the appellants and the other accused were further charged under section 324 read with section 149 of the indian penal companye.
the companyplainant choharjasing and nandlal are brothers.
choharjasing and nandlal were all thin and of weak build.
though the injuries on choharjasing and nandlal are numberdoubt serious the evidence does number satisfactorily establish that they were caused by the accused in furtherance of their common intention and that they formed an unlawful assembly and used force or violence and they rioted with deadly weapons in prosecution of their companymon intention.
as to the incident on the morning of 16 october 1964 the trial companyrt said that the time of recording the companyplaint on 16 october 1964 was 11.05 am.
there is numbercontradictory police statement of awadh narayan in relation to appellant number 3.
nandlal and ramkeshwarsing were employed at premier automobiles at kurla.
appellants number 2 3 and 4 had also lathis or something like iron bars.
anumberher prosecution witness dinanath was a shopkeeper residing at halav pool kurla.
witness awadh narayan spoke of appel lant number 3.
witness awadh narayan said that he knew all the appellants and he saw sticks in their hands.
he said that in his statement to the police he mentioned the names of appellants number 1 and 2.
there is numbercross examination of dinanath that appellant number 3 gave a blow with a stick to nandlal.
chollarjasing.
on his return he was told by his brother nandlal about the quarrel and that the appellants and anumberher accused had given a threat and enquired as to where choharjasing was.
the prosecution witness awadh narayan who resided at moturam chawl was also employed at premier automobiles.
choharjasing then returned to his room and launched with his brother nandlal companysin ramkeshwarsing and brother in law gaitrising.
on the morning of 15 october 1964 nandlal brought a truck load of earth and spread the same in front on their room.
appellant number 3 also resided at halav pool chawl kurla and was employed at premier automobiles kurla.
the first appellant dealt in milk and resided at maulana chawl halav pool kurla.
the relation between cho harjasing and his brother nandlal on the one hand and appellants number 1 and 2 on the other were strained for some time.
ramkeshwarsing had failed to go to the police station of his own accord.
he said that appellant number 2 had a stick in his hand and appellant number 2 assaulted nandlal on his head.
on the morning of 16 october 1964 choharjasing left his room and went to podar hospital at worli for undergoing an operation for fistula.
the further evidence is that appellant number 2 thrust the lathi into choharjasings mouth and be lost four of his teeth as a result of that.
the high court arrived at these companyclusions.
he also said that all the appellants companytinued assaulting choharjasing and nandlal.
the other witnesses choharjasing nandlal awadh narayan and dinanath all spoke about the appellants who assaulted choharjasing and nandlal.
appeal by special leave from the judgment and order dated the june 10 1968 of the bombay high companyrt in criminal appeal number 667 of 1967.
the accused were hefty in build.
criminal appellate jurisdiction criminal appeal number 138 of 1968.
the van was taken to the place of incident.
he companyroborated nandlals evidence that appellant number 2 assaulted with a stick choharjasing on the mouth.
the police directed choharjasing to approach the proper criminal companyrt.
nandlal was with choharjasing.
ramkeshwarsing was inside the room.
they resided in room number 5 of vidya bhuvan kurla along with their cousin ramkeshwarsing and gayitrising brother in law of choharjasing.
the incident on the morning of 16 october 1964 companyld number be believed and therefore the entire prosecution would fail.
his further evidence was that appellant number 2 gave a straight and perpendicular blow with a stick on the mouth of choharjasing.
choharjasing went to the police station and filed a number cognizable companyplaint.
choharjsing.
witnesses awadh narayan and dinanath were present there.
there is no contradictory police statement as far as witness ramkeshwarsing is companycerned in relation to appellant number 3.
the defence that accused number 1 was assaulted and seeing this accused number 4 came there and he was assaulted cannumber in the circumstances be overlooked.
the sessions companyrt was wrong in holding that ramkeshwarsing did number mention the name of appellant number 2.
witness dinanath said that he knew choharjasing and nandlal for a few years and he also knumber the appellants.
the high companyrt was companyrect in setting aside the order of acquittal and companyvicting the appellants.with these reasons the trial companyrt acquitted all the five accused.
on that account there was some altercation between him and appellants number 1 2 and 3.
he sat on a charpoy company outside his room.
the trial companyrt was wrong in holding that the names of appellants number 2 and 3 were number mentioned by the witnesses to the police.
and were serious injuries and were likely to cause death if number medically attended to.
appellant number 2 thrust his stick in the mouth of choharjasing and he lost four of his teeth.
it is difficult to say why so many persons would engage in the assault on two weak persons particularly when choharjasing had just returned after operation from the hospital.
ramkeshwarsing did number mention accused number 2 3 and 5.
the medical evidence about the injuries to choharjasing was that the injuries companyld be caused by hard and blunt substance like iron bars and lathis and were likely to cause death if number medically attended to.
choharjasing was number feeling companyfortable after the operation.
choharjasing and nandlal companyld number explain how accused number 1 and 4 came to receive the injuries.
nandlal in his statement to the police also mentioned about appellant number 3.
the appellants surrounded choharjasing and nandlal and started assaulting them with weapons.
the high companyrt set aside the order of acquittal.
in the alternative they were charged under section 324 read with section 34 of the indian penal companye.
the possibility of persons from the crowd feeling enraged at the assault on accused number 1 to 5 who were holding important offices in the local companygress organisation and then rushing forward and inflicting injuries on the assaulters of choharjasing and nandlal two well knumbern persons of the locality cannumber be ruled out as contended for by the defence.
witness dinanath spoke about appellant number 3 assaulting choharjasing and nandlal.
and nandlal were put into the van and removed to the hospital.
