JUDGMENT
1. The appellants have been convicted by III Additional Sessions Judge, Thane vide judgment dated 29-11-1997 for various offences. They have been held guilty for the offence of rioting under section 148 of IPC and sentenced to suffer R.I. for one year and to pay a fine of Rs. 200/- each in default to suffer S.I. for 15 days; they have been also held guilty for the offence of murder under section 302 read with 149 of IPC and sentenced to imprisonment for life as also to pay a fine of Rs 1000/- each in default to suffer S.I. for three months; they have been also held guilty for voluntarily causing hurt under section 324 read with 149 of IPC and sentenced to suffer R.I. for one year and to pay a fine of Rs. 200/- each in default to suffer S.I. for 15 days. In addition they have also been held guilty under section 37 read with 135 of the B.P.Act and sentenced to suffer S.I. for two months and also to pay a fine of Rs. 100/- each in default to suffer S.I. for ten days. All the sentences have been ordered to run concurrently. The appellants have been given benefit of set off under section 428 of Cr.P.C. for their detention during the pendency of the trial.
2. In all 33 accused had been put up for trial. But except the appellants all other co- accused have been acquitted. Appellants challenged their conviction and sentence in this appeal.
3. The prosecution case, in brief, is that there is two groups in the village and there was long standing rivalry between the two groups. One group was controlled by the deceased Ganpat Dalvi who was the surpanch of village Sawad and the other group was headed by Patil group. Somewhere in the year 1986 Ankush S. Dalvi brother of deceased Ganpat Dalvi was murdered.
4. On 27-3-1994 there was turmeric ceremony on account of the marriage of son of Devram Dattatraya Mali with the daughter of Shanivar Dadaji Dalvi. The turmeric ceremony was separately held at the house of Devram Mali and Shanivar Dalvi. The turmeric ceremony at the residence of Shanivar Dalvi was attended by the deceased Ganpat Dalvi as also P.w.2 Shanivar Lahu Dalvi. At the turmeric ceremony which was held at the house of Devram Mali, original accused no.6 Ravindra Patil reported to have touched the person of P.w.11 Surekha, on account of which Somnath Mhatre P.w.7 questioned him. After this incident Somnath Mhatre, Ramdas Mhatre, Haribhau Mhatre, Kantabai Mhatre and Laxman Mhatre came near the old house of Ganpat. At this stage at about 11.45 P.M. the accused armed with swords, ion bars, gupti, axe, stones are reported to have come near the old house of Ganpat Dalvi and pelted stones. The deceased Ganpat Dalvi is reported to have assaulted by original accused nos. 2,3,5,6,7,28 and 33. (the details of which we shall refer to at a later stage). Besides the assault on deceased Ganpat the others who were present there at the time of incident were also assaulted and they are, Shanivar Dalvi P.w.2 the nephew of deceased Ganpat, Ravindra P.w.3 son of deceased Ganpat, Gurunath P.w.4 son of deceased Ganpat, Ramdas P.w.5, Somnath P.w.6, Somnath Hari Mhatre P.w.7, Janabai Dalvi P.w.8 wife of deceased Ganpat and Laxman Mhatre P.w.10.
5. Initially charges were framed on 1-3-1997 but the charges were reframed on 2-7-1997. The trial court has accepted the evidence of the eye witnesses and on the basis of the evidence on record, came to the conclusion that the appellants have formed an unlawful assembly for committing murder of deceased Ganpat Dalvi and for that purpose had carried with them deadly weapon including swords, axe, iron bars, stones etc. The trial court found that original accused nos.2,3,5,6, 28 and 33 had actually assaulted the deceased and the other appellants were fully aware of the form of unlawful assembly as a result of which they are vagariously liable for the murder of Ganpat and held guilty for the charge of murder of deceased Ganpat. The trial court has also found that the prosecution had proved the charge relating to rioting under section 148 as also causing voluntarily hurt by dangerous weapon as also for offence under section 37 read with 135 of the B.P.Act.
6. We have heard the learned advocate for the appellants and the learned A.P.P. at length who took us through the evidence of the relevant witnesses.
