PANDURANG CHANDRAKANT MHATRE & ORS. v. STATE OF MAHARASHTRA

Citation: [2009] 15 S.C.R. 58

Court: Supreme Court of India

Bench: D.K. JAIN, RAJENDRA MAL LODHA

Case summary

PANDURANG CHANDRAKANT MHATRE & ORS. v. STATE OF MAHARASHTRA.pdf

Judgment text

[2009] 15 (ADDL. ) S. C. R. 58 PANDURANG CHANDRAKANT MHATRE & ORS. \ v. - STATE OF MAHARASHTRA (Criminal Appeal No. 986 of 2007) ,;' .. ~ ... ~,;,·· . "'" OCTOBER 8, 2009 [D. K. JAIN AND R. M. LODHA, JJ. ] Penal Code, 1860 - ss. 3021149, 3261149 and 148 - Conviction under - Rivalry between two political factions - Accused armed with deadly weapons forming unlawful assembly - Murderous attack on one and injuries to other members - Acquittal by trial court - High Court upholding ...... acquittal of five accused and convicting eight accused u/s. 3021149, 3261149, 148 and imposed imprisonment for life and )- . different period of sentence - On appeal, held: Order of trial court was erroneous - FIR not affected by legal infirmity - Evidence of eye-witnesses corroborated by medical evidence in respect of deceased as well as injuries sustained by them - Proved beyond doubt that eight accused guilty of offences punishable uls. 148 ands.

3261149 - Plea of alibi not proved - Thus, conviction and sentence awarded by High Court against A-2, A-3 and A-12 upheld - Conviction of A-4, A-5, · . \--- A-6, A-10 and A-11 u/s. 148 and 3261149 upheld but that u/ s. 3021149 set aside - Sentence uls. 148 upheld and that u/s. ,, 3261149 modified. , F Two political parties were on inimical terms. On the fateful day workers of rival party armed with deadly weapons assaulted SA, PW-2, PW-4, PW-5, PW-6, PW-7, PW-8 and PW-10-members of other party. SA sustained ·serious injuries and later succumbed to his injuries. Other witnesses sustained injuries. Nineteen persons were tried for offences ulss.. 147, 148, 3021149, 302134, 3071149 and s. 3261149 IPC. Trial court acquitted the appellants. High .. STATE OF MAHARASHTRA f Court upheld the acquittal of five accused and convicted eight accused u/ss. 302/149, 326/149 and s. 148 IPC and imposed sentence of imprisonment for life and different period of sentence under other counts along with fine.

Hence the present appeal. Partly allowing the appeal, the Court "'· ~ HELD: 1. The whole approach of the trial court in -~ consideration of the evidence of eye-witnesses was faulty and flawed. The evidence is independently examined and it is found that the judgment of the trial court acquitting all the accused persons suffered from factual and legal errors justifying interference by the High - · Court in appeal within permissible limits. Thus, the conviction of A-2, A-3 and A-12 for the offence punishable -"" under section 302 read with section 149 IPC and the sentence awarded to them by the High Court to suffer imprisonment for life is maintained. The conviction of A- 4, A-5, A-6, A-1 O and A-11 for the offence punishable under section 302 read with s. 149 IPC is set aside. The conviction of the appellants under section 148 and section 326 read with section 149 IPC is upheld. The sentence awarded to them under section 148 IPC is maintained.

However, substantive sentence for the offence punishable under section 326 read with section 149 IPC is modified and each one of them is sentenced to suffer RI for three years. The substantive sentences shall run concurrently. [Paras 65 and 66] [101-F-H; 102- A-8] 2. 1. First Information Report is not a substantive piece of evidence and it can be used only to discredit the testimony of the maker thereof and it cannot be utilized for contradicting or discrediting the testimony of other witnesses. First Information Report cannot be used with regard. to the testimony of other witnesses who depose in respect of incident. The earliest information in regard to commission of a cognizable offence is to be treated " as First Information Report. It sets the criminal law in motion and the investigation commences on that basis. Although FIR is not expected to be encyclopedia of events but_ an information to the police to be 'first 8 information report' u/s. 154(1) Cr. P. C.

must contain some essential and relevant details of the incident. A cryptic -" 1 information about commission of a cognizable offence ~ irrespective of the nature and details of such information may not be treated as FIR. [Para 29] 2. 2. In the instant case, PW-5 reached the police ,11"station at about 4. 00-4. 15 a. m. He gave information that several persons were assaulting members of their party; that the accused were armed with deadly weapons and ~ that police should immediately leave for the place of occurrence. This information was entered in General Diary of the police station. Based on this information, PW- 18-10 left for the place of occurrence alongwith PW-2 who had also reached the police station by that time. In an incident where large number of accused are involved in assaulting rival village folk, obviously the first task of the Police Officer is to ensure visit to the scene of occurrence . \and provide police help, if necessary.

Rather, it would have been unnatural on the part of PW-18 to have insisted on taking down the entire incident by way of FIR when PW-5 reached the Police Station at about 4. 00-4. 15 A. M. for getting help for the victims. The immediate task for PW-18 was to focus on providing help to the victims who, as per the version of PW-5, were still being attacked. In such a situation, it cannot be said that the moment PW- 18 left the police station, _the investigation had ! -commenced. In the circumstances, FIR is not affected by any legal infirmity. [Para 30] [85-8-C,F-H; 86-A] 2. 3. As regards delayed receipt of the copy of FIR by \ STATE OF MAHARASHTRA the Court of Magistrate on April 12, 1988, the FIR register indicates that copy of FIR was sent to the concerned Magistrate on April 3, 1988 itself. If the evidence of eyewitnesses is found cogent, convincing and credible, the delay in receipt of the copy of FIR by the concerned court would not be of much significance. [Para 31) [86-A-C] .

• 3. 1. The consideration of the evidence of PW-6 and PW-3-watchman, by the trial court, was not proper. The evidence of eye-witnesses-PW-2, PW-4, PW-5, PW-7, PW- 8, PW-9, and PW-10 is broadly corroborated by the medical evidence in respect of the deceased as well as the injuries sustained by them. PW-11-Medical Officer examined PW-2, PW-7 and PW-10 and the injuries sustained by these witnesses is proved by the evidence of PW-11. As regard the injuries sustained by PW-6, PW- 3, PW-4 and PW-8, the injury reports support their version. Examination of PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and PW-10 shows that their presence at the time of incident cannot be doubted. [Paras 44, 36 and 64) [86-C-D; 90-8-C, 101-C-D] Muthu Naicker and Others vs. State of Tamil Nadu (1978) ~ 4 SCC 385; State of U. P. v. Ballabh Das and Others (1985) 3 SCC 703; State of U. P. v. Ram Swarup and Others 1988 (Supp) SCC 262, Referred to. 3. 2.

