JUDGMENT
H.D. Patel, J.
1. Upon each of the appellants being convicted for the offence punishable under section 147 of the Indian Penal Code and each of them is sentenced to suffer rigorous imprisonment for one year ; for the offence punishable under section 148 of the Indian Penal Code and each of them is sentenced to suffer rigorous imprisonment for two years; for offence under section 302 read with section 149 of the Indian Penal Code and each of them is sentenced to suffer rigorous imprisonment for life; for offence punishable punishable under section 307 read with section 149 of the Indian Penal Code and each of them is sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 100/- each, in default to suffer rigorous imprisonment for one month; for offence under section 323 read with section 149 of the Indian Penal Code and each of them is sentenced to suffer rigorous imprisonment for six months, by judgment dated 9th December, 1985 in Sessions Case No. 43 of 1985 delivered by the Additional Sessions Judge, Buldana, the appellants named above have filed this appeal.
2. The case of the prosecution was that the deceased Namdeo Jayram Takcore was resident of village Itvi, Taluka Lonar, District Buldana. Land admeasuring 12 acres was allotted to him by the Government and he was in possession thereof. He created a house in the said land and was residing there with his two wives, Sarubai (P.W. 2) and Dagadabai (P.W. 9), four sons namely, Rama (P.W. 8), Datta (P.W. 7), Laxman (P.W. 4) and Jayram and three daughters namely, Emnibai, Radhabai and Satibai, just adjacent to the houses was the cattle-shed of the deceased Namdeo. Only Rama (P.W. 8) and Matibai the son and daughter respectively of the deceased Namdeo were married. The talks about the marriage of his son Datta (P.W. 7) with Rukhmini, the daughter of the appellant No. 4 Punjaji, were finalised about a year back. The appellants Nos. 1 to 6 and one Mahadu (the absconding accused) are also residents of the same village and are closely related to each other. Datta (P. W. 7) was then serving in the flour mill owned by one Prakash Bora. Rukhmini used to visit the flour mill for the purpose of grinding grains and both Datta (P.W. 7) and Rukhmini used to talk with each other. This was not appreciated by the appellant No. 4 Punjaji. He hence decided not to give his daughter Rukhmini in marriage to Datta (P.W. 7). It is also the prosecution case that some persons from Naygaon had come to the house of the appellant No. 4 to see the daughter Rukhmini. They did not approve of the girl. Where upon the appellant No. 4 Punjaji and his nephew Mahadu (the absconding accused) suspected that the deceased Namdeo and his son Datta must have played some mischief and that was the cause for not approving the girl by the persons who had come from Naygaon. The relations between the appellants and Mahadu (the absconding accused) on one side and the deceased Namdeo and his son Datta (P.W. 7) on the other had considerably strained.
3. It is alleged by the prosecution that soon thereafter the deceased Namdeo was assaulted by the appellant No. 4 Punjaji by dragging him out of the house of one Maroti Teli where he had gone with his son Datta (P.W. 7) for purchasing Jowar and was beaten by a shoe. Both deceased Namdeo and Datta (P.W. 7) left that place and proceeded towards the flour mill for grinding flour. There they were also threatened by the appellant Nos. 1, 2, 4, 5 and 6 that they would be killed. Even on the next day, Mahadu threatened Datta in the field of one Dharamchand Bora while he was taking his bullocks to the river. The threat was that he and his father the deceased Namdeo would be killed. After returning home Datta (P.W. 7) narrated the incident to his parents and brothers and a report (Exhibit 36) was lodged at the Police Station Lonar.
4. The occurrence, which is the subject matter of the charge, took place at 11 P. M. on 3-4-1986 in the land where deceased Namdeo and his family resided. Sarubai (P.W. 2) the first wife, his son Laxman and daughter Radhabai were sleeping in the house whereas the deceased Namdeo, his second wife Dagadabai (P.W. 9), his son Jayram and daughter Satibai slept in the cattle-shed. Rama (P.W. 8) and Datta (P.W. 7) the two sons of deceased Namdeo slept on the bedstand of thrashing floor just adjacent to the house as both of them wanted to guard the harvested wheat crop which was stacked there. It was a moonlit night. Rama (P.W. 8) and Datta (P.W. 7) were assaulted at about 11 p. m. They woke up and found that the persons assaulting were appellants Nos. 1, 2, 3, 5 and 6. They had sticks, in their hands. As they were being beaten by sticks they shouted and upon hearing the noise their parents and other family members rushed to the spot. It is also the prosecution case that the appellant No. 1. Arjun pulled out a knife and inflicted two blows on the head of Datta (P.W. 7) and he sustained bleeding injuries. Datta (P.W. 7) fell down as he felt giddy. The deceased Namdeo who intervened in between was also assaulted by the appellant No. 1 Arjun by knife inflicting blows on head, nose, cheeks and shoulders. On account of these blows, the deceased Namdeo sustained bleeding injuries. All the appellants also beat Namdeo with sticks. Sarubai (P.W. 2) and Dagdabai (P.W. 9) also received stick blows as they tried to intervene. Datta (P.W. 7) and Rama (P.W. 8) getting an opportunity fled from that place. Datta went towards the mango tree and Rama fled towards the neem tree and concealed themselves. The deceased Namdeo was found lying in a pool of blood in the cattle-shed. The accused persons thereafter searched for Rama and Datta and not finding them anywhere, they disappeared on the hill side.
