[2026:RJ-JP:32981-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

D.B. Criminal Appeal No. 434/1984

CNR: RJHC020000091984 | URN: CRLA / 368U / 1984

1. Bhura s/o Jagannath, (Since deceased)

2. Bhanwarlal s/o Gokul,

3. Uda son of Bhura,

4. Chatra son of Dhana, (Since deceased)

5. Purshotam s/o Jagdish, (Since deceased)

Through his legal representative:

5.1. Rakesh Kumar Parashar son of Late Shri Purshotam,

6. Mohan son of Devi Lal,

7. Gokul son of Mala, (Since deceased)

8. Mohd. Hussain s/o Allauddin, (Since deceased)

9. Deva Lal son of Gokul, (Since deceased)

10. Mohan son of Sarvan, (Since deceased)

11. Balu son of Chunna, (Since deceased)

12. Polu son of Madho,

13. Madia @ Modu s/o Surja, (Since deceased)

14. Abdul Salaam s/o Chhote Khan,

15. Gheesa Lal s/o Narain, (since deceased)

Through his legal heir:

15.1 Smt. Harku Devi wife of Late Shri Gheesa Lal, Resident of

Village Rajmahal, Police Station Dooni, District Tonk.

16. Nathu son of Mangi Lal, (Since deceased)

17. Sheoji son of Gokul, (Since deceased)

18. Abdul Gaffar s/o Allanoor,

19. Sukhdeva s/o Sunder Lal,

20. Nanda @ Kalya s/o Gangaram, (Since deceased)

All residents of Village Rajmahal, P.S. Duni, District Tonk

----Accused-Appellants

Versus

State of Rajasthan

----Respondent

For Appellant(s) : Mr. Vivek Raj Bajwa, Sr. Adv. with

Mr. Amar Kumar

Ms. Savita Nathawat

For Respondent(s) : Mr. Amit Kumar Punia, PP

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HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

HON'BLE MR. JUSTICE PRAMIL KUMAR MATHUR

Judgment

Date of Conclusion of Arguments : 19.08.2026

Date on which judgement is reserved : 19.08.2026

Whether the full judgment or only the

operative part is pronounced : Full Judgement

Date of pronouncement : 03.09.2026

PER HON'BLE MAHENDAR KUMAR GOYAL, J.

Under challenge in this criminal appeal are the judgement of

conviction and order of sentence dated 17.09.1984 passed by the

learned Sessions Judge, Tonk (for brevity, ‘learned trial Court’) in

Sessions Case No.40/82 whereby, the accused-appellants (for

brevity, ‘appellants’) have been convicted and sentenced as

under:-

Section 302 IPC or in the alternative,

Section 302/149 IPC :- Life imprisonment and

fine of Rs.200/- each; in default whereof, two

months’ rigorous imprisonment each.

Section 448 IPC:- One year’s rigorous

imprisonment each.

Section 436/149 IPC:- Five years’ rigorous

imprisonment and fine of Rs. 100/- each; in default

whereof, one month’s rigorous imprisonment each.

Section 323/149 IPC:- Six months’ rigorous

imprisonment each.

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All the sentences to run concurrently.

The brief facts, in a nutshell, are that based on the parcha

bayan (Ex. P66) of Shri Tarachand (PW4) recorded on 03.06.1982

at about 10:30 am at Gram Panchayat Bhawan, Rajmahal, an FIR

No.28/82 dated 03.06.1982 came to be registered at Police

Station Duni, District Tonk for the offences under Sections 302,

147, 148, 149, 436, 325, 323 and 379 IPC. It was averred therein

that he is a resident of Kanjar Basti, Rajmahal and for last few

days, the villagers of Village Rajmahal have boycotted the

residents of the Kanjar Basti and were not permitting them to visit

the village. It was alleged that on the fateful day of 03.06.1982,

at about 5:00 am, 4-5 villagers had come to their basti and asked

for the culprits who have allegedly stolen two fodder bundles from

their fields and upon their denial, they asked him and his father-

Hawalia to accompany them to the village panchayat which they

refused. It was further alleged that about 7:00 am, a large

number of villagers, out of which some were named, came armed

with lathis and attacked their basti. It was claimed that his father

and Kanhaiya were beaten to death and some of them were

injured including himself. It was also alleged that their houses and

household goods were torched to fire and some articles were also

stolen. After investigation, 33 accused were charge-sheeted for

the offences under various provisions of IPC including Section 302

IPC. Charges under various provisions of IPC were framed against

all the charge-sheeted accused person s who were put to trial.

However, during the trial, accused-Surajmal expired and the

proceeding was dropped against him. After trial, while, 12 accused

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persons were acquitted of the charges framed against them, 20

accused appellants were convicted and sentenced, as supra.

This appeal was preferred by all the twenty accused persons

convicted by the learned trial Court, however, during its pendency,

the appellants barring the appellants namely Bhanwarlal Gurjar,

Uda Gurjar, Mohan, Polu Raigar, Abdul Salaam, Abdul Gaffar and

Sukhdeva, expired. The legal representatives of two of the

deceased appellants namely Puroshottam and Gheesa Lal were

taken on record under Section 394 of the Cr.P.C. Therefore, this

appeal survives qua the aforesaid 9 appellants.

