Supreme Court of India
ANAND MOHANversusSTATE OF BIHAR
- Citation
- 2012 INSC 277
- Decided
- 10 July 2012
- Disposal
- Dismissed
- Bench
- A K PATNAIK
Holding
The Supreme Court affirmed the High Court’s acquittal of A‑2 to A‑7, upheld A‑1’s conviction under section 302/109, and confirmed the substitution of the death sentence with rigorous imprisonment for life.
Summary
The case concerned the murder of a District Magistrate during a funeral procession of a political leader, where 36 persons were charged. The trial court convicted A‑1 (Anand Mohan) and six others under sections 147, 302/149, 307/149 and 302/109, sentencing A‑1, A‑3 and A‑4 to death. The High Court acquitted A‑2 to A‑7 of all charges, held that there was no unlawful assembly with a common object to kill, and convicted only A‑1 for abetment under section 302/109, commuting his death sentence to life imprisonment. On appeal, the Supreme Court examined whether the wireless message could be treated as the FIR, whether the FIR was ante‑dated, whether an unlawful assembly existed, and whether the evidence of exhortation was sufficient to sustain convictions. It held that the typed report was the proper FIR, that the prosecution failed to prove an unlawful assembly, that only A‑1’s exhortation was proved beyond reasonable doubt, and that death was not warranted, confirming life imprisonment. All appeals were dismissed.
Issues considered
- The wireless message sent immediately after the incident can be treated as the FIR or not.
- Whether the FIR was ante‑dated/ante‑timed and the effect of such suspicion on the prosecution case.
- Whether the facts established an unlawful assembly with the common object of murdering the District Magistrate.
- Whether A‑1 alone can be held to have exhorted the shooter and be convicted under section 302/109.
- Whether A‑2, A‑3 and A‑4 can be convicted for abetment of murder under section 302/109.
- Whether the death sentence imposed on A‑1 should be upheld or commuted to life imprisonment.
Legislation cited
- Code of Criminal Procedure, 1973s. 154, s. 313
- Constitution of Indias. 136
- Indian Evidence Act, 1872s. 103
- Indian Penal Code, 1860s. 109, s. 1149, s. 147, s. 149, s. 302, s. 307
Subjects
murderabetmentunlawful assemblyFIRexhortation evidencedeath penaltylife imprisonmentcriminal appealsection 302/109section 147section 149section 307section 313 CrPCsection 103 Evidence Act
Judgment
[2012] 10 S.C.R. 1
ANAND MOHAN A
v.
STATE OF BIHAR
(Criminal Appeal Nos. 1804-1805 of 2009 etc.)
JULY 10, 2012
B
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.]
Penal Code, 1860 - ss. 147, 3021149, 3071149 and 3021
109 - Prosecution of 36 accused - Murder of District
Magistrate - In funeral procession of political leader who was C
murdered by unknown criminals - By brother of the deceased
leader, at the instigation of the accused - FIR by Police Officer
- Ten of the fourteen witnesses near the place of occurrence
deptJsing that only A-1 exhorted the shooter and not A-2, A-
3 anct A-4 - Trial court convicting A-1 to A-7 of all the charges o
-A-'1, A-3 and A-4 sentenced to death and A-2, A-5, A-6 and
A- 7 sentenced to life imprisonment - Rest of the accused
acql!1tted - High Court acquitting all the accused u/ss. 147
and 3(}21149, acquitting A-2, A-3 and A-4 u/s. 3021109, and
convicting A-1 uls. 3021109 - A-1 sentenced to life E
imprisonment - Appeal by A-1 against conviction and by the
State against acquittal order and against the order reducing
sentence of A-1 - Held: Prosecution case against A-1
supporteo by prosecution witness - High Court rightly
acquitted A-1 to A-7 uls. 3021149 rejecting the prosecution F
case that there was unlawful assembly with the object of killing
the deceased - The majority of the prosecution witnesses did
not support the prosecution case that A-2, A-3 and A-4
exhorted the shooter while supported the case that A-1
exhorted the shooter - A-1 also not able to prove that he was
not at the place of occurrence, the burden to prove which was G
on him - He did not take such plea uls. 313 Cr.P.C. -
Therefore, A-2 to A-4 rightly acquitted uls. 3021109 and A-1
rightly convicted thereunder - As the District Magistrate was
1 H
2 SUPREME COURT REPORTS [2012] 10 S.C.R.
A killed as an occupant of a car by chance, on account of mob
fury and since the accused was not the assailant himself, RI
for life is appropriate - Code of Criminal Procedure, 1973 -
s. 313 - Evidence Act, 1872 - s. 103.
Evidence - Evidence of exhortation, is a weak piece of
8
evidence - Therefore, unless the evidence in this regard is
clear, cogent and reliable, no conviction for abetment can be
recorded - Penal Code, 1860 - s. 109.
36 accused including the appellants-accused No. 1,
C were prosecuted u/ss. 147, 3021149, 307/149, 302/109. The
prosecution case was that 'C' a political leader was
murdered by certain unknown criminals. His funeral
procession was led by A-1 (an MLA), A-2 (an M.P), A-3 and
few others in their respective vehicles. A-1, A-2 and A-3
D had given speeches instigating the crowd to take revenge
of the murder and teach the administration a lesson.
When the procession moved further, the shouts 'Maro
Maro' were heard from the midst of the procession. When
the informant (a police official on duty) reached there,
E found that car of the District Magistrate of some other
district had turned turtle and the District Magistrate was
lying on the ground. A-1, A-2, A-3 and some others were
there provoking 'B' the brother of 'C' to kill the Magistrate
and take revenge. 'B' fired at the Magistrate and fled
F away. The Magistrate succumbed to the injuries, in the
Hospital. In the meantime 15 persons, including A-1 and
A-2 were arrested. The informant had sent information
about the incident through wireless, soon after the
incident. The informant later sent a typed report about the
G incident which was lodged as FIR.
Trial Court convicted A-1 to A-7 u/ss. 147, 302/149,
307/149 and 327/149 IPC; further convicted A-1, A-2, A-3
and A-4 u/s. 302/109 IPC, and rest of the accused were
acquitted of all the charges. A-1, A-3 and A-4 were
H
ANAND MOHAN v. STATE OF BIHAR 3
sentenced to death. A-2, A-5, A-6 and A-7 were sentenced A
to life imprisonment.
High Court held that the prosecution was not able to
establish a case of unlawful assembly with common
object of causing death of the deceased, hence none of
8
the accused is liable to be convicted u/ss. 147 and 302/
149; that A-1 alone was responsible for exhorting the lone
shooter to kill the deceased and hence, he alone was
guilty of the offence u/s. 302/109 IPC. However, the court
sentenced A-1 to R1 for life. Hence the present appeals
by A-1 against his conviction, and by the State against C
the acquittal of A-2 to A-7 and against conversion of death
sentence of A-1 to life imprisonment.
The appellant-accused interalia contended that the
information sent through wireless disclosed the first D
account of occurrence and therefore should have been
treated as the FIR and not the typed report of the
information which was sent later; that High Court having
held that FIR was doubtful, should have disbelieved the
entire prosecution case; that as per the medical evidence E
the deceased was shot in a standing position belies the
evidence of prosecution witnesses who stated that the
deceased was shot when he was lying injured on the
ground; and that High Court did not take into
consideration the evidence of PW17 and PW21 the driver F
and the bodyguard of the deceased, who did not support
the prosecution case.
Dismissing the appeals, the Court
HELD: 1.1 It is clear from the language of sub-section G
(1) of Section 154 Cr.P.C. that every information relating
to the commission of a cognizable offence whether given
in writing or reduced to writing shall be signed by the
person giving it. Hence, the person who gives the
information and who has to sign the information has to H
4 SUPREME COURT REPORTS [2012) 10 S.C.R.
A choose which particular information relating to the
commission of a cognizable offence is to be treated as
an FIR. In the present case, PW-14, the informant has
chosen not to treat the wireless message but the
subsequent typed information as the PIR and the police
s has also not treated the wireless message but the
subsequent typed information as the FIR. Moreover, the
wireless message sent soon after the incident was
cryptic and did not sufficiently disclose the nature of the
offence committed much less the identity of the persons
c who committed the offence. Unless and until more
information was collected on how exactly the deceased
was killed, it was not mandatory for either PW-14 to lodge
the same as FIR or for the Officer lncharge of a Police
Station to treat the same as an FIR. The trial court and
the High Court have rightly treated the subsequent typed
0
written information lodged by PW-14 and not the wireless
message as the FIR. [Para 28] [26-E-H; 27-A-B, F]
Sheikh lshaque and Ors. v. State of Bihar (1995) 3 SCC
392: 1995 (2)SCR 692; Binay Kumar Singh and Ors. v.
E State of Bihar (1997) 1 SCC 283: 1996 (8)) Suppl. SCR 225
- relied on.
