Criminal Appeal No. 842 of 2005

12th December, 2012

Petitioner Counsel: Mr. KULDEEP PATIL, Mr. VISHWANATH TALUKTE
Respondent Counsel: Mr. P. S. HINGORANI

Cases Cited:
State of Madhya Pradesh Vs. Makhan @ Madan & Ors., (2008) 10 SCC 615 [Para 7]
State of Uttar Pradesh Vs. Gajadhar Singh & Ors., (2009) 11 SCC 366 [Para 7]
Pandurang Chandrakant Mhatre & Ors. Vs. State of Maharashtra, 2009 ALL SCR 2348 =(2009) 10 SCC 773 [Para 7,10]
Roy Fernandes Vs. State of Goa & Ors., 2012 ALL SCR 735 =(2012) 3 SCC 221 [Para 7,9]

JUDGMENT

V. M. KANADE, J. :- Heard the learned counsel appearing on behalf of Appellant/Original Accused Nos. 1 to 7 and 9, and the learned counsel appearing on behalf of Appellant/Original Accused No. 8. The Appellants are challenging the judgment and order dated 20th August, 2005 passed by the Ist Ad-Hoc Additional Sessions Judge, Solapur, convicting them for the offence punishable under Section 143 read with S. 149, Section 144 read with S. 149, Section 147 read with S. 149, Section 148 read with S. 149, Section 302 read with S. 149, Section 506 read with S. 149 of the Indian Penal Code.

2. The prosecution case in brief is as under-

It is case of the prosecution that on the date of incident i.e. 17-3-2004 there were altercations between two rival parties, on the ground of agriculture over a dispute of bund (i.e. the boundaries) of their respective agriculture lands, and the deceased Ankush was abused by the accused. The deceased Ankush told the accused that he would be coming back along with others. Accordingly, the deceased Ankush returned back along with other witnesses to question the accused as to why he had abused the him. According to the prosecution, accused were hiding behind the bushes and were armed with sticks and other weapons. The prosecution case is that when the witness and the deceased questioned the accused, Accused No. 8 Shashikant suddenly came there and inflicted a blow on the chest of the deceased with the knife and Accused No. 1 thereafter assaulted the deceased Ankush with iron rod, as a result of which he fell down. The prosecution case is that other accused also caught hold of the other witnesses.

3. The deceased Ankush was initially taken to the police station, and thereafter he was taken to the nearest clinic. However, they were advised to take the victim to the Primary Health Centre Tembhurni. By the time, deceased Ankush was taken to Tembhurni, but he had succumbed to injuries and died.

4. The prosecution filed charge-sheet against the Accused. Accused pleaded not guilty to the charge framed under Section 143 read with S. 149, Section 144 read with S. 149, Section 147 read with S. 149, Section 148 read with S. 149, Section 302 read with S. 149, Section 506 read with S. 149 of the Indian Penal Code. The prosecution has examined 9 witnesses. The trial court accepted the testimony and convicted the Appellants on the basis of evidence adduced by the prosecution, for the offences punishable 143 read with S. 149, Section 144 read with S. 149, Section 147 read with S. 149, Section 148 read with S. 149, Section 302 read with S. 149, Section 506 read with S. 149 of the Indian Penal Code and sentenced them to suffer imprisonment for life and pay the fine of Rs. 200, Rs. 300/-, Rs.500/-, Rs. 500/-, Rs. 3,000/-, Rs. 500/- on each count respectively. For the sake of convenience, the parties are referred to as the "Accused", as were referred in the original trial.

5. Mr. Vishwanath Talkute, the learned counsel appearing on behalf of Accused No. 8 submitted that the only role attributed to said Accused by the PW 4 Ramchandra Mitkal, PW 7 Mahadev Ankush Mitkal is that he had suddenly assaulted the deceased with a knife on the left side of the chest. It was submitted that the witnesses and the deceased, after there were, initial altercations on the agriculture land, they had threatened to came back, and that they were main aggressors, and the Accused had acted in self-defence. It is submitted that two of the Accused i.e. Accused Nos. 1 and 2 had received injuries in the said assault. He further submitted that the trial Court had erred in coming to the conclusion that the Accused No. 8 had committed the offence punishable under S. 302 of the Indian Penal Code. He submitted that even otherwise, no reliance could be placed on the testimony of the eye-witnesses since they were interested witnesses.