Assailing the impugned judgment of conviction and order of

sentence, learned Senior counsel Shri Vivek Raj Bajwa for the

appellants contended that the findings of the learned trial Court

are based on conjectures and surmises and, as a matter of fact,

there is no legally admissible evidence available on record to

connect them with the alleged crime. Inviting attention of this

Court towards the testimony of injured eye witnesses namely,

Tarachand (PW4), Kangresia (PW5), Seeta (PW7), Nakhima

(PW9), Bhag Chand (PW11) and Kamla (PW10) as also that of

other eye witnesses viz; Geeta Kumari (PW6), Sohni (PW8) and

Vakilya (PW12), he contended that the same is full of

contradictions and improvements on material aspects of the case

rendering the same totally unreliable and it was not safe for the

learned trial Court to have recorded their conviction based on such

sketchy evidence. Relying upon a Constitution Bench judgement in

the case of Masalti Vs. State of UP: AIR 1965 Supreme Court

202: MANU/Supreme Court/0074/1964 , learned Senior

Counsel canvassed that whe n, there is a large number of

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offenders as also a large number of victims, it is a safe practice to

be adopted by the Court that conviction should be based only if it

is supported by at least two, or three or more witnesses who give

a consistent account of incident. He submitted that in the instant

case, testimony of neither of the two witnesses is consistent as to

either their presence at the scene of crime or, the role attributed

to the appellants.

Shri Bajwa argued that except the ocular testimony, which is

not otherwise reliable, the prosecution has not come up with any

other corroborative piece of evidence, such as recovery of the

weapon(s) of offence or of any other incriminating evidence

including their bloodstained clothes or the blood smeared soil

collected from the place of alleged crime, to warrant their

conviction.

Learned Senior Counsel asserted that although, their

conviction has been recorded under Section 436/149 IPC but,

without recording any such finding that they had committed

mischief by fire to destroy any building used by the victims as

residence or the place of worship or as the human dwelling or the

place for custody of the property, in absence whereof, their

conviction is not sustainable.

In the aforesaid background, he prayed that the appeal be

allowed, the impugned judgement of conviction and the order of

sentence be quashed and set aside and the appellants may be

acquitted of the charges framed against them.

Per contra, learned Public Prosecutor-Shri Amit Kumar Punia,

opposing the submissions, contended that the learned trial Court

has recorded the finding of guilt of the appellants based on cogent

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material on record and the prosecution was able to establish its

case beyond a reasonable doubt from the evidence led by it which

warrants no interference by this Court under its appellate

jurisdiction. Shri Punia asserted that from the testimony of the

injured eye witnesses and other eye witnesses, which was wholly

reliable, it was proved that the appellants, acting individually or in

concert with other members of an unlawful assembly, in

furtherance of their common object, committed murder of Hawalia

and Kanhaiya, inflicted injuries to many members of the

complainant party and also torched their houses and household

belongings. He, therefore, prayed for dismissal of the appeal.

Heard. Considered.

The instant case involves death of Hawalia son of Sua as also

of Kanhaiya son of Katya and injuries to twelve persons.

As per the Postmortem Report (Ex. P1) of the body of the

deceased-Hawalia, he had received a large number of injuries

comprising two lacerated wounds on head with no corresponding

internal injury, one injury on left hand resulting into fracture of

the bone of upper arm and five to ten contusions on left side of

the chest with corresponding tearing of the membrane of left lung

and fracture of fifth, sixth, seventh and eighth ribs with their

broken ends puncturing the lung. Upon examination of the left

lung, wounds were found below the broken ribs while, the right

lung was found to be healthy. All the injuries were found to be

ante-mortem in nature with blunt weapon. As per medical opinion,

the cause of death was multiple injuries and shock on account of

internal hemorrhage and injury to left lung which were sufficient in

the ordinary course of nature to cause death.

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As per Ex. P2-the Autopsy Report of deceased-Kanhaiya,

there were injuries in the shape of lacerated wound and

contusions on face and head, an injury each on the right leg and

right arm with a number of contusions on the right chest. No

fracture of skull bone was found. However, fracture of lower part

of tibia was found with fracture of fifth to tenth ribs with their end

penetrating the membrane of right lung and crushing it. All the

injuries were ante-mortem in nature with blunt weapon and were

found to be sufficient in the ordinary course of nature to cause

death which was on account of multiple injuries and shock due to

internal hemorrhage and crushing of right lung.

As per the injury reports of Kangresia (Ex. P3), Sobadariya

(Ex. P4), Kumari Gyantara (Ex. P47), Kumari Vimlesh (Ex. P48),

Smt. Batani (Ex. P49), Smt. Seeta (Ex. P50), Smt. Nakhima (Ex.

P51), Smt. Kamla (Ex. P52), Kumari Chandrakala (Ex. P53),

Kumari Manti (Ex. P54), Bhagchand (Ex. P59) injuries to them

were found to be simple in nature whereas, out of 18 injuries

received by Tarachand (Ex. P46), two injuries were found to be

grievous being fracture in right and left hand respectively.

Neither the Autopsy Reports nor, the Injury Reports were

questioned by the defence during the course of cross-examination

of Dr. S.D. Sharma (PW1) and Dr. Vimal Kumar Jain (PW15) who

have prepared the same rather, were admitted. On that premise, it

is found to be an established case of culpable homicide of

deceased-Hawalia and Kanhaiya and of injuries to as many as

twelve members of the complainant-party.

From the prosecution case as also from the defence

evidence, an admitted position which emerges is that there was

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animosity in between the complainant and the accused-party.

While, it was allegation of the accused-party that the members of

the complainant-party used to tease their women folk and used to

steal their cattle and/or other articles, grievance of the

complainant-party was that the accused-party had boycotted

them, did not permit them to visit the village nor, used to engage

in any business with them. In t his factual backdrop, the

prosecution case is that on the fateful day of 03.06.1982, at about

5:00 am, some of the villagers visited the basti of the complainant

with a request to handover the culprits to them who had allegedly

stolen their two bundles of hay and upon their refusal, they

insisted the complainant-Tarachand (PW4) and his father to

accompany them to the village panchayat which was declined.

Thereafter, by beating of drum, the villagers were gathered and

about 200-250 villagers, armed with lathis, attacked the

complainant’s basti, beaten Hawalia and Kanhaiya to death and

also injured as many as 12 persons, as stated hereinabove.

