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
