1 2025:CGHC:3380-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 879 of 2020 1 - Gandhoram S/o Pilluram Karanga Aged About 27 Years 2 - Dashmu Kachlam S/o Chaituram Aged About 28 Years 3 - Magdhu Karanga S/o Bhadu Karanga Aged About 50 Years 4 - Singaluram Kumeti S/o Ghadhvaram Kumeti Aged About 29 Years 5 - Ghasiyaram Salam S/o Malsai Salam Aged About 40 Years 6 - Dular Singh S/o Dasuram Aged About 20 Years 7 - Santu Karanga S/o Bisru Karanga Aged About 27 Years 8 - Sonu Karanga S/o Somra Karanga Aged About 20 Years 9 - Dalu Karanga S/o Ramadhar Karanga Aged About 30 Years 10 - Bhadaru Karanga S/o Manuram Karanga Aged About 50 Years 11 - Sanker Uike S/o Mangtu Uike Aged About 45 Years 12 - Ghasiram S/o Maharu Kaclam Aged About 45 Years 13 - Raijuram S/o Lakhmuram Aged About 23 Years 14 - Bulki Karanga S/o Sukalu Karanga Aged About 25 Years 15 - Basu Kachlam S/o Maharu Kachlam Aged About 38 Years 16 - Gangaram S/o Nehru Kachlam Aged About 35 Years 17 - Kave Kumeti S/o Dasu Kumeti Aged About 20 Years 18 - Santer Karanga S/o Bisaru Karanga Aged About 21 Years 19 - Sukman S/o Savis Karanga Aged About 20 Years 20 - Rainu Kaudhe S/o Kubur Aged About 22 Years 21 - Kolu Kaudho S/o Manku Kaudho Aged About 21 Years 22 - Peelu S/o Mahanguram Kachlam Aged About 19 Years 23 - Ghassuram Bui S/o Kupadhram Aged About 20 Years 24 - Pradeep S/o Puanu Kachlam Aged About 21 Years BABLU RAJENDRA BHANARKAR Digitally signed by BABLU RAJENDRA BHANARKAR Date: 2025.01.25 10:58:53 +0530 2 25 - Dhelu Karanga S/o Konda Karanga Aged About 22 Years 26 - Asadhu Karanga S/o Raju Karanga Aged About 35 Years 27 - Sonva Karanga S/o Komra Karanga Aged About 25 Years 28 - Sanauram Kaudho S/o Danu Kaudho Aged About 20 Years 29 - Rassu Salam S/o Nalsai Salam Aged About 27 Years 30 - Pitram Bui S/o Sukhram Bui Aged About 20 Years 31 - Dukalu Kumeti S/o Ghadhva Kumeti Aged About 35 Years 32 - Raisingh Bui S/o Late Lakhmu Bui Aged About 30 Years 33 - Ratan Singh S/o Sonu Karanga Aged About 28 Years 34 - Sudran S/o Mangalram Kachlam Aged About 19 Years R/o Village Mahka, P. S. Tehsil And District Narayanpur Chhattisgarh 35 - Chaitram Kachlam S/o Punauram Kachlam Aged About 28 Years 36 - Faguram S/o Soma Karanga Aged About 35 Years All R/o Village-Mahka, PS, Tehsil and District Narayanpur, C.G. --- Appellants versus State Of Chhattisgarh Through The PS-Narayanpur, District Narayanpur Chhattisgarh --- Respondent(s) CRA No. 699 of 2021 Ghassu S/o Rajuram Karanga Aged About 20 Years R/o Village- Mahka, P.S. Tehsil And District- Narayanpur, Chhattisgarh --Appellant Versus State Of Chhattisgarh Through The PS-Narayanpur, District- Narayanpur, Chhattisgarh --- Respondent(s) For Appellants : Mr.Shobhit Koshta, Advocate For Respondent(s) : Mr.Sanghrash Pandey, Government Advocate 3 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 20/01/2025 1. Since the aforesaid two criminal appeals have been filed against the impugned judgment dated 06.10.2020 passed by the Additional Sessions Judge, Kondagaon, in Sessions Case No.52/2015, they were clubbed & heard together and being disposed of by this common judgment. 2. Appellants-Gandhoram and 35 others have preferred Criminal Appeal No.879 of 2020 and appellant-Ghassu has preferred Criminal Appeal No.699 of 2021 under Section 374(2) of the CrPC questioning the impugned judgment dated 06.10.2020 passed by the Additional Sessions Judge, Kondagaon, District Kondagaon in Sessions Case No.52/2015, by which they have been convicted and sentenced in the following manner:- Sr. No. Conviction Sentence 1. Under Section 147 of the IPC RI for six months and fine of Rs.500/-, in default of payment of fine to further undergo RI for three months 2. Under Section 5 of the Tonhi Pratadana Act (Three counts) RI for three years and fine of Rs.500/-, in default of payment of fine to further undergo RI for three months under Section on each 4 counts 3. Under Section 302/149 of the IPC (Three counts) Imprisonment for life and fine of Rs.2000/-, in default of payment of fine to further undergo RI for six months on each count 4. Under Section 201/149 of the IPC (Two counts) RI for three years and fine of Rs.500/-, in default of payment of fine to further undergo RI for three months on each count 3. Case of the prosecution, in nutshell, is that the villagers of Ghadwaram Karanga’s family in village Mahka always used to call meetings in the village and accuse his wife Dashribai and daughter Ramvati of practicing black magic (jadu tona), but his family used to stop them. On 20.11.2014, at around 8 A.M., a meeting was called by the villagers in Ghotul in village Mahka, in which Ghadwaram’s family was