Bombay High Court
Prakash Dattatrey Khandekar And Ors vs The State Of Maharashtra And Ors on 25 February, 2021
Equivalent citations: AIRONLINE 2021 BOM 583
Author: N. J. Jamadar
Bench: Sadhana S. Jadhav, N. J. Jamadar
CRIAPPEAL-517-2015-J-.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 517 OF 2015
WITH
CRIMINAL APPLICATION NO. 1306 OF 2015
1. Prakash Dattatrey Khandekar
aged : 49 years.
2. Vaibhav Daulat Khandekar
Aged : 30 years.
3. Arjun Dattatrey Khandekar
Aged : 62 years.
4. Vasant Dattatrey Khandekar
Aged : 55 years
5. Chandrakant Keshav Khandekar
Aged : 57 years
6. Daulat Tukaram Khandekar
Aged : 64 years
7. Sunil Sakharam Khandekar
Aged : 48 years
8. Haresh Krishna Khandekar
Aged : 35 years
9. Madhukar Moru Khandekar
Aged : 62 years
10. Krishna Sahadeo Khandekar
Aged : 70 years
11. Eknath Jairam Khandekar
Aged : 45 years
12. Giridhar Khelu Khandekar
Aged : 48 years
13. Sonu Jairam Khandkar
Aged : 44 years
14. Dilip Namdeo Khandekar
Aged : 45 years
15. Somnath Mahadeo Khandekar
Aged : 41 years
16. Shailesh Gunaji Khandekar
Aged : 37 years
17. Sudhir Namdeo Khandekar
Aged : 41 years ...Appellants
All residents of Pale Tarfe Ashtami, (Ori. Accused
Tal Roha, District Raigad nos.1 to 17)
1/88
CRIAPPEAL-517-2015-J-.DOC
(All are at present lodged in Nashik
Road Central Prison)
Versus
1. The State of Maharashtra
At the instance of Roha Police Station
vide their CR No.40 of 2012.
2. Smt. Indumati Dattatrey Khandekar
3. Nivrutti Janu Khandekar
4. Sudhir Bhagwan Khandekar
Nos.2 to 4 residing at Pale Tarfe ...Respondents
Ashtami, Tal. Roha, District Raigad. (nos.2 to 4 ordered to
receive compensation)
Mr. Shirish Gupte, Senior Counsel, a/w Mr. Sudeep Pasbola, Mr.
Karl Rustomkhan & Mr. Rahul Arote, for the Appellants.
Ms. P. P. Shinde, APP for the State/Respondent.
Ms. Amita Kuthikrishnan, Court appointed Advocate for
respondent nos.2 to 4.
CORAM: SMT. SADHANA S. JADHAV
& N. J. JAMADAR, JJ.
RESERVED ON : 10th December, 2020
PRONOUNCED ON: 25th February, 2021
JUDGMENT :(Per: N. J. Jamadar, J.)
1. This appeal is directed against the judgment and order dated 17th April, 2015, passed by the learned Additional Sessions Judge, Mangaon, District Raigad, in Sessions Case No.20 of 2012, whereby and whereunder the appellants - accused were convicted for the offences punishable under Sections 302, 307, 324, 504 and 506 read with Section 149 and Sections 147 and 148 of the Indian Penal Code, 1860 ('the Penal Code'), and sentenced to suffer imprisonment for life and pay fne of Rs.15,000/- each for the offence punishable under 2/88 CRIAPPEAL-517-2015-J-.DOC Section 302 read with Section 149; rigorous imprisonment for the period of 10 years and fne of Rs.15,000/- each for the offence punishable under Section 307 read with Section 149 and varying periods of imprisonment and fne for the rest of the offences, with default stipulation.
2. The gravamen of indictment against the accused runs as under:
(a) Pale Tarfe Ashtami is a small village of about 100 households in Taluka Roha, District Raigad. Till the year 2011 all the residents were affliated to Peasants and Workers Party ('PWP'). One year prior to the occurrence, 17 families joined Nationalist Congress Party ('NCP'), resulting in a rift amongst the villagers. The majority of the villagers, who were affliated to PWP, gave a call for social boycott of the members of those 17 families, who joined NCP. The latter were not allowed to participate in any marriage and other functions, share the community utensils, and also take part in the annual religious congregation (yatra) of goddess Bhavanimata.
(b) On 7th April, 2012, the palanquin procession of goddess Bhavanimata was to commence from the Bhavanimata temple in between 3.00 to 3.30 pm. The residents of the village, including the members, who were affliated to PWP and NCP, 3/88 CRIAPPEAL-517-2015-J-.DOC had gathered. Since there was an apprehension of law and order issue, a police party, led by the Police Inspector Mr. Suresh Jadhav (PW-18), had already arrived. Mr. Jadhav (PW-18) had called a meeting of the members of the rival political factions near the house of Bhagwan Khandekar, the Police Patil of village Pale. Sudam Khandekar and other seven persons belonging to NCP went for the said meeting. Shashikant Laxman Dant (PW-1), the frst informant, Nathuram Khandekar (the deceased), Nivrutti Khandekar (PW-2), Sudhir Khandekar (PW-3) and Prabhakar Petkar (PW-4) stayed back in the sabhamandap (meeting hall) of Bhavanimata temple.
(c) Accused nos.1 to 17, led by accused no.1 Prakash Khandekar, charged upon the members of the informant party by giving exhortation, "catch, stab and fnish them all" ( dhara, saale bhetlet, tyana bhoskun khalas kara). Accused no.4 Vasant and accused no.3 Arjun caught hold of the deceased Nathuram. Accused no.1 Prakash gave a blow by means of knife on the chest of the deceased. Accused no.12 Giridhar, accused no.13 Sonu, accused no.5 Chandrakant and accused no.14 Dilip caught hold of Sudhir Khandekar (PW-3) and accused no.11 Eknath attempted to commit murder of Sudhir (PW-3) by giving a blow by means of knife on his stomach. Accused no.6 Daulat, 4/88 CRIAPPEAL-517-2015-J-.DOC accused no.15 Somnath, accused no.8 Haresh, accused no.17 Sudhir accosted Nivrutti Khandekar (PW-2) and gave him fst blows and accused no.7 Sunil and accused no.2 Vaibhav attempted to kill Nivrutti (PW-2) by unleashing blows by means of gupti (sword-stick) and knife respectively. Prabhakar Petkar (PW-4) was caught hold of by accused no.10 Krishna and assaulted by accused no.9 Madhukar by means of Taal (cymbals). Accused no.16 Shailesh and Accused no.6 Daulat beat Shashikant Dant, (PW-1), the frst informant, on his head by means of sticks.
(d) Nathuram, Nivrutti and Sudhir sustained grievous injuries. Nathuram was shifted to Rural Hospital, Roha.
Nathuram was pronounced dead. Nivrutti (PW-2) and Sudhir (PW-3) were shifted to Millennium Hospital, Seawood, Navi Mumbai, for better treatment of the grievous injurious sustained by them.
(e) The police party, which was present at the spot, apprehended the assailants. Shashikant Dant (PW-1), the frst informant, lodged a report (Exh-69). Crime was registered vide CR No.40 of 2012 for the offences punishable under Sections 302, 307, 325, 324, 147, 143, 148, 149, 504 and 506 of the Penal Code at Roha Police Station. Investigation commenced. 5/88
CRIAPPEAL-517-2015-J-.DOC
(f) Inquest (Exhibit-118) was held on the body of the deceased Nathuram. It was sent for postmortem examination. The Investigating Offcer again returned to the scene of occurrence and drew panchnama. The samples of the blood which had spilled in the sabhamandap were collected. The weapons i.e. sticks and a cycle chain were seized. Accused nos.1 to 10 came to be arrested. The Investigating Offcer interrogated the witnesses and recorded their statements. Accused no.1 Prakash, accused no.11 Eknath, accused no.2 Vaibhav, accused no.7 Sunil, accused no. 9 Madhukar made discoveries leading to the recoveries of the respective weapons of offence. The postmortem report of the deceased and injury certifcates of the injured as well as accused no.1 Prakash, accused no.11 Eknath and accused no.12 Giridhar were obtained. The samples and the incriminating articles were sent for analysis to Forensic Science Laboratory. CA reports were obtained. After fnding the complicity of accused nos.1 to 17, charge-sheet came to be lodged against the accused in the Court of the jurisdictional Magistrate.
(g) Upon committal, the learned Additional Sessions Judge framed charge for the offences punishable under Sections 302, 307, 324, 504, 506 read with Section 149 and Sections 147 6/88 CRIAPPEAL-517-2015-J-.DOC and 148 of the Penal Code. The accused abjured their guilt and claimed for trial.
(h) At the trial, to substantiate the indictment against the accused the prosecution examined 18 witnesses. The ocular account consists of the testimony of Shashikant Dant (PW-1); the frst informant, Nivrutti Khandekar (PW-2), Sudhir Khandekar (PW-3) and Prabhakar Petkar (PW-4); the injured witnesses, and Sachin Chaure (PW-5); the then Police Naik, who claimed to be present in the sabhamandap at the time of the occurrence. The medical evidence is formed by the testimony of Dr. Nishith Dhruv (PW-7), who runs Amrita Nursing Home at Bhuvaneshwar and had examined Nivrutti (PW-2) on the date of the occurrence, Dr. Uday Tambe (PW-8), the visiting surgeon at Millennium Hospital, Panvel, where Nivrutti (PW-2) and Sudhir (PW-3) were operated upon, and Dr. Anandkumar Awdhesh Narayan Singh (PW-9), the Medical Offcer posted at Rural Hospital, Roha, who had initially examined the deceased Nathuram, Sudhir Khandekar (PW-3), Prabhkar Petkar (PW-4) and Shashikant Dant (PW-1) and had conducted autopsy on the body of the deceased Nathuram, and had also examined accused no. 1 Prakash, accused no.11 Eknath and accused no.12 Giridhar on 8th April, 2012. The seizure of incriminating 7/88 CRIAPPEAL-517-2015-J-.DOC articles and the recovery of weapons of offence pursuant to the discoveries made by the accused were sought to be established by examining Vilas Khandekar (PW-10), Hari Kadam (PW-11), Ganesh More (PW-12), the public witnesses, who did not support the prosecution earnestly. The police personnel Maruti Mhatre (PW-15), Siddharth Shinde (PW-16), Ashok Gaikwad (PW-17) and Suresh Jdhav (PW-18), the Investigating Offcer, furnished the details of investigation.
(i) After the closure of the prosecution case, the accused were examined under Section 313 of the Code of Criminal Procedure, 1973 ('the Code'). The accused did not lead any evidence in their defence which primarily consists of denial and false implication on account of political rivalry. Accused no.17 Sudhir Khandekar has endeavoured to establish defence of alibi by placing reliance on the testimony of Dr. Umakant Jadhav (PW-6), who runs a hospital at Pale. Accused no.16 Shailesh has also claimed that he was not present at village Pale at the time of occurrence. The general tenor of the defence is that the scuffe broke out when the informant party forcibly entered into the Bhavanimata temple despite an understanding arrived at between the parties that they would have the darshan of the palanquin when it reached in front of their respective 8/88 CRIAPPEAL-517-2015-J-.DOC homes. There was, thus, neither an unlawful assembly nor the alleged offences were committed in prosecution of the common object of the unlawful assembly.
(j) After evaluation of the evidence and material on record, the learned Additional Sessions Judge was persuaded to enter a fnding that the accused were the members of the unlawful assembly, the common object of which was to commit the murder of the deceased and also attempt to commit the murder of Nivrutti (PW-2) and Sudhir (PW-3) and cause hurt to the rest of the members of the informant party, and the offences of murder, attempt to commit murder, voluntarily causing hurt, intentional insult and criminal intimidation were committed in prosecution of the said common object of the unlawful assembly. The accused also committed rioting armed with deadly weapons. The accused thus came to be convicted and sentenced, as indicated above.
3. Being aggrieved by and dissatisfed with the impugned judgment of conviction and order of sentence, the accused are in appeal.
4. We have heard Mr. Shirish Gupte, the learned Senior Counsel and Mr. Sudeep Pasbola, for the appellants and Ms. P. P. Shinde, the learned APP for the State, at considerable length. We have also heard Ms. Kuthikrishnan, for respondent nos.2 to4. 9/88
CRIAPPEAL-517-2015-J-.DOC With the assistance of the learned Counsels for the parties we have minutely perused the evidence and material on record.
