2012 ALL MR (Cri) 2869
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
NARESH H. PATIL AND T.V. NALAWADE, JJ.
The State Of Maharashtra Vs. Arjun Bharmaji Waghchoure & Ors.
Criminal Appeal No. 247 of 1995
13th March, 2012
Petitioner Counsel: Mrs. V.A. SHINDE
Respondent Counsel: Mr. A.S. SHELKE h/f. Mr. S.K. SHELKEMr. R.V. GORE
(A) Penal Code (1860), Ss.302, 325, 149 - Murder or grievous hurt - Deceased 60 years old and suffering from cervical spondylitis - Fracture to cervical spine of old man may take place even due to jerk sustained on the neck - Deceased succumbed to crush injury on spinal cord - Held accused can be convicted not for murder or under S.304 but can be safely punished under S.325 r.w. S.149. (Paras 35, 40)
(B) Penal Code (1860), S.149 - Unlawful assembly - If object of unlawful assembly is ascertained, it becomes irrelevant that there is no specific evidence to prove that particular member of unlawful assembly caused particular injury. (Para 39)
(C) Penal Code (1860), S.149 - Unlawful assembly - Spot of incident situated in locality where all the accused and prosecution witnesses were living - Tension between political fractions prevailing in locality - When some incident happens number of curious spectators also assemble - In such a situation association of persons present needs to be closely established by prosecution. (Para 41)
Virsa Singh Vs. State of Punjab, 2007 ALL SCR (O.C.C.) 33 =AIR 1958 SC 465 [Para 36]
State of Haryana Vs. Prabhu & Ors., AIR 1979 SC 1019 [Para 40]
Masalti Vs. the State of U.P., 2008 ALL SCR (O.C.C.) 52=AIR 1965 SC 202 [Para 40]
Muthu Naicker & Ors. Vs. State of Tamil Nadu, AIR 1978 SC 1647 [Para 41]
Badruddin Rukonddim Karpude & Ors. Vs. State of Maharashtra, AIR 1981 SC 1223 [Para 41,42]
Dhanna Vs. State of M.P., AIR 1996 SC 2478 [Para 42]
Shri Gopal & Anr. Vs. Subhash & Ors., AIR 2004 SC 4900 [Para 42,43]
Samghaji Hariba Patil Vs. State of Karnataka, 2007 ALL MR (Cri) 538 (S.C.) =AIR 2007 SC 28 [Para 42,43]
State of Punjab Vs. Karnail Singh, AIR 2003 SC 3609 [Para 42]
T. V. NALAWADE, J. :- The appeal is filed by the State against the judgment and order of Sessions Case No. 37/1992, which was pending in the Court of Additional Sessions Judge, Ambajogai, District Beed. The Trial Court has acquitted all the accused/respondents of the offences punishable under sections 302, 325, 147, 148, 149 and 34 of Indian Penal Code ("I.P.C."for short). The appeal is admitted against all the respondents. Today this Court is deciding the appeal filed by the convicts from counter case, bearing Criminal Appeal No. 152/1995 also. Both the sides are heard.
2. The case of prosecution is that in Ambejogai there are two political rival groups of political party, Republican Party of India ("R.P.I." for short). One fraction is follower of Shri. Gavai and other fraction is follower of Shri. Prakash Ambedkar. Most of the workers of these two fractions are residents of Dhobighat, Ambejogai. The complainant Sambhaji Jogdand is a leader of Gavai group. The accused persons/respondents belong to opposite group and one Professor More is a leader of this group. Due to the political rivalry, the relations between the two groups were strained at the relevant time.
3. The incident took place on 22.3.1992 at about 9.00 to 9.30 p.m. near Samaj Mandir situated at Dhobighat. Some youngsters of group of Ambedkar were practicing Lazim near Samaj Mandir and they were creating noise. Some of them were pelting stones at the houses of the persons of Gavai group. Sambhaji went there to request the boys not to create noise. Suryakant Bansode and Mohan Vaidya followed Sambhaji and they also tried to convince the boys to behave well. The boys and the accused started quarreling with Sambhaji and others of Gavai group. Then the incident took place.
4. Accused Bharat, Vishnu, Bhima and Sunil were holding knives. Two sons of Janabai (Sunil and Jitu Bade) were holding sticks. These persons of Ambedkar group started assaulting Suryakant and Mohan with the weapons. Other accused started pelting stones at the persons of group of Gavai. Some of the accused were holding axes also and such weapons were also used in the incident.
