^-Y """""I y,. ^^/" HIGH CQURT OF CHHATTISGARH AT BILASPUR i i i D.B.: Hon'ble Shri Justice Sunil KumarSinha and Hon'ble Shri Justice Radhe Shvam Sharma Appellant Respondent Criminal ADpealNo.475 of 2008 versus Ghanshyam Verma, S/o Jeevanlal Verma, aged about 22 years, R/o Village Akhra Patan, P.S. Patan District Durg (CG) State of Chhattisgarh, Through P.S. Patan, District Durg (CG) Appellant Criminal Appeal No.476 of 2008 Ishwari Banwasi, S/o Goukaran Banwasi, aged about 21 years, R/o Bhatapara Akhara, P.S. Patan, District Durg (CG) Respondent versus State of Chhattisgarh, Through P.S. Patan, District Durg (CG) Criminal Appeal No.479 of 2008 Appellants 1. Raju @ Ramesh Kumar, S/o Ramnarayan, aged about 23 years, R/o Kandrapara Akhra, Patan, P.S. Patan, Distt. Durg (CG) 2. Parmeshwar Kumar, S/o Chandrika Prasad, aged about 20 years, R/o Kandrapara Akhra, Patan, P.S. Patan, Distt. Durg (CG) 3. Amit Kumar Markam, S/o Daulal Markam, aged about 19years, R/o Akhra, Patan, P.S. Patan, Distt. Durg (CG) 4. Kishan Markam, S/o Late Ramlal, aged about 22 years, R/o Bhatapara, Akhra Ward No.3, Patan, P.S. Patan, Distt. Durg (CG) ^ 'l ^^ ^ .^ Respondent versus State of Chhattisgarh, Through P.S. Patan, District Durg (CG) Criminal Appeal No.547 of 2008 Appellant Respondent versus Hemant Kumar, S/o Khemlal Dhimar, aged about 20 years, R/o Bharar Chowk, Patan, District Durg (CG) i State of Chhattisgarh, Throug^i P.S. Patan, District Durg (CG) ^ Criminal Appeal No.578oi^2008 Appellants ^^SK:-'^^-?ffc^^^ Respondent 2. versus Shankarlal Chhedaiya, S/o Rajkumar Chhedaiya, aged about 22 years, R/o Kandarapara, Patan, P.S. Patan, Distt. Durg (CG) Shatrughan Lal Dhimar, S/o Punatram Dhimar, aged about 19 years, R/o Akhara Patan, P.S. Patan, Distt. Durg (CG) State of Chhattisgarh, Throifgh Police Station Patan, District Durg (CG) Criminal Appeal No.709 of 2008 Appellant Respondent versus Durgesh Tiwari, S/o Late Shankar Prasad Tiwari, aged about 19years, R/o Ward No.3, Akhra Patan, P.S. Patan, Distt. Durg (CG) State of Chhattisgarh, Through P.S. Patan, District Durg (CG) ^A. ^ Present: Smt. Kiran Jain, counsel for appellant Ghanshyam Verma in Cr.A. No.475/2008. Shri H.S. Ahluwalia, counsel for appellant Ishwari Banwasi in Cr.A. No.476/2008. Smt. Fouzia Mirza, counsel for appellants Raju alias Ramesh Kumar, Parmeshwar Kumar, Amit Kumar Markam and Kishan Markam in Cr.A. No.479/2008 and appellant Durgesh Tiwari in Cr.A.No.709/2008. Shri Yashwant Tiwari and Shri Amiyakant Tiwari, counsel for appellants Shankartal Chhedaiya and Shatrughan Lal Dhimar in Cr.A. No.578/2008. None for appellant Hemant Kumar in Cr.A.No.547/2008. Shri Ashish Shukla, Government Advocate and Shri Ravindra Agrawal, Panel Lawyerforthe State/respondent. Criminal Appeals under Section 374(2) of the Code of Criminal Procedure ^SS'SSS^£Sa vvvwww JUDGMENT (Delivered on 11'" October, 2011) Per Radhe Shvam Sharma, J-: These appeals have been directed against judgment and order dated 11th April, 2008 passed by the Session Judge, Durg in Session Trial No.266/2006, whereby the appellants have been convicted and sentenced in the following manner with a further direction to run the sentences concurrently: Conviction Sentence UnderSection 147oflPC R.l. for 1 year UnderSection148IPC R.I.for11/^years Under Section 302/149 IPC Imprisonment for life with fine of Rs.1,000/-, in default, to further undergo R.l. for 1 month Under Section 323/149 IPC regarding injured Sunil Kumar Verma R.l. for 1 year with fine of Rs.500/-, in default, to further undergoR.l.for15days Under Section 324 IPC regarding R.l. for 2 years with fine_af_ li^"'"'^ ^.