# KRISHNA MOCHI AND ORS v. STATE OF BIHAR ETC. APRIL IS, 2002

- **Citation:** [2002] 3 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2002
- **Case number:** Criminal Appeal No. 761 of 2001
- **Bench:** M.B. Shah, B.N. Agra Wal, Arijit Pasa Yat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/krishna-mochi-and-ors-v-state-of-bihar-etc-april-is-2002-18573
- **Pages:** 52

## Headnote

B
Criminal Law:
Terrorists and Disruptive Activities (Prevention) Act, 1987/Penal Code,
1860-Section 3/Section 302 read with Section 149-Death sentence- C
Justification of-Accused belonging to militant group a/lacked members of a
particular community pursuant to conspiracy hatched-Gruesome carnage
wherein 35 persons of a 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 D
others under TADA and !PC-Four of the accused convicted under Section
302 read with Section 149 !PC and sentenced to rigorous imprisonment of life
and under Section 3 TADA with death sentence-Appeal and death referenceWhether 'rarest of rare case' warranting death sentence-Held, yes since
crime not only ghastly but also enormous in proportion as 35 persons of one
community were massacred in an extremely diabolic, revolting and dastardly E
manner which affected the normal tempo of life of the community in the
locality-Further culpability of the accused persons 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).
F
Criminal Trial :
Appreciation of evidence-Complicity of accused-Case involving large
number of offenders and large number of victims-Only few witnesses-Whether
proved by credible evidence-Held, yes since in the maller of appreciation of
evidence of witness it is not the number of witnesses but quality of evidence G
that matters-Evidence Act, 1872-Section 134.
Evidence Act, 1872 :
Evidence-Appreciation of-Duty of Court in appreciating evidenceDiscussed.
H
A
2
SUPREME COURT REPORTS
(2002] 3 S.C.R.
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
B 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
C convicted under Section 302/149 IPC and sentenced to rigorous imprisonment
for life and Section 3 (1) of the TADA with death sentence. Hence the present
appeal and death reference.
On behalf of the appellants it was contended that the prosecution has
D failed to prove the participation of the appellants in the crime by credible
evidenc; that it was a fit case in which benefit of doubt 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
of the 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;
E 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
F 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 of death 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.
G
HELD: (Per Agrawal, J. )
1.

## Text

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KRISHNA MOCH! AND ORS.
v.
STATE OF BIHAR ETC.
APRIL IS, 2002
A
[M.B. SHAH, B.N. AGRA WAL AND ARIJIT PASA YAT, JJ.)
B
Criminal Law:
Terrorists and Disruptive Activities (Prevention) Act, 1987/Penal Code,
1860-Section 3/Section 302 read with Section 149-Death sentence- C
Justification of-Accused belonging to militant group a/lacked members of a
particular community pursuant to conspiracy hatched-Gruesome carnage
wherein 35 persons of a 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 D
others under TADA and !PC-Four of the accused convicted under Section
302 read with Section 149 !PC and sentenced to rigorous imprisonment of life
and under Section 3 TADA with death sentence-Appeal and death referenceWhether 'rarest of rare case' warranting death sentence-Held, yes since
crime not only ghastly but also enormous in proportion as 35 persons of one
community were massacred in an extremely diabolic, revolting and dastardly E
manner which affected the normal tempo of life of the community in the
locality-Further culpability of the accused persons 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).
F
Criminal Trial :
Appreciation of evidence-Complicity of accused-Case involving large
number of offenders and large number of victims-Only few witnesses-Whether
proved by credible evidence-Held, yes since in the maller of appreciation of
evidence of witness it is not the number of witnesses but quality of evidence G
that matters-Evidence Act, 1872-Section 134.
Evidence Act, 1872 :
Evidence-Appreciation of-Duty of Court in appreciating evidenceDiscussed.
H
A
2
SUPREME COURT REPORTS
(2002] 3 S.C.R.
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
B 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
C convicted under Section 302/149 IPC and sentenced to rigorous imprisonment
for life and Section 3 (1) of the TADA with death sentence. Hence the present
appeal and death reference.
