Vinit Alias Baba and Others Etc. Vs. State of Maharashtra and Etc. Etc. - Court Judgment

Excerpt:
criminal - murder - sections 149, 150, 302 and 307 of indian penal code, 1860 - appeal challenging conviction and sentence for offence punishable under sections 149, 150, 302 and 307 - five accused assaulted deceased and another person with deadly weapons - magistrate recorded dying declaration of deceased - there was unlawful assembly - members of unlawful assembly assaulted two persons - these persons had no grudge against victims - they were instigated and encouraged to commit murder of deceased by accused nos. 1 and 4 - court affirmed conviction and sentence of all accused. - - both arrived at the bifurcation of road near about the well and the employment exchange office. as he was weak, he was advised rest for about three weeks. 9 large knife were recovered from the well situated in the premises of his house. 8. all the incriminating articles seized from the spot as well as from the accused, were sent to the chemical analyser and after investigation the charge sheet was filed in the court of chief judicial magistrate, amravati. similarly, according to ramu somani, he being very weak, was advised at least three weeks rest. from his evidence, it is also clear that as he was not feeling well even on the days of identification parade i. 19. the cogent, reliable and unimpeachable ocular testimony of ramu somani is duly corroborated by his deceased brother's dying declarations, discovery of weapons articles 7, 8, 9 and 20 at the instance of accused no. 3) supported the contention of the approver that pramod ingale was with other accused near the well. anil choudhary and others complained to ramkishore and gopal maharaj that ramprasad (accused no. ramkishore then told the accused that if they failed to execute the job, he will do away with them after his release from jail. however, they were unsuccessful. 10) stopped near the well situated near the employment exchange office. 9). thus in all six persons had assembled near the well. others were waiting near the well. five associates of anil choudhary who were sitting on the parapet of the well cited the signal given by anil choudhary and rushed towards the place of incident. the respective weapons which were used by the accused to assault ashok and ramu somani, were washed and dropped in the well situated in the premises of the house of anil dhote. 2 anil choudhary the approver is reliable. 163 the map placed on record that at the junction there is an electric pole from where the house of somani, as also from the well where other accused were seated on the parapit for the signal, are visible. (vi) according to anil choudhary, all the assailants-five in numbers carried their respective weapons to the house of anil dhote where they washed them and dropped them in the well situated in the premises of the house of anil dhote. at the instance of anil dhote, the weapons articles 7, 8 and 9 were recovered from the well. 4) has seen four persons sitting on the parapit of the well on 15-12-87. this is stated by approver too. out of four persons who were sitting on the parapit of the well, accused no. according to this witness he was struggling to start his moped near the well. shri deshpande, the special counsel for the state submitted that the prosecution led cogent, reliable and unimpeachable evidence to bring home the guilt against the accused gopal maharaj and ramprasad yadao. 31. shri hardas, the learned counsel further submitted that the prosecution has not produced the best available evidence regarding production of accused ramkishore in the court on 4-12-1987. according to shri hardas, the jamadar who was holding the rope that was fastened to the said handcuff, would have been the best witness to depose about the conversation. near the well has been established. according to the learned counsel, the best evidence would have been the production of the visitor's register from jail, wherein visitors used to sign and to examine the jail authorities to substantiate the visit of the approver-anil choudhary.b.u. wahane, j.1. criminal appeal no. 130 of 1989 is preferred by four accused viz. vinit alias baba s/o. suresh swami, anil s/o. motiram dhote, raju alias mithun s/o. hariram gahlot and pramod s/o. motiram ingale challenging the finding of conviction and sentence for the offences punishable under ss. 302 read with s. 149 of the indian penal code, alternatively under s. 302 read with s. 34 of the indian penal code and also under ss. 148, 307 read with s. 149 of the indian penal code, alternatively under s. 307 read with s. 34 of the indian penal code. a criminal appeal no. 218 of 1989 is preferred by the state against the acquittal of accused viz. gopal maharaj s/o. nandlal upadhyaya, ramkishore ramjatan yadao, ravindra s/o. bhimrao kalbande and ramprasad s/o. ramjatan yadao, for the offences punishable under ss. 302 read with ss. 109, 149, 107 and 150 of the indian penal code, and also for the offences punishable under ss. 148, 307 read with ss. 149, 107 and 150 of the indian penal code. similarly, the state preferred the criminal appeal no. 217 of 1989 for enhancement of punishment of the four accused against whom the conviction has been recorded by the learned trial judge. besides these appeals, victim ramkishore somani preferred two criminal revisions nos. 136 of 1989 and 137 of 1989. in all the appeals and revisions the findings recorded by the learned sessions judge, amravati in a sessions trial no. 63 of 1988 vide judgment and order d/- 27-2-1989, being challenged, all the appeals and revisions are decided by the common judgment. 2. according to the prosecution, ramkishore somani and his brother deceased ashok somani were dealing in the cloth business at amravati. ramkishore somani (p.w. 1) was an active worker of the congress (i) party. the accused no. 1 gopal maharaj was also initially with the congress party (i), but subsequently in 1986 he joined another political front known as 'amravati mahapalika sudhar samiti'. the victim ramkishore (ramu) somani and accused gopal maharaj were contenders for the office of municipal ward member. accused ramkishore yadao and accused ramprasad yadao were the real brothers and in league with accused gopal maharaj all other accused were their associates. 3. some time in the year 1987, deceased ramkishore was in jail as undertrial. the efforts were made for his release on bail. gopal maharaj created an impression that he was not released on bail because ramu somani. on 4-12-1987, gopal maharaj, ramprasad and other accused had been to the court premises to see ramkishore. gopal maharaj speculated that ramkishore (ramu) somani is bringing obstacle in getting bail. accused ramkishore yadao therefore, got enraged and he advised other accused persons to eliminate ramu somani from the scene. ramkishore was informed that ramu somani used to move in the locality with the bodyguards and, therefore, ramkishore advised his associates to eliminate those bodyguards too. similarly, there was another meeting on 10-12-1987 and again on 12-12-1987 in the court premises where the accused met the undertrial prisoner ramkishore. according to the prosecution, ramkishore and his brother ramprasad both instigated other companies viz. vinit alias baba, anil motiram dhote, raju gahlot, pramod ingale. ravindra kalbande and rajendra khandare to eliminate ramu somani and promised them that they will look after their bail in case the occasion arises. 