by breaking open the doors, and forcibly taking  the  inmates,  tying
their hands and taking them to the temple and thereafter near to the  canal,
where their legs were tied, and thereafter killing some of them.  As far  as
Naresh Paswan is concerned, no such role is attributed to him by any of  the
witnesses.  This being so, Naresh  Paswan  is  entitled  to  have  the  same
yardstick  applied  to  him  as  was   applied   to   Madhusudan.   In   the
circumstances, in our view, Naresh Paswan deserves an acquittal.
30.          As far as the other appellant no.3, Bugal Mochi  is  concerned,
in addition to his name being mentioned in the FIR as one who  was  slitting
the throats, he was identified by PW-2 injured  witness  Birendra  Singh  in
Court.  Bugal Mochi is attributed  the  role  of  slitting  the  throats  by
Birendra Singh in his oral  deposition.   Though  other  witnesses  did  not
attribute any specific  role  to  him,  he  was  identified  by  them  as  a
participant in the crime.
31.          As far as appellant no.1, Vyas Ram  is  concerned,  though  his
name was mentioned in the FIR, the heinous act of slitting the  throats  was
not attributed to him in the FIR.  PW-2, Birendra Singh has  however  stated
in oral evidence that Vyas Ram was slitting the throats, and  he  identified
him in the court as  well,  though  no  other  witness  has  attributed  any
particular role to him.   Birendra  Singh  being  an  injured  witness,  his
testimony cannot be  ignored.   It  is  true  that  his  testimony  was  not
accepted in Krishna Mochi, but that was so with respect  to  other  accused.
In the present case,  he  has  attributed  a  specific  role  to  these  two
accused.  There is no reason to discard  his  evidence.  The  conviction  of
these two accused under Section 302 of IPC and other charges  will  have  to
be upheld.


Question of sentence
32.         Then comes the question of sentence to  appellant  nos.1  and  3
i.e. Vyas Ram and Bugal Mochi.  It is true that in  Krishna  Mochi  (supra),
by a majority of two versus one, the crime in the instant case was  held  to
be one which deserved the extreme penalty of death.  
This was apparently  on
the lines of the judgment of the  Constitution  Bench  in  Bachan  Singh  v.
State of Punjab 1980 (2) SCC 684 as being one belonging  to  the  rarest  of
the rare category.
We have, however, to note that as  far  as  the  present
trial is concerned, the occurrence of the crime is of February 1992 and  the
charges were framed in May 2004.
More than nine years have gone  thereafter
also, and the appellants have been facing the trauma of the  crime  and  the
trial all this period.  Besides, as noted earlier, the manner in  which  the
investigation has proceeded was far from satisfactory.
In all  cases  where
death sentences are to be awarded, the  circumstances  of  the  accused  are
also required to be considered as laid down by  the  Constitution  Bench  in
Bachan Singh (supra) and later by a bench of three Judges in Machi Singh  v.
State of Punjab 1983 (3) SCC 470.
The leading  judgment  of  conviction  in
Krishna Mochi (supra), was rendered by Hon’ble Aggarwal J., and he noted  in
para 33 of his judgment that in the present case there was more  or  less  a
caste war between the haves and the have nots. The  appellants  belonged  to
the latter category.
The present incident was claimed to  be  a  retaliatory
attack by the members of MCC.  They are essentially  the  persons  belonging
to the scheduled castes and backward classes, and  economically  weaker  and
exploited  sections  of  society.
The  attack  was  supposed  to   be   in
retaliation to an earlier attack by  the  Bhumihar  community,  led  by  the
Ranvir Sena.  It must  also  be  noted  that  none  of  the  witnesses  have
attributed to these appellants that they belonged to the MCC.
It  is  quite
possible that due to their poverty and caste conflict in the  villages  they
were drawn in the melee and participated in the crime.
At the same time  no
harm was done to women and children.  Appellant No.1 Vyas  Ram  worked  with
one Jamuna Singh.  No harm was done to any member from  his  family  either.
This is not to say that such acts are to be condoned, but at the  same  time
we  have  to  consider  as  to  whether  after  taking  into  account  these
circumstances of the accused, death  sentence  was  warranted.   We  do  not
think so.
33.         It was emphasised before us on  behalf  of  the  State  that  in
Krishna Mochi (supra),  the  death  sentence  was  upheld  as  against  four
accused, by a majority of two versus one, on the basis of an  FIR  which  is
common to the present case, and that this was so done by relying  upon  oral
testimonies recorded in that case which are somewhat  similar  to  those  in
the present case. In this connection we must state that though the  FIR  was
common, the testimonies in the two cases are in fact different, and  on  the
analysis thereof we have come to the conclusion that one of the  accused  is
not guilty, however, the other two are , but considering  the  circumstances
in their case the death sentence is not warranted.

34.         Even with respect to  the  death  sentence  awarded  in  Krishna
Mochi(supra), having considered the dissenting opinion rendered  by  Hon’ble
Shah J., we must note the approach adopted by this Court,  subsequently,  in
a judgment of three judges in  the  case  of  Swamy  Shraddananda  @  Murali
Manohar Mishra v. State of Karnataka  reported  in  AIR  2008  SC  3040.   A
Sessions Court and  the  High  Court  had  imposed  death  sentence  on  the
appellant in that matter, and two judges of this court who heard the  matter
had differed on the issue of sentence.  The matter  was  referred  to  three
judges. The Court substituted the death sentence by imprisonment  for  life,
though directed that the appellant shall not be released till  the  rest  of
his life.  It was observed in paragraph 37 of the judgment as follows:-
                 “37….. The absolute irrevocability  of  the  death  penalty
           renders it completely incompatible to the  slightest  hesitation
           on the part of the court…..”

 We may as well profitably refer  to  what  was  observed  in  para  149  of
Santosh Kumar Satishbhushan Bariyar v.  State  of  Maharashtra  reported  in
2009 (6) SCC 498 which is to the following effect:-
                 “149. Principle of prudence, enunciated by Bachan Singh  is
           sound counsel on this count which shall stand us in good stead –
           whenever in the given  circumstances,  there  is  difference  of
           opinion with respect to any sentencing prop (sic)/rationale,  or
           subjectivity involved in the determining  factors,  or  lack  of
           thoroughness in complying  with  the  sentencing  procedure,  it
           would be advisable to fall in  favour  of  the  “rule”  of  life
           imprisonment rather  than  invoking  the  “exception”  of  death
           punishment.”

35.   (i)   In the circumstances, Crl. Appeal No.791 of 2009 is  allowed  in
part.  The judgment convicting appellant no.2, accused Naresh Paswan is set-
aside, and he will stand acquitted.  
He is acquitted  of  the  offences  for
which he was charged, and it is ordered that he  be  released  forthwith  if
not required in any other case.
(ii)  As far as appellant nos.1 and 3, accused Vyas Ram and Bugal Mochi  are
concerned, although their conviction under the offences for which they  were
charged is upheld, the  death  sentence  awarded  to  them  is  commuted  to
imprisonment for life, which is to mean the rest of their natural life.
(iii) Consequently, the Death Reference Case  (R)  No.2  of  2011  filed  by
State of Bihar is hereby dismissed.


                                       …………..……………………..J.
                                       [ A.K. Patnaik ]


                                       …………………………………..J.
                                       [ H.L. Gokhale ]

New Delhi
Dated: September 20, 2013


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