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PETITIONER: BHIMRAO ANNA INGAWALE AND OTHERS

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT02/04/1980

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. KOSHAL, A.D.

CITATION:  1980 AIR 1322            1980 SCR  (3) 309

ACT:      Indian Penal  Code 1860  (XLV of  1860) Ss.  302, 149 & 148-Animosity and enmity between the six accused and the two deceased [assault  by  the  party  of  the  accused  on  the deceased and  their brothers-Party  of the  accused  whether aggressors and  have acted  in  exercise  of  the  right  of private defence-conviction-whether valid.

HEADNOTE:      Appellants Nos.  1 to  6 were charged and convicted for two offences under section 302 read with section 149 and one under section 148 of the Indian Penal Code for having caused the death of two persons.      Appellants Nos.  1 to  4 and 6 are inter-related, while appellant No.  5 is  Their friend,  and the two deceased are brothers. Appellants  Nos. 1  to 4  and 6 lived Jointly in a house which  abutted on a road 14 feet wide. Opposite, their house lay  the one  belonging to the two deceased. The waste water emanating  from the  house of  the appellant No. 1 had been flowing  towards the  road and seeping into the western wall of the house of the deceased. This resulted in inimical relation between  the two  parties. Animosity also prevailed among the  parties on account of the fact that The family of the deceased  had earlier  sold to  a third person some land which they  wanted to  repurchase but were thwarted in their designs by  the appellants  who were  instigating the vendee not to re-sell the land to the deceased.      The prosecution alleged that on the fateful day, in the morning there  was a dispute and altercation between the two deceased and  the appellants. The incident was noticed by PW 20 who  intervened  and  separated  them  disarmed  the  two deceased and  threw away  the sticks  which he snatched from them. At  about 2  P.M. On  the same  day all the appellants entered the house of the deceased armed with axes and sticks dragged out  the deceased  on the  road and  started beating them with  their respective  weapons. PW  10 and  PW 11, the wives of  the deceased  intervened and  they  also  received injuries at  the hands of the appellants. In the meantime PW 13, PW 14 and their brother Jayakar who came to the place of occurrence were beaten by the appellants who thereafter made good their  escape. The  four injured  brothers and  the two ladies were  removed to the Civil Hospital. The two deceased succumbed to their injuries later.

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    Meanwhile appellant  No. 1  reached the  police station and he complained to the sub-inspector (P.W. 24) that he and his family  members had  been attacked  by the  party of the deceased. On learning that the opposite party had arrived at the local  Civil Hospital,  the  sub-inspector  reached  the hospital and  recorded the  statement (Ex.  55) of  P.W. 12. This formed  the  basis  of  the  first  information  report registered at the police station. On returning to the police station the sub-inspector arrested appellant No. 1. 310      The case  of the appellants was that feelings of enmity existed between  the two  opposing families for two or three years prior to the date of the occurrence, that on that dale there was  exchange of abuses between appellants Nos. 1 to 3 on the  one hand  and the  deceased on  the other  when  the latter were  about to assault the former but could not do so on  account   of  the  intervention  of  PW  20s  that  soon afterwards  the   two  deceased  and  their  three  brothers assaulted appellants Nos. 1 to 4 with sticks and axes at the latters house  when some of the assailants were disarmed and beaten back,  and that  appellants Nos.  4  to  6  were  not present at the scene of the occurrence and had been involved in the  case merely  because they  were related to the other appellants by ties of blood or friendship.      The Sessions Judge was of the opinion that the incident in which  the two  contending parties  exchanged abuses  and which came  to a  close  with  the  intervention  of  PW  20 provided the  motive  for  the  assault  in  which  the  two deceased lost  their lives  and that  the eye-witnesses  had given details  of the  occurrence which  were  omitted  from their statements made to the police but that no significance could be  attached to  this aspect of the matter. He further held that  the occurrence  took place  on the  road Lying in between the  respective houses  of  the  parties,  that  the participation of  all the  accused  in  the  occurrence  was natural and  probable, that  the party  of the  accused were able to  inflict serious  injuries on  their  opponents  and themselves escaped  with comparatively  a mild  beating  and that therefore,  there  was  no  right  of  private  defence available to  the appellants.  On this  finding the Sessions Judge convicted and sentenced the six appellants.      The appeal  to the  High Court  was heard by a Division Bench, but  on Account  of difference  of opinion  among the Judges, the  matter was  referred to  a third  Judge and the appeal  was   dismissed  in  accordance  with  the  majority opinion. All  the three Judges re-appraised the evidence and while the  majority arrived  at the  same conclusion  as the Sessions Judge,  the third  Judge came  to the  finding that there was  no reliable  evidence to  support he  prosecution case that the accused were the aggressors.      In the  appeals to  this Court  on the  questions:  (a) Whether the  prosecution had  proved beyond reasonable doubt that the  party of  the appellants  were the  aggressors and whether it was made out from the records that the latter may have acted  in exercise of the right of private defence, and (b) whether  the participation  of all the appellants in the occurrence was satisfactorily made out: ^      HELD: (a)  (i) The consideration of the ocular evidence coupled with  the testimony  of PW-20 and the circumstantial evidence especially  the medical  part, of  it, prove beyond reasonable doubt  that the  party of the appellants were the aggressors. [323F]      (ii) The  occurrence admittedly  took place on the road in between  the respective  houses of  the deceased  and the

