Sayyad Ali Sayyad and Others vs The State of Maharashtra

V.K. Tahilramani, J.—Criminal Appeal No. 576 of 2012 has been preferred by the appellants i.e. accused No. 1 Sayyad Ali Sayyad, accused No. 2 Abbas Ali Sayyad, accused No. 6 Vaijnath Dagadu Gaikwad, accused No. 7 Magdum Kasam Sayyad and accused No. 8 Munya @ Munir Gaus Shaikh. Criminal Appeal No. 596 of 2012 has been preferred by accused No. 4 -Tabreaj Bhiku Mankar, Criminal Appeal No. 832 of 2012 has been preferred by accused No. 3 - Ayub Papamiya Khan and Criminal Appeal No. 850 of 2012 has been preferred by accused No. 5 - Shree Ram Prabhau Jogdand.

All these four appeals are preferred by the appellants against the judgment and order dated 20.4.2012 passed by the learned Additional Sessions Judge, Pune in Sessions Case No. 231 of 2009. By the said judgment and order, the learned Session Judge convicted and sentenced the appellants as under:--

The learned Sessions Judge directed that all the substantive sentences of imprisonment shall run concurrently.

As all the four appeals are arising out of one and the same judgment, they are being decided by this common judgment. For the sake of convenience, we shall refer to the appellants as they were referred to before the trial Court which are as follows:--

The prosecution case briefly stated, is as under:

"(a) Deceased Akram was the brother of PW 1 Mohammad Zaid Shaikh. The first informant PW 4 Ozer and deceased Akram were friends since childhood. There are five eye witnesses in the present case i.e. PW 1 Mohammad, PW 2 Jahid, PW 3 Firoz, PW 4 Ozer and PW 9 Wasim. All these eye witnesses knew all the accused persons since prior to the incident. About one year prior to the incident, a quarrel took place between the brother of accused No. 2 Abbas with deceased Akram and his friends. A report was lodged by the brother of accused No. 2 Abbas against deceased Akram and his friends. Therefore, Akram and his friends were arrested and sent to jail. About eight days prior to the incident, a settlement was arrived at in a mosque in relation to the case filed by the brother of accused No. 2 Abbas against Akram and his friends.

(b) The incident occurred on the night between 16.12.2008 and 17.12.2008. At about 9.00 p.m., one Raja, friend of deceased Akram had come to meet him and they were chitchatting for long time. At that time, PW 4 Ozer was with Akram. Thereafter, Akram, PW 4 Ozer, Raja and Raja''s friend all went and had dinner in Hotel Madina at about 11.00 p.m. Then Raja and his friend left. Thereafter, PW 4 Ozer and Akram went on motorbike of Ozer to Radio Hotel and had tea. Thereafter, PW 4 Ozer on his motorbike went to drop Akram at Kasewadi. At about 00.15 a.m. on 17.12.2008, PW 4 Ozer and Akram reached near Taufik Mens'' Parlour. Their motorbike was obstructed by accused No. 4 Tabreaj, accused No. 1 Sayyad, accused No. 2 Abbas, accused No. 3 Ayub, accused No. 5 Ram Prabhu, accused No. 6 Vaijnath, accused No. 7 Magdum and accused No. 8 Munya @ Munir. At that time, Akram told accused No. 4 Tabreaj that when the compromise had taken place, there is no point in picking up a quarrel. Then accused No. 4 Tabreaj started assaulting Akram with his hands. PW 4 Ozer requested the accused not to assault Akram. At that time, someone assaulted Ozer from his backside and slapped him. Ozer then went towards Chamanshaw chowk. He saw PW 1 Mohammad, PW 2 Jahid, PW 9 Wasim and others were playing cricket. PW 4 Ozer informed them that accused No. 4 Tabreaj and his associates were assaulting Akram near Taufik Mens'' Parlour. Then all of them came to the spot. They noticed that accused No. 4 Tabreaj was armed with Palghan. Accused No. 2 Abbas and accused No. 3 Ayub were present at the spot armed with scythe. Accused No. 4 Tabreaj dealt blow with Palghan on the head of Akram. Accused No. 1 Sayyad dealt blow with blunt side of Palghan on the head of Akram. Akram fell down on the road near a tempo which was parked near Inayat Bag Shop. At that time, accused No. 4 Tabreaj instigated others not to leave PW 1 Mohammad and to assault him. At that time, accused No. 5 Ram Prabhau was armed with Palghan in his hand. Accused No. 5 Ram Prabhau also wanted to assault PW 1 Mohammad by Palghan on the head but be could not succeed as PW 1 Mohammad stopped the blow with his hand due to which PW 1 Mohammad got injured. Thereafter, all the accused assaulted Akram with stones and pieces of tiles. PW 1 Mohammad rushed to Kasewadi Police Outpost and informed the Police about the incident. Then PW 1 Mohammad along with Police came to the spot. Due to arrival of the police, all the accused persons fled away from the spot. Then Akram was taken to Sassoon Hospital, Pune. PW 1 Mohammad was also taken to the hospital. Meanwhile Akram expired. PW 3 Firoz lodged F.I.R. Thereafter, investigation commenced. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions."