7. The learned advocate for the appellant has basically made the following submissions before us.
i) All witnesses examined by the prosecution are partition witnesses who are animous against the appellants on account of long standing enimity and rival as also because they belong to different casts. In this connection it is also right that the witnesses are either related to the deceased or they are accused in the counter case. As a result of this as many as 33 persons were implicated without material evidence against them.
ii) The scene of offence, which is old house of Ganpat in the FIR has been shifted to in front of the house of Babu Dalvi, that there is no mention of "Dhara Mara" in the FIR nor there is any whisper in the FIR of the use of axe by the original accused no.28.
iii) The witnesses do not speak of specific roll of each accused, weapon or the parts of the body on which the assault was made.
iv) The presence of Ravindra P.w.3 and Janabai P.w.8 who are son and wife respectively of the deceased Ganpat, does not figure in the FIR and both of them gave a different version vis-a-vis the deposition of P.w.2 Shanivar Patil and infact the evidence of P.w.5 Gurunath runs counter to the evidence of P.w.2 Shanivar as according to him no assault took place in front of the house of Ganpat.
v) Though there is a story of pelting of stone in the FIR yet, the prosecution did not record that story, further no charge was framed in this respect.
vi) The discoveries alleged to have been made at the instance of appellants, cannot be relied upon since none of them have stated that they had concealed the weapon which is sought to have recovered.
vii) Lastly it is urged that in respect of the appellants, who have not taken part in the assault of deceased Ganpat or no overt act is attributed to the appellants in relation to the assault of deceased Ganpat. The prosecution has failed to prove that they share common object to kill Ganpat, as a result of which those appellants who have not taken direct part on the assault of deceased Ganpat cannot be held guilty for the murder of deceased Ganpat by virtue of section 149 IPC. ( we shall refer to this argument in detail while dealing with the case on merits).
The prosecution has not explained the injuries suffered by some of the appellants in the course of the incident, as a result of which genesis of the prosecution case cannot be believed.
8. The learned A.P.P. on the other hand urged before us that the FIR is not an encyclopedia in which minute details are required to be given; that minor contradictions in the evidence of whole mark of the truth of the prosecution case; that the incident in question is admitted and the presence of the appellants at the scene of offence is not disputed; that not only the prosecution has established the participation of all the appellants in the crime but also the form of unlawful assembly of common object of which to kill deceased Ganpat; that the appellants at whose instance the recoveries of weapons have been made, have categorically stated in the memorandum under section 27 that they had concealed the weapons and as such the recoveries have been duly established by the prosecution against the accused. According to the learned A.P.P. the trial court in an elaborate judgment, after discussing all relevant evidence on record has correctly appreciated the prosecution evidence in the light of the well settled principles and appreciation of evidence and that no interference whatsoever is called for in the judgment, which is impugned in this appeal.
9. The prosecution has examined as many as 23 witnesses in support of the charges. We shall refer to the material evidence of the witnesses upon which reliance have been placed by the prosecutioon. The FIR was lodged by Shanivar Dalvi P.w.2. Even though it is urged that prosecution witnesses are partition witnesses, they are on long standing enimity, belonging to different casts, and it has not been contended that their testimony of account of the said is required to be rejected. It is now well settled that the testimony of partition witnesses does require close scrutiny in order to find out the truth in their testimony. According to the learned advocate for the appellant, the complainant P.w.2 in the FIR had given a generalized version on the basis of imagination and the genesis of assault is not only duly established but it does not get any corroboration from the independent witnesses. P.w.2 Shanivar has stated that he along with the deceased Ganpat had gone to the turmeric (Haldi) programma at the house of Shanivar Dalvi. He along with the deceased Ganpat returned at about 11.45 p.m. to the court yard of old house of Dalvi which is occupied by him and at that time Somnath, Ramdas, Haribhau, Kantabai, Laxman came there. After sometime the accused came there with weapons namely sword, axe, iron bars, gupti stones and shouted "Dhara Mara". But as pointed out by the learned advocate, there is no reference of "Dhara Mara" in the FIR. According to P.w.2, original accused no.9 Gopinath gave stick blows to him as also accused No.4 Sainath Patil hit sticks on his knee. It is further stated that accused no.2 Pandit dealt blow of sword on the head of deceased Ganpat Dalvi. Original accused no.3 Anant dealt blows of iron bar on the person of deceased Ganpat and original accused no.28 Bhagwan hit on the head of deceased Ganpat by axe. Accused no.33 Eknath have stick blows on the person of deceased Ganpat. He also states that the others were also beaten but he could not tell which of the accused had beaten or assaulted on which part of the body of the witnesses. It has been urged by the learned advocate for the appellant that in the FIR this witness has not given details of what weapon they had and who had assaulted the deceased Ganpat, nor the parts of the body nor the number of blows were given in the FIR, nor that original accused 28 Bhagwan was having axe with him and that in the FIR there was ominous allegation with specific details as a result of which the testimony of P.w.2 cannot be accepted. We have to bare in mind that the incident took place on the date of the night and the FIR was promptly lodged. In the incident large number of accused are reported to have taken part and in such eventuality it would be rather difficult for anyone to give complete details of assault as also the number of blows or the parts of the body on which the assault was made. It may also be pointed out that in a case where large number of accused are reported to have carried out the assault, the evidence of all the witnesses who might have seen some part of the assault is required to be coordinated. The presence of these witnesses on the spot cannot be doubted. His testimony as to the assault on deceased Ganpat as also on him goes to show that he was present at the time of the incident. Besides this, it is also to be borne in mind that FIR is not an encyclopedia in which all minute details are required to be given. According to P.w.2 Shanivar he was assaulted with sticks by original accused nos.4, 7 and 9. The medical evidence shows that he had suffered abrasion over knee, joint over petella, abrasion on right illiac fossa, scrach mark on ritht scapular region, swelling and tenderness as also abrasion on ritht awleal joint. P.w.2 has also stated that accused no.2 Pandit had given a blow of sword on the head of deceased Ganpat, accused no.3 had dealt with a blow of iron bar on the person of deceased Ganpat, accused no.28 Bhagwan had hit on the head of the deceased Ganpat by axe and accused no.33 Eknath gave stick blows on the person of the deceased Ganpat. According to medical evidence deceased Ganpat had received 10 injuries on his person which read as under:
1) Incised wound right frontal skull bone 5 cm long, 3 cm deep through bone, transervers direction regular margin, fracture skull bone, sharp cutting edge.
