K. JAYACHANDRA REDDY, J.

A rioting of grave nature took place in Village Sakhni within the limits of Police Station Jahangirabad in District Bulandshahr at about 3.30 p.m. on 1-2-1989 in the course of which 11 people died and some others were injured including a police constable who was on bandobast duty. In respect of this occurrence 21 accused were tried for offences punishable under Sections 148, 302/149, 307/149 and 332/149 IPC and Section 25 of the Arms Act. The trial court acquitted A-9 Asgar, A-19 Munna Baboo, A-20 Jarrar and A-21 Israr and convicted the remaining accused. Out of them six were sentenced to death and the rest to imprisonment for life and also for shorter terms of imprisonment for the other offences. The convicted accused preferred appeals to the High Court and the trial Judge also made a reference for confirmation of death sentence. The State also filed two appeals one being against the acquittal of the four accused and the other appeal was for enhancement of sentence of imprisonment for life of the 11 accused to death sentence. The High Court acquitted A-3 Vilayat Hussain and A-18 Ali and confirmed the death sentence of A-1 Shamshul Kanwar but reduced the sentence of death in respect of other five accused to one of imprisonment for life. With this modification all the appeals filed by the accused as well as the State were disposed of by a common judgment. In this Court, as against the said judgment, A-1 Shamshul Kanwar has filed Criminal Appeal No. 887 of 1994. A-10 Rais has filed Criminal Appeal No. 888 of 1994 and A-2 Rashidul Zafar and other convicted accused have preferred Criminal Appeals Nos. 889-891 of 1994. Criminal Appeals Nos. 270-275 are filed by the State again for enhancement of the sentence of imprisonment of life to death and also against acquittal of six accused. Since these appeals arise out of a common judgment of the High Court, the same can be disposed of together by us

2. Village Sakhni was faction-ridden. A-1 Shamshul Kanwar was, at the relevant time, the Pradhan of the village and he led one faction and the other faction was led by PW 4 Mohd. Hussain and others. In the year 1981 one Mirza Badar Belonging to the party of A-01 was murdered. In that case 12 persons including PWs. 1, 2, and 4 were tried in a long-drawn trial and were convicted. They remained in jail during the trial and also after conviction except Kallu Beg alias Kallua who was granted bail on some compassionate ground. They filed an appeal in the High Court and also sought bail. In the first instance the bail was refused and later they were granted bail. When they were out of jail they were threatened by A-1 and members of his family. They were not allowed to enter the boundaries of the village. Therefore PW 4 and others left the village and began to live at Delhi. PW 4s mother-in-law, an old lady, along with her husband went to Delhi to the residence of PW 4, 10 or 12 days prior to the present occurrence. She was suffering from some mental trouble and also severe asthma. She died on the intervening night of 31-1-1989 and 1-2-1989 at about 9.30 p.m. Before her death she expressed her last wish that her body during the janaza (funeral) should be buried in her family graveyard in the very Village Sakhni. In accordance with her wish PW 4, his father, PW 1, PW 2 and others about eight persons along with womenfolk carried the dead body in a truck and started to Village Sakhni at about 6 a.m. on 1-2-1989. They reached Village Dariyapur on the way at about 8 a.m. PW 4 reached the residence of his fried namely Pradhan of Village Dariyapur and took the help of four persons who also followed the party armed with their licensed guns and the party reached Bulandshahr where PW 4 and his father met the Labour Minister who was camping there and requested him to provide police assistance as they were apprehending danger to their lives at the hands of A-1 and others. The Minister addressed a letter to the SHO, Jahangirabad Police Station. They left Bulandshahr at about 10 a.m. with the truck and reached Jahangirabad Police Station at about 11 a.m. and met the SHO and handed over the letter of the Minister along with an application seeking police held. The SHO sent as escort comprising of an ASI, PW 20 and two armed constables. All of them left Jahangirabad which is about 4 kms away and reached Village Sakhni at about 11.30 a.m. and stopped the truck outside the house of the deceased only lady. The dead body was taken inside and the janaza (funeral) was prepared according to the rites and from the village they went to the graveyard. The 10 deceased persons namely Munnawar Hussain s/o Kallu Beg, Kallu Beg s/o Waqar Ali, Mohd. Ali s/o Avej Ali, Ashgar s/o Bulaki Hussain, Munnawar Hussain s/o Haji Mohd., Azad Ali s/o Barakat Ali, Imdad Hussain s/o Farkat Hussain, Shabir Hussain s/o Haji Mohd., Shaukat Ali s/o Kale Hussain and Farkat Ali s/o Mohd. Hussain were also among them and they participated in the funeral. PW 20, ASI who escorted them having noticed that there was tension in the village, by way of abundant caution, went to Shamshul Kanwar, Pradhan (A-1) and had a talk with him. It appears that A-1 told him that his brother was killed by the other party and that he cannot do anything. PW 20, however, asked him to understand the situation and returned to the place of funeral. He felt that the tension has become more serious and that the police force with him was not sufficient and he asked one of the persons gathered there to inform the police station on telephone from Village Alipur to send more force at the graveyard. The people who had come from Delhi and Dariyapur and some people of the village along with the police force were there. The dead body was buried according to the customs and when the people were pouring the last earth, A-1 came there with 20 to 22 men armed with rifles, guns, farsas, knives, ballams and chhuris etc. and blocked the area. It is alleged that A-1 said that he would give them a lesson for entering the village to bury the dead body. Thereupon his younger brother Rashidul Zafar alias Chhota, A-2 exhorted that they have plenty of arms and nobody could go safe. Seeing the seriousness of the situation, ASI, PW 20 asked PW 4 again to send one man immediately to Village Alipur to phone to the Police Station for additional force. In the meantime the additional police party was seen coming from the side of Jahangirabad. Just then A-1 and A-2 fired with their rifles towards the gathering near the graveyard and their followers also fired. With the firing of A-1 and A-2 two persons, Shabir Hussain, deceased 1 and his younger brother Munnawar Hussain, deceased 2, fell down, Meanwhile people ran helter-skelter for saving their lives but the accused went on firing indiscriminately as a result of which deceased 3 of deceased 8 received injuries and fell down. Some of the accused, however, again assaulted deceased Shaukat Ali and Mohd. Ali with the ballams and farsas. PW 3 also was assaulted by the accused Nisar s/o Saklain, Bhura and Jarrar with ballams and farsas. Thereupon Asi, PW 20 challenged the accused who started firing at the police who after giving a warning fired 4 or 5 rounds and one of the persons Razi in the accused party received an injury and fell down on the road. He was, however, carried by his associates. The police party managed to surround four of the accused namely Nisar s/o Saklain, Nisar alias Baddu s/o Mohd. Hussain, Balloo and Masita alias Ranjha and took them into custody along with their respective bloodstained weapons. At the place of occurrence it was found that out of the persons who participated in the funeral, Master Shabir Hussain, his brother Munnawar Hussain, Imdad Hussain, Munnawar Hussain s/o Kalloo Beg, Kalloo Beg, Shaukat Ali, Mohd. Ali, Farkat Ali and Ashgar Abid (9 persons) had already died. Azad Ali, Mohd. Taqi and Firdaus Ali were in injured condition and one police constable also was found with an injury. The village people and the relations of the injured carried them from the place of occurrence for treatment. Out of them Azad Ali, deceased 10, died later in he hospital. It is also alleged that four persons who were brought from Dariyapur were confined by the accused near the Sheesham tree and all their guns also were taken away. Razi, on of the persons of the accused party died later. PW 4, however, scribed the earliest report, went to the Police Station accompanied by six persons at about 5.30 p.m. and submitted the report. The case was registered and the investigation commenced. Inspector, PW 8, reached the scene of occurrence at about 7 a.m. and took the four accused into custody. PW 8 seized the weapons that were recovered and also the empty cartridges at the scene of occurrence and prepared the necessary panchnamas and sent all the dead bodies for post-mortem

