REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 173 OF 2007  

EKNATH GANPAT AHER & ORS. ..Appellants

Versus

STATE OF MAHARASHTRA & ORS. ..Respondents  

WITH

CRIMINAL APPEAL NO. 174 OF 2007

JUDGMENT

Dr. Mukundakam Sharma, J.

1. By this judgment and order, we propose to dispose of the  

two  appeals  filed  by  the  fourteen  accused  persons  who  

have  been  convicted  and  sentenced  by  the  2nd Ad-hoc  

Additional Sessions Judge, Ahmednagar by judgment and

order  dated  10.09.2004  which  has  been  upheld  by  the  

High Court of Bombay, Aurangabad Bench.

2. Originally, there were altogether 38 accused persons, out  

of which two were juveniles. Consequently, the trial Court  

of the 2nd Ad-hoc Additional Sessions Judge, Ahmednagar  

tried  36  accused  persons  and  by  judgment  and  order  

dated  10.09.2004  convicted  35  accused  persons  of  the  

offences under various sections of the Indian Penal Code  

[for  short  ‘IPC’]  including  the  offence  punishable  under  

Section 302 read with Section 149 IPC and the remaining  

one accused person was acquitted.  

3. Being aggrieved by the aforesaid judgment and order of  

conviction and sentence passed by the trial Court, all the  

35 accused persons filed an appeal being Criminal Appeal  

No.  617  of  2004  before  the  High  Court  of  Bombay,  

Aurangabad  Bench.  By  its  judgment  and  order  dated  

14.03.2006,  the  High Court  acquitted  21 out  of  the  35  

convicted accused persons while  upholding the order  of  

conviction  and  sentence  of  the  remaining  14  accused  

persons.  

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4. Being aggrieved by the aforesaid order of conviction and  

sentence passed by the High Court, two appeals have been  

filed by the  14 convicted persons which we have  heard  

together.  

5. The  counsel  appearing  for  the  parties  have  taken  us  

through the judgments of the Courts below against which  

the present appeals are filed as also through the evidence  

on record.  

6. Before we proceed to discuss the issues that arise for our  

consideration,  it  would  be  relevant  and  appropriate  to  

recapitulate  the  facts  out  of  which  the  present  appeals  

arise.  

7. Accused numbers 1 to 36 were charge-sheeted and sent  

for  trial  for  committing  offences  including  of  being  

members of  an unlawful  assembly,  for  causing grievous  

hurt in prosecution of the common object of the unlawful  

assembly  and also  for  committing  murder.  The  said  36  

accused persons were charge-sheeted under Sections 143,  

147,  148,  149,  325/149,  326/149,  324/149,  504/149,  

506/149,  337/149,  338/149,  341/149,  307/149  and  

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302/149 of the IPC. In addition to the aforesaid offences,  

the accused persons were sent for trial for possession of  

weapons in contravention of the provisions of the Arms Act  

and thereby committing offence under Section 4 read with  

Section 25 of the Arms Act.  

8. A criminal case [FIR Crime No. 138/2003 – Exh.138] was  

registered on 12.09.2003 on the basis of the complaint of  

one Bajirao Bhaguji Zavare [PW2]. The said complaint was  

recorded by Mohan Bankar [PW-12], P.S.I. attached to the  

Police  Station,  Parner  who has  stated  that  prior  to  the  

recording of the aforesaid complaint of PW-2, information  

was  received on telephone  by  the  Parner  Police  Station  

from the Kotwali Police Station, Ahmednagar regarding the  

admission of injured and the deceased in the hospital of  

Dr. Deshpande. On receipt of the said information, PW-12  

immediately rushed to the said hospital. On reaching the  

hospital, he had drawn the inquest panchnama of the two  

dead bodies of deceased Balasaheb Rambhau Salunke and  

Vilas Rambhau Salunke, who had died in the meantime.  

In the said hospital, he also recorded the complaint of PW-

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2  and  thereafter  he  returned  to  the  Police  Station  

whereafter the aforesaid FIR was registered.  

