DULESHWAR & ANR. versus THE STATE OF M.P. (NOW CHHATTISGARH) on 21 January 2020

[2020] 5 S.C.R. 1001

DULESHWAR & ANR.

v.

THE STATE OF M.P. (NOW CHHATTISGARH)

(Criminal Appeal No. 1813 of 2017)

JANUARY 21, 2020

[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]

Penal Code,1860:

ss. 147, 148, 302, 302/149 and 325 - Prosecution under – Of18 accused persons – For causing grievous injury to one personPW1 and causing death of another – In two different incidents –Eye-witnesses to both the incidents – High Court convicted 10accused while acquitting 8 accused giving them benefit of doubt –Appeal by 9 of the convicted accused persons and Revision filed bycomplainant against acquitted accused persons – High Courtaffirmed the order of trial court – Appeal to Supreme Court by 7 ofthe convicted accused – Held: It is proved from the consistenttestimonies of eye-witnesses that the appellants-accused 1, 2, 5, 7and 12 formed unlawful assembly with weapons and indulged inthe assault – Count of witnesses is further corroborated by recoveryof blood-stained weapons and clothes – Hence their conviction issustained – However, prosecution failed to prove its case beyondreasonable doubt against appellants-accused 8 and 13.

Allowing the appeals filed by appellants-accused 8 and 13,while dismissing those filed by other appellants, the Court HELD:1. The fact that a large assembly was indeed formed,where the members were armed with weapons including lathisand tangiyas and they indulged in assault over the deceased, isevident on the face of record with the consistent testimonies ofthe eye-witnesses PW-2, PW-3, PW-4 and PW-5. Even the witnessdeclared hostile i.e., PW-9 has also testified to the fact of assaultby an assembly over the deceased; he even named at least two ofthe assailants. Thus, the fact of formation of an unlawful assemblywith weapons is amply established. Once formation of unlawfulassembly at the time of committing of offence is established, thequestion of specific role of an individual member of the assembly

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Ais rendered secondary. In other words, the prosecution need notprove any specific overt act on the part of each and every memberof that assembly. It is also established beyond doubt in the presentcase that the deceased was brutally beaten black and blue withextensive injuries all over his body, including contusions,lacerated wounds and multiple fractures of various bones andBribs. The post-mortem report and the medical opinion that thedeceased died due to shock with rupture of liver and fracture ofribs leave nothing to doubt that he was done to harsh andgruesome death with merciless thrashing, including multiple useof blunt weapons like lathi. Thus, the fact that there had been anCassembly with the common object of battering the deceased todeath is hardly of any doubt. The manner of causing death makesit clear that the intention of assailants forming such assemblyhad only been to cause death and the acts were done with thatintent alone. [Para 14][1027-A-F]

DLalji v. State of UP (1989) 1 SCC 437 : [1989] 1 SCR–130; Masalti v. State of U.P. [1964] 8 SCR 133 relied on.

2. In cases involving multiple accused persons and severalwitnesses, it is the quality of evidence that matters and not theEquantity; and even the testimony of a single witness may besufficient to establish the identity of an accused as member of anunlawful assembly but, when the size of assembly is quite largeand many persons have witnessed the incident; and when a witnessdeposes in general terms, it would be useful to adopt the test ofconsistency of more than one witness so as to remove any doubtFabout identity of an accused as a member of the assembly inquestion. 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 asif to search for repetition of each and every name of the accusedGin each and every testimony. In other words, the comprehensionof overall evidence on record is requisite; and mere counting ofheads or mere recitation of names or omission of any name in thetestimony of any particular witness cannot be decisive of thematter. In such facts and circumstances, even the relevance ofthe corroborating facts and factors like that of recovery of weaponsH

or any other article co-related with the crime in question cannotbe ignored altogether. [Paras 15 & 15.1][1028-C; 1029-C-F]

3. Coupled with oral testimony remains the fact that severalblood-stained weapons and clothes were seized by I.O. duringinvestigation. Though the witnesses to such seizure proceeding,PW-13 and PW-14 have been declared hostile but nothing hasoccurred in the testimony of PW-20 the Investigating Officer todisbelieve or discard his testimony as regards such seizureproceedings. [Para 17][1031-A-B]

4. There is substantial consistency in the account of theincident as given out by the eye-witnesses. The fact that therehad been a large gathering that was searching for the deceasedand after finding him, the members of the assembly pounced onhim is consistently stated by the eye-witnesses PW-2, PW-3,PW-4, PW-5 and even PW-9. Further there had been consistencyin the account of several of the witnesses, including PW-2, PW-3,PW-4 and PW-5, that the deceased was being dragged by his legsby two of the members of the assembly. Both PW-2 and PW-3gave out the names of the persons who dragged the deceased asA-1 and A-4. There had been another fact consistently stated byPW-2 and PW-5 that when they attempted to intervene, some ofthe persons of the assembly threatened and asked them to moveaway. PW-5 specifically gave out that A-1, A-12, A-4 and A-5 werethe accused persons who extended such a threat and asked himto move away. Even the hostile witness PW-9 specifically statedthat A-6 and A-2 assaulted the deceased. [Para 19][1031-E-H;1032-A]

5. In the aforesaid status of the testimony of theeye-witnesses and the nature of incident, the account given byPW-5 who had specifically named several of the accused persons,does not appear suffering from any infirmity and the conviction ofsome of the appellants, in whose relation no reasonable doubtexists, could be sustained on the basis of his testimony becausethe same stands corroborated on the material particulars in thetestimony of other witnesses. [Para 20][1032-B]

6. So far as the appellant A-1 is concerned, it is establishedthat he had been the part of assembly right from the beginning AB

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Ainasmuch as he was amongst the assailants who caused grievousinjuries to PW-1 Dhanwaram in the incident that preceded theincident resulting in demise of the deceased. The eye-witnessPW-5 named him as one of the accused persons assaulting thedeceased. It is also established in the testimony of the witnessesPW-2 and PW-5 that the deceased was dragged by legs by twoBpersons, one being this accused A-1. Such a fact that the deceasedwas indeed dragged by legs has been stated by PW-3 and PW-4also. The eye-witness PW-5 also stated that when the accusedpersons were assaulting the deceased, he went there to intervenebut was threatened by four accused persons. The happening ofCthe incident in question and threats by some of the assailants tothe witnesses is duly corroborated in the testimony of PW-2.Coupled with these factors, the Investigating Officer seized onetangiya and a blood-stained lungi from A-1 (vide Ex. P/13). Thoughthis accused alleged that he was not present during the incidentand had been falsely implicated but there is no specific defenceDevidence on his plea of alibi nor there is any other specific defenceversion of this accused. In the given set of facts andcircumstances, it is established beyond doubt that this accusedA-1 had been the member of the assembly that attacked andthrashed the deceased. [Para 21.1][1032-D-H]

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7. As regards the appellant (A-2), again, it is establishedthat he was amongst the assailants who caused grievous injuriesto PW-1 in the incident that preceded the incident resulting indemise of the deceased. Apart from PW-5 naming him as one themembers of the assembly that assaulted the deceased, even theFotherwise hostile witness PW-9 specifically stated that thisaccused had been one of the persons who assaulted the deceased.Merely for this witness PW-9 turning hostile in relation to somepart of the prosecution case, his entire testimony cannot bediscarded, if it inspires confidence. There is no reason of falseimplication of this accused by PW-9. Moreover, PW-20, theGInvestigating Officer seized a lathi and a vest from this accused(vide Ex. P/14) both carrying blood-stains. This accused similarlyalleged that he was not present during the incident and had beenfalsely implicated but there is no specific defence evidence onhis plea of alibi nor there is any other specific defence version.H

In the totality of circumstances, it is established beyond doubtthat A-2 had also been the member of the assembly that attackedand thrashed the deceased. [Para 21.2][1033-A-D]

Paulmeli v. State of Tamil Nadu: (2014) 13 SCC 90 :[2014] 6 SCR 420 – relied on.

