1. All accused persons were charged for commission of offences punishable under Sections 148, 302, 307, 324, 336, 427, 506 read with Section 149 or 120-B of Indian Penal Code and Section 135 read with Section 37 of the Bombay Police Act.
2. The learned Additional Sessions Judge convicted the Accused Nos.1, 2, 4, 6, 9, 10, 12, 13, 16 to 25, and 28 to 30 for commission of the offences charged and sentenced them as detailed below:-
For the offence punishable under Section/s :
[a] 302 read with Section 149, Indian Penal Code, for Life Imprisonment and a fine of Rs.2000/- each, in default, Simple Imprisonment for six months each.
[b] 307 read with Section 149 of Indian Penal Code, for Rigorous Imprisonment for five years and a fine of Rs.1,000/- each, in default, Simple Imprisonment for three months each.
[c] 324 read with Section 149 of Indian Penal Code, for Rigorous Imprisonment for six months each.
[d] 336 read with Section 149, Indian Penal Code, for Rigorous Imprisonment for one month each.
[e] 427 read with Section 149 of Indian Penal Code, for Rigorous Imprisonment for three months each.
[f] 506-II read with Section 149, Indian Penal Code, for Rigorous Imprisonment for three months each.
[g] 148 of Indian Penal Code for Rigorous Imprisonment for three months each.
3. Accused Nos. 1,2,4,6,9, 10, 12, 13, 16 to 25 and 28 to 30 are hereinafter referred to as convicted accused.
4. Appeal Nos. 176, 183, 189, 190, 191 all of 2010 are preferred by convicted accused. Appeal Nos. 261 and 578 both of 2010 are preferred respectively by the complainant and the State against the group of accused who have been acquitted.
5. Prosecution case as disclosed from the charge-sheet and charge as framed therefrom can be summarized as follows:-
[a] At village Badegaon in Saoner Taluka of Nagpur District, there were two rival groups who had contested the election to secure the reins of the Gram Panchayat.
[b] One group was led by family of Deshmukh and another by Choudhary. The former are the victims of offence and latter are the aggressors or accused persons.
[c] Election to the Gram Panchayat was held on 24th October, 2005, results were declared on 25th and the incident occurred on 26th between 8-00 p.m., and 9-00 p.m.
[d] Members of the group of accused persons hatched a conspiracy to eliminate leading members of Deshmukh family for taking revenge of their defeat in Gram Panchayat election and in furtherance of their common object, committed the murder of Ashok Deshmukh, and attempted to commit murder of Vilas Deshmukh, Vivek Deshmukh [PWs 9 and 8 respectively], assaulted Dinesh Deshmukh, Arun Deshmukh, Prafulla Deshmukh, Sau. Kalpana Deshmukh and Smt. Kausabai Choudhary [PWs 6,7,13, 10 and 11 respectively], pelted stones on the houses of Deorao Nakhale and Bhimrao Nakhale [PWs 12 and 16 respectively] and damaged the scooter of PW 4 Sushil Deshmukh.
[e] The incident has been witnessed by seven injured witnesses and four eye-witnesses.
6. Prosecution has examined in all twenty-six witnesses and defence has examined sixteen witnesses. Considering the tenor and tone of submissions, the aspect of rebuttal testimony through defence witnesses has not been emphasized, and need not be discussed in detail.
7. Prosecution evidence in the form of twenty-five witnesses can be classified as follows:-
[1] All eye-witnesses :
[a] Injured persons, namely PWs 6,7,8,9,10, 11 and 13 [Dinesh, Arun, Vivek, Vilas, Kalpana, Kausabai and Prafulla respectively].
[b] Those who are not injured, namely PWs 2,4,5 and 18 [Vijay, Sushil, Jagdish and Dilip respectively].
PW 17 is shown as a witnhess, however, is of no consequence.
[2] Other witnesses :
[a] PWs 15,19,22,23 and 24 [Dr. Shital, Dr. Anand, Dr. Chandrashekhar, Dr. Nitin, and Dr. P.G. Dikshit respectively] are the medical witnesses.
[b] PW 25 Suresh Gadekar is the Investigating Officer and PW 26 Milind Bansod is Executive Magistrate who has issued a Notification under Section 37.
[c] Panch and other witnesses.
8. The factual matter of death of Ashok Deshmukh and assault and injuries to all other accused are not in dispute. The injuries on the persons of Vilas and Vijay Deshmukh allegedly to be such that those would, as alleged, in ordinary course result in death and hence the cause of attempt to murder, are disputed by the defence. The medical aspect is, thus, substantially proved, though effect thereof is in dispute.
9. Since the finding as to homicidal death of Ashok Deshmukh is not in dispute, the worth of testimonies of PWs 15, 19, 22, 23 and 24 [Dr. Shital, Dr. Anand, Dr. Chandrashekhar, Dr. Nitin, and Dr. P.G. Dikshit respectively] is not under challenge as far as homicidal death of Ashok is concerned.
10. Medical evidence of PWs 15, 19, 22, and 23 [Dr. Shital, Dr. Anand, Dr. Chandrashekhar, and Dr. Nitin respectively] as regards attempt to murder PWs 6,7,8,9,10, 11 and 13 [Dinesh, Arun, Vivek, Vilas, Kalpana, Kausabai and Prafulla respectively], is debated as to the injuries being of such nature that those injuries ought in ordinary course cause the death of victims Vivek and Vilas.
11. After taking resume of evidence of each injured witness and eye-witness, learned Sessions Judge arrived at a conclusion against the convicted accused as seen in paragraph nos. 16 to 44 of the Judgment. For the sake of convenience, these findings can be referred by summarizing, which is done as follows:-
[a] Accused Nos. 4 Pandhari N. Khandal, 10 Vijay P. Thakre, 13 Kailas Bhoyar, 14 Ashok S. Pimparamule, 18 - Narayan Kothe, 19 Baban Karale, 20 Marotrao Gawande, 23 Chandrashekhar Khorgade, and 30 Dilip S. Chachane were identified to be present and participating in various acts of assault.
