Full Judgment Text
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PETITIONER:
BHIMRAO ANNA INGAWALE AND OTHERS
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT02/04/1980
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
KOSHAL, A.D.
CITATION:
1980 AIR 1322 1980 SCR (3) 309
ACT:
Indian Penal Code 1860 (XLV of 1860) Ss. 302, 149 &
148-Animosity and enmity between the six accused and the two
deceased [assault by the party of the accused on the
deceased and their brothers-Party of the accused whether
aggressors and have acted in exercise of the right of
private defence-conviction-whether valid.
HEADNOTE:
Appellants Nos. 1 to 6 were charged and convicted for
two offences under section 302 read with section 149 and one
under section 148 of the Indian Penal Code for having caused
the death of two persons.
Appellants Nos. 1 to 4 and 6 are inter-related, while
appellant No. 5 is Their friend, and the two deceased are
brothers. Appellants Nos. 1 to 4 and 6 lived Jointly in a
house which abutted on a road 14 feet wide. Opposite, their
house lay the one belonging to the two deceased. The waste
water emanating from the house of the appellant No. 1 had
been flowing towards the road and seeping into the western
wall of the house of the deceased. This resulted in inimical
relation between the two parties. Animosity also prevailed
among the parties on account of the fact that The family of
the deceased had earlier sold to a third person some land
which they wanted to repurchase but were thwarted in their
designs by the appellants who were instigating the vendee
not to re-sell the land to the deceased.
The prosecution alleged that on the fateful day, in the
morning there was a dispute and altercation between the two
deceased and the appellants. The incident was noticed by PW
20 who intervened and separated them disarmed the two
deceased and threw away the sticks which he snatched from
them. At about 2 P.M. On the same day all the appellants
entered the house of the deceased armed with axes and sticks
dragged out the deceased on the road and started beating
them with their respective weapons. PW 10 and PW 11, the
wives of the deceased intervened and they also received
injuries at the hands of the appellants. In the meantime PW
13, PW 14 and their brother Jayakar who came to the place of
occurrence were beaten by the appellants who thereafter made
good their escape. The four injured brothers and the two
ladies were removed to the Civil Hospital. The two deceased
succumbed to their injuries later.
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Meanwhile appellant No. 1 reached the police station
and he complained to the sub-inspector (P.W. 24) that he and
his family members had been attacked by the party of the
deceased. On learning that the opposite party had arrived at
the local Civil Hospital, the sub-inspector reached the
hospital and recorded the statement (Ex. 55) of P.W. 12.
This formed the basis of the first information report
registered at the police station. On returning to the police
station the sub-inspector arrested appellant No. 1.
310
The case of the appellants was that feelings of enmity
existed between the two opposing families for two or three
years prior to the date of the occurrence, that on that dale
there was exchange of abuses between appellants Nos. 1 to 3
on the one hand and the deceased on the other when the
latter were about to assault the former but could not do so
on account of the intervention of PW 20s that soon
afterwards the two deceased and their three brothers
assaulted appellants Nos. 1 to 4 with sticks and axes at the
latters house when some of the assailants were disarmed and
beaten back, and that appellants Nos. 4 to 6 were not
present at the scene of the occurrence and had been involved
in the case merely because they were related to the other
appellants by ties of blood or friendship.
The Sessions Judge was of the opinion that the incident
in which the two contending parties exchanged abuses and
which came to a close with the intervention of PW 20
provided the motive for the assault in which the two
deceased lost their lives and that the eye-witnesses had
given details of the occurrence which were omitted from
their statements made to the police but that no significance
could be attached to this aspect of the matter. He further
held that the occurrence took place on the road Lying in
between the respective houses of the parties, that the
participation of all the accused in the occurrence was
natural and probable, that the party of the accused were
able to inflict serious injuries on their opponents and
themselves escaped with comparatively a mild beating and
that therefore, there was no right of private defence
available to the appellants. On this finding the Sessions
Judge convicted and sentenced the six appellants.
The appeal to the High Court was heard by a Division
Bench, but on Account of difference of opinion among the
Judges, the matter was referred to a third Judge and the
appeal was dismissed in accordance with the majority
opinion. All the three Judges re-appraised the evidence and
while the majority arrived at the same conclusion as the
Sessions Judge, the third Judge came to the finding that
there was no reliable evidence to support he prosecution
case that the accused were the aggressors.