On behalf of the appellants it was contended that the prosecution has
D failed to prove the participation of the appellants in the crime by credible
evidenc; that it was a fit case in which benefit of doubt 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
of the 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;
E 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
F 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 of death 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.
G
HELD: (Per Agrawal, J. )
1. In recent times there has been sharp decline of ethical values in public
life even in developed countries much less developing once, life ows, where
-<·
the ratio of decline is higher.
H
2. Even in ordinary cases, witnesses are not inclined to depose or their
t
KRISHNA MOCH! v. STATE OF BIHAR
3
evidence is not found to be credible by courts for manifold reasons. One of A
the reasons may be that they do not have courage to depose against an accused
because of threats to their life, more so when the offenders are habitual
criminals or high-ups in the Government or close to powers, which may be
political, economic or other powers, including muscle power. A witness may
not stand the test of cross-examination which may be sometime because he is B
a bucolic person and is not able to understand the question put to him by the
skilful cross-examiner and at times under the stress of cross-examination,
certain answers are snatched from him. When a rustic or illiterate witness
faces an astute lawyer, there is bound to be imbalance and, therefore minor
discrepancies have to be ignored. These days it is not difficult to gain over a
witness by money power or giving him any other allurance or giving out C
threats to his life and/or property at the instance of persons, in/or close to
powers and muscle men or their associates. Such instances are also not
uncommon where a witness is not inclined to depose because in the prevailing
social structure he wants to remain indifferent. It is most unfortunate that
expert witnesses and the investigating agencies and other agencies which have
an important role to play are also not immune from decline of values in public D
life. Their evidence sometimes becomes doubtful because they do not act
sincerely, take everything in a casual manner and are not able to devote proper
attention and time. [24-A-F]
2. In a criminal trial a prosecutor is faced with so many odds. The Court
while appreciating the evidence should not lose sight of these realities of life E
and cannot afford to take an unrealistic approach by sitting in ivory tower.
In recent times the tendency to acquit an accused easily is galloping fast. It is
very easy to pass an order of acquittal on the basis of minor points raised in
the case by a short judgment so as to achieve the yardstick of disposal. Some
discrepancy is bound to be there in each and every case which should not F
weigh with the Court so long it does not materially affect the prosecution case.
In case discrepancies pointed out are in the realm of pebbles, court should
tread upon it, but if the same are boulders, court should not make an attempt
to jump over the same. These days when crime is looming large and humanity
is suffering and society is so much affected thereby, duties and responsibilities
of the Courts have become much more. Now the maxim "let hundred guilty G
persons be acquitted, but not a single innocent be convicted" is, in practice,
changing world over and courts have been compelled to accept that "society
suffers by wrong convictions and it equally suffers by wrong acquittals. "
[24-F-H; 25-A-B]
Inder Singh and Anr. v. State (Delhi Administration), AIR (1978) Supreme H
,.
4
SUPREME COURT REPORTS
[2002) 3 S.C.R.
A Court 1091; State of U.P. v. Anil Singh, AIR (1988) Supreme Court 1998; State
of West Bengal v. Ori/a/ Jaiswal and Anr., [1994) 1 Supreme Court Cases 73,
and Mohan Singh and Anr. v. State of MP., (1999) 1 Supreme Court Reports
276, ref erred to.
3. In the instant case where there was more or less a caste war between
B haves and have nots, gruesome murder of 35 person of one community in
which several persons were injured, great commotion in the locality, people
became panicky as the accused persons were members of a very violent
organisation, even if the complicity of the accused is proved by credible
evidence of one or two witnesses, it would not be unsafe to convict an accused,
rather a duty is enjoined upon the court not to acquit an accused on this
C ground alone unless the prosecution case is otherwise found to be
untrustworthy. It is well settled that in a criminal trial credible evidence of
even a solitary witness can form basis of conviction and that of even half a
doun witnesses may not form such a basis unless their evidence is found to
be trustworthy inasmuch as what matters in the matter of appreciation of
D evidence of witnesses is not the number of witnesses, but the quality of their
evidence. [25-G, H; 26-A-B]
Masalti v. The State of Uttar Pradesh, AIR (1965) SC 202, distinguished.