2) Incised wound left parital region 4cm x 3 cm deep through bone, vetical direction, blood oozing, fracture skull bone-sharp cutting edge.
3) Incise wound 5 cm x 3 deep left parital parallel to the 2nd wopund vertical direction, fractured skull bone, object sharp and cutting edge.
4) Stab wound 2 cm deep x 3 cm long through skull bone,m left parital bone near 3rd wound. Cause more or less pointed weapon
- knife or dragge.
5) Lacerated woun - occupital region 3 x 2 cm through bone, transervers direction, irregular edges, object-blunt object like rod or stone.
6) Right extenal tear 5 cm long mid 1/3 transverse direction object sharp cutting edges.
7) Contusion mid 1/3 rd nopse, right side face 2 cm broad, skin black coloured, object hard object.
8) Right wrist joint - frcture dislocation no colour changes over wound.'
9) Scar mark 6 cm long resided coloured, angle of both scpula in between object -
sharp cutting edges.
10) Left ear behind contusion 3 cm broad skin black colkoured object - hard.
The assault as revealed by P.w.2 by the appellants in the course of his testimony is corroborated by the corresponding injuries on the person of deceased Ganpat
10. At this stage we would like to deal with the arguyments advanced by the learned advocate for the appellant that the scene of offence has been changed from in front of the old house of Ganpat to in front of the house of Babu Dalvi. In this connection, our attention has been drawn to the evidence of P.w.2 that according to him the incident took plae in front of the old house of deceased Ganpat and he was asaulted in the courtyard of Ganpat. The trial court had infact dealt with this aspect and found on the basis of evidence recorded that though the incident had started near the old house of deceased Ganpat yet it continued upto the house of Babu Dalvi where the deceaded had fallen. Number of witnesses were stated that the appellant has chased them from near the old house of deceased Ganpat till the house of Babu Dalvi and while they were being cheased they were assaulted. Infact, the panchanama of the scene of offence which was drawn at the instance of P.w.2 shows that the actual incident of assault on deceased Ganpat had taken place in front of the courtyard of Babu Dalvi. There is no much reliance on the submission of the learned advocate for the appellant.
11. Number of witnesses has been examined by the prosecution to support the case of the informant P.w.2 in respect of the assault by the appellants on deceased Ganpat. P.w.3 Ravindra who had also received injuries in the incident, has stated that he had gone to the old house for study. He also speaks of his father Ganpat, Shanivar, Somnath and Ramdas having come in front of the old house. He also speaks of the presence of his brother Gurunath who had also came there. He also stated that the accused came and while coming pelted stones on the old house on account of which they went towards the new house as they were being chased by them. According to him in front of the courtyard of the house of Babu Dalvi original accused no.7 Ramu gave a stick blow on his father deceased Ganpat. Accused no.2 Pandit and accused no.5 Ashok dealt with sword blows on his fathers head. Accused no.28 Bhagwan gave axe blow on his fathers head. We have already referred to the injuries found on the person of the deceased in the assault which corroborates the medical evidence on record. According to him when his father was being assaulted he threw his body on his person. There is no doubt as pointed out by the learned advocate that there is no reference of this fact in the FIR. This is a minute detail of the incident and it may not be possible to record every minute details in the FIR lodged in the circumstances referred to above. He further states that accused no.5 Ashok gave a sword blow on his head, accused no.7 Ramu gave stick blows to him. The medical evidence shows the presence of the following injuries on the person of this witness:
1) CLW 5 cm long x 3 cm deep x 2 cm long tranverse line in sharp occipital region bleeding no clinical fracture tenderness.