^ -w-^^ injured Devendra Kumar Sapaha Under Section 323 IPC regarding injured Devendra Verma Under Section 324 IPC regarding Kuldeep Nirmal Under Section 307 IPC regarding injured Lukesh Kumar Verma Appellants Ishwari Banvasi and Shankerlal Chhedaiya under Section 25 of the Arms Act Appellants Ishwari Banvasi and Shankerlal Chhedaiya under Section 27 of the Arms Act Rs.500/- in default, to further undergoR.I. for 15 days R.l. for 1 year with fine of Rs.500/-, in default, to further undergo R.l. for 15 days R.l. for 2 years with fine of Rs.500/-, in default, to further undergo R.l. for 15 days R.l. for 4 years with fine of Rs.2,000/-, in default, to further undergo R.l. for 1 month R.l. for 1 year with fine 'b^ Rs.500/-, in default, to further undergo R.l; for 15 days R.l. for 3 years with fine of Rs.500/-, in default, to further undergo R.l. for 15 days 2. Case of the prosecution, in brief, is as under: On the fateful day, i.e., 15-8-2006, at about 8.00 p.m., the accused persons/appellants were standing in front of Shourya Restaurant situated at Bharar Chowk, Patan. They were abusing and using filthy language and saying that Panderwale had quarreled, they all be assaulted, whosoever is found, be killed. Lukesh Kumar Verma (PW-13), Narendra Verma alias Pappu (the deceased), Sunil Kumar Verma (PW-22), Devendra Verma (PW-3), Kuldeep Nirmal (PW-2) and Devendra Kumar Sapaha (PW-19), who were sitting inside the restaurant, came out of it and asked the appellants as to why they were abusing, on which, the appellants said unanimously in filthy language that all Panderwale should be killed. Saying this, appellants Ishwari Banwasi and Shankarlal Chhedaiya with knife, appellant Durgesh Tiwari with rod and rest of the appellants with Danda, started assaulting them. Lukesh Kumar Verma (PW-13) £.:"""%' "'^ \ •l^ ^•-y sustained injury on his left rib, deceased Narendra Verma below the left rib in the back, Sunil Kumar Verma (PW-22) on the palm of his left hand, Devendra Verma (PW-3) in finger of his left hand, Kuldeep Nirmal (PW-2) on his head and back and Devendra Kumar Sapaha (PW-19) on the elbow of his right hand. Blood oozed out of their injuries. Rajesh Verma (PW-14), Sunil Kumar Sen (PW-12), Santosh Verma (PW-23) and Radheshyam Yadav (PW-25) took the injured persons tQ the hospital. Upendra Verma (PW-1) lodged First Information Report (Ex.P-1). Deceased Narendra Verma succumbed to the injuries in Sector-9 Hospital, Bhilai. R.K.Shrivastava (PW-24) sent information regarding death of Narendra Verma vide Ex.P-40. Merg lntimation(Ex.P-41) was recorded in Police Station Bhilai Nagar on 0/2006. Regular Merg lntimation(Ex.P-29) was recorded in Police Station Patan. The Investigation Officer reached Sector-9 Hospital, Bhilai, gave notice (Ex. P-35) to Panchas and prepared inquest (Ex. P-36). Dead body of the deceased was sent for post mortem examination to District Hospital, Durg vide Ex.P-37. The post mortem was conducted by Dr. A.K.Soni (PW-28), who gave his report Ex.P-44 and found (i) stab wound, 2cmsx1cmx3cms on the left side of the chest, 3cms lateral from the left nipple, (ii) penetrating wound, 2^ cmsxlcmxdeep in abdominal cavity on left side ofthe chest between 9th and 10th ribs, (iii) stab wound, 1cmx1/icmx2cms, on left side ofthe back, (iv) incised wound, 1cmx1/2cmxbone deep, below the left eye. He opined that the cause of death was shock due to excessive haemorrhage as a result of penetrating injury of the spleen. Injury No.(ii) was grievous in nature and sufficient to cause death. 