Dismissed

Shri Lahu Balkrishna Kadam and Others v. the State of Maharashtra

Bombay HC1 Feb 2005APEAL/1040/1988

Case brief

AI extract

What is this about?

High Court dismissed criminal appeals filed by seven accused persons convicted of murder and related offences. The court upheld the trial court's findings of fact and law, confirming the conviction based on ocular testimony, medical evidence, and recovery of weapons, addressing the defence argument regarding common object.

What did the court decide?

Appeals dismissed; judgment and order of trial court confirmed. Appellant bonds cancelled.

Shri Lahu Balkrishna Kadam and Others Vs the… — Murder and Culpable Homicide | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO.1040 OF 1988

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 1. Lahu Balkrishna Kadam )
 Age 19 years, residing at )
 Uttalsar Naka, Bakarwadi, )
 Ramji Bhayya’s Chawl, )
 Naupada, thane, now )
 residing at Railway Porter )
 Chawl, Kopri, Thane. )
 2. Anil Namdeo Mhatre, )
 age 18 years, residing at )
 Thane Civil Hospital Servant)
 Chawl, Room No.7, Thane. )
 3. Shekhar Digambar Thombre )
 age 18 years, residing at )
 Thane civil Hospital Servant)
 Chawl, Room No.8, Thane. )

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`4.`	`Raja Maruti Pawar )`
	`Age 20 years, residing at )`
	`Thane Civil Hospital Servant)`
	`Chawl, Room No.3, Thane. )`
`5.`	`Rajesh Mohanlal Solanki )`
	`age 19 years, residing at )`
	`Shakti Mill, Bhimabai Sawant)`
	`Chawl, Naupada, Thane. )`
`6.`	`Vikas Mallikarjun Gaikwad )`
	`All lodged at present Thane )`
	`Central Prison, Thane. )...Appellants`
	`(Orig. Accused`
	`Nos.1,2,3,5,6 & 7)`
	`Versus`
`1.`	`The State of Maharashtra )...Respondents`
`Mr.`	`P.P.Hudlikar with V.V.Purwant for appellants`

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 Ms. P.H.Kantharaia, APP for State

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 WITH

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 CRIMINAL APPEALNO.1042 OF 1988

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 Sunil Balkrishna Bhoir, )
 age about 20 years, residing at )
 Thane Civil Hospital Servant’s )
 Chawl, Room No.8, Thane at )
 present Thane Central Prison. )...Appellant

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 (Org.Accused No.4)

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 Versus

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 The State of Maharashtra )...Respondent

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 Mr. P.P.Hudlikar with Mr.V.V.Purwant for appellant

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 Ms. P.H.Kantharia, APP for State.

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 CORAM : R.M.S.KHANDEPARKER &

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 P.V.KAKADE, JJ.

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 DATE : 1ST FEBRUARY, 2005.

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 ORAL JUDGMENT : (Per Kakade, J.)

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 1. Both the appeals are being disposed of by this
 common judgment as they arise out of judgment and order
 passed by the learned Additional Sessions Judge, Thane
 dated 17th November, 1988 in Sessions Case No.456 of 1987
 wherein in all seven accused persons were involved and
 convicted and sentenced accordingly. Out of which
 Criminal Appeal No.1040 of 1988 is filed by original
 Accused Nos.1, 2, 3, 5, 6 and 7 whereas Accused No.4 has
 filed separate Appeal being Cri. Appeal No.1042 of 1988.
 The Trial Court framed the charges against all the accused
 persons for commission of the offence punishable under
 Sections 147, 148, 302 read with 149 of the Indian Penal
 Code and in the alternative they were charged for offence
 punishable under Section 302 read with 34 of the Indian
 Penal Code. Accused No.2 was further charged under
 Section 302 of the Indian Penal Code whereas Accused No.3
 was further charged for the offence punishable under
 Section 323 of the Indian Penal Code. All the accused
 persons were again charged for the offence punishable

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 under Section 452 of the Indian Penal Code. However, all

