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SUPREME COURT OF INDIA
M.K. Mukherjee and G.T. Nanavati, JJ.
Gajanan Amrut Gaykwad & Ors. - Appellants
versus
State of Maharashtra - Respondent
Criminal Appeal No. 465 of 1984
Decided on 1-9-1995
Counsel for the parties:
For the Appellants: S.N. Mehta and Mahendra Singh.
For the Respondent: G.B. Sathe.
Held: PW-l 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 No.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 Appellant Nos. 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 Appellant Nos. 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 Appellant Nos. 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 Appellant Nos. 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 eye-witnesses, particularly when they were supported by evidence of an independent witness Kanshi Ram (PW-6). From the evidence it, appears that his house is situated opposite the house of Appellant No.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. (para 5)
(ii) Evidence - Unlawful Assembly - When a person is attacked by a number of assailants - Failure of witnesses to specifically state which particular blow was given by which particular assailant - Not fatal- Their evidence cannot be discarded if otherwise it is believable. (Para 5)
(iii) Indian Penal Code, 1860 - Section 302/149 - Nature of offence - Unlawful Assembly Assault - As a result of blows given to deceased he had fallen down with serious injuries - Because his brothers came to his rescue no further blows were given to him - Subsequently assailants continued to beat others who came to rescue - Common object of assembly was to cause death - Conviction u/s 302/149 legally sustainable. (Para 6)
(iv) Indian Penal Code, 1860 - Section 323/149 - Nature of offence - Appellants 5 and 6 came out of their house with sticks on hearing cries - They saw brothers of the victim running towards appellants 1 to 7 - Appellants 5 and 6 joined unlawful assembly of appellants 1 to 7 and took part in beating those who came there - They should have been convicted only u/s 323/149.
Held: From the evidence on record it appears that their house is situated away from the house of Appellant No.8. It is towards the west of the house of Appellant No.8. On 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 unlawfu1 assembly of which they became a part later on. In our opinion, like Appellant Nos. 8 and 9 they should have been convicted only under Section 323 read with Section 149. (para 7)
JUDGMENT
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 appellant Nos. 1 to 7 under Section 302 read with Section 149 IPC and appellant Nos. 8 and 9 under Section 323 read with Section 149. Appellant Nos. 1 to 7 have been ordered to suffer imprisonment for life. Appellant Nos. 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. Appellant Nos. 1 to 7, in prosecution of their common object, assaulted Gulab with iron bar and sticks and caused his death. At that time Appellant Nos. 8 and 9 were instigating Appellant Nos. 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 Appellant Nos. 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 Appellant Nos. 1 to 7. Dwarka and Shobha who had fol1owed Dinkar and Bhaskar were also given stick blows by Appellant Nos. 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, Gulaband Dinkar died. It was alleged that about two years before the date of the incident there was a quarrel between the families of Appellant No.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 eye-witnesses and Kanshi Ram (PW-6). The learned Sessions Judge found it unsafe to rely upon the evidence of eye-witnesses because of contradictions and inconsistencies in their evidence and as no blood was found in front of the house of Appellant No.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 eye-witnesses 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 eye-witnesses that the injured eye-witnesses and Dinkar were given blows with sticks by Appellant Nos. 1 to 7. As Appellant Nos. 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 eye-Witnesses 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 subm
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