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appellants which is fully made out from the deposition of PW 20 who  is  no  doubt  a  wholly  independent  and  reliable witness. He  was attracted  to the  place of occurrence by a noise which reached him in his field after he had gone there subsequent to  his witnessing  the  three  brothers  of  the deceased running  towards their house. The circumstance that their other  two injured  brothers were  also found lying on the road  lends further  strength to the conclusion that the occurrence took place on the road 311 itself and  not at  the house of the appellants. It may also be  safely  assumed,  apart  from  the  fact  that  all  the prosecution witnesses  say so,  that PW’s 12, 13 and Jayakar were not with the deceased at the inception of the fight and were, on the other hand, working in their fields. [320 D-G]      (iii) If  the party of the deceased were the aggressors and had  made a  concerted attack on the appellants who were taken unawares there is no reason why the former should have come  out   second  best   in  the  combat.  The  fact  that practically all  the injuries  received by the deceased were located in  the head  region and  were inflicted  with great force makes  it highly  probable that  it was  they who were taken unawares and had to bear the brunt of the attack which they had perhaps no means to repulse. [321 B]      (iv) The  fact that the women-folk of the deceased were also injured  during the  occurrence makes  it probable that the ladies  had to  intervene because  the fight was unequal and their  respective husbands  found it  difficult to  cope with it. [321 G]      (v) Another  inference which may well be drawn from the consequences of  the combat  is that PWs 12 and 13 and their brother Jayakar  probably reached  the place  of  occurrence while their brothers were being belabored and that it was at this stage  that the  three new-comers entered the arena and took up  cudgels on  behalf of their hapless family members. [321 D]      (vi) It  is not unoften that improvements in an earlier version are  made at  the trial  in order to give a boost to the prosecution  case, albeit  foolishly. But  that does not mean that  falsity of  testimony in  one material particular would ruin  it from  beginning to end. On the other hand the circumstance will be a goo reason merely for the court to be put on  guard  and  sift  the  evidence  with  extraordinary caution and  to accept  those portions  of it  which  appear fully trustworthy  either  intrinsically  or  by  reason  of corroboration from other trustworthy sources. [321 G]      (vii) The  road has  a width of only 14 feet and if two opposing parties  consisting in  all of  six to ten persons, engage themselves  in violence against each other, the exact place where  the members  of each  would be  injured may not mean anything  especially if  one of  the parties  is  taken unawares and is unarmed. [323 B]      In the  instant case,  none of the injuries suffered by the appellants  (except for one) was located on a vital part and all of them without exception were simple in nature, the injuries on  the two  deceased  persons  being  in  contrast practically all deadly. [323 D]      (b)(i) Appellants  Nos. 4  to 6  are  entitled  to  the benefit of doubt in the matter of their participation in the occurrence. [324 B]      (b) (ii)  Appellants Nos.  1 to  3  are  proved  beyond reasonable doubt  to have  taken part in the fight. They are not merely named in that behalf by the eye-witness but admit their participation  in  the  occurrence  which  is  further assured by  reason of  the fact  that all three of them were

