HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Appeal No.651 of 2001 Balchand and another - Versus - State of Chhattisgarh AND OTHER ELEVEN CONNECTED APPEALS JUDGMENTFOR CONSIDERATION — • °^^. - HON'BLE MR. JUSTICE SUNIL KUMAR Sl(MHA Sd/- JWTGG 9.5.2007 Sd/- SunU Kumar Sinha Judge POST FOR JUDGMENT ON II MAY, 2007 Sd/- L.C. Bhadoo Judge HIGH COURT OF CHHATTISGARH. BILASPUR CriminaJ Appeal No.651 of 2001 APPELLANTS: (In custody) Balchand, S/o Kanhaiya Singh, Aged 70 years, resident of Viltage Bhaismudi, P.S. Janjgir, District Janjgir-Champa (Chh.G.) Devilal, S/o Virsai, aged 71 years, R/o village Bhaismudi, P.S. Janjgir, Dist. Janjgir-Champa. - Versus - RESPONDENT: State of Chhattisgarh, Through: P.S. Janjgir, Distt. Janjgir-Champa. Crimina! Appeal No.762 of 2001 APPELLANT: (in Jail) Kumar Singh, S/o Bajrang Singh Thakur, Aged about 34 years, resident of Village Bhaismundi, P.S. Janjgir, District Janjgir- Champa (Chhattisgarh) - Versus - RESPONDENT: State of Chhattisgarh, Through: P.S. Janjgir, Distt. Janjgir (Chhattisgarh) Criminal Appeal No.785 of 2001 APPELLANTS/: (Accused) 1. Santosh Singh, S/o Rameshwar Singh, aged 34 years 2. Rameshwar Singh, S/o Kushal Singh, aged 75 years. 3. Nande Singh, S/o Rameshwar Singh, aged about 30 years. 4. Nand Kumar S/o Rameshwar Singh, aged about 30 years. All residents ofVillage Bhaismundi, P.S. Janjgir, Chhattisgarh. - Versus - RESPONDENT: State of Chhattisgarh, Through: Djstrict Magistrate, Janjgir CriminaLADDeal No.821 of 2001 APPELLANT: Rohit, S/o Harish Chand, aged about 25 years, resident of village Bhains Mudi, Police Station Janjhgir, district. Janjhgir Champa, Chhattisgarh. '^;* - Versus - RESPONDENT: APPELLANT: (!n Jail) RESPONDENT: APPELLANTS/: (in Jaii) RESPONDENT: APPELLANT/: (Accused) (In Jal!) RESPONDENT: APPELLANTS/: (Accused) (InCustody) StateofChhattisgarh, Through District Magistrate, Janjgir Criminal Appeai No.823 of 2001 Gopal Das, S/o Shri La! Das,aged about 26 years, resident of village Bhaismudi, P.S. Janjgir, District Janjgir-Champa (C.G.) - Versus - State of Chhattisgarh, Through: P.S. Janjgir, Distt. Janjgir-Champa (C.G.) Criminai Appeal No.846 of 2001 1. Baran, S/o Narayan Kurmi, Aged about 40 years. 2. Chhatram S/o Shri Ram Kashyap, Aged about 35 years. 3oth are residents of Village Bhaisgudi, Police Station - Janjgir, District - Janjgir. - Versus - StateofChhattisgarh, Through Station House Officer, Police Station, Janjgir Criminal Appeal No.852 of 2001 Raj Kumar, S/o Bajrang Singh. aged 55 years, resident of Bhesmudi, Police Station Janjgir, District Janjgir Champa - Versus - The State of Chhattisgarh, Through the District Magistrate, Janjgir (Sessions Division Bilaspur) Crimina) Appeal No.853 of 2001 1. Nirmai Kashyap, aged 45 years, son of Tirith Ram Kashyap. 2. Jaipal Kurmi, aged 40 years, son ofBaijnath Kurmi. 3, Resham Lal Kurmi, aged 35 years; son of Luru Kurmi. ^ RESPONDENT: (Prosecution) APPELLANT: (Accused) RESPONDENT: APPELLANTS: (Accused) RESPONDENT: APPELLANT: (!n Jail) RESPONDENT: APPELLANT/: (Accused No.20) (In Jail) AII residents of village - Bhaismudi, Police Station - Janjgir, District - Janjgir- Champa (Chhattisgarh) - Versus - StateofChhattisgarh, Through Police Station, Janjgir District - Janjgir-Champa Criminai Appeal No.866 of 2001 Guharam, S/o Bhukhan Kurmi, aged 40 years, resident of village - Bhaismudi, Police Station - Janjgir, District Janjgir(C.G.) - Versus - State of Chhattisgarh, Through the Superintendent, Central Jail, Bitaspur (C.G.) Criminal Appeal No.875 of 2001 1. Dhananjay, S/o Baijnath Kashyap, aged 30 years. 