KRISHNA MOCHI AND ORS. v. STATE OF BIHAR ETC

Citation: [2002] 3 S.C.R. 1

Court: Supreme Court of India

Bench: M.B. SHAH, B.N. AGRAWAL, ARIJIT PASAYAT

Judgment text

KRISHNA MOCH! AND ORS. v. STATE OF BIHAR ETC. APRIL IS, 2002 [M. B. SHAH, B. N. AGRAWAL AND ARIJIT PASAYAT, JJ. ) Criminal Law: Terrorists and Disruptive Activities (Prevention) Act, 1987/Penal Code, 1860-Section 3/Section 302 read with Section 149-Death sentence- Justification of-Accused belonging to militant group a/lacked members of particular community pursuant to conspiracy hatched-Gruesome carnage wherein 35 persons ofa community massacred and many other injured besides destruction of houses by fire-119 person charge-sheeted out of which 13 were put on trial-Trial Court acquilling four of the accused and convicting others under TADA and ! PC-Four of the accused convicted under Section 302 read with Section 149 !

PC and sentenced to rigorous imprisonment oflife and under Section 3 TADA with death sentence-Appeal and death reference- Whether 'rarest of rare case' warranting death sentence-Held, yes since crime not only ghastly but also enormous in proportion as 35 persons ofone community were massacred in an extremely diabolic, revolting and dastardly manner which affected the normal tempo of life of the community in the locality-Further culpability ofthe accusedpersons assumes the proportion of extreme deprivity that a special reason exists under Section 354 (3) Cr. P. C. for sentencing them to death penalty-Code of Criminal Procedure, 1973. + Section 354 (3).

Criminal Trial : Appreciation ofevidence-Complicity ofaccused-Case involving large number ofoffenders and large number ofvictims-Only few witnesses-Whether proved by credible evidence-Held, yes since in the maller ofappreciation of evidence of witness it is not the number of witnesses but quality of evidence that matters-Evidence Act, 1872-Section 134. Evidence Act, 1872 : Evidence-Appreciation of-Duty of Court in appreciating evidence- Discussed. Witnesses-Evidence-Non-credibility of-Discussed ~ Accused persons belonging to militant group allegedly hatched conspiracy to massacre members of a particular community which led to gruesome carnage wherein 35 persons of a community lost their lives, many were injured besides destruction of houses by fire.

On the basis of the statement of the informants police instituted a case and in all 119 persons were charge-sheeted of whom 13 accused persons including appellants were tried under Terrorists and Disruptive Activities (Prevention) Act, 1987. On the basis of evidence of the prosecution witnesses and the post mortem examination Designated Court acquitted four of the accused persons and convicted the others under TADA and IPC. Appellant-accused have been convicted under Section 302/149 IPC and sentenced to rigorous imprisonment for life and Section 3 (1) ofthe TADA with death sentence. Hence the present appeal and death reference.

On behalf of the appellants it was contended that the prosecution has failed to prove the participation of the appellants in the crime by credible evidenc; that it was a fit case in which benefit ofdoubt should have been given to the appellants; that since the informant was not examined, the first information report could not be used as substantive evidence; that the names ofthe appellants did not find place in the confessional statement said to have been made by co-accused; that the investigating officer has not been examined; that no incriminating articles were recovered from the appellants; that identification of the appellants was not possible in the dead of night; that the appellants were not_ the assailants and that it was not a fit case for awarding the extreme penalty of death.

Respondents contended that the prosecution has succeeded in proving its case and complicity of the appellants with the crime by unimpeachable evidence and there was no infirmity in the conviction order and that the sentence ofdeath awarded against the appellants was in accordance with law as the instant case falls in the category of 'rarest of the rare. ' Dismissing the appeal and confirming the death reference, the Court. HELD: (Per Agrawal, J. ) 1. In recent times there has been sharp decline ofethical values in public life even in developed countries much less developing once, life ows, where - pt their presence in the mob at the time of offence and also --k KRISHNAMOCH! v. STATEOFBIHAR[B. N. AGRAWAL,J. ] 9 nowhere stated that identified accused were having any weapon or offence. Even the investigating officers have not recovered any weapon or offence or any incriminating article from the possession orany orthe accused.

Therefore, in view of the short-comings in the investigation and the evidence, which only proves the presence or the accused at the scene or offence, it would not be fit case for imposing death penalty. (50-B; 51-E-H; 52-A] 2. 2. Appellant No. 2 is acquitted or the charges for which he was facing trial and conviction or appellant Nos. 1, 3, and 5 and is upheld; however, imposition or death penalty is altered to life imprisonment. [52-B] State (Delhi Admn. ) v. Laxman Kumar, [1985[ 4 SCC 476; Kamaksha Roi and Ors. v. State ofUP. , (19991 8 SCC 701; Maso/ti v. State ofUttar Pradesh, [196418 SCR 133; Binay Kumar Singh v. State ofBihar, (199711 SCC 283; Re; Baddi Venkata Narasayya and Ors. v. State ofA. P. , (1998) 2 SCC 329; State of . A. P. v. Thakkidiram Reddy and Ors. , (199816 SCC 554; Hukam Singh and Ors. , v. State ofRajasthan, (2000) 7 SCC 490; Jamuna Choudhary and Ors. v. State ofBihar, Am (1974) SC 1822; Kishore Chand v.

State ofHimachal Pradesh, Am (1990) SC 2140 and Dilavar Hussain v. State ofGujarat, [1991) 1 SCC 253, referred to. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 761 of 2001. From the Judgment and Order dated 8. 6. 200 I of the Designated High Court Gaya at Bihar in G. R. No. 430 of I 992. WITH ' Death Reference No. I of 200I. U. R. Lalit and Irshad Ahmed for Sanjay Jain for the Appellant. H. L. Agrawal and Kumar Rajesh Singh for B. B. Singh for the Respondent. The Judgments of the Court was delivered by B. N. AGRAWAL, J. This is an unfortunate case ofa gruesome carnage on the holy land of Buddha, within the district of Gaya in the State of Bihar, where he got enlightenment, wherein 35 persons of a community, which was the most powerful one in the State at one point of time and ruled Bihar for decades, have been massacred with the unholy alliance ofmembers of another community leading to more or less an outburst of caste war between haves ~' and have nots.

*- This appeal has been directed against''judgment rendered by . S~ssions Judge, Gaya-cum-Designated Court under Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the 'TADA Act') whereby thirteen accused persons including the appellants were tried, out of whom, four of them namely, Nanhe Yadav (Accused No. l), Nanhak Teli (Accused No. 10), Naresh Chamar (Accused No. J1) and Ramashish Mahto (Accused I No. 12) have been acquitted whereas the four appellants, viz. , Krishna Mochiappellant No. 1 (Accused No. 8), Dharmel}dra Singh @ Dharu Singh-appellant ")... No. 2 (Accused No. 9), Nanhe Lal Mochi-appellant No. 3 (Accused no. 13) .... and Bir Kuer Paswan @ Beer Kuer Dusadh-appellant No. 4 (Accused No. 5) have been convicted under Sections 302/149 of the Indian Penal Code, 1860 (in short 'Penal Code') and sentenced to undergo rigorous imprisonment for life.

They have been further convicted under Section 3 (1) of the TADA Act and awarded death sentence and the proceedings have b~en submitted to this Court for confirmation. Bihari Manjhi (Accused No. 2), Ramautar Dusadh @ Lakhan Dusadh (Accused No. 4), Rajendra Paswan (Accused No. 6) and Wakil Yadav (Accused No. 7) have been convicted under Section 302/149 bf the Penal Code and Section 3 (l) of the TADA Act and sentenced to undergo ,. __ rigorous imprisonment for life on each count. However, sentences have been ordered to run concurrently. Out of these four accused persons, accused Nos. 2, 4 and 7 have filed separate appeal before this Court bearing Criminal Appeal No. 752 of 2001 whereas accused No. 6 has filed Criminal Appeal No. 765 of 2001 which though, have been heard together but are being disposed of by a separate judgment. Ravindra Singh (Accused No.

