2000 ALL MR (Cri) 1130
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

VISHNU SAHAI AND D.G. DESHPANDE, JJ.

Anna Ganpati Virekar & Anr., Vs. The State Of Maharashtra

Criminal Appeal No. 32 of 1994

16th December, 1999

Petitioner Counsel: Mr. A. P. MUNDARGI with Mr. GANESH GOLE and Ms. KHER
Respondent Counsel: Ms. USHA KEJRIWAL

(A) Evidence Act (1872), Ss.3 and 134 - Penal Code (1860), Ss.149, 300, 326 - Offence under - Evidence and proof - Injured witness - His evidence is entitled to great weight.

The evidence of an injured witness is entitled to the highest weightage and this is because, the injuries guarantee presence of such witnesses. And once that hurdle is crossed, the only question which survives is that of credibility of such a witness. In the instant case, the credibility of injured witnesses is ensured by medical evidence and other circumstances such as the names of accused were mentioned in FIR which was lodged within 3 ½ hours of the incident taking place. [Para 15,17]

The principle that evidence has to be weighed and not counted is ingrained in section 134 of the Indian Evidence Act which provides that "no particular number of witnesses shall in any case, be required for proof of any fact." [Para 19]

(B) Criminal P.C. (1973), S.401 - Penal Code (1860), Ss.149 and 302 - Murder in prosecution of common object - In view of nature of injuries accused could be convicted under Ss. 302/149 - Court however convicting accused under Ss. 326/149 - Accused acquitted for offence under S. 302/149 - No appeal filed by State against acquittal - High Court could not convert finding of acquittal into one of conviction in view of prohibition contained in S. 401. (Para 20)

JUDGMENT

VISHNU SAHAI, J.:- Since both these appeals arise out of same set of facts and a common impugned Judgment, we are disposing them off by one Judgment.

2. Through these appeals, the appellants challenge the Judgment and Order dated 7-1-1994 passed by the Sessions Judge, Sangli, in Sessions Case No. 34 of 1988, convicting and sentencing them in the manner stated hereinafter :-

(i) Under section 147 IPC to suffer one years R. I. and to pay a fine of Rs. 500/- in default to undergo three months R.I. ;

(ii) Under section 148 IPC to suffer one years R. I. and to pay a fine of Rs. 500/- in default to undergo three months R.I.

(iii) Under section 457 IPC to suffer one years R. I. and to pay a fine of Rs. 1000/- in default to undergo three months R.I.

In addition :

(i) The appellants - Anna Ganapati Virekar and Bandu Aba Virekar under section 326 IPC to suffer Six years R.I. and to pay a fine of Rs. 5000/- in default to suffer six months R.I.;

(ii) The Appellants - Anna Ganapati Virekar and Tanaji Ganapati Virekar under section 326 r/w 149 IPC to suffer five years R. I. and to pay a fine of Rs. 2000/- in default to undergo six months R. I. ; and

(iii) The appellant - Bandu Aba Virekar under section 302 IPC to suffer imprisonment for life.

The substantive sentences of the appellants were ordered to run concurrently.

In short, the prosecution case runs as under :-

At the time of the incident, the informant Gunvant Barge PW 4, his brother the deceased Jalindhar and their father Maruti used to reside along with family members in village Kedarwadi, District Sangli, within the limits of Kasegaon police station. Initially, they were living together but, eight to nine months before the incident, Jalandhar and constructed a new house wherein he was living with his wife Sarojini PW 5, his two sons and Maruti. At the time of the incident, the informant Gunvant Barge along with his mother Sushila PW 6, his brother Shrirang and other family members was living in the old house which was situated at a distance of 8 to 10 feet from the new house. The electric meter which was in the name of Shrirang had been fixed in the old house and from it, a connection was taken in the new house. Between the two houses, there was a open space in which there was a electric pole.

According to the prosecution, land gat no. 1197 Hissa no. 2 originally belonged to Narayan Dattraya Pandharpure - Joshi and Nagesh Shripad Joshi. They leased it out to Bapu Chougule who was a tenant in it. The deceased Jalindhar had filed a civil suit against Bapu Chougule in the year 1972 and during the pendency of the suit, Bapu Chougule had sold Gat no. 1197/2 to Virekar family, to which family the three appellants belonged. The suit was decided in favour of Jalindhar and the appeals preferred by Bapu Chougule were rejected both in the District Court and the High Court. Thereafter, Jalindhar received possession of the land on 1-7-1987. Thereafter, he decided to cultivate it. In the meantime, co-accused Bapu Virekar (who died prior to the commencement of the trial) obtained a stay order from this Court but, the same was vacated at the instance of Jalindhar. Thereafter, Jalindhar decided to cultivate the land with the help of Police. He obtained its help on 19-12-1987. When he went to Gat no. 1197/2, on the said date the appellants and co-accused Shivaji, Kisan and Baburao objected. The police took both the parties to the police station and granted Baburao Virekar four days time to bring a stay order.

