JUDGMENT S.I. Jafri, J.
1. The instant appeal has been preferred by Markandey Chand, Taj Narain, Chand, Raj Narain Chand, Ram Bhajan Chand, Ram Kripal, Awadhesh, Bechan Yadav, Bela, Girja, Mulhu, Sudhakar Dutt Pandey, Chakdharadhari, Ramdhan, Kamla, Sri Krishan Tiwari, Dasgun and Chhotey Lal challenging their convictions and sentences recorded by Sri S.P. Lal, II Additional Sessions Judge, Gorakhpur vide his judgment and order dated 10th Dec., 1986 in Sessions Trial No. 62 of 1983, connected with S.T. No. 467 of 1982 and S.T. No. 598 of 1982. All the enumerted appellants were convicted under Sections 147 and 332/149, I.P.C. and they were sentenced to undergo R.I. for two years and three years respectively. Tej Narain Chand appellant was further convicted under Section 392, I.P.C. and sentenced to three years' R.I. coupled with a fine of Rs, 10,000/- and in default of payment of fine, he was sentenced to one year's simple imprisonment. Together with the appellants, Ram Garak Chand, Ram Sanchi, Nar Singh Chand, Ram Daras Chand, Dinanath Yogendra, Bajrangi Lal, Girish Shukla and Ram Murat had also been prosecuted, but they were let off by the trial Court. There was one more accused, namely, Noor Aalam along with the aforesaid accused persons, but the case against him abated on account of his dying a natural death during the course of trial itself.
2. The events preceding the date of occurrence are that on 20-5-1980, Shri Jagjivan Ram, Ex. Deputy Prime Minister and the then President of Congress(Urs) was scheduled to pass through Beura Chauraha within the Circle of police station Gola, District Gorakhpur on way to Varanasi in connection with election compaign for U.P. Assembly. Markandey Chand, appellant was one of the official candidates of the Congress(Urs) party for the election of M.L.A. It. is alleged that appellant Markandey Chand had got a rostrum erected near the aforesaid crossing for addressing the gathering by Sri Jagjivan Ram.
3. It. is said that at about 11.45 a.m. on 20th May 1980, Shri Jagjivan Ram arrived by Car at the aforesaid crossing escorted by Security guards. There was a heavy rush of people at the place. Sri Jagjivan Ram was accompanied by a V.I.P. escort and District Officials were also accompanying him. According to one estimate about 500 to 600 people had collected at the place. The rush of the people was so heavy at the crossing that the Road leading to Varanasi was completely blocked. It, is also alleged that there was no scheduled programme for addressing the gathering at Beura Crossing by Jagjivan Ram, but Markandey Chand appellant and his followers by blocking the road, wanted his Leader Sri Jagjivan Ram to stop and address the gathering from the rostrum erected there. Sri Jagjivan Ram was not agreeable to stop and address the gathering out of his anxiety to reach Varanasi at the earliest in order to address a preparranged meeting there Consequently, Sri Jagjivan Ram and his Driver both collected upon Mahima Rai, Station Officer, police Station Gola, District Gorakhpur, who was on duty there, to clear the crowd mobbing his car in order to facilitate his onward journey to Varnasai. On being called upon, complainant Mahima Rai, Station Officer along with his police force, swung into action dispersing the crowd and cleared the road, with the result that the Car of Sri Jagjvan Ram and other vehicles security guards, began to move on. At the same time, Markandey Chand, appellant, incited and exhorted his companions to kill Mahima Rai Station Officer on duty at the place in order to stop him from clearing the way for the Car to pass on. Mahima Rai opened fire by his revolver on police party. On being exhorted and incited by Markandey Chand, Tej Narain Chand, appellant brother of Markandey Chand fell upon Mahima Rai and snatched the Service Revolver of Mahima Rai. At the same time 40 to 50 people including the appellants, formed an unlawful assembly and mounted a concerted assault on Mahima Rai and his subordinate constables by means of kicks and fists as well as Denda resulting in injuries to Mahima Rai and the other police personnels on duty with Mahima Rai, namely, Sub-Inspector Triveni Singh, Chandi Prasad Misra, Ramadhan Tiwari and P. N. Tiwari, constables.
4. After assaulting the complainant and his subordinates, all the appellants bolted away from the scene of occurrence along with the Service Revolver of Sub-Inspector.
