Duleshwar & Anr. vs The State of M.P. (Now Chhattisgarh)

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 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 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 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. 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 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 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 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.