8. As regards the appellant A-5, the eye-witness PW-5named him as one of the accused persons assaulting the deceased.This accused was also named by PW-5 as one of the members ofthe assembly that threatened the witnesses to move away. Thehappening of the incident in question and threats by some of theassailants to the witnesses is duly corroborated in the testimonyof PW-2. Coupled with these factors, PW-20, the InvestigatingOfficer, seized a blood-stained lathi from this accused also (videEx. P/16). Though this accused stated that he was falselyimplicated but there had not been any specific defence plea onhis part. In the given set of facts and circumstances, there is noreason to doubt that he had also been the member of the assemblythat attacked and thrashed the deceased. [Para 21.3][1033-E-F]

9. So far as the appellant (A-7) is concerned, though otherwitnesses did not categorically state his name but the eye-witnessPW-5, during his re-examination, specifically named him as oneof the accused persons who assaulted the deceased.. The lathirecovered from this accused (vide Ex. P/18) also carried blood-stains. A feeble attempt was made for suggesting the plea of alibiwhere DW-1 said that this accused went to get his sewing machinerepaired on the day of incident at about 1.30 p.m. However, therehad been no such plea of this accused in his statement underSection 313 CrPC and there is no cogent evidence on record toestablish the presence of this accused at any other place duringthe time of incident. In the totality of circumstances of this case,there is no reason to extend him the benefit of doubt and there isno reason to interfere with the findings that he had also been themember of the assembly that assaulted the deceased. [Para 21.4][1033-G-H; 1034-A-B]

10. So far as the appellant A-8 is concerned, it is difficult toendorse his conviction. Though one name has occurred in the A

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Are-examination of PW-5 but not specifically the name of thisaccused. The prosecution has not taken any steps to clarify ifthere was any discrepancy in regard to the statement of PW-5.No other eye-witness has named this accused as one of themembers of the mob that assaulted the deceased nor any otheract of this accused has come on record which could connect himBwith the assembly in question and the place of incident. Thoughthe lathi recovered at the instance of this accused (vide Ex. P/19) allegedly carried blood-stains but his conviction cannot bebased on this recovery alone. For want of cogent and convincingevidence about his presence at the scene of crime and hisCparticipation in assaulting the deceased A-8 is entitled to thebenefit of doubt and the findings in his relation cannot besustained. [Para 21.5][1034-C-E]

11. As regards the appellant A-12 though lathi said to havebeen recovered from him (vide Ex. P/27) was not shown carryingDany blood-stains and it has been suggested in the submissionson behalf of the State that his name is not taken by any witnessbut then, it is noticed from the statement of PW-5 that he hadclearly named this accused as one of the persons who threatenedthe witnesses and further stated his name in the re-examination along with the name of other assailants. As noticed, the happeningEof the incident in question and threats by some of the assailantsto the witnesses is duly corroborated in the testimony of PW-2.In the given circumstances, the case against this appellant moreor less stands at the same footing as that against the co-accused A-1 and A-5. Though a witness DW-2 was examined in defenceFthat this accused was present in his village at the relevant timeand was in the field, but no such specific plea was taken by him inhis defence version. The Trial Court has rejected such evidenceas after-thought and rightly so. In the given set of facts andcircumstances, there is no reason to interfere with the findingsthat A-12 had also been the member of the assembly that assaultedGthe deceased. [Para 21.6][1034-F-G; 1035-A-B]

12. As regards the appellant A-13, it is noticed that PW-5stated his name in the re-examination but then, no othereye-witness named him as one of the members of the mob thatassaulted the deceased nor any other act of this accused has comeH

on record which could connect him with the assembly in questionand the place of incident. Thus, there had been want ofcorroboration of the statement of PW-5 by other witnesses inregard to the involvement of this accused. The alleged weaponlathi said to have been recovered at the instance of this accused(vide Ex. P/26) is also not shown carrying blood-stains. Thoughthis accused also led in defence evidence in the form of DW-3who deposed that this accused was in other village and left hisvillage on 15.10.1998 at about 5.00-5.30 and that the distance ofthe two villages was about 15kms but then, there had beendiscrepancies regarding the dates and time in his testimony andno such specific plea of alibi was taken by this accused in hisdefence version. However, even if the defence evidence in hisregard is not accepted, a reasonable doubt still remains if thisaccused was a part of the assembly in question. In the givencircumstances, A-13 is also entitled to benefit of doubt.[Para 21.7][1035-C-F]

13. In summation, the involvement of appellants A-1, A-2,A-5, A-7 and A-12 as the members of the assembly that assaultedand thrashed the deceased to death is established on record andthere appears no reason to interfere with the findings on theirconviction. However, the prosecution has failed to prove its casebeyond reasonable doubt against the appellants A-8 and A-13and they are entitled to the benefit of doubt. On the given statusof record, the accused persons A-4 and A-6 who have not appealedagainst their convictions, also form the part of the same assemblyin question that attacked and thrashed to death. Thus, the accused-appellants A-1, A-2, A-5, A-7 and A-12 have rightly been convictedwith other co-accused persons for the offences under Section147,148, 302/149; and the appeals filed by these accused-appellants deserve to be dismissed. However, the prosecutionhas failed to prove its case beyond reasonable doubt against theaccused-appellants A-8 and A-13, who deserve to be acquittedon benefit of doubt. [Paras 22, 23 and 25][1035-G-H; 1036-A, G;1037-D-E]

Chandra Shekhar Bind and Ors. v. State of Bihar AIR2001 SC 4024 : [2001] 3 Suppl. SCR 658; State ofRajasthan v. Sheeshpal AIR 2016 SC 4958 : [2016] 8

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ASCR 380; Lala Ram (D) through Duli Chandi v. StateofHaryana (1999) 9 SCC 525; [1999] 3 Suppl. SCR435; Kallu v. State of Madhya Pradesh (2006) 10 SCC313 : [2006] 1 SCR 201; Madan Singh v. State ofRajasthan (1978) 4 SCC 435 – referred to.

Case Law Reference

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From the Judgment and Order dated 12.09.2014 of the High CourtEof Chhattisgarh at Bilaspur in Criminal Appeal No. 3336 of 1999.

With

Criminal Appeal Nos. 1815 and 1814 of 2017.

Raj Kishor Choudhary, Shakeel Ahmed, Anupam Bhati, NakulChaudhary, Sukumar, Faizan Ali, Advs. for the Appellants.F

Nishanth Patil, Chirag Jain, Advs. for the Respondent.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J.GIntroductory with brief outline

1. These three appeals are directed against the common judgmentand order dated 12.09.2014, as passed by the High Court of Chhattisgarhat Bilaspur in Criminal Appeal No. 3336/1999 whereby, the High Courthas upheld the judgment and order dated 26.11.1999 by the AdditionalSessions Judge, Dhamtari, Chhattisgarh in S.T. No. 114/1999, convictingH

and sentencing the accused-appellants for multiple offences, includingthose punishable under Sections 147, 148, 302/149 and 325 of the IndianPenal Code (‘IPC’).

2. In a brief outline of the material aspects, it could be noticed thatin the present case, the appellants, seven in number, being AccusedNos.1,2,5,7,8,12 and 13[1 ]were tried together with several other co-accusedpersons for the offences relating to the two incidents which took placein village Kodebod, police station Kurud, district Dhamtari (M.P. – nowChhattisgarh) on 15.10.1998: one at about 4.30-5.00 p.m., in which, theProsecution Witness No. 1 Dhanwaram[2] sustained grievous injuries; andanother 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 bythe Trial Court, essentially after finding that the charges against themwere not proved beyond reasonable doubt. However, Bharosaram(A-1), Duleshwar (A-2), Chintaram (A-4), and Vivekanand (A-9) wereconvicted for the offence under Section 325 IPC for causing grievoushurt to PW-1 Dhanwaram. Moreover, Bharosaram (A-1), Duleshwar(A-2), Chintaram (A-4), Bhanjan Singh (A-5), Khemraj (A-6), KeshavPrasad (A-7), Khemuram (A-8), Nand Kumar (A-12) and Lakhan(A-13) were convicted for the offences under Sections 147, 148, 302and 302/149 IPC for forming unlawful assembly, rioting with deadlyweapons and in furtherance of common object, causing death of GovindSingh by inflicting several injuries. The convicted accused persons wereawarded varying sentences, including that of life imprisonment for theoffence under Section 302/149 IPC. Except Vivekanand (A-9)[3], other 9accused persons preferred an appeal to the High Court against theirconviction and sentence. A revision petition was also filed by thecomplainant against acquittal of the remaining accused persons. TheHigh Court, however, found no ground to interfere and hence dismissedthe appeal as also the revision petition and thereby, affirmed the decisionof the Trial Court. As against the decision of the High Court, 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; andAccused Nos. 5 and 7 are the appellants in Criminal Appeal No. 1815 of 2017.Hereinafter, the respective appellants and other co-accused persons are also referred toas A-1, A-2 et al.

2 Hereinafter the Prosecution Witnesses are also referred to as PW-1, PW-2 et al.3 Vivekanand (A-9) was convicted only for the offence under Section 325 IPC and, ashe was found to be minor on the date of incident, was awarded lesser sentence of oneyear and three months.

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ABharosaram (A-1), Duleshwar (A-2), Bhanjan Singh (A-5), KeshavPrasad (A-7), Khemuram (A-8), Nand Kumar (A-12) andLakhan (A-13) have preferred these appeals. However, no such appealis preferred on behalf of the other convicted co-accused namely,Chintaram (A-4) and Khemraj (A-6).

B2.1. Essentially, the conviction of the appellants under Section302/149 has been questioned in these appeals; and the principal groundof challenge is that there is no cogent evidence about their involvementin the crime in question. The reliability of evidence led by the prosecutionhas also been assailed in these appeals apart from other contentionsconcerning the surrounding factors. The relevant facts and backgroundCaspects could be noticed, keeping in view the points arising fordetermination in these appeals.