5. After the occurrence, Mahima Rai went to Hospital and got his injuries examined by Dr. H. N. Misra, P.W. 2, Medical Officer, Primary Health. Centre Gola at 12 in the day. At the same time, injuries of his subordinate were also examined by the aforesaid Doctor.
6. On examination, Dr. H.N. Misra, found the following injuries on the person of Mahima Rai, Station Officer, P.S. Gola, District Gorakhpur.
1. A lacerated wound on skull 9 cm. above the right ear measuring 1,7 cm. x 0.3 cm. sculp deep.
2. A contused swelling on the forehead 3 cm. above the nose of measuring 9 cm. x 4 cm. lacerated wound 1/2 cm, x ,03 cm x 0.2 cm.
3. An abrasion on right check 1 cm. above left right and of mouth measuring 5 cm. x 1 cm.
4. Abrasion on angle of left mobile measuring 2 cm. x 1/2 cm.
5. An abrasion on right side of neck 8 cm. below ear measuring 10 cm. x 2 cm.
6. Abrasion on back of right forearm 1 1/2 cm. below the elbow joint measuring 10 cm x 2 1/2 cm.
7. On examination of the injuries of constable Ram Adhar Tiwari, the following injuries were found by the Doctor which had been examined at 12.15 in the day.
1. A contused swelling left side of chest 3 cm. below the vertebra measuring 4 cm x 2 cm.
2. A contusion back of chest 10 1/2 cm. below the angle of left scapula measuring 7 cm x 2 cm.
8. The aforesaid Doctor also examined the injuries on the person of constable Chandi Prasad which are as follows:
1. A contusion on middle aspect of left 14 cm. above the ankle joint measuring 4 cm x 2 cm.
Injury on the person of S.I., Triveni Singh was examined at 12.30 in the day and following injury was found by Dr. H. N. Misra.
A contusion on back of skull 4 cm. below the left ear measuring 3 cm. 2 1/2 cm.
9. Likewise, the aforesaid Doctor also examined the injuries on the person of Constable Paras Nath Tiwari at 12,40 in the day and he found the following injuries on his person.
1. Contusion on back of right side of chest 8 cm. beneath the top of shoulder joint measuring 3 cm x 2 cm.
2. Contusion in front of right left 16 cm below the knee joint measuring 2 cm. x 1 cm.
3. Abrasion in part of left knee joint measuring 2 cm. x 2 cm.
After having himself medically examined, Mahima Rai complainant, came to the police station Gola situated at a distance of about 2 furlongs from the place of occurrence and lodged a written report of the occurrence at the Police Station at 1.15 p.m. Head constable Riyaz Hussain P.W. 9, prepared a Chik report and registered a case on the basis of the aforesaid written report, Under Section 149/307/332/ 395 and 397, I.P.C. against 33 named persons including the appellants and 20 to 25 unknown persons.
10. The investigation of the case was taken up by Kapil Deo Misra P. W. 6. who recorded the statement of Mahima Rai and the injured witnesses at the police station. Thereafter, Kapil Deo Misra, went to the place of occurrence where he recorded the statement of other witnesses. He also inspected the site prepared a site plan. Thereafter, Kapil Deo Misra made a frantic search of the accused persons, but they were now here found, Later on, investigation of the case changed hands and was taken up by Bhagwati Singh, P.W. 8, who recorded the statements of the wit nesses including Kapil Deo Misra, the previous Investigating Officer. After concluding the investigation, he submitted a charge sheet in the Court on 31-12-1981 against the accused persons except Dasgun. Later on, Kharaq Bahadur Singh, Inspector C.B. C.I.D., after concluding investigation also submitted a charge-sheet against the accused Dasgun in the court on 9-9-1981.
11. The accused persons pleaded not guilty to the charge-quipping that they had been falsely implicated in the case as a result of enmity. In their defence, they denied to have inflicted any injury. The accused Tej Narain Chand also denied to have snatched the Service Revolver of Mahima Rai. However, in their defence, the accused did not examine any witness to buttress their defence.
12. The trial Court after considering the prosecution evidence produced in the case, arrived at a conclusion that the prosecution had succeeded in proving the guilt against the appellants and convicted and sentenced the appellants as stated supra However, the trial court found the aforementioned nine accused persons not guilty of any offence and accordingly acquitted them from the charges levelled against them.
13. In support of its case, the prosecution examined nine witnesses in all and out of them, Mahima Rai, P.W. 1, Bachu Yadav P.W. 3, Somanath P.W. 4 and Chandi Prasad Mishra P.W. 5 as well as Parasanath Tiwari P.W. 7 were examined as witnesses of the occurrence.
