Bhimrao Anna Ingawale & Ors Vs.
State of Maharashtra [1980] INSC 67 (2 April 1980)
PATHAK, R.S.
PATHAK, R.S.
KOSHAL, A.D.
CITATION: 1980 AIR 1322 1980 SCR (3) 309
ACT:
Indian Penal Code 1860 (XLV of 1860) Ss. 302,
149 & 148-Animosity and enmity between the six accused and the two deceased
[assault by the party of the accused on the deceased and their brothers-Party
of the accused whether aggressors and have acted in exercise of the right of
private defence-conviction-whether valid.
HEADNOTE:
Appellants Nos. 1 to 6 were charged and
convicted for two offences under section 302 read with section 149 and one
under section 148 of the Indian Penal Code for having caused the death of two persons.
Appellants Nos. 1 to 4 and 6 are
inter-related, while appellant No. 5 is Their friend, and the two deceased are
brothers. Appellants Nos. 1 to 4 and 6 lived Jointly in a house which abutted
on a road 14 feet wide. Opposite, their house lay the one belonging to the two
deceased. The waste water emanating from the house of the appellant No. 1 had
been flowing towards the road and seeping into the western wall of the house of
the deceased. This resulted in inimical relation between the two parties. Animosity
also prevailed among the parties on account of the fact that The family of the
deceased had earlier sold to a third person some land which they wanted to
repurchase but were thwarted in their designs by the appellants who were
instigating the vendee not to re-sell the land to the deceased.
The prosecution alleged that on the fateful
day, in the morning there was a dispute and altercation between the two
deceased and the appellants. The incident was noticed by PW 20 who intervened
and separated them disarmed the two deceased and threw away the sticks which he
snatched from them. At about 2 P.M. On the same day all the appellants entered
the house of the deceased armed with axes and sticks dragged out the deceased
on the road and started beating them with their respective weapons. PW 10 and
PW 11, the wives of the deceased intervened and they also received injuries at
the hands of the appellants. In the meantime PW 13, PW 14 and their brother
Jayakar who came to the place of occurrence were beaten by the appellants who
thereafter made good their escape. The four injured brothers and the two ladies
were removed to the Civil Hospital. The two deceased succumbed to their
injuries later.
Meanwhile appellant No. 1 reached the police
station and he complained to the sub-inspector (P.W. 24) that he and his family
members had been attacked by the party of the deceased. On learning that the
opposite party had arrived at the local Civil Hospital, the sub-inspector
reached the hospital and recorded the statement (Ex. 55) of P.W. 12.
This formed the basis of the first
information report registered at the police station. On returning to the police
station the sub-inspector arrested appellant No. 1.
310 The case of the appellants was that
feelings of enmity existed between the two opposing families for two or three
years prior to the date of the occurrence, that on that dale there was exchange
of abuses between appellants Nos. 1 to 3 on the one hand and the deceased on
the other when the latter were about to assault the former but could not do so
on account of the intervention of PW 20s that soon afterwards the two deceased
and their three brothers assaulted appellants Nos. 1 to 4 with sticks and axes
at the latters house when some of the assailants were disarmed and beaten back,
and that appellants Nos. 4 to 6 were not present at the scene of the occurrence
and had been involved in the case merely because they were related to the other
appellants by ties of blood or friendship.
The Sessions Judge was of the opinion that
the incident in which the two contending parties exchanged abuses and which
came to a close with the intervention of PW 20 provided the motive for the
assault in which the two deceased lost their lives and that the eye-witnesses
had given details of the occurrence which were omitted from their statements
made to the police but that no significance could be attached to this aspect of
the matter. He further held that the occurrence took place on the road Lying in
between the respective houses of the parties, that the participation of all the
accused in the occurrence was natural and probable, that the party of the
accused were able to inflict serious injuries on their opponents and themselves
escaped with comparatively a mild beating and that therefore, there was no
right of private defence available to the appellants. On this finding the
Sessions Judge convicted and sentenced the six appellants.
The appeal to the High Court was heard by a
Division Bench, but on Account of difference of opinion among the Judges, the
matter was referred to a third Judge and the appeal was dismissed in accordance
with the majority opinion. All the three Judges re-appraised the evidence and
while the majority arrived at the same conclusion as the Sessions Judge, the
third Judge came to the finding that there was no reliable evidence to support
he prosecution case that the accused were the aggressors.