5. A multi-fold challenge was mounted on behalf of the appellants to the impugned judgment. At the outset, it was urged that the very setting of the law in motion is shrouded in mystery. The evidence led by the prosecution throws a serious doubt over the time at which the crime was registered. If the frst informant is to be believed, the FIR was recorded at about 11.00 pm. on 7th April, 2012. In contrast, the FIR (Exhibit-69) is shown to have been registered at 5.30 pm. This inconsistency dismantles the substratum of the prosecution case. Secondly, there is an irreconcilable inconsistency regarding the exact place where the deceased and the injured were allegedly assaulted. In the least, the prosecution version presents two scenes of occurrence. One, the gabhara (sanctum sanatorium) of Bhavanimata temple. Two, the sabhamandap (meeting hall). Having regard to the distance between these two places, this inconsistency bears upon the opportunity for the witnesses to observe the occurrence and thereby dents the prosecution. Thirdly, the testimony of Nivrutti (PW-2) and Sudhir (PW-3), the injured eye witnesses, does not merit implicit reliance. On the one hand, their testimony bristles with material improvements 10/88 CRIAPPEAL-517-2015-J-.DOC and omissions. On the other hand, there is both inordinate and unexplained delay in recording their statements under Section 161 of the Criminal Procedure Code, 1973 ('the Code'), which impairs the veracity of their claim. In the backdrop of the inimical relations, on account of political affliation, this delay assumes critical signifcance, urged the learned Senior Counsel for the accused. Fourthly, the evidence of Sachin Chaure (PW-
5), the Police Naik, who can be said to be the only independent witness, is unworthy of credence. Fifthly, the discoveries allegedly made by the accused leading to the recovery of the weapons of offence are fraught with infrmities. It defes comprehension that when the accused were immediately apprehended, they could conceal the weapons at the places (from where those weapons were allegedly recovered) and again come back to the sabhamandap (meeting hall) where they were initially detained. The circumstantial evidence, according to the learned Senior Counsel for the accused, is extremely fragile and unsatisfactory. Sixthly, the evidence led by the prosecution betrays an attempt to fabricate the record, especially the injury certifcates, to suit the prosecution case. Lastly, it was urged with a degree of vehemence that, even if the evidence is taken at par, an inference of formation of an unlawful assembly and commission of the offences in prosecution of the object of the 11/88 CRIAPPEAL-517-2015-J-.DOC unlawful assembly cannot be drawn. The learned Additional Sessions Judge, according to the learned Senior Counsel for the accused, committed a grave error in roping in all the accused by invoking the principle of constructive criminality. This legal faw vitiated the entire reasoning and fnding of the learned Additional Sessions Judge.
6. In opposition to this, Ms. Shinde, the learned APP for the State stoutly supported the impugned judgment. It was submitted that the testimony of Nivrutti (PW-2) and Sudhir (PW-3), who were critically injured in the occurrence, is worthy of implicit reliance. Their evidence is amply corroborated by the evidence of Prabhakar Petkar (PW-4), again an injured witness, and Sachin Chaure (PW-5). The medical evidence lends requisite support. From the tenor of the defence, it is evident that, the accused, who were then affliated to PWP, had a grudge against the informant party for having defected to NCP and were bent on restraining the informant party from taking part in the palanquin procession. This furnished the strong motive to mount murderous assault upon the deceased and the injured. Viewed through this prism, according to the learned APP, the guilt of the accused can be said to have been established beyond the pale of controversy. The minor omissions and 12/88 CRIAPPEAL-517-2015-J-.DOC contradictions in the evidence of the prosecution witnesses and the lapses in investigation, including the aspect of delay in recording the statements of Nivrutti (PW-2) and Sudhir (PW-3) under Section 161 of the Code, do not detract materially from the prosecution case, urged the learned APP. On the legal premise, it was submitted that an assembly can turn unlawful at the spur of moment. Thus, the learned Additional Sessions Judge was within his rights in recording a fnding that the accused were the members of an unlawful assembly and committed the offences in prosecution of the common object of the unlawful assembly, submitted the learned APP.
7. A brief resume of the evidence may be apposite to appreciate the aforesaid submissions in a correct perspective.
8. Shashikant Dant (PW-1), the frst informant, through whom the prosecution endeavoured to unfurl its case, did not support the prosecution. He deposed that on the day of occurrence while he was about to enter the sabhamandap (meeting hall) of the temple, he was assaulted on head by somebody with some object. He availed treatment at the Rural Hospital, Roha, where the police obtained his signature on the report (Exhibit-69), to the contents of which Shashikant Dant (PW-1) did not subscribe unreservedly. The testimony of 13/88 CRIAPPEAL-517-2015-J-.DOC Shashikant Dant (PW-1) revealed that the accused party, which was then affliated to PWP, switched over to NCP on 23 rd February, 2013 and now both the groups are affliated to NCP. Though Shashiknat Dant (PW-1) denied the suggestion that on account of the said political move, he did not support the prosecution case, yet the said development cannot be said to be totally inconsequential.
9. Nivrutti (PW-2), the injured, informed the Court that on the day of occurrence at about 3.30 pm., he had gone to the temple of Bhavanimata as the palanquin procession was to begin. Sharad, Shekhar, Umaji, Suresh Khandekar, Dashrath Khandekar, Sandip Khandekar and Sudam Khandekar of his party (NCP) and the accused were present in the temple. Police Inspector Mr. Jadhav called the members of NCP for a meeting near the house of the Police Patil. Sharad, Shekhar, Umaji, Dashrath, Sandip, Sudam and Suresh, the members of NCP, went for the said meeting. He, Shashikant Dant (PW-1), Nathuram (the deceased), Prabhakar Petkar (PW-4), Sudhir (PW-
3) and rest stayed back in the sabhamandap. The accused gave the exhortation, "catch, stab and fnish them all" ( dhara, saale bhetlet, tyana bhoskun khalas kara). Accused no.3 Arjun, accused no.4 Vasant and accused no.15 Somnath caught hold 14/88 CRIAPPEAL-517-2015-J-.DOC of deceased Nathuram. Accused no.1 Prakash gave a blow by means of knife on the chest of the deceased.
10. Nivrutti (PW-2) claimed to have tried to intervene. Thereupon accused no.6 Daulat, accused no.5 Somnath, accused no.17 Sudhir, accused no.10 Krishna, accused no.8 Haresh caught hold of him whereas accused no.7 gave a blow by means of gupti (sword-stick) on his stomach and accused no.2 Vaibhav gave a blow by means of a pointed weapon near his right armpit. Nivrutti (PW-2) claimed to have sustained grievous injuries. Mangesh Khandekar shifted him to Dhruv Hospital. Nivrutti (PW-2) deposed that he lost consciousness while he was admitted in Dhruv hospital and regained the consciousness at Millennium Hospital, Seawood.
11. The aforesaid version of Nivrutti (PW-2), especially on the aspect of the assault upon the deceased, was sought to be corroborated by Sudhir (PW-3), another injured. After apprising the Court about the enmity, which had developed over the informant party joining the NCP, Sudhir (PW-3), on the core of the occurrence, informed the Court that while few members of NCP had gone for a meeting which was convened by P.I. Jadhav, and they were in the sabhamandap (meeting hall), the accused gave the exhortation to kill the members of the informant party. 15/88
CRIAPPEAL-517-2015-J-.DOC Accused no.4 Vasant, accused no.3 Arjun and accused no.15 Somnath caught of the deceased Nathuram and accused no.1 Prakash stabbed the deceased in the chest by means of knife (Article-8). Sudhir (PW-3) claimed to have attempted to restrain accused no.1 Prakash. Thereupon accused no.12 Giridhar, accused no.14 Dilip, accused no.15 Chandrakant caught hold of him and accused no.11 Eknath assaulted him by means of knife, on his stomach. His intestines came out. He sat on the ground. Shubhangi and Sharad Dant shifted him to Rural Hospital, Roha, wherefrom he was taken to Millennium Hospital, Seawood.
12. Prabhakar Petkar (PW-4) sought to lend support to the testimony of Sudhir (PW-3). Prabhakar (PW-4) informed the Court about the circumstances in which the accused party had imposed social boycott on the informant party. At the time of occurrence, Prabhakar (PW-4) claimed to have been in the sabhamandap alongwith the deceased Nathuram, Nivrutti (PW-2), Sudhir (PW-3) and Shashikant (PW-1). He was in unison with Nivrutti (PW-2) and Sudhir (PW-3) on the point that the accused party raised a cry to eliminate them. Prabhakar (PW-4) wants the Court to believe that Sudhir (PW-3) was caught hold of by accused no.14 Dilip, accused no.15 16/88 CRIAPPEAL-517-2015-J-.DOC Chandrakant, accused no.13 Sonu and accused no.12 Giridhar and accused no.11 Eknath assaulted Sudhir (PW-3). The accused pushed him also. Accused no.10 Krishna caught hold of him and accused no.9 Madhukar gave a blow by means of taal (cymbals) on his head. He claimed to have sustained injury. He was shifted to Rural Hospital, Roha.
13. Sachin Chaure (PW-5), the Police Naik, then attached to Roha Police Station, informed the Court that he was part of the police party which had been stationed at Bhavanimata temple. In between 3.00 to 3.30 pm. the villagers gathered at the temple. He was present in the sabhamandap of the temple. Sachin (PW-5) claimed to have heard a hue and cry as "beat, beat"
(marle, marle) from the gabhara ( sanctum sanctorium) of the temple. He and P. I. Jadhav rushed to rescue. Two persons had caught hold of deceased Nathuram by his hand. Accused no.1 Prakash inficted blow by means of knife (Article-8) on the chest of the deceased. They raised shouts, "catch, catch" ( dhara, dhara). Accused no.1 Prakash fed away. Sachin (PW-5) claimed to have given an unsuccessful chase. Sachin (PW-5) further informed that the mob was dispersed and the injured were shifted to hospital for medial treatment. Sachin (PW-5) 17/88 CRIAPPEAL-517-2015-J-.DOC expressed his inability to identify those two persons who had caught hold of the deceased when he was assaulted.
14. At this juncture, recourse to the medical evidence, may be advantageous. To begin with, the testimony of Dr. Anandkumar Singh (PW-9). It is in the evidence of Dr. Anandkumar (PW-9) that on the day of occurrence while he was posted as Medical Offcer at Rural Hospital, Roha at about 4.00 pm. the deceased Nathuram and Sudhir (PW-3) were brought at the hospital. The condition of the deceased was critical. He was gasping. He noticed an injury on the left side of the chest extending from 4 th to 6th intercostal region, just below the nipple. The deceased suffered cardiac arrest and was declared dead.
15. Dr. Anandkumar (PW-9) claimed to have conducted postmortem examination on the body of the deceased and found following two external injuries:
"A) Obliquely placed in right side of chest extending from 4 th to 6th intercostal region just below nipple (left).
Size - 8 cm. X 4 cm. X 15 cm.
wound is tailing into abrasion below.
B) Obliquely placed on left side on back in 5 th to 6th intercostal space.
Size - 5 cm. X 2 cm. X 2 cm."
16. On internal examination, Dr. Anandkumar (PW-9) claimed to have noticed that the 5th and 6th ribs were incised. The 18/88 CRIAPPEAL-517-2015-J-.DOC underlying pleura was found punctured with blood in pleural cavity. There was lacerated wound on the middle lobe of lung, single admeasuring 6 cm. in length. The right ventricle was found punctured with single injury measuring 3 cm. Inter vernricluar septum was found punctured. In the opinion of Dr. Anandkumar (PW-9) the probable cause of death was cardiac arrest due to cardiac tamponade due to stab wound involving heart and prericardium. Postmortem report (Exhibit-106) and the advance cause of death certifcate (Exhibit-107) were proved in his evidence. Dr. Anandkumar (PW-9) further opined that the injuries were antemortem and were possible by the weapon i.e. knife (Article-8).
17. It would be imperative to note that there is not much controversy over the fact that deceased Nathuram met a homicidal death. The nature of injuries, noted by the autopsy surgeon, indicate that the deceased had met a homicidal death. The endeavour of the accused during the course of the cross- examination of the prosecution witnesses and in their examination under Section 313 of the Code was to demonstrate that the incident did not occur in the manner alleged by the prosecution and that though the deceased met a homicidal death in the course of the said occurrence yet prosecution did 19/88 CRIAPPEAL-517-2015-J-.DOC not succeed in establishing the authorship of the death. Thus, the fact that the deceased met a homicidal death can be said to have been established beyond the pale of controversy.
18. Dr. Anandkumar (PW-9) claimed to have examined Sudhir (PW-3) as well. Sudhir (PW-3) had sustained grievous stab wound on the left lower abdomen. The size of the injury was 12 x 3 cm.. Intestine was protruding out. Wound was gathered with normal saline gauze, and Sudhir (PW-3) was referred to a higher medical centre for further medical and surgical treatment.
19. Dr. Anandkumar (PW-9) further examined Prabhakar Petkar (PW-4) and noticed a CLW on temporal region measuring 4 x 5 cm. It was a simple injury. It might have been caused by hard and blunt object. In the opinion of Dr. Anandkumar the said injury was possible by the weapon i.e. taal (cymbals) (Article-12).
