Patna High Court
Sunil Kumar @ Sunaina Sao @ Sunil vs The State Of Bihar on 24 April, 2026
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1098 of 2018
Arising Out of PS. Case No.-333 Year-1981 Thana- BIHAR District- Nalanda
======================================================
Ishwari Singh S/o Baldeo Singh, Resident of Mohalla- Alinagar, P.S.-
Biharsharif, District- Nalanda.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 979 of 2018
Arising Out of PS. Case No.-333 Year-1981 Thana- BIHAR District- Nalanda
======================================================
SUNIL KUMAR @ SUNAINA SAO @ SUNIL son of Late Ramu Sao,
resident of Village- Alinagar, P.S. Biharsharif, District Nalanda.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1030 of 2018
Arising Out of PS. Case No.-333 Year-1981 Thana- BIHAR District- Nalanda
======================================================
Nand Lal Yadav Son of Late Harangi Yadav, resident of Village/ Mohalla- Ali
Nagar, P.S. Bihar, District- Nalanda.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1063 of 2018
Arising Out of PS. Case No.-333 Year-1981 Thana- BIHAR District- Nalanda
======================================================
1. KISTO PATWA @ KISTU RAM and ANR S/o Late Mitar Patwa, R/o
Mohalla- Alinagar, P.S.- Bihar, District- Nalanda.
2. Ajay Singh S/o Late Hari Singh, R/o Mohalla- Alinagar, Ward No. 46, P.S.-
Bihar, District- Nalanda.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
2/142
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1067 of 2018
Arising Out of PS. Case No.-333 Year-1981 Thana- BIHAR District- Nalanda
======================================================
Laxman Ram S/o Late Chhedi Ram, R/o Mohalla- Alinagar, P.S.- Bihar,
District- Nalanda.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1124 of 2018
Arising Out of PS. Case No.-333 Year-1981 Thana- BIHAR District- Nalanda
======================================================
CHHOTEY KUMHAR @ CHOTE LAL PANDIT S/o Mahabir Kumhar, R/o
Vill./Mohalla- Ali Nagar, P.S.- Bihar Sharif, District- Nalanda.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1098 of 2018)
For the Appellant/s : Mr. Ravi Shankar Roy, Amicus Curiae
For the Respondent/s : Mr. Satya Narayan Prasad, Spl.PP
(In CRIMINAL APPEAL (DB) No. 979 of 2018)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Ritwaj Raman, Advocate
Mr. Nilesh Kumar
For the Respondent/s : Mr. Dilip Kumar Sinha, Spl.PP
(In CRIMINAL APPEAL (DB) No. 1030 of 2018)
For the Appellant/s : Mr. Rajendra Prasad, Sr. Advocate
Mr. Pramod Kumar, Advocate
Mr. Ritesh Kumar, Advocate
Mr. Dhirendra Kumar, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, Spl.PP
(In CRIMINAL APPEAL (DB) No. 1063 of 2018)
For the Appellant/s : Mr. Rajesh Kumar Singh, Sr. Advocate
Mr. Anil Kumar Singh, Advocate
Mr. Ashish Kumar, Advocate
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
3/142
Mr. Samir Kumar Bharti, Advocate
For the Respondent/s : Mr. Ashwani Kumar Sinha, Spl.PP
(In CRIMINAL APPEAL (DB) No. 1067 of 2018)
For the Appellant/s : Mr. Ravi Shankar Roy, Amicus Curiae
For the Respondent/s : Mr. Satya Narayan Prasad, Spl.PP
(In CRIMINAL APPEAL (DB) No. 1124 of 2018)
For the Appellant/s : Mr. Amit Narayan, Advocate
Mr. Aryan Kumar, Advocate
Mr. Praveen Kumar, Advocate
For the Respondent/s : Mr. Ajay Mishra, Spl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date: 24-04-2026
Prologue:
1. In the early summer of 1981, India stood at a
crossroads where hope and despair walked hand in hand. The
nation, still reeling from the political convulsions of the
Emergency and the short-lived Janata experiment, found itself
caught in the tightening grip of economic stagnation, spiraling
inflation, and deepening social fissures. Bihar, once the cradle
of ancient empires, had by then become a byword for chronic
backwardness, a land where grinding poverty and feudal land
relations cast long shadows over everyday life. In the villages
and mohallas of Nalanda and Bihar Sharif, ordinary citizens,
both Hindu and Muslim, eked out their existence through
small-scale trades like bidi-making, sharecropping, and petty
labour, their lives tethered to the uncertain rhythms of the
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agrarian economy, barely keeping body and soul together.
2. Yet beneath this surface of shared hardship lay a
simmering cauldron of communal discord, turning the entire
region into a powder keg where even the smallest spark could
set the whole place ablaze, as the people were unwittingly
playing with fire. As the old proverb wisely warns, a single
spark is enough to turn the entire forest into ashes. Minor
disputes over a graveyard, a religious procession, or a local
leader's ambition could ignite into flames that consumed
entire neighbourhoods Politically, the decade had dawned with
the resurgence of identity-based mobilisations. The RSS and
its affiliates were steadily expanding their influence in Bihar's
towns, while sections of the Muslim community, feeling
increasingly marginalised, looked to external leadership for
protection and assertion. Economic competition in mixed
localities like Alinagar, where Hindus and Muslims had long
lived in uneasy proximity, sharing water sources, markets, and
even workplaces, only sharpened these fault lines. Peace was
not a natural state but a fragile truce perpetually balanced on a
razor's edge. In such an atmosphere, a single spark, a rumour,
a slight, or an unresolved local grievance, was often enough to
fan the embers of suspicion into a raging inferno.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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3. It was against this charged atmosphere backdrop
of poverty, political polarisation, and latent communal tension
that the tragic events of 1 May 1981 unfolded in Alinagar
Mohalla. What began as a Friday afternoon of routine prayer
and daily toil rapidly descended into one of the darkest
chapters of Bihar's communal history, a day when houses
were set ablaze, women and children were dragged into the
open, and lives were extinguished in a frenzy of collective
violence. At least eleven men, women and children were
brutally murdered by outrageous mob, houses were set ablaze,
household belongings were looted and even today many
people of a particular community remain untraceable. The
present appeal calls upon this Court to sift through the
evidence of that fateful day with the cold eye of justice,
unswayed by the passions of the past, yet mindful of the
human cost exacted when the fragile threads that bind a
diverse society are torn asunder.
Factual Matrix
4. These batch of criminal appeals have been
preferred under Section 374(2) of the Code of Criminal
Procedure against the common judgment of conviction, dated
21.07.2018
and the order of sentence, dated 27.07.2018,
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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passed by the learned Presiding Officer, Fast Track Court-I,
Nalanda at Bihar Sharif, in Sessions Trial No. 108 of 1983,
arising out of Bihar P.S. Case No. 333 of 1981.
5. By the impugned judgment, the learned Trial
Court has been pleased to convict the appellants along with
several other accused persons for offences punishable under
Sections 148, 302/149, 307/149, 392/149 of the Indian Penal
Code and, in certain cases, also under Section 436 IPC and
other allied provisions. Upon conviction, the appellants have
been sentenced to undergo rigorous imprisonment for life for
the offence under Section 302/149 IPC along with fine, and
further sentenced under other provisions including Sections
307/149, 392/149 and 148 IPC, with a direction that all the
sentences shall run concurrently.
6. The prosecution case arises out of Bihar P.S. Case
No. 333 of 1981 registered on the basis of the fardbeyan of
one Md. Hasim recorded on 01.05.1981 at Sadar Hospital,
Bihar Sharif, alleging a large-scale incident of arson, assault
and murder in Mohalla Alinagar under Bihar Sharif Police
Station, District Nalanda.
7. The case involves allegations of formation of an
unlawful assembly consisting of a large number of persons,
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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armed with deadly weapons, who allegedly committed
offences including setting fire to residential houses, causing
injuries to several persons and committing murder of multiple
members of the informant’s family and community.
8. After completion of investigation, charge-sheet
was submitted against 63 accused persons. Upon cognizance
and commitment, the case was tried as Sessions Trial No. 108
of 1983. The Trial Court framed charge against 61 accused
persons. During trial, the prosecution examined 31 witnesses
and proved several documentary exhibits including
postmortem reports, injury reports, seizure lists, test
identification parade chart, dying declaration and formal First
Information Report.
9. Upon conclusion of trial, the learned Trial Court,
by the impugned judgment and order, convicted the appellants
and other accused persons as stated hereinabove, giving rise to
the present batch of appeals.
10. Since all the appeals arise out of the same
Sessions Trial, involve common evidence and relate to the
same occurrence, they are being heard and disposed of
together by this common judgment.
11. The prosecution case, as disclosed in the
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fardbeyan of Md. Hasim (P.W.14), recorded on 01.05.1981 at
about 8:00 P.M. at Sadar Hospital, Bihar Sharif, is that on the
same day at about 12:00 noon, the informant along with his
younger brother Sahabuddin had gone to Bari Dargah for
offering Namaz.
12. After the prayer in Dargah, when they were
coming back, the informant came to learn that fire had been
set in Mohalla Alinagar. Upon receiving such information, the
informant along with others reached Dargah Police Chowki
and thereafter, accompanied by police personnel, proceeded
towards his house situated in Mohalla Alinagar.
13. On reaching there, it was found that the house of
the informant had been set on fire and several members of his
family had sustained injuries. Among the injured persons were
Ishrat Begum, Md. Rizwan, Md. Alam, Nasima and Shamima
Bano, who were brought to the police outpost and thereafter
taken to Sadar Hospital for treatment. Other members of the
family were also brought to the outpost in subsequent trips.
14. The informant came to learn from his family
members that a large number of persons, numbering about
fifty to sixty, including named accused persons, had formed an
unlawful assembly and had attacked his house. It was alleged
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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that the said persons were variously armed with weapons such
as bhala, knife, lathi and other sharp cutting weapons and had
forcibly entered the house.
15. It was further alleged that the said accused
persons not only set the house on fire but also assaulted the
inmates indiscriminately, resulting in serious injuries to
several persons and the death of multiple members of the
informant’s family, including women and a child. Some of the
family members were stated to be missing. The dead bodies
were subsequently brought to Sadar Hospital.
16. It was also stated that Ishrat Begum, who had
sustained serious injuries, was lying unconscious at the time
and that she would disclose the names of the accused persons
upon regaining consciousness. The occurrence was stated to
have taken place in the backdrop of communal tension
between Hindu and Muslim communities.
17. On the basis of the aforesaid fardbeyan, Bihar
P.S. Case No. 333 of 1981 was instituted under Sections 147,
148, 302, 307, 326, 324, 448, 436, 380 and 323 of the Indian
Penal Code against certain named accused persons and several
unknown persons.
18. During the course of investigation, the police
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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recorded statements of witnesses, prepared seizure lists,
conducted inquest proceedings, obtained postmortem reports
of the deceased persons and injury reports of the injured
persons, and also conducted Test Identification Parade.
Proceeding in Trial Court
19. After completion of investigation, charge-sheet
was submitted against 63 accused persons. The learned Chief
Judicial Magistrate, Nalanda took cognizance of the offences
and the case was committed to the Court of Sessions on
05.04.1983, where it was registered as Sessions Trial No. 108
of 1983.
20. Charges were framed against the accused
persons under various provisions including Sections 153A,
364, 148, 201, 120B, 302/149, 307/149, 395/149, 295, 449
and 436/149 of the Indian Penal Code as well as under Section
3 of the Explosive Substances Act. The charges were read
over and explained to the accused persons, who denied the
same and claimed to be tried.
21. In order to prove its case, the prosecution
examined 31 witnesses, including medical officers,
eyewitnesses, formal witnesses and investigating officers. The
prosecution also proved several documents including
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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postmortem reports of the deceased persons, injury reports of
the injured persons, seizure lists, sketch map of the place of
occurrence, test identification parade chart, dying declaration
and formal First Information Report.
22. After closure of the prosecution evidence, the
statements of the accused persons were recorded under
Section 313 of the Code of Criminal Procedure, wherein they
denied the incriminating circumstances appearing against
them and claimed false implication. No evidence was adduced
on behalf of the defence.
Trial Court’s Judgement – Salient Points
23. The learned Trial Court, upon consideration of
the oral and documentary evidence adduced by the
prosecution, first examined the nature of the occurrence and
the medical evidence on record.
24. On the basis of the postmortem reports and the
evidence of the medical witnesses, namely P.W.1 and P.W.2,
the Trial Court recorded a categorical finding that the deaths
of the deceased persons were homicidal in nature. It was
observed that the injuries found on the bodies of the deceased
were caused by sharp cutting weapons as well as hard and
blunt substances and were sufficient in the ordinary course of
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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nature to cause death.
25. The Trial Court further considered the evidence
relating to the injured witnesses and found that the injuries
sustained by them were consistent with the prosecution case
of assault by a mob armed with deadly weapons.
26. The learned Trial Court then proceeded to
evaluate the ocular evidence of the prosecution witnesses. It
relied upon the testimonies of several witnesses, including
injured witnesses and other members of the informant’s
family, who supported the prosecution case regarding the
occurrence of arson, assault and murder by a large group of
persons. The court found that these witnesses had consistently
stated about the unlawful assembly, the use of weapons and
the acts of assault and burning of the house.
27. The Trial Court also took into account the Test
Identification Parade conducted by the Magistrate (P.W.25)
and held that the identification of certain accused persons by
the witnesses in the said parade lent corroboration to the
prosecution case.
28. Further, reliance was placed upon documentary
evidence including the dying declaration of Ishrat Begum,
seizure lists, sketch map and other exhibits to support the
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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prosecution version.
29. Upon appreciation of the entire evidence, the
Trial Court recorded a finding that the occurrence in question
was the result of communal violence and that a large unlawful
assembly had gathered with the common object of committing
offences including arson, assault and murder.
30. The Trial Court held that the prosecution had
succeeded in establishing the formation of an unlawful
assembly and the participation of its members in the
commission of offences. Accordingly, the provisions of
Section 149 of the Indian Penal Code were held to be
attracted.
31. The defence plea of false implication was
rejected by the Trial Court. It was observed that the
prosecution evidence was sufficient to establish the guilt of
the accused persons beyond reasonable doubt.
32. However, the Trial Court also found that the
evidence against all the accused persons was not uniform and,
accordingly, extended the benefit of doubt to certain accused
persons, while convicting others whose involvement was
found to be established on the basis of evidence on record.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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Accused-wise Findings
33. The learned Trial Court, while dealing with a
large number of accused persons, proceeded to assess the
evidence in respect of individual accused on the basis of
identification by witnesses, attribution of role and
corroboration from other evidence.
34. It is evident from the judgment that the Trial
Court relied primarily upon:
35. Identification of accused persons by
eyewitnesses and injured witnesses, both in court and in the
Test Identification Parade;
36. Attribution of presence and participation of the
accused in the unlawful assembly;
37. General role of assault, arson and participation
in mob violence, even in cases where specific overt acts were
not attributed individually;
38. Application of Section 149 IPC, holding that
once participation in the unlawful assembly with common
object was established, individual overt act was not necessary.
39. The Trial Court observed that in a case of mob
violence involving a large number of persons, it may not be
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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possible for witnesses to assign specific overt acts to each
accused and that the consistent evidence regarding
participation in the unlawful assembly was sufficient to attract
vicarious liability under Section 149 IPC.
40. Accordingly, the Trial Court convicted those
accused persons against whom:
(i) There was identification by witnesses; and/or
(ii) Their presence and participation in the unlawful
assembly was established; and/or
(iii) Their involvement was supported by
corroborative evidence.
41. At the same time, the Trial Court acquitted
certain accused persons where:
(i) Identification was found doubtful; or
(ii) Evidence was insufficient to establish
participation; or
(iii) There was lack of corroboration.
42. Thus, the approach of the Trial Court indicates
that while the occurrence and the formation of unlawful
assembly were accepted as proved, the conviction of
individual accused persons was based primarily on
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identification and attribution of participation, rather than
specific individual acts in every case.
Appreciation of Evidence
43. In order to appreciate the evidence in its proper
perspective, the Court proposes to examine it category-wise.
The analysis will first deal with the medical evidence,
followed by the dying declaration, the direct testimony of the
survivor eyewitnesses, the corroborative and peripheral
witnesses, the test identification parade evidence, the
informant’s testimony and the question of prior enmity, and
finally the official and technical evidence, before applying the
relevant legal provisions and drawing conclusions.
44. Medical Evidence (PW-1 Dr. Jagdeo Pd. Sinha
and PW-2 Dr. Rajendra Kumar Singh): – The post-mortem
reports (Ex. 1/7 to 1/10) and injury reports (Ex. 2 and 2/1)
establish that the deaths were homicidal and caused by sharp
cutting/penetrating weapons such as spears, swords, and
gadasas, along with hard blunt objects (lathi/stone). Dr.
Jagdeo Pd. Sinha (PW-1) found incised and penetrating
wounds on the head, face, neck (carotid artery severance),
abdomen (intestine/spleen punctured), and chest on the bodies
of Nasima Begam, Meharunisa, Ishrat Begum, and Md.
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Rizwan. Dr. Rajendra Kumar Singh (PW-2) similarly noted
incised wounds on Shahnaz Bano, an unnamed wife of Md.
Yunus, and the six-day-old infant of Ishrat Begum, with
fractures, brain damage, and haemorrhage. Both doctors
consistently opined that rigor mortis was present in the lower
limbs and that death had occurred within about 24 hours,
aligning precisely with the timing of the incident on
01.05.1981. The cause of death in each case was attributed to
shock and hemorrhage from injuries that were sufficient in the
ordinary course of nature to cause death.
45. This medical testimony provides powerful
corroboration for the survivor accounts of cut injuries inflicted
while women and children were dragged and assaulted in
Ulfat Miyan’s verandah and courtyard. The pattern of incised
and penetrating wounds matches the repeated descriptions by
multiple eyewitnesses of the use of spears, swords, and
gadasas during the attack. In Darbara Singh v. State of
Punjab, reported in (2012) 10 SCC 476, the Hon’ble Supreme
Court emphasised that medical evidence is corroborative in
nature. However, in a situation where the inconsistency
between ocular and medical evidence is so extreme that the
medical witness totally rules out the possibility of the ocular
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evidence being true, the court must carefully examine the
conflict before relying on the oral testimony. The relevant para
number 10 of the said judgment is reproduced below:
“10. So far as the question of
inconsistency between the medical
evidence and the ocular evidence is
concerned, the law is well settled that,
unless the oral evidence available is
totally irreconcilable with the medical
evidence, the oral evidence would have
primacy. In the event of contradictions
between medical and ocular evidence, the
ocular testimony of a witness will have
greater evidentiary value vis-à-vis
medical evidence and when medical
evidence makes the oral testimony
improbable, the same becomes a relevant
factor in the process of evaluation of such
evidence. It is only when the
contradiction between the two is so
extreme that the medical evidence
completely rules out all possibilities of
the ocular evidence being true at all, that
the ocular evidence is liable to be
disbelieved. (Vide State of U.P. v. Hari
Chand [(2009) 13 SCC 542 : (2010) 1
SCC (Cri) 1112] and Bhajan
Singh v. State of Haryana [(2011) 7 SCC
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
19/142421 : (2011) 3 SCC (Cri) 241])”
46. Here, there is no conflict. The medical evidence
strongly supports the oral testimony rather than contradicts it.
