Every member of the unlawful assembly is guilty of the offence of rioting even though he may not have himself used force or violence: The Supreme Court of India

IN THE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 606 OF 2021 State of Biharwith hands fists lathis and sticks the brother of the first informant PW8 Priya Ranjan Tiwariupon knowing about the incident came to rescue him and at that time accused Dinanath Singh @ Dina Singh fired gun shot at PW10 with his country made pistol due to which he received pellet injuries. Accused Ajay Singh fired at Dinesh Tiwaridue to which he was injured. It was further alleged that due to scuffle accused Hira Singh snatched wrist watches of PW8 & PW10 the villagers rushed there and then all the accused persons ran away towards village Naudhia. Based on the statement of PW8 Rajiv Ranjan Tiwari which was recorded at 12:30 p.m. on 26.11.1989 an FIR was registered at about 2:00 p.m. on the very day i.e. 26.11.1989 against 16 accused named persons for the offences under Sections 147 148 149 307 326 324 323 IPC and Section 27 of the Arms Act. At this stage it is required to be noted that even some of the accused Lakshman Singh Shiv Kumar Singh and Ayodhya Prasad Singh also sustained injuries. After conclusion of the investigation the investigating officer filed chargesheet against 15 accused including the appellants herein 2.1 The learned trial Court framed the charge against the accused persons for the offences under Sections 323 307 147 149 and 379 IPC. Accused Dinanath Singh and Ajay Singh were further charged under Sections 148 IPC and accused Hira Singh was also charged under Section 379 IPC. As the case was exclusively triable by the Court of Sessions the case was committed to the learned Sessions Court which was numbered as Sessions Trial No. 391 2.2 To prove the case against the accused the prosecution examined in all 15 witnesses including PW8 the first informant Rajiv Ranjan Tiwari Priya Ranjan Tiwarithe brother of the first informant and PW5 Dilip Kumar Tiwari who all were injured eye witnesses. The prosecution also examined Dr. Jawahar Lal who examined PW10 PW12 and PW5 on the very day at Sadar Hospital Daltonganj and who found injuries on the said persons. The prosecution also examined the investigating officer Shivnandan Mahto 2 SCC 734 it is prayed to allow the present appeals The present appeals are opposed by the learned counsel appearing on behalf of the State of Jharkhand It is submitted that as such there are concurrent findings of fact recorded by both the learned trial Court as well as the High Court holding the appellants guilty for the offences under Sections 323 & 147 It is submitted that in the present case the prosecution has been successful in proving the case against the accused by examining PW8 PW10 & PW5 who are the injured eyewitnesses. It is submitted that the injured eyewitnesses PW8 PW10 & PW5 are reliable and trustworthy It is submitted that all the aforesaid three witnesses were thoroughly cross examined and from cross examination nothing adverse to the case of the prosecution has been brought on record by the accused. It is submitted that even the prosecution examined thee other witnesses PW1 PW3 & PW4 who are independent witnesses who supported the case of the prosecution. It is submitted that as such the learned trial Court has discussed the entire evidence on record and analysed the injury reports and thereafter by a detailed judgment has convicted the appellants for the offence of voluntarily causing hurt under Section 323 IPC and for the offence of rioting under Section 147 IPC. It is submitted that all the appellants have been guilty for the offence of rioting punishable under Section 147 IPC. It is submitted that for the offence of rioting there has to be an unlawful assembly of 5 or more persons as defined in Section 141 IPC i.e. an assembly of 5 or more persons and such assembly was unlawful the unlawful assembly must use force or violence. Force is defined in Section 349 IPC and the force or violence used by an unlawful assembly or by any member thereof must be in prosecution of the common object of such assembly in which case every member of such assembly is guilty of the offence of rioting It is submitted that in the present case all the ingredients of rioting as defined under Section 146 of the IPC has been established and It is submitted that as held by this Court in the case of Mahadev Sharma v. State of Bihar 1 SCR 18 = AIR 1966 SC 302 ‘that every member of the unlawful assembly is guilty of the offence of rioting even though he may not have himself used force or violence’. It is submitted that as held by this Court ‘offence of rioting under Section 146 IPC is said to be committed when the unlawful assembly or any member thereof in prosecution of the common object of such assembly uses force or violence’. It is submitted that therefore once the unlawful assembly is established in prosecution of the common object i.e. in the present case as held by the courts below the common object was “to snatch the voter list and to cast bogus voting” each member of the unlawful assembly is guilty for the offence of rioting. It is submitted that the use of force even though it be the slightest possible character by any one member of the assembly once established as unlawful constitutes rioting. It is submitted that it is not necessary that force or violence must be by all but the liability accrues to all the members of the unlawful assembly. It is submitted that some may encourage by words others by signs while others may actually cause hurt and yet all members of the unlawful assembly would be equally guilty of rioting. It