1.2. On the basis of all the evidence on record, the
High Court did not accapt the version of the prosecution
F that the FIR was lodged at 10.10 p.m. on 05.12.1994 and
has instead rightly held that the evidence creates a
reasonable suspicion about the FIR being ante-dated and
ante-timed. [Para 29] [28-F-G]
1.3. If the date and time of the FIR is suspicious, the
G prosecution version is not rendered vulnerable but the
court is required to make a careful analysis of the
evidence in support of the prosecution case. In the
present case, soon after the incident, information was
sent from the place of the incident to the District
H
ANAND MOHAN v. STATE OF BIHAR 5
Headquarters that the people mixed with the funeral A
procession have injured the deceased by a revolver and
fled towards Hajipur by different vehicles. At least this part
of the prosecution case which finds place in the
subsequent typed FIR lodged by PW-14 cannot be
discarded as false. [Paras 30 and 31] [29-F-G, H; 30-A-B] B
State of M.P. v. Mansingh and Ors. (2003) 10 SCC 414:
2003 (2) Suppl. SCR 460 - relied on.
Ganesh Bhavan Patel v. State of Maharashtra (1978) 4
SCC 371; Marudanal Augusti v. State of Kera/a (1980) 4 C
SCC 425; Awadesh v. State of M.P. AIR 1988 SC 1158:
1988 (3) SCR 513 - referred to.
Erram Santosh Reddy and Ors. v. State of Andhra
Pradesh (1991) 3SCC 206; Amar Singh v. Ba/winder Singh D
and Ors. (2003) 2 SCC 518: 2003 (1) SCR 754; Bhaga/oo
Lodh and Anr. v. State of ;Uttar Pradesh (2011 ) 13 SCC
106: 2011 (6) SCR 1037;. Om Prakash v. State of Haryana
(2006) 2 sec 250: 2006 (1) SCR 423 - cited.
2. The High courr rightly rejected the contention of E
the prosecution that·A-1 to A-7 were liable for conviction
u/s. 302/149 IPC. The High Court also has not accepted
the entire version of the FIR lodged by PW-14 and has
rejected the case of the prosecution in the FIR that there
was an unlawful assembly and that A-1 to A-7 were part F
of that unlawful assembly with the object of killing the
deceased. From the evidence on record and the
circumstances it is not established that even the
members of such mob shared the common object of
killing the deceased. The High Court has also held that G
there were no anegations that the processionists were
carrying any arms and there was insufficient evidence
about the exact behaviour of the assembly at the scene
of occurrence. The High Court has further held that the
statements of the driver and the bodyguard of the H
6 SUPREME COURT REPORTS [2012] 10 S.C.R.
A deceased show that the attack on the car of the deceased
and its occupants was a sudden act of the mob which
had gathered to watch the funeral procession. The High
C9urt has thus held that the processionists, who were
going with the dead body on motor vehicle, did not have
B any common object and therefore did not constitute an
unlawful assembly and hence A-1 to A-7 could not be
held liable for the offence under Section 302/149 IPC on
the ground that they were members of an unlawful
assembly which had the object of killing the deceased
C or any other person. [Para 32) [30-C-H; 31-8-D]
3. Evidence of exhortation is, in the very nature of
things, a weak piece of evidence and there is often quite a
tendency to implicate some person in addition to the actual
assailant by attributing to that person an exhortation to the
D assailant to assault the victim and unless the evidence in
this respect is clear, cogent and reliable, no conviction for
abetment can be recorded against the person alleged to
have exhorted the actual assailant. Since the majority out
of the fourteen prosecution witnesses comprising both
E civilian and police personnel accompanying the
procession do not support the prosecution version that A-
2, A-3 and A-4 also exhorted the shooter to shoot at the
deceased, it will not be safe to convict A-2, A-3 and A-4 for
the offence of abetment of the murder of the deceased.
F Therefore, the High Court was right in acquitting A-2, A-3
and A-4 of the charge under Section 302/109 IPC. [Para 34)
[32-F-H; 33-A]
Jainu/ Haque v. State of Bihar AIR 1974 SC 45 - relied
G on.
4.1. Where a criminal court has to cieal with the
evidence pertaining to the commission of offence
involving large number of offenders and large number of
victims, it is usual to adopt a test that the conviction could
H be sustained only if it is supported by two or three or
ANAND MOHAN v. STATE OF BIHAR 7
be sustained only if it is supported by two or three or A
more witnesses who give ·a consistent account of the
incident. In the present case, ten out of the fourteen
witnesses who were accompanying the procession and
were near the place of occurrence have given a
consistent version that A-1 exhorted the shooter to shoot B
at the deceased. PW-1, PW-3, PW-4, PW-6, PW-7, PW-8,
PW-9, PW-10, PW-11 and PW-1_4, have consistently
deposed that A-1 exhorted to shoot at the deceased. The
remaining four witnesses may be at the place of
occurrence but for some reason or the other may not
have heard the exhortation by A-1 to shoot at the
c
deceased. Hence, just because four of the fourteen
witnesses have not deposed regarding the fact of
exhortation by A-1, it cannot be held that the ten
witnesses have falsely deposed that A-1 had exhorted to
D
shoot at the deceased. [Para 35] [33-B-E]
Masa/ti v. State of UP. 1964 (8) SCR 133 - relied on.
4.2. It cannot be held that the medical evidence is
such as to entirely rule out the truth of the evidence of
the prosecution witnesses that the deceased was shot E
when he was lying injured on the ground. The evidence
of the ten witnesses who have deposed that the
deceased was shot when he was lying injured on the
ground cannot be discarded on the ground that the
medial evidence establishes that the bullets were fired F
when the deceased was in the standing position. [Para
36] [33-F-G]
Abdul Sayeed v. State of Madhya Pradesh (2010) 10
SCC 259: 2010(13) SCR 311; Budh Singh v. State of UP. G
AIR 2006 SC 2500: 2006 (2) Suppl. SCR 715 - cited.
4.3. Both PW-17 and PW-21, the driver and the
bodyguard respectively were silent with regard to.
exhortation by A-1, A-2, A-3 and A-4 to shoot at the
.... deceased. It appears that PW-17 and PW-21 were not H
8 SUPREME COURT REPORTS [2012] 10 S.C.R.
A aware of any shooting incident at all and they were under
the impression that the deceased had been injured by the
assault of the mob after he was pulled out from the car.
PW-17 and PW-21, do not seem to know what exactly
happened after they were pulled out from the car and
B beaten up by the mob. On the basis of their evidence, the
court cannot discard the evidence of ten other witnesses
that the deceased was shot with the revolver on the
exhortation of A-1 when the medical evidence established
that the cause of death of the deceased was on account
C of the bullet injuries on the deceased and not the assault
by the mob. Moreover, PW-17 and PW-21 may not have
supported the prosecution case but their evidence also
does not belie the prosecution case that the deceased
was shot on the exhortation by A-1. [Para 37] [35-F; 36-
D C-F]
4.4. The prosecution has been able to adduce
evidence through its witnesses that at the time of
shooting of the deceased, A-1 was at the spot and was
exhorting to shoot at the deceased. If A-1 wanted the
E court to believe that at the time of the incident, he was in
the car in the front of the procession and not at the spot,
he should have taken this defence in his statement under
Section 313 Cr.P.C. and also produced reliable evidence
in support of this defence. Section 103 of the Evidence
F Act, 1872 provides that the burden of proof as to any
particular fact lies on that person who wishes the court
to believe in its existence, unless it is provided by any law
that the proof of that fact shall lie on any particular
person. If A-1 wanted the court to reject this prosecution
G version as not probable, burden was on him to lead
evidence that he was not at the spot and did not exhort
to shoot at the deceased. Since he has not discharged
this burden, the High Court was right in holding that A-1
was guilty of the offence under Section 302/109 IPC. [Para
H 38] [36-H; 37-A-D]
ANAND MOHAN v. STATE OF BIHAR 9
deceased was a District Magistrate, he was killed in A
another district as an occupant of a car by chance, on
account of mob fury and exhortation by A-1 and firing by
a person and as A-1 was not the assailant himself, death
sentence would not be the appropriate sentence. This
was not one of those rarest of rare cases where the High B
Court should have confirmed the death sentence on A-
1. A-1 was liable for rigorous imprisonment for life. [Para
39]. [37-E-F]
Girja Prasad v. State of M.P. (2007) SCC 625; Sikandar
Singh and Ors. v. State of Bihar (2010) 7 SCC 477: 2010 (8)
c
SCR 373; Virendra Singh v. State of Madhya Pradesh (2010)
8 SCC 407: 2010 (9) SCR 772; Rizan and Anr. v. State of
Chhattisgarh (2003) 2 SCC 661: 2003 (1) SCR 457- cited.
