When the document is in the custody of a party - it has to produce the same without relying on the principle of burden of proof . The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. National Insurance Co. Ltd. vs. Jugal Kishore, (1988) 1 SCC 626, observing as follows: ­ “10. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over­emphasised.”

When the document is in the custody of a party - it has to produce the same without relying on the principle of burden of proof . 
The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a
private litigant and rely on abstract theories of the burden of proof.

National   Insurance   Co.   Ltd.   vs.   Jugal   Kishore,  (1988) 1 SCC
626, observing as follows: ­
“10. Before parting with the case, we consider it necessary to refer to the attitude often adopted
by   the   Insurance   Companies,   as   was   adopted even in this case, of not filing a copy of the policy before   the   Tribunal   and   even   before   the  High Court in appeal. In this connection what is of significance   is   that   the   claimants   for compensation under the Act are invariably not
possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is
the duty of the party which is in possession of a document   which   would   be   helpful   in   doing
justice   in   the   cause   to   produce   the   said document   and   such   party   should   not   be
permitted   to   take   shelter   behind   the   abstract doctrine of burden of proof. 
This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. 
In many cases even the owner of the vehicle   for   reasons   known   to   him   does   not
choose to produce the policy or a copy thereof. We   accordingly   wish   to   emphasise   that   in   all
such   cases   where   the   Insurance   Company concerned wishes to take a defence in a claim
petition that its liability is not in excess of the statutory   liability   it   should   file   a   copy   of   the
insurance policy along with its defence. Even in the   instant   case   had   it   been   done   so   at   the
appropriate stage necessity of approaching this Court in civil appeal would in all probability have
been   avoided.   Filing   a   copy   of   the   policy, therefore, not only cuts short avoidable litigation
but also helps the court in doing justice between the  parties.  
The  obligation  on   the  part  of  the State  or its  instrumentalities to  act fairly can never be over­emphasised.”


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s).  593­594 OF 2020
(arising out of SLP (Civil) No(s). 30371­30372 of 2017)
M/S. GRANULES INDIA LTD.  ...APPELLANT(S)
VERSUS
UNION OF INDIA AND OTHERS ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.
2. The appellant is aggrieved by orders dated 07.12.2016 and
14.06.2017, rejecting the writ petition as also the review application
arising from the same. 
 3. The appellant, during the year 1993 imported 96 tons of the
chemical “Acetic Anhydride” under three Bills of Entry bearing nos.
290, 291 and 300 dated 01.12.1993, 01.12.1993 and 14.12.1993
1
through the Inland Water Container Depot (ICD), Hyderabad under
the   Advance   Licence   Scheme.   It   claimed   clearance   of   the
consignment free of import duty in terms of Customs Notification
nos. 203/1992, 204/1992, both dated 19.05.1992.  The notification
contained a scheme permitting import without payment of customs
duty subject to fulfilment of certain norms and conditions. The
Notification   nos.   203/1992   and   204/1992   were   amended   by   a
Notification no. 183/1993 dated 25.11.1993, by which the subject
imports   became   liable   for   duty,   the   exemption   having   been
withdrawn. The Notification dated 25.11.1993 was further amended
by another clarificatory Notification no. 105/1994 dated 18.03.1994
permitting the import of the chemical without customs duty subject
to certain terms and conditions.  The clarificatory notification was
necessitated to obviate the difficulties faced by the importers like
the appellant, who had imported the chemical under the advance
licence issued by the Director General of Foreign Trade prior to the
amendment Notification no. 183/1993 dated 25.11.1993.
2
4. The appellant was allowed to clear the consignments under the
aforesaid   three   Bills   of   Entry   without   payment   of   duty.
Subsequently   the   respondents   issued   show   cause   notice   under
Section 28 (1) of the Customs Act, 1962 with regard to the same
consignments   as   having   been   imported   after   25.11.1993.   The
appellant made a representation on 20.11.1997 seeking exemption.
It was considered favourably in respect of three other consignments
under Bill of Entry No.312 dated 12.09.1993, Bill of Entry No.28
dated 10.02.1994 and Bill of Entry No.27 dated 09.02.1994.   The
entire consignments were imported under the same advance licence.
In pursuance of the show cause notice the appellant was held liable
to duty by order dated 12.2.1998 with regard to the consignments
under three Bills of Entry bearing nos.290, 291 and 300 dated
01.12.1993, 01.12.1993 and 14.12.1993 respectively though these
were also under the same advance licence.  The respondents while
considering the reply to the show cause notice and fixing liability for
payment   of   customs   duty   did   not   make   any   reference   to   their
notification dated 18.03.1994.  The Commissioner (Appeals) on the
3
same reasoning rejected the appeal leading to the institution of the
writ application.
5. Dismissing the writ application, the High Court opined that no
mandamus for exemption could be issued.  The consignments were
admittedly imported after 25.11.1993 and before the clarificatory
notification dated 18.03.1994. Thus, there was no arbitrariness on
part of the respondent.  The appellant preferred a review application
inter alia relying upon a Division Bench order of the Andhra Pradesh
High Court in Shri Krishna Pharmaceuticals Limited vs. Union
of  India,  (2004) 173 ELT 14.   Rejecting the plea, the High Court
opined that since the appellant did not produce the clarificatory
notification   along   with   the   writ   petition   and   neither   were   the
respondents aware of the clarificatory notification the appellant was
not entitled to any relief.
6. Shri B. Adinarayana Rao, learned senior counsel appearing on
behalf of the appellant, submitted that denial of exemption to the
consignment actually imported after 25.11.1993 under the advance
4
licence   obtained   prior   to   19.05.1992   notwithstanding   the
clarificatory   notification   dated   18.03.1994   holding   the   appellant
liable for customs duty is completely unsustainable.  Special Leave
Petition   (Civil)   No.14288   of   2004   (CC   No.5418/2004)   preferred
against   the   order   in  Shri   Krishna   Pharmaceuticals   Limited
(supra) was dismissed.   The mere failure to enclose a copy of the
notification could not be a ground for denial of relief.   Denial of
exemption in the facts and circumstances of the case in view of the
statutory notifications were per se arbitrary.
7. Learned counsel appearing for the State supported the order of
the   High   Court   and   urged   that   the   consignments   having   been
imported after withdrawal of the exemption and before issuance of
the clarificatory notification was justified.
8. We have considered the submissions on behalf of the parties
and are of the considered opinion that the order of the High Court is
completely   unsustainable.   The   entire   consignment   was   imported
under   one   advance   licence   issued   to   the   petitioner   prior   to
5
19.05.1992.   The   fortuitous   circumstance   that   part   of   the
consignment was actually imported prior to 25.11.1993 and the rest
subsequent thereto is hardly relevant in view of the clarificatory
notification dated 18.03.1994 that the exemption would continue to
apply subject to fulfilment of the specified terms and conditions.  It
is not the case of the respondents that the consignments imported
subsequently   did   not   meet   the   terms   and   conditions   of   the
exemption. In Shri Krishna Pharmaceuticals Limited (supra), the
High Court observed as follows:
“7. …Obviously, the petitioner had the facility
of   exemption   from   payment   of   the   customs
duty   under   the   scheme   known   as   Advance
License   Scheme,   but   the   same   was   banned
through   notification   dated   25.11.1993   and
later through another clarificatory notification
the same was extended by Notification dated
18.3.1994.  Thus, since the Government itself
has   clarified   by   its   second   notification
providing exemption, we are inclined to hold
that   the   petitioner   shall   be   entitled   to   be
exemption for all the three consignments as
long as the three consignments are imported
under the Advance License scheme.  Moreover,
it is not the case of the respondents that these
three consignments are not covered under the
Advance License scheme.”
6
9. It is unfortunate that the High Court failed to follow its own
orders in a similar matter. The High Court further gravely erred in
holding that the authorities of the State were also unaware of the
clarificatory notification and neither did the appellant bring it on
record. The State is the largest litigant as often noted. It stands in a
category apart having a solemn and constitutional duty to assist the
court in dispensation of justice. The State cannot behave like a
private litigant and rely on abstract theories of the burden of proof.
The State acts through its officer who are given powers in trust. If
the   trust   so   reposed   is   betrayed,   whether   by   casualness   or
negligence, will the State still be liable for such misdemeanor by its
officers betraying the trust so reposed in them or will the officers be
individually answerable. In our considered opinion it is absolutely
no defence of the State authorities to contend that they were not
aware of their own notification dated 18.09.1994. The onus heavily
rests on them and a casual statement generating litigation by State
apathy cannot be approved.
7
10.   We can do no better than quote the following extract from
National   Insurance   Co.   Ltd.   vs.   Jugal   Kishore,  (1988) 1 SCC
626, observing as follows: ­
“10. Before parting with the case, we consider it
necessary to refer to the attitude often adopted
by   the   Insurance   Companies,   as   was   adopted
even in this case, of not filing a copy of the policy
before   the   Tribunal   and   even   before   the  High
Court in appeal. In this connection what is of
significance   is   that   the   claimants   for
compensation under the Act are invariably not
possessed of either the policy or a copy thereof.
This Court has consistently emphasised that it is
the duty of the party which is in possession of a
document   which   would   be   helpful   in   doing
justice   in   the   cause   to   produce   the   said
document   and   such   party   should   not   be
permitted   to   take   shelter   behind   the   abstract
doctrine of burden of proof. This duty is greater
in the case of instrumentalities of the State such
as the appellant who are under an obligation to
act fairly. In many cases even the owner of the
vehicle   for   reasons   known   to   him   does   not
choose to produce the policy or a copy thereof.
We   accordingly   wish   to   emphasise   that   in   all
such   cases   where   the   Insurance   Company
concerned wishes to take a defence in a claim
petition that its liability is not in excess of the
statutory   liability   it   should   file   a   copy   of   the
insurance policy along with its defence. Even in
the   instant   case   had   it   been   done   so   at   the
appropriate stage necessity of approaching this
Court in civil appeal would in all probability have
been   avoided.   Filing   a   copy   of   the   policy,
8
therefore, not only cuts short avoidable litigation
but also helps the court in doing justice between
the  parties.  The  obligation  on   the  part  of  the
State  or its  instrumentalities to  act fairly can
never be over­emphasised.”
11. The impugned orders are therefore held to be unsustainable
and are set aside.  The appeals are allowed. 
.……………………….J.
(Navin Sinha) 
………………………..J.
   (Krishna Murari) 
New Delhi,
January 23, 2020
9

Contempt Petition = When the directions were to act in terms of the report of Bhatnagar Committee - the basic foundation of contempt petition projecting issuance of Notification does not survive as the matter was pending before High Court for consideration - when all these issues need to be gone into in a substantive challenge and will be beyond the scope of contempt jurisdiction - and as such contempt petition was closed. As a matter of fact, the directions issued by this Court in para 48 were clear that the State and its authorities were to act in terms of the report of the Bhatnagar Committee in accordance with the decisions in M. Nagraj and Suraj Bhan Meena1 . The basic foundation of the present contempt petitions projecting the issuance of Notification dated 11.09.2011 to be in contempt of the directions issued by this Court, thus, does not survive. In any case, challenge to said Notification and the report of the Bhatnagar Committee is still pending consideration before the High Court where the correctness and validity thereof will be gone into in accordance with law. With the decision of this Court in Jarnail Singh the matter also stands on a slightly modified footing. As concluded by this Court in Jarnail Singh the conclusion in M. Nagraj that the State has to collect quantifiable data showing backwardness of SC/ST, being contrary to the 9 Judges Bench decision in Indra Sawhney , was held to be invalid. The challenge to the recommendations given by the Bhatnagar Committee and the quantifiable data adverted to by the Committee will therefore have to be seen by the High Court in the light of the directions issued by this Court in Jarnail Singh. It is, thus, clear that all these issues need to be gone into in a substantive challenge and will be beyond the scope of contempt jurisdiction.

Contempt Petition  = When the directions were to act in terms of the report of Bhatnagar Committee - the basic foundation of contempt petition projecting issuance of Notification does not survive as the matter was pending before High Court for consideration - when all these issues need to be gone into in a substantive challenge and will be beyond the scope of contempt jurisdiction - and as such contempt petition was closed.

As a matter of fact, the directions issued by this Court in para 48 were clear that the State and its authorities were to act in terms of the report of the Bhatnagar Committee in accordance with the decisions in M. Nagraj and Suraj Bhan Meena1 . The basic foundation of the present contempt petitions projecting the issuance of Notification dated 11.09.2011 to be in contempt of the directions issued by this Court, thus, does not survive. In any case, challenge to said Notification and the report of the Bhatnagar Committee is still pending consideration before the High Court where the correctness and validity thereof will be gone into in accordance with law. With the decision of this Court in Jarnail Singh the matter also stands on a slightly modified footing. As concluded by this Court in Jarnail Singh the conclusion in M. Nagraj that the State has to collect quantifiable data showing backwardness of SC/ST, being contrary to the 9 Judges Bench decision in Indra Sawhney , was held to be invalid. The challenge to the recommendations given by the Bhatnagar Committee and the quantifiable data adverted to by the Committee will therefore have to be seen by the High Court in the light of the directions issued by this Court in Jarnail Singh.  It is, thus, clear that all these issues need to be gone into in a substantive challenge and will be beyond the scope of contempt jurisdiction. 

Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
1
Reportable
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
CONTEMPT PETITION (CIVIL)Nos.453-454 OF 2012
IN
CIVIL APPEAL NOS. 2504-2505 OF 2012
BAJRANG LAL SHARMA …PETITIONER
VERSUS
C.K. MATHEW AND ORS. …ALLEGED CONTEMNORS/
 RESPONDENTS
J U D G M E N T
Uday Umesh Lalit, J.
1. These Contempt Petitions seek to highlight non-compliance of
directions issued by this Court in its Judgments dated 07.12.2010 in Suraj
Bhan Meena and another vs. State of Rajasthan and others1
and
29.08.2012 in Salauddin Ahmed and another vs. Samta Andolan2
and
1
(2011) 1 SCC 467
2
(2012) 10 SCC 235
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
2
seek initiation of contempt proceedings against the alleged
contemnors/respondents.
2. The Contempt Petitioner, a Rajasthan Administrative Officer of
1982 batch, had preferred DB Civil Writ Petition No.8104 of 2008 before
the High Court3
for following reliefs:-
(i) By an appropriate writ, order or direction the
Hon’ble Court may be pleased to quash and set aside
the notification dated 25.04.2008.
(ii) By further appropriate writ order or direction the
Hon’ble Court may be pleased to direct respondents
to strictly adhere to the “catch-up rule” and revise
the seniority of all the petitioners in comparison to
SC/ST candidates after giving the benefit of
regaining of the seniority by the general category
candidates as envisaged by the circular dated
01.04.1997 and provisional seniority list dated
26.06.2000.
(iii) By further appropriate writ order or direction the
Hon’ble Court may be pleased to declare the circular
dated 20.10.2000 unconstitutional and illegal as the
same is not in accordance with the theory of
compartmentalization.
3 High Court of Rajasthan, Jaipur Bench, Jaipur
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
3
(iv) By further appropriate writ order or direction the
Hon’ble Court may be pleased to further direct
respondents to revise the seniority list since 1982 as
the benefit of seniority given to the reserved
category candidates before 1995 in accordance with
the Rule 33 of RAS Rules, 1954 is illegal.
(v) By further appropriate writ order or direction the
Hon’ble Court may be pleased to restrain the
respondents to provide consequential seniority of
SC/ST candidates as the Rules were not framed in
pursuance of Article 16(4-A). In alternative if Rule
33 talks about giving benefit of consequential
seniority then that rule be declared unconstitutional
to the extent it provides consequential seniority to
SC/ST employees.
(vi) By further writ, order or direction the respondents be
directed to strictly adhere to post based roster system
as envisaged by R.K. Sabharwal’s case and
respondents be further directed to bifurcate 53 seats
occurring in 2008 because of the selection to IAS
post in their respective years of vacancies for the
sake of holding year wise DPCs for those years.
