Jwala Prasad Tewari vs State of Uttar Pradesh

D.V. Sharma, J.—All the above mentioned appeals arise out of the same judgment and order dated 31.10.1984 passed by 1st Additional & Sessions Judge, Barabanki in joint criminal trials, leading case of which is Sessions Trial No. 90A of 1974, convicting and sentencing the appellants to undergo 3 months'' R.I. under section 147,I.P.C., 3 months'' R.I. under section 120B, 3 months'' R.I. under section 162 read with section 149 I.P.C., 3 months'' R.I. under sections 343 read with section 149, 3 months'' R.I. under section 353 read with section 149 I.P.C., 3 months'' R.I. under Rule 119 (5) of the Defence of India Rules, 6 months'' R.I. under Rule 43 (5) of the Defence of India Rules, 6 months'' R.I. under section 365 read with section 149 I.P.C., 6 months'' R.I. under section 6 (b) and 6 months'' R.I. under section 7 (c) of the P.A.C. Act read with section 149 I.P.C. All the sentences were ordered to run concurrently, but the appellants were acquitted under sections 148 and 332 read with section 149 and 409 read with sections 149 and 394 read with sections 149 and 506 read with sections 149 and 504 read with sections 149 and 393 read with sections 149 and 384 read with sections 149 and 395 I.P.C., under sections 25 and 27 of the Arms Act and section 6 (c) of P.A.C. Act, read with section 149 I.P.C.

At the very out set we may point out that two accused persons namely Ziledar and Chandrashekher have not filed any appeal. Appellant Brahm Bux Singh, Ali Husain and Ram Sajan are reported to be dead, hence their appeals stand abated.

The factual matrix is as under: In Uttar Pradesh Provincial Armed

Constabulary (hereinafter referred to as P.A.C.) is an armed force and regulated by Provincial Armed Constabulary Act, 1948, wherein all sorts of strike or indiscipline are not permissible. Unlike other civil services, this disciplined force has not been authorized to form any union. Thus all sorts of union activities were not permissible to the members of the Provincial Armed Constabulary. The State Government was satisfied that there was great unrest in different battalions of the Provincial Armed Constabulary located at different places. Since these battalions were armed with firearms, accordingly it was considered that before taking any dangerous recourse, it would be better that the Quarter Guards of different battalions should be kept under the charge of the Army. Quarter Guard is the place where the arms and ammunitions are stored. The out break of unrest started at Jahangirabad, Barabanki where battalion No. XA of the Provincial Armed Constabulary was located under the charge of Commandant Shri S.N. Gupta. Having regard to the indiscipline, unrest and other incriminating activities the report was lodged at P.S. Masauli, districtBarabanki about the incident. The F.I.R. discloses that under the Government Orders communicated through the superior officers to the commandant, it was considered desirable to hand over the charge of Quarter Guard to the Army. Shri S.N. Gupta directed Shri R.B. Singh, adjutant PW1 to relieve the P.A.C personnel, who were entrusted to the security of the Quarter Guard. At about 2.00 a.m. in the night intervening 21/22.5.1973. Shri R.B. Singh went to take charge of the Quarter Guard so that it might be in the charge of the army. Sri M.P. Misra, Company Commander had to guide the army from Lucknow to Jahangirabad. In the same night at about 2 a.m. Dy. Superintendent of Police Sri B.B. Jatav along with R.I. Sri Shyam Srivastava and one Constable arrived at Jahangirabad in a Jeep, wherefrom they had to go with a Company Commander in the area of Police Station Deva, District Barabanki in order to disarm the unit of P.A.C. already deputed there.

The complainant Sri S.N. Gupta along with Nand Lal Singh, Assistant Commandant Sri R.B. Singh, Adjutant and Sri Jatav was sitting at his Bangalow in proper uniform awaiting arrival of the army. On arrival of the army Sri R.B. Singh, Adjutant went towards quarter guard and ordered the Sentries to hand over their rifles. The Sentry Constable Lallan Pandey at once handed over his arm, but other Sentry Constable Shiv Kumar Pandey told the Adjutant that he would hand over his arm only if ordered in writing. The Adjutant started writing and in the meantime accused persons Head Constable Pati Ram Yadav, Subedar Sharma and Constables Shiv Kumar Pandey, Ram Chandra Singh and Natha Ram, who were also on duty at the quarter guard interfered and obstructed the Adjutant while he was discharging his official duty and was in proper uniform.

Sri R.B. Singh ran from that place and told the informant Sri S.N. Gupta about the incident. While the informant along with Sri Nand Lal Singh was in the way to quarter guard on a Jeep, on the exhortation of accused, Head Constable Pati Ram Yadav took position and compelled the Bugler to blow double bagel, as a result of which more than four hundred P.A.C. personnel arrived at that place.

