Bombay High Court
Mahadeo Shankar Dhaygude vs The State Of Maharashtra on 12 December, 2012
Author: P.D. Kode
Bench: V.M. Kanade, P.D.Kode
apeal476-07 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.476 OF 2007
1. Mahadeo Shankar Dhaygude,
age 51 years, Occ: Agri.
2. Namdeo Bapurao Dhaygude,
age 32 years, Occ: Agri.
3. Ganpat Attamaram Dhaygude,
age 24 years, Occ: Agri.
4. Kashinath Dagdu Dhaygude,
age 30 years, Occ: Agri.
5. Sanjay @ Sandeep Sadashiv Dhaygude,
age 24 years, Occ: Agri.
6. Ankush Dinkar Dhaygude,
age 38 years, Occ: Agri.
7. Anil Mahadeo Dhaygude,
age 27 years, Occ: Agri.
8. Sharad Pralhad Dhaygude,
age 23 years, Occ: Agri.
9. Bhagwan Shankar Dhaygude,
age 34 years, Occ: Agri.
All are residing at village
Dhaygudevasti under
Nirawagaj, Tah. Baramati,
Dist. Pune.
(At present in Yerwada Central
Prison, Pune) .. APPELLANTS
(Orig Accused
Nos. 1 to 9)
.. Versus ..
The State of Maharashtra .. RESPONDENT
Mr. D.G. Khamkar, Advocate for Appellants.
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apeal476-07 2
Mrs. V.R. Bhosale, A.P.P. for Respondent-State
CORAM : V.M. KANADE AND
P.D.KODE, JJ.
DATED : December 12th, 2012
ORAL JUDGMENT ( Per P.D. Kode, J.)
1. The appellants have challenged the judgment and order dated 30.4.2007 passed by the learned Additional Sessions Judge, Baramati convicting them for commission of offence under Sections 148, 302 and 324 of the Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for 1 year and to pay fine of Rs.500/- & in default to undergo simple imprisonment for one month on first count; to suffer imprisonment for life and to pay fine of Rs.5000/- & in default to undergo simple imprisonment for 6 months on second count and suffer rigorous imprisonment for one year and to pay fine of Rs.500/- & in default to undergo simple imprisonment for 15 days on third count.
2. All the said appellants (hereinafter for short referred as A1 to A9 as per the names in the title clause) at trial were charged for commission of offences under Sections 302, 307, 326, 324, 325, 147, 148, 149, 337, 323, 504 and 506 of I.P.C.
3. According to the prosecution, first informant PW1 Kashinath was residing at village Nira-wagaj along with mother, ::: Downloaded on - 09/06/2013 19:29:21 ::: apeal476-07 3 wife Surekha, sons Harishchandra and Manohar and daughter Vidya.
His brothers PW3 Sukhdeo and deceased Balasaheb were residing separately in adjacent houses. They had gifted nearby land to Grampanchayat for running Anganwadi/Nursery School. The appellants were from brotherhood of PW1 and were residing nearby house of PW1.
3.1. One lady teacher Mrs. Pawar had complained of pelting stones on the tin roof of Anganwadi and of spitting star Gutkha on the door and corner of Anganwadi causing nuisance since 10 to 15 days prior to occurrence of the main incident on 31st of July, 2001.
On the day of incident at about 8.30 p.m., while in house along with family members PW1 heard sound of pelting of stones on tin roof of Anganwadi. Balasaheb along with his son PW2 Pravin went to the Anganwadi. The appellants present at said place picked up quarrel with them. The appellants brought axe, iron bars, sticks and stones at the said place.
3.2. The appellants abused Balasaheb and PW2 and started assaulting them with weapons. After hearing noise of exchange of words, PW1, his sons Harishchandra and Manoj rushed to Anganwadi and found that all the appellants were abusing and assaulting Balasaheb and PW2 with sticks, iron bars, stones and axe. They tried to intervene. Thereupon A2 Namdeo rushed at PW1 and gave blow of stick on the head of PW1 due to which he fell ::: Downloaded on - 09/06/2013 19:29:21 ::: apeal476-07 4 down. A2 gave another blow of stick on the head of PW1. As incident was in progress, PW3 Sukhdeo came on motorcycle from Baramati. PW3 requested the appellants for not assaulting Balasaheb, PW2, Manoj, PW1 and Harishchandra. However, they did not pay any heed and also assaulted him with sticks.
3.3. Balasaheb, Harishchandra, Manoj, PW2, PW3 and PW1 sustained injuries in the incident. They were taken to Silver Jubilee Hospital at Baramati. The condition of Balasaheb was serious. He had sustained serious injury on his head. PW2 had sustained injury on face with fracture of nose and maxilla. Others had also sustained injuries. PW1 while under treatment at Silver Jubilee Hospital, gave information Exh.35 to ASI Khaire of Baramati Taluka Police Station who had been to said hospital due to receipt of telephonic information from the hospital regarding admission of Balasaheb and four others, injured in an incident of assault.
3.4. Crime No.53/2001 was registered by said Police Station upon said information for the offences punishable under Sections 147, 148, 149, 307, 325, 326, 337, 504 and 506 of Indian Penal Code. The investigation was taken up by PW9 P.I. Shah.
Balasaheb under medical treatment succumbed on 15th August, 2001. PW9 at the conclusion of the investigation, submitted the charge sheet against the appellants in the Court of the Judicial Magistrate First Class, Baramati for commission of offences as ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 5 narrated earlier. The case registered thereon was duly committed to the Court of Session at Baramati.
4. The appellants pleaded not guilty to charge framed at trial for earlier mentioned offences.The prosecution examined in all 9 witnesses at the trial i.e. four witnesses so far referred and additionally PW4 Vijaykumar Dhaigude nephew of the deceased, who had also rushed to Anganwadi soon after the incident, PW5 Dr. Sou. Manik Suryawanshi who had examined deceased and all four injured persons at Silver Jubilee Hospital, Baramati and issued injury certificates Exhs. 51 to 55; PW6 Dr. Baban Nimbalkar who had examined PW2 after he was referred to his hospital from Silver Jubilee Hospital and issued injury certificate Exh.58; PW7 Dr. Bhoite from Giriraj Hospital at Baramati who had treated Balasaheb and given cause of death and panch PW8 Deokate regarding the arrest of A1, A5, A7, A8, and A9 on 3rd August, 2001 and seizure of an axe and sticks produced by A1 under panchanama Exh.62. The prosecution also relied upon the documentary evidence which came to be prepared during the course of investigation.
5. The defence of the appellants as disclosed from the trend of the cross-examination and from the written statements submitted was that while A1 to A6 were sitting in front of Anganwadi at the time of incident, came at the said place in drunken condition along with the prosecution witnesses armed with sticks and iron bars.