5. In the incident Mohan was assaulted with knife and other weapons. Suryakant sustained injuries due to weapons like axe, knife etc. Deceased Nivrutti was father of Suryakant and he was assaulted with axe, sticks etc. Suryakant and Nivrutti collapsed on the ground and police shifted them to hospital. After few days, Nivrutti succumbed to the injuries. During the incident, the lights of that locality went off. Sambhaji informed police about the incident on phone and police of Ambejogai Police Station rushed to the spot. Only after arrival of police, the assailants ran away.
6. Sambhaji Jogdand gave report about the incident and crime at Cr. No. 143/92 came to be registered in Ambejogai Police Station for offences punishable under sections 307, 324, 147, 148, 149 etc. of I.P.C. Nivrutti succumbed to injuries on 2.4.1992 and then the crime came to be registered for the offence punishable under section 302 of I.P.C. also. Panchanama of the spot situated near Samaj Mandir was prepared and the chargesheet came to be filed for the aforesaid offences against the respondents. In respect of the same incident, other side gave report against the prosecution witnesses and some other persons of Gavai group and crime at Cr. No. 142/1992 came to be registered for offence punishable under sections 307, 325, 149 etc. of I.P.C. Chargesheet also came to be filed against the prosecution witnesses and others in that crime.
7. Charge was framed for aforesaid offences against the respondents. The prosecution examined in all 12 witnesses. The Trial Court has acquitted the respondents by holding that the prosecution has failed to prove that death of Nivrutti was direct result of assault made on him in the incident. It is further held by the Trial Court that versions of prosecution witnesses are not consistent with each other and so, they cannot be believed. The Trial Court has given other reason that injuries sustained by the accused persons are not explained by the prosecution.
8. In the appeal, it was submitted for the State that when the incident is admitted and when there is substantive evidence to prove that unlawful assembly was formed and respondents were members of an unlawful assembly, not much weight can be given to so called inconsistencies found in the evidence of prosecution witnesses regarding the role played by each accused. The advocates of respondents supported the decision of the Trial Court.
9. There is both direct and circumstantial evidence. Sambhaji (PW 3) gave report about the incident at about 00.30 hrs. of the same night. It is brought on record in his evidence that it is he, who informed police during the incident and so police rushed to the spot. In view of this circumstance, atleast some importance needs to be given to the version of Sambhaji and the report given by him to police. The evidence of Police Officer Naik (PW 12), who investigated the case, shows that he shifted the injured persons including prosecution witness Suryakant to hospital. In the evidence of the Police Officer, it is brought on the record that Mandakini, a lady of opposite group, had also given report in respect of the same incident against the prosecution witnesses and the crime at Cr. No. 142/92 was registered against the prosecution witnesses and others for offences punishable under sections 307, 149 etc. of I.P.C. The evidence of police officer shows that the same spot panchanama was used in both the counter cases and he made investigation of both the cases. These circumstances need to be kept in mind at the time of appreciation of the evidence of prosecution witnesses.
10. The tenor of the cross examination of Sambhaji (PW 3) shows that the defence has tried to show that Sambhaji was not present on the spot till the end and he left the spot when the incident was going on. The tenor of the cross examination of other injured witness, however, does not show that the defence is disputing the presence of the witness on the spot at the relevant time.
11. Janardhan (PW 1) and Deepak (PW 4) both the panch witnesses on the spot panchanama are examined by prosecution, but they have turned hostile. The spot panchanama is proved in the evidence of Police Officer Naik (PW 12). The spot panchanama was prepared on 23.3.1992 in the morning. But the evidence of Police Officer shows that there was no scope left for tampering with the spot of offence by the police. The evidence of Police Officer and the spot panchanama at Exh. 82, show that the articles like pieces of bricks, pieces of glass bangles, some Chappals and some sticks were lying on the spot. Exh. 82 shows that there were blood stains also. In view of the aforesaid circumstances, Exh. 82, can be used safely in the present case and there is no reason to disbelieve the Police Officer in respect of the evidence given on Exh. 82. In the cross examination of the witnesses, it is brought on the record that some accused were injured in the incident. Though the Trial Court has considered this circumstance against the prosecution, this circumstance also corroborates the case of prosecution that these persons were involved in the incident or atleast they were present near the spot at the relevant time. When such incident takes place and two rival groups, fractions are involved in the incident, not much can be made out due to the circumstance that the prosecution has not explained the injuries sustained by the accused persons. The circumstance that counter case is filed against the prosecution witnesses in respect of the same incident is sufficient to explain injuries.
