1 CRIM.APPEAL NO.132-90 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPEAL NO.132 OF 1990 The State of Maharashtra .. Appellant Versus (1) Kamlakar Shrawan Thakur (2) Pandurang Chandrakant Mhatre (3) Ramesh alias Raman Chandrakant Mhatre (4) Parshuram Chandrakant Mhatre (5) Ashok Yadav Mhatre (6) Damodar Vasant Gharat (7) Prakash Pandurang Thakur (8) Ramchandra Ragunath Mhatre (9) Mahesh Shankar Mhatre (10) Maininath Sankar Gharat (11) Mukund Moreshwar Mhatre (12) Rupendra Shripat Mhatre (13) Nitin Kamlakar Thakur (14) Prakash Madhukar Mhatre.. Respondents (Orig. Accd.Nos.1 to 6, 8,10 to 13 and 17 to 19) Shri P.A. Pol, APP for the State Shri Sachin Shetye, Advocate for Respondents CORAM : D.G. DESHPANDE, & S.R. SATHE, JJ. DATED : 10 th APRIL, 2007 ORAL JUDGEMENT :- (PER S.R. SATHE,J.) 1. The State of Maharashtra has preferred this appeal against the judgement and order passed by the 2nd 2 CRIM.APPEAL NO.132-90 Additional Sessions Judge, Raigad-Alibag in Sessions Case No.175 of 1988 whereby all the accused (accused Nos.1 to 19) were acquitted of the offences punishable under sections 147, 148, 149, 302 r/w. 149, 307 r/w. 149, 326 r/w. 149 and Section 302, 307, 323, 326 r/w. 34 of IPC. 2. The brief facts giving rise to this appeal are as under :- All the accused and the prosecution witnesses are the residents of village Phunde, Taluka-Uran, District : Raigad. Deceased Suresh was also resident of the same village. All the accused persons were from 'Shetkari Kamgar Paksha' i.e. Peasants Workers Party (hereafter referred to as PWP) while the deceased and all the injured persons and eye witnesses were belonging to 'Congress(I) Party'. The relations between the accused group and the group of the prosecution witnesses were strained due to party politics. In the year 1988, the prosecution witnesses were office bearers of various committees and they had made several improvements in the village. As a result of the same, the accused persons who were previously in power were jealous of the prosecution witnesses and hence they were searching for the opportunity to degrade the 3 CRIM.APPEAL NO.132-90 prosecution witnesses. Several criminal cases were lodged by the abovementioned two groups against each other. 3. On 2nd April, 1988 there was annual festival and fair at Gurabadevi Temple situated near village Phunde. As per the tradition various ornaments were put on the idol of goddess Gurabadevi. The entire temple and its surrounding was illuminated with electric lights. At night villagers had gathered for singing songs and dancing. Practically, all the prosecution witnesses had taken active part in the management of the said festival. The celebrations were carried out on that day till midnight at about 12-30 to 1-00 am and thereafter, most of the villagers left the temple. However, thereafter, the prosecution witnesses and some other persons in all about 15 to 20 had stayed in the temple for the purpose of 'Jagran' and with a view to keep a watch on the ornaments put on the idol. Some of those persons were chit-chatting by sitting in the Sabhamandap while some were playing cards and some were resting. At about 3.00 to 3.15 am, accused No.3 Ramesh Mhatre went to the temple and after just looking at the temple and situation at the said place left the temple without having any talk with anybody. It is the 4 CRIM.APPEAL NO.132-90 prosecution case that within 15-20 minutes thereafter, the accused No.3 returned to temple alongwith 15-20 persons. All of them were armed with some weapons like iron bars, swords, pharashi, sticks etc. Finding all the persons chit-chatting and playing cards, the accused persons all of a sudden started attacking the prosecution witnesses in the manner they like. The accused Nos. 2 and 3 gave iron bar blows on the back of Narendrakumar Mhatre. He, however, escaped from the said place and ran to the village. The accused persons were shouting ^/kjk&/kjk*] ^ekjk&ekjk*. They assaulted Suresh Gharat, Sudhin Mhatre, Namdeo Mhatre, Laxman Mhatre, Gopal Thakur, Mahendra Mhatre and Mahesh Bhoir who were present at the said place. Accused No.12 assaulted Suresh with sword while others assaulted him with sticks and iron bars and he sustained serious injuries. The accused persons had in fact chased Suresh when he was proceeding towards Uran-Panvel Road and then assaulted him in severe manner. After such attack the accused persons ran away from the said place. 