(vii) By further writ, order or direction the respondents be
restrained to provide the benefit of reservation in
promotion with consequential seniority unless and
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
4
until they establish the existence of three compelling
reasons as enunciated in the judgment of M. Nagraj.
(viii) By further writ, order or direction the respondents be
directed to revise the seniority of all the petitioners
and they should be given the benefit of their
seniority in pursuance of the “catch-up rule”.
(ix) By further writ, order or direction the respondents be
restrained to make any selection for IAS cadre
through promotion till disposal of this writ petition.
3. The High Court by its judgment and order dated 05.02.20104
quashed the notifications dated 25.04.2008 and 28.12.2002 and all
consequential actions. The challenge to the judgment of the High Court
was considered by this Court and by its decision in Suraj Bhan1
the view
taken by the High Court was affirmed. The factual background was
considered by this Court as under:-
“4. All the writ petitioners, as also the petitioners in
SLP (C) No. 6385 of 2010, are members of the
Rajasthan Administrative Service and are governed by
the Rajasthan Administrative Service Rules, 1954. The
writ petitioners in their respective writ petitions
challenged the Notification dated 25-4-2008, issued by
the State of Rajasthan in exercise of its powers
conferred by the proviso to Article 309 of the
4 Bajrang Lal Sharma vs. State of Rajasthan, WP (C)No.8104 of 2008 (Raj) and other
connected matters
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
5
Constitution of India amending the Rajasthan “Various
Service Rules” with effect from 28-12-2002.
5. According to the writ petitioners, they had been
inducted in the Rajasthan Administrative Service in
December 1982, through selection by the Rajasthan
Public Service Commission. Vide notice dated 26-6-
2000, the State Government issued a provisional
seniority list of Rajasthan Administrative Service
Selection Grade as on 1-4-1997, in which Writ
Petitioner 1, Bajrang Lal Sharma, was placed above
Suraj Bhan Meena (Scheduled Tribe) and Sriram
Choradia (Scheduled Caste).
6. The said seniority list was published pursuant to the
order of this Court dated 16-9-1999, passed in Ajit
Singh (II) v. State of Punjab5
and another order of the
same date in Ram Prasad v. D.K. Vijay6
. Once again
provisional seniority lists were published on 27-11-
2003 and 12-5-2008. Subsequently, the State of
Rajasthan published the final seniority lists of supertime scale and selection scale of the service on 24-6-
2008 as on 1-4-1997 and provisional seniority list
dated 2-7-2008 as on 1-4-2008, wherein the name of
Bajrang Lal Sharma was shown below the names of
both Suraj Bhan Meena and Sriram Choradia.
7. The Notification dated 25-4-2008, which was the
subject-matter of challenge in the writ petition was
challenged on two grounds. It was firstly contended
that the proviso dated 28-12-2002, which had been
added to the Various Service Rules was subject to the
final decision of this Court in Writ Petition (Civil) No.
234 of 2002 filed in All India Equality Forum v. Union
of India, but the same was yet to be decided. Therefore,
during the pendency of the writ petition before this
Court, the respondents had acted improperly in
deleting the abovementioned proviso in the Various
Service Rules by the Notification dated 25-4-2008,
5
 (1999) 7 SCC 209
6
(1999) 7 SCC 251
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
6
which amounted to giving a consequential seniority to
candidates belonging to the Scheduled Castes and
Scheduled Tribes, which could not have been given
without quantifying the figures of Scheduled Caste and
Scheduled Tribe candidates to enable a decision to be
arrived at that reservation was required in promotion
and also to show that the State had to pass such orders
for compelling reasons, such as, backwardness,
inadequacy of representation, as held by this Court in
M. Nagaraj v. Union of India7
. It was contended that
since the State Government had not complied with the
directions given by this Court in M. Nagaraj case7
, the
notification in question was liable to be quashed.
8. It was further urged on behalf of the writ petitioner
Bajrang Lal Sharma, that in Indra Sawhney v. Union of
India8
, this Court had held that Article 16(4) of the
Constitution of India did not permit reservations in the
matter of promotion. Thereafter, the Constitution
(Seventy-seventh Amendment) Act, 1995, was enacted
and came into force on 17-6-1995. The subsequent
special leave petitions filed in Union of India v. Virpal
Singh Chauhan9
, Ajit Singh Januja v. State of Punjab10
[Ajit Singh (I)] and Ajit Singh (II) v. State of Punjab5
,
introduced the “catch-up” rule and held that if a senior
general candidate was promoted after candidates from
the Scheduled Castes and Scheduled Tribes have been
promoted to a particular cadre, the senior general
candidate would regain his seniority on promotion in
relation to the juniors who had been promoted against
reserved vacancies.”
7
(2006) 8 SCC 212
8
 1992 Supp. (3) SCC 217
9
(1995) 6 SCC 684
10 (1996) 2 SCC 715
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
7
3.1 After considering the decision of the Constitution Bench of this
Court in M. Nagaraj7
the matter was concluded as under:-
“60. The vital issue which fell for determination was
whether by virtue of the implementation of the
constitutional amendments, the power of Parliament
was enlarged to such an extent so as to ignore all
constitutional limitations and requirements.
61. Applying the “width” test and “identity” test, the
Constitution Bench held that firstly, it is the width of
the power under the impugned amendments
introducing amended Articles 16(4-A) and 16(4-B)
that had to be tested. Applying the said tests, the
Constitution Bench, after referring to the various
decisions of this Court on the subject, came to the
conclusion that the Court has to be satisfied that the
State had exercised its power in making reservation for
Scheduled Caste and Scheduled Tribe candidates in
accordance with the mandate of Article 335 of the
Constitution, for which the State concerned would
have to place before the Court the requisite quantifiable
data in each case and to satisfy the Court that such
reservation became necessary on account of
inadequacy of representation of Scheduled Caste and
Scheduled Tribe candidates in a particular class or
classes of posts, without affecting the general
efficiency of service.
62. The Constitution Bench went on to observe that the
constitutional equality is inherent in the rule of law.
However, its reach is limited because its primary
concern is not with efficiency of the public law, but
with its enforcement and application. The Constitution
Bench also observed that the width of the power and
the power to amend together with its limitations, would
have to be found in the Constitution itself. It was held
that the extension of reservation would depend on the
facts of each case. In case the reservation was
excessive, it would have to be struck down.
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
8
63. It was further held that the impugned Constitution
Amendments, introducing Articles 16(4-A) and
16(4-B), had been inserted and flow from Article
16(4), but they do not alter the structure of Article
16(4) of the Constitution. They do not wipe out any of
the constitutional requirements such as ceiling limit
and the concept of creamy layer on one hand and
Scheduled Castes and Scheduled Tribes on the other
hand, as was held in Indra Sawhney case8
.
64. Ultimately, after the entire exercise, the
Constitution Bench held that the State is not bound to
make reservation for Scheduled Caste and Scheduled
Tribe candidates in matters of promotion but if it
wished, it could collect quantifiable data touching
backwardness of the applicants and inadequacy of
representation of that class in public employment for
the purpose of compliance with Article 335 of the
Constitution.
65. In effect, what has been decided in M. Nagaraj
case7
is part recognition of the views expressed in
Virpal Singh Chauhan case9
, but at the same time
upholding the validity of the Seventy-seventh, Eightyfirst, Eighty-second and Eighty-fifth Amendments on
the ground that the concepts of “catch-up” rule and
“consequential seniority” are judicially evolved
concepts and could not be elevated to the status of a
constitutional principle so as to place them beyond the
amending power of Parliament. Accordingly, while
upholding the validity of the said amendments, the
Constitution Bench added that, in any event, the
requirement of Articles 16(4-A) and 16(4-B) would
have to be maintained and that in order to provide for
reservation, if at all, the tests indicated in Articles
16(4-A) and 16(4-B) would have to be satisfied, which
could only be achieved after an inquiry as to identity.
66. The position after the decision in M. Nagaraj case7
is that reservation of posts in promotion is dependent
on the inadequacy of representation of members of the
Scheduled Castes and Scheduled Tribes and Backward
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
9
Classes and subject to the condition of ascertaining as
to whether such reservation was at all required.
67. The view of the High Court is based on the decision
in M. Nagaraj case7
as no exercise was undertaken in
terms of Article 16(4-A) to acquire quantifiable data
regarding the inadequacy of representation of the
Scheduled Caste and Scheduled Tribe communities in
public services. The Rajasthan High Court has rightly
quashed the Notifications dated 28-12-2002 and 25-4-
2008 issued by the State of Rajasthan providing for
consequential seniority and promotion to the members
of the Scheduled Caste and Scheduled Tribe
communities and the same does not call for any
interference.
68. Accordingly, the claim of petitioners Suraj Bhan
Meena and Sriram Choradia in Special Leave Petition
(Civil) No. 6385 of 2010 will be subject to the
conditions laid down in M. Nagaraj case
7
and is
disposed of accordingly. Consequently, Special Leave
Petitions (C) Nos. 7716, 7717, 7826 and 7838 of 2010,
filed by the State of Rajasthan, are also dismissed.”
3.2. Thus, the view taken by the High Court that no exercise was
undertaken in terms of Article 16(4-A) of the Constitution to acquire
quantifiable data regarding inadequacy of the representation of the
Scheduled Caste (SC) and Scheduled Tribe (ST) communities in public
services, was accepted.
4. On 31.03.2011 the State Government constituted a Committee,
known as Bhatnagar Committee, to look into different aspects relating to
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
10
reservation in promotion and consequential seniority in terms of the
Judgment of this Court in M. Nagaraj7
. The Terms of Reference of the
Committee were:-
“1. Collection and analysis of quantifiable data of
inadequacy of representation of SC and ST in matters
of their promotions and consequential seniority.
2. To ascertain the extent of representation of
members of the SC/ST at each level of promotion in
the various levels of each cadre (There are 110
government cadres in the State).
3. Recommend the guiding principles of maintaining
administrative efficiency vis-à-vis reservation in
promotion of SC/STs.”
4.1 The Committee submitted its Report to the State Government on
19.08.2011. Some of the relevant portions of the Report were as under:-
“10.5. Overall analysis of inadequacy in State and
Subordinate Services as on 1.4.2010
Total Number of State Service 11457
Subordinate 64803
Grand Total 76260
Total number of Levels/Grade Pay State Service 12
Subordinate 13
Total 25
The overall picture after analyzing the position in the
Grade Pay Wise of State and Subordinate Services, in
fact, indicates highly inadequate representation for SC
and ST in these services as further detailed below.
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
11
10.5.1. Inadequacy of Representation in Subordinate
Services.
There are thirteen levels for Subordinate Services as
described in Sections 10.4.13 to 1.4.25 i.e. Grade Pays
1650 to 4800 and among them they represent a total of
64326 employees which is almost 84% of the total of
State and subordinate services. In the first group taken
up for detailed analysis of 6 levels i.e. 2800 to 4800. It
would be seen that one level of 2800 has only 128 posts
and can be left out. In the remaining five levels it can
be seen that out of 20 results each for SC and ST in the
five tables above, for the SC there are results of
Alarming Shortage, 5 for Substantial Shortage, 5 for
Moderate Shortage and 1 showing Marginal Shortage.
In two cases the cadres are saturated and excess
representation has been indicated only in 3 cases (2
Moderate and 1 Marginal). In the case of ST there are
11 results showing Alarming Shortage, 2 showing
Substantial Shortage, 3 showing Moderate Shortage
and 2 showing Marginal Shortage. In the remaining 2
cases cadres are saturated. In the remaining seven
levels from 1650 to 2400, four out of them i.e., 1650,
1800, 1850 and 2100 consist of small numbers are of
no consequence. In the remaining levels at 1900, 2000
and 2400, 12 results each for SC and ST do not show
any case of alarming excess, there are two cases of
moderate excess and 5 cases of marginal excess. On
the contrary, there are 4 cases of alarming shortages, 6
of substantial shortages, five of moderate shortages and
one of marginal shortage.
10.5.2. Inadequacy of Representation in State
Services.
Out of 12 levels for state services, the initial four levels
i.e., 4800, 5400, 6000 and 6600 represent 17408
employees, i.e. almost 87% of the total of state
services. Again out of 15 results each for SC and ST,
in case of SC 6 showing Alarming Shortage, 3 show
Substantial Shortage, 6 show Moderate Shortage and
only 1 shows Marginal Excess. In the case of ST, there
are 11 results showing Alarming Shortage, 3 showing
substantial shortage and 1 showing Moderate Shortage.
The remaining one result is of Marginal Excess. In
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
12
another group of two levels i.e., 7600 and 8700
representing 2244 employees indicate a mixed picture
bordering towards Inadequacy. Exactly out of 8 results
for SC and ST each for SC there are 4 results showing
Alarming Shortage and 1 showing Marginal Shortage.
There is one case of Substantial Excess and one each
of Moderate and Marginal Excess.
In the case of ST there are 2 results showing Alarming
Shortage, 1 result of Marginal Substantial Shortage. 1
case of Moderate Shortage and 2 results of Marginal
Shortage. Finally, there is one case of Marginal
Excess.
A third group of two levels i.e., 7000 and 7200
representing only 72 employees indicates saturation
levels for both SC and ST. The last remaining group
consisting of 4 levels i.e., 6800, 8200, 8900 and 10000
representing only 240 employees generally indicate
excess representation. In fact, nut of a total number of
16 results for SC and ST each, for SC 3 indicate
Alarming Shortage and 1 shows a Marginal Shortage.
In 1 case the result shows saturation of the cadre. The
remaining 11 results show 3 Alarming Excess, 4
Substantial Excess, 2 Moderate Excess and 2 results
are of Marginal Excess. In the case of ST there are 6
cases of Alarming Shortage, 1 case of Substantial
Shortage, 1 case of Moderate Shortage and 2 cases of
Marginal Shortage. In the remaining cases there are 4
cases of Alarming Excess, 1 case of Marginal Excess
and 1 case of Cadre Saturation.”
4.2. From paragraphs 10.11.4 onwards the Committee considered
figures of excess/shortage of reserved candidates in different grades and
put the concerned data in tabulated form and the conclusions were
summarized as under:-
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
13
“16.1. Annual Census of State Government
Employees carried out by Directorate of Statistics.
Figures of years 1997, 2001, 2005 and 2009 of the
census indicate that the representation of SC and ST in
public services has increased from 18.59% to 27.19%.
The Pay Range Wise census has also indicated that the
existing levels just seem to be reaching the required
percentage in the lowest pay ranges but they are still
far behind in the higher pay ranges. (Section 9.1.2.2.).
… … …
16.7. Backwardness of SC and ST well
established on the basis of Quantifiable Data.
The Committee finds that backwardness of SC and ST
is well established on the basis of quantifiable data.
(Section 11.5).”
5. On 11.09.2011 a notification was issued in the Gazette amending
the Rajasthan Administrative Service Rules, 1954 as under:-
“DEPARTMENT OF PERSONNEL
(A-Gr.-II)
NOTIFICATIONS
Jaipur, September 11, 2011
G.S.R. 67.- In exercise of the powers conferred by the
proviso to Article 309 of the Constitution of India, the
Governor of Rajasthan hereby makes the following
rules further to amend in the Rajasthan Administrative
Service Rules, 1954, namely:-
1. Short title and commencement.- (1) These rules
may be called the Rajasthan Administrative
Service (Amendment) Rules, 2011.
(2) They shall be deemed to have come into force
w.e.f. 1-4-1997.
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
14
2. Amendment of rule 33.- In sub-rule (1) of rule 33
of the Rajasthan Administrative Service Rules, 1954
after the existing last proviso, the following new
proviso at the next serial number shall be added,
namely:-
“that reservation for Scheduled Castes and
Scheduled Tribes employees, with
consequential seniority, shall continue till
the roster points are exhausted; and
adequacy of promotion is achieved.