12. Sambhaji (PW 3) has given evidence that he went first to the place of offence. He has deposed that he requested the boys not to create noise as students of that locality were studying. He has deposed that the boys picked up quarrel with him. He has deposed that the persons of his side like Nivrutti (deceased), Suryakant (son of Nivrutti) and Khanderao Waghchoure and others came there.
13. Sambhaji (PW 3) has given evidence that aforesaid persons of their side tried to convince the boys not to play Lazim, but the boys started quarreling with them and they started assaulting these persons of his side. Sambhaji has given specific evidence that accused Ramchandra Saravade, Bhimrao Ramchandra Sarawade, Bhagwan Ramchandra Sarawade, Bharat Jogdand, Jitendra Vede, Balu Prabhakar Bade, Prabhakar Bade, Sunil Prabhakar Bade, Mukund Sonawane, Shriram Sonawane, Kailash Huke, Arjun Waghchoure and other persons of opposite party were present on the spot. Sambhaji has given evidence that some persons of other side were instigating others by saying as "beat them, beat them" [Mara re, Mara re]. Sambhaji has depose that these persons of opposite side then gave beating to the persons of his side by using weapons like iron rod, cycle chain and knives. Sambhaji has deposed that some persons of opposite side were pelting stones at them. Thus, the evidence is given that more than five persons were involved in the incident though some of them are not named by Sambhaji. He has admitted in the evidence that around 100 persons had also gathered there to watch the Lazim practice.
14. Sambhaji (PW 3) has given evidence that accused Bhima and Bhagwan gave beating to Nivrutti (deceased). He has deposed that Shriram, Laxman, Mukund, Balu, Sunil and Prabhakar gave beating to Suryakant. Sambhaji has deposed that Arjun, Dharmaji and Sidharth gave beating to Khandu Waghchoure. He has deposed that Professor Shripati Jogdand was giving instigation by saying, "beat them, beat them". Sambhaji has deposed that as soon as he was manhandled, he ran away, towards the house of Girwalkar for making phone call to police to call them. He has deposed that after his phone call police came to the spot within 15 to 20 minutes. Sambhaji has given account of injuries sustained by the persons of his side in the incident. In the evidence of Sambhaji, report at Exh. 80 is proved.
15. The evidence of Sambhaji (PW 3) shows that he did not sustain any injury in the incident. He has admitted that accused Kachru is not a resident of Dhobighat. He has admitted that accused Subhash is not a resident of Dhobighat and accused Ravindra is employed in Medical College and Hospital, Ambejogai. In the cross examination, he has admitted that when the incident started, he ran to the house of Girwalkar to give phone call to police. He has admitted that he took 5 minutes to contact police. He has admitted that after contacting police, he did not return to the spot and he returned to the spot only after arrival of the police.
16. In the evidence of Sambhaji (PW 3) and Investigating Officer Naik (PW 12), the material omissions in relation to the previous version of Sambhaji given in F.I.R., are proved. In F.I.R., Exh. 80, Sambhaji had given the names of only Bhagwan, Bhima, Bharat, Sunil and Balu, who are facing trial, as the persons who took part in actual assault by using weapons. It was informed that Bharat, Bhima and Sunil were holding knives and Balu and two sons of Janabai were holding sticks. Only to that extent, the evidence of Sambhaji, if given against these persons can be considered and Exh. 80, can be used for corroboration purpose.
17. Sambhaji (PW 3) had informed in F.I.R. at Exh. 80, the names of many other accused by saying that the other accused were pelting stones. Thus, general allegations were made against most of the accused in Exh. 80. He had informed that in his presence only Suryakant and Mohan Vaidya were assaulted with weapons. But, in the Court he has given evidence that Nivrutti was assaulted in his presence. These omissions are duly proved. Thus, the evidence, particularly, given in respect of assault made on deceased Nivrutti is hit by omission and that cannot be used for basing conviction. Similarly, the specific evidence given against accused Shriram, Laxman, Mukund and Prabhakar that they gave beating to Suryakant is hit by omission in F.I.R. The evidence given against Arjun, Dharmaji and Sidharth that they gave beating to Khandu Waghchoure is hit by omission in F.I.R. Specific evidence given against Professor Shripati Jogdand that he was giving instigation, is hit by omission in F.I.R.
