MANOJ ALIAS BHAU Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The three appellants, who are accused Nos. 1, 2 and 3 respectively, along with 3 others who have not preferred any appeal were tried by the learned Additional Judge, Nagpur in Sessions Case No. 70 of 1990 for the offences punishable under Sections 147, 148 and 302 read with section 149, Indian Penal Code on the allegation that they formed an unlawful assembly and mercilessly assaulted deceased-Raju by means of gupti, knife, hockey sticks and motor-cycle chain on account of which Raju succumbed to injuries sustained by him. The learned Sessions Judge on the basis of the prosecution evidence convicted all of them under Sections 147, 148 and 302 read with Section 149, Indian Penal Code and sentenced them to suffer R.I. for one year and to pay a fine of Rs. 100/- and, in default to suffer R.I. for one week for conviction under Section 147, and for Section 148 sentenced each one of them to suffer R.I. for two years and to pay a fine of Rs. 100/- each and, in default to suffer R.I. for one week and imprisonment for life for the conviction under Section 302 read with Section 149, I.P.C. with the further direction that the sentences would run concurrently. Against the conviction and sentences two Criminal Appeals were preferred; one by the present appellants which was registered as Criminal Appeal No. 237 of 1991 and the other by the rest 3 accused persons which was registered as Criminal Appeal No. 227 of 1991 and both the appeals were heard and were disposed of by the common impugned judgment and the learned Judges of Bombay High Court, Nagpur Bench, dismissed both the appeals and maintained the conviction and sentences imposed upon the accused persons. As has been stated earlier, only 3 of the appellants have preferred the appeals whereas other 3 accused persons have not preferred any appeal.

(2.) The prosecution case in nutshell is that the 3 appellants are all brothers and the other 3 accused persons who have not preferred any appeal are their friends. The appellants have their houses in front of the house of deceased-Raju. The appellants belong to one political organisation called 'Chhatrapati Sena' and deceased-Raju also was a member of the said organisation. But during the election of Legislative Assembly in the year 1989 deceased-Raju carried the propaganda for the candidates belonging to Congress (I) and on account of this incident the relationship between the accused persons and deceased-Raju was strained. On 18-4-1990 at about 9.00 p.m. while deceased and his parents P.Ws. 1 and 8 and one Pitamber were sitting on the terrace of their house accused Nos. 1 to 6 came out of the house of accused No. 4 and went to the house of one Shrikhande which is in fact right in front of the house of deceased-Raju. All of them then entered into the courtyard and abused Raju and challenged him to come down to the courtyard. When Raju came down. Accused No. 4 caught hold of the right hand of deceased and dragged him outside the courtyard whereafter all of them together took him to the front house of Shrikhande. Accused No. 1 was holding a Gupti, accused No. 2 was holding a stick and accused No. 3 was holding a motorcycle chain while accused No. 4 was having a hockey stick and accused Nos. 5 and 6 were having knife with them. As per the prosecution case the accused persons surrounded deceased-Raju and assaulted him by giving blows with the weapons in their hands on account of which Raju fell down on the ground but notwithstanding the same the accused persons continued inflicting blows on him as a result of which he died on the spot. It is also the prosecution case that P.Ws. 1 and 8 followed Raju and when P.W. 8 requested the accused persons not to assault Raju she was pushed aside. After the accused persons left the scene of occurrence the parents of the deceased cried for help when people from the village gathered and then father of the deceased, P.W. 1 went to the Police Station and lodged a report which was treated as First Information Report - Exhibit 21. The police then registered the case and started investigation and after completion of investigation submitted the charge-sheet. The case was then committed to the Court of Session and the accused persons were tried, as already stated. The post-mortem report Exhibit 27 and the evidence of the doctor who conducted the autopsy over the dead body P.W. 2 indicate that the deceased had as many as 17 external injuries and injuries Nos. 1, 2 and 3 were sufficient in the ordinary course of nature to cause death individually or collectively. The injuries were ante-mortem in nature. This conclusion of the learned Sessions Judge, as affirmed by the High Court has not been assailed before us in this appeal. Out of the three eye-witnesses P.Ws. 1, 8 and 12 learned Additional Sessions Judge relied upon their testimony and came to the conclusion that the prosecution case as against the accused persons have been proved beyond reasonable doubt. On appeal the High Court, however, disbelieved the evidence of P.W. 12 on a finding that his presence at the scene of occurrence itself was doubtful but the conviction and sentences passed by the learned Sessions Judge was affirmed relying upon the testimony of the two other eye-witnesses, namely, P.Ws. 1 and 8.

(3.) Mr. U. R. Lalit, the learned Senior Counsel appearing for the appellants vehemently argued that the two eye-witnesses have made so much of embellishments, exaggeration and padding to their statements recorded under Section 161, Cr.P. C. that it is difficult for a Court of law to rely on such testimony and the Sessions Judge and the High Court committed serious error in relying upon such untrustworthy testimony to base the conviction. Mr. Lalit further contended that very foundation of the prosecution case as unfolded in the First Information Report given by P.W. 1 having failed the superstructure, as unfolded by the two eye-witnesses also must fail and it is highly unsafe to rely on the testimony of these two eye-witnesses only, so far as the alleged assault by the accused persons on the deceased-Raju is concerned inasmuch as the entire evidence is only chaff and no grain therein. Mr. Lalit also submitted that on reading of the evidence of P.Ws. 1 and 8 it would appear that both of them were not present at the scene of occurrence, and therefore, they could not have been relied upon as eye-witnesses.