also called to the meeting. Ghadwaram, his wife Dashribai, daughter Ramvati and her husband Manku @ Manu Uike, son Ranu Karanga, Smt.Bajaro, Smt.Jugri W/o Ranu Karanga were present in the meeting. Gandoram, Dashru Kachlam, Punau, Magdu, Siglu Kumeti, Ghasiya Salam, Santu Karanga, Sonu Karanga, Dassu Karanga, Mangal Karanga, residents of village Mahka Aamasar Panchayat were present. These people told Ghadwa Karanga family that you people are practicing black magic (jadu tona) in the village, due to which the villagers are troubled called them ‘Maro Salo Ko’, they started beating Ghadwaram, his wife Dashribai and daughter 5 Ramvati with bamboo and wooden sticks lying around and hands and fists. Ghadwa Karanga got injured in his left ear and started bleeding leaving him half dead, the said people forcibly took his wife Dashribai and daughter Ramvati to Dongri in the jungle after beating them with hands, fists and kicks. Due to excessive bleeding, Dashribai and Ramvati died on the way to the jungle. Other accused brought wood from the jungle and burnt the bodies of Dashribai and Ramvati by placing them on the wood. Their family members were pleading with folded hands to the accused not to burn them, but the accused did not listen and burnt them. The accused left Ghadwaram half dead and went away, who was brought back by his family from the spot and taken to Narayanpur Hospital for treatment on 23.11.2024, where he was declared dead by the doctor and this information was given to the Station House Officer of Police Station Narayanpur through ward boy Parmanand Nag (PW-1). 4. On the basis of the above information received from the hospital by the SHO of Police Station Narayanpur in connection with death of Gadwaram, Merg intimation (Ex.P-1) was registered in Narayanpur Police Station under Section 174 CrPC and for preparing the panchnama of the dead body of deceased Ghadwaram, notice (Ex.P-22) was issued to the witness and panchnama (Ex.P-25) was prepared. During the investigation of the above case, it was found by investigating officer Ashok Kumar Uikey (PW-11) that Dashribai and Ramvati were also murdered, 6 then on 24.11.2014 FIR in Crime No.175/14 under Sections 147, 148, 149 and 302 of the IPC and under Sections 4, 5 & 6 of the Tonhi Pratadna Act was registered in connection with the murder of above three deceased vide Ex.P-42. Regarding death of Dashribai and Ramvati, on 25.11.2014 under Section 174 CrPC, dehati marg information (Exs.P-45 and P-46 respectively) was registered on the spot in the presence of the Naib Tahsildar and others. On the basis of these, actual merg (Ex.P-47) and (Ex.P- 48) were registered in the police station. For preparing the panchnama of the burnt bodies of these two, notices (Exs.P-23 and P-24 respectively) were given to the witnesses by the then Nab Tahsildar Rohit Singh (PW-3) and panchnama of the burnt bodies (Exs.P-26 and P-27 respectively) was prepared. At the place where the bodies of deceased Ramvati and Dashribai were burnt after being beaten, on seeing their clothes and bangles etc., identification memos were prepared regarding the bodies being those of the above two (Exs.P-28 and P-31 respectively). Also, from the place where deceased Ramvati and Dashribai were beaten and burnt, about half a kilogram of ashes and bones and a piece of sari were seized and seizure memos (Exs.P-29 and P- 30 respectively) were prepared. 5. Bones with ashes of the above mentioned two dead bodies were sent for examination to Dr.Prabhakar Ghore (PW-5) along with a memorandum (Exs.P-32 and P-33), on which he advised for its chemical examination and gave a report (Exs.P-34 and P-35 7 respectively). Later, the bones with ashes of the abovementioned two dead bodies were sent to the Forensic Science Laboratory, Jagdalpur for chemical examination, from where the bones sent by Dr.Pawan Tekade (PW-12) were found to be the bones of women and the bones present in one package were found to be of women of age more than 20 years and the bones present in another package were found to be of women of age more than 18 years. 6. The statements of the witnesses were recorded under Section 161 CrPC. Memorandums (Exs.P-2 to P-11 respectively) were prepared for accused Gandoram, Dassu Kachlam, Punau Kachalam, Mangadu Karanga, Singlu Kumeti, Ghasiya Salam, Santu Karanga, Sonu Karanga, Dallu Karanga and Mangal Karanga and on the basis of information in the memorandum, wooden sticks were seized and seizure memos (Exs.P-12 to P-21 respectively) were prepared. After the proceedings of arrest of the accused, other necessary investigation was completed and the chargesheet was presented in the court of Chief Judicial Magistrate, Narayanpur, who in turn committed the case to the Court of Sessions, Kondagaon, from where the Additional Sessions Judge, Kondagaon received the case on transfer for trial. 