18. The aforesaid discussion of the evidence and Exh. 80 show that the evidence given by Sambhaji (PW 3) only against Bhagwan, Bhima, Bharat, Sunil and Balu has some support of F.I.R. and that too in respect of their presence on the spot and some involvement in the incident. The evidence of Sambhaji as against other accused is vague in nature and even in the past in F.I.R. he had not attributed specific role to them.
19. The aforesaid circumstances, the omissions in previous version of Sambhaji and the admissions given by Sambhaji that he left the spot after starting of the incident to inform the police and he returned to the spot only after arrival of the police have created probability that Sambhaji left the spot immediately after starting of the incident and he could have only glimpse of some persons of opposite side, who were gathered there. The probability is created that Sambhaji had no opportunity to witness the incident in which Nivrutti was assaulted. So only to the limited extent in respect of the involvement of accused Bhagwan, Bhima, Bharat, Balu and Sunil, the evidence of Sambhaji can be used by prosecution.
20. Yuvraj (PW 5) has given evidence that he was present on the spot before the beginning of the incident and he had taken away the boys of his party, who were practicing Lazim prior to the starting of practice by other side. He has deposed that when he heard commotion from his house, he reached to the spot. He has given evidence that he watched the incident from some distance, from the lane of his house. He has given evidence that after he left the spot with the boys of his side, the group of Professor More started practicing there.
21. Yuvraj (PW 5) has given evidence that in the incident accused Bharat, Balu, Bhagwan, Bhima and Sidharth were assaulting Nivrutti with sticks. He has deposed that he saw that Suryakant and Mohan were already lying on the ground due to the injuries sustained by them. He has given evidence that some other persons were instigating the assailants.
22. Police statement of Yuvraj was recorded on 23.3.1992. Though he did not sustain any injury in the incident, his house is situated near the Samaj Mandir and in ordinary course, a person like Yuvraj would rush to the spot when such incident takes place. In cross examination of Yuvraj (PW 5) and Investigating Officer Naik (PW 12), it is brought on the record that before police, Yuvraj had not given specific version that accused Bhima, Bhagwan and Bharat were assaulting Nivrutti with sticks. The names of these persons were given in previous statement as assailants, but the allegations made against them were vague. Thus, though the specific evidence given against aforesaid persons is hit by material omission, the evidence of Yuvraj is of use to prove the presence of these persons and participation of atleast three accused in the incident.
23. Suryakant (PW 8) has given evidence that first, accused Shriram, Devidas, Prabhakar, Sidharath and Bhagwan had come to his shop on that night and in threatening mood, they had enquired with him, as to why he had given report against them to police. Suryakant has deposed that he had informed to these persons that he had not given any such report. He has deposed that similar enquiry was made by these persons with prosecution witness Mohan and Mohan had promised to withdraw the report given by him against these persons. Suryakant has deposed that after some time of this incident, he closed his shop and he started towards his house. He has deposed that his father Nivrutti was in his company.
24. Suryakant (PW 8) has deposed that when he and Nivrutti reached near the house of accused Prabhakar, the accused Sunil Bade and Bhagwan Saravade assaulted him. He has deposed that Bhagwan gave blow of knife and the blow hit his back. He has deposed that when Sunil attempted to give blow of axe, he held the axe. He has deposed that some companions of these accused persons assaulted him by sticks and stones and he sustained injuries in the incident. He has not identified other accused and so, it can be inferred that he wants to say that some persons who could not be identified also assaulted him.
25. Suryakant (PW 8) has further deposed that after assaulting him, the accused Bhagwan, Bhima and Bharat and their companions assaulted his father with weapons like axes and sticks. He has deposed that due to the assault, he and his father collapsed on the ground.
