Bombay High Court
Pandurang Punappa Karpe And Others vs The State Of Maharashtra on 26 November, 1992
Equivalent citations: 1993CRILJ2302
JUDGMENT Daud, J.
1. This appeal takes exception to the conviction and sentence recorded against the appellants for the commission of offences punishable under sections 302, 307 r/w. 34 and 323 of the Indian Penal Code.
2. Appellants before us, were arraigned along with three others being the full brothers of the 1st appellant for the commission of offences allegedly committed by all of them in furtherance of a common object on 9-6-1989. Appellants Nos. 2 and 3 are the sons of appellant No. 1.
3. The prosecution case was that appellants and the acquitted-accused though Harijans of village Karoli, Taluka Kavathe-Mahankal, Dist. Sangli and living in the Harijan Vasti had been black-listed, if not virtually excommunicated, by their fellow Harijans. What exactly is the reason for the excommunication, has not been specified by the prosecution witnesses. According to the appellants and the co-accused the excommunication was motivated by jealousy on account of them being educated and fairly affluent, as against, the semi-literate and never-do-well condition of the other inhabitants of the Harijan Vasti. Deceased Akaram is the husband of P.W. 4 Muktabai, the father of P.W. 5 Kushaba and brother of P.W. 11 Nilappa. Akaram and Nilappa were living together with their wives and children. Namdeo who has not been examined, is a brother-in-law of Akaram. On 9-6-1989, the inmates of Akaram's residence came back after doing the day's work. Kushaba was sent to fetch pulses from the shop of one Pawar. On the way he had to pass the wada of Pawar. On the way he had to pass the wada of Pawar. While passing this wada, Kushaba heard the sounds of a musical instrument called Dholki being played unmelodiously. Kushaba went into the wada and entered the room in which a drama rehearsal was in progress. Certain persons were assembled in that room and they included appellant No. 2 Dadasaheb. It was him who was responsible for the unmelodious sounds which had attracted the attention of Kushaba. Kushaba gave expression to his view and that angered Dadasaheb. Heated words ensued and very soon the two were at each other's throats. Those present, including P.W. 10 Arvind, intervened and set apart the disputants. The occupant of the room, Eknath Jagtap, came at this stage and drove away the whole crowd from his room, Kushaba went to the shop of Pawar, purchased the pulses he had been asked to buy and delivered the same to his mother. The mother, Muktabai was informed of what had taken place. Kushaba then left for a place which he describes as Samaj Mandir or Takiya. For sometime he stayed at the Takiya, conversing with the boys assembled there. While returning home he sighted the appellants and the acquitted-accused in the courtyard of Sopan Karpe. Sometime thereafter came to him, the voice of his mother screaming in pain. Kushaba went running. The sight that met his eyes was that of Akaram lying on the ground and seated by his side the wounded, Muktabai. Appellants and the acquitted accused rushed at Kushaba as soon as they sighted him. The explanation for the shouts that had attracted Kushaba, comes from the testimony of Muktabai. While she was at home, the appellants and the acquitted-accused came in a body and stood outside her home. They were uttering filthy abuses. She protested against the same and Akaram followed suit. Angered at the Akaram's intervention, the appellants and the acquitted accused inflicted a severe beating on his person. Appellants Nos. 1 and 3 used axes while the others used sticks. Also beaten with these instruments was Kushaba. Muktabai sustained two injuries when she came to the rescue of her fallen husband. The incident over, the culprits fled. Nilappa fetched Namdeo. The bother-in-law of Akaram. He also brought the Police Patil and Sarpanch on the scene. Akaram had passed away and therefore, his corpse was left on the spot. Muktabai and Kushaba were removed in a tempo to Kavathe-Mahankal. Nilappa was confused, horror-stricken and under a great deal of tension. What exactly he said when giving the