JUDGMENT - VISHNU SAHAI, J.:-The appellants aggrieved by the order dated 14-12-1987 passed by the IIIrd Additional Sessions Judge, Thane in Sessions Case No. 513 of 1986 convicting them under sections 147 I.P.C., 148 I.P.C. and 326 read with 149 I.P.C. and sentencing them to undergo a separate sentence of one years rigorous imprisonment under the first two counts and 4 years rigorous imprisonment and a fine of Rs. 300/- under the 3rd count, had come up in appeal before me.

2. The prosecution case in brief is that on 27-6-1986, at about 5.30 p.m. all the appellants along with 15 to 20 absconding Adiwasis formed unlawful assembly in village Jawsai, Kathopada, Ambarnath, Taluka Ulhasnagar, District - Thane with the object of committing murders of the complainants Ramanand Ramkamalprasad Yadav, Jahir Abbas, Dineshsingh, Krishnalala and Sanjay Patil. It is alleged that all the appellants were armed with deadly sticks. It is said that sticks as a result of assault by the appellants Jagganath Narayan Nikam and Suresh Kamlu Mukane with sticks one Sanjay Patil was killed and Ramanand (P.W. 1), Jahir Abbas (not examined), and Dineshsingh (P.W. 2) sustained injuries. The allegation of the prosecution was that Krishnalal Bodraj Daharia was also injured but Dr. Sunilkumar Shivchandra Shastri (P.W. 5) who medically examined him, vide his injury certificate Exh. 29, found, no injury on his person.

3. The First Information Report in the instant case is alleged to have been lodged within 41/2 hours of the incident taking place i.e. at 10.45 p.m. on 27-6-1986. The aforesaid F.I.R. was recorded by P.W. 8 P.S.I. D.R. Gore of P.S. Ambernath.

4. The injuries of the victims were medically examined by Dr. Sunilkumar Shivchandra Shastri (P.W. 5) of Ulhasnagar Central Hospital. Doctor examined the informant Ramanand Ramkamal Prasad Yadav on 27-6-1986 at 7.45 p.m. and found on his person the following injuries:

1. C.L.W. over the scalp region over temporal parietal region on left side dimension 10 c.m. long 1 c.m. wide and bone deep. Margins were irregular, Bleeding, present.

2. C.L.W. over left side of forehead just in the hair line with the dimension of 2 c.m. x 1/2 c.m bone deep. Margins irregular. Bleeding present.

3. C.L.W. over the right cheek 3 c.m. length x 1 c.m. breadth sub-cutaneous tissue deep. Margin irregular bleeding present.

4. Contusion over right hypochondriac with the dimension of 10 c.m. x 4 c.m. clinically no evidence of fracture.

5. Bruise over the left medial aspect of hand 4 c.m. x 5 c.m. X-ray was taken for injury No. 5 bearing No. 2064 show fracture of styloid process of ulna bone.

On the same day Dr. Sunilkumar (P.W. 5) examined the deceased Sanjay Kanha Patil and found on his person following injuries :

1. C.L.W. over right side of temporal region transverse in direction 3 c.m. x 1/2 c.m. x bone deep with irregular margin and bleeding was present.

2. Haematoma encirculed in injury No. 1 of 5 c.m. diameter.

3. Haematoma over left temporal region 4 c.m. x 3 c.m.

The same day at about 1.40 p.m. doctor examined Dineshsingh (P.W. 2) and found on his person the following injuries :

1. Haemotoma over the posterior 1/3 of left forearm at Upper 1/3 region 7 c.m. x 3 c.m.

2. Whip mark over the left supra scapular region 2 c.m. x. 10 c.m.

3. Whip mark over the left infra scapular region 2 c.m. x. 10 c.m.

4. Whip mark over the posterior aspect of right calf region 2 c.m. x. 5 c.m.

5. In the opinion of the doctor the injuries of all the aforesaid persons could be caused within 24 hours by hard and blunt object.

6. It is alleged that Sanjay Kanha Patil succumbed to his injuries on 2-7-1986 at 3.30 a.m. The autopsy of his dead body was conducted by Doctor Vyankateshwaran (P.W. 4). Doctor Vyankateshwaran found on the person of the deceased the following injuries :

1. Well sutured C.L.W. 3 c.m. long irregular on the right fronto-parietal region. 2 c.m. from mid-line.

2. Well sutured surgical wound on left frontoparietal region 15 c.m. long.

3. Old healed scar o

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