Waman & Ors vs State Of Maharashtra

Waman & Ors. .... Appellant(s)

Versus

State of Maharashtra .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1) This appeal is filed against the final judgment and order

dated 15.03.2007 passed by the Division Bench of the High

Court of Judicature at Bombay, Nagpur Bench, Nagpur in

Criminal Appeal No. 521 of 2002 whereby the High Court

dismissed the appeal of the appellants herein and confirmed

the order dated 22.08.2002 passed by the Additional Sessions

Judge, Gondiya convicting the accused persons under various

Sections of Indian Penal Code (hereinafter referred to as "IPC").

1 2) Brief facts:

(a) On 29.10.2000 at about 12:30 p.m., Kamalabai Atmaram

Bohare (PW-1), Kusmanbai Suresh Bohare (PW-2) and

Pushpabai Ramesh Bohare (PW-3) were working in their fields

situated at village Shivantola. At that time, Atmaram Bohare

and Suresh Bohare (deceased persons) were also present

there. Gowardhan (A-1) was also standing on the road side.

Suresh Bohare and Atmaram Bohare after putting paddy at

the threshing machine were coming back to their home. When

they reached near the D.P. of electricity situated in the land of

Kamalabai, Gowardhan (A-1) passed a comment on them and

a quarrel between the parties took place. Immediately after

starting of quarrel, A-2 to A-13 rushed there with weapons

and started assaulting Suresh Bohare and Atmaram Bohare.

b) Gowardhan (A-1) was having Farsha and he gave a blow

of it on the leg of Suresh Bohare. Mahadeo( A-2) who

possessed sword gave a blow of it on the leg of Suresh Bohare.

Abhiman (A-3), who was having an axe in his hand gave a

blow on the back of Suresh Bohare. Kalpanabai (A-11), gave a

blow of spade on the head of Suresh Bohare. Pramilabai (A-

2 10) who was having stick also beat Suresh with it. At the

same time, Manoj (A-5) and Waman (A-4) who were having axe

in their hands, gave blows on the head of Atmaram. During

this, Jaipal (A-6) and Kantabai (A-8) gave an axe blow and

stick blow respectively to Atmaram. Shantabai (A-7) and

Parvatabai (A-9) gave scissors blow on the mouth of Atmaram.

Due to this sudden attack by the accused persons, Suresh

Bohare and Atmaram Bohare sustained serious injuries and

they fell down on the ground. On hearing the commotion, PWs

1-3 and one Sakhubai Rakhade (PW-4) rushed towards the

place of incident. The accused persons fled away. Suresh and

Atmaram were brought to home and were taken to Amagaon

Hospital from where they were immediately shifted to KTS

Hospital at Gondiya. The doctor on duty declared Suresh

brought dead and after sometime Atmaram also died in the

hospital. On the oral complaint of Kamlabai (PW-1), a case

with FIR No. 183/2000 was registered on 29.10.2000 against

13 accused persons under Sections 147, 148, 302 r/w 149,

323 r/w 149 and 447 r/w 149 of IPC.

3 c) During the course of investigation, the accused persons

were arrested and various weapons were recovered at their

instance. After completion of investigation, they were charge

sheeted.

d) After examining the witnesses, the Additional Sessions

Judge, Gondiya vide his order dated 22.08.2002, acquitted A-

7, A-9, A-10 and A-11 of the offences punishable under

Sections 302, 447 and 323 r/w 149 of the IPC and Sections

147 and 148 of IPC and convicted A-1 to A-6 and A-12 for the

offences punishable under Section 302 r/w 149 IPC and

awarded life imprisonment with a fine of Rs. 1000/- in default

to suffer rigorous imprisonment for one month. Each of

them were also convicted for the offences punishable under

Section 447 r/w 149 of IPC and were directed to suffer

rigorous imprisonment for one month and to pay a fine of Rs.

200/- each in default to suffer rigorous imprisonment for 7

days. A-1 to A-6 and A-12 were also convicted under Sections

147 and 148 of IPC but acquitted of the offences punishable

under Section 323 r/w 149 of IPC. A-13 being a juvenile

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offender, her trial was forwarded to the juvenile court. A-8 died

after framing of charge and trial against her got abated.

e) Aggrieved by the order dated 22.08.2002 of the trial

Court, A-1 to A-6 and A-12 preferred an appeal before the

Division Bench of the High Court of Judicature at Bombay.

