Bombay High Court
Mahadeo Shankar Dhaygude vs The State Of Maharashtra on 12 December, 2012
Bench: V.M. Kanade, P. D. Kode
apeal476-07 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.476 OF 2007
1. Mahadeo Shankar Dhaygude,
age 51 years, Occ: Agri.
2. Namdeo Bapurao Dhaygude,
age 32 years, Occ: Agri.
3. Ganpat Attamaram Dhaygude,
age 24 years, Occ: Agri.
4. Kashinath Dagdu Dhaygude,
age 30 years, Occ: Agri.
5. Sanjay @ Sandeep Sadashiv Dhaygude,
age 24 years, Occ: Agri.
6. Ankush Dinkar Dhaygude,
age 38 years, Occ: Agri.
7. Anil Mahadeo Dhaygude,
age 27 years, Occ: Agri.
8. Sharad Pralhad Dhaygude,
age 23 years, Occ: Agri.
9. Bhagwan Shankar Dhaygude,
age 34 years, Occ: Agri.
All are residing at village
Dhaygudevasti under
Nirawagaj, Tah. Baramati,
Dist. Pune.
(At present in Yerwada Central
Prison, Pune) .. APPELLANTS
(Orig Accused
Nos. 1 to 9)
.. Versus ..
The State of Maharashtra .. RESPONDENT
Mr. D.G. Khamkar, Advocate for Appellants.
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apeal476-07 2
Mrs. V.R. Bhosale, A.P.P. for Respondent-State
CORAM : V.M. KANADE AND
P.D.KODE, JJ.
DATED : December 12th, 2012
ORAL JUDGMENT ( Per P.D. Kode, J.)
1. The appellants have challenged the judgment and order
dated 30.4.2007 passed by the learned Additional Sessions Judge,
Baramati convicting them for commission of offence under Sections
148, 302 and 324 of the Indian Penal Code and sentencing each of
them to suffer rigorous imprisonment for 1 year and to pay fine of
Rs.500/- & in default to undergo simple imprisonment for one month
on first count; to suffer imprisonment for life and to pay fine of
Rs.5000/- & in default to undergo simple imprisonment for 6 months
on second count and suffer rigorous imprisonment for one year
and to pay fine of Rs.500/- & in default to undergo simple
imprisonment for 15 days on third count.
2. All the said appellants (hereinafter for short referred as A1
to A9 as per the names in the title clause) at trial were charged for
commission of offences under Sections 302, 307, 326, 324, 325,
147, 148, 149, 337, 323, 504 and 506 of I.P.C.
3. According to the prosecution, first informant PW1
Kashinath was residing at village Nira-wagaj along with mother,
wife Surekha, sons Harishchandra and Manohar and daughter Vidya.
His brothers PW3 Sukhdeo and deceased Balasaheb were
residing separately in adjacent houses. They had gifted nearby land
to Grampanchayat for running Anganwadi/Nursery School. The
appellants were from brotherhood of PW1 and were residing nearby
house of PW1.
3.1. One lady teacher Mrs. Pawar had complained of pelting
stones on the tin roof of Anganwadi and of spitting star Gutkha on
the door and corner of Anganwadi causing nuisance since 10 to 15
days prior to occurrence of the main incident on 31st of July, 2001.
On the day of incident at about 8.30 p.m., while in house along
with family members PW1 heard sound of pelting of stones on tin
roof of Anganwadi. Balasaheb along with his son PW2 Pravin
went to the Anganwadi. The appellants present at said place picked
up quarrel with them. The appellants brought axe, iron bars, sticks
and stones at the said place.
3.2. The appellants abused Balasaheb and PW2 and started
assaulting them with weapons. After hearing noise of exchange of
words, PW1, his sons Harishchandra and Manoj rushed to
Anganwadi and found that all the appellants were abusing and
assaulting Balasaheb and PW2 with sticks, iron bars, stones and
axe. They tried to intervene. Thereupon A2 Namdeo rushed at PW1
and gave blow of stick on the head of PW1 due to which he fell
down. A2 gave another blow of stick on the head of PW1. As
incident was in progress, PW3 Sukhdeo came on motorcycle from
Baramati. PW3 requested the appellants for not assaulting
Balasaheb, PW2, Manoj, PW1 and Harishchandra. However, they
did not pay any heed and also assaulted him with sticks.
3.3. Balasaheb, Harishchandra, Manoj, PW2, PW3 and PW1
sustained injuries in the incident. They were taken to Silver Jubilee
Hospital at Baramati. The condition of Balasaheb was serious. He
had sustained serious injury on his head. PW2 had sustained injury
on face with fracture of nose and maxilla. Others had also sustained
injuries. PW1 while under treatment at Silver Jubilee Hospital, gave
information Exh.35 to ASI Khaire of Baramati Taluka Police Station
who had been to said hospital due to receipt of telephonic
information from the hospital regarding admission of Balasaheb and
four others, injured in an incident of assault.
3.4. Crime No.53/2001 was registered by said Police Station
upon said information for the offences punishable under Sections
147, 148, 149, 307, 325, 326, 337, 504 and 506 of Indian Penal
Code. The investigation was taken up by PW9 P.I. Shah.
Balasaheb under medical treatment succumbed on 15th August,
2001. PW9 at the conclusion of the investigation, submitted the
charge sheet against the appellants in the Court of the Judicial
Magistrate First Class, Baramati for commission of offences as
narrated earlier. The case registered thereon was duly committed
to the Court of Session at Baramati.
4. The appellants pleaded not guilty to charge framed at trial
for earlier mentioned offences.The prosecution examined in all 9
witnesses at the trial i.e. four witnesses so far referred and
additionally PW4 Vijaykumar Dhaigude nephew of the deceased,
who had also rushed to Anganwadi soon after the incident, PW5 Dr.
Sou. Manik Suryawanshi who had examined deceased and all four
injured persons at Silver Jubilee Hospital, Baramati and issued injury
certificates Exhs. 51 to 55; PW6 Dr. Baban Nimbalkar who had
examined PW2 after he was referred to his hospital from Silver
Jubilee Hospital and issued injury certificate Exh.58; PW7 Dr.
Bhoite from Giriraj Hospital at Baramati who had treated Balasaheb
and given cause of death and panch PW8 Deokate regarding the
arrest of A1, A5, A7, A8, and A9 on 3rd August, 2001 and seizure of
an axe and sticks produced by A1 under panchanama Exh.62. The
prosecution also relied upon the documentary evidence which came
to be prepared during the course of investigation.
5. The defence of the appellants as disclosed from the trend
of the cross-examination and from the written statements submitted
was that while A1 to A6 were sitting in front of Anganwadi at the
time of incident, came at the said place in drunken condition along
with the prosecution witnesses armed with sticks and iron bars.
They abused A1 to A6 in filthy language and all of sudden they
started beating the appellants. During said assault, in the darkness
Balasaheb PW2 and the other witnesses sustained injuries from
their own people while they were escaping from the place of
incident. Balasaheb while being taken to Baramati for medical
treatment on motorcycle, met with an accident and received injury
at head which subsequently resulted in death. PW1 and the other
prosecution witnesses had assaulted the appellants. The appellants
had filed FIR with the Police Station upon which crime was
registered and Sessions Case No. 87 of 2003 arising out of the same
was pending against PW1 and other prosecution witnesses. As a
counter blast, PW1 had lodged false report with the Police.
