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CASE NO.: Appeal (crl.)  85-87 of 2000

PETITIONER: State of Maharashtra

RESPONDENT: Tulshiram Bhanudas Kamble & Ors

DATE OF JUDGMENT: 21/08/2007

BENCH: S. B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NOS.85-87 OF 2000

MARKANDEY KATJU, J.

1.      These appeals have been filed against the impugned judgment dated  5.4.1999 of the Bombay High Court in Criminal Appeal Nos. 32, 71 and 83  of 1996.

2.      Heard learned counsel for the parties and perused the record.

3.      There were initially fifteen accused in the case which was tried by the  Additional Sessions Judge, Pandharpur, District Sholapur, who were charge- sheeted under Sections 147, 148, 149, 302, 307, 323, 324, 188 and 452 of  the Indian Penal Code.  The trial court convicted accused no.1 Tulshiram  Bhanudas Kambale, accused no.2 Ramchandra Bhanudas Kambale, accused  no.5 Ganesh Kisan Shirsat @ Paparkar, accused no.6 Ashok Sahebrao  Waghmare, accused no.8 Dnyaneshwar Shankar Naikwadi, accused no.10  Anil Dhondiram Mane and accused no.11 Sunil Dhondiram Mane under  Section 302 read with Section 149 of the Indian Penal Code and sentenced  them to life imprisonment.  He also convicted accused no.1, accused no.10  and accused no.14 under Section 324 read with Section 149 of the Indian  Penal Code and sentenced them to two years rigorous imprisonment.  He  further sentenced accused no.1, accused no.2, accused no.5 to 11, accused  no.14 and 15 under Section 452 read with Section 149 of the Indian Penal  Code and sentenced them to three years rigorous imprisonment.  He  acquitted accused no.1 to 15 of  the offence punishable under Section 307  read with Section 149 of the Indian Penal Code hence Section 188 of the  Indian Penal Code.  He gave the benefit of doubt to accused nos.7, 9, 14 and  15.  He acquitted accused nos.3, 4, 12 and 13 of all the punishable offences  for which they were charged.   4.      The State did not file any appeal against the accused who have been  acquitted by the trial court and hence the acquittal of those accused has  become final.

5.      However, nine of the accused, being original accused no.1, 2, 6 to 14  being Tulsiram Bhanudas Kamble, Ramchandra Bhanudas Kamble, Ashok  Sahebrao Waghmare, Dagadu Shankar Naikwadi, Dnyaneshwar Shankar  Naikwadi, Santosh Dashrath Kothalkar, Anil Dhondiram Mane, Sunil  Dhondiram Mane and Rajendra Dashrath Kothalkar filed an appeal before  the Bombay High Court.  The High Court by the impugned judgment dated  5.4.1999 acquitted five of the appellants being Ramchandra Bhanudas  Kamble, Ashok Sahebrao Waghmare, Dnyaneshwar Shankar Naikwadi,

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Santosh Dashrath Kothalkar and  Sunil Dhondiram Mane on all counts and  ordered them to be released.

6.      The High Court also acquitted Tulsiram Bhanudas Kamble and Anil  Dhondiram Mane for the offence under Section 302 read with Section 149 of  the Indian Penal Code.  It also acquitted the accused Tulsiram Bhanudas  Kamble, Anil Dhondiram Mane and Rajendra Dashrath Kothalkar for the  offence under Section 324 read with 149 of the Indian Penal Code.

