1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
CRIMINAL APPEAL NO. 3 /2006
&
CRIMINAL APPEAL NO. 120/2006
Criminal Appeal No. 3/2006:
1) Sachin s/o Keshao Chate
Aged 26 years
2)
Sandip Kishor Waghmare
Aged 24 years
Both are R/o Adarsha Nagar
Sewagram, Dist.Wardha ( M.S.).. ...APPELLANTS
v e r s u s
The State of Maharashtra
Through Police Station Officer
Sewagram Dist. Wardha (MS) ...RESPONDENT
............................................................................................................................
Mr. R.M.Daga, Advocate for appellants
Mr. D.B.Patel, Addl. Public Prosecutor for Respondents
Criminal Appeal No. 120/2006:
The State of Maharashtra
Through Police Station Officer
Sewagram Dist. Wardha ...APPELLANT
v e r s u s
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1) Lalji alias Rajkumar Ramavatar Yadav
Aged 22 years
2) Suraj Bhimrao Vaidya
Aged 19 years
3) Dhiraj Suraj Wankhede
Aged about 19 years
4) Ankush Bhaurao Masram
Aged 35 years
5) Prakash Jyotiram Ingale
Aged 23 years
6) Kailas Jyotiram Ingale
Aged 21 years
7) Dinesh alias Munna Ramavatar Yadav
Aged 20 years
8) Narendra alias Guddu Hariprasad Dubey
Aged 20 years
All R/o Adarsha Nagar
Sewagram Dist. Wardha. ...RESPONDENTS
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Mr. D.B. Patel, Addl. Public Prosecutor for appellant
Mr S.A.Sainis Adv.h/for Shri A.S.Manohar, Adv.for Res.No.1, 5,
6 & 8,
Smt. A.A.Joshi, Advocate for Respondent no.4
Respondents 2,3 and 7 are served.
CORAM: A.H. JOSHI &
A.P. BHANGALE, JJ.
DATED: 24th September,2010 ::: Downloaded on - 09/06/2013 16:29:01 ::: 3 JUDGMENT : (Per A.P. BHANGALE, J.) : 1. Criminal Appeal No. 3/2006 is preferred by the appellants/convicts challenging the impugned judgment and order dated
20th October, 2005 passed by learned 1st Ad-hoc Additional Sessions Judge,
Wardha in Sessions Trial No. 117/2003 whereby the learned trial Judge
found the appellants guilty of offence punishable under section 302 read
with section 34 of the Indian Penal Code ( in short “IPC” ) and sentenced
them to suffer imprisonment for life; while the other accused Lalaji Yadav,
Suraj Vaidya, Dheeraj Wankhede, Prakash Ingle, Kailash Ingle, Dinesh
Yadav, Narendra Dubey were found guilty of offence punishable under
section 326 read with Section 149 of the IPC; and were sentenced to suffer
RI for four years and fine in the sum of Rs.1,000/- payable by each of
them, in default, each of them were directed to suffer RI for one month.
Thus, the accused who were found guilty of offence punishable under
section 326 read with section 149 of IPC and were acquitted of the
offence punishable under section 302 read with section 149 IPC.
2. The State of Maharashtra too challenged the impugned
judgment and order by way of Criminal Appeal No.120/2006 questioning
the legality thereof, with prayer to convict and sentence the accused
according to law.