6. Some of the appellants at the end of their examination
under Section 313 of the Code of Criminal Procedure though replied
that they do not wish to examine themselves on oath, informed of
examining PSI Khaire and Medical Officers from Silver Jubilee
Hospital. Curiously enough in support of the defence, the appellants
again examined PW5 Dr. Manik Suryawanshi as defence witness
no.1 regarding injuries noticed by PW5 during examination of A1, A5
on 2nd August, 2001 at 12.15 p.m. and injury certificate issued by
her. Similarly the appellants examined Dr. Subhash Jagtap from
same Silver Jubilee Hospital as defence witness no.2 regarding
examination made by him of A2, A3 and A4 brought by Police on 1st
August, 2001 at the said hospital at about 2.30 p.m. and injury
certificates issued by him.
7. The trial Court came to the conclusion that prosecution
has proved that Balasaheb had met homicidal death; the appellants
were members of unlawful assembly and were armed with axe, iron
bars, sticks and stones and in prosecution of common object of the
said assembly, had committed the offence of rioting and so also
murdered Balasaheb and voluntarily caused hurt to PW1, PW2,
PW3 and so also Harishchandra and Manoj. However, trial Court also
came to the conclusion that the prosecution had not proved that
the appellants in prosecution of the common object of the assembly
had attempted to commit the murder of PW2 and abused and
intentionally insulted prosecution witnesses and provoked them to
commit breach of public peace. Accordingly the trial Court
convicted and sentenced the appellants as narrated in the
commencing part of the judgment.
8. Mr. D.G. Khamkar, the learned counsel for the appellants
urged that the trial Court ignoring the defence of the appellants,
erroneously accepted the evidence of the main prosecution
witnesses i.e. PW1 to PW4. It was urged that in spite of the evidence
of the said witnesses being full of infirmities and variances, the trial
Court accepted the same for coming to the conclusion of the said
evidence having established the guilt of the appellants. It was urged
that the trial court ignoring the injuries on the person of A1 to A5 as
established by the defence evidence of DW1 and DW2, failed to
appreciate that the incident was an outcome of a free fight ensued
in between the parties. By placing reliance upon the various
decisions, it was canvassed that the incident being outcome of free
fight, the trial court could have never come to the conclusion that
the appellants were members of the unlawful assembly and in
prosecution of common object of the said assembly, had committed
the offences as erroneously concluded. It was urged that the trial
Court ought to have concluded that since incident had occurred in
melee, for establishing the guilt of the particular appellant in
assaulting a particular injured, the evidence of more than one
witness to such an effect was necessary and since such evidence
was lacking, the trial Court ought to have held that the guilt of the
appellants for commission of the offences under Sections 148, 302
and 324 of the I.P.C. was not established. It was urged that the trial
court failed to appreciate that all the prosecution witnesses were
interested witnesses and without there being due corroboration from
the evidence of independent witness or at least from the cogent
evidence of two witnesses, no conclusion of guilt of a particular
appellant could have arrived. It was urged that considering such a
character of prosecution evidence, the trial Court ought to have
acquitted each of the appellants or at least should have given
benefit of doubt to the appellants. It was urged that judgment and
order of conviction passed by the trial Court being not legally
sustainable, the same be quashed and set aside by allowing the
appeal and acquitting them. The learned counsel for the appellants
in support of his submissions placed reliance upon the decisions in a
case of:
(i) Masalti .vs. State of Uttar Paradesh 1965 (1) Cr.L.J. 226,
(ii) Lalji .vs. State of U.P. AIR 1973 Supreme Court 2505,
(iii)Kanwarlal .vs. State of M.P. AIR 2002 Supreme Court 3690
(iv) Balaur Singh .vs. State of Punjab 1995 Cri. L.J. 3611
(v) State of Haryana .vs. Chandvir 1996 Cri. L.J. 3197.
9. Mrs. V.R. Bhosale, the learned A.P.P. for the State on the
other hand fully supported the judgment by urging that
ig the trial
Court has given the cogent reasons for coming to the conclusion of
Balasaheb having met with homicidal death on the basis of the
medical evidence on the record and even de hors the account of
incident unfolded by the main prosecution witnesses. She urged
that the cogent reasoning has been given by the trial Court for
accepting the evidence of main prosecution witnesses PW1 to PW4
for coming to the conclusion that by the said evidence prosecution
has established the acts of omission and commission on part of each
of the appellants and the same being in prosecution of the common
object of an unlawful assembly of which they were members and
were armed with the weapons as claimed by the prosecution. It was
urged that while coming to such conclusion, the trial court had duly
taken into consideration the defence of the appellants no.1 to 6 of
themselves being present at the spot of incident. It was thus
contended that no error was committed by the trial Court for
coming to the conclusion of the guilt of the appellants being
established in commission of the offences for which the appellants
were convicted and sentenced by the trial Court. It was submitted
that there being no merits in the appeal, the same be dismissed.
10. Thoughtful considerations were given to the submissions
advanced by both the sides and the judgment assailed as well as the
record of the case was carefully considered for ascertaining merits
of the submissions canvassed.
11. Now
considering the aspect of prosecution having
established Balasaheb having met homicidal death and voluntarily
hurt by means of dangerous weapon was caused to PW1, PW2, PW3
and Manoj, the prosecution had relied upon the post mortem notes
Exh. 65 regarding post mortem examination of the corpse of
Balasaheb and the evidence of doctors PW5, PW6, PW7 who had
treated victims and given certificates regarding the injuries
sustained and so also upon the opinion expressed by them. The
appellants at the trial admitted the post mortem notes relied by the
prosecution. The trial Court duly took into consideration all the said
evidence during the discussion made in paragraph no.6 of the
judgment appealed while considering the aforesaid questions.
12. The reference to the post mortem notes reveals that
during the post mortem performed in between 11 and 12 noon on
15th August, 2001, the doctors had found following 5 external
injuries i.e. :
i) sutured wound extending from left parietal region to left
temporal region.
ii) Sutured wound extending from right parietal region to right
temporal region. Bleeding ++ through wound.
iii) Sutured wound over both paraumbilical region transverse in
shape both sides 8 c.m. in size.
iv) Tracheostomy wound present.
v) Multiple contusions small in size present over upper back region
reddish black in colour.
Both temporal bone flaps removed and brain matter exposed.
Flaps buried in sub cutaneous tissue of abdomen para umbilical
region.
13. The post mortem notes further reveals that during the
internal examination intracranial haemorrhage with brain stem
haematoma was found. It reveals the cause of death as "death
due to cardio respiratory failure due to intracranial
haemorrhage due to head injury".
