( 1 ) crap95.98 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 95 OF 1998 WITH CRIMINAL APPEAL NO. 96 OF 1998 WITH CRIMINAL APPEAL NO. 108 OF 1998 * * * * * CRIMINAL APPEAL NO. 95 OF 1998 1. Gahininath s/o. Nagnath Bondre .. Appellants Age. 33 years, Occ. Agri., [ori.accused Nos. R/o. Village Karadgaon, 1,3,4,15,16,18 & Tal. Pathardi, Dist. Ahmednagar. 21] 2. Namdeo s/o. Bapu Kasbe, Age. 43 years, Occ. Agri., R/o. Village Karadgaon, Tal. Pathardi, Dist. Ahmednagar. 3. Sudhakar s/o. Bhimrao Kakade, Age. 31 years, Occ. Agri., R/o. Village Karadgaon, Tal. Pathardi, Dist. Ahmednagar. 4. Kacharu s/o. Nana Gore Age. 48 years, Occ. Agri., R/o. Village Karadgaon, Tal. Pathardi, Dist. Ahmednagar. [deleted as per order dated 01.04.1998 passed in Cri. Appln. No. 561 of 1998] ( 2 ) crap95.98 5. Bhimraj s/o. Shankar Kakade, Age. 59 years, Occ. Agri., R/o. Village Karadgaon, Tal. Pathardi, Dist. Ahmednagar. 6. Bhagwan s/o. Eknath Ghugre, Age. 47 years, Occ. Agri., R/o. Village Karadgaon, Tal. Pathardi, Dist. Ahmednagar. 7. Avinash s/o. Bhimraj Kakade, Age. 33 years, Occ. Agri., R/o. Village Karadgaon, Tal. Pathardi, Dist. Ahmednagar. Versus 1. The State of Maharashtra .. Respondents Through P.S.O., Pathardi 2. Rambhau Laxman Kakade Age. Major, Occ. Agri., R/o. Koradgaon, Tal. Pathardi, Dist. Ahmednagar. Mr. R.N. Dhorde, Advocate for the appellants. Mr. N.H. Borade, A.P.P. for respondent/State. WITH CRIMINAL APPEAL NO. 96 OF 1998 1. Jagannath s/o. Eknath Ghugre .. Appellant Age, 36 years, Occ. Agri., R/o. Village Koradgaon, Tal. Pathardi, Dist. Ahmednagar. ( 3 ) crap95.98 Versus 1. The State of Maharashtra .. Respondents Through P.S.O., Pathardi 2. Smt. Lata w/o. Vijay Hadole Age. 30 years, Occ. Labourer, 3. Preeti d/o. Vijay Hadole, Age. 8 years, Occ. Education, Through M.G.P. Respdt. No.2 Both r/o. Village Koradgaon, Tal. Pathardi, Dist. Ahmednagar. Mr. R.N. Dhorde, Advocate for the appellant. Mr. N.H. Borade, A.P.P. for respondent No.1/State. Mr. A.R. Borulkar, Advocate for respondent Nos. 2 & 3. WITH CRIMINAL APPEAL NO. 108 OF 1998 Kacharu Nana Gore .. Appellant Age. 48 years, Occ. Agri., [original accused R/o. Village Koradgaon, No.15] Tal. Pathardi, Dist. Ahmednagar. Versus The State of Maharashtra .. Respondents Through P.S.O., Pathardi [ori.complainant] Mr. Prashant Deshmukh, Advocate for the appellant. Mr. N.H. Borade, A.P.P. for respondent/State. ( 4 ) crap95.98 CORAM : V.R. KINGAONKAR,J. RESERVED ON : 29.11.2010 PRONOUNCED ON : 22.12.2010 J U D G M E N T :- 1. These are three criminal appeals arising out of same judgment rendered by the learned Sessions Judge, Ahmednagar, in Sessions Case No. 287 of 1991. By the impugned judgment, the appellants were held guilty for commission of offence of rioting armed with deadly weapons with common object to cause injuries to first informant (P.W. 9-Rambhau) and others. They have been held guilty for the offence punishable under Section 147 read with Section 149 of the Indian Penal Code and each was sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs. 1000/-, in default, to suffer simple imprisonment for 15 days. They were further convicted for offence punishable under Section 148 read with Section 149 of the Indian Penal Code and have been sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs. 1000/-, in default, to suffer simple imprisonment for 15 days. They have been ( 5 ) crap95.98 further convicted for the offence punishable under Section 324 read with Section 149 of the Indian Penal Code and were each sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 2000/-, in default, to suffer simple imprisonment for one month. In addition and in isolation, appellant – Jagannath, who has preferred Criminal Appeal No. 96 of 1998, was held guilty for offence punishable under Section 304 Part II of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 25,000/-, in default, to suffer simple imprisonment for one year. 2. The learned Sessions Judge directed all the substantive sentences of the appellants to run concurrently, granted compensation of Rs. 25,000/- to the legal heirs of deceased Vijay Hadole under section 357 of the Cr.P.C. and granted set off to each of the appellant for the period which was spent as under-trial prisoner. 3. The incident giving rise to the prosecution occurred in the morning of 11th March, 1991. There were two ( 6 ) crap95.98 factions in the village, namely, Koradgaon. There were strained relations between the first informant i.e. P.W.9- Rambhau and original accused No.19-Rafiq. Somewhere before 3-4 months of the incident there had been quarrels between them. The first informant P.W.