LAKSHMAN SINGH versus STATE OF BIHAR (NOW JHARKHAND)

[2021] 6 S.C.R. 723

LAKSHMAN SINGH

STATE OF BIHAR (NOW JHARKHAND)

(Criminal Appeal No. 606 of 2021)

JULY 23, 2021

[DR. DHANANJAYA Y CHANDRACHUD AND

M. R. SHAH, JJ.]

Penal Code, 1860: ss. 327 and 147 – Prosecution case wasthat on the day of general election PW-8 was issuing slips to thevoters 200 yards away from pooling booth – Accused persons whobelonged to another village came there armed with lathis, sticksand country made pistols and asked PW-8 to stop issuing voterslips and hand over voter list and on refusal by PW-8 started beatinghim with hands, fists, lathis and sticks – When PW-10, the brotherof PW-8 came to rescue him, accused-‘D’ fired gun shot at PW-10due to which he received pellet injuries – Accused-‘A’ fired at PW-12 – Thereafter villagers rushed there and accused persons ranfrom the spot – Conviction of accused under ss. 327 and 147 –Appeal against conviction – Held: PW-5, PW8, PW10 and PW12were injured eye-witnesses – Their injuries were established andproved by evidence of doctor who examined them – All the witnessesfully supported the case of prosecution – Even some of the accusedsustained injuries and they failed to explain their injuries in theirs. 313 statements – Presence of independent witnesses and theinjured eye-witnesses at the place of incident was natural – All thewitnesses were consistent in their statements and fully supportedthe case of prosecution – No error in order of conviction –Interference not called for..

Penal Code, 1860: s. 323 – Injury report – Absence of –Effect on prosecution case – Held: Production of an injury reportfor offence under s.323 is not sine qua non for establishing thecase for offence under s.323 – s.323 is punishable section forvoluntarily cause hurt – Even causing bodily pain can be said to becausing ‘hurt’.

Penal Code, 1860: s.147 – Presence of all the accused personsat the time of incident was established and proved by prosecution

CDEFG

Awitnesses – They formed unlawful assembly in prosecution ofcommon object i.e. to snatch the voters list and to cast bogus voting– Appellants were rightly convicted under s.147.

Sentence/sentencing – Booth capturing and bogus voting –Essence of the electoral system should be to ensure freedom of votersBto exercise their free choice – Therefore, any attempt of boothcapturing and/or bogus voting should be dealt with iron handsbecause it ultimately affects the rule of law and democracy – Nobodycan be permitted to dilute the right to free and fair election – However,in the instant case State did not prefer any appeal against imposingof only six months simple imprisonment, no interference withCsentence order made – Electoral system.

Dismissing the appeals, the Court

HELD: 1. In the instant case, while convicting the accused,the trial Court heavily relied upon the deposition of PW1, PW3Dand PW4, who were the independent witnesses and PW5, PW8& PW10, who were the injured witnesses. The presence of theindependent witnesses and even the injured witnesses at theplace of the incident was natural. PW1, PW3 & PW4, all of whomwere the residents of the village and they came there to casttheir votes and witnessed the incident. All the witnesses, PW1,EPW3 & PW4 identified all the accused persons and supportedthe case of the prosecution fully. Injuries on PW5, PW10 & PW12were established and proved by the prosecution by evidence ofthe doctor (PW7), who examined the injured witnesses. Theirinjury reports were placed on record. All the accused personsFwere named right from the very beginning of lodging the FIRand all the accused persons were specifically named by all thewitnesses and/or fully supported the case of the prosecution. Evensome of the accused sustained injuries and they have failed toexplain their injuries in their 313 statements. Thus, their presenceat the time and place of incident was established and proved evenGotherwise. PW5, PW8 and PW10 were the injured witnesses. Evenafter they were fully cross-examined, they fully supported thecase of the prosecution, even after thorough cross-examinationon behalf of the accused. There is no reason to doubt thecredibility and/or trustworthiness of PW1, PW3 & PW4 and moreH

particularly PW5, PW8 & PW10, who are the injured witnesses.All the witnesses are consistent in their statements and they havefully supported the case of the prosecution. Under thecircumstances, the courts below have not committed any errorin convicting the accused, relying upon the depositions of PW1,PW3, PW4, PW5, PW8 & PW10. [Paras 5, 7][736-E-G; 737-B-D;738-C]

Ramvilas v. State of Madhya Pradesh (2016) 16 SCC316 : [2015] 9 SCR 205 – relied on.

