B.K. Patra, J.
1. The four appellants along with 23 others were prosecuted on charges under Sections 147, 302/149, 436/149 and 380/149 I. P. C. The other 23 accused persons were acquitted of all the charges. Appellants 1, 2 and 3 who were accused Nos. 9, 10 and 11 respectively in the trial court were convicted under Section 147 I. P. C. and sentenced to undergo R. I. for one year each. Appellant No. 4 who was accused No. 21 in the trial Court was convicted under Sections 147 and 436/149. For his conviction under Section 436/149 I. P. C. he was sentenced to undergo R. I. for 5 years and no separate sentence was awarded for his conviction under Section 147 I. P. C. The four appellants were acquitted of all the other charges framed against them.
2. Communal riots took place in Rourkela and its suburbs in March, 1964. The incidents which gave rise to the present proceeding took place on the night of 21st March, 1964 at Biramitrapur which is 20 miles off from Rourkela. Prior to 20th March that year communal disturbances had taken place at Rourkela and hence a peace committee was formed at Biramitrapur on the 20th March, 1964 which was attended by several Hindus and Muslims. A precession was organised by members of both the communities and this procession went round the town raising slogans for communal amity. The procession dispersed after deciding that on the next day there would be a meeting to select volunteers to maintain peace. Accordingly on the next day P. W. 1 Mahammad Ibrahim went to the Labour Union Office where the meeting was to take place and waited there for about 2 hours, but nobody turned up. He returned back home. He saw some persons running helterskelter saying 'Ho gia' 'Ho gia'. On being questioned these people did not say anything to him. He also found that all shops were, closed in the market.
On the evening of that day i. e. 21-3-64 he found some non-Muslims moving on the road being armed and he became suspicious and went towards the Thana to ascertain from the S. I. of Police as to what steps were being taken to protect the lives and properties of the Muslims. He found the S. I. at the Post Office and learnt from him that military force was expected to arrive at Biramitrapur at about 9 A. M. He came back home and narrated the incident to his family members and neighbours. Then about 30 to 40 Muslims of the neighbourhood assembled in his house awaiting arrival of the military force.
At about 10 P.M. he saw Nagar Seth (since acquitted) going to the crossing in front of his house and asking people to come out, to loot and set fire to the Muslim houses and to kill them. Accused Banshi Tewari (since acquitted) blew a whistle and about 100 to 200 persons assembled there. They shouted slogans to kill, loot and set fire to the houses of the Muslims. The members of the mob were armed with deadly weapons such as falsias, lathis etc.
The mob first moved along the Gandhi Road and then came back towards P. W. 1's house where thev looted and set fire to the house of P. W. 1 and those of Walli Mahammad and Ushman. The Muslims therefore ran away to places of safety and while so running away, P. W. 1's nephew one Soef (P. W. 2) was shot by an arrow and was injured. One Khalil was struck on the head by iron rod by accused Ramji (since acquitted) and he fell down on the ground and was discovered dead the nest morning. Three other incidents in different localities of the town took place thereafter, but it is not necessary to make a detailed reference to the same, so far as the present appellants are concerned because none of the prosecution witnesses has spoken about the presence of the appellants at those places, although it has been proved that the mob set fire to several houses of Muslims at those three places.
The military force along with a Magistrate arrived at Biramitrapur at about 1 A. M. that night and order was restored. On his own information the S. I. (P. W. 25) drew up the F. I. R. (Ex. 7) and took up the investigation. The dead body of Khalil was discovered on the following morning in front of the house of Walli Mahammad. Inquest was held over the dead body and the injured persons were sent up for medical examination. After completion of necessary investigation, charge sheet was submitted against 27 accused persons on charges referred to above and they were put on trial with the result already indicated,
3. 26 witnesses were examined in support of the prosecution case, but so far as these appellants are concerned the witnesses who deposed against them are only P. Ws. 9, 10 and 11. The evidence of P. W. 1 is relevant only so far as appellant No. 4 Mukunda Singh is concerned because P. W. 1 does not depose anything against the three other appellants, P. Ws. 9, 10 and 11 are all Muslims and arc residents of Gandhi Road. (After narrating the prosecution evidence his Lordship proceeded.)
4. All the 4 appellants pleaded not guilty to the charges framed against them and denied having been present in the mob either at Gandhi Road or near the house of P, W. 1. The learned Sessions Judge discussed in detail the evidence available against the accused persons and found that excepting against the 4 appellants there is no sufficient corroborations to the testimony given by the witnesses against the other accused persons and acquitted them. Regarding the four appellants he believed the evidence of P. Ws. 9, 10 and 11 that on Gandhi Road the four appellants were in the mob which was guilty of rioting and in addition he relied on the evidence of P. W. 1 that the fourth appellant Mukund Singh was a member of the unlawful Assembly which set fire to P. W. 1's house. He therefore convicted and sentenced them as stated above.
