1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY Appellate Side Criminal Appeal No.248 of 1985 1. Narayan Shankar Jadhav 2. Motiram Shankar Jadhav 3. Balu Shripat Jadhav 4. Tulshiram Ramchandra Jadhav 5. Chhabu Mohan Jadhav 6. Damodhar Fakira Jadhav 7. Fula Mohan Jadhav 8. Shridhar Shripat Jadhav ...Appellants (Org.Accused nos.2,3,5,10,15,11,17 & 24) Vs. The State of Maharashtra Respondent With Criminal Appeal No.445 of 1985 The State of Maharashtra ...Appellant Vs. 1. Karbhari Supadu Jadhav 2. Jagannath Supadu Jadhav ...Respondents (Org.Accused nos.8 and 26) Mr.S.V.Kotwal with Mr.P.P.Runwal for accused. Mr.P.S.Hingorani, APP for State. CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR,JJ. Reserved on : May 5, 2009. Pronounced on : June 18, 2009. 2 JUDGMENT (PER B.H.MARLAPALLE,J.) 1. In Sessions Case No.10 of 1984 in all 27 accused came to be tried by the learned Addl. Sessions Judge at Nashik for the offences of rioting armed with deadly weapons, murder, causing hurts, giving abuses and threats and punishable under Sections 147, 148, 302 read with Section 149, 307 read with Section 149, 326 read with Section 149, 325 read with Section 149, 323 read with Section 149, 452 read with Section 149 and 506 read with Section 149 of IPC. By his judgment and order dated 25th March 1985 the learned Addl. Sessions Judge was pleased to convict and sentence only eight accused i.e. Accused no.2 – Narayan Shankar Jadhav, accused no. 3 – Motiram Ramchnadra Jadhav, accused no.5 – Balu Shripat Jadhav, accused no.10 – Tulshiram Ramchandra Jadhav, accused no. 11 – Damodar Fakira Jadhav, accused no. 15 – Chhabu Mohan Jadhav, accused no. 17 – Fula Mohan Jadhav and accused no. 24 – Shridhar Shripat Jadhav for the offences punishable under Sections 147, 302 read with Section 149, 325 read with Section 149, 323 read with Section 149, 452 read with Section 149 of IPC. The remaining 19 accused came to be acquitted of all the charges. Criminal Appeal No.248 of 1985 came to be filed by the eight accused against the order of conviction and sentence. Whereas Criminal Appeal No.445 of 1985 came to be filed by the State of Maharashtra against the acquittal of remaining 19 accused. However, this Court by its order dated 19/9/1985 was pleased to grant leave to appeal only against 3 accused nos. 8 and 26 in Criminal Appeal No.445 of 1985. Both these appeals came to be decided by this Court on 25th April 2000 and the operative part of the said order reads as under: “(i) Accused Nos. 2, 3, 5, 8, 10, 11, 15, 17, 24 and 26 are convicted under Section 147 and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 1000/- each and in default to suffer R.I. For six months. (ii) Accused Nos.2 and 3 are convicted under Section 304 Part II instead of Section 302 and sentenced to suffer R.I. for seven years and to pay fine of Rs.2,000/- each and in default to suffer R.I. for three years, for attacking Kashinath. (iii) Accused Nos.3, 8, 17 and 26 are convicted under Section 324 of IPC and sentenced to suffer RI for one year and to pay fine of Rs.1,000/- each and in default to suffer further RI for six months for assaulting Sahebrao. (iv) Accused Nos. 1, 3, 10 and 15 are convicted under 4 Section 326 of IPC and sentenced to suffer RI for four years and to pay fine of Rs.2,000/- each and in default of payment of fine to suffer further RI for one year for assaulting Ashok alias Prithwilal. (v) Accused No.10 is convicted under Section 323 of IPC for assaulting Ranjana. However, no separate sentence is awarded. (vi) The substantive sentence to run concurrently. (vii) The accused shall also be entitled to get benefit of Section 428 of the Criminal Procedure Code. (viii) Accused Nos. 2, 3, 5, 8, 10, 11, 15, 17, 24 and 26 to surrender to their bail bonds within one month. Both the appeals are partly allowed accordingly.” 