Bombay High Court
Vijay Pundalik Sagwekar And Ors. vs State Of Maharashtra on 15 October, 1979
JUDGMENT C.S. Dharmadhikari, J.
1. This is an appeal filed by the original accused Nos. 2, 3 and 4 against the order of conviction and sentence passed by the Additional Sessions Judge, Greater Bombay in sessions Case No. 363 of 1976 convicting the accused for the offence punishable under section 302 read with section 34, Indian Penal Code for the murder of one Mohan and then sentencing them for the said offence to suffer imprisonment for life. The present appellants were also directed to suffer imprisonment for 3 years on other counts also for assaulting the prosecution witnesses i.e. (P.W. 2) Satish Jairam Salunke, and (P.W. 3) Arun Laxman Patil.
2. Initially all these appellants were jointly tried with one Vijay Baburao Palande, original accused No. 1. However the said accused was acquitted of the charge under section 302 read with section 34 of the I.P.C. but was convicted for the offence punishable under section 324 and was sentenced to suffer imprisonment equal to the period of his detention.
3. The State Government has not filed any appeal against the said acquittal of accused No. 1 for the offence punishable under section 302 read with section 34 of I.P.C. Thus we are only concerned in this appeal with the original accused No. 1. Vijay Pundalik Sagwekar, accused No. 3 Baburao Tukaram Shelar and accused No. 1. Chandrakant Subhan Salvi.
4. It is the case of the prosecution that accused persons as well as the prosecution witnesses are residing in the same locality known as Kannamwar Nagar Vikhroli, (East), Bombay. There were two Mandals in the said locality, one known as Mahad Taluka Mitra Mandal and another as Om Jaya Datta Mandal. It appears that tournaments use to take place among these two Mandals and in the said tournaments there was quarrel in which (P.W. 7) Sadashiv took leading part on behalf of his mandal i.e. Om Jaya Datta Mandal, as a result of which the said Mandal was disqualified from further participation in the tournaments and this appears to be the genesis of the dispute between these two Mandals.
4-A On 22nd of October, 1975 a birthday party took piece at the place of Shri Mohite who was living in Building No. 90. Shri Mohite belonged to the Mandal of prosecution witness i.e. Om Jaya datta Mandal. After the party was over the prosecution witness were returning back. When Arun Patil, (P.W. 3), Satish (P.W. 2), Mohan the deceased, Sunil Vichare (P.W. 5) and Chandrakant (P.W. 6) came upto the building No. 90 Chandrakant went ahead of Sunil at a distance of few paces. Then Sunil asked him ''Kuthe Paltos Bhauji Sarkha''. As soon as these words were uttered, accused came on the road from near building No. 90. On accused No. 2 questioning Sunil Vichare as to whom he was addressing in these words, Sunil told him that they were not meant for him. On this accused No. 2 threatened Sunil Vichare. In the meantime Sadashiv came to the spot. Accused No. 2 told him about this incident. Sadashiv told the witnesses not to tease the members of the group of accused Nos. 1, 2, 3 and 4 and asked Sunil Vichare to a apologize. Accordingly Sunil apologized and then accused as well as the witnessess returned to their respective places.
5. According to the prosecution thereafter on 23rd October, 1975 at about 7.45 p.m. When Satish, Mohan, Sunil, Arun and Prabhakar were going for a walk. They came upto the corner of the building No. 89 and then returned back for going to their respective houses by the same road. When they were returning back they noticed a motor lorry parked on the road in front of building No. 88. When they reached upto the place where Motor lorry was packed they saw accused coming ahead on the road from behind the motor lorry armed with weapons. According to the prosecution accused No. 1 had stick and accused Nos. 2, 3 and 4 each had iron bars in their hands. Accused No. 1 then gave stick blows on the back near left buttock of Satish (P.W. 2). Accused No. 3 also assaulted him with iron bar on his back. He also saw then accused No. 4 standing near the motor lorry. Then accused No. 1, 2, 3 and 4 assaulted Mohan Gaikar and Arun Patil with weapons condition on the road. As a result of this assault Mohan fell down in the injured condition on the road. Satish was also lying there nearby. Arun and Prabhakar (P.W. 3 and 4) ran away and ultimately came to the house of Sadashiv Terse (P.W. 7) and informed him about the quarrel. These two witnesses came to the spot with Sadashiv. However, in the meantime they found that Mohan and Satish were already removed to the hospital by a police constable. Therefore they also went to the hospital. In the hospital Satish and Arun were treated by Dr. Mrs. Sangamnerkar. Mohan was seriously injured and, therefore, was kept in emergency ward where he ultimately died on 24th October, 1975. Arun and Satish were discharged from the hospital after some treatment. The post-mortem examination on the dead body of Mohan was conducted by De. Mrs. Randive (P.W. 15) who noticed the following external and internal injured on the person of the deceased :
''1) Sutured wound on right forehead 2 1/2 in length.