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 the accused persons were convicted for the offences
 punishable under Sections 147, 148, 452 of the Indian
 Penal Code and each of them were sentenced to R.I. for
 two years and to pay fine of Rs.500/= each, in default
 payment of fine they were directed to undergo further
 imprisonment for three months. Similarly all the accused
 persons were convicted for the offence punishable under
 Section 302 read with 149 of I.P.C. and each one was
 sentenced for imprisonment for life and to pay fine of
 Rs.500/=, in default to undergo R.I. for three months.
 Accused No.3 was further convicted for the commission of
 offence punishable under Section 323 of the Indian Penal
 Code and was sentenced to pay fine of Rs.500/=, in default
 to undergo S.I. for three months. It was further
 directed that all the substantive sentences would run
 concurrently.

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 2. The prosecution case in brief is thus -

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 3. The incident occurred on 3.2.1987 at about 9.00
 p.m. in the house of the deceased. About fortnight prior
 to the incident there was a quarrel between Accused No.1
 and his friends on one hand and deceased on the other.

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 Thereafter till 2.2.1987 everything was fine. On that day

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 when deceased Ramdas and his friend complainant - Kishor
 were standing in front of deceased person’s house, all the
 accused persons came there. It was about 7.30 in the
 night. Accused No.1 asked for gold pendent to the
 deceased Ramdas, which was the subject matter of earlier
 quarrel. Thereupon the deceased told him that he had
 returned it to the persons from Panchpakhadi area and will
 point out that persons if he wanted to do so. Thereupon
 accused no.2 caught hold of the collar of shirt of the
 deceased Ramdas and a scuffle took place in between
 accused no.2 and the deceased. Complainant Kishor
 intervened the quarrel along with wife of accused no.1 and
 they were separated. At that time, it is alleged that the
 hand of deceased touched to the person of wife of accused
 no.1 for which purpose a complaint was made by accused
 no.1 to outpost Kopri Police. The complainant Kishor and
 deceased also went to Police Station and reported the
 matter to the police. However, the police pacified both
 the parties and sent them back.

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 4. On 3.2.1987 at about 7.30 p.m. witness Kishor
 met the deceased Ramdas and then they went away to pan
 stall. Thereafter they took a round in the Bazar and at

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 about 9.00 p.m. both of them went to the house of the
 deceased Ramdas. Ramdas then asked the complainant Kishor
 to wait till he took his dinner and thereafter they would
 go to the complainant’s house. The complainant Kishor
 thereafter sat on the cot in the front room of the
 deceased and deceased Ramdas was taking his dinner in the
 inside room. Baburao father of the deceased also finished
 his meals and he was rinsing his hand to the towel, at
 that time the complainant Kishor saw 6 to 7 persons had
 come to the front of the house of the deceased. The
 complainant went to see who were those persons and when he
 came in front of the door he saw all the accused persons.
 At that time accused no.2 was holding open knife in his
 hand, accused nos.3 and 6 were holding swords in their
 hands, accused no.2 asked complainant to call out the
 deceased Ramdas. The complainant told them that deceased
 was taking dinner and they could talk after he had
 finished his dinner. Thereupon accused no.3 assaulted
 complainant by means of sword from its blunt side on left
 shoulder of the complainant and all the accused suddenly
 entered in the house of deceased Ramdas. Baburao father
 of the deceased tried to obstruct them at which time he
 caught hold of the sword from the hands of accused no.6.
 Due to which Baburao sustained bleeding injuries on his

