S. Barman, C.J.
1. All these criminal appeals were heard analogously as they are directed against the same judgment of conviction and sentence dated 9.4.65 passed by Sri B.R. Rao Second Additional Sessions Judge, Sambalpur, in sessions trial No. 99/16 (Sgh) of 1964.
2. All the appellants in these three appeals and some others, 38 accused in all, were charged under Sections 148, 302/149, 328/149, 436/149 and 201/149, Penal Cole in the aforesaid sessions trial. The second Additional sessions Judge acquitted 28 of them and convicted all these ten appellants under Sections 148, 302/149, 326/149, 436/149, and sentenced each of them to undergo R.I. for life under Section 302/149, R.I. for three years on each count under Sections 326/149 and 436/149, and one year each under Section 148, Penal Code and directed the sentences to run concurrently.
3. Criminal Appeal No. 108/65 has been pretender by Herun Tirkey, son of Marqus Tirkey, Criminal Appeal No. 111/65 has been preferred by Haran Tirkey, Samuel Tirkey and Bonod Tirkey, sons of Kusal Maya Tirkey of Jalda (B) Blook and Criminal Appeal No. 112.65 has been prefaced by six persons, viz. Khoka alias Manoranjan Ashnsl, Andhreas Tirkey, Andhu Lohara, Choto angra Oram, Pyara Singh and Bholanath Mukherjee, all belonging to village Jalda.
4. All the three appeals having arisen out of one judgment, the appeals were beard together and shall be disposed of by this common judgment.
5. The facts of the case leading to the prosecution of the appellants were that there were continual riots in the town of Rourkela and its suburbs from 19.3.64 to 21.3.64 resulting in mass murder of Muslim Community, burning of house and looting of properties. On 20.3.64 communal riot broke out in the Muslim bastee of Jalapada, A block, which is situated by the side of Rourkela Bonai road in which some Muslims wore killed, and some injured and some houses ware set on fire. Subsequent to the occurrence the police reached the spot and collected all the surviving Muslim people of the locality at a place under a Mahul tree in an open space in front of the houses of Amir Mian and Aziz of that Muslim bastee on the evening of 20th March 1964. They were assured that arrangements will be made for transporting them under police ground to places of safety and they were asked to a writ arrival of vehicles. To guard against any further unforeseen attack upon these Muslims, the A.S.I. and three constables of Jalada out post along with two A.P.R. constables and a party consisting of one Naik, font constables of 'Orissa Military Police were stationed at the spot Nothing was done during the whole of the night of 20th and for the beat part of 21st morning to evacuate these Muslims who continued to re-main in the open space under the Mahul tree. At about the midday of 21st March, thousands of people all armed with deadly weapons, bows, arrow lathis and guns approached the gathering of Muslime from all sides clamouring for their blood. The police made attempts to stem the tide of assault and the military police in fact fired a few rounds to scare away the attacking mob but it all proved ineffective. On the contrary, the police party was also threatened. At this threat of the mob the police party's sense of duty pave way to a sense of self-projection and they fled to Jalda B Block to save their skin leaving the unarmed Muslims completely at the mercy of the infuriated mob. As was inevitable, the Muslims began to flee seeking places of refuge and some of them entered into the nearby houses of Aziz and Amir for shelter. Thereupon the mob attack. ed the two houses, wrenched off their tin roofs, poured kerosene and petrol inside, and also threw burning rags soaked in Kerosene and petrol. As a result, many Muslims died and many also were injured in course of this mob violence. Subsequently on the arrival of the military in the afternoon of that day, the mob dispersed and disappeared and the injured persons were sent to the is pat General Hospital for treatment. Two of the injured Muslims who had been sent to the hospital, viz., Ibrahim and Hanif died there. The A.S.I. of Jalada outpost (P.W. 1) submitted F.I.R. to the officer-in-charge, Raghunathpali police station, who drew up the formal F.I.R. (Ext. 1/2) and registered P.S. Case No. 38/64 under Section 436/302 which later on was numbered as G.R. Case No. 413/64. The A.S.I. P.W. 1 took up preliminary investigation till the officer-in-charge of Raghunathpalli police station took it over from him and held the inquest over the dead bodies lying about, on 2.18.64 and on the morning of 28.3.64.
6. On the death of aforesaid Hanif in the hospital, Dr. Krishnan, P.W 26 sent a report to the officer-in-charge, Town P.S., Rourkela on 26.8.64 which was forwarded to Raghunathpalli police station upon which F.I.R was drawn up and a case under Section 304, Penal Code was registered as G.R. Case No. 534/61.