5. After everything was quiet, Datta (P.W. 7) returned to the house and noticed the condition of his father. From there, he went to the field of Ashruba (P.W. 11) and returned with him to his house. The deceased Namdeo was shifted from the cattle-shed to his house. Both Sarubai (P.W. 2) and Dagdabai (P.W. 9) were wiping out the blood oozing from the injuries caused to deceased Namdeo by cloth. Water was poured into the mouth of the deceased Namdeo upon his demand. He also instructed his wives not to send his sons outside in the night. Thereafter, deceased Namdeo breathed his last. Datta (P.W. 7) and Ashruba (P.W. 11) went to the latter’s field and stayed there for the night. Datta returned only in the morning. By that time, Rama (P.W. 8) had also returned to the house. He informed Datta that at the time of the incident, he had seen appellant No. 4 and Mahadu (the absconding accused) standing under the Babul trees near the house and were armed with sticks.
6. Thereafter, Datta informed Parasram (P.W. 5) the Ex-Police Patil and Ram (P.W. 6) the Upsarpanch of the village about the incident. Ram advised Datta to lodge a report to the Police Station, Lonar and a complaint (Ex. 49) came to be lodged. The offence was registered under sections 147, 148 and sections 302 and 307 read with section 149 of Indian Penal Code against the appellant.
7. P.S.I. Bainade (P.W. 13) investigated into the matter and upon its completion, filed a charge-sheet in the Court of J.M.F.C., Mehkar, who committed the accused persons to the Court of Sessions for trial. The appellants pleaded “not guilty” to the charge and claimed to be tried. Their defence was one of denial and false implication due to enmity before the trial Court.
8. As many as 13 witnesses were examined by the prosecution to establish the guilt. On the basis of the evidence on record, the learned Sessions Judge found that the appellants along with Mahadu (the absconding accused) had formed an unlawful assembly and each of them were its members, and the common object of the said assembly was to commit murder of the deceased Namdeo and inflict injuries on Datta (P.W. 7) and also other members of the family. The learned trial Court also found that the appellants were armed with deadly weapons like knife and sticks and the appellants used force or violence. A finding was also arrived at that the deceased Namdeo died a homicidal death. The learned Additional Sessions Judge, Buldana also found that the appellants in prosecution of the common object of the abovesaid assembly did the act to cause death of Namdeo and the appellants did the said act with the intention of causing death of Namdeo or with the intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death. A further finding was also arrived at that the appellants in prosecution of the common object of the abovesaid assembly attempted to commit murder of the complainant Datta (P.W. 7) by inflicting injuries on his person by means of knife and sticks. Lastly, it was also found that the appellants in prosecution of their common object of the aforesaid assembly voluntarily caused hurt to Sarubai (P.W. 2), Laxman (P.W. 4), Rama (P.W. 8) and Dagdabai (P.W. 9). Accordingly, by Judgment, dated 5th December, 1985 the appellants were held to be guilty of offences punishable under sections 147, 148 and sections 302, 307, 323 read with section 149 of the Indian Penal Code and were sentenced to various terms and fine with a direction that substantive sentences were to run concurrently. Aggrieved by this Judgment, the present appeal is filed.
9. Shri M. N. Daga, Advocate, the learned Counsel appearing for the appellants, submitted that the learned Additional Sessions Judge, Buldana failed to appreciate the evidence of eye-witnesses which was in direct conflict with the medical evidence and hence, wrong conclusions were arrived at. It was also further submitted that in no circumstances, the appellant could be held guilty of an offence punishable under section 307 read with section 149 of the Indian Penal Code or for the offence punishable under section 302 read with section 149 of the Indian Penal Code. A further submission was also made that the learned Court below should have accepted the defence of the appellants that they were falsely implicated in the crime because of the enmity. The respondent/ State represented by Shri P. V. Naik, Additional Public Prosecutor, however, supported the reasonings given in the Judgment of the Court below.
10. The entire record was perused with the assistance of the Counsel appearing on both sides. It would be appropriate first to find out whether the appellants Nos. 1 to 6 along with Mahadu (the absconding accused) formed an unlawful assembly and what, if any, was the common object?
11. Needless to mention that the prosecution has to establish that five or more persons had assembled; that they constituted an unlawful assembly within the meaning of section 149 of the Indian Penal Code that the appellants were members of the assembly ; that the force or violence was used by any member of the assembly and that it was used in prosecution of its common object. For an offence under section 148 Indian Penal Code, besides the aforesaid ingredients, the prosecution has to establish that the accused were armed with deadly weapons or with anything which, used as a weapon of offence, is likely to cause death. It is in this background that the evidence will have to be scrutinised.