2. Amritlal, S/o Konda Sahu, aged about 40 years. Both residents of village - Bhaismudi, Police Station - Janjgir, District Janjgir (C.G.) - Versus • State of Chhattisgarh, Through the Superintendent, Central Jail, Bilaspur (C,G.) Crimjna! Appeal No.970 of 2001 Basant Das, S/o Shri Lal Das, aged 26 years, resident of Vitlage Bhaismudi, P.S. Janjgir, District Janjgir-Champa (C.G.) - Versus - StateofChhattisgarh, Through P.S. Janjgir, Distt. Janjgir- Champa (C.G.) AND Criminal Appeal No.755 oL2002 Surjan, S/o Saraharam, Aged about 35 years, R/o Village Bhaismudi, District Janjgir-Champa (C.G.) - Versus - RESPONDENT: State of Chhattisgarh, Through S.H.O. P.S. Janjgir, Distt. Janjgir-Champa (C.G.) (Appeais under Section 374 (2) ofthe Cr.P.C.) Present: Mr. N.L. Soni, counsel for the appeDants in CrA.No.651/2001 Mr. Somnath Verma, counsel for the appellants in Cr.A.Nos.762/2001 & 853/2001. Mr. Prafull Bharat, counse! for the appellants in Cr.A.No.785/2001. Mr. Vimiesh Bajpai, counsel forthe appeitant in Cr.A.No.821/2001. Mr. S.L. Bajaj, counsel for the appellants in Cr.A.Nos.823/2001 & 875/2001. Miss Sharmila Singhai, counsel for the appeilants in Cr.A.Nos.846/01 & 755/02. Mr. Prabhakar Singh Chandel, counsel for the appellant in Cr.A.No.852/2001 . Mr. Anant Bajpai, counsel for the appellant in Cr.A.No.866/2001. Dr. Shailesh Ahuja, counsel for the appellant in Cr.A.No.970/2001. Mr. G.K. Beriwai, Deputy Advocate General with Mr. U.N.S. Deo & Mr. D.K. Gwalre, Additional Pubtic Prosecutors for the State/respondent. Division Bench: Hon'ble Mr. L.C. Bhadoo and Hon'ble Mr. Sunil Kumar Sinha. JJ. JUDGMENT (Delivered on ///*• May, 2007) The followina iudament of the Court was delivered bv L.C. Bhadoo, J. 1. Cr.A.No.651/2001 fited by Balchand & Devilal, Cr.A.No.762/2001 filed by Kumar Singh, Cr.A.No.785/2001 filed by Santosh Singh, Nande Singh, Rameshwar & Nand Kumar, Cr.A.No.821/2001 filed by Rohit, Cr.A. No.823/2001 fiied by Gopaldas, Cr.A.No.846/2001 filed by Baran Kurmi & Chhatram, Cr.A.No.852/2001 filed by Raj Kumar, CrA.No.853/2001 fiied by Nirmal Kashyap, Jaipal & Reshamlal, Cr.A.No.866/2001 filed by Guharam, Cr. A.No.875/2001 filed by Dhananjay & Amritlal, Cr.A.No.970/2001 filed by Basant Das and Cr.A.No.755/2002 filed by Surjan are being disposed of by this common judgment, as a!l these appeals are arising out of the same judgment dated 12-7-2001 passed bythe Additional Sessions Judge, Janjgir in Sessions Triai No.342/95. 2. The accused/appellants along with eight other accused persons were tried by the Additional Sessions Judge, Janjgir in Sessions Trial No.342/95 for '•^ committing three ghastly murders of Jawahar Singh and his two sons namely, Bhupendra Singh & Shailendra Singh. 3, By these appeals under Section 374 (2) of the Cr.P.C., the accused/appellants have questioned legality and correctness of the judgment of conviction and order of sentence dated 12th July, 2001 passed by the Additionai Sessions Judge, Janjgir in S.T.No.342/95, whereby learned Additional Sessions Judge after convicting each of the accused/appeilant for commission of offence under Section 302 read with Section 149 ofthe I.P.C. for committing the murders of Jawahar Singh, Bhupendra Singh & Shaiiendra Singh, sentenced each ofthem to undergo imprisonment for whole life and pay a fine of Rs.200/-. The accused/appellants have also been convicted under Section 148 ofthe I.P.C., but no separate sentence has been imposed upon them underthis Section. 4. Case of the prosecution, in brief, is that there were two groups in Village: Bhaismudi, one group was consisting of deceased Jawahar Singh, Bhupendra Singh & others, whereas the other group was of the accused/appellants & others. There was dispute between two groups on account of Panchayat eiections and other reasons. 