2. Criminal Appeal No.802 of 2000 was filed by accused no.2, Criminal Appeal No.803 was filed by accused nos.3, 5, 10, 11, 15, 17 and 24, whereas Criminal Appeal No.804 of 2000 was filed by accused nos.8 and 26 before the 5 Supreme Court of India. All these three appeals came to be decided on 9/12/2004. Criminal Appeal No.802 of 2000 was disposed as abated and, therefore, the order of conviction and sentence passed by this Court against appellant therein (accused no.2 – Narayan Shankar Jadhav) became final. In Criminal Appeal No.803 of 2000 leave to appeal was not granted as regards accused no.3 – Motiram Shankar Jadhav and leave was granted only in respect of remaining six accused i.e. Accused nos.5, 10, 11, 15, 17 and 24. Thus order of conviction and sentence passed by this Court by its order dated 25th April 2000 became final against accused no.3 as well. The Supreme Court was pleased to set aside the order of conviction and sentence passed by this Court on 25/4/2000 in respect of accused nos.5, 8, 10, 11, 15, 17, 24 and 26 and both the appeals i.e. Criminal Appeal Nos.248 of 1985 and 445 of 1985 were remanded for fresh hearing and early disposal. The appellants were continued on bail till final disposal of the appeals. 3. A purshis has been placed on record by the learned counsel for the appellant – accused stating that (a) accused no.2 – Narayan Shankar Jadhav died during the pendency of Criminal Appeal No.802 of 2000 filed before the Supreme Court and (b) accused no. 3 – Motiram Shankar Jadhav who had filed Criminal Appeal No.803 of 2000 had served his sentence as the Apex Court had not granted leave to file appeal to him. Criminal Appeal No.248 of 1985 is, therefore, required to be decided for accused nos.5, 10, 11, 15, 17 and 24 only 6 whereas Criminal Appeal No.445 of 1985 filed by the State of Maharahstra is required to be decided against acquittal of accused nos.8 and 26. 4. The prosecution case in brief is as under: Shri Shivram Jadhav was resident of village Khayade as well as nearby hamlet called Khayadewadi. He had eight sons and and one of them was employed with the Armed Forces. His Sons Prithwilal @ Ashok (PW 1) and Sahebrao (PW 2) were staying in the house in Khayadewadi whereas Kashinath (the deceased) was staying with Shivram in the house at village Khayade. Many of the accused were staying at Khayadewadi and the relations between the party of the complainant and that of the accused were strained for a long time. The incident took place on 24/11/1982 between 10 and 11 a.m. When PW 1 with his wife Ranjana (PW 3) and PW 2 with his wife Sindhu were in the farm house at Khayadewadi. 27 accused along with other 10 to 12 unknown persons came near the house armed with sticks, iron rods, axes. Accused no. 11 – Damodhar and accused no. 3 – Motiram entered the farm house and dragged out PW 1. Accused no.5 Balu and and accused no.24 Shridhar entered the farm house and dragged out PW 2. Accused No. 15 Chhabu gave iron rod blow on the left leg of PW 1 and accused no. 10 Tulshiram gave iron rod blow on his head and consequently PW 1 fell down. Seeing this attack on her husband, Ranjana PW 3 fell on the person of PW 1 for saving him from the 7 attack and still the attack continued in which PW 3 also suffered injuries. Accused no.3 Motiram gave axe blow on the head of PW 2 Sahebrao and accused no.2 Narayan, accused no.26 Jagannath and accused no. 8 Karbhari gave stick blows to PW 2. He fell down and seeing this his wife Sindhu fell on his person so as to rescue him from further attack but she was also beaten up with sticks and received injuries. In the mean time Kashinath (deceased) along with his son Sanjay – PW 6, his maternal nephew Machchindara – PW 7 were seen coming from the village side to the farm house in a bullock cart. The accused saw this and ran towards the bullock cart and obstructed. Accused no. 3 gave axe blow on the head of Kashinath, accused no.2 gave stick blow on the head of Kashinath and hence Kashinath fell down in the cart. Accused no. 11 Damodar and accused no. 2 – Narayan dragged Kashinath out of the bullock cart. Seeing this attack Sanjay – PW 6 who was minor of 14 years of age, got scared and ran away. Whereas Machchindra PW 7 got down from the bullock cart and stood aside. PW 1 and his wife Ranjana saw the attack on Kashinath and reached the spot for rescuing him but PW 1 was again assaulted by accused no.3-Motiram, accused no. 10 – Tulshiram, accused no. 15 – Chhabu and accused no.17 – Fula. At that time Azizkhan Pathan – PW 4 who was in his house had heard hue and cry and, therefore, started on his bicycle towards Khayadewadi. He had seen Shivram Pandu Jadhav also proceeding towards Khayadewadi and, therefore, Azizkhan told Shivram and his wife to go back. Machchindra – PW 7 also ran towards the village and met his grandfather and 8 grandmother and informed them about the assault on Kashinath. Azizkhan