3. The doctors, PWs 9, 10, 11 and 13 conducted the post-mortem on the dead bodies and they found firearm injuries on many of the deceased persons and also incised injuries on some of them. The accused were arrested on various dates and some weapons were recovered. After completion of the investigation the charge-sheet was laid. The prosecution in support of its case examined 32 witnesses and PWs 1 to 4 and 20 mainly figured as eyewitnesses. Out of them PWs 1 and 3 are injured witnesses. PW 6, the doctor, examined PW 1 on 6-2-1989 and found one firearm injury on the right leg. On being X-rayed a radio opaque shadow was also found indicating that he received injury from a firearm. PW 6 also examined PW 3 Mohd. Taqi and he found three wounds and injuries 2 and 3 were such which could have been caused by a firearm and X-ray also confirmed the same

4. All the accused, when examined under Section 313 CrPC, denied the incident and pleaded ignorance. They also stated that they were not aware about the death of the old lady or abut the burial, In general they stated that they were implicated because of enmity apart from individually giving the particulars of hostility between them and the prosecution party. The trial court accepted the evidence of the eyewitnesses along with the evidence of PW 20. The trial court, however, acquitted A-9 on the ground that he was aged about 82 years and that he had a cataract in the right eye and as seen in the court, he was very old and in a tottered condition and that a doubt arose about his being a member of the unlawful assembly and participating in the occurrence and accordingly he was given benefit of doubt. The trial court acquitted A-19, A-20 and A-21 on the ground that while the witnesses alleged that they were armed with spears and used them, the doctors did not find any injury which could have been caused by a spear on any of the injured persons and therefore their presence at the scene of occurrence was doubtful. The trial court sentenced A-1 and A-2, who opened the fire, to death and A-11, A-15, A-16 and A-17 who where arrested on the spot holding that A-1 and A-2 initiated the attack by firing their rifles which hit deceased 1 and 2 and that other four accused persons who were arrested on the spot were armed with deadly weapons and inflicted injuries on Shabir Hussain, Shaukat Ali and Mohd. Ali, the deceased persons and thus took an active part and therefore they deserve the extreme penalty. The trial court convicted the remaining 11 accused also under Sections 3-2/149 and for other offences but awarded imprisonment for life. The High Court acquitted A-3 on the ground that use of rifle by him was doubtful. The High Court also acquitted A-18 on the ground that the overt act namely that he inflicted injuries with the knife on the deceased Farakat Hussain, Attributed to him becomes doubtful since there is no corresponding injury which could have been caused by such a weapon. The High Court, however, reduced the death sentence of A-2 holding that he being a younger brother followed the orders of A-1, his elder brother and at his instigation he used his rifle once and therefore his case stands on a different footing. The death sentence awarded to A-11, A-15, A-16 and A-17 who were arrested on the spot was also reduced to imprisonment for life by the High Court holding that their case stands on the same footing as that of other accused who also gave farsa blows to the deceased Shabir Hussain but sentenced to imprisonment for life only and therefore a distinction cannot be made between these four and the others. Regarding the case of A-1, Shamshul Kanwar, the High Court took the view that he was in a commanding position and he could have stopped the entire massacre and that he behaved with least reasonableness and therefore the death sentence has to be maintained