Although, none of the prosecution witnesses has stated that they

came armed to commit murder of Hawalia and Kanhaiya or for

that matter, any other member of the complainant side but, from

the aforesaid circumstances, it can safely be gathered that the

villagers, who came in a very large number armed with lathis and

had attacked the members of the complainant-party, constituted

an unlawful assembly and in furtherance of their common object,

committed murder of Hawalia and Kanhaiya and also injured a

large number of members of the complainant-party. Their

common object to commit murder can also be assessed from the

large number of injuries on the vital parts of the body of the

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deceased including the head and chest which were, as per the

unchallenged medical opinion, sufficient in ordinary course of the

nature to cause death.

In the case of Sitaram Kuchhbedia Vs. Vimal Rana and

Others: Criminal Appeal No(s).183 7-38 of 2011 and another

connected matter, it was held by the Hon'ble Supreme Court that

determination of intention, being a state of mind, is seldom

susceptible to a rigid or mechanical formula and it must

necessarily be gathered from the cumulative effect of the

circumstances proved on record including the nature of weapon

used, the part of body targeted, the manner of assault, the

number of injuries and the circumstances surrounding the

occurrence. While holding the respondents guilty of the offence

under Section 302 read with Section 149 IPC, it was further held

that the deceased was subjected to a concerted assault by the

accused respondents who were armed with lathis with nothing on

record to suggest that the same were picked up casually at the

spot rather, the accused were lying in wait prepared to launch the

assault on the unsuspecting victims. In view of the fact that there

was deliberate obstruction of the road by the respondents by

placing tube-well pipes, their prior presence in the form of an

unlawful assembly armed with lathis and the repeated blows

inflicted upon the deceased including multiple injuries in head

region and so also to the other injured persons, was sufficient to

cumulatively demonstrate that the assault was neither sudden nor

an isolated act aimed at chastisement, but was rather a concerted

intentional attack. The Hon'ble Supreme Court further held that

when repeated blows are inflicted on the parietal and temporal

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regions with lathis resulting in bone-deep lacerations causing

fractures and brain damage and culminating in coma, it cannot be

said that the assailants lacked the intention to inflict such bodily

injury as was sufficient in the ordinary course of nature to cause

death. In the conspectus of aforesaid evidence, Their Lords hips

were pleased to hold that the accused-respondents had formed an

unlawful assembly and acted in prosecution of the common object

of such assembly, i.e., to assault the victims.

In the instant case, however, from the prosecution evidence,

as would be discussed later on at the appropriate place, it is also

revealed that not all the villagers who had come, were members

of unlawful assembly but, some of them were, on the contrary,

trying to dissuade the assailants from attacking the residents of

the Kanjar Basti. Therefore, it could not be presumed that all the

villagers numbering about 200-250, who had visited the Kanjar

Basti, were members of the unlawful assembly; rather, cases of

the appellants are required to be examined individually in the light

of the prosecution evidence available against them.

In the aforesaid factual and legal context, now, the question

arises as to whether the prosecution was able to establish, beyond

reasonable doubt, that the appellants, acting individually or in

concert with the other members of the unlawful assembly,

committed murder of Hawalia and Kanhaiya inasmuch as the

learned trial Court has recorded their conviction under Section 302

or in the alternative, under Section 302/149 IPC.

A perusal of the material on record reflects that out of the

present appellants, charge under Section 302 IPC simplicitor was

framed only against the appellants-Bhanwarlal and Uda and

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against rest of the appellants, charge was framed under Section

302 read with Section 149 IPC. However, all the appellants,

including the appellants who have expired during pendency of the

appeal, were convicted under Section 302 or in the alternative,

under Section 302/149 IPC which is found to be violative of the

provisions of Section 354(2) CrPC which mandate that when the

conviction is under the IPC and it is doubtful under which of the

two Sections, or under which of two parts of the same Section of

that Code the offence falls, the Court can distinctly express the

same and pass judgement in the alternative. Thus, the condition

precedent for recording conviction in the alternative Sections is

that the Court must distinctly express its doubt, under which of

the two Sections the offence falls. However, a perusal of the

judgement impugned would reflect that while recording conviction

in the alternative, no such finding was recorded. As a matter of

fact, the judgement is bereft of any reason as to why the

conviction was recorded under Section 302 or in the alternative,

under Section 302/149 IPC. Further, it is not reflected from the

impugned judgement as to why conviction of the appellants was

recorded under Section 302 IPC simplicitor inasmuch as there is

no finding that death of Hawalia or for that matter Kanhaiya was

on account of injuries attributable only to each appellant

individually. It is also not reflected from their postmortem reports

that any particular injury was cause of their death rather, it was on

account of cumulative effect of the injuries sustained by them.

Be that as it may, before we propose to consider its effect on

the validity of the impugned judgement and the findings of

conviction, if so required, first, we propose to analyze the

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evidence to adjudge as to whether the prosecution was able to

establish participation of the appellants in murder of Hawalia and

Kanhaiya either individually or in furtherance of the common

object of the unlawful assembly.

In the present case, there was a large number of assailants

as also victims. For appreciating the evidence in such cases

involving unlawful assembly, in the case of Ranvir Singh and

Others Vs. State of Madhya Pradesh: (2023) 14 Supreme

Court Cases 41, the Hon'ble Supreme Court of India succinctly

held that where presence of a large group of person belonging to

the accused side is established involving the applicability of

Section 149 IPC, a little more scrutiny is required on the part of

the Court as there may be a tendency to falsely implicate the

person along with the actual accused and the Courts will have to

be very circumspect while sifting through the evidence in such

cases. Another judgement of the Hon'ble Supreme Court in the

case of Arvind Kumar Vs. State of Rajasthan: (2022) 16 SCC

732 was referred to and relied upon wherein, it was held that the

Court will have to be more circumspect and cautious while dealing

with the case of an accused charged under Section 149 IPC as it

involves a deeming fiction. Therefore, a higher degree of onus is

required to be put on the prosecution to prove that a person

charged with the offence is liable to be punished for the offence

committed by the others under Section 149 CrPC. Another

judgement in the case of Baladin Vs. State of UP: AIR 1956

Supreme Court 181 was also relied upon wherein, it was held

that mere presence in an assembly does not make a person a

member of the unlawful assembly unless it is shown that he had

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done or omitted to do something which would show that he was a

member of such unlawful assembly or unless the case fell under

Section 142 IPC. It was also held that if all the members of a

family and other residents of the village assembled at the place of

occurrence, all such persons could not be condemned ipso facto as

members of the unlawful assembly. The prosecution in all such

cases shall have to lead evidence to show that a particular

accused had done some overt act to establish that he was a

member of the unlawful assembly and it would require the case of

each individual to be examined so that mere spectators who had

just joined the assembly and were unaware of its motive, may not

be branded as the members of the unlawful assembly.

