Bombay High Court
Prakash Dattatrey Khandekar And ... vs The State Of Maharashtra And Ors on 25 February, 2021
Bench: S.S. Jadhav, N. J. Jamadar
CRIAPPEAL-517-2015-J-.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 517 OF 2015
WITH
CRIMINAL APPLICATION NO. 1306 OF 2015
1. Prakash Dattatrey Khandekar
aged : 49 years.
2. Vaibhav Daulat Khandekar
Aged : 30 years.
3. Arjun Dattatrey Khandekar
Aged : 62 years.
4. Vasant Dattatrey Khandekar
Aged : 55 years
5. Chandrakant Keshav Khandekar
Aged : 57 years
6. Daulat Tukaram Khandekar
Aged : 64 years
7. Sunil Sakharam Khandekar
Aged : 48 years
8. Haresh Krishna Khandekar
Aged : 35 years
9. Madhukar Moru Khandekar
Aged : 62 years
10. Krishna Sahadeo Khandekar
Aged : 70 years
11. Eknath Jairam Khandekar
Aged : 45 years
12. Giridhar Khelu Khandekar
Aged : 48 years
13. Sonu Jairam Khandkar
Aged : 44 years
14. Dilip Namdeo Khandekar
Aged : 45 years
15. Somnath Mahadeo Khandekar
Aged : 41 years
16. Shailesh Gunaji Khandekar
Aged : 37 years
17. Sudhir Namdeo Khandekar
Aged : 41 years ...Appellants
All residents of Pale Tarfe Ashtami, (Ori. Accused
Tal Roha, District Raigad nos.1 to 17)
1/88
CRIAPPEAL-517-2015-J-.DOC
(All are at present lodged in Nashik
Road Central Prison)
Versus
1. The State of Maharashtra
At the instance of Roha Police Station
vide their CR No.40 of 2012.
2. Smt. Indumati Dattatrey Khandekar
3. Nivrutti Janu Khandekar
4. Sudhir Bhagwan Khandekar
Nos.2 to 4 residing at Pale Tarfe ...Respondents
Ashtami, Tal. Roha, District Raigad. (nos.2 to 4 ordered to
receive compensation)
Mr. Shirish Gupte, Senior Counsel, a/w Mr. Sudeep Pasbola, Mr.
Karl Rustomkhan & Mr. Rahul Arote, for the Appellants.
Ms. P. P. Shinde, APP for the State/Respondent.
Ms. Amita Kuthikrishnan, Court appointed Advocate for
respondent nos.2 to 4.
CORAM: SMT. SADHANA S. JADHAV
& N. J. JAMADAR, JJ.
RESERVED ON : 10th December, 2020
PRONOUNCED ON: 25th February, 2021
JUDGMENT : (Per: N. J. Jamadar, J.)
1. This appeal is directed against the judgment and order
dated 17th April, 2015, passed by the learned Additional
Sessions Judge, Mangaon, District Raigad, in Sessions Case
No.20 of 2012, whereby and whereunder the appellants -
accused were convicted for the offences punishable under
Sections 302, 307, 324, 504 and 506 read with Section 149 and
Sections 147 and 148 of the Indian Penal Code, 1860 ('the Penal
Code'), and sentenced to suffer imprisonment for life and pay
fne of Rs.15,000/- each for the offence punishable under
CRIAPPEAL-517-2015-J-.DOC
Section 302 read with Section 149; rigorous imprisonment for
the period of 10 years and fne of Rs.15,000/- each for the
offence punishable under Section 307 read with Section 149
and varying periods of imprisonment and fne for the rest of the
offences, with default stipulation.
2. The gravamen of indictment against the accused runs as
under:
(a) Pale Tarfe Ashtami is a small village of about 100
households in Taluka Roha, District Raigad. Till the year 2011
all the residents were affliated to Peasants and Workers Party
('PWP'). One year prior to the occurrence, 17 families joined
Nationalist Congress Party ('NCP'), resulting in a rift amongst
the villagers. The majority of the villagers, who were affliated to
PWP, gave a call for social boycott of the members of those 17
families, who joined NCP. The latter were not allowed to
participate in any marriage and other functions, share the
community utensils, and also take part in the annual religious
congregation (yatra) of goddess Bhavanimata.
(b) On 7th April, 2012, the palanquin procession of
goddess Bhavanimata was to commence from the Bhavanimata
temple in between 3.00 to 3.30 pm. The residents of the village,
including the members, who were affliated to PWP and NCP,
CRIAPPEAL-517-2015-J-.DOC
had gathered. Since there was an apprehension of law and order
issue, a police party, led by the Police Inspector Mr. Suresh
Jadhav (PW-18), had already arrived. Mr. Jadhav (PW-18) had
called a meeting of the members of the rival political factions
near the house of Bhagwan Khandekar, the Police Patil of village
Pale. Sudam Khandekar and other seven persons belonging to
NCP went for the said meeting. Shashikant Laxman Dant
(PW-1), the frst informant, Nathuram Khandekar (the
deceased), Nivrutti Khandekar (PW-2), Sudhir Khandekar (PW-3)
and Prabhakar Petkar (PW-4) stayed back in the sabhamandap
(meeting hall) of Bhavanimata temple.
(c) Accused nos.1 to 17, led by accused no.1 Prakash
Khandekar, charged upon the members of the informant party
by giving exhortation, "catch, stab and fnish them all" ( dhara,
saale bhetlet, tyana bhoskun khalas kara). Accused no.4
Vasant and accused no.3 Arjun caught hold of the deceased
Nathuram. Accused no.1 Prakash gave a blow by means of knife
on the chest of the deceased. Accused no.12 Giridhar, accused
no.13 Sonu, accused no.5 Chandrakant and accused no.14 Dilip
caught hold of Sudhir Khandekar (PW-3) and accused no.11
Eknath attempted to commit murder of Sudhir (PW-3) by giving
a blow by means of knife on his stomach. Accused no.6 Daulat,
CRIAPPEAL-517-2015-J-.DOC
accused no.15 Somnath, accused no.8 Haresh, accused no.17
Sudhir accosted Nivrutti Khandekar (PW-2) and gave him fst
blows and accused no.7 Sunil and accused no.2 Vaibhav
attempted to kill Nivrutti (PW-2) by unleashing blows by means
of gupti (sword-stick) and knife respectively. Prabhakar Petkar
(PW-4) was caught hold of by accused no.10 Krishna and
assaulted by accused no.9 Madhukar by means of Taal
(cymbals). Accused no.16 Shailesh and Accused no.6 Daulat
beat Shashikant Dant, (PW-1), the frst informant, on his head
by means of sticks.
(d) Nathuram, Nivrutti and Sudhir sustained grievous
injuries. Nathuram was shifted to Rural Hospital, Roha.
Nathuram was pronounced dead. Nivrutti (PW-2) and Sudhir
(PW-3) were shifted to Millennium Hospital, Seawood, Navi
Mumbai, for better treatment of the grievous injurious
sustained by them.
(e) The police party, which was present at the spot,
apprehended the assailants. Shashikant Dant (PW-1), the frst
informant, lodged a report (Exh-69). Crime was registered vide
CR No.40 of 2012 for the offences punishable under Sections
302, 307, 325, 324, 147, 143, 148, 149, 504 and 506 of the
Penal Code at Roha Police Station. Investigation commenced.
CRIAPPEAL-517-2015-J-.DOC
(f) Inquest (Exhibit-118) was held on the body of the
deceased Nathuram. It was sent for postmortem examination.
The Investigating Offcer again returned to the scene of
occurrence and drew panchnama. The samples of the blood
which had spilled in the sabhamandap were collected. The
weapons i.e. sticks and a cycle chain were seized. Accused
nos.1 to 10 came to be arrested. The Investigating Offcer
interrogated the witnesses and recorded their statements.
Accused no.1 Prakash, accused no.11 Eknath, accused no.2
Vaibhav, accused no.7 Sunil, accused no. 9 Madhukar made
discoveries leading to the recoveries of the respective weapons of
offence. The postmortem report of the deceased and injury
certifcates of the injured as well as accused no.1 Prakash,
accused no.11 Eknath and accused no.12 Giridhar were
obtained. The samples and the incriminating articles were sent
for analysis to Forensic Science Laboratory. CA reports were
obtained. After fnding the complicity of accused nos.1 to 17,
charge-sheet came to be lodged against the accused in the Court
of the jurisdictional Magistrate.
(g) Upon committal, the learned Additional Sessions
Judge framed charge for the offences punishable under Sections
302, 307, 324, 504, 506 read with Section 149 and Sections 147
CRIAPPEAL-517-2015-J-.DOC
and 148 of the Penal Code. The accused abjured their guilt and
claimed for trial.
(h) At the trial, to substantiate the indictment against
the accused the prosecution examined 18 witnesses. The ocular
account consists of the testimony of Shashikant Dant (PW-1);
the frst informant, Nivrutti Khandekar (PW-2), Sudhir
Khandekar (PW-3) and Prabhakar Petkar (PW-4); the injured
witnesses, and Sachin Chaure (PW-5); the then Police Naik, who
claimed to be present in the sabhamandap at the time of the
occurrence. The medical evidence is formed by the testimony of
Dr. Nishith Dhruv (PW-7), who runs Amrita Nursing Home at
Bhuvaneshwar and had examined Nivrutti (PW-2) on the date of
the occurrence, Dr. Uday Tambe (PW-8), the visiting surgeon at
Millennium Hospital, Panvel, where Nivrutti (PW-2) and Sudhir
(PW-3) were operated upon, and Dr. Anandkumar Awdhesh
Narayan Singh (PW-9), the Medical Offcer posted at Rural
Hospital, Roha, who had initially examined the deceased
Nathuram, Sudhir Khandekar (PW-3), Prabhkar Petkar (PW-4)
and Shashikant Dant (PW-1) and had conducted autopsy on the
body of the deceased Nathuram, and had also examined
accused no. 1 Prakash, accused no.11 Eknath and accused
no.12 Giridhar on 8th April, 2012. The seizure of incriminating
CRIAPPEAL-517-2015-J-.DOC
articles and the recovery of weapons of offence pursuant to the
discoveries made by the accused were sought to be established
by examining Vilas Khandekar (PW-10), Hari Kadam (PW-11),
Ganesh More (PW-12), the public witnesses, who did not
support the prosecution earnestly. The police personnel Maruti
Mhatre (PW-15), Siddharth Shinde (PW-16), Ashok Gaikwad
(PW-17) and Suresh Jdhav (PW-18), the Investigating Offcer,
furnished the details of investigation.
(i) After the closure of the prosecution case, the
accused were examined under Section 313 of the Code of
Criminal Procedure, 1973 ('the Code'). The accused did not lead
any evidence in their defence which primarily consists of denial
and false implication on account of political rivalry. Accused
no.17 Sudhir Khandekar has endeavoured to establish defence
of alibi by placing reliance on the testimony of Dr. Umakant
Jadhav (PW-6), who runs a hospital at Pale. Accused no.16
Shailesh has also claimed that he was not present at village Pale
at the time of occurrence. The general tenor of the defence is
that the scuffe broke out when the informant party forcibly
entered into the Bhavanimata temple despite an understanding
arrived at between the parties that they would have the darshan
of the palanquin when it reached in front of their respective
CRIAPPEAL-517-2015-J-.DOC
homes. There was, thus, neither an unlawful assembly nor the
alleged offences were committed in prosecution of the common
object of the unlawful assembly.
(j) After evaluation of the evidence and material on
record, the learned Additional Sessions Judge was persuaded to
enter a fnding that the accused were the members of the
unlawful assembly, the common object of which was to commit
the murder of the deceased and also attempt to commit the
murder of Nivrutti (PW-2) and Sudhir (PW-3) and cause hurt to
the rest of the members of the informant party, and the offences
of murder, attempt to commit murder, voluntarily causing hurt,
intentional insult and criminal intimidation were committed in
prosecution of the said common object of the unlawful
assembly. The accused also committed rioting armed with
deadly weapons. The accused thus came to be convicted and
sentenced, as indicated above.
3. Being aggrieved by and dissatisfed with the impugned
judgment of conviction and order of sentence, the accused are
in appeal.
4. We have heard Mr. Shirish Gupte, the learned Senior
Counsel and Mr. Sudeep Pasbola, for the appellants and Ms. P.
P. Shinde, the learned APP for the State, at considerable length.
We have also heard Ms. Kuthikrishnan, for respondent nos.2 to4.
CRIAPPEAL-517-2015-J-.DOC
With the assistance of the learned Counsels for the parties we
have minutely perused the evidence and material on record.
5. A multi-fold challenge was mounted on behalf of the
appellants to the impugned judgment. At the outset, it was
urged that the very setting of the law in motion is shrouded in
mystery. The evidence led by the prosecution throws a serious
doubt over the time at which the crime was registered. If the
frst informant is to be believed, the FIR was recorded at about
11.00 pm. on 7th April, 2012. In contrast, the FIR (Exhibit-69) is
shown to have been registered at 5.30 pm. This inconsistency
dismantles the substratum of the prosecution case. Secondly,
there is an irreconcilable inconsistency regarding the exact
place where the deceased and the injured were allegedly
assaulted. In the least, the prosecution version presents two
scenes of occurrence. One, the gabhara (sanctum sanatorium)
of Bhavanimata temple. Two, the sabhamandap (meeting hall).
Having regard to the distance between these two places, this
inconsistency bears upon the opportunity for the witnesses to
observe the occurrence and thereby dents the prosecution.
Thirdly, the testimony of Nivrutti (PW-2) and Sudhir (PW-3), the
injured eye witnesses, does not merit implicit reliance. On the
one hand, their testimony bristles with material improvements
CRIAPPEAL-517-2015-J-.DOC
and omissions. On the other hand, there is both inordinate and
unexplained delay in recording their statements under Section
161 of the Criminal Procedure Code, 1973 ('the Code'), which
impairs the veracity of their claim. In the backdrop of the
inimical relations, on account of political affliation, this delay
assumes critical signifcance, urged the learned Senior Counsel
for the accused. Fourthly, the evidence of Sachin Chaure (PW-
5), the Police Naik, who can be said to be the only independent
witness, is unworthy of credence. Fifthly, the discoveries
allegedly made by the accused leading to the recovery of the
weapons of offence are fraught with infrmities. It defes
comprehension that when the accused were immediately
apprehended, they could conceal the weapons at the places
(from where those weapons were allegedly recovered) and again
come back to the sabhamandap (meeting hall) where they were
initially detained. The circumstantial evidence, according to the
learned Senior Counsel for the accused, is extremely fragile and
unsatisfactory. Sixthly, the evidence led by the prosecution
betrays an attempt to fabricate the record, especially the injury
certifcates, to suit the prosecution case. Lastly, it was urged
with a degree of vehemence that, even if the evidence is taken at
par, an inference of formation of an unlawful assembly and
commission of the offences in prosecution of the object of the
CRIAPPEAL-517-2015-J-.DOC
unlawful assembly cannot be drawn. The learned Additional
Sessions Judge, according to the learned Senior Counsel for the
accused, committed a grave error in roping in all the accused by
invoking the principle of constructive criminality. This legal faw
vitiated the entire reasoning and fnding of the learned
Additional Sessions Judge.