2) Sutured wound on the occipital region 2'' in length.
3) Minor abrasions over vertex.
4) Linear contusion 6'' in length right side of back.
5) Linear contusion on left number right 4'' in length.
6) Linear abrasion 8'' in length left side of back.'' Internal;
1) Extensive haematomain scalp extending from frontal to parietal region more on the right side.
2) Fracture multiple linear in pariatoccipital region also extending into temporal plate.
3) Extensive subarachnoid haemorrhage.
4) Laceration of carebellum left side.
5) Small are of laceration of temporal lobe''.
According to her the cause of Mohan's death was traumatic intracranial haemorrhage with laceration of brain and facture of skull. According to the doctor the cumulative affect of all internal injuries were necessarily fatal and injuries were possible by blows of iron bars like Articles Nos. 5 and 6. In the cross-examination the Doctor has admitted that external and internal injuries may be caused by blows of stick Article No. 4.
6. Dr. Sangamnerkar (P.W. 13) also found 8 injuries o the person of Satish and in the same hospital Dr. Maste had examined Arun (P.W. 3) and had noticed about 6 injuries on his person. As a result of the information receiver P.S.I. Ground came to the spot and drew the necessary panchanama. He also seized the articles such as sticks and iron bars. The statement of Satish was recorded vide Exh. 13 which was ultimately treated as first information report in the case and thereafter accused persons were arrested. Accused No. 1 Vijay Baburao Palande was arrested on 24th October, 1975. Accused No. 3 Baburao Tukaram Shelar was also arrested on the same day whereas accused No. 4 Chandrakant Subhan Salvi was arrested on 25th October, 1975 and accused No. 2 Vijay Pundalik Sagwekar was arrested on 9th December, 1975. Thereafter usual investigation was carried on all these accused were prosecuted for the offence punishable under section 302 read with section 34 of the I.P.C as well as under section 324 read with section 34 of the I.P.C.
7. In support of its case the prosecution has examined as many as 19 witness Sunil, (P.W. 5), Chandrakant (P.W. 6), Sadashiv Terse (P.W. 7) speak about the incident which took place on 22nd October, 1975, which according to the prosecution was the motive for ultimate assault which took place on 23rd October, 1975, Satish (P.W. 2), Arun (P.W. 3) and Prabhakar (P.W. 4) are the eye witnesses. These witnessess speak about the earlier incident as well as the actual assault which took place on 23rd October, 1975. Other witnesses are formal in nature being panch witnesses. So far as the medical evidence is concerned Dr. Parikh (P.W. 12), Dr. Mrs. Sangamnerkar (P.W. 13), Dr. Janardhan Dayabhai Patel (P.W. 14) and Dr. Mrs. Nilima Uday Randive (P.W. 15) proved the various injury reports as well as the post-mortem examination report. Kisan Lala Goud (P.W. 17) is the investigation officer. The prosecution has also examined some other police officers to prove the arrest and other panchanama.
8. The defence of the accused was one of total denial. According to the accused person they were falsely implicated in this case at the instance of Sadashiv terse (P.W. 7). The defence has not led any evidence in support of its defence. After appreciating all the evidence on record the learned Additional Sessions Judge came to the conclusion that the deceased Mohan died a homicidal death on 24th October, 1975 as a result of assault by the accused persons. For the same assault he held accused Nos. 2, 3 and 4 guilty for the offence under section 302 read with section 34 of the I.P.C. He also held them guilty for the assault on Satish (P.W. 2) and Arun (P.W. 3). Therefore ultimately the learned Additional Sessions Judge convicted the accused appellants for the offence under section 302 read with section 34 of the I.P.C. for the murder of Mohan and sentenced them to suffer R.I. for life. He also sentenced them to suffer R. I. for a period of 3 years for the other offences. So far as the accused No. 1 is concerned he sentenced him for the offence under section 324 of the I.P.C. to suffer R.I. for the period equal to the period of his detention. As already observed the learned Additional Sessions Judge acquitted accused No. 1 of the offence of murder. It is this order of conviction and sentence which is challenged in this appeal by original accused Nos. 1, 3 and 4.