In the case of Ranjit Singh Vs. State of Punjab: (2013)

16 SCC 752, it was held as under:-

"39. That in a faction-ridden village community, there

is a tendency to implicate innocents also along with the

guilty, especially when a large number of assailants are

involved in the commission of an offence is a matter of

common knowledge. Evidence in such cases is bound

to be partisan, but while the courts cannot take an

easy route to rejecting out of hand such evidence only

on that ground, what ought to be done is to approach

the depositions carefully and scrutinise the evidence

more closely to avoid any miscarriage of justice.”

(Emphasis in original)

If the prosecution evidence is examined on the touchstone of

the principles of law laid down in the aforesaid cases, we notice

that to drive home the aforesaid charge, the prosecution has

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relied upon the testimony of injured eye witnesses namely

Tarachand (PW4), Kangresia (PW5), Seeta (PW7), Nakhima

(PW9), Bhag Chand (PW11) and Kamla (PW10) and other eye

witnesses namely Geeta Kumari (PW6), Sohni (PW8) and Vakilya

(PW12). Since, there are a large number of accused-appellants as

also a large number of injured persons including deceased, for the

sake of convenience, we would like to examine case of each

appellant individually and separately.

Bhanwarlal son of Gokul by caste Gurjar:- We are

consciously referring the complete name of the appellant including

his surname inasmuch as another accused sharing the same

name, i.e., Bhanwarlal but, son of Asharam by caste Raigar was

also put to trial but, was acquitted by the learned trial Court vide

judgement impugned. For convenience, we would refer the

appellant as Bhanwarlal Gurjar hereinafter.

The injured eye witness-Tarachand (PW4) has stated, in his

examination-in-chief, that Bhanwarlal and Hussain inflicted lathi

blow to his father-Hawalia and other persons were also beating

whose name he was not acquainted with. However, he has not

specified as to which Bhanwarlal was the assailant, i.e., whether

the appellant-Bhanwarlal Gurjar or the co-accused-Bhanwarlal

Raigar. During his cross-examination, he has alleged Bhanwarlal

to have beaten his father and has stated that he had identified

him and had also memorized his name but, feigned ignorance as

to why his name did not figure in the written report (Ex.P66)

lodged by him immediately after the incident. It may be pertinent

to observe here that the law postulates the genuineness and

truthfulness of the contents of the FIR, if lodged immediately after

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the incident without any delay as it rules out probability of any

manipulation. He has further stated that he has mentioned name

of the appellant-Bhanwarlal as the accused who had set fire but,

he was unaware why it was not so mentioned in the written report

or in his police statement (Ex. D1). Taking a contrary stand to his

examination-in-chief, he has further stated that his father was

surrounded only by Bhanwarlal and Mohd. Hussain.

Thus, from the aforesaid testimony, it is apparent that he

has not specified as to which Bhanwarlal inflicted injuries to his

father and despite identifying him and memorizing his name, his

name did not figure in the written report (Ex. P66) lodged by this

witness. Thus, it raises a doubt as to which Bhanwarlal, out of the

two accused sharing same name, attacked his father and further,

absence of his name in the written report submitted by PW4

himself immediately after the incident despite categorically

admitting, during his cross-examination, that he had not only

identified him but, also memorized his name, raise a serious doubt

as to reliability of his deposition against the appellant-Bhanwarlal

Gurjar.

Another injured eye witness namely Kangresia (PW5), has, in

his examination-in-chief, levelled specific allegation against the

appellant-Bhanwarlal Gurjar and Hussain to have beaten his father

with lathis but, during his cross-examination, he has stated that in

his police statement (Ex. D2), he has wrongly stated that in

addition to Bhanwarlal and Hussain, Devilal also inflicted lathi

blows to his father. He has further stated that his father was

surrounded by about 40-50 person. Geeta Kumari (PW6), another

injured eye witness has stated, in her examination-in-chief, that

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Bhanwarlal, Devilal and Hussain had beaten his grandfather, i.e.,

Hawalia and Bhanwarlal was carrying a farsi (a sharp edged

curved weapon). Further, taking a contrary stand to that of the

PW4 and the PW5, who have stated that their father was beaten in

open, she has stated that her grandfather was beaten inside the

house. Further, from her testimony, it is not reflected as to which

Bhanwarlal had beaten her grandfather. Moreover, she was stated

him to have carried a farsi and not lathi as alleged by other

prosecution witnesses.

Another prosecution witness namely Seeta (PW7) has alleged

that Hussain and Bhanwarlal had inflicted lathi blow on head of

her father-in-law without specifying as to exactly which

Bhanwarlal. In her cross-examination, she has stated that she was

acquainted with the accused-Bhanwarlal present in Court.

However, her statement was recorded on 22.02.1983 and from the

order-sheet of the learned trial Court for that day, we find that

except the accused-Ramkaran, all the other accused were present

in the Court meaning thereby both the Bhanwarlal were present

and there is nothing on record to suggest whether she had

identified the present appellant, i.e., Bhanwarlal Gurjar or the

other one.

The other prosecution witnesses namely Sohni (PW8),

Nakhima (PW9) and Kamla (PW10) have not named the appellant

during their deposition.