::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 6They abused A1 to A6 in filthy language and all of sudden they started beating the appellants. During said assault, in the darkness Balasaheb PW2 and the other witnesses sustained injuries from their own people while they were escaping from the place of incident. Balasaheb while being taken to Baramati for medical treatment on motorcycle, met with an accident and received injury at head which subsequently resulted in death. PW1 and the other prosecution witnesses had assaulted the appellants. The appellants had filed FIR with the Police Station upon which crime was registered and Sessions Case No. 87 of 2003 arising out of the same was pending against PW1 and other prosecution witnesses. As a counter blast, PW1 had lodged false report with the Police.
6. Some of the appellants at the end of their examination under Section 313 of the Code of Criminal Procedure though replied that they do not wish to examine themselves on oath, informed of examining PSI Khaire and Medical Officers from Silver Jubilee Hospital. Curiously enough in support of the defence, the appellants again examined PW5 Dr. Manik Suryawanshi as defence witness no.1 regarding injuries noticed by PW5 during examination of A1, A5 on 2nd August, 2001 at 12.15 p.m. and injury certificate issued by her. Similarly the appellants examined Dr. Subhash Jagtap from same Silver Jubilee Hospital as defence witness no.2 regarding examination made by him of A2, A3 and A4 brought by Police on 1st August, 2001 at the said hospital at about 2.30 p.m. and injury ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 7 certificates issued by him.
7. The trial Court came to the conclusion that prosecution has proved that Balasaheb had met homicidal death; the appellants were members of unlawful assembly and were armed with axe, iron bars, sticks and stones and in prosecution of common object of the said assembly, had committed the offence of rioting and so also murdered Balasaheb and voluntarily caused hurt to PW1, PW2, PW3 and so also Harishchandra and Manoj. However, trial Court also came to the conclusion that the prosecution had not proved that the appellants in prosecution of the common object of the assembly had attempted to commit the murder of PW2 and abused and intentionally insulted prosecution witnesses and provoked them to commit breach of public peace. Accordingly the trial Court convicted and sentenced the appellants as narrated in the commencing part of the judgment.
8. Mr. D.G. Khamkar, the learned counsel for the appellants urged that the trial Court ignoring the defence of the appellants, erroneously accepted the evidence of the main prosecution witnesses i.e. PW1 to PW4. It was urged that in spite of the evidence of the said witnesses being full of infirmities and variances, the trial Court accepted the same for coming to the conclusion of the said evidence having established the guilt of the appellants. It was urged that the trial court ignoring the injuries on the person of A1 to A5 as ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 8 established by the defence evidence of DW1 and DW2, failed to appreciate that the incident was an outcome of a free fight ensued in between the parties. By placing reliance upon the various decisions, it was canvassed that the incident being outcome of free fight, the trial court could have never come to the conclusion that the appellants were members of the unlawful assembly and in prosecution of common object of the said assembly, had committed the offences as erroneously concluded. It was urged that the trial Court ought to have concluded that since incident had occurred in melee, for establishing the guilt of the particular appellant in assaulting a particular injured, the evidence of more than one witness to such an effect was necessary and since such evidence was lacking, the trial Court ought to have held that the guilt of the appellants for commission of the offences under Sections 148, 302 and 324 of the I.P.C. was not established. It was urged that the trial court failed to appreciate that all the prosecution witnesses were interested witnesses and without there being due corroboration from the evidence of independent witness or at least from the cogent evidence of two witnesses, no conclusion of guilt of a particular appellant could have arrived. It was urged that considering such a character of prosecution evidence, the trial Court ought to have acquitted each of the appellants or at least should have given benefit of doubt to the appellants. It was urged that judgment and order of conviction passed by the trial Court being not legally sustainable, the same be quashed and set aside by allowing the ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 9 appeal and acquitting them. The learned counsel for the appellants in support of his submissions placed reliance upon the decisions in a case of:
(i) Masalti .vs. State of Uttar Paradesh 1965 (1) Cr.L.J. 226,
(ii) Lalji .vs. State of U.P. AIR 1973 Supreme Court 2505,
(iii)Kanwarlal .vs. State of M.P. AIR 2002 Supreme Court 3690
(iv) Balaur Singh .vs. State of Punjab 1995 Cri. L.J. 3611
(v) State of Haryana .vs. Chandvir 1996 Cri. L.J. 3197.
9. Mrs. V.R. Bhosale, the learned A.P.P. for the State on the other hand fully supported the judgment by urging that ig the trial Court has given the cogent reasons for coming to the conclusion of Balasaheb having met with homicidal death on the basis of the medical evidence on the record and even de hors the account of incident unfolded by the main prosecution witnesses. She urged that the cogent reasoning has been given by the trial Court for accepting the evidence of main prosecution witnesses PW1 to PW4 for coming to the conclusion that by the said evidence prosecution has established the acts of omission and commission on part of each of the appellants and the same being in prosecution of the common object of an unlawful assembly of which they were members and were armed with the weapons as claimed by the prosecution. It was urged that while coming to such conclusion, the trial court had duly taken into consideration the defence of the appellants no.1 to 6 of themselves being present at the spot of incident. It was thus contended that no error was committed by the trial Court for coming to the conclusion of the guilt of the appellants being ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 10 established in commission of the offences for which the appellants were convicted and sentenced by the trial Court. It was submitted that there being no merits in the appeal, the same be dismissed.
10. Thoughtful considerations were given to the submissions advanced by both the sides and the judgment assailed as well as the record of the case was carefully considered for ascertaining merits of the submissions canvassed.
11. Now considering the aspect of prosecution having established Balasaheb having met homicidal death and voluntarily hurt by means of dangerous weapon was caused to PW1, PW2, PW3 and Manoj, the prosecution had relied upon the post mortem notes Exh. 65 regarding post mortem examination of the corpse of Balasaheb and the evidence of doctors PW5, PW6, PW7 who had treated victims and given certificates regarding the injuries sustained and so also upon the opinion expressed by them. The appellants at the trial admitted the post mortem notes relied by the prosecution. The trial Court duly took into consideration all the said evidence during the discussion made in paragraph no.6 of the judgment appealed while considering the aforesaid questions.
12. The reference to the post mortem notes reveals that during the post mortem performed in between 11 and 12 noon on 15th August, 2001, the doctors had found following 5 external ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 11 injuries i.e. :
i) sutured wound extending from left parietal region to left temporal region.
ii) Sutured wound extending from right parietal region to right temporal region. Bleeding ++ through wound.
iii) Sutured wound over both paraumbilical region transverse in shape both sides 8 c.m. in size.
iv) Tracheostomy wound present.
v) Multiple contusions small in size present over upper back region reddish black in colour.
Both temporal bone flaps removed and brain matter exposed.
Flaps buried in sub cutaneous tissue of abdomen para umbilical region.
13. The post mortem notes further reveals that during the internal examination intracranial haemorrhage with brain stem haematoma was found. It reveals the cause of death as "death due to cardio respiratory failure due to intracranial haemorrhage due to head injury".
