JUDGMENT

K. S. Radhakrishnan, J.:- Appellants herein, the original accused A-1, A-3 and A-7, were charge-sheeted along with certain other accused persons for the offences punishable under Section 452, Sections 341, 302 IPC read with Section 34 IPC etc. The trial Court acquitted all the accused persons in Sessions Case No. 7 of 1989 vide its judgment dated 25.9.1989.

2. On appeal by the State, the High Court set aside the acquittal of the appellants of the offences under Section 452 read with Section 34 IPC and convicted and sentenced each one of them with a sentence of 12 years and fine with default sentence. The High Court also sentenced them for offences punishable under Section 302 read with Section 34 IPC to suffer imprisonment for life and pay a fine of Rs.5,000/-. The sentences were ordered to run concurrently. Aggrieved by the same, appellants herein have come up with this appeal.

3. The prosecution version is as follows:

Deceased Sanjay Gaonkar and his two friends, namely, Anil Raut - PW8 and Rajan Angane - PW15 were chit-chatting in front of Kishor Cycle Mart at Bharad Naka, Malwan. At that time, the complainant Suryakant Ramchandra Phansekar – PW4, a resident of Malwan having his house in an area known as Vaiery, had gone to a saloon situated just in front of Kishor Cycle Mart, which was owned by Vijay Chavan – PW3. PW4 used to go to that saloon regularly for reading newspaper. While the complainant was at that shop, at about 7.30 pm on 19.10.1987, he heard a voice of ‘run run’. He came out of the shop and found that the deceased Sanjan Gaonkar was running towards the house of Shobhana Parkar, which was very near to the said saloon and the appellants 1 to 3 were chasing him with weapons like sword and gupti in their hands. Deceased Sanjay Gaonkar was about to enter the house of Shobhana Parkar when original accused no. 1 gave a blow with a weapon like Gupti on the neck of the deceased and he fell on the ground. Other two accused persons assaulted the deceased with weapons. PW4, noticing the above incident, went to Malwan police station and informed them of the incident and, on request, he gave the complaint in writing. Police rushed to the place of incident and found Sanjau Gaonkar lying in a pool of blood just inside the door of the house of Shobhana Parkar. The police, later, registered the offence at GR No. 81/87.

4. The inquest panchnama (Ex. 20) noticed several incised injuries on the body of the deceased. The postmortem report Ex. 48 and the report column no. 17 noticed the injuries inflicted on the deceased. Having noticed the post-mortem report and evidence on record, in our view, the trial Court as well as the High Court have correctly come to the conclusion that the death of Sanjay Gaonkar was homicidal.

5. The prosecution, in order to bring home the guilt, had examined as many as 20 witnesses, out of which PWs 4, 8, 15 and 16 are the eye witnesses. The trial court noticed various discrepancies, contradictions and improvements in the evidence rendered by the eye witnesses and held that the prosecution had failed to prove that, at the relevant time, there was an unlawful assembly of five or more persons and that the accused persons had committed offences punishable under Sections 147, 148 and 149 IPC. The trial Court had also commented upon the faulty investigation conducted by the police and ultimately, gave the benefit of doubt to all the nine accused persons and they were acquitted.

6. The High Court, as already indicated, sustained the acquittal of rest of the accused persons, but convicted and sentenced the appellants. The High Court also concurred with the view taken by the trial Court that the prosecution had failed to prove that there was an unlawful assembly of five or more persons and, hence, there was no question of accused persons constituting a unlawful assembly or their being members of the unlawful assembly. The High Court also, therefore, held that there is no evidence to show that the acc