1 2025:CGHC:41777 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 249 of 2004 Reserved on judgment on 17/03/2025 Judgment delivered on 19/08/2025 1 - Ajay Arora S/o. Karamchand Arora Aged About 32 Years R/o. Manendragarh, Tahsil - Manendragarh, District - Korea (C.G.) 2 - Gurubaksh Singh Chhabda S/o. Late Rawel Singh, Sikkh, R/o. Manendragarh, Tahsil - Manendragarh, District - Korea (C.G.) 3 - Surendra Sindwani Alias Lavli S/o. Gulshanlal Sindwani Aged About 32 Years R/o. Manendragarh, Tahsil - Manendragarh, District - Korea (C.G.) 4 - Gurjit Singh Alias Tingu S/o. Ranjit Singh Aged About 32 Years R/o. Manendragarh, Tahsil - Manendragarh, District - Korea (C.G.) 5 - Jasvir Singh Raina S/o. Ranjit Singh Aged About 36 Years R/o. Manendragarh, Tahsil - Manendragarh, District - Korea (C.G.) 6 - Harun Menon S/o. Abdul Ajij Aged About 38 Years R/o. Manendragarh, Tahsil - Manendragarh, District - Korea (C.G.) 7 - Narendra Singh Alias Banti S/o. Pritam Singh Aged About 28 Years R/o. Manendragarh, Tahsil - Manendragarh, District - Korea (C.G.) 8 - Harjit Singh Alias Titu S/o. Rawel Singh Aged About 35 Years R/o. Manendragarh, Tahsil - Manendragarh, District - Korea (C.G.) ... Appellant(s) versus 1 - State Of Chhattisgarh Through Police Station - Manendragarh, Tahsil Manendragarh District - Koriya (C.G.) ... Respondent(s) (Cause title taken from Case Information System) For Appellants No.1 and 8 : Mr. Surendra Singh, Senior Advocate along with Mr. Amiya Bhushan, Md. Zakir Anam Shah and Abhishek Gupta, Advocates VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.08.19 18:51:42 +0530 2 For Appellant No.2 : Mr. Arvind Shrivastava, Advocate For Appellant No.3 : Mr. Raghvendra Pradhan, Advocate and Mr. Sanjay Sindwani, Advocate For Appellants No.4, 5 and 7 : Mr. Shakti Raj Sinha, Advocate For Appellant No.6 : Mr. Y.C. Sharma, Senior Advocate along with Ms. Pooja Loniya, Advocate For Respondent/State : Mr. Jitendra Shrivastava, Govt. Advocate along with R.C.S. Deo, Penal Lawyer Hon'ble Shri Justice Ravindra Kumar Agrawal C.A.V. Judgment 1. The present criminal appeal has been filed by the appellants under Section 374(2) of the Code of Criminal Procedure, 1973 against the impugned judgment of conviction and sentence dated 03.03.2004, passed by learned Additional Sessions Judge, Manendragarh, District Korea (C.G.), in Sessions Case No. 280 of 2003, whereby the appellants have been convicted and sentenced in the following manner:- Conviction Sentence Appellant No.2 Gurbaksh Singh U/s. 147 of the IPC R.I. for 01 year U/s. 148 of the IPC R.I. for 01 year U/s. 324 of the IPC R.I. for 01 year U/s. 307 of the IPC R.I. for 07 years and fine of Rs. 5000/-, in default of payment of fine additional R.I. for 05 months Appellant No.8 Harjit Singh Alias Titu U/s. 147 of the IPC R.I. for 01 year U/s. 148 of the IPC R.I. for 01 year U/s. 324 of the IPC R.I. for 01 year 3 U/s. 307 of the IPC R.I. for 07 years and fine of Rs. 5000/-, in default of payment of fine additional R.I. for 05 months Other appellants Appellant No.1, Ajay Arora, Appellant No.3, Surendra Sindwani, Appellant No.4 Gurjit Singh, Appellant No.5 Jasvir Singh Raina, Appellant No.6, Harun Menon, and Appellant No.7 Narendra Singh @ Banti U/s. 147 of the IPC R.I. for 01 year U/s. 307/149 of the IPC R.I. for 07 years and fine of Rs. 5000/-, in default of payment of fine additional R.I. for 05 months All sentences are directed to run concurrently. Case of the prosecution:- 2. The brief facts of the case are that, the injured Shiv Kumar Gupta/PW-11 was running a betel shop at Hazari Chowk, Manendragarh and his nephew Rajaram was also running a betel shop near Fauwara Chowk. The land, on which the shop of Rajaram was situated, belongs to the accused Harjit Singh. There was an agreement between Shiv Kumar Gupta/PW-11 and accused Harjit Singh for sale of the land of shop of Rajaram for the total consideration of Rs. 2.55 lakhs, out of which Rs. 55,000/- was given in advance. After 3-4 days of the agreement, Shiv Kumar Gupta/PW- 11 refused to take the land of the shop of the accused Harjit Singh and asked to refund of the advance amount, on which some altercation took place between them. On 03.04.2002, at about 11:15 4 PM, when the injured Shiv Kumar Gupta/PW-11 was standing near his betel shop, at that time, the accused persons Harjit Singh Chhabra, Harun Menon, Ajay Arora, Gurbaksh Singh Chhabra, Surendra Sindwani @ Lovely, Narendra Singh @ Banti, Jasvir Singh Raina and Gurjeet Singh @ Tingu came there by a jeep. Harjit Singh was having 12 bore double barrel gun and Gurbaksh Singh was having revolver and sword. The other accused persons were having iron rod, lathi and danda. It is alleged that Harjit Singh Chhabra made a gunshot fire on the injured Shiv Kumar Gupta/PW-11, by which he received gunshot injury on his right hand and right side of chest. At the same time, Gurbaksh Singh has also made fire by his revolver and also gave a sword blow on his head. By the gunshot fire made by Harjit Singh and Gurbaksh Singh, the vegetable seller Ramesh Kumar Rathore/PW-2, Lalman/PW-3, Bhagwan Das/PW-4, Budhiya Bai/PW-5 and Kamlesh have also injured. The accused persons were assaulting the persons, who present there on the spot by chasing them. The incident was witnessed by Jawahar Lal Jain/PW- 14, Gopal Gupta/PW-15, Chhotelal Gupta/PW-16 and Vijay Kesharwani/PW-24. The injured Shiv Kumar Gupta/PW-11 was taken to his house by the witnesses, from where the injured Shiv Kumar Gupta/PW-11 had made a telephonic call to his friend Ramesh Singh/PW-1 and informed him that he received gunshot injury and thereafter, Ramesh Singh/PW-1 gave a telephonic information to the police station Manendragarh about the incident. Rajendra Prasad Soni/PW-8 called his friend Rajesh Kumar Jaiswal/PW-17 by making telephonic call and then, they took the injured Shiv Kumar Gupta/PW-11 to Central Hospital, Manendragarh. 5 On 03.04.2002, at about 23:55 PM, the Station House Officer, Police Station Manendragarh inquired about the incident from the injured Shiv Kumar Gupta/PW-11 and recorded Dehati Nalishi (exhibit P-15) and sent the same to the police station for registration of the FIR. The FIR (exhibit P-18) was registered on 04.04.2002, at about 00.15 AM, against 07 accused persons for the offence under Sections 147, 148, 149 and 307 of IPC. The injured persons were treated at Manendragarh Hospital. 3. Spot Map (exhibit P-16) was prepared by the police. The accused persons were arrested and the memorandum statement (exhibit P- 19) of the accused Surendra Sindwani, exhibit P-20 of the accused Harun Menon, exhibit P-21 of the accused Ajay Arora, exhibit P-26 of the accused Harjit Singh Chhabra @ Titu were recorded and based on their memorandum statement, one bamboo club has been seized from the accused Surendra Sindwani vide seizure memo (exhibit P- 22), one wooden club from the accused Harun Menon vide seizure memo (exhibit P-23), one bamboo club from the accused Ajay Arora vide seizure memo (exhibit P-24) and one 12 bore double barrel gun and one gun license has been seized from the accused Harjit Singh @ Titu vide seizure memo (exhibit P-12). The bedhead ticket and discharge ticket of Avinash Gupta (exhibit P-1 and P-9), Ramesh Kumar Rathore (exhibit P-3 and P-6), Lalman Rathore (exhibit P-4 and P-7), Bhagwan Das (exhibit P-5 and P-8) and bedhead ticket of Shiv Kumar Gupta (exhibit P-2), Kamlesh Kumar (exhibit P-10) and Budhiya Bai (exhibit P-11) have been seized. The X-ray plate (exhibit P-27) of the injured Shiv Kumar Gupta/PW-11 has also been seized. One shirt and full pant has also been seized from injured Shiv Kumar 6 Gupta/PW-11 vide seizure memo (exhibit P-13). The 12 bore double barrel gun seized from the accused Harjit Singh, was sent for its examination to the Armorer at Reserved Police Center, Baikunthpur, from where report (exhibit P-14) was received and it was reported that the seized gun is in running condition and fire can be made from it. The sheath of the sword has been seized from the spot vide seizure memo (exhibit P-25). Statement of the witnesses under Section 161 of CRPC have been recorded and after completion of usual investigation, charge sheet was filed against the appellants for the offence under Sections 147, 148, 149, 307 of IPC and Section 27 of Arms Act before the learned Judicial Magistrate First Class, Manendragarh. The case was committed to the Court of learned Sessions Judge, Surguja, place Ambikapur from where the same was transferred to the learned trial Court for its trial. Charges framed by the trial Court:- 4. The learned trial Court has framed charge against the appellants for the offence under Sections 147, 148, 307/149 of IPC. The accused persons denied the charge and claimed trial. 5. In order to prove the charge against the accused persons, the prosecution has examined as many as 24 witnesses. Statements of the accused persons under Section 313 of the CRPC have also been recorded, in which they denied the circumstances appears against them, pleaded innocence and have submitted that they have been falsely implicated in the offence. One defence witness Balram Choudhari/DW-1 has been examined by the accused persons. 7 Judgment of the trial Court:- 6. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the accused persons and sentenced them, as mentioned in the earlier part of the judgment, hence this appeal. Submissions of the counsel of the respective appellants:- 7. Mr. Surendra Singh, Senior Advocate, learned counsel for the appellants No. 1 and 8 would submit that, the prosecution has failed to prove its case beyond reasonable doubt. There are material discrepancies and inconsistencies in the evidence of prosecution witnesses, which cannot be made basis to convict him in the offence in question. In the Dehati Nalishi (exhibit P-15) and admission ticket of the injured Shiv Kumar Gupta/PW-11, there is no mention of the name of assailant. There is allegation that the injured was being assaulted by gunshot fire, but there is no entry or exit injury found on his body, even there is no pallets were recovered from his body or from any other place about gunshot injury. It is also alleged that some other vegetable vendors were also injured, but none of them have sustained either lathi or gunshot injury. He would further submit that the injured Shiv Kumar Gupta/PW-11 is also alleged to be assaulted by sword on his head, but there is no fracture found on his skull. The alleged eyewitnesses have not supported the prosecution’s case. He would further submit that the incident has been perpetrated by two unknown assailants, who covered their face by mask and their identity has not been established. The so-called eyewitnesses are belonging to the same group named as ‘Pragati 8 Manch’ and they are the interested witnesses. It is further submitted by him that, jeep in which the accused persons were said to have come on the spot, has not been seized. He would further submit that, even if the involvement of the present appellants No. 1 and 8 in the offence is established, their offence does not travel beyond the scope of Section 324 of IPC, because it was hired through a blank cartridge, which only makes noise of fire due to hot gas expelled at the time of fire and no actual pallets coming out from it. There is no intention to commit murder of the injured Shiv Kumar Gupta/PW-11 and only to intimidate him, the said act was done. The injury found on the body of the injured Shiv Kumar Gupta/PW-11 are simple in nature, and therefore, no offence under Section 307 of IPC is made out against them. He would rely upon the judgment passed by the Hon'ble Supreme Court in the matter of “Javed Masood and another v. State of Rajasthan” AIR 2010 SC 979, “Virendra v. State of Madhya Pradesh” AIR 2022 SC 3373, “Budhwa @ Ramcharan and others v. State of Madhya Pradesh” AIR 1991 SC 4, “Jadu Yadav and others v. State of Bihar” AIR 1994 SC 957, “Satguru Singh v. State of Punjab” AIR 1995 SC 2449, “Rehmat v. State of Haryana” AIR 1997 SC 1526, “Allarakha Habib Memon and others v. State of Gujarat” 2024 (9) SCC 546 and “Ramdas v. State of Maharashtra” AIR 1977 SC 1164. 