In the appeals to this Court on the questions: (a)
Whether the prosecution had proved beyond reasonable doubt
that the party of the appellants were the aggressors and
whether it was made out from the records that the latter may
have acted in exercise of the right of private defence, and
(b) whether the participation of all the appellants in the
occurrence was satisfactorily made out:
^
HELD: (a) (i) The consideration of the ocular evidence
coupled with the testimony of PW-20 and the circumstantial
evidence especially the medical part, of it, prove beyond
reasonable doubt that the party of the appellants were the
aggressors. [323F]
(ii) The occurrence admittedly took place on the road
in between the respective houses of the deceased and the
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appellants which is fully made out from the deposition of PW
20 who is no doubt a wholly independent and reliable
witness. He was attracted to the place of occurrence by a
noise which reached him in his field after he had gone there
subsequent to his witnessing the three brothers of the
deceased running towards their house. The circumstance that
their other two injured brothers were also found lying on
the road lends further strength to the conclusion that the
occurrence took place on the road
311
itself and not at the house of the appellants. It may also
be safely assumed, apart from the fact that all the
prosecution witnesses say so, that PW’s 12, 13 and Jayakar
were not with the deceased at the inception of the fight and
were, on the other hand, working in their fields. [320 D-G]
(iii) If the party of the deceased were the aggressors
and had made a concerted attack on the appellants who were
taken unawares there is no reason why the former should have
come out second best in the combat. The fact that
practically all the injuries received by the deceased were
located in the head region and were inflicted with great
force makes it highly probable that it was they who were
taken unawares and had to bear the brunt of the attack which
they had perhaps no means to repulse. [321 B]
(iv) The fact that the women-folk of the deceased were
also injured during the occurrence makes it probable that
the ladies had to intervene because the fight was unequal
and their respective husbands found it difficult to cope
with it. [321 G]
(v) Another inference which may well be drawn from the
consequences of the combat is that PWs 12 and 13 and their
brother Jayakar probably reached the place of occurrence
while their brothers were being belabored and that it was at
this stage that the three new-comers entered the arena and
took up cudgels on behalf of their hapless family members.
[321 D]
(vi) It is not unoften that improvements in an earlier
version are made at the trial in order to give a boost to
the prosecution case, albeit foolishly. But that does not
mean that falsity of testimony in one material particular
would ruin it from beginning to end. On the other hand the
circumstance will be a goo reason merely for the court to be
put on guard and sift the evidence with extraordinary
caution and to accept those portions of it which appear
fully trustworthy either intrinsically or by reason of
corroboration from other trustworthy sources. [321 G]
(vii) The road has a width of only 14 feet and if two
opposing parties consisting in all of six to ten persons,
engage themselves in violence against each other, the exact
place where the members of each would be injured may not
mean anything especially if one of the parties is taken
unawares and is unarmed. [323 B]
In the instant case, none of the injuries suffered by
the appellants (except for one) was located on a vital part
and all of them without exception were simple in nature, the
injuries on the two deceased persons being in contrast
practically all deadly. [323 D]
(b)(i) Appellants Nos. 4 to 6 are entitled to the
benefit of doubt in the matter of their participation in the
occurrence. [324 B]
(b) (ii) Appellants Nos. 1 to 3 are proved beyond
reasonable doubt to have taken part in the fight. They are
not merely named in that behalf by the eye-witness but admit
their participation in the occurrence which is further
assured by reason of the fact that all three of them were
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found injured immediately thereafter. The same is not true
of the other there who have denied their presence at the
time and place of the occurrence and about whose
participation in the fight no other assuring factors is
forthcoming. [323 G]
312
(iii) According to PW 20, appellant No. 4 was present
at the scene when the abuses were exchanged but that fact is
no guarantee of his participation in the occurrence which
took place about a couple of hours later. No incongruity
results from the exclusion of appellants Nos. 4 to 6 from
the fight be cause the other three appellants would have as
effectively caused all the injuries found on the two
deceased and the two ladies all by themselves as if they
were caused by them with the assistance of appellants Nos. 4
to 6. [323H-324A]
(c) The offence under section 148 of the Code falls to
the ground with the acquittal of appellant Nos. 4 to 6, and
so does that under section 149 thereof. The two offences of
murder were committed by appellants Nos. 1 to 3 in
furtherance of their common intention so that each one of
them is liable to conviction on two counts under section 302
read with section 34 of the Indian Penal Code. [324C-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
349 of 1979.