[b] The accused possessed, and have used deadly weapons, such as big size sticks and medium size sticks [ Ubharis and Zodpas etc.].
[c] The accused constituted unlawful assembly.
[d] The witnesses depose that the members of the unlawful assembly of accused persons proclaiming that they wanted to eliminate the main persons from Deshmukh family, because of the acrimony which they had due to defeat in the Panchayat election.
[e] Aspects, namely motive and intention, both were proved.
[f] The testimonies of the witnesses were adequate to prove the commission of offence charged and stood to the test of trustworthiness. The omissions relied upon by the defence were neither crucial or material, nor were omissions at all.
12. Heard all the parties the Advocates for appellants, learned APPs and learned Advocate for the complainant at length. Perused the record.
13. It shall be proper to see as to what are the submissions of the appellants. Resume thereof is as hereinafter.
14. According to appellants, there are various discrepancies in the testimonies of respective witnesses which submissions are summarized as follows:-
[1] Testimony of PW 6 Dinesh Uttamrao Deshmukh:
This witness has lodged First Information Report. He has deposed that he saw the accused persons beating Vilas Deshmukh in front of the house of Datta Gawande, and further deposed that he saw Rahul Kothe, Mukunda Gotmare and 25 to 30 persons beating Ashok Deshmukh.
There are material omissions in respect of assault by Dinkar Choudhary on this witness, and also regarding the names of Rahul Kothe and Mukund Gotmare beating Ashok Deshmukh by Ubharis. The testimony of this witness as an eye-witness loses significance as far as assault on Vilas and Ashok is concerned and, therefore, this testimony cannot be relied upon.
[2] PW 7 Arun Bhaurao Deshmukh is the brother of deceased. He names nine persons beating Vilas and ten persons beating Ashok, in his report lodged at 10-00 p.m., on the date of incident. In this statement, he does not name any specific accused who had beaten Vilas or Ashok. Though he mentions in his report the name of Ashok Dhote as the first person amongst assailants, in his testimony, Ashok Dhote is not named, he is not arrayed as an accused. There are material omissions in para 7 of his testimony. The statement of this witness was recorded belatedly, namely on 30th October, 2002. In view of this, he is most unreliable, and highly interested witness.
[3] PW 9 Vilas Deshmukh was allegedly assaulted, and due to injuries, he remained in the hospital for 20 days. Though this witness regained consciousness after 3-4 days, his statement was recorded after about 40 days, namely on 6th December, 2002. Police did not make any effort to record the Dying Declaration of this witness, for which no reason or explanation is offered by the Investigating Officer and hence this witness is unworthy of reliance. This witness has also criminal past.
[4] PW 2 Vijay Deorao Mankar:
He narrates the sequence of events, stating that he saw 15 accused persons assaulting Vilas, and Ashok Deshmukh already lying in a pool of blood, which means that Ashok was beaten first in point of time, which this witness did not see and lateron, Vilas was assaulted, whereas all the prosecution witnesses have stated that first Vilas was beaten and then Ashok came from bus stand and on noticing Ashok, the accused persons assaulted Ashok. Thus, there is a material contradiction in the most important sequence of events narrated in his testimony.
This witness has stated that he was amongst persons who had lifted the then injured Vilas and Ashok and put them in the police jeep, and claims that his clothes were smeared with blood when he lifted Ashok and Vilas and put them in the police jeep. Blood-stained clothes of this witness are not part of investigation and evidence. Therefore, the presence of this witness itself is doubtful. This witness is highly interested as he belongs to the group of Vijay Deshmukh.
[5] PW 4 Sushil Vijay Deshmukh, who is the nephew of deceased Ashok, states that he had told the police about the incident in detail on the very next day of the incident. Police did not record his statement. His statement is recorded on 29th , i.e., two days after the incident. There is no explanation as to why the police did not record the statement of this witness immediately, when he had narrated the entire details about the incident on the very next day. He alleges that Ashok was beaten by seven to eight persons and names six persons including one Nana Batte, whereas Nana Batte is not in the array of accused.
[6] PW 5 Jagdish B. Deshmukh states that he had gone to Hospital with injured Dinesh, Kausabai, Kalpana and Praful after the incident on the same day, i.e., on 27th October, 2002. He further states that they reached the Hospital at Nagpur, around 1.30 a.m. [nigh hours of 27th October, 2002] by a police jeep. Though this witness states that he along with Jeevan Bagde and Shankar Mankar tried to intervene when some of the accused were beating Ashok, Jeevan Bagde and Shankar Mankar were not examined.
There is delay in recording the statement of this witness by the police. Though, according to him, his clothes were blood stained. The police had seized his blood-stained clothes in the Hospital at Nagpur on 27th October, 2002 early morning. Moreover, statement of this witness is recorded on 30th October, 2002.
There are several material omissions in the testimony of this witness. Therefore, his testimony does not inspire confidence and he is not an eye-witness to the assault on Vilas or Ashok.
[7] PW 8 Vivek Deshmukh :
According to him, he was hospitalized at Nagpur Hospital for four days. Police did not make any efforts to record his statement immediately, which was recorded only on 2nd November, 2002, though he was fully conscious for all these days and had received minor injuries only. Testimony of this witness, therefore, becomes insignificant and doubtful as an eye-witness to the assault on Vilas and Ashok.
[8] PW 10 Kalpana Vijay Deshmukh:
She is the wife of Vijay Deshmukh, who was a prominent politician of the Sunil Kedar group. She claims to have witnessed the assault on Ashok. Police did not record her statement immediately, nor did she tell anything to the police till 29th October, 2010. Her testimony as an eye witness to the assault on Ashok does not correspond with the versions of [1] PW 1 Uttamrao Deshmukh, [2] PW 6 Dinesh, and [3] PW 11 Kausabai who is one of the injured. The testimony of PW 10 Kalpana does not inspire confidence.