7.      The High Court converted the conviction of accused Tulsiram  Bhanudas Kamble, Dagadu Shankar Naikwadi, Anil Dhondiram Mane and  Rajendra Dashrath Kothalkar  from Section 452 read with Section 149 of the  Indian Penal Code and altered it to Section 452 read with Section 34 of the  Indian Penal Code.  It reduced the sentence to the period already undergone.   The Court further set aside the conviction of Ganesh Kisan Shirsat @  Paparkar on both the counts namely Section 302 read with Section 149 and  Section 452 read with Section 149 of the Indian Penal Code.  It further  allowed the appeal and set aside the conviction of Dhanaji Dashrath  Kothalkar under Section 452 read with Section 149 of the Indian Penal  Code.    8.      The appeal in this Court has been filed by the State of Maharashtra  and the following persons have been made the respondents :

1.      Tulsiram Bhanudas Kamble         Govindpura,         Tal. Pandharpur,         Dist. Solapur.

2.      Ramchandra Bhanudas Kamble         Govindpura,         Tal. Pandharpur,         Dist. Solapur.

3.      Ashok Sahebrao Waghmare         R/o Vagholi,         Tal. Mohol,         Dist. Solapur.

4.      Dagadu Shankar Naikwadi         Tal. Mangalwedha,         Dist. Solapur.

5.      Dnyaneshwar Shankar Naikwadi         Tal. Mangalwedha,         Dist. Solapur.

6.      Santosh Dashrath Kothalkar         R/o Haridas Ves,         Tal. Pandharpur,         Dist. Solapur.

7.      Anil Dhondiram Mane         R/o Govindpura,         Tal. Pandharpur,         Dist. Solapur.

8.      Sunil Dhondiram Mane         R/o Govindpura,         Tal. Pandharpur,         Dist. Solapur.

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9.      Rajendra Dashrath Kotalkar         R/o Kolegalli,         Tal. Pandharpur,         Dist. Solapur.

10.     Ganesh Kisan Shirsat         Tal. Mohol,         Dist. Solapur.

11.     Dhanaji Dashrath Kotalkar         R/o Kolegalli,         Tal. Pandharpur,         Dist. Solapur.

9.      Seven of these respondents before us had been convicted under  Section 302 read with Sections 34 and 149 of the Indian Penal Code.  Two  of these seven persons convicted under Section 302 have died and now the  remaining accused convicted by the trial court under Section 302 of the  Indian Penal Code are accused no.2 Ramchandra Bhanudas Kamble, accused  no.5 Ganesh Kisan Shrisat @ Paparkar, accused no.6 Ashok Sahebrao  Waghmare, accused no.10 Anil Dhondiram Mane and accused no.11 Sunil  Dhondiram Mane.

10.     It may be noted that the trial court acquitted accused no.3 Walchand  Hiralal Shah, accused no.4 Manikchand @ Babushah Shah, accused no.12  Dalu Jagannath Kambale and accused no.13 Laxman Kisan Shirsat @  Paparkar on all counts.  Since no appeal was filed by the State Government  against these accused hence their acquittal has become final.

11.     The remaining eleven accused who have been convicted by the trial  court, have filed Criminal Appeals in the High Court.  In Criminal Appeal  No.32 of 1996 there were nine appellants while in Criminal Appeal Nos.71  of 1996 and 83 of 1996 there were only one appellant in each of these cases.

12.     The High Court acquitted appellants Ramchandra Bhanudas Kamble,  Ashok Sahebrao Waghmare, Dnyaneshwar Shankar Naikwadi, Ganesh  Kisan Shrisat @ Paparkar, Dhanaji Dashrath Kothalkar,  Santosh Dashrath  Kothalkar and  Sunil Dhondiram Mane on all counts.  Thus seven more of  the accused were acquitted by the High Court, and the conviction of those  accused convicted under Section 452 read with Section 32 and 149 of the  Indian Penal Code was converted into conviction under Section 452 read  with Section 34 of the Indian Penal Code.   

13.     In this appeal we are concerned with those convicted by the trial court  under Section 302 read with other provisions of the Indian Penal Code as  well as those not convicted under Section 302.  Out of the seven convicted  under Section 302 by the trial court, two have died as already stated above.   Hence, we are concerned with the cases of the other accused.  We have  carefully considered the evidence on record and the judgments of the High  Court and trial court.