6. The learned counsel Mr. Kuldeep Patil, appearing on behalf of Appellant/Accused Nos. 1 to 7 and 9 submitted that though the witnesses - PW 4 Ramchandra Mitkal and PW 7 Mahadev Mitkal have stated that Accused No. 1 had assaulted the deceased with an iron rod, this fact was not corroborated by the medical evidence. It is submitted that there was no evidence, whatsoever, to show that the said Accused had shared the common object in assaulting the deceased. He submitted that trial court, therefore, erred in convicting these Accused for the offences punishable under Section 149 of I. P. Code. He submitted that the material which was brought on record, clearly indicated that the deceased and the other witnesses had come to their field with an intention of questioning them about earlier altercations and as such it could not be said that the Appellants had acted under the common object of assaulting the deceased and his witnesses. The learned counsel, therefore, submitted that the said Accused had not committed any offence. He submitted that all the witnesses had stated that these Accused i.e. Accused Nos. 2 to 7 and 9 were merely holding the other witnesses and had not assaulted either the deceased or the other witnesses.

7. On the other hand, Mr. P. S. Hingorani, learned APP appearing on behalf of the Respondent-State submitted that all the Accused had acted in carrying out the common object of assaulting the deceased Ankush and the other Accused viz. Accused Nos. 2 to 7 and 9 by holding the other witnesses, had succeeded in allowing Accused No. 8 in carrying out their common intention of committing the murder of deceased Ankush. He relied on the following judgments in support of the case of the prosecution.

(i) State of Madhya Pradesh Vs. Makhan @ Madan & Ors. [(2008) 10 Supreme Court Cases 615];

(ii) State of Uttar Pradesh Vs. Gajadhar Singh & Ors. [(2009) 11 SCC 366];

(iii) Pandurang Chandrakant Mhatre & Ors. Vs. State of Maharashtra, [(2009) 10 Supreme Court Cases 773] : [2009 ALL SCR 2348];

(iv) Roy Fernandes Vs. State of Goa & Ors. [(2012) 3 SCC 221] : [2012 ALL SCR 735].

He submitted that there is no reason to interfere with the findings of the trial court.

8. After having gone through the evidence adduced by the prosecution and also after having perused the impugned judgment and order of the trial court, we are of the view that, so far as Accused Nos. 1 to 7 and 9 are concerned, there is no material on record to indicate that they had shared common object of Accused No. 8, since they were not aware that Accused No. 8 was carrying a knife, which was concealed on his person. The witnesses have stated that Accused No. 8 suddenly took out a knife and assaulted the deceased on his chest.

9. It is necessary, therefore, to see what is the settled position in respect of commission of offence punishable under Section 143 read with S. 149, Section 144 read with S. 149, Section 147 read with S. 149, Section 148 read with S. 149, Section 302 read with S. 149, Section 506 read with S. 149 of the Indian Penal Code. The Apex Court in - Roy Fernandes Vs. State of Goa & Ors, Respondents [(2012)3 Supreme Court Cases 221] : [2012 ALL SCR 735] observed as under-

"22. What then remains to be considered is whether the Appellant as a member of the unlawful assembly knew that the murder of the deceased was also a likely event in prosecution of the object of preventing him from putting up the fence? The answer to that question will depend upon the circumstances in which the incident had taken place and the conduct of the members of the unlawful assembly including the weapons they carried or used on the spot. It was so stated by this Court in Lalji and Ors. v. State of U.P. 1989 (1) SCC 437 in the following words:

"8. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case."

23. The Court elaborated the above proposition in Dharam Pal and Ors. v. State of U.P. 1975 (2) SCC 596 as: SCC p. 603, para 11)

"11. Even if the number of assailants could have been less than five in the instant case (which, we think, on the facts stated above, was really not possible), we think that the fact that the attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours of June 7, 1967, shows pre-planning. Some of the assailants had sharp- edged weapons. They were obviously lying in wait for the buggi to arrive. They surrounded and attacked the occupants shouting that the occupants will be killed. We do not think that more convincing evidence of a pre-concert was necessary. Therefore, if we had thought it necessary, we would not have hesitated to apply Section 34 Indian Penal Code also to this case. The principle of vicarious liability does not depend upon the necessity to convict a required number of persons. It depends upon proof of facts, beyond reasonable doubt, which makes such a principle applicable. (See: Yeshwant v. State of Maharashtra; and Sukh Ram v. State of U.P.). The most general and basic rule, on a question such as the one we are considering, is that there is no uniform, inflexible, or invariable rule applicable for arriving at what is really an inference from the totality of facts and circumstances which varies from case to case. We have to examine the effect of findings given in each case on this totality. It is rarely exactly identical with that in another case. Other rules are really subsidiary to this basic verity and depend for their correct application on the peculiar facts and circumstances in the context of which they are enunciated."

