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PETITIONER: BINAY KUMAR SINGH

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT:       31/10/1996

BENCH: A.S. ANAND, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      THOMAS. J.      A veritable  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-sheeted 56 persons for various offences committed in connection with the aforesaid. incident, but  due to different reasons only 44 of them were put on  trial. Sessions  Court convicted  37 among  them  of various offences  ranging from  Section 302  IPC (read  with Section 149)  to minor  offences such as Section 429 IPC and sentenced them to rigorous imprisonment for 10 years for the principal 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 sentences of imprisonment only for 10 years  for the  offence under  Sections  302/149  IPC  by enhancing it  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.      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  Mian(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 the Sessions Court would remain  undisturbed. We,  therefore dismiss his appeal

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filed in this Court.      Due to the crowding of many accused person in this case we deem  it convenient to refer to the  individual appellant as far  as practicable by the rank in which the 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.       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 onward tension was mounting up this lacality. Police patrol as well as bandobust  were  provided  and  some  measures,  such  as initiation of  security proceeding  under Section 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 lot of their henchmen  formed themselves  into an unlawful assembly arming themselves  with  deadly  weapons,  gun,  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 (heap of straws) were set blaze. The  occupants who  emerged out of the burning houses were   sot at  by the  appellant though  some of  them could escape either by fleeing off or by hiding from then  spewing barrels of  the firearms  which prowled  for them.  when the assailants were  satisfied that  they had accomplished their objects they. all retreated from the scene.      The  Sub-Inspector  of  Jehanabad  Police  Station  got information From  Rabindra Bhagat (PW-36) about some serious occurrence involving  arson and  a large number of people He then rushed  to the scene. He spotted PW-32 (Sukhdev Bhagat) and elicited   statement  from him (Ext.14). he Forwarded it to the  Police Station  where an  Fir was  prepared  on  its basis. Investigation  was commenced  and inquests  were held autopsy on  the dead bodies was arranged and hospitalisation of  the   injured  was   ensured.  On   completion  of   the investigation charge sheet was laid as aforesaid.      We do  not propose  to refer  to the evidence regarding the injuries  sustained by  the victims  nor to  the records showing the  extensive damage  inflicted on  the  cattle  as well as  to the  dwelling houses.  The trial  court and High Court have   dealt with those aspects in extenso and reached findings substantially  in favour  of  the  prosecution.  In fairness to  all the  learned senior  counsel(who argued for the appellants)  we must  observe that none of them disputed before us that on the dreadful night the devastating carnage took place  at this place in which those 13 persons died and a   number of  other persons  were injured  at the  hands of armed assailants.  The nub  of the  points stressed  by  the leaned  counsel  is  that  these  appellants  were  not  the miscreants  involved   in  the  incident.  In  other  words, basically the  only point  now to  be considered  is whether appellants were  also  among  the  assailants  in  the  said occurrence ?      A number  of witnesses examined by the prosecution have identified these  assailants  in  the  trial  court.  Leaned Sessions Judge  and the High court did place reliance on the evidence of  large  of  such    witnesses  on  that  aspect. However, the trial court did not act on the evidence of Raja Dev Bhagat  (PW-5), Peru Bhagat  (PW-2), Feken Yadav (PW-17)

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and Chandrika paswan (PW-19).      Learned counsel  pointed out  that  neither  the  trial court   nor the  High court has treated Ext.14 (statement of PW-32 sukh  Dev Bhagat)  as forming  the FIR  in this  case, instead the  statement made  by PW-36  Ravindra Bhagat which was marked  as   Ext.10/3 was treated as the FIR. True it is that before  the Sub  Inspector of  Jehanabad Police Station (PW-42 Kalika  Prasad) could record the statement of Sukhdev Bhagat (PW-32)  some information  had  already  reached  the Police Station  when Rabindra  Bhagat (PW-36)  went there by early   morning. It  has  been  marked  as  Ext  10/3.  That information  was   entered  in  the  station  diary  in  the following words.      At this time Rabindra Bhagat Son of      Soharai Bhagat  resident  of  Paras      Bigha, P.s Jahanabad came to Police      Station accompanied by Bhangi Yadav      resident of village Titai Bigha and      gave the  information that the sons      (probably he  meant sons  and grand      sons) of  late Ram  Niranjan Sharma      had collected  with large number of      persons in  his    collected,  with      large number  of persons    in  his      village and  they have set  fire to      the houses  and piles of straws and      had fled  away seeing  the fire and      he  was not aware of the full facts      as to what had happened."      