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
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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
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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
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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’.
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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
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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.
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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
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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
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