From the prosecution case, it is clear that the incident took place between the two rival political factions and that all eye-witnesses, except PW-3 and PW-6 belong to victim party. Thus, PW-2, PW-4, PW-5, PW-7, PW-8, PW- 9 and PW-10 can be stamped as interested witnesses. _. , PW-6 deposed that the deceased was son-in-law of his eldest brother and to that extent he is also an interested witness. Before relying upon testimony of these witnesses, adequate assurance from other circumstances or materials is required to be seen. The evidence of such witnesses has to be examined with ,, ' great care and caution to obviate possibility of false ) , implication or over-implication. [Para 48] [93-C-D] ,_ 3. 3. In cases involving rival political factions or group ~ enmities, it is not unusual to rope in persons other than . who were actually involved.

In such a case, court should 1 ~ guard against the danger of convicting innocent persons and scrutinise evidence carefully and, if doubt arises, ' benefit should be given to the accused. [Para 49] [93-E- .. - } F F] . ·-,; 3. 4. Section 149 IPC creates a specific and distinct offence. Its two essential ingredients are commission of an offence by any member of an unlawful assembly and; ~ such offence must have been committed in prosecution • of the common object of that assembly or must be such as the members· of that assembly knew it be likely to be ~ committed. However, where a large number of persons are alleged to have participated in the crime and they are ~ sought to be brought to book with the aid of s. 149 IPC, this Court has applied rule of caution taking into consideration particular fact-situation and convicted those accused whose presence was clearly established and overt acts were proved. [Paras 51 and 53) [94-F-G; 95-E-F] +- ' Masalti vs. State of UP.

(1964) 8 SCR 133; Shere and ~ Ors. vs. State of UP 1991 Supp. (2) SCC 437; Musa Khan & Ors. vs. State of Maharashtra (1977) 1 SCC 733; Nagarjft i' Ahir vs. State of Bihar (2005) 10 SCC 369; Maranadu And Anr. vs. State by Inspector of Police, Tamil Nadu l~J08) 16 sec 529, referred to. 3. 5. Having carefully examined the testimony of eyewitnesses, it is found that prosecution has been able to ;.. establish that party of assailants comprised of more than five persons; that they formed unlawful assembly and that at least five persons chased the deceased and then attacked him. These members of the unlawful assembly . ;. STATE OF MAHARASHTRA , ( who chased and attacked the deceased definitely shared common object of causing murder of SA. [Para 58] [97- ~ F-G] 3. 6. The High Court observed that common object of ...... the said unlawful assembly was to cause grievous hurt. It held that common object of the unlawful assembly was ~ to make murderous attack on the deceased.

At first blush, there seems to be some inconsistency in the { ' judgment but on a deeper scrutiny, it is not found so. For determination of common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly before and at the time of attack is of " relevant consideration. At a particular stage of the incident, what is object of the unlawful assembly is a question of fact and that has to be determined keeping ~ ' in view the nature of the assembly, the arms carried by 0 I the members and the behaviour of the members at or ~(· near the scene of incident. The accused persons ~ (nineteen in number) armed with deadly weapons came to the scene of occurrence sharing the common object of causing grievous hurt to the victim party. A closer scrutiny of evidence shows that A-2, A-3, A-4, A-5, A-6, A- 10, A-11 and A-12 assaulted the prosecution witnesses- ~ some of them sustained grievous injuries.

However, when the deceased and prosecution witnesses ran helter and skelter, at least five members of the unlawful assembly chased the deceased and they attacked him with the weapons in their hand. The purpose and design of these members of unlawful assembly in chasing SA and a murderous assault by them on him may not have been shared by other members of unlawful assembly. In -~ such a case although having regard to facts, the number of participants could not be less than five, it is better to apply rule of caution and act on the side of safety and convict only A-2, A-3, and A-12 under section 302 read with section 149 IPC whose presence as members of party of assailants is consistently mentioned and their overt acts in chasing and assaulting the deceased are clearly proved. A-4, A-5, A-6, A-10 and A-11 get the benefit of doubt with regard to offence under section 302 read with section 149 IPC since evidence against them in chasing and assaulting the deceased is not consistent.

However, all the eight appellants are guilty of the offences punishable under section 148 and section 326 read with section 149, l. P. C. This is proved beyond doubt and the High Court cannot be said to have erred in holding so. [Para 59] [97-G-H(98-A-H;99-A] 3. 7. There is no merit in the plea of alibi set up by A- 2. The plea of alibi set up by A-2 was not even accepted by the trial court. The presence of A-2 in the incident is established. He has been identified holding the iron bar. The prosecution witnesses have given specific involvement of A-2 in the incident. On the basis of the deposition of some of the eye-witnesses, the evidence of DW-1 cannot be said to have been wrongly rejected by trial court as well as by High Court. In cross-examination, DW-1 admitted that there was no supervisor at night on that date.

Original document was not produced and name and designation of the officer who is said to have signed the said certificate was not disclosed nor the person who issued the certificate was produced. As a matter of fact, plea of alibi has not at all been probabilised by A-2 much less proved. [Para 60] [99-8-D] 3. 8. From the p'rosecution evidence it is clearly established that the temple was illuminated due to an:-•.. cal fair and there were other lights at the tempi\:. It was full moon night. The subm1ssion that there was noi enough light at the place of incident and, therefore, the incident could not have been seen cannot be accepted. [Para 61] [99-E-F] 3. 9. The submission that site plan of the scene of . f STATE OF MAHARASHTRA offence could not have been accepted as PW-1 deposed that he prepared the site map as per the information supplied by the police is devoid of any substance. No objection was raised when the said document was being exhibited.

Moreover, the investigating officer has not at all been cross-examined in this regard. [Para 62] [99-G- H; 100-A] Ramratan and others v. State of Rajasthan (1962) 3 SCR . ... 590; Chhotu vs. State of Haryana (1996) SCC Crl. 1161, Held inapplicable. 3. 10. The submission that the High Court was not justified in interfering with the judgment of acquittal as the view taken by the trial court was the possible view cannot be accepted. The view which the trial court took on the basis of the evidence on record is neither possible nor plausible. There could not be more perversity in the consideration of the evidence of eye-witnesses by the trial court. [Para 63] [100-B-C] Mahtab Singh & Anr. v. State of U. P. JT 2009 (5) SC 431; Meharaj Singh (UNk. ) v. State of U. P (1994) 5 SCC 188; T. T. Antony v. State of Kera/a & Ors. (2001) 6 SCC 181; Ramesh Baburao Devaskar & Ors. v. State of Maharashtra ~ (2007) 13 SCC 501; State of Haryana v. Prabhu & Ors AIR 1979 SC 1019; Sarwan Singh & Ors. etc. v.

