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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: BANDU @ PRADIP PUNDALIK & ORS. ETC.

DATE OF JUDGMENT:       11/12/1997

BENCH: G.T. NANAVATI, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                THE 11TH DAY OF DECEMBER, 1997 Present:               Hon’ble Mr.Justice G.T.Nanavati               Hon’ble Mr.Justice G.B.Pattanaik U.R. Lalit  and S.B.Wad,  Sr.Adv., Manoj Wad, Ashish wad and Mrs. J.S.Wad, Advs. with them for the appellant I.G.Shah and D.M.Nargolkar, Advs. for the Respondents.                       J U D G M E N T The following Judgment of the Court was delivered: with Crl.A.No. 1271 /1997 @ SLP (Crl) No. 411/90 Nanavati, J.      SLP  No.   411/90   :   Leave   granted.   Heard   with Crl.A.No.656/89.      This appeals  arise out  of the  judgment of the Bombay High Court in Crl.A.No. 16/87. The High Court partly allowed the appeal filed by the convicted Accused. Nos.8-10 from the under Section  302 read  with 149 IPC to Section 304 Part II read with  149 IPC.  Aggrieved by their acquittal, the State has filed Criminal Appeal No.656/86.      The prosecution  case  was  that  on  30.486,  sometime between 7.30 and 7.45 a.m, while PW 1 - Kamal and his father PW 2 - Shravan were proceeding on their motor cycle to their field and  were passing by the house of Accused No.1 - Bandu @ Pradip, A. 1 threw acid on them. As a result, both of them received,  burn   injuries.  Therefore,   indeed   of   them proceeding to the field, they went to the police station and lodged a  complaint against  A.1 and  other accused who were seen chasing  them with  weapons. It is also the prosecution case that soon thereafter A.1 along with A.2 to A.12 went to the house  of PW 2 - Shrawan, entered his house, dragged his two sons  - Anil  and Arvind  out and beat them mercilessly. Anil died  and  Arvind  received  serious  injuries.  PW  7- Surinder was  also assaulted  and he  had also  received one injury on  his ear. Part of his ear was cut completely. PW 6 - Ambadas who had rushed to that place seeing the assault on Anil and  Arvind, was  also beaten  by those accused, He was able to snatch away a sword from one of them and had wielded the same  in his  self defence. On these allegations, the 12 accused were tried for the offence punishable under Sections

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147, 148,  302 read  with 149, 120B of the Indian Penal Code and 25 of the Arms Act.      The  trial  court  did  not  find  sufficient  evidence against A.7 and A.12 and therefore acquitted them. All other were convicted  under Section 148 and Sections 302, 307, 324 and 326  all read  with Section 149 IPC. They were, however, acquitted for the offence punishable under Section 25 of the Arms Act.      The High  Court after  reappreciating the evidence held that  the  evidence  of  PWs  4,5,6  and  7  was  believable notwithstanding certain  infirmities in  their evidence  and the finding  recorded  by  the  trial  court  that  all  the convicted accused  except  Accused  No.  11  had  formed  an unlawful assembly and had assaulted deceased - Anil, Arvind, PW 6  and PW 7 in prosecution of their common object to beat them was  proper. The  High Court  did not  believe that the common object of the unlawful assemble was to cause death of Anil or  any other  person and, therefore, held that Accused Nos. 1-6  and Accused  Nos. 8-10  should be  convicted under Section 304  Part II IPC and not under Section 302 read with 146 IPC.  The  High  Court  did  not  believe  the  evidence regarding conspiracy and therefore acquitted all the accused of the  offence. They  were also  acquitted of the charge of having committed  the offence  punishable under  Section 307 read with 146 IPC.      Mr. Lalit  - learned counsel, appearing for the accused -  appellants   submitted  that  it  was  not  proud  beyond reasonable doubt  by the  prosecution that the acid throwing incident was  the first incident on that day and if that was not the  first  incident  then  the  genesis  of  the  whole incident becomes  doubtful and  this court  should hold that the prosecution  witnesses have  not given a true version as regard the manner in which the incident started on that day. We do  not find any substance in this contention. Apart from the evidence of PWs. 1 and 2, we have the evidence of PW 8 - Arun on  this point.  He is an independent witness as it was not even  suggested that  he was  in any  way related to the deceased to  PW 2  - Shravan.  He has  fully  supported  the prosecution case  that while  PWs. 1 and 2 were passing on a motor cycle, A.1 had thrown acid on them and that thereafter they were  chased  by  some  persons  who  were  armed  with weapons. Moreover,  the evidence  of PWs.1  and  2  is  also supported by the FIR which was lodged immediately by PW 1 at 8 O’clock.  It is true that the formal FIR was registered at 9.30 a.m.  but the  evidence of  the  Investigation  Officer shows that he had himself proceeded to hospital and recorded the complaint  of Kamal there. Thereafter, he had sent it to the police  station for registration where it was registered at about 9.30 a.m. PW 1 had lodged the complaint immediately after receiving  the  injury  and  therefore  there  was  no possibility of  any manipulation at the instance others. The panchnama with respect to the place in front of the house of A.1, also  supports the  version of PW 1 and 2 that acid was thrown from near the house of A.1.      If the  incident of  beating and  not acid throwing had taken place  first then  PWs 1  and 2, instead of rushing to police station for loading a complaint in that behalf, would not have  thought it  proper to go to their field. For these reasons, we  hold that  the High  Court was right in holding that acid throwing was the first incident.      It appears  to us  that the  accused finding that their attempt had failed, failed, rushed to the house of PWs 1 and 2 and  attacked those  who were  found inside the house. The evidence of  PWs 4,5,6,  and 7  clearly establishes that the accused went  there armed  with weapons,  entered the house,