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found injured  immediately thereafter.  The same is not true of the  other there  who have  denied their  presence at the time  and   place  of   the  occurrence   and  about   whose participation in  the fight  no other  assuring  factors  is forthcoming. [323 G] 312      (iii) According  to PW  20, appellant No. 4 was present at the scene when the abuses were exchanged but that fact is no guarantee  of his  participation in  the occurrence which took place  about a  couple of  hours later.  No incongruity results from  the exclusion  of appellants  Nos. 4 to 6 from the fight  be cause the other three appellants would have as effectively  caused  all  the  injuries  found  on  the  two deceased and  the two  ladies all  by themselves  as if they were caused by them with the assistance of appellants Nos. 4 to 6. [323H-324A]      (c) The  offence under section 148 of the Code falls to the ground  with the acquittal of appellant Nos. 4 to 6, and so does  that under section 149 thereof. The two offences of murder  were   committed  by  appellants  Nos.  1  to  3  in furtherance of  their common  intention so  that each one of them is liable to conviction on two counts under section 302 read with section 34 of the Indian Penal Code. [324C-D]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 349 of 1979.      Appeal by  Special Leave  from the  Judgment and  order dated 27/28-9-1977  of Bombay  High Court in Criminal Appeal No. 593/76.      S.D.  Dashme,  V.N.  Ganpue,  Mrs.  V.D.  Khanna,  C.K. Ratnaparkhi and Miss Geeta Sharma for the Appellants.      M.C. Bhandare and M.N. Shroff for the Respondent.      The Judgment of the Court was delivered by      KOSHAL, J.  This appeal  by special  leave is  directed against a  judgment dated  27th/28th of  September, 1977, of the High  Court of  Maharashtra upholding  the conviction of the six  appellants recorded  by the  learned Sessions Judge for two offences under section 302 read with section 149 and of one  under section  148 of  the Indian  Penal  Code,  the sentence awarded  being imprisonment for life on each of the first two  counts and  of rigorous imprisonment for one year on the  third with  a direction that the sentences shall run concurrently.      The first appeal in the High Court was originally heard by Vaidya  and Sawant,  JJ., who differed with each other on the judgment  to be  rendered, Vaidya,  J., holding that the appeal merited  dismissal  and  Sawant,  J.,  being  of  the opinion that  it deserved  acceptance in  full. The case was therefore laid  under section  392 of  the Code  of Criminal Procedure before Apte, J., who concurred with Vaidya, J., so that the appeal stood dismissed by the impugned order.      2. Certain  facts are  not in dispute and may be stated at the  outset. The  occurrence took  place on  the 11th  of November, 1974,  in village Kole to which all the appellants except Khashaba  (appellant No. 5) belong, Appellants Nos. 1 to 4  and 6 live jointly in a house which abuts on a road 14 feet wide. Opposite that house lies the one belong- 313 ing to the two unfortunate persons who lost their lives as a result of  the occurrence  which is said to have taken place in consequence of inimical relations between the accused and the opposite party. The waste water emanating from the house

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of appellant  No. 1  had been flowing towards the other side of the  road and  seeping into the western wall of the house of the  deceased. This  was one  of the  factors leading  to animosity between the parties, another being that the family of the deceased had earlier sold to a third person some land which they  wanted to re-purchase but were thwarted in their design by the accused who were instigating the vendee not to re-sell the land to the deceased.      3. The  deceased  were  related  to  five  of  the  eye witnesses as would appear from the following pedigree-table:                          Anandrao                               |                               |      ______________________________________________      |                                            |      |                                            | Abasahed (eye                                Shripati witness (PW-19)                                   |                                                   |      ____________________________________________________      |              |              |           |       |      |              |              |           |       |      |              |              |           |       |    Nivas        Balasaheb      Bhimrao      Uttam  Jayakar (deceased)     (deceased)     (eye witness  (eye   (eye =Lakshmi       =Droupadi      PW-12)        Witness witness (eye witness   (eye witness                 PW-13)  not PW-10)          PW-11)                             produced)      The relationship  inter se  between  accused-appellants Nos. 1 to 4 and 6 is shown in the table below along with the weapons of offence said to have been wielded by each of them and an absconding accused during the occurrence :                        Bhimrao                 (appellant No. 1-axe)                          |                          |      _________________________________________      |                   |                   |      |                   |                   |    Anna        Banda alias Maruti         Kisan (appellant     (appellant No. 3-stick)    (appellant  No. 2-                  |                No.4- axe  stick)                  |           _______________________________           |                             |           |                             |      Dhondiram                     Shamrao    (appellant No. 6-stick)     (absconding accused-stick) 314      Khashaba accused  No. 5  is said  to be a friend of the family of  the other accused and belongs to another village. He was  said to  be armed  with a  stick at  the time of the occurrence.      4. The  prosecution case  may be  stated thus.  On  the fateful day  Nivas deceased  left his house at about 10 A.M. for Karad  where he wanted to have himself medically checked up. He  returned home at about midday and told his wife that he had  been driven  back by  Anna appellant  No. 2. By then Balasaheb deceased  also came  to his  house from  the sugar factory where  he was  working. It was at this juncture that the two  brothers heard  abuses being  hurled at them by all the accused  and after  emerging from  their house picked up two small sticks and went towards the accused. A scuffle was imminent between  the two  contending parties  when  Bhimrao Kadam PW-20  who hails  from another  village Lying  about a

