2004 ALL MR (Cri) 2310
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.G. PALSHIKAR AND V.M. KANADE, JJ.
State Of Maharashtra Vs. Vijay Kashinath Raut & Ors.
Confirmation Case No.2 of 2003,Criminal Appeal No.1069 of 2003
28th April, 2004
Petitioner Counsel: Dr. F. R. SHAIKH
Respondent Counsel: S/Shri. M. S. MOHITE, S. S. KHATE, Ms. SHARMILA KAUSHIK, S. V. KOTWAL
Penal Code (1860), S.300 - Criminal P.C. (1973), S.366 - Murder - Conviction - Award of death sentence - Reference for confirmation - Murder over family feud for possession of immovable property - Accused persons assaulting deceased persons and complainants - Evidence of each eye-witness found to be truthful and clear - Corroborated by evidence of other witnesses - Fact that all eye witnesses deposed in unanimity about nature and extent of assault or that they were of same family - Not a ground to reject same - Assault proved to be as a result of common object of accused persons - Order of conviction thus upheld - However, case was run of the mill and not rarest of rare case - Reference to confirm death sentence rejected. (Paras 22, 25, 26)
PALSHIKAR, J. :- Being aggrieved by the judgment and order of conviction passed by the Additional Sessions Judge, Palghar in Sessions Case No.22/97, sentencing accused nos.1 and 9 to suffer imprisonment for life and awarding death sentence to accused Nos.2 to 8, the appellants in criminal appeal No.1069/03 have preferred that appeal.
2. Since the learned trial Judge imposed death sentence on accused nos.2 to 8, he made reference to this court as contemplated by section 366 of the Cr.P.C. 1973 for confirmation of the death sentence as required by that section which is registered as confirmation case No.2 of 2003. Since both the matters arise out of Sessions trial No.22/97, by consent of all concerned, we take up both for adjudication simultaneously by this order.
3. The prosecution story stated briefly is that there was enmity between the complainant group and the accused group, who are closely related to each other, due to possession over a piece of land. The fact, that there was such enmity, is not disputed by either of the party. The case of the prosecution is that the family land of Raut was partitioned years ago and share of each of the co-parceners was defined and given in possession of that co-parceners.
4. One such piece of land came to the share of one Daji Mukund Raut. He had three brothers namely Govindrao, Baburao and Ramarao. Govindrao had four sons and a daughter. The accused party also is belonging to Rauts and all the accused persons are descendents of Gangu Raut.
5. It is the case of the prosecution that the piece of land belonging to Daji Mukund Raut was mortgaged by him to Pandurang D. Raut, who cultivated that for sometime. The mortgage was thereafter redeemed by Govind Raut and he cultivated it thereafter till the date of incident. The redemption of mortgage was the cause of beginning of quarrel of two families.
6. On 27th April, 1996 around 6 to 6.30 in the evening, the accused persons assaulted the complainant party severely as a result of which assault four persons of the complainant party died. Police report was immediately lodged, investigation conducted and then the accused persons were arrested. On completion of investigation they were duly charge-sheeted which charge they denied and ultimately Sessions case No.22/97 was taken up by the learned trial Judge. In this assault, Ramakant, Prabhakar and Kishan all three sons of Govind Raut met homicidal death at the hands of the assailants. Godibai the wife of Govind Raut was also injured. According to the prosecution, around that time the accused also arrived at the scene of offence, which was a piece of land, where the complainant party was digging a well and the 9 accused persons came from different directions, encircled the complainant, asked them why they are digging the well, when the land does not belong to them and then started assaulting each male member of them. The assault was very severe and when Godibai tried to intervene, she also sustained injury and other female members present there were frightened and because of their shouts and cries, some people including Deepak son of Govind, came running to the spot, the accused then fled away from the scene of offence. The five injured persons were immediately taken to the hospital where they were declared dead. The fifth victim Godibai was given treatment. After giving immediate medical aid to the brothers, who later on died, at 2 a.m. on 28th April, 1996 Deepak lodged formal FIR in the police station on the basis of which the investigation started and was completed and the trial ended as aforesaid.