2. PW8 in his examination-in-chief/deposition specificallystated that after he sustained injuries, treatment was provided atGovernment Hospital. He further stated in the cross-examinationon behalf of all the accused persons except accused-D that hesustained 2-3 blows of truncheons. He also stated that he doesnot exactly remember that how many blows he suffered. Accordingto him, he first went to Police Station along with the SHO of PoliceStation where his statement was recorded and thereafter the SHOsent him to Paatan Hospital for treatment. Thus, he was attackedby the accused persons by lathis/sticks and he sustained injuriesand was treated at Government Hospital, Paatan was establishedand proved. It may be that there might not be any serious injuriesand/or visible injuries, the hospital might not have issued theinjury report. However, production of an injury report for theoffence under Section 323 IPC is not sine qua non forestablishing the case for the offence under Section 323 IPC.Section 323 IPC is punishable section for voluntarily causinghurt. “Hurt” is defined under Section 319 IPC. As per Section319 IPC, whoever causes bodily pain, disease or infirmity to anyperson is said to cause “hurt”. Therefore, even causing bodilypain can be said to be causing “hurt”. Therefore, in the facts andcircumstances of the case, no error has been committed by thecourts below for convicting the accused under Section 323 IPC.[Para 8][738-D-H; 739-A

3. Now so far as the conviction of the accused under Section147 IPC is concerned, the presence of all the accused persons atthe time of incident and their active participation has beenestablished and proved by the prosecution by examining the

Aaforesaid witnesses who are the independent witnesses andinjured witnesses also. The accused persons belong to anothervillage. They formed an unlawful assembly in prosecution ofcommon object, i.e., “to snatch the voters list and to cast bogusvoting”. It has been established and proved that they used theforce and, in the incident, PW5, PW8, PW10 & PW12 sustainedBinjuries. All the accused persons-appellants were having lathis.Section 147 IPC is punishable section for “rioting”. “Force” isdefined under Section 349 IPC. As per Section 349 IPC, “force”means “A person is said to use force to another if he causesmotion, change of motion, or cessation of motion to thatCother…….” [Paras 9, 9.1][739-A-G]

4.1 All the accused persons were the members of theunlawful assembly and the common intention was “to snatch thevoters slips and to cast bogus voting”. They used force andviolence also. It is the case on behalf of the accused that there isDno specific role attributed to them for the offence of rioting underSection 147 IPC. However, where there are large number ofassailants, it can be difficult for witnesses to identify each assailantand attribute specific role to him. In the present case, the incidenttoo concluded within few minutes and therefore it is natural thatexact version of incident revealing every minute detail, i.e.,Emeticulous exactitude of individual acts cannot be given byeyewitnesses. Even otherwise, every member of the unlawfulassembly is guilty of the offence of rioting even though hemay not have himself used force or violence. [Para 9.1][739-H;740-A-C]FAbdul Sayeed v. State of MP (2010) 10 SCC 259 :[2010] 13 SCR 311; Mahadev Sharma v. State of Bihar

[1966] 1 SCR 18 : AIR 1966 SC 302 – relied on.

4.2 Thus, once the unlawful assembly is established inprosecution of the common object, i.e., in the present case, “toGsnatch the voters list and to cast bogus voting”, each member ofthe unlawful assembly is guilty of the offence of rioting. The useof the force, even though it be the slightest possible character byany one member of the assembly, once established as unlawfulconstitutes rioting. It is not necessary that force or violence mustH

be by all but the liability accrues to all the members of the unlawfulassembly. Some may encourage by words, others by signs whileothers may actually cause hurt and yet all the members of theunlawful assembly would be equally guilty of rioting. In the instantcase, all the accused are found to be the members of the unlawfulassembly in prosecution of the common object, i.e., “to snatchthe voters list and to cast bogus voting” and PW5, PW8, PW10& PW12 sustained injuries caused by members of the unlawfulassembly, the appellants-accused are rightly convicted underSection 147 IPC for the offence of rioting. [Para 9.1][740-E-H]5. Though in the instant case, it was established and provedthat all the accused were the members of the unlawful assemblyin prosecution of the common object, namely, “to snatch thevoters list and to cast bogus voting” and were convicted for theoffence under Section 147 IPC, the trial Court had imposed thesentence of only six months simple imprisonment. In the case ofPeople’s Union for Civil Liberties, it was observed by this Courtthat freedom of voting is part of the freedom of expression. Itwas further observed that secrecy of casting vote is necessaryfor strengthening democracy. The essence of the electoral systemshould be to ensure freedom of voters to exercise their freechoice. Therefore, any attempt of booth capturing and/or bogusvoting should be dealt with iron hands because it ultimately affectsthe rule of law and democracy. Nobody can be permitted to dilutethe right to free and fair election. However, as the State has notpreferred any appeal against imposing of only six months simpleimprisonment, we rest the matter there. [Para 10][741-B-F]

People’s Union for Civil Liberties v. Union of India(2013) 10 SCC 1 : [2013] 12 SCR 283 – relied on.