4.1. Regarding non-disclosurt: of names of the appellants in the
confessional statement of co-accused there may be various reasons for the
E same. They might not be fully known to the confessing accused or for reasons
best known to him, with an oblique motive, to save the appellants, their names
might not have been disclosed. Thus the participation of the appellants in the
crime is not doubtful. [26-C, DJ
4.2. The submission that the First Information Report cannot be used
p as substantive piece of evidence since the informant has not been examined
and thus appellants are entitled to 'an order of acquittal is totally misconceived
since even if the first information report is not proved, it w()uld not be a
ground for acquittal, but the case would depend upon the evidence led by
prosecution. [26-D-E]
G
4.3. Regarding non-examination of the Inspector, who was one of the
investigating officers, he had neither taken over charge of the investigation
of the case at any point of time, much less investigated the same and so no
adverse inference can be drawn against the prosecution on account of his nonexamination and non-furnishing of explanation for his not taking over charge
H of investigation. Thus, he having not conducted any investigation, the evidence
+
-+
KRISHNA MOCH! v. STA TE OF BlHAR
5
f
of Inspector could not be of any avail either to the prosecution or the defence. A
It is well settled that non-examination of any witness would not affect the
prosecution case, but in a given case non-examination of a material witness
may affect the same. Further it is well settled that non-examination of
investigating officer is not fatal for the prosecution unless it is shown that the
accused has been prejudiced thereby which could not be pointed out in the B
instant case. [27-B-D]
Masai ti v. The State of Uttar Pradesh, AIR (1965) SC 202, referred to.
4.4. Submission that nothing incriminating could be recovered from the
appellant-accused goes to show that they had no complicity with the crime
cannot be accepted, more so when their participation in the crime is infolded C
in ocular account of the occurrence given by the witnesses, whose evidence
has been found to be unimpeachable. (27-E-F]
4.S. With regard to the identity of the accused person, witnesses stated
that there was no electricity in the village during that night and consistently D
deposed and supported each other on the point that accused persons had set
fire to houses and heaps of straw in the light of which they had identified the
accused persons, including the appellants. In view of the fact that the night was
not dark and there was sufficient light by virtue ofsetting fire to the houses
and heaps of straw, it cannot be said that it was not possible for the witnesses to
identify the accused persons much less any of the appellants. (27-G:HJ
E
4.6. The submissions that the accused persons may be sight seers as no
suggestion was given to any of the witnesses on this score cannot be accepted.
According to the prosecution case and the evidence, the accused persons arrived
at the village of occurrence, pursuant to a conspiracy hatched up by them, they
divided themselves into several groups, different groups went to tke houses of F
different persons in the village, entered the houses by breaking open the door,
forcibly took away inmates of the house after tying their hands, taken them first
to the temple and thereafter near the canal where their legs were also tied and
there some of them were done to death at the point of firearm, but a vast
majority of them were massacred by slitting their throats with pasuli. All these G
acts were done by the accused persons pursuant to a conspiracy hatched up by
them to completely eliminate a particular community in the village and to
achieve that object, they formed unlawful assembly and different members of
that unlawful assembly had played different roles. Thus, merely because the
appellants are not said to have assaulted either any of the deceased or injured
persons, it cannot be inferred that they had no complicity with the crime, more H
--;-- -
6
SUPREME COURT REPORTS
[2002) 3 S.C.R.
A so according to the evidence they were also armed with deadly weapons, like
~
firearms, bombs etc., but did not use the same. (28-B-E)
Masalti v. The State of Uttar Pradesh, AIR (1965) SC 202, referred to.