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3. Briefly stated the prosecution case is that: one Aziz Bapu
Miyan Sheikh was running a STD booth at Sevagram Chowk,
Wardha; while is elder brother Suleiman is running a shop of Pan material
by the side of STD booth. There is one hotel and tea canteen of Johnny
@ Jan Mohammed since last eight years prior to the incident. The deceased
Salim @ Mahesh Barayya was living along with said Johnny and was
running another tea canteen, adjacent to the tea canteen of Johny. Salim
@ Mahesh married with a Muslim girl. Dilip Barayya, brother of said
Salim was working as servant in the hotel of Johnnybhai. The accused
were resident of Adarsha Nagar, Sevagram, on the date of incident. On 1st
1st July 2003 between 9.10 p.m. and 9.30 p.m., Aziz Bapu Miyan Sheikh
was present at his STD booth. He had heard shouts coming from the side
of Sevagram square. When he went there he saw that accused Lalji Yadav,
Munna Sandip Waghmare, Sachin Chate and others had entered into the
Hotel of Johnny bhai. The accused No.1 Lalji Yadav was having sword in
his hands, accused Sandip Waghmare was having a trident (trishul );
whereas other accused were armed with iron rods as well as wooden
sticks. They had started damaging the tables and chairs of the tea
canteen of Johnnybhai and accused Lalji had assaulted Suleiman on the
head by means of sword. Suleiman fell down on the ground; while
accused Sachin Chate assaulted Salim Barayya with a spear. Sandip
Waghmare hit Salim on his head by means of trident. Accused Dhiraj
assaulted Suleiman on his head. Accused Prakash had assaulted Tahir son of
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Suleiman by means of wooden stick; Kailash was also armed with
sword and he had assaulted Tahir by means of sword. The accused Guddu
Dubey was assaulting Suleiman on his head, when Tahir tried to intervene
to save his father Suleiman. Thus, according to prosecution Aziz Bapu Miyan
Sheikh saw the entire incident in which his elder brother Suleiman
Johnnybhai Mahesh @ Dilip were injured. The accused persons had also
damaged the articles in the Hospital and thereafter they ran away from the
spot. Aziz Sheikh informed the Sevagram Police Station by telephone
about the incident. All the injured persons were then taken to Sevagram
Hospital while Aziz Sheikh lodged first information report which gave rise
to Crime No.102/2003 against the accused. The investigation followed
thereafter. The Police visited the spot, drew the spot panchnama. Injured
persons were taken to Sevagram Hospital where they were medically
examined namely, Suleiman Sheikh, Tahir Sulkeiman, Johnnybhai as well
as Dilip Barayya. Salim @ Mahesh Barayya unfortunately succumbed to
the injuries which he had received. The Inquest Panchanama was drawn on
the dead body in presence of Panchas and dead body of Salim was
referred for post-mortem examination. According to Doctor who performed
the autopsy he died as a result of haemorrhagic shock due to injury on
vital organ i.e. lung. During the course of investigation articles namely,
pair of slippers, sample of blood, blood smeared with earth, were
seized from the spot.
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4. The accused were arrested. It is the case of the prosecution that
in the course of investigation the accused Lalji Yadav had led police and
Panchas to discovery of sword which he had concealed while accused
Sachin Chate led police and Panchas and Bhala (spear) was discovered
from under the cot from his house; while at the instance of Narendra @
Guddu Dube one iron road was recovered and auto rickshaw in which the
accused allegedly travelled to the hotel of Johnnybhai was also seized; while
at the instance of accused Suraj Vaidya, iron rod was seized; weapons
were also allegedly recovered from other accused Manoj Kolte, Dhiraj
Wankhede. The police had also seized blood stained clothes from the dead
body of Salim Barayya; blood stained clothes injured persons were also
seized and stick was seized at the instance of Prakash Ingle while at the
instance of Kailash Ingle sword was seized. Trident was seized at the
instance of accused Sandip Waghmare; sticks were seized at the instance of
Ankush Meshram and Dinesh Yadav. The police had also collected samples of
blood from the arrested accused which were referred to Chemical analysis
in a sealed condition. Thus upon completion of evidence charge-sheet was
laid before the Court of first J.M.F.C. Wardha on 29.9.2003. The case was
committed to the Court of Sessions at Wardha being Sessions trial
No.117/2003.
5. Learned APP in support of the Appeal filed by the State, submitted
that those who formed the unlawful assembly in prosecution of common
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object to commit murder of unfortunate Salim @ Mahesh Barayya were
wrongly acquitted of offence of murder and were convicted under section
326 read with section 149 IPC, instead of section section 307 read with
section 149 IPC. He submitted that trial Court had convicted the accused
with the aid of Section 149 of the IPC which indicate that existence of
unlawful assembly was proved within the meaning of Section 141 of IPC.