State of Punjab AIR 1978 SC 1525; Ram Anjore and Others. v. State of U. P. AIR 1975 SC 185; Gokul & Others v. State of Rajasthan AIR 1972 SC 209; Md. Isak Md. & Others v. State of Maharashtra AIR 1979 SC 1434; Ninaji Raoji Baudha & Another v. State of Maharashtra AIR 1976 SC 1537; Nattan v. State of Tamil Nadu AIR 1976 SC 2197; Mariadasan & Others v. State of ~ Tamil Nadu AIR 1980 SC 573; Bharwad Bhikha Natha & Others v. State of Gujarat AIR 1977 SC 1768; Harshadsingh Pahelvansingh Thakore v. State of Gujarat AIR 1977 SC 710 Bhajan Singh and Others v. State of Punjab AIR 1978 SC 1759; Bansropan Singh and Others v. State of Bihar AIR 1983 I .. SC 166 Sarman & Others v. State of M. P. AIR 1 993 SC 400. ; ~ /shwar Singh v. State of U. P AIR 1976 SC 2423; Radhakrishnan Nair v. State of Kera/a 1995 Suppl (1) SCC 217; Chotu v. State of Haryana 1996 SCC (Crl. ) 1161; Palia v. State of Punjab; 1997 SCC (Crl. ) 383; Bathula Nagamalleswara Rao And Ors. v. State rep.

by Public Prosecutor (2008) 11 SCC 722; Mahmood and Anr. v. State of UP. (2008) Crl. Law Journal 696; State of Punjab v. Avtar 'v Singh (2008) 14 SCALE 368; State of Punjab v. Gurdip Kaur }-- (2009) 1 SCC 120; Chandu v. State of Maharashtra 2002 (9) SCC 408; Kashiram & Ors. v. State of M. P 2002 (1) SCC 71; Harijana Thirupala & Ors. v. Public Prosecutor A. P. , Hyderabad 2002 (6) SCC 470; Ram Ratan & Others v. State ... ,..... of Rajasthan 1962 (3) SCR 590; Dharma Rama Bhagare v. State of Maharashtra (1973) 1 SCC 537; Vikram v. State of Maharashtra JT 2007(7) SC 215, referred to. )... Case Law Reference: (1994) 5 sec 188 Referred to. Paras 16, 24 ,,.. ,- (2001) 6 sec 181 Referred to. Paras. 16, 25 (2001) 13 sec 501 Referred to. Paras 16, 26 AIR 1979 SC 1019 Referred to. Para 21 ,.. AIR 1978 SC 1525 Referred to. Para 21 AIR 1975 SC 185 Referred to. Para 21 AIR 1972 SC 209 Referred to. Para 21 .. , ,. AIR 1979 SC 1434 Referred to. Para 21 \. AIR 1976 SC 153". " Referred to.

Para 21 • AIR 1976 SC 2197 Referred to. Para 21 AIR 1980 SC 573 Referred to. Para 21 AIR 1977 SC 1768 Referred to. Para 21 STATE OF MAHARASHTRA AIR 1977 SC 710 Referred to. Para 21 ( AIR 1978 SC 1759 Referred to. Para 21 AIR 1983 SC 166 Referred to. Para 21 AIR 1 993 SC 400 Referred to. Para 21 AIR 1976 SC 2423 Referred to. Para 22 1995 Suppl (1) sec 211 Referred to. Para 22 t 1996 sec (Crl. ) 1161 Referred to. Para 22 1997 sec (Crl. ) 383 Referred to. Para 22 (2008) 11 sec 122 Referred to. Para 22 (2008) Crl. Law Journal 696 Referred to. Para 22 (2008) 14 SCALE 368 Referred to. Para 22 c2009) 1 sec 120 Referred to. Para 22 2001 (13) sec 501 Referred to. Para 22 2002 (9) sec 408 Referred to. Para 22 2002 (1) sec 11 Referred to. Para 22 2002 (6) sec 470 Referred to. Para 22 1962 (3) SCR 590 Referred to. Para 22 (1973) 1 sec 537 Referred to. Para 27 JT 2007(7) SC 215 Referred to. Para 28 1978 (4) sec 385 Referred to. Para 45 (1985) 3 sec 103 Referred to. Para 46 1988 (Supp.

) sec 262 Referred to. Para 47 1964 (8) SCR 133 Referred to. Paras 52, 53 1991 Supp. (2) sec 437 Referred to. Para 54 .. ,_ 1911 (1) sec 733 Referred to. Para 55 -~ 2005 (1 O) sec 369 Referred to. Para 56 2oos (16) sec 529 Referred to. Para 57 1962 (3) SCR 590 Distinguished Para 62 1996 sec Crl. 1161 Distinguished Para 63 " JT 2009 (5) SC 431 Referred to. Para 63 . ,... CRIMINAL APPELLATE JURISDICTION: Criminal Appeal t No. 986 of 2007. From the Judgment & Order dated 10. 4. 2007 of the High Court of Judicature at Bombay in Criminal Appeal No. 132 of 1990. ·• R. Sundravardh_an, A. K. Srivastava, Shekhar Naphade, P. S. Narsimha, Shivaji M. Jadhav, Rahul Joshi, Brijkishor Sah, . ,.. _ Lenin S. Hijam Abdul Tamboli, Rahul Thakur, Naresh Kumar, Santosh Paul, Arvind Gupta, K. K. Bhat, Sriharsh N. Bundela, C. K. Sasi, Sudhanshu S. Chaudhari, Sunil Kumar Verma, Madhavi Divan, Ravindra Keshavrao Adsure for the appearing . ,_ parties. The Judgment of the Court was delivered by R. M. LODHA, J.

1. This criminal appeal by special leave is directed against the judgment of the High Court of Judicature at Bombay whereby the Division Bench of that Court upturned the judgment of acquittal passed by the llnd Additional Sessions Judge, Raigad in respect of the present appellants and convicted them for the offences punishable under Section 302 read with Sectic;;-, 149, section 326 read with 149 and Section ~ 148, IPC and ~entenced them to suffer imprisonment for life t and different period of sentence under other counts along with >-fine and default stipulation. 2. Nineteen persons were arraigned before the Trial Court for the offences under Sections 147, 148, 302 read with I . STATE OF MAHARASHTRA [RM. LODHA, J. ] Section 149, section 302 read with section 34, section 307 read with section 149 and section 326 read with section 149, -( IPC. Trial Court acquitted all of them. The prosecution challenged the judgment of acquittal before the High Court of Judicature at Bombay.