4. pursuant to this, other accused went in search of ramu somani. ultimately on 15-12-1987, six accused, viz. vinit alias baba, anil dhote, raju gahlot, pramod ingale, approver anil choudhary and rajendra khandare could locate ramu somani. on that day at about 4.00 or 4.15 p.m. all the six accused assembled near the employment exchange office. they directed anil choudhary (p.w. 2) an approver to wait at a chowk to see ramu somani. at about 4 or 4.15 p.m. anil found deceased ashok somani and victim ramu (ramkishore) somani coming out of their house on a scooter. ashok somani was driving the scooter while ramu was a pillion rider. both arrived at the bifurcation of road near about the well and the employment exchange office. all the accused obstructed them. five accused assaulted ramu somani and his brother ashok with their respective deadly weapons and fled from the scene of offence. 5. injured ramu somani and ashok somani were removed to irwin hospital, amravati in a rickshaw. both were in a serious condition. however, they were found conscious and in a fit condition to give their statements. shri pathak (p.w. 16) the special judicial magistrate recorded the dying declaration of ashok somani vide exh. 120 and of ramu somani's vide exh. 52. ashok somani succumbed to his injuries on the very day at about 11.00 p.m. 6. initially, the police registered the offence under s. 307 read with s. 34 of the indian penal code. after the death of ashok somani, s. 302 was added. ramu somani was treated at irwin hospital, amravati till 23-12-1987 and subsequently he was referred to bombay hospital, bombay. he was treated in the bombay hospital, bombay till 16-1-1988. he returned back on 17th january, 1988 to amravati. as he was weak, he was advised rest for about three weeks. 7. all the accused were arrested on different dates. accused gopal maharaj was arrested on 22-2-88. accused no. 2 ramkishore yadao was arrested on 18-12-1987. accused no. 3 ravindra was arrested on 19-12-87. accused no. 4 ramprasad and accused no. 5 vinit were arrested on 19-12-87. accused no. 6 anil dhote was arrested on 17-12-87. accused no. 7 raju was arrested on 19-12-87. accused no. 8 anil choudhary (approver) was arrested on 17-12-87. accused no. 9 rajendra was arrested on 17-12-87 and accused no. 10 pramod ingale was arrested on 18-12-1987. at the instance of accused no. 6 anil dhote article no. 7 a big knife, article no. 8 rampuri knife and article no. 9 large knife were recovered from the well situated in the premises of his house. to this effect, the memorandum exh. 103 and seizure memo exh. 104 were prepared. the discovery statement was made on 18-12-87. similarly, at the instance of accused raju gahlot article 20 katiyar was discovered from his house. 8. all the incriminating articles seized from the spot as well as from the accused, were sent to the chemical analyser and after investigation the charge sheet was filed in the court of chief judicial magistrate, amravati. 9. the original accused no. 8 anil choudhary presented an application before the chief judicial magistrate, amravati on 13-1-1988 seeking pardon and declaring him an approver. his confessional statement was recorded vide exh. 59. the learned chief judicial magistrate, amravati thereafter passed an order on 11-3-1988 granting pardon and declaring anil choudhary as an approver. 10. the prosecution case for convenient can be divided in two parts. first part in respect of the actual assault on ramu somani and his brother deceased ashok somani which has been deposed by ramu somani and second part as deposed by anil choudhary an approver and other circumstances indicating events earlier to actual assault. 11. both the injured brothers were removed to irwin hospital, amravati. dr. vilhekar found the following injuries on the person of ramkishore somani. 1. incised wound over sub-mental region, bone deep size 3' x 1/2' by done deep. 2. incised wound just below the injury no. 1 size 3' x 1/2' x 1/8'. 3. incised wound over front of the chest, size 4' x 1/2' depth could not be measured because injury was on the chest and due to fear of further damage to the underneath structures. 4. incised wound over front of the chest below injury no. 3. size 4' x 1/2' depth could not be ascertained due to aforesaid reasons. aforesaid injuries nos. 3 and 4 were on the left side of the strnum. 5. incised would over just below right mammary region, size 2' x 1/4' depth could not be measured for the aforesaid reasons. 6. incised wound over the infrascapular region on right side. it was on the right back side below scapula, size 2' x 1/2' depth not measured for the aforesaid reason. 7. incised wound on infrascapular region on right side. size 2' x 1/4' depth could not be measured for the aforesaid reason. 8. incised wound over sub-coastal region, size 2' x 1/2' depth could not be measured for the aforesaid reason. it was on right side. 12. dr. vilhekar found the following injuries on the person of ashok somani. 1. incised wound over left infra-axillaries region, posteriorly, size 2' x 1/2' - depth could not be measured because fear of further damage to the internal organs. 2. incised wound over xiphisternum region omentum was coming out from the wound. size 2' in length. the depth and breadth could not be measured because omentum was coming out and there was danger of damage to the internal organ while attempting depth. 3. incised wound 2' lateral to the right mammary region. size 2' x 1/2' - depth could not be measured due to fear of further damage to the internal organs. 4. incised wound over back on right side at the level of 8th rib in mid scapular line, size 1' x 1/2' - depth could not be measured due to aforesaid reason. the injuries which were noticed on the person of ramu somani and ashok somani were bleeding injuries and fresh. injuries were caused within half an hour prior to their examination. according to doctor all the injuries found on the person of ashok and ramu were caused by sharp cutting pointed instruments. these injuries were sufficient to cause death in the ordinary course of nature. 13. ramkishore (ramu) somani identified anil dhote (original accused no. 6), raju gahlot (original accused no. 7), vinit alias baba swami (original accused no. 5) and anil choudhary (original accused no. 8) in the test identification parade held on 25-1-1988. similarly, ramkishore somani identified vinit alias baba, anil dhote, raju gahlot and approver anil in the court. 14. the defence of all the accused is of total denial and false involvement. according to accused no. 6 anil dhote, he was shown to identifying witnesses before the identification parade. accused no. 5 baba swami stated that on 15-12-1987 at about 7.00 p.m. while he was causally standing near a pan shop, some persons had started assault on yadao who was standing nearby. the assailants mistook him as one of the associates of yadao and started attacking him by means of knives. in order to ward off the blow, he held the knife firmly and thereby sustained injuries to his finger. his mother took him to nearby dispensary and later on he went to bombay for treatment. according to accused no. 6 anil dhote, he received injury due to tin sheet about 6 or 7 days prior to his examination by the doctor. 