[9] PW 11 Kausabai Ajabrao Chaudhary is claimed to be one of the injured. She was sent for medical examination as late as on 31st October, 2002 to Dr. Nitin Gosewade. Date of recording her statement by PW 25 Investigating Officer is not proved. At best, the statement of PW 11 Kausabai can be said to have been recorded on 2nd November, 2002 which is quite belated because he says that he had sent Kausabai for medical examination on 31st October, 2002. No explanation for delay in recording of her statement is given by the police.
PW 11 Kausabai names only six persons beating Vilas and the same six persons beating Ashok and categorically says that there were only six persons and not a crowd.
This witness does not depose about existence of the crowd, and rather confirms in the cross- examination that she did not see any other person except the six persons she had named in her Examination-in-Chief.
[10] PW 13 Praful U. Deshmukh, speaks of assault on himself by Mukund Gotmre Accused No. 25, Bandu Kothe Accused No. 24 and Surendra Khorgade Accused No. 22. He is not an eye- witness to the assault on Vilas or Ashok. He has given all evasive answers in the cross- examination. His testimony is of no consequence. Till 29th October, 2002 he did not give information to anybody or the police.
[11] PW 14 Ruprao Dajiba Pande, only generally says that persons amongst 25 to 30 were holding sticks and Ubharis and the persons in the crowd of 25 to 30 persons beat Ashok Deshmukh. The persons seen by this witness were only Mukesh Bhoyar and Murlidhar Bhoyar, Accused Nos. 17 and 5 respectively. He does not even speak of assault on Vilas. He speaks of some exhortations in Marathi. He admits in cross- examination that he was giving statement before the Court for the first time about the incident.
[12] PW 18 Dilip Daulatrao Chandekar:
This witness only speaks of certain accused persons being present in the mob of 25 to 30 persons who were beating Vilas Deshmukh and Ashok Deshmukh. He does not say that which of these 25 to 30 persons beat Ashok Deshmukh. He does not narrate as to identity of these 25 to 30 persons. The statement of this witness is recorded on 29th October, 2002, although he acted as a Panch of seizure of blood-stained earth, 5 Ubharis, scooter of Arun Dehsmukh, Wrist Watch, Chappals etc., lying on the spot and that Panchanama is at Exh. 245. He also speaks of video shooting on 27th October, 2002. He is Panch of alleged recoveries or arrests etc. There are material omissions in his testimony. Therefore, his testimony has no meaning.
[13] PW 6 Dinesh Uttamrao Deshmukh has stated in his deposition that Dinkar Chaudhary beat him by Ubhari. This is a material omission which has been proved at page 58 page 10 read with page 196 of evidence of Investigating Officer, Para 32. According to him, he was also beaten by Bhujang Chaudhary and Rahul Kothe, Surendra Khorgade, Mukesh Bhoyar, Yogesh Batte by means of Ubharis and fists and kick blows on his back and hip.
[14] Moreover, PW 6 Dinesh Deshmukh has only generally stated that so and so persons beat him. According to him six persons beat him by Ubharis, fists and kick blows. Which accused gave which blow on which part is not specified by him. In the FIR [Exh.139], he says that he was beaten by Dinkar Chaudhary, Surendra Khorgade and Mukesh Bhoyar. In his statement given to the police lateron, name of Dinkar Chaudhary is a material omission, whereas Bhujan Chaudhary is not named in the FIR lodged by himself. Therefore, the present appellants are out of realm of assault on Dinesh. Hence, no case is made out against Dinkar Chaudhary or Bhujang Chaudhary for assaulting PW 6 Dinesh.
[15] Common object to murder Vilas Dehsmukh cannot be inferred. There is no pre-meditation or prior concert to kill Vilas Deshmukh. It is not established that Vilas Deshmukh was the target. It is also not established that Ashok Deshmukh was the target. On the contrary, Ashok came from bus stand. It is not the case of any of the witnesses that the accused persons were searching for particularly Vilas Deshmukh or Ashok Deshmukh or particularly any person for that matter. Therefore, common object is completely ruled out.
[16] Hence common object to kill Ashok cannot be inferred. Similarly, common intention of some particular accused persons to kill Ashok is also not established.
[17] There is no cogent, reliable and clinching evidence against any of the accused/appellants on the point of assault on Vilas or Ashok. Hence, all 21 appellants deserve to be acquitted of the charges of murder of Ashok and attempt to murder Vilas.
The testimonies of the respective injured witnesses are unworthy of credit even their own individual injuries whatsoever. Therefore, the evidence of the injured witnesses will have to be discarded even on the point of injuries or assault on themselves or threat to them.
[18] In respect of assault on Kalpana, PW 1 Uttamrao at page 14 states that Dinkar Chaudhary, Accused No. 12, tried to give blow on his head by means of stick but it caused injury to the hand of Kalpanabai as she had kept her hand on his head, whereas PW 10 Kalpanabai at page 88 does not say that Dinkar Chaudhary was beating Uttamrao and that blow landed on her hand. Kalpanabai does not name Dinkar Chaudhary assaulting her. Kalpanabai names Sudhir Chaudhary, Bhujang Chaudhary, Surendra Khorgade, Rahul Khote, Dilip Chachane, Madhukar Nirgule and Mukunda Gotmare, i.e., 7 accused persons beating her on her left elbow, right hand and left wrist. Injuries on Kalpana are proved by Dr. Nitin Gosewade [PW 23] page 165 para 2. According to doctor, she had suffered two abrasions on right elbow and contusion over left elbow joint. In cross- examination she has admitted that abrasions and contusions are possible due to rubbing of skin on uneven surface and possibly by dash against stony surface.
[19] She also admits that no stick or weapon was produced before her for any query. She also says that the injuries on Kalpanabai are possible by fall on stony surface. Her statement was recorded on 29th although she was very much available and in injured condition. There is no reason as to why her statement was not recorded immediately. Therefore, a bald allegation of 7 accused persons beating her by sticks and Ubharies is not made out and is not commensurate with the injuries, as none of the injuries is by stick or Ubhari. Therefore, no case of assault on Kalpanabai is made out against Sudhir Chaudhary or Bhujan Chaudhary [Appellant Nos.1 and 9] or any accused out of the 21.
