Lakshman Singh v. State of Bihar (now Jharkhand)
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 31.10.2018 passed by the High Court of
Jharkhand at Ranchi in Criminal Appeal Nos. 232/1999 and 242/1999,
by which the High Court has dismissed the said appeals preferred by the
appellants herein and has confirmed the judgment and order of conviction
and sentence passed by the learned trial Court convicting the appellants
for the offences under Sections 323 and 147 IPC and sentencing th em
to undergo six months simple imprisonment under both sections, original
accused nos. 9, 8, 12, 11, 10, 14, 2 and 13 – Lakshman Singh, Shiv
Kumar Singh, Upendra Singh, Vijay Singh, Sanjay Prasad Singh, Rajmani
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Singh, Ayodhya Prasad Singh and Ramadhar Singh have preferred the
present appeals.
2. As per the case of the prosecution, an FIR was lodged at Paatan
Police Station by the first informant – Rajeev Ranjan Tiwari on 26.11.1989
alleging inter alia that on the eve of general election, he was working as
a worker of Bhartiya Janta Party at village Golhana Boot h No. 132
under Paatan Police Station and was issuing slips to the voters towards
two hundred yards north away from the polling booth; at that time, a t
around 10:40 a.m., the accused persons who belong to another village
Naudiha came armed with lathis, sticks, country made pistols and asked
him to stop issuing voter slips and handover the voters list which he was
possessing and on his refusal the accused persons started p hysically
beating him (PW8 – Rajiv Ranjan Tiwari) with hands, fists, lathis and
sticks; the brother of the first informant-PW8, Priya Ra njan Tiwari
(PW10) upon knowing about the incident came to rescue him and at that
time accused Dinanath Singh @ Dina Singh fired gun shot at PW10
with his country made pistol, due to which he received pellet i njuries.
Accused Ajay Singh fired at Dinesh Tiwari (PW12), due to whi ch he
was injured. It was further alleged that due to scuffle, a ccused Hira
Singh snatched wrist watches of PW8 & PW10; the villagers rush ed
there and then all the accused persons ran away towards village Naudhia.
Based on the statement of PW8 – Rajiv Ranjan Tiwari, which was
recorded at 12:30 p.m. on 26.11.1989, an FIR was registered at ab out
2:00 p.m. on the very day, i.e., 26.11.1989 against 16 accused named
persons for the offences under Sections 147, 148, 149, 307, 326, 324,
323 IPC and Section 27 of the Arms Act. At this stage, it is required to
be noted that even some of the accused – Lakshman Singh, Shiv Kumar
Singh and Ayodhya Prasad Singh also sustained injuries. After conclusion
of the investigation, the investigating officer filed chargesheet against 15
accused including the appellants herein.
2.1 The learned trial Court framed the charge against the accused
persons for the offences under Sections 323, 307, 147, 149 and 379 IPC.
Accused Dinanath Singh and Ajay Singh were further charged under
Sections 148 IPC and accused Hira Singh was also charged under Section
379 IPC. As the case was exclusively triable by the Court of Sessions,
the case was committed to the learned Sessions Court , which was
numbered as Sessions Trial No. 36 of 1991.
2.2 To prove the case against the accused, the pros ecution
examined in all 15 witnesses including PW8, the first informant – Rajiv
LAKSHMAN SINGH v. STATE OF BIHAR (NOW JHARKHAND)
[M. R. SHAH, J.]
Ranjan Tiwari, Priya Ranjan Tiwari (PW10) the brother of the first
informant and PW5 – Dilip Kumar Tiwari, who all were injured eye
witnesses. The prosecution also examined Dr. Jawahar Lal (PW7), who
examined PW10, PW12 and PW5 on the very day at Sadar Hospital,
Daltonganj and who found injuries on the said persons. The prosecution
also examined the investigating officer – Shivnandan Mahto (P W13).
Prosecution also examined independent witnesses, i.e., PW1, PW3 &
PW4. After closure of the evidence on behalf of the p rosecution,
statements of the accused persons under Section 313 Cr. P.C. were
recorded. They denied to the allegations. The defence also exa mined
DW1 to prove the injuries on accused Ayodhya Prasad Singh, Ra ma
Singh, Shiv Kumar Singh and Lakshman Singh and brought on record
their injury reports.
