IMPORTANT POINT
In the cases of rioting, where there are a large number of assailants and a number of witnesses, 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.

Headnote:(i) Criminal Procedure Code, 1973 -Section 392-Procedure where Judges of Court of Appeal are equally divided - Difference of opinion amongst Judges of Division Bench of High Court-Their opinions laid before another Judge-It is only after third Judge gives his opinion that judgment or order follows-A judgment or order which can be appealed against, under Article 136 of Constitution, is only that which follows after opinion of third Judge has been delivered. (Constitution of India-Art. 136). (Paras 19 & 20)
       (ii) Constitution of India-Art. 136-Appeal against acquittal-Where both the courts below have acquitted respondents of serious charges levelled against them-There should be very strong reasons to set aside verdict of acquittal and to convict respondents-If two views possible-This Court would not, readily or ordinarily, reverse concurrent findings of acquittal-If evidence on record shows that there has been a serious mis-carriage of justice-Notwithstanding concurrent findings, this Court would not hesitate in coming to a different conclusion. (Para 23)
       (iii) UNLAWFUL ASSEMBLY-Indian Penal Code, 1860-Section 141, Explanation-An assembly which is not unlawful when it assembles may subsequently become an unlawful assembly-Common object of unlawful assembly can be gathered from nature of assembly, arms used by them and behaviour of assembly at or before scene of occurrence-When fourteen people killed without use of any weapon more lethal than a stick or stone-Fifty or more villagers had taken part in attack-A large number of villagers were present duly armed with lathis and sticks-Held, there was an unlawful assembly with common object of killing. (Para 26)
       (iv) Indian Penal Code, 1860-Sections 147, 148 & 149-Rioting-Where there are a large number of assailants and a number of witnesses-Manner in which evidence should be appreciated-Testimony of witnesses may not be identical-What has to be seen is whether basic features of occurrence have been similarly viewed and/or described by witnesses in a manner which tallies with outcome of riot-It is not necessary for prosecution to prove which of the members of unlawful assembly did which or what act-Conviction of only those members sustained who have been specifically identified by at least four eye witnesses-Masalti s case : Relied on. (Paras 28 & 29)
       (v) Indian Penal Code, 1860-Sections 147, 302/149, 436/149, 323/149 and 307/149-Prosecution for offences under-All 32 accused respondents were acquitted by Sessions Judge-Appeal-Acquittal of all of them upheld except that of respondents 20 and 14-They were convicted u/s 325/34-Appeal against acquittal-Occurrence took place in a village of Thakurs or Brahmins-Only house of a Scheduled Caste was of PW8-Marriage party proceeding to house of PW8-Exchange of words-Large number of villagers collected there- Riot-House of PW8 burnt-14 persons were killed and 7 injured-Six of them were burnt-Injuries caused by blunt instruments or stones-It would be safe if only those of respondents should be held to be members of unlawful assembly who have been specifically identified by at least four eye witnesses-Acquittal of respondents Nos. 5, 4, 21, 22, 26, 28 upheld-Acquittal of respondent Nos. 1, 2, 7, 8, 9, 10, 11, 12, 13, 14, 15, 19, 20, 23, 24 and 25 u/ss 147, 302/149, 436/149, 323/149 & 307/149 IPC set aside-All these accused convicted under those sections. (Paras 37, 38, 43, 44)
       (vi) SENTENCES-Indian Penal Code, 1860-Sections 147, 302/149, 436/149, 323/149 and 307/149-Conviction u/s 147-Sentence to undergo RI for one year-Imprisonment for life u/s 302/149-RI for seven years u/s 436/149-RI for nine years u/s 323/149 and 7 years u/s 307/149-All sentences will run concurrently. (Para 44)

JUDGMENT

Kirpal, J.-This is an appeal by special leave against the judgment of the Allahabad High Court which had upheld the acquittal of all the accused respondents of charges under Sections 147, 302/149, 436/149, 307/149 of the Indian Penal Code (for short the IPC ) and under Section 4 (iv), (x) and Section 5.7 of the Protection of Civil Rights Act 1955. The aforesaid charges were framed pursuant to an occurrence which had taken place in village Kafalta Malla in district Bilaspur in the State of U.P. wherein 14 persons were killed and 7 injured. All the 32 accused-respondents were acquitted by the Sessions Judge and, in appeal, the acquittal of all of them was upheld except that accused Kishan Singh, respondent No. 20, and Jeet Singh, respondent No. 14, who were convicted by the High Court under Section 325/34 IPC and sentenced to five years rigorous imprisonment.

2. The occurrence in question too place on 9th May, 1980. 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 Brahmins 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. In all there were 70 to 80 persons, and they were armed 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 marraige party, with a Knife. Diwani Ram received injuries. Khima Nand Fauji wanted to attack again. Then the bridegroom s father Mohan Ram tried to snatch the knife from Khima Nand. In this scuffle the knife struck Khima Nand. (This Khima Nand died after a few days). When the knife struck Khima Nand and he got injured, the members of the marriage party started running helter skelter. Some of them entered into the house of Nari Ram as this Nari Ram was of their own caste. In order to save themselves these persons bolted the door of Nari Ram s house from inside. The accused assailants bolted it from outside and after making a hole in the roof, they put in dried grass sprinkled kerosene oil and put it on fire. Some members of the marriage party ran else where to save themselves but they were attacked with lathis and stones etc. resulting in death of several persons. Complainant Narendra Prasad (PW 1) was also in the marraige party. He was injured. Some how he was able to escape and reached his house after it being dark. Then he went to Patwari s office which is at a distance of two or three kilometers from his house and six kilometers from the place of occurrence and lodged a written report (Ex.Ka. 3) at 10 p.m. the same night.

3. Before the report was lodged by the complainant the accused No. 2 Inder Singh also lodged a report in the same Patwari s office at 9.30 p.m. The version given in this report was that the marriage party reached the village at 5 p.m. In the village there is a temple of Badri Nath where bridegroom of every caste has to get down from doli. Then the marriage party was asked that they should also take the bridegroom on foot in front of the temple; but the members of the marriage party did not agree and started quarrel. They attacked Ram Singh accused No. 10. As alarm was raised in the village, the villagers assembled. The members of the marriage party did n

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1997 Supreme(SC) 176

IMPORTANT POINTIn the cases of rioting, where there are a large number of assailants and a number of witnesses, 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.

Cases Referred (2)

IMPORTANT POINT
In the cases of rioting, where there are a large number of assailants and a number of witnesses, 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.