# DULESHWAR & ANR v. THE STATE OF M.P. (NOW CHHATTISGARH)

- **Citation:** [2020] 5 S.C.R. 1001
- **Court:** Supreme Court of India
- **Decided:** 2020-01-21
- **Case number:** Criminal Appeal No. 1813 of 2017
- **Bench:** A. M. Khanwilkar, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/duleshwar-anr-v-the-state-of-m-p-now-chhattisgarh-34153
- **Pages:** 37

## Headnote

Penal Code,1860:
ss. 147, 148, 302, 302/149 and 325 - Prosecution under - Of
18 accused persons - For causing grievous injury to one person
PW1 and causing death of another - In two different incidents -
Eye-witnesses to both the incidents - High Court convicted 10
accused while acquitting 8 accused giving them benefit of doubt -
Appeal by 9 of the convicted accused persons and Revision filed by
complainant against acquitted accused persons - High Court
affirmed the order of trial court - Appeal to Supreme Court by 7 of
the convicted accused - Held: It is proved from the consistent
testimonies of eye-witnesses that the appellants-accused 1, 2, 5, 7
and 12 formed unlawful assembly with weapons and indulged in
the assault - Count of witnesses is further corroborated by recovery
of blood-stained weapons and clothes - Hence their conviction is
sustained - However, prosecution failed to prove its case beyond
reasonable 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 lathis
and tangiyas and they indulged in assault over the deceased, is
evident on the face of record with the consistent testimonies of
the eye-witnesses PW-2, PW-3, PW-4 and PW-5. Even the witness
declared hostile i.e., PW-9 has also testified to the fact of assault
by an assembly over the deceased; he even named at least two of
the assailants. Thus, the fact of formation of an unlawful assembly
with weapons is amply established. 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
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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 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 the
deceased 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 the deceased to
death is hardly of any doubt. The manner of causing death 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. [Para 14][1027-A-F]
Lalji 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 several
witnesses, 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 recitation of names or omission of any name in th

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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 - Of
18 accused persons - For causing grievous injury to one person
PW1 and causing death of another - In two different incidents -
Eye-witnesses to both the incidents - High Court convicted 10
accused while acquitting 8 accused giving them benefit of doubt -
Appeal by 9 of the convicted accused persons and Revision filed by
complainant against acquitted accused persons - High Court
affirmed the order of trial court - Appeal to Supreme Court by 7 of
the convicted accused - Held: It is proved from the consistent
testimonies of eye-witnesses that the appellants-accused 1, 2, 5, 7
and 12 formed unlawful assembly with weapons and indulged in
the assault - Count of witnesses is further corroborated by recovery
of blood-stained weapons and clothes - Hence their conviction is
sustained - However, prosecution failed to prove its case beyond
reasonable 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 lathis
and tangiyas and they indulged in assault over the deceased, is
evident on the face of record with the consistent testimonies of
the eye-witnesses PW-2, PW-3, PW-4 and PW-5. Even the witness
declared hostile i.e., PW-9 has also testified to the fact of assault
by an assembly over the deceased; he even named at least two of
the assailants. Thus, the fact of formation of an unlawful assembly
with weapons is amply established. 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
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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 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 the
deceased 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 the deceased to
death is hardly of any doubt. The manner of causing death 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. [Para 14][1027-A-F]
Lalji 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 several
witnesses, 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 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
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or any other article co-related with the crime in question cannot
be ignored altogether. [Paras 15 & 15.1][1028-C; 1029-C-F]
3. Coupled with oral 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 and PW-14 have been declared hostile but nothing has
occurred in the testimony of PW-20 the Investigating Officer to
disbelieve or discard his testimony as regards such seizure
proceedings. [Para 17][1031-A-B]
4. There is substantial consistency in the account of the
incident as given out by the eye-witnesses. The fact that there
had been a large gathering that was searching for the deceased
and after finding him, 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 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 the deceased as
A-1 and A-4. There had been another fact consistently stated by
PW-2 and PW-5 that when they attempted to intervene, some of
the persons of the assembly threatened and asked them to move
away. PW-5 specifically gave out that A-1, A-12, A-4 and 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 A-6 and A-2 assaulted the deceased. [Para 19][1031-E-H;
1032-A]
5. In the aforesaid status of the testimony of the
eye-witnesses and the nature of incident, the account given by
PW-5 who had specifically named several of the accused persons,
does not appear suffering from any infirmity and 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. [Para 20][1032-B]
6. So far as the appellant A-1 is concerned, it is established
that he had been the part of assembly right from the beginning
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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 the deceased. 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 A-1. Such a fact that the deceased
was indeed dragged by legs has been stated by PW-3 and PW-4
also. The eye-witness PW-5 also stated that when the accused
persons were assaulting the deceased, he went there to intervene
but was threatened by four accused persons. 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.