20. Shashikant Dant (PW-1) was also examined by Dr. Anandkumar (PW-9) at about 5.15 pm. He was brought with a history of alleged assault. On examination, Dr. Anandkumar claimed to have found a CLW on temporo frontal region measuring 2.5 x 2 cm. It might have been caused by a hard and 20/88 CRIAPPEAL-517-2015-J-.DOC blunt object. In his opinion the said injury was possible with the help of any of the sticks (Article nos.2 to 4 and 13).
21. Nivrutti (PW-2) was initially shifted to Amrita Nursing Home, Bhuvaneshwar. Dr. Nishith Dhruv (PW-7) testifed to the fact that he had examined Nivrutti (PW-2), who was brought with a history of alleged stab with knife/sura and found following injuries:
"1. Roughly D-shaped wound in the hypochondrium about 3 cm. X 1 cm. X peritoneum-deep with omentum pouti out.
2. Small CLW about 0.2 cm. X 0.2 cm. peritoneum deep also with omentum poutin out and covering in the wound.
3. Wound in right Axilla just behind the anterior axillallry fold about 2 cm. X 0.5 cm. deep.
4. The wound on left in fore arm on the ventral aspect 5 cm.
proximal to the writ joint on the unlar side about 0.5 cm. X 0.1 by skin deep."
22. In the opinion of Dr. Nishith (PW-7), injury no.1 was caused due to penetration of edged weapon whereas injury no.2 was the exit wound. Dr. Nishith endeavoured to clarify that though injury nos.1 to 3 were caused by an edged weapon, it was incorrectly mentioned in the injury certifcate (Exhibit-84) that the injuries were caused by a blunt and heavy object due to inadvertent oversight. Dr. Nishith (PW-7) claimed to have closed those injuries by stapling.
23. Dr. Uday Tambe (PW-8), the then visiting surgeon at Millennium Hospital, Panvel, informed the Court that on 21/88 CRIAPPEAL-517-2015-J-.DOC 7th April, 2012, he was called at Millennium Hospital for examination of two patients, who had sustained stab wounds, in between 10.15 to 11.00 pm. Nivrutti (PW-2) and Sudhir (PW-3) were then admitted in ICU. They both narrated history of stabbing. On the person of Sudhir (PW-3), Dr. Uday Tambe (PW-8) found injury on lower abdomen below navel. Immediately surgery was performed. In the surgery the affected part of the intestine was removed. The said injury was possible by knife (Article-9). Dr. Tambe opined that the said injury was of serious nature and if not treated immediately it would have resulted in death within a few hours.
24. On the person of Nivrutti (PW-2) he claimed to have found omentum paouting from the abdomen. Two liters of blood was found in the abdominal cavity with multiple perforation on the jejunum. Surgery was performed. The said injury was possible by means of gupti (sword-stick) (Article-11) and the injury on the right side of the chest was possible due to assault by means of knife (Article-10).
25. The medical evidence, especially on the aspect of the grievous injuries sustained by Nivrutti (PW-2) and Sudhir (PW-
3), could not be impeached in the cross-examination. The fatal nature of the injuries, deposed to by the medical offcers 22/88 CRIAPPEAL-517-2015-J-.DOC especially Dr. Tambe (PW-8), justifes an inference that the Nivrutti (PW-2) and Sudhir (PW-3) had sustained grievous injuries which endangered their life. Likewise, the claim of Prabhakar (PW-4) and Shashikant Dant (PW-1) of having sustained injuries in the course of the said occurrence at Bhavanimata temple, fnds necessary support in the medical evidence. Thus, an inference can be safely drawn that the prosecution has succeeded in establishing that Nivrutti (PW-2) and Sudhir (PW-3) sustained grievous injuries and Prabhakar (PW-4) and Shashikant Dant (PW-1) suffered simple injuries in the course of the occurrence at Bhavanimata temple, on the day of occurrence.
26. This propels us to the question of the authorship of the homicidal death of the deceased and the injuries sustained by abovenamed prosecution witnesses. Whether the death and the assault were caused in prosecution of the common object of the unlawful assembly? This question begs an answer to another pertinent question, was the assembly at Bhavanimata temple unlawful at any point of time? Whether the accused-appellants were the members of the unlawful assembly and could the accused have been convicted by invoking the provisions contained in Section 149 of the Penal Code?
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27. Mr. Gupte, the learned Senior Counsel, urged that the prosecution has made an endeavour to manipulate the time at which the FIR (Exhibit-69) was lodged by Shashikant Dant (PW-1). Inviting the attention of the Court to the testimony of the frst informant that his signature was obtained on a report at about 11.00 pm., while he was admitted in Rural Hospital, Roha, it was strenuously urged that the claim of the prosecution that the FIR was recorded and registered at 5.30 pm. is belied. This submission is required to be appreciated in the backdrop of the fact that Shashikant Dant (PW-1) did not support the prosecution. His testimony was discredited during the course of the cross-examination on behalf of the prosecution. It is stated that politics makes strange bedfellows. It was elicited in the cross-examination of Shashikant Dant (PW-1) that the accused party switched over to NCP on 23 rd February, 2013 and since then they all are working for NCP. In this view of the matter, the accused cannot draw much mileage from the assertion of Shashikant Dant (PW-1) that his signature was obtained on the report at about 11.00 pm. while he was admitted in the hospital.
28. As a second limb of the aforesaid submission, the learned Senior Counsel urged that the question as to whether Shashikant Dant (PW-1) was the frst informant is itself 24/88 CRIAPPEAL-517-2015-J-.DOC shrouded in mystery. To this end, the attention of the Court was invited to the scene of occurrence panchnama (Exhibit-
165), wherein it was, inter alia, recorded that the scene of occurrence was pointed out by Shekhar Dant, who had lodged report of the occurrence. This statement in the scene of occurrence panchnama (Exhibit-165), which was allegedly drawn on the very day of occurrence in between 6.30 pm. to 7.15 pm., according to the learned Senior Counsel, throws a cloud of doubt over the claim of the prosecution that crime was registered on the strength of the report lodged by Shashikant Dant (PW-1). In fact, Suresh Jadhav (PW-18), Investigating Offcer, on his part, tried to explain the inconsistency by affrming that the scene of occurrence was shown by Shashikant Dant (PW-1). However, the name of Shekhar Dant, was wrongly mentioned in the place of Shashikant Dant (PW-1), the frst informant. It was brought out in his cross-examination that despite having noticed the said mistake he did not make amends.
29. The aforesaid explanation, in our view, is justifable. Indisputably Shashikant Dant (PW-1) claimed to have sustained injury in the very same occurrence. There is medical evidence which lends credence to the claim of Shashikant Dant (PW-1). 25/88
CRIAPPEAL-517-2015-J-.DOC The statement in the scene of occurrence (Exhibit-165) that the scene of occurrence was pointed out by Shekhar Dant, who was designated as frst informant, in the circumstances, does not throw a cloud of doubt over the identity of the frst informant.
30. It would be contextually relevant to note that Ashok Gaikwad (PW-17), the then SHO, Roha Police Station, has put oath behind the assertion that on the day of occurrence at about 4.00 pm. Shashikant Dant (PW-1) had come to Roha police station and gave report (Exhibit-69), which was reduced into writing by him. Ashok Gaikwad (PW-17) claimed to have recorded the contents of the report as per the narration of Shashikant Dant (PW-1). The extract of station diary entry (Exhibit-161) vouches for the registration of the FIR at about 5.30 pm. Moreover, there are contemporaneous documents like the inquest (Exhibit-118) and the scene of occurrence panchnama (Exhibit-165), which lend support to the prosecution case that the crime was registered at 5.30 pm. Thus, the challenge to the prosecution based on ante timing of the FIR does not merit countenance.
31. A more serious criticism was advanced regarding the place of actual assault on the deceased. An endeavour was made to draw home the point that the prosecution witnesses shifted the 26/88 CRIAPPEAL-517-2015-J-.DOC scene of occurrence to suit the prosecution case. As noted above, the injured witnesses have consistently deposed that the incident occurred in the sabhamandap (meeting hall). This version of the injured witnesses was sought to be discredited by relying upon the testimony of Sachin Chaure (PW-5), the then Police Naik. Special emphasis was laid on the claim of Sachin Chaure (PW-5) that he had heard hue and cry as, " marle marle"
('beat, beat'), from the gabhara (sanctum sanctorium) of Bhavanimata temple. Though Sachin Chaure (PW-5) endeavoured to assert that the incident took place in sabhamandap, yet an omission was elicited in the cross-
examination of Sachin Chaure (PW-5) to the effect that his statement before the police does not fnd mention of the fact that the incident occurred in sabhamandap (meeting hall).
32. Mr. Gupte urged with tenacity that in the light of the situation at the Bhavanimata temple delineated in the site plan (Exhibit-71), this discrepancy in the scene of occurrence dismantles the very substratum of the prosecution case. The gabhara (sanctum sanctorium) is located at the rear end of the temple, whereas the sabhamandap (meeting hall) is located in the front portion. There are structures in between the sabhamandap (meeting hall) and gabhara (sanctum 27/88 CRIAPPEAL-517-2015-J-.DOC sanctorium). The witnesses could not have noticed the incident which occurred in the gabhara (sanctum sanctorium) from the sabhamandap (meeting hall).
33. The site plan (Exhibit-71) reveals that the temple is situated East-West. In the front portion towards east there is a space of about 40 ft. X 40 ft. covered with tin roof. The sanctum sanctorium is on the western side. The distance between the sanctum sanctorium and the steps leading to the main entry to the temple is about 30 ft. The blood stains were found in the frst part of the sabhamandap (meeting hall). The length of the temple premises is about 50 ft.
34. In the context of the situation delineated in the site plan (Exhibit-71), it was elicited in the cross-examination of Nivrutti (PW-2) that in the front of the gabhara (sanctum sanctorium) there was enclosed portion to which there are two windows and three doors, which are on the northern, eastern and southern side. He conceded that in front of the gabhara (sanctum sanctorium) decoration of the palanquin takes place. The sabhamandap (meeting hall) is located in front of the enclosed portion of the temple, in two parts. Nivrutti (PW-2) asserted that on the day of occurrence he did not enter gabhara (sanctum sanctorium) or the enclosed portion adjacent to the 28/88 CRIAPPEAL-517-2015-J-.DOC gabhara (sanctum sanctorium). Nivrutti (PW-2) affrmed that he and the deceased Nathuram were assaulted in the eastern portion of the sabhamandap (meeting hall). He conceded that it would be wrong to state that the deceased was assaulted in gabhara (sanctum sanctorium),
35. Contrasting the aforesaid claim of Nivrutti (PW-2) and other injured witnesses with that of the Sachin Chaure (PW-5), especially the assertion that he had heard the cry emanating from the gabhara (sanctum sanctorium) of the temple, it was strenuously urged that the incident did not take place in the sabhamandap (meeting hall), as claimed by the prosecution witnesses. The submission appears attractive at the frst blush. However, when subjected to close scrutiny, the submission does not hold much ground.
36. Indisputably the villagers had gathered in the sabhamandap (meeting hall) and the gabhara (sanctum sanctorium) of the Bhavanimata temple. Temple was a crowded place. Sachin (PW-5) affrmed that at the time of the occurrence the police party was in the North-East corner of the sabhamandap (meeting hall). The gabhara (sanctum sanctorium) was at a distance of about 70 ft. from the said spot. The situation is thus required to be appreciated in the light of 29/88 CRIAPPEAL-517-2015-J-.DOC the fact that in a space of hardly 100 ft. in length, there were more than 150 persons. The palanquin had still not left the temple. Preparations were on. When the assault was unleashed, it was but natural for the persons, who had gathered, to raise alarm. The assertion of Sachin Chaure (PW-5) that he heard the alarm emanating from the gabhara (sanctum sanctorium), in the totality of the circumstances, does not justify the only inference that the assault was frst mounted inside the gabhara (sanctum sanctorium).
37. It is imperative to note that the members of the PWP were averse to the members of NCP taking part in the procession of palanquin. The accused party was resisting the entry of the informant party into the temple and their participation in the palanquin procession. It does not stand to reason that with such an animosity and hostility towards the informant party, the members of the informant party would have been allowed to enter gabhara (sanctum sanctorium). In any event, having regard to the distance between the sabhamandap (meeting hall) and gabhara (sanctum sanctorium), it would be taking a very unrealistic view of the matter to come to the conclusion that the witnesses had no opportunity to observe the incident, much less, draw an inference that the incident occurred in gabhara 30/88 CRIAPPEAL-517-2015-J-.DOC (sanctum sanctorium). There is no material to indicate that any marks of scuffe or blood stains were found in the gabhara (sanctum sanctorium). The omission elicited in the cross- examination of Sachin Chaure (PW-5) that that incident took place in sabhamandap (meeting hall), in the aforesaid backdrop, does not erode the credibility of the evidence of Sachin Chaure (PW-5). We are, thus, not persuaded to accede to the submission on behalf of the accused that there is an element of uncertainty about the exact place where the deceased and the injured were assaulted.