Charge came to be framed against the appellants under Sections 147, 148, 302 r/w 149 or 302 r/w 34, 307 r/w 149 or in the alternative 307 r/w 34 of IPC and 135 r/w 37(1)(3) of the Bombay Police Act. The appellants/accused pleaded not guilty to the said charge and claimed to be tried. Their defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellants as stated in paragraph 1 above, hence, this appeal.

We have heard Advocate Mr. Khamkar for accused Nos. 1 to 6, Advocate Mr. Shetty for accused Nos. 7 and 8 and learned APP for the State in all the appeals. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that there is no merit in the appeals.

The conviction is mainly based on the evidence of five eye witnesses. They are PW 1 Mohammad, PW 2 Jahid, PW 3 Firoz, PW 4 Ozer and PW 9 Wasim. PW 4 Ozer has stated that on 16.12.2008 at 11.00 p.m., Ozer and deceased Akram went to have dinner at Madina Hotel. Thereafter they went to Radio Hotel for tea. Thereafter, Ozer was proceeding towards Kasewadi to drop Akram. At about 00.15 a.m. on 17.12.2008, they reached near Taufik Mens'' Parlour. There their motorbike was obstructed by all the eight accused. Accused No. 4 Tabreaj questioned Akram why he had come there whereupon Akram replied that when a compromise had taken place, there was no point in picking up a quarrel. Then accused No. 4 Tabreaj started assaulting Akram by hand. PW 4 Ozer requested the accused not to assault Akram. At that time, somebody assaulted Ozer from backside and slapped him. PW 4 Ozer then rushed to Chamansha chowk. There PW 1 Mohammad, PW 2 Jahid, PW 9 Wasim and others were playing cricket. PW 4 Ozer informed them that Tabreaj and his associates were assaulting Akram near Taufik Mens'' Parlour. Then all of them came to the spot. PW 4 Ozer has stated that they saw that accused No. 4 Tabreaj was armed with Palghan and he had caught hold of Akram. Accused No. 1 Sayyad, accused No. 2 Abbas and accused No. 3 Ayub were armed with scythes. Then PW 1 Mohammad told the accused not to assault Akram as their previous dispute had already been resolved. Then accused No. 7 Magdum assaulted PW 1 Mohammad on the back and chest with bamboo stick. At that time, accused No. 4 Tabreaj dealt blow with Palghan (scythe) on the head of Akram. Then accused No. 1 Sayyad dealt blow with blunt side of Palghan on the head of Akram. Meanwhile, Akram fell down at the place where one tempo was parked. PW 4 Ozer has further stated that accused No. 4 Tabreaj then instigated all the other accused not to leave PW 1 Mohammad. At that time, accused No. 5 Ram who was armed with Palghan caught hold of PW 1 Mohammad and tried to give blow on the head of PW 1 Mohammad which was warded off by PW 1 Mohammad by his right hand due to which PW 1 Mohammad sustained bleeding injury on his right hand. Then accused No. 8 Munya @ Munir who was armed with scythe tried to give blow on PW 1 Mohammad which was warded off by Mohammad by his left hand. Due to this, PW 1 Mohammad sustained bleeding injury on his left hand. Then accused No. 2 Abbas, accused No. 3 Ayub, accused No. 4 Tabreaj, accused No. 6 Vaijnath and accused No. 7 Munya @ Munir pelted stones and pieces of tiles on the face and head of Akram. Meanwhile, PW 1 Mohammad rushed to Kashewadi Police Outpost. Then Police came to the spot, hence, all the accused ran away from the spot. They took Akram to Sassoon Hospital where the Doctor declared that Akram had already expired. The injuries of PW 1 Mohammad were treated in the hospital.