Bhagchand (PW11) has alleged that Mohan, Uda, Bhanwarlal,

Hussain and Devlal had beaten Hawalia but, again, he did not

identify which Bhanwarlal.

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The remaining prosecution witness namely Vakilya (PW12),

though, has alleged in his examination-in-chief that the appellant-

Bhanwarlal Gurjar inflicted injuries to Hawalia but, in his cross-

examination, he has categorically stated that a large number of

villagers were shouting not to assault, not to quarrel and he had

identified Bhanwarlal as one of them who was requesting not to

assault. Thus, his cross-examination demolishes the allegation

levelled by him against the appellant in his examination-in-chief.

Thus, from the aforesaid prosecution testimony, we find that

only PW5-Kangresia and PW12-Vakilya have levelled specific

allegation against the appellant-Bhanwarlal Gurjar of inflicting

injuries to deceased but, the PW12 has admitted during his cross-

examination that Bhanwarlal was one of the villagers who was

requesting the other villagers not to assault rendering his

allegation not to be reliable. In view thereof, we are left with the

sole testimony of Kangresia. However, as already observed, in his

cross-examination, the PW5 has admitted that although, his father

was attacked by only two person, he was unaware as to why name

of Deva came to be mentioned in his police statement (Ex. D2).

He has further admitted that 'c' to 'd' part of his police statement

wherein, he has levelled allegation against as many as 32 persons

of attacking them, was wrong and he did not mention these

names. Most importantly, the rigour of his allegation also gets

diluted in view of the deposition of the PW12. In the conspectus of

aforesaid analysis, we find that even the testimony of Kangresia

(PW5) is not of sterling worth if we go by the doctrine that

testimony of a single witness is sufficient to warrant conviction if it

is trustworthy, wholly reliable and free from any suspicion .

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Further, a Constitution Bench has, in the case of Masalti (supra)

wherein, the High Court has adopted a mechanism of recording

the conviction of only those accused against whom four or more

prosecution witnesses have deposed consistently, held as under:-

“16. Mr. Sawhney also urged that the test applied by

the High Court in convicting the appellants is

mechanical. He argues that under the Indian Evidence

Act, trustworthy evidence given by a single witness

would be enough to convict an accused person,

whereas evidence given by half a dozen witnesses

which is not trustworthy would not be enough to

sustain the conviction. That, no doubt is true; but

where a criminal court has to deal with evidence

pertaining to the commission of an offence

involving a large number of offenders and a large

number of victims, it is usual to adopt the test

that the conviction could be sustained only if it is

supported by two or three or more witnesses who

give a consistent account of the incident. In a

sense, the test may be described as mechanical;

but it is difficult to see how it can be treated as

irrational or unreasonable. Therefore, we do not

think that any grievance can be made by the appellants

against the adoption of this test. If at all the

prosecution may be entitled to say that the seven

accused persons were acquitted because their cases did

not satisfy the mechanical test of four witnesses, and if

the said test had not been applied, they might as well

have been convicted. It is, no doubt, the quality of the

evidence that matters and not the number of witnesses

who give such evidence. But, sometimes it is useful to

adopt a test like the one which the High Court has

[2026:RJ-JP:32981-DB] (19 of 30) [CRLA-434/1984]

adopted in dealing with the present case.” (Emphasis

supplied)

The aforesaid judgement was followed by Their Lordships in

the case of Binay Kumar Singh Vs. State of Bihar: (1997) 1

SCC 283 wherein, it was observed as under:-

“31. …There is no rule of evidence that no conviction

can be based unless a certain minimum number of

witnesses have identified a particular accused as a

member of the unlawful assembly. It is axiomatic that

evidence is not to be counted but only weighed and it is

not the quantity of evidence but the quality that

matters. Even the testimony of one single witness, if

wholly reliable, is sufficient to establish the

identification of an accused as a member of an unlawful

assembly. All the same, when the size of the

unlawful assembly is quite large (as in this case)

and many persons would have witnessed the

incident, it would be a prudent exercise to insist

on at least two reliable witnesses to vouchsafe

the identification of an accused as a participant in

the rioting." (Emphasis supplied)

Facts in the instant case are identical with the aforesaid

cases inasmuch as, there was a very large number of assailants,

i.e., 200-250 and a large number of injured as also two deceased.

Further, applying this very test, i.e, only one or two witnesses

have deposed against them, as many as 12 co-accused person

were acquitted by the learned trial Court itself. Here, we find it to

be profitable to quote the relevant part of the impugned

judgement:-

[2026:RJ-JP:32981-DB] (20 of 30) [CRLA-434/1984]

