Shankarrao Bhimrao Sarnaik And ... vs State Of Maharashtra
2002 Latest Caselaw 1048 Bom

JUDGMENT

R.K. Batta, J.

1. All these appeals arise out of judgment dated 28-4-1997 in Sessions Trial No. 22 of 1995. Accordingly, all the appeals were heard together and it is proposed to dispose of the same by common judgment.

2. Criminal Appeal No. 151 of 1997 is filed by original accused Nos. 4 and 18. Criminal Appeal No. 353 of 1997 is filed by original accused No. 5 and Criminal Appeal No. 301 of 1997 is filed by the State against acquittal. In all 36 accused were tried in the Sessions case and except for appellant Nos. 4, 5 and 18 all of them were acquitted.

3. The prosecution case, in brief, is that on 10-11-1994 there was quarrel between Nisha (P.W. 5) wife of deceased Gautam Khadse; Laxmibai (accused No. 7); Mathurabai (accused No. 6) who is mother-in-law of Laxmibai on account of washing of clothes at the river. On the next day, that is to say, on 11-11-1994 at about 12.00/ 01.00 p.m. Laxmibai (accused No. 7) and Mathurabai (accused No. 6) came to the house of Tulsabai (P.W. 3) in connection with the incident which had taken place on river. Tulsabai (P.W. 3) called P.W. 5 Nisha. Thereafter there was exchange of words between P.W. 5 Nisha and accused No. 7 Laxmibai and they started pulling hair of each other. In the meantime, deceased Gautam came there. On account of commotion, the door of the courtyard was closed. However, number of accused entered the courtyard by removing the tins. Appellant-Raosaheb is said to be having an axe with him and some of other co-accused had sticks with them. Accused No. 5/appellant-Raosaheb gave axe blow on the head of deceased Gautam. Some of the other co-accused are also reported to have assaulted him with stick. P.W. 4 Nivrutti, husband of Tulsabai (P.W. 3) is also said to have been assaulted by sticks. On account of assault, deceased Gautam died on the spot. The First Information Report was promptly lodged by Tulsabai (P.W. 3) with the police. After completing the investigation, charge-sheet was filed. Prosecution in all had examined 12 witnesses in support of the charges. The learned Additional Sessions Judge, Washim vide judgment dated 28-4-1997 found accused No. 5 Raosaheb guilty under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life as also fine of Rs. 5000/-, in default to suffer rigorous imprisonment for one year. Accused No. 4 Shankar and accused No. 18 Ganesh were convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life in addition to fine of Rs. 5000/- in default to suffer further rigorous imprisonment for one year each. All the said three accused were convicted for offence under Section 307 read with Section 34 of the Indian Penal Code and have been sentenced to suffer rigorous imprisonment for five years as also fine of Rs. 500/-, in default, rigorous imprisonment for two months each. They were also convicted for an offence punishable under Section 452 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years as also to pay fine of Rs. 500/-, in default to suffer further rigorous imprisonment for one month each. The substantive sentences were directed to run concurrently. All the other accused have been acquitted of all charges.

4. Learned Advocate Mr. M.B. Naidu argued Criminal Appeal No. 353 of 1997 on behalf of the appellant/accused No. 5 Raosaheb; Advocate Mr. Srivastava argued Criminal Appeal No. 151 of 1997 on behalf of accused No. 4/appellant Shankar and accused No. 18/appellant Ganesh and Mr. A. S. Fulzele, Additional Public Prosecutor argued on behalf of the State in all these three appeals.