38. The prosecution was also assailed on the count that the prosecution suppressed the genesis of the occurrence. The edifce of this submission was built on the premise that the prosecution did not offer any explanation, much less justifable one, as regards the injuries on the person of the accused. To this end, reliance was placed on the evidence of Dr. Anandkumar Singh (PW-9).
39. It is in the evidence of Dr. Anandkumar (PW-9) that on 8 th April, 2012, he had examined accused no.1 Prakash and found an abrasion admeasuring 3 X 4 cm. on the back of his neck. Dr. Anandkumar (PW-9) claimed to have examined accused no.11 Eknath and found two clean incised wounds on distal 31/88 CRIAPPEAL-517-2015-J-.DOC phalanx of right thumb on the palmar aspect. On the examination of accused no.12 Giridhar, Dr. Anandkumar (PW-9) claimed to have found a bruise on right side lower back admeasuring 15 X 4 cm. and another abrasion on the left elbow admeasuring 3 X 2 cm. The Medico-Legal Certifcates of accused no.1 Prakash (Exhibit-108), accused no.11 Eknath (Exhibit-109) and accused no.12 Giridhar (Exhibit-110) came to be proved in the evidence of Dr. Anandkumar (PW-9). He opined that the injuries on the person of accused no.1 Prakash and accused no.12 Giridhar were possible while running after scuffe and the injury on the thumb of accused no.11 Eknath was possible while giving a blow by means of sura/knife (Article-9). All these injuries were suffered within 24 to 36 hours of the examination.
40. Mr. Gupte, the learned Senior Counsel urged that in the backdrop of the aforesaid medical evidence which establishes beyond the pale of controversy the fact that three of the accused namely accused no.1 Prakash, accused no.11 Eknath and accused no.12 Giridhar had sustained injuries in the course of the same occurrence, the prosecution witnesses, who had the audicity to feign ignorance about the injuries sustained by the accused, are unworthy of credence. Nivrutti (PW-2) asserted 32/88 CRIAPPEAL-517-2015-J-.DOC that he had not seen as to whether the abovenamed accused had sustained injuries. Sudhir (PW-3) also conceded in the cross-examination in no uncertain terms that he had not seen as to whether anyone had assaulted accused no.12 Giridhar nor had he seen the injuries on the person of accused no.12 Giridhar. He had not known as to whether anyone had assaulted accused no.1 Prakash and accused no.11 Eknath and whether they had sustained any injuries. Prabhakar Petkar (PW-4) also expressed his inability to state as to whether anybody had beaten up accused no.11 Eknath and accused no.12 Giridhar and how they sustained injuries.
41. The steadfast refusal of the prosecution witnesses to accede to the position that the accused had also sustained injuries, according to the learned Senior Counsel, leads to an inescapable inference that the prosecution witnesses are not stating the truth on a most vital aspect of the matter. What exacerbates the situation, according to Mr. Gupte, was the candor with which Suresh Jadhav (PW-18), the Investigating Offcer, deposed that despite having noticed the injuries on the person of accused no.1 Prakash, accused no.11 Eknath and accused no.12 Giridhar, he did not investigate as to how the accused sustained those injuries. Thus, the non-explanation of 33/88 CRIAPPEAL-517-2015-J-.DOC the injuries on the person of the accused is fatal to the prosecution, urged Mr. Gupte.
42. In order to lend support to the aforesaid submission a strong reliance was placed on the judgment of the Supreme Court in the case of Ram Narain and others vs. State of Uttar Pradesh1, wherein it was observed that the absence of any explanation with regard to the injuries on the accused is certainly an infrmity in the case of the prosecution which cannot be lost sight of but it must be remembered that generally the witnesses are anxious to suppress any injury which might have been inficted by anyone from the complainant party. In the facts of the said case, it was further observed that the very fact that the eye witnesses therein did not mention anything about the injuries found on the person of Ramnarayan (accused therein) makes it unsafe to rely on their evidence completely unless independent corroboration is available.
43. The nature of the obligation on the prosecution to explain the injuries on the person of the accused, which appear to have been sustained in the same occurrence, and the consequences which follow the failure of the prosecution to explain those injuries, were illuminatingly postulated by the Supreme Court 11973 SCC (Cri.) 241.
34/88
CRIAPPEAL-517-2015-J-.DOC in the case of Lakshmi Singh and others vs. State of Bihar, 2 in the following words:
"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 altercation is a very important circumstance from which the Court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. AIR 1968 SC 1281 and AIR 1975 SC 1674.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."
44. It is trite that the ground of non-explanation of injuries on the person of the accused cannot be resorted to as a ritualistic formula to throw the prosecution overboard. The nature of the injuries on the person of the accused is of critical signifcance. If the injuries are of minor and superfcial nature, the prosecution is not enjoined to offer explanation in respect of those injuries. Conversely, if the injuries sustained in the course of same occurrence by the accused are of serious nature the prosecution is expected to offer a plausible explanation. 2AIR 1976 Supreme Court 2263.
35/88
CRIAPPEAL-517-2015-J-.DOC Non-explanation of injuries assumes signifcance where the evidence is of partisan and interested nature. If the evidence, on the other hand, is consistent, inspiring and disinterested the non-explanation of the injuries on the person of the accused does not impair the prosecution. Moreover, the non-explanation of injuries assumes importance where the defence offers an explanation which competes in probability with that of the prosecution. In that eventuality, a reasonable doubt is raised about the veracity of the prosecution.
45. A proftable reference in this context can be made to a Three Bench judgment of the Supreme Court in the case of Takhaji Hiraji vs. Thakore Kubersingh Chamansingh & ors. 3, wherein the Supreme Court expounded the legal position. The observations in paragraph no.17 are instructive: they read as under:
"17. The frst question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajendra Singh & Ors. Vs. State of Bihar, (2000) 4 SCC 298, Ram Sunder Yadav & Ors. Vs. State of Bihar, (1998) 7 SCC 365 and Viayee Singh & Ors. Vs. State of U.P., (1990) 3 SCC 190, all 3-Judges Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non- explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfed of the existence of two conditions : (i) that the injury on the person of the 3(2001) 6 SCC 145.36/88
CRIAPPEAL-517-2015-J-.DOC accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater signifcance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear cogent and credit worthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case."
(emphasis supplied)
46. On the aforesaid touchstone, reverting to the facts of the case, in our considered view, the ground of non-explanation of the injuries on the person of the accused falls fat on all counts. Firstly, the injuries are of simple nature. None of the accused had suffered any grievous injury on any vital parts of the body. Secondly, there was a crowd and the injuries found on the person of accused no.1 Prakash and accused no.12 Giridhar were quite possible in a jostling or scuffe. Thirdly, apart from a general explanation that a scuffe ensued all of a sudden, the accused have not pressed into service a version which competes in probability with that of the prosecution. It was not suggested to any of the prosecution witnesses that the informant party was the aggressor, any of its members was armed with a weapon and that the members of the informant party assaulted accused no.1 Prakash, accused no.11 Eknath and accused no.12 Giridhar. Thus, the mere fact that simple abrasion and bruises 37/88 CRIAPPEAL-517-2015-J-.DOC were found on the persons of the accused for which the prosecution witnesses could not account for, is not a sturdy enough factor to sustain an inference that the prosecution has suppressed the genesis of the occurrence. Nor the injured witnesses can be discredited on that count.
47. It was next urged that the evidence of Nivruttti (PW-2) and Sudhir (PW-3), the star witnesses for the prosecution, does not merit reliance as their statements under Section 161 of the Code were recorded belatedly. Nivrutti (PW-2) and Sudhir (PW-3) claimed that they were admitted in Millennium Hospital on 7 th April, 2012. However, their statements were frstly recorded on 23rd April, 2012, followed by supplementary statements on 25 th May, 2012 and the statements before the learned Magistrate under Section 164 of the Code, on 20th June 2012. This delay of more than 15 days in recording the statements of Nivrutti (PW-
2) and Sudhir (PW-3), when the said witnesses were allegedly critically injured, is inexplicable. Moreover, the half-hearted endeavor of the prosecution to account for the delay on the premise that the witnesses were not in a condition to give the statement is belied by the evidence of prosecution witnesses especially Dr. Tambe (PW-8). In the light of the inimical relationship between the parties, which had its genesis in 38/88 CRIAPPEAL-517-2015-J-.DOC political rivalry, this inordinate and unexplained delay, according to the learned Senior Counsel, cannot be said to be inconsequential or immaterial. This delay erodes the credibility of their testimony, urged Mr. Gupte.
48. In order to bolster up the aforesaid submission, reliance was sought to be placed on a judgment of the Supreme Court in the case of Maiku and others vs. State of U.P4.
49. By a catena of judgments, it is well settled that mere delay in recoding the statements of the witnesses, by itself, does not render the prosecution case suspect. What impairs the prosecution is inordinate and unexplained delay. What has to be seen is whether there were concomitant circumstances which indicate that the Investigating Offcer was deliberately marking his time so as to determine the shape to be given to the prosecution case. Thus, it is held that the Investigating Offcer should be specifcally asked about the causes for delay in recording the statements of the witnesses and provided with an opportunity to offer explanation. If the Investigating is not specifcally confronted with the aspect of delay, the defence cannot draw any mileage from the fact of mere delay. 41989 Supp (1) SCC 25.
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50. A useful reference in this context can be made to the judgment of the Supreme Court in the case of State of U. P. vs. Satish,5 wherein the Supreme Court has observed as under:
"18. As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating offcer is categorically asked as to why there was delay in examination for the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version become suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion [See Ranbir and Ors. v. State of Punjab, AIR (1973) SC 1409, Bodhraj @ Rodha and Ors. v. State of Jammu and Kashmir, [2002] 8 SCC 45 and Banti @ Guddu v. State of M.P., [2004] 1 SCC 414.]
19. The High Court has placed reliance on a decision of this Court in Ganesh Bhayan Patel and Anr. v. State of Maharashtra, [1978] 4 SCC 371. A bare reading of the fact situation of that case shows that the delayed examination by I.O. was not the only factor which was considered to be determinative. On the contrary it was held that there were catena of factors which when taken together with the delayed examination provided basis for acquittal.
20. It is to be noted that the explanation when offered by I.O. on being questioned on the aspect of delayed examination, by the accused has to be tested by the Court on the touchstone of credibility. If the explanation is plausible then no adverse inference can be drawn. On the other hand, if the explanation is found to be implausible, certainly the Court can consider it to be one of the factors to affect credibility of the witnesses who were examined belatedly. It may not have any effect on the credibility of prosecution's evidence tendered by the other witnesses."
51. In the light of the aforesaid exposition of legal position, reverting to the facts of the case, it is evident that, indeed, signifcant interval of time had elapsed between the day of 5(2005) 3 SCC 114.
40/88
CRIAPPEAL-517-2015-J-.DOC occurrence and the recording of the statements of the witnesses. The learned APP attempted to salvage the position by submitting that the critical condition in which the injured witnesses Nivrutti (PW-2) and Sudhir (PW-3) were then found, operated as a constraint in recording their statements. Reliance was sought to be placed on the testimony of Siddharth Shidne (PW-16), the then in-charge Police Inspector, Rasayani Police Station.
52. Siddharth (PW-16) endeavoured to impress upon the Court that on 8th April, 2012 pursuant to an intimation from Superintendent of Police, Raigad, he had visited Millennium Hospital, Seawood, Navi Mumbai to record the statements of Nivrutti (PW-2) and Sudhir (PW-3). According to Siddharth (PW-
16), the medical offcer opined that the witnesses were unable to give statement. A report bearing the endorsement of the medical offcer (Exhibit-145) came to be proved in the evidence of Siddharth (PW-16). He claimed to have visited the Millennium Hospital on 10th, 13th and 15th April, 2012, on which days, the medical offcer opined that the witnesses were not in a condition to give statement. According to Siddharth (PW-16), Mr. Prasad Patil, a police personnel visited the hospital on 11 th April, 2012 but the witnesses were stated to be not ft to give the statement. 41/88
CRIAPPEAL-517-2015-J-.DOC Ultimately, Siddharth Shinde (PW-16) claimed to have visited Millennium Hospital on 23rd April, 2012 and recorded the statements of the witnesses.
53. Siddharth Shinde (PW-16) candidly conceded in the cross- examination that when he met the witnesses on 8 th and 10th April, 2012, both of them were conscious. He further conceded that he had met Dr. Tambe (PW-8), the treating doctor on the very frst day i.e. 7th April, 2012. Siddharth (PW-16) went on to admit in clear and unequivocal terms that they could not record the statements of the witnesses for the only reason that they were not in a position to talk and in support of which there was no evidence on record.