Kutumbaka Krishna Mohan Rao v. Public Prosecutor,High Court of A.P. 1991 Supp. 2 SCC 509; Inder Singhv. State of Rajasthan (2015) 2 SCC 734 : [2015]1 SCR 563; State of MP v. Mansingh (2003) 10 SCC414 : [2003] 2 Suppl. SCR 460; State of Uttar Pradeshv. Naresh (2011) 4 SCC 324 : [2011] 4 SCR 1176;Kalabhai Hamirbhai Kachhot v. State of Gujarat (2021)SCC Online SC 347 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.606 of 2021

From the Judgment and Order dated 31.10.2018 of the High CourtDof Jharkhand at Ranchi in Cr. Appeal (S.J) No.232 of 1999(R).

With

Criminal Appeal Nos. 630-631 of 2021

Manoj Swarup, Sr. Adv., Dharmendra Kumar Sinha, Rajiv KumarJha, Onkar Prasad, Advs. for the appellant.E

Arunabh Chowdhury, AAG, Ms. Pallavi Langar, Tapesh KumarSingh, Aditya Pratap Singh, Ms. Bhaswati Singh, Advs. for therespondent.

The Judgment of the Court was delivered byF

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 31.10.2018 passed by the High Court ofJharkhand at Ranchi in Criminal Appeal Nos. 232/1999 and 242/1999,by which the High Court has dismissed the said appeals preferred by theGappellants herein and has confirmed the judgment and order of convictionand sentence passed by the learned trial Court convicting the appellantsfor the offences under Sections 323 and 147 IPC and sentencing themto undergo six months simple imprisonment under both sections, originalaccused nos. 9, 8, 12, 11, 10, 14, 2 and 13 – Lakshman Singh, ShivHKumar Singh, Upendra Singh, Vijay Singh, Sanjay Prasad Singh, Rajmani

Singh, Ayodhya Prasad Singh and Ramadhar Singh have preferred thepresent appeals.

2. As per the case of the prosecution, an FIR was lodged at PaatanPolice Station by the first informant – Rajeev Ranjan Tiwari on 26.11.1989alleging inter alia that on the eve of general election, he was working asa worker of Bhartiya Janta Party at village Golhana Booth No. 132under Paatan Police Station and was issuing slips to the voters towardstwo hundred yards north away from the polling booth; at that time, ataround 10:40 a.m., the accused persons who belong to another villageNaudiha came armed with lathis, sticks, country made pistols and askedhim to stop issuing voter slips and handover the voters list which he waspossessing and on his refusal the accused persons started physicallybeating him (PW8 – Rajiv Ranjan Tiwari) with hands, fists, lathis andsticks; the brother of the first informant-PW8, Priya Ranjan Tiwari(PW10) upon knowing about the incident came to rescue him and at thattime accused Dinanath Singh @ Dina Singh fired gun shot at PW10with his country made pistol, due to which he received pellet injuries.Accused Ajay Singh fired at Dinesh Tiwari (PW12), due to which hewas injured. It was further alleged that due to scuffle, accused HiraSingh snatched wrist watches of PW8 & PW10; the villagers rushedthere and then all the accused persons ran away towards village Naudhia.Based on the statement of PW8 – Rajiv Ranjan Tiwari, which wasrecorded at 12:30 p.m. on 26.11.1989, an FIR was registered at about2:00 p.m. on the very day, i.e., 26.11.1989 against 16 accused namedpersons 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 tobe noted that even some of the accused – Lakshman Singh, Shiv KumarSingh and Ayodhya Prasad Singh also sustained injuries. After conclusionof the investigation, the investigating officer filed chargesheet against 15accused including the appellants herein.

2.1 The learned trial Court framed the charge against the accusedpersons for the offences under Sections 323, 307, 147, 149 and 379 IPC.Accused Dinanath Singh and Ajay Singh were further charged underSections 148 IPC and accused Hira Singh was also charged under Section379 IPC. As the case was exclusively triable by the Court of Sessions,the case was committed to the learned Sessions Court, which wasnumbered as Sessions Trial No. 36 of 1991.

2.2 To prove the case against the accused, the prosecutionexamined in all 15 witnesses including PW8, the first informant – Rajiv