5. Mr. M.B. Naidu, learned Advocate appearing on behalf of appellant Raosaheb has argued before us that there are inter se discrepancies between the testimony of P.W. 4 Nivrutti; P.W. 5 Nisha and P.W. 3 Tulsabai. P.W. 5 Nisha had reportedly run away from the spot and as such, she is not an eye-witness of the incident in question on account of which her deposition cannot be accepted. It is next submitted by him that the witnesses speak of only one blow on the head by the appellant-Raosaheb and the prosecution has not explained as to how other injuries were caused on the deceased; that the prosecution has not explained injuries found on the person of appellant-Raosaheb as also his mother and that in terms of judgment of the Apex Court in Hallu v. State of M. P., , it has to be presumed that the assault by axe was with sharp side, but according to medical evidence, the injury on the head is caused by blunt side. In this connection, it is also pointed out that there is no blood on the blunt side of the axe as per report of the Chemical Analyser though blood was found on the sharp side of the axe. The next submission made by learned Advocate for appellant-Raosaheb is that genesis of the crime has been changed by the prosecution witnesses inasmuch as theory of removing tins has been introduced during the course of assault whereas the said theory did not exist at the stage of filing of the First Information Report; that admittedly four ladies including accused No. 7 and her mother-in-law accused No. 6 were present inside the compound and as such, they could have very well opened the door of the courtyard on account of which there was no necessity for removing the tin-sheets and for the accused to come from that side. It is also urged that the prosecution case is that there was heavy constant stone-throwing and if it is so, everyone inside the courtyard should have received injury, but hardly 2-3 stones were found in the courtyard which falsifies the stone pelting theory. It was next contended that there are contradictions in the dragging theory and in this respect, reliance is placed on Dharam Singh v. State of Punjab, . The next submission made by learned Advocate is that items which were attached and sent to Chemical Analyser have not been sealed and after placing reliance on Ashraf Hussain Shah v. State of Maharashtra, 1996 Cri LJ 3147, it is urged that no reliance can be placed on the report of the Chemical Analyser. In this connection, reliance is also placed on Valsala v. State of Kerala, . Alternatively, it is urged that it is a case of sudden quarrel and case of single blow on account of which the offence, at the most, may fall under Section 304, Part II of the Indian Penal Code. In this connection, reliance has been placed on Mahesh v. State of M. P., and Eknath Malu Ratate v. State of Maharashtra, 1998 (1) Mah LJ 411.

6. Learned Advocate for appellants Shankarro and Ganesh has also urged that genesis of the crime has been changed; that there is evidence on record that P.W. 5 Nisha had run away from the spot on account of which no credence can be attached to her testimony. It is further urged that the evidence of P.W. 3 Tulsabai that the assault was on the head cannot be believed since she has herself admitted that she knows the difference between forehead and head and the corresponding injury found by the Medical Officer does not correspond to the deposition of P.W. 3 Tulsabai. He has also urged that theory of heavy pelting of stones cannot be accepted. He has also urged the issue of sealing raised by learned Advocate for accused No. 5/appellant-Raosaheb on account of which the Chemical Analyser's report cannot be relied upon. It is also pointed out by him that axe is not identified by the doctor; that inquest report shows three injuries on the person of deceased whereas according to the doctor, there are four injuries; the injuries on the person of the deceased could be caused due to pelting of stone and that prosecution has failed to prove the role played by the accused No. 4/appellant-Shankarrao and accused No. 18/appellant-Ganesh. He, therefore, urged before us that the appellant be acquitted of the charges.

7. Learned APP, on the other hand, urged before us that the trial Court in an elaborate judgment has considered all arguments which have been advanced by learned Advocate for the appellants and after considering the same as also evidence on record, has recorded findings on the basis of appellants have been found guilty and as such, no interference is called for in the matter. According to him, the trial Court has appreciated the evidence in the correct perspective on the basis of principles of appreciation of evidence applicable in that behalf and as such, conclusions which are based upon evidence on record on the basis of which findings are recorded, do not call for any interference. Insofar as appeal against acquittal is concerned, according to learned APP, there is evidence on record regarding involvement of the accused who have been acquitted and taking into consideration the evidence available on record, the order of acquittal passed by the trial Court is required to be set aside.