12. The evidence of the five eye-witnesses to the incident would be relevant. They are Sarubai (P.W. 2), Laxman (P.W. 4), Datta (P.W. 7), Rama (P.W. 8) and Dagdabai (P.W. 9). Sarubai (P.W. 2) in her deposition narrated that the talks regarding the marriage of Datta (P.W. 7) with Rukhmini, the daughter of the appellant No. 4 Punjaji were finalised about a year prior to the date of the incident in question. She further deposed that later on the appellant No. 4 Punjaji refused to give his daughter in marriage to Datta (P.W. 7) as they had a love affair with each other prior to the marriage and this was not appreciated by the appellant No. 4. The appellant No. 4 Punjaji, therefore showed his daughter Rukhmini to the guests from Naygaon but they did not approve the girl. Regarding the incident in question. Sarubai (P.W. 2) deposed that she was sleeping in the house along with Radhabai and Laxman. Rama (P.W. 8) and Datta (P.W. 7) were sleeping on the bedstand of the thrashing floor and her husband deceased Namdeo along with Dagdabai (P.W. 9) , Jayram and Satibai were sleeping in the hut adjacent to the house. According to her, somewhere near midnight she heard noise of beating and she saw her husband the deceased Namdeo and Dagdabai (P. W. 9) going towards the thrashing floor. She further deposed that she herself and Laxman also followed them. On reaching the spot she deposed that she found that the appellants who were armed with sticks were present on the thrashing floor and were beating Rama (P.W. 8) and Datta (P.W. 7) by sticks. She also narrated that when her husband Namdeo tried to intervene, he was also beaten by sticks.
13. The witness Sarubai further deposed that the appellant No. 1 took out a knife and inflicted blows on deceased Namdeo on the head, nose, chest and shoulders. She next deposed that she herself, Dagdabai her co-wife, Laxman were also beaten up by sticks. According to her, Datta was also given blows of knife on his head by appellant No. 1 Arjun. In this manner, all sustained injuries. Later, the witness deposed that Datta (P. W. 7) escaped from the clutches of the appellants and ran towards the mango tree while Rama fled towards the neem tree. She also stated that her husband ran towards the cattle-shed where he was followed by the appellants and was severally beaten by sticks. With such beating, the deceased Namdeo fell unconscious on the ground. Only thereafter the appellants left the place. The witness then narrated that Datta (P.W.7) came there with Ashruba (P.W. 11). The deceased Namdeo was given water, who subsequently breathed his last. In cross examination of this witness, no questions are asked about the incident. Suggestions were, however, made that the relations between the two families were strained and they were being falsely implicated because of the enmity. The other suggestion was that some Pardhis and Cadars, whose business is to commit robberies and dacoitees, may have come to the field of deceased Namdeo on the night of the incident.
14. The next witness examined by the prosecution was Laxman (P.W. 4). He is a young boy of 14 years. He narrated about, the settlement of marriage of his elder brother Datta (P.W. 7) with Rukhmini, daughter of appellant No. 4 Punjaji, which was ultimately cancelled. Regarding the incident, he first deposed as to where each one of the family members had slept on that night and further proceeded to say that he woke up due to commotion and went towards the thrashing floor. By that time, his parents were already there. He deposed that he saw his father, the deceased Namdeo, being beaten by the appellants by means of sticks and a knife. He also saw the assault made by the appellants on his elder brothers Datta (P.W. 7) and Rama (P.W. 8). He then deposed that all of them were beaten because they tried to intervene. He then stated that he himself, his stepmother Saruabai (P.W. 2) and his natural mother Dagdabai (P.W. 9) were assaulted by sticks. Many of them suffered from bleeding injuries. The witness also deposed that Datta escaped and ran towards the Mango tree and Rama fled towards the neem. According to him, his father ran towards the cattle-shed where the appellants followed and they severely assaulted him, Thereafter, the appellants fled. He also further deposed that his father the deceased Namdeo instructed not to allow Datta and Rama to go out that night. His further deposition was that later on his father died. Nothing substantial was asked in the cross-examination about the incident in question. The witness, however, admitted that his father Namdeo and his brother Datta would involve the appellants in some matter.
15. The third eye-witness is the complainant Datta (P.W. 7) himself. He deposed that he knew the appellants well. He narrated about the talks regarding the marriage with Rukhmini, the daughter of the appellant No. 4 Punjaji, and development of their love affair and the talks which they had during their meeting in the flour mill where Rukhmini used to go for grinding the grains. He further goes on to depose that the marriage could not be settled and some persons from Naygaon had come to see Rukhmini but they did not approve the girl and hence, the appellant No. 4 suspected that he himself and his father deceased Namdeo had played some mischief which prompted the Naygaon people to leave.
16. The witness Datta further deposed that thereafter, he and his father the deceased Namdeo had gone to the house of one Maroti for bringing Jowar. The appellant No. 4 also came there. He dragged his father out of the house of Maroti and beat him by a shoe. From there, the witness deposed that, he and his father went to the flour mill for grinding jowar. There the appellants Nos. 1, 2, 4, 5 and 6 threatened then that would be killed. The witness further deposed that thereafter while he was taking his bullocks to the river, Mahadu (the absconding accused) met him in the field of Dharamchand and threatened to kill him and his father. Upon his return to the house, he informed about the threat to his parents and brothers.
