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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No.791 OF 2009

Vyas Ram @ Vyas Kahar & Ors. ...    Appellants

Versus

State of Bihar ...         Respondent  

With Death Reference Case (R) No.2 of 2011

State of Bihar ...     Applicant

Versus

Vyas Ram @ Vyas Kahar & Ors. ...         Respondents  

J  U  D  G  E  M  E  N  T

H.L. Gokhale J.   

This  Criminal  Appeal  No.  791/2009  filed  by  Vyas  

Kahar  alias  Vyas-jee,  Naresh  Paswan  and  Bugal  Mochi  alias  

Bugal Ravidas seeks to challenge the Death sentence awarded  

to them by the Sessions Judge-of the-Designated Court, Gaya,

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State of Bihar, by his judgment and order dated 11.02.2009 in  

C.R  Case  No.430  of  1992  arising  out  of  Tekri  PS  Case  

No.19/1992.  All of them have been convicted and sentenced to  

death  under  Section  3(1)  of  The  Terrorists  and  Disruptive  

Activities  (Prevention)  Act,  1987  (hereafter  referred  to  as  

TADA), and for life imprisonment on each count under Sections  

302 read with 149, 364 r/w 149, 307 r/w 149 of Indian Penal  

Code  (IPC  in  short),  for  rigorous  imprisonment  for  10  years  

under Section 436 r/w 149 IPC, and rigorous imprisonment for 1  

year under Section 435 r/w 149 IPC.  The Death Reference Case  

(R)  No.2 of  2011 arises out  of  the award of  death sentence  

made by the said learned Judge under Section 366 of the Code  

of Criminal Procedure, 1973 (Cr.P.C.) r/w Section 19 of TADA.

The initiation of prosecution

2. As  per  the  First  Information  Report  (FIR)  dated  

13.02.1992,  there  was  a  gruesome  carnage  in  which  35  

persons were killed, and 7 persons were injured.  All of them  

belonged to the Bhumihar  community of  village Bara,  police  

station Tekari, District Gaya, State of Bihar.  The FIR was lodged  

on the basis of the fard-bayan of the informant Satendra Kumar  

Sharma who had stated that at 9:30 pm on 12.02.92, when the  

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informant was preparing to go to  bed,  he  heard  sounds  of  

explosions and firing.  He saw the village ablaze.  About 10-15  

unknown people knocked at the door of his house violently, and  

told  him that  they had come to  pick  up one Dayanand and  

Haridwar Singh, as according to them they were hidden in one  

of the houses. When the informant opened the door, he was  

forcibly taken to the north-eastern side of the village, near a  

temple. He found many of his relatives sitting there, and their  

hands were tied at the back by the extremists.  Soon thereafter  

5-6 people including one of  the appellants,  viz.  Bugal  Mochi  

came there,  and told the other extremists  to  bring all  those  

people near the canal since their leader one Kirani Yadav had  

directed so. The ladies were sent home, and these people were  

taken  near  the  canal.   The  informant  claims  that  he  had  

overheard the  extremists  saying that  they did  not  intend to  

spare any person belonging to the Bhumihar caste. Some firing  

was heard from the west, and some of the extremists, including  

Bugal  Mochi  fearing  the  arrival  of  police  started  slitting  the  

necks of people. The informant somehow managed to escape,  

though he lists some 37 persons whose dead bodies he claims  

to have seen.  He also mentions the name of 8 injured people.  

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The extremists retreated soon after  the  arrival  of  police,  

shouting  slogans  of  “MCC  (Maoist  Communist  Centre)  

zindabad”.  According to him there were about 500 extremists  

in all,  out of whom some 300 were armed with firearms and  

explosives, and many were in police uniform.  He named 34  

people in the FIR including two of the appellants viz. Vyas Ram  

and  Bugal  Mochi,  but  the  name  of  Naresh  Paswan  is  not  

mentioned.  

3. On  the  statement  of  the  informant,  the  police  

registered the case under Sections 3, 4 and 5 of TADA, and  

under Sections 147, 148, 149, 302, 307, 326, 436, 452, 341  

and 342 of IPC.  During the investigation,  many arrests were  

made,  and  the  confessional  statement  of  Bihari  Manjhi  was  

recorded.  After  further  investigation  the  charge-sheet  was  

submitted against as many as 119 persons, out of whom 13  

were  brought  to  trial,  showing  the  remaining  persons  as  

absconders.

Proceeding of the trial at the earlier stage   

4.  The learned Designated Judge who conducted the  

trial  of  the  Case C.R.  No.430 of  1992,  by  his  judgment  and  

order  dated  8.6.2001,  acquitted  four  of  these  accused  viz.  