is submitted that in the present case both the courts below have found the appellants as an active participant in the offence and they cannot be said to be the wayfarers or spectators It is submitted that so far as the offence of voluntarily causing hurt as defined under Section 321 IPC and punishable under Section 323 IPC is concerned it is submitted that the injuries sustained by PW5 to PW8 and PW12 are simple injuries while PW10 sustained grievous injuries. It is submitted that as such considering the nature of the injuries the appellants have been let off lightly by the courts below It is further submitted that as such the accused Lakshman Singh Shiv Kumar Singh and Ayodhya Prasad Singh sustained injuries which establish beyond doubt their presence and participation. It is submitted that in their statement under Section 313 Cr.P.C. they have not explained their injuries at all It is further submitted that as PW5 PW8 & PW10 are injured witnesses as held by this Court in catena of decisions evidence of an injured eye witness has great evidentiary value and unless compelling reasons exist their statements are not to be discarded lightly. It is submitted that very cogent and convincing grounds are required to discard the evidence of the injured witness. Reliance is placed on the judgments of this Court in the cases of State of MP v. MansinghAbdul Sayeed v. State of MP10 SCC 259 Ramvilas v. State of Madhya Pradesh 16 SCC 316 State of Uttar Pradesh v. Naresh 4 SCC 324and the recent decision in the case of Kalabhai Hamirbhai Kachhot v. State of Gujarat SCC Online SC 34710 SCC 1 to include within its ambit the right of an elector to cast his vote without fear or duress. It is submitted that as held by this Court in the aforesaid decision free and fair election is a basic structure of the Constitution and necessarily includes within its ambit the right of an elector to cast his vote without fear of reprisal duress or coercion. It is submitted that therefore when the trial Court has shown leniency to the appellants in sentencing them only for six months simple imprisonment no interference of this Court is called for 4.9. Making the above submissions and relying upon the aforesaid decisions it is prayed to dismiss the present appeals 5. We have heard the learned counsel for the respective parties at length. We have meticulously scanned the entire evidence on record and also the findings recorded by the learned trial Court which are on appreciation of the evidence on record. At the outset it is required to be noted that all the accused herein are convicted for the offences under Section 323 and 147 IPC and are sentenced to undergo six months simple imprisonment for both the offences and the sentences are directed to run concurrently It is true that in the impugned judgment the High Court has not at all dealt with and or considered the case on behalf of the accused appellants herein and has not discussed the evidence qua each accused which ought to have been done while deciding the first appeal against the judgment and order of conviction. However as for the reasons stated hereinbelow and ultimately we agree with the final conclusion of the High Court confirming the judgment and order passed by the learned trial Court instead of remanding the matter to the High Court we ourselves have re appreciated the entire evidence on record In the present case while convicting the accused the learned trial Court has heavily relied upon the deposition of PW1 PW3 and PW4 who are the independent witnesses and PW5 PW8 & PW10 who are the injured witnesses. The presence of the independent witnesses and even the injured witnesses at the place of the incident is natural. PW1 PW3 & PW4 all of whom were the residents of the village and they came there to cast their votes and witnessed the incident. All the witnesses PW1 PW3 & PW4 have identified all the accused persons and supported the case of the prosecution fully. PW5 PW8 PW10 and even PW12 are injured eyewitnesses. Injuries on PW5 PW10 & PW12 have been established and proved by the prosecution by examining Dr Jawahar Lalwho examined the above injured witnesses. Their injury reports are placed on record by way of Exhibit 1 1 1 and ½. All the witnesses have unequivocally and in the same voice have stated that at the relevant time when the voting was going on for the Lok Sabha constituency and at that time PW8 Rajiv Ranjan Tiwari was giving slips to the voters and at that time at about 10:40 a.m. all the accused persons belonging to another village came there and asked him to stop giving slips and to handover the voter list and on refusal the accused persons assaulted him with fists slaps and lathis and he sustained injuries. Meanwhile his brother Priya Ranjan Tiwari came for his rescue and at that time one Dinanath Singh took out his country made pistol and fired upon him causing several fire armed injuries. All the accused persons were named right from the very beginning of lodging the FIR and all the accused persons were specifically named by all the witnesses and or fully supported the case of the prosecution. At this stage it is required to be noted that even some of the accused namely Lakshman Singh Shiv Kumar Singh and Ayodhya Prasad Singh sustained injuries and they have failed to explain their injuries in their 313 statements. Thus their presence at the time and place of incident has been established and proved even otherwise. At the cost of the repetition it is observed that PW5 PW8 and PW10 are the injured witnesses. Even after they have been fully cross examined they have fully supported the case of the prosecution even after thorough cross examination on behalf