15. the learned sessions judge, amravati after scrutinising the evidence and defence found only four appellants/accused who preferred the criminal appeal no. 130/89 viz. vinit alias baba suresh swami, anil motiram dhote, raju alias mithun s/o. hariram gahlot and pramod motiram ingale, guilty for the offence punishable under ss. 302 read with s. 149 of the indian penal code alternatively under s. 302 read with s. 34 of the indian penal code and they were sentenced to suffer imprisonment for life any to pay a fine of rs. 2,000/- each one, in default to suffer rigorous imprisonment for six months. these four accused were also convicted for the offence punishable under s. 148 of the indian penal code and were sentenced to suffer rigorous imprisonment for one year and to pay a fine of rs. 1,000/- each, in default to suffer rigorous imprisonment for three months. further all these four accused/appellants are also found guilty for the offence punishable under s. 307 read with s. 149 of the indian penal code, alternatively under s. 307 read with s. 34 of the indian penal code, in respect of injuries to p.w. 1 ramu somani and they were sentenced to suffer rigorous imprisonment for five years and to pay a fine of rs. 2,000/- each, in default to suffer rigorous imprisonment for six months. the original accused no. 1 gopal maharaj nandlal upadhyaya, accused no. 2 ramkishore ramajatan yadao, accused no. 3 ravindra bhimrao kalbande, accused no. 4 ramprasad ramajatan yadao and accused no. 9 rajendra shankarrao khandare were acquitted of the charges framed against them. 16. smt. sirpurkar, the learned counsel for the appellants/accused, submitted that the appellants/accused had absolutely no motive to commit the offence. according to her, ramu somani had very brief opportunity to see the assailants and in the state of mind in which he was then at the time of attack, it was not possible for him to memories the faces of the assailants so as to enable him to identify the assailants either in the test identification parade or in the court. similarly, it is submitted that there is material discrepancy in the evidence of ramu somani and the approver. ramu somani specifically stated that he and his deceased brother ashok somani were assaulted by four persons only. on the contrary, according to the approver, initially six persons were assembled near the employment exchange office. however, five persons remained there, and only five persons assaulted including himself to ramu somani and ashok somani. this being a material discrepancy, the evidence of ramu somani deserves to be outrightly rejected. we will discuss the aspect subsequently at the appropriate stage. however, nothing has been brought to our notice from any material to discredit the testimony of ramu somani. no reasons have been ascribed or indicated as to why the victims would falsely involve these accused and approver. 17. it is further submitted that there are various infirmities in holding the test identification parade. similarly, there being delay in holding the identification parade, the possibility of showing the accused persons to ramu somani and other identifying witnesses cannot be ruled out. under the circumstances, no weight be given to the identification. however, no circumstance or infirmity has been brought on record to discard the testimony of the identifying witnesses and executive magistrate. shri madhukar naik, the special judicial magistrate (p.w. 14) has conducted the identification parade. it is to be noted that ramu somani was in a serious condition in irwin hospital, amravati, where he was treated till 23-12-1987 and thereafter he was shifted to bombay hospital, bombay where he was admitted and treated till 16-1-1988. he returned on 17-1-88 to amravati. similarly, according to ramu somani, he being very weak, was advised at least three weeks rest. from his evidence, it is also clear that as he was not feeling well even on the days of identification parade i.e. on 25-1-88 and 27-1-88 he was given a chair to sit in the separate room. no circumstance has been brought on record to show that during the period from 17th to 25th and 27th january, 1988, the accused were shown to ramu shomani or he had a chance to see the accused. therefore, there is no merit in the submission of the learned counsel for the appellants. 18. it is contended by the learned counsel for the appellants that as p.w. 1 ramu somani was not in a position to tell the exact number of assailants, it is a definite indication that he was not quite attentive to mark the faces of the assailants and was all the while struggling to protect himself. in this respect, it may be mentioned that the attack was in a broad day light. it means there was sufficient light to see the faces of the assailants. according to ramu somani, the assailants gave a signal to stop the vehicle. consequently, the speed of the vehicle was lowered down and the vehicle was stopped. one of the assailants held the handle while others were on the other side of the scooter. all the assailants assaulted them with their respective weapons. thus, it is crystal clear that they were quite close to the victims. it means that ramu somani had opportunity to see the faces of the assailants very closely. there may be feeling of fear and in the state of self protection, there would be always present an element of retaliation in vengence. in that situation, the victim would not forget the faces of his and his brother's assailants. on the contrary, the features would be engrafted in mind. we do not find any reason to discard the testimony of ramu somani in respect of four assailants i.e. vinit alias baba swami (original accused no. 5), anil motiram dhote (original accused no. 6), raju alias mithun hariram gahlot (original accused no. 7) and anil choudhari (approver). in view of this trustworthy direct evidence, motive is irrelevant. 19. the cogent, reliable and unimpeachable ocular testimony of ramu somani is duly corroborated by his deceased brother's dying declarations, discovery of weapons articles 7, 8, 9 and 20 at the instance of accused no. 6 anil dhote and accused no. 7 raju gahlot. doctor examined the weapons seized and opined that injuries noticed on the persons of deceased ashok and ramu somani could be caused by these weapons. the testimony of anil choudhary - approver is in consonance with the ocular testimony of ramu somani and other circumstantial evidence produced by the prosecution. 19a. regarding the presence of pramod ingale (accused no. 10), smt. sirpurkar, the learned counsel for the appellants/accused argued that as there is a discrepancy between the evidence of ramu somani and dying declaration of ashok somani and evidence of the approver, no reliance be placed on the evidence of anil choudhary. no doubt, according to ramu somani and also dying declaration of his brother ashok, they specified that they were attacked by four persons. however, the evidence of the approver is that pramod ingale (accused no. 10) was also with them and he too participated in the assault. sudhir (p.w. 3) supported the contention of the approver that pramod ingale was with other accused near the well. the learned trial judge has discussed the aspect about the number of assailants and gave cogent reasons that ramu somani being under the stress and strain, he was not supposed to count the exact number of the assailants. his reference about four persons as assailants does not bring discredit to his own version. moreover, it does not contradict the version of the approver. according to us, the prosecution has proved beyond doubt that the accused no. 10 pramod ingale was also along with the accused nos. 5, 6, 7 and the approver. therefore, there was an unlawful assembly at the time of assault. 