Holding

The High Court’s transfer of the case under its superintendence power under Article 227 was lawful, the trial did not constitute an impermissible de novo trial, and the convictions under Section 149 IPC were upheld.

Summary

The case involved three Yadav appellants convicted for rioting, arson and murder during communal violence in Bihar in 1985. The appellants challenged the High Court’s transfer of the trial from the 10th to the 5th Sessions Court, arguing that the transfer was beyond its jurisdiction and amounted to a de novo trial violating Section 326 of the CrPC. They also contested the admissibility of a police witness’s testimony that was refreshed from a statement recorded under Section 161, and questioned whether the prosecution had proved the requisite overt acts for conviction under Section 149 IPC. The Supreme Court held that the High Court exercised its plenary administrative power under Article 227 to transfer the case for administrative exigency, and that the trial court’s reliance on previously examined witnesses did not constitute an illegal fresh trial. The Court further ruled that the witness’s statement could be used as corroborative evidence and that the evidence established the appellants’ participation in the unlawful assembly, satisfying the requirements of Section 149 IPC. Consequently, the convictions and sentences were upheld.

Issues considered

The validity of the High Court’s transfer of a pending trial from one Sessions Court to another under Article 227 versus the procedural requirements of Section 407 CrPC.
Whether the transfer and framing of fresh charges amounted to a de novo trial in violation of Section 326 CrPC.
The admissibility of a police witness’s testimony refreshed from a statement recorded under Section 161 CrPC and its impact under Section 162 CrPC.
The necessity of proving an overt act for conviction under Section 149 IPC and whether the evidence satisfied that requirement.
The scope of Supreme Court interference under Article 136 with the findings of fact recorded by lower courts.

Legislation cited

Arms Acts. Section 27
Code of Criminal Procedure, 1973s. Section 194, s. Section 216, s. Section 217, s. Section 299, s. Section 326, s. Section 350, s. Section 397(2), s. Section 407, s. Section 465
Constitution of Indias. Article 136, s. Article 227
Indian Evidence Act, 1872s. Section 157, s. Section 162
Indian Penal Code, 1860s. Section 1208, s. Section 120B, s. Section 147, s. Section 148, s. Section 149, s. Section 201, s. Section 302, s. Section 307, s. Section 364, s. Section 380, s. Section 436

Subjects

Article 227High Court superintendencetransfer of trialadministrative powerde novo trialSection 326 CrPCSection 299 CrPCSection 149 IPCunlawful assemblyevidence admissibilitySection 162 CrPCSection 161 CrPCSection 157 Evidence ActArticle 136jurisdictioncommon objecteye-witness testimonyFIR vs statement

Judgment

A RANBIR YADAV
v.
STATE OF BIHAR '-'
MARCH 21, 1995

B [AS. ANAND AND M.K. MUKHERJEE, JJ.]

Constitution of India-Article 227-l'ower of superintendence of High
Court-Scope-Trial of a large number of persons-Transfer of case to bigger ,,..-
Court with better an-angement-Whether High Court justified in. exercising its "\
c plenary administrative powe~eld, yes.

Article 136-'-SCope of interference with concurrent findings of facts.

Criminal Procedure Code, 1973-Secs. 326, 350, 216, 217-Transfer of
r-
case-Right of accused to claim a de novo trial-Transferee Court can
D exercise its judicial discretion only for further examination of a witness already .
examined and not for fresh examination of witnesses for a fresh trial.

E
Secs. 154, 161, 162-FIR-Two incidents of rioting and murder-lnves-
ligation over the incidents started in the same night-Report lodged on the
following morning could only be treated as a statement recorded in accord-
-·
ance with Sec. 161(3) of the Code and not as FIR-Admissibility of evidence
of the witness.

Indian Penal Code, 1860-Sections 148, 302/149, 436/149, 380 and
201/149-0ffences of loo~ arson and murder-Eye witnesses-A mob of
F 500/600 people, residents of different villages came to and attacked the
neighbouring village to exterminate the Bind Community-Three appellants
belonging to Yadav community came on horse back armed with fire arms and
led the mob, chased villagers and committed murders-Their conviction for
offences upheld.
G According to the prosecution due to some land dispute between some
vill~ges, about 30/40 members or the Yadav community, all resident of a
neighbouring village came to the village and started abusing the Binds,
firing from guns injuring some and went back holding out threat that all
the members of the Bind community would be killed; that on the same day
' -

H at about 1 P.M. a mob or about 600 Yadavs armed with weapons like guns,
826
RANBIR YADAVv. STATE 827
pistol, bhalas and lathis came • some of them on horse back • and attacked A
Mind Tolis of the village; that the mob res~rted to looting cash, cloth, grain,
> ornament and cattle and then setting to fire the houses of the inhabitants
there, some of the members of the mob chased the villagers who were trying
to Dee away towards the River and when these persons tried to escape on
boats the miscreants fired at them, brought them down from the boats and
then dragged them to the river and threw them there; that the three
B
appellants had come no horse back with guns, led the mob and were active
participants in the ravage; that on getting information a police posse went
T there the same night and PW96, an Inspector of Police, took up investiga-
I tion of the cases registered over the first incident and on the following
morning he also took up investigation of the second incident. The dead c
-- bodies of six out of the nine killed were recovered. Over the first incident,
a charge sheet was submitted against six accused persons u/ss. 147, 148
and 149/307 IPC and Section 27 of the Arms Act. In respect of the second
incident also two cases were registered, one in the same night u/ss.148,
149/302, 201, 436 and 320 IPC and the other on the following morning u/ss.
D
302/149, 307, 380, 436, 147, 148, 149, 201 and 1208 IPC and Section 27 of
the Arms Act. These two cases ended in a charge sheet against 152 accused
persons, including the three appellants and some absconders.

The cases committed to the Court of Sessions were transferred to
the 10th Court for trial and after amalgamation of two cases charges were E
framed against the six accused. Both the cases were then transferred to
the 5th Court of Addi. Sessions Judge of trial as a petition was filed by
some of the accused persons stating that when the Sessions Trial was taken
up by the 10th Court for hearing on the question of framing of charges all
the accused could not be accommodated in the dock meant for them as a F
result of which some of them had to remain outside and that one of the
accused lying seriously ill, brought on a cot had to be kept on the verandah
of the court room and that the court was so crowded that clerks of the
lawyers were not allowed to enter and in fact the lawyers themselves had
to carry the records. While disposing of this petition the 5th Court
recorded an order that to avoid all sorts of infirmities and irregularities G
the charges against all the accused including two of the absonding accused
) who had surrendered in the meantime would be framed afresh. Pursuant
to this order now charges u/ss. 364/149 and 201/149 IPC were added and
three absconding accused persons who had surrendered since the charges
were framed by the previous Court, were also arrayed in the charges. All H
828 SUPREME COURT REPORTS [1995) 2 S.C.R.

A the four witnesses who had earlier been examined, cross examined and
then discharged by the 10th Court for further cross examination, were
directed to be examined afresh considering that they were not examined in
the presence of all the 140 accused as three of them had surrendered after
their evidence was recorded. A revisional application filed against this
order was disposed of by the High Court with a direction that in case the
B defence applied to cross examine those four witnesses, the Court may order
for their cross examination and in case the Court feels that any further
evidence is essential for a just decision of the case, it may call them to the
court. On conclusion of the trial the Court acquitted 78 of them and
convicted and sentenced the other 60 in .respect of all or some of the
C charges. Each of the three appellants was convicted u/Ss 120-B, 148,
302/149, 436/149, 380 and 201-149 IPC. On appeal, the High Court affirmed
convictions of three appellants except for the offences u/ss 1208 IPC.
Hence these appeals.

D The appellants contended that the trial which took place in the 5th
Court was wholly without jurisdiction as the High Court had no power to
transfer the case from the 10th Court to the 5th Court and that too by an
· administrative order at a stage when the trial had already commenced;
that administrative power could not be exercised at a stage when judicial
power was not only available and operational but was equally effective and
E efficacious; that having regard to the facts that the 5th Court had by its
order decided to frame charges afresh against the accused persons, includ-
ing those three who were later put on trial after their surrender and that
pursuant thereto it framed charges and proceeded with the trial, the
earlier trial conducted by the 10th Court must be held to have come to an
F end, and the evidence of the four witnesses who were examined therein
could not be relied upon by the Sth Court for recording the impugned
order of conviction and sentence; that once the trial Court had exercised
its judicial discretion to hold a fresh trial, the High Court's interference
with the same was not only impermissible in view of the embargo of Section
397 (2) of the Code but was also unsustainable on merits; that the evidence
G on record did not justify their convictions and that both the Courts below
ought not to have taken into consideration and relied upon the evidence
of P.C.P.W.I. as the same was inadmissible considering that the witness
was permitted to refresh his memory from the report he lodged with the
police in the morning which was treated as the F.I.R. of the second incident
H even though it could not be so treated as PW 96 had started investigation
RANBIR YADAVv. STATE 829
into the same the previous night and that the prosecution case so far as A
, it related to the attack on the villagers when they were trying to flee away
on a boat was absolutely untrue for, even though the prosecution witnesses
claimed that after capturing the boat and bringing the occupants down,
the .rioters fired at them their dead bodies were recovered from the River
though those would have been found in Tisrasia Dhab itself and that the
evidence of the eye witnesses who testified about the second incident was
B
highly di~crepant and untrustworthy and, therefore, it should .not have
been relied upon.
~

·~· Dismissing the appeals, this Court
c
HELD: 1.1 Under Article 227 of the Constitution of India every High
-r Court has superintendence over all Courts and Tribunals throughout the
territories in relation to which it exercises jurisdiction and its trite that
this power of superintendence entitles the High Court to pass orders for
administrative exigency and expediency. In the instant case the High Court D
had exercised the power of transfer in the context of the petition filed by
some of the accused from jail complaining that they could not be accom·
modated in the Court room as a result of which some of them had to
remain outside. The other grievance raised was that the Court was so
crowded that even clerks of the lawyers were not being allowed to enter the
Court room to carry the briefs. Such a situation was obviously created by E
the trial of a large number of persons. If in the context of the above facts,
the High Court exercised its plenary administrative power to transfer the
case to the 5th Court, which had a bigger and better arrangement to
accommodate the accused, lawyers and others connected with the trial no
exception could be taken to the same, particularly by those at whose F
instance and for whose benefit the power was exercised. So long as power
can be and is exercised purely for administrative exigency without imping·
ing upon and prejudicially affecting the rights or interests of the parties
to any judicial proceeding there is no reason to hold thiit administrative
powers must yield place to judicial powers simply be<:ause in a given
circumstance they co-exist. On the contrary, the present case illustrates G
how exerc~e of administrative powers were more expedient, effective and
)!
efficacious If the High Court had intended to exercise its judicial powers
of transfer invoking Section 407 Cr.P.C. it would have necessitated com·
pliance with all the procedural formalities thereof, besides proViding ade·
quate opportunities to the parties of a proper hearing which, resultantly, H
830 SUPREME COURT REPORTS [1995] 2 S.C.R.