of the accused In the case of Mansinghit is observed and held by this Court that “the evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist their statements are not to be discarded lightly”. It is further observed in the said decision that “minor discrepancies do not corrode the credibility of an otherwise acceptable evidence”. It is further observed that “mere non mention of the name of an eyewitness does not render the prosecution version 6.1 A similar view has been expressed by this Court in the subsequent decision in the case of Abdul Sayeed in order to falsely implicate someone”. It is further observed that “thus deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on basis of major contradictions and discrepancies therein” 6.2 The aforesaid principle of law has been reiterated again by this Court in the case of Ramvilasand it is held that “evidence of injured witnesses is entitled to a great weight and very cogent and convincing grounds are required to discard their evidence”. It is further observed that “being injured witnesses their presence at the time and place of occurrence cannot be doubted” Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand we see no reason to doubt the credibility and or trustworthiness of PW1 PW3 & PW4 and more particularly PW5 PW8 & PW10 who are the injured witnesses. All the witnesses are consistent in their statements and they have fully supported the case of the prosecution. Under the circumstances the courts below have not committed any error in convicting the accused relying upon the depositions of PW1 PW3 PW4 PW5 PW8 & PW10 Now so far as the submission on behalf of the appellants accused that all the appellants were alleged to have armed with lathis and so far as PW8 is concerned no injury report is forthcoming and or brought on record and therefore they cannot be convicted for the offence under Section 323 IPC is concerned at the outset it is required to be noted that PW8 in his examination in chief deposition has specifically stated that after he sustained injuries treatment was provided at Government Hospital Paatan. He has further stated in the cross examination on behalf of all the accused persons except accused Dinanath Singh that he sustained 2 3 blows of truncheons. He has also stated that he does not exactly remember that how many blows he suffered. According to him he first went to Police Station Paatan along with the SHO of Police Station Paatan where his statement was recorded and thereafter the SHO sent him to Paatan Hospital for treatment. Thus he was attacked by the accused persons by lathis sticks and he sustained injuries and was treated at Government Hospital Paatan has been established and proved. It may be that there might not be any serious injuries and or visible injuries the hospital might not have issued the injury report. However production of an injury report for the offence under Section 323 IPC is not a sine qua non for establishing the case for the offence under Section 323 IPC. Section 323 IPC is a punishable section for voluntarily causing hurt. “Hurt” is defined under Section 319 IPC. As per Section 319 IPC whoever causes bodily pain disease or infirmity to any person is said to cause “hurt”. Therefore even causing bodily pain can be said to be causing “hurt”. Therefore in the facts and circumstances of the case no error has been committed by the courts below for convicting the accused under Section 323 IPC Now so far as the conviction of the accused under Section 147 IPC is concerned the presence of all the accused persons at the time of incident and their active participation has been established and proved by the prosecution by examining the aforesaid witnesses who are the independent witnesses and injured witnesses also. The accused persons belong to another village. They formed an unlawful assembly in prosecution of common object i.e. “to snatch the voters list and to cast bogus voting”. It has been established and proved that they used the force and in the incident PW5 PW8 PW10 & PW12 sustained injuries All the accused persons appellants were having lathis. Section 147 IPC is a punishable section for “rioting”. The offence of “rioting” is defined in Section 146 IPC which reads as under “146. Rioting Whenever force or violence is used by an unlawful assembly or by any member thereof in prosecution of the common object of such assembly every member of such assembly is guilty of the offence of rioting.” On a fair reading of the definition of “rioting” as per Section 146 IPC for the offence of “rioting” there has to be an unlawful assembly of 5 or more persons as defined in Section 141 IPC i.e. an assembly of 5 or more persons and such assembly was unlawful the unlawful assembly must use force or violence. Force is defined in Section 349 IPC and the force or violence used by an unlawful assembly or by any member thereof must be in prosecution of the common object of such assembly in which case every member of such assembly is guilty of the offence of rioting “Force” is defined under Section 349 IPC. As per Section 349 IPC “force” means “A person is said to use force to another if he causes motion change of motion or cessation of motion to that other .” As observed hereinabove all the accused persons were the members of the unlawful assembly and the common intention was “to snatch the voters slips and to cast bogus voting”. They used force and violence also as observed hereinabove. It is the case on behalf of the accused that there is no specific role attributed to them for the offence of rioting under Section 147 IPC. However as observed hereinabove and as held by this Court in the case of Abdul Sayeedwhere there