report, was neither complete nor accurate. The police registered an offence and started investigating. In the course of the investigation, the scene of offence panchanama was drawn up, which Panchanama, is at Exh. 12. The wounded persons were sent to the Rural Hospital at Kavathe-Mahankal where they were examined by Dr. Khot. Certificates issued by Dr. Khot are at Exhs. 18 and 41. Akaram's corpse was subjected to a post-mortem examination by Dr. Khot and notes relating thereto are at Exh. 42. Akaram had sustained two incised wounds, one somewhere on the chest, and, the other on the head. The first injury was a serious one and sufficient in the ordinary course of nature to lead to death. Kushaba had three incised wounds - two over his back and one over his shoulder. Muktabai had two contused lacerated wounds on the face. Appellants were arrested and the investigating officers started interrogating the appellants and their co-accused. Statements given by accused Nos. 3 and 4 are set out in Exh. 23 and the stick and axe recovered in pursuance of the said statements were attached under Exh. 2. Appellant No. 1 also agreed to produce an axe concealed by him in a certain portion of the home of the accused No. 5. His statement to that effect was recorded at Exh. 26. Accused No. 5's house was visited and from there brought out by appellant No. 1, was an axe which was attached under Exh. 27. Muktabai was discharged immediately after treatment, whereas Kushaba underwent hospitalisation for about 8 days. The investigation completed, a charge-sheet was put up against the appellants and the three brothers of appellant No. 1.
4. Appellants and their co-accused, all denied the truthfulness of the narration given by the prosecution witnesses. Appellant No. 1's version was that he and his son/appellant No. 2 were going for bhajans in the evening. Both of them had to pass the road facing the house of Akaram. When they came to that spot, they found Akaram and Kushaba drunk and abusing each other. Kushaba struck appellant No. 3 with an axe and also rushed at appellant No. 1. On this, appellant No. 1 fled and taking a bus went to Kavathe-Mahankal where he contacted the P.S.O. at the Police Station. The said P.S.O. kept him waiting at the Police Station and did not reduce to writing the report given by him. What happened after his departure to the Police Station was not known to him. Appellant No. 2 took the same stand as his father and added that Kushaba struck him with an axe on the head. This blow felled him down after which he lost consciousness. When he next woke up, he found himself at the Rural Hospital at Kavathe-Mahankal. Appellant No. 3 says that he was at home taking his meals when the appellants Nos. 1 and 2 left home to take part in the bhajan recitals. From the direction of the house of Kushaba came shrieks of his father. He therefore went to the spot and found Kushaba and Akaram, each handling an axe. Appellant No. 2 was lying on the ground with an injury. Appellant No. 3 was about to pick up the wounded appellant No. 2 when he was struck on the head with an axe by Akaram. At this stage a number of persons had assembled. Appellant No. 1 fled from the spot and appellant No. 3 succeeded in bringing appellant No. 2 to their home. Two or three hours later, appellant No. 1 came in a Police jeep and he as also appellant No. 2 were taken to the Kavathe-Mhankal Rural Hospital in the said jeep. All the three appellants gave out that they had been falsely implicated because of factional enmity.
5. A large number of witnesses were examined by the prosecution to substantiate the charge levelled against appellants and the three brothers of accused No. 1. These included Nilappa, Muktabai, Kushaba, Arvind and Dr. Khot. The learned trial Judge found that there was evidence connecting appellants with the commission of offences punishable under section 302 and 307 r/w 34, I.P.C. Appellant No. 3 was additionally convicted under section 323, I.P.C. Various terms of imprisonment and fine were imposed, and, in default of the payment of fine, the defaulter was to undergo additional R.I. for an additional term. The three brothers of appellant No. 1 were acquitted.
