MANU/RH/0622/1977

Equivalent/Neutral Citation: RLW1978()Raj123

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Cr. appeal No. 977 of 1971
Decided On: 19.12.1977
Appellants: Jugal Kishore Singh
Vs.
Respondent: The State of Rajasthan
Hon'ble Judges/Coram:
Vedpal Tyagi, C.J. and P.D. Kudal, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Bhimraj Purohit, M.M. Singhvi, R.S. Parihar, S.R. Bajwa
and P.C. Mathur
For Respondents/Defendant: Avtar Singh and S.K. Tiwari, Advocate General
RLW Case Note:
(a) Penal Code - Sec 149 - Unlawful assembly Common object--The raisng of
Alogam by the Group of persons alone is not sufficient to infer common object
of the assembly to kill but other factors like distribution of lathies and iron
rods, carrying weapons like 'Gupti' & 'Pistol' and thereafter actually causing
serious and grievous injuries by the assaillants on the person of the deceased
are such circumstances from which it can be inferred that the common object
of the assembly was to kill the deceased.
(b) Penal Code - Sec. 149--Unlawful assembly--A member of the unlawful
assembly cannot escable the liability of the actions of other members of that
assembly on the ground that there is no evidence of actual participation or an
Conest act on his part.
(c) Criminal Trial - Eye-witnesses receiving injuries at the hands of the
assaillants--Attack by a group of assaillants--Eye-witnesses not narrating the
sequence of erents correctly--This is itself is no infirmity to discard their
testimony--It is difficult for a person to keep the balance of mind and see
everything minutely where a person is attacked by a mob--Suffering injuries
by them in the same incident proves their presence undoubtedly.
(d) Criminal Trial - Evidence of a witness disbelieved with respect to some
accused is no ground to disbelieved it for other accused persons.
(e) Criminal Trial - The statement of a hostile witness cannot be pressed into
service to belie and contradict the testimony of other witnesses.
(f) Criminal Trial - Finding of acquittal cannot be disturbed on the basis of
uncorroborated testimony of a single witness.
(g) Criminal Trial - Appeal against acquittal--Grounds for discarding the

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evidence of the witnesses not very Convincing but where the trial Court has
extended the benefit of doubt, the finding of acquittal cannot be lightly
interfered.
(h) - Appeal against acquittal--Findings of the trial court based on con-
juctures and sarnises. High Court would reappraise and scrutinise the whole
evidence.
JUDGMENT
Vedpal Tyagi, C.J.
1 . All these six matters arise out of the judgment dated 25th of January, 1971 of the
learned Sessions Judge, Jaipur city convicting the appellants Bhagwan Singh,
Dharampal, Jugal kishore, Raj Kumar Gaur, Ramchandra, Sukhdeo and Vijay Poonia of
the offences punishable under section 304 Part II read with section 148, 149, and 447
I.P.C. Accused Rajkumar Gaur and Ram chandra were also found guilty of offence under
section 523 I.P.C. All the accused persons were sentenced to rigorous imprisonment for
four years under section 304 Part II read with section 149 I.P.C., two years rigorous
imprisonment under section 148 I.P.C. and two months rigorous imprisonment under
section 447 I.P.C. Rajkumar and Ramchandra in addition to the said sentences were also
awarded eight months' rigorous imprisonment each under section 323 I.P.C. All the
substantive sentences were however ordered to run concurrently. All the accused
persons who were charged under section 302 I.P.C. were acquitted of that charge.
2 . Accused Manipal, Anil Mehta, Mohanlal, Motilal Jain, Sukhvir Singh, Behari Modi,
Jotram, Omprakash Bishnoi Sultan Singh and Ravindra were all acquitted of the various
charges levelled against them. Appeal No. 112 of 1972 is filed by the State challenging
the acquittal of fall the accused persons under section 302 I.P.C. as well as against the
acquittal of aforementioned ten persons who were not found guilty at all. Appeals Nos.
977 of 1971 and 1001 of 1971 are filed by those who were convicted by the trial court.
3. Besides these appeals three revision petitions were also filed under section 11(3) of
the Probation of offenders Act, 1958 by the Probation Officer praying to revise the cases
of Sukhdev Singh, Dharampal and Vijay Poonia who in his opinion were entitled to get
the benefit of the provisions of section 6 of the Probation of Offenders Act, as according
to the Probation Officer all the abovenamed three accused were entitled to get such
benefit as they had not attained the age of 21 on 3-2-1970 when the incident had taken
place. The Probation Officer maintains that section 6 of the 1958 Act is mandatory and,
therefore, the cases of the said three accused persons viz. Sukhdev Singh, Dharampal
and Vijay Poonia need to be revised under section 11(3) of the Act. Since all these six
cases arise out of one judgment, we propose to dispose them of by a single judgment.
4 . Seventeen persons including the seven convicts, namely, Bhagwan Singh, Dharam
Pal, Jugal Kishore, Rajkumar Ramchandra, Sukhdev Singh and Vijay Poonia were tried
for committing the murder of Dalip Singh, a student of the 1st year T.D.C. Arts who
used to reside in room No. 42 of the Vivekanand Hostel. Ten persons were acquitted of
all the charges levelled against them. Out of those ten the State did not prefer any
appeal against Motilal. Ravindra. Singh, Sukveer Singh, and Sultan Singh. The State has
chosen to file appeal only against the acquittal of Anil Mehta, Mohan Lal, Mahipal
Maderna, Behari Modi, Jotram and Omprakash Bishnoi. We, therefore need not take into
consideration the evidence relating to the four acquitted persons against whom no
appeal has been preferred by the State.

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5. The prosecution case as unfolded by the prosecution witnesses is like this:--
6 . Vijay Poonia who is said to be the leader of one faction of the students was on a
friendly terms with deceased Dalip Singh who is said to be the leader of another
factions. These cordial relations continued till the elections of the Students Union took
place. There after it is said that Dalip Singh fell out and the students divided into two
distinct groups, one headed by Dalip Singh and the other by Vijay Poonia. The learned
Judge has taken note of certain events that took place at Ganganagar where kisan
agitation was organised which had its own impact on the minds of the 'student
community at Jaipur which divided the students on communal lines. Vijay Poonia
become the leader of the Jat group and Dalip Singh led the Rajput group. The gulf
between the two groups widened and the matters reached to such a climax that Dalip
Singh started apprehending that he might be done to death by Vijay Poonia and his
followers. The apprehension was communicated by Dalip Singh to the Warden of the
hostel also.
7. On 3rd of February, 1970, it is alleged that some students belonging to the group of
Vijay Poonia riding on motor cycles, scooters and car came in search of Dalip Singh.
They first went to a place known as Non Resident Student Centre hereinafter to be
referred to as 'N.R.S.C' in she University Campus When they did not find Dalip Singh
there they proceeded to the Canteen in Rajasthan College Campus. When Dalip Singh
was not traceable there also, the group proceeded to the Vivekanand Hostel where Dalip
Singh used to reside. According to the prosecution case accused Jugal Kishore on the
lawns of the Vivekanand Hostel distributed lathis and iron rods taken by them in the car
which was brought by Mahipal Maderna. There the members of the assembly raised
certain slogans which clearly indicated that they had come to that place to take revenge
against Dalip Singh Dalip Singh at that time was in his room No. 42 situated on the first
floor of the hostel. The group of students then went upstairs and when they found that
the door of Dalip Singh's room was closed, they tried to open it by giving pushes to it
The prosecution story further goes to reveal that when the door could not be opened by
force, somebody from amongst the crowed suggested that the party had come for
negotiating a compromise and it is said that thereafter the door of the room was opened
from inside. Eleven students entered the room Dalip Singh, P.W. 4 Narendra Singh and
P.W. 6 Arjun Singh were inside the room. It is said that after giving beating to P.W. 4
and P.W. 6 they were pushed out of the room and then the assailant party belaboured
Dalip Singh mercilessly while he was lying on the cot. After giving a good deal of
threshing to Dalip Singh by the lathis and iron rods the students came out of the room
and then went away from the place of occurrence. Dalip Singh was immediately brought
down by the inmates of the hostel and placed over a cot on the ground flower of the
hostel. Immediate information was sent to the warden of the hostel who rushed to the
place of occurrence. Having seen the serious condition of Dalip Singh the warden
managed to shift all the injured viz. Arjun Singh, Narendra Singh and Dalip Singh to the
hospital. Dalip Singh was shifted in an unconscious state and he remained so in the
hospital till February 14, 1970 when he breathed his last. A team of medical experts
was summoned by the State Government from Delhi to examine Dalip Singh and to
make the best medical treatment available to him but unfortunately these efforts could
not bear any fruit and even the best medical aid could not succeed to save Dalip Singh.
8 . Dr. Dakaya, the warden of the hostel and Dr. Jiyauddin Khan made inquiries about
this incident and asked various students who had witnessed the occurrence. P.W. 8 Shri
Vijay Singh and P.W. 37 Shri Devendra Singh submitted a joint written report about
what they had witnessed Similarly P.W. 9 Pushpendra Singh gave his version in Ex. P.5.
P.W. 12 Kishan Singh also filed a written report with the Warden which is Ex. P.16.

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Anand Kumar Yogi P.W. 16, Shailendra Kumar Pathak P.W. 17, Gokulchand Chhawala
P.W. 38 and Shri Bhojraj Singh P.W. 23 also gave written report to the Warden which
are Ex. P. 24, Ex. P. 25, Ex. P. 35 and Ex. P 86 respectively. P.W. 35 Phoolia who had
discovered certain lathis and iron rods (Saria) in the adjoining bath room stained with
blood, also submitted a report which is Ex. P 34. On the basis of the different versions
given by the aforesaid witnesses, Dr. Jiyauddin Khan sent the first information report
Ex. P. 37 to the Police station Officer Bapu Nagar, Jaipur. On the basis of this report
case was registered and investigation was started by the local police.
9. There was a resentment in public that the investigations were not properly conducted
and there was a charge that the local police was out to save some of the culprits who
were highly connected with the politicians. The State government therefor thought it
proper to handover the investigation to the C.B.I. and on 14-2-1970 Shri Jiyauddin
Khan made the written statements of the various witnesses handed over to Dr. Bakaya,
available to the G.B.I. Mahi Pal Maderana who was said to have taken the car of his
father, who was then a member of the Rajasthan Cabinet, was also named in some of
the documents but the charge against the local investigating agency was that his name
was subsequently scored out of the documents and the local police was out to see that
his name may somehow be taken out of the list of the culprits. The C.B.I. however
made a thorough enquiry and ultimately challaned 17 persons including Mahipal
Maderana for offences under secs. 120B, 302 read with sec. 149, 147, 148 & 448 I.P.C.
The charge u/s. 323 I.P.C. was also framed against accused Rajkumar Gaur and
Ramchandra.
1 0 . The prosecution in support of its case examined as many as 75 witnesses and
produced 161 documents, Vijay Poonia, Dharampal and Jugal Kishore pleaded alibi
While other accused denied their participation in the crime. Vijay Poonia stated that he
had gone to Delhi to attend the Republic Day parade and he was in Delhi from 10-1-70
to 16-2-70 when he was arrested in Delhi. Dharampal's plea was that on February 3,
1970 he was at Rohtak where he attended the court of the Judicial Magistrate while
filing a complaint. According to him he had left Jaipur on 31-1-1970. The plea of Jugal
Kishore was that on receiving information about the ailment of his mother, he left Jaipur
for Bhadra on 1-2-1970 and on that fateful day he was present in the town of Bhadra.
11. Fourteen witnesses were examined by the defence in support of their respective
pleas of the accused persons and placed reliance on as many as 55 documents.
12. The learned Sessions Judge after discussing the case of each accused convicted
only 7 persons as aforementioned and acquitted the rest of all the charges framed
against them. It is in this manner that these appeals and revisions have come before
this Court.
13. Before we start to discuss the appeals of the convicted persons, we would like to
mention that though the local doctor had examined the injuries of Dalip Singh on the
day of incident but that report of the doctor has not been placed on record. On 13-2-
1970 Dr. Jagdish Chandra P.W. 1 who was called from Delhi by the Government of
Rajasthan examined Dalip Singh and noted down the external injuries found on the
body of Dalip Singh which we shall refer to at the time when we shall take into
consideration the nature of the crime committed by the accused persons.
14. The main charge against the part of the accused persons was that they entered into
a criminal conspiracy to do away with the life of Dalip Singh and for that purpose about
15 boys met a day before at the Glory Restaurant at about 10-30 in the night. P.W. 25