Case Law Reference: D
(1991) 3 sec 206 Cited Para 15
2003 (1) SCR 754 Cited Para 15
2010 (13) SCR 311 Cited Para 16
E
c2001) sec 625 Cited Para 17
2010 (8) SCR 373 Cited Para 18
2010 (9) SCR 772 Cited Para 18
F
2003 (1) SCR 457 Cited Para 19
2011 (6 ) SCR 1037 Cited Para 20
2006 (2) Suppl. SCR 715 Cited Para 23
2006 (1) SCR 423 Cited Para 25 G
1995 (2) SCR 692 Relied on Para 28
1996 (8) Suppl. SCR 225 Relied on Para 28
H
10 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 2003 (2) Suppl. SCR 460 Relied on Para 30
(1978) 4 sec 311 Referred to Para 30
(1980) 4 sec 425 Referred to Para 30
1988 (3) SCR 513 Referred to Para 30
B
AIR 1974 SC 45 Relied on Para 34
1964(8) SCR 133 Relied on Para 35
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
C Nos. 1804-1805 of 2009.
From the Judgment & Order dated 10.12.2008 of the High
Court of Judicature at Patna in Death Reference No. 12 of
2007 and in Criminal Appeal (DB) No. 1345 of. 2007.
D
WITH
Crl. Appeal Nos. 1536, 1537, 1538, 1539, 1540, 1541, 1542
& 1806 of 2009.
E Ram Jethmalani, Surinder Singh, Nagendra Rai, Ranjit
Kumar, Ashok Kumar Singh, Kumar Ranjan, Shantanu Sagar,
Kripa Shankar Pd., M.P. Jha, Mohit Kumar Shah, Shilpi Shah,
Tungesh, Gopal Singh, Samir Ali Khan, Manish Kumar, Anant
Sharma, Deepak Prabhakaran, Shaikh Chand Saheb,
F Vijendra Kumar, M.P. Jha, Ram Ekbal Roy, Harshvardhan Jha,
Dileep Pillai, Baban Kumar Sharma, Chandan Ramamurthi,
Hari Shankar K., for the appearing parties.
The Judgment of the Court was delivered by
G A.K. PATNAIK, J. 1. These are all appeals by way of
special leave under Article 136 of the Constitytion against the
common judgment of the Patna High Court in Death Reference
No.12/2007 and Criminal Appeals (DB) Nos. 1282, 1308,
1318, 1327, 1345, 1354 of 2007.
H
ANAND MOHAN v. STATE OF BIHAR 11
[A.K. PATNAIK, J.]
FACTS A
2. The facts are that a typed report was lodged by Mohan
Rajak, Deputy Superintendent of Police (East), Muzaffarpur (for
short 'the informant') on 05.12.1994 at 22.10 hours (10.10 p.m.)
at PS Sadar, District Muzaffarpur (East), which was treated as
8
FIR. The prosecution case in the FIR briefly was as follows: On
the night of 04.12.1994, certain unknown criminals had
murdered Shri Kaushlendra Kumar Shukla @ Chhotan Shukla
and his associates at NH-28 and the post mortem on Chhotan
Shukla and the other deceased persons was done on
05.12.1994 at the SKM College Hospital. The supporters of C
Chhotan Shukla belonging to the Bihar Peoples Party gathered
in large numbers at the hospital. Considering the possibility of
breakdown of law and order, the officers of the civil and police
administration remained present with armed force and lathi
force at the hospital. After the post mortem, the dead bodies D
were taken in a procession to the house of Chhotan Shukla.
The procession was led by Arun Kumar Singh, Ramesh Thakur,
Shashi Shekhar Thakur, Ram Babu Singh, Harendra Kumar,
Vijay Kumar Shukla @ Munna Shukla and others and was
escorted by the officers of the civil and police administration. E
When the procession reached the house of Chhotan Shukla,
Anand Mohan, MLA, and Lovely Anand, M.P., and others who
were present there, offered flowers to the dead body of
Chhotan Shukla. At about 3.30 p.m., the dead body of Chottan
Shukla was taken in a procession to his ancestral house in F
village Jalalpur under Lalganj Thana in Vaishali district where
' about 5000 people gathered. Thereafter, the procession was
led by Anand Mohan, Lovely Anand, Professor Arun Kumar
Singh, Akhlak Ahmad, Harender Kumar, Rameshwar Wiplavi
and others and they were all in different vehicles. Anand Mohan G
and Lovely Anand were sitting in their Contessa car. An
Ambassador car and a white coloured Gypsy were moving in
front of the procession. When the procession reached the
Bhagwanpur Chowk, the dead body of Chottan Shukla was
kept for a while and Anand Mohan, Lovely Anand and Professor H
...
12 SUPREME COURT REPORTS [2012] 10 S.C.R.
A Arun Kumar Singh gave speeches instigating the crowd to take
revenge of the murder of Chhotan Shukla and others by murder
and to teach the administration a lesson if it created any hurdle.
After listening to the speeches, the people became aggressive.
The procession then moved from Bhagwanpur Chowk towards
B Ram Dayal Nagar through the National Highway. At about 4.15
p.m. when the procession came near Khabra Village on the
National Highway, the shouts "Maro Maro"were heard from the
midst of the procession. When the informant along with other
officers rea~ed the place from where the shouts were being
c heard, they found that on the right hand side of the road the
Ambassador car of the District Magistrate, Gopalganj, G.
Krishnaiyyah (coming from the opposite direction) had turned
turtle and the Diswict Magistrate was lying on the ground. They
also saw Anand Mohan, Lovely Anand, Professor Arun Kumar
D Singh and some others were loudly provoking Bhutkun Shukla
(brother of Chhotan Shukla) to kill the District Magistrate and
take revenge. Thereafter, Bhutkun Shukla drew out a revolver
from his waist and fired three shots and then escaped into the
crowd. The District Magistrate got wounded. Looking at the
E gravity of the situation, the Sub-Divisional Officer (East)
ordered lathi charge and the police and other officers present
started charging lathi at the crowd. The District Magistrate,
Gopalganj, was sent in a Gypsy to the SKM College Hospital
for treatment. Information was sent through wireless to the
District Headquarters of Vaishali District about the incident. In
F the meantime, the assailants fled to Hajipur and the informant
and the Sub-Divisional Officer (East) chased the assailants and
reached Hajipur where they found 15 persons including Anand
Mohan and Lovely Anand caught by the Hajipur police. All the
15 persons were arrested and their vehicles were seized. After
G the informant came back to Muzaffarpur, he got information that
the District Magistrate, Gopalganj, died at the SKM College
Hospital.
3. Pursuant to the FIR, investigation was carried out by the
H police and a charge-sheet was filed against 36 accused
ANAND MOHAN v. STATE OF BIHAR 13
[A.K. PATNAIK, J.]
persons. The learned Chief Judicial Magistrate, Muzaffarpur, A
committed the case to the Sessions Court. The Sessions Court
framed charge under Section 147 and Sections 302/149 of the
Indian Penal Code (for short 'the IPC') against all the 36
accused persons (A-1 to A-36) for being members of unlawful
assembly with the common object of committing the murder of B
the District Magistrate, Gopalganj, G. Krishnaiyyah, (for short
'the deceased') as well as the charge under Section 307/149
IPC for being a member of the unlawful assembly with the
common object of attempting to commit murder of the
photographer, the bodyguard and the driver of the deceased. c
All the 36 accused persons were also charged for the offence
under Sections 302/109 for abetting the commission of the
murder of the deceased. Anand Mohan, Lovely Anand and
Professor Arun Kumar Singh (A-1, A-2 and A-3 respectively)
were further charged under Sections 302/114 IPC.
D
4. At the trial, the prosecution examined as many as 25
witnesses. PW-1 to PW-14 were police officials who claimed
to be with or behind the procession till the incident occurred.
PW-15, PW-16 and PW-23 were doctors who proved the injury
reports and the post mortem report. PW-17 and PW-21 are E
the driver and the bodyguard of the deceased. PW-18 and PW-
19 are the Director and employee of the Forensic Science
Laboratory, Patna, who collected the blood-stained earth and
broken pieces of glass from the place of occurrence. PW-20
is the Executive Magistrate who accompanied the procession. F
PW-22 is the Assistant Sub-Inspector, Muzaffarpur District, who
investigated the case from 14.12.1994 to 16.12.1994. PW-25
is the Additional S.P. Muzaffarpur who investigated the case
for a few hours and PW-24 is the second investigating officer.