5. Further case of the prosecution is that in the intervening night of 16t & 17 January, 1995, the accused persons convened a meeting and hatched up a conspiracy to eliminate Jawahar Singh & others. On 17-1-1995 the accused persons formed an unlawful assembly with a common object to murder Viki Singh, Jawahar Singh, Bhupendra Singh, Shailendra Singh & Kaiicharan and in furtherance of the said common object, all of them having deadly weapons committed riot and the murder of Viki Singh near Nawa Talab, thereafter, they proceedtid towards the agricultural field of Jawahar Singh where they committed the murder of Jawahar Singh and his two sons namely, Bhupendra Singh & Shailendra Singh, from there they proceeded to Hoiha Chowk of Bhaismudi and committed the murder of Kaiicharan by attacking with Lathis & Tabbals. For all these three acts, the accused persons faced three separate trials viz., Sessions Trial No.340/95 for commission ofthe murder of Viki Singh, Sessions Triai No.342/95 for commission of murders of Jawahar Singh, Bhupendra Singh & Shaiiendra Singh and Sessions Trial No.341/95 for commission ofthe murder of Kalicharan. 6 Madhubala Bai gave Dehati Nalishi Ex.P-1 at the spot on 17-1-1995 at 3 p.m. to the effect that she is resident of Viltage Bhaismudi. at about 11.30 a.m, she was at her shop,at that time, Karia Sabaria came crying to her shop and said that Viki Singh has been murdered near Nawa Talab by Shiv Sena persons namely. Kumar Singh, Nande Singh, Guharam, Rohit. Jaipal, Resham, Rajkumar Singh, Prahlad Singh, Rameshwar Singh, Dhananjay, Nand Kumar, Santosh & others. When she reached the spot, she saw that all these persons were carrying Lathi, rod, battleaxe etc. They were crying andsaying, 'Iet us now go to the field of Jawahar Singh and finish them there', they started going towards the agricultural field of her father. She and her mother also followed them and requested that once they shouid save their life, but they did not accede their request. While going to the agricultural field, she informed Vinay Singh that Babuji has been murdered near Nawa Talab, Nirmal Kashyap, Amrit, Basant & Baran were also along with them. After reaching the agricultural field, these persons attacked her father Jawahar Singh and brothers Bhupendra Singh & Shailendra Singh with Lathi & Tabbal as a result of which her father Jawahar Singh& brother Bhupendra Singh succumbed to the injuries sustained by them instantaneously, and brother Shaiiendra Singh succumbed to the injuries after 15-20 minutes. AII these persons have committed the murder of her father and brothers. 7 Receiving this report, Head Constable Brajender Singh (R/V-16), Police Station: Janjgir registered the F.I.R. Ex.P-64 for commission of offence under Sections 147, 148 & 302 read with Section 149 of the I.P.C. Merg intimation Ex.P-65 was given by Brajender Singh (R/V-16) Head Constable in respect of the death of Shailendra Singh, whereas merg intimations Exs.P-70 & P-71 in respect of the death of Bhupendra Singh & Jawahar Singh were given by M.L. Shandilya (R/V-22), Inspector of Police. After registration of crime, the Investigating Officer commenced investigation and after giving notice Ex.P-2 to the Panchas, he prepared inquest Ex.P-3 on the body of Bhupnedra Singh. After giving notice Ex.P-51, inquest Ex.P-52 was prepared on the body of Shailendra Singh. After giving notice Ex.P-63, inquest Ex.P-64 was prepared on the body of Jawahar Singh. Body of Bhupendra Singh was sent for post- mortem examination to Primary Health Centre, Janjgir under Ex.P-55 where Dr. P.K. Narula (PW-12) conducted post-mortem on the body of Bhupendra Singh and prepared post-mortem report Ex.P-56. He opined that cause of death of Bhupendra Singh was due to shock as a result of haemorrhage on account of extensive homicidal head injury. Body of Jawahar Singh was also sent for post-mortem examination to Primary Health Centre, Janjgir under Ex.P-58 where Dr. U.C. Sharma (PW-13) conducted post-mortem on the body of Jawahar Singh and prepared post-mortem report Ex.P-59. He opined that cause of death of Jawahar Singh was due to shock and haemorrhage as a result of extensive head injury and the death is homicidal. Body of Shaitendra Singh was sent for post-mortem examination under Ex.P-60 to Primary Health Centre, Janjgir where Dr. A.K. Paiiwal (R/V-14) conducted post-mortem and prepared post-mortem report Ex.P-61. He opined that cause of death was due to shock resulting from haemorrhage caused by extensive head injury and the death was homicidal in nature. 