[20] There is no evidence against Mukunda Gotmare Accused No. 25 on the point of assault on any of the injured persons.
[21] Against Accused No.1 Sudhir Chaudhary, PW 8 Vivek N. Deshmukh has stated that eight accused persons who include Sudhir Chaudhary and Bhujang Chaudhary assaulted him from behind. There is nothing specific about the role of Sudhir Chaudhary or Bhujang Chaudhary.
[22] Submissions as to medical evidence are summarized as follows:-
Medical Evidence
[A] Injuries suffered by Vilas Bhaurao Deshmukh:-
[a] Lacerated wound right tempero parietal region 6 cms - Nature of injury simple.
[b] Contused Lacerated wound on occipital region 4 cm x 5 cm.
Opinion Head injury with small extra dural haematoma in left frontal region (not right).
According to Dr. Pakhmode these injuries are possible if the person tumbles from running in speed.
[B] Injuries on Dinesh Deshmukh are proved by PW 15 Dr. Sheetal Dadhe at page 123. At page 124, she has narrated the injuries on Dinesh Deshmukh which are as follows:-
(i) Blunt trauma over back, redness seen over intra-scapular region.
(ii) Blunt trauma over left lumbar region.
Both injuries were simple. I accordingly issued the certificate. The certificate now shown to me is the same. It is in my hand writing. It bears my signature. It is at Exh. 174.
Therefore, there are only two injuries, one on back and one on lumber region of PW 6 Dinesh Deshmukh. The doctor in cross-examination at para 12 at page 125 states that the injuries on Dinesh are possible by fall on stony surface. It has already come in the evidence that roads in the village are stony roads (PW 1 page 17).
[C] Dr. Pradip G. Dikshit, who conducted Post- mortem Examination on the dead body of deceased Ashok Deshmukh, states:-
It is true to say that the five injuries mentioned in Column No. 17 of the PM Report ware not corresponding to any of the injuries mentioned in Column No.19 of it. It is true to say that the deceased died due to injuries mentioned in Column No. 19.
Dr. Dikshit further says that:-
It is true to say that in case of stampede there may not be external injury to the head, but there may be internal injury. External injuries as per column No.17 are five in number and all are on the back. All are linear contused abrasions, suggestive of rail road type of pattern.
He, thus, opines that there was no common object or common intention to kill Ashok Bhaurao Deshmukh.
[D] As per Dr. Anand Gajbhiye [PW 11] at page 151, relevant page 152 of the paper book, the injured Vivek Nanaji Deshmukh had contusion on his left palm, size 8 x 2 cms. He had also abrasion on his left palm of the size 2x2 cm.
There are total 8 injuries. All are abrasion or lacerated wounds on elbow left and right knees and right parietal region and inter-parietal region. As per the doctor, injuries on Vivek are possible by fall on ground and hard surface. As per the injuries, there is no injury on the back, as has been deposed by him. All injuries are on front side indicative of having fallen on the ground while running away. None of the injury of PW 8 Vivek is by means of sticks or Ubharis. Therefore, in all probability, this witness PW 8 must have received the injuries on his palm and knees and elbows and parietal region because of falling on the ground while running. Hence, no case of assault is made out against the present appellants or any of them for assaulting PW 8 Vivek.
[23] Thrust of the defence is, thus, on arguing that the prosecution has failed to establish and prove a coherent picture of specific acts attributable to particular accused persons who have committed specific acts constituting commission of the offence charged, and in absence thereof, it would be impossible to convict either of the accused persons. The defence, thus, does not bank upon the defence witnesses, and claims total acquittal.
15. Learned Advocates on the appellants side have placed reliance on various judgments which are discussed herein below:-
A. Common object :
[a] Pandurang Chandrakant Mhatre & others v. State of Maharashtra [(2009) 10 SCC 773],
[b] Akabar Sheikh & others v. State of West Bengal [(2009) 7 SCC 415], and
[c] Allauddin Mian & others, Sharif Mian & another v. State of Bihar [AIR 1989 SC 1456].
Proposition :
For convicting any accused for offence punishable under Section 149 of Indian Penal Code, vicariously or constructively, for an act of unlawful assembly, proof of common object from the conduct of the accused persons distinct from the common intention is a condition precedent.
B. Re-assessment of evidence :
[a] Khima Vikamshi & others v. State of Gujarat [(2003) 9 SCC 420],
[b] Chandra Shekhar Bind & others v. State
of Bihar [AIR 2001 SC 4024],
[c] Ganesh Bhavan Patel & another v. State of Maharashtra [AIR 1979 SC 135], and [d] Rajat Ali v. The State of Assam [1977 Cri. L.J. 508].
Proposition :
While the golden rule of appreciation of evidence is the quality and not the number of witnesses, the practice coined in Masalti s case [AIR 1965 SC 202] is consistently followed. The rule of precedent as is emerging therefrom is that when an accused is being convicted for being liable as a member of an unlawful assembly for acts done by other members of the assembly, his pinpointed identification is imperative. Such identification has to be done on positive evidence and hence it is better to rely on two witnesses than one. This being the rule of prudence, the safer conclusion from the evidence is warranted. Benefit of doubt could essentially go in favour of the accused, whose identity as a member of an unlawful assembly comes in doubt.
