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Saturday, February 4, 2017

No doubt, in the scuffle that took place, one blow came to be inflicted on the head of Ashok which injury proved fatal. However, this by itself cannot be the reason to conclude that there was any intention to commit his murder. = We, thus, hold that there was no preconceived common object of eliminating the members of Deshmukh family and group and the assembly was not acquired with any deadly weapons either, as held by the High Court. Even the High Court has not pointed out any such evidence. These findings are hereby set aside. The conviction of the appellants under Section 302 IPC is converted into Section 304-II IPC for which the appellants are sentenced for rigorous imprisonment of seven years each. We were informed that all the appellants have already undergone sentence of seven years or more. If that is correct, these appellants shall be released forthwith, if not required in any other case.



                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1305 OF 2011



|VIJAY PANDURANG THAKRE & ORS.              |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|STATE OF MAHARASHTRA                       |.....RESPONDENT(S)           |

                                   W I T H

                      CRIMINAL APPEAL NO. 1300 OF 2011

                   CRIMINAL APPEAL NOS. 1302-1304 OF 2011

                      CRIMINAL APPEAL NO. 1306 OF 2011

                      CRIMINAL APPEAL NO. 1307 OF 2011

                                     AND

                      CRIMINAL APPEAL NO. 1308 OF 2011



                               J U D G M E N T


A.K. SIKRI, J.
                 In all these appeals, there are  21  number  of  appellants
who are all convicted for the offences punishable under Sections  302,  307,
324, 336, 427, 506-II, 148 read with Section 149 of the Indian  Penal  Code,
1860 (for short the 'IPC') by the Additional  Sessions  Judge,  Nagpur  vide
his judgment dated 05.02.2010, which is substantially  upheld  by  the  High
Court vide impugned judgment dated 24.01.2011.  Judgment of the High   Court
in the criminal appeals, that were filed by  the  appellants,   allowed  the
appeals  in part thereby altering  the  charge  under  Section  307  IPC  to
Section 324 of the IPC.  However, rest of the  conviction  recorded  by  the
trial court has been maintained.

2.    The appellants are the residents of Village Badegaon,  Taluka  Saoner,
Nagpur.  Victims of the said crime are also residents of the  same  village.
Persons belonging to the victim's group (known as Deshmukh  Group)  as  well
as those who are accused persons (known as  Choudhary  Group)  are  the  two
rival political groups active  in  the  village  politics.   On  24.10.2002,
elections for Village Panchayat, Badegaon took place.  The  appellants  were
supporting Samata Party and four of their  candidates  got  elected  in  the
said  elections.   On  the  other  hand,  Deshmukh  Group  was  representing
Shetkari Shet Majoor Party and five of their candidates were elected in  the
said elections.  Shetkari Shet Majoor Party was led by  Vijay  Deshmukh  and
Samata Party was led by Bhujangrao Choudhary.  Two days after the  elections
i.e. on 26.10.2002, the incident in question took place.

As per the prosecution, members of the group of accused  persons  hatched  a
conspiracy to eliminate  leading  members  of  Deshmukh  family  for  taking
revenge of their defeat in Gram Panchayat election  and  in  furtherance  of
their common object, committed the murder of Ashok Deshmukh,  and  attempted
to  commit  murder  of  Vilas  Deshmukh,  Vivek  Deshmukh  (PW-9  and   PW-8
respectively), assaulted Dinesh Deshmukh, Arun Deshmukh, Prafulla  Deshmukh,
Sau. Kalpana Deshmukh and Smt. Kausabai Choudhary (PW-6, PW-7, PW-13,  PW-10
and  PW-11 respectively), pelted stones on the houses of Deorao Nakhale  and
Bhimrao Nakhale (PW-12 and PW-16 respectively) and damaged  the  scooter  of
PW-4  Sushil  Deshmukh.   The  incident  was  witnessed  by  seven   injured
witnesses and four eyewitnesses.

The prosecution examined, altogether, 26 witnesses.  Out of these, PW-6, PW-
7, PW-8, PW-9, PW-10, PW-11 and PW-13 were the injured eyewitnesses and  PW-
2, PW-4, PW-5 and PW-18 were eyewitnesses who did not suffer any  injury  in
the incident.  Other witnesses are the doctors  (who  examined  the  injured
persons  and  conducted  postmortem  of  the   deceased   Ashok   Deshmukh),
Investigating Officer, Executive Magistrate, Panch and other witnesses.   On
the other hand, defence examined 16 witnesses in all.