54. Dr. Tambe (PW-8), the consulting surgeon, on his part, informed the Court that on the day of occurrence the history of injuries i.e. stabbing, was narrated by the injured. Dr. Tambe (PW-8) fairly admitted that the progress record (Exhibit-92) of Nivrutti (PW-2), reveals that the general condition of Nivrutti (PW-2) was stable and fair. From 8th April, 2012, onwards the vital parameters of Nivrutti (PW-2) were normal. Dr. Tambe (PW-
8) affrmed in no uncertain terms that from the date of admission till discharge Nivrutti (PW-2) was conscious. Police did not make any contact with him for the purpose of recording 42/88 CRIAPPEAL-517-2015-J-.DOC of the statement of Nivrutti (PW-2). According Dr. Tambe (PW-
8), Sudhir (PW-3) was conscious when he was admitted in the hospital on 7th April, 2012 and continued to be conscious throughout his stay in the hospital. His vital parameters were found normal throughout. His general condition was fair.
55. In the face of the aforesaid evidence of the treating doctor, the claim of Siddharh (PW-16) that the statements of the witnesses could not be recorded as they were not in a ft condition does not inspire confdence. Moreover, the prosecution did not examine the medical offcers, who made the endorsements on the reports Exhibit nos.145, 146, 147, 148 and
149. The examination of those medical offcers was imperative in the face of the evidence of Dr. Tambe (PW-8), the treating doctor, to the contrary. Even otherwise, we fnd that in the endorsement on the report (Exhibit-148) dated 16 th April, 2012 the words, "but presently due to pain patient not cooperating, hence statement can be taken tomorrow", were inserted. Even if this endorsement on the report (Exhibit-148) is taken at par, Nivutti (PW-2) was in a condition to give a statement at least on 17th April, 2012.
56. We, thus, fnd that the criticism advanced against delayed recording of the statement of Nivrutti (PW-2) and Sudhir (PW-3) 43/88 CRIAPPEAL-517-2015-J-.DOC is well merited. The endeavor of the prosecution to account for the delay by putting forth the excuse of their medical condition, in the backdrop of the evidence on record, is unworthy of countenance. The pivotal question is of consequences which the delay entails.
57. The fact that Nivrutti (PW-2) and Sudhir (PW-3) are injured witnesses cannot be lost sight of. Indisputably Nivrutti (PW-2) and Sudhir (PW-3) sustained grievous stab injuries which could have proved fatal. There is evidence to indicate that Nivrutti (PW-2) and Sudhir (PW-3) were initially shifted to Amrita Nursing Home, Bhuvaneshwar and Rural Hospital, Roha, respectively, before they were brought at Millennium Hospital for better management. The presence of Nivrutti (PW-2) and Sudhir (PW-3) at the scene of occurrence is thus fortifed by the factum of injuries sustained by them. No endeavor was made on behalf of the accused to question the very presence of Nivrutti (PW-2) and Sudhir (PW-3) at the scene of occurrence. Nor a serious effort was made to contest the fact that that Nivrutti (PW-2) and Sudir (PW-3) sustained injuries in the said occurrence. Conversely, an effort was made to draw home the point that the deceased and the injured sustained injuries in the scuffe which broke out in the premises of Bhavanimata temple. 44/88
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58. Viewed through the aforesaid prism, in our considered opinion, the aspect of delay in recording their statements, in the case at hand, does not impair the prosecution case to the extent that their presence at the scene of occurrence is itself rendered in the corridor of uncertainty. Undoubtedly, the delay puts the Court on guard. Their evidence is required to be appreciated with greater care and caution and in the light of the previous statements, probabilities of the case and other evidence which corroborates or contradicts their version.
59. The learned Senior Counsel further urged that the fact that the informant party was inimically disposed towards the accused, especially accused no.1 Prakash, who was stated to be the leader of the PWP, deserves to be kept in view. The desire to implicate as many persons from the rival group as possible is potent in cases of group rivalry. Therefore, a greater scrutiny is warranted.
60. To bolster up the aforesaid submission reliance was placed on a judgment of the Supreme Court in the case of Eknath Ganpat Aher and others vs. State of Maharashtra and others 6, wherein it was enunciated that, it is an accepted proposition that in the case of group rivalries and enmities, there is a 6(2010) 6 SCC 519.
45/88
CRIAPPEAL-517-2015-J-.DOC general tendency to rope in as many persons as possible as having participated in the assault. In such situations, the courts are called upon to be very cautious and sift the evidence with care. When after a close scrutiny of the evidence, a reasonable doubt arises in the mind of the court with regard to the participation of any of those who have been roped in, the court would be obliged to give the beneft of doubt to them.
61. Enmity is a double edged tool. On the one hand, it furnishes motive for the crime. On the other hand, it constitutes a driving factor in leveling false accusation. However, the evidence of witnesses cannot be jettisoned away on the ground that they were inimically disposed towards the accused party. The inimical nature of the relationship warrants the evaluation of the evidence with greater care and deeper scrutiny.
62. In the case at hand, it becomes evident that, the political move of the informant party to switch over to NCP had caused a vertical rift. The informant party was in minority; 17 families. PWP had, on the contrary, greater affliation; rest of the families of the village. The battle transgressed political arena and the informant party was subjected to social boycott. There were minor skirmishes in the past. The fash point was reached 46/88 CRIAPPEAL-517-2015-J-.DOC when the members of PWP declined to allow the members of the informant party to participate in the palanquin procession of goddesses Bhavanimata. Thus, it can be safely assumed that the relationship between the informant party and the accused had reached inimical proportion.
63. In the aforesaid setting, the pivotal question which wrenches to the fore is, whether the evidence of injured witnesses allures confdence?
64. Mr. Gupte, the learned Senior Counsel, urged that the evidence of the injured witnesses is highly unreliable as each of the injured has not deposed to the circumstances in which the other injured sustained the injuries, though the assault was allegedly perpetrated simultaneously at the same time and place. To this end, reliance was placed on an admission in the cross-examination of Nivrutti (PW-2) that he had not seen the assault mounted upon any other person apart from him and the deceased. It was brought in the cross-examination of Sudhir (PW-3) that his statement before the police does not name the persons who allegedly assaulted Nivrutti (PW-2). Prabhakar Petkar (PW-4), on the other hand, claimed to have witnessed the assault upon Sudhir (PW-3) only, and sustained the injuries when he went to Sudhir's rescue.
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65. In the light of the aforesaid evidence, a strenuous effort was made to draw home the point that, had the injured been the witnesses of truth they would have been able to depose to the circumstances in which all the injured sustained the injuries. We are afraid to accede to this submission. In an incident, like the present one, where a swollen majority mounts attack on few persons, it would be rather naive to expect that each of the injured would be in a position to witness as to how the co-injured was assaulted. In the normal circumstances, the attention of the persons would be drawn to the frst act of assault. Thereafter, it may not be possible for the injured witnesses to observe the incident in minute detail qua the other injured when multiple groups of people mount the attack, as if the entire incident is captured by a recording device. The omission of the witnesses to state as to how each of the co- injured sustained injuries, in the facts of the instant case, does not impeach the credibility of their claim.
66. Mr. Gupte, nextly urged that the testimony of the injured witnesses suffers from serious infrmity on account of material omissions and improvements. What exacerbates the situation, according to Mr. Gupte, is the identical omissions and 48/88 CRIAPPEAL-517-2015-J-.DOC improvements from which the testimony of Nivrutti (PW-2) and Sudhir (PW-3), the star prosecution witnesses, suffers.
67. Nivrutti (PW-2) conceded that he did not state before the police that on the day of occurrence Mr. Sharad, Mr. Shekhar, Mr. Umaji, Mr. Suresh Khandekar, Mr. Dashrath, Sandeep and Sudam Khandekar (the members of NCP) were present. A further omission was elicited in the cross-examination of Nivrutti (PW-2) that he did not state before the police on 23 rd April, 2012 and before the Magistrate on 20 th June, 2012 that at the time of the occurrence he, Shashikant Dant (PW-1), Nathuram Khandekar (the deceased), Prabhakar Petkar (PW-4) and Sudhir Khandekar (PW-3) and other people were present in the sabhamandap (meeting hall), adjacent to the temple and the accused raised the cry, "catch, stab and fnish them all" ( dhara, saale bhetlet, tyana bhoskun khalas kara). Another omission to the effect that accused no.5 Chandrakant, accused no.9 Madhukar, accused no.11 Eknath, accused no.12 Giridhar, accused no.13 Sonu, accused no.14 Dilip and accused no.16 Shailesh were present in the temple was brought out in the cross-examination of Nivrutti (PW-2) qua the statement before the police dated 23rd April, 2012 and before the Magistrate dated 20th June, 2012.
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68. As regards the weapon of assault Nivrutti (PW-2) categorically asserted that he was assaulted by two sharp edged weapons. He conceded that the sword-stick (Article-11 gupti) is a one sided sharp edged weapon. A contradiction was brought out in the cross-examination of Nivrutti (PW-2) that he did state before the police on 23rd April, 2012 that he was assaulted by means of a 'knife' and only in the supplementary statement dated 25th May, 2012, did he disclose, for the frst time, that he was assaulted by sword-stick (gupti). In the context of the situs of the injury, Nivrutti (PW-2) conceded in no uncertain terms that none of his previous statement fnds mention of the fact that he was assaulted on his right armpit.
69. In the cross-examination of Nivrutti (PW-2) a contradiction was also elicited to the effect that when he entered into the temple at 3.30 pm. he noticed that accused no.4 Vasant, accused no.3 Arjun and accused no.15 Somnath had caught hold of Nathuram. Nivrutti (PW-2) blamed his memory to state as to whether he had stated before the police in the supplementary statement dated 25th May, 2012 that he was caught hold of by accused no.15 Somnath. He attempted to salvage the position by affrming that he might have forgotten to state the same.
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70. An omission regarding the presence of Sharad Dant and six others (members of NCP) in the temple before the occurrence was elicited in the cross-examination of Sudhir (PW-3) also. Sudhir (PW-3) candidly conceded that he did not state before the police in the statement dated 23rd April, 2012 that the accused gave exhortation "catch, stab and fnish them all" ( dhara, saale bhetlet, tyana bhoskun khalas kara). Sudhir (PW-3), however, attempted to offer an explanation by asserting that he omitted to mention the said fact as he was hospitalized. Sudhir (PW-3) went on to admit that till 23 rd April, 2012, he did not tell anybody as to who had assaulted him.
71. Laying emphasis on the improvement as regards the situs of injury on the person of Nivrutti (PW-2), it was submitted that the testimony of Nivrutti (PW-2) cannot be relied upon unhesitatingly. The omission is in respect of the specifc word, 'armpit'. As indicated above, Dr. Dhruv (PW-7) who had examined Nivrutti (PW-2) at Amrita Nursing Home at Bhuvaneshwar, had also noticed, wound in 'right Axilla' just behind the anterior axillarllry fold about 2 cm. X 0.5 cm. deep." Dr. Tambe (PW-8) informed the Court that he had found a stab injury on the right side of the chest. The medical offcers noted the aforesaid injury on the person of Nivrutti (PW-2) within few 51/88 CRIAPPEAL-517-2015-J-.DOC hours of the occurrence. In the aforesaid backdrop, the specifcation by Nivrutti (PW-2) that he had sustained an injury on the armpit, does not detract materially from the veracity of his claim. Moreover, Dr. Dhruv (PW-7) had in terms recorded in the injury certifcate (Exhibit-84) that an injury was noted on the right Axilla just posterior to anterior axillallry fold. In the context of the aforesaid medical evidence, the omission to state that the injury was sustained on the 'armpit' specifcally, cannot be exalted to such a pedestal that the whole testimony of Nivrutti (PW-2) becomes suspect.
72. Mr. Gupte, the learned Senior Counsel, mounted a serious attack on the testimony of Dr. Dhruv (PW-7) and made a strenuous effort to draw home the point that the prosecution has subsequently fabricated the medical record. The claim of Dr. Dhruv (PW-7) that in the injury certifcate (Exhibit-84), it was inadvertently mentioned that the probable weapon was 'blunt heavy object', was assailed as unworthy of credence. Inviting the attention of the Court to the manner in which Dr. Dhruv (PW-7) fared in the cross-examination, it was urged that the said explanation is specious.
73. Dr. Dhruv (PW-7) conceded in the cross-examination that he became aware of the error in the certifcate (Exhibit 84) only 52/88 CRIAPPEAL-517-2015-J-.DOC on the day he deposed before the Court. The medical certifcate (Exhibit-84) is based on contemporaneous record. He went to concede that CLW will never be stab injury. There are certain incised wounds which look like CLW because they were caused by blunt weapon. In the record maintained by the hospital, it was nowhere mentioned that any of the injuries was an incised wound nor it was mentioned that those were stab injuries.