14. Out of the aforesaid set of ocular witnesses, three witnesses, namely, Mahima Rai, Chandi Prasad Mishra and Parasnath Tiwari had sustained injuries,
15. Mahima Rai, P.W. 1, whose statement I take up first for scrutiny, has deposed that at the relevant time he was posted as station officer of Police Station Gola and on the day of occurrence, Sri Jagjivan Ram, the Ex Prime Minister of India, had to pass through Beura crossing at Gola on way to Varanasi in order to attend a Scheduled meeting. On account of the passing of Sri Jagjivan Ram through Beura crossing Gola, he along with S.I, Triveni Singh, Head Constable Somanath and nine other constables, including Ram Adhar Tiwari Paras Nath Tiwari, Bechu Yadav, Chandi Prasad Misra and others, were deputed on the said crossing for ensuring law and order situation at the place. It was further deposed by the witness that accused Markandey Chand had erected a rostrum at Beura crossing and people including the supporters of Markandey Chand had collected there in large numbers. There was a plan to stop and make Sri Jagjivan Ram to address the gathering collected there and in pursuance of the said plan, the supporters of Markandey Chand including Markandey Chand himself, stopped the Car carrying Sri Jagjivan Ram on arrival at Beura crossing. As the Car carrying Sri Jagjivan Ram was stopped and mobbed by the crowd, the Driver of the Car called the witness and conveyed to him that there was no scheduled programme of Sri Jagjivan Ram to stop at the crossing delivering any speech and that he (Inspector Mahima Rai) should clear the road so that onward journey to Varanasi may be resumed. On being directed by the Driver, he along with his police force, began to disperse the crowd to clear the road with the result that the Car carrying Sri Jagjivan Ram began to move on. On seeing that the Car was being facilitated to move on, Markandey Chand exhorted and incited his men to kill the witness (Mahima Rai) equipping that who was he to clear the way and interfere in his functions. On this exhortation, all the appellants including those acquitted accused and 20-25 unknown persons attacked the Police personnel who were busy in clearing the way for free passage of the Car carrying Sri Jagjivan Ram, In the melee which followed in which the accused persons were attacking the Police personnel, Tej Narain Chand, appellant attacked him (Mahim Rai) and snatched his service Revolver. In the Melee Markandey Chand, Appellant had also fired a shot from his revolver on the police party. It was further deposed by the witness that after inflicting injuries on him and the aforesaid police personnel, the accused succeeded in escaping from the place of occurrence along with his service revolver. He further deposed that out of the accused persons, Ram Bhajan assaulted him by means of a Danda and rest of the accused persons attacked him by means of fists and kicks etc. It is further deposed by the witness that on being intervened by the security guards escorting Sri Jagjivan Ram and other persons, he was rescued from further assault and all the accused persons bolted away from the scene of occurrence along with his revolver. After the occurrence, he went to Primary Health Centre, Gola where he got his injuries examined. The injuries sustained by Triveni Singh S.I. Rum Adhar Tiwari, Chandi Prasad Misra and P. N, Tiwari. Constables were also examined by Dr. H. N. Misra at Primary Health Centre Gola. Thereafter, he got a report of the occurrence prepared and handed over the same at the Police Station at 1.15 p.m. the same day. On the basis of the said report a Chik report was prepared and case Under Section 149, 307, 332, 395, 397, I.P.C. was registered against as many as 33 named persons in addition to 20 to 25 unknown persons.
16. The evidence of Mahima Rai P.W. 1. is corroborated in all material particulars by the evidence of Bechu Yadav P.W. 3, Somanath P.W. 4. Chandi Prasad Mishra P.W. 5 and Paras Nath P.W. 7.
17. Thus the conviction of the appellants in the instant case, hinges on the testimony of Police witnesses inasmuch as the public witness viz. Ashok Dubey. Chhavendra Mishra, Shyam Narain Singh, Swaraj, Ram Chet Mishra, Mata Badal and others, who were cited in the First Information Report to have witnessed the occurrence and intervened in the scuffle, were not examined by the prosecution before the trial court to corroborate the testimony of the aforesaid police witnesses.
18. Out of the aforesaid police witnesses, Somanath P.W. 4 did not name any accused persons except Tej Narain Chand. In view of the fact that no identification parade was held to test the power of identification of the witness, the evidence of Somanath P.W. 4 is completely valueless to the prosecution inasmuch as the evidentiary value to be attached to his statement has absolutely gone considering that it received no corroboration from the test Identification Parade which admittedly had not been held.