The absence of gunshot wounds, however, weakens claims of
firearm use by certain accused, such as Raj Kishore Sao, and
underscores the need for caution in accepting every detail of
the survivor narratives.
47. Dying Declaration of Ishrat Begum (PW-29
Hardev Prasad, JM) : – Ishrat Begum (daughter of the
informant) was an injured eyewitness flagged in the fardbeyan
as the person who would name the accused upon regaining
consciousness. PW-29 Hardev Prasad, the Judicial Magistrate,
recorded her dying declaration on 02.05.1981 at 11:00 a.m. in
Sadar Hospital. He certified that her mental condition was
normal, she was fit to make the statement, no one else was
present, and the statement was read over to her before she
affixed her thumb impression.
48. A dying declaration is substantive evidence and
can form the sole basis of conviction if it inspires confidence,
is voluntary, truthful, and made in a fit mental condition with
expectation of death, as laid down in Khushal Rao v. State of
Bombay, reported in AIR 1958 SC 22. Relevant para number
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16 of the said judgment is reproduced below:
“16. On a review of the
relevant provisions of the Evidence Act
and of the decided cases in the different
High Courts in India and in this Court,
we have come to the conclusion, in
agreement with the opinion of the Full
Bench of the Madras High Court,
aforesaid, (1) that it cannot be laid down
as an absolute rule of law that a dying
declaration cannot form the sole basis of
conviction unless it is corroborated; (2)
that each case must be determined on its
own facts keeping in view the
circumstances in which the dying
declaration was made ; (3) that it cannot
be laid down as a general proposition
that a dying declaration is a weaker kind
of evidence than other pieces of evidence;
(4) that a dying declaration stands on the
same footing as another piece of evidence
and has to be judged in the light of
surrounding circumstances and with
reference to the principles governing the
weighing of evidence; (5) that a dying
declaration which has been recorded by a
competent magistrate in the proper
manner, that is to say, in the form of
questions -and answers, and, as far as
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the declaration, stands on a much higher
footing than a dying declaration which
depends upon oral testimony which may
suffer from all the infirmities of human,
memory and human character, and (6)
that in order to test the reliability of a
dying declaration, the Court has to keep
in view the. circumstances like the
opportunity of the dying man for
observation, for example, whether there
was sufficient light if the crime was
committed at night; whether the capacity
of the man to remember the facts stated
had not been impaired at the time he was
making the statement, by circumstances
beyond his control; that the state- ment
has been consistent throughout if he had
several opportunities of making a dying
declaration apart from the official record
of it-; and that the statement had been
made at the earliest opportunity and was
not the result of tutoring by interested
parties.”
49. In Laxman v. State of Maharashtra, reported in
(2002) 6 SCC 710, the Hon’ble Supreme Court reiterated that
the court must satisfy itself that the declarant was in a fit state
of mind and that there was no tutoring or prompting. The
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relevant para number 3 of the said judgment is reproduced
below:
“3. The juristic theory
regarding acceptability of a dying
declaration is that such declaration is
made in extremity, when the party is at
the point of death and when every hope of
this world is gone, when every motive to
falsehood is silenced, and the man is
induced by the most powerful
consideration to speak only the truth.
Notwithstanding the same, great caution
must be exercised in considering the
weight to be given to this species of
evidence on account of the existence of
many circumstances which may affect
their truth. The situation in which a man
is on the deathbed is so solemn and
serene, is the reason in law to accept the
veracity of his statement. It is for this
reason the requirements of oath and
cross-examination are dispensed with.
Since the accused has no power of cross-
examination, the courts insist that the
dying declaration should be of such a
nature as to inspire full confidence of the
court in its truthfulness and correctness.
The court, however, has always to be on
guard to see that the statement of the
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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tutoring or prompting or a product of
imagination. The court also must further
decide that the deceased was in a fit state
of mind and had the opportunity to
observe and identify the assailant.
Normally, therefore, the court in order to
satisfy whether the deceased was in a fit
mental condition to make the dying
declaration looks up to the medical
opinion. But where the eyewitnesses state
that the deceased was in a fit and
conscious state to make the declaration,
the medical opinion will not prevail, nor
can it be said that since there is no
certification of the doctor as to the fitness
of the mind of the declarant, the dying
declaration is not acceptable. A dying
declaration can be oral or in writing and
any adequate method of communication
whether by words or by signs or
otherwise will suffice provided the
indication is positive and definite. In most
cases, however, such statements are made
orally before death ensues and is reduced
to writing by someone like a Magistrate
or a doctor or a police officer. When it is
recorded, no oath is necessary nor is the
presence of a Magistrate absolutely
necessary, although to assure authenticity
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
24/142it is usual to call a Magistrate, if
available for recording the statement of a
man about to die. There is no requirement
of law that a dying declaration must
necessarily be made to a Magistrate and
when such statement is recorded by a
Magistrate there is no specified statutory
form for such recording. Consequently,
what evidential value or weight has to be
attached to such statement necessarily
depends on the facts and circumstances of
each particular case. What is essentially
required is that the person who records a
dying declaration must be satisfied that
the deceased was in a fit state of mind.
Where it is proved by the testimony of the
Magistrate that the declarant was fit to
make the statement even without
examination by the doctor the declaration
can be acted upon provided the court
ultimately holds the same to be voluntary
and truthful. A certification by the doctor
is essentially a rule of caution and
therefore the voluntary and truthful
nature of the declaration can be
established otherwise.”
50. Yet this dying declaration presents material
difficulties. It does not mention Raj Kishore Sao, a figure
repeatedly named by almost every survivor as the man with a
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
25/142
gun giving orders to kill. It also omits Ishwari Singh, named
in several TIPs and by some survivors. PW-7 Shahabuddin
and PW-8 Murtuza claimed Ishrat named a long list including
Raj Kishore and Ishwari Singh before the Magistrate, but PW-
29 explicitly states that no one else was present and the names
are absent. These contradictions reduce the probative force of
the declaration.
51. The Hon’ble Supreme Court in Khushal Rao
(Supra) held that a dying declaration recorded by a competent
magistrate in the proper manner (question-and-answer form,
in the words of the declarant) stands on a much higher footing
than an oral dying declaration (principle (v)). However, even a
Magistrate-recorded dying declaration is not immune from
close scrutiny.
52. Where such a declaration contains glaring
omissions of named accused who are prominently featured in
other evidence, such as FIR, eye-witness testimony, medical
evidence, recoveries, etc., then the declaration becomes
suspicious qua those accused. In such circumstances, the
Court is required to approach it with heightened caution and
cannot place implicit reliance upon it without independent
corroboration. Reliance on this point may be placed by the
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
26/142
Hon’ble Supreme Court’s decision in Suresh v. State of T.N.,
reported in (2025) 4 SCC 794. The relevant para number 20 of
the said judgment is reproduced below:
“20. As discussed above, in
cases where the dying declaration is
suspicious, it is not safe to convict an
accused in the absence of corroborative
evidence. In a case like the present one,
where the deceased has been changing
her stance and has completely turned
around her statements, such a dying
declaration cannot become the sole basis
for the conviction in the absence of any
other corroborative evidence.”
53. It is equally settled that the Court must look for
corroboration in each accused before acting upon a dying
declaration; in the absence of such corroboration, conviction
cannot be sustained on the dying declaration alone. This
principle flows from Harbans Singh v. State of Punjab,
reported in 1961 SCC OnLine SC 40. The relevant para
number 16 of the said judgment is reproduced below:
“16. The learned Judge has
also misdirected himself in thinking that
the dying declaration had very little
probative value because as many as six
accused persons had been named and
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
27/142that no conviction could in law be based
on such dying declaration without
corroboration. The law does not make
any distinction between a dying
declaration in which one person is named
and a dying declaration in which several
persons are named as culprits. A dying
declaration implicating one person may
well be false while a dying declaration
implicating several persons may be true.
Just as when a number of persons are
mentioned as culprits by a person
claiming to be an eye-witness in his
evidence in court the court has to take
care in deciding whether he has lied or
made a mistake about any of them, so
also when a number of persons appear to
have been mentioned as culprits in a
dying declaration that court has to
scrutinise the evidence in respect of each
of the accused. But it is wrong to think
that a dying declaration becomes less
credible if a number of persons are
named as culprits. The contrary view
taken in the Lahore High Court in
Khurshaid Hussain v. Emperor (43
Criminal LJ (1942) 59) on which
apparently the Trial Judge has relied is
clearly erroneous.”
54. Here, the omissions, combined with Ishrat’s
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
28/142
severe head injuries (fractured parietal bone, brain matter
incised and ecchymosed, as noted in PW-1), raise legitimate
questions about her fitness despite the Magistrate’s
certification. While the declaration remains admissible, its
weight is limited, and it cannot be the sole basis for convicting
those not named in it, particularly when prior enmity is
established.
55. Survivor Eyewitnesses (Direct Evidence of
the Attack) : – The core of the prosecution case rests on the
direct evidence of the survivors who hid in Md. Miyan’s and
Ulfat Miyan’s houses during the attack. PW-6 Aftaab Alam,
PW-10 Yunus, PW-13 Jamila Khatoon, PW-15 Samima
Khatoon, PW-16 Salauddin, PW-17 Sarifan, PW-18 Jarina,
PW-21 Md. Samim, and PW-22 Anwari give a consistent
account of the mob surrounding the houses, setting Md.
Miyan’s house on fire, the group cutting a hole in the wall to
move to Ulfat Miyan’s house, the mob breaking the door,
dragging women and children out to the verandah, beating
them, snatching jewellery, and inflicting cut injuries. Specific
roles are attributed repeatedly to Raj Kishore Sao (carrying
gun and orders to kill), Panna Lal (carrying spear and orders),
Gilu Pandey (carrying sword and dragging women), Umesh
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
29/142
Thathera (dragging and killing), Sadhu Singh (carrying spear
and killing while snatching belongings), Chhote Kumhar
(carrying sword and attack on the six-day-old child), and
Sunil (carrying spear, killings, and abduction of Murshida).
This multi-witness consistency on the sequence and the core
accused is compelling.
56. In Muthu Naicker v. State of T.N., reported in
(1978) 4 SCC 385, the Hon’ble Supreme Court held that in
cases of rioting by a large unlawful assembly or mob violence,
the evidence of identification and participation must be
scrutinised with care and cannot be accepted mechanically.
The relevant para number 6 of the said judgment is
reproduced below:
“6. Where there is a melee and
a large number of assailants and number
of witnesses claim to have witnessed the
occurrence from different places and at
different stages of the occurrence and
where the evidence as in this case is
undoubtedly partisan evidence, the
distinct possibility of innocent being
falsely included with guilty cannot be
easily ruled out. In a faction-ridden
society where an occurrence takes place
involving rival factions it is but
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
30/142inevitable that the evidence would be of a
partisan nature. In such a situation to
reject the entire evidence on the sole
ground that it is partisan is to shut one’s
eyes to the realities of the rural life in
our country. Large number of accused
would go unpunished if such an easy
course is charted. Simultaneously, it is to
be borne in mind that in a situation as it
unfolds in the case before us, the easy
tendency to involve as many persons of
the opposite faction as possible by merely
naming them as having been seen in the
melee is a tendency which is more often
discernible and is to be eschewed and,
therefore, the evidence has to be
examined with utmost care and caution.
It is in such a situation that this Court
in Masalti v. State of U.P. [AIR 1965 SC
202 : (1964) 8 SCR 133 : (1965) 1 Cri LJ
226] adopted the course of adopting a
workable test for being assured about the
role attributed to every accused. To some
extent it is inevitable that we should
adopt that course.”
57. Further, in Baladin v. State of U.P., reported in
(1955) 2 SCC 260, the Hon’ble Supreme Court in paragraph
24 has observed as under:
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
31/142“24. It is manifest that the first
three grounds do not make out a case for
special leave but we think that the fourth
ground does. It is well settled that mere
presence in an assembly does not make
such a person a member of an unlawful
assembly unless it is shown that he had
done something or omitted to do
something which would make him a
member of an unlawful assembly, or
unless the case falls under Section 142 of
the Penal Code. In this case there is no
doubt that the original inhabitants of the
village were all inimically disposed
towards the newcomers. From the site
plan (Ext. P-18) of the houses of the
refugees, it is clear that the houses of the
accused persons and of the refugees are
situate close to one another. The house of
Mangal Singh which was the scene of the
occurrence was surrounded by the houses
of the original inhabitants of the village
including some of the accused persons.
According to the prosecution case, one
party of the members of the unlawful
assembly entered the first floor of the
house of Mangal Singh through the roof of
the house of Parichhat Lodhi adjacent to
the south-east and attacked the three
persons who were there. The other party
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
32/142
of the miscreants collected at the front
door of Mangal Singh’s house facing west.
In front of Mangal Singh’s house is the
house of Mahabir, appellant, and on the
other three sides of that house are the
houses of Baladin Lodhi, Parichhat Lodhi
and Ajodhia Lodhi, appellants. It would
thus appear that the place of occurrence is
surrounded on all sides by the houses of
the appellants. If members of the family of
the appellants and other residents of the
village assembled, all such persons could
not be condemned ipso facto as being
members of that unlawful assembly. It was
necessary therefore for the prosecution to
lead evidence pointing to the conclusion
that all the appellants before us had done
or been committing some overt act in
prosecution of the common object of the
unlawful assembly. The evidence as
recorded is in general terms to the effect
that all these persons and many more
were the miscreants and were armed with
deadly weapons, like guns, spears,
pharsas, axes, lathis, etc. This kind of
omnibus evidence naturally has to be very
closely scrutinised in order to eliminate
all chances of false or mistaken
implication. That feelings were running
high on both sides is beyond question.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
33/142
That the six male members who were done
to death that morning found themselves
trapped in the house of Mangal Singh has
been found by the courts below on good
evidence. We have therefore to examine
the case of each individual accused to
satisfy ourselves that mere spectators who
had not joined the assembly and who were
unaware of its motive had not been
branded as members of the unlawful
assembly which committed the dastardly
crimes that morning. It has been found
that the common object of the unlawful
assembly was not only to kill the male
members of the refugee families but also
to destroy all evidence of those crimes.
Thus even those who did something in
connection with the carrying of the dead
bodies or disposal of them by burning
them as aforesaid must be taken to have
been actuated by the common objective.”
58. In cases of rioting by a large unlawful assembly,
the evidence must be scrutinised with care, and mere presence
in the mob is not enough; there must be evidence of
participation or sharing the common object. The Hon’ble
Supreme Court, keeping in acknowledging the need for
appreciating evidence in such cases devised the Masalti rule in
Masalti v. State of U.P., reported in 1964 SCC OnLine SC 30.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
34/142
The relevant para number 16 of the judgment where the Court
pronounced the said rule is as follows:
“16. Mr. Sawhney also urged
that the test applied by the High Court in
convicting the appellants is mechanical.
He argues that under the Indian Evidence
Act, trustworthy evidence given by a
single witness would be enough to convict
an accused person, whereas evidence
given by half a dozen witnesses which is
not trustworthy would not be enough to
sustain the conviction. That, no doubt is
true; but where a criminal court has to
deal with evidence pertaining to the
commission of an offence involving a
large number of offenders and a large
number of victims, it is usual to adopt the
test that the conviction could be sustained
only if it is supported by two or three or
more witnesses who give a consistent
account of the incident. In a sense, the
test may be described as mechanical; but
it is difficult to see how it can be treated
as irrational or unreasonable. Therefore,
we do not think that any grievance can be
made by the appellants against the
adoption of this test. If at all the
prosecution may be entitled to say that
the seven accused persons were acquitted
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
35/142because their cases did not satisfy the
mechanical test of four witnesses, and if
the said test had not been applied, they
might as well have been convicted. It is,
no doubt, the quality of the evidence that
matters and not the number of witnesses
who give such evidence. But, sometimes it
is useful to adopt a test like the one which
the High Court has adopted in dealing
with the present case.”
59. The survivor testimony satisfies this test for the
core group, particularly when corroborated by the medical
findings of cut injuries and the IO’s seizures of burnt material
and blood-stained items from the house cluster.
60. Corroborative and Peripheral Witness Testimony
(PW-3, PW-4, PW-5, PW-9, PW-11, PW-12, PW-23, PW-27,
PW-28, PW-30): – Several other prosecution witnesses lend
important support to the factum of the occurrence, the scale of
violence, and the surrounding circumstances, even though
they do not provide direct identification of the accused or
specific overt acts. PW-3 Md. Hanif heard the slogans
“surround the Muslims and do not let them go” and “kill the
Muslims” just before noon on 01.05.1981, saw smoke rising
from Alinagar, and along with others went to the Dargah
Outpost to report the fire; the police response was delayed,
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
36/142
and he later saw injured persons and children being brought to
the Outpost. PW-4 Md. Salim Uddin gave a vivid eyewitness
account of a mob of 400-500 persons approaching his house,
identified several leading accused (Rajkishor Sao with gun,
Panna Lal with spear, Rameshwar Sav Patwa with sword,
Chhote Kumhar with sword, Billu Pandey with pistol and
sword, Laxman Patwa with axe, Ramnath Patwa with sword,
Vishwanath Patwa with saif), saw his mother being dragged
away, and remained hidden on the toilet roof while the house
was looted and set on fire. PW-5 Md. Alam, though an injured
person, gave virtually no substantive evidence in examination-
in-chief and was virtually tendered. PW-9 Azimuddin and his
family took shelter in Jatti Singh’s house; the mob pushed the
door and beat Jatti Singh, but no accused were named by this
witness. PW-11 Md. Halim took shelter in Salim Miyan’s
house, saw a huge armed mob, and came out only at 4:00 a.m.
the next morning when the houses of seven-eight Muslims had
been set on fire. PW-12 Akhtar Hussain was tendered and
merely stated that his police statement was recorded one
month after the occurrence; he had been working in a bidi
godown in Jhingnagar. PW-23 Brij Nandan Kumar (BDO)
spoke about the prior graveyard dispute in Mirganj field
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
37/142
involving Sahabuddin, Salimuddin, and Hasim. PW-27 Mohan
Lal Singh deposed on the tense situation in Bihar Sharif from
30.04.1981, the imposition of curfew, and the arson in Gagan
Diwan locality the previous evening. PW-28 Syed Abdul Gani
(Constable at Dargah Outpost) described receiving three
successive reports of fire and killings, the initial refusal to
proceed without a Magistrate, the eventual armed police party
reaching Alinagar around 02:30-03:00 p.m., seeing the burnt
houses, dead bodies, and injured persons, and bringing
survivors and injured to the Outpost. PW-30 Tamannah
Ahmed formally proved the handwriting and signatures of Dr.