4. After receiving one blow on his back the complainant Nandkumar Mhatre rushed towards village and shouted for help by saying that PWP Party Workers assaulted their party members (Congress-I). Naturally, 5 CRIM.APPEAL NO.132-90 all the villagers ran towards temple. Nandkumar went to Navasheva Police Station at about 4.15 am. When he reached there, he found Namdeo Yadav Mhatre sitting in the Police Station. After seeing Nandkumar at the said place, PSI Tamaichekar accompanied Nandkumar Mhatre towards the temple. He had also taken with him other two police constables. When they were going to village Phunde in a jeep, on way, they heard some hue and cry and naturally, PSI made query with those persons and he was informed that injured persons have been removed towards hospital. PSI and complainant therefore proceeded towards Uran Hospital. But they were informed that about 6 persons who were seriously injured have been sent to Sion Hospital, Bombay. Then PSI went to the place of offence. When he was proceeding to Navasheva Police Station from that place he saw one ambulance in which there were some injured persons. He also came to know that Suresh Atmaram Gharat is dead. Then complainant Nandkumar Mhatre went to Navasheva Police Station and lodged complaint Exh-31. 5. On the basis of the complaint filed by Nandkumar Mhatre, Police registered crime at C.R. No.17 of 1988 at 6.00 am against the accused for the offences mentioned above. He then went to the hospital and drew 6 CRIM.APPEAL NO.132-90 the inquest panchanama and sent the dead body for postmortem. He also prepared the panchanama of place of offence. He attached the clothes of the deceased and recorded statements of several witnesses who had seen the incident. Thereafter, the investigation was taken over by the Asstt. Commissioner of Police. He carried some investigation. But again, on his transfer, the investigation was handed over to other Police Officer. After registration of the offence Police made several attempts to search the accused. However, they were not found in the village. Police also searched them in nearby villages but the accused were not found. They were absconding. However after few days, accused were arrested one after other from time to time. It is the prosecution case that when the accused were in the police custody some of them made statement before police that they would produce weapons and accordingly weapons were discovered and attached as per the provisions of section 27 of the Indian Evidence Act. After receipt of the postmortem report and completion of investigation Police submitted charge-sheet against all the accused persons in the Court of JMFC Uran for the offences mentioned above. 6. Finding that accused were charge-sheeted for 7 CRIM.APPEAL NO.132-90 the offences punishable under sections 307 and 302 of IPC which were exclusively triable by the Court of Sessions, the learned JMFC committed the case to the Sessions Court Raigad-Alibag. The learned 2nd Additional Sessions Judge Raigad Alibag framed charge Exh-1 against all the accused for the offences mentioned above. The charge was read over and explained to the accused. All the accused pleaded not guilty and claimed to be tried. From the suggestions put to the prosecution witnesses and the statements of the accused recorded under section 313 of Cr.P.C., it appears that the defence of the accused was of total denial. The accused No.2 took a plea of alibi. All the accused contended that they are falsely implicated, they being members of opposite political party. 7. In order to prove the charge levelled against the accused, the prosecution examined as many as 19 witnesses consisting of PW-1 Sadashiv Patil, Circle Inspector Exh-28, PW-2 Complainant Nandkumar Mhatre Exh-30 injured eye witness, PW-3 Vitthal Mhatre Exh-34, another injured person PW-4 Sudhir Mhatre Exh-36, PW-5 Namdeo Mhatre Exh-37, PW-6 injured eye witness Laxman Mhatre Exh-43, PW-7 injured eye witness Gopal Thakur Exh-44, PW-8 injured eye witness Mahendra Mhatre Exh- 8 CRIM.APPEAL NO.132-90 45, PW-9 injured eye witness Vishwanath Mhatre Exh-47, PW-10 injured eye witness Mahesh Bhoir Exh-48, PW-11 Dr. Bhujang Bawa Medical Officer, Uran who examined injured witness and also carried out autopsy Exh-49, PW-12 Police Jamadar Gajanan Sawant Exh-56, PW-13 pancha witness Anil Mhatre Exh-62, PW-14 another pancha witness Madhukar Mhatre Exh-64, PW-15 Pancha witness Krishna Mhatre Exh-65, PW-16 Hasuram Gharat pancha witness Exh-66, PW-17 Asstt. Commissioner of Police Shantaram Waghmare Exh-73, PW-18 Police Inspector Tamaichekar Exh-77 and PW-19 PSI Mahdav Jagtap Exh-85. Prosecution produced complaint Exh-31, medical certificates of the injured persons at Exh-50, 51,52,53, postmortem report Exh-55, panchanama of the place of offence Exh-32, panchanama regarding discovery, inquest panchanama Exh-67, C.A. Report Exh- 83. As against this, the accused No.2 examined witness Balkrishna Tambade Exh-94 to prove his defence of alibi and another witness by name Abdul Shaikh, driver of the ambulance at Exh-99. 