Once the roster points are complete the
theory of replacement shall thereafter be
exercised in promotion whenever vacancies
earmarked for Scheduled Castes/Scheduled
Tribes employees occur.
If on the application of these provisions
Scheduled Castes/Scheduled Tribes
employees who had been promoted earlier
and are found in excess of adequacy level,
shall not be reverted and shall continue on
ad-hoc basis, and also any employee who
had been promoted in pursuance to
Notification No. F7(1)DOP/A-II/96 dated
1-4-1997 shall not be reverted.
Notification No. F.7(1)DOP/A-II/96 dated
1-4-1997 shall be deemed to have been
repealed w.e.f. 1-4-1997.
Explanation:- Adequate representation
means 16% representation of the Scheduled
Castes and 12% representation of the
Scheduled Tribes in accordance with the
roster point.”
6. In DB Civil Contempt Petition No. 941 of 2010 which was filed
earlier in the High Court seeking implementation of the directions issued
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
15
by the High Court in its judgment and order dated 05.02.2010 in DB Civil
Writ Petition No.8104 of 2008, the High Court by its judgment and order
dated 23.02.2012 found the alleged contemnors to be guilty of violation
of the judgment and order dated 05.02.2010. The High Court held the
notification dated 11.09.2011 to be void holding that the same did not
amount to valid compliance.
7. The matter again reached this Court in the form of challenge to said
decision of the High Court and was dealt with by this Court in its decision
in Salauddin2
.
7.1. The submissions in respect of the notification dated 11.09.2011
were noted as under:-
“18. Appearing for the appellants, the learned Attorney
General pointed out that the Notification issued by the
State Government on 11-9-2011, had been declared
void by the High Court by holding that the same did
not amount to valid compliance and the Notification
dated 1-4-1997 should be given effect to. The learned
Attorney General submitted that since by the
Notification dated 11-9-2011, the earlier Notification
dated 1-4-1997 had been withdrawn, the same could
not be given effect to without first declaring the
Notification dated 11-9-2011 to be ultra vires.
19. The learned Attorney General submitted that the
Notification dated 11-9-2011 could not have been
declared ultra vires in the absence of a substantive writ
petition challenging the same, and, in any event, it
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
16
could not be questioned in a contempt proceeding or be
declared ultra vires therein, particularly, when the
Bhatnagar Committee had been appointed in terms of
the order passed by this Court in M. Nagaraj case7
and
the Notification dated 11-9-2011 was issued in
pursuance of the report of the said Committee.
… … …
38. Dr Dhavan fairly conceded that an order may be
violated without any wilful intent to disobey the same.
Referring to Para 459 of Halsbury’s Laws of England,
dealing with “unintentional disabilities”, Dr Dhavan
pointed out that sometimes it may so happen that an
order of court is breached without any intention on the
part of the offender to do so. Dr Dhavan submitted that
this could be such a case and, accordingly, the
contemnors could be directed to purge themselves of
the contempt by withdrawing all the notifications,
including the Notification dated 11-9-2011, and
implementing the order dated 5-2-20104, and also to
punish the contemnors without sentence.”
7.2. The issue whether the State and its authorities were guilty of willful
and deliberate violation of binding directions was considered by this Court
as under:-
“41. Inasmuch as no further action was taken by the
State and its authorities after the said notifications were
quashed, the contempt petition was filed mainly on the
ground that the State and its authorities had by their
inaction in complying with the requirements set out in
M. Nagaraj case7
, committed contempt of court and
the same was accepted and the appellants herein were
found guilty of having committed contempt of court by
such inaction.
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
17
42. The next thing that we are required to consider is
whether such inaction was on account of any
circumstances which prevented the State Government
and its authorities from taking action in terms of the
observations made by the Division Bench of the High
Court in its judgment dated 5-2-20104
, or whether such
inaction was on account of the deliberate intention of
the State and its authorities not to give effect to the
same.
43. The learned Attorney General, who had appeared
for the State of Rajasthan and its authorities, had
submitted that the order dated 5-2-20104
, was in two
parts. While one part dealt with the quashing of the two
notifications, the other was with regard to the
observations made in the said order with regard to the
directions given in M. Nagaraj case7
for collection of
the quantifiable data before giving effect to the
provisions of Article 16(4-A) of the Constitution. The
learned Attorney General has also emphasised that in
order to give effect to the second part of the judgment
and order of the Division Bench of the Rajasthan High
Court and the directions given in para 68 of the
judgment in Suraj Bhan Meena case1
, the Government
of Rajasthan had appointed the Bhatnagar Committee
to obtain the quantifiable data to comply with the
directions given in the two aforesaid judgments. The
learned Attorney General has also pointed out that
directions have been given to all the different
departments on 14-2-2011, to ensure compliance with
the directions contained in Suraj Bhan Meena case1
.
44. Although, it has been urged on behalf of the
respondents that there was a restraint order on the State
and its authorities from giving effect to the
observations made in the order passed by the Division
Bench of the High Court on 5-2-20104
, or even in the
order passed in Suraj Bhan Meena case1
, the State and
its authorities remained inactive on the plea that it had
appointed the Bhatnagar Committee to collect the data
necessary in terms of the judgment and order passed in
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
18
M. Nagaraj case7
, which had been reiterated by this
Court in Suraj Bhan Meena case1
.
45. The explanation given on behalf of the State and its
authorities cannot be discounted, since in order to act
in terms of the sentiments expressed by the High Court
and this Court, it was necessary to collect the
quantifiable data in respect of the Scheduled Caste and
Scheduled Tribe candidates. For collection of such
data, the State appointed the Bhatnagar Committee
which was entrusted with the work of obtaining such
quantifiable data so that the provisions of the amended
clause (4-A) included in Article 16 of the Constitution
could be given effect to in terms of the directions given
in M. Nagaraj case7
, subsequently reiterated in Suraj
Bhan Meena case1
.
46. The various submissions advanced by Mr Salve, Dr
Dhavan and Mr Sanjeev Prakash Sharma in support of
the decision of the Division Bench of the High Court,
holding the appellants guilty of contempt of court and,
in particular, the alleged inaction to implement the
judgment and orders in M. Nagaraj case
7
and Suraj
Bhan Meena case1
are not very convincing, since in
order to comply with the findings in M. Nagaraj case7
and Suraj Bhan Meena case1
, necessary data was
required to be collected, in the absence of which it was
not possible for the State and its authorities to act in
terms of the observations made in M. Nagaraj case7
and in Suraj Bhan Meena case1
.
47. Accordingly, we are of the view that despite the
fact that there has been delay on the part of the State
and its authorities in giving effect to the observations
made in the two aforesaid cases, there was no wilful or
deliberate intention on their part to defy the orders of
this Court. The very fact that the Bhatnagar Committee
was appointed indicates that the State and its
authorities had every intention to implement the
aforesaid observations, though the progress of such
implementation has been tardy. Accordingly, we are
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
19
unable to sustain the impugned judgment11 and order
of the Division Bench of the High Court holding the
appellants guilty of contempt of court for purported
violation of the order passed by the Division Bench of
the Jaipur Bench of the Rajasthan High Court on 5-2-
20104
, while disposing of Civil Writ Petition No. 8410
of 2008. Consequently, the judgment and order under
appeal has to be set aside.
48. We accordingly allow the appeals and set aside the
aforesaid judgment, but with the further direction that
the State and its authorities act in terms of the Report
of the Bhatnagar Committee, in accordance with the
decision rendered in M. Nagaraj case7
and in Suraj
Bhan Meena case1
, within two months from the date of
communication of this judgment and order. There will
be no order as to costs.”
7.3. It was thus found by this Court in paragraphs 46 and 47 that there
was no willful and deliberate violation; that the State Government had
appointed the Bhatnagar Committee to collect the data necessary in terms
of the Judgment and Order passed by this Court in M. Nagaraj7
case
which principles were reiterated in the decision in Suraj Bhan1
. The
directions issued by this Court in paragraph 48 were clear that the State
Government and its authorities were to act in terms of the Report of the
Bhatnagar Committee in accordance with the decision rendered in M.
11 Bajrang Lal Sharma vs. Salauddin Ahmed, Civil Contempt Petitions Nos. 359 and 941 of
2010 in WP(C)No.8104 of 2008, order dated 23-2-2012 (Raj)
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
20
Nagaraj7
case and in the decision in Suraj Bhan1within two months from
the date of decision of this Court.
8. The aforesaid decision was rendered by this Court on 29.08.2012
and the instant Contempt Petitions were filed in November, 2012 setting
out the grievance as under:-
“13. That State of Rajasthan despite the judgment
dated 29.8.2012 passed by this Hon’ble Court, wherein
notification dated 11.9.2011 was not accepted as
compliance to judgment dated 5.2.2010 & 7.12.2010,
had issued a order dated 12.9.2012: whereby direction
was issued to all the departments to publish the
seniority lists and make promotions on the basis of the
notification dated 11.9.2011.
… … …
14. That the action of the State of Rajasthan of making
promotions on the basis of the Notification dated
11.9.2011 is in blatant contempt to the directions given
by this Hon’ble Court in judgment dated 29.8.2012
despite of the understanding / conceding of the State of
Rajasthan that after quashing of the Notifications dated
25.4.2008 and 28.12.2002, the Notification dated
1.4.1997 revives. In order to make compliance of the
judgment dated 5.2.2010, as also required by this
Hon’ble Court vide judgment dated 29.8.2012, the
General Category employees are entitled for their
vested and accrued rights of regained seniority.
… … …
15. That this Hon’ble Court in directions dated
29.8.2012 had clearly directed the State of Rajasthan to
make the compliance of the judgment in terms of the
report of the Bhatnagar Committee, in accordance with
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
21
M. Nagraj7
and Suraj Bhan Meena1
. It is relevant to
mention that Bhatnagar Committee has no where
recommended giving of consequential Seniority to
SC/ST w.e.f. 1.4.1997. It is also to be noted that
Bhatnagar Committee conducted study of only 17
services out of 117 services and out of those 17
services in 16 services there is excessive representation
of the SC/ST employees on promotional posts. In M.
Nagraj7
this Hon’ble Court observed that study is to be
conducted in each case and where there is adequate or
excessive representation that powers under Article
16(4A) cannot be excercised. … …”
9. Notice was issued by this Court on 09.01.2013 whereafter pleadings
have been exchanged and certain additional documents have also been
placed on record.
9.1. In the meantime, the notification dated 11.09.2011 and the
Bhatnagar Committee Report were challenged in the High Court in DB
Civil Writ Petition No. 13476 of 2012 and in other connected matters and
the challenge is still pending. By order dated 20.09.2016 it was observed:-
“Looking at the facts of the case we are of the view that
the writ petitions, i.e., Civil Writ Nos. 14176, 20799,
13476, 16694 of 2012, pending in the High Court of
Rajasthan should be decided finally at an early date,
preferably within three months from the date of
intimation of this order to the High Court.
Parties to the litigation shall appear before the High
Court on 30th September, 2016, so that the date for final
hearing can be fixed by the High Court on that day.”
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
22
9.2. To similar effect was the Order dated 05.12.2017 by which it was
observed:-
“We are informed that pursuant to our order dated
20.09.2016, Writ Petitions are listed before the
Rajasthan High Court after two weeks.
We request the High Court of Rajasthan to dispose of
the Civil Writ Nos.14176, 20799, 13476, 16694 of
2012 without further delay.”
9.3. In view of the fact that by Order dated 15.11.201712 a Bench of
three Judges of this Court had referred the matter to a larger Bench to
consider whether the law declared by this Court in M. Nagaraj7 needed to
be revisited, the Writ Petitions were deferred by the High Court.
9.4. The present Contempt Petitions were, therefore, adjourned vide
Order dated 03.04.2018 with following observations:-
“Post the contempt petitions after the report is received
from the High Court of Rajasthan on the disposal of
Writ Petition(C)No.20119 of 2012 and other connected
matters.
The parties are free to bring to the notice of this Court
once the matters are disposed of by the High Court.”
12 (2018) 17 SCC 261
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
23
10. A Constitution Bench of this Court, in Jarnail Singh and others
vs. Lachhmi Narain Gupta and others13 dealt with the matter while
answering the reference as aforesaid and observed:-
“23. This brings us to whether the judgment in
Nagaraj7 needs to be revisited on the other grounds that
have been argued before us. Insofar as the State having
to show quantifiable data as far as backwardness of the
class is concerned, we are afraid that we must reject
Shri Shanti Bhushan’s argument. The reference to
“class” is to the Scheduled Castes and the Scheduled
Tribes, and their inadequacy of representation in public
employment. It is clear, therefore, that Nagaraj7 has, in
unmistakable terms, stated that the State has to collect
quantifiable data showing backwardness of the
Scheduled Castes and the Scheduled Tribes. We are
afraid that this portion of the judgment is directly
contrary to the nine-Judge Bench in Indra Sawhney
(1)8
Jeevan Reddy, J., speaking for himself and three
other learned Judges, had clearly held:
“[t]he test or requirement of social and
educational backwardness cannot be applied
to the Scheduled Castes and the Scheduled
Tribes, who indubitably fall within the
expression “backward class of citizens”.”
(See SCC p. 727, paras 796 to 797.)
Equally, Dr Justice Thommen, in his
conclusion at para 323(4), had held as
follows: (SCC pp. 461-62)
“323. Summary
* * *
(4) Only such classes of citizens who are
socially and educationally backward are
qualified to be identified as Backward
Classes. To be accepted as Backward Classes
for the purpose of reservation under Article
13 (2018) 10 SCC 396
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
24
15 or Article 16, their backwardness must
have been either recognised by means of a
notification by the President under Article
341 or Article 342 declaring them to be
Scheduled Castes or Scheduled Tribes, or, on
an objective consideration, identified by the
State to be socially and educationally so
backward by reason of identified prior
discrimination and its continuing ill effects
as to be comparable to the Scheduled Castes
or the Scheduled Tribes. In the case of the
Scheduled Castes or the Scheduled Tribes,
these conditions are, in view of the
notifications, presumed to be satisfied.””
24. In fact, Chinnaiah14 has referred to the Scheduled
Castes as being the most backward among the
Backward Classes (see para 43). This is for the reason
that the Presidential List contains only those castes or
groups or parts thereof, which have been regarded as
untouchables. Similarly, the Presidential List of
Scheduled Tribes only refers to those tribes in remote
backward areas who are socially extremely backward.
Thus, it is clear that when Nagaraj7
requires the States
to collect quantifiable data on backwardness, insofar as
Scheduled Castes and Scheduled Tribes are concerned,
this would clearly be contrary to Indra Sawhney (1)8
and would have to be declared to be bad on this ground.
25. However, when it comes to the creamy layer
principle, it is important to note that this principle
sounds in Articles 14 and 16(1), as unequals within the
same class are being treated equally with other
members of that class. The genesis of this principle is
to be found in State of Kerala v. N.M. Thomas15. This
case was concerned with a test-relaxation rule in
promotions from lower division clerks to upper
division clerks. By a 5:2 majority judgment, the said
rule was upheld as a rule that could be justified on the
basis that it became necessary as a means of generally
14 E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 : (2008) 2 SCC (L&S) 329
15 (1976) 2 SCC 310 : 1976 SCC (L&S) 227
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
25
giving a leg-up to Backward Classes. In para 124,
Krishna Iyer, J. opined: (SCC p. 363)
“124. A word of sociological caution. In the
light of experience, here and elsewhere, the
danger of “reservation”, it seems to me, is
threefold. Its benefits, by and large, are
snatched away by the top creamy layer of
the “backward” caste or class, thus keeping
the weakest among the weak always weak
and leaving the fortunate layers to consume
the whole cake. Secondly, this claim is
overplayed extravagantly in democracy by
large and vocal groups whose burden of
backwardness has been substantially
lightened by the march of time and
measures of better education and more
opportunities of employment, but wish to
wear the “weaker section” label as a means
to score over their near-equals formally
categorised as the upper brackets. Lastly, a
lasting solution to the problem comes only
from improvement of social environment,
added educational facilities and crossfertilisation of castes by inter-caste and
inter-class marriages sponsored as a
massive State programme, and this solution
is calculatedly hidden from view by the
higher “backward” groups with a vested
interest in the plums of backwardism. But
social science research, not judicial
impressionism, will alone tell the whole
truth and a constant process of objective reevaluation of progress registered by the
“underdog” categories is essential lest a
once deserving “reservation” should be
degraded into “reverse discrimination”.
