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PETITIONER: RANBIR YADAV

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT21/03/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) ANAND, A.S. (J)

CITATION:  1995 AIR 1219            1995 SCC  (4) 392  JT 1995 (3)   228        1995 SCALE  (2)331

ACT:

HEADNOTE:

JUDGMENT: 1.   These  three  appeals stem from two  related  incidents that  took  place on November 11. 1985 in  village  Laxmipur Taufir   Bind  Toli  and  its  neighbourhood    within   the jurisdiction of Munger Muffasil Police Station in the  State of Bihar.  Before detailing the incidents and discussing the evidence on record relating thereto it will be necessary  to narrate  the  sequence  of events leading to  the  trial  to appreciate  the contentions raised on behalf of  the  appel- lants  regarding  validity  of  the trial  as  well  as  the admission  of evidence of some of the prosecution  witnesses therein. 2.   Over the, first incident that took place at or about  6 A.M.  two cases were registered being Munger  Muffasil  P.S. Case  Nos. 302 and 303 of 1985 and after they  were  jointly investigated,  a  charge-sheet  was  submitted  against  six accused persons under sections 147, 148 and 149/307 IPC  and section  27  of  the Arms Act.  In  respect  of  the  second incident,  which started at mid day and continued  till  the evening,  also  two cases were registered; one in  the  same night on the statement of one Janki Bind being cast No.  304 of  1985 under sections 148, 149/302, 201, 436 and  380  IPC and  the other on the following morning on the statement  of one Mahender Singh being case No. 305 of 1985 under sections 302/149,307,380,436,147,148,  149,  201 and 120  B  IPC  and section 27 of the Arms Act       These two cases  also after joint  investigation  ended in a charge  sheet  against  152 accused  persons  including the three appellants herein  and some absconders. 3.   The   case   relating  to  the  second   incident   was committed to the Court of Session on January 28, 1986 and on receipt  of the order of commitment the  learned    Sessions Judge  transferred    it  to the 10th  Court  of  the  Addl. Sessions  Judge (’10th Court for short) for trial  (Sessions Trial No. 10 of 1986).  Thereafter on Feb- 231

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ruary  25,  1986  case it appears that the  High  Court  had exercised  the  power  of transfer in  the  context  of  the petition filed by some of the accused from jail  complaining that  they could not be accommodated in the Court room as  a result  of  which some of them had to  remain  outside.   It further appears that the other grievance raised was that the Court  was  so crowded that even clerks of the  lawyers  won March 3, 1986 for trial (Sessions Trial No. 83 of 1986). 4.On   March  5,  1986,  one  of  the   absconding   accused surrendered before the 10th Court and prayed for being tried along  with the other accused.  The prayer was  allowed  and charges   were  framed  against  him  in  both  the   cases. Thereafter,  an application was moved on behalf of  some  of the accused persons for amalgamation of the two trials which was  allowed by the 10th Court by its order dated  March  7, 1986.   After  such amalgamation the  Court  framed  charges under  sections  148, 307/ 149 and 307 IPC against  the  six accused  of Sessions Trial No. 83 of 1986 and commenced  the trial.   It  also continued with the trial  of  140  accused persons  of  Sessions Trial No. 10 of  1986,  including  the three appellants, and the six accused who were arraigned  in the other trial also.  While the trials were being proceeded with in the 10th Court the High Court passed an order on  or about  April,  1986 transferring both the cases to  the  5th Court of the Addl.  Sessions Judge, Munger ("5th Court’  for short) for trial. 5.It appears that after the records of the   two    Sessions Trials  were sent to the 5th Court pursuant to the order  of the High Court, its attention was drawn on April 16, 1986 to a  petition sent by some of the accused persons  from  jail. In  that  petition it was stated that on February  25,  1986 when  the  Sessions Trial No. 10 of 1986 was  taken  up  for hearing  on  the  question of framing  of  charges  all  the accused could not be accommodated in the dock meant for them as a result of which some of them had to remain outside.  It was further stated therein that one of the accused,  namely, Bansraj Yadav who was lying seriously ill and was brought on a cot had to kept on the verandah of the court-room and that the court was so crowded that clerks of the learned  lawyers were not allowed to enter and in fact the lawyers themselves had  to  carry  the records.  In the petition  it  was  also alleged that the trial Court (the 10th Court which was  then in  seisin  of  the trials) did not pay any  heed  to  their grievances. 6.   While  disposing  of the above petition the  5th  Court recorded  an order to the effect that to avoid all sorts  of infirmities  and  irregularities and for  redressal  of  the grievance of the accused in general the charges against  all the accused including Lakhan Yadav and Nageshwar Yadav  (two of  the  absconding  accused  who  had  surrendered  in  the meantime)  would be framed afresh.  The order further  reads as follows:-               "...I  must  pout  it  out  that  the  learned               Special  P.P. has submission that the  charges               were explained to the accused persons.  It  is               worth  noting  that if the  said  petition  is               allowed  to  remain undisposed of,  in  future               there may arise complications, particularly at               the   end  of  trial  and  this  way   without               prejudice  to the accused persons it  is  just               proper,  regular and expedient to explain  the               charges  afresh  to all  the  accused  persons               under  the peculiar circumstances; keeping  in               view that there was protest with regard to the               appointment of a lawyer from the defence panel

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             by the               232               accused on the very first day of taking of the               trial  and  keeping in view that  the  accused               persons  did  not  repose  confidence  in  the               defence lawyer appointed by the previous court               and  further  keeping in view  that  they  re-               iterated that they had been prejudiced due  to               the  absence  of their lawyers whom  they  had               appointed-  The misgivings on the part of  the               accused  may not be sound but the  court  will               have to adopt a procedure warranted by law  so               that  neither side feel any sort of  Prejudice               against  the  court.  The confidence  of  both               side  in the working of a court is  the  para-               mount element for the fair trial of any case.               This  court has tried to remove all  sorts  of               infirmities  and irregularities, if any,  with               regard to the procedure adopted for the MA  of               this  important  case.  This  order  will  not               Prejudice either side.  To 27.4.86 for framing               charges  afresh  against the  accused  persons               including  those who have been ordered  to  be               put  on  trial.   The learned  Spl.   P.P.  is               directed to furnish the list of the  witnesses               who may be examined on 30.4.86 and on allotted               working  days  in May’ 86, send  a  production               warrant  for production of  accused  Nageshwar               yadav and   Yadav on 26.4.86 in the Court.  " 7.It  appears that pursuant to the above order charges  were framed  afresh in as much as, (i) new charges under  section 364 read with 149 and 201 read with 149 IPC were added, (ii) the  three  absconding accused persons who  had  surrendered since  the charges were framed by the previous  Court,  were also  arrayed in the charges and (iii) all the charges  were explained to the accused afresh. 8.Thereafter,  while  the  trial  Court  was  examining  the witnesses  produced  by the prosecution an  application  was filed  on  it behalf on April 24, 1987  stating  that  P.W.1 Mahendra  Singh,  P.W.3 Nagendra Singh,  P.W.4  Ram  Chandra Singh  were  discharged after their  examination  and  cross examination  by and on behalf of 137 accused and the  cross- examination  of  P.W.2  Sukhdeo Singh was  deferred  at  the instance of one of the learned advocate appearing on  behalf of some of the accused.  It was further stated therein  that as the charges were recast in the transferee Court the pros- ecution  was  willing  to produce those  witnesses  who  had earlier been examined, cross-examined and then discharged by the  10th  Court for further cross  examination.   In  their rejoinder to the application the accused persons stated that the  said four witnesses who were examined in  the  previous court  should be again examined-in-chief in presence of  all the  accused and then only the defence  would  cross-examine them.   While  disposing of the application  the  5th  Court observed  that  as  all the above four  witnesses  were  not examined  in  presence of all the 140 accused  as  three  of them had surrendered after their evidence was recorded  they might be prejudiced.  The 5th Court therefore, by its  order dated  April 30, 1987, directed the prosecution  to  examine all those four witnesses afresh. 9.Aggrieved by the above order the State filed a  revisional application which was disposed of by the High Court with the following order:-               "Without going into the merits, as to  whether               re-examination of the four witnesses named  in