14. The scrutiny of the evidence of PW5 reveals that while on
duty as a Medical Officer at Silver Jubilee Hospital at Baramati on
31.7.2001 at about 10 p.m. she had an occasion to come across and
had examined and treated Balasaheb brought in unconscious
condition and accompanied by injured PW1, PW2, PW3 and Manoj
Kashinath Dhaigude. PW5 deposed of having noticed on the
person of Balasaheb the multiple CLW over parietal region of size
6 cm. x 0.5 cm with connecting injury of same size irregular in
shape. PW5 deposed that said injury was grievous and caused
within one hour by hard object. PW5 deposed that having suspected
fracture , she has transferred the said patient to Sasoon Hospital.
PW5 opined that said injury could be caused with the axe with blunt
side of axe, coming into contact with head and Exh.52 is certificate
issued by her regarding the said injury.
15. The evidence of PW5 reveals that PW1 had given history
of assault at 9 p.m. and during examination she had noticed CLW
over his forehead 10 cm x 0.5 cm x 0.5 cm. verticle in shape and
caused with hard object within one hour, swelling on his
left forearm. It reveals that he was admitted in the hospital for 8
days. It reveals that Exh.52 is certificate issued by her regarding the
said injuries and contents thereof being correct.
15.1. Her evidence further reveals that on PW2 she had noticed
i) CLW over left brow 2 cm x 0.5 cm verticle in shape, ii) Small
abrasion over left cheek 1.05 cm x 5 cm., iii) Small abrasion over
right foot small size, iv) Abrasion over left shoulder and v) Incised
wound over right forehead 3cm x 0.05 cm x 0.05 cm. with X-ray
revealing fracture caused to left shoulder and Maxila. It reveals
that all the injuries except fracture of maxila were simple and all of
them were caused within 1 hour with hard object such as iron bar
or sticks. It reveals that Exh.54 is the certificate issued by her
regarding the said injuries and contents thereof being correct.
15.2. Her evidence further reveals that on PW3 she had
noticed i) Pain and swelling over left forearm, ii) Abrasion over
left ring finger, iii) Pain and swelling over right forearm, iv)
Abrasion over right forearm, v) Pain over left side chest (no
external injury) and vi) Pain and CLW over right side of forehead 2
cm x 0.5 cm. It reveals that the age of said injuries was within 1
hour and all injuries were simple in nature and could be caused with
the help of stick. It reveals that PW3 was admitted in the hospital
for 8 days. It reveals that Exh.53 is certificate issued by her
regarding the said injuries and contents thereof being correct.
15.3. Her evidence further reveals that on Manoj Kashinath
Dhaigude she had noticed i) CLW over left parietal region 4 cm x
0.5 cm verticle in shape, ii) Abrasion over left shoulder 4 cm x 3
cm in shape. It reveals that the age of said injuries was within 1
hour and all injuries were simple in nature and could be caused with
the help of stick. It reveals that Exh.55 is certificate issued by her
regarding the said injuries and contents thereof being correct.
16. The close scrutiny of the evidence of PW5 does not reveal
any significant material was elicited during the cross-examination
except bringing on record that injuries caused to PW1 were possible
due to dash with a tree or wall or pole and injuries caused to
Balasaheb were possible due to stone or fall from the motorcycle.
Similarly it was brought on the record that injury caused to
Balasaheb was of irregular shape, the same can be caused by a
stone or by the part of motorcycle having irregular shape and the
injury caused by blunt side of muddemal Article axe could cause
injury with regular shape. Similarly it was also brought on the
record that injuries caused to PW3 and Manoj were possible by fall
on stony and rocky ground etc. It was also brought on record that it
was not necessary to admit PW3 in the hospital for 8 days as the
injuries sustained by him were simple.
17. It will not be out of place to state that during the cross-
examination of PW5 , it was also elicited that she had examined
appellant no.1 and appellant no.5 and about injuries noticed by her
on their person etc. The defence having again examined PW5 as
defence witness no.1 for the said purpose and said evidence being
not relevant for the present discussion , the same is narrated at
appropriate place.
18. Thus after close scrutiny of the evidence of PW5, we do
not find any reason for not accepting her evidence which is found
duly corroborated by the medical certificates given by her. Needless
to add that her evidence establishes the relevant matters deposed
by her i.e. serious multiple injuries sustained by Balasaheb on head
due to hard object such as axe at about one hour prior to her
examination; injuries/simple hurt by PW1 on head and left forearm
, possible by hard object like stick, serious injury/ grievous hurt by
PW2 on face and head possible by iron bar or stick; simple injury/
hurt by PW3 on the left arm, right arm, left side of chest possible by
stick and simple injury/hurt by Manoj on head and left shoulder
possible by stick and all the said injuries being caused within one
hour before the examination i.e. at about 8' O clock.
19. The scrutiny of the evidence of PW6 reveals that while
attached to Nimbalkar Hospital on 2nd August, 2001 , he had
examined PW2 referred by Dr. Kokne of Silver Jubilee Hospital along
with X-ray for opinion and found that he had sustained fracture of
nosal bone and fracture of maxilla and in his opinion, the said injury
suffered by PW2 were possible by blow with stick. After close
scrutiny, we do not find the core of his such testimony was shaken in
any manner as cross-examination does not reveal any other facet
was brought on the record except that such injuries were possible
by fall on rocky ground or dash on wall or pole and projecting part
coming into the contact with nose and maxilla.
20. The close scrutiny of the evidence of PW7 reveals that on
31st July, 2001 while attached with Giriraj Hospital at Baramati,
deceased Balasaheb was admitted at about 11.20 p.m. and then he
was unconscious and blood was oozing from his nose. It reveals that
there were signs of aspiration in both the lungs, right pupil was
sluggish and left normal in reacting to the light. It reveals that he
noticed i) sutured fronto parietal region to the extent of 8 cm with
signs of formation of haematoma in wound, ii) also haematoma at
the base of the left thumb and palmer aspect and iii) abrasions on
left arm on the person of Balasaheb. The evidence of PW7 further
reveals that during the scan he found huge right tempo parietal
extradural haematomaig compressing right cerebral hemisphere. He
also noticed fracture of right temporal bone and contusion on left
temparo parietal bone area. It reveals that after repeated scans and
noticing the damage caused as disclosed therein, the patient was
operated. However, the said patient passed away on 15th August,
2001. According to PW7 , he died due to the head injury and such
injuries could be caused with the help of blunt side of the axe. PW7
vouched regarding the correctness of the certificate Exh.60 to such
effect issued by him. Even after close scrutiny, we do not find any
reason for not accepting the evidence of PW7,as except the injuries
other than on head were simple, history was given by person
accompanying the patient, himself had not ascertained dimensions
of the injuries as they were sutured and injuries were possible by
sustaining a fall on motorcycle, no other thing was brought on the
record for not accepting the evidence of PW7.