The Division Bench, by impugned judgment and order dated

15.03.2007, dismissed the appeal of the appellants and

affirmed the order dated 22.08.2002 passed the Additional

Sessions Judge, Gondiya.

f) Aggrieved by the said decision, A-4 to A-6 and A-12 only

filed this appeal by way of special leave petition before this

Court.

3) Heard Mr. J.P. Dhanda, learned counsel for the

appellants and Mr. Dushyant Parashar, learned counsel for

the State.

4) Submissions by the counsel:

(a) After taking us through the entire prosecution case,

defence of the accused and the materials placed, learned

counsel for the appellants submitted that inasmuch as all the

prosecution witnesses, particularly, eye-witnesses PWs. 1-4,

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who are female members of the family of the complainant and

close relatives, the evidence of these related witnesses cannot

be relied upon. He also submitted that the courts below

committed an error in convicting the appellants mainly on the

ground that the weapons of offence were recovered on their

disclosure statements. He further pointed out that with the

same allegations and similar circumstances, the women

accused persons were acquitted by the trial Court and it is

not justified in convicting the male accused based on the very

same evidence. He also pointed out that in view of

contradictions among the eye-witnesses, namely, PWs. 1-4,

conviction based on their evidence cannot be sustained.

Finally he submitted that insofar as Dilip (A-12) is concerned,

in the absence of recovery of any weapon from him which is

also the finding of the trial Court convicting him for the offence

under Section 302 along with other accused cannot be

sustained.

(b) On the other hand, learned counsel for the State

submitted that there is no bar in accepting the evidence of

related witnesses. He pointed out that because of their

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relationship, courts have analysed their evidence carefully and

meticulously and ultimately accepted their version. According

to him, there is no contradiction in the evidence of PWs. 1-4,

as alleged even otherwise, minor contradictions in their

statement would not affect the ultimate conviction arrived at

by the trial Court and affirmed by the High Court. He further

pointed out that recovery of weapons and the medical evidence

show that the prosecution has proved its case beyond

reasonable doubt. Lastly, he submitted that inasmuch as two

persons were murdered in the incident and after analyzing the

entire materials the trial Court ultimately convicted the

accused persons which was affirmed by the High Court,

interference by this Court exercising jurisdiction under Article

136 is not warranted and it is not a fit case to interfere by this

Court.

5) We have carefully considered the rival contentions and

perused all the relevant materials.

Discussion:

6) The incident took place on 29.10.2000. The complainant

and others were working in the field. At that time, Atmaram

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Bohare and Suresh Bohare (the deceased persons) were also in

the field at the place of incident. At about 12:30 p.m.,

Govardhan (A-1) was standing on the road side and the

deceased persons were going home. They had a long standing

land and water dispute. On hearing something from A-1 all

the other accused rushed there and started abusing and

beating the two victims. According to the prosecution, all the

accused persons were armed with various weapons and they

gave blows on the victims. Due to this incident, both

Atmaram Bohare and Suresh Bohare sustained serious

injuries and they fell down on the ground. According to the

prosecution, the incident was witnessed by Kamlabai Bohare

PW-1, Kusmanbai Bohare PW-2, Pushpabai Bohare PW-3 and

Sakhubai Rakhade PW-4. PW-1 is wife of Atmaram Bohare

(since deceased), PW-2 is wife of Suresh Bohare (since

deceased), PW-3 is daughter-in-law of Atmaram Bohare, PW-4

though claimed as an independent witness, is sister-in-law of

Pushpabai Bohare (PW-3). It is the case of the prosecution

that all the above mentioned 4 persons (PWs 1-4) witnessed

the occurrence of the incident. It is true that all 4 are related

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to the family of the deceased. Now, let us consider their

evidence and acceptability which was relied on by the trial

Court and affirmed by the High Court.

Evidence of relatives of complainant/deceased:

7) In view of the stand of the counsel for the appellants that

since PWs 1-4, eye-witnesses are closely related to the

deceased and complainant, conviction can not be based on

such evidence, let us state the law on the

admissibility/acceptability or otherwise of their evidence as

considered by this Court.

