Bombay High Court
Pandhari Babu Mhatre And Anr vs The State Of Maharashtra on 26 October, 2021
Bench: S.S. Jadhav, N. R. Borkar
J-747-569.doc
rkmore
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.747 OF 2008
Digitally
signed by
DINESH
DINESH SADANAND
SADANAND SHERLA
SHERLA Date:
2021.10.27
13:47:53
+0530 1. Kishore Balkrishna Mhatre ]
Age : 32 years,
3. Balkrishna Laxman Mhatre ]
Age : 57 years, ]
Both residing at, Chinchpadagaon, ]
Ambernath, Taluka-Kalyan, Dist. Thane. ] Appellants/
Org. Accused Nos.1 and 2.
vs.
1 The State of Maharashtra ]
(At the instance of Vitthalwadi Police Station,]
Dist. Thane) ]
2. Gaurabai Balaram Mhatre ]
Age : Adult, ]
R/o, Chinchpadagaon, Kate Manevali ]
Tal-Ambernath, Kalyan(E), Dist. Thane. ] Respondents
ALONGWITH
CRIMINAL APPEAL NO.211 OF 2009
The State of Maharashtra ]
(Through Vitthalwadi Police Station) ] Appellant/ Org.
Complainant
vs.
1. Pradeep Rajaram Tare ]
Age : 27 years, ]
R/o Chinchpadagaon, ]
Ambarnath, Taluka-Kalyan, Dist. Thane. ]
2. Sandip Balkrushna Mhatre ]
Age : 24 years, ]
R/o Chinchpadagaon, ]
Ambarnath, Taluka-Kalyan, Dist. Thane. ]
3. Rupesh Sadanand Jadhav ]
Age : 28 years, ]
R/o Navapada, Subhash Road, ]
Jadhav Bldg. Room No.6, Near Marathi ]
School, Vishnu Nagar, Dombivli. ]
4. Ramesh Dinkar Gaikwad ]
1/18
J-747-569.doc
Age : 10 years, ]
R/o Ashok Nagar, Gaikwad Chawl, ]
Valdhuni, Taluka-Kalyan, Dist. Thane. ]
5. Machindra Damu Mhatre ]
Age : 30 years, ]
R/o Anandwadi, Behind Shiv Mandir, ]
Vitthal Mandir, Kate Manevali, Kalyan(E). ]
6. Rupesh Eknath Pawase ]
Age : 25 years, ]
R/o Anandwadi, Behind Shiv Mandir, ]
Vitthal Mandir, Kate Manevali, Kalyan(E). ]
7. Dilip Rajaram Tare ]
Age : 30 years, ]
R/o Chinchpadagaon, ]
Ambarnath, Taluka-Kalyan, Dist. Thane. ]
8. Vijay Ramdas Bhoir ]
Age : 27 years, ]
R/o Devichapada, Satyawan Chowk, ]
Dombivli, Dist. Thane. ] Respondents/
Org. Accused Nos. 5 to 12.
ALONGWITH
CRIMINAL APPEAL NO.569 OF 2008
1. Pandhari Babu Mhatre ]
Age : 43 years,
3. Ganesh Pandhari Mhatre ]
Age : 25 years, ]
R/a Kalyan, Dist. Thane. ] Appellants/
Org. Accused Nos.3 and 4.
vs.
The State of Maharashtra ]
(At the instance of Vitthalwadi Police Station) ] Respondent
ALONGWITH
CRIMINAL REVISION APPLICATION NO.435 OF 2008
Ravi Balaram Mhatre ] Applicant
vs.
Pradeep R. Tare and ors. ] Respondent
---------------------
Mr.Niteen Pradhan, Sr. Counsel a/w Ms.S.D. Khot i/b Mr.Rupesh
Nalawade for Appellant in Cr. Appeal No.569/2008.
Mr.Aniket Vagal for appellant in Cr. Appeal No.747/2008.
Mr.Niranjan Mundargi i/b Mr.Rupesh Nalawade for Respondent Nos.5
2/18
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to 12 in Criminal appeal No.211/2019
Mr.Suraj Naik i/b Mr.R.D. Suryawanshi for Applicant in Criminal
Revision No.435/2008.
Ms.P.P. Shinde, APP for State.
-----------------
CORAM : SMT.SADHANA S. JADHAV &
N.R.BORKAR, JJ.
RESERVED ON : 01.03.2021.
PRONOUNCED ON : 26.10.2021.
COMMON JUDGMENT : (PER : N.R.BORKAR, J.)