ARanjan Tiwari, Priya Ranjan Tiwari (PW10) the brother of the firstinformant and PW5 – Dilip Kumar Tiwari, who all were injured eyewitnesses. The prosecution also examined Dr. Jawahar Lal (PW7), whoexamined PW10, PW12 and PW5 on the very day at Sadar Hospital,Daltonganj and who found injuries on the said persons. The prosecutionalso examined the investigating officer – Shivnandan Mahto (PW13).BProsecution also examined independent witnesses, i.e., PW1, PW3 &PW4. After closure of the evidence on behalf of the prosecution,statements of the accused persons under Section 313 Cr.P.C. wererecorded. They denied to the allegations. The defence also examinedDW1 to prove the injuries on accused Ayodhya Prasad Singh, RamaCSingh, Shiv Kumar Singh and Lakshman Singh and brought on recordtheir injury reports.2.3 Thereafter, on conclusion of the full-fledged trial and onappreciation of the entire evidence on record and relying upon thedeposition of PW8, PW10 & PW5, who all were injured eyewitnessesDand other eyewitnesses, the learned trial Court convicted the appellantsherein for the offences under Sections 323 and 147 IPC and sentencedthem to undergo six months simple imprisonment for both the offences.The learned trial Court also convicted accused Dinanath Singh for theoffences under Sections 326 & 148 IPC and sentenced him to undergoseven years and two years RI respectively. The learned trial Court alsoEconvicted accused Ajay Singh for the offences under Sections 324 &148 IPC and sentenced him to undergo three years & two years RIrespectively.

2.4 Feeling aggrieved and dissatisfied with the judgment and orderof conviction and sentence, convicting and sentencing the appellantsFherein, original accused nos. 9, 8, 12, 11, 10, 14, 2 preferred appeal alongwith other accused being Criminal Appeal No.232 of 1999 and accusedno. 13 preferred appeal being Criminal Appeal No. 242 of 1999 beforethe High Court. By the common impugned judgment and order, the HighCourt has dismissed the said appeals and has confirmed the judgmentGand order of conviction and sentence passed by the learned trial Court.2.5 Feeling aggrieved and dissatisfied with the impugned commonjudgment and order passed by the High Court, original accused nos. 9, 8,12, 11, 10, 14, 2 & 13 have preferred the present appeals.

3. Shri Manoj Swarup, learned Senior Advocate has appeared onHbehalf of the appellants – accused and Shri Arunabh Chowdhury, learned

Additional Advocate General in Criminal Appeal No. 606/2021 and ShriTapesh Kumar Singh, learned Advocate in Criminal Appeal Nos. 630-631/2021 have appeared for the State of Jharkhand.

3.1 Learned Senior Advocate appearing on behalf of the appellants– accused has vehemently submitted that in the facts and circumstancesof the case both, the learned trial Court as well as the High Court havecommitted grave error in convicting the accused for the offences underSections 323, 147 IPC.

3.2 It is further submitted that both the courts below have materiallyerred in relying upon the deposition of PW8, PW10 & PW5. It is submittedthat the aforesaid witnesses are unreliable and untrustworthy. It issubmitted that they are not the independent witnesses. It is submittedthat as such PW12 – Dinesh Tiwary turned hostile. It is submitted thatthe aforesaid witnesses belong to the same village.

3.3 It is further submitted that even both the courts below havematerially erred in coming to the conclusion that the appellants werepart of the unlawful assembly and thereby have committed grave errorin convicting the accused for the offence under Section 147 IPC.

3.4 It is further submitted that the motive has not been establishedand proved. It is submitted that the common object was alleged to be tocast bogus votes, which was never cast. It is submitted that even thevoter slip was also available with all other parties and therefore themotive as per the prosecution case is questionable.

3.5 It is further submitted that so far as the impugned judgmentand order passed by the High Court is concerned, the individual roleand/or the merits of the case qua the respective appellants – accusedhave not at all been considered by the High Court. It is submitted thatthe High Court has only stated at page 26, para 23 qua the presentappellants that so far as the rests of the appellants are concerned, theyhave been rightly held guilty under Sections 323 & 147 IPC. It is submittedthat there is no independent assessment of the evidence qua the appellantsherein.3.6 It is further submitted that both the courts below have notproperly appreciated the fact that the presence of the accused at thepolling station was natural. It is submitted that because of the bye-election,the accused persons along with the other persons belonging to differentpolitical parties were present. It is submitted that it was natural for thepeople belonging to different parties to call persons from different villages

[2021] 6 S.C.R.

Aor otherwise to be present at booth and that itself would not be sufficientto prove the guilt.

3.7 It is further submitted that even otherwise, the courts belowhave materially erred in convicting the accused for the offence underSection 323 IPC. It is submitted that so far as PW8 – informant isBconcerned, there was no injury sustained by him. It is submitted that noinjury certificate of PW8 has been brought on record. It is submittedthat the prosecution has brought on record the injury certificates of threepersons only, namely, PW10 -Priya Ranjan Tiwari, PW12 – Dinesh Tiwariand PW5 – Dilip Tiwari. It is submitted that all the injuries are by gunshotexcept two simple injuries caused to Dinesh Tiwari – PW12. It is submittedCthat PW12 turned hostile. It is submitted that the appellants are allegedto have used lathis and sticks only against the first informant – PW8 asper the prosecution case. It is submitted that therefore in the absence ofany corroborating evidence/material in support of the case of theprosecution that the appellants have beaten PW8 and sustained injuries,Dthe courts below have materially erred in convicting the accused for theoffence under Section 323 IPC.