Coupled with these factors, the Investigating Officer seized one
tangiya and a blood-stained lungi from A-1 (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 facts and
circumstances, it is established beyond doubt that this accused
A-1 had been the member of the assembly that attacked and
thrashed the deceased. [Para 21.1][1032-D-H]
7. As regards the appellant (A-2), again, it is established
that he was amongst the assailants who caused grievous injuries
to PW-1 in the incident that preceded the incident resulting in
demise of the deceased. Apart from PW-5 naming him as one the
members of the assembly that assaulted the deceased, even the
otherwise hostile witness PW-9 specifically stated that this
accused had been one of the persons who assaulted the deceased.
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. 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.
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In the totality of circumstances, it is established beyond doubt
that A-2 had also been the member of the assembly that attacked
and 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-5
named him as one of the accused persons assaulting the deceased.
This 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. 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. [Para 21.3][1033-E-F]
9. So far as the appellant (A-7) is concerned, though other
witnesses did not categorically state his name but the eye-witness
PW-5, 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 bloodstains. A feeble attempt was made for suggesting the plea of alibi
where DW-1 said that this accused went 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,
there is no reason to extend him the benefit of doubt and there is
no reason to interfere with the findings that he had also been the
member 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 to
endorse his conviction. Though one name has occurred in the
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re-examination of PW-5 but not specifically the name of this
accused. The prosecution has not taken any steps to clarify if
there was any discrepancy in regard to the statement of PW-5.
No other eye-witness has named this accused as one of the
members of the mob that assaulted the deceased 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 A-8 is entitled to the
benefit of doubt and the findings in his relation cannot be
sustained. [Para 21.5][1034-C-E]
11. As regards the appellant 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 that he had
clearly named this accused as 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.
In the given circumstances, the case against this appellant more
or 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 defence
that this accused was present in his village at the relevant time
and was in the field, 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 A-12 had also been the member of the assembly that assaulted
the deceased. [Para 21.6][1034-F-G; 1035-A-B]
12. As regards the appellant A-13, it is noticed that PW-5
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 nor any other act of this accused has come
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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. The alleged weapon
lathi said to have been recovered at the instance of this accused
(vide Ex. P/26) is also not shown carrying blood-stains. Though
this accused also led in defence evidence in the form of DW-3
who deposed that this accused was in other village and left his
village on 15.10.1998 at 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 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, a reasonable doubt still remains if this
accused was a part of the assembly in question. In the given
circumstances, 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 assaulted
and thrashed the deceased to death is established on record and
there appears no reason to interfere with the findings on their
conviction. However, the prosecution has failed to prove its case
beyond reasonable doubt against the appellants A-8 and A-13
and they are entitled to the benefit of doubt. On the given status
of record, the accused persons A-4 and A-6 who have not appealed
against their convictions, also form the part of the same assembly
in question that attacked and thrashed to death. Thus, the accusedappellants A-1, A-2, A-5, A-7 and 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 accusedappellants deserve to be dismissed. However, the prosecution
has failed to prove its case beyond reasonable doubt against the
accused-appellants A-8 and A-13, who deserve to be acquitted
on 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 AIR
2001 SC 4024 : [2001] 3 Suppl. SCR 658; State of
Rajasthan v. Sheeshpal AIR 2016 SC 4958 : [2016] 8
DULESHWAR & ANR. v. STATE OF M.P.