A would have not only delayed the trial but further incarceration of some of
the accused. It is obvious therefore that by invoking its power of superin-
tendence, instead of judicial powers, the High Court not only redressed the
grievances of the accused and other connected with the trial but did it with
utmost dispatch. [838-G-H, 839-A-B-D-F]

B
1.2 The primary reasons, which weighed with the Sth Court for
framing charges afresh and directing the prosecution to furnish the list of
witnesses to be examined on its behalf were, that three accused had
surrendere~ ~ner charges had been framed and four witnesses for the
prosecutionhad been examined-in-chief and three of them discharged after
·c cross examination and that the accused persons had been prejudiced in
their defence as, instead of a lawyer of their choice a lawyer from the
defence panel had appeared on their behalf on the first day of the trial.
Therefore as against the present appellants and the other accused who
were being tried with them the question of framing charges afresh by the
D Sth Court did not and could not arise and, in fact, only additional charges
were framed against them. The direction of the 5th Court regarding
framing of charges afresh has therefore to be read and construed with
reference to those three who surrendered later. So far as those three
accused ai'e concerned, admittedly they were not there when the trial
commenced in the 10th Court and, therefore, the Sth Court was not only
E legally bound to frame charges against them, but also to record the
evidence of the four witnesses already examined afresh if the prosecution
intended to use the same against them for, save in exceptional cases as
provided in Section 299 and other sections of the Code, all evidence has to
be taken in the presence of the accused, or when personal presence is
F dispensed with, in the presence of his lawyer in view of Section 273 of the
Code. Those three accused therefore might have legitimately and success- (-
fully assailed the reception and, for that matter, reliance upon the evidence
of those four witnesses against them. However, the three appellants could
not be allowed to raise any similar grievance for those witnesses were
examined in their presence and cross-examined at length by the lawyers of
G their choice extensively and exhaustively and therefore no prejudice could
be said to have been caused to them. After an alteration or addition of the
charge the interest of the prosecution and the accused had to be ~ -
safeguarded by permitting them to further examine or cross examine the
witness already examined, as the case may be, and by affording them an
H opportunity to call other witnesses. Discretion has been given to the Court
r

,.,, RANBIR YADAVv. STATE 831

to direct a new trial after addition or alteration of any charge, but it dat:s A
not mean that every sqch addition or alteration in the charge which has
been read over and eiplained to the accused would lead to inevitable
inference that the Court had directed a new trial for them. Unless the
Court passes a specific order and directs a new trial it cannot be presumed
that a new trial has co~menced only because an alteration or addition to
a charge which has been read over and explained to the accused has been
B
made. The order dated; April 30, 1987 shows that while directing the
prosecution to examine t}te 4 witnesses afresh the 5th Court adjourned th~
case for further trial anrJ did not direct fresh trial. This apart, any such
direction given by the court has to be judged on the touchstone of prejudice
to the accused or the pro~ecution. (845-E-H, 846-A-C, 847-D-F] c
_,,.,,,-
2. Sitting in the ju~diction under Article 136 of the Constitution o(
India this Court will not be justified in re- opening the. whole case and
disturbing concurrent findings of fact recorded on a pure appreciation of
evidence unless it was held that those findings have been recorded in utter D
disregard of mandatory ):)rovisions of law resulting in serious prejudice
and substantial injustice to the accused. The other area justifying inter·
ference would be where on the proved facts wrong inference of law has been.
drawn or the conclusions on facts are manifestly perverse and based on
no evidence. A concurrent finding has been recorded by the Courts below
to the effect that the six Yadavs had come to the village armed with various E
weapons including firearms, committed rioting, attempted to commit mur·
der of two by firing and causing injuries to them and then went away
holding out open threat to the villagers that the member of the Bind
community would be eliminated. (851-G-H, 852-G-H]
F
3. The Courts below were not justified in treating Ext. 10/1 as an
F.I.R. Undisputediy P.W. 96 had reached the village in the night of
11.11.1985 to investigate into the two cases registered over the incident that
took place in the morning. He deposed that after reaching the village at
10.30 p.m. he got information abut the second incident also and in connec-
tion therewith he had talked to several persons. He, however, stated that G
he did not record the statements of the persons to whom he talked to. In
)
cross examination it was elicited from him that on the very night he learnt
that houses of some people had been looted and set on fire, some people
had been murdered and that some villagers were untraceable. While being
further cross examined he volunteered that he had started the investiga· H
r

832 SUPREME COURT REPORTS (1995) 2 S.C.R.

A tion of the case registered over the second incident in the same night. In
the face of such admissions of P.W.96 and the various steps of investiga-
tion he took in connection with the second incident there cannot be any
escape from the conclusion that the report lodged by P.C.P.W.1 on the
following morning could only be treated as a statement recorded in accord-
B ance with Section 161(3) of the Code and not as an F.I.R. After P.C.P.W.1
testified about the incident prosecution got the statement of P.C.P.W. 1
emibited as Ext. 10/1 as according to it Ext. 10/1 was the F.I.R. Such a
course was legally permissible to the prosecution to corroborate the wit-
ness in view of Section 157 of the Evidence Act. In a given case - as in the
present one - the court may on the basis of subsequent materials hold that
C th~ statement so recorded could not be treated as the F.I.R. and exclude
the same from its· consideration as a piec~ of corroborative evidence In
view of Section 162 of the Code but then on that score alone the evidence
of a witness cannot be held to be inadmissible. (855-A-D, 856-G-H]

4. The find of dead bodies in the River, does not contradict the case
D of the prosecution that those two persons were shot at Tisrasia Dhab as
there was evidence on reco~d that all the 10 persons including those who
were shot at were taken to the bank of the river, there being signs of
dragging between the two places. (857-EJ

E 5. The evidence of the host of eye-witness - which both the Courts
below considered and accepted - conclusively proved that all the three
appellants shared the common object of the unlawful assembly to commit
the offences of loot, arson and murder and causing the disappearance of
the evidence of murder and that in furtherance of those common objects
F some members of that unlawful assembly committed those offences for
which the appellants were also liable to the convicted under Section 149
IPC. Having shifted their evidence and considered the same in the back-
drop of the events preceding the incident that took place in the afternoon
of 11.11.1985 the following conclusions were inevitable: (i) a mob of 500/600
people, most of whom belonged to Yadav community and were residents
G of different villages came to and attacked the neighbouring village to
exterminate the Bind community: (ii) the three appellants who belonged
to Yadav community and were residents of three separate adjoining vil-
lages came on horse back armed with fire arms, and led the mob along
with some others: and (iii) the appellants were also amongst the rioters
H who chased the villages and committed the murders at Tisrasia Dhab and
RANBIR Y ADAV v. STATE [M.K. MUKHERJEE, J.) 833

the bank of the River. Therefore, the impugned convictions of the appel- A
lants must be upheld. (862-D-H]

A.R. A11t1tlay v. R.S. Nayak a11d A11other, (1988) 2 SCC 602;Kehar
Si11gh v. State, (1988) 3 SCC 609; Payare Lal v. State of Punjab, (1962) 3
SCR 328 and Zahirnddin v. Emperor, AIR (1947) P.C. 75, distinguished.
B
Pulukuri Kotayya v. King Emperor, AIR (1947) PC 67 and Shivaji v.
State of Maharashtra, AIR (1973) S.C. 2622, relied on.

Bajwa and Ors. v. State of U.P., (1973) 3 S.C.R. 571, referred.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal C
Nos. 34, 35 & 36 of 1992.

From the Judgment aild Order dt. 23.5.91 of the High Court of
Judicature at Patna in Criminal Appeal Nos. 183, 166 & 165 of 1989
respectively.
D
Ram Jethmalani, Ms. Lata Krishnamurti and~h Kumar Yadav
for the Appellants.

M.L. Agrawal, S.K. Patri and B.B. Singh for the Respondents.

The Judgment of the Court was delivered by E
M.K. MUKHERJEE, J.

These three appeals stem from two related incidents that took place
on November 11, 1985 in village Laxmipur Taufir Bind Toli and 'its neigh-
( bourhood within the jurisdiction of Munger Muffasil Police Station in the F
State of Bihar. Before detailing the incidents and discussing the evidence
on record relating thereto it will be necessary to narrate the sequence of
events leading to the trial to appreciate the contentions raised on behalf of
the appellants regarding validity of the trial as well the admission of
evidence of some of the prosecution witnesses therein. G
Over the first incident that took place at or about 6 A.M. two cases
were registered being Munger Muffasil P.S. Case Nos. 302 and 303of1985
and after they were jointly investigated, a charge-sheet was submitted
against six accused persons under sections 147, 148 and 149/307 IPC and
section 27 of the Arms Act. In respect of the second incident, which started H
834 SUPREME COURT REPORTS (1995) 2 S.C.R.

A at mid day and continued till the evening, also two cases were registered:
one in the same night on the statement of one Janki Bind being case No.
304of1985 under sections 148, 149/302, 201, 436 and 320 IPC and the other
on the following morning on the statement of one Mahender Singh being
case No. 305 of 1985 under sections 302/149, 307, 380, 436, 147, 148, 149,
201 and 120B IPC and section 27 of the Arms Act. These two cases also
B after joint investigation ended in a charge-sheet against 152 accused per-
sons, including the three appellants herein and some absconders.

The case relating to the second incident was committed to the Court
of Session on January 28, 1986 and on receipt of the order of commitment
.C the learned Sessions Judge transferred it to the 10th Court of the Addi.
Sessions Judge (10th Court for short) for trial (Sessions Trial No. 10 of
1986). Thereafter on February 25, 1986 and 10th Court framed various
charged ·against the accused persons including charges under sections
302/149, 436/149, 120-B and 380/149 IPC and as they pleaded not guilty,
D proceeded to record evidence of the prosecution witnesses on and form
March 4, 1986. In the meantime the case relating to the first incident had
also been committed to the Court of session and transferred to the same
Court on March 3, 1986 for trial (Sessions Trial No. 83 of 1986).

On March 5, 1986, one of the absconding accused surrendered
E before the 10th Court and prayed for being tried along with the other
accused. The prayer was allowed and charges were framed against him in
both the cases. Thereafter, an application was moved on behalf of some of
the accused persons for amalgamation of the two trials which was allowed
by the 10th Court by its order dated March 7, 1986. After such amalgama-
F tion the Court framed charges' ooder sections 148, 307/149 and 307 IPC
against the six accused of Sessions Trial No. 83 of 1986 and commenced
the trial. It also continued with the trial of 140 accused persons of Sessions
Trial No. 10 of 1986, including the three appellants, and the six accused
who were arraigned in the order trial also. While the trials were being
proceeded with in the 10th Court the High Court passed an order on or
G about April 1986 transferring both the cases to the 5th Court of the Addi.
Sessions Judge, Munger (5th Court for short) for trial.

