Research › Search › Judgment

Bombay High Court · body

2005 DIGILAW 1008 (BOM)

Bhagwat Sudam Jadhav v. State of Maharashtra

2005-08-10

P.B.GAIKWAD, V.G.MUNSHI

body2005
Judgment P. B. GAIKWAD, J. ( 1 ) THE appellants- original accused Nos. 1 to 3 and 5 have filed criminal Appeal No. 192 of 1996, challenging the judgment and order of conviction and sentence, passed by the learned Additional sessions Judge, Ambajogai, dated 23-4-1996 in Sessions Case No. 28 of 1992, convicting them for the offences punishable under sections 147,148, 324 read with 149 of Indian penal Code (IPC) and sentencing them to suffer rigorous imprisonment for one year and to pay fine of Rs. 300/- in default, to suffer rigorous imprisonment for one month. The appellant-original accused No. 4 has filed Criminal Appeal No. 242 of 1996, challenging the order of conviction and sentence passed in the same Sessions Case against him, for the offence under Section 302 read with Section 149 of IPC and directing him to suffer imprisonment for life and to pay fine of Rs. 1,000/- in default, to suffer rigorous imprisonment for three months so also convicting and sentencing him for the offences punishable under Sections 147 and 148 of IPC and directing him to suffer rigorous imprisonment for one year and to pay fine of rs. 300/ -. Criminal Appeal No. 586 of 1996 is filed by the State, challenging the judgment and order of acquittal in the same case, thereby acquitting the accused Nos. 1 to 3 and 5 for the offences punishable under Section 302 read with Section 149 of IPC. As all the above three appeals arise out of the same judgment, they are being disposed of by this common judgment. ( 2 ) THE brief facts leading to the present appeals are as under :- the appellants and injured Narendra, swapneel and Rajabhau are residents of village ghatnandur. Narendra and Swapneel were taking education at Latur and Udgir respectively and on account of Diwali festival during 3-11-1991 to 16-11-1991 they had been to their native place Ghatnandur. Narendra and rajabhau are the real brothers while Swapneel was their cousin and his father used to reside at Udgir. It is alleged that the accused Nos. 1 and 5 are real brothers whereas the accused nos. 2 to 4 are their relations. The accused nos. l and 5 were running a "krishi Seva kendra" at Ghatnandur. Narendra and rajabhau are the real brothers while Swapneel was their cousin and his father used to reside at Udgir. It is alleged that the accused Nos. 1 and 5 are real brothers whereas the accused nos. 2 to 4 are their relations. The accused nos. l and 5 were running a "krishi Seva kendra" at Ghatnandur. It is alleged that Narendra had some exchange of words with the accused No. 2 dnyanoba in November, 1991 at the village and on that count, accused Dnyanoba extended threats to Narendra that he will see him. Narendra disclosed in that respect to his father prabhuappa. Prabhuappa called accused No. 2 and his father and requested not to quarrel with narendra. Annoyed thereby, on 10-11-1991, at about 8. 30 or 8. 45 p. m. when Swapneel and narendra were proceeding towards Railway gate from Bazar chowk they were assaulted with stick. The accused Nos. 3-Vishnu and 4-Shridhar also came there. Vishnu was holding chain while Shridhar was having a stick with him. They also assaulted Narendra and swapneel. Rajabhau was in front of his shop. He noticed that his brothers were assaulted by accused in front of Vandana Hotel in Bazar lane. He proceeded towards the place of incident and it is alleged that the accused, along with some other persons, including accused No. 5 Suresh and others, assaulted Narendra, Swapneel and rajabhau. It is further alleged that Raghunath, uncle of Narendra came thereafter hearing the commotion and that time, accused No. 4 shridhar hit Raghunath with stones on his head due to which he sustained injury. Some villagers also gathered there. The accused then left the place. Injured Raghunath, Narendra, swapneel, Rajabhau and one Chandrakant were taken to Ghatnandur Hospital. Condition of raghunath was serious and therefore, he was referred to Ambajogai Hospital, where he succumbed to the injury sustained by him, while under treatment on 11-11-1991 at about 6 a. m. approximately. Narendra gave information in respect of the incident. Crime No. 149 of 1991 was registered initially for the offences under sections 147,148,324 read with 149, 307 read with 149 of IPC and after death of Raghunath, section 302 of IPC came to be added to the said