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 both the hands. He was also given kick blows and all the
 accused entered into the room, where the deceased Ramdas
 was taking dinner. All the accused gave kicks and fist
 blows to the deceased Ramdas whereas accused No.2 Anil
 Mhatre stabbed the deceased Ramdas by means of knife.
 While all the accused were coming out of the house,
 witness Bhaskar, the brother of the deceased arrived
 there. Accused No.2 pointed a knife to witness Bhaskar
 and threatened him not to enter into the house and after
 that accused persons ran away. Complainant Kishor saw
 that deceased Ramdas was lying injured and was shouting
 that he was assaulted. Complainant then started to go to
 police Outpost Kopri. On the way he met with Sudhakar,
 another brother of deceased. The complainant Kishor
 informed to Sudhakar that the deceased Ramdas had
 sustained injuries and he should be brought to the Police
 outpost Kopri. Then he went to Police outpost Kopri. By
 that time Sudhakar brother of the deceased brought the
 deceased Ramdas to outpost Kopri Police. The outpost
 Kopri Police then referred the deceased Ramdas,
 complainant Kishor and witness Baburao to the Civil
 Hospital, Thane where the Doctor examined the deceased
 Ramdas and declared him as dead. At that time Doctor
 examined the complainant Kishor and witness Baburao and

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 also gave medical treatment them.

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 . The complainant narrated the incident to P.S.I.
 Sutkar, who recorded the complaint of the complainant
 Kishor at 9.45 p.m. at the Civil Hospital, Thane. The
 complaint was forwarded to the Police Station where the
 offence came to be registered at 10.15 p.m. on the
 complaint of Kishor, who was also eye witness.

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 5. The inquest panchnama was made and dead body was
 sent for post mortem. The Medical Officer completed the
 post mortem and whose report was received in due course,
 which is part of the record. Investigating Officer made
 panchnama of the scene of incident and seized certain
 articles from the spot. Statement of various witnesses
 were recorded by the Investigating Officer.

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 . On the very day of the incident accused Nos.1, 2
 and 3 were arrested and their cloths were seized under
 panchnama. On 5.2.1987 accused nos.2 and 3 were
 interrogated in the presence of panchas and recovery of
 Gupti Article No.14 and Sword Article No.15 were made at
 the instance of the said accused under Section 27 of the
 Indian Evidence Act. On 6.2.1987 accused no.4 was

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 arrested under panchnama Exh.40. On 15.2.1987 Special
 Judicial Magistrate - Shri Kulkarni was requested to hold
 identification parade of accused Nos.1 to 4. Accordingly,
 on 16.2.1987 identification parade was held with regard to
 the accused Nos.1 to 4.

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 . On the very day i.e. on 16.2.1987 accused no.5

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 was arrested and accused No.6 came to be arrested on
 18.3.1987 under panchnama. Whereas accused No.7 was
 arrested on 19.3.1987. On 19.3.1987 accused No.6 was
 interrogated in the presence of panchas and in the course
 of interrogation he volunteered to lead the police to the
 spot where he had kept the weapon of offence and
 accordingly sword article no.16 was seized at the instance
 of accused no.6 under Section 27 of the Indian Evidence
 Act.

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 6. All the articles which were attached in the

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 course of investigation were sent to Chemical Analyst for
 examination, whose report was received in due course,
 which is part of the record. On 24.3.1987 Special
 Judicial Magistrate - Kulkarni again held identification
 parade with regard to accused nos. 5, 6 and 7 and his
 report was received, which is part of the record.

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 7. On completion of the investigation the

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 charge-sheet was sent to the Court of Judicial Magistrate,
 First Class, Thane, who intern committed the case to the
 Court of Sessions.

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 8. The learned Sessions Judge, Thane framed the

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 charges against the accused for the impugned offence, to
 which they pleaded not guilty. The defence of the accused
 persons was that of total denial of any criminal
 liability. The prosecution led its evidence at length,
 which consists of eye witness account along with medical
 evidence on record as well as panch witnesses in respect
 of seizure of the weapons of offence at the instance of
 the accused persons and panchnamas of arrest as well as
 spot panchnama. On the basis of available evidence on
 record the trial judge came to the conclusion that the
 prosecution had established that the accused persons were
 guilty of unlawful assembly in commission of the offences
 contemplated under Section 452 as well as 302 of Indian
 Penal Code and accused no.3 also was convicted for offence
 punishable under Section 323 of the Indian Penal Code and
 all the accused were sentenced for offence in aforesaid

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 manner. Hence the present appeals.