"bl izdkj vfHk;kstu i{k dh leLr lk{; dks iwjh rjg i<us

ls izFker% lksguyky o vyheqn~nhu ds fo:) dksbZ lk{; ugha gSA

vfHk;qDr jkedj.k ds fo:) dsoy lhrk ,oa odhY;k ds dFku gSa tks

vf/kd fo'oluh; ugha dgs tk ldrs gSa D;ksafd muds dFkuksa dk

leFkZu vU; lk{kh;ksa us ugha fd;k gSA ukjk;.k nkl ds fy;s dsoy

xhrkdqekjh o lhrk dk gh oDrO; gS ftldk leFkZu Hkh vU; lk{kh;ksa

}kjk ugha fd;k x;k gSA lR;ukjk;.k ds fy;s dsoy dkaxzslh;k vkSj

xhrkdqekjh dk gh dFku gSA dkaxzslh;k ds fy;s gekjs iwokZf/kdkjh }kjk

;g uksV fn;k x;k gS fd ;g lk{kh :d :d dj cksy jgk gSA

tcfd lhrk fdlh izdkj lR;ukjk;.k dks tkurh Fkh ;g Li"V ugha

gSA rRi'pkr~ Hkwjk iq= txUukFk yks/kk dk uke dsoy xhrkdqekjh us gh

fy;k gS vkSj vU; lk{khx.k bldk leFkZu ugha djrs gSaA pqUuk ds

fy;s dsoy xhrkdqekj o udhek us gh c;ku fn;k gS fdUrq vCnqy

xQ~Qkj ds fy;s xhrk o rkjkpUn dk dFku gSA rkjkpUn gekjh

lEefr esa fo'oluh; lk{kh gSA lq[knso ds fy;s Hkh rkjkpUn o

xhrkdqekjh oDrO; gSA eksrhjke ds fy;s dsoy ,d lk{kh gSA

ctjaxnkl [kVhd ds fy;s Hkh ,d gh lk{kh xhrk dqekjh gS ftldk

fdlh us leFkZu ugha fd;k gSA ctjaxyky czkge.k ds fy;s dsoy

rkjkpUn dk dFku gS ftldk fdlh vU; us leFkZu ugha fd;k gSA

Hkaoj jsxj ds fy;s Hkh ,d gh lk{kh gS tks ih0MC;w0 5 dkaxzslh;k gS]

ftlds dFku dk leFkZu ugha gSA dwjk ds fy;s ,d lk{kh lhrk

ih0MCY;w0 7 crkrh gS fdUrq mlds dFku dk leFkZu ugha gSA"

Thus, we find that the learned trial Court has acquitted the

co-accused-Ramkaran inasmuch as testimony against him by

Seeta and Vakilya was not corroborated by other witnesses.

Similarly, Satyanarain was acquitted as deposition against him was

only by Kangresia and Geeta Kumari and for Kangresia, it was

observed in the judgement that the earlier Presiding Officer has

noted his demeanour in terms that 'he was speaking haltingly'. It

may be pertinent to observe here that acquittal of the aforesaid

[2026:RJ-JP:32981-DB] (21 of 30) [CRLA-434/1984]

accused persons including the other accused has attained finality

inasmuch as it was not assailed.

On that premise, we do not find it to be prudent to sustain

the conviction of the appellant Bhanwarlal Gurjar relying on the

sole testimony of Kangresia (PW5) which, otherwise also, we have

not found to be wholly reliable and trustworthy.

Uda Gurjar:- So far as Uda Gurjar is concerned, Tarachand

(PW4) did not mention his name in the examination-in-chief. In

his cross-examination, he admitted that the appellant's name was

neither mentioned in the written report (Ex.P66) nor, in his

statement recorded under Section 161 CrPC (Ex.D1). Another

prosecution witness Kangresia (PW5) has named him as one of the

assailants and has stated that Uda inflicted blow to deceased-

Kanhaiya. Geeta Kumari (PW6) has though identified him but,

without levelling any allegation. Seeta (PW7), Nakhima (PW9) and

Kamla (PW10) neither named him in their examination-in-chief

nor, in their cross-examination. Sohni (PW8) has levelled

allegation against Uda of beating her husband-Kanhaiya. Taking a

contrary stand, Bhagchand (PW11) has alleged that he had beaten

Hawalia and as per Vakilya (PW12), Uda was carrying a lathi.

Thus, while, four of the witnesses did not even mention his

name in their deposition, one has only identified him without any

allegation, two have stated him to have caused injury to Kanhaiya

and one to Hawalia. Thus, we do not find any consistency in the

testimony of the witnesses as to whether he inflicted injuries to

the deceased-Kanhaiya or to the deceased-Hawalia. In the

conspectus of aforesaid analysis and in the backdrop of law laid

down in the case of Masalti (supra), we find that it was not safe

[2026:RJ-JP:32981-DB] (22 of 30) [CRLA-434/1984]

for the learned trial Court to have held him guilty of the offence

under Section 302 or in the alternative, under Section 302/149

IPC.

Purshotam:- Tarachand (PW4), though, has dock identified

him but, during the course of his cross-examination, he has stated

that he did not see him at the scene of crime. PW5, PW9 and

PW11 did not name him. Geeta Kumari (PW6) though, claimed to

have identified him in her examination-in-chief but, during the

course of her cross-examination, she has stated that she has

wrongly levelled allegation against him of inflicting injuries. Seeta

(PW7) has stated that he was amongst the person who were

requesting others not to cause any assault. However, upon a Court

question, she has admitted that the matter has been compromised

with the masters but, in our considered view, the learned trial

Court erred in rejecting her entire testimony on the count of it

being a non-compoundable offence as, her position could not have

been worse than that of a hostile witness and her entire testimony

could not have been rejected on this count inasmuch as Vakilya

(PW12) has also stated specifically, in his cross-examination, that

this appellant was one of the villagers who were requesting others

not to attack any person. Thus, her testimony stood corroborated

from the deposition of the PW12.

Their Lordships have, in the case of Dadu @ Ankush and

Another Vs. State of Madhya Pradesh and Another: SLP

(Criminal) No.10759/2024 , while dealing with an identical

issue, held as under:-

"19. It is also important to note the deposition of

PW-4. Though related to the victim and PW-2, he

[2026:RJ-JP:32981-DB] (23 of 30) [CRLA-434/1984]

deposed that the pandal of Ganesh Puja was

overcrowded and peoples’ feet were touching each

other due to which PW-2 felt that A-1 and A-2 had

stepped on PW-2’s feet. This resulted in a scuffle

breaking out between A-1 and A-2 on the one hand and

PW-2 on the other. Though PW-4 was declared hostile

after he made the above statement, he was subjected

to cross-examination by the Public Prosecutor. Notably,

it is in his evidence that it was wrong to suggest that

PW-2 was assaulted by A-1 and A-2. The High Court did

not refer to the evidence of PW-4 simply on the ground

that he had turned hostile, in ignorance of the law

relating to appreciation of the evidence of a witness

who has been declared hostile. A profitable reference

may be made to the decision of this Court in State of

U.P. v. Ramesh Prasad Misra : (1996) 10 SCC 360

wherein it was held that it is settled law that the

evidence of a hostile witness would not be totally

rejected if spoken in favour of either the

prosecution or the accused. It would rather have

to be subjected to closer scrutiny and that portion

of the evidence which is consistent with the case

of the prosecution or defence may be accepted.