14. The scrutiny of the evidence of PW5 reveals that while on duty as a Medical Officer at Silver Jubilee Hospital at Baramati on 31.7.2001 at about 10 p.m. she had an occasion to come across and had examined and treated Balasaheb brought in unconscious condition and accompanied by injured PW1, PW2, PW3 and Manoj ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 12 Kashinath Dhaigude. PW5 deposed of having noticed on the person of Balasaheb the multiple CLW over parietal region of size 6 cm. x 0.5 cm with connecting injury of same size irregular in shape. PW5 deposed that said injury was grievous and caused within one hour by hard object. PW5 deposed that having suspected fracture , she has transferred the said patient to Sasoon Hospital.
PW5 opined that said injury could be caused with the axe with blunt side of axe, coming into contact with head and Exh.52 is certificate issued by her regarding the said injury.
15. The evidence of PW5 reveals that PW1 had given history of assault at 9 p.m. and during examination she had noticed CLW over his forehead 10 cm x 0.5 cm x 0.5 cm. verticle in shape and caused with hard object within one hour, swelling on his left forearm. It reveals that he was admitted in the hospital for 8 days. It reveals that Exh.52 is certificate issued by her regarding the said injuries and contents thereof being correct.
15.1. Her evidence further reveals that on PW2 she had noticed
i) CLW over left brow 2 cm x 0.5 cm verticle in shape, ii) Small abrasion over left cheek 1.05 cm x 5 cm., iii) Small abrasion over right foot small size, iv) Abrasion over left shoulder and v) Incised wound over right forehead 3cm x 0.05 cm x 0.05 cm. with X-ray revealing fracture caused to left shoulder and Maxila. It reveals that all the injuries except fracture of maxila were simple and all of ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 13 them were caused within 1 hour with hard object such as iron bar or sticks. It reveals that Exh.54 is the certificate issued by her regarding the said injuries and contents thereof being correct.
15.2. Her evidence further reveals that on PW3 she had noticed i) Pain and swelling over left forearm, ii) Abrasion over left ring finger, iii) Pain and swelling over right forearm, iv) Abrasion over right forearm, v) Pain over left side chest (no external injury) and vi) Pain and CLW over right side of forehead 2 cm x 0.5 cm. It reveals that the age of said injuries was within 1 hour and all injuries were simple in nature and could be caused with the help of stick. It reveals that PW3 was admitted in the hospital for 8 days. It reveals that Exh.53 is certificate issued by her regarding the said injuries and contents thereof being correct.
15.3. Her evidence further reveals that on Manoj Kashinath Dhaigude she had noticed i) CLW over left parietal region 4 cm x 0.5 cm verticle in shape, ii) Abrasion over left shoulder 4 cm x 3 cm in shape. It reveals that the age of said injuries was within 1 hour and all injuries were simple in nature and could be caused with the help of stick. It reveals that Exh.55 is certificate issued by her regarding the said injuries and contents thereof being correct.
16. The close scrutiny of the evidence of PW5 does not reveal any significant material was elicited during the cross-examination ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 14 except bringing on record that injuries caused to PW1 were possible due to dash with a tree or wall or pole and injuries caused to Balasaheb were possible due to stone or fall from the motorcycle.
Similarly it was brought on the record that injury caused to Balasaheb was of irregular shape, the same can be caused by a stone or by the part of motorcycle having irregular shape and the injury caused by blunt side of muddemal Article axe could cause injury with regular shape. Similarly it was also brought on the record that injuries caused to PW3 and Manoj were possible by fall on stony and rocky ground etc. It was also brought on record that it was not necessary to admit PW3 in the hospital for 8 days as the injuries sustained by him were simple.
17. It will not be out of place to state that during the cross-
examination of PW5 , it was also elicited that she had examined appellant no.1 and appellant no.5 and about injuries noticed by her on their person etc. The defence having again examined PW5 as defence witness no.1 for the said purpose and said evidence being not relevant for the present discussion , the same is narrated at appropriate place.
18. Thus after close scrutiny of the evidence of PW5, we do not find any reason for not accepting her evidence which is found duly corroborated by the medical certificates given by her. Needless to add that her evidence establishes the relevant matters deposed ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 15 by her i.e. serious multiple injuries sustained by Balasaheb on head due to hard object such as axe at about one hour prior to her examination; injuries/simple hurt by PW1 on head and left forearm , possible by hard object like stick, serious injury/ grievous hurt by PW2 on face and head possible by iron bar or stick; simple injury/ hurt by PW3 on the left arm, right arm, left side of chest possible by stick and simple injury/hurt by Manoj on head and left shoulder possible by stick and all the said injuries being caused within one hour before the examination i.e. at about 8' O clock.
19. The scrutiny of the evidence of PW6 reveals that while attached to Nimbalkar Hospital on 2nd August, 2001 , he had examined PW2 referred by Dr. Kokne of Silver Jubilee Hospital along with X-ray for opinion and found that he had sustained fracture of nosal bone and fracture of maxilla and in his opinion, the said injury suffered by PW2 were possible by blow with stick. After close scrutiny, we do not find the core of his such testimony was shaken in any manner as cross-examination does not reveal any other facet was brought on the record except that such injuries were possible by fall on rocky ground or dash on wall or pole and projecting part coming into the contact with nose and maxilla.
20. The close scrutiny of the evidence of PW7 reveals that on 31st July, 2001 while attached with Giriraj Hospital at Baramati, deceased Balasaheb was admitted at about 11.20 p.m. and then he ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 16 was unconscious and blood was oozing from his nose. It reveals that there were signs of aspiration in both the lungs, right pupil was sluggish and left normal in reacting to the light. It reveals that he noticed i) sutured fronto parietal region to the extent of 8 cm with signs of formation of haematoma in wound, ii) also haematoma at the base of the left thumb and palmer aspect and iii) abrasions on left arm on the person of Balasaheb. The evidence of PW7 further reveals that during the scan he found huge right tempo parietal extradural haematomaig compressing right cerebral hemisphere. He also noticed fracture of right temporal bone and contusion on left temparo parietal bone area. It reveals that after repeated scans and noticing the damage caused as disclosed therein, the patient was operated. However, the said patient passed away on 15th August, 2001. According to PW7 , he died due to the head injury and such injuries could be caused with the help of blunt side of the axe. PW7 vouched regarding the correctness of the certificate Exh.60 to such effect issued by him. Even after close scrutiny, we do not find any reason for not accepting the evidence of PW7,as except the injuries other than on head were simple, history was given by person accompanying the patient, himself had not ascertained dimensions of the injuries as they were sutured and injuries were possible by sustaining a fall on motorcycle, no other thing was brought on the record for not accepting the evidence of PW7.
