P. Venkatarama Reddi, J. - (1.)The appellant along with nine others faced trial before the Court of Sessions for Greater Bombay on the charges under Sections 143, 144, 302 read with Section 149 and 326 read with Section 34 of IPC for committing the murder of one Prakash Gopal Kackar on the night of 12th February, 1981 and for causing injuries to five others who are prosecution witnesses 3 to 7. Amongst those injured witnesses, excepting PW. 7, others are close relations of the deceased living in the same or opposite house i.e. at Khatkar Chawl Nos. 1 and 2. Hanuman Nagar, Ghatkopar. P.W. 7 was the neighbour. Learned Addl. Sessions Judge acquitted all the accused. On appeal by the State, the High Court convicted the appellant for the offence under Section 302, IPC and sentenced him to life imprisonment and to pay a fine of Rs. 500/-. Three other accused who are not appellants before us were held guilty of the offence under Section 324, IPC read with Section 34, IPC. Accordingly, the States appeal was allowed. As the High Court found that only four persons including the appellant participated in the attack, it excluded the applicability of Section 149, IPC.
(2.)The incident had taken place on the night of 12th February, 1981 outside and within the house of the deceased and the prosecution witnesses. The appellant-accused was also resident of the same locality. According to the prosecution there was enmity between the deceased and the family of the appellant which is borne out by certain events that occurred in October, 1978. On 11th February, 1981 i.e., the day previous to the date of offence the accused 1 to 6 (appellant being 5th accused) hurled abuses at the deceased and his family members in front of his house. On the date of incident at about 8.30 p.m. as the deceased was entering the bye-lane reaching to his chawl, the accused persons were pelting stones on the chawl and also hitting the windows with sticks. They were armed with different weapons like Farshi, Gupti, Iron Bars and sticks. Soon thereafter, they surrounded the deceased Prakash Khatkar and began to assault him. He was initially assaulted with Farshi by the first accused (brother of the appellant). When he fell at the steps leading to the chawl, the appellant pierced Gupti into the stomach of deceased. He was also assaulted by other accused with the weapons in their hands. When the family members of the deceased intervened, they were not spared. The accused assaulted the brother of the deceased (PW. 6), his mother (PW. 3), his sister (PW. 4) and his brothers wife (PW. 5) inside the house. PW. 7 who was the neighbour was the last person to be attacked by the appellant. Injuries were inflicted on PWs. 3, 4, 6 and 7 by the accused party. P.W. 2 the brother of the deceased took the deceased and other injured to the hospital along with a constable (PW. 9) and he lodged FIR on the same night. PW. 11 held the post-mortem examination of the dead body of Prakash Katkar. PW. 18, the R.M.O. of the hospital apart from noting the injuries on the deceased, examined the other injured and issued wound certificates.
(3.)On reappreciation of the evidence, the High Court found that the acquittal of all the accused was unjustified. In short, the High Court recorded its views as follows :
"In our view, the learned judge has wrongly discarded the evidence of all the eye-witnesses on the ground that they are members of one family and have tried to give the minute details of the incident, though it is observed by him that being the relations of the deceased by itself would not be the ground to discard the evidence of eye-witnesses. Although there was sufficient light according to the learned Judge at the place of incident and undisputedly the place of incident was in and near the house of the witnesses at night time when all the witnesses were supposed to be in their house, their evidence has not been believed. The FIR was lodged immediately after the incident by the brother of the deceased. After going through the evidence of the eye-witnesses and other witnesses we are of the view that some of the accused are liable to be convicted".