V. Prasad and Dr. Arun Kumar Sinha on four post-mortem
reports (Ex. 1/7 to 1/10).
61. Collectively, these witnesses establish the
occurrence, the delayed police response, the prior communal
tension, and the scale of the violence without contradiction.
Their evidence forms a strong corroborative chain that
buttresses the direct survivor testimony and medical findings,
lending credibility to the prosecution version of a large-scale
communal attack.
62. The hon’ble Supreme Court has consistently
held that witnesses who support the factum of occurrence and
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
38/142
the surrounding circumstances furnish valuable corroboration
that adds substantial weight to the prosecution case, even if
they do not identify the accused. In Masalti (Supra), the Court
emphasised that in cases involving a large number of
offenders, the prosecution derives strength from a consistent
account of the incident given by multiple witnesses.
Testimony proving the genesis, manner, and surrounding
circumstances of the crime constitutes material corroboration,
irrespective of whether every witness identifies each accused.
63. It is equally well settled that the failure of a
witness to identify the accused does not render his evidence
worthless on the question of the factum of occurrence. Such
testimony retains its full corroborative value and adds
substantial weight to the prosecution case when read with the
identifying witnesses or other material on record. Reliance on
this point may be placed by referring the hon’ble Supreme
Court’s judgment in Ramesh Harijan v. State of U.P.,
reported in (2012) 5 SCC 777, where the witness had turned
hostile on naming/identifying certain accused but the Court
relied on his testimony regarding the factum of the occurrence
and convicted the appellants on the basis of the credible
portion. The relevant paragraph number 23 of the said
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
39/142
judgment is reproduced below:
“23. It is a settled legal proposition that
the evidence of a prosecution 9 witness
cannot be rejected in toto merely because
the prosecution chose to treat him as
hostile and cross-examine him.
“6….The evidence of such
witnesses cannot be treated as effaced or
washed off the record altogether but the
same can be accepted to the extent that
their version is found to be dependable
on a careful scrutiny thereof.”
[Vide Bhagwan Singh v. State
of Haryana: Rabindra Kumar Dey v.
State of Orissa: Syad Akbar v. State of
Karnataka and Khujji v. State of M.P.”
(SCC p. 635. para 6).
64. Thus, where independent or semi-independent
witnesses consistently depose to the occurrence and its
surrounding circumstances, their evidence provides strong
corroboration and cannot be brushed aside merely because
they did not identify the accused persons.
65. TIP Evidence (PW-25 Ibrar Hasan, SDJM) : –
PW-25 conducted multiple TIPs on 28.05.1981, 09.06.1981,
10.06.1981, and 11.06.1981. Several witnesses (Jamila,
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
40/142Anwari, Salauddin, Shamim, Sharifan, Shamima) identified
accused such as Ishwari Singh, Ajay Singh, Kisto Patwa,
Laxman Ram Patwa, Naresh Das, Moti Dusad, Om Prakash,
and Kamal Kishore, with roles stated during the parades
(armed with spear or saif, setting fire, dragging and killing).
However, the TIP evidence suffers from procedural
infirmities. Many suspects in several parades came from the
same village (Ganjpar), creating a risk of unfair mixing.
Queues were large, sometimes exceeding 280 persons, making
fair identification difficult. Bail accused were produced by
their lawyers, raising the possibility of prior exposure. No
identification marks were noted on the suspects. In Dana
Yadav v. State of Bihar, reported in (2002) 7 SCC 295, the
hon’ble Supreme Court held that the purpose of a Test
Identification Parade is to test the memory of the witnesses
based upon the first impression so as to verify the accused
from among other persons without any aid or external
influence. The relevant paragraph number 6 of the judgment is
reproduced below:
“6. It is also well settled that
failure to hold test identification parade,
which should be held with reasonable
dispatch, does not make the evidence of
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
41/142identification in court inadmissible,
rather the same is very much admissible
in law. Question is, what is its probative
value? Ordinarily, identification of an
accused for the first time in court by a
witness should not be relied upon, the
same being from its very nature,
inherently of a weak character, unless it is
corroborated by his previous
identification in the test identification
parade or any other evidence. The
purpose of test identification parade is to
test the observation, grasp, memory,
capacity to recapitulate what a witness
has seen earlier, strength or
trustworthiness of the evidence of
identification of an accused and to
ascertain if it can be used as reliable
corroborative evidence of the witness
identifying the accused at his trial in
court. If a witness identifies the accused
in court for the first time, the probative
value of such uncorroborated evidence
becomes minimal so much so that it
becomes, as a rule of prudence and not
law, unsafe to rely on such a piece of
evidence. We are fortified in our view by a
catena of decisions of this Court in the
cases of Kanta Prashad v. Delhi Admn.
[AIR 1958 SC 350 : 1958 Cri LJ 698] ,
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
42/142Vaikuntam Chandrappa [AIR 1960 SC
1340 : 1960 Cri LJ 1681] , Budhsen
[(1970) 2 SCC 128 : 1970 SCC (Cri)
343] , Kanan v. State of Kerala [(1979) 3
SCC 319 : 1979 SCC (Cri) 621] ,
Mohanlal Gangaram Gehani v. State of
Maharashtra [(1982) 1 SCC 700 : 1982
SCC (Cri) 334] , Bollavaram Pedda
Narsi Reddy [(1991) 3 SCC 434 : 1991
SCC (Cri) 586] , State of Maharashtra v.
Sukhdev Singh [(1992) 3 SCC 700 : 1992
SCC (Cri) 705] , Jaspal Singh v. State of
Punjab [(1997) 1 SCC 510 : 1997 SCC
(Cri) 358] , Raju v. State of Maharashtra
[(1998) 1 SCC 169 : 1998 SCC (Cri)
296] , Ronny [(1998) 3 SCC 625 : 1998
SCC (Cri) 859] , George v. State of
Kerala [(1998) 4 SCC 605 : 1998 SCC
(Cri) 1232] , Rajesh Govind Jagesha
[(1999) 8 SCC 428 : 1999 SCC (Cri)
1452] , State of H.P. v. Lekh Raj [(2000) 1
SCC 247 : 2000 SCC (Cri) 147] and
Ramanbhai Naranbhai Patel v. State of
Gujarat [(2000) 1 SCC 358 : 2000 SCC
(Cri) 113].”
66. However, the evidentiary value of a TIP is
minimal if the witnesses knew the accused earlier or if the
parade is not conducted fairly. In Raj Kumar v. State (NCT of
Delhi), reported in 2025 SCC OnLine SC 2465, the Hon’ble
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
43/142
Supreme Court expounded the same principle, holding, if
witness had opportunity to see accused before TIP, then test
identification proceedings are not reliable. The relevant para
number 62 of the said judgment is reproduced below:
“62. It is trite that where the
witnesses have had an opportunity to see
the accused prior to the holding of the
TIP, the evidentiary worth of such
proceedings stands considerably
diminished. It is the duty of the
prosecution to establish beyond doubt that
right from the time of arrest, the accused
was kept baparda to rule out the
possibility of his face being seen before
the identification proceedings are
conducted. If the witnesses have had any
opportunity to see the accused before the
TIP – whether physically or through
photographs – the credibility and sanctity
of the identification proceedings would
stand seriously compromised.”
67. The TIPs therefore provide only limited
corroboration and cannot cure the identification weaknesses
where the court testimony already suffers from prior
acquaintance or delay.
68. Informant’s Evidence and Prior Enmity (PW-
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
44/142
14 Md. Hasim): – The informant, Md. Hasim (PW-14), was
absent during the attack. His fard beyan is hearsay for the core
facts of the violence. In court, he claimed the injured were
found in Ulfat Miyan’s house (not his own house as stated in
the fardbeyan) and that names came from Younis Miyan and
others at the Dargah Outpost. He also admitted prior enmity
with Raj Kishore Sao and Panna Lal over the graveyard
dispute and the RSS shakha. These contradictions damage the
foundational document. In Rammi v. State of M.P., reported
in (1999) 8 SCC 649, the hon’ble Supreme Court held that,
while normal discrepancies do not corrode the credibility of a
party’s case, material discrepancies do so. The omissions
which amount to contradictions in material particulars render
the testimony of the witness liable to be discredited. The
relevant Paragraph Nos. 26 and 27 of the said judgment are
reproduced below:
“26. A former statement though
seemingly inconsistent with the evidence
need not necessarily be sufficient to
amount to contradiction. Only such of the
inconsistent statement which is liable to
be “contradicted” would affect the credit
of the witness. Section 145 of the
Evidence Act also enables the cross-
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
45/142examiner to use any former statement of
the witness, but it cautions that if it is
intended to “contradict” the witness the
cross-examiner is enjoined to comply with
the formality prescribed therein. Section
162 of the Code also permits the cross-
examiner to use the previous statement of
the witness (recorded under Section 161
of the Code) for the only limited purpose
i.e. to “contradict” the witness.
27. To contradict a witness,
therefore, must be to discredit the
particular version of the witness. Unless
the former statement has the potency to
discredit the present statement, even if the
latter is at variance with the former to
some extent it would not be helpful to
contradict that witness (vide Tahsildar
Singh v. State of U.P. [AIR 1959 SC
1012 : 1959 Cri LJ 1231] ).”
69. The informant’s evidence therefore carries
limited weight on the identity of the accused, though it
supports the occurrence and the initial police response.
70. Prior enmity, a factor that can discredit
identification evidence, is established through the graveyard
dispute and RSS shakha. The Hon’ble Supreme Court in
Piara Singh v. State of Punjab, reported in (1977) 4 SCC
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
46/142
452, held that where enmity is proved between the parties, the
evidence of interested or inimical witnesses must be
scrutinised with greater care and circumspection. The relevant
para number 4 of the said judgment is reproduced below:
“4. The central evidence against
the appellant consisted of the three
eyewitnesses, namely, PW 3 Harbhajan
Singh, PW 5 Chanan Kaur and PW 6
Kesar Kaur. It is true that the three
witnesses were relations of the deceased
and bore animus against the accused but
as the occurrence had taken place near
the door of the house of the deceased
these persons were the natural witnesses
and were in fact sitting in the court-yard
when the occurrence took place. It may be
difficult to get witnesses from the village
when an assault of the type suddenly takes
place in the house of the deceased. It is
well settled that the evidence of interested
or inimical witnesses is to be scrutinised
with care but cannot be rejected merely on
the ground of being a partisan evidence. If
on a perusal of the evidence the court is
satisfied that the evidence is credit-worthy
there is no bar in the Court relying on the
said evidence. The High Court was fully
alive to these principles and has in fact
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
47/142found that the evidence of these three
witnesses has a ring of truth. After having
perused the evidence ourselves also we
fully agree with the view taken by the
High Court. In fact, the learned Sessions
Judge has not made any attempt to dwell
into the intrinsic merits of the evidence of
these witnesses but has rejected them
mainly on general grounds most of which
are either unsupportable in law or based
on speculation. The evidence of the
eyewitnesses is sought to be corroborated
by the evidence of PW 7 Kundan Singh to
whom the whole occurrence was narrated
immediately after the accused left the
house. There is also the evidence of Balbir
Singh, PW 17, who is a Sarpanch of the
village and an independent witness and
who proves that the appellant Piara Singh
had made an extra judicial confession
before him in which he admitted to have
committed the murder of the deceased
Surjit Singh along with his companions
Kashmir Singh, Gian Singh and Joginder
Singh. This witness also proves that
Kashmir Singh on being narrated by the
details made a disclosure which resulted
in the recovery of the Kirpan from the
sugarcane field of Meja Singh for which a
search list was prepared and the Kirpan
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According to the Investigating Officer an
empty cartridge was also found at the spot
and he sent the same to the Ballistic
Expert along with the rifle recovered from
Piara Singh who was a constable in the
Border Security Force and the Ballistic
Expert found that the empty could have
been shot from the rifle in question. These
circumstances fully corroborate the
evidence of the eyewitnesses. Finally,
there is the medical evidence of Dr
Jatinder Singh who performed the post-
mortem examination on the deceased and
he found as many as 7 incised wounds on
the various parts of the body of the
deceased and 7 incised punctured wounds
on some vital parts of the body. Apart
from these injuries the deceased had also
sustained a gun shot injury with a wound
of entry and exit on the left buttock, which
according to Dr Jatinder Singh could be
caused by a firearm including a rifle. The
Doctor further deposed that the
contusions and abrasions were caused by
a blunt weapon and the other incised
wounds were caused by a sharp cutting
instrument like the Gandasa. Another
Doctor was examined by the Sessions
Judge as Court Witness 1 who on seeing
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Singh was of the view that Injury 11 could
not have been caused by a rifle and much
capital was made by the accused out of
the evidence given by Dr Paramjit Singh.”
71. It is equally well settled that enmity is a double-
edged weapon. While it may provide a motive for the offence,
it also raises a serious possibility of false implication of
innocent persons. In such cases, the Court is duty-bound to
examine the evidence with heightened scrutiny so as to ensure
that no innocent person is roped in on account of previous
enmity. The graveyard incident, involving Raj Kishore Sao
and Panna Lal on one side and the informant and Muslim
witnesses on the other, provides a clear motive for selective
implication, particularly of prominent local figures.
72. Official and Technical Evidence: – The official
and technical evidence further strengthens the occurrence.
PW-19 Vinay Kumar Sinha and PW-20 Kameshwar Prasad
Singh confirm the afternoon police response, the recovery of
nine dead bodies and seven injured, and the presence of at
least two burnt houses. PW-26 Rajendra Prasad, the
Magistrate, proves seizures of burnt wood, ashes, blood-
soaked soil, and blood-soaked cloth from the house cluster.
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PW-24 Avindra Ranjan, the CID photographer, proves
photographs of burnt thatched roofs and walls. PW-31
Pannalal Mehra, the Investigating Officer, details the scene
visit, seizures, line diagrams, and statements recorded from
key survivors. These witnesses corroborate the scale of arson
and violence but do not identify any accused.
Evidence on behalf of the prosecution in Trial
Court
73. It is already mentioned that during trial,
prosecution examined as many as 31 witnesses. The nature of
witnesses may be classified in the following categories:-
(a) eyewitnesses;
(b) witnesses, who described the incident but did
not see the incident of arson, looting and murder;
(c) medical evidence and;
(d) Investigating Officer.
74. It is pertinent to mention here that the
investigation of the case was conducted by the CID, but the
Investigating Officer (PW-31) did not face the cross
examination by the defense. Therefore, evidence of the
Investigating Officer without cross-examination cannot be
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considered. Amongst the eyewitnesses, PW-4, Md.
Salimuddin was examined on 25.04.1985. It is found from his
evidence that on 01.05.1981 (Friday), he was in his house
with his family members. At about 12:00 Noon, he noticed
that a gathering was being formed in their locality and they
were declaring that the Mohammedan inhabitants of the
locality would not be allowed to go anywhere. Hearing this,
PW-4 apprehended that the mob might eliminate the
Mohammedans. Then he instructed his four sons and three
daughters to leave the house and take shelter in the “Dargah”.
PW-4, his wife Sayeda Khatoon and old mother were in the
house. Gradually, he saw that the number of people in the mob
had increased. There were about 400-500 people. Seeing the
agitated mob, he and his wife took shelter in the house of one
Jatti Singh to save their lives. Since, the mother of PW-4
could not walk, she was left behind the house. The mob
attacked the house of PW-4. He then climbed up to the roof of
his toilet and laid down to conceal himself on the roof. He saw
that about 40-50 people entered into his house, looted the
household articles and set the house ablaze. He identified Raj
Kishore Sao with a gun in his hand, Panna Lal with a Bhala,
Rameshwar Sao Katwa with sword, Surendra Sharma @
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Sheetal Sharma with Lathi, Chhote Kumhar with sword,
Bindu Pandey with a pistol and a sword. The son of one
Panditayan with sword, Lakhan Kotwa with Garasa, Ram
Nath Kotwa with sword and Vishwanath Kotwa with a
weapon (lSaQ). He also stated on oath that Rameshwar Kotwa
dragged his mother out of the house, catching hold of her
hand and till date he did not find his mother. After ransacking
the house of PW-4, the mob proceeded towards the house of
other Mohammedan inhabitants of the village. He heard
screams of cry of the local inmates and sounds of explosion of
bomb. The tension continued for about three days. Thereafter,
police came to the village and the said mob disbursed. The
witness spent one night on the roof of the toilet out of fear. On
the next day of occurrence, he went to the Dargah. He found
many other people in Dargah except his mother. On the third
day of incident, he returned his house. He did not find any
household articles there. On the fourth day, he and his wife
left the village for Kunasarai and stayed there for one month.
The witness identified six accused persons, who were named
by him. He also stated that he would be able to identify the
remaining accused persons.
75. During cross-examination, the learned Defense-
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Counsel took elaborate topography of the house of the
witness. During cross-examination, the witness reiterated that
he saw entire incident lying on the roof of his toilet made of
“Khapra” (mud tiles). It was also taken during cross-
examination that none of the mob tried to climb bath to the
roof of the toilet of the witness. None of them threw pieces of
bricks on the roof. Thus, it is clear that PW-4 saw the incident
without any interruption or hindrance by anybody.
76. It is also found from the cross-examination of
PW-4 that he stayed in Dargah for about four days and during
the said period, these victims did not get any government help
or police help. In cross examination, he also stated that one of
the accused Raj Kishore Sao is a Ward Commissioner and at
the relevant point of time he was Vice President of Bihar
Municipality. It was suggested during cross-examination of
PW-4 that accused Raj Kishore Sao was the Secretary of the
School and Secretary or a Member of a Political Party named
“Bharatiya Janta Party”. The witness expressed his ignorance
and stated that he did not know the above-mentioned facts.
77. PW-6, Md. Aftab Alam claimed himself to be
another eyewitness of the occurrence. It is ascertained from
his evidence also that on the date of occurrence at about 12:00
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Noon, he found a group of persons of a particular community
gradually assembling at a place near their mohalla. His father
informed the matter to him. Seeing the mob, PW-6 and his
brother-in-law Ali Ahmad proceeded towards the main Dargah
of the village riding on two cycles. When they reached near
the bridge, they saw the mob being armed with weapons.
Seeing the armed mob, he returned his house but his brother-
in-law remained untraceable till date. PW-6 took shelter in the
house of one Mohammad Miyan. He saw the women and
small children also taking shelter in the house of Mohammad
Miyan to conceal themselves from the mob. The house of
Mohammad Miyan was closed from inside. Within few
minutes, PW-6 heard a sound of explosion of bomb near the
house of Mohammad Miyan. Some of the miscreants set the
house of Mohammad Miyan on fire. Since, the house of one
Ulfat Miyan was on the adjacent east of the house of
Mohammad Miyan, the people who took shelter in the house
of Mohammad Miyan cut a hole on the eastern side wall and
took shelter in the northern side room of Ulfat Miyan. The
miscreants then set the house of Ulfat Miyan on fire. After fire
broke out, the father of PW-6 and some woman and children
again seeped through the said hole to the house of Mohammad
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Miyan, while others remained in the house of Ulfat Miyan.