As stated earlier, when all the accused persons obstructed the motorbike which PW 4 Ozer and the deceased were riding and PW 4 Tabreaj assaulted Akram, PW 4 Ozer went running to Chamansha chowk. There he found PW 1 Mohammad, PW 2 Jahid, PW 9 Wasim and others playing cricket. He informed them that Tabreaj and his associates were assaulting Akram near Taufik Mens'' Parlour. Hence, they all came to the spot. The evidence on record shows that PW 1 Mohammad, PW 2 Jahid, PW 3 Firoz and PW 9 Wasim were playing cricket at Chamansha chowk. PW 1 Mohammad has stated that at about 00.15 a.m., his friend Ozer rushed to the spot where they were playing cricket and informed them that accused No. 4 Tabreaj and his associates were assaulting Akram near Taufik Mens'' Parlour. Therefore, they rushed to the spot. Briefly stated, the evidence of PW 1 Mohammad, PW 2 Jahid, PW 3 Firoz and PW 9 Wasim shows that accused No. 1 Sayyad assaulted Akram with blunt side of Palghan. This is consistently stated by all the five eye witnesses. In addition, PW 2 Jahid and PW 9 Wasim have stated that accused No. 1 Sayyad assaulted Akram by means of stones and pieces of tiles.

As far as accused No. 2 Abbas is concerned, PW 2 Jahid, PW 3 Firoz and PW 4 Ozer have stated that he was holding a scythe in his hand. PW 1 Mohammad and PW 4 Ozer have stated that accused No. 2 Abbas assaulted Akram with tiles and stones.

As far as accused No. 3 Ayub is concerned, PW 1 Mohammad, PW 2 Jahid, PW 3 Firoz and PW 4 Ozer have stated that he was holding a scythe in his hand. In addition, PW 1 Mohammad, PW 2 Jahid, PW 4 Ozer and PW 9 Wasim have stated that accused No. 3 Ayub assaulted Akram with stones and tiles.

As far as accused No. 4 Tabreaj is concerned, PW 1 Mohammad, PW 2 Jahid, PW 4 Ozer and PW 9 Wasim have stated that he assaulted Akram with Palghan on the head. In addition, all the five eye witnesses have stated that accused No. 4 Tabreaj instigated all the other accused to assault PW 1 Mohammad. In addition, as far as Akram is concerned, PW 1 Mohammad, PW 4 Ozer and PW 9 Wasim have stated that accused No. 4 Tabreaj assaulted Akram with stones and tiles.

As far as accused No. 5 Ram is concerned, PW 1 Mohammad has stated that Ram assaulted him with Palghan on his left hand. PW 2 Jahid has also stated that Ram assaulted PW 1 Mohammad. PW 4 Ozer and PW 9 Wasim have stated that Ram tried to assault PW 1 Mohammad which was warded off by PW 1 Mohammad by his hand due to which the hand of PW 1 Mohammad was injured. PW 3 Firoz has also stated that accused No. 5 Ram assaulted Akram with pieces of tiles.

As far as accused No. 6 Vaijnath is concerned, the evidence of PW 1 Mohammad, PW 4 Ozer and PW 9 Wasim shows that he assaulted Akram with tiles and stones. This was after Akram was assaulted by accused No. 4 Tabreaj with a Palghan on the head.

As far as accused No. 7 Magdum is concerned, PW 1 Mohammad, PW 2 Jahid, PW 4 Ozer and PW 9 Wasim have stated that he assaulted PW 1 Mohammad with bamboo stick on his back and chest. PW 3 Firoz, PW 4 Ozer and PW 9 Wasim have further stated that accused No. 7 Magdum assaulted Akram with tiles and stones.

In relation to accused No. 8 Munya @ Munir, PW 1 Mohammad has stated that accused No. 8 Munya @ Munir assaulted him on his right hand with scythe due to which he sustained bleeding injury on his hand. The evidence of PW 2 Jahid, PW 4 Ozer and PW 9 Wasim is on the same lines as PW 1 Mohammad in relation to assault by accused No. 8 Munya @ Munir on PW 1 Mohammad. In addition, PW 2 Jahid, PW 3 Firoz and PW 9 Wasim have stated that accused No. 8 Munya @ Munir assaulted Akram with stones and tiles. This was after PW 4 Tabreaj assaulted Akram with a Palghan (scythe) on the head.

In a decision of the four Judges of the Supreme Court in the case of Masalti Vs. State of U.P., AIR 1965 SC 202 : (1964) 8 SCR 133 , it is held that where a criminal Court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. The Supreme Court further observed that it is the quality of the evidence that matters and not the number of witnesses who give such evidence. But, sometimes, it is useful to adopt a test like the one mentioned above in dealing with the case where there are large number of accused. Keeping in mind this decision, we have carefully scrutinized the evidence and reproduced the consistent account given by the eye witnesses in relation to the accused persons. We find that at least two of the witnesses have given consistent evidence in relation to each accused.

