# STATE OF U.P v. DAN SINGH AND ORS

- **Citation:** [1997] 1 S.C.R. 764
- **Court:** Supreme Court of India
- **Decided:** 1997-02-03
- **Case number:** Criminal Appeal No. 442 of 1989
- **Bench:** M.K. Mukherjee, B.N. Kirpal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-v-dan-singh-and-ors-15263
- **Pages:** 27

## Headnote

Criminal Law:
Penal Code, 1860: Sections 302, 303, 307, 436 r/w Sections 149 and
C 141 Explanation-Unlawful assembly-Common object-Inference of-Marriage party of Scheduled Caste attacked by a large number of persons amied
with sticks and stones which resulted in death of 14 persons and injuries to
7-He/d: Intention of members of attacking pmty could be deduced from
number of injuries and weapons used-In the circumstances of the case, it
could 1101 be said that the attackers had a similar object but not a common
D object-Even if the assembly was initially lawful the same became u11lawful
when riot stmted after a member of accused pmty was injured:-Protectio11 of
Civil Rights Act. 1955, Sectio11s 4, 5 and 7.
/
Section 149-fJnlawful assembly-Membership-Evidence ofHe/d.~Exaggerutio11 or inconsequential contradictions in the testimony of
E eyewitnesses not a ground to reject their evidence in its entirety-Criminal
T1ial.
F
G
Sectio11 149-lngredients of-Held: It was not necessary for the prosecutio11 to prove which of the accused did which or what act.
Section 149--{}11/awful assembly-Membership of--Offence involving a
large number of offenders-Held: Identity and participation of each accused
must be f!Xed with reasonable certainty-In the circumstances of the case, only
those of the accused must be held to be members of 1mlawful assembly who
had been specifically identified by at least four eyewitnesses.
Con.~titution of India, 1950: Article 136.
Oiminal appeal-Acquittal-Appeal against-F~ct--Concurrent finding:,~Reversa/ of-Justification-Held: 17Jere must be compelling reasons for
coming to the conclusion that decision of cowts below were clearly unsusH tainable both in fact and law.
764
-
-.
-·>·
;:
...
_...._
...
~
STATE v. DAN SINGH
765
Criminal Procedure Code, 1973:
Appeal-Against acquittal of 32 accused-Reference of-To third
Judge-Division Bench agreed on acquittal of 22 accused but disagreed as
regards remaining accused-Upholding acquittal of said 22 accused, Division
Bench made reference of remaining accused to third Judge-Pursuant to
opinion of third Judge acquittal of only 2 accused partly reversed-field:
Appeal as a whole must be laid before ·third Judge-Even though order
pursuant to opinion of third Judge related to 10 out of 32 accused, the order
must be regarded as the final order whereby appeal of the State was partly
allowed with only two of them being convicted while re1;naining acquitted-flence, order of acquittal of 22 accused was non est.
The respondents-accused were acquitted by the Sessions Court of the
charges under Sections 302, 307, 323, and 436 read with Sections 149 and
. 141 Explanation of the Indian Penal Code, 1860 and under Sections 4(iv),
(x) and Section 5.7 of the Protection of Civil Rights, 1955. The High Court
upheld the acquittal of all the respondents· except two respondents who
were convicted under Section 325/34 IPC and sentenced to five years
rigorous imprisonment.
According to the prosecution, the occurrence took place in a village
in which, most of the residents were Thakurs and Brahmins. The only
house of a scheduled caste in that village was that of PW-8. A marriage
party, consisting of about 40 persons, who were Dom by caste, which is a
schedule caste, reached the said village, taking a Dali in which the
bridegroom was sitting. When it reached near the house of PW-8, some
words were exchanged between the deceased and PW-7. A large number of
villagers had collected there. The deceased took out a knife and there was
a scuffle between him and PW-7 and during this scuffle the father of the
bridegroom tried to snatch the knife. PW-7 and the deceased were injured,
but the deceased succumbed to those injuries after a few days .
After the deceased sustained the injuries the riot started. Some of
the villagers shouted that they should kill and burn the Doms and it was
thereafter that the marriage party was attacked. Some of the members of
the marriage party took shelter in the house of PW-7, but t

## Text

_Characters 0–39,879 of 66,152. This is a partial read: ask again with offset=39879 for what follows._

A
STATE OF U.P.
v.
DAN SINGH AND ORS.
FEBRUARY 3, 1997
B
[M.K. MUKHERJEE AND B.N. KIRPAL, JJ.]
Criminal Law:
Penal Code, 1860: Sections 302, 303, 307, 436 r/w Sections 149 and
C 141 Explanation-Unlawful assembly-Common object-Inference of-Marriage party of Scheduled Caste attacked by a large number of persons amied
with sticks and stones which resulted in death of 14 persons and injuries to
7-He/d: Intention of members of attacking pmty could be deduced from
number of injuries and weapons used-In the circumstances of the case, it
could 1101 be said that the attackers had a similar object but not a common
D object-Even if the assembly was initially lawful the same became u11lawful
when riot stmted after a member of accused pmty was injured:-Protectio11 of
Civil Rights Act. 1955, Sectio11s 4, 5 and 7.
