Case: Pandurang Chandrakant Mhatre &amp; Others Vs. State of Maharashtra

and assaulting the deceased are clearly proved. A-4, A-5, A-6, A-10 and A-11 get the benefit of doubt with regard to offence under Section 302 read with Section 149 I.P.C. since evidence against them in chasing and assaulting the deceased is not consistent. However, all the eight appellants are guilty of the offences punishable under Section 148 and Section 326 read with Section 149, I.P.C. This is proved beyond doubt and the High Court cannot be said to have erred in holding so. 60. In what we have already discussed above, we see no merit in the plea of alibi set up by A-2. The plea of alibi set up by A-2 was not even accepted by the trial court. The presence of A-2 in the incident is established. He has been identified holding the iron bar. The prosecution witnesses have given specific involvement of A-2 in the incident. On the basis of the deposition of some of the eye-witnesses, the evidence of DW-1 cannot be said to have been wrongly rejected by trial court as well as by High Court. In cross-examination, DW- 1 admitted that there was no supervisor at night on that date. Insofar as, document Article-8 is concerned, suffice it to observe that original document was not produced and name and designation of the officer who is said to have signed the said certificate was not disclosed nor the person who issued the certificate was produced. As a matter of fact, plea of alibi has not at all been probabilised by A-2 much less proved. 61. Although, on behalf of the appellants it was sought to be argued that there was lack of light on the day of occurrence and, therefore, it was not possible for the witnesses to see the incident. However, from the prosecution evidence it is clearly established that the temple was illuminated due to annual fair and there were other lights at the temple. It was full moon night. We find it difficult to accept the submission of the appellants that there was not enough light at the place of incident and, therefore, the incident could not have been seen. 62. On behalf of appellant no. 8 (A-12), it was contended that site plan of the scene of offence could not have been accepted as PW-1 deposed that he prepared the sight map as per the information supplied by the police. The contention is devoid of any substance. As a matter of fact, no objection was raised when the said document was being exhibited. Moreover, the investigating officer has not at all been cross-examined in this regard. The decisions namely Ramratan and others v. State of Rajasthan ((1962) 3 SCR 590 ), Chhotu vs. State of Haryana ((1996) SCC Crl. 1161) have no application in the facts of the present case. 63. It was contended that the High Court was not justified in interfering with the judgment of acquittal as the view taken by the trial court was the possible view. Reliance, in this connection, was placed on a recent decision of this Court in Mahtab Singh & Anr. v. State of U.P. (JT 2009 (5) SC 431 ). The argument is only noted to be rejected. The view which the trial court took on the basis of the evidence on record is neither possible nor plausible. There could not be more perversity in the consideration of the evidence of eye-witnesses by the trial court when it observed : ".........All the witnesses deposed that they were lying or chit-chatting or just resting or playing cards in the temple at the time of the incident. It has also come on record that after the function was over at about 1.00 a.m. the prosecution witnesses remained in the temple for the purpose of `Jagran. All this 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 negligible distance, the attacking persons. Same thin can be said about the attack on Suresh Atmaram Gharat who is reported dead because of the incident. The evidence regarding assault on him is not at all specific. It is in short the evidence of all the prosecution witnesses that Suresh Atmaram Gharat ran from the temple with the fear of his life and he was chased by the accused and was attacked at some distance near Uran Panvel road from the temple. It is an admitted position that it was night time. It is also proved fact that Suresh was caught by the accused at a considerable distance from the temple. None of the witnesses saw the attack on Suresh, by the accused from a short distance say of about 5 to 10. This is natural because every prosecution witness was engaged and worried about his own life. So it is but natural that every witness should be running to safeguard his own life first and when he is in such state of mind, it is not at all possible to specify which accused gave blows to Suresh Atmaram Gharat on what part of his body and with what weapons." 64. With regard to evidence of PW-3 and PW-6, we have already noticed the reasoning of trial court in the earlier part of our judgment and, in our judgment, consideration of their evidence by the trial court was not proper. 65. The least that can be said is that the whole approach of the trial court in consideration of the evidence of eye-witnesses was faulty and flawed. We have independently examined the evidence for our satisfaction and we find that the judgment of the trial court acquitting all the accused persons suffered from factual and legal errors justifying interference by the High Court in appeal within permissible limits.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]58. Having carefully examined the testimony of, we find that prosecution has been able to establish that party of assailants comprised of more than five persons and that they formed unlawful assembly. It is also seen from the evidence that at least five persons chased the deceased and then attacked him. These members of the unlawful assembly who chased and attacked the deceased definitely shared common object of causing murder of Suresh Atmaram Gharat.1 had died during pendency of the appeal before High Court and, therefore, nothing further needs to be said about his role59. The High Court in para 36 of its judgment observed that common object of the said unlawful assembly was to cause grievous hurt. A little later in para 37, the High Court held that common object of the unlawful assembly was to make murderous attack on the deceased. At first blush, there seems to be some inconsistency in the judgment but on a deeper scrutiny, we find that it is not so. It isn that for determination of common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly before and at the time of attack is of relevant consideration. At a particular stage of the incident, what is object of the unlawful assembly is a question of fact and that has to be determined keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene of incident. The accused persons (nineteen in number) armed with deadly weapons came to the scene of occurrence sharing the common object of causing grievous hurt to the victim party. A closer scrutiny of evidence shows that1 and2 assaulted the prosecution witnessessome of them sustained grievous injuriesand the deceased. However, when the deceased and prosecution witnesses ran helter and skelter, at least five members of the unlawful assembly chased the deceased and they attacked him with the weapons in their hand. The purpose and design of these members of unlawful assembly in chasing Suresh Atmaram Gharat and a murderous assault by them on him may not have been shared by other members of unlawful assembly. In a case such as the present one, although having regard to facts, the number of participants could not be less than five, it is better to apply rule of caution and act on the side of safety and convict only, and2 under Section 302 read with Section 149 I.P.C whose presence as members of party of assailants is consistently mentioned and their overt acts in chasing and assaulting the deceased are clearly proved.0 and1 get the benefit of doubt with regard to offence under Section 302 read with Section 149 I.P.C. since evidence against them in chasing and assaulting the deceased is not consistent. However, all the eight appellants are guilty of the offences punishable under Section 148 and Section 326 read with Section 149, I.P.C. This is proved beyond doubt and the High Court cannot be said to have erred in holding so60. In what we have already discussed above, we see no merit in the plea of alibi set up by. The plea of alibi set up by2 was not even accepted by the trial court. The presence of2 in the incident is established. He has been identified holding the iron bar. The prosecution witnesses have given specific involvement of2 in the incident. On the basis of the deposition of some of the, the evidence of1 cannot be said to have been wrongly rejected by trial court as well as by High Court. In, DW1 admitted that there was no supervisor at night on that date. Insofar as, document8 is concerned, suffice it to observe that original document was not produced and name and designation of the officer who is said to have signed the said certificate was not disclosed nor the person who issued the certificate was produced. As a matter of fact, plea of alibi has not at all been probabilised by2 much less proved61. Although, on behalf of the appellants it was sought to be argued that there was lack of light on the day of occurrence and, therefore, it was not possible for the witnesses to see the incident. However, from the prosecution evidence it is clearly established that the temple was illuminated due to annual fair and there were other lights at the temple. It was full moon night. We find it difficult to accept the submission of the appellants that there was not enough light at the place of incident and, therefore, the incident could not have been seen62. On behalf of appellant no. 8, it was contended that site plan of the scene of offence could not have been accepted as1 deposed that he prepared the sight map as per the information supplied by the police. The contention is devoid of any substance. As a matter of fact, no objection was raised when the said document was being exhibited. Moreover, the investigating officer has not at all beend in this regard. The decisions namely Ramratan and others v. State of Rajasthan ((1962) 3 SCR 590 ), Chhotu vs. State of Haryana ((1996) SCC Crl. 1161) have no application in the facts of the present case63. It was contended that the High Court was not justified in interfering with the judgment of acquittal as the view taken by the trial court was the possible view. Reliance, in this connection, was placed on a recent decision of this Court in Mahtab Singh & Anr. v. State of U.P. (JT 2009 (5) SC 431 ). The argument is only noted to be rejected. The view which the trial court took on the basis of the evidence on record is neither possible nor plausible. There could not be more perversity in the consideration of the evidence ofeyewitnessesby the trial court when it observed :".........All the witnesses deposed that they were lying org or just resting or playing cards in the temple at the time of the incident. It has also come on record that after the function was over at about 1.00 a.m. the prosecution witnesses remained in the temple for the purpose of `Jagran. All this 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 negligible distance, the attacking persons. Same thin can be said about the attack on Suresh Atmaram Gharat who is reported dead because of the incident. The evidence regarding assault on him is not at all specific. It is in short the evidence of all the prosecution witnesses that Suresh Atmaram Gharat ran from the temple with the fear of his life and he was chased by the accused and was attacked at some distance near Uran Panvel road from the temple. It is an admitted position that it was night time. It is also proved fact that Suresh was caught by the accused at a considerable distance from the temple. None of the witnesses saw the attack on Suresh, by the accused from a short distance say of about 5 to 10. This is natural because every prosecution witness was engaged and worried about his own life. So it is but natural that every witness should be running to safeguard his own life first and when he is in such state of mind, it is not at all possible to specify which accused gave blows to Suresh Atmaram Gharat on what part of his body and with what weapons."64. With regard to evidence of3 and, we have already noticed the reasoning of trial court in the earlier part of our judgment and, in our judgment, consideration of their evidence by the trial court was not proper65. The least that can be said is that the whole approach of the trial court in consideration of the evidence ofeyewitnesseswas faulty and flawed. We have independently examined the evidence for our satisfaction and we find that the judgment of the trial court acquitting all the accused persons suffered from factual and legal errors justifying interference by the High Court in appeal within permissible limits.