6. In opposition to this, Ms. Shinde, the learned APP for the
State stoutly supported the impugned judgment. It was
submitted that the testimony of Nivrutti (PW-2) and Sudhir
(PW-3), who were critically injured in the occurrence, is worthy
of implicit reliance. Their evidence is amply corroborated by the
evidence of Prabhakar Petkar (PW-4), again an injured witness,
and Sachin Chaure (PW-5). The medical evidence lends
requisite support. From the tenor of the defence, it is evident
that, the accused, who were then affliated to PWP, had a grudge
against the informant party for having defected to NCP and were
bent on restraining the informant party from taking part in the
palanquin procession. This furnished the strong motive to
mount murderous assault upon the deceased and the injured.
Viewed through this prism, according to the learned APP, the
guilt of the accused can be said to have been established beyond
the pale of controversy. The minor omissions and
CRIAPPEAL-517-2015-J-.DOC
contradictions in the evidence of the prosecution witnesses and
the lapses in investigation, including the aspect of delay in
recording the statements of Nivrutti (PW-2) and Sudhir (PW-3)
under Section 161 of the Code, do not detract materially from
the prosecution case, urged the learned APP. On the legal
premise, it was submitted that an assembly can turn unlawful
at the spur of moment. Thus, the learned Additional Sessions
Judge was within his rights in recording a fnding that the
accused were the members of an unlawful assembly and
committed the offences in prosecution of the common object of
the unlawful assembly, submitted the learned APP.
7. A brief resume of the evidence may be apposite to
appreciate the aforesaid submissions in a correct perspective.
8. Shashikant Dant (PW-1), the frst informant, through
whom the prosecution endeavoured to unfurl its case, did not
support the prosecution. He deposed that on the day of
occurrence while he was about to enter the sabhamandap
(meeting hall) of the temple, he was assaulted on head by
somebody with some object. He availed treatment at the Rural
Hospital, Roha, where the police obtained his signature on the
report (Exhibit-69), to the contents of which Shashikant Dant
(PW-1) did not subscribe unreservedly. The testimony of
CRIAPPEAL-517-2015-J-.DOC
Shashikant Dant (PW-1) revealed that the accused party, which
was then affliated to PWP, switched over to NCP on 23 rd
February, 2013 and now both the groups are affliated to NCP.
Though Shashiknat Dant (PW-1) denied the suggestion that on
account of the said political move, he did not support the
prosecution case, yet the said development cannot be said to be
totally inconsequential.
9. Nivrutti (PW-2), the injured, informed the Court that on
the day of occurrence at about 3.30 pm., he had gone to the
temple of Bhavanimata as the palanquin procession was to
begin. Sharad, Shekhar, Umaji, Suresh Khandekar, Dashrath
Khandekar, Sandip Khandekar and Sudam Khandekar of his
party (NCP) and the accused were present in the temple. Police
Inspector Mr. Jadhav called the members of NCP for a meeting
near the house of the Police Patil. Sharad, Shekhar, Umaji,
Dashrath, Sandip, Sudam and Suresh, the members of NCP,
went for the said meeting. He, Shashikant Dant (PW-1),
Nathuram (the deceased), Prabhakar Petkar (PW-4), Sudhir (PW-
3) and rest stayed back in the sabhamandap. The accused gave
the exhortation, "catch, stab and fnish them all" ( dhara, saale
bhetlet, tyana bhoskun khalas kara). Accused no.3 Arjun,
accused no.4 Vasant and accused no.15 Somnath caught hold
CRIAPPEAL-517-2015-J-.DOC
of deceased Nathuram. Accused no.1 Prakash gave a blow by
means of knife on the chest of the deceased.
10. Nivrutti (PW-2) claimed to have tried to intervene.
Thereupon accused no.6 Daulat, accused no.5 Somnath,
accused no.17 Sudhir, accused no.10 Krishna, accused no.8
Haresh caught hold of him whereas accused no.7 gave a blow by
means of gupti (sword-stick) on his stomach and accused no.2
Vaibhav gave a blow by means of a pointed weapon near his
right armpit. Nivrutti (PW-2) claimed to have sustained grievous
injuries. Mangesh Khandekar shifted him to Dhruv Hospital.
Nivrutti (PW-2) deposed that he lost consciousness while he was
admitted in Dhruv hospital and regained the consciousness at
Millennium Hospital, Seawood.
11. The aforesaid version of Nivrutti (PW-2), especially on the
aspect of the assault upon the deceased, was sought to be
corroborated by Sudhir (PW-3), another injured. After apprising
the Court about the enmity, which had developed over the
informant party joining the NCP, Sudhir (PW-3), on the core of
the occurrence, informed the Court that while few members of
NCP had gone for a meeting which was convened by P.I. Jadhav,
and they were in the sabhamandap (meeting hall), the accused
gave the exhortation to kill the members of the informant party.
CRIAPPEAL-517-2015-J-.DOC
Accused no.4 Vasant, accused no.3 Arjun and accused no.15
Somnath caught of the deceased Nathuram and accused no.1
Prakash stabbed the deceased in the chest by means of knife
(Article-8). Sudhir (PW-3) claimed to have attempted to restrain
accused no.1 Prakash. Thereupon accused no.12 Giridhar,
accused no.14 Dilip, accused no.15 Chandrakant caught hold of
him and accused no.11 Eknath assaulted him by means of
knife, on his stomach. His intestines came out. He sat on the
ground. Shubhangi and Sharad Dant shifted him to Rural
Hospital, Roha, wherefrom he was taken to Millennium
Hospital, Seawood.
12. Prabhakar Petkar (PW-4) sought to lend support to the
testimony of Sudhir (PW-3). Prabhakar (PW-4) informed the
Court about the circumstances in which the accused party had
imposed social boycott on the informant party. At the time of
occurrence, Prabhakar (PW-4) claimed to have been in the
sabhamandap alongwith the deceased Nathuram, Nivrutti
(PW-2), Sudhir (PW-3) and Shashikant (PW-1). He was in
unison with Nivrutti (PW-2) and Sudhir (PW-3) on the point that
the accused party raised a cry to eliminate them. Prabhakar
(PW-4) wants the Court to believe that Sudhir (PW-3) was
caught hold of by accused no.14 Dilip, accused no.15
CRIAPPEAL-517-2015-J-.DOC
Chandrakant, accused no.13 Sonu and accused no.12 Giridhar
and accused no.11 Eknath assaulted Sudhir (PW-3). The
accused pushed him also. Accused no.10 Krishna caught hold of
him and accused no.9 Madhukar gave a blow by means of taal
(cymbals) on his head. He claimed to have sustained injury. He
was shifted to Rural Hospital, Roha.
13. Sachin Chaure (PW-5), the Police Naik, then attached to
Roha Police Station, informed the Court that he was part of the
police party which had been stationed at Bhavanimata temple.
In between 3.00 to 3.30 pm. the villagers gathered at the temple.
He was present in the sabhamandap of the temple. Sachin
(PW-5) claimed to have heard a hue and cry as "beat, beat"
(marle, marle) from the gabhara ( sanctum sanctorium) of the
temple. He and P. I. Jadhav rushed to rescue. Two persons had
caught hold of deceased Nathuram by his hand. Accused no.1
Prakash inficted blow by means of knife (Article-8) on the chest
of the deceased. They raised shouts, "catch, catch" ( dhara,
dhara). Accused no.1 Prakash fed away. Sachin (PW-5) claimed
to have given an unsuccessful chase. Sachin (PW-5) further
informed that the mob was dispersed and the injured were
shifted to hospital for medial treatment. Sachin (PW-5)
CRIAPPEAL-517-2015-J-.DOC
expressed his inability to identify those two persons who had
caught hold of the deceased when he was assaulted.
14. At this juncture, recourse to the medical evidence, may be
advantageous. To begin with, the testimony of Dr. Anandkumar
Singh (PW-9). It is in the evidence of Dr. Anandkumar (PW-9)
that on the day of occurrence while he was posted as Medical
Offcer at Rural Hospital, Roha at about 4.00 pm. the deceased
Nathuram and Sudhir (PW-3) were brought at the hospital. The
condition of the deceased was critical. He was gasping. He
noticed an injury on the left side of the chest extending from 4 th
to 6th intercostal region, just below the nipple. The deceased
suffered cardiac arrest and was declared dead.
15. Dr. Anandkumar (PW-9) claimed to have conducted
postmortem examination on the body of the deceased and found
following two external injuries:
"A) Obliquely placed in right side of chest extending from 4 th to 6th
intercostal region just below nipple (left).
Size - 8 cm. X 4 cm. X 15 cm.
wound is tailing into abrasion below.
B) Obliquely placed on left side on back in 5 th to 6th intercostal
space.
Size - 5 cm. X 2 cm. X 2 cm."
16. On internal examination, Dr. Anandkumar (PW-9) claimed
to have noticed that the 5th and 6th ribs were incised. The
CRIAPPEAL-517-2015-J-.DOC
underlying pleura was found punctured with blood in pleural
cavity. There was lacerated wound on the middle lobe of lung,
single admeasuring 6 cm. in length. The right ventricle was
found punctured with single injury measuring 3 cm. Inter
vernricluar septum was found punctured. In the opinion of Dr.
Anandkumar (PW-9) the probable cause of death was cardiac
arrest due to cardiac tamponade due to stab wound involving
heart and prericardium. Postmortem report (Exhibit-106) and
the advance cause of death certifcate (Exhibit-107) were proved
in his evidence. Dr. Anandkumar (PW-9) further opined that the
injuries were antemortem and were possible by the weapon i.e.
knife (Article-8).
17. It would be imperative to note that there is not much
controversy over the fact that deceased Nathuram met a
homicidal death. The nature of injuries, noted by the autopsy
surgeon, indicate that the deceased had met a homicidal death.
The endeavour of the accused during the course of the cross-
examination of the prosecution witnesses and in their
examination under Section 313 of the Code was to demonstrate
that the incident did not occur in the manner alleged by the
prosecution and that though the deceased met a homicidal
death in the course of the said occurrence yet prosecution did
CRIAPPEAL-517-2015-J-.DOC
not succeed in establishing the authorship of the death. Thus,
the fact that the deceased met a homicidal death can be said to
have been established beyond the pale of controversy.
18. Dr. Anandkumar (PW-9) claimed to have examined Sudhir
(PW-3) as well. Sudhir (PW-3) had sustained grievous stab
wound on the left lower abdomen. The size of the injury was 12
x 3 cm.. Intestine was protruding out. Wound was gathered
with normal saline gauze, and Sudhir (PW-3) was referred to a
higher medical centre for further medical and surgical
treatment.
19. Dr. Anandkumar (PW-9) further examined Prabhakar
Petkar (PW-4) and noticed a CLW on temporal region measuring
4 x 5 cm. It was a simple injury. It might have been caused by
hard and blunt object. In the opinion of Dr. Anandkumar the
said injury was possible by the weapon i.e. taal (cymbals)
(Article-12).
20. Shashikant Dant (PW-1) was also examined by Dr.
Anandkumar (PW-9) at about 5.15 pm. He was brought with a
history of alleged assault. On examination, Dr. Anandkumar
claimed to have found a CLW on temporo frontal region
measuring 2.5 x 2 cm. It might have been caused by a hard and
CRIAPPEAL-517-2015-J-.DOC
blunt object. In his opinion the said injury was possible with
the help of any of the sticks (Article nos.2 to 4 and 13).
21. Nivrutti (PW-2) was initially shifted to Amrita Nursing
Home, Bhuvaneshwar. Dr. Nishith Dhruv (PW-7) testifed to the
fact that he had examined Nivrutti (PW-2), who was brought
with a history of alleged stab with knife/sura and found
following injuries:
"1. Roughly D-shaped wound in the hypochondrium about 3 cm. X
1 cm. X peritoneum-deep with omentum pouti out.
2. Small CLW about 0.2 cm. X 0.2 cm. peritoneum deep also with
omentum poutin out and covering in the wound.
3. Wound in right Axilla just behind the anterior axillallry fold
about 2 cm. X 0.5 cm. deep.
4. The wound on left in fore arm on the ventral aspect 5 cm.
proximal to the writ joint on the unlar side about 0.5 cm. X 0.1
by skin deep."
22. In the opinion of Dr. Nishith (PW-7), injury no.1 was
caused due to penetration of edged weapon whereas injury no.2
was the exit wound. Dr. Nishith endeavoured to clarify that
though injury nos.1 to 3 were caused by an edged weapon, it
was incorrectly mentioned in the injury certifcate (Exhibit-84)
that the injuries were caused by a blunt and heavy object due to
inadvertent oversight. Dr. Nishith (PW-7) claimed to have closed
those injuries by stapling.
23. Dr. Uday Tambe (PW-8), the then visiting surgeon at
Millennium Hospital, Panvel, informed the Court that on
CRIAPPEAL-517-2015-J-.DOC
7th April, 2012, he was called at Millennium Hospital for
examination of two patients, who had sustained stab wounds, in
between 10.15 to 11.00 pm. Nivrutti (PW-2) and Sudhir (PW-3)
were then admitted in ICU. They both narrated history of
stabbing. On the person of Sudhir (PW-3), Dr. Uday Tambe
(PW-8) found injury on lower abdomen below navel.
Immediately surgery was performed. In the surgery the affected
part of the intestine was removed. The said injury was possible
by knife (Article-9). Dr. Tambe opined that the said injury was
of serious nature and if not treated immediately it would have
resulted in death within a few hours.
