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

2. Nineteen persons were arraigned before the Trial Court for the offences under Sections 147, 148, 302 read with Section 149, section 302 read with section 34, section 307 read with section 149 and section 326 read with section 149, IPC. Trial Court acquitted all of them. The prosecution challenged the judgment of acquittal before the High Court of Judicature at Bombay. The High Court granted leave to appeal against fourteen accused persons only. As against remaining five accused, leave was refused. During the pendency of appeal, one of the accused, against whom leave was granted, died. Of the remaining thirteen accused, the Division Bench affirmed acquittal of five. The Division Bench convicted eight accused as indicated above3. Before dealing with the points raised in the appeal, it is appropriate to set out very briefly the prosecution case. Phunde, a small village in Taluka Uran, District Raigad, Maharashtra has two groups; one group is politically associated with the Peasants and Workers Party (PWP) while the other group has alliance with the Congress (I) Party. The party of the assailants belong to PWP and the prosecution witnesses belong to Congress-I party. The deceased was also a Congress-I party worker. The relations between the two groups due to party politics seem to have been strained for quite some time. Several criminal cases have been lodged by these two groups against each other. On the outskirts of the village Phunde, there is a temple popularly known as Gurbadevi Temple. The said temple celebrates every year an annual fair with pomp and show; a Jagran is held in the night on the said occasion. On April 2, 1988, the annual fair at Gurbadevi Temple was being celebrated; the idol was adorned with ornaments and the entire temple complex was illuminated with electric lights. In the night, the villagers gathered in the temple for Jagran. The group belonging to Congress (I) party took active part in the management of the said fair. The celebrations continued until midnight. Thereafter, most of the villagers left the temple. However, 15-20 persons who were in management of the said festival stayed back to keep watch over the ornaments adorned by the idol. Few of those who stayed back were chit-chatting in Sabhamandap, while some of them were simply resting and others kept themselves awake by playing cards. In the intervening night of April 2, 1988 and April 3, 1988 at about 3 - 3.15 A.M., Ramesh Mhatre (A-3) came to the temple, had a look around and then left. A-3 did not speak to anybody. About 15-20 minutes thereafter, A-3 returned to the temple with a group of about 20 persons. All of them were allegedly armed with weapons like iron bar, swords, pharashi, sticks etc. As soon as they reached, they are said to have started attacking the people assembled there. Pandurang Chandrakant Mhatre (A-2) and Ramesh Mhatre (A-3) gave iron-bar blows on the back of Nandkumar Mhatre (PW-2) but he escaped and ran towards the village. The accused persons started shouting `dhara-dhara `mara-mara. Then, they assaulted Suresh Atmaram Gharat (deceased), Sudin Mhatre (PW-4), Namdeo Mhatre (PW-5), Laxman Mhatre (PW-6), Gopal Thakur (PW-7), Mahindra Mhatre (PW-8) and Mahesh Bhoir (PW-10). Suresh Atmaram Mhatre, ran towards Uran- Panvel Road but the accused persons chased him. Maninath Shanker (A-12) assaulted him with sword. The other accused persons assaulted him with sticks and iron bars. As a result of that assault, Suresh Atmaram Gharat sustained serious injuries. PW-2 rushed towards village and shouted for help by saying that PWP workers were assaulting their (Congress-I) Party members. Hearing this, the villagers rushed towards Gurabadevi Temple. PW-2 then went to Nhava Sheva Police Station where he reached at about 4.15 A.M. (April 3, 1988). On reaching at Nava Sheva Police Station, PW-2 found that Namdeo Mhatre (PW-5) was already sitting in the police station who had conveyed to the police that persons from rival party (PWP) have assaulted the persons from their party and, that arrangements be made in sending the Police Party. PSI Anil Tamaichekar (PW-18) alongwith two police constables and PW-2 immediately left for the temple in a police jeep. On his way to village Phunde, PW-18 made enquiries from the persons who were crying and he came to know that the injured persons have been taken to Uran Dispensary. When he reached Uran Dispensary, he was informed that seriously injured persons have been sent to Sion Hospital, Bombay. PW-18 then went to the place of occurrence and from there he proceeded for Nhava Sheva Police Station. On his way, PW-18 came across one ambulance carrying injured persons. PW-18 was informed that one of the injured persons viz., Suresh Atmaram Gharat was dead. PW-18 and PW-2 then immediately went to Nhava Sheva Police Station. PW-2 lodged the complaint (Exh. 31) based on which a criminal case (C.R. No. 17/88) was registered at 6.00 A.M. on April 3, 1988 for the offences under Sections 302, 147, 148, 149, 323, 114, 307 and 326, IPC. The investigation into the crime was commenced by PW-18; he prepared inquest Panchnama (Exh.67); spot Panchnama (Exh. 32); and recorded the statements of some witnesses in the vicinity of scene of offence. The investigation was then taken over by Shantaram Waghmare, Assistant Commissioner of Police (PW-17) and changed hands as PW-17 was transferred. As the accused persons were not traceable, the Investigating Officer searched them vigorously. Six accused persons were arrested on May 26, 1988; nine were arrested on May 28, 1988 and the remaining four were arrested on August 16, 1988. For the period from May 28, 1988 to August 18, 1988, on different dates at the instance of different accused persons, weapons of assault