The defence also examined twelve witnesses at the trial. G
5. The Additional Sessions Judge-I, Patna (for short 'the
trial court') found Anand Mohan, Lovely Anand, Professor Arun
Kumar Singh, Akhlak Ahamad, Vijay Kumar Shukla @ Munna
Shukla, Harendra Kumar @ Harendra Pd. Sahi and Shashi
H
14 SUPREME COURT REPORTS [2012} 10 S.C.R.
A Shekhar Thakur (A-1, A-2, A-3, A-4, A-5, A-6 and A-7
respectively) guilty of the offences under Sections 147, 302/
149, 307/149 and 427/149 of the IPC. The trial court also held
Anand Mohan, Lovely Anand, Professor Arun Kumar Singh and
Akhlak Ahamad (A-1, A-2, A-3 and A-4 respectively) guilty of
B the offence of abetment to commit murder under Sections 302/
109 IPC. The trial court acquitted the remaining accused
persons A-8 to A-36 of au the charges. After '1earing on the
question of sentence, the trial court sentenced A-1, A-3 and A-
4 to death for the offence under Sections 302t't49 and 302/109
c of the IPC and further sentenced them for one year R.I. for the
offence under Section 147 IPC, 5 years R.I. for the offence
under Section 307/147 IPC and one year R.I. for the offence
under Section 427/149 IPC and all the sentences were to run
concurrently. The trial court, however, sentenced A-2 to life
imprisonment for the offences under Sections 302/149 and
0
302/109 IPC and a fine of Rs.25,000/-, for one year R.I. for the
offence under Section 147 IPC, 5 years R.I. for the offence
under Section 307/149 IPC and one year R.I. for the offence
under Section 427/149 IPC and all the sentences were to run
concurrently and in default of payment of fine she was to
E undergo simple imprisonment for a period of two years. The
trial court sentenced A-5, A-6 and A-7 for life imprisonment for
the offence under Section 302/149 IPC and to pay fine of
Rs.25,000/- each, R.I. for five years for the offence under
Section 307/149 IPC, R.I. for one year for the offence under
F Section 147 IPC and R.I. for one year for the offence under
Section 427/149 IPC and in default of payment of fine to
undergo simple imprisonment for two years and all the
sentences were to run concurrently.
G 6. The sentence of death on A-1, A-3 and A-4 were
referred to the High Court. Criminal appeals were also filed by
the convicts before the High Court. The High Court held in the
impugned common judgment that the prosecution has not been
able to establish a case of unlawful assembly with common
H object of causing death of the deceased, or any other person
ANAND MOHAN v. STATE OF BIHAR 15
[A.K. PATNAIK, J.]
and thus there could be no conviction under Sections 147 and A
302/149 IPC. The High Court, however, held on the basis of
evidence of PW-1, PW-3, PW-4, PW-9, PW-10 and PW-14 that
A-1 had exhorted the lone shooter to kill the deceased and
hence he alone was guilty of the offence of abetment of murder
under Section 302/109 IPC. Accordingly, the High Court B
acquitted A-2 to A-7 of all the charges and sustained the
conviction of A-1 but converted the sentence of death on A-1
to one of rigorous imprisonment for life.
7. A~grieved, A-1 has filed Criminal Appeal No.1804-
1805 of 2009 challenging the impugned judgment of the High C
Court in so far as it sustained his conviction under Section 302/
109 IPC and imposed the punishment of rigorous imprisonment
for life. The State of Bihar has filed Criminal Appeal Nos. 1536,
1537, 1538, 1539, 1540, 1541, 1542 and 1806 of 2009
challenging the impugned judgment of the High Court insofar D
as it acquitted A-2 to A-7 and insofar as it converted the death
sentence on A-1 to life imprisonment.
CONTENTIONS
E
8. Mr. Ram Jethmalani, learned senior counsel appearing
for A-1 submitted that the occurrence took place at 4.15 P.M.
on 05.12.1994 and soon thereafter information was sent
through wireless to the· District Headquarter, Vaishali District
about the incident and hence this information was the real FIR
and would disclose the first account of the occurrence. He F
vehemently argued that this wireless message sent soon after
the incident to the District Headquarters of District Vaishali
clearly stated that the people who got mixed with the funeral
procession of the cremation of Chhotan Shukla have injured the
deceased by shooting him with a revolver and fled towards G
Hajipur by different vehicles and this was the real FIR of the
case but the High Court has not even applied its mind to this
real FIR of the case.
9. He submitted that instead of this wireless message, a H
16 SUPREME COURT REPORTS (2012] 1O S.C.R.
A typed report of the informant PW- "14 has been treated as the
FIR. He argued that this typed report of PW-14 treated as FIR
is stated to have been lodged in th<! Sadar P.S. at 22:10 hrs.
(10.10 P.M.) on 05.12.1994, but the evidence of PW-11 would
show that the informant PW-14 returned to Muzaffarpur only after
B 2.00 A.M. on 06.12.1994. He submitted that the High Court has
also noticed in the impugned judgment that the FIR mentioned
the name of Dy.S.P.-Dhiraj Kumar as the Investigating Officer
who joined after leave on duty on 06.12.2004 and took up
investigation at 8.15 A.M. from the first 1.0. PW-25 He argued
C that all these facts clearly establish that not only the FIR was
ante-dated and ante-timed as 05.12.1994, 10.10 P.M. but also
fabricated by PW-14 making false allegations against A-1 and
against the members of his political party on the instructions
of political superiors. He contended that the High Court having
held that there was evidence to suspect that the FIR was ante:-
D dated and ante-timed should have also come to the conclusion
that the entire prosecution case as stated in the FIR by PW-14
was false.
10. Mr. Jethmalani next submitted that the High Court has
E rightly rejected the prosecution version that there was an
unlawful assembly with the object of murdering the deceased
and, therefore, the offences under Section 147 and 302/149
were not made out against any of the accused persons. He
contended that having come to this finding, the High Court could
F not have held A-1 guilty of the offence of abetting the murder
under Section 302/109 IPC on the ground that A-1 had incited
Bhutkun Shukla to commit the murder. He submitted that almost
all the prosecution witnesses have stated that the deceased
was shot by Bhutkun Shukla when he was ifing injured on the
G ground, but the medical evidence establishes that he was shot
when he was in a standing position and thus the prosecution
witnesses have not actually seen the incident nor heard any
exhortation by A-1 to Bhutkun to kill the deceased. He argued
that the High Court having recorded the finding that PW-11 was
H a false witness could not have believed the other witnesses
ANAND MOHAN v. STATE OF BIHAR 17
[A.K. PATNAIK, J.]
supporting the case that was put forward by PW-11 in his A
evidence. He relied on the station Diary entry Nos. 92, 94, 97
and 102 of the Police Station of PW-11 to show that PW-11
was not even there in the procession accompanying the dead
body of Chhotan Shukla but had gone for some investigation
at the University where he was stationed as a police officer. B
11. He argued that the High Court failed to realize that A-
1 along with his wife A-2 were in a white Contessa Car which
was almost at the front of the procession behind the police car
and the Tata Maxi carrying the dead bodies of Chhotan Shukla C
and another, whereas the shouts of "maro maro" came from
the rear of the procession and the witnesses have all deposed
that when they reached there they found that the Car was over-
turned and the deceased was lying injured on the ground. He
submitted that the deceased was, therefore, dead before A-1
Anand Mohan could come from his Contessa car to the place D
of occurrence and the entire prosecution story that Bhutkun was
incited by A-1 to kill the deceased must necessarily be false.
12. Mr. Jethmalani submitted that the High Court failed to
appreciate the following circumstances: E
(i) There is no evidence that A-1 knew the deceased and,
therefore, when the car of the deceased came from the
opposite direction and crossed the Contessa Car in which
·A-1 was sitting he did not know that it was the deceased
F
who was sitting in the car and there was no reason for him
to incite any one to kill him;
(ii) There is no evidence that A-1 got out of his Contessa
Car which was in front of the procession and went towards
the rear of the procession to incite the killing of the G
deceased;
(iii) The provocative speech attributed to A-1 were at
Bhagwanpur Chowk and the police officers are the only
witnesses who have deposed with regard to such H
18 SUPREME COURT REPORTS [2012] 10 S.C.R.
A provocative speech by A-1 and their deposition that the
speech was provocative was the opinion of the police
officers and hence the High Court rightly did not rely on the
provocative speech of A-1 to convict him;
B (iv) There were discrepancies in the evidence of witnesses
with regard to the exhortation by the accused persons to
Bhutkun to shoot and thus the High Court should have
rejected the story of the prosecution that A-1 incited
Bhutkun to shoot the deceased;
c (v) The prosecution story that the procession wanted to
seek vengeance on the administration is falsified by an
independent witness PW-12 (Tara Razak), the SDO who
accompanied the procession;
D (vi) The High Court did not take into consideration the
evidence of PW-17 and 21, the driver and the body guard
of the deceased, who did not support the prosecution
case.
E He submitted that had the High Court considered these
circumstances, it would have acquitted A-1 of all the charges.
13. Mr. Ranjeet Kumar, learned senior counsel appearing
for the State of Bihar, submitted that the court must appreciate
the facts which have led to the occurrence in this case. He
F submitted that Chhotan Shukla was a candidate in th~ ensuing
State Assembly elections on behalf of the Bihar Peoples Party
of which A-1 and A-2 were leaders and on 04.12.1994 Chhotan
Shukla and his four associates were killed by some unknown
persons in Muzaffarpur. He submitted that the gathering on
G 05.12.1994 at the SKM College Hospital where the bodies of
Chhotan Shukla and others were taken for post mortem was
of people belonging to the Bihar Peoples Party and the.
procession which accompanied the dead bodies of Chhotan
Shukla and others was a show of political strength displayed
H by A-1 and A-2 and his political associates. He submitted that ·
ANAND MOHAN v. STATE OF BIHAR 19
[A.K. PATNAIK, J.]
the provocative speeches delivered by A-1, A-2 and others of A
the Bihar Peoples Party at the Bhagwanpur Chowk aroused the
emotions in the crowd of almost 5000 people to take revenge
by bloodshed and this was the cause for the violence on the
car of the deceased which was coming from the opposite
direction when the procession reached Village Khabra. He B
submitted that the violent crowd pulled out the occupants of the
car, beat them, overturned the car and finally Bhutkun Shukla
shot the deceased on the exhortation of A-1 to A-4 because
the deceased represented the State administration. He
submitted that the High Court has not appreciated these c
background facts which led to the murder of the deceased and
has acquitted A-2 to A-7 and has sustained only the conviction
of A-1 under Section 302/109 IPC.