/
Section 149-fJnlawful assembly-Membership-Evidence ofHe/d.~Exaggerutio11 or inconsequential contradictions in the testimony of
E eyewitnesses not a ground to reject their evidence in its entirety-Criminal
T1ial.
F
G
Sectio11 149-lngredients of-Held: It was not necessary for the prosecutio11 to prove which of the accused did which or what act.
Section 149--{}11/awful assembly-Membership of--Offence involving a
large number of offenders-Held: Identity and participation of each accused
must be f!Xed with reasonable certainty-In the circumstances of the case, only
those of the accused must be held to be members of 1mlawful assembly who
had been specifically identified by at least four eyewitnesses.
Con.~titution of India, 1950: Article 136.
Oiminal appeal-Acquittal-Appeal against-F~ct--Concurrent finding:,~Reversa/ of-Justification-Held: 17Jere must be compelling reasons for
coming to the conclusion that decision of cowts below were clearly unsusH tainable both in fact and law.
764
-
-.
-·>·
;:
...
_...._
...
~
STATE v. DAN SINGH
765
Criminal Procedure Code, 1973:
Appeal-Against acquittal of 32 accused-Reference of-To third
Judge-Division Bench agreed on acquittal of 22 accused but disagreed as
regards remaining accused-Upholding acquittal of said 22 accused, Division
Bench made reference of remaining accused to third Judge-Pursuant to
opinion of third Judge acquittal of only 2 accused partly reversed-field:
Appeal as a whole must be laid before ·third Judge-Even though order
pursuant to opinion of third Judge related to 10 out of 32 accused, the order
must be regarded as the final order whereby appeal of the State was partly
allowed with only two of them being convicted while re1;naining acquitted-flence, order of acquittal of 22 accused was non est.
The respondents-accused were acquitted by the Sessions Court of the
charges under Sections 302, 307, 323, and 436 read with Sections 149 and
. 141 Explanation of the Indian Penal Code, 1860 and under Sections 4(iv),
(x) and Section 5.7 of the Protection of Civil Rights, 1955. The High Court
upheld the acquittal of all the respondents· except two respondents who
were convicted under Section 325/34 IPC and sentenced to five years
rigorous imprisonment.
According to the prosecution, the occurrence took place in a village
in which, most of the residents were Thakurs and Brahmins. The only
house of a scheduled caste in that village was that of PW-8. A marriage
party, consisting of about 40 persons, who were Dom by caste, which is a
schedule caste, reached the said village, taking a Dali in which the
bridegroom was sitting. When it reached near the house of PW-8, some
words were exchanged between the deceased and PW-7. A large number of
villagers had collected there. The deceased took out a knife and there was
a scuffle between him and PW-7 and during this scuffle the father of the
bridegroom tried to snatch the knife. PW-7 and the deceased were injured,
but the deceased succumbed to those injuries after a few days .
After the deceased sustained the injuries the riot started. Some of
the villagers shouted that they should kill and burn the Doms and it was
thereafter that the marriage party was attacked. Some of the members of
the marriage party took shelter in the house of PW-7, but that house was
set on fire which resulted in the death of five of them inside the house,
while the body of another person was found in the courtyard of the house
which was half burnt. Apart from these six deceased, eight other persons
A
B
c
D,
E
F
G
H
766
SUPREME COURT REPORTS
(1997) 1 S.C.R ..
A were killed and their bodies were found lying in the adjoining fields of the_
village. Blunt instruments or stones caused the injuries on the deceased.
Except the deceased no other villager was injured. On the other hand,
except for those members of the marriage party who ran away from the
scene of occurrence, when the riot started, none were spared. The death of
B fourteen persons and injuries to seven others were caused by the villagers
who were present there.
In the appeal against the acquittal of the accused, the Division Bench
of the High Court agreed on the acquittal of the 22 accused hut disagreed
with regard to the remaining 10 accused. Upholding the acquittal of the
C said 22 accused, the Division Bench made a reference of the remaining 10
accused to a third Judge. Pursuant to the opinion of the third Judge
acquittal of only 2 accused was partly reversed.
On behalf of the appellants, it was contended that there was no valid
reason not to accept the testimony of the eight eye witnesses, seven of whom
D were injured; and that the evidence on record clearly showed that there
existed an unlawful assembly, the common object of which was to attack
and kill the members of the marriage party who were scheduled castes.
On behalf of the respondents, it was contended that the respondents
E were not members of the unlawful assembly or that they shared the same
common object and that this Court should accept the concurrent findings
of the courts below and it ought not to come to a different conclusion.
Disposing of the appeal, this Court
F
HELD: 1. I. What has happened in the present case is precisely what
has been envisaged in the explanation to Section 141 of the Indian Penal
Code, 1860. When the deceased was injured all hell broke loose. A cry was
raised that the Doms should be burnt and killed, and this is precisely what ·
happened. The villagers assaulted the marriage party. Six of the members
of the marriage party were burnt, five of them having been locked inside
G the house of the only Dom resident of the village whose house was also
burnt. Eight others were pursued and then mercilessly beaten and were
killed elsewhere in the village. Under the circumstances, it cannot be said
that an unlawful assembly having the common object of killing the l)oms
did not exist when fourteen people have been killed without the use of any
H weapon more lethal than a stick or stone. Considering the number of
---
...._
-
~
,,,
-
...i.