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mile away  and who  was then  returning home  from his field intervened, separated  them, disarmed  the two  deceased and threw away  the sticks  which he  snatched from  them before continuing his journey.      At about  2 P.M.  all the  accused entered the house of the deceased,  armed as aforesaid, dragged them out of it on to the  road and  started beating them with their respective weapons. Lakshmi  PW-10 and  Droupadi PW-11  intervened  and received injuries  at the  hands  of  the  accused.  In  the meantime  Bhimrao   PW-13,  Uttam  PW-14-and  their  brother Jayakar who  had  been  working  in  their  field  and  were informed by  a boy  about the  assault on the deceased, came running to  the place of occurrence but they too were beaten up by the accused who then made good their escape.      Jayakar brought  a motor vehicle from Islampur and took his four  injured brothers  as well as the two ladies to the Civil Hospital  there. In the meantime Bhimrao appellant No. 1 reached  police station  Islampur where  he complained  to Police Sub-Inspector Pandurang that he (appellant No. 1) and his family  members had  been attacked  by the  party of the deceased. On learning that the opposite party had arrived at the local  Civil Hospital,  the Police Sub-Inspector reached the Hospital  at about  8 P.M.  and recorded  the  statement (exhibit-55) of  Bhimrao PW-12  which forms the basis of the formal first  information report  registered at  the  police station.      Under the  advice of the Medical officer, Islampur, the injured left  the same  evening for  the Civil  Hospital  at Sangli on the way to which Nivas and Balasaheb expired.      On  return   to  the  police  station  Pandurang  PW-24 arrested Bhimrao appellant No. 1. 315      Lakshmi  PW-10   was  examined   on  the  date  of  the occurrence it  self by  Dr. Bhaskar  PW-17 and  was found to have in  the web  connecting the  right thumb  and the index finger a  muscle-deep incised  wound having  the  dimensions 1"x1/4". Droupadi  PW-11 was  examined by  another doctor on the same  day but  she was not produced at the trial for the reason that  she had  in the  mean-time been  transferred to Nagpur. She  was examined  again on  the 18th  of  November, 1974, by  Dr. Shridhar PW-14 who found that on the mid-outer aspect  of   her  left   thigh  was   located  a  blue-black discolouration having a probable duration of eight days.      Bhimrao PW-12  was examined  by Dr. Kantilal Shah PW-16 on the  11th of  November,  1974,  at  the  Civil  Hospital, Sangli,  and   was  found  to  have  suffered  six  injuries consisting of  a scalp-deep  incised wound  located  on  the central parietal  area and  having the dimensions 3" x 1/4", two confused  lacerated wounds  located over  the same area, two contusions  and an  abrasion. The  same doctor  examined Uttam PW-13  on the  same day  when the  latter was found to have on  his person five injuries consisting of two contused lacerated wounds located in the head and three contusions on other parts of the body.      Appellants Nos.  1 to  3 were  examined by Dr. Shridhar PW-14 on  the 11th  of November, 1974 at the Civil Hospital, Islampur. Bhimrao  appellant No.  1 had  on his person three injuries consisting  of a  contusion on  the  right  forearm having the  dimensions 8  cm. x  5 cm.,  a weal  mark on the right shoulder  blade and  an abrasion. Anna appellant No. 2 was found to have suffered eleven injuries consisting of six lacerated wounds,  two contusions,  two weal  marks and  one abrasion, only  one of  them, i.e., a lacerated wound, being located on  a vital  part (the head). Maruti appellant No. 3 had an incised and a lacerated wound on the head and another

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lacerated wound,  two weal  marks and  a contusion  on other parts of the body.      The injuries  so far  described and  found  on  various members of  the opposing  parties were presumably all simple in nature.      Dr. Digambar  Joshi PW-15  carried out  the post mortem examination of  the two dead bodies on the 12th of November, 1974,  Nivas  deceased  was  found  to  have  suffered  four external injuries  two  of  which  were  bone-deep  contused lacerated wounds  located in  the head  region. According to the doctor  the scalp  was all ’boggy’ and the injuries were ’fresh’. The  internal damage to the head, the doctor noted, consisted of  an extensive  haematoma on the scalp, multiple fractures of  the left temporal and parietal bones, fracture of the  right frontal  blade, fracture of the middle cranial fossa on the right side and extradural haema- 316 toma on  the right fronto-parietal region, the left temporal region and the left fronto-parietal region.      In the  opinion of  the doctor  the deceased  must have become unconscious  immediately after  the  receipt  of  the injuries which were inflicted with force and were sufficient in the ordinary course of nature to cause death      Balasaheb deceased was found by the same doctor to have suffered four external injuries two of which were located in the head  region, one  being a  contused lacerated wound and the other  an incised  wound.  The  right  temporal  region, according to  the doctor,  was ’boggy’ and the injuries were ’fresh’. The  internal damage to the head, the doctor noted, consisted  of   an  extensive  haematoma  under  the  scalp, numerous fractures  of the  right and  left  frontal  bones, right and  left parietal  bones and the right temporal bone, congestion of the cortical vessels and bleeding in the brain substance. The  right from  to parietal  region was found by the doctor  to be  soft  and  lacerated.  The  brain-matter, according to  him, was  coming out.  He was  categorical  in stating that the death must have been instantaneous and that the injuries  were individually sufficient to cause death in the ordinary course of nature.      5. 24  witnesses were examined at ’the trial in support of the  prosecution case.  They included five eye-witnesses, namely, Lakshmi  PW-10, Droupadi PW-11, Bhimrao PW-12, Uttam PW-13 and  Aba-saheb PW-19,  all of  whom gave substantially the same  version of  the occurrence  as has  been  set  out above. Bhimrao Kadam PW-20 deposed that at about noon on the fateful day  he was returning home from his fields which lie only at  a distance of about 250 feet from the houses of the parties, when he found appellants Nos. 2, 3 and 4 exchanging abuses with  the two  deceased who  were armed  with sticks. According to  the witness he disarmed the deceased and threw away the  sticks on  to the roof of their house. The witness claimed to have gone away after advising both the parties to settle their  disputes amicably. He then testified to having met Bhimrao  PW-12, Uttam  PW-13 and  their brother  Jayakar when he  returned to  his field  the same  day.  He  further stated that  they were  running but were not armed. The rest of his testimony-in-chief may be summarised thus:           "I again  heard shouts  from  the  houses  of  the      parties. I again came back to the road in between their      houses and saw that Nivas, Balasaheb, Uttam and Bhimrao      had injuries and they were Lying on the road. All these      injured were unconscious and their clothes were stained      with blood. 317      Lakshmi and  Droupadi were  by their  side. The accused