The High Court granted leave to appeal against fourteen accused persons only. As against remaining five accused, leave- was refused. During the pendency -of \ appeal, one of the accused, against whom leave was granted, .. died. Of the remaining thirteen accused, the Division Bench affirmed acquittal of five. The Division Bench convicted eight + accused as indicated above. 3. Before dealing with the points raised in the appeal, it is appropriate to set out very briefly the prosecution case. Phunde, a small village in Taluka Uran, District Raigad, Maharashtra has two groups; one group is politically associated with the Peasants and Workers Party (PWP) while the other group has alliance with the Congress (I) Party. The party of the assailants belong to PWP and the prosecution witnesses belong to •. Congress-I party. The deceased was also a Congress-I party worker. The relations between the two groups due to party politics seem to have been strained for quite some time.

Several criminal cases have been lodged by these two groups against each other. On the outskirts of the village Phunde, there is a temple popularly known as Gurbadevi Temple. The said temple celebrates every year an annual fair with pomp and show; a Jagran is held in the night on the said occasion. On April 2, 1988, the annual fair at Gurbadevi Temple was being. celebrated; the idol was adorned with ornaments and the entire temple complex was illuminated with electric lights. In the night, the villagers gathered in the temple for Jagran. The group belonging to Congress (I) party took active part in the management of the said fair. The celebrations continued until midnight. Thereafter, most of the villagers left the temple. However, 15-20 persons who were in management ofthe said festival stayed back to keep watch over the ornaments adorned by the idol.

Few of those who stayed back were chit-chatting in Sabhamandap, while some of them were simply resting and others kept themselves awake by playing cards. In the intervening night of April 2, 1988 and April 3, 1988 at about 3 - 3. 15 A. M. , Ramesh Mhatre (A-3) came to the temple, had a look around and then left. A-3 did not speak to anybody. About 15-20 minutes thereafter, A-3 returned to the temple with a group of about 20 persons. All of them were allegedly armed with weapons like iron bar, swords, pharashi, sticks etc. As soon as they reached, they are said to have started attacking the people assembled there. Pandurang Chandrakant Mhatre (A-2) -and Ramesh Mhatre (A-3) gave iron-bar blows on the back of Nandkumar Mhatre (PW-2) but he escaped and ran towards the village. The accused persons started shouting 'dhara-dhara' 'mara-mara'.

Then, they assaulted Suresh Atmaram Gharat (deceased), Sudin Mhatre (P\IV-4), Namdeo Mhatre (PW-5), Laxman Mhatre (PW-6), Gopal Thakur (PW- 7), Mahindra Mhatre (PW-8) and Mahesh Bhoir (PW-10). Suresh Atmaram Mhatre, ran towards Uran-Panvel Road but the accused persons chast:J him. Maninath Shanker (A-12) assaulted him with sword. The other accused persons assaulted him with sticks and iron bars. As a result of that assault, Suresh Atmaram Gharat sustained serious injuries. PW-2 rushed towards village and shouted for help by saying that PWP workers were assaulting their (Congress-I) Party members. Hearing this, the villagers rushed towards Gurabadevi Temple. PW-2 then went to Nhava Sheva Police Station where he reached at about 4. 15 A. M. (April 3, 1988).

On reaching at Nava Sheva Police Station, PW-2 found that Namdeo Mhatre (PW- 5) was already sitting in the police station who had conveyed to the police that persons from rival party (PWP) have assaulted the persons from their party and, that arrangements be made in sending the Police Party. PSI Anil Tamaichekar (PW-18) alongwith two police constables and PW-2 ini-mediately left for the temple in a police jeep. On his way to village Phunde, PW- 18 made enquiries from the persons who were crying and he came to know that the injured persons have been taken to Uran Dispensary. When he reached Uran Dispensary, he was informed that seriously injured persons have been sent to Sion Hospital, Bombay. PW-18 then went to the place of occurrence and from there he proceeded for Nhava Sheva Police Station. On his way, PW-18 came across one ambulance carrying injured persons. PW-18 was informed that one of the injured persons viz. , Suresh Atmaram Gharat was dead.

PW-18 and PW-2 then immediately went to Nhava Sheva Police Station. PW-2 lodged the complaint (Exh. 31) based on which a criminal case (C. R. No. 17/88) was registered at 6. 00 AM. on April 3, 1988 for the offences under Sections 302, 147, 148, 149, 323, 114, 307 and 326, IPC. The investigation into the crime was commenced by PW-18; he prepared inquest Panchnama (Exh. 67); spot Panchnama (Exh. 32); and recorded the statements of some witnesses in the vicinity of scene of offence. The investigation was then taken over by Shantaram Waghmare, Assistant Commissioner of Police (PW-17) and 0 changed hands as PW-17 was transferred. As the accused persons were not traceable, the Investigating Officer searched. them vigorously. Six accused persons were arrested on May 26, 1988; nine were arrested on May 28, 1988 and the remaining four were arrested on August 16, 1988.

For the period from May 28, 1988 to August 18, 1988, on different dates at the instance of different accused persons, weapons of assault were recovered. The investigation took long time of about 4-5 months. 4. The postmortem of dead body of Suresh Atmaram Gharat was conducted on April 3, 1988 by Dr. Bhujang Bawa (PW-11 ), Medical Officer, Uran Dispensary. PW-11 also medically examined injured witnesses on the same day; six of them were sent to; the Sion Hospital, Bombay for treatment as they received seri6us injuries. Upon completion of all necessary formalities in the investigation, the Challan was submitted by + the Investigating Officer before the Judicial Magistrate, First Class, Uran against Kamlakar Shrawan Thakur (A-1), Pandurang Chandrakant Mhatre (A-2).

Ramesh @ Raman Chandrakant Mhatre (A-3), Parshuram Chandrakant Mhatre (A- 4), Ashok Yadav Mhat~e (A-5), Damodar Vasant Gharat (A-6), Vinod Trimbak Mhatre (A-7), Prakash Pandurang Thakur (A- ~ 8), Mahesh Pandurang Gharat (A-9), Ramchandra Raghunath Mhatre (A-10), Mahesh Shankar Gharat (A-11 ), Maninath .. -- ~ Shankar Gharat (A-12), Mukund Moreshwar Mhatre (A-13), Ganpat Raghunath Mhatre (A-14), Bhushan Balchandra Mhatre 8 (A-15), Dayanand Mahadeo Mhatre (A-16), Rupendra Shripat Mhatre (A-17), Nitin Kamalakar Thakur (A-18) and Prakash Madhukar Mhatre (A-19). As offences like 302 and 307 were exclusively triable by the Court of Sessions, the Judicial Magistrate, First Class, committed the aforesaid accused persons to the Court of Sessions Judge, Raigad-Alibagh. The. case was transferred to the Court of llnd Additional Sessions Judge, Raigad-Alibag for trial. 5.