-Rambhau had lodged a complaint against him. 4. The prosecution case, stated briefly, is that accused No.19-Rafiq was creating terror in the village locality. Nobody was coming forward to make complaints against him. The first informant drew a representation against the nefarious activities of accused No.19-Rafiq. In the morning of 11th March, 1991, he started obtaining signatures of the villagers on the said representation. His brothers and members of the group were with him during the signature campaign. At about 10.00-10.30 a.m. accused No.15- Kacharu reached the place of the village arch (Ves) where the signature campaign was being conducted. The first informant (P.W.-Rambhau) asked accused No.15-Kacharu whether he would sign the representation. The latter was irked. He started addressing obscenities to the first informant. The first ( 7 ) crap95.98 informant urged him to refrain from abusing and told him that he may or he may not sign the representation, but should not give abuses. The original accused No.15-Kacharu then left the place. About 10-15 minutes thereafter he along with other appellants together came from the residential locality of the village to the place of platform in front of the co- operative sugar factory’s office, in the proximity of the entrance arch of the village, where the first informant P.W.- Rambhau and others were sitting. The group of the appellants was armed with sticks, axes, iron rods, cycle chains and cable wires. All of a sudden, they mounted assault on the first informant, P.W. Vithal and others by means of axe, sticks, iron rods and cycle chain. In the course of the assault, accused No.2-Jagannath dealt blow of an axe on head of deceased Vijay Hadole. Therefore, Vijay Hadole was seriously injured and immediately fell down. He was rushed to the hospital along with other injured persons. Whilst the injured persons were under medical treatment at Sasoon Hospital, Pune, Vijay Hadole, one of the injured persons succumbed to the head injury. On basis of F.I.R. lodged by P.W.9-Rambhau, Police carried out certain investigation. The ( 8 ) crap95.98 appellants along with other acquitted accused persons i.e. original accused Nos. 5 to 14, 17, 19, 20, 22 & 23 were charge-sheeted for the offences punishable under Sections 147, 148, 302, 307, 326, 324, 323, 504 and 506 read with section 149 of the Indian Penal Code. They were also charged for the offences punishable under Section 37 (1) (3) read with Section 135 of the Bombay Police Act, for being in possession of deadly weapons of which the possession was prohibited under the order of the District Magistrate. 5. All the appellants entered plea of “not guilty” to the charge framed against them and acquitted accused persons vide Exh.7. Their defence was one of simple denial. According to them, deceased Vijay Hadole had accidentally fallen down from the platform in the relevant morning and as such was injured. They alleged that they have been falsely implicated in the criminal case due to rivalry between the two factions of the villagers. It was alleged that when the original accused No.15-Kacharu declined to sign the joint representation drafted by the first informant P.W.-Rambhau then the latter and his brothers along with other members of ( 9 ) crap95.98 their group had picked up quarrel with him. They had beaten up accused No.15-Kacharu due to the act of refusal to sign the joint representation. Then, father of the accused No.4- Sudhakar attempted to intervene, the first informant and his group members abused and assaulted him as well as his sons i.e. original accused No.4 Sudhakar etc. There took place mutual fight (Maramari) between the two groups. However, P.W.-Rambhau and others lodged a false report and thereafter a false case was initiated against them on account of collusive action of the police. In view of such defence, they sought acquittal from the charge. 6. At the trial, the prosecution examined in all 19 witnesses in support of its case. The prosecution also relied upon certain documents. On appreciation of the material placed before the Court, the learned Sessions Judge partly accepted the case of the prosecution and held the appellants guilty for the offence of rioting with deadly weapons and causing hurt to the prosecution witnesses by means of such deadly weapons in furtherence of their common object, being members of unlawful assembly. The learned ( 10 ) crap95.98 Sessions Judge, however, held that the members of the unlawful assembly had no common object to eliminate deceased Hadole, but it was at the spur of moment the death of Vijay Hadole was caused by appellant-Jagannath and he alone is responsible for such act, which was within ambit of Section 304 Part II of the Indian Penal Code. They were accordingly convicted and sentenced as indicated in the opening paragraph. 7. Mr. Dhorde R.N. and Mr. Deshmukh Prashant, learned advocates appearing for the appellants contended that the genesis of the incident was suppressed by the first informant and other witnesses. They argued that the learned Sessions Judge did not appreciate the evidence in proper perspective. They contended that the prosecution was fall-out of election rivalry between two groups of the villagers. They submitted that P.W.