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Nanhey  Yadav,  Nanak  Teli, Naresh  Chamar  and  

Ramashish  Mahto.   Four  other  accused  viz.  Krishna  Mochi,  

Dharmendra Singh alias Dharu Singh,  Nanhey Lal  Mochi  and  

Veer Kuer Paswan alias Veer Kuer Dusadh were sentenced to  

death under Section 3(1) of TADA, and for  life imprisonment  

under Section 302 r/w 149 of IPC.  Their death sentence was  

confirmed  by  a  bench  of  three  judges  of  this  Court  by  a  

majority of two versus one, on 15.04.2002 in Criminal Appeal  

No.761 of 2001 read with Death Reference No.1 of 2001 i.e.  

Krishna Mochi and Others v. State of Bihar  reported in  

2002 (6) SCC 81 (wherein the Senior Judge on the bench viz.  

Hon’ble Mr. Justice M.B. Shah, rendered a separate judgment  

acquitting  Dharmendra  Singh  and  commuting  the  death  

sentence of the other three to life imprisonment).     

5.  Another group of accused facing the said trial viz.  

Bihari Manjhi, Ramautar Dusadh alias Lakhan Dusadh, Rajendra  

Paswan and Wakil Yadav though convicted under Section 3(1)  

of TADA, were sentenced to rigorous imprisonment for life on  

each count. Bihari Manjhi, Ramautar Dusadh and Wakil Yadav  

filed one appeal,  and Rajendra Paswan filed a separate one.  

Both  these  appeals  were  heard  together  and  allowed.  Their  

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conviction  and  sentence  was set  aside  by  this  Court  in  a  

unanimous  judgment  of  the  same  bench  of  three  judges  

rendered on the same day i.e.  15.04.2002 in  Bihari Manjhi  

and  Others  v.  State  of  Bihar  and Rajendra  Paswan v.  

State of Bihar, reported in 2002 (4) SCC 352.  

Acquittal  of  three  other  accused  in  the  present  

proceeding  

6. Three other accused viz. Tyagi Manjhi alias Tyagi-jee,  

Vijay Yadav and Madhusudan Sharma, were tried along with the  

present  appellants  subsequently,  as  all  of  them  were  

absconding at the time of the earlier  mentioned proceeding.  

The  charges  were  framed  against  them  on  15.04.04.  As  

reflected in the presently impugned judgment and order, all the  

accused pleaded to be not guilty, and took the defence of false  

implication.  At the end of the trial, the above referred Tyagi  

Manjhi,  Vijay Yadav and Madhusudan Sharma were acquitted  

for  want  of  sufficient  evidence.  The  three  appellants  herein  

were,  however,  held guilty  and sentenced to death amongst  

other punishments as mentioned earlier.

7. The  designated  court  observed  that  as  far  as  the  

accused, Tyagi Manjhi and Vijay Yadav were concerned, both of  

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them had been named in the confessional  statement  of  

Bihari  Manjhi  but  that  confession  was  not  accepted  to  be  

reliable by the Supreme Court in Bihari Manjhi and Others v.  

State of Bihar (supra). The aforesaid confessional statement  

had not been produced before Chief Judicial Magistrate while  

producing the accused Bihari Manjhi before him, and the said  

statement was produced for the first time at the time of the  

trial i.e. after a lapse of five years from the date of its alleged  

recording.  Thus  it  was  hit  by  rule  15  of  TADA  (Prevention)  

Rules,  1987.  In  the  absence  of  other  evidence,  these  two  

accused  were  therefore  acquitted,  as  it  was  held  that  the  

prosecution had not  been able to prove the charges against  

them. As far as Madhusudan was concerned, he was named in  

the  FIR  at  serial  no.5.  The  only  prosecution  witness,  PW2,  

Birendra Singh who had named him as one of the accused who  

had slit throats of the deceased, had failed to identify him in  

the dock. There was no other evidence to throw light on his  

participation in this incident. Madhusudan was also accordingly  

acquitted.

Prosecution case against the present appellants

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8. Appellant No.1 Vyas Ram  who  was  named  in  the  

FIR at serial no.1 had been identified by PW-2, Birendra Singh.  

He  had  identified  him  in  the  dock  also.  He  had  also  been  

identified by PW-16 Brajesh Kumar,  and PW-17 Bunda Singh  

who had identified all  the appellants in  the dock.   Appellant  

No.3 Bugal Mochi had been identified by PW-2, PW-3 Lawlesh  

Singh and PW-15 Ram Sagar Singh apart from PW-16 and PW-

17.  Appellant No.2 Naresh Paswan was also identified by all of  

these witnesses except PW-3.