14. In reply to the submissions of Mr. Jethmalani that the
wireless message sent to the District Headquarters, Vaishali D
district soon after the incident on 5.12.1994 was the real FIR,
Mr. Ranjeet Kumar submitted that the wireless message was
very cryptic and could not be treated as an FIR. He cited the
decision of this Court in Binay Kumar Singh and others v.
State of Bihar [(1997) 1 SCC 283] in which it has been held E
that the officer in-charge of the police station is not obliged to
accept as FIR any nebulous information received from
somebody which does not disclose any authentic cognizable
offence and it is open to the officer in-charge to collect more
information containing details of the occurrence, if available, so F
that he can consider whether a cognizable offence has been
committed warranting investigation.
15. On the delay in lodging the FIR, he referred to the
evidence of the informant, PW-14, to show that he had to first G
send the deceased in the Gypsy car for treatment to the SKM
College Hospital and he had to go to Hajipur to arrest the
accused persons and only after the accused persons were
taken to custody at Hajipur, he came back to Muzaffarpur and
prepared the typed report and lodged the same as FIR in the
H
20 SUPREME COURT REPORTS [2012) 10 S.C.R.
A· Sadar P.S. at about 10.00 P.M. in the night. He submitted that
there was thus sufficient explanation for the delay in lodging the
FIR. He cited Erram Santosh Reddy and others v. State of
Andhra Pradesh ((1991) 3 SCC 206) in which there was a
delay of six hours in lodging the FIR and the prosecution
B explained that the. police had to raid, effect recoveries and
thereafter submit a report in the concerned police station and
on thes'e facts this Court held that no adverse inference could
be drawn because of the delayin lodging the FIR. He submitted
that in Amar Singh v. Ba/winder Singh & Ors. [(2003) 2 SCC
c 518) this Court has held that a delay of 26 hours in lodging the
FIR from the time of the incident was fully explained from the
evidence on record and, therefore, no adverse inference could
be drawn against the prosecution.
16. Mr. Ranjeet Kumar submitted that the medical evidence
D did not altogether make the ocular evidence improbable. He
argued that the ocular evidence of different witnesses
categorically states that Bhutkun Shukla came out from the
crowd and fired 3 shots and PW-16, who conducted the post
mortem, has stated that there were three bullet injuries in the
E body of the deceased. He submitted that no one can predict
how a human body would respond to the first bullet shot and
therefore from the nature of the bullet injuries in the body of the
deceased who was shot from a ver'f close range, one cannot
conclude that the deceased could not have been shot after he
F fell on the ground as contended by Mr. Jethmalani. He cited the
decision of this Court in Abdul Sayeed v. State of Madhya
Pradesh ((2010) 10 SCC 259) for the proposition that ocular
testimony has greater evidentiary value vis-a-vis medical
evidence. He submitted that in the present case the medical
G evidence does not go so far as to rule out the truth of the ocular
evidence. · ·
17. He submitted that the oral !!Vidence in this case is
consistent that A-1, A-2, A-3 and A-4 not only delivered
H provocative speeches against the administration and aroused
ANAND MOHAN v. STATE OF BIHAR 21
[A.K. PATNAIK, J.]
the emotions of the crowd to resort to bloodshed but also A
exhorted Bhutkun Shukla to shoot at the deceased who
represented the State administration. He referred to the
evidence of PWs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14
who have deposed about the provocative speeches and
exhortation of A-1 to A-4. He cited Masalti v. State of U.P. B
[1964(8) SCR 133] wherein this Court has held that where a
criminal court has to deal with the evidence pertaining to the
commission of offence involving large number of offenders and
large number of victims, it is usual to adopt a test that the
conviction could be sustained only if it is supported by two or C
three or more witnesses who give a consistent account of the
incident. He also referred to the decisions of this Court in Binay
Kumar Singh and others v. State of Bihar (supra) and Abdul
Sayeed v. State of Madhya Pradesh (supra) in which the test
laid down in Masalti v. State of U.P. (supra) has been
reiterated. He submitted that unfortunately the High Court D
disbelieved the police witnesses and preferred to rely on the
evidence of only the civilian officials and acquitted A-2 to A-7
of all the charges and sustained only the conviction of A-1
although there was sufficient evidence against A-2 to A-7. He
cited Girja Prasad v. State of M.P. [(2007) SCC 625] wherein E
it has been held by this Court that it is not the law that police
witness should not be relied upon and their evidence cannot
be accepted unless it is corroborated in material particulars by
other independent evidence.
F
18. He submitted that the High Court also acquitted A-1
to A-7 of the charges under Sections 147 and 302/149 IPC on
the ground that there was no unlawful assembly with common
object to commit the murder of the deceased or any other
person. He cited the decisions of this Court in Sikandar Singh G
and others v. State of Bihar [(2010) 7 sec 477] and Virendra
Singh v. State of Madhya Pradesh [(2010) 8 SCC 407] to
contend that the A-1 to A-7 had formed an unlawful assembly
with the common object of murdering the deceased and the
other occupants of the car at the spur of the moment.
H
22 SUPREME COURT REPORTS [2012] 10 S.C.R.
A 19. He relied on the decision of this Court in Rizan and
Another v. State of Chhattisgarh [(2003) 2 SCC 661] to argue
that normal discrepancies· in evidence are likely to occur due
to normal errors of observations, normal errors of memory due
to lapse of time and due to mental disposition such as shock
a and horror at the time of occurrence but these discrepancies
do not make the evidence of a witness untrue and it is only the
material discrepancy which ~ffect the credibility of a party's
case. He submitted that had the High Court overl~oked the
minor and normal discrepancies in the evidence of different
c witnesses who had given their account of the incident as
observed by them from different places at the spot at the time
of occurrence it would have come to the conclusion that the
witnesses gave a consistent account of the involvement of A-1
to A-7 in committing the offence under Sections 302/149 and
302/109 IPC. He submitted that High Court, therefore, could not
0
have set aside the findings of the trial court and should have
sustained also the death sentence on A-1, A-3 and A-4.
20. Mr. Surinder Singh, learned senior counsel appearing
for the respondents in Criminal Appeals Nos. 1536, 1537,
E 1538, 1540, 1541 and 1542 of 2009, submitted in reply that
the fact that the FIR was not lodged soon after the incident at
4.15 P.M. on 05.12.1994 indicates that the informant and all
other officers accompanying the procession had no inkling
whatsoever as to who committed the murder of the deceased.
F He cited the decision of this Court in Bhagaloo Lodh and
Another v. State of Uttar Pradesh [(2011) 13 SCC 206] in
which it has been held that prompt and early reporting of the
occurrence by the informant with all its vivid details gives an
assurance regarding the truth of its version and where there is
G a delay in lodging the FIR without any explanation a
presumption can be raised that the allegations in the FIR were
false and that it contains a coloured version of the events that
had taken place. He also relied on Awadesh v. State of M.P.
[AIR 1988 SC 1158], in which this Court found that the FIR was
H lodged belatedly because the names of the assailants were not
ANAND MOHAN v. STATE OF BIHAR 23
[A.K. PATNAIK, J.]
known and a lot of deliberation took place before lodging the A
FIR and this Court held that the prosecution has failed to prove
its case beyond reasonable doubt. He also cited Ganesh
Bhavan Patel v. State of Maharashtra [(1978) 4 SCC 371] in
which this Court has held that the inordinate delay in the
registration of the FIR and further delay in recording the B
statement of material witnesses caused a cloud of suspicion
on the credibility of the entire warp and woof of the prosecution
story. He submitted that in Marudanal Augusti v. State of
Kera/a [(1980) 4 SCC 425] this Court gave the benefit of doubt
to the accused and acquitted him after it found that the FIR was c
fabricated and brought into existence long after the occurrence.
21. He submitted that the High Court was right in coming
fo the conclusion that no case of unlawful assembly was
established against A-1 to A-7. He argued that the speeches
made at Bhagwanpur Chowk were not provocative but D
rhetorical and in any case since an Executive Magistrate was
also present all through along with the procession the Court
could not come to the conclusion that the accused persons
constituted an unlawful assembly either at Bhagwanpur Chowk
where the speeches were delivered or at Khabra where the E
incident took place.