Innovations in administrative strategy to
help the really untouched, most backward
classes also emerge from such socio-legal
studies and audit exercises, if
dispassionately made. In fact, research
conducted by the A.N. Sinha Institute of
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
26
Social Studies, Patna, has revealed a dual
society among harijans, a tiny elite gobbling
up the benefits and the darker layers
sleeping distances away from the special
concessions. For them, Articles 46 and 335
remain a “noble romance” [As Huxley
called it in “Administrative Nihilism”
(Methods and Results, Vol. 4 of Collected
Essays).], the bonanza going to the “higher”
Harijans. I mention this in the present case
because lower division clerks are likely to
be drawn from the lowest levels of Harijan
humanity and promotion prospects being
accelerated by withdrawing, for a time,
“test” qualifications for this category may
perhaps delve deeper. An equalitarian
breakthrough in a hierarchical structure has
to use many weapons and Rule 13-AA
perhaps is one.”
(emphasis in original)
26. The whole object of reservation is to see that
Backward Classes of citizens move forward so that
they may march hand in hand with other citizens of
India on an equal basis. This will not be possible if only
the creamy layer within that class bag all the coveted
jobs in the public sector and perpetuate themselves,
leaving the rest of the class as backward as they always
were. This being the case, it is clear that when a court
applies the creamy layer principle to Scheduled Castes
and Scheduled Tribes, it does not in any manner tinker
with the Presidential List under Articles 341 or 342 of
the Constitution of India. The caste or group or subgroup named in the said List continues exactly as
before. It is only those persons within that group or
sub-group, who have come out of untouchability or
backwardness by virtue of belonging to the creamy
layer, who are excluded from the benefit of reservation.
Even these persons who are contained within the group
or sub-group in the Presidential Lists continue to be
within those Lists. It is only when it comes to the
application of the reservation principle under Articles
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
27
14 and 16 that the creamy layer within that sub-group
is not given the benefit of such reservation.
27. We do not think it necessary to go into whether
Parliament may or may not exclude the creamy layer
from the Presidential Lists contained under Articles
341 and 342. Even on the assumption that Articles 341
and 342 empower Parliament to exclude the creamy
layer from the groups or sub-groups contained within
these Lists, it is clear that constitutional courts,
applying Articles 14 and 16 of the Constitution to
exclude the creamy layer cannot be said to be thwarted
in this exercise by the fact that persons stated to be
within a particular group or sub-group in the
Presidential List may be kept out by Parliament on
application of the creamy layer principle. One of the
most important principles that has been frequently
applied in constitutional law is the doctrine of
harmonious interpretation. When Articles 14 and 16
are harmoniously interpreted along with other Articles
341 and 342, it is clear that Parliament will have
complete freedom to include or exclude persons from
the Presidential Lists based on relevant factors.
Similarly, constitutional courts, when applying the
principle of reservation, will be well within their
jurisdiction to exclude the creamy layer from such
groups or sub-groups when applying the principles of
equality under Articles 14 and 16 of the Constitution of
India. We do not agree with Balakrishnan, C.J.’s
statement in Ashoka Kumar Thakur16 that the creamy
layer principle is merely a principle of identification
and not a principle of equality.
28. Therefore, when Nagaraj7
applied the creamy layer
test to Scheduled Castes and Scheduled Tribes in
exercise of application of the basic structure test to
uphold the constitutional amendments leading to
Articles 16(4-A) and 16(4-B), it did not in any manner
interfere with Parliament’s power under Article 341 or
Article 342. We are, therefore, clearly of the opinion
that this part of the judgment does not need to be
16 Ashoka Kumar Thakur v. union of India, (2008) 6 SCC 1 : 3 SCEC 35
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
28
revisited, and consequently, there is no need to refer
Nagaraj7
to a seven-Judge Bench. We may also add at
this juncture that Nagaraj7
is a unanimous judgment of
five learned Judges of this Court which has held sway
since the year 2006. This judgment has been repeatedly
followed and applied by a number of judgments of this
Court, namely:
28.1. Anil Chandra v. Radha Krishna Gaur17 (twoJudge Bench) (see paras 17 and 18).
28.2. Suraj Bhan Meena v. State of Rajasthan1
(twoJudge Bench) (see paras 10, 50, and 67).
28.3. U.P. Power Corpn. Ltd. v. Rajesh Kumar18 (twoJudge Bench) [see paras 61, 81(ix), and 86].
28.4. S. Panneer Selvam v. State of T.N.19 (two-Judge
Bench) (see paras 18, 19, and 36).
28.5. Central Bank of India v. SC/ST Employees
Welfare Assn.20 (two-Judge Bench) (see paras 9 and
26).
28.6. Suresh Chand Gautam v. State of U.P.21 (twoJudge Bench) (see paras 2 and 45).
28.7. B.K. Pavitra v. Union of India22 (two-Judge
Bench) (see paras 17 to 22).”
10.1 The conclusion arrived at in para 36 of the decision was:-
36. Thus, we conclude that the judgment in Nagaraj7
does not need to be referred to a seven-Judge Bench.
However, the conclusion in Nagaraj7
that the State has
to collect quantifiable data showing backwardness of
the Scheduled Castes and the Scheduled Tribes, being
17
 (2009) 9 SCC 454
18 (2012) 7 SCC 1
19 (2015) 10 SCC 292
20 (2015) 12 SCC 308
21 (2016) 11 SCC 113
22 (2017) 4 SCC 620
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
29
contrary to the nine-Judge Bench in Indra Sawhney
(1)8
is held to be invalid to this extent.”
11. Thereafter, by way of Interlocutory Application No.17130 of 2019
a copy of order dated 05.10.2018 issued by the Government of Rajasthan
was placed on record. The relevant portion of said order was as under:-
“As per the opinion of Law Department in reference to
the judgment dated 09.02.2017 delivered by Hon’ble
Supreme Court in SLP No.2368/2011 B.K. Pavitra
V/s. Govt. of India, the notification dated 11.09.2011
is hereby clarified as under:-
As per the provisions of notification dated
11.09.2011 of Personnel Department, the
benefits of consequential seniority in
reservation in promotion for public servants
of SC/ST categories, can only be extended till
the achievement of the condition of adequacy
in promotion or till roster point is completed.
Once the fulfillment of roster point,
replacement theory will be applicable.
As per the principle laid down by Hon’ble
Supreme Court in above judgment dated
09.02.2017 and above provision provided in
notification dated 11.09.2011, in the matter
of promotion of public servants of Scheduled
Castes/Scheduled Tribes categories, where
adequacy of representation has been
achieved, the consequential seniority cannot
be given and the public servants of General
& OBC categories will regain their
consequential seniority and seniority lists
will be issued accordingly.
Hence all Recruiting Officers/HODs hereby
instructed to implement the above order word
by word.”
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
30
12. In affidavit dated 17.02.2019 filed on behalf of the State
Government following stand was taken in para 3 of the affidavit:-
“3. A clarification was sought to be issued by the State
Government vide Circular dated 05.10.2018.
However, the Circular dated 05.10.2018 was made
inoperative/stayed by the State Government
immediately after the issuance of the Circular dated
05.10.2018 in the month of October, 2018 itself. Thus
the circular of 05.10.2018 has never been acted upon.
The present government is seeking re-examine the
efficacy of the Circular dated 05.10.2018. It is
reiterated that the Circular of 05.10.2018 is
inoperative.”
13. We heard Mr. M. L. Lahoti, learned Advocate for the contempt
petitioner and Dr. Manish Singhvi, learned Senior Advocate for the alleged
contemnors.
It was submitted by Mr. Lahoti, learned Advocate that the directions
issued by this Court in Suraj Bhan Meena1 were not complied with; that the
Notification dated 11.09.2011 was in contempt of the directions issued by
this Court; that the stand taken in the affidavit dated 17.02.2019 was
completely incorrect and more than 50 inter-departmental orders had been
passed implementing Circular dated 05.10.2018; that in the light of Circular
dated 05.10.2018 adequacy level in RAC Cadre having been achieved the
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
31
contempt petitioner ought to be extended the benefit of regaining of seniority
along with all consequential benefits of reservation in promotion from
RAS23 to IAS24
.
In response, Dr. Singhvi, learned Senior Advocate submitted that
Notification dated 11.09.2011 was found to be in contempt of binding
directions and was specifically held by the High Court to be inoperative;
however, the view taken by the High Court was set aside by this Court; and
that the Notification dated 11.09.2011 cannot therefore be held to be in
contempt of the directions issued by this Court; that challenge to such
Notification and to the recommendations of the Bhatnagar Committee was
still pending in the High Court; and that one of the pending writ petitions
was that of the contempt petitioner himself.
14. The law declared by this Court in M. Nagraj7
, which was followed
in Suraj Bhan Meena1
is clear that in the absence of any quantifiable data
relating to the issue of backwardness and inadequacy of representation of
the concerned classes in public employment, no benefit of consequential
seniority could be extended. Therefore, in Suraj Bhan Meena1
, the
23 Rajasthan Administrative Service
24 Indian Administrative Service
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
32
Notifications dated 28.12.2002 and 25.08.2008 providing for consequential
seniority in promotion to the Members of the SC/ST communities were set
aside.
15. Since the decision in Suraj Bhan Meena1 was on the premise that
no such exercise was undertaken to acquire quantifiable data, the State
Government constituted the Bhatnagar Committee. The Committee went
into the issues and made certain recommendations based on which a
Notification was issued by the State Government on 11.09.2011. Whether
that amounted to contempt or not was a subject matter of discussion before
the High Court which, by its judgment and order dated 23.02.2012 found
said Notification to be not in compliance of binding directions and to be
invalid. The challenge in Salauddin2 was inter alia to the finding arrived at
by the High Court in its contempt jurisdiction and the submission advanced
by the learned Attorney General as recorded in paras 18 and 19 of the
decision in Salauddin2 was that in the absence of any substantive writ
petition challenging the same, said Notification could not have been
questioned in contempt jurisdiction. The decision in Salauddin2
set aside
the view taken by the High Court. Thus, the issuance of Notification dated
11.09.2011 was not found to be in contempt nor was it invalidated for being
non-compliant of any binding directions.
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
33
16. As a matter of fact, the directions issued by this Court in para 48
were clear that the State and its authorities were to act in terms of the report
of the Bhatnagar Committee in accordance with the decisions in M. Nagraj7
and Suraj Bhan Meena1
. The basic foundation of the present contempt
petitions projecting the issuance of Notification dated 11.09.2011 to be in
contempt of the directions issued by this Court, thus, does not survive. In
any case, challenge to said Notification and the report of the Bhatnagar
Committee is still pending consideration before the High Court where the
correctness and validity thereof will be gone into in accordance with law.
17. With the decision of this Court in Jarnail Singh13 the matter also
stands on a slightly modified footing. As concluded by this Court in Jarnail
Singh13 the conclusion in M. Nagraj7
that the State has to collect
quantifiable data showing backwardness of SC/ST, being contrary to the 9
Judges Bench decision in Indra Sawhney8
, was held to be invalid. The
challenge to the recommendations given by the Bhatnagar Committee and
the quantifiable data adverted to by the Committee will therefore have to be
seen by the High Court in the light of the directions issued by this Court in
Jarnail Singh13
.
18. It is, thus, clear that all these issues need to be gone into in a
substantive challenge and will be beyond the scope of contempt jurisdiction.
Contempt Petition (Civil)Nos.453-454 of 2012 in Civil Appeal Nos. 2504-2505 of 2012
Bajrang Lal Sharma vs. C.K. Mathew and ors.
34
The issuance of Notification dated 11.09.2011 was in exercise of powers
vested in the concerned authorities and if the approach and the exercise is
otherwise incorrect or wrong, the same can be tested and considered while
dealing with the substantive challenge but such issuance cannot be said to
be contumacious to invite any action in contempt jurisdiction.
19. In the circumstances, we see no reason to entertain these contempt
petitions any longer. These contempt petitions are directed to be closed.
We, however, request the High Court to consider taking up all the matters
where challenge has been made to the issuance of Notification dated
11.09.2011 and to the recommendations of the Bhatnagar Committee and
such allied issues as early as possible and dispose of the same preferably
within a period of six months from the date of this order.
………………………………J.
[Uday Umesh Lalit]
………………………………J.
[Indira Banerjee]
………………………………J.
[M.R. Shah]
New Delhi;

January 23, 2020.

In the absence of Evidence of his presence and participation in the offence - mere recovery of blood stained lathi at the instance of Accused , not held him as Guilty of offence. Even though alibi was not accepted - lack of corboration of Accused participation in the offence along with other accused as only one witness stated accused name in the re examination - even though non blood stained lathi was recovered at the instance of this accused - Still he is entitled for benifit of doubt. So far as the appellant Khemuram (A-8) is concerned, we find it difficult to endorse his conviction. Though one name ‘Hemu’ has occurred in the reexamination of PW-5 Prahlad Yadav but not specifically the name of this accused Khemuram8 . The prosecution has not taken any steps to clarify if there was any discrepancy in regard to the statement of this witness PW-5. No other eye-witness has named this accused Khemuram as one of the members of the mob that assaulted the deceased Govind Singh nor any other act of this accused has come on record which could connect him with the assembly in question and the place of incident. Though the lathi recovered at the instance of this accused (vide Ex. P/19) allegedly carried blood-stains but his conviction cannot be based on this recovery alone. For want of cogent and convincing evidence about his presence at the scene of crime and his participation in assaulting the deceased, in our view, this accused Khemuram (A-8) is entitled to the benefit of doubt and the findings in his relation cannot be sustained. As regards the appellant Lakhan (A-13), again, it is noticed that PW-5 Prahlad Yadav stated his name in the re-examination but then, no other eyewitness named him as one of the members of the mob that assaulted the deceased Govind Singh nor any other act of this accused has come on record which could connect him with the assembly in question and the place of incident. Thus, there had been want of corroboration of the statement of PW-5 by other witnesses in regard to the involvement of this accused Lakhan. The alleged weapon lathi said to have been recovered at the instance of this accused (vide Ex. P/26) is also not shown carrying blood-stains. Though this accused also led in defence evidence in the form of DW-3 Barsan who deposed that this accused was in other village Bhururenga and left his village on 15.10.1998 at about 5.00-5.30 and that the distance of the two villages was about 15 kms but then, there had been discrepancies regarding the dates and time in his testimony and no such specific plea of alibi was taken by this accused in his defence version. However, even if the defence evidence in his regard is not accepted, as noticed, a reasonable doubt still remains if this accused Lakhan was a part of the assembly in question. In the given circumstances, we are of the view that this accused Lakhan (A-13) is also entitled to benefit of doubt. However, in our view, the prosecution has failed to prove its case beyond reasonable doubt against the accused-appellants Khemuram (A-8) and Lakhan (A-13), who deserve to be acquitted on benefit of doubt.

In the absence of Evidence of his presence and participation in the offence - mere recovery of blood stained lathi at the instance of Accused , not held him as Guilty of offence.

Even though alibi was not accepted - lack of corboration of Accused participation in the offence along with other accused as only one  witness stated accused name in the re examination - even though non blood stained lathi was recovered at the instance of this accused - Still he is entitled for  benifit of doubt.