24. On the person of Nivrutti (PW-2) he claimed to have found
omentum paouting from the abdomen. Two liters of blood was
found in the abdominal cavity with multiple perforation on the
jejunum. Surgery was performed. The said injury was possible
by means of gupti (sword-stick) (Article-11) and the injury on
the right side of the chest was possible due to assault by means
of knife (Article-10).
25. The medical evidence, especially on the aspect of the
grievous injuries sustained by Nivrutti (PW-2) and Sudhir (PW-
3), could not be impeached in the cross-examination. The fatal
nature of the injuries, deposed to by the medical offcers
CRIAPPEAL-517-2015-J-.DOC
especially Dr. Tambe (PW-8), justifes an inference that the
Nivrutti (PW-2) and Sudhir (PW-3) had sustained grievous
injuries which endangered their life. Likewise, the claim of
Prabhakar (PW-4) and Shashikant Dant (PW-1) of having
sustained injuries in the course of the said occurrence at
Bhavanimata temple, fnds necessary support in the medical
evidence. Thus, an inference can be safely drawn that the
prosecution has succeeded in establishing that Nivrutti
(PW-2) and Sudhir (PW-3) sustained grievous injuries and
Prabhakar (PW-4) and Shashikant Dant (PW-1) suffered simple
injuries in the course of the occurrence at Bhavanimata temple,
on the day of occurrence.
26. This propels us to the question of the authorship of the
homicidal death of the deceased and the injuries sustained by
abovenamed prosecution witnesses. Whether the death and the
assault were caused in prosecution of the common object of the
unlawful assembly? This question begs an answer to another
pertinent question, was the assembly at Bhavanimata temple
unlawful at any point of time? Whether the accused-appellants
were the members of the unlawful assembly and could the
accused have been convicted by invoking the provisions
contained in Section 149 of the Penal Code?
CRIAPPEAL-517-2015-J-.DOC
27. Mr. Gupte, the learned Senior Counsel, urged that the
prosecution has made an endeavour to manipulate the time at
which the FIR (Exhibit-69) was lodged by Shashikant Dant
(PW-1). Inviting the attention of the Court to the testimony of
the frst informant that his signature was obtained on a report
at about 11.00 pm., while he was admitted in Rural Hospital,
Roha, it was strenuously urged that the claim of the prosecution
that the FIR was recorded and registered at 5.30 pm. is belied.
This submission is required to be appreciated in the backdrop of
the fact that Shashikant Dant (PW-1) did not support the
prosecution. His testimony was discredited during the course of
the cross-examination on behalf of the prosecution. It is stated
that politics makes strange bedfellows. It was elicited in the
cross-examination of Shashikant Dant (PW-1) that the accused
party switched over to NCP on 23 rd February, 2013 and since
then they all are working for NCP. In this view of the matter, the
accused cannot draw much mileage from the assertion of
Shashikant Dant (PW-1) that his signature was obtained on the
report at about 11.00 pm. while he was admitted in the hospital.
28. As a second limb of the aforesaid submission, the learned
Senior Counsel urged that the question as to whether
Shashikant Dant (PW-1) was the frst informant is itself
CRIAPPEAL-517-2015-J-.DOC
shrouded in mystery. To this end, the attention of the Court
was invited to the scene of occurrence panchnama (Exhibit-
165), wherein it was, inter alia, recorded that the scene of
occurrence was pointed out by Shekhar Dant, who had lodged
report of the occurrence. This statement in the scene of
occurrence panchnama (Exhibit-165), which was allegedly
drawn on the very day of occurrence in between 6.30 pm. to 7.15
pm., according to the learned Senior Counsel, throws a cloud of
doubt over the claim of the prosecution that crime was
registered on the strength of the report lodged by Shashikant
Dant (PW-1). In fact, Suresh Jadhav (PW-18), Investigating
Offcer, on his part, tried to explain the inconsistency by
affrming that the scene of occurrence was shown by
Shashikant Dant (PW-1). However, the name of Shekhar Dant,
was wrongly mentioned in the place of Shashikant Dant (PW-1),
the frst informant. It was brought out in his cross-examination
that despite having noticed the said mistake he did not make
amends.
29. The aforesaid explanation, in our view, is justifable.
Indisputably Shashikant Dant (PW-1) claimed to have sustained
injury in the very same occurrence. There is medical evidence
which lends credence to the claim of Shashikant Dant (PW-1).
CRIAPPEAL-517-2015-J-.DOC
The statement in the scene of occurrence (Exhibit-165) that the
scene of occurrence was pointed out by Shekhar Dant, who was
designated as frst informant, in the circumstances, does not
throw a cloud of doubt over the identity of the frst informant.
30. It would be contextually relevant to note that Ashok
Gaikwad (PW-17), the then SHO, Roha Police Station, has put
oath behind the assertion that on the day of occurrence at
about 4.00 pm. Shashikant Dant (PW-1) had come to Roha
police station and gave report (Exhibit-69), which was reduced
into writing by him. Ashok Gaikwad (PW-17) claimed to have
recorded the contents of the report as per the narration of
Shashikant Dant (PW-1). The extract of station diary entry
(Exhibit-161) vouches for the registration of the FIR at about
5.30 pm. Moreover, there are contemporaneous documents like
the inquest (Exhibit-118) and the scene of occurrence
panchnama (Exhibit-165), which lend support to the
prosecution case that the crime was registered at 5.30 pm.
Thus, the challenge to the prosecution based on ante timing of
the FIR does not merit countenance.
31. A more serious criticism was advanced regarding the place
of actual assault on the deceased. An endeavour was made to
draw home the point that the prosecution witnesses shifted the
CRIAPPEAL-517-2015-J-.DOC
scene of occurrence to suit the prosecution case. As noted
above, the injured witnesses have consistently deposed that the
incident occurred in the sabhamandap (meeting hall). This
version of the injured witnesses was sought to be discredited by
relying upon the testimony of Sachin Chaure (PW-5), the then
Police Naik. Special emphasis was laid on the claim of Sachin
Chaure (PW-5) that he had heard hue and cry as, " marle marle"
('beat, beat'), from the gabhara (sanctum sanctorium) of
Bhavanimata temple. Though Sachin Chaure (PW-5)
endeavoured to assert that the incident took place in
sabhamandap, yet an omission was elicited in the cross-
examination of Sachin Chaure (PW-5) to the effect that his
statement before the police does not fnd mention of the fact
that the incident occurred in sabhamandap (meeting hall).
32. Mr. Gupte urged with tenacity that in the light of the
situation at the Bhavanimata temple delineated in the site plan
(Exhibit-71), this discrepancy in the scene of occurrence
dismantles the very substratum of the prosecution case. The
gabhara (sanctum sanctorium) is located at the rear end of the
temple, whereas the sabhamandap (meeting hall) is located in
the front portion. There are structures in between the
sabhamandap (meeting hall) and gabhara (sanctum
CRIAPPEAL-517-2015-J-.DOC
sanctorium). The witnesses could not have noticed the incident
which occurred in the gabhara (sanctum sanctorium) from the
sabhamandap (meeting hall).
33. The site plan (Exhibit-71) reveals that the temple is
situated East-West. In the front portion towards east there is a
space of about 40 ft. X 40 ft. covered with tin roof. The sanctum
sanctorium is on the western side. The distance between the
sanctum sanctorium and the steps leading to the main entry to
the temple is about 30 ft. The blood stains were found in the
frst part of the sabhamandap (meeting hall). The length of the
temple premises is about 50 ft.
34. In the context of the situation delineated in the site plan
(Exhibit-71), it was elicited in the cross-examination of Nivrutti
(PW-2) that in the front of the gabhara (sanctum sanctorium)
there was enclosed portion to which there are two windows and
three doors, which are on the northern, eastern and southern
side. He conceded that in front of the gabhara (sanctum
sanctorium) decoration of the palanquin takes place. The
sabhamandap (meeting hall) is located in front of the enclosed
portion of the temple, in two parts. Nivrutti (PW-2) asserted
that on the day of occurrence he did not enter gabhara
(sanctum sanctorium) or the enclosed portion adjacent to the
CRIAPPEAL-517-2015-J-.DOC
gabhara (sanctum sanctorium). Nivrutti (PW-2) affrmed that he
and the deceased Nathuram were assaulted in the eastern
portion of the sabhamandap (meeting hall). He conceded that it
would be wrong to state that the deceased was assaulted in
gabhara (sanctum sanctorium),
35. Contrasting the aforesaid claim of Nivrutti (PW-2) and
other injured witnesses with that of the Sachin Chaure (PW-5),
especially the assertion that he had heard the cry emanating
from the gabhara (sanctum sanctorium) of the temple, it was
strenuously urged that the incident did not take place in the
sabhamandap (meeting hall), as claimed by the prosecution
witnesses. The submission appears attractive at the frst blush.
However, when subjected to close scrutiny, the submission does
not hold much ground.
36. Indisputably the villagers had gathered in the
sabhamandap (meeting hall) and the gabhara (sanctum
sanctorium) of the Bhavanimata temple. Temple was a crowded
place. Sachin (PW-5) affrmed that at the time of the occurrence
the police party was in the North-East corner of the
sabhamandap (meeting hall). The gabhara (sanctum
sanctorium) was at a distance of about 70 ft. from the said spot.
The situation is thus required to be appreciated in the light of
CRIAPPEAL-517-2015-J-.DOC
the fact that in a space of hardly 100 ft. in length, there were
more than 150 persons. The palanquin had still not left the
temple. Preparations were on. When the assault was
unleashed, it was but natural for the persons, who had
gathered, to raise alarm. The assertion of Sachin Chaure (PW-5)
that he heard the alarm emanating from the gabhara (sanctum
sanctorium), in the totality of the circumstances, does not
justify the only inference that the assault was frst mounted
inside the gabhara (sanctum sanctorium).
37. It is imperative to note that the members of the PWP were
averse to the members of NCP taking part in the procession of
palanquin. The accused party was resisting the entry of the
informant party into the temple and their participation in the
palanquin procession. It does not stand to reason that with
such an animosity and hostility towards the informant party,
the members of the informant party would have been allowed to
enter gabhara (sanctum sanctorium). In any event, having
regard to the distance between the sabhamandap (meeting hall)
and gabhara (sanctum sanctorium), it would be taking a very
unrealistic view of the matter to come to the conclusion that the
witnesses had no opportunity to observe the incident, much
less, draw an inference that the incident occurred in gabhara
CRIAPPEAL-517-2015-J-.DOC
(sanctum sanctorium). There is no material to indicate that any
marks of scuffe or blood stains were found in the gabhara
(sanctum sanctorium). The omission elicited in the cross-
examination of Sachin Chaure (PW-5) that that incident took
place in sabhamandap (meeting hall), in the aforesaid backdrop,
does not erode the credibility of the evidence of Sachin Chaure
(PW-5). We are, thus, not persuaded to accede to the
submission on behalf of the accused that there is an element of
uncertainty about the exact place where the deceased and the
injured were assaulted.
38. The prosecution was also assailed on the count that the
prosecution suppressed the genesis of the occurrence. The
edifce of this submission was built on the premise that the
prosecution did not offer any explanation, much less justifable
one, as regards the injuries on the person of the accused. To
this end, reliance was placed on the evidence of Dr.
Anandkumar Singh (PW-9).
39. It is in the evidence of Dr. Anandkumar (PW-9) that on 8 th
April, 2012, he had examined accused no.1 Prakash and found
an abrasion admeasuring 3 X 4 cm. on the back of his neck.
Dr. Anandkumar (PW-9) claimed to have examined accused
no.11 Eknath and found two clean incised wounds on distal
CRIAPPEAL-517-2015-J-.DOC
phalanx of right thumb on the palmar aspect. On the
examination of accused no.12 Giridhar, Dr. Anandkumar (PW-9)
claimed to have found a bruise on right side lower back
admeasuring 15 X 4 cm. and another abrasion on the left elbow
admeasuring 3 X 2 cm. The Medico-Legal Certifcates of
accused no.1 Prakash (Exhibit-108), accused no.11 Eknath
(Exhibit-109) and accused no.12 Giridhar (Exhibit-110) came to
be proved in the evidence of Dr. Anandkumar (PW-9). He opined
that the injuries on the person of accused no.1 Prakash and
accused no.12 Giridhar were possible while running after scuffe
and the injury on the thumb of accused no.11 Eknath was
possible while giving a blow by means of sura/knife (Article-9).
All these injuries were suffered within 24 to 36 hours of the
examination.
40. Mr. Gupte, the learned Senior Counsel urged that in the
backdrop of the aforesaid medical evidence which establishes
beyond the pale of controversy the fact that three of the accused
namely accused no.1 Prakash, accused no.11 Eknath and
accused no.12 Giridhar had sustained injuries in the course of
the same occurrence, the prosecution witnesses, who had the
audicity to feign ignorance about the injuries sustained by the
accused, are unworthy of credence. Nivrutti (PW-2) asserted
CRIAPPEAL-517-2015-J-.DOC
that he had not seen as to whether the abovenamed accused
had sustained injuries. Sudhir (PW-3) also conceded in the
cross-examination in no uncertain terms that he had not seen
as to whether anyone had assaulted accused no.12 Giridhar nor
had he seen the injuries on the person of accused no.12
Giridhar. He had not known as to whether anyone had
assaulted accused no.1 Prakash and accused no.11 Eknath and
whether they had sustained any injuries. Prabhakar Petkar
(PW-4) also expressed his inability to state as to whether
anybody had beaten up accused no.11 Eknath and accused
no.12 Giridhar and how they sustained injuries.
41. The steadfast refusal of the prosecution witnesses to
accede to the position that the accused had also sustained
injuries, according to the learned Senior Counsel, leads to an
inescapable inference that the prosecution witnesses are not
stating the truth on a most vital aspect of the matter. What
exacerbates the situation, according to Mr. Gupte, was the
candor with which Suresh Jadhav (PW-18), the Investigating
Offcer, deposed that despite having noticed the injuries on the
person of accused no.1 Prakash, accused no.11 Eknath and
accused no.12 Giridhar, he did not investigate as to how the
accused sustained those injuries. Thus, the non-explanation of
CRIAPPEAL-517-2015-J-.DOC
the injuries on the person of the accused is fatal to the
prosecution, urged Mr. Gupte.