19. Sri G.S. Chaturvedi, the learned Counsel for the appellants submitted that Mahima Rai is nut a wholly reliable witness considering the fact that his statement to the effect that hew as fired at by Makandey Chand by means of a Revolver, has not been given any credence by the trial Court, notwithstanding the fact that he is an injured witness. In the like manner, the evidence of Bechu Yadav P.W. 3 Somanath P.W. 4, Chandi Prasad Misra P.W. 5, and Paras Nath Tiwari P.W. 7, has not been given any credit in so far as t hey asserted that Markandey Chand had fired at Mahima Rai. Under the circumstances Bechu Yadav, Somnath, Chandi Prasad Mishra and Paras Nath Tiwari also cannot be held to be wholly reliable witnesses and for the sake of placing any reliance on their testimony, independent corroboration is necessary which is wanting in this case. The learned Counsel further submitted that in this case, 28 persons were put on trial along with the appellants and nine of them as aforesaid were acquitted by the trial court on account of a suspicion raging the mind of the trial court regarding their being involved in the occurrence. I have gone through paragraph 40 of the judgment rendered by the trial court in which the trial court had mentioned about its entertaining suspicion regarding the involvement of the aforesaid nine accused persons in the case and consequently, without dwelling on the reasons resulting in his suspicion, acquitted them of all the charges. The learned Counsel further submitted that all the witnesses had named the appellants and also the aforesaid nine accused persons in their evidence and once nine of them were given benefit of doubt on the basis of a suspicion occurring in the mind of the court, the evidence of the said witnesses cannot be held to be trustworthy as against rest of the appellants and under the circumstances, the appellants are also liable to be acquitted. This argument of the learned Counsel for the appellants impresses me. 1 have very carefully gone through the judgment and scrut in is hed the findings arrived at by the trial court and upon a scrutiny, the only reason that I have come across in the judgment given by the Sessions Judge for the acquittal of the aforesaid nine accused persons is that a suspicion had cropped up in the mind of the court regarding the participation of nine accused persons since acquitted. The learned Counsel further submitted that according to Mahima Rai, the melee had originated in the wake of the action taken by him when he started dispersing the crowd employing the help of the his police force on duty in order to clear the crowded road for free-passage of the Car carrying Sri Jagjivan Ram on being told by the Driver of the Car carrying Sri Jagjivan Ram, who wanted to proceed to Varanasi, The learned Counsel further submitted that to have the version of Mahima Rai to the aforesaid effect substantiated, the examination of the Driver of the Car and of Sri Jagjivan Ram was absolutely necessary, but the prosecution did not produce them. The non-examination of the Driver of Sri Jagjivan Ram or Jagjivan Ram himself had eroded the credibility of the police witnesses examined in this case. Even the circle officer and the Executive Magistrate, who were admittedly present at the crossing, were also not examined to vouch for the fact that the police had started dispersing the crowd on the direction given by the Driver of the Car, carrying Sri Jagjivan Ram. Upon a consideration of the above submissions of the learned Counsel it is difficult to hold that Mahima Rai along with police personnels in dispersing the crowd, had acted on the direction given to him by the Driver of the Car of Sri Jagjivan Ram. In the circumstances as discussed above, the possibility that Mahima Rai had acted on his own accord in dispersing the lawful assembly of persons collected on the Beura crossing to hear Sri Jagjivan Ram, cannot be ruled out. In also does not seem probable that Markandey Chand, appellant who was admittedly an official candidate of congress (Urs) had in fact exhorted the people there to assault Mahima Rai and other police personnel, if they were really reacting to the directions of Jagjivan Ram or his Driver in dispersing the crowd. Under the circumstances, the origin of melee is laid up in deep layers of mystery and it is difficult to hold that Mahima had dispersed the crowd with the help of his police force on the direction given by the Driver of the Car of Sri Jagjivan Ram. I may observe here that if Mahima Rai had acted out of zeal in dispersing a peaceful crowd which had collected there to listen to their leader, his action cannot be protected under the law and held as justifiable in dispersing the crowd and consequently, the people had the right to resist t his unlawful attempt by the police.