8) In Sarwan Singh and Others vs. State of Punjab,

(1976) 4 SCC 369, a three-Judge Bench of this Court, while

considering the evidence of interested witness held that it is

not the law that the evidence of an interested witness should

be equated with that of a tainted witness or that of an

approver so as to require corroboration as a matter of

necessity. The evidence of an interested witness does not

suffer from any infirmity as such, but the courts require as a

rule of prudence, not as a rule of law, that the evidence of

such witnesses should be scrutinized with a little care. Once

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that approach is made and the court is satisfied that the

evidence of the interested witness has a ring of truth such

evidence could be relied upon even without corroboration. The

fact of being a relative cannot by itself discredit the evidence.

In the said case, the witness relied on by the prosecution was

the brother of the wife of the deceased and was living with the

deceased for quite a few years. This Court held that "but that

by itself is not a ground to discredit the testimony of this

witness, if it is otherwise found to be consistent and true".

9) In Balraje alias Trimbak vs. State of Maharashtra,

(2010) 6 SCC 673, this Court held that the mere fact that the

witnesses were related to the deceased cannot be a ground to

discard their evidence. It was further held that when the eye-

witnesses are stated to be interested and inimically disposed

towards the accused, it has to be noted that it would not be

proper to conclude that they would shield the real culprit and

rope in innocent persons. The truth or otherwise of the

evidence has to be weighed pragmatically and the court would

be required to analyze the evidence of related witnesses and

those witnesses who are inimically disposed towards the

1

accused. After saying so, this Court held that if after careful

analysis and scrutiny of their evidence, the version given by

the witnesses appears to be clear, cogent and credible, there is

no reason to discard the same.

10) The same principles have been reiterated in Prahalad

Patel vs. State of Madhya Pradesh, (2011) 4 SCC 262. In

para 15, this Court held that "though PWs 2 and 7 are

brothers of the deceased, relationship is not a factor to affect

credibility of a witness. In a series of decisions this Court has

accepted the above principle (vide Israr vs. State of U.P.,

(2005) 9 SCC 616 and S. Sudershan Reddy vs. State of A.P.,

(2006) 10 SCC 163)

11) The above principles have been once again reiterated in

in State of U.P. vs. Naresh & Ors., (2011) 4 SCC 324. Here

again, this Court has emphasized that relationship cannot be

a factor to affect the credibility of an witness. The following

statement of law on this point is relevant:

"29. .... The evidence of a witness cannot be discarded solely

on the ground of his relationship with the victim of the

offence. The plea relating to relatives' evidence remains

without any substance in case the evidence has credence

and it can be relied upon. In such a case the defence has to

lay foundation if plea of false implication is made and the

Court has to analyse the evidence of related witnesses

1

carefully to find out whether it is cogent and credible. [Vide

Jarnail Singh vs. State of Punjab (2009) 9 SCC 719,

Vishnu & Ors. v. State of Rajasthan, (2009) 10 SCC 477;

and Balraje @ Trimbak (supra)]"

12) It is clear that merely because the witnesses are related

to the complainant or the deceased, their evidence cannot be

thrown out. If their evidence is found to be consistent and

true, the fact of being a relative cannot by itself discredit their

evidence. In other words, the relationship is not a factor to

affect the credibility of a witness and the courts have to

scrutinize their evidence meticulously with a little care.

Evidence of PWs 1-4:

13) Kamalabai (PW-1), wife of Atmaram and mother of

Suresh has narrated how the incident took place one year

back after Diwali. According to her, at about 9.00 a.m., she

along with Kusumanbai, PW-2 and Pushpabai, PW-3 had gone

to her field. At about 12.00 noon Atmaram and Suresh kept

the `Dhan' on threshing machine and they were coming back

to their house for meal. At that time, Goverdhan A1 was

standing on the road side and he told `Dhavare' `Aalera'.

Goverdhan was holding Farsha and he gave its blow on the leg

of Suresh. Mahadeo was holding sword, he gave its blow on

1

the leg of Suresh. Abhiman gave an axe blow on the back of

Suresh. Kalpana gave stick blow on the back of Suresh.

