# ANAND MOHAN v. STATE OF BIHAR - **Citation:** [2012] 10 S.C.R. 1 - **Court:** Supreme Court of India - **Decided:** 2012-07-10 - **Case number:** Criminal Appeal Nos. 1804-1805 of 2009 - **Bench:** A.K. Patnaik, Swatanter Kumar - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anand-mohan-v-state-of-bihar-27941 - **Pages:** 37 ## Headnote A B Penal Code, 1860 - ss. 147, 3021149, 3071149 and 3021 109 - Prosecution of 36 accused - Murder of District Magistrate - In funeral procession of political leader who was C murdered by unknown criminals - By brother of the deceased leader, at the instigation of the accused - FIR by Police Officer - Ten of the fourteen witnesses near the place of occurrence deptJsing that only A-1 exhorted the shooter and not A-2, A3 anct A-4 - Trial court convicting A-1 to A-7 of all the charges o -A-'1, A-3 and A-4 sentenced to death and A-2, A-5, A-6 and A-7 sentenced to life imprisonment - Rest of the accused acql!1tted - High Court acquitting all the accused u/ss. 147 and 3(}21149, acquitting A-2, A-3 and A-4 u/s. 3021109, and convicting A-1 uls. 3021109 - A-1 sentenced to life E imprisonment - Appeal by A-1 against conviction and by the State against acquittal order and against the order reducing sentence of A-1 - Held: Prosecution case against A-1 supporteo by prosecution witness - High Court rightly acquitted A-1 to A-7 uls. 3021149 rejecting the prosecution F case that there was unlawful assembly with the object of killing the deceased - The majority of the prosecution witnesses did not support the prosecution case that A-2, A-3 and A-4 exhorted the shooter while supported the case that A-1 exhorted the shooter - A-1 also not able to prove that he was not at the place of occurrence, the burden to prove which was G on him - He did not take such plea uls. 313 Cr.P.C. - Therefore, A-2 to A-4 rightly acquitted uls. 3021109 and A-1 rightly convicted thereunder - As the District Magistrate was 1 H 2 SUPREME COURT REPORTS [2012] 10 S.C.R. A killed as an occupant of a car by chance, on account of mob fury and since the accused was not the assailant himself, RI for life is appropriate - Code of Criminal Procedure, 1973 - s. 313 - Evidence Act, 1872 - s. 103. 8 Evidence - Evidence of exhortation, is a weak piece of evidence - Therefore, unless the evidence in this regard is clear, cogent and reliable, no conviction for abetment can be recorded - Penal Code, 1860 - s. 109. 36 accused including the appellants-accused No. 1, C were prosecuted u/ss. 147, 3021149, 307/149, 302/109. The prosecution case was that 'C' a political leader was murdered by certain unknown criminals. His funeral procession was led by A-1 (an MLA), A-2 (an M.P), A-3 and few others in their respective vehicles. A-1, A-2 and A-3 D had given speeches instigating the crowd to take revenge of the murder and teach the administration a lesson. When the procession moved further, the shouts 'Maro Maro' were heard from the midst of the procession. When the informant (a police official on duty) reached there, E found that car of the District Magistrate of some other district had turned turtle and the District Magistrate was lying on the ground. A-1, A-2, A-3 and some others were there provoking 'B' the brother of 'C' to kill the Magistrate and take revenge. 'B' fired at the Magistrate and fled F away. The Magistrate succumbed to the injuries, in the Hospital. In the meantime 15 persons, including A-1 and A-2 were arrested. The informant had sent information about the incident through wireless, soon after the incident. The informant later sent a typed report about the G incident which was lodged as FIR. H Trial Court convicted A-1 to A-7 u/ss. 147, 302/149, 307/149 and 327/149 IPC; further convicted A-1, A-2, A-3 and A-4 u/s. 302/109 IPC, and rest of the accused were acquitted of all the charges. A-1, A-3 and A-4 were ANAND MOHAN v. STATE OF BIHAR 3 sentenced to death. A-2, A-5, A-6 and A-7 were sentenced A to life imprisonment. High Court held that the prosecution was not able to establish a case of