(NOW CHHATTISGARH)
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SCR 380; Lala Ram (D) through Duli Chandi v. State
of Haryana (1999) 9 SCC 525; [1999] 3 Suppl. SCR
435; Kallu v. State of Madhya Pradesh (2006) 10 SCC
313 : [2006] 1 SCR 201; Madan Singh v. State of
Rajasthan (1978) 4 SCC 435 - referred to.
Case Law Reference
[2001] 3 Suppl. SCR 658
referred to
Para 10
[2016] 8 SCR 380
referred to
Para 10
[2014] 6 SCR 420
relied on
Para 11
[1999] 3 Suppl. SCR 435
referred to
Para 11
[2006] 1 SCR 201
referred to
Para 11
(1978) 4 SCC 435
referred to
Para 11.1
[1989] 1 SCR 130
relied on
Para 11.2
[1964] 8 SCR 133
relied on
Para 15
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1813 of 2017.
From the Judgment and Order dated 12.09.2014 of the High Court
of 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, Nakul
Chaudhary, Sukumar, Faizan Ali, Advs. for the Appellants.
Nishanth Patil, Chirag Jain, Advs. for the Respondent.
The Judgment of the Court was delivered by
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
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and sentencing the accused-appellants for multiple offences, including
those 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 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,
DULESHWAR & ANR. v. STATE OF M.P. (NOW
CHHATTISGARH) [DINESH MAHESHWARI, J.]
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.
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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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 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
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the accused persons dragged the deceased by his legs while the others
kept on beating him with weapons; the deceased was dragged to a far
away 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 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
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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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-19 Dasrath
Deycate Deputy Superintendent of Police, who recorded the statements
of some of the witnesses; PW-20V.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
5 It may be noticed that PW-8, PW-9, PW-13 and PW-14 were declared hostile.
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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 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 5:00 pm, 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 in their hand. They were
assaulting Govind with lathi itself. Due to assault Govind fell
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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 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
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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 21⁄2 Km. away from
Kodebode. The barn of Tikaram is 11⁄2 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.
xxx Re-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...."
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:
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"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.
×××Cross-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
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he saw 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 far away 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"× 1" (b) 4" × 1".
2. Contusions over abdomen colour brownish blackish size
of them (a) size of two contusions 5" × 1" (b) size of two
contusions 3" × 1⁄2" transverse (c) two contusion size
3" × 1⁄2" transverse (d) one contusion size 8" × 1" vertical.
3. Contusions over medial aspect of right thing colour
blackish brownish sizes (a) 7" × 1⁄2" (b) 5" × 1⁄2" (c) 2" × 1⁄2"
(d) 2" × 1⁄2"
4. Contusions over lethal aspect, right thing, blackish brownish
colour.
5. Contusions over front of knee size 4" × 2" blackish
brownish colour.
6. Lacerated wound over base of 2nd and 3rd toe left side
1cm × 1⁄2 cm × 1⁄2 cm clotted blood ++
7. Contusion over front of knee left size 1cm × 1cm.
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8. Lacerated wound over left wrist size 1" × 1⁄2" × 1⁄2" 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" × 1" and abrasion
back of left elbow size 4 cm × 4 cm.
11. Two lacerated wound over dorsal aspect right wrist sizes
of each 1cm × 1cm × 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 × 4cm colour
pinkish brownish.
14. Lacerated wound over right side face over cheek size
3 cm × 1 cm × 1 cm.
15. Lacerated wound over right side face over cheek size
3 cm × 1 cm.
16. Contusion left side face size 3 cm × 2 cm colour blackish
brownish.
17. Lacerated wound mid portion of nose size 3 cm × 1⁄2 cm ×
1⁄2 cm. Fracture of nasal bone.
18.