It appear that after the records of the two Sessions Trials were sent
to the 5th Court pursuant to the order of the High Court, its attention was
H drawn on April 16, 1986 to a petition sent by some of the accused persons
..(
'
RANBIR Y ADAV v. STATE [M.K. MUKHERJEE, J.) 835
I

form jail. In that petition it was stated that on February 25, 1986 when the A
,. Sessions Trial No. 10 of 1986 was taken up for nearing on the question of
framing of charges all the accused could not be accommodated in the dock
meant for them as a result of which some of them had to remain outside,
It was further stated therein that one of the accused, namely, Bansraj
Yadav who was lying seriously ill and was brought on a cot had to be kept
on the verandah of the court-room and that the court was so crowded that
B
clerks of the leaned lawyers were not allowed to enter and in fact the
~ lawyers themselves had to carry the records. In the petition it was also
~- alleged that the trial Court (the 10th Court was then in seisin of the trials)
did not pay any heed to their grievances.
c
-·-r While disposing of the above petition the 5th Court recorded an
order to the effect that to avoid all sorts of infirmities and irregularities
and for redressal of the grievance of the accused in general the charges
against all the accused including Lakhan Yadav and Nageshwar Yadav
(two of the absconding accused who had surrendered in the meantime) D
would be framed afresh. The order further reads as follows:-

".... .I must point it out that the learned Special P.P. has sub-
mitted that the charges were explained to the accused persons. It
is worth noting that if the said petition is allowed to remain E
undisposed of, in future there may arise compli~tions, particularly
at the end of trial and this way without prejudice to the accused
persons it is just proper, regular and expedient to explain the
charges afresh to all the accused persons under the peculiar
circumstances; keeping in view that there was protest with regard F
to the appointment of a lawyer from the defence panel by the
accused on the very first day of taking of the trial and keeping in
view that the accused persons did not repose confidence in the
defence lawyer appointed by the previous court and further keep-
ing in view that they re-iterated that they had been prejudiced due
to the absence of their lawyers whom they had appointed. The G
) misgivings on the part of the accused may not be sound but the
court will have to adopt a procedure warranted by law so that
neither side feel any sort of prejudice against the court. The
confidence of both side in the working of a court is the paramount
element for the fair trial of any case. H
836 SUPREME COURT REPORTS (1995] 2 S.C.R.
/
A This court has tried to remove all sorts of infirmities and
irregularities, if any, with regard to the procedure adopted for the
trial of this important case. This order will not prejudice either
side. To 27.4.86 for framing charges afresh against the accused
persons including those who have been prepared to be put on trial.
The learned Spl. P.P. is directed to furnish the list of the witnesses
B who may be examined on 30.4.86 and on allottee working days in
May'86, send a production warrant for production of accused
Nageshwar Yadav and Lakhan Yadav on 26.4.86 in the Court.

It appears that pursuant to the above order charges were framed
C afresh in as much as (i) new charges under section 364 read with 149 and
201 read with 149 IPC were added; (ii) the three absconding accused
persons who had surrendered since the charges were framed by the pre-
vious Court, were also arrayed in the charges and (iii) all the charges were
explained to the accused afresh.
D
Thereafter, while the trial Court was exam1mng the witnesses
produced by the prosecution an application was filed on its behalf on April
24, 1987 stating that P.W.1 Mahendra Singh, P.W. 3 Nagendra Singh, P.W.
4 Ram Chandra Singh were discharged after their examination and cross-
examination by and on behalf of 137 accused and the cross-examination of
E P.W. 2 Sukhdeo Singh was deferred at the instance of one of the learned
advocate appearing on behalf of some of the accused. It was further stated
therein that as the charges were recast in the transferee Court the prosecu-
tion was willing to produce those witnesses who had earlier been examined,
cross-examined and then discharged by the 10th Court for further cross
F examination. In their rejoinder to the application the accused persons
stated that the said four witnesses who were examined in the previous
Court should be again examined-in-chief in presence of all the accused and
then only the defence would cross-examine them. While disposing of the
application the 5th Court observed that all the above four witnesses were
not examined in presence of all the 140 accused - as three of them had
G surrendered after their evidence was recorded - they might be prejudiced.
The 5th Court therefore, by its order dated April 30, 1987, directed the
prosecution to examine all those four witnesses afresh.

Aggrieved by the above order the State filed a revisional application
H \whic~ was disposed of by the High Court with the following order:-
RANBIR YADAV v. STATE [M.K. MUKHERJEE, J.) 837

"Without going into the merits, as to whether re-examination of A
the four witnesses named in the impugned order is in any way
essential for just decisions of the case or not, since the stand taken
before this Court on behalf of the prosecution is that it does not
propose to re-examine them in the trial, it is enough to dispose of
this application with a direction that in case the defence applied B
to cross-examine them, the Court may order for their cross-ex-
amination and in case the court feels that any further evidence is
essential for a just decision of the case, it may call them to the
Court

The question whether the evidence recorded by the predeces- C
sor incharge of the court of the 5th Addi. Sessions Judge, Munger,
of the four witnesses named in the impugned order can be looked
into and relied upon by either party or not shall remain op~n for
consideration of the hearing of the trial. The leaned Sessions Judge
shall proceed with the trial without waiting for the prosecution to D
produce them for examination-in-chief.W

In course of the trial that followed in accordance with the above
directions of the High Court two of the accused died and, as such, the trial
continued with 138 accused. On conclusion of the trial the Court, aequitted
78 of them and convicted and sentenced the other 60 in respect of all or E
some of the charges levelled against them. Five of the convicts were
sentenced to death. Each of the three appellants before us was convicted
under Sectio~ 120-B, 148, 302/149, 436/145, 380 and 201/149 IPC and
sentenced to various terms of imprisonment including for life. Agains~ their
convictions and sentences all the convicts filed separate sets of appeal and F
the State of Bihar, in its turn, filed an appeal against the acquittal of others.
Along with the appeals preferred by the convicts and the Stat~ the High
Court heard the reference made by the trial Court under Section 366 of
the Code of Criminal Procedure, 1973 ('Code' for short) and disposed of
all of them through a common judgment by rejecting the reference, dis-
missing the Government appeal, allowing the appeal of one of the convicts G
and dismissing the appeal of all other convicts with modification in convic-
tions and sentences of some of them. As regards the three appellants
before us, namely, Ranbir Yadav, Sukhdeo Yadav and Pandav Yadav, the
High Court affirmed their convictions and sentences except for the offen-
ces under Section 120-B IPC. They alone have moved this Court through . H
r

838 SUPREME COURT REPORTS (1995) 2 S.C.R.

A these three appeals after obtaining special leave.

Mr. J ethmalani, the learned counsel appearing for all the three
appellants first contended that the trial which took place in the 5th Court
was wholly without jurisdiction and consequently the convictions and sen-
tences recorded by that Court were null and void. In elaborating his
B contention Mr. Jethmalani submitted that the High Court had no power to
transfer the case from the 10th Court to the 5th Court and that too by an
administrative order at a stage when, admittedly, the trial had already
commenced. Mr. Jethmalani drew our attention to Section 194 of the Code
to contend that a plain reading of the Section woul~ unmistakably show
C that the power of the High Court to direct a particrilar Court to try a case
could be exercised only at the initial stage where trial was yet to commence
and not thereafter. He next contended that the only other section which
empowered the High Court to transfer a. case under the Code was Section
407 but such a power could be exercised judicially only after complying
D with the requirements thereof and hearing the parties. As, admittedly, the
High Court did riot exercise such judicial power, the order of transfer
whereby the 5th Court acquired jurisdiction, must be held to be void and
ineffective. He lastly epntended that such grave illegality and want of
jurisdiction were not curable under Section 465 of the Code. In support of
this contention he relied upon the majority judgment of this Court in A.R:
E Antulay v. R.S. Nayak & Another, (1988) 2 sec 602. ·

Before considering the above contentions of Mr. Jethmalani, we may
meh.tion that in spite of sufficient opportunities given, the order of transfer
passed by the High Court was not produced before .us. Needless to say,
F had it been produced we would have exactly known the facts and cir-
cumstances which promoted the High Court to pass that order and clearly
appended the source of power. However, from the material on record
which we have already detailed, it appears that the order was passed by ·
the High Court in the administrative jurisdiction. Under Article 227 of the
Constitution of India every High Court has superintendence over all Courts
G and Tribunals throughout the territories in relation to which it exercises
jurisdiction and its trite that this power of superintendence entitles the
High Court to pass orders for administrative exigency and expediency. In
the instant case it appear that the High Court had exercised the power of
transfer in the context of the petition filed by some of the accused from
H jail complaining that they· could not be accommodates in the Court room
RANBIR YADAVv.STATE(M.K.MUKHERJEE,J.) 839

as a result of which some of them had to remain outside. It further appears A
that the -Other grievance raised was that the Court was so crowded that
even clerks of the lawyers were not being allowed to enter the C.ourt roq_m
to carry the briefs. Such a situation was obviously c.reated by the trial of a
large number of persons. If in the context of the above facts, the High
Court exercised its plenary administrative power to transfer the case to the B
5th Court, which we assume had a bigger and better arrangement to
accomm~te the accused, lawyers and other connected with. the trial no
exception can be taken to the same, particularly by those at whose instance
and for whose benefit the power was exercised. Mr. Jethmalani, however,
contended that administrative power could not be exercised at a stage
when judicial power was not only available and operational but was equally C
effective and efficacious. According to Mr. Jcthmalani, if the former was
not contained the latter would be nugatory.

