CRIMINAL APPEAL No.369 OF 1993 ****** Against the judgment of conviction dated 30th of November, 1993 passed by Sri A. Toppo, Additional Sessions Judge-I, Barh in Sessions Trial No. 87 of 87. 1.KUMKUM SINGH S/O- Ram Sagar Singh 2.SHEO BALAK SINGH S/O- Ram Ashish Singh 3.GOPWA SINGH @ GOPE SINGH S/O-Bakshi Singh All are R/O-Moldiar Tota/ Mokama Police Station, Mokama, District- Patna. ---------------------------------------------(Appellants) Versus THE STATE OF BIHAR --------------------------------------------(Respondents) 1. For the Appellants : Mr. Sandeep Kumar (Advocate) : Mr. Arun (Advocate) : Mr. Ajit Kumar (Advocate) 2. For the State : Mr. Ali Mozaffar (APP) 3. For the Informant : Mr. Akhileshwar Prasad (Advocate) P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA ****** S.K. Sharma, J. This appeal has arisen out of judgment of conviction and order of sentence dated 30.11.1993 passed by Sri A. Toppo, the learned Additional Sessions Judge-I, Barh in Sessions Trial No.- 87/87 by which the appellants were convicted under Section 147 of the Indian Penal Code and were sentenced to undergo R.I. for two years. 2. The First Information Report was lodged 2 on the basis of fardbeyan of informant Daljit Singh (P.W. 3). The fardbeyan resulted into registration of Mokama P.S. Case No.- 279 of 1989 under Sections 147, 148, 149, 307, 448, 341, 337, 380 and 463 of the Indian Penal Code. 3. The informant (P.W. 3) in his First Information Report lodged at 9.45 a.m. on 01.11.1984 stated that when he was sitting with his brother Gurjeet (P.W. 1) and Manager Bhasho Singh on his Gaddi, the appellant Kumkum Singh along with 7-8 unknown persons came and Kumkum Singh started assaulting with his Kulhari. The informant ran for his safety into the female apartment of the house and later on his brother Gurjeet also ran inside female apartment where he also was assaulted by an axe by the appellant Kumkum Singh and the informant locked the door of the apartment from inside. The appellant Kumkum Singh was having a match box, appellant Sheo Balak Singh was having Kerosene Oil and Gopwa Singh @ Gope Singh along with 200-300 persons reached 3 there and after some time, they started pelting brick- bats on their house. Further allegation is that these three named appellants put the house of the informant on fire due to which the Motorcycle, Dal, Grain-husk (BHUSA) have burnt. 4. The matter was investigated into and charge sheet was submitted and cognizance was taken. After commitment, the charges were explained against them under Sections 147, 148, 323, 380 and 436 of the Indian Penal Code and when they denied the allegation trial proceeded. 5. In order to prove its case, the prosecution has examined altogether five witnesses. They are Gurjeet Singh (P.W. 1) brother of the informant, Bhasho Singh (P.W. 2) Manager of the informant, the informant himself (P.W. 3), Doctor Satyadeo Mandal (P.W. 4) and the Investigating Officer (P.W. 5). The material witnesses examined on behalf of prosecution were P.W’s 2 and 3 who claimed themselves to be the eye witnesses of the alleged occurrence. The place of occurrence, according to 4 investigating officer P.W. 5, was the residential house and business premises situated to the south of the National High way which passes the Mokama Town. In the south of the road, there were five godowns facing north in one line from east to west. The investigating officer has seen double storey residential building of the informant just west to the said godowns. The investigating officer has also found the Gaddi of the informant just in the south of the godown. P.W. 1 has described the place of occurrence. It is the same place of occurrence which has been described by P.Ws. 2 and 3 also. P.W’s 1, 2 and 3 have supported the allegation of assault and putting the house of the informant on fire. 6. The trial court after considering the evidences on record disbelieved all the charges except charge under Section 147 of the Indian Penal Code and convicted the appellants under that Section and sentenced them to undergo rigorous imprisonment for two years. 