LexVYAS RAM @ VYAS KAHAR & ORS. versus STATE OF BIHAR
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(2013) 11 S.C.R. 212 A VYAS RAM @ VYAS KAHAR & ORS. B v. STATE OF BIHAR (Criminal Appeal No.791 OF 2009) SEPTEMBER 20, 2013 [A.K. PATNAIK AND H.L. GOKHALE, JJ.] Terrorists and Disruptive Activities (Prevention) Act, 1987 - s.3(1) - Retaliatory attack by group of extremists leading c tq death of 35 persons and injury to 7 persons - Accused- appellants convicted and sentenced to death - Justification - Held: On facts, even if deficiencies in the prosecution are ignored, prosecution case against appellant no. 2 is rather weak - His name not mentioned in the FIR - PW-2 injured witness 0 failed to identify appellant no.2 in Court - None of the other witnesses including PW-3, another injured witness, attributed any role to him - In the circumstances, appellant no.2 deserves acquittal - As far as appellant no.3 is concerned, in addition to his name being mentioned in the FIR as one E who was slitting the throats, he was identified by PW-2 injured witness in Court - Appellant no. 3 was attributed the role of slitting the throats by PW-2 in his oral deposition - Though other witnesses did not attribute any specific role to him, he was identified by them as a participant in the crime - As far as appellant no. 1 is concerned, PW-2 stated in oral evidence F that he. was slitting the throats, and he identified him in the court as well, though no other witness attributed any particular role to him - PW2 being an injured witness, his testimony cannot be ignored - He attributed a specific role to appellants nos.1 and 3 - Conviction of these two accused us.302 /PC G and other charges accordingly upheld - However, the incident occurred in 1992 and the charges were framed in 2004 and more than nine years passed thereafter also, and the appellants have been facing the trauma of the crime and the H 212 VYAS RAM@ VYAS KAHAR & ORS. v. STATE OF 213 BIHAR trial all this period - Besides, the manner in which the A investigation proceeded far from satisfactory - Possibility that due to their poverty and caste conflict the accused were drawn in the melee and participated in the crime - Taking into account the circumstances, death sentence awarded to appellant nos. 1 and 3 commuted to life imprisonment, which B is to mean the rest of their natural life - Penal Code, 1860 - ss.302 rlw 149, 364 rlw 149, 307 rlw 149, s.436 rlw 149 and s.435 rlw 149. Penal Code, 1860 - s. 149 - Common intention - C Punishment prescribed by s. 149 - Nature of - Held: It 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 - At the same time if a person is a mere bystander, and no specific role is attributed to him, he may not come under the wide sweep of s. 149. D In a gruesome carnage, a group of extremists caused the death of 35 persons and injury to 7 persons. All the victims belonged to the Bhumihar community. The incident was claimed to be an attack by the members of E the Maoist Communist Centre (MCC) in retaliation to an earlier attack by the Bhumihar community. The Designated Trial Judge sentenced four accused to death under Section 3(1) of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (TADA), and F to life imprisonment under Section 302 r/w 149 of IPC. Their death sentence was confirmed by a bench of three judges of this Court by a majority of two versus one in Krishna Mochi and Others v. State of Bihar (wherein the Senior Judge cm the bench viz. Hon'ble Mr. Justice M.B. G Shah, rendered a separate judgment acquitting one accused and commuting the death sentence of the other three to life imprisonment). Another group of four accused though convicted under Section 3(1) of TADA, H 214 SUPREME COURT REPORTS [2013] 11 S.C.R. A were sentenced to rigorous imprisonment for life on each count. Their conviction and sentence was set aside by this Court in Bihari Manjhi and Others v. State of Bihar and Rajendra Paswan v. State of Bihar. 8 Three other accused viz. Tyagi Manjhi alias Tyagi-jee, Vijay Yadav and Madhusudan Sharma, tried along with the accused-appellants, were acquitted for want of sufficient evidence. -The three appellants were, however, held to be members of an unlawful assembly, and C convicted and sentenced to death under Section 3(1) of TADA, and to life imprisonment on each count under Sections 302r/w149, 364r/w149, 307r/w149 of l.P.C, and fo
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