17. His further deposition was about the incident in question which took place at about 10 or 11 p. m. He deposed that on the fateful night, he and his brother Rama (P.W. 8) slept on the thrashing floor because sheaves of wheat crop were stacked there. He also described where other members of the family slept that night and which confirms with what is narrated by Sarubai (P.W. 2) and Laxman (P.W. 4). According to him it was a moonlight night. He further narrated that he and his brother Rama woke up as they felt that they were being assaulted and saw the appellants Nos. 1, 2, 3, 5 and 6 there. They were armed with sticks. He deposed that all the appellants started beating him and his brother and hence, they shouted. On hearing the noise, other members of the family rushed there. According to the further deposition of the witness, the appellant No. 1 Arjun took out his knife and dealt two blows on his head. Where upon the deceased Namdeo tried to intervene but he was also assaulted by knife. The sticks were freely used for beating everyone present there. Sarubai and Dagdabai were also not spared. All of them sustained bleeding injuries. Subsequently, the witness deposed that he exempted and ran towards the mango tree and concealed himself there. He also deposed that his brother Rama fled in southern direction . After the appellants left, the witness stated that he returned to the house and he saw his father lying in pool of blood in the cattle-shed. He then went to the field of Ashruba (P.W. 11) where he met him and they both came to his house. Both of them lifted Namdeo and brought him in the house. The witness confirms that the deceased Namdeo instructed those present not to go out of the house. Within a short time, the deceased Namdeo breathed his last.
18. The witness then narrated that he went to the Police Patil (P.W. 5) and Upsarpanch (P. W. 6) and informed them about the incident. On advice, the witness stated that he lodged a report (Exhibit : 9) to the Police Station Lonar. He was then referred to the hospital for treatment. On return to his house, he found that Rama (P.W. 8) was present there. He deposed that the appellant No. 4 Punjaji and Mahadu (the absconding accused) were standing under the Babul tree near the house at the time of the incident.
19. In cross-examination, attempts were made to point out that there was delay in lodging the report. The witness admits about the strained relationship between the two families. The suggestion that the injuries were caused in a scuffle with the thieves who had visited the thrashing floor was denied.
20. Rama (P.W. 8) practically corroborates Datta (P.W. 7) and other witnesses in every detail. In specific, he deposed that while he was running away after the assault towards the southern side of the house, he saw the appellant No. 4 Punjaji and Mahadu (the absconding accused) standing under the Babul tree which is very near the house and were armed with sticks. He also deposed that he informed Datta about the presence of appellant No. 4 Punjaji and Mahadu (the absconding accused) near the house. These statements go unchallenged in the cross-examination.
21. The last witness Dagdabai (P.W. 9) fully corroborates other witnesses is all respects.
22. Reliance was heavily placed by the appellant’s Counsel on the admission given by Laxman (P.W. 4) a young boy of 14 years that his father deceased Namdeo and his brother Datta (P.W. 7) had given threats that they would involve the appellants in some matter and, therefore, their defence that the appellants are falsely implicated should be accepted. It was also submitted that this could be a case of wrong identification. We see no force in either of the submissions canvassed. It may be that such threats as deposed to by Laxman were given considering the enmity and the strained relationship that existed between the two families but merely because such a threat was given the voluminous oral evidence against the appellants cannot be ignored. As many as 5 witnesses have deposed to say that it was only the appellants who had come on the night of the incident and none else and they were also armed with sticks. There is enough evidence on record to show that it was a moonlit night and there could be no mistake in identification of the appellants and particularly when the appellant were not strangers to these witnesses. It will be relevant to mention here that most of the eye-witnesses were injured and they have identified the appellants and their evidence cannot be lightly brushed aside.
23. It was next sought to be contended that all the eye-witnesses belong to the same family and hence, they being interested witnesses their evidence need not be relied upon. It is now well-settled that in cases where eye-witnesses belong to the same family, prosecution evidence to be scrutinised carefully. It should not be accepted without due care and caution. Though the five eye-witnesses belong to the same family, their evidence do inspire confidence and is worthy to be relied upon. It is necessary at this juncture to scrutinise even other evidence to find out some corroboration.
24. The evidence of the complainant Datta (P.W. 7) is fully corroborated by his first Information Report (Exh. 9) regarding various threats given to him and his father deceased Namdeo. In that report, he clearly mentions that while he was taking bullocks through the field of Dharma, Mahadu (the absconding accused) had given threats saying that he would kill him and his father.
25. Namdeorao as (P.W. 3) a Police Constable has produced a report lodged by the deceased Namdeo with the Police Station, Lonar two months prior to the incident. The report narrates the incident of beating Namdeo with a shoe. One more incident is narrated therein and the relevant portion thereof is extracted for proper appreciation :
“……On Friday, I went to Lonar and stayed at Shri Eknath Rapari. My son Datta had also come to the house of Eknath Rapari at 2 O’clock in the noon on day before yesterday. He informed me that 1) Punjaji son of Rama Ingle, 2) Arjun son of Nago Kokate, 3) Kisan son of Hari Ingale and 4) Maroti son of Kisan Kokate, all residents of Titwi, had come to our field. Arjun son of Nago Kokate was carrying a knife in his hand. All those persons had come there to assault Datta. Had Datta not been run away from that place, out of fear, over the Charna (dam), those persons would have assaulted him over the issue of Punjaji’s daughter. They also gave threat to pluck up the standing crops of wheat. They also gave threat that they would see how myself and my son would live in this village…………”
There is no worth of evidence regarding enmity between the two families and that the appellant No. 4 Punjaji and his relations were constantly threatening the complainant Datta and his father deceased Namdeo with dire consequences.
