K. Jayachandra Reddy, J.
1. All these three appeals are filed against the judgment of High Court of Patna, wherein convictions of the thirteen accused under Sections 302/149, 436/149 and 435/149 I.P.C. and the sentences awarded thereunder are confirmed. The convictions of some of the accused under Section 302/34 I.P.C. and the sentence of life imprisonment are also confirmed. The convictions of some of the accused under Section 27 of the Arms Act and the sentences awarded by the trial court are also upheld.
2. Seven of them namely Ram Janam Pandey, Gopal Sharan Pandey, Sadhu Saran Pandey, Ram Ayodhya Pandey, Nar Narayan Pandey, Ram Gopal Pandey and Ram Deo Pandey have preferred Criminal Appeal Nos. 391-392 of 1989. The remaining six namely Lakshmi Narain Pandey, Kamla Pandey, Jairam Pandey, Bishram Pandey, Rajendra Pandey and Narsingh Pandey have preferred Criminal Appeal No. 522 of 1989. These 13 appellants along with 17 others were tried for the said offences by the First Additional Sessions Judge, Arrah. The trial court convicted all of them for the said offences. The High Court, however, as mentioned above, upheld the convictions and sentences of these 13 appellants and acquitted the rest. Hence these appeals.
3. The prosecution case is as follows:
The five deceased persons in this case were the residents of village Gorpa within the limits of Sahar Police Station in the District of Bhojpur. The material witnesses also belonged to the same village. The accused were of Bhumihar community and also belonged to the same village. In the year 1976 five persons of Bhumihar community of the village were killed by some naxalites. This enraged the Bhumihars and they suspected that the Harijans and other backward caste people of the village had hired the naxalites and killed the five persons and they wanted to wreck vengeance upon the Harijans and backward caste people of the village. The situation become so explosive that the authorities posted Armed Forces in the village to maintain peace and tranquility. But the Bhumihars of the village were on the look-out for an opportunity to teach a lesson to the Harijans and backward caste people. On 11.3.1977 at about 5 P.M. when the Armed Forces were removed from the village, some time in the day, on the eve of election, a large crowd consisting of all these accused and others armed with all sort of lethal weapons like guns, pistols, Bhala, Garasha and Kata etc. went on rampage, set fire to the houses and piles of straw belonging to the Harijans and backward caste people and killed and injured the persons whom they came across. In this incident five people were killed including two women and one person was injured having received gun shot injuries. 13 houses and 8 piles of straw belonging to the Harijans and backward caste people were brunt to ashes. This went on for several hours and the miscreants retired only when they saw a flash of light of some vehicle which they thought was the vehicle of the police. But in the fact the vehicle was of the canvassers who had come to pass by that way. On receiving information from them, the D.S.P.and Inspector of Police came to the village in the night and they helped people to extinguish the fire and also took into custody some Bhumihars and also recovered a large quantity of firearms and ammunitions from their possession. In the morning, the Incharge of the Sahar Police Station recorded the report from PW-5 at about 7 A.M. in which the names of 47 persons as perpetrators of the above crime were mentioned. One Ram Sahai Yadav (PW-4) was injured and he was referred to the Hospital, Arrah for examination of injuries. Blood-stained earth and other articles were seized along with the ashes of burnt houses and piles of straw and hones of the human bodies which were found burnt. Some empty cartridges which were seized were sent to the Experts. On completion of the investigation only 32 out of 47 persons named in the F.I.R. were charge-sheeted. Out of these 32, one died and one another jumped the bail and his trial was separated. In this way the 30 remaining accused were finally brought to trial. The prosecution examined 25 witnesses and out of them 13 persons were examined as eye-witnesses, namely, PWs 2 to 11, PW-13, PW-15 and PW-16. The accused pleaded not guilty. Three out of them pleaded alibi and 8 witnesses in support of the same were examined. The trial court examined the evidence of the defence witnesses in detail and rejected the same. The trial court, relying on the evidence of PWs 2, 5,6,8,10 and 15 convicted all the 30 accused. In the appeals before the High Court, the High Court confirmed the convictions of the 13 accused, who are before us and acquitted the rest. Identification of the accused as the members of an unlawful assembly was the principle question and the High Court felt that it would be safe to convict only such of these accused who have been identified by at least three eye-witnesses. Applying this test the High Court convicted these 13 appellants before us and acquitted the rest.