Manoj gave axe blow on the head of Atmaram. Waman also

gave axe blow on the head of Atmaram. Dilip gave blow of iron

pipe to Atmaram. Jaipal gave axe blow to Atmaram. Kantabai

beat Atmaram by stick. Shantabai and Parvatabai gave blow

of scissors on the mouth of Atmaram. She deposed that this

incident took place in her field near D.P. of M.S.E.B. The

place of occurrence was shown by her to the police. Even in

the cross-examination, she reiterated the same. Though

certain discrepancies were pointed out in her statement under

Section 161 Cr.P.C. and her deposition before the Court, on

going through the same, we are satisfied that she witnessed

the occurrence and telling the truth.

14) Kusmanbai (PW-2), wife of Suresh Bohare and daughter-

in-law of PW-1 reiterated what PW-1 deposed before the Court.

She stated in her deposition that she noticed that Goverdhan

beat Suresh with Farsha. Mahadeo gave a blow of sword to

Suresh. Abhiman gave a blow of axe on the leg of Suresh.

Kalpana gave a blow of the spade on the back of Suresh.

1 Pramila and Mangala gave stick blows to Suresh. Waman also

gave a blow of axe to Atmaram. Manoj gave an axe blow on

the head of Atmaram. Dilip also gave a blow of pipe on the

head of Atmaram. Jaipal gave an axe blow on the leg of

Atmaram. Parvatabai gave a blow of scissors on the mouth of

Atmaram. She asserted that she saw this incident from 30-40

feet and at that time she was cutting the crop in the field in

which her house was situated. She also stated that Atmaram

and Suresh were conscious till they were brought to their

house. Here again, certain omissions in the statement

recorded under Section 161 Cr.P.C. were pointed out. As

stated to the evidence of PW-1, there is no material difference

in the evidence of PW-2 merely because there is some omission

in the statement under Section 161 Cr.P.C. and her evidence

before the Court, there is no need to reject her testimony as

claimed by the appellants.

15) Pushpa Bohare (PW-3), daughter-in-law of Atmaram and

PW-1 also deposed in the same line as that of PWs 1 and 2.

She also implicated the appellants and the role played by them

as explained by PWs 1 and 2. She also specified various

1

weapons used in the commission of offence and implicated all

the appellants including A12 who used iron pipe (Art.47). She

asserted that she did inform the police that Dilip (A-12) gave a

blow of iron pipe to Atmaram.

16) Sakhubai (PW-4), is sister-in-law of Pushpabai (PW-3).

She also narrated that the incident had occurred around 12

noon. At that time, she was going towards her field. She

heard a shout from the side of Goverment well as `Dhawa

Dhawa'. She noticed that fighting was going on in the field of

Atmaram. She saw accused Nos. 1 to 6 and 12 were beating

Suresh. Farsha and axes were used for the attack. Manoj (A-

5) gave an axe blow to Atmaram. She also reiterated that all

these persons beat Atmaram. She also affirmed that PW-1,

wife of Atmaram and PWs 2 & 3, daughters-in-law of PW-1

were also present at the scene of occurrence. She asserted

that she did inform the police that Manoj(A-5) beat Atmaram

by axe. She also informed the police that Pramilabai was

possessing spade and Manoj was possessing sword. Merely

because these statements were not noted by the police, her

deposition can not be rejected.

1 17) It is true that there is some variance in the testimony

while describing particular weapon held by the persons and

injuries on the body of the deceased. However, as rightly

analyzed by the trial Court and accepted by the High Court,

the testimony of these witnesses is convincing and trustworthy

about the incident and there is no reason to disbelieve their

statements as claimed by the learned counsel for the

appellants.

18) Medical Evidence

It is important to note that the evidence of all these

witnesses i.e. PWs-1 to 4 is corroborated by medical evidence.

We have already noted that in the said incident, both

Atmaram Bohare and Suresh Bohare died. Dr. Satish

Humane, PW-7, Medical Officer, KTS Hospital, Gondiya

conducted autopsy on the body of Suresh Bohare. He noted

the following injuries on the body of Suresh Bohare in Ext.67

"i) Deep incised wound - U/3rd (L) lateral side

of thigh 4 =" X 1" X MS. Deep (1/2")

ii) Deep incised wound M/3rd (L) Leg.