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Satyapal and P.W. 39 Subhash Acharya have been examined to prove that a criminal
conspiracy was thatched in the room of Glory Restaurant on 2.2.1970 These two
witnesses have stated that they had seen about 15 boys in the Glory Restaurant about
10.30 on 2-2-1970 and they also saw 5 sticks and iron rods lying in that room The
testimony of Satyapal P.W. 25 is sought to be corroborated by the prosecution by the
statement of Subhash Acharya P.W. 39. Raghuvir Dayal P.W. 28 one of the partners of
the Glory Resturant also came in the witness box and he also supported the statement
of P.W. 25 and P.W. 39 but he refused to disclose the talks that were going on amongst
the boys as he could not hear them. These witnesses could identify only one person
Vijay Poonia who was present at the time when the boys had assembled in the Glory
Restaurant P.W. 26 Shahi Kapoor was also examined to prove the fact of conspiracy.
But from the tenor of his statement it is clear that he was not certain about the presence
of either Vijay Poonia or Mahipal Maderana. According to him it is on sneer conjecture
that he had named Vijay Poonia and Mahipal Maderana because he clarified that he did
not see the faces of these two persons Other witnesses P.W. 25 also is not certain about
the presence of these two accused persons at the Glory Restaurant. In the absence of
any positive evidence regarding the thatching of a criminal conspiracy to do away with
the life of Dalip Singh and also in the absence of any reliable evidence regarding the
presence of the accused persons at the Glory Restaurant the learned Sessions Judge has
rightly discarded this evidence and acquitted the accused persons of the charge under
sec. 120B. Shri Avtar Singh learned counsel appearing on behalf of the State, in the
face of these infirmities in the prosecution evidence, did not seriously urge before this
Court that on the basis of the evidence which is on the record, the accused could be
convicted for an offence under section 120B.
15. The another link about the criminal conspiracy which the prosecution tried to bring
on record was that one Tejraj Singh went to the room of Dalip Singh on the morning of
that fateful day and informed him that Vijay poonia and his gang was after his life.
Tejraj Singh has, however, not been brought in the witness box by the prosecution
Unfortunately Dalip Singh did not regain consciousness after he was given beating and
therefore, there is nothing on the record to prove his link of conspiracy. In our opinion
the learned Sessions judge has rightly discarded the evidence of conspiracy and
acquitted the accused persons of the charge under section 120B of the Indian Penal
Code.
16. Before dealing with the case of individual accused, it will be worthwhile to see
whether the assailants constituted an unlawful assembly and if so what was their
common object and at what stage the assembly was converted in to an unlawful
assembly.
17. It is in the evidence of P.W. 18 Chandra Shekhar Singh that on 3rd of February,
1970 just before 2 O' clock when he was going on the road from University side to the
police Memorial with Khemsingh and Yadundra Singh on their Scooter which was driven
by Khem Singh, he saw a grey coloured Ambassador car with a red-strip on its number
plate going from police Memorial to the University. The car was fully loaded. It was
being driven by Mahipal Maderana accused The witness recognised one of the occupants
in the car, as Vijay Poonia who was sitting next to Mahipal towards his left. Other
occupants, however, could not be identified by him. The car was identified by the
witness because Mahipal used to bring that car to the college previously also. The
witness described the occupants as students. A suggestion was made to him that he did
not correctly identify Mahipal and it was entirely on his guess work that he named him.
The suggestion was turned down by him and stated, "in fact I identified him as Mahipal.
Mahipal was bare headed". He however could not say whether he was putting on a coat

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or a bush-shirt as he could not observe his fact minutely.
18. P.W. 7 Usha Moza, who got herself registered for ph. D. in Hindi and who was
staying with Mr. K.N. Bakaya in Jaipur, saw at about 1 O' clock in the day on 3.2.1970
when she was going to the department of Humanities a large crowd, in front of N.R.S.C.
When she reached the crowd, it dispersed. The boys who composed that crowd went
away in car, motor cycles and 2-3 scooters. The crowed, went towards the main gate of
the University. She could recognise Vijay Poonia accused who started from that place on
a scooter. A boy by name Mohanlal Krishnia was also recognised by her as one of the
occupants of the car. She has given description of the car as Ambassador of greyish
blue colour, Its number plate had a reddish strip on it. The car when started towards
the University, was headed by Vijay Poonia on scooter. This lady no doubt does not give
the exact number of boys who assembled in front of N.R.S.C. but she says that it was a
large crowd. The testimony of this witness has been relied upon by the trial court and
the learned counsel appearing on behalf of the appellants also did not characterise this
statement as unworthy of reliance. From this statement, it appears that a car which was
seen by P.W. 18 near the police Memorial reached the N.R.S.G. because the description
of the car given by P.W. 7 Usha Moza is the same as was given by P.W. 18 when he saw
it coming from the Police Memorial. The presence of Vijay Poonia at the N R.S.C. also
fixes the identity of the car because he was seen in the same car when P.W. 18 Chandra
Shekher crossed it at the Police Memorial.
19. It is true that P.W. 7 Usha Moza does not name Mahipal Maderana as one of the
occupants of the car. She had named only two persons, namely, Vijay Poonia and
Mohanlal Krishniya. But this infirmity as pointed out by the learned counsel for accused
appellants does not in any manner diminishes the probative value of the testimony of
Usha Moza because according to her she knew only two persons, namely Mohan
Krishnia and Vijay Poonia This evidence in our opinion is sufficient to establish that
there was an assembly of students in front of N.R.S.G. where Vijay Poonia was present
and the boys were using for their transport a car, scooters and motor cycles.
20. P.W. 10 Ravindra Singh cousin of the deceased Dalip Singh is another witness in
this chain who states that on 3-2-1970 at about 1.30 P.M. or a little after he saw some
scooters and motor cycles coming from Rajasthan College. They stopped by the side of
canteen Accused Vijai Poonia got down from his scooter and accused Jugal Kishor got
down from the Royal-en field motorcycle. Another accused Dharampal got down firm
another motor cycle. He also saw Omprakash and Behari Modi. Accused Jugal Kishore
want into the canteen in search of some body. When he came out, he told the members
of his group something whereupon all the member of that group went towards
Vivekanand Hostel. Vijay Poonia was, however, left behind and he entered into the car
which was coming in hurry from the Rajasthan College side The witness identified the
car which belonged to the Rajasthan State Garage as there was a red strip on the
number plate. The car was ambassador and was of grey colour and it was being driven
by accused Mahipal Maderana. The witness knew Mahipal from before. The assembly
that stopped at the canteen in search of someone then want to the Vivekanand Hostel.
21. Kishan Singh P.W. 12 who was a resident of room No. 35 of the Vivekanand Hostel
say at a distance of about 50 yard from Vivekanand Hostel's pate facing the Rajasthan
college 3 or 4 scooters coming towards the hostel. Behind those scooters was an
ambassador car of grey colour and it had a red number plate. Behind the car he saw
some more scooters which stopped at the Vivekanand Hostel The witness saw Vijay
Poonia in the car which was fully packed. He however could not identify other occupants
of the car. This witness has been relied upon by the trial court and no adverse

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comments have been made by learned counsel for the accused applicants before us
regarding the veracity of the statement of P.W. 12 Kishan Singh.
22. These witnesses fully establish that students coming on scooters, car and motor
cycles; who were quite large in number, first went to N.R.S.C. and then to canteen and
from there they proceeded to Vivekanand Hostel where unfortunately the incident had
taken place. We need not discuss the evidence as to who was the member of this
assembly but this much can be said with certainty after perusing the statements of the
aforesaid witnesses that the students in a large number were moving on scooters, motor
cycles and car and they after searching somebody at N.R.S.C., canteen reached the
place of occurrence i.e. Vivekanand Hostel.
2 3 . The next question that falls for our determination is as to when this assembly
convened itself into an unlawful assembly and what was its object. The activities of the
boys who were travelling on the scooters, motor cycles and car and who visited
N.R.S.C. and Canteen did not disclose any unlawful object at these two places. But
when the members of this assembly reached the Vivekanand Hostel and the car stopped,
then it is said that the lathis and iron rods which were carried in the car, were taken out
by Jugal Kishore and they were distributed among the members of the assembly. It is in
the evidence of the witnesses that slogans were raised on the lawns of the Vivekanand
Hostel, Arjun Singh P.W. 6 has stated
that the boys when they went up stairs towards the room No. 42, they were shouting,
P.W. 11 Harish Chandra Meena has stated that the crowd
raised a cry, . P.W. 16 Shri Anand Kumar
Yogi in this connection deposed that the crowd was crying, and
nobody was named by any one of the members of the assembly. P.W. 23 Bhojraj Singh
stated that the words spoken by the crowd were, Phoolia P.W. 35
who had discovered the blood stained lathis and iron rods in the bathroom situated on
the first floor of the hostel near the room of Dalip Singh, has stated that he had heard
the words . The learned Judge from these words was not prepared for
infer that the object of the crowd was to kill Dalip Singh. According to the trial court
these words did not in any manner indicate that the crowd wanted to kill Dalip Singh,
otherwise the words used would have been different like, . The trial
Judge has also commented that the witnesses, who have come in the witness box to
depose about the slogans raised by the Crowd, are not much worthy of credence as the
slogans described by different witnesses were different. We think these comments of
the trial court can hardly be justified because the slogans themselves as deposed by the
witnesses show that some people raised slogans while the were standing on the ground
floor while others cried when they were going upstairs or when they were busy in
getting the door of Dalip Singh's room opened. We cannot, therefore subscribe the
findings of the trial court that on account of the contradictions in the nature of the
slogans as deposed by different witnesses, it was doubtful that such words were at all
spoken by the members of the party.
24. The learned Judge has also taken into consideration the extracts from Ex. P37, the
first information report that the boys constituting the assembly had gone to D dip
Singh's room in order to have a compromise with him and, therefore, there was no
reason for them to have shouted the threatening words. In our opinion the learned trial
court has committed an obvious error in treating the observations of the author of the

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first information report as substantive piece of evidence and on that basis to discard the
evidence of the prosecution regarding the raising of slogans by the members of the
assembly.
25. The trial court held that even after assuming that the slogans as deposed by the
witnesses were raised, even then the slogans did not disclose a common object to kill
Dalip Singh. In the opinion of the learned Judge the words. "MARO" and "MAROGE" do
not in any manner give an indication that the persons who raised these slogans, had an
idea of killing Dalip Singh The slogans alone, no doubt, cannot lead us to infer that the
common object of the assembly was to kill Dalip Singh but when these words are read
in the background of other factors, namely, the distribution of lathis and iron rods and
also carrying some weapons like pistol and 'Gupti' by the members of the assembly,
actually causing serious and grievous injuries by the assailants on the person of Dalip
Singh the court can conveniently infer that the object of the assembly was not simply to
chastise or inflict bodily injuries to Dalip Singh but they were furious enough to go to
the length of killing him.
2 6 . The argument given by the trial court that the members of the assembly were
armed with lethal weapons yet they were not used to kill their victim, gave indication to
the trial court that the object of the assembly was simply to beat Dalip Singh. It is in
the evidence of prosecution that Jugal Kishore, one of the members of the assembly had
a pistol in his hand but it was not used by him. Similarly Vijay Poonia, according to the
prosecution evidence, was armed with 'Gupti' but he, too, did not use it as a deadly
weapon to kill Dalip Singh. According to the testimony of P.W. 4 Narendra Singh, Jugal
Kishore had a pistol in his hand but the witness grappled with him as soon as he
entered the room of Dalip Singh and disabled him to use the pistol as a weapon of
offence against Dalip Singh. If the member of assembly, who raised slogans did
indicate their desire by using the words "MAAROGE", were armed with deadly. weapons
like pistol and 'Gupti', than it is difficult to endorse the views of the trial court that the
object of the assembly was only to chastise Dalip Sigh and not to kill him. In our
opinion it can safely be inferred in these circumstances that the members of assembly
were free to use the deadly weapons carried by them in such a manner so that they
could do away with the life of a person whom they were going to attack.
2 7 . The question as to when the assembly of the boys that ultimately reached
Vivekanand Hostel, became unlawful, is however of little significance. It is not disputed
that the assembly of boys consisting of more than five persons after having visited
N.R.S.C. and the Canteen where they had gone probably in search of their victim,
reached the Vivekanand Hostel. There is no season to disbelieve the prosecution
evidence that on the lawn of the hostel the distribution of lathis and iron rods which
were taken out from the car, took place and it is thereafter that the slogans were raised
at the lawn and also while going upstairs to reach room No. 42 The boys forcibly tried
to get the door opened by giving pushes to it. These facts unmistakably lead us to an
inference that the object of the assembly at the hostel was unlawful and as such we can
safely declare that the assembly at the hostel was unlawful and those who actively took
interest either in getting the door opened or actively participated in the act or beating,
were the members of that unlawful assembly and therefore they cannot escape the
liability for what had happened at Vivekanand Hostel and especially in room No. 42
thereof.
28. P.W. 4 Narendra Singh and P.W. 6 Arjun Singh, according to the prosecution story,
were inside the room when the members of the assembly reached the door of the room
and forced the occupants thereof to open from inside. P.W. 17 Shailendra Kumar Pathak

