Bombay High Court
Dadasaheb Patalu Misal And Others vs State Of Maharashtra on 20 January, 1987
JUDGMENT Khatri, J.
1. 29 accused were put on trial before the learned III Additional Sessions Judge, Solapur, (Shri M. M. Tule) on charges under Sections 147, 148 and 302/149, 307/149, 324/149 and 326/149, I.P.C. for double murder and voluntarily causing grievous and simple hurts with dangerous weapons to 5 persons. The learned Judge convicted 19 (hereafter collectively called 'convicts') under sections 148, 302/149, 307/149 and 324/149, I.P.C. and acquitted the rest outright. On the count of murder, the learned Judge sentenced the first three accused to life imprisonment. Curiously enough he has sentenced the rest of the convicts on this count to a term of 2 years' R.I. only and a fine of Rs. 1,000/- each. On the minor charges, the learned Judge has sentenced each of the first three accused to (i) 3 years' R.I. and fine of Rs. 2000/- under section 307/149 for attempted murder of Sheshappa P.W. 15, (ii) three separate terms of 6 months' R.I. and fine of Rs. 500/- under Section 324/149 for voluntary causing simple hurts to Complainant Kashinath P.W. 8, Murlidhar P.W. 14 and Jalindar P.W. 17 and (iii) 6 months' R.I. and fine of Rs. 500/- under S. 148, I.P.C. To the rest of the 16 convicts were meted out corresponding sentences of (i) 1 year's R.I. and fine of Rs. 2000/-; (ii) 3 separate terms of 3 months' R.I. and fine of Rs. 250/- and (iii) 6 months' R.I. and fine of Rs. 500/-, respectively. All the substantive sentences are concurrent. The convicts have filed Criminal Appeal No. 496 of 1982, challenging their conviction. The State has filed Criminal Appeal No. 601 of 1982 for setting aside the acquittal of the 10 accused concerned, and also Criminal Appeal No. 588 of 1982 for enhancement of the aforesaid sentences for murder to death. While admitting the convicts' appeal, Rege and Jamdar, JJ. have suo motu issued notices to all the convicts for enhancement of their sentences under sections 307/149 and 324/149 and additionally to the 16 convicts who were awarded 2 years' R.I. only under S. 302/149. These notices are registered as Criminal Revision Application No. 517 of 1982. The Complainant has also preferred Criminal Revision Application No. 321 of 1982 against the acquittal of 10 and also for enhancement of the sentences. This judgment disposes of all these matters.
2. The incident in question took place at Village Panchegaon-Khurd, Taluka Sangola, District Solapur on the morning of 30th July 1980 around 7.30. Almost all the 29 accused are related to one another. So also the victims of assault and prosecution witnesses. The details of these relationships are given by the learned Judge in para 2 of his judgment. To reproduce the main items, Complainant Kashinath P.W. 8, Jalindar P.W. 17 and Ganpati-one of the two victims of murder are brothers. The second victim of murder Vithoba was natural brother of Hari P.W. 11. There are four more groups of brothers from amongst the accused : (1) Accused No. 1 Dadasaheb and No. 16 Mahadeo; (2) Accused No. 5 Tanaji, No. 6 Shahaji and No. 18 Nivrutti; (3) Accused No. 11 Mahadeo, No. 23 Kakasaheb and No. 24 Ramchandra; and (4) Accused No. 2 Pandurang, No. 12 Abasaheb, No. 13 Bapusaheb and No. 26 Appasaheb, all being sons of accused No. 28 Bhimrao Krishna Bhagat. There is a small uninhabited open site (hereafter referred to as "Padik"), bearing Gram Panchayat No. 105A. The prosecution case is that this Padik along with Babhul trees standing thereon belonged to and was in possession of Sheshappa Vithoba Misal P.W. 15 and his associates. Here it may be clarified that this Sheshappa who is the Sarpanch of the Village, is not the son of the deceased Vithoba. Admittedly some of the accused persons, including accused Nos. 1, 3, 5 and 6 cut branches of these Babhul trees around 18th July, 1980. It is also no longer in dispute that a day before the incident, that is on the evening of 29th July, 1980, the complainant and some of his associates removed this cut wood from this Padik to another open site (hereafter 'the scene of offence') which is situate near the house of one Sida Pandurang. At that time, accused No. 6 had warned the Complainant not to remove the branches from the Padik. But this protest was ignored by the Complainant's party.
3. The prosecution case is that the 29 accused and three more Dattu, since deceased, and Bhausaheb Sidram and Appasaheb Sidram, both since absconding formed themselves into an unlawful assembly with the common object of forcibly removing the wood from the scene of offence, by committing murderous assault, if necessary, on the members of the Complainant's party. The culprits armed themselves with deadly weapons such as axes, sticks, spears, iron bars, a whip etc. and marched to the scene of offence on the morning of 30th July 1980. They started removing the wood. The complainant, his brothers and their other associates came to know of this move and they also reached the site. When the accused persons were asked by the Complainant and his associates not to take away the branches, accused No. 1 is said to have suddenly inflicted an axe blow on the head of Ganpati. Ganpati immediately fell down on the ground. Thereafter accused Nos. 1, 3, 5 and 10 are said to have inflicted further blows on his head, face and neck. While deceased Vithoba was going towards Ganpati, accused No. 2 inflicted an axe blow on the head of Vithoba, who instantly slumped down. The prosecution alleged that the accused persons continued their murderous assault on the two deceased even after they had fallen down. The complainant as well as his associates Sarjerao P.W. 12, Murlidhar P.W. 14, Sheshappa P.W. 15, and Jalindar P.W. 17 were also assaulted by the culprits in the course of the incident. The details of the assault will be referred to later on as and when necessary. Ganpati and Vithoba who were fatally wounded with axes, breathed their last on the spot itself. Here it may be mentioned that accused Nos. 3 to 7 five in all have also received injuries during the said incident.
4. The complainant accompanied by his other four injured associates took a bus for Sangola and filed his FIR there at the Police Station around 11-30 a.m. During the course of the investigation, the usual steps of holding inquest, panchanama of the scene of offence, seizure of blood-stained clothes etc. were also taken. The two dead bodies were also forwarded to the Medical Officer, Sangola for autopsy. The injured persons on both sides were also sent to the Medical Officer for examination and treatment. The Complainant and his four associates were examined by Dr. Suryawanshi P.W. 19, Medical Officer, Sangola on 30th July, 1980 itself. At the moment we will not describe their injuries in detail. We would, however, like to mention that Sheshappa, Murlidhar, Jalindar, Sarjerao and the Complainant Kashinath had on their persons, 17, 6, 8, 2 and 7 injuries respectively. Sheshappa had sustained as many as 4 fractures of the hard pallet, left maxilla, Zygomatic frontal suture and temporoparietal region. Murlidhar had also sustained a fracture of right frontal bone. As against this, the injuries sustained by Accused Nos. 3 to 7 were comparatively far simpler. Accused No. 3 had sustained just one contusion, accused No. 6 one contusion and one contused lacerated wound, and accused No. 7 one contusion, one abrasion and tenderness. Accused No. 4 had five injuries and accused No. 5 four. Of all these, only one sustained by accused No. 4 was grievous, being fracture of ulna. All the rest were innocuous. Of the injured persons, Sheshappa, Murlidhar, Complainant and Accused No. 4 were referred to the Civil Hospital, Solapur for further treatment. There they were looked after by Dr. Quazi P.W. 18.
