Judgment

Nanavati, J.-SLP (Crl.) No. 411/90 : Leave granted. Heard with Crl. A. No. 656/89.

These appeals arise out of the judgment of the Bombay High Court in Crl.A. No. 16/87. The High Court partly allowed the appeal filed by the convicted accused. It acquitted Accused No. 11 completely and altered the conviction of Accused Nos. 1-6 and Accused Nos. 8-10 from that under Section 302 read with 149 IPC to Section 304 Part II read with 149 IPC. Aggrieved by their acquittal, the State has filed Crimi­nal Appeal No. 656/89.

2. The prosecution case was that on 30.4.86, sometime between 7.30 and 7.45 a.m., while P.W. 1 - Kamal and his father P.W. 2 - Shravan were proceeding on their motor cycle to their field and were passing by the house of Accused No. 1 - Bandhu @ Pradip, A. 1 threw acid on them. As a result, both of them received burn injuries. Therefore, instead of proceeding to the field, they went to the police station and lodged a complaint against A.1 and other accused who were seen chasing them with weapons. It is also the prosecution case that soon thereafter A.1 alongwith A.2 to A.12 went to the house of P.W. 2 - Shrawan, entered his house, dragged his two sons - Anil and Arvind out and beat them merci­lessly. Anil died and Arvind received serious injuries. P.W. 7 -Surinder was also assaulted and he had also received one injury on his ear. Part of his ear was cut completely. P.W. 6 - Ambadas who had rushed to that place seeing the assault on Anil and Arvind, was also beaten by those accused. He was able to snatch away a sword from one of them and had wielded the same in his self defence. On these allegations, the 12 accused were tried for the offence punishable under Sections 147, 148, 302 read with 149, 120B of the Indian Penal Code and 25 of the Arms Act.

3. The trial Court did not find sufficient evidence against A.7 and A.12 and therefore acquitted them. All others were convicted under Section 148 and Sections 302, 307, 323, 324 and 326 all read with Section 149 IPC. They were, however, acquitted for the offence punish­able under Section 25 of the Arms Act.

4. The High Court after reappreciating the evidence held that the evidence of P.Ws. 4, 5, 6 and 7 was believable notwithstanding certain infirmities in their evidence and therefore the finding recorded by the trial Court that all the convicted accused except Accused No. 11 had formed an unlawful assembly and had assaulted deceased - Anil, Arvind, P.W. 6 and P.W. 7 in prosecution of their common object to beat them was proper. The High Court did not believe that the common object of the unlawful assembly was to cause death of Anil or any other person and, therefore, held that Accused Nos. 1-6 and Accused Nos. 8-10 should be convicted under Section 304 Part II IPC and not under Section 302 read with 149 IPC. The High Court did not believe the evidence regarding conspiracy and therefore acquitted all the accused of that offence. They were also acquitted of the charge of having committed the offence punishable under Section 307 read with 149 IPC.

5. Mr. Lalit - learned counsel, appearing for the accused-appellants submitted that it was not proved beyond reasonable doubt by the prose­cution that the acide throwing incident was the first incident on that day and if that was not the first incident then the genesis of the whole incident becomes doubtful and this court should hold that the prosecution witnesses have not given a true version as regard the manner in which the incident started on that day. We do not find any substance in this contention. Apart from the evidence of P.Ws. 1 and 2, we have the evidence of P.W. 8-Arun on this point. He is an inde­pendent witness as it was not even suggested that he was in any way related to the deceased or P.W. 2-Shravan. He has fully supported the prosecution case that while P.Ws. 1 and 2 were passing on a motor cycle, A.1 had thrown acid on them and that thereafter they were chased by some persons who were armed with weapons. Moreover