5. Shri Rajendra Singh, learned Senior Counsel appearing for A-1 submitted that all the eyewitnesses are interested and they have not come forward with the real version and that there was only a fight between two parties and as to how it originated the prosecution is silent and that no independent witness has been examined. Learned counsel mainly relied on the general diary entry Ex. Ka-124 made by PW 20 and pointed out that the version mentioned therein is somewhat different and that none of the particulars spoken to by PW 20 now are mentioned therein and therefore the present version is a result of consultations and fabrication and it is highly doubtful whether A-1 and other accused were present at the scene of occurrence and the assailants, whoever they may be, must have acted in their self-defence, Shri U. R. Lalit, learned Senior Counsel appearing for A-2, A-14, A-15 and A-16 submitted that PWs 1 to 4 figured as accused in the other case and were convicted and therefore they were all out to implicate all their enemies and that there was delay in examining and recording the statements of PWs 1 and 3 and that PW 4s evidence bristles with discrepancies and improvements in materials particulars and that in a case like this an identification parade was absolutely necessary but was not held. He also pleaded that the case of A-2 is in no way different from that of A-2 who was acquitted. Shri Raju Ramachandran, learned counsel appearing for the remaining appellants while adopting the arguments of the other two learned counsel, however, further contended that it cannot be definitely said that all the accused were present at the scene of occurrence only as members of the unlawful assembly and since the occurrence has taken place in the village itself it is quite possible that they might have been there only as onlookers or bystanders and that mere attribution of overt acts to them by the interested witnesses, in such a situation, cannot be a safe test to fix their presence as members of the unlawful assembly. Shri R. C. Verma, learned counsel appearing for the State Contended that this is a fit case where the appeals by the State should be allowed having regard to the magnitude of the occurrence during which as many as 10 persons belonging to the prosecution party were killed in a brutal manner and that acquittal of these accused should be set aside and death sentence should be awarded to all of them

6. Since it is a case of death sentence, we have heard all the learned counsel at great length and we have been taken through the entire records. Before we proceed to consider their submissions, we would like to briefly refer to the evidence of the eyewitnesses which has been believed by both the courts below and consider whether the so-called infirmities in their evidence pointed out by the leaned counsel are of any significance and whether there are good grounds for interference as sought by the State

7. PW 4 is the main eyewitness in the case and he gave the FIR. In his chief-examination he has given the details of the previous incident including the earlier murder case and about the party factions in the village. He has also given all the details about their movements on the day of occurrence and how they picked up four armed people at Dariyapur and how they enlisted the police help and further details regarding the funeral. He mentioned the presence of PW 1, PW 2, PW 3 and 10 deceased persons being present at the time of funeral. Then coming to the actual occurrence he deposed that after burial of the dead body they were about to leave for their residences at about 3.30 p.m. and just then he saw from the said of the temple A-1 and A-2 armed with rifles and several other accused armed with guns and some of them also being armed with knives and farsas near the temple. The accused came towards the west of the road and A-1 exhorted saying that they will teach them a lesson for entering the village for burying the dead body. Thereupon his brother A-2 exhorted the other accused to ensure that none of their enemies in the prosecution party should get away alive. PW 20, ASI was pacifying and as he sensed danger he asked PW 4 to send some man to ring up the police station asking for more help. PW 4 thereupon sent one Sajjad. In the meantime the additional police help consisting of two police parties having six constables and 2 SIs were seen coming from near the temple. Having seen the police parties, A-1 and A-2 again exhorted other accused saying that they have enough of arms and they need not be afraid of anybody. PW 4 further deposed that A-1 and A-2 in the first instance fired simultaneously at the prosecution party and they hit Shabir Hussain, deceased 1 and his younger brother Munnawar Hussain, deceased 2, who having received the injuries fell down. At the same time Vilayat Hussain, A-3 and Rais, A-10 fired at them and that the accused also fired at the police party and there was a stampede. PW 4 also stated that the accused went on firing indiscriminately causing death of many people and also causing injuries to PWs 1 and 3 as well as to one constable Kanshi Ram. He stated that deceased 3 to 8 fell down near the huts. Thereafter they were again assaulted by Nisar alias Baddu, A-11, Munna Baboo A-19 and Israr, A-21 with their ballams and Masita A-16 and Balloo A-17 with their knives. Nisar A-15 and Bhoora A-13 caused injuries to PW 3 with chhuri and farsa and Jarrar A-20 with his ballam. Thereupon ASI, PW 20 challenged the accused and when the accused tried to fire against the police, the police in turn fired about 4 or 5 rounds and Razi, one of the members of the accused party, received injury and fell down near the road. Thereupon the accused ran helter-skelter and accused Razi also was carried away by his associates. The police party however surrounded four accused i.e. A-11, A-15, A-16 and A-17 with their weapons which were bloodstained. Thereafter PW 4 and one Gulbeg, PW 2 arrived at the place of occurrence and found all the deceased lying and PWs 1 and 3 also with injuries. They were carried from the place of occurrence for treatment. Azad Ali, deceased 10 who was also injured was carried to the hospital but died later. PW 4 scribed the FIR, Ex. Ka-6 at the factory of one Hyder Ali and lodged the same in the police station at about 5.30 p.m. He was cross-examined at length and certain contradictions and omission have been elicited. Both the courts below have considered them and have rightly held that they do not affect the veracity of his evidence. PWs 1 and 3 also have given more or less the same version. It may not be necessary for the purpose of these appeals to discuss their evidence in detail once again in view of the concurring findings