9. The  evidence  of  these  prosecution  witnesses  was  

held to be sufficient  to show their  participation in the crime  

since they were held to be members of an unlawful assembly,  

and were sentenced to death under Section 3(1) of TADA, and  

for  life  imprisonment  on  each count  under  Sections  302 r/w  

149,  364  r/w  149,  307  r/w  149  of  I.P.C,  and  for  rigorous  

imprisonment for 10 years under Section 436 r/w 149 IPC and  

rigorous imprisonment for 1 year under Section 435 r/w 149  

IPC.

Submissions by the appellants

10. The main grounds raised by the learned counsel for  

the appellants Ms. Kamini Jaiswal to challenge the impugned  

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order  are the non application of  TADA in  the  present  case,  

the  effect  of  the  amended  Section  20A  of  TADA,  unreliable  

investigation especially in the light of the non examination of  

the informant, and the belated recording of the statement of  

the  witnesses.  The  learned  counsel  for  the  appellants,  has  

referred  to  the  supplementing  opinion  of  Katju  J.  in  Vijay  

Kumar Baldev Sharma v. State of Maharashtra reported in  

2007 (12) SCC 687,  and submitted that after TADA came to  

an  automatic  end  on  24.05.1995,  and  when  there  was  no  

further extension of the period for which the act would remain  

in force, the continuation of the   proceeding thereafter was  

clearly violative of the constitution.

11. It was further submitted that the prosecution had not  

been  able  to  prove  the  notification  of  the  notified  area  as  

required  under  Section  2(f)  of  TADA,  and  therefore,  the  

constitution of the designated court for this area under Section  

9(1) of the act was bad.  Section 9(1) of the TADA lays down  

that “The Central Government or the State Government may by  

notification  in  the  official  Gazette  constitute  one  or  more  

designated courts, for such an area or areas or for such case or  

class or group of cases as may be specified in the Notification.”  

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It  is,  therefore,  necessary  to prove  that  the  area/district  

where the occurrence took place is notified under Section 2(f)  

to invoke TADA.

12. The learned counsel for appellants also relied on the  

amended  Section  20A  which  came into  existence  on  22-05-

1993.  According to Section 20A(1) no information in the form  

of  FIR  can  be  recorded  by  the  police  without  prior  written  

approval of the District Superintendent of the police.  That is  

the  condition  precedent  for  recording  of  the  FIR,  and  no  

cognizance of an offence can be taken without compliance of  

Section 20A(1).   It  was contended that  in  Hitendra Vishnu  

Thakur v. State of Maharashtra reported in AIR 1994 SC  

2623,  this Court has held that the amended Section 20A had  

retrospective effect.  

13. However,  most  of  these  arguments  have  already  

been  rejected  by  the  relevant  observations  in  the  majority  

judgment of this Court in Death reference 1/2001, i.e. Krishna  

Mochi’s case (supra) decided on 15.04.02. Besides as far as  

applicability  of  Section 20A is  concerned,  the submission  on  

behalf of the appellant is not wholly correct.  In fact at the end  

of paragraph 25 of  Hitendra Thakur (supra),  this court has  

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held  that  the  amendment  of 1993 would apply to the cases  

which were pending investigation on 22.5.1993, and in which  

the challan had not been filed in Court till  then. The present  

case  was  registered  on  13.02.1992,  the  charge-sheet  was  

submitted on 12.02.1993, and the cognizance was taken 6 days  

thereafter i.e. on 18.02.1993. Thus, all these steps were taken  

before coming into force of the amendment act.  Therefore, the  

appellants  cannot  claim  the  benefit  of  the  amendment,  nor  

does the case cited by them come to their rescue.

14. Non-examination  of  the  informant  is  once  again  

stressed  by  the  appellants  in  defence.  The  informant  is,  as  

claimed by  the  appellants,  a  member  of  Sawarna Liberation  

Front, and was the accused in the carnage known as Miyanpur  

Narsanghar.  Non  examination  of  S.I.  Ram  Japit  Kumar  also  

weakens  the  prosecution’s  case,  because  according  to  the  

counsel for appellants he was entrusted with the preliminary  

investigation,  but neither the case diary was brought in,  nor  

was he examined.

15. The learned senior counsel for the State Mr. Rai on  

the  other  hand  submitted  that  the  above  submission  is  

completely  misconceived,  and  reiterated  the  findings  of  the  

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Apex  Court  in  para  35  of Krishna  Mochi  v.  State  

(supra) viz. that an F.I.R is not a substantial piece of evidence,  

and  non-examination  of  the  informant  would  not  entitle  the  

appellants to an order of acquittal on this ground alone.  The  

case should be examined on the basis of the evidence led by  

the  prosecution.   The  carnage  of  Miyanpur  had taken place  

after  the  carnage  in  the  present  case.  The  prosecution  

witnesses in the present case had supported the Fard-Bayan.  