unlawful assembly with common object of causing death of the deceased, hence none of 8 the accused is liable to be convicted u/ss. 147 and 302/ 149; that A-1 alone was responsible for exhorting the lone shooter to kill the deceased and hence, he alone was guilty of the offence u/s. 302/1 ## Text _Characters 0–39,843 of 74,398. This is a partial read: ask again with offset=39843 for what follows._ [2012] 10 S.C.R. 1 ANAND MOHAN v. STATE OF BIHAR (Criminal Appeal Nos. 1804-1805 of 2009 etc.) JULY 10, 2012 [A.K. PATNAIK AND SWATANTER KUMAR, JJ.] A B Penal Code, 1860 - ss. 147, 3021149, 3071149 and 3021 109 - Prosecution of 36 accused - Murder of District Magistrate - In funeral procession of political leader who was C murdered by unknown criminals - By brother of the deceased leader, at the instigation of the accused - FIR by Police Officer - Ten of the fourteen witnesses near the place of occurrence deptJsing that only A-1 exhorted the shooter and not A-2, A3 anct A-4 - Trial court convicting A-1 to A-7 of all the charges o -A-'1, A-3 and A-4 sentenced to death and A-2, A-5, A-6 and A-7 sentenced to life imprisonment - Rest of the accused acql!1tted - High Court acquitting all the accused u/ss. 147 and 3(}21149, acquitting A-2, A-3 and A-4 u/s. 3021109, and convicting A-1 uls. 3021109 - A-1 sentenced to life E imprisonment - Appeal by A-1 against conviction and by the State against acquittal order and against the order reducing sentence of A-1 - Held: Prosecution case against A-1 supporteo by prosecution witness - High Court rightly acquitted A-1 to A-7 uls. 3021149 rejecting the prosecution F case that there was unlawful assembly with the object of killing the deceased - The majority of the prosecution witnesses did not support the prosecution case that A-2, A-3 and A-4 exhorted the shooter while supported the case that A-1 exhorted the shooter - A-1 also not able to prove that he was not at the place of occurrence, the burden to prove which was G on him - He did not take such plea uls. 313 Cr.P.C. - Therefore, A-2 to A-4 rightly acquitted uls. 3021109 and A-1 rightly convicted thereunder - As the District Magistrate was 1 H 2 SUPREME COURT REPORTS [2012] 10 S.C.R. A killed as an occupant of a car by chance, on account of mob fury and since the accused was not the assailant himself, RI for life is appropriate - Code of Criminal Procedure, 1973 - s. 313 - Evidence Act, 1872 - s. 103. 8 Evidence - Evidence of exhortation, is a weak piece of evidence - Therefore, unless the evidence in this regard is clear, cogent and reliable, no conviction for abetment can be recorded - Penal Code, 1860 - s. 109. 36 accused including the appellants-accused No. 1, C were prosecuted u/ss. 147, 3021149, 307/149, 302/109. The prosecution case was that 'C' a political leader was murdered by certain unknown criminals. His funeral procession was led by A-1 (an MLA), A-2 (an M.P), A-3 and few others in their respective vehicles. A-1, A-2 and A-3 D had given speeches instigating the crowd to take revenge of the murder and teach the administration a lesson. When the procession moved further, the shouts 'Maro Maro' were heard from the midst of the procession. When the informant (a police official on duty) reached there, E found that car of the District Magistrate of some other district had turned turtle and the District Magistrate was lying on the ground. A-1, A-2, A-3 and some others were there provoking 'B' the brother of 'C' to kill the Magistrate and take revenge. 