9. It is also alleged that both the accused party as well as the  

complainant  party  were  in  dispute,  although,  they  are  

residents of different villages. It has also come on record  

that some of the accused persons and the complainant are  

relatives. There is a temple of Khandoba situated at village  

Kamatwadi  and  the  same  was  initially  managed  by  

Khandoba  Deo  Panch  Committee  constituted  of  the  

respectable  villagers.  Subsequently,  Shri  Khanderao  

Deosthan Trust was given the responsibility of managing  

the  said  temple.  It  is  also  alleged  that  Shri  Khanderao  

Deosthan Trust, of which some of the accused persons are  

members,  owns  and  holds  several  properties  at  village  

Kamatwadi  including  the  lands  Gat  Nos.  166,  168  and  

170, although, there is a serious dispute with regard to  

the title and possession of land, particularly, Gat No. 170.  

The deceased and the  complainant  party  claims title  in  

respect of 2/3rd of the land Gat No. 170 contending, inter   

alia, that the said land was previously owned by Bhosales  

from whom some members of the complainant party had  

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purchased  the  said  land.  It  is  needless  to  state  at  this  

stage  that  there  are  civil  suits  instituted  by  both  the  

parties and pending in respect of title and possession of  

the aforesaid land. An order of status quo was also passed  

by the  trial  Court  in respect of  the said land under  its  

order dated 06.08.2003.  

10.It  is  alleged  that  on  12.09.2003  at  about  10.00  a.m.  

complainant Bajirao Bhaguji Zavare along with Balasaheb  

Rambhau,  Vilas  Rambhau,  Ratanbai  Sulbha,  Kantabai,  

Pandurang Maruti Hingade and others went to the land  

Gat  No.  170  for  removing  tomato  plants  and  grass  for  

cleaning the lands. At about 1.00 p.m., a mob of about 75-

100 persons of Kamatwadi came on the top of north side  

hill situated adjacent to land Gant No. 170. It is alleged  

that the members of the said mob while scaling down the  

hill  also pelted stones, upon which, the members of the  

complainant party started running to save their lives. They  

were chased by the accused persons and thereafter it is  

alleged that the accused persons beat up the members of  

the complainant party by sticks, iron rods and swords and  

thereby seriously injuring Balasaheb Rambhau Salunke,  

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Vilas  Rambhau  Salunke  and  some  other  persons  

belonging  to  the  complainant  party.  All  the  aforesaid  

injured  persons  were  rushed  to  the  hospital  where  

Balasaheb Rambhau Salunke and Vilas Rambhau Salunke  

were  pronounced  dead  whereas  the  rest  of  the  injured  

persons were admitted as indoor patients. It is also to be  

noted that a number of accused persons, namely, A-7, A-

10, A-12, A-13, A-20, A-23, A-25, A-27, A-28, A-31, A-33,  

A-34,  A-35  &  A-36  received  different  kinds  of  injuries  

including  grievous  injuries  on the  vital  parts.  It  is  also  

alleged  that  Bajirao  Bhaguji  Zavare  [PW2],  Pandurang  

Maruti Hingade [PW-5], Sulbha Vilas Salunke [PW-8] and  

Rathan w/o Balasaheb Salunke [PW-9] were eye-witnesses  

to the said occurrence. Apart from the aforesaid injured  

eye-witnesses, several other members of the complainant  

party  namely,  Janabai  Hingade,  Babaji  Hingade,  Uttam  

Hingade,  Zumberbai  Pandurang  Hingade  were  also  

injured.

11.On  completion  of  the  investigation,  police  submitted  

chargesheet against 36 accused persons inasmuch as two  

of the 38 accused persons were found to be juvenile. On  

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completion  of  the  trial,  the  trial  Court  convicted  35  

accused  persons  while  acquitting  the  remaining  one  

accused person. The High Court, on appeal, acquitted 21  

of the 35 convicted accused persons. Hence, the remaining  

14 convicted accused persons have filed the present two  

appeals.  