8. We have examined the evidence on record in the light of rival contentions. The incident has taken place in the background of the earlier incident which took place on 10-11-1994 between P.W. 5 Nisha wife of deceased Gautam; Laxmibai (original accused No. 7) and her mother-in-law Mathurabai (original accused No. 6) on account of washing of clothes at the river. On the next day at about 12.00 noon/01.00 p.m., accused Nos. 6 and 7 met Tulsabai (P.W. 3) and Tulsabai called Nisha (P.W. 5) after which there was exchange of words between them and they also started pulling hair of each other. At this stage, deceased Gautam reached there. In the meantime, there were shouts and the accused came towards her house upon which she closed door of her compound on which tin-sheets on the back side of the house were removed and eight of the co-accused entered in the courtyard. The said eight persons included accused No. 4/appellant-Shankarrao; accused No. 18/appellant-Ganesh and accused No. 5/appellant-Raosaheb besides five other co-accused. P.W. 3 Tulsabai further stated that appellant-Raosaheb dragged Gautam from the house and brought him in the courtyard after which Raosaheb inflicted axe blow on the head of Gautam on the left side. She has further stated that co-accused Vilas (since acquitted) gave stick blow to Gautam as also co-accused Satish (since acquitted) had given a stick blow to him. He also stated that co-accused Ramrao (since acquitted) had also given stick blow to Gautam. The others were having sticks with them. The later part of the incident relates to assault on her husband Nivrutti with which we shall deal separately at a later stage and at present, we shall confine to the evidence as against appellant-Raosaheb. According to P.W. 3 Tulsabai, due to axe blow on head, Gautam sustained injury and blood was oozing out. She has identified axe (Article "1"). In cross-examination, she has stated that there is facility to close compound wall door from inside as also from outside with the help of latch. She has further stated that after hearing shouts, she had closed the compound door from inside and at that time, Laxmibai, accused No. 7; Mathurabai, accused No. 6; Vithabai, accused No. 24 and Sunderabai, accused No. 25 were inside the compound. She deposed that as the shouts were coming nearer to their house, they had closed the kitchen door from inside. However, kitchen door was opened and deceased Gautam was dragged by appellant Raosaheb. She also speaks of huge pelting of stones. She has stated that she understands the difference between head and forehead and Gautam sustained injury on head and not on forehead. Much capital has been tried to be made out on this aspect with which we shall deal a little later. This witness was confronted with the First Information Report wherein the theory of removal of tin-sheets and entry through the same does not figure in the F.I.R. She was also confronted with her statement that Vilas, Satish and Ramrao had assaulted deceased by stick.

9. At this stage, it is pertinent to take into consideration the evidence of P.W. 1 Keshao, who was pancha to the scene of offence prepared on the date of incident itself. He has stated that there were tin-sheets on the roof; the tin-sheets were found removed from the western side of the house; the stones, sticks and one axe were found near the dead body and there were bloodstains on the stones, sticks and axe. There is absolutely no challenge to this part of the evidence of pancha witness. No doubt, it is true that this witness is brother of Tulsabai and brother-in-law Nivrutti (P.W. 4), but on that count alone, his testimony which could not be otherwise shaken during cross-examination, cannot be disbelieved. The spot which is the mute testimony to what had happened, shows that the tin-sheets were removed from the western side of the house. This evidence is complete answer to the argument advanced by learned Advocate for the appellant-Raosaheb that the genesis of the crime has been suppressed. It is no doubt true that these facts do not figure in the First Information Report, but it is now well settled that the F.I.R. is not an encyclopedia though it should contain essential details. The argument that four of the ladies on the side of the accused/appellants could have opened latch of the courtyard compound, is neither here nor there since, in fact, there is no evidence that the compound wall door was opened by them. Tulsabai (P.W. 3) has categorically stated that she had latched the door of the courtyard compound from inside and, therefore, the appellants along with others had effected entry into the courtyard by removing the tin-sheets.