5. Dr. Suryawanshi held autopsy over the two dead bodies on the morning of 31st July, 1980. The body of Ganpati had as many as 9 ante mortem external wounds as follows :
1. Incised wound over the neck anterior, transverse in nature 6" x 5" deep to spinal cord, structures were involved in the wound. Trachea, oesophagus, large vessels, spinal cord cervical vertebra. This injury was at the level of just below the thyroid cartilage;
2. Incised wound over the scalp left parietal area, 2" x 1/4" scalp deep;
3. Incised wound just below the lower lip, deep to bone with the fracture of mandible, 1" x 1/4";
4. Incised wound over the vault 2" x 1/4";
5. Incised wound over chest on right side at the level of 2nd intercostal space 3" x 1/2", it was deep to lung right side;
6. Incised wound over the left side of cheek; 1" x 1/4" it was bone deep;
7. Fracture of left maxilla;
8. Contusion over left shoulder 2" x 1";
9. Incised wound on right lung upper lobe 2" x 1".
The internal examination disclosed fracture of the base of the skull and severe damage to the right pleura and corresponding part of the lung. Larynx, Trachea and large vessels were found cut. This damage was obviously caused by external injury No. 1 supra which was an incised wound of 6" x 5" deep to the spinal cord. Haemmorrhagic and Neurogenic shock were the eventual cause of death.
6. The body of Vithoba was found to have the following three ante mortem external injuries :
1. Incised wound over neck on right side below the right ear, oblique in nature extending from angle of mandible on right side to the nape of neck, crossing middle line of neck posterior. The wound was deep to spinal cords at C-5 level. Cutting of muscle in neck of right side and large blood vessels with fracture of cervical vertebra. Nos. C-4, C-5, C-6 cutting of spinal cords obliquely at C-5 level.
2. C.L.W. vault 2" x 1" scalp deep.
3. Incised wound right ear at the trages 1" x 1/4".
On internal examination large vessels of the neck on the right side were found cut. Again the cause of death in the opinion of the doctor was heammoragic and Neurogenic shock due to the injury on the neck.
7. During the course of the investigation certain incriminating weapons were recovered by the Police at the instance of different accused. One axe each was recovered at the instance of accused Nos. 1, 2 and 3. Sticks were recovered at the instance of accused Nos. 5, 10, 13, 16, 17, 20 and 21. A whip (referred to in the evidence as 'hunter') and iron bar were recovered at the instance of accused Nos. 29 and 6 respectively. After the investigation was over the 29 accused were sent up for trial under sections 147, 148, 302/149, 307/149 (attempted murder of Sheshappa), 326/149 and 324/149, I.P.C.
8. All the 29 accused pleaded not guilty and claimed trial. Accused Nos. 9, 10, 12, 14, 15, 18, 19, 21, 22 and 25 to 28 (a tally of 13) pleaded alibi. According to them they had nothing to do whatever with the incident and are absolutely innocent. The defence of the rest of the 16 accused is indicated in the detailed examination of accused No. 1 by the lower Court under S. 313, Cr.P.C. and his written statement Exh. 180. We shall refer to this defence a little later. First we must note that the learned Judge has followed a highly unsatisfactory mode of recording statements of the accused persons. He recorded the statements of the accused Nos. 1 and 9 in full details. Thereafter in the case of the 12 accused who had pleaded alibi along with accused No. 9, the learned Judge no doubt did put the entire plethora of 118 questions framed by him to each of them. However while purporting to record their answers, he made a short shrift of the whole solemn affair by recording a monolithic answer "same as accused No. 9" to each and every question. For the rest of the 16 accused persons, he followed the same pattern. He recorded the statements of Accused No. 1 verbatim in full and for the remaining 15, the answer recorded is "the same as accused No. 1". It is disturbing to note that the learned Judge finished the recording of statements of as many as 29 accused (118 questions for each) in just one day. We understand his hurry for quick disposals, but taking recourse to such tactics may in some cases result in gross unpardonable miscarriage of justice - which luckily has not taken place in the instant case. This serious flaw attracted the notice of our learned brothers Masodkar and Kolse-Patil, JJ. when these matters came up before them for hearing on 2nd April 1986. The learned Judges passed a speaking order on that day itself permitting the Advocates of the accused persons to file their fresh statements. About 9 months have since passed by. The statements of 27 accused (excluding Accused Nos. 1 and 9) have since been filed in the Court. When the matters came up before us on 5th January 1987 for final hearing, the learned Defence Counsel brought to our notice that these statements were recorded not by any Advocate, but by one Shivaji Bhimrao Bhagat who is the real brother of Accused No. 2. This Shivaji Bhagat is a graduate. No grievance whatever is made on behalf of any accused before us that the statements are not correctly recorded by him. Indeed during the course of the hearing, the learned Counsel of the accused have not referred to any of these fresh statements even on a single occasion. In their able and exhaustive submissions, they have even for the purposes of other accused exclusively relied on the 313, Cr.P.C. statements of Accused Nos. 1 and 9 alone and the former's Written Statement (Ex. 180) as filed in the Court.
9. We were also not happy about the learned Defence Counsel permitting a private person (Shivaji Bhimrao Bhagat) to record fresh statements of the accused persons without obtaining Court's express directions in that behalf. In order to nullify any possible prejudice to the Defence, we expressly told Shri Gumaste who is appearing for all the accused persons before us, that if all or any of them further desired to file their say, they were at perfect liberty to do so. We made this known to Shri Gumaste as early as on the 6th and arguments have finally concluded today, on the fourth day. We appreciate the fairness with which Shri Gumaste has informed the Court at the end of the arguments that none of the accused persons desires to make any further statement, inasmuch as their cases are fully depicted in the statements of Accused Nos. 1 and 9 as recorded by the lower Court and the Written Statement of Accused No. 1 (Ex. 180). We leave this particular point here with the only observation that we are fully satisfied that so far as the present case is concerned, the flaws in the procedure have not caused the least prejudice to any of the accused persons on merits. We do earnestly hope that the District Judiciary (including the Magistracy) forthwith rid themselves of the temptation to resort to any short cuts, where essentials of procedure are involved, for example, examination of accused under S. 313, Cr.P.C.
10. We are pained to note three more serious failings in the performance of the learned Judge. He has awarded a substantive sentence of just 2 years to as many as 16 convicts under S. 302/149, I.P.C. This is in obvious flagrant disregard of the peremptory provisions of S. 302, under which life imprisonment is the minimum substantive sentence. Then we fail to appreciate why the learned Judge did not record a conviction under S. 326/149 or 325/149 in spite of his unambiguous finding that Murlidhar P.W. 14 had sustained a fracture of his right frontal bone.