Appeal by Special Leave from the Judgment and order
dated 27/28-9-1977 of Bombay High Court in Criminal Appeal
No. 593/76.
S.D. Dashme, V.N. Ganpue, Mrs. V.D. Khanna, C.K.
Ratnaparkhi and Miss Geeta Sharma for the Appellants.
M.C. Bhandare and M.N. Shroff for the Respondent.
The Judgment of the Court was delivered by
KOSHAL, J. This appeal by special leave is directed
against a judgment dated 27th/28th of September, 1977, of
the High Court of Maharashtra upholding the conviction of
the six appellants recorded by the learned Sessions Judge
for two offences under section 302 read with section 149 and
of one under section 148 of the Indian Penal Code, the
sentence awarded being imprisonment for life on each of the
first two counts and of rigorous imprisonment for one year
on the third with a direction that the sentences shall run
concurrently.
The first appeal in the High Court was originally heard
by Vaidya and Sawant, JJ., who differed with each other on
the judgment to be rendered, Vaidya, J., holding that the
appeal merited dismissal and Sawant, J., being of the
opinion that it deserved acceptance in full. The case was
therefore laid under section 392 of the Code of Criminal
Procedure before Apte, J., who concurred with Vaidya, J., so
that the appeal stood dismissed by the impugned order.
2. Certain facts are not in dispute and may be stated
at the outset. The occurrence took place on the 11th of
November, 1974, in village Kole to which all the appellants
except Khashaba (appellant No. 5) belong, Appellants Nos. 1
to 4 and 6 live jointly in a house which abuts on a road 14
feet wide. Opposite that house lies the one belong-
313
ing to the two unfortunate persons who lost their lives as a
result of the occurrence which is said to have taken place
in consequence of inimical relations between the accused and
the opposite party. The waste water emanating from the house
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of appellant No. 1 had been flowing towards the other side
of the road and seeping into the western wall of the house
of the deceased. This was one of the factors leading to
animosity between the parties, another being that the family
of the deceased had earlier sold to a third person some land
which they wanted to re-purchase but were thwarted in their
design by the accused who were instigating the vendee not to
re-sell the land to the deceased.
3. The deceased were related to five of the eye
witnesses as would appear from the following pedigree-table:
Anandrao
|
|
______________________________________________
| |
| |
Abasahed (eye Shripati
witness (PW-19) |
|
____________________________________________________
| | | | |
| | | | |
| | | | |
Nivas Balasaheb Bhimrao Uttam Jayakar
(deceased) (deceased) (eye witness (eye (eye
=Lakshmi =Droupadi PW-12) Witness witness
(eye witness (eye witness PW-13) not
PW-10) PW-11) produced)
The relationship inter se between accused-appellants
Nos. 1 to 4 and 6 is shown in the table below along with the
weapons of offence said to have been wielded by each of them
and an absconding accused during the occurrence :
Bhimrao
(appellant No. 1-axe)
|
|
_________________________________________
| | |
| | |
Anna Banda alias Maruti Kisan
(appellant (appellant No. 3-stick) (appellant
No. 2- | No.4- axe
stick) |
_______________________________
| |
| |
Dhondiram Shamrao
(appellant No. 6-stick) (absconding accused-stick)
314
Khashaba accused No. 5 is said to be a friend of the
family of the other accused and belongs to another village.
He was said to be armed with a stick at the time of the
occurrence.
4. The prosecution case may be stated thus. On the
fateful day Nivas deceased left his house at about 10 A.M.
for Karad where he wanted to have himself medically checked
up. He returned home at about midday and told his wife that
he had been driven back by Anna appellant No. 2. By then
Balasaheb deceased also came to his house from the sugar
factory where he was working. It was at this juncture that
the two brothers heard abuses being hurled at them by all
the accused and after emerging from their house picked up
two small sticks and went towards the accused. A scuffle was
imminent between the two contending parties when Bhimrao
Kadam PW-20 who hails from another village Lying about a
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mile away and who was then returning home from his field
intervened, separated them, disarmed the two deceased and
threw away the sticks which he snatched from them before
continuing his journey.