The miscreants indiscriminately started assaulting the people
who took shelter in the house of Ulfat Miyan and Mohammad
Miyan amongst the miscreants. The witness could identify Raj
Kishore Sao, Sunil Sao @ Ranu Sao, Gilu Pandey (son of
Pandatayan), Umesh Thathera, Radhe Pandit @ Radhey
Kumhar, Chhote Kumhar. He also described how the above-
named accused persons were armed. The witness further
stated that Chhote Pandit being armed with a sword
committed murder of a six-days old baby, throwing him on the
grinding stone and assaulting him with the help of stone
grinder (pestle). In cross-examination, it was specifically
taken that one of the accused, namely Umesh Thathera openly
committed rape upon the wife of Salauddin in the room of
Ulfat Miyan in presence of 50-60 Mohammedans and
thereafter, she was murdered by Umesh. From his cross-
examination, it is ascertained that he saw the incident from the
northern side room “kothari” of Ulfat Miyan. Police rescued
him from the said room (Kothari) and he was taken to the
main Dargah of the village.
78. PW-9, Azimuddin corroborates the sequence of
events as narrated by PW-4 & PW-6. From his evidence, we
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find that seeing the agitated, armed mob he along with some
other people of the said mohalla took shelter in the house of
Jatti Singh. Jatti Singh was assaulted by the miscreants,
because he gave shelter to the neighbouring Mohammedan
people and tried to save them. He was rescued by police at
about 04:30 P.M. on the date of occurrence. Only then, he saw
that the houses of some Mohammedan people were burning.
The miscreants also killed and injured number of Muslims of
the said Mohalla. PW-9, however, did not tell the name of any
of the assailants.
79. PW-10, Md. Yunus gave an elaborate account of
the incident in his examination-in-chief. On the date of
occurrence at about 12:30 P.M. he was in his house. Seeing a
gathering of about 200 people of another community armed
with weapons, he along with his family members took shelter
in the house of Mohammad Miyan. Some other Mohammedan
inhabitants also took shelter in the said house to save
themselves from the agitated mob. Mohammad Miyan closed
the door of his house from inside. When the mob could not
enter inside the house of Mohammad Miyan, they set his
house on fire from outside. House of Ulfat Miyan is attached
to the house of Mohammad Miyan on the eastern side of wall.
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The witness and others opened a hole on the common wall of
the house of Mohammad Miyan to go to the house of Ulfat
Miyan to take shelter. When the miscreants found that some
people of the locality took shelter in the house of Ulfat Miyan,
they set fire on the house of Ulfat too. The people taking
shelter in the house of Ulfat Miyan again came to the house of
Mohammad Miyan like mice in the cage trying to find out
some way to save their lives. They took shelter in a “Kothari”
in the house of Mohammad Miyan. The miscreants broke
open the bolt of the said Kothari where mainly, the women
and children were taking shelter. They forcibly dragged the
women from the said Kothari and started injuring them with
sharp cutting weapons. They snatched away the ornaments of
the ladies. One of the female child, named, Murshida was
taken away by some miscreants and till date she remains
untraceable. The wife of Sahabuddin, namely, Sairunnisha and
the daughter of Hasib Miyan, named Ishrat were murdered by
the miscreants. The dead body of Sairunisha has not been
recovered till date. Mother of Salim named Judari Begum,
son-in-law of PW-10 named Ali Ahmad are also untraceable
till date. After the incident, police came and seeing police
party the miscreants left the place, then only the witness and
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other people who could save their lives came out from their
places and hiding. Police took them to the main Dargah of the
Village. The witness stated that amongst the miscreants, he
could identify Raj Kishore Sao, Panna Lal, youngest son of
Rama Sao, Sunil, Radhey Kumhar, Chhotey Kumhar, Lakhan
Kumhar, Surendra Sharma @ Sheetal Sharma, Bholu Chamar,
Nathun Chamar @ Jhapsi Chamar. The witness further stated
that Sairunnisha and Ishrat were murdered by Sunil. Sunil also
committed murder of the wife of PW-10 Kaniza Bibi and their
four-months old girl child Muni. Radhey Kumhar assaulted
Asgari Khatoon with the help of a bhala. Chhotey Kumhar
committed murder of 06 days baby of Ishrat, throwing him
against a grinding stone. PW-10 also stated that the offenders
whom he identified in Test Identified Parade (TIP) and also in
Court where setting fire on the houses of Mohammedans. The
Examination-in-Chief of PW-10 remained unshaken in spite
of long and elaborate cross-examination.
80. PW-13, Jamila Khatoon, is one of the injured
eyewitnesses, who gave a detailed and vivid account of the
attack. She deposed that at about 12:30 p.m. on 01.05.1981, a
large mob surrounded the houses in Alinagar Mohalla. She,
along with other women, children and some men, took shelter
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in Mohammad Miyan’s house and locked the door from
inside. When the mob set that house on fire, the inmates broke
a hole in the common wall between the house of Mohammad
Miyan and Ulfat Miyan. Thereafter, the mob then broke the
entrance door of Ulfat Miyan’s house also entered the
premises, dragged the women and children out on the
Verandah and courtyard and assaulted them brutally, looted
their jewellery and killed nine persons including Kaniza
Khatoon, Asgari Begum, Meharun, Shahnaz, Naseema,
Salauddin’s wife, Ishrat’s six-days-old infant, Armaan and
Rizwan. She specifically named Raj Kishore Sao, Panna Lal,
Gilu Pandey and others as the persons who were actively
involved in the assault, looting, and killing. She identified
several of them, both in court and during the Test
Identification Parade. In cross-examination, she stood firm on
her identification and denied having been tutored. Her
testimony is one of the most important direct eyewitness
accounts of the actual violence inside the houses.
81. PW-14, Md. Hasim, who is the informant on the
basis of whose recorded statement (Fardbeyan), Bihar P.S.
Case No. 333 of 1981 was registered. He is not an eyewitness
of the incident but we would like to record the evidence of
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PW-14 here and now, because upon his statement the case was
registered. According to the informant PW-14, he and his
brother Sahabuddin were going to Bari Dargah of the village
to offer Jumma prayer. After the prayer, when he came out, he
saw spiraling of smoke flowing towards the sky from Alinagar
Mohalla. He immediately rushed to the Police Outpost
situated outside the Dargah to seek help for the safety of his
family members, but the police initially did not pay any heed
to his request. Later, he again approached the on-duty police
officer along with Md. Aziz and Madrasi Baba, then only
police reached initially Alinagar in the afternoon. He
accompanied the police and found nine dead bodies and four
injured persons inside house of Ulfat Miyan. The police
brought the dead bodies and injured persons first to the
Dargah Outpost and thereafter to Sadar Hospital. Police
prepared inquest report in his presence and he put his
signature on the inquest report, which had been marked as
Exhibit-3/13 to 3/20. It is stated in his statement as well as
during his deposition that though he did not see the incident,
he came to know about the names of the attackers from the
injured persons, particularly, Ishrat Begum. In cross-
examination, he admitted the existence of a communal dispute
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with Raj Kishore Sao and Panna Lal over the graveyard of the
village. From his cross-examination, it is also ascertained that
Muslim leaders from Delhi, Lucknow, Agra, Patna and other
places had gone to Alinagar indicating political involvement
and backing of the communities from behind the curtain in the
entire episode. His evidence is important for establishing the
fact of the incident, the scale of casualties, and the initial
police response, though he is not a direct eyewitness to the
violence.
82. It is ascertained from the evidence of PW-16-
Md. Salauddin that on 01.05.1981 at about 12:30 P.M., the
people of the Hindu community came and surrounded his
house in Alinagar. He, along with other residents of the
locality, took shelter in Mohammad Miyan’s house and locked
the door from inside. When the mob set Mohammad Miyan’s
house on fire and started breaking the door, he and Yunus
Miyan broke a hole of about 3½ feet in the common wall that
separated the house of Mohammad Miyan and Ulfat Miyan.
After making a hole, all the inhabitants of Mohammadan
community, who took shelter in Mohammad Miyan’s house
seeped through the house of Ulfat Miyan. The rioters then
broke open the entrance door of Ulfat Miyan and killed ten
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women and children including his wife Nazneen alias Razia
Khatun. They also looted the ornaments and jewellery. He
named a large number of accused with specific weapons and
roles, including Raj Kishore Sao giving orders to kill the
people belonging to Mohammadan Community, Ajay Singh
dragging women and looting and many others out the injured
Shahabuddin’s son and Hasim’s daughter, who later on died in
hospital. He identified ten persons in the Test Identification
Parade as well as in Court. His testimony is one of the most
detailed direct accounts of the killings and looting inside Ulfat
Miyan’s house.
83. PW-17, Mostt. Sharifan, is the wife of
Mohammad Miyan, whose house was burnt to ashes,
household articles were lootted and the entire house was
ransacked. She corroborated the evidence of other
eyewitnesses in detail. In her evidence, she identified Raj
Kishore Sao, Lakhan Sao, Panna Lal, Daso Pawaria, Uday
Sao, Gilu Pandit, Sadhu Singh, Chandar Patwa, Laxman
Patwa, Naresh Gwala and Chhote Kumhar.
84. PW-18, Jarina, is another eyewitness, who
corroborated the incident of setting the house of Mohammad
Miyan on fire by the rioters, ransacking the house, looting the
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household articles and snatching the belongings of the
Muslims of the locality. She also corroborated that the
members of Mohammedan community were assaulted by the
mob. She identified Gilu Kumhar, Chandra Patwa s/o Chedi
Patwa, and Pandit Thathera as members of unlawful assembly
with deadly weapons. In cross-examination, she identified a
large number of persons from Patwa Toli, namely, Bharat
Patwa, Durga Patwa, Rajendra Patwa, Dinesh Patwa, Mohan
Patwa, Rameshwar Patwa, Jagarnath Patwa, Lakshman Patwa,
Kesto Patwa. She also identified Aitwari Chamar, Naresh
Chamar from Chamartoli, Sharan Yadav from Ganj, Ajay
Singh, Brahmdev Sao and Raj Kishore Sao. From her
evidence, it is also ascertained that about 10-15 persons of her
community saved their lives taking shelter in the house of Jatti
Singh.
85. PW-21, Md. Samim and PW-22, Anwari
(daughter of Ulfat Miyan), corroborated the eyewitnesses
account of the incident. PW-21 identified Raj Kishore Sao,
Gilu Pandey, Sadhu Singh and Umesh Thathera. He also
identified four persons, namely, Ishwari Singh, Mahavir
Prasad, Bharat Prasad and Lakshman Ram in the Test
Identification Parade as well as in Court. PW-22 identified Raj
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Kishore Sao, Gilu Pandey, Chandra Patwa s/o Chedi Patwa,
Umesh Thathera, Vishwanath, and Nandu (Suresh Gowala),
among the rioters. She also identified Dinesh Ram and
Ishwari Singh in the Test Identification Parade as well as in
Court. Her presence at Alinagar on the date and time of
occurrence was questioned during her cross-examination but
in reply she reiterated that she was present on the date and
time of occurrence at Alinagar.
86. Amongst other witnesses, PW-3, Md. Hanif did
not see the actual incident. From his evidence, it is found that
on 01.05.1981 at about 12:00 noon, some people had
assembled on the backside of his house. Amongst them, there
were Nandu Kotwa, Vinay Kotwa, Lakhan Kotwa, Nilu
Pandey, Chhotey Kumhar and others. They were saying that
no Mohammedan inhabitants would be allowed to leave the
place. From his evidence, we came to know for the first time
that one day before the date of occurrence there was a
communal clash between Hindus and Muslims and hearing
the words of threat, PW-3 become afraid and left his house
with his family members to Bari Dargah to offer Jumma
prayer. When he reached near Dargah, he saw smoke spiraling
out from Alinagar Mohalla. There was a police outpost outside
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the Dargah and Md. Hasim went to the Outpost to record a
statement. After sometime, Md. Hasim returned and said that
no police personnel were ready to go to Alinagar to pacify the
incident. Thereafter, PW-3, Md. Aziz and Madrasi Baba went
to police Chawki, they reported that Alingar Mohalla was set
on fire and requested them to immediately proceed to
Alinagar. Then, a police in the rank of Hawaldar talked to one
Shuklaji at about 03:00 P.M. Hawaldar Ganni, Shuklaji and
five police personnel armed with rifle reached Alinagar. After
about 1-2 hours, the witness saw that Hawaldar Ganni brought
the women and children, who were leaving to the Police
Outpost. Thereafter, two vehicles reached Alinagar from the
police station. The dead bodies of the persons who were killed
as well as the injured persons were taken to the vehicles. One
Md. Hasim went to the hospital along with the deceased and
injured persons. He identified some of the accused persons,
namely, Nilu Pandey and Laxman Kotwa.
87. Evidence of PW-7, Sahabuddin is almost similar
to the evidence of PW-3. When the incident took place, he
was in Bari Dargah to offer Jumma prayer. He accompanied
the persons who died and suffered injuries to the hospital by
police vehicle. He is a witness of two inquest reports marked
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as Exhibit-3 and 3/1.
88. PW-19, Vinay Kumar Sinha, as a police
personnel was in-charge of the Control Room. At about 2:40
p.m. on 01.05.1981, he received an instruction from the
Collector to go to Alinagar with police force. One Sub-
Inspector, armed police force was arranged from him and he
reached at about 4:00 p.m. with police force. In Police Chawki
near Alinagar Dargah, some people belonging to
Mohammedan community had assembled. There were some
injured persons in the said police outpost. PW-19 was brought
about the incident and informed the matter to the local police
station with a request to send more police force to maintain
law and order at Alinagar area, then he went to Alinagar
Mohalla. He saw one room in burnt condition and in his
presence nine dead bodies and six injured persons were
recovered. Outside the said house, an injured lady was lying.
In all there were seven injured persons- two of them women
and five of them were little children. The injured persons were
admitted to the hospital.
89. PW-20, Kameshwar Prasad Singh, was the
second officer attached to Bihar Police Station at Biharsharif.
At about 04:00 P.M., he was in the Control Room of the police
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station. At that time, as per the instruction of Collector, he
went to Alinagar by a Jeep with police force. He also brought
the injured persons, who were waiting in the Outpost at
Alinagar to the hospital. He visited the place of occurrence
and found three dead bodies lying in front of a house.
90. PW-24, Avindra Ranjan, who took photographs
of the place of occurrence. A series of photographs were
marked exhibits during trial of the case. The said photographs
depict enormity of the incident, showing demolition of
houses, thatched roofs, blood stained earth, burnt thatches etc.,
thereby corroborating the ocular testimony of the eye-
witnesses.
91. PW-25, Ibrar Hasan was the Sub-Divisional
Judicial Magistrate of Biharsharif. As per the order of the
learned Chief Judicial Magistrate, Biharsharif, he conducted
Test Identification Parade on several dates of suspects.
Conducting of Test Identification Parade, identification of the
witnesses, and the specific role attributed against the suspects
are delineated below in a tabular form:-
Accused Key TIP Discrepancies
Name witnesses Identificatio
and Roles n
Raj P.W. 4; gunsNot recordedHeavily named in Court
Kishore and orderedas identifiedwith gun / ordered by
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Sao to kill in P.W. 25’snearly all key survivers,
P.W. 6; gun TIP chartsbut absent from TIP Chart.
P.W. 10 ; gunfor the mainAlso absent from Ishart’s
ordered towitnesses dying declaration. Strong
kill prior enmity (grave yard /
P.W. 13 ; gun RSS Shakha Head)
ordered to
kill
P.W. 15; guns
order to kill
P.W. 16;
ordered to set
fire kill and
loot
P.W. 17 ;
guns, ordered
to kill
P.W. 18 ; part
of the mob of
assailants
P.W. 21; gun
Identified in
Court by
most
Panna Lal P.W. 4 ; spearNot recordedConsistent Court roles
and order in P.W. 25’s(spears / ordered), but
P.W. 10 ;TIP charts missing from TIP records.
spear and Linked to same prior
order enmity as Raj Kishore Sao
P.W. 13;
spear and
ordered to
kill
P.W. 15;
spear and
ordered
P.W. 17;
spear, ordered
to kill
Identified in
Court by
most
Gilu P.W. 3; partIdentified byHigh consistency between
Pandit of group Md. Samim,Court and TIP.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
69/142
P.W. 4 ; pistolSamima Stronges identification
/ sword Khatoon, evidence among all
P.W. 6 sword,Md. accused.
hitting Sallauddin
women (roles;
P.W. 10dragging
sword ,women,
hitting killing)
women
P.W. 13
sword,
beating
women took
away her
gold tika of
eight anna
P.W. 15;
dragging
P.W. 16;
dragging /
killing
P.W. 17;
sword,
dragging /
killing
P.W. 18; part
of tbe mob of
assailants
P.W. 21;
sword
Strong Court
identification
Umesh P.W. 6Identified byConsistent Court and TIP
Thathera beating andMd. roles (dragging / killing
harrassing Sallauddin women).
women (dragging /Prior enmity noted (old
(raped killing) case where he testified
Salauddin's against informant's family
wife and then - P.W. 6 and P.W. 10)
killled her;
allegation in
cross-
examination)
P.W. 10;
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
70/142
dragging and
killing
P.W. 13,
dragging and
beating
women and
setting them
on fire, took
away her
gold tika of
eight anna
P.W. 16;
dragged and
killed wife
Nazneen @
Razia Khatun
P.W. 17;
dragging and
killing
P.W. 21;
spear
Sadhu P.W. 13;Not Consistent Court roles
Singh spear, killingspecifically (spear / killing /
and recorded insnatching); weak or absent
sprinkling P.W. 25'sinexplicit TIP records.
kerosene andsummarized
setting fire charts
P.W. 16;
spear, killing
P.W. 17,
spear, killing
and snatching
belongings
P.W. 21, spear
Chhotey P.W. 3; sword Not Strong consistency on
Kumhar P.W. 4 sword specifically sword and child attack in
P.W. 6;recorded inCourt; missing from
sword, killedP.W. 25’sexplicit TIP records.
six day's oldTIP charts
child
P.W. 10;
sword, threw
child
P.W. 13;
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
71/142
sword
P.W. 16 ;
sword
P.W. 17;
sword
Sunil Sao P.W. 6;Not Consistent Court roles
orders, specifically (spear / killinng /
abduction ofrecorded inabduction); absent from
Murshida, P.W. 25’sexplicit TIP records
beating TIP charts
P.W. 10;
spear, killings
(Saibunnisha,
Ishrat, wife
Kaniza),
threw away
fourt month
old daughter
Munni
P.W. 13;
killing
women and
children
P.W. 16 ;
killng
Ishwari P.W. 13; gunIdentified byGood consistency
Singh and looting Jamila between Court and TIP
P.W. 15; TIP Khatun, Md.roles
P.W. 16; SaifSamim,
killing Anwari
P.W. 21; TIP Khatun, Md.