10. We shall now refer to the evidence of P.W. 4 Nivrutti who has stated that Laxmibai (accused No. 7) and Mathurabai, accused No. 6 had come to his house and they were telling his wife Tulsabai that there was quarrel between them and Nisha on the river. Accordingly, his wife called Nisha after which there was exchange of words between Nisha, Tulsabai and Laxmibai. They caught hair of each other. At this stage, deceased Gautam reached on the spot. Thereafter Vithabai and Sunderabai came to the spot and in the meantime, accused started shouting. Therefore, his wife Tulsabai closed the compound door; eight of the co-accused entered the courtyard after removing tin-sheets of the roof and the said persons included appellants-Shankarrao, Raosaheb and Ganesh besides others. He has also stated that appellant-Raosaheb was having axe while the others had stick; Raosaheb dragged Gautam in the compound after which he gave axe blow on the head of Gautam and other seven accused had given stick blows to Gautam. At this stage, he intervened and he was assaulted and we shall deal with assault on him at a later stage. He also identified axe (Article "1"). He also speaks of stone pelting. He was questioned regarding Nisha (P.W. 5) having seen the incident and was confronted with the police statement wherein he had stated that Nisha (P.W. 5) had escaped and run away.

11. The evidence of Tulsabai (P.W. 3) and Nivrutti (P.W. 4) in respect of the incident, fully corroborates each other and both of them have categorically stated that appellant-Raosaheb gave an axe blow on the head of the deceased Gautam. Both of them have stated that the accused had entered the compound after removing the tin-sheets, deceased Gautam was dragged and appellant/accused No. 5 Raosaheb assaulted on the head of deceased Gautam with axe.

12. We shall now refer to the medical evidence in relation to the injuries found on the person of deceased, P.W. 11 Dr. Santosh Sarda conducted post-mortem on the dead body of deceased Gautam and found the following injuries on his person :--

"1). Lacerated wound on forehead (scalp) left side, on frontal region is nearabout 2" x 1" x 1/2" in length and breadth respectively, oblique, caused by hard and blunt object.

2) Bluish contusion on back side, scapula oval and vertical contusion 9" x 1", just be-low medial border of scapula, on left side, and lateral to vertebral column, caused by hard and blunt object.

3) Incised wound 1" x 1/2" length, breadth and deep, 1" below the left knee vertical, caused by sharp and hard object.

4) Contusion on scalp, left parietal region 2" above the left ear, nearabout 3" x 3", over shape, caused by hard and blunt object.

2. Injuries 1 and 4 mentioned in column No. 17 were head injuries. On internal examination, it is noticed that there was fracture of parietal bone on left side, 3" lateral to mid-line and 3" above ear margin, 1/2". Subdural haematoma was present. Menin-ges are turns.

3. Injuries were ante-mortem. Stomach contains 500 ccs of food and water mucous. Deceased may have died after 2 to 3 hours after taking last meal. The cause of death was death occurred due to shock due to head injury. Viscera was preserved and handed over to P.C. The external injuries mentioned in column No. 17 correspond to internal injuries mentioned in column No. 19 (only four). Injuries 1 and 2 are sufficient to cause death in the ordinary course of nature. Injuries 1 and 3 are possible due to axe shown to me from its buttock side. Injury No. 3 is possible due to the axe shown to me from is edged side (blade side).

4. Axe was sent to me for my opinion along with the police letter, Ex. 215. I have given my opinion on 12-11-94 under my signature. It is at Ex. 215-A. I have applied the seal on the axe and handed over to police."

In cross-examination, he has stated that while giving his opinion, he found that axe in open condition and after examination of the axe, he had sealed it with his official seal and this fact is confirmed by the Chemical Analyser's Report. He also stated in cross-examination that injury No. 4 and fracture to parietal bone is sufficient for instant death.