4. It may be mentioned at this stage that the time, the date of occurrence and the place of occurrence are not in dispute. The plea of the defence is that these accused persons did not participate in the occurrence. As already mentioned, a plea of alibi was set up by some of the accused during the trial. Few of the appellants also are among them. The trial court as well as the High Court have considered the defence evidence adduced in support of this plea of alibi in detail and have given cogent and convincing reasons for rejecting the said evidence. In view of these concurrent findings we do not propose to deal again with the evidence of these defence witnesses. Learned counsel appearing for the 13 appellants mainly argued on the question of identification. As already mentioned we are concerned only with the evidence of eye-witnesses namely P.Ws 2,5,6,8,10 and 15 and the High Court convicted these appellants holding that all of them were identified by at least three or more eye-witnesses.
5. Learned counsel submits that out of these six witnesses, the evidence of P.W. 5 is artificial and P.W. 6 has not identified Some of the appellants and that there are some inherent infirmities in the evidence of remaining eye-witnesses and therefore all the appellants are entitled for acquittal. Alternatively it is also submitted that if the evidence of these P.Ws is excluded then quite a good number of appellants cannot be held to have been identified by three witnesses as per the test applied by the High Court and in that view of the matter many of the appellants are also entitled for acquittal.
6. It is not in dispute that at least five persons namely Ful Kumari Devi, Tijia Devi, Dipan Yadav, Hiraman Kumhar and Kali Tanto were killed and the house of 13 persons including those of P.Ws 2 and 5 were burnt and piles of straw of atleast eight persons were also burnt. The occurrence took place at 5 P.M. when there was day-light. Therefore it would not have been difficult for the eye-witnesses to identify at least some of the assailants who were in the mob. Regarding the common object of the unlawful assembly, the same has to be inferred from the acts committed.
7. Learned counsel, however, submitted that there is no evidence that the accused persons attacked the five deceased persons and killed them except in the case of Ful Kumari Devi and even in her case, the intention to commit murder was not established and therefore the common object of the members of the unlawful assembly can not be to commit murder. It is well-settled that common object has to be inferred from various factors like the weapons with which the members were armed, their movements, the acts of violence committed by them and from the results thereof. In this case, the prosecution has objectively proved that the members of the unlawful assembly were armed with various kinds of deadly weapons; they indiscriminately set fire to various houses and also piles of straw. During the same occurrence five people were killed and burnt to death. In such a case it may not be possible for the prosecution to adduce evidence regarding the actual attack and the details thereof. Only burnt pieces could be sent to P.W. 24, Dr. D.N. Singh for post-mortem and the medical evidence establishes the homicidal death of some of the deceased persons. Further the evidence of P.W. 24 who conducted the post-mortem on the dead body of Kali Tanto shows . that there were gun-shot injuries. Likewise the evidence of P.W. 24, 2ho also conducted the post-mortem on the dead body of Dipan Yadav shows that there were incised wounds on the body causing injuries to vital organs. Likewise on the dead body of Hiraman Kumhar, there were number of lacerated wounds caused by fire-arms. In this case the motive also becomes important and the prosecution has established that the unlawful assembly consisting of Bhumihars wanted to retaliate and wreck vengeance because of the earlier incident during which five Bhumihars were alleged to have been killed at the instance of the members belonging to the prosecution party. All these circumstances establish beyond all doubt that the common object of the unlawful assembly was to commit arson and murder.
8. With this background now we shall examine the evidence of these six eye-witnesses. ; First we shall consider the evidence of P.W. 5, Kailash Rai. He deposed that on 11.3.77 he was cutting fodder at his door and he saw in the north some commotion. He proceeded ahead and saw 40-50 persons assembled forming unlawful assembly. Then he gave the names of about 47 persons armed with various weapons. Seeing them he wanted to run away but from northern side they surrounded him and Kamla Pandey fired on him with a rifle but he escaped being hurt. Finding a door of a house at that very place being open, he entered into the room and bolted it from inside. Then the accused persons surrounded the house on all sides and that at the instigation of Dharam Pandey they set the house on fire. Finding a lemon tree in the court-yard he climbed the tree and managed to get on the roof and concealed himself there. He saw the accused persons surrounding the house from north, east and west sides and then after some time he saw some vehicle coming from the direction of the canal and accused persons seeing the same moved away. Coming out of the place of hiding he jumped into the canal and then ran away to Bhikampur Tola and told the people there about the occurrence. Coming to know that the police have already been informed, he returned to the village. He saw that his house as well as a number of other houses were burnt and he also saw the dead bodies and before the police he gave a. report which is stated as F.I.R.
