The State Of Maharashtra vs Bhagwan Jagannath Markad And Ors.
2007 Latest Caselaw 426 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard learned APP for the Appellant/State and learned advocate for the Respondents/Accused.

2. This is an appeal filed by the State against the acquittal of the accused, who are 16 in number, from different offences of the Indian Penal Code viz. 147, 148 and 149, 302 r/w 34, 307 r/w 149 and 34, 436 r/w 149 and 34, 447 r/w 149 by the IIIrd Additional Sessions Judge, Solapur, vide judgment dated 10th May 1990. This is a case where one Bibhishan Vithoba Khade died and Indubai, Dagadu Gopinath Koyale, (PW 11) were injured in the attack launched by all the accused who were armed with deadly weapons, according to the prosecution. One Chaturbhuj Khade (PW 18) was also injured by the accused. The incident had occurred when the persons from complainant side had gathered at the house of Dagadu Koyale for taking snacks in the morning because of Diwali. It was Dagadu who invited all the persons along with Murlidhar Kshirsagar and his son Bibhishan Kshirsagar at about 12-00 noon. All of them are sitting under a neem tree. At that time Indubai, the daughter of sister of Dagadu and Kernath came running towards the vasti and told Dagadu that some persons were proceedings to his vasti to assault Dagadu. All the accused thereafter came there by pelting stones on Kernath. They were armed with weapons and, therefore, Dagadu and all the above persons entered the house of Dagadu. Accused Nos. 1 and 2 asked accused No. 3 to set fire to the roof of the vasti. The accused No. 3 took out a match stick from his pocket set the roof to fire. Dagadu and other persons had to come out from the house because of fire and, at that time, assault was launched in the following manner:

1. Accused No. 2 pelted stones and gave stick blows to Gopinath - the father of Dagadu.

2. Accused Nos. 1 and 2 gave blows with sword on the head, left ear and hands of Dagadu;

3. Accused No. 3 gave barchi blows on both the hands and right leg of Dagadu;

4. Accused Nos. 2, 3, 4, 5, 6 and 7 assaulted Bibhishan Khade by sticks, barchi and axe;

5. Accused Nos. 10 and 11 assaulted Bibhishan Khade on his hand and legs by their respective axes.

6. Accused Nos. 10 and 11 assaulted Dagadu by their respective axes.

7. Indubai tried to save Dagadu. But she was also assaulted

8. Before leaving the vasti, the accused also assaulted Chaturbhuj Khade.

3. It will be clear that Bibhishan Khade, the victim, died and other persons were injured. Even though they were examined by the prosecution, the accused came to be acquitted and, therefore, this appeal by the State.

4. The learned APP for the State contended that the reasoning of the trial court is totally perverse. The judgment is liable to be set aside, because there are no strong and convincing reasons for disbelieving the evidence of injured witnesses.

5. On the other hand, the learned advocate for the accused contended that the approach of the trial court was most reasonable in the circumstances. The trial Court adopted one of the two views and the view of the trial court is reasonable and, therefore, no interference was called for.

6. It is required to be noted at this stage that there are two persons of similar names in this case. One is Bibhishan Khade - the victim, who died in the assault and another is Bibhishan Kshirsagar - the P.W. 15, who was injured in the assault. Then P.W.11 Dagadu Koyale, P.W.15 Bibhishan Kshirsagar, and P.W.18 Chaturbhuj Khade are the injured in the assault. Apart from these injured, the persons who are injured in the assault but not examined by the prosecution are Murlidhar Kshirsagar, Indubai and Gopinath Koyale. Then Accused No. 5 Sandipan Sakharam Koyale also received injuries in this assault. Statement of Accused No. 5 Sandipan was recorded under Section 313 of the Criminal Procedure Code by the trial Court. In reply to Question No. 63 i.e. Why the prosecution witnesses are deposing against you ? Accused No. 5 Sandipan gave following answer:

On Sunday 13th Bhibhishan Khade had been to me. He told me that Dagadu Koyale has called me to his Vasti. I accompanied Bhibhishan Khade to Vasti of Dagadu Koyale. Dagadu Koyale, Gopinath Koyale, Bhibhishan Kshirsagar, Murlidhar Kshirsagar were present. Dagadu narrated me that the election of Sarpanch of village will be held and told that I should not contest the election. I told him that he has enjoyed term for 10 to 12 years hence I will contest. Dagadu told Bibhishan that he would narrate about it to me. Bibhishan Khade narrated to Dagadu he was Sarpanch for 10 to 12 years and whether he is a king, hence Sandipan should be allowed to contest the election. Dagadu Koyale, Gopinath Koyale, Murlidhar Kshirsagar, Bibhishan Kshirsagar rush on the person of Bibhishan Khade, Bibhishan Khade took out sticks and gave two stick blows each to Murlidhar Kshirsagar, Bibhishan Kshirsagar, Bibhishan Khade ran away behind the hut. Dagadu Koyale came to me and gave axe blow on my left hand and hence I sat on the ground. Dagadu Koyale ran towards Bibhishan Khade with axe and gave blows by axe on the person of Bibhishan Khade. Bibhishan Khade gave axe blow on the person of Dagadu Koyale. I was trying to ran away but meanwhile Gopinath Koyale came with axe and obstructed me. I pushed him for force. Dagadu Koyale came towards me. There was scuffle between me and Dagadu. I snatched an axe from the hands of Dagadu Koyale. I pushed him. I throw away an axe and ran away. I had been to Hospital at Kurduwadi. I have lodged complaint in Kurduwadi Police Station. Then I was sent to Civil Hospital, Solapur.

The other accused have not, in their statements under Section 313, Cr.P.C., taken any such defence. But when they were asked as to why the prosecution witnesses are deposing against them, their reply was, they cannot say. This is, therefore, a case where out of all the injured persons in the assault, the prosecution has examined Dagadu Gopinath Koyale as P.W.11; Bibhishan Murlidhar Kshirsagar as P.W.15 and Chaturbhuj Appa Khade as P.W.18. They are the eye witnesses to the incident. P.W.10 Satyabhama Dagadu Koyale is also the eye witness. She is the wife of Dagadu Koyale. She has lodged the FIR. The prosecution has examined one more witness P.W.12 Kernath Baba Koyale, who has seen the incident partly. But even then, that is, when three injured eye witnesses are examined in addition to two more witnesses i.e. P.W.10 and P.W.12, the trial Court disbelieved the entire case of the prosecution and acquitted the accused. The acquittal is based on omissions and contradictions which are not at all material and which do not affect the veracity of the witnesses or create any doubt about the prosecution case, according to the learned APP.

7. For proving the injuries on the persons of Bibhishan Khade and other eye witnesses, the prosecution has examined P.W.4 Dr.Shravan Gavhane. He has performed post mortem on the body of Bibhishan Khade and found seven injuries noted in column No. 17. All those injuries were ante mortem. Injury No. 1 was on vital part of the body. It was corresponding with the internal injury mentioned in column No. 19. The brain was damaged and, the cause of death was, "Shock and haemorrhage due to head injury". Injury No. 1 could be caused by an axe (Article 55) and, other injury Nos. 2 to 7 could be caused by hard and blunt object like sticks or swords. Dr.Gavhane examined Kernath Koyale who had one scabbed wound on back of left four arms middle part and second wound was scaled wound on back below left scapula.

8. To prove the injuries on the persons of other prosecution witnesses, the prosecution has examined P.W.5 - Dr. ineshkumar Kadam. He has stated that on 13-11-1988 he had examined accused No. 5 Sandipan Sakharam Koyale and noted the injury mentioned in Certificate Exhibit 59 i.e.:

Incised wound on Lt. forearm ulnar side triangular flap of skin is came out measuring 10 c.m. in length. 6 c.m. in maximum breadth fracture of bones cannot be determine bleeding present.