crime. Narendra gave information in respect of the incident. Crime No. 149 of 1991 was registered initially for the offences under sections 147,148,324 read with 149, 307 read with 149 of IPC and after death of Raghunath, section 302 of IPC came to be added to the said crime. ( 3 ) POLICE Sub-Inspector visited the place of incident, prepared spot panchanama, held inquest over the dead body of Raghunath, referred the same for post-mortem, recorded statements of certain witnesses and arrested the accused. The accused produced clothes which were on. their person. Those were attached under panchanama, Clothes on the person of deceased Raghunath were also attached. The accused, while in the custody made a disclosure statement and pursuant thereto, sticks were attached at the instance of the accused. Police Sub-Inspector then collected post-mortem report, injury certificates and after completing the investigation, submitted charge-sheet before the learned judicial Magistrate (First Class), who, in turn, committed the case to the court of Additional sessions Judge, Ambajogai. ( 4 ) IT is further alleged that out of the same incident, another Crime No. 250 of 1991 was registered for the offences under Sections 147, 148, 324 read with 149 of IPC, on the basis of the complaint filed by accused No. 1 bhagwat as in the said incident, Bhagwat, his brother Suresh and original accused No. 6 sustained injuries. As both the crimes were arising out of the same incident, subsequent case was also committed by the learned Judicial magistrate (First Class) to the Court of sessions. In the complaint filed by Bhagwat, narendra, Swapneel, Arun, Prabhuappa and some others have been shown as accused. ( 5 ) THE learned Additional Sessions judge framed charge at Exhibit-91 against the appellants and others for the offences punishable under Sections 147, 148 and 302, 324 read with 149 of IPC on 10-1-1996. The accused pleaded not guilty to the charge and claimed to be tried. According to them, they have been falsely involved in the crime and in fact, Narendra, Swapneel, Arun, Prabhuappa and others had assaulted accused No. 1 bhagwat, accused No. 5 Suresh and original accused No. 6 and they sustained injuries in the said incident. Even, according to them, one chandrakant was also assaulted in the said incident. ( 6 ) TO connect the accused with the said crime, the prosecution adduced oral and documentary evidence. Even, according to them, one chandrakant was also assaulted in the said incident. ( 6 ) TO connect the accused with the said crime, the prosecution adduced oral and documentary evidence. So far ocular evidence is concerned, the prosecution has examined eleven witnesses. PW-1 is Prabhu, an eye-witness and panch as regards place of incident. PW-2 is Suryabhan, a panch as regards attachment of clothes on the person of accused. PW-3 Devanand is another panch, as regards attachment of clothes on the person of deceased raghunath. PW-4 Narendra is complainant and an injured. The complaint given by him is proved at Exhibit-132. PW-5 is Swapneel, another injured. PW-6 Rajabhau and PW-7 somnath are the eye-witnesses to the said incident. PW-8 is Laxman is a panch-witness about disclosure statement made by accused, however, he turned hostile and did not support the prosecution case. PW-9 is Dr. Ranganath, who had examined injured and was on duty at primary Health Center, Ghatnandur. PW-10 is dr. Sudam, another Medical Officer, attached to Hospital at Ambajogai, who performed post-mortem over the dead body of Raghunath. He has proved post-mortem report (Exhibit-149) and provisional certificate as regards cause of death at Exhibit-150. PW-11 is Balasaheb, an investigating Officer. ( 7 ) THE learned Additional Sessions judge after considering the above evidence on record, acquitted the original accused Nos. 6 to 16, concluding that there is no evidence against them. Accused No. 4 Shridhar was held responsible for causing murder of Raghunath and therefore, he was convicted and sentenced for the offences under Sections 147, 148, 302 read with 149 of IPC. Accused Nos. 1 to 3 and 6, namely; Bhagwat, Dnyanoba, Vishnu and suresh, were held to have committed the offence under Sections 147, 148 and 324 read with 149 of IPC and accordingly sentenced them as said earlier. The accused Nos. l to 5 have filed two appeals and State has filed third appeal against the acquittal of the accused Nos. 1 to 3 and 5 under Sections 302 read with 149 of IPC. The State, however, did not