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             the impugned order is in any way essential for               just  decisions of the case or not  since  the               stand taken before this Court on behalf of the               prosecution is that it does not propose to re-               examine  them  in the trial, it is  enough  to               dispose               233               of  this application with a direction that  in               case  the  defence  applied  to  cross-examine               them,  the  Court may order for  their  cross-               examination  and in case the court feels  that               any  further evidence is essential for a  just               decision  of the case, it may call am  to  the               Court.               The question whether the evidence recorded  by               the  predecessor incharge    of the  court  of               the 5th Addl.  Sessions judge.  Munger, of the               four witnesses named in the impugned order can               be looked into and relied upon by either party               or not shall remain open for consideration  of               the hearing of the trial, The learned Sessions               Judge  shall  proceed with the  trial  without               waiting  for the prosecution to  produce  them               for examination-in-chief." 10.In  course of the trial that followed in accordance  with the  above directions of the High Court two of  the  accused died and, as such, the trial continued with 138 accused.  On conclusion of the trial the Court, acquitted 78 of them  and convicted  and sentenced the other 60 in respect of  all  or some  of  the  charges leveled against them.   Five  of  the convicts  were  sentenced  to  death.   Each  of  the  three appellants before us was convicted under Sections 120B, 148, 302/149,  436/149,  380 and 201/ 149 IPC  and  sentenced  to various  terms of imprisonment including for life.   Against their  convictions  and  sentences all  the  convicts  filed separate sets of appeal and the State of Bihar, in its turn, filed an appeal against the acquittal of others.  Along with the appeals preferred by the convicts and the State the High Court heard the reference made by the trial Court under Sec- tion 366 of the Code of Criminal Procedure, 1973 (’Code’ for short) and disposed of all of them through a common judgment by  rejecting  the  reference,  dismissing  the   Government appeal, allowing the appeal of one of the convicts and  dis- missing  the appeal of all other convicts with  modification in  convictions and sentences of some of them.   As  regards the  three  appellants  before  us,  namely,  Ranbir  Yadav, Sukhdeo  Yadav  and Pandav Yadav, the  High  Court  affirmed their convictions and sentences except for the offences  un- der  Section  120 B IPC.  They have only  moved  this  Court through these three appeals after obtaining special leave. 11.Mr.   Jethmalani, the learned counsel appearing  for  all the  three  appellants contended that the trial  which  took place  in the 5th Court was wholly without jurisdiction  and consequently the convictions and sentences recorded by  that Court were null and void.  In elaborating his contention Mr. Jethmalani  submitted  that the High Court had no  power  to transfer  the case from the 10th Court to the 5th Court  and that  too  by  an  administrative order  at  a  stage  when, admittedly, the trial had already commenced. Mr.  Jethmalani drew  our  attention to Section 194 of the Code  to  contend that a plain reading of the Section would unmistakably  show that  the  power of the High Court to  direct  a  particular Court  to try a case could be exercised only at the  initial stage  where trial was yet to commence and  not  thereafter. He  next  contended  that  the  only  other  section   which

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empowered  the High Court to transfer a case under the  Code was  Section  407  but  such  a  power  could  be  exercised judicially  only  after  complying  with  the   requirements thereof  and hearing the parties.  As, admittedly, the  High Court  did  not exercise such judicial power, the  order  of transfer  whereby the 5th Court acquired jurisdiction,  must be  held to be void and ineffective, argued Mr.  Jethmalani. He lastly contended that such 234 grave  illegality and want of jurisdiction were not  curable under  Section  465  of  the  Code.   In  support  of   this contention  he  relied upon the majority  judgment  of  this Court in A.R. Antulay vs.  R.S. Nayak & Another (1988) 2 SCC 602, 12.Before   considering   the  above  contentions   of   Mr. Jethmalani  we  may  mention that  in  spite  of  sufficient opportunities  given,  the order of transfer passed  by  the High Court was not produced before us.  Needless to say, had it  been produced we would have exactly known the facts  and circumstances  which  prompted the High Court to  pass  that order and clearly apprehended the source of power.  However, from the materials on record which we have already detailed, it  appears that the order was passed by the High  Court  in its  administrative jurisdiction.  Under Article 227 of  the Constitution  of India every High Court has  superintendence over all Courts and Tribunals throughout the territories  in relation  to which it exercises jurisdiction and  its  trite that  this power of superintendence entities the High  Court to  pass orders for administrative exigency and  expediency. In  the  instant  case it appears that the  High  Court  had exercised  the power of transfer in the context of  the  pe- tition  filed by some of the accused from  jail  complaining that  they could not be accommodated in the Court room as  a result  of  which some of them had to  remain  outside.   It further appears that the other grievance raised was that the Court  was so crowded that even clerks of the  lawyers  were not  being  allowed  to enter the Court room  to  carry  the briefs.   Such  a ,situation was obviously  created  by  the trial  of a large number of persons.  If in the  context  of the  above  facts the High Court had exercised  its  plenary administrative  power to transfer the case to the 5th  Court which,  we  resume had a bigger and  better  arrangement  to accommodate  the accused, lawyers and other  connected  with the   trial  no  exception  can  be  taken  to   the   same, particularly by them at whose instance and for whose benefit the power was exercised.  Mr. Jethmalani, however, contended that administrative power could not be exercised at a  stage when  judicial power was not only available and  operational but was equally effective and efficacious.  According to Mr. Jethmalani, if the former was not contained the latter would be nugatory. 13.We arc unable to share the above view of Mr.  Jethmalani. So  long  as  power  can be  and  is  exercised  purely  for administrative   exigency   without   impinging   upon   and prejudicially  affecting  the  rights or  interests  of  the parties to any judicial proceeding we do not find any reason to  hold  that  administrative powers must  yield  place  to judicial powers simply because in a given circumstance  they co-exist.  On the contrary, the present case illustrates how exercise  of  administrative  powers  were  more  expedient, effective  and efficacious.  If the High Court had  intended to exercise its judicial powers of transfer invoking Section 407  of the Code it would have necessitated compliance  with all the procedural formalities thereof besides providing ad- equate  opportunities  to the parties of  a  proper  hearing

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which,  resultantly, would have not only delayed  the  trial but  further  incarceration of some of the accused.   It  is obvious,   therefore,   that  by  invoking  its   power   of superintendence, instead of judicial powers, the High  Court not  only redressed the grievances of the accused and  other connected with the trial but did it with utmost dispatch. 235 14.Coming now to A.R. Antulay case (supra) we find that  the principles  of  law laid down in the  majority  judgment  to which  Mr. Jethmalani drew our attention have no  manner  of application herein.  There questions arose as to whether  i) the  High Court could transfer a case triable  according  to Criminal Law Amendment Act, 1952 (’1952 Act’ for short) by a Special Court constituted thereunder to another Court, which was  not  a Special Court and ii) the earlier order  of  the Supreme  Court  transferring  the case  pending  before  the Special  Court to the High Court was valid and  proper.   In answering  both  the questions in the negative  the  learned Judges,  expressing  the  majority view,  observed  that  i) Section  7(1) of the 1952 Act created a condition which  was sine qua non for the trial of offences under Section 6(1) of the  said  Act.   The  condition  was  that  notwithstanding anything contained in the Code of Criminal Procedure or  any other  law  the  said offence shall be  triable  by  Special Judges  only.  By express terms therefore it took  away  the right  of  transfer of cases contained in the  Code  to  any other  Court  which  was not a Special Court  and  this  was notwithstanding anything contained in Section 406 and 407 of the  Code  and ii) the earlier order of  the  Supreme  Court transferring  the case to the High Court was not  authorised by law, namely, Section 7(1) of the 1952 Act and the Supreme Court by its direction, could not confer jurisdiction on the High  Court of Bombay to try any case for which it  did  not possess such jurisdiction under the scheme of the 1952  Act. As in the present case the 5th Court was competent under the Code  to  conduct the Sessions trial the order  of  transfer conferring  jurisdiction  to that Court and the  trial  that followed cannot be said to be bad in law. 15.Since  we have found that the order of transfer was  made by the High Court in exercise of its administrative  powers, which  was available to the High Court under Article 227  of the  Constitution  of  India  the  question  raised  by  Mr. Jethmalani  relating to the competence of the High Court  to exercise  powers under Section 194 of the Code need  not  be answered.   Consequently, we need not look into  the  inter- pretation  of Section 194 of the Code as given by the  Court in  Kehar  Singh  vs. State (1988) 3 SCC 609  to  which  our attention  was drawn by Mr. Jethmalani.  For  the  foregoing discussion  we find no merit in the first contention of  Mr. Jethmalani. 16.Mr.  Jethmalani next contended that having regard to  the facts  that the 5th Court had, by its order dated April  16, 1986  decided  to frame charges afresh against  the  accused persons,  including those three who were later put on  trial after  their surrender and that pursuant thereto  it  framed charges  and  proceeded with the trial,  the  earlier  trial conducted by the 10th Court must be held to have come to  an end,  and  that necessarily meant that the evidence  of  the four  witnesses,  namely, Mohinder  Singh,  Nagender  Singh, Sukhdeo Singh and Ramchandra Singh who were examined therein could not be relied upon by the 5th Court for recording  the impugned order of conviction and sentence.  According to Mr. Jethmalani, the general principle of law is that a Judge  or Magistrate  can decide a case only on the evidence  recorded by  him and the departure  from this salutary  principle  is