21. The matters from the post mortem notes and particularly
cause of death stated therein is duly corroborated by the evidence
of PW5 and PW7 who had examined and treated him earlier. The
said evidence duly established that death of Balasaheb was due to
the receipt of head injury. The evidence of PW5 and PW7 also
reveals that he had received the injury due to assault. The said
evidence also signifies that during the said assault he had also
sustained injuries on chest and so also upon his back. It also
signifies that head injury received by him was possible by blunt side
of axe/stick/iron bar.ig Similarly the evidence of PW5 considered in
proper perspective also denotes thatthe other victims examined by
her had told of having received injuries in incident of assault and in
her opinion in all probability they had sustained said injuries in
between 8 and 9 p.m. . Without repeating the injuries noticed by
PW5, it can be safely said that the said injuries indicate that during
the said incident PW1 was attacked on his forehead and on left
forearm; PW3 on left forearm, left ring finger, right forearm, on
chest and forehead; Manoj Kashinath Dhaigude on left side of his
head and on shoulder with a hard object like a stick. Similarly the
relevant part of the evidence of PW5 and so also that of PW6
reveals that alike PW1, PW3 and Manoj; PW2 had in an incident of
assault occurred in between 8 to 9 p.m. had sustained grievous
hurt to his nose and the same was possible due to being assaulted
by means of iron bar/stick.
22. As narrated earlier, the aforesaid medical evidence also
denotes the doctors having admitted that injuries to Balasaheb and
the other victim were possible by a fall from motorcycle and to
others due to falling on ground or stony substance etc. The
appellants had taken the defence that Balasaheb after the incident
while taking to the doctor on motorcycle to Baramati met with an
accident and received the head injury which ultimately resulted in
his death. We find that the trial Court after taking into consideration
the fact that no material in support of the said defence had surfaced
on record and on the contrary the unshattered
ig evidence of PW1
Kashinath that he had taken injured for treatment by bringing the
jeep from his home, has discarded the said defence and came to the
conclusion that Balasaheb met homicidal death, PW2 received the
grievous hurt and PW1, PW3 and Manoj hurt. In light of the matters
discussed earlier, we are unable to find any fault with such findings
arrived or the reasoning for the same given in paragraph no.6 of the
judgment.
23. Having concluded aforesaid ,now it is necessary to
ascertain whether as claimed by the prosecution the appellant
were members of unlawful assembly and in prosecution of the
common object of the said unlawful assembly , they or some of them
had caused said homicidal death of Balasaheb and grievous hurt to
PW2 and hurt to PW1, PW3, Manoj in view of such a conclusion
arrived by the trial Court after taking into consideration the evidence
of witnesses for the incident i.e. PW1 to PW4. Hence it will be
necessary to assess the account of an incident as unfolded by them.
24. Before taking of the said process, it will be necessary to
consider one of the submissions advanced by the learned counsel for
the appellants that evidence of said witnesses does not inspire
confidence in view of themselves being interested witnesses due to
being closely related with each other and the prosecution having
deliberately not examined any of the independent witnesses i.e. the
persons residing in the houses in the vicinity of scene of offence. It
was urged that on the said count the evidence of the said witnesses
is liable to be discarded. We find it difficult to accept the said
submission as the prosecution evidence amongst other denotes that
all of them were involved in the incident and it has not surfaced on
the record that any other person was present at the time of the
incident to witness the incident. Similarly we are also unable to
accept said submissions because it is settled legal position that
evidence of any witness is not liable to be discarded merely on the
count of himself being the close relative of the victims because at
the most the said facet would require close scrutiny of his evidence.
Hence we are unable to find any fault with similar reasoning given
by the trial Court in para no.12 of the judgment for not accepting
such submission.
25. Upon the similar line, the learned counsel also urged that
it has surfaced during the evidence that the cross-complaint with
regard to the incident occurred was lodged by appellants and the
counter case was duly registered there on. However the trial Court
ignored the said aspect and so also the fact of existence of injuries
on the person of appellant Nos. 1, 2, 3, 4 & 5 as established
through the evidence of DW1 and DW2. It was urged that said
factors warranted rejection of the evidence of the said four
witnesses PW1 to PW4 and particularly in absence of the prosecution
having adduced the evidence of any independent witness. It was
tried to canvass that registration of a counter case regarding an
incident prima facie impaired the evidence of the said witnesses
and particularly in absence of the evidence of any independent
witness supporting them. It was urged that only in the event of such
evidence being adduced at the trial, the Court would have been in
position to ascertain as to who were the aggressors and who were
the victims. It was urged that such evidence being not placed
before the trial Court, the trial court ought to have discarded the
evidence of the said interested witnesses or at least should have
given benefit of doubt to the appellants in view of lack of proper
evidence for determining the said vital aspect.
26. We are unable to accept the said submission as it is
settled legal position that mere registration of counter case by ipso
facto would not impair the evidence of any witness in either of the
case. The same is obvious as the legal position pertaining to the
appreciation of the evidence in such cases is settled to the effect
that though both the cases are required to be tried by the same
Judge, while appreciating the evidence in each of the case, it is not
permissible for him to take into account the evidence in another
case and he is required to appreciate the evidence in either case de
hors the same upon the settled principles of appreciation of the
evidence. Though it is true that in such type of cases the learned
Judge trying the counter cases may come to the conclusion that
either of a party was an aggressor, or he may also come to the
conclusion that none of them was aggressor and a free fight had
ensued in between the parties and in such a contingency it is open
for him to determine the liability of each of the party independently
in respective case. Having regard to the same, as observed earlier
we reiterate that again the said facet would have required the trial
Court only to closely scrutinise the evidence but not to reject the
evidence on the count as canvassed.
27. Hence now closely scrutinising evidence of the said
witnesses and in the said process firstly considering the evidence of
first informant PW1, we find that PW1 during the earlier part of his
evidence has unfolded of having given the lands for Anganwadi and
Anganwadi was constructed upon the said land with tin roof and his
house being was at a distance of 1000 to 1500 ft. from it and the
appellants were also residing within a distance of 500 ft. from
Anganwadi. PW1 during further part of his deposition, deposed
about some minor quarrel having occurred 2-3 months prior to the
incident on the count of Bund, in between his boys and the
appellants. We find that the trial court ignored the said aspect of
the evidence of the PW1 on the count of the same being in the
nature of the omission. We are unable to accept such a reasoning
because evidence of PW1 discloses that the said event had occurred
about 2-3 months prior to the main incident which had occurred on
31st July, 2001. It is indeed true that during the cross-examination
such a facet being in the nature of omission was brought on the
record. However, having due regard to the provisions contained in
an explanation given in Section 162 of Cr.P.C., it is difficult to accept
that the same was liable to be discarded and/or ignored as observed
by the trial Court. The same is apparent as first information report
being not expected to be encyclopedia containing wealth of all the
details and said facet deposed by PW1 being not at all in the nature
of an omission amounting to contradiction for viewing it as a
deliberate improvement made by PW1 at the trial. We further add
that the said facet of evidence was not liable to be discarded itself
denotes of existence of rivalry/animosity in between both the
parties.
28. The further deposition of PW1 discloses the reason which
made Balasaheb and PW2 to go to Anganwadi i.e. while at the
house having heard sound of throwing of stones on the tin roof of
Anganwadi. His evidence discloses that within 10 to 15 minutes
along with his nephew Harishchandra and son Manoj, he had been to
Anganwadi. Further part of his evidence reveals that the appellants
were then sitting near Anganwadi and having questioned them
about their such a behaviour and the reply given by the appellants
and thereafter the appellants started abusing them.