8. The main submission of the learned counsel is that they are interested witnesses inasmuch as admittedly they were accused in the earlier case and there would be tendency on their part to implicate many accused and that their evidence regarding the genesis of the occurrence is artificial and at any rate they have not come out with the whole truth. It is in this context that the learned counsel strenuously contended that for quite some time the accused did not do anything and according to the prosecution it is only after the burial, the occurrence took place and there is no reason whatsoever for the accused to indulge in indiscriminate firing at that stage and that having regard to the tension prevailing and because of some provocative incident that took place there must have been a melee and cross-firing between the police and the four armed men from Dariyapur and some persons belonging to the accused party. Learned counsel also contended that the FIR is a result of consultations and fabrication and in the absence of the evidence of any independent witness it would be highly unsafe to place reliance on these partisan witnesses and there would have been many innocent bystander and onlookers including some of the accused and therefore it cannot be held that a specific case is made out against these accused being members of the unlawful assembly with the common object of committing the murder. It is in this context that the learned counsel referred to the evidence of PW 20, ASI in the light of the entry in the general diary Ex. Ka-124 and contended that there was no mention of any of the details of occurrence in that exhibit and that shows that the interested witnesses have later come forward with this fabricated and exaggerated version implicating all the accused. It is appropriate at this stage to consider the evidence of PW 20 and the submissions made by the learned counsel regarding the evidentiary value or otherwise of Ex. Ka-124

9. PW 20 deposed that on 1-2-11989 he was working as ASI, Jahangirabad Police Station and at about 11 a.m. PW 4 came with two more persons and met SI Satibir Singh, PW 8 and asked for police force for the cremation of his mother-in-law. On their application PW 8 directed PW 8 (sic) to take two constables for the cremation of the dead body in Village Sakhni. PW 20 took constables and proceeded on his own motor-bike. He took his service revolver and cartridges and the two constables took rifles and cartridges. On the way he noticed the truck which was carrying the dead body along with 16 to 17 persons. They reached the house of the dead lady and stayed outside the house. The persons and women who came in the truck went inside the house. PW 20 noticed that there was tension in the village and learnt that it was due to enmity between the Pradhan of the village Shamshul Kanwar, A-1 and those who came with the dead body. PW 20 posted his constables giving some instructions and went to the house of A-1 and had a talk with him. PW 20 deposed that A-1 told him that those persons had murdered his brother and now they have come with the police and that he could not do anything. Thereupon PW 20 asked A-1 to understand the situation and came back to the house of the dead lady. After reaching the place he felt that the tension was serious and that the force was not sufficient. He asked one of the persons gathered there to telephone to the police station from Village Jalipur to send more force. Meanwhile the jazaza was ready and it was taken to the ancestral graveyard of the village at about 2.30 p.m. by the people who had come from Delhi and some of the local people. PW 20 and other constables as well as the four armed men from Village Dariyapur were following the janaza, some of them in the front and some of them in the back. The janaza was brought to the Idgah of the graveyard and some prayers were offered. Then the body was buried according to the customs and those parson began pouring the last earth. Just at that time A-1 came there with 20 to 22 men armed with guns, rifles, ballams and chhuris and they blocked the area from the side of the temple. A-1 said that they would teach those persons a lesson for entering the village to bury the dead body. His younger brother A-2 said that they have plenty of arms and they were also influential. PW 20 tried to counsel A-1. He also asked PW 4 to send immediately someone to Jalipur to telephone the police station to send additional force. In the meantime obviously because of the earlier telephone call additional force was seen coming. Just at that juncture, according to PW 20, A-1 fired with the rifles towards the gathering at the graveyard. Two persons received bullet injuires and fell down. There was a huge and cry and there was indiscriminate firing and many people received injuries and fell down. Some of the accused persons came and inflicted injuries with the sharp-edged weapons on some of the fallen men. PW 20 further deposed that the accused persons also stopped the police party. PW 20 gave a warning to the accused persons and proceeded towards them and the accused persons started firing towards them. PW 20 in self-defence fired with his service revolver and also asked the two constables to fire two rounds. During that firing one of the members of the accused party Razi sustained injury and fell down. The other accused persons began to retreat. PW 20 and other constables, however, managed to capture four accused with their bloodstained weapons. PW 20 identified those persons in the court and also added that all the rest of the accused also were present in the court and he has known them since before he saw them on the day of occurrence. PW 20 proceeded to state that during the occurrence some of the constables also were injured. He arrested the four accuse who were caught and later PW 8 came with force at about 7 a.m. to whom he handed over the four accused persons and the recovered arms. He stayed for the night in the village itself. In the chief-examination various panchnamas regarding the seizures and other particulars of scene of occurrence were marked. Then PW 20 was cross-examined. Then Ex. Ka-124 is marked and further cross-examination proceeded on the basis of its contents. Entry in the general diary marked as Ex. Ka-124 was written by PW 20 on 2-2-1989 and it mainly contains the details of the proceedings namely leaving the police station, going to the scene of occurrence and the general outline of the occurrence and the steps taken by him and his police party. PW 20 was cross-examined with reference to the contents and it has been pointed out by the defence counsel that several details which PW 20 was giving in the court, have not been noted. PW 20, however, asserted that it was not necessary to write everything in the general diary and what was written in the general diary was only a short narration of what he and his men did. Further cross-examination proceeded and it was pointed out that no names of the accused persons were mentioned for the names of the witnesses nor other details were mentioned. On the assumption that GD entry Ex. Ka-124 should contain more details the main contention raised is that in the absence of the same PW 20s presence itself should be doubted or in the alternative the present version given by the eyewitnesses who are interested should be rejected. The question is whether this a assumption that the police officer should give all the details of the occurrence in the GD entry like Ex. Ka-124 is correct. This warrants an examination of scope of Section 172 CrPC and also refer to some of the decisions on this aspect

10. Section 172 CrPC reads as under

"172. Dairy of proceedings in investigation. - (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed the investigation, the place or places visited by him, and a statement of the circumstances ascertained thorough his investigation

(2) Any criminal court may send for the police diaries of a case under inquiry or trial in such court, and may use such diaries not as evidence in the case, but to aid it in such inquiry or trial