9. Shri Kamat, the learned Counsel appearing for the accused, contended before us tat the learned Additional Sessions Judge has committed an error on convicting accused Nos. 2, 3 and 4 for the offence of murder with the aid of section 34 of the I.P.C., when the learned judge has found accused No. 1 is not guilty of the said offence. According to Shri Kamat on the basis of the same reasonings accused Nos. 2, 3 and 4 also could not be held guilty for the offence of murder under section 302 read with section 34 of the I.P.C. Shri Kamat further contended that from the evidence of Sadashiv (P.W. 7), it is quite cleat that some disputes were going on between two mandals and Sadashiv had a reasons to implicate accused persons falsely in the present case, Shri Kamat, further contended that it is quite obvious from the evidence of Sadashiv (P.W. 7) as well as the evidence of other prosecution witnesses i.e. Satish (P.W. 2), Arun (P.W. 3), Prabhakar (P.W. 4), Sunil (P.W. 5) and Chandrakant (P.W. 6) that they had a grudge against the accused persons. It is also clear from their evidence that their evidence is discrepant and self contradictory. Satish (P.W. 2) has come with a different version at different stages and has tried to improve the story from time to time other witnesses have also practically done the same thing. In these circumstances according to the learned Counsel, it will not be sale to convict the accused persons for the serious crime of murder on the basis of such discrepant and unreliable evidence.
10. On the other hand it is contended by Shri Parkar the learned Public Prosecutor., that the learned Additional Sessions Judge was right in coming to the conclusion that all these accused persons acting in furtherance of their common object assaulted the deceased as well as the prosecution witnesses. According to the learned Public Prosecutor, Satish (P.W. 2) and Arun (P.W. 3) were actually injured in this assault and were also treated in the hospital. Immediately after the incident a report was also lodged to the police in which the names of accused persons, were also disclosed. The evidence of all these prosecution witnesses is trust worthy and was rightly accepted by the learned Additional Sessions Judge. Shri Parkar further contended that as a matter of fact acquittal of accused No. 1 for the offence punishable under section 302 read with section 34 of the I.P.C., itself is illegal and, therefore though this Court cannot alter his acquittal into conviction as the State has not filed any appeal, this Court can safely record a finding that his acquittal is wrong and illegal, and therefore other accused persons could safely be convicted for the offence of murder, with the aid of section 34 of the I.P.C.
11. Therefore, from the rival contentions raised before us it is quite clear that accused -appellants are not challenging the fact that some incident took place on the 23rd October, 1975 in which deceased Mohan as well as the prosecution witnesses Satish (P.W. 2) and Arun (P.W. 3) received certain injuries which were found on their persons by the Doctor. Finding of these injuries on the persons of the prosecution witnesses or on the deceased is not challenged before us. The accused have also not challenged before us the finding that deceased Mohan died a homicidal death as a result of injuries sustained by him in the incident which took place on the 23rd October, 1975. The only contention raised before us on behalf of the accused is that the prosecution has failed to prove beyond reasonable doubt that accused Nos. 2, 3 and 4 were either involved in the assault or were responsible for causing injuries found on the person of Mohan, Satish or Arun. In view of the contentions raised before us, it is not necessary to make a detailed reference to the medical evidence on record.
12. Evidence according to the Additional Sessions Judge besides the direct evidence of the prosecution witnesses and particularly that of Satish (P.W. 2) Arun (P.W. 3) and Prabhakar (P.W. 4), there is no other independent circumstantial evidence to connect the accused with the crime. It is no doubt true that certain iron bars and sticks were discovered at the instance of accused but obviously the said weapons are not connected with the crime because no blood stains etc. were noticed on the said weapons. Even the learned Additional Sessions Judge, in para 13 of his judgment has observed that the evidence of the discovery of the weapons adduced by the prosecution witnesses is of doubtful character. However, on the basis of the evidence of eye witnesses read with the medical evidence on record, the learned Additional Sessions Judge found that the weapons used by the assailants were similar to the weapons Articles 4, 5 and 6. The learned Additional Sessions Judge has also relied upon the evidence relating to the finding of blood stains on the clothes of the victim as well as at the scene of the offence he has accepted the evidence of the eye witnesses and on that basis has recorded the finding of guilty, qua each of the accused persons, Before us also he learned Public Prosecutor Shri Parkar has merely relied upon the evidence of the eye witnesses i.e. Satish (P.W. 2)., Arun (P.W. 3) and Prabhakar (P.W. 4) which gets substantial corroboration in the evidence of Sunil (P. W. 5), Chandrakant (P.W. 6) and Sadashiv (P.W. 7) as well as the medical evidence on record. Thus in substance in this case prosecution is mainly relying upon the evidence of eye witnesses.