29. In further part of deposition, PW1 had given the account
of incident to the effect:
"A-1 gave blow of axe on the head of deceased.
A3 gave blow with iron bar to deceased. A4
gave blow with iron bar on the head of
deceased. A2 gave stick blow on the head of
PW1. The other appellants beat PW2. A7 pelted
stone which hit nose of PW2. A2 gave blow of
stick on the forehead of PW2. A4 gave blow
with the iron bar on the nose of PW2."
PW1 deposed that while incident was in progress, his brother PW3
came by motorcycle from Baramati and noticing the incident, he
requested the appellants not to beat, but appellants also beat PW3.
His son Manoj intervened. Manoj received injury on his head by the
blow given by A2. The other appellants beat his nephew
Harishchandra. He received covert injury.
30. PW1 thereafter deposed regarding the steps taken by
them after deceased has fell down due to receipt of injuries i.e.
himself having been to the house, bringing the jeep and taking
injured Balasaheb, PW2, PW3, Harishchandra and Manoj to Silver
Jubilee Hospital at Baramati. It reveals the reason because of which
Balasaheb was taken to Bhoite Hospital at Baramati for medical
treatment i.e. medical advice and himself, PW2, PW3, Harishchandra
and Manoj having remained at Silver Jubilee Hospital. About the
treatment given amongst other, he deposed of 12-13 stitches being
given for injury sustained by him, having remained at the hospital
for 8 to 10 days, PW2 having received injury on forehead, nose and
the same required to be stitched, right finger of PW3 having
fractured, Manoj having received injury on the head and the same
was also stitched and Harishchandra having received covert injury.
It also discloses deceased undergoing two surgical operations for
head injury and having passed away on 15.8.2001. It also discloses
his complaint Exh.35 was recorded at the hospital and Baniyan
Article 10 was on his person at the time of incident and Towel Article
11 was used by him for covering the injury.
31. Now close scrutiny of the evidence of PW1 in light of
answers given in cross-examination does not reveal his core of
testimony was shattered in any manner. The perusal reveals an
attempt made in cross-examination to elicit the topography of the
place of incident for bringing on the record that there could have
been other independent witnesses for the incident occurred.
However hardly anything has cropped on the record for coming to
the conclusion that any such witness was present at the time of
incident. The same is the case regarding an attempt made to
establish the theory of deceased Balasaheb having received
compensation in view of having received the head injury resulting in
his death due to the accident. Similarly cross-examination does not
reveal any admission elicited in favour of the appellant for coming to
the conclusion that PW1 or his party or Balasaheb were the
aggressors and/or the incident had occurred due to the act of assault
commenced by them. Thus after close scrutiny, we do not find
anything elicited in the cross-examination either supporting the
defence taken by the appellants or shattering the substratum of the
prosecution case of the incident having occurred due to Balasaheb
and Pravin having been to Anganwadi and thereafter PW1 along with
Harishchandra and manoj and themselves having questioned the
appellants, they have
ig started assaulting and had assaulted
Balasaheb, Pravin, PW1, PW3 as deposed by PW1. The scrutiny
reveals the conduct of PW1 being natural after the incident. It
negates the defence theory of Balasaheb having sustained the injury
in an accident occurred while he was taken on motorcycle to the
hospital, from the express recital that injured were taken for a
treatment by the jeep brought by PW1. The cross-examination fails
to establish any improvement much a less deliberate significant
improvement made by PW1 during his deposition with version in his
first information report recorded by the Police while he was taking
treatment at Silver Jubilee Hospital. Thus we do not find any reason
for not accepting the evidence of PW1 and so also any fault on part
of the trial Court in accepting and relying upon his evidence, which
is duly corroborated by the first information report lodged by him
and the medical evidence.
32. Now close scrutiny of the evidence of PW2 Pravin who is
son of the deceased Balasaheb reveals, his evidence being on the
same lines as that of PW1 i.e. the reason because of which along
with father he had been to the Anganwadi, upon his father
questioning the appellants regarding pelting of the stones, accused
no.1, accused no.2, accused no.6 respectively having brought axe,
and sticks from their houses and accused no.4 and accused no.3
having brought iron rod, while appellant no.8 , appellant no.7 and
appellant no.9 having brought the stones. PW2 in the material part
of his evidence regarding the assault has deposed:
"A1 gave a blow with axe by sharp edged on
the head of his father, appellant no.4 and
appellant no.2 gave a blow with stick on his
nose, appellant no.7 gave a blow by pelting
stone at his face which hit at his house from
left side. PW1 and his sons Manoj and
Harishchandra came for intervening. They
were also assaulted and beaten with the help
of iron bar, stick and stone by the appellants.
As the incident was in progress, his uncle PW3
came from Baramati on motorcycle. He was
assaulted and beaten by the appellants. The
appellants threatened that they would kill us if
we play some mischief with them."
In further part of his deposition, PW2 gave the similar account as
given by PW1 regarding the further events of PW1 taking them by a
jeep to Silver Jubilee Hospital at Baramati, at the said place they
were advised to take his father to another hospital and accordingly
his father Balasaheb was taken to Giriraj Hospital at Baramati,
himself having received injuries at two places on his forehead and
they were stitched. There was fracture to his nose. PW3 had
received injury on his head and hand. Manoj had received injuries
on his hand and the same were stitched. Harishchandra having
received covert injury, himself, PW3, Manoj and Harishchandra were
treated as indoor patient for 8 days, his father having passed away
on 15th August, 2001 and about the articles 12 and 13 being clothes
on his person at the time of the incident and lateron seized by Police
etc.
33. During the cross-examination of PW2 admitted about the
counter case pending against them, his statement being recorded on
the next day of the incident by the Police
ig while he was in the
hospital, himself having told the Police of there was a fight between
them and the appellants. He also admitted of having not told the
Police of the appellants having brought the weapons from their
house. He denied of themselves having been to the place of
incident armed with the weapons for teaching them a lesson or his
father then being drunk. He also denied the suggestion given to him
on the line of defence taken by the appellants regarding the incident
and so also that while he along with his father was going to
Baramati on motorcycle, his father having sustained head injury due
to the slip of motorcycle. However, he admitted of having not told
the Police of appellant no.1 having given blow with the sharp edge of
the axe. Thus after scrutiny, except the fact of blow being not given
from the sharp edge of the axe, his other evidence including that of
giving of blow by an axe has remained unshattered. We find that his
evidence is duly corroborated by the medical evidence discussed
earlier regarding injuries sustained by him and so also the other
persons, regarding the manner of assault and so also the place at
which the injury was caused to PW1, PW2, Balasaheb and Manoj.
We also find that his evidence denotes that PW1 and PW3 had been
to the spot after the main incident had commenced and PW4 when
the incident was almost over. So also we find that the evidence of
PW1 and PW2 corroborates the evidence of each other. We also do
not find any infirmities in the evidence of each of the witness either
destroying his evidence or the evidence of the other witness.Thus
we are unable to find any fault with the trial court for accepting
evidence of PW1 AND PW2. Needless to add that theirevidence
within itself establishes the fact deposed by them.