were recovered. The investigation took long time of about 4-5 months4. The postmortem of dead body of Suresh Atmaram Gharat was conducted on April 3, 1988 by Dr. Bhujang Bawa (PW-11), Medical Officer, Uran Dispensary. PW-11 also medically examined injured witnesses on the same day; six of them were sent to the Sion Hospital, Bombay for treatment as they received serious injuries. Upon completion of all necessary formalities in the investigation, the Challan was submitted by the Investigating Officer before the Judicial Magistrate, First Class, Uran against Kamlakar Shrawan Thakur (A-1), Pandurang Chandrakant Mhatre (A-2), Ramesh @ Raman Chandrakant Mhatre (A-3), Parshuram Chandrakant Mhatre (A-4), Ashok Yadav Mhatre (A-5), Damodar Vasant Gharat (A-6), Vinod Trimbak Mhatre (A-7), Prakash Pandurang Thakur (A-8), Mahesh Pandurang Gharat (A-9), Ramchandra Raghunath Mhatre (A-10), Mahesh Shankar Gharat (A-11), Maninath Shankar Gharat (A-12), Mukund Moreshwar Mhatre (A-13), Ganpat Raghunath Mhatre (A-14), Bhushan Balchandra Mhatre (A-15), Dayanand Mahadeo Mhatre (A-16), Rupendra Shripat Mhatre (A-17), Nitin Kamalakar Thakur (A-18) and Prakash Madhukar Mhatre (A-19). As offences like 302 and 307 were exclusively triable by the Court of Sessions, the Judicial Magistrate, First Class, committed the aforesaid accused persons to the Court of Sessions Judge, Raigad-Alibagh. The case was transferred to the Court of IInd Additional Sessions Judge, Raigad-Alibag for trial5. PW-11 found following injuries on the body of the deceased :"(1) Incised wound over the left Iliac fossa, vertical skin deep, 8 X = cm(2) Incised wound over the head 4 cm above the Occipital. Vertical 3 x = cm. Bone deep(3) C.L.W. over the right upper arm in the middle on lateral side (4 x 4 cm.) with fracture of the right humerus m/3(4) C.L.W. just below the right Tibial Tuberosity 3 x 3 cm. Irregular with fracture of Tribia and fibula U/3(5) C.L.W. over the right shin over lower/3 on anterior side 2 x 2 cm. with a fracture of tibia and fibula L/3(6) Fracture of left Radius and Ulna L/3."The aforesaid injuries on the body of deceased were found ante-mortem by PW-116. Laxman Mhatre (PW-6) was initially taken to the Uran Dispensary and from there he was taken to Sion Hospital, Bombay on April 3, 1988 itself. He was found to have sustained following injuries (vide Exh. 87) :"i) CLW (R) FO Region 2" x 1" BDii) S/7/D (L) UIna m/3 no. DWD CLW 1" x =" SCD L/3rd ulna PW m/3 Ulna clinically # m/3 Ulna Contamination +iii) open injury (R) elbow CLW 2" x 1" BD vertically splitting olecranon with impression # (R) trochlea No DWDiv) S/7/D (R) Ankle no DWDv) tenderness (R) gluteal regionvi) No.# spine/pelvis/ribs/clinically x-ray # (L) Ulna m/3; # (R) Olecranon compo vertical; soft tissue (R) ankle injury."7. Vithal Pandurang Mhatre (PW-3) was also taken to Sion Hospital, Bombay on April 3, 1988. He was discharged on May 14, 1988. At the time of admission in the hospital, the following injuries were found on his person (Vide Exh. 88) :"(1) Amputation (R) thumb with thumb held by skin tag(2) I/W (R) thigh subcutaneous deep 1" x ="8. Sudin Mhatre (PW-4) was admitted in Sion Hospital on April 3, 1980. He remained there as indoor patient for three days and was discharged on April 6, 1988. At the time of his admission in the Sion Hospital, he was found to have sustained the following injuries (Vide Exh. 89) :"(1) CLW vertex 10 cm(2) Outer table # skull "9. Mahindra Lalji Mhatre (PW-8) was admitted at Sion Hospital on April 3, 1988 and was discharged on April 5, 1988. At the time of his admission in Sion hospital, he was found suffering from the following injuries (Vide Exh. 90) :"(1) CLW sintered forehead 1 ="(2) CLW occipital 1 ="(3) CLW mucosal aspect lower lip area(4) Multiple inj on back"10. Namdeo Yadav Mhatre (PW-5) sustained the following injuries :"1. Abrasion over the back at lumbar region 2 x 2 cm with irregular margin2. Abrasion over Rt.intra-axillary area 3 x 3 cm with irregular margin3. Abrasion over the Left elbow jt. 1 x 1 cm irregular in margin."11. Mahesh Kashinath Bhoir (PW-10) was also injured in the incident and he suffered the following simple injuries :"Wheelmark over the Epigastric region 6 x 2 cm vertical with irregular margin."12. The prosecution sought to establish its case by tendering nine eye-witnesses in evidence, viz., PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-8, PW-9 and PW-10. Many of them were injured. The accused persons denied that they had anything to do with the offences charged. Their defence was that a false case has been made against them by the aforesaid prosecution witnesses. A-2 pleaded alibi in his defence13. The trial court rejected the evidence of eye-witnesses holding that because of a sudden attack, all the prosecution witnesses ran helter-skelter and everybody tried to run away from the accused to save their life and in a situation like this they must not have been in a position to see actually who assaulted them. The trial court held that the evidence regarding assault on Suresh Atmaram Gharat was not specific and as he (deceased) ran from the temple, the attack on him took place at some distance from the temple and being a night time, none of the witnesses could see the attack on the deceased from the short distance, say about 5 to 10. The trial court observed that although PW-5 reached the Nhava Sheva Police Station at about 4 to 4.15 a.m. and gave information about the incident, but the FIR was registered at 6.00 a.m. at the instance of PW-2. From this, the trial court drew the inference that PW-18 and PW-2 must have pondered over the matter for false implication of the accused in the offence. The trial court, thus, acquitted all the accused persons

Reasoning: 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.