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    were not  present at  that time. This was at about 2.30      P.M. Or 3 P.M." When asked  in cross-examination  as to  what was  the exact place where he met the brothers of Nivas, he replied:           "I immediately  started to my field and I met them      at a  distance of  about 50  or 100 feet. I again heard      the noise  after a  very short  time after reaching the      field." The witness was questioned about what he saw on reaching the place of  occurrence for the second time and what transpired later. He stated :           "Uttam and Bhimrao were lying on the road near the      door of  the house  of the  accused. Nivas was Lying in      the middle  of the  road opposite  to the  door of  the      accused. There  were blood  stains on  the road  at the      place. Jayakar  was present at the scene of offence and      I told him to inform the police at Islampur. Afterwards      l went  to the house of the accused. I found that there      were injuries  on accused  No. 2 Anna and accused No. 3      Banda. Accused  No. 2 Anna was Lying unconscious. Banda      told me  that Nivas  and all his brothers came to their      house and assaulted them."      The last  question put  to him in cross-examination was whether it  was true  that Bhimrao  PW-12, Uttam  PW-13  and their brother  Jayakar were  armed with  sticks and axes. He replied that they had something (in their hands) but that he could not say if they had sticks and axes.      6. The  defence case  may  be  summed  up  as  follows. Feelings of  animosity  existed  between  the  two  opposing families for  two or  three years  prior to  the date of the occurrence as alleged by the prosecution. On that date there was an  exchange of abuses between appellants Nos. 1 to 3 on the one  hand and  the deceased on the other when the latter were about  to assault  the former  but could  not do  so on account of  the intervention  of Bhimrao  Kadam PW-20.  Soon afterwards  the   two  deceased  and  their  three  brothers assaulted appellants Nos. 1 to 3 with sticks and axes at the latter’s house when some of the assailants were disarmed and beaten back.  Appellants Nos. 4 to 6 were not present at the scene of occurrence and had been involved in the case merely because they were related to the other appellants by ties of blood or friendship. 318      7. The  learned Sessions  Judge was of the opinion that the incident  in which  the two contending parties exchanged abuses and  which came  to a  close when Bhimrao Kadam PW-20 intervened provided  the motive for the assault in which the two deceased  lost their  lives. While  examining the ocular testimony he arrived at the findings detailed below:      (a) That  part of  the prosecution  story according  to which the  two deceased  were dragged  out of their house by the  seven   accused  was   never  put  forward  during  the investigation and  was concocted  to sene  as an improvement over the version given earlier.      (b)  The   eye-witnesses  had   given  details  of  the occurrence which  were omitted from their statements made to the police  but no  significance could  be attached  to this aspect of the matter.      (c) Lakshmi  PW-10, Droupadi  PW-11, Bhimrao  PW-12 and Uttam PW-13  were certainly  present at the occurrence as is made out from the fact that they were found to have injuries on their  person immediately  thereafter. Assurance  to  the presence  of  Abasaheb  PW-19  at  the  time  and  place  of occurrence is  also available  in the  fact that  his  house adjoins that of the deceased.

