EKNATH GANPAT AHER AND ORS.versusSTATE OF MAHARASHTRA AND ORS.

                    [2010] 6 S.C.R. 577


           EKNATH GANPAT AHER AND ORS.                         A
                             V.
          STATE OF MAHARASHTRA AND ORS.
            (Criminal Appeal No. 173 of 2007)

                       MAY 7, 2010
                                                               B
 [V.S. SIRPURKAR AND DR. MUKUNDAKAM SHARMA,
                            JJ.)

     Penal Code, 1860: ss.3021149 :-- Previous enmity over
land - Mob of 75-100 persons entered into clash with C
complainant party - Two persons belonging to complainant
party died and about 9 persons received injuries - About 14
accused persons received injuries including some who
suffered grievous injuries - Conviction of 35 accused persons
by trial Court - High Court acquitted 21 and upheld conviction D
of 14 accused/appellants -:- On appeal, held: There was no
evidence to specifically ascribe any definite role to any of the
accused/appellants - Also there was no explanation regarding ·
the injuries on accused persons - Appelliints entitled to
benefit of doubt and hence acquitted - Criminal trial - Benefit E
of doubt.

      Prqsecution case was that there was a dispute
 between the complainant party and the accused persons
 regarding certain land. On the fateful day, a mob of abouJ
 75-100 people gathered at the place of occurrence. In the F
 clash, PWs 2, 5, 8 and 9 received injuries whereas the two
 others received grievous injuries resulting in their death
 in the hospital. A number of accused persons also
. received injuries including some having received
 grievous injuries.                                         G
    Trial Court convicted 35 accused persons under
ss.302/149 IPC while acquitting one. The High Court, on
appeal, acquitted 21 of the 35 convicted accused
                            577                                H
    578      SUPREME COURT REPORTS               [201 OJ 6 S.C.R.


A   persons. Fourteen convicted accused persons filed the
    appeals.
          Allowing the appeals, the Court
         HELD: 1.1. Nine persons including four witnesses
B   belonging to the complainant party received injuries
    whereas as many as 14 accused persons received
    injuries including some who even suffered grievous.
    injuries. Admittedly, there was a mob of about 75-100
    persons who descended from the hill side to the place
c   of occurrence by pelting stones and a melee followed.
    Not even a single witness including the injured witnesses
    could specifically state as to who had caused what injury
    either to the deceased or to the injured witnesses or to
    the accused. A very general statement was made that the
0   accused persons were armed witti deadly weapons and
    caused injuries to the complainant party. In a situation
    where a mob of 75-100 persons entered into a clash with
    the complainant party it could not have been possible for
    any of the witnesses, who would naturally be concerned
E   with their own safety and to save themselves from the
    assault, to see as to who had inflicted what type of injury
    either on the deceased or on the injured witnesses. In
    view of such omnibus and vague statements given by
    the witnesses, the Court below acquitted as many as 21
    accused persons on the ground that there was no
F   evidence on record to implicate them in the offences
    alleged. There being no other evidence to specifically
    ascribe any definite role to any of the 14 appellants, it
    was difficult to hold that any of the appellant had inflicted
    any particular injury on any of the deceased or the injured
G   witnesses. Unless there is cogent and specific evidence
    attributing a specific role in the incident to the accused
    persons, who were themselves injured and there being
    no explanation forthcoming as to such injuries, it would
    be unsafe to pass an order recording conviction and
H   sentence against the appellants, moreso when the
   EKNATH GAN PAT AHER AND ORS. v. STATE ·OF           /579
                MAHARASHTRA

 prosecution produced, in support of its case{ witnesses      A
 who were inimical to the accused persons. It is crystal
 clear from the records that land of Gat No. 170 was the
 bone of contention between the complainant party and
 the accused. Civil cases with regard to the question of
 title and ownership to the said land were instituted by      B
 both the accused and the complainant party which are
 pending final adjudication. [Paras 19, 20] [586-E-G; 587-
 B-E]