14.     The prosecution case is that the appellants belong to the Koli  community and are inter-related.  Between them on the one hand and the  informant Rajabhau Kamble (PW-7), Dattatraya Kamble (PW-8), Bhaskar  Bhinge (PW-11), his brother Mahesh Bhinge (PW-12), Laxman Kamble (the  deceased) and Kailas Bhinge (the deceased), there was long standing enmity  of an acute nature.  Its details have been furnished in paragraph 9 of the  statement of the informant Rajabhau Kamble.   

15.     It is alleged that on 19.2.1995 at about 5 p.m. the deceased persons  Bhaskar Bhinge and Dattatraya Kamble along with some others were  watching a film on Television inside the house of the deceased Laxman, in  Pandharpur Taluka within the limits of District Sholapur.  The informant

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Rajabhau Kamble and Pandurang Bhinge also came there.  After some time  Panduran Bhinge left.  At about 7.30 p.m. the film got over.  Thereafter the  deceased persons, Dattatraya Kamble and Rajabhau Kamble came and sat in  the courtyard of Laxman.  Bhaskar Bhinge remained inside and was  listening to the news.  At that time in the jeep of acquitted accused Laxman  Paparkar, the appellants along with acquitted accused Laxman Paparkar,  Walchand Shah, Manikchand @ Babusha Shah and Balu Kamble came.   They were armed with weapons Sattur, axe and sword.  They entered inside  the courtyard of Laxman.  Appellants Tulsiram Kamble and Dagadu started  inflicting blows with swords on Dattaraya’s person.  Appellants Rajendra  and Anil Mane assaulted Dattatraya with Sattur.  Kailas Binge, the deceased  at that time was sitting by the side of water tank which was in the courtyard.   Appellants Ramchandra with an axe, Santosh, Dhananjay alias Dahanaji  acquitted accused Laxman, Walchand and Babusha with swords started  assaulting him.  Appellant Tulsiram also is said to have joined them.   Bhaskar Binge (PW-11) in the meantime came out, caught hold of Babusha  Shah, and asked him as to why he was assaulting Kailas, whereupon he  inflicted a blow from the blunt side of sword on his right thigh.  Thereafter  Babusha Shah and Tulsiram lifted Bhaskar Binge and took him to the gate of  the house and made him stand there.  Appellants Dagadu with sword, Raja  alias Rajendra Kothalkar, Anil Mane, Sunil Mane, Ashok Waghmare and  Ganesh Paparkar assaulted the deceased Laxman with Sattur on various  parts of his body like head, face and hand.  In the meantime Bhaskar  Bhinge’s son Mahesh Bhinge (PW-12) came and Walchand Shah inflicted a  sword blow on this person.  After assaulting Laxman, Kailas, Dattatraya,  Bhaskar Bhinge and Mahesh Bhinge, the appellants and the acquittal  accused are alleged to have run away.  

16.     This incident was seen by the victim, Rajabhau Kamble and Suresh  Sobaji (PW-13) in electric light.  It is said that Kailas Bhinge succumbed to  the injuries on the spot.

17.     Immediately after the appellants and the acquitted accused persons  had run away, Rajabhau Kamble took Laxman Kamble and Dattatraya  Kamble to the Municipal Dispensary, Pandharpur.  Bhaskar Bhinge and  Mahesh Bhinge also came there.

18.     The evidence of Dr. Anil Joshi (PW-9) of Municipal Dispensary,  Pandharpur shows that at 7.45 p.m. he examined Laxman Kamble and found  him to be dead.  At 8 p.m., 8.45p.m. and 9.15 p.m. the same day, Dr. Joshi  examined Dattatraya Kamble, Bhaskar Bhinge and Mahesh Bhinge,  respectively.

19.     On the person of Dattatraya Kamble, Dr. Joshi found two incised  wounds and one contused lacerated wound.  Two of the incised wounds  were situated on the head and the remaining two on fingers of the right hand.   The contused lacerated wound was situated on the middle finger of the right  hand.  Since the condition of Dattatraya was precarious, at 8.30 p.m. he was  transferred to Civil Hospital, Sholapur.