3) has been convicted under Section 3 (4) of the TADA Act and sentenced to undergo rigorous imprisonment for ten years but he has not preferred any appeal. In this case, there was gruesome carnage in which 35 members of one particular community in the State of Bihar lost their lives and the prosecution case, as disclosed in theJard beyan of one Satendra Kumar Sharma recorded in the wee hour of 13th February, 1992, is that in the same night about 9. 30 p. m. , he was about to go to bed, all of a sudden upon hearing sound of indiscriminate firing and explosion of bombs, he became terrorised and found the village ablaze. In the meantime, a mob consisting of l0 to 15 unknown -. l ( persons arrived at his house and started knocking at the door violently. One of such persons stated that they had come to apprehend Dayanand and Haridwar Singh as according to their information, both of them were in one KRISHNA MOCH! v. STATE OF BIHAR [B. N. AGRAWAL, J.

] 11 c f of houses of that village:-Upon this, the infonnant opened the door out offear and those unknown persons took him near the temple situated on the north eastern flank of the village where he found his father, two uncles and four brothers amongst others. All these persons were kept with their hands tied on the back. Some 50 to 60 unknown persons being variously armed were guarding the villagers. Hands ofthe informant were also tied and he was also made to sit there. The unknown terrorists fonned several groups each consisting of 15 to 20 persons. Each group used to go to village and bring the villagers. In presence of the infonnant, Lalesh Singh @ Nawlesh Singh, Lal Singh, ,; Bhulas Singh, Srikant Singh and Ramakant Singh were also brought from village. One of the terrorists was stating that no male member should be left alive in the village. In the meantime, female folk including wife of Parishan Singh, Ramesh Singh, Nagina Singh and Lakhan Singh arrived there weeping.

At that time, Sumiran Singh, Mithilesh Singh, Ekbal Singh, Upendra Singh and Awadhesh Singh were also brought and their hands were also tied. At -that time, 5 to 6 terrorists including Mahendra Ravidas, Jugal Mochi, Bugal Mochi arrived there and stated that their leader Kirani had directed to take all the villagers near the bridge on the canal. One terrorist who was being iiddressed as Manesajee asked the female folk to go to their houses. Thereafter, the villagers were taken near the canal where they were kept confined with ' their hands and legs tied. In the meantime, the informant heard sound of firing coming from western side of the village and in the light of the fire, he identified several accused persons including the appellants naming all of them. The terrorists slittered the villagers by cutting their neck with the help of pasuli which is a sharp cutting weapon.

In the mean time, the terrorists ·' having guessed arrival of the police, started fleeing away whereby anyhow the informant could save his life. The police with infonnant went to the place of occurrence and found 35 persons named in the Jard beyan dead and some persons having serious injuries who were immediately sent to hospital for treatment. It has been alleged in the Jard-beyan that the terrorists were armed with police rifles and some of them were in police uniform. The terrorists were about five hundred in number, out of which about two to three hundred persons were armed. When they made their retreat they shouted slogan of Maoist Community Center (hereinafter referred to as "M. C. C. ") Zindabad. The terrorists were talking among themselves that they had come to annihilate persons belonging to one particular community which was object of the -+ unlawful assembly and they wanted to strike terror in that community.

On the basis of the said Jard beyan, police instituted a case under Sectfons 147, 148, 149, 302, 307, 326, 436, 452, 341 and 342 of the Penal ·? -- ... , Code and Section 17 of Criminal Laws (Amendment) Act besides Sections -* 3, 4 and 5 of TADA Act. During investigation the police arrested many persons and confessional statement of accused ~ihari Manjhi was recorded by the Superi! J. tendent of Police, Gaya making self inculpatory statement ~ implicating himself and several other accused persons, including appellants , of the other two appeals in the crime. Upon completion of investigation, the police submitted charge sheet against 119 persons showing them as abltonders besides 13 accused persons whose cases were separated and they were put on trial. .. ,-... Defence of the accused persons was that they were innocent and had no complicity with the crime, but have been falsely implicated in the case on hand. During trial, the prosecution examined 34 witnesses and upon conclusion .....

:: of the same, by the impugned order, four accused persons named above have been acquitted whereas the remaining, including the appellants, have been convicted as stated above. Hence, the present appeal. In order to prove the massacre of 35 persons, the prosecution has ,.. _ examined four doctors, namely, Dr. Kapildeo Prasad (PW l), Dr. Arvind Kumar (PW 13), Dr. Arjun Singh (PW 14) and Dr. Mukti Nath Singh (PW 15) who held postmortem examinations on the dead bodies ofdifferent persons and found incised injuries in front of the neck caused by pasuli which is a sharp cutting weapon. The doctors also found that some of the deceased died ~due to fire arm injuries. The postmortem examination was conducted within a few hours of the occurrence and the time which elapsed between the time of death and post mortem examination, as found by doctors, was consistent T"'... with the time of occurrence and supports the prosecution case.

In order to prove its case that the accused persons belonged to M. C. C. , their intention was to create terror in the minds of persons belonging to a particular community in Bihar and to achieve that end, they used bombs,"dynamites, fire arms, lethal weapons besides sharp cutting weapon pasuli and massacred 35 members of a particular community and injured several persons after surrounding them, prosecution examined Maneshwar Devi (PW 3), Lal Badan Devi (PW 4), Belmati Devi (PW 5), Birendra Singh (PW 6), Lavlesh Singh (PW 7), Yogendra Singh (PW 8), Brajesh Kumar (PW 11), Gopal Singh (PW + 12), Ram Sagar Singh (PW 16), Budhan Singh (PW 18), Dhananjay Singh (PW 19), Bunde Singh (PW 20), Ram Sumiran Shanna (PW 21 ), Krishna Devi (PW 22), Rajmani Devi (PW 23) and Usha Devi (PW 30) as ~itnesses --------.. r KRISHNA MOCH! v. STATE OF BIHAR [B. N. AGRAWAL, J.

] 13 and upon consideration thereof, the trial court came to the conclusion that --f there was a gruesome carnage which conclusion could be neither assailed by learned counsel appearing on behalf of the appellants nor I find any Infirmity in the well reasoned judgment by the Designated Court on this count. Shri U. R. Lalit, learned senior counsel appearing on behalf of the appellants in support of the appeal submitted that the prosecution has failed to prove the participation of the appellants in the crime by credible evidence. Learned counsel further submitted that it is a fit case in. which benefit of ,. , doubt should be given to the appellants as informant was not examined, as such the first information report cannot be used as substantive evidence.

It has been also submitted that names of none of the appellants find place in the confessional statement said to have been made by co-accused Bihari Manjhi before the Superintendent of Police, Gaya, the investigating officer Ram Japit Kumar has not been examined, no incriminating articles could be recovered from the appellants, identification of the appellants was not possible in the dead of night and the appellants were not the assailants, but mere sight seers. Learned counsel, in the alternative, submitted that in any view of the matter, it was not a fit case for awarding the extreme penalty of death. ' On the other hand, Shri H. L.

Agrawal, learned senior counsel appearing •' on behalf ofthe State, submitted that the prosecution has succeeded in proving its case and complicity of the appellants with the crime by unimpeachable evidence and there was no infirmity in their convictions and sentence of death awarded against the appellants was in accordance with law as the present case falls in the category of "rarest of the rare". Thus, this Court is called upon to examine in this appeal evidence showing complicity of the appellants with the crime and consider their cases ,individually. All the appellants who were accused Nos. 5, 8, 9 and 13 in the present trial were named in the first information report. Krishna Mochi· appellant No. 1 (Accused No. 8) is said to have been identified by prosecution witnesses, namely, Belmati Devi (PW 5), Birendra Singh (PW 6), Yogendra Singh (PW 8), Ram Sagar Singh (PW 16), Dhananjay Singh (PW 19), Bunde Singh (PW 20) and Lalita Devi (PW 29).