8. Mr. Arvind Shrivastava, learned counsel appearing for appellant No.2 Gurbaksh Singh Chhabra, apart from the submissions made by learned counsel for the appellants No. 1 and 8, submits that the Dehati Nalishi was lodged on 11:55 PM, whereas the injured Shiv Kumar Gupta/PW-11 was admitted in the hospital at 12:05 AM, which 9 clearly shows that the report is anti-time and anti-dated. The Dehati Nalishi (exhibit P-15) cannot be considered to FIR, because the Ramesh Singh/PW-1 had already informed the police through telephone, which has been recorded in Rojnamcha Sanha (exhibit D- 10) No. 174, at 11:30 PM. There is no investigation nor any charge sheet has been filed on the said report made by Ramesh Singh/PW- 1, and thus, the proceeding initiated on the basis of subsequent FIR is nullity. He would further submit that there is no sufficient description in the charge framed against the present appellant. There are material discrepancies in the time of incident in the evidence of PW-2, PW-3, PW-4, PW-5, PW-18 and PW-19 and they have not declared hostile, therefore, there is inconsistencies in the evidence of these witnesses. It also came on record that the police have also recorded the dying declaration of the injured Shiv Kumar Gupta/PW- 11, but the same has not been filed along with the charge sheet. He would also submit that the medical evidence, alleged injury found on the body of the injured and the evidence of the witnesses are also not believable, because there are discrepancies in their evidences. It would not be possible that by a single gunshot fire, number of persons may be injured, when the fire was allegedly made by the contact range. No pallet has been recovered by the police. There is no motive against the present appellant Gurbaksh Singh to commit his murder or causing injuries to the injured Shiv Kumar Gupta/PW- 11. No weapon of offence has been seized from the appellant Gurbaksh Singh. The incriminating circumstances have also not put before the appellant Gurbaksh Singh for its explanation, which is a vital defect in the prosecution case, therefore, in absence of any clinching and cogent evidence against the appellant Gurbaksh Singh, 10 his conviction and sentence is bad in law and liable to be set-aside. He would rely upon the judgment passed by Hon'ble Supreme Court in the matter of “Superintendent of Police, CBI and others v. Tapan Kumar Singh” 2003 (6) SCC 175, “T.T. Antony v. State of Kerala and others” 2001 (6) SCC 181, “Allarakha Habib Memon and others v. State of Gujarat” 2024 (9) SCC 546, “State of Rajasthan v. Surendra Singh Rathore” 2025 INSC 248, “Mer Vas Deva v. State of Gujarat” AIR 1965 Gujarat 143, “Vijay Singh v. State of M.P.” 2005 Cr.L.J. 299, “Sunil Kundu and another v. State of Jharkhand” 2013 (4) SCC 422, “Javed Masood and another v. State of Rajasthan” AIR 2010 SC 979, “Mukhtiar Ahmad Ansari v. State (NCT of Delhi)” 2005 (5) SCC 258. 9. Mr. Y.C. Sharma, Senior Advocate, learned counsel for the appellant No.6 would submit that an omnibus allegation has been made against the appellant No.6 and no specific role has been described by the witnesses. The injured Shiv Kumar Gupta/PW-11 has not disclosed the name of appellant No.6 as assailant and the weapon of offence has also not been disclosed that the present appellant has assaulted by lathi. The 161 CRPC statement of the injured Shiv Kumar Gupta/PW-11 has been recorded after about 02 months after the date of incident. The witnesses are the interested witnesses, who belongs to a same group. When the injured Shiv Kumar Gupta/PW- 11 was admitted in the hospital, he was being examined by Dr. C.B. Prasad/PW-6, who disclosed his health condition, but the injured Shiv Kumar Gupta/PW-11 has not named the assailants. On the memorandum statement of appellant No.6, a lathi has been seized from him, but there is no injury from the lathi found on the body of the 11 injured person. There is no specific role of assault alleged against the appellant No.6, and therefore, he is entitled for benefit of doubt and acquittal from the alleged offence. He relied upon the judgment of Hon'ble Supreme Court reported in “Harbeer Singh v. Sheeshpal and others” 2016 (16) SCC 418. 10. Mr. Shakti Raj Sinha, learned counsel appearing for the appellants No. 4, 5 and 7 adopted the submissions made by the Senior Advocate Mr. Surendra Singh and further submitted that the appellants No. 4, 5 and 7 are not named in Dehati Nalishi (exhibit P- 15), no weapon has been seized from him and there is no over tact of these appellants alleged by the witnesses. No test identification parade has been conducted by the prosecution to identify the assailants including the present appellants. Even no motive has been proved against the present appellants, therefore, in absence of any clinching and cogent evidence, these appellants cannot be convicted for the alleged offence and they are also entitled for their acquittal. 11. Mr. Raghvendra Pradhan and Mr. Sanjay Sindwani, learned counsel appearing for the appellant No.3 would also adopt the arguments advanced by learned counsels appearing for the other appellants and would further submit that, there are material omissions and contradictions in the police statement as well as in the court’s statement of the witnesses. No TIP was conducted to identify the appellant No.3 that he also involved in the offence in question. Even the appellant No.3 has not been named before the doctor, who treated the injured Shiv Kumar Gupta/PW-11. Although a lathi has been seized from the appellant No.3, but no lathi injury found on the body of the injured Shiv Kumar Gupta/PW-11 or other injured 12 persons. He would also submit that all the witnesses are interested witnesses and they belong to the same group named as ‘Pragati Manch’. There is lack of sufficient evidence against the appellant No.3 and he is also entitled for acquittal. Submissions of the State counsel:- 12. On the other hand, learned counsel appearing for the State would submit that, the prosecution has proved its case beyond reasonable doubt and the involvement of the appellants in the offence in question has been duly proved by the witnesses including the injured witness. The appellants have formed an unlawful assembly having common object to commit murder of the injured Shiv Kumar Gupta/PW-11 and in furtherance thereof, they came together on the spot by a jeep, armed with lathi, sword and gun, which are sufficient to show their intention to commit murder of the deceased. The motive has also been proved as the appellant No.8 Harjit Singh was having land dispute with the injured Shiv Kumar Gupta/PW-11 and he demanded his money back, which has been given to the appellant No.8 as advance towards sale agreement of the land. Prompt report has been lodged to the police. The injured Shiv Kumar Gupta/PW-11 received grievous gunshot injury on his body, which has been proved by the doctors, who treated him and others have received simple injuries. But for minor omissions or contradictions, the evidence of prosecution witnesses is reliable to convict them in the offence in question. The 12-bore gun has been seized from the appellant No.8 Harjit Singh and lathies have been seized from appellants Ajay, Surendra and Harun. The appellants have been identified by the witnesses, who were present on the spot and therefore, there is no 13 need to conduct TIP of the accused persons. The appellants were the member of unlawful assembly, shared the common object to commit murder of the injured Shiv Kumar Gupta/PW-11 and in furtherance thereof, gunshot fire has been made upon him and also assaulted by the sword and therefore, considering the evidence available on record, they have been convicted by the learned trial Court, which are justified and there is no need to interfere in the impugned judgment of conviction and sentence, and their appeal is liable to be dismissed. 13. I have heard learned counsel for the parties and perused the record of the learned trial Court with utmost circumspection. Evidence of the witnesses:- 14. PW-11 Shiv Kumar Gupta is the injured in the present case. He stated in his evidence that he identified the accused persons. On 03.04.2002, at about 11:00 PM, after taking his dinner he had gone to his shop at Gandhi Chowk, Manendragarh. Nearby his shop, the vegetable market was running and he also standing there. Chhotelal Gupta, Jawaharlal, Rajendra Soni and Vijay Kesharwani were also present in certain distance. At that time, a jeep came from station road side and stop about four paces from him. Harjit Chhabra gets down from the jeep along with double barrel gun and Gurbaksh also got down from the jeep having sword in one hand and a gun in his other hand. Surendra Sindwani, Jasvir Singh Raina and Banti Raina were having danda in their hands, Tingu Raina was having rod and Ajay Arora was not having any weapon. All of them have surrounded him from all corners and Harjit Singh Chhabra fired a gunshot from 14 his double barrel gun on the contact range by saying that he is demanding money from him and he will kill him. He received gunshot injury on right arm and right side of chest. Gurbaksh Singh assaulted him on his head by sword and then he fell down. All other accused persons exhorted them to kill him. When he fell down, Surendra Sindwani, Tingu, Jasvir Singh Raina, Banti and Gurbaksh started assaulting the vegetable vendors. After felling down, he heard another sound of gunshot fire and then Sindwani said that work is over and let be fled away, and thereafter all the accused persons ran away towards Ram Mandir by the said jeep. After running away the accused persons, the witnesses Jawaharlal, Chhotelal and Gopal came to him. They were scared and they took him to the house of Rajendra Soni. He informed him that Harjit Singh Chhabra has made gunshot fire and Gurbaksh assaulted him by sword. On his instance and from the telephone of Rajendra Soni, he informed about the incident to his friend Ramesh Singh that Harjit Singh Chhabra assaulted him by gun and Gurbaksh assaulted him by sword. At that time, the phone call was disconnected. Rajendra has called Rajesh Jaiswal, who brought his car and took him to Central Hospital. On the entry gate of Central Hospital, Basant and Ashok Agrawal also met him. Basant was also received gunshot injury and they have been taken to casualty ward of the hospital. He informed about his injuries to the doctor and at the same moment, Maravi (T.I.) also came there. He got it recorded in writing and obtained his signature. Another officer in civil dress came there, he also inquired about the incident. He remained hospitalized for about 10 days. 15 He further stated that 3-4 days back from the date of incident, there was a negotiation to sell the land of his betel shop of Fauwara Chowk and out of total consideration of Rs. 2.55 lakhs, he had given Rs. 55,000/- as an advance. At the morning hour on the date of incident, he refused to get the land purchased and asked to refund his advance amount from the accused Titu @ Harjit