21. The matters from the post mortem notes and particularly ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 17 cause of death stated therein is duly corroborated by the evidence of PW5 and PW7 who had examined and treated him earlier. The said evidence duly established that death of Balasaheb was due to the receipt of head injury. The evidence of PW5 and PW7 also reveals that he had received the injury due to assault. The said evidence also signifies that during the said assault he had also sustained injuries on chest and so also upon his back. It also signifies that head injury received by him was possible by blunt side of axe/stick/iron bar.ig Similarly the evidence of PW5 considered in proper perspective also denotes thatthe other victims examined by her had told of having received injuries in incident of assault and in her opinion in all probability they had sustained said injuries in between 8 and 9 p.m. . Without repeating the injuries noticed by PW5, it can be safely said that the said injuries indicate that during the said incident PW1 was attacked on his forehead and on left forearm; PW3 on left forearm, left ring finger, right forearm, on chest and forehead; Manoj Kashinath Dhaigude on left side of his head and on shoulder with a hard object like a stick. Similarly the relevant part of the evidence of PW5 and so also that of PW6 reveals that alike PW1, PW3 and Manoj; PW2 had in an incident of assault occurred in between 8 to 9 p.m. had sustained grievous hurt to his nose and the same was possible due to being assaulted by means of iron bar/stick.
22. As narrated earlier, the aforesaid medical evidence also ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 18 denotes the doctors having admitted that injuries to Balasaheb and the other victim were possible by a fall from motorcycle and to others due to falling on ground or stony substance etc. The appellants had taken the defence that Balasaheb after the incident while taking to the doctor on motorcycle to Baramati met with an accident and received the head injury which ultimately resulted in his death. We find that the trial Court after taking into consideration the fact that no material in support of the said defence had surfaced on record and on the contrary the unshattered ig evidence of PW1 Kashinath that he had taken injured for treatment by bringing the jeep from his home, has discarded the said defence and came to the conclusion that Balasaheb met homicidal death, PW2 received the grievous hurt and PW1, PW3 and Manoj hurt. In light of the matters discussed earlier, we are unable to find any fault with such findings arrived or the reasoning for the same given in paragraph no.6 of the judgment.
23. Having concluded aforesaid ,now it is necessary to ascertain whether as claimed by the prosecution the appellant were members of unlawful assembly and in prosecution of the common object of the said unlawful assembly , they or some of them had caused said homicidal death of Balasaheb and grievous hurt to PW2 and hurt to PW1, PW3, Manoj in view of such a conclusion arrived by the trial Court after taking into consideration the evidence of witnesses for the incident i.e. PW1 to PW4. Hence it will be ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 19 necessary to assess the account of an incident as unfolded by them.
24. Before taking of the said process, it will be necessary to consider one of the submissions advanced by the learned counsel for the appellants that evidence of said witnesses does not inspire confidence in view of themselves being interested witnesses due to being closely related with each other and the prosecution having deliberately not examined any of the independent witnesses i.e. the persons residing in the houses in the vicinity of scene of offence. It was urged that on the said count the evidence of the said witnesses is liable to be discarded. We find it difficult to accept the said submission as the prosecution evidence amongst other denotes that all of them were involved in the incident and it has not surfaced on the record that any other person was present at the time of the incident to witness the incident. Similarly we are also unable to accept said submissions because it is settled legal position that evidence of any witness is not liable to be discarded merely on the count of himself being the close relative of the victims because at the most the said facet would require close scrutiny of his evidence.
Hence we are unable to find any fault with similar reasoning given by the trial Court in para no.12 of the judgment for not accepting such submission.
25. Upon the similar line, the learned counsel also urged that it has surfaced during the evidence that the cross-complaint with ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 20 regard to the incident occurred was lodged by appellants and the counter case was duly registered there on. However the trial Court ignored the said aspect and so also the fact of existence of injuries on the person of appellant Nos. 1, 2, 3, 4 & 5 as established through the evidence of DW1 and DW2. It was urged that said factors warranted rejection of the evidence of the said four witnesses PW1 to PW4 and particularly in absence of the prosecution having adduced the evidence of any independent witness. It was tried to canvass that registration of a counter case regarding an incident prima facie impaired the evidence of the said witnesses and particularly in absence of the evidence of any independent witness supporting them. It was urged that only in the event of such evidence being adduced at the trial, the Court would have been in position to ascertain as to who were the aggressors and who were the victims. It was urged that such evidence being not placed before the trial Court, the trial court ought to have discarded the evidence of the said interested witnesses or at least should have given benefit of doubt to the appellants in view of lack of proper evidence for determining the said vital aspect.
26. We are unable to accept the said submission as it is settled legal position that mere registration of counter case by ipso facto would not impair the evidence of any witness in either of the case. The same is obvious as the legal position pertaining to the appreciation of the evidence in such cases is settled to the effect ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 21 that though both the cases are required to be tried by the same Judge, while appreciating the evidence in each of the case, it is not permissible for him to take into account the evidence in another case and he is required to appreciate the evidence in either case de hors the same upon the settled principles of appreciation of the evidence. Though it is true that in such type of cases the learned Judge trying the counter cases may come to the conclusion that either of a party was an aggressor, or he may also come to the conclusion that none of them was aggressor and a free fight had ensued in between the parties and in such a contingency it is open for him to determine the liability of each of the party independently in respective case. Having regard to the same, as observed earlier we reiterate that again the said facet would have required the trial Court only to closely scrutinise the evidence but not to reject the evidence on the count as canvassed.
27. Hence now closely scrutinising evidence of the said witnesses and in the said process firstly considering the evidence of first informant PW1, we find that PW1 during the earlier part of his evidence has unfolded of having given the lands for Anganwadi and Anganwadi was constructed upon the said land with tin roof and his house being was at a distance of 1000 to 1500 ft. from it and the appellants were also residing within a distance of 500 ft. from Anganwadi. PW1 during further part of his deposition, deposed about some minor quarrel having occurred 2-3 months prior to the ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 22 incident on the count of Bund, in between his boys and the appellants. We find that the trial court ignored the said aspect of the evidence of the PW1 on the count of the same being in the nature of the omission. We are unable to accept such a reasoning because evidence of PW1 discloses that the said event had occurred about 2-3 months prior to the main incident which had occurred on 31st July, 2001. It is indeed true that during the cross-examination such a facet being in the nature of omission was brought on the record. However, having due regard to the provisions contained in an explanation given in Section 162 of Cr.P.C., it is difficult to accept that the same was liable to be discarded and/or ignored as observed by the trial Court. The same is apparent as first information report being not expected to be encyclopedia containing wealth of all the details and said facet deposed by PW1 being not at all in the nature of an omission amounting to contradiction for viewing it as a deliberate improvement made by PW1 at the trial. We further add that the said facet of evidence was not liable to be discarded itself denotes of existence of rivalry/animosity in between both the parties.