13. From the evidence of Sadashiv (P.W. 7) as well as Sunil (P.W. 5) and chandrakant (P.W. 6), it is quite clear that the accused as well as the prosecution witnesses are staying in the same locality. There are two Mandals in the said locality. Complainant party belongs to the Mandal known as Om Jaya Datta Mandal whereas the accused belongs to one Mahad Taluka Mitra Mandal, On 22nd October, 1975, Satish Arun, Sunil, Chandrakant and Mohan attended the birthday party at the residence of one Mohite. After the said party was over they were returning home. At that time accused persons also came there. Chandrakant went bit ahead and, therefore, Sunil asked him ''Kuthe Paltos Bhauji Sarkha.'' On this accused No. 2 questioned Sunil as to whom he was saying like that. Sunil tried to tell him that those words were not meant for him. Ultimately Sadashiv (P.W. 7) came to the spot. He consoled accused No. 2 and asked Sunil to tender apology. Accordingly an apology was tendered by Sunil. Thereafter they dispersed. This part of the evidence of all these witnesses is wholly consistent and trustworthy. However, it was contended by Shri Kamat that there is some discrepancy in the said evidence and therefore, it will not be safe to accept the testimony of these witnesses, even regarding to the alleged incident which took place on 22nd October, 1975. He also contended that they were not knowing the accused persons very well and from their evidence it also appears that it was not possible for them to give full name of Mohite at on whose place they had gone for the birthday party. It was not possible for them even to tell the name of the daughter of Mohite, whose birthday was being celebrated and gifts were given to her. It is no doubt true that there is some discrepancy in that behalf, however, in our opinion such a discrepancy is but natural. We have gone through the evidence of these prosecution witnesses and in our opinion the learned Additional Sessions Judge was right in coming to the conclusion that the said part of their testimony is truthful. From the evidence of these prosecution witnesses, namely evidence of Satish (P.W. 2), Arun (P.W. 3) Prabhakar (P.W. 4), Sunil (P.W. 5) Chandrakant (P.W. 6) and Sadashiv (P.W. 7), it is quite clear that such an incident took place on 22nd in which ultimately Sunil was asked to tender an apology. From this evidence it is further clear that because of certain utterance of the prosecution witnesses, accused persons were offended though it is true that ultimately the matter was amicably settled after tendering of an apology by Sunil. The apology or quarrel between the two mandals and the immediate incident which took place on 22nd October, 1975, appears to be genesis or motive for the incident which took place on 23rd October, 1975.