Hence, reasonable inference ought to have been drawn while answering the
points framed for determination to hold as to whether the accused were
members of unlawful assembly liable for actual offence committed for the
death of Salim Barayya and for causing injury to others. According to
learned APP the learned trial Judge lost sight of crucial aspect of the
evidence led regarding vicarious penal liability in respect of armed assault
upon Salim Barayya and others by the unlawful assembly. Learned
Advocate Mr.R.M. Daga submitted that the weapons articles 45 to 55 were
not found stained with blood by the Chemical Analyser. The submission
would not carry much importance in a case where offence is committed by
an unlawful assembly while slow rains were in progress. In such case, it is
not sine-qua-non for to establish guilt of members thereof to trace and
identify weapons if oral evidence of injured has received corroboration from
the medical evidence. Non-identification or improper identification of
weapons would not affect veracity of oral evidence of an eye witness
particularly when incident is otherwise corroborated i.e. by medical
evidence and other circumstantial evidence on record, i.e. spot Panchnama,
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inquest Panchnama, recovery of weapons at the instance of accused.
6. The evidence is criticized by learned defense Advocates on the
ground that there are certain omissions in the evidence of eye witnesses
which they admitted with regard to their statement made to Police. In our
opinion, those omissions were such which do occur in the evidence of
truthful witnesses. No criminal case is free from shortcomings as pointed out
to us from the evidence on record. The omissions by themselves unless
material, cannot uproot the case of the prosecution.
7. Learned Advocate Shri R M Daga submitted that there was no
evidence beyond reasonable doubt to show that the appellants-convicts had
acted in furtherance of their common intention to murder the deceased. It is
argued that the appellants-convicts could not have been held liable for
committing offence punishable under section 302 read with section 34
IPC.. It is also submitted that the conviction was based upon evidence of
interested witnesses who claimed that they had seen incident which occurred
at night time. Learned Advocate for the appellants submits further that
injury to accused no.2 received on left occipital region, was suppressed by
the prosecution. The failure or omission on the part of the prosecution to
explain injury on the person of accused no.2 is very important circumstance
on the basis of which the court can draw adverse inference against the
prosecution on account of suppression of relevant fact regarding the incident.
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8. As against this, learned APP who supported the impugned
judgment and order of conviction of the accused for offence of murder
submitted that the accused were armed with deadly weapons like sword and
spear etc. and came with common object to commit murder of Salim @
Mahesh Barayya and, therefore, the trial Court ought to have convicted all
the accused under section 302 with the aid of Section 149 IPC. Learned
APP submitted with reference to plethora of rulings on the subject that the
penal liability under section 149 IPC is essentially a group liability when
offence is committed by five or more offenders in prosecution of common
object or such offence is committed under such circumstances when all the
members of that assembly knew it to be likely to be committed in
prosecution of common object, then every person who at the time of
commission of offence is member of the same assembly is guilty of that
offence. The essential ingredients are :
(i) commission of offence by any member of an
unlawful assembly, and;
(ii) such offence must be committed in
prosecution of the common object of the assembly or must
be such as the members of that assembly knew it to be
likely to be committed in prosecution of the common
object.
Once it is proved or established that the unlawful assembly had
common object to commit offence, it is not necessary to establish that all
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the offenders /members of that assembly committed some specific overt
act. The vicarious penal liability is incurred by all members of the unlawful
assembly for the offence committed by it during the continuance of the
occurrence or incident, based upon knowledge before-hand that the offence
actually committed was likely to be committed in prosecution of the common
object. Every case has to be judged on its own facts to reach a conclusion
as to whether the offence was committed to accomplish a common object.