22. He referred to the evidence of PW-12 & PW-13 who
were sub-divisional officers and to the evidence of PW-21 who
was the bodyguard of the deceased to show that these F
independent witnesses have not said anything about the
exhortation by A-1 to A-7 to Bhutkun to kill the deceased. He
also submitted that the evidence of the prosecution witnesses
are not consistent on the point as to who exhorted Bhutkun to
kill the deceased and, therefore, the decision of this Court in G
., Masalti v. State of UP. (supra) does not apply to the facts of
the present case. He submitted that in Jainul Haque v. State
of Bihar [AIR 1974 SC 45] this Court has held that evidence of
exhortation is in the very nature of things a weak piece of
evidence and there is often quite a tendency to implicate some
person in addition to the actual assailant by attributing to that H
24 SUPREME COURT REPORTS [2012] 10 S.C.R.
A person an exhortation to the assailant to assault the victim and
unless the evidence in this respect is clear, cogent and reliable,
no conviction for abetment can b'e recorded against the person
alleged to have exhorted the actual assailant. He submitted that
considering the proposition of law laid down in this decision,
B and considering the fact that there are discrepancies with
regard to who exhorted Bhutkun to shoot at the deceased, the
conviction of A1-A7 would not be unsafe.
23. He submitted that if as has been deposed by the
C prosecution witnesses the deceased was lying on the ground
when Bhutkun shot at him, then the first injury on the deceased
could not have at all been caused by shooting and, therefore,
the witnesses were lying. He cited Awadesh v. State of M.P.
(supra) in which this Court did not believe the prosecution
witnesses because of the opinion of the doctor that the person
0
who had caused the injuries on the deceased was at a higher
level than the deceased and this opinion was wholly
inconsistent with the testimony of the eye-witnesses and the
medical expert's opinion corroborated other circumstances
which indicated that the eye-witnesses had not seen the actual
E occurrence. He also relied on Budh Singh v. State of UP. [AIR
2006 SC 2500] in which this Court has held that from the
medical evidence it appeared that the direction of the injury was
from upwards to downwards and this belies the statements of
prosecution witnesses that the accused and the deceased were
F in a standing position and were quarrelling with each other.
24. He finally submitted that the High Court lost sight of the
fact that although the procession started from Muzaffarpur and
the speeches were delivered at Bhagwanpur Chowk the
G incident took place at Khabra Village and the car could have
been overturned and deceased could have been shot not by r
any person coming in the procession but by a person from
amongst the crowd of Khabra Village who had gathered to see
the procession.
H 25. Mr. Nagendra Rai, learned senior counsel appearing
ANAND MOHAN v. STATE OF BIHAR 25
[A.K. PATNAIK, J.]
for the respondent in Criminal ·Appeal No.1539 of 2009 (A-4 A
Akhlak Ahmad), submitted that it has come in evidence that the
Chief Minister of Bihar was present at the SKM College and
Hospital, Muzaffarpur. He cited the decision of this Court in Om
Prakash v. State of Haryana [(2006) 2 SCC 250], in which this
Court considered the presence of Dy. S.P. at the place of B
occurrence for about three hours and also considered the fact
that there was no explanation for the long delay in lodging the
FIR and gave the benefit of doubt to the accused persons. He
also relied on Ganesh Bhavan Patel v. State of Maharashtra
(supra) wherein this Court took into consideration the delay in c
registration of the FIR as a circumstance for acquitting the
accused of the charges.
26. He submitted that the High Court has rightly held that
there was no unlawful assembly with the object of murdering
the deceased or any other person. He submitted that the 0
accused persons could not have shared the object of Bhutkun
to kill the deceased and, therefore, there was no "common
object" which is a necessary ingredient of an unlawful assembly
and hence the offences under Section 147 and 302/149 IPC
have not been made out against the accused persons. E
27. He also referred to the evidence of PWs 12, 13 and
20 to show they have not supported the prosecution case that
the killing of the deceased took place before them and they
have stated in their evidence that when they reached the spot, F
the shooting incident had already takE:ln place. He submitted
that even PW-1 has stated that no police personnel had
reached the spot where the shooting took place. He argued
that PW-21, the bodyguard of the deceased who is the most
material witness had not supported the ca:se of the prosecution G
that A-1, A-2, A-3 and A-4 had exhorted~Bhutkun to shoot.at
the deceased. He submitted that it is diffi~lt to believe that the
police personnel would not have prevapted the killing of the
deceased if the killing was about to~'ake place in their
presence. He finally submitted that the photographer, who H
26 SUPREME COURT REPORTS [2012] 10 S.C.R.
A accompanied the deceased, though a material witness, has not
been examined in Court and an adverse inference should be
drawn against the prosecution for withholding the photographer
from giving evidence in Court.
B FINDINGS
28. The first question that we have to decide is whether
the wireless message sent soon after the incident on
05.12.1994 is the real FIR as contended on behalf of the
defence or whether the typed report subsequently lodged by
C PW-14 in the Muzaffarpur Sadar Police Station is the FIR as
contended on behalf of the prosecution. Sub-section (1) of
Section 154 Cr.P.c. which provides for the First Information
Report is quoted hereinbelow:
D "(1) Every information relating to the commission of a
cognizable offence, if given orally to an officer in charge
of a police station, shall be reduced to writing by him or
under his direction, and be read over to the informant; and
every such information, whether given in writing or reduced
to writing as aforesaid, shall be signed by the person giving
E
it, and the substance thereof shall be entered in a book to
be kept by such officer in such form as the State
Government may prescribe in this behalf."
It will be clear from the language of sub-section (1) of
F Section 154 Cr.P.C. that every information relating to the
commission of a cognizable offence whether given in writing
or reduced to writing shall be signed by the person giving it.
Hence, the person who gives the information and who has to
sign the information has to choose which particular information
G relating to the commission of a cognizable offence is to be
treated as an FIR. In the present case, PW-14, the informant
has chosen not to treat the wireless message but the
subsequent typed information as the FIR and the police has also
not treated the wireless message but the subsequent typed
H information as the FIR. Moreover, the wireless message sent
ANAND MOHAN v. STATE OF BIHAR 27
[A.K. PATNAIK, J.]
soon after the incident on 05.12.1994 stated only that the A
people mixed with the crowd of funeral procession for the
cremation of Chottan Shukla have injured the deceased by
shooting him with revolver and have fled towards Hajipur by
different vehicles. This wireless message was cryptic and did
not sufficiently disclose the nature of the offence committed B
much less the identity of the persons who committed the
offence. Unless and until more information was collected on how
exactly the deceased was killed, it was not mandatory for either
PW-14 to lodge the same as FIR or for the Officer lncharge of
a police station to treat the same as an FIR. Such cryptic c
information has been held by this Court not to be FIR in some
cases. In Sheikh lshaque and Others v. State of Bihar ((1995)
3 SCC 392] Gulabi Paswan gave a cryptic information at the
police station to the effect that there was a commotion at the
village as firing and brick batting was going on and this Court
0
held that this cryptic information did not even disclose the
commission of a cognizable offence nor did it disclose who
were the assailants and such a cryptic statement of Gulabi
Paswan cannot be treated to be an FIR within the meaning of
Section 154 Cr.P.C. Similarly, in Binay Kumar Singh and
others v. State of Bihar (supra) information was furnished to E
' the police in Ex.10/3 by Rabindra Bhagat that the sons of late
Ram Niranjan Sharma along with large number of persons in
his village have set fire to the houses and piles of straws and
have also resorted to firing. This Court held that Ex.10/3 is
evidently a cryptic information and is hardly sufficient to discern F
the commission of any cognizable offence therefrom. In our
considered opinion, therefore, the trial court and the High Court
have rightly treated the subsequent typed written information
lodged by PW-14 and not the wireless message as the FIR.
G
,. 29. The second question that we are called upon to decide
is whether the typed report of PW-14 which has been treated
as the FIR was lodged at 10.10 p.m. on 05.12.1994 as claimed
by prosecution or was actually lodged at the Muzaffarpur Sadar
Police Station in the morning of 16.12.1994 as contended by H
28 SUPREME COURT REPORTS [2012) 10 S.C.R.
A the defence. We have perused the evidence of PW-14, the
informant. He has stated that after the deceased was injured
by a person with his revolver at abou! 4.15 p.m. on 05.12.1994,
the mob starting escaping from the main road to Lalganj and
some people ran towards Hajipur and he along with others
B followed the mob and reached Hajipur at 6 O' Clock and went
to the Circuit House and stayed there for one hour and then left
for Muzaffarpur at 7 O' Clock. In the impugned judgment, the
High Court did not accept this evidence of PW-14 that he left
Hajipur for Muzaffarpur at 7.00 P.M. as it found that most of the
c other witnesses had admitted that they left Hajipur at 9.00 P.M.
and PW-11 had admitted that he left Hajipur at 12.00 in the
midnight so as to reach Muzaffarpur at 2.00 A.M. in the night
along with others. Though PW-11 has stated in his evidence
that all the people returned from Hajipur Circuit House at 7 O'
0 Clock, he has also stated in his evidence that he was with the
SDO till 12 in the midnight and he went to Garoul, Hajipur, and
after apprehending the accused he returned to Muzaffarpur.