       1.2. It is an accepted proposition that in the case of
  group rivalries and enmities, there is a general tendency C
  to rope in as many persons as possible as having
  participated in the assault. In such situations, the Courts
  are called upon to be very cautious and sift the evidence
  with care. Where after a close scrutiny of the evidence, a
  reasonable doubt arises in the mind of the Court with, _D
  regard to the participation of any of those who were -
  roped in, the Court would be obliged to give the benefit
  of doubt to them. It was an unfortunate incident in which
  two persons lost thei·r precious lives. Not only the
  members of the complainant party received injuries, the E
  members of the accused party were also injured during
  the course of the incident and some of the accused'
  persons even sustained grievous injuries. A bare look at
· the injury report contained in the impugned judgment,
  would prove and establish the said fact. On appreciation F
  of the entire evidence on record, the findings recorded
  by the High Court as also by the trial Court c2nnot be
  upheld. The said findings were against the basic canons ·
  of the Evidence Act and the penal law. The appellants are
  granted benefit of doubt and are acquitted. [Paras 21-23- G
  24] [587-F, G, H; 588-A, B]

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
 No. t73 of 2007.

     From the Judgment & Order dated 14.03.2006 of the High   H
    580      SUPREME COURT REPORTS                [2010] 6 S.C.R.


A Court of Bombay, Aurangabad Bench in Criminal Appeal No.
  617 of 2004.

                                   WITH

    Criminal Appeal No. 174 of 2007.
B
        U.R. Lalit, Shrikant Shivade (for Brij Bhusan) for the
    Appellants.

      Sushi! Karanjakar, Sanjay Kharde, Asha G. Nair, Uday B.
C Dube, Kuldip Singh for the Respondents.

          The Judgment of the Court was delivered by

       DR MUKUNDAKAM SHARMA, J. 1. By this judgment
   and order, we propose t~ dispose of the two appeals filed by
o the fourteen accused persons who have been convicted and
   sentenced by the 2nd Ad-hoc Additional Sessions Judge,
 . Ahmednagar by judgment and order dated 10.09.2004 which
   has been upheld by the High Court of Bombay, Aurangabad
   Bench.
E      2. Originally, there were altogether 38 accused persons,
  out of which two were juveniles. Consequently, the trial Court
  of the 2nd Ad-hoc Additional Sessions Judge, Ahmednagar
  tried 36 accused persons and by judgment and order dated
  10.09.2004 convicted 35 accused persons of the offences
F under various sections of the Indian Penal Code [for short 'IPC']
  including the offence punishable under Section 302 read with i
  Section 149 IPC and the remaining one accused person was
  acquitted.
G        3. Being aggrieved by the aforesaid judgment and order
    of conviction and sentence passed by the trial Court, all the 35
    accused persons filed an appeal being Criminal Appeal No.
    617 of 2004 before the High Court of Bombay, Aurangabad
    Bench. By its judgment and order dated 14.03.2006, the High
H . Court acquitted 21 out of the 35 convicted accused persons
    EKNATH GANPAT AHER AND-ORS. v. STATE OF 581
   MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J,]

    while upholding the order of conviction and sentence of the       A
· · remaining 14 accused persons.

      4. Being aggrieved by the aforesaid order of conviction
  and sentence passed by the High Court, two appeals have
  been filed by the 14 convicted persons which we have heard          B
  together.

       5. The counsel appearing for the parties have taken us
  through the judgments of the Court~ below against which the
  present appeals are filed as also through the evidence on
  record.                                  ·                          C

       6. Before we proceed to discuss the issues that arise for
   our consideration, it would be relevant and appropriate to
   recapitulate the facts out of which the present appeals arise.

       7. Accused numbers 1 to 36 were charge-sheeted and             D
  sent for trial for commltting offences including ofbeing·members
  of an unlawful assembly, for causing grievous hurt in prosecution
  of the common object of the unlawful assembly and also for
  committing murder. The said 36 accused persons were charge-
  sheeted under Sections 143, 147, 148, 149, 325/149, 326/            E
  149, 324/149, 504/149, 506/149, 337/149, 338/149, 341/149,
  307/149 and 302/149 of the IPC. In addition to the aforesaid
  offences, the accused persons were sent for trial for possession
  of weapons in contravention of the provisions of the Arms Act
  and thereby committing offence under Section 4 read with            F
  Section 25 of the Arms Act.