We arc unable to share the above view of Mr. Jethmalani. So long
as power can be and is exercised purely for administrative exigency without D
impinging upon an prejudicially aff~ the rights or interests of the
parties to any judicial proceeding we do not find any reason to hold that
administrative powers must yield place to judicial powers simply because
in a given circumstance they co-exist. On the contrary, the present case
illustrates how exerCise of administrative powers were more expedient,
efJective and efficacious. If the High Court had intended to exercise its E
judicial power of transfer invoking Section 407 of the Code it would have
necessitated compliance with all the procedural formalities thereof, besides
.... providing adequate opportunity to the parties of a proper hearing which,
resultantly, would have not only delayed the trial but further incarceration
of some of the accused, it is obvious, therefore, that by invoking its power F
of superintendence,, inst~ad of judicial powers, the· High Court not only
redressed the grievan~s of the accused and other ~ected with the trial
but did it with utmost dispatch. ·

Coming now to A.R. Antulay's case. (supra) we
find that the prin-
ciples of law laid down in the majority judgment, to w\Uch Mr. Jethmalani G
drew our attention have no manner of application here.in. There questions
arose as to whether (i) the High Court could tr~er a case triable
according to Criminal Law Amendment Act, 1952 {'1952Act' for short) by
a Special Court constituted thereunder to another Court, which was not a
Special Co~t and (ii) the earlier order of the Supreme Court trabsferring · H
'/
/
T

840 SUPREME COURT REPORTS [1995) 2 S.C.R.

A the case pending before the Special Court to the High Court was valid and
proper. In answering both the questions in the negative the learned Judges,
expressing the majority view, observed that (i) Section 7(i) of the 1952 Act
created a condition which was sine qua 11011 for the trial of offences under
Section 6(i) of the said Act. The condition was that 11otwithstandi11g a11y-
B thing contained in the Code of Criminal Procedure or any other law the said
offence shall be triable by ·\Special Judges only. By express terms therefore
it took away the right of transfer of cases contained in the Code to any
· other Court which was not a Special Court and this was notwithstanding
an¥thing contained in Sections 406 and 407 of the Code and (ii) the earlier
oi~er of the ·Supereme Court tansferring the case to the High Court was
C not authorised by law, namely, Section 7(i) of the 1952 Act and the
Supreme Court, by its direction could not confer jurisdiction on the High
Court of Bombay to try any case for which it did not possess such
jurisdiction under the scheme of the 1952 Act. As in the present case the
5th Court was competent under the Code to conduct the Sessions trial the
D order of transfer conferring jurisdiction on that Court and the trial that
followed cannot be said to be bad in law.

Since we have found that the order of transfer was made~ High
Court in exercise of its administrative powers, which was available to the
High Court under Article 227 of the Constitution of India the question
-
E raised by Mr. Jethmalani relating to the competence of the High Court to
exercise powers under Section 194 of the Code need not be answered.
Consequently, we need not look into the interpretation of Section 194 of
the .Code as given by the Court in Kehar Singh v. State, (1988) 3 SCC 609
'to'.'which our attention was drawn by Mr. Jethmalani. For the foregoing
F fiiscussioµ we find no merit in the first contention of Mr. Jethmalani.

Mr. Jethmalani next contended that having regard to the facts that
the 5th Court had, by its order dated April 16, 1986 decided to frame
charges afresh against the accused persons, including these three who were
later put on trial 'after their surrender and that pursuant thereto it framed
G charges and proceeded with the trial, the earlier trial conducted by the 10th
Court must be held to have come to an end, and that necessarily meant
that the evidence of the four witnesses, namely, Mahendra Singh, Nagender
Singh, Sukhdeo Singh and Ramchandra Singh who ~ere examined therein
could not be relied upon by the 5th Court for recording the impugned
H order of conviction and sentence. According to Mr. Jethmalani, the general
RANBIR YADAVv. STATE[M.K.MUKHERJEE,J.] 841

principle of law is that a Judge or Magistrate can decide a case only on A
the evidence recorded by him and the departure from this salutary prin-
ciple is permissible only in those cases where he decides to invoke Section
326 of the Code to exercise his judicial discretion to act on the evidence
recorded by his predecessor or partly record~d by his predecessor and
partly recorded by him. Mr. Jethmalani submitted that as in the instant
case the trial Court had exercised its discretion to hold a de novo trial B
reference to and reliance upon any evidence recorded in the earlier trial
were patently illegal and incompetent. In support of this contention Mr.
Jethmalani relied upon the decision of this Court in Payare Lal v. State of
( Punjab, [1962) 3 SCR 328. While on this point Mr. Jethmalani lastly
I contended that once the trial Court had exercised its judicial discretion to C
hold a fresh trial, the High Courts interference with the same was not only
impermissible in view of the embargo of Section 397(2) of the Code but
was also unsustainable of merits.

To appreciate the above contentions of Mr. Jethmalani it will be
imperative to first refer to the legislative history behind Section 326 of the D
Code. In the Code of 1898 the corresponding section was Section 350 and,

- so far as is material for our purposes, read as under:

(1) "Whenever any Magistrate, after having heard and recorded
the whole or any part of the evidence in an inquiry or a trial. ceases E
to exercise jurisdiction therein, and is succeeded by another
Magistrate who has and who exercises such jurisdiction, the
Magistrate so succeeding may act on the evidence so recorded by
his predecessor, or partly recorded by his predecessor and partly
recorded by himself or he may resummon the witnesses and recom-
- I mence the inquiry or trial. F
Provided as follows:-

(a) in any trial the accused may, when the second Magistrate
commences his proceedings, demand that the witness or any of G
them be resummoned and reheard:

(b) the High Court or, in cases tried by Magistrates subordinate
to the District Magistrate, the District Magistrate may, whether
there be an appeal or not, set aside any conviction passed on
evidence not wholly recorded by the Magistrate before whom the H
T

842 SUPR~ME COURT REPORTS (1995) 2 S.C.R.
< ~

A conviction was held, if such Court or District Magistrate is Of
opinion that the accused has been materially prejudiced thereby,
and may,order a new inquiry or trial."

(emphasis supplied)

B Iri interpreting the words "ceases to exercise jurisdiction therein" in the
!lbove quoted sub-section {1) some of the High Courts held that section
350 was intended to provide for a case where an inquiry or trial had
commenced before one incumbent of a particular post and that officer had
ceased to exercise jurisdiction in that post and was succeeded by another
C officer, whereas some other High Courts held that it referred to the inquiry
or trial and not to a particular post. Similarly the words "succeeded by
another Magistrate" were interpreted by some High Courts as importing
that the first Magistrate had left his post but other High Court_s held that
the word "succeeded" should not be construed in the narrower sense.
D Though, in our view, the word 'therein' appearing after the words "ceases
to exercise jurisdiction" in the context of the preceding words "in an inquiry
or trial" admits of no doubt that it refers to the inquiry or trial, the

E
legislature thought it necessary to add the following sub-section to Section
350(1) by Section 4 of Act XVIII of 1923, to put the issue beyond any pale
of controversy. -
"(3) When a case is transferred under the provisions of this ~e
from one Magistrate to another the former shall be deemed to
cease to exercise jurisdiction therein and to be succeeded by the
· latter within ·the meaning of sub-section (1)"
F
The next legislative change in Section 350 of the Code of 1898 was \ -
brought about by Act 26 of 1955. By that, in sub-section (1) of the Section
for the words "or he may re-summon the witnesses and recoinmence the
in1:piiry or trial" and the proviso, the following proviso was substituted:

G "Provided that if the succeeding Magistrate is of opinion that
further examination of any of the witnesses whose evidence has
alre'ady been recorded is necessary in the interests of justice, he
may resummon such witnesses and after such further examination,
cross-examination and re-examination, if any, as he may permit,
the witness shall be discharged. ·
RANBIR YADAVv. STATE(M.K.MUKHERJEE,J.) 843

When the Code of 1898 was repealed and replaced by the Code- A
Section 350 was renumbered as 326 without any textual change. However,
later on by the Criminal Procedure Code (Amendment) <Act, 1978 the
section was amended to vest the power and discretion exercisable_.lb;re-
under by a Magistrate to a Judge also. With the amendments detailed
above Section 326 read, at the time the trial in question foo~ place, and B
still reads as follows: - <"

"(1) Whenever any Judge or Magistrate after haring heard an<f 1

'-..,..
recorded the whole or any part of the evidence in an inquiry or a
trial, ceases to exercise jurisdiction therein and is succeeded by
/ another Judge or Magistrate who has and who exercises such C
l jurisdiction, the Judge or Magistrate so succeeding may act on the
evidence so recorded by his predecessor, or partly recorded by his
predecessor and partly recorded by himself;

Provided that if the succeeding Judge or Magistrate is of the
opinion that fu.rther eXaniinalion of any of the witnesses whose D
evidence has already been recorded is necessary in the interest of
justice, he may re-summon any such witness, and after such further
examination, cross-examination and re-examination, if any, as he
may permit, the witness shall be discharged.
E
(2) When a case is transferred under ·the provisions of this Code
from one Judge to another Judge or from one Magistrate to
another Magistrate, the former shall be deemed to cease to exer-
cise jurisdiction therein, and to be succeeded by the latter, within
the meaning of sub-section (1).
F
(3) xxxx .XXXX

(emphasis supplied)

From a comparative reading of sub-section {1) of Section 350 as it
stood prior to its amendment in 1955 and as it stands since then with the G
change in its numeral and inclusion of the word 'Judge' therein we find
that the discretion earlier given to the Presiding Officer of the .Court to act
on the evidence recorded by his predecessor or partly recorded by his
predecessor and partly recorded by him still remains. But so far as the
other option is concerned, while earlier he could resummon the witnesses H
844 SUPREME COURT REPORTS (1995) 2 S.C.R.

A and recommence ·the inquiry or trial - which necessarily meant a de novo
trial - be canndW only resummon a witness who has already been examined
for further_ exaniination and discharge him after such fwther examination,
cross-examination and re-examination, if any. It is evident therefore that
now the Magistrate or Judge can exercise his judicial di$cretion only for
B further examination of a witness already examined and not for fresh ex-
amination of witnesses for a fresh trial. Obviously, keeping jn view the
inevitable· frequent changes in the office of the Magistrate and Judge and
in order to provide a speedy trial the legislature has taken away the well
established right of the accused to claim a de nova trial and that of the
Court to so direct by express words of the airiending statute of 1955.
C Considered in that perspective we are of the opinion that the case of Payare
Lal (supra) which was decided when Section 350 was operating in the field
without its amendment of 1955 has no relevance here. In that case, Payare
Lal and another were prosecuted for offences under Section 5(2) of the
Prevention of Corruption Act, 1947. The 1952 Act which laid down the
D procedure for trial of such offences required the trial to be held by a
Special Judge appointed under it and in accordance with certain provisions
of the Code of 1898 as mentioned in Section 8 of 1952 Act. The Special
Judge accordingly, heard the. evidence but before he could deliver the
judgment he was transferred and was succeeded by another Special !udge.
E The latter did not recall the witnesses and did not hear the evidence over
again but proceeded with the trial without any objection from either side
-
from the stage at which his predecessor had left. The trial ultimately ended
in conviction and in appeal the Punjab High Court held that Section 350
of the Code of 1898 applied to the trial before a Special Judge ip view of
Section 8(1) of the 1952 Act and that, therefore, the succeeding Special
F Judge was entitled to proceed on the evidence recorded by his predecessor.
In setting aside the above finding of the Punjab High Court this Court held l -
that the 1952 Act did not intend that Section 350 of the Code of 1898 would
be availabl.e as a rule of procedure prescribed for the trial of warrant cases
to a Special judge as the Special Judge was not a Magistrate for the
G purpose of the Act nor did the Act require that he was deemed to be such.
This Court further held that the succeeding Special Judge, therefore, bad
no authority under the law to proceed with the trial of the case from the
·· ;tage at which his predecessor bad left it and that the conviction of the
appellants could not be supported as he (the succeeding Special Judge)
H has ilot heard the evidence himself. That necessarily meant, according to
RANBIR YADAVv. STATE(M.K.MUKHERJEE,J.) 845

this Court that the proceeding before the succeeding Special Judge was A

- clearly incompetent. In negativing the contention of the respondent-State
therein that the defect was a mere irregularity and the conviction of the
appellant could, if sustainable on evidence, be upheld under Section 537
of the Code of 1898 (which corresponds to Section 465 of the Code) this
Court held, relying upon the following observations of the Privy Council in B
Pulukuri Kotayya v. Kino Emperor, AIR (1947) PC 67:

"When a trial is conducted in a manner different from that
prescribed by the Code (as in N.A. Supramania Iyar's case, 1991
LR 28 I.A. 257), the trial is bad, and no question of curing an
irregularity arises; but if the trial is conducted substantially in the C
manner prescribed by the Code, but some irregularity occurs in
the course of such con~uct, the irregularity can be cured under
Section 537, and none the less so because the irregularity involves,
as must nearly always by the case, a breach of one or more of the
very comprehensive provisions of the Code."
D
that the case fell wihtin the first category mentioned by the Privy Council,
being one of want of competency and not of irregularity. With the above
findings the Court sent the case back for retrial.