As far as non-examination of Ram Japit Kumar is concerned, it  

was  submitted  that  he  was  directed  to  investigate  the  case  

under the verbal orders of Suptd. of Police, Gaya.  However,  

Ram Japit Kumar never made himself available for taking over  

the investigation of the case, and then the investigation was  

consequently entrusted to Suresh Chander Sharma, who had  

been examined as a prosecution witness (PW-21).  This has also  

been observed in para 36 of the judgment in  Krishna Mochi  

(supra).

16. Furthermore, the appellants have stressed upon the  

fact that no particular role was assigned to them, and in such a  

scenario there cannot be any conviction, leave aside the death  

sentence, for merely being present in the unlawful assembly at  

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the  place  of  incident.  In Baladin  v.  State  of  U.P  

reported in AIR 1956 SC 181 a bench of three Judges held in  

paragraph 19 as follows:-

“19. …  It  is  well  settled  that  mere  presence in an assembly does not make such   a person a member of an unlawful assembly   unless  it  is  shown  that  he  had  done   something or omitted to do something which   would  make him a member  of  an  unlawful   assembly,  or  unless  the  case  falls  under   section 142, Indian Penal Code.”

The Court was concerned with a trial of some 57 persons for  

murder of 6 persons,  out of whom 36 were convicted under  

Sections 148, 201/149 and 302/149 IPC, and 9 of whom were  

sentenced  to  death,  and  others  were  given  different  

punishments  for  the  roles  assigned  to  them.   This  court  

examined the evidence, and upheld their sentences including  

death.  Where some specific role was attributed to some of the  

accused like inciting the mob, the court held in paragraph 24 of  

the judgment that the theory of the person being a mere sight-

seer will not help them.  However, at the same time, where the  

court found that four of the appellants had not been assigned  

any particular  part  in the occurrence,  nor any overt act had  

been attributed to them, they were given benefit of doubt and  

acquitted.  The  court  held  in  paragraph  28  that  “they  might  

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possibly have been spectators who  got  mixed  up  in  the  

crowd.”   

17. In  Masalti v. State of U.P. reported in  AIR 1965  

SC 202, the accused had brutally killed one Gayadin and four  

members of his family, and then set the bodies on fire in the  

middle of the field. This had happened due to rivalry between  

two factions. F.I.R disclosed 35 persons as assailants and five  

more persons were added to the list by a subsequent committal  

order  leading  to  the  charges  being  framed  against  all  40  

persons. A bench of four judges of this Court did not accept the  

defence  that  specific  role  had  not  been  attributed  to  the  

accused,  and that  the mere presence of  the accused in  the  

unlawful assembly at the time of the incident does not justify  

the  imposition  of  death  sentence.   However,  as  a  rule  of  

prudence, the court fixed the minimum number of witnesses  

needed to accept prosecution case to base a conviction on.  It  

was emphasised by the court that it was unsafe to rely on the  

evidence  of  persons  who  spoke  generally  without  specific  

reference to the identity of the individuals, and their overt acts  

that took place in the course of incident.  This judgment laid  

down the principle of common liability viz., that where a crowd  

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of  assailants,  who  were  the members  of  an  unlawful  

assembly  proceed  to  commit  a  crime,  in  pursuance  of  the  

common object of that assembly, it is often not possible for the  

witnesses to describe the actual part played by each one of  

them, and when a large crowd of persons armed with weapons  

assaults the intended victims, it may not be necessary that all  

of them have to take part in the actual assault. In that case  

several  weapons  were  carried  by  different  members  of  the  

unlawful assembly, and an accused who was the member of  

such an assembly and was carrying firearms was not permitted  

to take any advantage of the fact that he did not use those  

firearms,  though other  members  of  the  assembly  used their  

respective firearms.

18. Thus, the defining ingredient for the involvement of  

the accused would be the common intention.  Section-149 of  

I.P.C makes it amply 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, at the time of the committing  

of that offence is a member of the same assembly, is guilty of  

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that offence.  Masalti (supra) emphatically brings home the  

principle that the punishment prescribed by Section-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.   At the same time we cannot ignore the  

law as laid down in Baladin (supra) that if a person is a mere  

bystander, and no specific role is attributed to him, he may not  

come under the wide sweep of Section 149.