Singh. He was not willing to refund his advance amount and altercation took place there. On that issue, the incident occurred in the night. In cross-examination, he admitted that Jawaharlal Jain, Gopal Gupta, Rajendra Soni and Vijay Kesharwani are his friends and he is well acquainted with them. All the four persons took him to casualty ward. He did not know as to Basant and Ashok have admitted him to the hospital. After inquiry made from him by the Maravi (T.I.) in the hospital, another statement was recorded after about 1 ½ months. He admitted that the vegetable market is situated at opposite of Hazari Hotel. He informed the police in his report (exhibit P-15) that he was standing near Hazari Hotel and vegetable market and if it is not there, he could not tell the reason. He also informed the police about presence Jawaharlal, Chhotelal, Rajendra Soni and Vijay Kesharwani and if it is not there in his report (exhibit P-15), he could not tell the reason. He is also well acquainted with Ramesh Singh, who is an Advocate at Manendragarh for 10-15 years. He disclosed before the T.I. that he informed the incident to Ramesh Singh through telephone and assault made by Titu by gun and Gurbaksh by sword. If it is not there in the report (exhibit P-15), he could not tell the reason. He further stated that Vijay Kesharwani was present on the spot. He has not made any conversation with Basant, because his 16 condition was very bad. Though he was not unconscious, but he was having much pain and weakening gradually. He himself informed Ramesh Singh that Titu @ Harjit Singh has assaulted him by a gun and Gurbaksh Singh assaulted him by sword. Due to disconnection of phone call, he could not named the other accused persons. At the time, when T.I. Maravi inquired about the incident, he was not in good condition and not able to listen. At the time of incident, he received injury from gunshot, which was fired by putting the barrel of the gun on his chest. When he received injury, only one shot was fired and he was feeling burning sensation. He did not know, whether any pallets were there or not. He denied that the person, who made gunshot fire were covered their faces by cloths. He also denied in his cross- examination that till he was being taken to hospital, he did not know about the assailants. He admitted that he is a member of Pragati Manch. Jawaharlal Jain, Chhotelal Gupta, Rajendra Soni, Rajesh Jaiswal and Vijay Kesharwani were also the members of Pragati Manch. The fire was made upon him by double barrel gun and sword blow. He fell down from the sword blow inflicted on his head. In the report (exhibit P-15), Gurbaksh has fired by revolver is wrongly mentioned. Gurbaksh was having sword in his right hand and revolver in his left hand. He further denied that he disclosed the names of the accused persons on 12.06.2002. He admitted that no test identification parade was conducted by the police. Sindwani had said that work is over and let fled away, has been informed by him to the police, and if it is not there in report (exhibit P-15), he could not tell the reason. He disclosed the name of Surendra Sindwani, at the time of recording 17 Dehati Nalishi (exhibit P-15) and if it is not there, he could not tell the reason. He explained that Lovely is Surendra Sindwani is there. He also disclosed the name of Tingu Raina and if it is not there in his report (exhibit P-15), he could not tell the reason. 15. PW-8 Rajendra Prasad Soni is the witness, in whose house the injured Shiv Kumar Gupta/PW-11 was firstly taken by the witnesses and from whose house, they made telephonic calls to others. He stated in his evidence that on the date of incident at about 11:00- 11:30 PM, Jawahar Jain, Chhotelal Gupta and Gopal Gupta took the injured Shiv Kumar Gupta/PW-11 to his house. Shiv Gupta was having injuries on his head, hand and chest. On being asked, Shiv Gupta informed him that Titu made gunshot fire and Gurbaksh assaulted by sword to him. He immediately made a telephonic call to Rajesh Jaiswal and called his vehicle. After about 5-10 minutes, Rajesh came there with his vehicle and then they took the injured Shiv Kumar Gupta/PW-11 to the hospital. The injured Shiv Kumar Gupta/PW-11 has also informed about the incident to Ramesh Singh, Advocate. On the next day, a double barrel gun and its license was seized from Harjit Singh vide seizure memo (exhibit P-12). In cross- examination, he stated that the police have inquired him on 04.04.2002 and he disclosed the entire incident to the police. He also admitted that, he along with Jawaharlal Jain, Rajesh Jaiswal, Vijay Kesharwani, Shiv Gupta and Chhotelal Gupta are the members of Pragati Manch. He himself has not informed Ramesh Singh about the assault made by Titu and Gurbaksh Singh, because he was also in hurry. He informed to the police in his police statement (exhibit D- 4) that on the date of incident at about 11:00-11:30 PM, Jawahar, 18 Chhotelal and Gopal took the injured Shiv Kumar Gupta/PW-11 to his house and informed that Titu and Gurbaksh caused injury to him. He has not informed Rajesh Jaiswal that Titu and Gurbaksh caused injury to Shiv Gupta. He met with Ramesh Singh Advocate at hospital, but there is no conversation about the name of assailants. He further stated that if the name of Titu and Gurbaksh Singh as assailants is not there in the police statement (exhibit D-4), he could not tell the reason. He could not remember as to whether Shiv Gupta has informed Rajesh that Titu has assaulted him by gunshot and Gurbaksh assaulted him by sword. From his cross-examination, it reveals that he is not the eyewitness to the incident, but he has been informed about the incident by Shiv Gupta. Injured Shiv Gupta that he was being assaulted by Titu and Gurbaksh Singh. 16. PW-9, Lallu Lal Gupta, is the witness of seizure memo (exhibit P-13) from the injured Shiv Gupta and his shirt and pant have been seized. 17. PW-10, Manuel Kerketta, is the head constable, who examined the 12 bore double barrel gun and after its examination, he found that the said gun was in working condition, but he could not tell as to whether, before his examination, any fire was made from it or not. His report is (exhibit P-14). In cross-examination, he stated that he did armorer course, but has not studied ballistic science. He examined the trigger of the gun, but has not tested by firing. He admitted that he examined the gun on 26.06.2002 and gave his report on 23.09.2002. 18. PW-12, J.S. Maravi, Sub-Inspector of Police is the witness of seizure memo (exhibit P-17), by which the bedhead ticket and X-ray plate of 19 Shiv Kumar, Avinash, Lalman Rathore, Bhagwan Das. Nothing specific comes in his cross-examination. 19. PW-13, T.L. Dewangan is the Assistant Sub-Inspector of Police, who stated in his evidence that he registered the numbered FIR at 00:15 AM on 04.04.2002 vide Crime No. 164 of 2002 on the basis of unnumbered Nalishi, which is exhibit P-18. In cross-examination, he stated that he registered the FIR (exhibit P-18) on the basis of unnumbered Nalishi and he has not received telephonic call of Ramesh Singh. The information about the incident is recorded in Rojnamcha sanha of the police station. He admitted that he himself took the Nalishi from Central Hospital. He admitted that at the time when he had gone to Central Hospital, the SHO, S.L. Maravi was not in hospital. Before them, the SHO already reached at Central Hospital and Dehati Nalishi (exhibit P-15) is in the handwriting of S.L. Maravi. He further admitted that in the FIR (exhibit P-18), the Rojnamcha sanha number and time is not mentioned. He also admitted that in the document (exhibit P-15) also, Rojnamcha sanha number is not there. At the time of recording of the Dehati Nalishi (exhibit P-15), he was not there. As and when he reached at the hospital, the T.I. handed him the Dehati Nalishi and he returned back. He prepared the FIR (exhibit P-18) in 06 copies for sending it to different places i.e. Challan, Court, District Crime Branch, Rojnamcha and one copy to the complainant, etc. He also admitted that there is overwriting in ‘B’ to ‘B’ part of exhibit P-18. The detailed consideration of this witness is necessary, because the appellants raised the ground that the Dehati Nalishi and FIR are anti-timed. 20 20. PW-14, Jawaharlal Jain is the eyewitness to the incident. He stated in his evidence that on 03.04.2002, at 11:00 PM, he was purchasing vegetable in the market. Shiv Kumar Gupta and Vijay Kesharwani was chatting near the market and Gopal Gupta was also purchasing vegetable. The vegetable market was running opposite Hazari hotel and across the road, Chhotelal Gupta was also there. At that time, a jeep came from Railway station side. He saw Harjit Singh sitting in the jeep having barrel gun. It was stopped in front of Hazari hotel. Harjit Singh got down from the jeep along with the gun and Gurbaksh Singh got down from the jeep along with sword. Ajay Arora, Harun Menon, Surendra Sindwani, Jasvir Raina, Gurjeet Raina and Narendra Singh also got down from the back side of the jeep. Some of them were armed with lathies. They surrounded the injured Shiv Gupta and exhorted as to they will see, who will save him. Thereafter, Harjit Singh came forward by abusing and on a very close distance, he made gunshot fire to Shiv Gupta, which inflicted on his right arm and right side of chest. Gurbaksh Singh assaulted Shiv Gupta by sword on his head. Thereafter, they walking towards jeep by saying that ‘let us go, work is over’. Another fire was made and thereafter all the persons fled away by the said jeep. Number of vegetable vendors were injured and they were shouting for help. He took Shiv Gupta and called Chhotelal and Gopal Gupta. Shiv Gupta was badly injured and they took him to a safe place. When they proceeded towards station road, the noise of exhorting as ‘maro- maro’ came from their back side and then, they immediately took Shiv Gupta and take shelter to the house of Rajendra Soni. They informed Rajendra Soni about the incident and called Rajesh Jaiswal 21 for his vehicle. On being asked, Rajendra Soni made a telephonic call to Ramesh Singh, Advocate and he informed him about the incident. After about 10 minutes, Rajesh Jaiswal came with his vehicle and then he took Shiv Gupta to the Central Hospital. Looking to the condition of Shiv Gupta, the doctor started his treatment. At that time, T.I. of Manendragarh police station also came and he started his inquiry from Shiv Gupta. After sometime, the Magistrate came there and recorded the statement of Shiv Gupta. On 04.04.2002, when he had gone to police station, they came to know that Harjit Singh, Harun Menon, Ajay Arora and Surendra Sindwani have been arrested by the police in the night itself. In his presence, their memorandum statements (exhibit P-19, P-20 and P-21) were recorded and lathis have been seized vide seizure memo (exhibit P- 22, P-23 and P-24). Police have recorded his statement and thereafter, the broken piece of shield of the sword has been seized from the spot vide seizure memo (exhibit P-25). On the same day, the memorandum of Harjit Singh was also recorded, which is exhibit P-26, in which he disclosed that he kept the gun in his house. . In cross-examination, he admitted that he was the President of Pragati Manch at that time, and Chhotelal Gupta, Rajendra Soni, Rajesh Jaiswal, Vijay Kesharwani were the members. Shiv Kumar Gupta was also a member of Pragati Manch and customer of his shop. He stated about good relation with all these persons. After the incident, he met with Ramesh Singh, advocate 3-4 times, but