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permissible  only in those cases where he decides to  invoke Section 326 of the Code to exercise his judicial  discretion to act on        evidence recorded by     his predecessor or partly re- 236 corded by his predecessor and partly re corded by him.   Mr. Jethmalani  submitted that as in the instant case the  trial Court  had exercised its discretion to hold a de novo  trial reference to and reliance upon any evidence recorded in  the earlier  trial  were patently illegal and  incompetent.   In support  of this contention Mr. Jethmalani relied  upon  the decision  of  this Court in Pyare Lal vs.  State  of  Punjab (1962) 3 SCR 328.  While on this point Mr. Jethmalani lastly contended  that  once  the trial  Court  had  exercised  its judicial discretion to hold a fresh trial, the High  Court’s interference  with  the same was not only  impermissible  in view  of the embargo of Section 397 (2) of the Code but  was also unsustainable on merits. 17.To appreciate the above contentions of Mr. Jethmalani  it will be imperative to first refer to the legislative history behind  Section  326 of the Code.  In the Code of  1898  the corresponding  section  was Section 350 and, so  far  as  is material for our purposes mad as under:               (1)  " Whenever any Magistrate,  after  having               heard  and recorded the whole or any  part  of               the evidence in an enquiry or a trial, and  is               succeeded  by another Magistrate who  has  and               who    exercises   such   jurisdiction,    the               Magistrate  so  succeeding  may  act  on   the               evidence  so recorded by his  predecessor,  or               partly recorded by his predecessor and  partly               recorded  by  himself or he may  resummon  the               witnesses and recommence the inquiry or trial.               Provided as follows:               (a)   ha  any  bid the accused  may  when  the               second  Magistrate commences  his  proceedings               demand that the witness or any of them be  re-               summoned and reheard;               (b)the  High  Court  or,  in  cases  tried  by               Magistrates   subordinate  to   the   District               Magistrate,   the  District  Magistrate   may,               whether  there be an appeal or not, set  aside               any  conviction passed on evidence not  wholly               recorded  by  the Magistrate before  whom  the               conviction was held if such Court or  District               Magistrate is of opinion that the accused  has               been  materially prejudiced thereby,  and  may               order a new inquiry or trial."                                   (emphasis supplied) In interpreting the words " ceases to exercise  jurisdiction therein"  in  the above quoted sub-Section (1) some  of  the High  Court-, held that section 350 was intended to  provide for  a case where an inquiry or trial had  commenced  before one  incumbent  of a particular post and  that  officer  had ceased  to  exercise  jurisdiction  in  that  post  and  was succeeded by another officer, whereas some other High Courts held  that it referred to the inquiry or trial and not to  a particular  post Similarly the words "succeeded  by  another were  interpreted by some High Courts has as importing  that the  the first Magistrate had left his post but  other  High Courts   held  that  the  word  "succeeded"  should  not  be constructed  in the narrower sense. Though in our  view  the word  therein appearing after the words ceases  to  exercise jurisdiction  in  the context of the preceding words  in  an enquiry  or trial admits of no doubt that it refers  to  the

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enquiry  or trial the legislature throught it  necessary  to add the following sub-section to Section 350(1) by Section 4 of  Act XVIII of 1923, to put the issue beyond any  pale  of controversy.               "(3)  When  a case is  transferred  under  the               provisions of this Code from one Mag-               237               istrate to another the former shall be  deemed               to cease to exercise jurisdiction therein  and               to  be  succeeded  by the  latter  within  the               meaning of sub-section (1)" 18.The next legislative change in Section 350 of the Code of 1898  was  brought about by Act 26 of 1955.  With  that,  in subsection (1) of the Section for the words " or he may  re- summon  the witnesses and recommence the inquiry  or  trial" and the proviso, the following proviso was substituted:               "Provided that if the succeeding Magistrate is               of opinion that further examination  of any of               the witnesses whose evidence has already  been               recorded  is  necessary in  the  interests  of               justice,  he may resummon such  witnesses  and               after such furtherexamination,       cross-               examination  and re-examination    if any,  as               he   may   permit,  the   witness   shall   be               discharged.  " 19.  When the Code of 1898 was repealed and  replaced by the Code Section 350 was     renumbered   as  326  without   any textual change.  However, later on by the Criminal Procedure Code  (Amendment) Act, 1979 the section was amended to  vest the  power  and  discretion  exercisable  thereunder  by   a Magistrate   to a Judge also.  With the amendments  detailed above  Section  326 read at the time the trial  in  question took place, and still reads as follows:               "(1)  Whenever any Judge or  Magistrate  after               having  heard  and recorded the whole  or  any               part  of  the  evidence  in an  inquiry  or  a               trial,  ceases to exercise  jurisdiction  such               jurisdiction, the Judge or MagistrateJudge               or  Magistrate who has and who exercises  such               jurisdiction   Judge  or   Magistrate   so               succeeding may act on theevidence  so  corded               by  his  predecessor and  partly  recorded  by               his   predecessor  and  partly   recorded   by               himself;               Provided  that  if  the  succeeding  Judge  or               Magistrate  is  of the  opinion  that  further               examination  of  any of  the  witnesses  whose               evidence   has   already  been   recorded   is               necessary  in the interest of justice. he  may               re-summon  any  such witness, and  after  such               further  examination,  cross-examination   and               reexamination,  if any, as he may permit,  the               witness shall be discharged.               (2)   When  a  case is transferred  under  the               provisions of this Code from one Judge to another               Judge  or  from  one  Magistrate,  to  another               Magistrate,  the  former shall  be  deemed  to               cease to exercise jurisdiction therein and  to               be  succeeded   by  the  latter,  within   the               meaning of sub-section   (1).                (3)    xxx      xxx       xxx                            (emphasis supplied) 20.  From a comparative reading of subsection 11) of Section 350  as  it stood prior to its amendment in 1955 and  as  it stands  since  then  with  the change  in  its  numeral  and

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inclusion  of  the  word ’Judge’ therein we  find  that  the discretion  earlier  given to the Presiding Officer  of  the Court to act   on  the evidence recorded by his  predecessor or partly recorded by his predecessor and partly recorded by him  still  remains.   But so far as  the  other  option  is concerned,  while earlier he could resummon the witness  and recommence  the inquiry or trial  which necessarily meant  a de  novo trial  he can now only resummon a witness  who  has already been examined for further examination and  discharge him after such further examination cross-examination and re- examination  if any.  It is evident therefore that  now  the Magistrate or Judge can exercise his judi- 238 cial  discretion only for further examination of  a  witness already examined and nor for fresh examination of  Witnesses for   a  fresh  trial.   Obviously,  keeping  in  view   the inevitable frequent changes in the office of the  Magistrate and  Judge  and  in  order to provide  a  speedy  trial  the legislature has taken away the well established right of the accused to claim a de novo trial and that of the Court to so direct  by  express words of the amending statute  of  1955. Considered  in that perspective we are of the  opinion  that the  case of Payare Lal (supra) which was decided when  Sec- tion 350 was operating in the field without its amendment of 1955  has no relevance here.  In that case, Payare  Lal  and another were prosecuted for offences under Section 5 (2)  of the Prevention of Corruption Act, 1947.  The 1952 Act  which laid down the procedure for trial of such offences  required the  trial to be held by a Special Judge appointed under  it and  in  accordance with certain provisions of the  Code  of 1898  as  mentioned in Section 8 of 1952 Act.   The  Special Judge  accordingly  heard the evidence but before  he  could deliver the judgment he was transferred and was succeeded by another Special     Judge.   The latter did not  recall  the witnesses  and  did  not hear the evidence  over  again  but proceeded  with the trial without any objection from  either side from the stage at which his predecessor had left.   The trial  ultimately  ended  in conviction and  in  appeal  the Punjab High Court held that Section 350 of the Code of  1898 applied  to  the  trial before a Special Judge  in  view  of Section  8(1)  of  the 1952 Act  and  that,  therefore,  the succeeding Special Judge was entitled to proceed on the evi- dence  recorded  by his predecessor.  In setting  aside  the above finding of the Punjab High Court this Court held  that the 1952 Act did not intend that Section 350 of the Code  of 1898  would be available as a/rule of  procedure  prescribed for  the  trial of warrant cases to a Special Judge  as  the Special  Judge was not a Magistrate for the purpose  of  the Act  nor did the Act require that he was deemed to be  such. This  Court further held that the succeeding Special  Judge, therefore,  had no authority under the law to  proceed  with the trial of the case from the stage at which his  predeces- sor  had left it and that the conviction of  the  appellants could not be supported as he (the succeeding Special  Judge) has  not heard the evidence himself That necessarily  meant, according  to  this  Court that the  proceeding  before  the succeeding  Special  Judge  was  clearly  incompetent.    In negativing  the contention of the  respondent-State  therein that  the defect was a mere irregularity and the  conviction of  the  appellant  could, if sustainable  on  evidence,  be upheld  under  Section  537  of  the  Code  of  1898  (which corresponds  to  Section 465 of the Code) this  Court  held, relying upon the following observations of the Privy Council in Pulukupi Kotayya vs.  King Emperor AIR 1947 PC 67:               "When  a  trial  is  conducted  in  a   manner

