TMI Blog1995 (3) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... second incident, which started at mid day and continued till the evening, also two cases were registered; one in the same night on the statement of one Janki Bind being cast No. 304 of 1985 under sections 148, 149/302, 201, 436 and 380 IPC and the other on the following morning on the statement of one Mahender Singh being case No. 305 of 1985 under sections 302/149,307,380,436,147,148, 149, 201 and 120 B IPC and section 27 of the Arms Act These two cases also after joint investigation ended in a charge sheet against 152 accused persons including the three appellants herein and some absconders. 3. The case relating to the second incident was committed to the Court of Session on January 28, 1986 and on receipt of the order of commitment the learned Sessions Judge transferred it to the 10th Court of the Addl. Sessions Judge ('10th Court for short) for trial (Sessions Trial No. 10 of 1986). Thereafter on February 25, 1986 case it appears that the High Court had exercised the power of transfer in the context of the petition filed by some of the accused from jail complaining that they could not be accommodated in the Court room as a result of which some of them had to remain outsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the charges against all the accused including Lakhan Yadav and Nageshwar Yadav (two of the absconding accused who had surrendered in the meantime) would be framed afresh. The order further reads as follows:- ...I must put it out that the learned Special P.P. has submission that the charges were explained to the accused persons. It is worth noting that if the said petition is allowed to remain undisposed of, in future there may arise complications, particularly at the end of trial and this way without prejudice to the accused persons it is just proper, regular and expedient to explain the charges afresh to all the accused persons under the peculiar circumstances; keeping in view that there was protest with regard to the appointment of a lawyer from the defence panel by the accused on the very first day of taking of the trial and keeping in view that the accused persons did not repose confidence in the defence lawyer appointed by the previous court and further keeping in view that they re- iterated that they had been prejudiced due to the absence of their lawyers whom they had appointed- The misgivings on the part of the accused may not be sound but the court will have to adopt a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The 5th Court therefore, by its order dated April 30, 1987, directed the prosecution to examine all those four witnesses afresh. 9. Aggrieved by the above order the State filed a revisional application which was disposed of by the High Court with the following order:- Without going into the merits, as to whether re-examination of the four witnesses named in the impugned order is in any way essential for just decisions of the case or not since the stand taken before this Court on behalf of the prosecution is that it does not propose to re- examine them in the trial, it is enough to dispose of this application with a direction that in case the defence applied to cross-examine them, the Court may order for their cross- examination and in case the court feels that any further evidence is essential for a just decision of the case, it may call am to the Court. The question whether the evidence recorded by the predecessor incharge of the court of the 5th Addl. Sessions judge. Munger, of the four witnesses named in the impugned order can be looked into and relied upon by either party or not shall remain open for consideration of the hearing of the trial, The learned Sessions Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere trial was yet to commence and not thereafter. He next contended that the only other section which empowered the High Court to transfer a case under the Code was Section 407 but such a power could be exercised judicially only after complying with the requirements thereof and hearing the parties. As, admittedly, the High Court did not exercise such judicial power, the order of transfer whereby the 5th Court acquired jurisdiction, must be held to be void and ineffective, argued Mr. Jethmalani. He lastly contended that such grave illegality and want of jurisdiction were not curable under Section 465 of the Code. In support of this contention he relied upon the majority judgment of this Court in A.R. Antulay vs. R.S. Nayak Another (1988) 2 SCC 602, 12. Before considering the above contentions of Mr. Jethmalani we may mention that in spite of sufficient opportunities given, the order of transfer passed by the High Court was not produced before us. Needless to say, had it been produced we would have exactly known the facts and circumstances which prompted the High Court to pass that order and clearly apprehended the source of power. However, from the materials on record which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng ad- equate opportunities to the parties of a proper hearing which, resultantly, would have not only delayed the trial but further incarceration of some of the accused. It is obvious, therefore, that by invoking its power of superintendence, instead of judicial powers, the High Court not only redressed the grievances of the accused and other connected with the trial but did it with utmost dispatch. 