In the meantime, on the night of 19th/20th December, 1987, this unfortunate incident took place. On the said night, Jalindhar along with his wife Sarojini PW 5, his two sons and his father Maruti was sleeping in the new house and the informant Gunvant, his brother Shrirang his mother Sushila PW 6 and some others were sleeping in the old house.

At about 1 a.m. to 1.30 a. m. Sarojini heard someone calling her husband. Consequently, she went to the kitchen and switched on the light. She woke Jalindhar who lighted a cigar. Thereafter, she and Jalindhar found that some persons were knocking the door and hammering the window. In the meantime, Maruti also got up. Thereafter, the said persons removed the door frame of the northern side opening in the Wall. She raised cries 'save save'. After the door frame had been removed, co-accused Baburao with a spear in his hand, with his head covered with a black quilt, came and inflicted a spear blow on the chest of Maruti resulting in his falling down. Someone pelted a stone which hit Jalindhar and removed an axe which was in his hand. At that juncture, she raised a loud cry. She took Jalindhar near the coach. When Jalindhar was sitting there, co-accused Shivaji, co-accused Kisan and the appellant - Bandu entered the house. Bandu and Shivaji were armed with axe and Kisan was having a sword. Shivaji inflicted an axe blow over the right ear of Jalindhar and thereafter, Bandu, Shivaji and Kisan started inflicting blows with weapons which were in their hands on Jalindhar. In order to prevent further assault on Jalindhar, Sarojini fell on his body; asked the accused persons not to assault Jalindhar ; and told them that she would hand over the papers. At this juncture, sons of Jalindhar were also crying. Do not beat papa, do not beat papa. Thereafter co-accused Baburao and the appellants Anna and Tanaji came inside. Thereafter, the appellant - Bandu and Shivaji inflicted axe blows on the head and back of Sarojini. The appellant-Anna inflicted a sword blow on her fingers resulting in two fingers being cut. She also received sword blows on her right hand. At that time, Shivaji picked up a bag which was on the cupboard. While they were about to leave, one of the accused persons broke the bulb and co-accused Baburao inflicted a spear blow on Maruti.

2A. In the meantime, the informant Gunvant Barge PW 4 and Sushila PW 6 came. Sushila saw the appellants Anna and Tanaji and co-accused Baburao near Jalindhar's door. The appellant - Tanaji inflicted an axe blow on her fore - head and Baburao a spear blow on her thigh. The said blows were given to her when she was just near the entrance of Jalindhar's house. The said persons told Sushila and others that if they tried to enter the premises, they would be dealt in the same manner as Maruti and Jalindhar. Thereafter, the evidence of Sushila PW 6 is that the appellants Anna and Tanaji and Baburao entered inside the house of Jalindhar.

The evidence of the informant Gunvant Barge PW 4 is that on hearing the cries of the sons of Jalindhar, he along with his mother Sushila tried to enter the house. The appellant-Tanaji assaulted Sushila with an axe on her head and Baburao gave a spear blow on her thigh. Thereafter, her mother fell down. He tried to enter the house but, the accused persons threatened to kill him. Thereafter, Baburao and the appellants - Tanaji and Anna entered inside the house. He went near the door which was open and saw Shivaji and the appellant - Bandu with axes and Kisan with a sword inside the house and also saw the said persons assaulting Jalindhar and saw that when Sarojini intervened, the appellant - Anna inflicted a sword blow on her hands, Shivaji gave axe blow on her head and the appellant - Bandu gave axe blows on her leg.

The evidence is that after fatally assaulting Jalindhar and Maruti and injuring Sarojini and Sushila, the accused persons ran away. According to the prosecution, the incident was seen by the said three eye-witnesses in electric light.

3. The evidence of Gunvant Barge PW 4 shows that after the appellants and others had run away, Sarojini told him about the incident. He thereafter, went to Kasegaon police station to lodge his FIR. He narrated the incident to PSI Ganpat Jadhav PW 11 and told him that his mother and Jalindhar's wife were in a precarious condition. Consequently, PSI Jadhav immediately went to village Kedarwadi and took Sushila and Sarojini to the police station.