2.3 Thereafter, on conclusion of the full-fledged trial and on
appreciation of the entire evidence on record and relyin g upon the
deposition of PW8, PW10 & PW5, who all were injured eyewitnesses
and other eyewitnesses, the learned trial Court convicted the appellants
herein for the offences under Sections 323 and 147 IPC and sentenced
them to undergo six months simple imprisonment for both the offences.
The learned trial Court also convicted accused Dinanath Singh for the
offences under Sections 326 & 148 IPC and sentenced him to undergo
seven years and two years RI respectively. The learned trial Court also
convicted accused Ajay Singh for the offences under Sections 3 24 &
148 IPC and sentenced him to undergo three years & two years RI
respectively.
2.4 Feeling aggrieved and dissatisfied with the judgment and order
of conviction and sentence, convicting and sentencing the appellants
herein, original accused nos. 9, 8, 12, 11, 10, 14, 2 preferred appeal along
with other accused being Criminal Appeal No.232 of 1999 and accused
no. 13 preferred appeal being Criminal Appeal No. 242 of 1999 before
the High Court. By the common impugned judgment and order, the High
Court has dismissed the said appeals and has confirmed the j udgment
and order of conviction and sentence passed by the learned trial Court.
2.5 Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court, original accused nos. 9, 8,
12, 11, 10, 14, 2 & 13 have preferred the present appeals.
3. Shri Manoj Swarup, learned Senior Advocate has appeared on
behalf of the appellants – accused and Shri Arunabh Chowdhury, learned
731
Additional Advocate General in Criminal Appeal No. 606/2021 and Shri
Tapesh Kumar Singh, learned Advocate in Criminal Appeal Nos. 630-
631/2021 have appeared for the State of Jharkhand.
3.1 Learned Senior Advocate appearing on behalf of the appellants
– accused has vehemently submitted that in the facts and circumstances
of the case both, the learned trial Court as well as the High Court have
committed a grave error in convicting the accused for the offences under
Sections 323, 147 IPC.
3.2 It is further submitted that both the courts below have materially
erred in relying upon the deposition of PW8, PW10 & PW5. It is submitted
that the aforesaid witnesses are unreliable and untr ustworthy. It is
submitted that they are not the independent witnesses. It is submitted
that as such PW12 – Dinesh Tiwary turned hostile. It is submitted that
the aforesaid witnesses belong to the same village.
3.3 It is further submitted that even both the courts below have
materially erred in coming to the conclusion that the appe llants were
part of the unlawful assembly and thereby have committed a grave error
in convicting the accused for the offence under Section 147 IPC.
3.4 It is further submitted that the motive has not been established
and proved. It is submitted that the common object was alleged to be to
cast bogus votes, which was never cast. It is submitte d that even the
voter slip was also available with all other parties and therefore the
motive as per the prosecution case is questionable.
3.5 It is further submitted that so far as the impugned judg ment
and order passed by the High Court is concerned, the individual role
and/or the merits of the case qua the respective appellan ts – accused
have not at all been considered by the High Court. It is submitted that
the High Court has only stated at page 26, para 23 qua the pr esent
appellants that so far as the rests of the appellants are conce rned, they
have been rightly held guilty under Sections 323 & 147 IPC. It is submitted
that there is no independent assessment of the evidence qua the appellants
herein.
3.6 It is further submitted that both the courts below have not
properly appreciated the fact that the presence of the accused at the
polling station was natural. It is submitted that because of the bye-election,
the accused persons along with the other persons belonging to different
political parties were present. It is submitted that it was natural for the
people belonging to different parties to call persons from different villages
LAKSHMAN SINGH v. STATE OF BIHAR (NOW JHARKHAND)
[M. R. SHAH, J.]
or otherwise to be present at booth and that itself would not be sufficient
to prove the guilt.
3.7 It is further submitted that even otherwise, the courts below
have materially erred in convicting the accused for the offe nce under
Section 323 IPC. It is submitted that so far as PW8 – i nformant is
concerned, there was no injury sustained by him. It is submitted that no
injury certificate of PW8 has been brought on record. It is submitted
that the prosecution has brought on record the injury certificates of three
persons only, namely, PW10 -Priya Ranjan Tiwari, PW12 – Dinesh Tiwari
and PW5 – Dilip Tiwari. It is submitted that all the injuries are by gunshot
except two simple injuries caused to Dinesh Tiwari – PW12. It is submitted
that PW12 turned hostile. It is submitted that the appellants are alleged
to have used lathis and sticks only against the first informant – PW8 as
per the prosecution case. It is submitted that therefore in the absence of
any corroborating evidence/material in support of the c ase of the
prosecution that the appellants have beaten PW8 and sustained injuries,
the courts below have materially erred in convicting the accused for the
offence under Section 323 IPC.