5. The number of accused persons was vast but upon completion of
B investigation, charge sheet was submitted against 119 persons and too many
persons were shown as prosecution witnesses. The accused persons also set
fire to the houses of the members of a particular 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
c . extremely diabolic, revolting and dastardly manner and had affected the
normal tempo oflife of the community in the locality. The crime in the instant
case is not only ghastly, but also enormous in proportion as 35 persons, all of
whom b~longed to one community, were massacred. Thus, after taking into
consideration the balance sheet of aggravating and mitigating circumstances,
in which 35 person have been deprived of their lives by the accused persons
D who were thirsty of their blood, there is no doubt in holding that culpability
of the accused persons assumes the proportion of extreme depravity that a
special person 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
.,,_
be mockery of justice if extreme penalty of death is not imposed. Thus,
E
Designated Court was quite justified in upholding convictions of the appellants
and awarding the extreme penalty of death whiclrpunishment alone was called
for in the facts of the case. [33-E-H; 34-A)
Masalti v. The State of Uttar Pradesh, AIR (1965) SC 202 and Bachan
Singh v. State of Punjab, AIR (1980) SC 898, referred to.
F
Machhi Singh v. State of Punjab, (1983) 3 SCC 470, relied on.
'f'
Per Pasaya! J. (Supplementing)
1.1. Stress was laid by the accused-appellants on the non-acceptance of
G
evidence tendered by some witnesses to contend about desirability to throw
out entire prosecution case. In essence prayer is to apply the principle offalsus
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 co-accused persons,
his conviction can be maintained. It is the duty of Court to separate grain from
H chaff. Falsity of particular material witness or material particular would not
KRISHNA MOCHJ v. STATE OF BIHAR
7
ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" A
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 oflaw. 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 B
may apply in a given set of circumstances, but it is not what may be called 'a
mandatory rule of evidence. ' 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 C
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 oflaw that it must be disregarded in all
respects as well. The evidence has to be shifted with care. The aforesaid dictum D
is not a sound rule for the reason that one hardly comes across a witness whose
eviljence .does not contain a grain of untruth or at any rate exaggeration,
embroideries or embellishment. [35-C-G, H; 36-A-CJ
1.2. Material discrepancies are those which are not normal, and not
expected of a normal person. Courts have to label the category to which a E
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. (36-F-G]
1.3. The gruesome acts were diabolic in their conception and cruel in
execution. There was deliberate and planned destructicn of extensive F
properties and annihilation of large number of persons. All this happened,
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 of the orderly society which the G
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. (36-H; 37-A-B]
1.4. Criminal law adheres in general to the principle of proportionality
in prescribing liability according to the culpability of each kind of criminal H
8
SUPREME COURT REPORTS
[2002] 3 S.C.R.
A conduct. It ordinarily allows some significant discretion to the Judge in
arriving at a sentence in each case, presumably to permit sentences that reflect
mo~ subtle considerations of culpability that are raised by the special facts
of each case. Punishment ought always to fit with the crime. Thus conviction
in sentence awarded by the trial court are to be upheld and appeal deserves
B to be dismissed. (37-F, 38-A)
Masa/ti and Ors. v. State of Uttar Pradesh, AIR (1965) SC 202,
distinguish~d.
Anil Phukan v. State of Assam, AIR (1993) SC 1462; Magsoodan v. State
of UP., AIR (1983) SC 126; Padamasundara Rao (dead) and Ors. v. State of
C Tamil Nadu and Ors., JT (2002) 3 SC 1; Nisar Ali, v. State of Uttar Pradesh,
AIR (1957) SC 366; Gurucharan Singh and Anr. v. State of Punjab, AIR (1956)
SC 460; Sohrab s/o Beli Nayata and Anr. v. State of Madhya Pradesh, [1972) 3
SCC 751; Ugar Ahir and Ors. v. The State of Bihar, AIR (1965) St 277; Zwinglee
Ariel v. State of Madhya Pradesh, AIR (1954) SC 15; Ba/aka Singh and Ors. v.
D The State of Punjab, AIR (1975) SC 1962; State of Rajasthan v. Smt. Kalki and
Anr., AIR (1981) SC 1390 and Ram Deo Chauhan v. State of Assam, (2000)
AIR SCW 2784, referred to.