'B' fired at the Magistrate and fled F away. The Magistrate succumbed to the injuries, in the Hospital. In the meantime 15 persons, including A-1 and A-2 were arrested. The informant had sent information about the incident through wireless, soon after the incident. The informant later sent a typed report about the G incident which was lodged as FIR. H Trial Court convicted A-1 to A-7 u/ss. 147, 302/149, 307/149 and 327/149 IPC; further convicted A-1, A-2, A-3 and A-4 u/s. 302/109 IPC, and rest of the accused were acquitted of all the charges. A-1, A-3 and A-4 were ANAND MOHAN v. STATE OF BIHAR 3 sentenced to death. A-2, A-5, A-6 and A-7 were sentenced A to life imprisonment. High Court held that the prosecution was not able to establish a case of unlawful assembly with common object of causing death of the deceased, hence none of 8 the accused is liable to be convicted u/ss. 147 and 302/ 149; that A-1 alone was responsible for exhorting the lone shooter to kill the deceased and hence, he alone was guilty of the offence u/s. 302/109 IPC. However, the court sentenced A-1 to R1 for life. Hence the present appeals by A-1 against his conviction, and by the State against C the acquittal of A-2 to A-7 and against conversion of death sentence of A-1 to life imprisonment. The appellant-accused interalia contended that the information sent through wireless disclosed the first D account of occurrence and therefore should have been treated as the FIR and not the typed report of the information which was sent later; that High Court having held that FIR was doubtful, should have disbelieved the entire prosecution case; that as per the medical evidence E the deceased was shot in a standing position belies the evidence of prosecution witnesses who stated that the deceased was shot when he was lying injured on the ground; and that High Court did not take into consideration the evidence of PW17 and PW21 the driver F and the bodyguard of the deceased, who did not support the prosecution case. Dismissing the appeals, the Court HELD: 1.1 It is clear from the language of sub-section G (1) of Section 154 Cr.P.C. that every information relating to the commission of a cognizable offence whether given in writing or reduced to writing shall be signed by the person giving it. Hence, the person who gives the information and who has to sign the information has to H 4 SUPREME COURT REPORTS [2012) 10 S.C.R. A choose which particular information relating to the commission of a cognizable offence is to be treated as an FIR. In the present case, PW-14, the informant has chosen not to treat the wireless message but the subsequent typed information as the PIR and the police s has also not treated the wireless message but the subsequent typed information as the FIR. Moreover, the wireless message sent soon after the incident was cryptic and did not sufficiently disclose the nature of the offence committed much less the identity of the persons c who committed the offence. Unless and until more information was collected on how exactly the deceased was killed, it was not mandatory for either PW-14 to lodge the same as FIR or for the Officer lncharge of a Police Station to treat the same as an FIR. The trial court and 0 the High Court have rightly treated the subsequent typed written information lodged by PW-14 and not the wireless message as the FIR. [Para 28] [26-E-H; 27-A-B, F] Sheikh lshaque and Ors. v. State of Bihar (1995) 3 SCC 392: 1995 (2)SCR 692; Binay Kumar Singh and Ors. v. E State of Bihar (1997) 1 SCC 283: 1996 (8)) Suppl. SCR 225 - relied on. 1.2. On the basis of all the evidence on record, the High Court did not accapt the version of the prosecution F that the FIR was lodged at 10.10 p.m. on 05.12.1994 and has instead rightly held that the evidence creates a reasonable suspicion about the FIR being ante-dated and ante-timed. [Para 29] [28-F-G] 1.3. If the date and time of the FIR is suspicious, the G prosecution version is not rendered vulnerable but the court is required to make a careful analysis of the evidence in support of the prosecution case. In the present case, soon after the incident, information was sent from the place of the incident to the District H ANAND MOHAN v. STATE OF BIHAR 5 Headquarters that the people mixed with the funeral A procession have injured the deceased by a revolver and fled towards Hajipur by different vehicles. At least this part of the prosecution case which finds place in the subsequent typed FIR lodged by PW-14 cannot be discarded as false. [Paras 30 and 31] [29-F-G, H; 30-A-B] B State of M.P. v. Mansingh and Ors. (2003) 10 SCC 414: 2003 (2) Suppl. SCR 460 - relied on. Ganesh Bhavan Patel v. State of Maharashtra (1978) 4 SCC 371; Marudanal Augusti v. State of Kera/a (1980) 4 C SCC 425; Awadesh v. State of M.P. AIR 1988 SC 1158: 1988 (3) SCR 513 - referred to. Erram Santosh Reddy and Ors. v. State of Andhra Pradesh (1991) 3SCC 206; Amar Singh v. Ba/winder Singh D and Ors. (2003) 2 SCC 518: 2003 (1) SCR 754; Bhaga/oo Lodh and Anr. v. State of ;Uttar Pradesh (2011 ) 13 SCC 106: 2011 (6) SCR 1037;. Om Prakash v. State of Haryana (2006) 2 sec 250: 2006 (1) SCR 423 - cited. 