At about 2 P.M. all the accused entered the house of
the deceased, armed as aforesaid, dragged them out of it on
to the road and started beating them with their respective
weapons. Lakshmi PW-10 and Droupadi PW-11 intervened and
received injuries at the hands of the accused. In the
meantime Bhimrao PW-13, Uttam PW-14-and their brother
Jayakar who had been working in their field and were
informed by a boy about the assault on the deceased, came
running to the place of occurrence but they too were beaten
up by the accused who then made good their escape.
Jayakar brought a motor vehicle from Islampur and took
his four injured brothers as well as the two ladies to the
Civil Hospital there. In the meantime Bhimrao appellant No.
1 reached police station Islampur where he complained to
Police Sub-Inspector Pandurang that he (appellant No. 1) and
his family members had been attacked by the party of the
deceased. On learning that the opposite party had arrived at
the local Civil Hospital, the Police Sub-Inspector reached
the Hospital at about 8 P.M. and recorded the statement
(exhibit-55) of Bhimrao PW-12 which forms the basis of the
formal first information report registered at the police
station.
Under the advice of the Medical officer, Islampur, the
injured left the same evening for the Civil Hospital at
Sangli on the way to which Nivas and Balasaheb expired.
On return to the police station Pandurang PW-24
arrested Bhimrao appellant No. 1.
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Lakshmi PW-10 was examined on the date of the
occurrence it self by Dr. Bhaskar PW-17 and was found to
have in the web connecting the right thumb and the index
finger a muscle-deep incised wound having the dimensions
1"x1/4". Droupadi PW-11 was examined by another doctor on
the same day but she was not produced at the trial for the
reason that she had in the mean-time been transferred to
Nagpur. She was examined again on the 18th of November,
1974, by Dr. Shridhar PW-14 who found that on the mid-outer
aspect of her left thigh was located a blue-black
discolouration having a probable duration of eight days.
Bhimrao PW-12 was examined by Dr. Kantilal Shah PW-16
on the 11th of November, 1974, at the Civil Hospital,
Sangli, and was found to have suffered six injuries
consisting of a scalp-deep incised wound located on the
central parietal area and having the dimensions 3" x 1/4",
two confused lacerated wounds located over the same area,
two contusions and an abrasion. The same doctor examined
Uttam PW-13 on the same day when the latter was found to
have on his person five injuries consisting of two contused
lacerated wounds located in the head and three contusions on
other parts of the body.
Appellants Nos. 1 to 3 were examined by Dr. Shridhar
PW-14 on the 11th of November, 1974 at the Civil Hospital,
Islampur. Bhimrao appellant No. 1 had on his person three
injuries consisting of a contusion on the right forearm
having the dimensions 8 cm. x 5 cm., a weal mark on the
right shoulder blade and an abrasion. Anna appellant No. 2
was found to have suffered eleven injuries consisting of six
lacerated wounds, two contusions, two weal marks and one
abrasion, only one of them, i.e., a lacerated wound, being
located on a vital part (the head). Maruti appellant No. 3
had an incised and a lacerated wound on the head and another
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lacerated wound, two weal marks and a contusion on other
parts of the body.
The injuries so far described and found on various
members of the opposing parties were presumably all simple
in nature.
Dr. Digambar Joshi PW-15 carried out the post mortem
examination of the two dead bodies on the 12th of November,
1974, Nivas deceased was found to have suffered four
external injuries two of which were bone-deep contused
lacerated wounds located in the head region. According to
the doctor the scalp was all ’boggy’ and the injuries were
’fresh’. The internal damage to the head, the doctor noted,
consisted of an extensive haematoma on the scalp, multiple
fractures of the left temporal and parietal bones, fracture
of the right frontal blade, fracture of the middle cranial
fossa on the right side and extradural haema-
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toma on the right fronto-parietal region, the left temporal
region and the left fronto-parietal region.
In the opinion of the doctor the deceased must have
become unconscious immediately after the receipt of the
injuries which were inflicted with force and were sufficient
in the ordinary course of nature to cause death
Balasaheb deceased was found by the same doctor to have
suffered four external injuries two of which were located in
the head region, one being a contused lacerated wound and
the other an incised wound. The right temporal region,
according to the doctor, was ’boggy’ and the injuries were
’fresh’. The internal damage to the head, the doctor noted,
consisted of an extensive haematoma under the scalp,
numerous fractures of the right and left frontal bones,
right and left parietal bones and the right temporal bone,
congestion of the cortical vessels and bleeding in the brain
substance. The right from to parietal region was found by
the doctor to be soft and lacerated. The brain-matter,
according to him, was coming out. He was categorical in
stating that the death must have been instantaneous and that
the injuries were individually sufficient to cause death in
the ordinary course of nature.
