Sections 323 and 147 IPC -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.
23
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 Liberties (supra), it 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
24
appeal against imposing of only six months simple imprisonment, we
rest the matter there.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 606 OF 2021
Lakshman Singh …Appellant
Versus
State of Bihar (now Jharkhand) …Respondent
WITH
CRIMINAL APPEAL NOS. 630-631 OF 2021
Shiv Kumar Singh & Others Etc. ...Appellants
Versus
State of Bihar (now Jharkhand) ...Respondent
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned common
judgment and order dated 31.10.2018 passed by the High Court of
1
Jharkhand at Ranchi in Criminal Appeal Nos. 232/1999 and 242/1999,
by which the High Court has dismissed the said appeals preferred by the
appellants herein and has confirmed the judgment and order of
conviction and sentence passed by the learned trial Court convicting the
appellants for the offences under Sections 323 and 147 IPC and
sentencing them to undergo six months simple imprisonment under both
sections, original accused nos. 9, 8, 12, 11, 10, 14, 2 and 13 –
Lakshman Singh, Shiv Kumar Singh, Upendra Singh, Vijay Singh,
Sanjay Prasad Singh, Rajmani Singh, Ayodhya Prasad Singh and
Ramadhar Singh have preferred the present appeals.
2. As per the case of the prosecution, an FIR was lodged at Paatan
Police Station by the first informant – Rajeev Ranjan Tiwari on
26.11.1989 alleging inter alia that on the eve of general election, he was
working as a worker of Bhartiya Janta Party at village Golhana Booth
No. 132 under Paatan Police Station and was issuing slips to the voters
towards two hundred yards north away from the polling booth; at that
time, at around 10:40 a.m., the accused persons who belong to another
village Naudiha came armed with lathis, sticks, country made pistols and
asked him to stop issuing voter slips and handover the voters list which
he was possessing and on his refusal the accused persons started
physically beating him (PW8 – Rajiv Ranjan Tiwari) with hands, fists,
2
lathis and sticks; the brother of the first informant-PW8, Priya Ranjan
Tiwari (PW10) upon 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 Tiwari (PW12), due 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
3
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. 36 of 1991.
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 Tiwari (PW10) the brother of the first informant and
PW5 – Dilip Kumar Tiwari, who all were injured eye witnesses. The
prosecution also examined Dr. Jawahar Lal (PW7), 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 (PW13).
Prosecution 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. were
recorded. They denied to the allegations. The defence also examined
DW1 to prove the injuries on accused Ayodhya Prasad Singh, Rama
Singh, Shiv Kumar Singh and Lakshman Singh and brought on record
their injury reports.
2.3 Thereafter, on conclusion of the full-fledged trial and on
appreciation of the entire evidence on record and relying upon the
deposition of PW8, PW10 & PW5, who all were injured eyewitnesses
4
and other eyewitnesses, the learned trial Court convicted the appellants
herein for the offences under Sections 323 and 147 IPC and sentenced
them to undergo six months simple imprisonment for both the offences.
The learned trial Court also convicted accused Dinanath Singh for the
offences under Sections 326 & 148 IPC and sentenced him to undergo
seven years and two years RI respectively. The learned trial Court also
convicted accused Ajay Singh for the offences under Sections 324 & 148
IPC and sentenced him to undergo three years & two years RI
respectively.
2.4 Feeling aggrieved and dissatisfied with the judgment and order of
conviction and sentence, convicting and sentencing the appellants
herein, original accused nos. 9, 8, 12, 11, 10, 14, 2 preferred appeal
along with other accused being Criminal Appeal No.232 of 1999 and
accused no. 13 preferred appeal being Criminal Appeal No. 242 of 1999
before the High Court. By the common impugned judgment and order,
the High Court has dismissed the said appeals and has confirmed the
judgment and order of conviction and sentence passed by the learned
trial Court.
2.5 Feeling aggrieved and dissatisfied with the impugned common
judgment and order passed by the High Court, original accused nos. 9,
8, 12, 11, 10, 14, 2 & 13 have preferred the present appeals.