1] The above three appeals and criminal revision application
are filed against one and the same judgment and order dated
06.06.2006 passed by the District Judge -2 and Additional Sessions
Judge, Kalyan in Sessions Case No.49 of 2006. They were, therefore,
heard together and are being disposed of by this common Judgment.
2] In the aforesaid sessions case, in all 12 accused were tried
for the offences punishable under Sections 147, 148, 302, 307, 326
read with 149 of the Indian Penal code and in the alternative 302, 307,
326 read with 34 of the Indian Penal Code. They were also tried for the
offences punishable under Section 25 of the Arms Act and 135 of the
Bombay Police Act.
3] By the impugned Judgment and order, the trial Court
convicted accused Nos.1 to 4 for the offences punishable under
Sections 147, 148 of the Indian Penal Code and sentenced them to
suffer Rigorous Imprisonment for two years and to pay fine of Rs.1000/-
each. Accused Nos.1 to 4 have been further convicted for the offence
punishable under Section 302 read with 149 of the Indian Penal Code
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and sentenced to suffer Rigorous Imprisonment for life and to pay fine
of Rs.5000/- each. They have been further convicted for the offence
punishable under Section 326 read with 149 of the Indian Penal Code
and sentenced to suffer Rigorous Imprisonment for four years and to
pay fine of Rs.1000/- each. The trial Court acquitted rest of the
accused i.e. accused Nos. 5 to 12 of all the charges.
4] Criminal Appeal No. 747 of 2008 is filed by accused Nos.1
and 2 and Criminal appeal No.569/2008 is filed by accused Nos.3 and
4 challenging their conviction. Criminal Appeal No.211 of 2009 is filed
by the State and Criminal Revision Application No.435 of 2008 is filed
by the original complainant against acquittal of accused Nos.5 to 12.
5] It is the case of the prosecution that there was dispute
between the deceased Balaram and accused No.2 in relation to the
ancestral land bearing Survey No.28/17, admeasuring 92.8 R situated
at Village Chinchpade, Taluka - Ambernath, District - Thane. In
relation to said dispute even civil suits were filed in the court of Civil
Judge, Kalyan.
6] Prior to the date of incident which took place on
18.11.2005, the Office of Taluka Inspector of Land Records, was
directed to carry out measurement of land in dispute. Accordingly, on
the day of incident at about 10.00 a.m. surveyor PW 8 Shri Nanabhau
Kedar came to measure the said land and at that time the deceased
and his few relatives including PW 1 Ravi Mhatre, PW 2 Ramesh
Mhatre, PW 3 Gurunath Mhatre and PW 5 Tukaram Mhatre were
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accompanying him.
7] According to the prosecution, while the measurement of
land in dispute was going on, at that juncture, accused Nos.1 to 12
came there and at that time they were armed with swords, spear,
sticks and iron pipes. It is alleged that accused assaulted the
deceased and his relatives who were present there with the weapons
which they were carrying. It is alleged that PW 2 Ramesh Mhatre, on
seeing assault on the deceased ran towards his house. It is alleged
that some of the accused followed him and assaulted him in front of his
house and when he ran inside the house to save himself, he was
assaulted there also. According to the prosecution in the incident
accused caused the death of the deceased and attempted to kill the
witnesses.
8] A report in relation to the incident was lodged. On the basis
of said report Crime No.122/2005 was registered against the accused
Nos.1 to 12. On completion of investigation, charge sheet was filed
against all the accused for the offences punishable under Section, 147,
148, 149, 302, 307 of the Indian Penal Code and for the offences
punishable under Section 25 of the Arms Act and Section 135 of the
Bombay Police Act.
9] The accused were charged and tried for the above stated
offences and even alternate charge was framed for the offence
punishable under Section 302, 307, 326 read with 34 of the Indian
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Penal Code. As stated earlier, the learned trial Court convicted
accused Nos.1 to 4 for the offences punishable under Sections 147,
148, 302 read with 149 and 326 read with 149 of the Indian Penal
Code and acquitted rest of the accused.
10] We have heard the learned counsel for the parties.
11] It is not disputed before us and even otherwise it is
apparent from the evidence on record that there was dispute between
the parties in relation to land bearing Survey No.28/17. According to
the witnesses, pursuant to the order passed by the revenue authorities
in their favour the office of Taluka Inspector of Land Records (T.I.L.R.)
was directed to carry out measurement of the said land. Whereas,
from the suggestions given to the witnesses, there was no such order
and application was made by the deceased to T.I.L.R. office for
measurement of the land. However, the fact remains that surveyor PW
8 Shri Kedar was deputed by T.I.L.R. office to carry out the
measurement and on the day of incident he came there on land bearing
Survey No.28/17 to measure the said land.