5. 24 witnesses were examined at ’the trial in support
of the prosecution case. They included five eye-witnesses,
namely, Lakshmi PW-10, Droupadi PW-11, Bhimrao PW-12, Uttam
PW-13 and Aba-saheb PW-19, all of whom gave substantially
the same version of the occurrence as has been set out
above. Bhimrao Kadam PW-20 deposed that at about noon on the
fateful day he was returning home from his fields which lie
only at a distance of about 250 feet from the houses of the
parties, when he found appellants Nos. 2, 3 and 4 exchanging
abuses with the two deceased who were armed with sticks.
According to the witness he disarmed the deceased and threw
away the sticks on to the roof of their house. The witness
claimed to have gone away after advising both the parties to
settle their disputes amicably. He then testified to having
met Bhimrao PW-12, Uttam PW-13 and their brother Jayakar
when he returned to his field the same day. He further
stated that they were running but were not armed. The rest
of his testimony-in-chief may be summarised thus:
"I again heard shouts from the houses of the
parties. I again came back to the road in between their
houses and saw that Nivas, Balasaheb, Uttam and Bhimrao
had injuries and they were Lying on the road. All these
injured were unconscious and their clothes were stained
with blood.
317
Lakshmi and Droupadi were by their side. The accused
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were not present at that time. This was at about 2.30
P.M. Or 3 P.M."
When asked in cross-examination as to what was the exact
place where he met the brothers of Nivas, he replied:
"I immediately started to my field and I met them
at a distance of about 50 or 100 feet. I again heard
the noise after a very short time after reaching the
field."
The witness was questioned about what he saw on reaching the
place of occurrence for the second time and what transpired
later. He stated :
"Uttam and Bhimrao were lying on the road near the
door of the house of the accused. Nivas was Lying in
the middle of the road opposite to the door of the
accused. There were blood stains on the road at the
place. Jayakar was present at the scene of offence and
I told him to inform the police at Islampur. Afterwards
l went to the house of the accused. I found that there
were injuries on accused No. 2 Anna and accused No. 3
Banda. Accused No. 2 Anna was Lying unconscious. Banda
told me that Nivas and all his brothers came to their
house and assaulted them."
The last question put to him in cross-examination was
whether it was true that Bhimrao PW-12, Uttam PW-13 and
their brother Jayakar were armed with sticks and axes. He
replied that they had something (in their hands) but that he
could not say if they had sticks and axes.
6. The defence case may be summed up as follows.
Feelings of animosity existed between the two opposing
families for two or three years prior to the date of the
occurrence as alleged by the prosecution. On that date there
was an exchange of abuses between appellants Nos. 1 to 3 on
the one hand and the deceased on the other when the latter
were about to assault the former but could not do so on
account of the intervention of Bhimrao Kadam PW-20. Soon
afterwards the two deceased and their three brothers
assaulted appellants Nos. 1 to 3 with sticks and axes at the
latter’s house when some of the assailants were disarmed and
beaten back. Appellants Nos. 4 to 6 were not present at the
scene of occurrence and had been involved in the case merely
because they were related to the other appellants by ties of
blood or friendship.
318
7. The learned Sessions Judge was of the opinion that
the incident in which the two contending parties exchanged
abuses and which came to a close when Bhimrao Kadam PW-20
intervened provided the motive for the assault in which the
two deceased lost their lives. While examining the ocular
testimony he arrived at the findings detailed below:
(a) That part of the prosecution story according to
which the two deceased were dragged out of their house by
the seven accused was never put forward during the
investigation and was concocted to sene as an improvement
over the version given earlier.
(b) The eye-witnesses had given details of the
occurrence which were omitted from their statements made to
the police but no significance could be attached to this
aspect of the matter.
(c) Lakshmi PW-10, Droupadi PW-11, Bhimrao PW-12 and
Uttam PW-13 were certainly present at the occurrence as is
made out from the fact that they were found to have injuries
on their person immediately thereafter. Assurance to the
presence of Abasaheb PW-19 at the time and place of
occurrence is also available in the fact that his house
adjoins that of the deceased.