(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court; but, if they are used by the police officer who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply." *

This section firstly lays down that every police officer making an investigation should maintain a diary of his investigation. It is well-known that each State has is own police regulations or otherwise known as police standing orders and some of them provide as to the manner in which such diaries are to be maintained. These diaries are called case diaries or special diaries. The section itself indicates as to the nature of the entries that have to be made and what is intended to be recorded is what the police officer did, the places where he went and the places which he visited etc. and in general it should contain a statement of the circumstances ascertained through his investigation. Sub-section (2) is to the effect that a criminal court may send for the diaries and may us them not as evidence but only to aid in such inquiry or trial. The aid which the court can receive from the entries in such a diary usually is confined to utilising the information given therein as foundation for question to be put to the witnesses particular the police witnesses and the court may, if necessary, in its discretion use the entries to contradict the police officer who made them. Coming to their use by the accused, sub-section (3) clearly lays down that neither the accused for his agents shall be entitled to call for such diaries nor he or they may be entitled to see them merely because they are referred to by courts. But in case the police officer uses the entries to refresh his memory or if the court uses them for the purpose of contradicting such police officer then provisions of Section 161 or Section 145, as the case may be, of the Evidence Act would apply. Section 145 of the Evidence Act provides for cross-examination of a witness as to the previous statements made by him in writing or reduced into writing and if it is intended to contradict him by the writing, his attention must be called to those parts of its which are to be used for the purpose of contradiction. Section 161 deals with the adverse partys rights as to the production, inspection and cross-examination when a document is used to refresh the memory of the witness. It can therefore be seen that the right of accused to cross-examine the police officer with reference to the entries in the general diary is very much limited in extent and even that limited scope arises only when the court uses the entries to contradict the police officer or when the police officer uses it for refreshing his memory and that again is subject to the limitations of Sections 145 and 161 of the Evidence Act and for that limited purpose only the accused in the discretion of the court may be permitted to peruse the particular entry and in case if the court does not use such entries for the purpose of contradicting the policy officer or if the police officer does not use the same for refreshing his memory, then the question of accused getting any right to use he entries seven to that limited extent does not arise. The accused person is not entitled to required a police officer to refresh his memory during his examination in court by referring to the diary. At the most the accused can on a reasonable basis seek the court to look into the diary and do the needful within the limits of Section 172 CrPC. However, the court is not bound to compel the police witness to look at the diary in order to refresh his memory nor the accused is entitled to insist that he should do so. If there is such a refusal what inference should be drawn depends on the facts and circumstances of each case. Section 172 does not deal with any recording of statements made by witnesses and what is intended to be recorded is what the police officer did namely the places were he went, the people he visited and what he saw etc. It is Section 161 CrPC which provides for recording of such statements. Assuming that there is failure to keep a diary as required by Section 172 CrPC, the same cannot have the effect of making the evidence of such police officer inadmissible and what inference should be drawn in such a situation depends upon the facts of each case. It is well-settled that the entries of the police diary are neither substantive nor corroborating evidence and they cannot be used by or against any other witness than the police officer and can only be used to the limited extent indicated above. The above-stated principles are reiterated in many decisions rendered by the courts

11. As early as 1897 the Full Court of the Allahabad High Court in Queen-Empress v. Menu examined the scope of Section 172 CrPC and the meaning of the police diaries and Edge, C.J. who spoke for the Court held thus

"Section 172 of the Code of Criminal Procedure provides for the two events, on the happening of either of which the accused or his agent is entitled to see the special diary : and it enacts that, except on the happening of one of those events,

"neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court." *

In may opinion the plain meaning of Section 172 is that the special diary, no matter what it may contain, is absolutely privileged, unless sit is used to enable the police officer who made it to refresh his memory or is used for the purpose of contradicting him." (emphasis supplied)

Coming to the entries that are to be made and the aid which the courts can have, it was further observed

"A properly kept special diary would afford such information, and such information would enable the Magistrate or Judge to determine whether persons referred to in the special diary, but not sent up as witnesses by the police, should be summoned to give evidence in the interests of the prosecution or the accused. It must be always remembered that it is the duty of the Magistrate or of the Judge before whom a criminal case, is, to ascertain if possible on which side the truth is, and to decide accordingly." *

12. This view of the Full Bench has been approved by the Privy Council in Dal Singh v. King-Emperor. The Privy Council while disapproving the use to which the entire were put to, held thus

"In other words, they treated what was thus entered, as evidence which could be used act all events for the purpose of discrediting these witnesses. In their Lordships opinion, this was plainly wrong. It was inconsistent with the provisions of Section 172 of the Criminal Code. To use the diary for the purpose the did was to contravene the rule laid down in Queen-Empress v. Mannu where a full court pointed out the such a diary may be used to assist the Court which tries the case by suggesting means of further concluding points which need clearing up, and which are material for the purpose of doing justice between the Crown and the accused, but not as containing entries which can be themselves be taken to be evidence of any date, fact or statement contained in the diary. The police officer who made the entry may be confronted with it but not any other witness." *

13. In Pulukuri Kottaya v. Emperor it was laid down that breach of Section 172 does not amount to any illegality and the same does not vitiate the trial. In Niranjan Singh v. State of U.P. it was urged that there was a failure to comply with para 109 of Chapter 11 of U.P. Police Regulation which lays down that when the investigation is closed for the day a copy of the case diary should be sent to the superior police officers and such failure amounted to infraction of rule of law. A Bench of three Judges of this Court considered this aspect and following the ratio in Pulukuri Kottaya case held as under