Belmati Devi (PW 5) stated in her very examination-in-chief that she could not identify any of the accused persons which obviously means this accused as well, though, she stated that + she disclosed name of this appellant before the police as one of the accused who participated in the occurrence but in her cross-examination, this witness resiled from the statement aforesaid made in the examination-in-chief, as she ~- admitted that she did not disclose name of the appellant before the police. --\- Birendra Singh (PW 6) claims in Court for the first time after seven years from the date ofthe alleged occurrence that he identified this appellant as one of the persons who participated in the alleged occurrence, he having not identified this appellant before the police as would appear from the statement ·' of investigating officer Suresh Chander Sharma (PW 17),inasmuch as the occurrence is said to have taken place on 12th February, 1992 and the witness was examined on 17th April, 1999.

Thus, the evidence of Belmati Devi (PW 5) and Birendra Singh (PW 6) on the question ofparticipation ofthis appellant cannot be of any avail to the prosecution. )... _ Yogendra Singh (PW 8) who was an injured witness and resident of the village of occurrence claims to have witnessed the entire occurrence as during night when he was inside the house, the accused persons entered the house after breaking open the door, tied hands of this witness as well as his family members and they were taken near the canal where he found other villagers were already surrounded by accused persons and some more being brought with their hands tied. The accused persons thereafter got some other villagers from the temple and they tied their legs as well as of this witness and his family members inasmuch as started slitting their throats. Immediately after . ,. _ the occurrence, when the police arrived at the village, it found this witness lying on the ground with bleeding injuries.

This witness together with other 4 injured persons and the dead bodies was shifted to the hospital. This witness had to remain in the hospital for 24 days where the police recorded his statement. He identified this accused as one of the persons who participated in the occurrence. It has been submitted that no reliance should be placed on the evidence of this witness as he was examined by the police after 24 days. But I do not find any material in support of this submission as neither this witness nor anybody else has anywhere stated that police recorded his statement after 24 days rather, on the other hand, from the evidence of this witness, it appears that he was examined by the police in the hospital itself. It would appear that he was a natural witness as he was resident of the same village, the accused persons broke open the door of his house, took him and his .

, family members away from the house after tying their hands and the family members along with others were slittered·to death before arrival of police which found this witness lying on the ground with bleeding injuries whereafter 1m he was shifted to the hospital and there the police recorded his statement. This would go to show that the witness was examined by the police in the + hospital immediately after he was shifted there. This being the position, I do not find any ground to disbelieve this witness. KR! SHNAMOCH! v. STATEOFB! HAR[B. N. AGRAWAL,!. ] 15 Ram Sagar Singh (PW l 6) who was also resident ofvillage ofoccurrence .

-f stated that at the time of the alleged occurrence, when he was at his house, upon hearing sound of firing and heavy explosion from the western side of the village, he opened the door, came out of his house along with his family members and found about hundred people standing at some distance from his house and seeing this witness, one of the accused persons shouted at him whereupon he ran to the house of Hari Singh and climbed on the roof from where he had seen that the accused persons were passing through the streets after setting fire to houses in the entire village. Accused persons were armed , with rifles and guns and amongst them, he identified this appellant as well in the light of the fire which was set in the village by the accused persons. He has consistently supported the prosecution case that all the accused persons including this appellant as well as appellant No.

3 Nanhe Lal Mochi entered the village with fire arms and set the entire village on fire, but nothing could be pointed out on behalf of the defence to disbelieve his evidence. Dhananjay Singh (PW 19) whci was another injured person and resident ofthe village ofoccurrence stated that on 12th Febiuary, 1992, when he was sleeping in his house with his brothers, in the night, at about 9. 00 O'clock, sounds of explosion of bombs from all sides of village were heard and immediately thereafter his brother Vidya Bhushan Singh went out from the house for hiding himself in the house of a villager but before this witness could take shelter in the house ofanother villager, a bomb was thrown on the house making space for the accused persons to enter the san1e and thereafter they did enter the house with deadly weapons.

The hands of this witness and his three brothers were tied and thereafter, they were taken to the temple • where some people had already been brought from the eastern side of the village whose hands had also been tied and these persons were also made·to sit there. Thereafter, all those persons including this witness and his family members whose hands were tied were taken to a bridge upon the canal where ' many other villagers were made to sit and there the accused persons started slitting their throats with pasuli as a result ofwhich, left ear and throat of this witness were slittered and he became unconscious as a result of the injuries inflicted. After he regained consciousness on the next day, he was examined by the police immediately and before whom, he disclosed names of the accused persons, including this appellant, as persons who have participated in the present occurrence on the fateful night.

He has categorically stated that + he knew this accused from much before the date of the alleged occurrence. Learned counsel appearing on behalf of the accused persons cou"ld not point out any infirmity in the evidence of this witness so as to reject his sworn testimony. . - -\:- Bunde Singh (PW 20) is also resident of the village of occurrence and he stated that on the fateful night, when he was sleeping in his house with brothers, he heard sounds of firing and bomb explosion immediately where '! after the accused persons, including this appellant, as well as appellant No. 3, whom he identified, after breaking open the door of his house, entered the same and took them, after tying their hands, to the canal where their legs were alsc tied and there the accused persons started slitting the throats of the helpless persons whose hands and legs were tied. Thereafter some people ~ were shot dead on the southern side of the canal.

He has also stated that the accused persons were shouting the slogans 'Long Live MCC' and 'whoever would come in their way, would be done to death. ' This witness was examined by the police two days after the occurrence and it cannot be said that there was inordinate delay in recording his statement in the facts and circumstances ofthis case as it was a case ofcaste war wherein 35 persons ofone community having been massacred and several injured, there was great commotion and several villagers had to. be examined. Learned counsel appearing on behalf of the accused persons could not point out any infirmity in the evidence of this witness. r t- Last witness on the question of participation of this appellant is Lalita ~I- Devi (PW 29). This witness, though, stated that she could identify this appellant but could not identify him in Court due to very weak eye sight. Thus, the evidence of this witness on the participation of this appellant can be of no avail to the prosecution.

This being the position, I have no difficulty in holding that the participation of this appellant in the crime has been proved by credible evidence of Yogendra Singh (PW 8), Ram Sagar Singh (PW 16), Dhananjay Singh (PW 19) and Bunde Singh (PW 20) though it is not possible to place reliance upon the evidence of Belmati Devi (PW 5), Birendra Singh (PW 6) and Lalita Devi (PW 29). Turning now to the participation of appellant No. 2-Dharmendra Singh @ Dharu Singh (Accused No. 9), it may be stated that he is said to have been identified by Brajesh Kumar (PW I I), Dhananjay Singh (PW I9) and Ram Sumiran Sharma (PW 2 I). So far as Brajesh Kumar (PW 11) is concerned, ) this witness has named him for the first time in Session Court after seven and + a half years from the date of alleged occur_rence as according to the evidence of Investigating Officer Suresh Chander Sharma (PW 17), the witness did not disclose the name of the appellant in his statement made before the police .

:;,-- T ---- t be a ground for acquittal, but the case would depend upon the evidence led by prosecution. Therefore, non-examination of the informant cannot in any manner affect the prosecution case. It has been also contended that Inspector Ram Japit Kumar, who was one of the investigating officers, has not been examined. The alleged occurrence had taken place on 12. 2. 1992 and in the same night on the basis offard-beyan of the informant recorded by PW. 33, as stated above, Inspector of Police Ram Janam Singh drew the formal First Information Report. From the evidence ofthis witness, it would appear that the Superintendent of Police, Gaya directed Inspector Ram Japit Kumar to investigate this case and so long he did not take charge of the investigation, this witness was entrusted to commence the investigation under verbal orders of the Superintendent of Police, Gaya.