7. After due investigation, all the appellants were charge-sheeted for the aforesaid offences in which they abjured their guilt and entered into defence stating inter-alia that they have not 8 committed any offence and they have falsely been implicated in crime in question. 8. In order to bring home the offence, the prosecution examined as many as 16 witnesses and exhibited 93 documents Exs.P-1 to P- 93. The defence has examined two defence witnesses namely Mer Singh Usare and Gandoram as DW-1 and DW-1 and exhibited the documents (Ex.D-1 to D-6) in their support. 9. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 06.10.2020, proceeded to convict the aforesaid accused persons for the aforesaid offences and sentenced them as aforementioned, against which, these two criminal appeals have been preferred. 10. Learned counsel for the appellants submits that learned trial Court failed to consider the fact that Ranu Karanga (PW-8) is not the eye witness of the incident as Smt. Jugri Bai (PW- 10) who is the wife of Ranu Karanga has stated that at the time of incident, Ranu Karanga, her husband was with him at home at the time of incident which seriously dent the credibility of evidence of Ranu Karanga (PW-8) as eye witness. Learned trial Court committed an error in not appreciating the fact that the evidences of eye witnesses are self-contradictory in nature to each other statement and hence, the evidence of eye witnesses are not reliable. He further submits that learned trial Court was wrong in relying on the evidence of eye witnesses ignoring the material contradiction 9 in the statement of eye witnesses and their 161 CrPC statements which make the testimony of eye witnesses as doubtful. Learned trial Court failed to consider the fact that there is an unexplained delay of about 4 days in lodging of the FIR which creates clouds over the prosecution story. He also submits that learned trial Court failed to appreciate that even as per the version of eye witness, deceased Ghadhvaram died after 13-14 days after the meetings which shows that the date of incident was not 20.11.2014 as stated by the prosecution and there is a huge unexplained delay in lodging of the FIR which renders the prosecution case doubtful. Learned trial Court failed to appreciate that in case of presence of large number of accused and large number of victims, the principle of caution must be applied and conviction can be sustained only if two or more prosecution witnesses have supported the prosecution case entirely. In the present case, the evidence of eye witnesses are contrary to each other. Hence, the impugned judgment is liable to be set-aside. He contended that learned trial Court has failed to appreciate that mere presence is not sufficient for conviction under Section 149 of the IPC. In the present case, the prosecution witnesses have themselves stated that it is compulsory for villagers to attend the village meeting, otherwise fine is imposed on them. Hence, the mere presence of the accused persons at village meeting on date of incident is not sufficient for their conviction. Learned trial Court failed to appreciate that common object of the unlawful assembly 10 was to cause death of the deceased. However, no evidence has been adduced by the prosecution to show that the village meeting was conveyed for the purpose of causing death of deceased persons and the accused persons were not armed with dangerous weapon which is also self evident that the deceased Ghadhvaram only received simple injury and hence, in absence of any common object to murder the deceased persons, no conviction can be sustained under Section 302 read with Section 149 of the IPC. Learned trial Court failed to appreciate that only overt act against appellants No.10 to 37, is that they collected fire woods for burning two deceased persons and such act does not comes under the purview of Section 302 of the IPC as no death of the deceased person is punishable under Section 302 of the IPC. Learned trial Court failed to consider that there is no cogent evidence to prove the bones found were that of the deceased persons in view of statement of Dr. Pawan Tekade (PW-12) who has given his opinion on the basis of physical verification which is subject to scrutiny and not reliable to establish guilt. As suggested by Dr. Pawan Tekade (PW-12), the prosecution has not done any DNA test and blood test to confirm that the bones seized is of the deceased persons and in absence of proof of body of crime, no conviction can be sustained. He lastly contended that learned trial Court has failed to consider the cause of death of deceased Ghadvaram was unknown as stated in postmortem report and hence, no offence under Section 302 of 11 the IPC is made out against the accused person. As such, the criminal appeals deserve to be allowed and the impugned judgment deserves to be set aside. 