1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO. 1092 OF 2005 IN CRIMINAL APPEAL NO. 1146 OF 2003 The State of Maharashtra & Ors. .. Applicants. vs. Laxman Vitthal Date & Ors. .. Respondents. Smt. P.H. Kantharia, A.P.P. for the State. CORAM: CORAM: CORAM: J.N. PATEL &, J.N. PATEL &, J.N. PATEL &, R.S. R.S. R.S. MOHITE, JJ. MOHITE, JJ. MOHITE, JJ. Date: Date: Date: 18th January, 2007. 18th January, 2007. 18th January, 2007. P.C. . This is an application for leave to appeal preferred against acquittal of the accused nos. 1 to 17 for having committed offences under section 302, 504, 506, 427 read with section 149 or in the alternative read with section 34 of IPC and convicted only original accused nos. 1, 2, 3, 5, 6, 8 and 9 for the offences punishable under section 148 of IPC and under Section 304 Part I of IPC read with section 149 of IPC for causing homicidal death of Kundlik Date and 2 original accused nos. 1, 2, 3, 5, 6, 8 and 9 for having committed offences under section 326 read with 149 of IPC for causing grievous hurt to Kashinath Date and acquittal of other accused of all the charges by the Additional Sessions Judge, Pune in Sessions Case No. 182 of 1998 by judgment and order dated 30.4.2003. 2. It is the prosecution’s case that one Raju Govind Date has died in an accident and on 18.12.1997 at about 9.30 a.m. the tenth ritual death ceremony (Dashkriya vidhi) of Raju Govind Date was arranged on the bank of river Ghodnadi at village Kathapur Khurd and the relatives of the deceased and the villagers had gathered for the said ceremony. The deceased Kashinath had come from Mumbai along with his family members to attend the Dashkriya vidhi of deceased Raju Govind Date and was armed with pistol. It so happened that after the obsequies ceremony was over and while the relatives and the villagers were returning, the original accused no. 1 Laxman came from behind and snatched the pistol from the waist of deceased Kashinath. Accused No. 6, Kailas Kisan Date, accused No. 8 Yashawant Bhagaji Dighe and accused No. 9 Sunil Karbhari Ichake followed him and they all assaulted Kashinath. Even persons who tried to intervene in the incident were beaten up. It is in this quarrel that the persons belonging to the group of deceased Kashinath suffered injuries. Kashinath and Kundlik suffered severe injuries and having fallen on the ground the appellant group left 3 the scene of offence. The injured were admitted in the hospital and the complainant Ankush Bhikaji Date lodged a FIR in respect of the incident with Shirur Police Station which was initially registered as crime bearing No. 132/1997 for the offences punishable under Sections 143, 147, 148, 149, 326, 324, 325, 323, 504, 506, 427 of the Indian Penal Code. Subsequently offence under Section 307 came to be added and on 20.12.1997 as both the accused succumbed to the injuries offence under Section 302 came to be registered. The quarrel had taken place between the two rival groups in the village probably because one of the accused snatched the pistol from the deceased Kashinath. 3. On conclusion of the trial, the Court arrived at a finding that all the accused cannot be held guilty of having committed offences of forming of an unlawful assembly whose object was to commit murder of deceased Kashinath. On the basis of evidence on record, the Court found that only some of the accused who can be held guilty for having committed offences of forming an unlawful assembly whose common object was to assault the persons from the rival group to which both Kashinath and Kundlik belonged and it held that as there is no intention to commit murder of Kashinath they were guilty of offence under section 304 Part I whereas in so far as it relates to causing death of Kundlik is concerned, they have only committed offence 4 under Section 326 of IPC and accordingly convicted and sentenced them. 4. The learned APP submitted that the trial Court has not properly appreciated the evidence on record and has placed heavy reliance on minor contradictions and omissions and gave undue benefit to the accused persons. It is submitted that though there was evidence to the effect that all the accused persons were present at the scene of occurrence, all of them have been acquitted and, therefore, the judgment and order of the trial Court acquitting all the accused persons of the charge of having constituted an unlawful assembly whose common object was to commit the murder of Kashinath and Kundlik deserves to be quashed and set aside. 5. We have examined the evidence and the reasons given by the trial Court while delivering the judgment pursuant to which it arrived at a finding that all the accused persons who were tried cannot be held guilty. Secondly, that it is only some of the accused whose participation in the offence was established by the prosecution can be held guilty not of having committed murder of Kashinath and Kundlik but having committed offence under Section 304 Part I and in so far as deceased Kashinath was concerned and section 326 IPC in so far as the deceased Kundlik was concerned. We have found that the trial Court has taken note of the fact 5 that in the FIR names of all the accused were not mentioned. Further, the witnesses examined by the prosecution have made material improvements in their evidence before the Court which was brought on record by way of omissions and that their evidence was not found to be consistent and suffered from major contradictions. 6. It cannot be overlooked that whenever such incident occurs between the rival groups, there is a tendency on the part of the other group to rope in all the persons of the rival group which has surfaced in this case and the trial court rightly took cognizance of the same and by separating grain from the chaff has come to the right conclusion in so far as false implication of some of the accused by the witnesses from the rival group. 7. Taking into consideration the reason for the quarrel, the trial Court rightly held that the incident is covered within exception 4 of Section 300 and, therefore, it is a culpable homicide not amounting to murder in so far as it related to causing death of Kashinath is concerned and considering the nature of injuries suffered by Kundlik at the most it can be said that common object of the assembly was to cause grievous injuries though he succumbed to the injuries suffered at the hands of the accused who was convicted on that count. 6 8. We do not find that the finding arrived at by the trial Court is perverse as it has taken into consideration the evidence of the witnesses and has given cogent reasons to justify the finding. Therefore, we do not find any reason to interfere with the judgment and order of the trial Court. In the result, the application for seeking leave to appeal is rejected. As a consequence of it, the appeal against acquittal is dismissed. (J.N. (J.N. (J.N. Patel, J. Patel, J. Patel, J. ) (R.S. (R.S. (R.S. Mohite, J.) Mohite, J.) Mohite, J.)