The relevant facts and background

The relevant facts and background

3. The prosecution case has been that a dispute in relation to theDfields and demarcation of ridge was going on between Biselal Sahu,brother of Mangalram (A-14) and Dhanwaram (PW-1), brother of thedeceased; and a civil case related to this dispute was also pending. Dueto the enmity because of this dispute, on 15.10.1998 at around4.30-5.00 p.m., the accused persons Bharosaram (A-1),Duleshwar (A-2), Chintaram (A-4), Khemraj (A-6), Vivekanand (A-9),Eand Kedarnath (A-18) assaulted Dhanwaram (PW-1) with differentweapons and caused him injuries. Parvati Bai (PW-6), who was passingby, saw the accused persons assaulting Dhanwaram; she ran screamingand informed Khilawan (PW-7), son of the deceased, about the incidentthat she had witnessed. Khilawan went to the place of incident withFRam Dhruv (PW-17) and found Dhanwaram lying unconscious on theground. Khilawan and Ram Dhruv took Dhanwaram home. The accusedpersons, after assaulting Dhanwaram, went in search of Govind Singh,brother of Dhanwaram.

3.1. According to the prosecution, on the same day i.e., onG15.10.1998, another incident took place at around 5.30 p.m. in whichBharosaram, Chintaram, Khemraj, Bhanjan Singh, Khemuram, and otheraccused persons assaulted Govind Singh near Kalley Bridge and inflictedupon him varying injuries. When Santosh Kumar (PW-2) and PrahladYadav (PW-5) tried to intervene in the matter, they were threatened bysome of the accused persons to stay away and else, they would also beHdone away with; and therefore, they stepped back. Thereafter, two of the accused persons dragged the deceased by his legs while the otherskept on beating him with weapons; the deceased 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 byKhilawan (PW-7) at about 7.00 p.m. who narrated the aforesaid incidentand alleged that after hiring a jeep and upon search, he found the deadbody of his father across Kalley Canal with many injuries on his head,face, nose and whole of the body. The complainant alleged that MukeshNirmalkar, Duleshwar, Chintaram, Bhanjan, Khemraj, Keshav Prasad,Khemuram, Bharosaram, Vivekanand, Vasudev, Chemanand, Garibramand some other persons did marpeet with lathi danda to his fatherGovind Singh and uncle Dhanwaram due to which, Govind Singh diedand 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-mortemreport of the deceased which confirmed that he succumbed to the injuriesinflicted 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 thewitnesses were recorded. As per the chemical examination report ofAssistant Chemical Examiner, Regional FSL Raipur, some of the seizedweapons and clothes were found to contain blood stains. After completionof investigation, the charge sheet was filed in the Court of Special Judge,Schedule Tribe Prohibition of Atrocities, Raipur against 18 accusedpersons for causing rioting while being armed with deadly weapons, forcausing murder of Govind Singh, and for attempting to cause murder ofDhanwaram. However, by the order dated 04.02.1999, the learnedSpecial Judge held that the matter was not to be proceeded in the SpecialCourt. Thereafter, the charge sheet was filed in the Court of Chief JudicialMagistrate, Dhamtari; and being sessions triable matter, the same was

4 It appears that on the same day and around the same time, but before the incidentresulting in the death of Govind Singh, yet another incident took place involving thedeceased 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 ofMangalram (A-14) with injuries on hand and head and on being asked by PW-16, thedeceased told him that Mangal Patwari (A-14) had attacked him with sword. On theother hand, Mangalram (A-14) lodged a report at the police station alleging that GovindRam attacked him with sword. On this report, FIR No. 185/1998 was registered.

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Acommitted to the Sessions Court, Raipur and was ultimately tried in theCourt of Additional Sessions Judge, Dhamtari in S.T. No. 114 of 1999.

4. In the trial, the prosecution examined 21 witnesses beingPW-1 Dhanwaram (the injured); PW-2 Santosh Kumar, PW-3 Bhuwan,PW-4 Rajesh, PW-5 Prahlad Yadav, PW-9 Hiradhar and PW-16 TikuramBYadav as being the alleged witnesses/eye-witnesses to the assault ofGovind Singh; PW-6 Parvati Bai, as being eye-witness to the assault ofDhanwaram; PW-7 Khilawan (the informant); PW-8 Daulal, PW-10Nand Kumar and PW-11 Bhagatram, said to be the labourers working inthe field of Tikuram who allegedly saw the deceased Govind Singh ininjured condition before the assault in question; PW-12 Chandkishore,CPW-13 Punarad Ram, PW-14 Reshamlal and PW-15 Dayaram as beingthe witnesses in the investigation proceedings relating to preparation ofinquest report or seizure memo or site plan; PW-17 Ram Dhruv, thenephew of Khilawan who accompanied him to police station; PW-18Dr. Pradeep Hishikar, who conducted post-mortem; PW-19 DasrathDDeycate Deputy Superintendent of Police, who recorded the statementsof some of the witnesses; PW-20V.S. Urmaliya, the Investigating Officer;and PW-21 Dr. V. Chaterjee, who examined the injured Dhanwaramand prepared his injury report[5].

The evidenceE

5. Having regard to the contentions urged and questions involved,we may briefly take note of the relevant aspects of the evidence ofmaterial witnesses examined in this matter.

5.1. The injured witness PW-1 Dhanwaram, while supporting theprosecution case, inter alia, stated that he fell prey to the beatings ofFKedar, Mangal, Khemraj, Duleshwar, Vivekanand and Bharosa. PW-6Parvati Bai, the eye-witness to the assault on Dhanwaram stated thatthe accused Mangal, Gareeb, Chintaram, Bhanjan, Bharosa, Narad,Keshav, Lakshman and their sons and daughter assaulted PW-1Dhanwaram.G5.2. PW-2 Santosh Kumar, the eye-witness to the incident whereGovind Singh was assaulted stated that himself and Angad, Bhuvan Singh(PW-3), Rajesh (PW-4) and Prahlad Yadav (PW-5) were present nearthe place of incident where the accused persons, armed with danda,tangiya etc., started arguing with the deceased Govind Singh; and when H5 It may be noticed that PW-8, PW-9, PW-13 and PW-14 were declared hostile.

the witnesses tried to intervene, they were threatened by the accusedpersons to keep away. He also alleged that Bharosa and Chintaram heldboth the legs of the deceased and dragged him towards canal while theother accused persons kept on beating him. The relevant portion of thetestimony of PW-2 reads as under: - “…. At that time about 17-18 accused persons came from canalside. All were carrying stick (danda). Someone carried hatchetas well. I did not see any other weapon. They came and startedargument with Govind Singh. Someone among the accusedperson said that uncle was assaulted and quarrelled. Theytold us to move away. They told that Govind Singh had to bekilled, on which all person who were standing with me moveda side.

Thereafter, all the accused person together started assaultingby stick. Due to assault Govind Singh died on the place ofoccurrence. At the beginning we had tried to intervene butlater on we did not try to intervene. Bharosa Ram and Chintacaught both legs of Govind and dragged him, others weregoing beating him….”

5.3. PW-3 Bhuwan stated that the accused persons came towardsKodebod Canal, stopped near culvert and asked about Govind Singh;and though he expressed want of knowledge, the accused persons sawGovind Singh near culvert and assaulted him. This witness further statedthat during the said attack, when Govind fell down, he was dragged byholding his legs and while being dragged, the other accused persons kepton beating him. In cross-examination, this witness stated that he did notknow the names of the accused persons and he did not disclose theirnames to the police nor could say who assaulted on which part of thedeceased. The relevant part of the testimony of PW-3 reads as under: - “.…. I was near the culvert, it was 5:00 pm, Santosh, Prahlad,Rajesh and Nandlal were also with me. At that time accusedperson came towards Kodebode canal and stopped near theculvert. They asked me about Govind’s address. I replied, Ido not know. At the same time they saw Govind near theculvert. They ran towards Govind, started assaulting him. Allthe accused person carried lathi in their hand. They wereassaulting Govind with lathi itself. Due to assault Govind fell A

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down, at that time two persons caught his leg and draggedhim towards canal, other were going beating him.”

xxx Cross-examination

“ I do not know name of any of the accused person. In mypolice statement I did not tell the name of any of the accusedBperson. Who assaulted on which part of the deceased, I cannot tell. It is true that in my police statement I stated that20-25 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 heCascended the boundary of the canal and saw 15-20 persons attackingGovind Singh; two persons were dragging Govind Singh by legs acrossthe canal while others kept on beating him; one or two persons werecarrying tangiya and rest were holding lathi. The witness also statedthat Santosh and Prahlad went to intervene but were asked not toDintervene. This witness further stated in cross-examination that he didnot 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 thiscase who narrated the incident of assault on Govind Singh and specificallystated the names of some of the accused persons. Being the materialEwitness whose testimony has largely formed the basis of conviction, thematerial 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 withme. At the very moment accused persons came towards canaland road side. Govind Singh was also standing near the KulleyBridge. Accused persons abused him. They were saying thatGovind Singh has come after fighting. He has to be killedand they started assaulting. All the accused person carriedlathi. They assaulted by danda. When I went there and forbadethem 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 andChinta caught another leg, they dragged Govind to Kodebodefrom canal and other were going by beating him. I followedthem from some distance. The accused persons dragged F

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Govind Singh for 2 Km. Thereafter, I returned home. GovindSingh had died…”

xxx Cross-examination

“…Except Mangal, I saw all the accused person at the timeof incident. It is true that Kalley turning is 2½ Km. away fromKodebode. The barn of Tikaram is 1½ Km. away from Kalleyturning. It is wrong to say that the matter of dragging by theleg by Bharosa and Chinta is being wrongly stated by me.The sticks hit the deceased at one time therefore I cannot tellwhich accused hit him on which part. I stated name of 7-8persons. The quarrel went on for 10 minutes. I noted downthe 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 tome. At the time of incident Santosh and I forbade them tofight. The accused person reached on Kalley Bridge altogetherbut they came from different direction...”