They in pursuance of their common object closed gate No. 1 of the fort at once so that the vehicles of the army might not come in. Thereafter leaving Nand Lal Singh, Assistant Commandant with the army personnel, the informant, Major Karmwala, Company commander Sri M.P. Misra and Adjutant Sri R.B. Singh came inside the fort through canteen. Sri S.N. Gupta, the Commandant, declared the crowd of J.A.C. personnel deputed at the quarter guard as an unlawful assembly and he ordered them to disperse and also to obey the orders of the Government and to maintain discipline but the P.A.C personnel named below refused to obey the orders of the Commandant and repeatedly excited their other companions to become mutinous:

Head Constables (1) Brahma Baksh Singh, (2) Gulab Singh (3) Ram Chandra Singh, (4) Pati Ram Yadav, (5) Govind Singh, (6) Hunar Deo Yadav, (7) Abdul Salam and Constables (8) Fateh Bahadur Singh, (9) Vijai Bahadur Singh (10) Sheo Harsh Pandey, (11) Sanjay Singh, (12) Badruddin, (13) Deota Singh, (14) Sheo Prasad Rai, (15) Ram Deo Yadav, (16) Jwala Prasad Tewari, (17) Roop Chand, (18) Chandra Shekhar Misra, (19) Mohd. Shammim, (20) Subedar Sharma, (21) Ishtiyaq Ahmad, (22) Sheo Kumar Pandey, (23) Ram Chandra Yadav, (24) Natha Ram, (25) Siya Ram Singh, (26) Shyam Prakash Singh, (27) Ziledar Misra, (28) Uma Shanker Pandey and (29) Sheo Mani Kushwaha. However, on their protest Major Sri Karmwala fixed 5 a.m. for taking charge of the armory but the accused refused to hand over charge and told the Commandant that they would go to Lucknow to verify the genuineness about the concerned Government Order. Considering the gravity of the situation the Commandant Sri S.N. Gupta allowed Head Constable Amin Beg, Constable Munna Tewari, Satish Chandra Misra and Jwala Prasad Tewari to go to Lucknow for the purpose. Thereafter when complainant Sri S.N. Gupta, the Commandant, reached the gate of the canteen to leave Major Sri Karmwala out of the fort, he found that the gate was closed and it was not opened even on his order.

At that time Sri A.K. Srivastava, Company Commander came to the complainant from the crowed of P.A.C. personnel in a perplexed condition and told him that the accused persons Constable Sheo Harsh Pandey, Fateh Bahadur Singh, Siya Ram Singh and others had obstructed him in discharging public duties, and tried to snatch away the keys of the armory and also compelled him to hand over the keys. The complainant Sri Gupta helped the Company Commander Sri A.K. Srivastava and Major Karmwala in climbing over the roof of the kitchen of the canteen and in jumping down from there outside the boundary wall of the fort. Thereafter the complainant was engaged in pacifying and cooling down the crowd so as to avoid use of force by the army, but the aforesaid personnel captured the informant Sri S.N. Gupta, Commandant, and took him forcibly to the officer''s club where the complainant found that Adjutant Sri R.B. Singh P.W.I, Quarter Master Mahabir Singh P.W.3, Company Commander B.K. Chaturvedi P.W.8, O.J. Turner, Mahendra Prakash Misra, Onkarvan K.K. Srivastava Subedar Adjutant, Rama Kant Giri, Platoon Commanders Man Bahadur Singh, Ram Surat Ram and Alamdar Husain, Deputy Supdt. of Police Sri B.B. Jatav and SubInspector Shyamji Srivastava had already been confined. They remained in wrongful confinement upto 9.00 a.m. on 25.5.1973 and they were not allowed to move on their own volition. They were also given threats of their lives. The crowd did not allow the Constable Driver Kapil Dev of District Police to go out of the fort from the officer''s club. The complainant saw that P.A.C. personnel started breaking locks of the armories and magazines at the quarter guard and more than four hundred P.A.C. personnel armed themselves with different fire fighting equipment like rifles, stengun, L.M.G. grenade etc. and took position inside and also on the roof of the fort. They were prepared to fight with the army and started challenging the army that they should return back otherwise a fight would take place.

Thereafter when the army personnel tried to enter the fort by scaling down the boundary wall, the P.A.C. personnel challenged them and made them to run away. The P.A.C. personnel were shouting and warning the army personnel that in case firing open, they would kill the persons under confinement.

According to the F.I.R. version on 22.5.1973 at 7.30 a.m. Head Constable Bramha Baksh Singh, Gulab Singh, Ram Chandra Singh, Shyam Sunder Singh, Huner Dev Yadav, Fateh Bahadur Singh, Sanjay Singh and Siya Ram Singh compelled the complainant on the point of bayonet and obtained his signatures on a typed order wherein the matter of using arms of the armory in selfdefence by breaking its locks was mentioned. On that very day at about 9 or 10 p.m. the District Magistrate and Superintendent of Police, Barabanki also persuaded the P.A.C. personnel, but they were not ready to obey the orders. On 24.5.1973 the I.G. also visited the place of occurrence and addressed the Jawans to obey the orders, consequently they were prepared to surrender and deposit the arms on 25.5.1973. On 25.5.1973 at 9.00 a.m. the P.A.C. personnel took the complainant out of the room of confinement by opening gate No. 1 and told him to take Sri Gulati D.I.G. (P.A.C.) inside the fort and then before whom they deposited the arms and ammunition of the armory, which could be completed by 4.00 p.m. and a shortage of hundred cartridges of 303 rifles was detected.