It is the prosecution case that all the eight accused formed an unlawful assembly, the common object of which was to cause the death of Akram as well as PW 1 Mohammad, however, PW 1 Mohammad warded off the fatal blows with his hands due to which he sustained injuries on both his hands. That Akram was assaulted with Palghan on the head and with stones and tiles on his face is borne out by the medical evidence. PW 12 Dr. Chaudhari conducted the postmortem on the dead body of Akram. He noticed in all 22 injuries which are as under:--

"1) Oblique chopped wound on left side of parietal region, 2 cm anterior eminence of 12 x 5 cm. Underlying bone fracture, angles and margins were clean cut;

2) Both eyes were black;

3) Abrasion 3 cm. above left eyebrow 3 x 2 cm.;

4) Horizontal abrasion, 2 cm. above glabella of 3 x 1 cm;

5) Oblique abrasion 2 cm, above right eyebrow 2 x 1 cm;

6) Abrasion 5 cm. above injury No. 5 of 4 x 3 cm;

7) Laceration at the medial angle of left eyebrow of 2 x 1 cm bone deep;

8) Abrasion medial angle of right eyebrow of 2 x 1 cm;

9) Abrasion below right eye of 6 x 3 cm;

10) Abrasion below left eye of 5 cm. in diameter;

11) Abrasion on nose of 5 x 3 cm;

12) Contused laceration on upper lip in the middle against incisors lacerations measuring 3 x.5 cm surrounding area of .75 cm contused;

13) Contused laceration lower lip in the middle against incisors of 2.5 x.75 cm;

14) Laceration on tongue 2 cm behind teeth of 3 x 1 cm;

15) Abrasion on chin 1 cm. in diameter;

16) Multiple abrasions on neck in the middle and left lateral aspect of size varying from .25 cm in diameter to 2 x.75 cm distributed in the area of 5 x 3.5 cm;

17) Abrasion on right shoulder anteriorly measuring 3 x 1 cm;

18) Contused abrasion on right shoulder on postero superior aspect. Abrasion measuring 8 x 4 cm surrounding area of 2 cm contused;

19) Abrasion along right clavicle in the middle measuring 5 x 1 cm;

20) Multiple abrasions on chest in the middle of size varying from .5 x.25 cm to 3.5 x 1.5 cm. distributed in the area of 9 x 5 cm;

21) Abrasion 3 cm below right angle of scapula measuring 3 x 1 cm;

22) Abrasion on pinna of right ear measuring 2 x.5 cm all abrasions and lacerations were brownish red in colour and contusions were reddish purple in colour."

On internal examination, Dr. Chaudhary found the following injuries:--

"1) Corresponding to external injury No. 1, there was clean cut fracture involving both table of skull starting from left frontal region extending over parietal and temporal region, measuring 9 x 1 cm;

2) Corresponding to external injury Nos. 2 to 10, there was a hematoma under scalp. Fracture of right frontal bone measuring 3 x 1.5 cm., fracture of right parietal bone measuring 2 x 1 cm., all bones of base of skull were fractured. There was subdural hemorrhage involving right side of brain. There was subarachnoid hemorrhage with contusion of left frontal lobe measuring 3 x 2 cm. There was subarachnoid hemorrhage with contusion of right frontal lobe, measuring 2 x 2 cm. There was subarachnoid hemorrhage with laceration of left parietal lobe 5 x 3 cm. There was subarachnoid hemorrhage with laceration of right parietal lobe measuring 3 x 2 cm. Laceration of cerebellum was present measuring 7 x 5 cms."

In the opinion of Dr. Chaudhary, the death was caused due to above stated blunt head injury and injury Nos. 2 to 10 along with corresponding injuries which were sufficient in ordinary course of nature to cause death. Dr. Chaudhary opined that injury Nos. 2 to 10 and their corresponding internal injuries can be possible due to heavy and blunt object like Kadappa tile. The other injuries can be caused by means of stones and pieces of tile. The above said injuries can be caused by muddemal Article Nos. 9 to 12 and 13. Injury No. 1 can be caused by means of muddemal Article Nos. 40, 41 and 42, 45. The spot panchnama shows that four stones and four pieces of tiles were found at the spot. These, according to the prosecution, were used by the eight accused to assault Akram. The presence of stones and pieces of tiles at the spot further corroborates the prosecution case.

