Jaswant Singh, J. - (1.) Vishvas Aba Kurane, appellant in Criminal Appeal No. 166 of 1971 and Akaram Bhairu Kotwal, appellant in Criminal Appeal No. 201 of 1973 (hereinafter referred to for the sake of brevity as "Vishvas" and "Akaram" respectively) who were charged and tried along with three brothers of the latter viz. Mahadev Bhairu Kotwal, Shiva Bhairu Kotwal and Maruti Bhairu Kotwal, and another person named Ibrahim Sayyad Nalband, (here inafter referred to as "Madhadev", "Shiva", "Maruti" and "Ibrahim" respectively) for various offences have on an appeal filed by the State of Maharashtra been convicted by the High Court of Bombay for an offence falling under S. 302 read with S. 34 of the Indian Penal Code and sentenced to imprisonment for life instead of the offence under S. 304 Part I read with Ss. 34 and 149 of the Indian Penal Code for which they were convicted and sentenced by the Sessions Judge, Sangli, The High court has found that the appellants intentionally caused the death of Raghunath Sidu Nikam (hereinafter referred to as "Raghunath"), aged 23, brother of Shankar (P. W. 2) and Jaywant (P. W. 6) in furtherance of the common intention shared by them with Mahadev who has not appealed against his conviction and sentence. Vishvas, appellant and his brother Mahadev have also been individually convicted by the High Court under S. 302 of the Indian Penal Code for the murder of Raghunath and sentenced to imprisonment for life, The sentences imposed on Vishvas, appellant and Mahadve under the aforesaid two counts have been ordered to run concurrently. The High Court having on appeal reversed the order of acquittal of the appellants as indicated earlier and sentenced them to imprisonment for life, they have come up in appeal to this Court under S. 2 (a) of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970.
(2.) The facts and circumstances leading to these appeals are:On May 17, 1968 i.e. two days prior to the incident which has given rise to these appeals, Jaywant (P. W. 6) had gone to see a movie which was to be screened in a local cinema at Shirala in Sangli District. before the commencement of the show, one Abdul Ghani (P. W. 15) pelted a stone at a represetnative of the film distributors which hit Akaram who was standing close to the representative of the film distributors. A scuffle thereupon ensued between Akaram and Abdul Ghani in which Jaywant intervened on the side of Abdul Ghani. In the course of that scuffle, Jaywant and Akaram set upon each other with "chappals". The combatants, however, took their seats as the show started. The tussle which had ceased with the commencement of the show was renewed during the interval when Raghunath deceased, Dinkar, Maruti and Ramchandra Gayakwad (P. W. 3) who were also present in the Cinema Hall intervened and separated Akaram and Jaywant. On May. 18, 1968, another fracas between Maruti and Dinkar, the brother of Shankar (P. W. 2) took place which did not, however, assume a grave turn because of the mediation of a few persons including the brothers of Dinkar. On the fateful evening of May 19, 1968, Jaywant left his house for his field to keep a vigil. On the way, he went to the shop of Babu Ranadive (P. W. 5) to have a "panpatti". While he was proceeding ahead after making the said purchase, Mahadev and Ibrahim made their appearance armed with sticks and mauled Jaywant who somehow managed to extricate himself and run towards the well which was at a distance of few paces to the North of the shop of Babu Ranadive. On reaching near the well, Jaywant cried out that beating had been administered to him. After thus raising an alarm, Jaywant turned back and asked Mahadev and Ibrahim who had by the got near "Shivaji Store" as to why they manhandled him. Thereupon, Ibrahim tried to assault him with a stick but before he could do so, Jaywant lifted him bodily and threw him on the ground. In the meantime, Ramchandra Gayakwad (p. W. 3) who was closeby rushed to the scene and wrested the stick from Ibrahim. At this stage, Vishvas reached the spot armed with an axe and accompanied by Akaram, Shiva and Maruti who were armed with sticks, and administered an axe blow on the left shoulder of Jaywant who thereupon tried to run away to his house but could not escape as Vishvas and Mahadev gave him a blow each with axe and stick on his right fore-arm and head respectively on receipt whereof he became unconscious and slumped in front of the Central Bank building which lies at a distance of nearly 100 feet to the North of Shivaji Stores. Meanwhile on hearing the shouts of some unidentified boy that Jaywant had been assaulted by Mahadev