C. Latitude in the matter of severest punishment for being a member of an unlawful assembly :
[1] Akabar Sheikh & others v. State of West Bengal [(2009) 7 SCC 415],
[2] Inspector of Police, Tamil Nadu v. Palanisamy alias Selvan [(2008) 14 SCC 495],
[3] Tamilselvan v. State represented by Inspector of Police, Tamil Nadu [(2008) 7 SCC 755],
[4] Chanda & others v. State of U.P. & another [(2004) 5 SCC 141],
[5] Allarkha K Mansuri State of Gujarat [(2002) 3 SCC 57],
[6] Kashi Rai & others v. State of Bihar [1994 Supp (1) SCC 551],
[7] Sherey & others v. State of U.P [1991 Supp (2) SCC 437],
[8] Dharam Pal v. State of Uttar Pradesh [1981 (Supp) SCC 20],
[9] State of Uttar Pradesh v. Ashok Kumar & another [(1979) 3 SCC 1],
[10] Masalti & others v. State of Uttar Pradesh [AIR 1965 SC 202],
[11] Dalip Singh v. State of Punjab [AIR 1953 SC 364], and
[12] Ankush Nivrutti Ghorpade & others v. State of Maharashtra [1997 (2) Mh.L.J. 42].
Proposition :
Whenever a member of an unlawful assembly is being convicted for severest of punishments, evidence of the fact that no specific graver overtact was attributed to him by the witnesses would weigh in his favour for a latitude in the matter of punishment. Hence, while conviction of the main accused may entail a capital punishment, it would not so occur in case of accused whose role was subsidiary and not concurrent with the overtact of the accused liable for severest of punishments.
16. Though certain judgments cited by learned Adv. Mr. H.D. Dangre, are placed on record, those are fact judgments , and do not lead to any precedent, and mostly because of this, he has not emphasized for relying on those judgments. Therefore, those judgments are not discussed.
17. Learned Adv. Mr. R.S. Kurhekar for the appellant in Criminal Appeal No. 261 of 2010 which is against acquittal filed by the complainant advanced submissions. 18. Learned APP Mr. D.B. Patel has also advanced submissions in appeal against acquittal of the State.
19. While on one hand, the effort of the defence - the group of convicted accused - is to claim total acquittal, even of apparently main assailants, putting a question mark on the witnesses including the injured witnesses as to their trustworthiness, the effort of the complainant and the State is to urge that the evidence as brought before the Court adequately involves all the accused charged and acquittal of either was not warranted.
20. It would not be of much use to threadbare deal with the factual submissions of these parties, since while dealing with the evidence of the witnesses, trustworthiness and worth of crucial witnesses will be given a serious thought.
21. With above indicated summary, it shall suffice to deal with the submission that none of the accused persons, who are acquitted, were so entitled.
22. Learned Adv. Mr. R.S. Kurhekar has placed reliance on various judgments. These are as follows:-
[a] Gunnana Pentayya @ Pentadu & others v. State of A.P.[2008 ALL MR (Cri) 2540 (SC)], [b] Mahmood & another v. State of U.P. [2008 ALL MR (Cri) 1121 (SC)],
[c] Arun Balkrishna Nirmal & others v. State of Maharashtra [2008 ALL MR (Cri) 426], [d] Chinappa Sayajee Fulmali & others v. State of Maharashtra [2006 ALL MR (Cri) 1713], [e] Janardhan Ragho Mhatre & others v. State of Maharashtra [1996 Cri. L.J. 4180].
While relying on these judgments, emphasis is on the doctrine of vicarious or constructive liability as emerging from Sections 141 to 149 and that once presence of the accused as members of an unlawful assembly, who had a common object, is proved, the punishment has to follow. The complainant and the prosecution both are bound by the submissions which were advanced in Trial Court, namely the facts of the present case do not stand to the test of rarest among rare cases and hence capital punishment is ruled out. They claim conviction of the acquitted accused and punishment as would be commensurate.
23. To substantiate her contention, Learned APP Mrs. Sangeeta Jachak has placed reliance on following Judgments:-
[1] Sikandar Singh & others v. State of Bihar [2010 AIR SCW 4426],
[2] Pandurang Chandrakant Mhatre & others v. State of Maharashtra [(2009) 10 SCC 773], [3] Saddik alias Lalo Gulam Hussein Shaikh & others v. State of Gujarat [2009 Cri. L.J. 1087], [4] Maranadu & another v. State by Inspector of Police, T.N.[2008 Cri. L.J. 4562],
[5] State of Karnataka v. Chikkahottappa @ Varade Gowda & others [2008 Cri. L.J. 3495], [6] Vikram & others v. State of Maharashtra [2007 Cri. L.J. 3193],
[7] Anil Kumar v. State of U.P. [AIR 2003 SC 1596], and
[8] Navganbhai Somabhai & others v. State of Gujarat [AIR 1994 SC 1187].
24. Perused these citations relied upon by larned Adv. Mr. Kurhekar and learned APP.
25. Judgment in the case of Pandurang Chandrakant Mhatre & others v. State of Maharashtra [cited supra] is relied upon by the prosecution as much as it is relied by the convicted accused persons. The thrust for reliance is on as to what constitutes common object and that it has to be inferred from the conduct of the accused persons as proved by the witnesses, since earlier meeting of minds and what was the state of mind of the accused persons will have to be inferred from the evidence only. The submissions of learned Additional Public Prosecutor are, thus, based on the settled law, and it would not be necessary to deal with each judgment threadbare.
26. This Court would now proceed to analyze the oral evidence.
27. Considering the length of testimonies and being guided by test of rule of prudence which this Court will have to apply, this Court gets guidance from the Masalti s case [AIR 1965 SC 202] and prefers most trustworthy evidence.
28. It would be useful to first analyze and separate testimonies of the witnesses inter se. 29. As indicated herein before, the prosecution evidence is divided into different categories first being of injured eye-witnesses and eye-witnesses without suffering any injury, second medical witnesses and third evidence of Police Officers.
30. The evidence relating to medical witnesses and of police officers is not under serious challenge. It shall, therefore, suffice to deal with the evidence of eye- witnesses. We, therefore, discuss the evidence as hereinafter.
31. Though the witnesses have been examined, considering sequence of events, the story of prosecution unfolds following sequence:-
[a] PW 6 Dinesh Deshmukh, PW 7 Arun Bhaurao Deshmukh, PW 8 Vivek Nanaji Deshmukh, PW 9 Vilas Bhauraoji Deshmukh, PW 10 Kalpana Vijayrao Deshmukh, PW 11 Kausalyabai Ajabrao Chaudhari, and PW 13 Praful Uttamrao Deshmukh are all injured witnesses.