11. Then the methodology adopted by the learned Judge in dealing with the central question arising in the case is also far from satisfactory. In a case where the prosecution seek to rely on S. 149, I.P.C., normally the Court has in the first instance to answer the question whether the prosecution have succeeded in proving the formation of an unlawful assembly. No doubt linked with this focal question will be the plea of right of private defence when it is posed for consideration. This is so, because a group of persons who assemble bona fide for the genuine purpose of defending their person or property cannot be termed as an unlawful assembly. If the question of formation of unlawful assembly is answered in the affirmative, the Court would address itself to the next question as to what was the common object of the said unlawful assembly. The third question then would be whether the prosecution have succeeded in establishing the membership of individual accused persons. While we appreciate that in discussing both or either of the first two questions, namely (1) formation of the unlawful assembly and (2) its common object, the Court may in a general way have to go into the individual role of some or even all the accused persons, the fact remains that this is not the real stage to undertake an all-pervasive analysis of the role of every accused in full depth, in the sense the Court does in a case attracting personal liability for individual acts only as contradistinguished from vicarious liability under S. 149. In other words, at the threshold the Court has to assess the overall damage or mischief perpetrated by the assembly as a whole. It is only after these first two questions are answered by the Court in favour of the prosecution that it should proceed to sort out and analyse separately evidence qua each accused, on his individual overt act/s, in order to determine whether that material is adequate to impute to him the membership of the unlawful assembly.
12. Departure from the aforesaid logical sequence will, for obvious reasons, often result in gross miscarriage of justice. Where a Court without first determining the twin questions of formation of the unlawful assembly and its common object, straightway embarks upon a detailed and final assessment of evidence qua every accused separately, chances are high that it will get itself bogged down in its plunge and find itself unable to trace beyond reasonable doubt the authorship of any precise criminal act to any of the accused persons. Resultantly the Court will have to return a finding - a dubious finding - that the prosecution have failed to prove formation of unlawful assembly, in spite of the enormity of the damage, mischief and violence staring in its face. Needless to stress, bigger the number of the members of the unlawful assembly with matching severity of the crime, grosser will be the miscarriage of justice. The central role of S. 149 is precisely to prevent such grotesque situations. Our experience has been that quite a few Magistrates and even Sessions Judges have not grasped the true object and scope of this wholesome provision. We have been, therefore, at pains to impress rather in detail the sequence in which the Judges should proceed to determine the focal questions that arise in cases of unlawful assemblies.
13. In the case before us, though the eventual findings of the learned Trial Judge on facts are by and large correct, he has mixed up all the three central questions together. At the third stage, he has not discussed separately the evidence qua each accused to show why he holds membership of the 19 convicts duly established, and why he holds to the contrary in respect of the 10 acquitted accused. Perhaps we would have been justified in remanding the case to the lower Court for writing afresh a proper judgment. However, we have refrained ourselves from this course, inasmuch as more than six years have already elapsed since the incident and we do not desire to contribute further to the protraction of the litigation. We shall ourselves undertake the exercise of detailed analysis, wherever contingencies of justice so demand.
14. Now the defence of the group of the accused who do not plead alibi may be stated in brief. According to them, the Padik belongs to some of them and has actually been in their occupation for the last 10-15 years. They claim that they used to cut wood from the Babhul trees standing on this site every year, and as usual they did so on 18th July 1980 also. They had kept the cut branches on the site itself for being dried. Their grievance is that the complainant's party had no semblance of ownership or possession over this wood and that they acted high handedly in removing the same to the scene of offence on the evening of 29th. These accused submit that as the complainant's party did not heed their protest, they went to the scene of offence on the morning of 30th to remove the wood from there. The accused No. 1 the deceased Dattu and the absconding duo had carried with them axes and other 10-15 associates sticks, in order to remove the thorny branches. They further say that the complainant and his associates were the aggressors. Indeed according to them, it was the deceased Ganpati himself who started the incident by pelting stones at the accused persons. The accused deny that they voluntarily caused any injury to the complainant or his associates. They plead that some of them were compelled to brandish axes and sticks in defence of their bodies and property, namely the cut wood. Thus this group of accused persons also pleaded to be innocent.
15. The prosecution examined as many as 8 eye-witnesses - the five injured and in addition, Yashoda P.W. 5, Sopan P.W. 10 and Hari P.W. 11. They also led medical evidence and other evidence on recovery of articles etc. On consideration of evidence before him, the learned Judge held that the Complainant's party was in actual possession of the Padik along with the trees thereon. The accused had no concern whatever with the property and had no right of private defence thereof. The learned Judge further held that the accused themselves were the aggressors and for this reason also they could not plead right of private defence of body or property. In effect he held that the 29 accused had formed themselves into an unlawful assembly with the common object of committing murderous assault. In the result, he convicted and sentenced the convicts on different charges as indicated in the opening paragraph of this judgment.
19-1-1987
16. The defence do not challenge that the deaths of Ganpati and Vithoba were homicidal. Even otherwise in view of the unassailed evidence of Dr. Suryavanshi P.W. 19 that conclusion is inescapable. This doctor held autopsy over the bodies of Ganpati and Vithoba on the morning of 31st July 1980. Ante mortem injuries found by him on the two dead bodies are already detailed by us in paras 5 and 6 supra and need not be repeated here again. The doctor has stated that the first injury of Ganpati, namely, the incised wound over the neck (6" x 5" deep to spinal cord) was fatal and as a result thereof Ganpati must have died instantly on receipt of it. So also Vithoba's incised wound over the neck was pretty severe, cutting large blood vessels in the neck and causing fracture to the cervical vertebra. The internal damage has also been described by us in detail in paras 5 and 6 supra. Without dilating further we confirm the lower Court's finding that the death of both deceased was homicidal in nature. The possibility of these being accidental or suicidal stands absolutely ruled out.
17. The next question is which other persons were injured during the course of the incident. Again Shri Gumaste for the defence does not challenge the finding of the lower Court that on the prosecution side Complainant Kashinath P.W. 8, Sarjerao P.W. 12, Murlidhar P.W. 14, Sheshappa P.W. 15 and Jalindar P.W. 17 received injuries. So also on the other side, Accused Nos. 3 to 7 sustained injuries. Dr. Suryavanshi P.W. 19 has examined all these 10 injured persons initially at Sangola Dispensary. Jalindar, Sheshappa, Murlidhar and Accused No. 4 were further forwarded to the civil Hospital, Solapur because their injuries were comparatively more serious. At Solapur Dr. Quazi P.W. 18 examined Jalindar, Sheshappa and Murlidhar while one Dr. Bet (not examined in the lower Court) treated Accused No. 4. We have been taken through the evidence of these two doctors. The trial Judge has referred to their evidence in paras 10 to 25 of his judgment. The lower Court's observation in these paras correctly reflect the record and are factually correct. It is enough to state the substance of the facts found below in a tabular form. In column No. 3 are used abbreviations 'C.L.W.' for Contused Lacerated Wound, 'C' for Contusion, 'I' for Incised Wound, 'T' for Tenderness and 'A' for Abrasion.
---------------------------------------------------------------
Name of Relevant Number and nature of the injured
para. of the injuries received. person.
lower Court
Court judgment
and Exh. No. of
the medical
certificate.
1. 2. 3.
---------------------------------------------------------------
1. Jalindar 10 8 (3 C.L.W. + 4C
P.W. 17 Exhs. 134 + 11) (4 on the head
and 119 and 4 on the back).
All simple.
2. Sheshappa 11 17 (6 C.L.W. + 10C + 11)
P.W. 15 Exhs. 131 (4 on the head and the
and 123 rest on chest and face).
5 Fractures of hard
pallet, left maxilla,
right maxilla, Zygomatic
frontal suture and
temporoparietal region of
the skull.