24. Coming then to the facts of the present case, the first and foremost of the notable circumstances is that the Appellant was totally unarmed for even according to the prosecution witnesses he had pushed, slapped and boxed those on the spot using his bare hands. The second and equally notable circumstance is that neither the cycle chain nor the belt allegedly carried by two other members of the unlawful assembly was put to use by them.

25. Mr. Luthra argued that the prosecution had failed to prove that the assembly was armed with a chain and a belt for the seizure witnesses had not supported the recovery of the said articles from the accused. Even if we were to accept the prosecution case that the two of the members of the unlawful assembly were armed as alleged, the non-use of the same is a relevant circumstance. It is common ground that no injuries were caused by use of those weapons on the person of the deceased or any one of them was carrying a knife. The prosecution case, therefore, boils down to the Appellant and his four companions arriving at the spot, one of them giving a knife blow to the deceased in his thigh which cut his femoral artery and caused death.

26. The question is whether the sudden action of one of the members of the unlawful assembly constitutes an act in prosecution of the common object of the unlawful assembly namely preventing of erection of the fence in question and whether the members of the unlawful assembly knew that such an offence was likely to be committed by any member of the assembly. Our answer is in the negative.

27. This Court has in a long line of decisions examined the scope of Section 149 of the Indian Penal Code. We remain content by referring to some only of those decisions to support our conclusion that the Appellant could not in the facts and circumstances of the case at hand be convicted under Section 302 read with Section 149 of the Indian Penal Code.

28. In Chikkarange Gowda and Ors. v. State of Mysore AIR 1956 SC 731 this Court was dealing with a case where the common object of the unlawful assembly simply was to chastise the deceased. The deceased was, however, killed by a fatal injury caused by certain member of the unlawful assembly. The court below convicted the other member of the unlawful assembly under Section 302 read with Section 149 Indian Penal Code. Reversing the conviction, this Court held:

"9. It is quite clear to us that on the finding of the High Court with regard to the common object of the unlawful assembly, the conviction of the Appellants for an offence under Section 302 read with Section 149 Indian Penal Code cannot be sustained. The first essential element of Section 149 is the commission of an offence by any member of an unlawful assembly; the second essential part is that the offence must be committed in prosecution of the common object of the unlawful assembly, or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object."

In the case before us, the learned Judges of the High Court held that the common object of the unlawful assembly was merely to administer a chastisement to Putte Gowda. The learned Judges of the High Court did not hold that though the common object was to chastise Putte Gowda, the members of the unlawful assembly knew that Putte Gowda was likely to be killed in prosecution of that common object. That being the position, the conviction under Section 302 read with Section 149 Indian Penal Code was not justified in law.

29. In Gajanand and Ors. v. State of Uttar Pradesh AIR 1954 SC 695, this Court approved the following passage from the decision of the Patna High Court in Ram Charan Rai v. Emperor AIR 1946 Pat 242:

"Under Section 149 the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behavior, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise.

30. This Court then reiterated the legal position as under: (Gajanand Case AIR 1954 SC 695, AIR p. 699, para 91

"9. . The question is whether such knowledge can be attributed to the Appellants who were themselves not armed with sharp edged weapons. The evidence on this point is completely lacking. The Appellants had only lathis which may possibly account for Injuries 2 and 3 on Sukkhu's left arm and left hand but they cannot be held liable for murder by invoking the aid of Section 149 Indian Penal Code. According to the evidence only two persons were armed with deadly weapons. Both of them were acquitted and Sosa, who is alleged to have had a spear, is absconding. We are not prepared therefore to ascribe any knowledge of the existence of deadly weapons to the Appellants, much less that they would be used in order to cause death."

31. In Mizaji and Anr. v. State of U.P. AIR 1959 SC 572 this Court was dealing with a case where five persons armed with lethal weapons had gone with the common object of getting forcible possession of the land which was in the cultivating possession of the deceased. Facing resistance from the person in possession, one of the members of the assembly at the exhortation of the other fired and killed the deceased. This Court held that the conduct of the members of the unlawful assembly was such as showed that they were determined to take forcible possession at any cost. Sectionbn 149 of Indian Penal Code was, therefore, attracted and the conviction of the members of the assembly for murder was legally justified.