STATE v. DAN SINGH
767
injuries on the persons who had died, it is evideat that a large number of A
persons must have taken part in the assault. Even if the as~embly of
villagers was initially lawful, the same, undoubtedly, became unlawful whe11
the riot started after the deceased was injured. What is relevant to note is
that a large number of villagers were present, duly armed with lathis and
sticks, when the occurrence started and except six people who were burnt, B
eight others were beaten to death by blows from lathis, sticks and stones. ·
It is difficult to appreciate the conclusion of the High Court that, under
the circumstances, the attackers probably had a similar object but not a
common object. [780-C-G]
1.2. The only conclusion, which can be drawn in this case, is that C
there was an unlawful assembly, which attacked the marriage party and,
which h11d the common object of killing them and they succeeded in their
endeavour to a large extent. [781-A]
. Lalji & Ors. v. State of U.P., [1989] 1 SCC 437, relied on.
D
2.1. When people are killed during a riot, there may be a possibility
of the incident being exaggerated or some innocent persons being named
as being part of the assailants' party. This may happen wittingly or
unwittingly. But just because there may be some inconsequential contradictions or exaggeration in the testimony of the eyewitnesses that should E
not be a ground to reject their· evidence in its entirety. In cases of rioting,
where there are a large number of assailants and a number of witnesses,
it is but natural that the testimony of the witnesses may not be identical.
What has to be seen is whether the basic features of the occurrence have
been similarly viewed and/or described by the witnesses in a manner which
tallies with the outcome of the riot, viz., tbe injuries sustained by the F
victims and the number of people who are attacked and killed. [781-D-E]
2.2. The two essential ingredients of Section 149 IPC that there must
be a commission· of an offence by any member of unlawful assembly and that
such offences must be committed in prosecution of common object of that G
assembly or must be such as tbe members of that assembly or must be such
as the members of that assembly knew to be likely to be committed. [781-F-G]
23. It is uot necessary for the prosecution to prove which of the
members of the unlawful assembly did which or what act. In fact as
observed in Lalji's case "while overt act and active participation may H
768
SUPREME COURT REPORTS
[1997] 1 S.C.R.
A in1' .cate common intention of the person perpetrating the crime, the mere
presence in the unlawful assembly may fasten vicariously criminal liability
under Section 149". [787-G-H]
B
Masalti v. State of U.P., AIR (1965) SC 202 and Lalji & Ors. v. State
of U.P., [1989] 1 SCC 437, relied on.
3. In offences involving a large number of offenders it is necessary to
fix the identity and participation of each accused with reasonable certainty.
In the circumstances of this case, it would be safe if only those of the
respondents should be held to be the members of the unlawful assembly
C who have been specifically identified by at least four eyewitnesses. [780-A]
Masalti v. State of U.P., AIR (1965) SC 202, relied on.
4. In dealing with an appeal where both the courts below have
acquitted the respondents of the serious charges leveled against them,
D there should be very strong reasons to set aside the verdict of acquittal • -
and to convict the respondents. There have, therefore, to be compelling
reasons for this Court to come to the conclusion that the decisions of the
courts below are clearly unsustainable both in fact and in law. If two views
are possible then this Court would not, readily or ordinarily, reverse the
E concurrent findings of acquittal arrived at by the trial court and the High
Court. On the other hand, if the only conclusion, which could be arrived
at on the basis of the evidence on record, show that there has been a
serious miscarriage of justice, then, notwithstanding the concurrent findings of fact arrived at by the courts below, this Court would not hesitate
in coming to a different conclusion. It is for this reason that the evidence
F
of witnesses and the other materials on record have to be carefully considered and examined before this Court can come to the conclusion that
the prosecution was able to prove its case against all or some of the
accused. [778-D-G]
5. If there is disagreement amongst two Judges the appeal as a whole
G was required to be laid before the third Judge, vide Section 392 of the
Criminal Procedure Code, 1973, whose opinion was to prevail. The appeal
is finally disposed of by the judgment and order which follows the opinion
of the third Judge. Even though the order pursuant to the opinion of the
third Judge relate only to 10 out of thirty two accused the said order will
H be regarded as the final order whereby the appeal of the State was partly
....
J
STATEv. DANSINGH(KIRPAL,J.]
769
allowed, with only two of the thirty two accused being convicted while all A
the other accused were acquitted. Hence, order of acquittal of 22 accused
by the Division Bench is non est. [776-H, 777-A-B]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
442 of 1989.
From the Judgment and Order dated 19.5.88 of the Allahabad High
Court in Cr!. A No. 1573 of 1981.
Pramod Swarup, Prerna Swarup, (Praveen Swarup) for AS. Pundhir,
for the Appellant.
U.R. Lalit, Gaurav Jain and Ms. Abha Jain for the Respondents.