3. Murlidhar 12 5 (2 C.L.W. + 3C)
P.W. 14 Exhs. 132 (2 on the head and
and 125 the rest on the right
side of he back).
Fracture of
right frontal bone.
4. Sarjerao 22 2 (1A + 1T)
P.W. 12 Exh. 141 Both insignificant.
(wrongly
stated as
142 in the
judgment)
5. Complainant 16 7 (1 C.L.W. + 3C + 2A
Kashinath Exh. 133 + 1 Punctured wound).
P.W. 8 (over the
Vault, back and
Lumber region).
6. Accused 24 1 C.L.W. 2" x
No. 3 Exh. 144 1/2" scalp deep
Raosaheb. on the forehead
right side of
simple nature.
7. Accused 13, 18 5 (2I + C.L.W. +
No. 4 and 22, 1) fracture of
Shrimant. Exhs. 135 styloid process
and 128. of Lt. Ulna.
8. Accused 16A 4 (2T + 1A + 1I)
No. 5 Exh. 142 All insignificant
Tanaji. injuries.
9. Accused 25 2 (1 C.L.W. + 1C)
No. 6 Exh. 145. (on the vault and
Shahaji scapula). Both
insignificant.
10. Accused 22 3 (1C on left
No. 7 Exh. 143. forearm, 1A on mandible
Namdeo. and 1T on right thigh).
All injuries
insignificant.
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18. It will thus be seen that the two deceased and 5 prosecution witnesses (Sheshappa, Murlidhar, Complainant, Jalindar and Sarjerao) in all received 51 injuries, while the Accused Nos. 3 to 7 in all received 15 injuries. Of them, leaving aside the two deceased, two on the prosecution side (Sheshappa and Murlidhar) have also sustained fractures. On the side of the Accused No. 4 alone has a minor fracture.
19. Now we go to the crucial question whether the prosecution have successfully established the formation of the unlawful assembly and also its common object. Naturally linked with these twin questions will be the question of right of private defence of property and of body raised by the defence. If the Court comes to the conclusion that the accused's party had inflicted injuries on the complainant's side in exercise of their right of private defence of property and/or body, it will have to be concluded that the common object of the assembly was not to commit any offence, but was to defend themselves and/or their property, which right they very much possess under the law. In that case, will arise the further question whether they have exceeded in exercise of that right. On the other hand, if the lower Court's finding is correct that the assembly of the accused persons had no right of private defence whatever the assembly would have to be held as unlawful assembly. The lower Court has held that the accused's party and not the complainant's party were the aggressors. If this finding is right, then the accused persons cannot claim the right of private defence at all. Keeping this undisputable legal propositions at the back of our mind, we proceed to examine the evidence on record.
20. First of all we shall consider the evidence on the question how the deceased Ganapati and Vithoba came to sustain their injuries. The prosecution have in all examined 8 eye-witnesses, namely, the five injured persons and Yashoda Dajiram Ghule P.W. 9, Sopan P.W. 10 and Hari P.W. 11. Yashoda is Ganapati's maternal uncle's wife, Hari P.W. 11 is the natural brother of the deceased Vithoba, whereas Sopan P.W. 10 is Ganapati's maternal uncle. All these 9 witnesses affirm that as they reached the scene of offence, they saw some of the accused persons taking away the cut Babhul branches from there. When Ganpati asked them not to do so, Accused No. 1, these witnesses affirm, suddenly gave an axe blow on the neck of the deceased Ganpati. Receiving the blow, Ganpati instantly slumped down. Thereafter Accused Nos. 3, 4, 5, 6 and 10 are said to have further assaulted the deceased Ganpati with axes and sticks. Meanwhile Vithoba proceeded towards him. Instantly Accused No. 2, the witnesses affirm, dealt an axe blow on the neck of Vithoba. Vithoba also immediately fell down. Thereafter, the witnesses add, Accused Nos. 4, 7, 10, 12 and 13 further assaulted him with axe and sticks. The duo breathed their last on the spot itself. As regards the assault on the other five injured persons, we shall separately deal with the evidence thereon.
21. We note that all the 8 eye-witnesses have consistently involved Accused No. 1 as the person who gave the first and fatal axe blow to the deceased Ganpati. As regards the role of other accused (namely Nos. 3, 4, 5, 6 and 10) there are some variations in the evidence of different witnesses, which we shall shall refer to a little later while scanning their evidence. So far as the deceased Vithoba is concerned, again all the 8 eye-witnesses unambiguously affirm that it was Accused No. 2 who initiated the assault on him by dealing one fatal axe blow on the neck of the deceased. Again there is some variation in the testimony of the different witnesses as regards the involvement of other accused in this particular episode.
22. As regards the involvement of Accused Nos. 1 and 2 on the question of causing death of Ganpati and Vithoba respectively, we do not see any good reason for disbelieving the evidence of any of the 8 eye-witnesses. Reasons are given by the learned trial Judge in paras 45 to 51 of his judgment for believing these witnesses. By and large, they are correct. Shri Gumaste contends that all the 8 eye-witnesses are either relations or intimate friends of the two deceased. According to the learned Counsel, independent eye-witnesses were also available to the prosecution and as such an adverse inference should be drawn against the prosecution for their failure to examine any of them. In this context, our attention was drawn to the evidence to the effect that there is a primary school located just close to the scene of offence and that this school starts in the morning around 7. The suggestion is that the incident took place at least half an hour after the school had already assembled and as such some teachers or students could have been examined by the prosecution. Our attention is also drawn to the fact that Mangs and Ramosh is live in the vicinity of the scene of offence. Some of them could have been examined as eye-witnesses.
23. We are not impressed by this submission of Shri Gumaste. In the first place there is no positive material on the record to enable us to draw an inference that any particular person/s having no connection whatever with either rival party, had actually witnesses the incident. A look at the plan Exh. 68 of the scene of offence shows that the school building is beyond a streamlet, and is not that close to the scene of offence, as sought to be made out by the defence. We cannot agree with Shri Gumaste that some of the teachers or students engaged in their work in that building must have been the incident. In absence of any material to inter that any particular uninterested person/s had actually witnessed the incident, it will be futile for us to draw any such adverse inference against the prosecution.
24. We note that while assessing the evidence of the 8 eye-witnesses, the learned trial Judge was well aware of his duty to be more cautious and careful than usual, because they are either relations or friends of the two deceased and the injured persons. Shri Gumaste has taken us through the entire evidence of these 8 witnesses. So far as the involvement of accused Nos. 1 and 2 is concerned, we do not see any reason to suspect the evidence of any of them. We need not repeat that of the 8 witnesses, 5 have undisputably sustained injuries during the course of the incident itself. It is true that the remaining 3 witnesses - Yashoda, Sopan and Hari - have not sustained any injuries. However this circumstance by itself does not render their testimony suspect. So far as Yashoda is concerned, apart from her evidence, there is evidence of P. I. Patil P.W. 23 (Investigating Officer) and Panch Sukhdeo P.W. 1 to the effect that at the time of the panchnama of the scene of offence (Ex. 36) made on 30th July 1980 itself, pieces of her bangles were inter alia seized from there. This creates a ring of truth round Yashoda's claim that she had witnessed the incident.