32. This Court analysed Section 149 in the following words: (Mizazi Case, AIR 1959 SC 572, AIR p. 576, para 6)

"6. This section has been the subject matter of interpretation in the various High Court of India, but every case has to be decided on its own facts. The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of section 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all.

33. In Shambhu Nath Singh and Ors. v. State of Bihar AIR 1960 SC 725, this Court held that: (AIR p. 727, para 6)

"6. .. members of an unlawful assembly may have a community of object upto a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he shares the community of object....'(Ed. : As observed in Jahiruddin v. Queen Empress, ILR (1985) 22 Cal 306."

As a consequence, the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly. Decisions of this Court Gangadhar Behera and Ors. v. State of Orissa 2002 (8) SCC 381 and Bishna Alias Bhiswadeb Mahato and Ors. v. State of West Bengal 2005 (12) SCC 657 similarly explain and reiterate the legal position on the subject."

10. Similarly in - Pandurang Chandrakant Mhatra V. State of Maharashtra [(2009) 10 Supreme Court Cases 773] : [2009 ALL SCR 2348], it is observed as under -

"65. Section 149 IPC creates a specific and distinct offence. Its two essential ingredients are:

(i) commission of an offence by any member of an unlawful assembly and;

(ii) such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew it be likely to be committed.

66. In Masalti v. State of U.P. (1964) 8 SCR 133, this Court exposited:

17 ...What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common object specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly....

The legal position laid down in Masalti admits of no doubt and has been followed time and again. However, where a large number of persons are alleged to have participated in the crime and they are sought to be brought to book with the aid of Section 149 IPC, this Court has applied rule of caution taking into consideration particular fact-situation and convicted those accused whose presence was clearly established and overt acts were proved.

72. The High Court in para 36 of its judgment observed that common object of the said unlawful assembly was to cause grievous hurt. A little later in para 37, the High Court held that common object of the unlawful assembly was to make murderous attack on the deceased. At first blush, there seems to be some inconsistency in the judgment but on a deeper scrutiny, we find that it is not so. It is well-known that for determination of common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly before and at the time of attack is of relevant consideration. At a particular stage of the incident, what is object of the unlawful assembly is a question of fact and that has to be determined keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene of incident."

11. Keeping in view the aforesaid observations by the Apex Court, in this case, in our view, if the evidence which has been adduced by the prosecution is taken into consideration, it would reveal that case of the prosecution that Accused were hiding behind the bushes and that the had assaulted the deceased and other witnesses is not established. There is no material on record to indicate that Accused were in fact waiting for the deceased and the other witnesses. On the contrary, the prosecution case, as is specifically stated by the witnesses reveals that the deceased Ankush after the first altercations was over, had threatened the Accused that he would be coming back along with others to question them, and had threatened on dire consequences. It is also an admitted position that the deceased thereafter came along with others and while the Accused were in their field, the incident had taken place. Under these circumstances, therefore, it cannot be said that the Accused had commenced the assault.

12. The trial court, therefore, in our view, clearly erred in coming to the conclusion that offences punishable under Section 143 read with S. 149, Section 144 read with S. 149, Section 147 read with S. 149, Section 148 read with S. 149, Section 302 read with S. 149, Section 506 read with S. 149 of the Indian Penal Code are made out, since there is absolutely no material on record to indicate that Accused Nos. 2 to 7 and 9 had acted in unison with common object of committing the murder of deceased Ankush.

13. So far as Accused No. 1 is concerned, PW 4 Ramchandra Mitkal and PW 7 Mahadeo Mitkal had stated that he had assaulted the deceased with an iron rod. The said evidence has not been corroborated by the testimony of the doctor, who had performed the post mortem on the deceased. PW 5 Dr. Avinash Patil in his cross-examination has stated that there were no injuries on the person of the deceased which could be caused by the iron rod. In view of this admission given by this witness, testimony of PW 4 Ramchandra and PW 7 Mahadeo becomes doubtful regarding the assault by Accused No. 1 on the deceased with an iron rod. This accused, therefore, will have to be acquitted of the offence punishable under Section 143 read with S. 149, Section 144 read with S. 149, Section 147 read with S. 149, Section 148 read with S. 149, Section 302 read with S. 149, Section 506 read with S. 149 of the Indian Penal Code. In view of this, these Accused will have to be acquitted for the said offences.