PW 1 Mohammad, PW 2 Jahid, PW 4 Ozer and PW 9 Wasim have categorically stated that accused No. 4 Tabreaj assaulted Akram with Palghan (scythe) on the head. Thereafter, the other accused assaulted Akram with tiles and stones. This act of the accused persons of assaulting Akram with tiles and stones after he was assaulted by accused No. 4 Tabreaj on the head with a palghan shows that they shared common object of accused No. 4 Tabreaj of causing the death of Akram. The accused persons initially may not have shared the common object of causing the death of Akram, however, once accused No. 4 Tabreaj assaulted Akram on the head with Palghan which is a weapon like scythe and thereafter the other accused assaulted Akram with stones and tiles shows that all of them had the common object to kill Akram. In fact, in the present case, the evidence of PW 4 Ozer who was with deceased Akram first in point of time shows that all the eight accused obstructed deceased Akram and asked him why he had come to that area. Thereafter, they all started assaulting Akram after Akram received a chopped wound on his head. This clearly shows that common object of all the accused was to cause the death of Akram. The fact that accused No. 4 Tabreaj instigated all other accused not to leave PW 1 Mohammad and thereafter PW 1 Mohammad was assaulted by accused No. 5 Ram and accused No. 8 Munya @ Munir with scythe which blows PW 1 Mohammad warded off with his hands shows that they are all involved in an offence under Section 307 read with 149 of IPC.

As stated earlier, it is the prosecution case that after accused No. 4 Tabreaj instigated all the accused persons, accused No. 5 Ram and accused No. 8 Munya @ Munir assaulted PW 1 Mohammad with Palghan and scythe. While warding off the blows, PW 1 Mohammad received injuries on both his hands. This is corroborated by the medical evidence. PW 16 Dr. Marella examined PW 1 Mohammad on 17.12.2008 at 1.30 a.m. He found two injuries on the person of Mohammad i.e. incised wound 5 x 5 cm on right palm thumb web and incised wound 8 x.5 cm on the left palm. According to Dr. Marella, these injuries could have been caused by sharp edged weapon and the injuries could be caused by Palghan and scythe.

It is contended on behalf of the accused that according to PW 1 Mohammad and other witnesses, he was assaulted by accused No. 7 Magdum with bamboo stick on his chest and back. They submitted that the entire prosecution case cannot be relied upon because there is no evidence to show that there was any injury on the chest and back of PW 1 Mohammad. They submitted that this clearly shows that the entire prosecution case is false. As far as this contention is concerned, PW 1 Mohammad was assaulted with a bamboo stick on the chest and back. Every assault need not necessarily lead to a visible injury. Thus, much capital cannot be made out of the fact that no injury was found on the chest and back of PW 1 Mohammad.

Thereafter, it was submitted on behalf of the accused that all the five eye witnesses are interested witnesses and hence, their testimony cannot be relied upon. In support of this contention, reliance was placed on a decision of this Court in the case of Ram Ashrit Ram and Others Vs. State of Bihar, AIR 1981 SC 942 : (1981) CriLJ 484 : (1983) 1 Crimes 130 : (1981) 2 SCC 60 : (1981) SCC(Cri) 324 , wherein it is observed that where the evidence of the interested witnesses is concerned, their testimony had to pass the test of close and severe scrutiny before their testimony could be safely acted upon. We have carefully and closely scrutinized the evidence of all the eye witnesses and we find their testimony to be credible and reliable. Moreover, it may be noted that no omission or contradiction has been brought out in the cross-examination of any of these witnesses.

Reliance is also placed on the decision in the case of Masalti (supra) and the observations in relation to mechanical test. We have already referred to this decision in paragraph 7 above and applying the mechanical test, we have reproduced the evidence of the eye witnesses and it is seen that the evidence of the eye witnesses relating to the role stated by them in relation to assault on deceased Akram and injured witness PW 1 Mohammad passes the mechanical test as set out in the case of Masalti (supra). In relation to every accused, only after two or more witnesses have stated a particular role have we taken it into consideration. Thus, their testimony passes the test of close and severe scrutiny and we find that their testimony to be credible and reliable.

Reliance is also placed on behalf of the accused on a decision in the case of Kashinath Baban Palkar Vs. The State of Maharashtra, (1996) 1 BomCR 33 . Learned Advocates for the accused pointed out that in the said case, only two witnesses who were on inimical terms were examined and their evidence was not relied upon because they were interested witnesses. On careful perusal of the said decision, it is noticed that there was also serious doubt about place of occurrence of the incident. Looking to all these facts and other facts of the case, the evidence of the two eye witnesses was not relied upon. Useful reference may be made to the decision of a bench of 4 Judges in the case of Masalti (supra) wherein it is observed that it would be unreasonable to contend that the evidence given by the witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.

