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1997(8) Supreme 227
SUPREME COURT OF INDIA
(From Bombay High Court)
M.K. Mukherjee and M. Jagannadha Rao, JJ.
Tanaji Govind Misal etc. etc. -Appellants
versus
The State of Maharashtra -Respondent
Criminal Appeal Nos. 499-500 of 1987
With
Criminal Appeal Nos. 501-502 of 1987
With
Criminal Appeal Nos. 503-504 of 1987
With
Criminal Appeal Nos. 505-506 of 1987
With
Criminal Appeal Nos. 507-508 of 1987
With
Criminal Appeal Nos. 509-510 of 1987
With
Criminal Appeal Nos. 511-512 of 1987
Decided on 12.9.1997
Counsel for the Parties :
For the Appellants : U.R. Lalit, Sr. Advocate, Sanjay M. Tripathi, (Ms. Poonam Sharma) Advocate for Ms. Rani Jethmalani, Advocate/Advocates.
For the Respondent : G.B. Sathe, S.M. Jadhav, Advocates.
(ii) Indian Penal Code, 1860-Sections 302/34, 326/149-29 persons were arraigned for rioting, two murders and other related offences-14 convicts who were A1 to A8, A10, A12, A13, A17, A20 and A24 convicted by High Court u/s 302/149, 307/149 and 324/149 IPC-Appeals-Eye witnesses-Concurrent findings of Courts below rule out conclusion of "sudden unpremeditated free fight" between the parties-Injuries suffered by members of both the parties-Sudden assault started with axe blow given by A1-Total tally of injuries suffered by members of complainant party went upto 51-Corresponding tally for five injured on accused side was 15-Except one fracture of left ulna of A4, all other injuries were insignificant-Held, accused had no right of private defence-All accused came on spot armed with axes, spears, lathis etc. to remove babul trees-Held, on facts, all accused shared common object of causing grievous hurt-Conviction of A1 to A6 u/s 302/149 altered to one u/s 302/34 IPC-Conviction of A7, A8, A10, A13 and A17 u/s 302/149 altered to one u/s 326/149 IPC-Conviction u/s 324/149 and 148 upheld-Convictions of A20 and A24 set aside.
Held that to ascertain what was the common object of the unlawful assembly which attacked the complainant party the High Court first pointed out that to decide the same the relevant considerations were, inter alia, the motive, the weapons used in the attack and the conduct of the assailants both before and at the time of the attack. Applying the above principles the High Court observed that taking a comprehensive view of all the relevant materials, the conclusion was irresistible that the common object of the unlawful assembly was to remove babul wood from the scene of offence at any cost, even by committing murders, if necessary. After having considered the evidence in the light of the sequence of events we are however unable to fully subscribe to the above view of the High Court. Judged in the context of the admitted fact that on the previous evening i.e. in the evening of July 29, 1980, A6 had openly given out that on the next morning they would remove the babul trees it is obvious that when on the following morning the accused party came to the spot armed with axes, spears, lathis etc. their purpose was to remove the babul trees at any cost and cause such injury as may be necessary for achieving that object. Along with the above facts and circumstances when the injuries sustained by P.W. 15 are taken notice of, it appears to us that all the accused shared the common object of causing grievous hurt to the members of the complainant party. From the manner in which A1 suddenly started the assault on Ganpati immediately after all the accused persons reached the spot followed by the assault on Vithoba by A2 and subsequent assaults on the former by A3, A5 and A6 and on the latter by A4, it cannot be conclusively said that the other accused persons knew that the murders were likely to be committed in prosecution of their common object so as to attract the second part of Section 149 I.P.C. In other words, in conjointly committing the two murders - that of Ganpati by A1, A3, A5 and A6 and of Vithoba by A2 and A4-the above six accused persons acted beyond the common object of the unlawful assembly. It is true that the mere fact that no overt act has been attributed to the accused persons except A1 to A6 in the two murders is not sufficient to exonerate them from the charge under Section 302/149 I.P.C. But applicability of Section 149 I.P.C. would depend on the facts of each case. In the instant case we are satisfied that the accused shared the common object of causing grievous hurt by deadly weapons to the two deceased - and not of their murders - and P.W.15, who also sustained grievous injuries. They would, therefore, be guilty of rioting as also an offence under Section 326/149 I.P.C. but not under Section 302/149 I.P.C. A1, A3, A5 and A6 are however guilty of the offence under Section 302/34 I.P.C. for committing the murder of Ganpati. Similarly A2 and A4 are guilty under Section 302/34 I.P.C. for committing the murder of Vithoba. (Para 11)