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 9. We heard the learned counsel for the appellants
 in both the appeals as well as the learned A.P.P. for the
 State. With assistance from both the sides we have
 critically perused the entire evidence on record.

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 10. It is apparent that the case of the prosecution
 is founded on testimony of four eye witnesses besides,
 other circumstantial evidence including the medical
 evidence on record and therefore, it would be just and
 proper on our part to appreciate the ocular testimony
 involved in this case initially.

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 . The testimony of complainant Kishor, who is
 friend of deceased Ramdas for several years, shows that
 there were earlier altercations between the parties which
 ultimately resulted in the incident on the fateful day.
 Complainant has also stated that all the accused persons,
 giving their names in details, were seen together outside
 the house of the deceased person and accused no.2 asked
 him to call out the deceased Ramdas. Complainant informed
 him that Ramdas was taking his meals and they should wait
 till he finished his dinner at which time accused no.3
 assaulted the complainant by means of sword on its blunt

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 side on his shoulder. Then all the accused persons
 suddenly entered into the house of the deceased Ramdas.
 All the accused entered into the room where the deceased
 Ramdas was and accused No.3 and accused No.6 were holding
 swords in their hands. When accused No.6 Rajesh Solanki
 was about to assault the deceased, father of the deceased
 Ramdas caught hold of the sword of accused no.6, as a
 result of which Baburao sustained injuries on his hands.
 Then all the accused persons dragged the father of the
 deceased upto the door and gave kicks and fist blows.
 Then all the accused entered into the room where the
 deceased Ramdas was taking his meals. Firstly, the
 deceased Ramdas was given kicks and fist blows. Accused
 no.2 Anil Mhatre, who was holding open knife like a Gupti
 in his hand and he then assaulted the deceased by means of
 that weapon. Then all the accused persons ran away. When
 all the accused persons were running out, they met with
 the elder brother of deceased Ramdas outside the house.
 Accused no.2 pointed a knife to Bhaskar and asked him not
 to enter into the house. Witness Ratna Sudhakar Kajale,

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 sister-in-law of the deceased, who was serving meals to
 the deceased at the relevant time and on seeing the
 accused, was standing in the middle door of the house.
 After the accused went away the deceased was shouting that

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 he was assaulted. The complainant told him that he would
 go to the police station. While he was going to the
 police station the complainant met Sudhakar, brother of
 deceased Ramdas and he was informed about the incident and
 was asked to bring the deceased to police station and
 complainant went to inform about the incident to the
 Police. Sudhakar brought the deceased Ramdas and his
 father Baburao by autorickshaw. The police then referred
 the deceased, father of the deceased and complainant to
 Civil Hospital, Thane. However, the medical officer
 declared Ramdas dead on his arrival. Thereafter the
 complainant filed his complaint, which was recorded at the
 Civil Hospital, Thane vide Exh.30.

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 11. This version of complainant Kishor is fully
 corroborated by FIR filed by him, which was recorded
 within about 45 minuets from the incident i.e. at 10.45
 p.m. at Civil Hospital, Thane whereas the incident took
 place at about 9.00 p.m. in the house of the deceased.
 It is also pertinent to note that the complainant has
 named all the seven accused persons, as he knew them since
 earlier time and the version of the assault given in the
 FIR totally corroborates his testimony before the Court in
 all material respects. In our considered view, the

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 evidence of complainant Kishor is found to be totally
 trustworthy, firstly because it is corroborated by the FIR
 filed by him vide Exh.30, which was within 45 minuets of
 the incident and secondly, due to the reason that the
 complainant has no animosity against any of the accused
 persons to involve them falsely nor he had any occasion to
 contemplate to involve the accused falsely in the present
 case. Be as it may, the fact remains that the testimony
 of Kishor duly corroborated by his FIR is further
 corroborated by the ocular testimony of other witnesses.