12A. the post-mortem report shows one injury on the forehead (scalp) and the other injury is on the left side parietal region besides two other injuries, viz. one on the back left side scapula oval and the other incised wound on the left knee. According to Dr. Sarda (P.W. 11), injuries Nos. 1 and 2 are sufficient to cause death in the ordinary course of nature. He also stated that injury No. 4 and fracture to parietal bone is sufficient to instant death. Besides this, he has stated that injury Nos. 1 and 2 are possible due to axe from its blunt side and injury No. 3 is possible due to the axe from its sharp side. The axe was sent to P.W. 11 Dr. Sarda for opinion on 12-11-1994. The same was seized from the scene of offence on 11-11-1994 and after examination of axe, Dr. Sarda had sealed the said axe and this fact is also corroborated by C.A. report which shows that the axe was bearing the seal of "ISR Health, Government of India". On the blade side of the axe, blood-stains of "AB" group were found which was the blood group of the deceased since the full shirt and full pant of deceased was also found to be having blood of "AB" group. The blood group of appellant-Raosaheb is of "A" group and blood group of "AB" was found on the full-shirt and full-pant of appellant-Raosaheb. This testimony of P.W. 11 Dr. Sarda read with Chemical Analyser's Report connects the appellant-Raosaheb not only with the assault on the deceased Gautam, but also with the axe with which the assault was carried out. Both Tulsabai and Nivrutti (P.Ws. 3 and 4) have identified the said axe and it was never suggested to them that the axe is not the same or that axe has been replaced. The question of sealing assumes importance when it can be shown that there has been tampering. In the case under consideration, the axe was seized from the scene of offence and was sent to Dr. Sarda (P.W. 11) on the very next day who sealed the same and it is in the same sealed condition that it was received by the Chemical Analyser. Therefore, arguments of the learned Advocate for appellants in relation to sealing does not have much merit.

13. It is no doubt true that witnesses Tulsabai (P.W. 3) and Nivrutti (P.W. 4) speak of only one axe blow by the appellant Raosaheb. According to both of them, the axe blow was given on the head. As we have already pointed out that there are two injuries in the head region, viz. injury No. 1 and injury No. 4. According to P.W. 11 Dr. Sarda, both the injuries viz. injury No. 1 and in-jury No. 4 are sufficient to cause death in the ordinary course of nature. Thus, in any case, even if it is taken that only one blow was given by appellant-Raosaheb on the head of deceased, that one blow was sufficient in the ordinary course of nature to cause death. The weapon used is axe and the part of the body chosen is head. It is (no) doubt true that blood was found on the blade side which will go to show that even injury No. 3 was caused by axe as stated by Dr. Sarda (P.W. 11). In the circumstances, in the light of evidence of P.W. 3 Tulsabai and P.W. 4 Nivrutti read with the medical evidence, it follows that the injury on the head was caused by blunt side and in the facts and circumstances, there is no scope for presumption that the sharp side of the axe was used for causing the said injury. The statement of Tulsabai (P.W. 3) is that she knows the distinction between head and forehead, cannot be stretched to such an extent that her evidence should be disbelieved. The head and forehead are so close to each other that it is possible that even if the witness feels that the blow has been given on head, the injury is actually inflicted on the forehead.

14. At this stage, we shall also deal with the contention advanced by learned Advocate for the appellant that in the inquest panchanama, three injuries were seen, but the Medical Officer Dr. Sarda (P.W. 11) found four injuries on the person of the deceased. This aspect has been considered by the trial Court. One injury which was above left ear was possibly not noticed by the panchas who are otherwise lay witnesses. Medical Officer is a right person to find out the number of injuries found on the person of the deceased. Therefore, there is no merit in this submission advanced on behalf of accused/appellant.

15. The trial Court has relied upon the evidence of Tulsabai (P.W. 3) and Nivrutti (P.W. 4) for coming to the conclusion that the accused No. 5/appellant-Raosaheb is guilty of murder of Gautam. The trial Court had the benefit of observing the demeanour of the said witnesses. The trial Court, though initially also accepted the evidence of Nisha (P.W. 5), yet the trial Court has come to the conclusion that even if the evidence of Nisha is excluded, still the evidence of Tulsabai and Nivrutti is sufficient to bring home the guilt against the accused No. 5/appellant Raosaheb insofar as the murder of deceased Gautam is concerned. We also, find that the sum total of evidence on record suggests that Nisha (P.W. 5) had run away from the spot and had not seen the assault on Gautam and Nivrutti and as such much credence cannot be given to her testimony. Nevertheless exclusion of her evidence does not have any adverse effect on prosecution case.