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is another person who came up to the room No. 42 when the assailants had entered the
room and started giving beating to Dalip Singh. The learned trial court, however, did
not believe this story of the prosecution that the two witnesses P.W. 4 and P.W. 6 were
inside the room when the assailants went to attack Dalip Singh. The injuries sustained
by thee two witnesses P.W. 4 and P.W. 6 Narendra Singh and Arjun Singh, establish
their presence at the spot because according to them, they were given beating by the
assailants when they were inside the room. The trial court, however, held and in our
opinion it is on the basis of mere conjectures, that after the assailants had entered room
No. 42, these two witnesses namely, Narendra Singh and Arjun Singh also entered into
the room There is no basis on the record to arrive at this conclusion The learned trial
Judge on the basis of the testimony of Shailendra Pathak P.W. 17 that when he saw
Vijay Poonia hitting Dalip Singh with a 'Gupti' Arjun Singh was not in the room and he
only followed him in the Varandah, arrived at this conclusion. But on a careful perusal
of the statement of Shailendra Kumar, we can say that such an inference which the trial
court has drawn is not justified because Shailendra Pathak reached the spot after the
beating had actually stopped and it is not improbable that by that time P.W. 6 Arjun
Singh might have been driven out of the room by the assailants after giving him
beating. The argument of Sardar Avtar Singh that it is due to misreading of the evidence
of Shailendra, cannot be said to be-without force. The learned trial judge has not
followed the incident in right sequence. Shailendra Pathak did not reach the spot before
the assailants hid entered the room and started giving beating and, therefore, if the
witness found Arjun Singh in the injured state in the Varandah in front of room No, 42,
then this fact does not tell upon the credibility of Arjun Singh. From this fact it is
difficult for us to infer that Arjun Singh was not inside the room when the assailants
entered into it. Narendra Singh's presence in the room was also not accept by the trial
court on the ground that he could not say to how Dalip Singh was beaten and how he
fell down on his bed and who gave blow to him after he fell on the cot. It is in the
evidence of these two eyewitnesses that as soon as the door was open about 11 or 12
persons entered the room and when the witnesses tried to intervene, they were given
threshing by the assailants and were driven out of the room They were then removed
from the place of occurrence in the injured state in such circumstances if these two
witnesses did not disclose the sequence of events that took place in the room then from
that defect it could not be inferred that they were not present in the room when the
assailants got the doors open. In our opinion the presence of these two witnesses in the
room at the time of the entry of the assailants could not be ruled out.
2 9 . The learned trial Judge has dealt with the testimony of these two witnesses,
namely, P.W. 4 and P.W. 6 at length The reasons given by the trial court for holding
that Arjun Sing and Narendra Singh were not present in the room when the assailants
made their entry therein, are not convincing. One of the grounds advanced by the trial
court for not placing implicit reliance on Arjun Singh was that he could not name all the
persons who went inside the room, and could not give the description of the weapons
carried with them. We think this reasoning is not correct. When a person is attacked by
a mob of this nature, it is difficult for one to keep the balance of his mind and see
everything in the manner which, perhaps, the court wanted them to observe. The tenor
of the statements of Arjun Singh and Narendra Singh gives much credence and the
injuries sustained by them during this scuffle inside the room undoubtedly prove the
presence of the witnesses in the room because there was no reason why only these two
witnesses should have been beaten in the Varandah and Shailendra Pathak who had also
visited the spot and remained in the Varandah would have been given a different
treatment by the mob. When 11 or 12 persons entered that small room No. 42 and
many of the members of that assembly remained outside the room, then it was well
nigh impossible for Narendra Singh and Arjun Singh to have found entry in that room

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afterwards and sustained injuries at the hands of the assailants. In these circumstances
we cannot endorse the finding of the trial court about the presence of these two
witnesses in the Varandah when the assailants made their entry into that room to beat
Dalip Singh.
30. The testimony of Shailendra Pathak P.W. 17 though in some respect different from
the statements of P.W. 4 and P.W. 6, cannot be said to be wholly unworthy of credence.
It is true that P.W. 17 has been declared hostile so far the presence of Mahipal Maderna
is concerned but that attitude of the witness does not render his entire statement un-
reliable Toe learned trial court has Said much stress on the fact that the two witnesses,
via Arjun Singh and Narendra Singh did not disclose to the local police the nature and
the manner in which the incident had taken place nor did they name many of the
assailants. According to the learned Judge their reticence was significant and when read
with the fact that the first information report was lodged late, a lot of twist, according
to the trial court, seems to have been given to the story which in his opinion "was a
simple matter and an ordinary scuffle between some students in which the action of
assailant party exceeded its limit and more injuries than required by the situation were
caused to Dalip Singh". The learned Judge fur her opined that "the matter further
received aggravation by giving it a colour in a different setting which it did not deserve.
We may observe here that undue importance has been given by the learned trial Judge
to belie the statement of the witnesses on the belated first information report by Dr.
Ziyauddin who prepared the report Ex. P.37 after receiving various written statements of
the alleged eye-witnesses to the occurrence. It is a sad story that even the learned
persons like Dr. Ziyauddin did not realise his responsibility under the law to move the
police immediately when such a serious occurrence had taken place. It may be observed
that those who gave their versions in writing about the incident viewed the incident
from different angles and, therefore, the story given by each one of them could not tally
with the other with a result that the first information report Ex. P.37 drawn by Dr.
Ziyauddin did not contain the facts which an observer could have mentioned soon after
the incident was over. Dr. Ziyauddin was not an eye-witness to the scene of occurrence
and, therefore, whatever story was given by him in Ex. P.37, could not be used in a
manner so as to belie the eye-witnesses. However, we are of opinion that the learned
Judge gave too much importance to a document which was prepared by a person who
had not himself witnessed the occurrence and who based his inference on the basis of
different versions received from different sources.
3 1 . After discussing the evidence of the three eye witnesses, the learned Judge
recorded his impression about their evidence in the following language, the total
impression that I gather from the evidence of these witnesses, Narendra Singh, Arjun
Singh and Shailendra Pathak, is that all these three witnesses came upon the scene of
occurrence after beating had been already given to Dalip Singh and they did not see
anything with their own eyes. It was only on account of the subsequent happenings that
they imagined and presumed that beating must have been given to Dalip Singh by the
persons seem of whom gave a beating to Narendra Singh and Arjun Singh". We regret,
we do not agree with the trial court about this summing up of the evidence of these
three witnesses and we definitely hold that Narendra Singh and Arjun Singh were inside
the room No. 42 when the assailants came and got the door opened and that they were
beaten by the assailants inside the room and then driven out of the room. It is difficult
to say at what stage these two witnesses were taken out of room but it is certain that
they had identified certain members of the assembly inside the room and they named
them without any hesitation.
32. From the above discussion we can safely hold that the assembly that ultimately

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reached Vivekanand Hostel and the members thereof who were present at room No. 42
where Dalip Singh used to live and those who helped them to bring to the Vivekanand
Hostel, were all members of unlawful assembly and their object was to kill Dalip Singh.
33. We now propose to discuss the case of individual accused. Case of Vijay Poonia:
34. Vijay Poonia appears to be the villain of the peace and being head of the group of
students, he played an important role in this episode. This accused appellant has come
out with a plea that on 10.1.1970 he went to Delhi to participate in the Republic Day
celebration as a Cadet in the Air wing of the N.C.C. and has remained there upto
16.2.1970 when he was arrested in Delhi it self this plea of alibi has been rejected by
the trial court and it found that he was very much in Jaipur. But the did not come with
the contingent with which he had gone to Delhi that returned from Delhi on 31.1.1970.
The state-ment of D.W. 5 Rajendra Kumar Sharma that Vijay Poonia did not return,
Jaipur on 31.1.1970 with his contingent, cannot be discarded. But it hardly helps the
accused-appellant because this dose not prove the absence of Vijay Poonia from Jaipur
on 3.2.1970. D.W. 6 Shri Paramvir Rathi a relation of V. jay Poonia, however, has come
in the witness box to show that he was in Delhi from 31-1-1970 to 16-2-1970 and was
staying with him. He was a boy of 20. This statement has not been believed by the trial
court. We also perused the testimony of this witness and in our opinion it hardly
inspires any confidence. D.W. 8 Harishchandra Kasana has deposed that he saw Vijay
Poonia at the Indian Coffee house on 3-2-70 at about 3 p.m. but this evidence being of
a chance witness can hardly inspire any confidence. In our opinion Vijay Poonia has
miserably failed to prove his plea of alibi.
35. Now we have to see whether the prosecution has established the presence of Vijay
Poonia at the place of occurrence.
3 6 . The trial court while discussing the testimony of 19 alleged eyewitnesses has
categorised these witnesses into three groups, namely, (i) wholly unreliable (ii) partly
reliable and partly unreliable, and (iii) wholly reliable, P.W. 7 Usha Moza, P.W. 12
Kishore Singh and P.W. 19 P.D. Verm a were categorised as wholly reliable witnesses.
Correctness of the statement of Usha Moza P.W. 7, however, has not been doubted by
the counsel appearing on be halt of the accused appellant. Even before the trial court,
learned counsel for the defence considered her to be a truthful witness and also she was
characterised as an independent person. This witness had seen the crowd at N.R.S.C.,
and she had identified Vijay Poonia as one of the persons going on the scooters near
the N.R.S.C. on 3-2-1970. Vijay Poonia was also identified in the room No. 42 of Dalip
Singh by Narendra Singh P.W. 4 and Arjun Singh P.W. 6 who were both injured and
their testimony to this extent was believed by the court below. The evidence of Kishore
Singh P.W. 12 who has been classified as a wholly reliable witness, also proves the
presence of Vijay Poonia in the crowd and he identified him while the crowd was
entering the hostel. It is true that this witness could not state with exactitude the place
where Vijay Poonia was sitting in the car which he had seen going towards the hostel.
But he was positive in his deposition that he had seen Vijay Poonia and identified him in
the car. It may be mentioned here that the witnesses are consistent in naming this
accused even in their written statements submitted to Dr. Ziyauddin Khan, their police
statements and their statements recorded under section 164 Cr.P.C. The testimony of
Narendra Singh P.W. 4, Arjun Singh P.W. 6 and Shailendra Pathak P.W. 17 un-
mistakably establish the presence of Vijay Poonia in the room of Dalip Singh. The
evidence given by P.W. 9 Pushpendra Singh which was corroborated by PW24 Shyam
Narang, also shows that Vijay Poonia was seen by them in the Vivekanand Hostel in the
aggressive mood before he went to the room of Dalip Singh. Mr. Bhimraj could not