He also examined Dagadu Gopinath Koyale (PW 11) and noted the following injuries on his person:

1. Incised wound 3 cm. above Lt.knee Joint Transverse 10 cm. in length x 4 cm. in breadth muscle deep bleeding present.

2. Incised wound on Lt. leg 8 c.m. above Lt. ankle Jt. oblique wound cut to medial 10 c.m. x 5 c.m. through with fracture of fibict and fibula tranversing cut seen.

3. Contused lacerated wound on left ankle Joint 3 c.m. 1 c.m. skin deep bleeding present.

4. Incised wound on Rt. lower leg 3 c.m. x 1 c.m. muscle deep bleeding present.

5. Incised wound on Rt. Calf 4 c.m. x 1 c.m. muscle deep bleeding present.

6. Incised wound on left aspect as Rt. leg. 5 c.m. above Rt. ankle Joint 8 c.m. x 4 c.m. fracture of fibula bleeding present.

7. Incised wound on Rt. Forearm middle 8 c.m. x 5 c.m. triangular flap of skin came out and fracture of bones bleeding present.

8. Incised wound on Rt. foot at the base of great toe 3 c.m. x 1 c.m. bleeding present.

9. Incised wound on forehead middle 3 c.m. x 1 c.m. skin deep bleeding present.

10. Wheelmark on (Lt.) forearm mid-forearm to wrist Joint Red fracture cannot be determined Red in colour. . Dr.Kadam (PW 5) also examined Gopinath Mahadev Koyale and found the following injuries on his person:

1. Contused lacerated wound on forehead 4 c.m. x 2 c.m. scalp-deep? fracture of frontal bone, bleeding present.

2. Wheel mark on (Rt.) forearm 5 c.m. x 1 c.m. Red in colour.

Then P.W.5 Dr.Kadam examined Chaturbhuj Appa Khade (PW 18) and noticed one injury on his person viz.

1. contused lacerated wound (Rt.) lumbar region anteriorly 3 c.m. x 1 c.m. Intra Peritoneal injury cannot be determined bleeding present.

The doctor (PW 5) has also examined Bibhishan Murlidhar Kshirsagar (PW 15) and found the following injuries:

1. Contused lacerated wound on vertex 2 c.m. x 1/2 c.m. scalp deep bleeding present.

2. Contused lacerated wound on (Rt.) leg above ankle Joint 3 c.m. x 1 c.m. Skin deep bleeding present.

Then Dr. Kadam (PW.5) examined Murlidhar Yeshu Kshirsagar and found the following injuries on his person:

1. Contused lacerated wound on Rt. temporal region 2 c.m. x 1/2 c.m. scalp deep bleeding present.

2. Wheel mark on back left side lumbar region 6 c.m. x 2 c.m. Red in colour.

3. Contused lacerated wound on occipital region 1 c.m. in diameter bleeding present.

9. It is pertinent to note that this witness Dr.Dineshkumar Kadam (PW 5) was cross examined by and on behalf of all the 16 accused. There is nothing in his cross examination to create doubt about the testimonies of this doctor or about his observations, findings or certificate.

10. Same is the case when Dr.Gavhane (PW 4) was cross examined by and on behalf of all the 15 accused. It is, therefore, clear that these two doctors have proved all the seven injuries on the person of Bibhishan Khade and the aforesaid injuries on the persons of other witnesses. The injuries received by the complainants side during the said assault were severe and serious in nature. It will be clear that these injuries on the six persons from the side of the complainant positively proved their presence at the time of incident. There cannot be any doubt about that. Because no question was put to any of the two doctors to suggest that all or any of these injuries to these six injured persons could be self inflicted.

