- (1.) These are all connected appeals and arise out of the judgment of the Patna High Court in Criminal Appeals Nos. 219 and 231 of 1981. The prosecution case is as follows: On 25-3-1978 at about 11 A.M. persons of several villages gathered in village Bisharam four miles away from P. S. Dinara in District Rohtas. They were variously armed with rifles, guns, bhalas (spear), lathis etc. and the mob was searching for some persons in the village and the villagers fled in all directions. It is also alleged that the mob set some houses on fire and ransacked them. On receiving information P.W. 8, a Police Officer came there and the mob fled. According to the prosecution in all four persons were killed. Two of them got burnt and the other two were not traced. Therefore, according to the prosecution those two must have died or must have been abducted by the mob. The prosecution examined P.Ws.1 to 12, 14, 16, 18, 22 and 30 as eye-witnesses. After completion of the investigation the charge-sheet was laid. The learned Sessions Judge who tried the case convicted all the appellants under S.364 read with S.149, S.436 read with S.149 and S. 395 and sentenced each of them to undergo 10 years' R.I. and all of them were also convicted under S.302 read with S.149, I.P.C. and each of them was sentenced to imprisonment for life. Ramdular Rai, A-30 was also convicted under S.30 of the Arms Act and sentenced to undergo imprisonment for three months. All the convicted accused preferred two appeals Nos. 219 and 231 of 1981. The State also preferred appeal No. 42 of 1981 against the acquittal of four of the accused. All the three appeals were heard by a Division Bench of the High Court. Both the learned Judges agreed that the State appeal has to be dismissed and accordingly dismissed the same. So far as the convicted accused are concerned, one learned Judge took the view that they should be acquitted but the other learned Judge disagreed. Therefore the appeals were heard by a third learned Judge. He acquitted six of them. He also set aside the conviction under S.395 and sentence of 10 years' R.I. thereunder but confirmed the convictions and sentences of others. The convicted accused have preferred these three appeals against the same common judgment.
(2.) Shri Kohli, learned counsel appearing for the appellants submitted that there was a big mob and on the basis of mere presence of some of them the conviction cannot be sustained. It is also his submission that the third learned Judge who convicted the appellants has applied a mechanical test namely that if two or three witnesses have identified any of the appellants then they are held to be members of the unlawful assembly. The learned counsel also submitted that if the overt acts attributed to some of the accused are completely disbelieved then on the mere presence all the appellants cannot be held constructively liable for the major offences by the application of S. 149, I.P.C.
(3.) We have perused the impugned judgment. The learned Judge has discussed the evidence of all the eye-witnesses and thereafter he has discussed the case against each of the accused and such of those appellants who have been identified by two or more eyewitnesses have been held to be the members of the unlawful assembly. We may observe that so far as the presence of the present appellants are concerned who learned Judges have accepted the prosecution case and after going through the evidence carefully we see no reason to disagree. Therefore the presence of these appellants in the mob is established.;