-Rambhau and other witnesses spelt out parrot-wise story in support of the prosecution. They contended that the versions of P.W.-Rambhau and other witnesses are unreliable, unacceptable and not free from blemish. They submitted that the appellants deserve benefit of reasonable doubt emerging ( 11 ) crap95.98 from the evidence of the prosecution witnesses. They further contended that in view of the previous political rivalry between the two groups, the lopsided versions of the prosecution witnesses should not have been relied upon by the learned Sessions Judge and particularly because the versions are tainted with internal contradictions and omissions. Mr. Deshmukh argued that original accused No.15-Kacharu did not participate in the assault and was wrongly held vicariously liable being a member of the group of the assailants. Hence, they urged to allow the appeals. They alternatively urged to grant benefit of probation under Section 360 of the Cr.P.C. to the appellants, in view of long drawn period of pendency of the appeals. 8. Per contra, learned A.P.P. Mr. Borade supported the findings of the Sessions Court. He contended that the delay in hearing of the appeal cannot be attributed to the prosecution and therefore the request for grant of benefit of Section 360 of the Cr.P.C. is unjustified. 9. The points which require determination in these ( 12 ) crap95.98 appeals are as stated below :- (i) Whether in the facts and circumstances of the present case, it is proved that the appellants formed an unlawful assembly in the relevant morning with a common object to cause injuries to the first informant (P.W.Rambhau) and his group members and in pursuance thereof caused hurt to them? (ii) Whether in the facts and circumstances of the present case, it is proved that the appellants committed offence of rioting with deadly weapons, such as, axe, iron rods, sticks, cycle chain etc. which could be used to cause grievous hurt or loss of human life? (iii) Whether appellant-Jagannath caused hurt to deceased Vijay Hadole by means of axe and with the knowledge that due to his such act, the death of latter would occur? (iv) Whether the impugned judgment of conviction and sentence is legal and proper or that it deserves interference in any manner? 10. Before I proceed to scrutinize the evidence of the first informant and other injured witnesses, it may be mentioned that out of 19 witnesses examined by the prosecution, P.W.6-Ramnath is a panch witness. He was declared hostile. He did not support the seizure panchanama (Exh.57) under which bloodstained clothes of the victim and ( 13 ) crap95.98 the stick came to be attached. So also P.W.8-Balu is panch witness. He too was declared as hostile. He denied to support the seizure panchanama (Exh.63), under which the bloodstained clothes and stick came to be recovered. The versions of these two witnesses are of no avail to the prosecution. The testimonies of P.W.1-Prabhakar and P.W.5- Sawataram are of formal character. The version of P.W.Prabhakar lends corroboration to rough sketch (Exh.37) of the place of incident. He is the Circle Revenue Officer. He drew rough sketch after visiting the spot. The version of P.W.Sawataram pertains to the official notification issued by the District Magistrate, which prohibited possession of dangerous weapons by the public members within the limits of Ahmednagar district during the relevant period. The promulgation of this prohibitory order is not proved and therefore the learned Sessions Judge was right in reaching the conclusion that the offence punishable under Section 37 read with Section 135 of the Bombay Police Act was not made out. 11. Now, I shall scrutinize the direct evidence ( 14 ) crap95.98 tendered by P.W.9-Rambhau, P.W.10-Vithal, P.W.11-Narayan, P.W.12-Anil Kakade, P.W.13-Anil Band, P.W.14-Shivaji Hadole and P.W.15-Ramesh Deshmukh. They gave eye-witness account of the incident. Out of them, P.W.14-Shivaji is father of deceased Vijay Hadole and P.W.9-Rambhau is the first informant. It is important to notice that P.W.9-Rambhau, P.W.10-Vithal and P.W.11-Narayan sustained injuries during the course of the alleged incident. It is but natural that their presence at the spot can be gathered on account of they being the victims of the assault. 12. Coming to the version of P.W.