they were put in the police van.
it does number follow that appellants number 2 and 3 were number at the scene of occurrence and did number companymit the acts of assault just because there was numberinjury on them.
that companytention is unacceptable because of the clear and companyvincing evidence of several witnesses about appellants number 2 and 3 assaulting choharjasing and nandlal.
ramkeshwar sing received a blow on left hand.
choharjasing and nandlal were lying unconscious.
at about 5 or 5.30 p.m. the appellants came there.
he returned to his room at about 11 or 12 numbern.
the prosecution case was this.
the high companyrt therefore companyvicted the appellants for injuries sustained by choharjasing nandlal and ramkeshwarsing.
the evidence established that the grievous injury inflicted on choharjasing and nandlal and the simple injury inflicted on ramkeshwarsing were inflicted by the appellants.
appellant number 4 in spite of medical advice left the hospital on 17 october 1964.
on the way the sub inspector met appellants number 1 and 4 each of whom had injuries on their person.
witness awadh narayan did number mention accused number 3.
witness award narayan did number mention accused number 5.
as far as appellants number 1 and 4 are companycerned the high court was companyrect in holding that they were wrongly acquitted by the trial companyrt.
k. dholakia and b. d. sharma for the respondent.
accused number 5 worked as a mehtaji of one jairaj pandye and resided at bhagwat bhuvan halav pool kurla.
witness ramkeshwarsing said that he saw all the appellants and when choharjasing and nandlal had fallen on the ground they were assaulted by all the appellants with sticks and iron bars.
appellant number 1 was armed with a lathi.
the medical evidence about the injuries to nandlal was that those injuries companyld be caused by companyning in companytact with hard and blunt substance such as lathi bamboo stones iron bars etc.
choharjasing and nandlal both fell unconscious.
the names of appellants number 2 and 3 were mentioned by the witnesses to the police.
there is no contradictory police statement on the part of nandlal as far as appellant number 3 was companycerned.
appellant number 4 resided at anumberher chawl at kurla and was also employed at premier automobiles kurla.
the trial court gave these reasons.
as far as appellant number 3 is companycerned there is no contradictory police statement on the part of choharjasing.
the sentences were to run companycurrently.
the presence of accused number 2 and 3 is number free from doubt.
ramkeshwarsing further said that in the statement to the police he mentioned that he saw appellant number 1 2 and two others.
accused number 5 was standing at some distance.
the appellants and the other accused were further charged under section 326 read with section 149 of the indian penal companye.
number was any such contradiction put to nandlal.
nandlal had 5 injuries.
choharjasing went to prosecution witness dinanath and told him about the threats.
as to appellant number 3 choharjasing said that appellants number 3 and 4 carried something like iron bars of a black companyour.
appellant number 1 also shouted to assault.
the sub inspector of police on getting a telephone message came to the spot.
the oral evidence of nandlal in relation to appellant number 3 was that he assaulted nandlal.
in the alter native they were charged under section 324 read with section 34 of the indian penal companye.
choharjasing and ramkeshwarsing did number mention accused number 5.
the injuries on appellants number 1 and 4 were number satisfactorily explained.
appellants number 1 and 4 hit choharjasing.
12 injuries on choharjasing and 5 injuries on nandlal were all serious in nature.
ramakeshwarsing thus spoke of four persons assaulting chohajasing and nandlal.
ramkeshwarsing in his oral evidence said that the appellants assaulted choharjasing and nandlal he said that he did number mention appellants number 3 and 4 in the police statement because he did number knumber them.
ramkeshwarsing and awadh narayan did number mention accused number 2 in their earlier statements.
the assault companytinued.
in his police statement he mentioned appellants number 1 and 2 and he said that two others assaulted choharjasing and nandlal.
nandlal further said that appellant number 2 assaulted him before he fell down and after he bad fallen down all the appellants assaulted him.
appellant number 2 is the brother of appellant number 1 and resided at a nearby chawl at halav pool and was employed at premier automobiles at kurla.
the oral evidence of the witnesses was to that effect.
appellant number 4 had 3 injuries.
nandlal further told choharjasing that the appellants and the other accused had threatened that they would break choharjasings hands .and feet.
ramkeshwarsing did number mention the name of accused number in his statement to the police.
at the time of admission to the hospital choharjasing had 12 injuries.
the appellants and anumberher accused were charged under sec tions 143 147 307 read with section 149 of the indian penal companye.
accused number 5 instigated the appellants by shouting the words dekhte kya ho mar dalo what are you looking at assault them .
the trial companyrt acquitted all the 5 accused.
the four appellants were also charged under section 148 of the indian penal companye.
on behalf of the appellants it was companytended that appellants number 2 and 3 did number receive any injuries and therefore it was improbable that they would be involved in the assault.
iron bars and sticks were number recovered.
he and choharjasing did number implicate accused number 5 in their earlier statements.
he number only stated in his oral evidence that he had mentioned the name of appellant number 2 to the police but this was also number challenged in cross examination.
choharjasing and nandlal were detained in the hospital as indoor patients from 16 october 1964 to 12 numberember 1964.
that evidence was number challenged.
choharjasing fell down.
that was number challenged in cross examination.
in the alternative the appellants were charged under section 307 read with section 34 of the indian penal companye.
s. desai p. s. nadkarni and vineet kumar for the appellants.
the judgment of the companyrt was delivered by ray j. this is an appeal by special leave from judgment dated 10 june 1968 of the high companyrt at bombay setting aside the order of acquittal of the appellants and convicting them under section 325 read with section 34 of the indian penal companye for having assaulted and injured choharjasing and sentencing each of the appellants to four years rigorous imprisonment and a fine of rs.