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             different from that prescribed by the Code (as               in N.A. Subramania Iyer’s case 1991 LR 28 I.A.               257),  the  trial is bad and  no  question  of                             curing an irregularity arises; but if the tria l               is  conducted  substantially  in  the   manner               prescribed by the Code,  but some irregularity               occurs  in  the course of  such  conduct,  the               irregularity  can be cured under section  537,               and none the less so because the  irregularity               involves, as must nearly always by the case, a               breach  of  one  or  more  of  the  very  com-               prehensive provisions of the Code." that  the case fell within the first category  mentioned  by the Privy Council, being 239 one of want of competency and not of irregularity.  With the above findings the Court sent the case back for retrial. 21.  Coming  now to the case in hand we find from the  order passed  by the 5th Court on April 16, 1986 that the  primary reasons,  which weighed with it for framing  charges  afresh and  directing  the  prosecution  to  furnish  the  list  of witnesses  to  be examined on its behalf  were,  that  three accused  had surrendered after charges had been  framed  and four  witnesses  for the prosecution had  been  examined-in- chief  and three of them discharged after cross  examination and  that the accused persons had been prejudiced  in  their defence  as,  instead of a lawyer of their choice  a  lawyer from  the defence panel had appeared on their behalf on  the first  day of the trial.  Therefore as against  the  present appellants  and the other accused who were being tried  with them the question of framing charges afresh by the 5th Court did  not  and  could not arise; and,  in  fact,  as  already noticed  only additional charges were framed  against  them. The direction of the 5th Court regarding framing of  charges afresh has therefore to be read and construed with reference to those three who surrendered later. 22.  So far as those three accused are concerned, admittedly they  were  not there when the trial commenced in  the  10th Court  and,  therefore, the 5th Court was not  only  legally bound to frame charges against them, but also to record  the evidence  of the four witnesses already examined  afresh  if the  prosecution intended to use the same against them  for, save  is  exceptional cases as provided in Section  299  and other sections of the Code, all evidence has to be taken  in the  presence of the accused, or when personal  presence  is dispensed  with,  in the presence of his lawyer in  view  of Section  273  of the Code.  Those  three  accused  therefore might  have  legitimately  and  successfully  assailed   the reception  and, for that matter, reliance upon the  evidence of  those four witnesses against them.  However,  the  three appellants before us cannot be allowed to raise any  similar grievance  for  those  witnesses  were  examined  in   their presence  and  cross-examined at length by  the  lawyers  of their  choice  for days together.  Then  again,  as  already noticed,  after the additional charges were  framed  against them and others under sections 364/149 and 201/ 149 IPC  the prosecution  submitted  a prayer that they were  willing  to produce  those four witnesses who had earlier been  examined in the previous Court for further cross-examination but then the appellants did not avail of the opportunity and insisted upon their fresh examination which was allowed by the  trial Court  but, as noticed earlier set aside by the High  Court. Even if we accept the contention of Mr. Jethmalani that  the order  of the 5th Court directing fresh examination  of  the

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prosecution   witnesses  was  an  interlocutory  order   and therefore  the High Court could not have set aside the  same in  exercise of its revisional jurisdiction in view  of  the embargo  of  Section  397  (2)  of  the  Code  and  take  no cognizance of the order of the High Court in this regard, it would only mean that the four witnesses earlier examined  by the  prosecution were not examined afresh.  Still  then,  so far as the three appellants with whom only we are  concerned in this appeal, it does not alter the situation for  at  the risk  of  repetition  we reiterate  they  were  examined  in presence  of  the appellants and  they  were  cross-examined extensively and exhaustively and 240 therefore  no prejudice can be said to have been  caused  to them. 23.The  matter  can  be  viewed  from  another  angle  also. Section  216 of the Code empowers the Court to alter or  add to any charge at any time before the judgment is  pronounced and  provides that after such alteration or addition of  the charge the Court is required to read and explain the same to the accused in accordance with sub-section (2) thereof It is further  laid  down  under sub-section (3) that  if  in  the opinion of the Court the alteration or addition to a  charge is not likely to prejudice the accused in his defence or the prosecutor  in the conduct of the case the Court may in  its discretion  proceed  with  the trial  immediately  with  the altered  or added charge.  Sub-section (4) provides that  if the  alteration  or  addition is such  that  the  proceeding immediately  with  the  trial is  likely  to  prejudice  the accused or the prosecutor the Court may either direct a  new trial  or  adjourn  the  trial for such  period  as  may  be necessary.  Section 217 of the Code provides that whenever a charge  is  altered  or  added to by  the  Court  after  the commencement  of  the trial the prosecutor and  the  accused shall  be  allowed to recall or to summon and  examine  with reference to such alteration or addition any witness who has already  been  examined unless the Court for reasons  to  be recorded  in writing considers that the desire to recall  or reexamine such witness was only for the purposes of vexation or  delay  or defeating the ends of  justice.   Besides,  it permits  the prosecutor and the accused to call any  further witness  whom the Court may think it to be material.   On  a combined reading of the above two sections it is, therefore, evident  that after an alteration or addition of the  charge the  interest of the prosecution and the accused has  to  be safeguarded  by permitting them to further examine or  cross examine  the witness already examined, as the case  may  be, and   by  affording  them  an  opportunity  to  call   other witnesses.  It is undoubtedly true that discretion has  been given to the Court  to direct a new trial after addition  or alteration  of any charge, but it does not mean  that  every such  addition  or alteration in the charge which  has  been read  over  and  explained  to the  accused  would  lead  to inevitable inference that the Court has directed a new trial for  them.   It, therefore, follows that  unless  the  Court passes a specific order and directs a new trial it cannot be presumed  that  a new trial has commenced  only  because  an alteration or addition to a charge which has been read  over and  explained  to the accused has been  made.   Indeed  the order  dated April 30, 1987 shows that while  directing  the prosecution to examine the 4 witnesses afresh the 5th  Court adjourned  the  case for further trial and  did  not  direct fresh  trial.  This apart, any such direction given  by  the Court has to be judged on the touchstone of prejudice to the accused  or  the prosecution.  In the instant case,  as  has

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already  been  noticed  after the addition  of  charges  the prosecution  expressly  stated  that they did  not  want  to further examine the four witnesses already examined but they were willing to produce them if the accused so wanted.   The accused,  however,  did  not avail of  this  opportunity  in accordance  with Section 217 of the Code and, therefore,  it is too late in the day for them to raise a grievance on that score.   We  hasten to add that even if we  had  found  that there was any irregularity in the continuation of the  trial against  the  appellants after the additional  charges  were framed,  we would not have been justified in  setting  aside the im- 241 pugned  judgment  on that ground alone for there is  not  an iota  of material on record wherefrom it can be said that  a failure  of  justice  has occasioned  thereby.   To  put  it differently,  in our view in such a case Section 465 of  the Code would have squarely applied. 24.  In any view of the matter, therefore, we are unable  to accept  the  contention of Mr. Jatmalani  that  the  learned Courts below were not justified in relying upon the evidence of  four witnesses, namely, Mahendra Singh,  Sukhdeo  Singh, Nageshwar  Singh and Ramchandra Singh who were described  as P.C.  (previous  Court)  P.Ws. 1, 2, 3  and  4  respectively against  the appellant.  Before we part with our  discussion on this aspect of the matter it will be pertinent to mention that  the  trial Court did not take into  consideration  the evidence  of  the  above four witnesses  against  the  three accused who surrendered later and, then again, out of  those three while two were acquitted the other did not prefer  any special leave petition in this Court. 25.  Now  that we have answered the two threshold  questions raised  by Mr. Jethmalani we may proceed to set out the  two incidents   including  their  background  narrated  by   the prosecution during trial. 26.  There  are,  two  Bind Tolis known  as  North  Laxmipur Taufir  Bind  Toli and South Laxmipur Taufir  Bind  Toli  in Laxmipur  Taufir Diara and both are inhabited mainly by  the people  of  Bind community.  There  are  other  neighbouring villages in the Diara, known as Taufir, Taufir Karari  Tola, Taufir  Kajo  Mahto Tola, Taufir Inder  Mahto  Tola,  Taufir Inder  Tola  and  Tikarampur and the  inhabitants  of  these villages are mostly of Yadav community.  All these  villages are  situated within the Munger Muffasil Police Station.   A few years ago a new district known as Khagaria District  was carved out of the old Munger district and after  bifurcation village  Mathur  and village Chukti fell  within  the  newly created district of Khagaria and in the said villages mostly people  of Yadav community are residing.  Mouza  Bind  Diara Harin  Mar is situated within Jamalpur Anchal  under  Munger Muffasil  Police Station.  The land bearing plots  no.  297, 3/373, 473, 559, 474, 615, 618, 2/618, 2/619, 620, 622, 623, 624, 625, 626, 521, 2312, 2/618 and 619 of the said  village belong  to  Ratneshwar Singh and others of  village  Rajdhan within  Gogari Police Station in the district  of  Khagaria. The aforesaid plots of land, at times, remain submerged  for years  under water in the bed of river Gansa (  ’River’  for short).   When  the lands emerge out of  water,  and  become cultivable, people grow crops over the same. 27.  According  to the prosecution case, the said  plots  of land  came  out  of  the water in the  year  1984  and  were cultivated  by  accused  Dhamidhar  Yadav,  Sakaldeo  Yadav, Rajendra  Yadav, Ashok Yadav and other residents of  village Taufir Karari Tola against the wishes of the land owners and without  paying anything, either in cash or in kind  to  the