It may be pointed out  that  there  was  no  dispute  that  death  of  Ashok
Deshmukh was homicidal in nature and the testimony of the  doctors  on  this
account is not under challenge.  However, in respect of those  who  suffered
injuries, dispute was as to whether injuries were such  that  there  was  an
attempt to murder these persons.  The  trial  court  convicted  the  accused
persons under Section 307 IPC accepting  the  version  of  the  prosecution.
However,  the  High  Court  in  the  impugned  judgment  has  converted  the
conviction from Section 307 IPC to Section  324  IPC.   Since,  neither  the
State nor the victim has challenged this part, the acquittal  of  appellants
under Section 307 IPC has attained finality.

We may also  mention  at  this  stage  itself  that  there  was  no  serious
challenge by the learned counsel, who appeared for the  appellants,  at  the
time of arguments to the conviction of  the  appellants  under  Section  324
IPC.  Even otherwise we find that  the  conviction  under  Section  324  IPC
warrants to be sustained.  In view thereof,  the  only  question  is  as  to
whether appellants could be convicted  of  offence  under  Section  302  IPC
along with Section 148 read with Section 149  IPC.   Discussion  hereinafter
would be focussed on this aspect.

It may be mentioned that in all 30 persons were charged  under  the  various
Sections mentioned  above.   As  pointed  out  above,  after  analysing  the
evidence of the prosecution as  well  as  that  of  the  defence  and  other
material  produced  on  record,  the  learned  Additional   Sessions   Judge
convicted accused Nos. 1, 2, 4, 6, 9, 10, 12, 13, 16 to 25 and 28 to 30  for
various offences giving different sentence ranging from  one  month  to  six
months under Sections 324,  336,  427,  506-II  and  148  IPC.   Insofar  as
conviction under Section  307  read  with  Section  149  IPC  is  concerned,
rigorous imprisonment for five years was awarded and for offence  punishable
under  Section  302  read  with  Section  149  IPC,  life  imprisonment  was
inflicted upon  the  aforesaid  convicted  persons.  The  remaining  accused
persons were acquitted.  Findings of the trial court are summarised  by  the
High Court in the impugned judgment in the following manner:
      (a)   Accused No. 4 Pandhari N.  Khandal,  Accused  No.  10  Vijay  P.
Thakre, Accused No.13 Kailas Bhoyar, Accused No. 14  Ashok  S.  Pimparamule,
Accused No. 18 Narayan Kothe, Accused No. 19 Baban Karale,  Accused  No.  20
Marotrao Gawande, Accused    No. 23 Chandrashekhar Khorgade and Accused  No.
30 Dilip S. Chachane were identified to  be  present  and  participating  in
various acts of assault.
      (b)   The accused possessed, and have used  deadly  weapons,  such  as
big size sticks and medium size sticks (Ubharis and Zodpas etc.)
      (c)   The accused constituted unlawful assembly.
      (d)   The witnesses depose that the members of the  unlawful  assembly
of accused persons proclaiming  that  they  wanted  to  eliminate  the  main
persons from Deshmukh family, because of the acrimony which they had due  to
defeat in the Panchayat election.
      (e)   Aspects, namely motive and intention, both were proved.
      (f)   The testimonies of the witnesses  were  adequate  to  prove  the
commission of offence charged and stood  to  the  test  of  trustworthiness.
The omissions relied upon by the defence were neither crucial  or  material,
nor were omissions at all.