Coming now to the case in hand we find from the order passed by
the 5th Court on April 16, 1986 that the primary reasons, which weighed E
with it for framing charges, afresh and directing the prosecution to furnish
the list of witnesses to be examined on its behalf were, that three accused
had surrendered after charges had been framed and fom witnesses for the
prosecution had been examined- in-chief and three of them discharged
after cross examination and that the accused persons had been prejudiced F
in their defence as, instead of a lawyer of their choice a lawyer from the
defence panel had appeared on their behalf on the first day of the trial.
Therefore as against the present appellants and the other accused who
were being tried with them the question of framing charges afresh by the
5th Court did noi and could not arise; and, in fact, as already noticed, only G
additional charges were framed against them. The direction of the 5th
Court regarding framing of charges afresh has therefore to be read and
construed with reference to those three who surrendered later.

So far as those three accused are concerned, admittedly they were
not there when the trial commenced in the 10th Court and, therefore, the. H
r
846 SUPREME COURT REPORTS · (1995) 2 s.9.R.

A 5th Court was not only legally bound to frame charges against them, but
also to record the evidence of the four witnesses already examined afresh
if the prosecution intended to use the same against them for, save in
exceptional cases as provided in Section 299 and other sections of the
Code, all evidence has to be taken in the presence of the accused, or when
B personal presence is dispensed with, in the presence of his lawyer in view
of Section 273 of the Code. Those three accused therefore nUght have
legitimately and successfully assailed the reception and, for that matter,
reliance upon the evidence of those four witnesses against them. However,
the ·thre_e appellants before us cannot be allowed to raise any similar
grievance for those witnesses were examined in their presence and cross-
C examined at length by the lawyers of their choice for days together. Then
again, as already noticed, after the additional charges were framed against
them and others under sections 364/149 and 201/149 IPC the prosecution
submitted a prayer that they were willing to produce those four witnesses
who had earlier been examined in the previous Court for further cross-ex-
D amination but then the appellants did not avail of the opportunity and
insisted upon their fresh examination which was allowed by the trial Court
but, as noticed earlier set aside by the High Court.. Even if we accept the
contention of Mr. J ethmalani that the order of the 5th Court directing fresh
examination of the prosecution witnesses was an interlocutory order ad
therefore the High Court could not have set aside the same in exercile of
E its rcvisional jurisdiction in view of the embargo of Section 397 (2) of the
Code and we should take no cognizance of the order of the High Court in
-
this regard, it would only mean that the four witnesses earlier examined by
the prosecution were not examined afresh. Even then, as regards-the three
appellants with whom only we arc concerned in this appeal. It docs not
F , alter the situation for - at the risk of repetition we reiterate - they were
examined in presence of the appellants and they were cross-examined
extensively and exhaustively and therefore no prejudice can be said to have .
been ~used to theni.

·.·' .:- The matter can be viewed from another angle also. Section 216 of
G the ~e empowers the Courno alter or add to any charge at any time
before the judgment is pronoUn.ced and provides that after such alteration •
or addition of the charge the Court is required to read and explain the
same to the. accused in accordance with sub-section (2) thereof. It is further
laid down wider sub-section (3) that if in the opinion of the Court the
H' alteration or a~ to a charge is not likely to prejudice the a~ in
-.. ~.
RANBIR YADAVv. STATE(M.K.MUKHERJEE,J.) 847

bis defence or the prosecutor in the conduct of the case the Court may in A
its discretion proceed with the trial immediately with the altered or added
charge. Sub-section (4) provides that if the alteration or addition is such
that the proceeding immediately with the trial is likely to prejudice the
accused or the prosecutor the Court may either direct a new trial or
adjourn the trial for such period as may be necessary. Section 217 of the B
Code provides that whenever a charge is altered or added to by the Court
after the commencement of the trial the prosecutor and the accused shall
be allowed to recall or to summon and examine with reference to such
"'I alteration or addition any witness who has already been examined unless
the Court for reasons to be recorded in writing considers that the desire C
( to recall or re-examine such witness was only for the purposes of vexation
or delay or defeating the ends of justice. Besides, it permits the prosecutor
----r and the accused to call any further witness whom the Court may think it
to be material. On a combined reading of the above two sections it is,
therefore, evident that after an alteration or addition of the charge the
interest of the prosecution and the accused bas to be safeguarded by D
permitting them to further examine or cross examine the witness already
examined, as the case may be, and by affording them an opportunity to call
other witnesses. It is undoubtedly true that discretion has been given to the
Court to direct a new trial after addition or alteration of any charge, but
it does not mean that every such· addition or alteration in the charge which E
has been read over and explained to the accused would lead to inevitable
inference that the Court has directed a new trial for them. It, therefore,
follows that unless the Court passes a specific order and directs a new trial
it cannot be presumed that a new trial has commenced only because an
alteration or addition to a charge which has been read over and explained F
to the accused has been made. Indeed the order dated April 30, 1987 shows
_ I that while directing the prosecution to examine the 4 witnesses afresh the
5th Court adjourned the case for further trial and did not direct fresh trial
This apart, any such direction given by the Court has to be judged on the
touchstone of prejudice to the accused or the prosecution. In the instant
case, as has already been noticed after the addition of charges the prosecu- G
tion expressly stated that they did not want to further examine the four
witnesses already examined but they were willing to produce them if the
accused so wanted. The accused, however, did not avail of this opportunity
in accordance with Section 217 of the Code and, therefore, it is too late in
the day for them to raise a grievance on that score. We hasten to add ~ H
848 SUPREME COURT REPORTS (1995) 2 S.C.R.

A · even if we had found that there was any irregularity in the continuation of
the trial against the appellants after the additional charges were framed,
we would not have been justified in setting aside the impugned judgment
on that ground alone for there is not an iota of material on record ·
wherefrom it can be said that a failure of justice has occasioned thereby.
To put it':clifferently, in our view in such a case Section 465 of the Code
.~ would have squarely applied.

<'In any'view of the matter, therefore, we are unable to accept the
contentfun of Mr. Jethmalani that the learned Courts below were not
justifieJ in relying upon the evidence of four witnesses, namely, Mahendra -~
C Singh, Sukhdeo Singh, Nageshwar Singh and. Ramchandra Singh who were i
descnbed as P.C. (previous Court) P.Ws. 1, 2, 3 and 4 respectively against
the appellant. Before we part with our discussion on this aspect of the
matter it will be pertinent to mention that the trial Court did not take into
consideration the evidence of the above four witnesses against· the three
accused who surrendered later and, then again, out of those three while
D two were acquitted the third did not prefer any special leave petition in
this Court.

Now that we have answered the two threshold questions raised by
Mr. Jethmalani, we may proceed to set out the two incidents including their
E background narrated by the prosecution during trial.

There are, tWo Bind Tolis known as North Laxmipur Taufir Bind Toll
and South Laxmipur Taufir Bind Toll in Laxmipur Taufir Diara and both
the inhabited. mainly by the people of Bind community. There are other
F neighbouring villages in the Diara, known as Taufir, Taufir Kariai Tola.
. Taufii' Kajo Manto Tola, Taufir lnder Mahto Tola. Taufir Inder Marar
Tola and Tikarampur and the inhabitants of these villages are mostly of
Yadav community. All these villages are situated within the Munger Muf-
fasil Police Station. A few years . .a .new district known as Khagaria
district was carved out of the old Munger district and after bifurcation
G village Mathur and village Chukti fell-Within the newly created district of
Khagaria and in the said villages mostly people of Yadav community are
residing. Mouza Bind Diara Harin Mar is situated within Jamalpur Anchal
under Munger Mufiasil Police Station. The land bearing plots No. 297,
3/373, 473, 559, 474, 615, 618, 2/618, 2/619, 620, 622, 623, 624, 625, 626, 521,
H 2312, 2/618 and 619 of the said village belong to Ratneshwar Singh and
RANBIR YADAVv. STATE[M.K.MUKHERJEE,J.) 849

otheri'of village Rajdhan within Gogari Police Station in the district of A ·
Khagaria. The aforesaid plots of land, at times, remain submerged for years
under water in the bed of river Ganga ('River' for short). When the lands
emerge out of water, and become cultivable, people grow crops over the
same.

According to the prosecution case, the said plots of land came out B
. of the water in the year 1984 and were cultiva~ed by accused Dharnidhar
Yadav; Sakaldeo Yadav, Rajendra Yadav, Ashok Yadav and other resi-
dents of village Taufir Kariai Tola against the wishes of the land owners
( and without paying anything, either in cash or in kind to the land owners.
Chandradeo Singh (P.W. 5), son of TilakdhariSingh, resident of village C
·-1"·
Laxmipur Taufir Bind Toli decided to take settlement of some out of the
said plots from the land owners on the basis of an agree~ent. which ·is
locally known as 'Manhunda'. The parties agreed to share the produce of
the land and one of the terms of the agreement was that the settlee would
pay wheat to the landlord at the rate of 4 maunds per bigha. Accordingly D
one agreement (Ext. l)was executed by Radha Kant Singh and other
co-sharers in favour of Chandradoo Singh on November 6, 1985 in respect

-- of 14 bighas, 11 kothas and 12 dhurs of lanci while another (Ext. 1/1) was
executed by Ratneshwar Singh and others on the same day for 11 bighas,
6 kothas and 7 dhurs. Having thus got settlement from their respective
owners Chandradeo Singh informed the Yadavas of Taufir Karari Tola that E
he would grow crop over the said plots. In spite thereof the Yadavas of
Karari Tola forcibly ploughed the plots on November 9, 1985 and sowed
Raichi (a kind ot oilseed). On the following day when Chandradeo Singh
along with his brother Mahendra Singh (P.C. P.W. 1) and others went to
cultivate those plots accused Dharnidhar Yadav, Ashok Yadav, Pramod F
Yadav, Sakaldeo Yadav and Wakil Yadav appeared there and chased
Chandradeo Singh and his companions, who ran away to save their lives.
At that time Yadavas gave out an open threat that the entire Bind Com-
munity would be eliminated if further attempt was made to cultivate the
land. Chandradeo Singh intended to give information 'about this incident
at Munger Muffasil Police Station but c0uld not as those Yadavas and their G
bench men had blocked the Bhelwa Bardhe Ghat as well as other Ghats,
through which one could, after crossing the River, go to the Police Station.