2. The High courr rightly rejected the contention of E the prosecution that·A-1 to A-7 were liable for conviction u/s. 302/149 IPC. The High Court also has not accepted the entire version of the FIR lodged by PW-14 and has rejected the case of the prosecution in the FIR that there was an unlawful assembly and that A-1 to A-7 were part F of that unlawful assembly with the object of killing the deceased. From the evidence on record and the circumstances it is not established that even the members of such mob shared the common object of killing the deceased. The High Court has also held that G there were no anegations that the processionists were carrying any arms and there was insufficient evidence about the exact behaviour of the assembly at the scene of occurrence. The High Court has further held that the statements of the driver and the bodyguard of the H 6 SUPREME COURT REPORTS [2012] 10 S.C.R. A deceased show that the attack on the car of the deceased and its occupants was a sudden act of the mob which had gathered to watch the funeral procession. The High C9urt has thus held that the processionists, who were going with the dead body on motor vehicle, did not have B any common object and therefore did not constitute an unlawful assembly and hence A-1 to A-7 could not be held liable for the offence under Section 302/149 IPC on the ground that they were members of an unlawful assembly which had the object of killing the deceased C or any other person. [Para 32) [30-C-H; 31-8-D] 3. Evidence of exhortation is, in the very nature of things, a weak piece of evidence and there is often quite a tendency to implicate some person in addition to the actual assailant by attributing to that person an exhortation to the D assailant to assault the victim and unless the evidence in this respect is clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. Since the majority out of the fourteen prosecution witnesses comprising both E civilian and police personnel accompanying the procession do not support the prosecution version that A2, A-3 and A-4 also exhorted the shooter to shoot at the deceased, it will not be safe to convict A-2, A-3 and A-4 for the offence of abetment of the murder of the deceased. F Therefore, the High Court was right in acquitting A-2, A-3 and A-4 of the charge under Section 302/109 IPC. [Para 34) [32-F-H; 33-A] Jainu/ Haque v. State of Bihar AIR 1974 SC 45 - relied G on. 4.1. Where a criminal court has to cieal with the evidence pertaining to the commission of offence involving large number of offenders and large number of victims, it is usual to adopt a test that the conviction could H be sustained only if it is supported by two or three or ANAND MOHAN v. STATE OF BIHAR 7 be sustained only if it is supported by two or three or A more witnesses who give ·a consistent account of the incident. In the present case, ten out of the fourteen witnesses who were accompanying the procession and were near the place of occurrence have given a consistent version that A-1 exhorted the shooter to shoot B at the deceased. PW-1, PW-3, PW-4, PW-6, PW-7, PW-8, PW-9, PW-10, PW-11 and PW-1_4, have consistently deposed that A-1 exhorted to shoot at the deceased. The remaining four witnesses may be at the place of occurrence but for some reason or the other may not c have heard the exhortation by A-1 to shoot at the deceased. Hence, just because four of the fourteen witnesses have not deposed regarding the fact of exhortation by A-1, it