19. The submission of the appellants which does merit a  

close  scrutiny  and  a  thorough  examination  by  the  court  is,  

however,  concerning  the  allegedly  faulty  investigation,  

especially  the  failure  of  the  prosecution  to  conduct  a  Test  

Identification Parade, and the delay in recording the statements  

of the witnesses which according to them rendered the entire  

alleged identification of the appellants doubtful. The appellants  

claim to be entitled to the benefit of doubt as it is dangerous to  

uphold  the  death  sentence of  the  appellants  on  such  shaky  

evidence. The appellants draw support from a judgment in the  

case of Jamuna Chaudhary v. State of Bihar reported in AIR  

1974 SC 1822.  In  that  case  benefit  of  doubt  was  given to  

some of the accused in view of the unsatisfactory material on  

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record. At the same time, we must  also  note  that  in  that  

very matter where there was evidence of an injured witness,  

deposing  against  the  accused,  the  same was  accepted.  The  

appellants have also drawn the attention of the court to the  

fact that a set of persons who were accused in the same case  

had been acquitted in the case of Bihari Manjhi and Others  

v. State (supra).  However, here the bone of contention is with  

respect to their participation itself, in the light of the deficiency  

in  the  investigation.  Those  deficiencies  also  find  a  place  in  

Hon’ble Mr. Justice Shah’s observations in the Krishna Mochi  

case (supra).  

Deficiencies in the prosecution:-

Non  examination  of  Investigating  Officer,  Non  submission of his case records

20. Suresh Chander Sharma (PW21) who had taken over  

the investigation after Ram Japit  Kumar, had admitted in his  

cross  examination  that  the  entire  investigation  had  been  

conducted by Ram Japit Kumar. PW 21 had not recorded the  

statements of many witnesses including the three chowkidaars  

who were the first  to  meet  inspector  Vijay Pratap Singh the  

then Station Incharge, and report the incident to him when he  

had come on  patrolling,  and heard the  sounds  of  firing  and  

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explosion.  The  investigation conducted  by  Ram  Japit  had  

never  been  brought  on  record  nor  was  his  case  diary  

submitted. PW21 had also admitted that the case diary was not  

with him, and that he had not seen the notification under TADA  

(para  61).  It  was  also  admitted  that  investigation  has  been  

done on the oral instructions of the Superintendent of Police  

without  the  necessary  written  orders  from  him  or  Director  

General of Police.

Statement of the SP  

21. According to the statement of the Superintendent of  

Police  Sunil  Kumar,  he  received  the  information  of  Bihari  

Manjhi’s arrest on 27.2.1992, and he went there to record the  

statement. He claims to have met Bihari Manjhi and told him to  

make his statement without fear or favour, and Bihari Manjhi  

did so. However, the same officer was not able to identify Bihari  

Manjhi  in  the Court.   Moreover,  the police  personnel  of  P.S.  

Tekari  were busy in  making arrests,  and a  number  of  V.I.Ps  

were  visiting.   So  the  investigation  had  been  entrusted  to  

Suresh  Chander  Sharma,  Inspector  from  Chandauti  Police  

Station.  Surprisingly,  he does not remember whether written  

permission,  to  invoke  TADA  was  taken  or  not,  and  whether  

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under  TADA  the  investigation had to be carried out only by  

an officer of rank of DSP or above.

Station in-charge of Police Station Bodh Gaya, Virendra  Kumar Singh.

22. He  admitted that he was an accused in the murder  

case   of  Vasuki  Yadav,  nephew of  Vakil  Yadav,  (one  of  the  

accused in the present case), and had filed a petition before  

the Supreme Court for quashing the cognizance taken against  

him in that case.   

23. Hon’ble Mr. Justice Shah had drawn support from the  

principle  laid  down  in  Masalti’s case  to  emphasise  the  

impossibility  of  basing  the  conviction  on  such  shaky  

investigation. Such a view had been taken in a catena of other  

judgments, like  Kamaksha Rai v. State of U.P., reported in  

1999  (8)  SCC  701.  These  principles  were  also  followed  in  

Binay Kumar Singh v. State of Bihar reported in  1997(1)  

SCC 283.

24. The delay in recording the statements of witnesses  

by  the  Investigating  Officer  and  absence  of  the  Test  

Identification Parade were also instrumental in demolishing the  

credibility  of  the  investigation,  and  thus  led  to  Hon’ble  Mr.  

Justice Shah’s dissenting opinion.  

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Analysis of the evidence on record

25. In the present case, as per the statement of PW 21  

Suresh Chander Sharma the investigation prior to him had been  

conducted  by  PW22,  Vijay  Pratap  Singh  who  was  the  sub  

inspector and the officer incharge of Tekari Police station at the  

time  of  occurrence,  as  Ram  Japit  who  had  originally  been  

entrusted with the investigation had fallen ill. He further adds  

that case diary from para 1- 222 had been recorded by PW22  

and the rest, from 223 to 538, by himself. He does not know  

whether  S.P  wrote  any  letter  to  the  government  for  the  

invocation of TADA. PW 22 was the one who was the officer  

incharge of the Tekari P.S, and had gone for routine patrol at  

about 9 p.m. on 12.2.92, when he heard sounds of explosion.  

