BHIMRAO ANNA INGAWALE AND OTHERS v. STATE OF MAHARASHTRA

Citation: [1980] 3 S.C.R. 309

Court: Supreme Court of India

Bench: R.S. PATHAK, A.D. KOSHAL

Case summary

The prosecution alleged that on the fateful day, in the morning there was a dispute and altercation between the two deceased and the appellants. I to 6 were charged and convicted for two offences under oection 302 read with section 149 and one under section 148 of the Indian...

Judgment text

BHIMRAO ANNA INGAWALE AND OTHERS v' STATE OF MAHARASHTRA April 2, 1980 ' (R. S. PATIIAK AND A. D. KOSHA!. JJ. j " ft/tdian P e 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 pl! rticipation of all the acCUBed in the occurrence was natural El. nd probable, that the party of the accused were able to inflict serious injuries on their opponent~ ·and themselves escaped with core1paratively a mild beating and th&t therefore, there was no right of private defence available to the appellants. On this finding the Sessions Judge con· victed and sentenced the six appellants. The appeal to the High Court was heard by a Division Bench, but on eccount of difference of opinion among the Judges. the matt. er 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 th:e same conclusion as the Sessions Judge, the third Judge come to the finding that there was no reliabl~ evidence to support he prosecutlon case that the accused were the aggre. s_,ors. In the appeals to this Court on the questions: (a) Whether the prooecution had proved beyond reasonable doubt that the party of the appellants were tbe aggre&&0111 and whether it wii. s made out from the records that the latter mllY . 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 wiUI 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.

[323EJ (ii) The occurrence admittedly took place on the road in between the respective houses of the deceased and the appellants which is fully made out f:tiom the deposition of PW 20 who is no doubt a wholly independent and reliable Witness. He ~ attracted to the place of occurrence by a not"te which reached him in his field after he had gone there subsequent to his witnessing the three brothe"' of the deceased running towards their house. The circumstance that their other two injured brothers were also found lyiii. g on the road lends further strength to the conclusion that the occurrence took place on the road lllIIMRAO ANNA V. MAHARASHTRA 311 itself and not at the house of the appellants. It may also be safely 1168umed, apart from the fact that all the prosecution witnesses say so, that PW's 12, 13 and Jayakar were not with the deceused at the inception of the fight and were, on the other band, working in their fields.

[320 D-G] (iii) H the party of the deceased were the aggressors and had made concerted attack on the appe11ants who Were taken una~·res there is no reason why the former should ! :lave conie 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 lllllkes it highly probable that it WM they who were taken unawares and had to bear the brunt of the attack which they had perhaps no means to repulse.

(321 Bl (iv) The fact that the women-folk of the deceased were elso injured during the oceumncc makes it probable that the ladies had to intervene because the fight WM unequal and their respective husbands found it difficult to cope with i~ [321 GJ (v) Another inference which may well be drawn from the consequences of tbe combat is that PWs 12 and 13 and their brother Jayakar probably reached the place of occurrence while their brothers were being belaboured and that it wu a-t this stage that the three new--comerB entered the arena and took up cudgels on behalf of their hapless family members. [321 Dj 0 (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 doell 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 good nuon merely for the court to be put on gnard and sift the evidence with ectnordinary caution and to accept those pOrtions of -it which appear fully trmtwortby either intrinsically or by reason of corroboration from other tru! lworthy sources. [321 Gl (vii) The road has a width of only 14 feet and if two opposing parties . consistiq in all of six to ten persons, engage themselves in violence against each other, f. he exact place where the members of each would be Injured may not melJ1 BDything especially if one of the parties is tnkcn unawares and is unarmed. f323 Bl 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 dec. etlfSed persons being in contrast practically all deadly. 1323 DJ (b)(I) Appellants N06.