34. The perusal of the evidence of PW3 reveals the matters in
consonance as deposed by PW1 and PW2 and the details regarding
the reason for which he had been to Baramati and after returning
from Baramati from motorcycle, having observed the incident in
progress at Anganwadi. His evidence discloses the presence of the
appellants and of his brother PW1 and nephew PW2, Manoj and
Harishchandra. It discloses that in spite of his request to the
appellants not to beat , they continued the beating and also having
beaten him. PW3 in his further part of incident also deposed that
then he had seen Balasaheb lying on the ground, bleeding on his
face and himself being unconscious and the steps thereafter taken
for a medical treatment by taking the injured to Silver Jubilee
Hospital at Baramati and thereafter Balasaheb being shifted to the
hospital of Dr. Bhoite. He deposed of having received injuries on left
hand and head; PW1 on head and hand; Manoj on head;
Harishchandra on back and OW2 on head and nose. He also
deposed of Balasaheb having died on 15th and Articles 14 and 15
being clothes worn by him at the time of incident and the same later
on were seized by Police under panchanama.
35. Upon close scrutiny of the evidence of PW3, we find that
he denied of appellant no.1 having received bleeding injury on head
and so also appellants 1 to 6 having injuries on their person with
some of them bleeding injuries. He denied that within two minutes
after himself reaching the spot, injured were shifted to the hospital
and consequently the defence theory of his all probability having
reached late and not having witnessed the incident. He also denied
that all persons from Vasti having gathered and reached the scene
of offence. The material brought in the cross-examination by way of
his conduct of having not asked any of the injured regarding who
was the assailant or to any other persons gathered at the spot on
the contrary implies of himself having witnessed the incident. He
duly denied all suggestions given to him on the line upon the
defence of the appellants. He also denied of having received
injuries due to having come in contact with electric pole during
scuffle and having received injuries. Thus after perusal of the
evidence of PW3, we do not find any reason for discarding the same
and consequently any fault on the part of the trial court for
accepting the matters deposed by him.
36. The evidence of PW4 reveals that deceased was his
paternal uncle and on the relevant day in the evening he had been
to his house. It discloses that after hearing the sound of pelting of
stones, Balasaheb and PW2 had been to Anganwadi to ascertain the
happenings and within 5 to 10 minutes, he had heard shouts and
thereafter rushed to the said spot along with one Rajkumar Deokate
and found Balasaheb lying on the spot. His daughter Poonam was
also lying on the spot and the appellants were present at the spot.
He deposed of PW3 requesting the appellants not to beat himself
and so also Rajkumar Deokate but the appellants threatened them.
He deposed of PW2 having injury on his face towards the left side of
his nose, PW1 on head. he deposed of having taken Poonam to her
home and along with Rajkumar having kept injured PW1, Manoj,
Harishchandra, PW2, Balasaheb and PW3 in the jeep and all of them
were taken to the Silver Jubilee Hospital and from the said place
serious Balasaheb to the hospital of Dr. Bhoite and Balasaheb having
passed away after 15 days.
37. In the cross-examination of PW4, it was brought on the
record that he has not told the Police about the incident on 1st of
August when they had been to the Silver Jubilee Hospital. It was
also brought on the record that on the day of incident, he had not
accompanied Balasaheb and PW2 when they had rushed towards
Anganwadi, nor even thereafter for about 4 minutes or even after
hearing exchange of the words. He was unable to say as to who had
brought the jeep on the spot but further replied that it was either
PW1 or PW3. He admitted of having not told to the Police of along
with Rajkumar having kept injured in the jeep. He denied of
appellants no. 2 to 6 having injuries on their person or accused nos.
7 to 9 being not present at the spot. However, he admitted that
when he had reached the spot, the fight was already over. He
denied of not being to the house of Balasaheb on the relevant day
and having deposed falsely due to close relations with injured and
Balasaheb.
38. Thus after scrutiny of the evidence of PW4, we are unable
to accept the criticism that he is got up witness or his conduct is not
consistent giving an impression that he was not at all present at the
relevant time on the spot. We are unable to find any fault with the
conduct of PW4 of not rushing to the spot because he was the
resident of another village and having been to the said house for
meeting his relative and furthermore Balasaheb had been to the
place of incident along with his son PW2. The criticism advanced
does not survive because the evidence of PW4 reveals that after
some time he had been to the spot. However, we do accept the
criticism advanced that he is not material witness regarding the
incident occurred because of the admission given by PW4 that the
incident was over when he has reached the spot. However, we find
that his evidence does not contain an element for discarding the
same altogether on the count of himself being got up witness as no
material for coming to such a conclusion has surfaced from the
cross-examination except the isolated feature of the daughter of
Balasaheb also being on the spot at same point of time and PW4
having seen her at the spot. We are unable to discard his evidence
as we do not find that either in the evidence of PW4 or in the
evidence of any other witnesses a contrary facet has been brought
on the record that Poonam never had been to the spot of incident.
Thus the evidence of PW4 to some extent also corroborates the
evidence of the earlier witnesses and particularly regarding the
presence of appellants at the said spot.
39. Having considered the oral account of incident unfolded
by the prosecution through PW1 to PW3 who were involved in the
incident and corroborative evidence of PW4 who had reached the
spot soon after the incident and the medical evidence regarding
effect of the assault being in conformity with the account of incident
unfolded by the said witnesses, now considering the findings arrived
by the trial court on the said basis, we find it extremely difficult to
accept the conclusion arrived by the trial court for the reasons
recorded in paragraph no.13 that all the appellants were the
members of unlawful assembly and were armed with the weapons
and the murder of Balasaheb was committed in prosecution of
common object of unlawful assembly and as such each of them was
liable for the said murder and so also each of them having
committed the offence under Section 148 Section 149 of Indian
Penal Code. As a matter of fact, we find that the trial court arrived
at such a conclusion and particularly about the existence of unlawful
assembly without properly assessing the evidence surfaced and
upon the fanciful reasoning based upon the assumptions.
40. We are of such a considered opinion as the oral account
of incident as disclosed by PW1, PW2 and PW4 reveals that on the
said day Balasaheb and PW2 had been to Anganwadi due to hearing
of pelting of stones on the tin shed and the incident has occured
after appellants present at the said spot were questioned by them.
Hardly any dispute can be entertained about the aforesaid crude
facet which is duly established by the evidence of said three
witnesses. The same duly supports submissions canvassed by the
learned counsel for the appellants that in event of Balasaheb and
PW2 having not been to the said spot, there was no reason for
occurring of any incident. The learned counsel, therefore, was very
much right in submitting that hence it cannot be gainsaid that the
appellants forming an unlawful assembly with a common object of
murdering Balasaheb, were lying in wait at Anganwadi in
anticipation of Balasaheb coming at the said place. He was further
right in submitting that even assuming that due to pelting of stones
some persons from house of Balasaheb might have been to the
said place to ascertain the happenings, still it cannot be gainsaid
that that act of pelting stones was committed by the appellants for
provoking Balasaheb and the others, and for coming to the said spot
for committing the murder of Balasaheb and assaulting the other.