The Judgment of the Court was delivered by
KIRPAL, J. This is an appeal by special leave against the judgment
B
c
;
of the Allahabad High Court which had upheld the acquittal of all the D ·
accused respondents of charges under Sections 147, 302/149. 436/149.
307/149 of the Indian Penal Code (for short the. 'IPC') and under Section
4 (iv), (x) and Section 5.7 of the Protection of Civil Rights Act 1955. The
aforesaid charges were framed pursuant to an occurrence which had taken
place in village Kafalta Malla in district Bilaspur in the State of U .P. E
wherein 14 persons were killed and 7 injured. All the 32 accused- respondents were acquitted by the Sessions Judge and, in appeal, the acquittal of
all of them was upheld except that accused Kishan Singh, respondent no.
20, and Jeet Singh, respondent no. 14, who were convicted by the High
Court under Section 325/34 IPC and sentenced to five years {igorous
imprisonment.
F
The occurrence in question took place on 9th May, 1980. The
complainant's side is Dom by caste. It was not disputed during the arguments that Dom is a scheduled caste. The prosecution case is that a
marriage party from the complainant's village Birlagaon Talia was going to G
village Pinna. It had to pass through Village Kafalta Malla. The marriage
party, consisting of about 40 persons, reached the village Kafalta Malla at
5 p.m. There 4 woman accused nos. 29 to 32 met the marriage party near
the house of accused no. 13, Lachman Singh Bangari, i.e., in the beginning
of the village. These women stopped the doli of the bridegroom and
asserted that these Doms could not take their bridegroom on a doli in front H .-
770
SUPREME COURT REPORTS
[1997] 1 S.C.R.
· A of th1< house of Thakurs and Brahmins. The complainant's side replied that
when Brahmins and Thakurs could do it, the Doms had also right to do it.
Then these women shouted for their men folk of the village and all the
male accused, along with .others, came at the spot. In all there were 70 to
80 persons, and they were armed with laihis, dandas, stones. When the
B marriage party reached near the house of one Nari Ram, PW-8, a resident
of this village one Khima Nand Fauji attacked Diwani Ram, of the marriage
party, with a knife. Diwani Ram received injuries. Khima Nand Fauji
wanted to attack again. Then the bridegroom's father Mohan Ram tried to
snatch the knife from Khlma Nand. In this scuffle the knife struck Khima
Nand. (This Khima Nand died after a few days). When the knife struck
C Khima Nand and he got in,jured, the members of the marriage party started
running helter skelter. Some of them entered into the house of Nari Ram
as this Nari Ram was of their own caste. In order to save themselves these
persons bolted the door of Nari Ram's house from inside. The accused
assailants bolted it from outside and after making a hole in the roof, they
D put in dried grass, sprinkled kerosene oil and put it on fire. Some members
of the marriage party ran else where to save themselves but they were
attacked with lathis and stones etc. resulting in death of several persons.
Complainant Narendra Prasad (PW 1) was also in the marriage party. He
was injured. Some how he was able to escape and reached his house after
it being dark. Then he went to Patwari's office which is at a distance of
E two or three kilometers from his house and six kilometers from the place
of occurrence and lodged a written report (Ex. Ka. 3) at 10 p.m. the same
night.
Before the report was lodged by the complainant the accused no. 2
F
Inder Singh also lodged a report in the same Patwari's office at 9.30 p.m.
The version given in this report was that the marriage party reached the
village at 5 p.m. In the village there is a temple of Badri Nath where
bridegroom ·of every caste has to get down from doli. Then the marriage
party was asked that they should also take the bridegroom on foot in front
of the temple; but members of the marriage party did not agree and started
G quarrel. They attacked Ram Singh accused no. JO. As alaram was raised
in the village, the villagers assembled. The members of the marriage party
did not yield to persuasion. They took out knife and were bent upon
assaulting, and they started it. They attacked Khima Nand with knife.
Khima Nand received serious injuries and became unconscious. In this
H scuffle the marriage party, which consisted of fifty persons, dispersed while
J
STATE v. DAN SINGH [KIRPAL, J.)
771
the accused No. 2 Inder Singh and No. 20 Kishan Singh had come to lodge A
the report on being asked by the villagers. According to the accused, there
were 50 to 60 persons in the marriage party.
The accused pleaded not guilty. The four women accused merely said
that they did not know anything about the occurrence.
The accused Kunwar Singh son of Hayat Singh, Harish Chandra,
Trilok Singh son of Hayat Singh, Khushal Singh, Bishan Datta, Madhava
Nand, Bachey Singh, Deo Singh, Jasod Singh, Gosain Singh and Nardeo
pleaded that they were not at the spot.
B
c
Accused Hari Datta, J ai Singh alias Jasoda Singh, Ram Singh son of
Daulat Singh, Trilok Singh son of Udai Singh, Kunwar Singh son of Pa:am
Singh and Aan Singh did not raise any particular defence.