74. Indisputably, the injury certifcate (Exhibit-84) records that all four injuries are CLW. The frst three injuries are recorded as having been caused by 'blunt and heavy object'. Yet, the claim of Dr. Dhruv (PW-7) that the probable weapon of offence was inadvertently mentioned as 'hard and blunt object', in the light of the nature of the injuries and other evidence cannot be said to be unsustainable. The evidence of Dr. Tambe (PW-8) provides a formidable dyke. Dr. Tambe (PW-8), the consulting surgeon, deposed in clear and explicit terms that Nivrutti (PW-2) was admitted in Millennium Hospital with alleged history of assault by means of knife. He claimed to have found stab injuries over abdomen, on the right side of the chest and left renal angle. The operation report (Exhibit-91) also records that stab injuries were noted on the aforesaid parts of the body of Nivrutti (PW-2). In the aforesaid view of the 53/88 CRIAPPEAL-517-2015-J-.DOC matter, we are persuaded to hold that the discrepancy in the injury certifcate (Exhibit-84) regarding the nature of the injury as well as the probable weapon of offence appeared to be on account of inadvertence rather than a refection of conscious of act and contemporaneous record.
75. The next set of omissions regarding the presence of Mr. Sharad and six other members of NCP in the sabhamandap (meeting hall) also does not seem to be of material signifcance. The accused have endeavoured to demonstrate that Mr. Suresh Jadhav (PW-18), the investigating offcer, had convened a meeting of the members of NCP and PWP, led by accused no.1 Prakash, at a considerable distance from the Bhavanimata temple and, therefore, accused no.1 Prakash, in particular, could not have participated in the alleged assault and the investigating offcer and other witnesses had no opportunity to observe the incident, in general. It is not the case that the meeting near the house of the Police Patil of the village was not held by Suresh Jadhav (PW-18), the investigating offcer. Even otherwise, the fact that Mr. Sharad and other six members of the NCP were initially present in the Bhavanimata temple and later on went to attend the said meeting does not bear upon the core of the occurrence. The omission to state the said fact thus 54/88 CRIAPPEAL-517-2015-J-.DOC does not impinge upon the credibility of the prosecution witnesses.
76. The omission as regards the presence of accused no. 5 Chandrakant, accused no.9 Madhukar, accused no.11 Eknath, accused no.12 Giridhar, accused no.13 Sonu, accused no.14 Dilip and accused no.16 Shailesh, brought out in the cross- examination of Nivrutti (PW-2), however, is of material signifcance. The fact of presence or otherwise of the abovenamed accused bears upon the question as to whether they were the members of the unlawful assembly and committed acts or omissions in the prosecution of the common object of the unlawful assembly. The omission regarding exhortation having been given by the accused, "catch, stab and fnish them all" (dhara, saale bhetlet, tyana bhoskun khalas kara) elicited in the cross-examination of Nivrutti (PW-2) and Sudhir (PW-3) is also of critical salience. This omission is required to be appreciated in the determination of the crucial issue as to whether there was an unlawful assembly, and the offences were committed in prosecution of the common object of such an unlawful assembly.
77. It is imperative to note that it is a common ground that there was a crowd of persons in the Bhavanimata temple. As to 55/88 CRIAPPEAL-517-2015-J-.DOC how the commotion commenced is a matter which constitutes a vital part of the occurrence. Therefore, the omission to state that the accused raised the cry 'to catch, stab and fnish the members of the informant party', cannot be brushed aside lightly. In this setting of the matter, we propose to appreciate the thrust of the submission on behalf of the accused that there was no unlawful assembly and the offences were not committed in prosecution of the common object of the unlawful assembly and, thus, the accused could not have been roped in by invoking Section 149 of the Code.
78. Mr. Gupte mounted a multi-fold attack on the fndings of the learned Sessions Judge on the aspect existence of the unlawful assembly and the commission of the offences in prosecution of its common object. First and foremost, it was urged with a degree of vehemence that the assembly in the Bhavanimata temple could not have been termed unlawful by any stretch of imagination. Amplifying the submission it was urged that there is no shred of evidence to show that the huge crowd of persons, which had gathered at the temple, entertained any of the objects specifed in Section 141 of the Code. The assembly was not animated by any of the proscribed objects, 56/88 CRIAPPEAL-517-2015-J-.DOC much less common to the members of the said assembly. Mr. Gupte further urged that though indisputably, in law, a lawful assembly may subsequently turn unlawful, yet, in the facts of the instant case, there is not an iota of evidence to indicate that the assembly was unlawful at the inception or the common object was developed eo instante. Thirdly, it was strenuously submitted that on the anvil of the well established principles, which govern the exercise of culling out the common object of the assembly, like the overt acts of the members, language used, the arms carried and the behaviour of the members, the conduct of the accused falls neither in the frst nor in the second part of Section 149 of the Code. The learned Sessions Judge, according Mr. Gupte, completely misdirected himself in applying the principle of constructive liability.
79. To lend support to the aforesaid submissions, Mr. Gupte placed strong reliance on the judgments of the Supreme Court in the cases of State of Punjab vs. Sanjeev Kumar and others7, Gangadhar Behera and others vs State of Orissa8, Miaku (supra), Eknath Aher (supra), Bannareddi and other vs. State of Karnataka and others9, Joseph vs. State10, Vinubhai 7 AIR 2007 SCC 2430.
82003 SCC (Cri.) 32.
9(2018) 5 SCC 790.
10(2018) 12 SCC 283.
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80. Since the legal position on the aspect of invocation and applicability of Section 149 of the Penal Code is well settled, we do not deem it necessary to refer to all of the aforesaid pronouncements in detail. It would be suffce to make a proftable reference to the judgments of the Supreme Court in the cases of State of Punjab (supra), Vinubhai Patel (supra) and Joseph (supra).
81. In the case of State of Punjab (supra), the Supreme Court expounded the nature of the constructive criminality under Section 149, the factors which are germane in drawing inference about the common object, how common object is distinct from common intention and the subtle yet signifcant distinction between two parts of Section 149 of the Penal Code. The observations of the Supreme Court in paragraph nos.8 to 10 are instructive and thus extracted below:
"8. The pivotal question is applicability of Section 149 IPC. Said provision has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere 11(2018) 7 SCC 743.
12 (2019) 4 SCC 620.
13(2019) 5 SCC 469.58/88
CRIAPPEAL-517-2015-J-.DOC presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of fve or more persons and whether the said persons entertained one or more of the common objects, as specifed in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object means' the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modifed or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly.
9. 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is fve or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the 59/88 CRIAPPEAL-517-2015-J-.DOC unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instante.
10. Section 149, IPC consists of two parts. The frst part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the frst part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected as noted above from the nature of the assembly, arms carried and behaviour at or before or after the scene of occurrence. The word 'knew' used in the second limb of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would 60/88 CRIAPPEAL-517-2015-J-.DOC come within the second part but not within the frst part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the frst part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within frst part of the offences committed in prosecution of the common object would also be generally, if not always, within the second part, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and others v. State of Mysore AIR 1956 SC 731)."
82. In the case of Vinubhai Patel (supra) the distinction between Sections 141, 146, 148 and 149 of the Code, and the foundational requirement for the existence of an unlawful assembly were illuminatingly postulated. The observations in paragraph nos.30 to 32 of the judgment are material. They read as under:
"30. It can be seen from the above, Sections 141, 146 and 148 create distinct offences. Section 149 only creates a vicarious liability. However, Sections 146, 148 and 149 contain certain legislative declarations based on the doctrine of vicarious liability. The doctrine is well known in civil law especially in the branch of torts, but is applied very sparingly in criminal law only when there is a clear legislative command. To be liable for punishment under any one of the provisions, the fundamental requirement is the existence of an unlawful assembly as defned under Section 141 made punishable under Section143 IPC.
31. The concept of an unlawful assembly as can be seen from Section 141 has two elements;
(i) The assembly should consist of at least fve persons; and
(ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein.
32. For recording a conclusion, that a person is (i) guilty of any one of the offences under Sections 143, 146 or 148 61/88 CRIAPPEAL-517-2015-J-.DOC or (ii) vicariously liable under Section 149 for some other offence, it must frst be proved that such person is a member of an "unlawful assembly" consisting of not less than fve persons irrespective of the fact whether the identity of each one of the 5 persons is proved or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the 5 enumerated objects specifed under Section 141 IPC."
83. In the case of Joseph (supra), while adverting to the previous pronouncements of the Supreme Court, the essential requirement for invoking the vicarious liability under Section 149 and the scope of two parts of the said section were postulated as under:
"11. Before we consider the testimony of the witnesses, let us consider the requirements for invoking the vicarious liability under Section 149 IPC. Section 149 IPC consists of two parts:
11.1 The frst part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In order that the offence may fall within the frst part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member.
11.2 The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section149, if it can be shown that the offence was such as the members knew was likely to be committed.
11.3 What is important in each case is to fnd out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the court fnds that the ingredients of Section 149 IPC are fulflled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a fnding, it would not be open to the court to see as to who actually did the offensive act nor would it be open to the court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established."62/88
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84. It would be contextually relevant to note that Ms. Shinde, the learned APP, on the other hand, placed a strong reliance on the judgment of the Supreme Court in the case of Gangadhar Behra (supra), especially paragraph nos.22 to 24 thereof. The learned Additional Sessions Judge was of the view that the aforesaid pronouncement governs the facts of the case. The observations of the Supreme Court in the case of the State of Punjab (supra) (extracted above) reiterate the enunciation in paragraph nos.22 to 24 of the judgment in the case of Gangadhar Behra (supra).
85. In view of the aforesaid legal position, the moot question that wrenches to the fore is; was the assembly unlawful?. To begin with, the nature of the assembly. Indisputably villagers had gathered at Bhavanimata temple in large number. Though ocular account varies on the precise number of persons yet, the presence of more than 100 persons in the temple is, by and large, incontestible. What warrants consideration is the purpose and object of assembly than its numerical strength.
86. The villagers had apparently assembled in the temple to pay obeisance to Goddess Bhavanimata and take part in the palanquin procession. There is no evidence to indicate that the driving factor behind the presence of the people at temple was 63/88 CRIAPPEAL-517-2015-J-.DOC other than the desire to participate in the religious congregation. If viewed through the prism of time, place and purpose of the initial gathering, before the occurrence, the assembly cannot be attributed with any of the proscribed objects.
87. The learned Sessions Judge was of the view that in the backdrop of the evidence on record to indicate that the members of the informant party were subjected to social boycott, they were not allowed to take part in the procession of palanquin of Bhavanimata and even restrained from having darshan of the palanquin in the premises of the temple, it can be inferred that the accused had a grudge against the members of the informant party, and, thus, they were assaulted in prosecution of the common object of the unlawful assembly.
88. In our view, the learned Sessions Judge had fallen in error in allowing himself to be infuenced by the inimical nature of the relationship and the fallout of the political move of the informant party. Instead the attendant conduct and behaviour of the members of the assembly ought to have received consideration.
89. It is imperative to note that none of the injured witnesses claimed that they were restrained from entering the 64/88 CRIAPPEAL-517-2015-J-.DOC sabhamandap (meeting hall) by any of the accused, or for that matter, any other member of the assembly. It was elicited in the cross-examination of Nivrutti (PW-2) that as the police were present in sabhamandap (meeting hall), the accused did not oppose his presence thereat. Nor the accused asked him to leave the sabhamandap (meeting hall). None of the injured witnesses have deposed that an altercation ensued over their presence in the sabhamandap (meeting hall). Conversely, they claimed that while they were present in the sabhamandap (meeting hall) the attack was mounted suddenly.
90. In the aforesaid context, the omission to state that the accused gave exhortation to 'catch, stab and kill the members of the informant party' is of material signifcance. As to how the commotion commenced is a matter which bears upon the entertainment of the object by the members of the assembly. In our considered view, the prosecution witnesses could not have missed to state that the accused gave the exhortation. The said omission, therefore, cannot be said to be inconsequential or immaterial. If this part of the evidence is excluded from consideration, then there is no material which would throw light on the words used by the members of the assembly preceding 65/88 CRIAPPEAL-517-2015-J-.DOC and accompanying the assault to betray the unlawful object they entertained.
91. The evidence on record does not indicate that the members of the assembly had openly carried the weapons. The fact that the police party was already posted in the temple premises is also required to be taken into account. The prosecution witnesses have conceded in clear and explicit terms that they had not seen any of the members of the assembly armed with deadly weapon before the assault was unleashed. Thus, on the parameter of the nature of the arms which were carried by the members of the assembly, prior to the occurrence, an inference that the assembly was animated with an unlawful object, can not be sustained.
92. On a careful evaluation of the evidence on the touchstone of the factors which are germane to determine the common object of the unlawful assembly, we do not fnd that the accused and the villagers had assembled at the scene of occurrence to accomplish the common object of committing murder and causing hurt. The applicability of the frst part of Section 149 is thus frmly ruled out. Nor the material on record indicates that the offences committed were such that the members of the assembly knew likely to be committed. The purpose of the gathering, the suddenness of the attack, single blows attributed 66/88 CRIAPPEAL-517-2015-J-.DOC to accused no.1 Prakash, accused no.2 Vaibhav, accused no.7 Sunil, accused no.9 Madhukar and accused no.11 Eknath, and the fact that none of the witnesses deposed to have seen the assailants were armed with respective weapons prior to the assault render it rather unsafe to draw an inference that the persons who had gathered at the scene of occurrence had the positive knowledge that the offences of murder and attempt to commit murder would be committed. The evidence on record, thus, does not sustain a fnding that the second part of Section 149 comes into play.