But we do not f ind any error on the part of the police in not treating Ext 10/3 as the first information statement. for the  purpose of  preparing the  FIR in  this case  It is evidently a cryptic information and is hardly sufficient for discerning  the   commission  of   any  cognizable   offence therefrom. Under  Section 154  of the  Code the  information must unmistakably  relate to  the commission of a cognizable offence and it shall be reduced to writing (if given orally) and shall  he signed  by its  maker. The next requirement is that the  substance thereof  shall be entered in a book kept in the  police station  in such form as the State Government has prescribed.  First Information  Report (FIR)  has to  be prepared and  it shall be forwarded to the magistrate who is empowered to  take cognizance  of  such  offence  upon  such report. The  officer incharge  of a  police station  is  not obliged to  prepare FIR on any nebulous information received from somebody  who does not disclose any authentic knowledge about commission  of the  cognizable offence.  It is open to the officer  incharge to collect more information containing details about  the occurrence,  if available, so that he can consider whether  a cognizable  offence has  been  committed warranting investigation  thereto. (Tapinder Singh vs. state of Punjab,  1971 (1) SCR 599; Some Bhai vs. state of Gujarat AIR 1975  SC 1453;  sc 1453; State of U.P. vs. P.A.Madhu AIR 1984 sc 1523).      Learned counsel  who argued for the appellant, however, contended that  first information  statement in this case is neither Ext.14  nor Ext.10/3,  but it  should have  been the statement which  PW-32 (Sukhdev  Bhagat)  had  given  before Jehanabad  Police  Station  much  prior  to  the  other  two statements. Learned  counsel submitted  that the police had, for reasons  best known  to them,  hushed up that statement. Basis for  the above submission is the evidence given by DW- 19 (  Nawal Kishore Prased) a member of the Board of Revenue of the State of Bihar who conducted an official enquiry into the administrative  lapses involved  in  this  incident.  Of

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course, DW-19  claimed that  one Sukhdev Bhagat had told him during  such  enquiry  that  his  first  statement  was  not recorded at the village but at the police station.      In this  context, we  may point out that Sukhdev Bhagat (PW-32) has  stated in  his evidence in the trial court that many officials  would have recorded his statements though he could not  remember precisely  whether an  officer by  name, Nawal Kishore  Prasad would  have examined  him.  PW-32  has further said  in his  evidence  that  Ext.14  statement  was recorded at  the place  of occurrence  and that  he had  not given any  other statement  to the  police. If  he was to be contradicted with  any other  statement, the  defence should have adopted  the procedure prescribed in Section 145 of the Evidence Act. Learned counsel contended that it is enough if he was  asked questions  in cross-examination with reference to such  statement. In  support  of  it  he  relied  on  the decision of this Court in Bhagwan Singh State of Punjab, AIR 1952 SC 214.      The credit  of a  witness can  be impeached by proof of any statement  which is  inconsistent with  any part  of his evidence in  court. This  principle is delineated in Section 155(3) of the Evidence Act and it must be borne in mind when reading Section  145 which  consists of  two  limbs.  It  is provided in the first limb of Section 145 that a witness may be cross-examined  as to  the previous statement made by him without such writing being shown to him. But the second limb provides that  "if it  is intended  to contradict him by the writing his  attention  must,  before  the  writing  can  be proved, be  called to those parts of it which are to be used for the  purpose of  contradicting him."  There  is  thus  a distinction between  the two  vivid limbs,  though subtle it may be.  The first  limb does  not envisage  impeaching  the credit of  a witness,  but it  merely enables  the  opposite party to  cross-examine the  witness with  reference to  the previous statements  made by  him.  He  may  at  that  stage succeed in  eliciting materials  to his benefit through such cross-examination even  without resorting  to the  procedure laid down  in the  second limb.  But if  the witness disowns having made  any statement  which is  inconsistent with  his present stand his testimony in Court on that score would not be vitiated until the corss-examiner proceeds to comply with the procedure  prescribed in the second limb of Section 145.      In Bhagwan  Singh’s case, Vivian Bose J. pointed Out in paragraph   that during Cross-examination of the witnesses s concerned  the  formalities  prescribed    Section  145  are complied With.  The cross-examination in that case indicated that every circumstance intended to be used as contradiction was put  to him  point by  point  and  passage  by  passage. Learned Judges  were called  upon to  deal with  an argument that witnesses attention should have been specifically drawn to that  passage in   addition thereto. Their Lordships were however satisfied  in that  case that the  Procedure adopted was in  substantial compliance  with  Section 145, and hence held that  all that  is required is that the witness must be treated fairly and must be afforded  a reasonable oportunity of explaining  the contradictions  after his  attention  has been drawn  to them  in a fair and reasonable manner. On the facts  of   that  case,  there  is  no    dispute  with  the proposition laid therein.      So long  as the attention of PW 32 (Sukhdev Bhagat) was not drawn  to the statement attributed to him as recorded by DW-19(Nawal Kishore  Prasad) we  are not persuaded to reject the evidence  of PW  32 that  he gave Ex.14 statement at the venue of  occurrence and  that he  had not  given any  other statement earlier thereto.

