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

2. As both these Appeals are arising out of one and the same Judgment, they are being decided by this common Judgment.3. Facts, as are necessary, for the decision of these Appeals may briefly be statedBhau Tukaram Bhopi was Sarpanch of Gram PanchayatNitlas, Tal. Panvel. Dist. Thane since 1986 till 1991. Thereere nine members of Gram Panchayat. Four members were of his party and five members were of the party of Accused No.4 Shivram. The village was also equally divided between these two parties; 15 to 20 houses in the village were of the party ofBhau, whereas remaining houses were of the party of Accused No.4 Shivram.4. On 19th October, 1991, Accused No.4 Shivram and 2 to 4 persons of his party had abusedBhau demanding his resignation from the post of Sarpanch. A complaint of the said incident was filed byBhau at Taloja Police Station, which was registered asoffence. Again, on 20th October, 1991, the Accused persons pelted stones on the houses of the party ofBhau. The complaint thereof was also registered and Accused were arrested and released on bail. On 25th October, 1991, some quarrel again took place between Laxman Choudhari belonging toBhaus party and Accused. The complaint thereof was also filed.5. As per Prosecution case, due to these incidents, the relations between these two factions had become quite strained to the extent that some apprehension was also entertained about the danger to the life ofBhaus nephew Madan. Hence, on the request of Madans elder brother, Kacharu,Eknath and his companion Prakash went to escort Madan from Apte Amalgamation Company. After his second shift was over at 11 p.m., all the four of them were proceeding to their house on bicycles.6. On the way, Accused No.2 Arun, who was also working in the same Company, overtook them on his motorcycle. By the timeEknath, Madan and Prakash came upto Water Tank S.T. Stop after Indial Company, they heard the shouts of Accused No.4 Shivram aale salyana dhara and then about 15 to 20 persons, who are later indentified as Accused, rusehd to attack them from both sides of the road. Hence they left their bicycles and started running. Other three succeeded in running away. However, the Accused caught hold of Madan while he was climbing on the rear gate of Nitco Pain Company. They pulled him down and assaulted him with the weapons in their hands like the swords, guptis and sticks. Madan was shouting that he was dying (melo..melo..).Eknath became frightened and to save himself, he started running from the field behind the Santoshi Mata Canteen and came to MIDC main road. There, he met Kacharu and informed him that Madan was assaulted by the persons from the rival parties in front of the rear gate of Nitco Paint Company. Kacharu told him to go to the village and inform people there, whereas Kacharu went to see where Madan was lying.7.Namdeo and Prakash, who had concealed themselves near Rukma Company, then started proceeding to the Police Station by a different way, under the fear of the Accused. They met the Patrolling Police Vehicle near Dena Bank.Police Constable Baban Kambale was in the said vehicle, along with Police Constable Palkar. They tookNamdeo and Prakash in their Police Jeep and proceeded towards the spot. There, they saw the dead body of Madan lying in injured condition by the side of gate of Nitco Company.Police Constable Kambale requested Police Constable Palkar to remain near the dead body and then in his Police Jeep, along withNamdeo, he went to Taloja Police Station.8. At Taloja Police Station,Head Constable Gavand was on duty asof Police Station. He recorded the complaintNamdeo containing the names of all the Accused persons and the sequence of events, as unfolded.9. On the basis of this complaint,Head Constable Gavand registered C.R. No.107 of 1991 at 11:50 p.m. against the Accused persons for the offences punishable under Sections 147, 148 and 302 r/w. Section 149 of the IPC. He informed his superior immediately and thereafter investigation was taken over byPI Vinayak Joshi. He went to the spot of incident, drew the Inquest Panchanamaand sent the dead body for post mortem. On the next day, in the evening, he made the Spot Panchanamain the presence of PanchBalaram Kathe; arrested Accused No.1 Hari Pavashe and Accused No.2 Arun Hilal and continued to take the search of remaining Accused, who were arrested subsequently on 31st October, 1991 and 1st November, 1991, respectively. Their clothes, which were having blood stains, came to be seized under Panchanama. On 29th October, 1991 itself, he conducted another Panchanama of the scene of offence, (Exhibitin the night time to ascertain the availability of light at the spot.10. During the course of further investigation, the statements of witnesses were recorded and various weapons of assault, like sword, gupti and knives, came to be seized under Memorandum and Recovery Panchanamas, (Exhibits 10, 11, 14, 15, 16, 17 and 18), at the instance of some of the Accused. The blood stained clothes of the Accused along with the blood smeared weapons of assault were sent to the Chemical Analyzer. The C.A. Reports revealed presence of human blood on these clothes and the weapons of assault. Meanwhile, the Post Mortem Reportwas received, evidencing the cause of death as as a result of injuries, thus homicidal one. Hence, after completion of due investigation,PI Joshi filedin the Court against in all 18 Accused.11. On the case being committed to the Sessions Court, the Trial Court framed charge against the Accused. The Accused abjured the guilt and claimed trial, raising the defence of false implication on account of the previous rivalry and strained relations.12. To bring home the guilt of Accused, though Prosecution examined in all 16 witnesses, out of them,Sukir Madhavi,Govind Mali andRajaram Patil, who were the Panch Witnesses to the various Memorandum and Seizure Panchanamas of the weapons of assault, had not supported the Prosecution case and hence declared hostile.Namdeo Sukrya Patil, owner of Santoshi Mata Canteen, was also declared hostile. The main reliance of the Prosecution case was, therefore, on the evidence of two eye witnesses, namely,Namdeo Chandar Patil, who has lodged the F.I.R.Eknath. Prosecution also placed reliance on the evidence ofBhau, in addition to the evidence ofPolice Head Constable Gavand and15 PI Joshi, Investigating Officer, andDr. Kendre, who has conducted the post mortem.13. The Trial Court accepted the evidence led by the Prosecution on all the counts including the evidence relating to recovery of the weapons of assault and C.A. Reports and placing implicit reliance on the testimony of the eye witnesses, held the present Appellants guilty and convicted and sentenced them as stated above; while acquitting the remaining Accused, namely, Accused No.1 Hari, Accused No.2 Arun, Accused No.7 Padu, Accused No.8 Laxman and Accused No.13 Kacharu, holding that there was no sufficient evidence on record against them and hence benefit of doubt can be extended to them.

Reasoning: 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.