93. In the totality of the circumstances, we are persuaded to hold that the prosecution has not succeeded in establishing that the assembly of the persons at the Bhavanimata temple at the time of the occurrence was unlawful. Consequently complicity of the individual accused to the extent borne out by the evidence is required to be determined.
94. The learned Sessions Judge culled out the overt acts of each of the accused, the weapon which they used and the evidence in support thereof, ocular and medical, in a tabulated statement. While determining the individual liability of the accused we deem it appropriate to extract the said chart (in paragraph 52 of the impugned judgment).
67/88 CRIAPPEAL-517-2015-J-.DOC Name of The accused The The part of The witness The Doctor the victims who caught accused body where who had of the hold of who made the assault witnessed Medical assault was made the incident Offcer who with which provided the weapon medical treatment 1 2 3 4 5 6 Nathuram A-3 Arjun, A-1 In the Chest PW-2 PW-9 Dr. Dattatrya A-4 Vasant Prakash, Nivrutti, Anand Khandekar A-15 Somnath Article-8 PW-3 Sudhir Kumar (deceased) Sura & PW-5 Singh Sachin Nivrutti A-8 Harish, A- A-2 On the right He himself PW-7 Dr. Janu 17 Sudhir Vaibhav side of the Dhruv, PW-8 Khandekar Namdev with Article chest/ Dr. Uday (PW-2) Khandekar, A- 10 Sura armpit Tambe 15 Somnath, A-6 Daulat, A- 10 Krishna Sudhir A-14 Dilip A-5 A-11 In the PW-4 PW-9 Dr. Bhagwan Chandrakant, Eknath Stomach Prabhakar Anand Khandekar A-13 Sonu, A- Article - 9 Petkar, PW-2 Kumar (PW-3) 12 Giridhar Sura Nivrutti Singh, PW-8 Khandekar Dr. Uday Tambe Prabhakar A-10 Krishna A-9 On the Head He himself PW-9 Dr. Umaji Madhukar Anand Petkar Article - 12 Kumar (PW-4) Tal Singh Shashikant ----- A-6 Daulat On the Head He himself PW-9 Dr. Laxman A-16 Anand Dant (PW- Shailesh Kumar 1) with sticks Singh
95. First and foremost, the role attributed to the assailants. Mr. Gupte, the learned Senior Counsel for the appellants urged that the evidence adduced by the prosecution does not support the role of prime assailant attributed to accused no.1 Prakash. It was submitted that the testimony of the witnesses that accused no.1 Prakash, alongwith few others, was called by police inspector Suresh Jadhav (PW-18) for the meeting near the 68/88 CRIAPPEAL-517-2015-J-.DOC house of the police patil, which was at a considerable distance from the temple, ruled out the presence of accused no.1 Prakash at the scene of occurrence. Since accused no.1 Prakash was the leader of NCP, the prosecution witnesses have falsely roped in Prakash, urged Mr. Gupte.
96. The submission appears attractive at the frst blush. However, on close scrutiny the submission does not carry much conviction. In the case at hand, the testimony of Suresh Jadhav (PW-18) is not restricted to furnishing the details of the investigation. It throws light on the sequence of events and the manner in which the occurrence unfolded. Suresh Jadhav (PW-
18) informed the Court that initially accused no.1 Prakash and other members of PWP were called near Hanuman temple. Accused no.1 Prakash told him that the members of NCP were allowed to have darshan of palanquin when the procession would pass from in front of their houses. However, they would not be allowed to join the procession. Thereafter he claimed to have called the members of NCP near the house of the police patil and apprised them about the stand of accused no.1 Prakash. They agreed to take darshan of the palanquin near their houses. Suresh Jadhav (PW-18) further wants the Court to believe that, thereafter, he held a joint meeting between the 69/88 CRIAPPEAL-517-2015-J-.DOC members of NCP and PWP. After the joint meeting, accused no.1 Prakash and his partymen went back to the temple. He stayed back with Shekhar Dant and others. After about 4 to 5 minutes he heard the shouts, marle marle (beat, beat), and people started running away. Thereupon, he claimed to have rushed to the temple and separated the members of NCP and PWP.
97. This part of the evidence of Suresh Jadhav (PW-18) could not be impeached despite an incisive and lengthy cross- examination. This claim of Suresh Jadhav (PW-18) is required to be appreciated in the light of the fact that sensing a law and order problem, the police party had already arrived and it was expected of the police offcer to have a dialogue with the rival factions to avert the possible fare up. We do fnd any justifable reason to disbelieve Suresh Jadhav (PW-18).
98. Moreover, the testimony of Nivrutti (PW-2) and Sudhir (PW-
3), the injured witnesses, on the point that accused no.1 Prakash had unleashed the deadly blow by means of knife fnds necessary corroboration in the evidence of Sachin Chaure (PW-5). Thus, the endeavour of the accused to throw the cloud of doubt over the presence of accused no.1 Prakash in the sabhamandap (meeting hall) at the time of occurrence does not merit acceptance.
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99. The testimony of Nivrutti (PW-2), the injured, establishes the identity of accused no.2 Vaibhav and accused no.7 Sunil as the assailants who caused stab injuries to him. The ocular account is amply corroborated by medical evidence. The contradiction regarding the weapon by means of which accused no.7 Sunil assaulted Nivrutti (PW-2) (knife instead of sword stick Article-7) in the context of the presence of the numerous persons, the short duration for which the incident lasted and infiction of a single blow by accused no.7 Sunil, does not erode the credibility of his testimony.
100. As regards the complicity of accused no.11 Eknath, the testimony of Sudhir (PW-3) fnds requisite support in the evidence of Prabhakar Petkar (PW-4). Since accused no.11 Eknath allegedly sustained injuries in the course of the same occurrence, the presence of accused no.11 Eknath at the time and place of the occurrence can hardly be contested. Nor can the existence of opportunity to Sudhir (PW-3) to witness the assailant who gave the blow can be gainsaid.
101. Prabhakar Petkar (PW-4) claimed to have sustained CLW on tempero frontal region on account of the blow by means of tal Article 12 (cymbals) inficted by accused no.9 Madhukar. It is true that Prabhakar Petkar (PW-4) conceded in the cross- 71/88
CRIAPPEAL-517-2015-J-.DOC examination that at the time of occurrence many persons were having tals (cymbals) in their hands. However, Prabhakar Petkar (PW-4) did not cave in to the suggestion that he was assaulted on the head by means of tal (cymbals) from the backside. The situs of injury i.e. tempero frontal region is not such that the witness could not have seen the assault.
102. It was further brought out in the cross-examination of Prabhakar Petkar (PW-4) that it did happen that the people at the temple other than the accused were also beating the Nathuram, Nivrutti (PW-2) and Shashikant Dant (PW-1). Laying emphasis on this admission, Mr. Gupte, the learned Senior Counsel would urge that it cannot be inferred with certainty that only the accused were the authors of the injuries sustained by the deceased and the injured. We are afraid to agree with this submission for reasons more than one. Firstly, even if taken at par, it does not exculpate the accused - assailants completely. Secondly, the admission, if it can be termed so, seems to have been obtained in an unguarded moment. Thirdly, the split in the village was vertical. Apart from the members of the informant party, rest of the persons then present in the temple represented the opposite group. Yet, the prosecution witnesses have named the particular assailants with specifc roles. 72/88
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103. Shashikant Dant (PW-1) had sustained CLW on tempero frontal region. However, there is no evidence to establish the identity of the assailants. Shashikant Dant (PW-1) categorically refused to subscribe to the prosecution version that accused no.16 Shailesh and accused no.6 Daulat assaulted him by means of sticks. In the absence of any evidence to establish their identity, the learned Sessions Judge could not have recorded a fnding that accused no.16 Shailesh and accused no.6 Daulat assaulted Shashikant Dant (PW-1).
104. The role attributed to the rest of the accused is of having caught hold of the deceased and the injured, while the above named assailants inficted blows by the respective weapons with which they were armed. The learned Sessions Judge was persuaded to believe that accused no.3 Arjun, accused no.4 Vasant and accused no.15 Somnath had caught hold of the deceased Nathuram; accused no.8 Haresh, accused no.17 Sudhir, accused no.15 Somnath, accused no.6 Daulat and accused no.10 Krishna had caught hold of Nivrutti (PW-2); accused no.14 Dilip, accused no.5 Chandrakant, accused no.13 Sonu and accused no.12 Giridhar had caught hold of Sudhir (PW-3) and accused no.10 Krishna had caught hold of Prabhakar Petkar (PW-4).
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105. The veracity of the claim of the prosecution witnesses on the aspect of the overt acts attributed to abovenamed accused, ought to have been appreciated in the backdrop of the previous statements and probabilities of the case. As regards accused no.15 Somnath, an omission was elicited in the cross- examination of both Nivrutti (PW-2) and Sudhir (PW-3) that their statements before the police did not fnd mention of the fact that accused no.15 Somnath had also caught hold of the deceased when accused no.1 Prakash inficted the fatal blow. To add to this, Sachin Chaure (PW-5), the police Naik, affrmed that the deceased was caught hold of by two persons. Sachin Chaure (PW-5) expressed his inability to identify those two persons before the Court. It is pertinent to note that Nivrutti (PW-2) conceded in the cross-examination that the assailants of the Nathuram did not come towards him or perpetrate any assault upon him. Likewise Sudhir (PW-3) candidly asserted that the accused, who assaulted the deceased did not assault him. The tenor of the evidence of the injured witnesses Nivrutti (PW-2), Sudhir (PW-3) and Prabhakar (PW-4) is that a distinct set of accused assaulted each of the injured witnesses. In this backdrop, the claim of Nivrutti (PW-2) that accused no.15 Somnath had caught hold of the deceased and him also, does not appear nearer to the truth. The omission to name accused 74/88 CRIAPPEAL-517-2015-J-.DOC no.15 Somnath as one of the persons, who had caught hold of the deceased, thus, assumes signifcance. We are, therefore, persuaded to hold that the complicity of accused no.15 Somnath cannot be said to have been established.
106. Dual role is also attributed to accused no.6 Daulat and accused no.10 Krishna. Apart from having caught hold of Nivrutti (PW-2), accused no.6 Daulat was also attributed the role of having inficted blow by means of a stick on the head of Shashikant Dant (PW-1). Whereas accused no.10 Krishna allegedly caught hold of both Nivrutti (PW-2) and Prabhkar (PW-4). It would be contextually relevant to note that in the cross-examination of Prabhakar (PW-4) it was elicited that he was pushed before he was assaulted. But he cannot name the person, who had pushed him. Prabhakar (PW-4) went on to admit that accused no.10 Krishna is his cousin, the son of paternal aunt. In the backdrop of the aforesaid admissions, we are not impelled to hold that the complicity of accused no.6 Daulat and accused no.10 Krishna is established beyond reasonable doubt.
107. The learned Sessions Judge was not persuaded to believe the plea of alibi taken by accused no.17 Sudhir. The prosecution tried to blunt out the defence of alibi, taken by 75/88 CRIAPPEAL-517-2015-J-.DOC accused no.17 Sudhir at the earliest opportunity, by examining Dr. Umakant Jadhav (PW-6), who runs a hospital at Pali. Dr. Jadhav (PW-6) endeavered to impress upon the Court that though accused no.17 Sudhir Khandekar was never admitted as an indoor patient in his hospital, a certifcate (Exhibit-86) came to be issued to the effect that accused no.17 Sudhir was an indoor patient from 6th April, 2012 to 8th April, 2012. The said certifcate was issued as accused no.17 Sudhir desired to produce the same before his employer for seeking medical leave. In the cross-examination of Dr. Jadhav (PW-6) it was elicited that a discharge summary was also issued indicating that accused no.17 Sudhir was admitted in the hospital from 6 th April, 2012 to 8th April, 2012. Entries were made in the indoor patient register. Conversely, there was no entry in the OPD register dated 8th April, 2012. Dr. Jadhav (PW-6) attempted to wriggle out of the situation by asserting that the attendant might have forgotten to make entry in the OPD register on 8 th April, 2012. Dr. Jadhav (PW-6), however, conceded that accused no.17 Sudhir was genuinely ill of enteric fever.
108. In the face of the aforesaid record, in our view, the plea of alibi of accused no.17 Sudhir could not have been brushed aside lightly. Dr. Jadhav (PW-6) does not claim that accused no.17 76/88 CRIAPPEAL-517-2015-J-.DOC Sudhir did not avail treatment at all during the said period. Instead, an endeavour was made to show that accused no.17 Sudhir availed treatment on all three days as an outdoor patient. In the context of the role attributed to accused no.17 Sudhir, of having caught hold of Nivrutti (PW-2), on balance, we fnd that there is an element of uncertainty about the overt act attributed to accused no.17 Sudhir.