25. Sopan P.W. 10 is the maternal uncle of the deceased Ganpati. According to him he had come to his daughter-in-law's place early in the morning to convey a message regarding some agricultural operations. Hari P.W. 11 is Vithoba's real natural brother. Their uncle who had no son took the latter in adoption. According to him on the material morning around 7, he was sitting at his own house when he saw the deceased Vithoba leaving it after breakfast. The two houses are close to each other. Within a short time, he saw about 30 persons (including the accused persons) dragging branches from the scene of offence. This excited the curiosity of the witness who went to the scene of offence and saw the ghastly occurrence. The evidence of these three witnesses as well, who were fortunate not to receive any injuries, in our opinion, does not suffer from any serious infirmities and can be safely accepted. We have thus no doubt whatever that all the eye-witnesses have actually witnessed the incident and are telling the truth.
26. Without dilating further, we hold that on the material morning, the incident started with Accused No. 1 dealing an axe blow on the neck of Ganpati, when the latter asked the accused persons not to take away the branches from there. We also hold that Accused No. 2 also dealt an axe blow on the neck of Vithoba when the latter tried to go to the rescue of Ganpati. Both these blows were fatal, as Dr. Suryavanshi vouches, and resulted in the instant death of the two.
27. We pause here a little to refer to the recoveries of several articles at the instance of Accused Nos. 1, 2, 3, 5, 6, 8, 10, 13, 16, 17, 20, 21 and 29. The learned trial Judge has by and large accepted this evidence as true. We are, however, not much impressed by it, inasmuch as most of the articles are not satisfactorily connected with the crime by independent relevant evidence, such as find of blood-stains on the axes or sticks claimed to have been recovered at the instance of some accused persons. In absence of such link, S. 27, Evidence Act does not operate. So even assuming that certain common articles like axes or sticks were recovered at the instance of some accused, mere seizure will not attract S. 27 ibid. In view of this position, we do not embark on the scrutiny of evidence of different witnesses on the various recoveries relied upon by the prosecution.
28. We revert to the question as to who were the associates of Accused No. 1 in the assault on the deceased Ganpati. In this regard the Complainant involves Accused Nos. 3, 5 and 10, Sarjerao P.W. 12, Murlidhar P.W. 14 and Sheshappa P.W. 15 involve Accused Nos. 3, 5 and 6; while Jalindar P.W. 17 involves Accused No. 4 also in addition to Nos. 3, 5 and 6. Yashoda involves Accused Nos. 4 and 6 Hari Accused Nos. 5 and 6 and Sopan Accused Nos. 3 to 5. Shri Gumaste contends that one and all of these witnesses have omitted to state in their police statements that the deceased Ganpati fell down on receiving the very first blow at the hands of Accused No. 1 and that it was thereafter that the associates of Accused No. 1 continued the assault on the deceased with axes and sticks. According to the learned Counsel, this omission is very important and shows that the witnesses are giving false evidence. We are not impressed by this submission at all. As the unchallenged medical evidence shows, as many as 9 injuries were inflicted on Ganpati some of which could be caused by sharp weapons and others by hard blunt weapons. It will be ludicrous to hold that all these injuries were dealt by a single person by himself. It is obvious that there was multiple attack on this Ganpati.
29. The nature of the incised wound on Ganpati's neck leaves no doubt whatever that immediately on receipt of that injury, he must have slumped down. We are aware that Ganpati was a very strong and stout person and was in fact nicknamed "wagh" (tiger) in the village. If this could mean that he had more than usual strength to sustain against the attack, it could have also motivated the attackers to take him by surprise and eliminate him at the very start. We have no doubt that Ganpati was practically finished by the very first dealt by accused No. 1 on the neck and that he fell down. The rest of the injuries must naturally have been caused by some other associates of Accused No. 1, not only with sharp weapons like axes, but also with blunt objects. We thus do not attach any importance to the omissions in the Police Statements pointed out by Shri Gumaste.
30. It is true that the witnesses have omitted in their police statements, the names of some of the associates of Accused No. 1 in their assault on Ganpati. Some omissions are bound to be there, considering the fierceness and suddenness of the assault. After scanning the evidence with the valuable assistance of the learned counsel, we find that accused No. 3 is consistently involved by Sarjerao P.W. 12, Murlidhar P.W. 14 and Jalindar P.W. 17 without any infirmity in their testimony. Kashinath P.W. 8, Murlidhar P.W. 14, Sheshappa P.W. 15, Sopan P.W. 10 and Hari P.W. 11 unmistakably involve Accused No. 5. Sarjerao P.W. 12, Murlidhar P.W. 14 and Hari P.W. 11 implicate Accused No. 6. All these witnesses have stood the test of cross-examination well. We find that Yashoda P.W. 9, Sopan P.W. 10 and Hari P.W. 11 have not at all indulged in exaggeration. They have restricted their evidence strictly to the assault on the two deceased. If these were not truthful witnesses, they could also have tried to implicate other accused also. We are thus more than satisfied that the prosecution evidence establishes that Accused Nos. 3, 5 and 6 had also taken part in the assault on Ganpati. So far as Accused No. 4 is concerned, we would like to give him benefit of doubt, because almost all eye-witnesses have omitted in their police statements to assign any part to him on this restricted aspect.
31. Now Vithoba. We note that complainant P.W. 8 and Sopan P.W. 10 have omitted to state in their police statements expressly that it was the Accused No. 2 who had dealt the fatal axe blow on the neck of Vithoba. We, however, see no reason whatever to suspect the evidence of Sarjerao P.W. 12, Murlidhar P.W. 14, Sheshappa P.W. 15, Yashoda P.W. 9 and Hari P.W. 10 clearly implicating Accused No. 2 as the person who gave the first blow to Vithoba by an axe and thereby caused him to slump down. The fact that after Vithoba fell down on receiving the first blow, other members of the assembly also assaulted him stands duly proved, although the evidence is not precise as to which individuals participated in this attack. One has only to visualise the situation to understand the inability of witnesses to be very precise on this aspect. However, apart from the fatal axe blow on the neck, the evidence of Dr. Suryavanshi show that Vithoba had sustained one confused lacerated wound on the vault and an incised wound on the right ear. This shows that he had received injuries with a hard and blunt object also after he had fallen down. It is thus clear that apart from Accused No. 2, at least one more person had assaulted deceased Vithoba with a hard and blut object like a stick.
32. The authorship of the killing of Ganpati is thus clearly traced to Accused No. 1, and that of Vithoba to Accused No. 2.
33. Now we take up the question as to which of the two rival groups were the aggressors. According to all of the 8 eye-witnesses, the initiative on the fateful morning came exclusively from the side of the accused persons. We have already found that it was Accused No. 1 who fired the first salvo in the matter by giving a fatal axe blow to Ganpati. This was done by him without any provocation from the side of the complainant. The evidence shows that Ganpati had only asked the accused persons not to remove Babhul branches from the scene of offence. This oral protest of Ganpati could not by no stretch of imagination clothe Accused No. 1 with the right to assault Ganpati, much less fatally.
34. It is then significant to note that on the side of the complainant, as many as two persons were done to death and another five wounded, some of them seriously. The total tally of injuries dealt on the members of the complainant's party goes up to 51. The corresponding tally for 5 injured on the Accused's side is just 15. Only one of them - Accused No. 4 - sustained fracture to his Ulna. The injuries on the other 4 were insignificant.
