TMI Blog2016 (10) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... ibe the part played by each one of the assailants All the five eye witnesses have named A1 to A7. Other accused have not been named by PW11 and PW18. By way of abundant caution, we give benefit of doubt to A10 and A11 for the reason that they have not been named by PW11 and PW18 and also for the reason that PW10 has attributed specific role only to A1 to A7. But as far as A1 to A7 are concerned (A2 has already died) all the five witnesses have consistently named them. A1 to A7 have been assigned specific role in assaulting the deceased. Their conviction and sentence under Section 302/149 of the IPC has to be upheld. For the above reasons, this appeal is partly allowed to the extent that appellant Nos.7 and 8 (Babu Rama Berad and Balu Naradeo Berad) are given benefit of doubt and are acquitted. They be released from custody, if not required in any other case. Appeal of other appellants is dismissed. However, appellant Nos.5 and 6 (Nivrutti Sakharam Koyale and Krishna Sakharam Koyale) will continue to remain on bail for one month and if they make an application for remission of the remaining sentence on the ground of advanced age within one month, they will continue to remain o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on 13th November, 1988 at 12.00 noon when all the accused came there to attack her husband. Accused No.3 Dada Sayyednoor Mulani put the house on fire on account of which everyone came out. Accused Nos.1 and 2 Bhagwan Jagannath Markad and Janardhan Rambhau Tate attacked Dagadu with swords on hands, legs and knees. Accused No.3 Dada Sayyednoor had barchi. Accused No.4 Sayyed Sayyadnoor Mulani had knife. Accused No.5 Sandipan Sakharam Koyale had iron rods. Accused No.6 Nivrutti Sakharam Koyale had barchi. Accused No.7 Krishna Sakharam Koyale had axe. Accused No.10 and 11 Babu Rama Berad and Balu Naradeo Berad had axe. Accused No.8 Shailendra Sandipan Koyale had sticks. PW11 Dagadu fell down on account of beating and became unconscious. Accused No.3 Dada Sayyednoor, accused No.4 Sayyed Sayyadnoor Mulani, accused No.5 Sandipan Sakharam Koyale, accused No.6 Nivrutti Sakharam Koyale, accused No.7 Krishna Sakharam Koyale caused beating to the deceased Bibhishan Vithoba Khade. Accused Nos.1 and 2 Bhagwan Jagannath Markad and Janardhan Rambhau Tate also attacked deceased Bibhishan Vithoba Khadle. The accused then beat PW11 Dagadu Gopinath Koyale and PW18 Chaturbhuj Khade with sticks and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himrao Dhavale are witnesses to the recovery in pursuance of the statements under Section 27 of the Evidence Act. The Chemical Analyser s report was also produced about the blood group on some of the recovered articles. 11. The trial Court rejected the prosecution version inter alia for following reasons : (i) Recovery was not admissible as the location of the articles recovered was already known; (ii) There was inordinate delay in sending the case property to the Chemical Analyser and possibility of tempering was not ruled out; (iii) There was inconsistency in the evidence of PWs Kernath Koyale, Bibhishan Vithoba Khadle and Chaturbhuj Khade in the manner of assault and the weapon used; (iv) The prosecution did not examine Indubai and Gopinath; (v) Motive was not established as there was no immediate election of the Panchayat or of the Cooperative Society; (vi) There was improvement in the version initially given to the police and the version put forward before the Court; and (vii) All the material witnesses are either related or otherwise interested and their testimony could not be accepted in absence of corroboration in material particulars. 12. The Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he spot is fully proved, apart from other evidence, because of the injuries suffered by him. There are in all 16 accused. Considering the aforesaid evidence, this appeal against acquittal has to be allowed in respect of accused Nos.1,2,3,4,5,6,7, 10 and 11, and their acquittal is required to be set aside. So far as accused Nos.8,9,12,13,14,15 and 16 are concerned, their acquittal is required to be upheld. Undoubtedly, the accused Nos.1 to 7 and 10 and 11 had formed an unlawful assembly with a common object of launching an assault. The house or vasti of Dagadu was set to fire. In the attack Bibhishan Khade died and P.W.11, 15 and 18 and others received injuries by deadly weapons. Therefore, for causing death of Bibhishan Khade the accused are required to be held guilty under Section 302 read with Section 149 of the Indian Penal Code and for causing severe injuries to the aforesaid prosecution witnesses and others, they are required to be held guilty under Sections 324 and 326 r/w 149 of the Indian Penal Code. So far as offence under Section 436 of the Indian Penal Code is concerned, the evidence of the prosecution witnesses is not consistent and, therefore, nobody can be convicted u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses which could not be altogether brushed aside. Contradictions and omissions which are not vital or material are bound to be there in every case. The same did not affect the credibility of the main version that the accused caused the death of the deceased and injuries to six persons on the complainant side. The accused formed unlawful assembly and action of even one accused in prosecution of common object of the unlawful assembly or which was known to likely to be so committed was action of all the accused in law. It was not necessary to prove individual role of different accused. The information by PW12 on telephone was cryptic and could not be treated as FIR. Therein though name of accused No.5 was mentioned and it was further stated that he was accompanied by others also, other details were not mentioned. This was not at par with the statement to be recorded by the officer in charge of the Police Station under Section 154 CrPC which can be treated as FIR. Thus, the telephonic message could not be treated as FIR. The statement of PW 10 made in the Police Station has rightly been treated as FIR. The said statement was prompt and could not be treated as an improved version. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haff from the grain . The degree of proof need not reach certainty but must carry a high degree of probability (Vijayee Singh vs. State of U.P.- (1990) 3 SCC 190, Paras18, 28-30) 19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sembly, arms carried by the members and the behavior of the members at or near the scene of incident. Sharing of common object is a mental attitude which is to be gathered from the act of a person and result thereof. No hard and fast rule can be laid down as to when common object can be inferred. When a crowd of assailants are members of an unlawful assembly, it may not be possible for witnesses to accurately describe the part played by each one of the assailants. It may not be necessary that all members take part in the actual assault ( Gangadhar Behera (supra), paras 22-24) . In Gangadhar Behera (supra), this Court observed : 25. The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable. A four-Judge Bench of this Court in Masalti case [AIR 1965 SC 202] observed as follows: 15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that non explanation of injuries on accused is an important circumstance which requires the court to satisfy itself that true version is not suppressed and whether defence version is probable (Vijayee Singh (supra), para 9) , (2001) 6 SCC 145-Takhaji Hiraji vs. Thakore Kubersing Chamansing) , (2012) 4 SCC 79-Mano Dutt vs. State of U.P.) . This by itself is not enough to reject the prosecution case. 24. To demonstrate that the approach of the trial court is outrightly perverse, some of the observations are put in : But in general terms she has stated that accused came with weapons. Similarly it is admitted by her during the cross-examination that she has not stated assault by particular accused on the person of Bibhishan Khade. But she has stated in general terms that Bibhishan was assaulted by the accused. Moreover it is to be noted that she has admitted that Dagadu and Bibhishan were assaulted by said weapons like cutting a wood by an axe, sword and barchi. But there is no piercing wound or cut injury on the person of deceased Bibhishan as well as Dagadu. Moreover it is in her complaint that she had been to the vasti of Murlidhar and Bibhishan Kshirsagar to hand over the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce station to the effect that there was a commotion at the village as firing and brickbatting was going on and this Court held that this cryptic information did not even disclose the commission of a cognizable offence nor did it disclose who were the assailants and such a cryptic statement of Gulabi Paswan cannot be treated to be an FIR within the meaning of Section 154 CrPC. 51. Similarly, in Binay Kumar Singh v. State of Bihar [(1997) 1 SCC 283] information was furnished to the police in Ext. 10/3 by Rabindra Bhagat that the sons of late Ram Niranjan Sharma along with large number of persons in his village had set fire to the houses and piles of straws and had also resorted to firing. This Court held that Ext. 10/3 is evidently a cryptic information and is hardly sufficient to discern the commission of any cognizable offence therefrom. 27. Similar view has been taken by this Court in Damodar (supra), T.T. Antony (supra ), Patai Alias Krishna Kumar (supra) and Ravishwar Manjhi (supra). 28. Learned counsel for the appellants also criticized the judgment of the High Court by submitting that the principles laid down by this Court in Padam Singh (supra), Devatha Venk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fact to be guided by the compass of probabilities along the rock-ribbed contours of the case converging on the heart of the matter. Once the court goes astray from the basic features of the case, it is apt to lose itself in the labyrinths of immaterial details, desultory discussion and vacillation arising from unfounded suspicions. This is exactly what has happened in the instant case. Despite the pains taken and the conscentious effort put in to write an elaborate judgment, the trial Judge had, as it were, missed the wood for the trees. The learned Judges of the High Court were, therefore, right in discarding altogether the basically wrong scheme of approach adopted by the trial court, and in analysing the evidence in their own way. 30. As already observed, the discrepancies of trivial nature could not be the basis of rejecting the evidence of injured eye witnesses nor non-examination of some of the witnesses be a ground to reject the prosecution case when injured eye witnesses were examined. 31. We may also refer to the judgment of this Court in Masalti versus State of U.P . (1964) 8 SCR 133 to the effect that the evidence of interested partisan witnesses though req ..... X X X X Extracts X X X X X X X X Extracts X X X X
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