PW-11 found following injuries on the body of the deceased : ~ "(1) Incised wound over the left Iliac fossa, vertical skin deep, 8 X % cm. (2) Incised wound over the head 4 cm above the Occipital. > ,) Vertical 3 x % cm. Bone deep (3) C. L. W. over the right upper arm in the middle on lateral side (4 x 4 cm. ) with fracture of the right humerus m/3. f (4) C. L. W. just below the right Tibial Tuberosity 3 x 3 cm. I I Irregular with fracture of Tribia and fibula U/3. (5) C. LW. over the right shin over lower/3 on anterior side 2 x 2 cm. with a fracture of tibia and fibula L/3. ...... (6) Fracture of left Radius and Ulna L/3. " The aforesaid injuries on the body of deceased were found . + ante-mortem by PW-11. 6. Laxman Mhatre (PW-6) was initially taken to the Uran / Dispensary and from there he was taken to Sion Hospital, Bombay on April 3, 1988 itself. He was found to have sustained following injuries (vide Exh. 87) : "(i) CLW (R) FO Region 2" x 1" BO (ii) S/7/D (L) Ulna m/3 no.

DWD CLW 1" x Y2'' SCD L/3rd ulna PW m/3 Ulna clinically# ml 3 Ulna Contamination + (iii) open injury (R) elbow CLW 2" x 1" BO vertically splitting olecranon with impression # (R) trochlea . 1 No DWD ~ (iv) S/7/D (R) Ankle no DWD (v) tenderness (R) gluteal region. ' (vi) No. # spine/pelvis/ribs/clinically x-ray # (L) Ulna m/3; # (R) Olecranon compo vertical; soft tissue (R) ankle injury. " 7. Vithal Pandurang Mhatre (PW-3) was also taken to Sion Hospital, Bombay on April 3, 1988. He was discharged on May 14, 1988. At the time of admission in the hospital, the following injuries were found on his person (Vide Exh. 88) : "(1) Amputation (R) thumb with thumb held by skin tag. (2) l/W (R) thigh subcutaneous deep 1" x Y2" 8. Sudin Mhatre (PW-4) was admitted in Sion Hospital on April 3, 1980. He remained there as indoor patient for three days and was discharged on April 6, 1988.

At the time of his admission in the Sion Hospital, he was found to have sustained the following injuries (Vide Exh. 89) : - "(1) CLW vertex 10 cm (2) Outer table# skull " 9. Mahindra Lalji Mhatre (PW-8) was admitted at Sion hlospital on April 3, 1988 and was discharged on April 5, 1988. 8 At the time of his admission in Sion hospital, he was found suffering from the following injuries (Vide Exh. 90) : ,__ "(1) CLW sintered forehead 1 Yi" (2) CLW occipital 1 Yi" (3) CLW mucosal aspect'lower lip area 1__ (4) Multiple inj on back" 10. Namdeo Yadav Mhatre (PW-5) sustained the following ~ injurie~: "1. Abrasion over the back at lumbar region 2 x 2 cm with irregular margin. 2. Abrasion over Rt. intra-axillary area 3 x 3 cm with irregular margin. 3. Abrasion over the Left elbow jt. 1 x 1 cm irregular in margin. " 11.

Mahesh Kashinath Bhoir (PW-10) was also injured in the incident and he suffered the following simple injuries : "Wheelmark over the Epigastric region 6 x 2 cm vertical with irregular margin. " 12. The prosecution sought to establish its case by + tendering nine eye-wHnesses in evidence, viz. , PW-2, PW-3, PW-4, PW-5, PW-6,· PW-7, PW-8, PW-9 and PW-10. Many of them were injured. The accused persons denied that they had anything to do with the offences charged . . Their defence was ~ ,, that a false case has been made against them by the aforesaid ~\ prosecution witnesses. A-2 pleaded alibi in his defence. ~... _.... ~ 13. The trial court rejected the evidence of eye-witnesses holding that because of a sudden attack, all the prosecution witnesses ran helter-skelter and everybody tried to run away from the accused to save their life and in a situation like this '\, ~ they must not have been in a position to see actually who assaulted them.

The trial court held that the evidence regarding -{ assault on Suresh Atmaram Gharat was not specific and as he (deceased) ran from the temple, the attack on him took place at some distance from the temple and being a night time, none .. ¢. · of the witnesses could see the attack on the deceased from ~ the short distance, say about 5' to 1O'. The trial court observed that although PW-5 reached the Nhava Sheva Police Station ,.. at about 4 to 4. 15 a. m. and gave information about the incident, ·' suffer. imprisonment for life. The High Court also convicted these accused persons for other offences and punished them for lesser sentence with fine and default stipulations. .. 15. Mr. R. Sundaravardan, learned Senior Counsel \ addressed the principal arguments before us on behalf of ~ ... ~,~ appellant nos. 1 to 3. Mr. A. K. Srivastava, learned Senior Counsel made submissions for appellant nos. 4 to 6 and Mr. Shekhar Naphade, learned Senior Counsel argued for appellant. no.. 8. 16. Mr. R.

Sundaravardan, learned Senior Counsel submitted that FIR (A-31) is no FIR in law as it is hit by the }prohibition contained in Section 162 of Cr. P. C. He would ... _.. ,; submit that FIR (A-31) is of doubtful authenticity as it lacks spontaneity and delay in its registration. According to him, FIR ought to have been registered in the first instance on the "'~ ~ information of PW-5 or in any case on the information given by PW-2 at 4. 30 a. m. Instead, PW-18 (10) takes PW-1 to the scene of occurrence, meets the villagers and ambulance on the )I>way, dispatches the dead body to the hospital for the postmortem, goes to the village and thereafter proceeds to the police station along with PW-2 and registers the purported FIR .. (A-31) with coloured version, exaggerated accounts and ·( concocted story against whom the prosecution party has a I I grudge. Learned Senior Counsel also submitted that there was gross violation of Section 157, Cr. P. C.

inasmuch as FIR in the Court was received on April 12, 1988, although the occurrence i ,. ' took place on April 3, 1988. He relied upon ·the decisions of 1 this Court in Meharaj Singh (UNk. ) v. State of U. P. ; T. T. 2 ~ Antony v. State ofKerala & Ors . and Ramesh Baburao '>- 3 Devaskar & Ors. v. State of Maharashtra • The learned Senior Counsel, thus, submitted that there is genuine doubt as to the time, date and manner in which purported FIR (A-31) was .... recorded and police is guilty of having not disclosed the whole correct story to the court. + 17. Learned Senior Counsel would contend that the 1. (1994) s sec 188. 2. (2001) B sec 181. 3. (2007) 13 sec so1. ;, evidence of witnesses, who professed themselves as eye- ~ witnesses deserved to be rejected as they belong to rival political parties in a faction ridden village. Moreover, they are related to each other as well as the deceased.