20. now we propose to deal with the second part i.e. the evidence of anil choudhary - approver (p.w. 2). according to anil choudhary (approver) he was initially introduced with the accused number 6 anil dhote who was his neighbour. while in the company of anil, he came in contact with vinit alias baba swami the original accused no. 5. subsequently, he was introduced with the ramkishore yadao (original accused no. 2), then with ravindra (original accused no. 3) and so on. anil choudhary specifically deposed that on 4-12-87 he alongwith others had gone to the court premises to see the accused no. 2 ramkishore who was in police custody. in the court premises itself anil was introduced with the accused gopal maharaj. according to him, there was a conversation between the accused gopal maharaj and accused ramkishore. gopal maharaj informed ramkishore that he could not obtain the bail because of hindrance created by ramu somani. on this accused ramkishore was enraged. he thereupon advised to accused vinit alias baba, anil dhote and the approver that ramu somani should be eliminated. accused gopal maharaj assured to provide money for bail in the event of their arrest after execution of the job of killing ramu somani. thereafter, all left the court premises and he, accused anil dhote and accused vinit alias baba went to the shop of ramu somani to locate him. however, they could not locate him. again on 10-12-1987, accused no. 2 ramkishore was brought in the court. on that day too, he i.e. anil choudhary, accused no. 5 vinit alias baba, accused raju had been to the court to see accused ramkishore. accused no. 4 ramprasad the brother of accused ramkishore was present at that time. at that time too accused no. 1 gopal maharaj and accused no. 2 ramkishore persisted these accused to kill ramu somani. accused no. 4 ramprasad stated that to avoid any suspicion he would manage to go behind the bars. 20a. on 11-12-1987, accused no. 4 ramprasad took the benefit of the festival known as 'dahi handa' of gadge maharaj, misbehaved under the influence of liquor and picked up the quarrel. a complaint was lodged against him by one vilash and the accused no. 4 ramprasad was arrested by police. exh. 234 has been placed on record to show that the complaint was lodged against the accused no. 4 ramprasad, on 12-12-1987, anil choudhary-approver, accused vinit alias baba, accused anil dhote, accused raju gahlot, accused pramod ingale and sudhir pohakar (p.w. 2) had been to the court premises to see ramkishore (original accused no. 2) and his brother ramprasad (original accused no. 4) gopal maharaj was also present there. anil choudhary and others complained to ramkishore and gopal maharaj that ramprasad (accused no. 4) had abused them. ramkishore then told the accused that if they failed to execute the job, he will do away with them after his release from jail. consequently, as instigated or induced by the accused gopal maharaj, accused ramkishore and accused ramprasad, four accused viz. vinit alias baba, raju gahlot, anil dhote and anil choudhary-approver made efforts on 12th and 13th december 1987 to locate ramu somani. however, they were unsuccessful. 21. on 15-12-1987 at about 10.30 or 11.00 a.m. while anil choudhary was in the school, sudhir (p.w. 3), anil dhote, raju gahlot, anil dhote went to his school. they wanted that anil choudhary should accompany them. however, teacher did not allow him to leave the school and, therefore, he could not immediately leave the school. all the persons named above were waiting for him in the nearby canteen. after the period was over at about 11.30 a.m., anil met other accused named above in the canteen. he sent his books to his home with sudhir (p.w. 3). except sudhir, all went to duffarin square in search of ramu somani. at about 12.30 noon, anil choudhary and anil dhote went home for lunch. after sometime sudhir pohakar went to their houses and informed that they are called at duffarin square. anil choudhary took the bicycle from the house of anil dhote and went to duffarin square. at duffarin square he met with pramod ingale, raju gahlot, anil dhote and vinit alias baba swami. all waited there in order to execute the job entrusted to them. they saw that ramu somani was returning home in a cycle rickshaw at about 1.30 or 2.00 p.m. all followed the cycle-rickshaw but they could not intercept ramu somani. anil choudhary (p.w. 2), anil dhote (a. no. 6), raju gahlot (accused no. 7), vinit alias baba (accused no. 5), pramod ingale (accused no. 10) stopped near the well situated near the employment exchange office. at about 2.30 or 3 p.m. anil dhote went to the office of employment exchange to call ravi kalbande (accused no. 3). anil dhote returned back alone and informed other companions that ravi is unable to leave the office as his boss is present. however, vinit alias baba brought one rajendra khandare (accused no. 9). thus in all six persons had assembled near the well. anil choudhary was directed to sit near the electric pole from where he can keep watch on ramu somani. others were waiting near the well. anil choudhary was instructed to give a call and signal as soon as he would notice ramu somani. at about 4.00 p.m., anil choudhary noticed that ramu somani and one another are coming on scooter. his companions were hardly at the distance of about 40 ft. five associates of anil choudhary who were sitting on the parapet of the well cited the signal given by anil choudhary and rushed towards the place of incident. on the signal given by the accused, the scooter was stopped. according to anil choudhary, all the accused took out their weapons and assaulted ashok somani and his brother ramu somani. vinit alias baba gave first blow on ashok somani, vinit alias baba had a large knife. pramod ingale and raju gahlot dealt blow with katiyar. anil choudhary had a knife. anil dhote had a razor and pramod ingale hunter's knife. all the accused dealt blows with their respective weapons on ashok and ramu somani. both fell from the scooter. even then accused attacked them. when vinit alias baba tried to inflict a second blow on the stomach on ramu somani, he could not do so because the blade of the knife was loosened and tilted. he tried to adjust the blade. in that process his figures were cut. thereafter, accused rushed towards irwin chowk. according to anil choudhary, raju khandare who had accompanied with baba swami, fled away by informing them that he is leaving the place to fetch cigarette. according to him, raju khandare was not amongst the assailants. he was standing at the distance of about 10 ft. from the accused. the injured were removed to irwin hospital, amravati where they were admitted and treated. 