35. We need not point out that the initial advantage of a sudden attack always rests with the aggressors, which is so patently obvious in the present case. If the complainant's party - which included a 'tiger' like Ganpati - were the real aggressors, they would not certainly have suffered serious casualties as they actually did. Further the accused persons could not have managed to escape with nominal injuries. While we do not mean to suggest that the question as to who is the aggressor can be decided by mere arithmetic, we do feel that this is one of the relevant factors to be taken into consideration. We have absolutely no doubt that the accused's party were the aggressors and not the complainant's. It follows that the accused persons cannot claim right of private defence of property or body against the complainant's party.
36. Even independently viewed from a different angle, the accused's party cannot claim right of private defence. As the admitted position is, some members of the complainant's party had already brought the cut branches from the padik to the scene of offence on the evening of 29th July 1980. When Accused Nos. 3 and 6 came to know this fact, it transpires, they decided to remove the wood from there with the help of their associates. According to the complainant and his associates, the padik was secured by Sheshappa from the Gram Panchayat in March 1980. On this particular aspect, the prosecution have adduced documentary evidence. Resolution No. 78 (part of Ex. 111) was passed by the Gram Panchayat on 31st March 1980 imposing annual property tax of Rs. 10/- on that site. Exh. 103 is an application dated 28th March 1980 made by Sheshappa P.W. 15 and his four associates (Digambar. Sidha, Murlidhar P.W. 14 and Janardhan) to the Gram Panchayat for allotment of the padik to them. The aforesaid resolution came to be passed on the basis of this application. Exh. 113 is a receipt dated 23rd July 1980 passed by the Gram Panchayat in favour of the aforesaid grantees. This receipt shows that Rs. 10/- were paid by the grantees to the Gram Panchayat as property tax for that site. The prosecution have examined Ramchandra Sukhadeo Singh P.W. 16 who was working as Gram Sevak of the Gram Panchayat at all material times. He has proved all the aforesaid documents.
37. Shri Gumaste for the accused persons challenges the genuineness of these documents. According to him, they were subsequently brought about by the complainant's side in order to undo the application which was preferred by some of the accused persons to the Gram Panchayat on 21st July 1980 (Exh. 104) for recording their names as owners of this site. This application which is also proved by the Gram Sevak is signed by as many as 15 persons, almost all of whom are arraigned in the present case as accused. We have carefully gone through Exhs. 103, 111 and 113 to see whether there is any merit in Shri Gumaste's contention. We find nothing suspicious about any of these documents. Exh. 111, which are the proceedings of the meeting of the Gram Panchayat held on 31st March 1980 show that as many as 8 Panchas had attended the meeting. It is not as if Sheshappa's case pertaining to the site No. 105A was the lonely matter decided in that meeting. Assessment of as many as 16 sites was fixed on that day. The place at which Sheshappa's receipt dated 23rd July 1980 (Exh. 103) obtaining in the book of counterfoils, also negatives the possibility of any suspicion about its genuineness. We have absolutely no hesitation in endorsing the finding of the learned trial Judge that Sheshappa P.W. 15 and his associates had in fact applied for allotment of the padik to them as early as 20th March 1980 - that is more than 4 months before the unfortunate incident - and that they had also paid assessment for the site on 23rd July 1980 to the Gram Panchayat. This creates a ring of truth round the contention of the prosecution that Sheshappa and his associates were in settled possession of the padik long before July 1980 when the incident occurred.
38. As against this, there is absolutely no material on record to uphold the claim of the accused persons that they had been cutting wood from the padik for 10 to 15 years before the incident. It appears that they had preferred the application on 21st July 1980 to the Gram Panchayat, just in order to nullify the action which Sheshappa and his associates had already initiated in March 1980. The evidence shows that the padik is away from the farm house of accused persons, but is close to Sheshappa's Vasti. Considering all the relevant materials on record, we are at one with the trial Judge in holding that the Accused's party had no right of private defence at all - either of body or property.
39. This clears the pitch for the finding that an unlawful assembly was in fact formed in the eve of the ghastly occurrence of 30th July 1980. The evidence of the 8 eye-witnesses leave no doubt that there were about 30 members of this assembly. As regards the common object of any unlawful assembly, the relevant consideration inter alia are the motive for the crime, the weapons used in the attack, and the conduct of the assailants both before and at the time of the attack. The motive for the crime in our case is obvious, namely that the members of the unlawful assembly wanted to remove the wood from the scene of offence by use of force, although they were not entitled to do so. Dangerous weapons like axes, sticks etc. were liberally used in the attack. The assembly took the complainant's side completely by surprise and had already perpetrated two murders before the latter could collect their wits. There were as many as 7 casualties on the side of the complainant's party, of which two proved fatal. The injuries suffered by the accused's side were comparatively insignificant.
40. Here we pause to dispose of Shri Gumaste's submission that adverse presumption should be drawn against the prosecution for their failure to explain the presence of injuries on the five accused. He heavily relies on a Supreme Court decision Lakshmi Singh v. State of Bihar. The Supreme Court no doubt has ruled that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of the incident is a very important circumstance from which the Court can inter alia draw the inference that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. This is, however, just one side of the coin. In para 11 of the same judgment, their Lordships do recognise contingencies, where absence of such explanation may not affect the merits of the prosecution case. According to the Supreme Court, no such adverse inference could be drawn against the prosecution where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent and so probable that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present is a case where we have noted that the injuries sustained by the accused persons are absolutely insignificant compared to those sustained by the members of the complainant's side. Although the eye-witnesses are the totally disinterested, we have believed them, so far as the core of prosecution version of the incident goes. In the circumstances of the case, we are not inclined to draw any adverse inference against the prosecution as desired by Shri Gumaste.
41. Taking a comprehensive view of all the relevant materials, the conclusion is irresistible that the common object of the unlawful assembly was to remove the Babhul wood from the scene of offence at any cost, even by committing murderous assault on the members of the complainant's party, if necessary. We find accordingly.
42. This takes us to the question as to which of the accused persons have been duly proved to be the members of the aforesaid unlawful assembly. It is true that there is evidence of the aforesaid eye-witnesses to the effect that all the 29 accused persons and three more (deceased Dattu and absconding accused Bhausaheb and Appasaheb) were physically present during the incident and that most of them were armed with axes or sticks etc. However, the mere presence of a person at the scene of offence even if he is armed with an axe or a stick will not by itself be enough to return a finding that he was a member of the unlawful assembly. This is because here the party of the accused had gone to the scene of offence in order to remove Babhul branches from there to their own place. For this limited operation also, sticks and even axes would have been necessary for the carriers of the thorny branches, without getting themselves injured. We would, therefore, insist on some additional overt act on the part of a particular accused before we hold him to be a member of the unlawful assembly. This will then be our approach to determining the liability of the accused persons under S. 149.
43. While discussing the assault on the deceased Ganpati and Vithoba, we have already held that Accused Nos. 1 and 2 were connected with the crime as principal offenders and Accused Nos. 3, 5 and 6 as their close associates. Resultantly, without dilating further, these accused must be held to be the members of the unlawful assembly.