The case of the prosecution next is that on the following morning i.e.
on November 11, 1983 some 30/40 members of the Yadav community, who H
850 SUPREME COURT REPORTS (1995) 2 S.C.R.

A are all residents of village Karari Tola came to village Labnipur Taufir
Bind Toli led by accused Pramod Yadav, Sakaldeo Yadav, Wakil Yadav,
Dharnidhar Yadav and Subodh Yadav and started abusing the Binds.
Seeing the mob Chandradeo Singh, Bijay Singh, Sadhu Singh and Raje Sao
accosted them and requested not to resort to vi9lence. However, the
B Yadavs did not listen to their request and some of them started firing from 1
guns. The shots fired by accused Dharnidhar Yadav struck Bijay Singh and
R~je Sao, both of whom fell down there. Then the miscreants went back
holding out threat that all the members of the Bind community, residing in
the Diara would be killed. Over this incident two reports were lodged with
the police, one by Bishnudeo Sao and another by injured Bijay Singh and,
C as already noticed, two cases were registered on those informations. 1'--·
According to the prosecution the threats meted· out by the Yadavs
.in the morning were translated into action on the same day at or about 1 .
P.M. when a mob of about 600 Yadavs of neighbour villages armed with
D weapons like guns, pistols, bhalas and lathis came - some of them on horse
back - and attacked both the· Bind Tolls of Laxmipur Taufir. The mob
resorted to looting cash, cloth, grain, ornament and cattle and then setting
to fire the houses of the inhabitants there as a result of which about 200
houses were burnt to ashes. Thereafter some of the members of the mob
-
chased the villagers, including Ram Swarup Singh, Arjun. Singh, P.ainaboul
E SiMh, Bahadur Singh, Suresh Singh, Ghiban. Singh, Lal Bahadut Singh,
Bhumi Singh, Ramprabesh Singh, Rambilash Singh and Sadho Singh who/
were trying to flee away towards the River. When the above named persons
tried to escape on boats, anchored in Turasia Dhab (a vast expanse of
water) the miscreants fired at them, ·brought them down from the boats
F .and then dragged them to the River and threw them there. It is the specific
case of the prosecution that, besides others, the three appell.ants herein
had come on horse back with guns, led the mob and were active par-
ticipants in the ravage. As already mentioned over this incident also two
cases were registered, on the reports of one Janki Bind and other of
Mahender Singh (P.C.P.W.1).
G
The prosecution case further is that on getting information that some
incident has taken place in Taufir Bind Toli a police posse went there the
same night and B.K. Singh (P.W. 96), an Inspector ~f Poliee, took up
investigation of the two cases registered over the first incident under order
H of the Deputy Superintendent of Police, Munger. 0Jl. the following momiag
T

RANBIR YADAVv. STATE [M.K. MUKHERJEE,J.] ·. 8Sl

· he also took up investigation of the other two cases registered over the A
second incident. In conducting the investigation he took the assistance of,
amongst others, two Sub Inspectors of Police, namely, Shyam Narain
Prasad (P.W.68) and Naresh Prasad (P.W.99). In course ·of the investiga-
tion P.W. 96 inspected the places of occurrence and got sketch plans
prepared. Besides, under his direction P.W. ?9 seiied some burnt house- B
hold articles from the large number of huts which were burnt down by the.
miscreants. He requisitioned the services of the veterinary surgeon to
conduct post-mortem examination ·upon carcass of the goats and the cows
( found dead. He also went to the River to search for and recover the dead
bodies of the persons who were allegedly thrown there by the miscreants.
Ultimately the dead bodies of six out of the nine killed were recovered and C
after their inquests were held by P.W. 68 under his direction they were sent
for post-mortem examination. During investigation he seized the deed of
agreement under which Chandradeo Singh claimed to have obtained the ·
settlement of the plots in question.

While pleading not guilty to the charges levelled against them, the
o·
three appellants asserted that they were falsely implicated and each of
them took up the plea of alibi. In support of its case the prosecution:
enmined 105 witnesses. Out of them 22, who were all residents of villlF
Taufir Bind Toli claimed to. have seen both phases of the occurreace
whereas 47 others of the same village testified about the second phase only. E
.The appellants, in their turn, also examined some witnesses and exhibited
some documents in support of their defence.

Mr. Jctbmalani took us through relevant parts of the voluminous
evidence and the judgments of the learned Courts below to persuade us to F
re-appraise the evidence and examine the question of the credibility of the
witnesses, particularly those who testified against the three appellants, and
to hold that the evidence on record did not justify their convictions. Sitting
in the jurisdiction under Article 136 of the Constitution of India we will
not be justified in re-opening the whole case and disturbing concurrent
>
fmdings of fact recorded on a pure appreciation of evidence unless we hold G
that those findings have been recorded in utter disregard of mandatory
provisions of law resulting in serious prejudice and substantial ~justice to
the accused. The other area justifying our interference would be where on
the proved facts wrong inference of law has been drawn or the conclusions
on facts ar! manifestly perverse and based on no evidence. We have H
r

852 SUPREME COURT REPORTS [1995] 2 S.C.R.

A nonetheless made a critical analysis of some of the evidence on the record
with a view to appreciate the criticism of Mr. Jethmalahi.

To prove settlements of land in favour of P.W. 5, which according to
the prosecution was the genesis of the trouble, it examined Ratneshwar .
Singh (P.W.64), Subodh Kumar Singh (P.W. 65), Anand Singh (P.W. 82)
B and Aknileshwar Singh (W.P. 83), who are all residents of village Rajdhan
in the district of Khagaria and claimed to be the ·owners of the land in
question and exhibited the tWo agreements executed by them on 6.1.1985
(Exhibit 1and1/1). On discussion of their eviaence along with that of P.W.
5 and perusal of the agreements the trial Court concluded that the prosecu-
C tio~ succeeded in proving that land measuring about 30 bighas situated in
Moilza Bind Diara Harin Mar was settled by the above land owners in
favour of P.W.5. The High Court, in its turn, re-appraised the evidence and
concurred with the above finding. The High Court also observed that the
story of settlement of land was not seriously challenged on behalf of the
D appellants. Indeed, before us also no grievance was raised regarding the
above finding of fact. The next finding, recorded by the trial court on an
appraisal of the evidence of P.W. 5 and others, is that some Yadavas of
TaUfu Karari Tola were forcibly cultivating the land since it emerged from
the R;iver bed in 1984 and the Yadavas drove P.W.5 and his companions
away when, after taking settlement of the land, they went to grow crops
-
E thereon on 10.11.85 and threatened them with dire consequences in case
they dared to do so. This finding also does not appear to have been
challenged in the High Court and before us also it was not challenged.

It is in the above background that the two incidents of 11.11.85 have:
F to be considered. We however need not detail or discuss the evidence
relating to the first incident as, admittedly, the three appellants were not
involved therein and, in fact, they were not arranged in S.T. No. 83 of 86.
Suffice it to say, that on a proper appreciation of the evidence laid in
respect thereof a concurrent finding has been recorded by the Courts
below to the effect that the six Yadavs (who were facing trial for that
G in~ident) had come to the village Laxm.ipur Taufir Bind Toli armed with
various weapons including firearms, committed rioting, attempted to com-
mit murder of two by firing and causing injuries to them and then went
away holding out open threatto the villagers that the members of the Bind
Community would be eliminated. We may now, therefore, confine out ·
H attention to the evidence adduced during trial relating to the second
RANBIR YADAVv.STATE[M.K.MUKHERJEE,J.) 853

incident and the findings recorded by the trial Court and the High Court A
in respect thereof in general and as again.st the three appellants in par-
/
ticular.

The incident that allegedly took place in the afternoon may be
considered in two parts: while the ravage in both the Bind Tolis (North
and South) of Laxmipur may be treated as the first part, the murderous B
assault at the Tisrasia Dhab and bank of the River the second part. To give
an ocular version of the earlier part the prosecution relied upon the
evidence of as many as 69 residents of the village including F.C.P.Ws. 1 to
4. Each of them gave a detailed account of the vandalism perpetrated by
the riotous mob in the entire village and the looting and setting on fire of C
their respective houses in particular. On going through the impugned
judgments we find that the Courts below detailed and discussed their
evidence at length along with the evidence of Dr. Rana Pratap Singh (P.W.
43) who had examined some of them and found injuries, Dr. Amar Prasad
Singh (P.W. 50) who held post- mortem examination on the carcass of the
burnt cows and goats, B.K. Singh (P.W. 96} the Investigating Officer and D
Naresh Prasad (P.W. 99) the Sub-Inspector of Police who assisted P.W. 96
in the investigation. On such analysis the Courts recorded a finding that a

- riotous mob of about 500 to 600 persons came to the village, some of whom
were on horsebacks, armed with deadly weapons including firearms and
surrounded it. The other finding recorded is that then the riotous mob E
plundered the village, assaulted some of the villagers and set 460 huts on
fire.

For narrating and proving the other part ·of the incident, which
according to the prosecution was the finale to the ghastly episode, ·it relied
upon the evidence of, besides others, P.C.P.Ws. 1 to 4, Jhingur Singh F
(P.W.6), Moti Singh (P.W. 8), Medhi Singh (P.W. 14), Wakil Prasad Singh
(P.W.17), Banarasi Singh (P.W.18), Sarjug Singh (P.W. 19) Moharail Singh
(P.W. 29) and Suresh Singh (P.W. 46) as they claimed to have also seen as
to what had happened at Tisrasia Dhab and on the bank of the River. Botbi
the Courts below recounted their evidence and after exhaustive evaluating
thereof found the same consistent. On· the basis thereof.the Courts held G
that the prosecution had succeeded in proVing that whe~ the mob was
engaged in committing loot and arson in the village, some villagers fled
towards Tisrasia Dhab and they were chased by some of the miscreants.
Amongst those who were being chased were i) Ramswarup Singh, ii) Lal
Bahadur Singh, iii) Rampravesh Singh, iv) Rambilas Singh, v) Sadho Singh, H
854 SUPREME COURT REPORTS [1995] 2 S.C.R.