5. The finding of the learned trial court that a communal riot broke out at Biramitrapur on the night of 21st March, 1964 in consequence of which several houses belonging to the Muslims were burnt is not challenged before me. It is also not seriously disputed and there is very satisfactory evidence on record that all these acts had been done by a frenzied mob, whose object was to burn and loot the houses of Muslim inhabitants of the locality. Mr. L. Rath, the learned Advocate appearing for the appellants however assails the finding of the learned Sessions Judge regarding the presence of the four appellants in the mob on the ground that all the witnesses, who have deposed against them are Muslims. It is contended that when all these events took place openly it should have been possible for the prosecution to examine some disinterested non-Muslims of the area. I am unable to accept this contention. However, unfortunate it may be, and whatever may be the genesis for the trouble it is an admitted fact that communal riots between Muslims and non-Muslims did break out in the area in question in March, 1964. What has happened at Bira-mitrapur on the night of 21st March, 1964, is similar in nature to incidents that took place in the neighbouring area at about that time. It is therefore idle to expect that non-Muslims would be coming forward to depose about the incident. In the circumstances therefore it would be unreasonable to contend that the evidence given by the witnesses should be discarded only on the ground that the persons who gave such evidence belong to one particular community and are as such partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would lead to failure of justice. True it is that when the evidence is of this nature, the courts have to very carefully weigh such evidence with a view to ensure that taking advantage of the situation innocent persons are not falsely implicated. In fact I find that the learned Sessions Judge had this aspect very much in his mind because wherever he found that there was no sufficient corroboration of the evidence given by a witness against an accused, the did not act on such evidence, but insisted on corroboration. So far as the four appellants are concerned, their presence in the crowd had been spoken to by at least 3 witnesses P. Ws. 9, 10 and 11. It has not been shown that any of them had any particular motive to single out these appellants and falsely implicate them. If that would have been the desire evidence could have been multiplied against the accused Ramje, who it is alleged had hit Khalil by an iron rod and caused his death. There are several other accused persons, who were alleged to have taken a more militant attitude against Muslims, but here again there is no sufficient corroboration to the evidence given against those accused with the result that they were acquitted. Having regard therefore to these circumstances and also to the fact that the appellants as also many of the other accused persons are residents of Biramitra-pur who were known to the prosecution witnesses from before, and as such there was no difficulty about their identification, I see no reason to discard the testimony of P. Ws. 9, 10 and 11 that all the four appellants were in the mob.
6. There is some evidence to show that Major Nair who headed the armed force which came to Biramitrapur on the night of occurrence had recorded the statements of some persons regarding the incidents. The defence called upon the prosecution to produce those statements. But the prosecution filed an affidavit to the effect that they were not in possession of any statements which might have been recorded by the army authorities. On being directed by the court the prosecution furnished the address of Major Nair and he was summoned to that address, but his whereabouts could not be found. The defence was given an opportunity to produce secondary evidence which however they did not. It is contended by the learned Advocate for the appellants that due to non-availability of the statements, the accused persons were seriously prejudiced and therefore their conviction should be set aside. It is no doubt a legitimate right of the accused persons to defend themselves by proving, if they can that the prosecution witnesses had made different statements on previous occasions. If the prosecution is in possession of these statements and does not make them available to the accused, this precious right is taken away from the accused and they are handicapped in their defence. It is immaterial for their purpose whether this unfortunate result accrues on account of any dishonest motive, or sheer negligence on the part of the prosecution. But such grievance can be made by the defence only if the statements in question are in possession of the prosecution. Where they are in possession of a third party it is for the accused to summon them from that person and if the statements are not secured, no blame can be attached to the prosecution.
If the army authorities in this case have recorded the statements of any persons, it is at their own instance and has nothing to do with the investigation which the police had made in this case. No doubt by the court's orders, the prosecution furnished to the accused the address of Major Nair. That is only by way of helping the defence and not because any duty lay on the prosecution to secure the statements. If Major Nair was not found at the address furnished by the prosecution, it was open to the accused to make independent encruiries about the whereabouts of Major Nair and to summon him to appear in court and if it became necessary the defence could have asked for necessary adjournment of the trial. In these circumstances therefore it would be unjust to penalise the prosecution for the non-availability of this witness. That apart there is no evidence to show that Major Nair recorded the statements of P. Ws. 9, 10 and 11 who are the only witnesses who have deposed against the first three appellants. It is elicited only from P. W. 1 that the army authorities had recorded his statement. Hence if at all the defence can make a legitimate grievance about the non-availability of the statements recorded by the army authorities, its complaint can be confined only to the evidence of P. W. 1 and not to those of P. Ws. 9, 10 and 11.