challenge the order of acquittal of accused Nos. 6 to 16. ( 8 ) HEARD learned counsel for the respective parties at length. ( 9 ) ON behalf of the appellants, it is submitted by S/shri. Salunke and Choudhary, learned Advocates that the order of conviction and sentence is not proper and justified. The State, however, did not challenge the order of acquittal of accused Nos. 6 to 16. ( 8 ) HEARD learned counsel for the respective parties at length. ( 9 ) ON behalf of the appellants, it is submitted by S/shri. Salunke and Choudhary, learned Advocates that the order of conviction and sentence is not proper and justified. According to them, on bare perusal of the first information report, the involvement is shown to be of four persons i. e. the accused Nos. 1 to 4 and therefore, the order of conviction for the offences under Sections 147, 148 and punishment for the offences punishable under sections 302 and 324 with the aid of Section 149 of IPC is not proper and justified. According to them, to convict the accused with the aid of Section 149 of IPC, there must be an unlawful assembly. The common object of the said assembly must be as defined under any of the clauses of Section 141 of IPC and in the present case, there is no evidence that the appellants/accused shared a common object, there is no evidence about their overt act and there is no evidence that there was an unlawful assembly and common object of the said assembly falls under any of the clauses of section 149 of IPC. Secondly, according to them, there is only evidence of interested witnesses i. e. PW- 4 Narendra. PW-5 Swapneel, PW-6 Rajabhau and PW-7 Somnath. According to them, somnath is related with Narendra and Swapneel and therefore, the court below ought to have scanned the evidence of these witnesses with ' proper care and caution. However, according to them, the Court has failed to scan the evidence of these witnesses in proper perspective and has arrived at a wrong conclusion convicting the appellants for the offences punishable under Sections 147, 148, 324 read with 149 of IPC; as against the accused no. 4 for the offence punishable under Section 302 read with Section 149 of IPC. Thirdly, according to the learned counsel for the appellants, there is material inconsistency in the evidence of Narendra and somnath. Further, their evidence is inconsistent with Prabhu (PW-1), an eye-witness so also medical evidence of PW-9 Dr. Ranganath and therefore, the Court below ought to have discarded the evidence of injured witnesses. Thirdly, according to the learned counsel for the appellants, there is material inconsistency in the evidence of Narendra and somnath. Further, their evidence is inconsistent with Prabhu (PW-1), an eye-witness so also medical evidence of PW-9 Dr. Ranganath and therefore, the Court below ought to have discarded the evidence of injured witnesses. Fourthly, according to them, the prosecution has failed to bring on record, the genuineness of the offence and that who was the aggressor. According to them, in fact, PW- 4 Narendra, PW-5 Swapneel, Arun, prabhuappa and some 14-15 persons had assaulted accused No. 1 Bhagwat and his brothers Suresh and Anil, but this aspect has been completely over looked by the court below. Lastly, according to them, the Court below has wrongly concluded that the alleged incident took place in front of Vandana Hotel, when in fact, said incident took place in front of Krishi Seva Kendra, owned by the accused no. 5 Suresh and accused No. l Bhagwat. According to them, even the accused have also explained the injuries sustained by deceased raghunath as at the relevant time he was heavily drunken. PW-4 Narendra and PW-5 Swapneel, along with other persons came to the shop of the accused No. 1 Bhagwat, dragged him from the said shop ana assaulted him and when raghunath who was under the influence of liquor, while entering the shop of accused No. 1 bhagwat lost his balance and fell in the gutter, due to which he sustained an injury on his head. However, this aspect has been completely over looked by the Court below. Thus, in short, according to learned advocates for the appellants, there is perversity in appreciating the evidence on record by the court below. So far accused No. 4 is concerned, it is further submitted that at any rate, the offence under Section 302 of IPC cannot be gathered safely as from the evidence on record, it is alleged that the accused No. 4 pelted stone which hit Ranganath and therefore, no intention or knowledge so as to