Accused Dan Singh, Indra Singh, Chandra Mani, Khiali Ram, Jagdish Chandra, Lachham Singh Bangari, Jeet Singh and Nardeo raised the D
defence that on the date of occurrence, there was a feast in the village at
the house of Khiali Ram accused. His brother's marriage party and·
returned on the same day. There were quite a number of invitees in the
feast and Khima Nand deceased was sent to bring pan and cigarettes for
the invitees. They had stated that in the village there is a temple of Badri E
Nath and the custom is that every person gets down from his vehicle or
carrier and walks on foot in the village boundary.
Accused Kishan Singh and Ram Singh son of Parbat Singh pleaded
that the marriage party was passing through the passage and the
bridegroom was on doli. The marriage party had crackers and guns with F
which they fired. Ram Singh, who returned from the feast of Khiali Ram,
requested the members of the marriage party to take down the bridegroom
from the doli, because of the custom that the people go on foot in the
village boundary, there being the temple of Badri Nath. The members of
the marriage party did not agree and proceeded ahead. Diwani Ram from
the marriage party showed a knife and Kishan Ram threatened with a lathi. G
Khima Nand also asked the members of the marriage party to take down
their bridegroom from the doli and go on foot in view of the village custom;
but the members of the marriage party quarrelled. Two of them, Mohan
Ram and Kishan Ram caught hold of Khima Nand's hands and Diwani
Ram inflicted knife injuries to Khima Nand due to which Khirna Nand died H
772
SUPREME COURT REPORTS
(1997) 1 S.C.R.
A and the marriage party dispersed. In cross-examination it was suggested
that the house of Nari Ram caught fire due to crackers of the marriage
party and the other invitees who had come to Khiali Ram's house might
have indulged in this episode.
B
The post mortem report on the dead bodies showed that six persons
had died of burns or suffocation. One of them also had head injury. Eight
other persons had lacerated wounds, contusion and abrasion and they had
died on account of shock and haemorrhage due to brain injury. In addition
to the aforesaid 14 persons there were other injured persons on the side
of the complainant, all of whom are eye-witnesses in the case. Narendra
C Prasad, PW-1, had six injuries which were lacerated wounds and abrasions.
Pitambar, PW-2, had lacerated wounds and some abrasions. Ganga Ram,
PW-3, had 11 injuries consisting of lacerated wounds, contusion and
abrasion. Bhawani Ram, PW-4, had 5 injuries which were abrasions and
infected wounds. Diwani Ram, PW-7, who had the first scuffle with Khima
D Nand (the deceased on the side of the accused) had three injuries consisting of two lacerated wounds and one contusion. Nari Ram, PW-8, had two
lacerated wounds, two contusions and three abrasions. There were
lacerated wounds and contusions on the hand and shoulder and Bali Ram,
PW-9, had 12 injuries, one of them was a contusion, one was abrasion and
the rest were lacerated wounds. Of these injuries one had caused the
E fracture of mandible.
The matter was reported by Narendra Prasad, PW-1, to Patwari
Narain Singh Khetri because under Section 2 of The Tehri-Garhwal
Revenue Officials (Special Powers) Act, 1956 the Patwari had been inF vested with powers of an officer in charge of a police station. This report
was lodged the saine night at 10 p.m. whereupon the Patwari recorded the
statements of Narendra Prasad, PW-1, and Pitambar PW-2, at his office.
The Patwari then sought help of one Devi Dutt Satti (PW-13) who was the
Patwari of another circle. Both of these Patwaries then reached the place
of incidence at l.30 a.m. in the night and found Nari Ram, PW-S's, house
G burning and also saw some dead bodies. Thereafter report was made by
Narain Singh to the higher officers while Devi Dutt Satti examined PW-3,
Ganga Ram and PW-8, Nari Ram amongst Others and also prepared the
site plan. Inside the house of Nari Ram five burnt bodies wre found. In the
courtyard of the house one half burnt body of Kishan Ram was found. ·
H Other bodies were found in the near-by fields.
STATEv. DAN SINGH [KIRPAL,J.]
773
After the initial investigation was made by the local Patwaries, the A
investigation was transferred to the regular police and then to the C.l.D.
Some of the accused were arrested by the police while others were arrested·
by the C.I.D. On 26th May, 1980 C.I.D. Inspector Ram Charan Singh,
PW-18, submitted the Chargesheet whereupon the respondents were put
up for trial.
The prosecution examined eight eye witnesses, out of whom except
B
for Amba Prasad, PW-5, all had been injured at the time of the incident.
Three doctors who had conducted post mortem examination of the dead
bodies, and had examined the injuries of the injured witnesses, were also
examined. In addition thereto evidence of two Patwaries as well as the C
investigation officers of the police and the C.I.D. was also recorded.
The accused examined six witness in their defence in support of the
plea of alibi raised by Hayat Singh, respondent no. 5 and Harish Chandra,
respondent no. 6.
D
The Sessions Judge, Almora, vide his judgment dated 15th April,
1981 acquitted all the accused of the above mentioned charges framed
against them. He came to the conclusion that the prosecution had faiied
to establish the guilt of the accused persons beyond a reasonable doubt.
