Gajanan Amrut Gaykwad And Others v. State Of Maharashtra .

G.T Nanavati, J.— This appeal is filed against the judgment of the High Court of Bombay, in Criminal Appeal No. 307 of 1980. The High Court set aside the order of acquittal passed by the Sessions Court and convicted Appellants 1 to 7 under Section 302 read with Section 149 IPC and Appellants 8 and 9 under Section 323 read with Section 149. Appellants 1 to 7 have been ordered to suffer imprisonment for life. Appellants 8 and 9 were ordered to suffer imprisonment for the period already undergone.

2. The prosecution case was that on 8-12-1979 at about 5 a.m Appellants 1 to 7, in prosecution of their common object, assaulted Gulab with iron bar and sticks and caused his death. At that time Appellants 8 and 9 were instigating Appellants 1 to 7 to beat Gulab. Hearing the cries raised by Gulab his two brothers Madhukar (PW 1) and Prabhakar (PW 2) went to his rescue. They were also assaulted by Appellants 1 to 7, as a result of which they received injuries. By that time their cousins Dinkar and Bhaskar (PW 3) came out of their house and seeing the assault on Madhukar and Prabhakar they went to their rescue. They were also assaulted by Appellants 1 to 7. Dwarka and Shobha who had followed Dinkar and Bhaskar were also given stick blows by Appellants 1 to 7 when they tried to save them. As Khanshi Ram and other persons intervened the appellants went away from that place. As a result of the injuries received, Gulab and Dinkar died. It was alleged that about two years before the date of the incident there was a quarrel between the families of Appellant 8 and his brother Sahib Rao (PW 11) on the one hand and the families of Dinkar and Gulab on the other, on account of fencing of a thrashing floor and it was for that reason that all the appellants formed an unlawful assembly on the date of the incident and in prosecution of their common object assaulted Gulab.

3. In order to establish its case the prosecution had mainly relied upon the evidence of the injured eyewitnesses and Khanshi Ram (PW 6). The learned Sessions Judge found it unsafe to rely upon the evidence of eyewitnesses because of contradictions and inconsistencies in their evidence and as no blood was found in front of the house of Appellant 8 where Gulab was stated to have been assaulted first. The High Court, on careful examination of the evidence, found that what the learned Sessions Judge considered as material contradictions were really omissions as regards details of the incident. The High Court also found that the reasons given by the learned Sessions Judge for disbelieving the eyewitnesses were neither proper nor sufficient. It, therefore, reappreciated the evidence and held that all the appellants had formed an unlawful assembly and that it was in prosecution of the common object of that assembly that Gulab was beaten. The High Court also believed the evidence of the eyewitnesses that the injured eyewitnesses and Dinkar were given blows with sticks by Appellants 1 to 7. As Appellants 8 and 9 had merely uttered the word ‘beat’ and had not taken any part in the assault on the two deceased and injured witnesses the High Court convicted them under Section 323 read with Section 149 only. With respect to other appellants the High Court held that they had committed murder of Gulab and also of Dinkar and caused injuries to the injured witnesses, in prosecution of their common object and, therefore, convicted them under Section 302 read with Section 149. In spite of the finding recorded by it that they had also caused injuries to the injured eyewitnesses the High Court did not convict them either under Section 307 read with Section 149 or Section 323 read with Section 149 IPC.

4. The learned counsel for the appellants attacked the judgment of the High Court on the ground that the High Court should not have reversed the acquittal merely because on reappreciation of evidence a different view was possible. It was submitted that the trial court had the advantage of seeing the witnesses and after appreciating their evidence it had come to the conclusion that it was not safe to rely upon the evidence of the eyewitnesses. In our opinion, the learned counsel is not right in his submission. This is not a case where two reasonable views were possible and the High Court on reappreciation of evidence took the other view. As pointed out by the High Court the trial court had committed a grave error in rejecting the evidence of the eyewitnesses on the ground that it suffered from material contradictions whereas in fact what were regarded as contradictions were mere omissions with respect to the details of the incident. The High Court rightly found that the learned Sessions Judge was not justified in doubting the evidence of the eyewitnesses on the ground that no blood was found in front of the house of Appellant 8 where according to the prosecution the deceased Gulab was first assaulted. When Appellants 8 and 9 had exhorted the other appellants to beat Gulab, while he was passing from near the house of Appellant 8, Gulab must not have remained standing there and that becomes obvious from the fact that he was found lying on the ground at a distance of about 50 feet opposite his own house. The evidence also discloses that the lota which deceased Gulab was carrying was found lying opposite the house of Appellant 8. As the learned Sessions Judge disbelieved the evidence of eyewitnesses on improper and insufficient ground and as that resulted in failure of justice, the High Court was fully justified in reappreciating the evidence and coming to its own conclusions.