14. So far as the incident which took place on 23rd October, 1975 is concerned, we have on record direct evidence of Satish (P.W. 2), Arun (P.W. 3) and Prabhakar (P.W. 4). Out of them P.S Satish and Arun had actually received injuries in the said incident. From the evidence of Satish (P.W. 2) it is quite clear that he knew all the accused persons very well. According to him on the night of the 22nd October, 1975 accused No. 2 had given him threats. Then on 23rd October, 1975 as usual they had gone for a walk towards building No. 88 with Mohan and others. They went upto the corner of building No. 89 and then returned to their respective places by the same road. Then they saw a motor lorry parked on the road in front of building No. 88. Thereafter they saw accused Nos. 1, 2 and 3 coming towards them from behind the motor lorry, armed with weapons. Accused No. 1 had a stick in his hand whereas accused Nos. 2 and 3 had iron bars in their hands, then they started assaulting Satish (P.W. 2). When this assault was going on, deceased Mohan Gaikar and Arun Patil came to the rescue of Satish (P.W. 2) and thereafter they were also assaulted by the accused persons i.e. accused Nos. 2, 3 and 4 with the iron bars, as a result of this assault Mohan fell down and ultimately died in the hospital. Satish (P.W. 2) was also removed to the hospital by Pawar (P.W. 11). Doctor has noticed 6 injuries on his person. Dr. Sangamnerkar (P.W. 13) speaks about these injuries According to her the injuries found on the person of Satish could have been caused by the weapon before the Court. From the cross-examination of Satish (P.W. 2) it is quite obvious that he has tried to improve the story from stages to stages. From the first information report lodged by this witness, it is quite clear that at the earliest opportunity he has not spoken about the motor lorry which was standing on the road nor it was possible for him or give the details about the names and addresses of the accused persons. It was not possible for him to give the names of the members of his mandal or mandal of the accused. It has also come in his evidence that on 23rd October, 1975 they had gone for a walk after they met each other casually on the road. There is some discrepancy in his deposition as to the actual place where the incident took place. Certain omissions and contradictions from his earlier statement before the police were brought on record. From his deposition it is also clear that he has clearly tried to save accused No. 4 though in his earlier statement before the police he has attributed a specific role to the accused No. 4. Before the Court he stated that he did not see accused No. 4 assaulting anybody. From his deposition it is also clear that when he was being assaulted by accused Nos. 1, 2 and 3 deceased Mohan came to his rescue and, therefore, accused assaulted him. Similarly Arun Patil was assaulted when he came to his rescue. Then he speaks about his injuries. When the previous statements made by him before the police were brought to his notice he want to the extent of saying that these statements were not read over or explained to him. Ultimately he had to admit in his cross-examination that he was knowing the accused No. 2 only for 7 or 8 days prior to the incident and not for 7 or 8 years as stated by him earlier. He also admitted that he had seen accused No. 1 once and thereafter he saw him for the first time at the time of assault. He denied the suggestion made in the cross-examination that father of accused No. 2 is a teacher in a Primary school of Municipal Corporation and accused No. 2 was studying in the final year of B.E degree examination in the Sardar Patel Engineering College at Andheri and was appearing for the said examination in November 1975. Suggestions made to him that he has falsely implicated accused at the instance of Sadashiv, were denied by this witness. Therefore, if the evidence of this witness is read between the lines, it is quite clear that he had given different versions at the different stages and at the trial he tried to save the accused No. 4. However from his deposition it is quite obvious that an incident took place on 23rd October, 1975 wherein he was assaulted by the accused persons i.e. accused Nos. 1, 2 and 3 by sticks and iron bars. It is further clear from his deposition that when he was being assaulted, deceased Mohan came to his rescue and, therefore, he was assaulted by accused persons. Similarly Arun Patil came to his rescue and, therefore, he was also assaulted. The evidence of this witness gets substantial corroboration in the injuries found on his person by Dr. Mrs. Sangamnerkar. This evidence gets further corroboration from the first information report Exh. 13 In these circumstances in our opinion this part of his evidence could be safely accepted though it cannot be said that he is wholly a truthful witness.