6. Mr. Pradhan, representing appellants, raises a two-fold submission. The first contention is that the charge framed by the trial Judge misled his clients in the conduct of their defence. They had been charged for various offences on the ground of being constructively liable for the said offences and not as the actual perpetrators thereof. As a result of the error in the framing of the charge, the conviction and sentence became illegal, and, for that reason alone, were liable to be quashed. Alternatively, the witnesses examined on the subject were thoroughly unreliable. The accounts given by them at the trial differed from what they had said at the stage of investigation and no two witnesses were consistent in the versions given by them at the trial. The discovery evidence was a farce and completely unreliable. In any case it could not be said that all the appellants were guilty of the offence of murder or a murderous assault. The prosecution had not explained the injuries on the person of appellants Nos. 2 and 3. These injuries had been satisfactorily proved and in fact were admitted by no less a person than the Investigating Officer. In fact, Muktabai herself admitted that a counter case for voluntarily causing hurt by means of deadly weapons on the persons of appellants Nos. 2 and 3. Appellants Nos. 2 an 33 were therefore entitled to an acquittal on the ground that if guilty of having taken to violence, they had done so in the exercise of the right of private defence. As to appellant No. 1, in the event of it being established that he had resorted to violence, the same was for the purpose of defending the person of his sons. In any event, whatever was done by appellant No. 1, was so done, on the spur of the moment, without premeditation and in a sudden quarrel. Those contentions are disputed by the learned Public Prosecutor who says that the verdict of the Additional Sessions Judge should be affirmed in its entirety.
7. To take up the first point of Mr. Pradhan, the charges ascribed to the appellants and full brothers of appellant No. 1 were the commission of offence punishable under sections 302, 307 and 326 all read with Section 149 of the I.P.C. as also for offences of rioting punishable under sections 147 and 148 of the I.P.C. Mr. Pradhan says that there was no charge attributing to any of the appellants the commission of the substantive offence of murder, murderous assault, or causing of grievous hurt with deadly weapons. Similarly none of the appellants was charged with the commission of offences punishable under sections 302, 307 and 326 r/w. 34 of the I.P.C. Appellants who had been charged for murder and murderous assault and the causing of grievous hurt by deadly weapons with the aid of Section 149 of the I.P.C., understood themselves to be facing a trial for the consequences of an offence or offences committed by someone else from amongst members of the unlawful assembly, albeit, acting in furtherance of a common object allegedly shared by all the members of the unlawful assembly. They were not given to understand that they themselves were accused of the commission of the offence of murder etc. whether singly, or along with others, in furtherance of a common intention. The conviction recorded against them was not for the commission of the substantive offence read with Section 149 of the I.P.C. This being the position the said conviction and sentence were liable to be quashed. In support of this submission, learned Counsel relies upon three decisions of the apex Court, being Nanak Chand v. State of Punjab, ; Suraj Pal v. State of Uttar Pradesh, ; and Willie (William) Slaney v. State of Madhya Pradesh, . The ratio of Nanak Chand and Suraj Pal is to the effect that a person charged of an offence with the aid of Section 149, I.P.C. will not understand himself as being charged with the substantive offence and cannot therefore be convicted for the sub-stantive offence. To quote from Nank Chand (at page 727) :-
"By framing a charge under section 302 read with Section 149, I.P.C. against the appellant, the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and to convict him for murder and sentence him under section 302, I.P.C. was to convict him of an offence with which he had not been charged. In defending himself, the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution case. It was urged that if a specific charge for murder had been framed against the appellant, he would have questioned the doctor more closely about the incised injuries on the head of the deceased, as well as the prosecution witnesses. It is difficult to hold in the circumstances of the present case that the appellant was not prejudiced by the non-framing of a charge under section 302, I.P.C."
In Suraj Pal's case a number of accused were committed to the Sessions by the Magistrate by framing charges under sections 147, 323 r/w. 149, 307/149 and 302/149, I.P.C. There were no direct and individual charges against the accused for the specific offences under sections 307 and 302, I.P.C. The Sessions Judge found all the accused guilty of the offences as charged and sentenced them. In appeal the High Court acquitted some of them, and, as regards one of the accused his conviction was maintained, he having a pistol in his hand. The High Court while setting aside the conviction and sentence of all the accused under sections 307, 149 and 309, convicted and sentenced the pistol-handler under section 307 for transportation for life and death under Section 302. The convicted person challenged the High Court verdict before the Supreme Court and here it was held :-
"There were not direct and individual charges against the accused for the specific offences under section 307 and 302, Penal Code. The absence of specific charges against the accused under sections 307 and 302, was a very serious lacuna in the proceedings and had materially prejudiced the accused. Hence the conviction and sentence under Sections 307 and 302 could not be maintained against the accused."