7. On 28.8.64 the officer-in-charge of Town, ship police station again sent a report to officer-in-charge, Raghunathpalli police station, reporting the death of the other injured Ibrahim and he thereupon drew up a formal F.R.I. (Ext. 55/8) and started P.S. case No. 164/64 All the afore said three cases were simultaneously investigated and the S.I. of Vigilance (P.W. 13) took charge of the investigation on 1.4.64 and after completing the same submitted charge-sheet against fill these accused persons under Sections 148, 302, 326, 486 and 426 read with Section 149, Penal Code and the S.D.M. who took up the committal proceedings ultimately committed all of them to stand their trial on all these charges.
8. In the aforesaid sessions trial the learned Sessions Judge framed charges under Sections 148, 302, 436, 326 and 201, read with Section 149, Penal Code against all the 39 accused persons including the appellants with reference to the occurrence of 21st March 1964, for rioting with deadly weapons with the common object of killing and injuring Rahim Bux and others and setting fire to the houses and concelling the evidence of the crime.
9. At the trial, the accused persona pleaded not guilty.
10. The learned Sessions Judge acquitted 28 accused persons and convicted ten who have now preferred these three appeals against their conviction under all the aforesaid sections except the one under Sections 201 and 149. Indian Penal Code, as they have been acquitted of this charge.
11. It is in evidence that communal rioting continued foe three days from 19th to 21st March 1964 in Bourke and its suburbs including Malady. It is also in evidence that there was another incident of communal rioting on the 20th March 1964 at Jalada where a number of Muslims were killed. This rioting was suppressed on the arrival of the police who collected all the Muslims left alive at one place and asked them to keep together pending arrangement for procuring vehicles to convey them to places of safety. On the next day. that is 21st, there was recrudescence of the trouble at about noon or thereabout in which this Muslim assemblage became target of the mob fury. The sessions case out of which those aforesaid three appeals arise relates to this occurrence of 21st March 1964. It is further in evidence that as a result of the rioting on the 20th, there were some dead bodies lying about is the area, and before those dead-bodies were removed, there was a second occurrence of the 21st. It was difficult during the investigation of this case to distinguish between the corpses of the 20th and 21st.
12. At the trial of the case, a doubt? arose as to whether the dead bodies which were sent for post-mortem examination were of the persons killed on the 20th or on the 21st. The entire evidence regarding inquest and post-mortem was led on the assumption that all the 19 dead bodies were of the persons killed in the rioting of 21st. This ambiguity remains unsolved, and in that view of the matter, it is difficult to accept the evidence regarding inquest and post mortem examination in relation to those 19 dead bodies as a corroborative place of evidence of the killings on the 21st March 1964. The learned Sessions Judge therefore holds that there is some doubt as to which of the 19 dead bodies were sent for postmortem examination on the 22nd March 1964. and if those bodies were of the persons killed in the occurrence of the 21st.
13. It was contended before the trial Court that there are serious contradictions in the evidence of witnesses and their statements before 1 he investigating officers indicating that there is a Studied development of the prosecution case from stage to stage, and accordingly the testimony of all such witnesses must be discarded. While accepting this contention that there were serious discrepancies and that the projection developed its case from stage to stage, the leavened Sessions Judge repelled the defence contention on the footing that since the occurrence is admitted to have taken place on the 21st, the discrepancy and the development in the prosecution case cannot be given any weight. This view of the learned Sessions Judge, in oar opinion, is not correct. It must always be remembered that in criminal trials when a particular witness or batch of witnesses are shown to have swerved from the path of truth, either by suppression or by concoction, or by embellishment of foots, which are untrue, such evidence must, as a rule, be discarded in absence of any independent and reliable corroboration by aid of which the truth out of the tarnished evidence can be sifted and falsehood distinguished. Case it is found that a witness is lying in part, in absence of any suet test to distinguish the truth from false. hood in the case, the whole testimony becomes discredited and cannot be relied upon tot any purpose whatsoever.
14. Dealing with P.Ws. 3, 7, 9 and 13 the learned Sessions Judge holds:
These discrepancies and contradictions though not minor in nature, are not sufficient to come to the conclusion that the witnesses ate unworthy of ere lit and what they are speaking is inherently improbable. There may be some exaggerations or misstatements of fact by these witnesses due to confusion or otherwise, and these witnesses may not be telling the whole truth. It is not, however, possible that the prosecution evidence is a complete fabrication.