State as well as the complainant had filed the  appeals  against  those  who
were acquitted, which were dismissed by the  High  Court.   The  High  Court
noted that defence of the appellants was that it was  a  case  of  stampede,
though no attempt was made to explain as to  how  the  stampede  could  have
occurred.   The  fact  of  homicidal  death  and  other  injuries  were  not
disputed.  The enmity between the parties and commotion  were  also  not  in
dispute.  Therefore, one has to  proceed  on  the  basis  that  incident  in
question took place wherein certain persons  belonging  to  Choudhary  Group
attacked the persons of Deshmukh  family.   The  most  vital  question  that
becomes important in these circumstances is as to whether unlawful  assembly
had been formed by the convicted  persons  with  common  object  of  causing
death of Ashok who lost his life in the said attack.   The  High  Court  has
taken note of the injuries as revealed in the postmortem  report  which  the
deceased suffered and noted that the cause of  death  is  one  head  injury.
The High Court further summarised his conclusion in para 50 of the  judgment
which reads as under:
      “50.  The fact that the evidence brought by  the  prosecution,  tested
from any point of view  and  permutations  and  combinations  leads  to  the
conclusion that:-

(1)  It was an unlawful assembly.
(2)  It gathered  after  pre-conceived  common  object  of  eliminating  the
members of Deshmukh family and group.

(3)  The assembly was equipped with deadly weapons, such as Ubharis,  Zodpas
etc.

(4)  Unlawful assembly dealt a fatal assault on Ashok.

(5)  Unlawful assembly dealt a violent and brutal assault on  other  injured
witnesses, namely PWs 6, 7, 8, 9, 10,  11  and  13  (Dinesh  Deshmukh,  Arun
Bhaurao Deshmukh, Vivek Nanaji Deshmukh, Vilas Bhauraoji  Deshmukh,  Kalpana
Vijayrao Deshmukh, Kausalyabai A. Chaudhari  and  Praful  Uttamrao  Deshmukh
respectively), and did stone pelting and damaged the houses of PW 12  Deorao
Nakhale and PW 16 Bhimrao Nakhale, and damaged the scooter of  PW  4  Sushil
Deshmukh.”


Questioning the propriety of the aforesaid  approach  adopted  by  the  High
Court, Mr. Tulsi,  learned  senior  counsel  appearing  in  Criminal  Appeal
No.1300 of 2011 which is filed by  four  appellants,  submitted  that  large
number of persons were implicated as  accused  persons  and  the  manner  in
which the  incident  took  place,  it  was  difficult  for  the  prosecution
witnesses to  identify  as  many  as  30  persons  and  the  possibility  of
implicating even those who were not present at the  time  of  the  incident,
cannot be ruled out, particularly when there was political  rivalry  between
the two groups.  He further submitted  that  motive  for  false  implication
gets supported by the fact that in the elections which took place  two  days
before the incident, five persons from Deshmukh Group were  elected  whereas
from Choudhary Group, lesser  number  of  persons  i.e.  four  persons  were
elected.  It was submitted that Deshmukh Group  was  more  dominating  group
and in these circumstances, there was no question  of  taking  any  revenge.
He also submitted that there was a delay in  lodging  the  FIR  which  could
further lend credence to the  defence  of  the  appellants  that  many  were
falsely roped in.  Furthermore, there was no evidence of any  conspiracy  or
common object and, thus, the ingredients of provision  of  Section  149  IPC
could not be taken and the appellants were wrongly convicted under the  said
provision.  In nutshell,  his  submission  was  fourfold  on  the  following
aspects:
(1)   The entire evidence in the case leaves a room for  doubt  with  regard
to the identification of accused persons.  This is so, because  of  a  large
number of accused persons (30) and even 10-15 more alleged to be present  at
the  time  of  the  incident.   Added  to  this  is  the  fact  that   their
identification is alleged to have taken  place  in  the  moonlight,  no  TIP
thereafter, and identification only in court.
(2)   Delay  in  lodging  FIR,  utilized  for  deliberations  about  how  to
implicate all political opponents.
(3)   There is a clear motive for false implication on  account  of  rivalry
arising out of Panchayat elections in which the accused party had  won  four
seats and complainant party won five out of nine  seats.   The  complainant,
thus, in the absence of any evidence of conspiracy had all  the  opportunity
for false implication.
(4)   In the absence of any evidence of conspiracy,  the  accused  at  worst
can be held responsible for their individual acts and  others  against  whom
there are no specific allegations cannot be held liable as they may be  mere
spectators, the incident having been taken place on a public road.

In support  of  the  aforesaid  submissions,  learned  counsel  referred  to
various  case  laws  as  well.   Other  counsel  appearing   for   remaining
appellants adopted the submissions of Mr. Tulsi.

