Case: Ashok Ambo Sangade &amp; Others Vs. The State of Maharashtra

of the body of Madan, with corresponding internal injuries, proving successfully the case, as laid by the Prosecution.55. The last, but not the least, submission made by the learned Counsel for the Appellants is that no specific overt act is attributed to some of the Accused. Secondly, it is submitted that Accused No.7 Padu is acquitted, however, Accused No.9 Narayan, against whom the case stands on the same evidence, is held guilty and, therefore, he also deserves the same benefit of doubt.56. As regards the first contention that specific overt act is not attributed to each of the Accused, it is not necessary also. The law is very well crystallized on this aspect in the case of MasaltiVs. State of Uttar Pradesh, AIR 1965 SC 262, which has distinguished the observations made in BaladinVs. State of Uttar Pradesh, AIR 1956 SC 181 , and held that it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object and that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the relevant time of committing of that offence, is a member of the same assembly is guilty of that offence, and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.57. Hence, what is necessary to be proved for fastening vicarious liability on the member of the unlawful assembly is his presence at the time of incident and sharing of common object. The evidence relating to sharing of common object of an unlawful assembly can be gathered from the nature of the assembly, the weapons used by the members and the behaviour of the assembly at or before the scene of occurrence. It is an accepted principle that number and nature of injuries is a relevant fact to deduce that the common object developed at the time of incident.58. In the instant case, the presence of the present Accused is sufficiently proved on record by evidence of two eye witnesses and the common object of the assembly can be easily made out from the conduct of the Accused before, after and at the time of incident. The evidence on record proves that all of them belong to one party, they had appeared together at the spot, armed with weapons, they together chased the witnesses and deceased and the moment they succeeded in catching hold of Madan, they had started assaulting him with weapons in their hands. The fact that they had come there armed with weapons is sufficient to spell out the common object on their part. In such situation, it was not necessary for the Prosecution Witnesses to ascribe specific role to each of the Accused. The number and nature of injuries sustained by the deceased in the present case is also sufficient to deduce the common object with which the Accused had come there.59. Moreover, when 15 to 18 persons are simultaneously assaulting one person while the eye witnesses were engaged in the attempt to conceal and save themselves, it may not be possible for the eye witnesses to ascribe specific role to each of the Accused. Even then, in the present case, we find convincing evidence on record on that score. There is consistent evidence of PW-1 Namdeo and PW-4 Eknath to the effect that Accused No.4 Shivram, Accused No.12 Ram and Accused No.17 Gurunath were assaulting Madan with swords in their hands; Accused No.11 Rohidas and Accused No.18 Vasudeo were assaulting him with guptis, whereas Accused No.16 Ashok and Accused No.14 Janardan were assaulting with knives. Therefore, it is not the case where general and specious allegations of assault are made against the Accused. Witnesses have remained truthful to whatever they have actually seen and accordingly deposed, without making any attempt of ascribing the overt act to each of the Accused. The Trial Court has, in detailed, considered this evidence and after satisfying itself, held the guilt of those Accused only to be proved, whose presence and overt act is proved through the evidence of at-least two witnesses, whereas given benefit of doubt to the remaining Accused.60. As regards submission that Accused No.7 Padu is acquitted, whereas, on the same evidence, Accused No.9 Narayan is convicted, though there was no recovery of weapon from any of these two Accused, needless to say, that recovery of weapons is not an essential criteria to prove the guilt, once the evidence of the eye witnesses is believed. The presence of PW-9 Narayan is spoken of not only by PW-1 Namdeo and PW-4 Eknath, like that of Accused No.7 Padu, but even by PW-3 Bhau, whose knowledge of the incident is derived from PW-4 Eknath. Secondly, once the presence of Accused No.9 Narayan is proved through the evidence of two eye witnesses, merely because on the same evidence, Accused No.7 Padu is acquitted, which acquittal may be unmerited also, the benefit of the same cannot be given to the Accused No.9 Narayan.61. To sum up, therefore, the Prosecution case stands on a very solid and strong footing, leaving no manner of doubt either about the happening of the incident or about the complicity of Appellants therein. The Trial Court has, therefore, rightly held the guilt of the Appellants to be proved beyond reasonable doubt for the offence punishable under Section 302 r/w. Sections 149 and 147 of the IPC.62. Consequently, no interference is warranted in the Judgment of the Trial Court.