22. all the accused including anil choudhary went to the house of anil dhote. there vinit alias baba changed his pant and put on the pant of manoj dhote. the respective weapons which were used by the accused to assault ashok and ramu somani, were washed and dropped in the well situated in the premises of the house of anil dhote. pramod ingale left the house of anil dhote informing them that he is going to his native place. remaining four decided to go to akola. the accused sent sudhir pohakar (p.w. 3) to the house of accused no. 4 ramprasad to bring about rs. 150/- or rs. 200/- to meet expenses as they wanted to go to akola. sudhir pohakar had gone to the house of ramprasad (accused no. 4) and demanded money as directed by the accused persons. ramprasad (accused no. 4) had no sufficient amount as demanded. he paid rs. 40/- to sudhir pohakar. sudhir pohakar gave that amount to anil dhote. as they could not get the truck to go to akola, they went to their respective houses. 23. according to anil choudhary, the weapons used by them were supplied by ramprasad yadao (accused no. 4). according to him, during assault on deceased ashok and ramu somani, he himself received injuries. 24. smt. sirpurkar, the learned counsel for the appellants/accused has criticized the evidence of anil choudhary as an approver, being interested and tainted. no reliance can be placed without any corroboration on material aspects. according to the learned counsel, there is no corroboration to the testimony of the approver. the learned trial judge, committed an error in placing reliance on the evidence of approver. 25. it needs a mention that the whole object of tendering pardon is to enable the state to obtain evidence which is otherwise shut out and, thus, enable it to bring the rest and real offender/offenders behind the crime to justice. the object cannot be achieved unless 'the full and true disclosure is used as evidence at the trial'. therefore, the law makes an approver's evidence admissible. the law is conscious of the fact that a participator in a crime is not a person who is worthy of credit. he is a tainted witness and he comes into the witness box without unblemished conduct. but, the law realises that there are certain offences which could never be proved unless the evidence of an approver was made available. therefore, the policy underlying the provisions of the law that an accomplice is a competent witness against co-participators in the crime. the evidence of an accomplice being that of an interested witness or tainted one, caution requires that there should be corroboration from an independent source in some material aspect not only commission of crime but also his involvement in it, before its acceptance. however, it is not necessary to expect corroboration on all the circumstances of the case or every details of the crime. it would be sufficient to have corroboration as to material circumstance of the crime and of the identity of the accused in relation of the crime. the learned trial judge has discussed the principles in respect of the approver's evidence in paras 22 to 26 and discussed the approver's evidence elaborately in paras 27 to 47 of the judgment. ultimately, considering the evidence of p.w. 2 anil choudhary from various angles, the learned trial judge concluded that the testimony of p.w. 2 anil choudhary the approver is reliable. the various circumstances find corroboration with the evidence of the approver. though discussed by the learned trial judge, they are, in nutshell, as follows; (i) according to anil choudhary, he and other accused went near the employment exchange office. accused sent approver anil choudhary to the place from where he could notice ramu somani and in a position to give the signal to them. the place where anil choudhary was standing is a junction nearby having electric pole post. it is clear from exh. 163 the map placed on record that at the junction there is an electric pole from where the house of somani, as also from the well where other accused were seated on the parapit for the signal, are visible. (ii) at the time of assault, anil choudhary received injury. similarly, anil dhote and vinit alias baba also received injuries on their person. all had bleeding injuries. on 15-12-1987 at about 7 or 8 p.m. dr. rajendra deshmukh (p.w. 21) examined vinit alias baba in his dispensary and found his fingers injured. injuries were quite deep and needed expert's treatment. he was advised vinit alias baba to go to bombay to dr. joshi. however, he gave him preliminary treatment and advised him to go to bombay. according to doctor rajendra, the injuries were caused within 3 to 4 hours from his examination. dr. aditya kaushik (p.w. 25) from bombay deposed that baba was admitted in the hospital. on examination he found injuries to all four fingers except the thumb. the injuries noticed by him were as follows : 1) incised wound to index finger over dorsal lateral aspect causing injury to extensor tendon and also fracture of proximal phalanx. 2) incised injury to middle finger volar aspect of middle segment causing injury to profound tendon, partial injury to sublimis tendon and also to radial digital nerve. 3) incised injury to ring finger volar aspect, middle segment, causing injury to profound and sublimis tendons. 4) incised wound to little finger over proximal segment volar aspect causing injury to profound and sublimis. similarly, dr. kaushik has taken the photographs of the injured palm. it is at exh. 146. there is no dispute on the side of the accused no. 5 vinit alias baba that he had sustained such injuries. however, according to him on 15-12-1987 at about 7 p.m. while he was standing near the pan shop, a stranger started attack on him thinking that he is yadao and he received the injuries while he held the blade of the knife. it needs a mention here that vinit alias baba is a son of police inspector who was then attached to the police station, amravati. if really some unknown person attacked his son vinit, the police inspector would have definitely registered the offence against the unknown person and would have started the wheels of investigation. however, no report lodged by the accused no. 5 vinit alias baba. the copy of sanad diary was placed on record vide exh. 82, shows that on 15-12-1987 at about 7.15 p.m. one siraj had attacked one raju yadao with knife and caused him grievous injuries. this entry in any way does not connect with the assault and the injuries received by the accused no. 5 vinit alias baba. thus, the false defence raised by accused vinit alias baba speaks about his involvement in the crime charged. (iii) anil choudhary (p.w. 2) was examined by doctor ismail chauhan on 18-12-87. on examination the following injuries were found on his person. 1) incised injury 1/2' superficial on the bottom of right index finger. 