-Rambhau, it may be gathered that he narrated the manner in which the incident occurred, in keeping with recitals of the F.I.R. (Exh.65). His version purports to show that he and certain section of the villagers were aggrieved due to the activities of original accused No.19-Rafiq. His version purports to show that about 3-4 months prior to the incident, he was required to lodge the report against said accused Rafiq at Pathardi police station. In-spite of such report lodged with the police, original accused No.19 Rafiq did not change his ( 15 ) crap95.98 attitude and continued to terrorize the villagers. Consequently, P.W.Rambhau and his group members prepared a draft of joint representation and were engaged in obtaining signatures of the villagers on the representation in the relevant morning. His version purports to show that P.W.10- Vithal, P.W.11-Narayan and P.W.12 Anil Kakade were with him, at the time of signature campaign. They were sitting at a place near the entrance arch of the village (Ves). They saw appellant-Kacharu in the proximity of the place and as such he requested him to sign the joint representation. Thereupon, appellant-Kacharu abused him. His version purports to show that he urged appellant-Kacharu to refrain from abusing even though he was not going to sign the representation. In other words, there took place some altercation between P.W.Rambhau and appellant-Kacharu on the issue of the signature campaign. The testimony of P.W.- Rambhau purports to show that appellant-Kacharu left the place and returned to the village. The version of P.W.- Rambhau further reveals that appellant-Kacharu came back with the appellants, including original accused No.19-Rafiq. His version reveals that he and his brothers etc. were then ( 16 ) crap95.98 sitting on a platform in front of the office of the co- operative sugar factory. The appellants were armed with sticks, axe, iron bars, cycle chain etc. He narrated as to how the assault was mounted by the group of the appellants on him, his brothers and other members. His version purports to show that appellant-Jagannath dealt blow of axe on his head and as such he was injured. His version further shows that the appellant assaulted his brothers, injured Vijay Hadole and others. According to him, Abasaheb Band came there and attempted to intervene in the quarrel, but he too was assaulted by the appellants and was therefore injured. His version purports to show that after arrival of police jeep vehicle, he and other injured persons were rushed to the Government Medical Hospital at Pathardi and therefrom they were referred to Civil Hospital, Ahmednagar. He corroborated the recitals of the F.I.R. (Exh.65). He identified bloodstained clothes (articles 1 to 3) as his belongings. 13. The cross-examination of P.W.-Rambhau shows that there was rivalry on account of elections of the village Panchayat between his group and the group of the appellants. ( 17 ) crap95.98 He admits that one of the groups of the villagers was under leadership of appellant Bhimraj, whereas another group was headed by himself and Bhausaheb Kakade. It is further admitted fact that said Bhausaheb Kakade was the rival candidate for the post of Sarpanch against the original accused No.18-Bhagwan and the latter was elected as Sarpanch. Though these admissions tend to show rivalry on account of political rift between the two groups, yet it cannot be overlooked that the Village Panchayat Election had taken place in the year 1987. There appears no proximate co- relation between the Village Panchayat Elections and the alleged incident. It appears further that the village arch (Ves) is not in existence as such, yet, an open space between fair price shop of co-operative society and Hanuman temple across the road is called the entrance arch. His version reveals that there is a common platform in front of fair price shop and the office of the co-operative society. One of the rooms of the co-operative society is used as office of the sugar factory. His version reveals that deceased Vijay Hadole was working as post-master in the village and the post office is at a short distance from the arch (Ves). Nothing ( 18 ) crap95.98 significant could be gathered from the cross-examination of P.W-Rambhau, so as to dislodge his version. It is, however, pointed out that the so called representation drafted by P.W.-Rambhau was not placed on record and as such the genesis of the incident is not believable. It is pertinent to notice that P.W.-Rambhau categorically stated that during course of the incident of scuffle and the assault, the representation was torn to pieces. His version cannot be discarded only because of the original representation signed by some of the villagers was not placed on record. There appears no serious infirmity in the version of P.W.Rambhau. 