1 tW-^- Tahsildar/Executive Magistrate Pulak Bhattacharya (PW-8) recorded dying declaration of Kuldeep Nirmal (PW-2) vlde Ex.P-4 and another dying declaration of Lukesh Kumar Verma (PW-13) vide Ex.P-28. Head Constable Ram Sunder Tripathi (PW-30) prepared site-plan vide Ex. P-2 and Patwari Lalaram Sinha (PW-6), after inspection of the place of occurrence, also prepared site-plan vide Ex.P-3. In further investigation, disclosure statement (Ex.P-6) of <.-- appellant Ishwari Banwasi was recorded under Section 27 of ths Evidence Act and at his instance, a Knife was seized vide Ex. P-7. Disclosure statement (Ex. P-8) of Shankarlal Chhedaiya was also recorded and at his instance, a Katah was seized vide Ex.P-9. An iron rod was seized from appellant Durgesh Tiwari vide Ex.P-10. Another iron rod was seized from appellant Raju alias Ramesh Kumar vide Ex. P-11. A Latfii (a piece of Bamboo) was seized from appellant Parmeshwar vide Ex.P-12 and another Lathi (a piece of ^ Bamboo} was seized from appellant Amit Kumar vide Ex.P-^13. Deceased Narendra Vermaand injured Kuldeep Nirmal (PW-2), Devendra Verma (PW-3),Lukesh KumarVerma (PW-13), Devendra Sapaha (PW-19) and Sunil Kumar Verma (PW-22) were sent for medical examination. The deceased and the injured persons were examined by Dr. S.K.Sahu (PW-7). He gave his report Ex.P-14 to P-19 and he also gave his query report vide Ex.P-22 to P-26A. Seized articles were sent for chemical examination to Director, State Forensic Science Laboratory, Raipur. He gave his report vide Ex.P- 45. Report of Serological is also received vide Ex.P-58. After completion of the investigation, charge-sheet was filed against the appellants in the Court of Judicial Magistrate First Class, / Durg, who, in turn, committed the case to the Court of Session Judge, Durg, who conducted the trial and convicted and sentenced the appellants as mentioned above. 3. The learned Session Judge framed charges under Section 147,148,294, 323 read with Section 149 IPC, Section 324 read with Section 149 IPC, 307 read with Section 149 IPC and 302 read with Section 149 IPC against the appellants. In addition, charges under Sections 25 and 27 of the Arms Act were also framed against appellarits Ishwari Banwasi and Shankarlal Chhedaiya. The appellants abjured the guilt. 4. In its support, the prosecution examined Upendra Verma (PW- 1), who lodged the FIR (Ex.P-1), Kuldeep Nirmal (PW-2) (injured eye-witness), Devendra Verma (PW-3) (injured eye-witness), Domendra Verma (PW-4) (witness of memorandum and seizure), Pankaj Patel (PW-5) (witness of memorandum and seizure), Patwari Lala Ram Sinha (PW-6), Dr. S.K.Sahu (PW-7), who examined injured witnesses, Tahsildar/Executive Magistrate Pulak Bhattacharya (PW-8), who recorded dying declaration of Kuldeep Nirmal (PW-2) vide Ex.P-4 and another dying declaration of Lukesh Kumar Verma (PW-13) vide Ex.P-28, Head Constable Someshwar Nath Yogi (PW-9), Constable Uttam Soni (PW-10), Dr. Praveen Kumar (PW-11), Sunil Kumar Sen (PW-12) (eye-witness), Lukesh Kumar Verma (PW-13) (injured witness), Rajesh Verma (PW-14), Constable Hemlaj (PW-15), Sanju Verma (PW-16) (eye-witness), Dr. R.P.Singh (PW-17), who examined Kuldeep Nirmal (PW-2), Dr. / Rajeev Pal (PW-18), who also examined Kuldeep Nirmal (PW-2), Devendra Kumar Sapaha (PW-19) (injured witness), Ramesh Verma (PW-20) (eye-witness), Constable Biharilal (PW-21), Sunil Kumar Verma (PW-22) (eye-witness), Santosh Verma (PW-23) (eye- witness), R.K.Shrivastava (PW-24), Radheshyam Yadav (PW-25), Smt. Nilima Tirkey (PW-26), Inspector Prakash Soni (PW-27), Dr. A.K.Soni (PW-28), who conducted post mortem examination of the deceased, Assistant Sub-lnspector K.C.Das (PW-29), who prepatesd inquest, Assistant Sub-lnspector Ram Sunder Tripathi (PW-30) (Investigating Officer). In their defence, the appellants examined Ishwar Kumar Sinha (DW-1) and Sarju Markam (DW-2). 