4" X 1" X MS. Deep (1/2")

iii) Deep incised wound L/3rd (L)

Lateral side of leg. 5" X 1 =" X MS

Bone vs. deep i.e. Abs. with fracture

1

BB L/3rd (L) Leg.

iv) Inprint contusion (R) scapular region 3" X1".

v) Inprint contusion (R) intra scapular region 2" X 1"

vi) Abro-contusion (R) memory region =" X ="

vii) Abro contusion U/3rd (L) F.A. 1" X ="

viii) Abrasion - (L) Elbow Jt. 1" X ="

19) Dr. Satish Humane noted the following injuries on the

body of Atmaram Bohare in Ext. 68

"i) Incised wound - (R)

Frontal region of Head 2 =" X <" X bone deep.

ii) Incised wound - (1)

Frontal region of Head

2" X <" X bone deep.

iii) Incised wound (L) parietal

region of Head 2" X <" X scalp deep.

iv) Incised wound 1/3rd (R)

thigh 4" X =" X MS Deep

v) Incised wound L/3rd (L) thigh

4 =" X =" X MS Deep

vi) Incised wound M/3 (R)

Leg 2" X =" X MS Deep

vii) Incised wound - upper

lip 2" X =" X MS Deep

viii) Incised wound - (L)

Eyebrow 1 =" X =" X MS Deep

ix) Contusion - (R) Parotid

region 2 =" X 2".

x) Abrasions (B) Elbow Jt.

1 =" X 1" each.

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xi) Fracture . frontal & (L)

frontal region of Head."

20) About the nature of injuries sustained by Suresh Bohare,

Dr. Satish Humane (PW-7) has opined that he died due to

haemorrhage and shock as a result of multiple injuries. His

Post Mortem report is marked as Ext.67. Insofar as injuries of

Atmaram, PW-7 has deposed that there was fracture of right

frontal and left frontal region of the head. There were blood

clots under right and left frontal region and left parietal region

of head. There was a fracture of right and left frontal region

and left pareito temporal region of skull, intra cranial

haemorrhage present in brain, heart was empty, both lungs

and other organs were intact and pale. There was no food

material in the stomach. Injury Nos. 1 to 8 may be caused by

hard and sharp object and 9 & 10 may be caused by hard and

blunt object. In his opinion, the said injuries were caused

within 18-30 hours before Post Mortem examination and

according to him, Atmaram Bohare died due to haemorrhage

and shock as a result of head injury. His Post Mortem report

has been marked as Ext. 68. He also explained to the Court

1

that injury on the head of Atmaram Bohare was fatal and

sufficient to cause instantaneous death. He further explained

that injury Nos. 1, 2 and 3 coupled with fracture on leg on the

person of Suresh Bohare were sufficient to cause

instantaneous death. Though an argument was advanced

from the side of the appellants that the deceased Suresh

Bohare had sustained injuries only on thighs and legs which

are not fatal parts of the body, Dr. Satish Humane (PW-7) has

explained before the Court during his cross-examination that

there was cutting of major vessels and those injuries were life

fatalling. He further deposed that after cutting of major blood

vessels, the person may die within 15 to 30 minutes. He also

reiterated and asserted that injury Nos. 1, 2 and 3 on person

of Suresh Bohare are collectively sufficient to cause death.

21) The analysis of the statements of PWs 1 to 4 and the

assertion of Dr. Satish Humane, PW-7 who conducted the

autopsy on the body of deceased Atmaram Bohare and Suresh

Bohare as well as his explanation as to the nature of injuries

with reference to the weapons used by the accused, we hold

that the prosecution has established its charge that both the

1

deceased died due to the injuries sustained in the incident.

We accept the prosecution case and agree with the conclusion

arrived at by the trial Court as affirmed by the High Court.

Contradictions in the evidence of PWs

22) Let us consider the argument of the appellants as to

contradictions in the evidence of prosecution witnesses.