"The Criminal Procedure Code in laying down the omissions or irregularities which either vitiate the proceedings or not does not anywhere specifically say that a mistake committed by a police officer during the course of the investigation can be said ton be an illegality or irregularity. Investigation is certainly not an inquiry or trial before the court and the fact that there is no specific provision either way in Chapter XLV with respect to omissions or mistake committed during the course of investigation except with regard to the holding of an inquest is, in our opinion, a sufficient indication that the legislature did not contemplate any irregularity in investigation as of sufficient importance to vitiate or otherwise form any infirmity in the inquiry or trial." *

14. In Habeeb Mohd. v. State of Hyderabad, it was held thus

"Section 172 provides that any criminal court may send for the police diaries of a case under inquiry or trial in such court and may use such diaries, not as evidence in the case but to aid it in such inquiry or trial. It seems to us that the learned Judge was in error in making use of the police diaries at all in his judgment and in seeking confirmation of his a opinion on the question of appreciation of evidence from statements contained in these diaries. The only proper use he could make of these diaries was the one allowed by Section 172, Criminal Procedure Code, i.e., during the trial he could get assistance from them by suggesting means of further elucidating points which needed clearing up and which might be material for the purpose of doing justice between the State and the accused." *

(emphasis in original)

15. In Khatri (IV) v. State of Bihar it was held thus : (SCC p. 501, para 5)

"The criminal court holding an inquiry or trial of a case is therefor empowered by sub-section (2) of Section 172 to send for the police diary of the case and the criminal court can use such diary, not as evidence in the case, but to aid it in such inquiry or trial. But, by reason of sub-section (3) of Section 172, merely because the case diary is referred to by the criminal court, neither the accused nor his agents are entitled to call for such diary nor are they entitled to see it. If however the case diary is used by the police officer who has made it to refresh his memory or if the criminal court uses it for the purpose of contradicting such police officer in the inquiry or trial, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act would apply and the accused would be entitled to see the particular entry in the case diary which has been referred to for either of these purpose and so much of the diary as in the opinion of the court is necessary to a full understanding of the particular entry so used. It will thus be seen that the bar against production and use of case diary enacted in Section 172 is intended to operate only in an inquiry or trial for an offence and even this bar is a limited bar, because in an inquiry or trial, the bar does not operate if the case diary is sued by the police officer for refreshing his memory or the criminal court uses it for the purpose of contradicting such police officer." *

(emphasis supplied)

16. In Mukund Lal v. Union of India it was observed that the court is empowered to call for relevant case diary if there is any inconsistency or contradiction arising in the content of the case diary and the court can use the entries for the purpose of contradicting the police officer as provided in sub-section (3) of Section 172 CrPC. Likewise in State of Bihar v. P. P. Sharma it was observed thus : (SCC p. 256, para 41)

"The only duty cast on the investigation is to maintain a diary of his investigation, which is known as Case Diary under Section 172 of the Code. The entries in the case diary are not evidence nor can they be used by the accused or the court unless the case comes under Section 172(3) of the code. The court is entitled for perusal to enable it to find out if the investigation has been conducted on the right lines so that appropriate directions, if need be, be given and may laos provide materials showing the necessity to summon witnesses not mentioned in the list supplied by the prosecution or to bring on record other relevant material which in the opinion of the court will help it to arrive at a proper decision in terms of Section 172(3) of the Code. The primary duty of the police, thus is to collect and sift the evidence of the commission of the offence to find whether the accused committed the offence or has reason to believe to have committed the offence and the evidence available is sufficient to prove the offence and to submit his report to the competent Magistrate to take cognizance of the offence." *

17. Now coming to the rights of the accused regarding the use of diaries, this Court in Malkiat Singh v. State of Punjab reiterating the view taken in Mannu case and in Khatri case regarding the scope of Section 172(3) also observed thus : (SCC pp. 352-53, paras 10 and 11)

"The evidence on record clearly shows that the defence has freely used the entire in the case diary as evidence and marked some portions of the diary for contradictions or omissions in the prosecution case. This is clearly in negation of and in the teeth of Section 172(3) of the Code

It is manifest from its bare reading without subjecting to detailed and critical analysis that he case diary is only a record of day-to-day investigation of the investigating officer to ascertain the statement of circumstances ascertained through the investigation. Under sub-section (2) the court is entitled at the trial or enquiry to use the diary not as evidence in the case, but as aid to it in the inquiry or trial. Neither the accused, nor his agent, by operation of sub-section (3), shall be entitled to call for the diary, nor shall he be entitled to use it as evidence merely because the court referred to it. Only right given thereunder is that if the police officer who make the entries in the diary uses it to refresh his memory or if the court uses it for the purpose of contradicting such witness, by operation of Section 161 of the code and Section 145 of the Evidence Act, it shall be used for the purpose of contradicting the witness, i.e. Investigation Officer or to explain it in re-examination by the prosecution, with permission of the court. It is, therefore, clear that unless the investigating officer or the court uses it either to refresh the memory or contradicting the investigating officer as previous statement under Section 161 that too after drawing his attention thereto as is enjoined under Section 145 of the Evidence Act, he entire cannot be used by the accused as evidence. Neither PW 5 nor PW 6, nor the court used the case diary. Therefore, the free use thereof for contradicting the prosecution evidence is obviously illegal and it is inadmissible in evidence. Thereby the defence cannot place reliance thereon. But even if we were to consider the same as admissible that part of the evidence does not impinge upon the prosecution evidence. (emphasis supplied)