14. Coming now to A.R. Antulay case (supra) we find that the principles of law laid down in the majority judgment to which Mr. Jethmalani drew our attention have no manner of application herein. There questions arose as to whether i) the High Court could transfer a case triable according to Criminal Law Amendment Act, 1952 ('1952 Act' for short) by a Special Court constituted thereunder to another Court, which was not a Special Court and ii) the earlier order of the Supreme Court transferring the case pending before the Special Court to the High Court was valid and proper. In answering both the questions in the negative the learned Judges, expressing the majority view, observed that i) Section 7(1) of the 1952 Act created a condition which was sine qua non for the trial of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a Judge or Magistrate can decide a case only on the evidence recorded by him and the departure from this salutary principle is permissible only in those cases where he decides to invoke Section 326 of the Code to exercise his judicial discretion to act on evidence recorded by his predecessor or partly recorded by his predecessor and partly re corded by him. Mr. Jethmalani submitted that as in the instant case the trial Court had exercised its discretion to hold a de novo trial reference to and reliance upon any evidence recorded in the earlier trial were patently illegal and incompetent. In support of this contention Mr. Jethmalani relied upon the decision of this Court in Pyare Lal vs. State of Punjab (1962) 3 SCR 328. While on this point Mr. Jethmalani lastly contended that once the trial Court had exercised its judicial discretion to hold a fresh trial, the High Court's interference with the same was not only impermissible in view of the embargo of Section 397 (2) of the Code but was also unsustainable on merits. 17.To appreciate the above contentions of Mr. Jethmalani it will be imperative to first refer to the legislative history behind Section 326 of the Code. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be deemed to cease to exercise jurisdiction therein and to be succeeded by the latter within the meaning of sub-section (1) 18. The next legislative change in Section 350 of the Code of 1898 was brought about by Act 26 of 1955. With that, in subsection (1) of the Section for the words or he may re- summon the witnesses and recommence the inquiry or trial and the proviso, the following proviso was substituted: Provided that if the succeeding Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon such witnesses and after such further examination, cross- examination and re-examination if any, as he may permit, the witness shall be discharged. 19. When the Code of 1898 was repealed and replaced by the Code Section 350 was renumbered as 326 without any textual change. However, later on by the Criminal Procedure Code (Amendment) Act, 1979 the section was amended to vest the power and discretion exercisable thereunder by a Magistrate to a Judge also. With the amendments detailed above Section 326 read at the time the trial in question took place, and still ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de novo trial and that of the Court to so direct by express words of the amending statute of 1955. Considered in that perspective we are of the opinion that the case of Payare Lal (supra) which was decided when Section 350 was operating in the field without its amendment of 1955 has no relevance here. In that case, Payare Lal and another were prosecuted for offences under Section 5 (2) of the Prevention of Corruption Act, 1947. The 1952 Act which laid down the procedure for trial of such offences required the trial to be held by a Special Judge appointed under it and in accordance with certain provisions of the Code of 1898 as mentioned in Section 8 of 1952 Act. The Special Judge accordingly heard the evidence but before he could deliver the judgment he was transferred and was succeeded by another Special Judge. The latter did not recall the witnesses and did not hear the evidence over again but proceeded with the trial without any objection from either side from the stage at which his predecessor had left. The trial ultimately ended in conviction and in appeal the Punjab High Court held that Section 350 of the Code of 1898 applied to the trial before a Special Judge in view of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined on its behalf were, that three accused had surrendered after charges had been framed and four witnesses for the prosecution had been examined-in- chief and three of them discharged after cross examination and that the accused persons had been prejudiced in their defence as, instead of a lawyer of their choice a lawyer from the defence panel had appeared on their behalf on the first day of the trial. Therefore as against the present appellants and the other accused who were being tried with them the question of framing charges afresh by the 5th Court did not and could not arise; and, in fact, as already noticed only additional charges were framed against them. The direction of the 5th Court regarding framing of charges afresh has therefore to be read and construed with reference to those three who surrendered later. 22. So far as those three accused are concerned, admittedly they were not there when the trial commenced in the 10th Court and, therefore, the 5th Court was not only legally bound to frame charges against them, but also to record the evidence of the four witnesses already examined afresh if the prosecution intended to use the same against them for, save is excep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of the Court the alteration or addition to a charge is not likely to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may in its discretion proceed with the trial immediately with the altered or added charge. Sub-section (4) provides that if the alteration or addition is such that the proceeding immediately with the trial is likely to prejudice the accused or the prosecutor the Court may either direct a new trial or adjourn the trial for such period as may be necessary. Section 217 of the Code provides that whenever a charge is altered or added to by the Court after the commencement of the trial the prosecutor and the accused shall be allowed to recall or to summon and examine with reference to such alteration or addition any witness who has already been examined unless the Court for reasons to be recorded in writing considers that the desire to recall or reexamine such witness was only for the purposes of vexation or delay or defeating the ends of justice. Besides, it permits the prosecutor and the accused to call any further witness whom the Court may think it to be material. On a combined reading of the above two sections it is, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sukhdeo Singh, Nageshwar Singh and Ramchandra Singh who were described as P.C. (previous Court) P.Ws. 1, 2, 3 and 4 respectively against the appellant. Before we part with our discussion on this aspect of the matter it will be pertinent to mention that the trial Court did not take into consideration the evidence of the above four witnesses against the three accused who surrendered later and, then again, out of those three while two were acquitted the other did not prefer any special leave petition in this Court. 