PW 33, thereafter, inspected the place of occurrence and seized blood stained earth, empties and reminiscence ofbomb explosion. 'Ibis witness further stated that as till 17th February, 1992 Inspector Ram Japit Kumar did not make himself available for taking over investigation of the case, he KRISHNA MOCH! v. STATE OF BIHAR [B. N. AGRAWAL, J. ] 27 ->---, culled out and applied to the facts of each individual case and where the question of imposing death sentence arises, the following proposition emerge from the case of Bachan Singh (supra) :- (i) The extreme penalty of death need not be inflicted except in j gravest cases of extreme culpability. (ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. . /" struck between the aggravating and the mitigating circumstances before the option is exercised.

~ The Court thereafter observed that in order to apply these guidelines the following questions may be answered:- (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances ofthe crime such that there is no alternative .. but to impose death sentence even after according maximum ). weightage to the mitigating circumstances which speak in favour of the offender? Ultimately, in the said case of Machhi Singh (supra), the Court observed ) '· KRISHNAMOCH! v. STATEOFBIHAR[B. N. AGRAWAL,!. ] 33 that if upon an overall . global view of all the circumstances in the light ofthe aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so.

In the light of the law already laid down by this Court referred to above, now this Court is called upon to consider whether the present case would come within the realm of the rarest of the rare or not. From the evidence adduced, it has been amply proved that the accused persons belonged to a militant group, being members of M. C. C. which is considered to be an organisation of militants, hatched up a conspiracy to massacre members of one particular community in the village in question and were raising slogans 'long live MCC' and 'whoever comes in their way, would be destroyed'.

Pursuant to the conspiracy hatched up, the militants formed different groups and went to different localities in the village in police uniforms armed with frre arms and explosive substances, broke open the doors ofhouses of members of that particular community, took out the entire family members after tying their hands, had taken some of them to the temple and thereafter to the canal whereas others were directly taken to the canal after tying their hands where their legs were also tied and after surrounding them from all sides, when they were in most helpless condition and could not take recourse to save their lives, some of them were done to death by fire arms but vast majority were massacred by slittering their throats with pasuli which resulted into 35 casualties and several persons were injured including prosecution witnesses.

The number ofaccused persons was vast but upon completion of investigation, charge sheet was submitted against 119 persons and so many persons were shown as prosecution witnesses therein. The accused persons also set fire to the houses of the members of the said community in the village. As a result of this incident, there was great commotion in the locality. There cannot be any manner of doubt that the villagers were done to death in an extremely diabolic, revolting and dastardly manner and had affected the normal tempo of life of the community in the locality. The crime in the present case is not only ghastly, but also enormous in proportion as 35 persons, all of whom belonged to one community, were massacred. Thus, after taking into consideration the balance sheet of aggravating and mitigating circumstances, in which 35 persons have been deprived of their lives by the accused persons ,.

L who were thirsty of their blood, I have no doubt in holding that culpability of the accused persons assumes the proportion of extreme depravity that a special reason can legitimately be said to exist within the meaning of Section 354 (3) of the Code of Criminal Procedure in the case on hand and it would A be mockery ofjustice if extreme penalty of death is not imposed. Thus, I am clearly ofthe opinion that the Designated Court was quite justified in upholding convictions of the appellants and awarding the extreme penalty of death which punishment alone was called for in the facts of the present case. In the circumstances of the case, the appeal fails an~ the same is B dismissed but the reference is accepted and death penalty awarded against the appellants is confirmed. ARIJIT PASAYAT, J. While I respectfully agree with Brother B. N. Agrawal that the appeal deserves dismissal, few aspects are indicated by me to supplement his conclusions and views.

c Accused appellants have placed strong reliance on the decision of this Court in Masalti and Ors. v. State of Uttar Pradesh, AIR (1965) SC 202 to contend that since large number of accused persons were involved, evidence ofone or two/three witnesses would not suffice. D To bring home accusation against appellant No. 2 (A-9) Dharmendra Singh @Dharu Singh, prosecution placed reliance on the evidence of Brajesh Kumar (PWl 1), Dhananjay Singh (PW19) and Sumiran Sharma (PW 21). Evidence of PWs 11 and 19 has not been considered credible. So PW 21 also pointed out accusing fingers at appellant No. 3 Nanhe Lal Mochi (accused. No. 13) and appellant No. 4-Bir Kuer Paswan (accused No. 5). So far as accused-appellant No. 2 Dharmendra Singh @ Dharu Singh is concerned, PW2 l's evidence is the only material against him, while in case of the other two accused-appellants other witnesses have also corroborated the version of this witness. Masalti's case (supra).

cannot be said to have laid down any rule ofuniversal application as contended by learned counsel for accused-appellants that conviction cannot be made on the basis of a single witness's evidence, as large number of accused persons are on trial. It is a well settled principle in law that evidence is. to be considered on the basis of its quality and not the quantity. Section 134 of Indian Evidence Act, 1872 is a pointer in that regard. This provision follows the maxim that evidence is to be weighed and not counted. In Masalti 's case (supra), the desirability to have at least two witnesses has been stated to be a matter of pmdence. Such a requirement can never be said to be inviolable, as would be culled out from Anil Phukan v. State af - Assam, AIR (1993) SC 1462), Maqsoodan v. State of U. P. , AIR (1983) SC 126. Appreciation of evidence cannot conceive of any rule of universal application and is certainly not to be treated as a theorem, and there can be no empirical formula.

The evidence on the facts of each case has to be KRISHNA MOCH! v. STATE OF BIHAR [ARIJIT PASAYAT, J. ] 35 --t analysed and conclusions drawn, and there cannot be pigeon-holing ofevidence on any set formula. It has not been shown by accused-appellants as to how evidence of PW 21 suffers from any infirmity. Since in Masa/ti's case (supra) a rule of caution was laid and not a mandatory rule of universal application, it is certainly not to be treated as a rule of law. There is always peril in treating the words of a judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting ofthe facts ofa particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two ,\- cases. (See Padamasundara Rao (dead) and Ors. v. State ofTamil Nadu and Ors. , JT (2002) 3 SC 1.

It is more so in a case where conclusions relate to appreciation of evidence in a criminal trial. Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of falsus in uno falsus in omnibus. This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other coaccused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end.

The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" (false in one thing, false in everything) has not received general acceptance nor has this maxim come . to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Alli v. The State ofUttar Pradesh, AIR (1957) SC 366. Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted.

It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurucharan Singh and Anr. v. State of Punjab, AIR ( 1956) SC 460. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care.

The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment.. (See Sohrab slo Beli Nayata and Anr. v. The State ofMadhya Pradesh, [1972] 3 SCC 751 and Ugar Ahir and Ors. v. The State of Bihar, AIR (1965) SC 277. An attempt has to be made to, as noted above, in terms of felicitous metapher, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State ofMadhya Pradesh, AIR (1954) SC 15 and Ba/aka Singh and Ors. v.

The State ofPunjab, AIR ( 1975) SC1962. As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. , AIR (1981) SC 1390, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a 'witness may be. Mat~rial discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. Accusations have been established against accused-appellants in the case at hand. The factual scenario highlighted and established by the prosecution shows how gruesome and macabre acts were perpetrated by the accused persons.

Thirty five people lost their lives and several others have· been seriously injured because of caste war. The gruesome acts were diabolic in their conception and cruel in execution. There was deliberate and planned destruction ofextensive properties and annihilation oflarge number of persons. KRISHNA MOCHIv. STATE OF BIHAR [ARIJIT PASAYAT, J. ] 37 All these happened, as noted above, on account of caste war. In a country like ours where discrimination on the ground of caste or religion is a taboo, taking lives of persons belonging to another caste or religion is bound to have dangerous and reactive effect on the society at large. It strikes at the very root ofthe orderly society which the founding fathers of our Constitution dreamt of. It has been conclusively held that accused persons were not innocent by-standers or onlookers. Chain of evidence clearly shows what their object was. . as awarded by the Trial Court are to be upheld and appeal deserves to be dismissed. SHAH, J.