        8. A criminal case [FIR Crime No. 138/2003 - Exh.138]
  was registered on 12.09.2003 on the basis of the complaint of
  one Bajirao Bhaguji Zavare [PW2]. The said complaint was G
  recorded by Mohan Sankar [PW-12], P.S.I. attached to the
  .Police Station, Pamer who has stated that prior to the recording
  of the aforesaid complaint of PW-2, information was received
  on telephone by the Pamer Police Station from the Kotwali
  Police Station, Ahmednagar regarding the admission of injured H
    582      SUPREME COURT REPORTS                   [2010] 6 S.C.R.


A   and the deceased in the hospital of Dr. Deshpande. On receipt
    of the said information, PW-12 immediately rushed to the said
    hospital. On reaching the hospital, he had drawn the inquest
    panchnama of the two dead bodies of deceased Balasaheb
    Rambhau Salunke and Vilas Rambhau Salunke, who had died
B   in the meantime. In the said hospital, he also recorded the
    complaint of PW-2 and thereafter he returned to the Police
    Station whereafter the aforesaid FIR was registered.

           9. It is also alleged that both the accused party as well as
C   the complainant party were in dispute, although, they are
    residents of different villages. It has also come on r.ecord that
    some of the accused persons and the complainant are
    relatives. There is a temple of Khandoba situated at village
    Kamatwadi and the same was initially managed by Khandoba
    Deo Panch Committee constituted of the respectable villagers.
D   Subsequently, Shri Khanderao Deosthan Trust was given the
    responsibility of managing the said temple. It is also alleged
    that Shri Khanderao Deosthan Trust, of which some of the
    accused persons are members, owns and holds several
    properties at village Kamatwadi including the lands Gat Nos.
E   166, 168 and 170, although, there is a serious dispute with
    regard to the title and possession of land, particularly, Gat No.
    170. The deceased and the complainant party claims title in
    respect of 2/3rd of the land Gat No. 170 contending, inter alia,
    that the said land was previously owned by Bhosales from
F   whom some members of the complainant party had purchased
    the said land. It is needless to state at this stage that there are
    civil suits instituted by both the parties and pending in respect
    of title and possession of the aforesaid land. An order of status
    quo was also passed by the trial Court in respect of the said
G   land under its order dated 06.08.2003.

      10. It is alleged that on 12.09.2003 at about 10.00 a.m.
  complainant Bajirao Bhaguji Zavare along with Balasaheb
  Rambhau, Vilas Rambhau, Ratanbai Sulbha, Kantabai,
H Pandurang Maruti Hingade and others went to the land Gat No.
  EKNATH GANPAT AHER AND ORS. v. STATE OF 583
 MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

 170 for removing tomato plants and grass for cleaning the A
 lands. At about 1.00 p.m., a mob of about 75-100 persons of
 Kamatwadi came on the top of north side hill situated adjacent
to land Gant No. 170. It is alleged that the members of the said -
 mob while scaling down the hill also pelted stones, upon which,
the members of the complainant party started running to save B
their lives. They were chased by the accused persons and
thereafter it is alleged that the accused persons beat up the
members of the complainant party by sticks, iron rods and
swords and thereby seriously injuring Balasaheb Rambhau
Salunke, Vilas Rambhau Salunke and" some other persons c
belonging to the complainant party. All the aforesaid injured
persons were rushed to the hospital where Balasaheb
Rambhau Salunke and Vilas Rambhau Salunke were
pronounced dead whereas the rest of the injured persons were
admitted as indoor patients. It is also to be noted that a number
                                                                     D
of accused persons, namely, A-7, A-10, A-12, A-13, A-20, A-
23, A-25, A-27, A-28, A-31, A-33, A-34, A-35 & A-36 rei:;eived
different kinds of injuries including grievous injuries on the vital
parts. It is also alleged that Bajirao Bhaguji Zavare [PW2],
~andurang Maruti Hingade [PW-5], Sulbha Vilas Salunke [PW-
8] and Rathan w/o Balasaheb Salunke [PW-9] were eye-
                                                                     E
witnesses to the said occurrence. Apart from the aforesaid
injured eye-witnesses, several other members of the.
complainant party namely, Janabai Hingade, Babaji Hingade,
Uttam Hingade, Zumberbai Pandurang Hingade were also
injured.                                                             F

    11. On completion of the investigation, police submitted
chargesheet against 36 accused persons inasmuch as two of
the 38 accused persons were found to be juvenile. On
completion of the trial; the trial Court convicted 35 accus~d      G
persons while acquitting the remaining one accused person,
The High Court, on appeal, acquitted 21 of the 35 convicted
accused persons. Hence, the remaining 14 convicted accused
persons have filed the present two appeals.
                                                                   H
    584    SUPREME COURT REPORTS                   [2010] 6 S.C.R.