9. The main criticism against this witness is that it would have been impossible for him to remember all the 47 names and he has given a prepared report after consultations or at the instance of the police and that he is merely repeating all the names mentioned in the report. The further submission is that P.W. 15, his brother and P.W. 23 the police officer did not speak about the presence of lemon tree and that itself shows that he was not present at the scene of occurrence.
10. The presence of P.W. 5 in the village cannot be doubted. No doubt when he mentioned 47 names, it is rather difficult to accept his evidence and place reliance on the same. But in this case the conviction of the appellants is not based solely on his evidence. We are unable to agree with the learned counsel that his evidence in entirety should be discarded. The discrepancies pointed out are not very material. His evidence to the extent corroborated by two or more other eye-witnesses is only acted upon by the court.
11. P.W. 2, Kapil Yadav is another eye-witness and he identified only some of the accused persons. He deposed that his wife Ful Kumari was surrounded by the accused persons and among them Gopal Sharan Pandey killed her wife firing at her with the rifle. He saw this incident through the window. He further deposed that Gopal Sharan Pandey, Ram Gopal Pandey and Sadhu Sharan Pandey put the dead body of her wife on wood and Ram Gopal Pandey then sprinkled kerosene oil on her body and thereafter Sadhu Sharan Pandey and Gopal Sharan Pandey lit the lire. This witness has fairly admitted that he did not saw the occurrence which could not have identified the accused from a distance of 100-150 yards. It must be noted that the accused are not strangers and there would have been no difficulty for this witness to identify some of the accused persons in the unlawful assembly. The next criticism against the evidence of this witness is that there is no other independent evidence that there was such a window in his house from where he could have witnessed the occurrence. This is only a minor aspect and there is no reason to disbelieve this witness when he says that there was a window in his house.
12. P.W. 6, Ramdhari Singh deposed that he was mixing earth for his house along with his son Kapil Deo and his wile Fulbasia Kumari. He saw smoke coming out from the western side and also heard the sound of firing. He saw among them eight persons and have identified them and they arc some of the appellants before us. He deposed that the group reached his house and Gopal Pandey killed her daughter-in-law by firing on her and he saw this occurrence through the window. He further deposed that the accused persons lifted the body of his daughter-in-law and put the same on a heap of wood and then set . on fire. This witness corroborates the evidence of P.W. 2. The only discrepancy pointed out is that he has not clearly mentioned the name of Narnarain. We find that in the judgment of both the courts below, it is clearly noted that P.W. 6 mentioned the name of Narnarain also. If there was any such discrepancy, it should have been brought to the notice of High Court at least during the appeal. In any event he has been identified by P.Ws 5,10 and 15 also. Therefore the test of three witnesses is satisfied.
13. P.W. 8, Rampurti Singh Yadav is another eye-witness. He deposed that he was at his house on 11.3.77. He heard the commotion and he identified some of the accused persons. He deposed that he saw the occurrence through the fissure in the door after hiding himself inside the house. It is submitted that there is no corroboration as the nature of fissure and whether through that he could have seen. We see no force in this submission.
14. P.W. 10 Dharichhan Tanto deposed that he saw a crowd when he was at his house and he identified some of the accused. He further deposed that some of the accused persons whose names he mentioned, chased Kali Tanto and he was shot at. He admitted that he did not give a statement before the police. Then we are left with the evidence of P.W. 15 . Ram Naresh Ram. He deposed that he was at house and saw a mob coming from the side of the canal. He identified some of the accused. He is brother of P.W.S. He further deposed that seeing the mob he moved inside his house. He also deposed that nobody tried to assault him and that his house is in the eastern side of lane and stated that there is no lemon tree. Taking advantage of this admission regarding lemon tree the learned counsel. submitted that the evidence of this witness to that exte(sic) contrary to that of P.W. 5. This is a very minor thing and at any rate it is not clear whether P.W. 15 was having in mind the same lemon tree referred to by P.W. 5.
15. After carefully going through the evidence of these witnesses, we find that their presence at the scene of occurrence cannot be doubted. P.Ws 2,6,8,10 and 15 have identified only some of the accused persons. P.W. 5, however, has mentioned a number of accused persons. As already mentioned the test that is applied by the High Court is that only such of those accused who were identified by three or more witnesses can safely be held to be present as members of the unlawful assembly. Both the courts below have examined the evidence of these witnesses in great detail and for identification the courts below have applied a safe test. The view taken by the High Court is quite sound. As held by both the courts below, these appellants are identified by atleast three or more eye-witnesses. Some of the discrepancies pointed out by the learned counsel do not affect the veracity of these witnesses.
16. In the result there are no merits in these appeals and the same are accordingly dismissed.