7. The learned trial Judge as indicated above, thought that it was a rarest of rare case and therefore directed imposition of death penalty to 7 out of 9 accused, granting leniency to accused nos.1 and 9 taking into consideration their tender age. This judgment of conviction and sentence has impugned before us on behalf of all the accused persons. The learned counsel Mr. M. S. Mohite appearing for all the accused and Dr. F. R. Shaikh Addl. P. P. took us through the entire evidence and made their submissions respectively.
(1) There is gross delay in lodgement of the FIR, the incident occurred at 6.30 p.m. on 27-04-1996 and the FIR was lodged on 28-04-1996 at 2 a.m. The delay is not explained. There was adequate time to the complainant party to concoct document of FIR, roping in as many as possible members of the accused party.
(2) The prosecution has failed to prove the guilt of any of the accused persons beyond reasonable doubt. All the eye-witnesses examined are very close members of the family of the deceased and therefore are favourably biased to them. Taking into consideration the grudge between the parties, it is a case where corroboration by independent evidence of witnesses who must have found present there essential for ordering and is essential for maintaining the conviction.
(3) The evidence of all the eye-witnesses gives out a strong feeling that they are tutored, and except Godibai, none was present and that after completion of this tutoring that the FIR was lodged. Therefore independent corroboration of the statement of each is necessary.
(4) Availability of independent evidence is evident from the record and evidence of other persons. Non-examination of independent witness in such circumstances, must be held fatal to the prosecution case.
(5) The evidence of each eye-witnesses apart from being identical, appears to be concocted also because the manner of their narrating the incident is almost similar, and each eye-witness has narrated the assault on one deceased. Total reading of the evidence of each witness gives a picture that the witness saw only the assault by the persons she is naming and saw nothing else. Therefore in the absence of valid and substantial corroboration of this evidence, none of the evidence of eye-witnesses can be accepted.
(6) Recoveries are liable to be disbelieved as there is no proper identification either of the clothes recovered or of the weapons recovered. There is therefore no connection between the recoveries made and the accused persons and there is nothing to show that these were the clothes which the accused wore at the time when they used the weapons for assaulting the victims.
(7) Assuming that there was some scuffle, the prosecution has failed to prove that there was any unlawful assembly. The object of the accused persons was not illegal. They had bona fide belief that the property belongs to them and is possessed by them and therefore it cannot be said that it was an unlawful assembly with common object.
(8) Since the assembly was not unlawful, according to the learned counsel it was necessary for the prosecution to prove the overt act on the part of each accused. Conviction of all the accused with the aid of section 149 IPC was therefore not possible. He therefore prayed that the judgment and order of conviction and sentence be set aside.
As a totality of the aforesaid submissions the request on behalf of the accused persons was that the judgment and conviction of sentence is unsustainable in law and should be set aside. We will deal with all these contentions while we reappreciate the evidence on record on the basis of which the impugned judgment is passed.
(1) There is no delay in lodgment of the FIR as the action of P.W.1 in loding it at 2 a.m. was very natural. Anything otherwise would be unnatural. It was the duty of P.W.1 to see that the injured are treated first, then making a complaint against the assailants. There is therefore no question of the FIR being delayed.
(2) The prosecution has examined in all seven eye-witnesses, whose testimony proves beyond doubt the involvement of the accused persons in commission of the offence. It is but natural that all the eye-witnesses would be closely related because they were doing the job of digging well in their own land. There was a marriage in the village at the same time and therefore it is only the family persons engaged in digging, who would be present and who therefore can be natural eye-witnesses to the incident. Merely because they are close relations it need not be presumed that they will be biased in favour of the accused. Apart from that the witnesses do corroborate each other and therefore their evidence deserves to be accepted as was done by the trial court.
(3) There is intrinsic evidence of all the eye-witnesses regarding presence of other witnesses and therefore this submission is unsustainable.
(4) Non-examination of independent witnesses cannot in this particular case be held to be so damage or serious as to require discarding of the ocular testimony of seven witnesses belonging to the family, four of which died and there is no reason why these witnesses should speak lie and shield the real culprits.
(5) All the eye-witnesses saw the same incident and has given he or she their version as to what he or she saw. Merely because they are substantially same, it cannot be said that the entire depositions are concocted. It is pertinent to note according to the learned A.P.P. that the conduct of the witnesses has proved to be natural by intrinsix testimony of those eye-witnesses. When a woman sees her family members being assaulted, her natural attention would be to her husband than others. This applies with equal force to a daughter witnessing assault on her father. Merely because there is no reference to the injuries caused to other persons in the testimony of these eye-witnesses, it cannot be said that their deposition is concocted. This ground is therefore deserves to be rejected.