From the record we find that A7, A8, A10, A12, A13, to A17 have been identified by two or more witnesses as the miscreants. Their participation in the incident, therefore, stands fully established. As regards A20 he was identified only by one witness, namely, P.W. 17 as one of the miscreants who assaulted Jalinder. But then we find that in the first statement that he made before the police he did not name him. He is, therefore, entitled to the benefit of reasonable doubt. Similar benefit should also go to A24 for though P.W. 8 testified about his involvement in the incident, in the F.I.R. he did not assign him any role. (Para 12)
JUDGMENT
M.K. Mukherjee, J.-Twenty nine persons were arraigned before an Additional Sessions Judge of Solapur for rioting, two murders and other related offences. The trial Judge convicted nineteen of them under Sections 148, 302/149, 307/149 and 324/149 I.P.C. and acquitted the rest. For the conviction under Section 302/149 I.P.C. the trial Judge sentenced three of the convicts to imprisonment for life and the remaining sixteen to rigorous imprisonment for two years each and fine. For the other convictions he sentenced them to different terms of imprisonment and fine with a direction that the substantive sentences shall run concurrently. Assailing the above judgment the nineteen convicts filed one composite appeal. The State also filed two appeals: one for setting aside the acquittal of the ten accused persons and the other for enhancement of the sentences imposed upon the nineteen convicts. A revision application was also filed by the complainant seeking similar reliefs. While admitting the appeal of the convicts the High Court issued a suo motu rule calling upon them to show cause why their sentences recorded under Sections 302/149. 307/149 and 324/149 I.P.C. should not be enhanced. In disposing of all the matters by a common judgment the High Court set aside the convictions of five of the nineteen convicts and upheld those of the other fourteen. After upholding the conviction the High Court enhanced the sentences of those convicts who were imposed rigorous imprisonment for two years under Section 302/149 I.P.C. to imprisonment for life. Aggrieved by the dismissal of their appeals the fourteen convicts (who where arrayed as A1 to A8, A10, A12, A13, A17, A20 and A24 and henceforth will be so referred to) have filed these appeals which have been heard together and this judgment will dispose of them.
2. The prosecution case, briefly stated, is as under:
(a) In village Panchagaon Khurd, which is within the jurisdiction of Sangola Police Station, there is a small uninhabited open site (locally known as Padik ) bearing Gram Panchayat No. 106. The above Padik along with the babul trees standing thereon belonged to and was in possession of Sheshappa Vithoba Misal (P.W. 15) and his associates. On or about July 18, 1980 A1, A3, A5 and A6 cut some branches of those trees and left them there. In the evening of July 29, 1980 P.W. 15 and some of his associates removed those branches from the Padik and brought them to another open site near the house of one Sida Pandurang. When A6 asked P.W. 15 about such removal the latter replied that the trees belonged to them. He also questioned the right of A6 to cut them.
(b) On the following morning i.e. on July 30, 1980, at or about 7 A.M. the twenty nine accused persons along with three more namely, Dattu (since dead), Bhausaheb Sidram and Appasaheb Saidram (both absconding) came to the place where the branches were stacked, armed with deadly weapons such as axes, spears, iron bars and sticks and started removing them. On getting that information P.W. 15, his brothers and associates reached there and asked the accused persons not to remove the branches. Immediately thereupon A1 inflicted an axe blow on the head of Ganpati felling him down. When Vithoba went to the rescue of Ganpati, A2 inflicted an axe blow on his head who instantly slumped down. All the accused persons then started assaulting Ganpati and Vithoba and other members of the complainant party as a consequence whereof Ganpati and Vithoba breathed their last on the spot, while Kashinath (P.W. 8), Sarjarao (P.W. 12), Murlidhar (P.W. 14), Sheshappa (P.W. 15) and Jalinder (P.W. 17) sustained injuries. During the incident A3 to A7 also received injuries.
(c) Accompanied by the other four injured P.W. 8 then went to Singola Police Station in a bus and lodged the First Information Report at 11.30 A.M. In course of the investigation that followed, usual steps for holding inquest, preparing panchnama of the scene of offence, seizures of blood sta
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