Judgment

MISRA, J.:- The present appeal by special leave has been filed by the State of Maharashtra against the judgment of the Bombay High Court dated 18th. of Sept., 1974

2. The incident giving rise to the present appeal took place on the 30th of July, 1972 in connection with an election to the Panchayat Samiti for the Nere constituency scheduled to be held on 31st of July, 1972. The Peasants and Workers Party as well as the Congress Party fielded their own candidates for that election. The candidate for the Congress Party was one Meghnath Mankame. It appears that in connection with their election campaign thirty or forty workers of the Congress Party had proceeded to Dhamani village on the morning of 30th of July, 1972. After contacting some voters there they were returning to Nere along with some of the voters. According to the prosecution an understanding had been arrived at between the rival parties to the effect that their respective workers would not carry voters with them. Contrary to the understanding the workers of the Congress Party were carrying some of the voters with them on their way back from Dhamani. When the workers of the Congress Party along with those voters reached a place known as Vakyacha Mal and were proceeding along a track, 50 or 60 persons belonging to the Peasants and Workers Party appeared from behind bushes armed with guns, axes and sticks. Bama Kana Patil, accused No. 18, exhorted the members of the Peasants and Workers Party to beat the members of the Congress Party headed by Nama Padu Kadav. Thereupon they attacked them. As a result of such attack Nama Padu Kadav, Mahadu, Dhondu, Balu, Rajaram, Dasharath, Rambhau, Sudam, Baliram. and Jagan Ragho received bodily injuries. One Vithu Bama Mhaskar, who was assaulted with an axe died on the spot. Nama Padu Kadav, Mahadu and Dhondu reached Nere where they met Mankame, who was the candidate of the Congress Party for the election from Nero constituency. Meghnath Mankame tried to convey the information of the incident to the police of Panvel Station. He, however, could not do so as the telephone was not in order. Nama Padu Kadav and others, therefore, proceeded towards Panvel. On their way near the river they could get a police jeep car. They reached Panvel in that vehicle. Nama Padu Kadav then went to the hospital where he received necessary medical treatment. Meghnath Mankame had sent a chit informing the police, sub-inspector about the incident. On receipt of the chit of Mankame the police sub-inspector Inamdar reached the hospital and after contacting Nama Padu Kadav took down his complaint about the incident. At about 8.30 p.m. the police sub-inspector registered case and took up the investigation. He went to the place at occurrence, held an inquest over the dead body of Vithu Rama Mhaskar on 31st July, 1972. He effected arrest of some of the accused on the same day and recorded the statements of the witnesses. The learned judicial Magistrate held necessary inquiry and committed all the 23 accused to the Court of Session for trial. The accused denied charge and claimed to be tried. During The course of trial the prosecution examined in all 37 witnesses.

3. On the evidence adduced by the prosecution the learned Sessions Judge came to the conclusion that there was an unlawful assembly on the Vakyacha Mal near Vaje and the members of such unlawful assembly bad assaulted Nama Padu Kadav and others. Accused Nos. 1 to 4 and 7 to 22 were present as members of such unlawful assembly. The presence of accused Nos. 5, 6 and 23 was not spoken of by anyone. Therefore, they were found to have no concern with the incident which took place on the Vakyacha Mal. The evidence showed that accused Nos. 1, 2, 7, 11 and 18 were armed with deadly weapons like guns and axes at the time of assaulting the prosecution witnesses. Accused Nos. 1, 2, 7, 10, 11, 14, 13 and 18 had inflicted bodily injuries on prosecution witnesses.

4. In the result the Sessions Judge found accused N