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land  owners.  Chandradeo singh (P.W. 5), son of  Tilakdhari Singh, resident of village Laxmipur Taufir Bind Toli decided to  take settlement of some out of the said plots  from  the land  owners on the basis of an agreement which  is  locally known  as  ’Manhonda’.   The parties  agreed  to  share  the produce  of the land and one of the terms of  the  agreement was that the settlee would pay wheat to the 242 landlord at the rate of 4 maunds per bigha. Accordingly  one agreement  (Ext.  1) was executed by Radha  Kant  Singh  and other  co-sharers in favour of Chandradeo Singh on  November 6,  1985 in respect of 14 bighas, 11 kothas and 12 dhurs  of land  while  another (Ext. 1/1)was  executed  by  Ratneshwar Singh and others on the same day for 11 bighas, 6 kathas and 7  dhurs.  Having thus got settlement from their  respective owners  Chandradeo  Singh  informed the  Yadavas  of  Taufir Karari Tola that he would grow crop over the said plots.  In spite  thereof the Yadavas of Karari Tola forcibly  ploughed the  plots on November 9, 1985 and sowed Raichi (a  kind  of oil-seed).  On the following day when Chandradeo Singh along with  his  brother Mahendra Singh (P.C. P.W. 1)  and  others went to cultivate those plots accused Dhamidhar Yadav, Ashok Yadav, Pramod Yadav, Sakaldeo Yadav and Wakil Yadav appeared there  and chased Chandradeo Singh and his  companions,  who ran away to save their lives.  At that time the Yadavas gave out  an open threat that the entire Bind Community would  be eliminated  if  further attempt was made  to  cultivate  the land.   Chandradeo Singh intended to give information  about this  incident at Munger Muffasil Police Station  but  could not  as  those Yadavas and their hench men had  blocked  the Bhelwa Bardhe Ghat as well as other Ghats, through which one could, after crossing the River, go to the Police Station. 28.  The  case  of  the  prosecution next  is  that  on  the following  morning  i.e.  on November 11,  1985  some  30/40 members  of  the Yadav community, who are all  residents  of village  Karari  Tola came to village Laxmipur  Taufir  Bind Toli  led  by accused Pramode  Yadav,  Sakaldeo  Yadav,Wakil Yadav, Dharnidhar Yadav and Subodh Yadav and started abusing the  Binds.  Seeing the mob Chandradeo Singh,  Bijay  Singh, Sadhu Singh and Raje Sao accosted them and requested not  to resort  to violence.  However, the Yadavs did not listen  to their  request  and some of them started firing  from  guns. The  shots  fired by accused Dharnidhar Yadav  struck  Bijay Singh and Raje Sao, both of whom fell down there.  Then  the miscreants went back holding out threat that all the members of  the  Bind  community, residing in  the  Diara  would  be killed.  Over this incident two reports were lodged with the police,  one by Bishnudeo Sao and another by  injured  Bijay Singh and, as already noticed, two cases were registered  on those informations. 29.According to the prosecution the threats meted out by the Yadavs in the morning was translated into action on the same day  at  or about 1 P.M. when a mob of about 600  Yadavs  of neighbour  villages armed with weapons like  guns,  pistols, bhalas  and  lathis came  some of them on  horse  back   and attacked  both the Bind Tolis of Laxmipur Taufir.   The  mob resorted to looting cash, cloth, grain, ornament and  cattle and then setting to fire the houses of the inhabitants there as  a result of which about 200 house were burnt  to  ashes. Thereafter  some  of  the  members of  the  mob  chased  the villagers, including Ram Swarup Singh, Arjun Singh, Ramabdul Singh,  Bahadur  Singh,  Suresh  Singh,  Shiban  Singh,  Lal Bahadur Singh Bhumi Singh, Ramprabesh Singh, Rambilash Singh and  Sadho  Singh who were trying to flee away  towards  the River.   When  the above named persons tried  to  escape  on

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boats, anchored in Tisrasia Dhab ( a vast expanse of  water) the mis- 243 creants fired at them, brought them down from the boats  and then dragged them to the River and threw them there.  It  is the  specific case of the prosecution that, besides  others, the  three  appellants herein had come on  horse  back  with guns,  led  the  mob and were  active  participants  in  the ravage.   As already mentioned over this incident  also  two cases  were registered on the reports of one Janki Bind  and other of Mahender Singh (P.C. P. W. 1). 30.  The  prosecution  case  further  is  that  on   getting information  that  some incident has taken place  in  Taufir Bind Toli a police posse went there the same night and  B.K. Singh   (P.W.96),   an   Inspector  of   Police,   took   up investigation  of  the two cases registered over  the  first incident under order of the Deputy Superintendent of Police, Munger.    On  the  following  morning  he  also   took   up investigation  of  the other two cases registered  over  the second  incident.  In conducting the investigation  he  took the  assistance  of, amongst others, two Sub  Inspectors  of Police,  namely,  Shyam Narain Prasad  (P.W.68)  and  Naresh Prasad  (P.W.99).  In  course of  the  investigation  P.W.96 inspected  the  places of occurrence and  got  sketch  plans prepared.   Besides under his direction P.W. 99 seized  some burnt household articles from the large number of huts which were  burnt  down by the miscreants.  He  requisitioned  the services   of  the  veterinary  surgeon  to   conduct   post examination  upon  carcass of the goats and the  cows  found dead.   He also went to the River to search for and  recover the  dead  bodies of the persons who were  allegedly  thrown there by the miscreants.  Ultimately the dead bodies of  six out  of  the  nine killed were  recovered  and  after  there inquests were held by P.W. 68 under his direction they  were sent  for postmortem examination.  During  investigation  he seized  the deed of agreement under which  Chandradeo  Singh claimed  to  have obtained the settlement of  the  plots  in question. 31.  While  pleading  not  guilty to  the  charges  levelled against  them, the three appellants asserted that they  were falsely  implicated  and each of them took up  the  plea  of alibi.  In support of its case the prosecution examined  105 witnesses.   Out of them 22, who were all residents of  vil- lage  Taufir Bind Toli claimed to have seen both  phases  of the  occurrence  whereas  47  others  of  the  same  village testified  about the second phase only.  The appellants,  in their turn, also examined some witnesses and exhibited  some documents in support of their defence. 32.  Mr.  Jethmalani took us through relevant parts  of  the voluminous evidence and the judgments of the learned  Courts below to persuade us to re-appraise the evidence and examine the   question   of  the  credibility  of   the   witnesses, particularly   those   who  testified  against   the   three appellants, and to hold that the evidence on record did  not justify  their  convictions.  Sitting  in  the  jurisdiction under  Article 136 of the Constitution of India we will  not be  justified  in re-opening the whole case  and  disturbing concurrent findings of fact recorded on a pure  appreciation of  evidence  unless we hold that those findings  have  been recorded  in utter disregard of mandatory provisions of  law resulting in serious prejudice and substantial injustice  to the  accused.  The other area  justifying  our  interference would  be where on the proved facts wrong inference  of  law has  been drawn or the conclusions on facts  are  manifestly perverse and based on no evi-

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244 dence.  We have nonetheless made a critical analysis of some of the evidence on record with a view to appreciate the  the criticism of Mr. Jethmalani. 33.  To  prove settlement of land in favour of P.W.5,  which according to the prosecution was the genesis of the trouble, it  examined Ratneshwar Singh (P.W.64),. Subodh Kumar  Singh (P.W.65),  Anand  Singh  (P.W.  82)  and  Akhileshwar  Singh (P.W.83)  who  are all residents of village Rajdhan  in  the district  of  Khagaria and claimed to be the owners  of  the land  in question and exhibited the two agreements  executed by  them on 6.1.1985 (Exhibit 1 and 1/1).  On discussion  of their  evidence along with that of P.W.5 and perusal of  the agreements  the trial Court concluded that  the  prosecution succeeded  in  proving that land measuring about  30  bighas situated  in Mouza Bind Diara Harin Mar was settled  by  the above land owners in favour of P.W.5. The High Court, in its turn, reappraised the evidence and concurred with the  above finding.   The High Court also observed that the,  story  of settlement of land was not seriously challenged on behalf of the  appellants.   Indeed, before us also no  grievance  was raised  regarding  the  above finding  of  fact.   The  next finding, recorded by the trial court on an appraisal of  the evidence  of  P.W.5 and others, is that  some.   Yadavas  of Taufir Karari Tola were forcibly cultivating the land  since it emerged from the River bed in 1984 and the Yadavas  drove P.W.5 and his companions away when, after taking  settlement of the land, they went to grow crops thereon on 10.11.85 and threatened them with dire consequences in case they dared to do  so.   This  finding also does not appear  to  have  been challenged  in the High Court and before us also it was  not challenged. 34.  It is in the above background that the two incidents of 11.   11.  85 have to be considered.  We  however  need  not detail  or  discuss  the  evidence  relating  to  the  first incident  as,  admittedly,  the three  appellants  were  not involved therein and, in fact, they were not arraigned in S. T.  No.  83  of  86. Suffice it to say,  that  on  a  proper appreciation  of  the  evidence laid in  respect  thereof  a concurrent finding has been recorded by the Courts below  to the  effect that the six Yadavs (who were facing  trial  for that incident) had come to the village Laxmipur Taufir  Bind Toli   armed  with  various  weapons   including   firearms, committed  rioting,  attempted to commit murder  of  two  by firing and causing injuries to them and then went away hold- ing out open threat to the villagers that the members of the Bind Community would be eliminated.  We may now,  therefore, confine  our attention to the evidence adduced during  trial relating  to the incident and the findings recorded  by  the trial Court and the High Court in respect thereof in general and as against the appellants in particular. 35. The incident that allegedly took place in the afternoon may be considered in two parts:    while the ravage in  both the Bind Tolis (North  and South) of Laxmipur may be as  the first  part, the murderous assault at the Tisrasia Dhab  and bank  of  the River the  second point.  To  give  an  ocular version of the earlier part the prosecution relied upon  the evidence of as many as 69 residents of the village including P.C.  P.Ws. 1 to 4. Each of them gave a detailed account  of the  vandalism perpetrated by the riotous mob in the  entire village and the looting and setting on fire of 245 their respective houses in particular.  On going through the impugned  judgments we find that the Courts  below  detailed and  discussed  their  evidence at  length  along  with  the