11. First eye witness examined by the prosecution is P.W.10 - Satyabhama Dagadu Koyale -the wife of Dagadu. She has stated that the relations between her husband and accused No. 2 are enmical. On 13-11-1988 it was Sunday. Bibhishan Khade, Chaturbhuj Sopan, Bajirao, Murlidhar Kshirsagar and Gopinath Koyale were sitting along with her husband and father-in-law under nim tree at about 12 noon. She and Vimal were cooking in the house. At that time, Indubai -the sister of her husband came running and told her husband that some persons were coming to assault him. She, therefore, came out of the house and saw that accused No. 2 had an axe; accused No. 1 had sword. All the accused came there by pelting stones. Therefore, the friends of her husband entered her house. Accused 2 asked to set fire to the vasti i.e. to the house of Dagadu and, accused No. 3 took out match stick from his pocket and set fire to the vasti. Those who were inside the house had to come out and started running away.

12. Thereafter Accused Nos. 1 and 2 started giving blows by axe and sword to Dagadu. Accused No. 3 gave blow with barchi to Dagadu. Accused No. 4 gave knife blow. Accused No. 6 gave blow by Barchi. Accused No. 5 gave blow by iron bar and Accused Nos. 7, 11 and 10 gave blows by axe to Dagadu. Due to which, Dagadu fell down. Indubai fell on the person of Dagadu. But she sustained injuries by stones.

13. This witness (PW 10) further stated that Bibhishan Khade was assaulted by accused No. 5 by iron bar, accused No. 3 by barchi, accused No. 6 by barchi and accused No. 7 by axe and accused Nos. 10 and 11 by axes and other accused by sticks and sword.

14. She also stated that Gopinath sustained injuries on head, ear and hand. Then Bibhishan Khade fell on the ground and died, and her husband Dagadu became unconscious due to assault. Thereafter Bibhishan and Dagadu were kept in bullock cart. When they came just ahead of wireless tab which was on Kurduwadi-Pimplaner road, a jeep of police from Kurduwadi came. The jeep was stopped and Bibhishan and Dagadu were kept in the jeep and taken to Kurduwadi Police Station where she lodged the report (Exhibit 87).

15. Cross examination of this witness is very short and cryptic. Attempt is being made to bring out only omissions and contradictions. They are of the following nature. It is not mentioned in the complaint that her husband and others were sitting under the neem tree. It is not mentioned in the complaint that accused came by pelting stone. It is not mentioned in the complaint that Vimal and Popat Waghmode were out of the house when the stones were pelted. It is not mentioned in her complaint that her husband and others entered the house. There is no mention in the complaint that accused No. 3 took out the match box from his pocket and set the shed to fire. There is no mention in her complaint that accused No. 2 asked to set fire and no particulars are given in the complaint about the weapons used by the accused or by which weapons Bibhishan was assaulted.

16. It is for these reasons that for not giving particulars of assault viz. which of the accused used which of the weapon, the trial Court disbelieved this witness totally and completely. This is totally perverse approach and is a strong reason to interfere with the findings of the trial Court.

17. The next witness examined by the prosecution is Dagadu Gopinath Koyale (PW 11), who is the husband of P.W.10 Satyabhama. P.W.11 Dagadu has given same story and corroborates P.W.10. He has stated that on 13.11.1988 he had called Keraba Koyale, Bibhishan Kshirsagar, Chaturbhuj Khade, Bibhishan Khade, Bajirao Khade, Sopan Khade, Arjun Markad to his house in the afternoon because of Diwali. They were sitting under a nim tree along with Gopinath - the father of Dagadu and Popat Waghmode. His both wives were inside the house for cooking the meals.

18. At that time, Kernath, who was having his land to the adjacent area, came running and shouting that some persons had come to beat. Indubai also came running hurriedly. Indubai is the daughter of Dagadus sister. The accused Nos. 1 and 2 having swords, accused Nos. 3 and 6 having Barchi, accused Nos. 7, 10 and 11 having axes, accused No. 8 and others having sticks in their respective hands came there. Dagadu and his guests entered the kitchen of Dagadus house. Accused Nos. 1 and 2 shouted to set fire to the Vasti. Accused No. 3 took out match stick from match box and set the Vasti i.e. the residential house of Dagadu to fire. Therefore all those inside came out and, then assault started.

