Very important points
1. (Per majority of Agrawal and Pasayat, JJ.) the Designated Court rightly convicted all the four appellants under Sections 302/149 IPC and under TADA and rightly awarded the death penalty to all as the case comes under rarest of the rare category.
2. (Per dissenting opinion of Shah, J.) appellant Dharmendra Singh is entitled to acquittal. Other 3 appellants are rightly convicted. However, imposition of death penalty is altered to life imprisonment.

Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act, 1987—Section 3(1)—Indian Penal Code, 1860—Sections 302/149—Offences under—A case of gruesome carnage on 13-2-1992 in a village of District Gaya, State of Bihar—35 persons lost their lives, some houses/huts burnt and number of persons injured by bomb explosions and bullets by a Terrorist Group MCC (Maosists Community Centre)—Out of 119 chargesheeted persons, 13 were tried—Designated Court convicted Appellant-1 : Krishna Mochi (Accused 6), Appellant-2 : Dharmendra Singh @ Dharu Singh (Accused 9), Appellant-3 : Nanhe Lal Mochi (Accused 13) and Appellant-4 : Bir Kuer Paswan (Accused A-5) and awarded life imprisonment for offence under IPC and death penalty for offence under TADA—Appeal and Death Reference to Supreme Court—Who could be convicted on the evidence and what sentence could be awarded ? (Majority of Agrawal and Pasayat JJ. Conviction of all the four as per order of Designated Court upheld and death penalty confirmed (See Paras 90 and 98)—Appeal dismissed—But as per Shah J. Appellant-2 acquitted—Appeals of other three appellants partly allowed: their conviction is upheld but death penalty is altered to life imprisonment (Paras 41 to 43)—Appeal disposed of accordingly but death reference dismissed (Para 44)—Final result—Appeal dismissed and death penalty confirmed by majority.
       (ii) TADA, 1987—Section 3(1)—Indian Penal Code, 1860—Sections 302/149—Evidence Act, 1872—Section 134—Four appellants convicted—Appeal—Contention that identification of accused is not reliable one—Whether correct? (No by majority of 2 : 1).
       Per Agrawal, J.—[Regarding Krishna Mochi-Appellant No. 1 (Accused No. 8)]
       Held : I have no difficulty in holding that the participation of this appellant in the crime has been proved by credible evidence of Yogendra Singh (PW 8), Ram Sagar Singh (PW 16), Dhananjay Singh (PW 19) and Bunde Singh (PW 20) though it is not possible to place reliance upon the evidence of Belmati Devi (PW 5), Birendra Singh (PW 6) and Lalita Devi (PW 29). (Para 59)
       [Regarding Dharmendra Singh @ Dharu Singh - Appellant No. 2 (Accused No. 9)]
       Held : Thus, so far appellant No. 2 is concerned, out of the three witnesses, it is not possible to place reliance on the evidence of Brajesh Kumar (PW 11) and Dhananjay Singh (PW 19) but the evidence of Ram Sumiran Sharma (PW 21) is unimpeachable and he can be treated to be a sterling witness for the prosecution. (Para 62)
       [Regarding Nanhe Lal Mochi - Appellant No. 3 Accused No. 13)]
       Held : Thus, on the point of participation of this appellant, out of the evidence of Yogendra Singh (PW 8), Ram Sagar Singh (PW 16), Budhan Singh (PW 18), Dhananjay Singh (PW 19), Bunde Singh (PW 20), Ram Sumiran Sharma (PW 21), Krishna Devi (PW 22) and Lalita Devi (PW 29), the evidence of Yogendra Singh (PW 8), Ram Sagar Singh (PW 16), Budhan Singh (PW 18), Ram Sumiran Sharma (PW 21) and Krishna Devi (PW 22) is unimpeachable whereas no reliance can be placed upon the statements of Dhananjay Singh (PW 19), Bunde Singh (PW 20) and Lalita Devi (PW 29). (Para 68)
       [Regarding Bir Kuer Paswan - Appellant No. 4 (Accused No. 5)]
       Held : Thus, out of the three witnesses, namely, Lavlesh Singh (PW 7), Dhananjay Singh (PW 19) and Ram Sumiran Sharma (PW 21) on the question of participation of this appellant in the crime, no reliance can be placed on the evidence of Dhananjay Singh (PW 19) but I do not find any infirmity in the evidence of Lavlesh Singh (PW 7) and Ram Sumiran Sharma (PW 21). (Para 71)
       Held finally : From the above, it would be plain that in relation to appellant No. 1 evidence of four witnesses, appellant No. 2 one witness, appellant No. 3 five witnesses, appellant No. 4 two witness has been found credible. (Para 72)
       [Pasayat J. agreeing (Para 91). But Shah J. dissenting (Para 1)]
       (iii) Even if it be held that appellants-accused were present in the mob of 600-700 persons, there is no justifiable reasons for connecting the accused with the crime—Whether correct? (No, as per Agrawal and Pasayat JJ. (Paras 72 to 76 and 92 to 94) (Yes, per Shah J. (Para 41)—There are justifiable reasons in the mob of 600-700 persons for connecting the accused with crime under IPC and TADA.
       (iv) TADA—Section 3(1)—Offence under—Death penalty—Appeal and Death Reference—Whether the case comes under rarest of the rare? (Yes by majority of Agrawal and Pasayat, JJ. (Paras 83 to 89 and 95 to 98)—No by dissenting opinion of Shah, J. (Para 42)—Final result—Death penalty confirmed by majority of 2 : 1.
       (v) Criminal Trial—Non-examination of lodger of FIR—Whether fatal in this case? (No) (Para 78)—Whether non-examination of one of the Investigating Officers fatal in this case? (No) (Para 79)—Whether non-recovery of any arms or any incriminating article from any of the accused that they had no complicity in crime? (No) (Para 80)—Identification of accused in night doubtful? (No) (Para 81)—Can accused be termed as sight seers only? (No) (Para 82)—Dissenting opinion (See Para 41).