8. After considering the evidence adduced by the prosecution the learned Trial Judge came to the conclusion that there is no convincing evidence to show that the prosecution witnesses had seen the accused 9 CRIM.APPEAL NO.132-90 while assaulting with weapons and the prosecution has failed to prove beyond reasonable doubt that there was an unlawful assembly the common object of which was to commit murder and to do other alleged acts. The learned Trial Judge therefore held that the prosecution has failed to prove the charges levelled against the accused. Naturally, he acquitted all the accused of the offences with which they were charged. 9. Being aggrieved by the said judgement and order, the State of Maharashtra filed this appeal against all the accused. However, from the perusal of the record it appears that this Court (CORAM : S.P. KURDUKAR & M.H. SALDHANA,JJ.) admitted the appeal only against original accused Nos. 1 to 6,8,10 to 13 and 17 to 19 and rejected the leave against accused Nos.7,9,14,15 and 16. During the pendency of this appeal, the original accused No.1 has died and hence appeal against him stands abated. 10. In this appeal before us, the learned APP has urged only 3 points. Firstly, he submitted that the learned Trial Judge has not properly appreciated the evidence on record and has wrongly held that the injured eye witnesses had in fact no sufficient 10 CRIM.APPEAL NO.132-90 opportunity to see the assailants. Secondly, he canvassed before us that the learned Trial Judge ought to have taken into consideration the fact that the complaint was lodged practically immediately after the incident and as such merely because the accused and witnesses were of the rival political party, it should not have been held that evidence of eye witnesses is not reliable. Lastly, he submitted that the learned Trial Judge ought to have made an attempt to swift the truth from the falsehood if any. He should not have acquitted all the accused but ought to have convicted at least those accused persons including accused No.12 against whom there was convincing evidence. He, therefore, submitted that the appeal be allowed and the accused be convicted for the offences charged against them. 11. As against this, Shri Sachin Shetye, learned advocate for the original accused Nos.2 to 14 and 17 to 19 supported the judgement and order passed by the learned Trial Judge. He submitted that though it is not disputed that some incident took place at the relevant time, there is no cogent evidence to show that the accused in the instant case assaulted Suresh and other injured persons. He further canvassed before us that 11 CRIM.APPEAL NO.132-90 there is discrepancy in the medical evidence and the ocular evidence and as such the accused have been rightly acquitted by the Trial Court. He, therefore, submitted that the appeal be dismissed. 12. It is an admitted fact that the accused and prosecution witnesses are the residents of village Phunde, Taluka : Uran and were known to each other for several years. Accused belong to PWP while the deceased and prosecution witnesses were of Congress (I). It does appear that criminal cases were filed against each other. It is also not in dispute that in the year 1988, the prosecution witnesses and persons from Congress(I) were on several committees. Admittedly, on 2nd April, 1988 there was festival and fair at Gurabadevi temple in the village and for that purpose, the temple was illuminated with electric lights. It is also admitted that on the night of 2nd April, 1988 there was entertainment programme and people had gathered there for singing and dancing and the said programme was over by about 12.30 or 1.00 midnight and thereafter, some villagers including prosecution witnesses were waiting at the temple. It is also not in dispute that on that day at night some incident and commotion took place at the temple and at that time, Suresh died. It is 12 CRIM.APPEAL NO.132-90 nobody's case that death of Suresh is accidental or suicidal. The prosecution witnesses have stated that Suresh was assaulted with sword and other weapons and he succumbed to the said injuries. Even Dr. Bhujang Bawa Exh-49 has stated that on 03/04/1988, he carried out the postmortem on the dead body of Suresh and at that time, he noticed the following external injuries as mentioned in column No.17 of the postmortem notes Exh-55. Column No.17 :- (1) Incised wound over the left Iliac fossa, verticle skin deep, 8 x ½ cm. (2) Incised wound over the head 4 cms. above the skull occipital vertical 3 x ½ cm. bone deep. (3) C.L.W. Over the right upper arm in the middle on lateral side (4 x 4 cms.) with fracture of the right humerus middle third. (4) C.L.W. just below the right tibial tuberasity 3 x 3 cm. irregular with fracture of tibia and fibula U/3. (5) C.L.W. over the right shin over lower third on anterior side 2 x 2 cms. with a fracture of tibia and fibula lower third. (6) Fracture of left radius and ulna lower third. He has described all injuries are antemortem. He has also opined that the death was caused due to multiple fracture over the body with haemorragic shock. Thus, from this evidence it is crystal clear that the death of Suresh is homicidal. 13 CRIM.APPEAL NO.132-90 13. It is the prosecution case that at the relevant time, the accused persons had formed an unlawful assembly the common object of which was to commit murder of Suresh and make an attempt to commit murder of other prosecution witnesses and to cause grievous injuries to them with deadly weapons. So, it is first necessary to find out whether there was an unlawful assembly ? if so, what was the common object of the same ? and whether all the accused or any one of them or some of them were the members of the said unlawful assembly ? 14. At the outset it must be mentioned that if we see the cross examination of all the prosecution witnesses and even the judgement of the learned Trial Judge we find that it is not even suggested that in the night between 02/04/1988 and 03/04/1988 at about 3.30 am or so no any incident took place at Gurbadevi temple. It is also not suggested that at the relevant time five or more persons had not gathered at the place of offence. So, one thing is certain that there was an assembly of more than five persons at the place of offence. The crucial question is whether the said assembly was an unlawful assembly and whether the 14 CRIM.APPEAL NO.132-90 accused were the members of the said unlawful assembly. It must noted that in the instant case, the prosecution has examined as many as nine witnesses and practically, all of them had sustained some injury during the alleged incident. So normally, there is no reason to hold that the injured eye witness would leave aside the real culprits and falsely implicate some other persons in such grave offence merely because they belong to rival political group. 15. It is pertinent to note that the learned Trial Judge has not specifically recorded the finding that the alleged eye witnesses were not at all present at the place of offence. He has however disbelieved them mainly by observing that they must not have been in a position to see the incident as there was dark. However, there is abundant evidence on record to show that as it was a festival day of Gurbadevi temple, the entire temple and its vicinity was illuminated with electric lights. It is also not the case that all those lights were switched off at the relevant time. On the contrary, all the witnesses have categorically stated that as per the usual practice about 20 to 25 persons were waiting in the temple for 'Jagran' and for keeping watch on the idol of goddess as goddess was adorned 15 CRIM.APPEAL NO.132-90 with ornaments. The reasoning given by the learned Trial Judge for discarding the testimony of 9 injured eye witnesses is very strange. He has observed :- “The clear impression that is created in my mind is that because of the sudden attack by the accused, all the prosecution witnesses ran helter and skelter and everybody tried to run away from the accused to save his life. All the witnesses deposed that they were lying or chit-chating or just resting or playing cards in the temple at the time of the incident. All this shows that the prosecution witnesses must be in a very leisurely mood and were completely tired when the accused suddenly attacked them. This also shows that the prosecution witnesses must not be in a position to see who actually assaulted them. This is a broad picture that is projected by the evidence of all the eye witnesses. In such state of physical and mental tiredness, no witness will be able to tell specifically who actually assaulted him unless he sees from a very short or legible distance the attacking persons.” 