At Kasegaon police station, PSI Ganpat Jadhav PW 11 recorded the FIR of Gunvant Barge at 5 a.m. and registered on its basis C. R. No. 107 of 1987. He thereafter, sent Sushila and Sarojini for medical examination with yadis to Primary Health Centre, Kasegaon.

4. Evidence of Dr. Vilas Aphale PW 7 shows that Sushila and Sarojini came at 5.30 a.m. and he medically examined them.

On the person of Sushila, the following injuries were found :-

"1. Incised wound left frontal scalp verticle, near centre 6 x 1 cm, bone deep, bleeding plus.

2. CLW right forearm in centre, radial order. 3 x ½ cm. superficial.

3. CLW left forearm dist. 1/3 flexo aspect 2 x ½ superficial.

4. Incised wound left thigh lateral aspect oblique in upper ½ region 4 x ¼cm. skin deep.

5. CLW left leg medial aspect lower 1/3 1 ½ x ½ cm. superficial.

6. Tenderness over left shoulder.

7. Contusion right forearm at elbow 8 x 4 cms. "

On the person of Sarojini, the injuries enumerated hereinafter were found :-

1. Incised wound right knee horizontal 4 x 1 cm skin deep.

2. Incised wound left knee horizontal 2 x ¼ cm superficial.

3. Fingers of right hand amputed -

a) middle finger at proximal phalynx.

b) Ring finger of proximal phalynx.

c) Index finger at proximal phalynx.

4. Fingers of left hand amputed.

1) Ring finger at middle phalynx

2) Middle finger at distal phalynx

5. Incised wound on little finger dorsum 1/3 x ¼ cm superficial.

6. Incised wound occipital scalp right side 8 x c sm bone deep.

7. Incised wound occipital, scalp bone deep left side 4 x 2 cm.

8. Incised wound right side back 1 x ½ cm skin deep.

In the opinion of Dr. Aphale, the injuries of the said victims were caused within six hours and injury no. 1 of Sushila and injury nos. 3, 4, 5 and 6 of Sarojini, the latter being possible by a weapon like axe or a sword were grievous in nature. He opined that injury nos. 1 and 4 on Sushila were attributable to a hard and sharp weapon and the remaining injuries to a blunt object.

5. The autopsy on the corpse of Jalindhar and Maruti was conducted on 20-12-1987.

On the person of Jalindhar, the doctor found the following ante - mortem injuries :-

"1. Incised wound above left ear, eliptica slicing injury on left parietal and temporal bone 5" x 2" widest breadth.

2. Incised wound left parietal region just above injury no.1 1½ x 1" scalp deep. Outer table of the skull exposed.

3. Incised wound extending from right cheek to 3" behind the right ear, cutting the right ear, in the middle. 6" x 5" x 6" deep.

Slicing fracture of the outer table of the occipital bone, sectioning of the medule oblongata.

4. Incised wound neck left side below and behind right ear 4" x 2 ½ x muscle deep.

5. Incised wound right below lateral aspect 5" x 2" x bone deep (ulnacut)

6. Incised wound right arm. 1 ½" x 1" x bone deep (Humerus fractured)

7. Incised wound right forearm (five in number )

a) 2 ½" x 1" muscle deep.

b) 2 ½" x 1" muscle deep.

c) 2" x ¼" x skin deep.

d) 2" x ¼" x skin deep.

e) 6" x 1 ½" x muscle deep, irregular just above wrist joint.

8. Incised wound right wrist 2" x 1" skin deep.

9. Incised wound with right little finger amputated through middle phalynx.

10. Incised wound, right scapular region lateral aspect, 1 ½" x 1 ½" x bone deep, scapula fractured.

11. Incised wound right gluteal region 2" x 1" muscle deep.

12. Incised wound right thigh, postero laterally 6" x 2" x muscle deep.

13. Incised wound left thigh laterally 2" x ¼" x skin deep.

14. Incised wound left leg (Five in number)

a) 3" x 2" x bone deep (Fibula fractured)

b) 2" x ½" x muscle deep.

c) " x 1" x muscle deep.

d) 2" x 1" x skin deep.

e) 2" x 1" x muscle deep.