[b] The eye-witnesses, who are not injured and who unfold the story in sequence, are PW 2 Vijay Deorao Mankar, PW 4 Sushil Vijay Deshmukh and PW 18 Dilip Daulatrao Chandekar. It would be useful to refer to the testimonies of these witnesses in the sequence indicated herein above.
32. PW 6 Dinesh Uttamrao Deshmukh deposed as to how the incident occurred at 9.30 p.m., on 26th October, 2005. Instead of narrating his testimony, it would be useful to refer to it by quoting the same ad verbatim, which reads as follows:-
1. ..................................... ...............The incident occurred on 26.10.2002. Incident occurred at about 9.30 p.m., in the night. I myself and my elder brother Prafulla Deshmukh were present at home. We heard shouts Maro Saleko Deshmukhako Khatam Karo from Gram Panchayat side. I came out of the house. I saw my cousin Vilas Deshmukh running towards the house of Datta Gawande. House of Vilas Deshmukh situates by the side of my house. At the same time I saw 25 to 30 persons going towards the house of Datta Gawande with big logs (Ubhari) in their hands from behind the house of Sunil Panjabrao Deshmukh. My brother Prafulla went towards the house of Datta Gawande to see what happened. I saw the persons beating Vilas Deshmukh by means of Ubharis in front of the house of Datta Gawande. On noticing my brother Prafulla Deshmukh, they also started beating Prafulla. My brother s wife Kalpana was also present with me at that time. Mukund Gotmare, Dnyaneshwar Batte, Dinkar Chaudhary, Bhujang Choudhary, Surendra Khorgade, Chandrashekhar Khorgade, Bandu Kothe, Ravindra Kothe, Rahul Kothe, Prafulla Kothe, Narayan Kothe were the persons amongst those who beat Vilas and Prafulla. The above persons are present in the court today. The witness has identified the above named persons in the court from amongst the accused persons present in the Court.
2. Thereafter the persons beating came in front of my house with sticks and Ubharis. The accused Mukund Gotmare pushed my brother s wife Kalpana and he dragged me down by holding my collar. Dinkar Chaudhary started beating me by means of Ubhari. The accused Rahul Kothe, Surendra Khorgade, Mukesh Bhoyar, Yogesh Batte and Bhujang Choudhary also beat me by means of Ubharis and fists and kick blows on my back and hip. The witness has identified accused Mukesh, Bhoyar and Yogesh Bhatte from amongst the accused persons present in the court. All those persons then returned towards the house of Datta Gawande.
3. Then Ashok Deshmukh came from Bus Stand side towards the house of Datta Gawande. Rahul Kothe, Mukund Gotmare and 25 to 30 persons beat Ashok Deshmukh by means of Ubharis. The accused present in the court were the said 25 to 30 persons who beat Ashok Deshmukh. Then those persons went towards the house of Deorao Nakhale saying that They had to kill Deorao Nakhale. Then Sanjay Chikhale, Balya Gawande and Sandip Deshmukh took me inside my house.
[Quoted from Page Nos. 52, 53, and 54 of the paper book of Criminal Appeal No. 176 of 2010 which consits of depositions only. Underlining is done to highlight the relevant and important portions.]
33. It can be seen from the testimony of PW 6- Dinesh Deshmukh that he refers to the following things:-
[a] Heard the shouts for assaulting to kill Deshmukhs.
[b] Use of Ubharias long sticks. [c] Having witnessed that the accused persons were assaulting PW 2 Vijay Deshmukh, PW 13 Prafulla Uttamrao Deshmukh and PW 10 Kalpana Vijay Deshmukh, he had identified:-
Accused No.25 Mukunda Gotmare, Accused No.15 Dnyaneshwar Batthe, Accused No.12 Dinkar Choudhary, Accused No.9 Bhujang Choudhary, Accused No.22 Surendra @ Suryashekhar Khorgade, Accused No.23 Chandrashekhar Khorgade, Accused No. 24 Bandu Kothe, Accused No.11 Ravindra Kothe, Accused No. 16 Rahul Kothe, Accused No. 29 Prafulla Kothe, Accused No.18 Narayan Kothe, Accused No. 17 Mukesh Bhoyar, and; Accused No. 21 Yogesh Batthe. [Total 13 accused persons].
34. Next injured eye-witness is PW 7 Arun Bhaurao Deshmukh. It is seen from his testimony that he reiterates the conduct of the accused and their utterances, the weapons they had, the assault they committed. It would amount to consuming unnecessary length either to describe or reproduce the testimony of this witness. It shall suffice to say that this witness had deposed about:-
[a] The utterances made by the unlawful assembly and its participants.
[b] The assault committed by them. [c] The weapons possessed by them. [d] Has identified:-
Accused No.6 Madhukar Nirgule,
Accused No. 11 Ravindra Kothe,
Accused No. 14 Ashok Pimparamule, Accused No. 19 Baban Karale,
Accused No. 13 Kailas Bhoyar,
Accused No. 30 Dilip Chachane, Accused No. 10 Vijay Thakre, and;
Accused No. 4 Pandhari Khandal. [Total eight accused].
35. Next injured witness is PW 8 Vivek Nanaji Deshmukh. In his testimony, this witness also supports the story and identified eight accused persons amongst the group of accused persons and corroborates the weapons held by them, namely Accused Nos. 1,5,9,16, 17, 22, 24 and 25.
36. Next injured witness is PW 9 Vilas Deshmukh. He also identified eight persons who assaulted Ashok Deshmukh and the weapons of assault, namely Accused Nos. 4,10, 13, 18, 19, 20, 23 and 30.
37. Other injured witnesses are PW 10 Kalpana, PW 11 Kausabai and PW 13 Prafulla. These witnesses also identify those who have assaulted them and the fact that these witnesses have witnessed the assault on PW 6 Dinesh Deshmukh and PW 7 Arun Deshmukh.
