Judgement

THOMAS, J.:- A varitable holocaust took place in a Bihar village (Paras Bigha, in Gaya District) on a moonlit night in early February, 1980. In that massacre lives of 13 human beings were snuffed out and 17 others were badly mauled, a large number of mute cattle were burnt alive and many dwelling houses were gutted. The venue of that macabre was the area where houses of harijans and people belonging to Backward Classes were clustered together in Paras Bigha village. After investigation the police charge-sheet 56 persons for various offences committed in connection with the aforesaid incident, but due to different reason only 44 of them were put on trial. Sessions Court convicted 37 among them of various offences ranging from S. 302, I. P. C. (read with S. 149) to minor offences such as S. 429, I. P. C. and sentenced them to rigorous imprisonment for 10 years for the principle offence and to lesser terms of imprisonment for the lesser offences. The Patna High Court confirmed the conviction and while dealing with the sentences rectified an illegality in awarding a sentence of imprisonment only for 10 years for the offences under Ss. 302/149, I. P. C. by enhancing to imprisonment for life. The maximum fine imposed by the Sessions Court was reduced from Rs. 5,000/- to Rs. 3,000/- and made it applicable to all the convicted accused. We are now dealing with the appeals filed by the convicted persons in this Court by special leave.

2. During the pendency of these appeals the appellant in Criminal Appeal No. 91 of 1994 (Surendra Prasad Singh) died and hence his appeal has abated. We may point out that appellant Moiddin Main (ranked as 7th accused in the trial Court) has not filed any appeal before the High Court and hence the conviction and sentence passed on him remained unchallenged. He is one of the many appellants arrayed in Criminal Appeal Nos. 280-283 of 1987 in this Court. But he could not have come to this Court without approaching the High Court in appeal first. We, therefore, record that his appeal before us is not maintainable and hence the conviction and sentence passed on him by the Sessions Court would remain undisturbed. We, therefore, dismiss his appeal filed in this Court.

3. Due to the crowding of many accused persons in this case, we deem it convenient to refer to the individual appellant as far as practicable by the rank in which they were arrayed in the trial Court. We do not think it necessary to mention the facts elaborately, yet a brief narration of the story would be advantageous to deal with the questions raised before us.

4. One Ram Niranjan Sharma (father of A-3 Madan Mohan Sharma) was killed on 28-10-1979 for which the police charge-sheeted certain persons including Sukhdev Bhagat (PW-32) and some other prosecution witnesses who were all inhabitants of the venue of this crime. From then onwards tension was mounting up in this locality. Police patrol as well as bandobust were provided and some measures, such as initiation of security proceedings under S. 107 of the Code of Criminal Procedure (for short the Code) for easing down the tension and to preserve law and order situation, were adopted but the police perambulation was subsequently lifted. On the occurrence night these appellants and a lot of their henchmen formed themselves into an unlawful assembly arming themselves with deadly weapons, guns, rifles and cutting instruments. When the inhabitants of the place of occurrence were sleeping the rioters made a blitz on them around 11 in the night. Many houses occupied by the victims in this case were set on fire and haystacks (heap of straws) were set ablaze. The occupants who emerged out of the burning houses were shot at by the appellant though some of them could escape either by fleeing off or by hiding from the spewing barrels of the fire-arms which prowled for them. When the assailants were satisfied that they had accomplished their object, they all retreated from the scene.

5. The Sub-Inspector