In the appeals to this Court on the
questions: (a) Whether the prosecution had proved beyond reasonable doubt that
the party of the appellants were the aggressors and whether it was made out
from the records that the latter may have acted in exercise of the right of
private defence, and (b) whether the participation of all the appellants in the
occurrence was satisfactorily made out:
HELD: (a) (i) The consideration of the ocular
evidence coupled with the testimony of PW-20 and the circumstantial evidence
especially the medical part, of it, prove beyond reasonable doubt that the
party of the appellants were the aggressors. [323F] (ii) The occurrence
admittedly took place on the road in between the respective houses of the
deceased and the appellants which is fully made out from the deposition of PW
20 who is no doubt a wholly independent and reliable witness. He was attracted
to the place of occurrence by a noise which reached him in his field after he
had gone there subsequent to his witnessing the three brothers of the deceased
running towards their house. The circumstance that their other two injured
brothers were also found lying on the road lends further strength to the
conclusion that the occurrence took place on the road 311 itself and not at the
house of the appellants. It may also be safely assumed, apart from the fact
that all the prosecution witnesses say so, that PW's 12, 13 and Jayakar were
not with the deceased at the inception of the fight and were, on the other
hand, working in their fields. [320 D-G] (iii) If the party of the deceased
were the aggressors and had made a concerted attack on the appellants who were
taken unawares there is no reason why the former should have come out second
best in the combat. The fact that practically all the injuries received by the
deceased were located in the head region and were inflicted with great force
makes it highly probable that it was they who were taken unawares and had to
bear the brunt of the attack which they had perhaps no means to repulse. [321
B] (iv) The fact that the women-folk of the deceased were also injured during
the occurrence makes it probable that the ladies had to intervene because the
fight was unequal and their respective husbands found it difficult to cope with
it. [321 G] (v) Another inference which may well be drawn from the consequences
of the combat is that PWs 12 and 13 and their brother Jayakar probably reached
the place of occurrence while their brothers were being belabored and that it
was at this stage that the three new-comers entered the arena and took up
cudgels on behalf of their hapless family members.
[321 D] (vi) It is not unoften that improvements
in an earlier version are made at the trial in order to give a boost to the
prosecution case, albeit foolishly. But that does not mean that falsity of
testimony in one material particular would ruin it from beginning to end. On
the other hand the circumstance will be a goo reason merely for the court to be
put on guard and sift the evidence with extraordinary caution and to accept
those portions of it which appear fully trustworthy either intrinsically or by
reason of corroboration from other trustworthy sources. [321 G] (vii) The road
has a width of only 14 feet and if two opposing parties consisting in all of
six to ten persons, engage themselves in violence against each other, the exact
place where the members of each would be injured may not mean anything
especially if one of the parties is taken unawares and is unarmed. [323 B] In
the instant case, none of the injuries suffered by the appellants (except for
one) was located on a vital part and all of them without exception were simple
in nature, the injuries on the two deceased persons being in contrast
practically all deadly. [323 D] (b)(i) Appellants Nos. 4 to 6 are entitled to
the benefit of doubt in the matter of their participation in the occurrence.
[324 B] (b) (ii) Appellants Nos. 1 to 3 are proved beyond reasonable doubt to
have taken part in the fight. They are not merely named in that behalf by the
eye-witness but admit their participation in the occurrence which is further
assured by reason of the fact that all three of them were found injured
immediately thereafter. The same is not true of the other there who have denied
their presence at the time and place of the occurrence and about whose
participation in the fight no other assuring factors is forthcoming. [323 G]
312 (iii) According to PW 20, appellant No. 4 was present at the scene when the
abuses were exchanged but that fact is no guarantee of his participation in the
occurrence which took place about a couple of hours later. No incongruity
results from the exclusion of appellants Nos. 4 to 6 from the fight because the
other three appellants would have as effectively caused all the injuries found
on the two deceased and the two ladies all by themselves as if they were caused
by them with the assistance of appellants Nos. 4 to 6. [323H-324A] (c) The
offence under section 148 of the Code falls to the ground with the acquittal of
appellant Nos. 4 to 6, and so does that under section 149 thereof. The two
offences of murder were committed by appellants Nos. 1 to 3 in furtherance of
their common intention so that each one of them is liable to conviction on two
counts under section 302 read with section 34 of the Indian Penal Code.