Thereafter, the learned Counsel for the accused stated that Akram was first assaulted on the head with Palghan. This incident occurred in front of Taufik Mens'' Parlour. Thereafter, Akram went about 55 feet away where he was assaulted by all the accused with stones and pieces of tiles. This incident occurred in front of Inayat Bag Shop which was situated 55 feet away from Taufik Mens'' Parlour. It was submitted that if Akram was assaulted on the head with Palghan, there would have been a trail of blood from Taufik Mens'' Parlour to Inayat Bag Shop, hence, it was contended that the entire prosecution case is false. In this connection, reliance is placed on a decision in the case of Kashinath Baban Palkar (supra). In the said case, the body was lying in a pool of blood. The deceased was dragged from the place of the incident to a grocery shop which was situated at a distance of about 184 feet from the place of the incident. Despite this fact, no trail of blood was noticed and in the spot panchnama, there was no mention of any blood. In the present case, the panch witness PW 5 Mohamad Arshad has clearly stated that near Inayat Bag Shop, there was a pool of blood. Spot panchnama Exh. 70 also shows that there was blood at the spot. In the present case, the assault was on the head, hence, blood would have trickled downwards which would have been soaked up by the clothes worn by the deceased, hence, there may not have been a trail of blood from Taufik Mens'' Parlour to Inayat Bag Shop which was about 55 feet away. Merely because no trail of blood was noticed, it would not affect the prosecution case.

Thereafter, it was argued by the learned Counsel for the accused that mere fact that the accused were armed does not show that they shared the common object to cause the death of Akram and to assault PW 1 Mohammad. In support of this contention, reliance was placed on a decision of the Supreme Court in the case of Kuldip Yadav and Others Vs. State of Bihar, AIR 2011 SC 1737 : (2011) CriLJ 2640 : (2011) 4 JT 436 : (2011) 2 RCR(Criminal) 820 : (2011) 4 SCALE 543 : (2011) 5 SCC 324 : (2011) 2 SCC(Cri) 632 : (2011) 5 SCR 186 : (2011) 2 UJ 1222 . In the present case, it is seen that all the accused have indulged in overt act of assaulting Akram. The eye witnesses have stated that all the accused assaulted Akram with stones and tiles. At the cost of repetition, it may be stated that this overt act of assaulting Akram with stones and tiles took place after accused No. 4 Tabreaj assaulted Akram with Palghan on the head which resulted in chopped wound on the head of Akram. Thereafter, accused No. 1 Sayyad assaulted Akram with blunt side of Palghan. Thereafter all accused assaulted Akram with stones and tiles. Due to assault by stones and tiles, 21 injuries were caused to Akram, hence, the decision in the case of Kuldip Yadav would not apply to the facts of the present case.

Learned Counsel for the accused submitted that the common object of the assembly was not to cause the death of Akram and at the most, it can be said that the common object was to cause injury likely to cause the death of Akram and not the death of Akram. To support this contention, they placed reliance on a decision of the Supreme Court in the case of Sarwan Singh and Others Vs. State of Punjab, AIR 1978 SC 1525 : (1978) CriLJ 1598 : (1978) 4 SCC 111 : (1978) SCC(Cri) 549 : (1979) 1 SCR 383 . In the said case, the deceased had sustained only two grievous injuries. Injury No. 2 was an incised wound 3/4" x 1/4" bone deep on the right little finger and injury No. 3 was incised wound 1/3" distal to injury No. 2 at the right little finger cutting the bone underneath and all other injuries were stated to be simple in nature. In the present case, the major injury is the one on the head which was inflicted by Palghan. This injury caused a chopped injury on left side of parietal region and there was underlying bone fracture. It is seen that thereafter all the accused have assaulted Akram with tiles and stones on the face and head. Injury Nos. 2 to 10 caused hematoma under the scalp as well as fracture of right frontal bone measuring 3 x 1.5 cm, fracture of right parietal bone and all the bones of base of skull were fractured. External injury Nos. 2 to 10 also caused subdural hemorrhage involving right side of brain, subdural hemorrhage with contusion of left frontal lobe measuring 3 x 2 cm, subarachnoid hemorrhage with contusion of right frontal lobe measuring 2 x 2 cm, subarachnoid hemorrhage with laceration of left parietal lobe 5 x 3 cm and subarachnoid hemorrhage with laceration of right parietal lobe measuring 3 x 2 cm and laceration of cerebellum was present measuring 7 x 5 m. Looking to the internal injuries which were caused by external injury Nos. 2 to 10 which were caused on account of assault by tiles and stones, it cannot be said that the injuries are simple in nature. In fact, PW 12 Dr. Chaudhary has clearly stated that injury Nos. 2 to 10 along with corresponding internal injuries were sufficient in ordinary course to cause death. Injury No. 1 as seen from the description given above is also a grievous injury. Looking to the nature of the injuries and role played by the accused persons, the decision in the case of Sarwan Singh (supra) cannot be made applicable to the facts of the present case.