3.8 It is further submitted that even the conduct on the part of thefirst informant – PW8 creates doubt about his credibility. It is submittedthat he has roped in several persons belonging to the opposite camp. It isEsubmitted that after the incident he went to the village and the policeSHO came to his house and taken him to the government hospital, Patanand thereafter recorded his fardbyan (statement). It is submitted thatneither he went to his injured brother nor he has ever gone to see him atthe hospital nor any family member went to see the injured in the hospital.It is submitted that in such circumstances, PW8 is not reliable andFtrustworthy witness and therefore the courts below ought not to haverelied upon the deposition of PW8.

3.9 It is further submitted that even there is no recovery of lathisand sticks. It is submitted that even the voting slips have also not beenrecovered from the informant. It is submitted that non-exhibit of voterGslips demolishes the case of the prosecution. It is submitted that FIR,PW1 and informant and consistently all witnesses have stated that RajivRanjan Tiwari refused to give voter slips to the accused, upon whichscuffle occurred. It is submitted that the voting slips are not exhibited. Itis submitted therefore uncorroborated testimony of asking voter slips isnot proved.H

3.10 Making the above submissions and relying upon the decisionsof this Court in the cases of Kutumbaka Krishna Mohan Rao v. PublicProsecutor, High Court of A.P., reported in 1991 Supp. 2 SCC 509and Inder Singh v. State of Rajasthan, reported in (2015) 2 SCC734, it is prayed to allow the present appeals.

4. The present appeals are opposed by the learned counselappearing on behalf of the State of Jharkhand.

4.1 It is submitted that as such there are concurrent findings offact recorded by both, the learned trial Court as well as the High Court,holding the appellants guilty for the offences under Sections 323 & 147IPC.

4.2 It is submitted that in the present case the prosecution hasbeen successful in proving the case against the accused by examiningPW8, PW10 & PW5, who are the injured eyewitnesses. It is submittedthat the injured eyewitnesses – PW8, PW10 & PW5 are reliable andtrustworthy. It is submitted that all the aforesaid three witnesses werethoroughly cross-examined and from cross-examination, nothing adverseto 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 thecase of the prosecution. It is submitted that as such the learned trialCourt has discussed the entire evidence on record and analysed theinjury reports and thereafter by detailed judgment has convicted theappellants for the offence of voluntarily causing hurt under Section 323IPC and for the offence of rioting under Section 147 IPC. It is submittedthat all the appellants have been guilty for the offence of rioting punishableunder Section 147 IPC. It is submitted that for the offence of rioting,there has to be,

i)an unlawful assembly of 5 or more persons as defined inSection 141 IPC, i.e., an assembly of 5 or more personsand such assembly was unlawful;

ii)the unlawful assembly must use force or violence. Force isGdefined in Section 349 IPC; and

iii)the force or violence used by an unlawful assembly or byany member thereof must be in prosecution of the commonobject of such assembly in which case every member ofsuch assembly is guilty of the offence of rioting.H

AIt is submitted that in the present case, all the ingredients of riotingas defined under Section 146 of the IPC has been established and proved.

4.3 It is submitted that as held by this Court in the case of MahadevSharma v. State of Bihar, (1966) 1 SCR 18 = AIR 1966 SC 302, ‘thatevery member of the unlawful assembly is guilty of the offence of riotingBeven though he may not have himself used force or violence’. It issubmitted that as held by this Court, ‘offence of rioting under Section146 IPC is said to be committed when the unlawful assembly or anymember thereof in prosecution of the common object of such assemblyuses force or violence’. It is submitted that therefore once the unlawfulassembly is established in prosecution of the common object, i.e., in theCpresent case, as held by the courts below, the common object was “tosnatch the voter list and to cast bogus voting”, each member of theunlawful assembly is guilty for the offence of rioting. It is submitted thatthe use of force, even though it be the slightest possible character byany one member of the assembly, once established as unlawful constitutesDrioting. It is submitted that it is not necessary that force or violence mustbe by all but the liability accrues to all the members of the unlawfulassembly. It is submitted that some may encourage by words, others bysigns while others may actually cause hurt and yet all members of theunlawful assembly would be equally guilty of rioting. It is submitted thatin the present case both the courts below have found the appellants asEan active participant in the offence and they cannot be said to be thewayfarers or spectators.

4.4 It is submitted that so far as the offence of voluntarily causinghurt as defined under Section 321 IPC and punishable under Section 323IPC is concerned, it is submitted that the injuries sustained by PW5 toFPW8 and PW12 are simple injuries while PW10 sustained grievousinjuries. 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 whichGestablish beyond doubt their presence and participation. It is submittedthat in their statement under Section 313 Cr.P.C., they have not explainedtheir injuries at all.