8. After completion of investigation, charge sheet was filed against 20 accused/ appeilants along with other 8 acquitted persons and one Prahiad Singh in the Court of Judicial Magistrate. First Class. Janjgir. who in turn committed the case to the Sessions Judge, Bilaspur, from where learned Additional Sessions Judge received the case on transfer for trial. However, Prahlad Singh died during trial. 9. The prosecution examined 22 witnesses at the trial. Statements of the accused persons were recorded under Section 313 of the Cr.P.C. in which each of the accused denied the material appearing against each of them in the prosecution evidence. They stated that they are innocent and have been falsely implicated in the crime. Accused Ganesh Prasad stated that the deceased persons and their party persons were involved in selling of illidt liquor and therefore, they were having grudge against their group because they beiong to Shiv Sena and they were not aliowing any iliegal activities in the viHage. During the Panchayat elections, the candidate of deceased party lost elections, therefore, they are having animosity against them. Accused Gopa! Das stated that on 17-1-1995 he was not at village Bhaismudi, as he went to Raigarh, he was at Raigarh from 8.30 a.m. to 5 p.m. and on that day he under went medical test. The accused persons examined Laiit Kumar (DW-1) & Dinesh Chandra Pathak (DW-2) in their defence. lO.Learned Additionai Sessions Judge after hearing counse! for respective parties, convicted and sentenced the accused/appellants as aforementioned and acquitted accused Ganesh Prasad, Sanat Sahu, Anand Ram, Murari Singh, Sadanand, Bhagat, Janak & Nanki Babu. 11. We have heard learned counsel for the accused/appellants Mr. S.L. Bajaj, Mr. N.L. Soni, Mr. Somnath Verma, Mr. Prafuil Bharat, Mr. Vimlesh Bajpai, Miss Sharmiia Singhai, Mr. Anant Bajpai & Dr. Shailesh Ahuja, as also Mr. G.K. Beriwal, learned Deputy Advocate General with Mr. U.N.S. Deo & Mr. D.K. Gwalre, iearned Additional Public Prosecutors on behaif of the State/ respondent, perused the record and judgment ofthe trial Court. 12. Learned counsel for the appellants have not disputed the homicidal death of Jawahar Singh, Shaitendra Singh & Bhupendra Singh. Moreover, Dr. U.C. Sharma (PW-13) who conducted post-mortem on thebody of Jawahar Singh has stated that there were 4 incised wounds on various parts of head of Jawahar Singh viz., fracture in skull bone, brain material was coming out, clotted blood on neck and face, crack fracture in the midline of skuli & parietal bones. On dissection of brain it was found that there was haemorrhage. He has stated that after conducting post-mortem. he reached to the conclusion that the death of Jawahar Singh was homicidal. 13.0r. P.K. Narula (PW-12) has stated that on 18-1-1995 he conducted post- mortem on the body of Bhupendra Singh, there were 7 incised wounds and three contusions on various parts of head & face. He has further stated that there was fracture in skull bone and parietal bone. On examination of skull, it was found that there was sludge of subcutaneous haemotoma below the skull bone, there was fracture on the right side of frontal bone extending up to occipital bone, skull turned into many pieces, there was huge extradural haemotoma and the injuries were sufficient in the ordinary course of natural to cause death. The death of Bhupendra Singh was as a result of shock and excessive haemorrhage and homicidal in nature. 