38. Other eye-witnesses, namely PW 2 Vijay Mankar, PW 4 Sushil Deshmukh, PW 5 Jagdish Deshmukh and PW 18 Dilip Chandekar have witnessed various parts of the incident, and have corroborated the testimonies of respective injured victim witnesses.
39. Considering the oral testimonies and even considering the golden rule or a rule of prudence, as to proof of fact of involvement of various accused persons, it would be safe to rely on the oral testimonies of injured eye-witnesses. First amongst those in sequence is PW 6 Dinesh Deshmukh and other injured witnesses are PWs 7, 8, 9, 10, 11 and 13 [Arun, Vivek, Vilas, Kalpana, Kausabai and Prafulla respectively].
40. As noted earlier, PW 6 Dinesh and PW 9 Vilas have suffered major injuries. Complexion of unlawful assembly appears to have varied after the assault on PW 8 Vivek occurred. Even if the evidence of other eye-witnesses, namely PWs 2,4,5 and 18 [Vijay Mankar, Sushil Deshmukh, Jagdish Deshmukh and Dilip Chandekar respectively], is assigned as much weight, as much the prosecution wants and the evidence of injured eye-witnesses grouped together, namely PWs 6,7,8,9,10, 11 and 13 [Dinesh Deshmukh, Arun Bhaurao Deshmukh, Vivek Nanaji Deshmukh, Vilas Bhauraoji Deshmukh, Kalpana Vijayrao Deshmukh, Kausalyabai A. Chaudhari and Praful Uttamrao Deshmukh respectively] is considered, they have, by common factor, undoubtedly identified following accused persons:-
[1] Accused no. 1 Sudhir Choudhari, [2] Accused No.2 Ramesh Ghagre, [3] Accused No.4 Pandhari Khandal, [4] Accused No.6 Madhukar Nirgule, [5] Accused No.9 Bhujangrao Choudhary, [6] Accused No.10 Vijay Thakre, [7] Accused No. 12 Dinkar Choudhary, [8] Accused No.13 Kailas Bhoyar, [9] Accused No. 16 Rahul Kothe, [10] Accused No. 17 Mukesh Bhoyar, [11] Accused No.18 Narayan Kothe, [12] Accused No. 19 Baban Karale, [13] Accused No. 20 Maroti Gawande, [14] Accused No. 21 Yogesh Batthe, [15] Accused No. 22 Surendra Khorgade, [16] Accused No. 23 Chandrashekhar Khorgade, [17] Accused No. 24 Bandu Kothe, [18] Accused No. 25 Mukanda Gotmare, [19] Accused No. 28 Lahanu Kothe, [20] Accused No. 29 Prafulla Kothe, and; [21] Accused No. 30 Dilip Chachane.
41. Defence has suggested that it was a case of stampede without explaining or suggesting as to how the stampede must have occurred. The fact of homicidal death and other injuries are not in dispute. The enmity between the parties and commotion are not in dispute. Doubt is sought to be created in relation to testimonies of prosecution witnesses who are said to have witnessed the incident and assisted PW 8 Vivek in going to the hospital, on the ground that his blood-stained clothes are not seized.
42. This Court would, therefore, prefer to exclude all these testimonies which have been criticized while considering proof of involvement of the accused, and yet would consider those if those could benefit the accused, still the accused persons, named in paragraph no. 40 foregoing are the persons whose presence as members of unlawful assembly who had gathered together with a common object is proved.
43. The common object of assembly is proved by testimonies of witnesses, namely PWs 2,4,5 and 18 [Vijay Mankar, Sushil Deshmukh, Jagdish Deshmukh and Dilip Chandekar respectively], who have deposed that the crowd started advancing with shouts for eliminating the members of Deshmukh family. Various utterances as proved by the witnesses prove the common object. The time of incident was not a day time where ordinarily persons would gather. The members of unlawful assembly, who were identified, had no other cause or business, such as being passersby, or who were casually standing by, yet could be said to have been mistaken with the unlawful assembly. Thus, the fact that the accused persons were members of unlawful assembly, whose presence is impeccably proved.
44. Now coming to what offences are attributable to the assembly, it would be necessary to see different offences committed by the members of unlawful assembly with reference to each injured person.
45. The foremost charge pertains to assault on Ashok who has lost his life. It would be useful to see the text of the Post-mortem Notes. While on one hand, the Post- mortem Notes are proved by the doctor who has not himself conducted the post-mortem examination, PW 19 Dr. P.G. Dikshit identifies the signature of Dr. Pande who has conducted the Post-mortem Examination. Dr. Pande s examination was not possible since he is not available being out of India. The Post-mortem Notes indicate injuries in Column Nos. 17, 18, 19 and 20 as follows:-
1. Linear contused abrasions transversely placed over the left side of back at the level of T10 Thoracic vertebral parallel to each other of length 25 cms each and 0.4 cms wide and separated by 2.5 cms intervening normal area, suggestive of Rail Road type of Patterned contused abrasions Reddish brown in colour.
2. Four cms below injury no.1, linear contused abrasions parallel to each other, transversely placed of length 12 cms each and 0.4 cms wide separated from each other by 2 cms of normal suggestive of Rail Road type of patterned contused abrasion, Reddish brown in colour. Total five injuries. A separate sheet is attached. Injuries in Column No. 17 continued.
3. Three cms below injury no.2, Linear contused abrasions parallel to each other, transversely placed over left side of back of length 10 cms x 0.3 cms each and separated by 2 cms area having 0.3 cms x 0.3 cms to 0.2 cms x 0.2 cms of multiple abrasions, suggestive of Rail Road type of patterned contused abrasion. Reddish brown in colour.
4. Linear contused abrasions obliquely placed over left scapular region directed from vertebral column to left shoulder of size 13 cms x 04 cms each and separated by area of 2.5 cms, Reddish brown in colour, suggestive of Rail Road type of patterned contused abrasion.