We also find substance in the submissions that prosecution evidence
miserably fails to establish that the said pelting of stone was
effected by the appellants.
41. Since on the basis of the evidence of PW2 who had been
firstly to the spot along with Balasaheb, it is established that after
questioning as deposed by him appellant nos. 1 to 4 and 6 to 9 had
brought the weapons and the said facet having remained
unshattered during the cross-examination, we find it difficult to
accept the reasoning given by the trial Court that the appellants
must have kept the arms near the Anganwadi with intention of using
the same in event of Balasaheb coming to Anganwadi. Needless to
add that the said observation is not a logical inference drawn on the
basis of evidence and is merely surmise. The trial court on the basis
of the said factors/reasoning has come to the conclusion of the
appellants having formed unlawful assembly. Since the same is not
based upon evidence and/or logical inference arising from the
evidence, cannot be legally sustained, we are unable to accept the
same.
42. Furthermore we are unable to accept the same after
taking into consideration the account of incident as disclosed by the
evidence of PW1 , PW2 and PW3. At the cost of repetition, it can be
said that out of the said witnesses PW2 having firstly reached the
spot along with Balasaheb, his evidence would be of immense
importance to ascertain whether there existed an unlawful assembly
as concluded by the trial court. Without reiterating the evidence of
PW2 already recited by us hereinabove, it can be safely said that his
evidence does not indicate that the incident of assault had
commenced moment along with Balasaheb he had been to the said
spot. Occurring of such an event might have justified drawing the
conclusion of existence of unlawful assembly. However, since his
evidence reveals that thereafter Balasaheb questioning the
appellants about pelting of stones on the roof, exchange of words
had occurred in between Balasaheb and the appellants and
thereafter the appellants had brought the weapons from the house
militates against the submission canvassed of existence of unlawful
assembly with members armed with the weapons for the purposes
of murdering Balasaheb and assaulting the other witnesses as
erroneously concluded by the trial Court.
43. Mr. Khamkar, learned counsel for the appellants by
drawing attention to the evidence of DW1 and DW2 regarding the
presence of the injuries on the person of the appellant nos.1 and 5
noticed by DW1 on 2nd of August, 2011 at 12.15 p.m. and on the
person of appellants no. 2,3 and 4 on 1st of August, 2001, urged that
presence of the said injuries are indicative of the occurrence of free
fight between the parties at the time of incident. It was canvassed
that by and large there being an attempt on part of the prosecution
witnesses to suppress the said injuries or at least the prosecution
not explaining the same leads to the conclusion of the prosecution
witnesses having suppressed genesis of the incident and having not
told the truth, the trial court ought to have discarded their evidence
and ought to have acquitted the appellants due to the lack of the
truthful evidence on the record.
44.
Though the aforesaid submission apparently appears to be
attractive after considering the evidence of the said witnesses, we
do not find any merit in the said submission. Such a conclusion is
obvious as after perusal of the evidence of DW1, we find that though
examined as a prosecution witness PW5 , no effort was then made to
bring the relevant material on the record which was brought lateron
by examining her as DW1. Apart from the same, her evidence
reveals that she had examined them on 2nd of August, 2001 at
about 12.15 p.m. i.e. much after the incident. She also opined that
the injuries were simple. Even the said facet is clear after
considering the nature of injuries described by her. Furthermore her
evidence also discloses that appellant no.1 had already taken a
treatment from the other doctor, both of them had not brought any
Police yadi. Furthermore she deposed that though they had given
history of assault, they had not told the names of the assailants.
Similarly the perusal of evidence of DW2 reveals that 7 injuries
noticed by him on the person of appellant no.3 were the abrasions
and only one was contusion and all of them were simple injuries.
Even the case qua the injuries of appellant no.4 is no different as out
of two injuries, one is abrasion, while the second is in the nature of
complaint made of a pain without any external injury or swelling.
Similarly the case qua the injuries of appellant no.2 is also not
different i.e. swelling on right wrist, other abrasion and third one
complaint of pain without any symptoms. Without embarking upon
detail dilation about the said evidence, it can be safely said that
even the said evidence fails to make out a case of any serious injury
was sustained by said appellants no. 1,2,3,4 and 5.
45. Now considering the nature of the said injuries sustained
by the said appellants, the incident having lasted for 4 to 5 minutes
as surfaced during the evidence of PW2, the nature of the incident,
the same having occurred at about 8.30 p.m. during night time,
possibility of presence of such injuries having gone unnoticed by the
witnesses, cannot be ruled out. Needless to say, hence it is difficult
to accept that having regard to the nature of injuries sustained,
ignorance of such minor injuries claimed by the prosecution
witnesses can be branded as an deliberate attempt made by them
to suppress genesis of the incident.Since it is settled legal position
that in event of any injuries sustained by the accused persons
involved in an incident being a minor or superficial as in the present
case, non explanation of the same will not warrant drawing of an
adverse inference against the prosecution, we do not find the
substance in the submission canvassed by the learned counsel by
pointing the aforesaid evidence. Similarly no admission being
elicited during the cross-examination of the prosecution witnesses
of occurrence of free fight or establishing the said facet, we also do
not find any substance in such a submission canvassed. Similarly
we also do not find any substance in the submission canvassed that
registration of a counter case by the Police being suggestive of
occurrence of a free fight in between the parties or at least an
attempt on part of prosecution witnesses to assault the party of the
appellants. It is difficult to accept the said submission after having
due regard to the attitude presently developed by the investigating
agency regarding the counter complaint of rather than themselves
taking the decision in the matter, referring the same to the Court
of law. We also add that in the said context we do not find anything
brought on the record during the cross-examination of the
investigating officer for supporting the theory attempted to be
canvassed.
46. Now continuing the process of determining the existence
of the unlawful assembly, if any, as alleged and discarding the
submission for not accepting the evidence of PW1 to PW4, still after
perusal of their evidence we are unable to find any evidence
surfaced denoting existence of unlawful assembly. We are of such a
considered opinion as account of assault given by PW2 and PW1 who
had been to the spot of incident some time after Balasaheb and PW2
and so also that of PW3 who had arrived at the spot at the end of the
incident and PW4 practically after the incident was over does not
reveal any other facet indicating existence of an unlawful assembly
as claimed by the prosecution. The same is obvious as the evidence
failed to disclose any alarm/call was given by any of the appellant
during the incident either from commencement or uptill conclusion
to companion accused for commission of act denoting existence of
unlawful assembly. ig Thus in our humble opinion the prosecution
evidence having miserably failed to establish existence of unlawful
assembly , such a conclusion erroneously arrived by the trial Court
cannot be sustained.