When Willie Slaney's case came up before the Supreme Court, it was apprehended that there was a conflict of views between Nanak Chand and Suraj Pal (supra). The matter was referred to a bench of five Judges in order to determine whether there was a conflict of view, and if so, to resolve the same. The five Judges differed, the majority speaking through Chandrasekhara Aiyar, J. saying :-
"Sections 34, 114 and 149 of the Indian Penal Code provided for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and 'the charge is a rolled - up one involving direct liability and constructive liability' without specifying who are directly liable and who are sought to be made constructively liable. In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this king, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant. The gravity of the defect will have to be considered to determine if it falls within one class or the other. Is it a mere unimportant mistake in procedure or is it substantial and vital ? The answer will depend largely on the facts and circumstances of each case. If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lesser degree, it will be an irregularity and prejudice by way of failure of justice will have to be established."
This would show that a mere defect in the framing of the charge, in fact, non-framing of a charge, is not by itself an illegality which vitiates a trial. What has to be established is prejudice to the person prosecuted consequent to the non-framing of a charge or a defect in the charge framed. There are no hard and fast rules to determine what constitutes a prejudice. It would all depend upon the circumstances. Mr. Pradhan draws our attention to para 88 of Chandrasekhara Aiyar, J.'s opinion which is to the following effect :-
"This judgment should not be understood by the subordinate courts as sanctioning a deliberate disobedience to the mandatory requirements of the Code, or as giving any licence to proceed with trials without an appropriate charge. The omission to frame a charge is a grave defect and should be vigilantly guarded against. In some cases, it may be so serious that by itself it would vitiate a trial and render it illegal, prejudice to the accused being taken for granted."
We are in respectful agreement with the admonition of Chandrasekhara Aiyar, J. Even if we subscribe to the argument of Mr. Pradhan that the charge is defective, in that, it does not give notice to the accused in specific terms of being charged with the commission of specific offences or of their having committed these offences in furtherance of a common intention, we cannot agree that there has been any prejudice caused to the appellants. Right from the inception, the appellants knew the nature of the accusation they had to face. First and foremost they had been supplied with the charge-sheet and all papers accompanying the charge-sheet. These included the first information report and the statements of witnesses recorded during investigation. It is not Mr. Pradhan's case that these papers indicated no more than fastening upon the appellants a constructive liability for the offences of murder, murderous assault and voluntarily causing of grievous hurt by means of deadly weapons. These papers, in terms indicated, the commission of specific offences or at least specific acts by the three appellants, not to speak of the three full brothers of appellant No. 1. Apart from these papers, of which good use has been made at the trial by the defence Counsel, were the depositions of witnesses like Muktabai, Kushaba, Arvind, Nilappa and others. Whatever be the discrepancies brought out in the depositions of these witnesses, these certainly cannot be said to have misled the appellant in comprehending the accusations levelled against them. Mr. Pradhan says that if the trial Court had made it explicit that the appellants faced specific charge, there would have been an effective cross-examination of Dr. Khot. It is not correct to say that Dr. Khot has not been effectively cross-examined. The witness has testified to two incised wounds found in the corpse of the deceased. In cross-examination, it was brought out that one of these injuries was fatal. The question leading to that reply appears to have become necessary because the evidence of the only eye-witness at the scene, showed that of the two incised wounds inflicted on the person of Akaram, one was struck by appellant No. 1 and the other allegedly by appellant No. 3. It was the first incised wound struck by appellant No. 1, which proved fatal. Therefore, the cross-examining Counsel by eliciting the answer aforementioned, brought out the exoneration of appellant No. 3 vis-a-vis the murderous assault by appellant No. 1. Effective cross-examination does not necessarily numerousness of questions put in cross-examination. Having considered Mr. Pradhan's argument in detail, we do not agree that the appellants were prejudiced by the absence of a specific charge in relation to the offences of murder, murderous assault and voluntarily causing of grievous hurt by means of a deadly weapon.