11. On the other hand, Mr.Sanghrash Pandey, learned Government Advocate appearing for the respondent/State supports the impugned judgment and submits that the prosecution has proved its case beyond reasonable doubt and the learned trial Court after considering all incriminating materials and circumstances available against the accused persons rightly convicted them for the aforesaid offences. Hence, the instant criminal appeals being bereft of merits are liable to be dismissed looking to the commission of offence done by the accused persons. 12. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 13. It is the case of the prosecution and the finding recorded by the trial Court itself in para 47 of the impugned judgment that apart from accused No. 1 to 9, other accused persons role was in collecting the woods required for burning the bodies of the deceased and further in para 34 of the impugned judgment, it has been held that no living person was burnt alive. However, the learned trial Court has only for the reasons that accused No.-10 to 36 and Ghassu (Accused in CRA No.- 699/2021) have assisted in collecting woods used for burning the dead bodies and hence, 12 they are guilty of offence under Section 302 of the IPC is totally perverse and against the provision of law. 14. While dealing with the similar issue in the matter of State of Uttar Pradesh v. Kenchu and Others, 2014 SCC OnLine All 14894 : (2014) 87 ACC 459, the Allahabad High court held as under-: “29. There is no evidence on record that except Chokhra any other accused assaulted Ghanshyam at the cobbler shop but there is evidence that after the death of Ghanshyam he was taken by all the accused upto Chamrauwa well wherein the body of Ghanshyam was thrown by them. Obviously, it could have been for the purpose of causing disappearance of evidence of offence or to screen offender Chokhra from legal punishment in the crime of murder of Ghanshyam. Kenchu had also sustained injury in his hand in the scuffle and the possibility that he sustained this injury when he was rescuing the victim from the clutches of Chokhra at his shop cannot be ruled out and after the incident of murder to avoid any kind of embarrassment these accused tried to disappear the evidence of murder. A detailed cross-examination has been made from all the aforesaid three prosecution witnesses on this point but nothing material could be fetched out to disbelieve this testimony on the issue of their act of disappearing the dead body by throwing it in the well which is a clear cut case to hold them guilty under section 201 I.P.C. The finding recorded by the learned Trial Court to this effect does not suffer from any perversity or illegality. 35. The above provision makes it clear that before convicting the accused with the aid of section 149 IPC, the Court must give clear finding regarding nature of 13 common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were present would not be sufficient to prove common object. Section 149 IPC creates a specific offence and deals with punishment of that offence. Whenever the Court convicts any person or persons of an offence with the aid of section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under section 149 IPC, the essential ingredients of section 141 IPC which defines ‘unlawful assembly’ must be established. 41. Mere presence of accused Kenchu, Gotiram, Kishora and Rajoo alias Rajendra at cobbler's shop i.e. the place of incident is not sufficient to attract the rigour of section 149 I.P.C. because the circumstances do not point out that accused Gotiram and three others had formed an unlawful assembly with main accused Chokhra to commit the murder of Ghanshyam or they had any knowledge that Chokhra would commit his murder. Even Kishora does not appear to have shared the common object to commit the murder of Ghanshyam. The aforesaid observation of this Court is based on the fact that there is no evidence on record to this effect. In this view of the matter the offence of murder of Ghanshyam does not appear to have been committed in prosecution of the common object of all the five accused nor there is evidence to hold that all the five accused had formed an unlawful