With respect I regret for my inability to agree with the judgment rendered by my learned brother Justice Agrawal. At the outset, it ; requires to be stated that this case illustrates how faulty, delayed, casual, unscientific investigation and lapse of long period in trial affects the administration ofjustice which in turn certainly shakes the public confidence in the system. Is it not possible for the authorities to find out ways and means 'I-· for speedy, efficient, scientific investigation in at least heinous brutal carnage and for trying the case within few months of occurrence? Ifthis is not done, it is of no use to complain that accused are not punished in such cases. In any case, for deciding such criminal case, it is the bounden duty of the court to appreciate the evidence brought on record, as it is, in accordance with established law without being influenced by the allegations levelled by the prosecuting agency or by the incident.

Before appreciating the evidence, I would refer to the observations ofthis Court in State (Delhi Admn. ) v. Laxman - Kumar, [1985] 4 SCC 476 at 505] observed as under:- "Mankind has shifted from the state ofnature towards a civilized society and it is no longer the physical power of a litigating individual or the might of the ruler nor even the opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award ofpunishment following conviction at a trial in a system wedded to rule of law is the outcome of cool deliberation in the court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecutor is given an opportunity of supporting the charge and the accused is equally given an opportunity of meeting the accusations by establishing his innocence.

It is the outcome of cool deliberations and the screening of the material by the informed mind of the Judge that leads to determination of the lis........ " In the present case, in gruesome carnage, 35 persons lost their lives, some houses/huts were burnt, number of persons were injured and in that case charge-sheet was submitted against 119 persons. Out of them, 13 were tried by the Designated Court of Sessions Judge, Gaya in G. R. Case No. 430 _\, of 1992, Tekari Police Station Case No. 19 of 1992 under the provisions of Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as "TADA Act") and under Section 302/149 etc. of Indian Penal Code ' KRISHNA MOCH! v. STATE OF BIHAR [SHAH, J. ] 39 (hereinafter referred to as "! PC"). After recording the evidence, by judgment A . and order dated 8. 6.

2001, the Designated Court (a) acquitted A-1 Nanhe Yadav@ Dina Yadav, A-10 Nanhak Teli, A-I 1 Naresh Chamar and A-I 2 Ramashish Mahto; (b) convicted A-5 Bir Kuer Paswan, A-8 Krishna Mochi, A-9 Dharmendra Singh@ Dharu Singh, A-13 Nanhe Lal Mochi and sentenced to death; (c) convicted A-2 Bihari Manjhi, A-4 Ramautar Dusadh @ Lakhan Dusadh, A-6 Rajendra Paswan, A-7 Wakil Yadav and imposed life imprisonment; (d) convicted A-3 Ravindra Singh and imposed RI for ten years. He has not filed any appeal. A-2 Bihari Manjhi, A-4 Rarnautar Dusadh @ Lakhan Dusadh, A-6 Rajendra Paswan and A-7 Wakil Yadav have challenged impugned judgment and order in Criminal Appeals No. 752 and 765 of 2001 and by a separate judgment of even date, these accused stand acquitted by this Court on the ground that there is no evidence against them except the confessional statement ofA-2 Bihari Manjhi which we have not relied upon for the reasons recorded therein. By this judgment and order, Criminal Appeal No.

761 of 2001 filed by A-5 Bir Kuer Paswru1 alias Beer Kuer Dusadh, A-8 Krishna Mochi, A-9 Dharmendra Singh alias Dharu Singh, A-13 Nanhe Lal Mochi and the Death Reference No. I of2001 filed by the State against these accused, are disposedof. In heinous crime, where 35 persons lost their lives, prosecution has not examined the informant Satendra Kumar Sharma, therefore, it would be difficult to refer to the contents of the FIR. However, we would refer to evidence of PW33 Vijay Pratap Singh, Inspector, who was station-in-charge of police station Tekari. It is his say that on 12th February, 1992 at about 10. 00 P. M. when he was ready for patrolling, all of a sudden he heard noise of explosions. He, therefore, along with the sub-inspector and other available armed force jawans left the police station for finding out as to what has . ;_ happened. On the way, he met Sidheshwar Yadav, who was the mukhia of the village but he was not having any information with regard to the incident.

He along with Sidheshwar Yadav started for going ahead. After going at some distance, they saw that the sky was red because of flames. Thereafter, they approached village Dihura and saw one Krishna Yadav and Bhola Paswan, Chowkidars of the village and Ram Yogesh Singh, Dafadar. PW33 enquired from them about the lit up village towards the east of village Dihura. It is his say that they were frightened and informed him that some party people have attacked the village Bara. They used the word "party" for militants. As he was hearing the noises of bombs and bullets, he gave information to the Superintendent of Police who directed him to proceed towards the place of occurrence. They left the mobile jeep on the road and when they were proceeding towards village Bara they were attacked by the extremists from the western side of village Bara. Tht! y also opened fire in self defence. Meantime, Superintendent of Police reached there at about 11. 30 P. M. along with police force.

It is his say that thereafter they reached village Bara at about 1. 00 A. M. , where they heard the slogan "whoever comes near the village will be eliminated". After some shouts, one young person whose hands were tied at the back came running and on being asked he told that he was Shravan Kumar. After seeing that police has arrived, militants started running towards the East. When they entered the village there was total quiteness. They found the bridge on the canal about 200 yards east of the village. They found dead bodies of people scattered in the fields. Their hands were tied at the back and their throats were slit. Thereafter, information was conveyed immediately to Inspector General of Police, Gaya and other senior police officers. He took the injured for medical treatment at Magadh Medical College Hospital. Informant Satendra Kumar Sharma gave statement Ex. 8, which was recorded as fard-beyan. Thereafter, the formal F. l. R. Ex.

9 was written by Ram Janam Singh, Inspector of PS Tekri. It is his say that place of incident is village Bara which is about 5 km. from the police station Tekri. In the said village, there are 50 houses, out of which 5 are those of Brahmins, I of Harijan, I of Gwala community and the rest of the houses are those of bhumihar community. The militants took the villagers from their houses in the field adjacent to Shiv Mandir situated at a distance of 20 yards on the northern side of the village, from there they took them in the grass field and then to the bridge on the eastern side of the canal and after tying their hands with their own clothes killed them by slitting their throats. It is his say that one Nanhe Yadav, A-1, was arrested from Alipur bus stand on 17. 2. 1992. His statement was recorded and thereafter he was sent to judicial custody. The statement of other witnesses could not be recorded as no witness was under condition of giving statement.

Thereafter, Superintendent of Police on 17. 2. 1992 directed that the investigation of the incident should be conducted by Inspector Ram Japit Kumar. As Ram Japit Kumar was not available, investigation was handed over to Inspector Suresh Chander Sharma. In cross- . KRISHNA MOCH! v. STATE OF BIHAR [SHAH, J. ) 41 examination, he admitted that the entire investigation was conducted by Ram Japit Kumar. He had not recorded the statement of any witness including that of Chowkidars Krishna Yadav and Bhola Paswan and Dafadar Ram Yogesh Singh. He also admitted that daily diary entry no. 262 of 1992 was not with him. He admitted that he had not seen the notification of TADA. He had not taken approval of Superintendent of Police and Director General of Police before commencing investigation and he began investigation upon oral instructions of Superintendent of Police and thereafter handed over the investigation to Subhash Chander Sharma (PWI7).

He denied the suggestion that Ram Japit Kumar found the accused persons named in the FIR to be innocent and that to suppress the investigation done by Ram Japit Kumar and diary written by him, he had written an anti-dated diary and that was done to fill-up the gap of investigation carried out by Ram Japit Kumar. It is to be stated that Ram Japit Kumar is not examined by the prosecution, even though he was the Inspector of Tekri police station and it is on the record that he also conducted investigation ofthis case, nor his case diary is brought on record. PW2 Sunil Kumar, Superintendent of Police is also examined. It is his say that after receipt of the information he along with armed force reached village Bara at about 12. 15 to 12. 30 in the night on the day of incident. There he saw lot of people had been killed by slitting their throats. Some houses had also been set on fire. Some persons were lying injured and they were sent to hospital in police vehicle. On 27. 2.