he has not asked about the incident. He reiterated about the proceeding, which has been done in his presence on the date of incident and on the next day of the incident. He stated in para 11 of his evidence that, 22 whatever he saw about the incident, he disclosed it before the police. Though he stated that, he disclosed before the police about the proceeding from the time, when the injured Shiv Gupta received injuries till reaching the Central Hospital, in the statement (exhibit D- 6), and if it is not there in his police statement, he could not tell the reason. From perusal of the 161 CRPC statement of this witness (exhibit D-6), he substantively stated about the incident and the manner in which the injured Shiv Gupta was assaulted by the accused persons. There is no discrepancy in the incident of assault in his 161 CRPC statement and the deposition made before the Court. There may be some discrepancies in informing the police or witnesses or taking the injured to the hospital, but that itself does not make his evidence doubtful. It is not the case that the injured Shiv Gupta has not received the injuries or no incident was occurred on that day. His presence on the spot was quite natural. In para 16, he further corroborated that the incident of gunshot fire was about 11:15 PM and he saw the injured Shiv Gupta and Vijay Kesharwani on the spot from the distance of 20 paces. In para 18 of his cross- examination, he stated that he informed the police that Harjit Singh has come forward with the gun and assaulted Shiv Gupta and made fire upon Shiv Gupta, and if it is not there, he could not tell the reason. From perusal of the document (exhibit D-6), it is specifically there that Harjit Singh made fire by his 12-bore gun upon Shiv Gupta. It is also there in his 161 CRPC statement (exhibit D-6) that Gurbaksh Chhabra also assaulted the injured Shiv Gupta by sword. Though the allegation of assault is not in exactly same fashion in both these places, but the substance of assault made by the accused persons is there in 161 CRPC statement and the deposition made 23 before the Court. From his detailed cross-examination, the defence could not extracted any substantive material, which makes his evidence doubtful or which gives presumption that his evidence is not believable. 21. PW-15, Gopal Gupta, another eyewitness to the incident, who stated in his evidence that on 03.04.2002, at about 11:00 PM, when he was purchasing vegetables in the market, a jeep came from station road side, in which Harjit Singh Chhabra, Gurbaksh Chhabra, Lala @ Ajay Arora, Surendra Sindwani, Harun Menon, Banti Sardar, Jasvir Singh Raina, Tingu Raina were sitting and they got down from the jeep. Harjit Singh was having double barrel gun, Gurbaksh was having katta in one hand and sword in other hand. The rest of the persons were armed with lathies, danda and rod. They surrounded Shiv Gupta and Harjit told him that he is demanding money and he will kill him and immediately thereafter put the gun on his chest and made fire. By the gunshot fire Shiv Gupta received injury on his right arm and chest. Gurbaksh assaulted Shiv Gupta by sword, which inflicted on his head and he fell down. The other persons were exhorted as ‘mar do saale ko, bachne na paye’. The nephews of Harjit Singh namely Tajinder Pal Singh, Balvinder Singh and Sannu were also hurling abuses. While returning by jeep, another fire was made by Gurbaksh and thereafter, they ran towards Ram Mandir. Jawaharlal Jain and Chhotelal Gupta were also standing there, who called him and then, they took the injured Shiv Gupta to the house of Rajendra Soni. Shiv Gupta was pooled with blood and he had some telephonic call with another person and thereafter, they took him to the Central Hospital by a car. He also went to Central Hospital by his scooter. 24 After 5-10 minutes, T.I. Maravi came there and inquired about the incident from Shiv Gupta. . In cross-examination, he stated that Shiv Gupta is his distant relative. He tried to get his statement recorded by the police, but the police assured him that his statement would be recorded later on. He stated that he disclosed the manner in which the injured was taken to hospital in his police statement (exhibit D-7) and if it is not there, he could not tell the reason. From perusal of the 161 CRPC statement (exhibit D-7) of this witness, it reveals that he disclosed about the entire incident, which he saw on the spot, which are the substantive piece of evidence, in which the involvement of the accused persons in the offence in question has been disclosed. But for minor omissions and contradictions and omission about the process, under which the injured Shiv Gupta was taken to hospital, nothing specific could be brought by the defence, which makes his evidence doubtful. 22. PW-16, Chhotelal Gupta is another eyewitness to the incident. He stated in his evidence that on 03.04.2002, at about 11:00-11:15 PM, when he had gone to betel shop at Hazari chowk, a jeep came from station road side. Except the accused Ajay Arora, he saw other accused persons there. Titu came towards Shiv Gupta by abusing him, by which he taken his attention towards him. He was having a gun with him and put the same on the chest of Shiv Gupta and made fire immediately. The other accused persons surrounded the injured Shiv Gupta, who were having lathies in their hands. When Shiv Gupta lost his balance, Gurbaksh Singh assaulted him by sword on his head and then, he fell down. Thereafter, the accused persons fled away towards Ram Mandir by hurling abuses. Jawahar Jain was 25 shouted for help and then he along with other persons took the injured Shiv Gupta to the house of Rajendra Soni and informed him that Titu has made gunshot fire upon him. After 5-7 minutes, Rajesh came there with vehicle and then they took Shiv Gupta to Central Hospital. . In cross-examination, he admitted that he was also the member of Pragati Manch on the earlier point of time and left it since 04 years back. At the time when, they took the injured to the hospital, it was about 12:00 in the night. Number of persons were present. He did not know as to who has admitted him in the hospital. After 5-7 minutes of reaching hospital, police came there, but he has no conversation with the police persons. On the next day of the incident, police recorded his statement. He accompanied the police persons in some part of the investigation. Though he also deviated from some part of his police statement, but from perusal of his 161 CRPC statement (exhibit D-8), it transpires that he too has supported the substantive part of allegation from assault made by the accused persons. There may be some deviation in reaching the hospital or taking the injured to the hospital and its manner, but that itself is not sufficient to disbelieve his evidence. This witness has denied the suggestion that the accused persons have covered their faces and also denied that he did not know, as to who made gunshot fire upon the injured. The minor discrepancies, which the defence brought in his evidence, does not affect the commission of the offence by the accused persons. He remained firm in his cross-examination about involvement of the accused persons in the offence in question. 26 23. PW-17, Rajesh Kumar Jaiswal is the witness, who took his vehicle to take the injured to hospital. He stated in his evidence that on 03.04.2002, at about 11:30 PM, on a telephonic call made by Rajendra Soni, he came to his house along with his vehicle and took the injured Shiv Gupta to the hospital. Shiv Gupta had received injuries on his arm, chest and head. He has got admitted Shiv Gupta to the hospital. He is not the eyewitness to the incident and informed about the incident by Jawahar Jain and Rajendra Soni. 24. PW-18, Kamlesh Kumar Vaishya is the injured witness. He stated in his evidence that on 03.04.2002, at about 11:00 PM, he was standing near fruits shop and talking with Avinash Gupta. At that time, there was a firing and he received pallet injury on his left side of chest and left leg. Blood was started oozing from his injuries and he rushed to his house. He was being taken to the police station by the vehicle of Ashok Agrawal, where he disclosed that the incident of gunshot fire is occurred near Hazari hotel. T.I. Maravi sent them to hospital. He could not see, as to who made gunshot fire. In cross-examination, he stated that when he admitted in the hospital, the Nayab Tahsildar has recorded his statement at about 3:00–3:30 AM. Injured Shiv Gupta was also lying on the next bed in the hospital and Nayab Tahsildar has also recorded his statement at that time. When they reached at police station, Rajesh Jaiswal was also there at police station and Shiv Gupta was sitting in his vehicle. T.I. Maravi has asked him to go to hospital and he is recording the report of Shiv Gupta. He admitted that some of the persons in the crowd have covered their faces by mask. 27 25. PW-19, Avinash Gupta is also one of the injured, has stated that on 03.04.2002, at about 10:45-11:00 PM, he heard a noise of gunshot fire and he also rushed to his house. In his house, he came to know that he also received pellet injuries on his back. He also went to Central Hospital. He did not know, as to who made gunshot fire. Since, he has not stated anything about any accused persons, no question has been asked in his cross-examination. 26. PW-20, Dr. D.K. Singh has medically examined the injured Shiv Kumar Gupta on 04.04.2002. He found lacerated would on right side of chest and right arm having minor spot injuries by gun powder and one incised would on right parietal region of his head. His report is exhibit P-2. The injured was in shock and the injuries were appeared to be caused by the fire arm by the distance of 5 feet. The head injury appears to be caused by hard and sharp object. In cross- examination, he stated that from the body of the injured Shiv Kumar, no pellets were recovered. The pellets could have been seen in the X-ray report, but the injured Shiv Kumar was not sent for his X-ray. He reiterated that on examination, he found cut injury on the head of the injured. He admitted that the arms and legs are not the vital part of the body, but if the veins/arteries are being cut, then they would be the vital organ. He admitted that there is no penetration in the valve inside the chest, but the muscles were lacerated. 27. PW-21, Dr. U.K. Bahra is another doctor, who medically examined the injured Shiv Kumar Gupta. He stated in his evidence that when he reached in the hospital, the injured Shiv Kumar Gupta was under surgery, but no pellets could be recovered from his body. He too has 28 proved the MLC report (exhibit P-2). On 08.04.2002, he referred the injured Shiv Kumar Gupta for CT scan, because he was complaining low vision. From the X-ray plate (exhibit P-27), fracture was found on his head bone. The injured Avinash Gupta, Ramesh Kumar Rathore, Lalman Rathore and Bhagwan Das were also admitted in the hospital. In cross-examination, he stated that the police have not made any query from him about nature of injuries. The question mark appeared in the document (exhibit P-2) would mean that it may be possible. On 09.04.2002, the injured Shiv Kumar Gupta was discharged from the hospital. He helped Dr. D.K. Singh in stitching of his head injury. 28. PW-22, Anita Prabha Minj is the Sub-Inspector of Police, who recorded statement under Section 161 of CRPC of the injured Shiv Kumar Gupta and witness Gopal Gupta on 12.06.2002. Nothing specific have been asked from this witness to disbelieve that she has not recorded their statements. 