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     Learned  counsel for the appellant next pointed out as a peculiar  feature in the case that none of the injured had identified the  assailants (except  two or three appellants) but only  those witness  who did not sustain any injury have claimed to  have identified  a bulk  of them. Even if so, it cannot have  any adverse  impact on  the credibility  of the witness relied  on by the two courts as it could happen many a times  that person sustaining injuries in a mass of attack night not be in the same position to observe men  and events as the  non injured  persons. It  is quite probable that the vision of  the injured  might get blurred, as their focus of attention would  instinctively get  diverted to the injuries sustained by them. They could then be in a less advantageous position to watch or observe the events than the non-injured witnesses.      That apart,  there is  no justification  in  drawing  a hiatus between injured witnesses and noninjured witnesses in this case  as for  the capacity  to identify  the assailants while  in   action.  PW-4  (Babanand  Bhagat),  PW-9  (Doman Bhagat), PW-14  (Krishna Das),  PW-27 (Damyanti Devi), PW-33 (Ajay Kumar)  are the  witnesses who  sustained injuries  in this episode.  Among them  PW-14 is  a small boy who said he got up from sleep on hearing gun shots and even at the first sight of  occurrence  he  fell  under  a  shock  and  become unconscious. The other injured witnesses have said that they woke up from sleep and on seeing the surroundings in flames, they ran  for life  and some  sustained gun shots during the flight while  the others  sustained burns.  If this  was the position, we  cannot  find  fault  with  then  as  to  their inability to identify a good number of assailants.      Some of the appellants have putforth the plea of alibi. The appellants  who resorted  to the  plea of  Alibi in this case are  A-1 (Krishnadev),  A-2 (Shyam  Sunder Singh),  A-3 (Madan Mohan  Sharma )  and A-34  (Vinay  kumar  Singh).  As against the  testimony of  a large  number of  witnesses who claimed  to   have   noticed   those   appellants   actively participating in  the occurrence  the above noted appellants have led  evidence to  show that   during  the relevant time they were  at far  away places.  Such plea  was emphatically reiterated by the learned counsel in this Court also.      According to  the appellants  - Krishnadev  (A  1)  and Shyam Sunder  Singh (A-2)  on  5.2.1980  evening  they  were arrested by  police in  connection with  case  No.9(2)90  of Kankerbagh police  station  and  was  remanded  to  judicial custody by  the Chief  Judicial Magistrate,  Patna and  were interned in the Central Jail, Patna where they remained till 19.2.1980 and  were shifted  to sub  jail at Jehanabad where they remained  till 23.2.1980  until they  were released  on bail. Those  appellants examined  official and  non-official witnesses to  prove the plea of alibi; the Public Prosecutor in the  trial court  had mounted  a severe  onslaught on the said plea  by  contending that jail records were manipulated at the  instance of  these appellants, though perhaps in the later period  of incarceration  in connection  with the said case those accused might have been detained in jail.      Appellant Madan Mohan Sharma (A-3) advanced his plea of alibi by  saying that  he was  on the  security guard  o   a Minister of  the Bihar  Government (Thakur Prasad Singh - DW 38) and that on the night of 6.2.1980 a dinner was hosted by that Minister  in his official residence and that A-3 (Madan Mohan Sharma)  was then  attending his  security duty at the residence of  the Minister.  The said  appellant examined  a number of  witnesses including  the Private Secretary to the Minister and  some MLAs,  besides the  Minister himself,  to establish his  plea. Public Prosecutor who crossexamined the

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witnesses took  the stand  that PW-38  had stoopped  down to speak to the false evidence only to salvage himself from the murk of  accusation flung  on  him  inside  the  legislative assmebly that  someone in his personal staff played the main role in the carnage which shocked Bihar State.      Appellant,  Binay   Kumar  Sharma  (A-32)  adopted  the defence that  he was  admitted as  an inpatient  at  Nalanda Medical College  Hospital with  accute appendicitis  and was treated there  for a  long period which covered this crucial period of  6.2.1980 also. He examined Dr. Binod Bihari Sinha (DW-6) and  DIG of  Police   Kapil Dev Dubey (DW-8) to prove his plea.  