' A/ vi) Arjun Singh, vii) Bhumi Singh, viii) Ramadul Singh, ix) Shibon Singh
(all dead) x) Sukhadeo Yadav (P.C.P.W. 2), xi) Nageshwar Singh
(P.C.P.W.3), xii) Moharil Singh (PW 29) xiii) Suresh Singh (PW 46). All
the n1embers who were chasing were armed with rifle, gun, pistol, bhalla
etc. and some of them were on horse back. The next finding recorded by
the Courts is that those who were chased boarded a country boat in
B Tisrasia Dhab and started rowing to go to the other side. In the meantime
the rioters reached there, opened fire and captured the boat. While three
of the occupants of the boat - P.C.P.W. 2, P.C.P.W. 3 AND PW 29 escaped
from their clutches by jumping into the River the other ten were ap-
prehended and some of them were fired at, as a result of which Arjun Singh
C and Bhumi Singh died at the spot. Then the miscreants forcibly took the
others towards the bank of the River. There they were shot at and also
assaulted with other weapons. Then some of them were thrown in the
River. On the following day six dead bodies out of the nine killed were
recovered from the River while P.W. 46 was found lying on its bank, in an
unconscious state with injuries on his person.
D
In assailing the above findings Mr. Jethmalani first contended that
both the Courts below ought not to have taken into consideration and
relied upon the evidence of P.C.P.W. 1 as the same was clearly inadmis- -
sible. In expanding his argument Mr. Jethmalani submitted that while being
E examined in Court the witness was permitted to refresh his memory from
the report he lodged with the police in the morning of 12.11.1985 (Ext.
. 10/1), which was treated as the F.I.R. of the second incident even though
by no stretch of imagination could that report be so treated, as P.W. 96
had stl:l.fted investigation into the same the previous night. That necessarily
meant that Ext. 10/1 was a statement made to a police officer during
F investigation which could to be read for an purpose except for contradict•
ing the maker thereof in view of Section 162 (1) of the Code, argued Mr.
: J ethmalani. In support of his contention Mr. J ethmalani relied upon the
judgment of the Prj.vy Council in Zahiruddin v. Emperor AIR 1947 P.C. 75.
It appears that the question as to whether Ext. 10/1 could be treated as an
G F.1.R. was raised both before the Trial Court and the High Court and it
was answered-in the affirmative. The Courts held that in the night of
11.11.1985, P.W. 96 did not examine any witness in connection with the \
incident that took place in that afternoon and, in fact, he did not take any
step towards the investigation as he and other police officers were busy in
H maintaining law and order in the village.
RANBIR YADAVv. STATE [M.K. MUKHERJEE,J.) 855

Having gone through the evidence of P.W. 96 we are constrained to A
_./
I say that the Courts below were not justified in treating Ext. 10/1 as an F.I.R.
undisputedly P.W. 96 had reached the village Laxmipur Bind Toli in the
night of 11.11.1985 to investigate into the two cases registered over the
incident that took place in the morning. He deposed that after reaching
the village at 10.30 p.m. he got information about the second incident also
B
and in connection therewith he had talked to several persons. He, however,
stated that he did to record the statements of the persons to whom he
talked to. In cross examination it was elicited from him that on the very
""'"'\
night he learnt that houses of some people had been looted and set on fire,
( some people had been murdered and that some villagers were untraceable.
While being further cross examined he volunteered tha~ he had started the c
r investigation of the case registered over the second incident in the same
night. In the face of such admissions of P.W. 96 and the various steps of
investigation he took in connection with the second incident there cannot
be any escape form the conclusion that the report lodged by P.C.P.W. 1
on the following morning could only be treated as a statement recorded in
D
accordance with Section 161(3) of the code and not as an F.I.R. The next
question, therefore is whether the evidence of P.C.P.W. 1 is in admissible
as contended by Mr. Jethmalani.

In the case of Zahirnddin (supra) the police had got the statement
of the principal witness which was, admittedly, recorded during investiga- E
tion signed by him. Besides, during trial, while being examined-in-chief he
refreshed his memory from that statement. The trial ended in an acquittal
with a finding that when a Police Officer obtains a signed statement from
a witness in contravention of Section 162 of the Criminal Procedure Code
his evidence must be rejected. In appeal the High Court set aside the order F
of acquittal holding that breaches of the provisions of Section 162 Criminal
Procedure Code were not in themselves necessarily fatal to the proceedings
and might in appropriate circumstances be cured as the expression was
under the term of Section 537 of the Criminal Procedure Code 1898
(Section 465 of the Code). In setting aside the order of the High Court the
Privy Council observed as under: G
)
"......The effect of a contravention of the Section 162(1) depends
on the prohibition which has been contravened. If the contraven-
tion consists in the signing of a starter ?? made to the police and
reduced into writing, the evidence of the witness who signed it H
856 SUPREME COURT REPORTS (1995) 2 S.C.R.

·A does not become inadmissible. There are no words either in the
section or elsewhere in the statute which express or imply such a
consequence. Still less can it be said that the statute has the effect
of vitiating the whole proceedings when evidence is given by a
witness who has signed such a statement. But the value of his
evidence may be seriously impaired as a consequence of the
B contravention of this statutory safeguard against improper prac-
tices. The use by a witness while he is giving evidence of a statement
made by him to the police raises different considerations. The
categorical prohibition of such use would be merely disregarded if
reliance were to be placed on the evidence of a witness who had
c made material use of the statement when he was giving evidence at
the trial. When therefore, the Magistrate or Presiding Judge discovers
that a witness has made material use of such a statemelll it is his
duty under the section to disregard the evidence of that witness as
inadmissible. In the present case there is in the note at the end of
Mr. Roy's examination-in-chief and, in the judgment of the
D
Magistrate what amounts to a finding of fact that Mr. Roy while
giving his evidence made substantial and material use of the signed
statement given by him to the police, and the Magistrate was
accordingly bound to disregard his evidence. The Magistrate's
reason for doing so is too broadly stated for it is not the mere fact
-
E that Mr. Roy had signed the statement but the fact that he had it
before him and consulted it in the witness box that renders his
evidence incompetent."

(emphasis supplied)
F
In our considered view the above quoted passage is of no assistance
to the appellants herein for in the instant case after P.C.P.W.1 testified
about the incident, prosecution got the statement of P.C. P.W.1 exhibited
Ex. 10/1 as according to it Ext. 10/1 was the F.I.R. Such a course was legally
permissible to the prosecution to corroborate the witness in view of Section
G 157 of the Evidence Act. Of course in a given case - as in the present one
- the Court may on the basis of subsequent materials hold that the state-
ment so recorded could not be treated as the F.I.R. and exclude the same
from its consideration as a piece of corroborative evidence .in view of
Section 162 of the Code but then on that score alone the evidence of a
H witness cannot be held to be inadmissible. The case of Zahintddin (supra)
. --...,
RANBIR YADAVv. STATE [M.K. MUKHERJEE,J.) 857

turned on its own facts, particularly the act that during his examination-in- A
chief the witness was allowed to refresh his memory from' the statement
recorded under Section 161 Criminal Procedure Code, unlike the present
one where the statement was admitted in evidence after f~C.·P.W.1 had
testified about the facts from his own memory.

Mr. J ethmalani next submitted that the prosecution case scf far as it B
related to the attack on villagers when they were trying to flee away on a
boat at· the Tisrasia Dhab was absolutely untrue for, even· though the
prosecution witnesses claimed that after capturing the boat and bringing
( the occupants down the rioters fired at them as a result of which Arjun
Singh and Bhumi Singh dropped down dead there and their dead bodies C
were recovered from the River. According to Mr. Jethmalani, if the
evidence of the witnesses was to be believed those dead bodies would have
been found in Tisrasia Dhab itself and not in the River for, adinittedly, the
water of the former does not flow to the latter. On perusal of the evidence
on record including that of P.W.96 we are unable to accept the above D
contention. Culling the evidence of the witnesses who spoke about the
incident at Tisrasia Dhab and the bank of the River we find that all the 10
persons who were brought down from the boat including those who were
shot at were taken to the bank of the River. The above evidence again
stands corroborated by the evidence of P.W. 96, who spoke of having seen
signs of dragging between the two places, namely, Tisrasia Dhab and the E
bank of the River as well as foot prints. The find of dead bodies of Arjun
Singh and Bhumi Singh in the River, therefore, does not contradict the case
of the prosecution that those two persons were shot at Tisrasia Dhab.

The next argument of Mr. Jethmalani was that the evidence of P.W. F
46 was wholly unreliable and the Courts below ought not to have placed
reliance upon the same. Since this argument of Mr. Jethmalani is solely
directed against the acceptance of his evidence for conviction of the
appellant Ranbir Yadav, we will consider the same while dealing with the
case of the appellants separately. Mr. Jethmalani's last criticism against the
findings of the Courts below as mentioned earlier was that the evidence of G
the eye witnesses who testified about the second incident was highly
discrepant and untrustworthy and, therefore, it should not have been relied
upon. To ascertaiD whether the contention was borne out by record we ;
have carefully examined the judgments of the Courts below in the light o(
the relevant evidence and keeping in view the following observations of this H
858 SUPREME COURT REPORTS {1995) 2 S.C.R.

A Court in Shivaji v. State of Maharashtra, A.LR. 1973 S.C. 2622 as it applies
in all fours in this case also:

"...... The scene of murder is rural, the witnesses to the case are
rustics and so their behavioural pattern and perceptive habits have
to be judged as such. The top sophisticated approaches familiar
B in courts based on unreal assumptions about human conduct
cannot obviously be applied to those given to the lethargic ways of
our villages. When scanning the evidence of the various witnesses
we have to inform ourselves that variances on the fringes, dis-
crepancies in details, contradictions in narrations and embellish-
c ments in essential parts cannot militate against the veracity of the
core of the testimony provided there is the impress of truth and
conformity to probability in the substantial fabric of testimony
delivered."

On such examination we find that the various contentions raised on
D behalf of the accused/appellants have been carefully examined the evidence
given by the respective witnesses has been correctly marshalled and as-
sessed and the infirmities and contradictions in them closely scrutinised.
Since the concurrent findings earlier detailed have been arrived at on such
exercise, we find no ground or justification to disturb the same. We may
-
E now, therefore, divert our attention to the case of the individual appellant.