(6) The recoveries have been duly proved, the clothes are of the accused and even if this aspect is ignored, the conviction does not become bad. He therefore prayed that the appeal be dismissed and the sentence of death as awarded by the trial court be confirmed.
(7) The contention that the object was not unlawful according to the ld. A.P.P. is wrong. The very manner in which the accused persons gathered at the spot and assaulted the victims proves beyond doubt that they had already decided the object, which was to stop digging the well and teach a lesson to the victims and it was in furtherance of the common object that they gathered at the spot, encircled the complainant and assaulted. There is therefore no question of section 149 IPC being wrongly applied.
(8) The entire evidence as a whole has to be seen for finding up the overt acts of the accused persons. A careful scrutiny of the eye-witnesses would demonstrate that each of the accused has committed an overt act. Each has used his own weapon or somebody else stick or has prevented Godabai and other eye-witnesses from saving their spouses. According to him therefore the judgment and order of conviction and sentence is correct.
10. We will examine these submissions and counter submissions comprehensively when we reappreciate the entire evidence on record on the basis of which the order of conviction was recorded by the trial Judge.
11. P.W.1 Exh.19 at record page 263 is Deepak, one of the sons of Govind Raut. He has deposed as an eye-witness to the entire incident. He has stated that there was enmity between the family of the accused and the family of the complainant because of the possession of a piece of land, which had devolved on partition to their uncle Damji and who, 6 to 7 years prior to the date of incident allowed it to be redeemed from the mortgage of Pandurang-accused no.6. It was Govind father of Deepak who redeemed it and since then the piece of land is in their possession and at the relevant time the complainant party i.e. both the male and female of Govind's family were digging a well in that piece of land. Deepak the eye-witness P.W.1 was at his house which is 200 feet away from the field where the digging of well was going on. On hearing the shouts he rushed down towards the field to see the accused party assaulting the complainant party. Because of the shouts of the women, some others also came to the scene of offence, some of whom are named by the witness. He mentions the name of all the accused persons, the manner in which they were armed and the manner in which they assaulted the complainant party, and which assault resulted in the death of four of them. He has been extensively cross-examined, both on the question of naming and on the question of his really being a witness of assault. He has candidly admitted in his cross-examination that though he saw the accused persons using the weapon for assaulting the complainant party, the assault was so brutal and fast that it was not possible to identify which of the accused exactly hit which of the victim at the time of assault. He explains how the assault took place. He carried the victim to the hospital, how they were pronounced dead, how they reached the body to home and how he lodged FIR. This aspect of his statement is corroborated by almost all the eye-witnesses and this according to the learned A.P.P. is more than adequate explanation of the delay in lodgment of FIR. However the contention of Shri. Mohite was that Deepak being busy in attending the injured people, he himself has named several others, who came there and nothing prevented any one of them from lodging the complaint immediately. It was not done because they wanted time to remedial on the issue of roping in as many of the accused as possible. We are unable to accept the submission of Shri. Mohite for the reason that all the 4/5 persons who had come on the spot after hearing the shouts, were not the eye-witness. They did not see exactly how the assault took place. They had no means to note who was the assaulting party and who was the receiving party and they also therefore were involved in giving aid to the injured. In the circumstances, we are of the view that the delay caused in lodging the FIR is not so gross or unexplained as to require rejecting of the same.