4.5 It is further submitted that as PW5, PW8 & PW10 are injuredwitnesses, as held by this Court in catena of decisions, evidence of anHinjured eye witness has great evidentiary value and unless compelling

reasons exist, their statements are not to be discarded lightly. It issubmitted that very cogent and convincing grounds are required to discardthe evidence of the injured witness. Reliance is placed on the judgmentsof this Court in the cases of State of MP v. Mansingh (2003) 10 SCC414(para 9); Abdul Sayeed v. State of MP (2010) 10 SCC 259;Ramvilas v. State of Madhya Pradesh, (2016) 16 SCC 316 (para6); State of Uttar Pradesh v. Naresh, (2011) 4 SCC 324 (para 27);and the recent decision in the case of Kalabhai Hamirbhai Kachhotv. State of Gujarat, (2021) SCC Online SC 347 (paras 20 & 21).

4.6 It is further submitted that in the present case, right from thevery beginning, all the accused were named in the FIR and their role andcomplicity have been established with trustworthy, reliable and cogentevidence. It is submitted that all the accused persons including the presentappellants formed the unlawful assembly in furtherance of the commonobject “to snatch the voter list and to cast bogus voting” and actuallyparticipated in the occurrence and committed the offences. It is submittedthat as such there is no ground to disbelieve the evidence of the injuredeye witnesses/eye witnesses.

4.7 It is further submitted that as such the learned trial Court tooka very lenient view in imposing the sentence of only six months simpleimprisonment. It is submitted that once the appellants were found to bethe members of the unlawful assembly with common object and lookingto the injuries sustained by PW5, PW10 & PW12 who sustained injuriesby fired arm also, as such, all the appellants-accused ought to have beenconvicted along with other accused for the offences under Sections 307,326, 324 and 148 IPC also.

4.8 It is further submitted that bogus voting seriously underminesthe most basic feature of democracy and interferes with the conduct offree and fair election which has been held by this Court in the case ofPeople’s Union for Civil Liberties v. Union of India, (2013) 10 SCC1, to include within its ambit the right of an elector to cast his votewithout fear or duress. It is submitted that as held by this Court in theaforesaid decision, free and fair election is basic structure of theConstitution and necessarily includes within its ambit the right of an electorto cast his vote without fear of reprisal, duress or coercion. It is submittedthat therefore when the trial Court has shown leniency to the appellantsin sentencing them only for six months simple imprisonment, nointerference of this Court is called for.

A4.9. Making the above submissions and relying upon the aforesaiddecisions, it is prayed to dismiss the present appeals.

5. We have heard the learned counsel for the respective partiesat length. We have meticulously scanned the entire evidence on recordand also the findings recorded by the learned trial Court, which are onBappreciation of the evidence on record. At the outset, it is required to benoted that all the accused herein are convicted for the offences underSection 323 and 147 IPC and are sentenced to undergo six months simpleimprisonment for both the offences and the sentences are directed torun concurrently.CIt is true that in the impugned judgment the High Court has not atall 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 againstthe judgment and order of conviction. However, as for the reasons statedhereinbelow and ultimately, we agree with the final conclusion of theDHigh Court confirming the judgment and order passed by the learnedtrial Court, instead of remanding the matter to the High Court, weourselves have re-appreciated the entire evidence on record.

5.1 In the present case, while convicting the accused, the learnedtrial Court has heavily relied upon the deposition of PW1, PW3 andEPW4, who are the independent witnesses and PW5, PW8 & PW10,who are the injured witnesses. The presence of the independent witnessesand even the injured witnesses at the place of the incident is natural.PW1, PW3 & PW4, all of whom were the residents of the village andthey came there to cast their votes and witnessed the incident. All theFwitnesses, PW1, PW3 & PW4 have identified all the accused personsand supported the case of the prosecution fully. PW5, PW8, PW10 andeven PW12 are injured eyewitnesses. Injuries on PW5, PW10 & PW12have been established and proved by the prosecution by examining Dr.Jawahar Lal (PW7), who examined the above injured witnesses. Theirinjury reports are placed on record by way of Exhibit 1, 1/1 and ½. AllGthe witnesses have unequivocally and in the same voice have stated thatat the relevant time when the voting was going on for the Lok Sabhaconstituency and at that time PW8 - Rajiv Ranjan Tiwari was givingslips to the voters and at that time at about 10:40 a.m. all the accusedpersons belonging to another village came there and asked him to stopHgiving 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 atthat time one Dinanath Singh took out his country made pistol and firedupon him causing several fire-armed injuries. All the accused personswere named right from the very beginning of lodging the FIR and all theaccused persons were specifically named by all the witnesses and/orfully supported the case of the prosecution. At this stage, it is required tobe noted that even some of the accused namely, – Lakshman Singh,Shiv Kumar Singh and Ayodhya Prasad Singh sustained injuries andthey have failed to explain their injuries in their 313 statements. Thus,their presence at the time and place of incident has been established andproved even otherwise. At the cost of the repetition, it is observed thatPW5, PW8 and PW10 are the injured witnesses. Even after they havebeen fully cross-examined, they have fully supported the case of theprosecution, even after thorough cross-examination on behalf of theaccused.6. In the case of Mansingh (supra), it is observed and held bythis Court that “the evidence of injured witnesses has greater evidentiaryvalue and unless compelling reasons exist, their statements are not to bediscarded lightly”. It is further observed in the said decision that “minordiscrepancies do not corrode the credibility of an otherwise acceptableevidence”. It is further observed that “mere non-mention of the name ofan eyewitness does not render the prosecution version fragile”.