3.8 It is further submitted that even the conduct on the part of the
first informant – PW8 creates doubt about his credibility. It is submitted
that he has roped in several persons belonging to the opposite camp. It is
submitted that after the incident he went to the village a nd the police
SHO came to his house and taken him to the government hospital, Patan
and thereafter recorded his fardbyan (statement). It is su bmitted that
neither he went to his injured brother nor he has ever gone to see him at
the hospital nor any family member went to see the injured in the hospital.
It is submitted that in such circumstances, PW8 is not a re liable and
trustworthy witness and therefore the courts below ought not to ha ve
relied upon the deposition of PW8.
3.9 It is further submitted that even there is no recovery of lathis
and sticks. It is submitted that even the voting slips have also not been
recovered from the informant. It is submitted that non-exhibit of voter
slips demolishes the case of the prosecution. It is submi tted that FIR,
PW1 and informant and consistently all witnesses have stated that Rajiv
Ranjan Tiwari refused to give voter slips to the accused, u pon which
scuffle occurred. It is submitted that the voting slips are not exhibited. It
is submitted therefore uncorroborated testimony of asking voter slips is
not proved.
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3.10 Making the above submissions and relying upon the decisions
of this Court in the cases of Kutumbaka Krishna Mohan Rao v. Public
Prosecutor, High Court of A.P., reported in 1991 Supp. 2 SCC 509
and Inder Singh v. State of Rajasthan, reported in (2015) 2 SCC
734, it is prayed to allow the present appeals.
4. The present appeals are opposed by the learned co unsel
appearing on behalf of the State of Jharkhand.
4.1 It is submitted that as such there are concurrent findi ngs of
fact recorded by both, the learned trial Court as well as the High Court,
holding the appellants guilty for the offences under Sections 323 & 147
IPC.
4.2 It is submitted that in the present case the prosecut ion has
been successful in proving the case against the accused by e xamining
PW8, PW10 & PW5, who are the injured eyewitnesses. It is submitted
that the injured eyewitnesses – PW8, PW10 & PW5 are reli able and
trustworthy. It is submitted that all the aforesaid three witnesses were
thoroughly cross-examined and from cross-examination, nothing adverse
to the case of the prosecution has been brought on record by the accused.
It is submitted that even the prosecution examined thee other witnesses,
PW1, PW3 & PW4 who are independent witnesses, who supported the
case of the prosecution. It is submitted that as such the l earned trial
Court has discussed the entire evidence on record and analysed the
injury reports and thereafter by a detailed judgment has convi cted the
appellants for the offence of voluntarily causing hurt under Section 323
IPC and for the offence of rioting under Section 147 IPC. It is submitted
that all the appellants have been guilty for the offence of rioting punishable
under Section 147 IPC. It is submitted that for the offence of rioting,
there has to be,
i) an unlawful assembly of 5 or more persons as defined in
Section 141 IPC, i.e., an assembly of 5 or more persons
and such assembly was unlawful;
ii) the unlawful assembly must use force or violence. Force is
defined in Section 349 IPC; and
iii) the force or violence used by an unlawful assembly or by
any member thereof must be in prosecution of the common
object of such assembly in which case every member of
such assembly is guilty of the offence of rioting.
LAKSHMAN SINGH v. STATE OF BIHAR (NOW JHARKHAND)
[M. R. SHAH, J.]
It is submitted that in the present case, all the ingredients of rioting
as defined under Section 146 of the IPC has been established and proved.