12] PW 8 Shri Kedar has stated in his evidence that in the year
2003 he was working as Surveyor and was attached to T.I.L.R. Office,
Ulhasnagar. On 21.10.2005 he was directed by his superior to carry out
the measurement of Survey No.28/17. Accordingly, on 18.11.2005 he
went there alongwith his peon. The deceased and others were present
there. While he was measuring the land, suddenly about 15 persons
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got down from the vehicle and came there. Then they started
assaulting the persons who were at the spot. On seeing this, he and
his peon ran away from there.
13] In the cross-examination conducted on behalf of the
accused, the evidence of PW 8 to the extent that about 15 persons got
down from the vehicle and came there at the place of incident, has not
been challenged. His presence at the place of incident is also not
challenged. On the contrary, it came to be suggested to PW 8 that the
incident occurred when work of measurement was going on. Apart from
this, it was also suggested to him that except the prosecution witnesses
and assailants nobody else was there.
14] It is, thus, apparent from the evidence of PW 8 that about
15 persons got down from the vehicle and made assault on the
deceased and the prosecution witnesses, who were present there at
the place of incident. The question is whether the accused Nos.1 to 12
were among those 15 persons, who assaulted the deceased and the
prosecution witnesses.
15] According to PW 1 Ravi Mhatre, who is also son of the
deceased, on the day of the incident, accused Nos.1 to 6 and 8 with
others armed with swords, spear, iron pipe and sticks came to the place
of incident and assaulted his father. According to him, he and his
relatives were also assaulted and then the accused ran away. In the
incident, he sustained injuries on his hand, shoulder, palm and waist. In
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addition to him, his relatives viz. Dinesh, Gurunath (PW 3), Hanumant,
Sanjay and Ramesh (PW 2) were also injured.
16] In the cross-examination, PW 1 has admitted that, accused
Nos.2 and 3 constructed 7 chawls on some portion of disputed land
and about 70 families are residing there. He has further admitted that
they have filed the suit for demolition of the said chawls. It was
suggested to PW 1 that when they went to place of incident for the
purpose of survey, they tried to create an impression that they came to
demolish the chawls and take possession of the land on which the
chawls are constructed. It was suggested that 600 to 700 persons
from the said chawls had gathered there and they assaulted them. PW
1 has denied these suggestions. There is nothing in the cross-
examination to doubt the presence of PW 1 at the time of incident.
17] At this stage, it would be appropriate to refer to the injuries
which were found on the person of the deceased during the
postmortem examination. PW-14 Dr. Vilas Salve, who conducted the
postmortem examination has found the following injuries on the person
of the deceased :
1] Incised wound elliptical in shape right ASI Spine
area 3 x 2 x 1 cm;
2] Incised wound right popliteal 1 x ½ x ½ cm;
3] Incised wound right clavicle area transvers 6 x 3 x 2 cm;
4] Linear 3 abrasions at back about 10 cm long Oblique in
position upper part of back;
5] Perforating injury left paraspinal area elliptical in shape
oblique in position 6 x 3 cm x peritoneal deep;
6] C.L.W. left forearm ulner aspect middle 6 x 3 cm x bone
deep;
7] Incised wound 6 x 3 x 2 cm left elbow anterior aspect
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cubitalfossa artry vein and muscles are cut;
8] Incised wound left parieto occipital area of scalp Oblique in
position 8 x 2 cm x bone deep elliptical in shape;
9] Incised wound 4 x 2 cm x bone deep left parieto Occipital
area of scalp elliptical in shape;
10] Incised wound 10 x 6 cm x bone deep with Penetrating
fracture at Occipital bone at occipital area oblique in position at lower
part;
11] Incised wound right side of occipital area as scalp Oblique
in position 6 x 2 cm x bone deep;
12] Incised wound 6 x 2 cm x bone deep at occipital area at
middle part with penetrating fracture of the occipital area with sharp
cutting edges at the fracture side about 6 cm long;
13] Incised wound left thumb 2 x 2 x 1 cm terminal Phalanx; &
14] Abrasion left shoulder area 10 x ½ cm oblique in position
upper part.