Re-examination

“I stated name of Bharosa, Chinta, Bhanjan, Gareeb, Lakhan,Khemraj, Hemu, Keshav and Nand. I recognize the remainingaccused person by face. I know such persons by name only.

xxx Re-cross-examination

I do not know if more persons named Chintaram, Keshav maybe there. I know that Keshav is tailor but I did not state this tothe police……..

At the time of recording of my police statement Ex-D/5 I statedthat the accused persons came at the place of incident fromdifferent direction. I can not tell which of the accused camefrom which direction. The witness himself stated that all theaccused persons gathered at the place of incident.

…… It is true that my field is adjacent to the field of Chintaramand Gareeb Ram. It is wrong to say that I want to purchasetheir fields therefore I am implicating them….”

5.6. PW-9 Hiradhar partly narrated the prosecution story but didnot support the entire prosecution case and hence, was declared hostile.However, before being declared hostile, this witness, inter alia, statedas under:

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“I know the accused persons present in the court. I also knowdeceased Govind Singh. … I was taking tea with Kheduramin a hotel near the Kalley Bridge. At that time Angad Sahuwho belong to Kode bode came there and asked me if I hadseen Govind. I told him I did not see him. At the very momentI saw that Govind came from somewhere and stood there. Atthat time I went near Govind and told that Angad wassearching him. He did not give any reply. Seeing blood on hiscloths 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 beforeGovind Singh, Prahlad also came there. When we stood thereat that time accused persons who were resident of my villagereached there. I asked Khemraj what happened, then Khemrajtold that Govind has come beating Patwari, Duleshwar, theson of Patwari also stated the same. Santosh and Prahladtold them to stop don’t do anything here, saying that “we willnot stop” the accused persons proceeded. Khemraj andDuleshwar gave one-two lathi blow to Govind due to whichhe fell down on the earth. Seeing this I got afraid and wentnear Kheduram who was present in shop. He told lets movefrom here and immediately we moved from there. Thereafter,what happened I did not see.

×××Cross-examination for accused

…I stated the matter of Govind being interrogated by Angadto 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 thisto the police. I did not see any injury on the body of Govind.I stated to police the matter of being told by Khemraj andDuleshwar about Govind Singh beating the Patwari andcoming. I stated that Khemraj and Duleshwar assaultedGovind Singh by lathi to the police. If police did not recordthe statement as per my version I can not tell the reason. I didnot see Mangalram, Narad, Laxman, and Kedar there. I didnot see even Lakhan committing marpit. …..”

5.7. PW-16 Tikuram Yadav stated that at about 4:30 p.m., GovindSingh came to his barn on the bicycle belonging to Mangal Patwari and he saw injuries on the persons of Govind Singh who said that MangalPatwari had assaulted him by sword. According to this witness, GovindSingh demanded two hundred rupees which he did not give and thereafter,Govind Singh proceeded towards bus stand. The witness further statedthat later on, he saw the assault on Govind Singh from a far away placeand, therefore, he was unable to recognize the assailants; and later on,he got to know from his locality that deceased Govind Singh was assaultedby Bharosa, Chinta, Garib and their friends.

5.8. PW-8 Daulal, PW-10 Nand Kumar and PW-11 Bhagatramsaw Govind Singh in injured condition after the alleged attack byMangalram on him. PW-13 Punarad Ram and PW-14 Reshamlal hadbeen the witnesses to seizure proceedings in Ex.P/13 to P/27. Theywere declared hostile. While admitting their signatures Ex.P/13 to P/27,they stated that they were shown sticks etc. but were not told fromwhom they were seized.

5.9. PW-18 Dr. Pardeep Hishikar conducted post-mortem on thebody of the deceased Govind Singh. The description in the post-mortemreport regarding the injuries on the person of deceased Govind Singhhad been as under-:

“1. Two contusions over chest like chain mark size of each(a) 5”× 1" (b) 4" × 1".

2. Contusions over abdomen colour brownish blackish sizeof them (a) size of two contusions 5" × 1" (b) size of twocontusions 3" × ½” transverse (c) two contusion size 3" × ½” transverse (d) one contusion size 8" × 1" vertical.

3. Contusions over medial aspect of right thing colourblackish brownish sizes (a) 7" × ½” (b) 5" × ½” (c) 2" × ½”(d) 2" × ½”

4. Contusions over lethal aspect, right thing, blackish brownishcolour.

5. Contusions over front of knee size 4" × 2" blackishbrownish colour.

6. Lacerated wound over base of 2nd and 3rd toe left side 1cm × ½ cm × ½ cm clotted blood ++

7. Contusion over front of knee left size 1cm × 1cm.

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A8. Lacerated wound over left wrist size 1" × ½” × ½” bonedeep fracture lower third radius ulna left side.

9. Fractured proximal phalanx index and middle finger leftand fracture 2nd and 4th metacarpal bone left side.

10. Contusion dorsal aspect forearm size 1" × 1" and abrasionBback of left elbow size 4 cm × 4 cm.

11. Two lacerated wound over dorsal aspect right wrist sizesof each 1cm × 1cm × 1cm. Fracture lower third radius.

12. Fracture proximal phalanx middle and ring finger andCfracture of 2nd and 3rd metacarpal right ulna.13. Abrasion dorsal aspect elbow size 5cm × 4cm colourpinkish brownish.

14. Lacerated wound over right side face over cheek size3 cm × 1 cm × 1 cm.

D15. Lacerated wound over right side face over cheek size3 cm × 1 cm.

16. Contusion left side face size 3 cm × 2 cm colour blackishbrownish.

E17. Lacerated wound mid portion of nose size 3 cm × ½ cm ×½ cm. Fracture of nasal bone.

18. Lacerated wound over scalp right parietal region size 3" × ½” × ½” liner fracture over right parietal bone.”

This witness opined that the cause of death was shock, whichFmay be due to sudden rupture of liver and fracture of ribs of right andleft sides; and that the death was homicidal in nature.

6. On the other hand, the accused persons denied their involvementin the crime in question in their statements under Section 313 Code ofCriminal Procedure, 1973 (CrPC) and examined 5 witnesses in defence,Gbeing DW-1 Latkhor who accompanied A-14 Mangalram to police station;DW-2 Dilip Kumar, DW-3 Barsan, DW-4 R.L. Chandrakarand DW-5Dinesh Kumar in relation to the plea of alibi of A-12 Nand Kumar, A-13Lakhan, A-18 Kedar and A-17 Narad respectively.

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The findings of the Trial Court – as affirmed by the HighCourt A

7. Having taken the evidence and having heard the parties, theTrial Court framed as many as six points for determination in this casewhich read as under:- “1)Whether Govind Singh Netam has been murdered?

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2) Whether attempt has been made to commit murder ofDhanwaram Netam?

3) Whether the accused persons have committed the saidact by forming an unlawful assembly and committingriot and abetted the commission of aforesaid act inCfurtherance of common intention?

4) Whether accused persons had intention to commitmurder of Govind Singh and Dhanwaram?

5) Whether accused persons are guilty of rioting being armed with deadly weapons?

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6) If yes, then punishment.”