25. Now that we have answered the two threshold questions raised by Mr. Jethmalani we may proceed to set out the two incidents including their background narrated by the prosecution during trial. 26. There are, two Bind Tolis known as North Laxmipur Taufir Bind Toli and South Laxmipur Taufir Bind Toli in Laxmipur Taufir Diara and both are inhabited mainly by the people of Bind community. There are other neighbouring villages in the Diara, known as Taufir, Taufir Karari Tola, Taufir Kajo Mahto Tola, Taufir Inder Mahto Tola, Taufir Inder Tola and Tikarampur and the inhabitants of these villages are mostly of Yadav community. All these villages are situated within the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thers went to cultivate those plots accused Dhamidhar Yadav, Ashok Yadav, Pramod Yadav, Sakaldeo Yadav and Wakil Yadav appeared there and chased Chandradeo Singh and his companions, who ran away to save their lives. At that time the Yadavas gave out an open threat that the entire Bind Community would be eliminated if further attempt was made to cultivate the land. Chandradeo Singh intended to give information about this incident at Munger Muffasil Police Station but could not as those Yadavas and their hench men had blocked the Bhelwa Bardhe Ghat as well as other Ghats, through which one could, after crossing the River, go to the Police Station. 28. The case of the prosecution next is that on the following morning i.e. on November 11, 1985 some 30/40 members of the Yadav community, who are all residents of village Karari Tola came to village Laxmipur Taufir Bind Toli led by accused Pramode Yadav, Sakaldeo Yadav,Wakil Yadav, Dharnidhar Yadav and Subodh Yadav and started abusing the Binds. Seeing the mob Chandradeo Singh, Bijay Singh, Sadhu Singh and Raje Sao accosted them and requested not to resort to violence. However, the Yadavs did not listen to their request and some of them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, namely, Shyam Narain Prasad (P.W.68) and Naresh Prasad (P.W.99). In course of the investigation P.W.96 inspected the places of occurrence and got sketch plans prepared. Besides under his direction P.W. 99 seized some burnt household articles from the large number of huts which were burnt down by the miscreants. He requisitioned the services of the veterinary surgeon to conduct post examination upon carcass of the goats and the cows found dead. He also went to the River to search for and recover the dead bodies of the persons who were allegedly thrown there by the miscreants. Ultimately the dead bodies of six out of the nine killed were recovered and after there inquests were held by P.W. 68 under his direction they were sent for postmortem examination. During investigation he seized the deed of agreement under which Chandradeo Singh claimed to have obtained the settlement of the plots in question. 31. While pleading not guilty to the charges levelled against them, the three appellants asserted that they were falsely implicated and each of them took up the plea of alibi. In support of its case the prosecution examined 105 witnesses. Out of them 22, who were all residents of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact. The next finding, recorded by the trial court on an appraisal of the evidence of P.W.5 and others, is that some. Yadavas of Taufir Karari Tola were forcibly cultivating the land since it emerged from the River bed in 1984 and the Yadavas drove P.W.5 and his companions away when, after taking settlement of the land, they went to grow crops thereon on 10.11.85 and threatened them with dire consequences in case they dared to do so. This finding also does not appear to have been challenged in the High Court and before us also it was not challenged. 34. It is in the above background that the two incidents of 11. 11. 85 have to be considered. We however need not detail or discuss the evidence relating to the first incident as, admittedly, the three appellants were not involved therein and, in fact, they were not arraigned in S. T. No. 83 of 86. Suffice it to say, that on a proper appreciation of the evidence laid in respect thereof a concurrent finding has been recorded by the Courts below to the effect that the six Yadavs (who were facing trial for that incident) had come to the village Laxmipur Taufir Bind Toli armed with various weapons including firearms, committed rioting, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts below recounted their evidence and after exhaustive evaluation thereof found the same consistent On the basis thereof the Courts held that the prosecution had succeeded in proving that when the mob was engaged in committing loot and arson in the village some villagers fled towards Tisrasia Dhab and they were chased by some of the miscreants. Amongst those who were being chased were i)Ramswarup Singh,ii) Lal Bahadur Singh,iii) Rampravesh Singh, iv) Rambilas Singh, v) Sadho Singh, vi)Arjun Singh, vii) Bhumi Singh, viii) Ramadul Singh, ix) Shiban Singh (all dead) x) Sukhadeo Yadav (P.C.P.W. 2), xi) Nageshwar Singh (P.C.P.W.3), xii) Moharil Singh (PW 29) xiii)Suresh Singh (PW 46). All the members who were chasing were armed with rifle, Sun, pistol, bhalla etc. and some of them were on horse back. The next finding recorded by the Courts is that those who were chased boarded a country boat in Tisrasia Dhab and started rowing to go to the other side. In the meantime the rioters reached there, opened fire and captured the boat. While three of the occupants of the boat P.C.P.W. 2, P.C.P.W. 3 and PW 29 escaped