42. In order to lend support to the aforesaid submission a
strong reliance was placed on the judgment of the Supreme
Court in the case of Ram Narain and others vs. State of Uttar
Pradesh1, wherein it was observed that the absence of any
explanation with regard to the injuries on the accused is
certainly an infrmity in the case of the prosecution which
cannot be lost sight of but it must be remembered that generally
the witnesses are anxious to suppress any injury which might
have been inficted by anyone from the complainant party. In
the facts of the said case, it was further observed that the very
fact that the eye witnesses therein did not mention anything
about the injuries found on the person of Ramnarayan (accused
therein) makes it unsafe to rely on their evidence completely
unless independent corroboration is available.
43. The nature of the obligation on the prosecution to explain
the injuries on the person of the accused, which appear to have
been sustained in the same occurrence, and the consequences
which follow the failure of the prosecution to explain those
injuries, were illuminatingly postulated by the Supreme Court
11973 SCC (Cri.) 241.
CRIAPPEAL-517-2015-J-.DOC
in the case of Lakshmi Singh and others vs. State of Bihar, 2 in
the following words:
"In a murder case, the non-explanation of the injuries
sustained by the accused at about the time of the occurrence
or in the course of altercation is a very important
circumstance from which the Court can draw the following
inferences:
(1) that the prosecution has suppressed the genesis
and the origin of the occurrence and has thus not presented
the true version:
(2) that the witnesses who have denied the presence of
the injuries on the person of the accused are lying on a most
material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which
explains the injuries on the person of the accused it is
rendered probable so as to throw doubt on the prosecution
case. AIR 1968 SC 1281 and AIR 1975 SC 1674.
The omission on the part of the prosecution to explain
the injuries on the person of the accused assumes much
greater importance where the evidence consists of interested
or inimical witnesses or where the defence gives a version
which competes in probability with that of the prosecution
one."
44. It is trite that the ground of non-explanation of injuries on
the person of the accused cannot be resorted to as a ritualistic
formula to throw the prosecution overboard. The nature of the
injuries on the person of the accused is of critical signifcance.
If the injuries are of minor and superfcial nature, the
prosecution is not enjoined to offer explanation in respect of
those injuries. Conversely, if the injuries sustained in the
course of same occurrence by the accused are of serious nature
the prosecution is expected to offer a plausible explanation.
2AIR 1976 Supreme Court 2263.
CRIAPPEAL-517-2015-J-.DOC
Non-explanation of injuries assumes signifcance where the
evidence is of partisan and interested nature. If the evidence,
on the other hand, is consistent, inspiring and disinterested the
non-explanation of the injuries on the person of the accused
does not impair the prosecution. Moreover, the non-explanation
of injuries assumes importance where the defence offers an
explanation which competes in probability with that of the
prosecution. In that eventuality, a reasonable doubt is raised
about the veracity of the prosecution.
45. A proftable reference in this context can be made to a
Three Bench judgment of the Supreme Court in the case of
Takhaji Hiraji vs. Thakore Kubersingh Chamansingh & ors. 3,
wherein the Supreme Court expounded the legal position. The
observations in paragraph no.17 are instructive: they read as
under:
"17. The frst question which arises for consideration is
what is the effect of non-explanation of injuries sustained by
the accused persons. In Rajendra Singh & Ors. Vs. State of
Bihar, (2000) 4 SCC 298, Ram Sunder Yadav & Ors. Vs. State
of Bihar, (1998) 7 SCC 365 and Viayee Singh & Ors. Vs. State
of U.P., (1990) 3 SCC 190, all 3-Judges Bench decisions, the
view taken consistently is that it cannot be held as a matter of
law or invariably a rule that whenever accused sustained an
injury in the same occurrence, the prosecution is obliged to
explain the injury and on the failure of the prosecution to do
so the prosecution case should be disbelieved. Before non-
explanation of the injuries on the person of the accused
persons by the prosecution witnesses may affect the
prosecution case, the court has to be satisfed of the existence
of two conditions : (i) that the injury on the person of the
3(2001) 6 SCC 145.
CRIAPPEAL-517-2015-J-.DOC
accused was of a serious nature; and (ii) that such injuries
must have been caused at the time of the occurrence in
question. Non-explanation of injuries assumes greater
signifcance when the evidence consists of interested or
partisan witnesses or where the defence gives a version which
competes in probability with that of the prosecution. Where
the evidence is clear cogent and credit worthy and where the
Court can distinguish the truth from falsehood the mere fact
that the injuries on the side of the accused persons are not
explained by the prosecution cannot by itself be a sole basis
to reject the testimony of the prosecution witnesses and
consequently the whole of the prosecution case."
(emphasis supplied)
46. On the aforesaid touchstone, reverting to the facts of the
case, in our considered view, the ground of non-explanation of
the injuries on the person of the accused falls fat on all counts.
Firstly, the injuries are of simple nature. None of the accused
had suffered any grievous injury on any vital parts of the body.
Secondly, there was a crowd and the injuries found on the
person of accused no.1 Prakash and accused no.12 Giridhar
were quite possible in a jostling or scuffe. Thirdly, apart from a
general explanation that a scuffe ensued all of a sudden, the
accused have not pressed into service a version which competes
in probability with that of the prosecution. It was not suggested
to any of the prosecution witnesses that the informant party
was the aggressor, any of its members was armed with a
weapon and that the members of the informant party assaulted
accused no.1 Prakash, accused no.11 Eknath and accused no.12
Giridhar. Thus, the mere fact that simple abrasion and bruises
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were found on the persons of the accused for which the
prosecution witnesses could not account for, is not a sturdy
enough factor to sustain an inference that the prosecution has
suppressed the genesis of the occurrence. Nor the injured
witnesses can be discredited on that count.
47. It was next urged that the evidence of Nivruttti (PW-2) and
Sudhir (PW-3), the star witnesses for the prosecution, does not
merit reliance as their statements under Section 161 of the Code
were recorded belatedly. Nivrutti (PW-2) and Sudhir (PW-3)
claimed that they were admitted in Millennium Hospital on 7 th
April, 2012. However, their statements were frstly recorded on
23rd April, 2012, followed by supplementary statements on 25 th
May, 2012 and the statements before the learned Magistrate
under Section 164 of the Code, on 20th June 2012. This delay of
more than 15 days in recording the statements of Nivrutti (PW-
2) and Sudhir (PW-3), when the said witnesses were allegedly
critically injured, is inexplicable. Moreover, the half-hearted
endeavor of the prosecution to account for the delay on the
premise that the witnesses were not in a condition to give the
statement is belied by the evidence of prosecution witnesses
especially Dr. Tambe (PW-8). In the light of the inimical
relationship between the parties, which had its genesis in
CRIAPPEAL-517-2015-J-.DOC
political rivalry, this inordinate and unexplained delay,
according to the learned Senior Counsel, cannot be said to be
inconsequential or immaterial. This delay erodes the credibility
of their testimony, urged Mr. Gupte.
48. In order to bolster up the aforesaid submission, reliance
was sought to be placed on a judgment of the Supreme Court in
the case of Maiku and others vs. State of U.P4.
49. By a catena of judgments, it is well settled that mere delay
in recoding the statements of the witnesses, by itself, does not
render the prosecution case suspect. What impairs the
prosecution is inordinate and unexplained delay. What has to
be seen is whether there were concomitant circumstances which
indicate that the Investigating Offcer was deliberately marking
his time so as to determine the shape to be given to the
prosecution case. Thus, it is held that the Investigating Offcer
should be specifcally asked about the causes for delay in
recording the statements of the witnesses and provided with an
opportunity to offer explanation. If the Investigating is not
specifcally confronted with the aspect of delay, the defence
cannot draw any mileage from the fact of mere delay.
41989 Supp (1) SCC 25.
CRIAPPEAL-517-2015-J-.DOC
50. A useful reference in this context can be made to the
judgment of the Supreme Court in the case of State of U. P. vs.
Satish,5 wherein the Supreme Court has observed as under:
"18. As regards delayed examination of certain
witnesses, this Court in several decisions has held that
unless the Investigating offcer is categorically asked as to
why there was delay in examination for the witnesses the
defence cannot gain any advantage therefrom. It cannot be
laid down as a rule of universal application that if there is
any delay in examination of a particular witness the
prosecution version become suspect. It would depend upon
several factors. If the explanation offered for the delayed
examination is plausible and acceptable and the court
accepts the same as plausible, there is no reason to interfere
with the conclusion [See Ranbir and Ors. v. State of Punjab,
AIR (1973) SC 1409, Bodhraj @ Rodha and Ors. v. State of
Jammu and Kashmir, [2002] 8 SCC 45 and Banti @ Guddu v.
State of M.P., [2004] 1 SCC 414.]
19. The High Court has placed reliance on a decision
of this Court in Ganesh Bhayan Patel and Anr. v. State of
Maharashtra, [1978] 4 SCC 371. A bare reading of the fact
situation of that case shows that the delayed examination by
I.O. was not the only factor which was considered to be
determinative. On the contrary it was held that there were
catena of factors which when taken together with the delayed
examination provided basis for acquittal.
20. It is to be noted that the explanation when
offered by I.O. on being questioned on the aspect of delayed
examination, by the accused has to be tested by the Court on
the touchstone of credibility. If the explanation is plausible
then no adverse inference can be drawn. On the other hand,
if the explanation is found to be implausible, certainly the
Court can consider it to be one of the factors to affect
credibility of the witnesses who were examined belatedly. It
may not have any effect on the credibility of prosecution's
evidence tendered by the other witnesses."
51. In the light of the aforesaid exposition of legal position,
reverting to the facts of the case, it is evident that, indeed,
signifcant interval of time had elapsed between the day of
5(2005) 3 SCC 114.
CRIAPPEAL-517-2015-J-.DOC
occurrence and the recording of the statements of the
witnesses. The learned APP attempted to salvage the position by
submitting that the critical condition in which the injured
witnesses Nivrutti (PW-2) and Sudhir (PW-3) were then found,
operated as a constraint in recording their statements. Reliance
was sought to be placed on the testimony of Siddharth Shidne
(PW-16), the then in-charge Police Inspector, Rasayani Police
Station.
52. Siddharth (PW-16) endeavoured to impress upon the Court
that on 8th April, 2012 pursuant to an intimation from
Superintendent of Police, Raigad, he had visited Millennium
Hospital, Seawood, Navi Mumbai to record the statements of
Nivrutti (PW-2) and Sudhir (PW-3). According to Siddharth (PW-
16), the medical offcer opined that the witnesses were unable to
give statement. A report bearing the endorsement of the
medical offcer (Exhibit-145) came to be proved in the evidence
of Siddharth (PW-16). He claimed to have visited the Millennium
Hospital on 10th, 13th and 15th April, 2012, on which days, the
medical offcer opined that the witnesses were not in a condition
to give statement. According to Siddharth (PW-16), Mr. Prasad
Patil, a police personnel visited the hospital on 11 th April, 2012
but the witnesses were stated to be not ft to give the statement.
CRIAPPEAL-517-2015-J-.DOC
Ultimately, Siddharth Shinde (PW-16) claimed to have visited
Millennium Hospital on 23rd April, 2012 and recorded the
statements of the witnesses.
53. Siddharth Shinde (PW-16) candidly conceded in the cross-
examination that when he met the witnesses on 8 th and 10th
April, 2012, both of them were conscious. He further conceded
that he had met Dr. Tambe (PW-8), the treating doctor on the
very frst day i.e. 7th April, 2012. Siddharth (PW-16) went on to
admit in clear and unequivocal terms that they could not record
the statements of the witnesses for the only reason that they
were not in a position to talk and in support of which there was
no evidence on record.
54. Dr. Tambe (PW-8), the consulting surgeon, on his part,
informed the Court that on the day of occurrence the history of
injuries i.e. stabbing, was narrated by the injured. Dr. Tambe
(PW-8) fairly admitted that the progress record (Exhibit-92) of
Nivrutti (PW-2), reveals that the general condition of Nivrutti
(PW-2) was stable and fair. From 8th April, 2012, onwards the
vital parameters of Nivrutti (PW-2) were normal. Dr. Tambe (PW-
8) affrmed in no uncertain terms that from the date of
admission till discharge Nivrutti (PW-2) was conscious. Police
did not make any contact with him for the purpose of recording
CRIAPPEAL-517-2015-J-.DOC
of the statement of Nivrutti (PW-2). According Dr. Tambe (PW-
8), Sudhir (PW-3) was conscious when he was admitted in the
hospital on 7th April, 2012 and continued to be conscious
throughout his stay in the hospital. His vital parameters were
found normal throughout. His general condition was fair.
55. In the face of the aforesaid evidence of the treating doctor,
the claim of Siddharh (PW-16) that the statements of the
witnesses could not be recorded as they were not in a ft
condition does not inspire confdence. Moreover, the
prosecution did not examine the medical offcers, who made the
endorsements on the reports Exhibit nos.145, 146, 147, 148 and
149. The examination of those medical offcers was imperative
in the face of the evidence of Dr. Tambe (PW-8), the treating
doctor, to the contrary. Even otherwise, we fnd that in the
endorsement on the report (Exhibit-148) dated 16 th April, 2012
the words, "but presently due to pain patient not
cooperating, hence statement can be taken tomorrow", were
inserted. Even if this endorsement on the report (Exhibit-148)
is taken at par, Nivutti (PW-2) was in a condition to give a
statement at least on 17th April, 2012.
56. We, thus, fnd that the criticism advanced against delayed
recording of the statement of Nivrutti (PW-2) and Sudhir (PW-3)
CRIAPPEAL-517-2015-J-.DOC
is well merited. The endeavor of the prosecution to account for
the delay by putting forth the excuse of their medical condition,
in the backdrop of the evidence on record, is unworthy of
countenance. The pivotal question is of consequences which the
delay entails.
57. The fact that Nivrutti (PW-2) and Sudhir (PW-3) are injured
witnesses cannot be lost sight of. Indisputably Nivrutti (PW-2)
and Sudhir (PW-3) sustained grievous stab injuries which could
have proved fatal. There is evidence to indicate that Nivrutti
(PW-2) and Sudhir (PW-3) were initially shifted to Amrita
Nursing Home, Bhuvaneshwar and Rural Hospital, Roha,
respectively, before they were brought at Millennium Hospital for
better management. The presence of Nivrutti (PW-2) and Sudhir
(PW-3) at the scene of occurrence is thus fortifed by the factum
of injuries sustained by them. No endeavor was made on behalf
of the accused to question the very presence of Nivrutti (PW-2)
and Sudhir (PW-3) at the scene of occurrence. Nor a serious
effort was made to contest the fact that that Nivrutti (PW-2) and
Sudir (PW-3) sustained injuries in the said occurrence.