19. Accused No. 2 gave stones and sticks blows on Gopinath - the father of Dagadu. Accused Nos. 1 and 2 gave blows of swords on the head, left ear and hands of Dagadu. Accused No. 3 gave blows by Barchi on both hands and right leg of Dagadu. Accused No. 5 Sandipan and accused Nos. 2, 3,4, 6 and 7 assaulted by sticks, Barchi and axe to Bibhishan Khade who received injuries on his left leg, head and stomach and he died on the spot. Bibhishan Kshirsagar was also assaulted by stone.

20. Kernath Koyale (PW 12) supported the evidence of P.W.10 Satyabhama and P.W.11 Dagadu. He stated that friends of Dagadu had assembled for Diwali snacks . They reached Dagadus house at about 11.45 a.m. They were sitting under a Nim tree. Since there was time for food to keep ready, he told Dagadu that he would be harvesting makawan in his land and went to his land. At that time all the accused came there from the village side and, therefore, he ran shouting towards Vasti of Dagadu. The accused were armed with sword, gupti, sticks, knife and barchi.

21. Further according to this witness Kernath, when he narrated Dagadu that the accused had come to assault him, accused No. 2 asked him why he (witness) was shouting and pelted stones towards him. Kernath, therefore, went back running at a distance of about 500 to 600 ft. and looked back. He saw that the accused were pelting stones and cattle shed was set to fire. He, therefore, went to village Shidshinge in search of police patil. The police patil was not available. The police patil, may be at his land, therefore Kernath went to the land of Police Patil and narrated the incident to Ganpat Balwant Patil - the police patil of village Shidshinge. Both of them went to wire less centre where a phone call was made by constable on wire less to the police station at about 3 to 3.15 p.m. A message that Sandipan Koyale and others have set fire to the roof of the cattle shed was given. One Dhabekar - police constable, took the phone message and then, this witness returned back at 6 p.m. where he found that Gopinath Koyale, Bibhishan Kshirsagar, Chaturbhuj Khade were lying in the Vasti and house of Dagadu i.e. Vasti was reduced to ashes.

22. The next witness examined by the prosecution is P.W.13 Rangnath Dhabekar the Police Head Constable attached to Kurduwadi Police Station at the relevant time. He stated that on 13.11.1988 he was in the police station. At about 3.00 p.m. he received a phone message from Kernath. The message was taken down in the station diary at Exhibit 92 and he then proceeded to Sadshinge in a tempo with four police men. One bullock cart was seen in front of wire less station at about 5.30 p.m. Dead body of Bibhishan and two injured viz. Dagadu and Indubai were in the bullock cart. They were sent in a jeep to the police station. He then went to the scene of offence and he saw Bibhishan Kshirsagar, Chaturbhuj Khade and Gopinath in injured condition and the vasti in burnt condition. All injured then sent to the police station. He waited to the scene of offence where PSI came at about 10 p.m.

23. Bibhishan Kshirsagar - who is the injured and eye witness, was examined by the prosecution as P.W.15. He has stated about going to Vasti of Dagadu for taking meals of Diwali in the afternoon as per the invitation, that all persons gathered there, Kernath came shouting, so also Indubai, that people from village are coming to assault. He saw all the accused armed with sword, sticks, axes. Therefore all those invitees, sitting under the Nim tree, had entered the house of Dagadu. Stones were pelted. Accused No. 2 asked to set fire to the Chhappar. There was fire to the roof of the house and, therefore all those invitees came out running. P.W.15 tells about the assault. He stated that accused Nos. 1, 3, 5 and 10 pelted stones at different parts of his body. Accused No. 2 assaulted Gopinath Koyale with stones and stick. Accused Nos. 1 and 2 assaulted Dagadu by stones. Accused Nos. 3, 4 and 5 assaulted Dagadu by axe, sword and sticks. Bibhishan Khade ran towards the lands. But he was assaulted by accused No. 2 with sword, accused No. 6 by Barchi and accused Nos. 10 and 11 by axes, accused No. 3 by barchi and rest of the accused by sticks. Bibhishan Khade sustained injuries on his head and leg. Thereafter Chaturbhuj Khade was assaulted by accused No. 3 by Barchi on the wrist. Then the accused ran towards the village.