Salauddin
(armed with
Gadasi / saif,
killing /
looting)
Ajay P.W. 13;Identified byConsistent Court and TIP
Singh spear, killing Jamila roles
P.W. 15; TIP Khatun, Md.
P.W. 16;Samim,
dragged/kill /Anwari
loot Khatun,
(armed with
Bhala /
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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Spear
killing)
Naresh P.W. 13; Saif,Identified byConsistent Court in Court
Ravidas killing Md. and TIP
P.W. 16,Salauddin,
dragged andSamima
killed wifeKhatun
Razia (dragging /
Khatoon killing)
Rameshw P.W. 4;Identified byModerate consistency;
ar Ram sword, tookwidow some Court roles, TIP
mother Sharifan support from Sarifan.
P.W. 10;(looting /
sword arson /
P.W. 13;killing
sword
P.W. 17;
identified in
TIP
Moti Mentioned inIdentified byLimited Court mention;
Dusadh TIP Md. mainly TIP based.
Salauddin
(setting fire
to Md.
Miyan's
house)
Om Mentioned inIdentified byMainly TIP based; limited
Prakash TIP Md. Court detail.
Sao, Salauddin
Kamal and Md.
Kishore Samim
Sao (beating /
looting,
setting fire)
92. PW-26, Rajendra Prasad Sinha was an
Executive Magistrate, who accompanied Inspector of Police
and Deputy Superintendent of Police and CID, Bihar to
Alinagar. The Inspector seized burnt wood and some burnt
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
73/142
arms from three houses under a seizure list. He also seized
bloodstained earth and bloodstained apparels from the place
of occurrence under two separate seizure lists. PW-26 put his
signature as a witness to the seizure on all three above-
mentioned seizure lists. His signatures were marked as
Exhibit-3/22 to 3/24.
93. PW-27 was tendered by the prosecution.
94. PW-28 was a Hawaldar posted at Police Outpost
of Bari Dargah, he accompanied the police force to the place
of occurrence on being requested by the Madrasi Baba.
95. PW-29, was a Judicial Magistrate at the relevant
point of time, who identified two numbers of TIP reports
during his evidence. PW-31, Panna Lal Mehra was the I.O. of
the case. He was subjected to Examination-in-Chief, but he
did not come forward to face cross examination. Therefore,
we are not in a position to consider his statement during
Examination-in-Chief.
96. This is all about the evidence on behalf of the
prosecution. Accused persons did not lead any evidence in
support of their defence. In course of examination under
Section 313 of the Cr.P.C., they denied their involvement in
the incident.
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Arguments on behalf of the appellants: –
97. Learned counsels appearing on behalf of the
appellants raised the following issues in order to argue that
there were material contradictions in the prosecution case and
the appellants ought to have been allowed the benefit of
doubt. In other words, the evidence on record is not so
convincing that the appellants were convicted and sentenced
by the Trial Court: –
(i) It is submitted on behalf of the appellants that the
statement of the informant (P.W. 14), which was treated as
F.I.R. was cryptic in nature, did not describe the names of all
the miscreants, who were involved in the alleged offence and
especially the appellants were not named in the F.I.R. The
informant stated the names of Ranjit Sao, Chandar Patwa,
elder son of Chhedi Patwa, two persons, whose names could
not be understood from the paper book and Raj Kishore Sao
and other 40-50 persons in a group allegedly committed the
offence. Thus, the names of the appellants were not stated in
the F.I.R.
(ii) The appellants were made accused in connection
with Bihar P.S. Case No. 333 of 1981 on the basis of
identification by the witnesses in TI Parade, which were
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
75/142conducted after a lapse of two and a half months from the date
of occurrence. The learned counsels also raised various
technical questions in the mode and manner of conducting TI
Parade.
(iii) The entire incident that took place on 1 st of
May, 1981 was in retaliation of a previous incident which took
place a day before 1st of May, 1981, when Hindus were
attacked by Mohammedans in the same village. Therefore, the
incident ought to have been treated as a product of grave
provocation and charge under Section 302 of the I.P.C. ought
not to have been held to be established.
(iv) The witnesses who claimed themselves to be
the eye-witnesses of the occurrence are all close relatives and
members of the extended family and no independent
witnesses were examined.
(v) All the injured witnesses were not examined.
There were material discrepancies in the prosecution evidence
with regard to the roles attributed to the accused persons and
the testimonies of witnesses are not consistent in respect of
individual participation of the appellants.
(vi) Identification of the accused persons in the Test
Identification Parade, without their names being mentioned in
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76/142
the F.I.R., raises a serious doubt, particularly in absence of
evidence to show that the accused persons were not previously
known or shown to the witnesses.
(vii) It is also submitted that in a case involving a
large mob, the possibility of false implication cannot be ruled
out and the evidence of identification must be scrutinized with
great caution.
(viii) Mere presence in alleged unlawful assembly is
not sufficient to attract liability under Section 149 of the
I.P.C., unless participation and common object are clearly
established.
(ix) The appellants, so to say, the entire defence did
not get any opportunity to cross-examine the Investigating
Officer, causing serious prejudice to them.
(x) Last but not the least, when the prosecution case
itself alleges persons of a mob consisting of about 50-60
person, in such circumstances, the identification of individual
accused persons becomes inherently doubtful unless
supported by clear and consistent evidence. The so called eye-
witnesses were consistent in saying that they took shelter
inside the Kothari / Kothi in the house of Ulfat Miyan. It is
submitted that Kothari or Kothi is a small store room used for
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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storing food grains and generally there is no window or any
other weapon except a small place of entry and exit to keep
the food grains, to keep them immune from getting rotten or
infected by insects. Therefore, it was not possible for the so
called eye-witnesses to see the incident from inside the
Kothari or Kothi.
Arguments on behalf of Chhotey Kumhar (Cr.
Appeal (D.B.) No. 1124 of 2018) : –
98. In addition to the general argument as stated
above, the learned Advocate on behalf of the above-named
appellant states that the prosecution relied upon heavily on the
dying declaration of Ishrat Begum, which was recorded by
P.W. 29, Hardev Prasad, Judicial Magistrate, Biharsharif on
2nd of May, 1981. The said dying declaration was marked as
Exhibit-7 during trial of the case. In the said dying
declaration, it was stated by the deceased: –
मे रा नाम इशरत है . मै मोहममद हाशशम की पु त्री हं ू. मे रा
घर अलीनगर है . मु झे रामशकशोर लकडहारा के बे टा, पशडएशनया के
बे टा, अं गनू साव का पोतन, पटवा, कुमहार, एक राजपूत जो रामे शवर
के यहां बीडी बनता है , गोर फुलली का बे टा, दुसाध सब मोहलला का
आया और मे रे घर मे आग लगा शदया तथा खपडा नोचने लगा. सब
शमलकर तलवार और छुडा से मु झे मारा और कहा शक जयादा कुछ
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
78/142करोगी तो बम से मार दे गे . मे री मां को भी उन लोगो ने मार शदया.
मे री बहन, चाची, यूनुस के घरवाली को भी मारा. राम शकशोर
फटफशटया चलता है . उहे हुकम शदया था.
99. Thus, it is pointed out by the learned Advocate
on behalf of the above-named appellant, that deceased, Ishrat
did not take the name of the appellant as one of her assailants.
Learned counsel for the appellant also submits that the
Medical Officer, P.W. 1, who conducted post-mortem
examination over the dead-body of Ishrat, found as many as 8
sharp cutting injuries on her body. According to report, one
incised wound of bone rub on the head; incised wound on the
right side of the face causing fracture of mandible; incised
wound in orbital cavities; and incised wound in abdomen of
the deceased causing puncture of abdominal cavity, were
sufficient to cause death of Ishrat. The Medical Officer during
cross-examination also opined that he found ecchymosis in
the brain matter of Ishrat. He also opined that ecchymosis
appears in brain matter within two hours of receiving the
injury. In case of the deceased, there was ecchymosis in brain
matter due to rupture of blood vessels in the brain. As a result
of ecchymosis, memory, ability to speak and consciousness of
the injured is effected. In view of such expert opinion by the
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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Medical Officer, it is highly questionable as to whether Ishrat
was in proper physical and mental ability to make a dying
declaration on the next date of the occurrence before the
learned SDJM, Biharsharif.
100. Reliance was placed by the learned Advocate
on behalf of the above-named appellant in case of Ganesh
Bhavan Patel & Anr. v. State of Maharashtra, reported in
AIR 1979 SC 135, wherein the Hon’ble Supreme Court
observed that delay in recording the statement of eye-
witnesses may amount to serious infirmities in the prosecution
case.
101. Again, in Govind Mandavi v. State of
Chattisgarh, reported in 2025 INSC 1399, the Hon’ble Apex
Court was pleased to set aside the conviction based upon the
evidence of a woman witness who provided information to the
informant about the occurrence without making any allegation
against the convict due to which the name of the convict was
not incorporated in the F.I.R. Subsequently, after four days of
the occurrence, her statement under Section 161 Cr.P.C. was
recorded by the Investigating Officer and for the first time, the
allegation was levelled against the convict.
102. Factual matrix of Govind Mandavi (supra) is
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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not similar to that of the present case. The present case
depicted an incident of violent communal riot where the
people of Hindi community unleashed terror in “Mohalla” of
Muslim people. As many as 9 persons were murdered. Many
others are till unnoticed and untraceable. Good number of
people were injured. The Police Authority, though posted in
the same village in an outpost, did not initially come in rescue
of the victims. Tension prevailed for about four days after the
incident. In such circumstances, it is obvious, prompt
investigation was halted. Administration might have been
busy for the settlement of the victims. Under such
circumstances, delay caused by the Investigating Officer to
record the statement of witnesses under Section 161 of the
Cr.P.C. cannot be held to be fatal for the prosecution.
103. The learned Advocate appearing on behalf of
the appellant further submits that the Trial Court relied on the
evidence of P.W. 10 only to convict the appellant. While
convicting the appellant, the Trial Court did not consider the
evidence against the accused Raj Kishore Sao, practically
under whose leadership, the alleged incident took place. The
Trial Court in its judgement clearly observed “Admittedly
there is rivalry regarding religious fought between RSS and
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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Muslim Community, hence every possibility of false
implication of some of the accused cannot be ignored.”
104. In support of his argument, he refers to the
decision of Javed Shaukat Ali Kureshi v. State of Gujarat,
reported in 2023 AIR (SC) 4444. In the said decision, it was
held by the Hon’ble Supreme Court that same evidence of one
or two witnesses on the point of incident cannot be used to
convict one accused and again to acquit another. The appellant
stands on the same footing as that of Raj Kishore Sao.
Therefore, he was also entitled to be benefited by an order of
acquittal.
Arguments on behalf of Kisto Patwa @ Kistu
Ram and Ajay Singh (Criminal Appeal (DB) No. 1063 of
2018) : –
105. Learned Advocate on behalf of the above-
named appellants submits that the above-named appellants
were not named in the F.I.R.. They participated on the basis of
their identification in the TI Parade by P.W. 15, P.W. 16 and
P.W. 21.
106. The learned Advocate on behalf of the
appellants took us to paragraph nos. 39 to 41 of the impugned
judgement and submits that Kisto Patwa and Ajay Singh were
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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held guilty only on the basis of their identification in TI
Parade and the Trial Court also believed the statement of
witnesses, who identified the above-named appellants about
their role in the incident attributed against them.
107. It is submitted by the learned Advocate
appearing on behalf of the appellants that identification in TI
Parade by the witnesses and description about their overt act
to the learned Magistrate during TI Parade are not substantive
pieces of evidence. It is no longer res integra that TI Parade is
held only in the aid of investigation to ascertain as to whether
the investigation was being proceeded in right direction or
not. Identification of suspects in the TI Parade acts as a
corroborative piece of evidence when the same witness
identifies the accused during trial and makes statement on
oath regarding his role in the commission of offence.
108. In the instant case, though the witnesses were
identified by some of the eye-witnesses, there is no
consistency in evidence in respect of their role attributed
against them. They were also not named in the F.I.R.. Even
they were not named by the deceased in the dying declaration.
109. The learned Advocate on behalf of the
appellants also submits that as per the statement of witnesses,
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
83/142
they took shelter in the house of Ulfat Miyan, when the house
of Mohammad Miyan was set on fire. Some of them broke a
hole in the common wall of Mohammad Miyan and Ulfat
Miyan. Tormented victims went to the house of Ulfat Miyan
through the said hole and took shelter in the Kothari/Kothi of
Ulfat Miyan. The house of Ulfat Miyan was also set on fire.
Surprisingly enough, no person of Mohammaden Community
received any burn injury, though both the houses were gutted
by fire. This is a strange incident which cannot be believed to
be true.
110. The learned Advocate on behalf of the
appellants also raised doubt about the mode and manner of
holding TI Parade of the suspects.
111. With regard to delay in conducting TI Parade,
the learned Advocate on behalf of the appellants refers to a
decision of the Hon’ble Supreme Court in Sheikh Hasib @
Tabarak v. the State of Bihar, reported in 1972 4 SCC 773. It
is observed in the aforesaid decision that identification
parades are ordinarily held at the instance of the investigating
officer for the purpose of enabling the witnesses to identify
either the properties which are the subject-matter of alleged
offence or the persons who are alleged to have been concerned
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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in the offence. Such tests or parades belong to the
investigation stage and they serve to provide the investigating
authority with material to assure themselves if the
investigation is proceeding on right lines. It is accordingly
desirable that such test parades are held at the earliest possible
opportunity. Early opportunity to identify also tends to
minimise the chances of the memory of the identifying
witnesses fading away by reason of long lapse of time. But
much more vital factor in determining the value of such
identification parades is the effectiveness of the precautions
taken by those responsible for holding them against the
identifying witness having an opportunity of seeing the
persons to be identified by them before they are paraded with
other persons and also against the identifying witnesses being
provided by the investigating authority with other unfair aid or
assistance so as to facilitate the identification of the accused
concerned.
112. A careful perusal of the aforesaid observation
tends to lead us to hold that if delay in holding the Test
Identification Parade is couched with improper activity of the
Investigating Officer by showing and identifying the suspects
with the witness before identification parade or failure on the
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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part of the learned Judicial Magistrate to take statutory
precautions while holding the test, such delay will go against
the prosecution, but delay, per se, is not a ground to suspect
identification parade. In the absence of cross-examination and
suggestions that were required to put to the identifying
witnesses and the learned Judicial Magistrate that the suspects
were identified with the witnesses to be conducting the TI
Parade or the TI Parade was conducted without following the
statutory procedure, solitary submission that the Test
Identification Parade ought not to be considered only for delay
in holding such identification parade, is untenable and cannot
be considered.
Arguments on behalf of Nand Lal Yadav (Cr.
Appeal (DB) No. 1030 of 2018) : –
113. The learned Advocate on behalf of the above-
named appellant has adopted the submissions made by the
learned counsels on behalf of other appellants. It is also
submitted by him that no specific role was attributed against
Nand Lal Yadav by the so called witnesses.
Submissions on behalf of Sunil Kumar @
Sunaina Sao @ Sunil (Criminal Appeal (DB) No. 979 of
2018):-
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
86/142
114. The learned counsel appearing on behalf of the
appellant submits that the appellant is not named in the F.I.R.
He was implicated in this case and subsequently convicted
only on the basis of his identification in TI Parade and
subsequently identification of some of the witnesses in Court,
attributing certain overt act against him. It is also submitted by
him that as per the prosecution case, one Md. Hasim (P.W. 14)
reported for the first time to the Police Officer posted in the
outpost of village-Alinagar that fire broke out in Alinagar
Mohalla. Police did not take any action on such report.
Subsequently, Md. Hanif (P.W. 3), Md. Aziz and Madrasi
Baba of main Dargah again went to the outpost and requested
police to take appropriate step to save the residents of
Alinagar. Then, Police went to Alinagar.
115. It is contended on behalf of the accused Sunil
Kumar that the prosecution suppressed the initial statement, on
the basis of which police went to the place of occurrence and
took step to prevent further commission of cognizable offence.
According to the learned Advocate, the first information by the
police was suppressed by the prosecution.
116. It is also submitted by him that the statement
made by P.W. 14 (informant) is nothing but a statement under
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
87/142
Section 161 of the Cr.P.C. and such statement cannot be treated
as statement under Section 154.
117. In support of his contention, he refers to an
unreported judgement of the Hon’ble Supreme Court in State of
M.P. v. Ratan Singh & Ors., Criminal Appeal No. 1034 of
2013, decided on 5th of September, 2018. In paragraph no. 5 of
the judgement, the Hon’ble Supreme Court observed: –
“5. …… It is a clear case of suppression
of earliest information which was of vital
importance. As emphasised by this Court
in Amitbhai Anil Chandra Shah v. Central
Bureau of Investigation, (2013) 6 SCC
348, only the earliest or the first
information in regard to the commission
of a cognizable offence satisfies the
requirements of Section 154, and
consequently there cannot be a second
F.I.R. Rather it is absurd or ridiculous to
call such information as second F.I.R. In
the case of Subramaniam v. State of T.N.,
(2009) 14 SCC 415, this Court observed
that if an F.I.R. is filed after recording the
statement of the witnesses, such second
information would be inadmissible in
evidence. Moreover, in Nallabothu
Ramulu v. State of A.P., (2014) 12 SCC
261, the Court was of the view that the
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
88/142non-treatment of statements of injured
witnesses as the first information cast
doubt on the prosecution version.”
118. The learned Advocate further submits that the
statement of Md. Hasim (P.W. 14), which was treated as F.I.R.
was recorded on 1st of May, 1981 at 08.00 P.M. in Bihar Sadar
Hospital. The prosecution suppressed the fact altogether that
Md. Hasim went to the outpost of his village situated by the side
of main Dargah when he found smoke coming out from Alingar
locality. No statement of Md. Hasim was recorded at that time
by the on-duty police officer in the outpost. On the contrary,
Fard Beyan was recorded at Bihar Sadar Hospital after a lapse
of about 5/6 hours. The Investigating Authority suppressed the
fact that the informant went to the outpost and narrated the
incident to the on-duty police officer, rather the Investigating
Officer stated that the statement of Md. Hasim in the hospital
was the first statement which was treated as F.I.R.. Suppression
of the initial statement renders the entire prosecution case
suspect.
119. With regard to the identification of the accused,
the learned Advocate appearing on behalf of the appellant refers
to another decision of the Hon’ble Supreme Court in Prakash v.
State of Karnataka, reported in 2014 INSC 271. He especially
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
89/142
refers to paragraph nos. 26 to 33 of the aforesaid report.
Arguments advanced by the learned Amicus
Curiae, namely, Mr. Ravi Shankar Roy, on behalf of Ishwari
Singh (Cr. Appeal (DB) No. 1098 of 2018) and Laxman Ram
(Cr. Appeal (DB) No. 1067 of 2018): –
120. The learned Amicus Curiae has adopted the
submissions made by the learned counsels for the other accused
persons. It is submitted by him that the appellants are victims of
communal enmity and they were wrongly implicated in the case.
No overt act was attributed against the appellants. They are in
custody for a pretty long time. Therefore, the appellants should
be acquitted.