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point out any mateerial on the record to establish that Vjay Poonia was not present at
the scene of occurrence, export that he advanced an argument that Vijay Poonia is said
to have been equipped with a weapon like Gupti but as depositions show that this
formidable weapon was used only as a cane which in his opinion was not possible if
Vijay Poonia as a leader of the crowd was out to kill Dalip Singh. The injury reports of
Dalip Singh show that he had sustained an incised wound on the right palm across the
index and middle fingers which shows that a sharp edged weapon like 'Gupti' must have
been used when Dalip Singh was attacked. It is suggested by the learned counsel
appearing on behalf of the State that the 'Gupti' must have been used by Vijay Poonia
as a sharp edged weapon and not as a cane only. But in the absence of any positive
evidence about using of 'Gupti' in the manner which could have caused an incised
wound on she hand of she deceased, it is difficult to say as to how the weapon with
which he was armed, was used by him However, even if the prosecution could not
establish beyond all reasonable doubts the part played by Vijay Poonia inside the room,
his presence at the place of occurrence is established beyond all reasonable doubts.
Therefore, he cannot escape the responsibility of becoming a member of an unlawful
assembly. In our opinion the finding of the trial court that Vijay Poonia was very much a
member of this unlawful assembly, cannot be assailed.
2. Accused Jugal Kishore:
37. Jugal Kishore, according to the prosecution was a person who carried a pistol in his
hand when he entered the room of Dalip Singh. P.W. 4 Narendra Singh and P.W. 6
Arjun Singh have definitely deposed that Jugal Kishore entered into the room and when
he was found to have carried a pistol in his hand, Narendra Singh grappled with him
and fell him down in order to ensure that he may not use that formidable weapon which
he was carrying with him. Shailendra Pathak P.W. 17 stated that he had also seen Jugal
Kishore in the room of Dalip Singh. P.W. 9 Pushpendra Singh also corroborates the
presence of this accused in the Varandah. It is in the evidence of P.W. 4 Narendra Singh
that as soon as Jugal Kishore entered the room, he pointed out his pistol towards Dalip
Singh in an aggressive demeanour. There is no reason to disbelieve the testimony of
Narendra Singh who had received injuries inside the room as observed above. In view
of the establishment of aforesaid facts, the trial court has rightly come to the conclusion
that there was no doubt that Jugal Kishore was present in the hostel at the time the
incident had taken place and his presence indicated the sharing of a common object
with others.
38. A plea of alibi has been advanced by Jugal Kishore and in support of it a letter Ex.
D55 has been produced to show that he was summoned to his village Bhadra as his
mother was seriously ill. Kishan Singh D.W. 8, the brother of Jugal Kishore, has stated
on oath and proved that letter Ex. D 55 was scribed by him. D.W. 9 Bahadur Singh and
D.W. 12 Jhaman Lal were also examined by the defence to support this plea of alibi but
the learned Judge has not placed reliance on the testimony of the witnesses for the
reasons mentioned by him in his judgment. For the sake of brevity, we did not want to
reproduce those reasons as advanced by the trial court but we can say that the reasons
for discarding the defence evidence are convincing and we cannot place any reliance on
the plea of alibi advance by Jugal Kishore. We would like to mention here that the
subsequent conduct of accused Jugal Kishore was in consonance to the commission of a
crime because he remained absconding till 26-6-1970 which undoubtedly throws light
on his guilty consciousness. Therefore, this circumstance cannot be overlooked by the
court.
39. The carrying of a pistol by Jugal Kishore was mentioned soon after the incident by

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the eye witnesses and the consistency with which Jugal Kishore's role in the incident
was described by the eye witnesses, hardly leaves any room for doubt to believe that he
was not culprit. We, therefore, feel that Jugal Kishore was present at the Vivekanand
Hostel and specially in the room of Dalip Singh and his presence has been established
beyond ail reasonable doubt.
3. Accused Dharam Pal:
40. Apart from the evidence of the eye-witnesses who had seen this accused in the
room of Dalip Singh and in the Varandha in front of it and also at the lawns of she
Vivekanand Hostel, there is a very convincing circumstance which proves his presence
at the hostel. P.W. 22 Dr. Vijay Bakaya when visited the spot of occurrence, found a
dairy Ex. 4 lying in the Varandha in front of room No. 42. He picked up that diary and
placed it in room No. 42 from where it was recovered by the investigating agency This
diary is admitted by the accused to be his dairy. No reasonable explanation has been
advanced by the accused to explain as to how his diary was found in front of room No.
42 soon after the incident. The presence of diary Ex. 4 is a circumstance which lends
strength to the oral testimony of P.W. 4 and P.W. 6 who had seen this accused at the
place of occurrence. There is no reason to disbelieve Narendra Singh PW4 and Arjun
Singh P.W. 6 who had seen this accused at the place of occurrence where beating was
given to Dalip Singh. This accused also remained absconding till 9-6-1970. This fact,
according to the trial court, indicated his guilty consciousness.
4 1 . The accused has taken a plea of alibi and stated that on 3-2-1970 he filed a
complaint Ex. P.15 personally in the court at Rohtak. But this complaint was not entered
in the register maintained by the court which fact created a genuine doubt in the mind
of the learned trial court for believing the plea of alibi. The complaint was, however,
registered on 5-3-1970. This fact that why it was registered so late, could not however,
be explained by the defence witnesses DW 3 Hukam Chand Jain, however, stated that
this complaint was shown in the cause list on 3-2-70 but according to the learned trial
court, it was done in a very doubtful manner.
42. We have very carefully perused the judgment of the trial court wherein the learned
Judge has very elaborately discussed the statements of the defence witnesses. Judicial
Magistrate Rohtak Shri S.B. Ahuja D.W. 2 was also brought in the witness box but he
was not prepared to identify Dharampal whether he was the same person who had
produced this complaint before him. In the absence of such identification the evidence
of he Magistrate is hardly of any avail to the accused. For the sake of brevity of the
judgment, we would not like to repeat the arguments advanced by the trial court to
reject the defence plea. However, we are one with the trial court to hold that the
defence has failed to prove the plea of alibi of Dharampal.
4. Accused Bhagwan Singh:
43. The presence of this accused Bhagwan Singh Krishnia at the lawns of the hostel has
been established by the evidence of Harish Meena P.W. 11 and Anand Kumar Yogi P.W.
16. The learned trial Judge did not consider this accused as a member of the unlawful
assembly on the basis of his presence at the lawns. In our opinion this approach of the
trial court is not correct. Because the distribution of the lathis on the lawns and
thereafter raising of slogans indicated the intention of the assembly that they had come
to that place to take revenge on Dalip Singh, converted that gathering as unlawful
assembly But in the case of this accused, he was seen by Narendra Singh P.W. 4 and
Shailendra Pathak PW17 who were consistent throughout about the presence of this

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accused in the room of Dalip Singh and also in the Varandah in front of it, clearly goes
to show that he was the member of the unlawful assembly Arjun Singh PW6 also
establishes the presence of the accused at the place of occurrence. The finding of the
trial court that accused Bhagwan Krishnia was the member of the unlawful assembly,
therefore, appears to us to be correct.
5. Accused Rajkumar Gaur:
44. The statement of Arjun Singh P.W. 6 that accused Rajkumar Gaur was seen in the
room of Dalip Singh, proves the presence of the accused in room No. 42 This fact finds
corroboration from the medical testimony which shows an injury on the person of Arjun
Singh. The statement of Arjun Singh is further corroborated from the evidence of PW4
Narendra Singh and P.W. 17 Shailendra Pathak who establishes the presence of the
accused at the scene of occurrence. This fact that Rajkumar Gaur was also seen in the
Varandah is established by Pushpendra Singh P.W. 9. The accused was also seen at the
lawns of the hostel, is proved by the testimony of Harish Meena P.W. 11, Bhoj Raj P.W.
23, Shyam Narang PW24 and Devendra Singh P.W. 37 which also establish the presence
of the accused at the lawns. In our opinion the trial court has rightly held that accused
Rajkumar Gaur was very much a member of the unlawful assembly.
6. Accused Ramchandra:
45. Ramchandra was seen by the witnesses at three places viz; on the lawns, of the
Varandah, Hostel and also in the room of the Dalip Singh. Witnesses Harish Meena,
Anand Kumar Yogi, Ravindra and Gokul have deposed that they had seen the accused
on the lawns of the Vivekanand Hostel. There are two other witnesses, namely, Inder
Singh and Bhoraj who also corroborate the testimony of the aforesaid four witnesses
But the testimony of Inder Singh and Bhojraj has been discarded by the trial court as in
the opinion of the trial court they were wholly unreliable witnesses. Even if we discard
the testimony of Inder Singh and Bhojraj, we find that at there is enough material to
establish the presence of the accused Ramchandra on the lawns.
4 6 . Pushpendra Singh P.W. 9 alongwith Inder Singh and Bhojraj also deposed that
Ramchandra was seen by them in the Varandah. Even if we do not attach any credence
to the testimony of Inder Singh and Bhojraj, there is no reason to disbelieve the
testimony of P.W. 9 Pushpendra Singh specially when the presence of the accused has
been proved by Narendra Singh P.W. 4 and Arjun Singh P.W. 6 in the room of Dalip
Singh. Narendra Singh P.W. 4 has deposed that he was hit by lathi by Ramchandra
inside the room of Dalip Singh. Then he caught Ramchandra which prevented him from
using his lathi to cause any more injuries, to the witness When Narendra Singh caught
hold of Ramchandra in the room, then there is hardly any reason to disbelieve about the
identity of Ramchandra by the witness who was seen by him hitting lathi blows to him
The trial court has placed reliance on the testimony of Narendra Singh and Arjun Singh
and on that basis it has been held that accused Ramchandra was very much present at
the scene of occurrence. We do rot find any reason to take a difference view of the
prosecution evidence on this point. We, therefore, hold that Ramchandra was the
member of the unlawful assembly.
7. Accused Sukhdev Singh:
47. PW17 Shailendra Pathak and P.W. 4 Narendra Singh have deposed on oath that they
had seen Sukhdev Singh in the room of Dalip Singh. The accused was also seen by
Pushpendra Singh P.W. 9 in the Varandah. We do not find any reason to disbelieve the
testimony of these witnesses that undoubtedly establish the presence of the accused at

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the scene of occurrence. In our opinion the trial court has rightly held that Sukhdev
Singh was the member of the unlawful assembly All the seven accused, namely,
Bhagwan Singh Krishnia, Dharampal, Jugal Kishore, Rajkumar, Ramchandra, Sukhdev
Singh and Vijay Poonia have, therefore, been rightly convicted by the court below.
48. Now we take up the appeal of the State.
49. Out of the ten acquitted persons, the State has preferred appeal only against six
accused, namely, Anil Mehta, Behari Modi, Jotram, Mahipal Singh Maderana, Mohan
Krishnia and Omprakash Bishnoi,
1. Accused Mahipal Maderana:
50. We first of all take up the case of Mahipal Maderana against whom. In the opinion
of the trial court, the prosecution has failed to establish the charge of being the member
of unlawful assembly. The trial court has written as many as 28 pages to declare
Mahipal Maderana innocent.
51. The main charge of the prosecution against Mahipal Maderana is that be took the
car of his father who was then a member of the Cabinet and that car was used in
carrying the members of the unlawful assembly and the sticks and iron rods to
Vivekanand Hostel. It is nowhere in the evidence as to what was the registered number
of that car. Every witness who saw the car at various places gave its description as
being an ambassador of grey colour and that there was a red strip on the number plate
of the car. The learned trial Judge on the basis of certain documents which were written
statements given by the alleged eye-witnesses to Dr. Ziayauddin held that documents
Ex. P.4, Ex. P.5, Ex. P.16, Ex P.24, Ex P.25, Ex. P.34, Ex P.35 and Ex, P.36 and also the
first information Ex. P.37 did not give the exact description of the car and some of the
documents did not even mention about the presence of the car and, there-fore, the
learned Judge held that it was doubtful whether the assailants ever used a grey
coloured ambassador car which bore a red strip on its number plate-In the opinion of
the trial court, "the prosecution also failed to prove which case was it exactly, and
where and whom did it belong had also not been proved."
5 2 . The prosecution in order to prove the involvement of Mahipal Maderana in this
episode, traced Maderana's participation right from the place when the car belonging to
the Minister the father of the accused was handed over to him by the driver. Ghunaram
P.W. 13 was the driver deputed on duty with the father of the accused who used to
drive car No. RSL 4734 which was the State car and it had the red strip on the number
plate. According to this witness on 3.2.70 at about 1.30 p.m. the accused asked him to
handover the car for sometime. The car, according to the witness was given to Mahipal
which he took away and it was brought back to the witness at 3.15 p.m. The learned
Judge did not place reliance on the testimony of this witness because according to him,
he changed his version every now and then. Ex. P.17 is the statement of the witness
which was recorded by the Magistrate at Jaipur. Ex. D22 was the statement of the
witness before the C.B.I. when the investigation was taken over by the C.B.I. The
witness was also asked to produce an affidavit sworn at Jodhpur but that affidavit has
not been brought on the record. The learned Judge, however, found that there were
material contradictions in all his previous statements and the statements made at the
trial which rendered the witness unworthy of any reliance.
53. ft may be mentioned here that while assessing the worth of the evidence of this
witness P.W. 13 this fact cannot be lost sight of that he was a petty driver and he was
asked not to make depositions against the son of his master who was holding a very