26. In the cross examination of Suryakant (PW 8), the defence has made an attempt to show that in police statement Suryakant had not made mention about the incident which took place in his shop. However, there is no such omission and there is some wrong recording of evidence. Other omissions are, however, duly proved which include the witnessing of assault made on Nivrutti. In police statement dated 23.3.1992 Suryakant had not stated that blow of knife was given by Bhagwan to him and blow had hit his back. He had not stated before police that Sunil had attempted to give blow of axe. These material omissions are duly proved by the defence. However, no contradiction is brought on the record in respect of the evidence that Bhagwan was present on the spot with knife and Bhagwan had participated when Suryakant was assaulted.
27. The evidence of Suryakant (PW 8) shows that many persons had filed applications to police in the past that he was giving threats to them and he was creating terror. He has admitted that father of Bhagwan namely Ramchandra Saravade had filed report against him that by showing knife Suryakant was giving threats to him. He has admitted that externment proceeding was started against him. He has admitted that the case of outraging modesty of a woman of his locality was also registered against him. He has also admitted that one case for illegal possession of bullets is also filed against him. Though he has such background, the aforesaid circumstances and the other evidence show that the presence of Suryakant on the spot at the relevant time can be safely inferred. He did sustain injuries in the incident.
28. Mohan Vaidya (PW 7) has turned hostile. No part of the evidence of Mohan Vaidya is of use to the prosecution. Some evidence is given by the prosecution on recovery of weapons from accused Jitu Bade and Sunil Bade. In view of the nature of evidence given by prosecution and the persons named by them, the evidence of recovery of weapon given against these two persons is of no use. There is no circumstantial check to the evidence given against these accused persons and so many other accused persons by the prosecution witnesses. In this case, the recovery of sticks cannot be held as incriminating circumstance against Jitu and Sunil. There were no blood stains on the sticks. Similarly, there is no need to discuss the evidence of Dnyanaba (PW 6).
29. Dr. Tulshidas (PW 10) is examined to prove that prosecution witnesses had sustained injuries in the incident. He has given evidence that Suryakant (PW 8) was examined by him on 22.3.1992 at about 10.00 p.m. and he found following injuries :-
(i) C.L.W. over scalp left parietal region,
(ii) C.L.W. over base of right thumb,
(iii) C.L.W. over right lower scapula,
(iv) abrasion over back
(vi) contusion over right index finger,
(vii) abrasion over left scapula middle portion,
Injury certificate at Exh. 104 is proved in the evidence of doctor. It is consistent with the oral evidence of doctor. All these injuries are described as simple injuries and are said to be caused by hard and blunt object. The evidence shows that the age of the injuries was within 24 hours. This evidence of doctor corroborates to the evidence of Suryakant that he was assaulted in the incident. So many injuries sustained by Suryakant show that he has not given specific and correct account of assault made on him.
30. Dr. Goli (PW 9) is examined to prove the P.M. report in respect of the dead body of Nivrutti. There is the evidence of inquest panchanama and all the witnesses have given evidence that Nivrutti succumbed to the injuries on 2.4.1992. In the evidence of Namdeo (PW 2), inquest panchanama is proved as Exh. 78. Evidence of Dr. Goli shows that there were following injuries on the dead body.
(i) contusion over right mastoid region,
(ii) stitched wound over the middle finger of the left hand,
(iii) contusion over the anterior aspect of the right arm,
(iv) Abrasion over the back, posterior aspect of the right shoulder on the supra scapula region etc.,
(v) On internal examination doctor found contusion under the scapular region, fracture of cervical spine at the level of C-5 with dislocation C-4, C-5. There was also injury like local crush of spinal cord and there was evidence of cervical spondylosis.
Doctor has deposed that all the injuries were ante mortem in nature and the death took place due to fracture of cervical spine with spinal cord injury with fracture of middle phalynx-bone of middle finger of the left hand. The P.M. report at Exh. 100 is proved in the evidence of doctor and it is consistent with the evidence of doctor. In the cross examination, the age of the injuries is given as within 8 to 12 days. Thus, his evidence is consistent with the prosecution case. The Trial Court has held that the death of Nivrutti was not direct result of injuries, but no reasoning is given in that regard. This Court holds that the evidence is sufficient to prove that the death of Nivrutti took place due to injuries sustained in the incident.