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    (d)  The   incident  in  which  abuses  were  exchanged provided the  motive for the party of the accused to assault their opponents rather than the other way round, because the deceased had  really had  an upper hand in that incident. lt would also  be natural,  in this  view of  the  matter,  for appellants Nos.1  to 3  to summon  help and open a concerted attack. The  participation of  all the  accused therefore in the occurrence was natural and probable.      (e) The  occurrence took  place on  the road  Lying  in between the respective houses of the parties.      (f) The circumstances that two persons from the side of the eyewitness  lost their  lives and  that four  other eye- witnesses belonging to the same family received injuries are sufficient  to   suggest  that  it  was  the  party  of  the appellants who  were the  aggressors even  though appellants Nos. 1 to 3 were also injured during the occurrence; and the fact that  all the eye-witnesses were unreliable in relation to the dragging part of the prosecution story is immaterial, their testimony being otherwise credible. In this connection it has  to be  borne in  mind that  the party of the accused were able to inflict serious injuries on their opponents and themselves escaped with comparatively a minor beating. There was thus  no right  of  private  defence  available  to  the accused. 319      (g) Bhimrao  PW-12 and Uttam PW-13 reached the place of occurrence after  the fight between the party of the accused on the  one hand  and the  two deceased  on  the  other  was already over  and that  in respect of the injuries caused to Lakshmi PW-10, Droupadi PW-11, Bhimrao PW-12 and Uttam PW-13 the party of the appellants had a right of private defence.      It was  in these  premises that  the  learned  Sessions Judge  convicted   and  sentenced   the  six  appellants  as aforesaid and  acquitted them of the minor charges which had been framed  against them in relation to the injuries caused by them to the four eye-witnesses just above named.      8.  In   the  High  Court  all  the  three  judges  who considered the  appeal fully  reappraised the  evidence  and while Vaidya and Apte, JJ., arrived at more or less the same conclusions as  the  learned  Sessions  Judge,  Sawant,  J., recorded diametrically  opposed findings  although he  found Bhimrao Kadam PW-20 to be a wholly independent and therefore a reliable witness. Those findings were :           (i) There  is no  reliable evidence  whatsoever to      support the  prosecution case that the accused were the      aggressors. on  the  other  hand,  the  following  five      circumstances point to the contrary :           (a)  The  concoction   of   that   part   of   the                prosecution  story  according  to  which  the                deceased were  dragged out  of their house by                the appellants.           (b)  During the  incident in  which abuses were ex                changed, appellants  Nos. 2 and 3 were merely                sitting on  the door  steps  of  their  house                while the  two deceased  had gone there armed                with sticks  in an  attempt to  assault their                adversaries.           (c)  "Immediately after"  that incident  came to a                close on  the intervention  of Bhimrao  Kadam                PW-20, the  deceased were reinforced by their                three brothers  and the  occurrence commenced                "immediately thereafter".           (d)  Bodies of  the persons injured on the side of                the deceased  were  found  Lying  nearer  the                house of  the  accused  than  that  of  their

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              opponents.           (e)  Appellants Nos. 1 to 3 also received injuries                which were sufficiently serious and numerous.           (ii) Merely  because two  of the  opponents of the      appellants died and the number of persons injured on 320      their side  was greater than on that of the appellants,      it will not follow that the latter were the aggressors.      9. The  case has  been argued before us at great length by  learned  counsel  for  the  parties  and  the  two  main questions requiring determination are:      (A)  Has the prosecution proved beyond reasonable doubt           that  the   party  of   the  appellants  were  the           aggressors and  that it  is not  made out  on  the           record that  the latter  may well  have  acted  in           exercise of the right of private defence?      (B)  If  the   answer  to   question  (A)   is  in  the           affirmative, whether  the participation of all the           appellants in  the  occurrence  is  satisfactorily           made out ?      10. On  question (A)  we have no hesitation in agreeing with the conclusion arrived at by the learned Sessions Judge and Vaidya  and Apte,  JJ., and  we shall record our reasons briefly. The occurrence admittedly took place on the road in between the  respective  houses  of  the  deceased  and  the appellants which  is fully  made out  from the deposition of Bhimrao Kadam PW-20 who is no doubt a wholly independent and reliable witness.  When he  was attracted  to the  place  of occurrence by  a noise  which reached him in his field after he had  gone there  subsequent to  his witnessing  the three brothers of  the deceased  running towards  their house,  he found that  Bhimrao PW-12,  Uttam PW-13  and their other two injured brothers  were all  Lying unconscious  on  the  road where Lakshmi  PW-10, Droupadi  PW-11 and  Jayakar were also present. It  is to  be noted  that the  heads of  Nivas  and Balasaheb  had   been  smashed   to  pulp  so  that  in  all probability neither  of them  could have moved a step before falling down  after the  receipt of  the injuries which were detected on  their dead  bodies by Dr. Digambar Joshi PW-15. We have to take it for granted there fore that they were hit where they  fell. The  circumstance  that  their  other  two injured brothers  were also  found Lying  on the  road lends further strength  to our conclusion that the occurrence took place on  the road  itself and  not  at  the  house  of  the appellants. It  may also  be safely  assumed, apart from the fact that  all the  witnesses say  so, that  Bhimrao  PW-12, Uttam PW-13  and Jayakar  were not  with the deceased at the inception of  the fight and were, on the other hand, working their fields.  This follows  from the  testimony of  Bhimrao Kadam PW-20  which bears  repetition on the point. He stated that while  he was returning from his house to the fields at 2 .30  or 3 P.M. he found the three brothers of the deceased ’running’ which obviously mean 321 running towards their house. It is the case of Bhimrao PW-12 and Uttam  PW-13 that they were informed in their field by a boy named  Mehar that  their brothers were being attacked by the party  of the appellants and that it was on that account that they ran towards their house. This assertion fully fits in with  the narration  of events  by Bhimrao  Kadam  PW-20. Another very  decisive circumstance  is the  nature  of  the injuries received  by the  two contending  parties.  If  the party of  the deceased  were the  aggressors and  had made a concerted attack  on the  appellants who were taken unawares there is  no reason  why the  former should  have  come  out

