1. The five appellants have been convicted under Section 148, I. P. Code, Section 302 read with Section 149, I. P. C., and under Section 324 read with Section 149, I. P. C. Of them, accused Nos. 1 and 2 have been sentenced to rigorous imprisonment for 18 months under Section 148, I. P. C., to transportation for life under Section 302 read with Section 149, I. P. C., and to rigorous imprisonment for two years under Section 324 read With Section 149, I. P. C.
Accused Nos. 3, 4 and 6 have been ordered to be detained in the Borstal School at Dharwar or any other suitable place of a like nature for a period of four years. It is this order of conviction and sentence that has been strenuously challenged before us by Mr. Bhasme.
2. The offence took place in a field outside the village of Kokil on 27-5-1954, about mid-day. The prosecution case against the five appellants and two others at the trial was that they had committed the offence in question in pursuance of the common intention of an unlawful assembly which they had formed. Seven persons were charged at the trial and it was alleged that these seven persons had been assisted in the commission of this offence by some others who were absconding at the day of the trial.
The charge was that on the date in question between 11 and 12-30 A. M. those accused pea-sons were members of an unlawful assembly in a field called Nhavyache shet at Kogil. They were armed with axes spears and sticks and their common object was to cause the death of Shankar Hanmant Jadhav and to cause injuries to his father Hanma Hari Jadhav.
The prosecution further alleged that as mem-bers of an unlawful assembly all the accused committed rioting and in prosecution of the said com-mon object accused Nos. 2, 3, 6 and 7 inten-tionally caused injuries to the said Shankar by means of axes, spears and sticks which injuries were in the ordinary course of nature likely to cause the death of Shankar and in fact Shankar died as a result of these injuries.
In consequence all the members of the unlawful assembly were guilty of the offence under Section 148. I. P. C. and Section 302 read with Section 149 of the Penal Code. A similar charge was framed under Section 324 read with Section 149, Penal Code in respect of the injuries caused by accused Nos. 1, 3 and 6 to Hanma Hari Jadhav father of Shankar; thatis the nature of the charge framed against the appellants at that trial.
The accused had denied the charge. The case against them was tried with the aid of Assessors. All the assessors were unanimously of the opinion that all the charges framed had been proved against all the accused by the prosecution. The learned Judge, however, differed from the opinion of the Assessors in respect of accused Nos. 5 and 7 and so he acquitted them of the offence charged.
In regard to accused Nos. 1, 2, 3, 4 and 6, he agreed with the opinion of the Assessors and so convicted them of the offence charged. It is against this order of conviction and the sentence imposed by the learned Judge that these five accused have come to this Court in appeal.
3. The case for the prosecution is based upon an alleged enmity between Shankar and some of the accused. Evidences have been led about the motive in that behalf. Zaryache shet which is an agricultural piece of land has caused this enmity. Accused Nos. 1 and 2 laid a claim to this field whereas Sakharam had succeeded in obtaining a decree in his favour in respect of this field.
Shankar, the deceased, was the son of Sakha-ram's sister and was working as a clerk with a pleader at Kolhapur and Shankar assisted Sakha-ram in the litigation in respect of this field. That is why accused Nos. 1 & 2 & their friends bore a grudge against Shankar. The learned Sessions Judge has found that the background of motive relied upon by the prosecution in the present case has been proved.
Mr. Bhasme does not seriously dispute the fact that the litigation has been commenced by Sakharam in respect of Zaryache Shet and that it may have led to bitterness between the accused Nos. 1 & 2 on the one hand & Shankar who was assisting Sakharam on the other. But the proof of motive must be assigned a minor place in a criminal trial and its importance should not be exaggerated.
It was near this Zaryache Shet that the offence appears to have been committed according to the prosecution case. Shankar had dug a well in his field called Nhavyache Shet and the offence actually took place on this Nhavyache Shet. The well which had been dug by Shankar had not struck water and on 27-5-1954, in the morning, Shankar had proceeded to this field accompanied by Hasham who was a water finder and his friends Allabux Bargin and Hindurao Kelaskar.
Shankar normally resided at Kolhapur and he left Kolhapur for Kogil that morning accompanied by these friends. When the party reached Kogil, Allabux, Hasham and Hindurao sat on a hillock near the village and Shankar went to his house. There he met Ambubai who was living with Sakharam as his wife. Shankar wanted to receive some money for the medical treatment of his wife and so he decided to see his father. He was told that his father Hanma had gone to the field early in the morning.
So Shankar accompanied by his friends went to the fields and showed them the well, Hasham told Shankar that he should dig the well about 5 ft. deep and then he would be able to get water. Thereafter the party went and sat under the shade of a banian tree. Hanma, the father of Shankar was also with them. After some time one Yeshwant came there in search of his buffalo.
Seeing them resting under the banian, tree, accused Nos. 1 to 7 with 4 other absconding persons, who were lying in wait in Zaryache Shet nearby, rushed to Nhavyache Shet armed with axes, spears and sticks. The assailants encircled Shankar and his father. They first caused injuries to Hanma with sticks and spears and then inflicted a large number of injuries on Shankar by means of deadly weapons as a result of which Shankar died.