16. Learned Advocate for accused No. 5/appellant-Raosaheb had urged before us that it is a case of single blow and sudden quarrel and that the offence would at the most fall under Section 304, Part II of the Indian Penal Code. We do not find that this is a case of sudden quarrel. The incident had taken place in the background of incident which had taken place on earlier day between P.W. 5 Nisha and accused No. 7 Laxmibai and her mother-in-law. This Laxmibai is wife of brother of accused No. 5 Raosaheb. Said appellant-Raosaheb came with an axe with him and he assaulted the deceased with the same on his head. Though the prosecution evidence speaks of only one blow, yet Medical Officer Dr. Sarda (P. W. 11) found four injuries on his person and all the aforesaid four injuries, according to him, could be caused by axe. In the circumstances, we do not consider that this is a case which would fall under Section 304, Part II of the Indian Penal Code. Learned Advocate for appellant-Raosaheb has also submitted that the injuries on the person of appellant-Raosaheb, Laxmibai and other accused have not been explained by the prosecution. In Takhaji Hiraji v. Thakore Kubersingh Chamanslng the Apex Court has laid down that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. The Apex Court-pointed out that before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the Court has to be satisfied of the existence of two conditions : (1) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of occurrence in question. Though the prosecution has placed the in-jury certificate of the accused on record, yet there is nothing on record to show that the injuries were caused in occurrence in question nor the defence ever suggested to any of the prosecution witnesses that the said injuries have been caused in the occurrence of the incidence. Besides this, the injuries are not serious in nature so as to affect the prosecution case.

17. In view of the above, we do not find sufficient justification to interfere with the findings of the trial Court holding accused No. 5 appellant-Raosaheb guilty for murder of Gautam, under Section 302 of the Indian Penal Code. Nevertheless, there is no evidence against him regarding his involvement in assault on Nivrutti regarding charge under Section 307 read with Section 34 of the Indian Penal Code. However, there is evidence that appellant-Raosaheb had entered the compound having made preparation for assault and carried with him axe and as such his conviction under Section 452 of the Indian Penal Code is confirmed.

18. We shall now come to the prosecution case as against accused No. 4/appellant Shankarrao and accused No. 18/appellant Ganesh insofar as their conviction for murder of Gautam with the help of Section 34 of the Indian Penal Code. PW-3 Tulsabai as also Niverutti (PW-4) speak of presence of appellants-Shankarrao and Ganesh. However, Tulsabai (PW-3) does not at all speak of any assault by accused No. 4/appellant Shankarrao and accused No. 18/appellant Ganesh on deceased Gautam. On the contrary, she has stated that co-accused Vilas, Satish and Ramrao had given stick blows. According to her, initially seven persons along with accused-Raosaheb had entered the compound by removing tin-sheets, In this view of the matter if co-accused Vilas, Ramrao and Satish who are alleged to have given stick blow to deceased Gautam have been acquitted, appellants-Shankarrao and Ganesh who had not assaulted Gautam could obviously not be convicted since their involvement was certainly lesser than the co-accused Vilas, Satish and Ramrao. Of course, the State has filed appeal in relation to the said accused, but the question will be, whether the evidence on record is sufficient to convict those who have been acquitted of the charges. Though Tulsabai (PW-3) speaks of assault by stick by co-accused Vilas, Satish and Ramrao, yet she does not give details as to on which part of the deceased-Gautam, they had assaulted with stick. According to Dr. Sarda (PW-11), the injuries Nos. 1 and 3 were possible by axe whereas injury No. 3 is possible from the blade side, injury No. 4 is possible from blunt side of the axe.

19. Nivrutti (PW-4) has stated that seven accused including accused No. 4/appellant Shankarrao and accused No. 18/Ganesh had given stick blows to Gautam, but except for this bare averment he does not give any details, whereas Tulsabai (PW-3) speaks of stick blow on Gautam only by three persons, viz. co-accused Vilas, Satish and Ramrao. Yet, this witness also says that all the seven accused persons had given stick blows to Gautam. Both of them do not give any details as to on which part of the body the blows were given. This type of omnibus evidence obviously cannot be relied upon and moreso, to convert acquittal recorded by the trial Court into conviction. In the circumstances, we find it difficult to hold that appellant-Shankarrao and appeliant-Ganesh shared any intention to kill deceased Gautam. Moreover, since the trial Court which had benefit of observing the demeanour of the accused had given benefit of doubt to other co-accused who are also alleged to have entered in the courtyard and some of them are said to have assaulted the deceased and Nivrutti, we are of the opinion that benefit of doubt should also be given to accused No. 4/appellant Shankarrao and accused No. 18 appellant Ganesh for offence under Section 302 read with Section 34 of the Indian Penal Code.