5. After appreciation of evidence, the learned Sessi'on Judge, relying the evidence of eye-witnesses and injured witnesses, convicted and sentenced the appellants as mentioned above. 6. Shri Yashwant Tiwari, learned counsel fpr appetlahts Shankarlal Chhedaiya and Shatrughan Lal Dhimar argued that the formation of an unlawful assembly and the appellants being the members of the unlawful assembly were not established. It was also not established as to what was the common object of unlawful assembly. He further argued that the prosecution witnesses did not state anything against appellant Shatrughan Lal Dhimar. So far as appellant Shankarlal Chhedaiya is concerned, deceased Narendra Verma sustained one stab, one penetrating injury and two incised injuries. According to Dr. A.K.Soni (PW-28), injuries No.(i), (iii) and (iv) were simple injuries. He argued that the common object of the •t'"--^ ^^sy unlawful assembly was not to commit murder of deceased Narendra Verma or ^to assault the injured persons and someone on his own committed the above act; that wouldbe an act committed on the part of the individual. Therefore, the learned Session Judge erred in law in convicting the appellants under the aforementioned sections of the IPC. He further argued that the prosecution utterly failed to prove the case beyond reasonable doubt against appellant Shatrughan Lal Dhimar. So far as appellant Shankarlal Chhedaiya is concerned, he would not be punishable under Section 302 IPC and even after admitting the entire case, he would be liable for punishment under Section 304 IPC. 7. Shri H.SAhluwalia, learned counsel for appellant Ishwari Banwasi adopted the arguments advanced by Shri Yashwant Tiwari, learned counsel for appellants Shankarlal Chhedaiya and Shatrughanlal Dhimar. 8. Smt. Fouzia Mirza, learned counsel for appetlants Durgesh Tiwari, Raju alias Ramesh Kumar, Parmeshwar Kumar, Amit Kumar Markam and Kishan Markam argued that the prosecution witnesses did not state anything against appellants Parmeshwar Kumar, Amit Kumar Markam and Kishan Markam. Requisition (Ex.P-37) for post mortem of the deceased does not contain names of appellants Parmeshwar Kumar, Amit Kumar Markam and Kishan Markam. She further argued that the deceased sustained stab, penetrating and - incised wounds. According to the prosecution witnesses, appellants Durgesh Tiwari and Raju alias Ramesh Kumar assaulted the [fe^] ^sy 10 deceased with iron rods. No contusion or Jacerated wound was found on the body of the deceased. There was absolutely no evidence to show that who caused the murder of the deceased. Therefore, the learned Session Judge erred in law in convicting appellants Durgesh Tiwari, Raju alias Ramesh Kumar, Parmeshwar Kumar, Amit Kumar Markam and Kishan Markam under Sections 147,148,323,324, 307 and 302 with the help of Section 149 IPC. <L 9. Smt. Kiran Jain, learned counsel for appellant Ghanshyam Verma argued that the prosecution utterly failed to prove the guilt against appellant Ghanshyam Verma beyond reasonable doubt. 10. Learned counsel for the appellants also argued that all the eye-witnesses referred to above are wholly unreliable and the conviction based on the testimonies of these witnesses cannot be sustained. s' 11. On the contrary, Shri Ashish Shukla, learned Government Advocate for the State/respondent opposed the arguments and supported the impugned judgment. He placed reliance on Dharnidhar vs. State of Uttar Pradesh and others, (2010) 7 SCC 759. 