12. P.W.2 is Smt. Alka Govind Raut. On the date of the incident, she was one of the family members, engaged in digging the well. She saw all the accused persons coming by bullock cart and some of them came from other side and encircling the complainant party. She deposed as to who were armed with what weapon and tells that the entire assault began by the accused questioning the victim on the point of digging of the well by saying that "does the land belong to you". Then saying "why do you want to dig well", "stop the work" and then the assault started. She then stated that how her father was hit by accused no.6 Pandurang. She admitted in her cross-examination that she did not see exactly which of her brother hit by which of the accused as she was shocked by the assault on her father. She has also deposed that when Pandurang said that she was a witness to the assault and she should be beaten, she ran away from the place and hid herself and from there saw the rest of the assault. She has been extensively cross-examined and in her cross-examination she has very clearly stated that her father and brothers were assaulted after they had come out of the well. She therefore corroborates P.W.1 when she states that she saw the accused assaulting his father Govind. Evidence of P.Ws.1 and 2 therefore corroborate each other in relation to assault on the deceased father of P.Ws.1 and 2. Apart from the medical evidence, which substantially corroborates the testimony of these eye-witnesses, there is also intrinsic value in the evidence of both these witnesses which requires that they should be believed. There is no attempt by any of them to implicate any other accused. There is no falsehood claim by any of them that they saw the entire assault. If the submission of Shri. Mohite is to be accepted such lapse would not have occurred in the prosecution case. Such error would not have crept in prosecution case. Each witness speaks truthfully of what she/he saw. P.W.1 tells the general view of the assault as he arrived at the scene of offence when the assault was in vigorous progress. There is therefore no reason to doubt the correctness of the finding given by the trial Judge that Govind met homicidal death at the hands of the accused persons.
13. P.W.3 is Mina wife of Ramakant Raut, who is one of the victim of the assault who died immediately after the assault. She was present on 27th April, 1996 at the time when the well was being dugged. She then tells who else were present. She states that P.W.1 was watering the plants around the house. She gives the description of how the accused arrived, how they were armed, what was their abuse and how they assaulted. She states that the accused no.5 gave a blow of axe on the leg of her husband and when she tried to save she was held tightly by accused no.7 Kashinath. She requested accused no.5 not to assault her husband then accused no.3 gave axe blow on the head of her husband. She then tells that accused no.9 assaulted Ramakant with sickle as a consequence of which Ramakant fell on the ground. She then says that all the accused assaulted her brother-in-laws and father-in-laws and some one dealt a blow of stick on her mother-in-law. She then describes how the female present there shouted, how P.W.1 came on the scene of offence, how the accused ran away. She has identified the weapons as the one used by the accused in the assault. She then speaks of the injuries caused and removing them to the hospital and were declared dead and Deepak giving FIR. The witness has been extensively cross-examined and there is no variance of her statement with that of the other two witnesses and therefore it should be rejected as tutored deposition. No other evidence is forthcoming. We must note at this stage that this argument is absolute and so often repeated that it has to be only noted for being rejected. If eye-witnesses deposed in all unanimity it means that they are tutored and therefore they should not be believed, if there are contradictions in the evidence of these witnesses and those contradictions are material and therefore they should not be believed. This in our opinion is insufficient reason for disbelieving the testimony on oath by a person who was present on the scene, whose presence cannot be doubted and is proved by several other corroborative statements. We see no reason therefore to reject that the finding of the learned Judge that the deceased Ramakant was killed by the accused persons.
14. P.W.4 is Somavati wife of Prabhakar Raut, who was the third person to the incident. She narrates the incident of arrival of the accused, the manner in which they were armed, their abusive questioning regarding the digging of well and assaulting the complainant party. She has deposed that accused no.4 Mahendra gave blow of axe on both the legs of her husband and accused no.7 Kashinath gave a blow of sickle on the head and back of her husband as a result of which he fell on the ground. She also speaks of assault on her mother-in-law by one of the accused. Then she speaks of female members present there shouting and arrival of P.W.1 on the scene of offence and running away of all the accused persons from the scene of offence. This witness is also extensively cross-examined and there is nothing in her cross-examination to reveal any such admission or contradictions which would require rejection of her testimony. She admits in her cross-examination that she cannot tell as to which of the accused assaulted which of the victim because according to her she was strictly concerned with the attack on her husband. Yet she made a reference that one of the accused assaulted Godibai, but she cannot tell the name. Her evidence being tutored she could not mention the assault on one of her brother-in-law and that process could have been repeated by other witnesses. The very fact that one person deposes before the court about the circumstances in which her husband lost his life, there is no reason why such wife would forgive the name of the person who factually assaulted, why such wife who would forgive the real assailants and name her relations only because somebody in the family say so. Infact such is not even the suggestion. In our opinion therefore the conclusion drawn by the trial Judge that deceased Ramakant was killed by accused persons is a matter of common object is correct and on our reappreciation of evidence also, it does not require any other conclusion. We therefore endorse it accordingly.