Stab wound elliptical in shape 3 x 2 CM. x peritoneal deep right
subcostal area.
ii] Stab sound elliptical in shape 3 x 2 cm. X peratoneal deep
right lumber area.
iii] Incised wound 3 x 2 x 2 cm. Left forearm middle 3.
iv] Incised wound 3 x 2 x 2 cm. Left forearm dorsal aspect
upper 3.
18] It is apparent from the above mentioned injuries that the
deceased was brutally assaulted. It is thus unlikely that PW 1 would
allow the actual assailants of his father who killed him brutally to go
scot-free and would implicate the accused, just because there is civil
dispute between the parties in relation to some landed property. Even
otherwise the defence of the accused that persons from the chawls
assaulted the deceased and his relatives cannot be accepted, in view
of the finding which we have recorded on the basis evidence of PW 8
Surveyor Shri. Kedar.
19] PW 2 Ramesh Mhatre, is second injured witness in the
matter. According to PW 2, while survey was going on, the accused
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Nos. 1 to 6 and 8 to 11 with other five persons came there at the place
of incident. They started assaulting the deceased by sword, chopper,
iron rod and sticks. PW 3 Gurunath tried to intervene to save the
deceased from the assault of the accused, however, PW 3 was also
assaulted. PW 2 has stated that in order to save himself, he ran
towards his house. The accused Nos.2 to 4, 10 and 11 followed him
and assaulted him in front of his house. According to PW 2, to save
himself from assault, he ran inside, however, accused followed him
inside his house and there also he was assaulted. According to him, he
was assaulted on abdomen with sword and chopper and on his head
by iron pipe. According to him, after assault, be became unconscious
and he regained consciousness, while he was at Sion Hospital.
20] The evidence of PW 2 is corroborated by the medical
evidence. After the incident, PW 2 was examined by PW 14 Dr. Vilas
Salve. He has stated that on examination, he found the following
injuries on the person of PW 2.
i] Stab wound elliptical in shape 3 x 2 CM. x peritoneal deep
right subcostal area.
ii] Stab sound elliptical in shape 3 x 2 cm. X peratoneal deep
right lumber area.
iii] Incised wound 3 x 2 x 2 cm. Left forearm middle 3.
iv] Incised wound 3 x 2 x 2 cm. Left forearm dorsal aspect
upper 3.
According to PW 14, the injury Nos.i to iv were grievous and
were caused by hard and sharp object. Thus, the evidence of PW 2 is
consistent with the medical evidence.
21] We have perused the cross-examination of PW 2. There is
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no challenge to his testimony with regard to the assault on the
deceased as well as assault on him. Considering the nature of injuries,
which PW 2 had sustained in the incident, we do not see any reason to
disbelieve him.
22] PW 3 Gurunath Mhatre is third injured witness in the
matter. According to PW 3 when the accused were assaulting the
deceased, he tried to rescue the deceased. According to him, at that
time, accused Nos.2 to 4 and 10 assaulted him by sword, chopper and
iron pipe.
23] After the incident, PW 3 was examined by PW 14 Dr. Vilas
Salve and he found the following injuries on the person of PW 3:
i] Incised wound occipital area 6 x 3 cm bone deep with
fracture on skull;
ii] Incised wound right side of parito frontal area of scalp 6 x
3 cm bone deep with fracture;
iii] C.L.W. 3 x 2 x 2 cm right thumb; &
iv] Incise wound right axial 3 x 2 x 2 cm.
24] It is well settled that the evidence of injured witnesses must
be given due weightage as their presence cannot be doubted.
Convincing evidence is required to discredit the injured witnesses. In
the present case nothing is brought on record to doubt the testimony of
the injured eye witnesses.
25] The learned counsel for convicted accused has submitted
that the trial court has disbelieved the evidence PW 2 and PW 3 and
convicted the accused Nos.1 to 4 only on the basis of evidence of
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PW1.
26] We have gone through the Judgment of the trial Court.
The finding of the trial Court is otherwise and therefore we are
constrained to reproduce the finding of the trial Court to that effect.
Para No.105 of the Judgment of the trial Court reads thus :
"105} Considering all the aforesaid circumstances, presence of
Ramesh to the spot is found natural. He being relative and was
injured and also interested in land dispute also support his
presence to the spot. As such so far as incident seen by him at
place at survey is said to be acceptable evidence. So also, his
evidence on the point that, he was also assaulted at the place of
his house is found believable. His evidence to the extent of
making assault in his abdomen causing abdominal injury though is
found corroborated to medical evidence. However, authorship at
those injuries for the reason discussed above is not attributable to
accused Pandharinath, Ganesh and Rupesh."