12. We have heard learned counsel for the parties at length and have perused the record of the session case. 13. Firstly, we shall consider whether there was an unlawful assembly and the appellants were members of the said assembly? If so, what was the common object of that assembly? '^:. '^'.';.:^',,? 11 14. Section 149 IPC contemplates common object and Section 141 IPC defines an unlawful assembly. Section 141 IPC provides that an assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is one or moreof the 5 objects mentioned in Section 141. it further provides by an Explanation that an assembly which was not untawful when it assembled, may subsequently become an unlawful assembly. This makes very clear that an assembly of not less than 5 persons having an unlawful common object which must be of the nature of one of the 5 objects specified in Section 141 would primarily constitute an untawful assemblyand an assembly which was not unlawful when it assembled may also subsequently become an unlawful assembly for the purpose of Section 149 IPC which provides that every member of the unlawful assembly would be guilty of offence committed in prosecution of common object. The words figured as "common object" in Sections 149 and 141 IPC have great significance. It has to be understood in contradistinction with common intention. Therefore, with a view to look into the implications of Section 149 IPC, mere presence of a person in an unlawful assembly would do nothing unlessthere was a common object, he was actuated by that common object and that object was one or more than one of those provided in Section 141. Therefore, unless a common object of an unlawful assembly is proved, one cannot be convicted with the aid of Section 149 and the common object of an unlawful assembly may be more than one. To ascertain that a person has shared the alleged common object of the unlawful 12 assembly, it shall have to be determined that he was well aware that the assembly, bf which, he was one of the members,was to commit or likely to commit the act or the acts provided in Section 14.1, The common object may be formed at any stage. A common object formed at a particular stage may be left and a different object may be formed later. One has to determine all this in the given facts and circumstances of each case, and then, the provisions of Section 149 has to be applied for convicting every member of the unlawfu'i^ assembly, that is what the legislature intended by engrafting the words like "in prosecution of common object" in Section 149 IPC. Equally, in the facts and circumstances of each case, where there were sequence of acts committed, one has to determine on evidence that whether the common object of the unlawful assembly existed only upto commission of the first act and thereafter whether the assembly was disbursed or any member of the unlawful assembly or disbursed assembly committed the subsequent act and if rt be so whether it would be his own act or it shall be held to be an act committed in furtherance of the common object of the assembly which was unlawful at a particular time. It if is found on evidence that the common object of an unlawful assembly was only to commit a particular act which was committed in the first instance and thereafter any member of the initial unlawful assembly commits a subsequent act which was not in furtherance ofthe common object, it would certajnly be an individual act and not that of assembly and in such a case, no liability can be fastened with the aid of Section 149 IPC. .