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 12. P.W.2 Ratna, sister-in-law of the deceased,
 evidently was serving meals to the deceased Ramdas, when
 he was attacked by the accused persons. Her version also
 further corroborates about the incident in all respects to
 the version given by the complainant. She has further
 stated that she has identified accused Nos.1,3, 4 and 5 in
 the course of identification parade as well as before the
 court to be the assailants of deceased Ramdas. Her
 presence and fact that she witnessed the incident cannot
 be doubted for a moment because it is established beyond
 doubt that witness Baburao and his all sons including
 deceased Ramdas, Bhaskar, Sudhakar and Sunil were living
 together and Ratna is wife of Sudhakar, who was serving

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 meals to deceased Ramdas at the relevant time, therefore,
 we are also inclined to accept the testimony of witness
 Ratna as true.

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 . The prosecution has examined P.W. 3 Sunil,
 brother of deceased Ramdas, also has witnessed the
 incident and has also named the accused persons.
 According to him, accused no.2 was holding Gupti like
 knife in his hand whereas accused Nos.3 and 6 were holding
 swords in their hands. He also testified that he had his
 bicycle shop across the road. While he was at bicycle
 shop, about 3-4 auto rickshaws came in front of the shop.
 About 6-7 persons alighted from the said autorickshaws.
 Out of them four persons were known to him. They went
 towards his house. He also went to the house and saw the
 accused persons were taking to complainant Kishor but they
 did not listen to him and accused No.3 gave a blow to the
 complainant Kishor by means of sword from its blunt side.
 Thereafter they entered the house. They were resisted by
 his father Baburao but when his father caught hold of the
 sword of accused no.6, Baburao was injured in his hand and
 he was given kick and fist blows. Then those persons
 entered the room where the deceased Ramdas was taking his
 meals where accused no.2 assaulted deceased Ramdas on

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 stomach by means of Gupti. The other persons assaulted
 the deceased with their hands and while those persons were
 going out, accused no.2 pointed a knife to his elder
 brother who was coming from outside and gave threats to
 him and went away. Deceased Ramdas was lying below near
 the cot, who was subsequently taken to police outpost
 Kopri and then hospital where he was declared dead.

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 . This version is again corroborated by witness
 Bhaskar, brother of the deceased, who was not present at
 the time of assault in the house, but came on the scene
 immediately after the incident. He has stated that when
 he came to the house he saw persons coming out of his
 house and one person pointed a Gupti to his stomach and
 threatened him not to enter the house. Thereafter those
 persons left the house. When he entered the house he saw
 his father Baburao had also sustained injuries on both of
 his hands and complainant Kishor also sustained injury on
 his shoulder and deceased Ramdas was lying below near the
 cot in injured condition.

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 13. This entire evidence is again fortified by
 testimony of P.W.5 - Baburao, who has totally corroborated
 version put forth by other witnesses. Baburao, father of

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 the deceased, has stated that he was in his home, when the

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 complaint was sitting on the on the cot in the the
 deceased was taking his meals served by witness Ratna in
 the inside room, at which time one of the persons having a
 Gupti like knife and two other persons having swords along
 with others entered the house without paying any heed to
 the complainant Kishor. When the complainant asked them
 to stop, one of the person, who was short in height and
 swarthy in complexion gave a blow by means of sword by its
 blunt side on complainant’s left shoulder. Those persons
 tried to enter the house but he tried to stop them. At
 that time he caught hold of sword by both the hands, of a
 person who was of middle height and wheatish in
 complexion, that person snatched the sword with force from
 his hands, as a result of which he sustained injuries on
 fingers of both hands. Then all those persons gave kick
 and fist blows to him. Then all those persons went
 towards the place, where the deceased Ramdas was taking
 his meals and they all assaulted him with fist and kick
 blows. One of the person, who was little tall in height,
 swarthy in complexion, stabbed the deceased on his stomach
 by means of Gupti like knife and thereafter ran out of the
 house. By that time his son and his wife came to the
 house. The persons holding weapon like Gupti asked him

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 not to go ahead.