A      12. Mr. U.R. Lalit, learned senior counsel appearing for the
  appellants submitted before us that the evidence against the
  35 accused persons being similar in nature, the Courts below
  committed an error of law and facts in acquitting the 21 out of
  the said 35 accused persons while maintaining the conviction
B and sentence of the remaining 14 accused persons. He
  submitted that this was done despite the fact that there is no
  independent and specific evidence to prove and establish that
  the said convicted persons have played any independent and
  separate role in committing the aforesaid offences. It was also
c submitted by learned senior counsel that none of the eye-
  witnesses had named any of the accused ascribing to him any
  specific role in causing injuries to the deceased Balasaheb
  Rambhau Salunke and Vilas Rambhau Salunke or to any other
  injured witness.
D       13. Mr. Lalit, after drawing our attention to the evidence of
  the witnesses, submitted that there is an omnibus statement
  involving all the accused persons in the death of Balasaheb
  Rambhau Salunke and Vilas Rambhau Salunke as also for
  injury to some of the members of the complainant party and that
E there is no independent evidence to show the specific role
  played by each one of them in the incident. It was also submitted
  by him that there is total absence of any explanation in respect
  of the injuries sustained by the accused persons, some of
  whom had even sustained grievous injuries. Relying on the
F same, it was submitted by him that when a large mob of about
  75-100 people descended to the place of occurrence and there
  were a number of people from the complainant side also
  present, it ~s not possible to see as to what really happened
  during the melee and therefore when 22 of the 35 accused
G persons were acquitted in view of lack of specific evidence, the
  remaining 14 persons should also have been acquitted.

       14. In the light of the aforesaid submissions of the learned
  senior counsel appearing for the appellants, we have examined
H the records and also heard the learned counsel appearing for
  the State.
  EKNATH GANPAT AHER_AND ORS. v. STATE OF 585
 MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

       15. Admittedly, there is a dispute subsisting between the A
  complainant party and the accused persons regarding the land
  of Gat No. 170. According to the accused persons, the said
  land belongs· to the Trust whereas the complainant party
  alleges that a part of the said land had been purchased by
  some of them from Bhosale group and they therefore tried to B
' enter into possession of the same by removing tomatoes
  planted by PW- 4 who was cultivating the said land. The
  incident happened at about 1.00 p.m. on the fateful date when
  a mob of about 75-100 people descended to the place of
  occurrence. In the melee that followed PWs2, 5, 8 & 9 received c
  injuries1 whereas Balasaheb Rambhau Salunke and Vilas
  Ramb~u Salunke received grievous_injuries and consequently
  they were declared dead at the hospital. A number of accused
  persons also received injuries including some having received
  grievous injuries but no explanation is forthcoming regarding
  the said injuries from the prosecution side.                   D
       16. The High Court based its order of conviction and
 sentence regarding the appellants on the ground that the
 accused had admitted that it was Balasaheb Rambhau
 Salunke and Vilas Rambhau Salunke who had received                  E
 grievous injuries on account of assault by the mob and that the
 right of private defence of protecting the possession of the land
 Gat No. 170 was not available to the accused persons
 inasmuch as the accused had not been able to establish by
 unimpeccable evidence that Devasthan Trust or the accused           F
 who were injured were in possession of land Gat No. 170.

      17. It was also held by the Courts below that the accused
 persons who had sustained injuries were members of the
 unlawful assembly which was formed with the common object
 of committing murder of both the deceased persons and it was        G
 in prosecution of the common object that the acc·used persons
 also caused injuries to the said eye-witnesses. The aforesaid
 findings were recorded by both the Courts below desp\fe
 recording a finding that not even a single eye-witness was able
                                                                     H
    586     SUPREME COURT REPORTS                  [2010] 6 S.C.R.


A   to categorically name the particular accused who had inflicted
    injuries to the deceased or to any of the injured witnesses and
    that only vague and omnibus statements were made.

