- (1.) In Sessions Case No. 233 of 1979, 12 persons were tried by the Additional Sessions Judge, Thane for rioting, committing murder and other allied offences. Of them 2 were acquitted and the other 10 (who were arrayed as accused Nos. 1 to 10 and henceforth will be so referred to) were convicted under section 148 I.P.C. Besides A-1 to A-3 were convicted under section 302/34 I.P.C. and the remaining 7 under sections 324/149 and 323/149 I.P.C. Against their convictions and sentences, A-1 to A-10 preferred an appeal which was disposed of by the High Court, by affirming their convictions, maintaining the sentences awarded to A-1 to A-3 for their convictions under sections 302/34 and 148 I.P.C. and reducing the substantive sentences of the remaining 7 to the period already undergone and imposing a sentence of fine. Assailing the above judgment of the High Court, only A-1 to A-3, filed this appeal after obtaining special leave. During the pendency of this appeal A-1 died and hence the appeal so far as he is concerned stands abated.
(2.) The prosecution case as unfolded during trial is as under : (a) Kathod (P.W. 3) has three sons named Anant (P.W. 2), Krishna and Haribhau (the deceased). Rama (P.W. 1) and Bama (P.W. 4) are the sons of Barku, brother of P.W. 3. A-1 to A-10 are also related to each other. The agricultural land belonging to the family of P.W. 1 adjoins that of Tukaram (A-5). As the land of A-5 is on a level lower than that of P.W. 3, during monsoon the accumulated rain water of the land of P.W. 3 flows down to the land of A-5. (b) On June, 23, 1978 at or about 9.00 A.M. when P.W. 2 went to plough their land, he found that it was submerged in water. He then removed a portion of the bund of the land as a result whereof the discharged water started flowing into the land of A-5. Seeing the water flowing into his land A-5, who was then present there, took exception to such discharge of water; and over this issue, a quarrel ensued between P.W. 2 and A-5. Ultimately, however, A-5 changed the flow of water by closing the bund and the water started flowing through the land of P.W. 2. P.W. 2 then left the place in a huff and reported the incident to his family members. (c) On the following day, i.e., June 24, 1978, at or about 7.30 A.M. when P.W. 1 was returning from the field after answering the call of nature and had reached near the Primary School building, he found all the accused present there armed with sticks. Seeing him they threw a challenge that they were prepared to fight and asked him to call his associates. Immediately thereupon A-4 and A-6 struck P.W. 1 with their respective sticks. P.W. 1 then raised shouts and hearing the same Anant (P.W. 2) Haribhau (the deceased), Kathod (P.W. 3), Bama (P.W. 4), Harish Chandra (P.W. 5), Moti Ram (P.W. 6) and one Gopinath Powers rushed to his rescue the accused then started beating them also with their sticks. In the meantime, Pundalik (P.W. 10), Vishnu (P.W. 12) and other villagers gathered there and stopped the assault. It was then found that Haribhau and P.W. 4 were lying on the ground with serious injuries on their heads and other parts of the bodies. The other persons who sustained injuries at the hands of the appellants were the above witnesses. Haribhau was immediately taken to Central Hospital, Ulhasnagar where he was admitted as an indoor patient. At or about 8 A.M. P.W. 1 went to Hill Line Police Station, Ulhasnagar and lodged a report about the incident. On that information a case was registered and P.S.I. Kamble (P.W. 21) took up investigation. (d) Dr. Datte (P.W. 22) examined Haribhau at 9.15 A.M. but within two hours he succumbed to his injuries. After inquest was held on his dead body by P.W. 21, P.W. 22 held the post-mortem examination. On completion of investigation P.W. 21 submitted charge-sheet and in due course the case was committed to the Court of Session.
(3.) The accused pleaded not guilty to the charges levelled against them. Their specific defence was that on the day in question, A-5 was going to his field he was assaulted by the prosecution witnesses on account of the incident that took place on the previous day over the flow of the rain water. It was their further defence that A-1 to A-2, A-4 to A-7 and A-10 were also assaulted by the complainant party. In support of their case they exhibited the first information report that A-5 lodged against some of the members of the complainant party and further brought on record the fact that on completion of the investigation in that case 11 persons, including some of the prosecution witnesses, were charge-sheeted and subsequently committed to the Court of Sessions to stand trial under sections 148, 323, 324/149 and 302/149 I.P.C.;