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high position The affidavit which is said to have been filed at Jodhpur contained that the
car was with him from 8 a.m. till 3.30 p.m. But he resiled from this stand when his
statement was recorded by the G.B.I. and the explanation for taking a different stand
was that he was made to file that affidavit under pressure. In his statement under
section 164 Cr.P.C. Ex. P.17 he deposed that a pressure was brought on him by Shri
parasram Maderana the father of the accused to make a deposition contained in the
affidavit. But he also deposed that he was advised by one Amar Nath Advocate to file a
sworn affidavit. However, the learned Judge was of opinion that this witness was a
person who could swing from one position to another and, therefore, no credence or
value could be put to his statement. We regret that we cannot feel one with the trial
court in discarding the testimony of P.W. 13 Ghunaram. It is true that the witness had
filed a sworn affidavit at Jodhpur saying that the car was with him on 3.2.1970 between
8 a.m. till 3.30 pm but this fact alone cannot make him incredible when he could gather
courage to depose things before the court irrespective of the fact that he was holding a
very insignificant job under the master who happened to be the father of the accuser.
54 . P.W. 13 Chunaram has stated that on 3-2-1970 he was the driver deputed on car
No. RSL 4734 an ambassador car of Sleti colour having a red strip on the number plate
and it was detailed on duty of the Minister Shri Parasrara Maderana. At about 12.45
p.m. the witness returned with this car after delivering lurch at the St. Xavier school
probably taken for the children of Parasram Maderana. On his return he stated that
Mahipal came out of the house and asked the witness to leave him somewhere. The
accused was accompanied by one other boy whom the witness could not identify. After
having gone 2 or 3 furlongs Mahipal asked the witness to handover the car to him. At
first the witness refused, but when an assurance was given by the accused that he
would return within 15 minutes, the car was handed over to him and Mahipal then drove
the car himself and the boy who accompanied the accused went with him. The witness
waited for the car till 3.15 p.m. and it is at that hour that he saw the car returning with
Mahipal alone. In his statement, the witness categorically stated that the fact contained
in the affidavit that the car remained on that fateful day with him from 8 O'clock in the
morning to 3.30 in the afternoon was false. It is true that there are some
inconsistencies regarding the time when the car was handed over to Mahipal but the
witness has definitely stated that on 3.2.1970 he had no watch with him and, therefore,
the time of 1 O'clock or 1.15 p.m. entered in Ex. D.22 was not much significance The
witness was cross examined at length with regard to the affidavit and the contents of
document Ex. D.22. But on a perusal of the statement as a whole, we can say that the
witness Chunaram can safely be relied upon for proving the handing over of the car to
the accused because he has shown courage to help the administration of justice in
deposing things against the interest of his master whom he used to serve and at the risk
of his service.
55. The accused Mahipal was seen by P.W. 18 Chandra Shekhar Singh driving a grey
coloured ambassador car and going towards the University from the sice of the Police
Memorial a little before 2 p.m. P.W. 7 Usha Moza has stated that she had seen a grey
coloured ambassador car at the N.R.S.C. at about 1 p.m. Mr. M.M. Singhvi appearing on
behalf of the accused pointed out the absurdity of seeing the car at 1 p.m. at N.R.S.C.
when the same car alleged to have been driven by Mahipal was seen going towards the
University side a little before 2 p.m. by P.W. 18 Chandra Shekhar Singh. The timings
given by he witnesses however, create a doubt about the presence of the car at N. R
S.C. at 1 p.m. But if we carefully look into the evidence of these witnesses, then the
discrepancy in the depositions about the timings, hardly come in the way of believing
these witnesses because the timings given by them are all approximate and nobody can
say exactly the time at which the car was seen on the University road and at N.R.S.C.

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The estimate of time as deposed by the witnesses may be wrong. P.W. 18 Chandra
Shekhar Singh has stated that he had seen the car about 2 p.m. and a little after 1.30 p.
m Usha Moza P.W. 7 has stated that at about 1.30 P.M. when she was going to the
department of Humanities, she saw a large crowd in front of N.R.S.C. and saw the boys
who composed that crowd going away in a car, motor cycles and three scooters. She
could however recognise Vijay Poonia. The description of the car of grey colour and the
number plate had a reddish strip on it. She, however does name Mahipal as the driver
of the car. But from her statement, it is established that a car of the same description
which was seen by PW18 Chandra Shekhar Singh being driven by Mahipal and going
towards the University was noticed at the N.R.S.G. The difference in time given by the
two witnesses P.W. 18 and P.W. 7 cannot be treated as fatal to the prosecution case
because the timings given by them were all approximate and not exact.
56. It was vehemently contended by Mr. Singhvi that while passing on a read, it was
not possible for Chandra Shekhar Singh P.W. 18 to have identified Mahipal driving the
car. The witness P.W. 18 has stated that he knew-Mahipal from before and the car also,
because this car was brought by Mahipal many a times to the University The another
attack on the testimony of P.W. 18 was that he did not disclose this fact to Dr.
Ziyauddin or to shri Vijay Bakaya that he had seen Mahipal driving the car. For the first
time, it is said that this matter was disclosed after 15 days from the date of the incident
to G.B.I. that Mahipal was seen driving the car of a Sleti colour with a red strip on
number plate on that fateful day towards the University. This attack of the learned
counsel on the veracity of the witness loses its importance when we examine it in the
background of the history of this case. Shri Mahipal being a son of Minister it is alleged
by the prosecution itself, was being helped by the local police and they were out to see
that Mahipal's name may be taken out of the list of the assailants. Sardar Avtar Singh
went to this length to argue that even the name of Mahipal in the written statements
supplied by the alleged eyewitnesses to the warden was scored out from Ex. P.4 and Ex.
P25 which shows the deep interest of the investigating agency which started the
investigation at the initial stage to see that Mahipal may conveniently be taken out of
the list of the assailants. Mahipal's name finds place in three documents Ex. P.4, Ex P.25
and Ex. P.37, the first information report submitted by Dr. Ziyauddin but the name of
the accused is scored out in Ex. P.4 and Ex. P.25. The argument of Mr. Singhvi is that
except that his name does not find place in the first information report Ex. P.37, no
overt act is assigned to him by the maker thereof. Relying on Ramkumar Pande vs. The
State of Madhya Pradesh, the learned counsel urged that the name of Mahipal in the
aforesaid documents cannot, in any manner, be taken out as a piece of evidence against
him and, therefore, importance should not be attached to the mention of his name in
the aforesaid documents. It was also contended that the three wholly reliable witnesses,
namely, P.W. 7, P.W. 12 and P.W. 19 do not name the presence of Mahipal at any stage
and, therefore, the case of this accused should be scrutinised very carefully by the court
because the tendency of the students to involve persons belonging to families having
higher status in the society in such heinous offences, cannot in the opinion of the
learned counsel be ruled out.
57. It is true that the description of the car as given by the witnesses, namely, P.W. 18
Chandra Shekhar Singh, P.W. 7 Usha Moza, P.W. 10 Ravindra Singh, P.W. 5 Inder Singh
and P.W. 8 Vijay Singh does not exactly go to show that it was the same car which was
detailed by the State motor garage for the duty of Shri Parasram Maderana, father of the
accused as none of the witnesses had seen the number of the car which could have
fixed the identity without any possibility of error But this lacuna alone in the
prosecution case cannot be of any avail to the defence to rule out the use of the car by
Mahipal belonging to the State garage and detailed for the duty of the Minister as we

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find that P.W. 18 Chandra Shekhar Singh had seen Mahipal driving that car going from
the Police Memorial towards the University side. We find in the testimony of P.W. 18
Chandra Shekhar Singh that Mahipal was driving the car which was going from the side
of the Police Memorial to the University and he also recognised along with him another
accused Vijay Poonia sitting next to Mahipal towards his left on the front seat. He also
stated that this was the very car which Mahipal used to bring previously also. Mahipal
Maderana and Vijay Poonia were known to the witness and therefore, it was not very
difficult for him to identify these two persons going in that car. The car of the same
description as given by P.W. 18 Chandra Shekhar Singh was seen at the N.R.S.C., at the
canteen and ultimately at the Vivekanand Hostel. At N.R.S.C. Vijay Poonia was identified
by Mrs. Usha Moza P.W. 7. In view of these facts that the car of the description as seen
by P.W. 18 Chandra Shekhar Singh being driven by Mahipal was also seen by other
witnesses at different other places where the crowd went in search of some body, the
presence of Mahipal can safely be inferred.
58. It is true that Usha Moza P.W. 7 did not name Mahipal at the N.R.S.C. but she gave
the description of the car as was seen by P.W. 18 Chandra Shekhar Singh being driven
by Mahipal. Mahipal's presence is proved by the prosecution at the Vivekanand Hostel
where the incident took place. In these circumstances we can safely infer that Mahipal
travelled with the crowd in that car, to the N.R.S.C. and then to the Canteen even
though he was not identified by P.W. 7 Usha Moza and other witnesses. However, the
description that was given by the witnesses about the car leaves no room for doubt that
it was the same car which was seen by P.W. 18 Chand a Shekhar Singh going towards
the University side from the Police Memorial.
59. The learned Judge in this connection scrutinised the evidence of the prosecution
very minutely. But after having perused the judgment of the trial court, we can say that
the learned trial Judge has committed an error in discarding the evidence of the
witnesses mainly on the ground that the evidence of some of the witnesses was not
believed by him when he discussed the case of other accused person. It may be
observed that this was a wrong approach to assess the prosecution evidence A witness
can lie for one accused but that alone is not sufficient to discard his evidence against
the other accused persons We, therefore, reassessed the prosecution evidence very
minutely about the presence of Mahipal Maderana at the scene of occurrence and about
the use of the car which he had brought from his house which belonged to the State
garage.
6 0 . Before coming to the statements of the eye-witnesses who had seen Mahipal
Maderana at The Vivekanand Hostel and specially in the room No. 42 occupied by Dalip
Singh, we would like to deal with certain general criticism levelled by the learned
counsel for the respondents to establish his presence at the scene of occurrence.
61. Mr. Singhvi argued that the testimony of the witnesses, who did not name Mahipal
before Dr. Ziyauddin or before local police when the investigation started, should be
viewed with suspicion. He urged that for the first time Mahipal's name appeared before
the C B.I. after fifteen days of the incident. His contention is that before the
investigation was handed over to C.B.(many of the witnesses did not mention Mahipal's
presence at the spot of occurrence but when C.B.I. took over the charge of the
investigation they started implicating Mahipal. In this connection we may mention that
there was a vide spread resentment in the town of Jaipur about the manner in which the
matters were being investigated by the local police and there was a complete 'Hartal' in
the town where allegations were made that the local police was out to help such
accused persons who were highly connected with the politicians and in this connection