PW-11 has further stated that he returned to the Sadar Police
Station at Muzaffarpur at 2 O' Clock at night and the DM, SP,
E SDO, DSP (PW-14) and other officers also returned with him.
Hence, the High Court has held that PW-14 along with other
officers including PW-11 reached Muzaffarpur at 2.00 pm in the
night. After reaching the Sadar Police Station at Muzaffarpur,
PW-14 has taken some more time to lodge the lengthy typed
written FIR. PW-14 has stated that for lodging the FIR at the
F Muzaffarpur Sadar Police Station he took help from all the
officers present and in fact took the statements of 4-5 officers.
He has stated that he made a typed FIR and he took half an
hour to complete the statement and it took one hour to lodge
the FIR. On the basis of all these evidence on record, the High
G Court did not accept the version of the prosecution that the FIR
was lodged with the Muzaffarpur Sadar Police Station at 10.1 O •
p.m. on 05.12.1994 and has instead held that the evidence
creates a reasonable suspicion about the FIR being ante dated
and ante timed. We do not find any error in this finding of the
H High Court.
ANAND MOHAN v. STATE OF BIHAR 29
[A.K. PATNAIK, J.f
30. We now come to the main contention on behalf of the A
defence that the High Court should have totally discarded the
prosecution story once it held that the evidence creates a
reasonable suspicion about the FIR being ante-dated and ante-
timed. In none of the cases cited by the defence, we find that
this Court has discarded the entire prosecution story only on B
the ground that the FIR was ante dated and ante timed. In
Ganesh Bhavan Patel v. State of Maharashtra (supra) relied
on by the defence this Court considered the inordinate delay
in recording the statements of witnesses under Section 161
Cr.P.C. and other circumstances along with the fact that the FIR c
was lodged belatedly without proper explanation and then held
that the prosecution case was not reliable. Again, in Marudanal
Augusti v. State of Kera/a (supra) cited by the defence, this
Court disbelieved the prosecution story not because of
unexplained delay in the dispatch of the FIR to the Magistrate 0
only but also because the FIR which contained graphic details
of the occurrence with the minutest details did not mention the
names of the witnesses and there were other infirmities to throw
serious doubt on the prosecution story. In Awadesh v. State of
M.P. (supra) relied on by the defence, besides finding that the E
delay in lodging the FIR was suspicious, this Court also found
that the empty cartridges were recovered from the place of
occurrence one day after the incident and the medical evidence
established that the witnesses had not actually seen the incident
and considering all these circumstances this Court held that the
prosecution had not proved the case beyond reasonable doubt. F
.. This Court has, on the other hand, held in State of M.P. v.
Mansingh and others [(2003) 10 SCC 414] that if the date and
time of the FIR is suspicious, the prosecution version is not
rendered vulnerable but the court is required to make a careful
analysis of the evidence in support of the prosecution case. G
Thus, we will have to make a careful analysis of the evidence
in this case to find out how far the prosecution case as alleged
in the FIR is true.
31. In the present case, the fact remains that soon after H
30 SUPREME COURT REPORTS [2012] 10 S.C.R.
A the incident at about 4.15 P.M. on 05.12.1994 information was
sent from the place of the incident to the District Headquarters
of Vaishali district that the people mixed with the funeral
procession for the cremation of Chottan Shukla have injured the
deceased by a revolver and fled towards Hajipur by different
B vehicles. At least this part of the prosecution case which finds
place in the subsequent typed FIR lodged by PW-14 in the early
hours of 06.12.1994 cannot be discarded to be false and the
court will have to decide on the basis of evidence as to who
amongst the people in the funeral procession for cremation of
c Chottan Shukla are responsible for the injury caused to the
deceased.
32. In fact, the High Court also has not accepted the entire
version of the FIR lodged by PW-14 and has rejected the case
of the prosecution in the FIR that there was an unlawful
D assembly and that A-1 to A-7 were part of that unlawful
assembly with the object of killing the deceased. The High Court
has held in the impugned judgment that the mob which
surrounded the car of the deceased caused damage to the car
by throwing brickbats and caused injuries to its occupants after
E pulling them out and had turned into an unlawful assembly but
from the evidence on record and the circumstances it is not
established that even the members of such mob shared the
common object of killing the deceased. The High Court has
further held that some of the processionists who were in the
F vehicles close to the place of occurrence could have come out
from their vehicles to find out the reasons for the commotion
but when nobody was even aware that the deceased would be
passing through the place such persons cannot be held to be
members of unlawful assembly actuated by the common object
G of killing the deceased. The High Court has also held that there
were no allegations that the processionists were carrying any
arms and there was insufficient evidence about the exact
.
behaviour of the assembly at the scene of the occurrence. The
High Court has further held that the driver and the bodyguard
H of the deceased have stated in their evidence that the car cquld
ANAND MOHAN v. STATE OF BIHAR 31
[A.K. PATNAIK, J.]
not pass on the left side of the road because of presence of a A
mob on the flank of the road while the funeral procession was
moving and this shows that the attack on the car of the
deceased and its occupants was a sudden act of the mob
which had gathered to watch the funeral procession near
Khabra Village. The High Court has found that the driver and B
the bodyguard of the deceased have not said anything in their
evidence on what led to the anger of the mob and instead they
had been anxious to show that they had committed no mistake
due to which the deceased was killed. The High Court has thus
held that the processionists, who were going with the dead body c
on motor vehicle, did not have any common object and
therefore did not constitute an unlawful assembly and hence A-
1 to A-7 could not be held liable for the offence under Section
302/149 IPC on the ground that they were members of an
unlawful assembly which had the object of killing the deceased
0
or any other person. In our considered opinion, the High Court
rightly rejected the contention of the prosecution that A-1 to A-
7 were liable for conviction under Section 302/149 IPC.
33. The High Court after carefully scrutinizing the evidence
of the witnesses has also discarded the prosecution story in E
the FIR lodged by PW-14 that A-2, A-3 and A-4 had exhorted
Bhutkun Shukla to kill the deceased. The High Court has held
that none of the eye-witnesses of Category-II comprising the
civil officials, the driver and the bodyguard, namely, PW-12,
PW-13, PW-17 and PW-21 have supported the allegations of F
exhortation by A-1 to A-7 and out of the Category-I witnesses
comprising Police Personnel, PW-5 and PW-9 have not heard
anyone exhorting Bhutkun Shukla to kill the deceased. The High
Court has further held that out of the seventeen alleged eye-
witnesses, six witnesses do not speak of exhortation and out G
of the remaining eleven prosecution witnesses, six witnesses
namely, PW-1, PW-3, PW-4, PW-9, PW-10 and PW-14, have
said that only A-1 exhorted Bhutkun Shukla to shoot at the
deceased. Accordingly, the High Court has recorded the
finding that only A-1 exhorted the lone shooter to kill the H
32 SUPREME COURT REPORTS [2012] 10 S.C.R.
A deceased and was guilty of the offence of abetment under
Section 109 IPC and was liable for punishment under Section
302/109 IPC for the murder of the deceased and A-2, A-3 and
A-4 have to be acquitted of the charges under Section 302/109
IPC.
B
34. We have gone through the evidence of the witnesses
and we find that this finding of the High Court that A-2, A-3 and
A-4 cannot be held guilty of the offences under Section 302/
109 IPC is based on a correct appreciation of evidence of the
C prosecution witnesses. Out of fourteen witnesses who
accompanied the procession, only four witnesses, namely, PW-
6, PW-7, PW-8 and PW-11 have said that A-2 along with A-1
exhorted Bhutkun Shukla to shoot at the deceased, whereas
the remaining eight do not say that A-2 also exhorted Bhutkun
Shukla to shoot at the deceased. Similarly, out of the fourteen
0 witnesses who accompanied the procession, only PW-7 and
PW-8 have spoken of exhortation by A-3 to Bhutkun Shukla to
shoot at the deceased and the remaining eleven witnesses
have not said that A-3 also exhorted Bhutkun Shukla to shoot
at the deceased. Again out of the fourteen witnesses examined
E by the prosecution, only PW-7 and PW-11 have said that A-4
also exhorted Bhutkun Shukla to shoot at the deceased, but the
remaining twelve witnesses have not said that A-4 also
exhorted Bhutkun Shukla to shoot at the District Magistrate. This
Court has held in Jainul Haque v. State of Bihar (supra) that
F evidence of exhortation is in the very nature of things a weak
piece of evidence and there is often quite a tendency to
implicate some person in addition to the actual assailant by
attributing to that person an exhortation to the assailant to
assault the victim and unless the evidence in this respect is
G clear, cogent and reliable, no conviction for abetment can be
recorded against the person alleged to have exhorted the actual
assailant. Since the majority out of the fourteen prosecution
witnesses comprising both civilian and police personnel
accompanying the procession do not support the prosecution
H version that A-2, A-3 and A-4 also exhorted Bhutkun Shukla to
ANAND MOHAN v. STATE OF BIHAR 33
[A.K. PATNAIK, J.]
shoot at the deceased, it will not be safe to convict A-2, A-3 A
and A-4 for the offence of ab~tment of the murder of the
deceased. In our view, therefore, the High Court was right in
acquitting A-2, A-3 and A-4 of the charge under Section 302/
109 IPC.
B
35. In Masalti vs. State of U.P. (supra), this Court has held
that where a criminal court has to deal with the evidence
pertaining to the commission of offence involving large number
of offenders and large number of victims, it is usual to adopt a
test that the conviction could be sustained only if it is supported C
by two or three or more witnesses who give a consistent
account of the incident. In this case, ten out of the fourteen
witnesses who were accompanying the procession and were
near the place of occurrence have given a consistent version
that A-1 exhorted Bhutkun Shukla to shoot at the deceased.