8. Turning to the second point, we must say that the evidence is an unholy mess. Muktabai is the only eye-witness properly speaking. But apart from that, we will have to consider the background event which took place at Pawar Wada. Kushaba is supported in relation to this event by P.W. 10 Arvind. Amongst those assembled at the Pawar Wada were appellant No. 2 and Arvind. Appellant No. 2 was playing a Dholki. Kushaba came to the room where the instrument was being played, and gave expression to this annoyance at the unmusical sounds emanating from the room. This was obviously directed at appellant No. 2 and he naturally took offence at the officiousness, if not impertinence, of Kushaba. Heated words were exchanged and the two were at each other's throats. A fight broke out and all of them were driven away from the room by Eknath Jagtap. In cross-examination, Arvind frankly admits that Kushaba was the first to take to violence as also abuses. Arvind goes on to say that appellant No. 2 retaliated in kind. A contradiction brought out in his deposition, is, about not informing the Police during the investigation that appellant No. 2 had also caught hold of the collar of Kushaba's shirt. But in the very nature of things, appellant No. 2 could not have meekly suffered the assault on his person by Kushaba. To be jeered at by Kushaba was bad enough, and, it is just not possible to conceive of appellant No. 2 not retaliating in kind when man-handled by Kushaba. Be that as it may, the incident must have left a bad taste in the mouth of appellant No. 2.
9. The second part of the occurrence is spoken of by Kushaba, Muktabai and Nilappa. The last named person's presence is testified to by himself as also Muktabai and Kushaba. Had Nilappa really been present, he would have effectively intervened in the beating inflicted on the persons of his brother, nephew and sister-in-law. In that case, he also would have been beaten up. Nothing of that nature occurred and the fact that he had made up the whole story comes out in F.I.R. Exh. 461 lodged at the Police Station. Therein, the assault is ascribed only to appellants, there being no reference to other persons, much less the actual acts done by the full brothers of appellant No. 1. Nilappa, even before his cross-examination, was aware that Exh. 46 as it stood was likely to be a milestone around his neck. Therefore, in examination-in-chief itself, he started inventing excuses when reporting of his being confused, horror-stricken, under a tension and what not. Cross-examined, the witness went on to feign, lack of remembrance, or out-right denial of the correctness, rather completeness, of the recitals appearing in Exh. 46. Nilappa, with Namdeo carried the injured persons to Kavathe-Mahankal. On the way the party travelling by the tempo had enough time to drag in as many as persons as they could. This is not a mere surmise for even Muktabai admits that there is active animosity between the entire Harijan villagers on one side, and, the appellants and the full brothers of appellant No. 1 on the other. The lady has been candid enough to admit that the appellants and their co-accused have been excommunicated by the residents of Harijan Vasti. She does not know the reason for the excommunication, but denies that the outcasting is motivated by animus occasioned by the educational advance of the appellants. Be that as it may, the admission given by Muktabai is sufficient to show that the appellants were the target of an active spite harboured against them. Added to this is the conduct of Kushaba in interfering with a matter which did not concern him at all, and, when rebuked, becoming more obnoxious in words as also deed. The death of Akaram and the injuries inflicted on Kushaba and Muktabai, must have added to the sense of grievance that the bereaved family entertained. They had to get even with the appellants and other co-accused and the best way of so doing was to implicate all of them. Even so - so we are asked to believe - Nilappa forget material facts when he gave his first information report. In reality, it was the truth that came through his lips. Kushaba when questioned during investigation and then at a time surrounded by his mother and uncle, again came out with the frank truth, viz. that the appellants alone were the assailants-appellant No. 1 using an axe and appellants Nos. 2 and 3 using only sticks. When confronted with these contradictions set out in Exh. 33, Kushaba found no difficulty in refuting the same. But the Officer who recorded the statement of Kushaba has been examined and he has proved the said contradictions. Muktabai has not