5. We have also carefully gone through the evidence of Madhukar (PW 1), Prabhakar (PW 2), Bhaskar (PW 3), Dwarka (PW 4), Shobha (PW 5) and Khanshi Ram (PW 6). PW 1 to PW 5 were injured during the incident. As the evidence discloses their houses are nearby the place where the incident took place. They are opposite to the house of Appellant 8 but a little towards west. They had received injuries and therefore their presence cannot be doubted. In view of the short distance between their houses and the place of incident it is quite natural and probable that they had heard the cries of Gulab when he came to be assaulted by the appellants. By just coming out of their houses they could have witnessed what was happening on the road in front of their houses. They have consistently stated that Appellants 1 to 7 had given stick blows to the two deceased and themselves. If they really wanted to involve the appellants falsely they could have deposed that even Appellants 8 and 9 also had taken part in beating them. Their evidence cannot be discarded because they had described the sticks in the hands of Appellants 2 to 7 as ‘shingadas’ in their police statements. According to the witnesses a ‘shingadas’ is a log of wood or a thick wooden stick. So also, their evidence cannot be discarded because all of them have generally stated that Appellants 1 to 7 had assaulted them and both the deceased and they had not specifically stated which particular blow was given by which particular appellant. When a person is attacked by a number of assailants it may become difficult for that person to say exactly whose blow had caused an injury to him. When a witness deposes generally about the assault on him and others it may become necessary to scrutinise his evidence carefully and to find out whether all the accused had taken part in the assault or not; but his evidence cannot be discarded altogether if otherwise it is believable. Having carefully considered their evidence we find that their evidence is quite consistent and does not suffer from any serious infirmity. The High Court was, therefore, right in believing the injured eyewitnesses, particularly when they were supported by evidence of an independent witness Khanshi Ram (PW 6). From the evidence it appears that his house is situated opposite the house of Appellant 8 but a little towards east. He could have from his house heard the cries and after coming out of the house he could have seen the incident which took place on the road. Nothing has been brought out in his cross-examination to show that he had either any interest in the deceased or any ill-feeling towards the appellants.

6. It was, however, contended by the learned counsel that Appellants 1 to 7 ought not to have been convicted under Section 302 read with Section 149 as it cannot be said from the evidence of the eyewitnesses that right from the beginning the common object of the unlawful assembly was to cause death of either Gulab or Dinkar. He submitted that only five stick blows were given to deceased Gulab. The members of the unlawful assembly could not have expected that Dinkar would come to the rescue and, therefore, it could not have been the common object of the unlawful assembly to cause his death. In our opinion, this contention has no substance. As a result of the blows given to Gulab he had fallen down with serious injuries and because Madhukar and Prabhakar came to his rescue no further blows were given to him. The manner in which they assaulted deceased Gulab and subsequently continued to beat others who came to the rescue leaves no doubt that the common object of the unlawful assembly was to cause death of Gulab. Those who formed the unlawful assembly right from the beginning would have certainly known that in prosecution of their object there was likelihood of causing injuries and death.

7. However, a question arises as to whether Appellants 5 and 6 were members of that unlawful assembly right from the beginning. From the evidence on record it appears that their house is situated away from the house of Appellant 8. It is towards the west of the house of Appellant 8. On a careful consideration of the evidence it appears that on hearing the cries they came out of their house with sticks and when they saw that Madhukar and Prabhakar were running towards the other appellants and others were also following they went near that place and joined the unlawful assembly and took part in beating those who came there. On the basis of the evidence it is not possible to say that they had also the common object of causing death or they knew that death was likely to be caused in prosecution of the common object of the unlawful assembly of which they became a part later on. In our opinion, like Appellants 8 and 9 they should have been convicted only under Section 323 read with Section 149.

8. Appellants 1 to 4 and 7 have been rightly convicted under Section 302 read with Section 149 and their appeal will have to be dismissed. So also, Appellants 8 and 9 have been rightly convicted under Section 323 read with Section 149 and their appeal also deserves to be dismissed. However, conviction of Appellants 5 and 6 under Section 302 read with Section 149 deserves to be set aside as they really ought to have been convicted under Section 323 read with Section 149.

9. In the result we partly allow this appeal. Conviction of Appellants 1 to 4 and 7 to 9 is confirmed and so also the sentence imposed upon them. Conviction of Appellants 5 and 6 under Section 302 read with Section 149 and the sentence of rigorous imprisonment imposed upon them is set aside and instead they are convicted under Section 323 read with Section 149 and sentenced to suffer rigorous imprisonment already undergone.