Such common object need not be proved by evidence of prior meeting or
pre-concert. Offence committed is such which members knew was likely to
be committed. It is matter of common knowledge that when group of
heavily armed men set out to use force, they would know that someone is
likely to be killed or injured. The death may or may not happen but each of
them are aware of that likelihood and therefore would be guilty under
second part of Section 149 IPC, as indicated above. When group or body of
persons ( five or more ) go armed with weapons like sword, spear,
trident, iron rod, stick, it has to be said that each member of that group
has knowledge that murder or culpable homicide or such other serious
offence is likely to be committed if the circumstances as to the weapons
carried and other conduct of the members of that unlawful assembly clearly
points out to such attributable motive and knowledge on the part of all
of them. Knowledge as to likelihood of the death by murder or culpable
homicide not amounting to murder, can be imputed to them dependent
upon conduct, behaviour of each of the members of the unlawful assembly
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before, at the time of incident and thereafter. Motive for the crime may be
relevant to determine question of fact keeping in view the nature of the
assembly and the arms carried by the members and the behaviour of
members at or near scene of the incident while criminal act is committed
and soon thereafter. Every member of the unlawful assembly with unlawful
common object is vicariously punishable as member thereof on account of
his knowledge as to likelihood of the offence which is actually committed.
Therefore, each member of the unlawful assembly may not have committed
the overt act which actually caused death by offence of murder or
culpable homicide not amounting to murder.
9. In the present case, learned trial Judge appears to have
overlooked that it has come in evidence that the accused who were more
than five in number were seen armed with lethal weapons, like sword, spear,
iron rod, trident etc. when five or more persons set out armed with lethal
weapons and commit offence by inflicting injuries upon victim or victims, it
is not necessary to attribute overt act to each of them when they were
sharing and pursuing common object to assault. Presence in the unlawful
assembly carrying an arm or weapon coupled with conduct may be enough
to fasten criminal liability upon assailants.
10. Learned Advocate Mr Saini argued that there would be no
vicarious liability if incident arose due to free fight and then section 149
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IPC would not be attracted. He relied upon the following rulings :
(1) 1979 Cri.L.J. 7 : (Bhajan singh and others vs. State of Punjab)
(2) AIR 1973 SC 2505 (Lalji and others vs. State of U.P.)
(3) AIR 1996 SC 3344 :(State of Haryana vs. Chandvir & others)
(4) AIR 1976 SC 2263: (Lakshmi Singh and others vs. State of
Bihar)
It must be observed upon perusal of the rulings that each case has to turn on
its own facts.
11. The evidence led in this case consists of PW 1 Suleiman Bapu
Miyan who is an eye witness and knew all the accused. He had seen the
accused while they were assaulting by means of rods and pipes. He had seen
weapons in the hands of accused as he described that the accused Lalji (A-1)
had sword; Sachin ( A-2) had spear; Sandeep (A-3) had trident and others
were armed with rods and some had stones. He was also assaulted when he
tried to intervene. Salim Chate and Sandeep were beating Salim by means
of Trishul (trident) and Bhala. Salim had fallen on the ground while other
accused were also seen beating Dilip Barayya by means of trishul, rods,
stones; Accused Prakash had assaulted by means of stick and Kailash
assaulted by sword. He had also identified weapons in Court. During the
course of cross-examination, the eye witness was questioned regarding few
omissions in the statement made to police but in the admissions sought or
elicited in the course of cross-examination, the witness is firm to say that
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when he tried to intervene, the accused Lalji had assaulted by sword. The
witness had denied the suggestion that accused Sachin and Sandeep were
proceeding from Kharangana to Sevagram old village. PW 1 also denied
suggestion that he (PW 1) along with Johnnybhai, Tahir, Mahesh Barayya ,
Dilip Barayya, Ajiz and Roshankhan assaulted by means of rods, swords and
bhala. It also appears from admission that slow rains was going on at the
time of incident. PW 2 Tahir also knew accused and had seen the incident.