been wholly truthful and we shall come to the infirmities in her testimony at a later stage. What has to be emphasised at this stage is that none of the witnesses can be said to be so truthful as to inspire full confidence in the absence of corroborative material. The part played by the acquitted accused has to be totally excluded. The rest of Muktabai's testimony comes to this : Appellants had come in front of her house. Appellants Nos. 1 and 3 were carrying axes and appellant No. 2 had a stick. Filthy abuses were directed against the lady by appellant No. 2 Muktabai pointed out that the abuses should not have involved her name. Far from pacifying appellant No. 2, this only made him more abusive. Akaram came out of the house to advise the appellants to move to their own house and utter abuses which they were doing, instead of standing in front of his house and making a scene. This remark of Akaram brought upon him the wrath of the appellants. Appellant No. 2 struck him on the head with a stick and this blow felled Akaram to the ground. As Akaram tried to get up, appellant No. 1 rushed at him and struck him on the chest with an axe. Appellant No. 3 followed and struck Akaram on the back with an axe. If we test this account with the post-mortem notes, we will see a great contradiction. Akaram had no contusions, abrasions, contused lacerated wounds or even a weal mark on his person. The only two injuries found on his body were incised wounds on the face and head. From the statements of Nilappa and Kushaba recorded in the investigation, we know that appellant No. 3 was not carrying an axe. He therefore could not have struck Akaram with an axe. There is no injury on the person of Akaram answering to any stick blows inflicted on his body. The omission of such an injury falsifies Muktabai when she tries to implicate appellant No. 2. Muktabai says that she fell on her husband's person with a view to save him and at that time she was struck twice on the forehead with an axe by appellant No. 3. But there are no incised injuries on the person of Muktabai. The learned Public Prosecutor explains the absence of incised injury on Muktabai by relying upon the trial Court's opinion that the axe with its blunt side, must have been used by appellant No. 3 to inflict these injuries. But it is no one's case that an axe was used as a club by appellant No. 3. The result is a mystery as to the author of either of the injuries on the person of Muktabai. In relation to Kushaba, Muktabai says that he was beaten up by all the accused. Damage to the person of Kushaba would have been much more than the few incised injuries found on him. Obviously, Muktabai is telling a lie when she says that all those prosecuted, has beaten Kushaba. The account given by Kushaba is wholly unbelievable. He says that he was beaten up by all the accused persons i.e. the number being six. Appellant No. 3 struck him on the back with an axe while the others struck him with sticks. Kushaba has been contradicted with Exh. 33 which is a clear admission by the witness that the instrument used for beating him by appellants Nos. 2 and 3, were sticks. An axe was used on his person, but it was by appellant No. 1. At the trial Kushaba does not say that appellant No. 1 was armed with an axe. The net result is that we do not know author of the injuries found on the person of Kushaba. Nilappa who claims to have been present when the incident took place would have commanded greater credence, but for the same excuses given by him to get over the story appearing in Exh. 46. But even if that is kept aside, it is not possible to believe, as he would have us believe, that all the six persons were striking Kushaba. Admittedly barring appellants Nos. 1 and 3, the remaining four assailants had sticks. No stick blows were detected on the body of Kushaba. Nilappa's assertion that appellant No. 3 had struck Kushaba with an axe is falsified by the version of Kushaba set out in Exh. 33. One part of the testimony shows that he could not have seen the entire occurrence. This is when he says that his attention was drawn to the spot upon hearing the noise caused by the quarrel. When he came running, Akaram was already lying on the ground and Muktabai had flung herself on her inert husband's person with a view to protect him. If so he had come very late and he could not have seen much of what he testifies to. Kushaba, with a view to sound convincing, says that he lost consciousness at the spot and that when he next regained consciousness, he found himself at the Civil Hospital at Sangli. In this he is not supported either by Nilappa, Muktabai or Dr. Khot.