2) linear incised injury 1/4' in length no depth, no breadth, on the upper tip of right little finger. according to doctor these injuries were about 2 1/2 days old. this tallies with the time of incident. anil choudhary specifically deposed in para 12 of his deposition that he sustained injuries due to his own knife while assaulting ramu somani and his brother deceased ashok. (iv) accused no. 6 anil dhote also sustained injuries to his dorsal aspects of his right hand due to katyar, in the hand of accused no. 7 raju gahlot. dr. langade (p.w. 7) examined anil dhote on 15-12-87 and noticed incised injury on the dorsal aspect of the left hand of anil dhote. the said injury was 1/2' x 1/4' x 1/4' deep. dr. ismail chouhan (p.w. 6) also examined anil dhote on 18-12-1987, after his arrest. dr. ismail chauhan also found an incised injury 1/2' long. according to doctor, injury was 2-3 days old. anil dhote claimed that the injury was caused by the tin shed. doctor langade also admitted that such injury can be caused by tin shed. however, considering the evidence of p.w. 2 anil choudhary, we do not accept the explanation given by anil dhote. (v) anil choudhary specifically stated that after the assault, all the accused went to the house of anil dhote. there only pramod ingale expressed his desire that he is going to his native place. shri chauhan, the police inspector (p.w. 24) deposed that on 17-12-87, accused no. 10 pramod ingale was brought from village bapori, police station, mana, district akola. this corroborates the statement made by anil choudhary. (vi) according to anil choudhary, all the assailants-five in numbers carried their respective weapons to the house of anil dhote where they washed them and dropped them in the well situated in the premises of the house of anil dhote. at the instance of anil dhote, the weapons articles 7, 8 and 9 were recovered from the well. (vii) articles 7, 8, 9 and 20 were examined by the doctor sahebrao vilhekar (p.w. 19). according to the doctor vilhekar, article 8 (rampuri knife), article 9 (large knife) and article 20 (katyar) since all these weapons are sharp cutting and pointed instruments could cause the injuries found on the person of ramkishore somani. similarly, the injuries 1 and 2 which were noticed on the person of ramkishore somani are possible by barber's razor article 7. similarly, according to doctor vilhekar, injuries which were found on the person of ashok somani were possible by articles 8, 9 and 20. (viii) sudhir pohakar (p.w. 3) who was with the accused on 15-12-1987, was initially engaged to reach the books of anil choudhary to his house. subsequently, he was directed to reach the cycle of anil dhote to his house and again he was directed to fetch katta. he deposed that accused no. 10 pramod ingale was along with the approver and other accused. he also deposed that after the arrest of accused no. 4 ramprasad during the dahi-handa programme, next day he had been to the court premises to see him and others where he has seen all the accused. he also deposed that accused no. 4 ramprasad told to other accused not to worry about their life even if they are going to eliminate ramu somani. similarly, he specifically deposed that at the instance of the accused, after assault, he had been to the house of accused no. 4 ramprasad yadao to fetch about rs. 150/- to rs. 200/- to enable them to leave amravati. an amount of rs. 40/- was paid to him by the accused no. 4 ramprasad, the same amount was handed over to accused anil dhote by him. thus, there is a sufficient corroboration to the evidence of the approver. no circumstance has been brought on record to discard his testimony. his evidence was criticized that he was also an accomplice. however, from his evidence, it is clear that simply he was acting on the tunes of the accused. except this, nothing to point out that he was a member of the unlawful assembly or at any time he participated in their anti-social activities. (vix) balaji bobde (p.w. 4) has seen four persons sitting on the parapit of the well on 15-12-87. this is stated by approver too. out of four persons who were sitting on the parapit of the well, accused no. 7 raju was known to him. according to this witness he was struggling to start his moped near the well. after sighting balaji, accused no. 7 raju went near him. this is the reason to remember the presence of four persons. his evidence has been discussed by the learned trial judge and believed his testimony. 26. thus, considering the evidence of the approver and the various circumstances referred to above, there is sufficient corroboration on material aspects and that too from the truthful independent sources. according to us, the learned trial judge has rightly believed the evidence of the approver : thus, the prosecution proved beyond reasonable doubt through the evidence of anil choudhary (p.w. 2) that he along with accused no. 5 vinit alias baba swami, accused no. 6 anil dhote, accused no. 7 raju gahlot and accused no. 10 pramod ingale formed an unlawful assembly and made murderous attack on deceased ashok somani and ramu somani with deadly weapon on 15-12-1987 at about 4.15 p.m. 27. now, we propose to consider and scrutinise the evidence as to whether accused no. 1 gopal maharaj, accused no. 2 deceased ramkishore, accused no. 3 ravindra and accused no. 4 ramprasad, are in any way connected with the assault on somani brothers. if their complicity is proved then whether they have committed the offence punishable under ss. 109 and 150 of the indian penal code. 28. we heard shri deshpande, the special counsel for the state, shri hardas, the learned counsel for the accused no. 1 gopal maharaj and smt. deshpande the learned counsel for the accused nos. 3 and 4. 29. it is no doubt that the original accused nos. 5, 6, 7, 8 and 10 were teenagers school going boys. however, they became the members of the gang of original accused no. 2 deceased ramkishore and his brother accused no. 4 ramprasad yadao. yadao brother were not only friendly with gopal maharaj (accused no. 1), but were supporting his activities. consequently, the accused nos. 5, 6, 7, 8 and 10 became acquainted with the accused no. 1 gopal maharaj. even otherwise these youngsters had no axe to grind against ramu (ramkishore) somani and his deceased brother ashok somani. they became prey of the instigation or persuasion. 30. shri deshpande, the special counsel for the state very fairly conceded the acquittal of accused no. 3 ravindra kalbande. however, the learned counsel strenuously criticised the acquittal of accused no. 1 gopal maharaj, accused no. 2 deceased ramkishore and accused no. 4 ramprasad yadao, the findings being perverse and erroneous. during the pendency of the appeal, it is reported that the original accused no. 2 ramkishore is no more and, therefore, the submissions will be restricted only in respect of gopal maharaj and ramprasad yadao. shri deshpande, the special counsel for the state submitted that the prosecution led cogent, reliable and unimpeachable evidence to bring home the guilt against the accused gopal maharaj and ramprasad yadao. anil choudhary (p.w. 2), sudhir pohakar (p.w. 3) and kishore goyal (p.w. 17) proved the complicity of original accused nos. 5, 6, 7, 8 and 10 in the murderous attack on somani brothers. the learned trial court has believed the evidence of anil choudhary and held that the accused nos. 5, 6, 7, 8 and 10 had formed an unlawful assembly and attacked somani brothers with lethal weapons resulting the death of ashok somani and seriously injuring ramu somani. however, no discussion at all why the evidence of anil choudhary is discarded regarding the talk in the court premises on 4th and 10th december, 1987 and on 14th december, 1987 in jail, where anil choudhary (p.w. 2) and other accused nos. 5, 6, 7, 8 and 10 were instigated or persuaded or coerced by gopal maharaj, deceased ramkishore and his brother ramprasad yadao to eliminate ramu somani and his guards. similarly, the evidence of sudhir pohakar (p.w. 3) and kishore goyal (p.w. 17) is not at all discussed in the judgment by the learned trial judge. the learned counsel drawn our attention to the observations of the learned trial judge made in paras 83 and 84 of his judgment. in the closed of para 83 the learned trial judge observed : 'i have also considered, if there are other possibilities to indicate that the approver was got up witness in order to spell out the case against these accused. after giving full consideration to various aspects, i find that it is not possible to say that the approver was only a got up witness. his participation in the incident of assault is also amply proved'. para 84 ................. 