He saw accused assaulting Johnnybhai and Salim ( deceased ) and Dilip
Barayya by means of sword rods, trishul and sticks. Accused Lalji had
assaulted his father (PW 1) while he had also seen the accused Kailash and
Prakash assaulting by stick and sword respectively. While trying to save
himself he was hit by sword. Thus, accused were seen assaulting his
father, Johnnybhai, Salim and Dilip Barayya and after 2/3 minutes the
accused ran away towards Adarsha Nagar. In the course of cross-examination
he was questioned about omissions in his statement made to police but much
importance cannot be given to them particularly when the present case has
multiple number of eye witnesses whose evidence has been corroborated by
medical evidence. PW 4 Jan Mohammed and PW 7 Ajij Bapu Miyan are
the other eye witnesses examined who saw about 12 persons including the
accused who came to his hotel. He identified the accused in the court as the
same persons who had damaged the property and articles in the hotel and
when questioned, accused Guddu had assaulted him on his head by rod Lalji
had assaulted Suleiman. Salim and Dilip had tried to intervene. Accused
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Sachin had assaulted by means of spear while accused Suraj assualted Dilip
by means of rod. Salim had died on spot. Although the incident occurred at
night time, the evidence indicated that there was gas light as well as
tubelight. PW 4 denied that there was commotion and Mahesh (Salim) fell
down on sharp edge of tin embedded on earth and received injuries. Such
suggestion in the course of cross-examination by the defence proceeds on the
basis of admitted presence of the accused at the spot and becomes risky
when denied because ocular version received corroboration from rest of
the evidence led, the prosecution can establish the incident beyond
reasonable doubts. PW 5 Shaikh Babu deposed about happening prior to
the incident. He had seen Lalji; Sachin Chute, Sandip Waghmare, Pramod
Goyal going with weapons after he heard voice “Chalo Awjar Lo” (Take
weapons and leave). Dr.Seema Sute (PW 3) performed autopsy over dead
body of Mahesh @ Salim Chotelal Barayya, on whose body following injuries
were observed:-
1) Incised lacerated wound measuring 5 cm x 2
cm and 3.5 cm in depth, present on anterior side of fold
right axilla oblique in direction.
2) Contused lacerated wound measuring 2 cm x 1
cm in size present on right cheek, zygomatic arch 1 cm
below angle of right eye.
3) Contused lacerated wound measuring 1.5 cm x
2 cm in size tringularly shape, present just above right
mustache, It was 1 cm away from ala of nose.
4) Linear abrasion 3 cm in length present v.o.
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Right cheek, verticle in direction 3 cm away from right
angle of mouth.
5) Penetrating wound measuring 4 cm x 1.5 cm
cavity deep, situated at posterior fold of left axilla Verticle
in direction clean cut margin acute angle.
6) Split laceration 7 cm x 1 cm bone deep
obliquely verticle in direction present over vertex.
7) Superficial incised wound tringular in shape 3
cm x 2 cm in size, present on posterior aspect of left thigh
16 cm above left knee..
She opined that deceased died as a result of haemorrhage and shock as a
result of injury to vital organ -lungs and that injuries observed by her in PM
notes (Exh.33) were sufficient in the ordinary course of nature to cause
death. She had also examined weapons produced before the Court and
opined that injuries she observed (as above ) were possible by those
weapons.
12. Dr.Rajmohan (PW 14) had examined injured Suleiman Sheikh
(PW 1) with following injuries :
1) Penetrating wound over the face lateral to the
left nose, bleeding present.
2) Avulation of the nostril with bleeding.
3) Clean out lacerated wound present in the right
cheek.
4) Laceration of the lower eye lip extending up
to the nasal breathe.
5) Abrasions present in the left ear with
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bleeding, from the left ear.
6) Bleeding present in the first finger tip on the
left side.
7) Contusions present over the abdomen.
8) Lacerated wound present in the left parietal
region having size 3 x 1 x 2 cm.
. He opined that the injuries were grievous in nature.
He had also examined injured Dilip with following injuries :
1) Multiple contused lacerated wound present over the
face of varying sizes.
2) Contused lacerated wound present over the root
of nose, swelling present, bleeding present, tenderness
present, crepitus present.
3) Contused lacerated wound present left side
occipital region of size 7 x 1 x 2 cms. Active bleeding
present.
4) Contused lacerated wound present over inner
side of the lower lip.
The above injuries in the opinion of the Doctor were grievous in nature.