2) Contusion (Ft) side chest, tenderness , no swelling.
12. Thus the assault on this witness by the said accused is duly proved through medical evidence. The learned advocate for the appellant submits that the evidence of this witness cannot be believed since he does not even refer to the presence of his mother having thrown herself over the deceased Ganpat as stated by her. In an incident of this nature where large number of people are involved at the time of the incident, minor variations here and there are bound to be there. It is pointed out by the Apex Court that no case is free from such contradictions. There are no reason whatsoever to disbelieve the testimony of this witness. But not only to the test of cross examination but he could not also be shaken in the course of cross examination.
13. The next eye witness examined by the prosecution is Gurunath P.w.4 who is the son of deceased Ganpat. He has stated that his brother Ravindra P.w.3 had gone to study in their old house where his uncle stays, his father had gone to attend the function of the daughter of Shanivar and that at about 11 p.m. he heard commotion/noise from the side of his old house and as such went there. He found that accused no.2 Pandit Patil and 32 persons came out of the house of Vithal Patil and original accused no.1 Shripad Patil was hurling stones shouting "Dhara Mara" and after seeing them they started running towards their new house. In the courtyard of Narayan Patil they were captured and accused no.5 Ashok and accused 6 Ravindra were hitting him by means of sword and Accused 5 Ashok hit on his head and the sword blow of Ravindra accused no.6 hit on his left leg, below knee. He further stated that accused no.5 Ashok then stated assaulting his father Ganpat, accused no.28 Bhagwan hit by axe on the head of his father and accused no.2 Pandit gave sword blow on the head of his father. The injuries on the person of deceased Ganpat as spoken by this witness corroborates by the medical evidence. On the person of this witness Gurunath the following injuries were found:
1) CLW (Rt) parietal region 3 x 2 cm.
bleeding no clinical fracture margin regular.
2) Contusion -(Rt) shoulder joint, moments painful swelling fracture dislocation of (Rt) shoulder joint.
3) Scratch mark - 1/2 cm deep x 5 long, tranverse line, (Rt) side chest.
4) CLW (Rt) upper 1/3 of knee joint, tenderness moments painful 1 x 1/2 cm. bleeding.
5) Abrasion -(Rt) knees joint, redish colour (Lt) knee joint & (Lt) elbow joint redish colour tenderness no swelling.
There are corresponding injuries on the parital region as also on the leg below knee. It has been pointed out by the learned advocate for the appellants that though witness has stated that P.w.3 Ravindra was assaulted . he does not say so. He has merely made general statement of assault by number of accused on his brother Ravindra, Somnath and Ramdas by means of stick, sword and other weapons, and that by itself is not sufficient to discard the testimony of this witness.
15. The next witness examined by the prosecution is Ramdas P.w.5. He is not related to deceased Ganpat. He was present on the haldi programma a the house of Jayaram/Devram. He has further stated that accused no.6. Ravindra teased Surekha in the Haldi programma at the house of Devram and there was hot exchange of words between Somnath and Ravindra. Thereafter he along with others went to the old house of deceased Ganpat. Somnath had already gone prior to him to the old house. Ganpats son Ravindra, Gurunath, nephew Somnath were present there. At that time members of Patil group assembled at the house of Vithal Patil father of caused no.3. Thereafter 30/35 persons from Patil community came with weapons like iron bars, and were shouting "Dhara Mara". They came to the old house of surpanch for assault and as a result of which they started running being frightened towards the new house of surpanch. In front of the courtyard of Babu Dalvi and Narayan Dalvi. Accused no.7 Ramu gave stick blow on the head of Ganpat, accused no.2 Pandit and accused No.5 Ashok gave sword blows on the head of Ganpat, accused no.28 Bhagwat gave axe blow on the head of Ganpat. He confirms in the cross examination that the assault on surpanch lasted for 2/3 minutes and he had seen the same while standing in front of the door step of Babu Dalvi. These assaults as stated by this witness corroborates by medical evidence on record. He has further stated that at the entrance of the house of Babu Dalvi accused no.6 Ravindra hurled stone on his head. On the person of this witness the following injuries are found:
1) CLW - 5 cm deep(Rt) partial region blood oozing from wound (?) clinical fracture tenderness.
2) Contusions - over forehead, front of nose, bleeding found nose? fracture nosal bone.
3) Contusion (Rt) scapular region, tenderness no swelling no external mark.
The evidence of this is not suffered from any infirmity and there is no reason to discard his testimony.