24. P.W.18 is Chaturbhuj Khade who supports the earlier eye witnesses. He is the uncle of deceased Bibhishan Khade. Bibhishan Khade was residing at Bombay but he had come to village Shidshinge for Diwali on 11.11.1988. This witness has stated that all the persons assembled at the house of Dagadu for Diwali in the24 afternoon. They were sitting under the Nim tree. Kernath Koyale went to harvest Makwana. After 15 minutes, Kernath came shouting that persons had come to assault. P.W.18 has given the particulars of assault in the following manner : Accused Nos. 1 and 2 had swords. Accused No. 2 pelted stones at Kernath as to why he was shouting. Indubai had also came there shouting to alter the guests and Dagadu. All those persons entered the cattle shed and thereafter shed was set to fire by accused No. 3, therefore, all those, who entered the house, came out. Then accused No. 3 gave gupti blow on the waist of this witness at right side and accused No. 1 gave blow on his left fore head. Further according this witness, Dagadu was assaulted by accused Nos. 1, 2 3 and 5 by sword, axes and sticks. Bibhishan Khade was assaulted by accused Nos. 1, 2, 3, 5, 6 and 7 on his head by sword and on his leg by axed. Bibhishan Khade died. Accused No. 5 sustained injury on his left hand during the assault. According to his witness, Gopinath was assaulted by sticks and stone. He became unconscious. Murlidhar Kshirsagar was also assaulted by sticks and stones.

25. From the aforesaid evidence, it is clear that all the aforesaid five prosecution witnesses i.e. P.W.10, 11,12, 15 and 18 are given same version of the incident. We have reproduced specific defence raised by accused No. 5 in respect of the injury sustained by him and, the defence raised gives credence and credibility to the prosecution case.

26. We have yet to discuss the cross examination of all these witnesses. What is required to be noted here is that all the prosecution witnesses are consistent with their story. They got full support by the injuries received by them as well as injuries received by some other persons from prosecution side who were not examined by the prosecution but their medical certificates in that regard were proved by the doctors and further corroboration is received by the statement given by accused No. 5 Sandipan because he had also suffered from the serious injuries. Further corroboration is there from the evidence of PW 13 - P.H.C.- Rangnath Dhabekar.

27. So far as Dagadu is concerned, he was confronted with his earlier statements and certain omissions and contradictions are brought on record. They are of the following nature:

He did not tell police that all of them ran in kitchen. He did not mention in his police station that accused No. 3 took out the match stick from match box and light it. He did not mention in the police station that accused Nos. 1 and 3 gave sword blow on his hand, that accused No. 2 assaulted his father by sticks, that Bibhishan Kshirsagar was assaulted by stone. He admitted that Jagnath Sadu Markad father of accused No. 1 lodged complaint for assault by sword against him on 20.10.1988 to the effect that Dagadu assaulted Jagnath by sword. He admitted that he was arrested on the said complaint and charge sheet was filed against him and the case was pending. He also admitted that on 6.10.1988 accused No. 3 lodged complaint for assault by stones against him and the case was pending and that he was arrested. Further in the cross examination the defence raised by the accused No. 5 in his statement under Section 313 and reproduced by us was suggested to this witness by one by one. But he denied all those suggestions.