Conclusion: –
121. We have elaborately appreciated the evidence
hereinbefore. There are certain important circumstances
discernible from the Trial Court record. Though the Trial Court
record is very old, we have given patient perusal of each and
every page of the Trial Court record.
122. It is needless to say that the deposition of a
person consists of three parts, examination in chief, cross-
examination and re-examination if any, and further cross
examination. All the witnesses on behalf of the prosecution were
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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elaborately cross-examined. No suggestion was put to any of the
witnesses in the form of denial that no incident of communal
riot took place on 1st of May, 1981 at about 12.00 to 12.30 p.m.
at Alinagar Mohalla. Therefore, the defence has also admitted
that there was communal riot between two communities on 1st
of May, 1981 at Alingar, The accused persons also did not deny
that during such communal riot, 9 persons, mostly women and
little children, including a 6 days old baby were killed. Some
old and young persons of Mohammaden Community were
missing and untraceable till date from the date of occurrence.
When they are not found within seven years of their
disappearance, it would be held that they also received the same
fate as that of the deceased. It is found from the evidence of
P.W. 3, P.W. 14 as well as other witnesses, who were going to
offer Jumma Namaz to main Dargah that they saw assembly of
people of another community gradually increasing and they
were saying amongst themselves that the entire Mohalla of
Mohammaden Community would be surrounded by them so that
nobody could leave from the Mohalla. Hearing this, they
became afraid and went away towards Dargah. This form of
unlawful assembly was not challenged anywhere by the defence
in course of cross-examination of witnesses.
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123. Section 141 defines unlawful assembly in the
following words: –
“141. Unlawful assembly. – An
assembly of five or more persons is
designated an “unlawful assembly”, if the
common object of the persons composing
that assembly is-
First. – To overawe by criminal
force, or show of criminal force, [the
Central or any State Government or
Parliament or the Legislature of any
State), or any public servant in the
exercise of the lawful power of such
public servant; or
Second. – To resist the
execution of any law, or of any legal
process; or
Third. – To commit any mischief
or criminal trespass, or other offence; or
Fourth. – By means of criminal
force, or show of criminal force, to any
person, to take or obtain possession of
any property, or to deprive any person of
the enjoyment of a right of way, or of the
use of water or other incorporeal right of
which he is in possession or enjoyment,
or to enforce any right or supposed right;
or
Fifth. – By means of criminal
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force, or show of criminal force, to
compel any person to do what he is not
legally bound to do, or to omit to do what
he is legally entitled to do.
Explanation. – An assembly
which was not unlawful when it
assembled, may subsequently become an
unlawful assembly.”
124. A plain reading of the provision contained in
Section 141 of the I.P.C. states that the important ingredients of
the unlawful assembly are the number of persons forming it, i.e.,
five and their common object. Common object of the person
composing that assembly would be formed on the spur of the
moment and does not require prior deliberation. The code of
conduct adopted by such assembly; their behaviour before,
during and after the incident; and the arms carried by them, are
a few basic and relevant factors to determine the common
object.
125. In the instant case, evidence of P.W. 3, P.W. 14
and others who are not even eye-witnesses clearly proves
formation of unlawful assembly by members of Hindu
Community armed with deadly weapons, like, guns, rifles,
pistols, Bhala, sword and similar others declaring that not a
single person of Mohammaden Community would be allowed to
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leave the place, clearly suggests formation of unlawful assembly
and common object of the assembly.
126. It is found from the record that appellant Ishwari
Singh was identified in Court by P.W. 15, P.W. 16 and P.W. 21.
Appellant Sunil Kumar and Nand Lal Yadav were identified by
P.W. 6 and P.W. 13. Appellant Kisto Patwa and Ajay Singh were
identified by P.W. 16 as well as deceased Ishrat in her dying
declaration. Appellant Laxman Ram was identified by P.W. 13,
P.W. 16 and P.W. 21. Appellant Chhotey Kumhar was identified
by P.W. 4, P.W. 6, P.W. 10 and P.W. 17 during trial of the case.
127. The witnesses who identified the above-named
appellants clearly state the specific role of the appellants in the
offence.
128. In Nallamsetty Yanadaiah & Ors. v. State of
Andhra Pradesh, reported in AIR 1993 SC 1175, it is held by
the Hon’ble Supreme Court that for the purpose of application of
Section 149, I.P.C., the prosecution has to prove the presence
and participation in an unlawful assembly. The presence of these
accused was mentioned consistently by all the witnesses. In a
case of this nature, particularly, when the occurrence has taken
place in a village, several villagers might have gathered and,
therefore, the further test is whether the participation has been
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proved so that their being members of an unlawful assembly can
be accepted safely. In that view of the matter, the Courts below
accepted the evidence of the injured witnesses who consistently
deposed that these accused who were convicted under S.
302/149, I.P.C. were present and also participated in the
occurrence by setting the house of Mohammad Miyan and Ulfat
Miyan on fire, looting of household articles and jewelleries from
the women of the said community and causing indiscriminate
murder of more than 9 persons and injuries to number of
persons. Therefore, the evidence on record is more than
satisfactory against the accused persons / appellants that they
had common object to commit the above offence and they could
be convicted under Section 302 of the I.P.C. with the aid of
129. It is needless to say that in order to fasten
vicarious responsibility on any member of an unlawful
assembly, the prosecution must prove that the act constituting an
offence was done in prosecution of the common object of that
assembly or the act done is such as the members of that
assembly knew to be likely to be committed in prosecution of
the common object of that assembly. Under this section,
therefore, every member of an unlawful assembly renders
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himself liable for the criminal act or acts of any other member
or members of that assembly provided the same is/are done in
prosecution of the common object or the common object is/are
such as every member of that assembly knew to be likely to be
committed. This section creates a specific offence and makes
every member of the unlawful assembly liable for the offence
committed in the course of the occurrence provided the same
was/were committed in prosecution of the common object or
was/were such as the members of that assembly knew to be
likely to be committed. Since this section imposed a
constructive penal liability, it must be strictly construed as it
seeks to punish members of an unlawful assembly for the
offence or offences committed by their associate or associates
carrying out the common object of the assembly. What is
important in each case is to find out if the offence was
committed to accomplish the common object of the assembly or
was one which the members knew to be likely to be committed.
There must be a nexus between the common object, and the
offence committed and if it is found that the same was
committed to accomplish the common object every member of
the assembly will become liable for the same. Therefore, any
offence committed by a member of an unlawful assembly in
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prosecution of any one or more of the five objects mentioned in
Section 141 I.P.C. will render his companions constituting the
unlawful assembly liable for that offence with the aid of Section
149 1.P.C.
130. A common question was raised by all the learned
counsels appearing on behalf of the accused persons that as the
victims were compelled to take shelter inside a Kothari or
Kothi, which is a small dark space made of mud wall without
any window, the witnesses could not have been any opportunity
to identify the accused persons.
131. We are not in a position to accept such argument
because it is in the evidence, that, women and the children were
dragged from inside and murdered in the open verandah of the
house of Ulfat Miyan. The Executive Magistrate who visited the
place of occurrence found one dead body of a woman lying
outside the door of Ulfat Miyan. When the victims were dragged
from the Kothari or Kothi to the Varandah, the survivors had
automatic opportunity to see the perpetrators of offence. Thus,
we are satisfied that the identification of the accused persons
with their specific role in the commission of offence.
132. Another question was raised very seriously by
the defence that proper procedure was not maintained while
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conducting the TI Parade. This issued cannot be argued without
specific cross-examination to the learned Magistrate. No cross-
examination was made to the learned SDJM (P.W. 25) as regards
the mode and manner of the test identification parade.
Moreover, we have already stated that test identification parade
is held during the time of investigation and the basic purpose of
the test identification parade is to ascertain as to whether the
investigation is proceeding in right direction as against the
suspects, who have been apprehended in an offence. TI parade
operates as a corroborative evidence as it is held by the learned
Judicial Magistrate free from all embellishment. Now TI parade
was held by the learned SDJM, Biharsharif of 26 suspects. No
question was asked in course of cross-examination of the
learned SDJM that TI parade was not properly held or that the
suspects were previously identified with the witnesses or that
the procedure was not maintained. Even during the TI parade,
none of the suspects made any complaint to the learned SDJM
that they were shown to the witnesses prior to TI parade.
133. Under such circumstances, we do not find any
reason to disbelieve the identification of the witnesses in TI
parade. However, at the same time, we are of the view that we
do not want to rely on identification of the accused in TI parade.
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We rely on the substantive piece of evidence of identification by
the witnesses in Court in the following manner: –
Witness Vantage Point Perpetrators Specifically
Identified
PW-4 Md. Roof of his ownRajkishor Sao (gun), Panna Lal
Salim (spear), Rameshwar Sav Patwa
toilet (hidden while
Uddin (sword), Surendra Sharma @
mob looted andShital Sharma (lathi), Chhote
Kumhar (sword), Billu Pandey
burnt his house)
(pistol & sword), Laxman Patwa
Para 2 (axe), Ramnath Patwa (sword),
Vishwanath Patwa (saif) –
leading the mob
PW-6 Md. Inside UlfatRaj Kishore Sao (giving orders),
Aftaab Sunil Sao (bhala, assaulting &
Miyan's house
Alam killing), Gillu Pandey (sword,
(northern room /assaulting women), Umesh
Thathera (assaulting & killing
courtyard area after
women), Radhey Pandit @
moving through theRadhe Kumhar (bhala), Chhote
Kumhar (sword, killed 6-day-old
wall hole)
baby)
Para 1
PW-10 Inside MohammadSunil (bhala, killed Saibunnisha,
Md. Yunus Ishrat, Kaniza & 4-month-old
Miyan’s house, in
baby), Radhey Kumhar (bhala,
the south-westkilled Asgari), Chhote Kumhar
(sword, killed 6-day-old baby),
corner, behind the
Lakhan Kumhar (sword),
wall (hid in a roomSurendra Sharma (lathi), Nathun
Chamar (bhala & bomb)
and watched the
women & children
being dragged out)
Para 1 & 6
PW-13 Inside UlfatRajkishore Sao (orders), Panna
Jamila Lal (orders), Gilu Pandey (sword,
Miyan’s house
Khatoon dragging & assaulting), Umesh
(corner room – theThathera (dragging & killing),
Sadhu Sao (bhala, killing
one whose wall
children & ladies), Nandu
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(garasa), Rameshwar Patwa
outside after door
(sword), Bisheshwar Sonar, Ram
broken) Chandra, Naresh Gop, Suresh
Gop, Bijay (pistol), Laxman &
Para 1 & 9
Vishwanath (garasa)
PW-15 Inside UlfatRajkishore Sao (gun, giving
Samima orders), Panna Lal (spear, giving
Miyan’s house
Khatun orders), Gilu Pandey (dragged
(small room, thenher from small room to verandah
and assaulted)
the mob took them
to a big room and
then to the
verandah,
personally
dragged)
Para 1
PW-16 Hid in a room nextRajkishore Sao (orders), Gilu
Md. Pandey & Umesh Thathera
to a Kothi (Para 2)
Salauddin (dragging & killing women),
Behind a kothiNaresh Ravidas (dragged &
killed his wife), Ajay Singh
(Para 6)
(dragging women & looting) +
Both in Ulfat long list of others with weapons
Miyan’s house
PW-17 Her ownRajkishore Sao (gun, orders),
Mostt. Lakhan Sao (pistol), Panna Lal
(Mohammad
Sarifan (spear, orders), Daso Pawaria
Miyan’s) house,(pistol), Uday Sao (gun), Gilu
Pandit (sword, killing), Sadhu
watching through
Singh (spear, killing & robbing),
the “sendh” (hole)Chandar Patwa, Laxman Patwa,
Naresh Gwala, Chhote Kumhar
into Ulfat Miyan’s
house
Para 1
PW-18 Inside her ownGilu Kumhar, Chandra Patwa s/o
Jarina Chedi Patwa, Pandit Thathera +
(Ulfat Miyan’s)
large number from Patwa Toli
house (Bharat, Durga, Rajendra,
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Jagarnath, Lakshman, Kesto
Patwa), Ajay Singh, Brahmdev
Sao, Raj Kishore Sao
PW-21 In a room behind Rajkishore Sao (gun, orders),
Md. the kothi in Ulfat Gilu Pandey (sword), Sadhu
Samim Miyan’s house Singh & Umesh Thathera
(spears)
PW-22 Inside Ulfat Rajkishore Sao (gun), Gilu
Anwari Miyan’s house Pandey, Chandra Patwa s/o Chedi
(northern room) Patwa, Umesh Thathera,
Vishwanath, Nandu (Suresh
Gowala) + Dinesh Ram &
Ishwari Singh in TIP
134. Another issue was raised by the defence to the
effect that when the houses of Mohammad Miyan and Ulfat
Miyan was attacked by a mob of about 50-60 persons, it was not
possible for the witnesses to identify the appellants.
135. In Lokeman Shah v. State of West Bengal,
reported in 2001 5 SCC 235, one Vinod Kumar Mehta, a 35
years old IPS officer was then the Deputy Commissioner of
Police (DCP) at the Port Division, Calcutta. The Garden Reach
Police Station falls within the territorial limits of his domain
and, hence, he set out to quell the riots, escorted by his security
guard Murkhtar Ali (A Police Constable) besides some other
Police personnel. When they felt that the infuriated rioters were
thirsting for victims, they thought it safe to go into a mosque
expecting asylum. But the Imam of the mosque was not
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disposed to afford a shelter to such people. So they went out of
the mosque. The security guard Mukhtar Ali ran into the house
of a private individual while the Deputy Commissioner ran into
the house of a Police Constable (PW-21, Abdul Latif Khan). As
the rioters were chasing him, PW-24, Md. Hadish Khan, son of
PW-21, Abdul Latif Khan gave asylum to the Deputy
Commissioner in his house. The rioters spotted the fleeing cops.
The Deputy Commissioner in order to save himself from the
fury of the chasing mob got into the bathroom of the house of
PW-21 but a few of the murderers pursued him up to that place
and caught him and killed him.
136. Under such factual backdrop, it was held by the
Hon’ble Supreme Court that the positional importance of PW-24
(Md. Hadish Khan) as a witness for the occurrence is
significant. The incident happened in his own house and in his
presence. He would, thus, be one of the most natural witnesses
to speak about what happened in front of him. There was no
cause for PW-24 to have any bias against appellant-Naso for
falsely implicating him nor was there any difficulty for PW-24
to identify Naso as one among the assailants particularly when
the witness ascribed a specific serious role to that accused. His
evidence has secured corroboration from the testimony of his
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father PW-21, Abdul Latif who said that his son told him that
Deputy Commissioner of Police took shelter in his house and
that appellant-Naso and some other persons (whose names were
also mentioned) assaulted him. Such evidence of PW-21 is
admissible under S. 157 of the Evidence Act as a corroborative
material.
137. The same principle is applicable in the instant
case. It is true that a mob of about 50-60 persons attacked
Mohammaden Community of Alinagar Mohalla, but it is not
disputed that both the appellants and the witnesses used to live
in the same village for long time. They were known to each
other. In case of mob attack, it is not expected that all 50-60
persons will commit the same overt act. But the mere presence
in the unlawful assembly with sharing of common object is
enough to pass an order of conviction with the aid of vicarious
liability under Section 149 of the I.P.C.
138. Learned counsels for all the appellants on the
same tune echoed that during trial, the Investigating Officer was
not examined.
139. It appears from the record that the Investigating
Officer was examined in chief as P.W. 31, but his presence could
not be ascertained during cross-examination. Therefore,
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evidence of P.W. 31 cannot be taken into consideration without
he being cross-examined.
140. At this stage, a question naturally comes for
consideration as to the effect of non-examination of the
Investigating Officer in a criminal trial.
141. It is no longer res integra that Investigating
Officer is a formal witness. However, his evidence is necessary
for affirmation of contradiction in the statement of witnesses
recorded by him under Section 161 of the Cr.P.C. and the
statement given by such witnesses during trial on oath.
142. Section 161 of the Cr.P.C. empowers any Police
Officer making investigation under Chapter-XII of the Code to
examine orally any person supposed to be acquainted with the
circumstances of the case. Sub-section (iii) of Section 161 states
that the Investigating Officer may record the statement of a
witness in writing. But no such statement shall be signed by the
witness or that such statement cannot be used as evidence
except for contradiction. This provision is laid down in Section
162 of the Cr.P.C., which runs thus: –
“162. Statements to police not
to be signed: Use of statements in
evidence. –
(1) No statement made by any
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an investigation under this Chapter,
shall, if reduced to writing, be signed by
the person making it; nor shall any such
statement or any record thereof, whether
in a police diary or otherwise, or any
part of such statement or record, be used
for any purpose, save as hereinafter
provided, at any inquiry or trial in
respect of any offence under
investigation at the time when such
statement was made:
Provided that when any
witness is called for the prosecution in
such inquiry or trial whose statement has
been reduced into writing as aforesaid,
any part of his statement, if duly proved,
may be used by the accused, and with the
permission of the Court, by the
prosecution, to contradict such witness in
the manner provided by section 145 of
the Indian Evidence Act, 1872 (1 of
1872); and when any part of such
statement is so used, any part thereof
may also be used in the re-examination
of such witness, but for the purpose only
of explaining any matter referred to in
his cross-examination.
(2) Nothing in this section shall
be deemed to apply to any statement
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of section 32 of the Indian Evidence Act,
1872 (1 of 1872), or to affect the
provisions of section 27 of that Act.
Explanation. – An omission to
state a fact or circumstance in the
statement referred to in sub-section (1)
may amount to contradiction if the same
appears to be significant and otherwise
relevant having regard to the context in
which such omission occurs and whether
any omission amounts to a contradiction
in the particular context shall be a
question of fact.”
143. A plain reading of the above provision, especially
the proviso to Section 162(1) of the Cr.P.C. makes it abundantly
clear that when any witness is called for prosecution in any
enquiry or trial, whose statement has been recorded into writing
by the Investigating Officer, any part of his statement, if duly
proved, may be used by the accused and with the permission of
the Court, by the prosecution to contradict such witness in the
manner provided by Section 145 of the Evidence Act and when
part of such statement is so used, any part thereof may also be
used in the re-examination of such witness, but for the purpose
only of explaining any matter referred to in his cross-
examination.
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144. This provision seems to us, creates a lack of
understanding as to how a contradiction is to be taken to the
minds of most of the Judicial Officers in district judiciary. We
feel it necessary to state that if there remain contradiction in the
evidence of a witness stated on oath and his earlier version
recorded by an Investigating Officer under Section 161 of the
Cr.P.C., such contradiction can only be taken by way of
suggestion, forming the question in following manner: –
“I put it to you that you have not stated to the IO
………….”