'in so far as it pertains to the accused no. 1 gopal maharaj, i would say that the material on record is not enough to conclude that he has instigated or that he hired these assailants.' shri hardas, the learned counsel for the accused no. 1, gopal maharaj, pointed out that the learned trial judge has rightly rejected the evidence of anil choudhary-approver and submitted that once the accused has been acquitted, the acquittal cannot be disturbed unless the reasonings are absolutely perverse. similarly, according to smt. deshpande, the learned counsel for the accused no. 3 ravindra and accused no. 4 ramprasad, the acquittal is just and proper and no interference is warranted. 31. shri hardas, the learned counsel further submitted that the prosecution has not produced the best available evidence regarding production of accused ramkishore in the court on 4-12-1987. according to shri hardas, the jamadar who was holding the rope that was fastened to the said handcuff, would have been the best witness to depose about the conversation. however, according to witness anil choudhary-approver the jamadar was about 7 to 8 ft. away when the conversation was going on. it was secret conversation between them and, therefore, it would definitely not be audible to others and particularly to police. under the circumstances, it cannot be expected that jamadar would have heard the conversation from 7 to 8 ft. therefore, there was no propriety to examine the jamadar. 32. according to anil choudhary, on 4-12-1987 he along with accused no. 5 vinit alias baba, accused no. 6 anil dhote, accused no. 7 raju gahlot had gone to see under-trial accused ramkishore the brother of accused no. 4 ramprasad, in the court premises. accused deceased ramkishore was involved in a case under s. 307 of the indian penal code. accused no. 1 gopal maharaj said to ramkishore (original accused no. 2) that he could not obtain the bail from the court because of hindrance of ramu somani. on this ramkishore became enraged and instructed the accused persons to eliminate ramu somani. p.w. 11 yusufkhan the under-trial prisoner was also brought to the court on 4-12-1987. he deposed that gopal maharaj was talking with accused ramkishore. while both were talking, he wished them. upon this, ramkishore sharply asked him to go away and consequently he went away. at that time, he saw 8 to 10 persons with them. he identified baba swami son of chief saheb as one amongst them. he went near the accused dock and pointed out accused no. 5 as a vinit alias baba swami. the learned trial judge has not considered his evidence and discarded the same only because he was under-trial. no other reasons have been assigned. according to us, the learned trial judge fell in grave error. anil choudhary further deposed that on 10th december, 1987 again along with other accused he had gone to the court to see ramkishore. ramkishore yadao and gopal maharaj again persuaded all the accused to kill ramu somani. ramprasad directed the accused to execute the work and during that period he would stay behind the bar so that there would not be any suspicion against him. this talk took place at about 3.30 p.m. p.w. 17 kishore goel who was also the under-trial for the offence under s. 392 of the indian penal code was brought in the court on 10-12-1987. according to kishore goel, accused ramkishore yadao was also brought on that day. he stated that he has seen the father of ramkishore, his brother ramprasad yadao (accused no. 4), baba swami and gopal maharaj. no reasons have been assigned to discard his testimony. p.w. 3 sudhir pohakar stated that a day on two before the fair of gadge maharaj (from the record it appears that it was on 11-12-1987), he had gone to the court to see ramkishore yadao. he was brought on that day in the court as his case was fixed. anil dhote, anil choudhary, raju gahlot and others were present in the court near ramkishore. there was some conversation between them. he being little away from them he could not follow their conversation. he was in the court premises from 12 noon till 3.00 p.m. that day. the learned trial judge believed sudhir pohakar in respect of other aspect as he was engaged by the accused nos. 5, 6, 7, 8 and 10 on 15-12-1987 to reach the books of anil choudhary to his house, thereafter to reach the cycle of anil dhote to his house and also to the effect that he was directed to bring the katta. similarly his presence with accused on 15-12-87 till 3.30 p.m. near the well has been established. however, his evidence in respect of his visit to the court premises to see ramkishore where he has seen the aforesaid accused and ramprasad has not been at all discussed in the judgment. anil choudhary further deposed that though he and his associates searched for ramu somani on 12th and 13th december, 1987 they could not locate him and, therefore, on 14-12-87 he, anil dhote, raju gahlot and baba swami along with two other met with ramkishore yadao in jail. 33. shri hardas, the learned counsel for the accused no. 1 gopal maharaj, vehemently submitted and pointed out some omissions from the police statement of the approver. it is pertinent to note that no omissions or contradictions have been brought on record from the confessional statement recorded by the special executive magistrate. however, he did not pursue the submission in view of the observations made by their lordships in a case of madan mohan v. state of punjab, : 1970crilj898 that certain omissions in the police statement would not be sufficient to discard the testimony of the approver. in the confessional statement, nothing is reflected. their lordships observed that; 'when the accomplice gave police statement, he was not aware that later on pardon would be possible granted to him and under these circumstances, certain omissions in the police statement which part he has later on stated in his confessional statement and the deposition, by itself would not be sufficient to discard his testimony'. 