cannot be held that the ten witnesses have falsely deposed that A-1 had exhorted to D shoot at the deceased. [Para 35] [33-B-E] Masa/ti v. State of UP. 1964 (8) SCR 133 - relied on. 4.2. It cannot be held that the medical evidence is such as to entirely rule out the truth of the evidence of E the prosecution witnesses that the deceased was shot when he was lying injured on the ground. The evidence of the ten witnesses who have deposed that the deceased was shot when he was lying injured on the ground cannot be discarded on the ground that the F medial evidence establishes that the bullets were fired when the deceased was in the standing position. [Para 36] [33-F-G] Abdul Sayeed v. State of Madhya Pradesh (2010) 10 SCC 259: 2010(13) SCR 311; Budh Singh v. State of UP. G AIR 2006 SC 2500: 2006 (2) Suppl. SCR 715 - cited. 4.3. Both PW-17 and PW-21, the driver and the bodyguard respectively were silent with regard to. exhortation by A-1, A-2, A-3 and A-4 to shoot at the ... deceased. It appears that PW-17 and PW-21 were not H 8 SUPREME COURT REPORTS [2012] 10 S.C.R. A aware of any shooting incident at all and they were under the impression that the deceased had been injured by the assault of the mob after he was pulled out from the car. PW-17 and PW-21, do not seem to know what exactly happened after they were pulled out from the car and B beaten up by the mob. On the basis of their evidence, the court cannot discard the evidence of ten other witnesses that the deceased was shot with the revolver on the exhortation of A-1 when the medical evidence established that the cause of death of the deceased was on account C of the bullet injuries on the deceased and not the assault by the mob. Moreover, PW-17 and PW-21 may not have supported the prosecution case but their evidence also does not belie the prosecution case that the deceased was shot on the exhortation by A-1. [Para 37] [35-F; 36D C-F] 4.4. The prosecution has been able to adduce evidence through its witnesses that at the time of shooting of the deceased, A-1 was at the spot and was exhorting to shoot at the deceased. If A-1 wanted the E court to believe that at the time of the incident, he was in the car in the front of the procession and not at the spot, he should have taken this defence in his statement under Section 313 Cr.P.C. and also produced reliable evidence in support of this defence. Section 103 of the Evidence F Act, 1872 provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. If A-1 wanted the court to reject this prosecution G version as not probable, burden was on him to lead evidence that he was not at the spot and did not exhort to shoot at the deceased. Since he has not discharged this burden, the High Court was right in holding that A-1 was guilty of the offence under Section 302/109 IPC. [Para H 38] [36-H; 37-A-D] ANAND MOHAN v. STATE OF BIHAR 9 deceased was a District Magistrate, he was killed in A another district as an occupant of a car by chance, on account of mob fury and exhortation by A-1 and firing by a person and as A-1 was not the assailant himself, death sentence would not be the appropriate sentence. This was not one of those rarest of rare cases where the High B Court should have confirmed the death sentence on A1. A-1 was liable for rigorous imprisonment for life. [Para 39]. [37-E-F] Girja Prasad v. State of M.P. (2007) SCC 625; Sikandar c Singh and Ors. v. State of Bihar (2010) 7 SCC 477: 2010 (8) SCR 373; Virendra Singh v. State of Madhya Pradesh (2010) 8 SCC 407: 2010 (9) SCR 772; Rizan and Anr. v. State of Chhattisgarh (2003) 2 SCC 661: 2003 (1) SCR 457- cited. Case Law Reference: D (1991) 3 sec 206 Cited Para 15 2003 (1) SCR 754 Cited Para 15 2010 (13) SCR 311 Cited Para 16 E c2001) sec 625 Cited Para 17 2010 (8) SCR 373 Cited Para 18 2010 (9) SCR 772 Cited Para 18 F 2003 (1) SCR 457 Cited Para 19 2011 (6 ) SCR 1037 Cited Para 20 2006 (2) Suppl. SCR 715 Cited Para 23 2006 (1) SCR 423 Cited Para 25 G 1995 (2) SCR 692 Relied on Para 28 1996 (8) Suppl. SCR 225 Relied on Para 28 H 10 SUPREME