Learned  counsel  for  the  State,  on  the  other  hand,  relied  upon  the
discussion contained in the judgments of the courts below in support of  the
prosecution case with  the  submission  that  the  appellants  were  rightly
convicted and there was no reason to interfere with the same.

After going through the evidence in detail, we are of the opinion  that  the
prosecution evidence is not sufficient to conclude that any  conspiracy  was
hatched by the appellants with common object to cause the death of Ashok  or
the appellants  are  charged  members  of  the  other  group  with  such  an
objective.  Even as per the prosecution,  the  convicted  persons  were  not
carrying any deadly weapons.  They were armed with Ubharis which  are  small
sticks and Ubharis used by the farmers for disciplining the  bullocks.  This
itself would be sufficient to negate the prosecution version that there  was
a conspiracy and common object to cause fatal harm to  the  members  of  the
opposite group.   At  the  most,  the  appellants  wanted  to  inflict  some
physical harm to the members of the Deshmukh family in order to 'teach  them
a lesson'. Significantly, while discussing  the  charge  under  Section  307
IPC, the High Court itself has gone by the nature of injuries  inflicted  on
other persons and concluded that there was no intention to  cause  death  of
any of those who got injured at the time of  the  incident.  However,  while
dealing with the case of  death  of  Ashok,  the  High  Court  went  by  the
injuries on his person  and  on  that  basis  concluded  that  there  was  a
premeditative motive on the part of the appellants to  murder  him.   Except
the  above,  there  is  no  clear  evidence  of  any  conspiracy  or  common
objective.  In these circumstances, the accused persons, at worst, could  be
held responsible for their individual acts.

Section 149 IPC 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.”


As is clear from the plain language, in order to attract  the  provision  of
the Section, following ingredients are to be essentially established.
(i)   There must be an unlawful assembly.
(ii)  Commission of an offence by any member of an unlawful assembly.
(iii) Such offence must have been committed in  prosecution  of  the  common
object of the assembly; or must be such as the members of the assembly  knew
to be likely to be committed.
            If these three elements are satisfied, then  only  a  conviction
under Section 149, I.P.C., may be substantiated, and  not  otherwise.   None
of the Sections 147, 148 and 149 applies to a person who is  merely  present
in any unlawful assembly, unless he actively participates in the rioting  or
does some overt act with the necessary  criminal  intention  or  shares  the
common object of the unlawful assembly.

In the facts of the  present  case,  we  find  that  common  object  of  the
assembly, even if it is presumed that there was an  unlawful  assembly,  has
not been proved.  The expression  'in  prosecution  of  the  common  object'
occurring in this Section postulates that the act must  be  one  which  have
been done with a view to accomplish the  common  object  attributed  to  the
members of the  unlawful  assembly.   This  expression  is  to  be  strictly
construed as equivalent to in order to attain common  object.   It  must  be
immediately connected with common object by virtue of nature of object.   In
the instant case, even the evidence is not laid on this aspect.  As  pointed
out above, the courts below were influenced by the  fact  that  one  of  the
injuries on the person of Ashok was on his head which became  the  cause  of
death and from this, common object is inferred.

In Mukteshwar Rai v. State of Bihar[1], the accused persons were alleged  to
have formed an unlawful assembly, gathered in a village and set some  houses
on fire and ransacked.  Two persons died as they got  burnt  and  two  could
not be traced.  This Court agreed with the finding of the High Court  as  to
formation of the unlawful assembly.  But as to the finding that  the  common
object of the unlawful  assembly  was  to  commit  murder  took  somewhat  a
different view and observed:

“The specific overt acts attributed to A-1 and five others who are  said  to
have actively participated in setting  the  fire  and  thrown  some  of  the
victims into the fire stand disbelieved.  It may also be noted that none  of
the P.Ws. Is injured and we find from the judgment of the  High  Court  that
none of the witnesses say that any one of these appellants were armed.   The
learned Judge has extracted the incriminating part in each of the  witnesses
against these appellants.  It stated that these accused were  identified  by
those respective witnesses mentioned therein in discussing the case  against
each of th accused.  There is nowhere any mention  that  any  one  of  these
appellants were armed.  In such a situation the question  is  whether  these
appellants also had a common object  of  committing  the  murder.   We  have
given earnest consideration to this aspect. Taking a general picture of  the
case and after a close scrutiny of the evidence we  find  that  two  persons
were charred to death.  This must have been the result of  setting  fire  to
those houses.  With regards the other  two  missing  persons  it  cannot  be
concluded that they were murdered in the absence of any  iota  of  evidence.
Under these circumstances we find it extremely  difficult  to  hold  that  a
common object of the unlawful assembly was to commit murder.”

