KOSHAL, J. - (1.) 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 belonging 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 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 resell the land to the deceased. The deceased were related to five of the eye-witnesses as would appear from the following pedigree-table: JUDGEMENT_288_SUPP1_1980Image1.jpg The relationship inter se between accused-appellants 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: JUDGEMENT_288_SUPP1_1980Image2.jpg 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. 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 mid-day 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 buses 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 Prosecution witness 20 who hails from another village lying about a mile away and who was then returning home from his field intervened, separated them, disarmed the two deceased and throw 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 bearing them with their respective weapons. Lakshmi Prosecution witness 10 and Droupadi Prosecution witness 11 intervened and received injuries at the hands of the accused. In the meantime Bhimrao Prosecution witness 13, Uttam Prosecution witness 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 the 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 Prosecution witness 12 which forms the basis of 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 Prosecution witness 24 arrested Bhimrao appellant No.1. Lakshmi Prosecution witness 10 was examined on the date of the occurrence itself by Dr. Bhaskar Prosecution witness 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" x 1/4". Droupadi Prosecution witness 11 was examined by another doctor on the same day but he was not produced at the trial for the reason that he had in the meantime been transferred to Nagpur. She was examined again on the 18th of November, 1974, by Dr. Shridhar Prosecution witness 14 who found that on the mid-outer aspect of her left high was located a blue-black discolouration having a probable duration of eight days. Bhimrao Prosecution witness 12 was examined by Dr. Kantilal Shah Prosecution witness 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 contused lacerated wounds located over the same area, two contusions and an abrasion. The same doctor examined Uttam Prosecution witness 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 Prosecution witness 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 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 Prosecution witness 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 haemotoma 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 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 fronto-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.
(3.) 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 Abasaheb 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. Lakshmi and Droupadi were by their side. The accused 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 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. Niwas 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 I 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. 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 he 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.;