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the names of two accused, namely, Mahipal Singh and Vijay Poonia were mentioned.
Mahipal Singh was the son of the then Minister Shri Parasram Maderana and Vijay
Poonia was the son of the then M.L.A. Gauri Poonia. It was perhaps on this resentment
of the people that the investigation was handed over to C.B.I. The contention of Mr.
Avtar Singh is that in such a background if the name of Mahipal did not find in some of
the documents produced before Dr. Ziyauddin or if the name was entered in the
documents but later on scored out or the statements under sec. 161 Cr.P.C. or 164 Cr. P
C. did not contain the name of Mahipal, it should not be given much importance
because the police itself was out to shield Mahipal accused-respondent and, therefore, it
was but natural that the witnesses who could be persuaded not to name him, might not
have dared to say a word against Mahipal who was being backed by the local police.
The submission made by Shri Avtar Singh cannot be sad to be without force. The
credibility of the testimony of the witnesses who could name Mahipal accused at the
trial, cannot be discarded simply because the name of this accused was not mentioned
in the statement under section 161 or 164 Cr.P.C. or before the Warden who tried to
gather facts from different persons who claimed to have witnessed the occurrence. It
may again be mentioned that the name of Mahipal was scored out from the documents
Ex. P.4 and Ex. 25 produced by the alleged eye-witnesses before the Warden. The
explanation advanced by the witnesses in scoring out the name of Mahipal that they had
named him only on the basis of surmises, does not inspire any confidence. In this
background we now propose to scrutinise the evidence of the eye-witnesses who had
seen Mahipal at the actual scene of occurrence.
62. The entire episode right from the time when the car was taken away from Mahipal's
house and reached Vivekanand hostel and the beating was given to Dalip Singh was
over within about an hour or so and, therefore, if the same car which was seen by P.W.
18 Chander Shekhar Singh going towards the University side, was seen at the
Vivekanand hostel and if Mahipal was found to be present there then we can safely
presume that Mahipal was throughout with the crowd and he visited N.R.S.C. and the
canteen where the same car was seen by the witnesses but Mahipal's presence was not
mentioned by them. Vijay Raj P.W. 8, Kishan Singh P.W. 12 and Devendra Singh P.W.
37 have deposed about Mahipal's presence in the car when it was being driven to the
side of Vivekanand Hostel. Kishan Singh P.W. 12 very categorically stated that when he
was going from the hostel about 2 p m. to the college and was about 50 yards away
from the southern gate of the Vivekanand Hostel, he saw a grey coloured car having a
number plate of Rajasthan State Garage. He could, however, identify accused Vijay
Poonia in that car, but could not identify Mahipal as the driver of that car. Similarly
Devendra Singh P.W. 37 and Vijay Raj P.W. 8 saw the same car going towards the
Vivekanand Hostel but they also do not categorically state that they had identified
Mahipal beyond all reasonable doubt as the driver of that car However Vijay Raj Singh
says that the car was being driven by Mahipal and when the vehicle stopped near the
house of Dr. Ziyauddin, he felt that the person who was driving the car was accused
Mahipal. The statements of these three witnesses, however, do not establish beyond
reasonable doubt that they had seen Mahipal driving the car. From the perusal of the
statements of these witnesses, it appears that they do not want to come out before the
court with a whole truth. In Ex. P. 4 alleged to have been scribed by Vijay Singh and
Devendra Singh, the name of Mahipal was mentioned but later on it was scored out.
Pushpendra Singh P.W. 9 who had named the presence of Mahipal at the scene of
occurrence before the C.B.I. and also named him in Ex. D14 has watered down the force
of his statement by introducing an element of doubt about Mahipal's participation.
6 3 . Bhojraj Singh P.W. 23 has deposed that he had seen Mahipal standing in the
Varandah in front of room No. 42. He also mentioned that Mahipal was driving away the

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car from the scene of occurrence. The learned trial Judge refused to accept this
statement on the ground that he gave four different versions of the incident before he
was finally examined by the trial Court. The previous statements of this witness are
written statement Ex. D.32 given to the warden, his statement under section 161 Cr.P.C.
recorded by the local police and also Ex. D.33 another statement under sec. 164 Cr.P.C.
given to the local police. In his previous statements he did not mention the name of
Mahipal at all. But this variance in the versions of the incident can hardly be pressed
into service because of the attitude of the local police towards Mahipal's case. In his
statement before the C.B.I. Ex. D.32 it was clearly mentioned by him that he had seen
an ambassador car of Sleti colour with a red strip on its number plate beig parked at the
Vicket gate near Dr. Ziyauddin's residence and that Mahipal was standing by the side of
that car when the crowd was just going to disappear from the scene of occurrence. He
also stated that the seat of the driver was occupied by Mahipal when the car was going
away from that place. This statement did not find favour with the trial court because it
was different from his earlier statements recorded by the local police. The learned
Sessions Judge has discussed at length the statement of this witness and gave various
reasons to discard it. But in our opinion the assessment of the evidence of this witness
by the trial court is not correct. The trial court should not have been swayed away by
different versions of the story as recorded by the local police because in this particular
case we find that the role played by the local police at the investigation stage was not
worthy of the task entrusted to them, and, therefore, if any discrepancy was introduced
in the earlier statement then that factor should not wash away the force of the
statements of the eye-witnesses recorded by the court.
6 4 . P.W. 5 Inder Singh is another witness who had identified Mahipal among the
persons who collected on the lawns. His statement was not believed by the trial court
on the ground that he was not examined by the local police nor was he asked to submit
his written statement to the warden of the nature Ex. P. 4, Ex. P. 16 and Ex. P. 24 taken
from other students This fact that the witness did not tell anything about the incident till
he was examined by the C.B.I. also weighed heavily with the learned Judge to discard
his testimony before the court. In our opinion a fact which was so widely known to
everyone, if not repeated by the witness to his friends or to someone, does not render
his testimony unworthy of credence.
65. Another criticism levelled against the testimony of this witness is that he was a
chance witness we are not impressed by the reasoning given by the learned Judge in
discarding the deposition of this witness and we feel that the presence of Mahipal on
the lawn is established.
66. The most important witness in this connection is Narendra Singh P.W. 4 whose
presence inside the room has been established. Narendra Singh has categorically
deposed that Mahipal was one among those who entered the room of Dalip Singh, when
other students rushed into the room. The learned trial Judge did not believe the
statement of this witness mainly on the ground that there have been serious
contradictions between his statement in the court and his previous statement recorded
under section 161 Cr.P.C. by the local police Ex. D.1 The reason for discarding the
evidence of Narendra Singh by the trial court is that in his statement Ex. D.1 he did not
state the name of Mahipal. As already discussed above it is difficult for us to attach any
importance to this type of discrepancies especially when the local police was out to help
the accused. Narendra Singh P.W. 4 who sustained injuries at the hands of the
assailants is a reliable witness. His testimony could not be assailed by the defence
counsel on any other ground except that his previous statements were different from the
statement made at the trial, ft may be mentioned here that this witness right from the

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date he was examined by the C.B.I. remained consistent about the participation of
Mahipal in this episode and therefore, there is no reason for us to disbelieve the
witness.
67. Another argument given by the learned Judge to disbelieve Narendra Singh that his
testimony does not find corroboration from Arjun Singh PW6 who was also present in
the room. Arjun Singh does not name Mahipal. He did not name Mahipal right from the
very beginning. The manner in which the attack was made and the boys rushed into the
room of Dalip singh in a large number with a threatening attitude, it may be possible
that a person present in the room may not have looked at everybody minutely. It was
natural for the inmates of the room to be frightened at the danger that was facing them.
The life of anyone who did not belong to the assailant party could be in danger and,
therefore, if in that atmosphere PW6 Arjun Singh could not observe the presence of
Mahipal in the room, then this factor cannot be pressed into service to render the
testimony of Narendra Singh PW4 unreliable who says that he had seen Mahipal
entering into the room.
68. It was next urged by the learned counsel for the respondent Mahipal Maderana that
another eye witness Shailendra Pathak PW17 does not corroborate the statement of PW4
Narendra Singh Shailendra Pathak PW17 had been declared hostile so far as his
statement relates to the presence of accused Mahipal. In his statement recorded by the
G.B.I. Ex. P6. the witness had mentioned the presence of Mahipal between the portion A
to B, He had also stated between C to D in that statement that Mahipal was carrying iron
rod in his hand but he denied to have made any mention about Mahipal's presence
before the C.B.I.
69. The name of Mahipal was scored out from the document Ex. P 25 and for that the
witness explained that it was however scored out by him on a second thought before he
could handover that document Ex. P.25 to Dr. Ziyauddin Khan. He further stated that he
did so because some students had told him that it may treated complications for him. It
is worthy to note that in his statement under section 161 C.P.C. before the local police,
Ex. P.27 this witness Shailendra Pathak had named Mahipal as one of those who were
present there but he denied to have made that statement (Ex P. 27) about Mahipal
before the local police. Learned counsel for respondent Mahipal wants to take advantage
of the absence of Mahipal's name in the statement of Shailendra Pathak at the trial. The
conduct of this witness regarding his anxiety to save Mahipal is very obvious and,
therefore, this statement of such a hostile witness cannot be pressed into service to
contradict and believe the testimony of other witnesses. Shailendra Pathak PW17 as a
witness who had seen the occurrence from the Varandah. He has supported the
prosecution so far as the rest of the incident is concerned. But for the reasons best
known to him, he is not prepared to speak truth about Mahipal. This attitude of a
witness cannot be permitted to cast shadow of doubt on the statement of Narendra
Singh.
70. In our opinion Mahipal's presence at the scene of occurrence is well established
and, therefore, we cannot endorse the finding of the trial court in this connection. We,
therefore, hold that Mahipal was very much present at the scene of occurrence and that
he was the driver of the car which brought many of the students to the scene of
occurrence along with lathis and iron rods. He cannot, therefore, escape his liability of
becoming a member of that unlawful assembly.
2. Accused Anil Mehta:

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71. The only eye-witness to prove the presence of this accused Anil Mehta at the scene
of occurrence is PW4 Narendra Singh. The name of Anil Mehta does not find place in the
first information report Ex. P.37 filed by Dr. Ziyauddin Khan after taking the written
statements from various boys who were the alleged eye-witnesses to the occurrence.
The name of Anil Mehta was first of all mentioned by Narendra Singh PW4 before the
committing court. Before he was examined in the committing court his statement under
section 164 Cr.P.C. were recorded. Ex. D.1 and Ex. D.2 are the statements recorded by
the said authorities. When he was examined by the C.B.I. the name of Anil Mehta was
not disclosed by Narendra Singh in his Statement in Ex. D.4 It is true that the name of
accused Anil Mehta was specifically mentioned by Narendra Singh in the court but
looking to the facts that even before the G.B.I. the name of Anil Mehta was not
mentioned by him, then it becomes difficult for us to believe the testimony of PW4
Narendra Singh so far it relates to Anil Mehta without any further corroboration from
independent source. It is true that Anil Mehta was identified at the identification Parade
by this witness but that identification is not a substantive piece of evidence and can
hardly remove doubts about the correctness of such an identification when the boy was
no named at all in his previous statements recorded under secs. 161 and 161 Cr. P.C.
and also made before the C.B.I.
72. PW8 Vijay Singh Rajawat is another witness who had named the presence of Anil
Mehta at the lawns of the Vivekanand Hostel but he made a complete somersault in his
re-examination when he stated that he did not at all see Anil Mehta at any time during
the occurrence.
73. Inder Singh PW5 and Harish Meena PW11 have stated that they had seen Anil Mehta
driving a scooter and he was there on the lawns with other assailants but these two
witnesses have not been given any credence by the trial court. Harish Meena's testimony
has been discarded as that of one wholly unreliable witness. We do not find it safe to
convert the acquittal of Anil Mehta into conviction on the basis of uncorroborated
testimony of single witness PW4 Narendra Singh. The finding recorded by the trial court
regarding Anil Mehta is, therefore, uphold.
3. Accused Behari Modi:
74. Accused Behari Modi was acquitted by the trial court because the learned Judge
refused to place reliance on the testimony of PW4 Narendra Singh who had deposed
that he had seen Behari Mudi in the room of Dalip Singh. The learned Judge refused to
accept the correctness of this statement because in his opinion it was not corroborated
by any ether evidence. The evidence about the presence of the accused in the room was
not likely to be corroborated by any other evidence unless the accused was identified by
another witness Arjun Singh PW6 who was inside the room and, therefor, if the
statement of Narendra Singh PW4 is not corroborated by his colleague Arjun Singh, it
cannot be discarded on that ground alone. But before we discuss the statement of
Narendra Singh, we would like to find out whether the presence of Bahari Modi was
witnessed either on the lawns or in the Varandah by some of the eye-witnesses or not.
Vijay Singh Rajawat PW7 has deposed that he had seen the accused among the
assailants in the Varandah. This evidence has not be believed by the learned Judge
against Behari Modi because a part of this evidence was discarded by him in respect of
accused Jotram. This sort of assessment of the evidence is unknown to the criminal
jurisprudence that if a witness is not relied upon partly in respect of one accused then
he should not be relied in respect of any other accused without any reason or rhyme.
75. Anand Kumar Yogi PW16 and Devendra Singh PW37 categorically stated that they