13. The learned trial Judge therefore could not have ignored the
evidence referred above, which implicated all the accused before the Court..
14. The prosecution had thus led sufficient and reliable evidence
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beyond reasonable doubt that five or more persons were involved in armed
assault including the accused. They had formed unlawful assembly which
was armed with lethal weapons, like sword, spear, trident, iron rods etc and
caused death of Salim and injuries as above. Non-explanation of injury
suffered by one of the accused in such incident of armed assault is not
material and prosecution case cannot be thrown out on the teneous ground
that prosecution did not explain injury to such accused in view of the ruling
in Suresh Sitaram Surve v. State of Maharashtra : 2003 All M R (Cri) 394
(SC): {Three Judges Bench (Para 6)}. The argument that the injuries on the
person of accused were not explained by the prosecution was rejected as
without substance. In the present case also, the ratio is attracted in the facts
and circumstances, the accused were identified as members of unlawful
assembly and each of them were attributable with knowledge in the facts
and circumstances brought on record about likelihood of consequences of
their armed assault as none of them could have feigned ignorance of likely
consequences of death of Salim @ Mahesh as a result of collective assault
by them. As regards the arguments advanced about the injury on the person
of one of the accused Sandip, the Investigating Officer (PW 13) PSI Vijay
Kuhikar in Paragrpah 26 of his evidence stated in the cross of cross-
examination as follows:
“Sandip Waghmare was arrested on 3.7.2003. It had
come to my notice that Sandip Waghmare was injured.
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18had not taken it. I had conducted investigation regarding
injuries to Sandip Waghmare separately. Those papers
are not on record.”
These admissions by the Investigating Officer probabilise the theory that the
unlawful assembly may have caused death of Salim @ Mahesh Barayya in a
sudden fight, in the hit of passion, upon sudden quarrel and, therefore,
each member of the unlawful assembly in the facts and circumstances revealed
from the record would get benefit of exception (4) to Section 300 IPC.
regarding culpable homicide of Salim @ Mahesh which occurred as a result
of collective assault by them. Hence, each of them can safely be held
guilty under part one of Section 304 of IPC with the aid of Section 149 IPC,
in addition to offence proved under section 326 read with section 149 IPC.
15. We have heard learned Advocates for the appellants in both the
Appeals as also learned Additional Public Prosecutor for the State on the
point of sentence. After hearing them, we are satisfied that the following
order would meet the ends of justice:-
In the result, Criminal Appeal No.3/2006 is partly allowed.
Conviction and sentence of the appellants therein for the offence punishable
under section 302 read with section 34 of the Indian Penal Code is set aside.
Instead, appellants stand convicted for the offence punishable under section
304 Part-I of the Indian Penal Code and are sentenced to suffer RI for seven
years. Sentence as regards fine is maintained. Appellants are said to be in
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custody/jail since the date of their arrest and if they have already undergone
the substantive sentence of imprisonment, they be released forthwith, if not
required in any other pending criminal case.
As regards Criminal Appeal No.120 of 2006 preferred by the State
of Maharashtra, the same is also partly allowed. Acquittal of original accused
No. 6 ( respondent no.4 herein)- Ankush Bhaurao Masram is set aside.
Respondents Nos. 1 to 8 are held guilty for the offence punishable under
section 304 Part-I read with Section 149 of the Indian Penal Code and upon
conviction, each of them is sentenced to suffer rigorous imprisonment for
seven years and to pay a fine of Rs. 1000/- each, in default, to suffer further
RI for three months. Accused-Respondents 1 to 8 herein are directed to
surrender to their bail bonds to serve out the sentence. Conviction and
sentence of respondents 1 to 3 and 5 to 8 under section 326 read with
section 149 of the Indian Penal Code is maintained. Respondent No.4-Ankush
Masram shall also undergo sentence under section 326 read with section
149 IPC same as respondent nos.1 to 3 and 5 to 8 were sentenced in the
trial Court.
Accused would be entitled to set off under section 428 Cr.P.C. in
both the Appeals. Appeals stand disposed of accordingly.
JUDGE JUDGE
sahare
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