16 CRIM.APPEAL NO.132-90 16. The above mentioned reasoning of the learned Trial Judge is not at all rational and logical. It is really very difficult to swallow the same and in our considered view, this reasoning and approach of the learned Trial Judge to the evidence was utterly wrong. When he started with such wrong illogical impression he was bound to reach to a wrong conclusion. Had it been the case that all those persons who were in the temple were sleeping and all of a sudden in dark some persons attacked them then it could have been said that the persons who were present were not in a position to give details of the account of what had happened at the said place. But here it is not so. 17. PW-2 Nandkumar Shankar Mhatre (Exh-30), complainant in the instance case has stated that on that day he was waiting in the temple for Jagaran alongwith other persons. At about 3.00 to 3.15 am accused No.3 Ramesh came to the temple, had a look at the said place and then went away and thereafter, he returned within 10-15 minutes alongwith 15 to 20 other villagers. He has also stated that the said persons were from his village and known to him. Similarly, PW-5 Namdev Mhatre Exh-37 has also stated that at the 17 CRIM.APPEAL NO.132-90 relevant time, accused No.3 came there alongwith about 20 persons. Prosecution witness No.6 Laxman Mhatre Exh- 43, PW-7 Gopal Thakur Exh-44, PW-8 Mahendra Mhatre Exh- 45, PW-9 Vishwanath Mhatre Exh-47 and PW-10 Mahesh Bhoir Exh-48 have stated that there were about 5 or more persons at the said place and most of them were having weapons with them and after reaching there they started assaulting the persons who were in the temple. The evidence of these witnesses who are injured eye witnesses is certainly sufficient to prove beyond reasonable doubt that at the relevant time there was an unlawful assembly and the common object of the same was certainly to assault the people with deadly weapons and cause grievous hurt and make murderous attack. 18. The main question is whether the evidence on record is sufficient to prove that the accused were the members of the said unlawful assembly. While considering this question one has to bear in mind that in law it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, section 149 of IPC makes it clear that if an 18 CRIM.APPEAL NO.132-90 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 committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment described by Section 149 is in a sense vicarious and does not always proceed on the basis of that the offence has been actually committed by every member of the unlawful assembly. It has been so held by the Apex Court in Masalti V/s. State of U.P. AIR 1965 Supreme Court 202. However, unfortunately, we find that many a times the trial Courts without taking into consideration the above basic principles of section 149 appreciate the evidence and naturally reach to a wrong conclusion. 19. Bearing in mind the admitted facts and circumstances of the case and the above mentioned principles of law, let us scan the evidence on record. Prosecution witness Nandkumar Mhatre Exh-30 is the complainant. He has stated that on that day at about 3 to 3.15 am he had seen initially accused No.3 coming to the said place and thereafter within about 15-20 19 CRIM.APPEAL NO.132-90 minutes he came alongwith other 15-20 villagers and they were holding weapons like iron bars, sticks, rods, swords and they started assaulting the people who were sitting in the Sabhamandap of the temple. He has also stated that out of them accused Nos. 2 and 3 were holding iron bars and they assaulted on his back. Somehow he ran and escaped from the said place and went to village. He has further stated that while going he had also seen that accused Nos. 1,2,3,4,12,13 and 18 were present there with weapons. He canditely admitted that he belongs to Congress(I) Party. However, the evidence of this witness is disbelieved by the learned Trial Judge by saying that there is no medical certificate to support his case and when he himself had received some beating and was proceeding towards village from the place of offence how it can be said that he was in a position to identify the other accused persons. In fact, it must be noted that there is sufficient evidence on record in the form of station diary Exh-61 wherefrom it is very clear that this witness had been to Navasheva Police Station which is at a distance of about 2 k.m., at 4.20 am and at that time, he found that other person who was also present in the Sabhamandap had already rushed to the Navasheva Police Station and was giving information about the 20 CRIM.APPEAL NO.132-90 same incident to police. It is not the case of Nandkumar that he received a blow heavily or that as a result of the same, he was sustaining any serious injury. So, when entire incident had taken place in such fashion and when others had received