We would also like  to  quote  the  following  passage  from  Thakore  Dolji
Vanvirji & Ors. v. State of Gujarat[2]:

“3. …Now the question is whether all the  accused  would  constructively  be
liable for an offence of murder by virtue of Section 149 IPC. So far A-1  is
concerned, it is the consistent version of  all  the  eyewitnesses  that  he
dealt a fatal blow on the head with a sword and the medical  evidence  shows
that there was a fracture  of  skull  and  the  blow  must  have  been  very
forceful because even the brain was  injured.  Therefore,  he  was  directly
responsible for the death of the deceased and the  High  Court  has  rightly
convicted him under Section 302 IPC. Now coming to the rest of the  accused,
all the eyewitnesses have made an omnibus allegation against them.  Even  A-
2, according to the eyewitnesses, gave only one blow and that the  remaining
accused gave stick blows. All these  injuries  were  not  serious  and  were
simple. The injury attributed to A-2 was on the cheek  and  the  doctor  did
not say that it caused any damage. So it must also be held to  be  a  simple
injury. Then we find only a bruise and an abrasion  on  the  right  arm  and
some bruises on the back. These injuries did  not  result  in  any  internal
injuries. There was not even a fracture of rib. Therefore they must also  be
simple injuries. It is only injury  No.  1  which  was  serious  and  proved
fatal. Therefore the question is whether under  these  circumstances  common
object of the unlawful assembly was to cause the death of the  deceased  and
whether every member of the unlawful assembly  shared  the  same?  No  doubt
Section 149 IPC is wide in its sweep but in fixing  the  membership  of  the
unlawful assembly and in inferring the common object, various  circumstances
also have to be taken into  consideration.  Having  regard  to  the  omnibus
allegation, we think it is not safe to convict every one  of  them  for  the
offence of murder by applying Section 149 IPC. On a careful  examination  of
the entire prosecution case and the surrounding circumstances, we think  the
common object of the unlawful assembly was only to cause grievous hurt.  But
A-1 acted in his own individual manner and caused one injury with the  sword
which proved fatal.”


No doubt, in the scuffle that took place, one blow came to be  inflicted  on
the head of Ashok which injury proved fatal. However, this by itself  cannot
be the reason to conclude  that  there  was  any  intention  to  commit  his
murder.  If 30 persons had attacked the members  of  Deshmukh  Group,  there
are no injuries on the vital parts of other persons who got injured  in  the
said episode.  Ashok also suffered only one injury on his head and no  other
injury is on vital part of his body.  Had there been  any  common  objective
to cause murder of the members of Deshmukh  Group,  there  would  have  been
many injuries on deceased Ashok as well as  other  injured  persons  on  the
vital parts of their body. On the contrary, it has come on record  that  the
injuries suffered by other persons are on their back  or  lower  limbs  i.e.
legs etc.

We, thus, hold that there was no preconceived common object  of  eliminating
the members of Deshmukh family and group and the assembly was  not  acquired
with any deadly weapons either, as held by the High Court.   Even  the  High
Court has not pointed out any such evidence.  These findings are hereby  set
aside.  The conviction of the appellants under Section 302 IPC is  converted
into Section 304-II IPC for which the appellants are sentenced for  rigorous
imprisonment of seven years each.  We were informed that all the  appellants
have already undergone  sentence  of  seven  years  or  more.   If  that  is
correct, these appellants shall be released forthwith, if  not  required  in
any other case.
            Appeals are allowed partly in the aforesaid terms.


                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                              (R.K. AGRAWAL)

NEW DELHI;
FEBRUARY 02, 2017.
-----------------------
[1]   1992 Supp (1) SCC 727
[2]   1993 Supp (2) SCC 534

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