28. The further deposition of PW1 discloses the reason which made Balasaheb and PW2 to go to Anganwadi i.e. while at the house having heard sound of throwing of stones on the tin roof of Anganwadi. His evidence discloses that within 10 to 15 minutes along with his nephew Harishchandra and son Manoj, he had been to ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 23 Anganwadi. Further part of his evidence reveals that the appellants were then sitting near Anganwadi and having questioned them about their such a behaviour and the reply given by the appellants and thereafter the appellants started abusing them.
29. In further part of deposition, PW1 had given the account of incident to the effect:
"A-1 gave blow of axe on the head of deceased.
A3 gave blow with iron bar to deceased. A4 gave blow with iron bar on the head of deceased. A2 gave stick blow on the head of PW1. The other appellants beat PW2. A7 pelted stone which hit nose of PW2. A2 gave blow of stick on the forehead of PW2. A4 gave blow with the iron bar on the nose of PW2."
PW1 deposed that while incident was in progress, his brother PW3 came by motorcycle from Baramati and noticing the incident, he requested the appellants not to beat, but appellants also beat PW3.
His son Manoj intervened. Manoj received injury on his head by the blow given by A2. The other appellants beat his nephew Harishchandra. He received covert injury.
30. PW1 thereafter deposed regarding the steps taken by them after deceased has fell down due to receipt of injuries i.e. himself having been to the house, bringing the jeep and taking injured Balasaheb, PW2, PW3, Harishchandra and Manoj to Silver Jubilee Hospital at Baramati. It reveals the reason because of which Balasaheb was taken to Bhoite Hospital at Baramati for medical treatment i.e. medical advice and himself, PW2, PW3, Harishchandra and Manoj having remained at Silver Jubilee Hospital. About the ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 24 treatment given amongst other, he deposed of 12-13 stitches being given for injury sustained by him, having remained at the hospital for 8 to 10 days, PW2 having received injury on forehead, nose and the same required to be stitched, right finger of PW3 having fractured, Manoj having received injury on the head and the same was also stitched and Harishchandra having received covert injury.
It also discloses deceased undergoing two surgical operations for head injury and having passed away on 15.8.2001. It also discloses his complaint Exh.35 was recorded at the hospital and Baniyan Article 10 was on his person at the time of incident and Towel Article 11 was used by him for covering the injury.
31. Now close scrutiny of the evidence of PW1 in light of answers given in cross-examination does not reveal his core of testimony was shattered in any manner. The perusal reveals an attempt made in cross-examination to elicit the topography of the place of incident for bringing on the record that there could have been other independent witnesses for the incident occurred.
However hardly anything has cropped on the record for coming to the conclusion that any such witness was present at the time of incident. The same is the case regarding an attempt made to establish the theory of deceased Balasaheb having received compensation in view of having received the head injury resulting in his death due to the accident. Similarly cross-examination does not reveal any admission elicited in favour of the appellant for coming to ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 25 the conclusion that PW1 or his party or Balasaheb were the aggressors and/or the incident had occurred due to the act of assault commenced by them. Thus after close scrutiny, we do not find anything elicited in the cross-examination either supporting the defence taken by the appellants or shattering the substratum of the prosecution case of the incident having occurred due to Balasaheb and Pravin having been to Anganwadi and thereafter PW1 along with Harishchandra and manoj and themselves having questioned the appellants, they have ig started assaulting and had assaulted Balasaheb, Pravin, PW1, PW3 as deposed by PW1. The scrutiny reveals the conduct of PW1 being natural after the incident. It negates the defence theory of Balasaheb having sustained the injury in an accident occurred while he was taken on motorcycle to the hospital, from the express recital that injured were taken for a treatment by the jeep brought by PW1. The cross-examination fails to establish any improvement much a less deliberate significant improvement made by PW1 during his deposition with version in his first information report recorded by the Police while he was taking treatment at Silver Jubilee Hospital. Thus we do not find any reason for not accepting the evidence of PW1 and so also any fault on part of the trial Court in accepting and relying upon his evidence, which is duly corroborated by the first information report lodged by him and the medical evidence.
32. Now close scrutiny of the evidence of PW2 Pravin who is ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 26 son of the deceased Balasaheb reveals, his evidence being on the same lines as that of PW1 i.e. the reason because of which along with father he had been to the Anganwadi, upon his father questioning the appellants regarding pelting of the stones, accused no.1, accused no.2, accused no.6 respectively having brought axe, and sticks from their houses and accused no.4 and accused no.3 having brought iron rod, while appellant no.8 , appellant no.7 and appellant no.9 having brought the stones. PW2 in the material part of his evidence regarding the assault has deposed:
"A1 gave a blow with axe by sharp edged on the head of his father, appellant no.4 and appellant no.2 gave a blow with stick on his nose, appellant no.7 gave a blow by pelting stone at his face which hit at his house from left side. PW1 and his sons Manoj and Harishchandra came for intervening. They were also assaulted and beaten with the help of iron bar, stick and stone by the appellants.
As the incident was in progress, his uncle PW3 came from Baramati on motorcycle. He was assaulted and beaten by the appellants. The appellants threatened that they would kill us if we play some mischief with them."
In further part of his deposition, PW2 gave the similar account as given by PW1 regarding the further events of PW1 taking them by a jeep to Silver Jubilee Hospital at Baramati, at the said place they were advised to take his father to another hospital and accordingly his father Balasaheb was taken to Giriraj Hospital at Baramati, himself having received injuries at two places on his forehead and they were stitched. There was fracture to his nose. PW3 had received injury on his head and hand. Manoj had received injuries on his hand and the same were stitched. Harishchandra having ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 27 received covert injury, himself, PW3, Manoj and Harishchandra were treated as indoor patient for 8 days, his father having passed away on 15th August, 2001 and about the articles 12 and 13 being clothes on his person at the time of the incident and lateron seized by Police etc.
33. During the cross-examination of PW2 admitted about the counter case pending against them, his statement being recorded on the next day of the incident by the Police ig while he was in the hospital, himself having told the Police of there was a fight between them and the appellants. He also admitted of having not told the Police of the appellants having brought the weapons from their house. He denied of themselves having been to the place of incident armed with the weapons for teaching them a lesson or his father then being drunk. He also denied the suggestion given to him on the line of defence taken by the appellants regarding the incident and so also that while he along with his father was going to Baramati on motorcycle, his father having sustained head injury due to the slip of motorcycle. However, he admitted of having not told the Police of appellant no.1 having given blow with the sharp edge of the axe. Thus after scrutiny, except the fact of blow being not given from the sharp edge of the axe, his other evidence including that of giving of blow by an axe has remained unshattered. We find that his evidence is duly corroborated by the medical evidence discussed earlier regarding injuries sustained by him and so also the other ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 28 persons, regarding the manner of assault and so also the place at which the injury was caused to PW1, PW2, Balasaheb and Manoj.
We also find that his evidence denotes that PW1 and PW3 had been to the spot after the main incident had commenced and PW4 when the incident was almost over. So also we find that the evidence of PW1 and PW2 corroborates the evidence of each other. We also do not find any infirmities in the evidence of each of the witness either destroying his evidence or the evidence of the other witness.Thus we are unable to find any fault with the trial court for accepting evidence of PW1 AND PW2. Needless to add that theirevidence within itself establishes the fact deposed by them.