[324C-D]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.
349 of 1979.
Appeal by Special Leave from the Judgment and
order dated 27/28-9-1977 of Bombay High Court in Criminal Appeal No. 593/76.
S.D. Dashme, V.N. Ganpue, Mrs. V.D. Khanna,
C.K. Ratnaparkhi and Miss Geeta Sharma for the Appellants.
M.C. Bhandare and M.N. Shroff for the
Respondent.
The Judgment of the Court was delivered by
KOSHAL, J. This appeal by special leave is directed against a judgment dated
27th/28th of September, 1977, of the High Court of Maharashtra upholding the
conviction of the six appellants recorded by the learned Sessions Judge for two
offences under section 302 read with section 149 and of one under section 148
of the Indian Penal Code, the sentence awarded being imprisonment for life on
each of the first two counts and of rigorous imprisonment for one year on the
third with a direction that the sentences shall run concurrently.
The first appeal in the High Court was
originally heard by Vaidya and Sawant, JJ., who differed with each other on the
judgment to be rendered, Vaidya, J., holding that the appeal merited dismissal
and Sawant, J., being of the opinion that it deserved acceptance in full. The
case was therefore laid under section 392 of the Code of Criminal Procedure
before Apte, J., who concurred with Vaidya, J., so that the appeal stood
dismissed by the impugned order.
2. Certain facts are not in dispute and may
be stated at the outset. The occurrence took place on the 11th of November,
1974, in village Kole to which all the appellants except Khashaba (appellant
No. 5) belong, Appellants Nos. 1 to 4 and 6 live jointly in a house which abuts
on a road 14 feet wide. Opposite that house lies the one belong- 313 ing to the
two unfortunate persons who lost their lives as a result of the occurrence
which is said to have taken place in consequence of inimical relations between
the accused and the opposite party. The waste water emanating from the house of
appellant No. 1 had been flowing towards the other side of the road and seeping
into the western wall of the house of the deceased. This was one of the factors
leading to animosity between the parties, another being that the family of the
deceased had earlier sold to a third person some land which they wanted to
re-purchase but were thwarted in their design by the accused who were
instigating the vendee not to re-sell the land to the deceased.
3. The deceased were related to five of the
eye witnesses as would appear from the following pedigree-table:
Anandrao | |
______________________________________________ | | | | Abasahed (eye Shripati
witness (PW-19) | | ____________________________________________________ | | |
| | | | | | | | | | | | Nivas Balasaheb Bhimrao Uttam Jayakar (deceased) (deceased)
(eye witness (eye (eye =Lakshmi =Droupadi PW-12) Witness witness (eye witness
(eye witness PW-13) not PW-10) PW-11) produced) The relationship inter se
between accused-appellants Nos. 1 to 4 and 6 is shown in the table below along
with the weapons of offence said to have been wielded by each of them and an
absconding accused during the occurrence :
Bhimrao (appellant No. 1-axe) | |
_________________________________________ | | | | | | Anna Banda alias Maruti
Kisan (appellant (appellant No. 3-stick) (appellant No. 2- | No.4- axe stick) |
_______________________________ | | | | Dhondiram Shamrao (appellant No.
6-stick) (absconding accused-stick) 314 Khashaba accused No. 5 is said to be a
friend of the family of the other accused and belongs to another village.
He was said to be armed with a stick at the
time of the occurrence.
4. The prosecution case may be stated thus.
On the fateful day Nivas deceased left his house at about 10 A.M.
for Karad where he wanted to have himself
medically checked up. He returned home at about midday and told his wife that
he had been driven back by Anna appellant No. 2. By then Balasaheb deceased
also came to his house from the sugar factory where he was working. It was at
this juncture that the two brothers heard abuses being hurled at them by all
the accused and after emerging from their house picked up two small sticks and
went towards the accused. A scuffle was imminent between the two contending
parties when Bhimrao Kadam PW-20 who hails from another village Lying about a
mile away and who was then returning home from his field intervened, separated
them, disarmed the two deceased and threw away the sticks which he snatched
from them before continuing his journey.