E
Aggrieved by the aforesaid judgment the State filed a Criminal
Appeal No. 1573 of 1981 before the High Court of Allahabad. The said
appeal came up for hearing before the Division Bench of B.N. Katju and
Rajeshwar Singh, JJ. By his opinion dated 15th April, 1987 B.N. Katju, J.
came to the conclusion that except for respondents Jeet Singh and Kishan
F
Singh, the acquittal of all other respondents should be upheld. While
accepting that the incident had taken place in the said village of Kafalta
Malla, the learned judge expressed doubt whether the FIR had been
lodged the same night at 10 p.m .. The learned judge did not accept the
contention that the accused persons were members of the unlawful assembG
ly or that any unlawful assembly had come into existence which had a
common objec~ of killing the deceased. Only the evidence of Bali Ram,
PW-9, was partly believed to the extent that it implicated J eet Singh and
Kishan Singh for assaulting him and causing injuries which lathis and stones
and in respect whereof the learned judge held that these two assailants be
sentenced to five years rigours imprisonment under Section 325/34 IPC.
H
774
SUPREME COURT REPORTS
[1997] 1 S.C.R.
A
By a separate opinion Rajeshwar Singh, J. observed that the appeal
should be partly allowed. He came to the conclusion that the prosecution
evidence clearly showed that respondent No. 1. Dan Singh, respondent no.
2, Indra Singh, respondent no. 10, Ram Singh son of Parvat Singh, respondent no. 14, Jeet Singh, respondent no. 19, Trilok Singh son of Hayat Singh
B and respondent no. 20. Kishan Singh were members of a unlawful assembly
the object of which was not to let the bridegroom pass on doli and then to
kill and burn the Doms who did not heed the accused and one of whom
had injured Khima Nand. It was held that charges against them, under
Section 4 (iv) and (x) of the Protection of Civil Rights Act, 1955 as well as
charges under Sections 147, 302/149, 436/149, 323/149 and 307/149 IPC,
C stood established and the judge proposed to sentence them to imprisonment for life. The acquittal of four lady accused, namely, respondent no.
29, Rajmati, respondent no. 30, Jaintuli Devi, respondent no. 31, Jhapri
Devi and respondent no. 32, Mana Devi under Section 4 (iv), (x) and 7 of
the Protection of Civil Rights Act. 1955 was propO§ed to be set aside and
D they were to be sentenced to undergo simple imprisonment for one month
each and to pay a fine of Rs. 100 each.
Thus while both the learned judges agreed on the acquittal of 22 of
the accused there was a difference of opinion with regard to 6 other
accused and the four ladies who were charged with different offences. On
E
15th April, 1987 two orders were passed by the Division Bench. The first
order regarding acquittal of 22 accused was as follows:
F
G
"Government appeal no. 1573 of 1981 filed against" the acquittal
of Har Datt alias Hari Datt, Jai Singh alias Jasod Singh, Hayat
Singh son of Dewan Singh, Harish Chandra, Chandramani, Kunwar Singh son of Hayat Singh, Khayali Ram, Ram Singh son of
Daulat Singh Jagdish Chandra, Bishan Datt, Lachham Singh Bangari, Trilok Singh son of Udai Singh, Madhavanand, Khushal Singh
Bache Singh, Dev Singh, Jasod Singh son of Jathal Singh, Gusain
Singh, Kunwar Singh son of Param Singh, Mus Dev, Nar Dev and
An Singh respondent under Section 302/149, 307/149, 436/149,
323/149 and 147 I.P.C. and sub-sections (iv) and (x) of Section 4
and Section 7 of the Protection of Civil Rights Act, 1955 is
dismissed."
H By the second order the papers were directed to be placed before the Chief
STATE v. DAN SINGH [KIRPJ\L, J.]
775
Justice for the appeal to be placed before another judge under Section A
392 of the Code of Criminal Procedure. This order was in the following
terms:
"As there is a difference of opinion between us regarding Government appeal no. 1573 of 1981 filed against the acquittal of Dan
Singh, lnder Singh, Ram Singh son of Parvat Singh, Trilok Singh B
son of Hayat Singh, Jeet Singh, Kishan Singh, Smt. Rajmat~ Smt.
Jaintuli Devi, Smt. Jhapari Devi and Smt. Mane Devi respondents,
we direct that the appeal filed against them along with our opinions
shall be placed before Hon'ble the Chief Justice for being laid
be(ore another Hon'ble judge under Section 392 Cr. P.C."
C
The appeal was then herd by V.P. Mathur, J. who agreed.with the
opinion of Katju, J. As a result thereof final order was passed on 19th May,
1988 which is as follows :
"In view of the opinion of the· third Judge under Section 392 D
Cr. P.C. the Government Appeal against the acquittal of Dan
Singh, lnder Singh, Ram Singh son of Parvat Singh, Trilok Singh
son of Hayat Singh, Smt. Rajmati, Smt. J aintuli Devi, Smt. Jhapari
Devi and Smt. Mana Devi is dismissed. The Government Appeal
against the acquittal of Jeet Singh and Kishan Singh accused is ·
allowed in part. They are convicted under Section 325/34 I.P.C. E
and sentenced to five years rigours imprisonment.
Dan Singh, Inder Singh, Ram Singh on of Parvat Singh, Trilok
Singh son of Hayat Singh, Smt. Rajmati, Smt. Jaintuli Devi, Smt.