1992, he received information of the arrest of Behari Manjhi of village Jhani Bigha, PS Bodhgaya. He went there and informed Behari Manjhi that whatever statement he wanted to give, he should make without fear or favour and thereafter he recorded the confessional statement of Behari Manjhi under TADA Act. That statement was recorded by Suresh Chander Sharma, Inspector PS Chandauti. Before the court, he could not identify who was Behari Manjhi. In cross-examination, he stated that all the police personnel of P. S. Tekri including the station-in-charge were involved in arresting the accused persons and that number of VIPs were visiting the place and the police officers were busy. Therefore, investigation was entrusted to Police Inspector ofP. S. Chandauti. He did not remember as to whether they took written permission to invoke TADA Act. He also stated that he cannot say that under the TADA Act investigation can be carried out only by an officer of the rank of DSP or above.

PW32 Virendra Kumar Singh, who was posted as station-in-charge of P. S. Bodhgaya, stated about arrest of Behari Manjhi, Ravindra Singh and Raghubir Kahar in connection with Bodhgaya Police Station Case No. 28/92 under the Arms Act. In cross-examination, he admitted that he is accused in a murder case and that he has filed appeal before Supreme Court for quashing of cognizance taken against him in connection with death of one Vasuki Yadav, nephew of Wakil Yadav, who is one of the accused in the present case. From the aforesaid evidence of police officers, it appears that in. a carnage where brutal and heinous murders took place, the investigation was not proper and statements were not recorded immediately for one or the other reason. The prosecution has also failed at least to examine the informant Satendra Kumar Sharma. Keeping these facts in background, I would now refer to the contentions raised by the learned counsel for the appellants.

The case of the prosecution against these convicted accused depends upon the evidence of PW5 Belmati Devi, PW6 Birendra Singh, PW7 Lavlesh Singh, PW8 Yogendra Singh, PWI I Brajesh Kumar•. PW12 Gopal Singh, PW16 ·D Ram Sagar Singh, PW18 Budhan Singh, PW19 Dhananjay Singh, PW20 Bunda Singh,·PW2l Sumiran Sharma, PW22 Krishna Devi, PW23 Rajmani Devi and PW29 Lalita Devi. Hence, rest of the evidence is not required to be discussed. Apart from these witnesses, to prove the injuries to the dead and injured witnesses, the prosecution has examined four doctors namely, PWI Dr. Kapildeo Prasad, PWI3 Dr. Arvind Kumar, PW14 Dr. Arjun Singh and PW15 Dr. Mukti Nath Singh. Learned counsel for the appellants-accused has not disputed the injuries caused to the deceased or to the witnesses, therefore, that aspect is not required to be dealt with in this appeal. f\. fr. U. R. Lalit and Mr. Sushil Kumar, senior counsel appearing on behalf of accused mainly submitted that I.

the identification of the accused is not reliable one; 2. even if it is held . that accused were present in the mob of 600- 700 persons, there is no justifiable reasons for connecting the accused with the crime; .. 3. no witness has stated that accused were armed with any dea~ly weapons; 4. no witness has stated that any of the accused took part in murder KRISHNA MOCH! v. STATE OF BIHAR [SHAH, J. ] 43 _. of any of the deceased or of causing any injury to any witness or setting fire to the houses; 5. there is no recovery of any arms or any incriminating articles from any of the accused; 6. the statements ofwitnesses are recorded after long lapse of time, mostly after more than 20-22 days; 7. all the witnesses are 'got up' witnesses. 8. none ofthe witnesses stated that accused were members ofMaoists Community Centre an extremist group; 9. in any set of circumstances, presuming that accused are identified but mere presence in the mob would not justify imposition of death sentence.

The evidence of witnesses who identified the accused before the court can be divided as under - It is the say of PWS Belmati Devi that before 8-years when they were sleeping, they heard bullets and guns booming. Some terrorists broke open their doors and entered into the house. They took her husband, whose both hands were burnt, along with them. The militants were holding torches and were shouting "long live red salute, and whoever comes in our way would be eliminated". After her attention was drawn to police statement, she stated that she could identify Raja Ram Mochi, Nand Lal Mochi, Naresh Paswan and Krishna Mochi, all residents ofBara Bhat Bigha. Thereafter, in the crossexamination, she admitted that militants came in police uniform and that they were unknown persons. She had not seen militants or naxalities earlier or subsequent to the incidenL She denied the suggestion that she had not stated . •.

before the police that militants took her husband in their laps and they were shouting slogans. She also admitted that she had not stated before the police about identifying Raja Ram, Naresh Paswan, Krishna Mochi and Nanhe Lal Mochi. In view of aforesaid admissions, no reliance can be placed upon her evidence to connect any accused with the crime. PW6 Birender Singh after narrating the facts has stated that on the day of incident, the militants took them to a place near the canal under the bridge. The militants were cutting the throats by a fasuli. Mahinder Ravi Das, Yuga! Ravi Das and Bhugal Ravi Das were amongst the militants. He was hit by fasuli on the neck, he fell down and the militants left him untouched thinking that he was dead. The names of the persons to whom he identified were given to the police. He again stated that Nanhe Yadav, Mahender Ravi Das, Yuga!

Ravi Das, Bhugal Ravi, Kirani Yadav alias Suryadev Yadav, Janeshwar Ji alias Bholaji, Vyas Ram, Akhileshwar Thakur, Girija Mochi, Naresh Chamar, - Vyas Yadav, Suresh Yadav, Vinod Singh, Dharu Singh, Ramash. ish Mahto, , Suraj Pandit, Krishna Mochi, Rajender Paswan, Ramrup Chamar were amongst the militants. He could identify only Krishna Mochi, A-8, who was present in the mob, and stated that since a long time has lapsed he cannot identify others. It is his say in the cross-examination that the persons whose names he has mentioned, were seen by him every day and that some of the militants used to come to work in their houses. It is his say that after he returned from hospital, his statement was recorded after 25 days ofthe occurrence. However, PWI7 Investigating Officer Suresh Chander Sharma has specifically stated that witness did not name Krishna Mochi among the accused persons in his police statement.

Hence, no reliance can be placed on evidence of this witness to connect any of the accused with the crime. PW29 Lalita Devi stated that the incident is of about 8-9 years old. The militants surrounded their village and they were armed with guns and ammunition~ The incident took place at 9:00 P. M. The militants entered into their house by breaking the door. Amongst the militants, she could identify Krishna, Yugal, Bugal and Nanhe Lal Mochi. Her statement was recorded after 5/6 days. She however, stated that since her eye-sight has become weak, she cannot identify anybody. EveJr'th~ugh this witness had named Krishna Mochi (A-8) and Nanhe Lal Mochi (A-3) but as she could not identify any of the accused in the p Court, her evidence is of no value. Evidenc.. e Against Appellant no. 1 Krishna Mochi (A-8) For identification of this accused, there is evidence of PW8, PW16, PW19 and PW20. PW8 Yogender Singh is another injured witness. It is his say that on 12. 2. 1992 between 9. 00 and 9.

15 p. m. extremists raided their house. He was sleeping along with his brothers Bunda Singh, Madan Singh and Mithilesh Singh and guests Nagender Singh, Satender Singh s/o Guriban Singh. All of a sudden, they heard the noise of bullets and bombs. The people of the village started running here and there. Vidya Bhushan Singh of their village KRISHNA MOCH! v. STATE OF BIHAR [SHAH, J. ] 45 ~ -' came and hid himself in their house. The extremists armed with the weapons attacked his house. When he went out of his house, he saw that there was fire everywhere. The extremists broke open the doors of their house, entered the house and tied their hands. Thereafter, the extremists took them to the canl! I and there they saw that a number of residents of the village were already - present there and the extremists were surrounding them. After reaching there, they saw Muneshwar Singh, Siaram Singh, Ashudev Singh and Suresh Singh of their village were being brought by the extremists.