15. P.W.5 is Aruna wife of Kishan, who was killed on 27th April, 1996 in a deadly assault on him and his family members by the accused party. She has stated in para 2 of her deposition that on 27-04-1996 at about 6 p.m. the entire family headed by Govind Raut was in the field of Daji and were carrying out the well digging operation. The male members and the female members were carrying out the digging work and female members were removing the soil. P.W.1 was watering the plants near the house. At that time she saw the accused approaching towards them. Then she deposes as to the abuse given by them and the assault made by them. She gives clear description of how her husband Kishan was attacked. She says that accused Suresh gave a blow of axe on the leg of her husband as a result of which he fell down and accused Rajan gave a blow of axe on the shoulder of Kishan. The witness then deposed about her requesting the accused not to make such assault, and tells us of their ignoring. She also says that at that time some of the accused hit a blow on the head of her mother-in-law. This witness also has extensively cross-examined on the question of ownership of the piece of land and visibility of her house and has very clearly stated that her house is visible from the spot and conversely spot is visible from her house. In the cross-examination she has very clearly stated that after Deepak arrival, the accused ran away and to which side they ran away she cannot state. She was sitting near her husband who was severely injured. In answer to several questions in the cross-examination the witness has given straight forward answer. She has stated that she cannot say which accused was armed with what and exactly which accused gave blow on which of the victims. The criticism of evidence of this witness is similar to those of the above four witnesses and for the same reasons we see no reason to disbelieve this witness also. We may like to note at this stage as in consideration of the submissions made by the learned counsel that the evidence of this eye-witness is liable to be rejected as it is tutored and there are no contradictions. The witness does not depose about how the assault took place on others. All these submissions are not acceptable because of the reason that if the witnesses were tutored they could have been taught to mention one or more assault on one or more brother-in-law that they saw while witnessing their own husbands being slaughtered. It is but natural by any human being to concentrate only on saving or attempt to save the life partner. We cannot accept the criticism that these witnesses have not stated as to who were the real assailants and that we have no reason to believe that they were not present. Infact the entire defence is that the victims were carrying on well digging operation on the land which was in possession and occupation of them and it is a straight forward claim by the defence that the land was mortgaged to Pandurang and was in his possession and the complainant party, who was aggressive. There is therefore no doubt that the digging operations were in progress and that there was quarrel and accordingly the submission that they were not present at the scene of offence and therefore they should be disbelieved cannot be accepted.
16. P.W.6 is Jyotibai, mother of victims Kishan, Prabhakar and Ramakant and wife of Govind Raut the 4th victim. She is injured. Her presence on the scene of offence cannot be doubted and she has deposed to how the assault on her husband Govind took place. She tried to save her husband and in the process sustained injury and ultimately her husband breathed his last in that assault. Her testimony is natural. Her cross-examination is scrupulous. She also describes how the accused arrived, how they were armed and how they assaulted. Merely because she does not speak of assault on other sons of hers, she cannot be disbelieved. We have already stated above the reasons for which we agree with trial Judge in appreciation of the evidence of these witnesses and in coming to the conclusion that Govind Raut met homicidal death at the hands of the accused.
17. P.W.7 is Shakuntala wife of Deepak P.W.1. She was present at the digging of the well and she saw the accused coming and so assaulting the victims and she took her children and hid behind the bandh of the land. She also saw the accused persons assaulting the male members and the female members were raised shouts and as a result of which Deepak came running and after his arrival accused ran away. She is therefore eye-witness to the fact that accused persons arrived at the scene of offence, they were armed with weapons that they started assault on the male members and she hid behind the bandh of the land. Her deposition therefore clearly shows that there is no question of this witness being tutored. She is not telling how the assault on any of the victim took place. She gave top priority to save herself and her children and therefore she hid. Has she been tutored she would have named some of these persons. She is therefore liable to be considered as an independent witness and she does not involve any particular object with any particular assault on a particular person who does give a general description of the entire assault which wiped out almost entire members of her family. The contention of the learned counsel for the defence that the prosecution evidence is liable to be rejected for lack of adequate corroboration is liable to be rejected. On acceptance of the evidence of this witness infact, all contentions raised by the counsel for the defence that the evidence of prosecution is liable to be negatived as adequate corroboration to the evidence of these persons comes from P.W.7. Merely because they belong to one family their evidence cannot be rejected. That completes the account of re-appreciation of evidence of eye-witnesses.