At about 2 P.M. all the accused entered the
house of the deceased, armed as aforesaid, dragged them out of it on to the
road and started beating them with their respective weapons. Lakshmi PW-10 and
Droupadi PW-11 intervened and received injuries at the hands of the accused. In
the meantime Bhimrao PW-13, Uttam PW-14-and their brother Jayakar who had been
working in their field and were informed by a boy about the assault on the
deceased, came running to the place of occurrence but they too were beaten up
by the accused who then made good their escape.
Jayakar brought a motor vehicle from Islampur
and took his four injured brothers as well as the two ladies to the Civil
Hospital there. In the meantime Bhimrao appellant No. 1 reached police station
Islampur where he complained to Police Sub-Inspector Pandurang that he
(appellant No. 1) and his family members had been attacked by the party of the
deceased. On learning that the opposite party had arrived at the local Civil
Hospital, the Police Sub-Inspector reached the Hospital at about 8 P.M. and
recorded the statement (exhibit-55) of Bhimrao PW-12 which forms the basis of
the formal first information report registered at the police station.
Under the advice of the Medical officer,
Islampur, the injured left the same evening for the Civil Hospital at Sangli on
the way to which Nivas and Balasaheb expired.
On return to the police station Pandurang
PW-24 arrested Bhimrao appellant No. 1.
315 Lakshmi PW-10 was examined on the date of
the occurrence itself by Dr. Bhaskar PW-17 and was found to have in the web
connecting the right thumb and the index finger a muscle-deep incised wound
having the dimensions 1"x1/4". Droupadi PW-11 was examined by another
doctor on the same day but she was not produced at the trial for the reason
that she had in the mean-time been transferred to Nagpur. She was examined
again on the 18th of November, 1974, by Dr. Shridhar PW-14 who found that on
the mid-outer aspect of her left thigh was located a blue-black discolouration
having a probable duration of eight days.
Bhimrao PW-12 was examined by Dr. Kantilal
Shah PW-16 on the 11th of November, 1974, at the Civil Hospital, Sangli, and
was found to have suffered six injuries consisting of a scalp-deep incised
wound located on the central parietal area and having the dimensions 3" x
1/4", two confused lacerated wounds located over the same area, two
contusions and an abrasion. The same doctor examined Uttam PW-13 on the same
day when the latter was found to have on his person five injuries consisting of
two contused lacerated wounds located in the head and three contusions on other
parts of the body.
Appellants Nos. 1 to 3 were examined by Dr.
Shridhar PW-14 on the 11th of November, 1974 at the Civil Hospital, Islampur.
Bhimrao appellant No. 1 had on his person three injuries consisting of a
contusion on the right forearm having the dimensions 8 cm. x 5 cm., a weal mark
on the right shoulder blade and an abrasion. Anna appellant No. 2 was found to
have suffered eleven injuries consisting of six lacerated wounds, two
contusions, two weal marks and one abrasion, only one of them, i.e., a
lacerated wound, being located on a vital part (the head). Maruti appellant No.
3 had an incised and a lacerated wound on the head and another lacerated wound,
two weal marks and a contusion on other parts of the body.
The injuries so far described and found on
various members of the opposing parties were presumably all simple in nature.
Dr. Digambar Joshi PW-15 carried out the post
mortem examination of the two dead bodies on the 12th of November, 1974, Nivas
deceased was found to have suffered four external injuries two of which were
bone-deep contused lacerated wounds located in the head region. According to
the doctor the scalp was all 'boggy' and the injuries were 'fresh'. The
internal damage to the head, the doctor noted, consisted of an extensive
haematoma on the scalp, multiple fractures of the left temporal and parietal
bones, fracture of the right frontal blade, fracture of the middle cranial
fossa on the right side and extradural haema- 316 toma on the right
fronto-parietal region, the left temporal region and the left fronto-parietal
region.
In the opinion of the doctor the deceased
must have become unconscious immediately after the receipt of the injuries
which were inflicted with force and were sufficient in the ordinary course of
nature to cause death Balasaheb deceased was found by the same doctor to have
suffered four external injuries two of which were located in the head region,
one being a contused lacerated wound and the other an incised wound. The right
temporal region, according to the doctor, was 'boggy' and the injuries were
'fresh'. The internal damage to the head, the doctor noted, consisted of an
extensive haematoma under the scalp, numerous fractures of the right and left
frontal bones, right and left parietal bones and the right temporal bone,
congestion of the cortical vessels and bleeding in the brain substance. The
right from to parietal region was found by the doctor to be soft and lacerated.