started going back on his cycle. On the way he met Deosing Solanki, village Police Patil – PW 5 who was told about the incident. He also saw that the accused were proceeding towards the land of Shivram and he asked them not to create any trouble in the village and and drove away the accused and others. PW 2 and his wife Sindhu were lying in the farm house in injured condition whereas Kashinath, Ashok - PW 1 and Ranjana – PW 3 were lying in the injured condition in the nearby land of one Laxman Bapu. The police were also informed about the trouble by the Police Patil and they arrived at the scene and took the injured in the bullock cart to the bus stand of village Khayade. Thereafter police van was called at the ST stand and the injured were taken to Wadia Dispensary for treatment. Number of injures were found on the person of Kashinath and others and, therefore, they came to be transfered to Satana road hospital for further treatment as no X-ray facility was available at Wadia Dispensary. The injured came to be admitted at Satana Road Hospital but at about 3 p.m. Kashinath died. Other injured persons were treated and PW 1 filed his complaint/FIR at Exhibit 33on 24/11/1982 at about 4 p.m. i.e. on the date of the incident itself. 5. Investigation was undertaken by PSI Vanjari – PW 15 who was on patrolling duty when the incident had taken place and the FIR at Exhibit 33 was recorded by him as per the information given by PW 1. The offence was 9 registered as Crime No.222 of 1982. The injured were initially treated by Dr. Kshirsagar – PW 17 at Wadia Dispensary and by Dr.Mrs. Kanade – PW 14 at Satana Road Hospital and she had referred the case of PW 1 to Orthopedics Surgeon Dr.Mehta (PW 13) as she had detected fracture on the right leg. Dr. Kshirsagar – PW 17 had performed autopsy on the body of Kashinath and he signed the P.M. Report at Exhibit 42. The panchanama of scene of occurrence (Exh.37) was drawn on 25/11/1982 and from that spot certain sticks and iron rods as well as axes were attached. The accused came to be arrested on different dates. After investigation PSI Dhoom - PW 16 filed the charge-sheet at Exhibit 75 against accused nos.1 to 27 in the Court of Judicial Magistrate, First Class at Malegaon who was pleased to commit the accused to the Court of Sessions by his order dated 1/12/1983. The charge was framed on 30/8/1984. The prosecution examined in all 17 witnesses and the accused in defence examined 2 witnesses i.e. Dr. Bhalchandra Kshirsagar – DW 1 and Shri Fakira Mane – DW 2. DW 1 was exmained in support of the case of the accused that Shri Jagannath Supdu Jadhav – accused no.26 had attended the N.N. Wadia Dispensary at Malegaon as OPD patient on 24/11/1982 and he was suffering from phrngitis. Whereas DW 2 was examined to show that accused no. 27 – Vasant Fakira Jadhav, who was a teacher in Vinay Mandir Vadgaon, was on duty between 9 a.m. to 12.15 noon on 24/11/1982. Statements under Section 313 of Cr.P.C. were recorded of all the accused. 10 6. The only issues we are required to consider are, (a) whether the order of conviction and sentence passed against accused nos. 5, 10, 11, 15, 17 and 24 by the trial court calls for any interference and (b) whether the order of acquittal passed against accused nos. 8 and 26 in the said case is required to be set aside. 7. For the reasons recorded hereinabove, the order of conviction and sentence rendered by this court on 25/4/2000 has become final against accused nos.2 and 3, and their conviction has been recorded under Section 304 Part-II instead of Section 302 of IPC. The order of conviction and sentence passed against accused nos.2 and 3 under Section 302 of IPC by the Sessions Court was set aside by this Court and they were instead convicted under Section 304 Part-II of IPC. They were sentenced to suffer RI for seven years and to pay a fine of Rs.2000/- each and in default to suffer RI for three years for assaulting deceased Kashinath. The learned Sessions Judge had convicted accused nos. 2, 3, 5, 10, 11, 15, 17 and 24 under Section 302 read with Section 149 of IPC and each one of them was sentenced to undergo RI for life. As the order passed by this court on 25/4/2000 has reached finality against accused nos.2 and 3, we are required to consider, whether the remaining six accused i.e. Accused nos. 5, 10, 11, 15, 17 and 24 are liable to be convicted under Section 304 Part-II of IPC or they deserve acquittal from the said charge. 