Lakshman Singh vs State of Bihar (Now Jharkhand)

Penal Code, 1860: s.147 – Presence of all the accused persons at the time of incident was established and proved by prosecution witnesses – They formed unlawful assembly in prosecution of common object i.e. to snatch the voters list and to cast bogus voting – Appellants were rightly convicted under s.147. Sentence/sentencing – Booth capturing and bogus voting – Essence of the electoral system should be to ensure freedom of voters to exercise their free choice – Therefore, any attempt of booth capturing and/or bogus voting should be dealt with iron hands because it ultimately affects the rule of law and democracy – Nobody can be permitted to dilute the right to free and fair election – However, in the instant case State did not prefer any appeal against imposing of only six months simple imprisonment, no interference with sentence order made – Electoral system.

Dismissing the appeals, the Court

HELD: 1. In the instant case, while convicting the accused, the trial Court heavily relied upon the deposition of PW1, PW3 and PW4, who were the independent witnesses and PW5, PW8 & PW10, who were the injured witnesses. The presence of the independent witnesses and even the injured witnesses at the place of the incident was natural. PW1, PW3 & PW4, all of whom were the residents of the village and they came there to cast their votes and witnessed the incident. All the witnesses, PW1, PW3 & PW4 identified all the accused persons and supported the case of the prosecution fully. Injuries on PW5, PW10 & PW12 were established and proved by the prosecution by evidence of the doctor (PW7), who examined the injured witnesses. Their injury reports were placed on record. All the accused persons were named right from the very beginning of lodging the FIR and all the accused persons were specifically named by all the witnesses and/or fully supported the case of the prosecution. Even some of the accused sustained injuries and they have failed to explain their injuries in their 313 statements. Thus, their presence at the time and place of incident was established and proved even otherwise. PW5, PW8 and PW10 were the injured witnesses. Even after they were fully cross-examined, they fully supported the case of the prosecution, even after thorough cross-examination on behalf of the accused. There is no reason to doubt the credibility and/or trustworthiness of PW1, PW3 & PW4 and more particularly PW5, PW8 & PW10, who are the injured witnesses. All the witnesses are consistent in their statements and they have fully supported the case of the prosecution. Under the circumstances, the courts below have not committed any error in convicting the accused, relying upon the depositions of PW1, PW3, PW4, PW5, PW8 & PW10. [Paras 5, 7][736-E-G; 737-B-D; 738-C]

Ramvilas v. State of Madhya Pradesh (2016) 16 SCC

316 : [2015] 9 SCR 205 – relied on.

2. PW8 in his examination-in-chief/deposition specifically stated that after he sustained injuries, treatment was provided at Government Hospital. He further stated in the cross-examination on behalf of all the accused persons except accused-D that he sustained 2-3 blows of truncheons. He also stated that he does not exactly remember that how many blows he suffered. According to him, he first went to Police Station along with the SHO of Police Station where his statement was recorded and thereafter the SHO sent him to Paatan Hospital for treatment. Thus, he was attacked by the accused persons by lathis/sticks and he sustained injuries and was treated at Government Hospital, Paatan was established and proved. It may be that there might not be any serious injuries and/or visible injuries, the hospital might not have issued the injury report. However, production of an injury report for the offence under Section 323 IPC is not a sine qua non for establishing the case for the offence under Section 323 IPC. Section 323 IPC is a punishable section for voluntarily causing hurt. “Hurt” is defined under Section 319 IPC. As per Section

319 IPC, whoever causes bodily pain, disease or infirmity to any person is said to cause “hurt”. Therefore, even causing bodily pain can be said to be causing “hurt”. Therefore, in the facts and circumstances of the case, no error has been committed by the courts below for convicting the accused under Section 323 IPC. [Para 8][738-D-H; 739-A