12.Mr. U.R. Lalit,  learned senior counsel appearing for the  

appellants submitted before us that the evidence against  

the  35  accused  persons  being  similar  in  nature,  the  

Courts  below  committed  an  error  of  law  and  facts  in  

acquitting the 21 out of the said 35 accused persons while  

maintaining the conviction and sentence of the remaining  

14  accused  persons.  He  submitted  that  this  was  done  

despite the fact that there is no independent and specific  

evidence  to  prove  and establish that  the  said  convicted  

persons have played any independent and separate role in  

committing the aforesaid offences. It was also submitted  

by learned senior counsel that none of the eye-witnesses  

had  named  any  of  the  accused  ascribing  to  him  any  

specific role in causing injuries to the deceased Balasaheb  

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Rambhau Salunke and Vilas Rambhau Salunke or to any  

other injured witness.  

13.Mr. Lalit, after drawing our attention to the evidence of  

the  witnesses,  submitted  that  there  is  an  omnibus  

statement involving all the accused persons in the death of  

Balasaheb Rambhau Salunke and Vilas Rambhau Salunke  

as  also  for  injury  to  some  of  the  members  of  the  

complainant  party  and  that  there  is  no  independent  

evidence to show the specific role played by each one of  

them in the incident. It was also submitted by him that  

there is total absence of any explanation in respect of the  

injuries sustained by the accused persons, some of whom  

had even sustained grievous injuries. Relying on the same,  

it was submitted by him that when a large mob of about  

75-100 people descended to the place of occurrence and  

there were a number of people from the complainant side  

also present, it was not possible to see as to what really  

happened during the melee and therefore when 22 of the  

35  accused  persons  were  acquitted  in  view  of  lack  of  

specific  evidence,  the  remaining 14 persons should also  

have been acquitted.  

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14.In the light of the aforesaid submissions of the learned  

senior  counsel  appearing  for  the  appellants,  we  have  

examined the records and also heard the learned counsel  

appearing for the State.  

15.Admittedly,  there  is  a  dispute  subsisting  between  the  

complainant party and the accused persons regarding the  

land of Gat No. 170. According to the accused persons, the  

said land belongs to the Trust whereas the complainant  

party  alleges  that  a  part  of  the  said  land  had  been  

purchased by some of them from Bhosale group and they  

therefore  tried  to  enter  into  possession  of  the  same  by  

removing tomatoes planted by PW- 4 who was cultivating  

the said land. The incident happened at about 1.00 p.m.  

on the fateful date when a mob of about 75-100 people  

descended to the place of occurrence. In the melee that  

followed  PWs  2,  5,  8  &  9  received  injuries  whereas  

Balasaheb Rambhau Salunke and Vilas Rambhau Salunke  

received  grievous  injuries  and  consequently  they  were  

declared  dead  at  the  hospital.  A  number  of  accused  

persons  also  received  injuries  including  some  having  

received  grievous  injuries  but  no  explanation  is  

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forthcoming  regarding  the  said  injuries  from  the  

prosecution side.  

16.The High Court based its order of conviction and sentence  

regarding the appellants on the ground that the accused  

had  admitted  that  it  was  Balasaheb  Rambhau  Salunke  

and Vilas  Rambhau Salunke who had received grievous  

injuries on account of  assault  by the mob and that the  

right of private defence of protecting the possession of the  

land Gat No. 170 was not available to the accused persons  

inasmuch as the accused had not been able to establish  

by  unimpeccable  evidence  that  Devasthan  Trust  or  the  

accused who were injured were in possession of land Gat  

No. 170.  

17.It  was also held by the Courts below that  the accused  

persons who had sustained injuries were members of the  

unlawful  assembly  which was formed with the common  

object of committing murder of both the deceased persons  

and it was in prosecution of the common object that the  

accused  persons  also  caused  injuries  to  the  said  eye-

witnesses. The aforesaid findings were recorded by both  

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the Courts below despite recording a finding that not even  

a  single  eye-witness  was able  to  categorically  name the  

particular  accused  who  had  inflicted  injuries  to  the  

deceased or to any of the injured witnesses and that only  

vague and omnibus statements were made.

18.The High Court disbelieved the statement of Rathan w/o  

Balasaheb Salunke [PW-9] with regard to identification of  

the assailants on various grounds, one of which was that  

her statement came to be recorded only on 18.11.2003,  

i.e.,  the  date  on  which  the  charge-sheet  against  the  

accused persons came to be filed. Despite the fact that a  

number of accused persons had received injuries and also  

despite the fact that no reason was forthcoming from the  

prosecution  in  regard  to  the  injuries  suffered  by  the  

accused  persons,  the  Courts  below  discarded  the  said  

injuries  holding  that  the  said  injuries  were  extremely  

minor and that injured accused persons could not prove  

that they had been assaulted by the complainant party.  