commit murder of Ranganath can be gathered. At the most, according to them, it will be an offence of causing grievous hurt to Ranganath, which will fall under Section 325 of IPC. Thus, learned counsel for the appellants prayed to allow the appeal. At the most, according to them, it will be an offence of causing grievous hurt to Ranganath, which will fall under Section 325 of IPC. Thus, learned counsel for the appellants prayed to allow the appeal. ( 10 ) ON the other hand, it is submitted by Shri. Varale, learned APP for the State that the evidence of Narendra, Swapneel, Rajabhau and Somnath (PWs. 4 to 7) is consistent about the incident, manner in which it took place, assaulted by the accused with stick and chain and by stone on Rangnath. According to him, the court below has properly scanned the evidence on record and rightly convicted the accused No. 4 for the offence under Section 302 read with 149 of IPC. He further submitted that the Court below ought to have convicted the accused Nos. 1 to 3 and 5 for the offence under Section 302 read with Section 149 of ipc. He, therefore, requested to dismiss the appeal filed by the appellants and allow the appeal filed by the State and to convict the appellants for the offence under Section 302 read with 149 of IPC. ( 11 ) CONSIDERING the submissions on behalf of the parties to the appeal, it is now necessary to see whether the order of conviction by the court below is proper and justified, whether the evidence on record has been scanned properly and whether the evidence of injured witnesses is appreciated properly. ( 12 ) BEFORE considering the evidence on record, it is necessary to give some undisputed facts. From the evidence on record, it is seen that at Ghatnandur there is an outpost of Parali (Rural) Police Station. There is primary Health Center. The weekly bazar takes place on Sunday. That there is a bazar chowk and from this bazar chowk, a road leads in East- west direction and on both sides of road, there are shops. Krishi Seva Kendra, belonging to accused Nos. l and 5 is to the South of said road, facing towards North and on the same road, there is hotel Vandana, some other shops and a Khandoba temple. Prabhuappa, father of Narendra (PW-4) is also having a cloth shop in the same area. As regards location, there is no dispute. Krishi Seva Kendra, belonging to accused Nos. l and 5 is to the South of said road, facing towards North and on the same road, there is hotel Vandana, some other shops and a Khandoba temple. Prabhuappa, father of Narendra (PW-4) is also having a cloth shop in the same area. As regards location, there is no dispute. However, it is disputed that the alleged incident took place in front of Krishi seva Kendra belonging to accused No. 1 bhagwat and accused No. 2 Dnyanoba and on the other hand, it is contended on behalf of the prosecution that the said incident took place in front of Vandana Hotel. As a matter of fact, considering the evidence and location, the distance between Vandana Hotel and Krishi seva Kendra is hardly 50 feet and it is the allegation that injured Swapneel and Narendra, when they were proceeding towards Railway gate from Bazar Chowk and when they were on road in front of Vandana Hotel, the accused assaulted them and dragged them towards the krishi Seva Kendra. Thus, considering this particular aspect and distance between these two places, it can be safely said that both the crimes i. e. Crime No. 249 of 1991 and Crime no. 250 of 1991 arise out of the same incident and thus submission made on behalf of the accused that the place of incident was wrongly shown by the prosecution is not correct. ( 13 ) ANOTHER aspect is whether the appellants are the authors of the injuries sustained by Narendra, Swapneel and Rajabhau so also deceased Raghunath. In this respect, evidence of PW-7 Somnath and injured witnesses is material. It is true that PW-4 narendra, PW-5 Swapneel, PW-6 Rajabhau and pw-7 Somnath are related to each others. Evidence of PW-7 Somnath therefore, needs to be scanned cautiously. According to somnath, he runs a hotel in the same bazar lane and at some distance from the place of incident and therefore, his presence at the relevant time when the incident took place can safely be said as natural. He has given the details in respect of the incident, manner in which it took place and assault by accused nos. 1 to 3 on Narendra and Swapneel. Even he has also given the details in respect of the assault by accused No. 4 Shridhar, who hit a