4.3 It is submitted that as held by this Court in the case of Mahadev
Sharma v. State of Bihar, (1966) 1 SCR 18 = AIR 1966 SC 302 , ‘that
every member of the unlawful assembly is guilty of the offence of rioting
even though he may not have himself used force or violence’. I t is
submitted that as held by this Court, ‘offence of rioting under Section
146 IPC is said to be committed when the unlawful assembly or any
member thereof in prosecution of the common object of such assembly
uses force or violence’. It is submitted that therefore once the unlawful
assembly is established in prosecution of the common object, i.e., in the
present case, as held by the courts below, the common object was “to
snatch the voter list and to cast bogus voting”, each membe r of the
unlawful assembly is guilty for the offence of rioting. It is submitted that
the use of force, even though it be the slightest possible cha racter by
any one member of the assembly, once established as unlawful constitutes
rioting. It is submitted that it is not necessary that force or violence must
be by all but the liability accrues to all the members of the unlawful
assembly. It is submitted that some may encourage by words, others by
signs while others may actually cause hurt and yet all me mbers of the
unlawful assembly would be equally guilty of rioting. It is submitted that
in the present case both the courts below have found the appellants as
an active participant in the offence and they cannot be sa id to be the
wayfarers or spectators.
4.4 It is submitted that so far as the offence of voluntarily causing
hurt as defined under Section 321 IPC and punishable under Section 323
IPC is concerned, it is submitted that the injuries sustained by PW5 to
PW8 and PW12 are simple injuries while PW10 sustained grievo us
injuries. It is submitted that as such considering the nature of the injuries,
the appellants have been let off lightly by the courts below.
It is further submitted that as such the accused Lakshman Singh,
Shiv Kumar Singh and Ayodhya Prasad Singh sustained injuries which
establish beyond doubt their presence and participation. It is submitted
that in their statement under Section 313 Cr.P.C., they have not explained
their injuries at all.
4.5 It is further submitted that as PW5, PW8 & PW10 are injured
witnesses, as held by this Court in catena of decisions, evidence of an
injured eye witness has great evidentiary value and unless com pelling
735
reasons exist, their statements are not to be discar ded lightly. It is
submitted that very cogent and convincing grounds are required to discard
the evidence of the injured witness. Reliance is placed on the judgments
of this Court in the cases of State of MP v. Mansingh (2003) 10 SCC
414(para 9); Abdul Sayeed v. State of MP (2010) 10 S CC 259;
Ramvilas v. State of Madhya Pradesh, (2016) 16 SCC 316 (para
6); State of Uttar Pradesh v. Naresh, (2011) 4 SCC 324 (para 27) ;
and the recent decision in the case of Kalabhai Hamirbhai Kachh ot
v. State of Gujarat, (2021) SCC Online SC 347 (paras 20 & 21).
4.6 It is further submitted that in the present case, right from the
very beginning, all the accused were named in the FIR and their role and
complicity have been established with trustworthy, reliable and cogent
evidence. It is submitted that all the accused persons including the present
appellants formed the unlawful assembly in furtherance of the common
object “to snatch the voter list and to cast bogus voti ng” and actually
participated in the occurrence and committed the offences. It is submitted
that as such there is no ground to disbelieve the evidence of the injured
eye witnesses/eye witnesses.
4.7 It is further submitted that as such the learned trial Court took
a very lenient view in imposing the sentence of only six months simple
imprisonment. It is submitted that once the appellants were found to be
the members of the unlawful assembly with a common object and looking
to the injuries sustained by PW5, PW10 & PW12 who sustained injuries
by fired arm also, as such, all the appellants-accused ought to have been
convicted along with other accused for the offences under Sections 307,
326, 324 and 148 IPC also.
4.8 It is further submitted that bogus voting seriously undermines
the most basic feature of democracy and interferes with the conduct of
free and fair election which has been held by this Court in the case of
People’s Union for Civil Liberties v. Union of India, (20 13) 10 SCC
1, to include within its ambit the right of an elector to ca st his vote
without fear or duress. It is submitted that as held by thi s Court in the
aforesaid decision, free and fair election is a basic structure of the
Constitution and necessarily includes within its ambit the right of an elector
to cast his vote without fear of reprisal, duress or coercion. It is submitted
that therefore when the trial Court has shown leniency to the appellants
in sentencing them only for six months simple impri sonment, no
interference of this Court is called for.
LAKSHMAN SINGH v. STATE OF BIHAR (NOW JHARKHAND)
[M. R. SHAH, J.]
4.9. Making the above submissions and relying upon the aforesaid
decisions, it is prayed to dismiss the present appeals.