Per Shah J., (Dissenting)
E
1. It is settled law that when accused are charged with heinous brutal
murders punishable to the highest penalty prescribed by the Penal Code, the
judicial approach in dealing with such cases 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
F found reliable and trustworthy. (50-H; 51-A]
'
2.1. In the instant case, it is apparent that the investigation is totally
defective. Investigating officers have not taken any care and caution of
recording the statement of witnesses immediately. No identification parade
of accused was held. Even the investigating officer was not examined. Almost
G 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
-1--· -
as accused who were not known to them or whom they had not seen at the
+
time of incident. Therefore, their evidence to a large extent becomes doubtful
and/or tutored. Further the witnesses nowhere assign any specific role to the
H accused, exci>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. A
Even the investigating officers have not recovered any weapon or offence or
any incriminating article from the possession or any or the 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 a
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
B
and Ors. v. State of UP., (19991 8 SCC 701; Maso/ti v. State of Uttar Pradesh, C
[196418 SCR 133; Binay Kumar Singh v. State of Bihar, (199711 SCC 283; Re;
Baddi Venkata Narasayya and Ors. v. State of A.P., (1998) 2 SCC 329; State of
. A.P. v. Thakkidiram Reddy and Ors., (199816 SCC 554; Hukam Singh and Ors.,
v. State of Rajasthan, (2000) 7 SCC 490; Jamuna Choudhary and Ors. v. State
of Bihar, Am (1974) SC 1822; Kishore Chand v. State of Himachal Pradesh, D
Am (1990) SC 2140 and Dilavar Hussain v. State of Gujarat, [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 E
Court Gaya at Bihar in G.R. No. 430 of I 992.
WITH
Death Reference No. I of 200 I.
U.R. Lalit and Irshad Ahmed for Sanjay Jain for the Appellant.
F
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 G
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 of members of another
community leading to more or less an outburst of caste war between haves H
~'
10
SUPREME COURT REPORTS
[2002) 3 S.C.R.
A 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
B
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. J 1) 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)
c 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
D
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.
E 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
F 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 the Jard beyan of one Satendra Kumar Sharma recorded
G
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 l 0 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
H Haridwar Singh as according to their information, both of them were in one
KRISHNA MOCH! v. STATE OF BIHAR [B.N. AGRA WAL, J.]
11
c f
of houses of that village:-Upon this, the infonnant opened the door out offear A
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 of the informant were also tied and he was also B
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 c
Singh, Ramesh Singh, Nagina Singh and Lakhan Singh arrived there weeping.
At that time, Sumiran Singh, Mithilesh Singh, Ekbal Singh, Upendra Singh
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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 D
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 E
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
F
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. G
The terrorists were talking among themselves that they had come to annihilate
~
persons belonging to one particular community which was object of the
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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 14 7, 148, 149, 302, 307, 326, 436, 452, 341 and 342 of the Penal H
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12
SUPREME COURT REPORTS
[2002) 3 S.C.R.
A 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 ,
B 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
c 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
D
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
E 15) who held postmortem examinations on the dead bodies of different 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
G 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
H Devi (PW 22), Rajmani Devi (PW 23) and Usha Devi (PW 30) as ~itnesses
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KRISHNA MOCH! v. STATE OF BIHAR [B.N. AGRA WAL, J.]
13
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and upon consideration thereof, the trial court came to the conclusion that
there was a gruesome carnage which conclusion could be neither assailed by
A
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 B
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 c
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.
D
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 of the State, submitted that the prosecution has succeeded in proving
its case and complicity of the appellants with the crime by unimpeachable E
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 F
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
G
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 H
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14
SUPREME COURT REPORTS
(2002) 3 S.C.R.
A 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
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from the date of the 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
·'
B
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 of participation of this appellant
cannot be of any avail to the prosecution.
)..._
c
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
D 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
E 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
F 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
G 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
H not find any ground to disbelieve this witness.
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KR!SHNAMOCH!v. STATEOFB!HAR[B.N. AGRAWAL,!.]
15
Ram Sagar Singh (PW l 6) who was also resident of village of occurrence A
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 B
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 C
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
of the village ofoccurrence stated that on 12th F ebiuary, 1992, when he was D
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 of another villager, a bomb was thrown on the E
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 F
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 of which, left ear and throat of this
witness were slittered and he became unconscious as a result of the injuries
inflicted.