Conversely, an effort was made to draw home the point that the
deceased and the injured sustained injuries in the scuffe which
broke out in the premises of Bhavanimata temple.
CRIAPPEAL-517-2015-J-.DOC
58. Viewed through the aforesaid prism, in our considered
opinion, the aspect of delay in recording their statements, in the
case at hand, does not impair the prosecution case to the extent
that their presence at the scene of occurrence is itself rendered
in the corridor of uncertainty. Undoubtedly, the delay puts the
Court on guard. Their evidence is required to be appreciated
with greater care and caution and in the light of the previous
statements, probabilities of the case and other evidence which
corroborates or contradicts their version.
59. The learned Senior Counsel further urged that the fact
that the informant party was inimically disposed towards the
accused, especially accused no.1 Prakash, who was stated to be
the leader of the PWP, deserves to be kept in view. The desire to
implicate as many persons from the rival group as possible is
potent in cases of group rivalry. Therefore, a greater scrutiny is
warranted.
60. To bolster up the aforesaid submission reliance was placed
on a judgment of the Supreme Court in the case of Eknath
Ganpat Aher and others vs. State of Maharashtra and others 6,
wherein it was enunciated that, it is an accepted proposition
that in the case of group rivalries and enmities, there is a
6(2010) 6 SCC 519.
CRIAPPEAL-517-2015-J-.DOC
general tendency to rope in as many persons as possible as
having participated in the assault. In such situations, the
courts are called upon to be very cautious and sift the evidence
with care. When after a close scrutiny of the evidence, a
reasonable doubt arises in the mind of the court with regard to
the participation of any of those who have been roped in, the
court would be obliged to give the beneft of doubt to them.
61. Enmity is a double edged tool. On the one hand, it
furnishes motive for the crime. On the other hand, it
constitutes a driving factor in leveling false accusation.
However, the evidence of witnesses cannot be jettisoned away on
the ground that they were inimically disposed towards the
accused party. The inimical nature of the relationship warrants
the evaluation of the evidence with greater care and deeper
scrutiny.
62. In the case at hand, it becomes evident that, the political
move of the informant party to switch over to NCP had caused a
vertical rift. The informant party was in minority; 17 families.
PWP had, on the contrary, greater affliation; rest of the families
of the village. The battle transgressed political arena and the
informant party was subjected to social boycott. There were
minor skirmishes in the past. The fash point was reached
CRIAPPEAL-517-2015-J-.DOC
when the members of PWP declined to allow the members of the
informant party to participate in the palanquin procession of
goddesses Bhavanimata. Thus, it can be safely assumed that
the relationship between the informant party and the accused
had reached inimical proportion.
63. In the aforesaid setting, the pivotal question which
wrenches to the fore is, whether the evidence of injured
witnesses allures confdence?
64. Mr. Gupte, the learned Senior Counsel, urged that the
evidence of the injured witnesses is highly unreliable as each of
the injured has not deposed to the circumstances in which the
other injured sustained the injuries, though the assault was
allegedly perpetrated simultaneously at the same time and
place. To this end, reliance was placed on an admission in the
cross-examination of Nivrutti (PW-2) that he had not seen the
assault mounted upon any other person apart from him and the
deceased. It was brought in the cross-examination of Sudhir
(PW-3) that his statement before the police does not name the
persons who allegedly assaulted Nivrutti (PW-2). Prabhakar
Petkar (PW-4), on the other hand, claimed to have witnessed the
assault upon Sudhir (PW-3) only, and sustained the injuries
when he went to Sudhir's rescue.
CRIAPPEAL-517-2015-J-.DOC
65. In the light of the aforesaid evidence, a strenuous effort
was made to draw home the point that, had the injured been
the witnesses of truth they would have been able to depose to
the circumstances in which all the injured sustained the
injuries. We are afraid to accede to this submission. In an
incident, like the present one, where a swollen majority mounts
attack on few persons, it would be rather naive to expect that
each of the injured would be in a position to witness as to how
the co-injured was assaulted. In the normal circumstances, the
attention of the persons would be drawn to the frst act of
assault. Thereafter, it may not be possible for the injured
witnesses to observe the incident in minute detail qua the other
injured when multiple groups of people mount the attack, as if
the entire incident is captured by a recording device. The
omission of the witnesses to state as to how each of the co-
injured sustained injuries, in the facts of the instant case, does
not impeach the credibility of their claim.
66. Mr. Gupte, nextly urged that the testimony of the injured
witnesses suffers from serious infrmity on account of material
omissions and improvements. What exacerbates the situation,
according to Mr. Gupte, is the identical omissions and
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improvements from which the testimony of Nivrutti (PW-2) and
Sudhir (PW-3), the star prosecution witnesses, suffers.
67. Nivrutti (PW-2) conceded that he did not state before the
police that on the day of occurrence Mr. Sharad, Mr. Shekhar,
Mr. Umaji, Mr. Suresh Khandekar, Mr. Dashrath, Sandeep and
Sudam Khandekar (the members of NCP) were present. A
further omission was elicited in the cross-examination of
Nivrutti (PW-2) that he did not state before the police on 23 rd
April, 2012 and before the Magistrate on 20 th June, 2012 that at
the time of the occurrence he, Shashikant Dant (PW-1),
Nathuram Khandekar (the deceased), Prabhakar Petkar (PW-4)
and Sudhir Khandekar (PW-3) and other people were present in
the sabhamandap (meeting hall), adjacent to the temple and the
accused raised the cry, "catch, stab and fnish them all" ( dhara,
saale bhetlet, tyana bhoskun khalas kara). Another omission to
the effect that accused no.5 Chandrakant, accused no.9
Madhukar, accused no.11 Eknath, accused no.12 Giridhar,
accused no.13 Sonu, accused no.14 Dilip and accused no.16
Shailesh were present in the temple was brought out in the
cross-examination of Nivrutti (PW-2) qua the statement before
the police dated 23rd April, 2012 and before the Magistrate dated
20th June, 2012.
CRIAPPEAL-517-2015-J-.DOC
68. As regards the weapon of assault Nivrutti (PW-2)
categorically asserted that he was assaulted by two sharp edged
weapons. He conceded that the sword-stick (Article-11 gupti) is
a one sided sharp edged weapon. A contradiction was brought
out in the cross-examination of Nivrutti (PW-2) that he did state
before the police on 23rd April, 2012 that he was assaulted by
means of a 'knife' and only in the supplementary statement
dated 25th May, 2012, did he disclose, for the frst time, that he
was assaulted by sword-stick (gupti). In the context of the situs
of the injury, Nivrutti (PW-2) conceded in no uncertain terms
that none of his previous statement fnds mention of the fact
that he was assaulted on his right armpit.
69. In the cross-examination of Nivrutti (PW-2) a contradiction
was also elicited to the effect that when he entered into the
temple at 3.30 pm. he noticed that accused no.4 Vasant,
accused no.3 Arjun and accused no.15 Somnath had caught
hold of Nathuram. Nivrutti (PW-2) blamed his memory to state
as to whether he had stated before the police in the
supplementary statement dated 25th May, 2012 that he was
caught hold of by accused no.15 Somnath. He attempted to
salvage the position by affrming that he might have forgotten to
state the same.
CRIAPPEAL-517-2015-J-.DOC
70. An omission regarding the presence of Sharad Dant and
six others (members of NCP) in the temple before the occurrence
was elicited in the cross-examination of Sudhir (PW-3) also.
Sudhir (PW-3) candidly conceded that he did not state before the
police in the statement dated 23rd April, 2012 that the accused
gave exhortation "catch, stab and fnish them all" ( dhara, saale
bhetlet, tyana bhoskun khalas kara). Sudhir (PW-3), however,
attempted to offer an explanation by asserting that he omitted to
mention the said fact as he was hospitalized. Sudhir (PW-3)
went on to admit that till 23 rd April, 2012, he did not tell
anybody as to who had assaulted him.
71. Laying emphasis on the improvement as regards the situs
of injury on the person of Nivrutti (PW-2), it was submitted that
the testimony of Nivrutti (PW-2) cannot be relied upon
unhesitatingly. The omission is in respect of the specifc word,
'armpit'. As indicated above, Dr. Dhruv (PW-7) who had
examined Nivrutti (PW-2) at Amrita Nursing Home at
Bhuvaneshwar, had also noticed, wound in 'right Axilla' just
behind the anterior axillarllry fold about 2 cm. X 0.5 cm. deep."
Dr. Tambe (PW-8) informed the Court that he had found a stab
injury on the right side of the chest. The medical offcers noted
the aforesaid injury on the person of Nivrutti (PW-2) within few
CRIAPPEAL-517-2015-J-.DOC
hours of the occurrence. In the aforesaid backdrop, the
specifcation by Nivrutti (PW-2) that he had sustained an injury
on the armpit, does not detract materially from the veracity of
his claim. Moreover, Dr. Dhruv (PW-7) had in terms recorded in
the injury certifcate (Exhibit-84) that an injury was noted on
the right Axilla just posterior to anterior axillallry fold. In the
context of the aforesaid medical evidence, the omission to state
that the injury was sustained on the 'armpit' specifcally, cannot
be exalted to such a pedestal that the whole testimony of
Nivrutti (PW-2) becomes suspect.
72. Mr. Gupte, the learned Senior Counsel, mounted a serious
attack on the testimony of Dr. Dhruv (PW-7) and made a
strenuous effort to draw home the point that the prosecution
has subsequently fabricated the medical record. The claim of
Dr. Dhruv (PW-7) that in the injury certifcate (Exhibit-84), it
was inadvertently mentioned that the probable weapon was
'blunt heavy object', was assailed as unworthy of credence.
Inviting the attention of the Court to the manner in which Dr.
Dhruv (PW-7) fared in the cross-examination, it was urged that
the said explanation is specious.
73. Dr. Dhruv (PW-7) conceded in the cross-examination that
he became aware of the error in the certifcate (Exhibit 84) only
CRIAPPEAL-517-2015-J-.DOC
on the day he deposed before the Court. The medical certifcate
(Exhibit-84) is based on contemporaneous record. He went to
concede that CLW will never be stab injury. There are certain
incised wounds which look like CLW because they were caused
by blunt weapon. In the record maintained by the hospital, it
was nowhere mentioned that any of the injuries was an incised
wound nor it was mentioned that those were stab injuries.
74. Indisputably, the injury certifcate (Exhibit-84) records
that all four injuries are CLW. The frst three injuries are
recorded as having been caused by 'blunt and heavy object'. Yet,
the claim of Dr. Dhruv (PW-7) that the probable weapon of
offence was inadvertently mentioned as 'hard and blunt object',
in the light of the nature of the injuries and other evidence
cannot be said to be unsustainable. The evidence of Dr. Tambe
(PW-8) provides a formidable dyke. Dr. Tambe (PW-8), the
consulting surgeon, deposed in clear and explicit terms that
Nivrutti (PW-2) was admitted in Millennium Hospital with
alleged history of assault by means of knife. He claimed to have
found stab injuries over abdomen, on the right side of the
chest and left renal angle. The operation report (Exhibit-91)
also records that stab injuries were noted on the aforesaid parts
of the body of Nivrutti (PW-2). In the aforesaid view of the
CRIAPPEAL-517-2015-J-.DOC
matter, we are persuaded to hold that the discrepancy in the
injury certifcate (Exhibit-84) regarding the nature of the injury
as well as the probable weapon of offence appeared to be on
account of inadvertence rather than a refection of conscious of
act and contemporaneous record.
75. The next set of omissions regarding the presence of
Mr. Sharad and six other members of NCP in the sabhamandap
(meeting hall) also does not seem to be of material signifcance.
The accused have endeavoured to demonstrate that Mr. Suresh
Jadhav (PW-18), the investigating offcer, had convened a
meeting of the members of NCP and PWP, led by accused no.1
Prakash, at a considerable distance from the Bhavanimata
temple and, therefore, accused no.1 Prakash, in particular,
could not have participated in the alleged assault and the
investigating offcer and other witnesses had no opportunity to
observe the incident, in general. It is not the case that the
meeting near the house of the Police Patil of the village was not
held by Suresh Jadhav (PW-18), the investigating offcer. Even
otherwise, the fact that Mr. Sharad and other six members of
the NCP were initially present in the Bhavanimata temple and
later on went to attend the said meeting does not bear upon the
core of the occurrence. The omission to state the said fact thus
CRIAPPEAL-517-2015-J-.DOC
does not impinge upon the credibility of the prosecution
witnesses.
76. The omission as regards the presence of accused no. 5
Chandrakant, accused no.9 Madhukar, accused no.11 Eknath,
accused no.12 Giridhar, accused no.13 Sonu, accused no.14
Dilip and accused no.16 Shailesh, brought out in the cross-
examination of Nivrutti (PW-2), however, is of material
signifcance. The fact of presence or otherwise of the
abovenamed accused bears upon the question as to whether
they were the members of the unlawful assembly and committed
acts or omissions in the prosecution of the common object of
the unlawful assembly. The omission regarding exhortation
having been given by the accused, "catch, stab and fnish them
all" (dhara, saale bhetlet, tyana bhoskun khalas kara) elicited in
the cross-examination of Nivrutti (PW-2) and Sudhir (PW-3) is
also of critical salience. This omission is required to be
appreciated in the determination of the crucial issue as to
whether there was an unlawful assembly, and the offences were
committed in prosecution of the common object of such an
unlawful assembly.
77. It is imperative to note that it is a common ground that
there was a crowd of persons in the Bhavanimata temple. As to
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how the commotion commenced is a matter which constitutes
a vital part of the occurrence. Therefore, the omission to
state that the accused raised the cry 'to catch, stab and
fnish the members of the informant party', cannot be brushed
aside lightly. In this setting of the matter, we propose
to appreciate the thrust of the submission on behalf of
the accused that there was no unlawful assembly and
the offences were not committed in prosecution of the
common object of the unlawful assembly and, thus, the accused
could not have been roped in by invoking Section 149 of
the Code.