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evidence of Dr. Rana Pratap Singh (P.W.43) who had  examined some  of  them  and found injuries  Dr.  Amar  Prasad  Singh (P.W.50)  who held postmortem examination on the carcass  of the   burnt  cows  and  goats,  B.K.  Singh   (P.W.96)   the Investigating  Officer and Naresh Prasad (P.W.99)  the  Sub- Inspector   of   Police   who   assisted   P.W.96   in   the investigation.  On such analysis the Courts recorded a find- ing  that a riotous mob of about 500 to 600 persons came  to the  village,  some of whom were on horsebacks,  armed  with deadly  weapons including firearms and surrounded  it.   The other  finding  recorded  is  that  then  the  riotous   mob plundered  the village, assaulted some of die villagers  and set 460 huts on fire. 36.  For  narrating  and  proving  the  other  part  of   he incident, which according to the prosecution was the  finale to  the  ghastly episode, it relied upon  the  evidence  of, besides  others,  P.C.P.Ws. 1 to 4, Jhingur  Singh  (P.W.6), Moti Singh (P.W.8),Medni Singh (P.W. 14), Wakil Prasad Singh (P.W.  17),  Banarasi  Singh  (P.W.18),  Sarjug   Singh(P.W. 19)Moharil Singh (P.W.29) and Suresh Singh (P.W.46) as  they claimed  to  have  also  seen as to  what  had  happened  at Tisrasia Dhab and on the bank of the River.  Both the Courts below   recounted  their  evidence  and   after   exhaustive evaluation  thereof found the same consistent On  the  basis thereof  the Courts held that the prosecution had  succeeded in proving that when the mob was engaged in committing  loot and  arson  in  the  village  some  villagers  fled  towards Tisrasia   Dhab  and  they  were  chased  by  some  of   the miscreants.   Amongst  those  who  were  being  chased  were i)Ramswarup  Singh, ii) Lal Bahadur Singh,  iii)  Rampravesh Singh,  iv) Rambilas Singh, v) Sadho Singh, vi)Arjun  Singh, vii) Bhumi Singh, viii) Ramadul Singh, ix) Shiban Singh (all dead)  x) Sukhadeo Yadav (P.C.P.W. 2), xi)  Nageshwar  Singh (P.C.P.W.3),  xii) Moharil Singh (PW 29)  xiii)Suresh  Singh (PW  46).  All the members who were chasing were armed  with rifle,  Sun,  pistol, bhalla etc. and some of them  were  on horse back.  The next finding recorded by the Courts is that those  who  were chased boarded a country boat  in  Tisrasia Dhab  and  started rowing to go to the other side.   In  the meantime the rioters reached there, opened fire and captured the  boat.   While  three  of  the  occupants  of  the  boat P.C.P.W. 2, P.C.P.W. 3 and PW 29 escaped from their clutches by jumping into the River the other ten were apprehended and some of them were fired at, as a result of which Arjun Singh and  Bhumi  Singh  died at the spot.   Then  the  miscreants forcibly  took  them towards the bank of the  River.   There they  were  shot at and also assaulted with  other  weapons. Then  they were thrown in the River.  On the  following  day six dead bodies of six out of the nine killed were recovered from the river while P.W. 46 was found lying on its bank, in an unconscious state with injuries on his person. 37.In  assailing  the above findings  Mr.  Jethmalani  first contended that both the Courts below ought not to have taken into consideration and relied upon the evidence of  P.C.P.W. 1  as the same was clearly inadmissible. In  expanding   his argument Mr. Jethmalani submitted that while being  examined in  Court  the witness was permitted to refresh  his  memory from the 246 report  he  lodged  with  the  police  in  the  morning   of 12.11.1985  (Ext. 10/1), which was treated as the F.I.R.  of the second incident even though by no stretch of imagination could  that  report be so treated, as P.W.  96  had  started investigation  into  the  same  the  previous  night.   That necessarily meant that Ext.  10/1 was a statement made to  a

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police officer during investigation which could not be  read for  any purpose except for contradicting the maker  thereof in  view  of  Section  162  (1)  of  the  Code,  argued  Mr. Jethmalani.   In  support of his contention  Mr.  Jethmalani relied upon the judgment of the Privy Council in  Zahiruddin vs.   Emperor  A.I.R.  1947 P.C. 75.  It  appears  that  the question  as  to whether Ext. 10/1 could be  treated  as  an F.I.R.  was raised both before the Trial Court and the  High Court  and it was answered in the affirmative.   The  Courts held  that  in  the night of 11.11.1985,  P.W.  96  did  not examine  any  witness in connection with the  incident  that took  place in that afternoon and, in fact, he did not  take any  step towards the investigation as he and  other  police officers  were  busy  in maintaining law and  order  in  the village. 38.Having  gone  through  the evidence of  P.W.  96  we  are constrained to say that the Courts below were not  justified in treating Ext. 10/1 as an F.I.R. Undisputedly P.W. 96  had reached  the  village  Laxmipur Bind Toli in  the  night  of 11.11.1985 to investigate into the two cases registered over the  incident  that took place in the morning.   He  deposed that  after  reaching  the  village at  10.30  p.m.  he  got information about the second incident also and in connection therewith  he had talked to several persons.   He,  however, stated that he did not record the statements of the  persons to whom he talked to.  In cross examination it was  elicited from  him  that-on the very night he learnt that  houses  of some people had been looted and set on fire, some people had been  murdered  and that some  villagers  were  untraceable. While  being further cross examined he volunteered  that  he had  started the investigation of over the  case  registered over the second incident in the same night.  On the face  of such  admissions  of  P.W.  96  and  the  various  steps  of investigation he took in connection with the second incident there  cannot  be any escape from the  conclusion  that  the report  lodged by P.C.P.W.1 on the following  morning  could only  be treated as a statement recorded in accordance  with Section  161(3) of the Code and not as an F.I.R..  The  next question, therefore is whether the evidence of P.C.P.W. 1 is inadmissible as contended by Mr. Jethmalani. 39.In the case of Zahiruddin (supra) the police had got  the statement  of the principal witness which  was,  admittedly, recorded  during  investigation  signed  by  him.   Besides, during trial, while being examined-in-chief he refreshed his memory from that statement.  The trial ended in an acquittal with  a finding that when a Police Officer obtains a  signed statement from a witness in contravention of Section 162  of the  Criminal Procedure Code his evidence must be  rejected. In  appeal the High Court set aside the order  of  acquittal holding  that  breaches  of the provisions  of  Section  162 Criminal  Procedure Code were not in themselves  necessarily fatal  to the proceedings and might in  appropriate  circum- stances  be cured as the expression was under the  terms  of Section 537 of the Criminal Procedure Code 1898 (Section 465 of the Code).  In setting aside the order of the High  Court the Privy Council 247 observed as under:               "..........  The effect of a contravention  of               the Section 162(1) depends on the  prohibition               which   has   been   contravened.    If    the               contravention  consists  in the signing  of  a               statement made to the police and reduced  into               writing,  the  evidence  of  the  witness  who               signed it does not become inadmissible.  There