Thereafter, learned Counsel for the accused placed reliance on a decision of single Judge of Madhya Pradesh High Court in the case of Santosh and etc. Vs. State of Madhya Pradesh, (2000) CriLJ 1140 : (2000) 1 JLJ 128 . It was pointed out that in the said case, the accused picked up a stone and dropped it from the roof of his house on the head of the deceased which caused his death, hence, it was held that the case would fall under Section 304 Part II of IPC. In the present case, the deceased was first assaulted with a Palghan on the head which caused chopped wound on his head with underlying bone fracture. Thereafter, Akram was assaulted with stones and tiles by all the accused which caused him 21 external injuries which led to serious internal injuries. In the case of Santosh (supra), it was just one act of throwing a stone on the deceased but in the present case, there is continuous and simultaneous assault by the accused persons which led to several external and several serious internal injuries and hence, this decision cannot be made applicable to the facts of the present case.

Thereafter, learned Counsel for the accused placed reliance on a decision of the Supreme Court in the case of Bunnilal Chaudhary Vs. State of Bihar, AIR 2006 SC 2531 : (2006) CriLJ 3297 : (2006) 7 JT 245 : (2006) 6 SCALE 527 : (2006) 10 SCC 639 : (2006) 3 SCR 264 Supp : (2006) AIRSCW 3419 : (2006) 5 Supreme 283 . Reliance was placed on this decision to contend that the present case cannot fall under Section 302 of IPC but it would fall under Section 304 Part II of IPC. This decision was also relied on to contend that case is not made out against the accused persons that they were part of unlawful assembly with common object to murder Akram as well as PW 1 Mohammad. In the said case, there was only one injury sustained by the deceased. Moreover, it was observed in paragraph 13 of the said decision that no witness has proved that the accused persons had come on the scene of occurrence with an intention to commit the murder of Shambhau Raut. It was further observed that none of them had given any blow to the deceased with the weapons they allegedly were carrying with them. In the present case, it is seen that all the accused persons had assaulted deceased Akram with tiles and stones after he was assaulted on the head with a palghan (scythe) by accused No. 4 Tabreaj which caused a chopped wound on his head. In the decision in the case of Bunnilal (supra), it was observed that where all the accused persons had the common object, it can be gathered from the nature of the assembly or behaviour on or before the scene of occurrence. In the present case, the behaviour of all the accused persons of assaulting Akram with tiles and stones after Akram was assaulted with Palghan on the head which caused chopped wound on his head shows that they all shared the common object of committing the murder of Akram. The case of Bunnilal being clearly distinguishable facts, would not apply to the facts of the present case.

Thereafter, it was contended on behalf of the accused that there was a free fight, hence, all the accused persons cannot be held to be liable under Section 302 r/w 149 of IPC and Section 307 r/w 149 of IPC. In support of this contention, reliance was placed on the evidence of PW 16 Dr. Marella. Reliance was placed on his averment wherein he has stated that PW 1 Mohammad was produced by his friends and relatives in Sassoon Hospital and PW 1 Mohammad narrated the history of assault with sharp weapon during a fight. Thus, learned Counsel for the appellants argued that the entire incident took place during a sudden quarrel and hence, the case cannot fall under Section 302 of IPC but it would fall under Section 304 Part II of IPC or at the most, under Section 304 Part I of IPC. However, on going through the entire evidence which includes the evidence of five eye witnesses, we find that there is no material to show that a sudden fight took place between the deceased and PW 1 Mohammad on one side and the accused persons on the other side. It takes two or more to make a fight and in this case, neither PW Mohammad nor the deceased had indulged in a quarrel or fight with the accused persons. In fact, the evidence of PW 4 Ozer would indicate that the deceased Akram did not want to pick up a quarrel as a compromise had already taken place. Hence, we find no merit in this submission.

Thereafter, on behalf of the accused, it was submitted that accused No. 3 Ayub, accused No. 4 Tabreaj and accused No. 6 Vaijnath also received injuries in the incident and the prosecution has not furnished any explanation for the injuries sustained by these accused which fatally affects the prosecution case. In order to show that the said accused had sustained injuries in the incident, reliance is placed on their arrest panchnamas. The arrest panchnama of accused No. 3 Ayub is at Exh. 75. The arrest panchnama shows that accused No. 3 had sustained contusion on his left hand and left leg and there was one small injury on his forehead. All the injuries were simple in nature. As per arrest panchnama Exh. 76, Tabreaj had contusion on his right heel and right arm and accused No. 6 Vaijnath had a contusion on his leg.