44. Next we take up the individual cases of the rest of the convicts. Accused No. 4 is involved by complainant P.W. 8, Yashoda P.W. 9, Sopan P.W. 10, Sarjerao P.W. 12 and Jalindar P.W. 17. According to all these five, Accused No. 4 assaulted Ganpati with axe after the latter had fallen down. Jalindar P.W. 17 further states that this particular accused had assaulted him also (Jalindar) with axe. We take note that Sopan and Sarjerao have omitted in their Police Statements to assign specifically any individual role to this accused. It will not, therefore, be safe to act on the evidence of these two witnesses. According to Shri Gumaste, Jalindar P.W. 17 has also omitted in his police statement to assign any specific overt act to accused No. 4. Now Jalindar has sustained quite a few injuries during the incident and from the witness box assigns definite act/s to about a dozen of the accused persons. Yet he is said to have omitted to do so in his police statement. This incongruity has naturally exercised our mind. On a closer examination, we find that there is no substance in it.
45. It has come on record that Jalindar was an indoor patient in the Civil Hospital, Solapur from 30th July 1980 to 2nd August 1980. Head constable Gurav P.W. 24 of the Sadar Bazar Police Station, Solapur was on Hospital duty. He was detailed by the Station House Officer to visit Jalindar in the Hospital and arrange for his dying declaration being recorded by a Special Executive Magistrate. Accordingly this Gurav visited Jalindar on 31st July 1980 and recorded his statement on that day. It is this statement which according to the defence bristles with a number of omissions. After his discharge from the Hospital, Jalindar was examined by P.S.I. Patil P.W. 23 in detail on 5th August 1980. It is significant to note that the defence have not brought on record any such omissions in this statement. The solitary omission in this statement of 5th August is that the witness has failed to mention the names of Accused Nos. 9, 11, 19 and 17 as being present on the scene of offence at the time of the incident.
46. The question that naturally arises before us is as to what importance, if any, ought to be given to the omissions in the statement of 31st July 1980. A plain reading of H. C. Gurav's evidence will bear out that he had seen Jalindar in the Hospital on 31st July with the limited object of ascertaining whether he was fit for making a statement before the Special Executive Magistrate. The Head constable did not even belong to Sangola Police Station who were conducting the investigation. Obviously his object was not to record himself a detailed statement of Jalindar during the course of investigation as contemplated by S. 161, Cr.P.C. In these circumstances little importance, if any, will have to be given to the omissions ascribed to Jalindar in his statement of 31st July 1980. His statement under S. 161, Cr.P.C. came to be recorded in the real sense for the first time on 5th August only by P.S.I. Patil. So far as this is concerned, the defence have not brought forth any material omission or contradiction. In short, we will not be attaching any importance to the omissions in Jalindar's statement of 31st July.
47. Reverting back to the evidence on the membership of Accused No. 4, we see no good reason to reject the testimony of Jalindar that this accused had assaulted not only Ganpati with axe, but himself also. There is thus more than satisfactory evidence of Jalindar P.W. 17, Yashoda P.W. 9 and complainant P.W. 8 connecting Accused No. 4 actively with the incident. We hold that his membership of the unlawful assembly has been proved beyond any reasonable doubt.
48. We go to Accused No. 7. We have the evidence of complainant P.W. 8 and Jalindar P.W. 17 involving this accused. According to the complainant, Accused No. 7 gave an axe blow to Jalindar, whereas Jalindar states that this accused had assaulted deceased Vithoba with axe. We note that Jalindar does not claim that Accused No. 7 had assaulted him also. In view of this discrepancy, it may not be possible to identify positively the person who was the object of attack at his hands. However, the evidence does show that this accused was very much involved in the thick of the assault. Here we are primarily concerned with fixing the vicarious liability of a particular accused as contemplated by S. 149 I.P.C. Once we are satisfied that a particular person had in fact actively participated in the assault, it is not further necessary to identify with precision his exact role. If this position in law is not accepted, S. 149 would lose all its significance. We are satisfied that the membership of Accused No. 7 has been established by the prosecution beyond reasonable doubt.
49. This takes us to Accused No. 8 Babasaheb. As against him, we have the evidence of complainant P.W. 8 and Murlidhar P.W. 14. They both affirm that this accused had assaulted Murlidhar P.W. 14. While the complainant states in general terms that Accused No. 8 beat Murlidhar by a stick, the latter is precise that this accused had struck him with stick on the right shoulder. The medical evidence shows that there was diffused swelling on Murlidhar's right shoulder joint and contusion of 3" x 1" on the right scapular region. It was pointed out that the complainant had omitted to assign any specific role to this accused on the F.I.R. After all F.I.R. is not a catalogue of all particulars of the occurrence. We are not persuaded to give much importance to this omission. Membership of the unlawful assembly has been satisfactorily brought home to this accused.
50. Now Accused No. 10 Vasant Bhagat. He is involved by as many as 4 witnesses - complainant P.W. 8, Murlidhar P.W. 14, Sheshappa P.W. 15, and Jalindar P.W. 17. According to complainant this accused had given blow to Ganapati. According to Murlidhar and Sheshappa, Vithoba was the victim of his assault, Jalindar states that this accused had beaten Sheshappa with stick; Sheshappa does not say that this accused had assaulted him. Again we may repeat that while considering a person's liability under S. 149, I.P.C., actual part played by him in the incident need not be located with absolute precision. What we will have to see is whether accused No. 10 did actively participate in the assault. We cannot be oblivious to the fact that in the F.I.R. which was lodged by the complainant within a matter of 4 hours of the incident at Sangola Police Station, there is a mention of the presence of this accused during the incident, armed with an axe. The F.I.R. however says that Ganpati had died due to the axe injuries caused by Accused Nos. 1, 10 and others. Jalindar is definite that this particular accused had assaulted Sheshappa also. We have already decided to ignore omissions of Jalindar in his so-called statement of 31st July recorded by H. C. Gurav. We are aware that Murlidhar and Sheshappa have omitted to state in their police statements that this particular accused had assaulted Vithoba. All the same, the evidence of the witnesses is more than adequate to prove the fact that this accused had taken part in the assault, although the details of his role cannot be located with precision. We hold that Accused No. 10 was a member of the unlawful assembly.
51. Now we go to Accused No. 12 Abasaheb. Complainant P.W. 8 and Sarjerao P.W. 12 affirm that this accused had assaulted Sheshappa. According to Murlidhar, Sheshappa and Jalindar, this accused had assaulted Vithoba. We note the discrepancy in the evidence of these witnesses. Also that the witnesses have omitted to assign any individual role to this particular accused in their Police Statements. This particular omission may have significance qua determining the precise details of the role of the culprit. However, we will not be justified in brushing aside the evidence of all the five witnesses, so far as the broad question of his participation in the assault, is concerned we hold that this accused was also a member of the unlawful assembly.
52. Accused No. 13 is involved by complainant P.W. 8, Murlidhar P.W. 14 and Jalindar P.W. 17. Again while the complainant states that this accused had given an axe blow to Sheshappa, the other two witnesses state that he assaulted Vithoba. We note that Sheshappa does not affirm that this accused assaulted him. We cannot forget the fact that Sheshappa has sustained as many as 8 injuries 5 fractures. We have only to understand the state of his mind and his consequent disability to keep a sustained watch on the individual performance of each of his assailants. Although we may not be able to locate the precise part taken by this accused in the assault, we are satisfied that he was very much involved in the thick of the said assault as an aggressor. As such we hold that the lower Court was right in holding that he was a member of the unlawful assembly.
