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BOMBAY HIGH COURT
Ravindra V. Ghuge and B.U. Debadwar, JJ.
State of Maharashtra – Appellant
versus
Bhaskar Tukaram Kamble and Ors. – Respondents
Criminal Appeal No.215 of 2003
Decided on 4.3.2021
(A) Criminal Law – Appreciation of evidence – Every court has to be extra cautious and careful while appreciating testimony of eyewitnesses and more so, if such eyewitnesses are related to victim – An extra caution has to be adopted by courts while analyzing testimony of witnesses related to victim – Court also has to assess whether, such relatives are manufactured witnesses – Testimony of a solitary witness can also be a basis for conviction – Merely because a witness is related to deceased or victim of a crime, such witness cannot be characterized as an interested witness – Term “interested” postulates that a witness must have direct or indirect interest in getting an accused convicted due to animosity or for some other oblique motive. (Paras 14 and 17)
(B) Indian Penal Code, 1860 – Sections 302, 307, 325, 326, 147, 148 and 149 – Bombay Police Act, 1951 – Section 135 – Criminal Procedure Code, 1973 – Section 378(2)(b) – Murder, attempt to murder, hurt and rioting – Common object – Appeal against acquittal – If eyewitnesses are also injured victims and are natural witnesses, there should not be over-insistence for corroboration – Facts are not so glaring as to doubt contents of FIR in view of time lag of about 11 hours in registering FIR – Testimony of victims, though may have minor or negligible discrepancies, are corroborated by medical evidence – Once Court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of common object of that assembly, or such as members of that assembly knew to be likely to be committed in prosecution of that object, every member of that unlawful assembly is to be held guilt of that offence – After arriving at such finding, it would not be open to Court to assess as to who actually did offensive act or require prosecution to prove which of members did offensive act – Section 149 of IPC would not apply in present case as family gathering on platform could not be said to be an unlawful assembly under Section 141 of IPC – Conviction and sentence modified. (Paras 24, 25, 53, 64, 79 and )
Result: Appeals Partly allowed.
JUDGMENT
Ravindra V. Ghuge, J.—By this appeal under Section 378(2)(b) of the Code of Criminal Procedure, 1973 (CrPC), the State seeks to challenge the judgment and order dated 13.11.2002 delivered by the learned Additional Sessions Judge, Hingoli in Sessions Trial No.42/1999, vide which, all the ten accused have been acquitted from the charge of having committed offences punishable under Sections 302, 307, 325, 326, 147, 148 and 149 of the Indian Penal Code and Section 135 of the Bombay Police Act, 1951 (hereinafter referred to as “the 1951 Act”).
2. Out of the ten accused, accused No.1 (Bhaskar Tukaram Kamble) and accused No.10 (Antakalabai w/o Gyanoji Kamble) have passed away during the pendency of the case before the Trial Court. The trial, therefore, abated as regards these two deceased accused. During the pendency of this appeal, accused No.6/ Gyanoji has passed away on 27.11.2007 and accused No.8 Vinod has passed away on 25.05.2015. This Appeal against acquittal, therefore, abates against accused No.6/ Gyanoji and accused No.8/ Vinod.
3. The prosecution had put forth it’s case before the Trial Court as under :-
(a) The first informant-Deorao Amruta Gaikwad (PW-1) lodged a complaint at Hingoli Rural Police Station at about 06:30 AM on 20.08.1998 and stated therein that on 19.08.1998, he was returning from the field at about 06:00 to 06:30 PM. The accused Baburao Gyanoji Kamble was sitting on the platform (otaa) in front of his house along with Bhaskar Kamble, Shivaji Kamble, Tukaram Kamble, Antakalabai Kamble, Shobhabai Kamble. The brother of PW-1, namely, Mohan (deceased victim) approached Bhaskar, whose wife Bhartabai was the proprietor of the fair price licence shop. The deceased Mohan had gone to Bhaskar for demanding the grains from the quota of the previous month. Noticing that Mohan was demanding grains, Bhaskar called him closer and started abusing him. Thereafter, Bhaskar gave a physical blow to Mohan, who fell down on the ground. Baburao Kamble picked up a big stone and smashed the face of Mohan. Shivaji then came with an axe and assaulted Mohan. Natha Kamble assaulted Mohan with stick and stones. Vinod Kamble then assaulted Mohan with stones. Ramchandra Kamble, Gyanoji Kamble, Tukaram Kamble, Antakalabai Kamble and Shobhabai Kamble were pelting stones on Mohan, who had fallen to the ground. The mother of the deceased Gayabai started shouting and screaming. Baburao Kamble gave a stone blow on the forehead of Gayabai. Shivaji Kamble also assaulted her with an axe. Vinod Kamble, Ramchandra Kamble, Gyanoji Kamble, Tukaram Kamble, Antakalabai Kamble and Shobhabai Kamble were pelting stones. The sister-in-law of the informant, Shobhabai had tried to cover the body of Mohan so as to protect him. Shivaji Kamble gave an axe blow on the right side of her forehead. These accused picked up stones and pelted them towards the deceased. Natha Kamble used a stick to beat the mother of the deceased. PW-1 started shouting. Bhaskar Kamble gave a stick blow and Baburao Kamble assaulted Shobhabai with a stone. Natha Kamble assaulted her with a stick, which fractured her right hand. It was around 08:00 PM when this incident took place. There were electric bulbs on the public lamp poles. There were two bulbs on that pole and the pole was in front of the house of PW-1. Two electric bulbs affixed by the informant were also lighted at his door and two bulbs were also lighted at the door of Baburao Kamble.
(b) The work of constructing a portion of the house of Baburao Kamble was undertaken and electric bulbs were lighted. PW-1 could see the incident even during the night hours. The accused were pelting stones on the body of Mohan by picking up such stones from the construction material.
(c) At about 08:30 PM on the same date, PW-1 went to the Police Patil. It was raining. There was mud on the way. The jurisdiction of Devthana Police Station extended to the village. From Devthana, PW-1, village Police Patil Shrirang R. Patil and
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