7.1. In its judgment and order dated 26.11.1999, the Trial Courtcarried out in-depth analysis of the prosecution evidence including thetestimony 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 officersPW-18 and PW-21. The Trial Court also examined the evidence adducedby the accused persons and thereafter, found the prosecution case provedbeyond reasonable doubt against some of the accused persons includingthe present appellants but not in relation to all the accused persons. Theconclusions of the Trial Court, as occurring in paragraphs 44 to 48 of thejudgment dated 26.11.1999 could be usefully reproduced as under:

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“44…. There is no proof of intention to cause death ofDhanwaram because the injuries sustained by Dhanwaramwere found on his palm, right side of head, left arm, jaw andback 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 inthe ordinary course of circumstances to cause the death ofDhanwaram. In the evidence of Dhanwaram PW/1 there is nosuch statement that the accused persons wanted to kill him atthe time of the incident….. According to the aforesaid, there GH

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is evidence that after causing injury the accused persons leftfrom the place. Therefore, in this circumstance only thisconclusion can be drawn that the intention of the accusedBharosaram, Chintaram, Duleshwar and Vivekanand wasmerely to inflict injuries on Dhanwaram. It is proved thatDhanwaram is severely injured and the same is knowingly orintentionally committed by the accused persons that onattacking Dhanwaram, he will be injured. Therefore, they havecommitted this act voluntarily. Hence, accused Bharosaram,Chintaram, Duleshwar and Vivekanand voluntarily causedgrievous hurt to Dhanwaram by doing maarpet…

45. The evidence with regard to rioting armed with deadlyweapons is considerable. The incident of causing death ofGovind Singh is considered as riot. The witness of incidentSantosh PW/2 stated that one of the accused was having atangiya. Bhawan Singh PW/3 stated that all accused werehaving laathi. Rajesh PW/4 stated that 1-2 persons werehaving tangiya and all the others were having laathis. PrahladPW/5 did not make any specific statement in this regard.Heeradhar PW/9 stated that only laathis were used. There isno evidence of using sword by any accused and no injuryinflicted by any sharp weapon sword or tangiya is found onthe body of the deceased. Therefore, it can be concluded thatall the accused persons were laced with laathis. Whether laathiis dangerous weapon or not, it can be considered under thecircumstances in which it is used. As in the case in hand, bythe use of laathis such injuries were inflicted by which deathof Govind Singh was caused, hence, it appears that theaccused possessed laathis for the purpose of causing grievoushurt. Hence it is proved that the named accused persons beingmembers of unlawful assembly committed riots by keepinglaathi as dangerous weapons and caused death of GovindSingh.

46. After considering the aforesaid evidence and all the othercircumstances, it is concluded that the accused no. 1Bharosaram, no. 2 Duleshwar, no. 4 Chintaram, no. 5 BhajanSingh, 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 asdangerous weapons, committed riot and whose common objectwas to cause death of Govind Singh and in furtherance oftheir common objective, the death of Govind Singh has beencaused near Kalle Bridge by each of the accused by inflictingsevere inuries with laathis. Hence, the offence underSec. 147, 148, 302 and 302 read with 149 of IPC is found tobe proved against the aforesaid accused persons.

47. The charge under Sec. 307 of IPC is not proved, but thecircumstances under the aforesaid charge which have beenbrought on record prove a lesser offence under Sec. 325 ofIPC. Such conviction can be ordered under under Sec. 222of CrPC. Hence, the accused Bharosa, Chintaram, Duleshwarand Vivekanand are held guilty for the offence underSec. 325 of the IPC for causing grievous hurt to Dhanwaram.

48. In the case in hand, no charge has been proved againstrest of the accused persons namely, Mukesh Nirmalkar,Vasudev, Chemanand, Mangalram, Gareeb ram, LakshmanSingh, Naradram and Kedarnath. Therefore, all the aboveaccused persons are acquitted for all charge leveled againstthem under Sec. 147, 148, 302 or 302 read with 149, 307 or307 read with 149 of IPC. The accused persons amongst theaforesaid who are in custody be released forthwith if notrequired 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 lifeimprisonment. Vivekanand (A-9) was found to be minor at the time ofincident and he was sentenced to one year and three months while noticingthat he had already undergone the sentence for a period of 405 days.

8. Against the aforesaid order of conviction, the appellants andother convicted accused preferred Criminal Appeal No. 3336 of 1999before the High Court, whereas the complainant preferred a CriminalRevision No. 517 of 2000 against the acquittal of the other accusedpersons. While passing the common judgment and order dated 12.09.2014,the High Court, after dealing with the contentions urged on behalf of theappellants herein and the co-accused, affirmed the decision of the TrialCourt and held that no defence had been taken by the accused persons A

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Athat they had gathered at the place of occurrence for some purposeother than assaulting the deceased. Further, no evidence was foundagainst the acquitted accused persons. Hence, the appeal as also therevision petition were dismissed. The High Court, inter alia, observedand held as under: -

B“23. True it is that every offence committed by a member of anunlawful assembly will not be necessarily ascribed to orvicariously fastened upon every other member of thatassembly with the aid of Section 149 of IPC. The likelihoodof causing of death by the nature of the actions of the assemblymust be show to be within the knowledge of member who is toCbe made vicariously liable for the death. Such knowledgemay reasonable be collected from the nature of the assembly,arms of behaviors at or before the scene of action. In thepresent case, there is evidence that accused No.3 Mukeshwas saying that he would definitely burst two firecrackersDand that there was pre-planning of the accused/appellantsfor killing two person. Furthermore, no defence has beentaken by the accused/appellants that they had gathered atthe place of occurrence for some purpose other thanassaulting the deceased. There is enough evidence to showthat the accused/appellant were having inimical relation withEthe deceased party, they all were searching him for beating,they arrived at the spot at the same time, though from differentdirections, waylaid the deceased and started beating him.Thereafter, while the deceased was being dragged by accusedno. 1 Bharosaram and accused no. 4 Chintaram by holdingFboth his legs, he was being beaten by the other accused/appellants.

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24. From the facts and the evidence adduced by theprosecution, it is apparent that all the accused/appellants hadreached the place of occurrence duly armed with weapons. Ifthis is the manner in which the accused/appellants had cometo the spot, it can not be said that they had not formed anunlawful assembly within the meaning of the said expressionas appeared in Section 141 of IPC. While membership of anunlawful assembly itself is an offence under Section 143 ofIPC, use of force by members of unlawful assembly gives rise G

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to the offence of rioting which is punishable either underSection 147 or 148 of IPC. The availability of arms in thehands of the accused/appellants and use of them has clearlybeen established by the prosecution not only by oral evidencebut also by medical evidence, according to which as many as18 injuries were found on the body of the deceased. Thusconsidering the evidence of the eyewitnesses, includinginjured eyewitness PW-1 Dhanwaram, as well as the medicalevidence, the number and nature of injuries caused to thedeceased Govind as well as PW-1 Dhanwaram, the mannerin which they were assaulted resulting in death of Govind, itis quite apparent that common object of their unlawfulassembly was to commit murder of the deceased and tovoluntarily cause grievous hut to PW-1 Dhanwaram. For thereason stated above, we find no force in the arguments of thecounsel for the appellants that case of the accused/ appellantsis covered by Exception 4 to Section 300 of IPC making them,at best, liable to be convicted under Section 304 Part -II ofIPC. The trial Court after due appreciation of the entireevidence on record has rightly convicted and sentenced theappellants as mentioned above and there is no illegality orinfirmity in the judgment impugned necessitating interferenceby this Court.

25. As regards acquittal of respondents No. 2 to 10 (inCr. Rev No. 517 of 2000), the trial Court after consideringall the factual and legal aspects of the case in its properperspective has recorded a finding that there is absolutely noevidence against these accused/respondents connecting themwith the crime in question. The said finding is based on properappreciation of the evidence on record. We find no illegalityor 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 dismissedand they are dismissed as such….”

Rival Contentions

9. Assailing the judgment and order aforesaid, affirming theirconviction and upholding the sentence as awarded, the appellants havepreferred the present appeals.

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A10. Learned counsel for the appellants, while restricting hissubmissions only to the charge under Section 302/149 IPC, hasstrenuously argued that the alleged eye-witnesses made generalstatements that all the accused persons who were 17-18 in number cameand assaulted the deceased Govind Singh but the appellants were notspecifically named by these witnesses and conviction could not haveBbeen based on such vague and cursory statements which are not sufficientto prove the culpability of any of the appellant in the crime in question.The learned counsel has referred to the decision in Chandra ShekharBind and Ors. v. State of Bihar: AIR 2001 SC 4024 to submit thatwhile dealing with this case concerning a large number of allegedCoffenders, conviction could be sustained only if two or more witnessesgave a consistent account of the incident. The learned counsel wouldargue that out of the four-five alleged eye-witnesses to the assault ofGovind Singh, no two witnesses named the accused persons except theappellant Bhaorosaram (A-1) and another accused Chintaram (A-4);and there being no cogent and consistent evidence against the otherDappellants, they deserve to be exonerated like the acquitted accusedpersons. The learned counsel has also relied upon the decision in Stateof Rajasthan v. Sheeshpal : AIR 2016 SC 4958 to submit that theguilt of the accused must be proved beyond all reasonable doubts; andon the facts and in the circumstances of this case, when two views areEpossible on the evidence adduced, one pointing to the guilt of the accusedand other to his innocence, the view which is favourable to the accusedshould be accepted.

10.1. The learned counsel for the appellants has also argued inthe alternative that even if on the evidence on record, the accusationFagainst the appellant Bharosaram (A-1) is found established, he hadundergone nearly 11 years of imprisonment and in the facts andcircumstances of the case and looking to the role assigned, his convictionmay be altered to that under Part I of Section 304 of IPC and the sentencemay be reduced to the period already under gone while the otherappellants Duleshwar, Nand Kumar, Bhanjan Singh, Keshav Prasad,GKhemuram and Lakhan be acquitted from the charge under Section302/149 IPC.