15. Incised wound left wrist dorso laterally 4¼" x 2" x 3" deep.

16. Incised wound left hand dorsal aspect 3" x ½" x bone deep, carpal bones fractured.

17. Incised wound left hand, dorsal aspect. 1" x ¼" x skin deep.

18. Incised wound over dorsal aspect of wrist, at the root of little and ring fingers 2" x ½" x bone deep.

19. Incised wound over left wrist which are three in number merged into one another forming one irregular wound 4" x 2 ½" x bone deep. Comminuted compound fracture of radius and ulna, with multiple fragments.

20. Incised wound left forearm posterior lateral aspect 3" x 1" x muscle deep.

21. Two incised wounds over left leg. medially lower 1/3 region.

2" x ¼" skin deep.

2" x ¼" x skin deep."

On the person of Maruti, the doctor found the following injuries :-

"1. Stab wound 1" x ½" over the at the juncture of medial 1/3 and lateral 2/3 extending over the 1st intercostal space. Depth of the wound is 1 inch (one inch) It has not entered the thorasic court margins sharp.

2. Stab wound (L) pectoral region 2" x ½" right oblique, edges sharp entering the thorasic court.

3. Stab wound 1 ½" x ¼" over (L) loin entering the peritoneal space. No of the 12th rib (L) side.

In the opinion of the Autopsy Surgeon, the death of the deceased persons was the result of the ante-mortem injuries suffered by them.

6. The investigation was conducted in the usual manner by PSI Ganpat Jadhav PW 11 PSI Jaywant Nandurkar PW 12 and P.I. Shamrao Saloke PW 13. During the course of the investigation, recoveries were effected from some accused persons.

But, since in our view, there is overwhelming credible evidence to connect the appellants with the crime, we are not adverting to the recovery evidence.

After completing the investigation, P.I. Salokhe submitted the charge sheet against the appellants.

7. The case was committed to the Court of Sessions in the usual manner where the appellants were charged on a number of counts including 302 r/w 149 IPC. Appellant-Bandu Virekar was also charged under section 302 IPC simplicitor.

The appellants pleaded not guilty to the charges and claimed to be tried. Their defence was of denial. In defence, they examined Pandurang Barge DW 1 to show that Gunvant Barge and Sushila could not have seen the incident.

During the trial, in all the prosecution examined 13 witnesses. Three of them namely Gunvant Barge, Sarojini Barge and Sushila Barge PWs 4, 5 and 6 respectively were examined as eye - witnesses.

The learned trial Judge, in view of the evidence of Pandurang Barge PW 1, only believed the evidence of Sarojini PW 5 and convicted and sentenced the appellants in the manner stated above.

Hence, these appeals.

8. We have heard learned counsel for the parties and perused the depositions of the prosecution witnesses, the material Exhibits tendered and proved by the prosecution, statements of the appellants recorded under section 313 Cr.P.C. and the impugned Judgment. We are constrained to observe that after the utmost circumspection, we have reached the conclusion that there is no merit in these appeals.

9. In the first place, we would candidly like to observe that the learned trial Judge erred in accepting the evidence of Pandurang Barge DW 1. The evidence of this witness shows that he lives in the neighbourhood of Gunvant Barge and Sarojini. On the night of the incident at about 1 a.m., he heard the cries and when he tried to come out from the house, he was unable to do so because, his door had been latched from outside. His evidence is that after about 15 to 20 minutes, Jalindhar's son came and opened the latch. Consequently, he came out. He thereafter, found Jalindhar's son opening the latch of the house of Shrirang. (brother of Gunvant). His evidence also is that it was pitch dark. For two reasons, we are not inclined to accept his evidence. Firstly because, in his cross - examination, he admitted that for the first time, he was disclosing in his statement in the court that Jalindhar's son had opened the latch of his door and that of Shrirang. In our view, if this was so, he would have disclosed it much prior to the date of his giving evidence, which was on 10-12-1993. It should be borne in mind that the incident took place on 20-12-1987 and in our view, his non-disclosure for nearly six years is an extremely ominous and a highly unnatural conduct.

Secondly we find it strange that instead of opening the door of the house of Shrirang, his own uncle, wherein his grand-mother Sushila, uncle Gunvant and other family members were residing, Jalindhar's son would have first opened the latch of Pandurang Barge's door. The evidence of Pandurang Barge does not show that Jalindhar's family members had any affinity with him. To our mind, it became imperative for Pandurang to state that first, the latch of his door was opened because, then alone he could have said that he saw Jalindhar's son opening the latch of Shrirang's door. He could not have seen it, from his house because he stated that it was dark.