In sub-stance, his finding is that the prosecution-evidence is a partial fabrication. Therefore, it was the bounden duty of the trial Judge is shift grain from the chaff and indicate independent and unimpeachable evidence on record with the. aid of whish such separation was brought about. It is only after that was done, the grain could be acted upon. When discharging this function, it is not open to a Judge to rely on any part of the tainted evidence for any purpose whatsoever. Though this salutary principle was pointedly brought to the notice of the learned Sessions Judge by citation of a decision of the Supreme Court which also he has noted in his judgment, he ignored the some completely. It is not enough, for a Judge to be theoretically aware of a principle without spiriting to make practical application of the same and the learned Sessions Judge seems to have forgotten his, this fundamental function.
15. It was next contended that the test identification parades which were held after consider. able delay should be discarded as futile. The ground for such contention is that the pi rid as were held jointly in respect of both the occurrences 20th and 21st Marsh 1964. This appears to be a fact and the learned Sessions Judge says.
I think the Magistrate should have held Separate parades in respect of each and holding I of joint parades in respect of both is not desirable.
Having expressed this opinion, the learned Session Judge accepted the results of the T.I. parade, which, in my opinion, is entirely erroneous. The results of the T.I., parades should have been discarded from consideration.
16. The conviction of all the ten appellants in these three appeals has been based solely on the evidence of identification by witnesses both in Court and in T.I., parade. Accepting the position that the appellants were present at the place where the mob had congregated, or were found amongst the mob, there has been absolutely no discussion as to whether there is anything in the prosecution evidence to indicate that the appellants had indulged in any overt act from which their participation in the common object of the unlawful assembly could be presumed. The Clemson reported in : 1956CriLJ345 , Baladin v. State of U.P., was specifically brought to the notice of the learned Sessions Judge, which lays down the principle 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, Indian Penal Code. It is necessary for the prosecution to lead evidence pointing to the conclusion that all the appellants had done or been committing some overt act in prosecution of the common object of the unlawful assembly. This decision went on to lay down further that the omnibus evidence 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, etc. has to be scrutinized very closely in order to eliminate all chances of false of mistaken implication.
17. Thus, the learned Sessions Judge was clearly in error in fastening the vicarious liability for offence under Sections 302, 326 and 436, I.P.C. on the appellants merely on the evidence of identification without coming to any finding as to whether they committed any overt act and in absence of such a finding, it really passes one's comprehension as to how, having the decision of the Supreme Court referred to above before him, the learned Sessions Judge failed to appreciate its implication and apply it to the particular case. To sustain the conviction under Section 148 against the appellants, the Court must find that they being aware of the facts which rendered any assembly unlawful, intentionally joined that assembly, and being armed with deadly weapons, used force and violence in presumption of the common object of such assembly. This is quite apparent upon a plain reading of the Sections 142, 146 and 148, I.P.C. Unless all these elements constituting the offence under Section 148, I.P.C. are established in evidence and found as facts by the trial Court a conviction under Section 149 is unthinkable. There is nothing in the forty-four page long judgment of the learned Sessions Judge to indicate that he ever assessed the evidence on record with a view to satisfy himself if all these elements were made out, and he has not recorded any finding in respect of any of these essential ingredients of the offence. After discussion of the general contentions raised by the defense, he straightway proceeds to convict these ten appellants on a mere finding that they had been identical by some of the prosecution witnesses to be present in the mob. Obviously, there has been a travesty of justice in convicting these appellants for offences under Sections 148, 302/149, 326/149 and 436/149, I.P.C. on the bare fact of their physical presence in or near the mob which has been proved by the identification of witnesses. We have already indicated that the evidence of test identification parade should not be relied upon. The learned Sessions Judge said:
When once it is adapted that any of the accused persons was in the mob, it necessarily means that he shared the common object of the entire mob
The propounding of this doctrine appears to be a novelty and runs counter to the aforesaid decision of the Supreme Court in : 1956CriLJ345 and a galaxy of other decisions to this effect both by this Court and other High Courts which need not be enumerated.
18. In the aforesaid circumstances, and in view of the legal position as discussed above, we are of the opinion, that the conviction and sentence of the appellants cannot be sustained and the judgment of the learned Sessions Judge is accordingly set aside.
19. la the result, the order of conviction and sentence passed on the three accused appellants (1) Harun Tirkey, (2) Samuel Tirkey and (3) Binod Tirkey (appellants in Cr. appeal No. 111/ 65) ; (1) Herun Tirhey son of Markua Tirkey (appellant in Cr. Appeal No. 108/65) and (1) Khoka alias Manaranjan Ashanal (2) Andhreas Tirkey (3) Andhu Lohara (4) Choto Mangra Oram (5) Pyara Singh, and (6) Bholanath Mukherjee (appellants in Cr. Appeal No. 112/66) is set aside and they are directed to be set at liberty forthwith, and the appeals are allowed.
30. I agree.