11. Per contra, learned counsel for the State has supported theconviction of appellants with the submission that the Trial Court and theHigh Court have dealt with each and every argument raised by theHappellants and the impugned judgments do not suffer from any infirmity

so as to call for interference. The learned counsel has argued that all theaccused appellants have been identified by the eye-witnesses andparticularly by the star witness PW-5, who categorically deposed thenames 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 theincident and the weapons used to kill the deceased. The learned counselhas 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 witnesscannot be rejected in toto as the evidentiary value of his testimony is notlost and can be accepted to the extent that the version is foundcorroborated with other material evidence. The learned counsel hasreferred to the testimony of PW-9 Hiradhar and has contended thateven if this witness turned hostile, he has specifically taken the name oftwo accused persons Khemraj and Duleshwar being involved in beatingthe deceased Govind; and his testimony fortifies the case against them.Further, with reference to several decisions of this Court including thosein Lala Ram (D) through Duli Chandi v. State of Haryana : (1999)9 SCC 525 and Kallu v. State of Madhya Pradesh : (2006) 10 SCC313, the learned counsel has contended that the minor discrepancies inthe testimony of eye-witnesses do not operate against the case of theprosecution; rather some discrepancies in the narrations are bound tooccur when the witnesses speak on details. According to the learnedcounsel, there being no material contradiction, the evidence on recordconsistently prove the case against the accused persons.

11.1. The learned counsel for the respondent State has also referredto the decision in Madan Singh v. State of Rajasthan: (1978) 4 SCC435 to submit that recovery of bloods stained clothes and weapons fromthe accused persons having been established in the statement of PW-20,the IO; and the evidence of such recovery having not been effectivelycontroverted, the complicity of the appellants in the case is furthercorroborated and their conviction does not call for interference.

11.2. Lastly, learned counsel for the respondent State has referredto the decision in Lalji v. State of UP : (1989) 1 SCC 437 to submitthat once it is found that the accused persons formed an unlawful assemblyand committed the offence, every member of such unlawful assemblywould remain liable and no proof of any particular role or act on the partof any particular accused is requisite. However, the learned counsel hassubmitted in his written submissions that Nand Kumar (A-12) has notbeen named in the testimony of eye-witnesses.

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A12. We have heard learned counsel for the parties at length andhave 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 incidentstook place in the afternoon and evening hours of 15.10.1998: one inBwhich PW-1 Dhanwaram sustained grievous injuries and another whichled 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 otheraccused persons, another incident took place the same day and aroundthe same time, in which the deceased Govind Singh allegedly assaultedCMangalram (A-14). The fact that there had been a dispute in relation tothe fields, involving Biselal Sahu (brother of the accused Mangalram) onone hand and PW-1 Dhanwaram on the other hand remains undeniable.It is also apparent that the incidents in question had their genesis in sucha dispute. It had been the prosecution case that at least six of the accusedpersons namely, Bharosaram (A-1), Duleshwar (A-2), ChintaramD(A-4), Khemraj (A-6), Vivekanand (A-9) and Kedarnath (A-18)assaulted PW-1 Dhanwaramat about 4.30-5.00 p.m. This assault on himled to multiple injuries including fracture of jaw bones and the injuredDhanwaram fell unconscious. For this incident and for assault onDhanwaram, the accused persons were also tried for the offence underESection 307 IPC in this very case; and four of them, including theappellants Bharosaram (A-1) and Duleshwar (A-2), were convicted,albeit for the offence under Section 325 IPC. Such conviction has notspecifically been challenged in these appeals and even otherwise, thereappears no reason to disturb such conviction based on cogent evidence.It is, thus, seen that there existed enmity in the parties and on the fatefulFday, the tempers soured high, with assault on PW-1 Dhanwaram. It isthe prosecution case that after such assault on Dhanwaram, the assemblywent in search of Dhanwaram’s brother (i.e., the deceased Govind Singh)and after finding him near Kalley Bridge, the members of the assemblypounced upon him and he was beaten to death while being dragged byGlegs. In these appeals, we are concerned essentially with the convictionof appellants under Section 302/149 IPC. The relevant questions arisingin these appeals may be examined in the backdrop of the facts andsurrounding factors as noticed above.

14. Formation of an unlawful assembly with common object beingHthe basic ingredient for invoking Section 149 IPC, the first point to be

determined is as to whether formation of such an unlawful assembly isestablished. In a comprehension of the evidence on record, in our view,the fact that a large assembly was indeed formed, where the memberswere armed with weapons including lathis and tangiyas and they indulgedin assault over Govind Singh, is evident on the face of record with theconsistent testimonies of the eye-witnesses PW-2 Santosh Kumar,PW-3 Bhuwan, PW-4 Rajesh and PW-5 Prahlad Yadav.[6] Even thewitness declared hostile i.e., PW-9 Hiradhar has also testified to the factof assault by an assembly over Govind Singh; he even named at leasttwo of the assailants. We shall come to the question of identity of eachof the accused person a little later. Suffice it to observe at this juncturethat the fact of formation of an unlawful assembly with weapons isamply established. It has rightly been argued on behalf of the respondentswith reference to Lalji’s case (supra), that once formation of unlawfulassembly at the time of committing of offence is established, the questionof specific role of an individual member of the assembly is renderedsecondary. In other words, the prosecution need not prove any specificovert act on the part of each and every member of that assembly. It isalso established beyond doubt in the present case that the deceasedGovind Singh was brutally beaten black and blue with extensive injuriesall over his body, including contusions, lacerated wounds and multiplefractures of various bones and ribs. The post-mortem report and themedical opinion that Govind Singh died due to shock with rupture of liverand fracture of ribs leave nothing to doubt that he was done to harsh andgruesome death with merciless thrashing, including multiple use of bluntweapons like lathi. Thus, the fact that there had been an assembly withthe common object of battering Govind Singh to death is hardly of anydoubt. The manner of causing death of Govind Singh makes it clear thatthe intention of assailants forming such assembly had only been to causedeath and the acts were done with that intent alone. The question ofidentity of the particular accused as the member of this assembly would,of course, require consideration to find if the prosecution case is provedbeyond reasonable doubt against him or not.

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 personswhereas according to PW-3 Bhuwan, they had been 20-25 in number and according toPW-4 Rajesh, the number of members of this assembly was about 15-20.

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AMultiple accused persons and several eye-witnesses:principles for appreciation of evidence

15. Before embarking on the question aforesaid, we may refer tothe facts that in the present case, as many as 12 persons were named inthe FIR and as many as 18 persons were tried for the offences in question.BIn the trial, apart from other witnesses, the prosecution examined severalpersons as eye-witnesses, including PW-2 Santosh Kumar, PW-3Bhuwan, PW-4 Rajesh, PW-5 Prahlad Yadav, PW-9 Hiradhar andPW-16 Tikuram Yadav. The Trial Court convicted 9 accused persons,including the present appellants, for the offences under Sections 147,148 and 302 read with Section 149 IPC and the High Court confirmedCsuch conviction.[7] In regard to such a case involving multiple accusedpersons and several witnesses, it would be worthwhile to refer to theprinciples expounded in Masalti v. State of U.P.: (1964) 8 SCR 133,as reiterated in the case of Chandra Shekhar Bind(supra) in thefollowing:D“9. However, this is an incident in which a large number ofaccused had participated. The Constitution Bench of thisCourt has, in the case of Masalti v. State of U.P.: AIR 1965 SC202 held that under the Evidence Act, trustworthy evidencegiven by a single witness would be enough to convict theaccused persons, whereas evidence given by half-a-dozenEwitnesses which is not trustworthy would not be enough tosustain the conviction. It was held that where a criminal courthas to deal with evidence pertaining to the commission of anoffence involving a large number of offenders, it is usual toadopt the test that the conviction could be sustained only if itFis supported by two or three or more witnesses who give aconsistent account of the incident. It was held that in a sense,the test may be described as mechanical, but it cannot betreated as irrational or unreasonable. It was held that eventhough it is the quality of the evidence that matters and notthe number of witnesses, still it is useful to adopt such aGmechanical test.

10. This two-witness theory has also been adopted by thisCourt in the case of Binay Kumar Singh v. State of Bihar: 19971 SCC 283. It is held that there is no rule of evidence that noconviction can be based unless a certain minimum number of H7 As noticed, 7 of these convicted accused are before us as appellants whereas the othertwo namely, Chintaram (A-4) and Khemraj (A-6) have not appealed against theirconviction and sentence.

witnesses have identified a particular accused as a memberof the unlawful assembly. It is held that it is axiomatic thatevidence is not to be counted but only weighed and it is notthe quantity of evidence but the quality that matters. It is heldthat even the testimony of one single witness, if wholly reliable,is sufficient to establish the identification of an accused as amember of an unlawful assembly. It is held that all the same,when the size of the unlawful assembly is quite large andmany persons would have witnessed the incident, it would bea prudent exercise to insist on at least two reliable witnessesto vouchsafe the identification of an accused as a participantin the rioting.”