26. So far as the accused No. 4 Punjaji is concerned, the evidence of Rama (P.W. 8) shows that the time of the incident he saw the appellant No. 4 Punjaji and Mahadu (the absconding accused) armed with sticks standing under a Babul tree which is near the house. According to him, he saw them from a distance of about 3 cubits and identified them in the light of the moon. The version is not challenged in the cross-examination. The evidence is further supported by the evidence of the complainant Datta (P.W. 7) and other witness like Parasram (P.W. 6) the Ex-police Patil and Ram (P.W. 6) and the Upsarpanch of the village Titvi.
27. Ashruba (P.W. 11) fully corroborates the complainant Datta (P.W. 7). He narrates that Datta (P.W. 7) visited his field on the day of incident at about 12 midnight or 12.30 A.M. and told him about the assault upon him and other family members. He therefore, accompanied Datta (P.W. 7) to his field. He then disclosed that the appellants Nos. 1, 2, 3, 5 and 6 assaulted them and his father the deceased Namdeo was lying in an injured state in the cattle shed. He sustained injuries on all parts of body. He himself and Datta (P.W. 7) carried the deceased Namdeo to the house. On demand for water, it was served to him. Thereafter, he breathed his last. He also deposed that he went back to his field along with Datta (P.W. 7) and came back in the morning. Nothing substantial is taken out or extracted from this witness in cross-examination. He fully corroborates Datta in all respects. He is an independent witness supporting the prosecution.
28. Next is the medical evidence which has to be considered. Dr. Nasiruddin (P.W. 1) deposed that on 4-4-1985 one Datta son of Namdeo of village Titvi, Taluka Lonar was examined by him and he found the following injuries on his person :
“1. Lacerated wound on the right side of scalp, 3″ above the right ear lobule situated horizontally and downwards admeasuring 1/1/2” x skin deep. The bleeding was present.
2. Lacerated wound on the right side of scalp of 3″ above the right side of scalp situated
horizontally and downwards. 1/2″ away from the injury No. 1, admeasuring 1 1/2″ x 1/
2″ x skin deep. Bleeding present.
3. Swelling on forehead of the size of 1 1/2″ x 1″. Redness seen around the injury.
4. Swelling on left forearm posterior aspect of the size of 1 1/2″ x 1.
5. Abrasion on left forearm posterior aspect of the size of 1/2″ x 1/2″. Superficial in nature with no bleedings.
6. Abrasion on left palmer aspect of the size of 1/6″ x 1/10″. Superficial in nature.
7. Abrasion on right wrist joint, laterally of the size 1/2″ x 1/2′. Circular shape and super ficial in nature with no bleeding.
8. Scratches on right arm situated horizontally of the size of 1″ at scabing stage.
9. Swelling on both knee joint, situated centrally.
10. Abrasion on neck of the size of 1/2″ x 1/8″ and scabin stage, centrally situated.”
According to the doctor, all the injuries were 18 hours old and caused by hard an blunt object except injury No. 8 which according to him, can be caused by hard and conical object. He further deposed that the injury Nos. 1,2 and 3 sustained by Datta (P.W. 7) were not possible by knife. However, he agreed that the injuries were possible by means of sticks (Article Nos. 2 to 7).
29. On the same day, Laxman (P.W. 4) was also examined by the Doctor Nasiruddin and according to his deposition, he noticed the following injuries on his person :
“1. Abrasion on neck, front and lower border. Centrally situated of the size of 1/6” and
was at scabin stage.
2. Abrasion on xipisternum. Semi circular shape of the size of 1/6″ x 1/6″/
Superficial in nature.”
The witness further stated that both the injuries were 18 hours old and caused by hard and blunt object. He admitted that the injuries are possible by sticks (Articles 2 to 7).
30. In further narration, the witness deposed that on the same day, he also examined Rama (P.W. 8) but he found no injury on his body.
31. The Doctor then deposed that he examined Dagdabai (P.W. 9) and he noticed only one injury on her person which is as follows :-
“Lacerated wound on left elbow joint, posterior aspect of the size of 1/2″ x skin deep. It was at scabing stage. There was swelling around it but not bleeding present.”
According to the Doctor, the injury was 18 hours old and was caused by hard and blunt object.
32. Sarubai (P.W. 2) was also examined by the Doctor on the very same day and according to his deposition, he noticed the following injuries on her person:
“1. Swelling on the right elbow joint and forearm upto the right wrist joint. The movements of joint were restricted. Hence, I suspected dislocation of right elbow joint.
2. Swelling on left shoulder joint. Pains on pressure.”
Even these injuries were 18 hours old were caused by hard and blunt object. She was referred to Civil Hospital, Buldana for x-ray photo of her elbow joint to ascertain dislocation but nothing abnormal was found. The doctor, however, agreed the possibility of the injuries being caused by sticks (Articles 2 to 7).