7. The most important contention put forward on behalf of the appellants is that even assuming that the appellants were found in the mob which indulged in acts of arson and loot, still in the absence of any evidence to show that these appellants have done any overt act it cannot be said that they shared the common object of the unlawful assembly and there is no evidence in this case that any of the appellants did any overt act on the night of 21st March.
In support of this contention reliance is placed on the Supreme Court decision in Baladin v. State of U. P., AIR 1956 SC 181 and on a recent Division Bench decision of this Court in Harun Tirkey v. State, 34 Cut LT 215: 1968 Cri LJ 1251. Relying on the Supreme Court decision referred to above Ray, J. speaking for the Division Bench in Harun Tirkey's case 34 Cut LT 215: (1968 Cri LJ 1251) observed that mere presence in an assembly does not make 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 Indian Penal Code and that it Is necessary for the prosecution to lead evidence pointing to the conclusion that all the appellants had done some overt act in prosecution of the common object of the unlawful assembly. The implication of the observation made by the Supreme Court in Baladin's case AIR 1956 SC 181 came up for consideration in a subsequent decision of the Supreme Court in Masalti v. State of U. P., AIR 1965 SC 202 and their Lordships held that the observation in Baladin's case AIR 1956 SC 181 must be read in the context of the special facts of that case and cannot be treated as laying down a general proposition of law that commission of an overt act by every person who is alleged to be a member of the unlawful assembly must in all cases be proved. This is what their Lordships say:--
'What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141, I. P. C. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly or continues in it is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin AIR 1956 SC 181 assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of Baladin, AIR 1956 SC 181 must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law such as Mr. Sawhney suggests.'
8. It therefore follows that while the possibility of innocent persons out of sheer curiousity joining an unlawful assembly cannot be ruled out, and in that view of the matter every person found in such an assembly cannot ipso facto be treated as one sharing the object of the assembly, it also follows that in order to constitute a person a member of the unlawful assembly it is not necessary that he should have done any overt act in pursuance of the common object. Every case has to be judged on its own merit. The only thing that is necessary to find out is whether the facts and circumstances of the case warant a conclusion that the person concerned shared the common object of the, unlawful assembly. In judging this it is well to remember that a common object is different from a common intention in that it docs not require prior concert and a common meeting of minds before the attack, and an unlawful object can develop after the people get there. It is enough that each has the same object in view and that their number is five or more and that they act as an assembly to achieve that object.
9. It is in the light of these principles that the facts of the case ought to be scrutinised. It must have been a well known fact in Biramitrapur on 21st March that communal riots had broken out at Rourkela and near about places. In Biramitrapur itself a procession had been taken out on the previous day consisting of members of both the communities and efforts were made to preserve communal harmony. Suddenly on the night of 21st March people armed with lathies, falsias, and other deadly weapons collected themselves shouting 'Bajrang Bali Ki Joy' and according to P. W. 11 the crowd also shouted that Muslims should be killed. There is evidence of P. Ws. 9 and 10 that these four appellants were at the head of the mob. According to P. W. 10 all the persons in the mob were armed with deadly weapons and P. W. 11 mentions the weapons, each of the appellants held.
In view of this evidence, it is idle to contend that the appellants joined the crowdas mere spectators out of curiosity and thatthey did not share the common object ofthe assembly to loot and burn the housesof Muslims in the locality. All the appellants have therefore been rightly convicted Under Section 147 I. P. C. v
10. So far as the fourth appellant Mukund Singh is concerned he has also been convicted Under Section 436/149 I. P. C. on the allegation that he was in the mob which set fire to the house of P. W. 1 and others. The only witness who speaks about appellant No. 4 being in the mob at that time is P. W. 1 himself. P. W. 1 has also named some other accused being in the crowd at the time but as the evidence against them has not been corroborated, the learned Trial Judge did not consider it safe to act only on the testimony of P. W. 1. The case of appellant No. 4 however stands on a different footing. P. Ws. 9, 10, and 11 have deposed that he was at the head of the mob when it was on the Gandhi Road. From the Gandhi Road the mob proceeded towards P. W. 1's house and it is there again that P. W. 1 saw the appellant No. 4 in the mob which set fire to his house. The learned Sessions Judge was therefore right in accepting the evidence of P. W. 1 regarding the presence of appellant No. 4 in the mob when his house was burnt. As such appellant No. 4's conviction Under Section 436/149 is well founded. Regarding the sentence, however, I feel that it would meet the ends of justice if it is reduced to a period of 3 years. The appellant no. 4 will undergo this sentence concurrently with the sentence imposed on him for the conviction under Section 147, I. P. C.
11. Subject to the modification in the sentence on appellant No. 4 for his conviction under Section 436/149, I. P. C., the appeal is dismissed.