20.     On the person of Bhaskar Bhinge, Dr. Joshi found a contusion 6 x 4  cm. on right thigh interior aspect and a transverse abrasion 6 cm. over right  thumb.

21.     On the person of Mahesh Bhinge, Dr. Joshi found 2 lacerated wounds.   One out of them of the dimensions of 2 cm. x 1 cm. was situated on left hand  little finger and the other which was 5 cm. muscle deep was located on the  left hand terminal finger.

22.     On 20.2.1995 Dr. Joshi (PW-9) performed the autopsy on the corpse  of Laxman Kamble and found on the same 16 ante-mortem injuries, their  break-up being thus : 15 incised wounds and 1 contused abrasion.  Nine of  the incised wounds were situated on the head and face and were  accompanied by extensive internal damage.  According to Dr. Joshi the  injuries of the deceased were sufficient in the ordinary course of nature to

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cause death and five of them namely injuries no.1, 2, 3, 4 and 12 were fatal  in nature.

23.     The evidence of the informant Rajabhau Kamble (PW-7) shows that  from Municipal Hospital, Pandharpur the police took him to Pandharpur  Town Police Station where his FIR was lodged at 8.40 p.m., the same day.   It was recorded by A.P.I. Vithal Jadhav (PW-18), who on its basis registered  a case under Sections 147, 148, 302, 307, 452, 323, 324 and 188 I.P.C. vide  C.R. No.23 of 1995.

24.     It is pertinent to point out that the same day between 11 p.m. to 11.50  p.m. Sharana Basappa Tarapore (DW-3) an Executive Magistrate, recorded  the statement  of Dattaraya Kamble.  The said statement is Exhibit-130 and  in it Dattatraya stated that the same day between 7 to 7.30 p.m. while he was  sitting with Kailas Bhinge and Laxman Kamble, appellant Tulsiram Kamble,  Anil Mane, Dagadu Naikwadi, Raja Kothalkar and two other unknown  persons came and started assaulting him.  Tulsiram and Dagadu assaulted  him with swords and the other persons with axe.  All were shouting that "he  be killed".

25.     It may be seen that there are as many as five eye witnesses to the  incident namely PW-7 Rajabhau Kamble (first informant), PW-8 Dattatraya  Kamble, PW-11 Bhaskar Bhinge, PW-12 Mahesh Bhinge and PW-13 Suresh  Sobaji.  However, there still leaves four eye witnesses namely PW-7  Rajabhau Kamble (first informant), PW-8 Dattatraya Kamble, PW-11  Bhaskar Bhinge, PW-12 Mahesh Bhinge.  In our opinion there was no good  reason to disbelieve these four eye witnesses.  Out of these four, three are  injured witnesses.

26.     It is surprising that while the High Court has found these accused to  be guilty under Section 452 of the Indian Penal Code, it has found them to  be not guilty under Section 302 of the Indian Penal Code.  Once the Court  has accepted that the appellants have committed the offence under Section  452 of the Indian Penal Code it follows that High Court has accepted the   prosecution version that the accused along with others are the aggressors and  the incident has happened in the courtyard of Laxman as alleged by the  prosecution.  Thus it is accepted by the High Court that the accused came  with deadly weapons to the house of Laxman and committed criminal  trespass in the said house.  Thus the High Court has accepted the place of the  incident.  We, therefore, find it surprising that the High Court has held these  accused not guilty under Section 302 of the Indian Penal Code.

27.     It is evident from the record that these accused came with deadly  weapons to the house of Laxman in a jeep.  There is also no dispute that two  persons died in the incident and three of the eye witnesses were injured  witnesses, one of them Dattatraya Kamble having very serious injuries being  incised wounds in his head and contused lacerated wound on his fingers.   We, therefore, fail to understand how the High Court acquitted the accused  under Section 302 of the Indian Penal Code.