These witnesses have been examined at much belated stage by police; some of them after nine days. Learned counsel would urge that one or other of these prosecution witnesses are ) themselves accused in sessions case; in some cases accused were witness/complainant against them and some of the 1 prosecution witnesses' parents were convicted for fife. Their testimony is also not corroborated by any doctor from Sion Hospital as no doctor from that hospital was examined and that their evidence suffers from vital contradictions, omissions, exaggerations and improvements. In this regard, the learned Senior Counsel took us through the evidence of PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and PW-9. He also .. ,, submitted that evidence of PW-3, PW-4 and PW-8 is hearsay evidence and, therefore, no evidence in the eye of law. 18.

Learned Senior Counsel vehemently contended that investigation in the present case is an example of one of the most unfair investigation inasmuch as the certificate regarding A-2, as to his . absence from scene though procured by PW- 17, yet, was kept away from the Court. He also cited late ,. , recording of the FIR after having taken several steps of investigation as yet another glaring example of unfair investigation. On top of it, he would submit that FIR reached the concerned court after nine days of incident. 19. Mr. R. Sundaravardan, learned Senior Counsel also contended that plea of alibi set up by A-2 is established by the evidence of DW-1 who is an officer of NAD. Learned Senior Counsel also submitted that from the prosecution evidence, the • doubt about the place of occurrence has not been cleared and that prosecution has failed to establish the availability of adequate light at the site which could have enabled the witnesses in fact see the incident. . ;· ~ ,' . ·~ . ,• 20.

Learned Senior Counsel strenuously urged that the trial court has given cogent and convincing reasons for acquitting ~ ~ the appellants but the High Court without justifiable reasons and, rather, on flimsy grounds interfered with the judgment of the acquittal. 21. Lastly, learned Senior Counsel; without prejudice to the afore-noticed submissions, urged that there was no evidence to show that there was common object of the unlawful assembly to commit murder of Suresh Atmaram Gharat. He invited our ~ - ~ attention to the finding recorded by the High Court at page 39 of the SLP paper book wherein the High Court recorded that common object of the unlawful assembly was to cause grievous ( •, hurt. Learned Senior Counsel would urge that there was no specific evidence to show that Suresh Atmaram Gharat died ... because of any particular blow. According to him, the High .. Court although held that for six injuries on the person of "!

--deceased, as per post-mortem report, nine accused cannot be held guilty yet the High Court came to the conclusion that .... common object of the unlawful assembly was to commit murder. The learned Senior Counsel submitted that when there was doubt as to who inflicted the fatal blow, as in the present case, ·"1' safe course is to convict the accused under Sections 326 or 304 Part-II, IPC. In this regard, the learned Senior Counsel relied upon large number of decisions, viz. , State of Haryana /. 5 ' v. Prabhu & Ors4,' Sarwan Singh &Ors. etc. v. State ofPunjab ; ~ 6 ~ Ram Anjore and Others. v. State of U. P. ; Gokul & Others v. .. . , 7 State of Rajasthan ; Md. Isak Md. & Others v. State of 8 Maharashtra ; Ninaji Raoji Baudha & Another v. State of 9 10 Maharashtra ; Nattan v. State of Tamil-Nadu ; Mariadast':a 4. AIR (1979) SC 1019. 5. AIR 1978 SC 1525 6. AIR 1975 SC 185 }t 7. AIR 1972 SC 209 8. AIR 1979 SC 1434 9. AIR 1976 SC 1537 10. AIR 1976 SC 2197 -,. / / . , & Others v.

State of Tamil Nadu11; Bharwad Bhikha Natha & 12 Others v. State of Gujarat ; Harshadsingh Pahelvansingh 13 Thakore v. State of Gujarat ; Bhajan Singh and Others v. 14 State of Punjab ; Bansropan Singh and Others v. State of 15 16 Bihar ; Sarman & Others v. State of M. P • f 8 22. On behalf of appellant No. 8 (A-12), separate written ---- submissions have been filed. While adopting the arguments 1 advanced by Mr. R. Sundaravardan, it is contended on behalf of appellant No. 8 that the unexplained delay in dispatch of FIR would create suspicion about the contents of the FIR and the evidence of the eye-witnesses. In this regard, reliance has been ~ 17 / placed on: lshwar Singh v. State of U. P ; Radhakrishnan Nair 18 19 v. State of Kerala ; Chotu v. State of Haryanc:i ; Palia v. State 20 of Punjab ; Bathula Nagamalleswara Rao And Ors. v. State .. rep. by Public Prosecutor21; Mahmood and Anr. v.

State of - but an information to the police to be 'first information report' under Section 154(1 ), must contain some e'ssential and relevant details of the incident. A cryptic information about commission of a cognizable offence 31. JT 2007 (7) SC 215 · irrespective of the nature and details of such information may not be treated as First Information Report. The question is: whether the information regarding the incident (Ex. 61) entered in the General Diary of Nhava Sheva Police Station given by PW-5 is the First Information Report within the meaning of Section 154, Cr. P. C. If the answer is in affirmative, obviously First Information Report (A-31) is hit by section 162 Cr. P. C. 30. It is true that PW-5 reached the police station at about 4. 00 - 4. 15 a. m. He gave information that several persons were assaulting members of their party; that the accused were armed with deadly weapons and that police should immediately leave for the place of occurrence. This information (Ex.

61) was entered in General Diary of the police station. Based on this information, PW-18 left for the place of occurrence alongwith PW-2 who had also reached the police station by that time. The circumstances in which PW-18 had to leave before recording a formal first information are obvious as the first priority before him was to control the incident since by that time none had died. In a situation such as the present one, it cannot be said that the moment PW-18 left the police station, the investigation had commenced. The object and purpose of giving information (Ex. 61) by PW-2 was to request the officer in charge of the police station to reach the place of occurrence. No doubt PW- 18 (JO) had left for scene of occurrence on the basis of entry in • the General Diary (Ex.

61) recorded at the instance of PW-5 and he visited the scene of occurrence and dispensary but effectively neither the inquest was carried out before registration of FIR nor any step towards investigation was taken before the lodging of First Information Report (A-31). In an incident where large number of accused are involved in assaulting rival village folk, obviously the first task of the Police Officer (PW-18) is to ensure visit to the scene of occurrence and provide police help, • if necessary. Rather, it would have been unnatural on the part of PW-18 to have insisted on taking down the entire incident by way of First Information Report when PW-5 reached the Police Station at about 4. 00 to 4. 15 A. M. for getting help for the victims. The immediate task for PW-18 was to focus on i providing help to the victims who, as per the version of PW-5, were still being attacked. In the circumstances, FIR (A-31) is not affected by any legal infirmity. 31.