The Public  Prosecutor who  cross-examined  those witnesses assailed  DW6 -  Doctor suggesting  that he became privy to the fabrication of documents to concoct the plea of alibi.      The  trial   court  and   the  High  Court  concurently replelled in  toto, the plea of alibi  putforth by the above appellants after  dealing, in  extenso, with  the  materials produced   them in the Court in support of the plea. Learned counsel  who   argued  for  the  appellants  in  this  Court submitted first  that the  strict view  adopted by  the  two Courts bellow  that unless the plea of alibi is conclusively eastablished no  benefit. would enure to the accused, is not a sound  proposition  in  criminal  cases.  Learned  counsel further contended that if an accused succeeded in creating a reasonable doubt regarding the- possibility of himself to be elsewhere then the plea of alibi need acceptance.      We must  bear in  mind  that  alibi  not  an  exception (special or  general) envisaged in the Indian  Penal code or any other  law. It  is only a rule of evidence recognised in Section  11  of  the  Evidence  Act  that  facts  which  are inconsistent  with   the  fact   in  issue   are   relevant. Illustration  (A)   given  under   the  provision  is  worth reproducing in this context:      "The   question    is   whether   A      committed a  crime at Calcutta on a      certain date; the fact that on that      date, A was at Lahore is relevant."      The Latin word alibi means "elsewhere" and that word is used for  convenience when  an accused  takes recourse  to a defence line  that when  the occurrence took place he was so far sway  from the  place of occurrence that it is extremely improbable that  he would have participated in the crime. It is basic  law that  in a criminal case, in which the accused is alleged  to have  inflicted physical  injury  to  another person, the  burden is  on the prosecution to prove that the accused was present at the scene and has participated in the crime. The  burden would  not be  lessened by  the mere fact that the  accused has  adopted the defence of alibi The plea of the  accused in  such cases  need be considered only when the  burden     has   been  discharged  by  the  prosecution satisfactorily.  But   once  the   prosecution  succeeds  in discharging the  burden it  is incumbent on the accused, who adopts the plea of alibi to prove it with absolute certainty So as  to exclude  the possibility  of his  presence at  the place of occurrence. When the presence of the accused at the scene of  occurrence has  been established satisfactorily by the prosecution  through  reliable  evidence,  normally  the court would  be slow  to believe any counter evidence to the effect that  he was  elsewhere when the occurrence happened. But if  the evidence  adduced by  the accused  is of  such a quality and  of such a standard that the court may entertain some reasonable  doubt regarding  his presence  at the scene when the  occurrence took place, the accused would no doubt, be entitled  to the  benefit of  that reasonable  doubt. For

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that purpose,  it would  be a  sound proposition  to be laid down that  in such  circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for  establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath pandey vs state  of   Utter  Pradesh   (1981)  2  SCC  166;  state  of Maharashtra vs Narsingrao Gangaram Pimple AIR 1984 SC 63).      The appellants  Krishnadev (A-1) and Shyam sunder Singh (A-2) adopted  the defence  that they  were taken to Central Jail, Patna  on 5.2.1980  on a  remand order  passed by  the Chief Judicial  Magistrate, Patna.  We need not vex our mind with the  evidence pertaining  to the  internment  of  those appellants in  the sub-jail,  Jehanabad from  19.2.1980 till 23.2.1980 Let  that be  as they say. But their  detention in the Central  Jail) Patna  from  5.2.1980 which continued any day beyond  6.2.1980 is  the crucial  period so  far as this case is  concerned In  considering that.  crucial aspect the first question  to be pondered over is, why should they have been arrested  at all.  Their case  is that  one Anil  Kumar lodged a  complaint with  the police alleging that these two appellants had snatched Rs.10/-from one of the and so an FIR was registered against them which included the offence under Section 379  IPC and the arrest is said to have been made on its basis.  