10. The next piece of evidence relied upon by the prosecution is the usual recoveries pursuant to discovery statements. Exh. 23 purports to be the joint memorandum of a statement made by appellants Nos. 2 and 3. Appellant No. 3 is said to have spoken of the concealment of an axe and appellant No. 2 that of a stick. The recovery panchanama at Exh. 24 is not fully in conformity with the statements. In any case, appellant No. 3 had not used an axe and the recovery of an axe pursuant to the statement given by him will not lead to any consequence. Further the statement was recorded after 3 days of the occurrence. Next, is the recovery of a stick. One does not understand why appellant No. 2 would consider it necessary to conceal a stick used by him in the crime at the house of his uncle, the 5th accused. Appellant No. 1 is sought to be incriminated by Exh. 26 which speaks of his concealing an axe in a room of the residence of his brother, accused No. 5. Why accused No. 5 would have allowed his house to be turned into an arsenal, passes comprehension. The Public Prosecutor says that blood was found on the axes and stick and therefore, an adverse inference should be drawn against the appellants. What this argument overlooks, is, that the weapons were recovered from a place other than the homes of the appellants. Next the blood grouping is not so clear as to draw a conclusion against the appellants. In any case, where the direct evidence is as discrepant and conflicting as found in the present case, it will be dangerous to go by the so-called discoveries.
11. To sum up, all that can be said to have been clearly established by the prosecution, is, the infliction of a fatal wound on Akaram by appellant No. 1 Mr. Pradhan argues that appellant No. 1 should be given the benefit of the right of private defence inasmuch as the injuries were inflicted on the persons of appellants Nos. 2 and 3 and also because the prosecution has not explained how these injuries came to be on their persons. We cannot agree with this submission. The injuries on the persons of the appellants Nos. 2 and 3 were trifling ones. They could have very well been caused by Akaram, Kushaba and Muktabai while defending themselves or one another against the attack launched by appellant No. 1. An incident which leaves behind one dead and two persons wounded cannot be conceived of as an exercise in the right of self-defence, where those allegedly attacked have sustained nothing more serious than minor incised injuries on their persons. Lastly, Counsel argues that the killing of Akaram would amount to culpable homicide not amounting to murder punishable under Parts I and II of Section 304, I.P.C. Again, it is not possible for us to agree with this contention. There was an interval of 20 to 30 minutes between the first clash in which the appellant No. 2 and Kushaba were involved and the second one in which Akaram died and Muktabai and Kushaba sustained fairly serious injuries. The second incident was not a continuation of the first one. The elaborate explanation given by the appellants when questioned under Section 313, Cr.P.C., is, on the face of it, unbelievable. The killing of Akaram etc. was not the result of a sudden quarrel. On the contrary it was a calculated act to take revenge upon Kushaba for having insulted appellant No. 2 at the Pawar Wada confrontation, where the killing is motivated by a desire to be avenged, the same amounts to murder and not second-degree homicide. To sum up, the appeal will have to be partly allowed. The conviction and sentence recorded against appellant No. 1 is altered and limited to the offence punishable under section 302, I.P.C. For the other offences found not established against him, we quash the trial Court's conviction and sentence. Fine, if paid by appellant No. 1 on the said count, be refunded unto him. Appellant No. 1 is acquitted of the offence punishable under section 307 r/w. 34, I.P.C.
12. Appellants Nos. 2 and 3 are acquitted of all the offences for which they have been convicted and sentenced by the trial Court. They are acquitted of the offence punishable under sections 302 and 307 r/w. 34, I.P.C. appellant No. 3, being additionally acquitted, of the offence punishable under section 323, I.P.C. Fine, if paid by appellants Nos. 2 and 3, be refunded unto them.
13. Appellant No. 2 be released forthwith, unless required in connection with some other case. Bail bonds furnished, by, and on behalf of appellant No. 3, to stand cancelled.
14. Order accordingly.