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had seen Behari Modi on the lawns. This part of the evidence was rejected to involve
Behari Modi by the trial court on the ground that on the lawns the assembly was not an
unlawful one and, therefore, no offence was committed by the accused. But this
approach is erroneous. This evidence is undoubtedly establishes his presence on the
lawns.
76. Ravindra Singh PW10 had seen this accused on a motor cycle at the Canteen But
that statement was also rejected by the trial Court because in the opinion of the learned
trial Judge, it cannot be accepted without corroboration. The learned Judge also while
acquitting the accused observed, "moreover, presence before reaching the Varandah
was not culpable at all" In our opinion this approach was wholly uncalled for because
we are definitely of opinion that the assembly became unlawful as soon as the arms
were distributed and the slogans were raised by some of the members on the lawns.
However, the testimony of PW4 Narendra Singh is very clear that the accused was inside
the room. In his previous examination recorded on 3-2-1970 by the police Ex. D1, the
name of Modi find a mention. Similarly in Ex. D2 also mention of Modi is found in that
statement. Learned counsel urged that Modi is not sufficient to indicate the presence of
Beheri Modi as in his opinion another Modi could be present at the scene of occurrence.
But if the state men' of PW4 Narendra Singh is read as a whole then it becomes clear
that be had mentioned full name of Modi in his statement Ex. D.4 when he was
examined on 21.2.1970 by the C.B.I. In his written statement filed before the warden
Vijay Singh Rajawat PW8 specifically mentioned the presence of this accused in Ex. P.4.
In our opinion the learned trial Judge has not correctly assessed the evidence that has
been brought on the record by the prosecution about the presence of this accused and,
we therefore, take a view that Behari Modi was present at the scene of occurrence and
that he even went. Inside the room where Dalip Singh was belaboured by the mob.
77. It was next contended that no overt act has been assigned to Behari Modi and,
therefore, the order of acquittal should not be converted into that of conviction. We
regret, we cannot accept this argument as we are of opinion that whether any member
of the unlawful assembly actively participated in the act of beating or not, he cannot
escape form the liability of the actions of other members of that unlawful assembly. In
such circumstances we are left with no alternative but to set aside the finding of the
trial court and hold that Behari Modi was the member of the unlawful assembly.
4. Accused Jotram.
7 8 . PW8 Vijay Singh Rajawat, PW16 Anand Kumar Yogi, PW37 Devendra Singh and
PW38 Gokul Singh have deposed that they had seen accused Jotram on the laws of the
Vivekanand Hostel. Vijay Singh Rajawat PW8 has further deposed that he had seen
Jotram in the Varandah also. This statement of Rajawat does not find support from the
deposition of Pushpendra Singh PW9 who says that Jotram was one of the assailants
standing in the Varandah in front of room No. 42. Three other witnesses, namely, Inder
Singh PW5, Bhoj-raj Singh PW23 and Harish Meena PW11 also gave the statement
against this accused but the learned trial court refused to place reliance on their
evidence as they have been categorised by the court as wholly unreliable witnesses.
79. Vijay Singh Rajawat's statement to this extent was disbelieved by the court below
that from the position he is said to have witnessed, he could not see the Varandah in
front of room No. 42 as there was a projection in the building which obstructed the
sight of a person who was standing at a place from where Vijay Singh was said to have
witnessed the occurrence. It is difficult to locate the exact position from where Vijay
Singh Rajawat had actually witnessed the scene and, therefore, the doubt that it created

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in the mind of the court below about seeing the presence of this accused in the
Varandah by Vijay Singh Rajawat, cannot be said to be unfounded. However, P.W. (9)
Pushpendra Singh states that he had seen Jotram standing in the Varandah. But
Pushpendra Singh's testimony does not find corroboration from either PW4 Narendra
Singh PW6 Arjun Singh or PW17 Shailendra Pathak who had actually seen the
occurrence inside the room and from the Varandah in front of the room. In such
circumstances the benefit of doubt extended by the court below to this accused is not
unjustified.
8 0 . As regards the statements of Anand Kumar Yogi PW16, Devendra Singh PW37,
Gokul Singh PW38 and also Vijay Singh Rajawat P.W. 8 about the seeing of this accused
on the lawns, the learned Judge has not accepted that evidence. The grounds for
discarding this evidence are not very convincing but this is a case of acquittal and,
therefore, when benefit of doubt has been extended by the trial court to this accused,
we would not like to interfere with it so lightly. In such circumstances the appeal of the
state against this accused fails.
2. Accused Omprakash Bishnoi:
81. The prosecution evidence of witnesses Arjun Singh P.W. 6, Vijay Singh PW8 and
Pushpendra Singh PW9 go to establish the presence of this accused in Varandah. The
learned Judge did not place any reliance on the testimony of Vijay Singh PW8 regarding
his evidence of seeing the accused in the Varandah because in the opinion of the court
he was not in a position to see Varandah from the place where he was standing. On this
account we, too, did not give much credence to the statement of Vijay Singh Rajawat
But we find hardly any reason to discard the testimony of Arjun Singh PW6 which finds
corroboration from the statement of PW9 pushpendra Singh. The learned trial court did
not believe Pushpendra Singh, because in its opinion his statement about the presence
of the accused in the Varandah did not find corroboration and similarly the evidence of
Arjun Singh was discarded by the court below that two eye-witnesses Narendra Singh
and Shailendra Pathak did not support his version about the presence of the accused in
the Varandah. On the basis of this reason benefit of doubt was extended to the accused
and he was acquitted of all the charges we cannot endorse the reasoning of the court
below in discarding the testimony of PW6 and PW9. PW6 Arjun Singh is a person who
had suffered injuries at the hands of the assailants inside the room and he has pushed
out of the room after giving a thrashing to him by the assailants. We have placed
reliance on the testimony of this witness There is no reason to discard his testimony so
far it relates to the presence of Omprakash Bishnoi especially when his substantive
testimony is supported by the evidence of Pushpendra Singh PW9. Seeking
corroboration for every witness who has been relied upon by the court below in
connection with other accused persons convicted by it is not a correct approach to the
problem. In our opinion, there is hardly any reason to raise any doubt about the
presence of this accused.
82. The Supreme Court has rightly said that the doubt must be of reasonable nature
and not a vacillating one. In the present case the doubt that has been shown by the
court below is not that of a reasonable kind and we, therefore, cannot endorse its
finding regarding the acquittal of Omprakash Bishnoi. Even if we do not place reliance
on the statement of PW8 Vijay Singh Rajawat, whose exact position has not come on
the record from where he is said to have seen the occurrence, there is ample evidence
about the presence of Omprakash Bishnoi in the varandah. We cannot discard the
testimony of Arjun Singh PW6 and Pushpendra Singh PW9. In view of these
observations, we are constrained to set aside the order of acquittal of Omprakash

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Bishnoi.
6. Accused Mohan Lal Krishnia:
83. The participation of this witness has been proved by the testimony of PW23 Bhojraj
Singh and PW38 Gokul Singh. Bhojraj Singh has not been believed by the court below
as he has been dubbed by the learned trial Judge as wholly unreliable witness. We
carefully perused the sole statement of Shri Gokul Singh PW38 and we find that he is,
too, silent about the presence of this accused at the scene of occurrence. He has,
however, named on Bhagwan Krishnia and not Mohan Krishnia. The appeal against this
accused, therefore, fails and is hereby dismissed.
84. The question, therefore, arises as to what offence was committed by the members
of the unlawful assembly. The incident took place on 3rd of February, 1970 and Dalip
Singh died on 14th February, 1970 In order to find out the guilt of the assailants, we
shall have to look to the physical condition of Dalip Singh after the incident. On 12th of
February, 1970 a team of doctors came from Delhi and Dalip Singh was examined by
them. The injuries were, no doubt, noted by the local doctor soon after the incident but
that injuries report has not been brought on the record and proved by the prosecution.
It is however, admitted by the parties that the injuries noted by the doctor on 13.2.1970
were not very much different from the injuries which were noticed by the doctor soon
after the incident. Dalip Singh was found to have sustained the following injuries:
i) Irregular healed scar 1" x 1/4" on the left side of forehead just above the
eyebrow.
ii) Irregular healed scar 1/2" x 13" on the left side of forehead 1st above to
injury No. 1.
iii) Irregular healed scar on the middle of forehead extending from the root of
nose 1"x 14".
iv) Irregular lacerated wound in healing stage 1 1/2" x 3/4" x 1/2" on the left
side of head of anterior part.
v) Bruising of both upper and lower lids of both eyes more marked on the right
side.
vi) Healed scar about 2" x 1/4" lying obliquely on the left side of face near the
nose.
vii) Healed scar on the left side face 1" x linear on the cheek.
viii) Irregular healed scare 1" x 1/4" just above the right eye brow.
ix) Irregular healed scar 1" x 1/4" at the level of right eye brow.
x) A scar (healed) on the right side face lying obliquely 1" below the right eye
covered with scalp outside.
xi) Healed scat on the chin 1" x 1/4".
xii) Healed wound on the inner side of the upper lip middle part 1" x 1/6".
xiii) Healed wound on the anterior part of the tongue 1/2" x 1/4".

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 xiv) Abrasion (healed) 1/2" x 1/2" on the front of left knee.
xv) Healed abrasion in circular rash on the left forearm lower third outerside 1"
in diameter.
xvi) Incised wound in healing stage on the right palm partly across the index
finger and partly on the distal part of the palm over the forth and fifth
metacarpophalangeal joint.
2--After post mortem examination the following injuries on the head and face were
noted down: --
i) Irregular healed scar (recent) 1" x 1/4" on the left side of forehead just
above eyebrow.
ii) Irregular healed scar 1/2" x 1/3" on the left side forehead one inch above to
injury number one.
iii) Irregular healed scar on the middle of forehead extending from root of nose
1" x 1/4".
iv) Healed scar 2" x 1/4" lying obliquely on the left side of face near the nose.
There was fracture of upper part of bridge of nose
v) Irregular lacerated wound in healing stage 1 1/2" x 3/4"x 1/2" on the left
side of head anterior part.
85. The doctors also found the scalp tissues showed extensive bruising comminuted
fracture of Skull starting from left frontal bone running backwards and upwards to the
coronal suture then running along the line of suture to right side of head back to
parietal bone right side. There was branching of main fracture line going from left
frontal bone to left temporal bone. The fracture of left temporal extended upwards to
join the main fracture line at the region the coronal suture. Extradural haemorrhage 3
1/2" x 1 1/2" on the right fronto parietal region and localised extradural haemorrhage
present on the left frontal region. Subdural haemorrhage on left occipital lobe present.
Subarachnoid haemorrhage present on left frontal temporal and right frontal and
dorsum of cerebellar (both) lobes, fracture of right orbital plate medical side. Brain
surface congested, meaning as congested, contusion of left frontal and right frontal lobe
medical side, right temporal and right occipital lobe present cut surface of the brain
shows areas of contusions 1/2" deep in the brain tissue. Fracture of right orbital plate
medical side present.
86. In the opinion of the doctors the cause of death of Dalip Singh were two fold,
namely,
(i) Extensive head injuries resulting in multiple fracture of Skull bones and
contusions of brain,
(ii) Bilateral lung abscesses, bilateral pulmonary infractions and left side
Pyopneumothorax. This condition had most probably been caused by hypostatic
congestion and super imposed infection.
87. It was urged by learned counsel for the State that irregular lacerated wound on the
left side anterior part and elsewhere on the head of Dalip Singh caused extensive head
injuries resulting in multiple fracture of Skull bones and contusion of brain which were