31. In cross examination, Dr. Goli (PW 9) has admitted that Nivrutti was suffering from cervical spondylosis when he was alive. He has further admitted that fracture to cervical spine of old man having age of 60 years may take place even due to jerk sustained to the neck. Nivrutti was aged about 60 years. Doctor has deposed that other injuries can be caused in simple fall. Further admission is given by the doctor in cross examination that if cervical spondylosis is not properly treated, the patient may loose balance and he may fall when he is in standing position. Though there are such admissions from the doctor, the evidence shows that the doctor has ruled out that fracture of cervical spine was old one. The evidence shows that there was crush injury to spinal cord where the fracture of spine was caused. Though there is no specific evidence brought on record to the effect that surface injury No. 4 which was on the back correspondences to the internal injury, the location of surface injury No. 4 shows that surface injury No. 4 was caused in this region. Thus, not much can be made out from the aforesaid admission given by the doctor in the cross examination and the evidence is sufficient to prove that Nivrutti sustained aforesaid injuries in the incident and he succumbed to the injures.
32. n the cross examination of Investigating Officer (PW 12), it is brought on the record that 5 to 6 persons were injured in the incident and he had received information that there was fighting (Maramari). It is brought on the record that for opposite side one Smt. Mandakini gave report immediately after the incident and crime at Cr. No. 142/92 was registered for offences punishable under sections 307, 149 etc. of I.P.C. against the prosecution witnesses and others of the side of complainant Sambhaji. It is brought on the record that in the said case, prosecution witness Sambhaji, Suryakant and Yuvraj are accused. In view of these circumstances and the nature of evidence given by the three witnesses to the extent already mentioned, these three witnesses can be believed.
33. The evidence already discussed shows that the incident did take place near Samaj Mandir situated at Dhobighat, Ambejogai. The evidence on record is also sufficient to infer that more than five persons from each side were involved in the incident. Samaj Mandir is a public place. Houses of most of the accused and prosecution witnesses are situated in the vicinity of the spot of offence. Admittedly, there was previous enmity. In view of nature of evidence and the circumstances discussed above, it is not possible to infer that one group was aggressor and other group was defending. Persons from both the groups sustained injuries and so, in such cases, the prosecution is not expected to explain the injuries sustained by the accused persons. Both the sides wanted to prove their strength and to establish that they are superior.
34. The evidence discussed does not show that unlawful assembly so formed had the object to finish any particular person from other side. The evidence is sufficient to prove that some persons from the side of the accused did form unlawful assembly and it is further possible to infer that the object of the unlawful assembly was to give beating to the persons of the other party and the object was to teach them the lesson.
35. In this case, the medical evidence does not show that any sharp/dangerous weapon was used against the prosecution witnesses. Suryakant (PW 8) sustained many injuries, but all the injuries were simple in nature. Deceased Nivrutti sustained fracture of cervical spine at the level of C-5 which resulted in death. It cannot be said from the evidence on record that there was knowledge to other members of unlawful assembly that such injury may be caused in the incident. There is no evidence to show that the injury found on the back of Nivrutti was caused intentionally by any accused. In view of these circumstances, the persons of unlawful assembly cannot be convicted for offence of murder or offence punishable under section 304 of I.P.C., but they can be safely convicted for offence punishable under section 325 r/w. 149 of I.P.C. for causing such injury to Nivrutti and they can be convicted also for offence punishable under section 323 r/w. 149 of I.P.C. for causing simple injuries to Suryakant.
36. For the State one case reported as AIR 1958 SC 465 : [2007 ALL SCR (O.C.C.) 33] [Virsa Singh Vs. State of Punjab] was cited. On the basis of the observations made in this case, it was submitted that conviction is possible for the offence of murder. Facts and circumstances of each and every case are always different. The facts of the reported case were altogether different. So, this Court holds that this case is of no use to prosecution to prove that murder of Nivrutti is committed by the two accused.
37. Though many names are given by the prosecution witnesses, due to previous enmity, the possibility of false implication needs to be ruled out in such a case. In such a case, the Court is expected to separate the truth from falsehood. More importance needs to be given to the evidence of Yuvraj and Suryakant in this case as their evidence show that they were present on the spot throughout. Sambhaji, the complainant was present there initially, but there is possibility that he left the spot after starting of the incident and so only to the limited extent, to ascertain the presence of persons, who had gathered there, his evidence can be used. It also needs to be kept in mind that Suryakant and Yuvraj have admitted that during the incident lights went off.