So far as the appellant Khemuram (A-8) is concerned,
we find it difficult to endorse his conviction. Though one name ‘Hemu’ has occurred in the reexamination of PW-5 Prahlad Yadav but not specifically the name of this accused Khemuram8 . The prosecution has not taken any steps to clarify if there was any discrepancy in regard to the statement of this witness PW-5. No other eye-witness has named this accused Khemuram as one of the members of the mob that assaulted the deceased Govind Singh nor any other act of this accused has come on record which could connect him with the assembly in question and the place of incident. Though the lathi recovered at the instance of this accused (vide Ex. P/19) allegedly carried blood-stains but his conviction cannot be based on this recovery alone. For want of cogent and convincing evidence about his presence at the scene of crime and his participation in assaulting the deceased, in our view, this accused Khemuram (A-8) is entitled to the benefit of doubt and the findings in his relation cannot be sustained. 

As regards the appellant Lakhan (A-13), again, it is noticed that PW-5 Prahlad Yadav stated his name in the re-examination but then, no other eyewitness named him as one of the members of the mob that assaulted the deceased Govind Singh nor any other act of this accused has come on record which could connect him with the assembly in question and the place of incident. Thus, there had been want of corroboration of the statement of PW-5 by other witnesses in regard to the involvement of this accused Lakhan. The alleged weapon lathi said to have been recovered at the instance of this  accused (vide Ex. P/26) is also not shown carrying blood-stains. Though this accused also led in defence evidence in the form of DW-3 Barsan who deposed that this accused was in other village Bhururenga and left his village on 15.10.1998 at about 5.00-5.30 and that the distance of the two villages was about 15 kms but then, there had been discrepancies regarding the dates and time in his testimony and no such specific plea of alibi was taken by this accused in his defence version. However, even if the defence evidence in his regard is not accepted, as noticed, a reasonable doubt still remains if this accused Lakhan was a part of the assembly in question. In the given circumstances, we are of the view that this accused Lakhan (A-13) is also entitled to benefit of doubt.
However, in our view, the prosecution has failed to prove its case beyond reasonable doubt against the accused-appellants Khemuram (A-8) and Lakhan (A-13), who deserve to be acquitted on benefit of doubt.


REPORTABLE
 IN THE HON’BLE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1813 OF 2017
DULESHWAR & ANR. …APPELLANT(S)
 VS.
THE STATE OF M.P. (NOW CHHATTISGARH) …RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 1815 OF 2017
AND
CRIMINAL APPEAL NO. 1814 of 2017
JUDGMENT
Dinesh Maheshwari, J.
Introductory with brief outline
1. These three appeals are directed against the common judgment and
order dated 12.09.2014, as passed by the High Court of Chhattisgarh at
Bilaspur in Criminal Appeal No. 3336/1999 whereby, the High Court has
upheld the judgment and order dated 26.11.1999 by the Additional Sessions
Judge, Dhamtari, Chhattisgarh in S.T. No. 114/1999, convicting and
sentencing the accused-appellants for multiple offences, including those
1
punishable under Sections 147, 148, 302/149 and 325 of the Indian Penal
Code (‘IPC’).
2. In a brief outline of the material aspects, it could be noticed that in the
present case, the appellants, seven in number, being Accused
Nos.1,2,5,7,8,12 and 131
 were tried together with several other co-accused
persons for the offences relating to the two incidents which took place in
village Kodebod, police station Kurud, district Dhamtari (M.P. – now
Chhattisgarh) on 15.10.1998: one at about 4.30-5.00 p.m., in which, the
Prosecution Witness No. 1 Dhanwaram2
 sustained grievous injuries; and
another at about 5.30 p.m., which led to the death of one Govind Singh. Out
of the 18 accused persons tried in this matter, 8 were acquitted by the Trial
Court, essentially after finding that the charges against them were not proved
beyond reasonable doubt. However, Bharosaram(A-1), Duleshwar(A-2),
Chintaram(A-4), and Vivekanand(A-9) were convicted for the offence under
Section 325 IPC for causing grievous hurt to PW-1 Dhanwaram. Moreover,
Bharosaram(A-1), Duleshwar(A-2), Chintaram(A-4), Bhanjan Singh(A-5),
Khemraj(A-6), Keshav Prasad(A-7), Khemuram (A-8), Nand Kumar (A-12) and
Lakhan(A-13) were convicted for the offences under Sections 147,148, 302
and 302/149 IPC for forming unlawful assembly, rioting with deadly weapons
and in furtherance of common object, causing death of Govind Singh by
inflicting several injuries. The convicted accused persons were awarded
1 Accused Nos. 2 and 12 are the appellants in Criminal Appeal No. 1813 of 2017; Accused Nos. 1, 8
and 13 are the appellants in Criminal Appeal No. 1814 of 2017; and Accused Nos. 5 and 7 are the
appellants in Criminal Appeal No. 1815 of 2017. Hereinafter, the respective appellants and other coaccused persons are also referred to as A-1, A-2 et al.
2 Hereinafter the Prosecution Witnesses are also referred to as PW-1, PW-2 et al.
2
varying sentences, including that of life imprisonment for the offence under
Section 302/149 IPC. Except Vivekanand (A-9)3
, other 9 accused persons
preferred an appeal to the High Court against their conviction and sentence. A
revision petition was also filed by the complainant against acquittal of the
remaining accused persons. The High Court, however, found no ground to
interfere and hence dismissed the appeal as also the revision petition and
thereby, affirmed the decision of the Trial Court. As against the decision of the
High Court, Bharosaram(A-1), Duleshwar(A-2), Bhanjan Singh(A-5), Keshav
Prasad(A-7), Khemuram(A-8), Nand Kumar(A-12) and Lakhan(A-13) have
preferred these appeals. However, no such appeal is preferred on behalf of
the other convicted co-accused namely, Chintaram (A-4) and Khemraj (A-6).
2.1. Essentially, the conviction of the appellants under Section 302/149 has
been questioned in these appeals; and the principal ground of challenge is
that there is no cogent evidence about their involvement in the crime in
question. The reliability of evidence led by the prosecution has also been
assailed in these appeals apart from other contentions concerning the
surrounding factors. The relevant facts and background aspects could be
noticed, keeping in view the points arising for determination in these appeals.
The relevant facts and background
3. The prosecution case has been that a dispute in relation to the fields
and demarcation of ridge was going on between Biselal Sahu, brother of
Mangalram (A-14) and Dhanwaram (PW-1), brother of the deceased; and a
3 Vivekanand (A-9) was convicted only for the offence under Section 325 IPC and, as he was found
to be minor on the date of incident, was awarded lesser sentence of one year and three months.
3
civil case related to this dispute was also pending. Due to the enmity because
of this dispute, on 15.10.1998 at around 4.30-5.00 p.m., the accused persons
Bharosaram (A-1), Duleshwar (A-2), Chintaram (A-4), Khemraj (A-6),
Vivekanand (A-9), and Kedarnath (A-18) assaulted Dhanwaram (PW-1) with
different weapons and caused him injuries. Parvati Bai (PW-6), who was
passing by, saw the accused persons assaulting Dhanwaram; she ran
screaming and informed Khilawan (PW-7), son of the deceased, about the
incident that she had witnessed. Khilawan went to the place of incident with
Ram Dhruv (PW-17) and found Dhanwaram lying unconscious on the ground.
Khilawan and Ram Dhruv took Dhanwaram home. The accused persons, after
assaulting Dhanwaram, went in search of Govind Singh, brother of
Dhanwaram.
3.1. According to the prosecution, on the same day i.e., on 15.10.1998,
another incident took place at around 5.30 p.m. in which Bharosaram,
Chintaram, Khemraj, Bhanjan Singh, Khemuram, and other accused persons
assaulted Govind Singh near Kalley Bridge and inflicted upon him varying
injuries. When Santosh Kumar (PW-2) and Prahlad Yadav (PW-5) tried to
intervene in the matter, they were threatened by some of the accused persons
to stay away and else, they would also be done away with; and therefore, they
stepped back. Thereafter, two of the accused persons dragged the deceased
by his legs while the others kept on beating him with weapons; the deceased
4
was dragged to a faraway place towards the canal, where he succumbed to
his injuries.4
3.2. The report relating to the incidents was made to the police by Khilawan
(PW-7) at about 7.00 p.m. who narrated the aforesaid incident and alleged
that after hiring a jeep and upon search, he found the dead body of his father
across Kalley Canal with many injuries on his head, face, nose and whole of
the body. The complainant alleged that Mukesh Nirmalkar, Duleshwar,
Chintaram, Bhanjan, Khemraj, Keshav Prasad, Khemuram, Bharosaram,
Vivekanand, Vasudev, Chemanand, Garibram and some other persons did
marpeet with lathi danda to his father Govind Singh and uncle Dhanwaram
due to which, Govind Singh died and Dhanwaram sustained serious injuries.
On this report, FIR No. 186/1998 came to be registered and investigation was
undertaken.
3.3. During the investigation, police obtained the post-mortem report of the
deceased which confirmed that he succumbed to the injuries inflicted upon
him. The injury report of Dhanwaram was also obtained. The site plan was
prepared; tangiya, blood stained lathis, dandas, baniyans, lungis and shirts
were seized and the statements of the witnesses were recorded. As per the
chemical examination report of Assistant Chemical Examiner, Regional FSL
Raipur, some of the seized weapons and clothes were found to contain blood
4 It appears that on the same day and around the same time, but before the incident resulting in the
death of Govind Singh, yet another incident took place involving the deceased Govind Singh and
Mangalram (A-14). As per the statement of Tikuram Yadav (PW-16) at around 4.30 p.m., the
deceased Govind Singh came to his farm on bicycle of Mangalram (A-14) with injuries on hand and
head and on being asked by PW-16, the deceased told him that Mangal Patwari (A-14) had attacked
him with sword. On the other hand, Mangalram (A-14) lodged a report at the police station alleging
that Govind Ram attacked him with sword. On this report, FIR No. 185/1998 was registered.
5
stains. After completion of investigation, the charge sheet was filed in the
Court of Special Judge, Schedule Tribe Prohibition of Atrocities, Raipur
against 18 accused persons for causing rioting while being armed with deadly
weapons, for causing murder of Govind Singh, and for attempting to cause
murder of Dhanwaram. However, by the order dated 04.02.1999, the learned
Special Judge held that the matter was not to be proceeded in the Special
Court. Thereafter, the charge sheet was filed in the Court of Chief Judicial
Magistrate, Dhamtari; and being sessions triable matter, the same was
committed to the Sessions Court, Raipur and was ultimately tried in the Court
of Additional Sessions Judge, Dhamtari in S.T. No. 114 of 1999.
4. In the trial, the prosecution examined 21 witnesses being PW-1
Dhanwaram (the injured); PW-2 Santosh Kumar, PW-3 Bhuwan, PW-4
Rajesh, PW-5 Prahlad Yadav, PW-9 Hiradhar and PW-16 Tikuram Yadav as
being the alleged witnesses/eye-witnesses to the assault of Govind Singh;
PW-6 Parvati Bai, as being eye-witness to the assault of Dhanwaram; PW-7
Khilawan (the informant); PW-8 Daulal, PW-10 Nand Kumar and PW-11
Bhagatram, said to be the labourers working in the field of Tikuram who
allegedly saw the deceased Govind Singh in injured condition before the
assault in question; PW-12 Chandkishore, PW-13 Punarad Ram, PW-14
Reshamlal and PW-15 Dayaram as being the witnesses in the investigation
proceedings relating to preparation of inquest report or seizure memo or site
plan; PW-17 Ram Dhruv, the nephew of Khilawan who accompanied him to
police station; PW-18 Dr. Pradeep Hishikar, who conducted post-mortem; PW6
19 Dasrath Deycate Deputy Superintendent of Police, who recorded the
statements of some of the witnesses; PW-20 V.S. Urmaliya, the Investigating
Officer; and PW-21 Dr. V. Chaterjee, who examined the injured Dhanwaram
and prepared his injury report5
.
The evidence
5. Having regard to the contentions urged and questions involved, we may
briefly take note of the relevant aspects of the evidence of material witnesses
examined in this matter.
5.1. The injured witness PW-1 Dhanwaram, while supporting the
prosecution case, inter alia, stated that he fell prey to the beatings of Kedar,
Mangal, Khemraj, Duleshwar, Vivekanand and Bharosa. PW-6 Parvati Bai, the
eye-witness to the assault on Dhanwaram stated that the accused Mangal,
Gareeb, Chintaram, Bhanjan, Bharosa, Narad, Keshav, Lakshman and their
sons and daughter assaulted PW-1 Dhanwaram.
5.2. PW-2 Santosh Kumar, the eye-witness to the incident where Govind
Singh was assaulted stated that himself and Angad, Bhuvan Singh (PW-3),
Rajesh (PW-4) and Prahlad Yadav (PW-5) were present near the place of
incident where the accused persons, armed with danda, tangiya etc., started
arguing with the deceased Govind Singh; and when the witnesses tried to
intervene, they were threatened by the accused persons to keep away. He
also alleged that Bharosa and Chintaram held both the legs of the deceased
5 It may be noticed that PW-8, PW-9, PW-13 and PW-14 were declared hostile.
7
and dragged him towards canal while the other accused persons kept on
beating him. The relevant portion of the testimony of PW-2 reads as under: -
“…. At that time about 17-18 accused persons came from canal side.
All were carrying stick (danda). Someone carried hatchet as well. I
did not see any other weapon. They came and started argument
with Govind Singh. Someone among the accused person said that
uncle was assaulted and quarrelled. They told us to move away.
They told that Govind Singh had to be killed, on which all person
who were standing with me moved a side.
Thereafter, all the accused person together started assaulting by
stick. Due to assault Govind Singh died on the place of occurrence.
At the beginning we had tried to intervene but later on we did not try
to intervene. Bharosa Ram and Chinta caught both legs of Govind
and dragged him, others were going beating him….”
5.3. PW-3 Bhuwan stated that the accused persons came towards Kodebod
Canal, stopped near culvert and asked about Govind Singh; and though he
expressed want of knowledge, the accused persons saw Govind Singh near
culvert and assaulted him. This witness further stated that during the said
attack, when Govind fell down, he was dragged by holding his legs and while
being dragged, the other accused persons kept on beating him. In crossexamination, this witness stated that he did not know the names of the
accused persons and he did not disclose their names to the police nor could
say who assaulted on which part of the deceased. The relevant part of the
testimony of PW-3 reads as under: -
 “.…. I was near the culvert, it was 5:00pm, Santosh, Prahlad,
Rajesh and Nandlal were also with me. At that time accused person
came towards Kodebode canal and stopped near the culvert. They
asked me about Govind’s address. I replied, I do not know. At the
same time they saw Govind near the culvert. They ran towards
Govind, started assaulting him. All the accused person carried lathi
8
in their hand. They were assaulting Govind with lathi itself. Due to
assault Govind fell down, at that time two persons caught his leg and
dragged him towards canal, other were going beating him.”
xxx Cross-examination
“ I do not know name of any of the accused person. In my police
statement I did not tell the name of any of the accused person. Who
assaulted on which part of the deceased, I can not tell. It is true that
in my police statement I stated that 20-25 people came with lathi….”
5.4. PW-4 Rajesh stated that on the date of incident, in the evening, while
fishing in canal he heard the noise of quarrel whereupon he ascended the
boundary of the canal and saw 15-20 persons attacking Govind Singh; two
persons were dragging Govind Singh by legs across the canal while others
kept on beating him; one or two persons were carrying tangiya and rest were
holding lathi. The witness also stated that Santosh and Prahlad went to
intervene but were asked not to intervene. This witness further stated in crossexamination that he did not know the names of accused persons and that he
did not intervene.
5.5. Prahlad Yadav, examined as PW-5, is the star witness in this case who
narrated the incident of assault on Govind Singh and specifically stated the
names of some of the accused persons. Being the material witness whose
testimony has largely formed the basis of conviction, the material parts of his
deposition could be usefully extracted as under:
“… On 15.10.98 at 5.20 pm. I was near the Kulley Bridge. Santosh,
Heeradhar, Bhuwan, Nandlal and Rajesh were with me. At the very
moment accused persons came towards canal and road side.