assembly to commit the murder of Ghanshyam or being the member of an unlawful assembly, they knew the murder of Ghanshyam likely to be committed in 14 prosecution of that object. Since, Chokhra was not a member of an unlawful assembly and there was no common object of any such assembly to commit the murder of Ghanshyam nor the members of the assembly had knowledge of likelihood of the commission of the offence in question in prosecution of the common object, the act of Chokhra committing murder of Ghanshyam cannot be safely attributed to Goti Ram accused with the aid of section 149 I.P.C. and, therefore, accused Gotiram would not be vicariously liable for offence actually committed by Chokhra.” 15.Whether the members of unlawful assembly can be convicted for different offence for different act done in the course of same transaction in view of the provision contained in Section 149 of the IPC imposing vicarious liability on all members of unlawful assembly? 16.In this context, the Hon’ble Supreme Court in the matter of Musakhan And Ors. vs State Of Maharashtra, AIR 1976 SC 2566 held as under-: “5. The Additional Sessions Judge as also the High Court, however, do not appear to have made a correct approach in examining the individual case of the accused, particularly with reference to their actual presence or participation in the incident in question. It is true that having regard to the background against which the events took place all the incidents starting from the National Hotel and ending with the chawl of Jogendra Singh were parts of the same transaction, nevertheless they were separate incidents in which different members of the mob had participated, in these circumstances, 15 therefore, without there being any direct evidence about the actual participation of the appellants in all the incidents it could not be inferred as a matter of law that once the appellants were members of the mob at the National Hotel they must be deemed to have participated in all the other incidents at the Engineering College Hostel. Bharat Lodge and the chawl of Jogendra Singh. It is well settled that a mere innocent presence in an assembly of persons, as for example a bystander, does not make the accused a member of an unlawful assembly, unless it is shown by direct or circumstantial evidence that the accused shared the common object of the assembly. Thus a court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all these stages. Such an evidence is wholly lacking in this case where the evidence merely shows that some of the accused were members of the unlawful assembly at one particular stage but not at another. In these circumstances, therefore, the accused, who were not present or who did not share the common object of the unlawful assembly at other stages cannot be convicted for the activities of the assembly at those stages. In view of this error committed by the High Court 16 it has become necessary for us to examine the evidence on the limited question as to which of the accused had actually participated in the incident at the Engineering College, Bharat Lodge and the chawl of Jogendra Singh where acts of incendiarism had taken place. 14. The convictions under Sections 149/395, I.P.C. as against A-ll, Mohd. Eqbal, A-20 Saber Ali Khan and A-22 Mohd. Azam Khan are altered to that under Section 392, I.P.C. and their sentence is reduced from two years to one year's rigorous imprisonment under this section. As there is no reliable evidence to prove the participation of any of the appellants in the incident of arson at the Chawl of Jogendra Singh, the convictions and sentences imposed on all the appellants under Sections 149/435, I.P.C. are hereby set aside.” 17. In the matter of Shambhu Nath Singh and Ors. v. State Of Bihar, AIR 1960 SC 725; it was held as under-: “6. Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence, and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in 17 prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. But "members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly." Jahiruddin v. Queen Empress, ILR 22 Cal 306. 7. Therefore a conviction for an offence under Section 326 read with Section 149 of the Indian Penal Code may be recorded against the members of an unlawful assembly, even if it be established that an offence of murder was committed by a member of that assembly. The offence under Section 326 of the Indian Penal Code is in its relation to the offence of murder a minor offence and the language used in Section 149 of the Indian Penal Code does not prevent the court from convicting for that minor offence merely because an aggravated offence is committed. 