1. This case relates to a double murder. One Santu Jarag and his brother Narayan Jarag were murdered in the series of episodes in which another brother Laxman Jarag, PW-13 sustained a number of injuries including grievous injuries. It happened around 3.00 p.m. on 27.7.1984. Altogether, twelve persons were arraigned in the trial court for offences under sections 302, 307 read with Section 149 of the IPC besides offences relating to rioting and unlawful assembly. The trial court acquitted A6 Shiva Rama Jarag, A7 Sambhaji Rama Jarag, A8 Htndurao Keraba Jarag and A12 Shankar Rama Jarag, but convicted the remaining accused. All the same, they were acquitted of the offence under Section 302 read with Section 149 IPC but the main offence found against them did not escalate beyond Section 307 IPC with the aid of Section 149 IPC. When the State of Maharashtra filed an appeal against acquittal of the offence under Section 302 IPC, the convicted persons also filed appeals challenging the conviction and sentence imposed on them. A division bench of the High Court of Bombay had disposed of all the appeals by a common judgment which is impugned in these appeals. As per the said judgment, the total acquittal of some of the accused had been maintained, but the convicted persons were subjected to escalation of the offence from Section 307 to Section 302 with the aid of Section 149 of the IPC and all of them were sentenced to imprisonment for life regarding that main offence. It is unnecessary to mention the sentence imposed on them in regard to the lesser offences.
2. The substance of the prosecution case is the following:
There was dispute over a land as between the members of the family of the deceased on the one side and their landlords on the other. Though the deceased ultimately succeeded in the litigation, a new litigation was launched by the sixth accused Shiva Rama Jarag which also ended in favour of the deceased. Still, they were not able to enjoy the property peacefully and hence, deceased Santu Jarag filed a civil suit in 1982 and obtained a temporary injunction order. This was the background of the episode which took place on 27.7.1984.
3. When deceased - Santu Jarag alighted from the bus, he was confronted by all the accused at about 3.00 p.m. and he was subjected to incessant beating with lethal weapons. Santu Jarag fell down and succumbed to the injuries sustained thereby.
4. The information regarding the above had been conveyed to the members of his family by school children. On hearing the news, the remaining members rushed to the place of occurrence, On the way, they saw armed assailants moving against them and hence, they retreated from the scene but the assailants chased them and succeeded in intercepting PW-13 (Laxman Jarag). All the assailants attacked him with the weapons which were in their possession. When PW-13 (Laxman Jarag) fell down, the accused turned against the deceased - Narayan Jarag launched an attack on him. The daughter-in-law of deceased Narayan Jarag and (PW-14, Savitri Jarag) and her mother one Manjabai Patil (PW-16) tried to save the deceased but in vain, as they too were assaulted by the assailants. Narayan Jarag succumbed to the injuries sustained in the attack.
5. First information report was lodged by PW18 - Ananda Jarag, the son of deceased Narayan Jarag. After arresting the accused and effecting recovery of some weapons, the case was charge-sheeted against all the twelve persons.
6. It is more or less conceded that the only witness who had spoken to the occurrence in which Santu Jarag was done to death was PW18 Ananda Jarag. For some reasons, his evidence was not accepted for that part of the occurrence and the trial court and the High Court side-stepped his evidence in regard to that. We refrain from reconsidering the reasoning on that score.
7. But so far as deceased Narayan Jarag is concerned, the attack on him had been spoken to by four witnesses (PW-10 Sarjerao Jarag, PW-14 Savitri Jarag, PW-16 Manjabai Patil and PW-18 Ananda Jarag). Though the trial court refused to place reliance on the testimony of the said four eyewitnesses, the High Court dissented from the said view and found them quite reliable.
8. PW13 - Laxman Jarag has identified all the present appellants as the assailants who attacked him with lethal weapons, though A5-Tukaram Sambhaji Jarag, A9-Balu Keraba Jarag and A10 Bhika Sambha Jarag had only wooden sticks with them. The reasons stated by the trial court for the disinclination to accept the testimony of the other four eyewitnesses in regard to the attack made on deceased Narayan Jarag, are very flimsy and they were rightly dissented from by the High Court. We do not think it necessary to refer to each of those reasons highlighted by the trial court. Suffice it to say that we are not impressed by such reasoning.