The brain-matter, according to him, was coming out. He was categorical in
stating that the death must have been instantaneous and that the injuries were
individually sufficient to cause death in the ordinary course of nature.
5. 24 witnesses were examined at 'the trial
in support of the prosecution case. They included five eye-witnesses, namely,
Lakshmi PW-10, Droupadi PW-11, Bhimrao PW-12, Uttam PW-13 and Aba-saheb PW-19,
all of whom gave substantially the same version of the occurrence as has been
set out above. Bhimrao Kadam PW-20 deposed that at about noon on the fateful
day he was returning home from his fields which lie only at a distance of about
250 feet from the houses of the parties, when he found appellants Nos. 2, 3 and
4 exchanging abuses with the two deceased who were armed with sticks.
According to the witness he disarmed the
deceased and threw away the sticks on to the roof of their house. The witness
claimed to have gone away after advising both the parties to settle their
disputes amicably. He then testified to having met Bhimrao PW-12, Uttam PW-13
and their brother Jayakar when he returned to his field the same day. He
further stated that they were running but were not armed. The rest of his
testimony-in-chief may be summarised thus:
"I again heard shouts from the houses of
the parties. I again came back to the road in between their houses and saw that
Nivas, Balasaheb, Uttam and Bhimrao had injuries and they were Lying on the
road. All these injured were unconscious and their clothes were stained with
blood.
317 Lakshmi and Droupadi were by their side.
The accused were not present at that time. This was at about 2.30 P.M. Or 3
P.M." When asked in cross-examination as to what was the exact place where
he met the brothers of Nivas, he replied:
"I immediately started to my field and I
met them at a distance of about 50 or 100 feet. I again heard the noise after a
very short time after reaching the field." The witness was questioned
about what he saw on reaching the place of occurrence for the second time and
what transpired later. He stated :
"Uttam and Bhimrao were lying on the
road near the door of the house of the accused. Nivas was Lying in the middle
of the road opposite to the door of the accused. There were blood stains on the
road at the place. Jayakar was present at the scene of offence and I told him
to inform the police at Islampur. Afterwards l went to the house of the
accused. I found that there were injuries on accused No. 2 Anna and accused No.
3 Banda. Accused No. 2 Anna was Lying unconscious. Banda told me that Nivas and
all his brothers came to their house and assaulted them." The last
question put to him in cross-examination was whether it was true that Bhimrao
PW-12, Uttam PW-13 and their brother Jayakar were armed with sticks and axes.
He replied that they had something (in their hands) but that he could not say
if they had sticks and axes.
6. The defence case may be summed up as
follows.
Feelings of animosity existed between the two
opposing families for two or three years prior to the date of the occurrence as
alleged by the prosecution. On that date there was an exchange of abuses
between appellants Nos. 1 to 3 on the one hand and the deceased on the other
when the latter were about to assault the former but could not do so on account
of the intervention of Bhimrao Kadam PW-20. Soon afterwards the two deceased
and their three brothers assaulted appellants Nos. 1 to 3 with sticks and axes
at the latter's house when some of the assailants were disarmed and beaten
back. Appellants Nos. 4 to 6 were not present at the scene of occurrence and
had been involved in the case merely because they were related to the other
appellants by ties of blood or friendship.
7. The learned Sessions Judge was of the
opinion that the incident in which the two contending parties exchanged abuses
and which came to a close when Bhimrao Kadam PW-20 intervened provided the
motive for the assault in which the two deceased lost their lives. While
examining the ocular testimony he arrived at the findings detailed below:
(a) That part of the prosecution story
according to which the two deceased were dragged out of their house by the
seven accused was never put forward during the investigation and was concocted
to sene as an improvement over the version given earlier.
(b) The eye-witnesses had given details of
the occurrence which were omitted from their statements made to the police but
no significance could be attached to this aspect of the matter.
(c) Lakshmi PW-10, Droupadi PW-11, Bhimrao
PW-12 and Uttam PW-13 were certainly present at the occurrence as is made out
from the fact that they were found to have injuries on their person immediately
thereafter. Assurance to the presence of Abasaheb PW-19 at the time and place
of occurrence is also available in the fact that his house adjoins that of the
deceased.