78. Mr. Gupte mounted a multi-fold attack on the fndings of
the learned Sessions Judge on the aspect existence of the
unlawful assembly and the commission of the offences in
prosecution of its common object. First and foremost, it was
urged with a degree of vehemence that the assembly in the
Bhavanimata temple could not have been termed unlawful by
any stretch of imagination. Amplifying the submission it was
urged that there is no shred of evidence to show that the huge
crowd of persons, which had gathered at the temple, entertained
any of the objects specifed in Section 141 of the Code. The
assembly was not animated by any of the proscribed objects,
CRIAPPEAL-517-2015-J-.DOC
much less common to the members of the said assembly. Mr.
Gupte further urged that though indisputably, in law, a lawful
assembly may subsequently turn unlawful, yet, in the facts of
the instant case, there is not an iota of evidence to indicate that
the assembly was unlawful at the inception or the common
object was developed eo instante. Thirdly, it was strenuously
submitted that on the anvil of the well established principles,
which govern the exercise of culling out the common object of
the assembly, like the overt acts of the members, language used,
the arms carried and the behaviour of the members, the
conduct of the accused falls neither in the frst nor in the
second part of Section 149 of the Code. The learned Sessions
Judge, according Mr. Gupte, completely misdirected himself in
applying the principle of constructive liability.
79. To lend support to the aforesaid submissions, Mr. Gupte
placed strong reliance on the judgments of the Supreme Court
in the cases of State of Punjab vs. Sanjeev Kumar and others7,
Gangadhar Behera and others vs State of Orissa8, Miaku
(supra), Eknath Aher (supra), Bannareddi and other vs. State of
Karnataka and others9, Joseph vs. State10, Vinubhai
7 AIR 2007 SCC 2430.
82003 SCC (Cri.) 32.
9(2018) 5 SCC 790.
10(2018) 12 SCC 283.
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Ranchhodbhai Patel vs. Rajivbhai Dudababhai Patel11, Amrika
Bai vs. State of Chhattisgarh12 and Bal Mukund Sharma vs.
State of Bihar.13
80. Since the legal position on the aspect of invocation and
applicability of Section 149 of the Penal Code is well settled, we
do not deem it necessary to refer to all of the aforesaid
pronouncements in detail. It would be suffce to make a
proftable reference to the judgments of the Supreme Court in
the cases of State of Punjab (supra), Vinubhai Patel (supra) and
Joseph (supra).
81. In the case of State of Punjab (supra), the Supreme Court
expounded the nature of the constructive criminality under
Section 149, the factors which are germane in drawing inference
about the common object, how common object is distinct from
common intention and the subtle yet signifcant distinction
between two parts of Section 149 of the Penal Code. The
observations of the Supreme Court in paragraph nos.8 to 10 are
instructive and thus extracted below:
"8. The pivotal question is applicability of Section 149 IPC.
Said provision has its foundation on constructive liability
which is the sine qua non for its operation. The emphasis is
on the common object and not on common intention. Mere
11(2018) 7 SCC 743.
12 (2019) 4 SCC 620.
13(2019) 5 SCC 469.
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presence in an unlawful assembly cannot render a person
liable unless there was a common object and he was
actuated by that common object and that object is one of
those set out in Section 141. Where common object of an
unlawful assembly is not proved, the accused persons cannot
be convicted with the help of Section 149. The crucial
question to determine is whether the assembly consisted of
fve or more persons and whether the said persons
entertained one or more of the common objects, as specifed
in Section 141. It cannot be laid down as a general
proposition of law that unless an overt act is proved against a
person, who is alleged to be a member of unlawful assembly,
it cannot be said that he is a member of an assembly. The
only thing required is that he should have understood that
the assembly was unlawful and was likely to commit any of
the acts which fall within the purview of Section 141. The
word 'object means' the purpose or design and, in order to
make it 'common', it must be shared by all. In other words,
the object should be common to the persons, who compose
the assembly, that is to say, they should all be aware of it and
concur in it. A common object may be formed by express
agreement after mutual consultation, but that is by no
means necessary. It may be formed at any stage by all or a
few members of the assembly and the other members may
just join and adopt it. Once formed, it need not continue to
be the same. It may be modifed or altered or abandoned at
any stage. The expression 'in prosecution of common object'
as appearing in Section 149 have to be strictly construed as
equivalent to 'in order to attain the common object'. It must
be immediately connected with the common object by virtue
of the nature of the object. There must be community of
object and the object may exist only up to a particular stage,
and not thereafter. Members of an unlawful assembly may
have community of object up to certain point beyond which
they may differ in their objects and the knowledge, possessed
by each member of what is likely to be committed in
prosecution of their common object may vary not only
according to the information at his command, but also
according to the extent to which he shares the community of
object, and as a consequence of this the effect of Section 149,
IPC may be different on different members of the same
assembly.
9. 'Common object' is different from a 'common intention'
as it does not require a prior concert and a common meeting
of minds before the attack. It is enough if each has the same
object in view and their number is fve or more and that they
act as an assembly to achieve that object. The 'common
object' of an assembly is to be ascertained from the acts and
language of the members composing it, and from a
consideration of all the surrounding circumstances. It may
be gathered from the course of conduct adopted by the
members of the assembly. What the common object of the
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unlawful assembly is at a particular stage of the incident is
essentially a question of fact to be determined, keeping in
view the nature of the assembly, the arms carried by the
members, and the behaviour of the members at or near the
scene of the incident. It is not necessary under law that in all
cases of unlawful assembly, with an unlawful common
object, the same must be translated into action or be
successful. Under the Explanation to Section 141, an
assembly which was not unlawful when it was assembled,
may subsequently become unlawful. It is not necessary that
the intention or the purpose, which is necessary to render an
assembly an unlawful one comes into existence at the outset.
The time of forming an unlawful intent is not material. An
assembly which, at its commencement or even for some time
thereafter, is lawful, may subsequently become unlawful. In
other words it can develop during the course of incident at
the spot eo instante.
10. Section 149, IPC consists of two parts. The frst part of
the section means that the offence to be committed in
prosecution of the common object must be one which is
committed with a view to accomplish the common object. In
order that the offence may fall within the frst part, the
offence must be connected immediately with the common
object of the unlawful assembly of which the accused was
member. Even if the offence committed is not in direct
prosecution of the common object of the assembly, it may yet
fall under Section 141, if it can be held that the offence was
such as the members knew was likely to be committed and
this is what is required in the second part of the section. The
purpose for which the members of the assembly set out or
desired to achieve is the object. If the object desired by all the
members is the same, the knowledge that is the object which
is being pursued is shared by all the members and they are
in general agreement as to how it is to be achieved and that
is now the common object of the assembly. An object is
entertained in the human mind, and it being merely a mental
attitude, no direct evidence can be available and, like
intention, has generally to be gathered from the act which
the person commits and the result therefrom. Though no
hard and fast rule can be laid down under the circumstances
from which the common object can be culled out, it may
reasonably be collected as noted above from the nature of the
assembly, arms carried and behaviour at or before or after
the scene of occurrence. The word 'knew' used in the second
limb of the section implies something more than a possibility
and it cannot be made to bear the sense of 'might have been
known'. Positive knowledge is necessary. When an offence is
committed in prosecution of the common object, it would
generally be an offence which the members of the unlawful
assembly knew was likely to be committed in prosecution of
the common object. That, however, does not make the
converse proposition true; there may be cases which would
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come within the second part but not within the frst part.
The distinction between the two parts of Section 149 cannot
be ignored or obliterated. In every case it would be an issue
to be determined, whether the offence committed falls within
the frst part or it was an offence such as the members of the
assembly knew to be likely to be committed in prosecution of
the common object and falls within the second part.
However, there may be cases which would be within frst part
of the offences committed in prosecution of the common
object would also be generally, if not always, within the
second part, namely, offences which the parties knew to be
likely committed in the prosecution of the common object.
(See Chikkarange Gowda and others v. State of Mysore AIR
1956 SC 731)."
82. In the case of Vinubhai Patel (supra) the distinction
between Sections 141, 146, 148 and 149 of the Code, and the
foundational requirement for the existence of an unlawful
assembly were illuminatingly postulated. The observations in
paragraph nos.30 to 32 of the judgment are material. They read
as under:
"30. It can be seen from the above, Sections 141, 146 and
148 create distinct offences. Section 149 only creates a
vicarious liability. However, Sections 146, 148 and 149
contain certain legislative declarations based on the doctrine
of vicarious liability. The doctrine is well known in civil law
especially in the branch of torts, but is applied very
sparingly in criminal law only when there is a clear
legislative command. To be liable for punishment under any
one of the provisions, the fundamental requirement is the
existence of an unlawful assembly as defned under Section
141 made punishable under Section143 IPC.
31. The concept of an unlawful assembly as can be seen
from Section 141 has two elements;
(i) The assembly should consist of at least fve
persons; and
(ii) They should have a common object to commit an
offence or achieve any one of the objects enumerated
therein.
32. For recording a conclusion, that a person is (i) guilty
of any one of the offences under Sections 143, 146 or 148
CRIAPPEAL-517-2015-J-.DOC
or (ii) vicariously liable under Section 149 for some other
offence, it must frst be proved that such person is a
member of an "unlawful assembly" consisting of not less
than fve persons irrespective of the fact whether the
identity of each one of the 5 persons is proved or not. If that
fact is proved, the next step of inquiry is whether the
common object of the unlawful assembly is one of the 5
enumerated objects specifed under Section 141 IPC."
83. In the case of Joseph (supra), while adverting to the
previous pronouncements of the Supreme Court, the essential
requirement for invoking the vicarious liability under Section
149 and the scope of two parts of the said section were
postulated as under:
"11. Before we consider the testimony of the
witnesses, let us consider the requirements for invoking the
vicarious liability under Section 149 IPC. Section 149 IPC
consists of two parts:
11.1 The frst part of the section means that there
exists common object and that the offence has been
committed in prosecution of the common object. In order that
the offence may fall within the frst part, the offence must be
connected immediately with the common object of the
unlawful assembly of which the accused was member.
11.2 The second part of the section means that even if
the offence committed is not in direct prosecution of the
common object of the assembly, it may yet fall under
Section149, if it can be shown that the offence was such as
the members knew was likely to be committed.
11.3 What is important in each case is to fnd out if
the offence was committed to accomplish the common object
of the assembly or was the one which the members knew to
be likely to be committed. Once the court fnds that the
ingredients of Section 149 IPC are fulflled, every person who
at the time of committing that offence was a member of the
assembly has to be held guilty of that offence. After such a
fnding, it would not be open to the court to see as to who
actually did the offensive act nor would it be open to the court
to require the prosecution to prove which of the members did
which of the above two ingredients. Before recording the
conviction under Section 149 IPC, the essential ingredients of
Section 141 IPC must be established."
CRIAPPEAL-517-2015-J-.DOC
84. It would be contextually relevant to note that Ms. Shinde,
the learned APP, on the other hand, placed a strong reliance on
the judgment of the Supreme Court in the case of Gangadhar
Behra (supra), especially paragraph nos.22 to 24 thereof. The
learned Additional Sessions Judge was of the view that the
aforesaid pronouncement governs the facts of the case. The
observations of the Supreme Court in the case of the State of
Punjab (supra) (extracted above) reiterate the enunciation in
paragraph nos.22 to 24 of the judgment in the case of
Gangadhar Behra (supra).
85. In view of the aforesaid legal position, the moot question
that wrenches to the fore is; was the assembly unlawful?. To
begin with, the nature of the assembly. Indisputably villagers
had gathered at Bhavanimata temple in large number. Though
ocular account varies on the precise number of persons yet, the
presence of more than 100 persons in the temple is, by and
large, incontestible. What warrants consideration is the
purpose and object of assembly than its numerical strength.
86. The villagers had apparently assembled in the temple to
pay obeisance to Goddess Bhavanimata and take part in the
palanquin procession. There is no evidence to indicate that the
driving factor behind the presence of the people at temple was
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other than the desire to participate in the religious
congregation. If viewed through the prism of time, place and
purpose of the initial gathering, before the occurrence, the
assembly cannot be attributed with any of the proscribed
objects.
87. The learned Sessions Judge was of the view that in the
backdrop of the evidence on record to indicate that the members
of the informant party were subjected to social boycott, they
were not allowed to take part in the procession of palanquin of
Bhavanimata and even restrained from having darshan of the
palanquin in the premises of the temple, it can be inferred that
the accused had a grudge against the members of the informant
party, and, thus, they were assaulted in prosecution of the
common object of the unlawful assembly.
88. In our view, the learned Sessions Judge had fallen in error
in allowing himself to be infuenced by the inimical nature of the
relationship and the fallout of the political move of the
informant party. Instead the attendant conduct and behaviour
of the members of the assembly ought to have received
consideration.
89. It is imperative to note that none of the injured witnesses
claimed that they were restrained from entering the
CRIAPPEAL-517-2015-J-.DOC
sabhamandap (meeting hall) by any of the accused, or for that
matter, any other member of the assembly. It was elicited in the
cross-examination of Nivrutti (PW-2) that as the police were
present in sabhamandap (meeting hall), the accused did not
oppose his presence thereat. Nor the accused asked him to
leave the sabhamandap (meeting hall). None of the injured
witnesses have deposed that an altercation ensued over their
presence in the sabhamandap (meeting hall). Conversely, they
claimed that while they were present in the sabhamandap
(meeting hall) the attack was mounted suddenly.
90. In the aforesaid context, the omission to state that the
accused gave exhortation to 'catch, stab and kill the members of
the informant party' is of material signifcance. As to how the
commotion commenced is a matter which bears upon the
entertainment of the object by the members of the assembly. In
our considered view, the prosecution witnesses could not have
missed to state that the accused gave the exhortation. The said
omission, therefore, cannot be said to be inconsequential or
immaterial. If this part of the evidence is excluded from
consideration, then there is no material which would throw light
on the words used by the members of the assembly preceding
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and accompanying the assault to betray the unlawful object
they entertained.
91. The evidence on record does not indicate that the
members of the assembly had openly carried the weapons. The
fact that the police party was already posted in the temple
premises is also required to be taken into account. The
prosecution witnesses have conceded in clear and explicit terms
that they had not seen any of the members of the assembly
armed with deadly weapon before the assault was unleashed.
Thus, on the parameter of the nature of the arms which were
carried by the members of the assembly, prior to the
occurrence, an inference that the assembly was animated with
an unlawful object, can not be sustained.
