---1--- HIGH COURT OF MADHYA PRADESH BENCH : INDORE (Division Bench: P.K. Jaiswal & Mrs S.R. Waghmare, JJ.) Criminal Appeal No.1124/2001 Girdhan S/o Bheemsingh Barela Naharsingh S/o Dhoola Barela Madhoo S/o Amirsingh Barela Barkat S/o Mangaliya Roomsingh @ Roopsingh S/o Malji V/s State of Madhya Pradesh ***************************************************************** Shri R.K. Trivedi, Advocate for the appellant. Shri R.S. Chauhan, Govt. Advocate for the respondent. ***************************************************************** JUDGMENT (14.11.2011) Per P.K. Jaiswal, J. This appeal has been preferred against the judgment & order of conviction dated 30.8.2001, passed by 2nd Additional Sessions Judge, Khargone (West Nimar) in Sessions Trial No.40/98, by which the trial Court has convicted the appellants under Sections 148, 302/149 & 332/149 of the Indian Penal Code, 1860 (herein after called 'IPC') and awarded them life imprisonment along with other punishments. 2. Brief facts of the case are that in district Khargone of West Nimar two organizations, namely Aadiwasi Mukti Sangthan and Shanti Sena were very active in the year 1997. Both the groups were having inimical relations with each other. In the month of August, 1997 one Jhagdiya Patel (resident of Kabri), the then Block Congress President, who had formed Shanti Sena organization and his one friend Jirbhan Patel (resident of Kaniyapani) were murdered by the member of Aadivasi Mukti Sangthan. Police Station Bhagwanpura and Police Station Barud registered Crime No.197/97 under Section ---2--- 302, 147, 148 & 149 of IPC, Crime No.141/97 under Sections 302, 307, 147, 148 & 149 and Crime No.156/97 under Sections 195 of IPC and arrested Kaliya, Kabriya, Terram and Bobra. They were taken on police remand by Police Station Bhagwanpura and Police Station Barod from Judicial Magistrate First Class, Khargone for the period 15.9.97 to 17.9.97. Kaliya @ Kalu, son of Bhagya Barela, who was on police remand and for recovery of gun and looted property the police personnels of above police stations were taken him to Julwaniya. Police party was headed by the then SDO(P), Khargone R.S. Dehriya (PW15), Vinod Singh Kushwah, SHO Bhagwanpura (PW14), B.P.S. Bhadoriya, SHO Barud (PW21), Ram Murthi Awasthi, Assistant Sub Inspector Police Station Bhagwanpura (PW9), Constable M.P. Verma (PW27), Constable Motilal (PW7), Constable Noorsingh More (PW18) and Mangilal, N.C.O. Home Guard (PW1) were members of the police party. Five members of Special Armed Force (SAF) 12th Battalion viz. Assistant Platoon Commander A.P. Singh Chandradeo (PW12), Constable No.261 Surendra Tripathi (PW10), Constable No.173 Ghanshyam (PW11), Constable No.12 Manakram and Constable No.457 Ramadhar were also escorting them. 3. Police party went to Julwaniya in the Jeep of SDO(P) Khargone, bearing registration No. MP-03/489 and Mahendra Jeep No. MP-02/2948 belongs to Unified Child Development Project, Shegaon. Kailsah Patidar (PW17) was driving the said Mahendra Jeep. On the basis of memo of accused Kaliya Barela one single barrel gun was seized by the police at village Julwaniya and, thereafter, the police force along with accused Kaliya were returning from village Julwaniya; Mahendra Jeep No. MP-02/2948, in which remanded accused Kaliya Barela ---3--- was sitting, was first in the row. Vinod Singh Kushwah (PW14), BPS Bhadoriya (PW21), A.P Singh Chandradeo (PW12) and some police constables were also sitting in the said Jeep. Jeep No. MP-03/489 was 2nd on the road and in the said Jeep SDO(P) R.S. Dehriya (PW15) was sitting. At the relevant point of time i.e., on 17.9.97 at about 2.30 PM when they reached near 'Kabri Phata' the road was blocked by stones and, therefore, they stopped the vehicle to remove the blockade. This road is surrounded by agricultural field of corn and millet, in which 400-500 members of Shanti Sena were hidden. They were armed with gun, arrow & bow, Faliya, Lathi, Axe and spear and came out of the agricultural field and started inflicting injuries to the police party. They were demanding to handover accused Kaliya Barela to them, to take revenge of the murder of Jhagdiya Patel and Jirbhan Patel. Police party warned them not to take law in their hands, but in spite of that they did not stop and started coming closer to the police party and inflicting injuries to the police party. 