5
3. Shri Manoj Swarup, learned Senior Advocate has appeared on
behalf of the appellants – accused and Shri Arunabh Chowdhury,
learned Additional Advocate General in Criminal Appeal No. 606/2021
and Shri Tapesh 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 circumstances
of the case both, the learned trial Court as well as the High Court have
committed a grave error in convicting the accused for the offences under
Sections 323, 147 IPC.
3.2 It is further submitted that both the courts below have materially
erred in relying upon the deposition of PW8, PW10 & PW5. It is
submitted that the aforesaid witnesses are unreliable and untrustworthy.
It is submitted that they are not the independent witnesses. It is
submitted that as such PW12 – Dinesh Tiwary turned hostile. It is
submitted that the aforesaid witnesses belong to the same village.
3.3 It is further submitted that even both the courts below have
materially erred in coming to the conclusion that the appellants were part
of the unlawful assembly and thereby have committed a grave error in
convicting the accused for the offence under Section 147 IPC.
6
3.4 It is further submitted 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. It is submitted that even the voter
slip was also available with all other parties and therefore the motive as
per the prosecution case is questionable.
3.5 It is further submitted that so far as the impugned judgment and
order passed by the High Court is concerned, the individual role and/or
the merits of the case qua the respective appellants – accused have not
at all been considered by the High Court. It is submitted that the High
Court has only stated at page 26, para 23 qua the present appellants
that so far as the rests of the appellants are concerned, they have been
rightly held guilty under Sections 323 & 147 IPC. It is submitted that
there is no independent assessment of the evidence qua the appellants
herein.
3.6 It is further submitted that both the courts below have not properly
appreciated the fact that the presence of the accused at the polling
station was natural. It is submitted that because of the bye-election, the
accused persons along with the other persons belonging to different
political parties were present. It is submitted that it was natural for the
people belonging to different parties to call persons from different
7
villages or otherwise to be present at booth and that itself would not be
sufficient to prove the guilt.
3.7 It is further submitted that even otherwise, the courts below have
materially erred in convicting the accused for the offence under Section
323 IPC. It is submitted that so far as PW8 – informant is concerned,
there was no injury sustained by him. It is submitted that no injury
certificate of PW8 has been brought on record. It is submitted that the
prosecution has brought on record the injury certificates of three persons
only, namely, PW10 -Priya Ranjan Tiwari, PW12 – Dinesh Tiwari and
PW5 – Dilip Tiwari. It is submitted that all the injuries are by gunshot
except two simple injuries caused to Dinesh Tiwari – PW12. It is
submitted that PW12 turned hostile. It is submitted that the appellants
are alleged to have used lathis and sticks only against the first informant
– PW8 as per the prosecution case. It is submitted that therefore in the
absence of any corroborating evidence/material in support of the case of
the prosecution that the appellants have beaten PW8 and sustained
injuries, the courts below have materially erred in convicting the accused
for the offence under Section 323 IPC.
3.8 It is further submitted that even the conduct on the part of the first
informant – PW8 creates doubt about his credibility. It is submitted that
he has roped in several persons belonging to the opposite camp. It is
8
submitted that after the incident he went to the village and the police
SHO came to his house and taken him to the government hospital,
Patan and thereafter recorded his fardbyan (statement). It is submitted
that neither he went to his injured brother nor he has ever gone to see
him at the hospital nor any family member went to see the injured in the
hospital. It is submitted that in such circumstances, PW8 is not a reliable
and trustworthy witness and therefore the courts below ought not to have
relied upon the deposition of PW8.
3.9 It is further submitted that even there is no recovery of lathis and
sticks. It is submitted that even the voting slips have also not been
recovered from the informant. It is submitted that non-exhibit of voter
slips demolishes the case of the prosecution. It is submitted that FIR,
PW1 and informant and consistently all witnesses have stated that Rajiv
Ranjan Tiwari refused to give voter slips to the accused, upon which
scuffle occurred. It is submitted that the voting slips are not exhibited. It
is submitted therefore uncorroborated testimony of asking voter slips is
not proved.
