* 1 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 553 OF 1991 1. Mubarak Hasan Tamboli Age: 26 years, Resident of Barsi, District: Solapur 2. Ambadas Dhondiba Dahihande Age: 27 years, Resident as above ] 3. Sudhir Shivraj Nakade Age: 28 years, Resident as above ] 4. Raja Ambadas Pawar Age: 24, Resident as above ] 5. Vasant Bhagwan Shinde Age: 29, Resident as above ] 6. Bharat Maruti Bansode Age: 26, Resident as above ] 7. Sikandar Chand Shaikh Age: 25, Resident as above ] 8. Nagnath Parmeshwar Kambale Age: 24, Resident as above ] 9. Virenda Mohan Kambale ......Appellants Age:26, Resident as above ] (Orig.accused nos.3, 5 to 10, 12 & 13) * 2 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 : V E R S U S : The State of Maharashtra .......Respondent W I T H CRIMINAL APPEAL NO. 578 OF 1991 Chandrakant Rajabhau Kathale Resident of Barshi, Solapur ...Appellant/Orig.Accd 11 : V E R S U S : The State of Maharashtra .... Respondent W I T H CRIMINAL APPEAL NO. 560 OF 1991 1. Shri. Nagnath Baban Nannajkar Age: 29 years, Resident of Barshi Taluka­Barshi, Dist­Solapur 2. Shri. Somnath Baban Nannajkar Age­ 25 years, Resident at above 3. Shri. Allibaba Lalasaheb Shaikh ......Appellants Age : 24 years, Resident as above (Orig.accused nos.1, 2 &4 ) : V E R S U S : The State of Maharashtra .....Respondent * * * * * * 3 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 Mr. Rahul Kate, Advocate for the appellants/accused. Mrs. P.P. Bhosale, APP for State­respondent. W I T H CRIMINAL REVISION APPLICATION NO. 351 OF 1991 Alibaba Lalasaheb Shaikh Occ: Business, r/o. Barshi. District­Solapur ......Applicant/Orig. Complainant : V E R S U S : 1. Vinod Vishawanth Chopra, r/o. Barshi, Dist­Solapur. 2. John Vishwanath Chopra Age:29, residence as above 3. Vijay Shriram Chopra, Age: 40, 4. Satish Shriram Chopra,Age: 42 5. Sushil Krishnalal Malhotra, 6. Sudesh @ Babu Krishnalal Malhotra,Age:28 7. Arif Kadar Pathan, Age:25 All r/o. Barshi, Dist.Solapur 8. The State of Maharashtra .....Respondents (Nos.1 to 7 Orig.accused) ­­­­­­­­­ Mr. Rahul Kate, Advocate for the applicant­original complainant. Mr. Hitesh Vyas, Advocate for respondents no.1 to 7 Mrs. P.P. Bhosale, APP for State­respondent no.8. * 4 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 CORAM : SMT. R.P. SONDURBALDOTA, J. : 2ND SEPTEMBER, 2010. JUDGMENT : 1. This is a common order on the above three appeals and the Criminal Revision Application. The appellants in Criminal Appeal No. 553 of 1991 are original accused nos.3, 5 to 10, 12 and 13. The appellants in Criminal Appeal No.560 of 1991 are original accused nos. 1, 2 and 4. The appellant in Criminal Appeal No. 578 of 1991 is original accused no.11. All the above appellants alongwith one Dattu Rasal, original accused no.14 were tried in Sessions Case No.275 of 1988 for committing offences punishable under Sections 147, 148, 149, 324 read with Section 34, Section 307 read with Section 34, Section 427 read with Section 149 Indian Penal Code and under Section 135 Bombay Police Act. By the impugned judgment and order dated 20th August, 1991 the appellants came to be convicted of the offences alleged against them. Accused No.14 was, however, acquitted. Original accused no.4 had filed a complaint against the complainant in Sessions Case No. 275 of 1988 and the witnesses therein alleging * 5 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 commission of offences punishable under Sections 147, 148, 149, 324 Indian Penal Code and under Section 135 of Bombay Police Act. That complaint resulted into Sessions Case No.40 of 1991. By the judgment and order dated 20th August, 1991 all the accused in that case came to be acquitted and the Sessions Case dismissed. Since the allegations made by original accused no.4 in his complaint, substantially relate to the incident alleged in Sessions Case No.275 of 1998, the Criminal Revision Application was directed to be heard alongwith the three appeals and it has been accordingly so heard. Infact, both the complaints arose out of the same incident. 2. Briefly stated the case of the prosecution in Sessions Case No. 275 of 1988 is as follows :­ . The complainant, John (P.W.1) alongwith his two brothers, Vinod ­P.W.12 and Rajesh­P.W.11 run the business of video parlour and an electric shop. They and their three uncles are also partners in Punjab Hotel and Poonam Hotel situate at Pande Chowk, Barshi. All the said business premises are situate close to each other. P.W.13 and 14, Sudesh and Sushil Malhotra are their relatives. In the same locality in which the business premises of the complainant are situate are the * 6 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 business and residential premises of the appellants/accused. Original accused no.1 has his bakery in front of the video parlour, original accused no.4 has his canteen at the corner of Pandey Chowk and the paan shop of original accused no.10 is near the video parlour. Original accused no.8 resides adjacent to original accused no.1. All the appellants/accused in this case are the persons known to the complainant and his relatives. 