33. From the above evidence, it is clear that the eye-witnesses did receive the thrashing at the hands of the appellants by use of sticks. The versions of the eye-witnesses is fully corroborated by medical evidence. It was, however, submitted on behalf of the appellants that use of knife by the appellant No. 1 Arjun is totally falsified. It is no doubt true that the medical evidence does not disclose the use of knife by Arjun for giving blows to some of them and to that extent, the version of the eye-witnesses is not correct. At the most, it can be said that the beating part is slightly exaggerated by the eye witnesses. Merely because the injuries by knife are not to be found on the person of some of the eye-witnesses, it does not mean that the version of thrashing as disclosed by these very witnesses should be discarded in its entirety. The injuries do disclose the thrashing given by the sticks and to that extent, the version of eye-witnesses will have to be believed. We, therefore, cannot agree with the submissions that all the witnesses should be disbelieved. What is to be remembered is that the incident of the thrashing is not challenged by the appellants and no witness is cross-examined on that point. Their only defence was false implication of the appellants or wrong identification.
34. From the aforesaid discussions, it is evident that the talks regarding marriage of the complainant Datta (P.W. 7) were finalised with Rukhmini the daughter of appellant No. 4 Punjaji. The evidence also shows that the complainant Datta and Rukhmini, therefore, used to meet each other often and they were in love. The appellant No. 4 Punjaji did not like this and, therefore, he refused to give his daughter in marriage to the complainant Datta (P.W. 7) Instead, he showed his daughter Rukhmini to the persons who had come from Naygaon but they did not approve her and left. The appellant No. 4 Punjaji hence suspected that the complainant Datta and his father Namdeo might have played some mischief and therefore, he wanted to have a revenge for the same. From the evidence, it is further clear that appellant No. 4 Punjaji and Mahadu gave threats to Datta himself and his father deceased Namdeo on various occasions. No doubt, if para 4 of the evidence of Datta (P.W. 7) is carefully perused alongwith Exhibit: 40, the first information Report, one would feel that the intention was to kill both the complainant and his father the deceased Namdeo but such a position is belied if the earlier report (Exhibit : 36) is carefully scrutinised. The relevant portion of that report is already extracted above. According to that report, the threat was to see how the deceased Namdeo and his son Datta (P.W. 7) continued to live in that village, thereby intending that they would be severely thrashed so that they should abandon the village never to return back. In furtherance of this threat and the vindictive attitude of the appellant No. 4 Punjaji towards Datta and his deceased father Namdeo, constituted an unlawful assembly with the aid of appellants Nos. 1,2,3,5 and 6 and Mahadu (the absconding accused) with the common object to cause such bodily injury as is likely to cause death by giving good and severe threashing and with that object in view, entered the field of deceased Namdeo armed with sticks and used force or violence in the manner deposed to by all the eye-witnesses. The assembly of appellants Nos. 1, 2, 3, 5 and 6 is deposed to by all the witnesses and the present appellant No. 4 Punjaji armed with stick was standing nearby under a Babul tree at the time of the incident alongwith Mahadu (the absconding accused) and which fact is deposed to by Rama (P.W. 8) duly corroborated by others.
35. Thus, each and every member of the unlawful assembly took part in prosecuting the common object and, therefore, the prosecution has established beyond doubt that on 3-4-1985, the appellants formed an unlawful assembly and all of them were its members. It is also proved beyond doubt that the common object of the said assembly was to cause such bodily injury on the complainant Datta and his deceased father Namdeo as is likely to cause death and for that purpose, they armed with deadly weapons like sticks used force and indulged in violence. We, however, do not agree with the finding of the trial Court that the common object of unlawful assembly was to commit murder of deceased Namdeo and inflict injuries on Datta and other family members.
36. The next question that falls for determination is whether the accused Namdeo died a homicidal death. This issue is not disputed by the Counsel for the appellant Shri M.R. Daga, Advocate. Even then, we prefer to answer this issue based on evidence on record.
37. The evidence of eye witnesses clearly established the assault on deceased Namdeo. The complainant Datta (P.W. 7) Sarubai (P.W. 2) Laxman (P.W. 4) Rama (P.W. 8) and Dagadabai (P.W. 9) has stated that they had seen the assault on various parts of the body of Namdeo by means of sticks and knife. They have also narrated that after the assault they saw the deceased Namdeo lying in the cattleshed profusely bleeding from injuries sustained by him. Ashruba (P.W. 11) who arrived on the scene immediately after incident also testified to the above facts. All the witnesses have also stated that Namdeo died of injuries sustained soon thereafter.
38. The Investigation Officer P.S.I. Shri Nainade examined as P.W. 13 stated that he visited the spot on the next day and sent the dead body of Namdeo for post mortem examination. The report of post mortem is produced by the prosecution at Exhibit 18. The report was admitted by the appellants on notice being served under section 294 of the Criminal Procedure Code. As held in 1983 Criminal Law Journal 487, Sheikh Farid Hussinsab v State of Maharashtra, raising no dispute as to genuineess of the document implies their considered decision of further details being irrelevant. So even without formal proof of the post mortem report a document whose genuineness is not disputed, can be read in evidence. The report shows that Dr. Katariya conducted the post mortem examination of the dead body of Namdeo and found that he had sustained the following external injuries :-
“1. Lacerated injury 11/2″ x 1/2″ in No. 2 on frontal zone, obligatory cloted blood over the injury 6” above from bridge nose.