          18. The High Court disbelieved the statement of Rathan
B   w/o Balasaheb Salunke [PW-9] with regard to identification of
    the assailants on various grounds, one of which was that her
    statement came to be recorded only on 18.11.2003, i.e., the
    date on which the charge-sheet against the accused persons
    came to be filed. Despite the fact that a number of accused
C persons had received injuries and also despite the fact that no
    reason was forthcoming from the prosecution in regard to the
    injuries suffered by the accused persons, the Courts below
    discarded the said injuries holding that the said injuries were
    extremely minor and that injured accused persons could not
    prove that they had been assaulted by the complainant party.
D The Courts below were of the opinion that stand taken by the
  · accused persons was not enough to discard the credible
    evidence of the injured eye-witnesses.

          19. In our considered opinion the aforesaid approach of
E   the Courts below was incorrect. Nine persons including four
    witnesses belonging to the complainant party received injuries
    whereas as many as 14 accused persons received injuries
    including some who even suffered grievous injuries. Admittedly,
    there was a mob of about 75-100 persons who descended from
F   the hill side to the place of occurrence by pelting stones and a
    melee followed. Not even a single witness including the injured
    witnesses could specifically state as to who had caused what
    injury either to the deceased or to the injured witnesses or to
    the accused. A very general statement has been made that the
G   accused persons were armed with deadly weapons and
    caused injuries to the complainant party. In a situation where a
    mob of 75-100 persons entered into a clash with the
    complainant party it could not have been possible for any of
    the witnesses, who would naturally be concerned with their own
H   safety and to save themselves from the assault, to see as to
   EKNATH GANPAT AHER AND ORS. v. STAtE OF 587
  MAHARASHTRA [DR. MUKUNDAKAM SHARMA, J.]

 who had inflicted what type of injury either on the deceasea or      A
 on the injured witnesses.

      20. In view of such omnibus and vague statements given
 by the witnesses, the Court below acquitted as many as 21
   accused persons on the ground that there is no evidence on
  record to implicate them in the offences alleged. There being
                                                                        B
   no other evidence to specifically ascribe any definite role to any
   of the 14 appellants herein, it is difficult to hold that any of the
   present appellant had inflicted any particular injury on any of the
   deceased or the injured witness.es. Unless there is cogent and
. specific evidence attributing a specific role in the incident to c
. the accused persons, who have themselves been injured and
   there being no explanation forthcoming as to such injuries, it
  would be unsafe to pass an order recording conviction and
 1 sentence against the appellants, moreso when the prosecution

   has produced, in support of its case, witnesses who are D
   inimical to the accused persons. It is crystal from the records
   that land of Gat No. 170 is the bone of contention between the,
   complainant party and the accused. As noted above, civil cases
   with regard to the question of title and ownership to the said
   land have been instituted by both the accused and the E
   complainant party which are pending final adjudication.

      21. It is an accepted proposition that in the case of group
 rivalries and enmities, there is a general tendency to rope in
 as many persons as possible as having participated in the
                                                                       F
 assault. In such situations, the Courts are called upon to be very
 cautious and sift the evidence with care. Where after a close
 scrutiny of the evidence, a reasonable doubt arises in the mind
 of the Court with regard to the participation of any of those who
 have been roped in, the Court would be obliged to give the            G
 benefit of doubt to them.

   · 22. There is no doubt that the incident which happened on
 12.09.20d3 was an unfortunate incident in which two persons
 have lost their precious lives. Not only the members of the
 complainant party received injuries, the members of the               H
    588     SUPREME COURT REPORTS              - [2010) 6 S.C.R.


A   accused party were also injur.ed during the course of the
    incident and some of the accused persons even· sustained
    grievous injuries. A bare look at the injury report, which is
    contained in the impugned judgment, would prove and establish
    the said fact
B
         23. On appreciation of the entire evidence on record, we
    cannot uphold the findings recorded by the High Court as also
    by the learned trial Court. In our considered opinion, the
    aforesaid findings are against the basic canons of the Evidence
    Act and the penal law.
c
      24. Consequently, we allow both the appeals and set aside
  the order of conviction and sentence passed against the
  appellants herein and acquit them giving them the benefit of
  doubt. The appellants accused shall be released forthwith
D unless they are required in some other case and those who are
  on bail, their bail bopfjs shall stand discharged.          ·

    D.G.                                        Appeals allowed.·