14. Similarly, the versions of P.W.10-Vithal and P.W. 11-Narayan lend corroboration to the case of the prosecution. Their versions go to show that the appellant went together to the place of the platform in front of office of the co- operative society and assaulted P.W.Rambhau and the said witnesses. Their versions corroborate the fact that the group of the appellants came together with sticks, axe and other deadly weapons. The testimony of P.W.Vithal reveals that he sustained injuries on the head and ear as the ( 19 ) crap95.98 appellant Namdeo assaulted him by means of a stick. He admits that police enquired with him on 11th & 12th March, 1991, but his statement was recorded on 13th March, 1991. It is explicit that he was admitted as indoor patient in the Civil Hospital, Ahmednagar, during the relevant period. So also, P.W.11-Narayan gave details of the injuries caused to him, by means of knife and axe, which was used by appellant- Avinash and appellant-Gahininath. His version also reveals that appellant-Kacharu then had slapped him during the course of the incident. His version reveals that he along with injured Vijay Hadole were shifted to Sasoon Hospital, Pune, due to severeness of the injuries suffered by them. He is younger brother of P.W.Rambhau. He had suffered severe injuries. It was pointed out from his cross-examination that there is omission in his statement regarding assertion that appellant-Kacharu had brought the group of persons to the place of the incident and thereafter had slapped him. It is argued, therefore, that participation of appellant Kacharu in the course of the alleged assault is not proved and the version of P.W. Narayan is outcome of improvisation. It is also pointed out that his police statement consists of ( 20 ) crap95.98 contradictions and omissions in respect of the alleged denial of appellant-Kacharu to give signature on the joint representation in the relevant morning. The omission is of trivial nature. It is argued that his police statement (portion “A”-Exh.102) contradicts him regarding the identity of the assailants. It is contended that there are material omissions and contradictions in the statement of P.W.Narayan and as such his version cannot be relied upon. 15. One cannot be oblivious of the fact that above three witnesses were injured during the course of the assault. The testimony of P.W.4-Dr. Asaram lends corroboration to medico-legal certificates (Exhs. 49,50 & 52) pertaining to P.W.10-Vithal, P.W.9-Rambhau, P.W.11-Narayan respectively. The version of the Medical Officer further shows that one Dattu Sahebrao Deshmukh and Abasaheb Band were also examined by him. He noticed that they also were injured. The medical evidence shows that P.W.-Vithal had suffered contused wound over oxypital region along with abrasions over left shoulder and contusion over left middle finger. He was referred to the Government Hospital at ( 21 ) crap95.98 Ahmednagar. So also, P.W.Rambhau had received two contused lacerated wound, one on forehead and another on parietal region. There were five injuries on person of P.W.Narayan. All the injuries were contused lacerated wound as indicated in the medico-legal certificate (Exh.52) and were caused by hard and blunt object. 16. It is well settled that the version of injured witness is required to be given due weightage. Such a version cannot be lightly brushed-aside. For, injured person is not ordinarily likely to allow assault to go scot-free and unnecessarily implicate someone else in his place. It is further explicit that the F.I.R. (Exh.65) was lodged by P.W.- Rambhau on the same day. The promptitude with which the F.I.R. was lodged is an indication of absence of concoction made by him. Though there may be some contradictions or omissions found in the versions of the witnesses, yet, there is consistency in their versions about the manner in which the incident had occurred in the relevant morning. In “Dharmendra V/s. State” (2002 (4) S.C.C.679), the Apex Court held that if the prosecution evidence as a whole, rings true ( 22 ) crap95.98 and inspires confidence, then despite contradictions, the conviction can be recorded. The minor contradictions and omissions, which do not affect the core of the prosecution case, cannot be regarded as material in order to dislodge the account tendered by the eye-witnesses. 17. In addition, P.W.12-Anil Kakade, P.W.13-Anil Band, P.W.14-Shivaji Hadole and P.W.15-Ramesh Deshmukh supported case of the prosecution. Their versions go to show that the group of the appellants went to the platform annexed to the office of the co-operative society, in the relevant morning. Their versions go to show that the members of the group of the appellants started assault on P.W.Rambhau and others by means of axe and other weapons. It is not necessary to reproduce evidence of each of these witnesses. It is pointed out that P.W.-Anil erroneously stated that none of the accused was injured during the course of said incident. One cannot be oblivious of the fact that the witness was required to depose of the incident after about six years of the occurrence. It is, but natural that his memories of the incident may not be so fresh as to reproduce every minor ( 23 ) crap95.98 aspects of the incident. 18. I have carefully gone through the remaining evidence of the prosecution including that of P.W.3-Dr. Sayyad Abdul Sami. His version rules out probability of there being accidental fall of deceased