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.

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.”

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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.

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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

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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]

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