5. We have heard the learned counsel for the respective par ties
at length. We have meticulously scanned the entire evidence on record
and also the findings recorded by the learned trial Court, which are on
appreciation of the evidence on record. At the outset, it is required to be
noted that all the accused herein are convicted for the offe nces under
Section 323 and 147 IPC and are sentenced to undergo six months simple
imprisonment for both the offences and the sentences are directe d to
run concurrently.
It is true that in the impugned judgment the High Court has not at
all dealt with and/or considered the case on behalf of the accused/
appellants herein and has not discussed the evidence qua each accused,
which ought to have been done while deciding the first appeal against
the judgment and order of conviction. However, as for the reasons stated
hereinbelow and ultimately, we agree with the final conclus ion of the
High Court confirming the judgment and order passed by the lea rned
trial Court, instead of remanding the matter to the Hi gh Court, we
ourselves have re-appreciated the entire evidence on record.
5.1 In the present case, while convicting the accused, the learned
trial Court has heavily relied upon the deposition of PW1, P W3 and
PW4, who are the independent witnesses and PW5, PW8 & PW10,
who are the injured witnesses. The presence of the independent witnesses
and even the injured witnesses at the place of the incident is natural.
PW1, PW3 & PW4, all of whom were the residents of the village and
they came there to cast their votes and witnessed the incide nt. All the
witnesses, PW1, PW3 & PW4 have identified all the accused per sons
and supported the case of the prosecution fully. PW5, PW8, PW10 and
even PW12 are injured eyewitnesses. Injuries on PW5, PW10 & PW12
have been established and proved by the prosecution by examining Dr.
Jawahar Lal (PW7), who examined the above injured witnesses. Their
injury reports are placed on record by way of Exhibit 1, 1/1 and ½. All
the witnesses have unequivocally and in the same voice have stated that
at the relevant time when the voting was going on for the Lok S abha
constituency and at that time PW8 - Rajiv Ranjan Tiwari was giving
slips to the voters and at that time at about 10:40 a.m. all t he accused
persons belonging to another village came there and asked him to stop
giving slips and to handover the voter list and on refusal the accused
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persons assaulted him with fists, slaps and lathis and he sustained injuries.
Meanwhile, his brother Priya Ranjan Tiwari came for his rescue and at
that time one Dinanath Singh took out his country made pistol and fired
upon him causing several fire-armed injuries. All the ac cused persons
were named right from the very beginning of lodging the FIR and all the
accused persons were specifically named by all the witne sses and/or
fully supported the case of the prosecution. At this stage, it is required to
be noted that even some of the accused namely, – Lakshman Singh,
Shiv Kumar Singh and Ayodhya Prasad Singh sustained injuries a nd
they have failed to explain their injuries in their 313 statements. Thus,
their presence at the time and place of incident has been established and
proved even otherwise. At the cost of the repetition, it is observed that
PW5, PW8 and PW10 are the injured witnesses. Even after they have
been fully cross-examined, they have fully supported the case of the
prosecution, even after thorough cross-examination on behalf of the
accused.
6. In the case of Mansingh (supra), it is observed and held by
this Court that “the evidence of injured witnesses has greater evidentiary
value and unless compelling reasons exist, their statements are not to be
discarded lightly”. It is further observed in the said decision that “minor
discrepancies do not corrode the credibility of an otherwise acceptable
evidence”. It is further observed that “mere non-mention of the name of
an eyewitness does not render the prosecution version fragile”.
6.1 A similar view has been expressed by this Court in the
subsequent decision in the case of Abdul Sayeed (supra) . It was the
case of identification by witnesses in a crowd of assai lants. It is held
that “in cases where there are large number of assailant s, it can be
difficult for witnesses to identify each assailant and attri bute specific
role to him”. It is further observed that “when incident stood concluded
within few minutes, it is natural that exact version of incident revealing
every minute detail, i.e., meticulous exactitude of individual acts, cannot
be given by eyewitnesses”. It is further observed that “where witness to
occurrence was himself injured in the incident, testimony of such witness
is generally considered to be very reliable, as he is a witness that comes
with an inbuilt guarantee of his presence at the scene of cr ime and is
unlikely to spare his actual assailant(s) in order to fal sely implicate
someone”. It is further observed that “thus, deposition of injured witness
should be relied upon unless there are strong grounds for rejection of his
evidence on basis of major contradictions and discrepancies therein”.