(emphasis supplied)
27] The learned trial Court in no uncertain terms has accepted
the evidence of PW 2 with regard to both the incidents.
28] The trial court has also accepted the evidence of PW 3 in
relation to the incident in question and findings to that effect are in para
Nos.125 and 126 and the said findings read thus:
"125} Evidence of Gurunath does not carry details of manner of
assault except that accused had beaten Balaram. Name of
specific assailants of Balaram is not given. Considering the
presence of mob of about 15 persons non mentioning overt act of
each person does not belie his version.
126} One of the contention raised by defence is that evidence of
Gurunath is in total variance and is a vague story, is not
acceptable. His version of sitting beneath the tree and Tukaram
bringing rickshaw is not corroborated by Tukaram. In such cases
some discrepancies found to occur. His evidence examined on
the total facts, is found believable. His presence to the spot is
found natural".
(emphasis supplied)
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29] Thus, the submission of the learned counsel for the
accused that the trial Court has disbelieved the testimony of PW 2 and
PW 3 is not correct.
30] The learned counsel for the convicted accused has cited
various Judgments of the Hon'ble Supreme Court and this Court on
the point of sole eye witness. However, we do not wish to refer to
those judgments, as they are not applicable to the present case.
31] The evidence of PW 1 to PW 3 with regard to accused
Nos.1 to 4 is consistent. Therefore, we do not see any reason to
interfere with their conviction recorded by the trial court.
32] The learned counsel for the convicted accused has
submitted that the trial court on the basis of evidence on record has not
accepted the case of the prosecution that accused Nos.5 to 12 were
with the alleged assailants and convicted accused Nos.1 to 4 only. It is
submitted that the conviction under sections 147,148 and 149 of the
IPC cannot be recorded against four accused. It is submitted that the
trial court was therefore, not justified in convicting the accused Nos.1 to
4 for the offences punishable under sections 147, 148 and for the
offences punishable under sections 302 and 326 with the aid of section
149 of the IPC. In support of his submissions, the learned counsel for
the convicted accused has relied upon the following judgments:
1] Mohan Singh and anr. v. State of Punjab
- AIR 1963 SC 174;
2] Accheyal v. State of Uttar Pradesh - 1978 (3) SCC 526;
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3] Amar Singh v. State of Punjab - 1987 (1) SCC 679; and
4] Ramanlal & anr vs. State of Haryana - (2015) 11 SCC.
33] The Hon'ble Supreme Court in the case of Mohan Singh
(supra), on which reliance is placed, has observed :
"(8) The true legal position in regard to the essential
ingredients of an ofence specifed by S.149 are not in
doubt. Section 149 prescribes for vicarious or
constructive criminal liability for all members of an
unlawful assembly where an ofence is committed by
any member of such an unlawful assembly in
prosecution of the' common object of that assembly or
such as the members of that assembly knew to be
likely to be committed in prosecution of that object. It
would thus be noticed that one of the essential
ingredients of Section 149 is that the ofence must
have been committed by any member of an unlawful
assembly, and S.141 makes it clear that it is only
where fve or more persons constituted an assembly
that an unlawful assembly is born, provided of course,
the other requirements of the said section as to the
common object of the persons composing that
assembly are satisfed. In other words, it is an
essential condition of an unlawful assembly that its
membership must be fve or more. The argument,
therefore, is that as soon as the two Piara Singhs were
acquitted, the membership of the assembly was
reduced from fve to three and that made S.141
inapplicable which inevitably leads to the result that S.
149 cannot be invoked against the appellants. In our
opinion, on the facts of this case, this argument has to
be upheld. We have already observed that the point
raised by the appellants has to be dealt with on the
assumption that only fve persons were named in the
charge as persons composing the unlawful assembly
and evidence led in the course of the trial is confned
only to the said fve persons. If that be so, as soon as
two of the fve named persons are acquitted, the
assembly must be deemed to have been composed of
only three persons and that clearly cannot be
regarded as an unlawful assembly."
34] However, the Hon'ble Supreme Court has further
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observed:
"(9) In dealing with the, question as to the
applicability of S. 149 in such cases, it is necessary to
bear in mind the several categories of cases which
come before the Criminal Courts for their decision. If
fve or more persons are named in the charge as
composing an unlawful assembly and evidence
adduced by the prosecution proves that charge
against all of them, that is a very clear case where S.