Learned APP relied on a decision of the Supreme Court in the case of State of Rajasthan Vs. Shiv Charan and Others, AIR 2013 SC 2342 : (2013) 9 JT 222 : (2013) 8 SCALE 102 : (2013) 12 SCC 76 : (2013) AIRSCW 3901 : (2013) 5 Supreme 129 wherein it was held that non-explanation of serious injuries on person of accused may be fatal to the prosecution case but where injuries sustained by accused are minor in nature, even in absence of proper explanation by the prosecution, story of prosecution cannot be disbelieved. Similar view was taken in decisions of the Supreme Court in the case of Laxman Vs. The State of Maharashtra, (2013) 1 ABR 176 : (2012) 9 JT 561 : (2012) 9 SCALE 589 : (2012) 11 SCC 158 , Rajendra Singh and Others Vs. The State of Bihar, (2000) CriLJ 2199 : (2000) 4 JT 293 : (2000) 3 SCALE 137 : (2000) 4 SCC 298 : (2000) 2 SCR 1073 : (2000) AIRSCW 1314 : (2000) 4 Supreme 435 , Ram Sunder Yadav and Others Vs. The State of Bihar, (1998) 6 AD 369 : AIR 1998 SC 3117 : (1998) CriLJ 4558 : (1998) 3 Crimes 202 : (1998) 5 JT 620 : (1998) 4 SCALE 641 : (1998) 7 SCC 365 : (1998) AIRSCW 3030 : (1998) 6 Supreme 522 and Vijayee Singh and others Vs. State of U.P., AIR 1990 SC 1459 : (1990) CriLJ 1510 : (1990) 2 Crimes 584 : (1990) 2 JT 596 : (1990) 3 SCC 190 : (1990) 2 SCR 573 . The injuries sustained by accused No. 3 Ayub, accused No. 4 Tabreaj and accused No. 6 Vaijnath which are reflected above are clearly simple in nature and it is possible that in the melee, the accused persons may have sustained some minor injuries. On account of these minor injuries, it cannot be said that a fight had taken place between the accused persons and the deceased and the injured witness i.e. PW 1 Mohammad.

Thereafter, it was contended by the learned Counsel for the accused that Akram had sustained only one grievous injury, hence, it cannot be said that the accused persons had intention to cause the death of Akram. In support of this contention, reliance is placed on a decision of the Supreme Court in the case of Bunnilal Chaudhary (supra). Reliance is also placed on a decision of this Court in the case of Rambahadur Bhimsingh Vishwakarma Vs. The State of Maharashtra . In the said case, it was pointed out that there was a sudden quarrel and only one blow was given by the accused person and it was held that the case would not fall under Section 302 of IPC but it would fall under Section 304 Part I of IPC. In the present case, the injuries sustained by Akram are reflected in paragraph 9 above. There is only one chopped wound on the head with underlying bone fracture. However, in addition to this injury, it is seen that there were 21 other injuries on the person of Akram. According to Dr. Chaudhary who conducted the postmortem, injury Nos. 2 to 10 have led to internal injuries i.e. subdural hemorrhage involving right side of brain, subdural hemorrhage with contusion of left frontal lobe measuring 3 x 2 cm, subarachnoid hemorrhage with contusion of right frontal lobe measuring 2 x 2 cm, subarachnoid hemorrhage with laceration of left parietal lobe 5 x 3 cm and subarachnoid hemorrhage with laceration of right parietal lobe measuring 3 x 2 cm and laceration of cerebellum was present measuring 7 x 5 m. The internal injuries were caused due to external injury Nos. 2 to 10 which has been caused due to assault by stones and tiles. External injuries Nos. 2 to 10 have caused serious internal damage. These injuries were serious in nature. Thus, it cannot be said that deceased Akram had sustained only one injury and hence, it cannot be said that there was no intention to cause the death of Akram. As far as PW 1 Mohammad is concerned, the evidence shows that in fact accused No. 5 Ram and accused No. 8 Munya @ Munir assaulted PW 1 Mohammad with scythe/Palghan. The evidence of PW 4 Ozer shows that accused No. 5 Ram tried to assault PW 1 Mohammad on the head with Palghan which blow was warded off by PW 1 Mohammad with his right hand due to which Mohammad received injury on his right hand. PW 4 Ozer''s evidence also shows that accused No. 8 Munya @ Munir tried to assault PW 1 Mohammad with scythe which blow Mohammad warded off with his left hand due to which Mohammad received bleeding injury. It is also clear from the evidence of PW 4 Ozer and other witnesses that accused No. 7 Magdum also assaulted PW 1 Mohammad on the chest and back with bamboo stick.

In the present case, five eye witnesses have been examined. In our view, their evidence is sufficient to prove the case against all the accused beyond reasonable doubt, hence, we find that it is not necessary to advert to the other evidence.

On going through the record, in our opinion, the prosecution has proved it case against all the accused beyond reasonable doubt. Thus, we find no merit in all the appeals. The appeals are dismissed.