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second best in the combat. The fact that practically all the injuries received  by the  deceased were located in the head region and  were inflicted  with great force makes it highly probable that it was-they who were taken unawares and had to bear the brunt of the attack which they had perhaps no means to repulse.  The fact that their womenfolk were also injured during the  occurrence makes it probable that the ladies had to  intervene  because  the  fight  was  unequal  and  their respective husbands  found in  difficult to  cope  with  it. Another  inference   which  may   well  be  drawn  from  the consequences of  the combat is that Bhimrao PW-12, Uttam PW- 13 and  their brother  Jayakar probably reached the place of occurrence while  their brothers  were being  belaboured and that it  was at  that stage that the three newcomers entered the arena  and took  up cudgels  on behalf  of their hapless family members.  That is the only reasonable way, it appears to us,  in which all the injuries suffered by the combatants on the two sides can be explained.      11. It  is true,  as pointed out by Sawant, J., as well as the  learn ed Sessions Judge, that the eye witnesses have improved their  case at  the trial over the story which they put forward  at the  investigating stage and therefore prove their unreliability  in material  particulars; but then they are corroborated  in certain other material aspects of their testimony by  unimpeachable evidence  in  the  form  of  the injuries suffered  by the  two sides,  the place  where they were inflicted  and the consequences which flowed from them, and, in  those aspects we cannot but believe them. It is not unoften that  improvements in an earlier version are made at the trial  in order to give a boost to the prosecution case, albeit foolishly.  But that  does not  mean that  falsity of testimony in  one material  particular would  ruin  it  from beginning to  end. On  the other hand the circumstances will be a good reason merely for the court to be put on guard and sift the evidence with extraordinary caution and to accept y those portions  of it  which appear fully trustworthy either intrinsically or  by  reason  of  corroboration  from  other trustworthy sources.  And that  is how  we have accepted the eye-witness account in part as stated above. 322      12. We may here frankly state that the reasons given by Sawant, J.,  in holding  that the party of the deceased were the aggressors  do not  commend themselves  to us.  The fact that improvements  were made  by the  eye-witnesses  on  the earlier story  and the  dragging incident  was introduced at the trial  stage has already been noticed by us but, without more, it  cannot be  taken to  mean that it was the party of deceased who  set the  ball rolling.  The incident  in which abuses were  exchanged between  the two  contending  parties again does  not lead  to the inference that it was the party of the deceased who were guilty of aggression. That incident no doubt  provided the  motive for  the occurrence  but such motive was  attributable to both parties and perhaps more so to that  of the  appellants who must have felt humiliated by the show  of force  indulged in  by the deceased. It further appears to  us that  Sawant, J.  misread  the  testimony  of Bhimrao Kadam  PW-20 when  he remarked  that the  fight took place "immediately  after" the  exchange-of-abuses  incident which had  come to  a close  at the  intervention of Bhimrao Kadam PW-20. It is no doubt true that that witness did state in answer to a question in cross-examination:           "I immediately  started towards my field and I met      them at  a distance  of about  50 or  100 feet. I again      heard the  noise after a very short time after reaching      the field."