Sri S.N. Gupta got scribed a written report (Ext.Ka7) in Hindi by Mahavir Prasad P.W.3 the then Quarter Master and put his signature in English and sent the same to P.S. Masauli through Sri Nand Lal Singh Assistant Commandant, on the basis of which a check report Ext.Ka46 and copy of general diary Ext.Ka47 were prepared on 27.5.1973 at 12.20 p.m. and a case was registered under sections 121,122, 342, 343, 148, 149, 395 and 383 of I.P.C. against the named P.A.C. personnel in the First Information Report and four hundred others.

Investigation of the case followed and during investigation complicity of remaining accused persons, namely (30) Moti Chandra, (31) Ram Jatan Chandra, (32) Ali Husain, (33) Ram Harsh Yadav, (34) Durga Prasad, (35) Ram Avadh, (36) Chandrama Yadav, (37) Shyam Sunder Singh, (38) Kailash Nath Upadhya, (39) Baij Nath Singh, (40) Ram Bechan Singh, (41) Subedar Singh, (42) Faqir Chandra, (43) Salahuddin Khan, (44) Man Raj Yadav, (45) Ram Dhari Rai, (46) Shiva Dhar Bajpai, (47) Surendra Narain Lal Khare, (48) Shiv Narain Singh, (49) Devendra Kumar, (50) Naresh Rawat, (51) Satish Chandra Mishra and (52) Ram Sajan, came into light and they were also made accused in the case. After completing the investigation the investigating officer submitted chargesheets against different set of accused persons on different dates.

After submission of the chargesheets, cases were committed to the Court of Sessions for trial on different dates, where charges were framed against the accused persons under sections 147, 148, 120B and 152 read with sections 149 and 332 read with sections 149, 353 and 384 read with sections 149 and 343 read with sections 149, 393, 394 and 395 read with section 149 I.P.C., 409, 504 and 506 read with sections 149 I.P.C., 6(b), 6(c) and 7(c) of the P.A.C. Act read with sections 149, 43(5) and 119(5) of DIR and 25 and 27 of the Indian Arms Act, to which they pleaded not guilty and claimed to be tried. However, they adduced no evidence in defence.

To bring home the charges against the appellantsaccused the prosecution examined as many as 18 witnesses, out of them PW1 Shri R.B. Singh Adjutant, PW2 Shri A.K. Srivastava, Company Commander, PW3 Shri Mahavir Singh, Quarter Master, PW4 Shri R.K. Giri, Subedar Major, PW6 Shri K.K. Srivastava, Company Commander, PW8 Shri R.K. Chaturvedi, Company Commander, PW11 Shri N.P. Mishra, Company Commander and PW18 Shri S.N. Gupta (complainant) are the witnesses of fact and rest are formal ones.

The Trial Court came to the conclusion that the prosecution has been successful in bringing home the charges under sections 147, 120B, 343, 353 and 365 read with sections 149 I.P.C., 6(b), 7(c) of P.A.C. Act read with section 149 I.P.C. and 43(5), 119(5) of the Defence of India Rule, 1971 against all the accused persons beyond any shadow''of doubt and convicted and sentenced them as mentioned above, but acquitted them under sections 332, 409, 394, 504, 506, 393 and 384 all read with sections 149 I.P.C., 395 I.P.C., under sections 25 and 27 of the Arms Act and section 6(c) of the PAC Act.

Feeling aggrieved by the aforesaid conviction and sentences, the accused persons preferred criminal appeals mentioned at serial numbers 1 to 7. The State has also filed Criminal Appeals No. 11 of 1985 and 11A of 1985 mentioned at Serial numbers 8 and 9 for enhancement of the sentences awarded to the accused persons.

The order of conviction and sentences has been assailed on the following grounds:

The judgment of the learned Court below is perverse and not based for any sound reasoning.

The learned Court below erred in law in convicting, and sentencing the appellants for the various offences mentioned above with the aid of section 149 I.P.C.

According to the learned subordinate Court no offence under any of sections aforesaid is made out against any of the accused tried by the said learned Court below.

The learned subordinate Trial Court has itself said in its findings that there was no occasion for the P.A.C. Jawans to have any agreement for having any common object as required under sections 149 and 147 of the Indian Penal Code when they had assembled on hearing the double calls.

The learned subordinate Court erred in law in believing the statements of the prosecution witnesses merely on the ground that there were high police officers and so their evidence could not be viewed with suspicion.

The learned Court below erred in law in convicting the accused persons under section 120B I.P.C. when there was not even an iota of evidence to the effect that the accused persons had any reasons for hatching any conspiracy or for committing any criminal act.