The Courts below were of the opinion that stand taken by  

the  accused  persons  was  not  enough  to  discard  the  

credible evidence of the injured eye-witnesses.

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19. In our considered opinion the aforesaid approach of the  

Courts  below  was  incorrect.  Nine  persons  including  four  

witnesses  belonging  to  the  complainant  party  received  

injuries  whereas  as many as 14 accused persons received  

injuries including some who even suffered grievous injuries.  

Admittedly, there was a mob of about 75-100 persons who  

descended from the hill  side to the place of occurrence by  

pelting  stones  and  a  melee  followed.  Not  even  a  single  

witness  including  the  injured  witnesses  could  specifically  

state  as  to  who  had  caused  what  injury  either  to  the  

deceased or to the injured witnesses or to the accused. A very  

general statement has been made that the accused persons  

were armed with deadly weapons and caused injuries to the  

complainant  party.  In  a  situation  where  a  mob of  75-100  

persons entered into a clash with the complainant party it  

could not have been possible for any of the witnesses, who  

would naturally be concerned with their own safety and to  

save  themselves  from  the  assault,  to  see  as  to  who  had  

inflicted what type of injury either on the deceased or on the  

injured witnesses.  

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20. In view of such omnibus and vague statements given by  

the  witnesses,  the  Court  below  acquitted  as  many  as  21  

accused persons on the ground that there is no evidence on  

record to implicate them in the offences alleged. There being  

no other evidence to specifically ascribe any definite role to  

any of the 14 appellants herein, it is difficult to hold that any  

of the present appellant had inflicted any particular injury on  

any of the deceased or the injured witnesses. Unless there is  

cogent and specific evidence attributing a specific role in the  

incident to the accused persons, who have themselves been  

injured  and  there  being  no  explanation  forthcoming  as  to  

such injuries, it would be unsafe to pass an order recording  

conviction and sentence against the appellants, moreso when  

the  prosecution  has  produced,  in  support  of  its  case,  

witnesses  who  are  inimical  to  the  accused  persons.  It  is  

crystal from the records that land of Gat No. 170 is the bone  

of  contention  between  the  complainant  party  and  the  

accused.  As  noted  above,  civil  cases  with  regard  to  the  

question of title and ownership to the said land have been  

instituted by both the accused and the complainant  party  

which are pending final adjudication.

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21. It is an accepted proposition that in the case of group  

rivalries and enmities, there is a general tendency to rope in  

as many persons as possible as having participated in the  

assault. In such situations, the Courts are called upon to be  

very cautious and sift the evidence with care. Where after a  

close scrutiny of the evidence, a reasonable doubt arises in  

the mind of the Court with regard to the participation of any  

of those who have been roped in, the Court would be obliged  

to give the benefit of doubt to them.  

22. There is no doubt that the incident which happened on  

12.09.2003  was  an  unfortunate  incident  in  which  two  

persons have lost their precious lives. Not only the members  

of the complainant party received injuries, the members of  

the accused party were also injured during the course of the  

incident  and some of  the  accused persons even sustained  

grievous injuries. A bare look at the injury report, which is  

contained  in  the  impugned  judgment,  would  prove  and  

establish the said fact.  

23. On appreciation  of  the  entire  evidence  on  record,  we  

cannot uphold the findings recorded by the High Court as  

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also by the learned trial Court. In our considered opinion, the  

aforesaid  findings  are  against  the  basic  canons  of  the  

Evidence Act and the penal law.  

24. Consequently, we allow both the appeals and set aside  

the  order  of  conviction  and  sentence  passed  against  the  

appellants herein and acquit them giving them the benefit of  

doubt.  The  appellants  accused  shall  be  released  forthwith  

unless they are required in some other case and those who  

are on bail, their bail bonds shall stand discharged.

............................................J         [V.S. Sirpurkar]

   ............................................J

       [Dr. Mukundakam Sharma]

New Delhi May 7, 2010.

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