Judgment :-

R.M. Lodha, J.

This criminal appeal by special leave is directed against the judgment of the High Court of Judicature at Bombay whereby the Division Bench of that Court upturned the judgment of acquittal passed by the IInd Additional Sessions Judge, Raigad in respect of the present appellants and convicted them for the offences punishable under Section 302 read with Section 149, section 326 read with 149 and Section 148, IPC and sentenced them to suffer imprisonment for life and different period of sentence under other counts along with fine and default stipulation.

2. Nineteen persons were arraigned before the Trial Court for the offences under Sections 147, 148, 302 read with Section 149, section 302 read with section 34, section 307 read with section 149 and section 326 read with section 149, IPC. Trial Court

acquitted all of them. The prosecution challenged the judgment of acquittal before the High Court of Judicature at Bombay. The High Court granted leave to appeal against fourteen accused persons only. As against remaining five accused, leave was refused. During the pendency of appeal, one of the accused, against whom leave was granted, died. Of the remaining thirteen accused, the Division Bench affirmed acquittal of five. The Division Bench convicted eight accused as indicated above.

2.3. Before dealing with the points raised in the appeal, it is appropriate to set out very briefly the prosecution case. Phunde, a small village in Taluka Uran, District Raigad, Maharashtra has two groups; one group is politically associated with the Peasants and Workers Party (PWP) while the other group has alliance with the Congress (I) Party. The party of the assailants belong to PWP and the prosecution witnesses belong to Congress-I party. The deceased was also a Congress-I party worker. The relations between the two groups due to party politics seem to have been strained for quite some time. Several criminal cases have been lodged by these two groups against each other. On the outskirts of the village Phunde, there is a temple popularly known as Gurbadevi Temple. The said temple celebrates every year an annual fair with pomp and show; a Jagran is held in the night on the said occasion. On April 2, 1988, the annual fair at Gurbadevi Temple was being celebrated; the idol was adorned with ornaments and the entire temple complex was illuminated with electric lights. In the night, the villagers gathered in the temple for Jagran. The group belonging to Congress (I) party took active part in the management of the said fair. The celebrations continued until midnight. Thereafter, most of the villagers left the temple. However, 15-20 persons who were in management of the said festival stayed back to keep watch over the ornaments adorned by the idol. Few of those who stayed back were chit-chatting in Sabhamandap, while some of them were simply resting and others kept themselves awake by playing cards. In the intervening night of April 2, 1988 and April 3, 1988 at about 3 - 3.15 A.M., Ramesh Mhatre (A-3) came to the temple, had a look around and then left. A-3 did not speak to anybody. About 15-20 minutes thereafter, A-3 returned to the temple with a group of about 20 persons. All of them were allegedly armed with weapons like iron bar, swords, pharashi, sticks etc. As soon as they reached, they are said to have started attacking the people assembled there. Pandurang Chandrakant Mhatre (A-2) and Ramesh Mhatre (A-3) gave iron-bar blows on the back of Nandkumar Mhatre (PW-2) but he escaped and ran towards the village. The accused persons started shouting

`dhara-dhara `mara-mara. Then, they assaulted Suresh Atmaram Gharat (deceased), Sudin Mhatre (PW-4), Namdeo Mhatre (PW-5), Laxman Mhatre (PW-6), Gopal Thakur (PW-7), Mahindra Mhatre (PW-8) and Mahesh Bhoir (PW-10). Suresh Atmaram Mhatre, ran towards Uran- Panvel Road but the accused persons chased him. Maninath Shanker (A-12) assaulted him with sword. The other accused persons assaulted