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 14. Therefore, if we take into account the basic
 texture of the entire ocular testimonies putforth by these
 witnesses there appears no doubt whatsoever about the
 involvement of all the accused persons. It is also to be
 noted that evidence of complainant is clear enough to
 establish the identity of all the assailants because he
 knew the persons since prior to the incident. Moreover,
 in support of the positive identification by complainant
 of the assailants, the evidence of identification parade
 has categorically established the identification of
 accused Nos.1, 2, 3 and 5 as well as accused No. 6 at the
 relevant time. No doubt that the evidence of
 identification parade, by its very nature, is a weak piece
 of evidence, however, in this case the positive
 identification made by the complainant Kishor, which is
 reflected again in his FIR filed within 45 minutes of the
 incident, gets support and corroboration from
 identification parade and therefore, to that extent we
 accept the evidence of identification parade as
 corroborative piece of evidence to the ocular testimony
 given by the said witnesses.

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 15. The medical evidence is brought on record
 through the testimony of P.W. 9 - Dr. Jejurikar, who has
 examined the complainant Kishor as well as witness
 Baburao. Complainant Kishor was examined at about 9.35
 p.m. in casualty ward of the hospital and was found to
 have received following injury :

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 Clean wound on left infra clavicular region
 middle third of the clavic 1/4 cm x 1/4 cm x 1/4
 cm.

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 Similarly Baburao was examined at 9.40 pm. and was found
 to have received following injuries -

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 Clean incised wound on the right hand at the
 distal former kreez 1/2 cm. 1/2 cm x 1/4 cm.
 and on first web space 1/2 cm. x 1/2 cm. x 1/2
 cm. Injury on first web space is also a clean

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 incised wound and it is injury no.2.

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 Clean incised wound on left thumb terminal fale
 x 1/2 cm. x 1/2 cm. x 1/2 cm.

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 If we take into account the testimonies of the Complainant

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 Kishor as well as Baburao as well as other witnesses it is
 clear enough that the complainant had suffered injury on
 his left shoulder, whereas Baburao had suffered clean
 incised wounds on his right hand as well as left thumb,
 which are indicative of the fact that he tried to grab
 sword from the hands of accused no.6, but it was snatched,
 as a result of which such injuries occurred.

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 16. Dr. Jejurikar’s evidence is also brought on

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 record to show that he has performed post-mortem
 examination on the body of deceased Ramdas. The following
 were injuries found on the body of Ramdas -

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 1. Stab wound on epigastric region right to
 midline 1" x 1/2" x deep to peritoneal cavity

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 direct cavity direct into backward and upward.

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 2. Incised wound over left index finger at
 metacorpus fallengial joint 1/2" x 1/4" x 1/8"

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 3. Incised wound on left thumb metacorpus
 fallengial joint 1/2" x 1/4" x 1/8"

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 According to medical officer, probable cause of death was

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 due to hypovolumia due to stab injury i.e. injury No.1,
 which was sufficient in the natural course to cause death.

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 . The Medical evidence therefore clearly
 corroborates the testimonies of the eye witnesses
 regarding the occurrence of injuries not only on the
 persons of deceased but also on the persons of complainant
 as well as witness Baburao in the course of the incident.

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 17. The circumstantial evidence on record further

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 shows that the weapons of offence were seized at the
 instance of the accused nos.2, 3 and 6 when they
 volunteered to lead the police to the place where the
 weapons were kept or hidden. The evidence of panch
 witness P.W. 6 along with the testimony of Investigating
 Officer corroborated by memorandum Exh.43 and recovery
 panchnama Exh.43A shows that Article No.14 Gupti was
 recovered at the instance of Accused no.2. Similarly
 Exhibit-44 Memorandum and Exh.44A recovery panchnama shows
 that Article-15 sword was recovered at the instance of
 accused no.2 are also duly testified by the panch witness
 No.6 which are duly corroborated by the evidence of

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 Investigating Officer. So also the evidence of panch
 witness P.W.7 Lokhande shows that recovery of sword was

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¶102

 made at the instance of accused No.6 for which Memorandum

¶103

 was made at Exh.46 and recovery panchnama was made at
 Exh.46-A. We have carefully perused the evidence of
 witnesses as well as recovery panchnama and memorandum
 vis-a-vis testimony of Investigating Officer recorded
 under Sec.27 of the Evidence Act are duly complied with
 and the seizure is legal and valid under the said
 provisions of law. Therefore this corroborative piece of
 circumstantial evidence is again indicative of the
 involvement of the accused persons.