11 In addition, we are also required to consider, whether the order of conviction and sentence passed against them under Sections 147, 325 read with Section 149, Section 323 read with Section 149, Section 452 read with Section 149 of IPC calls for interference in Criminal Appeal No. 248 of 1985. 8. Mr. Kotwal the learned counsel for the appellants placed reliance on the decision in the case of State of Haryana Vs. Prabhu and ors. [(1979) 4 SCC 189] and submitted that the common object of the assembly if any, could be at the most to assault the members of the complainant party and without any main target. There was no common object and knowledge to cause the death of Kashinath and, therefore, the conviction of the appellants under Section 304 Part-II read with Section 149 of IPC is unsustainable and at the most they are liable to be convicted and sentenced under Section 325 read with Section 149 of IPC. Mr. Kotwal more particularly relied upon the following observations made in the case of Prabhu ( Supra) : “4..........It is clear that the common object of the assembly was merely to give a beating to the members of the complainant party, the main target being Mohar Singh, PW, as held by the High Court. 12 There was no common object to commit the murder of Kalu. All the members of the mob were armed with lathis. The case against Harphool being a member of the mob armed with a kulhari (axe) was rightly rejected by the trial court. The members of the mob used their lathis in assaulting Kalu, Mohar Singh and others. But the nature of the injuries clearly show that neither the common object was to kill nor is it possible to infer that any member of the mob had the knowledge that death was likely to be caused in prosecution of the common object of assault. The inference drawn by the High Court on the facts of this case is correct and justified and does not call for any interference...........” 9. Though various defences have been taken, but in fairness to Mr. Kotwal the incident and membership of some of the appellants in the assembly is not seriously disputed. It was submitted, it being an alleged mob attack on the complainant party, to appreciate the evidence in support of the prosecution case the principles laid down by the Supreme Court in the case of Masalti vs. State of U.P.l [AIR 1965 SC 202] are required to be followed and if more than one eye witnesses examined by the prosecution, i.e. PW 1, PW 2, PW 3, PW 6 13 and PW 7, have stated about the involvement of any of the appellants in the incident of assault, the prosecution case may stand only against such accused and if against any of the accused more than one witnesses, out of the said five witnesses, have not stated anything about their participation in the assault or their presence as member of the assembly, the conviction and sentence will have to be set aside against such accused or appellants. A typed chart has been placed on record by Mr.Kotwal indicating the depositions of PW 1, PW 2, PW 3, PW 6 and PW 7, all of whom are stated to be the eye witnesses of the prosecution case. The contents of the said chart have not been seriously disputed by the learned A.P.P. The same is marked as Annexure “A” for identification. It is also not disputed that all these eye witnesses are the members of the same family and the defence calls them as interested witnesses. However, merely because they happened to be the family members of PW 1, that by itself, cannot be a reason to discard their evidence. Relationship is not a factor to affect the credibility of a witness. In the instant case, it is not the argument of the defence that any of the eye witnesses had falsely implicated any of the appellants. It was also submitted before us that Kashinath admittedly died on account of the head injury received by him by assault of an axe at the hands of accused no.3 and, therefore, the remaining six appellants cannot be held to be guilty of an offence punishable under Section 304 Part -II of IPC with the 14 help of Section 149 of IPC, on account of causing assault to deceased Kashinath. 