92. On a careful evaluation of the evidence on the touchstone
of the factors which are germane to determine the common
object of the unlawful assembly, we do not fnd that the accused
and the villagers had assembled at the scene of occurrence to
accomplish the common object of committing murder and
causing hurt. The applicability of the frst part of Section 149 is
thus frmly ruled out. Nor the material on record indicates that
the offences committed were such that the members of the
assembly knew likely to be committed. The purpose of the
gathering, the suddenness of the attack, single blows attributed
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to accused no.1 Prakash, accused no.2 Vaibhav, accused no.7
Sunil, accused no.9 Madhukar and accused no.11 Eknath, and
the fact that none of the witnesses deposed to have seen the
assailants were armed with respective weapons prior to the
assault render it rather unsafe to draw an inference that the
persons who had gathered at the scene of occurrence had the
positive knowledge that the offences of murder and attempt to
commit murder would be committed. The evidence on record,
thus, does not sustain a fnding that the second part of Section
149 comes into play.
93. In the totality of the circumstances, we are persuaded to
hold that the prosecution has not succeeded in establishing
that the assembly of the persons at the Bhavanimata temple at
the time of the occurrence was unlawful. Consequently
complicity of the individual accused to the extent borne out by
the evidence is required to be determined.
94. The learned Sessions Judge culled out the overt acts of
each of the accused, the weapon which they used and the
evidence in support thereof, ocular and medical, in a tabulated
statement. While determining the individual liability of the
accused we deem it appropriate to extract the said chart (in
paragraph 52 of the impugned judgment).
CRIAPPEAL-517-2015-J-.DOC
Name of The accused The The part of The witness The Doctor
the victims who caught accused body where who had of the
hold of who made the assault witnessed Medical
assault was made the incident Offcer who
with which provided the
weapon medical
treatment
Nathuram A-3 Arjun, A-1 In the Chest PW-2 PW-9 Dr.
Dattatrya A-4 Vasant Prakash, Nivrutti, Anand
Khandekar A-15 Somnath Article-8 PW-3 Sudhir Kumar
(deceased) Sura & PW-5 Singh
Sachin
Nivrutti A-8 Harish, A- A-2 On the right He himself PW-7 Dr.
Janu 17 Sudhir Vaibhav side of the Dhruv, PW-8
Khandekar Namdev with Article chest/ Dr. Uday
(PW-2) Khandekar, A- 10 Sura armpit Tambe
15 Somnath,
A-6 Daulat, A-
10 Krishna
Sudhir A-14 Dilip A-5 A-11 In the PW-4 PW-9 Dr.
Bhagwan Chandrakant, Eknath Stomach Prabhakar Anand
Khandekar A-13 Sonu, A- Article - 9 Petkar, PW-2 Kumar
(PW-3) 12 Giridhar Sura Nivrutti Singh, PW-8
Khandekar Dr. Uday
Tambe
Prabhakar A-10 Krishna A-9 On the Head He himself PW-9 Dr.
Umaji Madhukar Anand
Petkar Article - 12 Kumar
(PW-4) Tal Singh
Shashikant ----- A-6 Daulat On the Head He himself PW-9 Dr.
Laxman A-16 Anand
Dant (PW- Shailesh Kumar
1) with sticks Singh
95. First and foremost, the role attributed to the assailants.
Mr. Gupte, the learned Senior Counsel for the appellants urged
that the evidence adduced by the prosecution does not support
the role of prime assailant attributed to accused no.1 Prakash.
It was submitted that the testimony of the witnesses that
accused no.1 Prakash, alongwith few others, was called by
police inspector Suresh Jadhav (PW-18) for the meeting near the
CRIAPPEAL-517-2015-J-.DOC
house of the police patil, which was at a considerable distance
from the temple, ruled out the presence of accused no.1
Prakash at the scene of occurrence. Since accused no.1
Prakash was the leader of NCP, the prosecution witnesses have
falsely roped in Prakash, urged Mr. Gupte.
96. The submission appears attractive at the frst blush.
However, on close scrutiny the submission does not carry much
conviction. In the case at hand, the testimony of Suresh Jadhav
(PW-18) is not restricted to furnishing the details of the
investigation. It throws light on the sequence of events and the
manner in which the occurrence unfolded. Suresh Jadhav (PW-
18) informed the Court that initially accused no.1 Prakash and
other members of PWP were called near Hanuman temple.
Accused no.1 Prakash told him that the members of NCP were
allowed to have darshan of palanquin when the procession
would pass from in front of their houses. However, they would
not be allowed to join the procession. Thereafter he claimed to
have called the members of NCP near the house of the police
patil and apprised them about the stand of accused no.1
Prakash. They agreed to take darshan of the palanquin near
their houses. Suresh Jadhav (PW-18) further wants the Court
to believe that, thereafter, he held a joint meeting between the
CRIAPPEAL-517-2015-J-.DOC
members of NCP and PWP. After the joint meeting, accused no.1
Prakash and his partymen went back to the temple. He stayed
back with Shekhar Dant and others. After about 4 to 5 minutes
he heard the shouts, marle marle (beat, beat), and people
started running away. Thereupon, he claimed to have rushed to
the temple and separated the members of NCP and PWP.
97. This part of the evidence of Suresh Jadhav (PW-18) could
not be impeached despite an incisive and lengthy cross-
examination. This claim of Suresh Jadhav (PW-18) is required to
be appreciated in the light of the fact that sensing a law and
order problem, the police party had already arrived and it was
expected of the police offcer to have a dialogue with the rival
factions to avert the possible fare up. We do fnd any justifable
reason to disbelieve Suresh Jadhav (PW-18).
98. Moreover, the testimony of Nivrutti (PW-2) and Sudhir (PW-
3), the injured witnesses, on the point that accused no.1
Prakash had unleashed the deadly blow by means of knife fnds
necessary corroboration in the evidence of Sachin Chaure
(PW-5). Thus, the endeavour of the accused to throw the cloud
of doubt over the presence of accused no.1 Prakash in the
sabhamandap (meeting hall) at the time of occurrence does not
merit acceptance.
CRIAPPEAL-517-2015-J-.DOC
99. The testimony of Nivrutti (PW-2), the injured, establishes
the identity of accused no.2 Vaibhav and accused no.7 Sunil as
the assailants who caused stab injuries to him. The ocular
account is amply corroborated by medical evidence. The
contradiction regarding the weapon by means of which accused
no.7 Sunil assaulted Nivrutti (PW-2) (knife instead of sword stick
Article-7) in the context of the presence of the numerous
persons, the short duration for which the incident lasted and
infiction of a single blow by accused no.7 Sunil, does not erode
the credibility of his testimony.
100. As regards the complicity of accused no.11 Eknath, the
testimony of Sudhir (PW-3) fnds requisite support in the
evidence of Prabhakar Petkar (PW-4). Since accused no.11
Eknath allegedly sustained injuries in the course of the same
occurrence, the presence of accused no.11 Eknath at the time
and place of the occurrence can hardly be contested. Nor can
the existence of opportunity to Sudhir (PW-3) to witness the
assailant who gave the blow can be gainsaid.
101. Prabhakar Petkar (PW-4) claimed to have sustained CLW
on tempero frontal region on account of the blow by means of
tal Article 12 (cymbals) inficted by accused no.9 Madhukar. It
is true that Prabhakar Petkar (PW-4) conceded in the cross-
CRIAPPEAL-517-2015-J-.DOC
examination that at the time of occurrence many persons were
having tals (cymbals) in their hands. However, Prabhakar
Petkar (PW-4) did not cave in to the suggestion that he was
assaulted on the head by means of tal (cymbals) from the
backside. The situs of injury i.e. tempero frontal region is not
such that the witness could not have seen the assault.
102. It was further brought out in the cross-examination of
Prabhakar Petkar (PW-4) that it did happen that the people at
the temple other than the accused were also beating the
Nathuram, Nivrutti (PW-2) and Shashikant Dant (PW-1). Laying
emphasis on this admission, Mr. Gupte, the learned Senior
Counsel would urge that it cannot be inferred with certainty
that only the accused were the authors of the injuries sustained
by the deceased and the injured. We are afraid to agree with this
submission for reasons more than one. Firstly, even if taken at
par, it does not exculpate the accused - assailants completely.
Secondly, the admission, if it can be termed so, seems to have
been obtained in an unguarded moment. Thirdly, the split in
the village was vertical. Apart from the members of the
informant party, rest of the persons then present in the temple
represented the opposite group. Yet, the prosecution witnesses
have named the particular assailants with specifc roles.
CRIAPPEAL-517-2015-J-.DOC
103. Shashikant Dant (PW-1) had sustained CLW on tempero
frontal region. However, there is no evidence to establish the
identity of the assailants. Shashikant Dant (PW-1) categorically
refused to subscribe to the prosecution version that accused
no.16 Shailesh and accused no.6 Daulat assaulted him by
means of sticks. In the absence of any evidence to establish
their identity, the learned Sessions Judge could not have
recorded a fnding that accused no.16 Shailesh and accused
no.6 Daulat assaulted Shashikant Dant (PW-1).
104. The role attributed to the rest of the accused is of having
caught hold of the deceased and the injured, while the above
named assailants inficted blows by the respective weapons with
which they were armed. The learned Sessions Judge was
persuaded to believe that accused no.3 Arjun, accused no.4
Vasant and accused no.15 Somnath had caught hold of the
deceased Nathuram; accused no.8 Haresh, accused no.17
Sudhir, accused no.15 Somnath, accused no.6 Daulat and
accused no.10 Krishna had caught hold of Nivrutti (PW-2);
accused no.14 Dilip, accused no.5 Chandrakant, accused no.13
Sonu and accused no.12 Giridhar had caught hold of Sudhir
(PW-3) and accused no.10 Krishna had caught hold of
Prabhakar Petkar (PW-4).
CRIAPPEAL-517-2015-J-.DOC
105. The veracity of the claim of the prosecution witnesses on
the aspect of the overt acts attributed to abovenamed accused,
ought to have been appreciated in the backdrop of the previous
statements and probabilities of the case. As regards accused
no.15 Somnath, an omission was elicited in the cross-
examination of both Nivrutti (PW-2) and Sudhir (PW-3) that
their statements before the police did not fnd mention of the
fact that accused no.15 Somnath had also caught hold of the
deceased when accused no.1 Prakash inficted the fatal blow. To
add to this, Sachin Chaure (PW-5), the police Naik, affrmed
that the deceased was caught hold of by two persons. Sachin
Chaure (PW-5) expressed his inability to identify those two
persons before the Court. It is pertinent to note that Nivrutti
(PW-2) conceded in the cross-examination that the assailants of
the Nathuram did not come towards him or perpetrate any
assault upon him. Likewise Sudhir (PW-3) candidly asserted
that the accused, who assaulted the deceased did not assault
him. The tenor of the evidence of the injured witnesses Nivrutti
(PW-2), Sudhir (PW-3) and Prabhakar (PW-4) is that a distinct
set of accused assaulted each of the injured witnesses. In this
backdrop, the claim of Nivrutti (PW-2) that accused no.15
Somnath had caught hold of the deceased and him also, does
not appear nearer to the truth. The omission to name accused
CRIAPPEAL-517-2015-J-.DOC
no.15 Somnath as one of the persons, who had caught hold of
the deceased, thus, assumes signifcance. We are, therefore,
persuaded to hold that the complicity of accused no.15 Somnath
cannot be said to have been established.
106. Dual role is also attributed to accused no.6 Daulat and
accused no.10 Krishna. Apart from having caught hold of
Nivrutti (PW-2), accused no.6 Daulat was also attributed the
role of having inficted blow by means of a stick on the head of
Shashikant Dant (PW-1). Whereas accused no.10 Krishna
allegedly caught hold of both Nivrutti (PW-2) and Prabhkar
(PW-4). It would be contextually relevant to note that in the
cross-examination of Prabhakar (PW-4) it was elicited that he
was pushed before he was assaulted. But he cannot name the
person, who had pushed him. Prabhakar (PW-4) went on to
admit that accused no.10 Krishna is his cousin, the son of
paternal aunt. In the backdrop of the aforesaid admissions, we
are not impelled to hold that the complicity of accused no.6
Daulat and accused no.10 Krishna is established beyond
reasonable doubt.
107. The learned Sessions Judge was not persuaded to believe
the plea of alibi taken by accused no.17 Sudhir. The
prosecution tried to blunt out the defence of alibi, taken by
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accused no.17 Sudhir at the earliest opportunity, by examining
Dr. Umakant Jadhav (PW-6), who runs a hospital at Pali. Dr.
Jadhav (PW-6) endeavered to impress upon the Court that
though accused no.17 Sudhir Khandekar was never admitted as
an indoor patient in his hospital, a certifcate (Exhibit-86) came
to be issued to the effect that accused no.17 Sudhir was an
indoor patient from 6th April, 2012 to 8th April, 2012. The said
certifcate was issued as accused no.17 Sudhir desired to
produce the same before his employer for seeking medical leave.
In the cross-examination of Dr. Jadhav (PW-6) it was elicited
that a discharge summary was also issued indicating that
accused no.17 Sudhir was admitted in the hospital from 6 th
April, 2012 to 8th April, 2012. Entries were made in the indoor
patient register. Conversely, there was no entry in the OPD
register dated 8th April, 2012. Dr. Jadhav (PW-6) attempted to
wriggle out of the situation by asserting that the attendant
might have forgotten to make entry in the OPD register on 8 th
April, 2012. Dr. Jadhav (PW-6), however, conceded that accused
no.17 Sudhir was genuinely ill of enteric fever.
108. In the face of the aforesaid record, in our view, the plea of
alibi of accused no.17 Sudhir could not have been brushed aside
lightly. Dr. Jadhav (PW-6) does not claim that accused no.17
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Sudhir did not avail treatment at all during the said period.
Instead, an endeavour was made to show that accused no.17
Sudhir availed treatment on all three days as an outdoor
patient. In the context of the role attributed to accused no.17
Sudhir, of having caught hold of Nivrutti (PW-2), on balance, we
fnd that there is an element of uncertainty about the overt act
attributed to accused no.17 Sudhir.
109. The upshot of the aforesaid consideration is that the
prosecution cannot be said to have succeeded in establishing
the complicity of accused no.6 Daulat, accused no.10 Krishna,
accused no.15 Somnath, accused no.16 Shailesh and accused
no.17 Sudhir.