14 Dr. A.K. Paliwal (PW-14) has stated that on 18-1-1995 he conducted post- mortem on the body of Shailendra Singh and there were incised wounds on skuli, parietal and occipital regions, both the parietal bones were fractured into pieces, there was subcutaneous haemotoma all over the skull, extensive extra durai haemotoma was also there and there was intra cerebral haemorrhage of brain. The cause of death was head injury and the injury was ante-mortem in nature. The death was homicida! in nature and the injuries were sufficient in the ordinary course of nature to cause death. 15. Therefore, from the above medical evidence, as also the ocular evidence of Smt. Madhubala Devi (PW-1) & Saraswati Bai (PW-3), who witnessed the assault made by the accused persons, it is established that the deaths of Jawahar Singh, Shailendra Singh & Bhupendra Singh were homicidal in nature. 16. As regards involvement of the accused/appetlants in commission of murders of Jawahar Singh, Shailendra Singh & Bhupendra Singh, Section 149 of the I.P.C. proyides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likeiy to be committed in prosecution of that object, every persons who, at the time of the committing of that offence, is ^ ^ a member ofthe same assembty. is guilty of that offence. Section 141 requires a minimum of five persons for being designated as an 'unlawfu! assembly'. 17. The law on the point is that mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an untawful assembty is not proved, the accused persons cannot be convicted with the help ofSection 149. The crucial question to determine Js whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects. as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likety to commit any of the acts which fall within the purview of Section 141. The "common objecf of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or nearthe scene ofthe incident 18.A common object may be formed by express agreement after mutuat consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object. and as a consequence of this the effect of Section 149 I.P.C. may be different on different members of the same assembly. 10 19 In the matter of Sabbi Mallesu and others vs. State of A.P. reported in (2006) 10 SCC 543 the Apex Court held that where a large number of people allegedly took part in commission of offence, possibility of some bystanders being falsely implicated cannot be ruted out. It was further held that on facts and circumstances of the case atlegations that the accused persons on account of land dispute beat deceased persons indiscriminately resulting into their death - No specific overt act was attributed to co-accused persons - Nor there was any common object on the part of all accused so as to make themselves liable for conviction. 20 tn order to establish charge against the accused persons, the prosecution has examined four eyewitnesses i.e. Smt. Madhubala Devi (PW-1), Saraswati Bai (R/V-3), Vinay Kumar Singh (R/V-10) & Narayan Yadav (PW-11). As far as Narayan Yadav (PW-11) is concerned, he has turned hostile. Even the prosecution witnesses have stated that when the accused persons entered the field of Jawahar Singh, this person (Narayan Yadav) ran away. Therefore, only the evidence ofthree witnesses remained to be scrutinized. 21. Smt. Madhubala Devi (R/V-1) has stated in her evidence that at about 11-11.30 during the day when she was at her shop, Karia Sabaria came crying saying that Viki Singh has been murdered near Nawa Talab. She went towards Nawa Talab and saw that Viki Singh was murdered where Nande, Kumar Singh, Jaipal, Amrit, Basant, Baran. Guha, Resham, Nand Kumar, Santosh, Raj Kumar, Rameshwar, Ganesh Chaubey, Nirmal, Sanat, Nanki Babu, Thandu Das, Chhatram, Dhananjay, Rohit Karsh, Gopal Das, Devilal, Surjan, Bhagwat, Balchand & Melabai were there. Nande & Melabai said 'whatever has happened, happened Viki Singh has been murdered let us go and finish his nephews Shailendra Singh & Bhupendra Singh and brother