The mere rejection of the evidence of PW4 in the

manner aforesaid is contrary to the law laid down by

this Court." (Emphasis supplied)

Thus, in the backdrop of aforesaid precedential law, in our

considered view, the learned trial Court erred in rejecting her

testimony in its entirety.

Sohni (PW8) has alleged Purshotam to have attacked her

husband and to have set the household articles to fire but,

admitted in her cross-examination that these allegations were

absent in her police statement (Ex.D4). Thus, the allegations

[2026:RJ-JP:32981-DB] (24 of 30) [CRLA-434/1984]

levelled by her amount to improvement rendering her testimony

to be unreliable. Similarly, Kamla (PW10) has identified the

appellant-Purshotam as the assailant who had hit her on eye but,

in her cross-examination, she admitted that the allegation did not

exist in her police statement (Ex.D6) rendering her unreliable.

PW12 has stated in his cross-examination, that in h is police

statement (Ex.D7), he did not mention Purshotam's name and it

was recorded by the Investigating Agency on its own. Further, he

has specifically named him as one of the villagers who were trying

to save them.

From the conspectus of aforesaid analysis, we do not find

evidence of any of the two witnesses to be consistent to show his

involvement as one of the assailants rather, as per the PW7 and

the PW12, he was amongst the villagers who were trying to save

them. In view thereof, we are of the considered view that findings

of the learned trial Court qua him are not sustainable in the eyes

of law.

Gheesa Lal:- Tarachand, in his cross-examination, has

stated not to have seen Gheesa Lal at the scene of crime. He was

not named by the PW5, PW8, PW9, PW10 and PW11 at all. Only

Geeta Kumari (PW6) has identified him. Seeta (PW7) and Vakilya

(PW12) have stated him to be one of the saviours and upon Court

question, the PW7 has stated to have entered into compromise

only with the masters and indisputably, Gheesa Lal was not one of

them. Therefore, we have no reason to doubt her testimony. On

that premise, we do not find it prudent to uphold his conviction

[2026:RJ-JP:32981-DB] (25 of 30) [CRLA-434/1984]

based on the sole testimony of PW6 wherein also, she has only

identified him without any allegation.

Polu:- So far as Polu is concerned, although, Tarachand

(PW4) has alleged, in his cross-examination, that he was one of

the assailants to cause injuries to him with lathi but, admitted that

his name did not figure either in the written report lodged by him

(Ex.P66) or in his police statement (Ex.D1). Kangresia (PW5) has

alleged him to be one of the assailants with a lathi. Geeta Kumari

(PW6) has levelled allegation against Polu of hitting her

grandfather-Hawalia with lathi but, in her cross-examination, she

also admitted that his name did not figure in her Section 161 CrPC

statement (Ex.P67) and therefore, her allegation amounts to

improvement. Similarly, Seeta (PW7) has alleged that Polu had hit

her husband and has also set fire to the rice but, admitted, during

her cross-examination, that these allegations were absent in her

police statement (Ex.D3). PW8, PW9, PW10 and PW12 have

levelled no allegation against Polu. Bhagchand (PW11) has alleged

that Polu hit him. However, as per his injury report-Ex.P59, which

was proved by Dr. Vimal Kumar Jain (PW15), there was no

apparent injury on his body except complaint of pain on his right

hand. Therefore, his testimony is not found to be reliable.

Thus, we notice that while, PW4, PW6 and PW7 has levelled

allegation against him of inflicting injuries with a lathi but, they all

have admitted, in their cross-examination, that this allegation was

absent in their police statement. Thus, we find the same to be the

material improvement. In view thereof, we are left with testimony

only of Kangresia (PW5). Applying the test approved by the

[2026:RJ-JP:32981-DB] (26 of 30) [CRLA-434/1984]

Constitution Bench in the case of Masalti (supra), we do not find

it to be safe to uphold the findings of his conviction based on his

testimony alone. Even otherwise, there has been no recovery of

any lathi from him.

Abdul Gaffar:- Although, Tarachand has identified him in his

examination-in-chief but, in his cross-examination, he has claimed

not to have seen him at the scene of crime. Further, he has

claimed that name of the accused mentioned in his written report

(Ex.P66) from ‘क’ to ‘ट’ including Abdul Gaffar’s name were

mentioned wrongly. PW5, PW7, PW9, PW10 and PW11 have not

named him. Vakilya (PW12) has not levelled any allegation against

him in his examination-in-chief and, in his cross-examination, he

has claimed him to be one of the villagers who w ere dissuading

the other villagers not to harm them. Thus, we are left with

testimony of Geeta Kumari (PW6) who has claimed to have

identified him but, without any allegation and of Sohni (PW8), who

has levelled no allegation against him of subjecting the household

goods to fire in her police statement (Ex.D4). In the backdrop of

aforesaid evidence, we are not able to persuade ourselves to

concur with the finding of the learned trial Court of his conviction.

Abdul Salaam:- Tarachand, again, during his cross-

examination as PW4, has claimed not to have seen the appellant-

Abdul Salaam at the scene of crime. PW5 as well as PW6 have

claimed his presence as one of the assailants. However, PW12,

during his cross-examination, has claimed him to be one of the

villagers who were requesting other villagers not to attack them.

Rest of the prosecution witnesses namely Seeta, Sohni, Nakhima,

[2026:RJ-JP:32981-DB] (27 of 30) [CRLA-434/1984]

Kamla and Bhagchand have not named him. In view thereof,

while, two prosecution witnesses, i.e., the PW5 and the PW6 have

claimed him to be one of the assailants, one witness (PW4) has

denied his presence at the scene of crime and the remaining

prosecution witness, i.e., PW12 has stated specifically him to be

one of the saviours. In view of the aforesaid contradictory

testimony, we do not find it to be prudent to uphold the findings

of his conviction based on the testimony PW5 and PW6 which

stands shattered in view of the testimony of one of the injured eye

witnesses namely Tarachand and the eye witness namely Vakilya.