As regards delayed receipt of the copy of FIR by the 8 Court of Magistrate on April 12, ·1988, in the first place Exhibit 84 - FIR register indicates that-copy of FIR was sent to the concerned Magistrate on April 3, 1988 itself. Secondly, and more importantly, if the evidence of eyewitnesses is found cogent, convincing and credible, the delay in receipt of the copy of FIR by the concerned court would not be of much significance. 32. It is, therefore, important to examine whether High Court committed any error in accepting the evidence of PW-2, o PW-3, PW-4, PW-5, PW-6, PW-7, PW-8, PW-9 and PW-10. The learned Senior Counsel criticised the testimony of these eye-witnesses for various reasons viz. , that they belong to rival political parties in a faction ridden village; that they are related to each other as well as deceased and that most of these witnesses themselves have been accused in sessions case and that th.

eir evidence suffers from vital contradictions, omissions, exaggerations and improvements. Before we deal with the evidence of PW-2, PW-4, PW-5, PW-7, PW-8 and PW- 9, we deem it proper to consider the evidence of PW-3 and PW-6 first. 33. Both, PW-3 and PW-6, sustained injuries. PW-6 at the relevant time was a watchman in construction company. His hut was at a distance of 1O' to 15' from the temple. In the intervening night of 2nd and 3rd April, 1988, at about 3. 30 A. M. while he was on duty, he saw 20-25 people, armed with sticks and iron bars entering the Sabhamandap. He also saw the people who were doing Jagran running from the Sabhamandap. Suresh Atmaram Gharat (Deceased) came running to the place near him and he saw that the deceased was being chased by A-1, A-2, A-3, A-4 and A-12. A-12 was armed with sword while others were armed with iron bars and sticks. All of them started attacking the deceased with the respective weapons in their hands. The deceased fell on the ground.

PW-6 deposed that when he went ahead, A-3 gave iron bar blow on his head, A-9 gave iron bar blow on his waist and A-12 gave sword blow on his head but he held both his hands on his head and received the sword blow on his left hand while resisting the blows. PW- 6 deposed that after some time, villagers came and took injured persons including him to Uran Medical Dispensary and from -f there they were taken to Sien Hospital in an ambulance. He remained in Sien Hospital until April 11, 1988. His statement was recorded by the Police on April 16, 1988. The deceased was son-in-law of his eldest brother. The witness has been cross-examined at quite some length and except minor contradictions or omissions, his deposition has not at all been shaken. 34. PW-3, a watchman, was on night duty in one private company at a distance of about 15'. On April 2, 1988 he had gone for his duty at 7. 00 P. M. He saw that there was Jagran at Gurbadevi temple.

The singing and dancing in the temple continued upto 1. 00 AM. and, thereafter, except 18-20 villagers, who stayed back at the temple, all others left. At about 3. 30 AM. , A-3 holding iron bar in his hand started giving blows to him on his left leg. According to him, he resisted the attack but • at that time A-12 came there with the sword and to resist the attack from A-12, he held his right hand on his head but A-12 gave sword blow on his head and his thumb got cut. A-2 and A-3 gave blows by iron bar on his back. He has not given details of attack on others, particularly, the deceased. . 35. The trial court commented on the evidence of PW-3 and PW-6 thus : • "I want to make some comment that what was the business for P. W. 6 Laxman Mhatre and P. W. 3 Vithal Mhatre to leave their place of duty and witness the incident and get themselves involved and injured during the course of incident? When they were doing the job of watchman which is a responsible job, it was not desirable.

for them to leave the place of their employment. In such circumstances there was a risk on their part to loss their job also. It is quite obvious that during the course of the incident both of them had left their place and had also got injured. The first reaction of their employer would be that they would have dismissed them from their job. The watchman would not have risked their job at the cost of the villagers with whom they had no concern. So one part of the matter is that these witnesses must not have left their place and if they had left their place, they are deposing falsely. " 36. We are afraid, the consideration of the evidence of PW-6 and PW-3 by the trial court, particularly in the light of the observations noticed above, was not proper. 37. We shall now examine the evidence of other eyewitnesses. PW-2 is tile person at whose instance FIR was registered.

In his deposition he stated that in the intervening night of April 2 and April 3, 1988, he along with few other persons were waiting in the temple for Jagran. A-3 came to the temple at about 3 to 3. 15 AM. and after having a look at the place, he left immediately. After about 10-15 minutes, A-3 f returned alongwith 15-20 other persons. Those persons were known to him as they belonged to the same village. A-3 and the other persons accompanying him were holding weapons ,. like iron bars, sticks, rods, swords and they started assaulting those who were present in the Sabhamandap. A-2 and A-3 were holding iron bars and they assaulted him on his back. He managed to. escape from the said place and went towards village and while going he saw that A-1, A-2, A-_3, A-4, A-12, A-13 and A-18 were armed with weapons. 38. PW-4 has also narrated the incident in a similar way.

According to him, in the intervening night of April 2 and April 3, 1988, while he was sitting in the Sabhamandap, he was l r' assaulted on his head from the back side. He fell down and -- ; 37. (1977) 1 sec 733 38. (2005) 10 sec 369 ·. 39. (2008) 16 sec 529 "........ For determination of the common object of the unlawful assembly , the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful.

Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render 0 an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti. " ' 58. Having carefully examined the testimony of eyetwitnesses. we find that prosecution has been able to establish that party of assailants comprised of more than five persons and that they formed unlawful assembly. It is also seen from the evidence that at least five persons chased the deceased and then attacked him.

These members of the unlawful assembly who chased and attacked the deceased definitely shared common object of causing murder of Suresh Atmaram Gharat. A-1 had died during pendency of the appeal before High Court • and, therefore, nothing further needs to be said about his role. 59. The High Court in para 36 of its judgment observed that common object of the said unlawful assembly was to cause grievous hurt. A little later in para 37, the High Court held that common object of the unlawful assembly was to make murderous attack on the deceased. At first blush, there seems , to be some inconsistency in the judgment but on a deeper scrutiny, we find that it is not so. It is well-known that for determination of common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly before and at the time of attack is of relevant consideration.