28. So far as P.W.12 Kernath is concerned, nothing fruitful has come to his cross examination. Because his role was to flee from the spot as soon as pelting of stones started and go to the wireless station and convey message to the police patil and then to the police head constable.

29. Cross examination of Bibhishan Kshirsagar (PW 15) is concerned, he has stated that he could not see as to how many blows were given on the person of Gopinath by sticks. He could not say whether 4/5 stones were pelted on Gopinath. He did not mention in his police statement that accused No. 2 had assaulted Gopinath by sticks. He could not say such blows were given to Dagadu. He did not mention in the police statement that accused Nos. 4 and 5 assaulted Dagadu and there is no specific mention that accused Nos. 1 and 2 assaulted Dagadu by sword. Further in his statement he had not stated that accused Nos. 1 and 2 assaulted Bibhishan by sword, but he said in general about the weapons . He did not mention in the statement that anybody assaulted Bibhishan by barchi or that accused Nos. 10 and 12 assaulted Bibhishan by any weapon. He did not mention in the police statement that Bibhishan sustained injuries specifically on leg and head. He did not state before police that accused No. 1 has used barchi for assault to Chaturbhuj but he stated that accused No. 1 has assaulted Chaturbhuj by Gupti. He admitted that he kept Bibhishan and Dagadu in bullock cart but the blood from their body was not stained on his cloth. He did not go in bullock cart with them. He also admitted that he was accused along with Dagadu and others in Criminal Case No. 162 of 1988 and that accused No. 3 Dada Mulani had lodged a complaint on 6.10.1988 for pelting the stones against him and Dagadu. Defence suggested to him was similar to that raised by accused No. 5 in his statement under Section 313 of the Cr.P.C. But all those suggestions were denied.

30. P.W.18 Chaturbhuj Khade was also subjected to cross examination. He was questioned with reference to his previous statements to the police. He admitted that in his police statement he did not state that Bibhishan Kshirsagar and Murlidhar Kshirsagar were assaulted by any of the accused. He denied the suggestion that accused No. 3 assaulted him by knife and then he ran away towards East. He was confronted with his statement portion mark A of his statement. This with reference to use of either gupti or knife. He further denied that he and Bajirao ran away to wireless centre and then they came to know about the assault on the persons of Bibhishan and Sarpanch. He also denied that he came to know at the wireless centre that Bibhishan Khade had died on the spot and leg of Dagadu was cut. He was confronted with portion mark B of his statement. He stated that he has no explanation why this portion appeared. Then he was confronted with certain particulars regarding injuries sustained by accused No. 5 with reference to his police statement. He admitted that criminal case No. 162 of 1988 was filed against him and Dagadu for assault by sword on the person of father of accused No. 1 and that he was arrested.

31. The learned Counsel for the accused, therefore, strenuously urged that if these contradictions and omissions are seen, it will be clear that the witnesses are not telling truth. He further argued that all the eye witnesses are involved in one or more criminal cases launched by one of the persons from the side of the accused and, therefore, this case is nothing but an outcome of revenge.

32. It is true that there are contradictions and omissions but none of them, according to us, is vital or material. They are regarding the particulars. When 7/8 persons are injured and assailants are about 16, then these omissions are bound to be there. They are natural omissions and contradictions and the most important fact that wipes out the effect of these contradictions and omissions is that many persons from the side of complainant had received injuries, so also accused No. 5.