He heard from the Mukhia Sideshwar Yadav, whom he met on  

the way, that explosion was taking place in the north. On going  

there, he met three chowkidaars, Krishna Yadav, Bhola Paswan  

and Dafadar Ramparwesh Singh who told him that ‘partywalas’  

had  come,  and  set  the  village  on  fire,  and  were  terrorising  

people by firing and exploding bombs.  Interestingly,  none of  

these people, through whom the police had come to know of  

the incident, were examined.  Their fard bayan was not taken.  

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PW  22  has  stated  in  his deposition  that  he  informed  

the SP of the gravity of the situation, and the SP came at the  

place  of  occurrence  with  his  force  and  they  all  proceeded  

further.  At  this  point  of  time,  they were approached by one  

Sarwan Kumar, who had come running to them, after coming to  

know that they were police officers. His hands were tied at his  

back, he told them that extremists had come to the village, and  

had proceeded toward the east.  Sarwan Kumar was also not  

examined. The reason given for this by PW22 is that Sarwan  

Kumar did not give the entire account of the happening, and  

because the entire village was on fire. The statements of none  

of  the  women  who  were  weeping  near  the  culvert  were  

recorded  either.  Understandably,  they  were  very  upset,  and  

possibly not in the position to give their statements.  However,  

this does not explain as to why the statements of none of those  

people from whom the police had originally come to know of  

the  incident,  had  been  recorded,  and  why  the  F.I.R  was  

recorded on the Fard bayan of the informant Satyendra Sharma  

later  at  3  a.m.  in  the  morning  when  the  chowkidaars,  the  

mukhiya  and  Sarwan  Singh  had  much  earlier  informed  the  

police about  the  incident.  In  fact  statements  of  none of  the  

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women,  and  persons belonging to the communities  

of Brahmans, schedule castes or Yadavs were recorded by PW-

22.

26. PW 22 claims to have taken over the investigation  

after  Ram  Japit  Kumar  was  not  available  at  the  place  of  

occurrence, but he did not have any written orders or approval  

for  proceeding  with  the  investigation.  In  para  28  of  his  

deposition it is also revealed that none of the material exhibits  

of the case were submitted to the Court as the Malkhana had  

been attacked by the extremists in 1996,  and all  its  articles  

were,  consequently  destroyed.  In  para  35  of  his  cross  

examination he had admitted that it had been recorded in para  

23 of the police case diary that Ram Japit was busy with the  

investigation.  In para 2 of the case diary it was mentioned that  

investigation of this case had been endorsed by the SP to Ram  

Japit  Kumar  who  was  at  the  place  of  occurrence.  This  

contradicts  his  statement  (para  26)  that  Ram Japit  was  not  

available at the place of occurrence.

27. In para 43, PW22 admits that no T.I.P was conducted  

of any suspect. PW22 investigated the case for only 8 days, and  

did not mention any time and place of the examination of any  

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of  the  witnesses.  There  are also  discrepancies  in  the  

depositions of PW21 and PW22 as far  as the extent of case  

diary recorded by PW22 is concerned. PW 21 has stated it to be  

from para 1-222, while PW22 has stated it to be from 2-22 in  

para 27, and in para 40, he has stated it to be from 1-212. In  

addition to this, no seizure list was prepared.  In the deposition  

of PW 20, it was found that informant was never seen after the  

recording of fard bayan and further statement. In para 12 he  

also states that there was no need for obtaining sanction from  

government for invoking TADA as there was provision to that  

effect. He did not specify the provision.  

With evidence being in such a state, the question would  be - who could be convicted ?

28. We cannot forget that in Krishna Mochi (supra) the  

accused were tried on the basis of same FIR, and two Judges in  

a  bench  of  three  upheld  the  conviction  of  Krishna  Mochi,  

Dharmendra Singh,  Nanhe Lal  Mochi  and Veer  Kuer  Paswan.  

