ORDER V.G. Palshikar, J.
1. Being aggrieved by the impugned judgment and order dated 26-7-1994 passed in Sessions Case No. 31 of 1993 by the learned Sessions Judge, Nanded, convicting the appellant -- original accused No. 5 for offence punishable under Section 326 of the Indian Penal code and sentencing him to suffer rigorous imprisonment for three years and top fine of Rs. 1,000/- in default to suffer further rigorous imprisonment for three months, the appellant has preferred this appeal on the grounds mentioned in the memo of appeal as well as the arguments canvassed before me.
2. With the assistance of the learned Counsel for the appellant and the learned Additional Public Prosecutor for the State, I have re-appreciated the evidence. The prosecution story as disclosed by the re-appreciation of the evidence stated briefly is that in the night of 31st December, 1991 and 1st December, (Sic) 1992, around 1.30 am when the victim PW-7 Shaikh Maqsood who was sitting in front of hotel to have his late night dinner was encircled by the accused persons and the present appellant Mohan stabbed him. On the complaint of this incident lodged before the police, the accused were arrested, investigation was conducted and the prosecution was launched. In support of its case that the accused persons formed an unlawful assembly and the common object of that assembly was to cause hurt to PW-7 Shaikh Maqsood and PW-8 Ravindra Misal, the prosecution examined nine witnesses. The learned Trial Judge, on appreciation of this evidence, came to the conclusion of guilt of the accused No. 5 and proceeded to acquit all other accused persons. The learned Trial Judge convicted the appellant even after having found that there was no unlawful assembly formed, there was no common object of the unlawful assembly to cause hurt to the injured witnesses and the evidence was scanty and discrepant.
3. The learned Counsel appearing for the appellant submitted that the learned Trial Judge committed an error of law in partly accepting the testimony of PW-7 Shaikh Maqsood and other witnesses for coming to the conclusion of guilt of the appellant when the basic of the prosecution case was that there was an unlawful assembly and in pursuance of its common object that the accused stabbed the victim. The learned Advocate pointed out serious infirmities from the deposition of PW- 1 Shaikh Tanjeer and PW-7 Shaikh Maqsood who were alleged to have been injured in the assault caused by the accused persons. PW-1 Shaikh Tanjeer (Exhibit 23 page 67) has deposed the prosecution case only in 13 lines. He has stated that around 1.30 am on 1-1-1992 he was taking meals near petrol pump at Bhorkar when he heard the voice of beating and went to see there. He saw that the appellant Mohan was beating Maqsood. According to the witness, when he was holding Maqsood the accused assaulted him. He was stabbed in the back by one Govind Rake. He has no knowledge as to why Mohan was beaten. He has lodged the complaint on the basis of which the investigation was undertaken. The learned trial Judge while appreciating the evidence of this witness has refused to believe him insofar as the case of assault on his person was concerned. All the accused named by him except the appellant Mohan are acquitted. The submission of the learned Counsel for the appellant is that having chosen to reject the evidence of these witnesses insofar as everything else is concerned, accepting the same evidence only against the appellant was an error of law. For the same reason, according to the learned Counsel for the appellant, the deposition of PW-7 Shaikh Maqsood was liable to be rejected. This witness has narrated the entire episode in 16 lines. He says that he was assaulted by the accused while he was returning from Dhaba to go to another hotel. He states that he was stabbed by Mohan in the abdomen when he was held by Rakesh, Girish and Gokul. He also deposed that Girish gave a blow with knife to PW-1 Tanjeer. Then according to him, he fell unconscious. He was taken to the hospital and he was in the hospital for 24 days. This witness, whose evidence is accepted by the learned trial Judge, has not given the time of assault. He has been substantially cross-examined by the learned Counsel for the accused and has given certain admissions in his cross-examination. A statement of this witness was recorded under Section 32 of the Evidence Act taking into consideration the fact that he was seriously heard. This statement was used as a previous statement of the witnesses since he had not died and it was not a dying declaration. This previous statement is recorded before the Special Magistrate and in this statement the witness has stated that around 12 in the midnight when he was returning to his house after witnessing the second show of some movie the accused accosted him and called him referring to his caste in a derogatory manner and stabbed him. What was the time of stabbing is not stated in the examination in-chief. What was the reason for stabbing is not given in the examination-in-chief, whereas, the statement recorded immediately after the incident attributes an intention and a cause for the appellant to stab him. If the statement under Section 32 of the Evidence Act is perused it will have to be accepted as suggested by the learned Advocate that there are material omissions and several improvements in the testimony of this witness. This aspect assumes more importance in view of the findings recorded by the learned Trial Judge in para 22 of his judgment at page 126.
4. In conclusion I hold that the accused had not formed unlawful assembly with any common object. There was no object with the accused to cause injury to any person. They had gone to enjoy 31st day of the year. There is no motive behind commission of the offence. Even Section 4 IPC should not be applied to convict any other accused than Mohan. There is scanty evidence that some accused caught hold Maqsood and Mohan stabbed him. There is no consistency in such evidence. I have observed that the statement of Ravi is not recorded by the Investigating Officer Under Section 161 Cr. PC. The other injured Tanjeer and Maqsood are not stating that accused Girish caused injury to Ravi. His own testimony in this respect that accused Girish stabbed him, should not be accepted. Some contradictions are in the evidence of PW-4 Babukhan and PW-6 Habibkhan of which benefit is being given to accused Rakhe for stabbing to Tanjeer. PW-4 and 6 are not stating in specific terms that accused Rakhe stabbed Tanjeer. PW-4 and 6 are not stating in specific terms that accused Rakhe stabbed Tanjeer. As there is no evidence against other accused than Mohan, Rakhe and Girish are entitled for acquittal."
These are the findings of the learned trial Judge in relation to formation of unlawful assembly and existence of common object/ intention to cause injury. The learned trial Judge has specifically found that the accused had no intention to cause injury to any person.
5. The learned Judge has chosen to give these findings in view of the fact the evidence on record was scanty, there was no consistency in the evidence of several witnesses and therefore, the evidence was considered grossly inadequate for coming to the conclusion of guilt of any of the accused persons.
6. In my opinion, the learned Trial Judge erred in convicting the appellant-accused No. 5 alone for offence punishable under Section 326 of the Indian Penal Code, having chosen to reject these very witnesses in relation to all other accused, to accept it only on the basis that there is an injury corresponding to the statement of PW-7 Shaikh Tanjeer ignoring the deposition of Dr. Balaji (PW-5) to the effect that the injuries could have been caused by weapon other than one seized as deposed to by PW-2 Shaikh Mahboob. The learned trial Judge has even rejected this seizure as not proper. There is, therefore, nothing on record to show as to which instrument was used for causing this injury. What was the nature of the injury caused by the appellant, what was the nature of the assault is absent from the deposition of PW-7 Shaikh Tanjeer. In such circumstances, having recorded the findings as noted in para 22 of his judgment the learned trial Judge erred in convicting the appellant original accused No. 5 alone. The impugned judgment of conviction and sentence is, therefore, unsustainable in law. The appellant deserves to be acquitted.
7. In the result, the appeal is allowed. The impugned judgment and order is quashed. The appellant is acquitted of all the charges with which he was tried and convicted. The bail bond of the appellant stands cancelled.