4. As per prosecution story, Girdhan (A1) was armed with gun, Naharsingh (A2) was armed with spear, Madhoo (A3) was armed with arrow & bow, Barkat (A4) was armed with Axe and Roomsingh @ Roopsingh (A5) was armed with arrow & bow. Other co-accused persons were also armed with arrow & bow and other deadly weapons. Roomsingh (A5) caused arrow injury to Vinod Singh Kushwah (PW14) on his left thigh. In turn, to control the mob PW14 and PW21 started air firing from their service revolvers. In spite of that mob started coming closure to them. Suddenly, remanded accused Kaliya Barela, sitting in Mahendra Jeep No. MP-02/ 2948, came out of the said Jeep and tried to run away from that place, but he was surrounded by the mob and the mob started inflicting injuries on him. ---4--- Madhoo (A3) and Naharsingh (A2) have caused arrow and spear injuries to Kaliya Barela. To control the mob other members of the police party also started firing from their service revolvers, 303 gun and A.K. 47 revolver and total 45 rounds of firing was made by them. Roopsingh (A5) was injured by the police firing and he fell down there. After police firing the mob ran away from the spot. In the said incident Vinod Singh Kushwah (PW14), B.P.S. Bhadoriya (PW21), R.S. Dehriya (PW15), A.P. Singh Chandradeo (PW12), Ram Murthi Awasthi (PW9), driver Kailash Patidar (PW17), Constables Surendra Tripathi (PW10), Ghanshyam (PW11), Motilal (PW7), Noorsingh (PW18) and Mangilal (PW1), N.C.O. Home Guard were injured. 5. When police party took all the injured persons and injured accused Roopsingh (A5) in a Jeep for their treatment and was going to start the Jeep for Bhagwanpura, at that relevant point of time Girdhari (A1) and other five accused persons tried to stop the police Jeep. They were arrested with weapons on the spot itself. The police party took them to Bhagwanpura. Remanded accused Kaliya Barela was examined at Primary Health Center, Bhagwanpura by Assistant Surgeon Dr. R. Suliya (PW13) on 17.9.97 itself and during clinical test he was declared dead. The injured police personnels were also medically examined. For further treatment A5 was sent to District Hospital, Khargone where he was treated till 4.2.98. The FIR was lodged by Vinod Singh Kushwah (PW14), the then SHO Bhagwanpura vide Ex.P/37. A1 was arrested on 17.9.97 by Assistant Sub Inspector Ram Swaroop Shakya (PW26). One 12 bore single barrel gun and four live cartridges were seized from him. Inquest report of deceased Kaliya Barela was prepared by SDO(P) Khargone, R.S. Dehriya (PW15). 6. Postmortem of deceased Kaliya Barela was conducted on ---5--- 18.9.97 at 10 AM by the team of doctors of PHC Bhagwanpura, headed by Dr. T.H. Malik (PW20). Ex.P/65 is the postmortem report of deceased Kaliya Barela, according to which he sustained the following injuries: (1)Contused incised wound near Rt side face reaching up to occipital region inserting skull bone – size 20 cm x 18 cm. (2)Incised wound on scalp occipital region – 7 cm x 5 cm x bone deep. (3)Incised penetrating wound in left region clavicle region – size 8 cm x 6 cm involving whole of (4)Incised wound below left nipple – size 2cm x 1 cm. (5)Incised wound middle of sternum 1 cm x 1 cm. (6)Incised wounds in between 6th, 7th, 9th & 11th ribs – size 1 cm x 1 cm. (7)Incised wound over inguinal ligament size 2 cm x 1 cm. (8)Incised wound upper 1/3rd left lower leg 1cm x 1 cm. (9)Incised wound dorsal of left hand at base of index finger - size 1 cm x 1 cm. (10)Incised wound with arrow inserted at right scapular region 1½ cm x 1½ cm. (11)Incised penetrating wound with arrow inserted, lumbosacral joint medi-scapula region - size 1 cm x 1cm. (12)Incised penetrating wound at left L.C. Joint - size 1 cm x 1 cm (13)Incised wound on right gluteal region 2 cm x 2 cm. (14)Incised wound right line region – size 2 cm x 1 cm. (15)Incised wound right lineal area 2 cm x 1cm. (16)Incised wound at left 4th cervical region 2 cm x 1 cm. (17)Incised wound at left gluteal region 1cm x 1 cm. (18)Incised wound on right leg middle 3rd – 2 cm x 1 cm. 7. One spear, arrow head and needle arrow was recovered from the dead body of the deceased. As per opinion of PW20 Dr. T.H. Malik the mode of death is syncope because of the injury to vital organs (brain and left thigh). The death was homicidal in nature and within 24 hours from the date of postmortem. As per Ex. P/66, reply to query of Police Station Bhagwanpura by PW20 all the injuries were incised wounds, caused by sharp edged weapon and none of the injury was caused by hard and blunt object or by fire arm. PW26 Ram ---6--- swroop Shakya, Assistant Sub Inspector prepared the spot map (Ex.P/18), seized blood stained and controlled earth and 7 arrows and total 26 accused persons were arrested. 