(d) The incident in which abuses were
exchanged provided the motive for the party of the accused to assault their
opponents rather than the other way round, because the deceased had really had
an upper hand in that incident. lt would also be natural, in this view of the
matter, for appellants Nos.1 to 3 to summon help and open a concerted attack.
The participation of all the accused therefore in the occurrence was natural
and probable.
(e) The occurrence took place on the road Lying
in between the respective houses of the parties.
(f) The circumstances that two persons from
the side of the eyewitness lost their lives and that four other eye- witnesses
belonging to the same family received injuries are sufficient to suggest that
it was the party of the appellants who were the aggressors even though
appellants Nos. 1 to 3 were also injured during the occurrence; and the fact
that all the eye-witnesses were unreliable in relation to the dragging part of
the prosecution story is immaterial, their testimony being otherwise credible.
In this connection it has to be borne in mind that the party of the accused
were able to inflict serious injuries on their opponents and themselves escaped
with comparatively a minor beating. There was thus no right of private defence
available to the accused.
319 (g) Bhimrao PW-12 and Uttam PW-13 reached
the place of occurrence after the fight between the party of the accused on the
one hand and the two deceased on the other was already over and that in respect
of the injuries caused to Lakshmi PW-10, Droupadi PW-11, Bhimrao PW-12 and
Uttam PW-13 the party of the appellants had a right of private defence.
It was in these premises that the learned
Sessions Judge convicted and sentenced the six appellants as aforesaid and
acquitted them of the minor charges which had been framed against them in
relation to the injuries caused by them to the four eye-witnesses just above
named.
8. In the High Court all the three judges who
considered the appeal fully reappraised the evidence and while Vaidya and Apte,
JJ., arrived at more or less the same conclusions as the learned Sessions
Judge, Sawant, J., recorded diametrically opposed findings although he found
Bhimrao Kadam PW-20 to be a wholly independent and therefore a reliable
witness. Those findings were :
(i) There is no reliable evidence whatsoever
to support the prosecution case that the accused were the aggressors. on the
other hand, the following five circumstances point to the contrary :
(a) The concoction of that part of the
prosecution story according to which the deceased were dragged out of their
house by the appellants.
(b) During the incident in which abuses were
ex changed, appellants Nos. 2 and 3 were merely sitting on the door steps of
their house while the two deceased had gone there armed with sticks in an
attempt to assault their adversaries.
(c) "Immediately after" that
incident came to a close on the intervention of Bhimrao Kadam PW-20, the
deceased were reinforced by their three brothers and the occurrence commenced
"immediately thereafter".
(d) Bodies of the persons injured on the side
of the deceased were found Lying nearer the house of the accused than that of
their opponents.
(e) Appellants Nos. 1 to 3 also received
injuries which were sufficiently serious and numerous.
(ii) Merely because two of the opponents of
the appellants died and the number of persons injured on 320 their side was
greater than on that of the appellants, it will not follow that the latter were
the aggressors.
9. The case has been argued before us at
great length by learned counsel for the parties and the two main questions
requiring determination are:
(A) Has the prosecution proved beyond
reasonable doubt that the party of the appellants were the aggressors and that
it is not made out on the record that the latter may well have acted in
exercise of the right of private defence? (B) If the answer to question (A) is
in the affirmative, whether the participation of all the appellants in the
occurrence is satisfactorily made out ?
10. On question (A) we have no hesitation in
agreeing with the conclusion arrived at by the learned Sessions Judge and
Vaidya and Apte, JJ., and we shall record our reasons briefly. The occurrence
admittedly took place on the road in between the respective houses of the
deceased and the appellants which is fully made out from the deposition of
Bhimrao Kadam PW-20 who is no doubt a wholly independent and reliable witness.
When he was attracted to the place of occurrence by a noise which reached him
in his field after he had gone there subsequent to his witnessing the three
brothers of the deceased running towards their house, he found that Bhimrao
PW-12, Uttam PW-13 and their other two injured brothers were all Lying
unconscious on the road where Lakshmi PW-10, Droupadi PW-11 and Jayakar were
also present. It is to be noted that the heads of Nivas and Balasaheb had been
smashed to pulp so that in all probability neither of them could have moved a
step before falling down after the receipt of the injuries which were detected
on their dead bodies by Dr. Digambar Joshi PW-15.