145. Whatever may be the answer of the witness,
either affirmative or negative, is required to be corroborated by
the cross-examining Advocate with the IO bringing his attention
to the statement recorded under Section 161 of the Cr.P.C. by
him and asking the question as to whether the particular witness
had stated the fact contradicted to him while making statement
under Section 161 of the Cr.P.C. or not. The Court is bound to
record the answer of the IO, then only taking contradiction
between the earlier statement of the witness and his statement
on oath subsequently in oath, will be held to be complete. So the
evidence of Investigating Officer is necessary when there
remains need for taking affirmation or negation of contradictory
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statement made by a witness.
146. In the instant case, no contradiction was taken by
the cross-examining Advocate in respect of the previous
statement made by the eye-witnesses and other witnesses to the
occurrence during their cross-examination. Therefore, cross-
examination of Investigating Officer was not necessary and
under such circumstances, non-examination of the IO is also not
fatal.
147. In Behari Prasad & Ors. v. State of Bihar,
reported in (1996) 2 SCC 317, the Hon’ble Supreme Court
found while assessing the facts of the case that the involvement
of the accused in committing the murder was clearly established
by evidences of the eye-witnesses. Such evidences are in
conformity with the case made out in F.I.R. and also with the
medical evidence. Hence, for non-examination of the
Investigating Officer, the prosecution case should not fail. The
Hon’ble Supreme Court was also pleased to indicate that it will
not be correct to contend that if an Investigating Officer is not
examined in a case, such case should fail on the ground that the
accused were deprived of the opportunity to effectively cross-
examine the witnesses for the prosecution and to bring out the
contradictions in their statement before the police. A case of
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prejudice likely to be suffered by an accused must depend on the
facts of the case and no universal straight jacket formula should
be laid down that non-examination of the Investigating Officer
per se vitiates a criminal trial.
148. In the instant case, in view of the fact that no
contradiction was taken from any of the witnesses between their
earlier statement recorded under Section 161 of the Cr.P.C. and
the subsequent statement recorded by the Court, question of
taking contradiction by cross-examining the Investigating
Officer does not arise.
149. We therefore, do not find any merit in the instant
appeal to turn down the judgement passed by the Trial Court.
150. Accordingly, all the appeals are dismissed on
contest.
151. However, there shall be no order as to costs.
152. Before we part with, we must record a disturbing
feature appearing in the Trial Court judgement. In the F.I.R., it
was stated that the entire incident was committed by a riotous
mob under the leadership of one Raj Kishore Sao. Raj Kishore
Sao faced trial along with the appellants. However, the Trial
Court acquitted him, stating, inter alia, that so far as the
involvement of accused Raj Kishore Sao & Panna Lal is
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concerned, the prosecution witnesses have stated in their
deposition that Raj Kishore Sao armed with a gun & Panna Lal
with a bhala were ordering to assault & kill them, and except
this allegation, no other overt act was done by them. The learned
counsel for defence has submitted that Raj Kishore Sao was
Ward Commissioner as well as President of R.S.S. of Ali Nagar
Shakha. It is an admitted fact that prior to this occurrence, there
was an occurrence of demolishing of a Kabragah in which Raj
Kishore Sao was also one of the accused, but the witness has
denied the suggestion of defence that he has been falsely
implicated in this case due to previous enmity. So enmity has
been admitted between accused Raj Kishore Sao & prosecution
party. The learned counsel for defence has submitted that it is
well known to all that there is a wide difference on the point of
religious thought, between R.S.S. & Muslim community. P.W.
14 – Md. Hasim has admitted in para 7 of his cross examination
that “शदलली, लखनउ, अलीगढ और पटना आशद सथानो के मु सलमान
ने ता लोग आए हुए थे ” This version of witness clearly shows that
Muslim leaders were also involved in this case with a view to
make the case as per their desire, and in such circumstance, it is
highly probable that the leader of R.S.S., namely Raj Kishore
Sao has been implicated falsely and thereby none of the
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witnesses have dared to say about any overt act by him except
that Raj Kishore Sao & Panna Lal were ordering to assault &
kill. The accused Raj Kishore Sao has also filed document to
show enmity as previous case was lodged against him prior to
the occurrence, relating to demolishing a grave yard, which is
admitted by the prosecution witnesses. As, per these material
evidence on record as discussed above, I do not find that the
prosecution has falsely implicated Raj Kishore Sao & Panna Lal
in this case.
153. The learned Trial Judge recorded an order of
acquittal of Raj Kishore Sao and Panna Lal, though all the
witnesses stated unequivocally about the presence of the above-
named two persons respectively with a gun and bhala in their
hands and directing other people to assault and kill the members
of Mohammaden community. They were acquitted on the
ground that Raj Kishore Sao was made accused in another case,
relating to taking over forcibly possession of a grave-yard and
there were previous enmity between Raj Kishore Sao and the
witnesses. Secondly, Raj Kishore Sao was a member of RSS and
after the incident of communal riot, many leaders of
Mohammadan Community came to Alinagar from Delhi,
Lucknow, Aligarh, Patna and other places of the country.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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Therefore, Raj Kishore Sao and Panna Lal were falsely made
accused in this case due to political and ideological rivalry. The
learned Trial Judge forgot for the time being that he was trying a
criminal case where there no role of preponderance of
probability is applicable but he recorded an order of acquittal in
favour of Raj Kishore Sao and Panna Lal on the ground that it is
highly probable that the leader of RSS namely, Raj Kishore Sao
has been implicated falsely.
154. We are not amused but ashamed by the decision
when almost all the witnesses stated that Raj Kishore Sao led
the mob to commit the massacre, how was he set at free. We are
not unmindful to note that the impugned judgement was
delivered on 27th July, 2018, i.e., 37 years of the incident.
Political scenario of the country and the State have changed
altogether. At the time of occurrence, the offenders who were
religiously divided and politically polarized were treated not
with the same eyes as of these days. Today religion has become
the basis of politics. People having strong religious base become
political leaders. Probably due to such reason being guided by
the political executive, in spite of having enough evidence,
people like Raj Kishore Sao and Panna Lal were acquitted. The
State did not file any appeal against the order of acquittal of the
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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above-named two persons. The said two persons are also not
before us so that we can re-appreciate the evidence against
them.
155. Very recently, the Hon’ble Supreme Court in the
case of Nagarajan v. State of Tamil Nadu, reported in (2025) 8
SCC 331, held that under Section 401 of the Cr.P.C., the High
Court is not authorised to convert the findings of acquittal into
one of conviction by exercise of revisional jurisdiction. This
salutary principle can be extended to also mean that the High
Court cannot enhance the sentence imposed by a trial court on
conviction in an appeal filed by the accused/convict. Thus, any
appeal filed by the accused seeking setting aside of the
conviction of sentence, the High Court cannot exercise its
revisional powers and while affirming the conviction direct for
enhancement of sentence, when actually appeal could have been
filed by the State, complainant or the victim but not filed. The
Hon’ble Supreme Court further held that even if an opportunity
of hearing is given to such an accused/convict, the High Court
can not exercise its revisional jurisdiction under Section 401
CrPC while exercising its appellate jurisdiction in an appeal
filed by the accused/convict in the High Court. All that the High
Court can do is to set aside the judgment of conviction and
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
113/142
sentence and acquit the accused, or while doing so, order for a
retrial, or in the alternative, while maintaining the conviction,
reduce the sentence. Thus, in an appeal filed only by the
accused/convict, the High Court cannot suo motu exercise its
revisional jurisdiction and enhance the sentence against the
accused while maintaining the conviction.
156. The Hon’ble Supreme Court held as hereinabove,
that in an appeal where Trial Court convicted the appellant
under Section 354 and 448 and acquitted him of charge under
Section 306 of the I.P.C. Order of acquittal was not challenged
by the State. However, upon prima facie appraisal of the Trial
Court’s reasoning, the High Court opined necessity of further
examination of acquittal under Section 306 I.P.C. Resultantly, in
suo motu revision, the High Court dismissed the appeal of the
appellant and convicted him under Sections 306 and 448 of the
I.P.C.
157. In Mahabir & Ors. v. State of Haryana,
reported in 2025 SCC OnLine SC 184, the Hon’ble Supreme
Court in paragraph nos. 39 to 47 held as hereunder: –
“39. This Court in Bindeshwari
Prasad Singh v. State of Bihar (now
Jharkhand) reported in (2002) 6 SCC
650, laid down that there is a limit on the
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
114/142powers of the High Court as a Revisional
Court, prohibiting it from converting a
finding of acquittal into one of conviction.
Para 12 reads thus:-
“12. We have carefully
considered the material on record and we
are satisfied that the High Court was not
justified in reappreciating the evidence on
record and coming to a different
conclusion in a revision preferred by the
informant under Section 401 of the Code
of Criminal Procedure. Sub-section (3) of
Section 401 in terms provides that
nothing in Section 401 shall be deemed to
authorize a High Court to convert a
finding of acquittal into one of conviction.
The aforesaid sub-section, which places a
limitation on the powers of the revisional
court, prohibiting it from converting a
finding of acquittal into one of conviction,
is itself indicative of the nature and extent
of the revisional power conferred by
Section 401 of the Code of Criminal
Procedure. If the High Court could not
convert a finding of acquittal into one of
conviction directly, it could not do so
indirectly by the method of ordering a
retrial. It is well settled by a catena of
decisions of this Court that the High
Court will ordinarily not interfere in
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
115/142revision with an order of acquittal except
in exceptional cases where the interest of
public justice requires interference for the
correction of a manifest illegality or the
prevention of gross miscarriage of justice.
The High Court will not be justified in
interfering with an order of acquittal
merely because the trial court has taken a
wrong view of the law or has erred in
appreciation of evidence. It is neither
possible nor advisable to make an
exhaustive list of circumstances in which
exercise of revisional jurisdiction may be
justified, but decisions of this Court have
laid down the parameters of exercise of
revisional jurisdiction by the High Court
under Section 401 of the Code of
Criminal Procedure in an appeal against
acquittal by a private party. (See D.
Stephens v. Nosibolla [1951 SCC 184
1951 SCC 184: AIR 1951 SC 196 1951
Cri LJ 5101. K. Chinnaswamy Reddy v.
State of A.P. [AIR 1962 SC 1788:1963) 1
Cri L) 8J. Akalu Ahir v. Ramdeo Ram
[(1973) 2 SCC 583: 1973 SCC (Cri) 903),
Pakalapati Narayana Gajapathi Raju v
Bonapalli Peda Appadu ((1975) 4 SCC
477: 1975 SCC (Cri) 543: AIR 1975 SC
1854] and Mahendra Pratap Singh v.
Sarju Singh (AIR 1968 SC 707: 1968 Cri
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
116/142LJ 665].)”
40. This Court in Joseph
Stephen v. Santhanasamy reported in
(2022) 13 SCC 115, laid down that on a
plain reading of sub-section (3) of Section
401 CrPC, it has to be held that sub-
section (3) of Section 401 CrPC
prohibits/bars the High Court to convert
a finding of acquittal into one of
conviction. Para 10 reads thus:-
10. Applying the law laid down
by this Court in the aforesaid decisions
and on a plain reading of sub-section (3)
of Section 401 CrPC, it has to be held
that sub-section (3) of Section 401 CrPC
prohibits/bars the High Court to convert
a finding of acquittal into one of
conviction. Though and as observed
hereinabove, the High Court has
revisional power to examine whether
there is manifest error of law or
procedure, etc. however, after giving its
own findings on the findings recorded by
the court acquitting the accused and after
setting aside the order of acquittal, the
High Court has to remit the matter to the
trial court and/or the first appellate
court, as the case may be.”
41. This Court in Joseph
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
117/142Stephen (supra), holds that first, the High
Court has to pass a judicial order to treat
an application for revision as petition of
appeal. The High Court has to pass a
judicial order because sub-section (5) of
Section 401 CrPC provides that if the
High Court is satisfied that such revision
application was made under the
erroneous belief that no appeal lies
thereto and that it is necessary in the
interests of justice so to do. While treating
the application for revision and to deal
with the same as a petition of appeal, the
High Court has to record the satisfaction
as provided under sub-section (5) of
Section 401 CrPC. Para 14 reads thus:-
14. Now so far as the power to
be exercised by the High Court under
sub-section (5) of Section 401 CrPC,
namely, the High Court may treat the
application for revision as petition of
appeal and deal with the same
accordingly is concerned, firstly the High
Court has to pass a judicial order to treat
the application for revision as petition of
appeal. The High Court has to pass a
judicial order because sub-section (5) of
Section 401 CrPC provides that if the
High Court is satisfied that such revision
application was made under the
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
118/142erroneous belief that no appeal lies
thereto and that it is necessary in the
interests of justice so to do. While treating
with the application for revision as
petition of appeal and deal with the same
accordingly, the High Court has to record
the satisfaction as provided under sub-
section (5) of Section 401 CrPC.
Therefore, where under the CrPC an
appeal lies, but an application for
revision has been made to the High Court
by any person, the High Court has
jurisdiction to treat the application for
revision as a petition of appeal and deal
with the same accordingly as per sub-
section (5) of Section 401 CrPC, however,
subject to the High Court being satisfied
that such an application was made under
the erroneous belief that no appeal lies
thereto and that it is necessary in the
interests of justice so to do and for that
purpose the High Court has to pass a
judicial order, may be a formal order, to
treat the application for revision as a
petition of appeal and deal with the same
accordingly.”
42. This Court in Ganesha v.
Sharanappa reported in (2014) 1 SCC 87,
in para 11, clarifies that:
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
119/142“… Interference with the order
of acquittal is called for only in
exceptional cases where there is manifest
error of law of procedure resulting into
miscarriage of justice, and, where the
acquittal has been caused by shutting out
evidence which otherwise ought to have
been considered or where material
evidence which clinches the issue has
been overlooked. In such exceptional
cases, the High Court can set aside an
order of acquittal, but it cannot covert it
into one of conviction. The only course
left to the High Court in such exception
cases, is to order retrial.
43. This Court in Santhakumari
v. State of Tamil Nadu reported in (2023)
15 SCC 440, laid down that the order
passed by the High Court is in the teeth of
the provisions of sub-section (2) of
Section 401 of the CrPC as interpreted by
this Court in Manharibhai Muljibhai
Kakadia v. Shaileshbhai Mohanbhai Patel
reported in (2012) 10 SCC 517. Paras 5
and 6 respectively read thus:-
“5. Having considered the
submissions, since it is not in dispute that
the proposed accused were not served
notice of the revision proceedings, the
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
120/142order passed by the High Court is in the
teeth of the provisions of sub-section (2)
of Section 401 of the Code as interpreted
by this Court in Manharibhai Muljibhai
Kakadia [Manharibhai Muljibhai
Kakadia v. Shaileshbhai Mohanbhai
Patel, (2012) 10 SCC 517: (2013) 1 SCC
(Cri) 218).
6. The decision in Manharibhai
Muljibhai Kakadia [Manharibhai
Muljibhai Kakadia v. Shaileshbhai
Mohanbhai Patel, (2012) 10 SCC 517:
(2013) 1 SCC (Cri) 218] has also been
followed in Bal Manohar Jalan v. Sunil
Paswan [Bal Manohar Jalan v. Sunil
Paswan, (2014) 9 SCC 640 (2014) 5 SCC
(Cri) 256], wherein it was held: (Bal
Manohar Jalan case [Bal Manohar Jalan
v. Sunil Paswan, (2014) 9 SCC 640
(2014) 5 SCC (Cri) 256], SCC p. 644,
para 9)“9. In the present case
challenge is laid to the order dated 4-3-
2009 at the instance of the complainant in
the revision petition before the High
Court and by virtue of Section 401(2) of
the Code. the accused mentioned in the
first information report get the right of
hearing before the Revisional Court
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
121/142
although the impugned order [Sunil
Paswan v. State of Bihar, 2011 SCC
OnLine Pat 600] therein was passed
without their participation. The appellant
who is an accused person cannot be
deprived of hearing on the face of the
express provision contained in Section
401(2) of the Code and on this ground,
the impugned order [Sunil Paswan v.
State of Bihar, 2011 SCC OnLine Pat
600] of the High Court is liable to be set
aside and the matter has to be remitted.””
44. The decision in
Manharibhai Muljibhai (supra) was
referred to and relied upon in Bal
Manohar Jalan v. Sunil Paswan reported
in (2014) 9 SCC 640, wherein it was inter
alia, held that “The appellant who is an
accused person cannot be deprived of
hearing on the face of the express
provision contained in Section 401(2) of
the Code and on this ground, the
impugned order of the High Court is
liable to be set aside…”.
45. This Court in Nandini
Satpathy v. P.L. Dani reported in (1978) 2
SCC 424 held that the right to consult an
advocate of choice shall not be denied to
any person who is arrested. This does not
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
122/142
mean that persons who are not under
arrest or custody can be denied such
right. The spirit and ethos of Article 22(1)
is that it is fundamental to the rule of law
that the service of a lawyer shall be
available for consultation to the accused
person under circumstances of near
custodial interrogation. Moreover, the
right against self-incrimination is best
practiced & best promoted by conceding
to the accused, the right to consult a legal
practitioner of his choice. Lawyers’
presence is a constitutional claim in some
circumstances of our country, and in the
context of Article 20(3), is an assurance
of awareness and observance of the right
to silence.
46. Thus, it is as clear as a
noonday that the High Court committed
an egregious error in reversing the
acquittal and passing an order of
conviction in exercise of its revisional
jurisdiction and that too without affording
any opportunity of hearing to the
appellants herein.
47. We could have closed this
matter at this stage; however, we would
like to explain the position of law in so
far as the applicability of sub section (5)
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
123/142
to Section 401 of the CrPC read with the
provision to sub section 372 of the CrPC
is concerned.”
158. In this judgement, the Hon’ble Supreme Court
further discussed the cumulative effect of Section 401 and the
proviso to Section 372 of the Cr.P.C. where the right to appeal
is extended even to the victims. In the instant case, the victim
would have filed an appeal, challenging acquittal against Raj
Kishore Sao and Panna Lal, but when such steps were also not
taken by the victim or the informant, this Court does not have
any power to hold otherwise against the appellants.
159. Acceptance of the above ratio laid down by the
Hon’ble Supreme Court means only that even against an order
that suffers from material perversity, the High Court or the
Division Bench of the High Court would not have any power
even to direct the acquitted persons to come forward by
issuing a notice to plead as to whether the impugned
judgement shall not be set aside so far as the above-named
persons are concerned on the ground of illegality and
perversity.