7. Submission on behalf of the learned 5 Counsel for the appellants is that once the conviction under substantive offences failed, then the court has erred in convicting the appellants only under Section 147 of the Indian Penal Code. He has relied upon the judgment reported in Basan Bhowmic, Petitioner Vs. State & Another, Opposite Party in 1963 (1) Cri. L.J. 46 in which it has been held that where the primary common object as mentioned in the charge of rioting fails, it would not be proper to maintain a conviction on that charge by observing that, in any case, the common object of assaulting the complainant and his men was established. If the primary common object fails, there should be no conviction on basis of ancillary common object. It has also been submitted that in view of the contradictory evidences of the witnesses the court has erred in passing the order of conviction under Section 147 of the Indian Penal Code. 8. P.W’s. 1, 2 and 3 have described that the occurrence has taken place at 9.45 a.m. on 01.11.1984. After about half an hour i.e. at about 6 10.15 a.m. on the same day informant’s fardbeyan (Ext. 3) was recorded. All the material witnesses were present and their evidence was that the place of occurrence was the residential premise of the informant at Mokama Town. This fact has been stated by the investigating officer P.W. 5 also. The investigating officer has gone at the place of occurrence and motorcycle, bicycle, doors of godown and other parts of godown were found burnt. So far as the time and place of occurrence are concerned, there are consistent evidence of P.W’s 1, 2 and 3 that on the alleged date and time, the petitioners were members of the unlawful assembly and they have committed the riot. With regard to other offences they have been acquitted, so those evidences are not being discussed. Charge of rioting was with regard to the time and place which has been stated by all the witnesses. The relevant part of Section 146 of the Indian Penal Code is that whenever force or violence is used by an unlawful assembly or by any member thereof, in prosecution of the common object of such 7 assembly, every member of such assembly is guilty of the offence of rioting which can be punished up to two years or the fine or both. The consistent evidence of P.W’s 1, 2 and 3 with place of occurrence finds support from the evidence of P.W. 5, the investigating officer. For the purpose of rioting no more evidence is required and the court was justified in finding the appellants guilty under Section 147 of the Indian Penal Code. 9. Learned Counsel for the informant has submitted that a Division Bench of this Court has held that even in absence of conviction under substantive offences, the members of unlawful assembly can be found to be guilty under Section 147 of the Indian Penal Code and they can be punished. Reliance has been placed upon the judgments delivered in Criminal Appeal (DB) 588/1987 and Criminal Appeal (DB) 106/1999. 10. On careful perusal of the evidences on record, I am of the view that the case of rioting is supported by the prosecution and as such the 8 appellants were liable to be convicted for such offence and the trial court has rightly convicted the appellants under Section 147 of the Indian Penal Code. As such, the conviction of the appellants is maintained. 11. However, on the question of sentence, it has been submitted by learned Counsel appearing on behalf of the appellants that this was the first offence of the appellants and there is no previous conviction, so substantive sentence was not justified and the appellants should have been given the benefit of provision of Section 360 of the Code of Criminal Procedure or of Sections 4 and 5 of Probation of Offenders Act. 12. In my view, the offence was committed in furtherance of the common object, so the court below was justified in not giving the benefit of provision of Section 360 of the Code of Criminal Procedure or of provisions under Probation of Offenders Act. 13. However, the offence is of the year 1984 9 and about 25 years have passed. Thereafter, nothing has been brought against the appellants that they have indulged themselves in other criminal offences. They are of advanced age. So, I am of the view that the sentence of this appellant needs to be modified. Accordingly, the sentence of the appellants is modified and reduced to the period already undergone by them during trial and the appeal which according to me will be sufficient for the ends of justice. 14. In the result, this appeal is dismissed with the aforesaid modification in the sentence. Patna High Court Date 12th August 2009 kksinha/N.A.F.R. (Shyam Kishore Sharma, J.)