3. On 2nd February, 1988 at about 10.00 p.m. complainant, John and his cousin­Vijay were chit chatting in the boarding section of Punjab Hotel, where Sudesh and Sushil Malhotra came. A few minutes thereafter the complainant heard shouts on the ground floor and also sounds of throwing of soda water bottles. The soda water bottles were brought by the appellants/accused in an autorickshaw. His brother Satish who was at the counter of the hotel, rushed to the first floor and informed that, original accused nos.1 and 2 alongwith ten to twelve persons had entered the hotel. Original accused no.1 was carrying a sword, original accused no.2 a kukri and other persons were throwing soda watter bottles inside the hotel. They were demanding that Sudesh and Sushil Malhotra should come out of the hotel. Then * 7 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 in order to come to the hotel section, when Satish came to the staircase, two soda water bottles were hurled at him. So he peeped into the hotel and found that all the appellants/accused were inside the hotel. His brother Vinod, who was at the video parlour had rushed to the hotel to see as to what was happening there. Satish saw that original accused no.1 had caught hold of Vinod and was beating him. Original accused no.2 gave a blow of kukri on his right rib. With the blow, Vinod turned and original accused no.2 gave second blow by the kukri on his back. With that, Vinod fell to the ground. Then original accused no.1 gave two blows of sword on the head of Vinod. Original accused no.6 was armed with a knife, original accused nos.3 and 4 with gupti, original accused no.5 had a razor in his hand and the other accused persons were armed with iron bars and pipes. They were assaulting Vinod who had fallen to the ground. In order to save Vinod, complainant­John rushed to the hotel, but, original accused no. 7 gave a blow to his head with a soda water bottle. Original accused no.2 tried to assault him with kukri, but, the complainant warded off the assault of kukri by his hand and at the same time found a Zaari” lying in the corner. He picked up the Zarri” and started hitting at “ * 8 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 his assailants in order to protect himself from the attack. Then, his brother Vijay and Satish alongwith two other persons came to the spot and rescued him. Vinod was immediately taken in an autorickshaw to Hiremath Hospital, Vashi. By the time of admission to the hospital, Vinod had become unconscious. He was operated upon and the complainant and other injured persons were treated at the hospital. The hospital authorities informed the police and the complaint of John came to be recorded in the hospital at 11.30 p.m. on the very day. Due to throwing of soda water bottles, the glass cupboards in the hotel were broken. The furniture of the hotel was also damaged. Therefore, complaint under Section 307, 147, 148, 149, 427 Indian Penal Code and under Section 135 of Bombay Police Act was registered against the appellants and original accused no.14, Dattu Rasal. 4. The police drew panchanama of the place of the incident, recorded statements of witnesses and also recovered weapons used in the incident at the instance of some of the accused persons. The blood samples of the accused persons and prosecution witnesses were collected and sent to Chemical Analyser. On completion of the investigation, charge­sheet came to be filed and the appellants/accused * 9 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 tried for the offences alleged against them. 5. The defence of all the appellants/accused was of total denial. According to them, a false case has been filed against them. Some of them claim to have gone to Punjab Hotel in order to see what was going on there, but, the prosecution witnesses of the complainant committed assault on them because of which they sustained injuries. According to them, original accused nos.1, 2, 4, 7, 9, 11 and 13 had sustained injuries because of the blows given by the prosecution witnesses with weapons like sword, gupti. Therefore, they had filed a separate complaint against the complainant and six others. Original accused nos. 1, 2, 4, 6, 7, 11, 12 and 13 filed their written statement after their statement under Section 313 was recorded. 