9. PW14 - Savitri had sustained some injuries and PW11 - Dr. Tamhankar Chintamani had examined her on the same day and noticed a contusion on her right shoulder and another contusion on her right arm. We have no reason to disbelieve the evidence of PW11 - Dr. Tamhankar. All the said eyewitnesses have correctly identified the appellants in this case as participants in the two episodes, one in which PW13-Laxman Jarag was attacked and the other in which deceased Narayan Jarag was attacked. At any rate PW11-Laxman Jarag had correctly identified the appellants and A1 - Vyankant Shiva Jarag as the assailants who attacked him.
10. It is prosecution case and established by the testimony of four eyewitnesses that A1 - Vyankant Shiva Jarag and A2 - Lahu Shiva Jarag had an axe with them (each of them) and A3 - Maruti Keraba Jarag, A4, Madhukar Shiva Jarag and A11 - Bhau Shiva Jarag had iron rods with them. We have also no doubt that those assailants armed with axes and iron rods had the common object of causing the death of deceased Narayan Jarag. Hence, their conviction for the offence under Section 302 with the aid of Section 149 IPC need no interference (we may mention that A1, Vyankant Shiva Jarag had died after the High Court rendered the impugned judgment and hence, the criminal proceedings against him stood abated),
11. The above finding is not enough to dispose of these appeals as we have now to turn to the role played by A5 - Tukaram Sambhaji Jarag, A9-Balu Keraba Jarag and AlO-Bhika Sambha Jarag who had only wooden sticks with them. The eyewitnesses have made only a general statement as against those three accused that they too attacked Narayan Jarag but PW13-Laxman Jarag who himself is injured, has stated that those three accused have also attacked him with wooden sticks. A vivisection of the common object as between those accused armed with lethal weapons like axes and iron rods and the three accused who had only wooden sticks is called for on the fact situation in this case because the evidence of the four eyewitnesses mentioned above is not very much helpful in discerning whether A5 - Tukaram Sambhaji Jarag, A9 - Balu Keraba Jarag and A10 - Bhika Sambha Jarag really entertained the common object of murder. We take this view particularly in the light of the finding rendered by the trial court that the offence has not escalated beyond what the accused had done as against PW13 - Laxman Jarag. We are inclined to give the benefit of doubt to A5 - Tukaram Sambhaji Jarag, A9 - Balu Keraba Jarag and A10 - Bhika Sambha Jarag regarding the common object attributed to them for causing the murder of Narayan Jarag.
12. Nonetheless, we are of the opinion that those three accused shared common object for inflicting injuries on PW13 - Laxman Jarag. The injury report on him shows that he had sustained a number of fractures, though the injury sustained by PW13-Laxman Jarag are not enough to make an offence under Section 307 IPC.
13. In the result, we dismiss the appeal filed by A2 - Lahu Shiva Jarag, A3 - Maruti Keraba Jarag, A4 - Madhukar Shiva Jarag and A11 - Bhau Shiva Jarag by confirming the conviction and sentence passed on them by the High Court as per the impugned judgment. But we modify the conviction and sentence passed on A5-Tukaram Sambhaji Jarag, A9 - Balu Keraba Jarag and A10 - Bhika Sambha Jarag and alter their conviction to Section 307 read with Section 149 IPC (instead of Section 302 read with Section 149 IPC). In the circumstances of this case, we deem it fit to restrict the sentence of imprisonment as for the aforesaid three accused (A5 - Tukaram Sambhaji Jarag, A9 - Balu Keraba Jarag and A10 - Bhika Sambha Jarag to the period already undergone by them in respect of all the counts of offences. This means that the said three accused can be released from jail if they are not required in any other case.
14. These appeals are disposed of accordingly.