Jhapari Devi and Smt. Mana Devi respondents are on bail. They p
need not surrender. Their bail bonds are discharged.
J eet Singh and Kishan Singh respondents are also on bail. They
shall be taken into· custody forthwith to serve out the sentence
awarded to them."
Special leave petition was filed by the State against all the 32 accused.
Vide order dated 21st July, 1989, leave was not granted in case of the four
ladies, namely, respondent nos. 29 to 32 and their acquittal has become
final. Leave was granted qua the other 28 accused.
G
Before dealing with the rival contentions of the parties it will be H
776
SUPREME COURT REPORTS
[1997) 1 S.C.R.
A appropriate to note that as per the record of this Court, during the
pendency of this appeal four of the respondents, namely, Har Datt, respondent no. 3 Trilok Singh, respondent no 16, Madhavanand, respondent r10.
17 and Nar Dev, respondent no. 27, have expired. The appeal against them,
therefore, abates.
B
At the outset it was sought to be contended on behalf of the respondents that the appeal against the 22 respondents, qua whom the State's
appeal was dismissed by the Division Bench of B.N. Katju and Rajeshwar
Singh, JJ. vide order dated 15th April, 1987, had become final and no
appeal has been filed against the said decision. The appeal had only been
C filed against the final order dated 19th May, 1988, pursuant to the opinion
of the third judge. This order only pertains to the four ladies and six other
respondents. Special leave not having been granted against the acquittal of
the four ladies, this appeal, it was submitted, should be confined only to
the case relating to the six accused in respect of whom there .was a ·
difference of opinion which was referred to the third judge.
D
E
F
G
In our opinion there is no merit in the aforesaid contention. As is -
evident from the bare perusal of Section 392 of the Code of Criminal
Procedure, 1973, which is as follows:
"Procedure where Judges of Court of Appeal are equally
divided - When an appeal under this Chapter is heard by a High
Court before a Bench of Judges and they are divided in opinion,
the appeal with their opinion, shall be laid before another Judge
of that Court, and that Judge, after such hearing as he thinks fit,
shall deliver his opinion and the judgment or order shall follow
that opinion;
Provided that if one of the Judges constituting the Bench, or,
where the appeal is laid before another Judge under this section,
that Judge, so requires, the appeal shall be re-heard and decided
by a larger Bench of Judges."
According to this section if there is a difference of opinion amongst
the Judges of the bench, then their opinions are laid before another judge.
It is only after the third judge gives his opinion that the judgment or order
follows. It is clear from this that a judgment or order which can be
H appealed against, under Article 136 of the Constitution, is only that which
STATEv. DANSINGH[KIRPAL,J.]
777
follows after the opinion of the third judge has been delivered. What B.N. A
Katju and Rajeshwar Singh, JJ. wrote was not their judgments but they
were their opinions. Due to ,disagreement amongst them, Section 392 of
""'
the Code of Criminal Procedure required the appeal as a whole was then
required to be laid before the third judge (V.P. Mathur, J. in this case)
whose opinion was to prevail. The first order of 15th Apri~ 1987 was clearly B
not contemplated by Section 392 of the Code of Criminal Procedure and
is, therefore, nonest .
-'
..
When the appeal as a whole is heard by the third judge, he not only
has an option of delivering his opinion but, under the proviso to Section
392 of the Code of Criminal Procedure he may require the appeal to be c
re-heard and decided by a large bench of Judges. This was an option which,
under the proviso, was also open for any one of the two judges, namely,
B.N. Katju and Rajeshwar Singh, JJ. to exercise, but they choose not to do
so. What is clearly evident is that the appeal is finally disposed of by the
judgment and order which follows the opinion of the third judge. This D
,._
being so special leave petition could only have been filed after the appeal
was disposed of by the High Court vide its final order dated 19th May,
1988. Even though the said order purports to relate only to ten out of thirty
two accused the said order has to be read along with the earlier order of
15th April, 1987 and, in law, the effect would be that the order dated 19th
May, 1988 will be regarded as the final order whereby the appeal of the E
State was partly allowed, with only two of the thirty two accused being
convicted under Section 325 read with Section 34 IPC, while all the other
accused were acquitted.
A
Coming to the merits of the case the appellant has contended that F
all the 28 respondents, in respect of whom the special leave has been
granted, should have been convicted of the charges framed against them.
It was submitted by learned counsel that there was no valid reason not to
...
accept the testimony of the eight eye witnesses, seven of whom were
injured. It was contended that the evidence on record clearly showed that G
there existed an unlawful assembly the common object of which was to
attack and kill the members of the marriage party who were scheduled
"""
castes. It is pursuant to this common object that the members of the
~-
unlawful assembly attacked the members of the marriage party which led
to death of fourteen and injuries to seven, It was submitted that the said
decisfon is contrary to the well established principles of law and no court H
~
778
SUPREME COURT REPORTS
[1997) 1 S.C.R.
A could have, on the basis of the evidence on record, acquitted all the
respondents of the charges framed against them.