LAKSHMAN SINGH v. STATE OF BIHAR (NOW JHARKHAND)
[M. R. SHAH, J.]
6.2 The aforesaid principle of law has been reiterated agai n by
this Court in the case of Ramvilas (supra) and it is held that “evidence
of injured witnesses is entitled to a great weight and ver y cogent and
convincing grounds are required to discard their evidence”. It is further
observed that “being injured witnesses, their presence a t the time and
place of occurrence cannot be doubted”.
7. Applying the law laid down by this Court in the aforesai d
decisions to the facts of the case on hand, we see no reason to doubt the
credibility and/or trustworthiness of PW1, PW3 & PW4 an d more
particularly PW5, PW8 & PW10, who are the injured witnesses. All the
witnesses are consistent in their statements and they have fully supported
the case of the prosecution. Under the circumstances, the courts below
have not committed any error in convicting the accused, rel ying upon
the depositions of PW1, PW3, PW4, PW5, PW8 & PW10.
8. Now so far as the submission on behalf of the appella nts –
accused that all the appellants were alleged to have armed w ith lathis
and so far as PW8 is concerned, no injury report is forthcoming and/or
brought on record and therefore they cannot be convicted for the offence
under Section 323 IPC is concerned, at the outset, it is re quired to be
noted that PW8 in his examination-in-chief/deposition has specifically
stated that after he sustained injuries, treatment was provided at
Government Hospital, Paatan. He has further stated in the cross-
examination on behalf of all the accused persons except accused Dinanath
Singh that he sustained 2-3 blows of truncheons. He has also stated that
he does not exactly remember that how many blows he suffered.
According to him, he first went to Police Station, Paatan along with the
SHO of Police Station, Paatan, where his statement was recor ded and
thereafter the SHO sent him to Paatan Hospital for treatment. Thus, he
was attacked by the accused persons by lathis/sticks and he sustained
injuries and was treated at Government Hospital, Paat an has been
established and proved. It may be that there might not be any serious
injuries and/or visible injuries, the hospital might not have issued the injury
report. However, production of an injury report for the offe nce under
Section 323 IPC is not a sine qua non for establishing the case for the
offence under Section 323 IPC. Section 323 IPC is a punishable section
for voluntarily causing hurt. “Hurt” is defined under Section 319 IPC.
As per Section 319 IPC, whoever causes bodily pain, disease or infirmity
to any person is said to cause “hurt”. Therefore, even caus ing bodily
pain can be said to be causing “hurt”. Therefore, in the facts and
739
circumstances of the case, no error has been committed by the courts
below for convicting the accused under Section 323 IPC.
9. Now so far as the conviction of the accused under Section 147
IPC is concerned, the presence of all the accused persons at the time of
incident and their active participation has been established and proved
by the prosecution by examining the aforesaid witnesses who a re the
independent witnesses and injured witnesses also. The accused persons
belong to another village. They formed an unlawful assembly in
prosecution of common object, i.e., “to snatch the voters list and to cast
bogus voting”. It has been established and proved that they use d the
force and, in the incident, PW5, PW8, PW10 & PW12 sustained injuries.
All the accused persons-appellants were having lathis. Section 147 IPC
is a punishable section for “rioting”. The offence of “rioting” is defined
in Section 146 IPC, which reads as under:
“146. Rioting – Whenever force or violence is used by an unlawful
assembly, or by any member thereof, in prosecution of the common
object of such assembly, every member of such assembly is guilty
of the offence of rioting.”
On a fair reading of the definition of “rioting” as per Section 146
IPC, for the offence of “rioting”, there has to be,
i) an unlawful assembly of 5 or more persons as defined in
Section 141 IPC, i.e., an assembly of 5 or more persons
and such assembly was unlawful;
ii) the unlawful assembly must use force or violence. Force is
defined in Section 349 IPC; and
iii) the force or violence used by an unlawful assembly or by
any member thereof must be in prosecution of the common
object of such assembly in which case every member of
such assembly is guilty of the offence of rioting.
9.1 “Force” is defined under Section 349 IPC. As per Section 349
IPC, “force” means “A person is said to use force to ano ther if he
causes motion, change of motion, or cessation of mo tion to that
other…….”