Govind Singh was also standing near the Kulley Bridge. Accused
persons abused him. They were saying that Govind Singh has come
after fighting. He has to be killed and they started assaulting. All the
accused person carried lathi. They assaulted by danda. When I went
9
there and forbade them to fighting. They stopped fighting.
Thereafter, Bharosa, Nand, Chinta, Bhanjan came to me and told
“You move away, otherwise you will be killed” Then I moved away
from there. Govind Singh fell down, Bharosa caught his one leg and
Chinta caught another leg, they dragged Govind to Kodebode from
canal and other were going by beating him. I followed them from
some distance. The accused persons dragged Govind Singh for 2
Km. Thereafter, I returned home. Govind Singh had died…”
xxx Cross-examination
“…Except Mangal, I saw all the accused person at the time of
incident. It is true that Kalley turning is 2½ Km. away from
Kodebode. The barn of Tikaram is 1½ Km. away from Kalley turning.
It is wrong to say that the matter of dragging by the leg by Bharosa
and Chinta is being wrongly stated by me. The sticks hit the
deceased at one time therefore I cannot tell which accused hit him
on which part. I stated name of 7-8 persons. The quarrel went on for
10 minutes. I noted down the time and date of the incident. At
present it is not with me. It is wrong to say that today the statement
was read over to me. At the time of incident Santosh and I forbade
them to fight. The accused person reached on Kalley Bridge
altogether but they came from different direction...”
Re-examination
“I stated name of Bharosa, Chinta, Bhanjan, Gareeb, Lakhan,
Khemraj, Hemu, Keshav and Nand. I recognize the remaining
accused person by face. I know such persons by name only.
xxxRe-cross-examination
I do not know if more persons named Chintaram, Keshav may be
there. I know that Keshav is tailor but I did not state this to the
police……..
At the time of recording of my police statement Ex-D/5 I stated that
the accused persons came at the place of incident from different
direction. I can not tell which of the accused came from which
direction. The witness himself stated that all the accused persons
gathered at the place of incident.
…… It is true that my field is adjacent to the field of Chintaram and
Gareeb Ram. It is wrong to say that I want to purchase their fields
therefore I am implicating them….”
10
5.6. PW-9 Hiradhar partly narrated the prosecution story but did not support
the entire prosecution case and hence, was declared hostile. However, before
being declared hostile, this witness, inter alia, stated as under:
“I know the accused persons present in the court. I also know
deceased Govind Singh. … I was taking tea with Kheduram in a
hotel near the Kalley Bridge. At that time Angad Sahu who belong to
Kode bode came there and asked me if I had seen Govind. I told
him I did not see him. At the very moment I saw that Govind came
from somewhere and stood there. At that time I went near Govind
and told that Angad was searching him. He did not give any reply.
Seeing blood on his cloths I asked him how his clothes had got
stained with blood. What happened? He did not give any reply.
At the very moment Santosh Satnami came and stood before
Govind Singh, Prahlad also came there. When we stood there at
that time accused persons who were resident of my village reached
there. I asked Khemraj what happened, then Khemraj told that
Govind has come beating Patwari, Duleshwar, the son of Patwari
also stated the same. Santosh and Prahlad told them to stop don’t
do anything here, saying that “we will not stop” the accused persons
proceeded. Khemraj and Duleshwar gave one-two lathi blow to
Govind due to which he fell down on the earth. Seeing this I got
afraid and went near Kheduram who was present in shop. He told
lets move from here and immediately we moved from there.
Thereafter, what happened I did not see.
xxxCross-examination for accused
…I stated the matter of Govind being interrogated by Angad to the
police, if police did not record I can not tell the reason. I saw blood
stain on the clothes of the deceased, I stated this to the police. I did
not see any injury on the body of Govind. I stated to police the
matter of being told by Khemraj and Duleshwar about Govind Singh
beating the Patwari and coming. I stated that Khemraj and
Duleshwar assaulted Govind Singh by lathi to the police. If police did
not record the statement as per my version I can not tell the reason.
I did not see Mangalram, Narad, Laxman, and Kedar there. I did not
see even Lakhan committing marpit. …..”
5.7. PW-16 Tikuram Yadav stated that at about 4:30 p.m., Govind Singh
came to his barn on the bicycle belonging to Mangal Patwari and he saw
11
injuries on the persons of Govind Singh who said that Mangal Patwari had
assaulted him by sword. According to this witness, Govind Singh demanded
two hundred rupees which he did not give and thereafter, Govind Singh
proceeded towards bus stand. The witness further stated that later on, he saw
the assault on Govind Singh from a faraway place and, therefore, he was
unable to recognize the assailants; and later on, he got to know from his
locality that deceased Govind Singh was assaulted by Bharosa, Chinta, Garib
and their friends.
5.8. PW-8 Daulal, PW-10 Nand Kumar and PW-11 Bhagatram saw Govind
Singh in injured condition after the alleged attack by Mangalram on him. PW13 Punarad Ram and PW-14 Reshamlal had been the witnesses to seizure
proceedings in Ex.P/13 to P/27. They were declared hostile. While admitting
their signatures Ex.P/13 to P/27, they stated that they were shown sticks etc.
but were not told from whom they were seized.
5.9. PW-18 Dr. Pardeep Hishikar conducted post-mortem on the body of the
deceased Govind Singh. The description in the post-mortem report regarding
the injuries on the person of deceased Govind Singh had been as under-:
“1. Two contusions over chest like chain mark size of each (a)
5”x 1” (b) 4” x 1”.
2. Contusions over abdomen colour brownish blackish size of
them (a) size of two contusions 5” x 1” (b) size of two
contusions 3” x ½” transverse (c) two contusion size 3” x ½”
transverse (d) one contusion size 8” x 1” vertical.
3. Contusions over medial aspect of right thing colour blackish
brownish sizes (a) 7” x ½” (b) 5” x ½” (c) 2” x ½” (d) 2” x ½”
12
4. Contusions over lethal aspect, right thing, blackish brownish
colour.
5. Contusions over front of knee size 4” x 2” blackish brownish
colour.
6. Lacerated wound over base of 2nd and 3rd toe left side 1cm
x ½ cm x ½ cm clotted blood ++
7. Contusion over front of knee left size 1cm x 1cm.
8. Lacerated wound over left wrist size 1” x ½” x ½” bone deep
fracture lower third radius ulna left side.
9. Fractured proximal phalanx index and middle finger left and
fracture 2nd and 4th metacarpal bone left side.
10. Contusion dorsal aspect forearm size 1” x 1” and abrasion
back of left elbow size 4 cm x 4 cm.
11. Two lacerated wound over dorsal aspect right wrist sizes of
each 1cm x 1cm x 1cm. Fracture lower third radius.
12. Fracture proximal phalanx middle and ring finger and fracture
of 2nd and 3rd metacarpal right ulna.
13. Abrasion dorsal aspect elbow size 5cm x 4cm colour pinkish
brownish.
14. Lacerated wound over right side face over cheek size 3 cm x
1 cm x 1 cm.
15. Lacerated wound over right side face over cheek size 3 cm x
1 cm.
16. Contusion left side face size 3 cm x 2 cm colour blackish
brownish.
17. Lacerated wound mid portion of nose size 3 cm x ½ cm x ½
cm. Fracture of nasal bone.
18. Lacerated wound over scalp right parietal region size 3” x ½”
x ½” liner fracture over right parietal bone.”
This witness opined that the cause of death was shock, which may be
due to sudden rupture of liver and fracture of ribs of right and left sides; and
that the death was homicidal in nature.
6. On the other hand, the accused persons denied their involvement in the
crime in question in their statements under Section 313 Code of Criminal
13
Procedure, 1973 (CrPC) and examined 5 witnesses in defence, being DW-1
Latkhor who accompanied A-14 Mangalram to police station; DW-2 Dilip
Kumar, DW-3 Barsan, DW-4 R.L. Chandrakar and DW-5 Dinesh Kumar in
relation to the plea of alibi of A-12 Nand Kumar, A-13 Lakhan, A-18 Kedar and
A-17 Narad respectively.
 The findings of the Trial Court – as affirmed by the High Court
7. Having taken the evidence and having heard the parties, the Trial Court
framed as many as six points for determination in this case which read as
under:-
“1) Whether Govind Singh Netam has been murdered?
2) Whether attempt has been made to commit murder of
Dhanwaram Netam?
3) Whether the accused persons have committed the said act
by forming an unlawful assembly and committing riot and
abetted the commission of aforesaid act in furtherance of
common intention?
4) Whether accused persons had intention to commit murder of
Govind Singh and Dhanwaram?
5) Whether accused persons are guilty of rioting being armed
with deadly weapons?
6) If yes, then punishment.”
 7.1. In its judgment and order dated 26.11.1999, the Trial Court carried out
in-depth analysis of the prosecution evidence including the testimony of
injured witness PW-1 as also of the other witnesses, particularly the
witnesses to the incidents in question being PW-2, PW-3, PW-4, PW-5, PW-6,
PW-9, PW-16 as also the medical officers PW-18 and PW-21. The Trial Court
also examined the evidence adduced by the accused persons and thereafter,
14
found the prosecution case proved beyond reasonable doubt against some of
the accused persons including the present appellants but not in relation to all
the accused persons. The conclusions of the Trial Court, as occurring in
paragraphs 44 to 48 of the judgment dated 26.11.1999 could be usefully
reproduced as under:
“44…. There is no proof of intention to cause death of Dhanwaram
because the injuries sustained by Dhanwaram were found on his
palm, right side of head, left arm, jaw and back out of which fracture
was found in jaw, hand and wrist. No serious injury was found on
any vital part of the body. Therefore the aforementioned injuries
were not sufficient in the ordinary course of circumstances to cause
the death of Dhanwaram. In the evidence of Dhanwaram PW/1 there
is no such statement that the accused persons wanted to kill him at
the time of the incident….. According to the aforesaid, there is
evidence that after causing injury the accused persons left from the
place. Therefore, in this circumstance only this conclusion can be
drawn that the intention of the accused Bharosaram, Chintaram,
Duleshwar and Vivekanand was merely to inflict injuries on
Dhanwaram. It is proved that Dhanwaram is severely injured and the
same is knowingly or intentionally committed by the accused
persons that on attacking Dhanwaram, he will be injured. Therefore,
they have committed this act voluntarily. Hence, accused
Bharosaram, Chintaram, Duleshwar and Vivekanand voluntarily
caused grievous hurt to Dhanwaram by doing maarpet…
45. The evidence with regard to rioting armed with deadly weapons
is considerable. The incident of causing death of Govind Singh is
considered as riot. The witness of incident Santosh PW/2 stated
that one of the accused was having a tangiya. Bhawan Singh PW/3
stated that all accused were having laathi. Rajesh PW/4 stated that
1-2 persons were having tangiya and all the others were having
laathis. Prahlad PW/5 did not make any specific statement in this
regard. Heeradhar PW/9 stated that only laathis were used. There
is no evidence of using sword by any accused and no injury inflicted
by any sharp weapon sword or tangiya is found on the body of the
deceased. Therefore, it can be concluded that all the accused
persons were laced with laathis. Whether laathi is dangerous
weapon or not, it can be considered under the circumstances in
which it is used. As in the case in hand, by the use of laathis such
injuries were inflicted by which death of Govind Singh was caused,
hence, it appears that the accused possessed laathis for the
purpose of causing grievous hurt. Hence it is proved that the named
15
accused persons being members of unlawful assembly committed
riots by keeping laathi as dangerous weapons and caused death of
Govind Singh.
 46. After considering the aforesaid evidence and all the other
circumstances, it is concluded that the accused no. 1 Bharosaram,
no. 2 Duleshwar, no. 4 Chintaram, no. 5 Bhajan Singh, no. 6
Khemraj, no. 7 Keshavprasad, no. 8 Khemuram, no. 12 Nand
Kumar, no. 13 Lakhan on 15/10/1998 at around 5 PM by forming
unlawful assembly laced with laathis as dangerous weapons,
committed riot and whose common object was to cause death of
Govind Singh and in furtherance of their common objective, the
death of Govind Singh has been caused near Kalle Bridge by each
of the accused by inflicting severe inuries with laathis. Hence, the
offence under Sec. 147, 148, 302 and 302 read with 149 of IPC is
found to be proved against the aforesaid accused persons.
47. The charge under Sec. 307 of IPC is not proved, but the
circumstances under the aforesaid charge which have been brought
on record prove a lesser offence under Sec. 325 of IPC. Such
conviction can be ordered under under Sec. 222 of CrPC. Hence,
the accused Bharosa, Chintaram, Duleshwar and Vivekanand are
held guilty for the offence under Sec. 325 of the IPC for causing
grievous hurt to Dhanwaram.
48. In the case in hand, no charge has been proved against rest of
the accused persons namely, Mukesh Nirmalkar, Vasudev,
Chemanand, Mangalram, Gareeb ram, Lakshman Singh, Naradram
and Kedarnath. Therefore, all the above accused persons are
acquitted for all charge leveled against them under Sec. 147, 148,
302 or 302 read with 149, 307 or 307 read with 149 of IPC. The
accused persons amongst the aforesaid who are in custody be
released forthwith if not required in any other case and their bail
bonds stands cancel.”
7.2. As noticed, the convicted accused persons, except Vivekanand (A-9),
were awarded varying sentences, including that of life imprisonment.
Vivekanand (A-9) was found to be minor at the time of incident and he was
sentenced to one year and three months while noticing that he had already
undergone the sentence for a period of 405 days.
8. Against the aforesaid order of conviction, the appellants and other
convicted accused preferred Criminal Appeal No. 3336 of 1999 before the
16
High Court, whereas the complainant preferred a Criminal Revision No. 517 of
2000 against the acquittal of the other accused persons. While passing the
common judgment and order dated 12.09.2014, the High Court, after dealing
with the contentions urged on behalf of the appellants herein and the coaccused, affirmed the decision of the Trial Court and held that no defence had
been taken by the accused persons that they had gathered at the place of
occurrence for some purpose other than assaulting the deceased. Further, no
evidence was found against the acquitted accused persons. Hence, the
appeal as also the revision petition were dismissed. The High Court, inter
alia, observed and held as under: -
“23. True it is that every offence committed by a member of an
unlawful assembly will not be necessarily ascribed to or vicariously
fastened upon every other member of that assembly with the aid of
Section 149 of IPC. The likelihood of causing of death by the nature
of the actions of the assembly must be show to be within the
knowledge of member who is to be made vicariously liable for the
death. Such knowledge may reasonable be collected from the
nature of the assembly, arms of behaviors at or before the scene of
action. In the present case, there is evidence that accused No.3
Mukesh was saying that he would definitely burst two firecrackers
and that there was pre-planning of the accused/appellants for killing
two person. Furthermore, no defence has been taken by the
accused/appellants that they had gathered at the place of
occurrence for some purpose other than assaulting the deceased.
There is enough evidence to show that the accused/appellant were
having inimical relation with the deceased party, they all were
searching him for beating, they arrived at the spot at the same time,
though from different directions, waylaid the deceased and started
beating him. Thereafter, while the deceased was being dragged by
accused no. 1 Bharosaram and accused no. 4 Chintaram by holding
both his legs, he was being beaten by the other accused/appellants.
