MAIN POINT
Once an assembly is held to be unlawful assembly having common object, it is not necessary to assign overt act to all members.

Judgment :-

N.V. Ramana, J.

These appeals are preferred by the appellants/accused aggrieved by the judgment and order passed by the Division Bench of the High Court of Judicature at Patna in Criminal Appeal No. 566 of 1993 whereby the High Court affirmed the conviction and sentence passed by the 8th Additional Sessions Judge, Purnia, Bihar in Sessions Trial No. 28 of 1978 under Sections 302/149, 436/149, 380/149, 323/149, 145 and 147 of the Indian Penal Code against them.

2. The prosecution case, in short, is that in the early hours of 25th September, 1974 appellant Surang Lal Yadav (Accused No. 5), a member of Santhala community, riding on a horse and carrying a sword in his hand entered the village Singhimari leading a mob of about 300 to 400 persons, all armed with various kinds of deadly weapons such as bows, arrows, ballams, bhalas, kulharis, dandas and with burning flames in their hands. The mob led by accused Surang Lal Yadav attacked ruthlessly the Badhyas, a Muslim minority community, most of them were migrants from Bangladesh. The mob went on looting movable properties of the villagers, setting their houses on fire, injuring and killing innocent persons indiscriminately. In the said incident, 14 persons were killed, 47 houses were burnt, several properties were looted and a number of persons were injured. On the basis of a complaint given by one Amzad Ali (PW 2) at about 1 p.m. on 25th September, 1974 to the Assistant Sub-Inspector of Police, an FIR was registered and investigation took place. The genesis of the case is a Government land which was in occupation of the accused persons but allegedly encroached by the Badhyas.

3. After investigation, charge sheet was filed against several persons including the appellants herein. Most of the other accused persons were shown as absconded. The case of 27 accused persons including the appellants was committed for trial. The Trial Court framed charges against 18 accused persons including the appellants. The other accused, who were committed to face trial, had jumped their bail bonds and absconded. Finally, statements under Section 313, Cr.P.C. were recorded in respect of seven accused persons only.

4. To bring home the guilt of the accused, the prosecution has examined in all 38 witnesses. The informant—Amzad Ali was examined as PW 2 who was the eyewitness to the incident. In his examination, he had narrated the whole incident and identified as many as 33 persons in the mob who actively participated in the arson, looting and disclosed their names.

5. PW 1—Dr. V.N. Sinha, the Civil Assistant Surgeon of Sadar Hospital, Purnia who conducted postmortem examination on the dead bodies of six persons found sharp edged piercing injuries and cutting wounds on the bodies of the deceased and he opined that these persons died on account of the ante mortem injuries sustained by them before 48 to 72 hours of their death. Postmortem of other eight deceased persons was carried out by PW 35—Dr. T.P. Chatterjee, the Deputy Superintendent of Kishanganj Hospital who also found sharp edged piercing and cutting injuries and penetrating wounds on the bodies of the deceased. In his opinion, their death occurred within 72 hours.

6. The Trial Court, after considering the conspectus of the circumstances and materials on record, came to the conclusion that the prosecution has successfully proved the guilt of the accused. Accordingly, the Trial Court convicted and sentenced the accused to undergo rigorous imprisonment for life for the offence punishable under Section 302/149, IPC. They were further convicted and sentenced to undergo R.I. for five years for the offence committed under Section 436/149, R.I. for two years for the offence under Section 380/149 and R.I. for one year for the offence under Section 323/149, IPC. Accused No. 5—Surang Lal Yadav was further sentenced to undergo R.I. for one year for the offence punishable under Section 145, IPC whereas the other accused were convicted and sentenced to un