We have to take it for granted therefore that
they were hit where they fell. The circumstance that their other two injured
brothers were also found Lying on the road lends further strength to our
conclusion that the occurrence took place on the road itself and not at the
house of the appellants. It may also be safely assumed, apart from the fact
that all the witnesses say so, that Bhimrao PW-12, Uttam PW-13 and Jayakar were
not with the deceased at the inception of the fight and were, on the other
hand, working their fields. This follows from the testimony of Bhimrao Kadam
PW-20 which bears repetition on the point. He stated that while he was
returning from his house to the fields at 2 .30 or 3 P.M. he found the three
brothers of the deceased 'running' which obviously mean 321 running towards
their house. It is the case of Bhimrao PW-12 and Uttam PW-13 that they were
informed in their field by a boy named Mehar that their brothers were being
attacked by the party of the appellants and that it was on that account that
they ran towards their house. This assertion fully fits in with the narration
of events by Bhimrao Kadam PW-20.
Another very decisive circumstance is the
nature of the injuries received by the two contending parties. If the party of
the deceased were the aggressors and had made a concerted attack on the
appellants who were taken unawares there is no reason why the former should
have come out second best in the combat. The fact that practically all the
injuries received by the deceased were located in the head region and were
inflicted with great force makes it highly probable that it was-they who were
taken unawares and had to bear the brunt of the attack which they had perhaps
no means to repulse. The fact that their womenfolk were also injured during the
occurrence makes it probable that the ladies had to intervene because the fight
was unequal and their respective husbands found in difficult to cope with it.
Another inference which may well be drawn
from the consequences of the combat is that Bhimrao PW-12, Uttam PW- 13 and
their brother Jayakar probably reached the place of occurrence while their
brothers were being belaboured and that it was at that stage that the three
newcomers entered the arena and took up cudgels on behalf of their hapless
family members. That is the only reasonable way, it appears to us, in which all
the injuries suffered by the combatants on the two sides can be explained.
11. It is true, as pointed out by Sawant, J.,
as well as the learn ed Sessions Judge, that the eye witnesses have improved
their case at the trial over the story which they put forward at the
investigating stage and therefore prove their unreliability in material
particulars; but then they are corroborated in certain other material aspects
of their testimony by unimpeachable evidence in the form of the injuries
suffered by the two sides, the place where they were inflicted and the
consequences which flowed from them, and, in those aspects we cannot but
believe them. It is not unoften that improvements in an earlier version are
made at the trial in order to give a boost to the prosecution case, albeit
foolishly. But that does not mean that falsity of testimony in one material particular
would ruin it from beginning to end. On the other hand the circumstances will
be a good reason merely for the court to be put on guard and sift the evidence
with extraordinary caution and to accept y those portions of it which appear
fully trustworthy either intrinsically or by reason of corroboration from other
trustworthy sources. And that is how we have accepted the eye-witness account
in part as stated above.
12. We may here frankly state that the
reasons given by Sawant, J., in holding that the party of the deceased were the
aggressors do not commend themselves to us. The fact that improvements were
made by the eye-witnesses on the earlier story and the dragging incident was
introduced at the trial stage has already been noticed by us but, without more,
it cannot be taken to mean that it was the party of deceased who set the ball
rolling. The incident in which abuses were exchanged between the two contending
parties again does not lead to the inference that it was the party of the
deceased who were guilty of aggression. That incident no doubt provided the
motive for the occurrence but such motive was attributable to both parties and
perhaps more so to that of the appellants who must have felt humiliated by the
show of force indulged in by the deceased. It further appears to us that
Sawant, J. misread the testimony of Bhimrao Kadam PW-20 when he remarked that
the fight took place "immediately after" the exchange-of-abuses
incident which had come to a close at the intervention of Bhimrao Kadam PW-20.
It is no doubt true that that witness did state in answer to a question in
cross-examination:
"I immediately started towards my field
and I met them at a distance of about 50 or 100 feet. I again heard the noise
after a very short time after reaching the field." The words "I
immediately started towards my field" have no connection whatsoever with
the incident in which abuses were exchanged. In this connection we may refer to
that portion of the evidence of the witness in which he categorically stated
that that incident had taken place about midday when he was returning home from
his field, that he left after the incident and that he met Uttam, Bhimrao and
Jayakar "while I was again going back-to my field." The inference is
clear that after the incident in which abuses were exchanged, the witness had
gone home to his village which lies at a distance of about a mile from the
place of occurrence and that he was again returning to his field when he met
the three brothers of the deceased which was, according to the witness, 'at
about 2.30 or 3 P.M.'. This misinterpretation of the evidence of Bhimrao Kadam
PW-20 by Sawant, J., appears to us to have influenced the learned Judge in not
a little measure in coming to the conclusion which he ultimately arrived at.