Jawahar Singh, otherwise they will not save you', on which these persons started going towards the agricultural field where her brothers Bhupendra Singh, Shaitendra Singh & father Jawahar Singh were working along with Narayan Yadav. The accused persons were carrying Lathi, battle axe, sword and rod, they were saying that they will fin'ish Jawahar Singh and his two sons. She along with her mother was following them and were requesting them with folded hands to once save their lives on which Nande picked up Lathi in order to assautt her. but even then she continued to make request. After reaching the field, Nande attacked her father with Lathi as a result of which her father sustained injury on his head, brain started coming out and blood started oozing out of the injury. Thereafter, Jaipal & Amrit attacked his father on head with battle axe and Resham, Baran, Kumar, Guha, Jaipal, Nand Kumar, Basant Das and all other 11 accused persons whose names have been mentioned earljer attacked her father and brother Shailendra Singh. Jaipal attacked her brother Shailendra with Lathi and other accused persons also attacked her brother with Lathi & Tabbal. Few people were attacking her father and few people were attacking her brother Shailendra. When her mother said to her brother Bhupendra that he will be saved, her brother Bhupendrastarted running, on which Kumar shouted that Bhupendra is running, cateh him whereupon Surjan came and attacked her brother with Rampa on his head. Thereafter, Nande, Kumar, Basant, Baran, Amrit, Guha, Jaipal, Resham and other accused persons attacked Bhupendra. Basant attacked her father with Lathi. 22. Saraswati Bai (PW-3) has corroborated the above evidence and stated that Nande, Kumar, Baran, Basant, Raj Kumar, Santosh Kumar. Nand Kumar, Amrit, Guha, Resham, Gopal Das, Rameshwar Singh, Devilal, Balchand and all other accused persons were at the scene. Nande was carrying Lathi, Kumar was carrying Tabbal, Amrit was carrying battle axe, Basant was carrying rod, Janak was carrying Kharda and the remaining accused persons were carrying Lathi, they were attacking Viki Singh. Thereafter, they left for the agricultural field of her husband saying that they will murder Jawahar Singh and his two sons namely, Bhupendra Singh & Shailendra Singh. She requested the accused persons with folded hands to save their lives, but they did not pay any heed to her prayer and the whole group said that they will murder Jawahar Singh and his two sons. She along with her daughter was following them, they reached to the ptace where husband and two sons were working in the field of Bandhai Khar and they murdered her husband and two sons by attacking them with deadly weapons. When Bhupendra Singh was running a\vay, Surjan attacked him with Rampa. Nande, Baran, Kumar, Resham, Guha, Amrit, Jaipal, Basant and all other accused persons attacked her husband & two sons and committed their murder. 23 VInay Kumar Singh (R/V-10) has also corroborated the evidence of Smt. Madhubala Devi (PW-1) & Saraswati Bai (PW-3). 24. Learned counsel appearing for the accused/appellants argued that as far as the evidence of Vinay Kumar Singh (PW-10) is concerned, his presence at the scene of occurrence was doubtful, he is a created witness. They also argued that the accused persons have been falsely implicated on account of animosity. They further argued that names of accused persons namely, Chhatram, Gopal Das, Balchand, Devilal & Surjan have not been mentioned in the F.1.R. Moreover, in the Court evidence as well as in the statement recorded under B 12 Section 161 of the Cr.P.C.. no overt act has been attributed in respect of Devilal, Balchand, Chhatram, Gopal Das, Santosh Singh, Nirmal, Rohit, Dhananjay, Rameshwar & Raj Kumar Singh. They also argued that in the statements of the witnesses recorded under 161 of the Cr.P.C., no specific overt act of each