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

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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 co- accused 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.

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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.

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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

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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.

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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; PW-

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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.

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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  cross-

examination,  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

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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 cross-

examination 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

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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….”

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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

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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. PW-

13 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”

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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

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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 co-

accused, 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

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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 (A-

1)  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 (A-

18) 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 eye-

witnesses  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 eye-

witnesses, including PW-2 Santosh Kumar, PW-3 Bhuwan, PW-4 Rajesh, PW-

5 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

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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 (A-

6) 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

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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 blood-

stained 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

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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.

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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 re-

examination  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 blood-

stains 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 eye-

witness named him as one of  the members of  the mob that assaulted the

deceased Govind Singh nor any other act of this accused has come on record

which  could  connect  him with  the  assembly  in  question  and  the  place  of

incident. Thus, there had been want of corroboration of the statement of PW-5

by other witnesses in regard to the involvement of this accused Lakhan. The

alleged  weapon  lathi said  to  have  been  recovered at  the  instance of  this

35

accused (vide Ex. P/26) is also not shown carrying blood-stains. Though this

accused  also  led  in  defence  evidence  in  the  form  of  DW-3  Barsan  who

deposed that this accused was in other village Bhururenga and left his village

on 15.10.1998 at about 5.00-5.30 and that the distance of the two villages was

about 15 kms but then, there had  been discrepancies regarding the dates and

time in his  testimony and no such specific  plea of  alibi  was taken by this

accused in his defence version. However, even if the defence evidence in his

regard is not accepted, as noticed,  a reasonable doubt  still  remains if  this

accused  Lakhan  was  a  part  of  the  assembly  in  question.  In  the  given

circumstances, we are of the view that this accused Lakhan (A-13) is also

entitled to benefit of doubt.

22. In summation of what has been discussed in the foregoing paragraphs,

in our view, the involvement of appellants Bharosaram (A-1), Duleshwar (A-2),

Bhanjan Singh (A-5), Keshav Prasad (A-7) and  Nand Kumar (A-12) as the

members of the assembly that assaulted and thrashed the deceased Govind

Singh  to  death  is  established  on  record  and  there  appears  no  reason  to

interfere  with  the  findings  on  their  conviction.  However,  in  our  view,  the

prosecution has failed to prove its case beyond reasonable doubt against the

appellants Khemuram (A-8) and Lakhan (A-13) and they are entitled to the

benefit of doubt.

23. In  the  passing,  we may also  usefully  reiterate,  having regard to  the

nature of inquiry herein, particularly that relating to the formation of unlawful

assembly  within  the  meaning  of  Section  149  IPC,  that  2  of  the  accused

36

persons who stand convicted for offences under Sections 147, 148, 302/149

IPC  in  this  very  case  viz.,  Chintaram  (A-4)  and  Khemraj  (A-6)  have  not

appealed against their conviction and on the given status of record, they do

form the part of the same assembly in question that attacked and thrashed

Govind Singh to death. As noticed, the eye-witness PW-5 named Chintaram

(A-4) as one of the accused persons assaulting the deceased and one of the

assailants  who threatened the  witnesses  at  the time of  the incident.   The

happening of the incident in question and threats by some of the assailants to

the witnesses is duly corroborated in the testimony of PW-2 Santosh Kumar.

Moreover,  PW-2  Santosh  Kumar  as  also  PW-5  Prahlad  Yadav  have

specifically  named  the  accused  Chintaram  (A-4)  as  one  of  the  persons

dragging  the  deceased  by  legs.  The  fact  that  the  deceased  was  indeed

dragged by legs has been stated by PW-3 Bhuwan and PW-4 Rajesh also.

PW-20 V.S. Urmaliya, the Investigating Officer seized a lathi and vest from this

accused  Chintaram  (A-4),  both  carrying  blood-stains  (vide  Ex.  P/15).  As

regards Khemraj (A-6), it is noticed that his participation in the assembly that

had battered Govind Singh to death has been stated by at least 2 witnesses

namely, PW-5 Prahlad Yadav and PW-9 Hiradhar.  As noticed, PW-9 Hiradhar

was declared hostile for not supporting the prosecution case in  toto, but he

specifically  stated that  this  accused Khemraj  (A-6)  and the other accused-

appellant Duleshwar (A-2) assaulted the deceased Govind Singh. It is also

noticed that the investigating officer, PW-20 V.S. Urmaliya seized one lathi and

one shirt  from this  accused Khemraj  (A-6),  carrying blood-stains  (vide  Ex.

37

P/17).  Thus,  on  the  given  status  of  record,  the  said  accused  persons

Chintaram (A-4) and Khemraj (A-6) also form the part of the same assembly in

question that attacked and thrashed Govind Singh to death.

24. Before concluding, we may also deal with the submissions made in the

alternative for converting the conviction to the one under Part I of Section 304

IPC. In our view, the submissions in this regard remain bereft of substance

and could only be rejected. As noticed, it is evident that the deceased Govind

Singh was brutally beaten black and blue by a large assembly of assailants

and he sustained extensive injuries all  over his body, including contusions,

lacerated wounds and multiple fractures of various bones and ribs and he died

due to shock with rupture of liver and fracture of ribs. The manner of execution

of  its  object  by  the  assembly  with  dragging  of  the  deceased by legs  and

merciless thrashing, including multiple use of blunt weapons like  lathi, leave

nothing to doubt that the intention of assailants forming such assembly had

only been to cause death and the acts were done with that intent alone. In the

given set of facts and circumstances, there appears no reason to consider the

present one to be a case of culpable homicide not amount to murder. In our

view,  conviction  of  the  accused  persons,  against  whom  the  case  of  the

prosecution  is  established  beyond  reasonable  doubt,  for  offences  under

Sections 147, 148 and 302/149 remains unexceptionable.   

Conclusion

25.  For what has been discussed hereinabove, we find that the accused-

appellants 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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