2. Lacerated injury 1″ x 1/2″ on left back hand posteriorly in No. 2.
3. Contusion of the size 1 1/2″ x 1/2″ on frontal bone 1″ from injury No. 1.
4. Lacerated injury 1 1/2″ x 1″ on lip of the left nostrial vertically clotted, blood over the injury.
5. Contusion of the size of 3″ x 1/2″ on right arm on a lateral aspect.
6. Contusion of the size of 1″ x 1/2″ on left lower arm on a lateral aspect.
7. Contusion of the size of 2 1/2″ x 1″ on left elbow joint posterior.
8. Abrasion of the size of 1″ x 1/2″ on both leg below the knee joint anteriorly.
9. Abrasion of the size of 1 1/2″ x 1/2″ on left eye-brow lateral aspect curved in shape.”
The said report further shows the following internal injuries :
1) Fracture of right numars mid in two places.
2) Fracture of right ribs in No. 4, i.e. 4,5,6, and 7.
3) Fracture of left ribs in No. 6,7,3,4,5,9,10 and 11.
4) Fracture of left radius ulna in two pieces.
It is also mentioned in that report that the cause of death was due to shock of haemorrhage on account of multiple injuries. Obviously, the death of Namdeo was neither an accidental death or a suicidal death but was caused by a human agency. We hence agree with the finding of the trial Court that the prosecution has proved that the deceased Namdeo died in homicidal death.
39. It was contended on behalf of the appellants that no offence under section 302 read with section 149 of the Indian Penal Code was made out and conviction of the appellant under these sections is unwarranted. According to the appellants ‘ Counsel, the thrashing given to Namdeo was because of his intervention and the appellants never intended or had knowledge that they would kill him. At the most, the offence, it any, for which the appellants could be held guilty would be section 302 read with section 149 of the Indian Penal Code. On careful consideration we do accept that the appellants could not have been held guilty under section 302 read with section 149 of the Indian Penal Code but not for the reason canvassed before us. He, however, rejected the contention made on behalf of the appellant that they could be held guilty only under section 236 read with section 149 of the Indian Penal Code.
40. We have already discussed the evidence of the each of the eye witnesses as above and are fully convinced that Namdeo was assaulted by the appellants. As discussed above, the cause of death of Namdeo was shock and haemorrhange on account of multiple injuries. There are numerous fractures in the body. The injuries caused are cumulatively sufficient to cause death but before each accused could be held guilty under section 302 read with section 149 of Indian Penal Code, it is necessary to determine that common object of the unlawful assembly was to cause death or that members of the assembly knew it to be likely than an offence under section 302 Indian Penal Code would be committed is prosecution of the common object. Upon analysis of the evidence, we have already held that the common object of the unlawful assembly was to cause bodily injury in both Datta (P.W. 7) and deceased Namdeo as is likely to cause death. The appellants can, therefore, be held guilty only under section 304 Part I read with section 149 of the Indian Penal Code. Reliance in this respect can well be placed on a decision of the Supreme Court in Sarwan Singh and others v. The State of Punjab. The relevant portions from the judgement are extracted below :-
“If the injuries that are sufficient in the ordinary course of nature to cause death are traced to a particular accused, he will be guilty of an offence under section 302 without the aid of section 149. When the injuries caused are cumulatively sufficient to cause death, it is necessary before holding each of the accused guilty under section 302 read with section 149 to find that the common object of the unlawful assembly was to cause death or that the members of the unlawful assembly knew it to be likely that an offence under section 302 Indian Penal Code would be committed in prosecution of the common object.
On an analysis of the injuries, in the instant case, it could not be said that any of the persons that inflicted injuries intended to cause death or such injury as is sufficient in the ordinary course of nature to cause death. If the common object of the unlawful assembly was to commit murder and in prosecution of the common object of the unlawful assembly any member caused an injury which is sufficient, in the ordinary course of nature to cause death, the members of the assembly would be liable for an offence under section 302 read with section 149 but on a consideration of the injuries it could not be held that the common object of the unlawful assembly was to cause death …. …. ….It can be said that the common object of the assembly was to cause bodily injury as is likely to cause death. The accused was, therefore, held guilty under section 304(1) read with section 149.”
41. We hence do not agree with the learned Sessions Judge, Buldana that the appellants are guilty of offence punishable under section 302 read with section 149 of the Indian Penal Code nor with the contention of the appellants that it will be an offence only under section 325 read with section 149 of the Indian Penal Code. Instead, we hold the appellants guilty of offence punishable under section 304 part I read with section 149 of the Indian Penal Code.