The two Courts below have observed that the said Anil Kumar is a fictitious character and he was never traced out Later. It was beyond comprehension for the two Courts as to why  these two  appellants did  not even  move  for  bail inspite of very clear advantageous factors for them. One is, they are  nephews of  appellant Madan Mohan Sharma (A-3) who was a  police personnel  on  the  security  of  one  of  the Ministers and  he was  stationed at  Patna itself.Second is, bailing out  the appellants  would have been   only a matter for making a motion as the offences lodged against them were seemingly  trivial.  Besides  those  incongruity,  the  very unsatisfactory way  the gate  register of  the Central Jail, Patna was  maintained has  been specifically  noticed by the two Courts.  In view  of all  such broad  circumstances  the trial  judge  agreed  with  the  contention  of  the  public prosecutor  that  a  bogus  complaint  with  the  fictitious complaint would  have been  created in  advance for using it for a  plea of  alibi. After  exhaustively dealing  with the evidence on  this aspect, the High Court also concurred with that view.      Of course,  Sri UR  Lalit, learned  Senior Counsel  has vehemently argued  that the  courts should have presumed the genuineness of  all official  records and accepted the proof as  more  than  reasonably  sufficient  to  discharge  their burden. We  shall not forget that presumption is only a rule in the realm of burden of proof and the reasons concurrently weighed with  the two courts below for disbelieving the plea of alibi put forth by these two appellants are quite sturdy. At any  rate, in  an appeal  by special  leave granted under Article 136  of the  Constitution, this  Court would  not be inclined to  upset the finding of fact based on such weighty reasons, more  so when  the reasons  advanced  by  both  the courts in support of the finding appeal to us also.      Sri UR  Lalit, learned  Senior Counsel,  next contended that the plea of Alibi advanced by the appellant Madan Mohan Sharma (A-3)  that he  was on  guard duty  in the Minister’s bungalow should have been accepted. The distance between the Minister’s residence  and the  place  of  occurrence  is  60 Kilometres. It  is possible  for anyone  to cover  the  said distance in  two hours.  Perhaps, he was doing guard duty in the bungalow  of the Minister but to hold that he was at the Minister’s bungalow  on the  night of  6.2.1980 the evidence

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must be very credit-worthy. Those defence witnesses who have spoken to  this aspect,  including the Minister himself (DW- 36),  have  simply  said  long  after  that  date  that  one particular person  was doing  guard  duty  on  6.2.1980.  It should be  remembered that  Madan Mohan  Sharma (A-3) had no special role  to  play  during  the  dinner  hosted  by  the Minister. The  witness could  not say  who  were  the  other persons on guard duty on any other day. Those aspects apart, it is  revealed in the evidence of the Minister (DW-36) that on the  next day  of occurrence  a furore had erupted in the Bhiar legislative Assembly with the allegation that a member of the  personal staff  of the Minister, by name Madan Mohan Sharma, was  involved in  the Paras  Bigha massacre and then the Minister  has said  on the  floor of  the Assembly  that Madan Mohan  Sharma was  not on  his personal  staff but was only a  security guard.  He did  not say, in the Legislative Assembly, that  Madan  Mohan  Sharma  was  at  his  official residence at  Patna during  the  relevant  time.  For  these reasons, we  are satisfied that the trial court and the High Court have rightly rejected his plea of alibi.      Sri Sushil  Kumar, learned  Senior Counsel  arguing for the appellant  Binay Kumar  Singh (A-34) pursued the plea of alibi put  forth by  that accused  in the  trial  court.  He examined  one  Dr.  Binod  Bihar  Singh  who  was  Associate Professor of  Medicine at  Nalanda Medical College, Patna as DW-36. The  witness of  course, said  that  appellant  Binay Kumar Singh  was admitted  as  an  in-patient  of  the  said Medical College  Hospital for  appendicitis and was not in a position to  move out  of his  bed  even  on  6.2.1980.  The witness said  this with  reference to  the  Bed-head  Ticket produced by  him. But  the  cross-examination  of  DW-6  has exposed the falsity of his evidence. That a patient admitted for acute case of appendicitis in a Medical College Hospital was never   shown to a surgeon creates a serious doubt as to whether  this appellant was really admitted in that hospital as claimed  by DW6.  