At a particular stage of the incident, what is object of the unlawful assembly is a question of fact and that has to be determined keeping in view the nature of the assembly, the arms carried ~ by the members and the behaviour of the members at or near the scene of incident. The accused persons (nineteen in number) armed with deadly weapons came to the scene of occurrence sharing the common object of causing grievous hurt to the victim party. A closer scrutiny of evidence shows that A- 2, A-3, A-4, A-5, A-6, A-10, A-11 and A-12 assaulted the prosecution witnesses - some of them sustained grievous ~ injuries - and the deceased. However, when the deceased and prosecution witnesses ran helter and skelter, at least five members of the unlawful assembly chased the deceased and they attacked him with the weapons in their hand.

The purpose and design of these members of unlawful assembly in chasing Suresh Atmaram 9harat and a murderous assault by them on him may not have been shared by other members of unlawful assembly. In a case such as the present one, although having "" regard to facts, the number of participants could not be less than five, it is better to apply rule of caution and act on the side of safety and convict orily A-2, A-3, and A-12 under Section 302 read with Sect:cm 149 l. P. C whose presence as members of party of assailar. ts is consistently mentioned and their overt acts in chasing and ::;;:;saulting the deceased are clearly proved. A- 4, A-5, A-6, A-10 and A-11 get the benefit of doubt with regard to offence under Section 302 read with Section 149 l. P. C. since 1 .. evidence against them in chasing and assaulting the deceased is not consistent. However, all the eight appellants are guilty of the offences punishable under Section 148 and Section 326 read with Section 149, l. P. C.

This is proved beyond doubt and i the High Court cannot be said to have erred in holding so. ·so. In what we have already discussed above, we see no merit in the plea of alibi set up by A-2. The plea of alibi set up by A-2 was not even accepted by the trial court. The presence of A-2 in the incident is established. He has been identified holding the iron bar. The prosecution witnesses have given specific involvement of A-2 in the incident. On the basis of the , "'1 deposition of some of the eye-witnesses, the evidence of OW- 1 cannot be said to have been wrongly rejected by trial court as well as by High Court. In cross-examination, DW-1 admitted that there was no supervisor at night on that date. Insofar as, document Article-8 is concerned, suffice it to observe that original document was not produced and name and designation of the officer who is said to have signed the said certificate was not disclosed nor the person who issued the certificate was produced.

As a matter of fact, plea of alibi has not at all been probabilised by A-2 much less proved. 61. Although, on behalf of the appellants it was sought to be argued that there was tack of tight on the day of occurrence and, therefore, it was not possible for the witnesses to see the incident. However, from the prosecution evidence it is clearly established that the temple was illuminated due to annual fair and there were other lights at the temple. It was full moon night. We find it difficult to accept the submission of the appellants that there was not enough light at the place of incident and, therefore, the incident could not have been seen. 62. On behalf of appellant no. 8 (A-12), it was contended that site plan of the scene of offence could not have been accepted as PW-1 deposed that he prepared the sight map as per the information supplied by the police. The contention is devoid of any substance.

As a matter of fact, no objection was raised when the said document was being exhibited. Moreover, the investigating officer has not at all been cross- examined in this regard. The decisions namely Ramratan and 41 others v. State of Rajasthan, ·Chhotu vs. State of Haryana ~ have no application in the facts of the present case. 63. It was· contended that the High Court was not justified in interfering with. th~ judgment of acquittal as the view taken by the trial court was the possible view: Reliance, in this connection, was placed on a recent decision of this Court in 2 Mahtab Singh & Anr. v. State of U,'P • The argument is only noted to be rejected. The viewwhich the trial court took on the basis of the evidence on record is neither possible nor plausible. - There could not be ·more perversity in the consideration of the evidenc~ of eye-witnesses by the trial court when it observed : ".... :....

All the witnesses deposed that they were lying or chit-ch~tting or ju~t ~esting or playing cards in the t~mple at the time of the mc1dent. It has also come on record that after the function was over at about 1. 00 a. m. the prosecution witnesses remained in ttle temple for the purpose of 'Jagran'. All this shows that the prosecution witnesses . must not be in a position to see who actually assaulted them. This is a broad picture that is projected by the evidence of all the eye witnesses. In such state of physical and mental tiredness, no witness will be able to } tell specifically who actually assaulted him unless he sees from a very short or negligible distance, the attacking persons. Same thin can be said about the attack on Suresh Atmaram Gharat who is reported dead because of the incident. The evidence regarding assault on him is not at all specific.

It is in short the evidence of all the prosecution witnesses that Suresh Atmaram Gharat ran from the temple with the fear of his life and he was chased 40. (1962) 3 SCR 590 41. (1996) sec Crl. 1161 42. JT (2009) (5) SC 431 by the accused and was attacked at some distance near 1 Uran Panvel road from the temple. It is an -admitted position that it was night time. It is also proved fact that Suresh was caught by the accused at a considerable distance from the temple. None of the witnesses saw the attack on Suresh, by the accused from a short distance 8 say of about 5' to 1O'. This is natural because every prosecution witness was engaged and worried about his own life. So it is but natural that every witness should be -< running to safeguard his own life first and when he is in such state of mind, it is not at all possible to specify which accused gave blows to Suresh Atmaram Gharat on what part of his body and with what weapons. " 64.

With regard to evidence of PW-3 and PW-6, we have already noticed the reasoning of trial court in the earlier part of ~ our judgment and, in our judgment, consideration of their evidence by the trial court was not proper. 65. The least that can be said is that the whole approach of the trial court in consideration of the evidence of eyewitnesses was faulty and flawed. We have independently examined the evidence for our satisfaction and we find that the judgment of the trial court acquitting all the accused persons suffered from factual and legal errors justifying interference by ~ the High Court in appeal within permissible limits. 66. In the result and for the reasons stated, the appeal is allowed in part.

The conviction of Pandurang Chandrakant Mhatre (A-2), Ramesh alias Raman Chandrakant Mhatre (A- 3) and Maninath Shankar Gharat (A-12) for the offence punishable under Section 302 read with Section 149, IPC and the sentence awarded to them by the High Court to suffer ~ imprisonment for life is maintained. The conviction of Parshuram Chandrakant Mhatre (A-4), Ashok Yadav Mhatre (A- 5), Damodar Vasant Gharat (A-6), Ramchandra Raghunath Mhatre (A-10) and Mahesh Sha11kar Mhatre (A-11) for the offence punishable u11der Section 302 read with 149, IPC is .. _ set aside. The conviction of the appellants under Section 148 and Section 326 read with Section 149 IPC is upheld. The sentence awarded. to them under Section 148 IPC is maintained. However, substantive sentence for the offence punishable under Section 326 read with Section 149 IPC is modified and each one of them is sentenced to suffer RI for three years. The substantive sentences shall run concurrently. The bail bonds of A-4. A-5.

A-6, A-10 and A-11 are cancelled. They will now surrender within one month and undergo remaining part of the sentence. if any. N. J. Appeal partly allowed.