Their hands were also tied at the back. Then the extremists brought some villagers from the Mandir. . , Thereafter, they started tying their legs with the help of 'dhoti' and 'ghamchi'. Thereafter, the extremists started slitting·their throats. His throat was also slit. He stated that he can identify the accused who were slitting the throats. Among those persons, there were Mahender Mochi, Yuga! Mochi, Bugal Mochi, Kirani Yadav @ Surajdev Yadav and Nanhak Teli. Further, Raja Ram, Naresh Paswan, Naresh Chamar, Kirani Yadav, Maksudan Sharm~ -~ Akhilesh Thakur, Nanhe Lal Mochi were also present at the scene ofoffence. However, he could identify only Krishna Mochi (A-8) and Nanhe Lal Mochi (A-13) out of 13 accused present in the court, but could not identify other accused because of passage of. time. He also stated that the accused identified by him were of Tola Bhat Bigha of village Bara and that they used to work in agricultural land as labourers.

It is his say in the cross-examination that he stayed in Magadh Medical College Hospital for 24 days because of injuries on throat and leg. It was also suggested to him in cross-examination that he had named the other accused falsely because of the politics of village and that he had not identified any of the accused at the time of occurrence. From the evidence of this witness, it appears that he had named number of persons but thereafter could identify only two persons. Hence, there was . ~ no reason for the witness to say that he could identify the other accused persons whom he has named. This would indicate that he falsely deposed to a large extent involving number of persons. Further, this witness has not stated Krishna Mochi's name in first part of his statement. Name of Nanhe Lal Mochi is given only as a person, who was present at the scene of occurrence.

PWl6 Ram Sagar Singh stated that militants were armed with rifles, guns and bullets, they burnt the entire village and that he can identify Mahender ;. _ Mochi, Krishna Mochi, Nanhe Lal Mochi, Yuga! Mochi, Bugal Mochi who were amongst the militants. However, he could identify only Nanhe Lal Mochi and Krishna Mochi present in the court. It is his say in cross- examination that he saw militants from the top of the roof. He denied the )-__ -J suggestion that there was a long standing dispute between him and Nanhe Lal Mochi and Krishna Mochi and, therefore, he has falsely implicated them. Next witness is PW19 Dhananjay Kumar, who also stated that extremists started slitting their throats and he was attacked with fasuli, as a result of which his left ear and throat were slit. He became unconscious and gained consciousness at medical college hospital. After regaining consciousness he informed the police about accused persons, which included Nanhe Yadav, .

Naresh Chamar, Bir Kuer Paswan, Nanhe Lal Mochi, Ramashish Mahto, Dharu Singh @ Dharmender Sip. gh, Krishna Mochi, Mahender·Ravi Das, Yugal Mochi, Bugal Mochi, Girija Mahto, Kirani Yadav, Suraj Pandit, Ramroop Chamar, Suresh Yadav, Janeshwarji @ Bhola Ji, Vinod Singh, Akhilesh Thakur, Rajinder Paswan. Thereafter, he stated that he can identify the persons whose names he has stated. He wrongly identified Nanhe Lal Mochi and Bir Kuer Paswan. However, he identified Krishna Mochi correctly and thereafter he stated that it was difficult to identify accused after 8 years. In cross-examination, to the suggestion given to him that he did not give names of Krishna Mochi and Nanhe Lal Mochi to the police, he stated that he gave their names to the police and ifthe police did not record their names, he was not knowing about it. He further denied the suggestion that there was long pending dispute about a passage through his and Dharu Singh's village.

He has also denied the suggestion that there was a dispute between him and Krishna Mochi and, therefore, he had named him. Similarly, PW20 Bunda Singh has stated that among the extremists, there were Kirani Yadav, Mahender Mochi, Maksudan Sharma, Raja Ram Mochi, Akhilesh Thakur, Nanhak Teli, Naresh Paswan, Naresh Mochi, Bugal Mochi, Yugal Mochi, Nanhe Lal Mochi and Krishna Mochi, whom: he had identified. It is his further say that Satendra Singh, the informant was member of his family. He could identify only Krishna Mochi in the Court and wrongly identified Nanhe Lal Mochi. He stated that because of long lapse of time there h. as been a change and, therefore, it was difficult for him to identify them. A suggestion was given to him in the cross-examination that there was a long standing dispute with regard to construction of road. He stated that he had not suffered any injury and that his statement was recorded after two days of the incident.

He further stated that accused Nanhe Lal Mochi and Krishna Mochi belong to Bhat Bigha and other accused _belong to various other villages. He denied the suggestion that he had not named the militants who entered in his house. KRISHNA MOCH! v STATE OF BIHAR [SHAH, J. ] 4 7 . • ... i From the aforesaid evidence, it would be apparent that almost all witnesses have named number of persons but have failed to identify them. Only one or two accused are identified in the court. Their identification parade was not held by the police. However, at the most, it can be said that PW8 and PWl6 have identified A-8 Krishna Mochi and A-13 Nanhe Lal - Moch~ PWI9 and PW20 have identified A-8 Krishna Mochi. Evidence Against Appellant no. 2 Dharmendra Singh @ Dharu Singh (A-9) PWI I Brajesh Kumar after narrating the facts of the incident stated that he saw Mahender Ravi Das, Yuga!

Mochi, Bugal Mochi, Kirani @ Surya - Dev Yadav, Janeshwar, Nanhak Teli @ Mudkatwa, Ram Janam Singh, Dharmender Singh @ Dharu Singh. He identified Dharmendra Singh @ Dharu Singh in the Court. He wrongly identified Dina Yadav as Nanhak Teli. He stated that since a lot of time has lapsed, he is unable to identify Nanhak Teli. Even though this witness had identified A-9 in the dock but his statement cannot be relied on the ground that PWI7 IO Suresh Chander Sharma has specifically stated that this witness did not name A-9 Dharu Singh @ -< Dharmender Singh in his statement given to the police. PW2J Ram Sumiran Sharma after narrating story stated that at the time of incident he could identify Nanhe Yadav, Yuga! Mochi, Bugal Mochi, Rajender Paswan, Beer Kuer Paswan, Dharu Singh @ Dharmender Singh, Suraj Pandit, Ram Janam Singh, Nahak Teli, Kirani Yadav, Vyas Ram and Vyas Yadav and that he was not remembering names of other persons to whom he identified there.

In the Court, he could identify only A-5 Beer Kuer Paswan, A-9 Dharu Singh@ Dharmender Singh and A-13 Nanhe Lal Mochi. ~ As stated above, no reliance can be placed on the evidence of PWI I. The evidence of PW21 shows that he had named number of persons seen by him at the scene of offence but in the Court he could identify only three accused including A-9. Evidence Against Appellant no. 3 Nanhe Lal Mochi (A-13) For identification of this accused, there is evidence of PW8, PW! 6, PWl8, PW21 and PW22. PW8 and PWI6 have identified A-13. Their evidence is dealt with "- ~ ..... _ ,, above. PW18 Buddhan Singh stated that at the time of offence, he saw one militant took out fasuli and slit the neck of his son Sunil Singh, Ramjanam Singh ancl Shivjanam Singh. He saw about 15 persons involved in slitting the throats ofthe people assembled there by using fasuli. He became unconscious.

It is his say that police recorded his statement and that amongst the militants there were Nanhe Lal Mochi, Yugal and Bugal, whom he identified. In the court, he identified Nanhe Lal Mochi by going close to him. In crossexamination, it was suggested to him that he had not given the name of )'. Nanhe Lal Mochi to the police and that he had not identified anybody. He +--denied the suggestion that because of an old animosity with Nanhe Lal Mochi he gave his name in the case. PW2l has also identified this witness and his evidence is dealt with above. - Next witness is PW22 Kishna Devi. After narrating the prosecution story, she stated that persons who had been killed and injured belonged to bhumihar community and that she had given the names of certain extremists :;.. but as long time had lapsed, she cannot give their names and was having difficulty in identifying them. However, she identified Nanhe Lal Mochi.