In assailing the conviction of Ranbir Yadav, the appellant in Criminal
Appeal No. 34of1992. Mr. Jethmalani pointed out that the only overt act
that was ascribed to him was that he had assaulted Suresh Singh (P.W.46)
with a stick, twisted his neck and then threw him into the River; and to
F prove this fact prosecution relied solely upon his evidence. He contended
that the Courts below ought not to have accepted his evidence firstly,
because the prosecution itself had found him unreliable and cross-ex-
amined him at length and, secondly, because the story of assault as given
out by him stood falsified by the evidence of Dr. Akhtar Ahmad (P.W.63)
G who examined him. In dealing with the case of Sukhdeo Yadav, the
appellant in Criminal Appeal No. 35 of 1992, he contended that against
him the only allegation was that he had shot down Arjun Singh but the
evidence of P.W.63 who held post-mortem examination upon his dead body
indicated that he had no gun shot injury upon his person. As regards
Pandav Yadav, the appellant in Criminal Appeal No. 36of1992, he urged
H that the only part assigned to him was that he and two others had fired at
RANBIR YADAV v. STATE [M.K. MUKHERJEE, J.) 859

and killed Bhumi Singh but the medical evidence disclosed that there was A
only one firearm injury. According to Mr. Jethmalani, to convict a person
under Section 1491.P.C. the prosecution has got to prove he has committed
an overt act in prosecution of the common object of the unlawful assembly.
Judged in that context, he submitted, the conviction of none of the three
appellants could be sustained in view of the highly discrepant and un-
trustworthy evidence of the witnesses who spoke about the overt acts B
committee by the three appellants. In support of this contention he laid
strong emphasis upon the judgment of this Court in Baladin v. State of U.P.
A.LR. (1956) SC 181. In that case this Court held that it was well settled
r that mere presence in an assembly did not make a person a member of an
unlawful assembly unless it was shown that he had done something or C
omitted to do something which would make him a member of an unlawful
or unless the case fell under Section 142 I.P.C. It was further held that it
was necessary for the prosecution to lead evidence pointing to the con-
clusion that the accused had done or been committing some overt act in
prosecution of the common object of the unlawful assembly.
D
If the above quoted proposition of law had still operated in the field
it might have been necessary for us to closely scrutinise the evidence of the
eye witnesses so far as it sought to prove the overt act allegedly committed
by each of the appellants to ascertain whether the learned Courts below
were justified in accepting the same. But the above interpretation given to E
Sections 141 and 149 I.P.C. in Baladin's case (supra) was explained by a
four Judge Bench of this Court in Masalti v. State of U.P. A.l.R. (1965)
S.C. 202 as under:

"It appears that in the case of Baladin (S) AIR (1956) SC 181 the
members of the family of the appellants and other residents of the F
village had assembled together; some of the shared the common
object of the unlawful assembly, while others were merely passive
witnesses. Dealing with such an assembly, this Court observed that
the presence of a person in an assembly of that kind would not
necessarily show that he was a member of an unlawful assembly. G
What has to be proved against a person who is alleged to be a
) member of an unlawful assembly is that he was one of he persons
constituting the assembly and he entertained along with the other
members of the assembly the common object as defined by S.141,
l.P.C. Section 142 provides that however, being aware of facts
which render any assembly an unlawful assembly, intentionally H
860 SUPREME COURT REPORTS [1995) 2 S.C.R.
\\1,

A joins ch~~· ·a~mbly, or continue in it, is said to be a member of an
unlawful assembly. In other words, an assembly of five or more
persons actuated by, and entertaining one or more of the common
objects specified by the five clauses of S.141, is an unlawful as-
sembly. The crucial question to determine in such a case is whether
the assembly consisted of five or more persons and whether the
B said persons entertained one or more of the common objects as
specified by S.141. While determining this question, it becomes
relevant to consider whether the assembly consisted of some per-
sons who were merely passive witnesses and had joined the as-
sembly as a matter of idle curiosity without intending to entertain
the common object of the assembly. It is :,, that context that the
c observations made by this Court in the case of Baladin. (S) AIR ·-~

(1956) SC 181 assume significance; otherwise, in law, it would not
be comet to say that before a person is held to be a member of an
unlawful assembly, it must be shown that he had committed some
illegal overt act or had been guilty of some illegal omission in
D pursuance of the common object of the assembly, in fact. S.149
makes it clear that if an offence is committed by any member of an
unlawful assembly in prosecution of the common object of that
assembly, or such as the members of that assembly knew to be likely
to be committed in prosecution of that object, every person who, ai
the time of the committing of that offence, is a member of the same
E assembly, is guilty of that offence: and that emphatically brings out
the principle that the punishment prescribed by S.149 is in a sense
vicarious and does not always proceed on the basis that the offence
has been actually committed by every member of the unlawful
assembly. Therefore, we are satisfied that the observations made
in the case of Baladin (S) AIR (1956) SC 181 must be read in the
F context of the special facts of that case and cannot be treated as
laying down an unqualified proposition of law'such as Mr. Sawhney
suggests."

(emphasis supplied)
G The above quoted principle was reiterated by this Court in Lalji v. State of
U.P., AIR (1989) S.C. 754 with the following words:

The two essentials of the Section (Section 149 I.P.C.) are the
commission of an offence by any member of an unlawful assembly
H and that such offence must have been committed in prosecution
RANBIR YADAV v. STATE [M.K. MUKHERJEE, J.) 861

of the common object of that assembly or must be such as the A
members of that assembly knew to be likely to be committed. Not
every person is necessarily guilty but only those who share in the
common object. The common object of the assembly must be one
of the five objects mentioned in S.1411.P.C. Common object of the
unlawful assembly can be gathered from the nature of the assembly,
anns used by them and the behaviour of the assembly at or before
B

-,,
I
. scene of occu"ence. It is an inference to be deduced from the facts
and ci~cumstances of each case.

I Section 149 makes every member of an unlawful assembly at the
,..,. time of committing of the offence guilty of that offence. Thus this c
section created a specific and distinct offence. In other words, it
created a constructive or vicarious liability of the members of the
unlawful assembly for the unlawful acts committed pursuant to the
common object by any other member of that assembly. However,
the vicarious liability of the members of the unlawful assembly D
extends only to the acts done in pursuance of the common object
of the unlawful assembly, or to such offences as the members of
the unlawful assembly knew to be likely to be committed in
prosecution of that object. Once the case of a person falls within
the ingredients of the section the question that he did nothing with
his own hands would be immaterial. He cannot put forward the E
defence that he did not with his own hands commit the offence
committed in prosecution of the common object of the unlawful ·
assembly or such as the members of the assembly knew to be likely
to be committed in prosecution of that object. Everyone must be
taken to have intended the probable and natural results of the F
combination of the acts in which he joined. It is not necessary that
all the persons forming an unlawful assembly must do some overt
act. When the accused persons assembled together, armed with lathis,
and were parties to the assault on the complainant party, the prosecu-
tion is not obliged to prove which specific overt act was done by
which of the accused. This section makes a member of the unlawful G
)
assembly responsible as a principal for the acts of each, and all,
merely because he is a member of an unlawful assembly. While
over act and active participation may indicate common intention
of the person perpetrating the crime, the mere presence in the
unlawful assembly may fasten victoriously criminal liability under H
862 SUPREME COURT REPORTS (1995] 2 S.C.R.

A S.149. It must be noted that the basis of the constructive guilt uncier
S.149 is mere membership of the unlawful assembly, with the
requisite common object or knowledge."

(emphasis supplied)

B The Court thereafter considered the facts of the case before it and ob-
served that after having held that the appellant formed an unlawful assemb-
ly carrying dangerous weapons with the common object of resorting to ,_.-
violence, it was not open to the High Court to acquit some of the members "'<
on the ground that they did not perform any violent act or that there was \
C no corroboration of their participation.

In view of the above interpretation given to Section 149 IPC we need
not delve into or decide the contention raised by Mr. Jethmalani that the
evidence regarding the specific overt acts ascribed to each of the three
D appellants herein is not reliable, for the evidence of the host of eye-wit-
nesses - which both the Courts below considered and accepted ~ oon-
clusively prove th~t all the three appellants shared the common object of
the unlawful assembly to commit the offences of loot, arson and murder
and causing the disappearance of the evidence of murder and that in
furtherance of those common objects some members of that unlawful
-
E ·assembly committed those offences for which the appellants are also liable
to be convicted under Section 149 IPC. Even if we.leave aside the evidence
of Suresh Singh (P.W.46) who testified about the overt acts committed by
all the three appellants, of P.C. P.W. 2 who spoke about the overt acts of
appellants Pandav Yadav and Sukhdeo Yadav and of P.C.P.W.l and P.W.
F 19 who deposed about the overt act of Sukhdeo Yadav there are the \
testimonies of the other eye-witnesses, (o whom reference has already been
made, and found to be trustworthy, who identified the three appellants,
besides others, as having been members of the unlawful assembly. Having
sifted their evidence and considered the same in the backdrop of the events
preceding the incident that took place in the ·afternoon of 11.11.1985 we
G find that the following conclusions are inevitable: (i) a mob of 500/600
people, most of whom belonged to Yadav community and were residents
of different villages came to and attacked the neighbouring village Lax-
mipur Taufir Bind Toli to exterminate the Bind community: (ii) the three
appellants who belong to Yadav community and are residents of three
H separate adjoining villages came on horse back armed with fire arms, and
.. 'i

RANBIR YADAV v. STATE [M.K. MUKHERJEE, J.) 863

led the mob along with some others; and (iii) the appellants were also A
amongst the rioters who chased the villagers and committed the murders
at Tisrasia Dhab and the bank of the RiYer.

In drawing the above conclusions we have taken note of the following
passage form the judgment of this Court in Bajwa & Ors. v. State of U.P.,
(1973J 3 S.C.R. 571 to which our attention was drawn by Mr. Jethmalani. B

"The evidence through which we have been taken by the learned
counsel at the bar has been examined by us with care and anxiety
because in cases like the present where there are party factions,
as often observed in authoritative decisions there is a tendency to C
include the innocent with the guilty and it is extremely difficult for
the Court to guard against such a danger. The only real safeguard
against the risk of condemning the innocent with the guilty lies in
insisting on acceptable evidence which in some measure implicates
such accused and satisfies the conscience of the court. (see Kash·
mira Singh v. State of M.P. and Bhaban Sahu v. The King). In the D
case in hand, no doubt the prosecution witnesses claiming to have

- seen the occurrence have named all the appellants and the ap·
prover has even named those acquitted by the High Court, but in
our view it would be safe only to convict those who are .stated to
have taken active part and about whose identity there can be no E
reasonable doubt."

For the foregoing discussion the impugned convictions and sentences
recorded against the three appellants must be upheld. Incidentally we may
also mention that the plea of alibi taken by each of the three appellants
was found by both the Courts below, on proper consideration of the F
evidence adduced in support thereof, to be wholly unsustainable. Indeed
Mr. Jethmalani did not challenge this finding.

In the result, the appeals are dismissed.

CRL.M.P. NO. 2423/93 AND CRL. M.P. NOS. 2424-25194.
G
)

Since the criminal appeals stand dismissed these miscellaneous peti·
tions filed in connection therewith stand disposed of.

R.A. Petition Dismissed.