29. PW-23, S.L. Maravi, who is the Inspector of Police and Investigating Officer, has stated in his evidence that on 03.04.2002, on being information given by Shiv Gupta, he recorded the Dehati Nalishi (exhibit P-15). On 04.04.2002, he prepared spot map (exhibit P-16). On the same day, he recorded the memorandum statement of accused Surendra Sindwani (exhibit P-19), Harun Menon (exhibit P- 20), Ajay Arora (exhibit P-21), Harjit Singh Chhabra (exhibit P-26) and from Surendra Sindwani (exhibit P-22), Harun Menon (exhibit P- 23), Ajay Arora (exhibit P-24). On 04.04.2002, he seized the lower part of the shield of sword from the spot, which is exhibit P-25. On 09.04.2002, a shirt and full pant has been seized from the injured 29 Shiv Kumar Gupta, which is exhibit P-13. On 04.04.2002, he recorded the statements of Ramesh Singh, Budhiya Bai, Rajendra Prasad, Jawaharlal, Chhotelal, Ramesh Kumar Rathore, Lalman Rathore, Purushottam, Bhagwan Das and Rajesh Kumar Jaiswal. On 04.04.2002 itself, he seized a 12 bore double barrel gun and its license from the accused Harjit Singh vide seizure memo (exhibit P- 12). In cross-examination, he admitted that the statement of Gopal Gupta and Shiv Gupta was recorded by Sub-Inspector Anita Prabha Minj on 12.06.2002. The dying declaration of Shiv Gupta was also recorded by Nayab Tahsildar. He further admitted that on the date of incident, at about 11:30 PM some vehicles came to the police station and the persons who were in the vehicles, have informed him about gun firing at Hazari chowk and also informed that the injured persons were taken to hospital. Since, there was a crowd in the hospital, he could not ask from the injured persons as to who made gunshot fire. Even none of the persons, who were with the injured persons have informed him about the assailants. When he went on the spot, it has also not been disclosed to him that, the assailants were covered their faces. Mr. Ramesh Singh, Advocate has also not informed him about the person, who made gunshot fire. He received information about 11:30 in the night and immediately after 5-10 minutes, he proceeded towards the place of incident. On being inspection, he did not find any pellets there. From the spot, he proceeded towards Central Hospital and met the injured Shiv Kumar Gupta, who was admitted in the hospital. He was in high pain and he had to ask him repeatedly about the assailants. His condition was not good. During the inquiry, 30 he came to know that injured Shiv Kumar Gupta was admitted in the hospital by Basant and Ashok Agrawal, but he did not inquire from them. From the time of incident till reaching to Central Hospital, the injured Shiv Kumar Gupta has not disclosed about the name of assailants, even Mr. Ramesh Singh, Advocate has not informed about the assailants. He admitted that Lalman Rathore disclosed him that the assailants were covered their faces and he could not identify them. He also reiterated whatever the witnesses have stated before him and he recorded their statements. The defence has asked about omissions and contradictions in the statements of the witnesses, which he has recorded. He admitted that at the time of lodging of the report, injured Shiv Kumar Gupta has not informed the name of Surendra Sindwani and Tingu Raina, and therefore, their name does not appear in Dehati Nalishi (exhibit P-15). He did not know as to whether Ramesh Singh, Rajendra Soni, Chhotelal Gupta, Jawaharlal Jain, Rajesh Jaiswal and Shiv Kumar Gupta are the Members of Pragati Manch or not. He also admitted that he has not recorded the statement of Vijay Kesharwani. Injured Kamlesh had come to police station at about 11:30 PM and 3-4 persons were also with him including Shiv Gupta. He further admitted that in the Dehati Nalishi (exhibit P-15), there is no mention of Rojnamcha sanha number and explained that, there is no requirement of mentioning the Rojnamcha number in the unnumbered Dehati Nalishi. Even in the FIR (exhibit P- 18), there is no mention of Rojnamcha sanha number. He forwarded a copy of FIR (exhibit P-18) to the concerned Magistrate on 04.04.2002. He further admitted that in the document (exhibit P-2), it has been mentioned that the injured Shiv Kumar Gupta was admitted in the hospital on 04.04.2002, at about 12:05 AM. He also admitted 31 that the statement of Shiv Gupta and Gopal Gupta dated 12.05.2002 is not annexed with the charge sheet and is not available in the case diary. He denied the suggestion that the Dehati Nalishi is anti-timed and anti-dated. 30. PW-24, Vijay Kesharwani is another eyewitness to the incident. He stated in his evidence that, on 03.04.2002, at about 11:00–11:30 PM, when he was standing near his house at Hazari chowk, a jeep came from station side, in which Harjit Singh Chhabra was sitting with his gun. They stopped their jeep there and Gurbaksh Singh Chhabra, Harun Menon, Surendra Sindwani, Ajay Arora, Jasvir Singh Raina, the younger brother of Jasvir Singh Raina namely Tingu Raina and Banti @ Narendra got down from the jeep. Shiv Gupta, Jawahar Jain and Gopal Gupta were standing near the vegetable shop and the accused persons surrounded them and Harjit Singh made gunshot fire. He could not see there, as to who has got injured by the pellets and subsequently, came to know that Shiv Gupta and other vegetable vendors received gunshot injuries. He informed the younger brother of Shiv Gupta through telephone about the incident. On the next morning, at about 10:30-10:45 AM, he was being called by the police and informed them about the incident. Statement of Surendra Sindwani, Harun Menon, Ajay Arora and Harjit Chhabra have been recorded in his presence and lathies have been seized from them. In cross-examination, he stated that since Shiv Gupta is also the resident of same vicinity, he knew him. He did not know, as to whether Shiv Gupta, Jawaharlal Jain and Chhotelal Gupta are the members of Pragati Manch or not. During his cross-examination, a 32 note was appended in para 9 that the police statement of this witness is not available in the charge sheet and his statement is not recorded by the police. He further stated that he informed the police about the incident. He subsequently came to know that Avinash and Kamlesh were also injured by gunshot fire. Discussion on the submissions made by learned counsel for the appellants:- 31. The key point raised by Mr. Surendra Singh, Senior Advocate learned counsel for the appellants No. 1 and 8 that the Dehati Nalishi (exhibit P-15) is tainted, anti-timed and anti-dated, there is no pellets have been found on the body of the injured, and if he was actually injured by gunshot, there must be pellets in his body or entry and exit would caused by gunshot. The injury found on the body of Shiv Gupta is merely a lacerated wound, which could not be caused by gunshot. Even if it is found proved that the appellants No. 1 and 8 caused injuries to injured Shiv Gupta and other persons, looking to the injuries found on the body of the injured persons, their offence does not travel beyond Section 324 of IPC. 32. So far as the submission that the Dehati Nalishi (exhibit P-15) is anti- timed and anti-dated is concerned, the appellants tried to establish that the injured Shiv Gupta was admitted in the hospital on 12:05 AM, on 04.04.2002, whereas the Dehati Nalishi (exhibit P-15) was recorded on 03.04.2002, at 23:55 PM, which was recorded in the hospital by S.L. Maravi/PW-23. From the evidence of the investigating officer PW-23/S.L. Maravi, it comes that he received intimation about the incident at 11:30 in the night and after 5-10 33 minutes, he proceeded to the place of incident. Thereafter he proceeded towards Central Hospital, and inquired from injured Shiv Gupta. He was in very much pain at that time and was not in a position to speak properly and his condition was not good. There may be the difference of time in inquiring about the incident from the injured persons or the recording of the Dehati Nalishi, but the time gape as claimed by the learned counsel for the appellants No. 1 and 8 is not so much of difference, which makes the Dehati Nalishi doubtful. In such process, there may be some difference in time, which is quite natural. In Dehati Nalishi (exhibit P-15), the injured Shiv Gupta has signed and he disclosed the entire incident and named the accused persons and their weapons. From the evidence of injured Shiv Gupta/PW-11 or S.L. Maravi/PW-23, the defence could not extracted any material, which makes the Dehati Nalishi (exhibit P-15) for consideration it to be an anti-dated or anti-timed Dehati Nalishi. The injured Shiv Gupta was immediately taken to hospital, where the Dehati Nalishi (exhibit P-15) was immediately recorded. There may be some latches and investigation, but the same also does not affect the prosecution’s case, as the same could not benefited the accused persons. Hon'ble Supreme Court in the matter of “V.K. Mishra and others v. State of Uttrakhand“ AIR 2015 SC 3043, has held that:- “32. Refuting the contention of the Appellants on the lapses in the investigation and contending that any lapse in the investigation does not affect the core of the prosecution case, the Respondents have placed reliance upon the judgment of this Court in State of 34 Karnataka v. K. Yarappa Reddy (1999) 8 SCC 715, wherein this Court held as under: ...It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well- nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case....” 33. In the matter of “State of West Bengal v. Meer Mohammad” AIR 2000 SC 2988, the Hon'ble Supreme Court has held in para 41 that:- “41. Learned Judges of the Division Bench did not make any reference to any particular omission or lacuna in the investigation. Castigation of investigation unfortunately seems to be a regular practice when the trial courts acquit accused in criminal cases. In our perception it is almost 35 impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavory criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, the ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case. Before an investigating officer is imputed with castigating remarks the courts should not overlook the fact that usually such an officer is not heard in respect of such remarks made against them. In our view the court need make such deprecatory remarks only when it is absolutely necessary in a particular case, and that too by keeping in mind the broad realities indicated above.” 34. With respect to other submission of the appellants No. 1 and 8, no pellets were found on the body of the injured, therefore, the injury was not of gunshot injury and it is only for intimidation of the injured and not for assault made with the intention to commit his murder. As per his submissions, in the gunshot injury, there should be the entry and exit wound on the body. In the Modi’s Medical Jurisprudence and 36 Toxicology, 23rd Edition, the gunshot fire by blank cartridge has been defined at page 719. The fire can also be made from the blank cartridge, which does not contain bullets or pellets. The relevant part of the fire by blank cartridge and its impact is given hereinbelow:- “Blank cartridge generally contains ultra-fast burning powder that detonates rather than burns. It does not contain bullets or pellets. However, its wad or powder blast may cause frightful laceration and may produce death by penetrating the internal organs of the body even if a blank cartridge is discharged close to the body. Balling of shotgun pellets is rare (unless achieved intentionally by pouring wax into the shot charge), but this conversion of shots into compact mass can result in complex injuries even at distant range.” 