The learned Court below erred in law in convicting the appellants despite its clear finding that as many as four hundred persons had participated in the occurrences out of which only the accused persons were picked and chosen for being prosecuted for the alleged offences.

The learned subordinate Court having given a finding to the effect that the jawans were required to hand over the charge of arms etc. for the said charge being handed over to the army ought to have gone into lawfulness of the intentions of the superior officers the force and their acts beyond any provisions of law.

The learned Trial Court has committed a manifest error of law in having totally ignored the provisions of section 23 of the Indian Police Act, 1861 and having failed to hold that all the actions of the superior officers of the P.A.C. on the relevant occasion v/ere contrary and outside the ambit and scope of the various provisions of law having force of law as contained in the U.P. Police Regulations. The Guards and Escorts Rules and the Police Drill Manual which were taught to the constables and head constables during their training.

The learned subordinate Court of session has acted on imaginary surmises when it presumed that there was some order of the State Government for the arms and ammunitions of the battalion being taken over from the jawans and/or handed over to the army without there being any such order either in existence or placed on record to that effect, before him.

The learned Court below has ignored the circumstances and has failed to have gone into the plea of right of private defence or person and properties entrusted to them in accordance with the provisions of The Guards and Escorts Rules and the Police Drill Manual.

The learned Court below ought to have held that there was no independent evidence adduced by the prosecution and evidence of the highly interested P.A.C. and Police officers and Government servants was only adduced by such officers to save their own skins and the same was not worthy of credence.

The appellants are all innocent public servants and they have falsely been implicated and convicted illegally under the aforesaid charges.

The judgment and order of the learned Court below is liable to be set aside and the appellants are entitled to clean acquittal of all the charges levelled against them.

The State has filed criminal appeals for enhancement of the sentences on the ground of inadequacy of sentences and not against the acquittal from certain charges.

We have heard Shri Nagendra Mohan, Advocate for the appellants and Shri Manish Kumar Yadav, Additional Government Advocate for the State at a considerable length and perused the record including lower Court record carefully.

The date, time and place of the occurrence is fully established by the overwhelming oral as well as documentary evidence on record. According to FIR version (Ext. Ka7) it took place in the intervening night of 21/22.5.1973 at about 2:00 a.m. at Jahangirabad, District Barabanki, where XA PAC Battalion was deployed. On the basis of the said FIR, check report Ext. Ka46 was prepared and a case was registered vide G.D. entry No. 11 dated 27.5.1973 at P.S. Masauli, District Barabanki, which is Ext. Ka47 on record. A detailed written report was scribed by Sri Mahavir Prasad (P.W. 3) on the dictation of Sri S.N. Gupta, Commandant (P.W. 18), who appended his signatures in English below the written report.

As mentioned earlier PW1 Shri R.B. Singh Adjutant, PW2 Shri A.K. Srivastava, Company Commander, PW3 Shri Mahabir Singh, Quarter Master, PW4 Shri R.K. Giri, Subedar Major, PW6 Shri K.K. Srivastava, Company Commander, PW8 Shri R.K. Chaturvedi, Company Commander, PW11 Shri N.P. Mishra, Company Commander and PW18 Shri S.N. Gupta (complainant) are the witnesses of fact and rest are formal ones. PW18 Shri S.N. Gupta being the complainant unfolded the whole prosecution story as narrated herein above, which need not be reiterated again. He has fully supported the F.I.R. version. On perusal of evidence, we find that the testimony of P.W. 18 Sri S.N. Gupta is fully corroborated by the statements of abovementioned witnesses of fact, who are all unanimous on all material particulars. Most of them are Officers in P.A.C. Battalion and some of them are Police Officers like Deputy Superintendent of Police, SubInspector of police and driver. The District authorities like District Magistrate and Superintendent of Police also persuaded the P.A.C. personnel to obey the orders and to hand over the charge, but all in vain. They have no animus against the accused persons. They were crossexamined but nothing material could be elicited so as to disbelieve them or to create any doubt in the prosecution case. We have no reason to disbelieve them. Thus their testimonies are reliable and trustworthy. Therefore, the prosecution case as regards the named accused is fully proved by the cogent and reliable evidence on record.

Learned Counsel for the appellants has pointed out that the appellants were justified in not obeying the command of the Commandant to hand over charge by not surrendering the weapons in discharge of their duties as a public servant on the oral direction of the Commandant, which is objected by the learned A.G.A. We have given our anxious thought to the facts of the case. In this context, we find that the U.P. Pradeshik Armed Constabulary Act, 1948 was enacted to create a parallel force to help the police in the pattern of quasi military force in maintaining law and order. The organization was improved from time to time by the Government and accordingly the Provincial Armed Constabulary Manual was introduced to define the duties and obligations to improve the functioning of the force. The strength of Constabulary Battalion, its Head Quarter and the officers find place in the Provincial Armed Constabulary Manual (hereinafter referred to as P.A.C. Manual). In this context, it would be relevant to refer the duties of the Commandant which are as under: "2. The final authority on all matters within the battalion is vested in the Commandant. He is responsible for the proper administration of the battalion and for the well being of all ranks.