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(d) The incident in which abuses were exchanged
provided the motive for the party of the accused to assault
their opponents rather than the other way round, because the
deceased had really had an upper hand in that incident. lt
would also be natural, in this view of the matter, for
appellants Nos.1 to 3 to summon help and open a concerted
attack. The participation of all the accused therefore in
the occurrence was natural and probable.
(e) The occurrence took place on the road Lying in
between the respective houses of the parties.
(f) The circumstances that two persons from the side of
the eyewitness lost their lives and that four other eye-
witnesses belonging to the same family received injuries are
sufficient to suggest that it was the party of the
appellants who were the aggressors even though appellants
Nos. 1 to 3 were also injured during the occurrence; and the
fact that all the eye-witnesses were unreliable in relation
to the dragging part of the prosecution story is immaterial,
their testimony being otherwise credible. In this connection
it has to be borne in mind that the party of the accused
were able to inflict serious injuries on their opponents and
themselves escaped with comparatively a minor beating. There
was thus no right of private defence available to the
accused.
319
(g) Bhimrao PW-12 and Uttam PW-13 reached the place of
occurrence after the fight between the party of the accused
on the one hand and the two deceased on the other was
already over and that in respect of the injuries caused to
Lakshmi PW-10, Droupadi PW-11, Bhimrao PW-12 and Uttam PW-13
the party of the appellants had a right of private defence.
It was in these premises that the learned Sessions
Judge convicted and sentenced the six appellants as
aforesaid and acquitted them of the minor charges which had
been framed against them in relation to the injuries caused
by them to the four eye-witnesses just above named.
8. In the High Court all the three judges who
considered the appeal fully reappraised the evidence and
while Vaidya and Apte, JJ., arrived at more or less the same
conclusions as the learned Sessions Judge, Sawant, J.,
recorded diametrically opposed findings although he found
Bhimrao Kadam PW-20 to be a wholly independent and therefore
a reliable witness. Those findings were :
(i) There is no reliable evidence whatsoever to
support the prosecution case that the accused were the
aggressors. on the other hand, the following five
circumstances point to the contrary :
(a) The concoction of that part of the
prosecution story according to which the
deceased were dragged out of their house by
the appellants.
(b) During the incident in which abuses were ex
changed, appellants Nos. 2 and 3 were merely
sitting on the door steps of their house
while the two deceased had gone there armed
with sticks in an attempt to assault their
adversaries.
(c) "Immediately after" that incident came to a
close on the intervention of Bhimrao Kadam
PW-20, the deceased were reinforced by their
three brothers and the occurrence commenced
"immediately thereafter".
(d) Bodies of the persons injured on the side of
the deceased were found Lying nearer the
house of the accused than that of their
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opponents.
(e) Appellants Nos. 1 to 3 also received injuries
which were sufficiently serious and numerous.
(ii) Merely because two of the opponents of the
appellants died and the number of persons injured on
320
their side was greater than on that of the appellants,
it will not follow that the latter were the aggressors.
9. The case has been argued before us at great length
by learned counsel for the parties and the two main
questions requiring determination are:
(A) Has the prosecution proved beyond reasonable doubt
that the party of the appellants were the
aggressors and that it is not made out on the
record that the latter may well have acted in
exercise of the right of private defence?
(B) If the answer to question (A) is in the
affirmative, whether the participation of all the
appellants in the occurrence is satisfactorily
made out ?
10. On question (A) we have no hesitation in agreeing
with the conclusion arrived at by the learned Sessions Judge
and Vaidya and Apte, JJ., and we shall record our reasons
briefly. The occurrence admittedly took place on the road in
between the respective houses of the deceased and the
appellants which is fully made out from the deposition of
Bhimrao Kadam PW-20 who is no doubt a wholly independent and
reliable witness. When he was attracted to the place of
occurrence by a noise which reached him in his field after
he had gone there subsequent to his witnessing the three
brothers of the deceased running towards their house, he
found that Bhimrao PW-12, Uttam PW-13 and their other two
injured brothers were all Lying unconscious on the road
where Lakshmi PW-10, Droupadi PW-11 and Jayakar were also
present. It is to be noted that the heads of Nivas and
Balasaheb had been smashed to pulp so that in all
probability neither of them could have moved a step before
falling down after the receipt of the injuries which were
detected on their dead bodies by Dr. Digambar Joshi PW-15.