When the assault commenced, Allabux, Hasham and Hindurao and Yeshwant naturally fled away. They were, however, chased by some of the accused and according to the prosecution case Allabux and Yeshwant received stick blows on their hands. As a result of the beating received by him Hanma fell down unconscious. The accused then dragged the body of Shankar from Nhavyache Shet into the Zaryache Shet.
By this time some people from the village collected near the field. Ambubai apparently heard about this incident and she came to the field and saw the dead body of Shankar lying in Zaryache Shet and Hanma lying unconscious in Nhavyache Shet. According to Ambubai, she also saw the assailants armed with sticks. She then ran to the village and informed the Police Patil about the occurrence. That brought the Police Patil to the scene of offence.
The Police Patil saw Shankar lying dead and he found Hanma unconscious. Then he wrote a Vardi report and despatched it with a Sanadi to the Karvir Taluka Police Station. When Hanma regained consciousness the Police Patil recorded his dying declaration in the presence of Panchas. He arranged for a watch over the dead body and then awaited the arrival of the Sub-Inspector. When the Sub-Inspector arrived, investigation commenced as a result of which all the seven accused were charged-sheeted and some others were shown as absconding. That In brief is the prosecution case.
4. This case is sought to be established by the evidence of five eye-witnesses and the main point which we have to consider in this appeal is whether the learned Judge was justified in accepting the evidence of these five eye-witnesses. Before dealing with this evidence, however, the Vardi report sent by the Police Patil may be mentioned.
It appears that this was the first Vardi report made by the Police Patil in a murder case. This Vardi report sets out the fact that the Police Patil had learned from Ambubai that Shankar had been killed and Hanma was lying unconscious as a result of the beating. The names of the assailants were not indicated, nor were the names of possible witnesses mentioned in the Vardi.
It is true that Ambubai in her evidence purported to say that when she went to the field and saw the dead body of Shankar she also noticed the assailants but it is clear from the first in. formation report that Ambubai did not mention the names of any assailants to the Police Patil and the claim made by Ambubai that she saw the assailants must, therefore, be rejected.
Mr. Bhasme, however, contends that the Vardi Report shows that at the time when the Police Patil made the report nobody knew who the offenders were and according to Mr. Bhasme the whole of the prosecution case has been falsely set up against the accused at the instance of Sakharam, and the Police Patil.
Usually in criminal trials for the defence an attempt is made to paint somebody as a villain (sic) the case would not have been falsely set up against them. A similar attempt was made before us by Mr. Bhasme but unfortunately Mr.Bhasme was not able to point out any material on the record on which it could be suggested reasonably that the Police Patil or Sakharam had anything to do with manufacturing evidence in this case.
Indeed this point had not been put to these witnesses at all. Therefore, we must summarily reject the contention that it is at the instance of the Police Patil and Sakharam that the witnesses had attempted to make a false case against the accused.
There is another point to which reference must be made. Mr. Bhasme contended that the statement purporting to be the dying declaration of Hanma is not admissible in this case. He contends that this statement was recorded after the investigation began and so it is said that it is hit by Section 162 of Criminal P. C. The learned Judge had taken a contrary view. Though we are disposed to agree with the view taken by the learned Judge about the admissibility of this document we would prefer to leave it out of consideration and we would confine pur attention to the direct evidence given by witnesses in this case.
5-10. (After discussing the evidence, the judgment proceeds as under); So far as accused Nos. 1, 2, 3 and 4 are concerned, the evidence of Yeshwant, Hasham and Allabux conclusively proved the prosecution case and in regard to accused No. 6 the account given by Hanma is corroborated by Tuka's evidence. Therefore, we are satisfied that the learned Judge was right in holding that the case against accused Nos. 1, 2, 3, 4 and 6 had been proved beyond reasonable doubt. It is unnecessary to deal with the question as to whether the appellants constituted themselves into members of an unlawful assembly and whether they had the common object alleged against them by the prosecution.
The facts which have been already mentioned by me bear eloquent testimony to the charge levelled by the prosecution that these assailants were lying in wait in Zaryache Shet fully armed. Then the course of conduct adopted by them in rushing to the field where Shankar and his father were resting under a tree clearly shows that they were actuated by the common object of inflicting injuries on Shankar's father and of causing the death of Shankar.
In such cases it is not necessary for the prosecution to prove that a particular accused caused a particular injury either to Shankar or his father and so was guilty under Section 324 or Section 302, I. P. C. Since the offence is under Sections 302 and 324 read with Section 149, I. P. C., it would be enough for the prosecution to prove that as a result of the assault carried out in Zaryache Shet by the members of the unlawful assembly grievous hurt was caused to Hanma and Shankar's death was intentionally caused.
11. In our opinion, therefore, the learned Judge was right in holding that the offence under Section 148, Sections 302 and 324 read with Section 149 of the I. P. C., had been proved beyond reasonable doubt. The injuries on the person of Shankar leave no doubt whatever that the intention of the persons who inflicted these injuries was to cause his death. Shankar had on his person as many as 25 injuries and on the medical evidence there can be no doubt whatever that these injuries were inflicted by the assailants with the intention of causing Shankar's death.
The result is the orders of conviction and sentence passed by the learned Judge against theappellants are confirmed. The direction given by the learned Judge in respect of accused Nos. 3 4 and 6 that they should be detained in the Borstal School is also confirmed.
12. Order accordingly.