15. Arun (P.W. 3) has also given details about the incident which took place on 22nd October, 1975. He also speaks about the two mandals i.e. Om Jaya Datta Mandal and Mandal Taluka Mitra Mandal. According to this witness also prosecution witnesses are the members of the Om Jaya Datta Mandal Whereas accused were members of the Mahad Taluka Mitra Mandal so far as the actual assault which took place on 23rd October, 1975 is concerned, this witness has also stated that at about 5.30 p.m this witness, Sunil, Prabhakar and Chandrakant were sitting together near the bus stop. At about 7.45 p.m. Mohan also came there, Satish also joined them. After chitchatting for sometime they went for walk towards building No. 89. They noticed a motor lorry parked on the rod in front of building No. 88. According to Arun while they were about to pass motor lorry the accused Nos. 1, 2, 3 and 4 came forward running from behind the motor lorry armed with sticks and iron bars. Accused No. 1 had a wooden stick in his hand whereas accused Nos. 2, 3 and 4 each has iron bars in their hands. Then all of them rushed towards them. Accused No. 1 gave a blow of stick on the buttock of Satish. Accused No. 2 gave blows of iron bar on the face, left arm and back of Satish. Accused No. 3 also gave blow of iron bar on the back of Satish. Then Prabhakar and Mohan went to the rescue of Satish. According to the witness accused Nos. 3 and 4 followed Mohan. Prabhakar ran away out of fear. When he went ahead accused Nos. 1 and 2 followed him and accused No. 1. gave one blow by his stick ion his face and accused No. 2 gave one blow of iron bar on his abdomen. Then he speaks about his going to the house of Sadashiv (P.W. 7) and coming to the spot with him, he also went to the hospital. His statement was also recorded by the police. He admitted in his cross-examination that they had not decided to go for a walk towards the building No. 89 but just casually want to that side. He also admitted that none from two persons who were with him told him that accused persons were sane hiding behind the motor lorry. Then he gave details as to how he, Satish, Mohan received injuries. In reply to the suggestion made to him, he has also admitted in his cross-examination that he had no occasion to talk to accused No. 2 till 22nd October, 1975. He also admitted that there was no fixed place or time for their going to walk. Then certain contradictions from his depositions were also brought on record. The evidence of this witness gets substantial corroboration in the evidence of Dr. Mrs. Sangamnerkar who speaks about the injuries found on his person. As many as 6 injuries though minor in nature were found on his person and one of them was C.L.W. 1/2'' x 1/4'' over left eye brow. There is also lenear swelling about 2'' in length over right abdominal wall. From the evidence of this witness, therefore, it is also clear that on 23rd October, 1975, when this witness, Satish, Mohan, Prabhakar had gone for a walk accused persons assaulted them. As a result of this assault by the accused persons Mohan received several injuries and ultimately died in the hospital. He himself and Satish (P.W. 2) had also received injuries in this assault.
16. Prabhakar (P.W. 4) also gave some what same story. After telling the Court about the incident which took place on 22nd October, 1975, this witness has also stated on oath that on 23rd October, 1975 he had gone for a walk with Satish, Arun and Mohan. According to him near about building No. 89 they were assaulted by the assured persons and at that time accused No. 1 had a stick and another had iron bar. However according to him he did not receive any injury because he ran away from the spot. It is no doubt true that in the cross-examination it was not possible for this witness to give details about the names of the members of the Mandal. However the story given by this witness is in conformity with the version given by Satish (P.W. 2) and Arun (P.W. 3). Therefore, in our opinion if the evidence of these 3 eye witnesses is read together with the medical evidence on record as well as the evidence of Sunil (P.W. 5) Chandrakant (P.W. 6) and Sadashiv (P.W. 7), then a finding could safely be recorded that on 22nd October, 1975 a minor incident took place wherein ultimately Sunil (P.W. 5) tendered an apology. However it is also clear from this evidence that accused persons were offended because of certain utterance. It is also clear from the evidence that on 23rd October, 1975 when they were going for a walk accused persons assaulted them with sticks or iron bars. Hence in our opinion the learned Additional Sessions Judge was right in accepting the testimony of these witnesses so far as the actual assault is concerned.
17. However it cannot be forgotten that Satish (P.W. 2) who was the first person to be assaulted, has admitted in his cross-examination that accused assaulted Mohan and Arun when they came to his rescue. From the evidence of these prosecution witnesses, therefore, it is quite clear that Satish (P.W. 2) was the main target and only because the deceased Mohan and Arun Patil went to his rescue they came to be assaulted by the accused persons. In this context that accused No. 1 was it is also pertinent to note the main person. From the evidence of Sadashiv (P.W. 7), it appears that he wanted to save accused Nos. 3 and 4 and only wanted to involve accused Nos. 1 and 2. According to Sadashiv (P.W. 7) Prabhakar (P.W. 4), and Arun Patil (P.W. 3) had come to his place immediately after the incident and only disclosed the names of accused Nos. 1 and 2. It has also come in the evidence of prosecution witnesses that they had no fixed place for going for evidence or prosecution witnesses that they held no fixed place for going for evening walk. The finding of the motor lorry is not referred to in the first information report. Therefore, if whole of this evidence is read between the lines, it does not appear to be true that any motor lorry was standing on the road and accused persons were hiding behind any such motor lorry as alleged by prosecution witnesses including Satish (P.W. 2). As stated by these prosecution witnesses it appears that in the evening in question they met causally and ultimately they were going for a walk towards the building No. 89. Therefore, it does not