Mr. U.R. Lalit, learned senior counsel, appearing for the respon-
~.-
dents, on the other hand, submitted that while there can be no doubt that
B
the marriage party was attacked by the Villagers the Court cannot come to
the conclusion that there was any unlawful assembly which had a common
object of killing the members of the marriage party. He further submitted
that even if· it be assumed that an unlawful assembly was formed the
,:,. -
prosecution had failed to prove, beyond reasonable doubt, that the respondents were members of that unlawful assembly or that they shared the same
c common object. It was also vehemently contended that the respondents
having been acquitted, both by the trial court and the High Court, this
Court should accept the concurrent findings of fact arrived at and it ought
not to come to a different conclusion.
D
We are conscious of the fact that in dealing with an appeal where
both the courts below have acquitted the respondents of the serious - '"'.
· charges. levelled against them, there should be very strong reasons to
set-aside the verdict of acquittal and to convict the respondents. There
have, therefore, to be compelling reasons for us to come to the conclusion
that the decisions of the courts below are clearly unsustainable both in fact
I.
E and in law. If two views, are possible then this Court would not, readily or
ordinarily, reverse the concurrent findings of acquittal arrived at by the
trial court and the High Court. On the other hand, if the only conclusion,
which could be arrived at on the basis of the evidence on record, shows
that there has been a serious mis-carriage of justice, then, notwithstanding
.._
F · the concurrent findings of fact arrived at by the courts below, this Court
would not hesitate in coming to a different conclusion. It is for this reason
that the evidence of witnesse~ and the other materials on record have to
be carefully considered and examined before this court can came to the
conclusion that the prosecution was able to prove its case against all or
I
some of the accused.
.r
G
What has to be considered in this case is whether there was any
unlawful assembly at the place of occurrence and, secondly what was the
~
common object of the said assembly and, particularly, who were the
...
members of the said unlawful assembly. It is only after the court comes to
H the conclusion that the respondents, or any of them, was member of such
~
t
STATEv. DANSINGH[KIRPAL,J.]
779
·-
unlawful assembly who shared the common object of killing the Doms can A
they be convicted even if no overt act can be assigned to any one of them.
--
Before examining the evidence of the eye-witnesses we may note the
undisputed facts. On 9th May, 1980 an occurrence took place in the village
of Kafalta Malla. Most of the residents of the said village were Thakurs of B
Brahmins. The only house of a scheduled caste in that village was that of
Nari Ram, PW-8. The occurrence took place when the complaint's party
'
reached the said village taking a doli in which the bridegroom was sitting.
~
Even if the story with regard to the four ladies stopping the doli is not
accepted as correct, it is not in dispute that near the house of Nari Ram,
to which the doli had proceeded, some words were exchanged between c
Khirna Nand (deceased) and Diwani Ram, PW-7. A large number of
villagers had collected there. According to the complainant, Khima Nand
took out a knife and there was a scuffle between him and Diwani Ram and .
during this scuffle the father of the bridegroom, namely, Mohan Ram tried
to snatch the knife. Dewani Ram was injured and Khirna Nand was also
injured, hut he succumbed to those injuries after a few days. The defence D
version, believed by the High Court, was that Khirnanand was attacked by
Diwani Ram. The manner as to how injuries were caused to Khirnanand is
not very material but what is relevant is that after the injuries were
sustained by Khirna Nand the riot started. According to PW 1 to PW 3.
PW 5, PW 7 and PW 9 some of the villagers shouted that they should kill E
and burn the Dorns and it was thereafter that the marriage party was
attacked. Some of the members of the marriage party ~ook shelter in the
house of Nari Ram, but that house was set on fire which resulted in the
death of five of them inside the house, while the body of another person
was found in the courtyard of Nari Ram's house which was half burnt.
Apart from these six deceased, eight other persons were killed and their F
bodies were found lying in the adjoining fields of the village. The nature
of the injuries on the deceased and the assailants, except for the injury on
Khima Nand (deceased) and, possibly Diwani Ram, were all caused by
blunt instruments or stones. Except for Khimanand, no other villager was
injured. On the other hand, except for those members of the marriage party
G
who ran away from the scene of occurrence, when the riot started, none
were spared. It is accepted by the High Court that death of fourteen
~.i
persons and injuries to seven others was caused by the villagers who were
present there.
From the aforesaid facts, as found by the High Court, let us examine H
,, ,
780
SUPREME COURT REPORTS
[1997] 1 S.C.R.
A whether there existed any unlawful assembly and what was its common
object. It is possible that there was no unlawful assembly in existence at
the time when the 'doli' was stopped. Nevertheless as per the evidence of
all the eye witnesses, a large number of villagers had gathered there and
they had with them lathis and sticks. According to the explanation to
B Section 141 I.P.C. an assembly which is not unlawful when it assembles
may subsequently become an unlawful assembly. As observed by this Court
in Lalji & Ors. v. State of U.P., [1989] 1 SCC 437 "that common object of
the unlawful assembly can be gathered from the nature of the assembly,
arms used by them and the behaviour of the assembly at or before the scene
of occurrence. It is an inference to be deduced from the facts and circ
C cumstances of each case".