3.10 Making the above submissions and relying upon the decisions of
this Court in the cases of Kutumbaka Krishna Mohan Rao v. Public
Prosecutor, High Court of A.P., reported in 1991 Supp. 2 SCC 509 and
9
Inder Singh v. State of Rajasthan, reported in (2015) 2 SCC 734, it is
prayed to allow the present appeals.
4. The present appeals are opposed by the learned counsel
appearing on behalf of the State of Jharkhand.
4.1 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
IPC.
4.2 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
10
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,
i) 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;
ii) the unlawful assembly must use force or violence. Force is
defined in Section 349 IPC; and
iii) 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
proved.
4.3 It is submitted that as held by this Court in the case of Mahadev
Sharma v. State of Bihar, (1966) 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
11
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.
4.4 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
12
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.
4.5 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. Mansingh (2003)
10 SCC 414(para 9); Abdul Sayeed v. State of MP (2010) 10 SCC 259;
Ramvilas v. State of Madhya Pradesh, (2016) 16 SCC 316 (para 6);
State of Uttar Pradesh v. Naresh, (2011) 4 SCC 324 (para 27); and the
recent decision in the case of Kalabhai Hamirbhai Kachhot v. State of
Gujarat, (2021) SCC Online SC 347 (paras 20 & 21).
4.6 It is further submitted that in the present case, right from the very
beginning, all the accused were named in the FIR and their role and
complicity have been established with trustworthy, reliable and cogent
evidence. It is submitted that all the accused persons including the
present appellants formed the unlawful assembly in furtherance of the
common object “to snatch the voter list and to cast bogus voting” and
13
actually participated in the occurrence and committed the offences. It is
submitted that as such there is no ground to disbelieve the evidence of
the injured eye witnesses/eye witnesses.
4.7 It is further submitted that as such the learned trial Court took a
very lenient view in imposing the sentence of only six months simple
imprisonment. It is submitted that once the appellants were found to be
the members of the unlawful assembly with a common object and
looking to the injuries sustained by PW5, PW10 & PW12 who sustained
injuries by fired arm also, as such, all the appellants-accused ought to
have been convicted 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 undermines the
most basic feature of democracy and interferes with the conduct of free
and fair election which has been held by this Court in the case of
People’s Union for Civil Liberties v. Union of India, (2013) 10 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
14
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.
15
5.1 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 Lal (PW7), who 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
16
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 crossexamination on behalf of the accused.
6. In the case of Mansingh (supra), it 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
fragile”.
17
6.1 A similar view has been expressed by this Court in the subsequent
decision in the case of Abdul Sayeed (supra). It was the case of
identification by witnesses in a crowd of assailants. It is held that “in
cases where there are large number of assailants, it can be difficult for
witnesses to identify each assailant and attribute specific role to him”. It
is further observed that “when incident stood concluded within few
minutes, it is natural that exact version of incident revealing every minute
detail, i.e., meticulous exactitude of individual acts, cannot be given by
eyewitnesses”. It is further observed that “where witness to occurrence
was himself injured in the incident, testimony of such witness is generally
considered to be very reliable, as he is a witness that comes with an
inbuilt guarantee of his presence at the scene of crime and is unlikely to
spare his actual assailant(s) 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 Ramvilas (supra) and 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
18
observed that “being injured witnesses, their presence at the time and
place of occurrence cannot be doubted”.
7. 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.
8. 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 crossexamination 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
19
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.
9. 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
20
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,
i) 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;
ii) the unlawful assembly must use force or violence. Force is
defined in Section 349 IPC; and
iii) 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.
9.1 “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…….”
21
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 Sayeed (supra), where 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 Sharma (supra),
every 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:
“7. 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.”
22
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 appellantsaccused are rightly convicted under Section 147 IPC for the offence of
rioting.
10. 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.
23
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 Liberties (supra), it 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
24
appeal against imposing of only six months simple imprisonment, we
rest the matter there.
11. 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 accusedappellants 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.
…..………………………………..J.
[Dr. Dhananjaya Y. Chandrachud]
New Delhi; …………………………………….J.
July 23, 2021. [M.R. Shah]
25