As observed hereinabove, all the accused persons wer e the
members of the unlawful assembly and the common intention was “to
snatch the voters slips and to cast bogus voting”. They use d force and
LAKSHMAN SINGH v. STATE OF BIHAR (NOW JHARKHAND)
[M. R. SHAH, J.]
violence also, as observed hereinabove. It is the case on behalf of the
accused that there is no specific role attributed to them for the offence
of rioting under Section 147 IPC. However, as observed here inabove
and as held by this Court in the case of Abdul Sayeed (supra), where
there are large number of assailants, it can be difficult for witnesses to
identify each assailant and attribute specific role to him. In the present
case, the incident too concluded within few minutes and therefore it is
natural that exact version of incident revealing every minute detail, i.e.,
meticulous exactitude of individual acts cannot be given by eyewitnesses.
Even otherwise, as held by this Court in the case of Mahadev Sharma
(supra), every member of the unlawful assembly is guilty of the offence
of rioting even though he may not have himself used force or violence.
In paragraph 7, it is observed and held as under:
“7. Section 146 then defines the offence of rioting. This offence
is said to be committed when the unlawful assembly or any member
thereof in prosecution of the common object of such assemb ly
uses force or violence. It may be noticed here that every member
of the unlawful assembly is guilty of the offence of rioting even
though he may not have himself used force or violence. There is
thus vicarious responsibility when force or violence is use d in
prosecution of the common object of the unlawful assembly.”
Thus, once the unlawful assembly is established in prosecution of
the common object, i.e., in the present case, “to snatch the voters list
and to cast bogus voting”, each member of the unlawful asse mbly is
guilty of the offence of rioting. The use of the force, even though it be
the slightest possible character by any one member of the a ssembly,
once established as unlawful constitutes rioting. It is not necessary that
force or violence must be by all but the liability accrues to all the members
of the unlawful assembly. As rightly submitted by the learned counsel
appearing on behalf of the State, some may encourage by words, others
by signs while others may actually cause hurt and yet all the members of
the unlawful assembly would be equally guilty of rioting. In the present
case, all the accused herein are found to be the members of the unlawful
assembly in prosecution of the common object, i.e., “to snatch the voters
list and to cast bogus voting” and PW5, PW8, PW10 & PW12 sustained
injuries caused by members of the unlawful assembly, the ap pellants-
accused are rightly convicted under Section 147 IPC for the offence of
rioting.
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10. In view of the above, we are of the firm view that the appellants
are rightly convicted under Sections 323 and 147 IPC and sentenced to
undergo six months simple imprisonment only for the said offences.
Before parting, we may observe that though in the present case it
has been established and proved that all the accused were the members
of the unlawful assembly in prosecution of the common object, namely,
“to snatch the voters list and to cast bogus voting” and have been convicted
for the offence under Section 147 IPC, the trial Court has imposed the
sentence of only six months simple imprisonment. In the case of People”s
Union for Civil Liberties (supra) , it is observed by this Court that
freedom of voting is a part of the freedom of expression. It is further
observed that secrecy of casting vote is necessary for st rengthening
democracy. It is further observed that in direct elections of Lok Sabha
or State Legislature, maintenance of secrecy is a must a nd is insisted
upon all over the world in democracies where direct elections are involved
to ensure that a voter casts his vote without any fear or being victimised
if his vote is disclosed. It is further observed that de mocracy and free
elections are a part of the basic structure of the Constit ution. It is also
further observed that the election is a mechanism which ultimately
represents the will of the people. The essence of the elect oral system
should be to ensure freedom of voters to exercise their free choice.
Therefore, any attempt of booth capturing and/or bogus voting should be
dealt with iron hands because it ultimately affects the rul e of law and
democracy. Nobody can be permitted to dilute the right to free and fair
election. However, as the State has not preferred any appeal against
imposing of only six months simple imprisonment, we rest the matter
there.
11. In view of the above and for the reasons stated hereinabove,
all the appeals fail and deserve to be dismissed and are accordingly
dismissed. Since, the applications for exemption from surrendering of
the accused- appellants herein were allowed by this Court vide orde rs
dated 15.03.2019 and 08.07.2019 respectively, the accused-appellants
are directed to surrender forthwith to serve out their sentence.
Devika Gujral Appeals dismissed.
LAKSHMAN SINGH v. STATE OF BIHAR (NOW JHARKHAND)
[M. R. SHAH, J.]