24. From the facts and the evidence adduced by the prosecution, it
is apparent that all the accused/ appellants had reached the place of
occurrence duly armed with weapons. If this is the manner in which
the accused/ appellants had come to the spot, it can not be said that
they had not formed an unlawful assembly within the meaning of the
17
said expression as appeared in Section 141 of IPC. While
membership of an unlawful assembly itself is an offence under
Section 143 of IPC, use of force by members of unlawful assembly
gives rise to the offence of rioting which is punishable either under
Section 147 or 148 of IPC. The availability of arms in the hands of
the accused/ appellants and use of them has clearly been
established by the prosecution not only by oral evidence but also by
medical evidence, according to which as many as 18 injuries were
found on the body of the deceased. Thus considering the evidence
of the eyewitnesses, including injured eyewitness PW-1
Dhanwaram, as well as the medical evidence, the number and
nature of injuries caused to the deceased Govind as well as PW-1
Dhanwaram, the manner in which they were assaulted resulting in
death of Govind, it is quite apparent that common object of their
unlawful assembly was to commit murder of the deceased and to
voluntarily cause grievous hut to PW-1 Dhanwaram. For the reason
stated above, we find no force in the arguments of the counsel for
the appellants that case of the accused/ appellants is covered by
Exception 4 to Section 300 of IPC making them, at best, liable to be
convicted under Section 304 Part -II of IPC. The trial Court after due
appreciation of the entire evidence on record has rightly convicted
and sentenced the appellants as mentioned above and there is no
illegality or infirmity in the judgment impugned necessitating
interference by this Court.
25. As regards acquittal of respondents No. 2 to 10 (in Cr. Rev No.
517 of 2000), the trial Court after considering all the factual and legal
aspects of the case in its proper perspective has recorded a finding
that there is absolutely no evidence against these accused/
respondents connecting them with the crime in question. The said
finding is based on proper appreciation of the evidence on record.
We find no illegality or perversity in the said findings to upset it.
26. In the result, Cr. A. No.3336/1999 and Cr. Rev. No. 517/2000
being without any substance are liable to be dismissed and they are
dismissed as such….”
Rival Contentions
9. Assailing the judgment and order aforesaid, affirming their conviction
and upholding the sentence as awarded, the appellants have preferred the
present appeals.
10. Learned counsel for the appellants, while restricting his submissions
only to the charge under Section 302/149 IPC, has strenuously argued that
18
the alleged eye-witnesses made general statements that all the accused
persons who were 17-18 in number came and assaulted the deceased Govind
Singh but the appellants were not specifically named by these witnesses and
conviction could not have been based on such vague and cursory statements
which are not sufficient to prove the culpability of any of the appellant in the
crime in question. The learned counsel has referred to the decision in
Chandra Shekhar Bind and Ors. v. State of Bihar: AIR 2001 SC 4024 to
submit that while dealing with this case concerning a large number of alleged
offenders, conviction could be sustained only if two or more witnesses gave a
consistent account of the incident. The learned counsel would argue that out
of the four-five alleged eye-witnesses to the assault of Govind Singh, no two
witnesses named the accused persons except the appellant Bhaorosaram (A1) and another accused Chintaram (A-4); and there being no cogent and
consistent evidence against the other appellants, they deserve to be
exonerated like the acquitted accused persons. The learned counsel has also
relied upon the decision in State of Rajasthan v. Sheeshpal: AIR 2016 SC
4958 to submit that the guilt of the accused must be proved beyond all
reasonable doubts; and on the facts and in the circumstances of this case,
when two views are possible on the evidence adduced, one pointing to the
guilt of the accused and other to his innocence, the view which is favourable
to the accused should be accepted.
10.1. The learned counsel for the appellants has also argued in the
alternative that even if on the evidence on record, the accusation against the
19
appellant Bharosaram (A-1) is found established, he had undergone nearly 11
years of imprisonment and in the facts and circumstances of the case and
looking to the role assigned, his conviction may be altered to that under Part I
of Section 304 of IPC and the sentence may be reduced to the period already
undergone while the other appellants Duleshwar, Nand Kumar, Bhanjan
Singh, Keshav Prasad, Khemuram and Lakhan be acquitted from the charge
under Section 302/149 IPC.
11. Per contra, learned counsel for the State has supported the conviction
of appellants with the submission that the Trial Court and the High Court have
dealt with each and every argument raised by the appellants and the
impugned judgments do not suffer from any infirmity so as to call for
interference. The learned counsel has argued that all the accused appellants
have been identified by the eye-witnesses and particularly by the star witness
PW-5, who categorically deposed the names of the appellants. According to
the learned counsel, PW-2, PW-3, PW-4 and PW-5 have been able to
corroborate the details of the incident and the weapons used to kill the
deceased. The learned counsel has also relied upon the decision in Paulmeli
v. State of Tamil Nadu: (2014) 13 SCC 90 to submit that even the testimony
of a hostile witness cannot be rejected in toto as the evidentiary value of his
testimony is not lost and can be accepted to the extent that the version is
found corroborated with other material evidence. The learned counsel has
referred to the testimony of PW-9 Hiradhar and has contended that even if this
witness turned hostile, he has specifically taken the name of two accused
20
persons Khemraj and Duleshwar being involved in beating the deceased
Govind; and his testimony fortifies the case against them. Further, with
reference to several decisions of this Court including those in Lala Ram (D)
through Duli Chandi v. State of Haryana: (1999) 9 SCC 525 and Kallu v.
State of Madhya Pradesh: (2006) 10 SCC 313, the learned counsel has
contended that the minor discrepancies in the testimony of eye-witnesses do
not operate against the case of the prosecution; rather some discrepancies in
the narrations are bound to occur when the witnesses speak on details.
According to the learned counsel, there being no material contradiction, the
evidence on record consistently prove the case against the accused persons.
11.1. The learned counsel for the respondent State has also referred to the
decision in Madan Singh v. State of Rajasthan: (1978) 4 SCC 435 to submit
that recovery of bloods stained clothes and weapons from the accused
persons having been established in the statement of PW-20, the IO; and the
evidence of such recovery having not been effectively controverted, the
complicity of the appellants in the case is further corroborated and their
conviction does not call for interference.
11.2. Lastly, learned counsel for the respondent State has referred to the
decision in Lalji v. State of UP: (1989) 1 SCC 437 to submit that once it is
found that the accused persons formed an unlawful assembly and committed
the offence, every member of such unlawful assembly would remain liable and
no proof of any particular role or act on the part of any particular accused is
requisite. However, the learned counsel has submitted in his written
21
submissions that Nand Kumar (A-12) has not been named in the testimony of
eye-witnesses.
12. We have heard learned counsel for the parties at length and have
scanned through the entire material on record.
The incidents in question and formation of unlawful assembly
13. As noticed, the prosecution case had been that two incidents took
place in the afternoon and evening hours of 15.10.1998: one in which PW-1
Dhanwaram sustained grievous injuries and another which led to the death of
Govind Singh, who was brother of PW-1 Dhanwaram. Going by what has
been suggested on behalf of the appellants and other accused persons,
another incident took place the same day and around the same time, in which
the deceased Govind Singh allegedly assaulted Mangalram (A-14). The fact
that there had been a dispute in relation to the fields, involving Biselal Sahu
(brother of the accused Mangalram) on one hand and PW-1 Dhanwaram on
the other hand remains undeniable. It is also apparent that the incidents in
question had their genesis in such a dispute. It had been the prosecution case
that at least six of the accused persons namely, Bharosaram (A-1), Duleshwar
(A-2), Chintaram (A-4), Khemraj (A-6), Vivekanand (A-9) and Kedarnath (A18) assaulted PW-1 Dhanwaram at about 4.30-5.00 p.m. This assault on him
led to multiple injuries including fracture of jaw bones and the injured
Dhanwaram fell unconscious. For this incident and for assault on Dhanwaram,
the accused persons were also tried for the offence under Section 307 IPC in
this very case; and four of them, including the appellants Bharosaram (A-1)
22
and Duleshwar (A-2), were convicted, albeit for the offence under Section 325
IPC. Such conviction has not specifically been challenged in these appeals
and even otherwise, there appears no reason to disturb such conviction based
on cogent evidence. It is, thus, seen that there existed enmity in the parties
and on the fateful day, the tempers soured high, with assault on PW-1
Dhanwaram. It is the prosecution case that after such assault on Dhanwaram,
the assembly went in search of Dhanwaram’s brother (i.e., the deceased
Govind Singh) and after finding him near Kalley Bridge, the members of the
assembly pounced upon him and he was beaten to death while being dragged
by legs. In these appeals, we are concerned essentially with the conviction of
appellants under Section 302/149 IPC. The relevant questions arising in these
appeals may be examined in the backdrop of the facts and surrounding
factors as noticed above.
14. Formation of an unlawful assembly with common object being the basic
ingredient for invoking Section 149 IPC, the first point to be determined is as
to whether formation of such an unlawful assembly is established. In a
comprehension of the evidence on record, in our view, the fact that a large
assembly was indeed formed, where the members were armed with weapons
including lathis and tangiyas and they indulged in assault over Govind Singh,
is evident on the face of record with the consistent testimonies of the eyewitnesses PW-2 Santosh Kumar, PW-3 Bhuwan, PW-4 Rajesh and PW-5
Prahlad Yadav.6
 Even the witness declared hostile i.e., PW-9 Hiradhar has
6 PW-2 to PW-4 have even stated the approximate number of members of such assembly.
According to PW-2 Santosh Kumar, the assembly had been of about 17-18 persons
whereas according to PW-3 Bhuwan, they had been 20-25 in number and according to
PW-4 Rajesh, the number of members of this assembly was about 15-20.
23
also testified to the fact of assault by an assembly over Govind Singh; he even
named at least two of the assailants. We shall come to the question of identity
of each of the accused person a little later. Suffice it to observe at this juncture
that the fact of formation of an unlawful assembly with weapons is amply
established. It has rightly been argued on behalf of the respondents with
reference to Lalji’s case (supra), that once formation of unlawful assembly at
the time of committing of offence is established, the question of specific role of
an individual member of the assembly is rendered secondary. In other words,
the prosecution need not prove any specific overt act on the part of each and
every member of that assembly. It is also established beyond doubt in the
present case that the deceased Govind Singh was brutally beaten black and
blue with extensive injuries all over his body, including contusions, lacerated
wounds and multiple fractures of various bones and ribs. The post-mortem
report and the medical opinion that Govind Singh died due to shock with
rupture of liver and fracture of ribs leave nothing to doubt that he was done to
harsh and gruesome death with merciless thrashing, including multiple use of
blunt weapons like lathi. Thus, the fact that there had been an assembly with
the common object of battering Govind Singh to death is hardly of any doubt.
The manner of causing death of Govind Singh makes it clear that the intention
of assailants forming such assembly had only been to cause death and the
acts were done with that intent alone. The question of identity of the particular
accused as the member of this assembly would, of course, require
24
consideration to find if the prosecution case is proved beyond reasonable
doubt against him or not.
Multiple accused persons and several eye-witnesses: principles for
appreciation of evidence
15. Before embarking on the question aforesaid, we may refer to the facts
that in the present case, as many as 12 persons were named in the FIR and
as many as 18 persons were tried for the offences in question. In the trial,
apart from other witnesses, the prosecution examined several persons as eyewitnesses, including PW-2 Santosh Kumar, PW-3 Bhuwan, PW-4 Rajesh, PW5 Prahlad Yadav, PW-9 Hiradhar and PW-16 Tikuram Yadav. The Trial Court
convicted 9 accused persons, including the present appellants, for the
offences under Sections147, 148 and 302 read with Section 149 IPC and the
High Court confirmed such conviction.7
 In regard to such a case involving
multiple accused persons and several witnesses, it would be worthwhile to
refer to the principles expounded in Masalti v. State of U.P.: (1964) 8 SCR
133, as reiterated in the case of Chandra Shekhar Bind (supra) in the
following:
“9. However, this is an incident in which a large number of accused
had participated. The Constitution Bench of this Court has, in the
case of Masalti v. State of U.P.: AIR 1965 SC 202 held that under
the Evidence Act, trustworthy evidence given by a single witness
would be enough to convict the accused persons, whereas evidence
given by half-a-dozen witnesses which is not trustworthy would not
be enough to sustain the conviction. It was held that where a
criminal court has to deal with evidence pertaining to the
commission of an offence involving a large number of offenders, it is
usual to adopt the test that the conviction could be sustained only if
7 As noticed, 7 of these convicted accused are before us as appellants whereas the other two namely,
Chintaram (A-4) and Khemraj (A-6) have not appealed against their conviction and sentence.
25
it is supported by two or three or more witnesses who give a
consistent account of the incident. It was held that in a sense, the
test may be described as mechanical, but it cannot be treated as
irrational or unreasonable. It was held that even though it is the
quality of the evidence that matters and not the number of
witnesses, still it is useful to adopt such a mechanical test.
10. This two-witness theory has also been adopted by this Court in
the case of Binay Kumar Singh v. State of Bihar: 1997 1 SCC 283. It
is held that there is no rule of evidence that no conviction can be
based unless a certain minimum number of witnesses have
identified a particular accused as a member of the unlawful
assembly. It is held that it is axiomatic that evidence is not to be
counted but only weighed and it is not the quantity of evidence but
the quality that matters. It is held that even the testimony of one
single witness, if wholly reliable, is sufficient to establish the
identification of an accused as a member of an unlawful assembly. It
is held that all the same, when the size of the unlawful assembly is
quite large and many persons would have witnessed the incident, it
would be a prudent exercise to insist on at least two reliable
witnesses to vouchsafe the identification of an accused as a
participant in the rioting.”
15.1. Thus, it is the quality of evidence that matters and not the quantity; and
even the testimony of a single witness may be sufficient to establish the
identity of an accused as member of an unlawful assembly but, when the size
of assembly is quite large and many persons have witnessed the incident; and
when a witness deposes in general terms, it would be useful to adopt the test
of consistency of more than one witness so as to remove any doubt about
identity of an accused as a member of the assembly in question. However,
even if adopting such a test of consistency, what is to be looked for is the
‘consistent account of the incident’; and the requirement of consistency cannot
be overstretched as if to search for repetition of each and every name of the
accused in each and every testimony. In other words, the comprehension of
overall evidence on record is requisite; and mere counting of heads or mere
26
recitation of names or omission of any name in the testimony of any particular
witness cannot be decisive of the matter. In such facts and circumstances,
even the relevance of the corroborating facts and factors like that of recovery
of weapons or any other article co-related with the crime in question cannot be
ignored altogether.
15.2 In the present case, it is noticed that the Trial Court painstakingly
analysed the evidence on record but while recording its conclusion, largely
proceeded to record conviction on the basis of the testimony of PW-5 Prahlad
Yadav only, though it referred to the corroboration in relation to some of the
accused persons in the testimony of some of the other witnesses too. The
High Court, though the first Court of appeal, essentially proceeded only on the
basis of findings of the Trial Court. In the circumstances of the case, it appears
just and proper that overall scenario emerging from the evidence on record be
taken note of and then, the case in relation to each of the accused person be
analysed.
The overall scenario concerning the incident in question
16. As per the testimony of PW-2 Santosh Kumar, on the date of incident,
around 5.00 p.m., he was present at the Cycle Shop near Kalley Bridge with
PW-3 Bhuwan, PW-4 Rajesh and PW-5 Prahlad Yadav along with another
person Angad. It was asserted by PW-2 Santosh Kumar that the accused
persons came to the spot carrying sticks and hatchet; they started arguments
with Govind Singh; and they asked the other witnesses to move away while
avowing that Govind Singh had to be killed. The witness also testified that the
27
accused persons started assaulting Govind Singh; and that Bharosaram and
Chintaram caught both legs of Govind Singh and dragged while others kept on
beating him. PW-3 Bhuwan and PW-4 Rajesh again testified to the occurrence
with deceased being caught by legs and dragged while others kept on beating
him. However, PW-3 and PW-4 did not name any particular person as being
the assailant.