The witness  said in  cross-examination that the  patient left the hospital soon after his admission but again  returned on the next day. PW-6 also admitted that the Bed-head  Ticket referred  to by him did not contain any entry made  by him. No mark of identification of the patient was noted  in such  bed-head Ticket and DW-6 had no previous acquaintance with  this appellant.  No  other  document  was produced  to   support  the  plea.  On  such  a  meagre  and unsatisfactory evidence,  the two  Courts below have rightly discarded his plea of alibi.      Turning back  to  the  prosecution  evidence  regarding identification of  the appellants  Sri Sushil Kumar, learned Senior Counsel  adverted to certain anomalies which crept in the deposition  of some  witnesses; one such anomaly relates to the evidence against appellant Binay Kumar Sharma.      There were  two accused  in this case bearing that name Binay Kumar Sharma. One of them is the appellant in Criminal Appeal No.277  of 1987  and he  was arrayed  as A-34  in the trial court.  The other Binay Sharma is from Sarthua Village and he has jumped the bail and hence his trial was separated from the rest of the accused as per order of the trial court dated 15.5.1982.  It is  true that PW-11 ( Mithlesh Paswan ) who was  examined  in  Court  on  29.11.1982  mentioned  two persons as Binay Sharma as having been identified by him. On the strength of it, learned senior counsel tried to make out a strong  point as  seriously affecting the prosecution case against appellant  Binay Kumar  Sharma (A-34).  At the first blush, we  too felt  that it has some serious implication on the identification evidence of that appellant, but on closer scrutiny, we  are convinced  that there  is no merit in that

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contention. What PW-11, in fact, said was that he recognised those two  persons ticipating  in the occurrence. It was not as though  he   identified two  persons in  the trial  court bearing that name from out of the accused arrayed.      Arguments were  addressed before  us for reappreciation of evidnece  of the  eye-witnesses on  the strength  of some discrepancies highlighted  from their  testimony. But we are not disposed  to disturb  the concurrent  finding  regarding reliability of  the evidence  of  those  witnesses  on  such discrepancies as  they do not appear to us to be material or serious.      We have  noticed that  Mritunjaya (A-23)  and Parmanand Sharma) and  Madan Mohan  Sharma son  of Ambica  (A-24) were identified by more than two two witnessas as participants in the occurrence.  Out of those witness the testimony of PW-10 and PW-32  was accepted by both courts. As for the remaining appellants both  courts have  accepted the  testimony of  at least three  witnesses each  as referring to each appellant. There is no rule of evidence that no conviction can be based unless a certain minimum number cf witnesses have identified a particular  accused as member of the unlawful assembly. It is axiomatic  that evidence  is not  to be  counted but only weighed and  it is  not the.quantity  of  evidence  but  the quality that  matters. Even  the  testimony  of  one  single witness, if  wholly reliable, is sufficient to establish tho identification of  an  accused  as  member  of  an  unlawful assembly. All the same when size of the unlawful assembly is quite large(as  in this  case) and  many persons  would have witnessed the  incident, it  would be  a prudent exercise to insist on  at least  two relaible witnesses to vouchsafe the identification of  an accused as participant in the rioting. In Masalti vs. The State of utter Pradesh (AIR 1965 SC 202), a Bench  of four  Judges Of  this court  has adopted  such a formula. It is useful to extract it here :      "Where a criminal court has to deal      with  evidence  pertaining  to  the      commission of an office involving a      large number of offence and a large      number of  victims, it  is usual to      adopt the  test that the conviction      could be  sustained only  if it  is      suported by  two or  three or  more      witnesses  who  give  a  consistent      account of the incident."      We feel  that the  said proposition  can profitably  be followed in  this case  also as  the said  proposition   has stood the test of time.      We are  satisfied that  the two  courts have considered thew  evidence   form  the   correct  angle  and  found  the appellants guilty  of the offences keeping in view the above proposition. There is no reason for us to interfere with the conviction and  sentences  passed  on  the  appellants.  The appeals are  accordingly dismissed  Bail bonds  executed  by the appellants  shall stand  cancelled. They  shall be taken into custody to undergo the remaining part of sentence.