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

Explanation:
0[ds]16. In our considered opinion, before adverting to the rival submissions made by them, it would be useful to refer to the evidence on record and first of all to the evidence ofDr. Kendre, who has conducted the post mortem on the dead body of Madan. He has found as many as 13 incised wounds on the vital parts of the body of Madan, like head, neck, chest, back, hands, caused by sharp edged weapons. He has described in detail those injuries in Column No.17 of the Post Mortem Reportby drawing the diagram of the injuries. He has noticed corresponding internal injuries, which he has described in Column No.19 of the Post Mortem Report. According to him, all these injuries werein nature and sufficient in ordinary course of nature to cause death. He has opined that the cause of the death was shock secondary to rupture of brain due to sharp edged weapon. There is noof this witness either about the cause of death, the time of death or on any other aspect. Neither in the Trial Court nor in Appeal, the factum of the death of Madan having succumbed to homicidal injuries found on his person, caused by sharp edged weapon, is notare unable to accept this submission simply for the reason that there is no set rule of natural reaction. Everyone reacts in his own special way. Hence, to discard the evidence of an eye witness on the ground that he did not react in any particular manner, is to appreciate evidence in a wholly unrealistic and unimaginablein our considered opinion,by these witnesses in the course of occurrence, particularly when there were about 18 Accused armed with deadly weapon, cannot be a circumstance against their credibility, self survival being the most predominant human tendency.Therefore, the only ground, on which the evidence of these two eye witnesses challenged, that they are the chance witnesses or set up witnesses, has to be rejected out rightly. F.I.R. lodged immediately after the incident speaks loudly and gives full proof guarantee of their presence at the time of incident. Therefore, the defence that Madan was attacked by the members of rival Trade Union and Accused are falsely implicated due to enemity, also cannot be sustained. There was absolutely no scope or time or occasion for any of these two eye witnesses or the independent Police persons to make up such false case of implicating the Accused. Moreover, if there was such rivalry of Madan with the members of Trade Union and they had assaulted Madan, then there was no reason for these witnesses to exculpate the real culprits and to implicate the Accusedour considered opinion, even after the careful scrutiny andof their evidence, we do not find any reason to disbelieve them. Their entire conduct is quite natural. Their evidence is having a ring of truthfulness, their presence is mentioned in the FIR itself and they have withstood successfully the test ofHence, their evidence needs to be accepted and relied upon, as is rightly done by the Trial Court, which has the advantage of watching their conduct and demeanor while recording their evidence.Moreover, the Prosecution is not expected to examine multiple witnesses just for duplication or repetition. If the evidence of the witnesses examined by the Prosecution is found to be reliable, then the Prosecution case cannot be disbelieved merely because some more witnesses on the same points are not examined. As per theprinciple, evidence has to be weighed and not counted. It is the quality of the evidence and not the quantity of the witnesses, which is the deciding factor. Hence, at times, even the testimony of solitary witness is held to be sufficient to basehe is sufficiently discredited in hisby the learned A.P.P. and it is apparent that he is won over by the Accused. Therefore, his evidence cannot be relied upon to hold that there was no light of the sign board of the canteen.In our considered opinion, merely because the Panchas have not supported the Prosecution case, there is no reason to disbelieve the evidence of Investigating Officer, on the aspect of recovery of weapons of assault at the instance of these Accused. But, for the sake of arguments, as there is no evidence to show that these weapons were sealed with wax and were in the same condition, when they were examined by the C.A., even if the evidence relating to recovery of weapons at the instance of the Accused, is kept aside or ignored, even then it does not make any difference to the Prosecution case. Once the evidence of the eye witnesses is believed