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             are   no  words  either  in  the  section   or               elsewhere  in  the statute  which  express  or               imply  such a consequence.  Still less can  it               be  said  that the statute has the  effect  of               vitiating the whole proceedings when  evidence               is  given by a witness who has signed  such  a               statement.  But the value of his evidence  may               be seriously impaired as a consequence of  the                             contravention   of  this  statutory   safeguar d               against  improper  practices.  The  use  by  a               witness  while  he  is giving  evidence  of  a               statement  made  by him to the  police  raises               different  considerations.   The   categorical               prohibition  of  such  use  would  be   merely               disregarded  if reliance were to be placed  on               the  evidence of a witness who had made  mate-               rial  use of the statement when he was  giving               evidence  at  the trial  "en,  therefore,  the               Magistrate or Presiding Judge discovers that a               witness  has  made  material  use  of  such  a               statement it is his duty under the section  to               disregard  the  evidence of  that  witness  as               inadmissible.  In the present case there is in               the note at the end of Mr. Roy’s  examination-               in-chief   and,   in  the  judgment   of   the               Magistrate  what amounts to a finding of  fact               that  Mr. Roy while giving his  evidence  made               substantial  and  material use of  the  signed               statement given by him to the police, and  the               Magistrate was accordingly bound to  disregard               his  evidence.   The Magistrate’s  reason  for               doing so is too broadly stated, for it is  not               the  mere  fact that Mr. Roy  had  signed  the               statement  but the fact that he had it  before               him  and consulted it in the witness box  that               renders his evidence incompetent.  "                                     (emphasis supplied) 40.  In  our considered view the above quoted passage is  of no  assistance to the appellants herein for in  the  instant case   after   P.C.P....  testified   about   the   incident prosecution got the statement of P.C. P. W. 1 exhibited Ext. 10/1   as  according to it Ext. 10/1 was the F.I.R.  Such  a course  was  legally  permissible  to  the  prosecution   to corroborate  the  witness  in view of  Section  157  of  the Evidence Act.  Of course in a given case  as in the  present one- the Court may on the basis of the subsequent  materials held that the statement so recorded could not be treated  as the F.I.R. and exclude the same from its consideration as  a piece of corroborate evidence in view of Section 162 of  the Code but then on that score alone the evidence of a  witness cannot  be held to be inadmissible.  The case of  Zahiruddin (supra) turned on its own facts, particularly the fact  that during  his examination-in-chief the witness was allowed  to refresh his memory from the statement recorded under Section 161  Criminal Procedure Code, unlike the present  one  where the statement was admitted in evidence after P.C. P.W.1  had testified about the facts from his own memory. 41.  Mr. Jethmalani next submitted that the prosecution case so  far as it related to the attack on villager-. when  they were trying to flee away on a boat at the Tisrasia Dhab  was absolutely untrue for. even though the prosecution witnesses claimed  that  after  capturing the boat  and  bringing  the occupants  down  the roiters fired at them as  a  result  of which  Arjun Singh and Bhumi Singh dropped down  dead  there

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and  their  dead  bodies  were  recovered  from  the  River. According  to  Mr.  Jethmalani,  if  the  evidence  of   the witnesses was to be believed those dead bodies would have 248 been found in Tisrasia Dhab itself and not in the River for, admittedly,  the  water of the former does not flow  to  the latter.  On perusal of the evidence on record including that of  P.W.96  we are unable to accept  the  above  contention. Culling  the evidence of the witnesses who spoke  about  the incident at Tisrasia Dhab and the bank of the River we  find that all the 10 persons who were brought down from the  boat including  those who were shot at were taken to the bank  of the  River, The above evidence again stands corroborated  by the evidence of P.W. 96, who spoke of having seen sign-,  of dragging  between the two places, namely, Tisrasia Dhab  and the  bank of the River as well as foot prints.  The find  of dead  bodies  of Arjun Singh and Bhumi Singh in  the  River, therefore,  does not contradict the case of the  prosecution that those two persons were shot at Tisrasia Dhab. 42.  The  next  argument  of Mr.  Jethmalani  was  that  the evidence  of  P.W. 46 was wholly unreliable and  the  Courts below  ought  not  to have placed reliance  upon  the  same. Since  this  argument of Mr. Jethmalani is  solely  directed against the acceptance of his evidence for conviction of the appellant  Ranbir  Yadav, we will consider  the  same  while dealing  with  the case of the appellants  separately.   Mr. Jethmalani’s  last  criticism against the  findings  of  the Courts  below as mentioned earlier was that the evidence  of the  eye witnesses who testified about the  second  incident was highly discrepant and untrustworthy, and, therefore,  it should not have been relied upon.  To ascertain whether  the contention  was  borne  put  by  record  we  have  carefully examined  the judgments of the Courts below in the light  of the  relevant  evidence and keeping in  view  the  following observations of this Court in Shivaji v State of Maharashtra A.I.R.  1973  S.C. 2622 as it applies in all fours  in  this case also:               "............  The scene of murder  is  rural,               the  witnesses to the case are rustics and  so               their   behavioural  pattern  and   perceptive               habits  have  to be judged as such.   The  too               sophisticated  approaches familiar  in  courts               based   on  unreal  assumptions  about   human               conduct  cannot obviously be applied to  those               given  to the lethargic ways of our  villages.               When  scanning  the evidence  of  the  various               witnesses  we  have to inform  ourselves  that               variances  on  the fringes,  discrepancies  in               details,  contradictions  in  narrations   and               embellishments  in in essential  parts  cannot               militate  against the veracity of the core  of               the testimony provided there is the impress of               truth  and  conformity to probability  in  the               substantial fabric of testimony delivered.  " 43.On such examination we find that the various  contentions raised  on  behalf  of  the  accused/appellants  have   been carefully  examined,  the evidence given by  the  respective witnesses has been correctly marshalled and assessed and the infirmities and contradictions in them closely  scrutinised. Since  the  concurrent findings earlier detailed  have  been arrived  at  on such exercise, we find no ground  or  justi- fication to disturb the same.  We may now, therefore, divert our attention to the case of the individual appellant. 44.In   assailing  the  conviction  of  Ranbir  Yadav,   the appellant in Criminal Appeal No. 34 of 1992.  Mr. Jethmalani

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pointed out that the only overt act that was ascribed to him was  that  he  had assaulted Suresh Singh  (P.W.46)  with  a stick,  twisted his neck and then threw him into  the  River and to prove this fact prosecution relied 249 solely  upon  his evidence.  He contended  that  the  Courts below  ought  not  to have accepted  his  evidence  firstly, because the prosecution itself had found him unreliable  and cross-examined  him  at length and,  secondly,  because  the story of assault as given out by him stood falsified by  the evidence of Dr. Akhtar Ahmad (P.W.63) who examined him.   In dealing  with the case of Sukhedeo Yadav, the  appellant  in Criminal  Appeal No. 35 of 1992, he contended  that  against him  the  only allegation was that he had  shot  down  Arjun Singh  but  the  evidence of P.W.  63  who  held  postmortem examination upon his dead body indicated that he had no  gun shot  injury upon his person.  As regards Pandav Yadav,  the appellant  in Criminal Appeal No. 36 of 1992, he urged  that the only part assigned to him was that he and two others had fired  at  and killed Bhumi Singh but the  medical  evidence disclosed that there was only one firearm injury.  According to  Mr.  Jethmalani to convict a person  under  Section  149 I.P.C. the prosecution has got to prove that he has  commit- ted an avert act in prosecution of the common object of  the unlawful  assembly.  Judged in that context,  he  submitted, the  conviction  of none of the three  appellants  could  be sustained in view of the highly discrepant and untrustworthy evidence  of  the witnesses who spoke about the  overt  acts committed  by  the  three appellants.  In  support  of  this contention he laid strong emphasis upon the judgment of this Court in Baladin v. state of UP.  A.I.R. 1956 S.C. 181.   In that case this Court held that it was well settled that mere presence in an assembly did not make a person a member of an unlawful  assembly  unless  it was shown that  he  had  done something or omitted to do something which would make him  a member of an unlawful assembly or unless the case fell under Section 142 I.P.C. It was further held that it was necessary for  the  prosecution  to  lead  evidence  pointing  to  the conclusion that the accused had done or been committing some overt  act  in  prosecution  of the  common  object  of  the unlawful assembly. 45.If the above quoted proposition of law had still operated in the field it might have been necessary for us to  closely scrutinised  the evidence of the eye witnesses so far as  it sought to prove the over act allegedly committed by each  of the appellants to ascertain whether the learned Courts below were  justified  in  accepting  the  same.   But  the  above interpretation  given  to  Section 141  and  149  I.P.C,  In Baladin’s  case (supra) was explained by a four Judge  Bench of this Court in Masalti v.   State of UP.  A.I.R. 1965 S.C. 202 as under:               "It  appears that in the case of  Baladin  (S)               AIR  1956 SC 181 the members of the family  of               the  appellants  and other  residents  of  the               village  had assembled together, some of  them               shared  the  common  object  of  the  unlawful               assembly,  while  others were  merely  passive                             witnesses.  Dealing with such an assembly, thi s               Court  observed that the presence of a  person               in  an  assembly of that kind would  not  nec-               essary  show  that  he  was  a  member  of  an               unlawful  assembly.   What has  to  be  proved               against a person who is alleged to be a member               of an unlawful assembly is that he was one  of