6.1 similar view has been expressed by this Court in thesubsequent decision in the case of Abdul Sayeed (supra). It was thecase of identification by witnesses in crowd of assailants. It is heldthat “in cases where there are large number of assailants, it can bedifficult for witnesses to identify each assailant and attribute specificrole to him”. It is further observed that “when incident stood concludedwithin few minutes, it is natural that exact version of incident revealingevery minute detail, i.e., meticulous exactitude of individual acts, cannotbe given by eyewitnesses”. It is further observed that “where witness tooccurrence was himself injured in the incident, testimony of such witnessis generally considered to be very reliable, as he is witness that comeswith an inbuilt guarantee of his presence at the scene of crime and isunlikely to spare his actual assailant(s) in order to falsely implicatesomeone”. It is further observed that “thus, deposition of injured witnessshould be relied upon unless there are strong grounds for rejection of hisevidence on basis of major contradictions and discrepancies therein”.

A6.2 The aforesaid principle of law has been reiterated again bythis Court in the case of Ramvilas (supra) and it is held that “evidenceof injured witnesses is entitled to great weight and very cogent andconvincing grounds are required to discard their evidence”. It is furtherobserved that “being injured witnesses, their presence at the time andplace of occurrence cannot be doubted”.B

7. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand, we see no reason to doubt thecredibility and/or trustworthiness of PW1, PW3 & PW4 and moreparticularly PW5, PW8 & PW10, who are the injured witnesses. All thewitnesses are consistent in their statements and they have fully supportedCthe case of the prosecution. Under the circumstances, the courts belowhave not committed any error in convicting the accused, relying uponthe depositions of PW1, PW3, PW4, PW5, PW8 & PW10.8. Now so far as the submission on behalf of the appellants –accused that all the appellants were alleged to have armed with lathisDand so far as PW8 is concerned, no injury report is forthcoming and/orbrought on record and therefore they cannot be convicted for the offenceunder Section 323 IPC is concerned, at the outset, it is required to benoted that PW8 in his examination-in-chief/deposition has specificallystated that after he sustained injuries, treatment was provided atEGovernment Hospital, Paatan. He has further stated in the cross-examination on behalf of all the accused persons except accused DinanathSingh that he sustained 2-3 blows of truncheons. He has also stated thathe does not exactly remember that how many blows he suffered.According to him, he first went to Police Station, Paatan along with theSHO of Police Station, Paatan, where his statement was recorded andFthereafter the SHO sent him to Paatan Hospital for treatment. Thus, hewas attacked by the accused persons by lathis/sticks and he sustainedinjuries and was treated at Government Hospital, Paatan has beenestablished and proved. It may be that there might not be any seriousinjuries and/or visible injuries, the hospital might not have issued the injuryreport. However, production of an injury report for the offence underGSection 323 IPC is not sine qua non for establishing the case for theoffence under Section 323 IPC. Section 323 IPC is punishable sectionfor voluntarily causing hurt. “Hurt” is defined under Section 319 IPC.As per Section 319 IPC, whoever causes bodily pain, disease or infirmityto any person is said to cause “hurt”. Therefore, even causing bodilyHpain can be said to be causing “hurt”. Therefore, in the facts and

circumstances of the case, no error has been committed by the courtsbelow for convicting the accused under Section 323 IPC.

9. Now so far as the conviction of the accused under Section 147IPC is concerned, the presence of all the accused persons at the time ofincident and their active participation has been established and provedby the prosecution by examining the aforesaid witnesses who are theindependent witnesses and injured witnesses also. The accused personsbelong to another village. They formed an unlawful assembly inprosecution of common object, i.e., “to snatch the voters list and to castbogus voting”. It has been established and proved that they used theforce and, in the incident, PW5, PW8, PW10 & PW12 sustained injuries.All the accused persons-appellants were having lathis. Section 147 IPCis punishable section for “rioting”. The offence of “rioting” is definedin Section 146 IPC, which reads as under:

“146. Rioting – Whenever force or violence is used by an unlawfulassembly, or by any member thereof, in prosecution of the commonobject of such assembly, every member of such assembly is guiltyof the offence of rioting.”