PW-1, PW-3, PW-4, PW-6, PW-7, PW-8, PW-9, PW-10, PW- D
11 and PW-14, have consistently deposed that A-1 exhorted
Bhutkun Shukla to shoot at the deceased. The remaining four
witnesses may be at the place of occurrence but for some
reason or the other may not have heard the exhortation by A-1
to Bhutkan to shoot at the deceased. Hence, just because four E
of the fourteen witnesses have not deposed regarding the fact
of exhortation by A-1, we cannot hold that the ten witnesses
have falsely deposed that A-1 had exhorted Bhutkun to shoot
at the deceased.
F
36. We have also considered the submission of the
defence that these witnesses have deposed that the deceased
was shot by Bhutkun Shukla when he was lying injured on the
ground but the medical evidence establishes that the bullets
were fired when the deceased was in the standing position and G
on this ground the evidence of these ten witnesses who have
deposed with regard to exhortation by A-1 to Bhutkun Shukla
to shoot at the deceased should be discarded. We find that PW-
16, Dr. Momtaj Ahmad who carried out the post mortem on the
dead body of the deceased on 05.12.1994 at 4.40 P. M. has H
34 SUPREME COURT REPORTS [2012) 10 S.C.R.
A described in his evidence the following three ante mortem
injuries on the body of the deceased:
"(1)(a) Due oval wound 1/3" in diameter with inverted
margin and burning of the area on lateral side of the left
8 eye brow.
(b) lacerated injury internal cavity deep with inverted
margin was found on central part of forehead just above
eye brow 3" x 1.2" into internal cavity from which fractured
piece of frontal bone and brain material was prodding out.
c
On dissection the two wound were found interconnected.
(ii) One oval wound Xi" in diameter with inverted margin
was found at left cheek.
D On dissection maxilla and mandible were found fractured
and tongue and inner part of lower lip was found lacerated.
The projectile after entering the left cheek and damaging
above organs have passed away from oval cavity.
E (iii) One oval wound with interverted margin and singling
and burning of the margin Xi" in diameter was found on
right parietal region of head;
(b) One oval wound 1.3" x W' into internal cavity deep with
everted margin was found on left parietal region of head.
F
On dissection two wounds were found interconnected with
facture of skull bone into so many pieces and laceration
of brain tissue."
G PW-16 has further stated in his evidence that out of these
3 wounds, 2 were on the left side and one on the right side of
the body. In his cross examination, PW-16 has stated:
"34. The projectile may travel in the body even in standing
or sleeping position.
H
ANAND MOHAN v. STATE OF BIHAR 35
[A.K. PATNAIK, J.]
38. Injury No. II indicates that the patient may be able to A
move his face. From my postmortem report it appears that
only after causing injury No.II the other injury No.Ill was
caused. After sustaining injury No.Ill the one could not be
moved and as such injury No.1 might not have been
inflicted. On parity of logic vice versa is also correct. Thus B
injury No.(i) was caused before injury No.II (Volunteers that
instead of definite was or were, if they should be read may
and might)"
The evidence of PW-16 is clear that the projectile may
travel in the body even in standing or sleeping position. PW- C
16 has stated that injury No.I may have been caused and
thereafter injury No.II may have been caused. Moreover, injury
No. II indicates that the deceased may have been able to move
his face. He has also stated that from the postmortem report it
appears that only after causing injury No.II the other injury No.Ill D
may have been caused. Thus, the argument of Mr. Ranjeet
Kumar that after the injury No.II on his left cheek, the deceased
may have turned his face and thereafter injury No.Ill on the left
parietal region of his head may have been caused cannot be
rejected. We cannot, therefore, hold that the medical evidence E
is such as to entirely rule out the truth of the evidence of the
prosecution witnesses that the deceased was shot when he was
lying injured on the ground.
37. We may now deal with the contention of the defence
F
that the High Court did not take into consideration the evidence
of PW-17 and PW-21, who were the driver and the bodyguard
of the deceased respectively, and who did not support the
prosecution case. We have gone through the evidence of PW-
17 (driver) who has stated that the people participating in the G
procession surrounded the car of the deceased and were
shouting 'maro maro' and that they pulled out the deceased and
the bodyguard and then began to assault them, but he escaped
and hid behind the vehicle and after a gap of five to six minutes
- when he returned he found the procession was not there but
H
36 SUPREME COURT REPORTS [2012) 10 S.C.R.
A the police was present there with their vehicles and he saw the
deceased lying on the road in injured condition and the car of
the deceased was lying inverted and thereafter the deceased
was carried to the Hospital in the police vehicle and he also
went in the same vehicle to the Hospital and later on he came
B to know that the deceased was dead. W~ have also gone
through the evidence of PW-21 (bodyguard) who has deposed
that the crowd was shouting 'maro maro' and they beat him,
the driver as well as the deceased and turned the vehicle and
they sustained injuries and after some time the police came
C over there and the stampede started and police sent the
deceased and him to the Hospital and he came to know that
the deceased was dead. Both PW-17 and PW-21, therefore,
are silent with regard to exhortation by A-1, A-2, A-3 and A-4
to Bhutkun to shoot at the deceased. It appears that PW-17 and
PW-21 were not aware of any shooting incident at all and they
D were under the impression that the deceased had been injured
by the assault of the mob after he was pulled out from the car.
PW-17 and PW-21, in our considered opinion, do not seem to
know what exactly happened after they were pulled out from the
car and beaten up by the mob. On the basis of their evidence,
E the Court cannot discard the evidence of ten other witnesses
that the deceased was shot by Bhutkun with the revolver on the
exhortation of A-1 when the medical evidence established that
the cause of death of the deceased was on account of the bullet
injuries on the deceased and not the assault by the mob.
F Moreover, PW-17 and PW-21 may not have supported the
prosecution case but their evidence also does not belie the
prosecution case that the deceased was shot by Bhutkun on
the exhortation by A-1 .
G 38. We now come to the submission of Mr. Jethmalani that
as A-1 was sitting in a Contessa car which was in the front of
the procession and as the killing of the deceased took place
in the middle of the procession, the evidence of the eye-
witnesses should be discarded as not probable. The
H prosecution has been able to adduce evidence through its
ANAND MOHAN v. STATE OF BIHAR 37
[A.K. PATNAIK, J.]
witnesses that at the time of sho.oting of the deceased, A-1 was A
at the spot and was exhorting Bhutkun Shukla to shoot at the
deceased. If A-1 wanted the Court to believe that at the time
of the incident he was in the Contessa car in the front of the
procession and not at the spot, he should have taken this
defence in his statement under Section 313 Cr.P.C. and also B
produced reliable evidence in support of this defence. Section
103 of the Indian Evidence Act, 1872 provides that the burden
of proof as to any particular fact lies on that person who wishes
the Court to believe in its existence, unless it is provided by
any law that the proof of that fact shall lie on any particular c
person. The prosecution by leading evidence through its several
witn~sses has established that A-1 was at the place of
occurrence and had exhorted Bhutkun Shukla to shoot at the
deceased. If A-1 wanted the Court to reject this prosecution
version as not probable, burden was on him to lead evidence
0
that he was not at the spot and did not exhort Bhutkun Shukla
to shoot at the deceased. Since he has not discharged this
burden, the High Court was right in holding that A-1 was guilty
of the offence under Section 302/109 IPC.
39. Regarding the sentence, the High Court has held that E
though the deceased was a District Magistrate, he was killed
in another district as an occupant of a car by chance on account
of mob fury and exhortation by A-1 and firing by Bhutkun Shukla
and as A-1 was not the assailant himself, death sentence would
not be the appropriate sentence. We agree with this view of F
the High Court and we are of the view that this was not one of
those rarest of rare cases where the High Court should have
confirmed the death sentence on A-1. In our considered opinion,
A-1 was liable for rigorous imprisonment for life.
G
40. In the result, we do not find any merit in either the appeal
of A-1 or the appeals of the State and we accordingly dismiss
all the criminal appeals.
K.K.T. Appeals dismissed.
H
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