According to the counsel for the appellants, the prosecution

witnesses were not consistent with the statements as to the

weapons used by the accused persons. He also pointed out

that after the statements were recorded under Section 161

Cr.P.C. before the police, they improved their version before

the court. On these grounds, the counsel for the appellants

submitted that no reliance need be given to those witnesses

and courts below have committed an error in considering this

aspect. We have already adverted to the statements of PWs.,

particularly, eye-witnesses PWs. 1-4 as to the narration of the

incident, overt act of each of the accused persons, weapons

handled, injuries sustained by both the deceased Suresh

Bohare and Atmaram Bohare as well as medical evidence by

Dr. Satish Humane (PW-7) and post-mortem reports marked

2

as Exs. 67 and 68. In fact, the very same objection was raised

before the trial Court and the High Court and while

considering the said objection both the courts analysed their

evidence in detail. We also verified and considered their

statements with reference to the objection raised by the

counsel for the appellants. First of all, the contradictions are

minor in nature and not related to the major overt act

attributed to each accused. It is relevant to point out that

these persons made statements to the police immediately after

the occurrence, i.e., on 29.10.2000 and their evidence was

recorded before the court in the month of December 2001

nearly after 1 year. Even otherwise, the prosecution witnesses

all are hailing from agricultural family and are villagers, we

cannot expect minute details as stated in their earlier

statements and before the court. In this regard, it is useful to

refer various decisions rendered by this Court as to the minor

contradictions in the statements of prosecution witnesses and

the admissibility of the same.

23) In Gurbachan Singh vs. Satpal Singh & Ors. (1990) 1

SCC 445, this Court has held that despite minor

2

contradictions in the statements of prosecution witnesses, the

prosecution case therein has not shaken and ultimately

accepting their statement set aside the order of acquittal

passed by the High Court and restored the sentence imposed

upon them by the trial Court.

24) In Sohrab s/o Beli Nayata and Anr. vs. The State of

Madhya Pradesh (1972) 3 SCC 751 about minor

contradictions in the statements of prosecution witnesses,

Their Lordships have held in paragraph 8 as under:

".....It appears to us that merely because there have been

discrepancies and contradictions in the evidence of some or all of

the witnesses does not mean that the entire evidence of the

prosecution has to be discarded. It is only after exercising caution

and care and sifting the evidence to separate the truth from

untruth, exaggeration, embellishments and improvement, the

Court comes to the conclusion that what can be accepted

implicates the appellants it will convict them. This Court has held

that falseus in uno falsus in omnibus is not a sound rule for the

reason that hardly one comes across a witness whose evidence

does not contain a grain of untruth or at any rate exaggeration,

embroideries or embellishments. In most cases, the witnesses

when asked about details venture to give some answer, not

necessarily true or relevant for fear that their evidence may not be

accepted in respect of the main incident which they have

witnessed but that is not to say that their evidence as to the

salient features of the case after cautious scrutiny cannot be

considered though where the substratum of the prosecution case

or material part of the evidence is disbelievable it will not be

permissible for the Court to reconstruct a story of its own out of

the rest....."

25) It is clear that not all contradictions have to be thrown out

from consideration but only those which go to the route of the

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matter are to be avoided or ignored. In the case on hand, as

observed earlier, merely on the basis of minor contradictions

about the use and nature of weapons, injuries, their

statements cannot be ignored in toto. On the other hand, we

agree with the conclusion of the trial Court as affirmed by the

High Court about the acceptability of those witnesses,

accordingly, we reject the claim of the appellants as to the

same.

26) Ordinarily, the prosecution is not obliged to explain each

injury on an accused even though the injuries might have

been caused in the course of occurrence, if the injuries are

minor in nature, however, if the prosecution fails to explain a

grievous injury on one of the accused persons which is

established to have been caused in the course of the same

occurrence then certainly the court looks at the prosecution

case with a little suspicion on the ground that the prosecution

has suppressed the true version of the incident. However, if

the evidence is clear, cogent and creditworthy then non-

explanation of certain injuries sustained by the deceased or

injury on the accused ipso facto cannot be the basis to discard

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the entire prosecution case. In the earlier part of our order,

we have adverted to the statement of Dr. Satish Humane who

was examined as PW-7. He highlighted ante-mortem injuries

suffered by Atmaram Bohare and Suresh Bohare. From his

evidence, it is clear that there was fracture of right and left

frontal region of the head of Atmaram Bohare. There were

blood clots under right and left frontal region and left parietal

region of the head. There was a fracture of right and left

frontal region and left temporal region of skull. In the case of

Suresh though it was argued that inasmuch as he sustained

injuries on thighs and legs which are not vital parts of the

body, the post-mortem doctor (PW-7) has explained before the

court that there was cutting of the major vessels and

expressed that those injuries were fatal to life. He further

explained that after cutting of the major blood vessels a person

may die within 15 to 30 minutes. In view of the same, we are

unable to accept the statements relating to evidence pertaining

to injuries caused by the accused persons.