8. The investigation proceeded, during which a number of persons were apprehended and after completion of the investigation a charge sheet was filed against 24 persons on 29.1.98. On 16.3.98 supplementary charge sheet was filed against A5 and accused Shanbhu @ Chhabbu. Thus, 26 accused persons were put to trial. The Judicial Magistrate First Class registered two Criminal Cases bearing No. 502/97 and 5/98 and committed to the Court of Sessions. After committal the case was transferred to 3rd Additional Sessions Judge, Khargone. Then, due to transfer of 3rd Addl. Sessions Judge the case was again transferred to the Court of 2nd Addl. Sessions Judge, Khargone. The trial Court framed the charges under Sections 148, 302/149, 307/149, 323/149 & 332/149 of IPC. 9. The accused persons abjured their guilt and pleaded that they have been falsely implicated in the alleged offence. A1, A3 and 7 other co-accused in their statements under Section 313 Cr.P.C. have deposed that on the date of occurrence they had gone to Dhulkot for weekly market and in Dhulkot they came to know about the said incident and, therefore, they rushed to Bhagwanpura Hospital and when they reached near Bhagwanpura Hospital they were not permitted to see the injured persons and were arrested by the police people. 10. The prosecution has examined as many as 26 witnesses. In defence 6 witnesses were examined before the trial Court. The trial Court vide impugned judgment and order acquitted 21 accused persons. A1 was acquitted under Section 25/27 of the Arms Act, 1959. A1 to A5 were also acquitted under Section 307/149 of IPC (to commit attempt to murder of PW14 Vinod ---7--- Singh Kushwah). 11. Shri R.K. Trivedi, learned counsel appearing for the appellants, has submitted that the appellants have been falsely implicated in the alleged offence, whereas deceased Kaliya Barela was murdered in police custody. It is also submitted that the allegation against the A1 that he was carrying a gun at the time of incident, but no gun shot injury was found on the body of the deceased and he has falsely been engaged in the alleged offence. It is further submitted that there was no intention on the part of the appellants to cause death of deceased Kaliya Barela, otherwise they could have immediately eliminated the deceased. According to the prosecution some of the accused persons were armed with deadly weapons like gun, spear, Axe and stick and other co-accused persons were armed with arrow & bow. It is also submitted that 21 accused persons, who were armed with arrow & bow have been acquitted by the trial Court and, thus, conviction of A1 to A5 cannot be maintained under Section 302 of IPC even with the aid of Section 148 & 149 of IPC. The prosecution case is to be discarded as a whole, but the learned trial Court committed an error in believing the prosecution story in respect of A1 to A5 and convicted them for the above alleged offences. 12. On the contrary, learned Government Advocate has vehemently opposed the appeal contending that the appellants had caused injuries to Kaliya Barela which were sufficient to cause his death. It is also submitted that the injured witnesses in their evidence have very categorically made an allegation against the present appellants and deposition of the injured witnesses is to be given due weightage. It is further submitted that most of the accused persons had been acquitted by the trial Court, that does not mean that the deposition of the ---8--- witnesses cannot be relied upon for conviction of the appellants. The appeal lacks merit and is liable to be dismissed. 13. We have considered the rival submissions made by the learned counsel appearing for the parties and perused the record. 14. It has been contended that the conviction of the appellants with the aid of Sections 148 & 149 of IPC is illegal as the appellants cannot be said to be the members of unlawful assembly and committed the offence in furtherance of their common object. They submit that all the appellants have to be held guilty for their individual acts and it cannot be said that they assembled with their common object to cause death of Kaliy Barela or causing injuries to the injured persons. Shri R.K. Trivedi, learned counsel for the appellants particularly emphasized that there is no overt act alleged against A1 Girdhan for causing injury to the deceased, he cannot be roped with the aid of Sections 148 and 149 of IPC. 15. To commit mischief under Section 149 of IPC it is not necessary that each of the accused must commit some illegal overt act. When the assembly found to be unlawful and if the offence is committed by any member of unlawful assembly in furtherance of the common object, every member of unlawful assembly shall be guilty of the offence committed by another member of the assembly. It is to be borne in mind that an assembly which is not unlawful when assembled may subsequently become an unlawful assembly. 