109. The upshot of the aforesaid consideration is that the prosecution cannot be said to have succeeded in establishing the complicity of accused no.6 Daulat, accused no.10 Krishna, accused no.15 Somnath, accused no.16 Shailesh and accused no.17 Sudhir.
110. Mr. Gupte, the learned Senior Counsel urged that, the evidence against rest of the accused is also unworthy of credence. Assailing the credibility of circumstantial evidence, it was submitted that, the nexus between accused no.1 Prakash, accused no.2 Vaibhav, accused no.7 Sunil, accused no.9 Madhukar and accused no.11 Eknath and the respective weapons allegedly used by the accused has not been established. It was submitted with a degree of vehemence that the evidence of discoveries, in particular, and circumstantial evidence, in general, is wholly unreliable. Moreover, the 77/88 CRIAPPEAL-517-2015-J-.DOC prosecution case suffers from the vice of not seizing the clothes which the accused allegedly wore at the time of occurrence, non sealing of the incriminating articles immediately after their seizure and inordinate delay in sending seized articles to the Forensic Science Laboratory for analysis. In the absence of coherent evidence on these aspects, the prosecution cannot be said to have succeeded in establishing the guilt of the abovenamed assailant - accused.
111. The discoveries, made by accused no.1 Prakash, accused no.2 Vaibhav, accused no.7 Sunil, accused no.9 Madhukar and accused no.11 Eknath were assailed on the count that the public witnesses to each of the discoveries did not support the prosecution. Two, it is highly inconceivable that the accused would have concealed those weapons in the precincts of Bhavanimata temple when there is evidence to indicate that accused nos.1 to 10 were initially detained in the temple and, thereafter, arrested on the very day of the occurrence.
112. It is true that the public witnesses to the discoveries namely Harishchandra Umaji Javarat (PW-13), Chandrakant Bandu Malekar (PW-14) as well as the independent witness to the scene of occurrence and seizure panchnama, namley; Vilas Maruti Khandekar (PW-10), Hari Shahadeo Kadam (PW-11) and 78/88 CRIAPPEAL-517-2015-J-.DOC Ganesh Pandurang More (PW-12), declined to support the prosecution. The learned Sessions Judge was, however, persuaded to place reliance on the evidence of Suresh Jadhav (PW-18), who effected discoveries.
113. In the backdrop of indisputable position that the village was vertically faction-ridden, the fact that the public witnesses to the discovery did not support the prosecution cannot command such weight as to throw the prosecution case overboard. It is imperative to note that with a political coup the erstwhile members of PWP joined NCP, the political outft of the informant party. Apparently, the endeavour was not only to merge the political affliations but the aggressors with the aggrieved. The reluctance of the prosecution witnesses to support the prosecution is required to be appreciated in this setting of the matter. In the circumstances, in our view, the learned additional Sessions Judge was justifed in placing reliance upon the evidence of Suresh Jadahv (PW-18) who effected the seizure of weapons pursuant to the disclosure statements made by each of the assailant - accused.
114. The endeavour on the part of the accused to draw mileage from the failure of the Investigating Offcer to seize the clothes, which the accused wore at the time of occurrence, to 79/88 CRIAPPEAL-517-2015-J-.DOC immediately seal the seized articles and forward the incriminating articles to Forensic Science Laboratory with reasonable dispatch in the context of ocular account and peculiar facts of the case, cannot be countenanced. These are lapses in investigation. It is trite law that a defective or even designedly faulty investigation is not a ground to throw away the prosecution. In the backdrop of the direct evidence which, on a careful analysis, establishes the identity of accused no.1 Prakash, accused no.2 Vaibhav, accused no.7 Sunil, accused no.9 Madhukar and accused no.11 Eknath as the assailants, in our view, the aforesaid lapses do not erode the credibility of the prosecution case.
115. Mr. Pasbola, the learned Counsel for the accused lastly urged that the charge framed against the accused was so defective that the trial is completely vitiated. Inviting the attention of the Court to the charge (Exhibit-42) framed by the learned Additional Sessions Judge, Mr. Pasbola urged that an arcane charge under Section 302 read with Section 149 of the Penal Code was framed against all the accused, without specifying that the offence was committed in prosecution of the common object of an unlawful assembly. No separate charge under Section 302 and 307 of the Penal Code 80/88 CRIAPPEAL-517-2015-J-.DOC was framed. Therefore, an application, being Criminal Application No.1306 of 2015, was preferred by the accused seeking re-trial. By an order dated 28th October, 2015, it was directed that the said application be heard alongwith this appeal.
116. We are unable to persuade ourselves to agree with the aforesaid submission. Indisputably, charge under Section 302 read with Section 149 of the Penal Code was framed against all the accused including accused no.1 Prakash. It is well recognised that in view of the provisions contained in Section 464 of the Code, the appellate or revisional Court is within its rights to convict the accused for the offence for which no charge was framed unless the Court is of the opinion that the failure of justice has, in fact, occasioned. A sure test to determine whether failure of justice has occasioned is to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him in clear terms, and did he get a fair opportunity to defend himself.
117. A useful reference, in this context, can be made to a Constitution Bench judgment of the Supreme Court in the case 81/88 CRIAPPEAL-517-2015-J-.DOC of Willie (William) Slaney vs. State of M.P. 14 wherein the Supreme Court examined the issue of absence of charge in considerable detail in the backdrop of the provisions of the Code of Criminal Procedure, 1898 and enunciated the legal position as under:
"6. Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice.
If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is 'substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.
44. Now, as we have said, sections 225, 232, 535 and 537(a) between them, cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to fnish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that 'whatever' the irregularity it is not to be regarded as fatal unless there is prejudice."
118. In the case of Dalbir Singh vs. State of U.P., 15 a three Judge Bench of the Supreme Court after relying upon the aforesaid observations in the case of Willie (supra) expounded as under:
14AIR 1956 SC 116.
15(2004) 5 Supreme Court Cases 334.82/88
CRIAPPEAL-517-2015-J-.DOC "17. There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. Therefore, in view of Section 464 CrPC, it is possible for the appellant or revisional court to convict an accused for an offence for which no charge was framed unless the court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. ...."
119. In the backdrop of the aforesaid enunciation of the legal position reverting to the facts of the case, we do not fnd that the accused were prejudiced in any manner. The accused were fully aware of the gravamen of indictment against them. The charge under Section 302 read with Section 149 was framed against all the accused, including accused no.1 Prakash and the charge under Section 307 read with Section 149 was also framed against all the accused with the details of the role attributed to the particular accused. It is true that in the frst count of charge it was not specifcally mentioned that the offence punishable under Section 302 read with Section 149 of the Penal Code was committed in prosecution of the common object of the unlawful assembly. However, in the light of the fndings arrived at, and the view which we have taken, the said defect cannot be construed as having caused prejudice to the accused, especially accused no.1.
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120. The conspectus of the aforesaid consideration is that for failure of the prosecution to establish that the accused were members of an unlawfull assembly and the offences were committed in prosecution of common object of the unlawful assembly, the conviction of the accused for the offences punishable under Sections 302, 307, 324, 504 and 506 read with Section 149 and Sections 147 and 148 of the Penal Code cannot be sustained. Instead, on the premise of liability for the individual acts, the accused no.1 Prakash is liable to be convicted for the offence punishable under Section 302, for having committed murder of the deceased Nathuram, accused no.2 Vaibhav and accused no.7 Sunil for the offence punishable under Section 307 for having attempted to commit murder of Nivrutti (PW-2), accused no.11 Eknath for the offence punishable under Section 307 for having attempted to commit murder of Sudhir (PW-3) and accused no.9 Madhukar for the offence punishable under Section 324 for having caused hurt to Prabhakar (PW-4) by a dangerous weapon. Whereas accused no.3 Arjun, accused no.4 Vasant, accused no. 5 Chandrakant, accused no.8 Haresh, accused no.12 Giridhar, accused no.13 Sonu, accused no.14 Dilip, are liable to be convicted for the offence punishbale under Section 323 only for having caused hurt. No offence can be said to have been proved against 84/88 CRIAPPEAL-517-2015-J-.DOC accused no.6 Daulat, accused no.10 Krishna, accused no.15 Somnath, accused no.16 Shailesh and accused no.17 Sudhir. Thus, accused nos.6, 10, 15, 16 and 17 deserve to be acquitted of the offences.
121. Having regard to the nature of the offences, their genesis in the inimical relations on account of political rivalry, the circumstances of the case, the surcharged atmosphere in which the informant and the accused party found themselves, and the situation in life of the accused, in our considered view, the sentence we propose to impose would meet the ends of justice.
122. Resultantly, the appeal deserves to be partly allowed. Hence the following order.
: ORDER :
(i) The appeal stands partly allowed.
(ii) The impugned judgment of conviction and sentence for the offences punishable under Sections 302, 307, 324, 504, 506 read with Section 149, and Sections 147 and 148 of the Penal Code stands quashed and set aside.
(iii) Accused no.6 Daulat, accused no.10 Krishna, accused no.15 Somnath, accused no.16 Shailesh and accused no.17 Sudhir stand acquitted of all the offences.
85/88
CRIAPPEAL-517-2015-J-.DOC Accused no.6 Daulat, accused no.10 Krishna, accused no.15 Somnath, and accused no.17 Sudhir stand released forthwith.
They are on emergency (Covid-19) parole.
They need not surrender in this case.
The bail bond of accused no.16 Shailesh stands cancelled and surety stands discharged.
(iv) The appellants - accused no.1 Prakash, accused no.2 Vaibhav, accused no.3 Arjun, accused no.4 Vasant, accused no.5 Chandrakant, accused no.7 Sunil, accused no.8 Haresh, accused no.9 Madhukar, accused no.11 Eknath, accused no.12 Giridhar, accused no.13 Sonu and accused no.14 Dilip stand acquitted of the offences punishale under Sections 302, 307, 324, 504, 506 read with Section 149, and Sections 147 and 148 of the Penal Code.
(v) Accused no.1 Prakash stands convicted for the offene punishable under Section 302 of the Penal Code and is sentenced to suffer imprisonment for life and pay a fne of Rs.15,000/- (Rs. Fifteen thousand) and, in default of payment of fne, suffer further rigorous imprisonment for the period of six months.
(vi) Accused no.2 Vaibhav, accused no.7 Sunil and accused no.11 Eknath stand convicted for the offence punishable under Section 307 of the Penal Code and are sentenced to suffer rigorous imprisonment for the period of 10 years and pay fne of Rs.15,000/-
(Rs. Fifteen thousand) each, and in default of 86/88 CRIAPPEAL-517-2015-J-.DOC payment of fne, suffer further rigorous imprisonment for the period of six months.
(vii) If the amount of fne is realised, an amount of Rs.25,000/- (Rs. Twenty-fve thousand) be paid to Smt. Indumati Dattatraya Khandekar, the mother of the deceased Nathuram, and an amount of Rs.15,000/- (Rs. Fifteen thousand) each, be paid to the injured Nivrutti Khandekar (PW-2) and Sudhir Khandekar (PW-3) under Section 357 (1) of the Code.
(viii) Accused no.9 Madhukar stands convicted for the offence punishable under Section 324 of the Penal Code.
Accused no.9 Madhukar has undergone imprisonment for the period more than the maximum sentence prescribed under Section 324 of the Penal Code. Hence, accused no. 9 Madhukar stands released forthwith.
He is on emergency (Covid-19) parole.
He need not surrender in this case.
(ix) Accused no.3 Arjun, accused no.4 Vasant, accused no.5 Chandrakant, accused no.8 Haresh, accused no.12 Giridhar, accused no.13 Sonu and accused no.14 Dilip stand convicted for the offence punishable under Section 323 of the Penal Code.
Accused no.3 Arjun, accused no.4 Vasant, accused no.5 Chandrakant, accused no.8 Haresh, accused no.12 Giridhar, accused no.13 Sonu and 87/88 CRIAPPEAL-517-2015-J-.DOC accused no.14 Dilip have undergone imprisonment for the period more than the maximum sentence prescribed under Section 323 of the Penal Code. Hence, they stand released forthwith.
They are on emergency (Covid-19) parole.
They need not surrender in this case.
(x) Accused no.1 Prakash, accused no.2 Vaibhav, accused no.7 Sunil and accused no.11 Eknath, who are on emergency (Covid-19) parole shall surrender before the Court of the learned Additional Sessions Judge, Mangaon, District Raigad, to undergo the remainder of the sentence, within a period of four weeks from today.
(xi) Accused no.1 Prakash, accused no.2 Vaibhav, accused no.7 Sunil and accused no.11 Eknath are entitled to set off.
123. The appeal stands disposed of.
124. In view of disposal of the appeal, the criminal application does not survive and accordingly stands disposed of. V. S. Parekar Digitally signed by V. S. Parekar Date: 2021.02.25 19:30:01 +0530 [N. J. JAMADAR, J.] [SMT. SADHANA S. JADHAV J.] 88/88