We have to take it for granted there fore that they were hit
where they fell. The circumstance that their other two
injured brothers were also found Lying on the road lends
further strength to our conclusion that the occurrence took
place on the road itself and not at the house of the
appellants. It may also be safely assumed, apart from the
fact that all the witnesses say so, that Bhimrao PW-12,
Uttam PW-13 and Jayakar were not with the deceased at the
inception of the fight and were, on the other hand, working
their fields. This follows from the testimony of Bhimrao
Kadam PW-20 which bears repetition on the point. He stated
that while he was returning from his house to the fields at
2 .30 or 3 P.M. he found the three brothers of the deceased
’running’ which obviously mean
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running towards their house. It is the case of Bhimrao PW-12
and Uttam PW-13 that they were informed in their field by a
boy named Mehar that their brothers were being attacked by
the party of the appellants and that it was on that account
that they ran towards their house. This assertion fully fits
in with the narration of events by Bhimrao Kadam PW-20.
Another very decisive circumstance is the nature of the
injuries received by the two contending parties. If the
party of the deceased were the aggressors and had made a
concerted attack on the appellants who were taken unawares
there is no reason why the former should have come out
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second best in the combat. The fact that practically all the
injuries received by the deceased were located in the head
region and were inflicted with great force makes it highly
probable that it was-they who were taken unawares and had to
bear the brunt of the attack which they had perhaps no means
to repulse. The fact that their womenfolk were also injured
during the occurrence makes it probable that the ladies had
to intervene because the fight was unequal and their
respective husbands found in difficult to cope with it.
Another inference which may well be drawn from the
consequences of the combat is that Bhimrao PW-12, Uttam PW-
13 and their brother Jayakar probably reached the place of
occurrence while their brothers were being belaboured and
that it was at that stage that the three newcomers entered
the arena and took up cudgels on behalf of their hapless
family members. That is the only reasonable way, it appears
to us, in which all the injuries suffered by the combatants
on the two sides can be explained.
11. It is true, as pointed out by Sawant, J., as well
as the learn ed Sessions Judge, that the eye witnesses have
improved their case at the trial over the story which they
put forward at the investigating stage and therefore prove
their unreliability in material particulars; but then they
are corroborated in certain other material aspects of their
testimony by unimpeachable evidence in the form of the
injuries suffered by the two sides, the place where they
were inflicted and the consequences which flowed from them,
and, in those aspects we cannot but believe them. It is not
unoften that improvements in an earlier version are made at
the trial in order to give a boost to the prosecution case,
albeit foolishly. But that does not mean that falsity of
testimony in one material particular would ruin it from
beginning to end. On the other hand the circumstances will
be a good reason merely for the court to be put on guard and
sift the evidence with extraordinary caution and to accept y
those portions of it which appear fully trustworthy either
intrinsically or by reason of corroboration from other
trustworthy sources. And that is how we have accepted the
eye-witness account in part as stated above.
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12. We may here frankly state that the reasons given by
Sawant, J., in holding that the party of the deceased were
the aggressors do not commend themselves to us. The fact
that improvements were made by the eye-witnesses on the
earlier story and the dragging incident was introduced at
the trial stage has already been noticed by us but, without
more, it cannot be taken to mean that it was the party of
deceased who set the ball rolling. The incident in which
abuses were exchanged between the two contending parties
again does not lead to the inference that it was the party
of the deceased who were guilty of aggression. That incident
no doubt provided the motive for the occurrence but such
motive was attributable to both parties and perhaps more so
to that of the appellants who must have felt humiliated by
the show of force indulged in by the deceased. It further
appears to us that Sawant, J. misread the testimony of
Bhimrao Kadam PW-20 when he remarked that the fight took
place "immediately after" the exchange-of-abuses incident
which had come to a close at the intervention of Bhimrao
Kadam PW-20. It is no doubt true that that witness did state
in answer to a question in cross-examination:
"I immediately started towards my field and I met
them at a distance of about 50 or 100 feet. I again
heard the noise after a very short time after reaching
the field."
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The words "I immediately started towards my field" have no
connection whatsoever with the incident in which abuses were
exchanged. In this connection we may refer to that portion
of the evidence of the witness in which he categorically
stated that that incident had taken place about midday when
he was returning home from his field, that he left after the
incident and that he met Uttam, Bhimrao and Jayakar "while I
was again going back-to my field." The inference is clear
that after the incident in which abuses were exchanged, the
witness had gone home to his village which lies at a
distance of about a mile from the place of occurrence and
that he was again returning to his field when he met the
three brothers of the deceased which was, according to the
witness, ’at about 2.30 or 3 P.M.’.