28.     The reasoning given in paragraph 14 of the High Court judgment to  discard the evidence of these four eye witnesses are :   (a)  They are inimical to the appellants;

 (b)  They have falsely implicated Laxman Shirast         @ Paparkar; and

 (c)  They  have falsely stated that Suresh  Sobaji           (PW-13) witnessed the incident.        

29.     Each of the reasoning assigned by the High Court, in our opinion, is  contrary to the well-settled legal principle.  The witnesses examined on  behalf of the prosecution, apart from being eye-witnesses, were injured   witnesses.  Their presence at the place of occurrence, therefore, cannot be

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doubted.  Only because they were inimical to the respondents, the same by  itself cannot be a ground to discard their evidences.  Although in accepting  the same, some amount of caution is required to be maintained.

30.     In Ramashish Rai  vs. Jagdish Singh [(2005) 10 SCC 498], this  Court held:

"7.  We are clearly of the view that the findings of the  High Court were erroneous, resulting in grave  miscarriage of justice.  The eyewitnesses \026 PWs 1, 2, 3,  5, 8 and 10 consistently supported the case of the  prosecution throughout.  They were subjected to lengthy  cross-examination but nothing could be elicited from   their mouth so as to discard the creditworthiness of their  statements.  The ocular evidence of the eyewitnesses was  corroborated in material particulars by the medical  evidence.  In our view, therefore, the acquittal recorded  by the High Court on the aforesaid reasoning is perverse.   The High Court discarded the eyewitness account,  branded them as inimical witnesses.  This is not the  requirement of law.  The requirement of law is that the  testimony of inimical witnesses has to be considered with  caution.  If otherwise the witnesses are true and reliable  their testimony cannot be thrown out on the threshold by  branding them as inimical witnesses.  By now, it is well- settled principle of law that enmity is a double-edged  sword.  It can be a ground for false implication.  It also  can be a ground for assault. Therefore, a duty is cast upon  the court to examine the testimony of inimical witnesses  with due caution and diligence.  In the present case the  High Court has rejected the otherwise creditworthy  testimony of eyewitness account merely on the ground  that there was enmity between the prosecution party and  the accused party."

31.     In State of U.P. vs. Kishan Chand and others [(2004 7 SCC 629],  this Court observed :

"9.  The submission of the counsel for the accused that  the testimony of PWs cannot be acted upon as they are  interested witnesses is to be noted only to be rejected.   By now, it is well-settled principle of law that animosity  is a double-edged sword.  It cuts both sides.   It could be  a ground for false implication and it could also be a  ground for assault.  Just because the witnesses are related  to the deceased would be no ground to discard their  testimony, if otherwise their testimony inspires  confidence.  In the given facts of the present case, they  are but natural witnesses. We have no reason to  disbelieve their testimony.  Similarly, being relatives, it  would be their endeavour to see that the real culprits are  punished and normally they would not implicate wrong  persons in the crime, so as to allow the real culprits to  escape unpunished."

32.     In Baitullah and another vs. State of U.P. [1998) 1 SCC 509], this  Court noticed Arjun vs. State of Rajasthan [(1994) Supp. (3) SCC 189],  wherein it was observed :

"9. Learned counsel for the appellants first contended  that there was long-standing enmity between the  complainant and some of the witnesses on one hand and