and Ibarahim, Raghunath deceased and his brother, Shankar (P. W. 2) rushed to the Bazar Peth to find out what the matter was. On reaching there and noticing a crowd near the Central Bank building, they hastily moved in that direction. As they got near the bank premises, they saw Jaywant lying on the ground and Mahadev and Ibrahim standing near him. On seeing Raghunath and Shankar approaching, Vishvas, Madhadev, Akaram, Shiva and Muruti dashed towards them. Apprehending that they might also be assaulted, Raghunath and Shankar turned back and stated running towards their house. Their attempt to escape was however foiled by the accused who overtook them near the Post Office which is situate just opposite the "Pan" shop of Babu Ranadive. On getting close to Raghunath and Shankar, Akaram caught hold of Raghunath while Vishvas and Mahade whipped out knives and inflicted injuries therewith on his forehead, back and right thigh. Vishvas and Shiva also caused injuries on the person of Shankar with a knife and a stick respectively. Thereafter a scuffle ensued between Raghunath and Shankar on one side and Vishvas, Mahdadev, Akaran, Shiva and Maruti on the other in which Shankar picked up a stick which was lying near by and used it against some of the accused. Ananda, a cousin of Raghunath, who had arrived at the scene by then was also assaulted by some of the accused. Thereafter all the accused decamped on being told by Vishvas that they had achieved their object. As Raghunath had become unconscious due to the injuries inflicted on him, he was removed by Shankar and Ananda for treatment to the local Government dispensary where he succumbed to his injuries at 9.45 P.M. while he was being examined and treated by the Medical Officer. Stricken by grief Shankar immediately went to the local police station with a view to make a report about the occurrence. On arriving at the Police Station, he found that Shiva had already reached there along with his mother, Jijabai with a view to forestall him and had lodged information (Ex. 57) alleging that while he was near the Pan shop of Babu Ranadive on that very evening at about 8.00 P.M. he was assaulted with sticks by Raghunath and his two brothers, Jaywant and Shankar. As the information given by Shiva, accused did not disclose the commission of any cognisable offence, he was directed by the P.S.I. to approach a criminal court of competent jurisdiction for redress.
(3.) After recording the Vardi (Exh. 9) given by Shankar, the P.S.I. registered a case against all the aforesaid six accused, took Shiva, Mahadev, Akaram and Maruti into custody and seized the clothes worn by them which bore stains of blood. As the aforesaid four accused who were arrested that very night had also some injuries on their person, the P.S.I. sent them for examination and treatment to the Medical Officer of the Government dispensary. During the course of investigation, the other two accused were also arrested, knife (Article 20) produced by Mahadev and two sticks (Articles 23 and 24) produced by Akaram which bore blood stains were seized by the Police and sent for chemical examination to the Chemical Analyser. On completion of the investigation, the accused were proceeded against in the court of competent jurisdiction and committed for trial to the Court of Session where all the accused pleaded not guilty to the charge. In the course of his statement, Akaram admitted the incident which happened at the cinema house on the evening of May 17, 1968. In respect of the incident on the evening of May 19, 1968, th defence of the accused, excepting that of Mahadev was one of the total denial. Mahadev asserted that on the evening of May 19, 1968, while he was at his house, he learnt that his brother, Shiva was being assaulted in front of Shivaji Stores by Nikams, which is the surname of Raghunath deceased and his brothers; that he thereupon repaired to the place and noticed Shankar, Ramchandra, Tukaram Gayakwad, Jaywant and Dinkar assaulting Shiva; that on inquiring from the accused as to why they were assaulting his brother, he was himself assaulted with a stick on account of which he fell down on the ground when several persons who had collected there intervened and rescued him. Akaram, Shiva, Maruti and Ibrahim, accused stated that they also received injuries on the evening of May 19, 1968 at the hands of some persons in the crowd which had collected in the Bazar Peth. Madhadev and Shiva also admitted that their clothes were blood-stained. Mahadev however denied that he produced the blood-stained knife. Likewise Akaram also denied that he produced the two blood-stained sticks.;