But then he was also not right, in our opinion, in inferring aggression on the
part of the party of the deceased from the cir- cumstance that "the bodies
of the injured were found nearer the house of the accused than the house of the
deceased". It is true that Bhimrao Kadam PW-20 did assert:
323 "Uttam and Bhimrao were lying on the
road near the house of the accused. Nivas was lying in the middle of the road
opposite to the door of the accused." But from this no inference such as
has been drawn by the learned Judge is reasonably possible. Admittedly the road
has a width of only 14 feet and if two opposing parties, consisting in all of
six to ten persons, engage themselves in violence against each other, the exact
place where the members of each would be injured may not mean anything,
especially if one of the parties is taken unawares and is unarmed. In any case
the fact that the road was a narrow one makes the circumstance relied upon by
the learned Judge wholly innocuous. The only other circumstance which he
pressed into service in support of his conclusion that the accused appeared to
have acted in exercise of the right of private defence was that they too
"received injuries which were sufficiently serious and numerous"
which does not appear to be an accurate statement of facts. The injuries
referred to by him were no doubt as numerous as those suffered by the other
party; but then they cannot be classified as 'sufficiently serious'. Except for
one. none of them was located on a vital part and all of them without exception
were simple in nature, the injuries on the two deceased persons being in
contrast practically all deadly.
13. Thus, the consideration of the ocular
evidence coupled with the testimony of Bhimrao Kadam PW-20 and the
circumstantial evidence, especially the medical part of it, lead us to an
answer in the affirmative to question (A) posed above.
14. On the question of the participation of
the appellants in the occurrence we have again to proceed with extraordinary
caution in view of the fact that the eye- witnesses are not only highly
interested in exaggerating the number of the opposite party during the attack
but have also been shown to have scant regard for truth when their selfish
interests so demand. In this view of the matter we consider it safe to hold
that appellants Nos. 1 to 3 are proved beyond reasonable doubt to have taken
part in the fight.
They are not merely named in that behalf by
the eye- witnesses but admit their participation in the occurrence which is
further assured by reason of the fact that all three of them were found injured
immediately thereafter. The same is not true of the other three who have denied
their presence at the time and place of the occurrence and about whose
participation in the fight no other assuring factor is forthcoming. It is true
that according to Bhimrao Kadam PW- 20, appellant No. 4 was present at the
scene when the abu- ses were exchanged but that fact is no guarantee of his
participation in the occurrence which took place about a couple of hours later.
324 And no incongruity results from the
exclusion of appellants Nos. 4 to 6 from the fight because the other three
appellants would have as effectively caused all the injuries found on the two
deceased and the two ladies all by themselves as if they were caused by them
with the assistance of appellants Nos. 4 to 6. In this view of the matter we
are of the opinion that appellants Nos. 4 to 6 are entitled to the benefit of
doubt in the matter of their participation in the occurrence. We therefore accept
the appeal in so far as they are concerned, set aside the conviction recorded
against and the sentences imposed upon them by the courts below and acquit them
of the charge in its entirety.
15. The appellants were convicted by the
learned Sessions Judge of an offence under section 148 of the Indian Penal Code
and of two offences of murder under section 302 read with section 149 of the
Code. The first offence, namely, that under section 148 of the Code, falls to
the ground with the acquittal of appellants Nos. 4 to 6, and so does that under
section 149 thereof. It is however quite clear from the findings arrived at by
us, especially those relating to the nature of the injuries suffered by the two
deceased and the consequences resulting from them that the two offences of
murder were committed by appellants Nos. 1 to 3 in furtherance of their common
intention so that each one of them is liable to conviction on two counts under
section 302 read with section 34 of the Indian Penal Code.
We hold accordingly and sentence each of
those three appellants to imprisonment for life on each count with a direction
that the two sentences of life imprisonment shall run concurrently.
Accordingly, the appeal fails in so far as they are concerned except in
relation to the modification in the conviction and sentences as directed above.
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