COURT REPORTS [2012] 10 S.C.R. A 2003 (2) Suppl. SCR 460 Relied on Para 30 (1978) 4 sec 311 Referred to Para 30 (1980) 4 sec 425 Referred to Para 30 B 1988 (3) SCR 513 Referred to Para 30 AIR 1974 SC 45 Relied on Para 34 1964(8) SCR 133 Relied on Para 35 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal C Nos. 1804-1805 of 2009. D From the Judgment & Order dated 10.12.2008 of the High Court of Judicature at Patna in Death Reference No. 12 of 2007 and in Criminal Appeal (DB) No. 1345 of. 2007. WITH Crl. Appeal Nos. 1536, 1537, 1538, 1539, 1540, 1541, 1542 & 1806 of 2009. E Ram Jethmalani, Surinder Singh, Nagendra Rai, Ranjit Kumar, Ashok Kumar Singh, Kumar Ranjan, Shantanu Sagar, Kripa Shankar Pd., M.P. Jha, Mohit Kumar Shah, Shilpi Shah, Tungesh, Gopal Singh, Samir Ali Khan, Manish Kumar, Anant Sharma, Deepak Prabhakaran, Shaikh Chand Saheb, F Vijendra Kumar, M.P. Jha, Ram Ekbal Roy, Harshvardhan Jha, Dileep Pillai, Baban Kumar Sharma, Chandan Ramamurthi, Hari Shankar K., for the appearing parties. The Judgment of the Court was delivered by G A.K. PATNAIK, J. 1. These are all appeals by way of H special leave under Article 136 of the Constitytion against the common judgment of the Patna High Court in Death Reference No.12/2007 and Criminal Appeals (DB) Nos. 1282, 1308, 1318, 1327, 1345, 1354 of 2007. ... FACTS ANAND MOHAN v. STATE OF BIHAR [A.K. PATNAIK, J.] 11 2. The facts are that a typed report was lodged by Mohan Rajak, Deputy Superintendent of Police (East), Muzaffarpur (for short 'the informant') on 05.12.1994 at 22.10 hours (10.10 p.m.) A at PS Sadar, District Muzaffarpur (East), which was treated as 8 FIR. The prosecution case in the FIR briefly was as follows: On the night of 04.12.1994, certain unknown criminals had murdered Shri Kaushlendra Kumar Shukla @ Chhotan Shukla and his associates at NH-28 and the post mortem on Chhotan Shukla and the other deceased persons was done on 05.12.1994 at the SKM College Hospital. The supporters of C Chhotan Shukla belonging to the Bihar Peoples Party gathered in large numbers at the hospital. Considering the possibility of breakdown of law and order, the officers of the civil and police administration remained present with armed force and lathi force at the hospital. After the post mortem, the dead bodies D were taken in a procession to the house of Chhotan Shukla. The procession was led by Arun Kumar Singh, Ramesh Thakur, Shashi Shekhar Thakur, Ram Babu Singh, Harendra Kumar, Vijay Kumar Shukla @ Munna Shukla and others and was escorted by the officers of the civil and police administration. E When the procession reached the house of Chhotan Shukla, Anand Mohan, MLA, and Lovely Anand, M.P., and others who were present there, offered flowers to the dead body of Chhotan Shukla. At about 3.30 p.m., the dead body of Chottan Shukla was taken in a procession to his ancestral house in F village Jalalpur under Lalganj Thana in Vaishali district where ' about 5000 people gathered. Thereafter, the procession was led by Anand Mohan, Lovely Anand, Professor Arun Kumar Singh, Akhlak Ahmad, Harender Kumar, Rameshwar Wiplavi and others and they were all in different vehicles. Anand Mohan G and Lovely Anand were sitting in their Contessa car. An Ambassador car and a white coloured Gypsy were moving in front of the procession. When the procession reached the Bhagwanpur Chowk, the dead body of Chottan Shukla was kept for a while and Anand Mohan, Lovely Anand and Professor H 12 SUPREME COURT REPORTS [2012] 10 S.C.R. A Arun Kumar Singh gave speeches instigating the crowd to take revenge of the murder of Chhotan Shukla and others by murder and to teach the administration a lesson if it created any hurdle. After listening to the speeches, the people became aggressive. The procession then moved from Bhagwanpur Chowk towards B Ram Dayal Nagar through the National Highway. At about 4.15 p.m. when the procession came near Khabra Village on the National Highway, the shouts "Maro Maro"were heard from the midst of the procession. When the informant along with