35. In Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, in clause Q.4.16, the comment on blank cartridge has been described, which reads as under:- “Blank cartridge: This is a cartridge with primer, gunpowder, and wadding but without a bullet. It is used in starter pistols in sporting events, stage performances, and army manoeuvres. It may be sealed with a paper disc or may have a crimped neck. It cannot inflict injuries at a distance as there is no bullet but can be very dangerous in contact or close range firing up to a few inches.” 36. From these two scientific authorships, it reveals that the cartridge of the gun may be with or without bullets. A blank cartridge may also be fired by gun having gun powder in it. From the Modi’s Medical Jurisprudence, it also reveals that wad or powder blast of blank 37 cartridge may cause make frightful laceration. In the present cade, no pellets were found on the body of the injured, but laceration and gun powder was detected on their body. As per the evidence of eyewitness, Harjit Singh Chhabra has made gunshot fire on the injured with the contact range, which caused injuries on the left side of chest and left arm of the injured Shiv Gupta and other injured persons. From the Modi’s Medical Jurisprudence, it also reveals that the injury may produce death by penetrating the internal organs of the body, even if a blank cartridge is discharged close to the body. In the present case, the gunshot fire was made by the accused Harjit Singh Chhabra from the contact range of his licensee gun, which may cause death of the injured. 37. Another submission made by learned counsel for the appellants No. 1 and 8 that the offence of the appellants, if any, does not travel beyond the scope of Section 324 of IPC. After appreciation of the entire facts and circumstances of the case, evidence available on record, and the manner in which the offence was committed, it cannot be said that the appellants were not intended to commit murder of the injured Shiv Gupta. All the accused persons came together in the jeep having armed with gun, sword and lathies. They surrounded the injured Shiv Gupta and the accused Harjit Singh Chhabra made gunshot fire from his 12 bore double barrel gun on the chest of the injured Shiv Gupta by the contact range, thereafter the co-accused Gurbaksh Singh made a sword blow on his head, by which he received cut injury on his head. Thereafter, all the accused persons fled away by hurling abuses and threats by the said jeep and prior to leave the place, another fire was made by Gurbaksh Singh by 38 his gun. All these affairs of the incident, clearly demonstrate that the accused persons were intended to commit murder of injured Shiv Gupta. 38. To attract the offence under Section 307 of IPC, it is only intention coupled with some overt act is to be seen and not the nature of injuries. In the matter of “Fireman Ghulam v. State of Uttaranchal” 2016 (15) SCC 752, the Hon'ble Supreme Court has held that:- “8 . To justify a conviction Under Section 307 Indian Penal Code the Court has to see whether the act was done with the intention to commit murder and it would depend upon the facts and circumstances of the case. Although the nature of injuries caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be gathered from the circumstances like the nature of weapons used, parts of the body where the injuries were caused, severity of the blows given and motive, etc.” 39. In the matter of “Hari Mohan Mandal v. State of Jharkhand” 2004 (12) SCC 220, the Hon'ble Supreme Court has held that:- “11. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. If the injury inflicted has been with the avowed object or intention to cause death, the ritual nature, extent or character of the injury or whether such injury is sufficient to actually causing death are really factors which are wholly irrelevant for adjudging the culpability under Section 307 IPC. The Section 39 makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt.” 40. The key point raised by Mr. Arvind Shrivastava, learned counsel for the appellant No. 2 that the Dehati Nalishi (exhibit P-15) should not be treated as FIR, as the same is anti-timed and anti-dated. The Dehati Nalishi is recorded in presence of the police officials, which cannot be relied upon and the possibility of deliberation cannot be ruled out. The charges framed against the appellant is not proper and no sufficient description was given in the charge. The preparation of site plan itself is suspicious, which is the most important part of the investigation. The alleged dying declaration recorded by the Nayab Tahsildar has not been filed with the charge sheet and the incriminating circumstances not put before the accused persons to explain under Section 313 CRPC statement of the appellant. 41. With respect to the submission of anti-timed and anti-dated FIR, it has been discussed in the earlier part of the judgment, as the learned counsel for appellants No. 1 and 8 has also argued the same. Learned counsel appearing for the appellant No.2 though tried to built up his case by citing certain judgments, but the facts of those cases are different and distinguishable to the facts of the present case, and therefore, no benefit can be extended by the same. As has been found by this Court that the Dehati Nalishi (exhibit P-15) is 40 neither tainted nor anti-timed or anti-dated. From perusal of Dehati Nalishi (exhibit P-15), it transpires that all the necessary ingredients of the FIR are there in the Dehati Nalishi, which discloses the commission of cognizable offence. It is not that two separate FIRs have been registered in the present case, but on the basis of Dehati Nalishi (exhibit P-15), the numbered FIR (exhibit P-18) was registered, which cannot be said to be a separate FIR or two FIRs on the same set of allegations. 42. So far as the submission that the charge against the appellant has framed, is not proper is concerned, the appellant No.2 Gurbaksh Singh is charged for the offence under Sections 147, 148 and 307 of IPC. From perusal of the charge memo of the accused persons, it reveals that there is sufficient description of the offence in the charge memo, for which the accused persons are tried. Even Section 464 of CRPC provides that, no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid, merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge. Section 464 of CRPC provides as under:- “464. Effect of omission to frame, or absence of, or error in, charge— (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a 41 failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision, is of opinion that a failure of justice has in fact been occasioned, it may,— (a) in the case of an omission to frame a charge, order that a charge be framed, and that the trial be recommended from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.” 43. The appellant No.2 fully knowing his case, participated in the entire trial and has taken defence available to him. From the charge memo as well as from the provisions of Section 464 CRPC, this Court finds that there is sufficient description in the charge memo and the impugned judgment of conviction and sentence is not liable to be set- aside on this ground. 44. Another submission made by learned counsel for the appellant No.2 that the site plan (exhibit P-16) prepared by the police, is defective, which is the mandatory part of the investigation, and thereby there is serious latches in the investigation and in such a faulty investigation, 42 the entire trial vitiates. From perusal of the spot map (exhibit P-16), it clearly reveals that the police have prepared the spot map on 04.04.2002, which is very next day of the incident, in which entire details are given including the presence of the eyewitness. In the spot map, the point No.1 is the place, where the incident occurred, point No.2 is the place, where the accused persons stopped their jeep, point No.3, 4 and 5 are the places, where the eyewitnesses Vijay Kesharwani, Jawaharlal Jain and Chhotelal Gupta were standing and have seen the incident, point No.6 is the place, where the vegetable vendors were sitting and point No.7 is the place, from where the lower part of the shield of the sword was seized. The spot map (exhibit P-16) also disclosed the position of the houses and shops situated at Hazari chowk, and entire details have been mentioned in it. Even otherwise, as has been already held in the earlier part of the judgment that, the irregularities or illegalities in the investigation, if any, does not benefited the accused. 45. The other submission of learned counsel for the appellant No.2 that all the incriminating circumstances were not put before the appellant No.2 to explain, for that reason itself his conviction and sentence is liable to be set-aside. From perusal of 313 CRPC statement of the appellant No.2, it transpires that all the incriminating circumstances, have been put before him to explain, which he duly replied. His presence on the spot, involvement in the incident and assault made by him to the injured Shiv Gupta by sword, injuries found on the body of the injured Shiv Gupta, nature of injuries, recording of the Dehati Nalishi and FIR, recoveries made by the police and all other incriminating circumstances are put before him. The appellant No.2 43 could not demonstrate that any particular incriminating circumstance was not put to him for its explanation, on the basis of which his conviction is made. The judgments cited by the appellant No.2 with respect to non-compliance of the mandatory provisions of Section 313 of CRPC is on different facts and different consideration and distinguishable to the present facts of the case. 46. Another point raised by learned counsel for the appellant No.2 that the dying declaration of the injured Shiv Gupta, which is recorded by the Nayab Tahsildar has not been produced in the case, and therefore, the material evidence is suppressed by the prosecution. This Court is not impressed by the submission of learned counsel for the appellant No.2 in view of the fact that the injured Shiv Gupta is survived and even if his dying declaration allegedly recorded by the Nayab Tahsildar is produced in the case, the same would have barring of the statement under Section 164 of the CRPC, which can be used for corroboration or contradiction. In the present case, Dehati Nalishi (exhibit P-15) is recorded by the police and his 161 CRPC statement (exhibit D-5) is also produced by the police and therefore, non-production of the dying declaration of the injured Shiv Gupta does not affect the prosecution’s case. 47. In the matter of “State of U.P. v. Veer Singh and others” 2004 (10) SCC 117, the Hon'ble Supreme Court has held that:- “5 . It is trite law that when maker of purported dying declaration survives the same is not statement under Section 32 of the Indian Evidence Act, 1872 (for short the 'Evidence Act') but is a statement in terms of Section 164 of the Code. It can be used under Section 44 157 of the Evidence Act for the purpose of corroboration and under Section 155 for the purpose of contradiction. This position was highlighted in Ramprasad v . State of Maharashtra, 1999CriL J2889, Sunil Kumar and Ors. v. State of Madhya Pradesh, 1997CriL J1183, and Gentela Vijayavardhan Rao v. State of A.P., 1996CriL J4151” 48. The key point raised by Mr. Y.C. Sharma, Senior Advocate appearing for the appellant No. 6 that, the 161 CRPC statement of the injured Shiv Gupta/PW-11 has