18. With regard to the nature of the entries to be made in the diary as required under Section 172 CrPC and the limited permissible use by the court or by the accused indicated therein have been the subject-matter of decisions of a number of High Court over the years. It may not be necessary to refer to them. However, we have noticed that there is vagueness as to the nature of the dairy contemplated under this section. In some States the diary referred to in Section 172 CrPC is known asspecial diary or case diary and in some other State like Andhra Pradesh, J & K and Kerala there is a provision in the Police Acts that a "general diary" is to be maintained in the police station thereby indicating it to be different from the ask dairy. In some States there are police standing orders to the effect that the dairy contemplated under Section 172 CrPC can be of two parts; the first one relating to the steps taken during the course of investigation by the police officer with particular reference to time at which the police received the information and the further steps taken during the investigation like visiting the places etc. and the second part contains statement of the circumstances ascertained during the investigation which obviously relate to the statements recorded by the officer in terms of Section 161 CrPC and other relevant materials gathered during the investigation. The copies of the second part which mainly contains the statements of the witnesses as a mater of course are supplied to the accused persons

19. For instance Madras Police Standing Order No. 589 provides that the record of an investigation shall be made in the false diary (Form No. 82) which is the diary prescribed in Section 172 of the Criminal Procedure Code. It will bear the number of the first information report. Order No. 590 further lands down that the record of investigation in a case diary should contain only daily details of the time at which the information reached the Investigation Officer, the time at which he began and closed his investigation, the place of places visited by him and a statement of the circumstances ascertained through his investigation and that the police will truly record the statement of persons examined by them in the court of the investigation. Para 2 further adds that case diaries should be prepared in two distinct parts, viz. (1) investigation part and (2) statement of witnesses recorded under Section 162 CrPC and that the second part alone should be handed over to the Magistrates clerk for making out copies to be furnished to the accused. Likewise in A. P. Police Standing Orders. Order No. 599 refers to Section 172 CrPC and lays down that the said provision requires that every police officer making an investigation should enter day by day his proceedings in the investigation in the diary, setting forth time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. Para 3 of the said order says that the case diary proper should contain these details and should be written in Form No. 71. Para 2 further lady sown that statement of witnesses examined by the police during the investigation should be recorded in Form No. 72 and should be attached to the case diary for the day. Police Standing Order No. 600 is to the effect that the copies of the statements of witnesses proposed to be examined during an injury or trial should be made available to the accused before the inquiry or trial commences and that the case diary proper may be put to use to the extent as provided under Section 172 CrPC Police Standing Order No. 601 contains the detailed instructions regarding writing of the case diary

20. Therefore it is clear that the diary referred to in Section 172 and which the court may call for and which can be used to the limited extent mentioned therein obviously refers to the first part and to the copies of which the accused is not entitled to and the entire of which can be used to the limited extent by the court as well as by the accused as contained in Section 172 CrPC. If by virtue of such police standing orders, the second part also forms, compendiously, part of the diary as a whole and if that also is before the court, the use of the entire in such second part which contains the statements of the witnesses recorded, would be of different nature. In some States for instance Uttar Pradesh there are regulations regarding the maintenance of general and case diaries. Section 161 CrPC provides for examination of witnesses by police. It further lays down that the police officer during investigation may examine the witnesses and may reduce into writing any statement made to him in the course of such examination and if he does so he shall "make a spear and true record" of the statement of each such person. Section 162 lays down that no such statement made by any person to a police officer shall if reduced to writing to singed "nor shall any such statement or any record thereof whether in a police diary or otherwise" be used for any purpose at any inquiry or trial save as provided under that section. The words "police diary or otherwise" used in this section have perhaps been the basis for dividing the diary into two parts. Section 167, an important provisions, deals with the procedure for production of the accused not completed within 24 hours and provides for production of the accused before a magistrate for seeking remand. This provision also lays down that the officer-in-charge of a police station or the police officer making the investigation shall forthwith transmit to the nearest judicial magistrate a copy of the entries in the diary hereinafter prescribed relating to the case" and a the same time forward the accused to such magistrate. Likewise sub-section (2-a) of Section 167 which provides for production of the accused before an executive magistrate lays down that the copy of the entry in the diary hereinafter prescribed relating to the case shall be transmitted while forwarding the accused. The object underlying is that the magistrate before remanding the accused to custody would satisfy himself that there is a prima facie case for doing so after a perusal of the copies of the entries "in the diary". We are referring to this aspect only to point out that some vagueness or confusion is there in respect of the meaning of the word diary used in Section 172 and other sections of CrPC and we suggested that a legislative change is necessary providing for framing of appropriate and uniform regulations regarding the maintenance of the diaries by the police for the purpose contemplated by Section 172 CrPC vis-a-vis the other sections referred to above

21. We are constrained to got into this aspect in an elaborate manner as even today we are coming across a number of cases when there has been a patent misuse of the case diaries to be maintained as per Section 172 CrPC. The Full Court in Mannu case observed, as long back as 1897, as under

"It is within the experience of every Judge of this Court that much misconception exists in these Provinces as to the use which can be made by a court or by an accused person or his agents of the dairies which ar kept by police officers under Section 172 of the Code of Criminal Procedure, and which in these Provinces are known as special diaries. It is within our judicial knowledge that some Sessions Judges and some Magistrates have divided criminal cases by conviction or by acquittal of the accused on statements which are found in the special diary relating to the case." *

To the same effect are the observations by Privy Council in Dal Singh case. But as pointed out by this Court in Malkiat Singh case that the courts even in recent times are not keeping in view the true scope of Section 172 and the use to which the diaries should be put to