He will make all promotions in the unit and may consult the Assistant Commandants or the Adjutant, if necessary.

All enlistments, discharges and dismissal (as permissible under rules) will be done by him.

He will pass orders on all applications of officers of and above the rank of Head Constables. Assistant Commandants may be authorised by him to sanction leave to constables, Trade Ranks and Followers, for a period extending to one month. Applications for leaye exceeding one month will be decided by the Commandant himself.

He will hold Orderly Room on Tuesday and Fridays and on any other working day in special cases, at a time which he will announce to all concerned through the Adjutant.

We further find that the Battalion Commandant is the final authority on all matters within the Battalion, his authority cannot be questioned by his subordinates. Needless to mention that the Commandant was the appointing authority of the appellants. He exercised his powers in giving appointment to them under Article 309 of the Constitution of India. He was also under constitutional duty to punish his subordinates under Article 311 of the Constitution of India. Consequently, it was not possible for the appellants to unconstitutionally put a fetter on the powers of the Commandant by asking him to furnish the order of the State Government before surrendering the weapons, which were given to them under the orders of Battalion Commandant P.W.18. Thus, the Commandant was exercising his statutory duties. He was also responsible for proper administration of the Battalion. He issued direction in the interest of the Battalion. It was also for the well being of all the appellants that they ought to have surrendered the weapons to the Battalion Commandant. Thus, under no circumstance we find the contention of the learned Counsel for the appellants has any weight that the Commandant was not in a position to issue direction to the appellants to surrender or hand over the weapons. We further find that this is a case of disobedience of the orders of the Commandant. Needless to say the appellants were governed by the provisions of U.P. P.A.C. Act, 1948. This force has been created on the pattern of quasimilitary force. The appellants ought to have not created such an example that they were defying the law and order and were creating indiscipline. Under no circumstance any justification could have been furnished before us by the definition of the provisions of the law and the P.A.C. Manual.

Thus, we hold that the Battalion Commandant P.W.18 was acting under the statutory obligations and was discharging his duties rightfully by giving direction to surrender the weapons at the Battalion Head Quarter which were earlier distributed amongst the appellants for maintenance of law and order and to watch and ward of the magazines of the arms store. Rifles and ammunition were handed over to the appellants to discharge their duties and not for their personal use. It was also not possible for the appellants and their fellow Jawans to break the magazine and take away arms and use them as per their choice.

We are not impressed by the argument of Shri Nagendra Mohan, learned Counsel for the appellants that the appellants were justified in defying the orders or in questioning the authority of the commandant to issue the instruction. We have already observed that the commandant was discharging his duty as a public servant and the appellants were discharging their duties in negative character and they confined the commandant PW18. The Trial Court rightly arrived at a conclusion that there was nexus between causing hurt and confining the commandant. In discharge of his duties he was confined in a room in a most indisciplined manner.

Having regard to the law referred to above and on appreciation of evidence, we are in complete agreement with the Trial Court that the named appellants committed the crime for which they were charged.

In this back ground, we have to see as to which charge or charges are proved against whom in the light of the evidence on record. It is relevant to mention here that all the accused persons have been charged on most of the counts with the aid of sections 120B and 149 I.P.C. except the accused Pati Ram, who has been charged with those offences simpliciter. However, it has come in evidence that the officers made no report to the Commandant regarding specific offences against specific accused person, therefore, it is legally not possible to convict any of them for those offences simpliciter. Since accused Pati Ram has also been charged with other accused persons with the aid of sections 120B and 149 I.P.C., it is not safe to convict him for those offences simpliciter.

The Hon''ble Apex Court in Sheo Mahadeo v. State of Bihar, AIR 1970 SC 1492. in regard to section 149 I.P.C. held as under:

"Every member of unlawful assembly is liable for the acts of others if done in prosecution of common object.

The essence of section 149, I.P.C., is that an accused person whose case falls within the terms of this section cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly.

Section 149 creates a specific offence and deals with punishment of that offence. The emphasis is on common object. There is no question of common intention in section 149. Thus, every person who is engaged in prosecuting the same object, although he had no intention to commit the offence, will be guilty of an offence which fulfils or tends to fulfil the object which he is himself engaged in prosecuting in the circumstances mentioned in the section.

It has come in evidence that the Commandant declared the assembly of the P.A.C. personnel at the quarter guard as unlawful assembly and ordered them to disperse but his order was disobeyed. The P.A.C. personnel took the law in their own hands and made all the officers available in the campus detenues and confined them in the conference room by forcibly taking them there. Thereafter some of them broke the locks of the armoury and distributed the arms among the members of P.A.C. personnel who took positions at different places in the castle. All these facts and circumstances clearly establish that the assembly of P.A.C. personnel at the quarter guard at about 2.00 a.m. on 22.5.1973 was an unlawful assembly, the common object of which was to make a revolt and to commit certain offences, which is evident from the evidence on record. Consequently, every member of that unlawful assembly of the P.A.C. personnel was responsible for the offences committed by any member of that unlawful assembly in prosecution of the aforesaid common object of that assembly in the campus of the castle. Therefore, they are liable to be punished under section 147 I.P.C.