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the appellants on the other and some criminal  proceedings between them were going on when the  alleged incident took place and hence it was due to this  enmity that the appellants were falsely implicated.  It was  also submitted that Bahori, PW1 and Sat Pal Singh, PW7  are also relatives of the deceased and other prosecution  witnesses are also close associates and, therefore, there is  possibility of false implication of the appellants in the  crime in question.  It is an admitted fact that the  complainant and the appellants were on inimical terms  and some criminal proceedings were ending between  them even at the time when the occurrence took place.  It  is equally true that Bahori, PW1 is the brother of the  deceased and informant Sat Pal Singh, PW7 is the son of  the deceased.   But we are not convinced by the aforesaid  arguments that either on account of animosity or on  account of relationship they did not divulge the truth but  fabricated a false case against the appellants.  It is  needless to emphasize that enmity is a double-edged  sword which can cut both ways.  However, the fact  remains that whether the prosecution witnesses are close  relatives of the deceased victim or are on inimical terms  with the deceased involved in the crime of murder, the  witnesses are always interested to see that the real  offenders of the crime are booked and they are not, in  any case, expected to leave out the real culprits and rope  in the innocent persons simply because of the enmity.  It  is, therefore, not a safe rule to reject their testimony  merely on the ground that the complainant and the  accused persons were on inimical terms.  Similarly the  evidence could not be rejected merely on the basis of  relationship of the witnesses with the deceased.  In such a  situation it only puts the Court with the solemn duty to  make a deeper probe and scrutinize the evidence with  more than ordinary care which precaution has already  been taken by the two courts below while analyzing and  accepting the evidence."  

33.     As regards enmity, it is well known that enmity is a double edged  weapon.  It can be a ground for false implication, but it can also be a ground  for correct implication.    

34.     As regards the second ground for rejecting the evidence of these eye  witnesses given by the High Court, namely that they have falsely implicated  Laxman Shirast @ Paparkar, this too, in our opinion was hardly a good  ground of rejecting their evidence.  It is well known that in India the doctrine  of  falsus in uno falsus in omnibus (false in one false in all) does not apply.   The court can partly reject and partly accept the evidence of a witness, and it  is not correct to say that merely because some part of the evidence is found  to be false the entire evidence has to be rejected. [See Krishna Mochi and  others vs. State of Bihar (2002) 6 SCC 81].   If the Court finds that out of  several co-accused, one or more are falsely implicated, that does not  necessarily mean that everyone was falsely implicated.  Similarly, the third  ground for rejecting the testimony of the four eye witnesses, namely that  they have falsely stated that Suresh Sobaji had witnessed the incident, is in  our opinion not a good ground for rejecting the prosecution version in toto.

35.     Thus, in our opinion, the High Court has rejected the evidence of the  four eye witnesses, three of whom were injured, on flimsy grounds.

36.     Learned counsel for the appellant has taken us through the evidence of  these four eye witnesses and we have carefully examined the same.  He  submitted that Dattatraya Kamble did not mention the names of many of the  accused in his statement before the Magistrate in the Hospital.

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37.     In this connection, it may be noted that the incident in question had  taken place at about 5 p.m. and Dattatraya Kamble received deadly injuries  on his head with sharp edged weapon because of which he became  unconscious.  He has stated in his evidence before the trial court that he  regained consciousness at about 11 p.m., and the statement before the  Magistrate was also recorded at about 11 p.m., that is soon after he became  conscious.  His pulse at that time was 90/50.  Obviously, therefore, he could  not be expected to give an accurate version of the incident when he was  unconscious for six hours and he had just regained consciousness.  Hence,  even if he has not named some of the accused before the Magistrate that  does not help the case of the accused.

38.     The evidence of all the four eye witnesses are broadly consistent.   They have mentioned that the accused came to house of the complainant  with arms and deadly weapons and they attacked the deceased and other  persons including the injured witnesses.

39.     Though it is true that it is not necessary to invariably accept the  version of the injured witnesses but it is well settled that greater weight has  to be given to the testimony of the injured witnesses.  We see no reason to  disbelieve them and we agree with the view taken by the trial court.[See  Nain Singh and another vs. State of U.P. [(1991) 2SCC 432], State of  Punjab vs. Gurmit Singh and others [(1996) 2 SCC 384] and Ramappa  Halappa Pujar and others vs. State of Karnataka [2007(6) SCALE 206]

40.     In our opinion, the High Court has not assigned cogent or sufficient  reasons for disagreeing with the findings of the trial court.  The judgment of  the High Court, in our opinion, is based on surmises and conjectures.  In our  opinion this is not a case where the High Court should have interfered with  the conviction by the trial court under Section 302 of the Indian Penal Code.   Thus, by reason of the judgment of the High Court, a great miscarriage of  justice has taken place.  It is well settled that when the reasoning of the High  Court is perverse, the Supreme Court can set aside the judgment of the High  Court of acquittal and restore the judgment of conviction and sentence  passed by the trial court, vide State of U.P. vs. Nawab Singh (2005) 9 SCC  84.   