appear that the assault is a pre-planned one. It further appears from the evidence of the prosecution witnesses that accused wanted to assault Satish (P.W. 2) and the deceased Mohan came to be assaulted only because he went to the rescue of Satish. Therefore, it cannot be said that the common object of these accused persons was either to assault or murder Mohan, though it could be said that common object of the accused was to assault Satish. The prosecution witnesses Satish (P.W. 2), Arun (P. W. 3) and Prabhakar (P.W. 4) have stated in the clearest terms the these accused persons were armed with weapons like iron bars. They assaulted Mohan with the said iron bars. Though it is true that initially they had no intention to assault Mohan, ultimately Mohan received injuries at the hands of the accused by the iron bars only because he tried to intervene and rescue Satish. From the nature of the injuries found on the person of Mohan, it is quite obvious that the weapon used must have been heavy one. The assault on Mohan was neither preplanned nor intentional . Any particular part of the body was neither chosen nor any particular injury was intended by the accused persons. Therefore it is not possible to attribute to the accused that they intended to cause precise injuries which were ultimately found on the person of the deceased. In a melee when Mohan was trying to rescue and was in a moving position he received injuries on the various parts of his body. Hence it is not possible for us to come to a definite conclusion that the precise injuries which ultimately resulted in the death of Mohan were intended by the accused persons. However from the nature of the weapon used, and the injuries caused knowledge could be attributed to the accused that by their act they were likely to cause death or such bodily injuries which are caused death of Mohan. Hence in our opinion having regard to the facts and circumstances of this case, and the acquittal of accused No. 1 for the major offence, the learned Additional Sessions Judge has committed an error in convicting the present accused persons for the offence of murder under section 302 read with section 34 of the I.P.C.
18. This is more so when it is admitted by Satish (P.W. 2) himself that Mohan came to be assaulted when he came to rescue him. This clearly indicate that it was not the common intention of the accused to assault Mohan. He was assaulted only because he tried to intervene in the assault. It is no doubt true that a finding could be recorded that in a given case even though originally a particular common object was shared, different intention developed during the execution of the original plan, however in that case evidence in that behalf should be clear and cogent. It is well settled that suspension however strong cannot take place of proof to bring home the guilt of the accused. In these circumstances once a benefit of doubt is given to the main accused i.e. accused No. 1, in our opinion the other accused persons i.e. accused Nos. 2, 3 and 4 also cannot be convicted with aid of section 34 of the I.P.C. for the offence of murder of deceased Mohan.
19. So far as the convictions recorded under other sections are concerned obviously they could not be challenged seriously in view of the finding recorded by us. Hence the convictions and sentences recorded by the learned Additional Sessions Judge under section 324 of the I.P.C. either individually or with the aid of section 34 of the I.P.C. will have to be confirmed. In the result the appeal is partly allowed. Conviction of the accused Nos. 2, 3 and 4 i.e. Vijay Pundalik Sagwekar, Baburao Tukaram Shelar and Chandrakant Subhan Salvi for the offence punishable under section 302 read with section 34 of the I.P.C. is set aside and instead they are convicted for the offence punishable under section 304 Part II read with section 34 of the I.P.C. So far as the question of sentence is concerned we have heard the Counsel for both the sides. It has come in the evidence on record that accused No. 1 was the main offender, and it appears that other accused acted as per his desire or at his instigation. Accused No. 2 Vijay Pundalik Sagwekar was studying B.E and we are informed at the Bar that from the jail itself, he has passed the said examination in the year 1978. Thus the accused persons are young man and it appears that they have acted in an indiscreat manner at the intigation of somebody and not on their own. They are in jail right from the date of their arrest. Therefore in our opinion the ends of justice will be met if they are sentenced to undergo imprisonment for a period already undergone by them. In any case they are entitled to set off under section 428 of Code of Criminal Procedure. Therefore taking into consideration the said provision of the Code of Criminal Procedure and the period already undergone by them in the jail the ends of justice will be met if each of them is sentenced to R.I. for the offence under section 304 Part II read with section 34 of the I.P.C. for the period which they had already undergone. For the offence under section 324 of the I.P.C., they are sentenced to undergo R.I. for 3 years. They had already undergone that period. The learned Additional Sessions Judge has already directed that all the sentences are to run concurrently. In view of this accused Nos. 2, 3 and 4 Vijay Pundalik Sagwekar, Baburao Tukaram Shelar and Chandrakant Subhan Salvi are entitled to be set at liberty forthwith if not required in any other case as they are being sentenced to rigorous imprisonment for the period already undergone by them.