This misinterpretation of the evidence of Bhimrao Kadam
PW-20 by Sawant, J., appears to us to have influenced the
learned Judge in not a little measure in coming to the
conclusion which he ultimately arrived at. But then he was
also not right, in our opinion, in inferring aggression on
the part of the party of the deceased from the cir-
cumstance that "the bodies of the injured were found nearer
the house of the accused than the house of the deceased". It
is true that Bhimrao Kadam PW-20 did assert:
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"Uttam and Bhimrao were lying on the road near the
house of the accused. Nivas was lying in the middle of
the road opposite to the door of the accused."
But from this no inference such as has been drawn by
the learned Judge is reasonably possible. Admittedly the
road has a width of only 14 feet and if two opposing
parties, consisting in all of six to ten persons, engage
themselves in violence against each other, the exact place
where the members of each would be injured may not mean
anything, especially if one of the parties is taken unawares
and is unarmed. In any case the fact that the road was a
narrow one makes the circumstance relied upon by the learned
Judge wholly innocuous. The only other circumstance which he
pressed into service in support of his conclusion that the
accused appeared to have acted in exercise of the right of
private defence was that they too "received injuries which
were sufficiently serious and numerous" which does not
appear to be an accurate statement of facts. The injuries
referred to by him were no doubt as numerous as those
suffered by the other party; but then they cannot be
classified as ’sufficiently serious’. Except for one. none
of them was located on a vital part and all of them without
exception were simple in nature, the injuries on the two
deceased persons being in contrast practically all deadly.
13. Thus, the consideration of the ocular evidence
coupled with the testimony of Bhimrao Kadam PW-20 and the
circumstantial evidence, especially the medical part of it,
lead us to an answer in the affirmative to question (A)
posed above.
14. On the question of the participation of the
appellants in the occurrence we have again to proceed with
extraordinary caution in view of the fact that the eye-
witnesses are not only highly interested in exaggerating the
number of the opposite party during the attack but have also
been shown to have scant regard for truth when their selfish
interests so demand. In this view of the matter we consider
it safe to hold that appellants Nos. 1 to 3 are proved
beyond reasonable doubt to have taken part in the fight.
They are not merely named in that behalf by the eye-
witnesses but admit their participation in the occurrence
which is further assured by reason of the fact that all
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three of them were found injured immediately thereafter. The
same is not true of the other three who have denied their
presence at the time and place of the occurrence and about
whose participation in the fight no other assuring factor is
forthcoming. It is true that according to Bhimrao Kadam PW-
20, appellant No. 4 was present at the scene when the abu-
ses were exchanged but that fact is no guarantee of his
participation in the occurrence which took place about a
couple of hours later.
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And no incongruity results from the exclusion of appellants
Nos. 4 to 6 from the fight because the other three
appellants would have as effectively caused all the injuries
found on the two deceased and the two ladies all by
themselves as if they were caused by them with the
assistance of appellants Nos. 4 to 6. In this view of the
matter we are of the opinion that appellants Nos. 4 to 6 are
entitled to the benefit of doubt in the matter of their
participation in the occurrence. We therefore accept the
appeal in so far as they are concerned, set aside the
conviction recorded against and the sentences imposed upon
them by the courts below and acquit them of the charge in
its entirety.
15. The appellants were convicted by the learned
Sessions Judge of an offence under section 148 of the Indian
Penal Code and of two offences of murder under section 302
read with section 149 of the Code. The first offence,
namely, that under section 148 of the Code, falls to the
ground with the acquittal of appellants Nos. 4 to 6, and so
does that under section 149 thereof. It is however quite
clear from the findings arrived at by us, especially those
relating to the nature of the injuries suffered by the two
deceased and the consequences resulting from them that the
two offences of murder were committed by appellants Nos. 1
to 3 in furtherance of their common intention so that each
one of them is liable to conviction on two counts under
section 302 read with section 34 of the Indian Penal Code.
We hold accordingly and sentence each of those three
appellants to imprisonment for life on each count with a
direction that the two sentences of life imprisonment shall
run concurrently. Accordingly, the appeal fails in so far as
they are concerned except in relation to the modification in
the conviction and sentences as directed above.
N.V.R
325