Mohan Mali:- Tarachand as also Sohni and Kamla did not

name him during the course of their deposition.

Kangresia (PW5) has alleged him to be one of the assailants.

Although, Geeta Kumari has identified Mohan as one of the

accused but, without specifying as to which Mohan, i.e., Mohan

Mali or Mohan Raigar. It may be worthy to mention here that two

Mohan were put to trial, i.e., Mohan Mali and Mohan Raigar. Seeta

(PW7) has levelled allegation against both Mohan of inflicting

injuries to her but, during the course of her cross-examination,

she admitted that she was ignorant as to why their name did not

figure in her police statement (Ex.D3) rendering her testimony to

be unreliable. PW9, though, has levelled allegation against Mohan

but, in her cross-examination, she admitted that his name did not

figure in her police statement (Ex.D5). Bhagchand (PW11) has

levelled allegation against Mohan without specifying which Mohan.

PW12 has levelled allegation against Mohan Raigar in his

examination-in-chief; however, stating specifically, during his

[2026:RJ-JP:32981-DB] (28 of 30) [CRLA-434/1984]

cross-examination, that he did not name the present appellant-

Mohan Mali as one of the assailants.

Thus, while, three prosecution witnesses did not name him in

their deposition, PW6, PW9 and PW11 ha ve levelled allegation

against ‘Mohan’ without specifying as to whether he was the

present appellant-Mohan Mali or the co-accused Mohan Raigar who

has expired during pendency of the appeal . The remaining

prosecution witnesses, i.e., PW5 and PW7, though , have levelled

allegation against the appellant-Mohan Mali as one of the

assailants but, the PW7 has admitted, during her cross-

examination, that his name did not figure in her Section 161 CrPC

statement (Ex.D3). Therefore, we are left with the sole testimony

of the PW5. However, applying the test adopted in the case of

Masalti (supra), we do not find it to be safe to sustain the

findings of conviction of Mohan Mali relying upon the sole

testimony of the PW5. Further, there was no recovery of the

weapon of offence, i.e., lathi from him.

Sukhdeva:- Although, Tarachand has claimed him to have

come to his house at about 5:00 am on the fateful day but, during

his cross-examination, he has categorically stated him not to have

seen at the scene of crime. PW8, PW9, PW10, PW11 and PW12 did

not name him. Kangresia (PW5) has alleged him to have come

only at 5:00 am with absence of allegation against him of coming

with other villagers at 7:00 am. PW6 has identified him but, with

no allegation. The remaining prosecution witness Seeta (PW7),

has claimed him to be one of the saviours rather than being one of

the members of the unlawful assembly. Thus, we find absence of

[2026:RJ-JP:32981-DB] (29 of 30) [CRLA-434/1984]

any allegation against him to be one of the assailants rather, PW7

has claimed him to be one of the villagers who w ere preventing

others from assaulting them. On that premise, we are left with the

sole testimony of PW6, who has only identified him with no

allegation. Further, no recovery of any weapon of offence was

effected from him. In view thereof, we are not able to persuade

ourselves to uphold the finding of the learned trial Court against

him.

In view of the aforesaid analysis, we are not convinced that

the prosecution was able to establish, beyond a reasonable doubt,

that the appellants were guilty of the offence either under Section

302 or under Section 302 read with Section 149 IPC and they are

entitled for the benefit of doubt. Further, on that premise, we do

not find it necessary and expedient to dwell on the issue as to

whether conviction by the learned trial Court in alternative section

without complying with the condition precedent as provided under

Section 354(2) CrPC is sustainable or not.

The reasonings assigned by this Court while setting aside the

conviction of the appellants under Section 302 or in the

alternative, under Section 302/149 IPC , apply with full force

equally so far as their conviction under Sections 448, 436/149 and

323/149 IPC is concerned and the same is also liable to be set

aside. Insofar as their conviction under Section 436/149 is

concerned, there is one more reason for not concurring with the

conclusion of the learned trial Court. While recording their

conviction under these provisions, the learned trial Court has not

recorded a whisper of finding that they were guilty of causing

[2026:RJ-JP:32981-DB] (30 of 30) [CRLA-434/1984]

mischief by setting fire to destroy any building used by the victims

as residents or the place of worship or the human dwelling or for

custody of the property in absence whereof, the conviction is not

found to be sustainable.

The upshot of the aforesaid discussion is that the appeal

deserves to be allowed and is hereby allowed. The judgement

impugned dated 17.09.1984 passed by the learned Sessions

Judge, Tonk in Sessions Case No.40/82 is quashed and set aside.

The appellants are acquitted of the charges framed against them.

Since, all the appellants are already on bail, their bail bond stands

discharged. The appellants are set at liberty forthwith if not

required to be detained in any other case.

In view of the provisions of Section 437-A CrPC (Section 481

Bharatiya Nagarik Suraksha Sanhita, 2023), the appellants namely

1. Bhanwarlal Gurjar, 2. Uda Gurjar, 3. Mohan, 4. Polu

Raigar, 5. Abdul Salaam, 6. Abdul Gaffar and 7. Sukhdeva

are directed to furnish a personal bond in the sum of Rs.25,000/-

each and a surety in the like amount within four weeks before the

Registrar (Judl.) of this Court which shall be effective for a period

of six months with the stipulation that in the event of Special

Leave Petition being filed against the judgement or on grant of

leave, the appellants aforesaid, on receipt of notice thereof, shall

appear before the Hon’ble Supreme Court.

(PRAMIL KUMAR MATHUR),J (MAHENDAR KUMAR GOYAL),J

1/PRAGATI