18. P.W.8 Deepak is the panch witness and has proved the inquest panchanama of the body of Govind Exh.31, Ramakant Exh.32, Kishan Exh.33 and Prabhakar Exh.34. He proves the inquest panchanama which describe the injuries on the body of the victim and those injuries substantially correspond to the injury deposed to by the medical officers. This therefore another piece of intrinsic evidence which corroborates the ocular testimony of witnesses i.e. P.Ws.1 to 7. There is no challenge to the testimony of these witnesses. It will thus be seen that P.Ws.2 to 5 saw the assault, saw their life partner being killed and therefore deposed before the court only in relation to that P.Ws.1 and 7 are the persons who are members of the family who saw the entire family being killed in their presence. The testimony of P.Ws.1, 2 and 7 is therefore in corroboration to the testimony of P.Ws.3 to 6. Further corroboration is available from exhs.31 to 34, which are inquest panchanama where injuries of the victims were described and those injuries are find place when the eye-witnesses say that they saw the accused assaulting their partners. This is another substantial piece of corroboration which is available on record. The submission that this uncorroborated testimony of interested witnesses is therefore liable to be rejected. It was rightly rejected by the trial Judge and we affirm the findings of trial Judge for the reasons mentioned hereinbefore.
19. P.Ws.9, 10, 11 are panch witnesses. They have turned hostile and we need not therefore reappreciate what they said or they ought to have stated. Evidence of P.W.12 Anant only proves that there was marriage in the town and the accused persons were present at that marriage at about 5 p.m. The assault has taken place at 6.30 p.m. The distance is not much. Otherwise the evidence of this witness is also inconsequential. P.W.13 also turned hostile and therefore required to be ignored.
20. That takes us to the very important evidence of P.W.13 of Daji. He is the person who became the exclusive owner of the piece of land which formed the bone of contention ending with the merciless assault on the victim by the accused. He very clearly states how the partition has taken place, how this piece of land came to be shared, how it is mortgaged with Prabhakar, how Govind redeemed it, how the land was in possession of Govind and he has also deposed to the fact that he did give consent to dig the well in that land by Govind. His evidence is unchallenged. There is therefore no substance in the contention raised on behalf of the defence that the land was in possession of the accused party. Hence evidence of P.W.13 Daji proves beyond doubt that the possession of the property mortgaged with Pandurang was given to the complainant and complainants were digging well on that piece of land with the consent of P.W. Daji. The contentions of Shri. Mohite the learned advocate appearing for the accused that it was a piece of land in their possession and therefore it is a defence of property stands negatived by this evidence. It will be further seen from the evidence of this witness Daji that the land was earlier mortgaged to the accused. It was redeemed by the victims and it was with the permission of Daji that the digging of well had commenced. This therefore is adequate evidence to prove the possession of the victims and aggression by the accused. If this evidence of P.W.13 is read conjointly with the evidence of eye-witnesses, it will be clear that the possession was with the victims and their act of digging well was squarely challenged by the accused persons and assault followed thereafter. If the accused claim possession of the land as with them for several years, it is a fact within their specific knowledge and they could have produced on record adequate documents on record like 7/12 extract to show that the field was in their possession at the crucial time. The accused persons have failed to do so. The prosecution has proved the possession of the victims by the testimony of eye-witnesses as also by the evidence of P.W.13 Daji and in these circumstances, it cannot be said that the accused parties parted with the common object of teaching a lesson to the victim party and all acts thereafter has done in furtherance of this common object.
22. A careful scrutiny of the evidence of P.Ws.1 to 7 who are eye-witnesses and P.W.13 who was the original owner of the land in dispute, the complaint lodged earlier by the accused persons regarding felling of a tree by the complainant party will go to show that since the complainant had lodged a complaint a day prior to the incident, complainant had fallen a tree on the land belonging to the complainant. If that was so they would have at that very time complained of criminal tress pass also. The document of complaint regarding felling of tree is conspicuously silent on this aspect. Apart from that as observed above, we are of the opinion that the fact of physical possession of the land in question is a fact within the knowledge of the accused that they could have produced documentary and oral evidence to show that the land was factually in their possession and it was complainants party who has tress passed on the land. Failure on the part of the accused to lead any evidence in this effect negatived their contention that the possession was with the accused party. We see no reason to defer from the findings recorded by the learned trial Judge in this regard. We confirm the same and reject the contentions that the application of section 149 IPC was wrong, conviction under section 302 read with section 149 IPC was bad as no overt act was proved. We have already discussed above how the overt act, if necessary to be proved is proved.