14. By Section 149 the vicarious liability of the members for offence committed in? prosecution of the common object or for offences which were known to be likely to be committed by the members of the unlawful assembly is declared. The offence of murder being in its nature an aggravated form of the offence of grievous hurt, we are unable to hold that because no offender was proved to have caused grievous hurt to the victims, the conviction 18 of accused Nos. 2 to 8 and 14 for an offence under Section 326 read with Section 149 of the Indian Penal Code is illegal.” 18. Applying the same principle, the Supreme Court in the matter of of Bhupendra Singh and Others v. State of UP, AIR 2009 SC 3265, held as under:- “16. The emphasis in Section 149 IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine 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 in Section 141………... The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur with it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 has to be strictly construed as equivalent to "in order to attain the common object". It must be immediately 19 connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and their knowledge, possessed by each member of what is likely to be committed in prosecution of their common object which may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly.” 19.Applying the above mentioned principle of law, the Supreme Court in the matter of State Of Gujarat v. Chandubhai Malubhai Parmar & Ors, AIR 1997 SC 1422, held as under-: “22. It is no doubt true that these eye witnesses had deposed that A-34, A-35 and A-36 were members of the unlawful assembly/riotous mob which was chasing the deceased and the other injured persons of the Vankar community from the bus stand until they reached Vankarvas but when the mob came near the house of Vinodbhai and thereafter set his house on fire and other members of the riotous mob continued to chase Vankars and thereafter they heard the firing sounds coming from that direction. The question that needs to be answered on these proved facts is as to whether A-34, A-35 and A- 36 could be said to have shared the common object of committing murders with A-19, A-20 and A-21 who fired from their fire arms killing Prabhudas and Pochabhai as also other appellants who caused an assault on 20 Khodabhai and Mohanbhai with the deadly weapons as a result of which they also died on the spot. On the evidence on record, we find, it cannot be said to be conclusively established that A-34, A-35 and A-36 also shared the common object to commit the above murders of four persons. The time factor in this behalf assumes great importance because when A-34, A-35 and A-36 were engaged in setting the house of Vinodbhai on fire the other appellants committed the murders of four persons by using fire arms and other deadly weapons. The trial court convicted A-34, A-35 and A-36 for committing the murders of Prabhubhai, Pochabhai, Khodabhai and Mohanbhai with the aid of both Sections 149/34 IPC. On the proved facts we are, however, unable to affirm the conviction of A-34, A-35 and A-36 for the above murders either with the aid of Section 149 or section 34 IPC but their conviction and sentence under Section 436/34 IPC must stand confirmed. It is no Doubt true that these three accused persons while chasing Vankars caused injuries to various persons of the Vankar community for which they have been rightly convicted and sentenced by the trial court under sections 324/149 and 325/149 IPC. The appellants being the members of an unlawful assembly committed the offence of rioting and have been rightly convicted under sections 147 and 148 of the IPC. In view of our final analysis of the material on record we are of the considered view that the conviction and sentence of A-34, A-35 and A-36 cannot be sustained under section 302/149 of the IPC and consequently it is set aside, however their conviction and sentence for the other offences are confirmed. 21 20.Furthermore, the Supreme Court in the matter of State Of Karnataka v. Mallu Kallappa Patil And Others, AIR 1994 SC 784, held as under-: “7. It cannot be said that all of them were members of the unlawful assembly with the common object to attacking the deceased. It is during the quarrel that took place some of the accused particularly A-4 and A-9 committed certain acts of violence on the deceased and P.W. 1. Therefore, the High Court has rightly held them guilty for their individual acts. In a situation like this, the Court has always to keep in mind by-standers or others coming from the village cannot be said to be members of the unlawful assembly with the common object of attacking the deceased as well as P.W. 1. The individual acts have to be taken into consideration to avoid large scale convictions of the persons by virtue of the application of Section 149, I.P.C. The view taken by the High Court appears to be quite reasonable.” 