34. The perusal of the evidence of PW3 reveals the matters in consonance as deposed by PW1 and PW2 and the details regarding the reason for which he had been to Baramati and after returning from Baramati from motorcycle, having observed the incident in progress at Anganwadi. His evidence discloses the presence of the appellants and of his brother PW1 and nephew PW2, Manoj and Harishchandra. It discloses that in spite of his request to the appellants not to beat , they continued the beating and also having beaten him. PW3 in his further part of incident also deposed that then he had seen Balasaheb lying on the ground, bleeding on his face and himself being unconscious and the steps thereafter taken for a medical treatment by taking the injured to Silver Jubilee Hospital at Baramati and thereafter Balasaheb being shifted to the ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 29 hospital of Dr. Bhoite. He deposed of having received injuries on left hand and head; PW1 on head and hand; Manoj on head;
Harishchandra on back and OW2 on head and nose. He also deposed of Balasaheb having died on 15th and Articles 14 and 15 being clothes worn by him at the time of incident and the same later on were seized by Police under panchanama.
35. Upon close scrutiny of the evidence of PW3, we find that he denied of appellant no.1 having received bleeding injury on head and so also appellants 1 to 6 having injuries on their person with some of them bleeding injuries. He denied that within two minutes after himself reaching the spot, injured were shifted to the hospital and consequently the defence theory of his all probability having reached late and not having witnessed the incident. He also denied that all persons from Vasti having gathered and reached the scene of offence. The material brought in the cross-examination by way of his conduct of having not asked any of the injured regarding who was the assailant or to any other persons gathered at the spot on the contrary implies of himself having witnessed the incident. He duly denied all suggestions given to him on the line upon the defence of the appellants. He also denied of having received injuries due to having come in contact with electric pole during scuffle and having received injuries. Thus after perusal of the evidence of PW3, we do not find any reason for discarding the same and consequently any fault on the part of the trial court for ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 30 accepting the matters deposed by him.
36. The evidence of PW4 reveals that deceased was his paternal uncle and on the relevant day in the evening he had been to his house. It discloses that after hearing the sound of pelting of stones, Balasaheb and PW2 had been to Anganwadi to ascertain the happenings and within 5 to 10 minutes, he had heard shouts and thereafter rushed to the said spot along with one Rajkumar Deokate and found Balasaheb lying on the spot. His daughter Poonam was also lying on the spot and the appellants were present at the spot.
He deposed of PW3 requesting the appellants not to beat himself and so also Rajkumar Deokate but the appellants threatened them.
He deposed of PW2 having injury on his face towards the left side of his nose, PW1 on head. he deposed of having taken Poonam to her home and along with Rajkumar having kept injured PW1, Manoj, Harishchandra, PW2, Balasaheb and PW3 in the jeep and all of them were taken to the Silver Jubilee Hospital and from the said place serious Balasaheb to the hospital of Dr. Bhoite and Balasaheb having passed away after 15 days.
37. In the cross-examination of PW4, it was brought on the record that he has not told the Police about the incident on 1st of August when they had been to the Silver Jubilee Hospital. It was also brought on the record that on the day of incident, he had not accompanied Balasaheb and PW2 when they had rushed towards ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 31 Anganwadi, nor even thereafter for about 4 minutes or even after hearing exchange of the words. He was unable to say as to who had brought the jeep on the spot but further replied that it was either PW1 or PW3. He admitted of having not told to the Police of along with Rajkumar having kept injured in the jeep. He denied of appellants no. 2 to 6 having injuries on their person or accused nos.
7 to 9 being not present at the spot. However, he admitted that when he had reached the spot, the fight was already over. He denied of not being to the house of Balasaheb on the relevant day and having deposed falsely due to close relations with injured and Balasaheb.
38. Thus after scrutiny of the evidence of PW4, we are unable to accept the criticism that he is got up witness or his conduct is not consistent giving an impression that he was not at all present at the relevant time on the spot. We are unable to find any fault with the conduct of PW4 of not rushing to the spot because he was the resident of another village and having been to the said house for meeting his relative and furthermore Balasaheb had been to the place of incident along with his son PW2. The criticism advanced does not survive because the evidence of PW4 reveals that after some time he had been to the spot. However, we do accept the criticism advanced that he is not material witness regarding the incident occurred because of the admission given by PW4 that the incident was over when he has reached the spot. However, we find ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 32 that his evidence does not contain an element for discarding the same altogether on the count of himself being got up witness as no material for coming to such a conclusion has surfaced from the cross-examination except the isolated feature of the daughter of Balasaheb also being on the spot at same point of time and PW4 having seen her at the spot. We are unable to discard his evidence as we do not find that either in the evidence of PW4 or in the evidence of any other witnesses a contrary facet has been brought on the record that Poonam never had been to the spot of incident.
Thus the evidence of PW4 to some extent also corroborates the evidence of the earlier witnesses and particularly regarding the presence of appellants at the said spot.
39. Having considered the oral account of incident unfolded by the prosecution through PW1 to PW3 who were involved in the incident and corroborative evidence of PW4 who had reached the spot soon after the incident and the medical evidence regarding effect of the assault being in conformity with the account of incident unfolded by the said witnesses, now considering the findings arrived by the trial court on the said basis, we find it extremely difficult to accept the conclusion arrived by the trial court for the reasons recorded in paragraph no.13 that all the appellants were the members of unlawful assembly and were armed with the weapons and the murder of Balasaheb was committed in prosecution of common object of unlawful assembly and as such each of them was ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 33 liable for the said murder and so also each of them having committed the offence under Section 148 Section 149 of Indian Penal Code. As a matter of fact, we find that the trial court arrived at such a conclusion and particularly about the existence of unlawful assembly without properly assessing the evidence surfaced and upon the fanciful reasoning based upon the assumptions.
40. We are of such a considered opinion as the oral account of incident as disclosed by PW1, PW2 and PW4 reveals that on the said day Balasaheb and PW2 had been to Anganwadi due to hearing of pelting of stones on the tin shed and the incident has occured after appellants present at the said spot were questioned by them.
Hardly any dispute can be entertained about the aforesaid crude facet which is duly established by the evidence of said three witnesses. The same duly supports submissions canvassed by the learned counsel for the appellants that in event of Balasaheb and PW2 having not been to the said spot, there was no reason for occurring of any incident. The learned counsel, therefore, was very much right in submitting that hence it cannot be gainsaid that the appellants forming an unlawful assembly with a common object of murdering Balasaheb, were lying in wait at Anganwadi in anticipation of Balasaheb coming at the said place. He was further right in submitting that even assuming that due to pelting of stones some persons from house of Balasaheb might have been to the said place to ascertain the happenings, still it cannot be gainsaid ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 34 that that act of pelting stones was committed by the appellants for provoking Balasaheb and the others, and for coming to the said spot for committing the murder of Balasaheb and assaulting the other.