160. In Nadir Khan v. the State (Delhi
Administration) reported in (1975) 2 SCC 406, the Hon’ble
Supreme Court held that the High Court is not required to act
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
124/142
in revision merely through a conduit application at the
instance of an aggrieved party. The High Court, as an effective
instrument for administration of criminal-justice, keeps a
constant vigil and wherever it finds that justice has suffered, it
takes upon itself as its bounded duty to suo motu act where
there is flagrant abuse of the law. The character of the offence
and the nature of disposal of a particular case by the
subordinate court prompt remedial action on the part of the
High Court for the ultimate social good of the community,
even though the State may be slow or silent in preferring an
appeal provided for under the new Code. The High Court in a
given case of public importance e.g. is now too familiar cases
of food adulteration reacts to public concern over the problem
and may act suo motu on perusal of newspaper reports
disclosing imposition of grossly inadequate sentence upon
such offenders. Paragraph 3 and 4 of the above-mentioned
judgement are relevant and are quoted below: –
“3. The question raised by the
learned counsel in this application is, that
the High Court, in revision under Section
401 CrPC, has no jurisdiction or power
to enhance the sentence in the absence of
an appeal against the inadequacy of
sentence under Section 377.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
125/142
4. It is well known and has been
ever recognised that the High Court is not
required to act in revision merely through
a conduit application at the instance of
an aggrieved party. The High Court, as
an effective instrument for administration
of criminal justice, keeps a constant vigil
and wherever it finds that justice has
suffered, it takes upon itself as its
bounden duty to suo motu act where there
is flagrant abuse of the law. The
character of the offence and the nature of
disposal of a particular case by the
subordinate court prompt remedial action
on the part of the High Court for the
ultimate social good of the community,
even though the State may be slow or
silent in preferring an appeal provided
for under the new Code. The High Court
in a given case of public importance e.g.
in now too familiar cases of food
adulteration, reacts to public concern
over the problem and may act suo motu
on perusal of newspaper reports
disclosing imposition of grossly
inadequate sentence upon such offenders.
This position was true and extant in the
old Code of 1898 and this salutary power
has not been denied by Parliament under
the new Code by rearrangement of the
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
126/142sections. It is true the new Code has
expressly given a right to the State under
Section 377 CrPC to appeal against
inadequacy of sentence which was not
there under the old Code. That however
does not exclude revisional jurisdiction of
the High Court to act suo motu for
enhancement of sentence in appropriate
cases. What is an appropriate case has to
be left to the discretion of the High Court.
This Court will be slow to interfere with
exercise of such discretion under Article
136 of the Constitution.”
161. In Sahab Singh & Ors. v. State of Haryana,
reported in (1990) 2 SCC 385, the appellants were convicted
by the Additional Sessions Judge on three counts and
sentenced to rigorous imprisonment for one year under
Section 148 IPC; for six months under Section 323/149 I.P.C.
and imprisonment for life and fine of Rs. 200 under Section
302/149 I.P.C. The appellants preferred an appeal against the
order of conviction and sentence passed by the Trial Court. No
appeal was filed by the Sate against the sentence awarded by
the Trial Judge on the ground of its inadequacy. The High
Court while discussing their appeal clarified that their
conviction was on six counts and altered the fine awarded
under Section 30/149 I.P.C. from Rs. 200 to Rs. 5,000/- in
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
127/142
respect of each appellant per count i.e., Rs. 30,000/- per
appellant. No notice of enhancement of fine or opportunity of
hearing on question of inadequacy of sentence was given to
the appellant.
162. Being aggrieved, the appellant moved the
Hon’ble Supreme Court. In paragraph nos. 4 and 5, the
Hon’ble Supreme Court held as hereunder: –
“4. Section 374 of the Code of
Criminal Procedure (‘the Code’
hereinafter) provides for appeals from
conviction by a Sessions Judge or an
Additional Sessions Judge to the High
Court. Section 377 entitles the State
Government to direct the Public
Prosecutor to present an appeal to the
High Court against the sentence on the
ground of its inadequacy. Sub-section (3)
of Section 377 says that when an appeal
has been filed against the sentence on the
ground of its inadequacy, the High Court
shall not enhance the sentence except
after giving to the accused a reasonable
opportunity of showing cause against
such enhancement and while showing
cause the accused may plead for his
acquittal or for the reduction of the
sentence. Admittedly no appeal was
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
128/142preferred by the State Government
against the sentence imposed by the High
Court on the conviction of the appellants
under Section 302/149, IPC. Section 378
provides for an appeal against an order
of acquittal. Section 386 enumerates the
powers of the appellate court. The first
proviso to that section states that the
sentence shall not be enhanced unless the
accused has had an opportunity of
showing cause against such
enhancement. Section 397 confers
revisional powers on the High Court as
well as the Sessions Court. It, inter alia,
provides that the High Court may call for
and examine the record of any proceeding
before any inferior criminal court situate
within its jurisdiction for the purposes of
satisfying itself as to the correctness,
legality or propriety of any finding,
sentence or order recorded or passed and
as to the regularity of any proceedings of
any inferior court. Section 401 further
provides that in the case of any
proceedings, the record of which has been
called for by itself or which otherwise
comes to its knowledge, the High Court
may, in its discretion, exercise any of the
powers conferred on a court of appeal by
Sections 386, 389, 390 and 391 of the
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
129/142Code. Sub-section (2) of Section 401
provides that no order under this section
shall be made to the prejudice of the
accused or other person unless he has
had an opportunity of being heard either
personally or by pleader in his own
defence. Sub-section (4) next provides
that where under this Code an appeal lies
and no appeal is brought, no proceeding
by way of revision shall be entertained at
the instance of the party who could have
appealed. It is clear from a conjoint
reading of Sections 377, 386, 397 and
401 that if the State Government is
aggrieved about the inadequacy of the
sentence it can prefer an appeal under
Section 377(1) of the Code. The failure on
the part of the State Government to prefer
an appeal does not, however, preclude the
High Court from exercising suo motu
power of revision under Section 397 read
with Section 401 of the Code since the
High Court itself is empowered to call for
the record of the proceeding of any court
subordinate to it. Sub-section (4) of
Section 401 operates as a bar to the party
which has a right to prefer an appeal but
has failed to do so but that sub-section
cannot stand in the way of the High Court
exercising revisional jurisdiction suo
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
130/142motu. But before the High Court exercises
its suo motu revisional jurisdiction to
enhance the sentence, it is imperative that
the convict is put on notice and is given
an opportunity of being heard on the
question of sentence either in person or
through his advocate. The revisional
jurisdiction cannot be exercised to the
prejudice of the convict without putting
him on guard that it is proposed to
enhance the sentence imposed by the trial
court.
5. Now, in the present case the
appeal was filed under Section 374(2) of
the Code by the convicts against the order
passed by the Additional Sessions Judge.
No appeal was filed by the State under
Section 377(1) of the Code against the
sentence awarded by the trial court for
the offence under Section 302/149, IPC
on the ground of its inadequacy. Nor did
the High Court exercise suo motu
revisional powers under Section 397 read
with Section 401 of the Code. If the High
Court was minded to enhance the
sentence the proper course was to
exercise suo motu powers under Section
397 read with Section 401 of the Code by
issuing notice of enhancement and
hearing the convicts on the question of
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
131/142inadequacy of sentence. Without
following such procedure it was not open
to the High Court in the appeal filed by
the convicts to enhance the sentence by
enhancing the fine. The High Court
clearly acted without jurisdiction. For the
above reasons we are clearly of the
opinion that the appeal must succeed.”
163. In Popular Muthiah v. State, reported in
(2006) 7 SCC 296, the Hon’ble Supreme Court was pleased to
consider the scope and applicability of Section 482, 374(2),
386 and 397. It was held by the Hon’ble Supreme Court that
while exercising appellate jurisdiction, High Court can suo
motu exercise its inherent power, can direct further
investigation of the case against persons who were not charge-
sheeted and were not accused at the stage of trial but whom
High Court felt should have been included in the challan. But
High Court should exercise the inherent jurisdiction sparingly
and only after applying its mind to the material on record so
as to be satisfied about existence of a strong prima facie case
against such persons and shall also whether any useful
purpose is served by issuing such directions particularly after
a long lapse of time. Moreover, having regard to facts and
circumstances of the present case, High Court should also
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
132/142
give an opportunity of hearing to those persons before issuing
the directions.
164. Thus, according to Apex Court, the High Court
acts as an ex debito justitiae to do real and substantial justice.
So, while exercising appellate jurisdiction, the High Court has
inherent power to pass any order for ends of justice under the
facts and circumstances of the case.
165. We have carefully perused the judgement
passed by the Hon’ble Supreme Court in Nagarajan (supra)
and Mahabir & Ors. (supra). In both the judgments, the
above decisions of the Co-ordinate Benches were not
considered.
166. In National Insurance Co. Ltd. v. Pranay
Sethi & Ors., reported in (2017) 16 SCC 680, a Five Judges
Bench of the Hon’ble Supreme Court held in paragraph nos.
16 to 21 as hereunder: –
“16. In State of Bihar v. Kalika
Kuer [State of Bihar v. Kalika Kuer,
(2003) 5 SCC 448] , it has been held :
(SCC p. 454, para 10)
“10. … an earlier decision may
seem to be incorrect to a Bench of a
coordinate jurisdiction considering the
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
133/142question later, on the ground that a
possible aspect of the matter was not
considered or not raised before the court
or more aspects should have been gone
into by the court deciding the matter
earlier but it would not be a reason to say
that the decision was rendered per
incuriam and liable to be ignored. The
earlier judgment may seem to be not
correct yet it will have the binding effect
on the later Bench of coordinate
jurisdiction. …”
The Court has further ruled :
(SCC p. 454, para 10)
“10. … Easy course of saying
that earlier decision was rendered per
incuriam is not permissible and the
matter will have to be resolved only in
two ways — either to follow the earlier
decision or refer the matter to a larger
Bench to examine the issue, in case it is
felt that earlier decision is not correct on
merits.”
17. In G.L. Batra v. State of
Haryana [G.L. Batra v. State of Haryana,
(2014) 13 SCC 759 : (2015) 3 SCC (L&S)
575] , the Court has accepted the said
principle on the basis of judgments of this
Court rendered in Union of
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
134/142
India v. Godfrey Philips India Ltd. [Union
of India v. Godfrey Philips India Ltd.,
(1985) 4 SCC 369 : 1986 SCC (Tax)
11] , Sundarjas Kanyalal
Bhatija v. Collector, Thane [Sundarjas
Kanyalal Bhatija v. Collector, Thane,
(1989) 3 SCC 396] and Tribhovandas
Purshottamdas Thakkar v. Ratilal Motilal
Patel [Tribhovandas Purshottamdas
Thakkar v. Ratilal Motilal Patel, AIR
1968 SC 372] . It may be noted here that
the Constitution Bench in Madras Bar
Assn. v. Union of India [Madras Bar
Assn. v. Union of India, (2015) 8 SCC
583] has clearly stated that the prior
Constitution Bench judgment in Union of
India v. Madras Bar Assn. [Union of
India v. Madras Bar Assn., (2010) 11 SCC
1] is a binding precedent. Be it clarified,
the issues that were put to rest in the
earlier Constitution Bench judgment were
treated as precedents by the later
Constitution Bench.
18. In this regard, we may refer
to a passage from Jaisri
Sahu v. Rajdewan Dubey [Jaisri
Sahu v. Rajdewan Dubey, AIR 1962 SC
83] : (AIR p. 88, para 10)
“10. Law will be bereft of all its
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
135/142
utility if it should be thrown into a state of
uncertainty by reason of conflicting
decisions, and it is therefore desirable
that in case of difference of opinion, the
question should be authoritatively settled.
It sometimes happens that an earlier
decision [Dasrath Singh v. Damri Singh,
1925 SCC OnLine Pat 242 : AIR 1927
Pat 219] given by a Bench is not brought
to the notice of a Bench [Ram Asre
Singh v. Ambica Lal, AIR 1929 Pat 216]
hearing the same question, and a
contrary decision is given without
reference to the earlier decision. The
question has also been discussed as to the
correct procedure to be followed when
two such conflicting decisions are placed
before a later Bench. The practice in the
Patna High Court appears to be that in
those cases, the earlier decision is
followed and not the later. In England the
practice is, as noticed in the judgment
in Gundavarupu Seshamma v. Kornepati
Venkata Narasimharao [Gundavarupu
Seshamma v. Kornepati Venkata
Narasimharao, 1939 SCC OnLine Mad
367 : ILR 1940 Mad 454] that the
decision of a Court of Appeal is
considered as a general rule to be
binding on it. There are exceptions to it,
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
136/142
and one of them is thus stated
in Halsbury’s Laws of England, 3rd Edn.,
Vol. 22, Para 1687, pp. 799-800:
‘1687. … the court is not bound
to follow a decision of its own if given per
incuriam. A decision is given per
incuriam when the court has acted in
ignorance of a previous decision of its
own or of a court of a coordinate
jurisdiction which covered the case before
it, or when it has acted in ignorance of a
decision of the House of Lords. In the
former case it must decide which decision
to follow, and in the latter it is bound by
the decision of the House of Lords.’In Katragadda
Virayya v. Katragadda Venkata
Subbayya [Katragadda
Virayya v. Katragadda Venkata Subbayya,
1955 SCC OnLine AP 34 : AIR 1955 AP
215] it has been held by the Andhra High
Court that under the circumstances
aforesaid the Bench is free to adopt that
view which is in accordance with justice
and legal principles after taking into
consideration the views expressed in the
two conflicting Benches, vide also the
decision of the Nagpur High Court
in D.D. Bilimoria v. Central Bank of
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
137/142India [D.D. Bilimoria v. Central Bank of
India, 1943 SCC OnLine MP 97 : AIR
1943 Nag 340] . The better course would
be for the Bench hearing the case to refer
the matter to a Full Bench in view of the
conflicting authorities without taking
upon itself to decide whether it should
follow the one Bench decision or the
other. We have no doubt that when such
situations arise, the Bench hearing cases
would refer the matter for the decision of
a Full Court.”
19. Though the aforesaid was
articulated in the context of the High
Court, yet this Court has been following
the same as is revealed from the
aforestated pronouncements including
that of the Constitution Bench and,
therefore, we entirely agree with the said
view because it is the precise warrant of
respecting a precedent which is the
fundamental norm of judicial discipline.
20. In the context, we may
fruitfully note what has been stated
in Pradip Chandra Parija v. Pramod
Chandra Patnaik [Pradip Chandra
Parija v. Pramod Chandra Patnaik,
(2002) 1 SCC 1] . In the said case, the
Constitution Bench was dealing with a
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
138/142situation where the two-Judge Bench
[Pradip Chandra Parija v. Pramod
Chandra Patnaik, Civil Appeal No. 791 of
1993, order dated 24-10-1996 (SC)]
disagreeing with the three-Judge Bench
[Nityananda Kar v. State of Orissa, 1991
Supp (2) SCC 516 : 1992 SCC (L&S)
177] decision directed the matter to be
placed before a larger Bench of five
Judges of this Court. In that scenario, the
Constitution Bench stated : (SCC p. 4,
para 6)“6. … In our view, judicial
discipline and propriety demands that a
Bench of two learned Judges should
follow a decision of a Bench of three
learned Judges. But if a Bench of two
learned Judges concludes that an earlier
judgment of three learned Judges is so
very incorrect that in no circumstances
can it be followed, the proper course for
it to adopt is to refer the matter before it
to a Bench of three learned Judges setting
out, as has been done here, the reasons
why it could not agree with the earlier
judgment. …”
21. In Chandra Prakash v. State
of U.P. [Chandra Prakash v. State of U.P.,
(2002) 4 SCC 234 : 2002 SCC (L&S)
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
139/142
496] , another Constitution Bench
dealing with the concept of precedents
stated thus : (SCC p. 245, para 22)
“22. … The doctrine of binding
precedent is of utmost importance in the
administration of our judicial system. It
promotes certainty and consistency in
judicial decisions. Judicial consistency
promotes confidence in the system,
therefore, there is this need for
consistency in the enunciation of legal
principles in the decisions of this Court. It
is in the above context, this Court
in Raghubir Singh [Union of
India v. Raghubir Singh, (1989) 2 SCC
754] held that a pronouncement of law by
a Division Bench of this Court is binding
on a Division Bench of the same or
smaller number of Judges. …”
Be it noted, Chandra
Prakash [Chandra Prakash v. State of
U.P., (2002) 4 SCC 234 : 2002 SCC
(L&S) 496] concurred with the view
expressed in Raghubir Singh [Union of
India v. Raghubir Singh, (1989) 2 SCC
754] and Pradip Chandra Parija [Pradip
Chandra Parija v. Pramod Chandra
Patnaik, (2002) 1 SCC 1].”
167. Again in paragraph 28 of the aforesaid
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
140/142
judgement, the Hon’ble Supreme Court held as follows: –
“28. In this context, we may
also refer to Sundeep Kumar
Bafna v. State of Maharashtra [Sundeep
Kumar Bafna v. State of Maharashtra,
(2014) 16 SCC 623 : (2015) 3 SCC (Cri)
558] which correctly lays down the
principle that discipline demanded by a
precedent or the disqualification or
diminution of a decision on the
application of the per incuriam rule is of
great importance, since without it,
certainty of law, consistency of rulings
and comity of courts would become a
costly casualty. A decision or judgment
can be per incuriam any provision in a
statute, rule or regulation, which was not
brought to the notice of the court. A
decision or judgment can also be per
incuriam if it is not possible to reconcile
its ratio with that of a previously
pronounced judgment of a co-equal or
larger Bench. There can be no scintilla of
doubt that an earlier decision of co-equal
Bench binds the Bench of same strength.
Though the judgment in Rajesh
case [Rajesh v. Rajbir Singh, (2013) 9
SCC 54 : (2013) 4 SCC (Civ) 179 : (2013)
3 SCC (Cri) 817 : (2014) 1 SCC (L&S)
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
141/142149] was delivered on a later date, it had
not apprised itself of the law stated
in Reshma Kumari [Reshma
Kumari v. Madan Mohan, (2013) 9 SCC
65 : (2013) 4 SCC (Civ) 191: (2013) 3
SCC (Cri) 826] but had been guided
by Santosh Devi [Santosh Devi v. National
Insurance Co. Ltd., (2012) 6 SCC 421 :
(2012) 3 SCC (Civ) 726 : (2012) 3 SCC
(Cri) 160 : (2012) 2 SCC (L&S) 167] . We
have no hesitation that it is not a binding
precedent on the co-equal Bench.”
168. Thus, we are of the respectful view that in case
of conflicting decisions of the High Court or the Hon’ble
Supreme Court, on the same issue, the earlier precedent shall
prevail, especially when the subsequent decisions were
rendered without considering the earlier decisions.
169. For the reasons stated above, we are of the
view that we are inclined to issue notice to Raj Kishore Sao
and Panna Lal, if they are alive, under Section 401 read with
Section 482 of the Cr.P.C., directing them to appear before us
to show cause as to whether this Court shall not quash the
order of acquittal passed in favour of them by the learned Trial
Judge in Sessions Trial No. 108 of 1983 within a period of
four weeks from the date of this order.
Patna High Court CR. APP (DB) No.1098 of 2018 dt.24-04-2026
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170. The department is directed to issue notice upon
Raj Kishore Sao and Panna Lal through the SHO, Bihar Police
Station, Nalanda at Bihar Sharif.
(Bibek Chaudhuri, J)
Chandra Shekhar Jha, J: I agree.
(Chandra Shekhar Jha, J)
skm/-
AFR/NAFR AFR CAV DATE 15.04.2026 Uploading Date 24.04.2026 Transmission Date 24.04.2026