10. Once we hold that Pandurang's evidence does not inspire confidence then, the sole reason assigned by the learned trial Judge for rejecting the evidence of the injured Sushila PW 6 goes, and that of Gunvant Barge also goes. This is evident from a perusal of paras 45, 46 and 56 of the impugned Judgment.

11. The learned trial Judge has based the conviction of the appellants on the testimony of Sarojini PW 5. We find her to be a reliable witness of the incident. In para 2 of this Judgment, we have set out the prosecution story on the basis of the recitals contained in her examination -in - chief. In short, she stated that on the night of the incident at about 1 to 1.30 a.m. she heard someone knocking at the door. Consequently, she, her husband and father - in-law woke up. She found that some persons were removing the door frame on the northern side opening of the wall. She thereafter, saw co-accused Baburao with a spear in his hand inflicting a blow on the chest of Maruti and the appellant - Bandu and co-accused Shivaji, both armed with axes and co-accused Kisan armed with a sword, entering the house. Shivaji inflicted axe blow over the right ear of her husband and thereafter Bandu, Shivaji and Kisan inflicted blows on her husband. She also saw thereafter, appellant Anna and Tanaji coming inside the house ; Shivaji and Bandu giving her axe blows on legs, head and back; and the appellant - Anna assaulting her with a sword on her fingers. She further saw the appellant - Baburao inflicting a spear blow on the chest of Maruti. She saw all this in electric light.

12. We have gone through the statement of Sarojini PW 5 and we find it to be implicitly truthful. The said version of hers inspires confidence. The manner of the incident as described by her, is corroborated by the ante-mortem injuries found on the person of the two deceased persons and the injuries suffered by her. In the earlier part of this Judgment, we have re-produced the injuries suffered by the two deceased persons. Their perusal corroborates the manner of assault furnished by her. It is pertinent to mention that the injuries found on Jalindhar, Maruti, Sushila and Sarojini are incised wounds and Stab wounds and it is common knowledge that injuries of the said type could be caused by weapons like axe, sword and spear. It is necessary to point out that the genuineness of the post-mortem report has been admitted by the defence under section 294 Cr.P.C. Apart from the medical evidence, we find that assurance is lent to Sarojini's evidence by the circumstance that she is a very natural witness of the incident. The incident took place in the house wherein she was living.

Again, it is pertinent to point out that circumstances also corroborate her version. She stated that the accused persons broke the door frame and a perusal of the spot panchanama which was prepared the next morning, would show that the right side door was cut out and blood was found on it. It would also show that blood was found all around at a large number of places.

Again, we find that from her evidence that while the accused persons were about to leave, they broke open the bulb, to be credible because, a perusal of the spot panchanama would show that one broken bulb was collected by the Investigating officer. Her claim that her fingers were cut, during the course of the assault, is also corroborated by the spot panchanama, a perusal of which shows that pieces of two cut fingers were lying there.

12A. It is trite that witnesses may lie but, circumstances do not, and the circumstances mentioned in the preceeding para unequivocally show that Sarojini is not lying.

It is pertinent to mention that although Sarojini was subjected to an extensive cross-examination but, nothing could be extracted therefrom which would impair her credibility. In our view, Sarojini's evidence by itself is sufficient to sustain the conviction of the appellants.

13. But, as observed earlier, the learned trial Judge erred in rejecting the testimony of other two witnesses Sushila PW6 and Gunvant barge PW 4. The former is an injured witness. In para 2A, we have set out the manner of assault as disclosed by them.

14. Sushila PW 5 stated that on the night of the incident at about 1/1.30 a.m. she heard her grandsons saying 'save me save me' On hearing it, she along with Gunvant and others went to the house of the deceased persons. When she reached the door of the deceased persons, the appellant - Tanaji inflicted an axe blow on her head and Baburao gave a spear blow on her thigh. The appellant - Anna was standing there with a sword in his hand.

The said version furnished by her is corroborated by the injuries received by her. In the earlier part of this Judgment, we have re-produced the injuries sustained by her and their perusal shows that injuries 1 and 4 were the result of axe blows on the head and thigh respectively. In our view, the learned trial Judge erred in rejecting the evidence of Sushila PW 6 which is in complete conformity with the medical evidence.