21.In the instant case, the bones which were seized by the police were examined by Dr. Pawan Tekade (PW-12) and he has stated in para 4 of his evidence that one of the bone is not that of human. Moreover, in para 9 of his evidence, he has recommended for blood grouping and DNA test, however, the same has not been conducted by the prosecution. Further, the most relevant is the examination of bones were done by physical examination and no forensic examination was done (Para 11 of the statement), which shows that the prosecution has failed to prove the bones seized were those off the deceased and in 22 absence of the same, the conviction imposed on the appellants is unsustainable in eyes of law. 22.In the matter of Bhupendra Singh And Ors v. State Of Uttar Pradesh, AIR 1991 SC 1083, it was held by the Supreme court as under-: “13. It appears that only the bones stated to have been recovered were sent for chemical analysis and the report of the serologist was that it was not possible to give any opinion regarding the origin, sex and age. The report had not even stated that they were human bones. Though PW 10 had stated that there were with him two others at the time and PW 17 had taken PW 10 and the said two others also to the place where the body was stated to have been burnt, they had not been examined. We have read the evidence carefully and the evidence also does not impress us that he is telling the truth. 14. In the result we set aside the conviction of the appellants under section 201, IPC. The conviction of the first appellant is modified into one under section 307, IPC and we sentence him to 10 years rigorous imprisonment. The bail bonds of appellants 2, 3 and 4 are cancelled. The first appellant is directed to surrender.” 23.In the present case, learned trial Court has convicted the accused based on the evidence of eye witnesses Mankuram (PW-4) and Ranu Karanga (PW-8). 24.Mankuram (PW-4) (husband of deceased Rambati) has stated in para 1 of his examination-in-chief that the incident occurred around two years ago, on a Thursday during the Diwali month. A 23 meeting was held at Ghotul in village, which was attended by villagers, including Gandoram, Dallu, Punau, Dashnuram, Mangdu, Singalu, Ghasiya, Dular, Santu, Mangel and Sonu. Other villagers were present, but he does not know their names. These eleven individuals assaulted his family members. The meeting started at 5 A.M. Apart from the eleven accused, others present included Raisingh, Pradeep, Sukman, Raiju, Bhelu, Bulkuram, Santer, Chaitram, Vasu, Kaveram, Sanker S/o Mangtu, Piluram and Rattu. However, they did not participate in the assault. He, his wife Ramvati, mother-in-law Dasri Bai and father-in-law Ghadvaram attended the meeting upon their request. The eleven accused and villagers made an allegation of his family members of practicing black magic (jadu tona). When his wife and in-laws denied the allegations, the eleven individuals armed with sticks beat Ramvati, Dasri Bai, and Ghadvaram. His father-in-law received severe blows and fell. Ramvati and Dasri Bai were tied up. They were carried to a hill, where wood was collected and both were burned together. The eleven accused and villagers including children were present. In para 3 of his cross-examination, he has admitted that Raisingh, Pradeep, Sukman, Renju, Bhelu, Bulku Ram, Santer, Chaitram, Vasu, Kave Ram, Sanker’s son Mangtu, Piluram, Rattu were also present in the meeting along with the villagers. He has also admitted that apart from 11 people whose names he has mentioned, no one present talked to them. In para 4 of his cross-examination, he has 24 admitted that there was a lot of noise in the meeting. He has also admitted that everyone was talking to each other and it was not clear who was saying what. He has denied that there was lot of noise of “kill” “kill” in the meeting, hence, there was a stampede and hence it was not possible to see who killed whom. 25.Ranu Karanga (PW- 8) (son of deceased Gandvaram) has stated in para 2 of his examination-in-chief that Gandoram, Dasnuram, Sonuram and Mangduram assaulted the deceased persons and para 8 of his cross-examination, he has stated that when the above persons were assaulting the deceased, others accused were sitting silently. Smt. Jugri Bai (PW-10) has stated in para 10 of her cross-examination that Ranu Karanga is her husband and he was at home and was not present at the time of incident. 