She denied the suggestion that she had not given the name of Nanhe Lal Mochi to the police amongst the persons who were present at the scene of offence. From the evidence of the aforesaid witnesses, it is apparent that despite namfo. g number of persons, they could identify only one or two persons in the Court and gave the reason that due to lapse of long time, they were not able to identify the others. "" Evidence Against Appellant no. 4 Bir Kuer Paswan (A-5) For identification of this accused, there is evidence of PW7 Lavlesh Singh and PW2l Ram Sumiran ~harma. PW7 Lavlesh Singh also narrated the prosecution version and thereafter • J stated that among the people who were slitting throats were Mohinder Mochi, Nanhak Yadav, Nanhak Teli, Bir Kunwar Paswan, Rajinded~aswan, Bugal ,).. Mochi, Yugal Mochi, Vyas Ram, Akhileshwar Thakur, Gira Verma, Kirani @ Suraj Dev Yadav and lot ofother people whose names he was not knowing.

However, in the Court, he could identify Bir Kunwar Paswan and stated that ..... KRISHNA MOCH! v. STATE OF BIHAR [SHAH, J. ] 49 ,, he cannot identify others. In the cross-examination, he stated that he had seen the accused only on the date of occurrence and that is why he had taken their names. He also used to see those people in market and used to hear their names. He further stated that Bir Kuer Paswan was not working in his village as labourer. He clarified that when militants entered his house, he became unconscious and regained consciousness at Medical College Hospital. PW2 I has also identified this accused and his evidence has been dealt with above. PW7 could identify only A-5 and PW21 could identify A-5, A- 9 and A-13. Likewise, both the witnesses named number of persons but could not identify all the named persons. In such stale ofevidence, the questiolJ would be, who could be convicted and what sentence could be awarded? This Court in Kamaksha Rai and Ors v. State of U. P.

, (1999] 8 SCC 701 dealt with the incident where large number of people exceeding 500 in number were alleged to have taken part in attacking backward class persons by upper class, and observed that considering the nature of the attack and the possibility or otherwise of the identification of these accused persons by the prosecution witnesses and bearing in mind the principles laid down by this Court in Masalti v. State of Uttar Pradesh, [1964] 8 SCR 133, which was followed in Binay Kumar Singh v. State ofBihar, (1997] 1 SCC 283, it is not safe to rely on the evidence of witnesses who speak generally and in an omnibus way without specific reference to the identity of the individuals and their specific overt acts in regard to the incident that took place in the Harijan basti. The Court also observed that as a rule of prudence it is necessary to " fix a minimum number of witnesses needed to accept the prosecution case to base a conviction.

The decision in Masalti 's case (Supra) enunciating rule of caution is well established law uniformly followed all throughout. [Re: Baddi Venkata Narasayya and Ors. v. State ofA. P.. [1998] 2 SCC 329], State of A. P. v. Thakkidirom Reddy and Ors. , (1998] 6 SCC 554 and Hukam Singh · and Ors. v. State of Rajasthan, (2000] 7 SCC 490]. The aforesaid rule of prudence is also required to be applied in the ... t. present case. As discussed above, A-9 Dharrnendra Singh alias Dharu Singh is identified by only PW2 I. There is no other corroborative piece of evidence connecting the said accused with the crime. Hence, he is required to be given benefit of doubt. ) 50 SUPREME C< URT REPORTS (2002] 3 S. C. R. For identification of rest of th1 accused i:e. A-5 Bir Kuer Paswan, A- \.. _ 8 Krishna Mochi and A-13 Nanhe . . al Mochi, there is evidence of two or more witnesses.

However, from the evidence di' cussed above, it can be stated as under; • (1) It is apparent that the in ·estigation in the present case is totally defective. The investigat ng officers have not taken any care and caution of recording the ,tatement of witnesses immediately. No identification parade ofi: :cused was held. Investigating officer is not examined. As obsen id by this Court in Jamuna Choudhary and Ors. v. State of Bih rr, AIR (1974) SC 1822, it should not be forgotten that the dt y of the Investigating Officers is not merely to bolster up a I ;osecution case with such evidence as may enable the Court to ·ecord a conviction but to bring out the real unvarnished truth. In the said case, the Court has also observed where neither he prosecution nor the defence come out with the whole and 1 ,warnished truth to enable the Court to judge where the rights ar i wrongs ofthe set of incidents lay, the courts can only try to g1 ess or conjecture to decipher the truth if possible.

But this mi 1 be done within limits to determine whether any re~sonabll doubt emerges on any point under consideration from prov, d facts and circumstances of the case. Further, this Court in ~ishore Chand v. State of Himacha/ Pradesh, AIR (1990) S< 2140 observed that indulging in free fabrication of the record is a deplorable conduct on the part of an investigating officer v hich undermines the public confidence reposed in the investigat tg agency. Therefore, greater care and circumspection are need d by the investigating agency in this regard. It is time that the investigating agencies evolve new and scientific investigating r ethods, taking aid of rapid scientific development in the field of investigation. It is also the duty of the State, i. e.

Central or S ate Governments to organise periodical refresher courses for the iJ vestigating officers to keep them abreast of the latest scientific de' ilopment in the art of investigation and the march of law so that the real offender would be brought to book and the innocent ~ -)Uld not be exposed to prosecution. (2) It is also settled law that vhen accused are charged with heinous brutal murders punishab i to the highest penalty prescribed by the Penal Code, the judic al approach in dealing with such cases KRISHNA MOCH! v. STATE OF BIHAR [SHAH, J. ] 51 has to be cautious, circumspect and careful. In case of defective investigation, the Court can rely upon the evidence led by the prosecution and connect the accused with the crime if found reliable and trustworthy. In Dilavar Hussain v.

State ofGujarat, (1991] 1 sec 253, this Court dealt with a communal riot case which was considered by the court as tragic trauma of ghastly, inhuman and beastly behaviour ofone community against another where burning, looting and killing became the order of the day, and observed - . "But sentiments or emotions, howsoever strong, are ' neither relevant nor have any place in a court oflaw. Acquittal or conviction depends on proof or otherwise of the criminological chain which invariably comprises of why, where, when, how and who. Misgiving, also, prevailed about appreciation of evidence. Without adverting to submissions suffice it to mention that credibility of witnesses has to be measured with same yardstick, whether, it is ordinary crime or a crime emanating due to communal frenzy. Law does not make any distinction either in leading of evidence or in its assessment. Rule is one and only one namely, whether depositions are honest and true.

" (3) In the present case, it can be said without any doubt that almost all witnesses have exaggerated to a large extent by naming number of persons as accused but they could identify only one or two accused. This would clearly reveal that for one or other reason, witnesses were naming number of persons as accused who were not known to them or whom they had not seen at the time of incident. In that set of circumstances, their evidence to a large extent becomes doubtful and/or tutored. (4) Nowhere the witnesses assign any specific role to the accused, except their presence in the mob at the time of offence. (5) The witnesses nowhere state that identified accused were having any weapon of offence. (6) Investigating officers have not recovered any weapon of offence or any incriminating article from the possession of any of the accused.

- In view of the aforesaid short-comings in the investigation and the evidence which only proves the presence of the accused at the scene of offence, this would not be a fit case for imposing the death penalty. In the result, appeal filed by . appellant no. 2 Dharmendra Singh alias Dharu Singh (A-9) is allowed, he is acquitted of the charges for which he was facing trial and is ordered to be released forthwith, if not required in any other case. Appeal filed by the remaining accused i. e. by appellant no. 1 Krishna Mochi (A-8), appellant no. 3 Nanhe Lal Mochi (A-13) and appellant no. 4 Bir Kuer Paswan (A-5) is partly allowed, their conviction is upheld, however, imposition of death penalty is altered to life imprisonment. r Appeal stands disposed-of accordingly. For the reasons stated above, Death Reference filed by the State of Bihar is dismissed. N. J. Appeal and death Reference dismissed. -