We also find substance in the submissions that prosecution evidence miserably fails to establish that the said pelting of stone was effected by the appellants.
41. Since on the basis of the evidence of PW2 who had been firstly to the spot along with Balasaheb, it is established that after questioning as deposed by him appellant nos. 1 to 4 and 6 to 9 had brought the weapons and the said facet having remained unshattered during the cross-examination, we find it difficult to accept the reasoning given by the trial Court that the appellants must have kept the arms near the Anganwadi with intention of using the same in event of Balasaheb coming to Anganwadi. Needless to add that the said observation is not a logical inference drawn on the basis of evidence and is merely surmise. The trial court on the basis of the said factors/reasoning has come to the conclusion of the appellants having formed unlawful assembly. Since the same is not based upon evidence and/or logical inference arising from the evidence, cannot be legally sustained, we are unable to accept the same.
42. Furthermore we are unable to accept the same after taking into consideration the account of incident as disclosed by the ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 35 evidence of PW1 , PW2 and PW3. At the cost of repetition, it can be said that out of the said witnesses PW2 having firstly reached the spot along with Balasaheb, his evidence would be of immense importance to ascertain whether there existed an unlawful assembly as concluded by the trial court. Without reiterating the evidence of PW2 already recited by us hereinabove, it can be safely said that his evidence does not indicate that the incident of assault had commenced moment along with Balasaheb he had been to the said spot. Occurring of such an event might have justified drawing the conclusion of existence of unlawful assembly. However, since his evidence reveals that thereafter Balasaheb questioning the appellants about pelting of stones on the roof, exchange of words had occurred in between Balasaheb and the appellants and thereafter the appellants had brought the weapons from the house militates against the submission canvassed of existence of unlawful assembly with members armed with the weapons for the purposes of murdering Balasaheb and assaulting the other witnesses as erroneously concluded by the trial Court.
43. Mr. Khamkar, learned counsel for the appellants by drawing attention to the evidence of DW1 and DW2 regarding the presence of the injuries on the person of the appellant nos.1 and 5 noticed by DW1 on 2nd of August, 2011 at 12.15 p.m. and on the person of appellants no. 2,3 and 4 on 1st of August, 2001, urged that presence of the said injuries are indicative of the occurrence of free ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 36 fight between the parties at the time of incident. It was canvassed that by and large there being an attempt on part of the prosecution witnesses to suppress the said injuries or at least the prosecution not explaining the same leads to the conclusion of the prosecution witnesses having suppressed genesis of the incident and having not told the truth, the trial court ought to have discarded their evidence and ought to have acquitted the appellants due to the lack of the truthful evidence on the record.
44. Though the aforesaid submission apparently appears to be attractive after considering the evidence of the said witnesses, we do not find any merit in the said submission. Such a conclusion is obvious as after perusal of the evidence of DW1, we find that though examined as a prosecution witness PW5 , no effort was then made to bring the relevant material on the record which was brought lateron by examining her as DW1. Apart from the same, her evidence reveals that she had examined them on 2nd of August, 2001 at about 12.15 p.m. i.e. much after the incident. She also opined that the injuries were simple. Even the said facet is clear after considering the nature of injuries described by her. Furthermore her evidence also discloses that appellant no.1 had already taken a treatment from the other doctor, both of them had not brought any Police yadi. Furthermore she deposed that though they had given history of assault, they had not told the names of the assailants.
Similarly the perusal of evidence of DW2 reveals that 7 injuries ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 37 noticed by him on the person of appellant no.3 were the abrasions and only one was contusion and all of them were simple injuries.
Even the case qua the injuries of appellant no.4 is no different as out of two injuries, one is abrasion, while the second is in the nature of complaint made of a pain without any external injury or swelling.
Similarly the case qua the injuries of appellant no.2 is also not different i.e. swelling on right wrist, other abrasion and third one complaint of pain without any symptoms. Without embarking upon detail dilation about the said evidence, it can be safely said that even the said evidence fails to make out a case of any serious injury was sustained by said appellants no. 1,2,3,4 and 5.
45. Now considering the nature of the said injuries sustained by the said appellants, the incident having lasted for 4 to 5 minutes as surfaced during the evidence of PW2, the nature of the incident, the same having occurred at about 8.30 p.m. during night time, possibility of presence of such injuries having gone unnoticed by the witnesses, cannot be ruled out. Needless to say, hence it is difficult to accept that having regard to the nature of injuries sustained, ignorance of such minor injuries claimed by the prosecution witnesses can be branded as an deliberate attempt made by them to suppress genesis of the incident.Since it is settled legal position that in event of any injuries sustained by the accused persons involved in an incident being a minor or superficial as in the present case, non explanation of the same will not warrant drawing of an ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 38 adverse inference against the prosecution, we do not find the substance in the submission canvassed by the learned counsel by pointing the aforesaid evidence. Similarly no admission being elicited during the cross-examination of the prosecution witnesses of occurrence of free fight or establishing the said facet, we also do not find any substance in such a submission canvassed. Similarly we also do not find any substance in the submission canvassed that registration of a counter case by the Police being suggestive of occurrence of a free fight in between the parties or at least an attempt on part of prosecution witnesses to assault the party of the appellants. It is difficult to accept the said submission after having due regard to the attitude presently developed by the investigating agency regarding the counter complaint of rather than themselves taking the decision in the matter, referring the same to the Court of law. We also add that in the said context we do not find anything brought on the record during the cross-examination of the investigating officer for supporting the theory attempted to be canvassed.
46. Now continuing the process of determining the existence of the unlawful assembly, if any, as alleged and discarding the submission for not accepting the evidence of PW1 to PW4, still after perusal of their evidence we are unable to find any evidence surfaced denoting existence of unlawful assembly. We are of such a considered opinion as account of assault given by PW2 and PW1 who ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 39 had been to the spot of incident some time after Balasaheb and PW2 and so also that of PW3 who had arrived at the spot at the end of the incident and PW4 practically after the incident was over does not reveal any other facet indicating existence of an unlawful assembly as claimed by the prosecution. The same is obvious as the evidence failed to disclose any alarm/call was given by any of the appellant during the incident either from commencement or uptill conclusion to companion accused for commission of act denoting existence of unlawful assembly. ig Thus in our humble opinion the prosecution evidence having miserably failed to establish existence of unlawful assembly , such a conclusion erroneously arrived by the trial Court cannot be sustained.