20. Admittedly, there were 300 to 600 persons who had collected at the place of occurrence and out of them nearly 50 persons had taken active part in the assault by kicks and fists as well as Danda on the police party headed by Mahima Rai. It is worthy of note here that in all 13 injuries were sustained by the five injured persons and out of them, there were five abrasions and five contusions including one lacerated wound on the head of Mahima Rai - Complainant. Adverting to the statement of Mahima Rai even he could not pinpoint as to who amongst the crowd had inflicted that blow resulting in lacerated wound on his head. Under the circumstances, the prosecution evidence that the police personnel were assaulted with kicks, fists and Danda by 50 to 60 persons, cannot be accepted considering the minor nature and lesser number of injuries sustained by injured persons. The presence of injuries on the persons of the police personnel, no doubt, speaks clearly of the fact that they were assaulted during the course of occurrence, but it is very difficult to find out who were those persons amongst 50 to 60 persons, who had inflicted injuries on the police party and taking into account the generalised and vague statement of the witnesses regarding the assault on them, the appellants cannot be fastened with and singled out for any guilt of having committed the offence. Here, I may observe that the facts and circumstances in the instant case are so badly garbled that it is difficult to separate the grain from the chaff and as such the appellants cannot be held guilty for causing injuries to the police party or that they were members of unlawful assembly.
21. The learned Counsel further submitted that in the instant case preparation of First Information Report as alleged by Mahima Rai himself is also subject to grave doubts. His statement that he had got the written report prepared from a person whose name he could not recollect and that after the report had been drafted, he put his signature on the written report Ex.Ka-1, creates reasonable doubt, as Kapil Deo Mishra, P.W. 6 had contradicted Mahima Rai by stating that the written report Ex, Ka-1 was prepared in the own handwriting of Mahima Rai. This being the position, it is difficult to hold that the First Information Report Ex.Ka 1 was drafted at the time and in the manner as alleged by the prosecution. Another serious aspect, which needs to be underscored and which reflects seriously and adversely on the prosecution case is that Mahima Rai had nominated 33 persons in his report Ex. Ka. 1. In his deposition before the trial court, he had named 28 persons, but when he was called upon in court to identify Ram Sanehi, Bajrang and Raj Narain, who were amongst the named persons, he bungled in identifying them correctly. Likewise in the case of Bechu Yadav, P.W. 3, upon being called upon to identify Girish Kumar, the witness fumbled and could not pick up Girish Kumar accused out of the accused persons in the dock. However, he correctly picked up Chhotey Lal accused, with regard to Chandi Prasad Mishra, P.W. 5, upon being called upon to identify Asharfi, accused, he faltered in identification and brought Bajrangi instead before the court from the dock.
22. In view of the discussions in the foregoing part of this judgment, I am of the view that the F.I.R. cannot be used as a corroborative piece of evidence in support of the testimony of the police witness before the Court.
23. It was also contended by the learned Counsel that the trial court had not placed reliance on the testimony of Mahima Rai and remaining police witnesses, to the effect that Markandey had fired during the course of assault on Mahima Rai and his men, such being the ambiguous nature of evidence of the prosecution witnesses which is tarred with grave doubts at places as held by the court below, the allegation of snatching and taking away of service Revolver of Mahima Rai by Tej Narain Chand, appellant being in the ring of grave doubts, cannot be accepted to be having any foundation of truth behind it. Under the circumstances, it is difficult to hold that the revolver of Mahima Rai had been taken away by Tej Narain Chand.
24. Lastly, it is contended by the learned Counsel that the investigation in this case, was not above board or fair as to inspire confidence inasmuch as Sri Jagjivan Ram and his Driver were not examined by the Investigating Officer though they were materially important witnesses to unfold the truth. Besides the Circle Officer and the Executive Magistrate, who were present admittedly at the scene of occurrence and also none from the security guards accompanying the Car of Sri Jagjivan Ram, were examined by the Investigating Officer It is nowhere explained that they were inaccessible. Hence their examination by Investigating Agency was a prerequisite to assure confidence to the investigation. It is further contended by the learned Counsel that prosecution has also not examined the public witnesses cited in the first information report as stated above. They were very material witnesses as they had admittedly intervened in the melee and rescued the Inspector Mahima Rai and his men.
25. Upon a conspectus of the facts and circumstances as well as discussions aforesaid, it is manifest that the evidence produced by the prosecution fails to bring home the guilt to the appellants and under the circumstances, the conviction and sentences recorded against the appellants by the trial court, cannot be sustained.
26. In the result, the appeal is allowed. The conviction and sentences recorded by the trial court against the appellants are set aside. The appellants are on bail. They need not surrender and their bail bonds are discharged.