38. As already observed, evidence of Yuvraj (PW 5) can be believed to the extent that accused Bhima, Bhagwan and Bharat were assaulting deceased Nivrutti. His evidence shows that Suryakant was lying on the spot and so, he had no occasion to witness, who assaulted Suryakant. The evidence of Sambhaji (PW 3) with names of accused Bhagwan, Bhima and Bharat in F.I.R. can be used as it is consistent with the evidence of Yuvraj (PW 5). If the material omissions, contradictions in the evidence of Suryakant (PW 8) are considered, his evidence can be relied upon only to the extent that accused Bhagwan was present on the spot and Bhagwan participated, when attack was made on Suryakant. Only this part of evidence is not hit by contradiction. Thus, the evidence is convincing as against the accused Bhima, Bhagwan and Bharat only. It can be said that there is no sufficient evidence given as against the other accused to infer that they were also members of unlawful assembly. This Court holds that accused Bhima, Bhagwan, Bharat and other persons of their side, (who are not identified by the prosecution witnesses) had formed unlawful assembly and they committed the offences punishable under section 325, 323 r/w. 149 of I.P.C.
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
This section has two parts viz. (i) the offence committed in prosecution of common object must be one which is committed with object to accomplish common object and (ii) if the offence committed is such as members knew was likely to be committed. Thus, if the object of the unlawful assembly is ascertained, it becomes irrelevant that there is no specific evidence to prove that the particular member of unlawful assembly caused particular injury. In the present case, the prosecution has proved that only accused Bhima, Bhagwan and Bharat were members of unlawful assembly with other unidentified persons and so these three persons can be convicted.
40. Before parting of the judgment, it needs to be mentioned that no witness has given evidence that any person of other side had intention to finish Nivrutti. Doctor has described the injury, but no evidence is given that such injury is sufficient in ordinary course of nature to cause death. Nivrutti died after few days of the incident and not on the spot. In the case reported as AIR 1979 SC 1019 [State of Haryana Vs. Prabhu & Ors.], in similar circumstances, the Apex Court held that the conviction is possible under section 325 r/w. 149 of I.P.C. In the case reported as AIR 1965 SC 202 : [2008 ALL SCR (O.C.C.) 52] [Masalti Vs. the State of U.P.] the Apex Court has observed that if it is brought on record that a person was member of an unlawful assembly, it is not necessary to show further that he committed some illegal overt acts in pursuance of the common object of the assembly. So, this Court holds that accused Bhima (accused No. 12), Bharat (accused No. 20) and Bhagwan (accused No. 21) can be safely convicted for aforesaid offences, punishable under section 325, 323 r/w. 149 of I.P.C. In view of the discussion already made, this Court holds that there is no necessity to give separate sentences for offences punishable under sections 147 and 148 of I.P.C.
41. The evidence as against the remaining accused is very vague and general in nature. The evidence is hit by material contradictions and the evidence cannot be used in view of the circumstances already discussed. The evidence shows that the spot is situated in the locality, where all the accused and most of the prosecution witnesses are living. The population of this locality is around 2 to 3 thousand and they are all members of R.P.I., though of different fractions. In such a locality, when something unusual occurs, moreso, where the local community is fraction ridden, when there is always tension between the fractions, a good number of persons appear on the scene not with a view to participate in the incident, but as curious spectators. When many persons are involved in the incident and many are gathered there as spectators, the presence of some persons on the spot even with the assailants cannot be treated as sufficient to infer that such person are also member of unlawful assembly. In such a situation, association of such a person in unlawful assembly needs to be clearly established by the prosecution. (Relied on the cases reported as AIR 1978 SC 1647 [Muthu Naicker & Ors. Vs. State of Tamil Nadu] and AIR 1981 SC 1223 [Badruddin Rukonddim Karpude & Ors., Vs. State of Maharashtra]).
(i) AIR 1981 SC 1223 [Badruddin Rukonddim Karpude & Ors., Vs. State of Maharashtra],
(ii) AIR 1996 SC 2478 [Dhanna Vs. State of M.P.],
(iii) AIR 2004 SC 4900 [Shri Gopal & Anr. Vs. Subhash & Ors.], and
(iv) AIR 2007 SC 28 : [2007 ALL MR (Cri) 538 (S.C.)] [Samghaji Hariba Patil Vs. State of Karnataka].