upon, as in the present case, the evidence relating to recovery of weapons of assault being merely of a corroborating nature, even if it is excluded from consideration, it does not affect the Prosecution case.54. The very edifice of Prosecution case is the testimony of eye witnesses, which is found in the present case to be full proof. Therefore, there is no need of any corroborating evidence. Even if it is required, it is coming from other sources like FIR, Spot Panchanama, the medical evidence proving the indiscriminate assault by sharp edged weapons made on the Madan, resulting into as many as 13 incised wounds on the vital parts of the body of Madan, with corresponding internal injuries, proving successfully the case, as laid by the Prosecution.55. The last, but not the least, submission made by the learned Counsel for the Appellants is that no specific overt act is attributed to some of the Accused. Secondly, it is submitted that Accused No.7 Padu is acquitted, however, Accused No.9 Narayan, against whom the case stands on the same evidence, is held guilty and, therefore, he also deserves the same benefit of doubt.In the instant case, the presence of the present Accused is sufficiently proved on record by evidence of two eye witnesses and the common object of the assembly can be easily made out from the conduct of the Accused before, after and at the time of incident. The evidence on record proves that all of them belong to one party, they had appeared together at the spot, armed with weapons, they together chased the witnesses and deceased and the moment they succeeded in catching hold of Madan, they had started assaulting him with weapons in their hands. The fact that they had come there armed with weapons is sufficient to spell out the common object on their part. In such situation, it was not necessary for the Prosecution Witnesses to ascribe specific role to each of the Accused. The number and nature of injuries sustained by the deceased in the present case is also sufficient to deduce the common object with which the Accused had come there.59. Moreover, when 15 to 18 persons are simultaneously assaulting one person while the eye witnesses were engaged in the attempt to conceal and save themselves, it may not be possible for the eye witnesses to ascribe specific role to each of the Accused. Even then, in the present case, we find convincing evidence on record on that score. There is consistent evidence ofEknath to the effect that Accused No.4 Shivram, Accused No.12 Ram and Accused No.17 Gurunath were assaulting Madan with swords in their hands; Accused No.11 Rohidas and Accused No.18 Vasudeo were assaulting him with guptis, whereas Accused No.16 Ashok and Accused No.14 Janardan were assaulting with knives. Therefore, it is not the case where general and specious allegations of assault are made against the Accused. Witnesses have remained truthful to whatever they have actually seen and accordingly deposed, without making any attempt of ascribing the overt act to each of the Accused. The Trial Court has, in detailed, considered this evidence and after satisfying itself, held the guilt of those Accused only to be proved, whose presence and overt act is proved through the evidence oftwo witnesses, whereas given benefit of doubt to the remaining Accused.60. As regards submission that Accused No.7 Padu is acquitted, whereas, on the same evidence, Accused No.9 Narayan is convicted, though there was no recovery of weapon from any of these two Accused, needless to say, that recovery of weapons is not an essential criteria to prove the guilt, once the evidence of the eye witnesses is believed. The presence ofNarayan is spoken of not only byEknath, like that of Accused No.7 Padu, but even byBhau, whose knowledge of the incident is derived fromEknath. Secondly, once the presence of Accused No.9 Narayan is proved through the evidence of two eye witnesses, merely because on the same evidence, Accused No.7 Padu is acquitted, which acquittal may be unmerited also, the benefit of the same cannot be given to the Accused No.9 Narayan.61. To sum up, therefore, the Prosecution case stands on a very solid and strong footing, leaving no manner of doubt either about the happening of the incident or about the complicity of Appellants therein. The Trial Court has, therefore, rightly held the guilt of the Appellants to be proved beyond reasonable doubt for the offence punishable under Section 302 r/w. Sections 149 and 147 of the IPC.62. Consequently, no interference is warranted in the Judgment of the Trial Court.