from their clutches by jumping into the River the other ten were apprehended an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent also and in connection therewith he had talked to several persons. He, however, stated that he did not record the statements of the persons to whom he talked to. In cross examination it was elicited from him that-on the very night he learnt that houses of some people had been looted and set on fire, some people had been murdered and that some villagers were untraceable. While being further cross examined he volunteered that he had started the investigation of over the case registered over the second incident in the same night. On the face of such admissions of P.W. 96 and the various steps of investigation he took in connection with the second incident there cannot be any escape from the conclusion that the report lodged by P.C.P.W.1 on the following morning could only be treated as a statement recorded in accordance with Section 161(3) of the Code and not as an F.I.R.. The next question, therefore is whether the evidence of P.C.P.W. 1 is inadmissible as contended by Mr. Jethmalani. 39.In the case of Zahiruddin (supra) the police had got the statement of the principal witness which was, admittedly, recorded during investigation signed by him. Besides, during trial, while bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly stated, for it is not the mere fact that Mr. Roy had signed the statement but the fact that he had it before him and consulted it in the witness box that renders his evidence incompetent. (emphasis supplied) 40. In our considered view the above quoted passage is of no assistance to the appellants herein for in the instant case after P.C.P.... testified about the incident prosecution got the statement of P.C. P. W. 1 exhibited Ext. 10/1 as according to it Ext. 10/1 was the F.I.R. Such a course was legally permissible to the prosecution to corroborate the witness in view of Section 157 of the Evidence Act. Of course in a given case as in the present one- the Court may on the basis of the subsequent materials held that the statement so recorded could not be treated as the F.I.R. and exclude the same from its consideration as a piece of corroborate evidence in view of Section 162 of the Code but then on that score alone the evidence of a witness cannot be held to be inadmissible. The case of Zahiruddin (supra) turned on its own facts, particularly the fact that during his examination-in-chief the witness was allowed to refresh his memory from the statement recorded under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts below in the light of the relevant evidence and keeping in view the following observations of this Court in Shivaji v State of Maharashtra A.I.R. 1973 S.C. 2622 as it applies in all fours in this case also: ............ The scene of murder is rural, the witnesses to the case are rustics and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in in essential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. 43.On such examination we find that the various contentions raised on behalf of the accused/appellants have been carefully examined, the evidence given by the respective witnesses has been correctly marshalled and assessed and the infirmities a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fell under Section 142 I.P.C. It was further held that it was necessary for the prosecution to lead evidence pointing to the conclusion that the accused had done or been committing some overt act in prosecution of the common object of the unlawful assembly. 45.If the above quoted proposition of law had still operated in the field it might have been necessary for us to closely scrutinised the evidence of the eye witnesses so far as it sought to prove the over act allegedly committed by each of the appellants to ascertain whether the learned Courts below were justified in accepting the same. But the above interpretation given to Section 141 and 149 I.P.C, In Baladin's case (supra) was explained by a four Judge Bench of this Court in Masalti v. State of UP. A.I.R. 1965 S.C. 202 as under: 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 unlawful assembly, while others were merely passive witnesses. Dealing with such an assembly, thi s Court observed that the presence of a person in an assembly of that kind would not nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition of law such as Mr. Sawhne y suggests. (emphasis supplied) The above quoted principle was reiterated by this Court in Lalji v. State of UP. A.I.R. 1989 S.C. 754 with the following words: The two essentials of the Section (Section 149 I.P.C.) are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who sham in the common object. The common object of the assembly must be one of the five objects mentioned in S. 141 I.P.C. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vert acts ascribed to each of the three appellants herein is not reliable, for the Courts below considered and accepted conclusively prove that all the three appellants shared the common object of the unlawful assembly to commit the offences of loot arson and murder and causing the disappearance of the evidence of murder and that in furtherance of those common objects some members of that unlawful assembly committed those offences for which the appellants are also liable to the convicted under section 149 IPC. Even if we leave aside the evidence of Suresh Singh (P.W.46) who testified about the overt acts committed by all the three appellants, of P.C. P.W.2 who spoke about the overt acts of appellants Pandav Yadav and Sukhdeo Yadav and of P.C. P.W.1 and P.W. 19 who deposed about the overt acts of Sukhdeo Yadav there are the testimonies of the other eye-witnesses, to whom reference has already been made, and found to be trustworthy, who identified the three appellants, besides others, as having been members of the unlawful assembly. Having sifted their evidence and considered the same in the backdrop of the events proceeding the incident that took place in the afternoon of 11.11. 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