—, ^ ^s.^ - '^ < 13 15. Upendra Verma (PW-1), Kuldeep Nirmal (PW-2), Devendra Verma (PW-3), Sunil Kumar Sen (PW-12), Lukesh Kumar Verma (PW-13) and Devendra Kumar Sapaha (PW-19) deposed that on 15th August, 2006, at about 8 P.M., the appellants were standing in front of Shourya Restaurant and abusing in filthy language. On hearing this, Narendra Verma (the deceased), 'Lukesh Kumar Verma (PW-13), Sunil Verma (PW-16), Devendra Verma (PW-3), Kuldip Nirmal (PW-2) and Devenera Sapha (PW-19), who were sitting inside the restaurant, came out of it and asked the accused persons as to why they were abusing, on which, appellant Ishwari, who was armed with a Knife, appellant Shankarlal Chhedaiya, who was armed with a Katari, appellants Durgesh Tiwari and Raju alias Ramesh Kumar, who were armed with iron rods, started assaulting the deceased. When Kuldeep Nirmal (PW-2), Lukesh Kumar Verma (PW-13), Devendra Verma (PW-3) and Devendra Sapaha (PW-19) tried to intervene, the appellants started assaulting these witnesses. Appellant Shankarlal Chhedaiya assaulted the deceased with the Katah and appellant Ishwari Banwasi assaulted the deceased with the Knife. Appellant Ishwari Banwasi assaulted Lukesh Kumar Verma (PW-13) with the Knife, due to which, his intestines had come out ofthe abdomen. Appellants Durgesh Tiwari, Raju alias Ramesh Kumar also assaulted Kuldeep Nirmal (PW-2), Devendra Verma (PW-3) and Devendra Sapaha (PW-19). Other appellants also assaulted the deceased and injured witnesses with Lathi. 16. Sunil Kumar Sen (PW-12), Rajesh Verma (PW-14), Sanju Verma (PW-16), Ramesh Verma (PW-20), Sunil KumarVerma (PW- y">. /' ti -^"^" ^^' 14 22),Santosh Verma (PW-23) and Radheshyam Yadav (PW-25) also deposed that appellants Shankarlal Chhedaiya and Ishwari Banwasi assaulted the deceased with sharp edged weapons and they also assaulted Lukesh Kumar Verma (PW-13) with the same weapons. Appellants Raju alias Ramesh Kumar and Durgesh Tiwari assaulted the deceased and the injured witnesses with iron rods and the other appellants assaulted the deceased and the injured witness with the Lathi. 17. The above eye-witnesses and injured witnesses specifically deposed that deceased Narendra Verma alias Pappu sustained injury in left side of the chest and Lukesh Kumar Verma (PW-13) sustained injury on his ribs and his intestines had come out of the abdomen. They further stated that the deceased, Kuldeep Nirmal (PW-2) and Lukesh Kumar Verma (PW-13) were sent to Sector-9 Hospital, Bhilai for treatment, where deceased Narendra Verma alias Pappu was declared to be dead. 18. In Brahm Swaroop and another vs. State of U.P., AIR 2011 SC 280, the Hon'ble Supreme Court held that where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes within a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in . order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness. ^^J'^-^' A..- 7 15 19. In the instant case, Kuldeep Nirmal (PW-2), Devendra Verma (PW-3), Lukesh KumarVerma (PW-13), Devendra Sapaha (PW-19) and Sunil Kumar Verma (PW-22) were injured in same incident, therefore, their presence at the place of occurrence cannot be doubted. Therefore, their testimonies cannot be doubted and due to some exaggerations andcontradictions, their testimonies cannot be discarded in toto. 20. Dr. S.K.Sahu (PW-7) examined Kuldeep Nirmal (PW-2), Devendra Verma (PW-3), Lukesh Kumar Verma (PW-13) and Devendra Sapaha (PW-19) and gave his report Ex.P-14 to P-19. The evidence of above injured witnesses are duly corroborated by medical evidence. 