26. Parmanand Nag (PW-1) is the lodge of the FIR. However, in the cross-examination, he has denied the fact that he has lodged the FIR against the accused persons. 27. Dasruram (PW-2) is the witness of memorandum and seizure and identification proceedings and he has been declared hostile and has not supported the prosecution case and has also denied the incident and his presence on the date of incident. 28.That, the Hon’ble Supreme Court in the case of Masalti and others v. State of Uttar Pradesh, AIR 1965 SC 202; held in Para 16 as under-: “16. That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and 25 a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test.” 29. Considering the arguments advanced by the learned counsel for the parties, the law laid down by the Supreme Court in the above- stated judgments (supra), para 1 of evidence of eyewitness Mankuram (PW-4), also considering the evidence of Ranu Karanga (PW-8) and material available on record, we are of the considered opinion that the prosecution has proved its case against appellants No.1 to 9 of Criminal Appeal No.879/2020 i.e. Gandhoram, Dashmu Kachlam, Magdhu Karanga, Singaluram Kumeti, Ghasiyaram Salam, Dular Singh, Santu Karanga, Sonu Karanga and Dalu Karanga and the trial Court has rightly convicted and sentenced them for offence under Sections under Sections 147 of the IPC, Section 5 of the Tonhi Pratadna Nivaran Act (three counts), Section 302/149 of the IPC (three counts) and Section 201/149 of the IPC (two counts). As such, their appeals deserve to be dismissed. 30. Considering the evidence of eyewitnesses i.e. Mankuram (PW-4) and Ranu Karanga (PW-8), no any incriminating articles have been seized from the possession of appellants No.10 to 36 of 26 Criminal Appeal No.879/2020 i.e. Bhadaru Karanga, Sanker Uike, Ghasiram, Raijuram, Bulki Karanga, Basu Kachlam, Gangaram, Kave Kumeti, Santer Karanga, Sukman, Rainu Kaudhe, Kolu Kaudho, Peelu, Ghassuram Bui, Pradeep, Dhelu Karanga, Asadhu Karanga, Sonva Karanga, Sanauram Kaudho, Rassu Salam, Pitram Bui, Dukalu Kumeti, Raisingh Bui, Ratan Singh, Sudran, Chaitram Kachlam, Faguram and appellant-Ghassu of Criminal Appeal No.699/2021 and the fact that the prosecution has utterly failed to prove their involvement in crime in question, we are of the considered opinion that the trial Court has committed grave legal error in convicting them for offences under Sections 147 of the IPC, Section 5 of the Tonhi Pratadna Nivaran Act (three counts), Section 302/149 of the IPC (three counts) and Section 201/149 of the IPC (two counts) as benefit of doubt ought to have been given to them. 31. For the foregoing reasons, Criminal Appeal No.879/2020 filed on behalf of appellants-Gandhoram, Dashmu Kachlam, Magdhu Karanga, Singaluram Kumeti, Ghasiyaram Salam, Dular Singh, Santu Karanga, Sonu Karanga and Dalu Karanga is dismissed. However, Criminal Appeal No.879/2020 filed on behalf of appellants-Bhadaru Karanga, Sanker Uike, Ghasiram, Raijuram, Bulki Karanga, Basu Kachlam, Gangaram, Kave Kumeti, Santer Karanga, Sukman, Rainu Kaudhe, Kolu Kaudho, Peelu, Ghassuram Bui, Pradeep, Dhelu Karanga, Asadhu Karanga, Sonva Karanga, Sanauram Kaudho, Rassu 27 Salam, Pitram Bui, Dukalu Kumeti, Raisingh Bui, Ratan Singh, Sudran, Chaitram Kachlam & Faguram and Criminal Appeal No.699/2021 filed on behalf of appellant-Ghassu are allowed and their conviction & sentence under Sections 147 of the IPC, Section 5 of the Tonhi Pratadna Nivaran Act (three counts), Section 302/149 of the IPC (three counts) and Section 201/149 of the IPC (two counts) are hereby set aside. They are on bail. They are not required to surrender. Their bail bonds are cancelled and sureties stands discharged. 32. Keeping in view the provisions of Section 437-A CrPC (now Section 481 BNSS), the accused-appellants, namely, Bhadaru Karanga, Sanker Uike, Ghasiram, Raijuram, Bulki Karanga, Basu Kachlam, Gangaram, Kave Kumeti, Santer Karanga, Sukman, Rainu Kaudhe, Kolu Kaudho, Peelu, Ghassuram Bui, Pradeep, Dhelu Karanga, Asadhu Karanga, Sonva Karanga, Sanauram Kaudho, Rassu Salam, Pitram Bui, Dukalu Kumeti, Raisingh Bui, Ratan Singh, Sudran, Chaitram Kachlam, Faguram and appellant-Ghassu of Criminal Appeal No.699/2021 are directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- each with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant 28 of leave, the aforesaid appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 33. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action forthwith. 34. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Bablu