been recorded after two months and there is omnibus allegation against the appellant, and lathi has been seized from him, but there is no injury of lathi on the body of the injured, therefore, entire case of the prosecution is doubtful against the appellant No.6. Although, the 161 CRPC statement of the injured Shiv Gupta is recorded on 12.06.2002, which is marked as exhibit D- 5, and the same has been recorded by PW-22/Anita Prabha Minj, but the Dehati Nalishi (exhibit P-15) has been recorded immediately after the incident on the same day and the contents of the Dehati Nalishi (exhibit P-15) corroborates the 161 CRPC statement (exhibit D-5). Further, from the evidence of PW-22/Anita Prabha Minj, the defence could not extract any material, which makes her evidence doubtful or recording of the statement of injured Shiv Gupta can be said to be a concocted document. The reasons for delayed recording of the statement is given by her that, before 12.06.2002, the witness did not come before her for recording of his statement, therefore, even if the statement of the injured Shiv Gupta is recorded on 12.06.2002, it does not affect the prosecution’s case. The submission that the omnibus allegations have been leveled against the appellant and no 45 lathi injury have been found on the body of the injured is concerned, the appellant No.6 Harun Menon is the member of unlawful assembly, who was also come along with other co-accused persons armed with lathi, got down from the jeep, surrounded the injured and then one of the accused persons have made gunshot fire and other accused made sword blow on his head, which itself is sufficient to convict him for the alleged offence. Even if no assault was made by him by lathi, his presence in the unlawful assembly and in furtherance of their common object, he committed the offence and fled away together by the said jeep, clearly involved him in the offence in question. The judgment of “Harbeer Singh” (supra) cited by learned counsel for the appellant No.6, though discussed about the delayed recording of the statement, but it is distinguishable from the facts of the present case, and therefore, no benefit can be extended to the appellant by the said judgment. 49. The key point raised by Mr. Shati Raj Sinha, learned counsel appearing for the appellants No. 4, 5 and 7 that, motive has not been proved against these accused persons. The appellant Gurjeet and Narendra has not been named in Dehati Nalishi (exhibit P-15) and FIR (exhibit P-18), no weapon has been seized from them and they had not come from the jeep and there is no overt act alleged against them and the jeep has not been seized. 50. So far as motive is concerned, the injured Shiv Gupta has disclosed in Dehati Nalishi (exhibit P-15) that there was an agreement between him and Harjit Singh Chhabra with respect to the sale of the property and subsequently, he refused to purchase that property and for refund of his advance amount from Harjit Singh. On that issue, there 46 was a quarrel between them on the same day and in the night, at about 11:15 PM the incident occurred. Even otherwise, it is a case of injured witness and eyewitnesses, who deposed against the accused persons that they committed the offence. The dispute with respect to agreement of sale has not been specifically denied by the accused persons, and therefore, there is motive behind commission of the offence. 51. So far as the name of appellant No.4 Gurjeet and appellant No.7 Narendra is not there in the Dehati Nalishi and FIR is concerned, in the Dehati Nalishi (exhibit P-15), it has been mentioned that by the jeep the accused Harjit Chhabra, Harun Menon, Ajay Arora, Gurbaksh Chhabra, Lovely, Banti Sardar, Jasvir Raina, Banti Raina about 8-10 persons came. In the FIR (exhibit P-18), though Gurjeet has specifically not been named, but younger brother of Jasvir Raina has been named and from the documents in the case, as also from the 313 CRPC statement of the accused persons it reveals that, the name of the father of Gurjeet Singh and Jasvir Raina is one and the same i.e. Ranjeet Singh, which clearly established that Gurjeet Singh is the younger brother of Jasvir Raina, who is named in the FIR (exhibit P-18). 52. So far as the allegation against appellant No.7 Narendra is concerned, he is also known by his nick name as ‘ Banti Raina’ and the name of Banti Raina came in the FIR (exhibit P-18). He has never challenged that Banti Raina is not his nick name and he arrayed in the present case as ‘Narendra Singh @ Banti’. In the 161 CRPC statement of Jawaharlal (exhibit D-6), Chhotelal (exhibit D-8), which are recorded on 04.04.2002, the name of Banti clearly appears 47 as one of the members of unlawful assembly, who came together by the jeep. Therefore, even if Narendra is not named, he can be identified by his nick name ‘Banti’ and arrayed in the case as ‘Narendra @ Banti’, therefore, the claim of the appellants that they are not named in the FIR and Dehati Nalishi, is rejected. 53. Further, even if the jeep has not been seized in the case, it does not affect the prosecution’s case, as the substantive allegation is that the accused persons came together on the spot and committed the offence and after commission of the offence, they fled away. The jeep was being used to came on the spot and fleeing away from the spot. The witnesses have clearly stated that the accused persons came on the spot by the jeep. The non-seizure of the jeep, does not have any impact upon the substantive allegation of gunshot fire and sword blow upon the injured Shiv Gupta by the accused persons. Therefore, this ground is also does not help the appellants in their favour. 54. The key point raised by Mr. Raghvendra Pradhan, learned counsel appearing for the appellant No.3 Surendra Sindwani that, no TIP was conducted by the police, although lathi has been seized from him but no injuries of lathi has been found on the body of the injured Shiv Gupta, all the witnesses are members of Pragati Manch and there are vital omissions and contradictions in the evidence of the injured and eyewitnesses, and the appellant Surendra Sindwani cannot be convicted in such inconsistent evidence. 55. So far as TIP is concerned, it is not required in the case for the reason that, he was already known to the witnesses and his nick 48 name is ‘Lovely’ and has been arrayed in the case as ‘Surendra Sindwani @ Lovely’. In the Dehati Nalishi (exhibit P-15) as well as in the FIR (exhibit P-18), the name of Lovely is recorded and since he was known to the witnesses, TIP is not required to be conducted. With respect to the absence of lathi injury on the body of the injured Shiv Gupta, it is already considered that, all the accused persons came together by a jeep armed with gun, sword and lathies, they surrounded the injured and one of the accused persons made gunshot fire and another made sword blow on the head of the injured Shiv Gupta. All of them came together and fled away together by the said jeep. Even if no lathi injury was found on the body of the injured, it is proved that he was the member of unlawful assembly and in furtherance of their common object, they committed the offence. Therefore, the appellant No.3 cannot take shelter that no lathi injury has been found on the body of the injured, and therefore, he cannot be convicted. The further submission of learned counsel for the appellant No.3 that the witnesses are members of Pragati Manch and there is vital omissions and contradictions in the evidence of the injured and other witnesses, on minute examination of prosecution witnesses, the omissions or contradictions are not found sufficient to discard their evidence, as the prosecution witnesses are the eyewitnesses and duly supported the case on the material point of allegations. 56. In the matter of “Ramchandran and others v. State of Kerala” 2011 (9) SCC 257, the Hon'ble Supreme Court has observed in para 20 of its judgment that:- 49 “20. However, once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. (See Daya Kishan v. State of Haryana; Sikandar Singh v. State of Bihar and Debashis Daw v. State of W.B).” 57. Taking the cumulative effect of the evidence available on record and the allegations against the accused persons, it is found established in the case that all the accused persons came together armed with gun, sword and lathies having common object to cause death of the injured Shiv Gupta and in furtherance thereof, they made gunshot fire and also made sword blow on his head and thereafter fled away from the spot. The accused persons have duly identified by the witnesses and they disclosed their names. The manner in which the accused persons committed the offence, clearly spells that they were formed unlawful assembly and in furtherance thereof they committed the offence. Each member of the unlawful assembly is liable to be convicted under the vicarious liability for the act done by any member of the said unlawful assembly. 58. The Hon'ble Supreme Court in the matter of “Lakshman Singh v. State of Bihar” 2021 (9) SCC 199 has observed in para 12 to 17 of its judgment that:- 50 “12. Now so far as the conviction of the accused under Section 147 IPC is concerned, the presence of all the accused persons at the time of incident and their active participation has been established and proved by the prosecution by examining the aforesaid witnesses who are the independent witnesses and injured witnesses also. The accused persons belong to another village. They formed an unlawful assembly in prosecution of common object i.e. "to snatch the voters list and to cast bogus voting". It has been established and proved that they used the force and, in the incident. PW 5, PW 8, PW 10 & PW 12 sustained injuries. All the accused persons appellants, were having lathis. Section 147 IPC is a punishable section for "rioting". 13. The offence of "rioting" is defined in Section 146 IPC, which reads as under: "146. Rioting. Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting." 14. On a fair reading of the definition of "rioting" as per Section 146 IPC, for the offence of "rioting", there has to be. (i) an unlawful assembly of 5 or more persons as defined in Section 141 IPC i.e. an assembly of 5 or more persons and such assembly was unlawful: 51 (ii) the unlawful assembly must use force or violence. Force is defined in Section 349 IPC: and (iii) the force or violence used by an unlawful assembly or by any member thereof must be in prosecution of the common object of such assembly in which case every member of such assembly is guilty of the offence of rioting. 15. "Force" is defined under Section 349 IPC. As per Section 349 IPC. "force" means "A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other...". 16. As observed hereinabove, all the accused persons were the members of the unlawful assembly and the conimon intention was "to snatch the voters hslips and to cast bogus voting". They used force and violence also, as observed hereinabove. It is the case on behalf of the accused that there is no specific role attributed to them for the offence of rioting under Section 147 IPC. However, as observed hereinabove and as held by this Court in Abdul Sayeed, where there are large number of assailants, it can be difficult for witnesses to identify each assailant and attribute specific role to him. In the present case, the incident too concluded within few minutes and therefore it is natural that exact version of incident revealing every minute detail i.e. meticulous exactitude of individual acts cannot be given by eyewitnesses. Even otherwise, as held by this Court in Mahadev Sharma, every member of the unlawful assembly is guilty of the offence of rioting even though he may not have 52 himself used force or violence. In para 7, it is observed and held as under: (Mahadev Sharma case, AIR p. 303) "7. Section 146 then defines the offence of rioting. This offence is said to be committed when the unlawful assembly or any member thereof in prosecution of the common object of such assembly uses force or violence. It may be noticed here that every member of the unlawful assembly is guilty of the offence of rioting even though he may not have himself used force or violence. There is thus vicarious responsibility when force or violence is used in prosecution of the common object of the unlawful assembly." 