17. In the testimony of PW-5 Prahlad Yadav, not only the incident has been
narrated in fuller details but several names of assailants have occurred. In the
first place, he asserted that Bharosa (A-1), Nand (A-12), Chinta (A-4) and
Bhanjan (A-5) asked him to move away. The witness further stated that
Bharosaram (A-1) and Chintaram (A-4) caught the deceased by legs while
others kept on beating him. He specifically denied the presence of the
accused Mangalram (A-14) during the incident. In re-examination, he
specifically stated the names of Bharosaram (A-1), Chintaram (A-4), Bhanjan
Singh (A-5), Garib Ram Sahu (A-15), Lakhan (A-13), Hemu (a person of this
name was neither mentioned in FIR nor tried by the Trial Court), Keshav
Prasad (A-7) and Nand Kumar (A-12). PW-9 Hiradhar, though declared
hostile for not fully supporting the prosecution case, did corroborate the
testimony of PW-2 Santosh Kumar and PW-5 Prahlad Yadav about the
assembly of persons searching for deceased Govind Singh; and Khemraj (A6) and Duleshwar (A-2) having given lathi blows to Govind Singh due to which
he fell down. This witness stated that he moved away after such blows were
given to Govind Singh and did not see the happenings thereafter. PW-16
28
Tikuram Yadav was also cited as an eye-witness but stated that he had seen
such assault from a faraway place and he was unable to recognise the
assailants. Coupled with such testimony remains the fact that several bloodstained weapons and clothes were seized by I.O. during investigation. Though
the witnesses to such seizure proceeding, PW-13 Punarad Ram and PW-14
Reshamlal, have been declared hostile but nothing has occurred in the
testimony of PW-20 V.S. Urmaliya, the Investigating Officer to disbelieve or
discard his testimony as regards such seizure proceedings.
Individual cases of the accused persons
18. Keeping in view the scenario concerning the incident in question and
the account given out by the eye-witnesses, we may analyse the case in
relation to the appellants before us. It could be usefully reiterated that as
many as 18 accused persons were tried in this case and the Trial Court
convicted 9 of them for the offences under Sections 147, 148, 302/149 IPC
while acquitting the others for these charges pertaining to the incident leading
to the death of Govind Singh. So far as the acquitted accused persons are
concerned, with dismissal of the revision petition by the High Court, and there
being no further challenge, such acquittal has, obviously, attained finality. As
noticed, so far as the 9 convicted accused persons are concerned, 7 have
appealed to this Court while the others, namely Chintaram (A-4) and Khemraj
(A-6) have not challenged their conviction.
19. As noticed, there is substantial consistency in the account of the
incident as given out by the eye-witnesses. The fact that there had been a
29
large gathering that was searching for Govind Singh and after finding him near
Kalley Bridge, the members of the assembly pounced on him is consistently
stated by the eye-witnesses PW-2, PW-3, PW-4, PW-5 and even PW-9.
Further there had been consistency in the account of several of the witnesses,
including PW-2, PW-3, PW-4 and PW-5, that the deceased Govind Singh was
being dragged by his legs by two of the members of the assembly. Both PW-2
and PW-3 gave out the names of the persons who dragged Govind Singh as
Bharosaram (A-1) and Chintaram (A-4). There had been another fact
consistently stated by PW-2 Santosh Kumar and PW-5 Prahlad Yadav that
when they attempted to intervene, some of the persons of the assembly
threatened and asked them to move away. PW-5 Prahlad Yadav specifically
gave out that Bharosa (A-1), Nand (A-12), Chinta (A-4) and Bhanjan (A-5)
were the accused persons who extended such a threat and asked him to
move away. Even the hostile witness PW-9 specifically stated that Khemraj
(A-6) and Duleshwar (A-2) assaulted the deceased Govind Singh.
20. In the aforesaid status of the testimony of the eye-witnesses and the
nature of incident, in our view, the account given by Prahlad Yadav (PW-5),
who had specifically named several of the accused persons, does not appear
suffering from any infirmity and in our view, the conviction of some of the
appellants, in whose relation no reasonable doubt exists, could be sustained
on the basis of his testimony because the same stands corroborated on the
material particulars in the testimony of other witnesses.
30
21. Having noticed the overall scenario relating to the incident in question
and the position obtaining on record in relation to the testimonies of the
witnesses, we may now examine the case of each of the appellants before us
individually.
21.1. So far as the appellant Bharosaram (A-1) is concerned, it is established
that he had been the part of assembly right from the beginning inasmuch as
he was amongst the assailants who caused grievous injuries to PW-1
Dhanwaram in the incident that preceded the incident resulting in demise of
Govind Singh. The eye-witness PW-5 named him as one of the accused
persons assaulting the deceased. It is also established in the testimony of the
witnesses PW-2 and PW-5 that the deceased was dragged by legs by two
persons, one being this accused Bharosaram (A-1). Such a fact that the
deceased was indeed dragged by legs has been stated by PW-3 Bhuwan and
PW-4 Rajesh also. The eye-witness PW-5 also stated that when the accused
persons were assaulting Govind Singh, he went there to intervene but was
threatened by Bharosa, Nand, Chinta and Bhanjan. The happening of the
incident in question and threats by some of the assailants to the witnesses is
duly corroborated in the testimony of PW-2 Santosh Kumar. Coupled with
these factors, the Investigating Officer seized one tangiya and a blood-stained
lungi from this accused Bharosaram (vide Ex. P/13). Though this accused
alleged that he was not present during the incident and had been falsely
implicated but there is no specific defence evidence on his plea of alibi nor
there is any other specific defence version of this accused. In the given set of
31
facts and circumstances, in our view, it is established beyond doubt that this
accused Bharosaram (A-1) had been the member of the assembly that
attacked and thrashed the deceased Govind Singh.
21.2. As regards the appellant Duleshwar (A-2), again, it is established that
he was amongst the assailants who caused grievous injuries to PW-1
Dhanwaram in the incident that preceded the incident resulting in demise of
Govind Singh. Apart from PW-5 Prahlad Yadav naming him as one the
members of the assembly that assaulted the deceased, even the otherwise
hostile witness PW-9 Hiradhar specifically stated that this accused Duleshwar
had been one of the persons who assaulted the deceased Govind Singh. As
observed, merely for this witness PW-9 turning hostile in relation to some part
of the prosecution case, his entire testimony cannot be discarded, if it inspires
confidence [vide Paulmeli’s case (supra)]. There is no reason of false
implication of this accused by PW-9. Moreover, PW-20, the Investigating
Officer seized a lathi and a vest from this accused (vide Ex. P/14) both
carrying blood-stains. This accused similarly alleged that he was not present
during the incident and had been falsely implicated but there is no specific
defence evidence on his plea of alibi nor there is any other specific defence
version. In the totality of circumstances, in our view, it is established beyond
doubt that this accused Duleshwar (A-2) had also been the member of the
assembly that attacked and thrashed the deceased Govind Singh.
21.3. As regards the appellant Bhanjan Singh (A-5), the eye-witness PW-5
named him as one of the accused persons assaulting the deceased. This
32
accused was also named by PW-5 as one of the members of the assembly
that threatened the witnesses to move away. The happening of the incident in
question and threats by some of the assailants to the witnesses is duly
corroborated in the testimony of PW-2 Santosh Kumar. Coupled with these
factors, PW-20, the Investigating Officer, seized a blood-stained lathi from this
accused also (vide Ex. P/16). Though this accused stated that he was falsely
implicated but there had not been any specific defence plea on his part. In the
given set of facts and circumstances, there is no reason to doubt that he had
also been the member of the assembly that attacked and thrashed the
deceased Govind Singh.
21.4. So far as the appellant Keshav Prasad (A-7) is concerned, though other
witnesses did not categorically state his name but the eye-witness PW-5
Prahlad Yadav, during his re-examination, specifically named him as one of
the accused persons who assaulted the deceased.. The lathi recovered from
this accused (vide Ex. P/18) also carried blood-stains. A feeble attempt was
made for suggesting the plea of alibi where DW-1 Latkhor said that this
accused went to Dhamtari to get his sewing machine repaired on the day of
incident at about 1.30 p.m. However, there had been no such plea of this
accused in his statement under Section 313 CrPC and there is no cogent
evidence on record to establish the presence of this accused at any other
place during the time of incident. In the totality of circumstances of this case,
we find no reason to extend him the benefit of doubt and there is no reason to
33
interfere with the findings that he had also been the member of the assembly
that assaulted the deceased Govind Singh.
21.5. So far as the appellant Khemuram (A-8) is concerned, we find it difficult
to endorse his conviction. Though one name ‘Hemu’ has occurred in the reexamination of PW-5 Prahlad Yadav but not specifically the name of this
accused Khemuram8
. The prosecution has not taken any steps to clarify if
there was any discrepancy in regard to the statement of this witness PW-5.
No other eye-witness has named this accused Khemuram as one of the
members of the mob that assaulted the deceased Govind Singh nor any other
act of this accused has come on record which could connect him with the
assembly in question and the place of incident. Though the lathi recovered at
the instance of this accused (vide Ex. P/19) allegedly carried blood-stains but
his conviction cannot be based on this recovery alone. For want of cogent
and convincing evidence about his presence at the scene of crime and his
participation in assaulting the deceased, in our view, this accused Khemuram
(A-8) is entitled to the benefit of doubt and the findings in his relation cannot
be sustained.
21.6. As regards the appellant Nand Kumar (A-12), though lathi said to have
been recovered from him (vide Ex. P/27) was not shown carrying any bloodstains and it has been suggested in the submissions on behalf of the State
that his name is not taken by any witness but then, it is noticed from the
statement of PW-5 Prahlad Yadav that he had clearly named this accused as
8 We have examined the original record too and it is clear that the name mentioned in
the re-examination of PW-5 is ‘Hemu’ and not ‘Khemu’.
34
one of the persons who threatened the witnesses and further stated his name
in the re-examination along with the name of other assailants. As noticed, the
happening of the incident in question and threats by some of the assailants to
the witnesses is duly corroborated in the testimony of PW-2 Santosh Kumar.
In the given circumstances, the case against this appellant Nand Kumar more
or less stands at the same footing as that against the co-accused Bharosaram
(A-1) and Bhanjan Singh (A-5), as discussed in the foregoing paragraphs 21.1
and 21.3. Though a witness DW-2 Dilip Kumar was examined in defence that
this accused Nand Kumar was present in his village Darra on 15.10.1998 at
the relevant time and was in the field from 3.00-6.00 p.m. but no such specific
plea was taken by him in his defence version. The Trial Court has rejected
such evidence as after-thought and rightly so. In the given set of facts and
circumstances, there is no reason to interfere with the findings that Nand
Kumar (A-12) had also been the member of the assembly that assaulted the
deceased Govind Singh.
21.7. As regards the appellant Lakhan (A-13), again, it is noticed that PW-5
Prahlad Yadav stated his name in the re-examination but then, no other eyewitness named him as one of the members of the mob that assaulted the
deceased Govind Singh nor any other act of this accused has come on record
which could connect him with the assembly in question and the place of
incident. Thus, there had been want of corroboration of the statement of PW-5
by other witnesses in regard to the involvement of this accused Lakhan. The
alleged weapon lathi said to have been recovered at the instance of this
35
accused (vide Ex. P/26) is also not shown carrying blood-stains. Though this
accused also led in defence evidence in the form of DW-3 Barsan who
deposed that this accused was in other village Bhururenga and left his village
on 15.10.1998 at about 5.00-5.30 and that the distance of the two villages was
about 15 kms but then, there had been discrepancies regarding the dates and
time in his testimony and no such specific plea of alibi was taken by this
accused in his defence version. However, even if the defence evidence in his
regard is not accepted, as noticed, a reasonable doubt still remains if this
accused Lakhan was a part of the assembly in question. In the given
circumstances, we are of the view that this accused Lakhan (A-13) is also
entitled to benefit of doubt.
22. In summation of what has been discussed in the foregoing paragraphs,
in our view, the involvement of appellants Bharosaram (A-1), Duleshwar (A-2),
Bhanjan Singh (A-5), Keshav Prasad (A-7) and Nand Kumar (A-12) as the
members of the assembly that assaulted and thrashed the deceased Govind
Singh to death is established on record and there appears no reason to
interfere with the findings on their conviction. However, in our view, the
prosecution has failed to prove its case beyond reasonable doubt against the
appellants Khemuram (A-8) and Lakhan (A-13) and they are entitled to the
benefit of doubt.
23. In the passing, we may also usefully reiterate, having regard to the
nature of inquiry herein, particularly that relating to the formation of unlawful
assembly within the meaning of Section 149 IPC, that 2 of the accused
36
persons who stand convicted for offences under Sections 147, 148, 302/149
IPC in this very case viz., Chintaram (A-4) and Khemraj (A-6) have not
appealed against their conviction and on the given status of record, they do
form the part of the same assembly in question that attacked and thrashed
Govind Singh to death. As noticed, the eye-witness PW-5 named Chintaram
(A-4) as one of the accused persons assaulting the deceased and one of the
assailants who threatened the witnesses at the time of the incident. The
happening of the incident in question and threats by some of the assailants to
the witnesses is duly corroborated in the testimony of PW-2 Santosh Kumar.
Moreover, PW-2 Santosh Kumar as also PW-5 Prahlad Yadav have
specifically named the accused Chintaram (A-4) as one of the persons
dragging the deceased by legs. The fact that the deceased was indeed
dragged by legs has been stated by PW-3 Bhuwan and PW-4 Rajesh also.
PW-20 V.S. Urmaliya, the Investigating Officer seized a lathi and vest from this
accused Chintaram (A-4), both carrying blood-stains (vide Ex. P/15). As
regards Khemraj (A-6), it is noticed that his participation in the assembly that
had battered Govind Singh to death has been stated by at least 2 witnesses
namely, PW-5 Prahlad Yadav and PW-9 Hiradhar. As noticed, PW-9 Hiradhar
was declared hostile for not supporting the prosecution case in toto, but he
specifically stated that this accused Khemraj (A-6) and the other accusedappellant Duleshwar (A-2) assaulted the deceased Govind Singh. It is also
noticed that the investigating officer, PW-20 V.S. Urmaliya seized one lathi and
one shirt from this accused Khemraj (A-6), carrying blood-stains (vide Ex.
37
P/17). Thus, on the given status of record, the said accused persons
Chintaram (A-4) and Khemraj (A-6) also form the part of the same assembly in
question that attacked and thrashed Govind Singh to death.
24. Before concluding, we may also deal with the submissions made in the
alternative for converting the conviction to the one under Part I of Section 304
IPC. In our view, the submissions in this regard remain bereft of substance
and could only be rejected. As noticed, it is evident that the deceased Govind
Singh was brutally beaten black and blue by a large assembly of assailants
and he sustained extensive injuries all over his body, including contusions,
lacerated wounds and multiple fractures of various bones and ribs and he died
due to shock with rupture of liver and fracture of ribs. The manner of execution
of its object by the assembly with dragging of the deceased by legs and
merciless thrashing, including multiple use of blunt weapons like lathi, leave
nothing to doubt that the intention of assailants forming such assembly had
only been to cause death and the acts were done with that intent alone. In the
given set of facts and circumstances, there appears no reason to consider the
present one to be a case of culpable homicide not amount to murder. In our
view, conviction of the accused persons, against whom the case of the
prosecution is established beyond reasonable doubt, for offences under
Sections 147, 148 and 302/149 remains unexceptionable.
Conclusion
25. For what has been discussed hereinabove, we find that the accusedappellants Bharosaram (A-1), Duleshwar (A-2), Bhanjan Singh (A-5), Keshav
38
Prasad (A-7) and Nand Kumar (A-12) have rightly been convicted with other
co-accused persons for the offences under Section 147,148, 302/149; and
the appeals filed by these accused-appellants deserve to be dismissed.
However, in our view, the prosecution has failed to prove its case beyond
reasonable doubt against the accused-appellants Khemuram (A-8) and
Lakhan (A-13), who deserve to be acquitted on benefit of doubt.
26. Accordingly, Criminal Appeal Nos. 1813 of 2017 and 1815 of 2017 are
dismissed whereas Criminal Appeal No. 1814 of 2017 is allowed in part and
the impugned judgments are set aside in relation to the accused-appellants
Khemuram (A-8) and Lakhan (A-13). They be set at liberty forthwith, if not
required in any other case.
..………………………. J.
 (A.M. KHANWILKAR)
…………………………. J.
(DINESH MAHESHWARI)
New Delhi
Dated: 21st January, 2020
39