stone on Raghunath, due to which he sustained injury. He has given the details in respect of the incident, manner in which it took place and assault by accused nos. 1 to 3 on Narendra and Swapneel. Even he has also given the details in respect of the assault by accused No. 4 Shridhar, who hit a stone on Raghunath, due to which he sustained injury. It is further seen from the evidence of pw-4 Narendra that accused No. 3 Vishnu was holding chain in his hand and assaulted him. Even accused No. 1 Bhagwat and accused No. 2 dnyanoba had assaulted PW-4 Shridhar and pw-5 Suresh with sticks and thus, we find that the evidence of these three witnesses i. e. PW-4 Narendra, PW-5 Swapneel and PW-7 somnath is consistent on material particulars and also consistent with the medical evidence of PW-9 Dr. Ranganath, who has referred the nature of injuries in certificates Exhibits-144 to 146. Thus, it can be safely said that the accused Nos. 1 to 3 are responsible for causing the injuries of PW-4 Narendra and PW-5 swapneel. Evidence of PW-6 Rajabhau shows that accused No. 1 Bhagwat had assaulted him with stick and his evidence is again consistent with the medical evidence. So far involvement of accused No. 5 suresh is concerned, we find that no overt act is attributed, as in fact, so far assault by Suresh with stick is concerned, there is inconsistency in the evidence of PW-6 Rajabhau. According to him, accused No. l Bhagwat had assaulted him while according to PW-5 Swapneel, rajabhau was assaulted by accused No. 5 suresh. Rajabhau has however, not stated anything against the accused No. 5 and in view of this inconsistency in the evidence of PW-5 swapneel and PW-6 Rajabhau, about involvement of accused No. 5 Suresh, I find that benefit of doubt needs to be given to accused No. 5 Suresh and the order of conviction against him needs to be set aside. ( 14 ) ANOTHER material aspect is whether the prosecution has succeeded in proving that Raghunath met homicidal death, for which a reference to inquest Exhibit 117, post-mortem report Exhibit-149, provisional death certificate giving cause of death and evidence of PW-10 Dr. Sudam is necessary. On perusal of the evidence of PW-10 dr. Sudam we find that this witness has given the details in respect of the injuries sustained by deceased. Sudam is necessary. On perusal of the evidence of PW-10 dr. Sudam we find that this witness has given the details in respect of the injuries sustained by deceased. He has referred in column No. 17 those injuries, while the internal injuries corresponding to external injury Nos. 1 and 3 are referred in column No. 19. The medical officer has also given cause of death as an head injury. If the evidence of PW 10. Dr. Sudam is read together with the provisional certificate as regards cause of death and post-mortem report, we find that the prosecution has succeeded in proving that Raghunath met homicidal death. ( 15 ) FURTHER aspect will be as to whether the prosecution has succeeded in proving that there was an unlawful assembly, the common object of unlawful assembly was to cause murder of Raghunath, cause injuries to Narendra, Swapneel, Rajabhau and chandrakant and further, whether from the evidence on record, whether offence will be of under Section 302 of IPC. ( 16 ) A reference, in this respect, is necessary to Section 149 of IPC, which reads as under :- "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. "it is true that it is a general principle that a person is liable for what he himself does and not for what other persons do. Section 149 is an exception to the general rule in that it makes a member of an unlawful assembly vicariously liable, under the circumstances mentioned in the section for an offence committed by another member of the assembly. Thus, in order that this section may apply the accused must be a member of an unlawful assembly. Further, in order that this section may apply the members of the assembly must have known that such offence was likely to be committed in prosecution of the common object of the assembly and before recording conviction under Section 149 of IPC, essential ingredients of Section 141 of IPC must be established. Further, in order that this section may apply the members of the assembly must have known that such offence was likely to be committed in prosecution of the common object of the assembly and before recording conviction under Section 149 of IPC, essential ingredients of Section 141 of IPC must be established. Thus, the existence of