Hon’ble Mr. Justice M.B. Shah, in paragraph 96 of his judgment,  

noted that the investigation was totally defective, the witnesses  

had exaggerated to a large extent, they had not assigned any  

specific role to the accused except their presence in the mob at  

the time of  offence,  they nowhere stated that  the identified  

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accused  were  having  any weapon  of  offence,  and  the  

investigating officers had not recovered any weapon of offence  

or any incriminating article from their possession.  In paragraph  

96 (2) he referred to  Dilavar Hussain v. State of Gujarat  

1991 (1) SCC 253 and observed that when the accused are  

charged with heinous brutal murders punishable with highest  

penalty, the judicial approach in such cases has to be cautious,  

circumspect and careful.   He acquitted Dharmendra Singh.  As  

far as the other accused were concerned, although he upheld  

that  conviction,  presumably  in  view of  the  oral  evidence on  

record,  in  view of  the deficiencies  noted by him,  he altered  

their death sentence to life imprisonment.

29. In the present case, even if we decide to ignore the  

similar deficiencies in the prosecution, and look into the oral  

evidence which has come on record, the case of prosecution  

against  appellant  no:  2,  Naresh Paswan is  rather  weak.   His  

name was not mentioned in the FIR.  PW-2 Birendra Singh who  

is an injured witness, though states in the dock that he had  

seen the  appellants  slitting the throats,  he failed  to  identify  

Naresh Paswan in Court.  None of the other witnesses including  

PW-3  Lawlesh  Singh,  who  is  another  injured  witness,  have  

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attributed  any  role  to  him. None of them said that he was  

a member of MCC.  It is material to note that Madhusudan who  

was named at Sr. No.5 in the FIR also faced a similar allegation.  

It was PW-2 Birendra Singh who named Madhusudan as one of  

the accused who slit the throats of the deceased, but had failed  

to identify him in the dock.  In the absence of other witnesses  

throwing  any  light  on  his  participation  in  the  occurrence,  

Madhusudan was acquitted by the learned designated Judge.  

In  paragraph  39  of  his  judgment  in  Krishna Mochi (supra)  

Hon’ble Mr. Justice Aggarwal, rejected the theory of some of the  

accused  being  mere  sight-seers.   This  was  because,  as  the  

paragraph indicates, a specific role was attributed to them such  

as entering into the houses by breaking open the doors, and  

forcibly taking the inmates, tying their hands and taking them  

to the temple and thereafter near to the canal, where their legs  

were  tied,  and  thereafter  killing  some  of  them.   As  far  as  

Naresh Paswan is concerned, no such role is attributed to him  

by  any  of  the  witnesses.   This  being  so,  Naresh  Paswan  is  

entitled  to  have  the  same  yardstick  applied  to  him  as  was  

applied  to  Madhusudan.  In  the  circumstances,  in  our  view,  

Naresh Paswan deserves an acquittal.   

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30.  As far as the other appellant no.3, Bugal Mochi is  

concerned, in addition to his name being mentioned in the FIR  

as one who was slitting the throats, he was identified by PW-2  

injured  witness  Birendra  Singh  in  Court.   Bugal  Mochi  is  

attributed the role of slitting the throats by Birendra Singh in  

his oral deposition.  Though other witnesses did not attribute  

any  specific  role  to  him,  he  was  identified  by  them  as  a  

participant in the crime.

31.  As far  as appellant  no.1,  Vyas Ram is  concerned,  

though his name was mentioned in the FIR, the heinous act of  

slitting the throats was not attributed to him in the FIR.  PW-2,  

Birendra Singh has however stated in oral evidence that Vyas  

Ram was slitting the throats, and he identified him in the court  

as well, though no other witness has attributed any particular  

role  to  him.   Birendra  Singh  being  an  injured  witness,  his  

testimony cannot be ignored.  It is true that his testimony was  

not accepted in  Krishna Mochi, but that was so with respect  

to  other  accused.   In  the  present  case,  he  has  attributed a  

specific  role  to  these  two  accused.   There  is  no  reason  to  

discard  his  evidence.  The  conviction  of  these  two  accused  

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under Section 302 of IPC and other charges will  have to be  

upheld.

Question of sentence

32. Then comes the  question  of  sentence  to  appellant  

nos.1 and 3 i.e. Vyas Ram and Bugal Mochi.  It is true that in  

Krishna Mochi (supra), by a majority of two versus one, the  

crime in the instant case was held to be one which deserved  

the extreme penalty of death.  This was apparently on the lines  

of the judgment of the Constitution Bench in Bachan Singh v.  

State of Punjab 1980 (2) SCC 684 as being one belonging to  

the rarest of the rare category.  We have, however, to note that  

as far as the present trial is concerned, the occurrence of the  

crime is of February 1992 and the charges were framed in May  

2004.  More than nine years have gone thereafter also, and the  

appellants have been facing the trauma of the crime and the  

trial all this period.  Besides, as noted earlier, the manner in  

which  the  investigation  has  proceeded  was  far  from  

satisfactory.   In  all  cases  where  death  sentences  are  to  be  

awarded, the circumstances of the accused are also required to  

be  considered  as  laid  down  by  the  Constitution  Bench  in  

Bachan Singh (supra) and later by a bench of three Judges in  

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Machi  Singh  v.  State  of Punjab  1983  (3)  SCC  470.  