Regarding criminal conspiracy punishable under section 120B of I.P.C. Bombay High Court in Dr. Dattatraya v. State of Maharashtra, I. 1982 CrLJ 1025. observed as under: "The most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of the agreement, but the very agreement is an offence punishable under section 120B of the Penal Code. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means and not merely an intention to do such acts constitutes the very quintessence of the offence of conspiracy. So long as such a design rests in intention only, if is not indictable. The prosecution must further show that the agreement was entered into and that there was meeting of minds between two or more persons or as is described etymologically, conspiracy meansbreathing together and two people cannot breathe together unless they put their heads together. The gist of offence of conspiracy lies not in doing the act or effecting the purpose for which the conspiracy is formed, nor in attempting to do any of the act, nor in instigating others to do them, but in the forming of the scheme of agreement between the parties. It is well settled that an agreement can be proved either by direct evidence or by circumstantial evidence or by both."

From perusal of the evidence on record, it is clearly established that the appellants assembled before the quarter guard on 22.5.1973, were shouting slogans and were not ready to obey the orders of the Commandant and thereafter different persons of that assembly started doing different acts in prosecution of their common object. That being so, criminal conspiracy punishable under section 120B of I.P.C. is clearly borne out from the evidence on record.

According to the prosecution witnesses, some of the P.A.C. personnel broke the locks of the armoury just when the crowd of P.A.C. personnel assembled before the quarter guard. Since none of the P.A.C. personnel has been named in the F.I.R. as to who actually broke the lock of the armoury, it is very difficult to convict all the P.A.C. personnel gathered there for the offences under sections 393, 394 and 395 I.P.C. Thus from the prosecution evidence the charges under sections 332, 409, 504, 506 and 384 all read with section 149 of the I.P.C. and sections 25 and 27 of the Arms Act are not established against the accused persons beyond any reasonable doubt.

As regards the offences punishable under section 152, read with sections 149 and 353 read with section 149 of the I.P.C., the prosecution witnesses have deposed that the P.A.C. personnel assaulted and obstructed and also used criminal force against them while they were executing their duties as public servants, in pursuance of their common design and object. These facts are established beyond any shadow of doubt that the P.A.C. officers and two police officers, namely, Shyamji Srivastava and Sri B.B. Jatav, were assaulted and criminal force was used against them and they were also taken into confinement in the conference room. Therefore, the offences punishable under section 152, read with sections 149 and 353, read with section 149, of the I.P.C. are established at least against the appellants.

As discussed above, it is well proved from the prosecution evidence that about a dozen officers were abducted and taken to the conference room where they were made detenues till 9.00 a.m. of 25.5.1973 and thus, they remained confined there for more than three days and the act of their abduction and confinement was in prosecution of the common object of the unlawful assembly whereof the appellants were members and, therefore, the offences punishable under section 343 read with sections 149 and 365 read with section 149 of the I.P.C. are proved against all the appellants.

The appellants were further charged with the offences punishable under sections 6(b), 6(c) and 7(c) of the P.A.C. Act, section 6(b) provides that the use or attempt to use criminal force against or an assault on one''s superior officer whether on or off duty is an offence. Section 6(c) deals with abandonment of duty and section 7(c) deals with gross insubordination to one''s superior officer in execution of his office. As observed above, there is ample evidence of the officers including the Commandant, Sri S.N. Gupta that the P.A.C. personnel including the appellants used and attempted to use criminal force and also assaulted the superior officers including the Commandant, Adjutant, Company Commanders, Quarter Master and Subedar Major during the incident and they were also grossly insubordinate and insolvent to their'' superior officers in the execution of their office. Thus, the offences punishable under section 6(b) of the P.A.C. Act read with section 149 of the I.P.C. is fully established against the appellants. As regards the offence punishable under section 6(c) of the P.A.C. Act read with section 149, of the I.P.C., it is not established beyond shadow any of doubt. The fact that although their own officers asked the appellants to hand over charge of the quarter guard, to disperse the unlawful assembly, to go to their barracks, the P.A.C. personnel including the appellants blatantly refused to comply and used criminal force and assaulted to their superior officers and also made them captives in the conference room, constitutes an act of gross insubordination within the meaning of section 7(c) of the P.A.C. Act.

The appellants were also charged with the offences punishable under Rules 43(5) and 119 (5) of the D.I.R., 1971. Rule 43(1) (a) provides that doing of any prejudicial act is punishable under subrule (5) of that Rule. Prejudicial act is defined in Rule 6. The aforesaid acts of the appellants definitely come within the meaning of prejudicial act and fall within the purview of subrules (c) and (o) of Rule 6. As such the guilt of appellants under section 43(5) of the Defence of India Rules is established. Admittedly, the appellants were in the employment of the State Government and they disobeyed the lawful orders of the Commandant given to them in the course of such employment, as such the offence punishable under Rule 119 (5) of the Defence of India Rules is also established against the appellants.