15. It should be borne in mind that the evidence of an injured witness is entitled to the highest weightage and this is because, the injuries guarantee presence of such witnesses. And once that hurdle is crossed, the only question which survives is that of credibility of such a witness, and in the instant case, the credibility of the injured witnesses namely Sushila and Sarojini is ensured by medical evidence and other circumstances. It should be remembered that they are the natural witnesses of the incident.

16. In our view, the evidence of Sushila PW 6 lends tremendous assurance to that of Sarojini PW 5.

17. We also feel that the learned trial Judge erred in rejecting the testimony of the informant Gunvant Barge PW 4. He was also a natural witness of the incident. In para 2A, we have described the manner of incident given out by him. In short, he stated that he saw the appellant - Tanaji assaulting Sushila with an axe on the head ; Baburao inflicting a spear blow other thigh ; appellant - Bandu inflicting an axe blow on Sarojini, the appellant - Anna inflicting sword blow on the hand of Sarojini ; Shivaji inflicting axe blow on the head of Sarojini ; the appellant - Bandu inflicting blows on the legs of Sarojini and Baburao giving spear blows on the chest and abdomen of Maruti. The said version of his, is corroborated by the nature of injuries received by Sushila, Sarojini and Maruti. He is also a natural witness of the incident.

Assurance to his evidence is also lent by the circumstance that the FIR of the incident was lodged by him at 5 a.m. on 20-12-1987 and in the said FIR, the appellants are named. In our view, the circumstance that the appellants are named in the FIR or the incident, which was lodged within 3 ½ hours of the incident taking place, also lends tremendous assurance to his testimony.

As mentioned earlier, the learned trial Judge erred in rejecting his testimony.

18. Assurance to the ocular account is also lent by the circumstance that there was motive for the appellants to have committed the crime. We have set out the motive in para 3 and we do not want to over - burden our Judgment by repeating it.

19. Mr. Mundargi, learned counsel for the appellants strenuously assailed the evidence of Sarojini PW 5 on the ground that since in her cross-examination, she stated that she had come to village Kedarwadi, (wherein her husband resided) only a month before the incident, she could not have known the names of the appellants. We regret that we do not find any merit in this submission. In her examination - in - chief, she stated that she knew the appellants as also the accused Shivaji and Baburao because, she used to see them while going to work in her field.

Mr. Mundargi also urged that her solitary statement is not sufficient to sustain the conviction of the appellants. We also do not find any merit in this submission. The principle that evidence has to be weighed and not counted is ingrained in section 134 of the Indian Evidence Act which provides that " no particular number of witnesses shall in any case, be required for proof of any fact." In the instant case, Sarojini PW 5 is an injured witness whose version of the incident is corroborated by the medical evidence and circumstances and we see no impediment in the conviction being sustained on her solitary statement.

But we would like to add that we have also placed reliance on the testimony of other injured witness - Sushila PW 6 and the informant Gunvant Barge PW 4. For the reasons mentioned earlier, we also do not find any merit in Mr. Mundargi's submission that in view of the evidence of Pandurang Barge DW 1, the claim of the three eye-witnesses of having seen the incident cannot be accepted. We have earlier mentioned as to why in our view, the evidence of Pandurang Barge DW 1 does not inspire any confidence.

20. Before parting with the Judgment, we would like to point out to an error committed by the learned trial Judge. He erred in acquitting the appellants Anna Virekar and Tanaji Virekar for the offence under section 302 r/w 149 IPC and only convicting them for that under section 326 r/w 149 IPC in relation to the murders of the two deceased persons. We have seen that the murders of the two deceased persons were committed in prosecution of the common object of the unlawful assembly of which, the said appellants were members. In that view of the matter, bearing in mind the injuries suffered by the two deceased persons, the learned trial Judge should have convicted them for the offence under section 302 r/w 149 IPC. However, we are helpless as their acquittal under section 302 r/w 149 IPC has become final and the State of Maharashtra has preferred no appeal acquittal challenging it. Even by exercising suo-motu our revisional powers, in the absence of an appeal against acquittal, we cannot convict them u/s 302/149 IPC. because the prohibition contained in section 401 Cr. P.C. is that the High Court in its revisional jurisdiction, cannot convert a finding of acquittal into one of conviction.

21. For the said reasons, we confirm the convictions and sentences of the appellants - Anna Ganpat Virekar, Tanaji Ganpat Virekar and Bandu Aba Virekar on all the counts and dismiss these appeals. The appellants are on bail and shall be taken into custody forthwith to serve out their sentences. Order dated 17-1-1994 staying the realisation of fine from them is vacated.

Appeal dismissed.