3. Now so far as the conviction of the accused under Section

147 IPC is concerned, the presence of all the accused persons at the time of incident and their active participation has been established and proved by the prosecution by examining the aforesaid witnesses who are the independent witnesses and injured witnesses also. The accused persons belong to another village. They formed an unlawful assembly in prosecution of common object, i.e., “to snatch the voters list and to cast bogus voting”. It has been established and proved that they used the force and, in the incident, PW5, PW8, PW10 & PW12 sustained injuries. All the accused persons-appellants were having lathis. Section 147 IPC is a punishable section for “rioting”. “Force” is defined under Section 349 IPC. As per Section 349 IPC, “force” means “A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other…….” [Paras 9, 9.1][739-A-G]

4.1 All the accused persons were the members of the unlawful assembly and the common intention was “to snatch the voters slips and to cast bogus voting”. They used force and violence also. It is the case on behalf of the accused that there is no specific role attributed to them for the offence of rioting under Section 147 IPC. However, where there are large number of assailants, it can be difficult for witnesses to identify each assailant and attribute specific role to him. In the present case, the incident too concluded within few minutes and therefore it is natural that exact version of incident revealing every minute detail, i.e., meticulous exactitude of individual acts cannot be given by eyewitnesses. Even otherwise, every member of the unlawful assembly is guilty of the offence of rioting even though he may not have himself used force or violence. [Para 9.1][739-H; 740-A-C]

Abdul Sayeed v. State of MP (2010) 10 SCC 259 : [2010] 13 SCR 311; Mahadev Sharma v. State of Bihar [1966] 1 SCR 18 : AIR 1966 SC 302 – relied on.

4.2 Thus, once the unlawful assembly is established in prosecution of the common object, i.e., in the present case, “to snatch the voters list and to cast bogus voting”, each member of the unlawful assembly is guilty of the offence of rioting. The use of the force, even though it be the slightest possible character by any one member of the assembly, once established as unlawful constitutes rioting. It is not necessary that force or violence must be by all but the liability accrues to all the members of the unlawful assembly. Some may encourage by words, others by signs while others may actually cause hurt and yet all the members of the unlawful assembly would be equally guilty of rioting. In the instant case, all the accused are found to be the members of the unlawful assembly in prosecution of the common object, i.e., “to snatch the voters list and to cast bogus voting” and PW5, PW8, PW10 & PW12 sustained injuries caused by members of the unlawful assembly, the appellants-accused are rightly convicted under Section 147 IPC for the offence of rioting. [Para 9.1][740-E-H]

5. Though in the instant case, it was established and proved that all the accused were the members of the unlawful assembly in prosecution of the common object, namely, “to snatch the voters list and to cast bogus voting” and were convicted for the offence under Section 147 IPC, the trial Court had imposed the sentence of only six months simple imprisonment. In the case of People’s Union for Civil Liberties, it was observed by this Court that freedom of voting is a part of the freedom of expression. It was further observed that secrecy of casting vote is necessary for strengthening democracy. The essence of the electoral system should be to ensure freedom of voters to exercise their free choice. Therefore, any attempt of booth capturing and/or bogus voting should be dealt with iron hands because it ultimately affects the rule of law and democracy. Nobody can be permitted to dilute the right to free and fair election. However, as the State has not preferred any appeal against imposing of only six months simple imprisonment, we rest the matter there. [Para 10][741-B-F] People’s Union for Civil Liberties v. Union of India (2013) 10 SCC 1 : [2013] 12 SCR 283 – relied on. Kutumbaka Krishna Mohan Rao v. Public Prosecutor, High Court of A.P. 1991 Supp. 2 SCC 509; Inder Singh v. State of Rajasthan (2015) 2 SCC 734 : [2015]

1 SCR 563; State of MP v. Mansingh (2003) 10 SCC

414 : [2003] 2 Suppl. SCR 460; State of Uttar Pradesh v. Naresh (2011) 4 SCC 324 : [2011] 4 SCR 1176; Kalabhai Hamirbhai Kachhot v. State of Gujarat (2021) SCC Online SC 347 – referred to.