17. Thus, once the unlawful assembly is established in prosecution of the common object i.e. in the present case, "to snatch the voters list and to cast bogus voting", each member of the unlawful assembly is guilty of the offence of rioting. The use of the force, even though it be the slightest possible character by any one member of the assembly, once established as unlawful constitutes rioting. It is not necessary that force or violence must be by all but the liability accrues to all the members of the unlawful assembly. As rightly submitted by the learned counsel appearing on behalf of the State, some may encourage by words, others by signs while others may actually cause hurt and yet all the members of the unlawful assembly would be equally guilty of rioting. In the present case, all the accused herein are found to be the members of the unlawful assembly in prosecution of the common object i.e. "to snatch the voters list and to cast bogus 53 voting" and PW 5. PW 8. PW 10 & PW 12 sustained injuries caused by members of the unlawful assembly, the appellant-accused are rightly convicted under Section 147 IPC for the offence of rioting.” 59. In the matter of “State of M.P. v. Killu @ Kailash and others” 2020 (16) SCC 735, the Hon'ble Supreme Court in para 8 and 9 has held that:- “8. Since the instant case depends upon the extent and application of the principle of vicarious liability under Section 149 of the IPC, at the outset, we may consider the leading case of Masalti vs. State of U.P.1 The submission of the appellants therein was that mere presence in an assembly would not make a person member of an unlawful assembly unless it was shown that he had done something or omitted to do something which would make him a member of unlawful assembly. Reliance was placed by said appellants on the earlier judgment of this Court in Baladin vs. State of Uttar Pradesh2 . The issue was dealt with as under:- “17… … The observation of which Mr. Sawhney relies, prima facie, does seem to support his contention; but, with respect, we ought to add that the said observation cannot be read as laying down 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 such an unlawful assembly. In appreciating the effect of the relevant observation on which Mr. Sawhney has built his argument, we must 54 bear in mind the facts which were found in that case. It appears that in the case of Baladin2, the members of the family of the appellants and other residents of the village had assembled together; some of them shared the common object of the unlawful assembly, while others were merely passive witnesses. Dealing with such an assembly, this Court observed that the presence of a person in an assembly of that kind would not necessarily show that he was a member of an unlawful assembly. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly ,and he entertained along with the other members of the assembly the common object as defined by s.141, I.P.C. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of s. 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by s.141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were 55 merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin2 assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, s.149 makes it clear 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 likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence. is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by s.149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of Baladin2 must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law such as Mr. Sawhney suggests.” (emphasis supplied) 56 9. After considering the cases on the point including Masalti1, the order of acquittal passed by the High Court was set aside by this Court in State of Maharashtra vs. Ramlal Devappa Rathod and others. Relevant paragraphs of the decision are:- “22. We may at this stage consider the law of vicarious liability as stipulated in Section 149 IPC. The key expressions in Section 149 IPC are: (a) if an offence is committed by any member of an unlawful assembly; (b) in prosecution of common object of that assembly; (c) which the members of that assembly knew to be likely to be committed in prosecution of that object; (d) every person who is a member of the same assembly is guilty of the offence. This section makes both the categories of persons, those who committed the offence as also those who were members of the same assembly liable for the offences under Section 149 IPC, if other requirements of the section are satisfied. That is to say, if an offence is committed by any person of an unlawful assembly, which the members of that assembly knew to be likely to be committed, every member of that assembly is guilty of the offence. The law is clear that membership of 57 unlawful assembly is sufficient to hold such members vicariously liable. 23. It would be useful to refer to certain decisions of this Court. In State of U.P. v. Kishanpa it was observed: (SCC p. 93, para 47) “47. … It is well settled that once a membership of an unlawful assembly is established it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. In other words, mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed.” Further, in Amerika Rai v. State of Bihar5 it was observed as under: “13. The law of vicarious liability under Section 149 IPC is crystal clear that even the presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.” 24. The liability of those members of the unlawful assembly who actually committed the offence would depend upon the nature and acceptability of the evidence on record. The difficulty may however arise, while considering the liability and extent of culpability of those 58 who may not have actually committed the offence but were members of that assembly. What binds them and makes them vicariously liable is the common object in prosecution of which the offence was committed by other members of the unlawful assembly. Existence of common object can be ascertained from the attending facts and circumstances. For example, if more than five persons storm into the house of the victim where only few of them are armed while the others are not and the armed persons open an assault, even unarmed persons are vicariously liable for the acts committed by those armed persons. In such a situation it may not be difficult to ascertain the existence of common object as all the persons had stormed into the house of the victim and it could be assessed with certainty that all were guided by the common object, making every one of them liable. Thus when the persons forming the assembly are shown to be having same interest in pursuance of which some of them come armed, while others may not be so armed, such unarmed persons if they share the same common object, are liable for the acts committed by the armed persons.” 60. From careful examination of the evidence, which came on record, it appears that the accused persons, who were members of unlawful assembly came together, committed the incident and fled away together. There is motive exists with respect to the dispute of sale transaction and refund of money. While fleeing away from the place, 59 they were exhorting and hurling abuses. Since the object of the assembly was unlawful from the very inception, the accused persons are liable for rioting as they did, by using force and violence and with intention to commit murder of Shiv Gupta caused injuries to him by gun and sword. 61. Thus, the findings recorded by the learned trial Court convicting the accused No.1 Ajay Arora, No. 3 Surendra Sindwani, No. 4 Gurjeet Singh, No.5 Jasvir Singh Raina, No.6 Harun Menon and No. 7 Narendra Singh @ Banti for the offence under Sections 147 and 307/149 of the IPC, appellant No.2 Gurbaksh Singh and No. 8 Harjit Harjit Singh for the offence under Sections 147, 148, 324 and 307 of IPC, are found to be justified, and this Court does not find any scope of interference in the conviction of the appellants for the above said offences, and thereby, their conviction are hereby maintained. 62. In the matter of “Mohammad Giasuddin Vs. State of Andhra Pradesh”, (1977) 3 SCC 287, Hon'ble Supreme Court has observed that if you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries and held in Para 9 as follows: "9. Western jurisprudes and sociologists. from their own angle have struck a like note. Sir Samuel Romilly, critical of the brutal penalties in the then Britain, said in 1817: "The laws of England are written in blood". Alfieri has suggested: 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Center, Athens, Greece, maintains that 'crime is the result of the lack of the right kind of education'. If it is thus plain that crime is 60 a pathological aberration. that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an 'in terrorem' outlook, should prevail in our criminal courts. since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw: 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield: "If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences." 63. In the present case, the incident is occurred on 03.04.2002 and since then, the appellants are facing criminal lis. There is no allegation that in the meantime, they again involved in any other offence and presently, the accused persons are having innumerable responsibilities of their families and saddled in their family life, yet in view of the evidence available on record, and the manner in which 61 the offence is committed by the accused persons, it would not be appropriate to reduce the sentence awarded to the appellants for their undergone period. However, their sentence may be reduced to some extent, therefore, the sentence awarded to the appellants for the offence under Sections 147, 148 and 324 of IPC are hereby maintained. Under the peculiar facts and circumstances of the present case, the sentence awarded to the appellants No. 2 and 8 for the offence under Sections 307 of IPC and appellants No. 1 and 3 to 7 for the offence under Section 307/149 of IPC (i.e. R.I. for 07 years and fine of Rs. 5000/-, in default of payment of fine additional R.I. for 05 months) are reduced to the extent of R.I. for 03 years with fine of Rs. 10,000/- to each of the appellants. In default of payment of fine, the appellants shall further undergo R.I. for 02 months each. The fine amount shall be deposited within 04 months from today. The fine amount earlier deposited by the appellants, if any, shall be adjusted towards fine amount awarded by this Court. The total fine amount of Rs. 80,000/- shall be paid to the injured Shiv Gupta as compensation as provided under Section 395 of the Bharatiya Nagarik Suraksha Sanhita, 2023. 64. With the aforesaid modification of the sentence, the appeal is partly allowed. 65. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge ved