6. In order to bring home the charges against the appellants/accused, the prosecution examined 22 witnesses out of which two are injured witnesses i.e. P.W.1 and P.W. 12. Alongwith injured witness, there are three more eye witnesses. P.W.2, P.W.3, P.W.4, P.W.6, P.W.7, P.W.8 are the panch witnesses. The prosecution recovered a sword at the instance of original accused no.1, kukri at the instance of original accused no.2, razor at the instance of original * 10 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 accused no.5, knife at the instance of original accused no.7, iron bar at the instance of original accused no.13 and blood stained clothes at the instance of all the appellants/accused. The spot panchanama drawn showed soda water bottles lying around in the hotel. It also showed the furniture in the hotel damaged and the glasses of the cupboards broken. An iron bar, gupti and wooden planks were found in the hotel premises apart from the soda water bottles. Perusal of the record also shows that original accused nos.1, 2, 4, 7, 9, 11 and 13 admit their presence at the place of the incident on the date and its time. 7. Thus the record shows that there is no dispute that on 2nd February, 1988 at about 10.00 p.m. an incident of assault had taken place in Punjab Hotel. At that time, original accused nos.1, 2, 4, 7, 9 and 13 were admittedly present. There was use of sword, kukri, iron­ bars and soda water bottles in the incident. P.W.14­Satish Chopra was the first person who had witnessed the entry of the appellants/accused into the Hotel. He deposed that at about 10.00p.m. when he was sitting at the counter of Punjab Hotel, the appellants/accused came in front of the hotel. At the same time, one autorickshaw came and stopped in front of the hotel. Some persons took out soda water bottles * 11 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 from the autorickshaw and started shouting for Sudesh and Sushil Malhotra demanding that they come out of the hotel. Just about 10 to 15 minutes prior to that, Sudesh and Sushil had come to the hotel for making enquiries as regards the attendance of the Chopra family at the marriage of their common relative. Satish had directed them to the first floor where another brother, Vijay was sitting. Accordingly, Sudesh and Sushil had gone to the first floor and were present in the hotel on the first floor when the appellants/accused assembled there. On seeing the accused persons, Satish felt scared and went to the upper floor by the staircase to inform his brothers about the appellants/accused. He had seen that the appellants/accused were armed with weapons, original accused no.1 was armed with a sword, original accused no.2 was armed with a kukri, original accused no.6 with a knife and original accused no.7 with a pipe. Satish went to the first floor and informed his brothers Vijay and John about the appellants/accused. He also asked Sushil and Sudesh to hide themselves. Then, he and John were coming down to the hotel and when they peeped from the staircase, they saw that original accused no.1 had caught hold of his brother, Vinod and original accused no.2 * 12 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 gave a blow of kukri to his abdomen. With that blow, Vinod turned and was given another blow by original accused no.2 on his back. With that, Vinod collapsed and original accused no.2 gave two blows with a sword, one on his head and another on his back. On seeing that, John rushed down to help his brother when one, Kambli gave blow of soda water bottle to his head, but, John took out a Zarri” “ lying around and starting hitting the appellants/accused to move them away and also in order to protect himself. This evidence of Satish is fully corroborated by John himself, P.W.11­Raju and P.W.7­Balu. Balu at the relevant time was working in Punjab hotel. P.W.11­Raju had seen original accused nos.1, 2 and 4 alongwith about ten to eleven persons coming to Punjab hotel armed with swords etc. He also saw an autorickshaw coming to the hotel and stopping in front of it. Then the appellants/accused took out soda water bottles from the autorickshaw and started throwing at Punjab hotel. The evidence of Vinod, the injured witness who received extensive injuries also fully implicates all the accused persons into the offence and is consistent with the evidence of the other eye­witnesses. The prosecution evidence shows that there were as many as twelve injuries of incise wounds on * 13 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 the body of Vinod, one of them was on left occipito­parietal region and the other on right occipital regional, both bone deep. There were incise wounds on ribs, loin, midthorasic region alongwith other wounds. The evidence of the Medical Officer, shows that, these wounds were sufficient to cause death in ordinary course of nature. He has also opined that Vinod survived only because of immediate medical aid received by him. Vinod was in the hospital from 2nd February, 1988 till 27th February, 1988 and even thereafter occasionally for receiving treatment. The complaint filed by John names each appellants/accused just as the account of the