5. Linear contused abrasions obliquely placed over left arm, lateral aspect, of size 15 cms x 0.4 cms., each and Reddish brown in colour, separated from each other by 2.5 cms normal area.
Age of injuries Fresh injuries.
All the injuries are caused by hard and blunt weapon.
18. - None.
Yes. Ante-mortem.
19. Underscalp haematoma over both the parietal region in its posterior aspect vertex and whole of the occipital region.
1. Linear fracture in the left parietal bone of length 10 cms.
2. Depressed comminuted fracture in left tempero-parieto occipital region . Bone fractured into pieces.
3. Linear fracture in the right posterior cranial cavity of 8 cms.
4. C shaped linear fracture in the anterior cranial cavity extending on both
sides.
Meninges - Intact.
Brain Subdural haematoma over left cerebral hemisphere.
20. Subarachnoid haemorrhage over both cerebral hemispheres.
Intact congested.
Congested.
Mucosa congested.
Congested
Congested
Blood and blood cloths.
Nil.
[Quoted from Column Nos.17, 18 19 and 20 at page nos. 4, 4-A and 5 of the Post-mortem Report dated 27th October, 2002].
46. Cause of death concluded at the foot is Head Injury.
47. The injuries referred to in the Pot-mortem Report, which are external injuries, do correspond with the external injuries noticed by PW 15 Dr. Shital Dadhe. It is also noticed that internal injuries noted in the Post-mortem Examination do correspond with external injuries found during Post-mortem Examination. Thus, the cause of death disclosed in the Post-mortem Examination matches with the assault done by the accused persons, who are amongst the members of the unlawful assembly.
48. In so far as injuries on the persons of PW 8 - Vivek and PW 9 Vilas are concerned, those are proved by PW 15 Dr. Sheetal Dadhe as well as other doctors. While the prosecution has relied upon these injuries to be of such a nature that those would in ordinary course lead to death hence cause of attempt to murder, however, in the medical evidence, the doctors have not opined those injuries to be of such a nature that those would lead to death in ordinary course. No doubt, those injuries are in the nature of grievous hurt. The unlawful assembly, therefore, cannot be held guilty for offence punishable under Section 307 of India Penal Code, as far as assault on Vilas is concerned.
49. In so far as injuries caused to other injured witnesses are concerned, those are either hurts and grievous hurts.
50. The fact that the evidence brought by the prosecution, tested from any point of view and permutations and combinations leads to the conclusion that:-
[1] It was an unlawful assembly.
[2] It gathered after pre-conceived common object of eliminating the members of Deshmukh family and group.
[3] The assembly was equipped with deadly weapons, such as Ubharis, Zodpas etc.
[4] Unlawful assembly dealt a fatal assault on Ashok.
[5] Unlawful assembly dealt a violent and brutal assault on other injured witnesses, namely PWs 6,7,8,9,10, 11 and 13 [Dinesh Deshmukh, Arun Bhaurao Deshmukh, Vivek Nanaji Deshmukh, Vilas Bhauraoji Deshmukh, Kalpana Vijayrao Deshmukh, Kausalyabai A. Chaudhari and Praful Uttamrao Deshmukh respectively], and did stone pelting and damaged the houses of PW 12 Deorao Nakhale and PW 16 Bhimrao Nakhale, and damaged the scooter of PW 4 Sushil Deshmukh.
51. In so far as the omissions and contradictions urged and emphasized upon by learned Advocates for the appellants are concerned, this Court cannot be oblivious to the fact that it is a case of rowdy mob comprising of disgruntled group who has suffered the defeat in the election and the fever of local rivalry at village level rein and politics was still in its high. The situation, which prevailed on the scene of offence, cannot be expected to be of such a nature that the witnesses would capture it like a still photography, re-peruse it and reproduce before the Court with the precision and accuracy.
52. Moreover, undoubtedly, it is proved to be a group of about forty persons, out of which different persons joint and/or common in the acts of shouts, utterances and assault have been identified. The contradictions and omissions, therefore, are not of such a nature that these cannot separate the alleged untrue part of the version from the truthful part, which, in absence of failure to separate, would render entire version untrue.
53. It is well settled that the doctrine Falsus Uno falsus omnibus has no application in India. Witnesses on one hand do not have photogenic memory, at the same time, in view of the rivalry and enmical relations, there is a possibility of some exaggeration and variation, and such variation does not take away the truthfulness of part of the version which is proved by plural witnesses.
54. In case of present nature, where life of one person is lost and five other persons are assaulted, it would be wholly unjust to hold that the occurrence was a vis major and neither of the individual members of rival group were present. Corollary thereof would not entail randomly catching hold of the persons and holding them guilty. Therefore, rule of prudence as in vogue and in force since the judgment in the case of Masalti [AIR 1965 SC 202] alone guides the case.
55. The accused, who have been found guilty by this Court upon re-appreciation of evidence, are, thus, the group of persons who have been identified by more than one injured witness and there cannot be any other best form of evidence available.
56. In the result, this Court concurs with the finding of Trial Court, save and except the charge in relation to offence under Section 307 of Indian Penal Code. Conviction of the accused persons in relation to charge under Section 307 of Indian Penal Code is liable to be altered to Section 324 of Indian Penal Code. Rest of the conviction has to remain intact.
57. In relation to said conviction for offences under Sections 324 and 149 of Indian Penal Code, the sentence shall be three years. Amount of fine and default sentence shall remain the same.
58. This Court has considered the factual matters in the foregoing paras in detail. Corollary of discussion in the result deals with the appeals against acquittal. Since the evidence relied upon by this Court does not lead to proof of involvement of accused who are not convicted, the appeals against acquittal have no merit, and are liable to 51 be dismissed.
59. Appeal Nos.176, 183, 189, 190 and 191 all of 2010 are partly allowed to the extent of foregoing para nos. 56 and 57. Remaining conviction and sentence is upheld. Criminal Appeal Nos. 261 and 578 both of 2010 against acquittal are dismissed.