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The words  "I immediately  started towards my field" have no connection whatsoever with the incident in which abuses were exchanged. In  this connection  we may refer to that portion of the  evidence of  the witness  in which  he categorically stated that  that incident had taken place about midday when he was returning home from his field, that he left after the incident and that he met Uttam, Bhimrao and Jayakar "while I was again  going back-to  my field."  The inference is clear that after  the incident in which abuses were exchanged, the witness had  gone home  to  his  village  which  lies  at  a distance of  about a  mile from  the place of occurrence and that he  was again  returning to  his field  when he met the three brothers  of the  deceased which was, according to the witness, ’at about 2.30 or 3 P.M.’.      This misinterpretation of the evidence of Bhimrao Kadam PW-20 by  Sawant, J.,  appears to  us to have influenced the learned Judge  in not  a little  measure in  coming  to  the conclusion which  he ultimately  arrived at. But then he was also not  right, in  our opinion, in inferring aggression on the part  of  the  party  of  the  deceased  from  the  cir- cumstance that  "the bodies of the injured were found nearer the house of the accused than the house of the deceased". It is true that Bhimrao Kadam PW-20 did assert: 323           "Uttam and Bhimrao were lying on the road near the      house of  the accused. Nivas was lying in the middle of      the road opposite to the door of the accused."      But from  this no  inference such  as has been drawn by the learned  Judge is  reasonably possible.  Admittedly  the road has  a width  of only  14  feet  and  if  two  opposing parties, consisting  in all  of six  to ten  persons, engage themselves in  violence against  each other, the exact place where the  members of  each would  be injured  may not  mean anything, especially if one of the parties is taken unawares and is  unarmed. In  any case  the fact  that the road was a narrow one makes the circumstance relied upon by the learned Judge wholly innocuous. The only other circumstance which he pressed into  service in  support of his conclusion that the accused appeared  to have  acted in exercise of the right of private defence  was that  they too "received injuries which were sufficiently  serious  and  numerous"  which  does  not appear to  be an  accurate statement  of facts. The injuries referred to  by him  were no  doubt  as  numerous  as  those suffered by  the  other  party;  but  then  they  cannot  be classified as  ’sufficiently serious’.  Except for one. none of them  was located on a vital part and all of them without exception were  simple in  nature, the  injuries on  the two deceased persons being in contrast practically all deadly.      13. Thus,  the consideration  of  the  ocular  evidence coupled with  the testimony  of Bhimrao  Kadam PW-20 and the circumstantial evidence,  especially the medical part of it, lead us  to an  answer in  the affirmative  to question  (A) posed above.      14.  On  the  question  of  the  participation  of  the appellants in  the occurrence  we have again to proceed with extraordinary caution  in view  of the  fact that  the  eye- witnesses are not only highly interested in exaggerating the number of the opposite party during the attack but have also been shown to have scant regard for truth when their selfish interests so  demand. In this view of the matter we consider it safe  to hold  that appellants  Nos. 1  to 3  are  proved beyond reasonable  doubt to  have taken  part in  the fight. They are  not merely  named  in  that  behalf  by  the  eye- witnesses but  admit their  participation in  the occurrence which is  further assured  by reason  of the  fact that  all

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three of them were found injured immediately thereafter. The same is  not true  of the  other three who have denied their presence at  the time  and place of the occurrence and about whose participation in the fight no other assuring factor is forthcoming. It  is true that according to Bhimrao Kadam PW- 20, appellant  No. 4  was present at the scene when the abu- ses were  exchanged but  that fact  is no  guarantee of  his participation in  the occurrence  which took  place about  a couple of hours later. 324 And no  incongruity results from the exclusion of appellants Nos.  4  to  6  from  the  fight  because  the  other  three appellants would have as effectively caused all the injuries found on  the  two  deceased  and  the  two  ladies  all  by themselves  as   if  they  were  caused  by  them  with  the assistance of  appellants Nos.  4 to  6. In this view of the matter we are of the opinion that appellants Nos. 4 to 6 are entitled to  the benefit  of doubt  in the  matter of  their participation in  the occurrence.  We therefore  accept  the appeal in  so far  as they  are  concerned,  set  aside  the conviction recorded  against and  the sentences imposed upon them by  the courts  below and  acquit them of the charge in its entirety.      15.  The  appellants  were  convicted  by  the  learned Sessions Judge of an offence under section 148 of the Indian Penal Code  and of  two offences of murder under section 302 read with  section 149  of  the  Code.  The  first  offence, namely, that  under section  148 of  the Code,  falls to the ground with  the acquittal of appellants Nos. 4 to 6, and so does that  under section  149 thereof.  It is  however quite clear from  the findings  arrived at by us, especially those relating to  the nature  of the injuries suffered by the two deceased and  the consequences  resulting from them that the two offences  of murder  were committed by appellants Nos. 1 to 3  in furtherance  of their common intention so that each one of  them is  liable to  conviction on  two counts  under section 302  read with  section 34 of the Indian Penal Code. We  hold  accordingly  and  sentence  each  of  those  three appellants to  imprisonment for  life on  each count  with a direction that  the two sentences of life imprisonment shall run concurrently. Accordingly, the appeal fails in so far as they are concerned except in relation to the modification in the conviction and sentences as directed above. N.V.R 325