10. The prosecution case as it appears from the evidence of all the five eye witnesses, the incident of assault was in three stages. Firstly, some of the accused entered in the house of the complainant PW-1and dragged him out of the house and gave blows with iron rod on his left leg and on head. This was seen by PW 3 – wife of the complainant PW 1 and she immediately fell on his body so as to save him from any further attack at the hands of the accused. In the second incident PW 2 – Sahebrao was dragged out of the house and it was alleged that accused no.3 gave axe blow on his head and other accused gave him stick blows. This was seen by his wife Sindhu who has not been examined and she fell on his person so as to save him from further attack. In the third part of the incident it is stated by the prosecution that the accused party saw Kashinath in a bullock cart coming from his village side towards Khayadewadi farm house i.e. the place of incident and, therefore, when he was about 100 meters away, some of the accused rushed towards him. Some of the accused obstructed the bullock cart in which Kashinath was sitting and accused no.3 went into the bullock cart and gave a blow of axe on the head of Kashinath. Accused no.2 gave him stick blow and Kashinath was dragged out of the bullock cart. He fell unconscious, though some of the accused continued to assault him even in that condition. PW 6 Sanjay who is the son of Kashinath 15 got scared, got down from the bullock cart and ran away from the spot of this third incident. PW 7 Machchindra got down from the bullock cart and was so scared that he only stood at one corner watching the incident. Thus it is claimed by the prosecution that PW 1 Prithwilal @ Ashok, PW 3 Ranjana, PW 6 Sanjay and PW 7 Machchindra are the eye witnesses of the third incident and PW 1, PW 2 and PW 3 are the only three eye witnesses for the first and second incident. 11. As per the post mortem report (Exhibit 42) the death of Kashinath was on account of head injury he had received and the injury certificates in respect of PW 1, PW 2 and PW 3 as well as the PM report have not been seriously disputed by the defence and in fact the PM report as well as the medical certificates have been duly proved in the oral depositions of PW 17 – Dr. Kshirsagar, PW 13 – Dr.Mehta Orthopedic Surgeon and Dr.Ms.Kanade – PW 14. As per Exhibit 37 panchanama drawn on 25/11/1982, from the spot of incident some sticks, iron rods and axe were attached. However, the recovery of only one axe has been proved. It has come in the evidence of PW 17 that the head injury received by Kashinath was not from the sharp side of the axe and it being a blunt weapon used, the injury could have been caused by the blunt side of the axe. The PM report at Exhibit 42 states that on the left front temporal region of head, there was sutured CLW 2” long external injury and in addition there was a fracture of left temporal bone palpable. These injuries 16 were ante mortem and were sufficient to cause death. The cause of death in the opinion of the doctor was shock due to fracture of skull bone with internal hemorrhage. 12. So far as injuries sustained by PW 1, PW 2 and PW 3 are concerned, Exhibit 45 is the medical certificate which gives the following injuries sustained by PW 1: 1. Bruise 2 1/2” x 1/2” forehead with haematoma. 2. Blunt injury abdomen. 3. CLW 2 1/2” x 1/2” lower third right leg with fracture libia right 4. Fracture libia and fibula and fracture Ulna right lower third. These injuries are stated to be grievous hurt by hard and blunt weapon as per the opinion of the doctor. Exhibit 44 is the medical certificate in respect of PW 3 and as per the same she had received the following injuries: 1. Haematoma right upper arm. 2. Bruise 1” x 1/2” on right wrist. 17 3. Bruise 2” x 1” on left forearm. 4. Bruise on right lower leg above ankle. 5. Bruise 1” on right parietal region of scalp. The doctor opined that these were simple injuries caused by hard and blunt substance. Exhibit 46 is the medical certificate setting out the injuries suffered by Smt. Sindhubai – wife of PW 2 and she had received simple hurt by hard and blunt substance. Exhibit 43 is the medical certificate which speaks about the injuries sustained by Sahebrao and they are as under: 1. Sutural LW over head side in paratal region 2 1/2”. 2. CLW 1 1/2” in temporal region. 3. Odema on right eye. 4. Abrasion on left occipital region. As per PW 14, the injuries found on the person of Ashok PW 1 and Sahebrao PW 2 were possible by sticks or iron rod. The said witness further stated that so far as