other officers rea~ed the place from where the shouts were being c heard, they found that on the right hand side of the road the Ambassador car of the District Magistrate, Gopalganj, G. Krishnaiyyah (coming from the opposite direction) had turned turtle and the Diswict Magistrate was lying on the ground. They also saw Anand Mohan, Lovely Anand, Professor Arun Kumar D Singh and some others were loudly provoking Bhutkun Shukla (brother of Chhotan Shukla) to kill the District Magistrate and take revenge. Thereafter, Bhutkun Shukla drew out a revolver from his waist and fired three shots and then escaped into the crowd. The District Magistrate got wounded. Looking at the E gravity of the situation, the Sub-Divisional Officer (East) ordered lathi charge and the police and other officers present started charging lathi at the crowd. The District Magistrate, Gopalganj, was sent in a Gypsy to the SKM College Hospital for treatment. Information was sent through wireless to the District Headquarters of Vaishali District about the incident. In F the meantime, the assailants fled to Hajipur and the informant and the Sub-Divisional Officer (East) chased the assailants and reached Hajipur where they found 15 persons including Anand Mohan and Lovely Anand caught by the Hajipur police. All the 15 persons were arrested and their vehicles were seized. After G the informant came back to Muzaffarpur, he got information that the District Magistrate, Gopalganj, died at the SKM College Hospital. 3. Pursuant to the FIR, investigation was carried out by the H police and a charge-sheet was filed against 36 accused ANAND MOHAN v. STATE OF BIHAR 13 [A.K. PATNAIK, J.] persons. The learned Chief Judicial Magistrate, Muzaffarpur, A committed the case to the Sessions Court. The Sessions Court framed charge under Section 147 and Sections 302/149 of the Indian Penal Code (for short 'the IPC') against all the 36 accused persons (A-1 to A-36) for being members of unlawful assembly with the common object of committing the murder of B the District Magistrate, Gopalganj, G. Krishnaiyyah, (for short 'the deceased') as well as the charge under Section 307/149 IPC for being a member of the unlawful assembly with the common object of attempting to commit murder of the photographer, the bodyguard and the driver of the deceased. c All the 36 accused persons were also charged for the offence under Sections 302/109 for abetting the commission of the murder of the deceased. Anand Mohan, Lovely Anand and Professor Arun Kumar Singh (A-1, A-2 and A-3 respectively) were further charged under Sections 302/114 IPC. 4. At the trial, the prosecution examined as many as 25 witnesses. PW-1 to PW-14 were police officials who claimed D to be with or behind the procession till the incident occurred. PW-15, PW-16 and PW-23 were doctors who proved the injury reports and the post mortem report. PW-17 and PW-21 are E the driver and the bodyguard of the deceased. PW-18 and PW19 are the Director and employee of the Forensic Science Laboratory, Patna, who collected the blood-stained earth and broken pieces of glass from the place of occurrence. PW-20 is the Executive Magistrate who accompanied the procession. F PW-22 is the Assistant Sub-Inspector, Muzaffarpur District, who investigated the case from 14.12.1994 to 16.12.1994. PW-25 is the Additional S.P. Muzaffarpur who investigated the case for a few hours and PW-24 is the second investigating officer. The defence also examined twelve witnesses at the trial. G 5. The Additional Sessions Judge-I, Patna (for short 'the trial court') found Anand Mohan, Lovely Anand, Professor Arun Kumar Singh, Akhlak Ahamad, Vijay Kumar Shukla @ Munna Shukla, Harendra Kumar @ Harendra Pd. Sahi and Shashi H 14 SUPREME COURT REPORTS [2012} 10 S.C.R. A Shekhar Thakur (A-1, A-2, A-3, A-4, A-5, A-6 and A-7 respectively) guilty of the offences under Sections 147, 302/ 149, 307/149 and 427/149 of the IPC. The trial court also held Anand Mohan, Lovely Anand, Professor Arun Kumar Singh and Akhlak Ahamad (A-1, A-2, A-3 and A-4 