Thus, we find that there is clinching evidence to connect the appellants named in, the F.I.R. with the crime and the Trial Court rightly held them guilty for the offences under which they have been convicted. On appreciation of evidence we are in complete agreement with the Trial Court and accordingly their appeals are devoid of merit against their conviction.

As regards the appellants who were not initially referred in the F.I.R., we have considered the pros and cons of the case. On the point of their complicity, it has vehemently been argued that there is no convincing evidence to connect these appellants (not referred in the F.I.R.) with the crime and the Trial Court ought not to have concluded that they were also equally guilty of the commission of the crime.

During the course of investigation, complicity of remaining appellants, namely, (30) Moti Chandra, (31) Ram Jatan Chandra, (32) Ali Husain, (33) Ram Harsh Yadav, (34) Durga Prasad, (35) Ram Avadh, (36) Chandrama Yadav, (37) Shyam Sunder Singh, (38) Kailash Nath Upadhya, (39) Baij Nath Singh, (40) Ram Bechan Singh, (41) Subedar Singh, (42) Faqir Chandra, (43) Salahuddin Khan, (44) Man Raj Yadav, (45) Ram Dhari Rai, (46) Shiva Dhar Bajpai, (47) Surendra Narain Lal Khare, (48) Shiv Narain Singh, (49) Devendia Kumar, (50) Naresh Rawat, (51) Satish Chandra Mishra, and (52) Ram Sajan, came into light. It has been urged on their behalf that their names were not mentioned in the F.I.R. which too was lodged after a lot of delay and due deliberations. Accordingly, the prosecution has to explain the circumstances under which their names came in light. It is further submitted that there is no plausible explanation as to why the complainant failed to mention the names of the aforesaid appellants in the F.I.R. It is also submitted that the informant who was Commandant of the Battalion knew these appellants earlier and he has not mentioned their names as accused persons initially. There is no explanation as to why he failed to discharge his duties by not mentioning the names of the aforesaid appellants. Consequently, it is fatal to the prosecution and there is strong circumstance in favour of these appellants that they were not involved in the incident. In this case the Investigating Officer was produced. He too has not mentioned the circumstances under which out of more than 400 P.A.C. Jawans only 23 were picked up. In this context, we find that the Hon''ble Apex Court in Jttwarsingh and others v. The State of Madhya Pradesh AIR 1981 SC 373 = 1981 (18) ACC 42 (Sum.). considered the aforesaid circumstances and gave benefit of doubt to those whose names were not mentioned in the F.I.R. Para 6 of the aforesaid ruling is relevant and is reproduced as under:

"In regard to the seven persons whose names were not mentioned in the First Information Report, P.W. 1 was unable to explain why she failed to mention their names in the report. She frankly stated that she cannot state the reason as to why their names were not mentioned. We think that these seven persons are entitled to the benefit of doubt and should be acquitted."

It is further pertinent to refer the view of the Hon''ble Apex Court in Ajit Singh Tahknr Singh v. State of Gujrat, AIR 1981 SC 733 = 1981 (18) ACC 27 (Sum.). wherein their Lordships took a view that known persons were not mentioned in the F.I.R. and subsequent complicity has to be viewed with suspicion.

The learned A.G.A. could not point out the circumstance or any event as to how out of more than 400 Jawans only

23 persons were involved in the incident and even after deliberations and meeting of the officers of the Battalion, their names were not referred in the F.I.R.

Thus, there is no convincing and plausible explanation from the side of the State as to why the names of these 23 persons were not mentioned in the F.I.R. We find that in the F.I.R. the names of only 29 persons were mentioned and the names of 23 persons came in light during the investigation. This is atleast a circumstance which has to be explained by the prosecution, but the prosecution has failed to discharge its duty and the learned Trial Court was not correct in arriving at a conclusion that these 23 appellants not named in the F.I.R. also, participated in the occurrence. We further find that the Hon''ble Apex Court in Wilayat Khan v. State of U.P. AIR 1953 SC 122. and further in Ajit Singh Tahknr v. State of Gujarat, AIR 1981 SC 733 = 1981 (18) ACC 27 (Sum.)2008(61)" observed that when names of the assailants were not mentioned in the F.I.R., then this omission is a strong circumstance in favour of the accused.

In this context, we find that the F.I.R. was lodged after about five days of the occurrence and it does not contain the names of 23 appellants, then it would be a reasonable inference that after the occurrence the names of the appellants should have been disclosed in the F.I.R. Consequently, we find that nonmention of these 23 names in the F.I.R. is an omission, which is fatal to the prosecution and without corroboration by any independent witness explaining the circumstances, the Trial Court ought not to have convicted them. Thus, to our mind, the prosecution version in the given circumstances cannot be accepted in toto about the participation of these appellants and there is a strong circumstance in favour of the accused that they might not have participated in the occurrence and after due deliberations their names were referred. The Investigating Officer has also not explained the circumstances under which their names came in light. We find that the duty of the Investigating Officer is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth. In this case, we find that the Investigating Officer has failed to bring out the real unvarnished truth. He has not recorded the statement of the complainant properly and could not pointedly ascertain from him as to why the names of these 23 persons were not initially mentioned in the F.I.R. Thus, the Investigating Officer has also not proceeded with the investigation in proper manner in collecting the evidence against these 23 persons. In these circumstances, their participation is highly doubtful and they are entitled to secure benefit of doubt and consequently their appeals deserve to be allowed on this count.