16. In the case in hand 11 persons were injured from the complainant side. They are Vinod Singh Kushwah (PW14), Ravishankar Dehriya (PW15), B.P.S. Bhadoriya (PW21), Ram Murthi Awasthi (PW9), A.P. Singh Chandradeo (PW12), Kailsah Patidar (PW17), R. Surendra Tripathi (PW10), Ghanshyam ---9--- (PW11), Motilal (PW7), Noorsingh (PW18) and Mangilal (PW1). Out of 11 injured eye witnesses Mangilal (PW1), Motilal (PW7), Ram Murthi Awasthi (PW9) and Noorsingh (PW18) turned hostile. PW17 Kailsah Patidar, an injured eyewitness has not named any one for causing injury to the injured or deceased Kaliya Barela. Other prosecution witnesses who were turned hostile are Rolla (PW3), Ibba (PW4), Sursingh (PW6), Kailash (PW16), Ram Chandra Singh (PW24), Badri Prasad (PW25) and Bagariya (PW28). 17. R. Surendra Tripathi (PW10) in his statement has deposed that mob of 400 to 500 persons armed with stone, lathi and axe had attacked the police party and when Kaliya Barela came out of the police jeep and started running to save his life the mob attacked him. He and other police personnels sustained injuries. He further deposed that he cannot say whether accused persons who are present in the Court have caused any injury . From this evidence it is clear that he has not named any of the appellants that they were member of the unlawful assembly or have caused any injury to deceased or other injured persons. Similar is the statement of constable Ghanshyam (PW11), an injured witness and he has also not named any one regarding causing injury to him or police party or to deceased Kaliya Barela. 18. A.P. Singh Chandradev, Assistant Platoon Commander of SAF (PW12) in his statement has deposed that police party was surrounded by mob of 400-500 persons, but he has not identified any of the appellants that it is they who have caused injury to him or the police party or deceased Kaliya Barela. He has further deposed that from the police persons he came to know that the injured person is Roopsingh (A5). 19. Vinod Singh Kushwah (PW14) in his statement has ---10--- deposed that members of Shanti Sena were unlawfully assembled . The mob was guided by A1 and A3, who were armed with gun and arrow & bow. This witness in paragraph 63 of his cross examination has deposed that mob was headed by Madhoo (A3) and Girdhan (A1). There is omission, this fact has not been stated by PW14 in the FIR, which was recorded by him vide Ex.P/37. This witness in paragraph 7 of his statement has deposed that Barkat (A4) and co-accused Sitaram were armed with Axe, Naharsingh (A2) was armed with spear and Buthiya, Gampu, Beerlal, Roomsingh, Rulesingh, Sitaram, Chhabbo, Natrhu, Roomsingh Bhailal, Amarsingh, Lachchhiya, Lalsingh, Raisingh, Kashiram, Geena , Gorelal and Magan were identified by him and they were armed with arrow and bow. He has deposed that A5 had caused arrow injury to him on his left thigh and was shouting to handover remanded accused Kaliya Barela to him, because he will take revenge of murder of Jhagdiya Patel and Jirbhan Patel. In paragraph 9 this witness has deposed that A3 and A2, who were armed with arrow & bow and spear have caused injuries to deceased Kaliya Barela. This witness has further deposed that Girdhan, Roopsingh, Raisingh, Roomsingh, Lachchhiya, Gampu, Geena, Aana, Sitaram, Buthiya, Amarsingh, Bhailal, Kashiram, Lalasingh,, Raisingh, Rulesingh, Barkat, Chhabbo, Sitaram and others caused injuries to deceased Kaliya. In paragraph 10 he has deposed that due to firing by the police party A5 sustained gun shot injury and A5 fell down there. Police party took him and other injured in Mahendra Jeep for their treatment and when they were proceeding from the place of occurrence, suddenly A1, who was armed with gun, along with his companions Lachchhiya, Lalsingh, Raisingh, Kashiram and Seega again attacked the police party. Except A1 all other co- ---11--- accused were acquitted by the trial Court. This witness has deposed that Kaliya was caught hold by the mob and police party had right to cause injury to the said persons. A5 was just near to Kaliya. This witness, who has lodged the FIR has not made any allegation against A5 that deceased Kaliya was caught hold by him. In paragraph 96 he has deposed that A2 and A3 have caused spear and arrow injuries, to deceased. Apart from them he had not noticed as to who had caused other injuries to deceased Kaliya, nor he witnessed the same. He further in paragraph 101 of his cross examination has admitted that in the FIR (Ex. P/37) he has not deposed that Roopsingh (A5) has caused any injury to the deceased. This witness in paragraph 115 has deposed that SDO(P) R.S. Dehriya (PW15) was suspended. He has further admitted that enquiry was made against him and Shri B.P.S. Bhadoriya (PW21), but they were not suspended. In paragraph 17 this witness has further admitted that deceased Kaliya Barela was member of Mukti Sangthan and one of the allegation against him is that he had caused gun show injury to him. 20. Another injured witness Ravishankar Dehriya (PW15), the then SDO(P) has deposed that in the mob of 400-500 persons A1, A2, A4, A3 & A5 were armed with gun, spear, Axe and arrow & bow and other co-accused persons were armed with arrow & bow and Faliya. In paragraph 4 of his statement he has deposed that when mob started coming closure to them he started firing, but despite firing mob was not controlled and one arrow came from mob, which caused injury to PW14 Vinod Singh Kushwah. Other police personnels were also injured. Deceased Kaliya to save his life ran away from the Jeep. On seeing this uncontrolled mob surrounded him and started inflicting injuries by arrow & bow, spear, Axe and Faliya along ---12--- with A2, A3 and A4. Naharsingh (A2) has caused spear injury on the chest of the deceased. This witness in paragraph 8 of his cross examination has deposed that on remand and on the basis of oral order of Superintendent of Police they took Kaliya on police remand from the Judicial Magistrate First Class. In paragraph 10 he has further admitted that Kaliya was never arrested, but had surrendered along with other co-accused persons in the case of murder of two persons before DIG Indore. In paragraph 31 this witness has deposed that for right to private defence when when Vinod Singh Kushwah was injured, then PW14 had caused gun shot injury to Roopsingh (A5). This witness has admitted that this fact is missing in his police statement (Ex.D/4). In paragraph 27 this witness deposed that A5 Roopsingh was known to him much prior to the date of incident, since when he was SDO(P) at Khargone. This witness in paragraph 34 of his cross examination very specifically admitted that deceased Kaliya had not received any gun shot injury, nor any of the police personnel received any gun shot injury. In the mob of 400-500 persons A1 and two more persons were armed with firearm, but except A1 he does not know the name of other persons, who were armed with firearm. This witness in paragraph 36 of his statement has very specifically stated that A1 Gardhan had not caused any injury to any one. In paragraph 44 he has admitted that he in his police statement (Ex. D/4) has not named Madhoo (A3). He has also deposed that he knows Madhoo (A3) and Barkat (A4) from the date of incident. In paragraph 47 he has deposed that deceased Kaliya was not handcuffed in the Jeep. Barkat (A4), who was armed with axe had caused axe injury to Kaliya. In paragraph 50 this witness has deposed that initially when incident started Girdhan (A1) was not present. When they were ---13--- going to Primary Health Center along with A5 and other injured at that time Girdhan came along with 5 other accused persons and tried to stop them, but no overt act has been attributed to him. 21. Kailash Patidar (PW17), an injured eye witness in paragraph 2 of his statement has not named any one regarding causing injury to the injured as well as to the deceased. 22. B.P.S. Bhadoriya (PW21) in paragraph 4 of his statement has deposed that Girdhan (A1) was armed with firearm along with other accused persons, but he has not named A2 to A5, nor stated that they were also present along with other co- accused persons. In paragraph 23 he has confessed that none of the police personnels sustained any gun shot injury. He has further admitted that when police personnels started firing 17 to 18 Aadiwasis attacked the injured. In paragraph 25 he has further admitted that though A1 Girbhan was armed with firearm, but he had not caused any injury by the said firearm. In paragraph 32 of his cross examination he has deposed that when Kaliya came out of the Jeep and started running from the place of occurrence he fell down at a Nala and there only attackers caused injuries by arrow. He has further deposed that 50 to 100 arrow injuries were caused on the whole body of the deceased, but he had admitted that this fact has not been found place in his police statement (Ex. D/6). He has further deposed that they took the dead body of Kaliya from the Nala and at that time he was unconscious. This witness in para 32 of his statement has very categorically admitted that body of injured Kaliya was lying at Nala. 23. Last injured eye witness M.P. Verma (PW27) in paragraph 4 of his statement has named all the five accused- appellants and stated that A2 Naharsingh had caused spear ---14--- injury by throwing it on the person of the deceased and rest of the accused persons along with A3 and A5 have caused