47. Now considering the reason behind Balasaheb meeting with homicidal death i.e. injuries sustained by him and due to head injury sustained by him and after careful perusal of the evidence of PW1 , PW2 and even PW3 and PW4, we find it difficult to attribute any role played by the appellants no.2 and 5 to 9 in causing the head injury to Balasaheb. The same is apparent as none of the witnesses had attributed any role to any of the said appellant nor there exists any evidence inferring any act committed by them for causing the said injuries or even assaulting Balasaheb. We may add that the incident having occurred in melee for fastening the liability, the cogent evidence being necessary regarding the act committed by individual appellant, the generalize statement of an assault ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 40 without pinpointing the accused, committing such act being not sufficient, such a conclusion is inevitable. Having regard to the same and since conclusion is arrived of the prosecution failure to prove existence of unlawful assembly with the object as claimed by the prosecution, the liability fastened on the said appellants no.2 and 5 to 9 for the murder of Balasaheb erroneously by the trial Court cannot be legally sustained and they would be required to be acquitted from the charge of commission of such offence for which they were held guilty and sentenced by the trial Court.
Needless to add, sentence imposed upon them on the said count will be also required to be quashed and set aside.
48. Now considering the medical evidence, it is amply clear that Balasaheb had died due to head injury sustained by him. PW5 who had firstly examined him and noted his injuries, has deposed that the said injury could be caused with hard object within 1 hour.
She has also deposed that the same was possible with the help of axe with the blunt side coming into contact with the head. The account of incident given by PW1 that appellant no.1 had given axe blow on the head of Balasaheb has remained unshattered. His evidence that appellant no.3 had given blow with iron bar on Balasaheb and so also accused no.4 gave a blow with iron bar on the head of deceased had also remained unshattered. All the said evidence in turn reveals appellants no. 1,3 and 4 having given blows of deadly weapon upon Balasaheb i.e. appellants no.1 and 4 ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 41 on his head. All the said evidence denotes that all the said appellants while making such assault were acting in furtherance of their common concrete to cause his death. Needless to add that considering the manner in which the said acts were committed would lead to no other inference.
49. Now support/corroboration to the evidence of PW1 in addition to the medical evidence already referred hereinabove is also found from the evidence of PW2 to the effect that the appellant no.1 had given axe blow by sharp edge on the head of his father.
The learned counsel for the appellants urged that the evidence of PW2 does not disclose the appellants no.3 and 4 having given blow of iron bar to Balasaheb and as such there being no corroboration to such a claim staked by PW1, they are entitled for the benefit. After considering the evidence of PW2 in proper perspective, we are unable to accept the said submission. The evidence of PW2 about which we have made the reference earlier in terms reveals that the appellant no.3 and appellant no.4 had brought the iron bar. Thus corroboration to such effect to the evidence of PW1 is found from his evidence. Furthermore, his evidence considered in proper perspective reveals that after the blow of axe was given on the head of his father, appellant no.4 and appellant no.2 had given blow with stick on his nose while appellant no.7 had pelted stone on his face. In further part it reveals that the same has caused injury on his face and medical evidence denotes he had sustained the ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 42 fracture of nosal bone and maxilla. On backdrop of the said situation and sustaining of fracture would have been an immediate act, it is difficult that then he could have witnessed the further acts of assault committed qua his father. In view of the same, merely because of the absence of such evidence cannot detract evidentiary value of the claim staked by PW1 nor it can be said that the appellants no.3 and 4 would be entitled for the benefit as urged.
Needless to add that the evidence of PW2 does not contain any admission to the effect of during the incident appellants no.3 and 4 having not attacked his father as claimed by PW1. Since the corroborative evidence of PW 3 and 4 being already recited, we do not propose to make any detail dilation about the same except stating that their account about the matters seen by them is also consistent with the claim staked by PW1 and PW2. Thus in short, we find that the head injury was sustained by Balasaheb as a result of assault with deadly weapons made by appellant nos. 1, 3 and 4 and as such the evidence having established their liability of committing offence under Section 302 read with 34 of I.P.C.
50. Now considering the account of the incident as disclosed from the evidence of injured witnesses PW1, PW2, PW3 and so also PW4 regarding assault made upon said witnesses but without repeating material part due to the same being recited earlier, we find that the same duly also establishes active involvement of appellant no.2, 5 , 6 , 7, 8 and 9 in assaulting PW1, PW2, PW3 and ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 43 Manoj and Harishchandra by means of weapons such as stick, iron bar and stones and causing them injuries as deposed by respective witness. It can be added that the said evidence not only reveals injuries caused to the respective witness but also establishes injuries caused to his companions and the authors of the same.
Additionally the evidence of PW3 also establishes assault effected on him and the others and injuries sustained by the concerned and on particular appellant being responsible for the same. The evidence of PW4 also discloses regarding the assault effected upon PW3 and so also the nature of injuries suffered by PW1, PW2, PW3, Manoj and Harishchandra. The fact of Pw1, PW2 , PW3 and Manoj having sustained injuries is also duly established from the evidence of PW5 and so also to some extent by evidence of PW6. Thus the evidence of the relevant witnesses is found corroborated from the medical evidence regarding nature of injuries received and about the part of the body of the said witness which was assaulted. All the said evidence duly establishes the guilt of A2, A5 to A9 in commission of offence under Section 324 of I.P.C. Hence, though we have acquitted the said appellants from commission of offence under Section 302 of I.P.C., we find them guilty for the offence punishable under Section 324 of I.P.C. and sentence them to suffer rigorous imprisonment for 9 months.
51. Lastly with regard to the decisions in the case of Masalti, Lalji, Kanwarlal, Balaur Singh and State of Haryana (supra) ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 44 relied by the learned counsel for the appellants and out of them most being regarding the incidents involving the free fight and/or the other principles regarding ascertaining of existence of unlawful assembly, though we have carefully considered the same, we do not propose to make any threadbare dilation regarding each of the decision in view of the conclusion arrived by us that there was no unlawful assembly of the appellants nor there was a free fight in between the parties. Needless to add, the principles regarding determination of an unlawful assembly and so also about the appreciation of the evidence stated in the said decisions about which no quarrel can be entertained being duly taken into consideration while deciding the present appeal, would be an another reason for ourselves not making threadbare dilation about the said decisions in which facts are not akin with the facts in the instant case.
52. In the premises aforesaid, we partly allow the appeal in terms of the following order :
I. The Appellants/original Accused Nos. 1 to 9 are acquitted of the offences punishable under Section 148 and 149 of the Indian Penal Code.
II. The Appellant/Accused Nos. 2,5 to 9 are acquitted of the offence punishable under Section 302 of the Indian Penal Code.
III. The Appellant/ Original Accused Nos. 1,3 and 4, however, are convicted for the offence punishable under Section 302 read ::: Downloaded on - 09/06/2013 19:29:22 ::: apeal476-07 45 with S.34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life, and to pay fine of Rs.5000/- each and in default, to suffer further rigorous imprisonment for two months.
IV. Appellant/Accused Nos. 2, 5 to 9 are convicted for the offence punishable under Section 324 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 9 months.
Appeal is disposed of in the aforesaid terms.
(P.D. Kode, J.) (V.M. Kanade, J.)
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