23. P.W.15 is another panch who proved the recovery of weapons by accused Pandurang. P.W.16 is Dr. Ravi and P.W.20 is Dr. Milind who conjointly performed post-mortem on the dead bodies. They described the injuries which corresponds to the blows given by the accused as stated by eye-witness. They proved that the death of each of them was homicidal. They proved post-mortum reports and thus the prosecution has successfully proved that the four persons met their homicidal death by injuries fully described by these two doctors. There is therefore no reason to interfere with the findings of the learned trial Judge that it was a homicidal death of all these four persons and it was intentionally caused by the accused. We therefore affirm that finding of the trial Judge.
24. P.W.21 is a doctor who examined two of the accused persons and has proved that there were injuries on the person of the accused which were more than three days old. Therefore those injuries were obviously caused prior to the date of assault. However the contention is that those injuries were caused at the hands of the victims, if that is so, the presence of the accused on the scene of offence as alleged by the eye-witness cannot be doubted. Infact there is no reason whatever that the incident should not be held to have occurred in the manner it is described to have been seen by the eye-witnesses. The investigating officers are examined. Their testimony proves some of the documents which remained unproved and it was on the basis of this evidence that the learned trial Judge came to the conclusion of guilty. We affirm each of his finding. That takes us to the question of correctness of the sentence imposed by the learned Judge.
25. The entire circumstances as revealed by the prosecution witnesses clearly show and have proved that the accused approached the complainant's piece of land with pre-determined object of preventing them from digging any further and teaching them a lesson. They together came on the land encircled the complainant party, questioned their right to dig a well and systematically commenced the attack so injuring the victims to keep open the argument that assault was of unintentional. The contention is in effect that the accused may have had the common object of teaching the complainants party a lesson for trespass. They had no intention to kill any of the persons who died as will be seen from the injuries caused to the victims. In our opinion this submission also has no basis because the assault was so planned and so executed and that this argument would be open to the accused party. The blows given at the lower end and the intensity of blows itself is enough to show the fact that the accused has intention to kill the victims.
26. This is a case of a family feud over possession of immovable property. Such feuds are not rare. Such assault resulting in one or more deaths are not rare. We may treat the assaults for the purposes of taking vengence are also not rare. Such property disputes do happen at regular intervals all over country and it therefore cannot be said that this is a case which can be called rarest of rare in terms of the dicta of the Supreme Court of India. We need not reproduce or repeat the concluded law by the Supreme Court of India in this regard. In our opinion, this is not a fit case to award death sentence because it is not rarest of rare. Infact in our opinion it is a case which can be called run of the mill case. We therefore reject the reference under section 366 of the Cr.P.C. 1973. We however confirm the judgment of conviction under sections 147, 148, 302, 324, 504, 506 r.w. sec. 149 of IPC and we direct that all the accused nos.1 to 9 should suffer rigorous imprisonment for life for all the offences which they are committed. All sentences to run concurrently. Hence the following order.
1. The order of conviction passed in Sessions trial case no.22 of 1997 is hereby confirmed and Criminal Appeal No.1069 of 2003 challenging its correctness is hereby dismissed.
2. Confirmation Case No.2 of 2003 and reference under section 366 of the Cr.P.C. 1973 is not accepted and the death sentence is not confirmed and instead.
3. We convict all the accused Nos.1 to 9 under section 302 read with 149 of IPC and sentenced to suffer rigorous imprisonment for life for the murder of Govind, Ramakant, Kisan and Prabhakar.
4. All accused are convicted under section 323 of IPC for causing hurt to Smt. Godibai and are sentenced to suffer R.I. for a period of six months each.
5. In view of the fact that the accused persons are sentenced to suffer R.I. for life, we see no reason to record separate conviction for other offences for which the learned trial Judge found them guilty.
Appeal accordingly disposed of.