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 18. This entire evidence is again supported by other
 circumstantial evidence as such Chemical Analysis Report
 Exhs.68, 70, 72 and 73 as well as various panchnamas drawn
 by the police at various times with regard to the seizure
 of incriminating articles as well as relevant articles
 such as sample of blood taken from the scene of incident.
 As we have noted that the evidence of identification
 parade, however weak, definitely corroborates the
 prosecution story regarding involvement of the identified
 accused persons.

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 19. In this regard we must note that in the course
 of perusal of the evidence we did come across minor

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¶107

 discrepancies and contradictions in the testimonies of the
 witnesses, however, those were definitely not of such
 nature to render the very fabric of the prosecution
 evidence doubtful.

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 20. Mr. Hudlikar, the learned counsel for the
 appellants sought to raise various objections with regard
 to the prosecution evidence on record. It was urged that
 if we perused the evidence of the complainant, it was
 obvious that he was not in a position to witness the
 actual incident when he was sitting on the cot in the
 front room. However, it must be noted that the entire
 house consists of two room of normal size and by no
 stretch of imagination it can be said that the complainant
 would not be in position to witness the assault from his
 place. Similarly, evidence of Ratna is also sought to be
 attacked on this very ground. However, it is quite
 evident that she was serving meals to deceased Ramdas at
 the time when he was attacked and assaulted and therefore,
 it cannot be said that she was not in a position to
 witness the incident at all. So far as evidence of
 Baburao and complainant Kishor are concerned, they were
 evidently injured persons. Baburao tried to catch hold of
 sword from the hands of the accused no.6, as a result of

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¶110

 which he sustained incised wounds on his fingers. Under

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 the circumstances their presence cannot be doubted even
 for a moment. No doubt the complainant is a friend of
 deceased whereas other eye witnesses are family members.
 However, fact that witness is a close relative and
 consequently is a partisan witness cannot be a ground to
 reject his testimony. Relationship is not a factor to
 affect credibility of a witness. It is more often than
 not that a relation would not conceal actual culprit and
 make allegations against an innocent person. No doubt
 while approaching such evidence the court has to adopt a
 careful approach and analyse evidence to find out whether
 it is cogent and credible. In the present case there is
 absolutely no doubt whatsoever that relative witnesses
 were present at the time and their presence was quite
 natural considering surrounding circumstances.

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 21. Mr. Hudlikar, the learned counsel for the
 appellants further submitted that medical evidence shows
 that there was only one fatal injury on the person of the
 deceased, moreover, according to him, evidence is not
 sufficient to reflect common object for commission of
 murder on the part of the accused persons and therefore,
 their conviction with the aid of Section 149 of the Indian

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 Penal Code cannot sustain. This was urged on the basis of

¶115

 evidence that only accused no.2 stabbed the deceased and
 other persons only gives fist blows and kicks to the
 deceased and therefore, common object to commit murder is
 not evident. We have given our anxious consideration to
 this proposition. However, we prefer to disagree with the
 submission made on behalf of the appellants. It cannot be
 overlooked that not only accused no.2 but accused nos.3
 and 6 were also armed with swords. Other accused persons
 may not be armed with lethal weapons like numbers 2, 3 and
 6, however, the evidence sufficiently shows that they came
 to the house of the accused with predetermination and
 executed the assault in premeditated manner despite the
 fact that complainant as well as witness Baburao tried to
 stop the accused persons from assaulting the deceased. In
 this regard the Apex Court in the case of Bhargavan and
Ors. vs. State of Kerala reported in 2004 Cri. L.J.
646 has observed as -

¶116

 "It cannot be laid down as general proposition
 of law that unless an overt act is proved
 against a person, who is alleged to be a member
 of unlawful assembly, it cannot be said that he
 is a member of an assembly. The only thing

