Arijit Pasayat,J. - (1.) Leave granted.
(2.) Challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court, Nagpur Bench, upholding the conviction of the appellants for offences punishable under Sections 147, 148, 302 read with Section 149 of the Indian Penal Code, 1860 (in short the 'IPC'). By the impugned order two Criminal Appeals i.e. Criminal Appeal Nos. 314/2001 and 346/2001 were disposed of. Accused persons are Namdev (A-1), Santosh (A-2), Mangal (A-3), Subhash (A-4) and Sudam (A-6). The High Court by the impugned judgment dismissed the appeals.
(3.) Background facts in a nutshell are as follows: The Complainant-Chandrakalabai widow of Bharat Kharat was a resident of Village Dharkanha. At the time of incident, she was residing with her husband Bharat Mukinda Kharat (hereinafter referred to as the 'deceased') and two sons in the house situated in the village Dharkanha. It is the case of the prosecution that Shivcharan (PW6), son of the Complainant Chandrakala (PW2) as well as Taqnaji, son of Shakuntaiabai, the keep of deceased Bharat and Shakuntalabai were residing in the said house. On the day of incident, Shakuntala was not present as she had gone to Pusad. At that time, work of uprooting the groundnut crop was in progress in the field of deceased Bharat and several persons from village Londhari were working in his field. There was a pit dug in front of the house of Bharat for construction of one room. On 7th June, 1998, at about 1.00 p.m., deceased Bharat and one Tulshiram Vadar had gone to Pusad and returned home at about 7.00 p.m. After that, deceased Bharat was taking meal in his house and Tulshiram went to sleep in front of the house. After some time, at about 8.00 p.m. accused Namdev Tarpe came to the house of the complainant and told Bharat that persons from village Yehala were coming to beat him and he should run away from the spot, or release the dogs. When Bharat came out of the house, five to six persons encircled Bharat in the courtyard of his house and started beating him. They were armed with axes, sticks, crowbars and beat Bharat with the said weapons. When Bharat was being assaulted, he shouted for help loudly saying "Chandrakala, I am dying." The complainant -Chandrakala went to Tulsiram and awakened him. Tulshiram tried to rescue Bharat from the clutches of the accused; but the accused did not allow him to help the deceased. The complainant Chandrakala thereafter went towards the persons of village Londhari and stayed there along with her sons. The assailants also came there and threatened them not to disclose the incident and asked them to leave. The persons from village Londhari thereafter left the place. The accused persons also left the place. The complainant Chandrakala along with her sons went near her husband deceased Bharat and noticed injuries on his person, who had already succumbed to those injuries on the spot. The complainant asked her son Shivcharan (PW-6) the names of the assailants. Shivcharan told her that the assailants were from village Yehala and gave their names as "Namdeo Tarpe, Shamrao Behade, Subhash Behade, Santosh Behade, Sahebrao and one unknown person to whom he knew by face." The complainant along with her sons thereafter went to the house of Police Patil of village Dharkanha and narrated the incident. The complainant stayed there for the night and on the next day, she went to Police Station, Pusad (Rural) and lodged a report. In the report, she mentioned the names of five accused persons and one unknown person. She also stated in the report that accused persons assaulted her husband because one year before the incident, there were murders of one Atmaram and Laxman of village Yehala and in the said crime, her husband deceased Bharat was arrested and, therefore, the assailants for taking revenge of the said murders, and had assaulted Bharat in the incident in question. On the basis of the report lodged by the complainant investigation was undertaken. After completion of investigation charge sheet was filed and as the accused persons i.e. seven in number in two Criminal Appeals before High Court pleaded innocence, trial was held. It is to be noted that A-1 was absconding and therefore separate charge sheet was filed against him. The trial Court placed reliance on the evidence of Chandrakala (PW-2) and Shivcharan (PW-6) and found the accused persons guilty. In appeal, the primary stand of the accused persons was that PWs 2 and 6 being related to the deceased their evidence should not be acted upon particularly when Tulshiram and the younger son of the deceased were not examined. Additionally, it was submitted that in the Test Identification Parade (in short the 'TI Parade') held on 3.8.1998 only two accused persons Sudam and Mangal were identified. Further, the evidence of Shivcharan (PW-6) only relates to accused Shamrao and, therefore, Section 149 has no application. It was also submitted that PW-2 cannot be believed as she did not know the names of the accused persons and the names were told to her by PW-6. The trial Court did not analyse their evidence and held that merely because PWs 2 and 6 were the wife and son of the deceased that did not render their evidence suspect. Additionally, the TI parade was held only in respect of two accused appellants Sudam and Mangal and not in respect of other accused persons as they were allegedly known to the prosecution witnesses. Stand of State was that as others were known, there was no need for TI Parade. The fact situation clearly shows that Section 149 IPC has application. ;