41.     The post mortem of Laxman Kamble has shown as many as sixteen  ante-mortem injuries out of which fifteen were incised wounds and one  contused abrasion.   

42.     The deceased Kailas Bhinge succumbed to his injuries on the spot.   His ante-mortem injuries shows that thirteen were incised wounds, many of  them on the head and other vital parts of the body.  The injured Dattatraya  Kamble has two incised wounds on his head and the injuries particularly  incised wounds were found on the other witnesses who were injured in the  incident.

43.     These facts lead us to the inevitable conclusion that appellants had  come with arms and deadly weapons to the house of the complainant party  and with the common intention and common object to kill the complainant  party.

44.     This is a case of great injustice which has been caused by the  judgment of the High Court which has acquitted the accused of the offence  under Section 302 of the Indian Penal Code on flimsy grounds.  Such a  judgment if upheld will shake the confidence of the public in the judiciary.

45.     For the reasons given above, the judgment of the High Court is set  aside.  The conviction of the five accused who had been convicted by the  trial court under Section 302 IPC being accused No.2 Ramchandra Bhanudas  Kamble, accused No.5 Ganesh Kisan Shirsat @ Paparkar, accused No.6  Ashok Sahebrao Waghmare, accused No.10 Anil Dhondiram Mane and  accused No.11 Sunil Dhondiram Mane is restored.  These accused are found

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guilty under Section 302 of the Indian Penal Code and are sentenced to life  imprisonment.  

46.     As regards accused No.7 Dagadu Shankar Naikwadi, he had been  convicted by the trial court under Sections 452/149 IPC and sentenced to  three years’ rigorous imprisonment.  The High Court on appeal observed  that he had already undergone 12 months’ imprisonment and hence his  sentence was reduced to the period already undergone provided he deposits a  fine of Rs. 10,000/- within a period of six months.  In our opinion the High  Court erred in reducing the sentence of accused No. 7 Dagadu Shankar  Naikwadi since all the four eyewitnesses viz. Rajabhau Kamble (PW7),  Dattatraya Kamble (PW8), Bhaskar Bhinge (PW11) and Mahesh Bhinge  (PW12) have stated that this accused had also come along with other  accused in a Jeep to the complainant’s house and had attacked the persons  with deadly weapons.  It may be mentioned that the State Government had  not filed any appeal in the High Court for enhancement of the sentence  awarded to accused No. 7 Dagadu Shankar Naikwadi by the trial court and  hence we cannot enhance the sentence.  However, we set aside the sentence  awarded by the High Court and restore the sentence of three years’ R.I.  awarded to him by the trial court.

47.     As regards accused No.9 Santosh Dashrath Kothalkar, he has also  been convicted under Sections 452/149 IPC and sentenced to three years’  rigorous imprisonment.  In appeal the High Court acquitted him on all  counts.  It has come in the evidence of Rajabhau Kamble ((PW-7),  Dattatraya Kamble (PW-8), Bhaskar Bhinge (PW-11) and Mahesh Bhinge  (PW-12) that these accused came along with the other accused persons and  attacked, inter alia, Kailash, the deceased, with a Sattur.  There is no cogent  reason to disbelieve these witnesses.   Since the State Government had not  filed any appeal before the High Court against the sentence awarded to  accused No. 9 Santosh Dashrath Kothalkar by the trial court, we cannot  enhance this sentence.  But we set aside the acquittal of accused No. 9 by the  High Court and restore the sentence of three years’ R.I. under Sections  452/149 IPC awarded to him by the trial court.    48.     As regards accused No.15 Dhanaji Dashrath Kothalkar, he has been  found guilty by the trial court and convicted under Sections 452/149 IPC and  sentenced to three years’ rigorous imprisonment, but his conviction was set  aside by the High Court.  The accused has been named in the FIR and it has  also come in the evidence of the four witnesses mentioned above that he was  also in the group of people who came in the Jeep and attacked the  complainant party with a deadly weapon. According to Rajabahu Kamble  (PW-7), this accused had Sattur in his hand by which he attacked the  deceased.  The State Government did not file any appeal before the High  Court against accused No. 14 Rajendra Dashrath Kothalkar for enhancement  of the sentence awarded to him by the trial court.  Hence we cannot enhance  that sentence.  However, we set aside the sentence awarded by the High  Court and restore the sentence of three years’ R.I. awarded to him by the  trial Court.  