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             the  persons constituting the assembly and  he               entered  along  with  the  other  members   of               assembly the common object as defined by S. 14               1,  I.P.C. Section 142 provides that  however,               being aware of facts which render any assembly               an  unlawful, assembly, or continue in it,  is               said  to be a member of an unlawful  assembly.               In other words, an               250               assembly of five or more persons actuated  by,               and  entertaining  one or more of  the  common               objects  specified by the five clauses  of  S.               141,  is  an unlawful assembly.   The  crucial               question  to  determine  in  such  a  case  is               whether the assembly consisted of five or more               persons   and   whether   the   said   persons               entertained one or more of     the      common               objects as specified by S.     141.      While               determining this question, it  becomes   rele-               vant   to   consider  whether   the   assembly               consisted  of  some persons  who  were  merely               passive witnesses and had joined the  assembly               as   a  matter  of  idle   curiosity   without               intending  to entertain the common  object  of               the  assembly. It is in that context that  the               observations made by this Court in the case of               Baladin   (S)   AIR   1956   SC   181   assume               significance ; otherwise, in law, it would not               be correct to say that before a person is held               to  be  a member of an unlawful  assembly,  it               must  be  shown  that he  had  committed  some               illegal  overt act or had been guilty of  some               illegal  omission in pursuance of  the  common               object of the assembly, in fact.  S. 149 makes               it  clear that if an offence iv  committed  by               any   member  of  an  unlawful   assembly   in               prosecution  of  the  common  object  of  that               assembly,  or  such  as the  members  of  that               assembly knew to be likely to be committed  in               prosecution of that object, every person  who,               at the time of the committing of that offence,               is  a member of the same assembly, is  quality               of  that offence: an that emphatically  brings               out   the   principle  that   the   punishment               prescribed  by S. 149 is in a sense  vicarious               and does not always proceed on the basis  that               the  offence  has been actually  committed  by               every   member  of  the   unlawful   assembly.               Therefore,   we   are   satisfied   that   the               observations  made in the case of Baladin  (S)               AIR 1956 SC 181 must be read in the context of               the  special facts of that case and cannot  be               treated   as  laying  down   and   unqualified                             proposition   of  law  such  as   Mr.   Sawhne y               suggests."                                    (emphasis supplied) The  above quoted principle was reiterated by this Court  in Lalji  v.  State  of  UP.  A.I.R. 1989  S.C.  754  with  the following words:               "The  two essentials of the  Section  (Section               149  I.P.C.) are the commission of an  offence               by any member of an unlawful assembly and that               such  offence  must  have  been  committed  in               prosecution  of  the  common  object  of  that

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             assembly  or  must be such as the  members  of               that   assembly  knew  to  be  likely  to   be               committed.   Not every person  is  necessarily               guilty  but only those who sham in the  common               object.   The  common object of  the  assembly               must  be one of the five objects mentioned  in               S.  141 I.P.C. Common object of  the  unlawful               assembly  can be gathered from the  nature  of               the  assembly,  arms  used  by  them  and  the               behaviour  of the assembly at or before  scene               of  occurrence.   It  is an  inference  to  be               deduced  from the facts and  circumstances  of               each case.               Section 149 makes every member of an  unlawful               assembly  at  the time of  committing  of  the               offence  guilty  of that offence.   Thus  this               section   created  a  specific  and   distinct               offence.    In  other  words,  it  created   a               constructive  or  vicarious liability  of  the               members  of  the  unlawful  assembly  for  the               unlawful acts committed pursuant to the common               object  by any other member of that  assembly.               However,   the  vicarious  liability  of   the               members  of the unlawful assembly only to  the               acts  done in the pursuance of the  object  of               the unlawful assembly, or to such offences  as               the  members of the unlawful assembly knew  to               be like to be committed in prosecution of that               object.   Once  the  case of  a  person  falls               within  the  ingredients of  the  section  the               question  that  he did nothing  with  his  own               hands  would  be immaterial.   He  cannot  put               forward defence that he did not with his own               251               hands   commit   the  offence   committed   in               prosecution  of  the  common  object  of   the               unlawful  assembly or such as the  members  of               the   assembly  knew  to  the  likely  to   be               committed  in  Prosecution  of  that   object.               Everyone  must be taken to have  intended  the               probable   and   natural   results   of    the               combination  of the acts in which  he  joined.               It  is  not  necessary that  all  the  persons               forming  an  unlawful assembly  must  do  some                             overt act.  When the accused persons  assemble d               together, armed with lathis, and were  parties               to  the assault on the complainant party,  the               prosecution  is  not obliged  to  prove  which               specific  overt act was done by which  of  the               accused.   This section makes a member of  the               unlawful  assembly responsible as a  principal               for  the acts of each, and all merely  because               he is a member of an unlawful assembly.  While               over act and active participation may indicate               common  intention of the  person  perpetrating               the  crime, the mere presence in the  unlawful               assembly  may  fasten  victoriously   criminal               liability under S. 149.  It must be noted that               the  basis of the constructive guilt under  S.               149   is  mere  membership  of  the   unlawful               assembly, with the requisite common object  or               knowledge.  "                            (emphasis supplied) The Court thereafter considered the facts of the case before

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it  and observed that after having held that  the  appellant formed an unlawful assembly carrying dangerous weapons  with the common object of resorting to violence, it was not  open to  the  High  Court to acquit some of the  members  on  the ground  that  they did not perform any violent act  or  that there was no corroboration of their participation. 46.  In view of the above, interpretation given  to  Section 149  IPC  we need not delve into or  decide  the  contention raised  by  Mr. Jethmalani that the evidence  regarding  the specific overt acts ascribed to each of the three appellants herein is not reliable, for the Courts below considered  and accepted   conclusively prove that all the three  appellants shared the common object of the unlawful assembly to  commit the  offences  of  loot arson and  murder  and  causing  the disappearance  of  the  evidence  of  murder  and  that   in furtherance  of  those common objects some members  of  that unlawful  assembly  committed those offences for  which  the appellants  are also liable to the convicted  under  section 149  IPC.   Even if we leave aside the  evidence  of  Suresh Singh (P.W.46) who testified about the overt acts  committed by  all the three appellants, of P.C. P.W.2 who spoke  about the overt acts of appellants Pandav Yadav and Sukhdeo  Yadav and  of P.C. P.W.1 and P.W. 19 who deposed about  the  overt acts of Sukhdeo Yadav there are the testimonies of the other eye-witnesses, to whom reference has already been made,  and found   to   be  trustworthy,  who  identified   the   three appellants,  besides others, as having been members  of  the unlawful   assembly.   Having  sifted  their  evidence   and considered the same in the backdrop of the events proceeding the incident that took place in the afternoon of 11.11. 1985 we find that the following conclusions are inevitable: (1) a mob  of 500/600 people, most of whom belonged to Yadav  com- munity and were residents of different villages came to  and attacked the neighbouring village Laxmiour Taufin Bind  Toli to exterminate the Bind community :(ii) the three appellants who  belong  to Yadav community and are residents  of  three separate  adjoining villages came on horse back  armed  with fire  arms,  and led the mob along with  some,  others;  and (iii) the appellants were also amongst the riot- 252 ers  who chased the villagers and committed the  murders  at Tisrasia Dhad and the bank of the River. 47.In drawing the above conclusions we have taken note  of the  following passage from the judgment of this Court  in., Bajwa  & Ors. v. State of UP. (1973) 3 S.C.R. 571  to  which our attention was drawn by Mr. Jethmalani.               "The evidence through which we have been taken               by  the  learned counsel at the bar  has  been               examined  by us with care and anxiety  because               in  cases  like the present  where  there  arc               party   factions,   as   often   observed   in               authoritative decisions there is a tendency to               include the innocent within the guilty and  it               is extremely difficult for the Court to  guard               against   such  a  danger.   The   only   real               safeguard  against the risk or condemning  the               innocent with the guilty lies in insisting  on               acceptable  evidence  which  in  some  measure               implicates such accused and satisfies the con-               science of the Court. (See Kashmira Singh  vs.               State  of M.P. and Bhaban Sahu vs. The  King).               In the case in hand, Do doubt the  prosecution               witnesses claiming to have seen the occurrence               have named all the appellants and the approver               has  even  named those acquitted by  the  High

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             Court., but in our view it would be safe  only               to convict those who are stated to have  taken               active  part and about whose.  identity  there               can be no reasonable doubt" 48.For  the foregoing discussion the impugned  convictions and  sentences against the three appellants must be  upheld. Incidentally  we  may also mention that the  plea  of  alibi taken by each of the three appellants was found by both  the Courts  below,  on  proper  consideration  of  the  evidence adduced  in  support thereof, to  be  wholly  unsustainable, indeed Mr. Jethmalani did not challenge this finding. 49.In the result, the appeals are dismissed. CRL.  MP.  NO. 2423 AND CRL.  MP Nos. 2424-25194 50.Since   the  Criminal  appeals  stand   dismissed   these miscellaneous petitions filed in connection therewith  stand disposed of. 256