4 to 6 are entitled to the benefit of doubt in the 111atter of their participation in the occurrence. [324 BJ (b)(ii) Appellants Nos. I to 3 aro proved beyond reasonable doubt to 'have taken part in the fight. They ll ed with comparatively a minor beating. There was thus no right of private defence available to the accused. ,... ,,. l BHIMRAO ANNA v. MAHARASHT. RA (Koshal, /,) 319 A. (g) Bhimrao PW-12 and Uttam PW-13 reached the place of occurrence after the fight between the party of the accused on the ono 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 1 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 J 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 ia 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 opponents. (e) Appellants Nos. l' 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 _·:-,· 'A 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 lenatJi 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 ~xercise of the right of private defence? ·c (B) If the answer to question (A) is in the affirmative, whether the participation of all the appellants in the " "t 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 i D Apte, JJ. , and we shall record our reasons briefly. The occurrence . ¥" admittedly took place on the road in between the respective houses h of the deceased and the appellants which is fully made out from the 1 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 thatBhimraopW-12, Uttam PW-13 and their other two injured brothers were all lying j; 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 prn- ' . bability neit~er of the~. co. uld h~ve moved a step befor~ falling do~ j/ after the receipt ofthe mJuries which were detected on their dead bodies by Dr. Digambar Joshi PW-15. We have to take it for granted therefore 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 occur. rence took place on ,.... · '·. G 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 in their fields. This follows from the testimony of Bhimrao Kadam PW-20 which bears repetition on the point. He stated that while he II was returning from his house to the fields at 2 ·30 or 3P. M. he found. the three brothers of the deceased 'running' which obviously mean .. ,-"'>•. BHIMRAQ ANNA v: MAHARASHTRA (Koshal, 1. ) 321 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 ofevents by Bhim· rao Kadam PW-20. Another very decisive circumstance is the nature of the injuries receiv.

ed by the two contending parties. If the party of thedeceased 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 practicaUy 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 tlieir womenfolk were also injurea 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 theplace of occurrence while their brothers were ·being belaboured and that it was at th.

at 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 explain! l(l. 11. It is true, as pointed out by Sawant, J. , as well as the learned Sessions Judge, that the eye witnesses have improv~d 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 rorroborated 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 those portions of it which appear fully trustworthy either intrinsically or by reason of corroboration from other trustworthy sources. And R that is how we have accepted the eye-witness account in part as stated above. 322 SUPREME COURT REPo:RTS U980] 3 S~C. R. 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 hy the eye-witnesses on the earlier story and the dragging incident was in. troduced 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 Bhimra0 Kadam PW-20 when he remarkyd that the fight took place "immediately after" the exchange-of-abusesincident 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 immeqiately 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.

" -- - The ~words "I 'immediately started ctowards my field" have no connection whatsoever with the incident in which abuses were exchanged. Jn 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 Aield, that he left after the incident and that he met Uttam, Bhimrao and Jayakar "while I was again going back-to my field. " The infe- ' rence is clear that after the incident in which abuses were exchanged, the witness had gone home to his village which lies at a distance ofabout a mile from the place of occurrence and that he was again returning t 0 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 otthe 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 cirn ! 'cuinstance that "the bodies of the inj'! red were found nearer the house - ef the accused than the house of the deceased". It is true that Bhimrao Kadam PW-20 did assert : - - l! HIMRAO ANNA v. MAHARASHTRA (Kos? uil, !. ) 323 "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 cof his conclusion that the accused appeared to have acted in exercise ofthe right of private defence was that they too "received iajuries 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 evideuce, especially the medical part of it, lead us to an alliwer 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 thatJhe eye-witnesses are not only highly interested in r exaggerating the number of the opposite party during the attack but • have also ~n 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 occur- . - rence which is ftlrther assured by reasonofthe fact that all three ofthem were found injured immediately thereafter. The same is not true of the other three who have deni~d 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 abuses were exchanged but that fact is no guarantee of his participation r in the occurrence which took place about a couple of hours later• 324 SUPREME COURT REPO'RTS [1980] 3 S. C. R. And no incongruity results from the exclusion of appellants Nos.

4 to 6 J from the fight because the other three appellants would have as effec- ~ tively cau~ed all the injuries found on the two deceased and the two ladies all by themselves as if they were cauSed by them with the assis- ~ tance 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 B 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 -+ ,c of an offence under section 148 of the Indian Penal Code and of two offences ofmurder under section 302 read with section 149 ofthe Code. The first ol):'ence, 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 findjhgs arrived at by us, especiaUy those relating \o the nature of the in- D juries 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 B 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. K;