On fair reading of the definition of “rioting” as per Section 146IPC, for the offence of “rioting”, there has to be,

i)an unlawful assembly of 5 or more persons as defined inSection 141 IPC, i.e., an assembly of 5 or more personsand such assembly was unlawful;

ii)the unlawful assembly must use force or violence. Force isdefined in Section 349 IPC; and

iii)the force or violence used by an unlawful assembly or byany member thereof must be in prosecution of the commonobject of such assembly in which case every member ofsuch assembly is guilty of the offence of rioting.

9.1 “Force” is defined under Section 349 IPC. As per Section 349IPC, “force” means “A person is said to use force to another if hecauses motion, change of motion, or cessation of motion to thatother…….”

As observed hereinabove, all the accused persons were themembers of the unlawful assembly and the common intention was “tosnatch the voters slips and to cast bogus voting”. They used force and

Aviolence also, as observed hereinabove. It is the case on behalf of theaccused that there is no specific role attributed to them for the offenceof rioting under Section 147 IPC. However, as observed hereinaboveand as held by this Court in the case of Abdul Sayeed (supra), wherethere are large number of assailants, it can be difficult for witnesses toidentify each assailant and attribute specific role to him. In the presentBcase, the incident too concluded within few minutes and therefore it isnatural 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 Sharma(supra), every member of the unlawful assembly is guilty of the offenceCof rioting even though he may not have himself used force or violence.In paragraph 7, it is observed and held as under:

“7. Section 146 then defines the offence of rioting. This offenceis said to be committed when the unlawful assembly or any memberthereof in prosecution of the common object of such assemblyDuses force or violence. It may be noticed here that every memberof the unlawful assembly is guilty of the offence of rioting eventhough he may not have himself used force or violence. There isthus vicarious responsibility when force or violence is used inprosecution of the common object of the unlawful assembly.”

EThus, once the unlawful assembly is established in prosecution ofthe common object, i.e., in the present case, “to snatch the voters listand to cast bogus voting”, each member of the unlawful assembly isguilty of the offence of rioting. The use of the force, even though it bethe slightest possible character by any one member of the assembly,once established as unlawful constitutes rioting. It is not necessary thatFforce or violence must be by all but the liability accrues to all the membersof the unlawful assembly. As rightly submitted by the learned counselappearing on behalf of the State, some may encourage by words, othersby signs while others may actually cause hurt and yet all the members ofthe unlawful assembly would be equally guilty of rioting. In the presentGcase, all the accused herein are found to be the members of the unlawfulassembly in prosecution of the common object, i.e., “to snatch the voterslist and to cast bogus voting” and PW5, PW8, PW10 & PW12 sustainedinjuries caused by members of the unlawful assembly, the appellants-accused are rightly convicted under Section 147 IPC for the offence ofrioting.H

10. In view of the above, we are of the firm view that the appellantsare rightly convicted under Sections 323 and 147 IPC and sentenced toundergo six months simple imprisonment only for the said offences.

Before parting, we may observe that though in the present case ithas been established and proved that all the accused were the membersof the unlawful assembly in prosecution of the common object, namely,“to snatch the voters list and to cast bogus voting” and have been convictedfor the offence under Section 147 IPC, the trial Court has imposed thesentence of only six months simple imprisonment. In the case of People”sUnion for Civil Liberties (supra), it is observed by this Court thatfreedom of voting is part of the freedom of expression. It is furtherobserved that secrecy of casting vote is necessary for strengtheningdemocracy. It is further observed that in direct elections of Lok Sabhaor State Legislature, maintenance of secrecy is must and is insistedupon all over the world in democracies where direct elections are involvedto ensure that voter casts his vote without any fear or being victimisedif his vote is disclosed. It is further observed that democracy and freeelections are part of the basic structure of the Constitution. It is alsofurther observed that the election is mechanism which ultimatelyrepresents the will of the people. The essence of the electoral systemshould be to ensure freedom of voters to exercise their free choice.Therefore, any attempt of booth capturing and/or bogus voting should bedealt with iron hands because it ultimately affects the rule of law anddemocracy. Nobody can be permitted to dilute the right to free and fairelection. However, as the State has not preferred any appeal againstimposing of only six months simple imprisonment, we rest the matterthere.

11. In view of the above and for the reasons stated hereinabove,all the appeals fail and deserve to be dismissed and are accordinglydismissed. Since, the applications for exemption from surrendering ofthe accused- appellants herein were allowed by this Court vide ordersdated 15.03.2019 and 08.07.2019 respectively, the accused-appellantsare directed to surrender forthwith to serve out their sentence.

Devika Gujral

Appeals dismissed.