34. shri hardas, the learned counsel for the accused no. 1 gopal maharaj argued that merely because there was enmity between gopal maharaj and ramu somani and that too political rivalry, it cannot be ascribed as a motive to kill ramu somani. the consideration may be feeble but intention is writ large. the motive is a thing which is not apparent or visible. in fact the motive is the brain work of the person concerned and he is one who can definitely say what was in his mind. here in this case, according to ramu somani, the relations between him and the accused no. 1 gopal maharaj were strained due to the political dispute. initially he and gopal maharaj belonged to congress (i) party. but, subsequently the accused no. 1 gopal maharaj had left the congress party and he had joined front known as 'amravati mahapalika sudhar samiti'. both were contenders from the same ward. thus, they developed political rivalry. however, according to gopal maharaj, there was a business rivalry. this is false. admittedly, ramu somani and his brother were dealing in cloth business while gopal maharaj was dealing in scrap. thus, there cannot be any business rivalry. 35. similarly, according to anil choudhary, he along with the accused anil dhote, raju gahlot, baba swami and two others had been to jail to see kishore yadao that all met him. further, anil choudhary stated that he informed kishore yadao that in spite of their efforts, they could not locate ramu somani. his evidence has been attacked referring his admission in cross-examination (para 26) that he is not a man of truth as he changes his version. it is true that in the first breath he said that he was out of jail, but immediately in the next breath he stated that he too also went inside the jail along with other accused. therefore, according to the learned counsel, anil choudhary is not a man of credence and, there being no corroboration to his testimony on this aspect, his evidence be rejected. according to the learned counsel, the best evidence would have been the production of the visitor's register from jail, wherein visitors used to sign and to examine the jail authorities to substantiate the visit of the approver-anil choudhary. the change in evidence is only to the effect that whether he was outside the jail premises or he went inside the jail to see accused ramkishore yadav. this shows only the forgetfulness for a moment. however, after stating that he was outside the jail premises, within a second he corrected himself and deposed that he too went inside the jail along with other accused. on the basis of such a trifle matter, one cannot jump to the conclusion that he is not a truthful witness. 36. section 107 of the indian penal code defines the expression 'abetment' as; 'as instigation a person to do a thing as has been defined as one of the species of abetment. a person is said to 'instigate' another to do an act, when he actively suggests or stimulates him to the act by any means or language, direct or indirect whether it takes the form of express solicitation or hints insinuation or encouragement. the word instigate means to goad or urge forward or to provoke, incite, urge or encourage to do an act'. the conduct and words used by the accused gopal maharaj, ramkishore and ramprasad yadao as depicted by anil choudhary would constitute a species of abetment. 37. section 150 of the indian penal code reads as follows; section 150 :- hiring, or conniving at hiring of persons to joining unlawful assembly :- 'whoever hires or engages, or employs or promotes, or connives at the hiring, engagement or employment of any person to join or become a member of any unlawful assembly, shall be punishable as a member of such unlawful assembly, and for any offence which may be committed by any such persons as a member of such unlawful assembly in pursuance of such hiring, engagement or employment, in the same manner as if he had been a member of such unlawful assembly, or himself had committed such offence'. section 150 creates a specific offence. this section intends to embrace all those who hires, promote or connive at the employment of the persons and render them punishable as principal participants. it is clear from the language of this section which refers to a particular unlawful assembly. under the section, a person thought not actually a member of that unlawful assembly himself may be held guilty of being a member of unlawful assembly and may also be held liable for the offence which may be committed by the member of the unlawful assembly or himself had committed such offence. but, it is possible only when it is found that such person has hired or engaged or employed or promoted or connived at the hiring, engagement or employment, to any other person to join or become a member of a particular unlawful assembly. in other words there must be finding that there has been unlawful assembly which was composed of the persons said to have been hired or engaged, employed or promoted or connived at the time by the accused and in the course of which some offence has been committed for which the accused would be responsible equally with those who may be the members of that unlawful assembly. 38. to attract the provisions of s. 150 of the indian penal code, the prosecution has to prove that the persons were either hired or engaged or employed or promoted or connived at the hiring engagements or employment. the word promotes denotes acceleration or inducement. though the word employ or employment is used, it does not mean a recruitment. it means without any recruitment as a servant or agent to commit the offence. it would be calling of the service. considering the meaning of the words and the provisions of s. 150 of the indian penal code, it is crystal clear from the evidence as discussed that gopal maharaj was planning to eliminate ramu somani. we have no doubt that in the instant case the provisions of s. 150 of the indian penal code are attracted and as such there was an unlawful assembly which we have held in affirmative. the members of unlawful assembly assaulted somani brothers. these persons had no grudge against the victims. they were instigated, induced and encouraged to commit the murder of ramu somani by accused no. 1 gopal maharaj and accused no. 4 ramprasad yadao. thus, gopal maharaj and ramprasad yadav, both have committed the offence punishable under ss. 109 and 150 of the indian penal code. 39. in the result, the criminal appeal no. 130/89 preferred by the appellants vinit, anil, raju and promod is dismissed. the criminal appeal no. 218 of 1989 preferred by the state, except in respect of accused no. 3 ravindra bhimrao kalbande, is allowed. the accused gopal maharaj nandlal upadhyaya and accused ramprasad ramjatan yadao are convicted for the offence punishable under ss. 302 read with 109, 149, 107 and 150 of the indian penal code and are sentenced to suffer imprisonment for life. similarly, both the accused are convicted for the offence punishable under ss. 148, 307 read with ss. 149, 107 and 150 of the indian penal code and are sentenced to suffer rigorous imprisonment each accused is directed to pay a fine of rs. 5000/- in default to suffer rigorous imprisonment for one year. the substantive sentences shall run concurrently. the criminal appeal no. 217/89 preferred by the state being without merit, is dismissed. the criminal revision application no. 136 of 1989 and criminal revision application no. 137 of 1989 preferred by the victim ramkishore s/o mangilal somani are disposed of. on the request of shri hardas, the learned counsel for the accused no. 1 gopal maharaj and mrs. deshpande, the learned counsel for the accused no. 4 ramprasad ramjatan yadao, two months' time is granted to surrender to their bail bonds. 40. order accordingly.