53. Accused Nos. 15 Shivaji, 16 Mahadeo and 23 Kakasaheb need not detain us for long. None of the witnesses deposes to their participation in the assault, although their presence on the scene of offence is affirmed by some. These three accused deserve acquittal.
54. Now Accused No. 17 Mahadeo. Sarjerao P.W. 12 and Jalindar P.W. 17 involve him. According to Sarjerao, this accused had assaulted him with stick on the head and hand. Jalindar P.W. 17 also states that this accused and Accused No. 20 had assaulted him (Jalindar) with stick. The medical evidence shows that Sarjerao P.W. 12 had an abrasion on the head and tenderness of the left wrist. This corroborates the claim of Sarjerao. Jalindar had 8 injuries on his person. So his claim also receives support from medical evidence. Without dilating further, we hold that the evidence of these two witnesses is more adequate to bring home to accused No. 17 the membership of the unlawful assembly.
55. We now go to Accused No. 19 Rangnath. Only Murlidhar has stated that this accused had beaten Sheshappa. Sheshappa does not say so. Murlidhar has not referred to the alleged assault by this accused on Sheshappa either in his so-called dying declaration or Police Statement. In the circumstances we give benefit of doubt to this accused. He will be acquitted.
56. Accused No. 20 Kashinath is involved by Jalindar P.W. 17 alone. Jalindar is positive in his evidence that this accused and Accused No. 17 had assaulted him. We are conscious that this particular role of the accused is not referred to by Jalindar in his statement recorded by H. C. Gurav. However, we ignore this omission for the reasons already stated. We do not see any reason to reject the testimony of Jalindar. Accordingly we confirm the finding of the lower Court that this accused was a member of the unlawful assembly.
57. Accused No. 24 is involved only by complainant Kashinath P.W. 8. According to this witness, this particular accused had taken part in assaulting him (complainant). We know that the complainant has not assigned any particular individual role to this accused in the F.I.R. However there is a mention in it that all accused (which term obviously included No. 24 also) had taken part in the assault. Accepting the evidence of the complainant, we hold that the membership of this accused has been duly proved.
58. We now go to the evidence against Accused No. 29. Murlidhar P.W. 14 alone involves him. According to Murlidhar this accused assaulted him with a whip (described by the witness as a 'hunter'). The medical evidence does not show any weal mark on the body of Murlidhar. Assault with a whip would have caused a conspicuous weal mark. In the circumstances, we are inclined to give benefit of doubt to this accused. He will be acquitted.
59. The net result of the above discussion is that out of the convicts, membership of Accused Nos. 15, 16, 19, 23 and 29 had not been proved beyond reasonable doubt. They will be thus entitled to acquittal. The membership of the rest of the 14 convicts, that is to say Accused Nos. 1, 2, 3, 4, 5, 6, 7, 8, 10, 12, 13, 17, 20 and 24 stands proved beyond any reasonable doubt. Their convictions are thus held to be in order.
60. We now go to the State's Criminal Appeal No. 601 of 1982 and the complainant's Criminal Revision Application No. 321 of 1982 against the acquittal of Accused Nos. 9, 11, 14, 18, 21, 22, 25, 26, 27 and 28. None of these accused except No. 21 Babu and No. 25 Shamrao are involved by any of the witnesses. We need therefore consider the evidence as against Accused Nos. 21 and 25 alone. Murlidhar P.W. 14 states that Accused No. 21 had assaulted Sheshappa. Sheshappa does not say so. In his police statement as well as the so-called dying declaration, Murlidhar has omitted to assign any particular role to this accused. There is no compelling reason to disagree with the lower Court which has acquitted him. This acquittal will accordingly stand.
61. Coming to accused No. 25 Shamrao, the complainant alone involves him. According to the complainant, this particular accused had assaulted him with stick. There is no mention of this fact in the F.I.R. We do not see any good reason to disturb the lower Court's finding of acquittal. The State appeal and the complainant's revision against the acquittal thus stand dismissed in toto.
62. Now the last question is about the enhancement of sentences imposed on the convicts. The learned Judge has sentenced the convicts (except Accused Nos. 1 to 3) to 2 years R.I. in the count of murder under S. 302/149. This obviously goes counter to the express provisions of S. 302, I.P.C. The Court has no discretion to award a substantive sentence less than life imprisonment. The aberration in this behalf will have to be corrected. The sentence under S. 302/149 I.P.C. awarded to Accused Nos. 4, 5, 6, 7, 8, 10, 12, 13, 17, 20 and 24 is being enhanced to life imprisonment. No such order is necessary in respect of Accused Nos. 15, 16, 19, 23 and 29 who are being acquitted by us outright. Although the memorandum of appeal requests for passing of death sentence against the convicted persons, Shri Chopda for the State did not press for the same and, in our opinion, very fairly and rightly. We also see no reason to enhance the sentences awarded under S. 307/149 or S. 324/146 I.P.C. in respect of any convict. The lower Court has passed separate sentences for the offence punishable under S. 148. We do not think separate sentence under S. 148 is called for in addition to substantive sentences on other major counts.
63. Before parting with these cases, we would like to place on record our appreciation for the assistance given to us by the learned Counsel of both sides - Public Prosecutor Shri Chopda and S/Shri Gumaste and Bhonsale.
64. Criminal Appeal No. 601 of 1982 filed by the State against the acquittal and the Complainant's Criminal Revision Application No. 321 of 1982 stand dismissed. The convicts' Appeal No. 496 of 1982, State Appeal No. 588 of 1982 for enhancement of sentence and Criminal Revision Application No. 517 of 1982 (registered on the basis of the suo motu notice issued by Rege and Jamdar, JJ. for enhancement of sentence) are partly allowed. The conviction and sentences of accused Nos. 15, 16, 19, 23 and 29 are set aside on all counts. They stand acquitted of all the charges levelled against them. All these 5 accused are on bail. Their bail bonds stand cancelled. The conviction of the rest of the 14 convicts (Accused Nos. 1 to 8, 10, 12, 13, 17, 20 and 24) is maintained on all counts in terms of the order of the lower Court. While maintaining the conviction of these 14 convicts under S. 148, I.P.C., we set aside the sentence on this count as against all of them, inasmuch as a separate sentence on this count is unnecessary. The sentence of life imprisonment awarded by the lower Court to Accused Nos. 1 to 3 under S. 302/149 I.P.C. is maintained. The sentence of 2 years' R.I. and fine of Rs. 1000/- awarded under S. 302/149, I.P.C. to accused Nos. 4, to 8, 10, 12, 13, 17, 20 and 24 is enhanced to imprisonment for life. Imposition of fine on them on this count is set aside. Sentences awarded under sections 307/149 and 324/149 I.P.C. will stand in respect of these 11 accused as well as Accused Nos. 1 to 3. Fine which do not survive in view of our order, if already paid by any accused, shall be refunded to him. Substantive sentences shall run concurrently.
65. At the request of Shri Gumaste, time is granted up to 15-3-1987 to the accused concerned to surrender themselves to bail. Their bail bonds shall stand cancelled only after their surrender.
66. Ordered accordingly.