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sufficient in the ordinary course of nature to cause death and, therefore the case falls
under section 302 I.P.C. and not section 304 Part II.
88. Learned counsel appearing on behalf of the accused on the other hand urged that
Dalip Singh died actually on account of complications which arose subsequent to the
attack. The question, therefore, is whether Dalip Singh died of extensive head injuries
or on account of complications which arose independently of the injuries. PW1 Dr.
Jagdish Chandra who was one of the members of the team of experts seat for from
Delhi to examine Dalip Singh, was definitely of opinion that the injuries sustained by
Dalip Singh were the result of several blows. Under the heading "head and face" in
document Ex. P. 21 injury No. 5 relates to the fracture of skull. In his opinion this injury
was sufficient in the ordinary course of nature to cause death. In the opinion of the
doctor injury No. 5 was caused by severe force The head injuries were the result of
multiple blows and according to him the patient had sustained head injuries which
could have caused death in the ordinary course of nature. In the opinion of doctor
Jagdish Chandra, the injuries sustained by Dalip Singh were severe and serious and
even if pneumonia had not supervened, the chances of Dalip Singh's living were
remote. In his cross-examination PW1 admitted that the haemorrhage was not every
extensive and could not be detected by encephalography. The ventricles of the brain
were alright. He further stated that there was no infection in the brain of Dalip Singh
and his wounds were not even infected externally, and therefore, in his opinion the
survival of a patient in such condition depended on the extent of injuries on brain
surface and pathologically and clinically damaged brain was the criteria for the severity
of the condition of a patient and not the fracture of skull.
89. P.W. 2 Dr. Harpal Singh Ahluwalia who was another member of team of doctors
came from Delhi and who happened to be a vary eminent surgeon in Neuro surgery in
the Safdarjung Hospital stated as follows:--
"I thought the injury No. 4 (irregular lacerated wound in healing stage 1-1/2" x
4/4" x 1/2" on the left side of head of anterior part) of Dalip Singh might be
fatal." There was no laceration in the brain The pressure was not raised in the
brain by any sort of hemorrhage therein since none of these hemorrhages were
more than 1 mm. in thickness and could not have been defected either
radiologically or through Fundoscopy. All sorts of hemorrhages caused no
pressure on brain as they are usually associated with brain damages and merely
represent a little leakage of blood at the site of the injury. There was no gross
paralysis but in an unconscious patient it is not easy to detect to an exact
degree since the patient's co-operation is required to make an exact
assessment."
90. The brain damage was caused by the injuries, namely 1, 2, 3, 5 and 8 under the
heading "Head and Face" of the post mortem report. In the opinion of this doctor the
combination of brain damage caused by stress waves and by rotational and shearing
strains together with the possible collapse of any cavity formation and submicroscopic
damage to the brain stem resulted in his death. He further deposed "since in any event,
I have stated that the head injury would have been fatal and the prevention of lung
complications could not have altered the eventual out come." He also stated that "there
was overwhelming brain damage quit sufficient to cause death without the presence of
lung complications, which, however, did occur and may have changed in relation to
time only when death would occur." He was, therefore, definite that in case of Dalip
Singh, brain damage was responsible for his death.

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91. The second cause of death as put down by the doctor in the post mortem report is
attributed to bilateral lung abscesses, pulmonary infections and left side pneumothorax
the complications which arose and cause hypostatic congestion and super-imposed
infection which in their opinion were the direct result of the head injuries and contusion
on brain.
92. It is admitted by the doctors that the hypostatic congestion in the lungs was due to
severe head injuries. The doctors also opined that pneumothorax was not the immediate
cause of death in the case of Dalip Singh. Dr. Jagdish Chandra also explained that
hypostatistic congestion was not due to only the patient lying in one posture. In this
case it was due to the brain damage done to Dalip Singh. In general the photastic
congestion is the result of head injuries, PW-1 Dr. Jagdish Chandra was also of opinion
that in severe head injury eases, the hypostatic congestion will be present inspite of the
measures taken to maintain always clear of obstruction.
93. It was also in the evidence of the doctors that the doctor attending Dalip Singh
administered decadron to him on 12.2.1970 but it was stopped on 13-2-1970.
94. On 13.2.1970 at about 11 the patient was examined by Dr. Jagdish Chandra and he
agreed that when the infection was present and decadron was administered so that
infection may slightly be subdued PW-2 Dr. Ahluwalia also admitted that without
pulmonary and chest complications, there may have been slight chance of the survival
of Dalip Singh. Fundoscopy test was applied and no evidence was found of increased
pressure. He also admitted that decadron was continued till 14.2.1970 as per record. He
expressed chat decadron could retard the rate of repairs of wounds and interfere with
the formation of granulation tissue. If the infection was known to be serious, he
probably would not have advised the administration of decadron. But when the patient's
life was found to be in danger from damage to the brain end there was only mild or no
infection the consequence of not giving decadron were to be weighed very seriously.
95. It was argued with all vehemence by the defence counsel that it is not a case of
minder by the assailants but it was really a case of murder by the doctors who
administered decadron which retarded the progress of the patient and accelerated his
death. The defence also brought in the witness box Dr. Dugar but nothing could be
elicited from him regarding the cause of death. He also could not help the defence to
lend support to the theory of the defence that the death was accelerated due to the
administration of decadron.
96. The real question is whether death was the direct result of the injuries sustained by
Dalip Singh at the hands of the assailants The learned trial judge believing on certain
observations of Taylor in his book 'Principles and Practice of Medical Jurisprudence' Vol.
I 12th Edn., observed that in all cases where wounds have been criminally inflicted and
death ensues, a medical witness must be most careful in his assessment of their
contribution to the cause of death. There may be only one principle cause of death,
though other circumstances may have contributed to a fatal result and it is in these
circumstances it was essential when several causes for death have been described to
determine which was the principal cause. In the opinion of the learned Judge, the
doctors had mentioned two causes of death but from the perusal of their testimony the
court could not discern as to which was the principal cause of death. It is true that
complications did arise in the case of Dalip Singh and lung abscesses, pulmonary
infarctions and left side pneumothorax which caused hypostatic congestion and super
imposed infection due to head injuries were found but if the evidence of the doctors
was carefully studied by the learned trial Judge then in our opinion, he would not have

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arrived at any other conclusion except that the head injuries were the real cause of
death of the deceased. The learned Judge has tried to go deep in the matter to find out
some other cause of the death of Dalip Singh but the deeper he tried to go, he invited
greater chances of error to arrive at the right conclusion. Quotations from Taylor's book
from page 182, in our opinion, had hardly relevance to the circumstances of the present
case. Dr. Ahluwalia and Dr. Jagdish Chandra both are of the opinion that the real cause
of death was the head injuries sustained by Dalip Singh at the hands of his assailants
and whatever complications subsequently arose, they were all due to those injuries. In
these circumstances we cannot uphold the conclusion of the trial court that the case did
not fall within the mischief of section 300 I.P.C.
97. Clause Thirdly, of section 300 clearly lays down that if the act is done with the
intention of causing bodily injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause death, then the culpable
homicide will be a murder. In the present case, it cannot be denied that the injuries
sustained by Dalip Singh were intentionally caused and the nature of the injuries
sustained by the injured shows that considerable force was used in a manner which
caused multiple fractures on the head of Dalip Singh. It was also found that the chip of
the bone was separated from the skull bone and that piece was found from the room of
Dalip Singh. This shows the extent of force used in belabouring the deceased and also it
throws sufficient light on the callous attitude of the associates in taking revenge from a
helpless person who was surrounded by a number of persons armed with deadly
weapons. The nature of the injuries caused, were in the opinion of the doctors,
sufficient in the ordinary course of nature to cause death and, therefore, the accused
who formed unlawful assembly to cause bodily injuries to Dalip Singh, which in the
ordinary course of nature were sufficient to cause death, cannot escape their liability for
the commission of an offence which squarely falls under section 302 of the Indian Penal
Code.
98. The result of the above discussion is that the appeal No. 977 of 71 Jugal Kishore
Singh and others vs. The State and S.B.Cr. appeal No. 1001 of 1971 Vijay Poonia and
another vs. the State fail and they are hereby dismissed. The appeal of the State of
Rajasthan against acquittal of convicted persons for an offence under section 302 I.P.C.
is allowed and it is held that all the accused persons who were found to be the
members of an unlawful assembly at the Vivekanand Hostel were guilty of an offence
under section 302/149 I.P.C. Their conviction under section 304 Part II I.P.C. and the
sentences awarded to each one of them under that offence are set aside and instead
they are convicted under section 302/149 I.P.C.
9 9 . The appeal of the State against Anil Mehta, Jotram and Mohanlal Krishnia is
rejected. The State appeal against Behari Modi, Mahipal Maderana and Omprakash
Bishnoi is allowed and all these three accused persons, namely Behari Modi, Mahipal
Maderana and Omprakash Bishnoi are found guilty for an offence under section 302/149
I.P.C.
100. All the accused persons belonged to the student community at the time when they
committed the said offence. Vijay Poonia was their leader and the role played by
Mahipal Maderna is also not of an insignificant nature. It is really unfortunate that these
students took the law in their own hands to wreak vengeance against their rival Dalip
Singh and belaboured him to such an extent that the injuries caused by the assailants
hardly left any scope for the survival of the injured and consequently the victim
ultimately died on 14th of February, 1970. It is a matter of common knowledge that
lately indiscipline has started making inroads in the life of the student community, and

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the mischie-vious elements have become so boisterous and unruly that they even left
showing respect for the law of the land. The present case is a grim testimony of this
fact and it shows that the student community would not only go to the length of taking
revenge upon their rival but they would not hesitate to resort to violence with impunity
so as to do away with a person whom they did not like. It is a matter of regret that the
local investigating agency, which should have acquitted itself as an impartial instrument
to bring such element to book promptly, chose to act in a partisan spirit. It was on
account of the handing over of the investigation to C.B.I. that the real culprits could
ultimately be brought to the court of law and stood their trial. The circumstances in
which this incident had taken place leave no room for showing leniency to such
students who had scant regard for law and, therefore, if there had not been such a big
time-lac Between the incident and the day of judgment, we would have prescribed the
maximum penalty of death to Vijay Poonia, who appeared to be the brain behind this
episode. But after about eight years of the incident, we would not like to inflict the
extreme penalty and we feel contented by awarding the lessor punishment prescribed
under section 302 IPC.
101. It was argued by learned counsel for the accused persons that looking to the age
of the culprits and looking to the fact that some of them have already entered into their
life and some are going to settle in their life, a very lenient view must be taken in
judging their guilt. But this argument does not appeal the Judges who are made of
sterner stuff and must take a practical view of legitimate inferences flowing from
evidence, circumstantial or direct, A very pious duty is cast on the judicial courts to see
that the soeicty is saved from the wanton acts of those who want to take the law in their
own hands and, therefore, in the discharge of our sacred function, we do not feel
hesitant in pronouncing the life sentence to each one of the accused persons who were
found to be the members of the unlaw full assembly cannot escape from the vicarious
liability that fell on them on account of section 149 I.P.C. and, therefore, we hold that
accused Bhagwan Singh Krishnia, Dharampal, Jugal Kishore Singh, Rajkumar,
Ramchandra, Sukhdeo Singh, Vijay Poonia Mahipal Maderna, Behari Modi and
Omprakash Bishnoi are guilty of committing murder of Dalip Singh and each one of
them is sentenced to imprisonment for life.
1 0 2 . Since the accused persons have been found guilty of murder, benefit of the
provisions of probation of Offenders Act cannot be extended to them. The revision
petitions No. 744, 746 and 748 of 1971 are dismissed.
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