JUDGMENT

Shah, J.—With respect I regret for my inability to agree with the judgment rendered by my learned brother Justice Agrawal. At the outset, it requires to be stated that this case illustrates how faulty, delayed, casual, unscientific investigation and lapse of long period in trial affects the administration of justice which in turn certain shakes the public confidence in the system. It is not possible for the authorities to find out ways and means for speedy, efficient, scientific investigation in at least heinous brutal carnage and for trying the case within few months of occurrence? If this is not done, it is of no use to complain that accused are not punished in such cases. In any case, for deciding such criminal case, it is the bounden duty of the court to appreciate the evidence brought on record, as it is, in accordance with established law without being influenced by the allegations levelled by the prosecuting agency or by the incident. Before appreciating the evidence, I would refer to the observations of this Court in State (Delhi Admn.) v. Laxman Kumar [(1985) 4 SCC 476 at 505] observed as under:-

"Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical power of a litigating individual or the might of the ruler nor even the opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following conviction at a trial in a system wedded to rule of law is the outcome of cool deliberation in the court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecutor is given an opportunity of supporting the charge and the accused is equally given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed mind of the Judge that leads to determination of the lis.....’’

2. In the present case, in gruesome carnage, 35 persons lost their lives, some houses/huts were burnt, number of persons were injured and in that case charge-sheet was submitted against 119 persons. Out of them, 13 were tried by the Designated Court of Sessions Judge, Gaya in G.R. Case No. 430 of 1992, Tekari Police Station Case No. 19 of 1992 under the provisions of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as "TADA Act") and under Section 302/149 etc. of Indian Penal Code (hereinafter referred to as "IPC"). After recording the evidence, by judgment and order dated 8.6.2001, the Designated Court.

(a) acquitted A-1 Nanhe Yadav @ Dina Yadav, A-10 Nanhak Teli, A-11 Naresh Chamar and A-12 Ramashish Mahto;

(b) convicted A-5 Bir Kuer Paswan, A-8 Krishna Mochi, A-9 Dharmendra Singh @ Dharu Singh, A-13 Nanhe Lal Mochi and sentenced to death;

(c) convicted A-2 Bihari Manjhi, A-4 Ramautar Dusadh @ Lakhan Dusadh, A-6 Rajendra Paswan, A-7 Wakil Yadav and imposed life imprisonment;

(d) convicted A-3 Ravindra Singh and imposed RI for ten years. He has not filed any appeal.

3. A-2 Bihari Manjhi, A-4 Ramautar Dusadh @ Kakhan Dusadh, A-6 Rajendra Paswan and A-7 Wakil Yadav have challenged impugned judgment and order in Criminal Appeals No. 752 and 765 of 2001 and by a separate judgment of even date, these accused stand acquitted by this Court on the ground that there is no evidence against them except the confessional statement of A-2 Bihari Manjhi which we have not relied upon for the reasons recorded therein.

4. By this judgment and order, Criminal Appeal No. 761 of 2001 filed by A-5 Bir Kuer Paswan alias Beer Kuer Dusadh, A-8 Krishna Mochi, A-9 Dharmendra Singh alias Dharu Singh, A-13 Nanhe Lal Mochi and the Death Reference No. 1 of 2001 filed by the State against these accused are disposed of.

5. In heinous crime, where 35 persons lost their lives, prosecution has not examined the

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2002 Supreme(SC) 487

Cases Referred (26)