47. Now considering the reason behind Balasaheb meeting
with homicidal death i.e. injuries sustained by him and due to head
injury sustained by him and after careful perusal of the evidence of
PW1 , PW2 and even PW3 and PW4, we find it difficult to attribute
any role played by the appellants no.2 and 5 to 9 in causing the
head injury to Balasaheb. The same is apparent as none of the
witnesses had attributed any role to any of the said appellant nor
there exists any evidence inferring any act committed by them for
causing the said injuries or even assaulting Balasaheb. We may add
that the incident having occurred in melee for fastening the liability,
the cogent evidence being necessary regarding the act committed
by individual appellant, the generalize statement of an assault
without pinpointing the accused, committing such act being not
sufficient, such a conclusion is inevitable. Having regard to the
same and since conclusion is arrived of the prosecution failure to
prove existence of unlawful assembly with the object as claimed by
the prosecution, the liability fastened on the said appellants no.2
and 5 to 9 for the murder of Balasaheb erroneously by the trial
Court cannot be legally sustained and they would be required to
be acquitted from the charge of commission of such offence for
which they were held guilty and sentenced by the trial Court.
Needless to add, sentence imposed upon them on the said count will
be also required to be quashed and set aside.
48. Now considering the medical evidence, it is amply clear
that Balasaheb had died due to head injury sustained by him. PW5
who had firstly examined him and noted his injuries, has deposed
that the said injury could be caused with hard object within 1 hour.
She has also deposed that the same was possible with the help of
axe with the blunt side coming into contact with the head. The
account of incident given by PW1 that appellant no.1 had given axe
blow on the head of Balasaheb has remained unshattered. His
evidence that appellant no.3 had given blow with iron bar on
Balasaheb and so also accused no.4 gave a blow with iron bar on the
head of deceased had also remained unshattered. All the said
evidence in turn reveals appellants no. 1,3 and 4 having given
blows of deadly weapon upon Balasaheb i.e. appellants no.1 and 4
on his head. All the said evidence denotes that all the said
appellants while making such assault were acting in furtherance of
their common concrete to cause his death. Needless to add that
considering the manner in which the said acts were committed
would lead to no other inference.
49. Now support/corroboration to the evidence of PW1 in
addition to the medical evidence already referred hereinabove is
also found from the evidence of PW2 to the effect that the appellant
no.1 had given axe blow by sharp edge on the head of his father.
The learned counsel for the appellants urged that the evidence of
PW2 does not disclose the appellants no.3 and 4 having given blow
of iron bar to Balasaheb and as such there being no corroboration to
such a claim staked by PW1, they are entitled for the benefit. After
considering the evidence of PW2 in proper perspective, we are
unable to accept the said submission. The evidence of PW2 about
which we have made the reference earlier in terms reveals that the
appellant no.3 and appellant no.4 had brought the iron bar. Thus
corroboration to such effect to the evidence of PW1 is found from his
evidence. Furthermore, his evidence considered in proper
perspective reveals that after the blow of axe was given on the
head of his father, appellant no.4 and appellant no.2 had given
blow with stick on his nose while appellant no.7 had pelted stone on
his face. In further part it reveals that the same has caused injury
on his face and medical evidence denotes he had sustained the
fracture of nosal bone and maxilla. On backdrop of the said
situation and sustaining of fracture would have been an immediate
act, it is difficult that then he could have witnessed the further acts
of assault committed qua his father. In view of the same, merely
because of the absence of such evidence cannot detract evidentiary
value of the claim staked by PW1 nor it can be said that the
appellants no.3 and 4 would be entitled for the benefit as urged.
Needless to add that the evidence of PW2 does not contain any
admission to the effect of during the incident appellants no.3 and 4
having not attacked his father as claimed by PW1. Since the
corroborative evidence of PW 3 and 4 being already recited, we do
not propose to make any detail dilation about the same except
stating that their account about the matters seen by them is also
consistent with the claim staked by PW1 and PW2. Thus in short, we
find that the head injury was sustained by Balasaheb as a result of
assault with deadly weapons made by appellant nos. 1, 3 and 4 and
as such the evidence having established their liability of committing
offence under Section 302 read with 34 of I.P.C.
50. Now considering the account of the incident as disclosed
from the evidence of injured witnesses PW1, PW2, PW3 and so also
PW4 regarding assault made upon said witnesses but without
repeating material part due to the same being recited earlier, we
find that the same duly also establishes active involvement of
appellant no.2, 5 , 6 , 7, 8 and 9 in assaulting PW1, PW2, PW3 and
Manoj and Harishchandra by means of weapons such as stick, iron
bar and stones and causing them injuries as deposed by respective
witness. It can be added that the said evidence not only reveals
injuries caused to the respective witness but also establishes injuries
caused to his companions and the authors of the same.
Additionally the evidence of PW3 also establishes assault effected on
him and the others and injuries sustained by the concerned and on
particular appellant being responsible for the same. The evidence of
PW4 also discloses regarding the assault effected upon PW3 and so
also the nature of injuries suffered by PW1, PW2, PW3, Manoj and
Harishchandra. The fact of Pw1, PW2 , PW3 and Manoj having
sustained injuries is also duly established from the evidence of PW5
and so also to some extent by evidence of PW6. Thus the evidence
of the relevant witnesses is found corroborated from the medical
evidence regarding nature of injuries received and about the part of
the body of the said witness which was assaulted. All the said
evidence duly establishes the guilt of A2, A5 to A9 in commission of
offence under Section 324 of I.P.C. Hence, though we have
acquitted the said appellants from commission of offence under
Section 302 of I.P.C., we find them guilty for the offence punishable
under Section 324 of I.P.C. and sentence them to suffer rigorous
imprisonment for 9 months.
51. Lastly with regard to the decisions in the case of Masalti,
Lalji, Kanwarlal, Balaur Singh and State of Haryana (supra)
relied by the learned counsel for the appellants and out of them
most being regarding the incidents involving the free fight and/or
the other principles regarding ascertaining of existence of unlawful
assembly, though we have carefully considered the same, we do
not propose to make any threadbare dilation regarding each of the
decision in view of the conclusion arrived by us that there was no
unlawful assembly of the appellants nor there was a free fight in
between the parties. Needless to add, the principles regarding
determination of an unlawful assembly and so also about the
appreciation of the evidence stated in the said decisions about which
no quarrel can be entertained being duly taken into consideration
while deciding the present appeal, would be an another reason for
ourselves not making threadbare dilation about the said decisions in
which facts are not akin with the facts in the instant case.
52. In the premises aforesaid, we partly allow the appeal in
terms of the following order :
I. The Appellants/original Accused Nos. 1 to 9 are acquitted
of the offences punishable under Section 148 and 149 of the Indian
Penal Code.
II. The Appellant/Accused Nos. 2,5 to 9 are acquitted of the
offence punishable under Section 302 of the Indian Penal Code.
III. The Appellant/ Original Accused Nos. 1,3 and 4, however,
are convicted for the offence punishable under Section 302 read
with S.34 of the Indian Penal Code and sentenced to suffer rigorous
imprisonment for life, and to pay fine of Rs.5000/- each and in
default, to suffer further rigorous imprisonment for two months.
IV. Appellant/Accused Nos. 2, 5 to 9 are convicted for the
offence punishable under Section 324 of the Indian Penal Code and
sentenced to suffer rigorous imprisonment for 9 months.
Appeal is disposed of in the aforesaid terms.
(P.D. Kode, J.) (V.M. Kanade, J.)
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