15.1. Thus, it is the quality of evidence that matters and not thequantity; and even the testimony of a single witness maybe sufficient toestablish the identity of an accused as member of an unlawful assemblybut, when the size of assembly is quite large and many persons havewitnessed the incident; and when a witness deposes in general terms, itwould be useful to adopt the test of consistency of more than one witnessso as to remove any doubt about identity of an accused as a member ofthe assembly in question. However, even if adopting such a test ofconsistency, what is to be looked for is the ‘consistent account of theincident’; and the requirement of consistency cannot be overstretchedas if to search for repetition of each and every name of the accused ineach and every testimony. In other words, the comprehension of overallevidence on record is requisite; and mere counting of heads or mererecitation of names or omission of any name in the testimony of anyparticular witness cannot be decisive of the matter. In such facts andcircumstances, even the relevance of the corroborating facts and factorslike that of recovery of weapons or any other article co-related with thecrime in question cannot be ignored altogether.

15.2 In the present case, it is noticed that the Trial Courtpainstakingly analysed the evidence on record but while recording itsconclusion, largely proceeded to record conviction on the basis of thetestimony of PW-5 Prahlad Yadav only, though it referred to thecorroboration in relation to some of the accused persons in the testimonyof some of the other witnesses too. The High Court, though the firstCourt of appeal, essentially proceeded only on the basis of findings ofthe Trial Court. In the circumstances of the case, it appears just and AB

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Aproper that overall scenario emerging from the evidence on record betaken note of and then, the case in relation to each of the accused personbe analysed.

The overall scenario concerning the incident in question

16. As per the testimony of PW-2 Santosh Kumar, on the date ofBincident, around 5.00 p.m., he was present at the Cycle Shop near KalleyBridge with PW-3 Bhuwan, PW-4 Rajesh and PW-5 Prahlad Yadavalong with another person Angad. It was asserted by PW-2 SantoshKumar that the accused persons came to the spot carrying sticks andhatchet; they started arguments with Govind Singh; and they asked theCother witnesses to move away while avowing that Govind Singh had tobe killed. The witness also testified that the accused persons startedassaulting Govind Singh; and that Bharosaram and Chintaram caughtboth legs of Govind Singh and dragged while others kept on beating him.PW-3 Bhuwanand PW-4 Rajesh again testified to the occurrence withdeceased being caught by legs and dragged while others kept on beatingDhim. However, PW-3 and PW-4 did not name any particular person asbeing the assailant.

17. In the testimony of PW-5 Prahlad Yadav, not only the incidenthas been narrated in fuller details but several names of assailants haveoccurred. In the first place, he asserted that Bharosa (A-1), NandE(A-12), Chinta (A-4) and Bhanjan (A-5) asked him to move away. Thewitness further stated that Bharosaram (A-1) and Chintaram (A-4)caught the deceased by legs while others kept on beating him. Hespecifically denied the presence of the accused Mangalram (A-14) duringthe incident. In re-examination, he specifically stated the names ofFBharosaram (A-1), Chintaram (A-4), Bhanjan Singh (A-5), Garib RamSahu (A-15), Lakhan (A-13), Hemu (a person of this name was neithermentioned in FIR nor tried by the Trial Court), Keshav Prasad (A-7)and Nand Kumar (A-12). PW-9 Hiradhar, though declared hostile fornot fully supporting the prosecution case, did corroborate the testimonyof PW-2 Santosh Kumar and PW-5 Prahlad Yadav about the assemblyGof persons searching for deceased Govind Singh; and Khemraj (A-6)and Duleshwar (A-2) having given lathi blows to Govind Singh due towhich he fell down. This witness stated that he moved away after suchblows were given to Govind Singh and did not see the happeningsthereafter. PW-16 Tikuram Yadav was also cited as an eye-witness butHstated that he had seen such assault from a faraway place and he was unable to recognise the assailants. Coupled with such testimony remainsthe fact that several blood-stained weapons and clothes were seized byI.O. during investigation. Though the witnesses to such seizureproceeding, PW-13 Punarad Ram and PW-14 Reshamlal, have beendeclared hostile but nothing has occurred in the testimony of PW-20V.S. Urmaliya, the Investigating Officer to disbelieve or discard histestimony as regards such seizure proceedings.

Individual cases of the accused persons

18. Keeping in view the scenario concerning the incident in questionand the account given out by the eye-witnesses, we may analyse thecase in relation to the appellants before us. It could be usefully reiteratedthat as many as 18 accused persons were tried in this case and the TrialCourt convicted 9 of them for the offences under Sections 147, 148,302/149 IPC while acquitting the others for these charges pertaining tothe incident leading to the death of Govind Singh. So far as the acquittedaccused persons are concerned, with dismissal of the revision petitionby the High Court, and there being no further challenge, such acquittalhas, obviously, attained finality. As noticed, so far as the 9 convictedaccused persons are concerned, 7 have appealed to this Court while theothers, namely Chintaram (A-4) and Khemraj (A-6) have not challengedtheir conviction.

19. As noticed, there is substantial consistency in the account ofthe incident as given out by the eye-witnesses. The fact that there hadbeen a large gathering that was searching for Govind Singh and afterfinding him near Kalley Bridge, the members of the assembly pouncedon 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 accountof 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 ofthe members of the assembly. Both PW-2 and PW-3 gave out the namesof the persons who dragged Govind Singh as Bharosaram (A-1) andChintaram (A-4). There had been another fact consistently stated byPW-2 Santosh Kumar and PW-5 Prahlad Yadav that when theyattempted to intervene, some of the persons of the assembly threatenedand asked them to move away. PW-5 Prahlad Yadav specifically gaveout 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 tomove away. Even the hostile witness PW-9 specifically stated that AB

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AKhemraj (A-6) and Duleshwar (A-2) assaulted the deceased GovindSingh.

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AKhemraj (A-6) and Duleshwar (A-2) assaulted the deceased GovindSingh.

20. In the aforesaid status of the testimony of the eye-witnessesand the nature of incident, in our view, the account given by PrahladYadav (PW-5), who had specifically named several of the accusedBpersons, does not appear suffering from any infirmity and in our view,the conviction of some of the appellants, in whose relation no reasonabledoubt exists, could be sustained on the basis of his testimony becausethe same stands corroborated on the material particulars in the testimonyof other witnesses.

C21. Having noticed the overall scenario relating to the incident inquestion and the position obtaining on record in relation to the testimoniesof the witnesses, we may now examine the case of each of the appellantsbefore us individually.

21.1. So far as the appellant Bharosaram (A-1) is concerned, it isDestablished that he had been the part of assembly right from the beginninginasmuch as he was amongst the assailants who caused grievous injuriesto PW-1 Dhanwaram in the incident that preceded the incident resultingin demise of Govind Singh.The eye-witness PW-5 named him as one ofthe accused persons assaulting the deceased. It is also established in thetestimony of the witnesses PW-2 and PW-5 that the deceased wasEdragged by legs by two persons, one being this accused Bharosaram(A-1). Such a fact that the deceased was indeed dragged by legs hasbeen stated by PW-3 Bhuwan and PW-4 Rajesh also. The eye-witnessPW-5 also stated that when the accused persons were assaulting GovindSingh, he went there to intervene but was threatened by Bharosa, Nand,FChinta and Bhanjan.The happening of the incident in question and threatsby some of the assailants to the witnesses is duly corroborated in thetestimony of PW-2 Santosh Kumar. Coupled with these factors, theInvestigating Officer seized one tangiya and a blood-stained lungi fromthis accused Bharosaram (vide Ex. P/13). Though this accused allegedthat he was not present during the incident and had been falsely implicatedGbut there is no specific defence evidence on his plea of alibi nor there isany other specific defence version of this accused. In the given set offacts and circumstances, in our view, it is established beyond doubt thatthis accused Bharosaram (A-1) had been the member of the assemblythat attacked and thrashed the deceased Govind Singh.

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21.2. As regards the appellant Duleshwar (A-2), again, it isestablished that he was amongst the assailants who caused grievousinjuries to PW-1 Dhanwaram in the incident that preceded the incidentresulting in demise of Govind Singh. Apart from PW-5 Prahlad Yadavnaming him as one the members of the assembly that assaulted thedeceased, even the otherwise hostile witness PW-9 Hiradhar specificallystated that this accused Duleshwar had been one of the persons whoassaulted the deceased Govind Singh. As observed, merely for this witnessPW-9 turning hostile in relation to some part of the prosecution case, hisentire testimony cannot be discarded, if it inspires confidence [videPaulmeli’s case (supra)]. There is no reason of false implication of thisaccused by PW-9. Moreover, PW-20, the Investigating Officer seized alathi and a vest from this accused (vide Ex. P/14) both carrying blood-stains. This accused similarly alleged that he was not present during theincident and had been falsely implicated but there is no specific defenceevidence on his plea of alibi nor there is any other specific defenceversion. In the totality of circumstances, in our view, it is establishedbeyond doubt that this accused Duleshwar (A-2) had also been themember of the assembly that attacked and thrashed the deceased GovindSingh.