eye­witnesses and also specify the weapons held by them. 8. The spot panchanama and deposition of the panch for it (P.W.2) establishes the extensive damage done to the hotel. The furniture was lying around scattered, glasses of the cupboards broken, the drawers of the counters removed with money with currency notes and coins lying around, pieces of soda water bottles strewn around, the telephone instrument disconnected, blood stained chappals and iron rod lying in the hotel. There were also blood stains on the floor of the hotel. There is virtually no cross­examination of the panch witness on the * 14 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 above described condition of the hotel. The presence of all the appellants/accused in the hotel on the relevant date and time with the assault caused on the complainant and the witnesses establishes unlawful assembly with the common object of causing hurt with dangerous weapons. 9. The cross­examination of the prosecution witnesses reflects the defence of the appellants/accused. Admittedly there was animosity between the two groups over the complaint lodged by one Sudhir Nakade which according to the prosecution had angered the appellants/accused. The defence of the appellants/accused is that original accused no.4 alongwith his two friends had gone to Punjab hotel, on seeing Malhotra Brothers going there, in order to settle the dispute. However, the complainant and his brothers assaulted him and others. This, however, does not explain the presence of other accused persons in the hotel and the incident of rioting. The learned trial Judge, has extensively considered the evidence to show that though the appellants/accused claim to have gone separately to Punjab hotel, they were present with a common object of causing hurt to the prosecution witnesses by means of dangerous weapons. If the claim of * 15 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 the appellants/accused is to be believed that they were present there to have the dispute settled, there can be no explanation for possession of arms by them. 10. The learned trial judge has exhaustively considered the depositions of the witnesses to take a reasonable and correct view of the matter. The depositions of the witnesses are supported by the recovery of weapons at the instance of some of the accused persons. The medical evidence also supports the prosecution. The evidence collectively brings home the guilt of the appellants/accused. No other inference is possible from the evidence led by the prosecution. The learned trial judge has also rightly acquitted original accused no.14 for want of evidence against him. In the circumstances, there is no merit in the appeals and the same are therefore dismissed. 11. Criminal Revision Application No.351 of 1991 has been filed by original accused no.4 to challenge dismissal of Sessions Case No.40 of 1991 by the Sessions Court, Solapur which was filed at his instance relating to the same incident. Both the Sessions cases, actually, ought to have been tried together since they arose out of the same incident on the basis of the two cross­complaints made. However, for reasons * 16 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 not known the two cases came to be tried separately. In this case, the prosecution examined nine witnesses. They consisted of original accused no.4 himself, P.W.2­Virender Kamble (original accused no.13), P.W.3­Raja Pawar (original accused no.7), P.W.4­Nagnath Nanajkar (original accused no.1), P.W.5­ Somnath Nanajkar (original accused no. 2), P.W.6­Dr. G.B. Hiremath, P.W.7­Dr. Sau. Kesharallimath, P.W.8­ Sudhir Nakade (original accused no.6), some of the appellants in the above appeals, and P.W.9­Investigation Officer­PSI Chandrakant A. Ghodake. On appreciation of the evidence, the Sessions Court held that the prosecution has failed to prove that on 2nd August, 1988 at about 10 p.m., the persons accused therein being the complainant and the prosecution witnesses in Sessions Case No.275 of 1988 were members of unlawful assembly and in prosecution of common object of such assembly assaulted the complainant and other prosecution witnesses. It has also failed to establish that they were armed with deadly weapons and had caused hurt to anybody. 12. I have perused the judgment and also the record of the case. The learned Sessions Judge has rightly arrived at the conclusion on appreciation of the evidence and there is no need to interfere with the * 17 * Appeals­553,578, 560 of 91 Cri.Revn.Appln­351/91 same. Hence, the Appeals and the Criminal Revision Application are dismissed. 13. Mr. Kate, the learned counsel for the appellants/accused, seeks reasonable time for the appellants/accused to surrender to the police. Time of 4 weeks is granted to the appellants/accused to surrender before the police. [SMT. R.P. SONDURBALDOTA,J]