20. There is, in fact, not much evidence on record to interfere with the order of acquittal passed by the trial Court. The trial Court has considered the entire evidence on record in coining to the conclusion that involvement of the accused who have been acquitted, is not established beyond reasonable doubt. In view of this, the conviction of accused No. 4 appellant-Shankarrao and accused No. 18 appellant-Ganesh cannot be sustained and the same is required to be set aside.

21. Coming now to the assault on Nivrutti (PW-4), PW-4 Nivrutti himself has stated that when he intervened, accused No. 4/appellant Shankarrao and three other accused, viz. Bhimrao, Ramrao and Satish had assaulted him by means of stick. According to him, stick blows were given on his head and hand. He does not at all speak of assault by appellant-Raosaheb and appellant-Ganesh and obviously, in view of his own testimony, both of them cannot be held guilty for assault on him for which they have been found guilty by the trial Court under Section 307 read with Section 34 of the Indian Penal Code. Whose blow fell where, is not stated by him. On which part of the body, accused No. 4/appellant Shankarrao had assaulted him has not been stated by him. Though Tulsabai (PW-3) states that accused No. 4 appellant-Shankarrao had assaulted her husband Nivrutti on head, yet Nivrutti (PW-4) does not say so. Besides this, she has stated that all the eight persons had assaulted her husband. This again is an omnibus evidence inasmuch as she does not state the parts of the body and how many blows were given by them. There is no doubt that injury was found on the person of Nivrutti (PW-4). Three simple lacerated injuries were found on his person one on scalp, second on back side of left forearm and third on right back. In our opinion, the evidence on record in this respect does not inspire confidence so as to sustain conviction of all three appellants for the charges under Section 307 read with Section 34 of the Indian Penal Code. Even otherwise, the injuries on the person of Nivrutti are simple lacerated wounds and the question of applicability of Section 307 of the Indian Penal Code cannot come into picture at all. Though it is stated that there was suspected fracture, yet the prosecution has not led any evidence to prove any fracture on his person. In view of this, conviction of all the three appellants under Section 307 read with Section 34 of the Indian Penal Code is set aside. Likewise, conviction of Appellants-Shankarrao and Ganesh under Section 452 read with Section 34 of the Indian Penal Code is also set aside.

22. For the aforesaid reasons, Criminal Appeal No. 151 of 1997 is allowed and conviction and sentence against accused No. 4 appellant-Shankarrao Bhimrao Sarnaik and accused No. 18 appellant-Ganesh Bhimrao Sarnaik for the offences under Sections 302, 307 and 452 read with Section 34 of the Indian Penal Code is hereby set aside. Said appellants shall be set at liberty in case they are in custody and are not required in any other case.

Criminal Appeal No. 353 of 1997 is hereby partly allowed. Conviction of accused No. 5 appellant-Raosaheb under Section 302 of the Indian Penal Code as also sentence to suffer rigorous imprisonment for life and to pay fine of Rs. 5000/-, in default, to suffer further rigorous imprisonment for one year, is hereby maintained whereas his conviction and sentence under Section 307 read with Section 34 of the Indian Penal Code is hereby set aside. However, his conviction and sentence under Section 452 of the Indian Penal Code to suffer rigorous imprisonment for two years and to pay fine of Rs. 200/-, in default, to suffer further rigorous imprisonment for one month, is hereby maintained. Accused No. 5 appellant-Raosaheb shall be entitled to benefit of set-off under Section 428 of the Criminal Procedure Code.

Criminal Appeal No. 301 of 1997 filed by the State being totally devoid of merit, is hereby dismissed.