14. So far as Accused No. 8 is concerned, the question which falls to our consideration is whether the offence committed by this Accused No. 8 would fall under Section 302 of I.P.C.

15. PW 5, Dr. Avinash Patil, who performed the post-mortem of the deceased, has stated that he noticed the following injuries on the person of the deceased-

I. On external examination, following injuries were noticed:-

(i) Sharp cut injury 7 x 3 cm x bony deep over left chest extending slightly horizontally in between 2nd and 3rd rib and upto left lung;

(ii) Abrasion of 4 x 2 cm and 2 x 1 cm over right patella;

(iii) Abrasion of 2 x ½ cm, 3 x 1 cm over left patella;

The witness said slightly horizontally means not exactly vertical or horizontal.

II. On internal examination, following injuries are noticed - Thorax is opened. It was full with blood. Injury to left lung, 5 x 2 cm. sharp cutting injury over anterior aspect of upper lobe.

16. From these injuries, it is therefore, evident that the Accused had not thrust the knife in the chest of the deceased but has pulled down the knife and pointed out his knife to the chest and had brandished it and in that process the deceased had suffered the said injury, apart from the fact that a single blow was given by Accused No. 8 to the deceased. Taking into consideration the internal injuries which have been noticed by PW Dr. Avinash Patil, it cannot be said that the Accused had committed murder of the deceased, and therefore, his case would not fall under Section 302, but would fall under Section 304 Part-II of the Indian Penal Code. Following evidence of PW 4 Ramchandra and PW 7 Mahadeo would be relevant -

PW 4 Ramchandra Mitkal has stated that Accused No. 8 Shashikant rushed towards Ankush and pointed out knife on his chest, and Accused No. 1 assaulted Ankush Mitkal with an iron rod. PW 7, on the other hand, has stated that Accused No. 8 Shashikant Salgar assaulted his father with knife on left side of the chest. This is the only evidence on record, so far as evidence of PW 4 Ramchandra and PW 7 Mahadeo, is concerned as against Accused No. 8.

From the evidence of these two witnesses, therefore, it does appear that Accused No. 8 had suddenly rushed towards the deceased with a knife and had pointed the knife on the chest of the deceased and while he was brandishing towards the deceased he received a sharp cut on the lower left side of his chest. The doctor has given opinion that the thoracic cavity of the deceased was filled with blood. It has also come on record that the deceased initially was taken to the police station, thereafter he was taken to the private clinic of Dr. Patil, who after examining the deceased, told the complainant to admit him in the hospital, and accordingly, he was then taken to Tembhurni Primary Health Centre. In this process, almost much time had elapsed, and the thoracic cavity of the deceased was filled with blood and since no immediate medical aid was given to him, it resulted in his death. Taking into consideration these facts and circumstances, we are of the view that the circumstances which have been brought on record would reveal that the Accused had acted in private defence and in doing so has exceeded his right by assaulting the deceased with the knife on his chest, though the deceased was not armed and as such, therefore, the case of Accused No. 8 would fall under Section 304 Part-II of I.P.C. The judgment and order of the trial Court, therefore, to that extent, so far as Accused No. 8 is concerned, will have to be altered; conviction of Accused will have to be altered from offence punishable under Section 143 read with S. 149, Section 144 read with S. 149, Section 147 read with S. 149, Section 148 read with S. 149, Section 302 read with S. 149, Section 506 read with S. 149 of the Indian Penal Code to the offence punishable under Section 304 Part-II of the I.P.C. Hence, the following order.

Appeal is partly allowed.

(i) Appellant/original Accused Nos. 1 to 7 and 9 are acquitted of the offences punishable under Section 143 read with S. 149, Section 144 read with S. 149, Section 147 read with S. 149, Section 148 read with S. 149, Section 302 read with S. 149, Section 506 read with S. 149 of the Indian Penal Code. These Appellants are on bail. Their bail bonds stand cancelled.

(ii) So far as Appellant/Accused No. 8 - Shashikant Salgar is concerned, his conviction & sentence is altered. He is convicted for the offence punishable under Section 304 Part-II of the Indian Penal Code, and is sentenced to suffer ten years rigorous imprisonment. He has undergone more than 8 years and 6 months imprisonment. Taking into consideration the remissions, he has already undergone the said sentence of imprisonment. Therefore, he be released forthwith, unless required in any other case.

Ordered accordingly.