149 can be invoked. It is, however, not necessary that
fve or more persons must be convicted before a
charge under S. 149 can be successfully brought home
to any members of the unlawful assembly. It may be
that less than fve persons may be charged and
convicted under S. 302/149 if the charge is that the
persons before the Court along with others named
constituted an unlawful assembly; the other persons
so named may not be available for trial along with
their companions for the reason, for instance, that
they have absconded. In such a case, the fact that less
than fve persons are before the Court does not make
section 149 inapplicable for the simple reason that
both the charge and the evidence seek to prove that
the persons before the court and others number more
than fve in all and as such, they together constitute
an unlawful assembly. Therefore, in order to bring
home a charge under S.149 it is not necessary that
fve or more persons must necessarily be brought
before the court and convicted. Similarly, less than fve
persons may be charged under S.149 if the
prosecution case is that the persons before the Court
and others numbering in all more than fve composed
an unlawful assembly, these others being persons not
identifed and so not named. In such a case, if
evidence shows that the persons before the Court
along with unidentifed and un-named assailants or
members composed an unlawful assembly, those
before the Court, can be convicted under section 149
though the unnamed & unidentifed persons are not
traced and charged. Cases may also arise wherein the
charge, the prosecution names fve or more persons
and alleges that they constituted an unlawful
assembly. In such cases, if both the charge and the
evidence are confned to the persons named in the
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charge and out of the persons so named two or more
are acquitted leaving, before the court less than fve
persons to be tried, then S.149 cannot be invoked.
Even in such cases, it is possible that though the
charge names fve or more persons as composing an
unlawful assembly, evidence may nevertheless show
that the unlawful assembly consisted of some other
persons as well who were not identifed and so not
named. In such cases, either the trial court or even the
High Court in appeal may be able to come to the
conclusion that the acquittal of some of the persons
named in the charge and tried will not necessarily
displace the charge under section 149 because along
with the two or three persons convicted were others
who composed the unlawful assembly but who have
not been identifed and so have not been named. In
such cases the acquittal of one or more persons
named in the charge does not afect the validity of the
charge under section 149 because on the evidence the
court of facts is able to reach the conclusion that the
persons composing the unlawful assembly
nevertheless were fve or more than fve. It is true that
in the last category of cases, the court will have to be
very careful in reaching the said conclusion. But there
is no legal bar which prevents the court from reaching
such a conclusion. The failure to refer in the charge to
other members of the unlawful assembly un-named
and unidentifed may conceivably raise the point as to
whether prejudice would be caused to the persons
before the court by reason of the fact that the charge
did not indicate that un-named persons also were
members of the unlawful assembly. But apart from the
question of such prejudice which may have to be
carefully considered, there is no legal bar preventing
the court of facts from holding that though the charge
specifed only fve or more persons, the unlawful
assembly in fact consisted of other persons who were
not named and identifed. That appears to be the true
legal position in respect of the several categories of
cases which may fall to be tried when a charge under
section 149 is framed."
(emphasis supplied)
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35] We have, on the basis of evidence of PW 8, already held
that 15 persons came to the spot of incident and assaulted the
deceased. The trial court on the basis of evidence on record has merely
not accepted the case of prosecution that accused Nos.5 to 12 were
part of that unlawful assembly. The present case, thus would fall in last
category mentioned by the Hon'ble Supreme Court in the case of
Mohan Singh (supra). The trial court was therefore, justified in
convicting the accused Nos. 1 to 4 with the aid of section 149 of the
IPC.
36] As regards the State appeal, admittedly, the names of
accused No.7 and accused Nos.9 to 12 were not mentioned in the FIR
and the said accused were thus not known to PW 1. Admittedly, no test
identification parade is conducted in relation to the said accused. The
trial court was therefore, justified in acquitting accused No.7 and
accused Nos.9 to 12.
37] As regards accused Nos.5, 6 and 8, the trial court has held
that accused Nos.5 and 8 are not from the family of accused No.2, with
whom there was dispute of the deceased on account of ancestral land.
It is further held that the evidence on record about the presence of
accused Nos.5,6 and 8 at the place of incident is not convincing. The
trial court has therefore, acquitted them. The view taken by the trial
court does not appear to be perverse and therefore we are not inclined
to interfere with the acquittal of accused Nos.5, 6 and 8. In the result,
the following order is passed:
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ORDER
1] Criminal Appeal No. 747 of 2008, Criminal Appeal No. 211
of 2009, Criminal Appeal No.569 of 2008 and Criminal Revision
Application No. 435 of 2008 are dismissed.
2] Pending Applications, if any, do not survive and the same
are also disposed of.
[N.R.BORKAR, J] [SMT.SADHANA S. JADHAV, J]