respectively) guilty of B the offence of abetment to commit murder under Sections 302/ 109 IPC. The trial court acquitted the remaining accused persons A-8 to A-36 of au the charges. After '1earing on the question of sentence, the trial court sentenced A-1, A-3 and A4 to death for the offence under Sections 302t't49 and 302/109 c of the IPC and further sentenced them for one year R.I. for the offence under Section 147 IPC, 5 years R.I. for the offence under Section 307/147 IPC and one year R.I. for the offence under Section 427/149 IPC and all the sentences were to run concurrently. The trial court, however, sentenced A-2 to life 0 imprisonment for the offences under Sections 302/149 and 302/109 IPC and a fine of Rs.25,000/-, for one year R.I. for the offence under Section 147 IPC, 5 years R.I. for the offence under Section 307/149 IPC and one year R.I. for the offence under Section 427/149 IPC and all the sentences were to run concurrently and in default of payment of fine she was to E undergo simple imprisonment for a period of two years. The trial court sentenced A-5, A-6 and A-7 for life imprisonment for the offence under Section 302/149 IPC and to pay fine of Rs.25,000/- each, R.I. for five years for the offence under Section 307/149 IPC, R.I. for one year for the offence under F Section 147 IPC and R.I. for one year for the offence under Section 427/149 IPC and in default of payment of fine to undergo simple imprisonment for two years and all the sentences were to run concurrently. G 6. The sentence of death on A-1, A-3 and A-4 were referred to the High Court. Criminal appeals were also filed by the convicts before the High Court. The High Court held in the impugned common judgment that the prosecution has not been able to establish a case of unlawful assembly with common H object of causing death of the deceased, or any other person ANAND MOHAN v. STATE OF BIHAR 15 [A.K. PATNAIK, J.] and thus there could be no conviction under Sections 147 and A 302/149 IPC. The High Court, however, held on the basis of evidence of PW-1, PW-3, PW-4, PW-9, PW-10 and PW-14 that A-1 had exhorted the lone shooter to kill the deceased and hence he alone was guilty of the offence of abetment of murder under Section 302/109 IPC. Accordingly, the High Court B acquitted A-2 to A-7 of all the charges and sustained the conviction of A-1 but converted the sentence of death on A-1 to one of rigorous imprisonment for life. 7. A~grieved, A-1 has filed Criminal Appeal No.18041805 of 2009 challenging the impugned judgment of the High C Court in so far as it sustained his conviction under Section 302/ 109 IPC and imposed the punishment of rigorous imprisonment for life. The State of Bihar has filed Criminal Appeal Nos. 1536, 1537, 1538, 1539, 1540, 1541, 1542 and 1806 of 2009 challenging the impugned judgment of the High Court insofar D as it acquitted A-2 to A-7 and insofar as it converted the death sentence on A-1 to life imprisonment. CONTENTIONS 8. Mr. Ram Jethmalani, learned senior counsel appearing for A-1 submitted that the occurrence took place at 4.15 P.M. on 05.12.1994 and soon thereafter information was sent through wireless to the· District Headquarter, Vaishali District about the incident and hence this information was the real FIR and would disclose the first account of the occurrence. He vehemently argued that this wireless message sent soon after E F the incident to the District Headquarters of District Vaishali clearly stated that the people who got mixed with the funeral procession of the cremation of Chhotan Shukla have injured the deceased by shooting him with a revolver and fled towards G Hajipur by different vehicles and this was the real FIR of the case but the High Court has not even applied its mind to this real FIR of the case. 9. He submitted that instead of this wireless message, a H 16 SUPREME COURT REPORTS (2012] 1 O S.C.R. A typed report of the informant PW-"14 has been treated as the FIR. He argued that this typed report of PW-14 treated as FIR is stated to have been lodged in th