27) It is true that the disclosure of the weapons by the

accused persons were not duly proved as panchas turned

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hostile. As rightly discussed by the trial Court and the High

Court that the accused persons are cultivators and generally

they carry with them axes, farshas, sticks, spears etc. In such

circumstances if we consider the entire evidence together, the

defence plea is liable to be rejected.

Special reference to Dilip, A-12

28) Learned counsel for the appellants finally submitted that

in the absence of recovery of any weapon from Dilip A-12 and

evidence relating to him is similar to female accused who were

all acquitted, in fairness the courts could have acquitted A-12

also. On going through the materials placed, we are unable to

accept the said contention. It is true that no weapon was

recovered from A-12 but prosecution witnesses implicated him

for causing fatal injuries along with the other accused

persons. Considering the evidence of PWs. 1-4, weapons

seized from various accused, incised wounds on different body

parts coupled with medical evidence clearly implicate A-12

also in the commission of murder. It is not the case of solitary

blow but number of blows by various accused hence the

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intention and knowledge to cause death has been amply

demonstrated and proved.

29) Even otherwise, A-12 was also charged under Section 149

IPC as a member of unlawful assembly with the requisite

common object and knowledge. Inasmuch as the prosecution

evidence insofar as women accused are not cogent, their

acquittal cannot be applied to A-12 who was in the company of

A-1 to A-6. As mentioned above, apart from conviction under

Section 302 Dilip A-12 was convicted under Section 149.

Section 149 creates a specific offence and deals with

punishment of the offence. Only thing whenever the court

convicts any person or persons of any offence with the aid of

Section 149, a clear finding regarding the common object of

the assembly must be given and the evidence disclosed must

show not only the nature of the common object but also that

the object was unlawful. In order to attract Section 149 it

must be shown that the incriminating act was done to

accomplish the common object of unlawful assembly. It must

be within the knowledge of the other members as one likely to

be committed in prosecution of common object. If members of

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the assembly knew or were aware of the likelihood of a

particular offence being committed in prosecution of a

common object, they would be liable for the same under

Section 149. The trial Judge on thorough analysis held that

the prosecution has made out a case against the accused-

appellants not only under Section 302 read with Section 149,

the prosecution has very well established offences punishable

under Section 147, 148 and the accused A-1 to A-6 including

A-12 used force and violence being members of unlawful

assembly in prosecution of common object of causing death of

Suresh Bohare and Atmaram Bohare. The deadly weapons in

their hands were axes, farshas, sticks, iron pipe etc. Though

there is no recovery of weapon from Dilip A-12 but weapons

have been recovered from other accused and prosecution

witnesses have asserted that Dilip A-12 gave blow of iron pipe

on Atmaram. The said iron pipe was recovered from the house

of Mahadeo which also proved that A-12 had participated in

the offence with such weapon and therefore he was rightly

punished along with other accused Nos. 1-6 under Section

148 for committing offence of rioting armed with deadly

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weapons.

30) We are satisfied that the prosecution has established long

standing land and water dispute among the deceased and the

accused, the evidence of eye-witnesses PWs.1-4 are

acceptable, contradictions are trivial in nature and medical

evidence corroborate the assertion of prosecution witnesses.

All those materials were correctly analysed and accepted by

the trial Court and affirmed by the High Court. On perusal of

all the above said materials, we agree with the said conclusion.

In those circumstances, interference by this Court under

Article 136 is not warranted. We do not find any error or

infirmity or valid legal ground for interference in the order

passed by the courts below, consequently, the appeal fails and

the same is dismissed.

.................................................J.

(P. SATHASIVAM)

..................................................J.

(A.K. PATNAIK)

NEW DELHI;

JUNE 29, 2011.

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