unlawful assembly is necessary ingredient of the offence. However, when the existence of such assembly is not proved or the accused was not member of unlawful assembly at the time of commission of offence, he cannot be convicted with the aid of Section 149 of IPC. Further, an unlawful assembly of less than five members or less is not an unlawful assembly within the meaning of Section 141 of IPC and cannot, therefore, form the basis for conviction, either under section 147 or Section 148 of IPC. Further, in order to constitute an unlawful assembly, there must be a common object and each member of the assembly must have shared the common object. ( 17 ) IN the present case, on close scrutiny of evidence on record and more particularly that of complainant PW-4 narendra, if read together with the complaint exhibit-132, it is seen that according to him, accused No. 1 Bhagwat and accused No. 2 dnyanoba came from opposite direction when the complainant and Swapneel were proceeding towards Railway Gate and assaulted them with sticks. It is alleged that accused No. 3 Vishnu and accused No. 4 Shridhar came there thereafter and accused No. 3 assaulted the complainant and Swapneel so also Rajabhau and accused No. 4 hit a stone to Raghunath, who had arrived at the spot to pacify the matter and accordingly, they sustained injuries. Thus, from the evidence on record, it cannot be gathered that there was an unlawful assembly of five or more persons and the common object of the said assembly was to commit murder of raghunath or to cause injuries to Narendra, rajabhau and Swapneel. Even, it cannot be gathered that all the appellants have shared the common object as it will be seen from the factual aspects and from the evidence of narendra, Swapneel and Rajabhau. Thus, we find that the order of conviction for the offences punishable under Sections 147, 148 and 323 with the aid of 149 of IPC is definitely not justified. However, the evidence on record as against the accused Nos. Thus, we find that the order of conviction for the offences punishable under Sections 147, 148 and 323 with the aid of 149 of IPC is definitely not justified. However, the evidence on record as against the accused Nos. 1 to 3 for assaulting narendra (PW-4), Swapneel (PW-5) and rajabhau (PW-6) is consistent and satisfactory. It is also consistent with the medical evidence and injury certificates Exhibits 144 to 146. The nature of injuries was simple and therefore, the court below was definitely justified in convicting the accused Nos. l to 3 for the offence under Section 324 of IPC. However, we find that the common intention of accused nos. 1 to 3 to cause injuries to PW-4 Narendra and PW-5 Swapneel can safely be gathered and therefore, the accused Nos. 1 to 3 i. e. Bhagwat, dnyanoba and Vishnu need to be convicted for the offence punishable under Section 324 read with Section 34 of IPC. It is submitted by Shri. Choudhary, learned Advocate for the accused, that the accused were in custody for the period of four and half months and therefore, we find that the sentence, which they have already undergone, will meet the ends of justice. We further find that the Court below is definitely justified in acquitting the accused Nos. l to 3 and 5 for the offence punishable under Section 302 read with 149 of IPC and therefore, the appeal filed by the State needs to be dismissed. ( 18 ) THE last aspect will be as regards the order of conviction under Section 302 read with 149 of IPC against the respondent No. 4. As we have already held, the Court below has committed an error in concluding that the appellants/accused were members of unlawful assembly. We further find that accused No. 4 shridhar needs to be held responsible for his individual acts, as from the evidence on record, it can be gathered safely that accused No. 4 shridhar is the person who hit stone to raghunath, due to which he sustained injury and on account of the said injury, there is a linear fracture of skull. Evidence of PW-10 dr. Sudam and post-mortem report also sufficiently makes it clear that Raghunath died on account of head injury. On perusal of column No. 17 of post-mortem report, it is seen that other injuries are of minor nature i. e. injury nos. Evidence of PW-10 dr. Sudam and post-mortem report also sufficiently makes it clear that Raghunath died on account of head injury. On perusal of column No. 17 of post-mortem report, it is seen that other injuries are of minor nature i. e. injury nos. 4 to 6 and the injury Nos. l