¶117

 : 27 :

¶118

 required is that he should have understood that
 the assembly was unlawful and was likely to
 commit any of the acts which fall within the
 purview of S.141. The word "object" means the
 purpose or design and, in order to make it
 ‘common’, it must be shared by all. In other
 words, the object should be common to the
 persons, who compose the assembly, that is to
 say, they should all be aware of it an concur in
 it. A common object may be formed by express
 agreement after mutual consultation, but that is
 by no means necessary. It may be formed at any
 stage by all or a few members of the assembly
 and the other members may just join and adopt

¶119

 it."

¶120

 Therefore, in the present case before us, we have seen
 that though only three persons were armed with lethal
 weapons, the common object which can be attributed is
 apparent from the evidence which culminated in murder of
 the deceased and therefore, there is no doubt whatsoever
 that common object of all the accused persons was commit
 the murder of deceased for which earlier quarrel was the
 motive, which is sufficiently brought on record. We may

¶121

 : 28 :

¶122

 note here that the purpose for which the members of the

¶123

 assembly set out or desired to achieve is the ‘object’.
 If the object desired by all the members is the same, the
 knowledge that is the object which is being pursued is
 shared by all the members and they are in general
 agreement as to how it is to be achieved and that is now
 the common object of the assembly. An object is
 entertained in the human mind, and it being merely a
 mental attitude, no direct evidence can be available and
 like intention, as generally to be gathered from the act
 which the person commits and the result therefrom. Though
 no hard and fast rule can be laid down under the
 circumstances from which the common object can be culled
 out, it may reasonably be collected from the nature of the
 assembly, arms it carries and behaviour at or before or
 after the scene of incident.

¶124

 . In view of this aspect we have no doubt
 whatsoever that the accused persons at the relevant time
 and place formed unlawful assembly and formed common
 object to kill the deceased, as a result of earlier
 quarrel and hence executed the act of murder with common
 object. Therefore, under the circumstances it cannot be
 said that all the accused persons did not entertained the

¶125

 : 29 :

¶126

 common object to kill the deceased Ramdas. The evidence
 on record on the other hand is sufficient to establish
 beyond reasonable doubt that the common object and the
 unlawful assembly of the accused persons was to kill
 Ramdas and they have executed it in brutal manner.

¶127

 . The evidence on record also is sufficient to
 show that the ingredients of Section 452 of Indian Penal
 Code are duly proved by the prosecution evidence and
 therefore, the trial court has rightly recorded conviction
 under that count. Similarly the evidence also establishes
 that the conviction of accused no.3 independently under
 Section 323 of Indian Penal Code is also sustainable in
 view of the fact that he made assault on the witness while
 committing the murder of deceased Ramdas. Therefore, we
 have no doubt whatsoever that all the accused persons are
 guilty of commission of offence punishable under Section
 302 r/w 149 of Indian Penal Code as well as under Sections
 147, 148 and 452 and accused no.3 is guilty of offence
 punishable under Section 323 of the Indian Penal Code.
 The reasoning adopted and the findings recorded by the
 learned Trail Court appear to be just, legal and proper
 based on appropriate evidence on record and therefore, it
 would brook no interference by this Court.

¶128

 : 30 :

¶129

 22. In the result, both the appeals are hereby

¶130

 dismissed. The judgment and order dated 17th November,
 1988 passed by the Additional Sessions Judge, Thane in
 Sessions Case No.456 of 1987 is hereby confirmed. The
 Appellants/Accused Nos.1 and 3 in Criminal Appeal No.1040
 of 1988 are reported dead. Remaining Accused are on bail
 and shall surrender to undergo the sentence as per the law
 before the Sessions Judge, thane within four weeks from

¶131

 today. Their bail bonds stand cancelled.

¶132

 (R.M.S.Khandeparkar,J.)

¶133

 (P.V.Kakade, J.)

Shri Lahu Balkrishna Kadam and Others v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Shri Lahu Balkrishna Kadam and Others v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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