110. Mr. Gupte, the learned Senior Counsel urged that, the
evidence against rest of the accused is also unworthy of
credence. Assailing the credibility of circumstantial evidence, it
was submitted that, the nexus between accused no.1 Prakash,
accused no.2 Vaibhav, accused no.7 Sunil, accused no.9
Madhukar and accused no.11 Eknath and the respective
weapons allegedly used by the accused has not been
established. It was submitted with a degree of vehemence that
the evidence of discoveries, in particular, and circumstantial
evidence, in general, is wholly unreliable. Moreover, the
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prosecution case suffers from the vice of not seizing the clothes
which the accused allegedly wore at the time of occurrence, non
sealing of the incriminating articles immediately after their
seizure and inordinate delay in sending seized articles to the
Forensic Science Laboratory for analysis. In the absence of
coherent evidence on these aspects, the prosecution cannot be
said to have succeeded in establishing the guilt of the
abovenamed assailant - accused.
111. The discoveries, made by accused no.1 Prakash, accused
no.2 Vaibhav, accused no.7 Sunil, accused no.9 Madhukar and
accused no.11 Eknath were assailed on the count that the
public witnesses to each of the discoveries did not support the
prosecution. Two, it is highly inconceivable that the accused
would have concealed those weapons in the precincts of
Bhavanimata temple when there is evidence to indicate that
accused nos.1 to 10 were initially detained in the temple and,
thereafter, arrested on the very day of the occurrence.
112. It is true that the public witnesses to the discoveries
namely Harishchandra Umaji Javarat (PW-13), Chandrakant
Bandu Malekar (PW-14) as well as the independent witness to
the scene of occurrence and seizure panchnama, namley; Vilas
Maruti Khandekar (PW-10), Hari Shahadeo Kadam (PW-11) and
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Ganesh Pandurang More (PW-12), declined to support the
prosecution. The learned Sessions Judge was, however,
persuaded to place reliance on the evidence of Suresh Jadhav
(PW-18), who effected discoveries.
113. In the backdrop of indisputable position that the village
was vertically faction-ridden, the fact that the public witnesses
to the discovery did not support the prosecution cannot
command such weight as to throw the prosecution case
overboard. It is imperative to note that with a political coup the
erstwhile members of PWP joined NCP, the political outft of the
informant party. Apparently, the endeavour was not only to
merge the political affliations but the aggressors with the
aggrieved. The reluctance of the prosecution witnesses to
support the prosecution is required to be appreciated in this
setting of the matter. In the circumstances, in our view, the
learned additional Sessions Judge was justifed in placing
reliance upon the evidence of Suresh Jadahv (PW-18) who
effected the seizure of weapons pursuant to the disclosure
statements made by each of the assailant - accused.
114. The endeavour on the part of the accused to draw mileage
from the failure of the Investigating Offcer to seize the clothes,
which the accused wore at the time of occurrence, to
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immediately seal the seized articles and forward the
incriminating articles to Forensic Science Laboratory with
reasonable dispatch in the context of ocular account and
peculiar facts of the case, cannot be countenanced. These are
lapses in investigation. It is trite law that a defective or even
designedly faulty investigation is not a ground to throw away the
prosecution. In the backdrop of the direct evidence which, on a
careful analysis, establishes the identity of accused no.1
Prakash, accused no.2 Vaibhav, accused no.7 Sunil, accused
no.9 Madhukar and accused no.11 Eknath as the assailants, in
our view, the aforesaid lapses do not erode the credibility of the
prosecution case.
115. Mr. Pasbola, the learned Counsel for the accused lastly
urged that the charge framed against the accused was so
defective that the trial is completely vitiated.
Inviting the attention of the Court to the charge (Exhibit-42)
framed by the learned Additional Sessions Judge, Mr. Pasbola
urged that an arcane charge under Section 302 read with
Section 149 of the Penal Code was framed against all the
accused, without specifying that the offence was committed in
prosecution of the common object of an unlawful assembly. No
separate charge under Section 302 and 307 of the Penal Code
CRIAPPEAL-517-2015-J-.DOC
was framed. Therefore, an application, being Criminal
Application No.1306 of 2015, was preferred by the accused
seeking re-trial. By an order dated 28th October, 2015, it was
directed that the said application be heard alongwith this
appeal.
116. We are unable to persuade ourselves to agree with the
aforesaid submission. Indisputably, charge under Section 302
read with Section 149 of the Penal Code was framed against all
the accused including accused no.1 Prakash. It is well
recognised that in view of the provisions contained in Section
464 of the Code, the appellate or revisional Court is within its
rights to convict the accused for the offence for which no charge
was framed unless the Court is of the opinion that the failure of
justice has, in fact, occasioned. A sure test to determine whether
failure of justice has occasioned is to examine whether the
accused was aware of the basic ingredients of the offence for
which he is being convicted and whether the main facts sought
to be established against him were explained to him in clear
terms, and did he get a fair opportunity to defend himself.
117. A useful reference, in this context, can be made to a
Constitution Bench judgment of the Supreme Court in the case
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of Willie (William) Slaney vs. State of M.P. 14 wherein the Supreme
Court examined the issue of absence of charge in considerable
detail in the backdrop of the provisions of the Code of Criminal
Procedure, 1898 and enunciated the legal position as under:
"6. Before we proceed to set out our answer and examine
the provisions of the Code, we will pause to observe that the
Code is a code of procedure and, like all procedural laws, is
designed to further the ends of justice and not to frustrate
them by the introduction of endless technicalities. The object
of the Code is to ensure that an accused person gets a full and
fair trial along certain well-established and well-understood
lines that accord with our notions of natural justice.
If he does, if he is tried by a competent court, if he is
told and clearly understands the nature of the offence for
which he is being tried, if the case against him is fully and
fairly explained to him and he is afforded a full and fair
opportunity of defending himself, then, provided there is
'substantial' compliance with the outward forms of the law,
mere mistakes in procedure, mere inconsequential errors and
omissions in the trial are regarded as venal by the Code and
the trial is not vitiated unless the accused can show
substantial prejudice. That, broadly speaking, is the basic
principle on which the Code is based.
44. Now, as we have said, sections 225, 232, 535 and
537(a) between them, cover every conceivable type of error and
irregularity referable to a charge that can possibly arise,
ranging from cases in which there is a conviction with no
charge at all from start to fnish down to cases in which there
is a charge but with errors, irregularities and omissions in it.
The Code is emphatic that 'whatever' the irregularity it is not
to be regarded as fatal unless there is prejudice."
118. In the case of Dalbir Singh vs. State of U.P., 15 a three
Judge Bench of the Supreme Court after relying upon the
aforesaid observations in the case of Willie (supra) expounded
as under:
14AIR 1956 SC 116.
15(2004) 5 Supreme Court Cases 334.
CRIAPPEAL-517-2015-J-.DOC
"17. There are a catena of decisions of this Court on the
same lines and it is not necessary to burden this judgment by
making reference to each one of them. Therefore, in view of
Section 464 CrPC, it is possible for the appellant or revisional
court to convict an accused for an offence for which no charge
was framed unless the court is of the opinion that a failure of
justice would in fact occasion. In order to judge whether a
failure of justice has been occasioned, it will be relevant to
examine whether the accused was aware of the basic
ingredients of the offence for which he is being convicted and
whether the main facts sought to be established against him
were explained to him clearly and whether he got a fair
chance to defend himself. ...."
119. In the backdrop of the aforesaid enunciation of the legal
position reverting to the facts of the case, we do not fnd that
the accused were prejudiced in any manner. The accused were
fully aware of the gravamen of indictment against them. The
charge under Section 302 read with Section 149 was framed
against all the accused, including accused no.1 Prakash and the
charge under Section 307 read with Section 149 was also
framed against all the accused with the details of the role
attributed to the particular accused. It is true that in the frst
count of charge it was not specifcally mentioned that the
offence punishable under Section 302 read with Section 149 of
the Penal Code was committed in prosecution of the common
object of the unlawful assembly. However, in the light of the
fndings arrived at, and the view which we have taken, the said
defect cannot be construed as having caused prejudice to the
accused, especially accused no.1.
CRIAPPEAL-517-2015-J-.DOC
120. The conspectus of the aforesaid consideration is that for
failure of the prosecution to establish that the accused were
members of an unlawfull assembly and the offences were
committed in prosecution of common object of the unlawful
assembly, the conviction of the accused for the offences
punishable under Sections 302, 307, 324, 504 and 506 read
with Section 149 and Sections 147 and 148 of the Penal Code
cannot be sustained. Instead, on the premise of liability for the
individual acts, the accused no.1 Prakash is liable to be
convicted for the offence punishable under Section 302, for
having committed murder of the deceased Nathuram, accused
no.2 Vaibhav and accused no.7 Sunil for the offence punishable
under Section 307 for having attempted to commit murder of
Nivrutti (PW-2), accused no.11 Eknath for the offence
punishable under Section 307 for having attempted to commit
murder of Sudhir (PW-3) and accused no.9 Madhukar for the
offence punishable under Section 324 for having caused hurt to
Prabhakar (PW-4) by a dangerous weapon. Whereas accused
no.3 Arjun, accused no.4 Vasant, accused no. 5 Chandrakant,
accused no.8 Haresh, accused no.12 Giridhar, accused no.13
Sonu, accused no.14 Dilip, are liable to be convicted for the
offence punishbale under Section 323 only for having caused
hurt. No offence can be said to have been proved against
CRIAPPEAL-517-2015-J-.DOC
accused no.6 Daulat, accused no.10 Krishna, accused no.15
Somnath, accused no.16 Shailesh and accused no.17 Sudhir.
Thus, accused nos.6, 10, 15, 16 and 17 deserve to be acquitted
of the offences.
121. Having regard to the nature of the offences, their genesis
in the inimical relations on account of political rivalry, the
circumstances of the case, the surcharged atmosphere in which
the informant and the accused party found themselves, and the
situation in life of the accused, in our considered view, the
sentence we propose to impose would meet the ends of justice.
122. Resultantly, the appeal deserves to be partly allowed.
Hence the following order.
: ORDER :
(i) The appeal stands partly allowed.
(ii) The impugned judgment of conviction and sentence
for the offences punishable under Sections 302, 307,
324, 504, 506 read with Section 149, and Sections
147 and 148 of the Penal Code stands quashed and
set aside.
(iii) Accused no.6 Daulat, accused no.10 Krishna,
accused no.15 Somnath, accused no.16 Shailesh and
accused no.17 Sudhir stand acquitted of all the
offences.
CRIAPPEAL-517-2015-J-.DOC
Accused no.6 Daulat, accused no.10 Krishna,
accused no.15 Somnath, and accused no.17 Sudhir
stand released forthwith.
They are on emergency (Covid-19) parole.
They need not surrender in this case.
The bail bond of accused no.16 Shailesh stands
cancelled and surety stands discharged.
(iv) The appellants - accused no.1 Prakash, accused no.2
Vaibhav, accused no.3 Arjun, accused no.4 Vasant,
accused no.5 Chandrakant, accused no.7 Sunil,
accused no.8 Haresh, accused no.9 Madhukar,
accused no.11 Eknath, accused no.12 Giridhar,
accused no.13 Sonu and accused no.14 Dilip stand
acquitted of the offences punishale under Sections
302, 307, 324, 504, 506 read with Section 149, and
Sections 147 and 148 of the Penal Code.
(v) Accused no.1 Prakash stands convicted for the offene
punishable under Section 302 of the Penal Code and
is sentenced to suffer imprisonment for life and pay a
fne of Rs.15,000/- (Rs. Fifteen thousand) and, in
default of payment of fne, suffer further rigorous
imprisonment for the period of six months.
(vi) Accused no.2 Vaibhav, accused no.7 Sunil and
accused no.11 Eknath stand convicted for the offence
punishable under Section 307 of the Penal Code and
are sentenced to suffer rigorous imprisonment for the
period of 10 years and pay fne of Rs.15,000/-
(Rs. Fifteen thousand) each, and in default of
CRIAPPEAL-517-2015-J-.DOC
payment of fne, suffer further rigorous imprisonment
for the period of six months.
(vii) If the amount of fne is realised, an amount of
Rs.25,000/- (Rs. Twenty-fve thousand) be paid to
Smt. Indumati Dattatraya Khandekar, the mother of
the deceased Nathuram, and an amount of
Rs.15,000/- (Rs. Fifteen thousand) each, be paid to
the injured Nivrutti Khandekar (PW-2) and Sudhir
Khandekar (PW-3) under Section 357 (1) of the Code.
(viii) Accused no.9 Madhukar stands convicted for the
offence punishable under Section 324 of the Penal
Code.
Accused no.9 Madhukar has undergone
imprisonment for the period more than the maximum
sentence prescribed under Section 324 of the Penal
Code. Hence, accused no. 9 Madhukar stands
released forthwith.
He is on emergency (Covid-19) parole.
He need not surrender in this case.
(ix) Accused no.3 Arjun, accused no.4 Vasant, accused
no.5 Chandrakant, accused no.8 Haresh, accused
no.12 Giridhar, accused no.13 Sonu and accused
no.14 Dilip stand convicted for the offence punishable
under Section 323 of the Penal Code.
Accused no.3 Arjun, accused no.4 Vasant,
accused no.5 Chandrakant, accused no.8 Haresh,
accused no.12 Giridhar, accused no.13 Sonu and
CRIAPPEAL-517-2015-J-.DOC
accused no.14 Dilip have undergone imprisonment for
the period more than the maximum sentence
prescribed under Section 323 of the Penal Code.
Hence, they stand released forthwith.
They are on emergency (Covid-19) parole.
They need not surrender in this case.
(x) Accused no.1 Prakash, accused no.2 Vaibhav,
accused no.7 Sunil and accused no.11 Eknath, who
are on emergency (Covid-19) parole shall surrender
before the Court of the learned Additional Sessions
Judge, Mangaon, District Raigad, to undergo the
remainder of the sentence, within a period of four
weeks from today.
(xi) Accused no.1 Prakash, accused no.2 Vaibhav,
accused no.7 Sunil and accused no.11 Eknath are
entitled to set off.
123. The appeal stands disposed of.
124. In view of disposal of the appeal, the criminal application
does not survive and accordingly stands disposed of.
V. S.
Parekar
Digitally signed by
V. S. Parekar
Date: 2021.02.25
19:30:01 +0530
[N. J. JAMADAR, J.] [SMT. SADHANA S. JADHAV J.]