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dragged out Anil and Arvind, also tried to drag out Surinder and assaulted  them thereafter.  Surinder was  successful in running away  from that  place after  receiving one blow. He stands corroborated  by the  find of  blood stain    in  his house. The  defence of  the accused was that While A.2, A.3, and A.4  were passing  by the  house of  PW 2 _ Shravan, the deceased -  Anil, Arvind and Surinder and others came out of their house armed with swords and attacked them. As a result of the  cries raised  by them,  A.8 came to their rescue and whatever injuries were caused to Anil and Arvind were caused by A.8  who had  welded his  sword  in  self  defence.  This version, in  our opinion,  was rightly  rejected by both the courts below. As many as 28 injuries were caused to deceased - Anil, 10 to PW 4 - Arvind, 6 to PW 6 - Ambadas and 1 to PW 7 -  Swaran. Thus,  in all  45 injuries were caused to those persons. A.8 alone could not have caused so many injuries to them.      It was  next contended that the finding recorded by the High Court  that the  accused had  entered the house of PW 2 and dragged  Anil and  Arvind out depends upon the testimony of  only   interested  witnesses   and   therefore   without independent corroboration  their evidence  should  not  have been accepted.      The incident had happened infront of the house of PW 2. No other explanation was given by the accused as to why they were found  near the house of PW 2 on that day at that time. The fact  that 45  injuries were  caused to April and others goes to  show that  many of  them  had  gone  with  weapons. Moreover, in views of the earlier attempt, which had failed, it was quite likely or probable that they had rushed to that place with  a view  to attack the other family members of PW 2. The  High Court  has considered the evidence of PWs 4.5.6 and 7  very closely  and  all  the  infirmities  which  were pointed out to us have been considered by the High Court. On proper appreciation  of their evidence, the High Court found it safe  to hold  that some  of the accused  had entered the house of  PW 2 and had dragged out Anil, Arvind and Surinder and thereafter  all had  beaten them.  We find that the view taken by  the High Court is reasonable and therefore it does not call  for any  interference by  this court.  The  appeal filed by them will have to be dismissed.      As regards  the common object of the unlawful assembly, the view  taken  by  the  High  Court  also  appears  to  be reasonable in  view of  the facts  of their  case.. Many had attacked  deceased   Anil  and  Arvind  and  therefore  many injuries  were   found  on  their  person.  The  prosecution evidence discloses  that the accused came there in different groups  and  from  different  directions.  Who  specifically attacked Anil  is also not established. It was therefore not possible to  say with  reasonable certainty  that the common object of  unlawful assembly  was to  cause death of Anil or any other person.      In view  of there  facts and circumstances of the case, we hold  that the  view taken  by the  High Court  is  quite reasonable, We, therefore, dismiss the State’s appeal.      Consequently, Crl.A.No. 411/90 is also dismissed.