42. The trial Court also held the appellants guilty of an offence under section 307 read with section 149 of the Indian Penal Code with reference to injuries inflicted on the complainant Datta (P.W. 7). In order to prove the offence under section 307 of the Indian Penal Code, the essential ingredient which the prosecution has to establish is the attempt to do certain act with the intention or knowledge to cause death as contemplated under section 300 of the Indian Penal Code which if he had succeeded in causing death would have amounted to the offence of murders. We have already held that the common object of the unlawful assembly was to cause bodily injury on Datta (P.W. 7) as is likely to cause death but even before such injuries could be inflicted Datta (P.W. 7) managed to escape and save himself. As deposed to by Dr. Nasiruddin (P.W. 1) he found as many as 9 injuries like lacerated wounds, abrasion, swellings and scratches and according to his opinion, the injuries were possible by blows given by means of sticks. All the injuries are superficial in nature. In these circumstances, it is difficult to hold that the appellants are guilty of the attempt to murder Datta (P.W.7). Nevertheless, the acts of the appellants certainly fall in the category of an attempt to cause homicid falling in the category of culpable homicide and not in the category of culpable homicide amounting to murder. Hence, the offence committed by the appellant with above mentioned common object will not be punishable under section 307 Indian Penal Code but the offence will be punishable under section 302 Indian Penal Code which prescribes punishment for attempt to commit culpable homicide. We, therefore, set aside that conviction of the appellants for offence under section 307 read with section 140 of the Indian Penal Code and instead, convict them for offence punishable under section 302 read with section 149 of the Indian Penal Code.
43. It now remains to be seen whether the prosecution has established the fact that the appellants in furtherance of common object of the unlawful assembly, voluntarily caused hurt to Sarubai (P.W. 6) Laxman (P.W. 4), Rama (P.W. 8) and Dagdabai (P.W. 9) by means of sticks. All this context, the evidence of Dr. Nasiruddin (P.W. 1) and that of injured persons would only be relevant.
44. Dr. Nasiruddin (P.W. 1) in his evidence discussed before noticed injuries on the person of Sarubai (P.W. 2) Laxman (P.W. 4) and Dagdabai (P.W. 9). In this opinion of the Doctor, infliction of all the injuries by him on these persons are possible by sticks (Articles 2 to 7). The evidence of the Doctor also shows that he did not notice any injury on Rama (P.W. 8). The evidence is not shaken is the cross-examination. Only one conclusion is possible that on 4-4-1985 the Doctor examined the eye-witnesses i.e. on, the next day of the incident, all of them except Rama (P.W. 8) were found injured.
45. There is no manner of doubt that the appellants alone are responsible for the injuries. This is clear from the evidence of Datta (P.W. 7) and other eye-witnesses who were injured who were injured and also that of Rama (P.W. 8) on whom no injury was noticed by Dr. Nasiruddin (P.W. 1). All of them were unanimous in deposing that the appellants alone had assaulted them with sticks while they were rescuing Datta (P.W. 7), Rama (P.W. 8) from their hands. They also deposed that they indentified the appellants in the light of the moon. No acceptable reason is disclosed for discarding this evidence.
46. The evidence of the panch witness Sayyed Sattar clearly goes to show that the sticks (Articles 2 to 7) came to be seized at the instance of the appellants. The evidence relating to discovery of sticks and its seizure has been rightly accepted by the learned trial Court. In these circumstances, there can be no hesitation to hold that the prosecution has established the fact beyond reasonable doubt that the appellants in furtherance of their common object, voluntarily caused hurt to the abovesaid witnesses by means of sticks and hence, they are also guilty of offence punishable under section 323 read with section 149 of the Indian Penal Code.
47. From what has been discussed above, we are of the opinion that the appellants Nos. 1 to 6 are guilty of offences punishable under section 147, 149 and section 304 Part I read with section 149, section 302 read with section 149 and section 323 read with section 149 of the Indian Penal Code.
48. We also heard the Counsel on both sides on the point of sentence in so far as conviction under section 304 Part I read with section 149 of the Indian Penal Code and section 302 read with section 149 of the Indian Penal Code, is concerned. We do not think that lenient punishment would serve the ends of justice.
49. The appeal is partly allowed. The conviction and sentence of the appellants under section 302 read with section 149 of the Indian Penal Code and also conviction and sentence of the appellants under section 307 read with section 149 of the Indian Penal Code are set aside.
The appellants are hereby convicted for the offences punishable under section 147,148 and section 304(1) read with section 149, section 306 read with section 149 and section 323 read with section 149 of the Indian Penal Code.
For offence punishable under section 147 of the I.P. Code, each of the appellants is sentenced to suffer rigorous imprisonment for one year.
For offence punishable under section 149 of the I.P. Code, each of the appellants is sentenced to suffer rigorous imprisonment for two years.
For offence punishable under section 304(I) read with section 149 of the Indian Penal Code, each of the appellants is sentenced to under go rigorous imprisonment for seven years and also pay a fine of Rs. 200/- each and in default, to suffer rigorous imprisonment for two months more.
For offence punishable under section 308 read with section 149 of the Indian Penal Code, each of the appellants is sentenced to suffer rigorous imprisonment for four years.
For offence punishable under section 303 read with section 149 of the Indian Penal Code, each of the appellants is sentenced to suffer rigorous imprisonment for six months.
All the substantive sentence shall run concurrently.