49.     For the same reason as mentioned above, we restore the sentence of  three years’ R.I. awarded to accused No. 15 Dhanaji Dashrath Kothalkar by  the trial court and set aside the lesser sentence awarded to him by the High  Court.   

50.     We are not oblivious of the limited jurisdiction of this Court in  interfering with the judgment of acquittal.  The scope of an appeal against  acquittal is limited.  It is trite that only when two views are possible, this  Court cannot interfere with a judgment of acquittal; but that would not mean  that despite existence of substantial and compelling reasons, the Court will  refuse to interfere in a case where it would be just and proper to do so.

51.     In Chandrappa and others vs. State of Karnataka [2007(3) SCALE  90], a Division Bench of this Court upon considering a large number of  cases, opined:

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"From the above decisions, in our considered view, the  following general principles regarding powers of appellate  Court while dealing with an appeal against an order of acquittal  emerge;

(1)     An appellate Court has full power to review, re- appreciate and reconsider the evidence upon which  the order of acquittal is founded;

(2)     The Code of Criminal Procedure, 1973 puts no  limitation, restriction or condition on exercise of  such power and an appellate Court on the evidence  before it may reach its own conclusion, both on  questions of fact and of law;

(3)     Various expressions, such as, ’substantial and  compelling reasons’, ’good and sufficient  grounds’, ’very strong circumstances’, ’distorted  conclusions’, ’glaring mistakes’, etc. are not  intended to curtail extensive powers of an  appellate Court in an appeal against acquittal.   Such phraseologies are more in the nature of  ’flourishes of language’ to emphasize the  reluctance of an appellate Court to interfere with  acquittal than to curtail the power of the Court to  review the evidence and to come to its own  conclusion.

(4)     An appellate Court, however, must bear in mind  that in case of acquittal, there is double  presumption in favour of the accused.  Firstly, the  presumption of innocence available to him under  the fundamental principle of criminal  jurisprudence that every person shall be presumed  to be innocent unless he is proved guilty by a  competent court of law.  Secondly, the accused  having secured his acquittal, the presumption of  his innocence is further reinforced, reaffirmed and  strengthened by the trial court.

(5)     If two reasonable conclusions are possible on the  basis of the evidence on record, the appellate court  should not disturb the finding of acquittal recorded  by the trial court."

[See Ramappa Halappa Pujar and others vs. State of Karnataka \026  2007(6) SCALE 2006 & Mohinder Singh and others vs. State of Punjab  \026 2006 (10) SCC 418]

52.     Applying the said principle also, we are of the opinion that it is a fit  case, where this Court should exercise its jurisdiction under Article 136 of  the Constitution.

53.     Each one of the appellants before us was armed with deadly weapons.  They came together and death was cause to the deceased.  They entered into  the house.  Two of the appellants had inflicted blows with swords.  We are,  therefore, of the opinion, that common object on the part of each of the  appellants stands proved.  Once formation of common object amongst the  accused is proved, it is not necessary for the court to consider specific overt  act played by each of them.                   54.     Those found guilty by us should be taken into custody forthwith to  serve out their sentences as awarded by the learned trial court.  The appeals

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are allowed.