are large number of assailants it can be difficult for witnesses to identify each assailant and attribute specific role to him. In the present case the incident too concluded within few minutes and therefore it is natural that exact version of incident revealing every minute detail i.e. meticulous exactitude of individual acts cannot be given by eyewitnesses. Even otherwise as held by this Court in the case of Mahadev Sharmaevery member of the unlawful assembly is guilty of the offence of rioting even though he may not have himself used force or violence. In paragraph 7 it is observed and held as under Section 146 then defines the offence of rioting. This offence is said to be committed when the unlawful assembly or any member thereof in prosecution of the common object of such assembly uses force or violence. It may be noticed here that every member of the unlawful assembly is guilty of the offence of rioting even though he may not have himself used force or violence. There is thus vicarious responsibility when force or violence is used in prosecution of the common object of the unlawful assembly.” Thus once the unlawful assembly is established in prosecution of the common object i.e. in the present case “to snatch the voters list and to cast bogus voting” each member of the unlawful assembly is guilty of the offence of rioting. The use of the force even though it be the slightest possible character by any one member of the assembly once established as unlawful constitutes rioting. It is not necessary that force or violence must be by all but the liability accrues to all the members of the unlawful assembly. As rightly submitted by the learned counsel appearing on behalf of the State some may encourage by words others by signs while others may actually cause hurt and yet all the members of the unlawful assembly would be equally guilty of rioting. In the present case all the accused herein are found to be the members of the unlawful assembly in prosecution of the common object i.e. “to snatch the voters list and to cast bogus voting” and PW5 PW8 PW10 & PW12 sustained injuries caused by members of the unlawful assembly the appellants accused are rightly convicted under Section 147 IPC for the offence of In view of the above we are of the firm view that the appellants are rightly convicted under Sections 323 and 147 IPC and sentenced to undergo six months simple imprisonment only for the said offences. Before parting we may observe that though in the present case it has been established and proved that all the accused were the members of the unlawful assembly in prosecution of the common object namely “to snatch the voters list and to cast bogus voting” and have been convicted for the offence under Section 147 IPC the trial Court has imposed the sentence of only six months simple imprisonment. In the case of People”s Union for Civil Libertiesit is observed by this Court that freedom of voting is a part of the freedom of expression. It is further observed that secrecy of casting vote is necessary for strengthening democracy. It is further observed that in direct elections of Lok Sabha or State Legislature maintenance of secrecy is a must and is insisted upon all over the world in democracies where direct elections are involved to ensure that a voter casts his vote without any fear or being victimised if his vote is disclosed. It is further observed that democracy and free elections are a part of the basic structure of the Constitution. It is also further observed that the election is a mechanism which ultimately represents the will of the people. The essence of the electoral system should be to ensure freedom of voters to exercise their free choice. Therefore any attempt of booth capturing and or bogus voting should be dealt with iron hands because it ultimately affects the rule of law and democracy. Nobody can be permitted to dilute the right to free and fair election. However as the State has not preferred any appeal against imposing of only six months simple imprisonment we rest the matter there In view of the above and for the reasons stated hereinabove all the appeals fail and deserve to be dismissed and are accordingly dismissed Since the applications for exemption from surrendering of the accused appellants herein were allowed by this Court vide orders dated 15.03.2019 and 08.07.2019 respectively the accused appellants are directed to surrender forthwith to serve out their sentence Dr. Dhananjaya Y. Chandrachud New Delhi July 23 2021

Summary: Election is a mechanism which ultimately represents the will of the people. The essence of the electoral system should be to ensure freedom of voters to exercise their free choice. Therefore, any attempt of booth capturing and/or bogus voting should be dealt with iron hands because it ultimately affects the rule of law and democracy. Nobody can be permitted to dilute the right to free and fair election. The aforesaid has been established by the Supreme court in the case of Lakshman Singh Vs. State of Bihar [ CrA 606 OF 2021] which was decided upon by a two-judge bench comprising Justices DY Chandrachud and MR Shah on 23rd July 2021. The facts of the case are as follows. the accused are convicted for the offences under Section 323 and 147 IPC and are sentenced to undergo six months simple imprisonment. The accused had allegedly formed an unlawful assembly “to snatch the voters list and to cast bogus voting” and attacked some political workers during an election. It was submitted by the counsel for appellant that the motive has not been established and proved. It is submitted that the common object was alleged to be to cast bogus votes, which was never cast.