21. Tahsildar/Executive Magistrate Pulak Bhattacharya (PW-8) deposed that he recorded statements of Kuldeep Nirmal (PW-2) vide Ex.P-4 and Lukesh Kumar Verma (PW-13) vide Ex.P-28 as dying declaration. However, since they survived, their statements cannot be treated as dying declaration, but have to be treated as superior quality/high degree statementsthan.that of statements recorded under Section 161 Cr.P.C. and at best are to be treated only as statements recorded under Section 164 Cr.P.C. and can be used for corroboration or contradiction. 22. Now, we shall see whether on the basis of the evidence of the above witnesses, it can be established that the appellants formed an unlawful assembly or they were members ofthesaid assembly. £1\ ^:^^^' F ¥^ 16 23. The FIR (Ex.P-1) was lodged by Upendra Verma (PW-1). He deposed that when he lodged the FIR (Ex.P-1), at that time; police had broughtfour persons to the police station. Those four persons disclosed the names of other persons. He deposed that he had witnessed six persons at the place of occurrence. He had not stated about accused Kishan having a Danda in his hand. He was not aware of name of accused Kishan. Kuldeep Nirmal (PW-2) deposed that accused Ishwari Banwasi was having a Knife, accused^ Shankarlal Chhedaiya was having a sharp edged weapon and accused Raju alias Ramesh Kumar was having an iron rod. Kuldeep Nirmal (PW-2) did not state anything about other accused/appellants. 24. Devendra Verma (PW-3) deposed that all the appellants were having Lathi, rod and knife, but he did not state specifically that which appellant had which weapon. He further deposed that he dld .^ not know the assailants by their names. He also deposed that tiie police had got the assailants identified in police station. Sunil Kumar Sen (PW-12) deposed that he did not see that which appellant assaulted to which person and he also did not see the manner of assault. He further deposed that he was not aware of the assailants by their names even on the date of deposition before the Court. 25. Rajesh Verma (PW-14) deposed that appellants Ishwari Banwasi and Shankarlal Chhedaiya assaulted the deceased with sharp edged weapons. He further deposed that appellant Ishwari Banwasi assaulted Lukesh Kumar Verma (PW-13) with a sharp ^3% I ^-^../ 17 edged weapon and appellants Raju Kadra and Durgesh Tiwari assaulted Lukesh Kumar Verma (PW-13) with rod. This witness did not state specifically that which appetlant assaulted which person. 26. Tahsildar/Executive Magistrate Pulalk Bhattacharya (PW-8) deposed that he recorded the statement of Kuldeep Nirmal (PW-2) vide Ex. P-4 and that of Lukesh Kumar Verma (PW-13) vide Ex.P-28 as their dying declarations. He further deposed that Kuldeep Nirmal (PW-2) and Lukesh Kumar Verma (PW-13) did not state names of assailants. Kuldeep Nirmal (PW-2) denied in his deposition about recording ofhis statement vide Ex.P-4. Lukesh Kumar Verma (PW- 13) deposed that his dying declaration was recorded by Tahsildar and he also admitted his signatures on Ex.P-28. He deposed that he had disclosed the names of only three assailants. Ex.P-4 does not contain name of any assailant. 27. Dr. S.K.Sahu (PW-7) deposed that Ex.P-14 to P-19 does not contain names of appellants Kishan Markam and Ghanshyam Verma. He deposed that injured Devendra Sapaha (PW-19), Sunil Kumar Verma (PW-22), deceased Narendra Verma, Devendra Verma (PW-3), Kuldeep Nirmal (PW-2), Lukesh Kumar Verma (PW- 13) did not disclose him names ofthe persons assaulted them. 28. Head Constable Someshwar Nath Yogi (PW-9), who had