22. Now coming to the position in the present case on this aspect we do not find anything on the record to show as to how Ex. Ka-124 the entry in the general diary came on record. It is nowhere endorsed in the deposition of PW 20 that he used the same for refreshing his memory or the court used it for contradicting PW 20 with reference to the entries in the diary. It is just mentioned that Ex. Ka-124 is marked. Thereafter we find a lengthy cross-examination on the basis of the contents for Ex. Ka-124 which is impermissible for the abovesaid reasons. In any event PW 20 has rightly asserted that no further details need be mentioned in the entry in the general diary, Ex. Ka-124. It may be mentioned at this stage that PW 20 as police officer left the police station under the orders of his superior to give protection to the funeral party. Therefore he was on duty and in respect of the same he made the necessary entries it the general diary. Being a witness to the occurrence he was examined by the investigating officer, PW 8 under Section 161 CrPC. There is very little cross-examination of PW 20 with reference to the contents of his statement under Section 161. On the other hand, the whole cross-examination proceeded on the basis of Ex. Ka-124 by the learned defence counsel pointing out that the details given by him regarding the occurrence as an eyewitness are not there in Ex. Ka-124. As explained above this is not the scope of the use of the entries in the diary as provided under Section 172 CrPC. At this stage we have to point out that strictly speaking Ex. Ka-124 cannot be said to be an entry in case diary within the meaning of Section 172 CrPC nor is it a statement recorded under Section 161 CrPC. PW 20 as an officer on duty made those entries in the diary kept in the station which is also called general diary and is different from "case diary". However, having regard to the way this document has been used in the case we are constrained to go into the scope of Section 172 CrPC and the nature of the entire to be made in the respective diaries. For all these reasons we are unable to agree with the learned counsel that PW 20 was not an eyewitness and that he was also subscribing to the version given by the interested witnesses. The evidence of PW 20 amply corroborates the evidence of the other eyewitness whose presence at the scene of occurrence cannot be doubted

23. Regarding the genesis, the submission of the learned counsel for the appellants is that as per the entries in the general diary Ex. Ka-122 and Ex. Ka-1274 till 3.45 p.m. nothing happened; at the most there was tension and that because of some provocative acts on the part of the prosecution party the occurrence must have commenced and it is difficult to say as to who started firing first and taking the whole scenario into account it must be held that there was a fight between the two parties and there must have been cross-firing and therefore it cannot definitely be said that accused alone were the aggressors. We see no force in this submission. All the 10 persons who were killed admittedly belong to the prosecution party participating in the funeral and many of them were from Delhi. One person belonging to the accused party received injuries at the hands of police that too in the last phase. The evidence of PW 20 is clear on this aspect who deposed that when the accused party started attacking the police, they in turn fired and caused injures to Razi-accused and who was taken away by the other accused and who died later. In assessing as to who were the aggressors, several surrounding circumstances have to be taken into consideration. The prosecution party went to the village only for the cremation of the body of the old lady. They also took support of police and four other persons from Village Dariyapur. This no doubt might have created tension in the Village but as it emerges from the evidence and also from the fact that all the persons killed belonged to the prosecution party it is clear that the accused party were the aggressors and indulged in indiscriminate firing causing the death of so many people of the opposite party. There cannot be any doubt that they were the members of the unlawful assembly and such of those whose presence ad members of the unlawful assembly is established cannot but be held guilty. Both the courts on a detailed examination of the evidence of the eyewitnesses PWs 1 to 4 have concurrently held that the accused persons formed into an unlawful assembly with the common object of attacking and killing the members of the opposite party who were in the funeral procession

24. This takes us to the next question as to whether all the accused challaned and tried were members of the unlawful assembly. Right from the stage of FIR their names have been mentioned and in the evidence the eyewitnesses have particularly deposed that they were present at the scene of occurrence duly armed and specific overt acts also are attributed to at least six of them. In an occurrence of this magnitude where several persons have participated it would not be possible for the witnesses to specify the part played the each of them. It is clear from the facts and circumstances and from the evidence that such of those accused who came to the scene of occurrence armed with lethal weapons in a group and proceeded to participate in the attack, shared the common object of the unlawful assembly namely to attack and kill the members of the opposite party. Consequently they would be liable under Sections 302/149 IPC

25. Now coming to the case of the individual accused, the trial court as well as the High Court have scanned the evidence of the eyewitnesses in great detail along with the evidence of PW 20 and held that the prosecution has established that these accused were members of the unlawful assembly sharing the said common object. The trial court, however, by way of abundant caution acquitted A-9, A-19, A-20 and A-21 after scrutinising the evidence of the eyewitnesses who were interested in the light of the medical evidence and other circumstances and gave them benefit of doubt. Likewise the High Court acquitted A-3 and A-18. We have already referred to the reasons given by the courts below for acquitting these six accused and we do not see any ground to interfere in the appeal filed by the State against their acquittal

26. Now coming to the case of the convicted accused, the learned counsel submitted that in a case of large-scale rotting of this nature where even according to the prosecution a number of people gathered at the scene of occurrence, it is highly unsafe to convict any of the accused by the application of Section 149 IPC unless it is positively proved that each one of them shared the common object and accordingly participated in the occurrence

27. The scope of Section 149 has been explained in a number of cases by this Court. In Masalti v. State of U.P. it was observed as under

"What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that however, being aware of facts which render any assembly an unlawful assembly, internationally joins that assembly, or continue in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified in Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case to Baladin assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically beings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly." *

28. In Lalji v. State of U.P. it was observed thus : (SCC pp. 441-42 para 9)

"Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, the created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extended only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of the object. Everyone mist be taken to have intended the probable and natural results of the combination of the the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten victoriously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge." *

Therefore, as indicated above, to infer common object it is not necessary that teach one of them should have participated in the attack. However, the evidence of the eyewitnesses clearly establishes that each one of these convicted accused was member of the unlawful assembly whose common object was to commit murders. A-1 and A-2 are the real brothers of Mirza Badar, whose murder in fact was the root cause of the present incident. Ashgar and Nisar alias Baddu accused are their brothers-in-law. Ali, Razi the deceased accused, and his nephew Shore along with Shamshul Kanwar and others were PWs in the earlier case. The oth.