The leading judgment of conviction in Krishna Mochi (supra),  

was rendered by Hon’ble Aggarwal J., and he noted in para 33  

of his judgment that in the present case there was more or less  

a  caste  war  between  the  haves  and  the  have  nots.  The  

appellants belonged to the latter category. The present incident  

was claimed to be a retaliatory attack by the members of MCC.  

They are essentially  the persons belonging to the scheduled  

castes  and  backward  classes,  and  economically  weaker  and  

exploited sections of society.  The attack was supposed to be in  

retaliation to an earlier attack by the Bhumihar community, led  

by the Ranvir Sena.  It must also be noted that none of the  

witnesses  have  attributed  to  these  appellants  that  they  

belonged to  the MCC.   It  is  quite  possible  that  due to  their  

poverty and caste conflict in the villages they were drawn in  

the melee and participated in the crime.  At the same time no  

harm was done to women and children.  Appellant No.1 Vyas  

Ram worked with one Jamuna Singh.  No harm was done to any  

member from his family either.  This is not to say that such acts  

are to be condoned, but at the same time we have to consider  

as to whether after taking into account these circumstances of  

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the  accused,  death  sentence was  warranted.   We  do  not  

think so.

33. It was emphasised before us on behalf of the State  

that in Krishna Mochi (supra), the death sentence was upheld  

as against four accused, by a majority of two versus one, on the  

basis of an FIR which is common to the present case, and that  

this was so done by relying upon oral testimonies recorded in  

that case which are somewhat similar to those in the present  

case. In this connection we must state that though the FIR was  

common, the testimonies in the two cases are in fact different,  

and on the analysis thereof we have come to the conclusion  

that one of the accused is not guilty, however, the other two  

are , but considering the circumstances in their case the death  

sentence is not warranted.

34. Even with respect to the death sentence awarded in  

Krishna  Mochi(supra),  having  considered  the  dissenting  

opinion  rendered  by  Hon’ble  Shah  J.,  we  must  note  the  

approach adopted by this Court, subsequently, in a judgment of  

three judges in the case of Swamy Shraddananda @ Murali  

Manohar  Mishra  v.  State  of  Karnataka  reported  in  AIR  

2008 SC 3040.   A  Sessions  Court  and the  High  Court  had  

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imposed  death  sentence  on the  appellant  in  that  matter,  

and two judges of this court who heard the matter had differed  

on the issue of sentence.   The matter was referred to three  

judges.  The  Court  substituted  the  death  sentence  by  

imprisonment for life, though directed that the appellant shall  

not  be  released  till  the  rest  of  his  life.   It  was  observed in  

paragraph 37 of the judgment as follows:-

“37….. The absolute irrevocability of the  death  penalty  renders  it  completely   incompatible  to  the  slightest  hesitation  on   the part of the court…..”  

We may as well profitably refer to what was observed in para  

149 of Santosh Kumar Satishbhushan Bariyar v. State of  

Maharashtra  reported in  2009 (6) SCC 498  which is to the  

following effect:-

“149. Principle of prudence, enunciated  by  Bachan Singh is sound counsel on this   count which shall  stand us in good stead –   whenever in the given circumstances, there   is  difference of opinion with respect to any   sentencing  prop  (sic)/rationale,  or   subjectivity  involved  in  the  determining  factors, or lack of thoroughness in complying   with  the sentencing procedure,  it  would be   advisable to fall in favour of the “rule” of life   imprisonment  rather  than  invoking  the  “exception” of death punishment.”  

35. (i) In the circumstances, Crl. Appeal No.791 of 2009 is  

allowed  in  part.   The  judgment  convicting  appellant  no.2,  

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accused Naresh Paswan is set- aside,  and  he  will  stand  

acquitted.  He is acquitted of the offences for which he was  

charged, and it is ordered that he be released forthwith if not  

required in any other case.

(ii) As far as appellant nos.1 and 3, accused Vyas Ram and  

Bugal Mochi are concerned, although their conviction under the  

offences  for  which  they  were  charged  is  upheld,  the  death  

sentence awarded to them is commuted to imprisonment for  

life, which is to mean the rest of their natural life.

(iii) Consequently, the Death Reference Case (R) No.2 of 2011  

filed by State of Bihar is hereby dismissed.

…………..……………………..J.  [ A.K. Patnaik ]  

  …………………………………..J .  [ H.L. Gokhale ]

New Delhi Dated: September 20, 2013

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