N.L.TIBREWAL, J. - (1.) ALL these bail applications under Section 439 Cr.P.C, may be conveniently disposed of by a common order, as they arise from Criminal Case FIR No. 107/93, Police Station, Mundana, District Kota.
(2.) THE facts of the case are shocking. A strong mob of 400 - 500 persons of Gujar community, armed with deadly weapons, made a concentrated attack on unarmed shepherd 'Rebaris', who were camping in the jungle of Dolia - -Chandbari to graze their cattle. The incident took place in the day light between 12.00 - 1.00 p.m. on 14.8.1993, in which 9 persons were killed and six persons were seriously injured. It was more shocking as the assailants had assembled with weapons after making a public declaration in the knowledge of police, but the poor shepherds could not be protected, though the police had sufficient time to provide full protection to them and avert the fateful incident. The disturbing part of the entire episode is that Shri Jai Shanker Pandey, in charge, Police Chowki, Borawas, had got the information, in the morning on the day of incident, i.e. 14.8.93 that in a meeting, held in the previous night, the Gujars of village Borawas and near by villages had taken collective decision to forcibly drive the 'Rebaris' and their cattle from the jungle. They had also decided that one person from each Gujar Family would go to the jungle with weapon and participate in the operation. Not only, this the 'above information was conveyed to Station House Officer, Police Station, Mandana and Police Control Room, Kota through V.H.F. The Incharge, Police Chowki and other constables had also seen the people with arms going towards the jungle, where the 'Rebaris' were camping. The Police control Room had received the intimation in time and Circle Officer, Shri Morris Babu, was deputed with a task police force to provide protection to them. The SHO, P.S. Mandana had also started towards the spot with armed police force. Unfortunately, none of them reached the place in time. If they had been even slightly vigilant and sensitive, they could have saved the lives of nine persons, who had died in the incident. An explanation has been brought on record during the investigation that Shri Moris Babu was misguided by the villagers and he, instead of going to the Jungle, where the 'Rebaris' were camping, went to Dharampura -ka -Bandha with police force. This explanation, on its face value, is unconvincing. There were only two possibilities for the inaction of the police. Either the police force did not reach the place in time or they deliberately avoided a conflict with the strong mob and, thus, allowed them to fulfill their design. The learned Advocate -General also expressed his serious concern for the passive role of the police in not providing proper and timely protection to the poor victims. However, he has assured me to write the higher authorities to take action against the erring officers, so that such incident may not recur in future and people may not lose faith in police administration. I hope and trust that the learned Advocate -General will take steps, in this direction and I also expect that the Director -General of Police will get an inquiry conducted bay Senior Police Officer not below the rank of Deputy Inspector -General of Police, as to why Police Officer not below the rank of Deputy Inspector -General of Police, as to why police protection was not provided in time and the erring officer shall be punished properly. The manner, in which the incident had taken place, shows that there was no rule of law. After taking decision in a public meeting, in the previous night, the members of Gujar Community assembled with weapons in the morning and went towards the jungle, where the 'Rebaris' were camping with cattle. All was taking place in the knowledge of every body, including the police. There was a demonstration of might and muscle power publicly, but nobody tried to them. To resume the facts, the report of the incident was made orally by Madan Lal 'Rebari' to the Station House Officer, Mukhpal singh, at 3 P.m., when he reached on the spot, after the incident had taken place. As per the report, the 'Rebaris' had left their village 5 -6 months prior to the incident to graze their sheep and other cattle and they were 200 in all, including women -folk and the children. They had 15000 -20000 cattle -heads with them and, in the morning of the incident, they had established their temporary camp near village Dolia. Most of their adult members had gone in jungle with the cattle to graze them and the ladies and some male members were in 'Dera' (Camp), when the strong mob of Gujars came there and started assaulting all who were available there. They also made gun fires. Eight persons had died on the spot and several persons were injured in the incident. In the report, it was also stated that the assailants took away all the articles, which were available in their 'Dera'. In the report the informant had stated that he could identify the assailants, who had swords and guns and taken away their articles. The report was sent to the Police Station where Crime No. 107/93 was registered under Sections 147, 148, 149 120B, 307, 395 and 390, IPC. During investigation, the statements of male and female members of 'Rebaris', who were present at the time of the incident, were recorded. Most of the assailants, except 5 -6 persons, are not known to them. It is note worthy thy that in their statements, they had categorically stated they were in a position to identify the assailants, if brought before them. The incident had taken place in the broad day light and it must have continued for at least half -an -hour, giving sufficient time to the victims to identify some of the assailants, who came near them and who played prominent role in the incident. The unfortunate part of the investigation is that the Investigating Agency did not hold test identification parade to identify the assailants by the witnesses. On the direction of the Court, the Investigating Officer had appeared in the court and he was asked to give his explanation for not arranging test identification parade. He has submitted his explanation in a sealed cover. I would not like to express any comment on the explanation submitted by him and I would like to send the same to the Director -General of Police, for his perusal. It is true that the evidence of test identification parade is not a substantive evidence and it is a corroborative piece of evidence, but it is more or less well settled by now that identification of accused by the witnesses for the first time in court, without prior test identification parade, may be considered valueless, unless the Court is impressed by a particular witness to rely upon his evidence without such corroborative evidence. An identification parade is more essential in a riot case when eye witnesses did not know the assailants previously. This important aspect was completely ignored by the investigating agency while it did not hold a test identification parade. Presently, in the statement of the eye witnesses, amongst the 'Rebaris', the names of 5 -6 assailants have been stated, who were previously known to some of them. So far as the present applicants are concerned, none of them was known to them previously, as such, they have not been named by the 'Rebaris',
(3.) IN the absence of this important piece of evidence, there remains statement of a sole eye witness, namely, Bhanwar Lal S/o Magna, by caste Gujar, resident of Borawas. This witness, in his police statement, has testified the prosecution story, claiming to be present at the place of incident when the occurrence took place. He has named some of the assailants, who had reached the place of incident with weapons. For this witness, it was seriously contended by the learned Counsel for the applicants denying his statement to the police. It was also contended that the witness belonged to village Borawas and several accused persons also belong to the same village who are of his community, as such, he will not speak against them before the trial Court. This apprehension may be correct and this witness must be under terror and pressure from his community persons not to depose in the Court. However, there is no reason, at present, to say that this witness was not present when the incident took place or that he shall not depose against the accused persons during trial of the case. I also do not agree with the argument of the learned Counsel that because this witness did not specify particular acts of the assailants, who caused injuries to the victims, his evidence was not sufficient to prove the guilt of any of the persons named by him. Learned Counsel have failed to appreciate that the assailants had come on the spot after holding a meeting, with a determination to forcibly drive the 'Rebaris' and their cattle from the jungle and all of them were armed with deadly weapons. Therefore, prima facie, each one, who was present at the time of incident, was a member of unlawful assembly and shared the common object and, thus, was criminally liable for the acts of others also.;