33. This is not a case of exercising the right of self defence of the accused. No such plea was raised before us nor from the case of the prosecution any such plea can be permitted to be raised directly or indirectly by the accused. The accused are aggressors. They have launched attack while persons from the complainants side had assembled to celebrate their Diwali. Vasti was set to fire. Bibhishan Khade died in the said attack and many persons from the side of complainant had received injuries. The assault was by deadly weapons like sword, barchi, knife, gupti and sticks. This was, therefore, not a case of clear cut acquittal of all the 16 accused. No further corroboration is necessary. Investigation is prompt and swift and even if other evidence regarding recovery of incriminating articles is not considered, the oral evidence and ocular evidence of the aforesaid witnesses i.e. P.W. 10, 11, 12, 13, 15 and 18 and others discussed by us including those two doctors fully prove the prosecution case. The findings of the trial Court are totally perverse and therefore this appeal is required to be allowed, but to what extent and against which of the accused is the question. The close scrutiny of the evidence of eye witnesses particularly P.W. 10, 11, 15 and 18 shows that P.W. 10 has implicated accused Nos. 1, 2, 3, 5, 6, 7, 10 and 11. P.W. 11 has implicated accused Nos. 1, 2, 3, 4, 5, 6, 7 and according to P.W. 11, accused No. 3 set fire to the Vasti. P.W.15 has implicated accused Nos. 1, 2, 3, 4, 5, 6, 10 and 11. P.W. 18 has implicated accused Nos. 1, 2, 3, 5, 6, 7 and, according to him, accused No. 3 set fire to the Vasit. Presence of accused No. 5 Sandipan at the spot is fully proved, apart from other evidence, because of the injuries suffered by him. There are in all 16 accused. Considering the aforesaid evidence, this appeal against acquittal has to be allowed in respect of accused Nos. 1, 2, 3, 4, 5, 6, 7, 10 and 11, and their acquittal is required to be set aside. So far as accused Nos. 8, 9, 12, 13, 14, 15 and 16 are concerned, their acquittal is required to be upheld. Undoubtedly, the accused Nos. 1 to 7 and 10 and 11 had formed an unlawful assembly with a common object of launching an assault. The house or vasti of Dagadu was set to fire. In the attack Bibhishan Khade died and P.W.11, 15 and 18 and others received injuries by deadly weapons. Therefore, for causing death of Bibhishan Khade the accused are required to be held guilty under Section 302 read with Section 149 of the Indian Penal Code and for causing severe injuries to the aforesaid prosecution witnesses and others, they are required to be held guilty under Sections 324 and 326 r/w 149 of the Indian Penal Code. So far as offence under Section 436 of the Indian Penal Code is concerned, the evidence of the prosecution witnesses is not consistent and, therefore, nobody can be convicted under that section. We, therefore, pass the following order:

ORDER

Appeal is partly allowed. Acquittal of accused Nos. 8, 9, 12, 13, 14, 15 and 16 on all counts is upheld. They are on bail. Their bail bonds stand cancelled.

Acquittal of Accused Nos. 1 to 7, 10 and 11 of the offences punishable under Section 436 r/w Sections 149 and 34 of the Indian Penal Code is upheld.

Accused Nos. 1 to 7, 10 and 11 are held guilty under Sections 147, 149, 302 r/w 149, 324 and 326 r/w 149 of the Indian Penal Code.

Accused Nos. 1 to 7, 10 and 11 are sentenced to suffer R.I. for two years under Section 147 of the Indian Penal Code.

Accused Nos. 1 to 7, 10 and 11 are sentenced to suffer imprisonment for life under Section 302 r/w 149 of the Indian Penal Code and to a pay fine of Rs. 5000/ each in default they have to further suffer R.I. for one year.

Accused Nos. 1 to 7, 10 and 11 are sentenced to suffer R.I. for three years under Sections 324 r/w 149 of the Indian Penal Code.

Accused Nos. 1 to 7, 10 and 11 are sentenced to suffer R.I. for five years under Sections 326 r/w 149 of the Indian Penal Code and to pay fine of Rs. 5000/ each in default they have to further suffer R.I. for one year.

All the substantive sentences to run concurrently.

Accused Nos. 1 to 7, 10 and 11 are on bail. Their bail bonds stand cancelled. They have to surrender before the trial Court within eight weeks from today for undergoing sentence. If they fail to surrender themselves, the trial Court shall take action under Criminal Procedure Code and send them to jail for undergoing sentence.

Appeal is disposed of accordingly.