to 3 are concerned, those are stitched wounds and on account of blow with stone there was a fracture. Considering the act on the part of the accused, nature of injuries and weapon used, we find that the act on the part of the accused No. 4 Shridhar does not fall under any of the clauses of Section 300 of IPC so as to sustain conviction for the offences punishable under Section 302 of IPC. It is necessary that the act must fall under any of the clauses of section 300 of IPC. Further reference is necessary to the evidence of PW-10 Dr. Sudam. On close scrutiny of his evidence, it appears that according to him, on external examination he noticed near about six injuries which are referred in column No. 17. The injury No. 1 is contused lacerated wound on left frontal prominence. Injury No. 2 is stitched lacerated wound on left ear Penna and injury No. 3 is contused lacerated wound on left mastoid region. Injury Nos. 4 to 6 are abrasions and the internal injuries in Column No. 19 are linear fracture of skull, subdural haematoma on left frontal right parietal and right temporal lobes. Cause of death is given as head injury. We have referred this particular aspect in detail because in the evidence of this witness, there is no whisper that the injuries sustained by raghunath were sufficient in ordinary course of nature to cause his death. Even from the evidence on record, it is seen that, there is one blow with stone by accused No. 4 Shridhar, due to which he sustained injuries Nos. l to 3 as referred in column No. 17 and therefore, we find that the intention to commit murder or a knowledge that the injury is likely to cause death, cannot be gathered safely. At the most, it can be said that the accused committed an offence causing grievous hurt by hitting stone and thereby committed an offence under Section 325 of IPC and thus, the appeal filed by the accused No. 4 Shridhar deserves to be allowed. At the most, it can be said that the accused committed an offence causing grievous hurt by hitting stone and thereby committed an offence under Section 325 of IPC and thus, the appeal filed by the accused No. 4 Shridhar deserves to be allowed. The order of conviction for the offences punishable under Sections 302 read with 149 of IPC needs to be set aside and the accused no. 4 needs to be convicted for his individual act for the offence under Section 325 of IPC. ( 19 ) IN the result, (A) Criminal Appeal No. 192 of 1996 filed by the original accused Nos. 1, 2, 3 and 5 is partly allowed. The order of conviction and sentence passed against the appellant-accused No. 5 suresh Sudam Jadhav for the offences punishable under Sections 147, 148, 324 read with 149 of Indian Penal Code is set aside and he is acquitted for the offences with which he was charged. The order of conviction as against the appellants-accused No. 1 Bhagwat Sudam jadhav, accused No. 2 Dnyanoba Govind jadhav and accused No. 3 Vishnu Ramkrishna jadhav for the offences punishable under sections 147,148,324 read with 149 of Indian penal Code is set aside. However, the accused nos. 1, 2 and 3 are convicted for the offence punishable under Section 324 read with Section 34 of Indian Penal Code and they are directed to suffer imprisonment for the period which they have already undergone. (B) Criminal Appeal No. 242 of 1996 is partly allowed. The order of conviction and sentence passed against the appellant-accused No. 4 shridhar Vasantrao Jadhav for the offence punishable under Section 302 read with Section 149 of Indian Penal Code is set aside. He is, however, convicted for the offence punishable under Section 325 of Indian Penal Code and is directed to suffer rigorous imprisonment for two years and to pay fine of Rs. 5,000/- in default, to suffer rigorous imprisonment for six months. The accused No. 4 is on bail. His bail bonds stand cancelled. He is directed to surrender before lower Court immediately. He is entitled to get set off under Section 428 of the Criminal Procedure Code. (C) Criminal Appeal No. 586 of 1996 filed by the State, challenging the acquittal of the accused Nos. 1 to 5 for the offence punishable under Section 302 read with Section 149 of indian Penal Code is dismissed. He is entitled to get set off under Section 428 of the Criminal Procedure Code. (C) Criminal Appeal No. 586 of 1996 filed by the State, challenging the acquittal of the accused Nos. 1 to 5 for the offence punishable under Section 302 read with Section 149 of indian Penal Code is dismissed. Order accordingly.