This Court has already quoted the observations made in the case of Badruddin cited supra and they are used in this case. In the second case of Dhana cited supra, the powers of Appellate Court are discussed. The Apex Court has observed that, "the appellate Court has to bear in mind : first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal." It is further observed that, "every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the appellate Court also." There is no dispute about this proposition. In the case reported as AIR 2003 SC 3609 [State of Punjab Vs. Karnail Singh], the Apex Court has made it clear that, "Generally order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. But there is no embargo on reviewing the evidence. A miscarriage of justice needs to be prevented, which may arise from acquittal of the guilty which is no less than the conviction of an innocent. If the judgment of acquittal is unreasonable, it is compelling reason for interference. When some admissible evidence is ignored, the appellate Court is expected to interfere in the decision of acquittal." In view of this position of law, this Court holds that interference in the judgment is required atleast for conviction of three accused viz. Bhagwan, Bharat and Bhima.
43. In the case of Shri Gopal cited supra, for defence the effect of inconsistency in the evidence of prosecution witnesses and the effect of omissions in previous versions are discussed. In the last case of Samghaji Patil, [2007 ALL MR (Cri) 538 (S.C.)] cited supra, the Apex Court has again discussed the powers of appellate Court. There is no dispute about the propositions made in the two reported cases, but the facts of these two reported cases were altogether different. So, this Court holds that the judgment and order of the Trial Court acquitting the accused Bhima, Bhagwan and Bharat (accused Nos. 12, 19 and 20) needs to be set aside and they need to be convicted for offences punishable under sections 325, 323 r/w. 34 of I.P.C.
44. When this Court asked the counsel appearing for respondents to make submissions on the point of sentence, the counsel submitted that accused Bharat Jogdand (accused No. 20) is dead. This case was reserved for judgment on 23rd February 2012 and today first time such statement was made before this Court. In view of the submission, this Court asked the learned A.P.P. to confirm as to whether accused Bharat is really dead. A.P.P. was given time till the second session and now, the A.P.P. submits that she has confirmed that accused Bharat is dead. In view of this submission, the appeal as against accused Bharat is to be treated as abated and the hearing is given on the point of sentence only in respect of accused Bhima Saravade (accused No. 12) and Bhagwan Saravade (accused No. 19).
45. Hearing was given to both the sides on the point of sentence. Today itself this Court is deciding the other appeal viz. Criminal Appeal No.152/1995 filed by the convicted accused in counter case. In both the proceedings the parties have filed affidavits of some injured persons to show that the parties have compromised the matter out of the Court and from 1992 no untoward incident took place due to the dispute, which was there between the parties at the relevant time. This Court has gone through the affidavits.
46. The persons of both the sides were supporters of two fractions of political party R.P.I. and due to the political rivalry, incident in question took place. It is good that they have compromised the matter amicably out of Court. One chance needs to be given to them to improve the conduct and to lead peaceful life. That will be in the interest of society also. It was submitted for the respondents that benefit of provisions of section 4 of the Probation of Offenders Act, 1960 can be given in view of the nature of dispute. This Court holds that such benefit needs to be given. Hence, the order.
(I) The appeal as against Bhima Ramchandra Saravade, (accused No. 12) Bhagwan Ramchandra Saravade (accused No. 19) is partly allowed.
(II) The judgment and order of Trial Court acquitting them of all the offences is set aside. These three appellants stand convicted for the offence punishable under section 325, 323 r/w. 149 of I.P.C. But, Instead of sentencing these respondents, the benefit of provisions of section 4 of the Probation of Offenders Act, 1960 is given to them. They are to execute bond of Good Behaviour for the period of one year in the amount of Rs. 20,000/- (Rupees twenty thousand), each, without surety and they are to appear and receive the sentence when called upon during such period. During this period, they are not to commit similar offence and they are to maintain peace and observe good behaviour.
(III) Each respondent, mentioned above, is also to pay Rs. 5,000/- (Rupees five thousand), as the cost of the proceeding and after depositing the amount, the cost is to be credited with Government.
(IV) There is no order of supervision through District Probation Office.
(V) The bonds are to be executed within one month and the cost amount is to be deposited during the same period.
(VI) The appeal as against accused Bharat Pralhad Jogdand (accused No. 20) is abated.
(VII) The appeal as against the remaining respondents stand dismissed.