21.3. As regards the appellant Bhanjan Singh (A-5), theeye-witness PW-5 named him as one of the accused persons assaultingthe deceased. This accused was also named by PW-5 as one of themembers of the assembly that threatened the witnesses to move away.The happening of the incident in question and threats by some of theassailants to the witnesses is duly corroborated in the testimony of PW-2 Santosh Kumar. Coupled with these factors, PW-20, the InvestigatingOfficer, seized a blood-stained lathi from this accused also (vide Ex.P/16). Though this accused stated that he was falsely implicated butthere had not been any specific defence plea on his part. In the given setof facts and circumstances, there is no reason to doubt that he had alsobeen the member of the assembly that attacked and thrashed the deceasedGovind Singh.

21.4. So far as the appellant Keshav Prasad (A-7) is concerned,though other witnesses did not categorically state his name but theeye-witness PW-5 Prahlad Yadav, during his re-examination,specificallynamed him as one of the accused persons who assaulted the deceased.The lathi recovered from this accused (vide Ex. P/18) also carried blood- A

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Astains. A feeble attempt was made for suggesting the plea of alibi whereDW-1 Latkhor said that this accused went to Dhamtari to get his sewingmachine 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 Section313 CrPC and there is no cogent evidence on record to establish thepresence of this accused at any other place during the time of incident.BIn the totality of circumstances of this case, we find no reason to extendhim the benefit of doubt and there is no reason to interfere with thefindings that he had also been the member of the assembly that assaultedthe deceased Govind Singh.

21.5. So far as the appellant Khemuram (A-8) is concerned, weCfind it difficult to endorse his conviction. Though one name ‘Hemu’ hasoccurred in the re-examination of PW-5 Prahlad Yadav but not specificallythe name of this accused Khemuram[8]. The prosecution has not takenany steps to clarify if there was any discrepancy in regard to the statementof this witness PW-5. No other eye-witness has named this accusedDKhemuramas one of the members of the mob that assaulted the deceasedGovind Singh nor any other act of this accused has come on recordwhich could connect him with the assembly in question and the place ofincident. 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 convincingEevidence about his presence at the scene of crime and his participationin assaulting the deceased, in our view, this accused Khemuram (A-8) isentitled to the benefit of doubt and the findings in his relation cannot besustained.

21.6. As regards the appellant Nand Kumar (A-12), though lathiFsaid to have been recovered from him (vide Ex. P/27) was not showncarrying any blood-stains and it has been suggested in the submissionson 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 hadclearly named this accused as one of the persons who threatened the Gwitnesses and further stated his name in the re-examination along withthe name of other assailants. As noticed, the happening of the incident inquestion and threats by some of the assailants to the witnesses is dulycorroborated in the testimony of PW-2 Santosh Kumar. In the given 8 We have examined the original record too and it is clear that the name mentioned in theHre-examination of PW-5 is ‘Hemu’ and not ‘Khemu’.

circumstances, the case against this appellant Nand Kumar more or lessstands at the same footing as that against the co-accused Bharosaram(A-1) and Bhanjan Singh (A-5), as discussed in the foregoing paragraphs21.1 and 21.3. Though a witness DW-2 Dilip Kumar was examined indefence that this accused Nand Kumar was present in his village Darraon 15.10.1998 at the relevant time and was in the field from3.00-6.00 p.m. but no such specific plea was taken by him in his defenceversion. The Trial Court has rejected such evidence as after-thoughtand rightly so. In the given set of facts and circumstances, there is noreason to interfere with the findings that Nand Kumar (A-12) had alsobeen the member of the assembly that assaulted the deceased GovindSingh.

21.7. As regards the appellant Lakhan (A-13), again, it is noticedthat PW-5 Prahlad Yadav stated his name in the re-examination butthen, no other eye-witness named him as one of the members of themob that assaulted the deceased Govind Singh nor any other act of thisaccused has come on record which could connect him with the assemblyin question and the place of incident. Thus, there had been want ofcorroboration of the statement of PW-5 by other witnesses in regard tothe involvement of this accused Lakhan. The alleged weapon lathi saidto have been recovered at the instance of this accused (vide Ex. P/26) isalso not shown carrying blood-stains. Though this accused also led indefence evidence in the form of DW-3 Barsan who deposed that thisaccused was in other village Bhururenga and left his village on 15.10.1998at about 5.00-5.30 and that the distance of the two villages was about 15kms but then, there had been discrepancies regarding the dates andtimein his testimony and no such specific plea of alibi was taken by thisaccused in his defence version. However, even if the defence evidencein his regard is not accepted, as noticed, a reasonable doubt still remainsif this accused Lakhan was a part of the assembly in question. In thegiven 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 foregoingparagraphs, 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 assaultedand thrashed the deceased Govind Singh to death is established on recordand there appears no reason to interfere with the findings on their A

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Aconviction. However, in our view, the prosecution has failed to prove itscase 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 regardto the nature of inquiry herein, particularly that relating to the formationBof unlawful assembly within the meaning of Section 149 IPC, that 2 ofthe accused persons who stand convicted for offences under Sections147, 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 statusof record, they do form the part of the same assembly in question thatattacked and thrashed Govind Singh to death. As noticed, the eye-witnessCPW-5 named Chintaram (A-4) as one of the accused persons assaultingthe deceased and one of the assailants who threatened the witnesses atthe time of the incident. The happening of the incident in question andthreats by some of the assailants to the witnesses is duly corroborated inthe testimony of PW-2 Santosh Kumar. Moreover, PW-2 Santosh Kumar

Das also PW-5 PrahladYadav have specifically named the accusedChintaram (A-4) as one of the persons dragging the deceased by legs.The fact that the deceased was indeed dragged by legs has been statedby PW-3 Bhuwan and PW-4 Rajesh also. PW-20 V.S. Urmaliya, theInvestigating Officer seized a lathi and vest from this accused Chintaram (A-4), both carrying blood-stains (vide Ex. P/15). As regards KhemrajE(A-6), it is noticed that his participation in the assembly that had batteredGovind Singh to death has been stated by at least 2 witnesses namely,PW-5 Prahlad Yadav and PW-9 Hiradhar. As noticed, PW-9 Hiradharwas declared hostile for not supporting the prosecution case in toto, buthe specifically stated that this accused Khemraj (A-6) and the otherFaccused-appellant Duleshwar (A-2) assaulted the deceased GovindSingh. It is also noticed that the investigating officer, PW-20 V.S. Urmaliyaseized one lathi and one shirt from this accused Khemraj (A-6), carryingblood-stains (vide Ex. P/17). Thus, on the given status of record, thesaid accused persons Chintaram (A-4) and Khemraj (A-6) also formthe part of the same assembly in question that attacked and thrashedGGovind Singh to death.

24. Before concluding, we may also deal with the submissionsmade in the alternative for converting the conviction to the one underPart I of Section 304 IPC. In our view, the submissions in this regardremain bereft of substance and could only be rejected. As noticed, it isH

evident that the deceased Govind Singh was brutally beaten black andblue by a large assembly of assailants and he sustained extensive injuriesall over his body, including contusions, lacerated wounds and multiplefractures of various bones and ribs and he died due to shock with ruptureof liver and fracture of ribs. The manner of execution of its object by theassembly with dragging of the deceased by legs and merciless thrashing,including multiple use of blunt weapons like lathi, leave nothing to doubtthat the intention of assailants forming such assembly had only been tocause death and the acts were done with that intent alone. In the givenset of facts and circumstances, there appears no reason to consider thepresent one to be a case of culpable homicide not amount to murder. Inour view, conviction of the accused persons, against whom the case ofthe prosecution is established beyond reasonable doubt, for offencesunder Sections 147, 148 and 302/149 remains unexceptionable.

Conclusion

25. For what has been discussed hereinabove, we find that theaccused-appellants Bharosaram (A-1), Duleshwar (A-2), Bhanjan Singh(A-5), Keshav Prasad (A-7) and Nand Kumar (A-12) have rightly beenconvicted with other co-accused persons for the offences under Section147,148, 302/149; and the appeals filed by these accused-appellantsdeserve to be dismissed. However, in our view, the prosecution has failedto prove its case beyond reasonable doubt against the accused-appellantsKhemuram (A-8) and Lakhan (A-13), who deserve to be acquitted onbenefit of doubt.

26. Accordingly, Criminal Appeal Nos. 1813 of 2017 and 1815 of2017 are dismissed whereas Criminal Appeal No. 1814 of 2017 is allowedin part and the impugned judgments are set aside in relation to theaccused-appellants Khemuram (A-8) and Lakhan(A-13). They be setat liberty forthwith, if not required in any other case.

Kalpana K. Tripathy

Appeals disposed of.

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