The State has preferred criminal appeals No. 11 and 11A of 1985 for enhancement of the sentences. We have specifically pointed out to the learned A.G.A. as to what are the circumstances under which the sentences should be enhanced. He failed to point out any circumstance before us. We find that the persons involved in the incident, which took place in the year 1973 have become sufficiently old. It has nowhere been referred that they have committed any other lapse except this that they themselves misdirected in trade union, which led to this problem. There is nothing on record to suggest that they created any hindrance outside the Battalion Head Quarter or caused any damage to the State or caused any serious injuries to any of his superiors. The mutinous action was created at the behest of trade union known as "Police Union". At the time of incident, it is not disputed that they were inexperienced youth, who misled themselves in the sweet slogans given by the union leaders. Consequently, there is no compelling circumstance to establish that the action taken by the appellants or their complicity in the crime was in any way against the society warranting exemplary punishment. There is no crime against the property, person or the State. We further find that the incident took place on 22.5.1973 and since then they are facing miseries, they are out of job and they have become very feeble and infirm persons.

Consequently, we are unable to agree with the contention of the learned A.G.A. that the State appeals should be allowed and the sentences should be enhanced. The offence under section 365 I.P.C. is of technical nature. The wrongful confinement was such that the Commandant of P.A.C. who is P.W.18 was all the time allowed to ease himself, to take food and to take rest. It was simply a confinement, but technically the offence under section 365 I.P.C. is made out against which the conviction was recorded by the Trial Court and the sentence so awarded cannot be said to be inadequate. Accordingly, looking to the case from all or any angle we decline to interfere with the findings of the Trial Court on the point of sentence and it would not be expedient in the interest of justice to enhance the sentences after a lapse of more than 34 years of the incident. Thus in the surrounding circumstances the State appeals on the point of enhancement of sentences are devoid of any merit and are hereby dismissed.

On the point of acquittal from certain charges, no appeal has been preferred, consequently it is not necessary to discuss the counts and charges on which the appellants have already been acquitted. The Trial Court has taken a seasoned view in the matter and has awarded appropriate sentences to the appellants, for which no interference is warranted.

In the result, the appellants, namely, (1) Moti Chandra, (2) Ram Jatan Chandra, (3) Ram Harsh Yadav, (4) Durga Prasad, (5) Ram Avadh, (6) Chandrama Yadav, (7) Shyam Sunder Singh, (8) Kailash Nath Upadhya, (9) Baij Nath Singh, (10) Ram Bechan Singh, (11) Subedar Singh, (12) Faqir Chandra, (13) Salahuddin Khan, (14) Man Raj Yadav, (15) Ram Dhari Rai, (16) Shiva Dhar Bajpai, (17) Surendra Narain Lal Khare, (18) Shiv Narain Singh, (19) Devendra Kumar, (20) Naresh Rawat, and (21) Satish Chandra Mishra are acquitted of the charges levelled against them by giving benefit of doubt. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.

The appellants namely, (22) Jawala Prasad Tiwari, (23) Hunar Dev Yadav, (24) Dewta Singh, (25) Siya Ram Singh, (26) Shiv Muni Kushwaha, (27) Uma Shanker Pandey, (28) Shyam Prakash Singh, (29) Abdus Salam, (30) Shiv Prasad Rai, (31) Ram Chandra Singh, (32) Badruddin, (33) Govind Singh, (34) Gulab Singh, (35) Ramdev Yadav, (36) Vijay Bahadur Pandey, (37) Shiv Harsh Pandey, (38) Pati Ram Yadav, (39) Shiv Kumar Pandey, (40) Nattha Ram, (41) Ram Chandra Singh Yadav, (42) Subedar Sharma, (43) Ishtiyaq Ahmad, (44) Sanjay Singh, (45) Mohd. Shamim, (46) Fateh Bahadur Singh, and (47) Roop Chandra are found guilty of the offences for which they have been convicted by the Trial Court. They are on bail. Learned Counsel for the appellants has informed this Court that there is no necessity for taking the appellants in custody for the reason that they were in custody for about two years. Accordingly, it is not necessary to take them into custody to serve out any remaining sentences. Their bail bonds are cancelled and sureties are discharged.

No other point is pressed.

Thus, all the appeals are disposed of accordingly.

Let a copy of this order along with Lower Court record be sent to the Court concerned within a week and the C.J.M. shall submit compliance report within six weeks.

Appeals Disposed Of.